                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 January 3, 2012
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                   Clerk of Court
                            FOR THE TENTH CIRCUIT


    DENNIS R. CORNWELL,
    individually and as Personal
    Representative of the Estate of Renia
    A. Cornwell, Deceased,
                                                         No. 10-5151
                Plaintiff-Appellant,         (D.C. No. 4:08-CV-00638-JHP-TLW)
                                                         (N.D. Okla.)
    v.

    UNION PACIFIC RAILROAD
    COMPANY, a foreign Corporation,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before TYMKOVICH, Circuit Judge, BRORBY, Senior Circuit Judge, and
EBEL, Circuit Judge.



         Renia A. Cornwell died at a railroad grade crossing when the vehicle she

was driving hit a locomotive owned and operated by Union Pacific Railroad

Company. Her husband, Dennis R. Cornwell, brought a wrongful death action


*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
against Union Pacific alleging negligent, reckless, and intentional wrongdoing in

the operation and maintenance of the locomotive’s horn as well as in the

construction and maintenance of the crossing. Union Pacific moved for summary

judgment and also moved to exclude the testimony of Mr. Cornwell’s four experts

based on the considerations expressed in Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579, 589-93 (1993). The district court granted

the summary judgment motion in part and ruled that the testimony of three

experts should be excluded. The case proceeded to a jury trial. At its conclusion,

the jury entered a verdict in favor of Union Pacific. Mr. Cornwell now appeals,

seeking to overturn the adverse pre-trial rulings. Exercising jurisdiction under

28 U.S.C. § 1291, we affirm.

                                         I.

      Mrs. Cornwell’s Chevrolet Blazer collided with Union Pacific’s locomotive

at 11:45 a.m. on a clear day in Vinita, Oklahoma. The investigating police officer

cited Mrs. Cornwell for failure to yield to the oncoming train, but the citation was

dismissed after her death. Many, but not all, witnesses to the incident heard the

locomotive’s horn sound before the collision. The train’s recording devices

provided contradictory information. The data-event recorder indicated that the

horn sounded, but the horn is not audible upon a review of the track-image

recorder.




                                        -2-
         At the time of the collision, the crossing had advanced-warning posts and

railroad-crossing crossbuck signs. There was also a signal box, a six-foot high

aluminum cabinet with electronic circuitry designed to operate lights and gates at

a railroad crossing. The signal box was to power and control the warning devices

that Union Pacific was installing. These lights and gates were completed and the

signal box was operational about a month after the accident.

                                             II.

         The initial issue in this appeal concerns the district court’s grant of

summary judgment on Mr. Cornwell’s claim that Union Pacific failed to keep the

crossing free of obstructions, as required by Oklahoma regulatory law. The

applicable regulation provides: “Railroads . . . are responsible for the reasonable

abatement at public crossings of . . . obstructions within or encroaching a sight

triangle. . . . Devices, signs or structures necessary for the operation of the

railroad . . . are not considered obstructions.” Okla. Admin. Code § 165:32-1-

11(b).

         Indisputably, the signal box was present in the sight triangle of the crossing

and it was not yet controlling any lights or gates. Union Pacific argued, however,

that the signal box was a device “necessary for the operation of the railroad” and

therefore not an obstruction. Mr. Cornwell maintained that because no lights and

gates were installed by the day of the accident, the signal box was not necessary

to the operation of the railroad. The district court agreed with Union Pacific’s

                                            -3-
position and entered summary judgment regarding claims related to liability for

failing to remove an obstruction. The court recognized, though, that evidence on

obstructions to Mrs. Cornwell’s view of the train would remain relevant to the

case.

        We review a district court’s grant of summary judgment de novo.

Trans Western Petroleum, Inc. v. U.S. Gypsum Co., 584 F.3d 988, 992 (10th Cir.

2009). Summary judgment is appropriate “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). The district court’s interpretation of the

Oklahoma regulation is likewise subject to de novo review. See Andersen v. Dir.,

Office Of Workers’ Comp. Programs, 455 F.3d 1102, 1103 (10th Cir. 2006).

        The district court correctly determined that the signal house fits within the

regulation’s exception for a device necessary for operation of the railroad. It

would be anomalous for a railroad to be subject to liability for the sequencing of

its construction of enhanced safety protections. And, as the district court pointed

out, it would be dangerous to install lights and gates first because the motoring

public would rely on equipment that was without a power source. We affirm the

district court’s entry of summary judgment on this issue.

                                          III.

        The summary judgment ruling did not dispose of all of Mr. Cornwell’s

claims. Remaining factual issues included (1) whether Union Pacific employees

                                           -4-
failed to sound the train’s horn for the minimum duration and decibel level

required by law and (2) whether Mrs. Cornwell’s view of the train was obstructed.

Before trial, Union Pacific filed motions to exclude the testimony of plantiff’s

experts under Federal Rule of Evidence 702 and Daubert, 509 U.S. 579.

      With regard to plaintiff’s general railroad expert, Alan W. Haley, Jr., the

district court held a hearing, considered Haley’s testimony and declarations,

evaluated the parties’ arguments, then issued an order excluding his evidence.

The court determined that Haley lacked qualifications to testify on the operation

of the locomotive, failed to apply reliable methods, frequently changed his

opinions, and based his testimony on insufficient data. The district court

therefore concluded that Haley had not met the requirements to testify as an

expert.

      Plaintiff designated three additional experts: an acoustical engineer,

Michael Keane; an accident reconstructionist, Robert Painter; and Painter’s

accompanying videographer, Bryan Schubert. The district court determined that

Keane’s testimony was admissible but not that of Painter and Schubert. The

district court first found that, in preparing their report and video, the two

trespassed on Union Pacific’s railroad tracks and adjoining right-of-way. Because

they did not request permission to enter the property for purposes of inspection

under Rule 34 of the Federal Rules of Civil Procedure, and perhaps put




                                          -5-
themselves and others in danger, the court ruled that the Painter’s opinion and

Schubert’s video should be excluded.

      Moreover, the district court reviewed the substance of Painter’s proposed

testimony under Daubert standards and found it deficient even though Painter was

generally qualified as an accident reconstructionist. First, Painter opined that the

signal box masked Mrs. Cornwell’s view of the light on the front of the

locomotive, thereby making it impossible for her to perceive the approaching

train. The accident, however, occurred during the daytime in clear weather, so

the train light would not have been her sole visual cue. And in Painter’s

proffered photographs, the lead engine is not visible behind the signal house, but

numerous other rail cars are. The court also found Painter’s remaining opinions

to be either unhelpful to the jury or based on speculation. The court therefore

determined that Painter’s opinions on Mrs. Cornwell’s view of the approaching

train were inadmissible.

      For like reasons, the district court excluded the report and testimony of

Schubert, the videographer. Specifically, the court noted that his photos and

video involved a dissimilar vehicle and a different locomotive. The district found

Schubert’s investigation flawed, his conclusions unreliable, and his work product

unhelpful.

      On appeal, Mr. Cornwell challenges the district court’s assessment of the

expert’s evidence. Under Daubert, a trial court “must determine at the outset,

                                         -6-
pursuant to Fed. R. Evid. 104(a), whether the expert is proposing to testify to (1)

scientific knowledge that (2) will assist the trier of fact to understand or

determine a fact in issue.” Hollander v. Sandoz Pharm. Corp., 289 F.3d 1193,

1203-04 (10th Cir. 2002) (brackets and internal quotation marks omitted). “[T]he

district court performs an important gatekeeping role in assessing scientific

evidence,” in order to “ensure[] that the proffered evidence is both reliable and

relevant.” Id. at 1204 (internal quotation marks omitted). To the district court’s

application of Daubert, we “afford substantial deference” and do not disturb its

decision without “a definite and firm conviction that the lower court made a clear

error of judgment or exceeded the bounds of permissible choice in the

circumstances.” Id. (internal quotation marks omitted). The trial court’s “exact

conclusions reached to exclude or admit expert testimony” are not the “concern[]”

of the appellate court. Frederick v. Swift Transp. Co., 616 F.3d 1074, 1082 (10th

Cir. 2010).

      Haley, the proposed railroad expert, provided numerous and mutable

opinions on the reliability of the track image recorder video, reasons why the horn

could not be detected on the recorder’s audio, theories on the disagreement of

witnesses about the sounding of the train horn, and the application of the

Oklahoma regulation to the placement of the signal box. Our review of the record

convinces us that the district court did not abuse its discretion in excluding




                                          -7-
Haley’s testimony because Haley lacked the proper background and his opinions

would not provide meaningful assistance to the jury.

      The primary purpose of Painter’s and Schubert’s evidence was to show that

the signal box blocked Mrs. Cornwell’s view of the oncoming train. To prepare

their visual aids and reports, they drove on the railroad’s right of way next to the

track to place cardboard markers at intervals and then took a video and

photographs designed to show the view of a motorist traveling in the same

direction as Mrs. Cornwell. They used a minivan rather than an SUV, placing the

camera where they calculated her eye level to have been. And based on

photographs produced by Union Pacific, they believed the locomotive in their

demonstrative video and photographs was substantially the same height and width

as the one involved in the accident. They also speculated on the tracking of

Mrs. Cornwell’s eyes as she approached the crossing.

      The district court determined that their proffered evidence was unreliable

under Daubert standards: their evidence was speculative and conclusory,

particularly in using a dissimilar vehicle and in assuming the movement of

Mrs. Cornwell’s eyes and her visual cues at the crossing. The court therefore

excluded Painter’s and Schubert’s evidence and testimony.

      The district court’s ruling is supported by Tenth Circuit precedent and case

law from other circuits. In United States v. Gabaldon, 389 F.3d 1090, 1099

(10th Cir. 2004), we affirmed the district court’s exclusion of expert testimony for

                                         -8-
lack of sufficient methodology and reasoning because the expert used published

material on a 1996 LeSabre, rather than testing his theory by the placing

defendant in an actual 1996 LeSabre and taking measurements. See also Dhillon

v. Crown Controls Corp., 269 F.3d 865, 870 (7th Cir. 2001) (holding expert

testimony based on tests performed on differently designed forklift truck with

different operator’s position did not suffice for purpose of allowing such

testimony); Oddi v. Ford Motor Co., 234 F.3d 136, 156 (3d Cir. 2000) (affirming

district court’s exclusion of expert hypotheses, in part, because expert was unable

to state if he studied the same kind of truck involved in the accident). Because

“any step that renders the analysis unreliable renders the expert’s testimony

inadmissible,” Att’y Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d 769, 780

(10th Cir. 2009) (internal quotation marks omitted), the district court’s Daubert

decision is not unreasonable and does not amount to an abuse of discretion. 1

      We do not reach any issues related to the trespass involved in obtaining the

visual evidence and reaching an expert opinion. Even if the district court abused

its discretion or otherwise erred in excluding Painter and Schubert for this reason,




1
      On appeal, Mr. Cornwell raises additional arguments concerning the district
court’s Daubert determination. For instance, he asserts that Haley is a
well-qualified expert and that Schubert is not an expert subject to a Daubert
analysis. None of these contentions lead us to conclude that the district court
abused its discretion.

                                         -9-
any mistake was harmless or nonprejudicial in that the court also considered

admissibility on Daubert grounds. 2

      The judgment of the district court is AFFIRMED. Appellant’s motion to

file a corrected substitute reply brief is GRANTED.



                                                   Entered for the Court



                                                   Wade Brorby
                                                   Senior Circuit Judge




2
       Union Pacific suggests other reasons for this court’s affirmance of the
district court’s decision, asserting that there are deficiencies in Mr. Cornwell’s
appellate practices. Because we have reached the merits of this appeal, we do not
address these arguments.

                                       -10-
