Kopplin v. Wis. Cent. Ltd.

Decision Date01 February 2019
Docket NumberNo. 17-3602,17-3602
Parties Jeffery A. KOPPLIN, Plaintiff-Appellant, v. WISCONSIN CENTRAL LIMITED, d/b/a CN, Defendant-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Richard Leonard Carlson, Randal Wayne LeNeave, Attorneys, HUNEGS, LENEAVE & KVAS, P.A., Wayzata, MN, for Plaintiff-Appellant.

Chloe G. Pedersen, James D. Helenhouse, Attorney, FLETCHER & SIPPEL, Chicago, IL, for Defendant-Appellee.

Lawrence M. Mann, Attorney, ALPER & MANN, Bethesda, MD, Amicus Curiae for ACADEMY OF RAIL LABOR ATTORNEYS.

Sean Malone Sullivan, Attorney, DALEY MOHAN GROBLE, P.C., Chicago, IL, Amicus Curiae for ASSOCIATION OF AMERICAN RAILROADS.

Before Sykes, Barrett, and St. Eve, Circuit Judges.

Sykes, Circuit Judge.

Jeffery Kopplin brought two claims against the Wisconsin Central railroad under the Federal Employers' Liability Act ("FELA"), 45 U.S.C. §§ 51 et seq. Both rest on the same allegation: that Kopplin injured his elbow in an effort to operate a broken railroad switch while employed by Wisconsin Central. The district court entered summary judgment for the railroad in part because Kopplin could not prove that the broken switch caused his injury. While the parties raise several other questions, that alone is sufficient to affirm.

I. Background

Prior to his injury, Kopplin worked for Wisconsin Central as a train conductor. On January 24, 2014, he pulled a train into the Fond du Lac yard. To bring the train onto the correct track, Kopplin had to get out and "throw" a switch, which involves pulling a handle to correctly align the tracks. The weather that morning was severe, with below-freezing temperatures and 20- to 30-mile-per-hour winds. As a result ice and snow had built up inside the switch's mechanisms. Kopplin tried to remove the ice and snow with a simple broom—the only tool Wisconsin Central had provided—but after straining himself for several minutes, the switch would not budge.

Kopplin claims that this effort was the initial cause of a long-term elbow disability, though the evidence is less than clear. A video of the incident shows no immediate signs of injury. And Kopplin never mentioned any pain symptoms to his coworkers until two hours later—time in which he continued to perform other physical tasks.

After his physician diagnosed him with medial and lateral epicondylitis

, Kopplin took time off work to receive treatment. Among other things, he received an effective pain-relief injection in February. By April the injury had fully healed. But in August the pain suddenly reemerged when Kopplin tried to drive a riding lawnmower one-handed while holding his son. After that his career as a conductor was effectively over.

Kopplin then brought two related FELA claims against Wisconsin Central, both alleging that the railroad was responsible for the broken switch and the injury it allegedly caused. The first is a run-of-the-mill negligence claim. The second is a negligence per se claim premised on Wisconsin Central's alleged failure to comply with 49 C.F.R. § 213.135, the regulation that sets national standards for switches. Kopplin's sole causation expert was Dr. Etienne Mejia, who testified by deposition that the pain-relief injection Kopplin received often provides only temporary relief, which could explain the pain's reemergence. However, Dr. Mejia conceded that he never investigated whether something other than the January 24 incident could have caused the initial injury. In fact, he testified that he knew so little about Kopplin's job that it would be mere speculation to say throwing a switch even could cause the elbow injury. Moreover, he admitted that he did not investigate whether Kopplin's other physical activities—say, riding a lawnmower in a dangerous fashion—could have caused the renewed elbow problems in August.

For two months after the deposition, Kopplin made no attempt to supplement Dr. Mejia's testimony. But after Wisconsin Central moved for summary judgment, Kopplin attached to his response a new affidavit by Dr. Mejia. The contents of that affidavit were markedly different than the deposition testimony. Dr. Mejia definitively stated that the January 24 incident caused the elbow injury, explaining that the nature of the injury was so clear that there was no need to even consider other potential causes. In the end, Kopplin's effort to bolster his causation evidence was in vain. The judge refused to consider the affidavit because it contradicted sworn deposition testimony. And without the affidavit, she found Dr. Mejia's testimony unreliable under Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). As a result, Kopplin had no causation evidence at all.

The judge addressed several other questions, including the extent to which regulations promulgated under the Federal Railroad Safety Act define the standard of care for FELA actions and the extent to which 49 C.F.R. § 213.5(a) imposes a notice requirement for negligence per se claims. Because the failure to prove causation is fatal to both FELA claims, see Walden v. Ill. Cent. Gulf R.R. , 975 F.2d 361, 364 (7th Cir. 1992), we need not reach those issues here.

II. Discussion

We review a summary judgment de novo, asking whether the movant has shown "that there is no genuine dispute as to any material fact." Hansen v. Fincantieri Marine Grp., LLC , 763 F.3d 832, 836 (7th Cir. 2014) (quotation marks omitted). We review the exclusion of the affidavit "for abuse of discretion, giving the trial judge much deference." Buckner v. Sam's Club, Inc. , 75 F.3d 290, 292 (7th Cir. 1996). Finally, "we review de novo a district court's application of the Daubert framework. If the district court properly adhered to the Daubert framework, then we review its decision to exclude (or not to exclude) expert testimony for abuse of discretion." C.W. ex rel. Wood v. Textron, Inc. , 807 F.3d 827, 835 (7th Cir. 2015) (citations omitted).

We start with the admissibility of Dr. Mejia's affidavit. As the judge explained, a party may not "create an issue of fact by submitting an affidavit whose conclusions contradict prior deposition or other sworn testimony." Buckner , 75 F.3d at 292. The affidavit here contradicts Dr. Mejia's testimony in at least two ways. First, Dr. Mejia was asked at his deposition whether "there could be other various causes of this type of condition" besides the January 24 incident. He answered unequivocally, "Yes." But then in his affidavit, Dr. Mejia wrote that there was no need to consider other causes because "[t]he etiology and diagnosis [were] clear" that "the patient suffered from left traumatic medial epicondylitis

as a result of the injury of January 24, 2014." That clearly contradicts his original statement that other causes could be at play.

Second, Dr. Mejia was asked at his deposition whether throwing a switch "seem[ed] like the kind of activity that could lead to the tendinosis

," and he answered, "It would be speculation on my part...." That admission is squarely at odds with his affidavit's definitive conclusion that Kopplin injured his elbow throwing the switch. See

id. at 293 (excluding a supplemental affidavit's detailed description of a fact when the affiant had disclaimed knowledge of that same fact at her deposition).

To be sure, we have carved out several exceptions to the general rule barring contradictory supplemental affidavits. None apply here. For instance, we've said that a party may offer an affidavit in response to a summary-judgment motion "to clarify ambiguous or confusing testimony." Bank of Ill. v. Allied Signal Safety Restraint Sys. , 75 F.3d 1162, 1171 (7th Cir. 1996). Yet nothing about Dr. Mejia's deposition testimony was ambiguous or confusing: without qualification, he said that other factors could have caused this condition. Similarly, while we have held that an affidavit may contradict sworn deposition testimony if "it is based on newly discovered evidence," id. at 1172, even Kopplin concedes that Dr. Mejia received all of the materials supporting his affidavit before his deposition. Finally, a new affidavit may be appropriate if the earlier testimony was "the result of a memory lapse." Cook v. O'Neill , 803 F.3d 296, 298 (7th Cir. 2015). Kopplin argues that this exception applies because Dr. Mejia did not have the full medical record at his fingertips during the deposition itself. But nothing in Dr....

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