Exclusion of Liability Expert Leads to Summary Judgment for Railroad

The Box Butte County District Court of Nebraska granted partial summary judgment in favor of the railroad on the plaintiff’s claim under the Federal Employers’ Liability Act after excluding plaintiff’s liability expert, Tyler Kress. Kress’s opinions were offered in support of the plaintiff’s claims that his many years of working as an engineer caused him to develop bilateral carpal and cubital tunnel syndrome. Kress generally opined that the plaintiff’s work exposed him to ergonomic risk factors consistent with his injuries, and plaintiff was not warned or trained regarding such risks. The railroad moved to exclude Kress’s opinions because they were not founded upon substantial data, lacked foundation, were not based on valid methodology, did not fit the facts of the case and would not assist the jury. In relying on other courts that similarly excluded Kress, the court found Kress failed to inspect plaintiff’s work environment and only relied upon his experience with other railroads in other locations. Kress failed to identify what in plaintiff’s work environment actually posed an ergonomic risk. The Court properly held Kress’s testimony did not meet the standard for admissibility of an expert, and he was excluded from testifying at trial.

Following the exclusion of the plaintiff’s liability expert, the Court granted summary judgment in favor of the railroad on the plaintiff’s FELA claim. Without Kress’s testimony, the plaintiff had no evidence that BNSF failed to meet its standard of care in providing the plaintiff with a reasonably safe place to work. Plaintiff’s argument describing the physical demands of his work was insufficient to show his workplace was unreasonably safe.

Mullanix v. BNSF Railway Company, Case No. CI 09-89 (Neb. Dist. Ct. Feb. 14, 2017).

Defense Verdict for Railroad in FELA Case

Following a two-day trial, a jury in the District Court of Scotts Bluff County, Nebraska returned a verdict in favor of the railroad on an employee’s claim under the Federal Employers’ Liability Act. Plaintiff claimed he injured his right shoulder while working on a steel gang and operating a claw bar to remove a bent spike. After the incident, plaintiff underwent rotator cuff surgery and returned to work for the railroad.

Plaintiff complained the railroad failed to provide him with a hydraulic spike puller on the spiker machine to remove the spike. At trial, he conceded one was available elsewhere on the gang, but he never asked for it. Ultimately, the evidence showed that the hydraulic spike puller would have been unable to remove the spike due to the spike’s condition. Plaintiff then argued the claw bar was not reasonably safe because BNSF knew it could slip and did not do anything about it. Despite this claim, he admitted it was the right tool for the job, reasonably safe, and he was trained on how to use the tool and continues to use it.

The railroad demonstrated plaintiff’s negligence in operating the claw bar. A welding foreman who witnessed the incident testified that he saw plaintiff struggle using the claw bar and radioed for him to stop so the foreman could assist. The foreman claimed plaintiff made eye contact with him, but continued to push on the claw bar anyway and it slipped off the spike. The railroad showed that plaintiff was trained to use the claw bar to anticipate slipping and his overexertion while encountering difficulty was the reason the claw bar slipped. Eventually, plaintiff accepted some personal responsibility for the incident.

The jury returned a unanimous verdict in favor of the railroad. Plaintiff did not appeal.

Frailey v. BNSF Railway Company, Case No. CI 13-641 (Neb.Dist.Ct. Feb. 14, 2017).

Eighth Circuit Affirms Dismissal in Medical Exam and Perceived Disability Discrimination Case

The U. S. Court of Appeals for the 8th Circuit recently affirmed the decision of the District Court of Nebraska that granted the trucking company summary judgment on all of plaintiff’s claims. The Court held the trucking company’s policy of requiring sleep apnea screening for drivers with a body mass index (BMI) of 33 or greater was a permissible medical exam under the Americans With Disabilities Act (“ADA”), 42 U.S.C. § 12112(d)(4)(A). The Court found that the trucking company’s evidence established the medical exam was job-related and consistent with business necessity.

The Court rejected the argument that an employer must consider an employee’s individual characteristics before mandating a sleep study. Instead, “[w]hen an employer requires a class of employees to submit to a medical exam, it also ‘must show that it has reasons consistent with business necessity for defining the class in the way that it has.’” (citing Conroy v. N.Y. State Dep’t of Corr. Servs., 333 F.3d 88, 101 (2d Cir. 2003). The Court held that the trucking company defined the class of employees reasonably: “Crete was reasonable to define the class as drivers with BMIs of 35 or above because (1) it has a reasonable basis for concluding that class poses a safety risk given the correlation between high BMIs and obstructive sleep apnea, and (2) the sleep study requirement allows Crete to decrease the risk posed by that class by ensuring that drivers with sleep apnea get treatment.”

The Court also affirmed dismissal of the perceived disability discrimination claim saying: “The undisputed evidence shows that Crete suspended Parker for refusing to submit to a lawful medical examination. That does not violate the ADA. Since Crete’s stated reason for suspending him was not pretext, Parker’s claim fails.”

Parker v. Crete Carrier Corp., In the U.S. District Court of Nebraska, aff’d, ___ F.3d ___ (8th Cir.) pet. for rehearing den’d (Nov. 16, 216).

Summary Judgment for Railroad in Crossing Collision

The railroad was granted summary judgment on a driver’s negligence claims arising out of an incident where she drove her vehicle into a railcar at a railroad crossing. The driver initiated a lawsuit against the railroad claiming the railroad was negligent in occupying the railroad crossing, failing to warn of the train’s presence in the crossing, failing to reflectorize the railcar over the crossing and failing to comply with unidentified federal laws, regulations and/or internal policies.

The railroad moved for summary judgment on all of the driver’s claims arguing the Federal Railroad Safety Act (“FRSA”) preempted her blocked crossing, inadequate warning device, and railcar reflectorization claims. The train was briefly over the crossing while the train crew was preparing to perform mandatory air brake tests after picking up railcars nearby. FRSA preemption was proper because the train crew complied with applicable federal regulations, federal funding participated in the installation of the reflectorized crossbucks at the crossing, the owner of the railcar had complied with federal regulations regarding reflectorization and the railcar was not required to be reflectorized at the time of the collision. The facts showed the locomotive horn was sounded prior to entering the crossing and the train was only stopped for about a minute before the driver ran into the railcar. The railroad also argued the claims failed as a matter of law because the driver could not show any of the alleged negligent conduct of the railroad caused her claimed injuries. Finally, the railroad argued the occupied crossing doctrine and the driver’s own negligence that was more than slight barred her claims.

The driver withdrew her failure to warn claims and the U.S. District Court for the District of South Dakota granted summary judgment on the remainder of her claims. Relying on authority from the Eighth Circuit Court of Appeals and the District of South Dakota, the Court held that the FRSA preempted the blocked crossing claim. The driver argued for an exception to FRSA preemption based upon the railroad’s alleged violations of federal regulations and/or internal rules while the railroad produced evidence of its compliance. Ultimately, the Court stated it did not need to address the claimed violations because the driver could not show the claimed violation was the proximate cause of her injuries. The collision was not a foreseeable consequence of any possible violation of the regulation or rules. Summary judgment in favor of the railroad was proper.

Jennifer Lynn Stock v. BNSF Railway Company, Case No. 4:14-cv-04074, 2016 WL 4572188 (D.S.D. August 31, 2016).

Eighth Circuit Affirms Dismissal of Obesity Discrimination Case

8th Circuit Affirms Dismissal of Obesity Discrimination Case

The U.S. Court of Appeals for the 8th Circuit recently affirmed the decision of the U. S. District Court for the District of Nebraska that granted the railroad summary judgment in an obesity  and perceived disability discrimination case. The Court held that the railroad did not discriminate against an obese job applicant in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12102 et seq., or as amended, the ADA Amendments Act of 2008 (ADAAA). After receiving a conditional job offer for a safety sensitive position, the applicant was denied employment “…in accordance with company policy that [the applicant] was ‘Not currently qualified for the safety sensitive Machinist position due to significant health and safety risks associated with Class 3 obesity (Body Mass Index of 40 or greater).’” (emphasis in original). The applicant claimed his morbid obesity was an impairment or he was perceived as having an impairment by the railroad.

The Court held obesity may only constitute an impairment if it is “the result of an underlying physiological disorder[.]” The Court based its ruling, in part, on the EEOC Interpretative Guidance defining impairment as “any physiological disorder or condition …affecting one or more body systems[.]” The Court rejected the argument that morbid obesity is an impairment if it is either outside the normal range or the result of a physiological condition. “Instead, like the district court, we conclude a more natural reading of the interpretative guidance is that an individual’s weight is generally a physical characteristic that qualifies as a physical impairment only if it falls outside the normal range and it occurs as a result of a physiological disorder. Both requirements must be satisfied before a physical impairment can be found.”

The Court also found no evidence of perceived disability discrimination. Appellant argued that the railroad “refused to hire him because it considered his obesity to present an unacceptably high risk that he would develop certain medical conditions in the future, and that [the railroad] therefore perceived him as having a current physical impairment.” The Court explained, “The ADA does not prohibit discrimination based on a perception that a physical characteristic—as opposed to a physical impairment—may eventually lead to a physical impairment as defined under the Act. Instead, the plain language of the ADA prohibits actions based on an existing impairment or the perception of an existing impairment. As noted by the district court, the EEOC’s own interpretive guidance specifically states that ‘the definition [of impairment] … does not include characteristic predisposition to illness or disease.'” 29 C.F.R. Pt. 1630, App’x § 1630.2(h).

Morris 8th Cir Opinion 4-5-16.

Morriss v. BNSF Ry. Co., ___ F.3d ___, 2016 WL 1319407 (8th Cir. Apr. 5, 2016). Oral argument, Bryan Neal, Thompson Knight; On the brief, Nichole Bogen.

Summary Judgment for Railroad in Retailiation Case

The U.S. District Court for the Southern District of Iowa granted summary judgment in favor of the railroad against three plaintiffs in a lawsuit alleging retaliation for engaging in a protected activity under the Federal Railroad Safety Act (“FRSA”), 49 U.S.C. § 20109. During a train crew change in rural Iowa, an outbound crew member was injured. Plaintiffs in the FRSA case, three inbound crew members, and three additional crew members were subjected to a formal investigation, pursuant to their respective collective bargaining agreements (“CBA”), to determine whether they had violated company rules during the crew change. All six were disciplined for rules violations following the formal investigation. Plaintiffs claimed they were disciplined contrary to 49 U.S.C. § 20109(a)(1)(C) [providing information related to an investigation of “a violation of any Federal law, rule, or regulation relating to railroad safety or security…”], when they reported “violations of the Federal Employers’ Liability Act, 45 U.S.C. § 51 (“FELA”), in post-incident statements to their supervisor, to a claims representative, and while testifying at the formal investigation.

The railroad moved for summary judgment on three grounds. First, plaintiffs failed to exhaust their administrative remedies with the Occupational Safety and Health Administration (“OSHA”) regarding some of their claims. Plaintiffs claimed administrative exhaustion was not mandatory. The Court held plaintiffs must first exhaust administrative remedies with OSHA under 49 U.S.C. § 20109(d), citing the Eighth Circuit’s previous statement that “an employee may obtain de novo review of a retaliation claim in federal court after exhausting administrative remedies.” Kuduk v. BNSF Ry. Co., 768 F.3d 786, 788 (8th Cir. 2014). The Court found plaintiffs did not exhaust their administrative remedies related to post-incident statements provided to a claims representative, their claims of excessive operations testing post-incident, or to their claims that they withheld themselves from work to avoid further discipline.

Second, the railroad asserted that some of plaintiffs’ claims required arbitration under the Railway Labor Act, 45 U.S.C. § 151, et seq. (“RLA”), rather than litigation under the FRSA. The Court held plaintiffs’ claims were independent of their CBA and did not require CBA interpretation.

Third and most significantly, the Court agreed plaintiffs failed to set forth a prima facie case of FRSA retaliation. Initially, the Court held plaintiffs did not engage in a protected activity under 49 U.S.C. § 20109(a)(1)(C). The Court held the FELA, a general negligence statute, did not specifically prohibit the conditions plaintiffs claimed were unsafe. Additionally, the Court noted the report of an unsafe condition under the FRSA would fall under 49 U.S.C. § 20109(b), “Hazardous safety or security conditions” and interpreting the report of an unsafe condition as also a report of a violation of federal law under section (a) would make the statutory provisions redundant.

Additionally, even if the Court accepted plaintiffs had engaged in protected activity, the Court found no evidence their activities contributed to the discipline they received. The Court explained that temporal proximity, without more, is insufficient to present a genuine factual issue on retaliation. Plaintiffs’ disagreements with the railroad regarding the legitimacy of their rules violations were not relevant to the Court’s analysis. The Court reaffirmed the Eighth Circuit’s admonition that “[f]ederal courts do not sit as a super-personnel department that reexamines an entity’s business decisions.” See Kuduk, 768 F.3d at 792.

Foster, et. al. v. BNSF Railway Company, Case No. 4:14-cv-313 (S.D. Iowa Jan. 28, 2016). Order.

Summary Judgment in Medical Exam and Perceived Disability Discrimination Case

The U. S. District Court for the District of Nebraska granted the trucking company summary judgment on all of plaintiff’s claims. In the case, plaintiff claimed he was discriminated against in violation of the Americans With Disabilities Act (“ADA”), 42 U.S.C. § 12112(d)(4)(A), by the company requesting him to undergo obstructive sleep apnea (“OSA”) screening due to his body mass index (“BMI”) of greater than 33. He claimed it was a wrongful medical exam and inquiry. He also claimed the company perceived him as disabled in violation of the ADA despite his positive safety record of driving and training for the company.

The company had a workplace policy of requiring new and current drivers with a 33 and above BMI on their most recent Department of Transportation (“DOT”) physical exam to undergo OSA screening via a sleep study at one of the company’s dedicated testing centers. Plaintiff had a BMI on his most recent DOT physical exam greater than 33, but he refused to participate in the sleep study. He also had a physician’s assistant fax a note to the company saying a sleep study was not “medically necessary” for him. Even so, the company took him out of service due to his failure to comply with the policy. Plaintiff claimed he was constructively discharged and sought past and future wage loss damages, punitive damages, and attorney fees.

The Court granted the company summary judgment on the medical exam and inquiry claim, because the company “made a showing of job-relatedness and business necessity of its inquiry and medical-examination request, and Parker [] failed to rebut that showing[.]” “Based on [the company’s] knowledge of DOT regulations, Federal Motor Carrier Safety Administration recommendations, and obvious safety concerns associated with OSA and fatigued drivers of commercial vehicles, [the company] had sufficient objective evidence upon which it could determine that requiring its drivers with a BMI of 33 or above to submit to a sleep study was job-related and consistent with business necessity within the meaning of the ADA, and a jury could not find otherwise.”

On the perceived disability claim, the Court held that, “As discussed above, taking [plaintiff] out of service was a consequence of not complying with [the company’s] narrowly defined sleep apnea policy that was developed in reliance on DOT regulations and recommendations by the Federal Motor Carrier Safety Administration and is uniformly applicable to all of [the company’s] drivers having a BMI of 33 or above. Because plaintiff has failed to show that [the company’s] stated reason for its action is pretextual and based on intentional discrimination, summary judgment must be granted in favor of [the company] on this claim.”

Parker v. Crete Carrier Corp., Case No. 4:14CV3195, 158 F.Supp.3d 813 (Dist. Neb. Jan. 20, 2016) (on appeal).

Memorandum and Order

Partial Summary Judgment and Dismissal of Railroad Case

The Douglas County District Court of Nebraska granted partial summary judgment in favor of the railroad on plaintiff’s Locomotive Inspection Act (“LIA”), 49 U.S.C. § 20701, claim. Later, the Court denied the railroad’s motion for summary judgment on plaintiff’s Federal Employer’s Liability Act (“FELA”), 45 U.S.C. § 51, claim, however the Court still dismissed plaintiff’s case for failure of prosecution. The case involved two falls by an engineer occurring on back-to-back days. On the first day, he claimed he fell down locomotive steps due to the lack of a handrail, and on the subsequent day, he fell on ballast that was “uneven” and “gave way” in a railyard while he was walking to a crew van. He claimed permanent and debilitating injuries to his knee.

The railroad moved for summary judgment on the LIA claim because plaintiff could not identify or prove a defect in the locomotive to support his claim. Plaintiff alleged a design defect theory of liability as well as rule and regulatory violations in maintenance of the locomotive. In dismissing the claim, the Court found the facts undisputed that the locomotive was in compliance with all Federal Railroad Administration locomotive safety regulations and the LIA. Order Granting Motion for Partial Summary Judgment 2-6-15

The railroad later moved for summary judgment on the FELA claim because the railroad was in compliance with the federal regulations governing track structures and ballast regulations and plaintiff had failed to identify any defect in the ballast where he was walking. The Court denied the motion holding there were facts issues in dispute. The Court subsequently twice scheduled the claim for trial, and plaintiff moved for continuances on both occasions. Order Denying Motion for Summary Judgment

At the second setting of the trial, plaintiff was not prepared to proceed and he admitted he could not establish his case without a medical expert on the issue of causation. After examining the docket and the multiple delays in the proceedings, the Court dismissed plaintiff’s remaining claims pursuant to Neb. Rev. Stat. § 25-601(2) and/or (5). Dismissal Order

Odell v. BNSF Railway Company, Case No. CI 12-7872 (Neb. Dist. Ct. Feb. 6, 2015 LIA Order; Jan. 5, 2016 FELA Order; Jan. 5, 2016 Dismissal) (An appeal is pending.)

Summary Judgment for Railroad in Retaliation Case

The U.S. District Court for the District of Nebraska granted summary judgment in favor of the railroad under the Federal Railroad Safety Act (“FRSA”), 49 U.S.C. § 20109. The Court held the railroad did not discipline an employee as a result of filing a personal injury report. While working as a laborer replacing rail, plaintiff stepped between loose and fixed rail and his foot became pinned. The railroad investigated the incident determining plaintiff violated various rules and disciplined him accordingly. Plaintiff alleged the railroad disciplined him for reporting his work-related personal injury. Plaintiff argued the injury report was a contributing factor to his discipline because the railroad would not have known he violated any rules had he not suffered an injury as a result. He sought damages for lost wages, pain and suffering, attorneys’ fees and punitive damages.

The railroad moved for summary judgment asking the Court to dismiss the case because plaintiff could not prove a prima facie case under the FRSA. The railroad demonstrated plaintiff’s report of his work-related injury did not contribute to the discipline assessed and introduced evidence the railroad would have assessed the same discipline regardless of whether he reported his injury.

In the opinion, the Court reiterated the elements of a claim under the FRSA under Kuduk v. BNSF Railway Company, 768 F.3d 786 (8th Cir. 2014). Plaintiff was required to show that (1) he engaged in a protected activity; (2) the railroad knew he engaged in a protected activity; (3) he suffered an adverse action; and (4) the circumstances raised an inference that the protected activity was a contributing factor in the adverse action. In analyzing the last element of plaintiff’s claim, the Court stated, “the contributing factor that an employee must prove is intentional retaliation prompted by the employee engaging the protected activity.” In rejecting the plaintiff’s position, the Court found that it “cannot accept the implication that an injury report is a ‘contributing factor’ to an adverse action simply because it is a part of the administrative process which resulted in discipline.” The Court granted the railroad’s motion for summary judgment holding there was no evidence of intentional retaliation prompted by the plaintiff’s report of his injury.

Heim v. BNSF Railway Company, Case NO. 8:13-CV-369, 2015 WL 5775599 (D. Neb. Sept. 30, 2015).

Memorandum and Order

Summary Judgment for Railroad in FELA, LIA and SAA Case

The Douglas County District Court of Nebraska granted summary judgment in favor of the railroad and dismissed a retired employee’s negligence and strict liability claims under the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. § 51, and his strict liability claims under the Locomotive Inspection Act (“LIA”), 49 U.S.C. § 20701 and the Safety Appliance Act (“SAA”), 49 U.S.C. § 20301. Plaintiff, a retired conductor with 35 years of service, claimed he suffered an injury to his shoulder as a result of his entire career that required him to “…repetitively operate poorly maintained and inefficient handbrakes, track switches and other railroad equipment; mount and dismount from moving railroad equipment; ride and work on the sides of railroad equipment operated over rough and unsafe track; and perform other repetitive tasks in an ergonomically-inferior environment.” He sought damages for pain and suffering, past wage loss, loss of future earning capacity and reduced work-life expectancy.

Defense counsel’s retained ergonomist and professional engineer, experienced in ergonomics and the biomechanics of the job tasks of conductors, opined that the tasks performed by conductors are reasonably safe and the railroad provided plaintiff with a reasonably safe place to work. Defense counsel’s retained physician, specializing in orthopedic and occupational medicine, opined that plaintiff’s work tasks as a conductor did not contribute, in whole or in part, to his claimed shoulder condition, and other factors, namely plaintiff’s age and anthropomorphic features, were the likely alternative causes for his shoulder condition. Plaintiff did not retain any expert witnesses.

Defense counsel moved for summary judgment asking the Court to dismiss the case because plaintiff had no evidence of negligence, rule violations, or regulatory or statutory violations to support his claims. The railroad’s unopposed evidence established that plaintiff was provided a reasonably safe place to work and his claimed shoulder condition was not caused by work. In opposition to the railroad’s evidence, plaintiff offered his treating physician’s medical records arguing they established that his injury was work-related.

The Court found there was no evidence that the railroad “failed to comply with” its own rules and dismissed the related strict liability claim based on a rule violation. The Court found no evidence in support of plaintiff’s negligence claim under the FELA, and no evidence of regulatory or statutory violations under the LIA and SAA. He dismissed all claims with prejudice and entered judgment in favor of the railroad. The Court did not reached the issue of medical causation and issued no ruling on the medical evidence.

Doyle v. BNSF Railway Co., Case No. 13-1426 (Neb. Dist. Ct. Sept. 17, 2015)

Order Granting BNSF’s Motion for Summary Judgment