Spence v. Union Pacific Railroad Company
Filing
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MEMORANDUM OPINION AND ORDER granting 34 Motion for Summary Judgment. Signed by Honorable Timothy L. Brooks on March 20, 2019. (tg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
MARION D. SPENCE II
V.
PLAINTIFF
CASE NO. 3:17-CV-3074
UNION PACIFIC RAILROAD COMPANY
DEFENDANT
MEMORANDUM OPINION AND ORDER
Currently before the Court are Defendant Union Pacific Railroad Company’s
(“Union Pacific”) Motion for Summary Judgment (Doc. 34), Brief in Support (Doc. 35), and
Statement of Undisputed Material Facts (Doc. 36). No response was ever filed to these
documents. For the reasons given below, Union Pacific’s Motion is GRANTED.
I. BACKGROUND
Mr. Spence filed this lawsuit against his former employer, Union Pacific, in
September of 2017. He alleges that three years earlier, in September 2014, he sustained
a shoulder injury on the job, due to Union Pacific’s negligence. He brings this action
under the Federal Employers’ Liability Act (“FELA”), which makes railroad companies
liable to their employees whom they have negligently injured. See 45 U.S.C. § 51. On
January 18, 2019, Union Pacific moved for summary judgment on Mr. Spence’s claims.
See Doc. 34. Mr. Spence never filed any response, despite being given an extended
deadline by which to do so. See Doc. 39. Union Pacific’s Motion is now ripe for decision.
II. LEGAL STANDARD
When a party moves for summary judgment, the Court must grant it “if the movant
shows that there is no genuine dispute as to any material fact and the movant is entitled
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to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The Court must view the facts in
the light most favorable to the non-moving party, and give the non-moving party the
benefit of any logical inferences that can be drawn from the facts. Canada v. Union Elec.
Co., 135 F.3d 1211, 1212–13 (8th Cir. 1997). The moving party bears the burden of
proving the absence of any material factual disputes. Fed. R. Civ. P. 56(a); Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986).
If the moving party meets this burden, then the non-moving party must “come
forward with ‘specific facts showing that there is a genuine issue for trial.’” Matsushita,
475 U.S. at 587 (quoting then-Fed. R. Civ. P. 56(e)) (emphasis removed). These facts
must be “such that a reasonable jury could return a verdict for the nonmoving party.”
Allison v. Flexway Trucking, Inc., 28 F.3d 64, 66 (8th Cir. 1994) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “The nonmoving party must do more than
rely on allegations or denials in the pleadings, and the court should grant summary
judgment if any essential element of the prima facie case is not supported by specific
facts sufficient to raise a genuine issue for trial.” Register v. Honeywell Fed. Mfg. &
Techs., LLC, 397 F.3d 1130, 1136 (8th Cir. 2005) (citing Celotex Corp v. Catrett, 477 U.S.
317, 324 (1986)).
Our Local Rules require every movant for summary judgment to support its motion
with “a separate, short and concise statement of the material facts as to which it contends
there is no genuine dispute to be tried.” See Local Rule 56.1(a). Likewise, every
opponent of summary judgment must file a statement of “the material facts as to which it
contends a genuine dispute exists to be tried.” See Local Rule 56.1(b). All facts in the
movant’s statement “shall be deemed admitted unless controverted by” the opponent’s
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statement. See Local Rule 56.1(c). The facts described below are treated as undisputed
and drawn directly from Union Pacific’s Statement of Undisputed Material Facts and
supporting exhibits, because Mr. Spence never filed any response controverting them.
III. DISCUSSION
In September 2014, Mr. Spence was working for Union Pacific in Laredo, Texas.
See Doc. 36, ¶ 1. His initial job was to lay tie plates on crossties, using something called
a “gabby stick.” See id. at ¶¶ 2–3. For this Opinion and Order’s purposes there is no
need to dive deeply into the details of what that task entailed, other than to observe that
it involved repeatedly lifting, moving, and setting down heavy things. See id.; see also
Doc. 35-1, p. 34. At some point during Mr. Spence’s first week on this job, he began
experiencing shoulder pain, which then steadily increased. See Doc. 35-1, p. 33. During
Mr. Spence’s deposition, he was unable to recall a specific incident when he first began
experiencing this pain. See id. After following the advice of one of his foremen to take
the rest of that day off, Mr. Spence returned to work the following day and laid tie plates
all day. See id. at 34. Then on the next day, he was reassigned to a different task and
does not appear to have laid tie plates again in September 2014, after which time he took
nineteen months off from work. See id. at 34–35, 38–40.
During Mr. Spence’s time off from work he underwent shoulder surgery to treat
chronic impingement and to repair an anterior labral detachment. See Doc. 35-2, ¶ 6.
He also received several MRIs, both during and after his time off from work. See id. at
¶¶ 5, 7. Union Pacific’s medical expert, Dr. Raymond Peeples, Jr., has reviewed these
and other medical records, and opined that “Mr. Spence has a degenerative condition of
impingement and associated incidental labral tear,” and that “[t]hese are unrelated to
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activities at work and specifically unrelated to the laying of tie plates in September 2014.”
See id. at ¶ 10. Dr. Peeples has further opined that based on his review of the medical
records, “there is no objective evidence of an acute injury to Mr. Spence,” because
impingement syndrome of the shoulder is a degenerative rather than traumatic condition,
which is to say that it is simply “part of the natural aging process.” See id. at ¶ 11. Dr.
Peeples observes that his opinion agrees with that of Mr. Spence’s own treating
orthopedist, Dr. Merwin Moore, who indicated in November 2015 that Mr. Spence’s
shoulder “condition is not work related.” See id. at ¶¶ 5, 7, 9.
Mr. Spence has not provided any expert reports of his own in this case—not even
simply to rebut the opinions of Dr. Peeples. Union Pacific contends that this deficiency is
fatal to Mr. Spence’s case. The Court agrees.
When, as here, a plaintiff in a FELA case cannot “point to a specific incident that
injured him” and the defendant railroad presents a medical expert report opining that the
plaintiff’s work at the railroad “did not cause the injury in question,” then the plaintiff must
present expert testimony of his own to establish a causal connection between the injury
and whatever incident is alleged to have caused the injury, “unless the connection is a
kind that would be obvious to laymen, such as a broken leg from being struck by an
automobile.” See Brooks v. Union Pac. R.R. Co., 620 F.3d 896, 899 (8th Cir. 2010).
Here, as in Brooks, the only evidence in the record regarding causation is that Mr.
Spence’s condition is degenerative rather than traumatic. Cf. 620 F.3d at 897, 898. Since
Mr. Spence has no “expert opinion to refute Union Pacific’s expert causation evidence,”
there are “no genuine fact disputes regarding whether Union Pacific caused [his] injury,”
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which is “an essential element under FELA.” See id. at 900. Thus, summary judgment
is appropriate.
IV. CONCLUSION
IT IS THEREFORE ORDERED that Defendant Union Pacific Railroad Company’s
Motion for Summary Judgment (Doc. 34) is GRANTED. A separate judgment will be
entered contemporaneously with this Order.
IT IS SO ORDERED on this 20th day of March, 2019.
_/s/ Timothy L. Brooks______________
TIMOTHY L. BROOKS
UNITED STATES DISTRICT JUDGE
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