trial court erred in precluding in pacific's expert witness hans you want from testifying as to his ultimate opinions on causation there are a number of other issues on appeal i'm going to focus on those court has questions about the other issues i will try to get them but if there's a factual question question about the preemption issues on cross appeal with a directed verdict issue on cross appeal i'm happy to entertain questions at any point in time and i would submit your as a result of that union pacific was deprived of having a dirt jury weigh the respective opinions of the experts evaluate those opinions and reach a determination in doing so the trial court didn't follow a lot of precedent out of this court and we'll talk a little bit about the present president later has four cases i'm going to want to review the court with the court as a result we're going to request that the trial this court trial were you it's a fascinating case in terms of all the diagrams of the of the fund to go to that railroad repair shop how many tons of pressure does it take to push those wheels on as axles my recollection is somewhere around fifty thousand pounds but it's been a while since i've address that issue it's irrelevant but it's fascinating what was the fact that you were trying to establish that the actual fail because real progress did not remove the pre existing corrosion pits during their turning process or just to help the court the process is such that road parts are reused in the reused on a regular basis reuse those axle so many times well the reason why is  is a resilient thing and the issue is this is not steel of such a diameter and such a smooth glass that it can undergo the pounds per square inch pressure that's applied while it's in operation and sorry but it's either two hundred eighty six more axles each one would carry seventy one thousand five hundred pounds if the equalization was working that is correct that is correct and so what happens is after they found out that the going from two hundred sixty three to two hundred eighty six has resulted in shops and there's not a big laysan turned out well that's not necessarily the entire process the first process is there's some dirt and grime on there that normally needs to be washed off and cleaned off and then what you're allowed to do is you're allowed to take a sander that has eighty grit or finer san paper and then you clean that area to remove it and then you send it i can't remember the exact line but then it's examined to make sure that's been cleaned it is also a magnet magnetic particle examination to make sure it's been cleaned if the cleaning is not sufficient then sometimes the wheel shops will take a lave and clean not fill it area to peel back the steel so that's nice and smooth so with that being said the court precluded mystery one from offering his alternate opinion that progress rails failure to properly perform that service caused the actuals to fail and her reason for this allowing his testimony was that he admitted that he could not there's a couple of points in it from the from the record i want to point to number one the trial court's ruling first and foremost in its written order the trial court basically indicated that mystery one would not be allowed to offer an opinion as to the ultimate issue of causation he would not be able to opportunity to get to the court and talk to the court and the court kind of indicated we can talk about it again at trial and so he won testified at length about what he went and did and during the course of the trial it came up again as to what are his opinion should be admitted interest in discussing that issue to trial court state as follows and i quote verbatim i believe that mr anyone was certainly expressed legitimate opinions regarding the fact that stress fractures on those journals caused the journals to break and that the breaking of the journals led to the drownings she went on to state and i believe he has offered legitimate opinions that certain pits and cracks in the journal still area were present at the time progress rail refurbish the axles and he has expressed opinions that pits and cracks can cause journals to fracture and this is the last sentence i want to focus the court to and he has expressed opinions that other causes are not present on numerous times and i would point the court first to the case that was decided by this summer by the court which was not cited many of the briefs because it was just decided in june and that's johnson versus mead which is seven fifty four f thirty five fifty seven tying the two together and precluded from testifying on that issue here we know the same thing we know pits cause cracks we know that he won ruled out other possible causes why can't he put the two together and say that court that you can give the element pollution that still at the discretion of the trial court sure but why should the defendant's expert be able to give ultimate opinions in the plaintiff's not at all gay or will come to that how how did that mean you're a you're you're making a great argument here you can do the same thing to the jury and just say it couldn't be anything else because the jury number one doesn't get to hear it from the experts and that's important number two and more importantly look at the closing argument all we heard repeatedly was they haven't told you what caused these actions to fail they can't tell you what caused these a experts who follow the same methodology one said based upon the evidence you cannot tell who was driving the other one said i believe it was a or b that was driving same methodology one was allowed to say no conclusion one wasn't allowed to testify at all this court said that that's reason to reverse a remand and retry it because both parties should be on forty to have an opportunity to hear their experts reach those conclusions and again and had been permitted to testify  and why he was not allowed to testify if you look at the trial court's order all it does is say i don't think he's got sufficient methodology there's no explanation as to what the the flaw in the methodology is and then a trial the judge says well he certainly followed sufficient methodology to rule out other causes i don't i don't understand the logic between those two if he's got sufficient methodology to rule out other causes he should be able to testify as to what the cause was not to mention the fact that this  repeated occasions and experts not required to rule out all of the causes and actually recently required to rule out have a good methodology of ordering a program of progress rails brief  his attempt to league ruling to fatigue cracks because of preconditioning corrosion pitt was entirely speculative and not really based on reliable methodology did the district court say that he his methodology was lacking or there was a conclusory statement but then i point to a point you to the statement of the court made where he said he ruled out all other causes well if that's good methodology how's how how did those two fit together they don't  it ruled out everything differential exactly and if you look at if you compared the work that was done by brown versus even on he wanted substantially more work with respect to formulating his opinions brown comes in on august second and third two thousand and twelve looks at a parts of the axle performs a finite element analysis based upon guess and conjecture he offers is ultimately opinions iwan follows the same exact method ology he reviews the metals examines the metals as dr brown says the metals tell the metals tell a story ok so that's what the methodology is you look at the metal you examine the melon you evaluate the metal and you make a decision maybe that's and that's a different discussion and now i'm getting back in the marital time but to answer your question i would submit there's a difference there's a substantial difference what you wanted vs what brown did he want was there from the beginning i mean martin but he riser which caused the axle to fail and i may have flipped them but those are the two conclusions that he reached and that was what was argued in closing by counsel if you have other questions i do want to be able to come back up here and visit with you again after mr coyle speaks court good morning my name is michael and i represent progress real in the case that we tried to a jury for a couple weeks last summer in oman from judge smith camp i want to answer some of the questions that you've asked here judge woman as well as you judge riley but a couple of important facts railroad axles are like wheels under roller coasters the entire axle spins inside of a bearing so if you see a roller coaster car it's the same principle with the train now two things there's there's three really important facts here that the court needs to know about first of all the actual from de witt was twenty years old the axle that failed it martin bay was thirty eight years old the testimony was undisputed a trial that these actions were forged in design for two hundred sixty three thousand pounds somewhere in the one nine hundred ninety s the f r a in the a r got together and they rated m for two hundred eighty six thousand pounds and that's per car so that means on one hundred twenty five train coal car you're hauling another five or six tons of coal in each car that's why they did it now when you talk about reconditioning a wheel set what happens is  entire wheel an axle spins in your correct judge warman it's pressed on with twenty five tons the wheel is as well as the berry these axles will come in for reconditioning for a variety of reasons for example some companies will say we're going to pull every wheel set off after five years sometimes the bearings get hot they burn up and then they got to be pulled off sometimes the train will drag a car they'll try to release the brakes the brakes don't get released and when they drag a car it's called a run flat it will actually create a flat surface on the wheel so when you hear a train come by that's going bang bang bang bang bang that means that it's got to run flat on the going to pull that off now when they pull him off sometimes i'll just pull off the bearing if there's enough tread left on the wheel they'll just return the wheel but they always pull off the bearing sometimes they pull off the the bearing and the wheel and they'll put a new wheel on it but when the axles in the shop what they'll do is they'll inspect it to see if there's any imperfections or doing as or gouges because those can be stressed risers and then they'll fix them and want to two ways they'll either put them on a lathe and take the imperfections out of them which they did in one of these cases or if they leave the wheel on then they'll use a special grinder in the clean him up now here's a fact that their expert couldn't get around corrosion pitting arises on a on an axle in a matter of weeks because the problem that that mystery one had at the trial and that they couldn't get around is that one of these axles had been in the field for five months and the other one had been in the field for fifteen months at the time that these trains darrelle so one of the things we asked the union pacific or request for admission how long does it take for corrosion pitting to develop on an axle it's weeks now i think that an easy example of that if you if you take your  and you're working in your backyard and leave it out there for a week and you find it the following week and it's rained a couple days you can see what happens to the mel metal starts to corrode immediately in when these will sets leave these facilities it's raw metal and everybody knows what a train card as it goes through sleet it goes through snow it's in a corrosive environment on the coasts but here's the problem corrosion pitting can develop in weeks and that's the problem  that grew it developed in the five months or in the fifteen months it was out in the field now what judge smith did and i will respectfully suggest your honor that this needs to be used it analyzed as an abuse of discretion she she ruled on his admissible testimony we took history once deposition twice he appeared as a thirty six witness i deposed him for the full time then they produced him as an expert and i'd opposed him again now there their position and here's where she limited him in the axle when they left progress rails plant after it was refurbished cause the axles to fail only thing that she eliminated now here's the basis for mr he wants testimony number one progress rail failed to remove the pits when reconditioned either five or fifteen months before that around number two corrosion pits caused the axles to fail number three the corrosion pits that caused the axles to fail were the ones that existed on the axles when they were reconditioned rather than ones that formed on the axles after they left progress rails facility to judge woman i want to answer the that corrosion pits are inherently difficult if not impossible to predict number three mr and did not attempt to determine whether any of the corrosion pits developed on the axles after progress real recondition them ability to do that he had no methodology or ability to determine the age of a particular corrosion pit he further testified that he did not do any type of testing or follow any protocol to determine how old the corrosion pits were and he had no ability to do so he told me that the only methodology that would enable him to determine the age of the corrosion pits could not be used for either the the doraemon and to win iowa or martin bay nebraska because  merely his visual inspection of the severity or depth of the corrosion pits but he took no measurements he didn't he did he took no measurements of the severely or the depth of the corrosion pits and he told me that there is no scientific basis for linking the size or depths of corrosion pits to the age of the corrosion pits he also told me that there are no studies that would enable a scientist to determine whether a corrosion period is not five months or fifteen months old and that there are no studies analyzing how long it takes these things to form they after reconditioning now we sent a request for admission how long does it take to develop corrosion pits they told us  takes weeks so these things are out there for five months or fifteen months now i want to go back and ask your question judge one what what you had smith could have got hung up on was the methodology she said there's absolutely no way that this expert can come in and link these to these pits now dr brown sin and this is the problem that the railroad had a trial the problem is is that in order for anyone's theory to make any sense is that he had to he had to somehow connect corrosion pitting with how these axles failed and he was unable to do that because in order to hang this on progress rail they had to say hey you didn't clean smith camp came back and said there's no valid methodology for him to tie these two things together now dr stuart brown and answer your question is he used an entirely different methodology to express his opinions to the jury he wasn't anchored are burdened with the problem of trying to connect him to the corrosion pits no dobber motion was filed on dr brown i don't know why but when we got to trial i put him on the witness stand and he did an entirely different methodology now i'm going to start with de witt he said ok if there's a theory that a corrosion pit caused this axle to fracture then i'm going to examine it under electron microscope and i'm going to see if any point of the fracture site is connected to a corrosion pit he turned around looked at the journey said no i couldn't find one because what happens is yeah you're correct your honor this is fascinating because everything's reused at the railroad but these axles are there forty years old and if you haven't seen a coal train go by there's no rest for the coal train they're running twenty four hours a day seven days a week and they're really taking a pounding the other issue is that they've put another eleven tons in these cars so every time they recondition on they might lay them or grind them a little so the  always fit the way they did when they were brand new so the bearings create something called fretting and freddy in is it causes marks on the actual because they can't find their ears to fit the size of the turndown a  the bearings does that have anything to do with this case well what he did is he offered his explanation based upon physical evidence and electron micron photographs of what he thought because it was undisputed that it was high cycle fatigue and i want to go back to this whole thing about differential diagnosis all of the experts agree that the axles fail because of high cycle fatigue that's a code word for they just wore out now he says that they eliminated train handling and track conditions and in perfections in the metal but there is multiple ways you can have high cycle fatigue he didn't eliminate any of those like work well for example i'm not i'm not a mechanical engineer but we just talked about for example freddy that's what dr brown talked about that's a completely different methodology so mystery one didn't eliminate anything this wasn't a differential diagnosis he came up with three or four things and claims he ruled them out but they didn't rule out all the different methodologies of how you could have high cycle fatigue so that the can i will suggest to you your honor that the difference between dr brown and mr he want is this a completely different methodology supported by physical evidence that i laid foundation for at the trial there was no doubt and i you know i hate to do this because i'm a trial lawyer too but there was no objection to any of this in the record i mean his yesterday make some objections early on at some side bars but i was able to listen all of the opinions from dr brown without  a long trial and i think the standard is abuse of discretion and i'm telling you judge smith camp worked long and hard on this it was the subject of extensive briefing in pretrial motions and at least twelve hours of testimony from mr he won and what she did not allow him to testify you know judge riley is just that easy bit and what she said it's right on the record i think there's enough here mr waller to let th jury connect the dots but there's not enough from his methodology to say it was caused by the corrosion pity so what i'd ask you to do is since the abuse of discretion is such a hard standard for the railroad i just ask you to affirm it and everything about the trial now if you've got heartburn about judge dr brown i don't think you will then the case never should've gone to the jury because  one was never able to express an opinion on proximate cause i don't think how an actual fails under a coal train car is something within the common ordinary knowledge of twelve people in omaha nebraska i think you may have gotten far now because what making is that if they get past this and in all due respect i think under an abuse of discretion standard that they just can't because i think there's a sound basis for ruling now i just want to mention our cross people and i'm going to take the last ten seconds to do it i don't think you'll get to it if you affirm what the jury did norma last summer but i would suggest to you and and judge riley can i just complete the statement sit down if you can go quickly all right if the federal railroad administration wanted extend the obligation for rail car safety to third parties beyond the railroad who's the only person identified in the code of federal regulations they know how to do it and we cited probably twenty some examples in our in our brief and we believe i don't know if you'll get to this issue because of the abuse of discretion standard of what happened in the trial court but i think that this claim is preempted and it should not have gone past the motion to  failure to remove a pit increases the pounds per square inch by nine point four two times ok number two the request for admission how long does it take pits to form we objected to that it was over ruled all it said was how does it how long is it and mr deny that pits can occur within weeks well depending upon the circumstances and what was done or not done that's true and under the rules you have to respond to not correct if you look in the records he talks about striking actions and rounding of pits ok what does that tell you normally a pit is jagged because it's corrosion you take that metal with that sander you start rubbing it off and it's like you're saying a piece of wood to get out that that hole if you don't get all the way there the edges around it but you still have a hole that's what he saw he saw pics with rounded edges which indicated they had been worked on but not completely removed so his conclusion was those pits predated the reconditioning by now all of the other issues as to whether or not there are other causes this court has repeatedly said it's not an expert responsibility to rule out every other cause that exists the responsibility is to have good methodology he has good enough methodology to rule out all other conclusions and reach the conclusion that that's it you've got a lot of offer that testimony especially when their expert gets to do it and i would disagree with mr carlisle with all due respect to him the experts follow the same methodology he wanted more work but they both did the same thing wanted magnetic particle testing he did aleck tronic or our magnetic fuse me microscopic examination of the metals he did all of that work so it's the same methodology it's no different it's the same methodology it's different conclusions both experts that's not that's just not the way it should be your  a but where these cars that failed or by somebody else yes and if the answer to your question is it depends but in this instance one was a coal car owned and operated by a rail car management company and least to an energy company and that they are calling other correctly the other one they may have both been coal cars now mix in my case it's got a union pacific didn't own either one of them they're owned by third parties the cars didn't get interchange what you call the next in the last case of the day please