Higgins v. Burlington Northern and Santa Fe Railroad Company

Filing 35

ORDER Entered by Chief Judge James E. Shadid on 6/10/14. Defendant BNSF's Motion for Summary Judgment 31 is GRANTED. This matter is now terminated, and any existing deadlines are vacated. (SW, ilcd)

E-FILED

Tuesday, 10 June, 2014 11:40:56 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
DENNIS GLENN HIGGINS,
Plaintiff,
v.
BURLINGTON NORTHERN and
SANTA FE RAILROAD COMPANY,
a corporation,
Defendant.

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Case No. 12-3072

ORDER
This matter is now before the Court on Defendant BNSF’s Motion for Summary Judgment.
For the reasons set forth below, the Motion [31] is GRANTED.
BACKGROUND
This action is brought pursuant to the Federal Employers’ Liability Act, 45 U.S.C. §§ 51-59.
Plaintiff, Dennis Higgins (“Higgins”) was born on September 26, 1950. He began working as a
laborer for BNSF in 1977 and after a year, switched to the position of machinist for the remainder
of his employment. As a machinist, Higgins generally serviced locomotives, repaired damage to rail
cars, and replaced parts. From 1986 to 1996, he worked in the Galesburg, Illinois diesel shop. In
1996, he went to the West Burlington, Iowa show, where he worked until returning to Galesburg in
2005 or 2006. When he returned to Galesburg, Higgins worked in the diesel pit, working on brake
shoes, changing oil, and checking for leaks in the locomotives. After some period of time, he
switched to the “ready side,” where he hooked up locomotives, did air tests on locomotives, and got
outbound locomotives ready for departing trains.

Higgins and Steven Heckenberg (“Heckenberg”) worked together from the time Higgins
returned from West Burlington until his retirement in 2010. During this time, Dave Anderson
(“Anderson”) was their supervisor. At no time did Higgins complain to Anderson that his knee
interfered with his ability to work or that he felt that his work was unsafe. Nevertheless, Higgins and
Heckenberg allocated their job responsibilities between them to accommodate Higgins’ knee
problems beginning in 2005. Both Heckenberg and Anderson noticed Higgins’ knee problems in
2005. Heckenberg saw Higgins limping and favoring one leg and offered him his choice of which
part of the job he wanted to do to make it easier on Higgins.
In October 2009, Higgins’ left knee was evaluated by Dr. Steven Potaczek, an orthopedic
surgeon, who drained approximately 50 cubic centimeters of fluid from Higgins’ knee. He was
diagnosed as having chronic arthritis of both knees that people get as part of the normal aging
process, with the left knee being worse than the right. Dr. Potaczek testified that he did not know
what Higgins’ job duties were on the railroad and that, irrespective of where he worked, he probably
would have gotten arthritis anyway.
On March 26, 2010, Higgins saw another orthopedic surgeon, Dr. Joseph Martin. Dr. Martin
diagnosed osteoarthritis of the left knee but had no opinion as to what caused the osteoarthritis; he
had no knowledge of Higgins’ job duties as a machinist or the length of time he performed those
duties. After discussing both surgical and non-surgical options, Higgins decided to proceed with a
left knee replacement on June 7, 2010. Post-operatively, in August and September 2010, Higgins
had no complaints, with no pain and a full range of motion in his knee. Dr. Martin determined that
Higgins could return to work on September 8, 2010. Higgins asserts that following his knee surgery,
he was no longer able to perform his duties as a machinist.
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Dr. Lonn Hutcheson, an expert in the areas of occupational and functional anatomy,
conducted an in depth evaluation of Higgins’ workplace and job duties at the BNSF diesel shop in
Galesburg. Dr. Hutcheson concluded:
The duties and tasks performed by Dennis Higgins, in my opinion,
and to a reasonable degree of scientific certainty, were not unsafe, nor
would it have been foreseeable by BNSF that Dennis Higgins was or
would be at risk for the development of musculoskeletal disorder. If,
in fact, putative occupational risk factors such as prolonged highly
forceful activity, awkward posture, and highly repetitive activity are
causally associated with the development of musculoskeletal
disorders, the duties, tasks and activities that I have reviewed do not
present a foreseeable risk for such disorders.
Another expert, Dr. Kurt Hegmann, opined:
Mr. Higgins’ job physical tasks appear to have involved minimal to
minor amounts of kneeling and/or squatting. There is no
epidemiological literature associating such minor amounts of
kneeling and/or squatting with the development of knee arthritis. Mr.
Higgins’ non-occupational factors completely explain his condition.
Thus, Mr. Higgins’ knee arthritis and the need for a knee replacement
is non-occupational and was not caused, aggravated, accelerated
and/or contributed to by his occupational activities.
On March 1, 2012, Higgins brought this action alleging that his knee injuries were the result
of negligence by BNSF in that they failed to provide him with a safe place to work, failed to provide
adequate equipment, failed to provide safe methods of work, failed to provide adequate instructions,
failed to warn of the dangers associated with cumulative trauma disorders, failed to properly evaluate
the workplace for conditions and methods at risk for the development of cumulative trauma disorder,
failed to educate on the risk of cumulative trauma disorder, failed to institute or develop a proper
ergonomic program at the West Burlington shop, and assigned duties which BNSF knew or should

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have known were beyond Higgins’ capacity or which could otherwise aggravate his medical
condition or cause injury to him. BNSF has moved for summary judgment, and this Order follows.
LEGAL STANDARD
A motion for summary judgment will be granted where there are no genuine issues of
material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).
The moving party has the responsibility of informing the Court of portions of the record or affidavits
that demonstrate the absence of a triable issue. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct.
2548, 2552 (1986). The moving party may meet its burden of showing an absence of material facts
by demonstrating "that there is an absence of evidence to support the non-moving party's case." Id.
at 2553. However, a plaintiff’s uncorroborated testimony or subjective belief standing alone is
insufficient to defeat a motion for summary judgment. Weeks v. Samsung Heavy Indus. Co., Ltd.,
126 F.3d 926, 939 (7th Cir. 1997); Chiaramonte v. Fashion Bed Group, Inc., 129 F.3d 391, 401 (7th
Cir. 1997). Any doubt as to the existence of a genuine issue for trial is resolved against the moving
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513 (1986); Cain v.
Lane, 857 F.2d 1139, 1142 (7th Cir. 1988).
If the moving party meets its burden, the non-moving party then has the burden of presenting
specific facts to show that there is a genuine issue of material fact. Matsushita Elec. Indus. Co., Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56 (1986). Federal Rule of Civil
Procedure 56(e) requires the non-moving party to go beyond the pleadings and produce evidence of
a genuine issue for trial. Celotex Corp., 106 S.Ct. at 2553. This Court must then determine whether
there is a need for trial -- whether, in other words, there are any genuine factual issues that properly
can be resolved only by a finder of fact because they may be reasonably resolved in favor of either
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party. Anderson, 106 S.Ct. at 2511; Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 931 (7th Cir.
1995).
ANALYSIS
FELA “provides a broad federal tort remedy for railroad workers injured on the job.”
Crompton v. BNSF Railway Co., 745 F.3d 292, 296 (7th Cir. 2014). The statute provides in relevant
part that:
[E]very common carrier by railroad . . . shall be liable in damages to
any person suffering injury while he is employed by such carrier . . .
for such injury or death resulting in whole or in part from the
negligence of any of the officers, agents, or employees of such carrier,
or by reason of any defect or insufficiency, due to its negligence, in
its cars, engines, appliances, machinery, track . . . or other equipment.
45 U.S.C. § 51. Furthermore, although a plaintiff must prove the common law elements of
negligence, namely foreseeability, duty, breach, and causation, in order to prevail, “a relaxed
standard of causation applies under FELA.” Crompton, 745 F.3d at 296, citing CSX Transp., Inc.
v. McBride, 131 S.Ct. 2630, 2636 (2011). However, FELA is not a substitute for workers’
compensation and does not make the employer an insurer. Myers v. Illinois Central Railroad Co.,
629 F.3d 639, 642 (7th Cir. 2010).
BNSF first challenges Higgins’ ability to establish causation. Specifically, Defendant argues
that there is no evidence establishing a causal relationship between his knee injuries and his specific
duties for the railroad. Higgins responds that the arthritis condition in his left knee was aggravated
by and became symptomatic as a result of negligence by BNSF in his workplace.
Where a layperson can easily determine what caused an injury, expert testimony is not
required, but with a cumulative trauma injury such as the knee injury at issue in this case, which

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refers not to one specific injury, but to numerous “wear and tear” disorders caused by the
performance of repetitive work over a long period of time, “determining what caused it is not usually
obvious to a layman and thus requires expert testimony.” Id., at 643. Here, Dr. Potaczek initially
evaluated Higgins’ knee in 2009, diagnosed chronic arthritis that men and women get as part of the
normal aging process. (Potaczek Dep. At 7-11) He also opined, “irrespective of where he works or
what have you, he probably would have gotten arthritis anyway. So I got it, you are going to get it,
you are going to get it, he got it.” Id. Dr. Martin also diagnosed osteoarthritis in the left knee and
allowed Higgins to return to work without restrictions following his knee replacement in 2010. Dr.
Martin knew nothing of Higgins’ job duties and, even when such duties and conditions were
described to him, did not believe that they impacted Higgins’ osteoarthritis and did not express any
opinion, to a reasonable degree of medical certainty, as to what caused his osteoarthritis.
There is also expert testimony from Dr. Hutcheson, who conducted an assessment of
Higgins’ working conditions and reviewed relevant medical records. Dr. Hutcheson then opined to
a reasonable degree of scientific certainty that the duties, tasks, and activities associated with
Higgins’ job did not expose him to unsafe conditions or pose a foreseeable risk for the development
of musculoskeletal disorders. Dr. Hegmann, a specialist in occupational medicine, reviewed
Higgins’ deposition, medical records, and other materials about Higgins and railroad work to support
his opinion that there are no epidemiological studies associating the minimal amount of kneeling
and/or squatting in Higgins’ railroad occupation with a greater risk of arthritis or the development
of arthritis; rather, Higgins’ non-occupational factors (e.g., age, obesity, and bow-leggedness)
completely explain his condition. Accordingly, Dr. Hegmann opined that the Higgins’ arthritis and

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need for a knee replacement was not caused, aggravated, accelerated and/or contributed to by his
occupational activities.
Higgins attempts to recharacterize his injury as the aggravation of his pre-existing
osteoarthritis and responds that Dr. Potaczek indicated that while not causing arthritis, particular job
duties could make the condition become symptomatic. However, the testimony actually indicated
that there was no direct correlation with railroad activity and that any kind of generic activity (e.g.,
cutting the grass, walking to the store, walking to the car, playing baseball) can make symptoms
appear. (Potaczek Dep. at 15-17) Dr. Potaczek testified that arthritis symptoms are related to
variables such as weight, activity, and age without direct correlation to occupation. Id., at 15.
Higgins also cites testimony from Dr. Martin that Higgins’ work activities were a component
of the symptomatology and that repetitive lifting, bending, stooping, and climbing could contribute
to and/or exacerbate arthritis. However, a review of this testimony does not support Higgins’
suggestion that this activitiy was a cause of his arthritis. Rather, the portion of the transcript being
referred to is as follows:
Q. I would ask you to assume, Doctor, that on a daily basis Mr.
Higgins was walking on uneven, rocky surfaces, which is commonly
referred to on the railroad as ballast, that he was climbing on and off
locomotives on a daily basis, six steps up on metal steps 16 times a
day and that in regard to other job duties he had, was bending and
squatting on a regular basis, replacing parts on locomotives and
railroad cars and that he worked in what is commonly referred to as
a pit, which is a concrete surface where he would be underneath an
engine, squatting and inspecting engines for the railroad.
In regard to those activities, do you have an opinion based upon a
reasonable degree of medical certainty that that was a component of
the symptomatology that he developed while working for the
railroad?

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***
A. A component of the symptomatology, if that means would that
cause him pain, I think that’s reasonable, yes.
(Martin Dep. at 20-21) Thus, while Dr. Martin stated that certain activities like those suggested by
Higgins’ attorney could contribute to or exacerbate arthritis, he refused to opine with any degree of
certainty that such activities could be the primary cause of osteoarthritis and stated his lack of
awareness of any definitive relationship between repetitive activity and osteoarthritis. Id., at 21-23.
When the activities were subsequently clarified, Dr. Martin indicated that the type of climbing
Higgins had to do would not qualify as the kind of “high-impact” activity that could potentially
increase the amount of joint wear in a worker and that the size of the ballast walked on would make
a difference as well. Id., at 24-28
The only other evidence identified by Higgins in support of causation is his own testimony
that his knees were sore when he went home after work and the testimony of his co-worker,
Heckenberg, that the work was physically demanding. This does not constitute expert testimony.
At best, Higgins has pointed to testimony suggesting that certain activities could exacerbate arthritic
conditions; he has not cited any expert testimony establishing that the actual conditions of his work
environment did so in this case or otherwise tying his working conditions to his injuries. Thus,
Higgins has failed to introduce any expert testimony to create a genuine issue of material fact as to
the causation of his osteoarthritis, which is required in this Circuit. Myers, 629 F.3d at 643, citing
Wills v. Amerada Hess Corp., 379 F.3d 32, 46-47 (2nd Cir. 2004); Claar v. Burlington N.R.R. Co.,
29 F.3d 499, 504 (9th Cir. 1994) (noting that “expert testimony is necessary to establish even that
small quantum of causation required by FELA.”)

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Even less of a showing has been made of any evidence indicating that by requiring Higgins
to perform his basic job duties, BNSF exposed him to an unsafe work environment or was otherwise
negligent. Under FELA, the employer has a duty to use reasonable care in providing employees with
a safe workplace. Holbrook v. Norfolk Southern Railway Co., 414 F.3d 739, 742 (7th Cir. 2005).
Dr. Hutcherson opined that he found no unsafe conditions in Higgins’ work environment. Higgins
offers no evidence to rebut this finding. Other than the bald statements that he was not offered knee
pads or knee mats and the conclusory assertion that he “has a sufficient dispute as to . . . the
negligence elements as alleged to proceed to a jury determination of liability in this case,” Higgins
has identified no evidence sufficient to promote the reasonable inference of negligence by BNSF in
this case. (Higgins’ Response at 6) It is not sufficient to sit back and rely on the allegations of the
complaint at summary judgment.
The Seventh Circuit has stated, “We often call summary judgment the ‘put up or shut up’
moment in the litigation, by which we mean that the non-moving party is required to marshal and
present the court with the evidence [he] contends will prove [his] case. And by evidence, we mean
evidence on which a reasonable jury could rely.” Porter v. City of Chicago, 700 F.3d 944, 956 (7th
Cir. 2012); see also, Fed. R. Civ. P. 56. “Conclusory allegations, unsupported by specific facts, will
not suffice.” Id., at 956, citing Payne v. Pauley, 337 F.3d 767, 772-73 (7th Cir. 2003). As Higgins
has failed to put forth evidence from which a reasonable jury could conclude that his work
environment was unreasonably unsafe or that BNSF failed to exercise reasonable care for his safety,
summary judgment is appropriate on this element, as well.1
1

Higgins also fails to respond with any evidence refuting the expert testimony that BNSF had no
reason to foresee that his job duties in servicing locomotives would cause him to develop knee
degeneration or osteoarthritis.
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Finally, BNSF contends that Higgins filed his lawsuit after the period of limitations because
it was filed more than three years from the time that he believed or should have believed that his
work was causing serious physical deficits in his left knee. Specifically, BNSF notes that the
Complaint in this matter was filed on March 1, 2012, while Higgins clearly suffered from his
osteoarthritis prior to 2009. Heckenberg also testified that Higgins’ knee problems were obvious to
him when he returned to work in Galesburg in 2005.
“At some point, persons with degenerative conditions have a duty to investigate the cause.”
Tolston v. National Railroad Passenger Corp., 102 F.3d 863, 866 (7th Cir. 1996). That being said,
the Court need not determine whether Higgins’ Complaint was timely given the findings that he has
failed to raise a genuine issue of material fact requiring resolution at trial as to causation, negligence
by BNSF, or foreseeability of his injuries. BNSF is therefore entitled to summary judgment.
CONCLUSION
For the reasons set forth above, Defendant BNSF’s Motion for Summary Judgment [31] is
GRANTED. This matter is now terminated, and any existing deadlines are vacated.
ENTERED this 10th day of June, 2014.

s/ James E. Shadid
James E. Shadid
Chief United States District Judge

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