In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 17-3602

JEFFERY A. KOPPLIN,

Plaintiff-Appellant,

v.

WISCONSIN CENTRAL LIMITED,

d/b/a CN,

Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 16-cv-588 — Pamela Pepper, Judge.

____________________

ARGUED SEPTEMBER 18, 2018 — DECIDED FEBRUARY 1, 2019

____________________

Before SYKES, BARRETT, and ST. EVE, Circuit Judges.

SYKES, Circuit Judge. Jeffery Kopplin brought two claims 

against the Wisconsin Central railroad under the Federal 

Employers’ Liability Act (“FELA”), 45 U.S.C. §§ 51 et seq.

Both rest on the same allegation: that Kopplin injured his 

elbow in an effort to operate a broken railroad switch while 

employed by Wisconsin Central. The district court entered 

summary judgment for the railroad in part because Kopplin 
2 No. 17-3602

could not prove that the broken switch caused his injury. 

While the parties raise several other questions, that alone is 

sufficient to affirm. 

I. Background

Prior to his injury, Kopplin worked for Wisconsin 

Central as a train conductor. On January 24, 2014, he pulled 

a train into the Fond du Lac yard. To bring the train onto the 

correct track, Kopplin had to get out and “throw” a switch, 

which involves pulling a handle to correctly align the tracks. 

The weather that morning was severe, with below-freezing 

temperatures and 20- to 30-mile-per-hour winds. As a result

ice and snow had built up inside the switch’s mechanisms.

Kopplin tried to remove the ice and snow with a simple 

broom—the only tool Wisconsin Central had provided—but 

after straining himself for several minutes, the switch would 

not budge.

Kopplin claims that this effort was the initial cause of a 

long-term elbow disability, though the evidence is less than 

clear. A video of the incident shows no immediate signs of 

injury. And Kopplin never mentioned any pain symptoms to 

his coworkers until two hours later—time in which he 

continued to perform other physical tasks.

After his physician diagnosed him with medial and lateral epicondylitis, Kopplin took time off work to receive 

treatment. Among other things, he received an effective

pain-relief injection in February. By April the injury had 

fully healed. But in August the pain suddenly reemerged 

when Kopplin tried to drive a riding lawnmower onehanded while holding his son. After that his career as a 

conductor was effectively over.
No. 17-3602 3

Kopplin then brought two related FELA claims against 

Wisconsin Central, both alleging that the railroad was 

responsible for the broken switch and the injury it allegedly 

caused. The first is a run-of-the-mill negligence claim. The 

second is a negligence per se claim premised on Wisconsin 

Central’s alleged failure to comply with 49 C.F.R. § 213.135, 

the regulation that sets national standards for switches. 

Kopplin’s sole causation expert was Dr. Etienne Mejia, who 

testified by deposition that the pain-relief injection Kopplin 

received often provides only temporary relief, which could 

explain the pain’s reemergence. However, Dr. Mejia conceded that he never investigated whether something other than

the January 24 incident could have caused the initial injury. 

In fact, he testified that he knew so little about Kopplin’s job 

that it would be mere speculation to say throwing a switch 

even could cause the elbow injury. Moreover, he admitted 

that he did not investigate whether Kopplin’s other physical 

activities—say, riding a lawnmower in a dangerous fashion—could have caused the renewed elbow problems in 

August.

For two months after the deposition, Kopplin made no 

attempt to supplement Dr. Mejia’s testimony. But after 

Wisconsin Central moved for summary judgment, Kopplin 

attached to his response a new affidavit by Dr. Mejia. The 

contents of that affidavit were markedly different than the

deposition testimony. Dr. Mejia definitively stated that the 

January 24 incident caused the elbow injury, explaining that 

the nature of the injury was so clear that there was no need 

to even consider other potential causes. In the end, Kopplin’s 

effort to bolster his causation evidence was in vain. The 

judge refused to consider the affidavit because it contradicted sworn deposition testimony. And without the affidavit, 
4 No. 17-3602

she found Dr. Mejia’s testimony unreliable under Daubert v. 

Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). As a 

result, Kopplin had no causation evidence at all. 

The judge addressed several other questions, including 

the extent to which regulations promulgated under the 

Federal Railroad Safety Act define the standard of care for 

FELA actions and the extent to which 49 C.F.R. § 213.5(a) 

imposes a notice requirement for negligence per se claims. 

Because the failure to prove causation is fatal to both FELA 

claims, see Walden v. Ill. Cent. Gulf R.R., 975 F.2d 361, 364 (7th 

Cir. 1992), we need not reach those issues here.

II. Discussion

We review a summary judgment de novo, asking whether the movant has shown “that there is no genuine dispute 

as to any material fact.” Hansen v. Fincantieri Marine Grp., 

LLC, 763 F.3d 832, 836 (7th Cir. 2014) (quotation marks 

omitted). We review the exclusion of the affidavit “for abuse 

of discretion, giving the trial judge much deference.” Buckner 

v. Sam's Club, Inc., 75 F.3d 290, 292 (7th Cir. 1996). Finally, 

“we review de novo a district court’s application of the 

Daubert framework. If the district court properly adhered to 

the Daubert framework, then we review its decision to 

exclude (or not to exclude) expert testimony for abuse of 

discretion.” C.W. ex rel. Wood v. Textron, Inc., 807 F.3d 827, 

835 (7th Cir. 2015) (citations omitted). 

We start with the admissibility of Dr. Mejia’s affidavit.

As the judge explained, a party may not “create an issue of 

fact by submitting an affidavit whose conclusions contradict 

prior deposition or other sworn testimony.” Buckner, 75 F.3d 

at 292. The affidavit here contradicts Dr. Mejia’s testimony in 
No. 17-3602 5

at least two ways. First, Dr. Mejia was asked at his deposition whether “there could be other various causes of this 

type of condition” besides the January 24 incident. He

answered unequivocally, “Yes.” But then in his affidavit, 

Dr. Mejia wrote that there was no need to consider other 

causes because “[t]he etiology and diagnosis [were] clear” 

that “the patient suffered from left traumatic medial epicondylitis as a result of the injury of January 24, 2014.” That 

clearly contradicts his original statement that other causes 

could be at play. 

Second, Dr. Mejia was asked at his deposition whether 

throwing a switch “seem[ed] like the kind of activity that 

could lead to the tendinosis,” and he answered, “It would be 

speculation on my part ... .” That admission is squarely at 

odds with his affidavit’s definitive conclusion that Kopplin 

injured his elbow throwing the switch. See id. at 293 (excluding a supplemental affidavit’s detailed description of a fact 

when the affiant had disclaimed knowledge of that same fact 

at her deposition). 

To be sure, we have carved out several exceptions to the 

general rule barring contradictory supplemental affidavits. 

None apply here. For instance, we’ve said that a party may 

offer an affidavit in response to a summary-judgment motion “to clarify ambiguous or confusing testimony.” Bank of 

Ill. v. Allied Signal Safety Restraint Sys., 75 F.3d 1162, 1171 (7th 

Cir. 1996). Yet nothing about Dr. Mejia’s deposition testimony was ambiguous or confusing: without qualification, he 

said that other factors could have caused this condition. 

Similarly, while we have held that an affidavit may contradict sworn deposition testimony if “it is based on newly 

discovered evidence,” id. at 1172, even Kopplin concedes
6 No. 17-3602

that Dr. Mejia received all of the materials supporting his 

affidavit before his deposition. Finally, a new affidavit may 

be appropriate if the earlier testimony was “the result of a 

memory lapse.” Cook v. O’Neill, 803 F.3d 296, 298 (7th Cir. 

2015). Kopplin argues that this exception applies because 

Dr. Mejia did not have the full medical record at his fingertips during the deposition itself. But nothing in Dr. Mejia’s 

responses indicates that he was struggling to recall what

those records said. To the contrary, his responses were direct 

and honest admissions that he never considered certain 

issues at all. 

Even if the affidavit were perfectly consistent with 

Dr. Mejia’s prior statements, a larger problem remains. In 

essence the affidavit sets forth a brand new expert opinion

on a topic beyond the scope of anything in Dr. Mejia’s prior 

disclosures. In his original expert report, Dr. Mejia discussed 

Kopplin’s treatment history and prognosis but never explained how the switch actually caused the disability. The 

issue surfaced for the first time—at least to any meaningful 

degree—in the affidavit itself. By then, the time had long 

passed to disclose a new report on a previously unexplored 

topic: Kopplin attached it as an exhibit to his summaryjudgment response on June 27, 2017, months after the district 

court’s December 30, 2016 deadline for Kopplin’s expert 

reports. See FED. R. CIV. P. 26(a)(2)(D) (“A party must make 

[expert] disclosures at the time and in the sequence that the 

court orders.”).

Without the affidavit the Daubert analysis is relatively 

straightforward. Under Daubert the court considers “whether the expert is proposing to testify to (1) scientific 

knowledge that (2) will assist the trier of fact to understand 
No. 17-3602 7

or determine a fact in issue.” 509 U.S. at 592. The ultimate 

question is whether the expert’s approach is scientifically 

valid, which requires a careful examination of its “evidentiary relevance and reliability.” Id. at 594–95. The focus is on 

the expert’s methodology, not his ultimate conclusions. See 

id. at 595.

Both relevance and reliability are problems here. As to 

reliability, the judge identified a number of causation questions that Dr. Mejia conceded he never considered. Each 

concession significantly undermined the validity of his 

methods. The most troubling were his admissions that he 

never considered whether factors other than the switch 

could have caused the initial injury in January, nor whether 

other factors could have caused the renewed symptoms in 

August. The judge found this unacceptable, and that was not 

an abuse of discretion. See Brown v. Burlington N. Santa Fe Ry. 

Co., 765 F.3d 765, 773–74 (7th Cir. 2014) (faulting an expert’s 

differential etiology not just for failing to “rule in” the 

alleged cause but also for failing to “rule out” other potential 

causes). 

As to relevance, only one of the opinions Dr. Mejia gave 

at his deposition is even probative of causation: his testimony that the pain may have resurfaced in August because the 

pain-relief injection Kopplin received often wears off. That 

is, Dr. Mejia had one theory for how the January injury 

could have had long-term effects. Even that is a partial 

theory because he admitted that he did not know whether 

throwing the switch could have caused the January injury in 

the first place. He testified that it would be “speculation” to 

say one way or another. Because Dr. Mejia’s opinion is only 
8 No. 17-3602

marginally relevant, there is little reason to think that his

testimony would be helpful to the trier of fact.

Kopplin has two final objections. First, he argues that 

even without the affidavit and despite all the problems with 

Dr. Mejia’s deposition testimony, he should prevail because 

the injury’s origin is obvious. It is true that we do not require 

expert testimony when causation is so clear that “a layperson can understand what caused the injury.” Myers v. Ill.

Cent. R.R. Co., 629 F.3d 639, 643 (7th Cir. 2010). For example, 

a pedestrian hit by a truck would generally not need an 

expert to prove the cause of his broken leg. See id. But this

case is much different. There are several steps between 

Kopplin’s effort to fix the switch and his long-term disability, and none is clear. For instance, take the fact that the 

injury resurfaced when Kopplin attempted to hold his son 

while riding a lawnmower. To put it mildly, we are skeptical

that the average layperson knows whether operating heavy 

machinery one-handed can contribute to medial and lateral 

epicondylitis. And because it would not be obvious to a 

layperson, expert testimony was indeed necessary. 

Second, Kopplin insists that his claims should survive 

because Wisconsin Central’s expert Dr. Jan Bax noted in a 

report that “Mr. Kopplin sustained a work-related strain to 

his left-elbow on January 14.” But that one stray line does 

very little work. To start, the report never says that the 

broken switch caused the injury. It says only that the injury

was “work-related,” which could refer to a number of 

different things. The report also oddly says the injury began 

on January 14, ten days before Kopplin operated the broken 

switch. Moreover, Dr. Bax faces many of the same problems 

as Dr. Mejia—namely, that there is no evidence he consid-
No. 17-3602 9

ered whether other factors may have caused the injury. In 

fact, there is no evidence at all that Dr. Bax’s testimony 

would have been admissible under Daubert. Perhaps the 

greatest flaw is that he never said a word about the 

reemergence of the injury in August. One way or another, 

Kopplin still needs admissible expert testimony that the 

January 24 incident caused a long-term disability. That

report is not it.

As mentioned, causation is a necessary element of every

FELA claim. See Walden, 975 F.2d at 364. So Kopplin’s failure 

to present reliable expert testimony on that issue is fatal.

AFFIRMED.