### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 12

‐ 3018

T ANYA N UNEZ

, as administrator of the estate of

C YNTHIA L. M ADDEN

, Plaintiff

‐ Appellant

,

v.

BNSF R AILWAY C OMPANY

, Defendant

‐ Appellee.

____________________

Appeal from the United States District Court for the

Central District of Illinois.

No. 4:09

‐ cv

‐ 04037

‐ JAG

— John A. Gorman

, Magistrate Judge

.

____________________

A RGUED A PRIL 12, 2013

— D ECIDED S EPTEMBER 11, 2013

____________________

Before B AUER

, P OSNER

, and F LAUM

, Circuit Judges

.

P OSNER

, Circuit Judge

. Cynthia Madden was killed when her

car was struck by the defendant’s train at a railroad crossing in

Illinois. Her estate sued the railroad, basing jurisdiction on di

‐ versity of citizenship and claiming that her death had been

caused by the railroad’s negligence—specifically that the rail

‐

road crossing gates had descended, the warning lights at the

crossing had begun flashing, and the locomotive horn had been

blown, all fewer than 20 seconds (fewer than 15 seconds in the

case of the horn) before the train reached the crossing, in viola

‐2 No. 12

‐ 3018

tion of applicable federal safety regulations. 49 C.F.R.

§§ 222.21(b)(2), 234.225.

A state may provide a remedy for negligence resulting from

violation of federal railroad safety regulations. 49 U.S.C.

§ 20106(b)(1)(A). Illinois law, on which this suit is based, pro

‐

vides such a remedy, by making the violation of a safety regula

‐

tion intended for the protection of the class of persons to whom

the plaintiff belongs (and who received the type of injury the

regulation was intended to prevent) prima facie evidence of

negligence. E.g., Abbasi ex rel. Abbasi v. Paraskevoulakos

, 718

N.E.2d 181, 185–86 (Ill. 1999); Kalata v. Anheuser

‐ Busch Cos.

, 581

N.E.2d 656, 661 (Ill. 1991); Davis v. Marathon Oil Co.

, 356 N.E.2d

93, 97 (Ill. 1976); Cuyler v. United States

, 362 F.3d 949, 952 (7th

Cir. 2004) (Illinois law). The magistrate judge, presiding over

the case by consent of the parties, ruled that the plaintiff had

not made a prima facie case of negligence, and so he granted

summary judgment in favor of the railroad, precipitating this

appeal.

The accident occurred at 9:40 p.m. in May 2007 in the small

town of Colona near Moline in northwestern Illinois. Madden

had almost reached the crossing when her car stalled. She re

‐

started it and drove onto the crossing, whereupon the car

stalled again. Just then the crossing gates began to descend, the

warning lights at the crossing began flashing, and the crossing

bells sounded—unmistakable indications of an approaching

train. But rather than rush out of her car Madden tried to restart

it—at least that was the conjecture of an eyewitness, the driver

of one of two cars stopped at the crossing behind Madden’s car.

Noticing that Madden wasn’t getting out of her car, the driver

got out of his car and started walking toward the crossing. He

saw Madden open her car door when the train was only 45 to

50 yards from the crossing, get out, and start to run. The trainNo. 12

‐ 3018 3

struck the car, pushing it against her, causing injuries that

proved fatal.

An event recorder alongside the tracks at the crossing rec

‐

orded that the warning lights had begun flashing, the bells

sounding, and the gates descending, all half a minute before the

train entered the crossing. The interval was consistent with the

witness’s affidavit. He had watched Madden try to restart her

car, had gotten out of his own car, and had walked toward her

at the crossing—and all this after the warning lights had begun

flashing. The event recorder had been inspected and found in

working order 19 days before the accident. (There was another

event recorder, in the locomotive, but because the locomotive

had been built in 1997 its recorder wasn’t required to, and did

not, record when the horn sounded as the train approached the

crossing. 49 C.F.R. § 229.135(b)(3).)

Three grown children of Madden—Michael, Jennifer, and

Carrie Dillard—visited the scene of the accident either a few

days, or a week or two (their testimony was in conflict), after

the accident. They decided to time the interval between when

the horn of an approaching locomotive is first heard and when

the locomotive reaches the crossing. But the testimony they

gave at their depositions about their efforts to determine the in

‐

terval was inconsistent and confusing. Michael testified that he

and his two sisters were at the accident scene timing trains for

20 or 30 minutes, but Jennifer testified that they were there for

an hour and a half. And while she testified that they timed three

different trains, Michael and Carrie mentioned only one. Jen

‐

nifer further testified that they had conducted the tests at noon.

But Michael testified that they had conducted them at dusk. He

also testified that all three had started timing the approach of a

train when they first heard the locomotive’s horn, but Carrie

said they didn’t start timing until they could see the train com

‐ ing. Jennifer testified that Carrie did not time a train, and that4 No. 12

‐ 3018

the train that she and Michael timed had reached the crossing

between 12 and 13 seconds after they heard the horn. Michael

testified that the train had arrived 13 to 14 seconds after he

heard its whistle, but contradicted Jennifer’s and his own testi

‐

mony that all three had timed the train’s approach, stating that

his sisters had instead been “watching mine [his watch] with

me for sure.” But Carrie testified that it was 13 to 14 seconds

after they saw (not heard) the train that it reached the crossing.

Michael was unsure which track he timed. There are two paral

‐

lel tracks at the crossing, and they are about 100 feet apart and

each track has separate lights and gates.

He testified that the warning lights did not begin flashing

until 2 or 3 seconds before the train reached the crossing, but

Jennifer testified that they began flashing earlier, when the

train’s horn could first be heard, which was 12 to 13 seconds be

‐

fore the train’s arrival at the crossing. Michael testified, contrary

to the affidavits of both drivers who had seen the accident, that

the gates came down “as the train was coming through” the

crossing. That, like the failure of the warning lights to flash un

‐

til the locomotive was within 2 or 3 seconds of zooming

through the crossing, would be an incredible safety violation.

Neither sister corroborated Michael’s testimony.

Had Michael used a video camera instead of a watch to

time the trains, he might have had better evidence of the inter

‐

val between when the gates, lights, etc. signaled the train’s ap

‐ proach, and when it arrived at the crossing. (Better evidence,

but not irrefutable, given the possibility of editing a video.) As

it is, the testimony of the three amateur “testers” was too gar

‐

bled to prove anything—which is doubtless why the plaintiff’s

briefs are devoted almost entirely to trying to rehabilitate her

two expert witnesses, railroad engineers all of whose proposed

evidence the magistrate judge excluded after hearing their tes

‐ timony at the Daubert hearing. The expert evidence that theyNo. 12

‐ 3018 5

wanted to give was, as we’ll see shortly, hopelessly inadequate.

Anyway their conclusion that the plaintiff’s decedent hadn’t

had the full warning that the regulations required rested mainly

not on the technical evidence that they planned to give but on

their belief that the children had testified accurately. Vouching

for a lay witness is not expert testimony, e.g., United States v.

Vest

, 116 F.3d 1179, 1185 (7th Cir. 1997); United States v. Benson

,

941 F.2d 598, 604–05 (7th Cir. 1991); Nimely v. City of New York

,

414 F.3d 381, 397–98 (2d Cir. 2005); an engineer’s training and

experience do not make him abler than a juror to evaluate the

consistency of lay testimony. For an expert to offer such an

evaluation is to wrap the lay witness in the expert’s prestige

and authority—a disreputable tactic that the plaintiff’s lawyer

should not have countenanced.

An expert could properly testify that if Michael’s testimony

that the crossing gates did not begin to descend or the warning

lights to flash before the train was within seconds of reaching

the crossing was true, then the event recorder beside the tracks,

which contradicted that testimony, must have been defective.

An expert could also properly testify that what Michael or Jen

‐

nifer or Carrie claimed to have seen happen could as a technical

matter have occurred—but not that any of their testimony was

accurate.

The attempt at vouching in this case, besides being imper

‐

missible, reflects poorly on the experts’ judgment, for no one

who had heard the children’s testimony or read a transcript of it

could think it worthy of belief, since it was a tissue of contradic

‐

tions.

There is more wrong with the expert evidence. One of the

experts (Paul Bodnar) testified that the removal of the locomo

‐

tive horn after the accident for testing (rather than the horn’s

being tested while it was on the locomotive) was suspicious;

maybe the railroad had taken the horn to a place where it could6 No. 12

‐ 3018

be repaired without a railroad worker’s noticing. Much to that

expert’s surprise, in fact the horn was still on the locomotive

when it was tested. Bodnar also testified mistakenly that the

fact that the locomotive’s recorder had not recorded the sound

‐ ing of the horn violated federal regulations.

The other expert (James Sottile) refused to accept the evi

‐

dence from the trackside event recorder that there had been a

30

‐ second warning period before the collision with Madden’s

car. His reason was that the time shown on the recorder was

standard time rather than daylight saving time even though

daylight saving time had begun more than two months before

the accident. But the fact that the recorder displayed the wrong

hour did not affect the display that showed the 30

‐ second warn

‐ ing period. He testified that the period shown on the recorder

was from “an hour prior to the accident.” No; undoubtedly it

was the warning period triggered by the train that hit Madden’s

car. The accident took place an hour before the time recorded

on the recorder only in the sense that daylight saving time dates

time an hour earlier than standard time. The expert testified

that the event recorder could have been tampered with, but

admitted that he had no evidence of that.

The plaintiff’s lawyer points out that three clocks recorded

the time of the accident, and the clock in the event recorder, the

clock in the dispatcher’s office, and the clock in the locomotive

all showed different times even after correction for the fact that

the hour setting in the event recorder had not been changed to

daylight saving time. But what mattered was not whether the

clocks were properly synchronized, but the intervals between

the activation of the crossing safety equipment and the sound

‐ ing of the locomotive’s horn, and the train’s arrival at the cross

‐ ing.

The lawyer insists that the railroad may have tampered

with the event recorder or misrepresented the results of the in

‐No. 12

‐ 3018 7

spection of the locomotive’s horn after the accident. He asks us

to infer that since the hour setting on the recorder had not been

changed to daylight saving time maybe something else wasn’t

set properly, though there is no evidence of that. He failed to

depose any employee of the railroad in an attempt to determine

whether there was destruction of or tampering with evidence of

negligence. (Willful destruction of such evidence could support

an inference of negligence. E.g., Neace v. Laimans

, 951 F.2d 139,

141–42 (7th Cir. 1991) (Illinois law).)

In his briefs and at the oral argument, both heavily focused

on the experts’ suspicion of the defendant’s records and testing

procedures, the plaintiff’s lawyer managed to lose sight of the

fact that before he could gain any purchase by undermining the

defendant’s evidence, he had to present enough evidence to

create a prima facie case—enough evidence that, were it all the

evidence in the case, would allow a reasonable jury to conclude

that it was more likely than not that the defendant had violated

the law. See, e.g., Carroll v. Lynch

, 698 F.3d 561, 564 (7th Cir.

2012). Neither the children’s testimony, reflecting their incom

‐

petent efforts to reconstruct the accident, nor the experts’

worthless evidence, nor both bodies of evidence combined (0 +

0

= 0), would enable a reasonable jury to infer negligence on the

part of the railroad. The judgment is therefore

A FFIRMED

.