Free Motion for Summary Judgment - 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 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

THE BURLINGTON NORTHERN SANTA FE RAILWAY COMPANY, a corporation, Third-Party Plaintiff,

18

vs.
19 20 21

CHEMICAL LIME COMPANY OF ARIZONA, a corporation, ABC Corporations I-IV, fictitious corporations, Third-Party Defendant.

22 23 24 25 26

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, Third-Party Defendant Chemical Lime Company, by and through undersigned counsel, hereby moves this Court for an Order either dismissing Plaintiff's Complaint, or dismissing Defendant/Third-Party Plaintiff's Complaint in its entirety. This motion is supported by

Case 2:04-cv-00619-RCB

Document 68

Filed 01/17/2006

Page 1 of 7

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

the attached memorandum of points and authorities, the accompanying statement of material facts, and the entire court file in this matter. STATEMENT OF FACTS 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. undisputed. BNSF operates its trains on the Chemical Lime property. Chemical Lime processes lime. Coal is used as a part of this process. Coal and lime dust is generated during the processing of the lime and loading these materials onto the BNSF trains. Plaintiff ­ who had life-long pre-existing asthma and who failed to disclose this fact ­ claims that he suffered some undefined respiratory ailment as a result of his exposure to the coal and lime dust. (SOF ¶ 4). While Chemical Lime does not doubt that Plaintiff may have been exposed to some lime or coal dust, Plaintiff has never disclosed any evidence establishing that Plaintiff was exposed to levels in excess of that which is accepted by the Arizona Department of Environmental Quality (ADEQ) or OSHA, nor has Plaintiff's expert done any testing. (SOF ¶ 1). Moreover, the only "negligence" which Plaintiff's liability expert (Frank Berg) has identified is BNSF's alleged failure to investigate the potential exposure. (SOF ¶ 1). In his view, the mere fact that there was an exposure ­ regardless of whether it exceeded any acceptable levels or not ­ triggered an obligation by BNSF to investigate the exposure and remediate the condition, if necessary. (SOF ¶ 1 & 2). In addition, Plaintiff has not The essential facts relevant to this motion are

identified any medical expert who will testify that the alleged exposure was the proximate cause of plaintiff's injury. Based on these undisputed facts, Chemical Lime moves for summary judgment on three separate bases. Case 2:04-cv-00619-RCB Document -68 2 Filed 01/17/2006 Page 2 of 7

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

ARGUMENT A. Plaintiff's Claim Fails Because There Is Insufficient Evidence of Negligence. In a FELA case, Plaintiff has the burden of establishing some causal connection between defendant's negligence and their injuries. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); see also, Claar v. Burlington Northern Railroad Co., 29 F.3d 499, 503 (9th Cir. 1994). The test is whether the proof justifies with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury. Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493 (1957). To prevail on his claim, plaintiff must prove that his claimed respiratory disease, or asthma was caused by BNSF's negligence. If Plaintiff fails to establish a causal connection, there is no liability under the FELA. Moody v. Maine Central

Railroad Co., 823 F.2d 693, 694 (1st Cir. 1987) (city Celotex v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986)) (affirming summary judgment in FELA action where railroad employee failed to establish his angina attacks and general fatigue were causally connected to any action by the railroad). In this case, there is no evidence that Plaintiff was exposed to lime or coal dust in excess of allowable limits. Thus, the most that plaintiff can establish is that he was exposed to some dust. Certainly, being exposed simply to some coal or lime dust is not sufficient to establish liability. In fact, the level of exposure was inconsequential to Plaintiff's liability expert, Frank Burg. (SOF ¶ 2). According to Burg, the negligence by BNSF was it's failure to investigate the level of dust exposure. (SOF ¶ 1). Chemical Lime submits that proof of an exposure to lime or coal dust ­ without other evidence ­ does not make out a negligence claim, even under the FELA. // // Case 2:04-cv-00619-RCB Document -68 3 Filed 01/17/2006 Page 3 of 7

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

B.

Plaintiff's Claim Fails Because There Is No Expert Medical Testimony Establishing Causation Between Any Alleged Condition and the Dust Exposure. Plaintiff has had life-long asthma. Although Plaintiff denied this fact during

the deposition, this pre-existing condition is well documented. (SOF ¶ 3, 12, 13). That fact notwithstanding, Plaintiff claims that he suffers from various undefined respiratory ailments because of the alleged exposure. (SOF, ¶ 4). Throughout this case, Plaintiff has produced only one expert report which purported to establish a connection between the exposure and Plaintiff's symptoms. Specifically, Plaintiff identified expert Frank Burg initially as the witness who would testify that the exposure caused the symptoms. (SOF, ¶ 5.) In fact, expert Burg has now admitted that he has no opinion as to what medical conditions, if any, Plaintiff suffered due to this exposure. (SOF, ¶ 6). Mr. Burg admitted that he is not a medical doctor and is not qualified to offer any opinions proving causation between the exposure and any alleged symptom. Id. Inasmuch as Mr. Burg was Plaintiff's only previously identified causation expert, and Mr. Burg cannot now provide that testimony, Plaintiff's claim fails because he cannot establish causation. C. Chemical Lime Has No Indemnity Obligation to BNSF Because There Is No Negligence by Chemical Lime Which Is Implicated in this Case and, in Any Event, the Conduct Being Criticized Was Willful, Which Also Precludes Indemnity. BNSF has tendered its defense to Chemical Lime Company under the following two contracts: 1) Contract for Industry Track dated 10/15/1991 between Chemstar Lime Company and The Atchison, Topeka and Santa Fe Railway Company

Case 2:04-cv-00619-RCB

Document -68 4

Filed 01/17/2006

Page 4 of 7

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

("1991 contract")1 (SOF ¶ 7 & 8); and 2) Industry Track Agreement between Chemical Lime and BNSF entered into on 6/12/2002 ("2002 contract").2 The pertinent provisions of the 1991 contract specifically provide: 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 part, by property, equipment, fixtures or condition belonging to or under the control of Industry. (SOF ¶¶ 7 & 8) (emphasis added). The indemnity obligation is not triggered for two reasons. First, Plaintiff has not alleged any negligence by Chemical Lime which would trigger the indemnity obligation in the first instance "arising out of any act or omission of the Industry" for "any incident caused, wholly or in part, by property. . .condition belonging to or under the control of Industry." True, Plaintiff claims that he was exposed to lime and/or coal dust at this plant. However, that exposure alone is not what is claimed to have been

negligent. The negligence alleged ­ and testified to by Plaintiff's liability expert ­ was

The 1991 contract is governed by Arizona law. (SOF ¶ 8). The 1991 contract would control in this case over the 2002 contract as the date Plaintiff claims he was sick from coal and lime dust was in the weeks before February 2002, which is prior to the date the 6/12/2002 contract was executed. (SOF ¶ 14 and 15). The 2002 contract is controlled by Texas law (SOF ¶ 10).
2

1

Case 2:04-cv-00619-RCB

Document -68 5

Filed 01/17/2006

Page 5 of 7

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

the failure by BNSF to investigate the exposure in the first instance. (SOF ¶ 1 & 2). In fact, Plaintiff's expert admitted that he did no investigation into levels of exposure in this case. Id. In his view, once there was any level of exposure ­ even one below

permissible exposure limits ­ BNSF was required to investigate, ascertain whether there was a potential hazard, and provide safety equipment. Id. The indemnity provision in the 1991 contract requires ­ at a minimum ­ that there be at least some negligence committed by Chemical Lime. This is supported by the clear language excluding the "sole negligence" of BNSF. (SOF ¶ 7). Here, however, there is no negligence even alleged. Thus, even if Plaintiff were to prevail, it would prevail not because of any negligence by Chemical Lime, but only because of the sole negligence of BNSF, which is specifically excluded under the indemnity provision in the 1991 contract. Even if the 2002 contract were held to apply to this case, the indemnity provision is not applicable for the same reasons above, including the fact that damages would be due to BNSF's willful misconduct, which are specifically excepted in the 2002 contract where BNSF has acted willfully, "to the extent proximately caused by the gross negligence or willful misconduct of an indemnitee. (SOF ¶ 9 at p. 4). Regardless of

which contract BNSF looks to for indemnity, implicit in both the 1991 and 2002 contract is the requirement for some negligence on the part of the Industry. Plaintiff's liability expert specifically testified that the only conduct being criticized was BNSF's failure to investigate, even though BNSF was admittedly aware of the exposure. (SOF ¶ 1 & 2.) In fact, Plaintiff's expert characterized BNSF's conduct as much more than negligence, gross negligence, or even willful misconduct. Rather, he opined that it was criminal misconduct. (SOF ¶ 11.) // // Case 2:04-cv-00619-RCB Document -68 6 Filed 01/17/2006 Page 6 of 7

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

CONCLUSION For all the foregoing reasons, Third-Party Defendant Chemical Lime Company respectfully requests that this Court enter an Order either dismissing Plaintiff's Complaint in its entirety or dismissing Defendant's Third-Party Complaint against Chemical Lime in its entirety. 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 -68 7

Filed 01/17/2006

Page 7 of 7