Smart v. BNSF Ry. Co.

• Decision Date: 04 March 2016
• Docket Number: No. 113,809.,113,809.
• Parties: Jay E. SMART, Appellant, v. BNSF RAILWAY COMPANY, Appellee.
• Court: Kansas Court of Appeals

52 Kan.App.2d 486

369 P.3d 966

Jay E. SMART, Appellant,

v.BNSF RAILWAY COMPANY, Appellee.

No. 113,809.

Court of Appeals of Kansas.

March 4, 2016.

Andrew H. McCue, of Accurso Law Firm, of Kansas City, Missouri, and Drew C. Baebler, of Bauer & Baebler, P.C., of St. Louis, Missouri, for appellant.

Craig M. Leff and Spencer L. Throssell, of Overland Park, for appellee.

Before GARDNER, P.J., HILL and POWELL, JJ.

GARDNER, J.

This case asks whether the district court erred in granting summary judgment to BNSF Railway Company (BNSF) based on the court's exclusion of various experts whom plaintiff Jay E. Smart anticipated would opine as to breach of duty and to causation in Smart's case brought under the Federal Employers' Liability Act (FELA), 45 U.S.C. § 51 et seq. (2012). We find no abuse of discretion in the district court's exclusion of Dr. Tyler Kress, the liability expert, so we find it unnecessary to address any error in the exclusion of the causation opinions of plaintiff's treating physicians. Accordingly, we affirm.

Procedural background

Jay E. Smart worked for BNSF for nearly 20 years. In 2010, he filed this case under FELA alleging he suffered cumulative trauma injuries to his neck, back, hips, legs, and arms as a result of his job-related duties as a railroad electrician in the Topeka service and maintenance terminal in Topeka, Kansas. Those duties included repetitive climbing, lifting, carrying, engaging in repetitive motion using power tools, working in confined and awkward positions, and overuse. He further alleged he was required to work "without being afforded reasonably safe conditions," which resulted in permanent injuries to his muscles, tendons, ligaments, discs, and soft tissues in his neck and arms.

BNSF moved for summary judgment in January 2014, arguing Smart could not prove the necessary elements of his FELA claim. The district court denied that motion but granted a separate motion for summary judgment based on the statute of limitations which excluded claims for Smart's injuries to his back, hips, legs, and arms. Smart does not challenge that ruling on appeal.

Smart's FELA claim for his neck injuries remained at issue. During discovery, Smart informed BNSF of the experts he intended to call at trial and described their testimony. This included Dr. Tyler Kress, a liability expert experienced in ergonomics. Dr. Kress, Smart's sole liability expert, planned to testify that BNSF had failed to provide a reasonably safe place to work and was negligent by failing to have adequate ergonomic tools and work practices to prevent injuries such as those Smart sustained. Smart also disclosed five treating physicians who planned to testify that Smart's work caused or contributed to his injuries.

After BNSF deposed Smart, Dr. Kress, and the treating physicians, BNSF moved to strike all of Dr. Kress' testimony, as well as the causation opinions of Smart's treating physicians. The district court held a hearing and granted both motions. The district court found Dr. Kress had no specific information regarding Smart's case and his "testimony is so generic that it could apply to almost any worker, in any position, anywhere dealing with a railroad." The district court excluded Dr. Kress' testimony because it lacked sufficient factual foundation to show its reliability and thus would not be helpful to the jury.

Thereafter, the parties agreed Smart could not make a prima facie case under FELA without competent expert testimony and without causation testimony. Smart then filed an interlocutory appeal, but we dismissed it as untimely. BNSF renewed its previous motion for summary judgment, and the district court granted it. Smart timely appeals, alleging error in the district court's underlying decision to exclude his expert opinions on liability and causation.

Summary judgment standard

Review of a grant of summary judgment requires us to look to pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, to see if they show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Waste Connections of Kansas, Inc. v. Ritchie Corp., 296 Kan. 943, 962, 298 P.3d 250 (2013). We first review the exclusion of Dr. Kress' testimony. The parties do not dispute that Dr. Kress' testimony, if admitted, would have created sufficient material disputes of fact to withstand BNSF's motion for summary judgment on the issue of negligence. Nor do the parties dispute that without Dr. Kress' testimony, Smart lacks sufficient evidence to create a material dispute of fact regarding BNSF's breach of duty. Thus, the crucial question presented on appeal is whether the district court properly excluded Dr. Kress' testimony.

FELA requirements

We initially address Smart's argument that FELA is a broad remedial statute that must be construed liberally to effectuate its humanitarian purpose. Smart implies that granting summary judgment is rarely, if ever, appropriate in a FELA case.

Congress enacted FELA in 1908 to provide a comprehensive scheme for railroad workplace injuries, preempting state-law tort claims. Norfolk Southern R. Co. v. Sorrell, 549 U.S. 158, 165, 127 S.Ct. 799, 166 L.Ed.2d 638 (2007). Under FELA:

"Every common carrier by railroad while engaging in commerce between any of the several States ... shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce ... for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment." 45 U.S.C. § 51 (2012).

We have recognized a lower standard of proof for causation in FELA actions. See Knowles v. Burlington Northern R.R. Co., 18 Kan.App.2d 608, 613, 856 P.2d 1352, rev. denied 254 Kan. 1007 (1993); see also CSX Transp., Inc. v. McBride, 564 U.S. 685, 131 S.Ct. 2630, 2640–41, 180 L.Ed.2d 637 (2011) (rejecting traditional proximate cause standard in favor of more expansive causation standard; finding it sufficient that railroad's negligence played " ‘any part’ " in producing the injury). "It is firmly established that questions of sufficiency of evidence for the jury in cases arising under FELA in state courts are determined by federal rules." Norton v. Norfolk Southern Ry. Co., 350 S.C. 473, 567 S.E.2d 851 (2002). The relaxed causation standard has prompted one circuit to note that "numerous FELA actions have been submitted to a jury based upon ... evidence scarcely more substantial than pigeon bone broth." Harbin v. Burlington Northern R. Co., 921 F.2d 129, 132 (7th Cir.1990).

While it is true that under FELA the quantum of evidence sufficient to present a jury question of causation is less than it is in a common-law tort action, the "relaxed causation standard under FELA does not affect [plaintiff's] obligation to prove that [the employer] was in fact negligent." Volner v. Union Pacific R. Co., 509 Fed.Appx. 706, 708 (10th Cir.2013) (quoting Van Gorder v. Grand Trunk Western R.R., Inc., 509 F.3d 265, 269 [6th Cir.2007] ). We agree with the reasoning of those courts that have concluded that the relaxed causation standard under FELA and the standard for admission of expert testimony "are distinct issues" that "do not affect one another." Claar v. Burlington Northern R. Co., 29 F.3d 499, 503 (9th Cir.1994) ; see Bowers v. Norfolk Southern Corp., 537 F.Supp.2d 1343, 1352 (M.D.Ga.2007). In other words, "the fact that FELA employs a relaxed standard of causation ‘does [not] mean that in FELA cases courts must allow expert testimony that in other contexts would be inadmissible.’ " Bowers, 537 F.Supp.2d at 1352. Rather, the admission of expert testimony is controlled—even in FELA cases—by the rules of evidence and Daubert. 537 F.Supp.2d at 1352. Accordingly, the Tenth Circuit continues to apply the standard Daubert analysis to expert opinions offered in FELA claims. See, e.g., Summers v. Missouri Pacific R.R. System, 132 F.3d 599, 601–03 (10th Cir.1997).

Employer liability under FELA is based on the employer's negligence,

[52 Kan.App.2d 791]

not merely on the fact of the employee's injuries. Ellis v. Union Pacific R. Co., 329 U.S. 649, 653, 67 S.Ct. 598, 91 L.Ed. 572 (1947). Accordingly, in order to recover under FELA, Smart had the burden to prove the traditional common-law negligence elements of duty, breach of a duty, foreseeability of injury, and causation with its attendant relaxed burden. See Williams v. National R.R. Passenger Corp., 161 F.3d 1059, 1062 (7th Cir.1998) ; Volner, 509 Fed.Appx. at 708 ; Wilson v. BNSF Railway. Co., No. 100,115, 2009 WL 2948656, at *5 (Kan.App.2009) (unpublished opinion), rev. denied 290 Kan. 1105 (2010).

" ‘[T]he [FELA] plaintiff must prove that the railroad, with the exercise of due care, could have reasonably foreseen that a particular condition could cause injury. [Citations omitted.] The defendant's duty is measured by what a reasonably prudent person should or could have reasonably anticipated as occurring under like circumstances. [Citation omitted.]’ " Davis v. Burlington Northern, Inc., 541 F.2d 182, 185 (8th Cir.), cert. denied 429 U.S. 1002, 97 S.Ct. 533, 50 L.Ed.2d 613 (1976).

"We point out that a railroad is not an insurer. ‘ "If [the railroad] has no reasonable ground to anticipate that a particular condition ... would or might result in a mishap and injury, then [the railroad] is not required to do anything to correct [the] condition." [Citation omitted.]’ CSX Transp., Inc. v. McBride, 564 U.S. 685, 131 S.Ct. 2630, 2643, 180 L.Ed.2d 637 (2011)." Davila v. BNSF Railway Co., No. 107,533, 2013 WL 1859208, at *3 (Kan.App.) (unpublished opinion), rev. denied 298 Kan. 1201 (2013).

Smart thus had the burden under FELA to show a genuine dispute of material fact that BNSF...