Stacy et al v. BNSF Railway Company

Filing 148

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS - granting 68 Motion for Summary Judgment; granting 71 Motion for Summary Judgment; granting 74 Motion for Summary Judgment; granting 77 Motion for Summary Judgment; granting 80 Motion for Summary Judgment. Signed by Judge Donald W. Molloy on 3/27/2015. (APP, ) Copy mailed to Dean Stacy this date.

FILED

MAR 2 7 2015
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

DEAN STACY, NORMA STACY,
DONALD STACY, STEVE CARVEY,

and ANTHONY STACY,

CIeri<, u.s. District Court
District Of Montana
Missoula

CV 13-S7-M-DWM-JCL

ORDER

Plaintiffs,
vs.
BNSF RAILWAY COMPANY, a
Delaware corporation,
Defendant.

This matter comes before the Court on Defendant BNSF Railway
Company's ("BNSF") motions for summary judgment. (Doc. 6S, 71, 74, 77, SO.)
Magistrate Judge Lynch entered findings and recommendations on February 23,
2015, recommending the Court grant BNSF's motions because the plaintiffs'
claims are barred by the statute of limitations and the plaintiffs cannot establish
the essential elements of their claim for negligence without expert testimony.
(Doc. 146.) The Court agrees with Judge Lynch, and BNSF's motions are granted.
The parties are entitled to de novo review of the specified findings or
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recommendations to which they object. 28 U.S.C. § 636(b)(1). Findings and
recommendations not specifically objected to are reviewed for clear error.
McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313
(9th Cir. 1981). Clear error exists if the Court is left with a "definite and firm
conviction that a mistake has been committed." United States v. Syrax, 235 F.3d
422,427 (9th Cir. 2000). On March 25,2015, the plaintiffs filed a "motion
against summary judgment," which is construed as an objection. (Doc. 147.)
The plaintiffs raise five points in their objection. First, they contend that it
was BNSF, not the plaintiffs, that chose to be in Federal court. Second, that an
automatic bankruptcy stay on proceedings against W.R. Grace and BNSF was
what delayed their claims. Third, that the plaintiffs do not have an expert witness.
Fourth, extensive medical histories were provided to BNSF. And, finally, that
BNSF has taken actions to remove asbestos from certain areas but not others even
though BNSF transported "loaded cars" through these places. Having considered
these objections, the Court agrees with Judge Lynch's analysis and conclusions.
First, it is unclear how the fact this case was removed to Federal court
impacts the summary judgment analysis. To the extent the plaintiffs are arguing
that it is inconsistent for BNSF to want to be in this Court and at the same time
seek summary disposition of the plaintiff s claims, such an argument is
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unpersuasive and has no bearing the legal or factual issues before the Court.
The plaintiffs' second objection is construed as a response to BNSF's
statute of limitations argument. According to the plaintiffs, their claims were
initially brought in 2001 and it was the bankruptcy stay that caused the prolonged
delay in adjudication. There are two factual problems with the plaintiffs'
argument. First, their respective cases in 2001 were against WR Grace, not BNSF.

(See Docs. 70-9, 70-10, 73-7 at 1-3, 76-10 at 3, 79-7.) Second, the stay was not
extended to BNSF until 2008, (Doc. 6-1 at 33-34), and the plaintiffs did not file
anything against BNSF during that seven year period. By the time BNSF was
made part of the bankruptcy stay, the statute of limitations had already run. As a
result, the claims of Plaintiffs Dean Stacy, Norma Stacy, Donald Stacy, and Steve
Carvey are barred by Montana's three-year statute of limitations for negligence
actions. Kaeding v. W.R. Grace & Co., 961 P.2d 1256, 1259 (Mont. 1998).
The plaintiffs' third objection further supports the conclusion reached by
Judge Lynch. The plaintiffs state that they were going to hire expert Terry Spear,
but do not have the necessary funds. The plaintiffs do not object to Judge Lynch's
determination that his case involves matters beyond the common experience of a
lay juror. In such a case, summary judgment dismissal is warranted if the plaintiff
fails to present expert testimony necessary to prove the elements of his negligence

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claim. Dubiel v. Mont. Dep't of Transp. , 272 P.3d 66, 70 (Mont. 2012); Fed. R.
Civ. P. 26(a)(2). In light ofthe lack of expert testimony, the plaintiffs' last two
objections do not make summary disposition improper. The record indicates
extensive medical information on the plaintiffs, going as far back as 2001. (See
e.g. Doc. 70-2, 70-3, 70-5.) However, even with those records and factual
assertions that BNSF was transporting asbestos, expert testimony is necessary to
show the standard of care applicable to a railroad transporting asbestos and
whether BNSF's conduct deviated from that standard. Further, the question of
whether the plaintiffs developed asbestosis or an asbestos-related disease as a
result of having been exposed to asbestos by BNSF involves complex issues of
medical causation. Even if the plaintiffs' assertions that they have asbestos­
related medical conditions and BNSF transported asbestos through their area are
assumed to be true, these facts are insufficient to prove the elements of negligence
in the absence of expert testimony.
Accordingly, IT IS ORDERED that the Findings and Recommendation
(Doc. 146) are ADOPTED IN FULL.
IT IS FURTHER ORDERED that BNSF's motions for summary judgment
(Docs. 68, 71, 74, 77, 80) are GRANTED.
IT IS FURTHER ORDERED that the Clerk of Court is directed to enter
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judgment in favor ofBNSF and against the plaintiffs and close this case.
Dated this n!:day of March, 2015.

loy, District Judge
.strict Court

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