Ill. Cent. R.R. Co. v. Jackson, 2014–IA–00814–SCT.

• Decision Date: 10 December 2015
• Docket Number: No. 2014–IA–00814–SCT.,2014–IA–00814–SCT.
• Parties: ILLINOIS CENTRAL RAILROAD COMPANY v. Deborah JACKSON, Surviving Spouse and Personal Representative of Charles D. Jackson, Jr., Deceased.
• Court: Mississippi Supreme Court

179 So.3d 1037

ILLINOIS CENTRAL RAILROAD COMPANY

v.Deborah JACKSON, Surviving Spouse and Personal Representative of Charles D. Jackson, Jr., Deceased.

No. 2014–IA–00814–SCT.

Supreme Court of Mississippi.

Dec. 10, 2015.

Thomas Benton York, Tanya D. Ellis, Jackson, attorneys for appellant.

Wayne Dowdy, Dunbar Dowdy Watt, Magnolia, attorneys for appellee.

EN BANC.

DICKINSON, Presiding Justice, for the Court:

¶ 1. Deborah Jackson sued Illinois Central Railroad Company ("Illinois Central") under the Federal Employers' Liability Act (FELA) for the wrongful death of her husband, Charles Jackson. Jackson alleged that her husband's death from lung cancer

was caused by his exposure to asbestos while working for the railroad. After the close of discovery, Illinois Central filed a motion for summary judgment and a motion to strike Jackson's expert, Michael J. Ellenbecker. Later, Illinois Central moved to strike improper evidence from Jackson's response to the motion for summary judgment. When Jackson attempted to supplement Ellenbecker's designation at the summary-judgment hearing, Illinois Central moved ore tenus to strike the supplementation.

¶ 2. The Circuit Court of Pike County denied all of Illinois Central's motions. This Court granted Illinois Central's petition for an interlocutory appeal. We find that Jackson's expert designation of Ellenbecker was improper summary-judgment evidence because it was not sworn to upon personal knowledge and constituted inadmissible hearsay. Because the supplemental response was unsworn and never was filed, it also was improper summary-judgment evidence. And, because Jackson cannot show a genuine issue of material fact without Ellenbecker's testimony, we reverse the denial of summary judgment and render judgment in favor of Illinois Central.

FACTS

¶ 3. Jackson filed the complaint on August 15, 2012. She alleged that Charles worked for Illinois Central from 1974 until 1982, and his primary duties were as a carman at the railroad's car shops in McComb. She alleged that Charles developed lung cancer

and died as the result of having been exposed to asbestos at Illinois Central.¹

¶ 4. On September 14, 2012, Illinois Central served Jackson's counsel with its first set of interrogatories and requests for production of documents. Illinois Central requested disclosure of the experts Jackson expected to call and the substance of each expert's opinions. In her answer to interrogatories on January 30, 2013, Jackson named Dr. Barry Whites as a potential expert and stated that the answer would be supplemented. A scheduling order dated July 22, 2013, directed that discovery be completed by January 31, 2014, and set July 21, 2014, as the trial date. On August 30, 2013, Jackson designated Ellenbecker as an expert and provided a summary of his testimony. In the designation, Jackson provided a description of Ellenbecker's general testimony about railroad employees' exposure to asbestos as the result of employer negligence. Copied into the designation was a report by Ellenbecker stating that the report was general information and did not apply to a particular worker. Jackson's counsel signed the designation of Ellenbecker. On September 6, 2013, Jackson filed the designation of Dr. Whites, also signed by Jackson's counsel. This designation stated that Dr. Whites would testify about how asbestos contributes to lung disease.

¶ 5. Illinois Central moved to strike Ellenbecker's designation on March 18, 2014. Illinois Central argued that Ellenbecker's testimony should be excluded because Jackson had failed to disclose the substance of Ellenbecker's opinions, to produce any report specific to Charles, or to make Ellenbecker available for deposition. Illinois Central complained that Ellenbecker's designation was incomplete because the designation contained Ellenbecker's statement that his report was not meant to address the specific exposures of any particular railroad worker. Illinois Central argued that, because Jackson had failed to seasonably supplement the incomplete designation, Ellenbecker's testimony must be excluded.

¶ 6. On the same day, Illinois Central moved for summary judgment on the ground that Jackson could present no evidence that Charles had been exposed to asbestos while employed by Illinois Central. Jackson filed a response to the motion for summary judgment with attached excerpts of the deposition of Dr. Whites, deposition excerpts of two former Illinois Central employees who had worked with Charles, and the designation of Ellenbecker. Illinois Central filed a reply on May 12, 2014, arguing that summary judgment should be granted because the Ellenbecker designation and a report by Dr. Whites were unsworn, factually unsupported hearsay. Illinois Central also argued that Jackson had no proof of exposure because Charles's co-workers had admitted in their depositions that they did not know if Charles had been exposed to asbestos at work. The same day, Illinois Central moved to strike the Ellenbecker designation and Dr. Whites's report from Jackson's summary judgment response,² arguing that both pieces of evidence were unsworn, not based upon personal knowledge, and constituted inadmissible hearsay.

¶ 7. The trial court heard arguments on the motions filed by Illinois Central on May 20, 2014. Illinois Central repeated its arguments that Ellenbecker's expert designation should be struck because it had not been seasonably supplemented with information specific to Charles. Illinois Central also argued that Dr. Whites's report and the Ellenbecker designation were improper summary-judgment evidence and should be struck from the summary-judgment record.

¶ 8. In response, Jackson's counsel averred that Illinois Central had been provided with a supplemental response to Ellenbecker's designation on May 2, 2014. However, this supplemental response never was filed. Jackson's counsel then read from and described the supplemental response:

[Ellenbecker] visited the McComb I.C. car shops in 1995, and on one other occasion. He knows about asbestos abatement efforts by Illinois Central that were conducted in years after the shops were closed. When he was in the McComb shops, he says, as he said in numerous other cases where they were defending the Railroad, he observed evidence of recent abatement. He inspected the car shop where [Charles] worked, and where these other four men who were deposed in January worked. He observed brake shoes. And he has already given testimony many times, and at other times, that the application of brakes to the railroad cars caused exposure to asbestos. He observed equipment with frayed insulation on pipe. And he will testify at this trial and as is set forth in this interrogatory response ... that while he was down in the McComb shop he observed frayed insulation on pipe with asbestos-containing insulation used as pipe wrap. He has testified, and here, very damaged, deteriorated conditions of asbestos wrapping around the pipes. He has photographed the shops in the McComb facility. He observed the box cars that were sealed inside the shop. He observed and photographed bags labeled asbestos disposal bags.

...

He is aware of the participation of Illinois Central officers and agents in meetings where they discussed industrial hygiene and, particularly, asbestos and asbestos exposure. He has testified, and we know he's going to testify in this case, as we state, that these documents indicate significant knowledge by Illinois Central about use of asbestos going all the way back to the 1930s.... he says it's poor industrial hygiene practice for all workers not to be informed about the hazards of asbestos exposure. He is familiar with the documents that communicated to superintendents of the various Illinois Central shops the concerns about asbestos exposure. But their—testimony of the four gentlemen who were deposed in January indicates that there were no signs, none of them ever knew anything about asbestos exposure until the asbestos abatement programs were done in the 1990s, well after the McComb shops were closed and well after the time when these men left the employment of Illinois Central.

Jackson's counsel also read Ellenbecker's opinions about the warnings and remedial measures that Illinois Central should have taken to protect Charles from asbestos-caused harm. He stated that Ellenbecker would testify that Jackson had been exposed to unreasonably high levels of asbestos while working for Illinois Central.

¶ 9. Jackson's counsel argued that the coworkers' testimony, Dr. Whites's testimony, and the supplemental response of Ellenbecker created genuine issues of material fact that Charles's death was caused by asbestos exposure at the McComb shops. Illinois Central responded that the supplemental response was provided three months after discovery closed. Illinois Central orally moved to strike the supplemental response because it was untimely, without explanation, and without leave of court. Counsel for Illinois Central also moved to strike the supplemental response from the record because it was not competent summary-judgment evidence in that it was "not a sworn statement from Ellenbecker," and it was simply "hearsay, prepared and written by an attorney."

¶ 10. On May 22, 2014, the trial court denied Illinois Central's motion for summary judgment and the motion to strike improper summary-judgment evidence. On June 2, 2014, the trial court denied Illinois Central's motion to exclude Ellenbecker as Jackson's expert witness.

DISCUSSION

I. DID THE TRIAL COURT ABUSE ITS DISCRETION BY DENYING THE MOTION TO STRIKE IMPROPER SUMMARY–JUDGMENT EVIDENCE?

¶ 11. Illinois Central filed a motion to strike Ellenbecker's designation and Dr. Whites's report from Jackson's summary-judgment briefing. Illinois Central argued that the unsworn expert designation and report constituted hearsay and were not proper summary-judgment evidence. The trial court denied the motion to strike. Illinois Central renews its arguments on...