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 BURLINGTON NORTHERN SANTA FE RAILWAY COMPANY 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 Burlington Northern Santa Fe Railway Company's (BNSF) statement of material fact states as follows: 1. against ("FELA"). Response: Plaintiff admits the allegations of paragraph 1 of BNSF's statement of material fact. 2. Plaintiff, a former employee of BNSF, specifically On February 12, 2004, plaintiff filed his complaint BNSF under the Federal Employers' Liability Act

alleged that he sustained respiratory injuries while working as a conductor on BNSF trains which serviced a lime plant in

Nelson, Arizona ("the Plant"). Response: Plaintiff admits the allegations of paragraph 2 of BNSF's statement of material fact.

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3.

Plaintiff alleges that the inhalation of lime, coal,

and coke dust at the Plant caused him to suffer, among other things, "severe respiratory injury." Response: Plaintiff admits the allegations of paragraph 3 of BNSF's statement of material fact. 4. More specifically, plaintiff claims that the alleged

exposures cause him to suffer the following: Chronic asthma, Chronic 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. Response: Plaintiff denies the allegations of paragraph 4 of BNSF's statement of material fact. The interrogatory asked for conditions "caused, aggravated or otherwise contributed to" the exposure. 5. At deposition, Mr. Schrum testified that he made

misrepresentations to his doctors about certain claims. Response: Objection, irrelevant. The claimed

"misrepresentations" involved a fist fight.

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6.

On December 13, 2004, plaintiff disclosed Frank Burg

as his only expert. Response: Plaintiff denies the allegations of paragraph 6 of BNSF's statement of material fact. Frank Burg is Plaintiff's only retained expert; Plaintiff disclosed Dr. Khuri and Dr.

Lindsay as an opinion witness. 7. Plaintiff submitted Mr. Burg's report at that time. Plaintiff admits the allegations of paragraph 7

Response:

of BNSF's statement of material fact. 8. cumulative Burg's report indicated that Burg would testify that exposures to coal, coke, and lime "caused"

plaintiff's injuries. Response: Plaintiff admits the allegations of paragraph 8 of BNSF's statement of material fact. 9. In a June 24, 2005 letter, plaintiff's counsel

informed BNSF that Mr. Burg would be testifying that BNSF's conduct was the "legal cause" of plaintiff's injuries. Response: Plaintiff admits the allegations of paragraph 9 of BNSF's statement of material fact. 10. Mr. Burg is not a medical doctor. He has no degrees or

certificates in medicine, medical training, chemistry, or the health profession. Response: Plaintiff denies the allegations of paragraph 10 of BNSF's statement of material fact. Frank Burg has training

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and

teaches

OSHA

classes

on

the

effects

of

dust.

(Burg

deposition pp. 39, 76) 11. When asked about his testimony on causation at his

deposition, Burg testified: Q: What exact medical problems do you believe was caused by the alleged exposures? A: Well, I actually teach that also. There is these air stack ­ Q: Mr Burg, let me interrupt you. In plaintiff to be clear. 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 questions, Mr. plaintiff. know Burg, ­ Right relates now my to the

A: Well, I can't answer that question. I will have to talk to his doctor. Response: Plaintiff denies the allegations of paragraph 11 of BNSF's statement of material fact. Frank Burg testified as follows at his deposition: Q: Okay. What is the basis for your opinion that cumulative exposures to coal, coke, lime, and diesel have caused serious respirator and sinus health problems? A: My experience over 35 years. Conducting hygiene surveys at steel mills and foundries and industrial plants and refineries and construction sites and gravel pits. I have a considerable body of experience with dust. And, in fact, I teach in almost every one of my classes the danger of dusts.

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And I can tell you ­ I will testify here just like I have many times ­ if you see dust in the air, that represents a significant danger. If you see your children are breathing in the clouds of dust or you have clouds of dust near your home or, you know, any type of dust that you are exposed to, that's reason for very serious concern. Q: What is it about your experience that you believe qualifies you to offer the opinion that dusts caused a medical condition in plaintiff? A. Well, I've seen it over and over again in the coal mines, in the foundries, on construction sites, in factories, in steel mills. Everywhere I've gone where workers are exposed to mineral dust and even wood dust and some other kinds of dusts has resulted in serious damage to the respiratory system and damage to the lungs. Scarring to the lungs. So you know, I am a person that is very concerned about dust exposures. (Burg deposition pp. 76-77) 12. Burg further testified: Q: First, it is correct that you are not going to be offering any opinion to the effect that any of Mr. Schrum's medical conditions ­ whatever those might be, however he might 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 to rely on a doctor for that. Response: Plaintiff admits the allegations of paragraph 12 of BNSF's statement of material fact.

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13. hygienist

Burg than

described a

himself and

as

more

of

an

industrial he was not

toxicologist

admitted

that

qualified to testify on causation. Q: Does industrial hygiene also include, in your view, connecting a particular condition or symptom with the exposure to the environment? A: No, I would say that that's the job of a medical doctor, as I already testified to. We could tell you if there is violations [sic] of standards and customs and practices. Response: Plaintiff denies the allegations of paragraph 13 of BNSF's statement of material fact. See Frank Burg testimony cited at Paragraph 11 above. 14. passed. Response: Plaintiff admits Plaintiff's deadline to disclose retained experts has passed. Respectfully submitted, Plaintiff's deadline to disclose expert witnesses has

__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

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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 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

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