Free Reply to Response to Motion - 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 REPLY IN SUPPORT OF BNSF' S MOTION FOR SUMMARY JUDGMENT ON PLAINTIFFS'CLAIMS (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.

BNSF moved for summary judgment because there is no evidence that BNSF caused plaintiff' alleged injuries and plaintiff cannot establish a prima facie case. In s response, plaintiff requested Rule 56(f) relief claiming that he needed to depose two

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doctors who were "essential" to plaintiff' response to BNSF' motion. s s completed these depositions.

Plaintiff

Nevertheless, neither deposition established a causal Similarly,

connection between plaintiff' alleged exposures and his alleged injuries. s

neither deposition established a link between plaintiff' BNSF employment and his s alleged injuries. Consequently, plaintiff now claims that expert testimony is not needed to establish a prima facie case. The law does not support plaintiff' contention. Moreover, s plaintiff has failed to present a genuine issue of material fact to preclude summary judgment. The Court should therefore grant BNSF' motion. s A. BNSF is entitled to summary judgment because plaintiff cannot establish that BNSF caused his alleged injuries.

It is undisputed that a FELA plaintiff must establish a causal connection between a defendant' negligence and the plaintiff' injuries. See e.g., Claar v. Burlington Northern s s Railroad Company, 29 F.3d 499, 503 (9th Cir. 1994). The Ninth Circuit has also ruled that FELA plaintiffs must present expert testimony to establish that workplace exposures caused injuries such as those claimed by plaintiff. Id. In this case, plaintiff has not offered any admissible medical or other evidence to establish that his alleged workplace exposures caused his alleged injuries. Indeed, plaintiff has not provided any medical testimony that shows that his current respiratory complaints differ from his respiratory condition that predated his BNSF employment. Similarly, plaintiff has not provided any evidence to show how his work at the Chemical Lime Plant caused him to experience more "esoteric" injuries such as mood swings, obsessive compulsive disorder, lack of concentration and yelling and fighting. In fact, both doctors that plaintiff suggested would support plaintiff' claims s affirmatively testified that they could not link plaintiff' alleged injuries to his alleged s exposures. (Supplemental Statement of Facts in Support of BNSF' Reply, ("SSOF"), ¶¶ s 3, 8, 9, 13.) Similarly, plaintiff' only disclosed expert admitted that he was not qualified s
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to testify that plaintiff' alleged exposures caused his alleged injuries. (Statement of Facts s in Support of BNSF' Motion for Summary Judgment on Plaintiff' Claims ("SOF"), ¶ s s 10.) Plaintiff therefore has no evidence that BNSF' conduct caused his alleged injuries. s Recognizing the significance of his failure to obtain necessary expert testimony, plaintiff has changed his story. Now, plaintiff contends that expert testimony is not required because Claar does not control here. This last ditch argument is easily rejected. First, Claar is a Ninth Circuit case and therefore has controlling precedential value.1 Second, the facts in Claar are on point with the facts of this case. Like this case, the Claar plaintiffs allegedly suffered injuries because of exposure to work-related chemicals. Contrary to plaintiff' description of Claar, the plaintiffs' ailments were not limited to s "esoteric" results such as difficulty in spelling or arithmetic. Instead, like here, the Claar plaintiffs' injuries included dizziness, headaches, difficulty breathing, nausea, memory loss and damage to their neurological and nervous systems.2 The Ninth Circuit held that expert testimony was required in such a case because a juror is not qualified to determine whether chemical exposures could cause such injuries. The same result is required here. Like the Claar plaintiffs, plaintiff alleges a variety of ailments including chronic asthma, chronic bronchitis and "esoteric" symptoms such as depression, mood swings, obsessive-compulsive disorder, lack of concentration and constantly scratching head sores.3 A lay juror obviously does not have the "specialized expertise" necessary to
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Plaintiff' response is not based on Arizona or Ninth Circuit cases. s See copies of original briefing attached to the Court' and counsel' courtesy copies of this Reply. s s 3 Plaintiff' response does not address all of his claimed injuries, but is limited to aggravation of asthma and s bronchitis. At deposition and during discovery, plaintiff alleged the following injuries (in addition to asthma and bronchitis): shoulder separation, aggravation, wheezing, coughing, sleep deprivation, vertigo, depression, severe mood swings, sexual dysfunction, constantly scratching head sores, lack of energy, change in appetite, feeling worthless and hopeless, suicide thoughts, lack of concentration, obsessive compulsive disorder (must have new soap each bath; no one can touch or look at his food; must use clean glass for each drink; does not like people near him because they contaminate his air), yelling and fighting, nothing seems right, and he will disappear for hours for no reason. Plaintiff does not even bother to assert that he has any medical causation testimony related to these injuries and is apparently conceding that he has no proof of causation for these alleged injuries. Even if plaintiff' claims are s limited to his alleged respiratory illness, expert testimony is still required.
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determine whether alleged periodic exposures to unidentified amounts of lime and coal dust could cause or aggravate plaintiff' alleged injuries.4 Furthermore, because plaintiff s had many of these symptoms before he worked at the Chemical Lime Plant, a juror would have to determine how, if at all, plaintiff' condition changed after working at the Plant. s Plaintiff' claims fail because plaintiff has produced absolutely no evidence on these s points. Plaintiff' reliance on Harbin v. Burlington Northern Railroad Co., 921 F.2d 129 s (7th Cir. 1990), Cella v. U.S., 998 F.2d 418 (7th Cir. 1993), Sentilles v. Inter-Caribbean Shipping Corp., 361 U.S. 107 (1959) and Ulfik v. Metro-North Commuter Railroad, 77 F.3d 54 (2d Cir. 1996) is also misplaced because these cases are easily distinguishable. First, in Harbin, and as noted in plaintiff' response, the plaintiff actually presented s expert testimony that linked the plaintiff' condition to his alleged exposures. Harbin s stands in stark contrast to this case where plaintiff has presented no expert testimony on causation. Likewise, in Cella, the plaintiff offered the testimony of a medical doctor that had conducted extensive research and eliminated other possible causes of plaintiff' s condition. At trial, the doctor testified regarding the cause of plaintiff' injury within a s reasonable degree of medical certainty. Again, this is not the case here. Here, plaintiff' s treating physician (who was not properly disclosed or qualified as an expert) freely admitted that he could not eliminate other causes of plaintiff' condition and that he would s have to conduct additional studies to relate plaintiff' alleged injuries to his work at the s Plant. (SSOF, ¶¶ 3, 4.) In Sentilles, the plaintiff presented testimony from three medical causation specialists. The defendant challenged the quality of this evidence but the court concluded
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The fact that plaintiff' treating physician referred him to a number of specialists to determine the cause of s plaintiff' alleged symptoms confirms the need for expert testimony. In a case such as this one where multiple s specialists saw plaintiff, not one of who reached a definitive conclusion as to the cause of plaintiff' alleged injuries, s a layperson cannot be expected to make such a determination.
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that the plaintiff had presented sufficient medical testimony on causation to submit the case to the jury. Here, BNSF moved for summary judgment because plaintiff has not submitted any credible evidence that connects plaintiff' complaints to his alleged work s exposures. In fact, plaintiff' doctor specifically refused to testify that plaintiff' alleged s s work exposures aggravated his asthmatic condition. Again, this lawsuit is very different from the Sentilles case. Ulfik is also distinguishable. There, the plaintiff allegedly became dizzy and fell after inhaling paint fumes at work. He sued the defendant for the injuries related to the fall. The court held that a trier of fact could reasonably determine, without expert

testimony, that prolonged exposure to paint fumes would cause temporary headache, nausea, and dizziness, which could then result in a fall.5 The court' holding in Ulfik is s not inconsistent with Claar. The court simply found that the causal link was one a layperson could make. There is a distinct difference, however, between linking the paint fumes to the temporary dizziness in Ulfik and linking plaintiff' alleged permanent s injuries to his alleged periodic exposures here. Indeed, specialized expertise is necessary to relate exposure to lime and coal dust to plaintiff' claims of chronic respiratory illness, s depression and the other injuries. This is especially true where, as here, plaintiff had many of these alleged conditions before he worked for BNSF. If the Court were inclined to look outside of the Ninth Circuit for guidance on this issue (which it need not do because of the clear precedent set forth in Claar), Schmaltz v. Norfolk & Western Railway Co., 896 F. Supp. 180 (N.D. Ill. 1995), is more similar to this case than the cases cited by the plaintiff. In Schmaltz, a railroad employee sued the railroad alleging that work-related exposures to herbicides caused him to experience Reactive Airways Dysfunction Syndrome ("RADS").6
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At trial, the court granted

The court also found that the plaintiff established that the exposure caused his alleged dizzy condition because several of his co-employees complained of the same symptoms arising from the same environment. 6 RADS is an asthma-type respiratory syndrome that occurs after high-level irritant exposures.
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defendant' Daubert motion and excluded the plaintiff' expert testimony. Subsequently, s s the defendant moved for summary judgment on the grounds that plaintiff could not establish causation without expert testimony. The district court agreed with the defendant. Citing Claar, the court found that the "existence of a causal relationship between herbicide exposure and respiratory illness is not obvious to lay people." Id. at 182. The court continued, "[t]he fact that Mr. Schmaltz' personal physician had to refer him to a s specialist because she was unsure of the cause of his condition demonstrates that the determination of causation in this case is beyond the expertise of lay people." Id. at 183 (Emphasis in original.) Relying on Claar, the court held that to survive summary

judgment, the plaintiff needed expert testimony to establish a causal link between herbicide exposure and his medical condition. The court granted summary judgment because the plaintiff had no such expert testimony. As in Schmaltz, plaintiff' family doctor, Dr. Lindsay was unsure of the cause of s plaintiff' symptoms and referred him to a number of specialists, including a s pulmonologist, an allergist and a cardiologist. (SSOF, ¶ 5.) Even after these

consultations, however, Dr. Lindsay could not and would not say that plaintiff' alleged s exposures caused his alleged injuries. Again, this demonstrates that this case presents issues beyond the expertise of lay people and confirms the need for expert testimony. In short, summary judgment is warranted because the law requires FELA plaintiffs to provide expert testimony in cases such as this, but plaintiff has not produced any such evidence.7
Plaintiff' response also implies in passing that he does not have to establish causation because Burg opined that s BNSF was negligent per se. Again, this undeveloped argument fails for a number of reasons. First, plaintiff has not articulated a viable or credible negligence per se argument. Second, the Court need only read Burg' deposition s testimony to confirm that Burg had no foundation for this theory. Third, even if BNSF' conduct constituted s negligence per se (which BNSF adamantly denies), this does not eliminate plaintiff's burden to establish causation under the FELA. As recognized in Martinez v. Burlington Northern and Santa Fe Railway Company, 276 F. Supp. 2d 920 (N.D. Ill. 2003), "In an action brought under the FELA, 'the violation of a statute or regulation . . . automatically constitutes breach of the employer's duty and negligence per se and will result in liability if the violation contributed in fact to the plaintiff's injury.'" (quoting Walden v. Illinois Central Gulf R.R., 975 F.2d 361
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B.

Plaintiff' purported "medical causation" testimony does not preclude s summary judgment.

Realizing the frailty of his last ditch legal argument, plaintiff attempts to weave together a number of unsupported and unrelated theories in an effort to create the impression that plaintiff has provided causation evidence. The court need only scratch the surface of these arguments, however, to see that they do not create a jury issue on causation. 1. Dr. Lindsay does not link plaintiff' alleged injuries to his s alleged exposures.

Dr. Lindsay is plaintiff' family doctor (SSOF, ¶ 1) and one of the doctors whose s testimony plaintiff claimed was essential to responding to BNSF' summary judgment s motion. Dr. Lindsay confirmed that plaintiff' asthma, hay fever and related symptoms s predated plaintiff' work with BNSF. (SSOF, ¶ 2.) When asked whether he had a s medical opinion about whether exposure to lime and coal dust aggravated plaintiff' s asthma, Dr. Lindsay declined to offer such testimony stating that he was "not an expert in this area." (SSOF, ¶ 6.) Although Dr. Lindsay stated that plaintiff' subjective s

complaints suggested that plaintiff' work exacerbated plaintiff' asthmatic condition, Dr. s s Lindsay readily admitted that he was not an expert in the area and could not say what in fact caused plaintiff' alleged injuries. s (Id.) Dr. Lindsay testified: "I' not an m

occupational medicine specialist in this day and age, and I have not inspected the plant nor his working environment." (SSOF, ¶ 7.) Dr. Lindsay also conceded that other allergies could have caused the symptoms that plaintiff relates to this case. (SSOF, ¶¶ 3, 8, 9.) Dr. Lindsay further testified that he has not visited the Chemical Lime plant or investigated the type of dust generated at the plant. (SSOF, ¶ 10.) Consequently, Dr.
(7th Cir. 1992) (Emphasis added)). In Walden, the Seventh Circuit rejected the notion that a negligence per se finding established causation as a matter of law. Accordingly, even in a negligence per se context under the FELA, the plaintiff must still prove causation. Plaintiff cannot do so here and BNSF is entitled to summary judgment.
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Lindsay admitted that he has no knowledge regarding the type or level of exposure plaintiff experienced at the Chemical Lime plant and has no knowledge or opinion concerning the level of permissible exposures to lime and/or coal dust. (SSOF, ¶ 11.) Dr. Lindsay' testimony clearly does not establish causation in this case. s 2. Neither the Material Safety Data Sheet nor Dr. Khuri' s testimony establish a causal link between plaintiff' alleged s exposures and his alleged injuries.

Similarly, the Material Safety Data Sheet ("MSDS") does not establish that BNSF caused plaintiff' alleged injuries. The MSDS lists certain potential effects of inhaling s lime dust but obviously does not and cannot establish that plaintiff' alleged injuries were s caused by his alleged exposures at the Chemical Lime plant. Among other things, the MSDS does not explain how much dust plaintiff was exposed to or how this dust caused any medical condition in plaintiff. Consequently, the MSDS does not provide any

relevant or admissible causation evidence. Dr. Khuri, the other doctor who was purportedly "essential" to plaintiff' response, s also conceded that he cannot offer causation testimony: Q: Doctor, do you have an opinion whether exposure to lime dust could or might aggravate Mr. Schrum' s asthma?

[Objections omitted.] A: Q: I could not answer that question. All right. Do you have an opinion whether exposure to coal dust could or might aggravate Mr. Schrum' s asthma?

[Objection omitted.] A: Again, without doing extensive research, I couldn' t tell you.

(SSOF, ¶ 13.) Dr. Khuri further testified that he had not examined Mr. Schrum recently, had never visited the Chemical Lime plant and had never reviewed records from the
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Chemical Lime plant in connection with Mr. Schrum. (SSOF, ¶ 14.) Dr. Khuri is not in a position to offer testimony on medical causation in this particular case. 3. Frank Burg also admitted that he cannot testify that plaintiff' s alleged exposures caused his alleged injuries.

Mr. Burg admitted that he cannot offer medical causation testimony. (SOF, ¶ 12.) Burg testified 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.) Moreover, Mr. Burg' experience in the s safety industry does not qualify him to testify on causation in this case.8 Burg' opinions s are also unreliable because he never visited the Chemical Lime Plant, never conducted any testing and has absolutely no information regarding conditions at the Plant or plaintiff' alleged levels of exposure. (SSOF, ¶ 12.) In short, plaintiff' attempt to use s s Burg to offer medical causation testimony is refuted by Burg' own testimony and the fact s that he is not qualified to offer such testimony. 4. The IME report of BNSF' expert flatly refutes plaintiff' s s claims.

Dr. Norman Fernando conducted an IME on plaintiff. Dr. Fernando testified in no uncertain terms that, "Mr. Schrum does not have occupational 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." (SSOF, ¶ 15.) It is therefore surprising that plaintiff would rely on Dr. Fernando' report. Indeed, s
Burg admitted he is not qualified to offer medical causation testimony. Even if he had not done so, however, such testimony from this witness would be inadmissible. See, e.g., Norfolk and Western Railway Co., 576 S.E.2d 452 (Va. 2003) (medical causation testimony of expert in biomechanical engineering was inadmissible on basis that expert was not a medical doctor); see also Nook v. Long Island Railroad Company, 190 F. Supp. 2d 639 (S.D.N.Y. 2002) (although plaintiff's purported expert was an industrial hygienist, there was no evidence of qualification to make medical conclusions as to how the alleged contamination of the environment affect decedent' health.) s
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while Dr. Fernando notes that dust can exacerbate asthma symptoms, his report rejects the notion that plaintiff' alleged exposures caused plaintiff' respiratory condition. s s Accordingly, plaintiff' reliance on Dr. Fernando' report as evidence of medical s s causation is misplaced, at best. 5. Plaintiff' lay testimony is insufficient to link his symptoms to his s alleged exposures.

Plaintiff is not a medical doctor and has no medical training. Consequently, he is not qualified to offer necessary medical causation testimony. C. Plaintiff' response is insufficient to defeat summary judgment. s

Plaintiff' response bombards the Court with irrelevant allegations, contentions and s theories. It does not, however, present genuine issues of material fact to preclude As Rule 56(e), Fed.R.Civ.P., provides, "[t]he adverse party' s

summary judgment.

response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." (Emphasis added.) Plaintiff' response is s not supported by "facts." Instead, plaintiff offers conclusory and unfounded opinions with no citations to admissible evidence and misstatements and mischaracterizations. BNSF has filed a separate motion to strike plaintiff' Statement of Material Facts s and will not address each misstatement and mischaracterization here.9 However, several of plaintiff' "facts" are so blatantly false and misleading, that BNSF felt compelled to s address them here. For example, plaintiff alleges that Dr. Reidy and Dr. Saadeh "took a history that connected plaintiff' lung problems to plaintiff' exposure to lime and coal s s dust at work on the railroad." (Plaintiff' Response, pg. 3.) This misleading statement, s with no citation to the record, implies that Drs. Reidy and Saadeh made a causal connection between plaintiff' alleged exposure and his respiratory illness. In fact, neither s
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BNSF fully responds to each of plaintiff' statements of fact in BNSF' concurrently filed "Response to Plaintiff' s s s Statement of Facts."
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of these doctors concluded that plaintiff' alleged injuries were caused by the alleged s exposures. Similarly, neither doctor reviewed any details regarding the conditions at the Plant, measured how much dust plaintiff was exposed to or did any of the other things a doctor would have to do to qualify as a causation expert. Furthermore, neither of these doctors has been deposed and there is no foundation for their medical records.10 Plaintiff' implication that these doctors have offered causation testimony is false. s Plaintiff also asserts "[i]t is undisputed that the railroad made no inspection of the Nelson chemical lime plant." (Response, pg. 5) (emphasis added). Again, plaintiff offers no evidence to support this assertion. In reality, BNSF has admitted no such thing and vehemently denies this claim.11 Likewise, plaintiff offers no evidence for the assertion that the condition at the plant was "unsafe." (Response, pg. 5.) Plaintiff' own purported s safety expert has never visited the Chemical Lime plant, conducted testing there or reviewed any records related to the Plant. (SSOF, ¶ 12.) In short, this is simply another unsupported allegation in plaintiff' statement of "facts" and simply part of plaintiff' s s desperate effort to avoid summary judgment. Conclusion Plaintiff cannot establish that his alleged workplace exposures caused his claimed injuries. Similarly, plaintiff has not and cannot present sufficient evidence to create genuine issues of material fact to defeat BNSF' motion. Accordingly, BNSF respectfully s requests that the Court grant its motion for summary judgment. /// /// ///
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Plaintiff undoubtedly would have deposed Dr. Saadeh and Dr. Reidy if he thought these doctors supported his case. In fact, BNSF denies and can disprove the entirety of plaintiff' allegations. Among other things, BNSF made s appropriate masks and respirators available for plaintiff but he chose not to use them. For purposes of this motion, however, it need not do so because plaintiff has failed to establish a prima facie case and has not presented any genuine issues of material fact to defeat BNSF' motion. s
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RESPECTFULLY SUBMITTED 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

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