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Tenth Circuit Upholds Exclusion of Plaintiffs Experts in Car Accident Lawsuit Involving Train – Cornwell v. Union Pacific Railroad
As a Missouri auto accident lawyer, I know railroad crossings can be a serious hazard for Midwestern drivers. A crash between a car and a train is no contest at all, and some crossings, particularly rural ones, can be dangerously poorly marked. So I was interested to see an adverse ruling from the Tenth U.S. Circuit Court of Appeals for a man who lost his wife in a train accident. In Cornwell v. Union Pacific Railroad Co., Dennis Cornwell lost in trial court after the court dismissed three of his four expert witnesses testifying as to the crossing’s safety. He challenged those dismissals on appeal and also the summary judgment granted to Union Pacific on other safety claims. The Tenth upheld the district court, finding its decisions well supported by precedent.
Renia Cornwell hit a Union Pacific locomotive at 11:45 a.m. at an at-grade crossing, killing her at the scene. Some, but not all, witnesses heard the train’s horn sound before the collision, and the train’s onboard recorders provided contradictory information on the horn. The crossing also had warning signs, but no lights or gates; the installation of those safety features was completed about a month after the accident. Dennis Cornwell eventually sued Union Pacific for negligent, reckless and intentional wrongdoing in the operation of the crossing and the horn. At trial, the Oklahoma district court excluded three of Cornwell’s four witnesses, finding their testimony unreliable under Daubert. Cornwell went to trial with the fourth expert witness, but the jury found for Union Pacific.
On appeal, Cornwell argued that the district court incorrectly assessed the evidence the witnesses were offering. One, general railroad expert Alan Haley, Jr., was deemed unqualified, unreliable and relying on insufficient data. Two others, accident reconstructionist Robert Painter and his videographer, Bryan Schubert, were excluded because their accident reconstruction was dissimilar to the conditions of the actual crash, and also because they had trespassed on Union Pacific property during their research. The Tenth Circuit upheld these. Haley “lacked the proper background,” the Tenth found, and frequently changed his opinions on specific factual issues like the reliability of the train’s onboard video. Thus, he would not be able to give meaningful help to the jury. Similarly, the Tenth found Painter and Schubert’s reconstruction was speculative and conclusory because they tried to reconstruct Renia Cornwell’s view using a minivan rather than an SUV and the wrong type of locomotive, and made assumptions about how her eyes would have tracked as she reached the intersection. However, it declined to reach the trespassing issue, noting that the Daubert reasons were enough to uphold their exclusion and well supported by Tenth Circuit precedent and other caselaw.
As a southern Illinois car crash attorney, I am disappointed in this ruling. Excluding witnesses is not just a procedural matter; excluding expert witnesses is essentially excluding evidence. Because there’s no clear other way to demonstrate certain issues to a jury, having experts excluded can sound a death knell for the case. For this reason, defendants like very much to exclude the plaintiff’s expert witnesses, then try to have the case dismissed for lack of evidence. It’s also disappointing that the court declined to reach the trespassing issue, which is unusual — most accident reconstruction takes place on public roads not requiring permission, and permission from the adverse party might be difficult to get. As a St. Louis motor vehicle accident lawyer, I’d be pleased to see it revisited in other cases.