THETHE BULLETINBULLETIN March 2018 March 2018
VOL. 11 No. 1 VOL. 11 No. 1 www.aargcc.org www.aargcc.org
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TABLE OF CONTENTS
Publications Committee Members ...... 3
New Agents Committee Members ...... 4
General Claims Conference Officers ...... 5
IICA Administrative Committee Members ...... 6
General Claims Conference Committee Chairs ...... 7
Past Chairpersons ...... 8
Chairperson’s Quarterly Perspective ...... 9
Personalities: Vince Staten – CN ...... 10
Keeping Track: Gene Pandlis – Norfolk Southern Corporation ...... 11
Meet Some of Our Newest Members ...... 12
Members Moving Up (Promotions) ...... 14
General Claims Conference Meeting Announcement (Oct 2018) ...... 15
Basic and Advanced Railroad Claims Schools (May 2018) ...... 16
Trial Summaries ...... 17
New Claim Agents’ Forum – A Perspective on Claims Work ...... 20
AAR/RRB Committee Report ...... 22
Don Lord Writing Competition Information (2018) ...... 24
Don Lord Writing Competition – Second Place (2017) – Terri Kwasny
Writing Submission: “The ADA, ADAAA and Reasonable Accommodations” ...... 26
Looking Back: “Architects of Truth.” March 1960) ...... 34
Case Notes by Stuart A. Schwartz, Legal Editor
TRES — Struck by Train — Summary Judgment (Charles Niles v. Pan Am Railways, Inc.) ...... 39
XING — Private Crossing — Summary Judgment (Sarah Del Seronde et al. v. BNSF Railway Company) ...... 41
FELA — Motor Vehicle Accident — Summary Judgment (Robert Houser v. Norfolk Southern Railway Company) ...... 48
FELA — Occupational Injury — Summary Judgment (Earl Smith v. CSX Transportation, Inc.) ...... 55
XING — Wrongful Death — Summary Judgment (Michael Todd Ryder et al. v. Union Pacific Railroad Company) ...... 61
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MISC — Mesothelioma — Motion to Preserve Evidence (Patrick Jack & Leslie Jack v. Asbestos Corporation Ltd.) ...... 69
FELA — Motor Vehicle Accident — Summary Judgment (Jeffrey Walters v. CSX Transportation, Inc.) ...... 73
XING — Motion to Disqualify Plaintiffs’ Counsel (Starr Swearingen Waneck, et al., v. CSX Transportation, Inc. et al.) ...... 76
FRSA — Interference with Medical Treatment — Petition for Review (Grand Trunk Western Railroad Co. v. U.S. Department of Labor) ...... 80
Advertisers Index ...... 87
Advertising and Subscription Information ...... 88
Help Keep the Claims Personnel Directory Current ...... 90
The Bulletin Mission Statement, Cover Photo Credit, and Caption ...... 91
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Publications Committee
CHAIRPERSON LEGAL EDITOR MANAGING EDITOR Terry Richey Stuart A. Schwartz Jim Swan Regional Manager Claims Senior General Attorney Manager Training Norfolk Southern Corporation Norfolk Southern (Ret.) Union Pacific (Ret.) 425 Holiday Drive 2224 Mt. Vernon St. 18416 Atlas Street Pittsburgh, PA 15220 Philadelphia, PA 19130 Omaha, NE 68130 [email protected] [email protected] [email protected]
COMMITTEE MEMBERS
Jeff Beck Dale Cisecki Tasha Howell Manager Risk Management Manager General Claims Senior Claim Agent Union Pacific Railroad Canadian Pacific Railway Norfolk Southern Corporation 10031 Foothills Blvd. Suite 920, 401 - 9th Avenue 2040 E. 106th St. Roseville, CA 95747 Calgary, AB T2P 4Z4 Chicago, IL 60617 [email protected] [email protected] [email protected]
Alan K. Mettert Shelly Molaschi Lorri Savidge Claim Agent Senior Claims Specialist Claims Manager Norfolk Southern Corporation Amtrak BNSF Railway Company 8111 Nelson Rd. 1001 Loyola Avenue 201 North 7th Street Fort Wayne, IN 46803 New Orleans, LA 70113 Lincoln, NE 68508 [email protected] [email protected] [email protected]
Russell L. Schanlaub Michael Schmidt Jeri Wright Mgr. Field Investigations II District Claims Rep. Claim Agent CSX Transportation, Inc. Canadian Pacific Railway Kansas City Southern 1700 167th Street 11306 Franklin Avenue, 4601 Hilry Huckaby Ave. Calumet City, IL 60409 Franklin Park, IL 60131 Shreveport, LA 71107 [email protected] [email protected] [email protected]
Send articles for publication, communications, e.g., personnel changes, changes of address, requests for subscriptions, etc. to the Managing Editor. Articles submitted for publication are subject to the editorial license of the editors. The articles, information, and opinions set forth in this publication are not necessarily accepted or adhered to by any particular railroad, its management, the General Claims Conference, or the Association of American Railroads. This information is disseminated for the purpose of promoting thought and interest in topics related to the railroad industry. ______© Copyright 2018 AAR General Claims Conference All rights reserved including the right of reproduction in whole or in part in any form.
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New Agents Committee
Brian DiMaio (Chair) Jessica DeLaRosa Evan Griffin Mgr. Field Investigations I Claim Representative Claim Agent CSX Transportation, Inc. BNSF Railway Company Kansas City Southern 116B Druid Street 3611 W. 38th Street 201 Industrial Park Drive Jacksonville, FL, 32254 Chicago, IL 60632 Pearl, MS 39208 [email protected] [email protected] [email protected]
James Higgins Jeff Rinker Vince Staten Claim Agent Manager Claims & Litigation Risk Mitigation Officer Norfolk Southern Corporation Canadian Pacific Railway CN 4860 W 150th Street 3200 Railroad Ave. 2351 Hickory Avenue Cleveland, OH 44135 Davenport, IA 52802 Harahan, LA 70123 [email protected] [email protected] [email protected]
William Underwood Risk Management Representative Union Pacific Railroad 100 North Broadway, Ste. 1500 St. Louis, MO 63102 [email protected]
Mission Statement
Serve as a resource for the AAR Publications Committee and the railroad claims industry by submitting articles and features for publication in The Bulletin. Act as a point of contact for those new to the industry to help stay connected to some of the newest thoughts and ideas for the greater good of the railroad claims field. Promote The Bulletin to groups and individuals within the railroad claims industry and those that support it.
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General Claims Conference Officers Association of American Railroads 2017-2018 Term
Chairperson 1st Vice Chairperson 2nd Vice Chairperson Brenda Gunn Jack Elmore Greg Simmons Senior Risk Manager Assistant Vice President Dir. Casualty Management CN Kansas City Southern Canadian Pacific Railway Homewood, IL Kansas City, MO Minneapolis, MN
Executive Secretary Treasurer Pam Nwosu Lee A. Miller Paralegal Director Risk Management AAR CSX Transportation, Inc. Washington, DC Brentwood, TN
Executive Committee Members
G. D. Aughenbaugh (CSXT) Chad Barron (CP) Paris Davis-Reed (AMT) (904) 366-5492 (608) 742-6910 (202) 906-2332 (904) 245-2513 fax (608) 745-1294 fax (202) 906-2019 fax [email protected] [email protected] [email protected]
Jack F. Elmore (KCS) J. Robert Fender (NS) Brenda L. Gunn (CN) (816) 983-1356 (757) 823-5418 (708) 332-6782 (816) 983-1625 fax (757) 823-5289 fax (708) 332-4349 fax [email protected] [email protected] [email protected]
Lee A. Miller (CSXT) Lee Myers (UP) Catherine Price (UP) (615) 371-6321 (402) 544-1260 (402) 544-6020 (904) 245-2373 fax (402) 501-2458 (402) 997-4100 [email protected] [email protected] [email protected]
Gregory Simmons (CP) Mary Wallenfang (CN) Robert A. Wells (NS) (612) 904-6317 (920) 965-7231 (757) 629 - 2871 (612) 904-6104 fax (920) 965-1646 fax (757) 823 - 5289 fax [email protected] [email protected] [email protected]
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Intra-Industry Claims Agreement 2017-2018 Officers
Chairperson 1st Vice Chairperson Eric Hegi - BNSF Jack Elmore - KCS
INTRA-INDUSTRY CLAIMS AGREEMENT ADMINISTRATIVE COMMITTEE MEMBERS
William J. Harden Lee Miller Lee Myers Assistant General Manager Director Risk Management AVP Risk Management Norfolk Southern Corporation CSX Transportation Union Pacific Railroad Three Commercial Place 5200 Maryland Way, Ste. 350 1400 Douglas Street, #1510 Norfolk, VA 23510 Brentwood, TN 37027 Omaha, NE 68179
Gregory Simmons Bob Totra Mary Wallenfang Dir. Casualty Management General Claims Manager Risk Mitigation Manager Canadian Pacific-Soo Dist. Alton and Southern Railroad CN 1997 Sloan Place, Suite 17 1000 South 22nd Street 503 12th Avenue St. Paul, MN 55117 East St. Louis, IL 62207 Green Bay, WI 54303
Robert A. Wells General Manager Norfolk Southern Corporation Three Commercial Place Norfolk, VA 23510
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General Claims Conference Committee Chairs 2017 - 2018
Auditing: John Busse (UP) Education: Catherine Price (UP) Evidence Preservation/Technology Committee: J. Rob Fender (NS) IICA: Eric Hegi (BN) Nominating and By-Laws: Eric Hegi (BN) Occupational: Rosa Richmond (AMT) Publications: Terry Richey (NS) RRB Liaison: Will Harden (NS)
Railroad Specialists Areas of Expertise Ed McAndrews [email protected] FELA CATASTROPHIC INJURY LIABILITY INSURANCE Tim McAndrews MEDICARE [email protected] TOXIC RELEASE TRAINING 18 Benjamin West Avenue WORKERS’ Swarthmore, PA 19081 COMPENSATION 610-543-1819
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General Claims Conference Past Chairpersons
Don C. Lord – CP (1977-1978) Gilbert F. Joyce – Amtrak (1995-1996)
George L. King – UP (1978-1979) Gayla L. Fletcher – UP (1996-1997)
Burton R. Howard – SP (1978-1979) Paul R. Hoferer – BNSF (1997-1998)
W. L. Millwood Jr. – SR (1979-1980) Yves Drouin – CN (1998-1999)
Robert J. Murphy – BN (1980-1981) Tommy Plasha – NS (1999-2000)
Gene E. Lewis – NW (1981-1982) Rodney S. Tatum – KCS (2000-2001)
J. J. Hannigan – Amtrak (1982-1983) C. E. Mandolia – Amtrak (2001-2002)
Jerry Lefebrve – CP (1983-1984) Roger L. Schrenk – CP (2002-2003)
R. D. Eschenburg – ATSF (1984-1985) Dennis R. Lynch – CSXT (2003-2004)
Walter K. Hunt Jr. – CSXT (1985-1986) Rick A. Rivera – UP (2004-2005)
Ray D. Pilgrim – SBD (1985-1986) Rick G. Lifto – BNSF (2005-2006)
Floyd H. Parker – SP (1986-1987) Robert A. Wells – NS (2006-2007)
Jeff A. Porter – UP (1987-1988) Mary Wallenfang – CN (2007-2008)
George A. Moore – CP (1988-1989) Jack Hamer – KCS (2008-2010)
Kenneth I. Coy – BN (1989-1990) Greg Simmons – CP (2010-2011)
Thomas E. Eason – CR (1990-1991) Greg Temple – Amtrak (2011-2012)
John S. Bishof Jr. – CNW (1991-1992) Jack Elmore – CSXT (2012-2013)
Harry A. Joseph – CN (NA) (1992-1993) Rick A. Rivera – UP (2013-2014)
Henry D. Light – NS (1993-1994) Eric Hegi – BNSF (2014-2015)
Tommy Plasha – NS (1993-1994) Robert A. Wells – NS (2015-2016)
J. Ed Codd – CSXT (1994-1995) Eric Hegi – BNSF (2016-2017)
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Chairperson’s Quarterly Perspective
I hope everyone has had the opportunity to reflect back on 2017, to evaluate our successes, review our challenges, and by now settle into the New Year revitalized and enthused about our goals for 2018!
We have seen and will continue to see changes in the railroad industry as we evolve in what, how, and why we do what we do. With this being said, I look forward to seeing all of you actively participate at some level this year, whether it be serving on a sub-committee; assisting at claims school or advancing the GCC agenda.
Let’s make it our goal to truly invest in the assets that will enable us to effectively achieve and succeed in our roles of proficiently supporting the railroad industry!
It is with excitement that I communicate to everyone that plans for the 2018 AAR/GCC is well underway. The conference will be held October 30 - November 1, 2018, in downtown St. Louis, MO. The location is the St. Louis Union Station Hotel, located in the historic St. Louis Union Station which dates back to 1894.
This venue was carefully selected in hopes of being convenient for everyone. In addition, I’m so happy to convey that we were able to negotiate an attractive room rate of $149.00 a night as well!
At this year’s conference, we will continue to evolve the meeting formant launched by the BNSF at the 2017 GCC to include break-out secessions, round tabling and meaningful discussions. In order for our time together to be productive and successful it will require commitment and participation. As earlier communicated, we all will need to “show up.” Stay tuned for more details!
In closing, as we all know the industry environment of today’s railroad is ever- changing with the bar of expectation rising higher every day. Our claims conference environment affords opportunities for effective communications and to expand knowledge, as well as build new relationships. We have a great wealth of wisdom within the committee and its members; I sincerely hope there is serious consideration given toward attending, and participating!
Brenda Gunn, CN/Illinois Central Railroad Company AAR/GCC Chairperson (2017-2018)
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Personalities
In this issue, we are pleased to feature Vince Staten, Risk Mitigation Officer for CN and located in New Orleans, LA.
Vince started his career on the rails in Chicago, IL, in 2008 with CN as a Management Trainee, eventually becoming a Transportation Supervisor. He served in similar capacities in Chicago, IL, Jackson, MS, and New Orleans, LA. He then shifted into the CN Risk Management Department in April of 2012 as a Risk Mitigation Officer. He joined the Publications Committee in June of 2015 and has been a valuable asset to our team.
Vince was born in Laurel, MS, and graduated from Quitman High School in Quitman, MS. After high school, Vince considered many different educational avenues, and ultimately attended Mississippi College in Clinton, MS, where he obtained his bachelor’s degree in administration of justice.
Vince makes the absolute most of his free time by giving back to his community. He has volunteered with the United Way for over ten years in Mississippi and Louisiana, and currently serves on the Tangipahoa Leadership Council for the United Way of Southeast Louisiana. He and his wife, Becky, have been happily married for 29 years and have three children: Terrance, Jasmine, and Zachary.
Vince enjoys spending time with his family and attending his sons’ basketball games. He also volunteers his time coaching with the Amateur Athletic Union.
James Higgins, New Agents Committee
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Keeping Track
In this issue, we are pleased to feature Gene Pandlis, former District Claim Agent for Norfolk Southern Corporation in Roanoke, VA.
“I’ll wing it!” Gene says of the next year of retirement after being retired since May 1, 2015. He tells me that life in Vinton, VA, hasn’t been as exciting since his retirement and he is not really sure how interesting his story is now. So far, all he has done is home improvement projects, a basement remodel, and cannot leave out the several motorcycle trips he has taken on his Harley Davidson Street Glide, not to mention helping his loving wife with whatever she needs. Sounds like pure misery to me!
Gene joined the Norfolk and Western Railway Company on November 28, 1978, as a Claim Agent in Roanoke, VA. Most of his career was spent in Roanoke, as he was promoted to Senior Claim Agent and then District Claim Agent. As he was being promoted, his company names were changing as well. He went from working for Norfolk and Western Railway Company to Norfolk Southern Railway Company in 1982 and then Norfolk Southern Corporation in 1999. In 2005, he was promoted to Manager Claims Litigation in Norfolk and then in 2010 he went back to Roanoke to finish he career out as the District Claim Agent.
When asked what he took away from his years as a claims professional, Gene states: “You don’t always realize you have any legacy for your many years of work or what kind of impact you have on those working with you. I came to realize through my many years of being trained and training the fine men and women in the Claim Department, that I left a little bit of myself in each one of those people. Perhaps that is the only true definition of one’s legacy.” What else is left to be said? We wish you and your wife great joy and prosperity on your future endeavors.
Tasha Howell, Publications Committee
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Meet Some of Our Newest Members
BNSF Railway Company
Michael Flynn, Claim Representative, joined BNSF’s General Claims Department in Memphis, TN, on December 1, 2017. Michael graduated from Delta State University in Cleveland, MS, with a degree in commercial aviation in 1994. He is currently working on a master’s degree in organizational leadership from Columbia Southern University. Prior experience includes being a detective for the Horn Lake, MS, police department; sales of aircraft parts; BNSF conductor/switchman/locomotive engineer; and, a Special Agent K-9 handler. Michael is married to Shanda, and they have a 10- year-old daughter, Emilee. In his spare time he enjoys spending time with his family and plans to spend a lot of time in their new swimming pool.
Brent J. Ostlund, Claim Specialist, joined BSNF’s General Claims Department in Seattle, WA, on January 2, 2018. Brent graduated from Western Washington University with a B.A. in political science in 2009 and most recently graduated from Western Governors University with a B.S. in Business/H.R. Management in 2016. Prior to joining BNSF, he was a pre-load supervisor with UPS in Pacific, WA. Brent is single. He has a large extended family with whom he enjoys spending time; and for fun, he likes going out and singing karaoke with friends.
CSX Transportation, Inc.
Sean Reiter, Manager of Field Investigations, joined the CSX Risk Management team in October 2017 in Langhorne, PA. He started his career with CSX as a Special Agent in June 2016. Sean grew up in Medford, NJ. He attended Marshall University where he earned a bachelor’s degree in criminal justice and history. Sean then went on to earn a master’s degree in diplomacy from Norwich University. Prior to joining CSX, Sean worked as a police officer for 15 years in Charleston, SC. Sean is a hockey enthusiast and plays in an adult league and a traveling police and fire league.
Norfolk Southern Corporation
Jeffery Behymer, Manager Administration, joined the Norfolk Southern Casualty Claim Department on December 11, 2017, in Norfolk, VA. Jeffery has worked for Norfolk Southern since 2001. He started in the IT department, moved to the intermodal department in 2010 as an IT project manager, and in 2014, he moved to the intermodal maintenance department. Prior to working for the railroad, Jeffery received his bachelor’s degree in information technology from Virginia Tech University. In his spare time, he enjoys doing home improvement projects, playing guitar and playing a round or two of golf.
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Christopher Gilbert, Claim Agent, joined the Norfolk Southern Casualty Claim Department on November 1, 2017, in Roanoke, VA. Chris has been with the Norfolk Southern for 19 years, serving as a mechanical department general foreman. Prior to coming to work for the railroad, he received his Bachelors of Science degree in environmental management from Radford University. When he is not at work, he enjoys spending time with his family, kayaking and fishing.
Kansas City Southern Railway
Crystal Franklin, Claim Agent, joined the KCSR Claims Department in Shreveport, LA, on January 15, 2018. Born and raised in Shreveport, she holds a bachelor’s degree in finance from Louisiana State University. Prior to joining KCSR, Crystal worked in the insurance industry as a claims adjuster. In her free time, she enjoys reading, spending time with family, and helping others.
Union Pacific Railroad
Amanda Boggan, Risk Management Representative, joined the Dallas, TX, Risk Management team on November 1, 2017. She began her Union Pacific Railroad career in 2011 as an Operations Management Trainee. After being promoted to Supervisor of Yard Operations, she served as a transportation manager in the Houston and Fort Worth areas until accepting the Risk Management position. She earned a Bachelor of Science in marketing at Jackson State University where she received a softball scholarship. When Amanda is not at work she is usually watching a movie or sports. You may also find her dancing the night away as a newly certified Zumba instructor
Kendra Clark, Risk Management Trainee, joined the St. Louis, MO, Risk Management team October 23, 2017. Until her recent move to St. Louis, she called Omaha, NE, home for four years. Kendra has a Bachelor of Science in psychology as well as a Juris Doctor from Creighton University. Prior to accepting this position, she practiced in diverse areas of law including workers' compensation, personal injury, and criminal law. Kendra has two children; one of whom is a college soccer player and another who leads the call center training program at Xfinity. When she is not cheering for her daughter on the soccer field, you can find her cycling, playing softball, or relaxing with a book.
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George Medley Jr., Risk Management Trainee, joined the St. Louis, MO, Risk Management team on October 23, 2017. George proudly calls St. Louis, MO, home. He has a wife, two kids, and is excited about a third on the way. Prior to accepting this position, he worked as an operations supervisor at XPO Logistics and in claims at Progressive Insurance. He served in the Army National Guard for 14 years. Away from work, George loves spending time with his kids and has recently taken up golf.
Dina Bongiovanni, Part Time Assistant Risk Management, joined the Roseville, CA, Risk Management team on January 8, 2018. Dina is originally from San Jose, CA, and has a background in safety, hospitality and general administration. Dina has two daughters, two granddaughters, and one grandson. When not working she enjoys spending as much time as possible with all of them.
Stacy Severson, Risk Management Representative, joined the Risk Management team in Omaha, NE, on December 4, 2017. Stacy is a graduate of Doane College and previously worked in the insurance industry. She currently lives in Glenwood, IA, and is married with two children. Stacy enjoys the outdoors and spending free time with family and friends.
Members Moving Up
Union Pacific Railroad
Janet Leonardo: On November 1, 2017, was promoted from Sr. Assistant Risk Management in Chicago, IL, to Risk Management Trainee in Dallas, TX.
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2018 General Claims Conference Union Station Hotel St. Louis, MO October 30 thru November 1, 2018
The negotiated room rate is $149.00 per night which will be honored October 26 thru November 3, 2018.
St. Louis Union Station Hotel is a Curio Collection Hotel by Hilton, located in the historic St. Louis Union Station. Dating back to 1894, St. Louis Union Station welcomed travelers from near or far with grandeur and grace. The stately hotel, with its old world charm and stunning architecture, provided a quiet respite from it all. The Midway once serviced more than 10,000 rail passengers a day. The area was connected to the massive train shed, where passengers lined up to board trains through one of 32 boarding gates. Today the Midway is St. Louis’ premier exhibit space.
The hotel is a fully renovated, Four Diamond Hotel. The property boasts a Grand Hall to include exquisite architectural elegance with an added light show that towers above on the 65-foot ceiling. This historical property continues to amaze those who visit, providing a luxury travel experience reminiscent of days past. The hotel is conveniently located in downtown St. Louis and only fifteen minutes from St. Louis Lambert International Airport. Distinctive and one-of-a-kind in amenities and service, this icon of St. Louis heritage for over one hundred years is now the leading host of meetings in the Midwest.
Contact Person: Brenda Gunn Phone: 708-332-6782 Email: [email protected]
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Basic and Advanced 2018 Railroad Claims Schools May 7-11, 2018
Location: Johnson County Community College Overland Park, KS Classes will be held in the Reigner Center on the college’s campus.
Schedule: Classes will start Monday, May 7 at 8:00 am, and conclude Friday, May 11 at 12:00 pm.
Registration: There is a $450 registration fee per student, which includes catered lunches and all curriculum materials. Students are required to register by April 1, 2018, on the AARGCC website; http://aargcc.com. Attendance may be limited, so early registration is encouraged. Students must be employed by an AAR member railroad.
Lodging: Please see the AARGCC website for information: http://aargcc.com Lodging is the responsibility of each student.
Transportation: Transportation between the airport and the hotel is the responsibility of each student. If students do not wish to incur the cost of a rental car, Five Guys Transportation (www.fiveguysshuttle.com) is a shuttle service that has been used in the past by students. Students should contact the company directly for rates and reservations.
Curriculum: Informative and interactive, full-day classes and workshops will be offered. Topics covered in the basic school will include anatomy, statement taking, investigation, claim evaluation/negotiation, etc. The advanced school topics will include jury selection, catastrophic incidents, claim evaluation/negotiation/mediation, a leadership panel, etc.
Other: Dinners are the responsibility of each student. Basic school students must bring their own safety boots, digital recorders, and cameras. Hard hats, vests, and basic eye protection will be provided. Advanced school participants should have at least three years of railroad claims experience. A student cannot attend the basic and advanced schools in consecutive years.
If you have any questions, please contact Cathy Price, Education Committee Chairperson, at (402)544-6020/[email protected] or Sabrina Hughes, (402)544-0586/[email protected].
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TRIAL
SUMMARIES
We appreciate the reporting of trial results to our Managing Editor, Jim Swan, via email attachment to [email protected].
Sanders v. Union Pacific Railroad
Plaintiff, Thomas Sanders, brought this FELA lawsuit in the County Circuit Court of Pulaski County, AR, alleging injury caused by an incident on October 27, 2010, in North Little Rock, AR. Plaintiff was a machinist in Union Pacific’s Jenks Locomotive Shop, where he rebuilt locomotive traction motors, on the date of the alleged injury. Part of the rebuild process requires the fastening of a two-piece casing around a component of the traction motor using a huck gun. Similar to a rivet gun, the huck fastener works as follows: 1) A threaded steel pin is inserted through a hole in each half of the casing; 2) an aluminum collar is placed over the threaded end of the pin; 3) the huck gun is placed over both the pin and collar; 4) using hydraulic pressure, the huck gun squeezes the collar onto the pin; and 5) the huck gun grabs the pin and pulls on it until it breaks off near the end of the secured aluminum collar. The huck gun weighs about 60 pounds and is suspended from a strap connected to a crane while being operated. Prior to plaintiff’s incident several employees, including plaintiff, had operated the huck gun but had forgotten to first place the collar on the pin. When operated in this fashion, the pin recoiled when it broke and, with no collar to stop it, shot across the shop floor. This problem was reported to the foreman responsible for tooling at the shop who, along with several employees, decided to develop a bracket that could be placed over the end of the pin to prevent it from shooting out if a worker forgot to place a collar. At trial plaintiff testified that he had nothing to do with the idea or process of developing the bracket but recanted that testimony when confronted with his deposition admission that he had been involved.
On the incident date, the foreman took a prototype bracket to the traction motor station to see if it would fit over the casing. He testified that a discussion ensued in which plaintiff said that the only way to know if it would work was to try it. However, plaintiff testified that the foreman instructed him to test the device, and that he felt he had no choice but to do so. Despite the conflicting testimony regarding how he came to conduct the test, it was undisputed that plaintiff did in fact conduct it. The foreman testified that following the test, plaintiff’s only comment was that a thumbscrew needed to be installed to keep the bracket from moving when the huck gun was fired. Conversely, plaintiff testified that prior to the test the foreman and other employees moved far away from the test area, as if trying to stay clear of a dangerous situation. He further testified that the huck gun jolted him, knocked off his hard hat and safety glasses, and caused immediate pain
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in his shoulder. The only witness looking directly at plaintiff when he operated the huck gun corroborated plaintiff’s claim that he was knocked off balance and that the recoil knocked off his hard hat, safety glasses, and ear plugs. Multiple witnesses who were in the area, but not directly focused on plaintiff, did not observe any abnormal recoil or the loss of personal protective equipment and testified to that effect. Though he complained to a co-worker a few minutes after the incident, plaintiff made no real indication of injury until visiting the shop nurse two and a half hours after the test. He was issued ibuprofen, and an ice pack. He then worked the following two days without apparent issue before visiting the emergency room complaining of right shoulder pain. X-rays of his shoulder and neck were normal.
On November 8, 2010, he followed up with his general practitioner who diagnosed musculoskeletal pain and right frozen shoulder and referred him to an orthopedist. At the orthopedist visit he complained of bilateral shoulder pain. The orthopedist noted full range of motion in the left shoulder and full or nearly full range of motion in the right. A December 2010 MRI of the right shoulder showed moderate degenerative changes at the AC joint and mild fraying of the rotator cuff without labral or rotator cuff tear. In January 2011, plaintiff returned to the orthopedist complaining of vertigo and pain all over the right side of his body. The orthopedist noted that the right shoulder had essentially recovered, but plaintiff was experiencing, “some unusual symptoms but [that they] cannot be explained.” He was released to return to work on February 7, 2011, but never did so. In March 2011, plaintiff began treating with a second orthopedist who ordered an EMG study of the neck and arms that was interpreted as normal. A spinal MRI revealed multiple levels of spondylitis and lumber degenerative disc disease. He continued to see this orthopedist regularly and complained of headaches, neck pain, and low back pain. He was eventually referred to a neurologist who diagnosed post-traumatic headaches but noted that plaintiff’s ear and balance problems did not correlate with the headaches, and that there was a disproportionate amount of pain complaint relative to the MRI’s. In October 2013, a second neurologist diagnosed lesions in plaintiff’s brain but, in response to plaintiff’s request for an opinion regarding causation, wrote a letter stating it was unlikely the lesions were related to the work incident. From 2013 to trial, plaintiff treated with a third orthopedist who diagnosed a protruding thoracic disc, attenuation of cervical spine ligaments, and strained ligaments and bursitis in the right shoulder. He attributed the headaches to the muscular tension created by these injuries. An eventual referral to a neurosurgeon resulted in the implantation of a spinal cord stimulator in December 2016 to address a chronic pain syndrome diagnosis. In all, plaintiff saw over 50 physicians between the date of injury and trial.
Trial commenced on September 6, 2017. Plaintiff was represented by Little Rock, AR, attorney Chet Lauck of the Lauck Law Firm. Union Pacific was represented by Little Rock, AR, attorney Joseph McKay of Friday Eldredge & Clark. Sr. Risk Management Representative Brent Smith investigated the matter and provided assistance at trial. Plaintiff asserted that the injury was the result of a safety culture failure at Union Pacific. Namely that Union Pacific had failed to follow its safety protocols in knowingly allowing modification of a tool without employing engineering professionals to design, build, and test the device. Further, Union Pacific had negligently used plaintiff as a human guinea pig. Plaintiff presented medical expert witnesses at trial who opined that plaintiff had been permanently injured — including a traumatic brain injury — by the recoil of the huck gun and suffered permanent physical impairment that precluded gainful employment. Ergonomist Dr. Tyler Kress was retained to test the huck gun and opined that the force of the recoil
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was sufficient to cause the injuries alleged. Union Pacific argued that it was plaintiff who consequently came up with the idea to test and later modify the bracket. Further, plaintiff had not been subjected to abnormal recoil nor had his personal protective equipment knocked off. In fact, the only thing that happened was that the bracket worked. Union Pacific retained ergonomist George Paige who testified that the recoil was 1/10 the force generated by a 12-gauge shotgun and that Kress’ force testing was grossly inaccurate. Union Pacific’s medical expert witnesses opined that over the course of treatment with over 50 doctors, there had never been any objective evidence of physical injury. Further, plaintiff’s history was suggestive of Somatic Symptom Disorder in which a patient is consumed by disproportionate complaints of pain relative to what is physiologically possible and that this was consistent with his doctor’s diagnosis of chronic pain syndrome — a psychological diagnosis. Plaintiff’s economist calculated his economic damages at $1.4M-$1.9M, including household services, despite plaintiff’s testimony that he was still able to mow his lawn, feed cattle, garden, and maintain his vehicle. At close, plaintiff requested $2,000,000 and a finding of 0% contributory negligence. Following deliberation, the jury rendered a defense verdict.*
Jeff Beck, Publications Committee
*Verdicts are reported as: defense verdicts, verdict in favor of plaintiff, or verdict in favor of defendant. Verdicts in favor of plaintiff are verdicts above the last offer. Verdicts in favor of defendant are verdicts less than the last offer.
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New Claim Agents Forum A Perspective on Claims Work
We are pleased to feature an article by Brian DiMaio, Manager Field Investigations with CSX Transportation in Jacksonville, FL.
The Demands of Working Railroad Claims
Working large-scale train incident claims is a totally different animal than other claims handling, as new claim agents learn very quickly. No matter what your background in claim investigations is, the unique demands, pressures and time constraints associated with this job can often seem overwhelming. Being on call and responding to crossing accidents or other injury claims in the middle of the night, sometimes hours away from your home, and with very little, or with altogether incorrect information can take its toll. Major derailments or evacuations due to hazmat incidents can take you away from your family for days at a time. The knowledge that a major incident or derailment may be under intense scrutiny from state and federal agencies, along with the national media doesn’t help matters.
No one in any department of the railroad looks forward to a phone call in the middle of the night with the news that a train has derailed and a tank car is leaking some dangerous substance that necessitates the evacuation of a two-mile radius in a populated area. No matter how small or large a town is, evacuations are never easy, logistically or realistically. Suddenly, you and other claim agents from your company may find yourselves working 12 to 15-hour days in a part of the country you have never been to, trying to help displaced local residents find a hotel and restaurants. And it may not always be in a metropolitan area, which means both hotel rooms and dining establishments could be at a premium.
You have to be mindful that people are not going to be happy with being forced out of their homes with little to no warning, and may not care about the fact that you are there to help them get through this event. As a representative of the company, you may find yourself on the receiving end of their (understandable) anger. Even the biggest rail fans will find themselves irate at the railroad for being evacuated from their homes, and will likely have no problem whatsoever expressing that to you and your colleagues. They also will have no problem at all expressing that sentiment to the news media or on social media.
Besides needing a hotel room and funds for temporary living expenses, some people will need your assistance in retrieving medicine from their homes or relocating their pets after being evacuated. Some may even just want to know that the railroad cares about the local residents and the town, and want assurances that they will do all they can to get the area back to normal. Being empathetic and just letting displaced residents vent to you can sometimes make them feel significantly better.
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No matter how daunting an incident can look at first, just keep in mind to slow down, take a deep breath, and think about your training. Gather your thoughts and remember that your supervisor and the other claim agents in your company, as well as the local first responders and other restoration companies are there to help you get the job done.
Even on regular days, this is by no means an easy career. It is not as if the typical demands of your job took a vacation while you were off working a derailment. Every derailment is unique, with its own set of challenges, be it weather, population or geography. But having some idea about what to expect, and what is expected from you, at a derailment can make it a bit easier to handle.
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AAR/RRB Committee Report
Here Is What Is New for 2018
Railroad Retirement and Unemployment Insurance Taxes for 2018
Tier I Tax: Effective January 1, 2018, railroad employees and employers will continue to pay 6.2% on Tier I earnings. The maximum amount of an employee’s 2018 earnings subject to Tier I taxes increases from $127,200 to $128,400.
Tier II Tax: The Tier II tax for railroad employees remains 4.9% in 2018. This is the maximum tax rate allowed for employee Tier II taxes. The Tier II tax for employers also remains 13.1%. The maximum amount of an employee’s 2018 earnings subject to Tier II taxes increases from $94,500 to $95,400.
Medicare: The Medicare tax for railroad employees and employers remains at 1.45% with all employee 2018 earnings subject to the rate. An additional Medicare tax of 0.9% applies to an individual’s income exceeding $200,000, or $250,000 for a married couple filing jointly. While employers will start withholding the additional Medicare tax when an individual’s earnings exceed $200,000, the final amount owed or refunded will be calculated as part of the individual’s federal income tax return.
Unemployment and Sickness Benefits for 2018
Beginning October 1, 2017, the RRB began reducing unemployment and sickness benefits by 6.6%, down from 6.9% the previous year as required by law. The daily benefit rate is $72, so the 6.6% reduction in benefits reduces the payment for a 2-week period from $720 to $672.48.
The reduction to unemployment and sickness benefits is required under the Budget Control Act of 2011 and a subsequent sequestration order to implement mandated cuts. Because certain RRB unemployment and sickness benefits are subject to Tier I taxes, net unemployment and sickness benefits will result in a maximum two-week, ten workday total benefit of $621.04.
In fiscal year 2016, the RRB paid net unemployment-sickness benefits of $133.3 million to approximately 31,500 claimants, compared to paying $83.2 million to approximately 25,000 claimants in fiscal year 2015.
Railroad Retirement Benefits in 2018
Railroad retirement annuities will increase in 2018. Tier I benefits will increase 2.0% (compared to 0.3% in 2017), which is the percentage rise in the Consumer Price Index (CPI). Tier II benefits will go up by 0.7% (compared to 0.1% in 2017), which is 32.5% of the CPI increase.
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In January 2018, the average regular railroad retirement employee annuity will increase $42 a month to $2,711 (compared to $6 a month or $2,628 in 2017) and the average of combined benefits for an employee and spouse will increase $60 a month to $3,937 (compared to $9 a month or $3,815 in 2017). For those aged widow(er)s eligible for an increase, the average annuity will increase $24 a month to $1,353 (compared to $4 a month or $1,327 in 2017). For further details on railroad retirement benefits and exceptions, go to: https://www.rrb.gov/index.php/NewsRoom/NewsReleases/RetirementBenefitstoIncreasein2018
In fiscal year 2016, the RRB paid $12.3 billion in retirement and survivor benefits to about 553,000 beneficiaries, compared to paying $12.2 billion to about 558,000 beneficiaries in fiscal year 2015.
Retiree Earnings Limits in 2018
Railroad employees on a RRB retirement annuity can earn money in 2018 without being subject to a reduction in their monthly retirement benefit. These earnings restrictions apply to those who have not attained full social security retirement age.
For employee and spouse annuitants, full retirement age ranges from age 65 for those born before 1938 to age 67 for those born in 1960 or later. For survivor annuitants, full retirement age ranges from age 65 for those born before 1940 to age 67 for those born in 1962 or later.
For those under full retirement age throughout 2018, the exempt earnings amount remains increases to $17,040 from $16,920. For beneficiaries attaining full retirement age in 2018, the exempt earnings amount, for the months before the month full retirement age is attained, also goes up to $45,360 from $44,880.
For railroad employees receiving an occupational or total and permanent disability, earning restrictions continue to apply in 2018. The monthly earnings restriction increases to $920 in 2018 up from $910 in 2017.
Regardless of age and/or earnings, no railroad retirement annuity is payable for any month in which an annuitant (retired employee, spouse or survivor) works for a railroad employer, railroad union or is credited with service to an employing railroad.
For additional information on the above categories and more, visit:
www.rrb.gov/index.php/NewsRoom/NewsReleases.
Will Harden, NS, Chair RRB Subcommittee
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2018 Don Lord Writing
Competition
This competition is sponsored by the Publications Committee of the General Claims Conference and is open to all Claim Department members.
Here are just a few reasons why you should consider entering this year’s competition. Every railroad claims professional has accumulated some degree of knowledge and experience that can be helpful to others. The writing competition is the perfect forum in which to share your knowledge. In 2016, we modified the competition from an essay competition to a writing competition to encourage outside-the-box entries and creative submissions. Publication of a prize- winning entry in The Bulletin is one of our industry’s highest honors. Also, who could not use an extra $1,000?
Everyone has at least one idea, concept or experience worth writing about. Take the leap and challenge yourself. Any topic is open, as long as it relates to claims work. Remember your audience is someone just like you, doing the work you do. If it is interesting to you, it will be interesting to The Bulletin readers. This is not an editorial, but rather your thoughtful compilation of information from which others can learn. You want original thoughts. These can be your own opinions, but be sure to back them up with facts, studies or other articles to support them. Give yourself time to write and revise. While you do not have to formally site your sources, you do need to reference where you are getting your information. Remember to check for grammar, spelling, and punctuation — ask a friend or coworker to proofread your entry if needed.
Everyone is anxious to hear the results of the judging. However, the custom is not to announce the winners until the General Claims Conference in October. As an added incentive, winners are often invited to the conference by their respective roads to accept the awards in person. Now is the time to get started! If you have any questions about the Don Lord Writing Competition process, contact your Publications Committee representative today.
Things to know before you get started:
• The topic area must be pertinent to claims work and of original thought • Entries must be in Word document format and double spaced • There is no specific guideline as to length
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Four Keys to Success:
1. Focus: a) Introduction (Is the topic stated clearly and precisely--is there a clear beginning?) b) Theme (Does paper have a single focus?) c) Conclusion (Does it summarize or make recommendations--is there a clear ending?)
2. Support of Ideas: a) Are opinions based on related experience and/or facts? b) Are facts relevant to the topic? c) Is the length appropriate for the topic? (Too long? Too short?) d) Are sources cited appropriately? (if applicable)
3. Maturity of Language Used and Mechanics: a) Clear expression; b) Easily readable; c) Correct vocabulary; d) Proper grammar; e) Correct spelling; f) Accurate punctuation; g) Sentence structure (subject-verb and pronoun-antecedent agreement, proper tense, run-on sentences avoided).
4. Creativity: a) Original thought versus information taken primarily from sources. b) Captures the interest of the reader.
Previously submitted essays, not selected as winners, may be re-submitted for consideration one additional time. Consider thoughtful revisions that clarify and further your arguments. In that regard, although the Publications Committee members, as a matter of policy, do not provide unsolicited feedback, they can give you feedback upon request. This is particularly important to those who wish to learn from the experience and improve their writing skills, as well as improve their chances of winning future competitions.
Names of all authors will be removed prior to submission to the judges. Please do not include any personal or railroad identifying characteristics in the entry.
Submissions, without exception, must be emailed by June 1, 2018. Attach your entry to an email and send it to Jim Swan, Managing Editor of The Bulletin, at [email protected].
In addition to being considered for publication in The Bulletin, winners will be awarded as follows:
• First Place will receive a plaque and $1,000.00 • Second Place will receive a plaque and $750.00 • Third Place will receive a plaque and $500.00 • Honorable Mention: The number of honorable mention winners will be based on ten percent of the number of entries, and they will each receive a certificate and $250.00
Deadline: June 1, 2018 Attach your entry to an email and send it to Jim Swan, Managing Editor of The Bulletin, at [email protected].
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Second Place 2017 Don Lord Writing Competition
“The ADA, ADAAA and Reasonable Accommodations”
Terri L. Kwasny
Claim Representative Norfolk Southern Corporation
Terri Kwasny, Claim Agent, works in the Norfolk Southern Casualty Claims Department in Dearborn, MI. Terri has two children, six grandchildren, and three cats — all of whom bring her great joy (most of the time). Prior to joining Casualty Claims in November 2015, Terri worked in the EEO group of Norfolk Southern’s Human Resources Department. There, in addition to investigating and responding to allegations of harassment and discrimination, Terri also had the opportunity to participate in the medical accommodation process — one of the topics addressed in her essay.
In his “State of the Industry and Trends in Claims Handling” presentation during the 2016 AAR General Claims Conference, Norfolk Southern’s General Counsel Roger Petersen outlined some of the issues he expects will create future challenges in our handling of employee injury (FELA) claims. One issue, surprisingly, is the Americans with Disabilities Act, or the ADA (subsequently amended). Most of us recognize the ADA as being the law that protects individuals with disabilities from discrimination, and I am confident we all agree that disabled individuals are deserving of the same rights and privileges that others in society enjoy. So what impact does this regulation have on our jobs? Well, in light of the significant changes to the ADA over the past few years, I feel certain that the “challenge” that Petersen spoke of us is not the basic principle of the ADA, but the ambiguous, invasive and often over-reaching regulatory burden into which it has morphed.
The ADA, which was signed into law in 1990, prohibits discrimination against individuals with disabilities in areas of employment, education, public transportation and public and private places that are open to the general public. ADA protection is not limited to U. S. citizens; rather, the protection extends to all disabled individuals, regardless of their citizenship status and/or
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nationality. The ADA is comprised of five sections, called Titles, each of which mandates protection for disabled individuals in a different aspect of society1. For our purposes, we will concentrate on Title I, Employment.
Title I of the ADA addresses employment issues and prohibits private employers (with more than 15 employees), state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in all areas of employment, including the application and hiring process, promotions, compensation, training, etc. Title I establishes rules about when an employer can legally ask an applicant/employee about the existence of a disability and mandates an employer’s responsibility for maintaining the confidentiality of an employee’s medical records. Title I also grants a disabled applicant/employee the right to file a formal complaint against an employer they feel has discriminated against him due to a disability, and makes it unlawful for an employer to retaliate against that disabled employee (or applicant) for filing such a complaint, opposing discriminatory practices, or participating in an investigation. Finally, Title I of the ADA puts employers on notice of their requirement to provide “reasonable accommodation” to qualified individuals with disabilities2, except when such an accommodation would cause an undue hardship.
Even in its original 1990 version, the ADA was one of the most comprehensive pieces of civil rights legislation in the history of the United States, providing equal rights to individuals with disabilities in the same manner that the Civil Rights Act and other anti-discrimination laws protect individuals from unfair and disparate treatment based on certain “protected classes” — race, color, religion, gender, national origin, age, sexual orientation, veteran status, and others. The Equal Employment Opportunity Commission, or the EEOC, the agency responsible for enforcing other anti-discrimination laws and regulations, is also responsible for enforcing the provisions of the ADA and investigating allegations of discrimination based on disability.
In January 2009, the ADA with the Americans with Disabilities Act Amendments Act of 2008, or the ADAAA, was signed into law. The ADAAA expanded the definition of disability to apply to a much broader group of conditions and individuals. The ADAAA also attempted to clarify what actions the EEOC expected from employers in satisfying their legal requirement to provide reasonable accommodations for disabled employees.
1 The Americans with Disabilities Act is divided into five sections, or “Titles.” Title I protects disabled individuals in employment matters; Title II ensures disabled individuals have access to public services, including commuter services; Title III mandates public accommodation for disabled individuals, including construction modifications; Title IV requires public telecommunication companies to provide relay or similar services for the deaf or hearing-impaired; and Title V includes a provision to protect disabled individuals against retaliation when asserting their rights under the ADA. 2 A qualified employee with a disability is an individual who, with or without reasonable accommodation, satisfies the requisite skill, experience, education and other job-related requirements to safely perform the essential functions of the employment position that such an individual holds. As with other civil rights laws, an individual seeking protection under the provisions of the ADA must allege and prove that they are in fact members of the “protected class.” In this case, they must prove that they meet the definition of a “disabled individual,” since any request for accommodation must be based on a documented medical condition.
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Defining a Disability
The 1990 ADA defined a disability as “a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such impairment, or a person who is perceived as others to have such impairment.” The ADA did not list all possible impairments, but the “substantially limits one or more major life activities” language was used to assess the existence of a disability. The EEOC considered a “major life activity” to be just that — caring for oneself, seeing, hearing, walking, talking, eating, sleeping, reading, etc., and is generally what most of us visualize when we think of a disabled individual — someone who is blind, deaf, or suffers from serious physical disorders or birth defects — impairments that are visible and somewhat obvious.
The ADAAA embraced the ADA’s original definition of a disability as a physical or mental impairment that substantially limits one or more major life activities, then took it a step further to expand the “major life activities” requisite to include “major bodily functions.” While this may not seem like a significant change to the statute, that broadened definition covered conditions that had not previously been considered disabilities — physiological disorders, cosmetic disfigurement, conditions effecting one or more body systems (neurological, musculoskeletal, respiratory, cardiovascular, reproductive, digestive, immune, circulatory, lymphatic), and mental or psychological disorders (mental illness, learning disabilities, etc.). For example, just as “blindness substantially limits seeing” (per the original ADA definition), the ADAAA now allows that “cancer substantially limits normal cell growth,” “rheumatoid arthritis substantially limits musculoskeletal function,” and “autism, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia substantially limits brain function.” This is, of course, not a complete list, but it provides insight into how the EEOC intends the broader definition of a disability to be interpreted. The ADAAA also considers a medical impairment that is “episodic or in remission” to be a disability if it substantially limits a major life activity while in its “active state.” Asthma, post-traumatic stress disorder, hypertension, major depressive disorder, and cancer — all of these are considered disabilities under the ADAAA based on the fact that the condition substantially limits a major life activity during a “flare-up” or “active” period of impairment.
There are a few conditions that the EEOC has determined do not constitute a disability and are therefore not protected under the ADA. Employees who engage in the illegal use of drugs are not covered by the ADA, and employers are not prohibited from testing employees for illegal substances. However, protection may exist for a qualified employee who has successfully completed a supervised drug rehabilitation program and are no longer engaging in the illegal use of drugs, or is currently participating in a supervised rehabilitation program and is no longer engaging in such use. Impulse-control disorders such as kleptomania, compulsive gambling, pyromania and pedophilia are also not (currently) considered to be disabilities.
Another significant difference between the two pieces of legislation is the categorization of temporary disabilities. The ADA held that temporary conditions, such as a broken leg, back injury, acute bronchitis, etc., were not generally considered to be disabilities and therefore not protected by the ADA; employees who had suffered a temporary condition and failed to return to work after their medical leave was exhausted could be terminated. Under the expanded ADAAA disability definition, the EEOC contends that a temporary condition that is “sufficiently severe” qualifies as
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a disability, therefore the individual is protected. Unfortunately, the EEOC has not provided much guidance on how to an employer is to measure “sufficiently severe.”
Accommodating Employees with Physical or Mental Impairments
As mentioned earlier, Title I of the ADA requires that an employer provide reasonable accommodations to qualified individuals with disabilities who are employees (or applicants), unless doing so would cause an undue hardship.3 The reasonable accommodation process begins when an employee makes a request for an accommodation based on a disability or medical condition. While the disabled employee is responsible for making the request, the request does not need to be formal, it does not need to be in writing, and it does not need to include the term “accommodation.” If an employee tells his supervisor that he is having difficulty performing the essential functions4 of his job due to a medical condition or health impairment, he has met his responsibility for an accommodation request. Further, if an employee’s disability is obvious, or if the employer has prior knowledge that an employee’s disability is preventing him from performing the essential duties of his position, the employer is then required to initiate the accommodation process. It is also acceptable for a family member, friend, or physician to make the initial request on behalf of the disabled employee. In these cases, if an employee feels he does not need such an accommodation, he can simply decline the offer; and the employer has fulfilled their obligation.
It is during the initial stages of the accommodation process when an employer can ask about the nature, severity, and duration of the disability, and inquire as to what specific duties are impacted by the impairment. The employer can request medical documentation related to the specific disability or functional limitation that warrants the accommodation request. If an employee is unable to provide such medical documentation, under certain conditions the employer can require the employee be examined by a healthcare provider of the employer’s choice, so long as the examination is limited to the employee’s disability and is based on tasks and job functions that are job-related and consistent with business needs.
Once an employee has requested a medical accommodation, the employer must promptly engage in an open, interactive dialogue with the employee. Employers should review all accommodation requests on a case-by-case basis to ensure any potential accommodation would meet the disabled individual’s needs. Employees should be encouraged to offer their suggestions, and ideas can also be obtained from healthcare providers, field supervisors, or in-house counsel. Often, the only accommodation needed is a minor change in the work environment or in the way tasks are
3 Undue hardship is usually based on the net cost to the employer. When considering the cost of an accommodation, the employer must determine if there are mitigating financial resources, such as eligibility for tax credits that an accommodation may warrant, or even whether or not the employee can contribute to the cost of the accommodation. Undue hardship refers not only to financial difficulty, but to reasonable accommodations that are unduly extensive or fundamentally disruptive to business operations.
4 Essential functions are the primary or fundamental duties for which a particular employment position is responsible. In some cases, the position may even exist for the sole purpose of performing those functions, and in cases where a function is highly specialized; there may be a limited number of employees who are qualified to perform that function. A job task can be ruled as an essential function in a number of ways, including the employer’s judgement, the amount of time an individual in that position spends performing that function, if the function is written in the job description, the consequence of the task not being performed, or by the terms of a collective bargaining agreement.
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customarily completed that will enable a qualified individual with a disability to perform their job to the same level as those without a disability Modifications can be simple and inexpensive, such as allowing an employee with rheumatoid arthritis the opportunity to use a stool when working on tasks that require long periods of standing, or allowing an employee who wears a hearing aid the opportunity to use noise-filtering, over-the-ear headphones instead of ear plugs when performing tasks where hearing protection is required. These types of modifications are quite common, and allow a disabled individual the opportunity to complete the essential functions of his position with little or no impact on his co-workers.
Allowing a disabled employee to work a modified schedule may be a reasonable accommodation if it can be done without undue hardship. This may include adjusting arrival or departure times, or allowing a disabled individual to take more frequent breaks. Also, permitting an employee to use leave (paid or unpaid) is a form of reasonable accommodation when such leave is necessitated by an employee’s disability.
In some cases, reassignment to another position can be considered a reasonable accommodation if an accommodation within the disabled employee’s current position would pose an undue hardship. In-house and/or external vocational rehabilitation programs are helpful in assisting employees identify other positions for which they may be qualified; some even provide skills training to prepare them for the essential functions of a new position. Employers should reassign a disabled individual to an equivalent position when possible. If an employer finds the only accommodation is to reassign an employee to a position with a lower salary, the employer is not required to pay the disabled employee the higher rate of pay. Also, reassignment would be unreasonable and create an undue hardship if doing so would violate the rules of a seniority system, unless the employer has the right to alter the seniority system and has exercised that right on other occasions.
Once all reasonable accommodations have been presented and assessed, the final decision as to which accommodation will be offered lies with the employer. If/when the employee accepts the employer’s accommodation, it should be implemented as soon as possible, as unnecessary delays can be viewed by the EEOC as a violation of the ADA. Employers must communicate with their field supervisors on how to manage the reasonable accommodation, especially in regards to inquiries from other employees. When a supervisor is approached by an employee’s peer or co- worker with questions about what he may perceive as an individual receiving “special treatment,” the supervisor must not disclose that the employee is receiving a reasonable accommodation as the result of a disability. Doing so would violate Title I of the ADA, which, as we mentioned at the outset, mandates that an employer must protect the confidentiality of an employee’s medical records.
The accommodation process is an ongoing one, since an employee can request an accommodation for a disability at any stage of his career. Failing to request an accommodation up front does not preclude a disabled employee from requesting an accommodation at a later date when a need arises. An employer is obligated to view each accommodation request on its own merit.
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Disability Discrimination Complaints
When a qualified employee (or applicant) believes he has been discriminated against based on a disability or if the employer fails to engage in the reasonable accommodation process, Title I of the ADA affords the disabled individual the right to file a formal complaint of discrimination through his local EEOC office. The EEOC serves notice to the employer of the “charge” (allegation of discrimination). The employer is required to investigate the allegation (if they have not done so already) and respond, in writing, with their investigative findings as and present their rebuttal position on the allegation(s) of discrimination. The EEOC has the authority to request any additional information they feel is relevant to their investigation. They may review a company’s recruiting and hiring processes, and in some cases may even conduct a site visit to the location where the individual alleges the discrimination occurred.
If the EEOC feels their investigation shows sufficient evidence that discriminatory behavior has likely occurred, the parties will be encouraged to resolve the issue through the process of conciliation, or mediation. If conciliation attempts are unsuccessful, the EEOC has the authority to file a lawsuit against the employer in federal court. Compensatory and punitive damages may be awarded in cases involving discrimination based on a disability, however, there are limits on the amount a person can recover under the ADA/ADAAA, with the most being $300,000 for employers with more than 500 employees.
It is important to note that even if the EEOC determines there is not “reasonable cause” to substantiate an allegation of discrimination, the EEOC may dismiss their charge, but the individual who made the allegation retains the right to sue the employer in federal court. Further, filing a formal EEOC complaint does not prohibit an individual from also pursuing a claim under a State discrimination or tort law.
In the 5-year period from 2011 through 2015, the EEOC reports receiving 116,931 charges of discrimination based on a disability; finding reasonable cause in 5,255 of those charges; and collecting more than $475 million in settlements. In that same period the EEOC filed more than 200 lawsuits stemming from disability discrimination, collecting more than $52 million for individuals who were discriminated against based on a variety of impairments, including cancer, dwarfism, emphysema, epilepsy, HIV, multiple sclerosis, traumatic brain injury, herniated discs, depression, and anxiety disorder — just to name a few.5
Additional Challenges Faced by Railroad Claim Managers
Railroads face additional challenges in their efforts to comply with the ADA/ADAAA mandates as interpreted by the EEOC. This is not because railroads are any less committed to equal opportunity and protecting employees from discrimination than any other employer — the challenge, it appears, lies in part with the EEOC’s lack of understanding of how railroads operate. Our workforces are heavily unionized, and in light of the ongoing discussions between the EEOC
5 The EEOC does not disclose what percentage of the charges received or lawsuits filed were based on allegations of an employer’s failure to provide a reasonable accommodation for disabled individuals. Monetary recoveries reported are those awarded through EEOC actions only, and does not include settlements or judgments received by individuals exercising their right to file federal lawsuits per their EEOC Notice of Rights.
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and the National Labor Relations Board, it is clear that the EEOC struggles with the concept of collective bargaining agreements. Our managers are severely limited in making job modifications to accommodate a disabled union or agreement employee, since that employee’s duties, responsibilities, work hours and even benefits are mandated by a negotiated collective bargaining agreement. The EEOC does not appreciate those limitations.
Railroads are also a safety-sensitive industry — and with good reason. If our employees are not physically and mentally capable of safely performing their duties, they put themselves, their co- workers, and the general public at risk. To minimize that risk, railroads have strict medical standards for the most safety-sensitive positions — requirements that the EEOC may interpret as being discriminatory. The following example is taken directly from the EEOC Enforcement Guidelines:
“An employee has an on-duty occupational injury that has resulted in a temporary back impairment that does not substantially limit a major life activity. However, the employer views her as not being able to lift more than a few pounds and refuses to return her to her position. The employer regards her as having an impairment that substantially limits the major life activity of lifting. The employee has a disability under the ADA.”
Based on this example, if we have an injured employee whose treating physician has not provided our own medical staff with sufficient evidence to show that he has recovered enough to be returned to his safety-sensitive position without restriction, does our refusal to allow that risk constitute a violation of the ADA/ADAAA? At what point would the EEOC determine that our strict medical standards are discriminatory against this now-disabled employee?
Another concern this example raises is the EEOC’s lack of clear guidance on temporary impairments. As mentioned earlier, the EEOC has opined that a “temporary impairment that is sufficiently severe” can qualify as a disability. I suspect I have at least a couple of employees who feel their temporary sprained ankle or torn meniscus is “sufficiently severe” to qualify as a disability — but who is responsible for making that determination? And what about our occupational claims? Wouldn’t everyone who files a breathing or repetitive stress claim be considered to be disabled based on the EEOC’s “substantially limits a life activity” definition? And what if, while speaking with one of our claimants about that sprained ankle they suffered at work, they disclose that they also have asthma, or diabetes, or PTSD? Does that constitute a (possibly) disabled employee’s request for an accommodation? Unfortunately, there are probably more questions than answers around this topic. Nearly all companies have a written policy, procedure, or directive on how accommodations are to be handled and who is involved in the process. Some companies even have accommodation “committees” consisting of human resource specialists, medical staff, and law department representatives to ensure that each accommodation request is handled in accordance with the EEOC guidelines. I encourage you to seek out and become familiar with your company’s reasonable accommodation policy.
While ADA and ADAAA regulations are not likely to change the way we manage or handle our employee injury claims, they should definitely change the lens through which we view them. We are always vigilant in protecting the confidentiality of our claimants’ medical records, but maybe
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the fact that failing to do so could result in an ADA/ADAAA violation reiterates the importance of those safeguards. So for now, it is business as usual for us in handling employee injury claims. However, if the EEOC continues to push their interpretation of these regulations further along their over-reaching path and sometimes misguided path, I suspect that Petersen’s identification of the ADA as a challenge should not be so surprising after all.
Sources:
• Code of Federal Regulations (annual edition). Title 29: Labor. Part 1630: REGULATIONS TO IMPLEMENT THE EQUAL EMPLOYMENT PROVISIONS OF THE AMERICANS WITH DISABILITIES ACT. Friday, July 1, 2016. https://www.gpo.gov/fdsys/pkg/CFR-2016-title29- vol4/pdf/CFR-2016-title29-vol4-sec1630-1.pdf. • EEOC Enforcement Guidance Workers’ Compensation and the ADA: • Norfolk Southern Railway Company Pays $110,000 to Settle EEOC Disability Discrimination Suit; https://www.eeoc.gov/eeoc/newsroom/release/5-19-14.cfm. • Enforcement Guidance: Reasonable Accommodation and Unique Hardship under the Americans with Disabilities Act; U.S. Equal Employment Opportunity Commission; www.eeoc.gov/policy/docs/accommodation.html. • Facts about the Americans with Disabilities Act, U.S. Equal Employment Opportunity Commission; www.eeoc.gov/eeoc/publications/fs-ada.cfm. • Fact Sheet on Recent EEOC Litigation-Related Developments under the Americans with Disabilities Act (Including the ADAAA). U. S. Equal Employment Opportunity Commission. https://www.eeoc.gov/eeoc/litigation/selected/ada_litigation_facts.cfm
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Looking Back
Prior to our current General Claims Conference, which was resurrected in 1977, our predecessors were members of the Association of Railway Claim Agents (ARCA), founded in 1890. Members of the Canadian Pacific Railway General Claims Division found a box of dusty old Bulletins, which contained interesting reading of another era. We continue reprinting some of the articles from the last century in The Bulletin.
In this issue, we feature an article titled, “Architects of Truth.” It is the 65th article in the Looking Back series. The article printed in The Bulletin’s March 1960 issue. It was written by Mr. R.H. Hovis, District Claim Agent for the Southern Railway Company in Knoxville, TN.
Dale M. Cisecki, Publications Committee
Architects of Truth
If we are to serve our principals, we must effectively first feel there is room for improvement in our work and then take a serious look at our methods and procedures to determine how and in what manner we can improve our product.
Introduction of evidence in court is governed by well-established and exacting rules. Our investigative procedures must be equally exacting and even broader in their reaches. Our task is to build a “structure of truth” by reassembling the scattered fragments, the facts, resultant from the accident, endeavoring to make it whole again. The exacting work required of an architect is analogous to ours. His plans are in minute form, investigated to the point of perfection. He is a searcher for every fragment of truth which will improve and strengthen the structure he is planning. Every girder of the framework of his proposed structure has a physical truth, each contributing its required tensile strength, or else the structure will be weakened and might collapse. So, if the framework of our investigations is lacking in some truth which we did not discover or preserve, or we failed to visualize the damages of perjury or the dangers of prejudice, we can expect a weakened “structure of truth.”
Then, too, we must not overlook the fact that an architect has many obstacles to overcome in designing any given structure. There are no two exactly the same -- each has its own requirements. And so it is with us — each case is different and has its own unique problems. The architect must have imagination, patience and foresight, and many other attributes; but, most important, he must be committed to the proposition that the structure he is studying and planning will meet the need.
Obstacles in our investigations today are many, varied and difficult to solve. To name just a few:
(1) Perverted Uses of Demonstrative Evidence by Plaintiff: This is usually a tool concocted by plaintiff’s attorney from a circumstance after the accident; something devised, to be used at a specially chosen time during the trial to inflame and prejudice the jury. It becomes part of the scenery for the stage on which the play is to be enacted for and by the plaintiff.
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(2) Perjury: This is probably the biggest offender of all. For example, the plaintiff who refuses in the beginning to tell the truth, much less give a written statement; the plaintiff and his attorney who influence witnesses to change and refute written statements; and the surprise witness.
(3) Exaggerated Medico-Legal Testimony: This is usually done by a doctor who is recognized as favoring plaintiffs and habitually testifies for plaintiffs on the treatment and prognosis of injuries. He is a repeater witness, whose testimony gives the “professional touch” to influence and prejudice juries over the extent and permanency of the injuries.
(4) The Faking Plaintiff: “He is the leading actor in this fictitious drama.” His actions must tie in with the above three practices to deceive. They must support his claims. He may be rolled onto this stage in a wheel chair, deny he can use his prosthesis, or claim he cannot be rehabilitated. If he fails to be the cripple, unable to work with his back, knee, neck or whichever portion of his body he claims had been injured, then his whole scheme might fail to prejudice or inflame the jury.
Since the lawsuit had its beginning at the time of the accident, it usually does not reach trial counsel for several months. In the meantime, what should we have been doing in preparation? Faced with the obstacles just set forth, and others, experience tells us to begin drawing plans immediately from which a “structure of truth” can be erected by our builder, trial counsel, that withstand all the stresses and strains to which it will be surely subjected. Some of the fundamental steps in preserving the truth are:
(1) Making Timely Investigations: The most effective work and the best opportunity for finding the truth are possible immediately following an accident; before parties have left scene; when automobiles involved have not been moved from positions where they came to rest; while skid marks from automobile tires are plainly visible and undisturbed on pavement; and, in crossing accident with train, while locomotive is still on scene with train crew and local police officers there investigating.
This is the most opportune time for taking photographs. A commercial photographer or newspaper photographer can be used for key pictures, and should be, but the investigator should have his own camera and endeavor to take a sufficient number of snapshots to cover all details. One picture out of even twenty or thirty may be the one your counsel can use to win the lawsuit a year or more later, for that picture may reveal something which will completely destroy the credibility of a witness, or corroborate one of your own.
The reasoning behind the res gestae rule in law is that the truth is more profound and more likely to be rendered when an event takes place than afterwards. Humble on Evidence says, “Res gestae are the acts talking for themselves, and not what people say when talking about acts.” If you reach the scene of an accident soon enough after its occurrence, you will get the acts talking and not the people. For example, a picture of tire marks made by automobile skidding into side of locomotive, with locomotive
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still on crossing, with flashing lights working and crewmen and local police officers there investigating - acts speaking for themselves, the nearest thing to the act itself.
(2) Procuring Irrefutable Statements: Any statement worth taking should be painstakingly obtained. All crucial statements should be “cemented” by having them notarized. The notarized or sworn statement, as I see it, is the first stone of the foundation toward securing the facts in the case. The notary then becomes the impeaching witness. Statements from the driver, occupant of automobile or the injured persons, the statements which most vitally affect the lawsuit and which could win or lose it for either party, should be taken in question-and-answer form, under oath, using court reporter, or a voice recording machine.
Why spend long and tedious hours searching out and finding the truth and then let lack of perseverance or interest on our part, or difficulty in obtaining services of Notary or Justice of the Peace, prevent procurement of sworn statement? Such neglect can result in truth undergoing distortion, being so watered down as to become unrecognizable as the original statement taken by the investigator in ordinary “read-and-’is-true” form. This error is a most costly one -- the one on which plaintiff’s counsel most readily pounces. It is due to our lack of foresight and failure to project ourselves to that day in the courtroom when the statement, in whatever form it has been taken, will be put to the full test, even to being introduced into evidence and becoming a part of the record. When the witness swears, differently at the trial, it then would appear to be open perjury. Through actual knowledge of the truth we are prepared and in full command of our facts and at ease to anticipate our opposition.
(3) Maintaining Surveillance of Plaintiffs: We should remember to keep close watch of each plaintiff and his activities, especially that plaintiff who claims to be permanently injured when he is not. Such plaintiff will come into court limping, if he is claiming injury to any part of his lower extremities. If his back is involved, he will go through all kinds of contortions to move his audience.
Some of us may have misgivings about strict surveillance of a faker. Is it dishonest to catch a faker by taking movies of him? Should a thief be caught?
Under the proper circumstances movies of a faking plaintiff, in my opinion, are invaluable. Even if movies are made or an attempt has been made and this is found out by the faking plaintiff, even though the movies may never be used, this has a tremendous psychological effect. Catching a faking plaintiff with movies really taxes one’s ingenuity. It requires the hardest work one can do in his investigation, but it can be none. This is one of the very best ways of revealing the truth to a jury.
(4) Counteracting Exaggerated Medical Testimony: This is perhaps the most difficult step to handle effectively. Movies, as mentioned above, can, of course be used. It is difficult to counteract for more is involved because the plaintiff-minded doctor, the one who habitually testifies for plaintiffs and always magnifies the injuries, doesn’t mind perjuring himself for he feels he can hide behind his professional
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standing. Such perjury may afford us our opportunity: We can build our attack with his testimony in prior cases, keeping and procuring copies of transcripts of his testimony.
The Claims Research Bureau of Association of American Railroads should be given this information so steps can be taken to have such doctors reported to their respective medical societies.
(5) Completing and Perfecting Investigations: After an architect has drawn his plans for the framework of a structure, then come the details of interior and exterior finishing. This is also painstaking. Here is the work product which is going to be seen and used by people, influencing them and thereby affecting the value of the structure.
By this time the architect is really beginning to develop all there is to know about his plans for the proposed structure. When he discusses the plans with his builder, he is usually ready with the answers. When we are ready to discuss our plans with our trial counsel, how does our file look? How complete are our plans?
If we are to be “Architects of Truth” in preparing and investigating our cases, we must always keep our plans up to date; study them incessantly; be imaginative; industrious; concerned about how the finished work product is going to affect the people who will see it, and always patient to search out the real truth, the undergirding truths, on which our case is to be built. We must work towards the end of learning and preserving all there is to know about the facts in our cases, leaving nothing to chance. Trial counsel can then take our plans and investigation and erect a “structure of truth” therefrom which will withstand the preposterous antics and tactics of our adversaries during the trial.
When time comes for final preparations for trial, we do not want to consume the limited time of our counsel with details. His efforts must be centered on building the case from plans which we have given him, and he should not have to take his time doing anything which should have been done at time of accident. It might well be said at this point that when timely investigation is disregarded and months later we have to back at the insistence of someone else to try and remedy an omission, it takes much more time and energy, and usually, only partially successful.
Reflecting for the moment: If there were no adverse findings by juries, no NAACA influence to harass us with its stage acting in the courtroom, no perverted uses of demonstrative evidence, no perjury, no cooling-off of the truth by witnesses who had been unbiased at time, “friendly” statements were given, then we would have no challenges to meet -- no obstacles to overcome -- no chance to test our growth and achievements. We would have no natural urge to improve our work product or to intensify our efforts in searching out the truth.
What, then, is the measure of such success? We must commit ourselves to the belief we can courageously and honestly ascertain and establish the truth in an unimpeachable form. This means work; a renewed confidence in our abilities; and a firmer realization that, when the truth is carved
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out of the mass of facts involved in any accident, our success in diminution of damages, or verdicts in favor of our principals, will be the end result.
“You seem to be in a cheerful mood,” remarked a colleague. “I am,” replied the happy scientist. “My boy is going to follow in his dad’s footsteps. He has the same strong urge I had when I was his age.”
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Case Notes
Stuart A. Schwartz Legal Editor
Please send recent legal decisions of interest to Stuart via email at [email protected]
Charles Niles v. Pan Am Railways, Inc.
• Trespasser — Struck by Train — Summary Judgment • Trespasser passed out on tracks, struck by train • Railroad argues that crew maintained proper lookout, gave appropriate warnings, slowed train when peril was discovered • HELD — Railroad actions comported with duty of reasonable care, no evidence of negligence, summary judgment AFFIRMED
In another trespasser case decided at the same time as Pratt (see previous case note), the U.S. Court of Appeals for the Second Circuit this time applies New York law on the duty of railroads to trespassers to find that Pan Am and its crew acted properly and did nothing wrong in the subject accident. The case is Charles Niles v. Pan Am Railways, Inc., 2017 U.S. App. LEXIS 18153, 697 Fed. Appx. 94, 2017 WL 4162202. Plaintiff’s counsel was Murray N. Caplan; Caplan & Caplan P.C., Albany, NY and the railroad was represented by Kathleen M. Baynes; Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C., Albany, NY. Once again, the court’s unsigned opinion is unanimous, and states, in part:
Charles Niles appeals from the district court's grant of summary judgment dismissing his negligence claim against Pan Am Railways, Inc. Niles alleged that Pan Am failed to exercise reasonable care when one of its trains struck him as he was lying on the tracks, resulting in the amputation of his legs. The basic facts of this case are undisputed. On March 15, 2009, Niles was struck by a Pan Am train as it was traveling that evening through Hoosick Falls, New York. Niles was heavily intoxicated and had attempted to walk over the tracks in an area that was not a designated crossing point. He fell onto the tracks and lay there, passed out and motionless between
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the rails, for some while before the train approached. He was wearing a grey sweater, dark pants, black shoes, and a baseball cap. He came to when he heard the sound of the train's horn and he watched the train approach for approximately a minute. However, he was unable to move. The train operators (a conductor and an engineer) first noticed something on the tracks when they were approximately two-tenths of a mile from Niles. They initially believed it to be trash or debris. Traveling at ten miles per hour (the speed limit for the area), the operators monitored the object as the train drew closer. When they were 88 feet away, the operators realized that the object was a person and applied the emergency brake. The train came to a complete stop in 118 feet, after it had already passed over Niles and severed his legs. Niles brought suit in New York state court, alleging negligence. After removal to federal court, the United States District Court for the Northern District of New York granted summary judgment in favor of Pan Am, concluding that its train operators exercised reasonable care under the circumstances. This appeal followed. Under New York law, which governs here, a plaintiff alleging negligence must prove: "(i) a duty owed to the plaintiff by the defendant; (ii) breach of that duty; and (iii) injury substantially caused by that breach." Pasternack v. Lab. Corp. of Am. Holdings, 807 F.3d 14, 19 (2d Cir. 2015) (internal quotation marks omitted). "[A] railroad, like any other landowner, owes a duty to exercise reasonable care under the circumstances to persons on its land." Raspente v. Nat'l R.R. Passenger Corp., 111 F.3d 239, 242 (2d Cir. 1997). If the circumstance is a person on the tracks, that duty is more precisely defined: "Once it becomes apparent to the engineer that [a] person on the tracks cannot or will not remove himself from harm's way, the engineer has a duty to make an emergency stop." Id.; see also Chrystal v. Troy & B. R. Co., 105 N.Y. 164, 170 (1887) ("[W]ithout the imputation of negligence [the train engineer] could run on until he discovered that [the person on the tracks] was heedless of the danger. Reasonable care in the management of trains which must make their time between stations, and have the right of way, does not require more."). Pan Am has demonstrated its compliance with this duty. The unrebutted evidence shows that: the train operators spotted in the distance a dark, motionless object that appeared to them to be a bag of trash; there was no response to multiple horn blasts, which would logically confirm that the object was inert; the operators continuously monitored the object as they slowly approached; and once they recognized that it was a person, they immediately pulled the emergency brake. The train engineer had approximately 30 years of experience, had traveled the route through Hoosick Falls at least 300 times, and was unaware of prior accidents in the area. And the conductor testified that debris often appeared on the tracks. The record does not indicate that the operators: suffered from impaired vision; were distracted, sleep-deprived, or under the influence of drugs or alcohol; ignored clear signs that the object was a person; hesitated to brake once they identified the object as a person; operated the train at an excessive speed; or otherwise acted carelessly. The record does not reflect a history of performance problems by the operators or a defect in the brakes. Under these circumstances, a jury could not reasonably conclude that Pan Am was negligent. For the foregoing reasons, and finding no merit in Niles's other arguments, we hereby AFFIRM the judgment of the district court.
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Sarah Del Seronde v. BNSF Railway Co., et al.
• Grade Crossing Collision — Private Crossing — Summary Judgment • Plaintiffs’ vehicle struck by train at private crossing they were not authorized to use • BNSF argued plaintiffs were trespassers not authorized or invited to use the crossing, so could only be liable for willful or wanton misconduct • Plaintiffs said they were invited by signage to use the crossing, so entitled to a duty of ordinary care • HELD — Plaintiffs were trespassers, court applied proper standard of care, summary judgment AFFIRMED
Plaintiffs were driving over a marked private crossing when struck by a train, but said they were invited to use the crossing by virtue of its being marked with crossbucks and a STOP sign. The court says they were trespassers and BNSF had only to refrain from acts of willful or wanton misconduct, which were not demonstrated, so the railroad wins. The Court of Appeals of Arizona, Division One, ruled thus in Sarah Del Seronde et al. v. BNSF Railway Co., et al., 2017 Ariz. App. Unpub. LEXIS 1610. Representing plaintiffs were Robert Pottroff, Pottroff Law Office, and Luane Rose; Schneider & Onofry, Phoenix, AZ. Counsel for BNSF were William L. Thorpe, Bradley Shwer, and Adam T. Reich; Thorpe Shwer PC, Phoenix, AZ. Kelly Busby, Senior Claims Representative, Flagstaff, AZ, Amy Dolentz, Regional Manager, Minneapolis, MN, and Andrew Bownds, Senior Claims Representative, Amarillo, TX provided the initial investigation, claim handling and assistance at trial. The unanimous panel opinion of the court was written by Judge Jennifer Campbell, and reads in part: Tsinijinni Jean Seronde (Jean) was driving on I-40 with his mother, Ella Seronde. Attempting to bypass a traffic jam on the interstate, Jean pulled off and traveled approximately 10 miles south, eventually leaving the paved road and continuing down a gravel road. Jean was following several other vehicles also attempting to bypass the interstate gridlock. After driving over a cattle guard, Jean encountered a railroad crossing marked with a STOP sign and crossbuck sign (the Crossing). He stopped and looked in both directions before proceeding through the Crossing. Immediately after traversing the railroad tracks, Jean turned left following the vehicle in front of him and proceeded along a railroad right-of-way running parallel to the tracks. The group reached an impassable wash approximately one mile east of the Crossing and the vehicles turned around and drove back the way they had come. As Jean led the line of cars back toward the Crossing, a BNSF train approached from behind. The train crew saw the cars approximately one mile before the Crossing and began sounding the train's horn. Jean testified that he did not hear the horn and could only see the dust trail emanating from the other vehicles in his rear-view mirror. When Jean approached the Crossing, he slowed his vehicle, but failed to stop and ensure the tracks were clear before entering. As Jean drove onto the tracks, the train collided with his car. Jean suffered injuries and his mother Ella was killed in the collision. The superior court granted summary judgment for BNSF, ruling federal law preempted the Serondes' allegations that the train failed to slow as it approached the Crossing. This court affirmed
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that ruling, but reversed the dismissal of the Serondes' negligence claim insofar as it alleged BNSF had provided inadequate markings and warning devices at the Crossing because the superior court had not addressed that claim. See Seronde v. BNSF Ry. Co., 1 CA-CV 14-0166, 2015 WL 1516534, at *4, ¶ 16 (Ariz. App. April 2, 2015) (mem. decision). On remand, BNSF again moved for summary judgment, asserting that because Jean and Ella were trespassers at the time of the collision, its only duty was to avoid willfully and wantonly injuring them and it had satisfied that duty. The Serondes maintained Jean and Ella were not trespassers, but either licensees or invitees to whom BNSF owed a duty of reasonable care. The superior court granted summary judgment for BNSF, ruling as a matter of law that Jean and Ella were trespassers and BNSF had not breached the duty of care it owed them. The Serondes timely appealed. To establish BNSF's negligence, the Serondes were required to prove (1) the existence of a duty recognized by law requiring BNSF to conform to a certain standard of care, (2) BNSF's breach of that standard, (3) a causal connection between BNSF's conduct and the Serondes' injury, and (4) actual damages. Gipson v. Kasey, 214 Ariz. 141, 143, ¶ 9 (2007). Because the superior court ruled, as a matter of law, on the elements of duty and breach, we confine our analysis to those issues. Whether a defendant owes a duty of care to the plaintiff is a legal question the court decides based on the parties' relationship or other statutory and public policy considerations. Id. at 145-46, ¶¶ 19-25. Under Arizona common law, a landowner's duty to persons coming onto his or her premises is based on the status of the visitor. In the case of a trespasser, a person "who enters or remains upon land in the possession of another without a privilege to do so," see Restatement (Second) of Torts (Restatement) § 329 (1965), the landowner's duty is only to refrain from willfully or wantonly disregarding the person's safety. Webster v. Culbertson, 158 Ariz. 159, 161 (1988) (citation omitted). In contrast, in the case of an invitee — a person who enters the land because the landowner held the premises out as open to the public, see Restatement § 332 — the landowner has an affirmative duty to use reasonable care to make the premises safe for the invitee's use. Markowitz v. Arizona Parks Bd., 146 Ariz. 352, 355 (1985). The superior court ruled that Jean and Ella were trespassers as a matter of law. It also ruled that BNSF, as the landowner, owed them a duty to avoid willfully or wantonly injuring them and, as a matter of law, did not breach its duty. See Beesley v. Union Pac. R.R. Co., 430 F. Supp. 2d 968, 970 (D. Ariz. 2006) ("a landowner owes no duty toward a trespasser except not to willfully or wantonly injure him after discovering his peril"). Although the Serondes admitted BNSF owns the land on which the collision occurred, they argue that an exception to the trespasser rule applies because BNSF either (1) knew that trespassers regularly used the Crossing and acquiesced to that behavior, or (2) invited and induced Jean and Ella to use the Crossing. As a result, they argue Jean and Ella were no longer trespassers but invitees to whom BNSF owed a duty of reasonable care. Arizona follows Restatement § 334, which states that when a landowner knows or should know that trespassers "constantly intrude upon a limited area" of the landowner's property, he or she owes a duty to exercise reasonable care for the trespasser's safety. Id.; Delgado v. S. Pac. Transp. Co., 763 F. Supp. 1509, 1512 (D. Ariz. 1991). The Serondes contend BNSF had knowledge that trespassers constantly traversed the Crossing and therefore had a duty to use reasonable care when conducting its activities on the land. The evidence, however, does not establish that BNSF knew that trespassers "constantly intrud[ed]" on the Crossing.
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BNSF constructed the Crossing in 1983 to permit restricted access to the National Park Service for access to a road located immediately south of the Crossing that lies within the Petrified National Forest. This private access road is gated and not open to the public. BNSF also permits a neighboring landowner to use the Crossing to access her private, gated driveway south of the Crossing. Despite this evidence that the remote Crossing served only as access to the private roads located to the south, the Serondes contend there is evidence that the public regularly used the Crossing with BNSF's knowledge and acquiescence. First, they cite a United States Department of Transportation Inventory Information form in which BNSF estimated that 55 vehicles per day used the Crossing. However, because the inventory form does separate the vehicles into groups of trespassers as opposed to licensees or invitees, it is not probative of whether the public constantly intruded on the Crossing. See Ariz. R. Evid. 401(a) (defining relevant evidence, in part, as evidence that "has any tendency to make a fact more or less probable than it would be without the evidence"). Moreover, because BNSF identified the Crossing as private on its inventory form, this case is distinguishable from the one on which the Serondes rely, Ross v. Burlington Northern and Santa Fe Ry. Co., 63 F. Supp. 3d 1330 (W. D. Okla. 2014). In that case, the plaintiff offered evidence that the defendant railroad considered the crossing to be public and knew that the public used it, supporting an inference that the railroad had included public use in the "vehicles per day" estimate contained on its Department of Transportation inventory form. Id. The Serondes next argue that BNSF's engineer, Guy Nunley, agreed it was "not unusual" to see motorists in non-BNSF vehicles using the Crossing. A review of Nunley's testimony, however, shows he testified that most of the vehicles he saw near the Crossing belonged to BNSF and he could not say whether the non-BNSF vehicles were authorized to be on the right-of-way or were, in fact, trespassers. Nunley's testimony therefore does not raise a material question of fact regarding whether the public "constantly and persistently" intruded on the Crossing. See Orme Sch. v. Reeves, 166 Ariz. 301, 309 (1990) (noting evidence that may provide a "scintilla" or create the "slightest doubt" is not sufficient to withstand a motion for summary judgment); Shaw v. Petersen, 169 Ariz. 559, 560-61 (App. 1991) (a motion for summary judgment should not be denied simply upon speculation that some doubt, scintilla of evidence, or dispute over irrelevant or immaterial facts "might blossom into a real controversy in the midst of trial" (quoting Orme Sch., 166 Ariz. at 311)). Finally, we reject the Serondes' argument that BNSF approved of the public's use of the Crossing because it did not post signage stating "no trespassing" or otherwise restrict access to authorized persons. Absent evidence that the public persistently used the Crossing, BNSF's failure to post "keep out" signs could not constitute acquiescence to trespass. See Restatement § 334 (imposing a heightened duty of care only on a landowner who knows or should know that trespassers constantly intrude upon his land); Delgado, 763 F. Supp. at 1513 (knowledge of trespassers in general does not confer a duty to specific trespassers in other areas of whom a railroad has no knowledge). The Serondes allege BNSF's construction of the Crossing and installation of warning signs was an invitation or inducement to the public to use the Crossing. They rely on cases, however, in which the railroad had constructed or maintained a crossing for the benefit of either the plaintiff or the public in general. See St. Louis-San Francisco Ry. Co. v.
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Ready, 15 F.2d 370 (5th Cir. 1926) (decedent "was not a trespasser or licensee, but an invitee" because railroad established a crossing and treated it as a public crossing); Missouri Pac. Ry. Co. v. Bridges, 74 Tex. 520, 522 (1889) (holding that when a railroad voluntarily maintains a crossing, "knowing that it is a road in common use by the public, it in effect invites the use of it and proclaims it safe"); Cent. R.R. & Banking Co. v. Robertson, 95 Ga. 430 (1895) (railroad established the crossing "to accommodate the settlement," thereby inviting the public to use it); Creten v. Chicago, Rock Island and Pac. R.R. Co., 184 Kan. 387, 389 (1959) (the railroad's private crossing had been used for thirty years by the public generally and by the plaintiff to gain access to a field he rented on the south side of the tracks). Here, the evidence established that BNSF constructed the Crossing for the benefit of the National Park Service and permitted use by a neighboring landowner only. The Serondes did not offer any evidence that BNSF constructed the Crossing for the benefit of the motoring public or that it was regularly used by the public. Next, the Serondes argue the signage at the Crossing invited the public to trespass because BNSF placed the STOP sign and crossbuck sign in the same "sign configuration" it used at public crossings. However, the Serondes did not offer any evidence to support that claim. Even assuming, however, that BNSF installed the same warning signage at both public and private crossings, that fact alone would not constitute an invitation for trespassers to use a private crossing. Orme Sch., 166 Ariz. at 309; Shaw, 169 Ariz. at 560-61. Necessarily, the public would have to see the signs before they were invited or induced to use the Crossing. Unless Jean and Ella trespassed on BNSF property, they never would have seen the railroad crossing signs. Significantly, the Serondes did not offer any evidence that Jean and Ella relied on the STOP and crossbuck signs as an inducement to use the Crossing. Nevertheless, citing Arizona Copper Co. v. Garcia, 25 Ariz. 158 (1923), the Serondes contend that when a railroad recognizes a crossing by installing warning signs, it must use reasonable care to avoid injury to those using the crossing. In Garcia, the plaintiff was injured at a railroad crossing that intersected a highway. Id. at 159. Although the crossing was established without the proper statutory permission, the evidence showed that it had been a "thoroughfare between populous communities and frequented by travelers" for several years before the collision. Id. The railroad, recognizing the public use of the crossing, had installed several warning signs to alert drivers on the highway to the crossing. Id. The Arizona Supreme Court rejected the railroad's argument that it owed only the limited trespasser duty to the plaintiff because the crossing was unlawfully established. Id. at 159-60. The court ruled that in light of the railroad's knowledge of the "long- continued current of travel" over the crossing, its placement of the warning signs was a recognition of the crossing and "an invitation to cross upon such conditions as apply generally to a public crossing." Id. at 160. The court did not hold, as the Serondes suggest, that Arizona law presumes that a railroad invites the public to trespass and must act with reasonable care every time it places warning signs at a crossing. Similarly, the other cases the Serondes cite each involved continuous and open use of the crossing by the public in addition to the railroad's posting of warning signs. See Cleveland, C., C. & St. L. Ry. Co. v. Weil, 68 F.2d 48, 49-50 (7th Cir. 1933) (holding that where crossing in a public road had been used by general public for fifty-eight years, the evidence — including railroad's installation of warning signs — supported jury finding that railroad had given it over to public use and extended invitation to cross); Schoonover v. Baltimore & O.R. Co., 69 W. Va. 560 (1911) (reversing dismissal of negligence action because railroad had established the crossing to allow
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the public to access a park and, therefore, plaintiff was an invitee to whom it owed duty of reasonable care); Lake Erie & W.R. Co. v. Fleming, 183 Ind. 511 (1915) (railroad constructed a crossing for vehicles and pedestrians traveling between public street and poultry plant that was in "constant daily use by many people, and was the only way to reach the plant"); McGunegill v. Chesapeake & O. Ry. Co., 199 F.2d 302, 302-03 (7th Cir. 1952) (railroad's maintenance of a crossing to provide ingress and egress for buildings and a public swimming pool, coupled with its erection of warning signs, impliedly invited the public to use the crossing); Ross, 63 F. Supp. 3d at 1334 (evidence showed railroad considered the crossing to be public and knew an average of thirty vehicles per day used it); Chesapeake & Ohio Ry. Co. v. Pulliam, 185 Va. 908, 912-13 (1947) (evidence showed crossing was used daily by the general public for at least forty years); Belcher v. Norfolk & W. Ry. Co., 140 W. Va. 848, 853 (1955) (evidence showed crossing had been used by the public for eight to thirty-five years) overruled on other grounds by Bradley v. Appalachian Power Co. v. Elk Grocery Co., 163 W. Va. 332, 342 n.16 (1979). In this case, there is no evidence that BNSF placed the signage at the Crossing in response to trespassers' constant and persistent use of the Crossing. To the contrary, as discussed, there is no evidence that the public regularly used the Crossing. Therefore, BNSF's installation of the STOP and crossbuck signs does not support an inference that it invited the public to use the Crossing. Relying on Restatement § 367 and several out-of-state cases, the Serondes allege that Jean and Ella fell within another exception to the general rule regarding trespassers. They allege this exception changed their status from trespassers to invitees, requiring BNSF to act with reasonable care toward them. Section 367 provides: A possessor of land who so maintains a part thereof that he knows or should know that others will reasonably believe it to be a public highway is subject to liability for physical harm caused to them, while using such part as a highway, by his failure to exercise reasonable care to maintain it in a reasonably safe condition for travel. Arizona, however, does not follow the Restatement position that a landowner's duty changes to one of reasonable care if he "knows or should know that others will reasonably believe" they are travelling on public land. Rather, Arizona law requires a plaintiff to show that the defendant permitted open use by the public of the land in question. Olsen v. Macy, 86 Ariz. 72, 74. Interpreting § 367 in Olsen, the Arizona Supreme Court stated: We find the law to be that if an owner or occupant of property has permitted persons generally to use or establish a way across it under such circumstances as to induce a belief that it is public in character, he owes to persons availing themselves thereof the duty due to those who come upon the premises by invitation. Id. at 74 (emphasis added). While plaintiff urges us to adopt this standard, we must follow both Arizona statute and Arizona Supreme Court jurisprudence as more fully set forth above. Again, because the Serondes did not offer any evidence from which a reasonable jury could conclude that BNSF permitted the public to openly use the Crossing, the undisputed facts demonstrate that Jean and Ella were trespassers
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when they entered BNSF's property. The superior court correctly ruled, as a matter of law, that BNSF owed the plaintiffs a duty to avoid willfully and wantonly causing them harm. See Webster, 158 Ariz. at 161 ("In the typical 'trespasser' case, plaintiff may not recover unless the landowner has been guilty of some willful or wanton disregard for the plaintiff's safety."); Barnhizer v. Paradise Valley Unified Sch. Dist. No. 69, 123 Ariz. 253, 254 (1979) ("Ordinarily, the duty of a landowner to a trespasser is to not willfully or wantonly injure him."); Restatement § 333 (unless an exception applies, "possessor of land is not liable to trespassers for physical harm caused by his failure to exercise reasonable care (a) to put the land in a condition reasonably safe for their reception, or (b) to carry on his activities so as not to endanger them"); Delgado, 763 F. Supp. at 1516 (concluding that because none of the exceptions to Restatement § 333 applied, railroad owed trespasser "the mere duty not to willfully or wantonly injure him"). The superior court also determined, as a matter of law, that BNSF had not breached that duty. Whether a defendant has exercised the care required to satisfy its duty is generally a question of fact for the jury, but a court may rule as a matter of law when "no reasonable juror could conclude that the standard of care was breached." Gipson, 214 Ariz. at 143, ¶ 9 n.1 ; see also Markowitz, 146 Ariz. at 357; Coburn v. City of Tucson, 143 Ariz. 50, 53-54 (1984). We agree with the superior court. The Serondes did not offer any evidence that would allow a reasonable jury to conclude BNSF willfully and wantonly caused Jean and Ella harm. Arizona courts group willful and wanton conduct with reckless conduct as an "aggravated form of negligence." Williams v. Thude, 188 Ariz. 257, 259 (1997) ("Gross negligence and wanton conduct have generally been treated as one and the same."). Wanton misconduct is negligence that "involves the creation of an unreasonable risk of bodily harm to another (simple negligence) together with a high degree of probability that substantial harm will result (wantonness)." DeElena v. S. Pac. Co., 121 Ariz. 563, 566 (1979); see also S. Pac. Transp. Co. v. Lueck, 111 Ariz. 560, 562 (1975) ("Conduct is wanton if a defendant intentionally does or fails to do an act, knowing or having reason to know of facts which would lead a reasonable man to realize that his conduct not only created an unreasonable risk of harm to another but involved a high degree of probability that such harm would result."). The evidence showed that the train crew began sounding the train's horn when they saw the cars on BNSF's right-of-way, and applied emergency braking procedures as soon as they observed Jean enter the Crossing. There is no dispute that Jean was aware of the tracks and the danger they posed before he entered the Crossing at the time of the collision because he had stopped and looked in both directions when he first crossed the tracks only minutes earlier. BNSF's duty to avoid willfully and wantonly injuring Jean and Ella did not require it to post "no trespassing" signs, fence the Crossing to keep trespassers away, or install lights and crossing gates to prevent trespassers from disregarding the STOP sign and inherent danger of the train tracks and entering the Crossing without stopping. Barnhizer, 123 Ariz. at 255 (1979) (noting a landowner's duty to a trespasser is to avoid willfully and wantonly injuring him, not "to prevent every possibility of harm"); cf. Delgado, 763 F. Supp. at 1515-16 (rejecting argument that railroad's alleged failure to prevent trespassers from boarding its trains was a failure to carry on its activities with reasonable regard for persons it had reason to know were trespassing). Arizona courts have long recognized that "[a] railroad track of itself is unquestionably a warning of danger,
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and it is the duty of every person who sees such a danger signal to look and listen before going on the track." Canion v. S. Pac. Co., 52 Ariz. 245, 251 (1938). Because no reasonable juror could find that BNSF breached the applicable standard of care, the superior court correctly granted summary judgment for BNSF. Gipson, 214 Ariz. at 143, ¶ 9 n.1; DeElena, 121 Ariz. at 569 (noting evidence of wantonness must "be more than slight and it may not border on conjecture" in order to create a material question of fact for the jury).
Wilkinson, Carmody & Gilliam Attorneys at Law
400 Travis Street, Suite 1700 Shreveport, Louisiana 71101
Telephone – 318-221-4196 Fax – 318-221-3705
Representing the Railroad Industry since 1895
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www.wilkinsoncarmodyandgilliam.com
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Robert Houser v. Norfolk Southern Railway Company
• FELA — Motor Vehicle Accident — Summary Judgment • Plaintiff injured when company vehicle was struck by another vehicle which skidded out of control on slippery highway • Expert report asserted that driver of company vehicle failed to observe safe driving practices • Railroad argued that report was conclusory and lacked any support in the record • HELD — Motion to strike report GRANTED, therefore no evidence of railroad negligence, so summary judgment also GRANTED
As often happens when an employee is injured while occupying (not driving) a company vehicle, plaintiff asserted through his expert that the driver had failed to drive carefully and safely, but the expert report had little or no factual substance to support the conclusion, so the U.S. District Court for the Western District of New York struck the expert report and left plaintiff with no evidence of negligence. In Robert Houser v. Norfolk Southern Railway Company, 2017 U.S. Dist. LEXIS 145272, 2017 WL 3917143, Judge Elizabeth Wolford neatly dismantled the report of well-known plaintiff’s expert, Dr. Carl Berkowitz, and tossed plaintiff’s case. Plaintiff was represented by James M. Duckworth and Voci Ravenell Bennett, Keller & Goggin PC, Philadelphia, PA; and Norfolk Southern was represented by our friend Susan C. Roney and Lynnette Nogueras- Trummer, Nixon Peabody LLP, Buffalo, NY. Mark M. Owens Jr., Senior Claim Agent, Harrisburg, PA, and Rodney Tatum, Manager Occupational Claims, Norfolk, VA, provided the investigation, claim handling and assistance at trial. Judge Wolford’s opinion states, in part: Plaintiff Robert Houser (plaintiff') commenced this action pursuant to the Federal Employers' Liability Act, 45 U.S.C. § 51 et. seq. (FELA), claiming that he had been injured by the negligence of his employer, Norfolk Southern Railway Company (defendant), when he was riding as a passenger in a truck owned by defendant and operated by Gary Miller (Miller). Plaintiff alleges that Miller failed to exercise reasonable care in avoiding a motor vehicle collision with Suzanne Clarke (Clarke) after Clarke lost control of her vehicle due to inclement road conditions. The collision dislodged the front leftmost tire from the truck, causing Miller to lose control of the truck and veer left across lanes of traffic. The truck came to a sudden and complete stop in a drainage ditch, which jolted plaintiffs knee into the dashboard, allegedly causing injury. Plaintiff and Miller were employed by defendant as bridge and building mechanics. In this position, plaintiff was primarily required to maintain bridges and to "replace ties on open deck bridges." Plaintiff had worked with Miller in some capacity for about 25 years. On February 19, 2013, plaintiff and Miller were tasked with setting up guardrails along bridges near Canisteo, New York. They arrived for work at defendant's headquarters in Hornell, New York, around 6:30 A.M., at which time plaintiff and Miller participated in a "safety meeting" and a "job briefing." Upon completing their duties at the first job site at around 10:00 A.M., plaintiff and Miller packed the truck and began driving towards the next location. Miller drove the truck between job sites on the date of the accident. The weather and road conditions on February 19th were "snowy, windy, and wet." Plaintiff
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described the truck's rate of speed as "relatively slow" and estimated that he and Miller were traveling "around 25 MPH" due to the weather conditions…(noting that the truck was traveling at 25 MPH in a highway vehicle accident report, dated February 19, 2013, and completed by plaintiff)). Plaintiff explained that they "were being real careful." As plaintiff and Miller approached a curve in the road, plaintiff observed Clarke's car drive into focus as she began "fishtailing" and "swerving back and forth." Plaintiff recalled that Miller "started slowing down immediately" and turned the truck as far right as he could — bracing it up against the guardrail — in order to avoid a collision. Clarke's vehicle swerved across the double yellow line and collided with the front of the truck, which dislodged the truck's leftmost front tire and caused the wheel rim to hit the road. plaintiff testified that the accident occurred within about five seconds from the time he first observed Clarke's vehicle. At this point, Miller lost control of the truck, and began "hollering, 'I can't hold it. I can't steer it.'" The truck then veered into a roadside ditch, causing plaintiff's leg to jam against the dashboard. Upon coming to a complete stop, Miller and plaintiff exited the truck and tended to Clarke and her passengers. Clarke and her passengers were treated by medical personnel and ambulatory staff. Plaintiff returned to work for several weeks after the incident, but his condition continued to deteriorate as he experienced worsening chronic pain in his leg. On February 17, 2015, plaintiff filed this action against defendant and Clarke, alleging that his knee injury resulted from the negligence of both defendant and Clarke. Clarke was eventually terminated from this action pursuant to a stipulation of partial discontinuance, entered on July 1, 2016. After discovery concluded, on January 27, 2017, defendant filed a motion for summary judgment and a motion to strike the expert report of Dr. Carl Berkowitz (Dr. Berkowitz). Defendant contends that plaintiff failed to raise a genuine dispute of material fact as to defendant's negligence, and that Dr. Berkowitz's expert report should be stricken as speculative and unsupported by the record. Plaintiff opposes defendant's motions. Rule 702 of the Federal Rules of Evidence sets forth the necessary requirements for the admissibility of expert evidence. Specifically, Rule 702 provides that the expert's opinion must: (1) "help the trier of fact to understand the evidence or to determine a fact in issue"; (2) be "based on sufficient facts or data;" (3) be "the product of reliable principles and methods"; and (4) have resulted from the expert's "reliabl[e] appli[cation of] the principles and methods to the facts of the case." The Supreme Court's decision in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993) recognized the "gatekeeping role" of a trial judge in determining the admissibility of expert testimony. Id. at 597. "The court performs the same role at the summary judgment phase as at trial; an expert's report is not a talisman against summary judgment." Raskin, 125 F.3d at 66. "The trial judge's gatekeeping task under Rule 702 and Daubert is two-fold: she must determine whether the evidence 'both rests on a reliable foundation and is relevant to the task at hand.'" Colon ex rel. Molina v. BIC USA, Inc., 199 F. Supp. 2d 53, 69 (S.D.N.Y. 2001) (quoting Daubert, 509 U.S. at 597). "An expert's opinions that are without factual basis and are based on speculation or conjecture are . . . inappropriate material for consideration on a motion for summary judgment," as are "[a]n expert's conclusory opinions." Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 311 (2d Cir. 2008). At the outset, the Court notes that Dr. Berkowitz's "report suffers from several flaws, not the least
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of which is that it is inadmissible on summary judgment. Courts in this Circuit have uniformly held that unsworn expert reports do not satisfy the admissibility requirements of Fed. R. Civ. P. 56(e), and cannot be used to defeat a summary judgment motion without additional affidavit support." Berk v. St. Vincent's Hosp. & Med. Ctr., 380 F. Supp. 2d 334, 352 (S.D.N.Y. 2005); see, e.g., Scottsdale Ins. Co. v. United Indus. & Constr. Corp., 137 F. Supp. 3d 167, 177 (E.D.N.Y. 2015), reconsideration denied, No. 12-CV-5732 (RRM) (LB), 2016 U.S. Dist. LEXIS 180795, 2017 WL 52581 (E.D.N.Y. Jan. 4, 2017). Even assuming that Dr. Berkowitz's report was submitted in admissible form, it still fails to satisfy the strictures of Rule 702. In determining whether an expert's opinion should be excluded as unreliable, "the district court should undertake a rigorous examination of the facts on which the expert relies, the method by which the expert draws an opinion from those facts, and how the expert applies the facts and methods to the case at hand." Amorgianos v. AMTRAK, 303 F.3d 256, 267 (2d Cir. 2002). Dr. Berkowitz makes several faulty, unsupported, and conclusory assertions that form the basis of his ultimately flawed opinion. The Court notes that Dr. Berkowitz has apparently reviewed various relevant materials in preparing his report. These materials include plaintiff's audio statement, the final police report resulting from the accident, Clarke's deposition taken on February 24, 2016, and plaintiffs deposition taken on February 23, 2016. Nonetheless, Dr. Berkowitz appears to base his opinions on facts not supported by the record. For example, Dr. Berkowitz opines that "slippery road conditions caused both [Clarke] and [Miller] . . . to lose control of their vehicles." However, plaintiff stated that it was only after Clarke's collision dislodged the front tire from the truck — causing the wheel rim to hit the ground — that Miller began to lose control of the vehicle. Dr. Berkowitz also opined that defendant failed to properly train and supervise Miller, or alert him of the hazardous weather conditions existing on the date of the accident. Yet, there appears to be no support in any of the documents reviewed by Dr. Berkowitz for this assertion; in fact, there is evidence that plaintiff and Miller participated in a "safety meeting" and a "job briefing" before they left defendant's headquarters. Plaintiff also stated that Miller had been driving with particular care due to the inclement road conditions on the date of the accident. Plaintiff's statements directly conflict with Dr. Berkowitz's finding that "[t]here was no evidence that [Miller] . . . considered the hazardous effect of water on the roadway and its interaction with the safe movement of his motor vehicle." Indeed, Dr. Berkowitz opined that Miller should have reduced his speed below 30 MPH in order to have safely navigated the road conditions. However, plaintiff informed Cochrane that he believed Miller was driving the truck at about 25 MPH, and no evidence was submitted to contradict this statement. By contrast, Clarke testified that she was driving about 40 MPH around the curve. Dr. Berkowitz further determined that Miller failed to safely operate the truck given the road and weather conditions, which caused the truck "to make a sudden, unexpected and violent stop on the roadways [sic] opposite shoulder's ditch and embankment." After acknowledging that the front left tire was blown off the truck during the collision, Dr. Berkowitz — amazingly — continued to blame Miller for the truck's uncontrolled momentum, stating that "[i]nstead of stopping, [Miller] continued to move his vehicle forward under power riding on the front left wheel rim. . . ." This conclusion completely ignores the undisputed fact that the truck came to a "violent stop" only after it had sustained a near head-on-collision with Clarke's vehicle and had lost one of its front tires. Furthermore, there is no record evidence to support Dr. Berkowitz's opinion that any injury caused
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to plaintiff's knee could have been "avoided if the passenger seat had not been pushed forward to accommodate special equipment regularly carried behind the front seat in the winter months." During plaintiff's deposition, he testified that the passenger portion of the cab "was a pretty confined seating area." Plaintiff then indicated, "Another thing, we carry a lot of junk in that small cab. The seat could have been up a couple notches." plaintiff identified this "junk" as "flashers for road accidents" and "winter gear." plaintiff was subsequently asked whether he had previously indicated "that the seat was pretty pushed forward," and plaintiff responded, "No. I didn't say that . . . I said those cabs are not spacious." Plaintiff further testified that he "was sure" that his knee was not pressed up against the dashboard, and that he "had as much leg room as [he] could get to be comfortable." Dr. Berkowitz also, in conclusory fashion, opined that "[t]his accident could have been avoided and injuries reduced had [Miller] followed both the State of New York and National safe operating procedures for the existing adverse weather conditions." However, he does not identify the "safe operating procedures" referred to or the record evidence that demonstrates that they were violated. Finally, Dr. Berkowitz speculated that had Miller stopped the truck as soon as he noticed Clarke, Clarke would have simply been able to drive safely passed Miller and plaintiff. This opinion completely ignores the fact that Clarke caused the accident by fishtailing over the double yellow line in the middle of the road. There is no evidence that had Miller decided to refrain from taking quick evasive action, Clarke's vehicle would not have still crashed into the truck. Notably, the accident took place within five seconds from the moment that Clarke's vehicle came into view. "A minor flaw in an expert's reasoning or a slight modification of an otherwise reliable method will not render an expert's opinion per se inadmissible. 'The judge should only exclude the evidence if the flaw is large enough that the expert lacks 'good grounds for his or her conclusions."' Amorgianos, 303 F.3d at 267 (quoting In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 746 (3d Cir. 1994)). Here, the Court finds that Dr. Berkowitz's unsworn expert report is speculative, based upon an unsupported and inaccurate interpretation of the record evidence, and posits blanket conclusory statements of causation and liability. See Major League Baseball Props., Inc., 542 F.3d at 319, 329 (finding that the expert opinion was not based on factual evidence); Buckley v. Deloitte & Touche USA LLP, 888 F. Supp. 2d 404, 413 (S.D.N.Y. 2012) (finding that the expert "fail[ed] to provide 'sufficient factual foundation' to support his conclusion" and based his opinion on "conjecture" (quoting Boucher v. U.S. Suzuki Motor Corp., 73 F.3d 18, 22 (2d Cir. 1996))), aft d, 541 F. App'x 62 (2d Cir. 2013); Macaluso v. Herman Miller, Inc., No. 01 CIV. 11496 (JGK), 2005 U.S. Dist. LEXIS 3717, 2005 WL 563169, at *8 (S.D.N.Y. Mar. 10, 2005) (finding that the expert's "analysis fails to meet th[e standard set forth in Rule 702] because it is based on incorrect factual assumptions that render all of his subsequent conclusions purely speculative"). Therefore, the Court finds that Dr. Berkowitz's report is not sufficiently reliable, and, as such, it cannot be considered admissible evidence in opposition to defendant's motion for summary judgment. Since Dr. Berkowitz's report has been excluded pursuant to Rule 702, the Court will consider the disposition of defendant's motion for summary judgment upon the remaining submissions in the record. See, e.g., Raskin, 125 F.3d at 66-67; Cacciola, 127 F. Supp. 2d at 180. Defendant argues that there is no evidence in the record that Miller acted negligently in operating the truck on the date of the accident. Under FELA, "any railroad engaging in interstate commerce 'shall be liable in damages to any person suffering injury while he is employed by such carrier in
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such commerce . . . for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier.'" Tufariello v. Long Island R. Co., 458 F.3d 80, 86-87 (2d Cir. 2006) (quoting 45 U.S.C. § 51). "To prevail on a FELA action, 'the plaintiff must prove the traditional common law elements of negligence: duty, breach, foreseeability, and causation." Bruno v. Metro. Transp. Auth., 344 F. App'x 634, 636 (2d Cir. 2009) (quoting Tufariello, 458 F.3d at 87). "What constitutes negligence for [FELA's] purposes is a federal question, not varying in accordance with the differing conceptions of negligence applicable under state and local laws for other purposes. Federal decisional law formulating and applying the concept governs." Urie v. Thompson, 337 U.S. 163, 174, 69 S. Ct. 1018, 93 L. Ed. 1282 (1949). However, "although common-law principles are not necessarily dispositive of questions arising under FELA, unless they are expressly rejected in the text of the statute, they are entitled to great weight in our analysis." CONRAIL v. Gottshall, 512 U.S. 532, 544, 114 S. Ct. 2396, 129 L. Ed. 2d 427 (1994). Here, defendant's submissions establish that Clarke's negligent operation of her motor vehicle — at speeds exceeding safe driving behavior on icy road conditions — caused the collision with the truck's front tire and resulted in plaintiff and Miller uncontrollably veering into the nearby ditch and embankment. During Clarke's deposition, Clarke testified that she skidded on "black ice," which caused her to cross into the opposite lane and collide with the truck. Plaintiff testified that Miller lost control of the truck "when the front tire was removed" after Clarke's vehicle had crashed into the front of the truck. Defendant also submitted plaintiff's audio statement where plaintiff was recorded stating that Miller "did everything humanly possible he could have done to avoid this collision." (Dkt. 60-11). Specifically, plaintiff stated that Miller was driving "real careful" due to weather conditions, and that when Clarke's car fishtailed across the lanes of traffic, Miller "started slowing down immediately," steered the truck "up against the guard rail[, and] got as far to the right as he could to try to avoid the collision." Therefore, the court concludes that defendant has carried its initial burden of establishing that there is no genuine issue of material fact regarding its negligence or the negligence of Miller as its employee. Giving due consideration to the relaxed summary judgment standard in FELA cases, the court still finds that plaintiff's claim may not proceed to a jury. Plaintiff has failed to submit any evidence that Miller or defendant was negligent. Plaintiff's self-serving speculative testimony to the contrary does not constitute sufficient evidence of negligence. New World Sols., Inc. v. NameMedia Inc., 150 F. Supp. 3d 287, 326 (S.D.N.Y. 2015) ("[U]nsubstantiated and self-serving testimony is insufficient, without more, to defeat summary judgment"); Brusso v. Imbeault, 699 F. Supp. 2d 567, 583 (W.D.N.Y. 2010) ("[A] plaintiff's deposition testimony alone is insufficient to defeat a motion for summary judgment"); Wurtzel v. Starbucks Coffee Co., 257 F. Supp. 2d 520, 525 (E.D.N.Y. 2003) (stating that a party may not rely on 'mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment' (quoting Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986))). When confronted with his prior recorded statements as to Miller's exercise of due care and caution, plaintiff appeared to indicate that he made these statements to protect Miller from being taken off the job force by the division engineer. To this end, plaintiff explained, "who knows what could
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have been done differently." Plaintiff further speculated, "[w]ell, being a Monday morning quarterback, if we would have been going slower, it might have been avoidable. Or if he would have cut across the lane as she was coming to us, it could have been avoided, even being out in those conditions." Significantly, plaintiff testified that his recollection of the facts as described in his audio recording was true and accurate. "[R]easonable foreseeability of harm is an essential ingredient of [FELA] negligence." Gallick v. B & O R.R., 372 U.S. 108, 117 (1963). FELA "holds an employer to a standard of 'reasonable forseeability of harm' and measures that standard by what 'a reasonably prudent person would anticipate' in light of all the surrounding circumstances." Gallose v. Long Island R.R. Co., 878 F.2d 80, 86 (2d Cir. 1989) (quoting Gallick, 372 U.S. at 117-19); see Peyton v. St. Louis Southwestern Ry., 962 F.2d 832, 833 (8th Cir. 1992) ("Whether an employer has breached its duty of care is measured by the degree of care that persons of ordinary, reasonable prudence would use under similar circumstances and by what these same persons would anticipate as resulting from a particular condition." (quotations and citation omitted)). There is no record evidence evincing that the exigent circumstances confronted by Miller were conjured by any of his own actions. Plaintiff does not submit any evidence to contradict the inescapable conclusion that the accident resulted because Clarke lost control of her vehicle due to her speed and the inclement road conditions, crossed into oncoming traffic, and crashed into the truck. Miller, who had only about five seconds to react, steered the truck as far right as he could — bracing it along the roadside guardrail in an attempt to avoid the accident. Clarke collided with the truck, dislodging the front leftmost tire from the truck, which caused the wheel rim to fall upon the road. As Miller and plaintiff veered left toward the drainage ditch, Miller warned plaintiff, "hollering, 'I can't hold it. I can't steer it.'" Thus, the Court finds that plaintiff has provided no proof other than his speculative, self-serving, and self-contradictory testimony and the conclusory opinions of his expert in an attempt to demonstrate that Miller acted contrary to the expected behaviors of a reasonably prudent person under same or similar circumstances. This is wholly insufficient to defeat defendant's summary judgment motion. Finally, plaintiff also posits that there is a question of fact as to whether defendant negligently failed to adhere to its own safety standards. Specifically, plaintiff points to two provisions in defendant's Highway Vehicle Operator's Manual. The first provision states: "An employee driving a Company vehicle must comply with all applicable traffic laws and government regulations." Plaintiff points to absolutely no traffic law or government regulation that was violated by Miller's conduct. In fact, the evidence indicates that it was Clarke, and not Miller, who crossed over the double yellow line into oncoming traffic. See N.Y. Veh. & Traf. Law § 1126(a); Rodriguez v. Gutierrez, 138 A.D.3d 964, 967, 31 N.Y.S.3d 97 (2d Dep't 2016) ("Crossing a double yellow line
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into the opposing lane of traffic, in violation of Vehicle and Traffic Law § 1126(a), constitutes negligence as a matter of law, unless justified by an emergency situation not of the driver's own making." (internal quotation omitted)); see also Gadon v. Oliva, 294 A.D.2d 397, 398, 742 N.Y.S.2d 122 (2d Dep't 2002) (holding that crossing the double yellow line was not excused by the emergency doctrine where the defendant braked during foreseeably inclement and slippery road conditions). To the extent that Miller crossed lanes of traffic after the collision occurred, the evidence is undisputed that this took place only after Clarke's vehicle had stripped the truck of its leftmost front tire, causing the wheel rim to fall upon the asphalt surface. The second provision states: "Interiors of vehicles must be kept clean and free of nonessential items. When possible, loose articles should be transported in other than the passenger compartment and objects must not be transported on the rear window deck of automobiles. Unapproved devices or accessories may not be applied to any company vehicle." Plaintiff contends that "additional materials or gear" should not have been stored in the passenger cab. Presumably, this argument alludes to Dr. Berkowitz's unfounded assertion that plaintiff's seat was pushed forward too far which either caused or worsened plaintiffs knee injury. As previously noted, plaintiff testified that the seat may have been "up a couple notches," but he confirmed that he never testified that his seat was "pushed pretty forward." Instead, plaintiff explained that he had merely observed that the passenger cab was not spacious, and that he had made himself as comfortable as possible. In addition, there is no evidence that the "road flares" stored behind the seat caused any actual impediment to plaintiffs posture. Indeed, plaintiff testified that road flares are "required by the DOT." Therefore, the Court concludes that plaintiff has failed to carry his burden of submitting "some evidence" of negligence, and thus, defendant's motion is granted.
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Earl Smith v. CSX Transportation, Inc.
• FELA — Occupational Injury — Summary Judgment • B&B laborer produces expert report to support claim for disability due to heavy lifting, repetitive motion, vibration, etc. • CSX moves to strike report for lack of scientific and factual foundation • HELD — Report fails to meet standards for reliability and admissibility, motion to strike is GRANTED, and thus plaintiff has no evidence of negligence, so summary judgment is GRANTED
Often encountered in FELA cases, Dr. Arthur Wardell submitted an expert report to support plaintiff’s claim of occupational injury, but the court says the report has no scientific or factual support, so it is stricken, and with that, plaintiff’s case fails. The decision of the Court of Appeals of Georgia, First Divison is in Earl Smith v. CSX Transportation, Inc., 2017 Ga. App. LEXIS 523, 2017 WL 4856316. Plaintiff’s counsel were Willard Moody, Sr. and Gregory Turpin, Moody Law Firm, Portsmouth, VA and Charles M. Cork III, Decatur, GA, and CSXT was represented by Michael N. Loebl and James Purcell; Fulcher Hagler LLP, Augusta, GA. Shanon Serigney, District Manager of Risk Management, Evans, GA and Matt MacDonald, Manager Field Investigations, in the Augusta, GA, claims office provided the investigation, claims handling and assistance at trial. This was a unanimous panel decision, authored by Judge McMillian, and reads in part, as follows: Earl Smith appeals the trial court's grant of summary judgment to CSX Transportation, Inc. (CSX), asserting that the trial court erred in (1) excluding the testimony of his expert witness, Dr. Arthur Wardell, and (2) granting summary judgment to CSX on his claims brought under the Federal Employers' Liability Act (FELA), 45 U.S.C. § 51 et seq. For the reasons that follow, we affirm. [T]he record shows that Smith began working for CSX in 1980 as a laborer in the bridges and buildings department. Over the course of his 32-year career with CSX, Smith worked in a variety of different roles, including as a bridge helper, flagman, assistant foreman, foreman, and track inspector. Smith's duties with each job varied. For example, when Smith worked as a flagman — in 1981, at various times from 1996 to 1999, and again from 2001 until 2006 — he was responsible for directing rail traffic and overseeing contract workers but was not engaged in physical labor. However, when Smith worked as a track inspector, including from 1999 to 2001 and 2006 to 2012, his duties included pulling and driving spikes and changing rails and bolts in addition to inspecting the track. According to Smith, this work hurt his back, his hands, and his knees. And in separate, prior lawsuits, he settled claims against CSX related to a back injury, a right knee injury, and carpel tunnel syndrome in both hands. In 2009, Smith began experiencing pain in his right shoulder and eventually underwent surgery in July 2010. He returned to work following surgery but then began experiencing the same pain in his left shoulder, which led him to leave CSX on occupational disability in February 2012. In July 2012, Smith filed this FELA lawsuit, alleging that he was exposed to "harmful repetitive motion, cumulative trauma, awkward work postures, vibration, and other harmful conditions" that caused injury to his shoulders and right foot. In support of his claims, Smith offered the testimony of his specific causation expert, Dr. Wardell, who opined that Smith's occupational duties, including his
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use of heavy tools and other types of work, were a significant factor in causing the acromioclavicular arthritis in his left and right shoulders, which led to his occupational disability. Following Dr. Wardell's deposition, CSX moved to exclude his testimony and for summary judgment. The trial court granted CSX's motion to exclude Dr. Wardell after finding that, although Dr. Wardell is a qualified orthopedist whose testimony is relevant, his opinions in this case are not reliable. And because Smith was therefore unable to provide evidence of specific causation, the trial court granted summary judgment to CSX. This appeal followed.
In his first enumeration of error, Smith asserts that the trial court erred in excluding Dr. Wardell's testimony…Smith first contends that the trial court erred in excluding Dr. Wardell's testimony because FELA relaxes the standard of causation that would otherwise apply in a personal injury case and consequently lowers the standard by which trial courts assess expert witness testimony. We disagree. "The Federal Employers' Liability Act is a federal statute that gives a railroad employee the right to sue his employer in state or federal court for injury or death resulting in whole or in part from the railroad company's negligence." Norfolk Southern R. Co. v. Zeagler, 293 Ga. 582, 586 (2) (748 SE2d 846) (2013). To bring a FELA claim, the plaintiff must prove each of the traditional common law elements of negligence: duty, breach, foreseeability, and causation. See id. Under FELA, however, the causation standard is relaxed, and "the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought." (Citation and punctuation omitted.) Norfolk Southern R. Co. v. Schumpert, 270 Ga. App. 782, 784 (1) (608 SE2d 236) (2004). "Nevertheless, some evidence of causation is required; FELA is not a no-fault workers' compensation statute." Id. And, "[i]n all FELA lawsuits, the plaintiff bears the burden of proving medical causation." (Citation omitted.) Lee v. CSX Transp., Inc., 233 Ga. App. 30, 31 (503 SE2d 309) (1998).
Although the standard for proving causation is relaxed in a FELA case, it does not necessarily follow that the standard for evaluating the admissibility of expert testimony under OCGA § 24-7- 702 is similarly relaxed. This question appears to be one of first impression in Georgia, but federal courts have held that the trial court's "application of Rule 702 and Daubert . . . is not altered in any way by the substantive law governing plaintiff's claims. While this is a FELA case, to which a relaxed standard of causation applies, the standard of causation under FELA and the standards for admission of expert testimony under the Federal Rules of Evidence are distinct issues and do not affect one another." (Citation, footnote, and punctuation omitted.) Bowers v. Norfolk Southern Corp., 537 FSupp.2d 1343, 1352 (M.D. Ga. 2007), aff'd Bowers v. Norfolk Southern Corp., 300 Fed. App'x 700 (11th Cir. 2008). "Thus, the fact that FELA employs a relaxed standard of causation does not mean that in FELA cases courts must allow expert testimony that in other contexts would be inadmissible." Id. ("admission of expert testimony is controlled — even in FELA cases — by the Federal Rules of Evidence and Daubert"). See also Claar v. Burlington Northern R. Co., 29 F3d 499, 503 (9th Cir. 1994) ("Nor does it mean that in FELA cases courts must allow expert testimony that in other contexts would be inadmissible."). We find these cases to be persuasive and likewise hold that FELA does not alter the standards for the admission of expert witness testimony under OCGA § 24-7-702. We now turn to Smith's assertion that the trial court erred in treating this "routine orthopedic case" as a "toxic exposure case" in excluding Dr. Wardell's testimony under OCGA § 24-7-702. Again, we disagree. OCGA § 24-7-702 provides:
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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 which have been or will be admitted into evidence before the trier of fact. The proffering party bears the burden of presenting evidence of reliability in order to meet the standards of OCGA § 24-7-702 (b). See HNTB Ga., Inc. v. Hamilton-King, 287 Ga. 641, 646 (2) (697 SE2d 770) (2010). "Though Daubert involved scientific experts, the Supreme Court has since made it clear that the strictures of Rule 702 and Daubert apply with equal force to non-scientific expert witnesses." (Citation omitted.) Bowers, 537 FSupp.2d at 1350. Thus, a medical doctor's opinions regarding injury causation "clearly fall within Federal Rule of Evidence 702's scope of 'scientific knowledge' and must satisfy Daubert." Wilson v. Taser Intl., Inc., 303 F. App'x 708, 713 (11th Cir. 2008). "Importantly, any step that renders the analysis unreliable renders the expert's testimony inadmissible." Bowers, 537 FSupp.2d at 1350. The trial court has broad discretion in deciding how to assess the reliability of expert testimony. See Hamilton-King, 287 Ga. at 642-43 (1); United States v. Frazier, 387 F3d 1244, 1264 (11th Cir. 2004). This discretion affords the trial court "considerable leeway . . . in deciding which tests or factors to use to assess the reliability of an expert's methodology." Bowers, 537 FSupp.2d at 1351. Here, the trial court considered three factors in assessing the reliability of Dr. Wardell's opinions: whether his conclusions were based upon sufficient facts or data, whether he reached those conclusions by use of reliable principles and methods, and whether he applied those principles and methods reliably to the facts of the case. See OCGA § 24-7-702 (b). The trial court first found that Dr. Wardell's use of a "differential etiology" to opine on the cause of Smith's injuries is a legally sufficient methodology. The court then turned to the facts and data Dr. Wardell relied upon and how he applied his methodology to the facts of this case. At deposition, Dr. Wardell testified that he is not Smith's treating physician and that he saw Smith one time for approximately one hour. And although Dr. Wardell agreed that knowledge of the work Smith performed for CSX is important, his only understanding of Smith's work history is what Smith was able to recount for him. Dr. Wardell also agreed that his opinions depend on the reliability of Smith's report. In a handwritten memorandum prepared for Dr. Wardell, Smith recounted a "list of activities" that he performed, along with the "worst tools and applications." These activities included "standing on 20" wide swinging scaffold all day long, climbing bridge or ladders numerous times a day," using a "13/16 36" bit to drill into bridge timber," and "loading and unloading 40-120 lb. granite stone by hand." With respect to the frequency or duration of any particular task, Smith's descriptions were vague. For example, when describing how he would load creosote onto the back of a work truck with lug hooks, he explained "and this happened more often than you think." Moreover, Smith admitted that he used a variety of tools, some of which required him to operate machinery standing up versus squatting down, and that they used all different muscle groups. Smith testified that he would have no way of calculating what percentage of time he was in any particular posture.
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Dr. Wardell confirmed that Smith did not specify the frequency with which he performed his various duties and that he was unable to quantitate the level of repetitive stress Smith experienced in his various job duties or whether Smith performed any particular task in excess. Nonetheless, Dr. Wardell did not attempt to bridge this factual gap by watching anyone perform any of the duties Smith complained of or traveling to a railroad yard to take any measurements relevant to repetitive stress injuries. Dr. Wardell did not review any studies regarding ergonomics relevant to Smith's particular job duties, nor is he aware of any literature connecting acromioclavicular arthritis to railroad work. Instead, Dr. Wardell relied upon sports medicine literature linking heavy weight lifting to acromioclavicular arthritis. After examining these facts, the trial court determined that Dr. Wardell's testimony is "surprisingly unsubstantiated and superficial — Dr. Wardell simply concludes that because a weight lifter or body builder gets the same injury from overhead lifting then the plaintiff must also have exacerbated his condition from work-related overhead lifting." Accordingly, the trial court found Dr. Wardell's opinions lacked the necessary reliability and thus must be excluded at trial. Based on the record before us, we find that the trial court did not abuse its discretion in excluding Dr. Wardell's testimony. "[A]n expert must do more than just state that she is applying a respected methodology; she must follow through with it. In deciding whether an expert employed a reliable method, the [trial] court has discretion to consider whether the expert has adequately accounted for obvious alternative explanations." (Citations and punctuation omitted.) Brown v. Burlington Northern Santa Fe R. Co., 765 F3d 765, 773 (7th Cir. 2014) (although FELA plaintiff need only prove employer's negligence was a cause (and not the sole cause) of his injury, without performing an investigation, plaintiff's expert could not rule out other activities as the sole cause of plaintiff's condition). Furthermore, we have previously cautioned against confusing general causation with specific causation - here, whether certain work duties can cause acromioclavicular arthritis versus whether Smith's work duties actually caused or exacerbated his acromioclavicular arthritis. See Shiver v. Ga. & Fla. Railnet, Inc., 287 Ga. App. 828, 830 (1) (652 SE2d 819) (2007). In this case, Smith's medical history, along with his claim that an unknown combination of various work duties caused his degenerative injuries, present an unusually complex specific causation issue. The record shows that Smith's medical history is complicated by diagnoses of chronic obstructive pulmonary disorder, hypertension, diabetes, obesity, and rheumatoid arthritis. Medical records also indicate that Smith may suffer from fibromyalgia — as evidenced by his "chronic widespread pain, fatigue, and insomnia" — and that he is a life-long smoker. In addition, Smith has a family history of osteoarthritis, rheumatoid arthritis, and fibromyalgia. The complexity of these factors "underscores the need for Dr. [Wardell] to have done more than simply adopt [Smith]'s history as his causation opinion and opine, without scientific support," that Smith's work history caused his injury. Wilson, 303 F. App'x at 714 (medical degree does not authorize doctor to testify when he does not base his methods on valid science). In fact, Dr. Wardell agreed that osteoarthritis is the most common type of arthritis and that there is a high correlation with aging, with virtually everyone experiencing some degree of osteoarthritis by age 40, and that smoking, obesity, and hereditary influences also affect the development of osteoarthritis. Again, we find federal courts addressing similar issues to be persuasive. The Seventh Circuit has found that a FELA plaintiff's expert witness failed to utilize a reliable methodology where he
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"entirely failed to personally observe [plaintiff's] working conditions, obtain a written work description, or perform scientific tests. He also failed to investigate several possible causes of [plaintiff's] health problems." Brown, 765 F3d at 773. In addition, the court also found fault with the expert's lack of knowledge of the duration or frequency of the plaintiff's exposure to the alleged condition at work, concluding that "[c]omparing two unknown, potentially wide-ranging variables is not a scientific exercise." Id. at 774 (observing plaintiff's actual working conditions is important to avoid "ruling in" risk factors that were not actually present at his job). We also take special note that another federal court has previously found Dr. Wardell's testimony unreliable in a FELA case for similar reasons. Bowers, 537 FSupp.2d at 1354-59. The Bowers court first explained that Dr. Wardell had failed to demonstrate that his causation opinions were testable, had failed to offer any error rate for his opinions, had not shown evidence that his opinions have been peer reviewed or that he used a peer-reviewed source to reach his opinions, and had failed to show the general acceptance of his opinions. Id. at 1353-54. Turning to the five additional factors trial courts are permitted to use for testing expert opinions set forth in the advisory committee notes under Rule 702, the court found that Dr. Wardell was not testifying about matters growing naturally and directly out of research he conducted independent of litigation, but rather that he had developed his opinions expressly for purposes of litigation. Id. at 1354 (noting that plaintiff's counsel sent him from his home in Savannah to Suffolk, Virginia to see Dr. Wardell, not for treatment, but to build his case for litigation). As in this case, the Bowers court concluded that Dr. Wardell had "unjustifiably extrapolated from an accepted premise to an unfounded conclusion." Id. at 1355 ("Absent from this vague premise is any specific information about the amount of [movement] that is harmful to an individual, the length of time over which such harm normally occurs, and the nature of the resulting harm."). "Expert testimony lacks 'fit' when a large analytical leap must be made between the facts and the opinion." (Punctuation omitted.) Id. at 1351 (citing GE v. Joiner, 522 U.S. 136, 147 (118 SCt 512, 139 LE2d) (1997)). These fatal flaws are likewise present in this case. "[W]here evidence almost exists, a judge may be tempted to surrender his or her duty to a jury. This is exactly what should not happen." Tootle v. CSX Transp., Inc., 746 FSupp.2d 1333, 1340 (S.D. Ga. 2010). Accordingly, the trial court did not abuse its discretion in excluding Dr. Wardell's testimony. See Bowers, 537 FSupp.2d at 1361 ("[O]pinions based on a differential diagnosis are admissible only if the trial court determines that the expert reliably applied the differential diagnosis method."); Moore v. Cottrell, Inc., 334 Ga. App. 791, 794 (1) (780 SE2d 442) (2015) (trial court did not abuse its discretion in excluding expert's testimony where, inter alia, he did not inspect workplace machinery at issue and it was unclear what analysis he applied). In his second enumeration of error, Smith asserts that the trial court erred in granting summary judgment to CSX. He first argues that CSX is not entitled to summary judgment because he provided admissible expert testimony regarding causation. However, for the reasons stated in Division 1, this argument fails. Smith next asserts that his lay testimony was sufficient to prove causation and avoid summary judgment. This argument is without merit. To avoid summary judgment, the plaintiff "must establish, with competent evidence" each element of his FELA claim. (Emphasis supplied.) Zeagler, 293 Ga. at 596 (2). As one federal court has explained, "[t]he relaxed causation standard is simple enough to meet in cases involving readily understood injuries, e.g., those that result from being hit by a train. But when there is no obvious
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origin to an injury and it has multiple potential etiologies, expert testimony is necessary to establish causation." (Citation and punctuation omitted.) Brown, 765 F3d at 771. And, "[i]n particular, for most cumulative trauma injuries, courts follow the general principle that a layman could not discern the specific cause and thus they have required expert testimony about causation." Id. See also Brooks v. Union Pacific R. Co., 620 F3d 896, 899 (8th Cir. 2010) (in FELA cases, expert evidence required to establish causal connection unless injury had an obvious origin, such as a broken leg from being struck by an automobile). Thus, where the cause of the injury — in this case, the onset of acromioclavicular arthritis — is not obvious and the plaintiff has no admissible medical expert testimony to support his claim that his employer caused his injury, the employer is entitled to summary judgment. See Shiver, 287 Ga. App. at 831 (1). Accordingly, because Smith is unable to present admissible expert testimony to prove that his injuries were caused by CSX, the trial court did not err in granting summary judgment to CSX.
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Michael Todd Ryder v. Union Pacific Railroad Co. et al.
• Grade Crossing Collision — Wrongful Death — Summary Judgment • Truck struck by train at private crossing equipped with crossbucks • Plaintiffs say crossing should have had gates, train crew failed to sound “emergency” horn signal, was not properly trained • UP argues that crossing complied with Louisiana law, horn claims are preempted by FRA regulations • HELD — Crossing complied with state law, horn claims are preempted, summary judgment on those claims GRANTED
The subject vehicle drove onto a crossing despite a clear view of the approaching train and the court says the crossing was not a “dangerous trap” and that proper warning signs and audible warnings were provided, so UP’s summary judgment arguments on those issues prevail. The case is Michael Todd Ryder et al. v. Union Pacific Railroad Company, 2017 U.S. Dist. LEXIS 160434 in the U.S. District Court for the Middle District of Louisiana. Plaintiffs were represented by Benjamin B. Saunders, Joseph M. Miller and Carisa R. German-Oden; Davis, Saunders & Miller, Mandeville, LA; Robert L. Pottroff and Nathan L. Karlin; Pottroff & Karlin LLC, Manhattan, KS. The Union Pacific defense team consisted of John E. McElligott, Jr. and Kevin Dills; Davidson, Meaux Sonnier & McElligott, Lafayette, LA and David A. Fraser; Fraser, Wheeler, Bergstedt & Courtney LLP, Lake Charles, LA. The court’s opinion is by Judge Shelley Dick, and states, in part: This lawsuit arises out of a train car collision that occurred on February 16, 2015, which resulted in three fatalities. The collision occurred at United States DOT Grade Crossing No. 755983T in De Soto Parish, Louisiana, between a pickup truck driven by John Cameron Watson (Watson) and a UP train. The crossing at issue intersected Private Drive, a private gravel driveway, leading to a pipeline jobsite. To gain access to the job site, vehicles traveling on Louisiana Highway 5 turn east onto Private Drive. After turning onto Private Drive, there is approximately seventy (70) feet of gravel road on the western side of the railroad tracks and eighty-five (85) feet of gravel road on the eastern side of the tracks, leading to a locked gate providing access to the jobsite. After crossing the tracks, vehicles would have to stop and unlock the gate manually before proceeding on to the jobsite. On the date of the accident, Watson and his two passengers, Michael Todd Ryder, II, and Herbert Paul Barras, III, were returning to the job site after lunch. Watson was the last in line of four vehicles waiting for the gate to be manually unlocked to gain access to the job site. Due to the preceding vehicles, Watson's vehicle did not fit in the eighty-five (85) feet of roadway between the crossing and the jobsite gate. Instead of stopping within the seventy (70) feet of gravel drive available in advance of the crossing, Watson pulled behind the third vehicle in line at the gate, with his vehicle straddling the crossing. At the same time, a UP train approached the crossing traveling in a southbound direction. UP engineer, Kenneth Charles, sounded the locomotive horn while approaching the crossing to warn the vehicle on the tracks. Watson failed to move his vehicle to a position of safety to avoid the
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collision. All three occupants of the vehicle were killed in the collision. Plaintiffs brought suit against various defendants including UP, alleging inter alia, that UP was negligent in failing to install lights and gates or other additional warning devices at the subject railroad crossing. Additionally, plaintiffs allege that UP failed to ensure the horn on the locomotive complied with federal law, failed to use an emergency horn sequence (which plaintiffs contend is a series of short horn blasts), and failed to instruct its employees about the deficiencies in train mounted audile warning systems, and the safety issues caused by those problems. UP moves this Court to dismiss those claims pertaining to the installation of additional warning devices on the basis that plaintiffs cannot establish either a duty or causation. UP also moves to dismiss those claims pertaining to inadequate audible warning based on federal preemption. In opposition, plaintiffs argue that several conditions of the crossing made it unreasonably dangerous giving rise to an extra statutory duty on UP to provide additional warnings at the crossing. As to the inadequate audible warning claim, plaintiffs argue that UP's testing of the locomotive horn was not in compliance with federal regulations, and the engineer failed to use an emergency horn sequence. In this case, Louisiana law applicable to warning devices at railroad grade crossings can be found in La. R.S. 32:169, which provides that railroads must erect and maintain "Railroad Cross Buck" signs at all public railroad crossings. The railroad also has the duty to maintain its right-of-way adjacent to the railroad tracks. Specifically, Louisiana law requires the railroad to make sure that vegetation and other structures that may obstruct the view of motorists is cleared for a distance of fifty (50) feet in width and three hundred (300) feet in length of either side of the crossing. Once a railroad has complied with its statutory obligations, a railroad may have additional duties to warn motorists to the presence of the crossing if it is shown that the crossing constitutes a "dangerous trap." The Louisiana First Circuit Court of Appeal discussed the "dangerous trap" doctrine in Rivere v. Union Pacific Railroad Co. as follows: Any other duties of the railroad with regard to further safety devices rises in proportion to the increasing dangerousness of the crossing, as determined by an approaching vehicle's ability to see the oncoming train. This concept is referred to as the "dangerous trap" doctrine. A crossing is considered a "dangerous trap" when it is unusually dangerous because the view of the motorist is so obstructed as to require that he place himself in a position of peril dangerously near the tracks, before he has a view of the oncoming train. When a dangerous trap exists, the railroad company will be held liable, unless it can show that it took unusual precautions, such as reducing the speed of the train, or increasing its warning or providing signaling devices, etc. Louisiana law also places an obligation on motorists to yield to approaching trains. When approaching a railroad crossing, identified by a cross buck sign, a motorist must slow down to a reasonable speed considering the existing conditions or must stop if necessary "where the driver or operator has a clear view of any approaching train." The parties are in agreement that there is no statutory duty under Louisiana law for railroads to install lights and gates at private railroad crossings. The parties also agree that the railroad crossing in question is a private crossing. It is also undisputed that the subject crossing was marked with a railroad cross buck and stop sign on the date of the accident. Plaintiffs provide undisputed summary judgment evidence that UP internally changed the categorization of the subject crossing
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as 'private with public characteristics' a few years prior to the accident. The Court finds that it is clear from the evidence presented that, as to the advance warnings, UP complied with Louisiana law for public crossings, despite the crossing being private, by placing the appropriate cross buck sign in accordance with La. R.S. 32:169.43. The record indicates that there were no obstructions in either direction of the tracks. Photographs of the crossing reveal a completely unobstructed view of the train as it approached the crossing. Nicholas Courteaux (Courteaux), the driver of the truck directly in front of Watson, testified that Watson stopped behind Courteaux, who was stopped just east of the tracks, while waiting on the gate to the private property to be unlocked. Darius Carroll (Carroll), the conductor of the UP locomotive, testified that when he could first see the vehicles, the last vehicle was close to the track but not on it. After the engineer started blowing the horn, Carroll observed the truck pull all the way onto the tracks. Plaintiffs' complaint provides that there was eighty five (85) feet of gravel road from the crossing to the locked fence and seventy (70) feet of gravel road on the approach between the highway and the crossing. The evidence is clear that if Watson would have heeded the cross buck and stop sign on the East side of the crossing, he would have had a clear line of sight of the approaching locomotive. Additionally, there was nothing preventing him from backing up off of the tracks in order to avoid the collision. While the facts of this case present a tragic accident, there seems to be no explanation as to why Watson decided to stop his vehicle on the tracks while waiting for the gate to be unlocked. Plaintiffs argue that the following alleged conditions, or combination of conditions, render the subject railroad crossing unreasonably dangerous: high speed trains; loud oil field equipment and commercial truck traffic; non-compliant vegetation and a bend in the track which prevents motorists from seeing oncoming trains; unguarded crossing; lack of crossing agreement for non- compliant vegetation and signage; and short storage due to adjacent highway and a gate which can cause oil field traffic to become backed up on the crossing. In support of these arguments, plaintiffs offer the affidavits of Alan J. Blackwell, Joellen Gill, and William R. Hughes. The Rule 26 report of Joellen Gill is attached to each affidavit. Each affiant attests to the opinions and findings of the Gill report which opines that the crossing in question was unreasonably dangerous for those reasons listed above. Specifically, the report opines that five conditions of the crossing (unguarded crossing, high speed trains, short storage, commercial truck traffic, and lack of crossing agreement) gave rise to a duty on UP to implement additional warning devices beyond those present on the date of the accident. Furthermore, plaintiffs point to UP's knowledge of a collision in 2008 and a near miss in 2009 as additional factors requiring additional warning devices at the crossing. Finally, plaintiffs suggest the type of additional advance warnings UP could have implemented such as a contract flagger or other low cost warning devices based on the use of the crossing. Even considering all of the conditions and all of the evidence submitted by plaintiff as true, there is no summary judgment evidence to show that Watson had to place himself in a position of peril in order to see an oncoming train. Plaintiffs suggest that this Court should apply a different theory which would impose a duty on railroads to provide additional warning devices other than when the crossing is considered a "dangerous trap." In support of this argument, plaintiffs cite to the Louisiana Supreme Court case of Duncan v. Kansas City Southern Railway.
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Plaintiffs assert that the Duncan court imposes a duty on railroads to provide additional warnings when the crossing presents a "unique and local safety hazard." However, the language plaintiffs cite to in Duncan was verbiage contained in an expert report. The Duncan court merely stated that based on the expert testimony, "the jury could have reasonably concluded that [the railroad] had a duty to plaintiffs to protect against the unique hazard presented by the [crossing]." Since the court did not explain what the unique hazard was or what the requisite duty required, this statement by the court is mere dictum and does not present an alternate theory of imposing any additional duty on a railroad. The Duncan court analyzed and ultimately found that the railroad had breached its duty to keep their right-of-way clear so that there were no sight deficiencies for drivers stopped at a stop sign. Thus, the Duncan court applied the "dangerous trap" doctrine when it found the duty breached by the railroad required motorists to place themselves in a position of peril in order to see oncoming trains. The undisputed facts of this case show that the crossing in question was void of any sight deficiencies. As such, this court declines plaintiffs invitation to recognize an additional theory, namely "unique and local safety hazard," to impose extra statutory advance warning duties on the railroad. The court will analyze whether UP had additional duties to warn based on the application of the "dangerous trap" doctrine. Defendant cites numerous cases applying the "dangerous trap" doctrine that were decided in the railroad's favor. In Holland v. Norton, the court granted summary judgment in favor of the railroad because evidence showed there were no obstructions and the motorist could have placed himself in a position where he could have clearly seen down the entire length of the track. In Benavidez v. Kansas City Southern Railway, the court granted summary judgment in favor of the railroad, concluding that the public crossing was not a "dangerous trap" because the motorist had sufficient vision down the track a distance of a couple of car lengths. In Rivere v. Union Pacific Railroad, the court overturned the district court's finding of a percentage of fault on the railroad because the plaintiff did not have to place himself in a position of peril to view the tracks. Most recently, the Louisiana Supreme Court in Davis v. Canadian National Railway upheld the trial court's decision in granting summary judgment in favor of a railroad when applying the "dangerous trap" doctrine. In Davis, the plaintiff's mother was killed by an oncoming train as she walked across a railroad crossing. The court stated: "[t]he uncontested facts showed that she did not have to place herself in a position of peril in order to see the oncoming train and that she simply did not look in either direction before crossing the tracks." The court concluded that the railroad was under no further duty to warn roadway users of the presence of the crossing other than that required by La. R.S. 32:169(A).72 As illustrated by the cases cited above, the extra statutory duty on a railroad to provide additional warning above and beyond those mandated by La. R.S. 32:269 is determined under the "dangerous trap" doctrine. The evidence presented shows that UP complied with its duty to maintain adequate sight distances and with La. R.S. 32:169. Watson was not required to place himself in a position of peril in order to have a view of the oncoming train. Therefore, the crossing did not constitute a "dangerous trap" and UP was under no further duty to install additional warning devices. UP's Motion for Partial Summary Judgment on plaintiffs claims concerning additional warning devices is GRANTED. Defendant's second Motion for Partial Summary Judgment addresses those allegations involving the locomotive horn, use thereof, and the failure to instruct employees about the alleged deficiencies in locomotive audible warning systems.
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Specifically, defendant asserts that it complied with the federal audibility requirements of 49 C.F.R. 229.129. UP also argues that federal law subsumes the issues of sounding the locomotive horn during emergencies and the instruction of its employees, thus preempting plaintiffs claims on those issues. Federal preemption of railroad claims is set forth within the Federal Railroad Safety Act (FRSA). The purpose of the FRSA is "to promote safety in all areas of railroad operations and to reduce railroad-related accidents, and to reduce deaths and injuries to persons . . ." "[T]he Secretary [of Transportation] is given broad powers to 'prescribe, as necessary, appropriate rules, regulations, orders, and standards for all areas of railroad safety . . . .'" "Where a state statute conflicts with, or frustrates, federal law, the former must give way." The pre-emption provision of 49 U.S.C. 20106 provides in pertinent part: (a) National uniformity of regulation. (1) Laws, regulations, and orders related to railroad safety and laws, regulations, and orders related to railroad security shall be nationally uniform to the extent practicable. (2) A State may adopt or continue in force a law, regulation, or order related to railroad safety or security until the Secretary of Transportation (with respect to railroad safety matters), or the Secretary of Homeland Security (with respect to railroad security matters), prescribes a regulation or issues an order covering the subject matter of the State requirement. A State may adopt or continue in force an additional or more stringent law, regulation, or order related to railroad safety or security when the law, regulation, or order- (A) is necessary to eliminate or reduce an essentially local safety or security hazard; (B) is not incompatible with a law, regulation, or order of the United States Government; and (C) does not unreasonably burden interstate commerce. (b) Clarification regarding State law causes of action. (1) Nothing in this section shall be construed to preempt an action under State law seeking damages for personal injury, death, or property damage alleging that a party- (A) has failed to comply with the Federal standard of care established by a regulation or order issued by the Secretary of Transportation (with respect to railroad safety matters), or the Secretary of Homeland Security (with respect to railroad security matters), covering the subject matter as provided in subsection (a) of this section;
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(B) has failed to comply with its own plan, rule, or standard that it created pursuant to a regulation or order issued by either of the Secretaries; or (C) has failed to comply with a State law, regulation, or order that is not incompatible with subsection (a)(2). (2) This subsection shall apply to all pending State law causes of action arising from events or activities occurring on or after January 18, 2002. (c) Jurisdiction – Nothing in this section creates a Federal cause of action on behalf of an injured party or confers Federal question jurisdiction for such State law causes of action. In order for plaintiffs claims to survive pre-emption, they must show that UP failed to comply with a Federal standard of care; failed to comply with its own plan, rule, or standard; or failed to comply with State law as set forth above. Here, both parties concede that 49 C.F.R. 229.129 dictates the audibility requirements of locomotive horns. The sections applicable to the parties' contentions are those governing the audibility of the horn and the accompanying testing procedure. The Code of Federal Regulations requires the horn equipped on a locomotive to produce a sound within a minimum level of 96 dBA and a maximum of 110 dBA.80 Additionally, the CFR provides regulations for the testing of the locomotive horn sound level. Plaintiffs counter the defendant's preemption defense by contending that the railroad failed to comply with the federal regulations on horn audibility Specifically at issue are the following provisions of 49 C.F.R. 229.129(c): (8) Background noise shall be minimal: the sound level at the test site immediately before and after each horn sounding event shall be at least 10 dB(A) below the level measured during the horn sounding. (10) Written reports of locomotive horn testing required by this part shall be made and shall reflect horn type; the date, place, and manner of testing; and sound level measurements. These reports, which shall be signed by the person who performs the test, shall be retained by the railroad, at a location of its choice, until a subsequent locomotive horn test is completed and shall be made available, upon request, to FRA as provided by 49 U.S.C. 20107. In support of its claimed compliance with the statute, defendant submitted two tests of the locomotive horn, one dated May 20, 2010, and one dated February 20, 2015, both attested to by Jeff Brinkmeyer. The first test shows the average horn sound level on the lead locomotive involved in the accident, as 101.2 dBA. The second test shows an average horn sound level of 98.7 dBA. Both tests showed horn sound level inside the requisite parameters set forth in 29 C.F.R. 229.129. Plaintiffs argue that the evidence submitted by defendant does not provide adequate proof of compliance with the regulations. In support of this contention, plaintiffs submit the expert report of Michael F. Seidemann, Ph.D (Seidemann). In his report, Seidemann opines that the tests submitted by defendant lack ambient noise measurements required by 49 C.F.R. 229.29 (sic) and
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thus call into question the validity of the tests. Seidemann offers no other reason suggesting that the tests were invalid and, for purposes of his expert opinion, Seidemann accepted and utilized the results of the May 20, 2010 test. Plaintiffs submit no further evidence in support of their contention. While the C.F.R. does not use the term "ambient noise," the court assumes, for the sake of argument, that Dr. Seidemann was referring to section (c)(8) requiring background noise during the test to be "minimal." The regulations do not require that background noise measurement be recorded in order for a report to be valid. Moreover, Seidemann offers no support for that conclusion. Such conclusory allegations, without more, do not create a material issue of fact on whether UP complied with federal regulations on locomotive horn audibility. Plaintiffs have not presented any evidence that UP failed to comply with the Federal standard of care established governing horn audibility. Thus, defendant's Motion is GRANTED and plaintiffs' claim alleging Defendant did not comply with 49 C.F.R. 229.129 is dismissed as a matter of law. Next, plaintiffs argue that defendant failed to use an emergency horn sequence in accordance with the General Code of Operating Rules (G.C.O.R.) 5.8.2.91 The federal requirements for sounding a locomotive horn while at a private crossing are set forth in 49 C.F.R. 222.23(a) which provides in pertinent part: (a) (1) Notwithstanding any other provision of this part, a locomotive engineer may sound the locomotive horn to provide a warning to animals, vehicle operators, pedestrians, trespassers or crews on other trains in an emergency situation if, in the locomotive engineer's sole judgment, such action is appropriate in order to prevent imminent injury, death, or property damage. (2) Notwithstanding any other provision of this part, including provisions addressing the establishment of a quiet zone, limits on the length of time in which a horn may be sounded, or installation of wayside horns within quiet zones, this part does not preclude the sounding of locomotive horns in emergency situations, nor does it impose a legal duty to sound the locomotive horn in such situations. Thus, federal law places the discretion of how to sound the horn during an emergency situation with the engineer. Nevertheless, plaintiffs argue that their claim is not preempted because defendant failed to comply with its own plan, rule, or standard that it created on the use of the emergency horn sequence. Specifically, the plaintiffs allege that the defendant violated the G.C.O.R. Rule 5.8.292 when the engineer blew a constant horn for the last couple of seconds before impact. Defendant relies on several cases which address this very allegation. Courts have continually found that, in light of 49 C.F.R. 222.23, claims that engineers failed to comply with G.C.O.R. 5.8.2 are preempted by federal law. Here, just as in Marsh v. Norfolk Southern, Inc., plaintiffs do not cite to any federal regulation mandating the use of a succession of short sounds. "Thus, federal law does not impose a legal duty on the engineer to sound the horn." As such, this Court finds that plaintiffs' claim that defendant failed to use the appropriate emergency horn sequence is preempted as a matter of law. Lastly, plaintiffs claim that defendant was negligent in failing to instruct its employees of the deficiencies in train mounted audible warning systems. However, plaintiffs have failed to submit summary judgment evidence that any certifications, training, policies, procedures, and practices
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of UP employees violated any of the deferral standards set forth in 49 C.F.R. 240. Section 240 specifies standards for the "eligibility, training, testing, certification and monitoring of all locomotive engineers." The regulations include a detailed scheme by which a railroad company must obtain Federal Railroad Administration (FRA) approval of its engineer and conductor certification programs, including its criteria for continuing education, testing, training, and monitoring of performance. "To prevail on the claim that [federal] regulations have pre-emptive effect, petitioner must establish more than that they 'touch upon' or 'relate to' that subject matter, . . . pre-emption will lie only if the federal regulations substantially subsume the subject matter of the relevant state law." As such, other circuits have held that "federal training regulations do 'substantially subsume' the subject of employee training." Plaintiffs submit no evidence to suggest that defendant has not complied with federal operating and training rules. Plaintiffs only submit the railroad crew's failure to sound the proper emergency horn sequence or apply the emergency brakes as evidence of deficient crew training. As stated above, plaintiffs' allegations that the defendant failed to sound the proper emergency horn sequence are preempted as a matter of law. Further, as in Marsh, plaintiffs have failed to point to any specific provision of federal regulations that were breached by the defendant or show how UP's employee training policies are not in compliance. Therefore, plaintiffs have failed to submit summary judgment evidence to create a material issue of fact, and their claim against defendant for alleged inadequate training of railroad employees is preempted as a matter of law. Summary Judgment is proper in favor of defendant on all audible warning claims as stated in defendant's Motion.
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Patrick Jack et al. v. Asbestos Corporation Ltd. et al.
• Miscellaneous — Mesothelioma — Motion to Preserve Evidence • Plaintiff sued for mesothelioma, died during pendency of suit • Defendants made emergency request for autopsy to determine nature and extent of exposure, possible “co-morbidities” • HELD — Federal Rules of Evidence allow for compelled autopsy, motion GRANTED
Plaintiffs sued multiple defendants for exposure to asbestos and resulting mesothelioma. Among the defendants was Union Pacific, which was sued for “take home” exposure due to the employment of plaintiff’s father by the railroad. A not-uncommon occurrence, the death of plaintiff during the pendency of the suit, led to this motion by multiple defendants to preserve the body and submit it for autopsy by a neutral, court-appointed expert. The case is Patrick Jack & Leslie Jack v. Asbestos Corporation Ltd., 2017 U.S. Dist. LEXIS 181915, 2017 WL 4838397, filed in the U.S. District Court for the Western District of Washington. Plaintiffs’ counsel Benjamin H. Adams; Dean, Omar & Branham LLP, Los Angeles, CA and Kristin M. Houser, Lucas W.H. Garrett, William J. Rutzick and Thomas J. Breen; Schroeter Goldmark & Bender, Seattle, WA. Among the defense attorneys too numerous to mention were UP’s attorneys, Tim D. Wackerbarth and Jeffrey M. Odom; Lane Powell PC, Seattle, WA. Excerpts from the opinion by Judge James L. Robart follow: Plaintiffs Leslie Jack and her late-husband Patrick Jack brought suit against numerous defendants, including GPC, Kelsey-Hayes, MW, Asbestos Corp., Ingersoll Rand, and Velan. The complaint alleges that Mr. Jack was exposed to asbestos throughout his life and learned in July 2016 that he had mesothelioma. He and his wife brought suit against defendants that "manufactured and/or put asbestos and asbestos-containing products . . . into the stream of commerce and/or used asbestos containing material at work sites where [Mr. Jack] worked." Mr. Jack passed away on October 15, 2017. Mrs. Jack's attorney notified opposing counsel of this news on October 17, 2017. Counsel for GPC replied the same day, renewing a prior defense request for an autopsy. Mrs. Jack's attorney responded that "the asbestos companies who manufactured, sold, and distributed asbestos products without warnings that Mr. Jack used throughout his life do not have a legal right to interfere with the funeral and burial plans of Mr. Jack's grieving family." Her attorney also informed GPC that the family is scheduled to cremate Mr. Jack's remains, likely on Thursday, October 19, 2017. After conferencing over the telephone, the parties could not agree on the autopsy issue. On October 18, 2017, GPC filed an emergency motion to "compel [Mrs. Jack] to make the remains of [Mr. Jack] available for an autopsy and preservation of the lungs for later digestion studies," pursuant to Federal Rule of Civil Procedure 35. Other defendants — Kelsey-Hayes, MW, Asbestos Corp., Ingersoll Rand, and Velars joined GPC's motion. The court held a telephonic hearing the same day and issued a TRO preserving the status quo until the court could hold a hearing on the merits of the motion. On Thursday, October 19, 2017, the court held the hearing on the merits, granted a continuance of the previously-issued TRO, and ordered preservation of the body in whole until the parties submitted supplemental briefing..) As requested, GPC and Mrs. Jack have submitted supplemental briefing and various declarations in support of their respective
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arguments. The court now considers the merits of the emergency motion. Federal Rule of Civil Procedure 35(a)(1) provides that "[t]he court . . . may order a party whose mental or physical condition . . . is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner." Fed. R. Civ. P. 35(a)(1). Such an order "may be made only on motion for good cause and on notice to all parties and the person to be examined; and . . . must specify the time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it." Id. 35(a)(2). As a pretrial discovery rule, Rule 35(a) is interpreted liberally in favor of granting discovery. See Schlagenhauf v. Holder, 379 U.S. 104, 114-15, 85 S. Ct. 234, 13 L. Ed. 2d 152 (1964). However, courts are skeptical of vague requests to conduct Rule 35(a) medical examinations because "Rule 35(a) does not afford a carte blanche right of . . . examination." In re Certain Asbestos Cases, 112 F.R.D. 427, 434 (N.D. Tex. 1986) (Certain Asbestos 1). By its express terms, Rule 35 requires the movant to demonstrate that (1) the matter of a party's physical condition is "in controversy"; and (2) there is "good cause" for the examination. Schlagenhauf, 379 U.S. at 117. These two requirements "are not met by mere conclusory allegations of the pleadings — nor by mere relevance to the case — but require an affirmative showing by the movant that each condition as to which the examination is sought is really and genuinely in controversy and that good cause exists for ordering each particular examination." Id. at 118. The requirements are met "only when the movant produces sufficient information about the particular decedent." Certain Asbestos I, 112 F.R.D. at 435. "The ability of the movant to obtain the desired information by other means is also relevant." Id. Defendants are correct that Rule 35(a) applies to autopsies. In the context of an autopsy, courts require a movant to show that "(1) the decedent's physical condition is in controversy and (2) that an autopsy is the most medically reasonable method, considering the reasonable medical alternatives, for determining the decedent's physical condition at death." Belkow v. Celotex Corp., No. 89 C 3049, 1989 U.S. Dist. LEXIS 5917, 1989 WL 56976, at *2 (N.D. Ill. May 19, 1989). The movant must demonstrate each requirement through affidavit testimony. In re Certain Asbestos Cases, 113 F.R.D. 612, 614 (N.D. Tex. 1986) (Certain Asbestos II). In light of the applicable law and the parties' submissions, the court finds that defendants have successfully demonstrated both of the necessary factors. The court addresses each factor in turn.
The court does not dwell on (the) first factor because the analysis of this factor as applied to this case is straightforward. The uncertainty of Mr. Jack's physical condition at the time of death and his cause of death forms the crux of the suit against defendants. Mrs. Jack does not argue otherwise in her supplemental briefing, and thus the court finds that defendants successfully demonstrate the first requirement of Rule 35(a) that Mr. Jack's physical condition is in controversy. Good cause requires a showing of specific facts that demonstrate the need for the information sought and the lack of means for obtaining it elsewhere. See Schlagenhauf, 379 U.S. at 118. In other words, the movant must show that an autopsy is "the most medically reasonable method" in comparison to "the reasonable medical alternatives." Belkow, 1989 U.S. Dist. LEXIS 5917, 1989 WL 56976, at *2; Brewer v. Am. Med. Alert Corp., No. 1:08-0069, 2009 U.S. Dist. LEXIS 84401, 2009 WL 2996487, at *4 (M.D. Tenn. Sept. 15, 2009) ("The court must be convinced that an
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autopsy will produce reliable data that is clearly superior to what is already available." (internal quotation marks omitted)). Additionally, the movant must make a "strong showing" that an autopsy will "establish the facts sought." Brewer, 2009 U.S. Dist. LEXIS 84401, 2009 WL 2996487, at *4. In its determination, the court "will consider whether the decedent's survivors will suffer undue spiritual, religious, personal, or emotional hardship if the decedent is required to undergo an autopsy." Certain Asbestos II, 113 F.R.D. at 614. The parties disagree about whether the available medical alternatives — Mr. Jack's clinical history, occupational history, and existing tissue samples taken from various biopsies — are sufficient. The court finds that defendants have successfully shown that an autopsy will produce information pertinent to Mr. Jack's condition that is not obtainable through the available medical alternatives. First, an autopsy may reveal potential co-morbidities. For example, Mr. Jack suffered a heart attack in April of 2017. Defendants provide expert medical testimony from Dr. Stanley Geyer that "[e]ven where the cause of death is not in controversy, a complete autopsy may reveal potential co-morbidities — including but not limited to other malignancies, undiagnosed chronic health conditions or congenital health problems." Dr. Geyer elaborates that "if an individual had a history of cardiac disease or cardiac episodes, examination of the heart and pericardium could provide further insight into whether any cardiac problem contributed to the individual's death." (Id.) Mr. Jack's medical records certainly lists the various ailments Mr. Jack suffered (see id. at 8), but that list does not and cannot identify whether those conditions are co-morbidities. Mrs. Jack, in response, focuses on Dr. Geyer's testimony in previous, unrelated cases. Mrs. Jack points to the fact that Dr. Geyer has accepted the cause of death stated on a decedent's death certificate in a previous case. However, she offers no information on whether there were similar co-morbidity questions in that case as there are here. Thus, the court does not know whether questioning the cause of death was necessary in that case and thus cannot reach the conclusion Mrs. Jack puts forth — that Dr. Geyer, in a similar case where co-morbidity questions arose, was content to rely on a death certificate rather than an autopsy. Second, an autopsy can obtain lung tissue to perform a tissue digestion and fiber burden analysis, which would ascertain the amount and types of asbestos fibers present in Mr. Jack's lungs. Such an analysis of the lungs "provides the most definitive, complete, comprehensive information available regarding the . . . asbestos fiber burden at the time of [Mr. Jack's] death." For example, the tissue digestion and fiber burden analyses would reveal both the number and kind of asbestos fibers that have passed through Mr. Jack's lungs. These analyses could also provide evidence of exposure to naturally-occurring asbestiform minerals, which may have caused or contributed to the disease. Such information on the quantity and type of asbestos exposure is critical, especially where, as here, there are a large number of defendants with allegedly different types of asbestos in their products. Defendants additionally provide affidavit evidence as to why the existing tissue samples, obtained from biopsies, are not adequate substitutes: (1) biopsy tissue is "not representative of the lung" as a whole; (2) it does not generally "reflect any disease process present in other areas of the lung"; and (3) because it is tissue taken from the tumor, it "does not include tissue uninvolved in the tumor process." Additionally, specific to this case, the biopsy tissue represents the pleura — membrane covering the outer surfaces of the lungs — but does not represent the parenchyma — the aerated tissue of the lung, where asbestos fibers are more likely to settle. Without sufficient
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parenchyma tissue, it is unlikely that the existing biopsy tissue samples are able to provide the information that a more comprehensive analysis on the lung tissue can. Mrs. Jack does not dispute what tissue digestion and fiber burden analyses may reveal, nor does she contend that such analyses can be done on the existing biopsy tissue samples. Instead, she again takes issue with Dr. Geyer's testimony in past cases. For example, Mrs. Jack notes that in past cases, Dr. Geyer has stated that he relies on clinical history or occupational history. Mrs. Jack further notes that in the past, Dr. Geyer has been "perfectly happy to rely on the same kind of pathology report defendants have in this case." But every patient presents a distinct case. Courts have frowned upon the use of general evidence that is unconnected to the particular decedent and the specific circumstances before them. See Belkow, 1989 U.S. Dist. LEXIS 5917, 1989 WL 56976, at *2-3. Therefore, although Dr. Geyer may not have needed more than a pathology report in previous instances, he attests in this case that he has reviewed Mr. Jack's available pathology studies and concludes that "an autopsy is the most medically reasonable method for determining [Mr. Jack's] physical condition at the time of death in this case." The court does not take lightly Mrs. Jack's significant moral objections to having an autopsy done on her husband. Mrs. Jack attests that an autopsy is not something Mr. Jack would have wanted and that she wishes to "preserve [Mr. Jack's] last vestige of dignity" by burying "his ashes with his mother and father." The court takes these objections into consideration but concludes that they do not outweigh the defendants' showing that an autopsy is the most medically reasonable option, as it can reveal information that is both pertinent to the case and unobtainable through the currently available medical alternatives. Because defendants have successfully demonstrated that Mr. Jack's physical condition was in controversy and shown good cause to perform an autopsy at this time, the court grants defendants' motion to preserve evidence….
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Jeffrey Walters v. CSX Transportation, Inc.
• FELA — Motor Vehicle Accident — Summary Judgment • Conductor injured when his PTI taxi runs off the road • CSX says plaintiff failed to produce evidence of negligent driving by PTI driver • Plaintiff says driving off the road is negligence enough • HELD — The result is not proof of the cause, no negligence is shown, so summary judgment is GRANTED
Plaintiff was injured while on the way to his train when the PTI taxi failed to negotiate a turn in the road and ran over an embankment. Was the accident sufficient to demonstrate negligent operation of the vehicle? The court says “no” in Jeffrey Walters v. CSX Transportation, Inc., 2017 U.S. Dist. LEXIS 190249, a decision from the U.S. District Court for the Eastern District of Kentucky, Southern Division. Plaintiff’s attorneys were Brian G. Reddy; The Reddy Law Firm, Maumee, OH, Charles W. Armbruster III and Michael T. Blotevogel; Ambruster, Dripps, Winterscheidt & Blotevogel, Maryville, IN, and Brian G. Powell; Colley Shroyer & Abraham, Columbus, OH. Counsel for CSXT were James W. Turner, Robert E. Ryan and Jessica L. Wiley; Steptoe & Johnson, Huntingdon, WV. Carl Agner, Manager Field Investigations II, Florence, KY, provided the investigation and assistance at trial. Judge Danny Reeves wrote the opinion, stating, in part: This matter is pending for consideration of cross-motions for summary judgment filed by Plaintiff Jeffrey Walters and defendant CSX Transportation, Inc. (CSX). CSX has also moved to exclude expert testimony. CSX argues that it is entitled to summary judgment because Walters has failed to produce evidence that demonstrates that CSX was negligent and because Walters has failed to produce evidence that he suffered any damage caused, in whole or in part, by the negligence of CSX. CSX contends in its motion to exclude that the Court cannot rely on plaintiff's medical expert's testimony because Walters did not disclose to his expert any opinion that considers his decision to pursue surgery. Conversely, Walters contends that he is entitled to partial summary judgment because CSX breached its duty under the Federal Employers' Liability Act (FELA). For the reasons outlined below, the court will deny Walters motion for partial summary judgment and CSX's motion to exclude expert testimony, and grant CSX's motion for summary judgment. Walters has been employed by CSX as a conductor since 2005. He was called to report to work in the late evening on August 9, 2013. He reported to the Queensgate Yard, located in Cincinnati, Ohio, to receive his assignment. Once at the Queensgate Yard, Walters and crewmate Charlie Jones received their assignment to re-crew a train, which was located near a signal called Catawba, in Falmouth, Kentucky. Walters and Jones were transported to the train location in a vehicle owned and operated by Professional Transportation Inc. (PTI), hired by CSX to taxi its workers to various locations. Approaching the rural drop-off location, the vehicle was required to traverse a single-lane wooden bridge and then make a sharp left turn onto a road that follows the train tracks. This left turn led to a road which blended in with the front yard of a nearby house and with the gravel along the side of the road. The driver of the vehicle was unable to see the turn in time. The vehicle ran over an embankment when the driver finally executed the turn. As a result of this
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accident, the plaintiff claims to have suffered injuries and brought this suit against CSX seeking damages. Congress enacted FELA to provide a compensation scheme in response to concern over the number and severity of railroad employees' injuries. Norfolk Southern Ry. Co. v. Sorrell, 549 U.S. 158, 165 (2007). "Unlike a typical workers' compensation scheme, which provides relief without regard to fault, Section 1 of FELA provides a statutory cause of action sounding in negligence." Id. FELA provides, in part: Every common carrier by railroad . . . shall be liable in damages to any person suffering injury while he is employed by such carrier . . . resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier . . . ." While railroads have a duty under FELA to provide its employees with a reasonable safe workplace, FELA “does not make the employer the insurer of the safety of his employees while they are on duty. The basis of his liability is his negligence, not the fact that injures occur.” Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 543 (1994) (quoting Ellis v. Union Pacific R. Co., 329 U.S. 649, 653 (1947)). "A railroad breaches its duty to its employees when it fails to use ordinary care under the circumstances or fails to do what a reasonably prudent person would have done under the circumstances to make the working environment safe." Van Gorder, 509 F.3d at 269. Walters' FELA claim is predicated upon the alleged negligence of PTI, purported agents of CSX. Specifically, Walters contends that "failing to maintain proper control of a vehicle, failing to obey the appropriate traffic laws and failing to remain on the road while driving is negligent." To survive summary judgment, there must be specific facts that show there is genuine issue for trial; Walters cannot rely on his bare allegations that negligence occurred. See Chao, 285 F.3d at 424. While it is a fact that the vehicle failed to remain on the roadway and an accident occurred, Walters does not rely on any substantive probative evidence to show that the actions of the driver were negligent. Instead, he relies on the outcome the driver's actions, the vehicle leaving the roadway, to establish negligence. The deposition testimony of both Walters and Jones paint a clear picture of the driver operating the vehicle in a reasonable, appropriate, and careful manner. For instance, Walters testified that "nothing caught my attention about the driver . . . . There wasn't nothing [sic] that would alarm me to think something was getting ready to happen." In response to being asked if the driver was distracted in any way before the accident, Walters stated he "never noticed anything the driver did that would, you know, alert me to any problems at all existing or going on." He further stated that the driver was not diving in an excessive speed, and if he would have believed the driver was being unsafe, he would have told him to stop the vehicle. Jones was asked during his deposition if he witnessed any behavior by the driver that was particularly careless, whether it was his driving, distractions, or anything else. In response, Jones stated "[n]o. He did fine up to that point." He further testified that the driver was moving at a slow speed while looking for the turnoff that blended in with the front yard and gravel adjacent to the paved road.
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Walters argues, both in his response in opposition to CSX's motion for summary judgment and his reply to CSX's response in opposition to his motion for summary judgment, that Jones' deposition testimony demonstrates that Jones did not witness the driver acting carelessly up to the point of the collision, but when he finally saw the turn the driver "was too far gone to make a turn onto it." However, it is this very argument that shows Walters has not come forward with any evidence of negligence. He is relying on the outcome of the driver's actions (i.e., the vehicle ending up over the embankment) to show negligence, rather than the driver's actions in operating the vehicle, which according to Jones and Walters were not inappropriate or out of the ordinary. No evidence has been presented that would suggest the outcome was a product of driver negligence. Walters also argues that the driver was negligent by failing to obey appropriate traffic laws. He contends that the driver violated K.R.S. § 189.290, which states "the operator of any vehicle upon a highway shall operate the vehicle in a careful manner, with regard for the safety and convenience of pedestrians and other vehicles upon the highway." Walters then goes on to argue that "[t]he PTI driver failed to operate the transport vehicle in a careful manner when he failed to steer the vehicle so that the vehicle would not leave the roadway." But once again, he relies on the outcome of the driver's actions, instead of the actions themselves. The evidence offered indicates that the driver was driving slowly and not behaving in a distracted or careless manner when the accident occurred. No evidence has been put forwarded that shows the driver was acting carelessly. Finally, Walters contends that the PTI accident/incident report form (presumably prepared by an employee of PTI) is evidence of negligence. He argues that, because the form lists the accident type as "loss of control," this is evidence and even admission of negligence. However, Walters provides no evidence regarding how the form is prepared, who prepared it, under what situations it was prepared, or what available options are in the accident type category. Simply put, he has supplied no authority or evidence supporting his argument in which he now attempts to conflate the entry of "loss of control" on a form as evidence, let alone an admission, of negligence. The evidence produced during discovery and relied upon by Walters does not contain sufficient evidence to preserve a genuine issue of fact material to an element of his claim, specifically, that CSX was negligent. In the absence of such evidence, summary judgment for CSX is appropriate. And because Walters has failed to present a prima facie case under FELA, analysis of the defendant's motion to exclude is unnecessary.
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Starr Swearingen Waneck et al. v. CSX Transportation, Inc.
• Grade Crossing Collision — Motion to Disqualify Plaintiffs’ Counsel • Plaintiffs injured when their vehicle is struck by a train • Counsel represents plaintiffs against CSXT and also represents City of Biloxi against claims brought by CSXT in separate action • CSXT argues counsel has conflict of interest because his clients could also bring a claim against a party (City) that he represents • HELD — Conflict of interest exists and plaintiffs cannot consent to waiver of the conflict, so Motion to Disqualify is GRANTED
We go somewhat off the beaten path to consider a situation where plaintiffs’ counsel is being too cute for his, and his clients’, own good, and is brought down by smart lawyering from the defense team. Well-known attorney Robert Pottroff is thrown off the case by the court in Starr Swearingen Waneck and Jimmie Lee Waneck v. CSX Transportation, Inc. et al., 2017 U.S. Dist. LEXIS 184168, 2017 WL 5157394, in the U.S. District Court for the Southern District of Mississippi, Southern Division. Plaintiffs were represented by William M. Cunningham, Jr. and Troy T. Schwant; Burns, Cunningham & Mackey PC, Mobile, AL, and Robert L. Pottroff and Nathan L. Karlin; Pottroff Law Office, PA, Manhattan, KS. The successful CSXT team consisted of Patrick R. Buchanan; Brown Buchanan, PA, Biloxi, MS and S. Camille Reifers; Boyle Brasher LLC, Memphis, TN. Cecilia Newsom, Manager Field Investigations II, Daphne, AL, provided the investigation and assistance at trial. The court’s opinion is by District Judge Halil S. Ozerden, who wrote, in part, as follows: This matter arises out of a collision that occurred on March 7, 2017, when a charter bus, in which Plaintiffs Starr Swearingen Waneck and Jimmy Lee Waneck (Plaintiffs) were passengers, became wedged on a railroad crossing in Biloxi, Mississippi, and was struck by a freight train. Plaintiffs filed their Complaint on March 10, 2017, in the Circuit Court of Harrison County, Mississippi, Second Judicial District, and on March 20, 2017, filed an Amended Complaint. The Amended Complaint asserts claims against all defendants for, among other things, negligence, gross negligence, negligence per se, willful and wanton conduct, recklessness, intentional conduct, and a reckless and intentional disregard for the safety of the traveling public, breach of defendants' duties to "operate a train at a speed for the then existing conditions and be prepared to slow or stop for any hazardous conditions" and to inspect, repair, and report unsafe crossings, and intentional disregard for the safety of the traveling public. Plaintiffs seek actual and punitive damages and costs from defendants, jointly and severally. Defendants CSX Corporation (CSXC) and CSX Transportation, Inc. (CSXT), removed the case to this Court on April 11, 2017. On June 2, 2017, defendant CSXT filed a Motion to Raise Nonconsentable Conflict of Interest Under Rule 1.7(b) of the Mississippi Rules of Professional Conduct and Disqualify Pro Hac Vice Admitted Attorney Robert L. Pottroff. Plaintiffs filed a Response in Opposition, CSXT filed a Rebuttal, and plaintiffs filed a Sur-reply. On August 25, 2017, the Magistrate Judge entered an Order granting CSXT's Motion and disqualifying attorneys Robert L. Pottroff and Nathan L. Karlin of the law firm of Pottroff Law
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Office, PA (Pottroff), from representing plaintiffs in this case. The Magistrate Judge found the existence of a conflict of interest for Pottroff to represent plaintiffs in the current matter for claims arising out of the March 7, 2017, collision while simultaneously representing the City of Biloxi, Mississippi, for claims brought against the City by CSXT under the Mississippi Tort Claims Act, Mississippi Code Annotated §11-46-1, et. seq., arising out of the same collision. The Magistrate Judge concluded that this conflict of interest was nonconsentable under both Mississippi Rule of Professional Conduct 1.7 (Mississippi Rule) and the American Bar Association's (ABA) Model Rule of Professional Conduct 1.7 (Model Rule). Specifically, the Magistrate Judge found as follows: The present case strikes the Court as exactly the type of circumstances under which a disinterested lawyer would conclude that a client should not agree to the (sic) his or her lawyer's representation of an additional client with adverse interests. The simultaneous representation of the Wanecks and the City of Biloxi presents serious and unavoidable conflicts of interest for Pottroff. The Wanecks seek to recover monetary damages for the injuries they suffered in the accident. It would seemingly not matter to them who is ultimately responsible for the accident, or in what proportion; they simply seek to recover as much as they are owed. However, to the extent that the City of Biloxi has an interest in the instant litigation, it is to minimize its liability for the accident. Necessarily, Pottroff cannot pursue any claim the Wanecks might have against Biloxi, no matter what the factual investigation reveals. The agreement between Pottroff and Biloxi even provides, "The Pottroff Law Office and any associated clients have agreed not to pursue suit or seek other legal recourse against the City of Biloxi related to this matter." Therefore, he cannot provide "competent and diligent representation" to the Wanecks. Model R. Prof'l Conduct 1.7(b)(1).
Additionally, subpart (b)(3) of Model Rule 1.7 similarly counsels against the consentability of the present conflict of interest. Although plaintiffs have not asserted a claim against the City of Biloxi, they cannot do so while their attorney also represents Biloxi. Nonetheless, their interests, as already set forth, are adverse. Accordingly, the Court finds that the concurrent conflict of interest in Pottroff's representation of both the Wanecks and the City of Biloxi is not consentable under either Mississippi Rule 1.7 or Model Rule 1.7. The Magistrate Judge further found that the disqualification of Pottroff would not be detrimental to plaintiffs' case because they will continue to be represented by competent counsel in William M. Cunningham, Jr. and Troy T. Schwant, both of the law firm Burns, Cunningham & Mackey, counsel of record appearing on the original Complaint. On September 9, 2017, plaintiffs filed their Objections to, and Appeal of, Magistrate Judge's Order. Plaintiffs do not contest the Magistrate Judge's determination that a conflict of interest exists, only his conclusion that this conflict of interest is nonconsentable. Plaintiffs proffer that "no lawyer for any victim" has asserted a claim against the City of Biloxi, that plaintiffs "do not wish to now or ever make a claim" against the City of Biloxi and that "any 'potential conflict' will disappear on March 7, 2018," based upon the limitations period for filing claims against the City of Biloxi under Mississippi Code Annotated §11-46-11(3), id. Plaintiffs maintain that Pottroff should not be
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disqualified since they were fully informed of the conflict and have given "knowing, informed and written consent to Attorney Pottroff's representation of the City of Biloxi." CSXT's Response contends that the Magistrate Judge reached the correct decision and that plaintiffs fail to identify "any error of law or fact in the Magistrate Judge's reasoned and legally sound written order." According to CSXT, plaintiffs' admission that a conflict exits since the City of Biloxi's liability “may later be supported by facts,” only confirms that a nonconsentable conflict of interest exists for Pottroff to continue to represent plaintiffs. Plaintiffs' Reply maintains that although there may exist a conflict in Pottroff's concurrent representation of plaintiffs and Biloxi, plaintiffs may and do consent to such concurrent representation. "Pottroff's representation of the City does not foreclose the Wanecks from pursuing an action against the City of Biloxi, should they wish to in the future." Alternatively, plaintiffs seek an order "wherein the Magistrate Judge will review the disqualification of Attorney Pottroff after March 7, 2018, to determine if a conflict of interest still exists." In determining that Pottroff's conflict in simultaneously representing plaintiffs and the City of Biloxi is nonconsentable, the Magistrate Judge reasoned that [b]oth the Mississippi Rules and Model Rules agree that, notwithstanding the existence of a concurrent conflict of interest, a lawyer may continue to represent a client under certain circumstances. Mississippi Rule 1.7 provides that a lawyer may only represent a concurrently-conflicted client if "the lawyer reasonably believes" that "the representation will not be adversely affected" and "the client gives knowing and informed consent after consultation," which "shall include explanation of the implications of the representation and the advantages and risks involved." Miss. R. Prof'l Conduct 1.7(b). Model Rule 1.7 provides that a lawyer may only represent a concurrently-conflicted client if (1) "the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client," (2) the representation is not illegal, (3) the representation "does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation," and (4) "each affected client gives informed consent, confirmed in writing." [See] Model R. Prof'l Conduct 1.7(b)(1)-(4). The concern expressed through either framework is that "[a] lawyer who attempt[s] to present both sides of a dispute might fail to provide the forceful advocacy necessary for informed decision making. Both the fact and appearance of justice would be at risk, and reported cases recognize as much." Degorah L. Rhode and Geoffrey C. Hazard Jr., Professional Responsibility and Regulation 127 (2nd ed. 2007). . . . With all of this in mind, "when a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer involved cannot properly ask for [waiver] or provide representation on the basis of the client's consent." Miss. R. Prof'l Conduct 1.7 cmt. Plaintiffs concede that a conflict may exist for Pottroff to represent them while concurrently representing the City of Biloxi, but they contend that this conflict is consentable. Plaintiffs' position is undermined by the language contained in their Reply, which states that:
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[a]ssuming, [arguendo], there is a conflict of interest, any conflict is consentable and plaintiffs provided informed consent on multiple occasions. ABA Model Rule 1.7(b) on informed consent provides as follows: If a lawyer reasonably believes that no client will be adversely affected, and if the representation is not prohibited by law and does not involve one client asserting a claim against another, the lawyer may represent conflicting interests if each affected client gives informed consent, confirmed in writing. (emphases added) Here, plaintiffs provided sufficient evidence that the Wanecks gave informed consent on multiple occasions for Attorney Pottroff to represent them in this suit and the City of Biloxi in a potentially separate suit [by] CSXT. CSXT has presented no evidence that any "disinterested lawyers" might opine that the interest of a non-party and the plaintiffs is nonconsentable. CSXT's manufactured conflict of interest regarding Attorney Pottroff's representation of the City does not foreclose the Wanecks from pursuing an action against the City of Biloxi, should they wish to in the future. (emphases added) Plaintiffs' admission that they can or may pursue a cause of action against the City of Biloxi undercuts, in the Court's view, any right to consent to Pottroff's conflict of interest which arose when he agreed to represent the City of Biloxi. The crux of Model Rule 1.7 is to prevent exactly what has happened in this case. Even if plaintiffs could consent, "a district court is 'allowed substantial latitude in refusing waivers of conflicts of interest' for an actual conflict of interest or a serious potential conflict that may arise during trial." United States v. Jackson, 805 F.3d 200, 202 (5th Cir. 2015) (quoting Wheat v. United States, 486 U.S. 153, 163 (1988)); see also In re Am. Airlines, Inc., 972 F.2d 605, 611(5th Cir. 1992) (confirming that courts must be sensitive to preventing conflicts of interest, and a district court must take "measures against unethical conduct occurring in connection with any proceeding before it") (citations and quotations omitted)). After conducting a thorough review of the parties' arguments and the record as a whole, along with relevant legal authority and the Magistrate Judge's succinct, well-reasoned opinion, the Court finds that the Magistrate Judge's Order is neither clearly erroneous nor contrary to law. Under the facts of the present case, Pottroff's decision to undertake "simultaneous representation of plaintiffs and the City of Biloxi presents a nonconsentable conflict of interest warranting disqualification" of Robert L. Pottroff and Nathan L. Karlin of the law firm of Pottroff Law Office, PA. It is, therefore, ordered and adjudged that the Magistrate Judge's August 25, 2017, Order [113] Granting defendant CSX Transportation, Inc.'s Motion [50] to Raise Nonconsentable Conflict of Interest Under Rule 1.7(b) of the Mississippi Rules of Professional Conduct and Disqualify Pro Hac Vice Admitted Attorney Robert L. Pottroff is adopted as the finding of this Court, as supplemented herein. It is, further, ordered and adjudged that Robert L. Pottroff and Nathan L. Karlin of the law firm of Pottroff Law Office, PA, are disqualified from representing plaintiffs in this case.
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Grand Trunk Western Railroad Co. v. U.S. Dept. of Labor
• FRSA — Interference with medical treatment — Petition for review • Employee dismissed for absenteeism due to medical condition not related to work • DOL says prohibition on discipline or retaliation applies to all medical conditions, whether or not work-related • Railroad says §20109 provisions on medical treatment apply only to on-duty injuries • HELD — “Interference with medical treatment” provisions are only for on-duty injuries, so petition for review is GRANTED and sanctions against GTW must be dismissed
For our final case note of this issue of The Bulletin, we venture into the realm of 49 USC §20109 and the protections granted therein to railroad employees. Railroad claim departments are increasingly being called-upon to deal with these issues, separately or in conjunction with FELA claims. In this case, the U.S. Court of Appeals for the Sixth Circuit adopts the view that the anti- retaliation provisions relating to requesting medical treatment or following treatment plans applies only to treatment for on-duty injuries. The case is Grand Trunk Western Railroad Co. v. U.S. Department of Labor, 2017 U.S. App. LEXIS 23279, 2017 FED App. 0262P (6 Cir.). Representing the railroad were Holly M. Robbins and Joseph D. Weiner; Littler Mendelson PC, Minneapolis, MN. Appearing for the Department of Labor was Sarah Kay Marcus, U.S. Dept. of Labor, Washington, DC, and representing the subject railroad employee were Robert B. Thompson and Robert E. Harrington III; Harrington, Thompson, Acker & Harrington, Ltd., Chicago, IL. An amicus brief supporting the position of DOL and the employee was filed by Harry Zanville, La Mesa, CA and Jacqueline M. Holmes; Jones Day, Washington, DC. The colorfully-written opinion for a unanimous panel of the court was written by Circuit Judge McKeague, and states, in part: Despite having had its position derailed by every federal court to date, the Department of Labor's Administrative Review Board steams ahead. The Board interprets a retaliation clause in the Federal Railroad Safety Act (FRSA) — located in a recent amendment regarding "Prompt medical attention," 49 U.S.C. § 20109(c) — to provide sick leave to all railroad employees for off-duty injuries and illnesses. In this case, the Board's broad interpretation meant Webster Williams, Jr. — a Grand Trunk employee with a non-work-related history of anxiety and depression — was granted relief from his termination for six collectively-bargained-for-as-unexcused absences because he was "following . . . a treatment plan of [his] treating physician." 49 U.S.C. § 20109(c)(2). Traditional tools of statutory interpretation lead us to a different conclusion: subsection (c)(2), just like its preceding subsection (c)(1), applies only to on-duty injuries. Thus, we grant the petition and remand with instructions that the proceeding below be dismissed. In 2006, Williams began seeing Dr. John Bernick for a variety of conditions, including hypertension, insomnia, anxiety, and depression. As a part of his treatment plan, Dr. Bernick prescribed Xanax for Williams to take as a "stop gap" measure when Williams felt he needed to take the medication for his anxiety and depression. But he did so with two additional instructions:
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first, he referred Williams to a psychiatrist for further treatment; second, he advised Williams that in addition to taking Xanax, he "shouldn't work" during an anxiety episode if he would not feel safe. In December 2011, Williams missed eight days of work because of his anxiety and depression. Although Williams's absences comported with at least part of Dr. Bernick's treatment plan for his medical conditions, Grand Trunk deemed six of these missed work days to be "unexcused absences" and terminated Williams in January 2012 for excessive absenteeism. On March 1, 2012, Williams filed a complaint with the Occupational Safety and Health Administration (OSHA) for wrongful retaliation and termination. On February 6, 2013, OSHA dismissed the complaint because Williams's absences for a "non-work-related illness" did not constitute qualifying "protected activity." Williams appealed OSHA's dismissal to an administrative law judge (ALJ) on February 25, 2013. After an evidentiary hearing and a review of the parties' briefs, on August 11, 2014, the ALJ held that Williams had engaged in protected activity because he was following the treatment plan of his physician and the protected activity was a factor in Grand Trunk's decision to terminate Williams's employment. Thus, the ALJ awarded damages and attorney's fees to Williams. The ALJ based his finding that Williams's treatment plan was protected — even though it was for an off-duty illness — on the Administrative Review Board's holding in Bala v. Port Authority Trans-Hudson Corp., No. 12-048, 2013 DOL Ad. Rev. Bd. LEXIS 88, 2013 WL 5872050 (Admin. Rev. Bd. Sept. 27, 2013). Grand Trunk appealed the ALJ's decision to the Board on August 21, 2014. The Board affirmed the ALJ's decision in Williams v. Grand Trunk W. R.R. Co., No. 2016 WL 7742872, 2016 DOL Ad. Rev. Bd. LEXIS 62 (Admin. Rev. Bd. Dec. 8, 2016), and declined to apply the Third Circuit's decision in Port Authority Trans-Hudson Corp. v. Sec'y, U.S. Dep't of Labor, 776 F.3d 157, 161-62 (3d Cir. 2015) (PATH), which held that § 20109(c) only applies to treatment plans for on-duty injuries. This petition for review followed. Everyone agrees that the FRSA was amended in 2008 to provide railroad workers with additional protections for on-duty injuries. But does a retaliation provision in the FRSA — nested in a section providing for "Prompt medical attention," 49 U.S.C. § 20109(c) — encompass a physician's treatment plan for off-duty injuries? The Board argues it does; Grand Trunk argues it does not. "We begin, as in any case of statutory interpretation, with the language of the statute." CSX Transp., Inc. v. Ala. Dep't of Revenue, 562 U.S. 277, 283, 131 S. Ct. 1101, 179 L. Ed. 2d 37 (2011) (citing Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 251, 130 S. Ct. 2149, 176 L. Ed. 2d 998 (2010)). The relevant statutory section provides: (c) Prompt medical attention. (1) Prohibition: A railroad carrier or person covered under this section may not deny, delay, or interfere with the medical or first aid treatment of an employee who is injured during the course of employment. If transportation to a hospital is requested by an employee who is injured during the course of employment, the railroad shall promptly arrange to have the injured employee transported to the nearest hospital where the employee can receive safe and appropriate medical care. (2) Discipline: A railroad carrier or person covered under this section may not discipline,
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or threaten discipline to, an employee for requesting medical or first aid treatment, or for following orders or a treatment plan of a treating physician, except that a railroad carrier's refusal to permit an employee to return to work following medical treatment shall not be considered a violation of this section if the refusal is pursuant to Federal Railroad Administration medical standards for fitness of duty or, if there are no pertinent Federal Railroad Administration standards, a carrier's medical standards for fitness for duty. For purposes of this paragraph, the term "discipline" means to bring charges against a person in a disciplinary proceeding, suspend, terminate, place on probation, or make note of reprimand on an employee's record. 49 U.S.C. § 20109(c) (emphasis added). Of course, "[i]f the statutory language is plain, we must enforce it according to its terms." King v. Burwell, 135 S. Ct. 2480, 2489, 192 L. Ed. 2d 483 (2015) (citing Hardt, 560 U.S. at 251); see also Conn. Nat'l Bank v. Germain, 503 U.S. 249, 254, 112 S. Ct. 1146, 117 L. Ed. 2d 391 (1992) ("When the words of a statute are unambiguous, then, this first canon is also the last: 'judicial inquiry is complete.'" (quoting Rubin v. United States, 449 U.S. 424, 430, 101 S. Ct. 698, 66 L. Ed. 2d 633 (1981))). "But oftentimes the 'meaning — or ambiguity — of certain words or phrases may only become evident when placed in context.'" King, 135 S. Ct. at 2489 (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132, 120 S. Ct. 1291, 146 L. Ed. 2d 121 (2000)). "[W]hen placed in context," id., the plain meaning of subsection (c)(2), which prohibits "an employee for requesting medical or first aid treatment, or for following orders or a treatment plan of a treating physician," proves elusive. Thus, we must rely upon "traditional tools of statutory interpretation." Sierra Club v. EPA, 793 F.3d 656, 665 (6th Cir. 2015). The Board primarily cites to the so-called Russello structural canon; Grand Trunk relies upon other textual context and structure, the absurdity canon, and the legislative history. These tools provide a framework for our analysis. The Board's argument depends heavily on one textual observation: the language under subsection (c)(1) includes a limitation — "A railroad carrier or person covered under this section may not deny, delay, or interfere with the medical or first aid treatment of an employee who is injured during the course of employment" — while subsection (c)(2) contains no such limitation. The Board cites to Russello v. United States, 464 U.S. 16, 104 S. Ct. 296, 78 L. Ed. 2d 17 (1983) and its progeny, which explained that "[w]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." Id. at 23; see, e.g., Hardt, 560 U.S. at 252; Allison Engine Co. v. U.S. ex rel. Sanders, 553 U.S. 662, 671, 128 S. Ct. 2123, 170 L. Ed. 2d 1030 (2008); see also United States v. Detroit Med. Ctr., 833 F.3d 671, 678 (6th Cir. 2016); Moses v. Providence Hosp. & Med. Ctrs., Inc., 561 F.3d 573, 580 (6th Cir. 2008). While the Board's reliance on the Russello structural canon has some traction, its interpretation ultimately goes off the rails, effectively stranding the caboose from its engine. Russello does not provide a dispositive canon. Even at its strongest, Russello provides a single canon, a subset of a single tool of statutory interpretation, which may be displaced by other tools. See Henry Ford Health Sys. v. Dep't of Health and Human Servs., 654 F.3d 660, 666 (6th Cir. 2011) (Russello "creates a potential inference, not a necessary one."). Employing those tools, the Third Circuit unanimously rejected the Board's identical Russello
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argument: "The Russello presumption only applies when two provisions are sufficiently distinct that they do not — either explicitly or implicitly — incorporate language from the other provision." PATH, 776 F.3d at 164 (citing Clay v. United States, 537 U.S. 522, 530, 123 S. Ct. 1072, 155 L. Ed. 2d 88 (2003)). "Since the critical question here is whether subsection (c)(1) operates to cabin the scope of subsection (c)(2), Russello can only be meaningfully invoked after we resolve that inquiry. Consequently, it is of little help here." Id. at 164. Every other federal court since the PATH decision has followed the Third Circuit's lead. See Stokes v. Se. Penn. Transp. Auth., 657 F. App'x 79, 82 (3d Cir. 2016); Murdock v. CSX Transp., Inc., No. 3:15-cv-1242, 2017 U.S. Dist. LEXIS 46835, 2017 WL 1165995, at *3 (S.D. Ohio Mar. 29, 2017); Miller v. BNSF Ry. Co., No. 14-2596, 2016 U.S. Dist. LEXIS 64869, 2016 WL 2866152, at *15 (D. Kan. May 17, 2016); Goad v. BNSF Ry. Co., No. 15-650, 2016 U.S. Dist. LEXIS 178444, 2016 WL 7131597, at *3 (W.D. Mo. Mar. 2, 2016). The relevant section in this case, 49 U.S.C. § 20109(c), is structurally dissimilar to the relevant section in Russello, 18 U.S.C. § 1963(a). In Russello, the narrower language in subsection (a)(2) followed subsection (a)(1); here, by contrast, the narrower language in subsection (c)(1) defines the substantive protection against interference, which is then followed by a supplemental protection against retaliation in subsection (c)(2). Put differently, in Russello, subsection (a)(2) does not flow from subsection (a)(1), but rather flows from a unifying section; here, by contrast, subsection (c)(2) flows from subsection (c)(1) — subsections (c)(1) and (c)(2) prohibit not only interference with "medical or first aid treatment of an employee who is injured during the course of employment," but also discipline to the "employee for requesting [that] medical or first aid treatment, or for following [the resultant] orders or a treatment plan of a treating physician." 49 U.S.C. § 20109(c)(1)-(2). When it comes to § 20109(c), it appears Congress did not give the caboose its own engine. See PATH, 776 F.3d at 163 ("Congress did not intend subsection (c)(2) to be a vehicle for advancing an independent objective."). Further, the title of subsection (c), "Prompt medical attention," also supports a harmonious reading of subsections (c)(1) and (c)(2), one that ensures railroad employees receive such attention for on- the-job injuries and occupational illnesses and do not face discipline or retaliation for doing so. The Board does not argue a railroad's duty to provide "[p]rompt medical attention" (and the corresponding protections from discipline) extends beyond the work environment, so it remains difficult to see how subsection (c)(2) should not be read in light of subsection (c)(1)'s scope. In light of the statutory structure and context, subsections (c)(1) and (c)(2) should be read together to determine the scope of protected activity. The purpose of subsection (c)(1) is to ensure employees receive prompt medical attention if they are injured on the job; the anti-retaliation provision, subsection (c)(2), effectuates that purpose by protecting medical treatment for work injuries. See PATH, 776 F.3d at 164 n.11 (citing Burlington N. and Sante Fe Ry. Co. v. White, 548 U.S. 53, 63, 126 S. Ct. 2405, 165 L. Ed. 2d 345 (2006)) (noting that in Burlington, the Supreme Court "was not confronted with an argument that the two sections actually referred to each other, as we are here"). The Third Circuit seemed wary of accepting the wide-reaching implications of relying only on the Russello canon under these circumstances, and so are we. "Holding otherwise, as the [Board] did, would seem to foreclose the possibility that a statute could reference another provision without expressly saying so. That, of course, is contrary to Supreme Court precedent." PATH, 776 F.3d at
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164 n.10 (citing United States v. Navajo Nation, 556 U.S. 287, 299, 129 S. Ct. 1547, 173 L. Ed. 2d 429 (2009); Melkonyan v. Sullivan, 501 U.S. 89, 94, 111 S. Ct. 2157, 115 L. Ed. 2d 78 (1991)). In short, subsections (c)(1) and (c)(2) are structurally and logically married, joined under a title — "Prompt medical attention" — that limits both of its subsections together to injuries sustained "during the course of employment." Grand Trunk's characterization that the Board's reading of the statute creates uncontrolled, unlimited sick time for all railroad employees — or "absurd" results — is overstated. After all, subsection (c)(2) includes a provision designed to prevent the proverbial train wreck: (2) Discipline: A railroad carrier or person covered under this section may not discipline, or threaten discipline to, an employee for requesting medical or first aid treatment, or for following orders or a treatment plan of a treating physician, except that a railroad carrier's refusal to permit an employee to return to work following medical treatment shall not be considered a violation of this section if the refusal is pursuant to Federal Railroad Administration medical standards for fitness of duty or, if there are no pertinent Federal Railroad Administration standards, a carrier's medical standards for fitness for duty . . . 49 U.S.C. § 20109(c)(2) (emphasis added). In many circumstances, if a person were to receive a doctor's order that provided for "unlimited sick time," that person would not meet "medical standards for fitness of duty." See id. This exception thus cabins the parade of horribles. Nevertheless, even if the Board's reading would not create absurd results, it seems unlikely that Congress hid such an elephant in the § 20109(c)(2) mousehole. See Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 468, 121 S. Ct. 903, 149 L. Ed. 2d 1 (2001). The Board agrees that the limiting language in subsection (c)(1) — "during the course of employment" — only applies to bar interference with medical or first aid treatment for injuries that arise from work, or injuries "sustain[ed] on duty." Resp't Br. at 25; see id. at 23 ("[S]ection 20109(c)(1)'s protection is, for obvious reasons, explicitly limited to circumstances involving such [on-duty] injuries . . . ."); see In the Matter of Anthony Santiago, No. 10-147, 2012 DOL Ad. Rev. Bd. LEXIS 70, 2012 WL 3255136, at *7 (Admin. Rev. Bd. July 25, 2012) ("We hold that subsection 20109(c)(1) bars a railroad from denying, delaying, or interfering with an employee's medical treatment throughout the period of treatment and recovery from a work injury.") (emphasis added). That reading of subsection (c)(1) is difficult to square with the Board's reading of subsection (c)(2). Subsection (c)(2) first provides that a railroad carrier may not retaliate against "an employee for requesting medical or first aid treatment." 49 U.S.C. § 20109(c)(2) (emphasis added). If Congress had intended subsection (c)(2) to cover off-duty injuries, why would it have included the "for requesting" language? If an employee who is not injured "during the course of employment," § 20109(c)(1), would not "request[] medical or first aid treatment," § 20109(c)(2), at work, then the Board must assert the text bears a different scope for the connecting clause — "or for following orders or a treatment plan of a treating physician": (c) Prompt medical attention. (1) Prohibition: A railroad carrier or person covered under this section may not deny,
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delay, or interfere with the medical or first aid treatment of an employee who is injured during the course of employment . . . . (2) Discipline: A railroad carrier or person covered under this section may not discipline, or threaten discipline to, an employee for requesting medical or first aid treatment, or for following orders or a treatment plan of a treating physician, except that a railroad carrier's refusal to permit an employee to return to work following medical treatment shall not be considered a violation of this section if the refusal is pursuant to [FRA] medical standards for fitness of duty or, if there are no pertinent [FRA] standards, a carrier's medical standards for fitness for duty . . . . 49 U.S.C. § 20109(c) (highlighting and emphasis added) (on-duty; off-duty). This elephant-in- mousehole construction, see Whitman, 531 U.S. at 468, would not foster a "symmetrical and coherent regulatory scheme." Gustafson v. Alloyd Co., 513 U.S. 561, 569, 115 S. Ct. 1061, 131 L. Ed. 2d 1 (1995). The Board's responses to these contextual and structural arguments essentially sound in public policy: "[T]ying subsections (c)(1) and (c)(2) so tightly together narrows the effect of the provision in a manner that is inconsistent with FRSA's central purpose." Resp't Br. at 19-20. To the extent the Board invites us to engage in purposivism, let's look to the legislative history. The legislative history favors Grand Trunk's, and not the Board's, position. In 2008, Congress added several amendments to the FRSA's employee-protection provisions. These amendments included measures to "strengthen existing whistleblower protections for railroad employees . . . . [and] [p]rohibit railroad carriers from interfering with the medical treatment of injured workers." H.R. Rep. No. 110-336, at 59 (2007). Relevant to this case, the latter amendment codified at 49 U.S.C. § 20109(c) was proposed in response to federal court decisions finding similar state laws pre-empted by certain Federal Railroad Administration regulations. The federal provision was enacted "for the protection of injured workers," ensuring "immediate medical attention free from railroad interference." H. Comm. on Transp. and Infrastructure, The Impact of Railroad Injury, Accident and Discipline Policies on the Safety of America's Railroads, at xiii (Oct. 22, 2007); see Rail Safety Legislation: Hearing Before the Subcomm. on R.Rs., Pipelines, and Hazardous Materials of the H. Comm. on Transp. and Infrastructure, 110th Cong. 45 (2007) (testimony of Mr. Pickett, International President, Brotherhood of Railroad Signalmen) ("The [bill] provides language to ensure that all injured railroad employees get the proper medical treatment for any on- job injuries."). An add-on discipline, or retaliation, provision was also enacted to protect a worker from prospective pressure that might deter him from requesting the first aid or medical treatment that would trigger an on-the-job injury "report." Id. at 161 (joint statement of the Teamsters Rail Conference and the United Transportation Union). The legislative record repeatedly refers to "on-the-job" injuries and occupational illnesses; yet it does not even suggest that subsection (c)(2) was intended to operate as an FMLA-style subsection for railroad employees. In short, nothing suggests that anyone at the time — including the Unions themselves — contemplated that the simple clause in § 20109(c) would encompass non-work- related illnesses or injuries. The remedial avenues under this statutory section reinforce the legislative intent. The retaliation claim in this case necessarily arose through OSHA's administrative processes. In response to
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"personal injuries and illnesses arising out of work situations," Congress created OSHA primarily to "assure so far as possible every working man and woman in the Nation [enjoys] safe and healthful working conditions." 29 U.S.C. § 651(a)-(b) (emphasis added). The statutory scheme does not support a conclusion that Congress (or the Department of Labor) intended OSHA to handle retaliation claims in connection with off-duty illnesses and injuries. In sum, the Board even concedes "that much of the legislative history discusses on-duty injuries," and "it has been unable to point to any express evidence that the policy now advances was ever considered by anybody at any point in the legislative process." PATH, 776 F.3d at 168. In sum, we join every other federal court that has interpreted 49 U.S.C. § 20109(c) and reject the Board's reliance on Russello. We therefore GRANT the petition and REMAND this matter to the Board with instructions that it dismiss the proceeding below.
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Help Keep the Claims Personnel Directory Current
The people listed below have been designated to perform changes and updates to keep the General Claims Conference claims personnel directory website, (AARGCC.org) current. Therefore, if you have an update to make to your information or you are aware of any incorrect information appearing in the directory, please contact the appropriate person from the list below. The preferred method is to send them an email outlining the specific information to be added, deleted or revised.
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A BNSF train passes by a field of wildflowers along the Houston subdivision near Brenham, Texas.
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