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 STATEMENT OF MATERIAL FACTS IN SUPPORT OF ITS RESPONSE TO BNSF'S MOTION FOR RECONSIDERATION

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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)

Third-Party Defendant Chemical Lime Company, by and through undersigned counsel, hereby submits its Statement of Material Facts in support of its Response to BNSF's Motion for Reconsideration pursuant to this Court's Order dated September 18, 2006.

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STATEMENT OF MATERIAL FACTS 1. 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: A: 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.

Q:

A: Q:

A: Q: A:

(See, Chemical Lime's Statement of Fact in Support of its Motion for Summary Judgment dated 1/17/06, previously produced as SOF § 5 - Exhibit B, Deposition Transcript of Steve Schrum dated August 11, 2005, pp. 223 ­ 224). 2. 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 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. * Case 2:04-cv-00619-RCB * * Filed 09/28/2006 Page 2 of 9

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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. Bronchitis chronic. Chronic bronchitis? Yes. Chronic asthma. Asthma is something you have had for a long time in your life; correct? Nothing like this. But you have, and you have received prescription medications for it; correct? Yes. Okay. What else? Chronic asthma. 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. * * *

A: Q: A: Q: A: Q: A: Q: A:

(See, Chemical Lime's Statement of Fact in Support of its Motion for Summary Judgment dated 1/17/06, previously produced as SOF § 4 - Exhibit B at pp. 63; 185186). 3. 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? 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?

A: Q:

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A: Q: A: Q: A:

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. * * *

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 Document 127-4 Filed 09/28/2006 Page 4 of 9

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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. * * *

(See, Chemical Lime's Statement of Fact in Support of its Motion for Summary Judgment dated 1/17/06, previously produced as SOF § 1 - Exhibit A, Deposition Transcript of Frank Burg dated November 2, 2005, at pp. 53, 55, 108, 122). 4. The level of exposure was inconsequential to Plaintiff's liability

expert, Frank Burg. 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? 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:

(See, Chemical Lime's Statement of Fact in Support of its Motion for Summary Judgment dated 1/17/06, previously produced as SOF § 2 - Exhibit A at pp. 116-117). 5. 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, Case 2:04-cv-00619-RCB Document 127-5 Filed 09/28/2006 Page 5 of 9

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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. * 8. * *

Upon written notice from Santa Fe, Industry agrees to assume the defense of any lawsuit, administrative action or other proceeding brought against Santa Fe by any public body, individual, partnership. . .relating to any matter covered by this Agreement for which Industry has an obligation to assume liability for and/or safe and hold harmless Santa Fe.

(Tender of Defense letter dated April 28, 2005 and 10/15/1991 Industry Track Agreement attached hereto as Exhibits A and B respectively). 6. 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) this agreement, including, environmental provisions, without limitation, its

any rights or interests granted pursuant to this Agreement,

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(iii) (iv)

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 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." * * *

(v) (vi)

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 C - Tender of Defense Letter dated April 14, 2005 and Exhibit D - Contract dated 6/12/2002). 7. BNSF tendered defense of this matter in correspondence dated

March 15, 2005, April 14, 2005, and April 28, 2005. (Exhibit B ­ letter dated 4/28/05; Exhibit C ­ letter dated 4/14/05; Exhibit E ­ letter dated 3/15/05). ... Case 2:04-cv-00619-RCB Document 127-7 Filed 09/28/2006 Page 7 of 9

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Dated this 28th day of September, 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

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CERTIFICATE OF SERVICE I hereby certify that on September 28, 2006, I electronically transmitted the attached document to the Clerk's office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: 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. Melissa Wilson Rawlinson Fennemore Craig 3003 North Central Avenue, Suite 2600 Phoenix, Arizona 85012-2913 Attorneys for BNSF Charles Hamilton Houston, III Thomas Thomas & Appel, PC 2700 North Central Avenue, Suite 800 Phoenix, AZ 85004 Attorneys for BNSF I hereby certify that on September 28, 2006, I served the attached document by facsimile and US mail on the following, who are not registered participants of the CM/EFC System: William D. Black, Esq. One East Camelback Road, Suite 630 Phoenix, Arizona 85012-1658 s/Janice Froechte

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