Schulenberg v. BNSF Ry. Co.

Decision Date27 December 2018
Docket NumberNo. 18-6003,18-6003
Citation911 F.3d 1276
Parties Terry SCHULENBERG, Plaintiff-Appellant, v. BNSF RAILWAY COMPANY, Defendant-Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

Patrick S. O'Brien, Law Office of Patrick S. O'Brien, St. Louis, Missouri, for Plaintiff-Appellant.

Robert D. Hart (Christopher D. Wolek and Michael Womack with him on the brief), Mullican & Hart, P.C., Tulsa, Oklahoma, for Defendant-Appellee.

Before MATHESON, PHILLIPS, and McHUGH, Circuit Judges.

McHUGH, Circuit Judge.

Terry 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 district court.


On 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.

At his 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.

At the 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.

When 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.1 After Mr. Wallace's inspection, BNSF raised the speed limit back to forty miles per hour.

Mr. 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 claim2 , leaving only his "single-event FELA negligence claim." Appellant's App. vol. III, at 168.

BNSF 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.


On 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.

A. Liability under FELA

Mr. Schulenberg's FELA claim alleges that BNSF is liable for his injuries under 45 U.S.C. § 51. That section provides,

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, 131 S.Ct. 2630, 180 L.Ed.2d 637 (2011) ; Straub v. BNSF Ry. Co. , 909 F.3d 1280, 1285 n.6 (10th Cir. 2018).

The FRA 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).

One of 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 1 1/4 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.

Mr. 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.

B. Exclusion of Expert Witness

Mr. 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 appeal.

1. Standard of Review

Federal 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, 113 S.Ct. 2786, 125 L.Ed.2d 469 (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, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).

Here, 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).

2. Rule 702 Standard

Federal Rule of Evidence 702 controls the admission of expert witness testimony. Rule 702 provides,

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

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