Asmussen v. CSX Transp., Inc.
| Decision Date | 10 September 2020 |
| Docket Number | No. 814, Sept. Term, 2019,814, Sept. Term, 2019 |
| Parties | Paul ASMUSSEN v. CSX TRANSPORTATION, INC. |
| Court | Court of Special Appeals of Maryland |
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.
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.
Asmussen's appeal challenges the circuit court's disposition of all these motions. He presents three issues, which we have reworded:
Because the answer to each of these questions is no, we affirm the circuit court's judgment.
The facts of this case are well known to the parties. Our summary is brief — at 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 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:
The scheduling order required that all expert-witness designations include the information specified in Md. Rule 2-402(g).2
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."
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 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 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 an amended expert report to confirm the withdrawal. (From the record before our court, it does not appear that any such amended expert report was ever submitted.)
For two reasons, the assurances made in this January 22 email—of Dr. Runz's availability and of Dr. Dahlgren's superfluity—would later prove to be problematic for Asmussen.
First, as we will explain, Dr. Dahlgren wasn't really gone for good. On February 8, 2019, CSX received from Dr. Regna a report concluding that Asmussen's kidney cancer
was caused by his exposure to the silica in ballast dust. (The report did not link Asmussen's cancer to any other toxic agents, like the creosote that coated new rail ties or the smoke Asmussen inhaled when burning diesel-soaked wicks.) Asmussen sent an amended report, with additional source materials, references, and information about Dr. Regna's qualifications, on February 19.
Things fell apart in Dr. Regna's deposition on February 22, 2019. As Asmussen concedes in his brief to this court, Dr. Regna's deposition testimony "revealed that his background, education, training, and experience did not qualify him to opine as to the causation of [Asmussen's] kidney cancer
," and "the studies cited by Dr. Regna to support his findings and conclusions did not stand for the proposition that silica causes kidney cancer." Given the fundamental flaws with Dr. Regna's expert testimony, CSX's counsel requested on February 25 that Asmussen voluntarily dismiss his FELA claim with prejudice.
On February 28, after taking a few days to think it over, Asmussen's counsel informed counsel...
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