Exclusion of Liability Expert Leads to Summary Judgment for Railroad

The Box Butte County District Court of Nebraska granted partial summary judgment in favor of the railroad on the plaintiff’s claim under the Federal Employers’ Liability Act after excluding plaintiff’s liability expert, Tyler Kress. Kress’s opinions were offered in support of the plaintiff’s claims that his many years of working as an engineer caused him to develop bilateral carpal and cubital tunnel syndrome. Kress generally opined that the plaintiff’s work exposed him to ergonomic risk factors consistent with his injuries, and plaintiff was not warned or trained regarding such risks. The railroad moved to exclude Kress’s opinions because they were not founded upon substantial data, lacked foundation, were not based on valid methodology, did not fit the facts of the case and would not assist the jury. In relying on other courts that similarly excluded Kress, the court found Kress failed to inspect plaintiff’s work environment and only relied upon his experience with other railroads in other locations. Kress failed to identify what in plaintiff’s work environment actually posed an ergonomic risk. The Court properly held Kress’s testimony did not meet the standard for admissibility of an expert, and he was excluded from testifying at trial.

Following the exclusion of the plaintiff’s liability expert, the Court granted summary judgment in favor of the railroad on the plaintiff’s FELA claim. Without Kress’s testimony, the plaintiff had no evidence that BNSF failed to meet its standard of care in providing the plaintiff with a reasonably safe place to work. Plaintiff’s argument describing the physical demands of his work was insufficient to show his workplace was unreasonably safe.

Mullanix v. BNSF Railway Company, Case No. CI 09-89 (Neb. Dist. Ct. Feb. 14, 2017).