Williams v. Southern Pacific Transp. Co.

• Decision Date: 28 December 1992
• Docket Number: Civ. A. No. J91-0172(W).
• Parties: Milton M. WILLIAMS v. SOUTHERN PACIFIC TRANSPORTATION COMPANY.
• Court: U.S. District Court — Southern District of Mississippi

813 F. Supp. 1227

Milton M. WILLIAMS v. SOUTHERN PACIFIC TRANSPORTATION COMPANY.

Civ. A. No. J91-0172(W).

United States District Court, S.D. Mississippi, Jackson Division.

December 28, 1992.

John H. Ott, McComb, MS, for plaintiff.

Charles G. Copeland, Michael W. Baxter, Jackson, MS, for defendant.

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

WINGATE, District Judge.

I. Introduction

Before the court is the defendant's motion for summary judgment pursuant to Federal Rule of Civil Procedure 56(b)¹ (hereinafter "Rule 56"). In this lawsuit, filed under the Federal Employers Liability Act (hereinafter "FELA"), 45 U.S.C. § 51² and the Locomotive Boiler Inspection Act (hereinafter "BIA"), 45 U.S.C. § 23,³ the plaintiff, Milton M. Williams, a resident citizen of Mississippi (hereinafter "Williams"), seeks compensatory damages for defendant's alleged negligent acts in exposing plaintiff to excessive and constant employment-related noises which allegedly have caused plaintiff to experience a significant hearing loss. Defendant Southern Pacific Transportation Company (hereinafter "Southern Pacific") asserts two grounds in support of its motion for summary judgment: (1) that plaintiff has failed to demonstrate a causal connection between his alleged hearing loss and any alleged negligence or breach of a statutory duty by Southern Pacific during plaintiff's employment; and (2) that plaintiff's action is barred by the applicable three-year statute of limitations set forth in 45 U.S.C. § 56.⁴ Persuaded that both grounds have merit, this court hereby grants defendant's motion for summary judgment. The court reasons as follows.

II. Facts

Williams was employed by Southern Pacific, first, as a locomotive fireman and then as a railroad engineer, from 1947 to 1985. Williams retired from Southern Pacific on November 7, 1985, at the age of 61.

Prior to his employment with Southern Pacific, Williams served in the Army from 1943 to 1945. During his service, which included combat in the European theater, Williams was exposed to the noise of rifles, machine guns, and explosives. During this time, Williams never wore hearing protection.

Williams first noticed his hearing loss sometime in the early 1970's, while enroute from Avondale, Louisiana, to New Orleans. During the early 1970's, Williams saw a physician two or three times about his hearing problems. Since his retirement, Williams' wife has told him he has a hearing problem. In 1985, Williams shopped for hearing aids, but never purchased any.

In 1986, Williams attended, along with other retired railroad employees, a meeting to explore the possibility of pursuing a claim against Southern Pacific for hearing loss. Shortly after that meeting, Williams called an attorney to inquire about legal action against Southern Pacific for his hearing loss. The attorney told Williams that he had a statute of limitations problem.

On or about January 11, 1991, Williams went to Beltone Hearing Service and received a hearing evaluation, administered by Debbie Fortenberry (hereinafter "Fortenberry"). On or about June 8, 1992, Williams was evaluated by Gene Thompson (hereinafter "Thompson"), an audiologist and the plaintiff's only expert witness.

According to Fortenberry and Thompson, Williams' impairment is due to a sensorineural hearing loss. Fortenberry has no opinion as to the cause of Williams' hearing loss. Thompson suspects Williams' hearing loss is noise-related, but he, too, has no opinion as to what particular type of noise actually caused, or contributed to, Williams' hearing loss.

The plaintiff filed his complaint on or about April 11, 1991. On or about May 7, 1991, the complaint was served on the defendant, who filed an answer on or about May 30, 1991.

III. Failure to State a Claim

In order to recover under FELA, a plaintiff must establish: (1) that he was injured within the scope of his employment; (2) that said employment was in furtherance of the railroad's commerce in interstate transportation; (3) that his employer was negligent; and (4) that this negligence played a part in causing the injury. Sinkler v. Missouri Pacific Railroad Co., 356 U.S. 326, 330, 78 S.Ct. 758, 762, 2 L.Ed.2d 799 (1958); Green v. Terminal River Ry. Co., 763 F.2d 805, 808 (6th Cir.1985).

The BIA imposes absolute liability upon a defendant where a plaintiff presents proof of an unsafe locomotive component and injury which is proximately caused by the unsafe condition. Green, 763 F.2d at 810. A plaintiff need not establish that the defect was the sole cause of injury, Carter v. Atlanta & St. Andrews Bay Railway Co., 338 U.S. 430, 70 S.Ct. 226, 94 L.Ed. 236 (1949), as contributory proximate cause is sufficient.

The Supreme Court expressed the standard for summary judgment in Celotex Corporation v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1968), as follows:

In our view, the plain language of Rule 56(c) mandates the entry of summary judgment after adequate time for discovery and upon a motion against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be no genuine issue as to any material fact, since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial.

After adequate time for discovery, the plaintiff here has failed to demonstrate that the defendant has committed any act of negligence or breached any statutory duty allegedly owed to the plaintiff. Further, the facts before this court indicate that the plaintiff has failed to put forth any evidence of causation, an essential element under both FELA and the BIA.

For example, Fortenberry testified as follows:

Q. As I understand it, you don't have any opinions as to what caused Mr. Williams' hearing loss; is that correct?

A. If you are asking me, did I diagnose the cause of hearing loss, no.

Q. Can you diagnose the cause of his hearing loss?

A. No.

Q. And you are not representing to us any opinions as to the cause of his hearing loss, is that correct?

A. I am not — I can't — I can tell you what causes a nerve type hearing loss just the same way I told Mr. Williams when he asked me. Every person that I test in this office when I tell them they have a sensorineural type of hearing loss, they ask me, "Well, what caused this hearing loss?" That's what they ask me point blank is "What caused my hearing loss," and I say, "Well, there's a lot of different things that cause hearing loss, and it was probably a mixture of a lot of different things, but there's no way to know what caused your hearing loss."

* * * * * *

Q. But as far as telling us or Mr. Williams what, in fact, caused his particular hearing loss, you can't say?

A. No. I couldn't do that. No.

(Deposition of Debbie Fortenberry, pp. 59-60, 62)

The plaintiff's only expert witness, Thompson, testified as follows:

Q. Okay. And you don't have any opinions as to the particular or the exact cause of Mr. Williams' hearing loss, do you?

A. My opinion is that I suspect that his hearing loss is noise related.

Q. What do you mean by, "suspect?"

A. I feel like that it's a high probability that noise is the main factor that caused his hearing loss.

Q. But you can't say what type of noise?

A. I don't say which noise.

Q. You don't have any opinions as to the type of noise which may have caused Mr. Williams' hearing loss?

A. No sir.

Q. Is his hearing pattern — as shown on this audiogram — is it consistent with a pattern of hearing loss which would show up for noise exposure due to gun fire, for example, in the military?

A. That's a good possibility.

Q. Okay. And you've not ruled out or you cannot say whether or not Mr. Williams' childhood diseases may have caused part of his hearing loss?

A. Well, I can't rule that out, but the fact that he had not suspected any hearing loss until 1980, you know, is a pretty good indicator that it came on later.

* * * * * *

Q. Okay. And do you know whether the aging process may have caused Mr. Williams' hearing loss or part of his hearing loss?

A. No, sir, I don't.

(Deposition of Gene Thompson, pp. 63-64)

The deadline for designating experts has passed, and it is clear that Williams has not presented any medical or expert testimony which could establish a causal nexus between the plaintiff's alleged hearing loss and exposure to noise due to Southern Pacific's alleged negligence or breach of a statutory duty while employed by the defendant. Neither Fortenberry nor Thompson has testified that railroad noise caused or contributed to the plaintiff's alleged loss of hearing. The plaintiff's bare assertion that he "would show that the element of causation has been established through deposition testimony of the plaintiff and his witnesses ...," (Memorandum brief in opposition to defendant Southern Pacific Transportation Company's motion for summary judgment, p. 1), absent the presentation of any supporting proof, is not the sort of response required by Rule 56. Supra, note 1, at 1228. Hence, this court must conclude that plaintiff has failed to offer any proof of causation, an element of proof essential to his case.

IV. Statute of Limitations

The applicable statute of limitations here is found in 45 U.S.C. § 56, the pertinent part of which states:

No action shall be maintained under this chapter unless commenced within three years from the day the cause of action accrued.

The questions here are simply on what date did this cause of action accrue and after accrual whether the plaintiff filed this action within three years of that date. Compliance with the statute of limitations is a condition precedent to recovery, and the failure to commence the action within three years from the date of its accrual bars the plaintiff's remedy and destroys the defendant's liability as well. Emmons v....