Tenth Circuit Affirms FELA Summary Judgment and Exclusion of Alan Blackwell for BNSF

On December 27, 2018, the Tenth Circuit issued a published opinion which affirmed the district court’s orders excluding Plaintiff’s expert witness and granting summary judgment in favor of BNSF Railway.

In rejecting the expert testimony of Alan Blackwell, the district court found that Plaintiff’s expert, Alan Blackwell, had no reliable basis for the conclusions he drew. Although Blackwell cited numerous safety standards, he made “little to no effort to relate the various [safety standards] to [his] conclusions.” Rather than employing a sound methodology, the court found that Mr. Blackwell’s opinions “simply ignore inconvenient facts,” and failed to identify or defend any sort of methodology. In summary, the court stated:

It is not enough to have a knowledgeable expert leap to the conclusions a party would like the jury to be exposed to. Rather, there must be a reliable and identifiable basis for the expert’s opinions, grounded in the evidence and in the practices and standards of the particular discipline involved.

After rejecting Mr. Blackwell’s opinions, the district court granted summary judgment holding there was no issue of genuine fact for a jury.

The Tenth Circuit Court of Appeals unanimously affirmed the exclusion of Mr. Blackwell and agreed that Schulenberg failed to identify a methodology that supported Mr. Blackwell’s opinions. Because Mr. Blackwell was not allowed to give his opinions, the Circuit Court held that the jury would have no evidence upon which to infer negligence except from speculation. This being insufficient for a jury, the Court held the summary judgment was proper. Schulenberg v. BNSF Ry. Co., ____ F.3d ____, No. 18-6003, 2018 U.S. App. LEXIS 36546, 2018 WL 6802110 (10th Cir. Dec. 27, 2018).