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April 26, 2004.

DEBRA DOWE, Independent Administrator of the Estate of Sheena Dowe, et al., Plaintiffs,

The opinion of the court was delivered by: MATHEW KENNELLY, District Judge


On March 15, 1999, an Amtrak passenger train collided with a truck at a railroad crossing at Bourbonnais, Illinois, resulting in the loss of many passengers' lives and injuries to a number of others. The plaintiffs in this case are some sixty persons who have sued Amtrak, which in turn has filed third party claims for contribution against several other persons and entities. An exemplar trial concerning the claims of several of the plaintiffs is set for May 3, 2004. In this Memorandum Opinion and Order, the Court rules on the parties' motions in limine. As the Court previously advised the parties, the rulings on these motions govern all of the claims pending before the Court, not just those particular claims that will be tried on May 3.

A. Amtrak's motions

  1. Expert testimony regarding "reasonableness," "prudence" and the standard of care

  Amtrak seeks to preclude plaintiffs' liability experts Richard Beall (a former railroad engineer) and William Berg (a consulting engineer) from testifying regarding the "reasonableness" or "prudence" of the conduct of Amtrak's engineer and perhaps others, and also from characterizing the duty of care owed by Amtrak to the plaintiffs. An expert cannot testify about legal issues on which the court will instruct the jury. E.g., United States v. Sinclair, 74 F.3d 737, 757 n.1 (7th Cir. 1996). For this reason, it would be improper for Beall or Berg to characterize Amtrak's duty of care, as Beall did in his report, as "the highest duty of care."

  Plaintiffs' experts may, however, identify the standard of care upon which their opinions are based, subject to the Court's control if they state this erroneously or inadequately. The Court also rejects Amtrak's argument that the witnesses should be barred from identifying certain actions as unreasonable or imprudent. Under Federal Rule of Evidence 704(a), "testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact" (with certain exceptions not applicable in this case). Though a bare conclusion that particular conduct is "reasonable" or "unreasonable" likely would not be particularly helpful to the jury, and thus potentially inadmissible under Federal Rule of Evidence 702, based on the written reports of plaintiffs' experts the Court has no reason to believe that counsel intends to elicit bare conclusions. With explanation, testimony regarding the reasonableness or unreasonableness of particular conduct will assist the jury in understanding the evidence and determining facts in issue, and will not simply "tell the jury what result to reach." See Fed.R.Evid. 704, Advisory Comm. Notes. Moreover, an instruction to the jury that it is not required to accept an opinion witness's conclusions — part of the standard instructions this Court routinely gives — will suffice to eliminate any potential unfair prejudice to the opposing party. Finally, unlike in Isom v. Howmedica, Inc., No. 00 C 5872, 2002 WL 1052030 (N.D. Ill. May 22, 2002), a case in which this Court precluded expert testimony on various points, there is no indication that the plaintiffs' experts intend to opine regarding Amtrak's state of mind, or that the experts have nothing to contribute on the issue in question that goes beyond the knowledge possessed by an ordinary juror. Accord, United States v. Barile, 298 F.3d 749, 761 (4th Cir. 2002) (trial court erred in precluding expert from testifying that submissions to government agency were "not unreasonable").

  2. Preemption of claims concerning training and operating standards

  The Federal Railroad Safety Act of 1970, 45 U.S.C. § 421-457, was enacted "to promote safety in all areas of railroad operations and to reduce railroad-related accidents, and to reduce deaths and injuries to persons. . . ." Id. § 421. To this end, the FRSA empowers the Secretary of Transportation to prescribe appropriate rules, regulations and standards for all areas of railroad safety. Id. § 431(a). States are permitted to adopt or continue in force their own standards relating to railroad safety "until such time as the Secretary [of Transportation] has adopted a rule, regulation, order, or standard covering the subject matter of such State requirement." Id. § 434(a). In addition, a State may adopt a safety requirement more stringent than an established federal standard "when necessary to eliminate or reduce an essentially local safety hazard," if the State's requirement is "not incompatible with" federal regulations and is not an undue burden on interstate commerce. Id. See generally CSX Transportation, Inc. v. Easterwood, 507 U.S. 658 (1993).

  Amtrak seeks to preclude the plaintiffs from presenting evidence or argument that Amtrak's engineer was inadequately trained or instructed. Among other things, plaintiffs' expert Beall proposes to offer opinion testimony that "Amtrak failed to properly train and provide appropriate and safe procedures to its engineers . . . as to what options should be taken" if an obstruction appears on a crossing of the railroad tracks in front of the engineer. Beall Report, pp. 3-4. The parties appear to agree that Beall's opinion is premised on a purported duty of care arising from state law. Amtrak argues that because the Federal Railway Administration (part of the Department of Transportation) has established regulations regarding the qualification and certification of locomotive engineers, any state law-based standard is preempted.

  The plaintiffs ask the Court to reject Amtrak's argument summarily because it amounts to an untimely motion for summary judgment. The Court disagrees. A motion in limine is, generally speaking, an appropriate mechanism for determining the proper scope of evidence and argument at trial. We have no indication that a ruling favorable to Amtrak would be dispositive of the plaintiffs' claim, and in any event expert discovery in this case largely came after the deadline for filing dispositive motions.

  The plaintiffs do not contend that purported state-law duty of care on which they rely is permissible under § 434(a)'s exception for standards "necessary to eliminate or reduce an essentially local safety hazard"; rather they argue that the FRA has not adopted regulations "covering the subject matter" of the state-law duty. In determining whether a federal standard regarding railroad safety preempts state law, it is not enough that the federal regulation "touch upon" or "relate to" the same subject matter as the state law standard; preemption exists "only if the federal regulations substantially subsume the subject matter of the relevant state law." Easterwood, 507 U.S. at 664-65. To make this determination, the Court must examine not just the particular federal regulation at issue, but also "related safety regulations" and "the context of the overall structure of the regulations." Id. at 674.

  A state can "fill gaps where the Secretary [of Transportation] has not yet regulated." Burlington Northern & Santa Fe Ry. v. Doyle, 186 F.3d 790, 795 (7th Cir. 1999). The "important thing" for purposes of determining preemption "is that the FRA considered a subject matter and made a decision regarding it." Id. The "subject matter" of the state requirement for purposes of § 434(a) is "the safety concerns that the state law addresses." Id. at 796. "[D]etermining the safety concerns that a state or federal requirement is aimed at will necessarily involve some level of generalization that requires backing away somewhat from the specific provisions at issue. . . . Otherwise a state law could be preempted only if there were an identical federal regulation, and . . . Easterwood teaches that this is not so." Id. (citing Easterwood, 507 U.S. at 674). But "with too much generalizing — `public safety' or `rail safety' — our analysis would be meaningless because all FRA regulations cover those concerns." Id.

  In Doyle, the Seventh Circuit held that a Wisconsin statute that required trains to be operated by at least one person who had been certified under federal regulation as a train service engineer, locomotive servicing engineer, or student engineer, plus one person who had successfully completed a railroad carrier's training program and passed an examination on its operating rules, was preempted. The court noted that FRA regulations established detailed requirements for the qualification of engineers and thus covered the same subject matter as Wisconsin's requirements — ensuring that a train or locomotive crew can operate a train safely. It therefore held that Wisconsin's certification requirements were preempted. Id. at 796-97. The court reached the same conclusion regarding the two-person crew requirement, as applied to certain types of railroad operations that the FRA was shown to have considered. Id. at 797-802. It found, however, that the two-person crew requirement was not preempted as to over-the-road operations, as there was no indication that the FRA had ever considered that issue (except to the extent that the FRA had specifically agreed with the Wisconsin Central Railroad that it could use one-person crews for over-the-road operations). Id. at 802-04.

  In the present case, the plaintiffs contend that Amtrak failed to establish a procedure for what locomotive engineers should do if and when they see an obstruction on the tracks ahead of them, and failed to train its engineers in the appropriate procedures for that situation. As noted earlier, the parties appear to agree that such requirements exist, if at all, only by virtue of state common law. The regulations cited by Amtrak as preemptive of state law are Parts 217, 218, and 240 of Title 49 of the Code of Federal Regulations. Part 217 requires railroads to establish operating rules and file them with the FRA, as well as to instruct its employees on those rules and test them for compliance; however, it does not prescribe any particular operating rules. Part 218 includes certain "minimum requirements" for railroad operating rules, while permitting railroads to adopt additional or more stringent requirements. 49 C.F.R. § 218.1. The minimum requirements established by Part 218 include rules for the protection of railroad employees engaged in the inspection, testing, repair, and servicing of the railroad's rolling equipment, see 49 C.F.R. § 218.21; requirements for the protection of employees operating rolling equipment, see id. § 218.31; prohibitions against tampering with safety devices on trains, see id. § 218.51; and requirements for the protection of "camp cars" that house railroad employees, see id. 218.71. Part 218 does not indicate, however, any attempt to regulate or promulgate standards for the manner in which locomotives are operated while in service.

  Finally, Part 240 establishes requirements for the qualification and certification of locomotive engineers. These include a requirement that a railroad have a certification program for locomotive engineers that complies with the requirements of "Appendix B" to Part 240 — which we will discuss in more detail shortly — and that includes specifics regarding how a person's prior conduct as a motor vehicle driver, failures to comply with railroad rules, and history of substance abuse should be considered; criteria for vision and hearing acuity; requirements for continuing education; and a requirement that a railroad have various procedures for examining and monitoring an engineer's performance skills and application of the railroad's rules for safe operation. Railroads are also required to provide for continuing education "to ensure that each engineer maintains the necessary knowledge, skill and ability concerning personal safety, operating rules and practices, mechanical condition of equipment, methods of safe train handling . . ., and relevant Federal safety rules." 49 C.F.R. § 240.123(b).

  Appendix B to Part 240 establishes the procedures for FRA approval of a railroad's program to train, test, and evaluate persons seeking certification or recertification as locomotive engineers. It requires the railroad's submission to be organized in seven separate sections. The first section is to include basic information about the railroad and a statement as to whether it has accepted responsibility for educating previously untrained persons to qualify, or instead will recertify only those previously certified by other railroads. Section two of the railroad's submission is to include information regarding its procedures for selecting persons to evaluate engineer certification candidates. The railroad has "latitude to select the criteria and evaluation methodology" for supervisory personnel but is required to describe to the FRA how it intends to use that latitude. App. B, § 2. The third section of the railroad's submission to the FRA is to contain information concerning the railroad's program for training previously certified engineers. Again, the railroad has "latitude to select the specific subject matter to be covered" and the like, but it must describe to the FRA how it intends to use that latitude "to assure that its engineers remain knowledgeable concerning the safe discharge of their train operation responsibilities" so as to comply with the above-described performance standard set forth in § 240.123(b). Id., § 3. The fourth section of the railroad's submission to the FRA is to cover the railroad's program for testing and evaluating previously certified engineers. This portion of Appendix B includes a similar statement regarding the "latitude" given to railroads but also provides that the railroad's evaluation procedures must examine a person's skills in applying the railroad's rules and practices for safe operation in the areas of operating and inspecting equipment, train handling, and compliance with federal safety rules. Id., § 4. The fifth section of the railroad's submission is to cover its procedures for conducting initial training of persons not previously certified; this section, too, includes a similar statement regarding the "latitude" given to the railroad. Section six of the submission to the FRA is to include information about the railroad's program for monitoring certified engineers, and section seven is to provide a summary of how the railroad's program will implement regulations concerning routine administration of its certification program. Id., §§ 5-6.

  The concluding section of Appendix B relates that the FRA had "initially proposed specifying the details for most aspects of the programs being submitted," including "a distillation of the essential elements of pre-existing training, testing, evaluating, and monitoring programs" and "very specific details for each aspect of the program." But after receiving adverse comments from railroads, the FRA was persuaded to "give[] railroads discretion to select the design of their individual programs within a specified context for each element." Id., § "FRA Review." The FRA's review of a particular railroad's submission is thus "focused on determining the validity of the reasoning relied on by a railroad for selecting its alternative ...

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