1 

IN THE UNITED STATES DISTRICT COURT FOR THE 

NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

CHRISTINE M. JONES, individually and as ) 

SPECIAL ADMINISTRATOR OF THE ) 

ESTATE OF TIMOTHY JONES, ) 

 ) 

 Plaintiff, ) 

 ) Case No. 12 C 771 

 v. ) 

 ) Judge Joan H. Lefkow 

UNION PACIFIC RAILROAD COMPANY ) 

and STEVEN PIGNATO, ) 

 ) 

 Defendants. ) 

OPINION AND ORDER 

 In this suit, Christine M. Jones (“plaintiff”) brings claims against Union Pacific Railroad 

Company (“Union Pacific”) and Steven Pignato, a locomotive engineer, for negligence, wrongful 

death, and loss of consortium. (See dkt. 2.) Plaintiff also seeks to hold Union Pacific liable for 

Pignato’s conduct under respondeat superior. (Id.) The claims stem from the death of plaintiff’s 

husband, Timothy Jones (“Jones”), who was killed on August 4, 2010 when his car collided with 

a train owned by Union Pacific and operated by Pignato. (Id.) Six motions to bar expert 

opinions and testimony are before the court: three filed by defendants (dkts. 135, 137, 139) and 

three filed by plaintiff (dkts. 141, 142, 143). For the reasons stated below, the motions are 

granted in part and denied in part.1

 

BACKGROUND 

 Filed concurrently with this opinion and order is the court’s ruling on defendants’ motion 

for summary judgment. Because the court has set forth the relevant background facts in that 

                                                       1

 The court has jurisdiction under 28 U.S.C. § 1332(a). Venue is appropriate in this district under 

28 U.S.C. § 1391(b). 

 
2 

opinion, it will not repeat those facts here, except as relevant to the resolution of the instant 

motions.2

 

 Jones was killed on a drizzly morning in August 2010 when his car collided with a train 

owned by Union Pacific and operated by Pignato. (Dkt. 132 ¶¶ 25–26.) The accident took place 

at a railroad crossing in Des Plaines, Illinois. (Id. ¶ 8.) At the time of the accident, the train was 

equipped with a video recording system, which recorded both the front and rear views of the 

locomotive. (Id. ¶¶ 34–35; dkt. 140-6 Exh. F.) The train also had an event recorder, which 

recorded and monitored data about the locomotive including its speed and whether the brakes 

were applied. (Dkt. 132 ¶¶ 32–33.) The warning system at the railroad crossing where the 

accident occurred also contained a data recorder, which collected information about the system’s 

operation. (Id. ¶ 14.) Plaintiff, Jones’s widow, filed this suit on her own behalf and as special 

administrator of her husband’s estate. (Dkt. 2.) 

 Many of the disputes in this case relate to the authenticity of the available video 

recordings. After Union Pacific produced a thirty-minute, forward-facing video in discovery, 

plaintiff claimed that the video had been altered (largely because Jones’s Buick is not visible in 

the video, either before or after impact) and moved to compel production of the original 

electronic video data from the train’s hard drive. (Dkt. 29.) The court denied the motion 

because the hard drive was no longer in Union Pacific’s possession, custody, or control (dkt. 57), 

and plaintiff moved to bar the video entirely. (Dkt. 63.) The court denied that motion as well. 

(Dkt. 81.) Nevertheless, the parties have retained experts to opine on the authenticity of the 

video, and, consequently, the weight that should be assigned to it by the jury. Moreover, while 

reviewing the report of defendants’ expert Bruce E. Koenig, plaintiff’s counsel discovered that 

                                                       2

 The court has culled the facts in this brief background from the parties’ L.R. 56.1 statements, 

their briefs supporting and opposing the Daubert motions, and the docket. 
3 

Koenig had reviewed a fifteen-minute, forward-facing video, rather than the thirty-minute video. 

(See dkt. 143 at 7.) While Union Pacific maintains that the fifteen-minute video is merely a 

shorter version of the thirty-minute video (dkt. 151 at 1–2), plaintiff argues that the existence of 

two videos supports her claim that the video evidence has been altered. (Dkt. 143 at 8.) As 

discussed below, the parties have retained experts to testify on other subjects as well. 

LEGAL STANDARD 

 The admission of expert opinion testimony is governed by Federal Rule of Evidence 702 

and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 

2d 469 (1993). See Bielskis v. Louisville Ladder, Inc., 663 F.3d 887, 893 (7th Cir. 2011). Rule 

702 states that a witness who is qualified as an expert by knowledge, skill, experience, training, 

or education may testify in the form of opinion or otherwise provided that “(a) the expert’s 

scientific, technical, or other specialized knowledge will help the trier of fact to understand the 

evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) 

the testimony is the product of reliable principles and methods; and (d) the expert has reliably 

applied the principles and methods to the facts of the case.” Fed. R. Evid. 702. To admit expert 

testimony under this rule, the court must determine that (1) the witness is qualified; (2) the 

expert’s methodology is reliable; and (3) the testimony will assist the trier of fact to understand 

the evidence or to determine a fact in issue. Myers v. Ill. Cent. R.R. Co., 629 F.3d 639, 644 (7th 

Cir. 2010). 

Daubert set out four factors the court may consider when assessing the reliability of an 

expert's methodology: (1) whether the theory is based on scientific or other specialized 

knowledge that has been or can be tested; (2) whether the theory has been subject to peer review; 

(3) the known or potential rate of error and the existence of standards controlling the theory’s 
4 

operation; and (4) the extent to which the theory is generally accepted in the relevant community. 

Daubert, 509 U.S. at 593–94; see also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 151, 

119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999). These factors, however, are not a “definitive 

checklist or test,” Daubert, 509 U.S. at 593, and the importance of different factors will vary 

based on “the particular circumstances of the particular case at issue.” Kumho, 526 U.S. at 150. 

The objective “is to make certain that an expert, whether basing testimony upon professional 

studies or personal experience, employs in the courtroom the same level of intellectual rigor that 

characterizes the practice of an expert in the relevant field.” Id. at 152. 

 Thus, the inquiry under Rule 702 “is a flexible one.” Daubert, 509 U.S. at 594. 

“Determinations on admissibility should not supplant the adversarial process; ‘shaky’ expert 

testimony may be admissible, assailable by its opponents through cross-examination.” Gayton v.

McCoy, 593 F.3d 610, 616 (7th Cir. 2010). The proponent of the testimony bears the burden of 

proving that the proffered expert opinions meet these requirements, and the district court has 

“wide latitude in performing its gate-keeping function.” Bielskis, 663 F.3d at 894. 

ANALYSIS 

 As noted above, both plaintiff and defendants have filed motions to bar expert opinions 

and testimony. The court addresses defendants’ motions first before turning to those filed by 

plaintiff. 

I. Defendants’ Motions 

 A. Motion to Bar Paul Byrnes 

Plaintiff named Paul Byrnes as an expert witness. (Dkt. 136-1 Exh. A.) Byrnes worked 

as a locomotive engineer, as well as a trial attorney for the Federal Railroad Administration 

(“FRA”), before becoming a railroad safety consultant. (Dkt. 136-2 Exh. B at 3.) Plaintiff 
5 

retained Byrnes to testify about two topics: (1) whether “Union Pacific’s actions were the cause 

in whole or part of the accident/incident that occurred on August 4, 2010” (id. at 2); and (2) 

whether Union Pacific properly preserved evidence in this case, specifically the forward-facing, 

thirty-minute video taken from the locomotive at the time of the accident (dkt. 136-3 Exh. C at 

2). Byrnes provided his opinions on the first topic in a February 24, 2014 report and his opinions 

on the second topic in a February 27, 2014 report. 

 1. February 24, 2014 Report 

 i. Opinions 1–4, 11, 13 

Defendants first argue that opinions 1–4, 11, and 13 of the February 24, 2014 report 

should be excluded because they are statements of fact, rather than expert opinions. Those 

paragraphs provide as follows: 

1. A train-vehicle collision resulting in the death of the vehicle 

operator occurred at or about 8:10 a.m. on August 4, 2010 at the 

Des Plaines River Road highway-rail crossing. 

2. The track structure at the site of the collision consists of three 

main lines . . . with a maximum authorized timetable speed of 70 

miles per hour. 

3. The track in this area is very heavily traveled with an average 

reported daily train count of 68 trains with speeds over the crossing 

ranging from 20 to 70 mph. 

4. The track in this area is reportedly FRA class 5 with a maximum 

federal track speed of 90 mph for passenger trains and 80 mph for 

freight trains. 

. . . . 

11. The locomotive engineer was riding in the cab of the Metra 

160 locomotive by himself at the time of the collision. 

. . . . 
6 

13. The locomotive cab video and the event data recorder 

download from the . . . controlling locomotive . . . confirm that at 

no time before the collision was the locomotive horn sounded as 

the train approached and occupied Des Plaines River Road. 

(Dkt. 136-2 Exh. B at 3 ¶¶ 1–4, 4 ¶ 11, 5 ¶ 13.) 

 The court agrees that opinions 1–4 and 11 contain statements of fact, not opinions. While 

an expert may testify about facts forming the basis of his other opinions under Federal Rule of 

Evidence 703, provided that the facts are otherwise admissible or their probative value 

substantially outweighs their prejudicial effect, there is no indication that these facts support 

Byrnes’s other opinions. To the extent the facts form the basis of Byrnes’s opinions, he may 

testify to them. To the extent they do not, however, the statements are irrelevant and therefore 

inadmissible. 

Opinion #13 is a closer call because Byrnes is opining on whether Pignato sounded the 

locomotive horn based on his review of the forward-facing video and the event recorder data. 

His opinion is inadmissible to the extent it is based on his observation of the video, as the jury 

may simply watch it themselves and come to a conclusion. Byrnes may offer an opinion, 

however, as to whether the locomotive horn sounded based on his examination of the event 

recorder data. This opinion will assist the trier of fact because interpreting the data is outside the 

range of knowledge of the average juror. 

 ii. Opinions About the Quiet Zone 

Opinions 6–103

 pertain to the railroad crossing’s status as a quiet zone. In opinions 6, 7, 

and 9, Byrnes criticizes this status. Opinion #6 states, “Despite having a long history of trainvehicle collisions—including a number resulting in fatalities—Des Plaines River Road remains a 

‘legacy’ Chicago-area ‘quiet zone’ highway-rail crossing[] where the horn is not sounded by the 

                                                       3

 The report does not contain an opinion #5. 
7 

locomotive engineers on approaching trains unless an emergency situation is perceived.” (Id. at 

3–4 ¶ 6.) Similarly, opinion #7 provides, “Despite an apparent lack of the type of safety 

measures required for any ‘new’ quiet zone crossing, e.g., four-quadrant gates, barriers, traffic 

channelization devices, Des Plaines River Road continues to be a quiet-zone crossing.” (Id. at 4 

¶ 7.) And opinion #9 states, “Union Pacific is on record as being opposed to quiet-zone 

crossings; stating on its . . . website that such crossings ‘compromise the safety of railroad 

employees, customers, and the general public.’” (Id. at 4 ¶ 9.) Plaintiff has not alleged, 

however, that Union Pacific was negligent because of the crossing’s status as a quiet zone. 

Indeed, Byrnes testified in his deposition that he is criticizing the federal government and the 

City of Des Plaines—not Union Pacific—for designating the crossing as a quiet zone. (See dkt. 

136-4 Exh. D (“Byrnes Dep.”) at 67: 22–71: 13.) Byrnes could testify based on his experience as 

a locomotive engineer that the crossing’s designation as a quiet zone should have caused Pignato 

to be more alert. As is, however, opinions 6, 7, and 9 are not relevant and are therefore 

inadmissible. 

 The same is true for opinions 8 and 10, which suggest Union Pacific should have posted 

warning signs or provided its employees with more training. (See dkt. 136-2 Exh. B at 4 ¶¶ 8, 

10.) Because plaintiff has alleged neither theory of liability, the opinions are not relevant and are 

inadmissible. 

 iii. Opinions Gleaned From Watching the Video 

In opinions 12 and 14, Byrnes describes what he observed while watching the thirtyminute, forward-facing video recorded from the locomotive at the time of the accident. In 

opinion #12, Byrnes opines, “The locomotive cab video appears to show that the locomotive 

engineer’s view of the crossing was at least partially blocked by vegetation and the skewed angle 
8 

of the crossing as the train approached Des Plaines River Road on the morning of August 4, 

2010.” (Id. at 5 ¶ 12.) Opinion #14 states, “Although the sound of the impact with the Jones 

vehicle can be heard on the soundtrack that accompanies the locomotive cab video, the vehicle is 

not visible at any time while watching the video.” (Id. at 5 ¶ 14.) These opinions are not 

admissible because watching the video and observing what it shows are within the ken of the 

average juror; accordingly, the opinions would not assist the trier of fact. 

 iv. Opinions on the Operation of the Crossing Gates 

Byrnes opines on the operation of the crossing gates in opinions 15, 16, and 18.4

 Opinion 

#15 states that under safety standards promulgated by the FRA, “gate arms must be fully down in 

the horizontal position at least five (5) seconds before the arrival of any train at the crossing.” 

(Id. at 5 ¶ 15); see also 49 C.F.R. § 234.223. Then, Byrnes notes that “[a]lthough [Pignato] 

testified at deposition that he could see that the crossing gate was down on the side of the 

crossing where the Jones vehicle came from before the collision, [eyewitness Hank 

Kolak] . . . has repeatedly stated . . . that the crossing gate on his . . . side of the crossing did not 

come down until after the train struck the Jones vehicle.” (Dkt. 136-2 Exh. B. at 5–6 ¶ 16.) 

Byrnes concludes that “[i]f the crossing gate arm in question was not fully down in the horizontal 

position at least five seconds before Metra 160 arrived at the crossing, Union Pacific was in 

violation of the FRA Grade Crossing Signal System Safety Standards.” (Id. at 6 ¶ 18.) 

 These three opinions, which comment on the legality of Union Pacific’s conduct based on 

a certain set of facts, would not assist the jury. As Byrnes acknowledged in his deposition, his 

opinion is essentially that ‘“if’ [the gates] were not activated in accordance with what they’re 

required [to] do by federal law, then they’re in violation[.]” (Byrnes Dep. at 88: 2–4.) This 

                                                       4

 The report does not contain an opinion #17. 
9 

circular statement is not an expert opinion within the meaning of Federal Rule of Evidence 702. 

 Furthermore, his opinion comes dangerously close to constituting a legal conclusion on 

an ultimate issue in the case, which is not permissible. See Good Shepherd Manor Found., Inc. 

v. City of Momence, 323 F.3d 557, 564 (7th Cir. 2003) (“[E]xpert testimony as to legal 

conclusions that will determine the outcome of the case is inadmissible.” (citation omitted)). 

Illinois law provides “a remedy for negligence resulting from violation of federal railroad safety 

regulations” by “making the violation of a safety regulation intended for the protection of the 

class of persons to whom the plaintiff belongs . . . prima facie evidence of negligence.” Nunez v. 

BNSF Ry. Co., 730 F.3d 681, 682 (7th Cir. 2013) (citations omitted). Thus, if plaintiff chooses 

to proceed under a prima facie negligence theory at trial, Byrnes’s opinion would amount to a 

legal conclusion on an outcome-determinative issue—namely, whether Union Pacific violated 

federal regulations, and thus breached its duty of care. Should plaintiff wish to pursue this 

theory at trial, she may request a jury instruction so that the court can instruct the jury on the law. 

Byrnes’s opinions on the operation of the gates, however, will not be allowed. 

 v. Opinions on Pignato’s Actions 

 Byrnes opines in opinions 19 and 20, “If the locomotive engineer could not be absolutely 

certain that the gates and lights at the Des Plaines River Road were fully activated before the 

train entered the crossing, he should have approached the crossing prepared to stop short of it 

until it could be determined that the devices were fully activated” and “should have been 

sounding the locomotive horn in the required pattern as the train approached the crossing.” (Dkt. 

136-2 Exh. B at 6 ¶¶ 19, 20.) Defendants argue that these opinions are based on improper 

credibility determinations, because Byrnes ignores the evidence suggesting that the gates were in 

fact down as the train approached the crossing. Expert witnesses, however, “routinely base their 
10 

opinions on assumptions that are necessarily at odds with their adversary’s view of the 

evidence.” Richman v. Sheahan, 415 F. Supp. 2d 929, 942 (N.D. Ill. 2006) (citations omitted). 

Indeed, “[t]here is a critical distinction between . . . testifying . . . [that] one witness is more 

credible than another and an expert giving an opinion based upon factual assumptions, the 

validity of which are for the jury to determine.” Id. While the former is impermissible, the latter 

is not. See id. Here, Byrnes is entitled to give his opinion based on factual assumptions—the 

truth of Kolak’s testimony that the gates were not down when the train reached the crossing. 

 Defendants argue that opinion #20 attempts to define the term “emergency situation” as it 

is used in the federal regulations. See 49 C.F.R. § 222.23(a)(2) (“Notwithstanding . . . provisions 

addressing the establishment of a quiet zone, . . . this part does not preclude the sounding of 

locomotive horns in emergency situations.”). Although Byrnes testified in his deposition that he 

considered the circumstances described in opinion #20 to be an emergency situation (Byrnes 

Dep. at 32: 16–18), the opinion itself is not couched in legal terms and does not purport to 

interpret the regulation. Instead, the opinion “provid[es] concrete information against which to 

measure [an] abstract legal concept[]”—specifically, the emergency situation standard. See 

United States v. Blount, 502 F.3d 674, 680 (7th Cir. 2007). Byrnes’s opinion is admissible. 

 vi. Opinions on What Pignato Might Have Seen 

 Byrnes speculates in opinions 21 and 22 about Pignato’s ability to see Jones’s vehicle 

before impact. Those opinions provide, “If [Pignato] was being alert and attentive as the lead 

locomotive approached the crossing, it is hard to understand why he did not see the Jones vehicle 

just before impact—particularly if Mr. Jones drove around the crossing gate to enter the crossing 

as was claimed” and “if the headlights were illuminated.” (Dkt. 136-2 Exh. B at 6 ¶¶ 21, 22.) 
11 

These statements are inadmissible because they amount to nothing more than unsupported 

speculation, rather than expert opinions that will assist the trier of fact. 

 vii. Opinion on Avoiding the Accident 

In opinion #23, Byrnes states as follows: “Given the rapid slowing possible on this type 

of train when placed in emergency . . . it is likely that the Jones’ [sic] vehicle would have had 

time to clear the fouling envelope of track one if the train had been placed in emergency several 

seconds earlier.” (Id. at 7 ¶ 23.) Byrnes’s opinion lacks a sufficient basis. Indeed, he admitted 

at his deposition that he is not an accident reconstructionist or engineer and that he does not have 

the qualifications to perform an accident reconstruction analysis. (See Byrnes Dep. at 60: 1–9.) 

Rather, he testified that the basis for this opinion is his “experience running these types of 

trains.” (Id. at 60: 18–19.) There is no indication, however, that Byrnes has had sufficiently 

similar experiences that would allow him to opine on this issue. Absent expertise in accident 

reconstruction or a methodological or experiential basis for the opinion, it will not be admitted. 

 2. February 27, 2014 Report 

 Byrnes opines on Union Pacific’s preservation of the digital video recorder in his 

February 27, 2014 report. (See dkt. 136-3 Exh. C.) Specifically, Byrnes begins by noting that 

under 49 C.F.R. § 229.135(e), “covered railroads [must] keep data recorded by any locomotive 

mounted recording device installed on any locomotive involved in a reportable accident/incident 

in secure custody for one year.” (Id. at 2 ¶ 1.) Relying on a letter from the FRA’s Assistant 

Chief Counsel for Safety, Byrnes states that the regulation applies to this case because the FRA 

considers in-cab locomotive video recorders to be “locomotive-mounted recording devices” 

within the meaning of the regulation. (Id. at 2–3 ¶ 2.) 
12 

 The remainder of Byrnes’s report concerns whether Union Pacific complied with the 

regulation in preserving the video and data recorders. Byrnes acknowledges that the FRA has 

not specified the meaning of “secure custody,” but proceeds to draw on his experience with the 

“secure storage of specimens collected for testing . . . under . . . alcohol and drug abuse 

standards” to define the term and to determine that Union Pacific fell short of its requirements. 

(Id. at 3 ¶¶ 4–5.) Defendants contend that Byrnes’s opinions are inadmissible because, among 

other reasons, they amount to impermissible interpretations of a regulation that will not assist the 

trier of fact. The court agrees. 

 It is well established that an expert witness may not opine on the meaning of a statute or 

regulation. See United States v. Caputo, 517 F.3d 935, 942 (7th Cir. 2008) (“The ‘expert’ would 

have testified about the meaning of the statute and regulations. That’s a subject for the court, not 

for testimonial experts.” (citation omitted)); Bammerlin v. Navistar Int’l Transp. Corp., 30 F.3d 

898, 900 (7th Cir. 1994) (“The meaning of federal regulations is not a question of fact, to be 

resolved by the jury after a battle of experts. It is a question of law, to be resolved by the 

court.”). Byrnes, however, does just that in his report; indeed, he determines that locomotive 

video recorders are “locomotive-mounted recording devices” within the meaning of 49 C.F.R. 

§ 229.135(e) and spends the remainder of his report defining the term “secure custody” and 

applying that definition to Union Pacific. Because Byrnes impermissibly interprets the meaning 

of the regulation, neither his analysis nor his opinion that Union Pacific failed to comply with the 

regulation (which is infected with his determination of what the regulation means) will be 

admissible. 
13 

 3. Opinions Raised in Deposition Testimony 

Defendants seek to bar three other opinions to which Byrnes testified in his deposition; 

these opinions are not included in the two reports discussed above. 

 First, Byrnes opined that “[i]f the gate was up, [Jones] is certainly within his rights to rely 

on those gates being up. The gate being up is the same thing as a green light as far as that 

crossing is concerned.” (Byrnes Dep. at 46: 17–20.) Byrnes continued, “If you believe that you 

can safely traverse the tracks and the gates aren’t down, you continue. In fact, stopping would be 

the worst thing you can do.” (Id. at 47: 14–17.) Byrnes lacks sufficient expertise to give this 

opinion and has not identified any special skill or training that enabled him to reach it. Further, 

there is no indication that Byrnes has any support for his opinion other than his own subjective 

view. He does not reference the Illinois Vehicle Code, nor could he, as the Code does not 

support his statement. See, e.g., 625 Ill. Comp. Stat. 5/11-1201(a) (“Whenever any person 

driving a vehicle approaches a railroad crossing where the driver is not always required to stop, 

the person must exercise due care and caution . . . and shall not proceed until the tracks are clear 

and he or she can do so safely.”). Byrnes’s opinion is inadmissible. 

 Second, Byrnes testified that the video taken from the digital video recorder had been 

altered because “there is [sic] absolutely no images of the vehicle at all” prior to impact. (Byrnes 

Dep. at 93: 6, 8–9.) Byrnes explained that the basis for his opinion is his prior experience 

viewing similar videos: “I’ve looked at many, many videos of grade crossing collisions” and 

“I’ve never seen one before or since where the vehicle was never seen in the video.” (Id. at 93: 

9–12.) As above, Byrnes is not qualified to give this opinion. He has not indicated that he has 

any training or experience as a video analyst; as such, his opinion is inadmissible. See Graves v. 
14 

City of Waterloo, No. C10-2014, 2011 WL 4007324, at *5 (N.D. Iowa Sept. 8, 2011) (“Simply 

watching lots of videotape does not make one an expert in video analysis.” (citations omitted)). 

 Third and finally, Byrnes opined that when approaching a crossing equipped with 

flashing lights and gates, a locomotive engineer should be prepared for, but need not expect, a 

vehicle to maneuver around the gates. (Byrnes Dep. at 57: 12–13.) Defendants argue that the 

opinion is contrary to Illinois law, “which makes clear that an engineer is ‘allowed to presume 

that the vehicle will yield the right of way until such time as it becomes apparent that the vehicle 

has not heard or will not heed the signal.”’ (Dkt. 136 at 24 (quoting Rakers v. S. Ry. Co., 290 

N.E.2d 421, 429, 8 Ill. App. 3d 877 (1972)).) Plaintiff disputes the state of the law. (See dkt. 

157 at 17.) Byrnes’s opinion, however, is not contrary to the rule on which defendants rely. 

Rather, Byrnes’s opinion is merely that a locomotive engineer should be alert when approaching 

a railroad crossing. Byrnes is entitled to offer this opinion based on his experience as a 

locomotive engineer. 

 B. Motion to Bar James R. Loumiet 

Plaintiff named James R. Loumiet as an expert witness. (Dkt. 138-1 Exh. A.) Loumiet 

holds a degree in mechanical engineering and has extensive experience in accident 

reconstruction. (Dkt. 138-2 Exh. B. at 15.) Since 1994, Loumiet has served as president of his 

own consulting firm specializing in train and traffic accident reconstruction, highway safety 

analysis, and vehicle event data recorder analysis, among other things. (Id.) Loumiet’s report 

provides that his “specific assignments in this case included an analysis of the train and Buick 

movements and operations, an evaluation of the locomotive event recorder data, an analysis of 

video taken from the locomotive, and an analysis of the operation of the crossing active warning 

system.” (Id. at 2.) 
15 

 1. Opinions 1–6 

Defendants challenge the first six opinions in Loumiet’s report and argue that they are 

statements of fact that will not assist the jury.5

 Opinion #1 provides the measurements of Jones’s 

vehicle and the locomotive. It states, for example, that Jones’s vehicle was 16.92 feet long and 

4.83 feet high, while the locomotive was fifty-six feet and two inches long and fifteen feet and 

5.25 inches high. (Id. at 2 ¶ 1.) Loumiet testified in his deposition that he drew these figures 

from “the Expert AutoStats printout,” which Loumiet described as a database “commonly used 

by accident reconstructionists.” (Dkt. 138-3 Exh. C (“Loumiet Dep.”) at 73: 4–21.) He also 

testified that the measurements serve as a basis for his other opinions. (Id. at 74: 4–7.) 

 An expert witness may base an opinion on facts or data of which the expert lacks 

personal knowledge if the facts or data are of the type on which other experts in the field would 

rely. Fed. R. Evid. 703. And, as noted above, an expert may testify about the facts or data 

underlying his opinions as long as they are admissible in their own right; if they are not, the 

expert may disclose them only if “their probative value in helping the jury evaluate the opinion 

substantially outweighs their prejudicial effect.” Id. Here, however, there is no indication that 

these measurements underlie any of Loumiet’s opinions. If plaintiff can show that the data do in 

fact underlie Loumiet’s opinions, Loumiet may testify to them. As is, the measurements are 

inadmissible. 

                                                       5

 Before raising specific challenges to Loumiet’s report, defendants make two general arguments 

regarding admissibility, neither of which is persuasive. First, defendants argue that Loumiet is not 

qualified to perform an analysis of the data from the crossing’s warning system to determine whether the 

lights were flashing and the gates were down at the time of the accident. Loumiet, however, does not 

purport to perform such an analysis and plaintiff disclaims that he is offered for that purpose. (See dkt. 

146 at 1 (“Loumiet is not being presented as [a] signal expert[].” (emphasis in original)).) Thus, 

defendants’ argument is moot. Second, defendants argue that Loumiet should not be permitted to 

characterize his work as an “accident reconstruction.” Because defendants cite no authority in support of 

their position, however, the court declines to restrict the manner in which Loumiet refers to his opinions. 
16 

 In opinions 2 through 5, Loumiet interprets the data contained in the event recorder that 

was onboard the train at the time of the accident. (See Loumiet Dep. at 75: 3.) For example, 

opinion #2 provides that “[f]or the one-minute time interval prior to impact the train was 

traveling between 46.3–58.9 mph.” (Dkt. 138-2 Exh. B at 2 ¶ 2.) Similarly, opinion #3 states 

that “[a] service application of the train brakes was made when the front of the train was 31.2 

seconds and 2,434 feet prior to impact.” (Id. at 2 ¶ 3.) This testimony will assist the trier of fact 

because interpreting the event recorder data is beyond the ken of the average juror. Opinion #5, 

however, is not admissible in its entirety. That opinion states, “At no time during its approach to 

the River Road grade crossing was the locomotive horn sounded. Thus, Mr. Jones was provided 

no audible warning of the approaching train.” (Id. at 2 ¶ 5.) Although the first sentence is 

admissible as an interpretation of the event recorder data, the second sentence is beyond the 

scope of what the data supports. It will not be admitted. 

 In opinion #6, Loumiet relies on photographs of Jones’s vehicle and the deposition 

testimony of Kolak and another eyewitness Signe Hovde to opine that the locomotive “impacted 

the left side of the Buick . . . starting from the left-front of the Buick and continuing back to the 

left-side B-pillar just behind the driver’s door so that the direct impact damage extended to 

approximately 9.1 feet back from the front bumper.” (Id. at 2 ¶ 6.) Although Loumiet uses 

measurements and technical terms to describe the point of impact on Jones’s vehicle, his opinion 

amounts to nothing more than a statement that the locomotive struck the left side of Jones’s 

vehicle. A jury could reach the same conclusion after observing witness testimony and 

photographs, and there is no indication that the precise measurements would assist the trier of 

fact. 
17 

 2. Opinion That Jones’s Vehicle Should Have Been Visible on the Video 

Opinion #7 challenges the authenticity of the forward-facing, thirty-minute video. 

Although the video does not show Jones’s vehicle at any time, Loumiet opines that “[i]f the 

witness testimony regarding the speed and the post-impact movements of the Buick is correct, 

then [the vehicle] should have been visible on the video.” (Id. at 3 ¶ 7.) To arrive at this 

conclusion, Loumiet relies on the testimony of Hovde and Kolak for the assumption that Jones’s 

vehicle was traveling at either 5 or 10 miles per hour at the time of the accident. (Id. at 3 

¶¶ 7(a)–(b).) Using those speeds, the distance between the north gate arm and the point of 

impact between Jones’s vehicle and the train, and Loumiet’s calculation that the locomotive 

camera’s field of view extended between 6.8 and 8.3 degrees to the right, Loumiet opines that 

Jones’s vehicle “should have appeared in the locomotive video at, before, and after . . . 5.6 

seconds before impact.” (Id. at 3 ¶¶ 7(c)–(e).) Loumiet continues that “[i]f the Buick paused on 

the tracks before impact as testified to by Ms. Hovde, then it would have been even closer to its 

impact position and more within the locomotive camera’s field of view . . . so that the Buick 

again should have appeared in the locomotive video.” (Id. at 3 ¶ 7(f).) Finally, Loumiet opines 

that Jones’s vehicle should have been visible on the video if it “went as high as the locomotive 

windows after impact” (as Kolak testified). (Id. at 3 ¶ 7(g).) 

 First, defendants argue that Loumiet made improper credibility determinations in arriving 

at his opinion because he assumed the truth of Kolak’s and Hovde’s estimations of the speed of 

Jones’s vehicle at the time of the collision. As discussed above, however, Loumiet is entitled to 

base his opinions on assumptions contrary to defendants’ view of the evidence, provided that 

there is sufficient support for those assumptions in the record (which there is). See Richman, 415 

F. Supp. 2d at 942. 
18 

 Second, defendants contend that Loumiet’s opinions must be excluded because his 

methodology is not reliable. The court disagrees. Based on the assumption that Jones’s vehicle 

was traveling at either 5 or 10 miles per hour at the time of the collision, Loumiet calculates the 

position of Jones’s vehicle at 5.6 seconds before impact. To do so, he uses the distance between 

the north gate and the point of collision. Defendants do not challenge these calculations. Nor do 

defendants dispute Loumiet’s determination that the locomotive camera’s field of view extended 

between 6.8 and 8.3 degrees to the right. Instead, defendants argue that Loumiet never visited 

the scene and made no determinations regarding the placement of the camera on the locomotive 

or the angle of its view. (See Loumiet Dep. at 11: 17–12: 1, 47: 11–19, 108: 5–15.) Further, 

defendants argue, Loumiet does not know how much distance in front of the locomotive is 

obscured from the camera’s view. (Id. at 109: 21–110: 4.) While defendants’ objections to 

Loumiet’s methodology are well taken, they are more appropriately addressed “before the jury 

with the familiar tools of ‘vigorous cross-examination, presentation of contrary evidence, and 

careful instruction on the burden of proof.”’ Lasley v. Xtek, Inc., 689 F.3d 802, 805 (7th Cir. 

2012) (quoting Daubert, 509 U.S. at 596); see also Gayton, 593 F.3d at 616 (noting that “shaky” 

expert testimony is “assailable by its opponents through cross-examination”). At this stage, 

Loumiet’s methodology is sufficiently reliable.6

 

 3. Opinion That Jones’s Vision was Obstructed at the Crossing 

Loumiet opines in opinion #8 that “[s]ight distance down the track to the east was 

restricted by trees and vegetation so that it was difficult or impossible for Mr. Jones to see the 

approaching Metra train.” (Dkt. 138-2 Exh. B. at 4 ¶ 8.) He continues that “[t]he crossing’s 

                                                       6

 Loumiet’s opinion will not be admissible in its entirety. As noted above, he concludes by 

opining that Jones’s vehicle should have appeared in the locomotive video, assuming that Kolak’s 

testimony—that the car flipped up “at least as high as the vision of the engineer” after impact—is 

accurate. This opinion is not admissible because it merely restates Kolak’s testimony. Accordingly, it 

will not assist the trier of fact. 
19 

geometry also made it difficult or impossible for Mr. Jones to see the approaching train as the 

train would have been behind him when he was westbound on Miner Street.” (Id.) This opinion 

is not based in scientific or specialized knowledge and would not assist the jury. Indeed, there is 

no indication that Loumiet grounded his opinion in calculations that would shed light on Jones’s 

line of sight at specific positions and times before impact. Cf. Baker v. Canadian Nat’l/Ill. Cent. 

Ry. Co., 397 F. Supp. 2d 803, 816 & n.11 (S.D. Miss. 2005) (expert accident reconstructionist 

calculated the train’s speed and the plaintiff’s vehicle positioning to determine that “the ‘train 

was plainly visible, clear of any sight obstruction’” when the plaintiff’s vehicle was at the stop 

sign at the crossing). Presumably, he simply viewed photographs and the locomotive video. 

(See Loumiet Dep. at 150: 7–10 (“Q: Where in that approach would he first have a clear and 

unobstructed view of the approach of that train? A: That I couldn’t tell you.”). The jury can 

draw its own conclusions about Jones’s line of sight after viewing photographs and hearing 

eyewitness testimony. 

 4. Opinion on the Point at Which Jones’s Vehicle Came to a Rest 

Opinion #9 provides as follows: 

It is my understanding that the Plaintiff’s video expert [Edward J. 

Primeau] has opined that the provided locomotive video indicates 

the Buick was on the front of the locomotive for 3.17 seconds after 

impact. My analysis of the locomotive event recorder data 

indicates that the locomotive traveled 208 feet in the 3.17-second 

interval immediately after impact. Thus, if the video expert is 

correct, the Buick should have come to rest at least 208 west of the 

point of impact. Per the police report and post-accident 

photographs, the Buick came to rest only about 160 feet west of 

the point of impact. 

(Dkt. 138-2 Exh. B at 4 ¶ 9.) Presumably, this opinion is intended to challenge the authenticity 

of the locomotive video, based on the discrepancy between the point of rest dictated by the video 

and the actual resting place recorded in the police report. 
20 

 Loumiet’s reliance on Primeau’s calculation is fatal to his opinion. While experts may 

base an opinion on facts or data gleaned from another expert’s testimony, see Dura Auto. Sys. of 

Ind., Inc. v. CTS Corp., 285 F.3d 609, 613 (7th Cir. 2002), Primeau’s testimony is inadmissible, 

for the reasons discussed below. As such, Loumiet may not offer his opinion, which is infected 

by the inadmissible calculation proffered by Primeau. 

 5. Opinion as to Why Pignato Did Not Notice Jones’s Vehicle Earlier 

 In opinion #10, Loumiet states that “the most likely explanation as to why . . . Pignato 

didn’t notice the Buick until less than one second before impact was inattention on his part and 

not maintaining a lookout ahead of the train.” (Dkt. 138-2 Exh. B at 4 ¶ 10.) Loumiet’s opinion 

is improper because it amounts to nothing more than unsupported speculation. Indeed, none of 

the sources cited by Loumiet—Pignato’s testimony, the view of the crossing as depicted on the 

locomotive video, and the crossing dimensions—supports his conclusion. Further, Loumiet’s 

opinion does not assist the trier of fact as it simply tells the jury which result to reach on an 

ultimate issue; namely, whether Pignato was negligent. See Klaczak v. Consol. Med. Transport 

Inc., No. 96 C 6502, 2005 WL 1564981, at *8 (N.D. Ill. May 26, 2005) (“Legal conclusions as to 

ultimate issues generally do not assist the trier of fact because they simply tell the trier of fact 

what result to reach.” (citations omitted)). Loumiet cannot testify as to opinion #10. 

 6. Opinion as to Whether Jones Could Have Stopped His Vehicle 

Loumiet opines as follows in opinion #11: 

At 5 mph on wet pavement, the Buick would brake to a stop in 

about 1.4 feet. At 10 mph on wet pavement, the Buick would 

brake to a stop in about 5.6 feet. Thus, with earlier warning of the 

approaching train Mr. Jones could have stopped his car prior to 

entering the tracks, thereby avoiding collision. 
21 

(Dkt. 138-2 Exh. B at 4 ¶ 11.) Loumiet’s opinion is inadmissible. Although defendants do not 

dispute Loumiet’s calculations, the logical gap between those calculations and his ultimate 

opinion is too wide. His opinion does not factor in Jones’s reaction time, which would lend 

empirical support to his conclusion that an audible warning from the train would have caused 

Jones to brake and stop his vehicle. Nor does Loumiet point to evidence in the record suggesting 

that Jones attempted to brake at any time prior to the accident or that Pignato sounded the train’s 

horn, as to support an opinion that an earlier sounding of the horn and consequential braking 

would have prevented the accident. Absent a basis in scientific or specialized knowledge, 

Loumiet can only speculate as to whether Jones could have avoided the collision. His opinion 

will be barred. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S. Ct. 512, 139 L. Ed. 2d 

508 (1997) (“Trained experts commonly extrapolate from existing data. But nothing in either 

Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that 

is connected to existing data only by the ipse dixit of the expert. A court may conclude that there 

is simply too great an analytical gap between the data and the opinion proffered.” (citation 

omitted)). 

 7. Opinion on Union Pacific’s Compliance with Federal Regulations 

Opinion #12 is identical to Byrnes’s opinion on Union Pacific’s compliance with federal 

regulations governing the crossing’s warning system. Loumiet explains that under federal 

regulations and the Manual on Uniform Traffic Control Devices, the gate arms should have 

reached a horizontal position at least five seconds before the train reached the crossing. (Dkt. 

138-2 Exh. B at 4 ¶ 12.) He then opines, “If Mr. Kovak’s [sic] testimony is correct that the gate 

arm was not coming down until the train was already in the crossing . . . , then the crossing 
22 

signals failed to operate in accordance with” the Manual and the regulations. (Id. at 4–5 ¶ 12.) 

This opinion would not assist the jury, for the reasons discussed above. 

 8. Opinion on Pignato’s Ability to Stop the Train 

Finally, in opinion #13, Loumiet opines as to whether Pignato could have stopped the 

train before it reached the crossing. Pignato testified in his deposition that he first noticed the 

gates were down at the crossing when he turned on the locomotive bell at the whistle post. (Dkt. 

138-4 at 75: 13–14.) Loumiet opines, 

If in fact the gates weren’t down when the train was at the whistle 

post and engineer Pignato had placed the train into emergency 

braking at that time, the train would have stopped in 1,084 feet, or 

about 236 feet prior to reaching the crossing so that a collision 

would not have occurred. In fact engineer Pignato could have 

applied the train brakes as much as 3 seconds after the whistle post 

and still stopped the train short of the crossing. 

(Dkt. 138-2 Exh. B. at 5 ¶ 13.) Defendants argue that Loumiet’s assumption that the gates were 

not down has no factual basis. As discussed previously, however, Kolak testified that the gates 

did not come down until after the accident occurred. Kolak’s testimony provides a sufficient 

basis for Loumiet’s assumption that the gates were not down when the train passed the whistle 

post. Accordingly, his opinion cannot be excluded on this ground. 

C. Motion to Bar Edward J. Primeau 

Plaintiff designated Edward J. Primeau as an expert in forensic analysis and tasked him 

with authenticating the digital video recordings taken from the locomotive at the time of the 

accident. (See dkt. 140-2 Exh. B at 3.) Primeau filed a report dated February 26, 2014 (dkt. 140-

2 Exh. B) and a supplemental report dated June 17, 2014. (Dkt. 140-3 Exh. C.) Primeau 

reviewed the following three locomotive videos to formulate his opinions: (1) the thirty-minute, 

forward-facing video; (2) the rear-facing video; and (3) the fifteen-minute, forward-facing video. 
23 

Based on his forensic testing, Primeau concludes in his February 26, 2014 report that “neither 

Video #1, nor Video #2, are authentic.” (Dkt. 140-2 Exh. B at 4.) 

Primeau supports this overarching opinion with a number of sub-opinions on the 

authenticity of the video recordings. For example, he opines that the thirty-minute video has 

been altered because although “we would expect to see a part of the car, smoke or flames, in the 

[field of view] within the video provided . . . all of these are absent in the video.” (Id.) And he 

opines that based on his analysis of the video with a vectorscope, the “white balance” of the 

thirty-minute video changes before and after impact, indicating that the video has been edited. 

(Id. at 10.) Moreover, Primeau opines that it is possible to “launder[] the video before it enters 

the proprietary player” (id. at 12), and he discusses the process he used to arrive at this 

conclusion in his June 17, 2014 supplemental report. (Dkt. 140-3 Exh. C at 1.) Defendants 

argue that Primeau’s testimony should be barred because he is not qualified to offer expert 

testimony on these topics. The court agrees. 

Primeau began his career in 1979 as an audio engineer and learned to edit recordings 

such as books on tape. (Dkt. 140-9 Exh. I at 2.) From 1979 to 1985, he attended the University 

of Detroit; he majored in communications and minored in criminal justice. (Id. at 4.) Primeau 

worked at Ambience Recording Studio (presumably located in Michigan) as an audio engineer 

and national sales manager from 1980 to 1988. (Id.) Primeau left Ambience in 1987 to focus 

exclusively on his own business, Primeau Productions, LLC, which he started in 1984. (Id. at 2, 

4.) According to Primeau’s resume, Primeau Productions, LLC focuses on “marketing videos 

for professional speakers, audio/video editing, [and] convention/conference production.” (Id. at 

4.) 
24 

 Primeau is the author of the book, The Art of Production, and has served as a voice 

identification expert for the Wall Street Journal. (Id. at 4.) He has previously been a member of 

the International Association for Identification, the Audio Engineering Society, the American 

College of Forensic Examiners, and the American Society of Information. (Id.) And in 1993, he 

earned a merit award from the Michigan chapter of the National Academy of Television Arts and 

Sciences for sound restoration on the NBC show, Peter and the Wolf. (Id. at 2.) 

 Primeau is not a licensed forensic analyst; he claims that his formal training in the field 

consists of two online courses and a week-long program at the University of Colorado at Denver. 

(Dkt. 140-4 Exh. D (“Primeau Dep.”) at 191: 3–192: 9, 192: 23.) After successfully completing 

the online courses, Primeau became a certified “forensic consultant” and “criminal 

investigator”—these certifications give Primeau expertise in “the process of report writing, 

testifying and conducting depositions” as well as knowledge about how to recover evidence, 

photograph it, and mark it. (Id. at 194: 2–4, 15–17.) At his week-long program at the University 

of Colorado, Primeau learned about how to use software to authenticate digital audio recordings. 

(Id. at 23: 23–24:1.) Primeau could not recall where he learned to use the vectorscope he 

employed to examine the white balance in the video; nor could he recall if he had received any 

training on the device. (Id. at 104: 5–20.) 

 Although Primeau may have experience in voice identification, audio and video editing 

and production, and perhaps even forensic audio analysis, there is no indication that he has the 

training, experience, or expertise that would enable him to perform a forensic analysis of the 

videos. His certifications as a forensic consultant and criminal investigator are not relevant to 

the issues on which he opines. And while plaintiff contends that Primeau is qualified by virtue 

of his thirty years of experience, the record makes clear that his experience lies in video and 
25 

audio editing and production, notwithstanding his resume’s unsupported attestation that he has 

“completed hundreds of successful audio and video forensic investigations.” (Dkt. 140-9 Exh. I 

at 2.) Accordingly, Primeau’s forensic video analysis opinions are not admissible. See United 

States v. Welch, 945 F.2d 1378, 1382–83 (7th Cir. 1991) (affirming district court’s decision to 

bar the testimony of the chief audio production engineer for Wisconsin Public Radio as to 

whether a surveillance tape had been edited because, among other things, “he lacked sufficient 

training or experience in forensic tape analysis”); United States v. Jones, No. 95-50119, 1996 

WL 68236, at *5 (9th Cir. Feb. 16, 1996) (affirming district court’s exclusion of expert 

testimony as to whether surveillance tapes had been edited when the expert “did not have any 

formal training in forensic tape analysis” and his experience “was in recording and editing 

music”); Graves, 2011 WL 4007324, at *5 (barring expert testimony when the expert, “an 

experienced videographer, editor, and producer of videos,” lacked training and expertise “in 

analyzing aberrations found in a video”); Holloway v. Ameristar Casino St. Charles, Inc., No. 

4:07 CV 218 DDN, 2009 WL 5169535, at *6 (E.D. Mo. Dec. 18, 2009) (barring the testimony of 

an expert with “over thirty years” of experience “in the audio visual field” for failing to show 

that he was “qualified by experience or education to testify about issues of video editing or 

tampering” (citations omitted)). 

 Unqualified to testify about forensics, the remainder of Primeau’s report consists of a few 

lingering opinions that he is also not qualified to give. The only opinion in Primeau’s report 

conceivably related to forensic audio analysis is his calculation that Jones’s vehicle remained in 

contact with the locomotive for 3.17 seconds after impact. (Dkt. 140-2 Exh. B at 4.) Primeau 

explained in his deposition that he arrived at this calculation by using a sonogram, which 

“measures frequency and amplitude over time and displays it so that it could be visually 
26 

inspected.” (Primeau Dep. at 150: 5–6.) Primeau, however, is not an accident reconstructionist 

or engineer, and he has no basis for assuming that the sound on which he focused was, in fact, 

the sound of the locomotive hitting Jones’s vehicle. (See id. at 152: 1–13 (“It’s very obvious to 

me that was the collision.”).) As such, this calculation is not admissible. The same goes for the 

conclusion he draws using that calculation—that the point at which Jones’s vehicle came to a 

rest after the accident as recorded in the police report is inconsistent with the resting position 

dictated by the video. (See dkt. 140-2 Exh. B at 4.) That opinion, which is merely a recitation of 

an opinion from Loumiet’s report (see dkt. 138-2 Exh. B at 4 ¶ 9), requires specialized 

knowledge and training that Primeau does not possess. 

 For similar reasons, Primeau is not qualified to opine that the video should have shaken 

up and down, rather than side to side, at the point of impact. And Primeau cites no accepted 

standards in support of his opinion that the videos should have been “preserved in the digital 

video recorder that created [them]”—indeed, his only basis for this opinion is his “experience.” 

(Dkt. 140-2 Exh. B at 6.) Moreover, because Primeau is unqualified to testify about whether the 

videos were in fact altered, his opinion that it is possible to launder a piece of video evidence 

would not assist the trier of fact and would confuse the jury. Plaintiff has failed to carry her 

burden to show that Primeau is qualified to render his opinions. His testimony will not be 

allowed. 

II. Plaintiff’s Motions 

A. Motion to Bar Richard M. Campbell 

 Defendants designated Richard M. Campbell as an expert witness. (Dkt. 152-1 at 1.) 

Campbell is currently the president and chief technical officer of Campbell Technology 

Corporation (“CTC”), which is an engineering and railroad and traffic signal construction firm. 
27 

(Id.) Prior to joining CTC, Campbell acquired extensive experience in railroad and traffic signal 

design and operation. (Id. at 1–2.) Defendants retained Campbell to review the data recorder 

contained in the warning system at the railroad crossing and to opine on the operation of the 

warning system at the time of the accident. (See dkt. 152-2 at 8, 11–12.) Campbell also offers 

opinions on Jones’s compliance with the Illinois Vehicle Code. (See id. at 12.) Although 

plaintiff does not challenge Campbell’s qualifications as a general matter, she argues that his 

opinions are inadmissible. 

 1. Opinions 1–4 

The first four opinions of Campbell’s eight-opinion report provide as follows: 

1. The post-accident testing of the grade crossing warning system 

revealed no operational abnormalities. Further, the testing that was 

performed complied with requirements set forth in the Union 

Pacific “Yellow Book” of Signal Tests and Standards for 

Crossings. 

2. Based on my observation of the video taken from the locomotive 

camera . . . the automatic gate for southbound Des Plaines River 

Road can be observed to be lowered for approximately 19 seconds 

prior too [sic] impact. The video information is consistent with the 

HCA recorder data. 

3. The traffic control signal was programmed to provide a Rightof-Way Transfer Time of 7 seconds and a Queue Clearance Time 

of 20 seconds with a 1 second equipment reaction time. Based on 

this information, it is my opinion that there was adequate time for 

the traffic signal governing the westbound through movement on 

US 14 (Miner Rd) to complete the preemption sequence with a 

RED indication displayed and return to a GREEN indication for 

US 14 (Miner Street). . . . 

4. The traffic signal can be observed to be displaying red 

indications with illuminated blank-out No Left Turn signs from the 

locomotive video . . . approximately 15 seconds prior to impact. 

The affidavit provided by Hank Kolak makes reference to the 

illuminated No Left Turn blank-out signs in four separate 

points . . . . My opinion is that based on the fact that the blank-out 

signs were illuminated, the analysis of the railroad equipment 
28 

circuit design and based on the data provided by the HCA confirms 

that the Grade Crossing traffic control system was functioning 

properly. 

(Id. at 11–12 ¶¶ 1–4.) 

 Plaintiff first argues that these four opinions should be excluded because they are based 

on data that are incomplete and therefore unreliable. Specifically, plaintiff maintains that almost 

twenty-four hours of data are missing from the event log produced by defendants for the period 

between 7:19:48 AM on August 2 and 7:09:34 AM on August 3, 2010. (See dkt. 141 at 11.) 

Further, plaintiff contends that the event log given to plaintiff’s counsel before the lawsuit began 

and the event log produced in discovery are different—the pre-lawsuit document does not have 

page numbers and portions of the document are printed in red, rather than black, ink. 

 These arguments go to the weight of Campbell’s opinions, not their admissibility. There 

is no dispute that the data from August 4, 2014, the date of the accident, are complete. And 

plaintiff does not challenge Campbell’s qualifications or his ability to interpret the event-recorder 

data. Plaintiff’s doubts about the accuracy of the data may be raised on cross-examination; they 

are not a basis, however, to exclude Campbell’s opinions. 

 Plaintiff next asserts that opinions 2 and 4 must be barred to the extent that they merely 

describe what the locomotive video shows. The court agrees. In opinion #2, Campbell opines 

that both the video and the event recorder indicate that the automatic gate at the crossing was 

down in the horizontal position for approximately nineteen seconds before impact. While 

Campbell may testify to what the event recorder data say, he may not bolster this finding by 

opining as to what the video shows. The jury is capable of viewing the video itself and coming 

to its own conclusion. Similarly, Campbell opines in opinion #4 that based on the locomotive 

video, Kolak’s testimony, the railroad equipment circuit design, and the event recorder data, “the 
29 

Grade Crossing traffic control system was functioning properly.” (Dkt. 152-2 at 12 ¶ 4.) This 

opinion will not assist the trier of fact to the extent it is based on the video and Kolak’s 

testimony. Campbell, however, may opine as to the functioning of the traffic control system 

based on his review of the event recorder data and the railroad equipment circuit design. 

 2. Opinions 5–8 

 In the second four opinions of Campbell’s report, he opines on Jones’s compliance with 

the Illinois Vehicle Code. His opinions are as follows: 

5. Mr. Jones proceeded to make a left turn disregarding the official 

traffic control devices prohibiting such move as defined by Illinois 

Law 625 ILCS Section 11-305(a) requiring obedience to such 

devices. 

6. Mr. Jones drove his vehicle onto the Des Plaines River Road 

highway-rail grade crossing failing to stop and yield right-of-way 

to an approaching train as required by Illinois Law 625 ILCS 

Section 11-1201 (a-1), 625 ILCS Section 11-1201 Section (a-2), 

625 ILCS Section 11-1201 Section (a-4), 625 ILCS 11-1201 

Section (a-5) and violating 625 ILCS Section 11-1201(e). 

7. Mr. Jones drove his vehicle past flashing red lights warning 

approaching vehicles to stop due to an approaching train as 

prohibited by Illinois Law 625 ILCS Section 11-1201 (a-1) and 

violating 625 ILCS Section 11-1201(e). 

8. Mr. Jones drove his vehicle through and under or around the 

lowered automatic gate for southbound Des Plaines River Road as 

prohibited by Illinois 625 ILCS Section 11-1201(a-2) and violating 

ILCS 11-1201(e). 

(Id. at 12 ¶¶ 5–8.) 

 The court agrees with plaintiff that these opinions are not admissible. As with Byrnes’s 

opinion regarding Union Pacific’s compliance with federal regulations, Campbell’s opinions 

amount to bottom-line legal conclusions that would not assist the jury. See Fuentes v. Miller, 

No. 2:12-CV-454, 2015 WL 3936321, at *5 (N.D. Ind. June 26, 2015) (holding, in a negligence 
30 

case under Indiana law, that plaintiff’s expert could “not give naked legal conclusions . . . or 

testify whether certain conduct violated a law or regulation,” such as the Indiana Motor Vehicle 

Code). Further, Campbell’s ultimate opinion that “the accident resulted solely from Mr. Jones’ 

own actions” (dkt. 152-2 at 12–13), is an inadmissible legal conclusion on an outcomedeterminative issue—namely, proximate cause. 

B. Motion to Bar Michael W. Rogers 

 Defendants designated Michael W. Rogers as an expert witness and asked him to 

reconstruct the accident and to determine why Jones’s vehicle is not visible in the forwardfacing, thirty-minute locomotive video. (Dkt. 153-2 at 1.) Rogers holds degrees in mechanical 

engineering and is a licensed engineer in Illinois and Michigan. (Dkt. 153-1 at 2.) He currently 

works as a senior vice president for Packer Engineering, Inc., which provides consulting services 

in connection with vehicular component and systems testing, restraint systems, and vehicle 

dynamics and accident reconstruction. (Id. at 1.) 

 Rogers offers the following four opinions in his report, all of which plaintiff maintains 

are improper: 

1. The accident was caused by Timothy Jones disregarding the 

activated and properly working railroad grade crossing warning 

devices including, but not limited to, the no-left turn lights and 

down grade crossing gate for southbound River Road. Mr. Jones 

turned left and drove in front of UP train number 690 which was 

outbound on track 1 traveling at 46 mph. 

2. The no-left turn warning lights for westbound Route 14/Miner 

St and the grade crossing gate for southbound River Road were 

both functioning properly based on the TIR image prior to impact 

between locomotive M160 and Mr. Jones’ 2007 Buick Lucerne. 

3. The 2007 Buick Lucerne driven by Mr. Jones is not visible in 

the TIR image because it remained outside the TIR field of view 

up to the point of impact. The exact speed of the Buick could not 

be determined but the Buick was capable of accelerating and 
31 

traveling at reasonable speeds on wet pavement necessary to travel 

from the stop bar onto southbound River Rd and remain out of the 

TIR image while reaching the point of impact. 

4. Following the initial impact, the Buick was moved along and to 

the right of the tracks until it separated from the locomotive shortly 

after leaving the paved surface of River Road and thus would not 

be visible in the TIR image following impact when it rolled onto 

its roof and caught fire. 

(Id. at 13–14 ¶¶ 1–4.) 

 The court agrees with plaintiff that opinions 1 and 2 are inadmissible because they are 

not proper expert testimony and invade the province of the jury. Although Rogers reconstructed 

the accident in this case, there is no indication that opinion #1 is based on his accident 

reconstruction analysis or any other specialized knowledge. Instead, Rogers assumed the role of 

the jury, weighed the evidence (including the locomotive video and witness testimony), and 

came to a conclusion. (See dkt. 153-3 (“Rogers Dep.”) at 153: 3–10 (“I’ve considered lots of 

things. It’s very clear to me though that the video shows, without question, that the gates are 

down for a long period of time . . . which is inconsistent with Mr. Kolak’s recollection of what 

he believes he saw.”).) Thus, his opinion will not assist the trier of fact. Similarly, opinion #2 is 

based solely on Rogers’s observation of the video, which is within the ken of the average juror. 

 Although plaintiff challenges the data underlying opinions 3 and 4, her contentions are 

unpersuasive. To arrive at his opinions, Rogers inspected the accident site on August 11, 2010 

and took photographs, measurements, and laser scans. (Dkt. 153-2 at 1.) He determined the 

final resting position of the locomotive and the point of impact between Jones’s vehicle and the 

locomotive using the event recorder data and the locomotive video. (Id. at 8.) Based on the 

scrape marks observed at the scene of the accident, Rogers was able to determine the post-impact 

movements of Jones’s vehicle. (Id.) 
32 

 Rogers calculated the field of view of the locomotive video camera by conducting 

“inverse camera photogrammetry,” meaning that Rogers measured the distances and angles to 

the objects contained in the camera’s view at the locomotive’s final resting place to determine 

the location of the camera in the locomotive. (Id. at 9.) From these calculations and his 

determination, based on the video, that the traffic light at the intersection of Miner Street and 

River Road was red until at least ten seconds before impact, Rogers explains why Jones’s vehicle 

cannot be seen in the video. (Id. at 12.) Specifically, Rogers calculates the minimum speeds 

Jones’s vehicle would have needed to travel to reach the point of impact while remaining outside 

of the camera’s field of view, depending on whether the vehicle drove around the gate or through 

it. (Id. at 13.) 

 Plaintiff argues that Rogers’s opinions are flawed because he does not take into account 

the speed of Jones’s vehicle as it traveled through the crossing and ignores the estimations of 

speed provided by the eyewitnesses. According to plaintiff, “[t]he rate of speed one travels 

across the crossing is highly relevant to how long you can see the vehicle or person in a crossing 

prior to impact with a METRA train.” (Dkt. 142 at 5 (citations omitted).) Plaintiff’s criticism 

misses the point. As Rogers explains in his report and deposition, he was unable to determine 

the precise speed of Jones’s vehicle, largely because it is unclear what path the vehicle took to 

the point of impact. (See dkt. 153-2 at 12; Rogers Dep. at 34: 1–7.) Thus a primary purpose of 

his analysis is to determine the minimum speeds at which Jones’s vehicle would have needed to 

travel, depending on its driving path, to reach the point of impact while remaining outside of the 

camera’s field of view. Plaintiff cannot challenge the reliability of Rogers’s report for failing to 

account for Jones’s speed, when one of the goals of Rogers’s analysis was to determine the speed 

of Jones’s vehicle. And contrary to plaintiff’s contentions, Rogers did not “construct a set of 
33 

circumstances to explain away the lack of the vehicle being seen in the video.” (See dkt. 142 at 

7.) Rather, he performed an accident reconstruction analysis, assuming the accuracy of the 

video. 

 Plaintiff also argues that Rogers’s measurements are erroneous, making his opinions 

unreliable. For example, based on the height of Jones’s vehicle, Rogers calculated that the 

vehicle would be in the locomotive camera’s blind spot, and thus not be visible, up to 283.7 feet 

away from the location of the camera. (Dkt. 153-2 at 11 Fig. 13.) Plaintiff contends that the 

actual distance to the end of the camera’s blind spot is 226 feet; in support, she attaches what 

appears to be a screen shot of Google Earth measurements. (See dkt. 142 Exh. H.) Similarly, 

plaintiff asserts, without support, that Rogers did not take any measurements “on the city block 

where the locomotive came to rest post-accident,” and maintains that Rogers “mistakenly 

established the point of impact.” (Dkt. 142 at 10, 14.) Plaintiff may raise these points on crossexamination. They do provide a sufficient basis to exclude Rogers’s testimony. 

 Finally, plaintiff argues that Rogers could not be questioned about his opinions or the 

bases for them at his deposition because defense counsel failed to provide the actual 

measurements he had taken. Therefore, plaintiff reasons, Rogers’s report failed to comply with 

Federal Rule of Civil Procedure 26(a)(2)(B) and the exclusion of his testimony is required under 

Rule 37(c)(1). The parties’ discovery dispute is not a sufficient reason to bar Rogers’s report and 

testimony under Federal Rule of Evidence 702 and Daubert. And to the extent plaintiff is 

attempting to bring a discovery motion under Rule 37, the motion is not properly before the 

court. Under Local Rule 37.2, a party must file with her motion under Rule 26 or 37 a 

certification “that after consultation in person or by telephone and good faith attempts to resolve 

differences,” the parties were unable to reach an agreement. The movant must also state the 
34 

time, place, and date of such a conference, and the names of the participating parties. Because 

plaintiff’s request lacks that certification, it is insufficient. 

C. Motion to Bar Bruce E. Koenig 

Defendants named Bruce E. Koenig as an expert in forensic video and audio analysis. 

(See dkt. 151-1.) Koenig holds degrees in physics, mathematics, and forensic science and since 

1996, has been the owner of BEK TEK LLC, a consulting firm specializing in forensic video and 

audio analysis. (Dkt. 151-1 Exh. G at 1.) Prior to starting BEK, Koenig worked as a supervisory 

special agent in the engineering section of the Federal Bureau of Investigation for twenty-one 

years. (Id.) In that capacity, he conducted examinations of audio and video recordings and 

provided authentication, intelligibility enhancement, and voice-comparison services. (Id.) In 

this case, Koenig reviewed the fifteen-minute, forward-facing video and the rear-facing video. 

He opines that the forward-facing video “is an original, executable video/audio recording” and 

that the rear-facing video is “corrupted, due to one or more problems in the camera/microphone 

system,” such that conclusions about the forensic authenticity of the video are not possible. 

(Dkt. 151-1 at 3.) He also explains why he believes the opinions contained in the Primeau report 

are false. (Id. at 4–9.) 

 Plaintiff does not challenge Koenig’s qualifications or the reliability of his methodology. 

Instead, the entirety of plaintiff’s argument challenges the authenticity of the fifteen-minute 

video. According to plaintiff, Union Pacific produced the thirty-minute video in discovery but 

never produced the fifteen-minute video—plaintiff’s counsel only discovered the fifteen-minute 

video while reviewing Koenig’s report. Plaintiff suspects that the fifteen-minute video is not 

authentic because there is no chain of custody document supporting its reliability and argues that, 

because the video was not produced by the close of discovery, it should be barred under Rule 
35 

37(c). Defendants maintain their position that the fifteen-minute video is merely a shorter 

version of the thirty-minute video. 

 A Daubert motion is not the appropriate avenue to determine the authenticity of the 

fifteen-minute video. Indeed, the parties have offered the court no information on its authenticity 

as to make a determination on that issue possible. And to the extent plaintiff seeks to bar the 

video as a sanction for nondisclosure under Rule 37(c), plaintiff has not provided the 

certification required under Local Rule 37.2. Further, because the relevance of Koenig’s 

testimony is directly tied to the authenticity of the fifteen-minute video, a ruling on the Daubert 

motion is not possible either. As such, the court will deny plaintiff’s motion without prejudice to 

refiling. Plaintiff may file a motion in limine challenging the authenticity of the fifteen-minute 

video and Koenig’s testimony. 

CONCLUSION AND ORDER 

 For the foregoing reasons, defendants’ motion to bar the testimony of Edward J. Primeau 

(dkt. 139) is granted in its entirety. Plaintiff’s motion to bar the testimony of Bruce E. Koenig 

(dkt. 143) is denied without prejudice. The remaining Daubert motions (dkts. 135, 137, 141, 

142) are granted in part and denied in part for the reasons stated herein. 

 

Date: September 8, 2015 ________________________________ 

 U.S. District Judge Joan H. Lefkow