JOHN A. GORMAN, United States Magistrate Judge.
The parties have consented to have this case heard to judgment by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and the District Judge has referred the case to me. Now before the Court are: the Defendant's motion for summary judgment (# 57) and the Defendant's motion to strike Plaintiffs response (# 69).
Defendant's Motion to Strike that response was carefully considered. One of the considerations was that the motion for summary judgment and its response and reply were filed before the Court's Daubert Order was entered. That means that a significant amount of Plaintiffs effort in her Response to the summary judgment motion is based on the testimony of her experts. The Court weighed whether to require Plaintiff to file an amended response that took into account the Court's Daubert ruling, but in the interests of efficiency, the Court determined the requisite adjustments could be made without requiring the Plaintiff to replead.
The particular deficiencies in the Response pointed out by Defendant were also considered, and it is true that Plaintiff's citations to that record were, in many instances, less specific than is required by Rule. The Court's familiarity with the case enabled it to overlook these deficiencies. In the interests of efficiency, the motion to strike is DENIED.
Jurisdiction is founded on the diversity of the parties' citizenship, pursuant to 28 U.S.C. § 1332(a)(1) and (c)(1). Plaintiff is the Administrator of the Estate of Cynthia Madden, deceased. Ms. Madden was a citizen of the State of Illinois. Defendant BNSF Railway Company ("BNSF") is a corporation incorporated under the laws of Delaware with its principal place of business in Texas.
The Estate is being or was administered in Rock Island County, Illinois. Defendant conducts business in Henry and Rock Island Counties, Illinois, and the claims involved in this litigation arose in Henry County, Illinois. Venue exists in this District under 28 U.S.C. § 1391(a). Pursuant to Local Rule CDIL 40.1(c), the case is assigned to the Rock Island Division of this District.
The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment should be entered if and only if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. See Jay v. Intermet Wagner Inc., 233 F.3d 1014, 1016 (7th Cir.2000); Cox v. Acme Health Serv., 55 F.3d 1304, 1308 (7th Cir.1995).
In ruling on a summary judgment motion, the court may not weigh the evidence
The court is to examine all admissible facts, viewing the entirety of the record and accepting all facts and drawing all reasonable inferences in favor of the non-movant, Erdman v. City of Ft. Atkinson, 84 F.3d 960, 961 (7th Cir.1996); Vukadinovich v. Bd. of Sch. Trustees, 978 F.2d 403, 408 (7th Cir.1992), cert. denied, 510 U.S. 844, 114 S.Ct. 133, 126 L.Ed.2d 97 (1993); Lohorn v. Michal, 913 F.2d 327, 331 (7th Cir.1990); DeValk Lincoln Mercury, Inc. v. Ford Motor Co., 811 F.2d 326, 329 (7th Cir.1987); Bartman v. Allis-Chalmers Corp., 799 F.2d 311, 312 (7th Cir.1986), cert. denied, 479 U.S. 1092, 107 S.Ct. 1304, 94 L.Ed.2d 160 (1987), and construing any reasonable doubts against the moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Trotter v. Anderson, 417 F.2d 1191 (7th Cir.1969); Haefling v. United Parcel Serv., Inc., 169 F.3d 494, 497 (7th Cir.1999).
The existence of "some alleged factual dispute between the parties," or "some metaphysical doubt," however, does not create a genuine issue of fact. Piscione v. Ernst & Young, L.L.P., 171 F.3d 527, 532 (7th Cir.1999). In other words, not just any dispute will suffice to defeat summary judgment. In order to defeat summary judgment, the non-movant must produce "significantly probative" evidence, Celotex, 477 U.S. at 327, 106 S.Ct. 2548, showing that there is a genuine dispute about a material fact. A material fact is one that is essential to a party's case. "Inferences that are supported by only speculation or conjecture will not defeat a summary judgment motion." McDonald v. Village of Winnetka, 371 F.3d 992, 1001 (7th Cir. 2004). A scintilla of evidence in support of the non-moving party's position is not sufficient to oppose successfully a summary judgment motion; "there must be evidence on which the jury could reasonably find for the [non-movant]." Anderson, 477 U.S. at 250, 106 S.Ct. 2505. The proper inquiry is whether a rational trier of fact could reasonably find for the party opposing the motion with respect to the particular issue. See, e.g., Jordan v. Summers, 205 F.3d 337, 342 (7th Cir.2000).
The parties must identify the evidence (i.e. those portions of the pleadings, depositions, answers to interrogatories, admissions, affidavits, and documents) that will facilitate the court's assessment. Waldridge, 24 F.3d at 922. See, Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). See also, Local Rule CDIL 7.1(D).
Evidence used to support or oppose summary judgment must be admissible at trial. Fed.R.Civ.P. 56(c)(2). In a Daubert Order (# 79, as supplemented by an Order entered this date denying a motion to reconsider), this Court granted BNSF's motion to bar Plaintiffs two experts. In that Order, the Court found their opinions to be wholly lacking in factual, evidentiary, and/or legal support; not based on objective or scientific evidence; unreasonable; and/or unhelpful; Because the testimony and Report of Plaintiffs experts have been barred, evidence based on their testimony and Report is not admissible and will not be considered herein. Familiarity with the Daubert Order is presumed, but references to it are nonetheless contained in
This lawsuit arises from the death of Plaintiff's decedent, Cynthia Madden, on May 28, 2007, at a railroad crossing at Cleveland Road in Henry County, Colona, Illinois. The crossing was owned and maintained by BNSF Railway Company ("BNSF"). It is equipped with active warning devices
The movement of trains through the Cleveland Road crossing is sensed and recorded by two separate event recorders, one in the locomotive itself and one at the crossing. At the crossing, the HXP-3 operates the active warning system, and the HCR records the data produced by the HXP-3. The recorder is stored in a small building called a bungalow. The HXP-3 contains a clock; this clock can be set to reflect daylight savings time, but there is no requirement that this option be selected.
At 9:38:32 p.m.
The engineer on the oncoming BNSF train was Debora James. She began sounding the horn (or whistle) on the locomotive as it passed the whistle board. At the time, the train was traveling at 26-28 m.p.h., less than the 30 m.p.h. limit BNSF has set for that area. The horn sounded in the required long, long, short, long pattern, and it sounded for at least 20 seconds before the train entered the crossing.
By 9:38:44, the gates were fully lowered; the lights and bells continued to operate. When the train came around the curve, both the engineer and the conductor were able to see a car on the tracks. When the engineer realized it was not moving, she immediately applied the emergency brake. At 9:39:03, 30 seconds after the warning system had activated, the train entered the island
One of the eyewitnesses to this horrific incident was Michael Thole. In his affidavit he states that he observed Madden's vehicle pull out in front of him a short distance before the crossing and proceed immediately ahead of him into the railroad crossing. After the car drove onto the tracks, the crossing lights began flashing while the car was still moving forward. It stalled as the gates were coming down. He waited and watched while it appeared that driver was trying to start the car. He got out of his truck and started approaching the car, but when by the time he got to the front of his truck he could see the train coming. He observed Madden get out of her car and run; he also saw the train hit her car which then struck her.
Another eyewitness was Curtis Clark. When he pulled up to the railroad crossing there was one vehicle — Thole's — stopped in front of him. The lights were already flashing and the gates were down. He saw the car on the tracks, between the lowered gates, and he heard the train whistle blowing. He observed the car move forward slightly and then stopped. He got out of his vehicle planning to help the driver when he saw the driver get out of the stalled car and look in the direction of the train. He then saw the train hit the car, which hit the driver.
Nine months before this accident, BNSF had conducted an annual safety inspection of the signal warning devices at the Cleveland Road crossing. This test showed that the timing of the gates, bells and flashers were working as intended. Between that inspection and the date of the accident, eight more inspections were conducted, the last one only 19 days before the accident. All showed that the equipment was working
Ms. Madden's children went to the crossing several days after the accident to place a memorial. While they were there, they heard a train approaching and decided to time the train. Their specific deposition testimony (Exhibits J, K and L to the Motion) about that day is important, because while they all testified that only 13-14 seconds elapsed from the time they saw the train to the time the train entered the intersection, they differed significantly with each other (and sometimes contradicted themselves) in the details of the events surrounding their timing experiment.
Michael Dillard testified that he and his sisters went to the scene 2-3 days after the accident. While they were there, he "heard a whistle, so we all three timed it on my phone, and about 13, 14 seconds before it went through the intersection [sic]. The lights came on about two or three seconds before the train went through." (Exh.L p. 28). He did not know if his sisters actually timed the train separately or if they just watched him. He later stated that from the time he first heard the whistle, it was 13-14 seconds to the time the train went through the intersection. (p.30). He also stated that the gates and lights began operating only two or three seconds before the train went through the intersection. (p.31).
Jennifer Dillard testified that a week or two after the accident (she was not sure of the date) she and Michel went to the scene. She stated that "we just went out there and I timed it with my — I have a stopwatch — on how close it was, because you can't see around the bend. So we timed it from when you first hear the first horn and the — ... gates, when they start going off and going down, that's when we started timing it." (p.41-2). After another question, she clarified that they started timing from "when you first see and hear it" which was "the same time. They honked the horn as they're coming around the corner. That's the first time you could see or hear them. Because we did it to a couple different trains." (p.42). She also stated that what she heard was "one or two short" blasts from the horn. (p.44).
Carrie Dillard testified that the timing was done by Michael Dillard's cell phone (p.43). They could hear a train coming and decided to time it. "He started the timer when we could see that train coming around that bend, and the bars came down like a couple of seconds afterwards. And then that's when you heard the train blowing its horn finally. And then probably about 13, 14 seconds is how long it took before it actually hit the intersection." (p. 43). It took "one to three seconds" for the gates to come down after he started timing. (p.47-8).
Plaintiff, as Administrator of Cynthia Madden's Estate, filed this action on May 26, 2009. She alleges that BNSF was negligent (1) "in setting or maintaining the activation of the flashing lights and gates at an interval insufficient to give adequate warning to a motorist to clear the railroad
In its answer, Defendant denies these allegations and raised a number of affirmative defenses. As is pertinent to the pending motion, the Third Defense asserts that these claims are preempted by Federal law.
Before beginning a discussion of the specific issues raised by the motion, response and reply, it is necessary to briefly mention Plaintiff's challenge to the constitutionality of summary judgments. The Court is aware that there has been some scholarly discussion in recent years on this subject. No case has been cited for the underlying proposition, however, that use of summary judgment in a civil case impinges on the Seventh Amendment. In light of the extensive application of Rule 56 within this Circuit, this Court declines to make such a finding. Moreover, given the poor development of evidence by Plaintiff, the Court finds that it would be a wholly inefficient use of judicial resources to take on that topic in this case.
BNSF argues that Plaintiff's claims are preempted because there are two regulations that cover the bases for this litigation: 49 C.F.R. 234.225, which covers the timing required for signal warnings, and 49 C.F.R. 222.21, which covers a locomotive's use of its horn. Plaintiff disagrees with the proposition that these claims are preempted because her claim is that BNSF did not comply with these regulations.
The FRSA contains a section entitled "Preemption." 49 U.S.C. 20106. This section provides: "Laws, regulations, and orders related to railroad safety and laws, regulations, and orders related to railroad security shall be nationally uniform to the extent practicable." 49 U.S.C. 20106(a)(1). Despite this provision, States are permitted to adopt or continue in force laws that are "not incompatible" with federal laws and regulations. 49 U.S.C. 20106(a)(2)(B).
Section 20106 was amended in 2002 to clarify its impact on state law causes of action. A new paragraph (c) was added, which provides:
Plaintiff's cause of action is styled as a wrongful death case under Illinois law. Plaintiff claims that Defendant failed to comply with pertinent federal regulations.
Plaintiff's first claim is that the warning time at the intersection was 12-14 seconds, below the 20 seconds required by the pertinent regulation
The documentary evidence submitted by BNSF shows that in the 9 months preceding this accident, BNSF had conducted nine safety inspections on the signal warning devices at this crossing. (Exh.B, ¶ ¶ 12-13; Exh. B(1) pp. 2-11). Each inspection showed that all of the equipment was working as intended. (Exh. B. ¶ ¶ 12, 14). Another inspection conducted the day after the accident showed the same thing — the signal warning devices were all working properly. (Exh. B ¶ 15; Exh. B(1), p. 12). Several subsequent inspections obtained the same result. (Exh. B, ¶ 16; Exh. B(1) pp. 13-15).
In addition to these tests, the data from the signal event recorder that was recorded in the signal bungalow shows that there was 30 seconds
Plaintiff has no documentary evidence with which to counter this evidence. Plaintiff made a strategic decision to base her prosecution of this case on BNSF's documents and her expert witnesses' interpretation of that data. She took no depositions, and she raised no issues as to BNSF's compliance with discovery requests until well after fact discovery closed. Because her expert's criticisms of the data were wholly without merit (as discussed at length in the Daubert Order), she is left with only BNSF's interpretation of its own data.
In response to Defendant's evidence, Plaintiff asserts that the only accurate measurement of the warning time was Michael Dillard's timing of a train at the Cleveland Road Crossing several days after the incident. This assertion contains several implicit assumptions. The first assumption is that the documentary evidence provided by BNSF is unreliable, an assumption that is simply not sustainable at this point in the litigation. Plaintiffs challenges to the reliability of BNSF's data are based entirely on the testimony of her experts, both of whom have been barred. Had Plaintiff taken some depositions or conducted other discovery, perhaps there would be support in the record for this assertion. Her strategic decision to rely solely on her experts' interpretation of the
The second assumption contained in Plaintiffs assertion is that the timing experiment is relevant evidence. As a general rule, evidence is admissible if it is relevant. Fed.R.Evid. 402. Evidence is relevant if it (1) has a tendency to make a fact more or less probable than it would be without the evidence and if it (2) is "of consequence in determining the action." Fed.R.Evid. 401. Even relevant evidence is inadmissible if its probative value is substantially outweighed by a danger of, inter alia, confusing the issues or misleading the jury. Fed.R.Evid. 403.
The issue in question is whether the active warning system began to activate at least 20 seconds before the BNSF train reached the intersection on May 28, 2007. The timing experiment is some evidence that on a different day with an unknown train traveling at an unknown speed, the active warning system afforded less than 20 seconds of warning. The timing experiment is not, however, evidence that tends to make more or less likely the actual amount of warning time given by this train on May 28, 2007. The description by Ms. Madden's children of events they observed at some undetermined time days (or possibly weeks) after the events adds nothing of value to the material facts in this case. The unplanned timing of an unknown train on a different day by inexperienced and grieving family members does not tend to make it more probable that the warning system failed to operate properly on May 28, 2007.
Indeed, this evidence is not "of consequence" to an issue in this case. Whether the system operated properly on some other day is not a question the jury must answer. Their attention must be focused on the date of the accident. The evidence fails to meet either prong of the relevance test. Because it is irrelevant, it is inadmissible and cannot be considered in opposition to a motion for summary judgment.
Even if the timing experiment were deemed to be relevant, however, that still leaves the question whether it is sufficient to create a genuine question as to the amount of warning time Ms. Madden was given on May 28, 2007.
This assumption — and it is nothing more than an assumption, because Michael and his sisters have no personal knowledge at all about how the active warning system operated on May 28 — is belied by all the other evidence in the case. BNSF has produced unrefuted evidence that on May 28, the horn blew in the requisite pattern for 20 seconds before the train reached the intersection, and that the gates began to lower, the lights to flash and the bell to ring 30 seconds before the train entered the intersection.
The eyewitnesses' descriptions of the events also appear to conflict with the assumption that there was no warning at all until Ms. Madden could physically see the train, which was 13-14 seconds before the train reached the intersection. Both of the drivers who were present at the scene
The children's decision to time a train from the time they could see it, therefore, means that the timing experiment was based on an artificially created situation that did not accurately reflect the realities of the evening in question. Introduction of such evidence would be confusing at best and misleading without question, with only minimal probative value. The evidence is, in other words, not admissible under Fed. R.Evid. 403.
It may been possible — and probably would have been wise — for Plaintiff to have timed trains at this intersection, using proper equipment and more dependable recording techniques and ending up with admissible and probative evidence. This particular method of timing was, however, so undependable and so far removed from the material facts in this case that admitting it would serve no legitimate litigation purpose.
Given the data and affidavits produced by BNSF, the eyewitness affidavits, and Plaintiff's lack of admissible evidence to contradict that evidence, there is only one conclusion. There is no genuine dispute about the material fact that the signal system worked as it was intended to work on the date of the accident. Defendant's motion for summary judgment as to this claim is therefore GRANTED.
Plaintiff's original claim based on the locomotive horn included the proposition that the locomotive horn was not sounded at all. There is undisputed testimony that the horn functioned properly and that it was sounded, and Plaintiff's expert's refusal to incorporate that testimony into his opinion was soundly criticized in the Order barring his testimony. This question is not up for reconsideration in this Order.
Plaintiff's claim is that the horn did not sound for the requisite "at least 15 but no more than 20 seconds
The same is true of the assertion that the horn was not sounded in the requisite "pattern" of two long blasts, one short blast and one long blast. Once again, the crew members' affidavits provide evidence that the horn was sounded in this pattern.
BNSF has produced evidence that the horn was sounded for the required length of time in the required pattern. Plaintiff has produced no evidence to the contrary. BNSF's motion for summary judgment as to this claim is GRANTED.
BNSF's final argument on summary judgment is that the proximate cause of Ms. Madden's death was that her car stalled on the railroad tracks and she failed to exit to a place of safety, and not any negligence on the part of the railroad. Proximate cause is ordinarily a question of fact for the jury, although where the facts are undisputed and only one reasonable inference can be made, courts can decide the question. Lockwood v. Bowman Const. Co., 101 F.3d 1231, 1235 (7th Cir. 1996).
It is indeed undisputed, as Plaintiff points out, that when Ms. Madden first entered the crossing, the active warning system was not activated. That point, however, is not responsive to Defendant's argument. Defendant's point is that, once the gates began to lower, the lights to flash and the bells to ring, all in compliance with regulations, Ms. Madden delayed in exiting her vehicle, and it was that delay rather than any negligent conduct on BNSF's part that resulted in her death. Plaintiff has conceded that 20 seconds would have been sufficient for Ms. Madden to have exited her vehicle and run (or even walked) to safety (see Response at p. 61-2). In light of the fact that the evidence shows she had more than that amount of time, any legal causation argument fails. There is no admissible evidence that Ms. Madden's tragic death was proximately caused by BNSF's conduct.
In Plaintiff's response to the motion for summary judgment, she asserts that tests on the warning systems were not done as required by federal requirements. Procedurally, the parties agreed and the Court ordered that amendments to the pleadings would be made before April 15, 2011, so this effort is untimely on its face. Substantively, the assertion that certain tests were not performed is based on nothing but speculation. Neither Plaintiffs lawyer nor her now-barred experts have any personal knowledge or documentary basis for this claim.
For the reasons stated herein, the Motion to Strike [# 69] is DENIED and the Motion for Summary Judgment [# 57] is GRANTED. The Clerk is directed to enter judgment in favor of the Defendant and against the Plaintiff. This case is terminated.
