United States District Court, D. Nebraska
DANA L. SIEMERS, Plaintiff,
BNSF RAILWAY COMPANY, a Delaware corporation, Defendants.
MEMORANDUM AND ORDER
M. Gerrard Chief United States District Judge.
plaintiff, Dana Siemers, is suing his former employer, BNSF
Railway, for alleged violations of the Federal Employers
Liability Act ("FELA"), 45 U.S.C. § 51 et
seq. This matter is before the Court on the
defendant's motion to exclude the testimony of John David
Engle, Jr. (filing 74). For the reasons discussed below, that
motion will be denied.
was employed at BNSF Railway as a Carman employee. Filing 1
at 2. In that position, Siemers manually tightened and set
handbrakes on BNSF's railcars. Filing 1 at 2-3. In the
course and scope of his employment, Siemers sustained a
serious injury to his back. Filing 1 at 2-3. That injury,
Siemers alleges, is the result of BNSF's failure to
provide its employees with a reasonably safe working
environment, reasonably safe tools and equipment, adequate
training, and adequate supervision. See generally
filing 1 at 3-4.
the course of this litigation, Siemers retained the expert
opinion of John David Engle Jr. See generally filing
74-5 at 11. Engle is an expert in railway braking systems,
including the proper inspection, maintenance, and testing
procedures for those systems. After reviewing the evidence,
Engle opined that Siemers' training by BNSF was
"inconsistent [and] non-standardized." See
filing 74-5 at 10. Specifically, Engle concluded that
employees at BNSF received inadequate training on how to
properly operate a vertical hand brake and determined that,
in many instances, the BNSF employee training diverged from
the procedures outlined in BNSF's safety rules.
See filing 74-5 at 11-12. BNSF seeks to exclude this
testimony. Filing 74.
speaking, BNSF argues that Engle's opinion must be
precluded pursuant to Fed.R.Evid. 702 and Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) because
his opinion is unreliable and speculative. Filing 74 at 6-7.
The objective of the Daubert inquiry is to make
certain that an expert, whether basing testimony upon
professional studies or personal experience, employs in the
courtroom the same level of intellectual rigor that
characterizes the practice of an expert in the relevant
field. Am. Auto. Ins. Co. v. Omega Flex, Inc., 783
F.3d 720, 722 (8th Cir. 2015). And in order to be admissible,
expert testimony must be both relevant to a material issue
and reliable. Id. at 591; see also
Margolies v. McCleary, Inc., 447 F.3d 1115, 1120
(8th Cir. 2006); see Fed. R. Evid. 702.
established a non-exclusive checklist for trial courts to use
in assessing the reliability of expert testimony, including
whether the theory or technique can and has been tested,
whether it has been subjected to peer review, whether there
is a high known or potential rate of error, and whether the
theory or technique enjoys general acceptance within a
relevant scientific community. See U.S. v. Holmes,
751 F.3d 846, 850 (8th Cir. 2014) (citing Daubert,
509 U.S. at 592-94). And for the purposes of evaluating the
relevance of expert testimony, the Court must determine
whether the expert's reasoning or methodology was applied
properly to the facts at issue. Daubert, 509 U.S. at
580. To that end, expert testimony that is speculative,
unsupported by sufficient facts, or contrary to the facts of
the case, is inadmissible. Marmo v. Tyson Fresh Meats,
Inc., 457 F.3d 748, 757 (8th Cir. 2006).
BNSF has provided the Court with no argument, much less
evidence, to suggest that Engle's methodology is
unreliable. Rather, BNSF's motion asks this Court to
exclude Engle's testimony because, as BNSF claims, his
opinion is based on inaccurate or self-serving facts. See
generally filing 74 at 7, 12-13. To that end, BNSF also
points out that Engle's testimony has been excluded on at
least two other occasions--and as such, contends that his
opinion is inherently unreliable. See Gilreath v. CSX
Transp., Inc., No. 6:16-CV-96, 2018 WL 1003884, at *2
(E.D. Ky. Feb. 21, 2018); Shepherd v. Ar. & Mo.
R.R., No. 10-5058 (W.D. Ark. May 20, 2011), see
begin, the Court is not persuaded by BNSF's argument that
because Engle's testimony has been excluded before, his
testimony must also be excluded here. After all, there is
nothing to suggest that when a Court determines that an
expert is not qualified to opine on some topics in a
particular case, that the expert's opinion is inherently
unreliable on every occasion. Filing 74 at 5-6. And
here, Engle's purported testimony is factually
distinguishable from the instances where his testimony was
example, in Gilreath, the touchstone of Engle's
opinion was that the hand brake was defective. 2018 WL
1003884, at *2. That conclusion was based solely on the
plaintiff's description of the hand brake--not
Engle's own examination of the product. Id. And
without actually inspecting the purportedly defective hand
break, the Court determined that Engle's opinion was
speculative. Id. But here, Engle does not opine that
the hand brake itself is defective; rather, in Engle's
opinion, BNSF's training methods are not
reasonably safe. See filing 74-5 at 11-14. And
reaching that conclusion does not, as BNSF seems to suggest,
require Engle's physical examination of the hand brake
used by Siemers. Filing 74 at 5-6.
in Shepherd, Engle purported to opine on the safety
of the brake rigging on a railroad slug car. Filing 74-6 at
14. But again, Engle had not inspected the slug or reviewed
photographs of it. Filing 74-6 at 15. And more fundamentally,
Engle did not have any experience working on or with slugs.
Filing 74-6 at 13-15. So, the Court determined that Engle
could not render a reliable opinion. Filing 74-6 at 15. By
contrast, in this litigation, Engle--who has extensive
experience in the inspection, maintenance, and testing of
railway braking systems--did review the necessary
evidence to reach an informed conclusion. In particular,
Engle reviewed portions of Siemers' deposition discussing
how he was trained to tighten the hand brake. See
filing 74-5 at 4-5. And Engle relied on the testimony of
Daniel Silva, a former BNSF safety supervisor. See
filing 74-5 at 4-5. Engle also reviewed BNSF's training
handout, BNSF's Mechanical Safety Rules, various safety
write ups, and among other things, BNSF's response to
Siemers' first set of interrogatories. Filing 74-4 at
4-5. And since Engle's preliminary report, the
depositions of various other employees have been taken
collaborating Siemers' initial testimony upon which Engle
plans to rely on at trial. See filing 82-4; filing
82-4; see also filing 82 at 12-13. Thus, the Court
cannot say, that Engle's opinion should be excluded on
latter contention, that Engle's opinion relies solely on
Siemers' "unsubstantiated self-serving
statements" while ignoring other "all contrary
evidence," does not fare any better. Filing 74 at 7, 9.
The factual basis of an expert opinion goes to the
credibility of the testimony, not its admissibility.
Bonner v. ISP Tech., Inc., 259 F.3d 924, 929-30 (8th
Cir. 2001). Only when an expert's opinion "is so
fundamentally unsupported that it can offer no assistance to
the jury must such testimony be excluded." Id.
But here, there can be little doubt that the specialized
knowledge of an expert in railway braking safety would be
helpful to the jury in this case. See Id.
In fact, it is likely essential--the jury will be asked to
determine how, if at all, BNSF's training procedures
varied from those standard in the industry.
discussed above, the Court cannot say, at least at this
juncture, that the factual basis Engle relies on is
fundamentally unsupported by the evidence. Whether
Siemers' testimony is credible-and, therefore, whether an
opinion premised on his version of the facts is credible-is a
matter that the Court is confident BNSF's counsel can
adequately address through cross-examination. But the
gatekeeper function of Daubert is not ...