Vigil v. Burlington Northern & Santa Fe Railway Co. (521 F. Supp. 2d 1185, 2007)

MEMORANDUM OPINION AND ORDER

ROBERT C. BRACK, District Judge.

THIS MATTER came before the Court on Defendants’ Motion to Strike Affidavit of Allen Haley and to Exclude Opinions (Doc. 124), filed on May 7, 2007; Defendants’ Motion to Strike Second Affidavit of Allen Haley and to Exclude New Opinions (Doc. 136), filed on May 24, 2007; Defendants’ Motion for Summary Judgment (Federal Preemption) (Doc. 74), filed on March 9, 2007; Plaintiffs’ Cross Motion for Sanctions Against Defendants (Doc. 89), filed on April 6, 2007; Defendants’ Motion for Summary Judgment: Federal Preemption of Claims Regarding Crew Training and Train Event Recorders (Doc. 99), filed on April 9, 2007; Defendants’ Motion for Partial Summary Judgment on the Driver’s Negligence Per Se and on Plaintiffs’ Claim that the Train Crew Failed to Maintain a Proper Lookout or Take Action to Avoid the Collision (Doc. 72), filed on March 9, 2007; Defendants’ Motion for Summary Judgment on Plaintiffs’ Negligence and Punitive Damage Claims (Doc. 96), filed on April 9, 2007; and Defendants’ Brief in Support of Their Objections to Plaintiffs’ Designation of Claims and Witnesses in the Pretrial Order (Doc. 159), filed on July 3, 2007. Jurisdiction arises under 28 U.S.C. § 1332.

The Court, having considered the motions, briefs, record, and relevant law, and being otherwise fully advised, finds: Defendants’ Motions to Strike should be granted as to Mr. Haley’s opinions regarding the integrity of data downloaded from the event recorders, the effectiveness of the event recorders, the responsibility of BNSF and Amtrak for the actions of the Amtrak crew, and denied as to Mr. Haley’s opinions concerning whether the train crew properly operated the whistle; a decision on the admissibility of Mr. Haley’s opinion on whether dangerous conditions existed at the crossing that warranted modification of the crossing is reserved pending a hearing pursuant to Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); Defendants are directed to file a motion identifying any documents relied upon by Mr. Haley that are allegedly covered by 23 U.S.C. § 409 or 49 U.S.C. § 20903 by August 10, 2007; and Defendants’ request for costs with respect to their Motions to Strike is denied at this time, subject to renewal at the conclusion of this litigation.

The Court further finds: Defendants’ Motion for Summary Judgment (Federal Preemption) should be granted as to Plaintiffs’ claims relating to the speed of the train and the adequacy of the whistle and denied as to claims that the train crew failed to properly sound the whistle; Plaintiffs’ Cross Motion for Sanctions Against Defendants should be denied; Defendants’ Motion for Summary Judgment: Federal Preemption of Claims Regarding Crew Training and Train Event Recorders should be granted; Defendants’ Motion for Partial Summary Judgment on the Driver’s Negligence Per Se and on Plaintiffs’ Claim that the Train Crew Failed to Maintain a Proper Lookout or Take Action to Avoid the Collision should be granted; and Defendants’ Motion for Summary Judgment on Plaintiffs’ Negligence and Punitive Damage Claims, should be granted on Plaintiffs’ claims for punitive damages and Plaintiffs’ claims that Defendants had authority to close the North Farm Road crossing or the responsibility to maintain North Farm Road and denied on the issues of whether the train crew properly operated the whistle; and a decision on whether Defendants are entitled to summary judgment on the issue of whether dangerous conditions existed at the crossing that warranted modification of the crossing is reserved. Defendants’ objections to Plaintiffs’ designation of witnesses in the Pretrial Order were resolved by a stipulated order filed contemporaneously herewith. Defendants’ objections to Plaintiffs’ designation of claims in the Pretrial Order are overruled to the extent stated herein.

I. Facts.

This wrongful death and loss of consortium action stems from a tragic collision between an Amtrak train and a 1998 GEO Tracker sport utility vehicle (“SUV”). The following statement of facts is set forth in the light most favorable to Plaintiffs, with all reasonable inferences from the record drawn in their favor. See Fuerschbach v. Southwest Airlines Co., 439 F.3d 1197, 1207 (10th Cir.2006).

On the afternoon of March 21, 2003, fifteen-year-old Jacob Moya drove the SUV southbound on New Mexico Highway 313 (“SR 313”) in Sandoval County, New Mexico. Thirteen-year-old Justin Vigil was the only passenger. SR 313 runs parallel to railroad tracks, which are located to the east of the roadway. The boys were on their way to tend cattle on Sandia Pueblo land on the east side of the tracks.

At about 3:35 p.m., the SUV turned east onto North Farm Road, a dirt road that crosses the tracks. ([Doc. 73] Defs. Ex. A, “Arnold Aff.”) The SUV was struck by a southbound Amtrak train. (Arnold Aff.) Jacob Moya and Justin Vigil died in the collision. (Arnold Aff.)

The North Farm Road railroad crossing predates automobile traffic. ([Doc. 86] Pis. Resp. Br., Exs. B and C.). On the day of the collision, there was a stop sign located on the west side of the North Farm Road railroad crossing that faced eastbound traffic approaching the crossing. (Arnold Aff.) There was also a crossbuck sign posted on the same pole, below the stop sign. (Arnold Aff.) The stop sign and the current crossbuck sign were installed after a train-vehicle collision in March 1996. (Arnold Aff.) The stop sign and crossbuck sign were clearly visible to vehicles approaching the North Farm Road crossing from Highway 313. (Arnold Aff.)

At the time of the collision, Plaintiffs Eric Vigil and Kimberly Vigil were on North Farm Road on the east side of the tracks to the south of the crossing. ([Doc. 128] Pis. Ex. 2, “Arnold Report.”) Eric and Kimberly Vigil saw the SUV approach the crossing. (Arnold Report.) Mr. Vigil testified in his deposition that he had gotten into his truck to start it and turn into the pasture gate, when he “looked through the windshield, they [Justin Moya and Jacob Vigil] were on top of the track, and boom, they got hit.” ([Doc. 128] Pis. Ex. 3, E. Vigil Dep. 45.) Mr. Vigil did not hear the train whistle blowing prior to the impact; he only heard the whistle when the train was on top of the SUV. (Vigil Dep. 45.)

Before the accident, Cynthia Herrera was driving southbound on SR 313, behind the SUV. ([Doc. 75] Defs. Ex. C, “Herrera Aff.”) Ms. Herrera could hear the whistle and see the headlight of the train from approximately a quarter of a mile away from the North Farm Road turnoff. (Herrera Aff.) Ms. Herrera slowed down when the SUV stopped to turn left. (Herrera Aff.) After northbound traffic passed, the SUV turned east onto North Farm Road. (Herrera Aff.) As the SUV turned east onto North Farm Road, Ms. Herrera could hear the train whistle inside her vehicle with the windows closed. (Herrera Aff.)

After the SUV turned onto North Farm Road, Ms. Herrera proceeded southbound and watched the SUV in her driver’s side mirror. (Herrera Aff.) Ms. Herrera recalled that the SUV did not come to a stop at the stop sign for the railroad crossing. (Herrera Aff.) Instead, the SUV proceeded onto the railroad track, moving slowly forward onto the track where it collided with the train. (Herrera Aff.)

Ms. Herrera observed the debris from the SUV thrown away from the site, as well as the bodies of the two persons in the SUV as they were ejected from the vehicle. (Herrera Aff.) According to Ms. Herrera, the whistle on the train was blowing the whole time, and the train could be clearly seen in the approach to the crossing as there were no obstructions in either direction. (Herrera Aff.) Ms. Herrera “vividly remembers” the events leading up to the accident. (Herrera Aff.)

Mike Avila was traveling north on SR 313. (Arnold Aff.) Mr. Avila recalled he almost had to stop as the SUV pulled out in front of him to turn onto North Farm Road. (Arnold Aff.)

James Steiner was the first engineer on the train, which was traveling from La Junta, Colorado to Albuquerque, New Mexico. ([Doc. 90] Pls. Ex. 2, “Steiner Dep.” 14.) Mr. Steiner has been operating Amtrak trains on the same route since 1988. (Steiner Dep. 31; 38.) At the time of the accident, Mr. Steiner was trained, qualified and certified as a locomotive engineer. ([Doc. 97],’ Defs. Ex. B, “Nerkow-ski Aff.”)

Mr. Steiner testified in his deposition that the train lights were on, the bell was ringing, and the horn was blowing as the train approached the North Farm Road crossing. ([Doc. 75] Defs. Ex. A; “Steiner Dep.” 107-08; 116-18.) The whistle, bell and lights were checked before the train left La Junta earlier that day and were found to be operational. ([Doc. 97] Defs. Ex. C, “Estep Dep.” 23-25.)

According to Mr. Steiner, the SUV appeared as if it were going to stop, but it continued onto the tracks without stopping. (Steiner Dep. 104.) The distance between the tracks and the road was about 50 yards. (Steiner Dep. 104.) The SUV did not stop, but rolled onto the tracks at a very slow speed. (Steiner Dep. 104.) The SUV “never really stopped,” but “coasted out in front of’ the train. (Steiner Dep. 120.) The SUV was “continuously moving at real slow speed onto tracks.” (Steiner Dep. 161).

Mr. Steiner realized the SUV was not going to stop seconds before the collision. (Steiner Dep. 161.) The SUV may have done a “California roll,” but it never came to a stop. (Steiner Dep. 161.) Mr. Steiner applied the emergency braking system “seconds” before the collision. (Steiner Dep. 106; 120.) Mr. Steiner continued to sound the whistle repeatedly as he placed the train “in emergency.” (Steiner Dep. 121.)

Mr. Steiner testified in his deposition that the train was traveling at 79 miles per hour (“mph”) or slower, before he applied the emergency braking system. (Steiner Dep. 107; 193.) The track was straight, and Mr. Steiner could see a mile or two down the track. (Steiner Dep. 158.) The train had thirty cars. (Steiner Dep. 159.) For a train that size, traveling at that speed, a regular stop required about a mile and an emergency stop required a half a mile or more, depending on tonnage. (Steiner Dep. 159.) According to Mr. Steiner, Defendant BNSF is responsible for track maintenance. (Steiner Dep. 126.)

Lonnie Estep was the second train engineer at the time of the accident. (Steiner Dep. 14-15; 68.) Mr. Estep was trained, qualified and certified as a locomotive engineer at the time of the accident. (Ner-kowski Aff.) Mr. Estep testified in his deposition that Mr. Steiner started sounding the whistle and ringing the bell right at the whistle board, which was 2,500 feet from the crossing. ([Doc. 75] Def. Ex. B, “Estep Dep. 48.”) The whistle board reminds the engineer to sound the whistle. (Steiner Dep. 107.) The weather was clear and visibility was good. (Estep Dep. at 49.) Mr. Estep first saw the SUV on North Farm Road, between the highway and the stop sign. (Estep Dep. 49; 59.)

Mr. Estep recalled that the SUV was moving slowly and appeared that it would stop, but it never came to a stop and entered the crossing. (Estep Dep. 49.) The train was traveling at 79 mph, which was the authorized speed for that section of track. (Estep Dep. 25; 47.) The SUV traveled eastbound on North Farm Road at 3 or 4 mph and looked as if it would stop. (Estep Dep. 58.)

Joseph Tabor was the conductor on the train at the time of the collision. ([Doc. 129] Pis. Ex. 12, “Tabor Dep.”) Vernon Cox was the line brakeman on the train on the day in question. (Steiner Dep. 128.) Mr. Tabor testified in his deposition that he directed Mr. Cox to inspect the train after the accident and Mr. Cox inspected the train as directed. (Tabor Dep. 103-104.) , According to Mr. Tabor, it would be a rule violation for the engineer to take his eyes off a forward-looking direction even for a split second. (Tabor Dep. 103-104.) Mr. Tabor did not recall saying anything about brake problems with the train. (Tabor Dep. 105.)

The crossing had ruts and potholes and was covered with loose stones and gravel. ([Doc. 128] Pis. Ex. 3, “E. Vigil Dep. 73.”) The day after the accident, Eric Vigil observed railroad employees shoveling dirt and covering up the holes. (E. Vigil Dep. 73-74.) Kimberly Vigil testified in her deposition that railroad employees were at the scene shoveling dirt soon after the accident, while the boys’ bodies were still on the ground. ([Doc. 129] Pls. Ex. 15, “K. Vigil Dep. 23.”)

Plaintiff Juan Moya stated in an affidavit that Jacob Moya always honored the rules of the road and traffic statutes of the State of New Mexico. ([Doc. 90] Pis. Ex. 14, “Moya Aff.”) Mr. Moya additionally stated that it was Jacob Moya’s habit to stop for stop signs and yield to oncoming traffic when driving a motor vehicle. (Moya Aff.)

New Mexico State Police Officer Ben Arnold investigated the accident. (Arnold Aff.) Officer Arnold determined that the lights, bells, and whistle on the train were working properly. (Arnold Aff.) There were no obstructions • near the crossing that would have prevented the driver of the SUV from seeing the train on the approach to the crossing. (Arnold Aff.) Officer Arnold stated in his affidavit that there were numerous music CDs scattered in and around the SUV and the volume setting on the stereo was at 3/4 of the maximum. (Arnold Aff.) All the windows on the SUV were tinted extremely dark. (Arnold Aff.)

Officer Arnold wrote that the railroad crossing was indicated by two signs, one facing approaching traffic on each side of the tracks. (Arnold Aff.) The signs consisted of a red stop sign, and below the stop sign on the same pole, was a white sign containing a large black “X” with an “R” on each side of the “X” to indicate a railroad crossing. (Arnold Aff.) The signs were clearly visible to vehicles approaching the crossing from the west on North Farm Road from SR 313, with nothing obstructing the line of sight. (Arnold Aff.)

Officer Arnold observed no skid marks or tracks indicating that the SUV tried to stop. (Arnold Aff.) In Officer Arnold’s opinion, the accident was caused by the driver of the SUV, who failed to yield the right-of-way to the train and did not stop at the crossing despite the stop sign, and the train engineers were not at fault. (Arnold Aff.)

Phil Nerkowski is Road Foreman of Engines and Designated Supervisor of Locomotive Engineers for Amtrak, based in Albuquerque. ([Doc. 127] Pis. Ex. 5, “Nerkowski Dep.” 8; [Doc. 97] Defs. Ex. B, “Nerkowski Aff.”) Mr. Nerkowski has worked for railroads since 1978, and has been a Road Foreman of Engines since 1991. (Nerkowski Dep. 7-8; 34-35.)

In his capacity as Road Foreman of Engines, Mr. Nerkowski has downloaded data from train event recorders since 1991. (Nerkowski Dep. 34-35.) Event recorders operate in a manner similar to airplane “black boxes” in that they continuously record data during a trip. Mr. Nerkowski performs between 100 to 150 downloads per year and has undergone special training on how to download data from event recorders. (Nerkowski Dep. 35.) Mr. Nerkowski trains others on “the basics” of how to perform downloads of event recorders and is proficient at evaluating the information. (Nerkowski Dep. 36.)

Mr. Nerkowski was notified of the accident shortly after it occurred, and he proceeded to the scene to investigate. (Ner-kowski Dep. 41-43.) Mr. Nerkowski downloaded data from the event recorders onto PC cards and measured the No. 2 wheels on the right side of the lead and second locomotives. (Nerkowski Dep. 43-44.) The wheel size on AM-195 was measured at 39.75 inches in diameter, and the wheel size on AM-23 was measured at 37.35 inches in diameter. (Nerkowski Dep. 79.) Mr. Nerkowski did not download the data from the other two locomotives on the train. (Nerkowski Dep. 34; 88.)

The event recorders for AM-195 and AM-23 recorded all the information required by federal regulations, including the speed of the train, its direction of motion, time, distance, throttle positions, brake applications, and operations. (Nerkowski Aff.) The event recorders on AM-195 and AM-23 were equipped with a tamper-resistant device to prevent the data from being altered. (“Nerkowski Dep.”)

On the evening of March 21, 2003, Mr. Nerkowski copied the data onto three sets of diskettes and printed out three copies of the data in his office in Albuquerque. (Nerkowski Dep. 83-84; 86.) Mr. Ner-kowski sent a set of diskettes and printout via FedEx to the BNSF claims office and to the Amtrak claims office. (Nerkowski Dep. 86.) Mr. Nerkowski kept a set of diskettes and printout for his file. (Ner-kowski Dep.)

On February 1, 2007, Mr. Nerkowski printed out another copy of the data with new software in preparation for his deposition. (Nerkowski Dep. 104.) For the February 1, 2007 printout, Mr. Nerkowski tried to adjust the date, time and wheel size. (Nerkowski Dep. 104-05.) The time and wheel size inputted affects the accuracy of the time and distance values shown on the printed table. (Nerkowski Dep. 102.) Only the time, date, and wheel size can be adjusted. (Nerkowski Dep. 105; 112-113.) A change in the date and time only changes the date and time on the printout, not the other data on the printout. (Nerkowski Dep. 145.)

When he prepared the February 1, 2007 printout, Mr. Nerkowski adjusted the wheel sizes to the measured sizes because the newer software program defaults to 39 inch wheels if it is not adjusted. (Nerkow-ski Dep. 111.) Both event recorders had incorrect times and dates. (Nerkowski Dep. 68; 144.) The time and dates on the event recorders for AM-195 and AM-23, which were GE locomotives, were off due to a technical error in the event recorders. (Nerkowski Dep. 68.) During the time period of the accident, “GE locomotives were experiencing a date and time glitch in the transfer of information ... to the data recorder, which affected time and date only.” (Nerkowski Dep. 69.)

Generally, data recorded on a lead locomotive and a second locomotive should be identical. (Nerkowski Dep. 90.) However, a one-mph variance could occur due to differences in wheel size. (Nerkowski Dep. 90.) Train wheel size decreases over time due to wear and tear. (Nerkowski Dep. 80.)

Mr. Nerkowski testified in his deposition that the printouts showed AM-195 was traveling at 78 mph and AM-23 was traveling at 79 mph before the emergency brakes were applied. (Nerkowski Dep. 91.) After the emergency brakes were applied, the printout showed AM-195 was traveling at 58 mph, and AM-23 was traveling at 63 mph. (Nerkowski Dep. 92.) According to Mr. Nerkowski, the printouts showed that AM-195 was blowing its whistle at 15:38:34 through 15:38:54. (Nerkow-ski Dep. 100.)

The printouts indicate that the whistle on AM-195 was operated before and after the emergency brakes were applied. ( [Doc. 128] Pis. Exs. 1 and 6.) The data table indicates that the whistle was operated from 15 seconds before the emergency brakes were applied. ([Doc. 128] Pis. Ex. 6.)

On December 18, 2006, Defendants produced a CD containing the downloaded data for AM-195 and AM-23 to Plaintiffs. ([Doc. 127] Defs. Ex. D.)

Plaintiffs retained Allen Haley, Jr., Principal and Senior Rail Consultant of Strategic Transportation Services, to serve as an expert witness. Mr. Haley describes himself, inter alia, as a “multi-talented manager experienced in rail transportation” with “[o]ver 28 years experience in railroad operations, transportation consulting, track and equipment maintenance, management, labor relations and in working with regulatory agencies.” ([Doc. 133] Pis. Ex. A, “Haley Resume”.)

Mr. Haley has a high school diploma, an incomplete semester of college education, one week of classroom training in track maintenance at the University of Wisconsin, on-the-job training on the use of event recorders to investigate accidents, and other training relating to railroads and track safety standards. ([Doc. 125] Defs. Ex. B, “Haley Dep.” 47-49; 54-57.) Mr. Haley has served in a variety of positions, including Regional Transportation Manager, Regional Manager, and Operations Manager for Southern Pacific Railroad, as well as Superintendent and General Manager of the Texas-Mexican Railway. (Haley Resume.) From 2000 through the present, Mr. Haley has been a consultant with Strategic Transportation Services. (Haley Resume.)

Although Mr. Haley is a certified locomotive engineer, he has not operated trains on a regular basis and has never operated a passenger train or a train involved in an accident. ([Doc. 125] Defs. Ex. A, “Haley Dep.” 212-213.) Mr. Haley received on-the-job training on the use of event recorders to investigate accidents. (Haley Dep. 134.) However, Mr. Haley has not attended any training on the specifics of how event recorders work. (Haley Dep. 134.)

In his January 15, 2007 report, Mr. Haley referenced a list of cases in which he offered testimony. ([Doc. 125] Def. Ex. A, “Haley Report.”) However, such a list could not be located in the record. Mr. Haley’s resume reflects that he has provided expert testimony supporting a shipper’s claim to recover losses resulting from a rail carrier’s failure to provide consistent service levels and on hazardous materials regulations, and he has provided litigation support and expert reports on grade crossing accidents. (Haley Resume.)

In a May 7, 2007 affidavit, Mr. Haley stated that he “provided expert testimony by deposition in both State and Federal Court cases on event recorders and the graphs, analysis and date [sic] tables that they record.” ([Doc. 128] Pis. Ex. 3 “May 7, 2007 Affidavit.”) Mr. Haley testified in his deposition that he had been retained as an expert by the City of Muskogee to testify about grade separation at a railroad crossing. (Haley Dep. 46.)

In his report, Mr. Haley stated that he “will offer an expert opinion as to the quality or standard of care that both the BNSF and Amtrak practiced in identifying, managing and instituting corrective actions at this crossing ... [and] to deal with unsafe and hazardous conditions at this grade crossing.” (Haley Report 2.)

Mr. Haley stated in his report that Mr. Steiner, and possibly Mr. Estep, failed to maintain a close lookout to detect the approaching SUV. (Haley Report 5.) Mr. Haley also opined that BNSF and Amtrak were responsible for the actions of the Amtrak crew, and hazardous conditions existed at the North Farm Road crossing. (Haley Report 5-6.)

Mr. Haley explained in his report that the hazardous conditions consisted of trains operating up to 79 mph where the “approach to the crossing and the height of the grade crossing places the crossing service above the top of the line of sight of a driver observing the road surface in front of the vehicle as they approach the crossing, and the crossing’s location in a farming area suggests that much of the traffic is industrial traffic associated with the agricultural businesses in the area.” (Haley Report 6.)

According to the Haley Report, based on prior accidents or close calls, the railroads were on prior notice of a hazardous crossing which should have been closed, or the hazardous conditions corrected, and Defendants were negligent in continuing to operate trains at high speeds over the hazardous crossing without taking steps to eliminate or mitigate the hazardous conditions. (Haley Report 7.)

In his report, Mr. Haley took issue with the event recorders on the train. Mr. Haley observed in his report that “[e]vent recorder data produced by the railroad is currently only available in the compressed graphical view.” (Haley Report at 7.) At his deposition, Mr. Haley testified that he could not cite to any evidence to suggest that the recorders had not properly recorded the sequence of events leading up to the accident or that the data was intentionally manipulated or altered. ([Doc. 125] Def. Ex. B, “Haley Dep.” 136-138; 139; 237.) Mr. Haley observed in his report that “[e]vent recorder data produced by the railroad is currently only available in the compressed graphical view.” (Haley Report.) Mr. Haley did not directly analyze the data from the event recorders; he only reviewed printouts provided by Defendants. ([Doc. 133] Pis. Ex. A, “May 22, 2007 Affidavit.”)

According to Mr. Haley, the event recorder data indicated that the train approached the crossing at 79 mph, closing at the rate of approximately 116 feet per second. (Haley Report 7-8.) Mr. Haley’s reading of the printouts indicated that Mr. Steiner sounded the locomotive whistle, but that Mr. Steiner may not have sounded the whistle for the required distance, time, or pattern. (Haley Report 7.)

Mr. Haley opined that Mr. Steiner may have violated an operating rule by failing to sound the whistle 1,320 feet in advance of the crossing. (Haley Report 8.) However, Mr. Estep testified in his deposition that Mr. Steiner started sounding the whistle and ringing the bell right at the whistle board, which was 2,500 feet from the crossing. ([Doc. 75] Def. Ex. B, “Es-tep Dep. 48.”) According to Mr. Heikki-la’s reading of the event recorder data, approximately 1,430 feet in advance of the crossing, Mr. Steiner began sounding the whistle and continued to blow the whistle in the normal pattern until the collision. (Heikkila Report.)

Mr. Haley offers no factual support for his statement that Mr. Steiner failed to sound the whistle 1,320 feet before the crossing. The “1,320” number apparently originated with his citation to the General Code of Operating Rules, which requires sounding of whistle not less than 1/4 mile before the crossing. (Haley Report 7.)

Mr. Haley believed that, if proven that Mr. Steiner sounded the whistle 1,320 feet before the crossing, the decedents would have had only eleven seconds of warning before the locomotive entered the grade crossing. (Haley Report 8.) However, the record establishes that the whistle was sounded more than 1,320 feet in advance of the crossing. Mr. Haley acknowledges that the train was traveling 79 mph, or 116 feet per second. At that speed, it would have taken 21.55 seconds to travel 2,500 feet, consistent with Mr. Estep’s testimony, or 12.33 seconds to travel 1,430 feet as indicated by the printouts.

According to Mr. Haley, Defendants provided four separate printouts from event recorders on the locomotives on the train. (Haley Report 8.) The printout for the lead locomotive showed a date of March 20, 2000 and a time of 17:36. (Haley Report 8.) The printout for the second locomotive showed a date of March 20, 2001 and a time of 14:43. (Haley Report 8.) Mr. Haley pointed out that the dates and times on the printouts are both inconsistent with the date and time of the accident and inconsistent with each other. (Haley Report 8.) Mr. Haley also observed that the event recorder data for the other two locomotives on the train was not produced. (Haley Report 8.) Additionally, the underlying event recorder data, or “data table,” was not produced. (Haley Report 8.)

In his report, Mr. Haley opined that the event recorder data may have been altered or corrupted and is not representative of the train’s operation on March 21, 2003. (Haley Report 8.) Mr. Haley further opined that it was possible that data would show that Mr. Steiner and Mr. Estep failed to place the train “in emergency” immediately when he saw the SUV on the North Farm Road crossing. (Haley Report 8.)

At his March 21, 2007 deposition, Mr. Haley testified that he could not cite to any evidence to suggest that the recorders had not properly recorded the sequence of events leading up to the accident or that the data was intentionally manipulated or altered. (Haley Dep. 36-138; 139; 237.) Mr. Haley testified in his deposition that he had no proof that the event recorder data was manipulated and acknowledged that the discrepancies could be caused by a computer glitch. (Haley Dep. 138.)

Mr. Haley acknowledged that Mr. Steiner was documented as having completed the required training. (Haley Dep. 71.) Mr. Haley did not take exception to the classroom training of Mr. Steiner or Mr. Estep. (Haley Dep. 72.) Mr. Haley had no information that Mr. Steiner or Mr. Estep were not certified. (Haley Dep. 73.)

Mr. Haley opined that the crossing should be upgraded with lights and gates. (Haley Report.) This opinion is based upon the Railroad Highway Grade Crossing Handbook, which specifically provides that it “does not constitute a standard, specification, or regulation” on highway grade crossings. (Haley Dep. 150; 152.)

Mr. Haley identified the following factors as hazards at the North Farm Road Crossing: (1) high speed train operation combined with limited sight distance, (2) the approach to the crossing and the height of the grade places the crossing surface above or at the top of the line of sight of a driver observing the road surface in front of a vehicle as the driver approaches the crossing, and (3) the location in a farming area suggests that much of the traffic flow is agricultural. (Haley Report.)

Mr. Haley testified in his deposition that he did not measure any sight lines at the crossing. (Haley Dep. 26; 153; 156-160; 197.) Mr. Haley observed the sight distance as he approached the crossing in an automobile. (Haley Dep. 29.) Mr. Haley obtained no information regarding traffic count data at the crossing. (Haley Dep. 26-27; 150; 184-185.) Mr. Haley testified in his deposition that he is not an expert in accident reconstruction and he does not calculate speeds or stopping distances for vehicular traffic or delay time. (Haley Dep. 86; 102; 109; 182.)

Plaintiffs submitted an affidavit from Mr. Haley, dated April 5, 2007, in support of their Response in Opposition to Defendants’ Motion for Summary Judgment (Federal Preemption) and Plaintiffs’ Cross Motion for Sanctions. ([Doc. 88] Pis. Ex. A, “April 5, 2007 Affidavit.”) In the April 5, 2007 Affidavit, Mr. Haley stated that the data from the event recorders is inconsistent with the facts, incorrect, spoiled and unreliable. (April 5, 2007 Affidavit.)

Mr. Haley based this opinion on the inconsistencies between the recorded dates and times and the date and time of the accident. (April 5, 2007 Affidavit.) Mr. Haley observed that AM-195 traveled 5,243 feet before coming to a stop, while the initial printout for AM-23 traveled 4,637 feet before coming to a stop, a difference of 606 feet. (April 5, 2007 Affidavit.)

Mr. Haley recounted that additional printouts for these locomotives contained inconsistent dates and times. (April 5, 2007 Affidavit.) The additional printouts showed that AM-195 traveled 3,045 feet “after the train was placed in emergency” and that AM-23 traveled 3,028 feet after the train was placed in emergency, a variance of seventeen feet. (April 5, 2007 Affidavit.)

Mr. Haley opined that the data had been manipulated to reduce the variance and it was unclear how that manipulation had affected the indications speed, distance traveled or the proximity to the crossing in which the whistle was sounded. (April 5, 2007 Affidavit.) Based on these discrepancies, Mr. Haley concluded that any attempt to use the data would be futile because the data is incorrect and spoiled. (April 5, 2007 Affidavit.)

Plaintiffs submitted the May 7, 2007 Affidavit in support of their Response in Opposition to Defendants’ Motion for Summary Judgment: Federal Preemption of Claims Regarding Crew Training and Event Recorders and Plaintiffs’ Cross Motion for Sanctions. (May 7, 2007 Affidavit.)

In the May 7, 2007 Affidavit, Mr. Haley pointed out that a federal regulation, 49 C.F.R. § 229.135, requires that the lead locomotive of any train operating in excess of 30 mph must have an operational event recorder. (May 7, 2007 Affidavit.) Mr. Haley opined that, since the event recorders were not recording time and speed properly, the train should not have traveled in excess of 30 mph. (May 7, 2007 Affidavit.) According to Mr. Haley, if the train had been traveling at 30 mph, the stopping distance would have been 411 feet. (May 7, 2007 Affidavit.) Mr. Haley further opined that Defendants had not produced records establishing that Mr. Steiner and Mr. Estep were properly certified and trained, as required by federal regulations contained in 49 C.F.R. Part 240. (May 7, 2007 Affidavit.)

Plaintiffs submitted the May 22, 2007 Affidavit in support of their Response to Defendants’ Motion to Strike. (May 22, 2007 Affidavit.) In the May 22, 2007 Affidavit, Mr. Haley explained that, during his career, he had hands-on training in the downloading, use and analysis of event recorder data and that his training and experience had been put to practical use many times to ascertain the causes of accidents and derailments. (May 22, 2007 Affidavit.)

Mr. Haley acknowledged that he had no formal training on analyzing event recorders. (May 7, 2007 Affidavit.) He further explained that “[m]uch of the use of event recorder data in litigation does not require the expert to analyze the data, but simply to read the data presented in tabular format.” (May 22, 2007 Affidavit.) Mr. Haley stated that, using his experience, he can compare the data or multiple event recorders from the same train and detect anomalies that have, in the past, proven the manipulation of data or errors in the recording device. (May 22, 2007 Affidavit.) Mr. Haley stated that the analysis required basic math and problem solving skills and it was evident that the data was incorrect due to the discrepancies in the data. (May 22, 2007 Affidavit.)

Defendants’ expert witness concerning train operations, Brian Heikkila, stated in an affidavit that the event recorders operated in accordance with federal regulations. ([Doc. 127] Ex. A, “Heikkila Report.”) Mr. Heikkila explained that the event recorder data was processed using playback software provided by Wabtec Railway Electronics, which supplies the “Permanent Core Memory” module that is part of the “Integrated Function Control” event recorder system installed by GE, the locomotive manufacturer. (Heikkila Report.) Mr. Heikkila reviewed the printouts and the underlying electronic data and found them to be consistent. (Heikki-la Report.) Mr. Heikkila further opined that the event recorder data was accurate and was not altered or corrupted. (Heikk-ila Report.)

Mr. Heikkila stated that the indicated event recorder time is relative and an independent function on each locomotive. (Heikkila Report.) A difference between actual clock time and the indicated event recorder time does not constitute an inaccuracy in the underlying event recorder data, and does not imply that the underlying data is incorrect, spoiled, corrupted or manipulated. (Heikkila Report.)

The data from AM-195 indicates that the train stopped fifty-two seconds after initiation of emergency braking at time interval 15:38:57, speed was 78 mph (rounded to nearest mph) and emergency stopping distance was 3160 feet. (Heikkila Report.) The data from AM-23 indicates the train stopped fifty-two seconds after initiation of emergency braking at time interval 15:38:59, the speed was 79 mph (rounded to nearest mph), and emergency stopping distance was 3,143 feet. (Heikki-la Report.)

According to Mr. Heikkila, the contention that simultaneous speed variation of 5 mph existed between locomotives AM-195 and AM-23 during the emergency stop are incorrect. (Heikkila Report.) Mr. Heikki-la states that the event data must be compared in a proper context within the 52-second time interval that the stop occurred. (Heikkila Report.) When those intervals are properly compared, the difference in the data between the two locomotives is only 1-2 miles per hour. (Heikkila Report.)

Locomotive event recorders typically capture axle revolution data. (Heikkila Report.) The event recorder playback software requires “wheel size” information to translate the axle revolution data into speed and distance traveled. (Heikkila Report.) An increase in wheel size translates into a larger wheel circumference which, in turn, results in a greater distance covered with each revolution and hence a higher velocity. (Heikkila Report.) The use of a 39.75 inch wheel size entry in the playback software yields a higher speed and longer stopping distance than the use of the 39 inch default wheel size. (Heikki-la Report.) According to Mr. Heikkila, the event recorder data downloaded from the train, and produced in this case, is reliable and accurately recorded train speed, distance traveled, and when the whistle and bell were sounded. (Heikkila Report.)

According to Mr. Heikkila’s reading of the event recorder data, approximately 1,430 feet in advance of the crossing, Mr. Steiner began sounding the whistle and continued to blow the whistle in the normal pattern until the collision. (Heikkila Report.)

Approximately 164 feet in advance of the North Farm Road crossing, Mr. Steiner initiated emergency response and train braking. (Heikkila Report.) The stopping distance of the train traveling at 78 mph was approximately 3,160 feet. (Heikkila Report.) If the train were to stop 3,160 feet from the point of impact and avoid a collision entirely, the emergency brakes would have to be applied more than 27 seconds away from the North Farm Road crossing. (Heikkila Report.)

Defendants retained Brian Charles as an expert witness in the field of accident reconstruction. ([Doc. 97] Defs. Ex. E, “Charles Report.”) The Charles Report places the SUV 15 feet from the train tracks at 3 seconds prior to the collision, and 50 feet from the train tracks at 5 seconds prior to the collision. (Charles Report.)

According to Mr. Charles, the SUV brake lights were not on at the time of impact. (Charles Report.) The SUV had encroached onto the crossing and was approximately 2.5 feet past the west rail when it was struck by the front of the locomotive. (Charles Report.) There are no trees, objects, or terrain features that pose an obstruction to visibility of an approaching southbound train. (Charles Report.) The tracks are elevated relative to SR 313. (Charles Report.) The approach provides a completely wide-open view to the north. (Charles Report.)

Based on Mr. Charles’ calculations, Mr. Haley testified in his deposition that the engineers were under no obligation to take action (ie., reduce throttle or apply emergency brakes) until the SUV passed the stop sign, which is 15 feet from the railroad tracks. (Haley Dep. 171-173; 84-85.) The SUV was traveling at approximately 4 mph, or 5.866 feet per second, meaning approximately 3 seconds or less passed between the time the SUV passed the stop sign and entered the railroad crossing. (Haley Dep. 125.) Thus, the engineers had no more than 3 seconds in which to take action to avoid the collision. (Haley Dep. 88; 98.)

There were two prior accidents at the North Farm Road crossing. (Haley Dep.) The first accident occurred in 1976, resulted in no injuries, and involved a vehicle that stalled on the tracks. (Haley Dep. 186.) The second accident occurred in 1996. ([Doc. 97] Defs. Undisputed Fact 11.) At the time of the 1996 accident, the North Farm Road crossing did not have a stop sign; it only had a crossbuck sign. ( [Doc. 86] Pls. Resp. Br., Exs. B and C.)

II. Standards.

A. Applicable law.

In this diversity case, state law governs substantive issues, while federal law applies to procedural questions. Burnham v. Humphrey Hospitality Reit Trust, Inc., 403 F.3d 709, 712 (10th Cir.2005) (citing Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)). In applying state substantive law, this Court must follow the most recent decisions of the state’s highest court. Wade v. Emcasco Ins. Co., 483 F.3d 657, 666 (10th Cir.2007) (citations omitted). “Where no controlling state decision exists, the federal court must attempt to predict what the state’s highest court would do.” Id. In doing so, this Court may seek guidance from decisions rendered by lower state courts, and “the general weight and trend of authority” in the relevant area of law. Id. (internal quotations omitted).

With respect to procedural matters, such as the admissibility of evidence or the propriety of summary judgment, federal law applies. See Eck v. Parke, Davis & Co., 256 F.3d 1013, 1016 (10th Cir.2001).

B. Admissibility of Expert Testimony.

The admissibility of expert testimony is governed by Federal Rule of Evidence 702. The party proffering the expert testimony bears the burden of proving by a preponderance of the evidence that the expert’s testimony is admissible pursuant to Rule 702. See, e.g., Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 970 (10th Cir.2001) (citations omitted).

Rule 702 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Fed.R.Evid. 702.

As interpreted by the Supreme Court, Rule 702 requires that an expert’s testimony be both reliable, in that the witness is qualified to testify regarding the subject, and relevant, in that it will assist the trier in determining a fact in issue. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589-92, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). To assist in the assessment of reliability, the Court in Daubert identified four nonexclusive factors that a trial court may consider: (1) whether the theory at issue can be and has been tested; (2) whether the theory has been subjected to peer review and publication; (3) whether there is a known or potential rate of error and whether there are standards controlling the methodology’s operation; and (4) whether the theory has been accepted in the relevant scientific community. Daubert, 509 U.S. at 593-94, 113 S.Ct. 2786.

The Court has emphasized that this list is neither definitive nor exhaustive and that the district court has wide discretion, both in deciding how to assess an expert’s reliability and in making a determination of that reliability. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141-42, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). Accordingly, a trial court’s focus generally should not be upon the precise conclusions reached by the expert, but on the methodology employed in reaching those conclusions. Daubert, 509 U.S. at 595, 113 S.Ct. 2786.

The Court has described the district court’s role in determining the admissibility of expert opinions as a “basic gatekeep-ing obligation.” Kumho Tire, 526 U.S. at 147, 119 S.Ct. 1167. The objective of the gatekeeping obligation is “to ensure the reliability and relevancy of expert testimony .... 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.

If the reliability prong is met, the court then considers other non-exclusive factors to determine whether the testimony will assist the trier of fact: (1) whether the testimony is relevant; (2) whether it is within the jury’s common knowledge and experience; and (3) whether it will usurp the juror’s role of evaluating a witness’ credibility. United States v. Rodriguez-Felix, 450 F.3d 1117, 1122 (10th Cir.2006) (quotations omitted). Essentially, the question is “whether [the] reasoning or methodology properly can be applied to the facts in issue.” Daubert, 509 U.S. at 593, 113 S.Ct. 2786.

The party proffering the expert opinion must demonstrate both that the expert has employed a method that is scientifically sound and that the opinion is “based on facts which enable [the expert] to express a reasonably accurate conclusion as opposed to conjecture or speculation.” Goebel v. Denver and Rio Grande W. R. Co., 346 F.3d 987, 991 (10th Cir.2003) (quoting Gomez v. Martin Marietta Corp., 50 F.3d 1511, 1519 (10th Cir.1995)).

C. Summary Judgment Standard.

Summary judgment may be granted only when “there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). Summary judgment is appropriate “only where ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” Fuerschbach, 439 F.3d at 1207 (quoting Rule 56(c)). The evidence, and all reasonable inferences drawn therefrom, must be viewed in the light most favorable to the nonmoving party. Id.

The movant bears the initial burden of demonstrating the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir.1998). If this burden is met, the nonmovant must “set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant.” Id. (citations omitted). “To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein.” Id.

The nonmovant’s burden is more than a simple showing of “some metaphysical doubt as to the material facts.” Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). A party relying on only conclusory allegations cannot defeat a properly supported motion for summary judgment. White v. York Int’l Corp., 45 F.3d 357, 363 (10th Cir.1995). The non-movant’s “evidence, including testimony, must be based on more than mere speculation, conjecture, or surmise.” Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir.2004). Only admissible evidence may be reviewed and considered on summary judgment. Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1541 (10th Cir.1995).

III. Discussion.

A. Defendants’ Motion to Strike Affidavit of Allen Haley and to Exclude Opinions and Defendants’ Motion to Strike Second Affidavit of Allen Haley and to Exclude New Opinions.

1. Mr. Haley is not qualified to testify as an expert witness regarding the integrity of data downloaded from the event recorders or the effectiveness of the event recorders.

Defendants argue that Mr. Haley is not qualified to testify as an expert witness regarding the integrity of the event recorder data or the effectiveness of the event recorders. Plaintiffs respond that Mr. Haley qualifies because he has been involved in the railroad industry for the past thirty years.

Rule 702 explicitly provides that expert status may be based on “knowledge, skill, experience, training, or education.” Fed.R.Evid. 702. The Supreme Court has stated that a district court “may focus upon personal knowledge or experience” of a proffered expert. Kumho Tire, 526 U.S. at 150, 119 S.Ct. 1167. However, “a witness ‘relying solely or primarily on experience’ must ‘explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.’ ” United States v. Fredette, 315 F.3d 1235, 1239 (10th Cir.2003) (quoting Advisory Committee Note to the 2000 Amendments of Rule 702). Thus, the proponent of expert testimony must show that the witness’ experience, and resultant specialized knowledge, is sufficiently related to the issues and evidence.

In assessing a witness’ qualifications, the dispositive question is whether the issue at hand is “within the reasonable confines” of the witness’ subject area. Ralston, 275 F.3d at 970. Where alleged expertise with regard to other aspects of a field give a proffered expert no special insight into the issues of the case, such alleged expertise does not qualify the witness as an expert. Fredette, 315 F.3d at 1239; see also Lantec, Inc. v. Novell, Inc., 306 F.3d 1003, 1025-26 (10th Cir.2002) (noting that expert was not qualified to testify where he attempted to spin limited personal experience as a consultant into evidence of worldwide product market).

Plaintiffs have not shown how Mr. Haley’s experience with railroads forms a sufficient basis for his opinions concerning the integrity of data downloaded from the event recorder or the operational effectiveness of the event recorders. The fact that a witness has general experience in a field does not necessarily qualify the witness as an expert. See LifeWise Master Funding v. Telebank, 374 F.3d 917, 928 (10th Cir.2004) (affirming exclusion of witness who was not qualified as an expert); TK-7 Corp. v. Estate of Barbouti, 993 F.2d 722, 728 (10th Cir.1993) (same); Broadcort Capital Corp. v. Summa Med. Corp., 972 F.2d 1183, 1195 (10th Cir.1992) (holding that witness with some general experience and education in the field lacked sufficient qualifications to qualify as expert in the area).

This concern is underscored by the conflict between Mr. Haley’s and the uncontested facts as noted supra at page 1197. The flaws in his report, combined with the fact that Mr. Haley has no training or experience on the specifics of how event recorders work, establish that Mr. Haley is not qualified to testify as an expert witness on these subjects. Mr. Haley’s opinion testimony on the topics of integrity of the event recorder data or the effectiveness of the event recorder is inadmissible under Rule 702.

2. Mr. Haley’s opinions regarding the integrity of data downloaded from the event recorders or the effectiveness of the event recorders is unreliable.

Mr. Haley’s opinions are based on printouts from the event recorders. Mr. Haley admitted in his May 22, 2007 Affidavit that he did not directly analyze the data. While there are discrepancies in the dates, times and distances on the printouts, it is unclear as to how Mr. Haley arrived at his conclusions that the data is corrupted or that the devices were not functional before the accident.

The touchstone of reliability is “whether the reasoning or methodology underlying the testimony is scientifically valid.” Daubert, 509 U.S. at 590, 113 S.Ct. 2786; see also Truck Insurance Exchange v. MagneTek, Inc., 360 F.3d 1206, 1210 (10th Cir.2004). The court must reject unsupported speculation as well as testimony that is based on unreliable methodology. See Ammons v. Aramark Uniform Servs., Inc., 368 F.3d 809, 815-16 (7th Cir.2004); Brown v. Am. Honda Motor Co., 939 F.2d 946, 952 (11th Cir. 1991) (concluding that statistics, “without an analytic foundation, are virtually meaningless.”).

Mr. Haley explained in his May 22, 2007 Affidavit that he can compare the data from multiple event recorders from the same train and detect anomalies that have in the past proven to be the manipulation of data or errors in the recording device. However, Mr. Haley offered no methodology to support his analytical leaps from discrepancies in the printouts to corruption of the data.

“Neither Daubert nor the Federal Rules of Evidence “ ‘require[ ] a district court to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert.’ ” ” Norris v. Baxter Healthcare Corp., 397 F.3d 878, 886 (10th Cir.2005) (quoting General Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997)). “A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.” Id. In this case, the analytical gaps in Mr. Haley’s opinions are too broad to satisfy the requirements of Daubert and Rule 702.

Mr. Haley’s reliance on past instances of manipulation of data in unrelated cases is not probative that Defendants manipulated the data in this case. Such opinions are pure speculation because they are not based on sufficient facts or data. These opinions must be excluded as unreliable under Fed.R.Evid. 702. See Gibson v. Norfolk S. Corp., 878 F.Supp. 1455, 1460 (N.D.Ala.1994) (affirming a district court’s striking of opinions on whether warning lights and signals were working because the testimony was based solely on conjecture and speculation rather than competent evidence).

Moreover, Plaintiffs acknowledge in their brief that “Mr. Haley was pointing out the obvious” with respect to discrepancies in the information contained in the printouts. (Doc. 133 at 4.) The purpose of expert testimony is to assist the trier of fact with scientific, technical, or other specialized knowledge, not to point out the obvious: See Fed. R. Civ. 702. Where expert testimony is offered on an issue that a jury is capable of assessing for itself, it is within the trial court’s discretion to exclude such evidence. Thompson v. State Farm Fire and Cas. Co., 34 F.3d 932, 941 (10th Cir.1994).

Mr. Haley acknowledged that he employed only basic math and problem solving skills in rendering his opinions concerning the discrepancies in the printouts from the event recorders. The jury can assess the discrepancies using the same types of skills. To the extent that Mr. Haley’s opinions are within the jury’s common knowledge and experience, they are inadmissible under Rule 702. See Rodriguez-Felix, 450 F.3d at 1122.

Plaintiffs have not established that Mr. Haley’s opinions concerning the integrity of data downloaded from the event recorders and the effectiveness of the event recorders' before the accident are reliable. Mr. Haley’s proposed testimony on these subjects does not rest on a reliable foundation and would not assist the jury. Accordingly, Mr. Haley’s opinions on these subjects are inadmissible.

3. Mr. Haley’s opinions concerning the alleged responsibility of BNSF and Amtrak for the actions of the Amtrak crew are inadmissible legal conclusions.

Rule 704(a) permits expert testimony that “embraces an ultimate issue to be decided by the trier of fact.” Fed. R.Evid. 704(a). However, an expert may not state his opinion as to legal standards, nor may he state legal conclusions drawn by applying the law to the facts. Okland Oil Co. v. Conoco, Inc., 144 F.3d 1308, 1328 (10th Cir.1998) (citing A.E. ex rel. Evans v. Indep. Sch. Dist. No. 25, 936 F.2d 472, 476 (10th Cir.1991)). Expert testimony of this type is often excluded on the grounds that it states a legal conclusion, usurps the function of the jury in deciding the facts, or interferes with the function of the judge in instructing the jury on the law. United States v. Simpson, 7 F.3d 186, 188 (10th Cir.1993). Such expert testimony does not assist the jury to “understand the evidence or to determine a fact in issue.” Fed. R.Evid. 702.

In his report, Mr. Haley stated that both BNSF and Amtrak were legally responsible for the actions of the Amtrak crew. When an expert merely states an opinion on an ultimate issue without adequately exploring the criteria upon which the opinion is based, the jury is provided with no independent means by which it can reach its own conclusion or give proper weight to the expert testimony. Cf. Karns v. Emerson Elec. Co., 817 F.2d 1452, 1459 (10th Cir.1987) (expert explained bases for opinion in sufficient detail to allow jury to make independent judgment).

The challenged opinions amount to legal conclusions that might interfere with this Court’s function of instructing the jury. Because the jury will be properly instructed on the legal standards governing liability, Mr. Haley’s opinions on this subject are not helpful to the trier of fact. Thus, Mr. Haley’s opinions concerning the alleged responsibility of BNSF and Amtrak for the actions of the Amtrak crew are inadmissible.

4. Mr. Haley’s opinions concerning the operation of the locomotive whistle and existence of hazardous conditions at the crossing.

Defendants contend Mr. Haley’s opinions on the alleged existence of hazardous conditions at the crossing and operation of the train whistle are unreliable because they are based on an unauthorita-tive handbook, they conflict with decisions Mr. Haley made in his capacities as Supervisor of Transportation and General Manager of the Texas-Mexiean Railroad, they lack factual foundation, and they fail to account for the conflicting evidence. None of the grounds advanced by Defendants constitute a valid reason for excluding Mr. Haley’s opinions on these topics. Although I am underwhelmed by the persuasive value of Mr. Haley’s opinions, Defendants objections on these points go to weight and not admissibility.

Mr. Haley’s resume includes considerable background in railroad operations and safety. Mr. Haley’s work experience adequately qualifies him to testify as an expert on the issue of whether the train crew properly operated the whistle. With respect to this issue, Mr. Haley’s testimony is relevant, likely to assist the trier of fact, and states more than just lay observations. Thus, Mr. Haley’s opinions on whether the train crew properly operated the whistle will not be excluded as unreliable under Rule 702.

Ruling on the admissibility of Mr. Haley’s opinions on whether dangerous conditions existed at the crossing that warranted modification of the crossing is reserved pending a Dauberb hearing.

5. The opinions contained in the April 5, 2007 and May 7, 2007 Affidavits that were neither included in Mr. Haley’s report, nor addressed at his deposition, are stricken pursuant to Fed.R.Civ.P. 26.

Defendants move to strike the April 5, 2007 and May 7, 2007 Affidavits to the extent that the Affidavits contain opinions that were neither included in the Haley Report, nor addressed at Mr. Haley’s deposition. Plaintiffs neither moved to supplement the report, nor contradicted Defendants’ assertions that the Affidavits contain new opinions that are substantially different from the opinions rendered in the Haley report and addressed at his deposition.

Fed.R.Civ.P. 26(a)(2)(B) requires that an expert witness report “contain a complete statement of all opinions to be expressed and the basis and the reasons therefor” to facilitate discovery. Id. “Although Fed.R.Civ.P. 26(e) requires a party to ‘supplement or correct’ disclosure upon information later acquired, that provision does not give license to sandbag one’s opponent with claims and issues which should have been included in the expert witness’ report.” Better ex rel. Better v. United States, 221 F.R.D. 696, 701 (D.N.M.2003) (quotation omitted).

The new opinions contained in the April 5, 2007 and May 7, 2007 Affidavits are substantially different from Mr. Haley’s earlier opinions, and, in effect, changed the theory of the case. Plaintiffs submitted the April 5, 2007 Affidavit in support of their Response in Opposition to Defendants’ Motion for Summary Judgment (Federal Preemption) and Plaintiffs’ Cross Motion for Sanctions. ([Doc. 88] Pls. Ex. A, “April 5, 2007 Affidavit.”)

In the April 5, 2007 Affidavit, Mr. Haley explained the basis for his opinion that the data from the event recorders is inconsistent with the facts, incorrect, spoiled and unreliable. (April 6, 2007 Affidavit.) Mr. Haley based this opinion on the inconsistencies between the recorded dates and times and the date and time of the accident. (April 5, 2007 Affidavit.) Mr. Haley observed that AM-195 traveled 5,243 feet before coming to a stop, while the initial printout for AM-23 traveled 4,637 feet before coming to a stop, a difference of 606 feet. (April 5, 2007 Affidavit.)

Mr. Haley recounted that additional printouts for these locomotives contained inconsistent dates and times. (April 5, 2007 Affidavit.) The additional printouts showed that AM-195 traveled 3,045 feet “after the train was placed in emergency” and that AM-23 traveled 3,028 feet after the train was placed in emergency, a variance of seventeen feet. (April 5, 2007 Affidavit.)

Mr. Haley opined that the data had been manipulated to reduce the variance a