Bardo v. Norfolk S. Ry. Co.
| Decision Date | 11 May 2020 |
| Docket Number | CIVIL ACTION NO. 4:17-942 |
| Citation | 459 F.Supp.3d 618 |
| Parties | Francis BARDO, Plaintiff v. NORFOLK SOUTHERN RAILWAY COMPANY, Defendant |
| Court | U.S. District Court — Middle District of Pennsylvania |
Voci R. Bennett, Keller & Goggin, P.C., Philadelphia, PA, for Plaintiff.
Daniel J. Hampton, Burns White, LLC, Pittsburgh, PA, for Defendant.
Pending before the court is defendant's motion for summary judgment pursuant to Fed.R.Civ.P. 56 and Local Rule 56.1, M.D. Pa. (Doc. 14). For the reasons stated below, the court will GRANT the motion.
Plaintiff commenced this litigation by filing a complaint on May 30, 2017. (Doc. 1). Upon completion of discovery, defendant filed a motion for summary judgment and brief in support on January 11, 2019. (Doc. 14, Doc. 15). On April 8, 2019, plaintiff sought leave to file a response to defendant's motion for summary judgment nunc pro tunc. (Doc. 16). On the same day, plaintiff filed a brief in opposition to defendant's motion for summary judgment. (Doc. 17). Attached to plaintiff's brief in opposition was the report of Dr. Eckardt Johanning who plaintiff argued ought to be admitted to testify as an expert in the case.
This court granted plaintiff's motion to file a response to defendant's motion for summary judgment nunc pro tunc and reopened discovery with respect to the report of Dr. Johanning only. (Doc. 20). Under the order, defendant was permitted to file a reply brief to their motion for summary judgment and plaintiff was permitted to file a sur-reply. On February 14, 2020, defendant filed a reply brief to their motion for summary judgment objecting to the report of Dr. Johanning and again arguing that plaintiff has failed to provide admissible expert testimony and has failed to prove the necessary element of causation. (Doc. 25). Plaintiff has not filed a sur-reply and the time to do so has expired. Defendant's motion for summary judgment is now ripe for disposition.
Plaintiff's complaint is brought under the Federal Employers’ Liability Act ("FELA"), 45 U.S.C. §§ 51 - 60. Plaintiff seeks compensation for defendant's negligence and failure to provide a safe work environment which he alleges led to the "aggravation of existing conditions and cumulative micro traumas disorders/repetitive stress injuries to his spine
, neck, muscles and nerves." (Doc. 1, p. 3).
In support of his claim, plaintiff offers the report of Dr. Eckardt Johanning and contends that he ought to be qualified to testify as an expert in this case. Defendant states in its supplemental statement of material facts that "Dr. Johanning is a board-certified occupational medical doctor, who has testified on behalf of numerous FELA plaintiffs over the years, with a focus on testifying and offering opinions in cases involving allegations of whole body vibration exposure in the locomotive cab setting, and the vast majority of his published research focuses on purported vibration exposure in a locomotive cab setting." (Doc. 26, p. 1-2). Defendant deposed Dr. Johanning on January 15, 2020. (Doc. 26, p. 2). Defendant objects to the admissibility of Dr. Johanning's testimony on the following grounds: (1) he is not qualified to testify as an expert in the case; (2) his opinions are not the result of reliable principles or methods; and (3) he has not applied reliable principles and methods to the facts of the case. (Doc. 26). Defendant's argument continues that because Dr. Johanning is not qualified to testify as an expert in this case, plaintiff has failed to present admissible expert evidence that speaks to medical causation and thus has failed to prove that defendant's negligence caused plaintiff's injuries, a required element of a FELA claim.
Summary judgment is appropriate "if the pleadings, the discovery [including, depositions, answers to interrogatories, and admissions on file] and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c) ; see also Celotex Corp. v. Catrett , 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Turner v. Schering-Plough Corp. , 901 F.2d 335, 340 (3d Cir. 1990). A factual dispute is genuine if a reasonable jury could find for the non-moving party and is material if it will affect the outcome of the trial under governing substantive law. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Aetna Cas. & Sur. Co. v. Ericksen , 903 F. Supp. 836, 838 (M.D. Pa. 1995). At the summary judgment stage, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson , 477 U.S. at 249, 106 S.Ct. 2505 ; see also Marino v. Indus. Crating Co. , 358 F.3d 241, 247 (3d Cir. 2004) (). Rather, the court must consider all evidence and inferences drawn therefrom in the light most favorable to the non-moving party. Andreoli v. Gates , 482 F.3d 641, 647 (3d Cir. 2007).
To prevail on summary judgment, the moving party must affirmatively identify those portions of the record which demonstrate the absence of a genuine issue of material fact. Celotex Corp. , 477 U.S. at 323-24, 106 S.Ct. 2548. The moving party can discharge the burden by showing that "on all the essential elements of its case on which it bears the burden of proof at trial, no reasonable jury could find for the non-moving party." In re Bressman , 327 F.3d 229, 238 (3d Cir. 2003) ; see also Celotex Corp. , 477 U.S. at 325, 106 S.Ct. 2548. If the moving party meets this initial burden, the non-moving party "must do more than simply show that there is some metaphysical doubt as to material facts," but must show sufficient evidence to support a jury verdict in its favor. Boyle v. County of Allegheny , 139 F.3d 386, 393 (3d Cir. 1998) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ). However, if the non-moving party "fails to make a showing sufficient to establish the existence of an element essential to [the non-movant's] case, and on which [the non-movant] will bear the burden of proof at trial," Rule 56 mandates the entry of summary judgment because such a failure "necessarily renders all other facts immaterial." Celotex Corp. , 477 U.S. at 322-23, 106 S.Ct. 2548 ; Jakimas v. Hoffmann-La Roche, Inc. , 485 F.3d 770, 777 (3d Cir. 2007).
Defendant raises two arguments in their motion for summary judgment and they renew one of those arguments in their reply brief.1 Defendant's main argument in their motion for summary judgment and reply brief is that plaintiff has not produced admissible expert evidence that defendant's negligence caused his alleged injuries and because of this has failed to plead a required element for a cognizable FELA claim. However, plaintiff contends that Dr. Johanning ought to be permitted to testify as an expert in this case and can speak to medical causation. Defendant objects to the admissibility of Dr. Johanning's testimony and presents this argument in its reply brief. Plaintiff has not responded to defendant's reply brief or supplemental statement of material facts and, pursuant to Local Rule 56.1, all facts in defendant's supplemental statement of material facts are deemed uncontested and admitted.
a. Plaintiff has Failed to Produce Admissible Expert Testimony and as a Result has Failed to Prove the Element of Causation Required for a Cognizable Claim Under FELA.
FELA states that "[e]very common carrier by railroad ... shall be liable in damages to any person suffering injury while he is employed by such carrier ... for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier...." 45 U.S.C. § 51. FELA is not a strict liability statute; "it is a negligence statute with an explicitly-stated relaxed standard of causation." Monheim v. Union R. Co. , 996 F.Supp.2d 354, 361 (W.D. Pa. 2014) ; see Consolidated Rail Corp. v. Gottshall , 512 U.S. 532, 542-543, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994).
To present a prima facie case under FELA, the employee-plaintiff must show that: (1) he was injured within the scope of his employment; (2) his employment was in furtherance of the railroad's interstate transportation business; (3) the railroad was negligent; and (4) that negligence played some part in causing the injury for which he seeks compensation. Monheim , 996 F.Supp.2d at 361 ; see also Van Gorder v. Grand Trunk W.R.R. , 509 F.3d 265, 269 (6th Cir. 2007). At the summary judgment stage, "the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought." Monheim, F.Supp.2d at 361 (citing CSX Transp., Inc. v. McBride , 564 U.S. 685, 692, 131 S.Ct. 2630, 180 L.Ed.2d 637 (2011) ).
The Third Circuit has clarified that to defeat a motion for summary judgment a plaintiff need only present a minimum amount of evidence. Hines v. Consol. Rail Corp. , 926 F.2d 262, 268 (3d Cir. 1991) (citing Pehowic v. Erie Lackawanna R.R. , 430 F.2d 697, 699-700 (3d Cir. 1970) ). Further, "[a] trial court is justified in withdrawing ... issue[s] from the jury's consideration only in those extremely rare instances where there is a zero probability either of employer negligence or that any such negligence contributed to the injury of an employee." Pehowic , 430 F.2d at 699-700. Although the causation standard is lessened under FELA, a plaintiff "must nevertheless demonstrate the common law elements of negligence: i.e., duty, breach, foreseeability, and causation." Monheim , 996 F.Supp.2d at 361 ; see ...
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