Marks v. Union Pacific Railroad Company
ORDER granting in part and denying in part 23 Motion for Summary Judgment; denying 26 Motion for Summary Judgment. The motion to supplement 45 is granted. The Clerk is directed to correct the name of docket entry #45 in the docket sheet. Joint status report is due by October 11, 2013. Signed by Judge D. P. Marshall Jr. on 9/19/13. (kpr)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
RODERICK D. MARKS, SR.
UNION PACIFIC RAILROAD COMPANY
Roderick Marks works as a yard conductor, a job also known as a
switchman, at Union Pacific's Pine Bluff yard. Marks alleges that he hurt his
shoulder when he uncoupled two railcars while sorting and switching them.
The Federal Employers' Liability Act required Union Pacific to provide Marks
a reasonably safe place to work and measures whether the railroad did so
with a modified negligence standard. 45 U.S.C. §51. The Safety Appliance
Act required UP to have certain kinds of equipment, including couplers, on
cars and other vehicles used on its lines.
49 U.S.C. §§ 20301(a) &
20302(a)(l)(A). If equipment in use is defective under this second statute,
then UP's liability is settled, and Marks is relieved of having to show any
negligence by the railroad. Whether the Safety Appliance Act applies, and
whether the record presents jury questions, are the issues raised by the
parties' cross motions for summary judgment.
1. The Safety Appliance Act. The applicable statutory words are in the
margin, with the key provision about couplers italicized. 1
argument for judgment as a matter of law is straightforward: because boxcar
No. EEC 5106 was being switched in UP's yard, it was not in use when Marks
allegedly hurt his shoulder uncoupling the boxcar from another car. Use is
a question of law depending upon the totality of the circumstances. Wright
(a) General.- Except as provided in subsection (c) of this section and section
20303 of this title, a railroad carrier may use or allow to be used on any of its railroad lines (1) a vehicle only if it is equipped with(A) couplers coupling automatically by impact, and capable of being
uncoupled, without the necessity of individuals going between the ends of
(B) secure sill steps and efficient hand brakes; and
(C) secure ladders and running boards when required by the
Secretary of Transportation, and, if ladders are required, secure
handholds or grab irons on its roof at the top of each ladder;
(2) except as otherwise ordered by the Secretary, a vehicle only if it is
equipped with secure grab irons or handholds on its ends and sides for
greater security to individuals in coupling and uncoupling vehicles;
(3) a vehicle only if it complies with the standard height of drawbars
required by regulations prescribed by the Secretary;
(4) a locomotive only if it is equipped with a power-driving wheel brake
and appliances for operating the train-brake system; and
(5) a train only if(A) enough of the vehicles in the train are equipped with power or
train brakes so that the engineer on the locomotive hauling the
train can control the train's speed without the necessity of brake
operators using the common hand brakes for that purpose; and
(B) at least 50 percent of the vehicles in the train are equipped with
power or train brakes and the engineer is using the power or train
brakes on those vehicles and on all other vehicles equipped with
them that are associated with those vehicles in the train.
v. Arkansas & Missouri Railroad Co., 574 F.3d 612, 620 (8th Cir. 2009). The
Wright case dealt with a locomotive and the Locomotive Inspection Act; but
the in-use provision of that Act echoes the one in the Safety Appliance Act, so
the same totality standard applies. Steer v. Burlington Northern, Inc., 720 F.2d
975, 977 n.3 (8th Cir. 1983); compare 49 U.S.C. § 20301 with 49 U.S.C. § 20701.
Here, albeit with some quibbling at the edges, the facts material on the
statutory interpretation question are undisputed. NQ 24-1, 36 & 41.
Marks allegedly hurt his shoulder during switching operations in the
bowl of the Pine Bluff yard. A co-worker was operating a remote-control
switch engine. Marks was walking beside cars on the tracks in the bowl. Car
no. FTTX 972934 and car no. EEC 5106 were coupled on bowl track 45. To
switch the first car to track 44, Marks had to lift the uncoupling lever, or pin
lifter, on the second car. This action would release the coupler, allowing car
no. FTTX 972934 to be kicked to the other track. The pin lifter wouldn't move
the first time Marks tried to lift it because the knuckle made by the joined
couplers of the two cars was stretched. These circumstances were routine, not
indicative of any equipment problem. The cars were pushed a bit closer
together, and Marks lifted again. This time, Marks says and UP disputes, the
pin lifter moved but got stuck on its way up, jerking Marks's arm, releasing
car no. FTTX 972934, and also injuring his shoulder. NQ 24-5 at 25-28. Boxcar
no. EEC 5106 had been inspected and OK' d when it arrived at UP's yard. The
car was not out of service or being repaired. It was not on a repair track or at
some other place where repairs are done. It was not blue-flagged. The car
had not yet been assembled into a train or cleared in a pre-departure
inspection. The car's pin lifter allegedly malfunctioned in the middle of
routine switching operations in the rail yard. An inspection after the incident
revealed no problem in the pin lifter.
Considering the totality of the circumstances, this boxcar was in use
within the meaning of the Safety Appliance Act when the pin lifter allegedly
didn't function like it was supposed to. Wright, 574 F.3d at 620. The Court
has studied the statute and the precedent, which is extensive and mixed.
There is no definitive word from either the Supreme Court or the United
States Court of Appeals for the Eighth Circuit. This Court is persuaded by the
analysis in Ditton v. BNSF Railway Co., 2013 WL 2241766, *9-*13 (C. D. Cal. 21
May 2013). It is a hand brake case. But hand brakes and couplers are both
part of the statute's mandated safety equipment for cars and other vehicles;
and Ditton's synthesis of the statute, and the main authorities, is careful and,
this Court concludes, correct. The Court acknowledges but respectfully
disagrees with, contrary decisions on this particular point from the United
States Courts of Appeals for the Fourth and Fifth Circuits. Trinidad v. Southern
Pacific Transportation Co., 949 F.2d 187, 189 (5th Cir. 1991); Phillips v. CSX
Transportation, Inc., 190 F.3d 285,289 (4th Cir. 1999). These decisions elide the
statute's distinction between vehicles and trains.
Compare 49 U.S.C.
§ 20302(a)(1)-(3) with 49 U.S.C. § 20302(a)(5). And they misapprehend the
Supreme Court's scattered dicta, which admittedly points in different
Compare United States v. Erie Railroad Co., 237 U.S. 402, 408 (1915)
(saying, in a train-transfer case, that the coupler and hand brake provisions
of the Act sweep more broadly than the air brake provisions) with United
States v. Northern Pacific Railway Co., 254 U.S. 251, 254 (1920)(saying, in a
case about transfers between yards, that a moving locomotive with cars
attached is without the provision of the [SAA] only when it is not a train;
as where the operation is that of switching, classifying and assembling cars
within railroad yards for the purpose of making up trains.") and United
States v. Seaboard Air Line Railroad Co., 361 U.S. 78,80 (1959) (noting that
switching operations are not train movements" within the meaning of the
UP contends that, as long as a car is involved in switching operations
in a yard, the railroad is not using the vehicle on its line. No yard-switching
exception for switching activities in the yard, however, appears in the Safety
Appliance Act. It would be passing strange if the Act's required safety
equipment for cars-automatic couplers, efficient hand brakes, secure sill
steps, secure ladders and grab irons- was not required, after all, in a place
(rail yards) where this equipment was used regularly during a time
(switching) when this equipment was needed to accomplish the Act's
UP argues that switching in the yard merits a different construction of
the statute, so vehicles can be inspected and fixed before they're assembled
into trains and cleared to run subject to the SAA's liability. Wright, 574 F.3d
at 620. There are two answers. First, all cars must be inspected on entering
the yard, like car no. EEC 5106 was. NQ 24-8 at 7 & 16-17. This provides an
opportunity to take a car with an equipment problem out of service or to
make quick repairs.
Second, under Wright's required look at all the
circumstances, a car out of service, or being repaired, or in limbo at a place of
repair, would almost certainly not be in use within the statute's meaning.
UP's argument thus proves too much.
The Court is fortified in its conclusion by some older cases involving
couplers. In each, part of a coupler allegedly malfunctioned in the yard
during switching. And the Safety Appliance Act applied. E.g., Delk v. St.
Louis & San Francisco Railroad Co., 220 U.S. 580, 582-86 (1911); O'Donnell v.
Elgin, Joliet & Eastern Railway Co., 338 U.S. 384,385 (1949); Chicago, Milwaukee,
St. Paul & Pacific Railroad Co. v. Linehan, 66 F.2d 373, 374 (8th Cir. 1933);
Coleman v. Burlington Northern, Inc., 681 F.2d 542, 543-45 (8th Cir. 1982).
Similar yard/ switching cases about defective hand brakes that were covered
by the SAA are in the books too. E.g., Myers v. Reading Co., 331 U.S. 477, 47880 (1947). The SAA' s text has evolved over time, but the changes do not seem
material on the use point. No one appears to have argued in any of these
cases that a car was not in use simply because it was being switched in a rail
yard. That the railroad was using the car within the meaning of the SAA was
the premise of all these decisions. Issues not argued are not decided. But this
page of history shows, if not a settled understanding, two things at least: a
long-common assumption about the reach of the Safety Appliance Act, and
the novelty of the Trinidad/Phillips "switching in the yard" exception.
Marks's request for judgment as a matter of law on his SAA claim is
rejected too. A railroad employee with long experience says that a sticky pin
lifter is not performing properly. Dragoun Depo. NQ 28-5 at 14. The only
evidence that this pin lifter malfunctioned is Marks's testimony. This is not
a case where part of a coupler broke and the equipment's failure was patent.
Compare, e.g., O'Donnell, supra. No problem or defect was found in the device
when car no. EEC 5106 came into the yard. None was found after Marks's
incident when UP tested the pin lifter. The statements of Marks's coworker
are muddy. It is not clear he could see what happened very well. Taking the
testimony in the light most favorable to the railroad at this point, Marks
struggled with the pin lifter on the first pull when the knuckle between the
cars was stretched, but the pin lifter operated successfully on the second pull
after the cars were bunched. Compare McComb Aff. NQ 24-7, with McComb
Stmt. NQ 28-6 and Marks Depo. NQ 24-5 at 25.
All this comes down, then, to a question of Marks's credibility. If the
jury believes him, that will be enough, notwithstanding the evidence of
proper functioning before and after, to sustain a verdict on his SAA claim. If
the jury disbelieves Marks in light of the other proof, his claim will fail. The
fact finder must make the call. Coleman, 681 F.2d at 544-46. Marks need not
prove a defect, but the jury must resolve whether the pin lifter in fact failed
to perform as required by the SAA. Norfolk and Western Railway Co. v. Hiles,
516 U.S. 400,409 (1996).
2. Federal Employers' Liability Act. All the issues here, except a
causation point discussed below, are for the jury too. An SAA violation
would of course establish UP's FELA liability. Coleman, 681 F .2d at 544.
Putting that possibility aside, any negligence on the railroad's part, no matter
how slight, would support a recovery on Marks's stand-alone FELA claim.
CSX Transportation, Inc. v. McBride, 131 S. Ct. 2630, 2636 (2011). Marks has
testified on deposition that, on his second pull, the pin lifter moved about
halfway then stuck, jerking and injuring his shoulder, before releasing. NQ 245 at 25-28. While UP argues hard that, given the rest of the proof, either things
did not happen as Marks says or no injury resulted, Marks's testimony (if
believed) is enough to get to the jury on causation and the other elements of
his negligence case. McBride, 131 S. Ct. at 2642-43. That a switchman might
injure his shoulder using a sticky pin lifter was reasonably foreseeable to UP.
McBride, 131 S. Ct. at 2643.
This is not a case into the frontier of the
unexpected, for example, where a truck driver injured himself trying to move
a several hundred pound dumpster alone. E.g., Ethyl Corp. v. Johnson, 345
Ark. 476,483 49 S.W.3d 644,649 (2001) (Arkansas law). The railroad need not
have foreseen that Marks would injure his shoulder using this pin lifter for
there to be a submissible case- the kind of harm alleged is reasonably
foreseeable. Gallick v. Baltimore & Ohio R.R. Co., 372 U.S. 108, 117-21 (1963);
Davis v. Burlington Northern, Inc., 541 F.2d 182, 185 (8th Cir. 1976).
3. Causation and Experts. That a switchman might hurt his shoulder
using a pin lifter is a matter of common sense, much like "a broken leg from
being struck by an automobile." Brooks v. Union Pacific Railroad Co., 620 F.3d
896, 899 (8th Cir. 2010)(quotation omitted). Who hasn't strained a muscle
pulling a sticky lever or lifting something? But Marks's alleged damage is a
traumatic injury- a torn rotator cuff, requiring surgery and extensive
treatment. The causal connection between that alleged acute injury and the
pin lifter incident is not a matter obvious to someone without medical
training. So Marks needs expert testimony to get to the jury on the alleged
traumatic injury. 620 F.3d at 899. Even though Marks's causation burden is
minimal under McBride- a cause, not the proximate cause- an expert must
establish the causal connection.
UP offers the thorough and comprehensive opinion of Dr. Peeples that
Marks's rotator cuff tear was a degenerative condition. It was, he says, a
product of age, weight, ordinary wear and tear, not trauma from a particular
event such as tussling with a sticky pin lifter. NQ 24-14. In response, Marks
falls back to a medical record from his first visit to Dr. Bowen, who treated
him and eventually operated on him. NQ 28-3. Marks does not meet UP's
proof with a responding affidavit or declaration from Dr. Bowen.
The difficulty here is not a matter of form. Though probably prepared
by Dr. Bowen's assistant, and hearsay, the Court has no doubt that the
medical record's contents could be offered in admissible form at trial.
CIV. P. 56(c)(2). Dr. Bowen signed the report, and his treatment of Marks
gives him personal knowledge. The difficulty is a matter of substance under
Rule of Evidence 702.
Dr. Bowen's opinion was tentative. His uimpression" was 1. Left
shoulder impingement" and 2. Rotator cuff tear, traumatic." NQ 28-3 at 2.
But the trauma, the critical part of the opinion on the causation issue, seems
to be based entirely on Marks's report about his injury's history. Dr. Bowen
hedged in his uplan" for Marks. uDue to the fact that he never had symptoms
before, I would anticipate this was an acute injury, though he did have an AC
joint at an earlier time for which he does not recall." NQ 28-3 at 2 (emphasis
added). In this early record, Dr. Bowen did not rule out other causes. He did
not address the absence of trauma in the first MRI' s results. He did not
explain what the surgery eventually revealed because it hadn't happened yet.
And Dr. Bowen did not state his conclusion about cause with enough
This is all too thin to create a jury question about the cause of the rotator
cuff tear in light of Dr. Peeple' s unequivocal opinion: a Marks has an acquired
medical condition, rotator cuff, consistent with increased age, increased
weight, and the presence of degenerative osteophytes of the AC joint plus
impingement from a type II acromion. His shoulder condition is degenerative
and was not caused by the June 5, 2010 incident at Union Pacific Railroad."
NQ 24-14 at 2. Marks has not met expert proof with expert proof sufficient to
create an issue of material fact about the cause of his torn rotator cuff. Brooks,
620F.3d at900; Bland v. Verizon Wireless, LLC, 538 F.3d 893,899 (8thCir. 2008).
On causation of the rotator cuff tear, UP's motion is granted with a
caveat. Marks may move to reconsider before 4 October 2013 with a sworn
opinion from Dr. Bowen that satisfies Rule 702. The Court grants this
opportunity for several reasons. Dr. Bowen, as a treating physician, is not
within Marks's control.
Trial is five months away.
argument was that no expert testimony was required, an argument now
rejected. And Marks made a timely and adequate disclosure3 that Dr. Bowen
would be testifying on the causation issue based on his treatment. NQ 35-1.
Though Marks should have gotten an affidavit or declaration before now, in
the circumstances the Court will extend a final opportunity to get the
causation issue" two blocked." Brooks, 620 F.3d at 898 n.2. If Dr. Bowen does
not provide this testimony by the deadline, then Marks's proof of injury must
stop at a hurt shoulder; the rotator cuff tear, surgery, and treatment will not
come into the case.
The Court of Appeals has not yet decided whether Brooks's Rule 26
holding about a treating doctor's causation opinion survived the 2010
changes to the Rule. Bradshaw v. FFE Transportation Services, Inc., 715 F.3d
1104, 1109 and n. 3 (8th Cir. 2013). This Court concludes that the Court of
Appeals would hold that it does not and that FED. R. CIV. P. 26(a)(2)(C),
which requires no written report, applies. See Advisory Committee Notes
UP's motion for summary judgment, NQ 23, is denied in part and granted
in part with a caveat. Marks'smotionforsummaryjudgment,NQ 26, is denied.
UP's motion to supplement, NQ 45, is granted. 4 There is no prejudice to Marks
from allowing the railroad to provide the omitted exhibit, which is already
part of the summary-judgment record. Joint status report due by 11 October
2013. The report should cover length of proof in hours, whether defense
counsel still has a conflict with the February trial date, whether the parties
want a settlement conference, and any other matter needing ventilation.
United States District Judge
The Court directs the Clerk to correct the name of NQ 45 in the docket
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