Free Response - District Court of Arizona - Arizona

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA STEVE SCHRUM, Plaintiff. v. BURLINGTON NORTHERN SANTA FE RAILWAY COMPANY, Defendant. ) ) ) ) ) ) ) ) ) )

Court No.

04 CV 619

Judge Robert C. Broomfield

PLAINTIFF'S RESPONSE TO THIRD-PARTY DEFENDANT, CHAMICAL LIME'S STATEMENT OF MATERIAL FACT NOW COMES Plaintiff, STEVE SCHRUM, by and through his

attorneys, GEORGE T. BRUGESS and HOEY & FARINA, P.C., and for his response to Third-Party Defendant, Chemical Lime's statement of material fact states as follows: 1. The is only the "negligence" alleged which Plaintiff's of BNSF in expert failing Frank has to

identified investigate testified:

negligence exposure.

the

potential

Specifically

Burg

Q: Do you have any evidence one way or another whether BNSF is aware of the air quality of the Chemical Lime plant? A: Yes, they are aware of the materials at the lime plant in that they service the lime plant. Q: Have you ever ­ Well, I think I know the answer to this question. You have never measured any conditions of the Chemical Lime Plant, correct? A: No.

Case 2:04-cv-00619-RCB

Document 101

Filed 03/23/2006

Page 1 of 13

Q: Did you ever do a site inspection. A: No. Q: Why or why not? A: Because the blatant violation of the law is the fact that the BNSF didn't determine the level of exposure at the site. That's what their obligation is under the law and the custom and practice. They must determine what the levels are and take appropriate action. *** Q: Do you have any evidence as you sit here today whether there has ever been a violation at the Chemical Lime plant of any applicable standards? A: Well, there is absolute evidence of a violation of applicable standards at the lime plant in that the standards specifically requires employer ­ namely, the BNSF ­ to determine whether there is a hazard or not. That in itself is a very serious violation of the standards, the law, the customs and practices.... *** Q: In broad terms ­ I'm not trying to overlook anything, but it sounds like your opinions are really directed towards, No. 1, stating that there was an obligation by BNSF to determine if there was an exposure to some hazard or hazardous conditions? A: True. Q: And that if it had done that investigation and reached the determination that there was some exposure, then to address that? A: True. ***

Case 2:04-cv-00619-RCB

-2Document 101

Filed 03/23/2006

Page 2 of 13

Q: Let me see if I understand the reason why you suggested there was possibly some criminal responsibility here. It is because you believe BNSF knew that there was an exposure to lime dust and coal dust, that the employee reportedly complaints about it, and that there was no response in either removing him from the situation or giving him the personal protective equipment. Is that the basis of your saying that or is there more? A: Yes, that's ­ I would ­ From an OSHA standpoint, they knowingly and willfully allowed an exposure to toxic materials of one of their employees, and that's not acceptable. Response: Plaintiff denies the allegations of paragraph 1 of Chemical Lime's statement of material fact. According to

Frank Burg, ANY exposure to lime dust requires the railroad to provide a respirator; threshold limits only apply to whether a citation would be issued under the threshold limit regulation. (Burg deposition pp. 62-63, 117-117) 2. The level liability of exposure Frank was inconsequential Specifically, to he

Plaintiff's testified:

expert,

Burg.

Q: So that I'm clear: The triggering event simply for the obligation to go in and investigate is simply knowing that there is lime dust and/or coal dust at the facility? A: Yes, and in fact ­ Q: Regardless of the level? It is just that it is present? A: Right... the hazard communication requirements come into play for any potential exposure to hazardous material....

Case 2:04-cv-00619-RCB

-3Document 101

Filed 03/23/2006

Page 3 of 13

Response: Plaintiff denies the allegations of paragraph 2 of Chemical Lime's statement of material fact. The level of exposure was compared by Frank Burg to the condition in coal mines in the 1940's; Mr. Burg felt the level of exposure was consequential enough to demand criminal prosecution of the

railroad. (Burg deposition pp. 16, 54-55, 61) 3. Plaintiff denied the fact that he has had a life-long

asthma during the deposition, but his pre-existing condition is well documented. Specifically he testified: Q: How about one, two, three sentences down, it says, "He denies any history of childhood asthma"? A: I didn't experience any asthma until I was like I said approximately 16 years old. If he had asked me did I have experience with asthma as a small child, I would have said no. Q: Let me show you the next exhibit... this is a note from Richard Riedy, M.D., referring physician Dr. Lindsay, dictation date April 7, 2003; correct? A: Yes. Q: Okay. First sentence of the second paragraph under present illness, it says, "He has a history of asthma as a child." Did you tell Dr. Riedy that you did have a history of asthma as a child? A: I don't believe that I told Dr. Riedy that I had a history of asthma as a child... Q: So you think Dr. Riedy is wrong? A: I think that he wrote down is incorrect.

Case 2:04-cv-00619-RCB

-4Document 101

Filed 03/23/2006

Page 4 of 13

Response: Plaintiff denies the allegations of paragraph 3 of Chemical Lime's statement of material fact. Defendants have no childhood records of Plaintiff documenting asthma. It is

apparent that Dr. Reidy considered the sixteen year old Schrum still a "child" for the purposes of asthma onset history. 4. Plaintiff claims that he suffers from Various

undefined respiratory ailments because of the alleged exposure. Specifically he testified: A: My claims are arising from becoming sick from or believing to be sick from the coal dust and lime dust when I become sick in 2002. That's what I am stating. In 2002, I became very sick, and may the weeks before February I had been experiencing bronchitis and different things, and it led me to believe it was coming from the being at the lime plant. *** Q: Why don't you describe for me the symptoms that you do claim damages for in this case. Is it fair to say ­ well, you go ahead and give me your list. A: Bronchitis chronic. Q: Chronic bronchitis? A: Yes. Chronic asthma. Q: Asthma is something you have longtime in your life; correct? A: Yes. Q: Okay. What else? Chronic asthma. had for a

Case 2:04-cv-00619-RCB

-5Document 101

Filed 03/23/2006

Page 5 of 13

A. That's the ­ that's the injuries as far as I know. I am not a doctor. I went to the doctor to be treated, and that's what they have told me. Response: Plaintiff denies the allegations of paragraph 4 of Chemical Lime's statement of material fact. Plaintiff never claimed he suffers from "various undefined respiratory

ailments"; Plaintiff claims his asthma was aggravated by the exposures and the exposures caused bronchitis. 5. The only expert report produced by Plaintiff is a

report by Frank Burg. Response: Plaintiff admits the allegations of paragraph 5 of Chemical Lime's statement of material fact. 6. opinion Plaintiff's expert Frank Burg testified that he has no as to what medical conditions, if any, Plaintiff

suffered. Specifically he testified: Q: ...What specific medical problems in plaintiff do you believe were caused by the alleged exposures? A: I am not a doctor of the plaintiff. I can tell you in general what happens. Q: I want to know ­ Right now my question, Mr. Burg, relates to the Plaintiff. A: Well, I can't answer that question. I will have to talk to his doctor. *** Q: ... First, it is correction that you are not going to be offering any opinions to t he effect that any of Mr. Schrum's medical conditions whatever those might be, however he might

Case 2:04-cv-00619-RCB

-6Document 101

Filed 03/23/2006

Page 6 of 13

describe them ­ are, in fact, related to the specific exposures at the Chemical Lime plant? A: That's true. That's a medical opinion. I would have t o rely on a doctor for that. Response: Plaintiff denies the allegations of paragraph 6 of Chemical Lime's statement of material fact. Frank Burg

testified to the effects of dust inhalation on the respiratory system. (Burg deposition pp. 76-77, 108, 134) 7. Industry BNSF tendered its defense to Chemical Lime under an Track Agreement dated October 15, 1991. Contained

within that contract is an indemnity provision which provide as follows: 4(a). Industry shall indemnify and hold harmless Santa Fe for any claim, loss, damage, expense or injury, including death, arising out of any act or omission of the Industry, its employees or agents to the person or property of the parties hereto and their employees, and to the person or property of any other public body, individual, partnership, corporation, or other legal entity while on our about The Track or while exercising any right or performing any obligation, pursuant to this Agreement, except where such claim, loss damage, expense, injury or death arises from the sole negligence of Santa Fe, its agents or employees. 4(b). Regardless of any negligence of Santa Fe, Industry shall indemnify and hold harmless Santa Fe from any liability or claimed liability arising under the Federal Employees Liability Act (45 U.S.C. §51, et. seq.) for any incident caused, wholly or in party, by property, equipment, fixtures or condition belonging to or under the control of Industry.

Case 2:04-cv-00619-RCB

-7Document 101

Filed 03/23/2006

Page 7 of 13

Response: Plaintiff admits the allegations of paragraph 7 of Chemical Lime's statement of material fact. 8. The Industry Track Agreement dated 10/15/1991 is

governed by the laws of Arizona. Specifically, the agreement provides: All questions arising under this Agreement shall be decided according to the laws of the State in which The Track is located. Response: Plaintiff admits the allegations of paragraph 8 of Chemical Lime's statement of material fact. 9. contract BNSF tendered its defense to Chemical Lime under a dated June 12, 2002, setting forth various rights,

duties and obligations. Contained within that contract is an indemnity provision which provides as follows: *** 10(a). To the fullest extent permitted by law, industry shall release, indemnify, defend and hold harmless railroad and railroad's affiliated companies, partners, successors, assigns, legal representatives, officers, directors, shareholders, employees and agents (collectively "indemnities") for, from and against any and all claims, liabilities, fines, penalties, costs, damages, losses, liens, causes of action, suits, demands, judgments and expenses (including, without limitation, court costs, attorneys' fees and costs or investigation, removal and remediation and governmental oversight costs), environmental or otherwise (collectively "liabilities") of any nature, kind or description of any person or entity directly or indirectly arising out of, resulting from or related to (in whole or in part):

Case 2:04-cv-00619-RCB

-8Document 101

Filed 03/23/2006

Page 8 of 13

(i) this agreement, including, without limitation, its environmental provisions, (ii) any rights or interests granted pursuant to this Agreement, (iii)industry's occupation and use of railroad's property or the use of any operation by railroad upon the industry's property, (iv) the environmental condition and status of the track or railroad's property caused or aggravated by, or contributed to, in whole or in part, by industry, (v) the environmental condition and status of industry's plant, or (vi) any act or omission of industry or industry's officers, agents, invitees, employees, or contractors, or anyone directly or indirectly employed by any of them, or anyone they control or exercise control over, even if such liabilities arise from or are attributed to, in whole or in part, any negligence of any indemnitee. The only liabilities with respect to which industry's obligation to indemnify the indemnities does not apply are liabilities to the extent proximately caused by the gross negligence or willful misconduct of indemnitee." *** 10(c). Industry further agrees, regardless of any negligence or alleged negligence of any indemnitee, to indemnify, and hold harmless the indemnities against and assume the defense of any liabilities asserted against or suffered by any indemnitee under or related to the Federal Employers' Liability Act ("FELA") whenever employees of industry or any of its agents,

Case 2:04-cv-00619-RCB

-9Document 101

Filed 03/23/2006

Page 9 of 13

invitees, contractors claim or allege that they are employees of any indemnitee or otherwise. This indemnity shall also extend, on the same basis, to FELA claims based on actual or alleged violations of any federal, state or local laws or regulations, including but not limited to the Safety Appliance Act, the Boiler Inspection Act, the Occupational Health and Safety Act, the Resource Conservation and Recovery Act, and any similar state or federal statute. Response: Plaintiff admits the allegations of paragraph 9 of Chemical Lime's statement of material fact. 10. The Industry Track Agreement dated 6/12/2002 is

governed by Texas law. Specifically, the contract provides: 20. All questions concerning the interpretation or application of provisions of this Agreement shall be decided according to the laws of the State of Texas. Response: Plaintiff admits the allegations of paragraph 10 of Chemical Lime's statement of material fact. 11. Plaintiff's expert Frank Burg characterized BNSF's

conduct as much more than negligence, gross negligence, or even willful misconduct, specifically he testified as follows: Q: Is there anything that needs to be added to your report as of this moment? *** A: Aside from that, I don't know. I talked ­ The one thing I did talk to the attorney about this morning is my belief that this case against the railroad should be referred to the district attorney for criminal prosecution. And if I had a chance to do it over, I think I would have wrote an opinion and gotten on the record that.

Case 2:04-cv-00619-RCB

- 10 Document 101

Filed 03/23/2006

Page 10 of 13

Q: And what is that opinion that you just articulated today that is not included in your report based on? A: Well, you know, I was an OSHA compliance officer, federal officer, for almost 18 years and so I saw a lot of violations. And I had been doing this for almost ­ I think almost 18 years and so I saw a lot of violations. And I had been doing this for almost ­ I think over 35 years. So I had been around the block, as they say, a lot of times. And I can't remember a case where there was such a blatant disregard of the health and safety of a worker as in this case. It is ­ It is horrifying. Response: Plaintiff admits the allegations of paragraph 11 of Chemical Lime's statement of material fact. 12. Dr. Riedy noted on April 23, 2003 that Plaintiff has a

"history of asthma as a child. He also has a history of seasonal allergies." Response: Plaintiff admits the allegations of paragraph 12 of Chemical Lime's statement of material fact. 13. a "past Dr. Hagstrom from the Mayo Clinic noted Plaintiff has medical history significant for asthma, smoking,

hypertension, rheumatic fever as a child . . . ." Response: Plaintiff admits the allegations of paragraph 13 of Chemical Lime's statement of material fact. 14. Plaintiff testified: A. My claims arising from becoming sick from or believing to be sick from the coal dust and lime dust when I become sick in 2002. That's what I am stating. In 2002, I became very sick, and maybe the weeks before

Case 2:04-cv-00619-RCB

- 11 Document 101

Filed 03/23/2006

Page 11 of 13

February I had been experiencing bronchitis and different things, and it led me to believe it was coming from being at the lime plant. Response: Plaintiff admits the allegations of paragraph 14 of Chemical Lime's statement of material fact. 15. Plaintiff was first diagnosed or treated for his

claims on 2/2/2002. Response: Plaintiff admits the allegations of paragraph 15 of Chemical Lime's statement of material fact.

Respectfully submitted,

s/ George T. Brugess George T. Brugess One of Plaintiff's Attorneys

George T. Brugess HOEY & FARINA, P.C. Attorneys for Plaintiff 542 South Dearborn Street Suite 200 Chicago, Illinois 60605 312/939-1212

Case 2:04-cv-00619-RCB

- 12 Document 101

Filed 03/23/2006

Page 12 of 13

PROOF OF SERVICE Manuela D. Popescu a non-attorney, certifies that she served a copy of the foregoing document upon the attorneys listed below via the Court's E-filing notification system and by placing a copy thereof in the United States Mail box located at 542 S. Dearborn, Chicago, Illinois addressed as below, with proper postage affixed at or before 5:00 on March 23, 2006. Sal J. Rivera Melissa W. Rawlinson William L. Thorpe FENNEMORE CRAIG 3003 North Central Avenue Suite 2600 Phoenix, Arizona 85012-2913

Charles D. Onofry SCHNEIDER & ONOFRY, P.C. 3101 North Central Avenue Suite 600 Phoenix, Arizona 85012

s/ Manuela D. Popescu

George T. Brugess HOEY & FARINA, P.C. 542 South Dearborn Street Suite 200 Chicago, Illinois 60605 312/939-1212

Case 2:04-cv-00619-RCB

- 13 Document 101

Filed 03/23/2006

Page 13 of 13