Zarecki v. National RR Passenger Corp.

• Decision Date: 25 January 1996
• Docket Number: No. 95 C 1075.,95 C 1075.
• Citation: 914 F. Supp. 1566
• Parties: Judy A. ZARECKI, Plaintiff, v. NATIONAL RAILROAD PASSENGER CORPORATION, d/b/a Amtrak, Defendant.
• Court: U.S. District Court — Northern District of Illinois

914 F. Supp. 1566

Judy A. ZARECKI, Plaintiff, v. NATIONAL RAILROAD PASSENGER CORPORATION, d/b/a Amtrak, Defendant.

No. 95 C 1075.

United States District Court, N.D. Illinois, Eastern Division.

January 25, 1996.

COPYRIGHT MATERIAL OMITTED

Louis C. Cairo and Edward W. Pirok, Goldberg, Weisman and Cairo, Ltd., Chicago, IL, for plaintiff.

David R. Schmidt and Peter F. Higgins, Lord, Bissell & Brook, Chicago, IL, for defendant.

MEMORANDUM OPINION AND ORDER

CASTILLO, District Judge.

Plaintiff Judy Zarecki ("Zarecki"), a reservation sales agent for National Railroad Passenger Corp. d/b/a ("Amtrak"), was diagnosed with carpal tunnel syndrome while employed at Amtrak. Zarecki alleges that her condition developed because Amtrak required her to perform her job in an unsafe manner and failed to provide her with safe equipment. She seeks relief under the Federal Employers' Liability Act ("FELA"), 45 U.S.C. §§ 51-60 (1988), alleging that Amtrak was negligent. Amtrak now moves for summary judgment. For the reasons stated herein, Amtrak's motion is granted.

RELEVANT FACTS

The following undisputed facts are gleaned from the parties' respective Local Rule 12(M) statements of material facts and accompanying exhibits.¹

Zarecki began working for Amtrak as a reservation sales agent on November 1, 1983. Her duties included answering phones, checking schedules and routes, and making reservations. Like most modern day ticketing agents, Zarecki used a personal computer, an accompanying computer keyboard, and a phone headset with a microphone so that her hands were free to operate the keyboard. Zarecki performed these tasks while seated in an adjustable chair.

Zarecki has worked full time during her approximate twelve years at Amtrak. During each eight-hour work day, Zarecki had two scheduled breaks, one eighteen minute break and another forty-eight minute break for lunch. In addition, she was free to take a break and use the washroom, water fountain or coffee machine.

Although Zarecki did complain to fellow employees about her working conditions at Amtrak, she did not complain to any supervisor before she was first diagnosed with carpal tunnel syndrome. Zarecki specifically testified that she never complained to anyone at Amtrak about her working conditions before 1994 except for fellow workers. (Zarecki Dep. at 113-16). She did, however, complain to her supervisor in 1994.

Zarecki was diagnosed with carpal tunnel syndrome in 1992.² (Zarecki Dep. at 62). Zarecki first tried to alleviate her pain by taking medication, but eventually decided to undergo surgery in 1994 upon the suggestion of her physician. (Id. at 100). She returned to work without restrictions in August of 1994.

Zarecki contends that Amtrak caused her condition in one or more of the following ways: (1) failing to provide safe equipment and work space; (2) failing to provide proper work methods to avoid the repetitive nature of the work; (3) failing to provide proper training; (4) failing to properly supervise; and (5) failing to warn of the possibility of acquiring carpal tunnel syndrome. (Complaint ¶ 6).

Amtrak has submitted the report of an ergonomist, David T. Ridyard, President of Applied Ergonomics Technology, who investigated the work conditions at Amtrak and formed an opinion as to the risk of developing carpal tunnel syndrome from performing Zarecki's job. Ridyard's report notes that three potential carpal tunnel "risk factors" are generally associated with computer keying activities: (1) a very high number of repetitions; (2) non-neutral wrist postures; and (3) forceful exertions. Although these risk factors are generally associated with keying activities, Ridyard found that all of these factors were essentially absent at the Chicago Amtrak facility and he concluded that "there are no potential carpal tunnel syndrome and other upper extremity cumulative trauma disorder risk factors at the Chicago Amtrak facility" where Zarecki worked. (See Def.'s Ex. D, Ridyard Report).

Ridyard found that the number of keystrokes (per hand) per minute of a reservation sales agent at Amtrak was approximately 7 to 8, which is equivalent to approximately two words per minute. To assess this factor, Ridyard recorded the number of keystrokes during one-minute observations of twelve different sales representatives who were randomly selected. Ridyard also found that the sales agents could maintain their wrists in a neutral position, meaning that they were not bent significantly in any direction. None of the conditions that adversely affect a computer operator's ability to maintain neutral wrist positions, such as desks and chairs that are at an improper height, existed at the Chicago Amtrak facility. Indeed, Zarecki admits that she was able to keep her hands in a neutral position. (Pl.'s Facts ¶ 10). Finally, Ridyard found that the keyboards could be operated with low finger forces. (See Def.'s Ex. D, Ridyard Report).

Ridyard's expert report, which is uncontroverted, presents an evidentiary hurdle that Zarecki must overcome in order to survive Amtrak's motion for summary judgment. However, instead of presenting her own expert testimony regarding risk factors for carpal tunnel syndrome present at Amtrak's workstations, Zarecki relies almost exclusively on an affidavit by her treating physician, Dr. Farrell, to defeat Amtrak's motion for summary judgment.³ Because of the paramount importance of Dr. Farrell's affidavit to Zarecki's efforts to survive Amtrak's motion, we quote it in its entirety:

1. I have been retained as an expert witness with respect to the above entitled cause on behalf of the Plaintiff, Judy Zarecki.

2. I make this Affidavit in opposition to the Defendant National Railroad Passenger Corporation's Motion for Summary Judgment.

3. My present business address is 7600 College Dr., Palos Heights, Illinois 60463.

4. I am duly licensed to practice medicine in the State of Illinois, and I am board certified in orthopaedic surgery in the State of Illinois.

5. I have examined the Plaintiff in this case, Judy Zarecki.

6. I have reviewed the medical records of Judy Zarecki.

7. It is my opinion based upon a reasonable degree of medical certainty that the Bilateral Carpal Tunnel Syndrome sustained by Judy Zarecki, was caused by her work duties as assigned by the Defendant National Railroad Passenger Corporation.

8. It is also my opinion that the nature of the work duties at the Defendant National Railroad Passenger Corporation was such that it was reasonably foreseeable that Judy Zarecki, could sustain Bilateral Carpal Tunnel Syndrome in her hands or wrist or sustain some other hand/wrist injury.

9. I make this affidavit upon my personal and professional knowledge and upon my examination of Judy Zarecki, the medical records of Judy Zarecki, and, if sworn as a witness, I can and will testify competently to the facts hereinbefore stated.

(Farrell Aff.). It is fair to say that Farrell's affidavit is the only evidence presented by Zarecki in support of her opposition to summary judgment.

Amtrak moves for summary judgment contending that there is no genuine issue of material fact as to each element of the plaintiff's negligence action.

ANALYSIS

Summary Judgment Standard

Summary judgment is proper only if the record shows 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. FED.R.CIV.P. 56(c). A genuine issue for trial exists only when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The court must view all evidence in a light most favorable to the nonmoving party, Valley Liquors, Inc. v. Renfield Importers, Ltd., 822 F.2d 656, 659 (7th Cir.), cert. denied, 484 U.S. 977, 108 S.Ct. 488, 98 L.Ed.2d 486 (1987), and draw all inferences in the nonmovant's favor. Santiago v. Lane, 894 F.2d 218, 221 (7th Cir.1990). However, if the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. Liberty Lobby, 477 U.S. at 249-50, 106 S.Ct. at 2510-11; Flip Side Productions, Inc. v. Jam Productions, Ltd., 843 F.2d 1024, 1032 (7th Cir.), cert. denied, 488 U.S. 909, 109 S.Ct. 261, 102 L.Ed.2d 249 (1988). In determining whether a genuine issue exists, the court "must view the evidence presented through the prism of the substantive evidentiary burden." Liberty Lobby, 477 U.S. at 254, 106 S.Ct. at 2513. In making its determination, the court's sole function is to determine whether sufficient evidence exists to support a verdict in the nonmovant's favor. Credibility determinations, weighing evidence, and drawing reasonable inferences are jury functions, not those of a judge when deciding a motion for summary judgment. Liberty Lobby, 477 U.S. at 255, 106 S.Ct. at 2513-14. Finally, we note that mere conclusory assertions, unsupported by specific facts, made in affidavits opposing a motion for summary judgment, are not sufficient to defeat a proper motion for summary judgment. See Lujan v. National Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 3188-89, 111 L.Ed.2d 695 (1990) ("The object of Rule 56(e) is not to replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit."); First Commodity Traders, Inc. v. Heinold Commodities, Inc., 766 F.2d 1007, 1011 (7th Cir.1985) ("Conclusory statements in affidavits opposing a motion for summary judgment are not sufficient to raise a genuine issue of material fact"); see also Jones v. Merchants Nat'l Bank & Trust Co., 42 F.3d 1054, 1057 (7th Cir.1994) ("Self-serving assertions without factual support in the record will not defeat a motion for summary judgment.") (internal quotation marks omitted).

Zarecki's Negligence Claim

Under FELA, railroad companies are liable in damages to any employee who suffers injury due to the railroad's...