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National Railroad Passenger Corp. v. Cimarron Crossing Feeders

United States District Court, D. Kansas

November 14, 2018

National Railroad Passenger Corp. and BNSF Railway company, Plaintiff, and Everett Owen, et al., Intervenors
v.
Cimarron Crossing Feeders, Defendants. Michael Lee Rounds, Plaintiff,
v.
National Railroad Passenger Corp., doing business as Amtrak, et al., Defendants.

          MEMORANDUM AND ORDER

          J. Thomas Marten, Judge

         On March 13, 2016, employees of Cimarron Crossing Feeders left a large feed truck unattended. The truck rolled down a hill, crossed a highway, and smashed into train tracks owned by BNSF Railway. The Cimarron employees retrieved the truck - but told no one of the accident, or the fact that the truck had bent the rails about nine inches out of alignment. Shortly after midnight the next day, an Amtrak passenger train reached the misalignment and derailed.

         Amtrak and BNSF have sued Cimarron for negligence, recklessness, and trespass. Several passengers, intervening in this action and presenting a separate claim (Rounds v. National R.R. Passenger Corp., No. 18-1081-JTM (D. Kan.)), have made claims against Cimarron, but also have advanced various claims against Amtrak and BNSF. Cimarron denies liability, contends that Amtrak and BNSF were acting as a joint venture, and argues that their fault contributed to the accident. The matter is scheduled for trial on liability issues to begin December 6, 2018.

         The present Order addresses Motions for Summary Judgment filed by plaintiffs Amtrak and BNSF (Dkt. 398, 400, 402, 463) as to the claims made against them, as well as various related motions. (Dkt. 432, 436, 438, 478, 480, 482). The court denies plaintiffs' appeal (Dkt. 468) from the decision of the Magistrate Judge to permit plaintiffs to add to the Pretrial Order (Dkt. 461) claims by the Intervenor that the Amtrak locomotive used a defective headlight. While recognizing a close question, the court also denies plaintiffs' request for sanctions against Intervenors' counsel for the submission of evidence in bad faith. The court otherwise grants plaintiffs' motions.

         There is nothing in the voluminous record to establish any legal fault on the part of Amtrak or BNSF. The only party potentially liable for damages from the derailment is Cimarron.

         Findings of Fact

         Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, the court must examine all evidence in a light most favorable to the opposing party. McKenzie v. Mercy Hospital, 854 F.2d 365, 367 (10th Cir. 1988). The party moving for summary judgment must demonstrate its entitlement to summary judgment beyond a reasonable doubt. Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir. 1985). The moving party need not disprove plaintiff's claim; it need only establish that the factual allegations have no legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir. 1987).

         In resisting a motion for summary judgment, the opposing party may not rely upon mere allegations or denials contained in its pleadings or briefs. Rather, the nonmoving party must come forward with specific facts showing the presence of a genuine issue of material fact for trial and significant probative evidence supporting the allegation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Once the moving party has carried its burden under Rule 56(c), the party opposing summary judgment must do more than simply show there is some metaphysical doubt as to the material facts. "In the language of the Rule, the nonmoving party must come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in Matsushita).

         One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and the rule should be interpreted in a way that allows it to accomplish this purpose. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).[1]

         The morning before the accident, two Cimarron employees were working on the company's feed lot, which is located north of Highway 50 and the BNSF rail line. Kevin Ornelas was operating the feed mill and Arturo Carillo was operating a feed truck, a 2004 Kenworth grain hauling truck, which had an empty weight of at least 26, 900 lbs. and had gross vehicle weight range of 26, 000 to 33, 000 pounds.

         Carillo had made several feed lot runs that morning before Ornelas asked him for help unplugging a “soak leg” that had become clogged on the feed mill. Ornelas needed Carillo to open and close a gate at ground level that runs corn up into the soak tanks, so that Ornelas, standing up on a catwalk over the soak tanks, could make sure the downspout was clean.

         Carillo parked the truck next to the soak tanks and grain elevators facing south in the direction of the railroad track. As Carillo left the truck to help Ornelas, it was parked on an incline facing in a downhill direction away from the mill and toward the highway and railroad tracks.[2]

         Some time between 10:00 and 11:00 a.m., Ornelas, with a clear view of the truck from atop the soak tank catwalk, watched the truck start to roll and yelled down to Carillo that the truck was rolling away.

         Carillo went to get his personal truck, losing sight of the run-away feed truck in the process.

         Ornelas saw the runaway feed truck roll down the hill, across Highway 50, into the ditch running parallel to the train tracks on the south side of the highway, up the opposite side of the ditch, and then back down into the ditch where it stopped, still facing south. The momentum of the thirteen-ton truck was enough that when it crossed the highway into the ditch it became airborne.

         In the ditch, the truck's undercarriage bottomed out before it continued, striking the rail track roadbed. The impact caused a displacement of between seven to ten (but most typically described as a nine) inch displacement of the tracks.

         The Kansas Highway Patrol later documented the continuous path of travel of the Cimarron feed truck, the tire mark evidence matching the truck to the railroad track bed damage, and, most importantly, the impact of the truck's bumper with the railroad roadbed causing the railroad tracks to be pushed to the south. The truck hit the track roadbed at a perpendicular angle and stopped when the front bumper struck the railroad roadbed on the north side of the track, shifting the railroad ties and track to the south.

         To reach the feed truck, Carillo drove his personal truck across Highway 50, crossed the railroad tracks at a grade crossing on the south side of the highway, and turned right on a dirt road on the south side of, and running parallel to, the tracks. Carillo parked his personal truck on the dirt road directly across the tracks from where the Cimarron feed truck had come to rest, and walked right over the damaged track.

         Carillo found the still-running feed lot truck in the ditch, sitting perpendicular to the railroad tracks. He moved the truck away from the tracks and drove it back up to the feed lot where he told Rita Tobyne, Cimarron's head feed truck driver, what happened. He asked her to call feed lot manager Maynard Burl and tell him the feed truck had rolled to the other side of Highway 50. Tobyne said she was not going to call Burl.

         Carillo then asked Ornelas to call Burl, which Ornelas did, asking Burl to come out to the feed lot. Ornelas has testified that, while they were waiting for Burl to arrive, he took Carillo back down to the railroad tracks to retrieve his personal vehicle.

         At the time the truck hit the BNSF tracks, there was a railroad crossing sign near where the truck impacted the tracks, which also contains a blue sign with a 1-800 phone number to report problems or emergencies to BNSF.

         Ornelas saw the sign as he crossed over the tracks and was aware of the sign, but neither he nor any other Cimarron employee called the 1-800 phone number to report the truck runaway incident.

         When Burl came to the feed lot, Ornelas showed him the path the truck had taken down the hill, and told him that the truck had gone across the highway and through the ditch on the south side of the highway, and pointed him to where the truck had come to rest.

         Carillo also tried to tell Burl about the path that the truck had taken and where it had come to rest, but Burl said he did not care and that Carillo would probably get fired.

         Burl observed the path that the truck left through the field from the mill to the highway. After being told what had happened, Burl did not go down to examine the railroad tracks and did not ask either Ornelas or Carillo whether there had been any damage to the tracks.

         Instead, he yelled at Carillo that he did not care that the truck had crossed the highway, criticized Ornelas for asking Carillo to help unclog the soak leg, pointed out to both men that the truck had likely suffered several thousand dollars in damage, and told Carillo that he would probably get fired or written up. Burl straightened the feed truck's bent muffler, and went home.

         Later in the afternoon Cimarron assistant manager Jim Fairbank came to the mill. Ornelas told him that the feed truck had rolled down the hill and across the highway, and Fairbank laughed about it and made no effort to see for himself where it had rolled.

         No one at Cimarron did any further investigation, or contacted the railroad, law enforcement, or any other party to inform them of the truck roll-away incident.

         Earlier the same morning, at about 7:26 a.m. (some three hours before the roll away event) a BNSF train with lead locomotive BNSF 3917 passed over the location where the Cimarron truck hit the track roadbed, and the locomotive video captured the track conditions showing no track anomaly.

         After the 7:26 BNSF train, the next train to pass over the area was the Amtrak 4 train, which is the subject of the present action. Led by locomotive AMTK 153, Amtrak 4 reached the impact location about 12:02 a.m. on March 14, 2016.

         The rear portion of Amtrak Train 4 derailed immediately after passing over the misalignment caused by the Cimarron truck. Investigators of the Federal Railroad Administration (FRA) and National Transportation Safety Board (NTSB) determined that the misalignment was within twenty-five feet of milepost 373.07.

         Before the feed truck incident, there had never been a derailment at that location. In the week before the derailment alone, more than 30 trains passed over the location of the derailment without incident.

         Immediately following the derailment, investigators of the Kansas Highway Patrol, the FRA, and the NTSB reported to the scene to investigate. The NTSB examined:

a. the train event recorder data and the train on-board image recorders;
b. the track conditions at the derailment scene including the point of impact by the feed truck, the point of derailment, the track conditions at the derailment scene, and BNSF's track maintenance, track inspections and track inspection records;
c. the mechanical condition of the Amtrak train including Amtrak locomotive 153;
d. records of the operational testing, training and certifications of the Amtrak train crew, the Amtrak train crew's work history and hours of service, the Amtrak train crew's operation of the train, and sight distance observations on March 17, 2016, to a lighted lantern placed next to the rails (using a different locomotive);
e. a video study of the locomotive video from the Amtrak;
f. signal data and an inspection of signals at various signal locations along the train's route approaching the derailment; and
g. the Amtrak passenger cars involved in the derailment.

         The Kansas Highway Patrol documented all of the post-accident track conditions, conducted a detailed mapping, measurement and inspection of the path of travel of the Cimarron feed truck and its impact to the railroad roadbed, and inspected the Cimarron feed truck. The Highway Patrol's test of the feed truck's emergency brake found that the brake had not been properly set, and with the truck parked on a downhill grade this allowed the truck to roll away across Highway 50 and impact the railroad bed resulting in displacement of the railroad ties and tracks.

         When Ornelas arrived at work at the Cimarron feed lot on March 14, 2016, just hours after the derailment had occurred, and the investigators were already on scene investigating the derailment. Burl told Ornelas to leave the mill, to stay away and not be seen. Burl instructed Ornelas to leave the scene knowing Ornelas had seen the truck roll down the hill and across the highway to the area where the derailment occurred.

         The track at the location of the derailment was classified by BNSF as “Class 3.” The maximum authorized speed for a passenger train on the Class 3 track at the location where the derailment occurred was 60 m.p.h. It is uncontroverted that the Amtrak train was traveling 60 m.p.h. as it approached the derailment location.

         The FRA has enacted numerous regulations establishing the standards with which railroad tracks, ballast, track roadbed and related facilities must comply, generally referred to as Track Safety Standards, which are contained in 49 C.F.R. Part 213. Part 213 also specifies the subject matters upon which railroads must create internal plans, rules or standards pursuant to federal regulations in order to comply gwith regulatory requirements.

         For example, 49 C.F.R. § 213.118 requires railroads with track constructed of continuous welded rail (CWR) to have in effect a plan containing written procedures for the installation, adjustment, maintenance, and inspection of CWR. Although BNSF has adopted and implemented a CWR Plan pursuant to the regulation, the track where the March 14, 2016 Amtrak derailment occurred was not CWR track and, therefore, none of BNSF's CWR procedures were applicable to the track at the point where the derailment occurred. As to the remaining BNSF internal rules, engineering instructions, and track construction standards which have been cited by the Intervenors, including specifically Standard Plan 1000, none of these internal rules, engineering instructions or track construction standards identified above were adopted or created by BNSF pursuant to any federal regulation, order of the FRA, the Secretary of Transportation, or Secretary of Homeland Security.

         The NTSB studied every askpect of the track at the derailment scene, including the point of impact by the feed truck, the point of derailment, the track conditions, and BNSF's track maintenance, track inspections and track inspection record keeping. NTSB investigators and local police agencies documented the continuous set of wheel marks and path of the Cimarron truck to the track. The investigation included a finding that the Cimarron truck crossed the highway continuing towards the railroad right-of-way and struck the ballast shoulder of the track structure.[3]

         The NTSB investigators photographed and measured the “as found” condition of the track structure and lateral shift or misalignment and identified this as the point of impact (POI) upon the track structure.

         Investigators documented where they observed the first markings at ¶ 373.07 on the inside gage face of the north rail approximately twenty-five feet after the POI and determined this was the point of derailment (POD).

         The investigators for the Track and Engineering Group for the NTSB investigation included Richard A. Hipskind of the NTSB and Rick Bruce of the FRA. Hipskind, a track and engineering specialist, prepared the Track and Engineering Chairman Group Factual Report. The NTSB investigators took account of measurements and photographs of the area of the single main track preceding the derailment footprint. The inspection included taking measurements of the track conditions of the undisturbed track at the location of the derailment for compliance with FRA Track Safety Standards. The track field notes measurements were within FRA track safety standards for Class 3 track.

         Investigators for the NTSB also requested, received and reviewed BNSF track inspection records for the most recent three months preceding the derailment, and the FRA examination of those records found that the records met the required frequency and no record deficiencies were noted. Three days before the accident, an FRA-qualified BNSF track inspector inspected the track in the area. The inspection record noted no defects in the vicinity of the derailment-an area that includes the track preceding, and up to, where the train derailed.

         While 49 C.F.R. 213.233 only requires Class 3 tracks carrying passenger trains to be inspected twice weekly, BNSF inspected the track at least four times a week.

         The subject track was visually inspected by FRA-qualified BNSF track inspector Bryce Gilliam five times in the week before the derailment- on March 7, 8, 9, 10, and 11, 2016.

         In addition to the visual inspection, prior to the derailment, BNSF also performed several automated track inspections of the tracks and track components at the site of the derailment including geometry car testing, rail defect testing and rail joint testing.

         On February 1, 2016, a BNSF Geometry car inspected the track at the location of the derailment, and there were no exceptions noted on the approach to or in the vicinity of the derailment. A geometry car inspection was also performed on January 12, 2016, and there were no exceptions noted in that inspection at the location of the derailment.

         Intervenors have not asserted a claim that the track at the location of the derailment violated the specific FRA regulations for gauge (213.53), alignment (213.55) or track surface (213.63 applicable to track runoff, profile and cross-level).

         BNSF performed rail defect testing on the La Junta Subdivision January 27 to 29, 2016, which included the area throughout the derailment footprint. The rail defect testing records did not show any uncorrected rail defects at the point of the derailment. The main track at the location of the derailment was conventional jointed rail and not CWR, and, therefore, joint testing was not required. Further, there was no joint or joint bar identified by the NTSB at the point of derailment. Nevertheless, BNSF conducted joint testing in the pertinent on March 3, 2016, which did not note any defect at the location of the derailment.

         Regulation 213.33, which governs drainage, provides: “Each drainage or other water carrying facility under or immediately adjacent to the roadbed shall be maintained and kept free of obstruction, to accommodate expected water flow for the area concerned.” It is uncontroverted that there was no measurable precipitation at the derailment site for nearly 30 days prior to the derailment. Intervenors' retained expert Alan Blackwell did not look at weather records to determine how much it rained in this area during the year of the derailment. It is uncontroverted there was no standing water at the derailment location on the date of the derailment, and Blackwell testified that he does not know if there was any standing water there during the months before the derailment. Blackwell does not know whether the ballast at the location of derailment was adequately draining water.

         The Intervenors and Blackwell contend that a blocked drainage culvert under a grade crossing contributed to the derailment. But the culvert is located over 1, 000 feet to the east of the derailment, the derailment did not happen at the grade crossing, and the derailed train cars never reached the crossing or the culvert.

         Moreover, Blackwell did not do any objective studies to measure the flow of water through the alleged culvert that he claimed was blocked nor did he even attempt to determine what the expected flow of water was for this area.

         Intervenors also contend that the BNSF track violated 49 C.F.R. 213.103, which sets standards for track ballast. As noted earlier, before the feed truck incident, no train had ever derailed at this location, and, as constructed, the railroad roadbed and track structure was properly performing the function for which it was intended - restraining the track laterally, longitudinally, and vertically under dynamic loads imposed by railroad rolling equipment.

         In the week before the derailment alone, over 30 trains passed over the location of the derailment without incident The Intervenors also contend that the track ballast section, track roadbed and embankment next to the tracks should have been maintained in a manner that would have prevented or allowed it to withstand the lateral impact by the feed truck.[4] However, the Intervenors' expert Blackwell is not aware of anything in any scholarly materials or trade journals that says ballast should be made to withstand vehicle strikes. He does not know of any railroad that puts such requirements in its standards.

         Blackwell is familiar with the FRA's Track Safety Standards Compliance Manual, and he admits there is no portion of that Manual requiring a railroad shoulder be made to prevent impacts from vehicles leaving the roadway.

         In his deposition, Blackwell admitted that the Cimarron truck hit the BNSF track, that the track was not misaligned before the truck hit it, but was misaligned afterwards. However, in his report, Blackwell never mentions the Cimarron truck or its knocking the BNSF track out of alignment. Blackwell has not calculated the amount of force that the truck exerted on the track, does not know the impact force the truck exerted in the track in any measurable, quantifiable unit, does not know how much force was necessary to move the track out of alignment, conducted no analysis regarding how the truck interacted with the track structure at the site of the derailment, and claims not to know, has not done any analysis, and does not to have any opinion about whether this derailment would have occurred if the Cimarron truck had not struck the BNSF tracks. He admits that his analysis of the alleged causes of the derailment is at variance with the findings of the FRA Investigation.

         Intervenors assert that BNSF violated 49 C.F.R. 213.1.[5] As discussed above, Intervenors and their experts claim that the track ballast section, track roadbed and embankment next to the tracks should have been maintained in a manner that would have prevented or allow it with withstand the lateral impact by the feed truck.

         BNSF currently operates over 32, 500 route miles of track in 28 states in the United States. BNSF's railway system is the result of nearly 400 different railroad lines that BNSF merged with or acquired over the span of 160 years.

         BNSF's track in Gray County, Kansas, where the subject derailment occurred, was formerly operated by the Atchison, Topeka, and Santa Fe Railway (ATSF), with which BNSF merged in 1994. This includes BNSF's La Junta subdivision, running from Los Animas Junction, Colorado, to Ellinor, Kansas, more than 400 miles of main line track alone, most or all of which, including the portion in Gray County, Kansas, was constructed 100 years ago. In other words, the railroad roadbed and track structure at the location where the derailment occurred has been in place for over 100 years.

         BNSF's Standard Plan 1000, referenced by Intervenors and their experts, is used as guidance in the construction of its tracks, but it is not a hard and fast standard that BNSF adheres to in all circumstances. This Standard Plan was not intended, nor is it used, to require the re-engineering or reconstruction of all existing tracks on BNSF's railroad system, including those acquired through mergers or acquisitions. Nothing in BNSF's Engineering Instructions used by its maintenance department demands strict adherence to all of the specific dimensions contained in the Standard Plan, and the suggestion that the plan is a one-size-fits-all requirement is neither accurate nor practical.

         Requiring BNSF to change the entire track structure, including ballast sections, sub-ballast, subgrade, and excavations or embankments on all of its existing tracks into compliance with the 1997 Standard Plan is neither feasible or warranted.

         It is uncontroverted that, if the allegations made by Intervenors in this case as well as the claims by Intervenors' experts were accepted, BNSF would be forced to change the track structure, road bed and surrounding embankment topography at not only the location of the derailment but also arguably on the entire La Junta Subdivision to address Intervenors claim that the roadbed and ballast section should have been constructed in a manner that prevented a lateral strike from a vehicle.

         BNSF is an interstate freight railroad and operates the mainline trackage on the La Junta Subdivision 24 hours per day, 365 days per year. Further, Amtrak operates trains on the tracks daily and 365 days per year.

         This mainline track is the sole Amtrak route through the State of Kansas. Amtrak operates two passenger trains per day over this area and, BNSF operates, on average, two to five trains per day. Changing the track structure, road bed and surrounding embankment topography to meet the various claims of the Intervenor's proposed experts would include but not be limited to the following:

a. Extensive studies, permitting and redesign work that would include land surface/subsurface, topography, signals, signal circuits, fiberoptic cables, traffic engineering, crossing/rail switches, movement of public utilities and other access rights operated on easements on the railroad right-of-way and coordination with the Kansas Department of Transportation for implications and impact on the adjacent highway right-of-way.
b. Environmental impact studies would also have to be performed, which are costly and time consuming.
c. If the above studies confirmed that reconstruction of the track structure, road bed and surrounding embankment topography was feasible, possible and safe, the project would include extensive construction work that would include not only the railroad tracks at the location of the derailment but also arguably the entire La Junta Subdivision.
d. Even if the work was confined to the 5 miles in either direction from the location of the derailment, the work would require a lengthy period of closure of the BNSF mainline track and disruption and transfer of traffic of not only BNSF freight trains but disruption and transfer of traffic for Amtrak trains.
e. The project would require coordination with the Kansas Department of Transportation to involve study of the impact on the adjacent highway and possibly highway closures to accommodate the work. BNSF does not have authority to close highways or alter the adjacent roadway right-of-way without consultation with the Kansas Department of Transportation.
f. Closure of this stretch of track and disruption and transfer of train traffic would significantly impact the operations of BNSF and Amtrak along the entire stretch of the La Junta Subdivision and area beyond. Passenger traffic would have to be re-routed, shipments of BNSF freight would have to be re-routed, and trains would have to be rescheduled.
g. Delays in passenger and freight service would also disrupt the daily lives of many shippers and consumers who depend upon the timely rail service and it would impact the schedules of passengers on Amtrak trains. In addition to delays, safety issues could arise in light of the rescheduling and re-routing.

         Smply put, such work would be an enormous, burdensome and expensive undertaking. It would shut down freight and passenger rail transportation on the railroad line at issue for a considerable amount of time, resulting in train delay losses and other logistical issues for both the railroad industry, its customers, and possibly the users of the adjacent highway and roads impacted.

         Turning next to the locomotive engineer, the FRA has enacted regulations governing the selection, training and qualification of such engineers; a railroad's documentation of its programs for training, qualifying, and certifying locomotive engineers; and FRA approval of such programs. These regulations require that railroads adopt policies and procedures for the training, testing and evaluation of persons seeking certification or re-certification as locomotive engineers.

         Under 49 C.F.R. § 240.103, Amtrak must submit to the FRA Amtrak's written program for the certification and recertification of locomotive engineers, and a description of how the program conforms to the specific requirements of Part 240. Amtrak's program for the certification and recertification of locomotive engineers is considered approved by the FRA, unless the FRA notifies the railroad in writing that the program does not conform to the criteria set forth in 49 C.F.R. Part 240.

         Amtrak has developed a program for determining the qualifications of each person that it permits or requires to operate a locomotive. Amtrak's locomotive engineer's certification program, which included a detailed program developed by Amtrak for the training, testing and evaluation of locomotive engineers, was submitted to the Federal Railroad Administration on or about June 17, 2015.

         The program requires annual monitoring and testing of the operational performance of Amtrak's locomotive engineers. Each calendar year, each engineer also receives at least one unannounced efficiency test. Amtrak's engineer certification and training program was organized according to, and contained all the information required by, appendix B to 49 CFR part 240.

         The FRA did not notify Amtrak that its program did not conform with any of the criteria set forth in 49 C.F.R. Part 240. Accordingly, the program is deemed approved by the FRA pursuant to 49 C.F.R. §240.103(c). Although the FRA does have the authority and discretion to notify a railroad when it determines there are problems with the railroad's training program, the FRA did not take any exception to Amtrak's submission.

         Federal regulations enacted by the FRA also set forth requirements for the implementation, enforcement, and instruction/training of Amtrak's operating rules and practices. In accordance with 49 C.F.R. Parts 217 and Part 218, Amtrak maintained operating rules and implemented programs to ensure that its employees were instructed and tested periodically on the operating rules. Amtrak's program included training, instruction, operational testing and inspections to ensure compliance with its code of operating rules.

         As required by the FRA, Amtrak keeps records of its instruction and testing of its engineers and conductors on the railroad's operating rules. As of the date of the accident, the Amtrak crew (Engineer Jennifer Montanez, Student Engineer Zachariah Blea, Conductor Wilbert Benoit, and Assistant Conductor Nicholas Stoval) had successfully completed all instruction and training required by Amtrak's training program.

         The monitoring, testing, physical examinations, supervision, and recertifications that Montanez received during her employment as a locomotive engineer at Amtrak were in compliance with Amtrak's policy and program, which contained the criteria set forth in 49 C.F.R. Part 240 and was approved by the FRA. As of March 14, 2016, Montanez was recertified as a locomotive engineer, and was fully qualified to be a locomotive engineer. She had received all of the continuing or recurring training for recertification required by Amtrak's program and policy. This included classroom training and testing, on the job training, performance testing, and regular field efficiency tests by supervisors to monitor her for ongoing rules compliance while she was actually operating a train.

         Since becoming certified as a locomotive engineer, Montanez received ongoing locomotive engineer training, evaluation, monitoring, testing, and supervision. During her employment with Amtrak, after initially becoming certified as a locomotive engineer, Ms. Montanez has been continuously recertified without interruption in accordance with the requirements set forth in 49 C.F.R. Part 240. Thus, Montanez was an FRA-certified engineer on March 14, 2016. Throughout her employment with Amtrak as a locomotive engineer, Montanez received the requisite training and instruction regarding Amtrak's operating rules, practices, and policies that is required pursuant to Part 217 and Part 218.

         As part of its investigation, the NTSB reviewed the operational testing and training of the Amtrak train crew. The NTSB noted: “Operational testing - Title 49 CFR 217.9 contains specific requirements for the testing and observations of operating employees while they perform their duties. Amtrak maintains an operational testing program to monitor the performance and rules compliance of operating employees.” The NTSB also set out the specific testing and training information concerning all of the Amtrak crew members, including their hire date, medical, hearing and vision exams, certification dates, certification expiration, skills performance rides, efficiency testing and knowledge testing. The NTSB noted no exceptions to the testing and training of the Amtrak train crew members or to Amtrak's operational testing and training program.

         As part of its investigation of the derailment, the FRA also, along with the NTSB, reviewed the operational testing and training of the Amtrak train crew. The FRA indicated that all four employees had completed required safety and operating courses with passing scores and that the Amtrak engineer was current with the requirement of Title 49 CFR Part 240 - Engineer Certification. The FRA also concluded that the crew members had received regular training, rules examinations and various safety training, including emergency preparedness.

         With respect to the last suggestion, the Intervenors' expert, Colon Fulk, believes that if the Amtrak engineer had simply “ridden out” the defect and applied no braking at all, the train would have simply continued uneventfully on to Dodge City without derailing. Additionally, Fulk and Intervenor expert James Loumiet have stated that, assuming the train crew saw the misalignment at 800 feet or more away and applied the emergency brakes, they could have avoided the derailment or lessened its effects. However, as discussed more fully in the section of this opinion devoted to Intervenors' experts, Fulk's opinion as to this theory of “riding out” the misalignment is not reliable and is excluded from the action.

         On the two occasions that Mr. Fulk experienced a track misalignment while operating a locomotive, he did not see the misalignments until his locomotive was less than 400 feet away from the misalignment on the first occasion, and two seconds, or less than 200 feet away, on the second occasion, even though both incidents occurred during daylight hours in clear weather.

         One incident involved a sun kink he encountered during the daylight hours; the train did not derail; he did not apply emergency braking and he only saw the kink a couple of seconds before he hit it. The other kink incident Fulk was involved in occurred in Efland, North Carolina in the early '80s involving a freight train going 45 miles per hour. This also involved a kink that he encountered in daylight hours and only saw for 3 or 4 seconds before hitting it. This second train did not derail and he never applied emergency braking.

         Fulk has never experienced a situation where trains derailed after the application of emergency brakes. Other than this case, Mr. Fulk has never investigated an accident where a train derailed after application of emergency brakes.

         Fulk acknowledges that Montanez's application of emergency braking was not addressed by the Amtrak Air Brake and Train Handling Rules, and he cannot cite any rule by an American railroad recommending his theory of “riding out” such misalignments. He has not recommended this theory to any railroad company, and is not aware of any analysis ever done of when a train's emergency brakes should or should not be applied when a track misalignment is encountered. He has not analyzed the frequency with which derailments have occurred due to track misalignments even though that information is available through an FRA website.

         Fulk is not aware of any other derailment that was caused by a track misalignment, or a track misalignment and emergency braking. He has not seen any statistics suggesting a correlation between derailments involving track misalignments where there was or was not an emergency brake application.

         Neither the NTSB nor the FRA has published any safety advisory addressing an increased risk of derailment from a track misalignment if emergency braking is applied or governing the use of any braking technique on a misalignment.

         Fulk believes that compressive “buff” forces of the train as it crossed the misalignment caused the derailment. However, he has not analyzed the “buff” or “draft” (decompressive slack) forces that the Amtrak train would have experienced during this derailment event, even though the forces can be calculated through computer simulations that he has utilized in the past and agrees other experts in the industry utilize to analyze events. He does not know how much buff and draft force would be necessary to cause a derailment of a train given the dimensions of the misalignment that existed in this case.

         Fulk does not know how slow the train would have had to be going when it crossed the misalignment for the derailment to not have occurred. He has no training in physics or human factors, and does not know what distance from the misalignment the Amtrak locomotive engineer could have applied the emergency brake without risk of derailment.

         Fulk did not analyze how long it would take the buff forces of the Amtrak train to dissipate once the brakes were applied.

         Loumiet's report does not contain any analysis of the contribution of emergency braking to cause the derailment, and he did not perform any analysis of what amount of longitudinal force was needed to cause a derailment in the situation that the Amtrak train encountered or whether any such forces were actually present. He has acknowledged he was unable to determine whether the derailment would have happened even in the absence of train braking. He has agreed there are three potential mechanisms of derailment-wheel climb, broken rail, and wide gage-but does not identify which mechanism was at play with the subject derailment.

         As noted, the Amtrak locomotive engineer at the time of the accident was Jennifer Montanez. She testified that while operating as an engineer, she is watching her speed, watching her throttle, watching crossings and looking out for cars and people. She is looking for the lights and bells on the gates, signals, signal plates, bridges and generally looking out her window for anything and everything.

         Montanez testified she put the train in emergency as soon as she saw the misalignment, and she only saw the defect right before she placed the train into emergency.

         At the time of the underlying derailment, Zach Blea was a locomotive engineer trainee and was in the cab of the locomotive with engineer Montanez. Blea remembers looking out the window, seeing the defect in the rail, and bracing for impact. He also recalled seeing the defect about two seconds before the Amtrak train went over it.

         As part of its investigation of the derailment, the NTSB, using an exemplar locomotive, performed a visibility study at night and concluded that an object placed near the track was visible to the train crew only 381 and 403 feet away, even though the crew was traveling at only 25 m.p.h. and was told in advance to anticipate the object near the track.

         Video from the locomotive involved in the derailment shows that misalignment appears out of the darkness for approximately two seconds before the lead locomotive passes over it, consistent with the NTSB's assessment in its Event and On-Board Image Recorders Group Chairman's Factual Report.

         Intervenors attempt to discount the results of this investigation by stressing various aspects of the test, such as the fact that it “did not involve seeing the defect itself, but an object placed in the location of the defect.” (Dkt. 413-1, ¶ 197). But all of the distinctions between the test and the accident itself (the engineer was warned to look for something unusual, the object used was a lantern, and the train was travelling at 25 m.p.h. rather than 60 m.p.h.) all tend to strongly exaggerate the distance, and hence the warning time to Amtrak's engineer.

         Intervenors' expert Loumiet has hypothesized what would have happened if the crew would have applied the brakes after seeing the misalignment at 800 or 1, 000 feet away, but acknowledges he has no opinion that the crew actually had the ability to see the misalignment at such distances on the date in question. Fulk has opined that, by the time the crew was able to see the misalignment, braking was no longer the proper response. He also testified that in his opinion, the crew should not have placed the train into emergency if they first saw the misalignment at 400 feet and at 500 feet, stating “it's iffy.” Findings of Fact - Headlight Claims The lead locomotive of the Amtrak train involved in the accident (AMTK153) was a GE model P42DC locomotive, equipped with a dual-lamp headlight. In its dual-lamp headlights, Amtrak sources and installs only General Electric PAR-56 200-watt 30V bulbs. On the date of the derailment, the lead locomotive of AMT153 was equipped with two of these bulbs in its headlight assembly.

         To give its inspectors guidance on how to inspect headlights to determine compliance with 49 CFR 229.125, the FRA publishes a “Motive Power and Equipment Compliance Manual.” The manual provides that if a locomotive has a light arrangement with two sealed beam headlights the inspector must ascertain whether they are 200-watt, 30-volt lamps.

         On March 14, 2016, the date of the derailment, the FRA conducted an inspection of AMTK 153 and did not note any exception with the locomotive headlights.

         Two days before the accident, on March 12, 2016, maintenance personnel in Los Angeles performed a “15-day Inspection” of AMKT153. This inspection, which included inspection and testing of locomotive headlights and auxiliary lights, noted no issues.

         Jennifer Montanez. the train's engineer, went on duty and boarded the train in La Junta, Colorado, on the evening of March 13, 2016. It is uncontroverted that Montanez inspected the lead locomotive before leaving the station, and verified that the locomotive's headlights and auxiliary (or “ditch”) lights were working.

         As the train approached the point of derailment, the locomotive headlight was on and the switch was set to “bright.” After the derailment and after the train stopped, Montanez remained in the locomotive for an extended period of time as railroad personnel, emergency responders and law enforcement reported to the scene. Because these workers were outside the train, including some standing in front of the locomotive, Montanez changed the locomotive headlight switch from “bright” to “dim.” On March 16, 2016, members of the NTSB mechanical group investigating the derailment performed a pre-departure inspection of the Amtrak train involved in the derailment, including AMTK153, and no exception with the function of the locomotive headlights were noted. The mechanical group reviewed locomotive daily inspection records and took no exceptions to the documentation received or to the maintenance history of the equipment.

         An on-board camera recorded video of the train's approach to the derailment location. The relevant portion of the video begins thirty seconds before the derailment and continues through the time the train came to a complete stop after the derailment.

         In the video, signs adjacent to the tracks appear, reflecting the light they receive from the locomotive's headlights.[6] Examination of the video confirms that the headlight was illuminating vertical objects more than 800 feet ahead of the locomotive. These objects include a sign about ten feet to the right of the track centerline (at about 1, 000 feet ahead), a whistle post next to the track anomaly and about six to seven feet to the right side of the tracks (at the same distance), and a mile marker next to the to the track on its left side (at about 1, 500 feet).

         It is uncontroverted that an object traveling at 1 m.p.h. travels 1.4667 feet per second.

         Intervenors' expert Colon Fulk stated, “It is my opinion … that the train crew should have been able to see the misalignment or kink for at least 800 feet in advance of the misalignment.” Findings of Fact - Joint Venture In the Pretrial Order, Cimarron alleges:

Amtrak and BNSF operated the subject railroad operation as a joint venture. As such, for comparative fault purposes, Amtrak and BNSF should be considered a single entity, and the sum of any comparative fault for this incident by Amtrak should be combined with that BNSF so that if the total of Amtrak and BNSF's fault exceeds forty-nine percent bars, they are barred from recovery against Defendant Cimarron.

(Dkt. 461, at 23).

         Amtrak and BNSF are distinct corporations. Amtrak provides passenger rail service by using track owned by other railroads, including BNSF. BNSF owns railroad tracks in a number of states, including the State of Kansas.

         Amtrak, not BNSF, owned and operated the train involved in the derailment. BNSF, not Amtrak, owned and maintained the tracks where the derailment occurred.

         While Amtrak compensates privately-owned railroads for the incremental cost of Amtrak operations on their tracks, the private railroads are solely responsible for the inspection and maintenance of the railroad roadbed and tracks and for coordinating the flow of traffic over their railroad tracks.

         While BNSF provides dispatching services for Amtrak trains using its tracks, it does not operate those trains, provide train crews, or supervise Amtrak's crews. BNSF was responsible for inspection, repair and maintenance of the tracks over which the Amtrak train derailed March 14, 2016.

         Amtrak did not perform or direct the inspection, repair and maintenance of BNSF's tracks. All the personnel of BNSF performing such track work are subject to the exclusive direction and supervision of BNSF. BNSF did not supervise of the the Amtrak train crew.

         Amtrak does not share with BNSF ownership of the tracks over which the train was running, and Amtrak has no role in fixing of any BNSF salaries and BNSF has no role in fixing of any Amtrak salaries. BNSF does not share in or have any voice in determining the division of Amtrak's net earnings, profits or losses.

         While the agreement between Amtrak and BNSF provided for Amtrak's use of BNSF's rail line, neither party intended this as an agreement to share profits and losses with the other company, or for the profits and losses of either BNSF or Amtrak, or as an agreement to jointly own any passenger trains or rail lines.

         Motions to Strike

         Following the Intervenors' Responses (Dkt. 411, 412) to their summary judgment motions, the railroad plaintiffs moved to strike certain portions of these pleadings which were premised on new opinions offered by expert witnesses retained by the Intervenors. The plaintiffs condemn the opinions as last-minute attempts to salvage the passengers' claims, and argue the opinions should be excluded because (1) they are new or novel opinions not previously revealed in the experts' reports or depositions, and thus barred by Fed.R.Civ.Pr. 26(e) and 37; (2) they are unreliable conclusions outside the expertise of the witness, and thus barred by Fed.R.Evid. 702; (3) or both.

         In addition, following the entry of the Pretrial Order (Dkt. 461) which added new claims for the allegedly defective locomotive headlight, Amtrak moved for summary judgment on these claims and, after Cimarron and the Intervenors opposed this motion, filed a reply coupled with separate motions to strike portions of the expert statements cited in the responses.

         Under Rule 26(e), a party may submit a supplemental or rebuttal expert report if the expert has been presented with new information, but the rule precludes such reports submitted in the absence of such information. Spirit Aerosystems, Inc. v. SPS Technologies, LLC, No. 9-CV-114-EFM-KGG, 2013 WL 6196314, *6 (D.Kan. Nov. 27, 2013). Thus, “a supplemental expert report that states additional opinions or rationales or seeks to ‘strengthen' or ‘deepen' opinions expressed in the original expert report exceeds the bounds of permissible supplementation and is subject to exclusion under Rule 37(c).” Paliwoda v. Showman, No. 12-2740-KGS, 2014 WL 3925508 at *3 (quoting In re Cessna 208 Series Aircraft Prods. Liab. Litig., No. 05-md-1721, 2008 WL 4937651, at *2 (D.Kan. Nov. 17, 2008)) (emphasis added). The undersigned has adopted rules which specifically provide that “absent strict compliance with Rule 26(a)(2), the witness's testimony will be excluded pursuant to Rule 26(e)(1).” Guidelines for Parties and Counsel on Pretrial and Trial Matters, Revised Aug. 2011 (J. Thomas Marten, United States District Judge).

         Expert opinions must not only be disclosed through Rule 26(a)(2), they must also be reliable. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592 (1993) (expert testimony must have “a reliable basis in the knowledge and experience of [the relevant] discipline”); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999). An expert's opinion may be admitted under Rule 702 if is helpful to the jury, which requires the court to determine if there is “a valid scientific connection to the pertinent inquiry.” Daubert, 509 U.S. at 592. “Although many factors may bear on whether expert testimony is based on sound methods and principles, the Daubert Court offered five non-exclusive considerations: whether the theory or technique has (1) been or can be tested, (2) been peer-reviewed, (3) a known or potential error rate, (4) standards controlling the technique's operation, and (5) been generally accepted by the scientific community.” Etherton v. Owners Ins. Co., 829 F.3d 1209, 1217 (10th Cir. 2016) (citing 509 U.S. 593-94). As explained below, the court finds that in most respects the expert opinions cited in the Intervenors' Responses are either novel and undisclosed opinions not in compliance with Rule 26, or opinions which have not been demonstrated to be reliable under Rule 702, and accordingly grants the plaintiffs' motions. (Dkt. 432, 436, 438).

         Fulk

         Colon Fulk worked for Amtrak as a locomotive engineer for 11 years. Before that, he worked in the operating department of Norfolk Southern Railway for 22 years, serving as brakeman, conductor, fireman, road foreman, and locomotive engineer. Fulk provided his report in the present action on April 2, 2018.

         Fulk currently works for a company called Railex. He is Railex's only employee, and 90-95% of his work involves consulting and providing testimony for parties to actual or potential litigation. All of this work is performed on behalf of persons who are adverse to railroads.

         In his recent affidavit, Fulk states the derailment occurred, or was made worse, because (1) the train's headlight was improperly set to dim rather than bright, (2) the crew failed to see the misalignment at 800 feet away or more and then used emergency breking, and (3) the engineer failed to “rid[e] out” the misalignment and avoid emergency braking.

         Fulk has not identified any railroad rules or recommendations from the FRA or NTSB suggesting that locomotive engineers not apply emergency brakes when encountering a kink or misalignment of track.

         Fulk himself has only encountered kinked or misaligned track twice. Both incidents occurred in daylight and clear weather. In both incidents, Fulk did not see the misalignments until his locomotive was less than 400 feet away, and in one, less than 200 feet away from the misalignment. Once incident occurred in the early 1980s when Fulk was operating a freight train at 45 miles per hour. He saw the misalignment three to four seconds before hitting it. In the other incident, Fulk saw the misalignment only a couple of seconds before he hit it. In both incidents, Fulk did not apply emergency braking and the train did not derail. In his deposition Fulk acknowledged he does not now know how big either misalignment was.

         Fulk has never experienced a situation where trains derailed after the application of emergency brakes. Other than this case, Fulk has never investigated an accident where a train derailed after application of emergency brakes.

         Fulk is not aware of any analysis ever done regarding when a train's emergency brakes should or should not be applied when a track misalignment is encountered. He did not analyze the frequency with which derailments have occurred due to track misalignments even though that information is available through an FRA website. He is not aware of any other derailment that was caused by a track misalignment, or a track misalignment and emergency braking. He has not seen any statistics suggesting a correlation between derailments involving track misalignments where there was or was not an emergency brake application.

         The FRA website identifies three Amtrak derailments that resulted from track kinks between 1994 and 2005. Fulk is unaware if any of these incidents that involved the application of emergency brakes.

         Fulk has not seen anything from the FRA or NTSB suggesting that applying emergency braking on a track kink increases the likelihood of a derailment. He has likewise seen no reports or data ...


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