Court Limits Testimony of Non-Retained Expert in BNSF Workplace Injury Case
Posted on July 28, 2025 by Expert Witness Profiler
In November 2022, while working as a BNSF intermodal equipment operator, Taylor A. Campbell fell several feet from a railcar ledge while attempting to lock a stuck inter-box connector (IBC). No one witnessed the incident. Campbell blamed the fall on BNSF’s failure to ensure a safe working environment.
Fred Reinke, a BNSF manager, had developed and taught the training program Campbell allegedly underwent, but he did not personally train him. That role fell to BNSF employee Mark Knepel.
In April 2025, BNSF disclosed Fred Reinke as a non-retained expert under Rule 26(a)(2)(C). He was expected to testify about Campbell’s training, adherence to safety rules, actions during the incident, and the condition of his equipment. BNSF based his testimony on his industry experience, supervisory role, and inspection of the equipment.
Campbell moved to exclude the testimony, arguing that Fred Reinke relied on hearsay and lacked personal knowledge. BNSF maintained that Reinke’s testimony was admissible based on his expertise.
Automotive Rail Operations Expert
Fred Reinke was a manager at BNSF. Reinke has experience developing and teaching the training program that Campbell purportedly participated in when he began his employment at BNSF. Reinke has also previously surveyed various BNSF intermodal employees over time to verify they have received consistent training.
Discussion by the Court
The Court applied Federal Rule of Evidence 702, which permits expert testimony if the witness is qualified and the testimony is relevant, reliable, and based on sufficient facts and methods. Quoting Daubert, the Court emphasized its gatekeeping role to ensure that expert opinions are not speculative and are grounded in sound methodology. The Court clarified that while cross-examination is the proper tool for challenging shaky but admissible testimony, it may exclude opinions based solely on the expert’s say-so or hearsay.
Reinke’s Qualifications and Permissible Testimony
The Court acknowledged that Campbell did not dispute Reinke’s qualifications to testify about the general structure and content of BNSF’s standardized training program. It found Reinke competent to describe how BNSF typically trained intermodal equipment operators and what the program expected trainers to convey. This fell within his specialized knowledge and direct experience.
Objections to Reinke’s Testimony
Campbell moved to exclude Reinke’s opinions on four specific points: (1) whether Knepel properly trained him, (2) what he was actually told or instructed to do, (3) whether he used excessive force that led to his fall, and (4) whether he violated BNSF safety rules. The Court found that Reinke had no personal knowledge of these matters and had formed his opinions based on case materials and a post-incident conversation with Knepel. Because Reinke was not present during the training or the fall, his testimony on these issues lacked a sufficient factual basis.
Limits on Non-Retained Expert Testimony
The Court emphasized that as a non-retained expert under Rule 26(a)(2)(C), Reinke could not offer opinions based on information obtained solely in anticipation of litigation. While experts may sometimes rely on hearsay if it is customary in their field, they must apply their expertise to form an independent judgment. The Court concluded that Reinke acted more as a conduit for testimonial hearsay than as an expert applying independent analysis.
Conclusion and Ruling
The Court held that Reinke could testify about the general content and structure of BNSF’s training program and how trainers typically implemented it. However, it barred him from opining on the specific training Campbell received, the circumstances of his fall, or any alleged violation of safety rules. The court clarified that only Knepel, as a lay witness with firsthand knowledge, could testify about what he personally observed during Campbell’s training.
Held
The Court granted in part and denied in part Plaintiff Campbell’s motion to exclude the testimony of Defendant BNSF Railway Company’s expert witness, Fred Reinke.
Key Takeaway:
A non-retained expert like Fred Reinke may testify about general company practices and standardized training based on personal experience, but cannot offer opinions about a specific employee’s training or conduct unless based on firsthand knowledge. Courts strictly limit non-retained experts to what they directly observed or knew prior to litigation.
Case Details:
| Case Caption: | Campbell V. Bnsf Railway Company |
| Docket Number: | 2:24cv608 |
| Court Name: | United States District Court, Washington Western |
| Order Date: | July 7, 2025 |
