United States District Court, D. Kansas
National Railroad Passenger Corp. and BNSF Railway company, Plaintiff, and Everett Owen, et al., Intervenors
Cimarron Crossing Feeders, Defendants. Michael Lee Rounds, Plaintiff,
National Railroad Passenger Corp., doing business as Amtrak, et al., Defendants.
MEMORANDUM AND ORDER
Thomas Marten, Judge
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.
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.
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'
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
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).
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).
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).
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.
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
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.
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.
went to get his personal truck, losing sight of the run-away
feed truck in the process.
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
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.
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.
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.
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.
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
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.
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
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.
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.
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.
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
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
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.
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.
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.
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
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
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
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
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
g. the Amtrak passenger cars involved in the derailment.
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.
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.
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.
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
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
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.
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.
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).
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.
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.
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.
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.
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
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.
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).
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.
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.
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.
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.
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.
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. 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.
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.
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.
assert that BNSF violated 49 C.F.R. 213.1. 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.
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.
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.
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.
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.
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.
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.
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
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
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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
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
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.
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.
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 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.
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.
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.
did not analyze how long it would take the buff forces of the
Amtrak train to dissipate once the brakes were applied.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
video, signs adjacent to the tracks appear, reflecting the
light they receive from the locomotive's
headlights. 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).
uncontroverted that an object traveling at 1 m.p.h. travels
1.4667 feet per second.
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).
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.
not BNSF, owned and operated the train involved in the
derailment. BNSF, not Amtrak, owned and maintained the tracks
where the derailment occurred.
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.
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.
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.
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.
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.
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.
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
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
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,
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,
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.
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
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.
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
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.
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.
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
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 ...