Porte v. Illinois Central Railroad Company
Filing
41
ORDER AND REASONS: IT IS ORDERED that the 18 Motion for Summary Judgment is DENIED, as set forth in document. Signed by Judge Ivan L.R. Lemelle on 9/14/2018. (jls)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ALVIN J. PORTE
CIVIL ACTION
VERSUS
NO. 17-5657
ILLINOIS CENTRAL
RAILROAD COMPANY
SECTION: “B”(5)
ORDER AND REASONS
Before
the
Court
is
Defendant
Illinois
Central
Railroad
Company’s Motion for Summary Judgment (Rec. Doc. 18) and Plaintiff
Alvin J. Porte’s Memorandum in Opposition (Rec. Doc. 30). For the
reasons discussed below,
IT IS ORDERED that the Motion (Rec. Doc. 18) is DENIED.
FACTS AND PROCEDURAL HISTORY
Plaintiff
is
a
resident
of
Louisiana
who
worked
for
Defendant’s predecessor-in-interest for approximately 14 years as
a railroad carman/mechanic. See Rec. Doc. 1 at 2. Defendant is a
corporation conducting business as a common carrier by railroad in
numerous states, including Louisiana. See id.
Plaintiff started his employment in 1963, working as a carman
from 1964 to 1971. See id.; see also Rec. Doc. 30 at 1. Plaintiff
alleges that his work required him to be regularly exposed to
Carbon Tetrachloride, a “hazardous and carcinogenic chemical.” See
Rec. Doc. 1 at 2. The chemical was stored in 55 gallon drums and
used to clean rail car braking systems. See id. Defendant never
1
notified Plaintiff about the chemical or any other substance it
was exposing him to, nor did Defendant give any warnings or supply
any protections to guard against the “hazardous exposures.” See
id. Through inhalation and direct skin contact of the chemical,
Plaintiff contracted kidney cancer 1. See id. Plaintiff learned of
his condition in July 2014 and realized that it could be related
to his railroad employment in 2016. See id. at 3.
On June 8, 2017, Plaintiff filed his complaint under FELA, 45
U.S.C. § 51, to recover damages for the personal injuries he
sustained in the line of duty. See id. at 1. On July 05, 2017,
Defendant filed its answer, denying Plaintiff’s allegations and
asserting affirmative defenses. See Rec. Doc. 4.
Since then,
Defendant has filed four motions to preclude certain arguments,
issues, and testimony at trial. See Rec. Doc. Nos. 15, 16, 17, 31.
Specifically,
Defendant
seeks
to
exclude
Plaintiff’s
expert
testimony on breach of duty and causation. See id. Plaintiff
submitted an opposition to each those motions. See Rec. Doc. Nos.
27, 28, 29.
On August 7, 2018, Defendant file its motion for summary
judgment. See Rec. Doc. 18. On August 14, 2018, Plaintiff replied
in opposition. See Rec. Doc. 30.
1
Specifically, Plaintiff was diagnosed with renal cell carcinoma. See Rec.
Doc. 30 at 3.
2
LAW AND ANALYSIS
FELA, 45 U.S.C. § 51, authorizes railroad employees to recover
damages from their employer for “injury or death resulting in whole
or in part from the railroad’s negligence.” 45 U.S.C. § 51.
Specifically, the statute, in pertinent part, states that:
every common carrier by railroad while engaging in
[interstate] commerce . . . shall be liable for damages
to any person suffering injury while he is employed by
such carrier in such commerce . . . 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,
roadbed, works, boats, wharves, or other equipment. Id.
The statute is the exclusive remedy for railroad employees injured
due to the negligence of the railroad. See Huffman v. Union Pac.
R.R., 675 F.3d 412, 416 (5th Cir. 2012).
To prevail under FELA, 45 U.S.C. § 51, a plaintiff must show
that (1) the defendant is a common carrier by railroad engaged in
interstate commerce; (2) he was employed by the defendant with
duties advancing such commerce; (3) his injuries were sustained
while he was so employed; and (4) his injuries resulted from the
defendant's negligence. See Smith v. Med. & Surgical Clinic Ass'n,
118 F.3d 416, 419 (5th Cir. 1997). The third and fourth elements
are at issue in this action.
In a FELA case, the standard for establishing negligence
liability is relaxed. See Howard v. Canadian National/Illinois
Central
R.R.,
233
Fed.
Appx.
356,
3
357
(5th
Cir.
2007)
(“A
plaintiff’s burden of proof is a featherweight.”). The statute, in
its departure from traditional negligence principles, allows FELA
plaintiffs
to
recover
easier
than
traditional
negligence
plaintiffs. See McCormick v. New Orleans Pub. Belt R.R. Common,
2017 U.S. Dist. LEXIS 79299 *6 (2017). Railroads, under FELA, are
liable for an employee’s injuries no matter how small of a part
they played in the occurrence of the injury. See id. (stating that
the causal standard in FELA cases is “very low” when compared to
the traditional proximate cause standard).
When the non-moving party in a case is a FELA plaintiff, the
rules concerning summary judgment are different. See Kan. City S.
Ry. Co. v. Nichols Constr. Co., L.L.C., 574 F. Supp. 2d 590, 594
(E. D. La. 2008). Summary judgment can be survived by offering
evidence that would be insufficient in a conventional civil case.
See id. It cannot be survived by the offering of no evidence. See
id. A FELA plaintiff still must show some evidence that his
employer’s negligence played some part, even if only a slight part,
in causing his injury. See id. at 595; see also Rogers v. Missouri
Pac. R.R. Co., 352 U.S. 500, 506 (1957) (“Although the evidence
required to establish causation in a FELA action is less than that
required in an ordinary negligence action, the plaintiff must still
make some showing that a causal relationship existed.”). “The tried
and true showing of a ‘genuine issue of material fact’ is not
required of a FELA plaintiff seeking to survive summary judgment.”
4
Kan. City S. Ry. Co., 574 F. Supp. 2d at 596. A plaintiff’s FELA
claim should not be dismissed unless “there is a complete absence
of probative facts supporting the plaintiff’s position.” Rivera v.
Union Pac. R.R., 378 F.3d 502, 506 (5th Cir. 2004); see also Wooden
v. Missouri P. R. Co., 862 F.2d 560, 561 (5th Cir. 1989).
In the plaintiff’s efforts to support its position, expert
testimony is generally not needed. See Huffman, 675 F.3d at 419.
However, that “general rule gives way” when conclusions as to the
evidence cannot be reached based on the everyday experiences of
jurors. See id. In that situation, expert testimony is likely
necessary to evaluate the issue. See id. For example, expert
testimony is likely to be necessary in a FELA case involving a
railroad employee and osteoarthritis but not in a traditional
negligence case involving a car accident passenger and a broken
limb. See id. citing to Moody v. Maine C.R. Co., 823 F.2d 693,
695-96 (1st Cir. 1987); see also Zolna v. Conrail, 2005 U.S. Dist.
LEXIS 37084 (W. D. Pa. 2005) 2.
2 In this case, the court granted defendant’s summary judgment because plaintiff
failed to offer any expert testimony demonstrating causation of his injuries.
Specifically, the court stated that:
However, in respect to proving causation in the case sub judice,
the Plaintiff's personal knowledge does not extend beyond what
substances he came into contact with or inhaled. It has not been
presented that the Plaintiff is personally aware of the dosage of
various toxins he may have ingested. Beyond that, it has not been
presented that it is within the Plaintiff's personal knowledge as
to how such possible dosages resulted in the physical injuries he
has related in his Complaint. This is so because the Plaintiff is
not a medical doctor, toxicologist, epidemiologist or expert in the
subjects of measuring the dosage of toxins or the resulting effects
of specific dosages of toxins upon the human body. Such subjects
are beyond the knowledge of laymen who are not trained in and do
5
Expert testimony, specifically its admissibility, is governed
by Rule 702 of Federal Rules of Evidence. See Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993). To
be admitted, the expert’s testimony must be reliable, meaning that
it must be based on scientific methods, and must be relevant,
meaning that it must be able to be properly applied to the facts
at issue. See id.; Moore v. Ashland Chemical, Inc., 151 F.3d 269
(5th Cir. 1998).
Here, Plaintiff survives summary judgment because there is
not a complete absence of probative facts supporting his position
as his experts offer helpful testimony that should not be excluded.
Plaintiff brought his action under FELA, 45 U.S.C. § 51, to recover
for injuries that he alleges occurred as a result of his exposure
to Carbon Tetrachloride during work for Defendant. Because of the
complexity
occupational
involved
exposure
with
to
linking
his
Plaintiff’s
contraction
of
kidney
hazardous
cancer,
Plaintiff is required to offer expert testimony. Specifically,
Plaintiff must offer his testimony and expert testimony regarding
injury and causation elements. See Claar v. Burlington Northern R.
Co., 29 F.3d 499, 504 (9th Cir. 1994) (noting that summary judgment
is appropriate in the absence of expert testimony that is necessary
to prove an injury claimed under FELA).
not work in these fields of study. The need for expert testimony in
the case sub judice as to this information is clear.
6
Plaintiff’s experts, Dr. Rose and Dr. Saux, appear to be
experts with reliable and relevant information.
Dr. Rose is a
consulting industrial hygiene engineer with over 50 years of
experience in occupational safety and health. See Rec. Doc. 30-7
at 1. He states that he has “expert knowledge” of the diseases and
harmful
effects
caused
by
occupational
exposure
to
harmful
substances, including Carbon Tetrachloride. See id. at 2. He also
states that Defendant or its predecessor should have implemented
protective procedures, researched the hazards of working with
Carbon
Tetrachloride,
and
shared
such
information
with
it
employees. See id. Dr. Saux is an internal medicine physician, with
experience
with
Tetrachloride
kidney
cancer.
contributed
to
Dr.
Saux
states
Plaintiff’s
on
Plaintiff’s
statements,
and
Carbon
development of renal
cell carcinoma cancer. See Rec. Doc. 29-3 at 2-5.
conclusion
that
He
bases
his
“published data.” See
id. at 4. Further, separately filed rulings were made that denied
Defendant’s motion to exclude Plaintiff’s experts.
With these two as experts, Plaintiff clearly meets his low
standard. Without these two, clarity fades. It is unlikely that
Plaintiff
testimony,
testimony
will
co-worker
suffice
on
testimony,
their
own.
or
other
However,
layman
Plaintiff
disclosed four other medical providers to render expert testimony
at trial in its Rule 26 expert reports disclosure. See Rec. Doc.
18-5 at 2-3. If Dr. Rose and Dr. Saux are excluded, those four
7
experts remain and Plaintiff may still meet his low standard and
survive summary judgment. The disclosure is silent on exactly
what topics these experts would offer testimony on. If they can
speak reliably and relevantly to causation, Plaintiff may reach
the above noted low standard for surviving summary disposition in
this FELA action.
New Orleans, Louisiana, this 14th day of September, 2018.
___________________________________
SENIOR UNITED STATES DISTRICT JUDGE
8
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