Free Reply to Response to Motion - District Court of Arizona - Arizona

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Charles D. Onofry ­ 012837 ReNae A. Nachman ­ 022614 SCHNEIDER & ONOFRY, P.C. 3101 North Central Avenue Suite 600 Phoenix, Arizona 85012-2658 Telephone: (602) 200-1280 Fax: (602) 230-8985 E-mail: [email protected] Attorneys for Third-Party Defendant Chemical Lime Company of Arizona IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA STEVEN SCHRUM, Plaintiff, vs. THE BURLINGTON NORTHERN SANTA FE RAILWAY COMPANY, a corporation, Defendant. No. CIV04-619-PHX-RCB THIRD-PARTY DEFENDANT CHEMICAL LIME'S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT RE: (1) NO PROOF OF NEGLIGENCE; (2) NO PROOF OF PROXIMATE CAUSATION; AND (3) NO FACTS TRIGGERING ANY INDEMNITY OBLIGATION (Assigned to the Honorable Robert C. Broomfield) (Oral argument requested)

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THE BURLINGTON NORTHERN SANTA FE RAILWAY COMPANY, a corporation, Third-Party Plaintiff, vs. CHEMICAL LIME COMPANY OF ARIZONA, a corporation, ABC Corporations I-IV, fictitious corporations, Third-Party Defendant.

Third-Party Defendant Chemical Lime Company ("Chemical Lime"), by and through undersigned counsel, hereby submits its Reply in Support of its Motion for Summary Judgment Re: (1) No proof of negligence; (2) No proof of causation; and (3)

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no facts triggering any indemnity obligation. In reply, Chemical Lime incorporates the arguments set forth in its Response to BNSF's Motion for Summary Judgment on Indemnity Claim and the following: In Chemical Lime's initial motion, Chemical Lime pointed out that BNSF could not enforce the indemnity provision contained in the 1991 contract because that contract was between Chemstar Lime Company and The Atchison, Topeka and Santa Fe Railway Company ("Atchison, Topeka Railway") and not Chemical Lime and BNSF. In response, BNSF entirely fails to address this issue. Hence, the initial question

confronting this court is whether BNSF can seek to enforce this indemnity provision. Even if the contract were enforceable, BNSF's claim for indemnity fails for the lack of evidence of an "incident caused" by Chemical Lime required under the indemnity language of the contract. There is no evidence that Plaintiff's claims were an "incident caused" by Chemical Lime, and as Plaintiff's expert has testified, the only negligence was that of BNSF for the failure to investigate Plaintiff's exposure to a potential hazard. Without proof of causation, both Plaintiff's and BNSF's claims fail and should be dismissed with prejudice. This Response is supported by the following Memorandum of Points and Authorities. MEMORANDUM OF POINTS AND AUTHORITIES A. Plaintiff's Claims. Plaintiff has requested more time to respond to the motion to obtain the deposition of doctors Lindsay and Khuri. Although Plaintiff has not yet filed his

response, the Court should know that there was nothing within those depositions that changed this claim. If and when Plaintiff files a substantive response, Chemical Lime would like the opportunity to respond as it will argue, among other things that the Case 2:04-cv-00619-RCB Document -94 2 Filed 03/15/2006 Page 2 of 6

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doctors' testimony fails to satisfy Daubert admissibility requirements for expert witness causation testimony. To the give the Court simply a sample, Dr. Lindsay, who is the very expert Plaintiff (untimely) designated as his causation expert, testified: 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? I'm not an 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'm 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 he worked, it seemed to exacerbate his asthmatic condition. * Q: * *

A:

As far as you know, no doctor to whom Mr. Schrum was referred, did any testing or assessment as to whether he had an adverse reaction to any level of exposure to lime dust or coal dust; is that correct? That's correct. And including yourself, you didn't make any independent assessment along those lines; is that correct? No, I don't. I may make assumptions, but I didn't make. . . * * *

A: Q: A:

A:

I don't feel, without doing specific studies on Mr. Schrum at the site, on the way to the site, and as moved onto the site, the irritants at the site, that I can say that yes this caused the problem. * * *

Q:

All right. Is there any way in your mind to separate out which symptoms would be ­ that he reported would be due to one or more of the allergies that he had as opposed to an exposure of some level of lime dust or coal dust? It would be almost impossible.

A:

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(Deposition of Dr. Lindsay taken 2/24/06, at pp. 25, 34, 35, 40, 41 and 42 attached as Exhibit "A"). BNSF also agrees that Plaintiff cannot prove negligence or causation

between the alleged injuries and the exposure to coal and lime dust. Based on the lack of evidence of causation, Plaintiff's claims should be dismissed. B. BNSF's Indemnity Claim. There are two contracts that were alleged to apply in this case ­ a 1991 and a 2002 contract. (Chemical Lime SOF at ¶ 7 and 9). BNSF has admitted it is not asserting that the 2002 contract applies and is relying on the 1991 Contract for its indemnity claim. (BNSF Response at p. 6). The 1991 contract does not apply as there is no evidence it is binding on Chemical Lime Company. The 1991 contract was signed by different entities ­

Chemstar Lime Company and The Atchison, Topeka, Santa Fe Railway Company ("Atchison, Topeka Railway") ­ than the parties to this action. In order for the contract to be binding on successors in interest of Chemstar Lime Company, the contract requires the written consent by the Atchison, Santa Fe Railway. (SOF ¶ 7 at Article III, paragraph 6). There is no evidence of a written consent by the Atchison, Topeka

Railway produced in this case. Even if there were a written consent and assignment, there are two requirements to trigger the indemnity provision. First, the claim must arise under FELA. Second, the incident must be caused by a condition at Chemical Lime. BNSF's

fundamental position is that it is entitled to indemnity because Plaintiff's claims "arise out of" conditions at Chemical Lime. This argument is flawed because there is no "arising out of" language in the indemnity contract. Paragraph 4(b) of the contract indemnifies for "any liability or claimed liability for any incident caused, wholly or in part, by property, equipment, fixtures or Case 2:04-cv-00619-RCB Document -94 4 Filed 03/15/2006 Page 4 of 6

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conditions belonging to or under the control of Chemstar [Chemical Lime]." (Chemical Lime SOF at ¶ 7). Thus, the indemnity provision is not triggered because there is no evidence that there is an "incident caused" by " Chemical Lime. (Exhibit A). Since Plaintiff cannot prove causation, and BNSF agrees there is no causation, there is no indemnity obligation. Even if the 1991 contract applies, the indemnity provision again is not triggered because the claimed negligence by plaintiff is not that there is some impermissible exposure level, but ­ as Plaintiff's expert stated ­ because BNSF did not investigate into the conditions and provide equipment. (Chemical Lime SOF ¶ 1, 2, 6 and 11). While those may be FELA claims, those are not part of our responsibility. Thus, it is the actions/conduct of BNSF that are being called negligent and not our plant or its conditions. CONCLUSION Incorporating the argument set forth in Chemical Lime's Response to BNSF's Motion for Summary Judgment Re: Indemnity, and for the foregoing reasons, Chemical Lime respectfully requests this Court grant Chemical Lime's motion for summary judgment and enter an order that: 1) Plaintiff's claims must be dismissed for lack of evidence proving negligence and causation; 2) BNSF is not entitled to indemnity under the provisions of paragraph 4(b) of the 1991 Contract for Industry Track; 3) 4) The 2002 Industry Track Agreement does not apply to this case; That the Third-Party Complaint is dismissed against Chemical Lime.

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DATED this 15th day of March, 2006. SCHNEIDER & ONOFRY, P.C.

By

/s Charles D. Onofry Charles D. Onofry ReNae A. Nachman 3101 North Central Avenue, Suite 600 Phoenix, Arizona 85012-2658 Attorneys for Third-Party Defendant Chemical Lime Company of Arizona

COPY of the foregoing e-served on this 15th day of March, 2006, to: George T. Burgess, Esq. HOEY & FARINA, PC 542 South Dearborn, Suite 200 Chicago, Illinois 60605 Attorneys for Plaintiff William L. Thorpe, Esq. Sal J. Rivera, Esq. FENNEMORE CRAIG 3003 North Central Avenue, Suite 2600 Phoenix, Arizona 85012-2913 Attorneys for BNSF By /s Janice Froechte

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