Free Statement - District Court of Arizona - Arizona

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA STEVE SCHRUM, Plaintiff. v. BURLINGTON NORTHERN SANTA FE RAILWAY COMPANY, Defendant. ) ) ) ) ) ) ) ) ) )

Court No.

04 CV 619

Judge Robert C. Broomfield

PLAINTIFF'S STATEMENT OF MATERIAL FACT NOW COMES Plaintiff, STEVE SCHRUM, by and through his

attorneys, GEORGE T. BRUGESS and HOEY & FARINA, P.C., and for his statement of material fact states as follows: A. 1. Steve Schrum Steve Schrum worked at the Chemical Lime Plant over a

span of approximately one and one half years in 2000, 2001 and 2002. (Plaintiff's 20 days deposition each p. 74). He worked there p.

approximately

month.

(Plaintiff's

deposition

75). His job duties at the Lime Plant including switching rail cars, taking loads of coal in, spotting the cars and taking empty rail cars out. (Plaintiff's deposition p. 75). Some rail cars were loaded with coal or coke that was a powder; the lime was also powder. (Plaintiff's deposition p. 82). 2. When working at the Lime Plant, he would be there

switching cars on average 4 to 6 hours per day; some days he was

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there only 20 minutes, other days he was at the Lime Plant for 16 hours. (Plaintiff's deposition p. 84). 3. maybe 18 The coal and coke was on the ground at the Lime Plant, inches deep. The coal and coke would fall on the

tracks, the train would run it over and pulverize it to powder and the coal and coke dust would just build up. (Plaintiff's deposition p. 87). Under the chutes where the lime company loads the hopper railroad cars the lime dust could be 18 inches deep. (Plaintiff's deposition page 87). 4. While switching and spotting rail cars at the Lime

Plant, Plaintiff was required to walk along side the moving rail cars to watch out for anybody working near the track or cars coming. (Plaintiff's deposition p. 78). He walked through the

coal and lime dust and pushed the train through it every time he worked. snow. (Plaintiff's deposition p. 87). (Plaintiff's deposition p. 26). 5. The locomotives are equipped with air brakes; the air It was like walking in

lines are down-spouted; when the locomotive air brakes release pressure it kicks up the dust like a dust storm you see on T.V., where you can't see through it. 6. (Plaintiff's deposition p. 88).

Plaintiff complained about the conditions at the Lime (Plaintiff's deposition pp. 100-101).

Plant about once a week. 7.

While working at the Lime Plant Plaintiff attempted to (Plaintiff's deposition p. 101). But

use a paper respirator.

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when he took it off to talk in the radio, the inside of the respirator would become filled with dust. (Plaintiff's

deposition p. 140). 8. would Plaintiff protect him asked from the railroad for a respirator coke and that lime.

inhaling

coal,

(Plaintiff's deposition p. 104).

Plaintiff never received any

respirator that he could use and communicate to do his job. (Plaintiff's deposition p. 102). Plaintiff tried the technique

of taking off the respirator to talk, but it did not work. (Plaintiff's deposition p. 103). As Plaintiff explained, "If

you hold your hand over your mouth and try to speak, it's hard for people to understand you and that's the same thing you have going on with the respirator and hand-held radio. deposition pp. 103-104, 254). 9. Plaintiff was never provided a respirator while in (Plaintiff's

train service. 10.

(Plaintiff's deposition p. 104).

Plaintiff created deposition Exhibit 3 to memorialize (Plaintiff's

events and conversations regarding his exposures. deposition pp. 109-110). (Plaintiff Exhibit 3) 11.

Plaintiff told his supervisor, Mark Brown, that the

dust at the Lime Plant was making him sick around June 2001. (Plaintiff's deposition p. 119). 12. Plaintiff testified that the railroad did not provide (Plaintiff's deposition p. 126).

him with a safe place to work.

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That Plaintiff asked for a respirator and the railroad would not give him a respirator. 13. The BNSF (Plaintiff's deposition p. 127). provided Plaintiff with a Material

never

Safety Data Sheet (MSDS) for lime dust. pp. 128-129). 14. On occasion Plaintiff would

(Plaintiff's deposition

request

that

the

Lime

Plant would spray water to reduce the dust.

Even when the Lime

Plant would not water down the plant after asked, Plaintiff was ordered to work there by his supervisor. (Plaintiff's deposition pp. 136-137). 15. train by The danger with trying to control the movement of the radio if with a mask told on was the engineer to could and not the

understand;

Plaintiff

the

engineer

stop

engineer didn't understand and didn't stop the result could be catastrophic. (Plaintiff's deposition pp. 140-141). Plaintiff

tried working with a respirator on but his engineer could not understand Plaintiff's radio communications. (Plaintiff's

deposition pp. 141-142). 16. Plaintiff Wooten exchanged regarding e-mails the need with for his supervisor while

trainmaster

respirators

working at the Lime Plant. 154). (Plaintiff Exhibit 4) 17.

(Plaintiff's deposition pp. 153-

The chemical lime workers at the Lime Plant regularly (Plaintiff's deposition pp. 165-166).

wore respirators.

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18.

Not only Plaintiff complained about the conditions at

the Lime Plant, but other crew members Glen Moulder and Bill Webb complained to BNSF officials about the conditions at the Lime Plant. (Plaintiff's deposition pp. 167-168). (Plaintiff

Exhibits 1 and 2) 19. Plaintiff had asthma before working at the Lime Plant.

(Plaintiff's deposition p. 180). 20. Plaintiff developed bronchitis while working at the

Lime Plant and has not had bronchitis since he stopped working there. (Plaintiff's deposition p. 189). or worsened by working Plaintiff's asthma was at the Lime Plant.

aggravated

(Plaintiff's deposition p. 189). 21. work. Dr. Lindsay has restricted Plaintiff from returning to

(Plaintiff's deposition p. 214). 22. The last time Plaintiff worked for the railroad was in (Plaintiff's deposition p. 226).

February of 2003. 23.

He has not returned to work at the railroad because in

August 2003 the railroad sent Plaintiff a letter stating the railroad had no position available with his restrictions.

(Plaintiff's deposition p. 226). (Plaintiff Exhibit 5) 24. Plaintiff's current work restrictions are "no exposure

to toxic inhalants." (Plaintiff's deposition p. 228). (Plaintiff Exhibit 6)

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25.

The process for loading the lime cars at the Lime

Plant is to spot the car under the silo, the silo opens and the lime falls into the hopper car. 251). 26. Plaintiff saw the cars overfilled and lime come off (Plaintiff's deposition p.

the sides, lime sitting on top of cars and lime on the ground. (Plaintiff's deposition p. 252). 27. While at Chemical Lime Plant Plaintiff was exposed to (Plaintiff's deposition

coal dust, lime dust and exhaust fumes. p. 258). 28.

Plaintiff believes his problems are caused coal and

lime dust based on the fact that he had not been having problems prior to working there. 29. (Plaintiff's deposition pp. 258-259).

Plaintiff first experienced symptoms of his injuries (Plaintiff's deposition p. 269).

in late 2001, early 2002. B. 30. Frank Burg Plaintiff's

expert,

Frank

Burg,

has

been

an

OSHA

compliance officer for eighteen years and a safety expert for over thirty-five years; he can't remember a case where there was such a blatant disregard of the health and safety of a worker. (Burg deposition p. 16). 31. The railroad should know that it can never do this

again, and if they do someone could do some hard time. (Burg deposition p. 16).

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32.

The

railroad

knew

that

its

employees

were

being

exposed to hazardous chemicals and failed to take any reasonable measures to protect Mr. Schrum. (Burg deposition p. 17). 33. Lime Any BNSF manager who knew about the exposures (at the and failed that to act to determine were the amount to of and

Plant)

hazardous

material

BNSF

employees

exposed

failed to determine what action needed to be taken to protect them has the potential of being held to criminal neglect. (Burg deposition p. 20). 34. In a 1937 education film produced by the U.S.

Department of Labor, the Secretary of Labor, Francis Perkins, shows mineral dust, calls it "death dust" and tells the country no worker should be exposed to dust and if dust is seen in the air action needs to be taken immediately. (Burg deposition p. 22). 35. Determining the appropriate respirator for a potential

exposure is not hard to do. Both 3M Corps and Mines Safety Appliance Corps will come out and do everything that needs to be done at a very moderate cost. (Burg deposition pp. 44, 45). 36. including Burg has the BNSF safety program although in he his did files, not

respiratory

protection;

specifically review it for this case, there is no doubt BNSF violated its own policies and procedures. (Burg deposition p. 48).

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37. protection

The BNSF allowed a worker to work without respiratory in a mineral dust environment, which is totally

unacceptable. (Burg deposition p. 52). 38. The BNSF is aware of the materials at the Lime Plant

because they service the Lime Plant. (Burg deposition p. 53). 39. The law, practice and custom require the BNSF to

determine the level of exposure at the site and take appropriate action; the BNSF's blatant violation of the law is that BNSF did not determine the level of exposure at the site. (Burg

deposition p. 53). 40. Burg relied on the testimony of Schrum about the

levels of dust in the air and the MSDS regarding the composition of the dust to suggest that the air quality deposition at the plant

violated

applicable

standards.

(Burg

pp.

54-55).

(Plaintiff Exhibit 7) 41. Burg opined that the following violated applicable

standards at the Lime Plant: 1) 2) failure to perform a hazard evaluation; failure to certify the elimination of the hazard by providing proper personal protection; 3) 4) failure to train; and failure to follow hazcom.

(Burg deposition pp. 56-59).

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42.

The railroad failed to have an adequate safety program

as required by standard, custom and practice. (Burg deposition p. 59). 43. A safety program will: · · · have specific rules for each job; communicate the rules to all parties; monitor the work area to make sure the rules are followed; and · take enforcement action if the rules are not

followed. (Burg deposition p. 60). 44. The evidence here is that coal dust was 18" deep on

the ground, the pneumatics and movement of the locomotives blew it into the air to the point where Schrum and his fellow

employees could hardly see, their sinuses and throats filled up with it; it was something like the coal mines in the 1940's and 50's. (Burg deposition p. 61). 45. Although there are permissible exposure limits for

coal, coke and lime dust listed in OSHA, you do not have to be over the limits to require PPE; any exposure to these hazards is cause to reach the action level and take action to protect the worker from the exposure. (Burg deposition pp. 62-63). 46. The testimony of Schrum, the corroborations of his

fellow employees and the correspondence between Schrum and the

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BNSF, is Burg's evidence that the BNSF permitted its employees to be exposed to chemicals that violated permissible exposure limits. (Burg deposition pp. 63-64). 47. should BNSF's respiratory policy was violated because BNSF provided Schrum a proper respirator for mineral

have

dust. (Burg deposition pp. 74-75). 48. Burg's opinion that Schrum's exposure to mineral dust

(coal, coke, lime and diesel) caused serious respiratory and sinus problems is based on his thirty-five years of experience conducting hygiene surveys and that he teaches safety classes about the hazards of dust; in his experience exposures to

mineral dust have resulted in serious damage to the respiratory system and lungs of workers. (Burg deposition pp. 76-77). 49. The following provisions of the BNSF safety program

were violated: · personal protective equipment; · respiratory protection; · hazard communication; · protective policy for the safety and health of their employees. (Burg deposition pp. 81-82). 50. problems The fact not that Schrum any had of a history Burg's or respiratory (Burg

would

change

opinions.

deposition p. 85).

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51.

The "hierarchy of safety" required BNSF first to find

out if it could engineer the hazard (of dust) out; if not, then to implement administrative controls to make sure people can't go near dust; the last choice is personal protective equipment. (Burg deposition p. 93). 52. Any manager at BNSF that heard of a situation where

someone was breathing dust or getting it on their clothes, they should move right in and stop it immediately. (Burg deposition p. 96). 53. the coal Burg explained in the old days when a worker went into mines in West Virginia, they knew they would be

breathing coal dust, that they could

get black lung and shorten

their lives; but in modern times with the advent of OSHA and the hazard communication standard, that is not allowed. (Burg

deposition p. 97). 54. BNSF is required by law to provide MSDS information to

their employees. (Burg deposition pp. 98-99). 55. Burg medical opinions on causation are based on his

experience concerning the hazardous and toxic nature of dust. (Burg deposition p. 108). 56. It is not sufficient for BNSF to simply warn of the

possible exposure. (Burg deposition p. 109).

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57. Lime 114). 58.

BNSF knew of the exposure because workers from the wore respiratory protection. (Burg deposition p.

Plant

From Schrum's deposition, it sounds like the lime was

way over the limit; but there is a difference between hazcom requirements and the requirements for issuing a citation; hazcom communications apply to any exposure. (Burg deposition pp. 116, 117). 59. The obligation standard is to not take action under on a the hazard of a

communication

dependent

finding

certain level of exposure. (Burg deposition p. 117). 60. A paper respirator is not acceptable. (Burg deposition

pp. 121-127). 61. As a safety and health professional, Burg learned that

there are deleterious effects of various chemicals and materials on the human body. (Burg deposition p. 134). C. 62. 63. Dr. Raja Khuri Dr. Khuri is a physician. (Khuri deposition p. 5). From 1979 to 1995 Dr. Khuri functioned as chief

medical officer of the Santa Fe Railroad. (Khuri deposition pp. 6-7). 64. In 1995 he became chief medical officer of the merged

company, BNSF. (Khuri deposition p. 7).

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65.

He was involved in hiring new employees from a medical

standpoint. (Khuri deposition p. 13). 66. On Steve Schrum's initial medical examination for

employment by the railroad, Schrum checked off the box that he had asthma. (Khuri deposition p. 16). 67. chest Because Schrum checked off asthma, Dr. Khuri needed a and pulmonary function test to make a

x-ray

"classification." (Khuri deposition p. 17). 68. A "classification" is determining whether the employee

can work unrestricted as in "class one." (Khuri deposition p. 17). 69. Dr. Khuri obtained and reviewed a chest x-ray for

Schrum. (Khuri deposition p. 18). 70. 71. The chest x-ray was normal. (Khuri deposition p. 19). Dr. Khuri obtained a pulmonary function test in

performing his duties to determine how to classify Mr. Schrum. (Khuri deposition p. 19). 72. Although the pulmonary function test revealed a small

reduction in vital capacity, it was not significant for the job Schrum was doing. (Khuri deposition p. 20). 73. It was the policy and practice at the railroad to

provide a respirator or mask if work conditions caused exposure to lime or coal dust. (Khuri deposition p. 21).

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74.

It was the responsibility of the local management of

the railroad to determine whether employees were exposed to coal or lime dust. (Khuri deposition p. 21). 75. It was the responsibility of local management of the

railroad to provide masks or respirators to employees exposed (to coal or lime dust). (Khuri deposition p. 21). 76. Dr. Khuri is very well familiar with MSDS. (Khuri

deposition p. 22). 77. A MSDS is an appropriate guide for the type of mask or

respirator to be used when an employee is assigned to work in areas breathing coal or lime dust. (Khuri deposition p. 22). 78. their The BNSF industrial would hygiene conduct department testing as part may of

normal

function

and

have

inspected and tested the chemical Lime Plant, but Dr. Khuri has no knowledge whether they actually did. (Khuri deposition pp. 27-28). 79. Although Mr. Schrum's report indicated wheezing in the

right lung field, after the x-ray and lung function test, Dr. Khuri classified Schrum "unrestricted." (Khuri deposition pp. 34-35). D. 80. Dr. Charles Lindsay Dr. Lindsay is a physician licensed to practice

medicine in the State of Arizona. (Lindsay deposition pp. 5, 6).

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81.

Dr. Lindsay saw Plaintiff on February 11, 2002 for

coughing and hard time breathing. (Lindsay deposition pp. 6, 7). 82. His diagnosis was asthma, bronchitis, asthmatic

bronchitis, sinusitis and rhinitis. (Lindsay deposition p. 7). 83. mainly Asthma is a reaction in the airways to an irritant, in the main stem bronchus and bronchi. (Lindsay

deposition p. 7). 84. On March 10, 2003, Mr. Schrum was seen again for his

breathing problems, asthma, dizziness and shortness of breath. (Lindsay deposition pp. 7, 8). 85. breathing On March 10, 2003 Dr. Lindsay referred Mr. Schrum to a specialist; Mr. Schrum had high blood pressure,

asthma, fatigue and dizziness. (Lindsay deposition p. 9). 86. It is Dr. Lindsay's practice to refer patients to

specialists for consultation and to rely on the consultant's report in providing care and treatment to his patients; Dr. Lindsay referred Mr. Schrum to Dr. Reidy, a pulmonologist.

(Lindsay deposition pp. 9, 10). 87. Dr. Reidy provided a report to Dr. Lindsay; the report

included that "the patient is a 31 year old male who states he used to work among lime dust and coal dust. While there he began having increasing problems with cough and shortness of breath." (Lindsay deposition p. 10).

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88.

That was Dr. Lindsay's understanding of Mr. Schrum's

illness in April 2003 and Dr. Lindsay relied on Dr. Reidy's report in his care and treatment of Mr. Schrum. (Lindsay

deposition pp. 10, 11). 89. Dr. Lindsay reviewed Dr. Reidy's report with Mr.

Schrum on April 16, 2003. (Lindsay deposition p. 12). 90. He felt the asthma was becoming chronic. (Lindsay

deposition p. 12). 91. Dr. Lindsay made the decision in April 2003 to take

Mr. Schrum off work. Dr. Lindsay filled out a report taking Mr. Schrum off work that was faxed to Linda Martellaro, Medical Care manager for the BNSF account. (Lindsay deposition pp. 12, 13). (Plaintiff Exhibit 8) 92. At the same April 16, 2003 visit, Dr. Lindsay referred

Mr. Schrum for a cardiac consult; the lung problem can affect the heart; the shortness of breath can indicate cardiac

involvement. (Lindsay deposition p. 14). 93. Mr. Schrum saw the cardiologist Dr. Saadeh on April

18, 2003; Dr. Lindsay relied on Dr. Saadeh's report in his care and treatment of Mr. Schrum; Dr. Saadeh related Mr. Schrum's exposure to fumes and dust at work and his wheezing and

shortness of breath; Mr. Schrum's echocardiogram was essentially normal; Dr. Lindsay rules out some cardiac problem as the cause

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of Mr. Schrum's shortness of breath. (Lindsay deposition pp. 15, 16, 17). 94. On Mr. Schrum's return to Dr. Lindsay on May 1, 2003,

Mr. Schrum's lungs were improved; Dr. Lindsay assumes taking Mr. Schrum off work might have helped him. (Lindsay deposition pp. 17, 18, 19). 95. It looked promising for Mr. Schrum at that time that

he had exposures at work, he was taken off work and then his lungs improved. (Lindsay deposition p. 19). 96. Dr. Lindsay returned Mr. Schrum to work in July of

2003 with the restriction that Mr. Schrum have no exposures to toxic inhalants at work; and if lime dust seems to bother him then obviously it's a toxic substance to him, same for coal dust. (Lindsay deposition pp. 20, 21). 97. Mr. Schrum told Dr. Lindsay that while working at the

railroad he was taking product from a Lime Plant someplace; it seemed to be dusty and it seemed to irritate his lungs when he went to work. (Lindsay deposition p. 22). 98. Dr. Lindsay expects that a person with asthma who

breaths or inhales lime dust at work could or might irritate their asthma. (Lindsay deposition p. 22). 99. Mr. Schrum was off work April to August of 2003 and

returned to work with the restriction of no exposure to toxic inhalants. (Lindsay deposition pp. 23-24).

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100. Dr. Lindsay testified as follows: Q. "Do you have an opinion with a reasonable degree of medical certainty whether this history of exposure to lime and coal dust aggravated Mr. Schrum's asthma? A. I am not and expert in this area. There was

obviously something that he was in contact with that during the period of time aggravated his asthmatic bronchitis condition. I am not an occupational medicine specialist in this day and age, and I have not inspected the plant nor his working environment. However, during the time that he worked, it seemed to exacerbate his asthmatic condition. Q. Okay. And then when he was off work, his

asthmatic condition improved? A. Appeared to, yes."

(Lindsay deposition p. 25). 101. Dr. Lindsay testified as follows: "Q. (BY MR. BRUGESS) Do you have an opinion with a reasonable degree of medical certainty whether Mr.

Schrum's time off of work in 2003 was caused in w hole or in part by the aggravation of his asthma? THE WITNESS: Q. (BY MR. Yes. BRUGESS) And what's the opinion; the

opinion is that it was? A. My opinion: If something was aggravating it

during that period of time." (Lindsay deposition p. 26). 102. Dr. Lindsay testified as follows:

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"Q. Doctor,

what

is

your

recommendation

for

Mr.

Schrum as far as continued exposures to things like any toxic inhalant, including things like lime or coal dust? A. Yes. My opinion is: If he cannot be desensitized

and then if any toxin aggravates him, he should stay away from that type of occupation or pleasure

environment." (Lindsay deposition pp. 26-27). 103. Dr. Lindsay opined that: "Q. (BY MR. BRUGESS) And why? What effects could

exposures to toxic inhalants have in the future on Mr. Schrum in relation to his asthma? Q. A. (BY MR. BRUGESS) If any. Again, it's and seemingly which chronic we understood get from by most and not

pulmonologists literatures,

lectures

that

asthmatic

bronchitis

treated properly can result in emphysematous changes, which can be very life threatening over a period of time." (Lindsay deposition p. 27). 104. Dr. Schrum away Lindsay from the had objective evidence his that taking in Mr. Dr.

workplace

helped

asthma;

Lindsay's examinations before Plaintiff was taken off work, his lungs were noisy and after Plaintiff was taken off work his lungs were clear or less noisy. (Lindsay deposition p. 44).

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E.

Discovery Documents

105. Chemical Lime produced a document, 50-CL-0002, which required non-employees at the Lime Plant as follows: "2. Dust masks will be provided and must be worn when conditions requiring their use are prevalent." (Plaintiff Exhibit 9). 106. The MSDS for Quicklime issued by the U.S. Department of Labor and provided by Chemical Lime Company states as

follows: "Section VI ­ Health Hazard Data Inhalation can cause coughing, breathing problems.

sneezing

or

Respirable crystalline silica from occupational sources is classified by IARC as a Group I Carcinogen. Signs and Symptoms of Exposure ...coughing or breathing problems. Medical Conditions Generally Aggravated by Exposure Respiratory problems, asthma,... Section VII ­ Precautions for Safe Handling and Use ...avoid inhalation of dust. Section VIII ­ Control Measures Respiratory Protection (Specify Type) Dust masks meeting the NIOSH N95 sufficient for casual exposure. (Plaintiff Exhibit 7). 107. Mr. Schrum was examined by Dr. Norman Fernando at the request of Defendants. His report is document number BNSF 0244. Dr. Fernando's report states at p. 5:

rating

are

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"In summary, Mr. Steve Schrum does have allergic rhinitis and asthma. His asthma has worsened in the last few years. He has seen three pulmonologists and they all believe he has asthma... He does have asthma that is worsened with certain kinds of inhalant or dust... It is possible that dust of any type may precipitate and worsen his asthma. ...Ideally he should avoid any type of gas or irritant exposure." (Plaintiff Exhibit 10).

Respectfully submitted,

s/ George T. Brugess George T. Brugess Attorney for Plaintiff

George T. Brugess HOEY & FARINA, P.C. 542 South Dearborn Street Suite 200 Chicago, Illinois 60605 312/939-1212

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PROOF OF SERVICE Manuela D. Popescu a non-attorney, certifies that she served a copy of the foregoing document upon the attorneys listed below via the Court's E-filing system and by placing a copy thereof in the United States Mail box located at 542 S. Dearborn, Chicago, Illinois addressed as below, with proper postage affixed at or before 5:00 on March 23, 2006. Sal J. Rivera Melissa W. Rawlinson William L. Thorpe FENNEMORE CRAIG 3003 North Central Avenue Suite 2600 Phoenix, Arizona 85012-2913

Charles D. Onofry SCHNEIDER & ONOFRY, P.C. 3101 North Central Avenue Suite 600 Phoenix, Arizona 85012

s/ Manuela D. Popescu

George T. Brugess HOEY & FARINA, P.C. 542 South Dearborn Street Suite 200 Chicago, Illinois 60605 312/939-1212

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