Beving v. Union Pac. R.R. Co., 3:18-cv-00040

Citation447 F.Supp.3d 786
Decision Date14 August 2019
Docket Number3:18-cv-00040
Parties Thomas M. BEVING, Plaintiff, v. UNION PACIFIC RAILROAD COMPANY, Defendant.
CourtUnited States District Courts. 8th Circuit. United States State District Court of Southern District of Iowa

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.



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.


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.


The term "summary judgment" is something of a misnomer. See D. Brock Hornby, Summary Judgment Without Illusions...

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