United States District Court, D. Minnesota
Daniel J. Anderson, Plaintiff,
Dakota, Minnesota & Eastern Railroad Corporation, Defendant.
MEMORANDUM AND ORDER
A. Magnuson United States District Court Judge.
matter is before the Court on Defendant's Motion to
Exclude Expert Testimony. As stated at the hearing, and for
the following reasons, the Motion is denied.
August 2012, Plaintiff Daniel Anderson was injured while
working for Defendant Dakota, Minnesota & Eastern
Railroad (“DM&E”). He was stepping down the
ladder on the outside of a railcar when he missed the last
step and fell off the car, injuring his ankle. After his
fall, two DM&E employees inspected the car and took
photographs of the ladder and the sill step, which is the
step below the last rung of the ladder. In two of these
photographs, the employees included tape measures to show the
distance between the sill step and the railcar, and the sill
step and the step above it.
hired Michael O'Brien, a “practicing railroad
safety consultant with 47 years of railroad industry
experience, ” to analyze these photographs. (Ferguson
Aff. Ex. B (O'Brien's Prelim. Report).) He concluded
that the tape measure showed a distance to the outside of the
sill step that was greater than that allowed by federal
safety regulations. He also used the photographs to opine
that the area between the step and the rail car (the
“clear depth”) was six inches, or two inches less
than the minimum depth federal regulations require.
O'Brien did not perform any inspection of his own, and
thus his opinion that DM&E violated the regulations is
based solely on these photographs.
opinion testimony from a qualified expert is admissible 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 of reliable principles and
(d) the expert has reliably applied the principles and
methods to the facts of the case.
Evid. 702. The Court's role is to act as a
“gatekeeper” to ensure that only relevant and
reliable expert testimony is admitted. Daubert v. Merrell
Dow Pharm., Inc., 509 U.S. 579, 589 (1993). To determine
reliability, the Court should examine (1) whether the theory
or technique can be and has been tested, (2) whether it has
been subjected to peer review and publication, (3) the known
rate of potential error, and (4) whether the theory or
technique has been generally accepted. Id. at
“the factual basis of an expert opinion goes to the
credibility of the testimony, not the admissibility, and it
is up to the opposing party to examine the factual basis for
the opinion in cross-examination.” Bonner v. ISP
Techs., Inc., 259 F.3d 924, 929 (8th Cir. 2001)
(citation and quotation omitted). The Court should exclude an
expert witness “[o]nly if the expert's opinion is
so fundamentally unsupported that it can offer no assistance
to the jury.” Id. at 929-30.
challenges O'Brien's use of the tape measure in the
photos to judge the actual distance of objects in the photo.
According to DM&E, O'Brien should have used
photogrammetry, which is a mathematical method of determining
three-dimensional geometric properties of objects and
features through the use of two-dimensional photographs, to
determine the true measured distance in the photos. Because