Ellenbecker v. BNSF Ry. Co.
| Decision Date | 01 March 2021 |
| Docket Number | 4:19-CV-3038 |
| Parties | JAMES J. ELLENBECKER, Plaintiff, v. BNSF RAILWAY COMPANY, a Delaware corporation, Defendant. |
| Court | U.S. District Court — District of Nebraska |
James Ellenbecker sued his former employer, BNSF Railway Co., under the Federal Employers Liability Act (FELA), 45 U.S.C. § 51 et seq., alleging that when his train traveled over the West KAAPA mainline switch and crossing on March 5, 2017, rough track resulting from BNSF's negligence caused serious injury to his right occipital nerve.
This matter is before the Court on cross-motions for summary judgment and motions to exclude expert testimony. Ellenbecker moves for partial summary judgment on the issues of causation (filing 97) and negligence (filing 108) under FELA. BNSF moves for summary judgment (filing 100) arguing that Ellenbecker cannot establish a prima facie claim of negligence. BNSF also moves to exclude or limit the testimony of Ellenbecker's safety expert (filing 103) and medical expert (filing 105). All of these motions draw upon the same or similar material facts and will be resolved together.
As explained below, Ellenbecker's motion for partial summary judgment on the issue of causation will be granted. And BNSF's motions to exclude or limit the expert testimony of safety expert Brian Hansen and medical expert Dr. Bennett Machanic will be granted in part and denied in part. All other motions presently before the court will be denied and the case will move forward to trial.
ELLENBECKER'S INJURY
Ellenbecker was a locomotive engineer for BNSF and operated trains primarily along the route from Lincoln, Nebraska to McCook, Nebraska. Filing 102-2 at 6. As an engineer, Ellenbecker maintained the speed of the train, watched for air pressure, and monitored the track for anything unusual that might impede the train's movement. See filing 102-2 at 6.
On the evening of March 4, 2017, Ellenbecker operated a train traveling from Lincoln to McCook. Filing 102-2 at 11. Brent Schaefer was the conductor for the trip and rode in the cab with Ellenbecker. Filing 102-2 at 11, 16. Sometime during the early morning hours of March 5, 2017, the train traveled over a stretch of track between Minden and Axtell, Nebraska near a KAAPA ethanol distillery, commonly referred to as the West KAAPA switch. See filing 102-2 at12-13; see also filing 102-4. A switch allows a train to be diverted off one line of track and onto another—here, the West KAAPA switch provided access to a small section of track used by the KAAPA facility to load and unload freight cars. See filing 102-2 at 13; filing 102-4.
Ellenbecker testified that as the train approached the switch, he saw a familiar small s-curve on the main line track which he had seen many times before. Filing 102-2 at 13-15; filing 102-5 at 3. As the train traveled over the switch, Ellenbecker testified it got thrown side-to-side, "a little more than normal" and he "felt a snap, like, about an inch behind [his right] ear [] at the base of his skull," that caused a burning sensation. Filing 102-2 at 15, 17. He didn't think much of it at the time, but told Schaefer that something hadhappened and he thought "something just snapped on [his] skull."1 Filing 102-2 at 15, 17. Ellenbecker was able to continue running the train to McCook, and when he got there he went to his hotel room and slept. Filing 102-2 at 18.
When asked whether what he experienced that morning was different than the many other rides he had taken over the switch, Ellenbecker testified Filing 102-2 at 15, 18. He also testified that the West KAAPA switch was a little more rough than going over other switches, and had been for a long time. Filing 102-2 at 16, 18, 20. But he said he treated it like any other switch and never reduced the train's speed or made sure he was sitting down to cross it. Filing 102-2 at 17.
On the evening of March 5,2 Ellenbecker engineered a train back to Lincoln. Filing 102-2 at 19. On the return trip, he went over the West KAAPA switch just as he normally would and testified that he experienced "[t]he usual rocking back and forth." Filing 102-2 at 20. When he arrived back in Lincoln early on the morning of March 6, Ellenbecker reported his injury to the superintendent. Filing 102-2 at 20-21. By that time, he was experiencing soreness at the base of his skull and on the right side of his head behind his ear. Filing 102-2 at 20. On the report, Ellenbecker wrote his injury occurred because of a "rocking motion" over the West KAAPA switch. Filing 102-6.
Immediately after the incident, Ellenbecker's symptoms were mild—he still had a burning sensation behind his right ear, some soreness, and some tingling in his right pointer finger. See filing 102-2 at 8, 19; filing 99-2 at 8. On March 7, Ellenbecker went to his regular medical provider, Anne Bruna, APRN, to get checked out. Filing 99-4 at 2-3. She diagnosed him with "cervical neck pain with some right radicular symptoms and right second finger numbness." Filing 99-4 at 4. A few days later, Bruna scheduled Ellenbecker for an MRI at his request and referred him to a neurologist for further evaluation. Filing 99-4 at 4.
In November of 2017, Ellenbecker saw neurologist James Bobenhouse, M.D. Filing 99-5 at 3. He was diagnosed with right neck and greater occipital pain due to muscle strain with probable superimposed greater occipital neuritis (inflammation or injury to the nerve). Filing 99-5 at 4.
Ellenbecker testified that beginning in early 2018 his symptoms got worse—he had "electric shock-like" feelings beginning at the right occipital region, near the base of the skull, along the right side of his scalp and ending just behind his right temple that started waking him up at night. Filing 102-2 at 8. In February 2018, Ellenbecker quit his engineering job with BNSF because of his pain. See filing 107-4 at 1; filing 107-2 at 46-47.
In October of 2018 Ellenbecker went to the Mayo Clinic. Filing 99-6 at 3. Mark Whealy, M.D. (a board-certified neurologist with a subspecialty in headache medicine) and Jacqueline Duvall, M.D. (a headache fellow at Mayo) evaluated Ellenbecker. Filing 99-6 at 2. In addition to the electric shock-like pain, Ellenbecker reported a constant dull aching pain in the right occipital and temporal regions. Filing 99-6 at 3. He also complained of headaches with nausea, wavy lines in his right-side vision, and constant ringing in his right ear. Filing 99-6 at 3. Ellenbecker said that movement and activity, sitting forprolonged periods, fatigue associated with his shift work as an engineer, and bright lights seemed to trigger and exacerbate his pain. See filing 99-6 at 3. Dr. Whealy noted that Ellenbecker's electric-shock-like pain "could be related either to a right lesser occipital neuralgia or cervicogenic headache after a whiplash injury." Filing 99-6 at 4. Dr. Duvall opined that Ellenbecker's headaches could be "attributed to prior whiplash injury in the setting of a medication overuse," and the shock-like pain "suggest[ed] of a lesser occipital neuralgia." Filing 99-6 at 4. Ultimately, Ellenbecker was diagnosed with lesser occipital neuralgia. See filing 99-8 at 3-4, 8.
Ellenbecker continued treatment at the Mayo Clinic with several other doctors throughout 2019 and 2020. See filing 99-6 at 5. He received two rounds of Botox injections to try and reduce the frequency of his headaches and underwent a pulsed radiofrequency ablation procedure (burning of a nerve). Filing 99-6 at 5. And Ellenbecker was also prescribed a variety of medications to try and curb his nerve pain and headaches. Filing 99-6 at 6.
At the time of Ellenbecker's deposition in October 2019, his symptoms had progressed even further. The sometimes painful electric shocks occurred 40 to 50 times per day and woke him up as many as four or five times per night. Filing 102-2 at 8-9. Ellenbecker also continued to experience painful migraines across the front of his head. Filing 102-2 at 8.
CONDITION OF THE TRACK NEAR THE WEST KAAPA SWITCH ON MARCH 5, 2017
Ellenbecker claims that BNSF's negligent maintenance of the track at the West KAAPA switch and crossing caused his injury. See filing 121 at 1-3. So, evidence of the condition of the track on March 5 is central to the resolution of this dispute.
To begin, it will be helpful to discuss the precise location and nature of the track at the West KAAPA switch. The switch is located at milepost 195.559 and a public road crossing is located at milepost 195.560. Filing 102-8 at 2; filing 110-4 at 5; filing 102-7 at 6. The section of track including the West KAAPA switch and crossing is rated Class 4, subjecting it to the Federal Railroad Administration (FRA) standards for that class of track. See filing 102-7 at 9; filing 102-16 at 8; filing 102-13 at 2. And in 2017 it was also classified as a "key route" by BNSF because ethanol trains, considered hazardous, traveled the route. Filing 102-15 at 8; filing 102-16 at 4. Key routes were subject to additional inspections under BNSF internal policies. Filing 102-15 at 8. Two Amtrak trains and about 10 to 15 BNSF freight trains traveled over the West KAAPA switch and crossing each day. Filing 102-16 at 8.
On March 6, the day after the incident, James Matthews, BNSF claim officer, conducted an investigation at the West KAAPA switch and crossing. See filing 110-4 at 4. During that investigation he took a series of photos. Filing 110-5; see also filing 110-4 at 3. Matthews also collected video footage from a forward-facing camera that was attached to the locomotive Ellenbecker was operating on March 5. See filing 102-24. And a BNSF track foreman and truck driver examined the area and did not document any track abnormalities. See filing 110-4 at 6, 9. But there is no evidence they took any track measurements. See filing 110-4 at 9;...
To continue reading
Request your trial