Opinion
3:18-cv-00040
2019-08-14
Thomas M. BEVING, Plaintiff, v. UNION PACIFIC RAILROAD COMPANY, Defendant.
George F. Davison, Jr., Law Office of George F. Davison, Jr., LC, Des Moines, IA, James T. Farnan, Pro Hac Vice, James T. Foley, Pro Hac Vice, Michael B. Gunzburg, Pro Hac Vice, Ridge & Downes, Chicago, IL, for Plaintiff. Brody Elizabeth Dawson, Thomas a.P. Hayden, Pro Hac Vice, Union Pacific Railroad Company, Chicago, IL, for Defendant.
George F. Davison, Jr., Law Office of George F. Davison, Jr., LC, Des Moines, IA, James T. Farnan, Pro Hac Vice, James T. Foley, Pro Hac Vice, Michael B. Gunzburg, Pro Hac Vice, Ridge & Downes, Chicago, IL, for Plaintiff.
Brody Elizabeth Dawson, Thomas a.P. Hayden, Pro Hac Vice, Union Pacific Railroad Company, Chicago, IL, for Defendant.
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
ROBERT W. PRATT, Judge
Before the Court is Defendant Union Pacific Railroad Company's Motion for Summary Judgment, filed on April 26, 2019. ECF No. 42. Plaintiff Thomas M. Beving filed his resistance to Defendant's Motion for Summary Judgment on May 24, ECF No. 48, and Defendant filed its Reply on May 31, ECF No. 50. Also before the Court is Defendant's Motion to Bar Expert Opinion Testimony of Daniel McGuire, M.D., filed on April 26. ECF No. 43. Plaintiff filed his resistance to Defendant's Motion to Bar on May 10. ECF No. 45. This Court heard oral arguments on both motions on June 21. See ECF No. 54. Both parties submitted letters to the Court in support of their positions on July 1, as requested by the Court at the hearing. ECF Nos. 56, 57. The matter is fully submitted.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff began working as a laborer for Defendant in January 2015. ECF No. 42-2 ¶ 1. Upon beginning his employment with Union Pacific, Plaintiff underwent orientation and received some training. Id. ¶ 2. He also received subsequent, on-the-job training. ECF No. 42-3 at 12. Union Pacific employed Plaintiff for about three and a half months. ECF No. 42-2 ¶ 1.
On April 17, 2015, Plaintiff was working with a gang of Union Pacific laborers replacing railroad ties. ECF No. 48-2 ¶¶ 3–4. His track supervisor that day was Rudy Bronkhorst. Id. ¶ 1. Plaintiff's job was to set and fasten spikes behind a tamper machine. Id. ¶¶ 8, 13. He had been doing this work for nine days. ECF No. 42-2 ¶ 8. The gang initially used large, twelve-pound sledgehammers but eventually broke all of their handles. ECF No. 48-2 ¶ 6. Plaintiff claims that when the handle of his own twelve-pound hammer broke, he asked other gang members and Bronkhorst for additional large sledgehammers or replacement handles but found there were none available at the job site. Id. ¶¶ 7, 11. At that time, Bronkhorst allegedly instructed Plaintiff to use a smaller, eight-pound sledgehammer. Id. ¶ 12. Plaintiff asserts that his injury, which he felt as a pop in his back, occurred as he was swinging that lighter hammer. Id. ¶ 15; ECF No. 42-2 ¶ 11. He explained that the lighter weight caused him to swing harder and more frequently, and he emphasized that they were working on a steep grade of new ballast rock at that time. ECF No. 48-2 ¶ 14; ECF No. 42-2 ¶ 11. The pain intensified when he sat down after completing the day's work. ECF No. 48-2 ¶ 16.
Plaintiff reported this injury to Bronkhorst for the first time on the following Monday, April 20. See ECF No. 48-2 ¶ 17. The next day he completed a Report of Personal Injury form. ECF No. 42-2 ¶ 9; see ECF No. 42-3 at 23–24. In this report, Plaintiff stated that he used a variety of tools throughout the day and "[a]t the end of the day [he] noticed tightness and soarness [sic] in [his] lower back." ECF No. 42-3 at 23; see ECF No. 42-2 ¶ 9. The form specifically asked if equipment or tools caused or contributed to the cause of the injury, and Plaintiff responded "NA." ECF No. 42-3 at 23; see ECF No. 42-2 ¶ 9. On April 24, Plaintiff also gave a recorded statement to John Kuebler, a Risk Management Representative for Defendant. ECF No. 42-2 ¶ 10. At that time, Kuebler asked if Plaintiff hurt himself at a specific time during the day, and Plaintiff answered, "No." Id. During the same statement, Plaintiff was also asked if he believed he needed additional tools to perform the work he was doing when injured, and Plaintiff answered, "No." Id. In the same recorded statement, and at his subsequent deposition, Plaintiff stated that Defendant provided him with a reasonably safe place to work. Id. ¶ 17.
Plaintiff retained Richard Inclima, the former Director of Safety for the Brotherhood of Maintenance of Way Employees Division of the International Brotherhood of Teamsters, as a liability expert. ECF No. 42-2 ¶ 18; ECF No. 48-3 at 84. Inclima opined that a sledgehammer of any weight was an inappropriate tool for driving railroad spikes and that Plaintiff should have been provided with a spike maul. ECF No. 42-2 ¶ 19; ECF No. 48-2 ¶¶ 21, 25. According to Inclima, a sledgehammer is too short for spiking over the rail and could increase the risk of a glancing blow. ECF No. 48-2 ¶ 24; ECF No. 48-3 at 94. In addition, railroad spikes are usually made of soft steel. ECF No. 48-2 ¶ 21. Inclima highlighted that Defendant's Safety Rule 76.3.2 states that sledgehammers are "[f]or use on hardened steel" while spike mauls should "only be used for setting and driving railroad spikes." ECF No. 48-3 at 123. The same rule requires hammers to "only be used for their intended purpose." Id.
Inclima opined that this safety rule reflected the custom and practice of the railroad industry, id. at 72, but offered conflicting testimony on the underlying safety of the use of a sledgehammer for Plaintiff's task, see id. at 63, 81. When first asked, Inclima did not know the purpose behind the rule and did not know if a sledgehammer was unsafe for driving spikes. ECF No. 42-2 ¶ 20; see ECF No. 48-3 at 63. But later in the same deposition, Inclima was asked, "[I]n your opinion would a sledgehammer have been a safe tool for use in driving the spikes that Mr. Beving was using for driving on the date of the occurrence?" ECF No. 48-3 at 81. Inclima responded "No, the proper and appropriate tool is a spike maul for driving spikes." Id. Defendant argues the distinction between appropriate uses for sledges and spike mauls exists to prevent flying debris and metal fragments, not to avoid pressure on the user's back. ECF No. 55 at 30; ECF No. 37-3 at 49.
On April 28, 2015, Plaintiff visited Dr. Daniel McGuire for diagnosis and treatment of his back injury. ECF No. 42-2 ¶ 34. Dr. McGuire had previously diagnosed Plaintiff with right sciatica and a large disk lesion and performed a laminectomy at L5-S1 in July 2013. Id. ¶¶ 28–30. That 2013 injury occurred while Plaintiff was working on his car, prior to Plaintiff's employment with Defendant. ECF No. 48-3 at 132. During his April 2015 visit, Plaintiff reported that he had a heavy day at work roughly twelve days before that had resulted in an injury. ECF No. 42-2 ¶ 35. Dr. McGuire diagnosed Plaintiff with right sciatica again and performed a second surgery, this time a L4-5 laminectomy, on May 20, 2015. Id. ¶¶ 38–39. Dr. McGuire did not ask about the specific circumstances leading to Plaintiff's injury at work, ECF No. 42-2 ¶ 36, and only "glanced" at the provided job description of a railroad laborer's work referenced in his notes on August 24, 2015, ECF No. 48-3 at 144. See generally ECF No. 45-1 (job description). On October 9, 2015, Plaintiff participated in a Functional Capacity Evaluation; its results placed him at a medium work capacity. ECF No. 42-2 ¶ 40. At that time, Dr. McGuire noted that Plaintiff was "essentially at [maximum medical improvement]." ECF No. 48-3 at 155–56. He went on to explain that this prognosis applied for "the next 6, 12, 24 months." Id. at 156. Dr. McGuire last saw Plaintiff as a patient on October 13, 2015. ECF No. 42-2 ¶ 41.
Plaintiff disclosed Dr. McGuire as a non-retained expert witness under Federal Rule of Civil Procedure 26 and specified that Plaintiff anticipated Dr. McGuire would testify regarding his diagnosis and treatment of Plaintiff as well as the cause, permanency, and prognosis of Plaintiff's injury. ECF No. 44-1 at 2. At his deposition on March 1, 2019, Dr. McGuire testified he did not know the mechanism of Plaintiff's injury and could not speak to that as a cause of injury. ECF No. 42-2 ¶ 45. He also testified he did not know the forces that Plaintiff's spine was subject to during his employment with Defendant. Id. Nor did he review Plaintiff's deposition. Id. ¶ 47. His only points of reference for the circumstances of Plaintiff's injury were Plaintiff's mention of a heavy day at work and the description of a railroad laborer's work referred to above. ECF No. 48-2 ¶ 33. Dr. McGuire opined at his deposition that "almost anything can cause a disk to herniate," ECF No. 48-3 at 135, and then answered affirmatively to a series of hypotheticals posed by Plaintiff's counsel about whether a disk herniation could be caused by swinging a sledgehammer, id. at 148. One such exchange, which is indicative of the rest of the series, went as follows:
Q: And if, in fact, Mr. Beving was swinging heavy sledgehammers for hours throughout the day and he heard, felt a pop in his back while swinging the sledgehammer, it would be your opinion to a reasonable degree of medical and surgical certainty that that activity would have been the cause of the injury to the disk; is that fair?
....
Q: Is that fair?
A: Yes.
Id. at 162.
Plaintiff filed a Complaint with this Court on April 11, 2018, ECF No. 1, and an Amended Complaint on December 17, 2018, seeking damages against Defendant and alleging negligence under the Federal Employers' Liability Act (FELA), 45 U.S.C. §§ 51 – 60, ECF No. 22 ¶¶ 2, 10–14. Specifically, Plaintiff claims injury to his back, legs, and body as a result, at least in part, of Defendant's failure to provide Plaintiff with appropriate tools. Id. ¶¶ 9, 11. Defendant now moves to bar the expert testimony of Dr. Daniel McGuire, ECF No. 43, and moves for summary judgment, ECF No. 42.
II. SUMMARY JUDGMENT STANDARD
The term "summary judgment" is something of a misnomer. See D. Brock Hornby, Summary Judgment Without Illusions , 13 Green Bag 2d 273 (Spring 2010). Although it "suggests a judicial process that is simple, abbreviated, and inexpensive," in reality the process is complicated, time-consuming, and expensive. Id. at 273, 281. The complexity of the process for determining whether summary judgment is appropriate, however, reflects the "complexity of law and life." Id. at 281. "Since the constitutional right to jury trial is at stake," judges must engage in a "paper-intensive and often tedious" process to "assiduously avoid deciding disputed facts or inferences" in a quest to determine whether a record contains genuine factual disputes that necessitate a trial. Id. at 281–82. Despite the seeming inaptness of the name and the desire for some in the plaintiffs' bar to be rid of it, the summary judgment process is well-accepted and appears to be "here to stay." Id. at 281. Indeed, "judges are duty-bound to resolve legal disputes, no matter how close the call." Id. at 287.
Indeed, Judge Hornby, a district court judge for the District of Maine, convincingly suggests the name "summary judgment" should be changed to "motion for judgment without trial." 13 Green Bag 2d at 284.
Judge Hornby notes that over seventy years of U.S. Supreme Court jurisprudence gives no hint the summary judgment process is unconstitutional under the Seventh Amendment. Id. at 281 (citing Parklane Hosiery Co. v. Shore , 439 U.S. 322, 336, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979) and Sartor v. Ark. Natural Gas Corp. , 321 U.S. 620, 627, 64 S.Ct. 724, 88 L.Ed. 967 (1944) ). While Judge Hornby recognizes not much can be done to reduce the complexity of the summary judgment process, he nonetheless makes a strong case for improvements in it, including, among other things, improved terminology and expectations and increased pre-summary judgment court involvement. See id. at 283–88.
"[S]ummary judgment is an extreme remedy, and one which is not to be granted unless the movant has established his right to a judgment with such clarity as to leave no room for controversy and that the other party is not entitled to recover under any discernible circumstances." Robert Johnson Grain Co. v. Chem. Interchange Co. , 541 F.2d 207, 209 (8th Cir. 1976). The purpose of summary judgment is not "to cut litigants off from their right of trial by jury if they really have issues to try." Poller v. Columbia Broad. Sys., Inc. , 368 U.S. 464, 467, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962) (quoting Sartor , 321 U.S. at 627, 64 S.Ct. 724 ). Rather, it is designed to avoid "useless, expensive and time-consuming trials where there is actually no genuine, factual issue remaining to be tried." Anderson v. Viking Pump Div., Houdaille Indus., Inc. , 545 F.2d 1127, 1129 (8th Cir. 1976).
Rule 56(a) provides, "A party may move for summary judgment, identifying each claim or defense—or the part of each claim or defense—on which summary judgment is sought." Rule 56(a) mandates the entry of summary judgment upon motion after there has been adequate time for discovery "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Summary judgment is proper when the record, viewed in the light most favorable to the nonmoving party and giving that party the benefit of all reasonable inferences, shows there is no genuine issue of material fact and the moving party is therefore entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a) ; Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ; Harlston v. McDonnell Douglas Corp. , 37 F.3d 379, 382 (8th Cir. 1994). A disputed issue is "genuine" when the evidence produced "is such that a reasonable jury could return a verdict for the nonmoving party." See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is considered "material" if it "might affect the outcome of the suit under the governing law." See id. "[T]he substantive law will identify which facts are material .... Factual disputes that are irrelevant or unnecessary will not be counted." Id.
"In considering a motion for summary judgment the court does not weigh the evidence, make credibility determinations, or attempt to discern the truth of any factual issue." Great Plains Real Estate Dev., L.L.C. v. Union Cent. Life Ins. Co. , 536 F.3d 939, 944 (8th Cir. 2008) (quoting Morris v. City of Chillicothe , 512 F.3d 1013, 1018 (8th Cir. 2008) ). Rather, the court only determines whether there are any disputed issues concerning the existence of material facts and, if so, whether those disputes are genuine. See Anderson , 477 U.S. at 251–52, 106 S.Ct. 2505 ; see also Wilson v. Myers , 823 F.2d 253, 256 (8th Cir. 1987) ("Summary judgment is not designed to weed out dubious claims, but to eliminate those claims with no basis in material fact."). Summary judgment is appropriately entered against a party who has failed to make a showing sufficient to establish a genuine dispute as to the existence of an element essential to its case and upon which the party will bear the burden of proof at trial. See Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
When a summary judgment motion is filed, the moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact based on the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any. See id. at 323, 106 S.Ct. 2548 ; Anderson , 477 U.S. at 248, 106 S.Ct. 2505. If the moving party has carried its burden, the nonmoving party must then go beyond its original pleadings and designate specific facts showing that there remains a genuine issue of material fact that needs to be resolved by a trial. See Fed. R. Civ. P. 56(c). This additional showing can be by affidavits, depositions, answers to interrogatories, or admissions in the record. Id. ; Celotex Corp. , 477 U.S. at 322–23, 106 S.Ct. 2548 ; Anderson , 477 U.S. at 257, 106 S.Ct. 2505. "[T]he mere existence of some alleged factual dispute between the parties will not defeat a motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson , 477 U.S. at 247–48, 106 S.Ct. 2505. Indeed, "[t]o survive a motion for summary judgment, the nonmoving party must substantiate his allegations with sufficient probative evidence [that] would permit a finding in [his] favor based on more than mere speculation, conjecture, or fantasy." Barber v. C1 Truck Driver Training, LLC , 656 F.3d 782, 801 (8th Cir. 2011) (second and third alterations in original) (quoting Putman v. Unity Health Sys. , 348 F.3d 732, 733–34 (8th Cir. 2003) ). Mere "self-serving allegations and denials are insufficient to create a genuine issue of material fact." Anuforo v. Comm'r , 614 F.3d 799, 807 (8th Cir. 2010).
Courts do not decide whether to grant a motion for summary judgment by conducting a paper trial. Rather, a "district court's role in deciding the motion is not to sift through the evidence, pondering the nuances and inconsistencies, and decide whom to believe." Waldridge v. Am. Hoechst Corp. , 24 F.3d 918, 920 (7th Cir. 1994). In considering a motion for summary judgment, the court's task is merely to decide, based on the evidentiary record that accompanies the filings of the parties, whether there really is any genuine issue concerning a material fact that still requires a trial. See id. (citing Anderson , 477 U.S. at 249, 106 S.Ct. 2505 and 10 Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 2712 (3d ed. 1998)); see also Fed. R. Civ. P. 56(c)(3).
III. ANALYSIS
The FELA makes railroads engaged in interstate commerce "liable in damages to any person suffering injury while he is employed by such carrier in such commerce." 45 U.S.C. § 51. To recover, this injury must be the result "in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment." Id. However, "the [FELA] does not make the employer the insurer of the safety of [its] employees while they are on duty" because "[t]he basis of [the employers'] liability is [its] negligence, not the fact that injuries occur." Ellis v. Union Pac. R.R. Co. , 329 U.S. 649, 653, 67 S.Ct. 598, 91 L.Ed. 572 (1947).
Chapter 15 of the Manual of Model Civil Jury Instructions for the District Courts of the Eighth Circuit (2018) provides instruction to the Court on the interpretation of the FELA. A definition of negligence is not found within the FELA, so negligence on this federal question is defined by federal case law. Urie v. Thompson , 337 U.S. 163, 174, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949). The elements for a FELA claim are "duty, breach, foreseeability, and causation." Adams v. CSX Transp. Inc. , 899 F.2d 536, 539 (6th Cir. 1990) (quoting Robert v. Consol. Rail Corp. , 832 F.2d 3, 6 (1st Cir. 1987) ). Defendant argues that Plaintiff cannot demonstrate a genuine dispute of material fact on the elements of breach or causation.
A. Duty
Before turning to the element of breach, it is necessary to outline the duties giving rise to Plaintiff's negligence claim. Several different "employer duties have become integral parts of the FELA." Ackley v. Chi. & Nw. Transp. Co. , 820 F.2d 263, 266 n.5 (8th Cir. 1987). Two are at issue here. First, it is well-established under the FELA that employers have a continuous duty to provide their employees with "a reasonably safe place to work." Id. (citing Bailey v. Cent. V. Ry. , 319 U.S. 350, 352–53, 63 S.Ct. 1062, 87 L.Ed. 1444 (1943) ). Neither party disputes that Defendant owed this duty to Plaintiff for the duration of his employment. Second, it is also well-established in the Eighth Circuit that under the FELA, employers have "the duty to promulgate and enforce safety rules." Id. (citing Ybarra v. Burlington N., Inc. , 689 F.2d 147, 150 (8th Cir. 1982) ). Plaintiff highlights this duty in support of his assertion that there are genuine issues of material fact. Although this requirement does establish a genuine issue of material fact on the element of breach, it fails to remedy the lack of genuine dispute on the element of causation.
Several other circuits also recognize this employer duty under the FELA. See, e.g., Kruse v. Burlington N. R.R. , No. 94-8018, 1994 WL 721363, at *1 (10th Cir. Dec. 22, 1994) ; Jacobo v. United States , 853 F.2d 640, 643 (9th Cir. 1988) ; Bailey v. Grand Trunk Lines New England , 805 F.2d 1097, 1102 (2d Cir. 1986) ; Freitick v. SMS Rail Lines , 748 F. Supp. 2d 431, 434 (E.D. Pa. 2010) ("It is well settled in the Third Circuit that a railroad may be found negligent under FELA if it fails to prescribe, promulgate, and/or enforce adequate rules ... for the safe operation of its equipment, tools, machinery, and appliances.").
B. Breach
Defendant contends that Plaintiff cannot demonstrate a genuine issue of material fact on the breach element of his negligence claim because Defendant provided Plaintiff with a reasonably safe place to work, thereby satisfying the first duty discussed above. Plaintiff argues there is a genuine dispute of material fact over whether Defendant provided him with a reasonably safe workplace, claiming it was unsafe for Defendant to (1) fail to provide a spike maul to drive railroad spikes and (2) provide a sledgehammer to drive railroad spikes. Alternatively, Plaintiff submits that Defendant has failed to enforce its established safety rules. Defendant has not addressed its duty to promulgate and enforce safety rules. While Plaintiff has not met his burden of production for breach of the duty to provide a reasonably safe workplace, Defendant's apparent failure to enforce its own safety rule demonstrates a genuine dispute of material fact on the element of breach.
To establish breach, Plaintiff must show that Defendant failed to exercise reasonable care under the circumstances, "commensurate to the dangers of the business." Tiller v. Atl. Coast Line R. Co. , 318 U.S. 54, 67, 63 S.Ct. 444, 87 L.Ed. 610 (1943) (citing Hough v. Tex. & Pac. Ry. Co. , 100 U.S. 213, 218, 25 L.Ed. 612 (1879) ). The extent of Defendant's duties to provide a reasonably safe place to work and to promulgate and enforce its safety rules is measured by what is reasonably foreseeable. Gallick v. Balt. & Ohio R.R. , 372 U.S. 108, 117–18, 83 S.Ct. 659, 9 L.Ed.2d 618 (1963) ("We agree ... that reasonable foreseeability of harm is an essential element of [FELA] negligence."); Davis v. Burlington N. Inc. , 541 F.2d 182, 185 (8th Cir. 1976) (requiring plaintiff to "prove that the railroad, with the exercise of due care, could have reasonably foreseen that a particular condition could cause injury").
1. Breach of duty to provide a reasonably safe place to work
Plaintiff fails to demonstrate that his injury would have been a reasonably foreseeable result of Defendant's actions and that Defendant failed to use reasonable care in providing a reasonably safe place to work.
First, as Defendant points out, Plaintiff opined in his deposition that Defendant provided him with a reasonably safe place to work on the date of his alleged injury. Plaintiff has also stated he had the tools necessary to do the work he was asked to do on the date in question. Furthermore, when Plaintiff filled out his injury report on April 21, 2015, he indicated that the issue of whether the tools he used contributed to his injury was not applicable to his injury.
Plaintiff argues his own opinions should be inadmissible because they fail to satisfy the requirement of Federal Rule of Evidence 701 that lay opinion testimony be "helpful." Specifically, Plaintiff contends the prejudicial value of his own inexperienced opinion on workplace safety outweighs any probative value it may have to the trier of fact. The Court agrees with the Rule 701 Advisory Committee Notes regarding the 1972 proposed rules acknowledging that "the natural characteristics of the adversary system will generally lead to an acceptable result, since the detailed account carries more conviction than the broad assertion, and a lawyer can be expected to display his witness to the best advantage." In other words, the process of direct and cross-examination will serve to elucidate Plaintiff's testimony. Because Plaintiff has experience driving railroad spikes and was present on the day in question, his opinion on the workplace's safety may be helpful to a jury in clarifying his testimony, and its prejudicial value fails to substantially outweigh its probative value to a jury. Therefore, the issue is one of weight and not admissibility.
Second, although Plaintiff's liability expert opined that a sledgehammer was an improper tool because it was not long enough to spike over the rail, he offered conflicting testimony on whether the use of a sledgehammer was unsafe. Initially, he stated he did not know the purpose behind the rule and was not sure if it was unsafe to use a sledgehammer to drive spikes. He later testified he did not believe it was safe, but he seems to derive that belief from the existence of Defendant's Safety Rule 76.3.2 and not from an understanding of the risks of using a sledgehammer instead of a spike maul. Therefore, Plaintiff's theory of breach of the duty to provide a reasonably safe place to work relies on Defendant's violation of its own rule.
Railroads are not required to provide their employees with the optimal or safest tools. Hane v. Nat'l R.R. Passenger Corp. , 110 F.3d 573, 575 (8th Cir. 1997) (citing Wash. & Georgetown R.R. v. McDade , 135 U.S. 554, 570, 10 S.Ct. 1044, 34 L.Ed. 235 (1890) ). The record supports the inference that the lack of a spike maul and the provision of a sledgehammer resulted in less than optimal conditions but not that those conditions were unreasonably unsafe. Moreover, Defendant argues that the purpose of the safety rule was not to prevent back injuries but to prevent flying debris. Because the only probative evidence offered regarding the purpose of the rule involves broken sledgehammer handles and the potential for glancing blows or flying debris but not additional strain on the user's back, it is not clear that Plaintiff's injury was a reasonably foreseeable result of providing a sledgehammer for driving spikes instead of a spike maul.
The Eighth Circuit specifically addressed a railroad's failure to enforce its own safety rules in Ybarra. The court stated that "[w]hen the evidence shows that the railroad customarily does not enforce a safety rule, the jury is entitled to consider whether that custom constituted negligence and whether it caused, in whole or in part, the plaintiff's injury." 689 F.2d at 150 (citing Flanigan v. Burlington N., Inc. , 632 F.2d 880, 883–84 (8th Cir. 1980) ). And in Ybarra , the court noted that "[t]he record contain[ed] substantial evidence that it was the defendant's custom not to enforce" the safety rule at issue. Id. at 150 (noting that evidence suggested the lifting rule in question had been disregarded while conducting switch-engine servicing for at least nine years).
In the instant case, nothing in the record suggests that Safety Rule 76.3.2 was customarily not enforced. In fact, Plaintiff makes no allegations that Defendant violated Safety Rule 76.3.2 on another occasion. Therefore, Ybarra does not control with respect to the railroad's duty to provide a reasonably safe place to work. Based on the lack of evidence indicating that using a sledgehammer to drive spikes is inherently unsafe in combination with the Plaintiff's own statements that Defendant provided him a reasonably safe place to work, the Court concludes there is no genuine dispute of material fact as to whether Defendant breached its duty to provide Plaintiff a reasonably safe place to work.
2. Breach of duty to promulgate and enforce safety rules
Whether there is a genuine dispute over Defendant's breach of its duty to promulgate and enforce safety rules is a closer issue. Defendant has apparently established safety rules, but the duty imposed by the Eighth Circuit requires railroads to promulgate and enforce such rules. Ackley , 820 F.2d at 266 n.5 (citing Ybarra , 689 F.2d at 150 ). Once a railroad has promulgated safety rules, "the employee is generally entitled to rely on these safety rules as the appropriate standard of conduct." Bailey , 805 F.2d at 1102. The record supports the inference that Plaintiff used a sledgehammer to drive spikes made of soft steel in direct violation of Defendant's Safety Rule 76.3.2 and that his track supervisor was aware of the violation. It is unclear if the injury was a reasonably foreseeable result of this lack of enforcement. Viewing the record in the light most favorable to the nonmoving party, as it must, the Court concludes Plaintiff has satisfied its burden of production on the element of breach in relation to Defendant's duty to enforce its own safety rules.
C. Causation
In order to survive a motion summary judgment, Plaintiff must "produce admissible evidence that [Defendant]'s negligence played a part in causing his alleged injury." Brooks v. Union Pac. R.R. Co. , 620 F.3d 896, 899 (8th Cir. 2010). Defendant moves to bar Dr. McGuire's testimony regarding causation, prognosis, and permanency as unreliable under Rule 702 and Daubert v. Merrell Dow Pharm. Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Defendant argues that without Dr. McGuire's testimony regarding causation, Plaintiff has not raised a genuine issue of material fact and Defendant is entitled to summary judgment as a matter of law.
The test for causation under the FELA is whether the railroad's negligence "played any part, even the slightest, in producing the injury." CSX Transp., Inc. v. McBride , 564 U.S. 685, 703, 131 S.Ct. 2630, 180 L.Ed.2d 637 (2011) (quoting Rogers v. Mo. Pac. R.R. Co. , 352 U.S. 500, 506, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957) ). Thus, "the plaintiff carries only a slight burden on causation." Paul v. Mo. Pac. R.R. Co. , 963 F.2d 1058, 1061 (8th Cir. 1992) ; see Heater v. Chesapeake & Ohio Ry. Co. , 497 F.2d 1243, 1246 n.1 (7th Cir. 1974) (noting that "the quantum of proof necessary to establish [causation is] to the vanishing point"). "The fact that there may have been a number of causes of the injury is, therefore, irrelevant as long as one cause may be attributable to the railroad's negligence." Heater , 497 F.2d at 1246–47. The Eighth Circuit has held "[the court] should be cautious about overly limiting the jury's consideration of fault and causation in FELA cases when the medical testimony is ambiguous." Villa v. Burlington N. & Santa Fe Ry. Co. , 397 F.3d 1041, 1045–46 (8th Cir. 2005).
"In FELA cases, ‘[e]xpert evidence is often required to establish the causal connection between the accident and some item of physical or mental injury unless the connection is a kind that would be obvious to laymen, such as a broken leg from being struck by an automobile.’ " Brooks , 620 F.3d at 899 (quoting Moody v. Maine Cent. R.R. Co. , 823 F.2d 693, 695 (1st Cir. 1987) ). In a case such as this in which the alleged injury has "no obvious origin, ‘[e]xpert testimony is necessary to establish even that small quantum of causation required by FELA." Id. (alteration in original) (quoting Claar v. Burlington N. R.R. Co. , 29 F.3d 499, 504 (9th Cir. 1994) ); see also Moody , 823 F.2d at 695 ("Where the conclusion [of causation] is not one within common knowledge, expert testimony may provide a sufficient basis for it, but in the absence of such testimony it may not be drawn." (alteration in original) (citing W.P. Keeton, Law of Torts 269 (5th ed. 1984))). The proponent of the proffered expert testimony bears the burden of establishing its admissibility by a preponderance of the evidence. Daubert , 509 U.S. at 592 n.10, 113 S.Ct. 2786 (citing Bourjaily v. United States , 483 U.S. 171, 175–76, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987) ).
1. Rule 702 and Daubert
Rule 702 allows expert testimony "if ... the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue." Fed. R. Evid. 702. While subject to "[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof," expert testimony "can be both powerful and quite misleading" to the jury. Daubert , 509 U.S. at 595–96, 113 S.Ct. 2786. Thus, the Court takes great care in deciding whether an expert witness's testimony should be admitted. In determining whether an expert should be allowed to testify under Rule 702, the Court must determine whether "the reasoning or methodology underlying the testimony is scientifically valid and ... whether that reasoning or methodology properly can be applied to the facts in issue." Daubert , 509 U.S. at 592–93, 113 S.Ct. 2786. Essentially, the district court has a "gatekeeping" function to ensure that the expert testimony is not only relevant but reliable. Kumho Tire Co. v. Carmichael , 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) ; see Daubert , 509 U.S. at 589, 113 S.Ct. 2786. The Court focuses on the "principles and methodology, not on the conclusions that [experts] generate." Kuhn v. Wyeth Inc. , 686 F.3d 618, 625 (8th Cir. 2012) (quoting Daubert , 509 U.S. at 595, 113 S.Ct. 2786 ).
Daubert 's holding applies to all expert testimony. Kumho Tire Co. , 526 U.S. at 141, 119 S.Ct. 1167. "[N]othing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert." Gen. Elec. Co. v. Joiner , 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). "A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered." Id. "If [an expert's] opinion is based on simple common sense, it is not helpful; the jury does not need expert opinion because its [own] common sense will suffice." In re Mirena IUD Prods. Liab. Litig. , 169 F. Supp. 3d 396, 484 (S.D.N.Y. 2016). Furthermore, a causation opinion cannot be based on a "subjective belief or unsupported speculation." Kannankeril v. Terminix Int'l, Inc. , 128 F.3d 802, 806 (3d Cir. 1997) (quoting In re Paoli R.R. Yard PCB Litig. , 35 F.3d 717, 742 (3d Cir. 1994) ).
For expert testimony to be reliable, it must be based on scientific knowledge derived from a valid scientific method, in other words, the testimony must have "good grounds." Daubert , 509 U.S. at 590, 113 S.Ct. 2786. Four factors important to the reliability of the methodology are "(1) whether the expert's methodology has been tested; (2) whether the technique has been subjected to peer review and publication; (3) whether the technique has a known or knowable rate of error; and (4) whether the technique has been generally accepted in the proper scientific community." Turner v. Iowa Fire Equip. Corp. , 229 F.3d 1202, 1207–08 (8th Cir. 2000) (citing Daubert , 509 U.S. at 593–94, 113 S.Ct. 2786 ). However, "[t]his evidentiary inquiry is meant to be flexible and fact specific, and a court should use, adapt, or reject Daubert factors as the particular case demands." Unrein v. Timesavers, Inc. , 394 F.3d 1008, 1011 (8th Cir. 2005) (citing Kumho Tire Co. , 526 U.S. at 141–42, 119 S.Ct. 1167 ). 2. Reconciling Daubert and the FELA
There is obvious tension between Daubert 's requirement that a causation opinion be reliable and relevant and the FELA's minimal causation standard. See In re Conrail Toxic Tort FELA Litig. , No. CIV. A 94-11J, CIV. A 94-4J, 1998 WL 465897, at *5–6 (W.D. Pa. Aug. 4, 1998) (examining whether the Daubert admissibility standard applies in FELA cases and concluding it does); see also Claar , 29 F.3d at 503–04 ; see generally David Kriewaldt, The Effect of FELA/Jones Act's Substantive Standard of Causation on the Daubert Standard for Admissibility of Expert Testimony , 22 U.S.F. Mar. L.J. 1 (2010). The Eighth Circuit has not yet addressed this issue; however, this Court believes that Judge Eisele's opinion in Savage v. Union Pacific R.R. Co. , 67 F. Supp. 2d 1021 (E.D. Ark. 1999), recognizes and effectively resolves this tension.
In Savage , the court noted that Daubert applies in FELA cases because they "are distinct issues and do not affect one another." Id. at 1029 (quoting Claar , 29 F.3d at 503 ). Judge Eisele observed that while the causation standard under the FELA is minimal, it does not "mean that in FELA cases courts must allow expert testimony that in other contexts would be inadmissible." Id. at 1029 (quoting Claar , 29 F.3d at 503 ). "Thus, if the expert's conclusion—or any inferential link that undergirds it—fails under Daubert to provide any evidence of causation, it must be excluded ...." Id. at 1028 (quoting In re Conrail , 1998 WL 465897, at *6 ). This Court adopts Judge Eisele's conclusions regarding Daubert and the FELA that the low threshold for causation under the FELA does not affect the Daubert standards for a reliable methodology. Thus, the Court will analyze the reasoning and methodology behind Dr. McGuire's causation opinion to see if it is reliable under Daubert.
3. Using a differential diagnosis as a reliable methodology
"A treating physician's expert opinion on causation is subject to the same standards of scientific reliability that govern the expert opinions of physicians hired solely for purposes of litigation." Turner , 229 F.3d at 1207 (citing Kumho Tire Co. , 526 U.S. at 151, 119 S.Ct. 1167 ); see McCann v. Il. Cent. R.R. Co. , 711 F. Supp. 2d 861, 868–69 (C.D. Ill. 2010) (examining other FELA cases in the Seventh Circuit in which treating physicians giving causation opinions were subject to Daubert ). Most courts have held that a causation opinion based on a differential diagnosis is a methodology that satisfies the Daubert reliability factors. Turner , 229 F.3d at 1207–08. "[A] physician begins [a differential diagnosis] by ‘ruling in’ all scientifically plausible causes of the plaintiff's injury. The physician then ‘rules out’ the least plausible causes of injury until the most likely cause remains." Glastetter v. Novartis Pharm. Corp. , 252 F.3d 986, 989 (8th Cir. 2001). A differential diagnosis is presumptively admissible, so the "district court may exercise its gatekeeping function to exclude only those diagnoses that are scientifically invalid." Id. A differential diagnosis does not need to rule out all other possible causes to be admissible under Daubert. See Berg v. Johnson & Johnson , 940 F. Supp. 2d 983, 989–91 (D.S.D. 2013) ; see also Heller v. Shaw Indus. Inc. , 167 F.3d 146, 156 (3d Cir. 1999) ("A medical expert's causation conclusion should not be excluded because he or she has failed to rule out every possible alternative cause of a plaintiff's illness."). But if it does not consider any other causes, it "cannot, by definition, be reliable." Berg , 940 F. Supp.2d at 990 (analyzing Bland v. Verizon Wireless L.L.C. , 538 F.3d 893 (8th Cir. 2008) ). The Eight Circuit's decision in Kudabeck v. Kroger Co. , 338 F.3d 856 (8th Cir. 2003), illustrates what a proper differential diagnosis looks like under the Daubert reliability standard. In Kudabeck , the plaintiff slipped and fell on a wet floor in the defendant's store, which resulted in back pain and discomfort. Id. at 857. A week later, the plaintiff visited her chiropractor who took x-rays that revealed problems with the plaintiff's lumbar and cervical vertebrae areas. Id. The chiropractor determined that the plaintiff's fall had caused her pain. Id. at 858. The defendant appealed the district court's decision denying a motion in limine that would have blocked the chiropractor's testimony as unreliable under Daubert and Rule 702 on the basis that the chiropractor had only relied on the plaintiff's word as to what caused her injury and did not exclude other factors that might have contributed to the plaintiff's degenerative disc disease. Id. at 860.
The Eighth Circuit upheld the district court's decision to deny the motion in limine, concluding that during the chiropractor's initial examination of the plaintiff, he had ruled out alternative causes of the plaintiff's pain through various medical tests, such as arthritis through x-ray scans, infection because a lack of fever and no redness in the back, other possible sources of pain through orthopedic tests, and genetic sources from a complete medical history. Id. at 857–58, 861. The court determined that the defendant's objection to the completeness of the chiropractor's differential diagnosis went to the weight and not the admissibility of his testimony. Id. at 861. Specifically, the Kudabeck court distinguished the chiropractor's reliable differential diagnosis, which considered possible causes and then ruled those causes out with different medical tests and examinations, in part, from the Eighth Circuit's previous decision in Turner , in which the doctor's testimony was excluded under Daubert because the doctor had made no attempt to consider other possible causes of the plaintiff's injury. Id. at 861.
In contrast, the Seventh Circuit's decision in Myers v. Illinois Central Railroad Co. , 629 F.3d 639 (7th Cir. 2010), illustrates how an improper differential diagnosis fails to satisfy Daubert 's reliability standard in a FELA case. In Myers , the plaintiff claimed cumulative trauma disorder affecting his elbow, knee, back, and neck was caused by the railroad's failure to provide a reasonably safe workplace and sued under the FELA. Id. at 640–41. The plaintiff then presented the testimony of his three treating physicians regarding the connection of the plaintiff's cumulative injuries to the railroad's failure to provide a safe workplace. Id. at 641. The Seventh Circuit affirmed the district court's decision to bar the expert testimony under Daubert as unreliable because the plaintiff's treating physicians "knew little to nothing" of the plaintiff's medical history or his work on the railroad. Id. at 645. While the plaintiff there claimed his doctors had engaged in a differential diagnosis, the court found there was no record that showed the doctors had ruled in and ruled out potential causes of the plaintiff's injury. Id. at 644. The Myers court concluded that reliable expert causation testimony under Daubert requires more than simply identifying the appropriate treatment for the plaintiff's injuries or assuming that the injuries stemmed from the plaintiff's work. Id. at 645. The Myers court characterized the plaintiff's doctors' causation testimony "as a hunch or an informed guess" and determined that "the courtroom is not the place for scientific guesswork." Id. at 645 (quoting Rosen v. Ciba-Geigy Corp. , 78 F.3d 316, 319 (7th Cir. 1996) ). While the type of injuries in Myers are different from the case at bar, the underlying concept for a proper differential diagnosis consists of the same considerations. 4. Application
The Court concludes Dr. McGuire's causation testimony does not meet the reliability threshold of Daubert. Dr. McGuire did not review Plaintiff's deposition, nor is it shown in the record that Dr. McGuire had any medical history beyond his previous treatment of Plaintiff. Additionally, Plaintiff only told Dr. McGuire that he had a heavy day at work without going into the details of his day of work or even how the injury occurred. ECF No. 44-2 at 90–91. Like in Myers and unlike in Kudabeck , there is no record in Dr. McGuire's deposition that he conducted a differential diagnosis that ruled in the possible causes and then ruled out any of those other causes until the most likely one remained. Nor does there appear to be a different scientific methodology that Dr. McGuire used in forming his causation opinion that would satisfy the reliability prong of Daubert. Even if a differential diagnosis was conducted, Dr. McGuire had an insufficient basis to "rule in" potential causes because he had an inadequate medical history for Plaintiff.
Plaintiff makes four general arguments in response to Defendant's arguments. First, Dr. McGuire had an eight-to-ten-page document that contained a description of the duties of a laborer employed by Defendant. Second, it is unnecessary to understand the type of forces imparted onto his spine because anything can cause a herniated disc. Third, the use of hypotheticals is enough to establish causation. Fourth, Dr. McGuire could testify to a reasonable degree of medical certainty that swinging a heavy sledgehammer would be a competent cause of Plaintiff's injury.
Dr. McGuire's deposition testimony reveals that he only glanced at the duty description document and did not review it for his deposition to be able to render a causation opinion. ECF No. 44-2 at 19. Additionally, Dr. McGuire did not know if the job description did in fact apply to what Plaintiff did for Defendant. Id. at 32. And even if it did apply to Plaintiff's work, Dr. McGuire did not know of the specific details of the incident that lead to Plaintiff's injury that could make the use of this document reliable. Id. at 24. The document could not give Dr. McGuire an adequate understanding of Plaintiff's work history; it could only put Dr. McGuire's knowledge of Plaintiff's work history at a similar level to the doctors' knowledge in Myers , which the Seventh Circuit concluded was "something less than a causation opinion that could qualify under Daubert. " Myers , 629 F.3d at 645.
Further, the fact that almost anything can cause a herniated disk emphasizes the need for a thorough differential diagnosis that rules in and out the different possible causes. Even if Dr. McGuire's statement that "almost anything can cause a disk to herniate," ECF No. 48-3 at 135, can be counted as "ruling in" potential causes, there is still no evidence that he systematically ruled out any possibilities to get to a determination of what most likely caused Plaintiff's injury. Instead, it appears that Dr. McGuire simply treated Plaintiff's injury and assumed that a hard day at work had caused it, similar to what occurred in Myers. See Myers , 629 F.3d at 645 ("The physicians' testimonies made it clear that they were offering a general medical opinion about his condition at the time of treatment and an assumption that it developed over time at the Railroad. Other than common sense, there was no methodology to their etiology.").
At his deposition Dr. McGuire testified, "I may be off on the definition of causation. I have a pretty simple definition. Patient comes in and tells me a story.... I don't interrogate them. Okay, Bob, whatever you tell me, and I try to proceed from there." ECF No. 44-2 at 36.
To support the use of hypotheticals as a reliable scientific methodology, Plaintiff cites to Cowden v. BNSF Railway Co. , 980 F. Supp. 2d 1106, 1126 (E.D. Mo. 2013), in which the district court denied the defendant's motion in limine to bar the expert causation testimony of a physician who had conducted a medical examination of the plaintiff in that case. In that case, the examining physician "[f]ormed [his] opinion to a reasonable degree of medical certainty ... along with a differential diagnosis and exclusion of other possible causes. " Id. at 1125 (emphasis added). The court held that the examining physician's testimony was more than a "hunch" or an "informed guess" and that the physician had used a reliable methodology. Id. at 1126. Plaintiff also cites to a case decided in this district for support. See White v. Union Pac. R.R. Co. , No. 4-12-CV-00453, 2014 WL 12495346 (S.D. Iowa Sept. 9, 2014). There, the court rejected the defendant's Daubert motion and concluded the plaintiff's doctor's testimony was reliable and thus could offer assistance to the jury. Id. at *10. The court relied on the facts that the plaintiff's doctors had completed a differential diagnosis by ruling out as many causes of the plaintiff's injury as possible based on a personal examination, had reviewed the plaintiff's medical records, had considered information regarding the plaintiff's working conditions, and had reviewed scientific research. Id. at *9–11. Here, Dr. McGuire never conducted a differential diagnosis to answer counsel's hypotheticals, which distinguishes Cowden and White from the case at bar.
Neither Defendant nor the Court questions Dr. McGuire's qualifications to testify as an expert in this case. Rather, the question on this Daubert motion is if Dr. McGuire used a reliable scientific methodology, such as a differential diagnosis, in coming to a reasonable degree of medical certainty to allow his causation opinion to be admissible. There is no evidence that Dr. McGuire conducted a differential diagnosis. If he had conducted a differential diagnosis and considered any other potential causes of Plaintiff's injury, then it would be a question of what weight should be given to his causation opinion. But in this case, Dr. McGuire did not consider any other potential causes of Plaintiff's herniated disk and merely accepted Plaintiff's story about what happened. Dr. McGuire also did not have a complete understanding of Plaintiff's previous medical history and had little to no understanding what Plaintiff's work for Defendant truly consisted of. Thus, there is no reliable basis for Dr. McGuire's opinion on causation.
Because Dr. McGuire did not conduct a reliable scientific methodology, the Court is effectively left with Dr. McGuire's bare qualifications or his ipse dixit as the sole reason to admit his causation opinion. The Court cannot rely exclusively on the ipse dixit or the bare qualifications of Dr. McGuire. The analytical gap from the limited resources Dr. McGuire utilized to the causation opinion proffered is too great for it to be admissible under Rule 702 and Daubert . See Joiner , 522 U.S. at 146, 118 S.Ct. 512. Furthermore, a common-sense causation opinion from Dr. McGuire would not be helpful to a jury. Members of a jury possess their own common sense, and an expert's causation opinion based on common sense can only serve to mislead a jury. See In re Mirena IUD Prods. Liab. Litig. , 169 F. Supp. 3d at 484. Because Plaintiff cannot prove by a preponderance of the evidence that Dr. McGuire's causation opinion is admissible, Defendant's Motion to Bar Expert Testimony is granted.
Expert causation testimony is required in this case because Plaintiff's alleged injury has "no obvious origin." Brooks , 620 F.3d at 899. Without Dr. McGuire's causation testimony, Plaintiff has failed to provide any "admissible evidence that [Defendant]'s negligence played a part in causing his alleged injury." Id. Thus, Plaintiff cannot meet his burden of production to overcome Defendant's Motion for Summary Judgment on the element of causation, and Defendant is entitled to summary judgment as a matter of law.
Given the Court's conclusion regarding the admissibility of Dr. McGuire's causation testimony, the Court does not reach the issues of whether Dr. McGuire's testimony regarding prognosis and permanency is admissible.
IV. CONCLUSION
For the foregoing reasons, Defendant's Motion to Bar Expert Testimony of Dr. McGuire (ECF No. 43) and Defendant's Motion for Summary Judgment (ECF No. 42) are GRANTED.
IT IS SO ORDERED.