Kreisman Law Offices Professional Corporation
Cynthia Madden was killed by a BNSF train after her car stalled on the railway crossing in May 2007 near Moline, Illinois. The Madden family brought a lawsuit against the railroad claiming negligence, specifically that the warning indicators for the train approach had all occurred fewer than 20 seconds before the train reached the crossing. It was alleged that the shortfall was in violation of federal safety regulations.
After a hearing, the magistrate judge ruled that the plaintiff had not made out a prima facia case of negligence and granted summary judgment in favor of the railroad. The Madden family appealed.
The appellate court noted that an event recorder at the crossing recorded all the warning indicators triggering about 30 seconds before the incident.
Madden’s grown children went to the site of the accident a week or two after the event and timed the intervals between when the train’s horn sounded and when the train reached the crossing. The testimony given by the children was conflicting as to the amount of time spent timing the train, the time of day when the trains were timed and the intervals recorded.
The magistrate judge conducted a Daubert hearing. The Madden family experts had intended to testify as to their belief that the children had testified accurately. These two plaintiff experts’ testimony was excluded by the judge. The court of appeals, citing United States v. Vest, found this exclusion proper. The court noted that vouching for a lay witness is not expert testimony.
Because the plaintiff’s counsel failed to present enough evidence to create a prima facia case, it would be impossible for a reasonable jury to infer negligence on the part of the railroad. Therefore, the dismissal on summary judgment was affirmed.
Tanya Nunez, as Administrator of the Estate of Cynthia Madden v. BNSF Railway Co., No. 12-3018 (September 11, 2013).
Kreisman Law Offices has been handling automobile accidents, train and truck accidents for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 37 years in and around Chicago, Cook County and its surrounding areas, including Naperville, Willowbrook, Vernon Hills, Libertyville, Chicago (Bridgeport), Lincolnwood, Lincolnshire, Alsip, South Holland and Blue Island, Illinois.
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