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Tanya Nunez, Administrator of Estate of Cynthia L. Madden, Deceased v. Bnsf Railway Company

July 13, 2012


The opinion of the court was delivered by: John A. Gorman United States Magistrate Judge

E-FILED Friday, 13 July, 2012 02:32:41 PM

Clerk, U.S. District Court, ILCD


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 motions to bar Plaintiff's two expert witnesses, James Sottile (#58) and Paul Bodnar (#56). The motions are fully briefed. As explained below, both motions are GRANTED.


On the night of May 28, 2007, Cynthia Madden appeared to be having car trouble. Her car stalled several times, the last time at the point on Cleveland Road where it intersects with railroad tracks in Colona, Illinois. As Ms. Madden tried to re-start her car, two motorists in the area saw the crossing gates came down and the warning lights begin to flash. One of them heard a train horn blowing. Both of them observed that Ms. Madden did not immediately get out of her car. It was not until the train was visible to those at the crossing that Ms. Madden fled her car. She was too late. The train hit her car, which in turn struck her. She did not survive.

The train was a BNSF train. The engineer and conductor on board both recall that the train's headlights were on and that horn was sounded for more than 20 seconds before it entered the intersection. Both stated that the train, as it approached the intersection, was traveling under the allowable speed of 30 m.p.h. The conductor recalls seeing the closed gates and flashing lights at the intersection. They agree that, as Ms. Madden's car came into view, the train was immediately thrown into emergency mode, but it was not possible to stop the train in time.

The Cleveland Road crossing is protected by what is referred to as an "active warning system," meaning that as a train approaches the crossing, warning lights start flashing, gates automatically lower, and pedestrian bells ring. This system is triggered by circuits placed in the tracks that sense a train's approach. When a train is sensed, the system performs a rapid calculation, based on the train's speed and the distance to the intersection, that triggers the active warning system.

This warning system produces data (such as the train's speed and activation of the active warning system) that is transmitted to an event recorder.*fn1 There are two parts to this event recorder: the HXP-3, which operates the warning system and produces the data, and the HCR, which records the data and allows it to be downloaded to a computer and printed. When the event recorder is installed, there are various "options" that must be selected. In addition, the installer may select "daylight savings time" as an option. In the system at the Cleveland Road crossing, that option had not been selected, meaning that the recorded data did not reflect daylight savings time.

There is a second event recorder as well, this one found in the locomotive itself. This event recorder continuously records data specific to operation of the locomotive, including such data as speed, direction, and time. The specific locomotive on this train was BNSF 4708, which was manufactured in 1997.

About 2 hours after the accident, BNSF personnel downloaded the event recorder at the crossing. The morning after the accident, BNSF personnel downloaded the locomotive's event recorder. Plaintiff was provided with a copy of these downloads. In addition, BNSF tested the lights, horn and brakes on the locomotive. The original test results were no longer available by the time this litigation began. Federal regulations only require that the test results themselves be kept until the next test is conducted, but "in no case for less than one year from the date of the test." 49 C.F.R. §234.273. The Plaintiff was provided with a summary of the tests that BNSF conducted. This summary showed that no problems were found on the test conducted immediately after the accident.

Several days after the accident, Ms. Madden's children went to the scene to retrieve her personal belongings. While they were there, they heard a train horn and, using a cell phone and two wrist watches, they timed the arrival of the train at the crossing. One of the children testified that the arrival of the train at the crossing was 13-14 seconds and that the "lights came on two or three seconds before the train went through."

It was not until October 28, 2011, that Plaintiff retained 2 expert witnesses, Paul Bodnar and James Sottile. One or both of these experts, along with counsel for the parties and a BNSF representative, visited the Cleveland Road crossing site in November. In addition to viewing the physical layout of the scene of the accident, BNSF opened the "bungalow" that contains the HCR portion of the event recorder for the tracks. Contained within that "bungalow" was a document reflecting the most recent 2011 test of the warning system. The expert obtained a photograph of that document.

The two experts authored a joint report containing five opinions. Paul Bodnar's sole opinion is that BNSF was negligent because the train did not sound its horn prior to entering the intersection. James Sottile expresses four opinions: (1) that the times on the data downloaded from the recorder are inaccurate; (2) that the active warning system gave only 13-14 seconds of warning, less than the 20 seconds required by 40 CFR § 234.225; (3) that the crossing signal system appliance test records provided by BNSF do not meet federal requirements [49 C.F.R. 234.273]; and (4) because the signal event recorder data fails to comply with federal regulations, the records are insufficient to determine the speed, horn and active warning systems at the time of the accident. Their joint Report was served on the Defendant, which has now moved to bar their testimony in full. A hearing on the motions was held on June 12, 2012.


In order to fully comprehend the motions attacking the expert's Report, it is necessary to review the procedural and discovery history in this case. This lawsuit was filed on May 22, 2009. The Rule 16 scheduling conference was held on September 23, 2009. The parties' plan was approved. That plan called for Plaintiff to disclose expert witnesses by January 15, 2011, for Defendant to disclose expert witnesses by April 16, 2011, and for all discovery, fact and expert, to close on May 20, 2011. The Court was not involved in the case again until the Plaintiff moved for an extension of the schedule. Following a conference on February 17, 2011, the schedule was extended. The new schedule closed all discovery - fact and expert - on December 16, 2011.

On November 9, 2011, Plaintiff made the request (or, as Defendant characterized it, the demand) that Plaintiff's expert be allowed to conduct an inspection of the accident scene. Defense counsel agreed, but only with Plaintiff's counsel's representation that the expert's report would be provided before Thanksgiving and the deposition taken before Christmas.

On November 17, 2011, a month before the conclusion of all discovery, the chambers of the undersigned was contacted by counsel for BNSF, who orally requested a hearing. At that time, the parties' attorneys were present at the scene with Plaintiff's expert and a representative from BNSF. The expert had asked BNSF to open the "bungalow" in which the HCR event recorder is stored, a request to which BNSF objected as beyond what had been agreed to. A hearing was held, and the Court directed that the bungalow be opened for inspection and photography by the expert.

At 6:43 p.m. on December 16, 2011, the final day of discovery, Plaintiff served her experts' Report. On December 19, 2011, Defendant filed a motion to bar Plaintiff's experts on the grounds of untimeliness. On December 21, Defendant filed a supplement to that motion, stating that the expert had served a "revised" report on December 19 at 8:58 p.m. In response, Plaintiff attempted to justify its late production of the expert's report by pointing to what she characterized as BNSF's own delays in producing documents, its refusals to produce documents, and deficiencies in the documents that BNSF had produced. For good measure, Plaintiff included substantive arguments about the merits of the case.

In an Order entered on January 24, 2012, the Court entirely rejected Plaintiff's arguments, pointing out first that any disputes about the sufficiency of document production should have been brought to the Court's attention during discovery; by waiting until after discovery closed, any problems were waived. The Court found "puzzling" Plaintiff's lack of diligence in alerting the Court to any such deficiencies, because Plaintiff's explanation for taking no depositions of BNSF personnel during the course of discovery was her counsel's belief that the case could be proved with only documents and experts.

After serious consideration being given to barring the experts for failure to timely disclose them and their Report, the Court decided that, in the interests of justice, the motion to bar should be denied. Instead, a new schedule was implemented, which allowed BNSF 7 days to review its production of documents to ensure that it had been complete, and allowed Plaintiff's experts 7 days thereafter to revise their Report if BNSF produced any additional documents. The Order cautioned, in bold, capital letters, that "NO EXTENSIONS OF THESE DEADLINES will be allowed without a detailed and substantial showing of good faith and due diligence."

BNSF produced no additional documents. Despite the strong cautionary language of the Order, on February 2 Plaintiff filed a motion to compel discovery. In that letter, counsel stated that he had been unavailable to work on this case until after January 30*fn2 . On January 31, he reviewed the discovery he had previously requested and served a supplemental request for what he believed was missing. BNSF counsel responded that no additional documents would be provided. Hence, the motion to compel.

As was pointed out in Defendant's response to this motion, Plaintiff's argument was based on two misconceptions. The first was that a defendant must, in its Rule 26(a) disclosures and supplements, provide documents that support the plaintiff's claim. That is not what the Rule requires. It requires a party to disclose information that will support "its" claims or defenses. Then, ...

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