St. George v. BNSF Railway Company

Filing 30

ORDER denying 8 Motion for Partial Summary Judgment (Written Opinion). Signed by Judge Susan Richard Nelson on 10/07/2014. (ILV)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Robert A. St. George,

Case No. 12-cv-2592 (SRN/FLN)

Plaintiff,
v.

MEMORANDUM OPINION
AND ORDER

BNSF Railway Company, a Delaware
Corporation,
Defendant.

Cortney S. LeNeave and Richard L. Carlson, Hunegs, LeNeave & Kvas, PA, 1000
Twelve Oaks Center Drive, Suite 101, Wayzata, MN 55391, for Plaintiff.
James F. Mewborn and Sally J. Ferguson, Arthur Chapman Kettering Smetak & Pikala,
PA, 81 South 9th Street, Suite 500, Minneapolis, MN 55402-3214; and Stephen M.
Warner, O'Neill & Murphy, 332 Minnesota Street, Suite W2600, St Paul, MN 55101, for
Defendant.

SUSAN RICHARD NELSON, United States District Judge
I.

INTRODUCTION
This matter is before the Court on Defendant’s Motion for Partial Summary

Judgment on Plaintiff’s Counts Two and Three [Doc. No. 8]. On March 5, 2014,
Defendant submitted a supporting memorandum [Doc. No. 10] and one affidavit with
several attached exhibits [Doc. No. 11]. On March 31, 2014, Plaintiff filed a Brief in
Opposition to Defendant’s Motion for Summary Judgment [Doc. No. 15], as well as an
affidavit with several attached exhibits [Doc. No. 16]. Defendant filed a reply brief [Doc.
No. 17], and an affidavit with attached exhibits [Doc. No. 18] on April 14, 2014. The

matter was heard on April 16, 2014. For the reasons set forth below, Defendant’s Partial
Motion for Summary Judgment is denied.
II.

BACKGROUND
A. The Parties and Plaintiff’s Claims
Plaintiff Robert A. St. George (“Plaintiff” or “St. George”) was employed by

Defendant BNSF Railway Company (“Defendant” or “BNSF”) from May 1973 until
November 2009. (Compl. ¶ 8 [Doc. No. 1]; Answer ¶ 8 [Doc. No. 2].) Defendant is a
corporation that served as an “interstate carrier engaged in interstate commerce through
several states.” (Answer ¶ 3 [Doc. No. 2].) While Plaintiff was employed by BNSF, he
worked as a switchman and brakeman primarily in Defendant’s Superior, Wisconsin
yard. (Compl. ¶¶ 1-3 [Doc. No. 1]; Affidavit of Richard L. Carlson (“Carlson Aff.”), Ex.
1 at 22-23 [Doc. No. 16].) St. George brought this lawsuit against BNSF in October
2012, pursuant to the Federal Employer’s Liability Act (“FELA”), 45 U.S.C. §§ 51-60,
and the Federal Safety Appliance Act (“FSAA”), 49 U.S.C. §§ 20301-20306. (Id. ¶¶ 1,
19.)
In his Complaint [Doc. No. 1], Plaintiff states three counts against BNSF: (1)
Plaintiff seeks damages under the FELA for injuries allegedly suffered during an incident
on October 13, 2009, while he worked as a switchman/trainman for Defendant (id. ¶¶ 16); (2) Plaintiff seeks damages under the FELA for musculoskeletal dysfunction and
impairment (MSD) allegedly caused by cumulative trauma associated with his
employment as a swtichman/trainman for Defendant (id. ¶¶ 7-17); and (3) Plaintiff also
seeks damages for cumulative injuries caused by FSAA violations under the FELA,
2

which he allegedly suffered as a result of improperly inspected and maintained hand
brakes, pinlifters, couplers, and other safety appliances (id. ¶ 19). Plaintiff’s Counts Two
and Three are challenged in Defendant’s Motion for Summary Judgment; therefore, the
Court focuses its attention solely on these Counts. (Def.’s Mot. for Summ. J. [Doc. No.
8].)
B. Plaintiff’s Health and Injuries
Plaintiff is 64 years old. (Carlson Aff., Ex. 1 at 9 [Doc. No. 16].) He served in the
U.S. Army from 1969 through 1971. (Id. at 11, 15, 19.) While in the Army, St. George
operated heavy equipment to clear jungle and build roads in Vietnam. (Id. at 15-16.)
Four years ago Plaintiff received partial disability status from the U.S. Department of
Veterans Affairs because they determined that exposure to Agent Orange in Vietnam
caused him to develop diabetes. (Id.)
After his time in the Army, Plaintiff worked several odd jobs until he was hired by
Defendant in February, 1973. (Id. at 19-21, 22.) Plaintiff worked for Defendant as a
switchman/brakeman until he retired on February 2, 2010. (Id. at 61-62.) He stopped
working because he had planned to retire at age 60, and because his shoulder pain
prohibited him from physically completing his work. (Id.)
Plaintiff admits that he began experiencing aches and pains in his shoulders in
2006. 1 (Carlson Aff., Ex. 1 at 68-70 [Doc. No. 16]; Mewborn Aff., Ex. E. [Doc. No. 11-

1

Plaintiff was also treated for various other injuries resulting from work related
incidents that are not at issue in this case. (Carlson Aff., Ex. 1 at 27-32 [Doc. No. 16].)
Notably, Plaintiff suffered a separate and unrelated neck injury while at work in 1989.
(Mewborn Aff., Ex. B, at 29-30 [Doc. No. 11].) The injury was a result of a television,
3

1].) In fact, Plaintiff stated his shoulder “problems” may have started up to ten years ago.
(Carlson Aff., Ex. 1 at 95-96 [Doc. No. 16].) St. George characterized these “problems”
as primarily “aches.” (Id.; Mewborn Aff., Ex. I at 5 [Doc. No. 18-1].) To relieve the
pain, St. George took “ibuprofen” on a daily basis, and felt “fine” after taking the
medication. (Carlson Aff., Ex. 1 at 69 [Doc. No. 16].) According to Plaintiff’s “BNSF
Railway Company, Employee Monthly Earnings History,” St. George’s earnings
remained consistent from 2005 to 2009. (Carlson Aff., Ex. 6 [Doc. No. 16].) Plaintiff
contends that these earnings statements “show that any shoulder symptoms did not
adversely affect his ability to work as switchman/brakeman” during that time period.
(Pl.’s Brief in Opp’n at 13 [Doc. No. 15].)
St. George’s shoulder pain “started really getting bad…the last few months”
before he retired. (Carlson Aff., Ex. 1 at 68-70, 77 [Doc. No. 16].) He explains that
initially he experienced stiffness and soreness, which radiated from his neck to his
shoulders. (Carlson Aff., Ex. 1 at 140 [Doc. No. 16].) However, the pain progressed,
and eventually it spread to the joints toward the outside of his shoulder. (Id.) The pain
made it difficult for St. George to lift his arms overhead or complete any activity that

which was used for remote control monitoring, hitting the back of his head while he was
exiting a bathroom at work. (Carlson Aff., Ex. 1 at 29-30 [Doc. No. 16]; Carlson Aff.,
Ex. 7 at 4 [Doc. No. 16].) Although Plaintiff continues to have a stiff neck and pains that
run down his neck and shoulders, this pain is distinct and separate from the cumulative
injury he alleges in Count Two. (Carlson Aff., Ex. 1 at 67, 139-40 [Doc. No. 16].) The
treatment he received for this injury is documented in the January 15, 1992 medical
records of Dr. Robert J. Torgrimson. (Carlson Aff. Ex. 3 at 1-3 [Doc. No. 16].)

4

required him to lift his arms overhead. (Id.) In fact, Plaintiff contends that during the last
few months of 2009, “[he] couldn’t do [his] job anymore.” (Id. at 68-70.)
Dr. Janus D. Butcher is currently Plaintiff’s treating physician for his cumulative
shoulder injury. 2 (Carlson Aff., Ex. 1 at 110 [Doc. No. 16].) St. George first visited Dr.
Butcher for his shoulder pain on December 8, 2009. (Mewborn Aff., Ex. D [Doc. No.
11].) During that doctor’s appointment, Plaintiff informed Dr. Butcher that this was the
first time that his shoulder pain inhibited him from completing his work. (Id. at 1-2.)
Upon completing a physical examination and reviewing x-rays, Dr. Butcher concluded
that St. George suffered from “[r]otator cuff impingement with spur.” (Id. at 2.)
Plaintiff completed an Employee Personal Injury/Occupational Illness Report on
December 3, 2009 because “[he] was having a hard time doing [his] job and [he] had a lot
of pain in [his] shoulders,” which radiated down from his neck. (Carlson Aff., Ex. 1 at
66-67 [Doc. No. 16]; Mewborn Aff., Ex. E [Doc. No. 11].) In the statement, Plaintiff
alleged that this injury was a result of “36 years of riding boxcars with slack action, hard
to throw switches, handbrakes, hard to hang air hoses, heavy pinlifters.” (Mewborn Aff.,
Ex. E [Doc. No. 11].) As a result of completing this report, Plaintiff was interviewed
about his injuries by BNSF’s claim representative, Jeff Johnson. (Mewborn Aff., Ex. B
at 11 [Doc. No. 11].) During the interview Plaintiff explained that “[he] knew [the
injury] was related to work” based on the timing of the pain intensity. (Id. at 39.)
2

Dr. Butcher is also Plaintiff’s treating physician for an Achilles tendon injury that
St. George allegedly suffered on October 13, 2009. (Carlson Aff., Ex. 5 [Doc. No. 16].)
This leg injury is the basis for Plaintiff’s claim in Count One of his Complaint. (See
Compl. ¶¶ 1-6 [Doc. No. 1].) Since Defendant’s Motion to Dismiss is focused on
Plaintiff’s Counts Two and Three, the Court does not address the Achilles tendon injury.
5

Plaintiff alleges that during this interview Johnson informed Plaintiff that he had three
years from the date of filing an injury report to pursue a legal claim against BNSF.
(Carlson Aff., Ex. 1 at 141-42 [Doc. No. 16].)
C. Count Two: Federal Employers’ Liability Act, 45 U.S.C. §§ 51-60
Pursuant to the FELA, Defendant, a common carrier by railroad, has a duty to take
reasonable care to provide a safe workplace and safe equipment. See 45 U.S.C. § 51.
Liability attaches if BNSF fails to provide reasonably safe equipment or a reasonably safe
workplace. Id.
In Count Two of Plaintiff’s Complaint, St. George alleges that his permanent
cumulative shoulder injury, described in detail above, is a result of Defendant’s failure to
provide a safe workplace or safe equipment, which is required the FELA. (See Compl.
¶¶ 7-17 [Doc. No. 1].) Specifically, St. George alleges that his injury was caused by
moving on and off equipment, as well as operating switches, hand brakes, pinlifters,
couplers, and other equipment that Plaintiff claims was unsafe and defective and
improperly maintained by Defendant. (Mewborn Aff., Ex. A at 1-2, 3-4 [Doc. No. 11-1];
Carlson Aff., Ex. 2 at 4 [Doc. No. 16].)
D.

Count Three: Federal Safety Appliance Act, 49 U.S.C. §§ 2030120306

The FSAA requires that a railroad equip its railcar with specific properly working
appliances, including an efficient brake system, couplers, and handbrakes. See 49 U.S.C.
§§ 20301-20306. The FSAA’s definition of “couplers” includes pinlifters, when there is
evidence that the pinlifter operated abnormally and prevented the cars from uncoupling.
6

Phillips v. Cheapeake & Ohio Ry. Co., 475 F.2d 22, 25 (4th Cir. 1973). Similarly, the
FSAA’s definition of “brake system” encompasses air hoses used for air brakes.
McGowan v. Wisconsin Cent. Ltd., No. 04-C-0170, 2005 WL 2077355, at *4 (E.D. Wis.
Aug. 26, 2005); Orchelle v. CSX Transportation, Inc., 574 So.2d 749 (Ala.1990)
(applying the FSAA where a railroad switchman injured himself attempting to connect air
hoses for air brakes on rail cars that were at a standstill).
Plaintiff alleges that in violation of the FSAA, Defendant hauled or permitted to be
hauled, or used on its line of railway, railcars equipped with unsafe and defective hand
brakes, pinlifters, and couplers that were inefficient insofar as they were hard to operate,
thereby causing Plaintiff’s injuries. (Mewborn Aff., Ex. A at 1-2, 3-4 [Doc. No. 11-1];
Pl.’s Brief in Opp’n at 31 [Doc. No. 15].) Although the FSAA does not provide a private
cause of action for violations of the statute, an employee may recover for injuries caused
by FSAA violations under the FELA. See Crane v. Cedar Rapids & Iowa City Ry. Co.,
395 U.S. 164, 166 (1969).
Plaintiff admits that he cannot recall “any specific car numbers” or specific pieces
of equipment that were defective. (Carlson Aff., Ex. 1 at 103-04 [Doc. No. 16].)
Nonetheless, in Plaintiff’s Answers to Defendant’s Interrogatories Set II, St. George
contends that “[w]hile [he] did not keep records as to specific car numbers or dates or
times when [he] had to work with railcars equipped with handbrakes with short release
handles, [he] did report those cars to the trainmasters on duty.” (Carlson Aff., Ex. 2 at 23 [Doc. No. 16].) He would also report defective railcar couplers to the yardmaster and
carman on duty. (Id. at 4.) Similarly, St. George narrowed down which rail cars had
7

defective air hoses. He stated that the cars which had misaligned air hoses were “the
ADM cars with the UELX numbers, Allrail older coal cars and what they call
battleships.” (Id.) He also “always reported those cars at the safety meetings with
Defendant and was told that as the cars came in for repair, those hoses would be replaced
with newer, soft hoses.” (Id.) Plaintiff testified during his deposition that frequently
handbrakes and pinlifters did not work as intended. (Carlson Aff., Ex. 1 at 72-73, 78
[Doc. No. 16].) In fact, St. George was able to narrow down which rail cars had
defective pinlifters. He alleged that “[p]aper box cars with cushioned underframes and
three bars on the pinlifters [sic]” had the defective pinlifters attached. (Carlson Aff., Ex.
2 at 3 [Doc. No. 16].) Plaintiff would also report those cars to the trainmasters on duty.
(Id.) In his response to BNSF’s interrogatories, Plaintiff implied that “Defendant’s
records” contain information about specific car numbers that had defective equipment.
(See id. at 2-4.)
III.

DISCUSSION

Summary judgment is proper if, drawing all reasonable inferences in favor of the
non-moving party, there is no genuine issue as to any material fact and the moving party
is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett,
477 U.S. 317, 322–23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–50
(1986). “Summary judgment procedure is properly regarded not as a disfavored
procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which
are designed ‘to secure the just, speedy, and inexpensive determination of every action.’”
Celotex Corp., 477 U.S. at 327 (quoting Fed. R. Civ. P. 1).
8

The party moving for summary judgment bears the burden of showing that the
material facts in the case are undisputed. Id. at 323. However, “a party opposing a
properly supported motion for summary judgment may not rest upon mere allegation or
denials of his pleading, but must set forth specific facts showing that there is a genuine
issue for trial.” Anderson, 477 U.S. at 256. “Only disputes over facts that might affect
the outcome of the suit under the governing law will properly preclude the entry of
summary judgment. Factual disputes that are irrelevant or unnecessary will not be
counted.” Id. at 248.
Moreover, summary judgment is properly entered “against a party who fails to
make a showing sufficient to establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at trial.” Celotex Corp., 477
U.S. at 322. Defendant seeks summary judgment on Plaintiff’s Counts Two and Three.
A. Count II: FELA and Statute of Limitations
As discussed above, in Count Two of his Complaint, Plaintiff asserts claims based
on the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. §§ 51-60. Under the
FELA:
[e]very common carrier by railroad while engaging in commerce…shall be
liable in damages to any person suffering injury while he is employed by
such carrier in such commerce…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, roadbed,
works, boats, wharves, or other equipment.
45 U.S.C. § 51. Therefore, Defendant, a common carrier by railroad, is liable if it
negligently fails to provide reasonably safe equipment or a reasonably safe workplace.
9

Id.; see Bailey v. Central Vermont Ry., Inc., 319 U.S. 350, 352-53 (1943) (holding that
under the FELA, an employer has a duty to provide a reasonably safe place to work);
Vidlak v. Burlington Northern Railroad, 16 F.3d 1229 (8th Cir. 1993) (explaining that
“[t]o establish [the defendant’s] negligence, [the plaintiff] must show [the defendant]
breached its duty to provide [the plaintiff] with a reasonably safe workplace”). The
United States Court of Appeals for the Eighth Circuit explained in Fletcher v. Union
Pacific Railroad Co. that “[a]n employee’s claim under the FELA does not depend on
showing that the injury was caused by a particular negligent act, but may be caused by
the cumulative effect of a series of incidents, or due to the employee’s weakened
condition.” 621 F.2d 902, 909 (8th Cir. 1980) (internal citations omitted).
Defendant argues that summary judgment is appropriate for Plaintiff’s Count Two
FELA claims because FELA’s three-year statute of limitations bars relief. (Def.’s Mem.
of Law at 6-9 [Doc. No. 10].) Pursuant to the FELA, “[n]o action shall be
maintained…unless commenced within three years from the day the cause of action
accrued.” 45 U.S.C. § 56. However, “[a] railroad is equitably estopped from asserting
the statute of limitations as a defense if misrepresentations by either it or its agent caused
the employee’s failure to bring his action within the three-year period.” Fletcher, 651
F.2d at 906 (citation omitted).
Plaintiff asserts two arguments in response to Defendant’s claim. First, St. George
contends that whether he should have known that his cumulative injury was caused by
work is a question of fact for a jury, not the Court. (Pl.’s Brief in Opp’n at 2 [Doc. No.
15].) Second, Plaintiff alleges that BNSF is equitably estopped from asserting the statute
10

of limitations as a defense because St. George relied on Defendant’s claim representative
who told Plaintiff he had three years in which to bring a legal claim from the time he filed
a personal injury report. (Id.)
St. George filed this lawsuit on October 11, 2012. Therefore, in order for
Defendant to prevail on its motion, BNSF must demonstrate that Plaintiff knew or should
have known that his cumulative shoulder injuries were caused by his work before
October 11, 2009.
1. Date Plaintiff’s Injury “Accrued”
The parties disagree as to when Plaintiff’s injury or cause of action “accrued.”
Since Plaintiff alleges a cumulative shoulder injury caused by years of employment at
BNSF, the date at which Plaintiff’s shoulder aches became a cognizable injury is a factsensitive inquiry.
The United States Supreme Court first articulated the “discovery rule,” or the
point in time a cumulative injury accrues under the FELA, in Urie v. Thompson. The
Court held that a cumulative injury claim accrues when a reasonable person knows or
should know of both the symptoms of his injury, and the potential cause of his injury.
See Urie v. Thompson, 337 U.S. 163, 169-71 (1949). In Urie, the plaintiff contracted a
pulmonary disease that was “caused by continuous inhalation of silica dust” from
working on the railroad from 1910-1940. Id. at 169. The disease debilitated plaintiff and
eventually forced him to cease work in 1940. Id. at 166. The defendant contended that
the “[the plaintiff’s] ‘cause of action’ must be deemed to have ‘accrued’ longer than three
years before the institution of this action” since the plaintiff likely contracted the disease
11

much earlier in his career. Id. at 169. The Supreme Court disagreed. The Court
explained that if it adopted the defendant’s perspective then that “would mean that at
some past moment in time, unknown and inherently unknowable even in retrospect, [the
plaintiff] was charged with knowledge of the slow and tragic disintegration of his lungs.”
Id. Instead, the Supreme Court held that “the afflicted employee can be held to be
‘injured’ only when the accumulated effects of the deleterious substance manifest
themselves.” Id. at 170 (internal quotations and citation omitted). As applied to Urie, the
Court explained that the plaintiff’s injury did not accrue until “[he] became too ill to
work” and received a diagnosis for his condition. Id. at 169.
The Eighth Circuit applied the Urie standard in Fletcher v. Union Pacific Railroad
Co., 621 F.2d 902 (8th Cir. 1980). In that case, the plaintiff suffered from “lumbar disc
syndrome” as a result of a work-related incident in 1962. Id. at 907. The Eighth Circuit
stated that “with industrial diseases, where the symptoms are not immediately
manifested, the cause of action does not accrue until the employee is aware or should be
aware of his condition.” Id. at 906 (citing Urie, 337 U.S. 163). The court explained that
the plaintiff’s cause of action did not accrue until one of two conditions was met.
Fletcher either needed to (1) receive a diagnosis, id. at 907, or (2) his chronic back pain
must have “bothered him constantly,” id. at 910, n. 7. The plaintiff was diagnosed with
“lumbar disc syndrome” several years prior to filing his lawsuit, and he had received
“extensive hospitalization and treatment” immediately after the 1962 incident, even
before he was diagnosed. Id. at 904. Therefore, the Eighth Circuit concluded that the

12

plaintiff’s cause of action was barred by the FELA’s three year statute of limitations. Id.
at 907.
One year before the Eighth Circuit decided Fletcher, the Supreme Court issued its
opinion in United States v. Kubrick, 444 U.S. 111 (1979). While the Fletcher Court did
not cite Kubrick, several Courts of Appeals have interpreted Kubrick as refining the
“discovery rule” announced in Urie. See, e.g., Fries v. Chicago & Northwestern
Transportation Co., 909 F.2d 1092, 1095-96 (7th Cir. 1990) (reading Urie and Kubrick as
cases elaborating on the same “accrual” standard); Kichline v. Consolidated Rail Corp.,
800 F.2d 536 (3d Cir. 1986) (same); Dubose v. Kansas City Southern Railway Co., 729
F.2d 1026, 1030 (5th Cir. 1984) (finding that “Urie signaled the inception of the
discovery rule and Kubrick merely restated the rule while defining its outer limits”). In
Kubrick, the plaintiff brought an action under the Federal Tort Claims Act (“FTCA”) to
recover for a hearing loss allegedly caused by medical malpractice in a Veterans
Administration hospital. Kubrick, 444 U.S. at 111. The Supreme Court held that an
FTCA injury accrues once a plaintiff is aware he has an injury and is aware of the cause
of that injury. Id. at 122-23. Moreover, the Court emphasized that the plaintiff must act
diligently to investigate his injury and any suspect cause. Id. at 123.
The Eighth Circuit has not yet ruled on whether Urie and Kubrick are distinct tests
for defining “accrual” under different federal laws, or whether they should be read
together. 3 Nonetheless, in this case, the parties agree that a FELA cause of action for an

3

Eighth Circuit case law on this subject has not changed since a federal district
court in this Circuit noted a similar lack of precedent in Courtney v. Union Pacific
13

occupational disease begins to run when the plaintiff knows or reasonably should know
of the existence and cause of his injury. (Def.’s Mem. of Law at 5 [Doc. No. 10]; Pl.’s
Brief in Opp’n at 18 [Doc. No. 15].) They also agree that a plaintiff must exercise
reasonable diligence to determine the cause of his injury. (Def.’s Mem. of Law at 8
[Doc. No. 10]; Pl.’s Brief in Opp’n at 18 [Doc. No. 15].) Therefore, the Court reads Urie
and Kubrick in tandem. Moreover, as a district court in this Circuit explained:
even if Kubrick were read so narrowly as to only apply to medical
malpractice cases brought under [the] FTCA, the court’s unwillingness in
Urie to bar a plaintiff’s claim because of “blameless ignorance” regarding
the circumstances of his injury, may also be read to implicitly require a
plaintiff to understand or have reason to know of the fact of his injury and
its cause. It would be impossible to even choose a defendant, let alone
commence an action, without having knowledge of both.
Courtney v. Union Pacific Railroad Co., et al., 713 F. Supp. 305, 308 (E.D. Ark. 1989).
Thus, as applied to this case, to prevail on its Motion for Partial Summary Judgment,
Defendant must demonstrate that Plaintiff (1) knew of his injury, and (2) knew of the
cause of his injury, before October 11, 2009.
Here, the parties differ as to when Plaintiff knew that he sustained a cognizable
work injury. BNSF argues that Plaintiff “knew of his shoulder conditions,” and knew
that his “shoulder conditions were causally related to his railroad employment,” more
than three years prior to the commencement of this action. (Def.’s Mem. of Law at 5, 8
[Doc. No. 10].) Defendant contends that under the FELA, St. George “does not have to
experience all of the symptoms of the injury” and “[a] medical diagnosis is not a
Railroad Co., et al.. 713 F. Supp. 305, 308 (E.D. Ark. 1989) (discussing whether Urie and
Kubrick should be read together and stating that “[t]o date no cases within the Eighth
Circuit have ruled on this precise point”).
14

prerequisite to the commencement of the limitations period.” (Id. at 6.) Furthermore,
Defendant alleges that “Plaintiff has an affirmative duty to investigate both the potential
problem and the potential cause of an injury.” (Id.)
In opposition, Plaintiff responds that summary judgment is improper because
whether he should have known that he suffered a work-related injury before October 11,
2009 is a fact question, which is appropriate for a jury. (Pl.’s Brief in Opp’n at 20 [Doc.
No. 15].) Plaintiff points to Defendant’s own medical expert, Dr. Brian Konowalchuk,
who examined Plaintiff and determined that St. George’s cumulative trauma was due to
the aging process, and was not work related. (Id. at 21; Carlson Aff., Ex. 7 at 19 [Doc.
No. 16].) Citing additional authority from Courts of Appeals and state courts, Plaintiff
also argued that his symptoms were transient and intermittent, and therefore he was not
aware he had an injury until the pain prevented him from working in October, 2009. (Id.
at 23-26.)
The Urie “discovery rule” requires an objective inquiry into whether the plaintiff
knew or, in the exercise of reasonable diligence, should have known of the critical facts
of his injury and the cause of the injury. 4 See Urie, 337 U.S. 163 (1949). The Court
finds that the evidence, read in a light most favorable to St. George, creates a genuine
4

Both parties cite additional authority from state courts and other Circuit Courts of
Appeals to bolster their arguments. Defendant relies primarily upon Fries v. Chicago &
Northwestern Transportation Co., 909 F.2d 1092 (7th Cir. 1990). (See Def.’s Mot. for
Summ. J. at 6-10 [Doc. No. 10].) While Plaintiff relies heavily upon Nichols v.
Burlington Northern & Santa Fe Ry. Co., 56 P.3d 106 (Colo. Ct. App. 2002), Green v.
CSX Transportation, Inc., 414 F.3d 758 (7th Cir. 2005), and Kennedy v. BNSF Ry.
Corp., 227 P.3d 1120 (Okla. Civ. App. 2009). (See Pl.’s Brief in Opp’n at 22-25 [Doc.
No. 15].) The Court’s analysis, however, relies upon controlling Supreme Court and
Eighth Circuit precedent as it is sufficiently instructive for this fact-based inquiry.
15

issue of material fact as to when Plaintiff knew or should have known not only that he
had suffered this cumulative shoulder injury, but also whether the injury was caused by
his work at the railroad. While St. George’s shoulder pain may have begun as early as
1999 (Mewborn Aff., Ex. B at 38-39; Mewborn Aff., Ex. C at 97; Mewborn Aff., Ex. D
[Doc. No. 11-1]), the pain did not prevent him from working until the last few months
before he retired in December 2009 (Carlson Aff., Ex. 1 at 68-70 [Doc. No. 16]). In fact,
for years Plaintiff took ibuprofen and felt “fine.” (Carlson Aff., Ex. 1 at 69 [Doc. No.
16].) In other words, the symptoms did not “obtrud[e] on his consciousness” until his
pain prevented him from working. See Urie, 337 U.S. at 169.
Not only was Plaintiff’s pain not severe until 2009, but also St. George did not
receive a diagnosis for his shoulder pain until he saw Dr. Butcher on December 8, 2009.
(Mewborn Aff., Ex. D at 1-2 [Doc. No. 11-1] (diagnosing Plaintiff with “[r]otator cuff
impingement with spur”).) Defendant correctly states that “[a] medical diagnosis is not a
prerequisite to the commencement of the limitations period.” (Def.’s Mem. of Law at 6
[Doc. No. 10].) Nonetheless, Plaintiff may not have been aware that his shoulder aches
and pains were the result of a diagnosable injury, as opposed to general soreness due to
his work position and age. (See Carlson Aff., Ex. 7 at 19 [Doc. No. 16].) Even
Defendant’s own medical expert concluded that Plaintiff’s shoulder inflammation
“frequently occur[s] as part of the aging process” for men and women in their 40’s, 50’s,
and 60’s, and is not work related. (Id.) And unlike the plaintiff in Fletcher, St. George
did not receive “extensive hospitalization and treatment” for his shoulder aches before
December 2009. See Fletcher, 621 F.2d at 910 n.7.
16

The Court’s purpose in reciting these alleged facts is not to evaluate the merits of
the cumulative injury claim at this juncture. Instead, these facts demonstrate that a
question of when Plaintiff’s “aches” became a cognizable cause of action remains a
genuine issue of material fact in this case. Other Courts of Appeals have held that “de
minimis aches and pains are not considered to be an injury for the purposes of the FELA
statute of limitations.” Granfield v. CSX Transportation, Inc., 597 F.3d 474, 483 (1st Cir.
2010) (citing Green v. CSX Transportation, Inc., 414 F.3d 785 (7th Cir. 2005)).
Construing the record in favor of St. George, his shoulder pain before December, 2009
may not have put a reasonable person on notice that he suffered a cognizable injury. The
Court finds that a genuine issue of material fact exists as to when Plaintiff knew or should
have known that his shoulder aches were no longer de minimis. The Court cannot say, as
a matter of law, that St. George should have been able to diagnose himself before he
visited Dr. Butcher and submitted an Employee Personal Injury/Occupational Illness
Report in December, 2009. (See Carlson Aff., Ex. 1 at 66-67 [Doc. No. 16]; Mewborn
Aff., Ex. E [Doc. No. 11].) And as the Supreme Court explained in Bailey v. Central
Vermont Ry., Inc., “[t]o deprive [railroad] workers of the benefit of a jury trial in close or
doubtful cases is to take away a goodly portion of the relief which Congress has afforded
them.” 319 U.S. 350, 354 (1943). Because Plaintiff’s knowledge about the severity and
cause of his shoulder injury before October 11, 2009 is a genuine issue of material fact
that remains in dispute, the Court finds that summary judgment as to Count Two is
denied.

17

2. Estoppel and Statute of Limitations
In response to BNSF’s Motion for Summary Judgment, Plaintiff alleges not only
that a fact question remains as to when Plaintiff knew that he suffered a job-related
injury, but also that a fact question exists as to whether BNSF’s claim representative’s
discussion with Plaintiff tolled the statute of limitations. (Pl.’s Brief in Opp’n at 27 [Doc.
No. 15].)
Under the FELA, “[a] railroad is equitably estopped from asserting the statute of
limitations as a defense if misrepresentations by either it or its agents caused the
employee’s failure to bring his action within the three-year period.” Fletcher, 621 F.2d at
906 (internal citation omitted). The Supreme Court applied this principle in Glus v.
Brooklyn Eastern District Terminal, 359 U.S. 231, 232 (1959). In Glus, the petitioner
alleged that a railroad representative misled him by informing him that he could begin his
action within seven years after it accrued. 359 U.S. at 231. The Court stated that “[t]o
decide the case we need look no further than the maxim that no man may take advantage
of his own wrong.” Id. at 232. Thus, the Court held that the petitioner was entitled to
have his case tried on the merits if he could prove his allegation that the defendant’s
agents justifiably misled him about the statute of limitations. Id. at 235. In fact,
according to the Eighth Circuit, “[t]he railroad is equitably estopped even if the
misrepresentations upon which the employee relied were unintentional.” Fletcher, 621
F.2d at 906 (internal citation omitted). However, in order for the doctrine of estoppel to
apply an employee must (1) genuinely rely on these misrepresentations, and (2) the
reliance must be justifiable. Id. at 906-07; Glus, 359 U.S. at 235.
18

Here, Plaintiff alleges that Jeff Johnson, a BNSF claim representative, informed
St. George that he had three years from the date he reported his injury, on December 3,
2009, to file a claim. (Carlson Aff., Ex. 1 at 141-142 [Doc. No. 16].) Plaintiff further
alleges that he relied on that information when deciding when to file this lawsuit. (Id.)
Therefore, St. George contends that “there is a fact question with respect to whether
Defendant is equitably estopped from asserting a statute of limitations defense.” (Pl.’s
Brief in Opp’n at 30 [Doc. No. 15].) Defendant replies to Plaintiff’s argument by
asserting that “by the time of the alleged misrepresentations – between October and
December 2009 – Plaintiff’s limitations period had already expired.” (Def.’s Reply at 7
[Doc. No. 17].) Therefore, BNSF argues that Johnson’s alleged statements to Plaintiff
are inapposite. (Id.)
The Court finds that fact questions remain pertaining to whether Defendant is
estopped from asserting the statute of limitations as a defense. First, as the Glus and
Fletcher Courts articulated, whether Johnson made the alleged statement to Plaintiff and
whether St. George justifiably relied on this statement are questions of fact suitable for a
jury. See Glus, 359 U.S. at 235 (holding that whether or not petitioner justifiably relied
on respondent’s representations was a question of fact that could not “be decided at this
stage of the proceedings”); Fletcher, 621 F.2d at 906-07. Second, as the Court explained
above, precisely when Plaintiff discovered he had a work related injury remains a
question of fact. If the jury determines that Plaintiff’s injury accrued sometime between
December 14, 2006 and December 3, 2009, then BNSF would be estopped from asserting
the statute of limitations as a defense. On the other hand, if the jury determines that
19

Plaintiff’s injury accrued before December 14, 2006, then Defendant correctly notes that
Johnson’s alleged statements are immaterial. Since this determination hinges on when
Plaintiff’s injury accrued, it is premature for the Court to conclude whether or not it is
inapposite that Johnson made these alleged misrepresentations.
B. Count III: FSAA and Identifying Specific Equipment
In Count III of his Complaint, Plaintiff asserts a claim under the FSAA. As noted
above, the FSAA does not by its own terms “confer a right of action on injured parties.”
Grogg v. Missouri Pacific Railroad Co., 841 F.2d 210, 212 (8th Cir. 1988) (citing Urie,
337 U.S. at 188). Rather, “the [FSAA] provide[s] the basis for the claim, and the FELA
provides the remedy.” Grogg, 841 F.2d at 212. In relevant part, pursuant to the FSAA, a
railroad carrier must only use a vehicle equipped with “couplers coupling automatically
by impact, and capable of being uncoupled, without the necessity of individuals going
between the ends of the vehicles” and “secure sill steps and efficient hand brakes.” 49
U.S.C. § 20302.
Plaintiff alleges that in violation of this Act, Defendant’s railcars were “equipped
with defective handbrakes and coupling mechanisms (i.e., pin lifters, knuckles and draw
bars).” (Pl.’s Brief in Opp’n at 31 [Doc. No. 15].) Defendant argues that Plaintiff fails to
state a claim under the FSAA because he “cannot identify any specific items or
equipment that were defective, nor can he identify any specific defects.” (Def.’s Mem. of
Law at 14 [Doc. No. 10].)

20

1. Prima Facie Case under the FSAA
As a general rule, when analyzing a plaintiff’s FSAA claim, a court must construe
the Act liberally. In Lilly v. Grand Trunk Western Railroad Co., the Supreme Court
stated the FSAA should “be liberally construed in the light of its prime purpose, the
protection of employees and others by requiring the use of safe equipment.” 317 U.S.
481, 486 (1943). Similarly, in Urie, the Court explained that just like the FELA, the
FSAA and the Locomotive Inspection Act, another railroad safety statute, should be read
liberally in order to not restrict an injured employee’s recovery. 337 U.S. at 189. To
recover for a violation of the FSAA, St. George must show “(1) the statute was violated;
and (2) the violation was a causative factor contributing in whole or in part to the
accident that caused [his] injuries.” Grogg, 841 F.2d at 212 (internal citation omitted).
An injured employee is “required to prove only the statutory violation and thus is relieved
of the burden of proving negligence.” Crane v. Cedar Rapids & Iowa City Railway Co.,
395 U.S. 164, 166 (1969) (explaining the level of proof required under the FSAA).
In order to demonstrate that the statute was violated, St. George may prove
evidence of an inefficiency through “some particular defect,” or by showing that an
appliance “fail[ed] to function, when operated with due care, in the normal, nature and
usual manner.” Myers v. Reading Co., 331 U.S. 477, 483 (1947). In Myers v. Reading
Co., the United States Supreme Court clarified that “[p]roof of an actual break or visible
defect […] is not a prerequisite to a finding that the statute has been violated.” Id. The
Court explained that “[t]he test in fact is the performance of the appliance.” Id.

21

Suggesting that, as long as “there is proof that the mechanism failed to work efficiently
and properly,” a plaintiff will have sufficient proof that the FSAA was violated. Id.
Although the Court must construe the FSAA liberally, the Supreme Court’s and
Eighth Circuit’s tests for determining liability under the FSAA clearly presuppose that a
plaintiff is able to identify which piece of equipment is allegedly inefficient. In Coleman
v. Burlington Northern, Inc., the Eighth Circuit clarified a plaintiff’s burden of proof by
stating that “if [an appliance] fails to operate properly and injury thereby results, liability
is imposed no matter what the railroad may have done to insure its proper operation.”
681 F.2d 542, 544 (8th Cir.1982). The court’s test assumed that the plaintiff could
identify the inefficient appliance being challenged. See also Grogg, 841 F.2d at 212
(holding that to prove train equipment violated the FSAA, the plaintiff could show
evidence of either “some particular defect,” or “a failure to function, when operated with
due care, in the normal, natural, and usual manner”) (cited by Burlington Northern R.R.
Co. v. Farmers Union Oil Co. of Roll, 207 F.3d 526, 532 (8th Cir. 2000)). Thus, while
the “plaintiff need not identify a specific defect,” he must still identify a specific piece of
equipment covered by the FSAA which he alleges is defective. See Myers, 331 U.S. at
483; see Chicago, St. P., M. & O. Ry. Co. v. Muldowney, 130 F.2d 971, 975 (8th Cir.
1942) (finding that “[t]he test of compliance [under the FSAA] is the operating efficiency
of the [safety device] with which the car is equipped”).
As to the causation element of a plaintiff’s FSAA claim, a plaintiff is “entitled to
recover if this defective equipment was the sole or a contributory proximate cause” of the
injury. Coray v. Southern Pacific Co., 335 U.S. 520, 522-23 (1949); see Crane, 395 U.S.
22

at 166 (holding that under the FSAA a plaintiff “is not required to prove common-law
proximate causation but only that his injury resulted ‘in whole or in part’ from the
railroad's violation of the Act”). Furthermore, pursuant to the SAA, the defendant
railroad “is deprived of the defenses of contributory negligence and assumption of risk.”
Crane, 395 U.S. at 166.
Plaintiffs alleging cumulative trauma injuries are held to the same standard. In
Tezak v. BNSF Railway Co., the Washington district court relied in part on the Eighth
Circuit’s Muldowney case and held that although the plaintiff’s FSAA claim was based
on a cumulative trauma injury, he still had to allege a specific defect with a specific piece
of equipment in order to survive summary judgment. No. C09-05212BHS, 2010 WL
3211693, at *2 (W.D. Wash. Aug. 12, 2010) (citing Muldowney, 130 F.2d at 975). The
court explained that if the plaintiff was “unable or unwilling to identify the particular
devices operating on particular in-use rail cars, then [the defendant] has no reasonable
way to defend itself against such an allegation, other than a simple denial.” Id. The court
granted the defendant’s motion for summary judgment because the plaintiff merely
alleged that he “encountered” rail cars that violated the FSAA, and he provided no
particularity about which cars were problematic or what equipment on the cars was
defective. Id. at *1-2.
The Minnesota Court of Appeals reached a similar outcome in O’Neill v. BNSF
Railway Co., No. A10-1987, 2011 WL 4008276 (Minn. Ct. App. Sept. 12, 2011). In
O’Neill, the plaintiff also alleged a cumulative trauma claim under the FSAA. Id. at *1.
The plaintiff “admitted that he was unable to identify any specific piece of defective
23

railroad equipment or identify any particular instance when he used a defective appliance
or when a railroad component failed to perform.” Id. at *4. As a result, the Minnesota
Court of Appeals affirmed the lower court’s directed verdict and held that the plaintiff’s
“failure to identify any specific defective device prevented [the defendant] from
defending itself by proving that the device was working properly.” Id. at *5. By not
alleging a specific defective device, the plaintiff “deprived the jury of a fact issue as to
whether [the defendant] violated the FSAA.” Id. Thus, a plaintiff claiming a cumulative
injury must also identify specific equipment that allegedly caused his injury.
2. Identifying the Specific Equipment
When identifying the piece of equipment that allegedly caused the injury, the
plaintiff need not always be precise. For instance, in Strickland v. Norfolk Southern
Railway Co., the Eleventh Circuit held that Strickland’s FSAA claim survived summary
judgment even though he could not precisely identify the rail car that caused his injury.
692 F.3d 1151, 1158 (11th Cir. 2012). The plaintiff alleged that on July 23, 2009, he
suffered a shoulder injury from a faulty handbrake. Id. at 1155. Although he was unable
to identify the particular rail car on which he was injured, he knew it was a “tank car,”
and he “contended that it was possible for Norfolk Southern, by reference to a Switch
List, to narrow down the possible number of rail cars that could have been involved.” Id.
at 1155 n. 5. The court distinguished Strickland’s case from O’Neill by explaining that
(1) the procedural posture of the cases differed, and (2) the substance of the plaintiffs’
claims differed. Id.

24

As to the procedural posture, the Eleventh Circuit aptly noted that although the
O’Neill Court affirmed the district court’s grant of a directed verdict on the plaintiff’s
FSAA claim, his claim had survived summary judgment. Id. (citing O’Neill, 2011 WL
4008276, at *3). It was only once all evidence was presented to the jury that the O’Neill
Court determined that the plaintiff had failed to adequately identify any specific defective
devices, and held that it was proper to grant the defendant’s motion for a directed verdict.
O’Neill, 2011 WL 4008276, at *6. Applying this reasoning to Strickland’s claim, the
Eleventh Circuit held that at this stage of the proceedings Strickland had also presented
enough evidence to survive summary judgment. Strickland, 692 F.3d at 1155.
Regarding the substance of the plaintiffs’ claims, the Eleventh Circuit explained
that the directed verdict was likely affirmed because while O’Neill’s allegations were
based on the cumulative effects of working on the railroad, he had no documentation
showing he ever complained of the equipment that allegedly caused him injury, nor did
he ever notice or report any pain in his shoulder until after he stopped working. Id.
(citing O’Neill, 2011 WL 4008276, at *1). In contrast, Strickland was able to sufficiently
narrow down which rail car was allegedly defective. See id. at 1159. By identifying a
specific date and time of the injury and the type of the rail car involved (“tank car”),
Strickland made sufficient “specific allegations,” which O’Neill failed to make. Id.
Therefore, if a plaintiff alleging a FSAA violation can sufficiently narrow down which
piece of equipment was allegedly defective, then his claim should survive summary
judgment.

25

3. Analysis of St. George’s SAA claim
Defendant’s Motion for Summary Judgment on St. George’s FSAA claim fails.
As noted above, summary judgment is proper if, drawing all reasonable inferences in
favor of Plaintiff, there is no genuine issue as to any material fact and Defendant is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp., 477 U.S. at
322–23; Anderson, 477 U.S. at 249–50. In order to survive summary judgment on his
FSAA claim, Plaintiff must allege facts demonstrating that he worked with and was
injured by inefficient equipment that is subject to the FSAA. See Strickland, 692 F.3d at
1158; Myers, 331 U.S. at 483; Coleman, 681 F.2d at 544; Grogg, 841 F.2d at 212.
St. George claims that Supreme Court precedent does not require him to identify
“a specific car equipped with an inefficient safety appliance.” (Pl.’s Brief in Opp’n at 34
[Doc. No. 15].) The Court agrees. In Myers, the Supreme Court explained that a
defendant is liable under the FSAA if the jury can reasonably infer that a piece of
equipment on the defendant’s railroad was inefficient or defective. 331 U.S. at 482-83.
The Court stated that a plaintiff may either present evidence of a particular defect with
that equipment, or demonstrate that the equipment failed to work in its “normal, natural,
and usual manner” even though plaintiff operated it with due care. Id. While the Myers
Court presupposed that the plaintiff could identify which piece of equipment had injured
him, the Court did not require the plaintiff to identify the rail car to which the defective
equipment was attached. See id. In fact, the Eleventh Circuit reiterated this standard in
Strickland when it held that the district court had misconstrued the issue before it at
summary judgment. 692 F.3d at 1158. Instead of asking “whether there was evidence of
26

an inefficient handbrake,” the district court mistakenly “considered whether Strickland’s
failure to identify the rail car was fatal to his claim.” Id. Thus, although Plaintiff
concedes that “he is unable to identify the specific railcars,” which caused the cumulative
injuries that Plaintiff alleges, he is not required to in order to survive summary judgment.
(Pl.’s Brief in Opp’n at 31 [Doc. No. 15].)
Even though Plaintiff claims he was injured from the cumulative trauma of
working as a switchman and brakeman for BNSF, he must still identify particular pieces
of equipment that were allegedly defective. Tezak, 2010 WL 3211693, at *2 (citing
Muldowney, 130 F.2d at 975); O’Neill, 2011 WL 4008276, at *5. Here, St. George has
presented sufficient evidence alleging that he worked with and was injured by specific
defective equipment covered by the FSAA. (Pl.’s Brief in Opp’n at 31 [Doc. No. 15].)
Plaintiff’s FSAA claim is based primarily on allegedly defective couplers, pinlifters, air
hoses, and hand brakes. Although Plaintiff could not identify the precise car number that
had these defective pieces of equipment, he was able to limit the search to a particular set
of cars. For instance, in his response to Defendant’s Interrogatories he stated that the
“[p]aper box cars with cushioned underframes and three bars on the pinlifters” had the
defective pinlifters attached. (Carlson Aff., Ex. 2 at 3 [Doc. No. 16].) Additionally, he
stated that the cars which had defective air hoses were “the ADM cars with the UELX
numbers, Allrail older coal cars and what they call battleships.” (Id. at 4.) Moreover,
Plaintiff alleges that every time he encountered a car with a defective handbrake with a
short release handle, a defective railcar coupler, defective handbrakes, defective

27

pinlifters, or defective air hoses, he reported the cars to the yardmaster and carman on
duty. (Carlson Aff., Ex. 2 at 2-4 [Doc. No. 16].)
Plaintiff’s effort to narrow down the possible number of rail cars that could have
been involved is sufficiently similar to the plaintiff’s effort in Strickland. Like the
plaintiff in Strickland, St. George is able to identify the type of rail car that was involved
for much of the defective equipment. Strickland, 692 F.3d at 1155. Moreover, St.
George also contends it is possible to further narrow down the relevant rail cars by
referring to Defendant’s records. Id. at 1155 n. 5; (See Carlson Aff., Ex. 2 at 2-4 [Doc.
No. 16].) At this stage of the proceedings, Plaintiff adequately limits the particular subset
of railcars that had the allegedly defective appliances. See O’Neill, 2011 WL 4008276,
at *6 (explaining that a plaintiff’s failure to identify a specific defective device was
insufficient to grant defendant’s motion for summary judgment, but was a sufficient basis
to grant defendant’s motion for a directed verdict).
Defendant contends that Plaintiff’s case is similar to Tezak, O’Neill, and Boyd,
cases which also involve cumulative injury claims alleged by plaintiffs under the FSAA
(Def.’s Mem. of Law at 12 [Doc. No. 10].) The Court disagrees. Unlike the plaintiff in
Tezak who merely alleged that he “encountered” rail cars that violated the FSAA, here
St. George alleges specific pieces of equipment and appliances that were defective and
unsafe. (See Carlson Aff., Ex. 2 at 2-4 [Doc. No. 16].) Furthermore, he is able to
identify the series the locomotives that allegedly had the defective equipment. (Id.)
Plaintiff’s case is also distinguishable from O’Neill. In that case, the court
affirmed the district court’s grant of a directed verdict on the plaintiff’s FSAA claim.
28

O’Neill, 2011 WL 4008276, at *1. The court based its holding on the fact that (1) the
plaintiff did not narrow down which specific piece of defective equipment caused his
injuries, (2) the plaintiff “could not identify any injury he suffered from using a specific
piece of equipment at any specific time,” (3) “[the plaintiff] never complained about any
equipment” to the defendant railroad, and (4) the plaintiff also testified that “he had no
symptoms until about a decade after he stopped using the allegedly defective equipment.”
Id. at *4. In contrast, (1) St. George was able to narrow down which series of rail cars
likely had the defective equipment, (Carlson Aff., Ex. 2 at 2-4 [Doc. No. 16]); (2) he
alleges that his injury was caused by moving on and off equipment, as well as operating
switches, hand brakes, pinlifters, couplers, and other equipment, (Mewborn Aff., Ex. A at
1-2, 3-4 [Doc. No. 11-1]; Carlson Aff., Ex. 2 at 4 [Doc. No. 16]); (3) he reported
appliance defects every time he encountered them, (Carlson Aff., Ex. 2 at 2-4 [Doc. No.
16]); and (4) he maintains that his shoulders began aching while he was still working
(Carlson Aff., Ex. 1 at 68-70 [Doc. No. 16]).
St. George’s case is also distinguishable from the plaintiff’s cumulative injury
FSAA claim in Boyd. In Boyd, the Minnesota Court of Appeals granted the defendant’s
motion for summary judgment because the plaintiff could not prove the causation
element of his case. The court explained that nothing in the record indicated that moving
an allegedly non-complying railcar caused the plaintiff to slip on a ladder while the train
was stationary. Boyd, 2013 WL 3367421, at *5 (emphasis added). Here, however,
Defendant does not question the causation element of St. George’s claim.

29

Instead, Plaintiff’s case is more akin to Munns v. CSX Transportation, Inc., 579 F.
Supp. 2d 924 (N.D. Ohio 2008). Munns supports “[St. George’s] position that a
cumulative-trauma fact pattern can, in some cases, establish a fact issue under the
FSAA.” O’Neill, 2011 WL 4008276, at *5. In Munns, the plaintiff brought a cumulative
injury claim pursuant to the Locomotive Inspection Act (“LIA”). 5 579 F. Supp. 2d at
928. Evidence of his claim included entries in his personal time-books that noted the
occasions when he rode in a locomotive with a defective seat. Munns, 579 F. Supp. 2d at
928. Munns also submitted locomotive worksheets to his employer indicating when he
encountered defective seats. Id. Additionally, he identified a specific series of
locomotives that he believed had the defective seats on board. Id. The plaintiff could
not, however, “specify any particular locomotives with defective seats.” Id. (emphasis
added).
5

Although the Court agrees with Defendant that railroads have a broader duty under
the LIA than under the SAA, the Court disagrees with BNSF’s assertion that LIA cases
are inapposite to Plaintiff’s case. (See Def.’s Reply at 8 [Doc. No. 17].) In many
respects, a court’s analysis for evaluating a FSAA or a LIA claim is fairly similar. In
fact, in O’Neill, a case that Defendant relies on heavily in its brief (Def.’s Mem. of Law
at 11-12, 14 [Doc. No. 10]), the Minnesota Court of Appeals offered a similar
observation. The court explained that “[l]ike the FSAA, the LIA is an amendment to
FELA that imposes an absolute duty on interstate railroads to provide safe equipment and
allows claimants to bring suit under FELA if a safety violation causes injury. FSAA and
LIA cases apply similar reasoning.” O’Neill, 2011 WL 4008276, at *4 n. 1 (citing Steer
v. Burlington Northern, Inc., 720 F.2d 975, 977 (8th Cir. 1983)).
BNSF argues that LIA case law is irrelevant because plaintiffs bringing claims
under the LIA are not required to identify a specific piece of equipment that allegedly
caused their injury. (Def.’s Reply at 8 [Doc. No. 17].) The Court need not decide
whether a court’s analysis under the LIA presupposes that the plaintiff can identify a
specific piece of equipment that is allegedly defective. Instead, the Court acknowledges
that St. George must allege a defect with a specific piece of equipment in order to state a
claim under the FSAA. Thus, the Court proceeds by relying on LIA case law only
insofar as the analysis is analogous to FSAA analysis.
30

St. George has presented similar evidence substantiating his claim to the Court.
Like Munns, St. George identified a series of locomotives which he believes had
defective coupling equipment. (Carlson Aff., Ex. 2 at 3-4 [Doc. No. 16] (identifying the
ADM series with the UELX numbers, or the rail cars which were colloquially referred to
as “battleships,” as well as paper box cars with cushioned underframes that had three bars
on the pinlifters).) Furthermore, similar to Munns, St. George placed BNSF on notice of
its allegedly defective equipment. Plaintiff contends that every time he worked with a
defective appliance he reported it to the trainmaster on duty. (Carlson Aff., Ex. 2 at 2-4
[Doc. No. 16].) While Plaintiff does not allege that he kept a written record or submitted
written complaints to his employer, the Court finds that his oral complaints effectively
put Defendant on notice. Id. at 928-29; cf. O’Neill, 2011 WL 4008276, at *5 (affirming
the directed verdict on plaintiff’s FSAA claim because the plaintiff did not keep records
and never complained about his work conditions until after he stopped using the
allegedly defective equipment).
Even if Plaintiff is unable to present documentary evidence to corroborate his
claim that he reported all defective equipment to trainmasters on duty, he can testify to
the jury about his oral reports. It is then the jury’s role to weigh the credibility of his
testimony, not the Court’s. See Anderson, 477 U.S. at 255 (explaining that the fact finder
must make credibility determinations about testimony). Therefore, construing all facts in
favor of Plaintiff, the Court finds that Plaintiff has presented sufficient evidence to create
a genuine issue of fact that defective appliances caused his injuries.

31

THEREFORE, IT IS HEREBY ORDERED THAT:
1. Defendant BNSF Railway’s Motion for Summary Judgment [Doc. No. 8] is
DENIED, consistent with this Order.
2. This matter is scheduled for trial on January 12, 2015 at 9 am. It is one of three
matters so scheduled. A separate Trial Notice and Final Pretrial Order will
follow.

Dated: October 7, 2014

s/Susan Richard Nelson
SUSAN RICHARD NELSON
United States District Judge

32