Asmussen v. CSX Transp., Inc., No. 814, Sept. Term, 2019

CourtCourt of Special Appeals of Maryland
Writing for the CourtKehoe, J.
Citation237 A.3d 908,247 Md.App. 529
Docket NumberNo. 814, Sept. Term, 2019
Decision Date10 September 2020
Parties Paul ASMUSSEN v. CSX TRANSPORTATION, INC.

247 Md.App. 529
237 A.3d 908

Paul ASMUSSEN
v.
CSX TRANSPORTATION, INC.

No. 814, Sept. Term, 2019

Court of Special Appeals of Maryland.

September 10, 2020


Argued by John Amato (Goodman, Meagher & Enoch, LLP, Baltimore, MD, R. Joseph Hrubiec, Napoli Shkolnik, LLC, Wilmington, DE), on the brief for Appellant.

Argued by Amy Askew (John A. Bourgeois, Bradley M. Strickland, Kramon & Graham PA, Baltimore, MD.), on the brief for Appellee.

Panel: Kehoe, Berger, Shaw Geter, JJ.

Kehoe, J.

247 Md.App. 533

After he was diagnosed with kidney cancer, Paul Asmussen sued his former employer, CSX Transportation, Inc. ("CSX"). Asmussen's claim, brought under the Federal Employers’ Liability Act ("FELA"), alleged that his cancer had been caused by exposure to toxic agents during the eleven-year period in which he worked as a trackman for CSX.

At the close of discovery, Asmussen was at risk of losing critical expert witnesses, and so he moved to extend the deadline for expert-witness designations and for the completion of discovery by modifying the operative scheduling order for the case. The Circuit Court for Baltimore City, the Honorable Lawrence P. Fletcher-Hill presiding, denied this motion to modify. Additionally, the court granted CSX's motions to strike two of Asmussen's experts and, ultimately, a motion for summary judgment in favor of CSX.

247 Md.App. 534

Asmussen's appeal challenges the circuit court's disposition of all these motions. He presents three issues, which we have reworded:

1. Did the circuit court abuse its discretion when it denied Asmussen's motion to modify the scheduling order?

2. Did the circuit court abuse its discretion when it granted CSX's motions to strike two of Asmussen's expert witnesses?

3. Did the circuit court err in granting CSX's motion for summary judgment?1

Because the answer to each of these questions is no, we affirm the circuit court's judgment.

Background

The facts of this case are well known to the parties. Our summary is brief — at

237 A.3d 911

least compared to the thorough 1,265-page record extract generated for this appeal. Additional facts are incorporated into our analysis as needed.

Asmussen's work, his injury, and his lawsuit

Asmussen worked as a trackman for CSX from 1977 to 1988. His duties included, among other things, dumping new ballast (quartz-containing crushed rock) along the tracks. This was grueling work, performed between March and July of each year. In the earlier years of his employment, Asmussen had to tug on thirty-foot chains to open the doors of the hopper cars carrying the ballast. Later on, he used a come-along winch to regulate the flow. On average, it took Asmussen

247 Md.App. 535

five to six hours to dump six to ten carloads of ballast each day.

To limit his exposure to the dust produced by dumping ballast, Asmussen wore safety goggles, a wet bandana and, later, a company-provided paper respirator. But at day's end, Asmussen was still covered with dust—and full of it too. Each afternoon, he took a shower and blew out the dust that had formed into a paste-like substance in his nose.

Asmussen's employment with CSX exposed him to some other potentially harmful substances. Rail-repair work required him to heat rails by burning diesel-soaked wicks laid alongside them. Asmussen inhaled smoke from the burning wicks. Asmussen was also exposed to creosote—by vapor inhalation and skin contact—when handling new rail ties.

In November 2015, almost three decades after he left CSX, Asmussen was diagnosed with kidney cancer. Two months later, he had his right kidney removed.

On March 6, 2018, Asmussen sued CSX in the Circuit Court for Baltimore City. His complaint alleged a violation of the FELA, a federal law that imposes liability on railroads (engaged in interstate commerce) for negligence that injures or kills employees. See 45 U.S.C. § 51 (2018). Asmussen claimed that as a result of CSX's negligence, he had been exposed to several toxic agents during his employment—including silica, which is found in quartz-containing ballast. As a "direct and proximate result" of this exposure, Asmussen alleged, he had developed cancer.

Scheduling order and expert-witness designations

The operative scheduling order in the case was issued by the circuit court on July 10, 2018. The order, as amended on August 24, 2018, fixed the following important dates:

October 10, 2018: Deadline to designate Asmussen's experts.

January 9, 2019: Deadline to designate CSX's experts.

February 9, 2019: Deadline to designate Asmussen's rebuttal experts.
247 Md.App. 536
March 11, 2019: Deadline for all discovery, including full resolution of discovery disputes.

April 11, 2019: Deadline for dispositive motions, motions to exclude expert testimony, and requests for a Frye–Reed hearing to determine the admissibility of science-based expert testimony.

July 10, 2019: Pretrial conference.

August 12, 2019: Trial to begin.

The scheduling order required that all expert-witness designations include the information specified in Md. Rule 2-402(g).2

237 A.3d 912

By its terms, the order was subject to modification upon written motion filed within fifteen days of the order's date. Thereafter, the scheduling order could still be modified, but "only upon a written motion for modification setting forth a showing of good cause that the schedule cannot reasonably be met despite the diligence of the parties seeking modification."

Asmussen served his expert-witness designation on CSX on the last possible date permitted under the scheduling order: October 10, 2018. The designation identified four expert witnesses: Drs. Joseph Regna, James Dahlgren, Christopher Runz, and Patrick Shanahan. The designation did not provide any concrete expert-specific information. It simply notified CSX, in broad strokes, that

[o]ne or more of [the four listed] experts may offer their opinions about the cause, diagnosis, prognosis and permanency of, and the treatment rendered for, any injuries the Plaintiff suffered in the occurrence at issue in this action
247 Md.App. 537
and the reasonableness and necessity of the medical treatment received and the damages incurred as a result thereof. The experts may base those opinions on training, knowledge, expertise, experience, pleadings, discovery responses, medical records, testimony and any other information available.

Believing this vague expert-witness designation did not comply with the requirements of Md. Rule 2-402(g), counsel for CSX emailed Asmussen's counsel on October 23, 2018, to request additional information. On November 8, Asmussen served an amended expert-witness designation. The designation identified Drs. Regna and Dahlgren as causation witnesses, noting that they were "expected to testify that Mr. Asmussen's kidney cancer was caused by exposure to one or more [t]oxic [a]gents" but that, at the time of designation, the doctors "require[d] additional information, including [safety data] for the ballast and Mr. Asmussen's deposition testimony, before the precise [t]oxic [a]gent(s) that caused Mr. Asmussen's [k]idney [c]ancer c[ould] be identified." Dr. Runz, now identified as one of Asmussen's treating physicians, was "expected to testify that Mr. Asmussen was diagnosed with [k]idney [c]ancer, the prognosis [and] the treatment options for Mr. Asmussen's kidney cancer, and that the treatment rendered for Mr. Asmussen's kidney cancer, and expenses related thereto, was reasonable and necessary." Dr. Shanahan was not included in the amended designation.

For all three experts, Asmussen "reserve[d] the right to supplement" their designations. Asmussen also "reserve[d] the right" to call any other of his treating physicians "to testify at trial as expert witnesses consistent with their reports."

CSX remained dissatisfied with Asmussen's expert-witness designations and, on November 21, 2018, filed a motion to compel additional disclosures. The thrust of CSX's argument was that the amended designations still required CSX to play a "guessing game" as to who would ultimately testify and what these witnesses would say. The circuit court, the Honorable

247 Md.App. 538

Audrey J. S. Carrión presiding, denied this motion without explanation.

Down to the wire

On January 22, 2019, Asmussen's counsel sent an email proposing dates for the

237 A.3d 913

depositions of Drs. Regna and Runz, saying that each doctor was available the week of February 18 and the week of February 25. In the same email, Asmussen's counsel withdrew Dr. Dahlgren from the list of designated plaintiff's experts. Counsel said he would submit...

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16 practice notes
  • Romeka v. RadAmerica II, LLC, 1207, Sept. Term, 2020
    • United States
    • Court of Special Appeals of Maryland
    • April 27, 2022
    ...217 (2021). The decision to grant a motion for summary judgment is one of law, which we review de novo . Asmussen v. CSX Transp., Inc ., 247 Md. App. 529, 558, 237 A.3d 908 (2020). " ‘We 254 Md.App. 440 review the record in the light most favorable to the nonmoving party and construe any re......
  • Watson v. Timberlake, 38, Sept. Term, 2020
    • United States
    • Court of Special Appeals of Maryland
    • July 2, 2021
    ...to support a scheduling order modification, trial courts often walk the same factual ground. Asmussen v. CSX Transportation, Inc ., 247 Md. App. 529, 548-49, 237 A.3d 908 (2020). But just as we require substantial compliance (and good faith in complying) with a Scheduling Order's discovery ......
  • Meit v. Kondratowicz, No. 1396
    • United States
    • Maryland Court of Special Appeals
    • November 6, 2020
    ...the scheduling order"; and (2) whether there is "good cause to excuse the failure to comply with the order." Asmussen v. CSX Transp., 247 Md. App. 529, 550-51 (2020). Regardless of how, exactly, the relevant factors are framed, "[o]rdinarily, a court will 'impose the least severe sanction t......
  • Ruffin v. Forde, 1914-2019
    • United States
    • Court of Special Appeals of Maryland
    • April 22, 2022
    ...are not to be interpreted as "'unyieldingly rigid,' they should be not complacently lax either." Asmussen v. CSX Transportation, Inc., 247 Md.App. 529, 548 (2020) (quoting Naughton v. Bankier, 114 Md.App. 641, 691 (1997)). Circuit courts should demand "at least substantial compliance, or, a......
  • Request a trial to view additional results
16 cases
  • Romeka v. RadAmerica II, LLC, 1207, Sept. Term, 2020
    • United States
    • Court of Special Appeals of Maryland
    • April 27, 2022
    ...217 (2021). The decision to grant a motion for summary judgment is one of law, which we review de novo . Asmussen v. CSX Transp., Inc ., 247 Md. App. 529, 558, 237 A.3d 908 (2020). " ‘We 254 Md.App. 440 review the record in the light most favorable to the nonmoving party and construe any re......
  • Watson v. Timberlake, 38, Sept. Term, 2020
    • United States
    • Court of Special Appeals of Maryland
    • July 2, 2021
    ...to support a scheduling order modification, trial courts often walk the same factual ground. Asmussen v. CSX Transportation, Inc ., 247 Md. App. 529, 548-49, 237 A.3d 908 (2020). But just as we require substantial compliance (and good faith in complying) with a Scheduling Order's discovery ......
  • Meit v. Kondratowicz, No. 1396
    • United States
    • Maryland Court of Special Appeals
    • November 6, 2020
    ...the scheduling order"; and (2) whether there is "good cause to excuse the failure to comply with the order." Asmussen v. CSX Transp., 247 Md. App. 529, 550-51 (2020). Regardless of how, exactly, the relevant factors are framed, "[o]rdinarily, a court will 'impose the least severe sanction t......
  • Ruffin v. Forde, 1914-2019
    • United States
    • Court of Special Appeals of Maryland
    • April 22, 2022
    ...are not to be interpreted as "'unyieldingly rigid,' they should be not complacently lax either." Asmussen v. CSX Transportation, Inc., 247 Md.App. 529, 548 (2020) (quoting Naughton v. Bankier, 114 Md.App. 641, 691 (1997)). Circuit courts should demand "at least substantial compliance, or, a......
  • Request a trial to view additional results

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