Free Response in Opposition 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 RESPONSE AND OPPOSITION TO DEFENDANT BNSF'S MOTION TO SRIKE UNTIMELY DISCLOSED EXPERT OPINION

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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.

(Assigned to the Honorable Robert C. Broomfield) (Oral argument requested)

Third-Party Defendant Chemical Lime Company ("Chemical Lime"), by and through undersigned counsel, hereby responds to and opposes BNSF's motion to strike Plaintiff's alleged untimely disclosed expert opinion for the simple reason that the underlying opinion (which formed the basis for the expert's statement) had already been

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disclosed. This Response is supported by the following Memorandum of Points and Authorities. STATEMENT OF THE CASE This is a FELA case commenced by plaintiff (employee) against his employer, BNSF Railroad. BNSF, in turn, filed a third-party claim against Chemical Lime seeking contractual indemnity. BNSF is correct that at deposition, Plaintiff's expert Frank Burg testified that BNSF's conduct was, at the minimum, done knowingly and willfully, and likely was so egregious that it was "criminal." The real importance of this testimony is not so much as to Plaintiff's damage claim against BNSF, but on BNSF's indemnity claim against Chemical Lime.1 As the Court will see, this characterization of BNSF's conduct clearly takes Plaintiff's claim outside the scope of any potential indemnity obligation owed by Chemical Lime. At the same time, the expert's statement was not an expansion of any new opinion, but rather simply a characterization of what had already been disclosed. For this reason, Chemical Lime contends that there is nothing to strike. ARGUMENT Under the contractual indemnity provision which BNSF seeks to enforce, Chemical Lime has no indemnity obligation where the claim arises "from the sole negligence" of BNSF. provides as follows: 4(a). Industry shall indemnify and hold harmless Santa Fe for any claim, loss, damage, expense or injury, including death, arising out of any act or omission of the Industry . . . pursuant to this Agreement, except where such claim, loss damage, expense, injury or death arises from the sole negligence of Santa Fe, its agents or employees. Specifically, the indemnity provision BNSF asserts applies

Chemical Lime has moved for summary judgment on BNSF's indemnity claim. (See Motion for Summary Judgment re Proof dated January 16, 2006).

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(Exhibit A ­ Industry Track Agreement dated 10/15/1991) (emphasis added). BNSF's concern is that Mr. Burg's testimony that BNSF acted knowingly and willingly (if not criminally) will preclude its indemnity claim. To assess whether Mr. Burg's statement really was the disclosure of a new opinion, it is important to put his testimony in context. At deposition, he made it clear that the claimed "negligence" in this case was not the fact that Plaintiff was exposed to some excessive or hazardous levels of lime or coal dust at the Chemical Lime plant. Plaintiff's expert freely admitted that he knew nothing about the extent of the exposures nor could he testify that the exposures caused Plaintiff's alleged medical conditions. In fact, the level of exposure was inconsequential to Plaintiff's liability expert who testified: Q: So that I'm clear: The triggering event simply for the obligation to go in and investigate is simply knowing that there is lime dust and/or coal dust at the facility? Yes, and in fact ­ Regardless of the level? It is just that it is present? Right. . . .the hazard communication requirements come into play for any potential exposure to a hazardous material. . . .

A: Q: A:

(Deposition of Frank Burg dated November 2, 2005 at pp. 116-117 attached hereto as Exhibit "B"). Rather, Plaintiff's expert testified that the claimed negligence was in BNSF's failure to: (1) investigate the conditions at the lime plant (regardless of the findings); and (2) failing to provide respiratory devices to Plaintiff. (Exhibit B at pp. 17, 49, 51, 52, 53, 55, 58, 59, 64, 65, 66, 70, 71, 81, 82, 83, 108, 109, 117, 120, and 121). Both of these opinions were disclosed in Mr. Burg's initial report wherein he disclosed, inter alia, the following opinions:

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BNSF violated OSHA, AGC, NEC, ANSE, as well as the custom and practices within the industries when they failed to implement, communicate, monitor, and enforce an effective safety program for hazard material operations. Such a program would have assured that proper medical surveillance and/or engineering controls and/or personal protective equipment would be utilized . . . * * *

BNSF violated OSHA when they failed to provide engineering, administrative controls, and/or personal protective equipment for Mr. Schrum. (Report of F. Burg dated December 12, 2004, attached as BNSF's Exhibit 1.) The only difference between what Mr. Burg testified at deposition was his

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"characterization" of these violations, none of which should have come as a surprise.
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Specifically, Burg testified that BNSF willfully allowed Plaintiff to be exposed to
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hazardous chemicals.
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Q:

Do you have any evidence one way or another whether BNSF is aware of the air quality of the Chemical Lime plant? Yes, they are aware of the materials at the lime plant in that they service the lime plant. Have you ever ­ Well, I think I know the answer to this question. You have never measured any conditions of the Chemical Lime Plant, correct? No. Did you ever do a site inspection? No. Why or why not? Because the blatant violation of the law is the fact that the BNSF didn't determine the level of exposure at the site. That's what their obligation is under the law and the custom and practice. They must determine what the levels are and take appropriate action. * * *

A: Q:

A: Q: A: Q: A:

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Q:

Do you have any evidence as you sit here today whether there has ever been a violation at the Chemical Lime Plant of any applicable standards? Well, there is absolute evidence of a violation of applicable standards at the lime plant in that the standards specifically requires employer ­ namely, the BNSF ­ to determine whether there is a hazard or not. That in itself is a very serious violation of the standards, the law, the customs and practices. . . . * * *

A:

Q:

In broad terms ­ I'm not trying to overlook anything, but it sounds like your opinions are really directed towards, No. 1, stating that there was an obligation by BNSF to determine if there was an exposure to some hazard or hazardous conditions? True. And that if it had done that investigation and reached the determination that there was some exposure, then to address that? True. * * *

A: Q:

A:

Q:

Let me see if I understand the reason why you suggested there was possibly some criminal responsibility here. It is because you believe BNSF knew that there was an exposure to lime dust and coal dust, that the employee reportedly complaints about it, and that there was no response in either removing him from the situation or giving him the personal protective equipment. Is that the basis of your saying that or is there more? Yes, that's ­ I would ­ From an OSHA standpoint, they knowingly and willfully allowed an exposure to toxic materials of one of their employees, and that's not acceptable. * * *

A:

(Exhibit B at pp. 53, 55, 108, 122) (emphasis added). Chemical Lime contends that this testimony does not change Mr. Burg's opinions at all. While BNSF may contend that this is a "characterization" of the Document -81 5 Filed 02/21/2006 Page 5 of 7

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evidence, he was simply commenting on the degree to which he viewed BNSF as having violated various claimed duties. Moreover, can there really be any dispute that BNSF "knowing and willingly" committed the acts that Burg criticized? Once again, Mr. Burg's criticism was that BNSF "failed to investigate" the conditions knowing that Plaintiff was exposed to dust at the lime plant. No one disputes that there is dust at the lime plant, nor does anyone dispute that BNSF knew that Plaintiff would potentially be exposed to the dust at this plant. Similarly, BNSF can certainly respond to any claim that it "knowing and willfully" failed to provide Plaintiff with a proper respirator. Either BNSF did offer and/or supply it or it did not. If it did, then it has a perfectly sound response to Mr. Burg's criticism. For all the foregoing reasons, Third-Party Defendant Chemical Lime respectfully requests that this Court enter an Order denying BNSF's motion to strike that portion of expert Burg's testimony. DATED this 21st day of February, 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 21st day of February, 2006, to: George T. Burgess, Esq. HOEY & FARINA, PC 542 South Dearborn, Suite 200 Chicago, Illinois 60605 Attorneys for Plaintiff

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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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