Free Statement - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14

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 STATEMENT OF MATERIAL FACTS 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)

15 16 17 18 19 20 21 22 23 24 25 26

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, by and through undersigned counsel, hereby submits its Statement of Material Facts 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. Case 2:04-cv-00619-RCB Document 69 Filed 01/17/2006 Page 1 of 10

1 2 3 4 5 6 7 8 9 10 11 12

STATEMENT OF MATERIAL FACTS

1.

The only "negligence" which Plaintiff's expert has identified is the

alleged negligence of BNSF in failing to investigate the potential exposure. Specifically Frank Burg testified:

Q: Do you have any evidence one way or another whether BNSF is aware of the air quality of the Chemical Lime plant? A: Yes, they are aware of the materials at the lime plant in that they service the lime plant. Q: 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? A: No.

13 14 15 16 17 18 19 20 21 22 23 24 25 26

Q: Did you ever do a site inspection? A: No. Q: Why or why not? A: 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. *** 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? A: 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. . . . Case 2:04-cv-00619-RCB Document 69 - Filed 01/17/2006 -2 Page 2 of 10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18

*** 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? A: True. Q: And that if it had done that investigation and reached the determination that there was some exposure, then to address that? A: True. *** 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? A: 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. ***

19 20 21 22 23 24 25 26

(Exhibit A, Deposition Transcript of Frank Burg dated November 2, 2005, at pp. 53, 55, 108, 122). 2. expert, Frank Burg. The level of exposure was inconsequential to Plaintiff's liability Specifically, he 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? A: Yes, and in fact ­

Case 2:04-cv-00619-RCB

Document 69 - Filed 01/17/2006 -3

Page 3 of 10

1 2 3 4 5 6

Q: Regardless of the level? It is just that it is present? A: Right. . . .the hazard communication requirements come into play for any potential exposure to a hazardous material. . . . (Exhibit A at pp. 116-117). 3. Plaintiff denied the fact that he has had life-long asthma during the

deposition, but this pre-existing condition is well documented. Specifically he testified: Q: How about one, two, three sentences down, it says, "He denies any history of childhood asthma"? I didn't experience any asthma until I was like I said approximately 16 years old. If he had asked me did I have experience with asthma as a small child, I would have said no. Let me show you the next exhibit. . .this is a note from Richard Riedy, M.D., referring physician Dr. Lindsay, dictation date April 7, 2003; correct? Yes. Okay. First sentence of the second paragraph under present illness, it says, "He has a history of asthma as a child." Did you tell Dr. Riedy that you did have a history of asthma as a child? I don't believe that I told Dr. Riedy that I had a history of asthma as a child. . . So you think Dr. Riedy is wrong? I think what he wrote down is incorrect.

7 8 9 10 11 12 13 14

A:

Q:

A: Q:

15 16 17 18 19 20 21 22 23 24 25 26

A:

Q: A:

(Exhibit B, Deposition Transcript of Steve Schrum dated August 11, 2005, pp. 223 ­ 224). 4. Plaintiff claims that he suffers from various undefined respiratory

ailments because of the alleged exposure. Specifically he testified: A: My claims are arising from becoming sick from or believing to be sick from the coal dust and lime dust when I become sick in Case 2:04-cv-00619-RCB Document 69 - Filed 01/17/2006 -4 Page 4 of 10

1 2 3 4 5 6 7

2002. That's what I am stating. In 2002, I became very sick, and may the weeks before February I had been experiencing bronchitis and different things, and it led me to believe it was coming from the being at the lime plant. *** Q: Why don't you describe for me the symptoms that you do claim damages for in this case. Is it fair to say ­ well, you go ahead and give me your list. A: Bronchitis chronic. Q: Chronic bronchitis?

8 9 10 11

A: Yes. Chronic asthma. Q: Asthma is something you have had for a long time in your life; correct? A: Nothing like this.

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Q: But you have, and you have received prescription medications for it; correct? A: Yes. Q: Okay. What else? Chronic asthma. A: That's the ­ that's the injuries as far as I know. I am not a doctor. I went to the doctor to be treated, and that's what they have told me. *** (Exhibit B at pp. 63; 185-186). 5. The only expert report produced by Plaintiff is a report by Frank

Burg. (Exhibit C ­ Report of Frank Burg). 6. Plaintiff's expert Frank Burg testified that he has no opinion as to

what medical conditions, if any, Plaintiff suffered. Specifically he testified: Q: . . .What specific medical problems in plaintiff do you believe were caused by the alleged exposures?

Case 2:04-cv-00619-RCB

Document 69 - Filed 01/17/2006 -5

Page 5 of 10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

A: I am not a doctor of the plaintiff. I can tell you in general what happens. Q: I want to know ­ Right now my question, Mr. Burg, relates to the Plaintiff. A: Well, I can't answer that question. I will have to talk to his doctor. *** Q: . . .First, it is correction that you are not going to be offering any opinions to the effect that any of Mr. Schrum`s medical conditions ­ whatever those might be, however he might describe them ­ are, in fact, related to the specific exposures at the Chemical Lime plant? A: That's true. That's a medical opinion. I would have to rely on a doctor for that. *** (Exhibit A at pp. 76-77; 107). 7. BNSF tendered its defense to Chemical Lime under an Industry Contained within that contract is an

Track Agreement dated October 15, 1991. indemnity provision which 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, its employees or agents to the person or property of the parties hereto and their employees, and to the person or property of any other public body, individual, partnership, corporation, or other legal entity while on our about The Track or while exercising any right or performing any obligation, 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. 4(b). Regardless of any negligence of Santa Fe, Industry shall indemnify and hold harmless Santa Fe from any liability or claimed liability arising under the Federal Employees Liability Act (45 U.S.C. §51, et. seq.) for any incident caused, wholly or in party, by property, equipment, fixtures or condition belonging to or under the control of Industry.

Case 2:04-cv-00619-RCB

Document 69 - Filed 01/17/2006 -6

Page 6 of 10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

(Exhibit G, Tender of Defense letter dated April 14, 2005 and 10/15/1991 Industry Track Agreement). 8. The Industry Track Agreement dated 10/15/1991 is governed by

the laws of Arizona. Specifically, the agreement provides: All questions arising under this Agreement shall be decided according to the laws of the State in which The Track is located. (Exhibit G, at p. 7). 9. BNSF tendered its defense to Chemical Lime under a contract dated June 12, 2002, setting forth various rights duties and obligations. Contained within that contract is an indemnity provision which provides as follows: *** 10(a). To the fullest extent permitted by law, industry shall release, indemnify, defend and hold harmless railroad and railroad's affiliated companies, partners, successors, assigns, legal representatives, officers, directors, shareholders, employees and agents (collectively "indemnities") for, from and against any and all claims, liabilities, fines, penalties, costs, damages, losses, liens, causes of action, suits, demands, judgments and expenses (including, without limitation, court costs, attorneys' fees and costs of investigation, removal and remediation and governmental oversight costs), environmental or otherwise (collectively "liabilities") of any nature, kind or description of any person or entity directly or indirectly arising out of, resulting from or related to (in whole or in part): (i) (ii) (iii) this agreement, including, without limitation, its environmental provisions, any rights or interests granted pursuant to this Agreement, industry's occupation and use of railroad's property or the use of any operation by railroad upon industry's property, the environmental condition and status of the track or railroad's property caused or aggravated by, or contributed to, in whole or in part, by industry, the environmental condition and status of industry's plant, or Document 69 - Filed 01/17/2006 -7 Page 7 of 10

(iv)

(v)
26

Case 2:04-cv-00619-RCB

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

(vi)

any act or omission of industry or industry's officers, agents, invitees, employees, or contractors, or anyone directly or indirectly employed by any of them, or anyone they control or exercise control over, even if such liabilities arise from or are attributed to, in whole or in part, any negligence of any indemnitee. The only liabilities with respect to which industry's obligation to indemnify the indemnities does not apply are liabilities to the extent proximately caused by the gross negligence or willful misconduct of indemnitee."

*** 10(c). Industry further agrees, regardless of any negligence or alleged negligence of any indemnitee, to indemnify, and hold harmless the indemnitees against and assume the defense of any liabilities asserted against or suffered by any indemnitee under or related to the Federal Employers' Liability Act ("FELA") whenever employees of industry or any of its agents, invitees, contractors claim or allege that they are employees of any indemnitee or otherwise. This indemnity shall also extend, on the same basis, to FELA claims based on actual or alleged violations of any federal, state or local laws or regulations, including but not limited to the Safety Appliance Act, the Boiler Inspection Act, the Occupational Health and Safety Act, the Resource Conservation and Recovery Act, and any similar state or federal statute. ... (Exhibit D, Tender of Defense Letter dated April 14, 2005 and Contract dated 6/12/2002). 10. The Industry Track Agreement dated 6/12/2002 is governed by

Texas law. Specifically, the contract provides: 20. All questions concerning the interpretation or application of provisions of this Agreement shall be decided according to the laws of the State of Texas. (Exhibit D at p. 9). 11. Plaintiff's expert Frank Burg characterized BNSF's conduct as much more than negligence, gross negligence, or even willful misconduct, specifically he testified as follows:

Case 2:04-cv-00619-RCB

Document 69 - Filed 01/17/2006 -8

Page 8 of 10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Q: Is there anything that needs to be added to your report as of this moment? *** A: Aside from that, I don't know. I talked ­ The one thing I did talk to the attorney about this morning is my belief that this case against the railroad should be referred to the district attorney for criminal prosecution. And if I had a chance to do it over, I think I would have wrote an opinion and gotten on the record that. Q: And what is that opinion that you just articulated today that is not included in your report based on? A: Well, you know, I was an OSHA compliance officer, federal officer, for almost 18 years and so I saw a lot of violations. And I had been doing this for almost ­ I think almost 18 years and so I saw a lot of violations. And I had been doing this for almost ­ I think over 35 years. So I had been around the block, as they say, a lot of times. And I can't remember a case where there was such a blatant disregard of the health and safety of a worker as in this case. It is ­ It is horrifying. (Exhibit A at pp. 14-16). 12. Dr. Riedy noted on April 23, 2003 that Plaintiff has a "history of asthma as a child. He also has a history of seasonal allergies." (Exhibit E ­ Pulmonary

Outpatient Consultation dated April 23, 2003). 13. Dr. Hagstrom from the Mayo Clinic noted Plaintiff has a "past medical history significant for asthma, smoking, hypertension, rheumatic fever as a child. . . ." (Exhibit F ­ Clinical Notes Report ­ Mayo Clinic ­ by Dr. Hagstrom). 14. Plaintiff testified: A. My claims arising from becoming sick from or believing to be sick from the coal dust and lime dust when I become sick in 2002. That's what I am stating. In 2002, I became very sick, and maybe the weeks before February I had been experiencing bronchitis and different things, and it led me to believe it was coming from being at the lime plant.

(Exhibit B at pp. 63-64).

Case 2:04-cv-00619-RCB

Document 69 - Filed 01/17/2006 -9

Page 9 of 10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

15. Plaintiff was first diagnosed or treated for his claims on 2/2/2002. (Exhibit H Employee Personal Injury/Occupational Illness Report dated 3/12/03). Dated this 17th day of January, 2006. SCHNEIDER & ONOFRY, P.C. By /s/ 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 17th day of January, 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/

Case 2:04-cv-00619-RCB

Document 69 - Filed 01/17/2006 - 10

Page 10 of 10