John Brown v. Natl Railroad Passenger Corp.

Case: 11-60654 Document: 00512126166 Page: 1 Date Filed: 01/28/2013

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

January 28, 2013

No. 11-60654 Lyle W. Cayce

Clerk

JOHN L. BROWN,

Plaintiff - Appellant

v.

ILLINOIS CENTRAL RAILROAD COMPANY,

Defendant - Appellee

Appeal from the United States District Court

for the Southern District of Mississippi

Before HIGGINBOTHAM, ELROD, and HAYNES, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

In May 2008, an Amtrak passenger train struck the appellant, John

Brown, as he drove his garbage truck across railroad tracks owned and

maintained by Illinois Central Railroad Company (“Illinois Central”). Brown

sued, claiming that Illinois Central failed to signalize the crossing properly. The

district court awarded summary judgment to Illinois Central. We affirm.

I.

On an afternoon, John Brown was driving his Mack garbage truck south

along County Line Road on his usual route in Copiah County, Mississippi.

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Robert Purnell, Brown’s assistant, was riding on the rear of the truck. Not far

behind Brown, a southbound Amtrak passenger train cruised down tracks

parallel to County Line Road, tracks that Illinois Central then owned and

maintained.

As he had for years, Brown turned right onto Hartley Lane, bearing west

toward the railroad tracks about 56 feet ahead. An advance warning sign stood

22 feet from the tracks, followed by a “railroad crossbuck” sign 15 feet from the

tracks. About nine seconds after Brown turned onto Hartley Lane, the

southbound Amtrak train struck his truck broadside, throwing Brown and

Purnell from the truck and tearing it to pieces. Both men sustained serious

injuries, the Amtrak train derailed, and a number of passengers suffered minor

injury.

Amtrak engineer Mervill Cheatwood and foreman Mark Burris were

operating the train at the time of the accident. Both men testified that they saw

Brown turn off of County Line Road ahead of them, and that the view between

the train and the truck was unobstructed as the truck turned onto Hartley Lane

and until impact.1 Both men also testified that Brown never stopped before he

entered the crossing. As soon as Cheatwood realized a collision was inevitable,

he applied the train’s emergency brake. The train’s event data recorder

indicates that Cheatwood triggered the brake some 232 to 239 feet from impact.

It is undisputed that the Amtrak train was within the federally mandated speed

limit at the time of the collision.2

1

Burris first saw Brown’s truck when it was “right in the process of turning.”

Cheatwood first saw the truck before it turned onto Hartley Lane, while it was still moving

south on County Line Road.

2

The Amtrak train’s event data recorder indicated that the train’s maximum speed

within the five minutes prior to impact was 80 miles per hour — within the federally

mandated speed limit for the Illinois Central tracks.

2

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George Lewis saw the crash while driving south down County Line Road.

Lewis testified that he watched Brown turn onto Hartley Lane ahead of him.

Lewis also testified that he heard the Amtrak train blow its horn as it emerged

from a tree line well before the Hartley Lane crossing, and that Brown turned

onto Hartley Lane and drove onto the tracks without ever stopping.

An accident reconstruction team engaged by Illinois Central prepared

photographs that attempt to reproduce Brown’s view to the north after he turned

onto Hartley Lane. The images show that a motorist approaching the crossing

has a clear view of oncoming southbound trains and suggest that Brown should

have been able to see the approaching Amtrak train at least 43 feet before he

reached the tracks.3 Illinois Central’s accident reconstruction expert testified

that when Brown was 62 feet from impact, his sight distance along the tracks

was 1200 feet, and that by the time Brown reached the advance warning sign 22

feet from the tracks, his line of sight increased to more than 2600 feet. Brown’s

liability expert confirmed that at a point on Hartley Lane 25 feet to the east of

the crossing, visibility to the north exceeds 2000 feet. Moreover, Brown’s

accident reconstruction expert testified that the Amtrak train was about 1145

feet from the crossing nine seconds before impact (when Brown began his turn

onto Hartley Lane), and that Brown should have been able to see the oncoming

train from the advance warning sign.

Nine local residents testified that visibility at the Hartley Lane crossing

was adequate to negotiate the tracks safely. Brown himself testified that he

had regularly traversed the crossing for years, admitting that “you can see a long

3

The first photograph, taken at a point 43 feet to the east of the tracks, shows the

Amtrak train clearly visible at 463 feet from impact. The second photograph, taken 22 feet

to the east of the tracks, shows the train clearly visible at 290 feet from impact. The third

photograph, taken 14 feet to the east of the tracks, show the train clearly visible at 232 feet

from impact. Before the district court, Illinois Central introduced expert testimony that

explains the facts and assumptions underlying the photographic reconstruction.

3

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way” up the tracks. When Illinois Central’s attorney asked Brown why he had

not requested his assistant, Purnell, to flag the crossing for him, Brown

appeared incredulous:

Q: If you’ve got a helper with you, such as Mr. Purnell . . . and

you need his assistance directing you, flagging you to back up,

go forward, or whatever, do you ask him and use him for that?

A: Yes, sir, I would.

***

Q: If you felt like you needed his assistance flagging across the

railroad tracks, would you ask him?

A: No sir. Because to go across railroad tracks forward, why

would I — why would I ask him to flag me?

***

Q: Did you — you’re saying you did not need his assistance for

going forward across the tracks, correct?

A: No, sir. In the couple years I’ve been down there, I haven’t

had — haven’t needed anybody to go forward to go across the

railroad tracks.

Q: Because you can see?

A: Yes, sir.

Brown and Purnell sued Amtrak and Illinois Central in the Southern

District of Mississippi, invoking diversity. Before the district court, Brown and

Purnell claimed that (1) Amtrak breached its statutory duty to blow the train’s

horn continuously within 900 feet of the crossing,4 and (2) Illinois Central

breached its common law duty to make an extrahazardous railroad crossing

reasonably safe by installing active signaling devices. In support of their

signalization claim against Illinois Central, Brown and Purnell sought to admit

testimony from Dr. Gary Long, who intended to testify that the Hartley Lane

crossing was extrahazardous and needed active signals.

4

See Miss. Code Ann. § 77-9-225. Amtrak’s event data recorder indicated that the train

began blowing its horn approximately 1170 feet before the crossing, blowing it continuously

until impact. A number of witnesses confirmed that the horn sounded for a long period of time

prior to the collision. However, two witnesses in the vicinity of the accident testified that they

only heard one blast from the train’s horn immediately before the collision. Other witnesses

testified that they heard only the collision.

4

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Amtrak and Illinois Central moved for summary judgment. Illinois

Central also moved to exclude Dr. Long’s testimony under Federal Rule of

Evidence 702. The district judge granted both of Illinois Central’s motions but

denied Amtrak’s motion for summary judgment.5 Brown’s horn claim against

Amtrak proceeded to trial and the jury returned a verdict in Amtrak’s favor.

Brown has accepted the jury verdict and appeals only his signalization claim

against Illinois Central. Purnell does not appeal.

II.

Brown claims that the district court erred by excluding Dr. Long’s

testimony under Rule 702, complaining that the district court made “no

assessment whatsoever . . . in regards to Expert Long’s qualifications to testify

that the crossing was extrahazardous.”

We review a trial court’s decision to exclude expert testimony for abuse of

discretion.6 “A trial court abuses its discretion when its ruling is based on an

erroneous view of the law or a clearly erroneous assessment of the evidence.”7

As read by Daubert, Rule 702 requires trial courts to ensure that proffered

expert testimony is “not only relevant, but reliable.”8 To determine whether

5

The district court found a fact issue on Brown’s horn claim, reasoning that though

Amtrak’s event data recorder clearly showed that the Amtrak train had sounded its horn

during the statutorily mandated interval, witness accounts conflicted.

6

Moore v. Ashland Chem. Inc., 151 F.3d 269, 274 (5th Cir. 1998).

7

Knight v. Kirby Inland Marine, Inc., 482 F.3d 347, 351 (5th Cir. 2007) (quoting

Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581, 584 (5th Cir. 2003)).

8

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993). Rule 702

provides that:

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

5

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proffered testimony is reliable, the trial court must make “a preliminary

assessment of whether the reasoning or methodology underlying the testimony

is . . . valid and of whether that reasoning or methodology properly can be

applied to the facts in issue.”9 Ultimately, the trial court must also find an

“adequate fit between the data and the opinion proffered.”10

Dr. Long’s preliminary report to the district court concluded that the

Hartley Lane crossing is “extraordinarily hazardous or ultrahazardous” and

“needs active warning devices.” First, Long observed, the crossing is “extremely

narrow, only about 16'-7" wide.” Second, the 115-degree angle of the intersection

is “dangerous[ly] skewed.” Third, “the crossing surface [is] not smooth” because

of “loose gravel or ballast” scattered on the pavement. Fourth, the roadway

leading up to the crossing is on a “steep incline[],” rising over 2.5 feet in

elevation “[w]ithin the short space of 55 feet.” Finally, Long suggested, the

crossing fails to satisfy the sight-distance guidelines promulgated by the U.S.

Department of Transportation (“USDOT”). However, during cross-examination

at the subsequent Daubert hearing, Long admitted that visibility from the

advance warning and crossbuck signs exceeded the value specified in the

guidelines. When counsel for Illinois Central asked Long “why . . . anybody in

this courtroom [should] think that [his] testimony about [the] extra-hazardous

nature of the crossing and sight distance and all is reliable,” Long responded

that “it’s based on obviously education and experience.”

The district court granted Illinois Central’s Daubert motion, concluding

that Long had failed to articulate a credible methodology to sustain his

of reliable principles and methods; and (d) the expert has reliably applied the

principles and methods to the facts of the case.

Fed. R. Evid. 702.

9

Daubert, 509 U.S. at 592–93.

10

Moore, 151 F.3d at 276 (citation omitted) (internal quotation marks omitted).

6

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conclusions.11 We agree. To establish reliability under Daubert, an expert bears

the burden of furnishing “some objective, independent validation of [his]

methodology.”12 “The expert’s assurances that he has utilized generally accepted

[principles] is insufficient.”13 In this case, Long professed to base his findings on

the standards and customs of the transportation engineering profession. To that

end, his preliminary report mentioned a variety of public and private guidelines

and publications on roadway design and traffic control devices.14 However, the

report failed to explain how any of these authorities support Long’s conclusions

relating to the “narrow” pavement, “skewed” angle, “rough” surface, and “steep”

incline of the Hartley Lane crossing.15 Indeed, the USDOT’s sight-distance

guidelines suggest that visibility at the Hartley Lane crossing was more than

adequate.16 Apparently recognizing the lack of objective support for his findings,

11

See Brown v. Ill. Cent. R.R. Co., No. 3:08-CV-559, slip op. at 13 (S.D. Miss. Mar. 28,

2011) (“Dr. Long apparently intends to proffer an opinion on the standards, customs and

practices applicable to professional engineers . . . . However, Dr. Long fails to identify with

specificity which standards, customs and practices he contends apply.”).

12

Moore, 151 F.3d at 276.

13

Id. (citation omitted).

14

Among other authorities, Long’s report mentions the Green Book, the Manual on

Uniform Traffic Control Devices (“MUTCD”), and the Traffic Control Devices Handbook. The

Green Book is a manual on roadway design published by the American Association of State

Highway and Transportation Officials. The MUTCD is published by the U.S. Department of

Transportation. The Traffic Control Devices Handbook is a supplement to the MUTCD

published by the Institute of Transportation Engineers.

15

Curiously, many of the findings in Long’s report are supported by detailed references

to published standards; however, these findings also happen to be irrelevant to Brown’s

signalization claim. For instance, Long refers to particular tables and provisions in the

MUTCD in his discussion of possible deficiencies in the crossbuck and advance warning signs

at the Harley Lane crossing. However, on appeal, Brown does not claim that there were

deficiencies in either sign.

16

Perhaps recognizing that published sight-distance requirements were not his

strongest point, Long emphasized that “[t]he minimum safe sight distances are a standard,

not a regulation . . . the minimum values must be increased where variations in conditions

exist.”

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Long emphasized his own “education and experience,” urging that “[c]ontrary to

some thinking, standards related to safety do not always have to be adopted by

some official agency in order to exist.” But we have long held that “[w]ithout

more than credentials and a subjective opinion, an expert’s testimony that ‘it is

so’ is not admissible.”17 Long’s analysis is transparently subjective and the

district court did not abuse its discretion by excluding his testimony.18

III.

Brown next argues that the district court erred in granting summary

judgment to Illinois Central. We review a district court’s order of summary

judgment de novo, applying the same standard as the district court.19 “Summary

judgment is proper if the evidence shows that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as a matter of

law.”20

Under Mississippi law, a railroad company owes the public a duty to

signalize railroad crossings. Generally, it can satisfy this duty by complying

with certain minimum statutory requirements,21 including the obligation to place

17

Hathaway v. Bazany, 507 F.3d 312, 318 (5th Cir. 2007) (quoting Viterbo v. Dow

Chem. Co., 826 F.2d 420, 424 (5th Cir.1987)).

18

As the district court observed, Long’s preliminary report also offered a number of

plainly inadmissible legal opinions. For example, Long disputed the local sheriff’s report that

the speed limit on Hartley Lane was 15 miles per hour, concluding that under his

interpretation of Mississippi law, the limit actually defaulted to 65 miles per hour. Long also

engaged in a detailed analysis of federal regulations to demonstrate that Illinois Central’s

common law tort duties were not preempted by federal law.

19

Jenkins v. Cleco Power, LLC, 487 F.3d 309, 313 (5th Cir. 2007) (citation omitted).

20

Id. (citation omitted).

21

See, e.g., Mitcham v. Ill. Cent. Gulf R.R. Co., 515 So. 2d 852, 854–55 (Miss. 1987)

(observing that “duties and obligations at railroad crossings . . . [are] predominantly a matter

of statutory law” and upholding jury verdict for the defendant railroad company because the

company had complied with minimum statutory requirements and the crossing was not

8

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a “railroad crossbuck” sign at a specified distance from the railroad crossing.22

However, if a railroad crossing is “unusually dangerous” or “extrahazardous,”

the Mississippi Supreme Court has held that “ordinary care requires the railroad

company to meet the peril with unusual precautions,” such as gates, lights, or

other active signaling devices.23

Brown does not assert that Illinois Central failed to maintain the Hartley

Lane crossing in accordance with statutory requirements, and the only issue in

dispute is whether the crossing was so “unusually dangerous” as to trigger a

common law duty to install additional signaling devices. The Mississippi

Supreme Court has held that “[t]he test of whether a railroad crossing is

unusually dangerous [is] . . . the ability of the traveler to observe the approach

of the train from the direction in which it is coming.”24 In cases where the

railroad has posted the statutorily mandated railroad crossbuck or other

warning signs, “[t]he railroad [is] entitled to assume that approaching motor

vehicle drivers would upon seeing the signs slow sufficiently to see whether or

not a train was on or near the crossing.”25 For example, in Mitcham v. Illinois

Central Gulf Railroad Co., the Mississippi Supreme Court affirmed a lower

court’s decision that visibility was adequate where a motorist at a crossbuck sign

unusually dangerous); Wilner v. Miss. Exp. R.R. Co., 546 So. 2d 678, 681–82 (Miss. 1989)

(granting directed verdict to the railroad company, reasoning that the company had complied

with the statutory crossbuck requirement and that “nothing about [the] crossing . . . made it

deceptively dangerous, or any more dangerous than the hundreds of others in this state”).

22

See Miss. Code Ann. § 77-9-247. The railroad company must also clear obstructing

vegetation within 300 feet of the crossing’s centerline. See id. § 77-9-254.

23

Ill. Cent. R.R. Co. v. White, 610 So. 2d 308, 318 (Miss. 1992) (quoting New Orleans

& Ne. R.R. Co. v. Lewis, 214 Miss. 163, 172, 58 So. 2d 486, 489 (Miss. 1952)); Donald v. Gulf

M. & O. R.R. Co., 71 So. 2d 776, 777 (Miss. 1954).

24

Irby v. Travis, 935 So. 2d 884, 897 (Miss. 2006); Ill. Cent. R.R. Co. v. McDaniel, 151

So. 2d 805, 811 (Miss. 1963); Donald, 71 So. 2d at 777.

25

Wilner, 546 So. 2d at 681–82.

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15 feet from the subject crossing could see approximately 1955 feet along the

railroad tracks.26

To be entitled to summary judgment, Illinois Central must show that the

Hartley Lane crossing was not “unusually dangerous” as a matter of Mississippi

law. Illinois Central faces a high burden, as the Mississippi Supreme Court has

held that the question of whether a crossing is “unusually dangerous” should

generally be submitted to a jury.27 However, where photographs and undisputed

measurements establish that a driver approaching the crossing would have had

an unobstructed view of an oncoming train, the Court has instructed trial courts

to grant judgment as a matter of law. For example, in Illinois Central Railroad

Co. v. Burns, the Court granted a directed verdict to the railroad where

photographic evidence and testimony established that a driver entering the

subject railroad crossing could see some 1000 feet along the tracks toward the

oncoming train.28 Similarly, in Illinois Central Railroad Co. v. Smith, the Court

granted a directed verdict to the railroad where photographic evidence and

testimony established that a motorist could see roughly 425 feet along the tracks

26

515 So. 2d at 854; see also Lowery v. Ill. Cent. Gulf R.R., 356 So. 2d 584, 587 (Miss.

1978) (affirming jury verdict in favor of railroad where witnesses testified that at a point 15

feet from the crossing, a motorist could see 500 feet along the railroad track toward an

oncoming train).

27

See, e.g., Ill. Cent. R.R. Co. v. Hawkins, 830 So. 2d 1162, 1171 (Miss. 2002).

28

Burns, 396 So. 2d at 640. While Burns dealt with a private railroad crossing —

where a railroad’s duties are arguably lower — the Mississippi Supreme Court has applied

Burns as a measuring stick in public crossing cases. See, e.g., Hawkins, 830 So. 2d at 1171

(“In Illinois Cent. Gulf R.R. v. Burns, . . . this Court found that a jury verdict against the

railroad for negligent maintenance of its right-of-way was against the overwhelming weight

of the evidence. In Burns, however, it was noted that there was an unobstructed view for more

than 1000 feet. The same can not be said for the Mileston crossing.”).

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at a point 350 feet from the crossing, and roughly 1300 feet along the tracks at

a point 216 feet from the crossing.29

Here, Illinois Central’s photographs show that a motorist approaching the

Hartley Lane crossing from the east has a clear view of oncoming southbound

trains. Moreover, Brown’s own experts testified that visibility to the north

exceeds 2000 feet at a point 25 feet from the tracks, and that the Amtrak train

was 1145 feet from the crossing when Brown began his turn onto Hartley Lane.

Brown urges that “the real question is whether the sight distance was adequate

beyond 25 feet from a crossing where 80 mph trains are expected.” However,

Brown is mistaken. Under Mississippi law, Illinois Central was entitled to rely

on the fact that Brown would surveil the tracks upon reaching the advance

warning sign (22 feet from the crossing) or the railroad crossbuck (15 feet from

the crossing).30 Brown’s argument is also in tension with Illinois Central’s

photographs and expert testimony, as well as the testimony of the Amtrak

engineer and foreman, which suggest that Brown had an unobstructed view of

the Amtrak train as he turned onto Hartley Lane and at all times thereafter.31

29

See Ill. Cent. R.R. Co. v. Smith, 140 So. 2d 856, 857–58 (Miss. 1962); see also Wilner,

546 So. 2d at 682 (granting directed verdict to defendant railroad because “there is nothing

about this crossing which made it deceptively dangerous, or any more dangerous than the

hundreds of others in this state”).

30

See Wilner, 546 So. 2d at 681–82 (“By clear, unmistakable signs and language there

was a warning of a crossing. The railroad was entitled to assume that approaching motor

vehicle drivers would upon seeing the signs slow sufficiently to see whether or not a train was

on or near the crossing.”); Mitcham, 515 So. 2d at 855 (Miss. 1987) (“Mitcham . . . urges that

. . . a motorist should be permitted to drive at the maximum speed limit without regard to the

fact that he is approaching a railroad crossing, and that the distance of unobstructed vision

should be based on this speed. This contention is wholly without merit and borders on the

ridiculous . . . . [A] motorist also ha[s] a duty to look and listen as he approaches a crossing.”).

31

Illinois Central’s photographic reconstruction indicates that Brown had a clear view

of the train at least 43 feet before reaching the tracks. Moreover, its expert testified that when

Brown was 62 feet from impact, his sight distance to the north along the tracks was at least

1200 feet. Brown’s own expert testified that the Amtrak train was 1145 feet to the north of

the crossing when Brown began his turn onto Hartley Lane. Consistent with the testimony

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As for Brown’s suggestion that the train’s speed rendered the crossing unusually

dangerous, Brown’s own expert observed that at a point from the crossbuck 15

feet before the crossing, the view was “adequate . . . to see a train approaching

at 80 miles per hour . . . with sufficient time to make an appropriate decision

whether to cross the track or wait.”

Brown also claims that the district court erred in failing to give due

consideration to the many other problems that Dr. Long identified with the

crossing. However, even supposing that Long’s ruminations on the crossing’s

“narrow” pavement, “skewed” angle, “rough” surface, and “steep” incline are

admissible, the Mississippi Supreme Court recently clarified that such factors

are irrelevant to a railroad company’s tort duties at public crossings, reasoning

that railroad companies “d[o] not have any control over the grade of the crossing,

nor any responsibility to change it,” and that “[l]ikewise, [they are] not

responsible for paving the roads leading to the crossing.”32 Moreover, even if the

conditions Long identifies are not irrelevant as a matter of law, Long’s report

fails to show how they rendered the Hartley Lane crossing “deceptively

dangerous, or any more dangerous than the hundreds of other[ crossings in

Mississippi].”33 Illinois Central has established that it is entitled to summary

judgment.

IV.

The judgment of the district court is AFFIRMED.

of Illinois Central’s and Brown’s experts, Amtrak engineer Cheatwood testified that he first

saw Brown’s truck while it was still moving south on County Line Road.

32

Ill. Cent. Gulf R.R. Co. v. Travis, — So. 3d —, 2012 WL 5951413 at *15–17 (Miss.

Nov. 29, 2012) (en banc).

33

Wilner, 546 So. 2d at 682 (granting directed verdict to railroad company).

12