Plaintiff Matthew Thomas was formerly employed by the Defendant, BNSF Railway Company (“BNSF”) as an engineer. Thomas filed this wrongful termination suit against BNSF claiming it was a retaliatory measure on account of his whistleblower status under the Federal Railway Safety Act (“FRSA”) due to his engagement in protected activities such as reporting concerns regarding BNSF’s hours of service violations to the Federal Railroad Administration (“FRA”) and voicing safety and mistreatment concerns to his supervisors. BNSF alleged that Thomas’ termination was caused by his handling of a train which derailed under his control and caused $2.2 million in damages. According to the report generated by Technical Research and Development (“TR&D”) group, train handling was deemed to be the cause of the derailment, specifically the use of excessive dynamic braking by Thomas.
The Railroad Expert Witness Testimony
BNSF moved to exclude two of Thomas’s purported experts: (1) George Robert Newman, MSME, PE, AMS and (2) Robert T. McCarthy as per Federal Rule of Civil Procedure 26(a)(2), Federal Rule of Civil Procedure 37(c)(1) and Daubert standards.
Newman, a Mechanical Engineer by profession is also a Railroad Track Consultant and Railroad Expert Witness who was retained by Thomas to opine on the train derailment incident that occurred during his employment at BNSF.
McCarthy is a Railroad Consultant who has worked on several high-profile cases involving rail equipment and severe injury to employees. He was retained by Thomas to opine on the policies and procedures of BNSF besides the derailment incident in question.
BNSF also moved for summary judgment on Thomas’ FRSA retaliation claim.
Discussion by the Court
As per Rule 26(a)(2)(A)-(C) of the Federal Rules of Civil Procedure, Thomas was expected to disclose his experts by September 16, 2022, BNSF was required to disclose experts by October 17, 2022 and the rebuttal expert disclosures were expected to be submitted by November 17, 2022. The discovery deadline, including expert depositions, was originally scheduled for December 16, 2022, and was continued for an additional 30 days until January 15, 2023.
Months after his expert disclosure deadline, Thomas (Whistleblower) submitted an amended expert disclosure statement disclosing Newman and McCarthy as retained expert witnesses on November 18, 2022 claiming that instead of seeking an extension from the Court, an agreement was reached with BNSF regarding the submission of expert disclosures by November 18, 2022. The November 18 Disclosure, however, only included Newman’s report. Thomas did not submit another amended expert disclosure report or provide McCarthy’s report till December 9, 2022.
Except for arguing that his initial disclosure of McCarthy was identical to BNSF’s disclosure of one of its witnesses, Thomas provided no sufficient explanation regarding his failure to timely disclose McCarthy. The Court decided that McCarthy’s report warranted exclusion on account of Thomas’ failure to prove that his late disclosure was substantially justified or harmless.
But the Court found Robert Newman’s late disclosure harmless based on Thomas’ agreement with BNSF to submit his expert disclosures by November 18, 2022 and because BNSF had over a month to review Newman’s deposition transcript considering his deposition took place on December 15, 2022.
BNSF nevertheless sought the exclusion of Newman’s testimony arguing that it failed to meet the Daubert standards. BNSF argued that it was based on speculation and also added that the methodology used by Newman was unreliable. Thomas, heavily relying on Arizona and New Hampshire law, argued that Newman’s report could be “shaky” yet permissible and that the jury should “exercise its fact-finding function.”
Newman testified regarding possible rail defects that could have existed, and how such a hypothetical rail defect could lead to a derailment. When Newman explained that a sunkink could have contributed to the derailment while he was being questioned, it was found that Newman never examined the actual site or the track of the derailment at issue, and only looked at a few pictures taken from a distance by someone else which is why he was not certain of a rail defect existing on the July 25, 2020 train derailment or that any such hypothetical defect caused that derailment.
It was also found that he did not take into consideration facts as fundamental as the location of the derailment or the temperature of the location when he said he did not know the exact location of the derailment incident in Arizona except for the fact that it was “nearby” and went on to rely on the temperature in Phoenix, Arizona despite the derailment occurring in the mountains, near Prescott, Arizona.
The Court observed that Newman needed to be able to point to some objective source to be able to justify his conclusions and his research had to be described in sufficient detail for the Court to assess its scientific validity yet no such showing was made by Thomas with regard to Newman in this case.
The Court held that however well-qualified an expert may be, it was necessary for him to take substantial as well as fundamental facts such as where the derailment occurred and the temperature of the location into consideration in order to generate a sound opinion which Newman had failed to take into consideration in this case.
The Court excluded the testimony of both experts, Robert McCarthy and Robert Newman. McCarthy’s testimony was excluded as per Federal Rule of Civil Procedure 26(a)(2) as well as Federal Rule of Civil Procedure 37(c)(1) and Newman’s testimony was excluded on Daubert grounds. The Court granted BNSF’s motion for summary judgment on Thomas’ Federal Railway Safety Act (“FRSA”) retaliation claim and entered judgment in favor of Defendant, BNSF Railway Company and against Plaintiff, Matthew Thomas prior to dismissing the case.
- Regardless of an expert’s qualifications, their arguments are only convincing to the Court if their testimony is premised on substantial as well as fundamental facts and if the methodology employed by them is reliable.
- Both parties have to stick to the expert disclosure deadline although an exception may be made if an agreement is reached with the opposing party regarding the disclosure of the expert witness in question. In any case, it is important for the opposing party to have enough time to be able to review the transcript of the expert in question’s deposition. If an expert witness is disclosed late, the party retaining them has to provide a sufficient explanation that proves that the delay was justifiable or harmless.