Wilks v. BNSF Railway Company

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF OKLAHOMA

SAMANTHA WILKS, )

)

Plaintiff, )

)

v. ) Case No. CIV-18-080-KEW

)

BNSF RAILWAY COMPANY, )

a corporation, )

)

Defendant. )

O R D E R

This matter comes before the Court on the following Motions:

 Defendant’s Daubert Motion Regarding David Anthony

Rangel (Docket Entry #157);

 Defendant’s Fourteenth Motion in Limine Regarding

David Rangel’s Opinions on the Cotter Key and Its Removal

(Docket Entry #155); and

 Defendant’s Fifteenth Motion in Limine [Regarding

Whether] RFE Beals Intentionally or “Maliciously”

”Tricked” Plaintiff into Violating Federal Law by

“Hiding” Vital Information or That RFE Beals is Culpable

for Plaintiff’s Injuries (Docket Entry #156).

On August 10, 2020, this Court conducted a hearing to receive

the testimony of Mr. Rangel. Counsel for the parties was present

and inquired of the witness.

This case is brought under the Federal Employers’ Liability

Act (“FELA”) and the Federal Safety Appliance Act (“FSAA”) after

Plaintiff allegedly suffered an injury while assisting in the

replacement of a broken knuckle on a locomotive operated by

Defendant. Specifically, as a part of replacing the knuckle, it

was necessary to remove a cotter key to allow the removal of the

knuckle. The method and tools necessary for the safe removal of

the cotter key stands as one of the disputed issues in this case.

David Anthony Rangel was secured by Plaintiff as an expert witness

on these issues. Defendant challenges both the qualifications of

Mr. Rangel to render an opinion on the issues identified in his

expert report and his methodology in reaching the conclusions

contained in his opinions.

Mr. Rangel testified that he has never been employed by a

railroad and that his experience in the railroad industry began in

1994 when he first owned the MODOC Railroad. Prior to this

ownership, Mr. Rangel did voice over work in the movie and film

industry for 15 years in California. He possesses no college

degree. His expertise in entirely based upon his experience with

this railroad and the MODOC Railroad Academy which he started at

the suggestion of a “college buddy” who worked for BNSF to train

others on railroad operations.

According to Mr. Rangel, the MODOC Railroad ceased operations

in January of 2020. When it existed, this railroad consisted of

the leasing of three miles of track. It had no mechanical

department. Mr. Rangel testified that he has not be trained as a

certified machinist or carman or in locomotive maintenance. He

received in class training from BNSF to be a conductor and is

trained and certified as an engineer.

To arrive at his opinions, Mr. Rangel testified that he sent

12 e-mails to BNSF employees to ascertain whether they had received

training in the removal of cotter keys on knuckles. According to

his expert report, his e-mails posed two questions: (1) “[d]oes

BNSF provide you training on removing safety cotter keys from

coupler pins” and (2) “did you know that locomotives had safety

cotter keys on the coupler pins?” He stated that he received

nine responses. His expert report states that eight of the persons

surveyed stated “no” to both questions and one that he designated

as a “Rapid Responder” for the railroad stated “yes” to both

questions.

Mr. Rangel testified that he does not remember the names of

the employees and is not in possession of the nine responses that

he allegedly received in response to his e-mail inquiries. He

also stated that he “cannot access” the e-mails that he sent. He

remembered that some of the parties he contacted were employed in

the Illinois, Arizona, and Texas regions but he cannot remember

where the rest worked. Mr. Rangel stated that he chose to contact

the 12 BNSF employees that he chose to contact because they were

all he could remember as people that he trained in his MODOC

Academy and later were employed by BNSF. To be clear, Mr. Rangel

confirmed that BNSF never sent employees to him to be trained. He

stated that he never requested names of BNSF employees who were

trained in Tulsa and he did not know the positions that the 12

persons he contacted currently occupied. Mr. Rangel stated that

he did not follow up with the e-mail respondents to determine their

methodology in the removal of a cotter key.

Mr. Rangel also testified that he contacted CSX Railroad

employees. His expert report, however, does not reference that

his opinions were based upon any such contacts.

Mr. Rangel testified on re-direct examination that he never

removed a cotter key from an F-style knuckle such as is at issue

in this case. In fact, he confirmed that he did not know F-style

knuckles had cotter keys until 2008 when he purchased a locomotive.

As a result, prior to 2008, Mr. Rangel did not train in the removal

of cotter keys from F-style knuckles at his MODOC Academy. In his

deposition, Mr. Rangel testified that he did not know if the only

way to remove a cotter key safely was with a blow torch or a key

knocker device. He changed his mind in his testimony at the

hearing and stated that he now believes that using a hammer and

chisel for the removal of the cotter key is unsafe. He also

testified that the first time he had used a key knocker device to

remove a cotter key was eight months ago.

In his expert report, Mr. Rangel concluded, in pertinent part,

that:

 The accident allegedly resulting in injury to Plaintiff

was preventable because “[t]here was absolutely no

reason for either crew member to attempt to remove the

safety cotter key on the broken coupler”, Plaintiff and

the conductor did not have a key knocker tool or blow

torch to remove the cotter key, and “[n]either crew

member had any advance training or warning from railroad

officers that the crew’s attempts to remove the safety

cotter key (sic).”

 Plaintiff and the conductor were “tricked into unknowly

(sic) violating federal law in CFR 49 §

240.305(a)(5)(6)” and he “demonstrated malicious

personal and company intent to jeopardize the crew’s

safety and continued employment by hiding vital

information from [Plaintiff] and the conductor”; namely,

that they could not safely remove the cotter key from

the knuckle pin with the tools they had on hand.

 BNSF’s “Mechanical Help Desk” should have known that

specialized tools were required to remove the cotter key

and the crew of the locomotive did not have those tools.

 BNSF failed to provide adequate training on the safe

removal of the cotter key (utilizing the e-mail

responses from nine alleged BNSF employees).

 Information was kept from the Rapid Responder that the

train was fixed by the conductor and Plaintiff. Also,

the crew should have been told to wait until the Rapid

Responder arrived to attempt to remove the cotter key.

 BNSF’s conclusions that Plaintiff violated safety

policies was erroneous.

Generally, expert testimony is permitted under the following

criteria:

A witness who is qualified as an expert by knowledge,

skill, experience, training, or education may testify in

the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other

specialized knowledge will help the trier of fact

to understand the evidence or to determine a fact

in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles

and methods; and

(d) the expert has reasonably applied the principles

and methods to the facts of the case.

Fed. R. Evid. 702.

The court acts as a gatekeeper on two fronts under Rule 702

– whether the proposed expert witness is qualified to render the

opinions he sets out and, if he is so qualified, whether the

opinion is sufficiently supported by making “a preliminary

assessment of whether the reasoning or methodology underlying the

testimony is scientifically valid and of whether that reasoning or

methodology properly can be applied to the facts in issue.”

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593

(1993); see also Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1233

(10th Cir. 2005). This analysis applies to all expert testimony.

Kuhmo Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999).

Just as the mere possession of a degree does not qualify and

individual from rendering a specific opinion, the mere ownership

of a small railroad leasing three miles of track does not qualify

Mr. Rangel to render opinions concerning the removal of a cotter

key from an F-style knuckle of which he admits he has had limited

knowledge and experience. See e.g. Ralston v. Smith & Nephew

Richards, Inc., 275 F.3d 965, 970 (10th Cir. 2001)(“. . . merely

possessing a medical degree is not sufficient to permit a physician

to testify concerning any medical-related issue”)(citation

omitted). At the outset, Mr. Rangel has no specialized training,

skill, knowledge, or education to render an opinion on the safety

of removing a cotter key on a broken F-style knuckle or the

training or equipment necessary to safely do so. Indeed, he was

not even aware such a cotter key existed on this type of knuckle

for a good part of his career. This leaves his experience which

can form an appropriate basis for forming an opinion or diagnosis.

Kuhmo Tire, 526 U.S. at 152; Daubert, 509 U.S. at 592. However,

the expert must “explain how that experience leads to the

conclusion reached, why that experience is a sufficient basis for

the opinion, and how that experience is reliably applied to the

facts.” United States v. Fredette, 315 F.3d 1235, 1240 (10th Cir.

2003) quoting Fed. R. Evid. 702, Advisory Committee Notes.

Nothing in Mr. Rangel’s experience as an owner of a small

railroad would establish his qualifications render his far-

reaching opinions as an expert witness. He has little to no

experience in the removal of a cotter key on a knuckle pin to

remove the F-style knuckle at issue in this case. The record is

devoid of evidence that Mr. Rangel taught this type of specialized

training in his MODOC Academy but rather only that it should not

be done without sufficient support offered for this conclusion.

As a result, this Court concludes that Mr. Rangel is not qualified

to render opinions on the safety of removing the cotter key.

Beyond his qualifications, Mr. Rangel has offered opinions in

relation to which the methodology in arriving at the opinions is

flawed. The Supreme Court has made clear that “where [expert]

testimony's factual basis, data, principles, methods, or their

application are called sufficiently into question . . . the trial

judge must determine whether the testimony has ‘a reliable basis

in the knowledge and experience of [the relevant] discipline.’”

Kumho Tire Co., 526 U.S. at 149 (1999) quoting Daubert, 509 U.S.

at 592. To assist in the assessment of reliability, the Supreme

Court in Daubert listed four nonexclusive factors that the trial

court may consider: (1) whether the opinion at issue is susceptible

to testing and has been subjected to such testing; (2) whether the

opinion has been subjected to peer review; (3) whether there is a

known or potential rate of error associated with the methodology

used and whether there are standards controlling the technique's

operation; and (4) whether the theory has been accepted in the

scientific community. Daubert, 509 U.S. at 593–94. The list is

not exclusive, and courts applying Daubert have broad discretion

to consider a variety of other factors. Kumho Tire, 526 U.S. at

150.

Generally, the focus should be upon an expert's methodology

rather than the conclusions it generates. Daubert, 509 U.S. at

595. An expert's conclusions, however, are not completely immune

from scrutiny. “A court may conclude that there is simply too

great an analytical gap between the data and the opinion

proffered.” General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).

In the end, the purpose of the Daubert inquiry is always “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.” Kumho Tire, 526 U.S. at 152.

A review of the various opinions offered by Mr. Rangel in

his expert report reveals little support for the conclusions

reached. Mr. Rangel states that Plaintiff and the conductor should

not have removed the cotter key, that they received insufficient

training to remove the cotter key, and that some warning was

required from the railroad about the lack of safety in removing

the cotter key. Mr. Rangel offers nothing but a bald assertion

that Plaintiff and the conductor should not have attempted to

remove the cotter key with no foundation for the opinion. He also

states they received insufficient training to remove the cotter

key. Certainly, Mr. Rangel ignores Plaintiff’s deposition

testimony. She believed the removal to be “no big deal” and was

familiar with the operation to do so. See Plaintiff’s Depo., p.

44, ll. 22-24. Mr. Rangel’s opinion on the training is largely

based upon his belief that the key knocker device is the safest

way to remove the cotter key and appears to suggest that it is the

only way to remove it – again, without sufficient foundation stated

in his testimony or expert report for arriving at such an opinion.

BNSF is correct in its interpretation of the decision in Ezell v.

BNSF Railway Co., 949 F.3d 1274 (10th Cir. 2020). It is the

obligation of the railroad to provide a safe workplace (and

consequently for a plaintiff to prove the railroad provided an

unsafe workplace in a FELA action) and not the safest possible

workplace. Id. at 1282. (“But to show railroad negligence, FELA

requires plaintiffs to show an unsafe workplace — not a failure to

provide the safest possible workplace.”). Mr. Rangel fails to

provide support for his opinion that the use of a hammer and chisel

to remove the cotter key constitutes a breach of the duty for BNSF

to provide a safe workplace – an opinion to which he was late

coming at the Daubert hearing conducted by this Court.

Mr. Rangel also opines that Plaintiff was “tricked” by BNSF

employees to violate federal regulations. This is the type of

“opinion shading” that clouds this expert’s methodology as a whole.

The record – and Mr. Rangel – offers no support for this

conclusion.

The opinion that the “Mechanical Help Desk” should have known

that Plaintiff and the conductor did not have a key knocker device

presupposes that any alternative removal means was per se unsafe.

This opinion lacks support in methodology.

Mr. Rangel also contends in his report and at the hearing

that BNSF failed to provide training on cotter key removal, citing

to the e-mail survey results to support his opinion. The ad hoc

e-mail survey to unidentified – and apparently unidentifiable –

individuals represented to be BNSF employees is precisely the type

of manufactured support that the Daubert standards were formulated

to avoid. Not only is the methodology of the surveying conducted

by Mr. Rangel suspect, but it is prejudicial to BNSF the results

cannot be tested for reliability. His conclusions are not

supported by competent evidence or by tested methodology and will

not be permitted.

Mr. Rangel states that the crew should have been told to wait

until the Rapid Responder arrived to remove the cotter key. This

statement is derivative of the contention that Plaintiff and the

conductor should never have attempted to remove the key and is

equally unsupported.

Mr. Rangel’s final contention in his report that BNSF’s

conclusions that Plaintiff violated safety policies were incorrect

is not the type of issue upon which expert testimony assists the

jury. The jury as fact finder is fully capable of evaluating the

evidence and determining whether BNSF’s conclusions were correct.

As a result, this Court concludes that Mr. Rangel lacks the

qualifications and did not employ reliable methodology to reach

the conclusions to which he testified at the hearing and on which

he offered his expert report. His testimony will be excluded from

trial.

IT IS THEREFORE ORDERED that Defendant’s Daubert Motion

Regarding David Anthony Rangel (Docket Entry #157) is hereby

GRANTED

IT IS FURTHER ORDERED that Defendant’s Fourteenth Motion in

Limine Regarding David Rangel’s Opinions on the Cotter Key and Its

Removal (Docket Entry #155) is hereby GRANTED.

IT IS FURTHER ORDERED that Defendant’s Fifteenth Motion in

Limine [Regarding Whether] RFE Beals Intentionally or

“Maliciously” ”Tricked” Plaintiff into Violating Federal Law by

“Hiding” Vital Information or That RFE Beals is Culpable for

Plaintiff’s Injuries (Docket Entry #156) is hereby GRANTED.

IT IS SO ORDERED this 27th day of August, 2020.

______________________________

KIMBERLY E. WEST

UNITED STATES MAGISTRATE JUDGE