Butler v. Union Pac. R.R. Co.

• Decision Date: 22 October 2020
• Docket Number: 8:19CV166
• Citation: 496 F.Supp.3d 1300
• Parties: Robert BUTLER, Plaintiff, v. UNION PACIFIC RAILROAD COMPANY, Defendant.
• Court: U.S. District Court — District of Nebraska

496 F.Supp.3d 1300

Robert BUTLER, Plaintiff,

v.UNION PACIFIC RAILROAD COMPANY, Defendant.

8:19CV166

United States District Court, D. Nebraska.

Signed October 22, 2020

Shawn M. Sassaman, Tobi A. Russeck, Bern, Cappelli Law Firm, Conshohocken, PA, for Plaintiff.

Anne M. O'Brien, Daniel Hassing, Kyle Wallor, Lamson, Dugan Law Firm, Omaha, NE, for Defendant.

MEMORANDUM AND ORDER

Joseph F. Bataillon, Senior United States District Judge

This matter is before the Court on the defendant's motion for summary judgment, Filing No. 16. This is an action under the Federal Employers’ Liability Act ("FELA"), 45 U.S.C. § 51 et seq. , and the Federal Locomotive Inspection Act, 49 U.S.C. § 20101, et seq. The plaintiff, formerly employed as a brakeman and a conductor by defendant Union Pacific Railroad Company ("U.P." or "the Railroad") alleges that while employed at U.P. from 1963 to 2000, he was negligently exposed to various toxic substances and carcinogens that caused or contributed to his development of colorectal cancer.

In its motion for summary judgment, U.P. contends the plaintiff's action is barred by a settlement and release Butler executed in 2011 on an asbestosis claim.

I. FACTS

The parties agree to certain facts. See Filing No. 17, U.P. Brief at 2-6; Filing No. 19, Response Brief at 2-3; The following facts are gleaned from the parties’ agreed statements and from the record.

The parties agree that Butler first became employed by U.P.’s predecessor, Missouri Pacific Railroad Company in 1963. He continued to work for the railroad until 2000, when he took a leave of absence. He remained on Union Pacific's roster until 2008.

Butler brought an asbestosis claim against Union Pacific, which the parties settled on March 3, 2011. Filing No. 18-2, Ex. 2, Release; Filing No. 18-3, Ex. 3, Requests for Admission at 1. The release recites that Butler filed a claim for injuries resulting from occupational exposures and the basis of the claim resolved by the release was exposure to asbestos. Filing No. 18-3, Ex. 3, Requests for Admission at 1. At the time of the execution of the release, Butler had been diagnosed with asbestosis. Butler acknowledged the payment of $5000.00 as a "complete compromise and settlement of all claims, demands, actions, injuries, damages, costs and compensation of any kind arising out of the subject matter of this Release , whether known or unknown, whether or not ascertainable at this time." Filing No. 18-2, Ex. 2, Release at 3 (emphasis added).

The release provides that "Butler brought a claim against Union Pacific seeking damages as a result of alleged illness and diseases and any cancers or death resulting" from Butler's "Occupational Exposures." Id. at 2. In exchange for consideration in the amount of $5000.00, Butler agreed to release

any and all claims demands, actions, damages, costs and compensation of any kind against Union Pacific accruing as a result of ROBERT BUTLER'S employment with Union Pacific, including illness, cancers, diseases, and death from BUTLER'S Occupational Exposures. This release expressly includes all claims caused in whole or in part by any Occupational Exposures. This release expressly includes all claims arising out of any illness, disease, cancers, potential cancers, injury, and death from any Occupational Exposures. This release includes claims for any illness, injuries or diseases which are presently existing or known as well as claims for any injury, illness, or disease that does not presently exist or is unknown, but which may develop or become known in the future. This release expressly includes any claims for any cancer which presently exists as well as any cancer which does not presently exist but which may develop in the future. This release includes any future damages, general or specific, that BUTLER may incur in an attempt to alleviate or cure any illness, disease, cancer, potential cancer or other injury, including chemotherapy, radiation therapy and surgery. This release includes any increased risk of contracting any physical disorder related to or resultant from any illness, disease, cancer, potential cancer, or other injury as result of any Occupational Exposures. BUTLER further agrees not to institute any action at law or in equity against Union Pacific for any claims, demands, actions, damages, costs, or compensation of any kind as a result of ROBERT BUTLER'S employment with Union Pacific, including Occupational Exposures or their consequences, including but not limited to any claim for medical bills or health care, lost earning power, loss of consortium, mental anguish, pain and suffering, wrongful death, contribution and/or indemnity, and any other claims now or later existing. Union Pacific may plead this agreement as a complete defense to any action or proceeding brought by BUTLER in breach of this covenant.

Id. at 2-3. In the release, "Occupational Exposures" is defined as:

any and all exposures to which ROBERT BUTLER was exposed as an employee of Union Pacific. Occupational Exposures includes any and all exposures by any method, including exposures by breathing, touching, ingesting, or otherwise. Occupational Exposures includes any and all exposures to any toxic materials, metals or chemicals, including without limitation asbestos, dusts, fumes, gases, fuels, combustion products and by-products, exhausts, solvents, cleaners, lubricants, paints, paint thinners, silica, whether alleged or not alleged, caused or contributed to by, or in any way the legal responsibility of any company or person within the above definition of Union Pacific. Occupational Exposures includes claims against Union Pacific for exposures to which ROBERT BUTLER was exposed as an employee of Union Pacific which are caused by or alleged to be caused by any third party, including without limitation, a Union Pacific customer, an industry served by Union Pacific, a manufacturer, supplier, owner, shipper, or consignee of any product transported by Union Pacific, a contractor engaged by Union Pacific, or owners of real property from which any exposure emanates.

Id. at 1.

In the release, Butler acknowledged that the "possible future effects of existing injuries [were] specifically bargained for" in his release and were "released in exchange for the payment of consideration stated" in the release. Id. at 3. Butler concedes that asbestosis may lead to lung cancer and mesothelioma. The plaintiff contends the "future effects" of pulmonary asbestosis would be lung cancer.

There is no dispute that Butler consulted with his attorneys in making the release and that he was "relying upon their collective judgment, belief and knowledge about" the release and claims. Butler was represented by the same attorney who represents him in this litigation. Butler warranted "that the terms of the Release ha[d] been completely read and/or explained by his[ ] attorney and that said terms are fully understood and voluntarily accepted by BUTLER." Id. at 4. Both Butler and his attorney signed the release.

Butler knew at the time that he executed the release that asbestos was carcinogenic, meaning he knew it could cause cancer. Butler was 67 years old and retired at the time that he signed the release. Under the terms of the release, Butler released all claims for cancer arising from Occupational Exposures, as defined in the release. Butler was diagnosed with invasive adenocarcinoma of the lower anterior colon in 2016. Filing No. 20, Ex. 1, Pathology Report at 3.

II. LAW

Summary judgment is appropriate when, viewing the facts and inferences in the light most favorable to the nonmoving party, "the pleadings, the discovery 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). The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "The movant ‘bears the initial responsibility of informing the district court of the basis for its motion’ and must identify ‘those portions of [the record] ... which it believes demonstrate the absence of a genuine issue of material fact.’ " Torgerson v. City of Rochester , 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc ) (quoting Celotex , 477 U.S. at 323, 106 S.Ct. 2548 ). If the movant does so, "the nonmovant must respond by submitting evidentiary materials that set out ‘specific facts showing that there is a genuine issue for trial.’ " Id. (quoting Celotex , 477 U.S. at 324, 106 S.Ct. 2548 ).

The evidence must be viewed in the light most favorable to the nonmoving party, giving the nonmoving party the benefit of all reasonable inferences. Kenney v. Swift Transp., Inc. , 347 F.3d 1041, 1044 (8th Cir. 2003). If "reasonable minds could differ as to the import of the evidence," summary judgment should not be granted. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 251, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "In ruling on a motion for summary judgment, a court must not weigh evidence or make credibility determinations." Id. "Where the unresolved issues are primarily legal rather than factual, summary judgment is particularly appropriate." Koehn v. Indian Hills Cmty. Coll. , 371 F.3d 394, 396 (8th Cir. 2004).

The validity of a release under the FELA is determined in accordance with federal law. Dice v. Akron, Canton & Youngstown Ry. Co. , 342 U.S. 359, 361, 72 S.Ct. 312, 96 L.Ed. 398 (1952) ; see also Maynard v. Durham & S. Ry. Co. , 365 U.S. 160, 161, 81 S.Ct. 561, 5 L.Ed.2d 486 (1961). Under § 5 of the FELA, any contract where the purpose is to "exempt" an employer from "any liability" under FELA is void. 45 U.S.C. §...