Free Objection - District Court of Arizona - Arizona

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FENNEMORE CRAIG, P.C. William L. Thorpe (No. 005641) Sal J. Rivera (No. 016728) Melissa W. Rawlinson (No. 021285) 3003 North Central Avenue Suite 2600 Phoenix, Arizona 85012-2913 Telephone: (602) 916-5000 [email protected] [email protected] [email protected] Attorneys for BNSF

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Steven Schrum, Plaintiff, v. The Burlington Northern Santa Fe Railway Company, Defendant. No. CIV04-619-PHX-RCB BNSF' S: (1) OBJECTIONS TO PLAINTIFF' S PURPORTED STATEMENT OF MATERIAL FACTS; (2) MOTION TO STRIKE SPECIFIC PARAGRAPHS IN PLAINTIFF' S STATEMENT OF MATERIAL FACTS IN SUPPORT OF PLAINTIFF' RESPONSE S TO BNSF' MOTION FOR SUMMARY S JUDGMENT ON PLAINTIFF' CLAIMS; S AND (3) SUPPLEMENTAL STATEMENT OF FACTS IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF' CLAIMS S (Oral Argument Requested)

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The Burlington Northern Santa Fe Railway Company, a corporation, Third Party Plaintiff, v. Chemical Lime Company of Arizona, a corporation; ABC Corporations I-IV, fictitious corporations, Third Party Defendants.

Pursuant to Rule 56.1, Local Rules of the United States District Court for the District of Arizona, BNSF Railway Company ("BNSF") submits its Objections to Plaintiff' Statement of Material Facts ("PSOF") and Supplemental Statement of Facts in s

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support of BNSF' motion for summary judgment. s I. General Objections As an initial matter, BNSF objects to the characterization of the 107 paragraphs in plaintiff' statement as being "material facts." Instead, plaintiff' statement of facts s s includes statements that are not in any way material to the lack of causation evidence issues presented in BNSF' motion. See, e.g., PSOF, ¶¶ 3, 4, 5, 7, 13, 14, 18, 25, 26, 34, s 51, 53, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 76, 77, 79. The majority of plaintiff' statements are also conclusory, unsubstantiated s allegations. See, e.g., PSOF, ¶ ¶ 9, 14, 17, 18, 20, 23, 31, 32, 33, 36, 37, 38, 39, 42, 44, 47, 52, 56, 57, 58, 60, 90, 93, 95, 104. A conclusory statement is one that is not supported by summary judgment evidence, other than the plaintiff' or a witness' own subjective s s beliefs. See S & W Enterprises, L.L.C. v. Southtrust Bank of Alabama, 180 F. Supp. 2d 811 (N.D. Tex. 2001). Conclusory and unsubstantiated statements are insufficient to defeat BNSF' motion for summary judgment. See, e.g., Lucas Automotive Eng' Inc. v. s g Bridgestone/Firestone, Inc., 140 F.3d 1228 (9th Cir. 1998)(conclusory allegations unsupported by factual data are insufficient to defeat a motion for summary judgment); Mitchel v. General Electric Co., 689 F.2d 877 (9th Cir. 1982)(plaintiff' unsubstantiated s and conclusory allegations in opposition to employer' motion for summary judgment s were insufficient to oppose employer' showing). s Plaintiff' statement of facts also mischaracterizes the cited testimony, which s results in misleading and inaccurate factual statements. See, e.g., PSOF, ¶ ¶ 3, 5, 6, 8, 9, 10, 12, 14, 26, 31, 39, 41, 44, 51, 55, 56, 61, 81, 82, 85, 87, 91, 92, 93. Obviously, plaintiff cannot rely on misstatements and mischaracterizations of fact as evidence to preclude summary judgment. Plaintiff also offers a number of paragraphs as facts even though the witness lacks foundation to testify on the subject. See, e.g., PSOF, ¶ ¶ 31, 32, 35, 37, 39, 44, 47, 52, 56,
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57, 60, 94-96, 100-103. This evidence is inadmissible, and plaintiff cannot rely on it in an effort to preclude summary judgment. II. 1. Specific Objections to Plaintiff' Statement of Material Fact s BNSF objects to this paragraph on the grounds that it misstates plaintiff' s

testimony. For example, plaintiff testified that he could not be sure the number of days he spent per month at the plant. (Plaintiff' Deposition at 74:16-23; 82:25-25, attached as s Exhibit A.) 2. 3. No objection. BNSF objects to this paragraph on the grounds it is misleading and

mischaracterizes plaintiff' deposition testimony. BNSF also objects to this paragraph s because it is an improper narrative and summary of plaintiff' deposition testimony. s (Exhibit A at 87:6-88:6.) BNSF objects to this paragraph on the grounds that it is not relevant. 4. BNSF objects to this paragraph on the grounds that plaintiff' deposition s

testimony speaks for itself. BNSF also objects to this paragraph because it is an improper narrative and summary of plaintiff' deposition testimony. In addition, the last sentence s of paragraph 4 is not supported by the citation given. BNSF objects to this paragraph on the grounds that it is not relevant. 5. BNSF objects to this paragraph on the grounds that it misstates and/or

mischaracterizes plaintiff' deposition testimony. BNSF also objects to this paragraph s because it is an improper narrative and summary of plaintiff' deposition testimony." s (Exhibit A at 88:7-13.) BNSF objects to this paragraph on the grounds that it is not relevant. 6. BNSF objects to this paragraph on the grounds that it misstates and/or

mischaracterizes plaintiff' deposition testimony. BNSF also objects to this paragraph s because it is an improper narrative and summary of plaintiff' deposition testimony. s
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BNSF objects to this paragraph on the grounds that it is not relevant. 7. 8. No objection. BNSF objects to paragraph on the grounds that it misstates and/or

mischaracterizes the testimony. BNSF also objects to this paragraph because it is an improper narrative and summary of plaintiff' deposition testimony. s paragraph is not supported by the citation to page 254. 9. BNSF objects to this paragraph on the grounds that it is contradicted by Moreover, the

plaintiff' own paragraph 7. s 10. BNSF objects to this paragraph on the grounds that it is a summary of

plaintiff' deposition testimony and not proper evidence pursuant to Rule 56.1, Fed. R. s Civ. P. 11. 12. See response to paragraph 10. BNSF objects to this paragraph on the grounds that it misstates and/or

mischaracterizes plaintiff' deposition testimony. Specifically, plaintiff testified that he s did not believe that the railroad provided him a safe place to work. (Exhibit A at 126.) Plaintiff omitted this important aspect of the deposition testimony. BNSF also objects to this paragraph on the grounds that, as written, the first sentence purports to offer a legal conclusion and because given the issues involved in this case, plaintiff is not qualified or competent to offer such testimony. BNSF also objects to this paragraph because it is an improper narrative and summary of plaintiff' deposition testimony. s 13. BNSF objects to this paragraph on the grounds that it misstates and/or

mischaracterizes plaintiff' deposition testimony. BNSF also objects to this paragraph s because it is an improper narrative and summary of plaintiff' deposition testimony. s BNSF also objects to this paragraph on the grounds that it is not relevant. 14. BNSF objects to this paragraph on the grounds that plaintiff does not

accurately set forth the testimony on this topic. BNSF also objects to this paragraph
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because it is an improper narrative and summary of plaintiff' deposition testimony. s Plaintiff testified that BNSF contacted Chemical Lime and asked them to water down the Plant. (Exhibit A at 136:13-16.) Plaintiff also omitted the portion of plaintiff' testimony s wherein he stated that when the Plant was not watered down, plaintiff would point it out to his supervisor who would ask Chemical Lime to water it down. (Id. at 136:13-138:5.) BNSF also objects to this paragraph on the grounds that it is not relevant. 15. BNSF objects to this paragraph on the grounds that it misstates and/or

mischaracterizes plaintiff' deposition testimony. For example, plaintiff did not use the s word "catastrophic." Indeed, this paragraph is a summary of plaintiff' deposition s testimony, which is not proper evidence pursuant to Rule 56.1, Fed. R. Civ. P. 16. BNSF admits that plaintiff exchanged emails with Jared Wooten but objects

to plaintiff' characterization and summary of the email messages. The emails attached as s Exhibit 4 to PSOF speak for themselves. 17. BNSF objects to this paragraph on the grounds that it misstates and/or

mischaracterizes plaintiff' deposition testimony. BNSF also objects to this paragraph s because it is an improper narrative and summary of plaintiff' deposition testimony. s Plaintiff also testified that the Chemical Lime workers did not wear respirators "all of the time when they were out there." testimony. (Exhibit A at 166:8-13.) 18. BNSF objects to this paragraph on the grounds there is no foundation for the Finally, plaintiff lacks foundation to offer such

documents attached at Exhibits 1 and 2 to PSOF. Indeed, there is no testimony from either Moulder or Webb regarding the origin of these documents. BNSF also objects to this paragraph because it refers to inadmissible hearsay. BNSF also objects to plaintiff' s characterization of the documents. BNSF also objects to this paragraph on the grounds that it is not relevant. 19.
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No objection.

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20.

BNSF objects to this paragraph on the grounds that plaintiff is not a medical BNSF also objects to this

doctor and is not qualified to make medical diagnoses.

paragraph on the grounds that the paragraph is not supported by the citation. BNSF also objects to this paragraph on the grounds it contains nothing but conclusory, unsubstantiated allegations. 21. BNSF objects to this paragraph on the grounds that it is not supported by the

cited testimony. BNSF also objects to this paragraph because it is an improper narrative and summary of plaintiff' deposition testimony. s 22. 23. No objection. BNSF objects to this paragraph on the grounds that it mischaracterizes the

letter. The letter speaks for itself. The letter actually provides, "According to medical information currently available, you are currently unable to work with Burlington Northern Santa Fe Railway due to your condition. I need additional objective medical information before I can make a determination about your inability to work as switchman." 24. BNSF objects to this paragraph on the grounds that Exhibit 6 speaks for

itself. BNSF also objects to this paragraph to the extent that it suggests that plaintiff has "current" work restrictions. BNSF also objects to this paragraph because it is an improper narrative and summary of plaintiff' deposition testimony. s 25. BNSF objects to this paragraph on the grounds that it misstates and/or Plaintiff testified that based on his observation, it

mischaracterizes the testimony.

appeared that this was the process for loading the lime cars. (Exhibit A at 251:6-10.) BNSF also objects to this paragraph on the grounds that it is not relevant. BNSF also objects to this paragraph because it is an improper narrative and summary of plaintiff' s deposition testimony. 26.
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BNSF objects to this paragraph on the grounds that it misstates and/or

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mischaracterizes plaintiff' deposition testimony. This paragraph suggests that the cars s were overfilled all of the time, which is not the testimony. Moreover, plaintiff omitted the testimony that Chemical Lime' employees cleaned up the lime that had spilled onto the s ground when he asked them to do so. BNSF also objects to this paragraph because it is an improper narrative and summary of plaintiff' deposition testimony. (Exhibit A at 252:7s 12.) BNSF also objects to this paragraph on the grounds that it is not relevant. 27. BNSF objects to this paragraph on the grounds that it misstates and/or

mischaracterizes plaintiff' deposition testimony. Plaintiff claims he was exposed to these s materials but plaintiff has not provided any evidence that he was exposed to hazardous levels of these materials. BNSF also objects to this paragraph because it is an improper narrative and summary of plaintiff' deposition testimony. s 28. BNSF admits that plaintiff testified that he believes his problems are due to

coal and lime dust but disputes plaintiff' allegations that he had not been having s problems prior to working there. Such an allegation ignores plaintiff' well-documented s history of asthma and hay fever. (See e.g., Lindsay Deposition, attached as Exhibit B at 37.) BNSF also objects to this paragraph because plaintiff is not a medical doctor and lacks foundation and qualifications to offer such testimony. 29. BNSF objects to this paragraph to the extent it suggests that plaintiff did not

have a history of asthma and hay fever. (Exhibit B at 37.) 30. BNSF objects to this paragraph on the grounds that it is not all supported by

citations to the record. Moreover, the last portion of this paragraph is nothing more than an irrelevant, conclusory and inadmissible legal opinion by Frank Burg. 31. BNSF objects to this paragraph to the extent that plaintiff is claiming that this Burg lacks the

is anything more than Burg' unsupported and uninformed opinion. s

foundation to offer any opinions concerning the conditions at the Plant and/or violations of BNSF policies in this case. Burg admitted that he has not visited the Plant and did not
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review BNSF' policies and procedures in connection with this case. Accordingly, BNSF s objects to this paragraph on the grounds that it is nothing more than a conclusory, unsubstantiated allegation. 32. BNSF objects to this paragraph because Burg lacks the foundation to offer

any opinions concerning the conditions at the Plant and/or violations of BNSF policies in this case. Burg admitted that he has not visited the Plant and did not review BNSF' s policies and procedures in connection with this case. (Burg Deposition, attached as Exhibit C at 49:1-4; 53:11-15.) BNSF also objects to this paragraph on the grounds that it is nothing more than a conclusory, unsubstantiated allegation. BNSF also objects to this paragraph because it is an improper narrative and summary of deposition testimony. 33. BNSF also objects to this paragraph on the grounds that it is nothing more Moreover, Burg' opinion regarding s

than a conclusory, unsubstantiated allegation.

criminal neglect was never disclosed and is an improper legal conclusion. Burg lacks foundation to assert such an opinion on the grounds that he admittedly has no evidence that BNSF failed to inspect the air quality at the plant. (Exhibit C at 52:5-53:3.) Burg also has no evidence that BNSF was not aware of conditions at the plant other than s Schrum' assertion that he was never offered a respirator. (Id.) Accordingly, Burg' s opinion is based on hearsay. 34. BNSF objects to this paragraph on the grounds it has no relevance to the

present motion. 35. BNSF objects to this paragraph on the grounds that it is nothing more than a Neither Plaintiff nor Burg has provided a

conclusory, unsubstantiated allegation.

foundation for the assertions contained in this paragraph. BNSF also objects to this paragraph because it is an improper narrative and summary of deposition testimony. 36. BNSF objects to this paragraph on the grounds that the witness lacks the

foundation to assert such an opinion. Mr. Burg admitted that he did not review BNSF' s
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policies and procedures in this case. (Exhibit C at 49:1-4.) Accordingly, he cannot testify as to whether BNSF violated any of its policies and procedures. BNSF also objects to this paragraph because it is an improper narrative and summary of deposition testimony. 37. BNSF objects to this paragraph on the ground that Burg lacks the foundation

to testify on this point as he admittedly has not even visited the Plant or conducted any testing on the level of dust present at the Plant. (Exhibit C at 53:11-15.) BNSF also objects to this paragraph because it is an improper narrative and summary of deposition testimony. 38. See objection to paragraph 37. BNSF also objects to this paragraph to the

extent that it contradicts other allegations in plaintiff' statement of facts. s 39. 40. 41. 42. See objection to paragraph 37. See objection to paragraph 37. See objection to paragraph 37. BNSF objects to this paragraph on the grounds that the witness lacks the

foundation to assert such an opinion. Mr. Burg admitted that he did not review BNSF' s policies and procedures in this case. (Exhibit C at 49:1-4.) 43. BNSF objects to this paragraph to the extent it misstates or mischaracterizes This paragraph is nothing more than a

Burg' testimony, which speaks for itself. s

summary of Burg' testimony, which is improper evidence under Rule 56.1, Fed. R. Civ. s P. 44. BNSF objects to this paragraph on the grounds that Burg lacks foundation to

testify as to the conditions at the Plant. (See objections to paragraphs 37-42.) BNSF also objects to this paragraph on the grounds that Burg's purported opinions are based on hearsay. BNSF also objects to this paragraph because it is an improper narrative and summary of deposition testimony. 45.
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BNSF objects to this paragraph to the extent it misstates or mischaracterizes

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Burg' testimony, which speaks for itself. s

This paragraph is nothing more than a

summary of Burg' testimony, which is improper evidence under Rule 56.1, Fed. R. Civ. s P. BNSF also objects to the paragraph to the extent that it is an improper legal

conclusion. 46. BNSF objects to the misleading nature of this paragraph. Burg actually

testified that he does not even know what level of chemicals the plaintiff was exposed to. (Exhibit C at 63:16-18.) Accordingly, Burg cannot testify as to any alleged violations. BNSF also objects to this paragraph on the grounds that Burg's purported opinions are based on hearsay. 47. BNSF objects to this paragraph on the grounds that the witness lacks

foundation to testify on this topic. Burg admitted that he did not review BNSF' policies s and procedures in this case. (Exhibit C at 49:1-4.) Accordingly, Burg lacks the

foundation to testify as to whether the policy was violated in this case. 48. BNSF objects to this paragraph on the grounds that Burg is not qualified to

give medical testimony or opinions. Burg admitted that he is not a medical doctor and has no medical training. As he testified, it is the job of a medical doctor to "connect[] a particular condition or symptom with the exposure to the environment." (SOF, ¶ 13) BNSF also objects to this paragraph because it is an improper narrative and summary of deposition testimony. 49. BNSF objects to this paragraph on the grounds that the witness lacks

foundation to testify on this topic. Among other things, Burg admitted that he did not review BNSF' policies and procedures in this case. (Exhibit C at 49:1-4.) Accordingly, s Burg lacks the foundation to testify as to whether the policy was violated in this case. 50. 51. No objection. BNSF objects to this paragraph on the grounds that it misstates and

mischaracterizes Burg' deposition testimony. Moreover, there is no foundation for this s
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testimony and the paragraph has no relevance to the instant motion. BNSF also objects to this paragraph because it is an improper narrative and summary of deposition testimony. 52. BNSF objects to this paragraph on the ground that Burg lacks the foundation

to testify on this point as he admittedly has not even visited the Plant or conducted any testing on the level of dust present at the Plant. (Exhibit C at 53:11-15.) BNSF also objects to this paragraph to the extent it misstates or mischaracterizes Burg' testimony, s which speaks for itself. This paragraph is nothing more than a summary of Burg' s testimony, which is improper evidence under Rule 56.1, Fed. R. Civ. P. 53. BNSF objects to this paragraph on the grounds that this paragraph is not

relevant to the instant motion. 54. BNSF objects to this paragraph on the grounds that it contains a legal

conclusion, not a fact. BNSF also objects to the paragraph to the extent that Burg does not have foundation to testify regarding this topic because he admitted that he does not know what BNSF provided to plaintiff. 55. BNSF objects to this paragraph on the grounds that Burg is not qualified to

give medical testimony or opinions. Burg testified that he was not a medical doctor and has no medical training. As he testified, it is the job of a medical doctor to "connect[] a particular condition or symptom with the exposure to the environment." (SOF, ¶ 13). BNSF also objects to this paragraph on the grounds that it misstates Burg' testimony. s Burg' testimony speaks for itself. s 56. BNSF objects to this paragraph on the grounds that it misstates Burg' s

testimony. Burg' testimony speaks for itself. BNSF also objects to this paragraph on the s grounds that it is nothing more than a conclusory, unsubstantiated allegation. BNSF also objects to this paragraph on the grounds that Burg' purported opinions are based on s hearsay and Burg lacks foundation to offer such testimony. 57.
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BNSF objects to this paragraph on the grounds that it misstates Burg' s

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testimony. Burg' testimony speaks for itself. Moreover, BNSF objects to this paragraph s on the grounds that Burg never visited the site and has no personal knowledge that Chemical Lime workers wore respirators. Accordingly, he lacks the foundation to testify on this issue. 58. BNSF objects to this paragraph on the grounds that Burg lacks foundation to

testify on this issue. Moreover, BNSF objects to this paragraph on the grounds that it misstates Burg' deposition. Burg' testimony speaks for itself. s s 59. BNSF objects to this paragraph on the grounds that it is nothing more than a

conclusory, unsubstantiated allegation. 60. BNSF objects to this paragraph on the grounds that Burg lacks foundation to

testify on this subject. (See objections to paragraphs 37-42.) BNSF also objects to this paragraph because it is an improper narrative and summary of deposition testimony. 61. BNSF objects to this paragraph on the grounds that it misstates Burg' s

testimony. Burg' testimony speaks for itself. BNSF also objects to this paragraph on the s grounds that Frank Burg is not a medical doctor. Accordingly, he lacks the foundation to testify regarding the effect of allergen exposure on the human body. 62. motion. 63. motion. 64. 65. 66. BNSF objects to this paragraph on the grounds that it is not relevant. BNSF objects to this paragraph on the grounds that it is not relevant. BNSF objects to this paragraph on the grounds that it misstates or Dr. Khuri' testimony speaks for itself. s BNSF objects to this paragraph on the grounds that it is not relevant to this BNSF objects to this paragraph on the grounds that it is not relevant to this

mischaracterizes Dr. Khuri' testimony. s

Moreover, Dr. Khuri' testimony does not support this paragraph. Dr. Khuri only testified s that the box was checked off but did not testify that Schrum actually did it. (Khuri
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deposition, attached as Exhibit D at 16:7-10.) BNSF also objects to this paragraph on the grounds that it is not relevant here. 67. BNSF objects to this paragraph on the grounds that it is not relevant to the

instant motion. BNSF also objects to this paragraph on the grounds that it misstates Dr. Khuri' testimony. Dr. Khuri did not testify that he "needed" a chest x-ray; rather, he s testified that he wanted to further evaluate plaintiff' pulmonary system. (Exhibit D at 18: s 3-7.) BNSF also objects to this paragraph on the grounds it is not relevant here. BNSF also objects to this paragraph because it is an improper narrative and summary of deposition testimony. 68. BNSF objects to this paragraph on the grounds that it is not relevant to the

instant motion. BNSF also objects to this paragraph because it is an improper narrative and summary of deposition testimony. 69. BNSF objects to this paragraph on the grounds that it is not relevant to the

instant motion. BNSF also objects to this paragraph because it is an improper narrative and summary of deposition testimony. 70. BNSF objects to this paragraph on the grounds that it is not relevant to the

instant motion. BNSF also objects to this paragraph because it is an improper narrative and summary of deposition testimony. BNSF also objects to the paragraph because it is misleading to the extent that it suggests that plaintiff did not have a preexisting asthma condition and wheezing symptoms. 71. BNSF objects to this paragraph on the grounds that it is not relevant to the

instant motion. 72. BNSF objects to this paragraph on the grounds that it misstates or

mischaracterizes Dr. Khuri' testimony. Dr. Khuri' testimony speaks for itself. BNSF s s also objects to this paragraph on the grounds that it is not relevant to this motion. 73.
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BNSF objects to this paragraph on the grounds that Dr. Khuri does not have

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foundation for this testimony as it relates to the issues involved in this case. 74. BNSF objects to this paragraph on the grounds that Dr. Khuri does not have

foundation for this testimony as it relates to the issues involved in this case. 75. BNSF objects to this paragraph on the grounds that Dr. Khuri does not have

foundation for this testimony as it relates to the issues involved in this case. 76. BNSF objects to this paragraph on the grounds that it is not relevant to the

instant motion. 77. BNSF objects to this paragraph on the grounds that it misstates or

mischaracterizes Dr. Khuri' testimony. Dr. Khuri' testimony speaks for itself. BNSF s s also objects to this paragraph on the grounds that it is not relevant to the instant motion. BNSF also objects to this interrogatory on the grounds that it suggests that the MSDS is evidence of causation. 78. BNSF objects to this paragraph on the grounds that it misstates or

mischaracterizes Dr. Khuri' testimony. Dr. Khuri' testimony speaks for itself. BNSF s s also objects to this paragraph on the grounds that Dr. Khuri lacked foundation to testify as to this issue, as he admitted that he had never visited or inspected the Plant and was not aware if anyone from BNSF had done so. 79. BNSF objects to this paragraph on the grounds that it misstates or

mischaracterizes Dr. Khuri' testimony. Dr. Khuri' testimony speaks for itself. This s s paragraph is a summary of Dr. Khuri' testimony, which is not proper under Rule 56.1, s Fed. R. Civ. P. BNSF also objects to this paragraph on the grounds that it is not relevant to the instant motion. 80. 81. No objection. BNSF objects to this paragraph on the grounds that it misstates or

mischaracterizes Dr. Lindsay' testimony. Dr. Lindsay' testimony speaks for itself. Dr. s s Lindsay testified that he first saw plaintiff on February 11, 2002 because he was
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complaining of coughing some, hard time breathing, congested in the morning. (Exhibit B at 7:3-6.) BNSF also objects to this paragraph because it is an improper narrative and summary of deposition testimony. 82. BNSF objects to this paragraph on the grounds that it misstates or

mischaracterizes Dr. Lindsay' testimony. Dr. Lindsay' testimony speaks for itself. Dr. s s Lindsay testified, "His diagnosis on -- after evaluation and ­ we started treatment or asthma or bronchitis or asthmatic bronchitis and sinusitis and rhinitis." (Exhibit B at 7:13-15.) 83. 84. BNSF admits that Dr. Lindsay provided this definition of asthma. BNSF objects to this paragraph on the grounds that it is misleading and

misstates Dr. Lindsay' testimony. Dr. Lindsay actually testified that the appointment s was a follow-up on plaintiff' breathing problems and that he also complained of s dizziness. Dr. Lindsay did not testify that he was seeing plaintiff "again" for all of these complaints. 85. BNSF objects to this paragraph on the grounds that it misstates or

mischaracterizes Dr. Lindsay' testimony. For example, it is not clear from Dr. Lindsay' s s testimony on what date he referred plaintiff to a specialist. Dr. Lindsay' testimony s speaks for itself. This paragraph is plaintiff' summary of Dr. Lindsay' testimony, which s s is not proper evidence under Rule 56.1, Fed. R. Civ. P. 86. BNSF admits that Dr. Lindsay referred plaintiff to Dr. Reidy but objects to

plaintiff' summary of Dr. Lindsay' testimony. BNSF also objects to this paragraph s s because it is an improper narrative and summary of deposition testimony. 87. BNSF objects to this paragraph on the grounds that Dr. Reidy' report speaks s

for itself. BNSF also objects to this paragraph to the extent that it attempts to characterize this inadmissible hearsay as causation evidence. 88.
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BNSF objects to this paragraph on the grounds that it is unclear to what

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"that" at the beginning of the paragraph refers to. Moreover, BNSF also objects to this paragraph on the grounds that it is plaintiff' summary of Dr. Lindsay' testimony, which s s is not proper evidence under Rule 56.1, Fed. R. Civ. P. 89. BNSF objects to this paragraph on the grounds that it does not accurately set

forth Dr. Lindsay' testimony. BNSF also objects to this paragraph on the grounds that it s is not relevant. 90. BNSF objects to this paragraph on the grounds that it is misleading and

unclear. Plaintiff, not Dr. Lindsay, believed his asthma was becoming chronic. BNSF also objects to this paragraph on the grounds that plaintiff is not a medical doctor and cannot testify as to whether his condition is chronic. BNSF also objects to this paragraph to the extent that it suggests that plaintiff' allegedly chronic asthma was caused by s exposures at the Chemical Lime Plant. 91. BNSF objects to this paragraph on the grounds that it misstates or

mischaracterizes Dr. Lindsay' testimony. Dr. Lindsay' testimony speaks for itself. Dr. s s Lindsay actually testified that he was not familiar with Linda Martellaro or with the document. (Exhibit B at pg. 13.) 92. BNSF objects to this paragraph on the grounds that it misstates or

mischaracterizes Dr. Lindsay' testimony. Dr. Lindsay' testimony speaks for itself. s s BNSF also objects to this paragraph on the grounds that it is misleading. Plaintiff' s summary of Dr. Lindsay' testimony results in a confusing paragraph that does not fully s and accurately depict Dr. Lindsay' testimony. When asked why he referred plaintiff to a s cardiologist, Dr. Lindsay responded, "[plaintiff' shortness of breath was not improving. s] His wheezing and reactive airways that he' had hadn' improved. He was having more s t labored breathing, and my consideration was let' make sure that there is not a cardiac s involvement." (Exhibit B at pg. 15.) 93.
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misstates and mischaracterizes the testimony. Dr. Saadeh' records in no way illustrate s that it was Dr. Saadeh' opinion that plaintiff' alleged injuries were caused by the alleged s s exposure. Dr. Lindsay specifically testified at deposition that he could not testify as to what specifically caused plaintiff' injuries and that there could have been other causes for s the alleged injuries. 94. BNSF objects to this paragraph on the grounds that it misstates or

mischaracterizes Dr. Lindsay' testimony. Dr. Lindsay' testimony speaks for itself. Dr. s s Lindsay testified that his lungs "seemed somewhat improved." (Exhibit B at 18:6.) Dr. Lindsay further testified that "there may have been a relationship to this I can' speculate t on." (Exhibit B at 18:24-25.) BNSF also objects to this paragraph on the grounds that Dr. Lindsay lacks foundation to testify as to what caused plaintiff' symptoms. Dr. Lindsay s admitted that he was not an expert in the area and was not an occupational medicine specialist. (Exhibit B at 25:7-13.) Dr. Lindsay also testified that he never visited the Plant and never conducted investigations on the type and level of exposure. (Exhibit B at 39-40.) 95. BNSF objects to this paragraph on the grounds that it misstates or

mischaracterizes Dr. Lindsay' testimony. BNSF also objects to this testimony on the s grounds that it is speculative. When asked whether he had a medical opinion about whether exposure to lime and coal dust aggravated plaintiff' asthma, Dr. Lindsay stated s that he was "not an expert in this area." (Exhibit B at 25:7-8.) Although Dr. Lindsay stated that work seemed to exacerbate plaintiff' asthmatic condition, Dr. Lindsay again s reiterated that he was not an expert in the area. He specifically testified, "I' not an m occupational medicine specialist in this day and age, and I have not inspected the plant nor his working environment." (Id. at 25:11-13.) Dr. Lindsay also testified that he never visited the Plant and never conducted investigations on the type and level of exposure. (Exhibit B at 39-40.) Accordingly, Dr. Lindsay lacks foundation to testify in this area.
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96. 97.

See response to paragraph 95. BNSF also objects to this paragraph because it is an improper narrative and

summary of deposition testimony. 98. BNSF objects to this paragraph on the grounds that it misstates or

mischaracterizes Dr. Lindsay' testimony. Dr. Lindsay' testimony speaks for itself. s s Moreover, BNSF also objects to this testimony on the grounds that it is speculative. When asked whether he had a medical opinion about whether exposure to lime and coal dust aggravated plaintiff' asthma, Dr. Lindsay stated that he was "not an expert in this s area." (Exhibit B at 25:7-8.) Although Dr. Lindsay stated that plaintiff' subjective s complaints suggested that work seemed to exacerbate plaintiff' asthmatic condition, Dr. s Lindsay again reiterated that he was not an expert in the area. He specifically testified, "I' not an occupational medicine specialist in this day and age, and I have not inspected m the plant nor his working environment." (Id. at 25:11-13.) Dr. Lindsay also testified that he never visited the Plant and never conducted investigations on the type and level of exposure. (Exhibit B at 39-40.) Accordingly, Dr. Lindsay lacks foundation to testify in this area. 99. BNSF objects to this paragraph because it is an improper narrative and

summary of deposition testimony. 100. BNSF objects to this paragraph on the grounds that it does not accurately set

forth the entirety of the cited deposition transcript. Specifically, plaintiff omitted the various objections from other counsel to the questions presented. The actual quotation reads as follows: 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' asthma? s Mr. Rivera: Form, foundation. Mr. Onofry: Join.
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The Witness: I' not an expert in this area. There was m obviously something that he was in contact with that during the period of time aggravated his asthmatic bronchitis condition. I' not an occupational medicine specialist in this m day and age, and I have not inspected the plant nor his working environment. However, during the time that he worked, it seemed to exacerbate his asthmatic condition. Q: Okay. And then when he was off work, his asthmatic condition improved? A: Appeared to, yes.

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Mr. Rivera: Form, foundation. 25 The witness: Yes. 26
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(Exhibit B at 25:1-18; omitted portions bolded and italicized.) BNSF also objects on the grounds that Dr. Lindsay lacks foundation to testify on this subject. When asked whether he had a medical opinion about whether exposure to lime and coal dust aggravated plaintiff' asthma, Dr. Lindsay stated that he was "not an expert in this area." (Exhibit B s at 25:7-8.) Although Dr. Lindsay stated that work seemed to exacerbate plaintiff' s

asthmatic condition, Dr. Lindsay again reiterated that he was not an expert in the area. He specifically testified, "I' not an occupational medicine specialist in this day and age, and m I have not inspected the plant nor his working environment." (Id. at 25:11-13.) Dr. Lindsay also testified that he never visited the Plant and never conducted investigations on the type and level of exposure. (Exhibit B at 39-40.) 101. BNSF objects to this paragraph on the grounds that it does not accurately set

forth the entirety of the cited deposition transcript. Specifically, plaintiff omitted the various objections from other counsel to the questions presented. The actual quotation reads as follows: Q: Do you have an opinion with a reasonable degree of medical certainty whether Mr. Schrum' time off of work in s 2003 was caused in whole or in part by the aggravation of his asthma?

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Mr. Onofry: Objection. Q And what' the opinion; the opinion is that it was? s

A: My opinion: If something was aggravating it during that period of time. (Exhibit B at 26:1-11; omitted portions bolded and italicized.) BNSF also objects on the grounds that Dr. Lindsay lacks foundation to testify on this subject. When asked whether he had a medical opinion about whether exposure to lime and coal dust aggravated plaintiff' asthma, Dr. Lindsay stated that he was "not an expert in this area." (Exhibit B s at 25:7-8.) Although Dr. Lindsay stated that work seemed to exacerbate plaintiff' s

asthmatic condition, Dr. Lindsay again reiterated that he was not an expert in the area. He specifically testified, "I' not an occupational medicine specialist in this day and age, and m I have not inspected the plant nor his working environment." (Id. at 25:11-13.) Dr. Lindsay also testified that he never visited the Plant and never conducted investigations on the type and level of exposure. (Exhibit B at 39-40.) Dr. Lindsay also conceded that other irritants could have caused plaintiff' complaints and symptoms. s 102. BNSF objects to this paragraph on the grounds that it does not accurately set

forth the entirety of the cited deposition transcript. Specifically, plaintiff omitted the various objections from other counsel to the questions presented. The actual quotation reads as follows: Q: Doctor, what is your recommendation for Mr. Schrum as far as continued exposure to things like any toxic inhalant, including things like lime or coal dust? Mr. Onofry: Objection, form. Mr. Rivera: Form. Go ahead. I' sorry, Counsel. Did you finish your m question? I' sorry for talking over you. If you are done, m object to the form and foundation. Q: Do you remember the question?
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A: Yes. My opinion is: If he cannot be desensitized and then if any toxin aggravates him, he should stay away from that type of occupation or pleasure environment. (Exhibit B at 26-27, omitted portions bolded and italicized.) BNSF also objects on the grounds that Dr. Lindsay lacks foundation to testify on this subject. When asked whether he had a medical opinion about whether exposure to lime and coal dust aggravated plaintiff' asthma, Dr. Lindsay stated that he was "not an expert in this area." (Exhibit B s at 25:7-8.) Although Dr. Lindsay stated that work seemed to exacerbate plaintiff' s

asthmatic condition, Dr. Lindsay again reiterated that he was not an expert in the area. He specifically testified, "I' not an occupational medicine specialist in this day and age, and m I have not inspected the plant nor his working environment." (Id. at 25:11-13.) Dr. Lindsay also testified that he never visited the Plant and never conducted investigations on the type and level of exposure. (Exhibit B at 39-40.) 103. BNSF objects to this paragraph on the grounds that it does not accurately set

forth the entirety of the cited deposition transcript. Specifically, plaintiff omitted the various objections from opposing counsel to the questions presented. quotation reads as follows: Q: And why? What effects could exposures to toxic inhalants have in the future on Mr. Schrum in relation to his asthma? Mr. Onofry: Objection, form. The actual

19 Mr. Rivera: Join. 20 Q: If any. 21 22 23 24 25 26
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A: Again, it' s seemingly understood by most pulmonologists and which we get from lectures and literatures, that chronic asthmatic bronchitis not treated properly can result in emphysematous changes, which can be very life threatening over a period of time. (Exhibit B at 27:3-14; omitted portions bolded and italicized.) BNSF also objects on the grounds that Dr. Lindsay lacks foundation to testify on this subject. When asked whether
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he had a medical opinion about whether exposure to lime and coal dust aggravated plaintiff' asthma, Dr. Lindsay stated that he was "not an expert in this area." (Exhibit B s at 25:7-8.) Although Dr. Lindsay stated that work seemed to exacerbate plaintiff' s

asthmatic condition, Dr. Lindsay again reiterated that he was not an expert in the area. He specifically testified, "I' not an occupational medicine specialist in this day and age, and m I have not inspected the plant nor his working environment." (Id. at 25:11-13.) Dr. Lindsay also testified that he never visited the Plant and never conducted investigations on the type and level of exposure. (Exhibit B at 39-40.) 104. BNSF objects to this paragraph on the grounds that it misstates Dr. Lindsay' s

testimony. Dr. Lindsay' testimony speaks for itself. BNSF also objects to this paragraph s because it is an improper narrative and summary of deposition testimony. 105. BNSF objects to plaintiff' characterization of the document at issue. The s

document speaks for itself. 106. BNSF objects to plaintiff' characterization of the MSDS. The document s

speaks for itself. 107. BNSF admits that Dr. Fernando conducted an IME on plaintiff. BNSF

affirmatively asserts that Dr. Fernando' report speaks for itself. Moreover, plaintiff' s s paragraph is misleading and omits important portions of Dr. Fernando' report. The s entirety of the portion purportedly quoted by plaintiff provides: In summary, Mr. Steve Schrum does have allergic rhinitis and asthma. His asthma has worsened over the last few years. He has seen three pulmonologists and they all believe he has asthma. Unfortunately, no one has really taught Mr. Schrum about asthma. He has not been empowered to optimally treat his asthma. He should be following peak flow meter values and he must be using inhaled steroids in the nose and chest regularly. At this point he does not have occupation induced asthma. He does have asthma that is worsened with certain exposures including certain kinds of inhalant or dust. He does not have reactive airways dysfunction syndrome, nor irritant induced
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asthma. The last two entities are sudden onset airways disease processes that are related to environmental exposure. Steven does have again asthma that his [sic] chronic and apparently life long. He also has seasonal, if not perennial allergic rhinitis. Asthma is a disease that may progress or improve in any given individual. It does appear that his severity and frequency of asthma has worsened in the last few years. It is possible that dust of any type may precipitate and worsen his asthma. Unfortunately he has not received adequate treatment and it is unclear if he can continue to work in his same environment. Ideally, he should avoid any type of gas or irritant exposure. (Dr. Fernando' report, attached as Exhibit E; omitted portions bolded and italicized.) s III. BNSF' Motion to Strike S Defendant BNSF Railway Company moves the Court for an order striking plaintiff' paragraphs 13-15, 18, 20, 23, 31-34, 36-41, 44, 46-49, 52, 53, 55-58, 61, 93, s 94-96, 98, 100-103, and 107 of Plaintiff' Statements of Material Fact. BNSF also s incorporates by reference its previous objections to plaintiff' statement of facts. BNSF s also joins in Chemical Lime' Motion to Strike, filed with the Court on April 7, 2006. s BNSF moves to strike the following paragraphs for the reasons stated below. Paragraphs 13-15, 25-26: These paragraphs should be stricken on the grounds that they are irrelevant, and therefore, inadmissible. These paragraphs are not related to the issue presented by BNSF' motion for summary judgment. For this reason, the Court s should strike these paragraphs. Paragraph 18: Paragraph 18 is based on hearsay and cites to documents for Plaintiff did not create the documents

which plaintiff has provided no foundation.

attached to paragraph 18 and did not provide testimony from the individuals that created the documents to verify their authenticity. For this reason, the Court should strike

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paragraph 18. Paragraph 20: Plaintiff cites to his own testimony as support for this

particular paragraph. The paragraph, however, contains medical conclusions. Plaintiff is not a medical doctor and, thus, lacks the foundation to make such conclusions. For this reason, this paragraph should be stricken. Paragraph 23: This paragraph is misleading and mischaracterizes the exhibit

attached. For this reason, the Court should strike paragraph 23. Paragraph 33: Paragraph 33 includes a reference to Mr. Burg' undisclosed s

expert opinion that is currently the subject of BNSF' Motion to Strike Untimely s Disclosed Expert Opinion. Because Burg' opinion regarding criminal neglect was never s disclosed (as fully set forth in BNSF' Motion to Strike Untimely Disclosed Expert s Opinion), the Court should strike this paragraph. Paragraphs 34, 53: These paragraphs have no relevance to the instant motion and the Court should strike them. Paragraphs 31, 32, 33, 36, 37, 38, 39, 40, 41, 44, 46, 47, 49, 52, 56: Burg lacks foundation to testify on these items on the grounds that he never visited the Plant and never conducted inspections at the Plant. He has no evidence relative to the actual environment or conditions at the Plant. He also failed to review BNSF' policies and s procedures in this case. Accordingly, he has no foundation to testify as to violations arising out of conditions at the Plant, and these paragraphs should be stricken. Paragraphs 48, 55, 61: These paragraphs purport to offer medical testimony

from Frank Burg. Burg is not a medical doctor and has no medical training. Therefore, he lacks the foundation to offer medical testimony. For this reason, paragraphs 48, 55, 61 must be stricken. Paragraphs 57, 58: Paragraphs 57 and 58 are based on hearsay and are not admissible. Burg never visited the Plant and cannot offer testimony regarding whether the
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workers there wore respiratory protection. His opinion on this topic is based on hearsay. For these reasons, these paragraphs should be stricken. Paragraph 93: Paragraph 93 is misleading and mischaracterizes the

deposition testimony cited therein. Dr. Saadeh did not make any conclusions regarding the cause of plaintiff' alleged injury. There is no evidence to support such an allegation. s For this reason, paragraph 93 should be stricken. Paragraphs 94-96, 98, 100-103: When asked whether he had a medical opinion about whether exposure to lime and coal dust aggravated plaintiff' asthma, Dr. Lindsay s stated that he was not an expert in the area of occupational medicine. Dr. Lindsay also testified that he never visited the Plant and never conducted investigations on the type and level of exposure at the Chemical Lime plant. Dr. Lindsay lacks foundation to testify regarding the cause of plaintiff' injuries. s stricken. Paragraph 107: This paragraph should be stricken, as it does not fully and Accordingly, these paragraphs should be

accurately set forth Dr. Fernando' actual report. Plaintiff omits relevant and important s sections of Dr. Fernando' report. For this reason, the Court should strike this paragraph. s In conclusion, plaintiff' statement of material facts is improper and contains a s number of inadmissible facts. For this reason, the Court should grant BNSF' request to s strike the specific paragraphs set forth herein. IV. BNSF' Supplemental Statement of Facts S For its Supplemental Statement of Facts in support of BNSF' Motion for s Summary Judgment on Plaintiff' Claims, BNSF alleges as follows: s 1. 2. Dr. Lindsay was plaintiff' family doctor. (Exhibit B at 6:10-12.) s Dr. Lindsay testified that plaintiff had a history of asthma and hay fever.

(Exhibit B at 37:1-8) 3.
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specifically caused plaintiff' injuries and that there could have been other causes for the s alleged injuries. (Exhibit B at 42:15-20; 40:16-41:2.) 4. Dr. Lindsay testified that additional testing would be necessary to pinpoint

the cause of plaintiff' alleged injuries. (Exhibit B at 40:23-41:2.) s 5. Dr. Lindsay referred plaintiff to a cardiologist, a pulmonologist, and an

allergist. (Exhibit B at 14-15; 9-12; and 32-34.) 6. When asked whether he had a medical opinion about whether exposure to

lime and coal dust aggravated plaintiff' asthma, Dr. Lindsay stated that he was "not an s expert in this area." (Exhibit B at 25.) 7. Dr. Lindsay testified, "I' not an occupational medicine specialist in this m

day and age, and I have not inspected the plant nor his working environment." (Id.) 8. Dr. Lindsay only offered speculative testimony that "something" that

Schrum was in contact with during that period of time aggravated his condition. Dr. Lindsay could not pinpoint what that "something" was, and Dr. Lindsay testified that other allergies could have caused plaintiff' symptoms. (Exhibit B at 34.) s 9. When asked if there was any way to separate out which symptoms would be

due to one or more allergies or due to exposure of some level to lime dust or coal dust, Dr. Lindsay responded that it would be almost impossible. (Exhibit B at 42:15-20.) 10. Dr. Lindsay testified that he has not visited the Chemical Lime plant and has

not conducted any investigations into the type of dust generated at the Plant. (Exhibit B at 39:18-23.) 11. Dr. Lindsay has no knowledge regarding the type or level of exposure

plaintiff experienced at the Plant and has no knowledge or opinion concerning the level of permissible exposures to lime and/or coal dust. (Exhibit B at 39:24-40:6) 12. Plaintiff' own purported expert, Frank Burg, has never visited the Plant or s

conducted testing at the Plant. (Exhibit C at 53:11-15.)
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13.

Dr. Khuri, BNSF' former chief medical officer, admitted that he is not able s

to offer testimony on causation in this case. Q: Doctor, do you have an opinion whether exposure to lime dust could or might aggravate Mr. Schrum' asthma? s Mr. Rivera: Object to the form, foundation, improper opinion, and inadequate disclosure. This is not an opinion witness. He' not an expert witness. s Ms. Nachman: Join. A: I could not answer that question.

Q: All right. Do you have an opinion whether exposure to coal dust could or might aggravate Mr. Schrum' asthma? s Mr. Rivera: Same objection. Ms. Nachman: A: you. Join.

Again, without doing extensive research, I couldn' tell t

(Exhibit D at 22:13-23:4.) 14. Dr. Khuri further testified that he had not examined Mr. Schrum recently,

had never visited the Chemical Lime plant, and, finally, had never reviewed records from the Chemical Lime plant in connection with Mr. Schrum. (Exhibit D at 24:15-17; 27:1824.) 15. Dr. Fernando' report concludes, "Mr. Schrum does not have occupational s

asthma. He does not have reactive airways dysfunction syndrome or irritant induced asthma which are entities that are caused by sudden onset to a toxic inhalation. He has lifelong asthma that has progressed in recent years and needs more aggressive and consistent therapy." (Exhibit E.)

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DATED this 11th day of April, 2006. FENNEMORE CRAIG, P.C.

By s/Melissa W. Rawlinson Sal J. Rivera William L. Thorpe Melissa W. Rawlinson Attorneys for BNSF

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CERTIFICATE OF SERVICE I hereby certify that on April 11, 2006, I electronically transmitted the attached document to the Clerk' Office using the CM/ECF System for s filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: George T. Brugess Hoey & Farina, P.C. 542 S. Dearborn, Suite 200 Chicago, IL 60605 Attorneys for Plaintiff Charles D. Onofry ReNae A. Nachman Schneider & Onofry, P.C. 3101 N. Central Ave., Ste. 600 Phoenix, AZ 85012 Attorneys for Third-Party Defendant Chemical Lime I hereby certify that on April 11, 2006, I served the attached document by facsimile and U.S. mail on the following, who are not registered participants of the CM/ECF System: William D. Black One East Camelback Road Suite 630 Phoenix, Arizona 85012-1658

s/Yvette M. Tepper 18 19 20 21 22 23 24 25 26
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