Straub v. BNSF Railway Company

Filing 42

MINUTE ORDER granting 40 Unopposed Motion for Leave to Correct the Record, by Magistrate Judge Michael E. Hegarty on 1/15/2016.(slibi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-01890-CMA-MEH
GEORGE W. STRAUB, IV,
Plaintiff,
v.
BNSF RAILWAY COMPANY,
Defendant.
______________________________________________________________________________
MINUTE ORDER
______________________________________________________________________________
Entered by Michael E. Hegarty, United States Magistrate Judge, on January 15, 2016.
Plaintiff’s Unopposed Motion for Leave to Correct the Record [filed January 14, 2016;
docket #40] is granted as follows. Plaintiff has clarified that his counsel as well as Defendant
misunderstood which seat adjustment mechanism Plaintiff was using or attempting to use at the time
of his injury. Motion, docket #40 at 1-2; see also Affidavit of George W. Straub, IV (“Plaintiff
Aff.”), docket #40-2 at 1. Plaintiff now clarifies as follows:
At the time of my injury on September 9, 2012, on BNSF 6295, I was attempting to
use the portion of the seat that attaches to the “locomotive wall mounted channel”
(see photo Bates stamped BNSF001125, upper right-hand corner). . . . It is this seat
mechanism that is mounted in and moves in the locomotive wall-mounted channel
that was inspected by Mr. Gay, and referenced in his report (Exhibit A), and by Mr.
Ariounus (Exhibit G, attached). I do not know when the nine (9) photos of the
locomotive chair (BNSF001122-001130) identified in Defendant BNSF Railway
Company’s Initial F.R.C.P. 26(a)(1) Disclosures, ¶ CC were taken or by whom.
These photographs do not demonstrate the part of the seat that bound upon me, and
which I pointed out to Mr. Gay and Mr. Ariounus as the source of the problem, and
were inspected by Mr. Gay and Mr. Ariounus. The closest photograph is
BNSF001128. The slide mechanism, and the release handles, and the locomotive
wall-mounted channels are to the left of the seat seen in BNSF001128. The channel
in which the mechanism slides when released by the handles is mounted to the inside
wall of the locomotive on the engineer’s, or right-hand, side of the locomotive,
facing out the front window.
Plaintiff Aff. at 1-2. In light of this clarification, the Court orders that Plaintiff’s Affidavit [docket
#40-2] stands as a correction to his statements in Plaintiff’s Unopposed Motion for Leave to File
First Amended Complaint [see docket #23] and in Plaintiff’s Second Amended Motion for Leave

to Supplement Plaintiff’s Response to Defendant BNSF Railway Company’s Rule 12(b)(6) Partial
Motion to Dismiss [see docket #36].

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