Free Reply to Response 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 REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT RE: (1) NO PROOF OF NEGLIGENCE; (2) NO PROOF OF PROXIMATE CAUSATION; AND (3) NO FACTS TRIGGERING ANY INDEMNITY OBLIGATION (Assigned to the Honorable Robert C. Broomfield)

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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.

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, Third-Party Defendant Chemical Lime Company, by and through undersigned counsel, hereby submits its reply in support of its Motion for Summary Judgment Re: No proof of

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Negligence and No Proof of Proximate Causation in reply to Plaintiff's Response.1 Plaintiff's claims and Defendant BNSF's Third-Party Complaint, should be dismissed for the following reasons: 1) Plaintiff fails to address or identify in its Response any negligence

on the part of Chemical Lime for the alleged dust exposure, and therefore, admits there is no proof of negligence on the part of Chemical Lime. 2) Under the Daubert standard Plaintiff's experts are not qualified to

give opinions regarding lime dust and causation for the aggravation of Plalintiff's asthma given his long, significant medical history of asthma, allergies to approximately 40 different allergens (i.e., various trees such as mesquite, various grasses such as Bermuda and rye grass, ragweed, cat and dog hair, and house dust), and past sensitivity to exposure to diesel fuel fumes from locomotive engines to which Plaintiff was exposed simultaneously with the lime dust while at Chemical Lime. 3) irritant. The most Plaintiff's experts could say is that generally "dust" is an

Both Plaintiff's experts have admitted that they are not experts regarding

medical causation of lime dust to the aggravation of asthma and have not been to the Chemical Lime Plant, have not done any testing at Chemical Lime, nor do they know exactly what lime products are produced by Chemical Lime, or to which Plaintiff was exposed. This motion is supported by the attached memorandum of points and authorities, and the entire court file in this matter. STATEMENT OF FACTS This is a FELA case commenced by plaintiff (employee) against his employer, BNSF Railroad. BNSF filed a third-party claim against Chemical Lime

1

Chemical Lime submitted its Reply addressing BNSF's Response to Summary Judgment on

3/9/06.

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seeking contractual indemnity.

Chemical Lime is in the business of producing lime

products and does not disagree that Plaintiff was exposed to some coal or lime dust. Plaintiff's expert ­ Frank Burg ­ has given the opinion that the level of exposure to the dust is not relevant to Plaintiff's negligence claim and that the only negligence by any party in this lawsuit is the negligence of BNSF for the failure to investigate the exposure to dust. (Chemical Lime "CLSOF" ¶ 1, 2, 11). Frank Burg also testified that he is not a medical doctor and not qualified to render medical opinions. (CLSOF ¶ 6). Plaintiff's treating physician - Dr. Lindsay ­ also testified that he is not a chemical physiologist and does not know whether the exposure to lime or coal dust caused an aggravation of Plaintiff's asthmatic bronchitis condition. familiar with the general characteristics of lime. He is not even

(Deposition of Dr. Lindsay, dated Neither is Dr. Lindsay an

2/14/06 at pp. 20, 25, and 33, attached as Exhibit A).

occupational medicine specialist, nor has he inspected the plant or Plaintiff's working environment. (Id. at p. 25). Given his limited knowledge Dr. Lindsay had to acknowledge that it was probable that Plaintiff's symptoms could have been caused by allergies, or hay fever and that it is "almost impossible" to separate the symptoms which Plaintiff reported in May 2003 from allergies. (Id. at 34, 42). Dr. Lindsay testified specifically, "I don't feel, without doing specific studies on Mr. Schrum at the site, on the way to the site, and as moved onto the site, the irritants at the site, that I can say yes this caused the problem. . . ." (Id. at 40-41). In fact, Dr. Lindsay testified that when Plaintiff walks outdoors he is subjected to various allergens. (Id. at 42). In addition, Plaintiff testified that while

working for BNSF on a pull job when he was sitting at a fuel island in Barstow, Arizona, and "after breathing the fumes that were coming off as they fueled out locomotives, I felt Case 2:04-cv-00619-RCB Document 105 -3 Filed 04/07/2006 Page 3 of 11

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discomfort in my chest when I was breathing and dizziness. I think that come from the inhaling the fumes that were coming from the pumps there." (Steve Schrum Deposition dated 8/11/05 at p. 66, attached as Exhibit B). Plaintiff also owns a diesel truck that runs on diesel fuel. (Id. at p. 66). He experienced "dizziness, my lungs bothering me, irritation." (Id.) Surprisingly, Dr. Lindsay was not aware of Plaintiff's past 20-year medical history for asthma until his deposition taken on February 14, 2006. (Exhibit A, at 37).

Dr. Lindsay first saw Plaintiff in February of 2002 for complaints related to breathing. It was not until one year later on 3/10/03 that Plaintiff again went to Dr. Lindsay for breathing complaints. (Id. at pp. 7, 8). Dr. Lindsay testified after Plaintiff was restricted from work for two weeks "we assume [lack of exposure] it might have helped him." (Id. at 18-19). Dr. Lindsay also testified he could not "speculate." (Id.). There is no competent admissible evidence, or testimony, that any lime product produced by Chemical Lime is "toxic", "deadly" or "dangerous" as referred to by Plaintiff. Nor has Plaintiff included in his Response any evidence to support the

allegation that the "dangers of inhalation of coal dust are well documented." (Response at p. 7). dust." ARGUMENT A. The Daubert Standard Applies in This Case and Plaintiff Must Have Qualified Expert Witness Testimony to Prove Causation Separate from the FELA standard for Negligence. Plaintiffs in a FELA case must demonstrate some causal connection between defendant's negligence and their injuries. Claar v. Burlington Northern In fact, the MSDS for limestone dust indicates that limestone is a "nuisance

Railroad, 29 F.3d 499, 503 (9th Cir. 1994). The issue of causation under FELA and admissible expert testimony are separate issues. Claar specifically holds that:

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The standard of causation under FELA and the standards for the admission of expert testimony under the Federal Rules of Evidence are distinct issues and no not affect one another. . . It is true that under FELA the quantum of evidence sufficient to present a jury question of causation is less than it is in a common law tort action. . . .This does not mean, however, that FELA plaintiffs need make no showing of causation. Nor does it mean that in FELA cases courts must allow expert testimony that in other contexts would be inadmissible. It means only that in FELA cases the negligence of the defendant "need not be the sole cause or whole cause of the plaintiff's injuries. . . Claar, 29 F.3d at 503 (citations omitted). Relying on Ulfik v. Metro-North Commuter Railroad, 77 F.3d 54 (2nd Cir. 1996), Plaintiff argues that a jury could reasonably determine that a jury could decide the lime dust aggravated Mr. Schrum's asthma. Ulfik is distinguishable in that the

Plaintiff in that case had no past medical history for the conditions he complained of. The issue is then would a jury reasonably infer that Plaintiff's symptoms were from coal or lime dust when Plaintiff has suffered from these very same symptoms for 20 years? In Sentilles v. Inter-Caribbean Shipping Corp., 361 U.S. 107, 80 S.Ct. 173 (1959) cited by Plaintiff, the court held that "focal point of judicial review is the reasonableness of the particular inference or conclusion drawn by the jury." Id. at 176. In applying this holding to Mr. Schrum's case, it would not be "reasonable" for a jury to conclude that over one-year into a job that brought Mr. Schrum to Chemical Lime property, that his pre-existing asthma would be aggravated, or that without a qualified expert's opinion, a jury could conclude the aggravation was not caused by diesel fumes, allergies or other irritants. In a FELA case although the standard is "slight" or "minimal" evidence for negligence against the railroad, where an injury has multiple potential etiologies, expert witness testimony is still required, even given Plaintiff's reduced burden of proof. Wills v. Amerada Hess Corp., 379 F.3d 32, 46 (2d Cir. 2004). In this case, Plaintiff argues that Frank Burg ­ who is not a medical doctor ­ and Dr. Lindsay ­ who admits Case 2:04-cv-00619-RCB Document 105 -5 Filed 04/07/2006 Page 5 of 11

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he is not qualified to give an opinion regarding the effects of lime dust on Plaintiff beyond an assumption and speculation ­ are qualified to give opinions as to causation of the alleged injuries. This ignores all of the other potential causes and exposures in Plaintiff's past 20-year medical history for asthma as the cause. If this were a case where Plaintiff never had a history of asthma, allergies, hay fever, and did not get dizzy or have his lungs irritated from diesel fumes, this argument would make more sense. Here, Plaintiff testified that he owns livestock, rides horses, team ropes horses, has seasonal allergies, drives a pick-up truck that runs on diesel fuel and gets dizzy and his lungs get irritated from diesel fuel fumes. Plaintiff was exposed to diesel fumes from the

locomotive engines prior to working on Chemical Lime property as well as exposed to diesel fumes continually from working in close proximity with the locomotives while at Chemical Lime. (Exhibit B at pp. 13-15). There is no testimony that diesel fumes, or allergies were ruled out as the cause of Plaintiff's symptoms. Plaintiff has not been

exposed to lime dust, now for almost three years, yet he continues to take Advair Disk, Allegra D, Singulair and Proventil. (Exhibit B at p. 8). Further, an opinion "based solely on a temporal relationship is not derived from the scientific method and is therefore insufficient to satisfy the requirements of Daubert. Schmaltz v. Norfold & Western Railway Co., 878 F.Supp. 1119, 1122 (N.D. Il. 1995). In Schmaltz, the Plaintiff alleged he contracted RADS (Reactive Airway

Dysfunction Syndrome) after exposure to herbicides which his employer sprayed in the areas of the railroad yard. (Id.). The chemicals Plaintiff tried to link his condition to were atrazine or tebuthiuron. Both of Plaintiff's expert witnesses were excluded under the Daubert standard based on the lack of proof the experts' theories were based on scientific evidence, or empirical data. One of the experts never tested the Plaintiff for exposure, and was unaware of the OSHA Permissible Exposure Limit to the chemical. Case 2:04-cv-00619-RCB Document 105 -6 Filed 04/07/2006 Page 6 of 11

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The other expert's opinion was based on a temporal relationship only. excluded. (Id.).

Both were

For the admissibility of expert witness testimony, Daubert requires: 1) whether the theory can be tested; 2) whether it has been subjected to peer review and publication; 3) what the known or potential rate of error is; and 4) it is generally accepted in the relevant scientific community. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-595, 113 S.Ct. 2786, 2799 (1993). The factors are: whether the theory or technique offered can be tested; whether it has been subjected to peer review and publication; what the known or potential rate of error. Id. "The most important factor in the Daubert analysis is whether the proffered scientific theory can be and has been tested by the scientific method." (Schmaltz, 878 F.Supp. at 1121). A scientific theory that is not appropriately validated is not admissible under Fed.R.Evid. 702. (Id.). In this case, both experts Frank Burg and Dr. Lindsay admit that they have not even been on Chemical Lime's property, nor have they taken any samples or measurements of dust to support their opinions. (Exhibit A at pp. 39-41; CLSOF at ¶ 1). Similarly in Claar, the experts never made any effort to rule out other possible causes for the Plaintiff's injuries and admitted this is standard procedure before arriving at a diagnosis. Id. 29 F.3d at 502. The experts in Claar, a case which involved claims for injuries from exposure to chemicals while working at a railroad's facility, similar to the allegations in this case, also had affidavits that discussed the scientific literature regarding particular chemicals causing particular injuries and "which are a necessary foundation for any conclusion the experts might draw," but those affidavits failed to discuss the majority of the injuries alleged by the Plaintiff. Id. In Nook v. Long Island Railroad Company, 190 F.Supp.2d 639 (D.Crt. S.D.N.Y, 2002), the administratrix of a decedent railroad worker's estate brought claims Case 2:04-cv-00619-RCB Document 105 -7 Filed 04/07/2006 Page 7 of 11

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for wrongful death claiming that the decedent's drilling into concrete that contained silica dust caused intramyocardial arteriosclerosis with fibrosis and that Plaintiff was not equipped with the appropriate respiratory device. Id. at 640. Plaintiff's expert's report stated that without the proper protection the decedent was exposed to excessive dust that placed an additional burden on his respiratory system. The court held that

Plaintiff's methodology lacked the scientific or technical reliability as none of his opinion was based on testing or objective data on the actual conditions under which the decedent worked. Id. at 642. No data, testing methodology or empirical evidence was offered and the court found the opinions were phrased in an "entirely speculative manner. . .without proffering any specific information as to the actual or permissible exposure levels." Id. The expert in Nook offered no evidence of qualifications to deliver a medical opinion as to the cardiovascular effects of dust exposure, although he may be considered an expert in the field as an industrial hygienist, there was no evidence of qualifications to make "medical conclusions as to how the assumed contamination of the environment affected decedent's health." Nook, 190 F.Supp at 643. The holding was that the report was based on assumption and speculation without scientific, technical or factual foundation as to the conditions as they may have existed at the time of the Plaintiff's death. Id. at 643. Here, neither of Plaintiff's experts knew exactly what lime product is produced at Chemical Lime to which Plaintiff might have been exposed. Nor have Plaintiff offered any scientific literature or foundation as to the conditions at Chemical Lime to support their conclusions. Frank Burg referred to irrelevant coal mine

conditions in the 1940s as a basis for his opinion that Plaintiff was harmed by the dust. (Plaintiffs CSOF to Chemical Lime's SOF at ¶2). Dr. Lindsay only made a temporal connection between the exposure and improvement after Plaintiff stopped working for Case 2:04-cv-00619-RCB Document 105 -8 Filed 04/07/2006 Page 8 of 11

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two weeks based on assumption and speculation only.

There is no competent

admissible evidence to prove the scientific method was employed by the experts in this case. In Harbin v. BNSF, relied on by Plaintiffs, the issue was whether the railroad's negligence for having its employee work where there was soot caused Plaintiff's heart attack. Harbin v. BNSF, 921 F.2d 129, 130 (7th Cir. 1990). Unlike in this case, however, the Plaintiff in Harbin had a qualified medical expert witness who established a causal link between the negligence and the injury. Id. It was the expert's opinion that strenuous physical exertion by Plaintiff in cleaning boilers precipitated his heart attack. In this case, at most, Plaintiff can argue that in general dust can cause an irritation of asthma ­ but given Plaintiff's 20-year medical history for asthma and allergies and that diesel fumes cause him lung irritation and to become dizzy - that predate the exposure to lime dust, there is no evidence these were ruled out as a cause of Plaintiff's symptoms. The facts are simply that Plaintiff has had life-long asthma, gets dizzy and his lungs get irritated from diesel fumes, and it is almost impossible to separate - per Plaintiff's own treating physician Dr. Lindsay - between the cause of an aggravation of the asthma from seasonal allergies. The fact that Plaintiff has failed to address the many other alleged injuries from the alleged exposure, which include obsessive compulsive disorder, add additional support that there is no causation evidence. In any case, there is no proof of negligence by Chemical Lime, no proof Chemical Lime had any control over Plaintiff, and no proof Chemical Lime should be found negligent simply because it produces lime products without the necessary expert witness testimony to prove causation.

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CONCLUSION For all the foregoing reasons, Third-Party Defendant Chemical Lime Company respectfully requests that this Court enter an Order either dismissing Plaintiff's Complaint in its entirety or dismissing Defendant's Third-Party Complaint against Chemical Lime in its entirety. Dated this 7th day of April, 2006. SCHNEIDER & ONOFRY, P.C. By /s/ Charles D. Onofry ReNae A. Nachman 3101 North Central Avenue, Suite 600 Phoenix, Arizona 85012-2658 Attorneys for Third-Party Defendant Chemical Lime Company of Arizona

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CERTIFICATE OF SERVICE I hereby certify that on April 7th, 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. FENNEMORE CRAIG 3003 North Central Avenue, Suite 2600 Phoenix, Arizona 85012-2913 Attorneys for BNSF I hereby certify that on April 7th, 2006, I served the attached document by facsimile and US mail on the following, who are not registered participants of the CM/EFC System:

s/Janice Froechte

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