Free Response to Motion - 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 RESPONSE TO THE MOTIONS OF BURLINGTON NORTHERN SANTA FE RAILWAY COMPANY AND CHEMICAL LIME FOR SUMMARY JUDGMENT Standard "Under Rule 56(c), summary judgment is proper when the

pleadings and discovery, read in the light most favorable to the nonmoving party, demonstrate that there is no genuine issues as to any material fact and that the moving party is entitled to judgment as a matter of law." Armstrong v. Burlington Northern Railroad Co., 139 F.3d 1277 (9th Cir.1998). "Although railroad companies do not insure against

accidents and the plaintiff in FELA cases still bears the burden of proving negligence, courts have held that only `slight' or `minimal' evidence is needed to raise a jury question of

negligence under FELA." Mendoza v. Southern Pac. Transp. Co., 733 F.2d 631, 632 (9th Cir.1984). (internal citations omitted). Liability may be found where "employer negligence played any

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part, even the slightest, in producing the injury..." Oglesby v. Southern Pac. Transp. Co., 6 F.3d 603, 607 (9th Cir.1993)

(quoting Rogers v. Missouri Pac. R.R., 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493 (1957). 139 F.3d 1279. Facts Plaintiff went to work for the Defendant, BNSF in June of 1994. At his pre-employment physical exam Plaintiff disclosed that he had a history of asthma. Before the railroad would "make a classification," the railroad's chief medical officer, Dr.

Raja Khuri, ordered that chest x-rays and a pulmonary function tests be performed on Plaintiff. Following the approval of these tests, Plaintiff was classified for service. In Chemical 2000 Lime Plaintiff Plant in was ordered by BNSF Lime to service the bulk

Nelson.

Chemical

processes

quick lime (CaO.) Plaintiff's job duties as a switchman required him to walk on the ground alongside train cars to spot them under pipes where the cars are loaded with lime. When the cars were in the right spot, Plaintiff radioed the engineer to stop the train. Typically, a count down is communicated to the

engineer as the train cars neared the loading spot, i.e. "10 cars, 5 cars, 3 cars, 2 cars, 1 car, stop." The movement of the train cars under the loading pipes stirred up a lot of lime dust like a dust storm. Whereas lime company employees wore dust masks, Plaintiff couldn't because

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with a mask on he could not communicate with the engineer. With a mask on the engineer could not understand Plaintiff's

countdown and stop commands. Shortly after he began work at the Chemical Lime Plant, Plaintiff management initiated in which a series of communications a mask with to use BNSF at

Plaintiff

requested

Chemical Lime, compatible with his radio. Although asked many times, the railroad refused to provide Plaintiff with a mask he could wear that allowed Plaintiff to communicate with the

engineer while spotting cars at Chemical Lime. Medical Plaintiff complaints of saw Dr. Lindsay on February and 11, On 2002 with

trouble

breathing

cough.

Physical

examination, Plaintiff's lungs had bronchi/wheezing. On March 10, 2003 Plaintiff's lungs were wheezing. On March 17, 2003, Plaintiff's lungs were wheezing. On April 16, 2003 Dr. Lindsay ordered Plaintiff not to work. By May 1, 2003 Plaintiff's lung sounds had improved. By August 12, 2003, Plaintiff's lungs were 95% improved. In July of 2003 Dr. Lindsay released Plaintiff to return to work with the restriction of no exposure to toxic inhalants at work. Dr. Lindsay referred Plaintiff to Dr. Reidy, a

pulmonologist, and Dr. Saadeh, a cardiologist, for consultation. Both doctors took a history that connected Plaintiff's lung

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problems to Plaintiff's exposure to lime and coal dust at work on the railroad. The railroad has not accommodated Plaintiff's restrictions from Dr. Lindsay that Plaintiff not be exposed to toxic

inhalants. Plaintiff has not been permitted to return to work by the railroad. Argument Negligence Under the Federal Employers' Liability Act, the railroad has the non-delegable duty to provide Plaintiff with a safe place to work. When a railroad assigns its employees to work on property under the control of a third party over which the

railroad has no control, the railroad must inspect the third parties' property for hazards and protect its employees from possible damages. Shenker v. B & O Railroad, 374 U.S. 1, 7, 83 S.Ct. 1667, 1672, 10 L.Ed. 2d 709 (1963); Nivens v. St. Louis Railway Co., 425 F.2d 114 (5th Cir. 1970); Ribitzki v. Canmar Reading & Bates, Ltd., 111 F.3d 658, 662 (9th Cir. 1996), "The employer of a seaman owes the seaman a duty under the Jones Act to provide the seaman with a safe place to work. This duty extends to providing a safe place to work on the ship of a third party over whom the employer has no control, if that is where the seaman's employer sends him to work" (citations omitted).

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Here, it is not disputed that the BNSF ordered Plaintiff to switch cars at the Nelson Chemical Lime plant. Therefore the railroad's duty to provide Plaintiff with a safe place to work included Plaintiff's work there. And the railroad had a duty to inspect the Nelson Chemical Lime plant for hazards and to take precautions to prevent Plaintiff from being exposed to hazards. In short, the BNSF had a duty to protect Schrum from exposure to lime dust, a toxic inhalant. Here, it is undisputed that the railroad made no inspection of the Nelson Chemical Lime plant. Even after being put on

notice by Plaintiff that unsafe dusty conditions existed at the lime plant, the railroad did nothing to mitigate the danger. The Material Safety Data Sheet (MSDS) for lime states that inhalation can cause coughing, sneezing or breathing problems, and that respiratory problems and asthma are aggravated by

exposure to lime dust. The MSDS further provides to avoid inhalation of dust. The MSDS requires respiratory protection ­ dust masks meeting NIOSH, N 95. Plaintiff Burg. retained a safety expert in this case, Frank

Burg opined that the BNSF was negligent for: 1. failing to conduct a required "hazard

determination"; 2. failing to provide a dust mask to Plaintiff;

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3.

exposed

Plaintiff

to

hazardous

dust

in

the

workplace; and other negligent acts as stated in his report. Burg testified that the railroad violated certain federal safety regulations. The violation of a regulation by the railroad is negligence per se. 394, 2 Kernan v. American Dredging, 355 U.S. 426, 78 S.Ct. L.Ed.2d 382 (1958); Walden v. Illinois Central Gulf

Railroad, 975 F.2d 361 (7th Cir. 1992); Martinez v. Burlington Northern Santa Fe Railroad, 276 F.Supp.2d 920 (N.D. Il. 2003). Here, there is a jury question whether the railroad was negligent under the FELA. Plaintiff was exposed to dust that he inhaled at the lime plant. The railroad never performed a hazard determination and violated the MSDS which requires a mask for those exposed to lime dust. Causation The reliance by Defendants on Claar v. Burlington Northern Santa Fe Railroad, 20 F.3d 499 (9th Cir. 1993) is misplaced. The facts in Claar are easily distinguished from the facts here. In Claar, Plaintiffs claimed esoteric injuries such as poor

arithmetic ability as a result of exposure to a variety of toxic substances at work. Because no witness could explain how an exposure to a specific toxin caused an esoteric result like difficulty in spelling or arithmetic, the court dismissed the case.

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In the instant case, Plaintiff claims that his exposure to lime and coal dust aggravated his asthma. The dangers of

inhalation of coal dust are well documented. The dangers of inhaling lime dust are stated in the MSDS and include

aggravation of asthma. In Ulfik v. Metra-North Commuter Railroad, 77 F.3d 54 (2d Cir.1996) the court explained the difference between a Claar situation and a case like Schrum's claim here. In Ulfik there was one exposure ­ to paint fumes. The exposure caused plaintiff to get dizzy and fall down the stairs. The court held expert testimony was not needed. The court explained how this was a different situation than Claar: Claar and Moody, however, are distinguishable from this case. In Claar, the Ninth Circuit Specifically limited its holding to those situations where some "special expertise [is] necessary to draw a causal inference." Claar, 29 F.3d at 504; see also Moody, 823 F.2d at 695 (if drawing particular conclusion requires specialized knowledge, then expert testimony is required). In Claar, special expertise was thought necessary because of the esoteric nature of the injuries alleged ­ dyscalculia and spelling dyspraxia. In this case, however, the trier of fact could reasonably determine, without expert testimony, that prolonged exposure to paint fumes would cause headache, nausea, and dizziness. See W. Page Keeton et al., Prosser & Keeton on the Law of Torts § 41, at 270 ed. 1984) ("Circumstantial evidence, expert (5th testimony, or common knowledge may provide a basis from which the causal sequence may be inferred.") Under FELA, the circumstantial evidence presented by Ulfik on this issue was sufficient to create a genuine issue of material fact, and the motion for judgment as a matter of law should have been denied.

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Plaintiff's evidence here on medical causation includes: 1. Dr. Lindsay testifying that Mr. Schrum's exposure to toxic inhalants at work (lime dust) aggravated Mr. Schrum's asthma; while working at the Lime Plant Mr. Schrum had severe symptoms of asthmatic bronchitis and wheezing in his lungs; after he was off work for a while his lungs improved 95%; Dr. Lindsay released Plaintiff to work with the restriction of no work with exposure to toxic inhalants. 2. The MSDS for lime states inhalation will cause

breathing problems and aggravations of asthma; that a respirator or mask must be worn; BNSF's chief medical officer, Dr. Khuri, testified to his familiarity with MSDS and that the MSDS was an appropriate source for the type of mask needed when working around lime dust. 3. Frank Burg testified that it is generally accepted that inhaling dust causes respiratory illness; that the MSDS for lime requires a mask; that the injurious effects of inhaling dust are well-documented. 4. Mr. Schrum testified that inhaling coke, coal and lime dust at the Lime Plant made him sick and aggravated his asthma; and when he quit working there his asthma improved.

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5.

Dr.

Fernando,

Defendants'

expert,

reported

that

inhaling dust will aggravate asthma. Based on this testimony a jury reasonably might find that Mr. Schrum was injured by inhaling dust at the lime plant. Burden of Proof ­ Medical Causation ­ FELA This case is similar to Harbin v. BNSF, 921 F.2d 129 (7th Cir.1990). In Harbin the same Defendant as here required

Plaintiff to work in a dusty environment without a protective mask. Harbin suffered a heart attack and his doctor linked the heart attack to the dust inhalation. The Circuit Court reversed summary judgment for the railroad, holding: "It is well established that the quantum of evidence required to establish liability in an FELA case is much less than in an ordinary negligence action. ...It follows that a trial judge must submit an FELA case to the jury when there is even slight evidence of negligence. ...The right to a jury determination is part and parcel of the liberal remedy afforded the working person under the FELA. It is the province of the jury to weigh myriad factors, including the nature of the task and the hazards it entails, in determining whether employer fault played any role in the employee's injury. And a jury verdict can be set aside `only when there is a complete absence of probative facts to support the conclusion reached...'. ...Harbin has adduced ample evidence bearing upon the Railroad's negligence to raise a jury question. ...Impervious to repeated complaints of inadequate ventilation by Harbin and other employees, however, the Railroad took no action to rectify the problem. ...Based upon this evidence, a jury could reasonably conclude that the Railroad's failure to employ a different boiler cleaning method of take additional precautions to ensure the safety of its employees was negligent. Harbin need not identify the specific composition and density of soot present in his work environment to

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survive a summary judgment motion. While expert testimony documenting the hazards posed by the presence of so many parts per million of soot in the air would certainly enhance Harbin's case, it is not essential under the regime of the statute. We decline the Railroad's invitation to constrict the generous provisions of the statute by imposing upon FELA claimants the burden to produce such technical scientific evidence. A long line of FELA cases reiterate the lesson that the statute vests the jury with the broad discretion to engage in common sense inferences regarding issues of causation and fault. ...A jury is as qualified to infer a general risk of harm to employees forced to labor without ventilation in a sooty environment as it is to infer the possibility of injury from a rusty wire left lying about, or a stagnant pool of water, or the lifting of a heavy weight. (emphasis added) The issue of medical causation in FELA (and Jones Act) cases was discussed in Sentilles v. Inter-Caribbean Corp., 361 U.S. 107, 80 S.Ct. 173, 4 L.Ed.2d 142 (1959). The court in Cella v. Unites States, 998 F.2d 418 (7th Cir.1993) explained the U.S. Supreme Court holding in Sentilles: "...the Supreme Court discussed what is necessary to establish medical causation under the Jones Act. In Sentilles, the Court reviewed the case of a seaman seeking damages under the Jones Act. As a result of turbulence on the sea, the plaintiff was pitched into the air and fell back onto the deck. Shortly thereafter, the plaintiff became ill, was hospitalized, and was treated for tuberculosis. The plaintiff's theory was that the accident aboard the ship activated or aggravated a previously latent tubercular condition. Physical examinations and x-rays of the plaintiff taken two months before the accident revealed no appearance of tuberculosis. However, a tuberculosis specialist who re-examined these x-rays following the plaintiff's hospitalization concluded in retrospect that they did in fact reveal a pulmonary lesion. Questioned hypothetically regarding the effect of an accident like the plaintiff's on the aggravation

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of a pre-existing, dormant tubercular condition, the specialist opined that acute dissemination of the tuberculosis "might" result from the accident. Another specialist posited the trauma and plaintiff's preexisting diabetic condition as the most likely causes of the aggravation of the tuberculosis, though he was unable to state which of the two was more likely responsible. Another medical expert opined that the accident "probably aggravated" the plaintiff's condition, noting that "we don't ever select one item and say that is the cause of any particular aggravation." 361 U.S. at 109, 80 S.Ct. at 175. Based primarily on the temporal relationship between the accident and the onset of the tuberculosis, the jury found that the accident had legally caused the injury. The court of appeals reversed. In reversing the court of appeals to preserve the jury determination regarding medical causation, the Supreme Court noted that: The jury's power to draw the inference that the aggravation of petitioner's tubercular condition, evident so shortly after the accident, was in fact caused by that accident, was not impaired by the failure of any medical witness to testify that it was in fact the cause. Neither can it be impaired by the lack of medical unanimity as to the respective likelihood of the potential causes of the aggravation, or by the fact that other potential causes of the aggravation existed and were not conclusively negated by the proofs. 361 U.S. at 109, 80 S.Ct. at 175 (emphasis added). The Court emphasized that, in cases involving issues of medical causation, it is not the function of a court to search the record for conflicting circumstantial evidence which supports alternative theories of causation, but rather the focal point of judicial review in such cases is the `reasonableness of the particular inference or conclusion' drawn by the jury. 361 U.S. at 110, 80 S.Ct. at 176. Citing Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1975). [FN10] the Court held that the proofs justified the conclusion of the

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jury that the accident subsequent illness."

caused

plaintiff's

serious

The issue of medical causation here is controlled by Ulfik, Sentilles, sufficient Cella and Harbin. to There a are sufficient issue on facts and the

testimony

create

jury

whether

exposure to lime dust at the Lime Plant aggravated Schrum's asthma. WHEREFORE, Defendant's and Third-Party Defendant's Motions for Summary Judgment must be denied.

Respectfully submitted,

s/ George T. Brugess George T. Brugess One of the Plaintiff's Attorneys

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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