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7th Circuit Defense Summary Judgment Affirmed Where Experts' Relied Upon Amateurs' Reconstruction of Crossing Accident

Plaintiff's decedent was killed when her car was struck by defendant's train at a railroad crossing. Plaintiff contended the railroad crossing gates, warning lights and locomotive horn all were less than required under applicable federal safety regulations. Decedent's three grown children visited the accident scene some days after the occurrence and timed the interval between the horn of approaching locomotives was first heard and when the warning lights began flashing. Plaintiff's two expert witnesses relied upon the children's findings, which were inconsistent with each other, in venturing their opinions that the defendant was negligent. The trial court entered summary judgment for the railroad holding the findings of the amateur testers was an inadequate foundation under Daubert for the experts to base their opinions pursuant to Daubert.

The Seventh Circuit affirmed. An engineer's training and experience does not make him abler than a juror to evaluate the consistence of lay testimony. For an expert to offer such an evaluation is to wrap the lay witness in the expert's prestige and authority – "A disreputable tactic that the plaintiff's lawyer should not have countenanced." Nunez v. BNSF Railway Co., 730 F.3d 681 (7th Cir. 2013).

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