Guinn v. Norfolk S. Ry. Co.

• Decision Date: 26 February 2020
• Docket Number: CIVIL ACTION NO. 1:18-CV-3119-AT
• Citation: 441 F.Supp.3d 1319
• Parties: Kathy GUINN, Plaintiff, v. NORFOLK SOUTHERN RAILWAY COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Georgia

441 F.Supp.3d 1319

Kathy GUINN, Plaintiff,

v.NORFOLK SOUTHERN RAILWAY COMPANY, Defendant.

CIVIL ACTION NO. 1:18-CV-3119-AT

United States District Court, N.D. Georgia, Atlanta Division.

Signed February 26, 2020

George Brugess, Pro Hac Vice, John M. Power, Cogan & Power, P.C., Chicago, IL, Paul Stephen Kish, Kish Law, LLC, Atlanta, GA, for Plaintiff.

Evan Burton Karnes, II, Office of Evans B. Karnes, II & Associates, Chicago, IL, Daryl Glenn Clarida, Hilary H. Adams, Hall, Bloch, Garland & Meyer, LLP, Atlanta, GA, for Defendant.

ORDER

AMY TOTENBERG, UNITED STATES DISTRICT JUDGE

This matter is before the Court on Defendant Norfolk Southern Railway Company's Motion for Partial Summary Judgment [Doc 70]. Norfolk Southern also filed Motions to Limit or Exclude the Testimony of Experts Eckardt Johanning, M.D., Msc, Ph.D. [Doc. 66], Steven Filbert [Doc. 67], Terry Cordray [Doc. 68], and Colon Fulk [Doc. 69]. For the reasons that follow, The Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART , and the Court will direct the parties to attend mediation of the remaining claims.

I. STANDARD FOR SUMMARY JUDGMENT

Summary judgment may only be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law." FED. R. CIV. P. 56(c). The "purpose of summary judgment is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting the Advisory Committee's note to FED. R. CIV. P. 56 ). "[The] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the [record before the court] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden then shifts to the non-movant to establish, by going beyond the pleadings, that there is indeed a genuine issue as to the material facts its case. Thompson v. Metro. Multi–List, Inc. , 934 F.2d 1566, 1583 n.16 (11th Cir. 1991) ; Chanel, Inc. v. Italian Activewear of Fla., Inc. , 931 F.2d 1472, 1477 (11th Cir. 1991). A dispute of material fact "is ‘genuine’ ... [only] if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; see also Matsushita , 475 U.S. at 587, 106 S.Ct. 1348.

When ruling on the motion, the Court must view all the evidence in the record in the light most favorable to the non-moving party and resolve all factual disputes in the non-moving party's favor. Welch v. Celotex Corp. , 951 F.2d 1235, 1237 (11th Cir. 1992) ; Ryder Int'l Corp. v. First Am. Nat'l Bank , 943 F.2d 1521, 1523 (11th Cir. 1991). The Court must avoid weighing conflicting evidence. Liberty Lobby , 477 U.S. at 255, 106 S.Ct. 2505 ; McKenzie v. Davenport–Harris Funeral Home , 834 F.2d 930, 934 (11th Cir. 1987). Nevertheless, the non-moving party's response to the motion for summary judgment must consist of more than conclusory allegations, and a mere "scintilla" of evidence will not suffice. Walker v. Darby , 911 F.2d 1573, 1577 (11th Cir. 1990) ; Pepper v. Coates , 887 F.2d 1493, 1498 (11th Cir. 1989). But where a reasonable fact finder may "draw more than one inference from the facts, and that inference creates a genuine issue of material fact, then the court should refuse to grant summary judgment." Barfield v. Brierton , 883 F.2d 923, 933–34 (11th Cir. 1989) (citation omitted).

The essential question is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson , 477 U.S. at 251–52, 106 S.Ct. 2505.

II. FACTUAL BACKGROUND¹

On July 8, 2015, Ms. Guinn was injured when she fell from a train car while working as a conductor trainee at Norfolk Southern's training facility in McDonough, Georgia. (Def.'s Statement of Material Facts for Which There is No Genuine Issue to Be Tried ("SUMF") ¶ 1, 13, Doc. 70-10; Pl.'s Resp. to Pl.'s Statement of Material Facts For Which There Is No Genuine Issue To Be Tried ("RSUMF") ¶ 1, 13, Doc. 82; Pl.'s Additional Statement of Facts Which Are Material and Present a Genuine Issue for Trial ("SAMF") ¶ 35 (Doc. 82); Def.'s Resp. to Aditional Statement of Facts Which Are Material and Present a Genuine Issue for Trial ("RSAMF") ¶ 35, Doc. 91). Ms. Guinn contends that Norfolk Southern is responsible for the injuries she sustained based on, among other things, Norfolk Southern's negligent training, negligent assignment, and failure to abide by the Safety Appliance Act. (See generally , Compl. (Doc. 1)).

A. Ms. Guinn's evaluation and training

Prior to her hire, Norfolk Southern provided the Plaintiff the name and address of an independent medical clinic with which it contracted at the time to arrange and attend a physical examination and self-report her medical conditions or treatment history and social and family history in connection with the physical examination and drug screening. (Pl.'s SAMF ¶ 31 (Doc. 82); Def.'s RSAMF ¶ 31, citing Deposition of Kathy Guinn, at 99-108 (Doc. 72)). Ms. Guinn scheduled and attended this physical examination, where, according to Norfolk Southern, "she disclosed no potentially disqualifying medical conditions." (Id. ). Following her physical examination, Ms. Guinn was cleared to participate in conductor training. (Id. ; Dep. Guinn at 123).

Before participating in field training exercises, Plaintiff passed a "hang test" which required her to demonstrate the ability to hang on the side of a railcar ladder with one hand for two minutes and 30 seconds. (Def.'s SUMF ¶ 2, Pl.'s RSUMF ¶ 2). Specifically, "[t]he hang test is two sessions of one minute and 15 seconds, one session for each hand, with a 5-10 second break in between the sessions," and "the trainee's feet are on the ‘sill step’ " (Pl.'s RSUMF ¶ 2, citing Dep. Guinn Ex. 8, Doc. 72 at 534). At her deposition, Ms. Guinn was unsure whether the test was on a railcar, and was not sure how far off the ground the test was, because the examinees were "up on a platform." (Dep. Guinn at 133:1–14).

In any case, the Parties agree that passing the "hang test" is a prerequisite to further conductor training. (Def.'s SUMF ¶ 3, Pl.'s RSUMF ¶ 3). Plaintiff testified² that she had no problem completing the hang test, unlike some of her fellow trainees. (Id. ¶ 4). Ms. Guinn then successfully completed field training exercises including throwing switches, hooking and unhooking a knuckle, tying and releasing a low handbrake, and coupling air hoses. (Id. ¶ 5). Ms. Guinn had no problem tying and releasing the low handbrake or coupling air hoses. (Id. ¶ 6). She, like another trainee, had some difficulty hooking and unhooking the knuckle, but she ultimately completed the task. (Id. ¶ 7).

B. Ms. Guinn's fall

On the date of the fall, Ms. Guinn's group of trainees was assigned to perform a high handbrake exercise on an open top hopper railcar. (Id. ¶ 8). Jonathan Elliott, her trainer, provided a handwritten, undated statement setting forth his account of what occurred. (Doc. 69-8). The Parties stipulated to a transcription of the contents of that statement. (Doc. 100). In that statement, Mr. Elliott states that before starting the exercise, he "demonstrated how to apply and release high vertical mounted handbrakes." (Doc. 100).³ Per his statement, Mr. Elliott asked Ms. Guinn "if she was comfortable and she replied yes." (Id. ). What happened next is in dispute. Ms. Guinn "testified that she was instructed to mount and climb the side ladder of the railcar until her feet were resting on the second to highest rung." (Pl.'s SAMF ¶ 32; Def.'s RSAMF ¶ 32). However, Norfolk Southern disputes this account, contending that Mr. Elliott testified that "that he did not instruct the Plaintiff to keep climbing to the second highest rung, that he would never have let her climb that high, and that he had never even seen anyone stand on a railcar with their feet on the second rung from the top."⁴ (Def.'s RSAMF ¶ 32, citing Deposition of Jonathan Elliott, at 104–105 (Doc. 76)).

According to Ms. Guinn's account, "she mounted and climbed the side ladder of the open top hopper railcar until her feet were resting on its second to highest rung." (Def.'s SUMF ¶ 9; Pl.'s RSUMF ¶ 9). Ms. Guinn "testified that she then transitioned from the railcar's side ladder to its end ladder at that same height, which is two rungs higher than the level o[f] the brake platform." (Id. ¶ 10 (alteration in original)). She testified "that she then descended the end ladder until her right foot was resting on the brake platform." (Id. ¶ 11). With "her right foot on the brake platform, she spun the brake wheel to tie and release the handbrake." (Id. ¶ 12).

What happened next is not clear. Ms. Guinn testified that after releasing the handbreak, she fell to the ground. (Id. ¶ 13). However, per Mr. Elliott's written statement and testimony, she first "reached around and planted her foot on the grab iron," then "she started to come around" and then "fell off the car." (Pl.'s SAMF ¶ 36, Def.'s RSAMF ¶ 36; Statement of Jonathan Elliott ( Doc. 100); Dep. Elliot at 25–26).

The Parties dispute Ms. Guinn's condition at the time of the fall. At her deposition, Plaintiff testified that she was tired and hot at the time, but otherwise clearheaded:

4 Q Okay. And at the time that you were attempting

5 to apply and release the handbrake and come down from 6 the car, you were feeling physically fine?

7 A Yes.

8 Q You weren't fatigued or even dizzy or anything

9 like

...