McBee v. CSX Transp., Inc.
| Decision Date | 24 February 2017 |
| Docket Number | No. W2015-01253-COA-R3-CV,W2015-01253-COA-R3-CV |
| Parties | BOBBY McBEE v. CSX TRANSPORTATION, INC. |
| Court | Tennessee Court of Appeals |
Appeal from the Circuit Court for Shelby County
This appeal arises from a negligence action filed by the plaintiff employee in June 2010, pursuant to the Federal Employer Liability Act ("FELA"), see 45 U.S.C. §§ 51-60 (2012), against his former employer, the defendant railroad. The employee, who had worked for the railroad for thirty-nine years in a variety of positions, alleged that he suffered bilateral rotator cuff tears as a result of the railroad's negligence in failing to provide him with proper equipment while he worked as a foreman flagman from January 2007 through March 2009. In February 2012, the railroad filed a motion for summary judgment based on the three-year statute of limitations provided in 45 U.S.C. § 56. Following a hearing, the trial court denied the motion in April 2012 but stated that it would reconsider if presented with additional evidence. The railroad subsequently filed additional motions for summary judgment in January 2014, reasserting the statute-of-limitations defense and asserting that the employee could not prove his claim due to an alleged lack of expert testimony regarding medical causation and an alleged inability to demonstrate the railroad's liability through expert testimony. Following a hearing, the trial court denied the motions for summary judgment as to the statute of limitations and medical causation. The court, however, granted summary judgment in favor of the railroad based on the employee's lack of expert testimony regarding liability. The employee has appealed the judgment, and the railroad has raised an issue regarding the statute of limitations. Having determined that under the circumstances of this action, the employee presented evidence that created a material factual dispute as to whether the railroad negligently contributed to his injuries, we reverse the trial court's grant of summary judgment. We affirm the trial court's judgment in all other respects.
THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which J. STEVEN STAFFORD, P.J., W.S., and BRANDON O. GIBSON, J., joined.
Eugene A. Laurenzi and Jessica Bradley, Memphis, Tennessee, for the appellant, Bobby McBee.
S. Camille Reifers and Brooks E. Kostakis, Memphis, Tennessee, for the appellee, CSX Transportation, Inc.
OPINIONThe plaintiff, Bobby McBee, was employed by the defendant, CSX Transportation, Inc. ("CSX"), from 1970, two years after he graduated from high school, through 2009. Mr. McBee held several positions with CSX, typically remaining in each job for two to four years before exercising his seniority to take a new position or accepting a different position when another employee successfully exercised seniority to "roll" into the job Mr. McBee held at the time. According to Mr. McBee's deposition testimony, during the thirty-nine years he was employed by CSX, he worked successively as a track repairman (1970-1972), tractor machine operator (1972), assistant foreman over a rail gang (1972-1973), foreman over a spot-tamping gang (1973-1975), track bolt machine operator (1975-1976), foreman over a spot-tamping gang (1976-1978), track inspector (1978-1980), track repairman with a section gang (1980-1983), track repairman with a tamping gang (1983-1987), foreman over a section gang (1987-1991), foreman flagman (1991-1993), foreman over a section gang (1993-1997), track inspector (1997-2000), foreman over a tamping gang (2000-2007), and foreman flagman (2007-2009).
Mr. McBee's last day of work for CSX was March 27, 2009, at which time he was released on medical leave to undergo surgery on his left shoulder, including repair of a torn rotator cuff, on March 30, 2009. He then underwent surgery on his right shoulder, again including repair of a torn rotator cuff, on August 7, 2009. Mr. McBee subsequently applied for retirement benefits from CSX on August 18, 2009, officially retiring from his employment at the age of sixty on September 30, 2009.
Mr. McBee initially sought treatment for intermittent pain in his shoulders in 1999 and then again in 2004 and 2005, obtaining diagnoses of degenerative joint disease and arthritis from his family physician, Dr. W. Hardin Coleman, Jr.1 Although Mr. McBeetestified that in 2004, he experienced more pain in his shoulders at work than at home, he further testified that he did not attribute his shoulder pain to any specific duties for CSX until he became a foreman flagman for the second time. Mr. McBee initially testified that he had begun working as a foreman flagman for the second time in June or July 2007, but upon production of records he had kept for CSX as a foreman flagman, he stipulated that he actually began working in this position in January 2007. Mr. McBee stated that his shoulders began to hurt in a different, more severe way than they ever had before in 2008 as he was driving flag posts into the ground by hand, a task he had been performing since January 2007.
According to Mr. McBee, his responsibilities as a foreman flagman included beginning each day by verifying track orders to clear sections of railroad track for repair and then placing track flags on each side of the track as a warning to oncoming train crews. The flags were bolted onto seven-foot-high posts made of angle-iron ("Angle-Iron Flags"). The Angle-Iron Flags, which had to be removed each evening, were driven into the ballast2 or ground along the railroad track to ensure their stability. Mr. McBee stated that during a typical day as a foreman flagman, his physical labor was limited to placing eight Angle-Iron Flags in the morning and removing them in the evening, with the remainder of his work day devoted to monitoring radio communications. During this time period, Mr. McBee was based in Bridgeport, Alabama, and was providing protection on the railroad tracks for a contractor's employees who were tearing down an old bridge. Mr. McBee stated that he was the only railroad worker present on the jobsite.
When questioned regarding what differences he perceived in his duties between the first time he became a foreman flagman in 1991 and the second time in 2007, Mr. McBee stated that CSX previously had provided him with a sledgehammer to drive in the Angle-Iron Flags. He explained that following an incident in 2003 during which an employee had been injured, it was his understanding that the CSX division engineer had prohibited foremen flagmen from using sledgehammers to erect the Angle-Iron Flags in order to prevent injuries caused by metal breaking off the posts when the flag posts were struck by a sledgehammer. Mr. McBee maintained that he began to experience severe pain in both shoulders after a few months of driving the Angle-Iron Flags into the ground by hand.
Dr. Coleman's medical records and deposition testimony indicated that following Mr. McBee's 2004 and 2005 office visits in which he complained of shoulder pain, he next sought treatment for shoulder pain on February 19, 2007, approximately one monthafter he had begun working as a foreman flagman again. Dr. Coleman again diagnosed Mr. McBee with arthritis in his shoulders, with the pain more severe in the left shoulder. Dr. Coleman further diagnosed "tendonitis or a bursitis" of the shoulders. Although Dr. Coleman testified that at this point, Mr. McBee's injuries caused the doctor to consider whether Mr. McBee might have a rotator cuff tear, Dr. Coleman did not think the cuff was torn and did not inform Mr. McBee of the possibility. In June 2008 and again in November 2008, Mr. McBee returned to Dr. Coleman, seeking treatment for severe bilateral shoulder pain. Dr. Coleman continued treating Mr. McBee with anti-inflammatory drugs, including Mobic and a Medrol Dosepak. Mr. McBee returned to Dr. Coleman in February 2009 with especially severe pain in his left shoulder, at which time Dr. Coleman recorded in his notes in part: On February 18, 2009, Dr. Coleman referred Mr. McBee to an orthopedic surgeon, Dr. John Greco.
Testimony and medical records demonstrated that throughout the years, Dr. Coleman had treated Mr. McBee for various other medical conditions, including hypertension, diabetes, gout, and sleep apnea. In his referral letter to Dr. Greco, Dr. Coleman explained that he had been unable to obtain a magnetic resonance imaging scan ("MRI") on Mr. McBee's left shoulder because Mr. McBee "was too broad for the machine" at two local medical facilities. Mr. McBee testified at the time of his July 2011 deposition that he was five feet, six or seven inches tall and weighed approximately 340 pounds. Mr. McBee acknowledged that he had weighed over 300 pounds since leaving his work for the railroad in 2009. Dr. Coleman testified that he had advised Mr. McBee to lose weight for several years but that Mr. McBee so far had not been successful in the attempt.
Dr. Greco initially saw Mr. McBee on February 23, 2009, and scheduled Mr. McBee's left shoulder surgery on March 30, 2009. In the corresponding operative summary, Dr. Greco indicated a preoperative diagnosis of "[l]eft shoulder impingement with acromioclavicular joint disease and partial versus full thickness rotator cuff tear." The postoperative diagnosis was Dr. Greco subsequently performed surgery to repair Mr. McBee's right rotator cuff on August 7, 2009. Dr. Greco testified by deposition that Mr. McBee's left...
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