Lessert v. BNSF Ry. Co.

• Decision Date: 05 August 2020
• Docket Number: CIV. 17-5030-JLV
• Citation: 476 F.Supp.3d 926
• Parties: Gerald LESSERT, Special Administrator of the Estate of Richard Claymore Lessert, Deceased; and Richard Claymore Lessert, Plaintiffs, v. BNSF RAILWAY COMPANY, a Corporation, Defendant.
• Court: U.S. District Court — District of South Dakota

476 F.Supp.3d 926

Gerald LESSERT, Special Administrator of the Estate of Richard Claymore Lessert, Deceased; and Richard Claymore Lessert, Plaintiffs,

v.BNSF RAILWAY COMPANY, a Corporation, Defendant.

CIV. 17-5030-JLV

United States District Court, D. South Dakota, Western Division.

Signed August 5, 2020

Charles T. Abourezk, Jon J. LaFleur, Abourezk, Zephier & LaFleur, P.C., Rapid City, SD, Christopher H. Leach, Pro Hac Vice, Hubbell Law Firm, LLC, Scott S. Bethune, Pro Hac Vice, Travis W. Shumate, Pro Hac Vice, Davis, Bethune & Jones, LLC, Kansas City, MO, for Plaintiffs.

Jeffery D. Collins, Cassidy M. Stalley, Lynn, Jackson, Shultz & Lebrun, PC, Rapid City, SD, Caleena S. Braig, Pro Hac Vice, Chad M. Knight, Pro Hac Vice, Knight Nicastro MacKay, LLC, Boulder, CO, for Defendant.

ORDER

JEFFREY L. VIKEN, UNITED STATES DISTRICT JUDGE

INTRODUCTION

A train operated by defendant BNSF Railway Company struck and killed Richard Lessert on January 17, 2017, near Edgemont, South Dakota.¹ Plaintiff Gerald Lessert, as the special administrator of Mr. Lessert's estate and on behalf of his surviving family, brings this action under the Federal Employers’ Liability Act ("FELA"), 45 U.S.C. § 51 et seq. , asserting defendant negligently caused Mr. Lessert's death. (Docket 1). Now pending before the court are the parties’ four motions for summary judgment on issues of negligence and defendant's motion to exclude certain expert testimony. (Dockets 47, 108, 112, 115 & 129). The court also ordered the parties to brief whether the cause of Mr. Lessert's death can be determined on summary judgment. (Dockets 181, 186 & 187).

The court referred this case to United States Magistrate Judge Daneta Wollmann for resolution of pretrial motions pursuant 28 U.S.C. § 636(b)(1) and its standing order of April 2, 2018. (Docket 121). The magistrate judge concluded in a report and recommendation ("R&R") that defendant violated 49 C.F.R. § 214.315 by failing to brief Mr. Lessert and his crew on safety measures when it assigned them to work on a track and was thus negligent per se. (Docket 179). She further concluded in a separate order that four of plaintiff's experts should be excluded because their opinions only concerned negligence—which would be irrelevant if defendant were negligent per se—but that plaintiff's damages expert should be permitted to testify. (Docket 184). Defendant objects to the R&R and the order. (Dockets 185 & 189). Plaintiff responded to defendant's objections but did not file any objections of his own.

The Federal Magistrate Act provides two separate standards of review. For most pretrial matters, such as a motion to exclude expert opinions, the court "may reconsider" the magistrate judge's order "where it has been shown that the ... order is clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A). For dispositive matters, including motions for summary judgment, the court is required to "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id. at § 636(b)(1). The court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id.

For the reasons given below, the court overrules defendant's objections to the magistrate judge's R&R on negligence in part and sustains them in part. The court finds defendant violated § 214.315 and was negligent per se. The court further concludes genuine disputes of material fact prevent determining the issue of causation on summary judgment. The court then largely affirms the magistrate judge's order permitting plaintiff's damages expert to testify. Finally, the court adopts the magistrate judge's R&R—to which no party objected—concerning certain proposed damages. (Docket 180).

I. Facts

The following factual recitation is drawn from the voluminous record the parties submitted.² Where disputed, the court views facts in the light most favorable to the nonmoving party with respect to an individual issue.³ Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ; see also Thompson-Harbach v. USAA Fed. Sav. Bank, 359 F. Supp. 3d 606, 614 (N.D. Iowa 2019) ("Where a court confronts cross motions for summary judgment, the court views the record in the light most favorable to plaintiff when considering defendant's motion, and the court views the record in the light most favorable to defendant when considering plaintiff's motion.").

On January 17, 2017, Mr. Lessert, Doug Schmitz and Stanley Mitchell were all BNSF maintenance of way workers. (Dockets 49 at ¶ 9 & 110 at ¶¶ 6-8). As the name suggests, maintenance of way workers are responsible for maintaining the railway track for train use, including by cleaning snow and ice out of the tracks.⁴ (Docket 173-9 at p. 7). For federal regulatory purposes, the three men were "roadway workers." (Docket 110 at ¶¶ 9-11). Mr. Lessert was the foreman of the three-person maintenance of way crew. (Docket 131 at ¶ 20).

BNSF intended to move a train from a main track onto the Deadwood wye on January 17 to facilitate testing of train communication equipment. (Docket 117 at ¶ 3). A wye is an intersection of three tracks used to turn or store trains. The third leg of the Deadwood wye—the portion of the wye separate from the main track forming the other two legs—was often used to park railcars.⁵ (Docket 49 at ¶ 2). Trains are directed from the main track onto the third leg of the wye using a device called a switch. (Docket 117 at ¶ 2). Snow and ice can obstruct a switch and impede its use.⁶ Id. at ¶ 3.

Dennis Stirmel was the "foreman in charge" on January 17 for the Edgemont region. (Docket 153-1 at pp. 3-4). He was "in charge of lining out duties[.]" Id. at p. 4. In his deposition, Mr. Stirmel testified he was "[d]elegating the duties that were assigned that day to all the work groups" and "letting them know what the plan was." Id. at p. 5.

However, Mr. Stirmel's ordinary job was as a track inspector. Id. at p. 2. Chuck Oleson was the roadmaster for the region. (Docket 173-22 at p. 3). He ordinarily would have "delegate[d] things that [were] going on" and held a morning planning call. Id. at p. 5. Mr. Oleson was in Scottsbluff, Nebraska, on January 17, leading to Mr. Stirmel's role as foreman in charge. Id. at p. 3. On January 16, Mr. Oleson had told Mr. Stirmel "they were going to be pulling those cars out of the Deadwood wye, and to make sure to have Edgemont up there and work with the trainmaster." Id. at p. 7. Mr. Lessert's crew—operating out of Edgemont—was responsible for cleaning switches in the area. Id.

At 7:30 a.m., Mr. Stirmel had a phone call with Mr. Lessert and his work crew.⁷ Id. at p. 6. He described the purpose of the call as "to make sure [the crew] were aware" about the use of the Deadwood wye and "to have them ... communicate with the trainmaster to find out just exactly what kind of help from maintenance of way that they were going to need." Id. Mr. Stirmel knew there were train cars in the wye that "had been in there for a quite a while[,]" which led him to conclude that the switch "had not been thrown or cleaned since first snowfall[.]" Id. at p. 7. However, Mr. Stirmel did not know the details for the use of the wye—"which direction the train was coming in, which direction the train was going out," etc.—so he directed Mr. Lessert to contact the trainmaster "to figure out what needed to be done." Id. at pp. 7-8. Mr. Lessert's crew confirmed to Mr. Stirmel "they would get ahold of Jim Korecky, trainmaster, and find out what needed to be done." Id. at p. 8.

Rodney Huber, a track inspector, was also on the call. Id. Mr. Huber testified they discussed "that the trainmaster and the road foreman needed somebody to come clean the Deadwood wye switch[.]" (Docket 153-9 at p. 5). They did not discuss who would clean the switch. Id. at p. 6. It was assumed Mr. Lessert and his crew would clean the switch because they were responsible for that section of track. Id. at pp. 6-7. Mr. Stirmel agreed with Mr. Huber's description of the call as "assign[ing]" the task of "clean[ing] snow and ice out of the wye switch" to Mr. Lessert's crew. (Docket 173-22 at p. 6).

Mr. Stirmel did not conduct a safety briefing during the 7:30 a.m. call. (Docket 173-22 at pp. 8-9). He did not discuss

the means by which the maintenance of way crew would have on-track protection[,] ... anything about on-track safety procedures[,] ... anything about movements on adjacent track ... [or] anything about the nature of the work to be performed or the characteristics of the location there where they would be cleaning snow and ice out of the[ ] switches[.]

Id. Nor did Mr. Stirmel designate a roadway worker in charge for Mr. Lessert's crew, although he was aware each of the three crew members were qualified for the position. Id. at p. 9. Mr. Stirmel did not consider the 7:30 a.m. call a job safety briefing. Id. He referred to it as a "job task briefing[,]" which he described as "merely a way of [him] communicating with another work group as to the work that needed to be done." Id. at pp. 9-10.

Mr. Stirmel testified he could not conduct a job safety briefing correctly without personally assessing conditions on site. Id. at p. 10. He was located in Newcastle, Wyoming, during the morning call, approximately 60 miles from Edgemont. Id. He believed "the foreman or employee in charge" was responsible for assessing safety conditions "when they get to that job location." Id. The crew would have then had the job safety briefing "on location when they found out what they needed to do." Id. at p. 11.

The trainmaster was James Korecky. (Docket 173-9 at p. 4). Mr. Korecky was working to move railcars off of the Deadwood wye on January 17. Id. at pp. 4-5. Mr. Korecky and Shad Sowers, a BNSF foreman, were checking crossings—where roads cross the railway tracks—around the wye. (Docket 149-5 at p. 3). One particular...