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.

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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.

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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.

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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., 

, 274 (5th Cir. 1998).
      7
       Knight v. Kirby Inland Marine, Inc., 

, 351 (5th Cir. 2007) (quoting
Bocanegra v. Vicmar Servs., Inc., 

, 584 (5th Cir. 2003)).
      8
         Daubert v. Merrell Dow Pharmaceuticals, Inc., 

, 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

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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
           

.
       10
            

(citation omitted) (internal quotation marks omitted).

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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
            

.
       13
            

         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, 

, 318 (5th Cir. 2007) (quoting Viterbo v. Dow
Chem. Co., 

, 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, 

, 313 (5th Cir. 2007) (citation omitted).
       20
            

          See, e.g., Mitcham v. Ill. Cent. Gulf R.R. Co., 

, 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

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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., 

, 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 

        Ill. Cent. R.R. Co. v. White, 

, 318 (Miss. 1992) (quoting New Orleans
& Ne. R.R. Co. v. Lewis, 

, 172, 

, 489 (Miss. 1952)); Donald v. Gulf
M. & O. R.R. Co., 

, 777 (Miss. 1954).
       24
         Irby v. Travis, 

, 897 (Miss. 2006); Ill. Cent. R.R. Co. v. McDaniel, 

, 811 (Miss. 1963); 

.
       25
            

.

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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




       

; see also Lowery v. Ill. Cent. Gulf R.R., 

, 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, 

, 1171 (Miss. 2002).
       28
          

. 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., 

(“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, 

, 857–58 (Miss. 1962); see also 

(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 

(“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.”); 

(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 —, 

at *15–17 (Miss.
Nov. 29, 2012) (en banc).
       33
            

(granting directed verdict to railroad company).

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