Ackman v. Union Pac. R.R. Co.

• Citation: 556 S.W.3d 80
• Decision Date: 29 May 2018
• Docket Number: No. ED 105794,ED 105794
• Parties: Steven D. ACKMAN, Appellant, v. UNION PACIFIC RAILROAD COMPANY, Respondent.
• Court: Court of Appeal of Missouri (US)

556 S.W.3d 80

Steven D. ACKMAN, Appellant,

v.UNION PACIFIC RAILROAD COMPANY, Respondent.

No. ED 105794

Missouri Court of Appeals, Eastern District, Division Three.

Filed: May 29, 2018

Motion for Rehearing and/or Transfer to Supreme Court Denied July 5, 2018

Application for Transfer Denied September 25, 2018

Leonard P. Cervantes, Jennifer Suttmoeller, Co-Counsel, 1007 Olive Street, 4^th Floor, Saint Louis, MO. 63101, for appellant.

Nicholas J. Lamb, David A. Dick, Co-Counsel, One U.S. Bank Plaza, St. Louis, MO. 63101, for respondent.

Opinion

Angela T. Quigless, J.

Steven D. Ackman ("Ackman") appeals from the order and judgment of the Circuit Court of the City of St. Louis granting summary judgment in favor of the defendant, Union Pacific Railroad Company ("Union Pacific"). In the underlying case, Ackman brought suit under the Federal Employers' Liability Act ("FELA") against Union Pacific for injuries arising out of Union Pacific’s alleged negligence. The trial court granted summary judgment in favor of Union Pacific on the grounds that Ackman failed to demonstrate the existence of a genuine issue of material fact regarding the element of causation. Finding no error, we affirm.

Factual and Procedural History

We view the record in the light most favorable to the party against whom summary judgment was entered, which is Ackman. Berndsen v. Flagstar Bank, FSB , 193 S.W.3d 828, 829–30 (Mo. App. E.D. 2006).

Ackman brought suit against Union Pacific under FELA for cumulative injuries he suffered while working within the scope of his duties as a machine operator. Ackman alleged he was "exposed to repetitive traumas to his back and the structures therein" due to the repeated stress of riding on Union Pacific’s equipment. Ackman alleged riding long distances on Union Pacific’s backhoes caused Ackman "to develop a degenerative and/or trauma condition of his spine and the structures therein, including the nerves to his legs."

The parties entered into an agreed upon Scheduling Order in which Ackman was required to disclose expert witnesses and produce the experts for deposition. In compliance with the Scheduling Order, Ackman disclosed two of his treating physicians, Dr. Crooks and Dr. Silvers, as non-retained expert witnesses who "may" be called to testify at trial. However, Ackman never deposed Dr. Crooks or Dr. Silvers. Ackman did not disclose any other medical experts.

Union Pacific subsequently moved for summary judgment on the grounds that Ackman failed to produce evidence from a medical causation expert establishing his injuries were caused by the work he performed for Union Pacific. Union Pacific asserted the only expert witnesses identified to establish causation, Dr. Crooks and Dr. Silvers, failed to disclose any such opinion. Union Pacific also asserted the medical records of Ackman’s other treating physicians—Drs. Albano, McGarry, and Doll—do not link Ackman’s alleged injuries to his work for Union Pacific. As such, Union Pacific argued it was entitled to judgment as a matter of law because Ackman could not establish the causation element of his FELA claim.

In its statement of uncontroverted material facts, Union Pacific made the following factual allegations relevant to this appeal: (1) Dr. Albano’s medical records do not state that Ackman’s alleged back problems were caused by his work for Union Pacific; (2) Dr. McGarry’s medical records do not state that Ackman’s alleged back problems were caused by his work for Union Pacific; (3) Dr. Doll’s medical records do not state that Ackman’s alleged back problems were caused by his work for Union Pacific; (4) None of these doctors' records link Ackman’s alleged back problems to his work for Union Pacific in any way; (5) No doctor has ever told Ackman that his work on the railroad caused or contributed to his back pain; (6) Dr. Crooks' medical records do not state that Ackman’s alleged back condition was caused by his work for Union Pacific; and (7) Dr. Silvers' medical records do not state that Ackman’s alleged back condition was caused by his work for Union Pacific. In support, Union Pacific attached copies of each doctor’s medical records.

Ackman filed a response to Union Pacific’s statement of uncontroverted material facts.¹ Ackman admitted the medical records of the five doctors listed above do not state his back problems were caused by his work for Union Pacific. Ackman also admitted the medical records do not link his alleged back problems to his work for Union Pacific in any way. However, Ackman denied that no doctor had ever told him his work on the railroad caused or contributed to his back pain. In support of the denial, Ackman attached a copy of his own Affidavit in which he stated, "At no time did a doctor ever tell me that any of my back problem symptoms were caused by work on the railroad, until approximately 2013." The Affidavit did not identify the doctor.

Following a hearing, the trial court granted summary judgment in favor of Union Pacific, concluding Ackman failed to demonstrate the existence of a genuine issue of material fact regarding the element of causation. Ackman now appeals.

Point Relied On

In his sole point on appeal, Ackman argues the trial court erred in granting Union Pacific’s motion for summary judgment on the issue of medical causation evidence because there were genuine issues of material fact regarding whether or not Ackman had medical evidence linking Union Pacific’s negligence and Ackman’s injuries. Specifically, Ackman argues summary judgment was inappropriate because (1) the medical report of Dr. Doll supported a causal connection between operating a backhoe for many years and the development of severe back pain, and (2) the medical record of Dr. Crooks supported that Ackman’s back pain began many years ago due to operating heavy equipment for his job.

Standard of Review

We review the entry of summary judgment de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp. , 854 S.W.2d 371, 376 (Mo. banc 1993). Summary judgment is appropriate where the moving party has demonstrated there is no genuine issue as to any material fact, and it is entitled to judgment as a matter of law. Rule 74.04(c)(6);² Wilson v. Union Pac. R.R. Co. , 509 S.W.3d 862, 869 (Mo. App. E.D. 2017). The record is viewed in the light most favorable to the party against whom judgment was entered. Storey v. RGIS Inventory Specialists, LLC , 466 S.W.3d 650, 654 (Mo. App. E.D. 2015).

Where the movant is the defending party—as in this case—the movant may establish a prima facie right to summary judgment by: (1) showing facts negating any one of the elements of the non-movant’s claim; (2) demonstrating that the non-movant, after an adequate period of discovery, has not been able and will not be able to produce evidence sufficient to allow the trier of fact to find the existence of any one of the non-movant’s elements; or (3) establishing that there is no genuine dispute as to the existence of each of the facts necessary to support the movant’s properly pleaded affirmative defense. Diehl v. Fred Weber, Inc. , 309 S.W.3d 309, 317 (Mo. App. E.D. 2010).

Once the movant has established a right to judgment as a matter of law, the burden shifts to the non-moving party—here, Ackman—to "create a genuine dispute by supplementing the record with competent materials that establish a plausible, but contradictory, version of at least one of the movant’s essential facts." ITT Commercial Fin. Corp. , 854 S.W.2d at 382. In responding to a motion for summary judgment, the non-movant "may not rest upon the mere allegations or denials of the party’s pleading." Rule 74.04(c)(2); Strable v. Union Pac. R.R. Co. , 396 S.W.3d 417, 425 (Mo. App. E.D. 2013). Rather, "the response shall support each denial with specific references to discovery, exhibits or affidavits that demonstrate specific facts showing that there is a genuine issue for trial." Rule 74.04(c)(2). Facts contained in affidavits or otherwise in support of a party’s motion are accepted as true unless contradicted by the non-moving party’s response to the summary judgment motion. Goerlitz v. City of Maryville , 333 S.W.3d 450, 453 (Mo. banc 2011). We will affirm the trial court’s judgment if it is sustainable on any theory. Curtis v. James , 459 S.W.3d 471, 475 (Mo. App. E.D. 2015).

Discussion

Unlike a typical workers' compensation scheme, which provides relief without regard to fault, FELA provides a statutory cause of action sounding in negligence. Norfolk S. Ry. Co. v. Sorrell , 549 U.S. 158, 165, 127 S.Ct. 799, 166 L.Ed.2d 638 (2007). FELA provides in pertinent part:

Every common carrier by railroad while engaging in commerce ... shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce ... for such injury ... resulting 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.

45 U.S.C. § 51.

It is well-established that FELA cases adjudicated in state courts are subject to state procedural rules, but the substantive law governing them is federal. St. Louis Sw. Ry. Co. v. Dickerson , 470 U.S. 409, 411, 105 S.Ct. 1347, 84 L.Ed.2d 303 (1985) ; Cameron v. Norfolk & W. Ry. , 891 S.W.2d 495, 498 (Mo. App. E.D. 1994) ; Morgan v. Union Pac. R.R. Co. , 368 S.W.3d 219, 222 (Mo. App. E.D. 2012). To recover under FELA, the plaintiff must demonstrate (1) the employer had a duty to provide him with a reasonably safe place to work; (2) the employer breached its duty of care; (3) this lack of due care played some part in causing the plaintiff’s injury; and (4) the plaintiff’s injury was reasonably foreseeable. Morgan , 368 S.W.3d at 222 (citing Euton v. Norfolk & W. Ry. Co. , 936 S.W.2d 146, 150 (Mo. App. E.D. 1996) ). The absence of the third element—causation—formed the basis...