from the United States District Court for the Western
District of Oklahoma (D.C. No. 5:16-CV-00623-HE)
Patrick S. O'Brien, Law Office of Patrick S. O'Brien,
St. Louis, Missouri, for Plaintiff -Appellant.
D. Hart (Christopher D. Wolek and Michael Womack with him on
the brief), Mullican & Hart, P.C., Tulsa, Oklahoma, for
Defendant - Appellee.
MATHESON, PHILLIPS, and McHUGH, Circuit Judges.
MCHUGH, CIRCUIT JUDGE.
Schulenberg, a train engineer for BNSF Railway Company, was
injured when the train he was riding "bottomed
out." Mr. Schulenberg filed suit against BNSF, alleging
liability for negligence under the Federal Employers'
Liability Act (FELA), 45 U.S.C. §§ 51-60. BNSF
filed motions to exclude Mr. Schulenberg's expert witness
and for summary judgment, both of which the district court
granted. Mr. Schulenberg appeals those decisions. We conclude
the district court did not abuse its discretion in excluding
the expert witness because there was no discernable
methodology offered for his opinions. And we conclude the
district court was correct in granting summary judgment to
BNSF because Mr. Schulenberg failed to present a dispute of
material fact on his sole theory of liability on
appeal-negligence per se. Therefore, we affirm the
January 11, 2014, Mr. Schulenberg, along with Dewey
Sutterfield, the conductor, was riding a train from Oklahoma
City to Tulsa as part of his job as a locomotive engineer for
BNSF. At a crossing between mileposts 485.8 and 485.5, the
train hit rough track, causing the engine to "bounce
and bottom out" and "hammer."
Appellant's App. vol. I, at 172. The incident was so
severe, Mr. Schulenberg testified it caused Mr.
Sutterfield's water bottle to fly to the floor and almost
caused Mr. Sutterfield to bounce out of his chair. Mr.
Schulenberg grabbed onto the desk in front of him and braced
himself with his legs and then felt a pain go down the back
of his left leg and a cold sensation in his left thigh. Mr.
Schulenberg continues to suffer from those feelings in his
leg to this day.
deposition, Mr. Sutterfield testified that the incident was
the worst bottoming out he had experienced in his forty-seven
years riding trains for the railroad. Mr. Sutterfield's
statement after the incident reported the bouncing was so
severe that he was bounced out of his seat.
time of the incident, the relevant track segment was
classified as a Class 5 track under the Federal Railroad
Administration (FRA) standards, permitting a maximum speed of
eighty miles per hour. 49 C.F.R. § 213.9. However, BNSF
had set a general internal timetable speed limit of
fifty-five miles per hour for that segment. Additionally, on
the day of the incident, there was a slow order in effect for
that segment of track due to a report of "rough
surface," lowering the speed limit to forty miles per
hour. The train was traveling at thirty-eight miles per hour
when the bottoming out occurred.
the train arrived in Tulsa, Mr. Schulenberg completed a
personal injury report for the incident. In response to the
report, BNSF lowered the speed limit for that segment to
twenty-five miles per hour and sent Lawrence Wallace to
inspect the track. Mr. Wallace measured a deviation in the
rail and found a deviation of 1 5/8 inches in a 62-foot
chord. After Mr. Wallace's inspection, BNSF
raised the speed limit back to forty miles per hour.
Schulenberg filed three claims against BNSF: two claims
alleging liability under FELA and a third claim alleging
liability under the Locomotive Inspection Act. Mr.
Schulenberg ultimately abandoned one of his FELA claims and
his Locomotive Inspection Act claim, leaving only his
"single-event FELA negligence claim."
Appellant's App. vol. III, at 168.
filed a motion to exclude the testimony of Mr.
Schulenberg's expert witness, Alan Blackwell, and a
motion for summary judgment on the remaining FELA claim. The
district court granted the motion to exclude Mr.
Blackwell's expert opinions, concluding the opinions
lacked a reliable basis. Then, the district court granted
summary judgment to BNSF, concluding that Mr. Schulenberg
"ha[d] not submitted evidence sufficient to support an
inference of negligence in the maintenance or inspection of
the section of track at issue." Id. vol. III,
at 168-72. Mr. Schulenberg appealed. Exercising jurisdiction
pursuant to 28 U.S.C. § 1291, we conclude the district
court did not abuse its discretion in excluding Mr.
Blackwell's testimony or err in granting BNSF's
motion for summary judgment. We therefore affirm.
appeal, Mr. Schulenberg pursues only a theory of liability
based on negligence per se for violation of FRA
regulation 49 C.F.R. § 213.63. To put the exclusion of
the expert witness and summary judgment issues in context, we
begin with a brief discussion of liability under FELA and the
relevant FRA regulations. Next, we discuss whether the
district court abused its discretion in excluding Mr.
Blackwell's expert testimony. Finally, we review the
district court's decision to grant summary judgment.
Liability under FELA
Schulenberg's FELA claim alleges that BNSF is liable for
his injuries under 45 U.S.C. § 51. That section
Every common carrier by railroad . . . shall be liable in
damages to any person suffering injury while he is employed
by such carrier . . . for such injury or death resulting in
whole or in part from the negligence of any of the officers,
agents, or employees of such carrier, or by reason of any
defect or insufficiency, due to its negligence, in its . . .
track [or] roadbed . . . .
45 U.S.C. § 51. An employee can recover under FELA for
the railroad's violation of a safety statute or
regulation under the theory of negligence per se.
CSX Transp., Inc. v. McBride, 564 U.S. 685,
703 n.12 (2011); Straub v. BNSF Ry. Co., F.3d, 2018
WL 6273359, at *4 n.6 (10th Cir. 2018).
safety requirements are set out by "class" of
track. The maximum allowable operating speed is eighty miles
per hour for a Class 5 track, sixty miles per hour for a
Class 4 track, and forty miles per hour for a Class 3 track.
49 C.F.R. § 213.9(a). If a segment of a track does not
meet the necessary requirements for its intended class, it is
reclassified as the class for which it does meet all the
requirements. Id. § 213.9(b).
the safety requirements is the maximum deviation from uniform
profile of the rail at the mid-ordinate of a 62-foot chord.
Id. § 213.63. The maximum allowable deviation
is 11/4 inches for a Class 5 track, 2 inches for a Class 4
track, and 2 1/4 inches for a Class 3 track. Id.
Importantly, when unloaded track is measured to determine
compliance with these requirements, "the amount of rail
movement, if any, that occurs while the track is loaded must
be added to the measurements of the unloaded track."
Id. § 213.13.
Schulenberg alleges negligence per se based on a
violation of § 213.63. Specifically, he argues Mr.
Wallace's measurement of a 1 5/8 inch deviation in a
62-foot chord did not account for deflection under load, as
required by § 213.13. And he contends the additional
deflection under load, when added to the 1 5/8 inch static
measurement, would exceed the 2 1/4 inch deviation permitted
by § 213.63.
Exclusion of Expert Witness
Schulenberg submitted an expert report in support of his
claim that BNSF violated § 213.63. The district court
ultimately excluded the report and the expert's
testimony. Mr. Schulenberg challenges that decision on
Standard of Review
Rule of Evidence 702 "imposes on a district court a
gatekeeper obligation to 'ensure that any and all
scientific testimony or evidence admitted is not only
relevant, but reliable.'" Dodge v. Cotter
Corp., 328 F.3d 1212, 1221 (10th Cir. 2003) (quoting
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579,
589 (1993)). The district court has discretion in how it
conducts its Daubert analysis, but enjoys no
discretion in whether it performs such an analysis.
"Accordingly, we review de novo the issue of whether the
district court actually performed its gatekeeper role in the
first instance." Adamscheck v. Am. Family
Mut. Ins. Co., 818 F.3d 576, 586 (10th Cir. 2016)
(internal quotation marks omitted)). But, where "the
district court fulfilled its gatekeeping responsibility, [w]e
then review the trial court's actual application of the
standard in deciding whether to admit or exclude an
expert's testimony for abuse of discretion."
Id. (alteration in original) (internal quotation
marks omitted); see also Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 152 (1999).
there is no dispute regarding the district court's
performance of its gatekeeping function. Accordingly,
"[t]he district court has 'wide latitude' in
deciding whether to exclude expert testimony . . . ."
Hall v. Conoco Inc., 886 F.3d 1308, 1311 (10th Cir.
2018) (internal quotation marks omitted). In this regard, the
district court abuses its discretion only if the decision
"is arbitrary, capricious, whimsical or manifestly
unreasonable, or when we are convinced that the district
court made a clear error of judgment or exceeded the bounds
of permissible choice in the circumstances." United
States v. Chapman, 839 F.3d 1232, 1237 (10th Cir. 2016)
(quotation marks omitted).