Roloff v. BNSF Railway Company

Filing 52

PRETRIAL ORDER: Jury Trial remains set for 11/15/2010 at 09:00 AM in Courtroom 4, Federal Building, 100 Centennial Mall North, Lincoln, NE before Senior Judge Warren K. Urbom.Ordered by Magistrate Judge Cheryl R. Zwart. (CRZ)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA MARK A. ROLOFF, Plaintiff, vs. BNSF RAILWAY COMPANY Defendant. ) ) ) ) ) ) ) ) ) ) 4:09cv3178 ORDER ON FINAL PRETRIAL CONFERENCE

A final pretrial conference was held on the 21st day of October, 2010. Appearing for the parties as counsel were: Gene Napier and Corey Stull for plaintiff Mark A. Roloff and Thomas C. Sattler for defendant BNSF Railway Company. A. EXHIBITS Please see the attached Exhibit Lists of plaintiff and defendant. B. UNCONTROVERTED FACTS The parties have agreed that the following may be accepted as established facts for purposes of this case only: 1. Defendant is a corporation engaged in interstate commerce by railroad, and in the operation of a system of railways as a common public carrier of freight for hire between the various states of the United States. At all relevant times, defendant has conducted business in the State of Nebraska. C. CONTROVERTED AND UNRESOLVED ISSUES The issues remaining to be determined and unresolved matters for the court's attention are: 1. This is an action brought pursuant to the Federal Employers' Liability Act (FELA), 45 U.S.C. §51, et seq. 2. This Court has jurisdiction under 45 U.S.C. § 56 and 28 U.S.C. § 1331.

2.

3. 4.

Venue is proper in the Court under 28 U.S.C. § 1391(b)(2). On March 7, 2008, and for a long time prior thereto, Plaintiff was employed by the Defendant as a machine operator. Part of Plaintiff's duties were in furtherance of interstate commerce and directly and substantially affected such commerce and on March 7, 2008, and for a long time prior thereto, Plaintiff was employed by and engaged with Defendant in interstate commerce. On March 7, 2008, the Defendant was a corporation registered to do business in Nebraska and was engaged in the operation of a system of railways as a common public carrier of freight for hire between the various states of the United States and engaged in interstate commerce. Defendant operates trains in the transportation of freight in and between various Wyoming and Nebraska counties and in is and was at all times herein mentioned, engaged in business in Weston County, Wyoming. Did the plaintiff suffer injury within the course and scope of his employment with defendant? Was defendant negligent in one or more of the following particulars at the various times and places alleged in his Complaint: a. The defendant negligently failed to provide reasonably safe conditions for work in that when that it was made aware that the ballast and mud and ground were hard and frozen, it failed to modify, delay, or stop the work in progress until the ground conditions were more suitable for efficient and safe removal of the crib material. The defendant failed to provide reasonably safe tools and equipment in that the backhoe which was equipped with a cribbing bucket, was not the proper tool to accomplish the removal of frozen material from the track. The defendant should have attached to the backhoe boom an integrated hydraulic impact hammer, also known as a hoe ram or woodpecker or, in the alternative, attach a jackhammer tool to the backhoe boom. The defendant failed to provide reasonably adequate help in that co-workers who had access to jack hammers could have used the jack hammers to break up the frozen ground where plaintiff was working.

5.

6.

7. 8.

b.

c.

2

d.

The defendant failed to provide reasonably safe methods for work in that it required plaintiff to use a backhoe with a cribbing bucket to do a job that the said cribbing bucket was not suited to perform. The defendant failed to provide plaintiff with safe working conditions, safe work methods, proper training, and adequate supervision to perform the job that plaintiff was directed to do. The defendant negligently assigned Mr. Roloff to operate a backhoe to remove frozen ballast material when Mr. Roloff was not adequately trained to perform such work. The defendant failed to follow proper and safe methods in that the BNSF foreman in charge failed in his responsibility to perform the job in a safe manner with proper equipment which was readily available. The defendant failed to provide safe work methods, proper training, adequate supervision, adequate manpower, appropriate work tools and equipment. The defendant failed to follow defendant's back safety program in that it failed to apply its back safety principles to the backhoe cribbing assignment on March 7, 2008. The defendant failed to act as a prudent employer despite its knowledge, standards, research, and experience.

e.

f.

g.

h.

i.

j.

Defendant initially objected to all of the above Controverted and Unresolved Issues proposed by plaintiff except for the following found in Paragraph 13 of plaintiff's Complaint: a. requiring the plaintiff to plow through frozen ground on equipment that was either in a state of disrepair or not appropriate for the work task under those conditions; not allowing the plaintiff to do the work when warmer weather conditions would have made it easier; assigning multiple employees to the task of breaking up the frozen ground instead of putting one man on a jerking and unstable machine.

b. c.

At the PTC, Defendant withdrew its objections to a-h. It will further consider its objections to (i) and (j) after reviewing the deposition of
3

Michael Shinnick, and it will advise the court within five days as to whether the objections to (i) and (j) will be withdrawn. 9. 10. Did such negligence, if any, cause in whole or in part any injury to plaintiff and any consequent damage? Were any work-related injuries or damages sustained by plaintiff caused in whole or in part by his own negligence in one or more of the following particulars: a. b. c. d. e. f. failing to exercise reasonable care for his own safety and wellbeing; failing to observe conditions which could lead to injury, or if observed, to heed such conditions; failing to adopt and use safe work habits; failing to request additional physical or mechanical assistance which was then and there available, if necessary ; failing to use the equipment, tools or machines provided in an appropriate and safe manner; failing to properly inspect the equipment, tools or machines of which he was in charge and to report any defects of said equipment, tools or machines, and failed to put such in safe condition, if practicable; failing to conduct himself in accordance with the established customs and practices; failing to take time to work safely; failing to institute proper procedures so as not to injure himself in violation of BNSF Safety Rules and common practice, and other rules applicable; failing to report that he was experiencing any difficulty or problems with the equipment, tools, machines or work area; failing to request different or alternative equipment, tools or machines to perform his job assignment;
4

g. h. i.

j. k.

l. m. n. o.

failing to act within and in accordance with specific instruction and orders of his superiors; failing to act within and in accordance with training received through classroom instruction and on-the-job experience; failing to advise his supervisors that he was experiencing pain or discomfort as a result of his normal work activities; failing to timely seek appropriate and competent medical advice or treatment for the problems plaintiff was allegedly experiencing as a result of his work activities; failing to request reassignment if his work activities were causing any discomfort or problems; and such other acts of negligence as may be revealed by subsequent discovery or at trial.

p. q. 11.

If both plaintiff and defendant were negligent, what part or percentage of plaintiff's injury and consequent damage, if any, did each party's negligence cause? Were any injuries or damages allegedly sustained by plaintiff solely and proximately caused or contributed to, in whole or in part, by plaintiff's own acts not associated with his railroad employment or by other illness or injury not associated with his railroad employment? Were plaintiff=s injuries and damages, if any, caused, in whole or in part, by pre-existing conditions, or other contributory or concurrent conditions or factors, including events occurring prior or subsequent to the occurrence or course of events made the basis of plaintiff=s claim against BNSF? Were any alleged acts or failures of BNSF not a substantial factor or proximate cause of the incident alleged in the Complaint? Did any such acts or failures of BNSF merely create an incidental condition or situation in which the alleged accident, otherwise caused, resulted in injury to plaintiff? Plaintiff objects to the above Controverted and Unresolved Issue proposed by defendant. To be resolved at jury instruction conference. The parties intend to address this in their trial briefs.
5

12.

13.

14.

15.

Did the failure of any equipment, tools or machine create a condition in which plaintiff was injured or was such in itself an efficient cause or an instrumentality through which the injury alleged in the Complaint occurred? Are plaintiff's claims for relief barred by the applicable statute of limitations? Plaintiff objects to the above Controverted and Unresolved Issue proposed by defendant. This defense/allegation was raised in the answer. Its merits will be resolved at the time of trial.

16.

17.

Are plaintiff's claims for relief preempted, superseded or otherwise precluded by federal law? Plaintiff objects to the above Controverted and Unresolved Issue proposed by defendant. This defense/allegation was raised in the answer. Its merits will be resolved at the time of trial.

18.

What are the nature and extent of plaintiff's injuries, if any, and of plaintiff's consequent damages? Plaintiff specifies the following special damages and claimed permanent injuries claimed in this matter: Plaintiff claims no right to recover for past or future medical expenses. Plaintiff claims damages for conscious pain and suffering, and for economic damages as set forth in the report of economist Stan Smith.

19.

Did plaintiff fail to mitigate his damages in the following respects and if so, to what extent? a. b. c. by failing to make reasonable efforts to recover from his injuries; by failing to follow the treatment prescribed by his health care providers; by failing to earn wages when he was able to work;

6

d.

by failing to timely seek and obtain appropriate and competent medical advice or treatment which would resolve or reduce any alleged injury; and by failing to timely seek other employment or retraining consistent with any physical limitations or problems.

e.

Plaintiff objects to the above subparts a-e proposed by defendant. This defense/allegation was raised in the answer. Its merits will be resolved at the time of trial. 20. Should the jury be allowed to apportion damages among the various causes established by the evidence? Plaintiff objects to the above Controverted and Unresolved Issue proposed by defendant. This defense/allegation was raised in the answer. Its merits will be resolved at the time of trial. 21. Was a lien filed by the United States Railroad Retirement Board [hereinafter "RRB"] for benefits paid to plaintiff as a result injuries claimed herein, pursuant to § 12(o) of the Railroad Unemployment Insurance Act? Because said benefits could continue since the above lien, the amount of the lien may increase accordingly to the time of any settlement or judgment, or until said benefits have again been exhausted. Plaintiff objects to the above Controverted and Unresolved Issue proposed by defendant. This defense/allegation was raised in the answer. Its merits will be resolved at the time of trial. 22. Has BNSF paid premiums on behalf of plaintiff to the RRB for disability/annuity benefits that have ultimately been received by plaintiff? Defendant accordingly seeks an offset in the amount of said premiums paid by BNSF against any judgment entered for plaintiff herein. Plaintiff objects to the above Controverted and Unresolved Issue proposed by defendant. This defense/allegation was raised in the answer. Its merits will be resolved at the time of trial.
7

D. WITNESSES All witnesses, including rebuttal witnesses, expected to be called to testify by plaintiff except those who may be called for impeachment purposes as defined by NECivR 16.2(c) only, are: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. Mark A. Roloff Lusk, WY William L. Roloff Lincoln, NE Shirley Roloff Lincoln, NE Mike W. Roloff Plattsmouth, NE Denise Harrison Lincoln, NE Dirk Turner Rozet, WY Jimmy G. Long New Castle, WY Bill Narin Upton, WY Jim McDill New Castle, WY Ward Bates c/o BNSF Railway New Castle, WY Clint Seavers c/o BNSF Railway New Castle, WY Black Hills Surgery Center Medical Providers and Dr. Larry L. Teuber
8

11.

*12.

215 Anamria Drive Rapid City, SD 57701 13. Powder River Orthopedics & Spine, PC Nathan Simpson, M.D., Medical Providers 508 Stocktrail Avenue,Suite A Gillette, WY 82716 Thomas Atwood, DPM 2122 9th Street, Suite 3 Greely, CO 80631 Gillette Physical Therapy Medical Providers 201 Lakeway, Suite 700 Gillette, WY 82718 The Spine Center at Rapid City Neurological & Spine Surgery Associates, P.C. Medical Providers 4141 Fifth Street Rapid City, SD 57701 Cedar Hills Family Clinic Lanny Reimer, M.D. and Medical Providers 1121 Washington Boulevard Newcastle, WY 82701 East Casper Chiropractic Center Medical Providers 2121 East 2nd Street Casper, WY 82601 Elliott Chiropractic Travis Elliott, D.C., Medical Providers 1 South Senaca, Suite A Newcastle, WY 82701 Broken Bow Chiropractic Center, PC Douglas J.Bazya, D.C., Medical Providers 312 South 9th Avenue Broken Bow, NE 68822 Powder River Surgery Center Medical Providers
9

*14.

*15.

*16.

*17.

*18.

*19.

*20.

*21.

906 West 6th Street, Suite C Gillette, WY 82716 *22. Platt County Memorial Hospital Medical Providers 201 14th Street Wheatland, WY 82201 Edward Pelton, M.D. Mary Moody, P.A. Legend Buttes Health Services Box 272 11 Paddock Street Crawford, NE 69339 PT & Sports Medicine Medical Providers 821 Morehead Street Chadron, NE 69337 Campbell County Memorial Hospital Medical Providers P. O. Box 3011 Gillette, WY 82717 Chadron Medical Clinic David Johnson, M.D., Medical Providers 11 Paddock Crawford, NE 69339 Timothy Burd, M.D. James Devney, D.O. Nebraska Spine Center 13616 California Street, Suite 100 Omaha, NE 68154

*23.

*24.

*25.

*26.

*27.

Plaintiff will call: witness # 1, & his expert witnesses identified in that section of this PTC memorandum. Plaintiff may call witnesses 2-11. All witnesses prefaced with a "*" in plaintiff's witness list are for foundational records custodian purposes only. By agreeing to the listing of these witnesses for that limited purpose, defendant is not waiving any
10

objections or agreeing to the admissibility of any of the documents for which they may provide foundational testimony. 28. All persons identified in discovery. Defendant objects. Objection sustained. 29. All persons identified by Defendant. Defendant initially objected. However, at the PTC, this objection was withdrawn, provided the witnesses listed by the defendant for records custodian purposes only cannot be called for any other purposes by the plaintiff. 30. Impeachment witnesses as necessary.

All witnesses, including rebuttal witnesses, expected to be called to testify by defendant except those who may be called for impeachment purposes as defined by NECivR 16.2(c) only, are: WILL CALL: Mark A. Roloff, Plaintiff Crawford, NE Laurence Michael Fernandes Claims Representative BNSF Railway Company PO Box 597 Alliance, NE 69301 Jimmy G. Long Foreman/Supervisor BNSF Railway Company 100 South Railway Avenue Newcastle, WY 82701 Samuel "Casey" Turnbull Assistant Director Maintenance Production BNSF Railway Company 106 North Gillette Avenue Gillette, WY 82716
11

James "Ward" Bates BNSF Railway Company 100 South Railway Avenue Newcastle, WY 82701 William Narin BNSF Railway Company 100 South Railway Avenue Newcastle, WY 82701 James McDill BNSF Railway Company 100 South Railway Avenue Newcastle, WY 82701 Clint Siever BNSF Railway Company 100 South Railway Avenue Newcastle, WY 82701 Daniel B. Best Field Manager Medical & Environmental Health BNSF Railway Company 3700 Globeville Road Denver, CO 80216 Karen L. Stricklett, M.S., C.R.C., C.C.M., A.B.V.E. Stricklett & Associates, Inc. 14710 West Dodge Road, Suite 201 Omaha, NE G. Robert Newman, MSME, PE Robert Newman Engineering, LLC 1836 Delacourt Ave. Mount Pleasant, SC MAY CALL: Niel W. Niemi Senior Manager of Safety Central Region BNSF Railway Company 3700 Globeville Road Denver, CO 80216
12

Craig Sloggett Division Engineer BNSF Railway Company 106 North Gillette Avenue Gillette, WY 82716 Kathryn G. Straight Director of Administration BNSF Railway Company 107 North Gillette Avenue Gillette, WY 82716 Joseph Anderson Claims Representative BNSF Railway Company 2315 East Richards Street Douglas, WY 82633 Amanda Gambrell Director Field Clinical Operations Medical & Environmental Health BNSF Railway Company P.O. Box 981033 Fort Worth, TX 76161 David Crinklaw Excavating Foreman BNSF Railway Company 100 South Railway Avenue Newcastle, WY 82701 Matt Carr Surfacing Gang Foreman BNSF Railway Company 100 South Railway Avenue Newcastle, WY 82701 Mike Tucker Division Engineer BNSF Railway Company 107 North Gillette Avenue Gillette, WY 82716

13

James Varner BNSF Railway Company 100 South Railway Avenue New Castle, WY 82701 Black Hills Surgery Center Records Custodian 215 Anamria Drive Rapid City, SD 57701 Powder River Orthopedics & Spine, PC Records Custodian 508 Stocktrail Avenue, Suite A Gillette, WY 82716 Dr. Thomas Atwood, DPM 2122 9th Street, Suite 3 Greely, CO 80631 Gillette Physical Therapy Records Custodian 201 Lakeway, Suite 700 Gillette, WY 82718 The Spine Center at Rapid City Neurological & Spine Surgery Associates, P.C. Records Custodian Julie Dueis, PA-C Gloria Shobe 4141 Fifth Street Rapid City, SD 57701 Cedar Hills Family Clinic Records Custodian 1121 Washington Blvd. Newcastle, WY 82701 East Casper Chiropractic Center Records Custodian 2121 East 2nd Street Casper, WY 82601 Elliott Chiropractic Records Custodian 1 South Senaca, Suite A Newcastle, WY 82701
14

Broken Bow Chiropractic Center, PC Records Custodian 312 South 9th Avenue Broken Bow, NE 68822 Powder River Surgery Center Records Custodian 906 West 6th Street, Suite C Gillette, WY 82716 Platte County Memorial Hospital Records Custodian 201 14th Street Wheatland, WY 82201 Impeachment witnesses as necessary.

It is understood that, except upon a showing of good cause, no witness whose name and address does not appear herein shall be permitted to testify over objection for any purpose except impeachment. A witness whose only testimony is intended to establish foundation for an exhibit for which foundation has not been waived shall not be permitted to testify for any other purpose, over objection, unless such witness has been disclosed pursuant to Federal Rule of Civil Procedure 26(a)(3). A witness appearing on any party's witness list may be called by any other party. E. EXPERT WITNESSES' QUALIFICATIONS

Experts to be called by plaintiff and their qualifications are: **Raymond A. Duffany 6221 Lindsay Court West Bloomfield, MI 48324 CV attached Stan V. Smith, Ph.D. Smith Economics Group, Ltd. 1165 N. Clark Street, Suite 600 Chicago, IL 60610 CV attached
15

Terry L. Cordray, M.S.,CRC, CCM, ABVE P. O. Box 14456 Lenexa, KS 66285-4456 CV attached **Michael D. Shinnick, Ed.D. Dynamics Research Group, Inc. Research Park, Suites 201-202 Assessment Center, Suite 203 670 Sunshine Farm Lane Blacksburg, VA 24060 CV attached **Nathan Simpson, M.D. Powder River Orthopedics & Spine, PC 508 Stocktrail Avenue,Suite A Gillette, WY 82716 CV attached Experts to be called by defendant and their qualifications are: **Karen L. Stricklett, M.S., C.R.C., C.C.M., A.B.V.E. Stricklett & Associates, Inc. 14710 West Dodge Road, Suite 201 Omaha, NE CV attached **G. Robert Newman, MSME, PE Robert Newman Engineering, LLC 1836 Delacourt Ave. Mount Pleasant, SC CV attached The parties intend to file motions in limine as to certain portions of the opinions offered by the plaintiff and defense experts prefaced with a " ** ". The plaintiff also intends to file a motion as to the testimony of Dan Best. Given the potential scope of the motions in limine they may raise, the parties were encouraged to file such motions prior to the deadline to permit the court to fully consider
16

F. VOIR DIRE The parties will conduct the voir dire, including any preliminary examination. Each side shall have no less than 90 minutes each to conduct voir dire. G. NUMBER OF JURORS This matter will be tried to a jury composed of twelve (12) members, plus two alternates due to the projected length of the trial. H. VERDICT The Parties will not stipulate to a less than unanimous verdict. I. TRIAL BRIEFS AND JURY INSTRUCTIONS Trial briefs shall be filed consistent with the requirements of NECivR 39.2(a). Proposed jury instructions shall be filed and delivered to the judge consistent with the requirements of NECivR 51.1. J. LENGTH OF TRIAL Counsel estimate the length of trial will consume not less than five (5) days, not more than seven (7) days. K. TRIAL DATE Jury selection and opening statements may begin during the week of November 15, 2010.

MARK A. ROLOFF, Plaintiff By: s/ Gene Napier Gene Napier Charles Gordon Mike O'Neal Union Station ­ Suite 350 30 West Pershing Road Kansas City, MO 64108 T: [phone]
17

By:

s/ Corey L. Stull Corey L. Stull, #21336 Perry, Guthery, Haase, & Gessford 233 S. 13th Street, Ste. 1400 Lincoln, NE 68508 T: [phone]

BNSF RAILWAY COMPANY, Defendant By: s/ Thomas C. Sattler Thomas C. Sattler, #16363 WOLFE, SNOWDEN, HURD, LUERS & AHL, LLP Wells Fargo Center 1248 "O" Street, Suite 800 Lincoln, NE 68508 T: [phone] [e-mail]

Dated this 21st Day of October, 2010. BY THE COURT:

__________________________ United States Magistrate Judge

18

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA MARK A. ROLOFF, Plaintiff, v. BNSF RAILWAY COMPANY, Defendant. Trial Date(s): November 15-19, 2010 ) ) ) ) ) ) ) ) )

PLAINTIFF'S LIST OF EXHIBITS Case Number: 4:09CV3178 Courtroom Deputy: Court Reporter:

EXHIBIT NO. PLF DF 3 PTY DESCRIPTION OFF OBJ RCVD NOT RCVD DATE

1

Lanny Reimer, MD Cedar Hills Family Clinic ­ Medical records[Bates No. ROL00061-ROL00071] Broken Bow Chiropractic ­ Medical records [Bates No. ROL00072-ROL74] Elliott Chiropractic ­ Medical records [Bates No. ROL00075-00077] Black Hills Imaging Center ­ Medical records [Bates No. ROL00088-ROL00089] Larry Teuber, MD Spine Center at Rapid City ­ Medical records Black Hills Surgery Center ­ Medical records Nathan Simpson, MD Powder River Orthopedics & Spine ­ Medical records Gillette Physical Therapy ­ Medical records Powder River Surgery Center ­ Medical records

R, H, A, Foundation

2

R, H, A, Foundation

3

R, H, A, Foundation

4

R, H, A, Foundation

5

R, H, A, Foundation

6 7 8 9

R, H, A, Foundation R, H, A, Foundation R, H, A, Foundation R, H, A, Foundation

10

Edward Pelton, MD David Johnson, MD Mary Moody, PA Legend Buttes Health Services Chadron Medical Clinic ­ Medical records PT & Sports Medicine ­ Medical records Campbell County Memorial Hospital ­ Medical records Timothy Burd, MD James Devney, DO Nebraska Spine Center ­ Medical records Medical illustrations of cervical spine anatomy (Simpson deposition exhibit) Medical illustrations of cervical spine injuries and first surgery (Simpson deposition exhibit) Medical illustration of second surgery (Simpson deposition exhibit) BNSF Employee Personal Injury/Occupational Illness Report dated 05.23.08 Statement transcript dated 12.11.08 (Plaintiff's deposition exhibit 1) Cribbing bucket photograph (Plaintiff's deposition exhibit 2) Enlarged bucket photograph (Plaintiff's deposition exhibit 3)
2

R, H, A, Foundation

11 12 13

R, H, A, Foundation R, H, A, Foundation R, H, A, Foundation

14

R, H, Foundation, Cumulative, Rule 403 R, H, Foundation, Cumulative, Rule 403 R, H, Foundation, Cumulative, Rule 403 None

15

16

17

18

None

19

None

20

None

21

Cat 950 loader photograph (Plaintiff's deposition exhibit 4) Cat 420E photograph (Plaintiff's deposition exhibit 5) Aerial photograph (Plaintiff's deposition exhibit 6) Aerial photograph (Plaintiff's deposition exhibit 7) Map photograph (Plaintiff's deposition exhibit 8) Map photograph (Plaintiff's deposition exhibit 9) Complaint (Plaintiff's deposition exhibit 10) Plaintiff's Answers to Interrogatories (Plaintiff's deposition exhibit 12) Plaintiff's 2002 to 2009 income tax records Plaintiff's school records obtained from Plattsmouth Community School District Raymond Duffany report Raymond Duffany CV Raymond Duffany handwritten notes (Duffany deposition 07.15.10 Exhibit 4)

None

22

None

23

R, H, Foundation

24

R, H, Foundation

25 26 27 28

R, H, Foundation R, H, Foundation R R, H, Foundation

29 30

None None

31 32 33

R, H, Foundation, Cumulative R, H, Foundation, Cumulative R, H, Foundation, Cumulative

3

34

Raymond Duffany typed notes (Duffany deposition 07.15.10 Exhibit 5) Raymond Duffany billing (Duffany deposition 07.15.10 Exhibit 6) Enlarged photograph of tractor with backhoe attachment (Duffany deposition 10.14.10 Exhibit 1) Enlarged photograph of backhoes with impact wrench and digging bucket (Duffany deposition 10.14.10 Exhibit 2) Enlarged photograph of cribbing buckets(Duffany deposition 10.14.10 Exhibit 3) Terry L. Cordray 03.04.10 report Terry L. Cordray 07.14.10 report Terry L. Cordray's file regarding Mark Roloff (Cordray deposition Exhibit 4) Terry L. Cordray CV Terry L. Cordray fee schedule Terry L. Cordray depositions and court testimony
4

R, H, Foundation, Cumulative R, H, Foundation, Cumulative As Stated in Deposition and Motion in Limine As Stated in Deposition and Motion in Limine As Stated in Deposition and Motion in Limine R, H, Foundation, Cumulative R, H, Foundation, Cumulative R, H, Foundation, Cumulative

35

36

37

38

39 40 41

41A 42 43

R, H, Foundation, Cumulative R, H, Foundation, Cumulative R, H, Foundation, Cumulative

44

Stan V. Smith report and all materials and documents referenced in his report Stan V. Smith CV Stan V. Smith fee schedule Stan V. Smith depositions and court testimony Michael D. Shinnick report Michael D. Shinnick CV Michael D. Shinnick depositions and court testimony Michael D. Shinnick fee schedule Plaintiff's BNSF personal file Correspondence to Plaintiff from Kathryn G. Straight BNSF Director of Administration Re: Correction of date on letter dated 05.28.08 Plaintiff's BNSF Employee Transcript file Correspondence to Plaintiff from Mike Tucker dated 05.28.08 Correspondence to Plaintiff from Daniel Best dated 06.03.28
5

R, H, Foundation, Cumulative R, H, Foundation, Cumulative R, H, Foundation, Cumulative R, H, Foundation, Cumulative R, H, Foundation, Cumulative R, H, Foundation, Cumulative R, H, Foundation, Cumulative R, H, Foundation, Cumulative R, H, Foundation None

45 46 47 48 49 50

51 52 53

54 55

None None

56

None

57

Correspondence to Plaintiff from Amanda Gambrell dated 12.01.08 Correspondence to Plaintiff from Daniel Best dated 03.23.09 Correspondence to Plaintiff from Daniel Best dated 07.06.09 Correspondence to Plaintiff from Daniel Best dated 08.26.09 Plaintiff's BNSF monthly earnings history BNSF Maintenance of Way Operating Rules 10.31.04 BNSF Maintenance of Way Safety Rules 10.30.05 (Including revisions up to 08.10.07) Powder River Division Timetable No. 8 11.29.06 BNSF Employee Safety Rules 10.30.05 (Including revisions up to 09.01.07) Anatomical exhibit Defendant's answers to interrogatories Defendant's answers to request for production RRB records Medical bills
6

None

58

None

59

None

60

None

61 62 63

None None None

64 65

R, H, Foundation None

66 67 68 69 70

R, H, Foundation, Cumulative R, H, Foundation, Cumulative R, H, Foundation, Cumulative R, H, Foundation R, H, Foundation

71 72 73 74 75 76

Weather report Medical illustration of surgical procedure Post-surgical MRI Plaintiff's deposition transcript 03.25.10 Ward Bates deposition transcript 11.02.10 Clinton W. Siever deposition transcript 05.26.10 James E. McDill deposition transcript 05.26.10 William S. Narin deposition transcript 05.26.10 Jimmy G. Long deposition transcript 05.26.10 Raymond Duffany deposition transcript and exhibits 07.15.10 Raymond Duffany deposition, video tape, and exhibits 10.14.10 Terry L. Cordray deposition transcript and exhibits 10.12.10 Michael D. Shinnick deposition transcript and exhibits 07.07.10 Karen L. Stricklett deposition transcript and exhibits 10.13.10
7

None R, H, Foundation, Cumulative R, H, Foundation, Cumulative R, H, Foundation, Cumulative R, H R, H

77 78 79 80

R, H R, H R, H R, H, Foundation, Cumulative R, H, Foundation, Cumulative R, H, Foundation, Cumulative R, H, Foundation, Cumulative R, H, Foundation, Cumulative

81

82

83

84

85

Robert Newman deposition transcript and exhibits 10.29.10 Enlarged photograph of impact hammer

R, H, Foundation, Cumulative R, H, Objections Stated in Duffany Deposition and Motion in Limine R, H, Cumulative R, H, Foundation R, H, Foundation R, H, Foundation

86

87 88 89 90

Daniel Best deposition transcript and exhibits Rawhide Drug Co. [Bates No. ROL00271-00272] Crawford Pharmacy [Bates No. ROL00273] Campbell County Memorial Hospital CDs of medical images Black Hills Surgical Hospital CD of medical images Powder River Orthopedics & Spine CD of medical images Powder River Orthopedics & Spine radiology films Plaintiff's 2008 calendar Any exhibit needed for rebuttal Any exhibit used or identified in discovery Any document produced in discovery All diagrams or charts made or generated during trial
8

91

R, H, Foundation

92

R, H, Foundation

93 94 95 96 97 98

R, H, Foundation R, H, Foundation Reserve All Reserve All Reserve All Reserve All

99

Enlarged photograph of impact hammer

R, H, Objections Stated in Duffany Deposition and Motion in Limine R, H, Cumulative

100
OBJECTIONS R: Relevancy H: Hearsay A: Authenticity O: Other (specify)

Dan Best deposition transcript and exhibits

MARK A. ROLOFF, Plaintiff HUBBELL PEAK O'NEAL NAPIER & LEACH By: s/Gene C. Napier________________________ Gene C. Napier G. Michael O'Neal 30 West Pershing Road, Suite 350 Kansas City, MO 64108 Telephone: [phone] Email: [e-mail] [e-mail] And Corey L. Stull PERRY, GUTHERY, HAASE & GESSFORD, P.C., L.L.O. 233 South 13th Street, Suite 1400 Lincoln, NE 68508 Telephone: [phone] Facsimile: 402-476-0094 Email: [e-mail]

9

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA MARK A. ROLOFF, Plaintiff, vs. BNSF RAILWAY COMPANY Defendant. Trial Date: November 15, 2010 ) ) ) ) ) ) ) ) ) ) 4:09cv3178 DEFENDANT'S TRIAL EXHIBIT LIST

PL

DEF

DESCRIPTION

OFF

OBJ

RCV D

NOT RCVD

DATE

1

BNSF Employee Personal Injury/Occupational Illness Report dated 05/23/2008 (1 pg.) [Bates No. DEF00170] BNSF's Employee Transcript (5 pgs.) [DEF00171 ­ DEF00175]

None

2

R H A Foundation Cumulative

3

Audio Recording of Statement

R H A Foundation Cumulative

4

Plaintiff's Recorded and Transcribed Statement dated 12/11/2008 (83 pgs.) [Bates Nos. DEF00176 ­ DEF00258] Correspondence from Kathryn G. Straight, BNSF Railway Company, to Mark A. Roloff, no date (1 pg.) [DEF00259]

R H A Foundation R H A Foundation

5

6

Correspondence from Mike Tucker, Division Engineer, BNSF Railway Company, to Mark A. Roloff dated 05/28/2008 (1 pg.) [DEF00260] Correspondence from Daniel E. Best, Field Manager, Medical & Environmental Health, BNSF Railway Company, to Mark A. Roloff dated 06/03/2008 (2 pgs.) [DEF00261 ­ DEF00262] Correspondence from Amanda Gambrell, Director Field Clinical Operations, Medical & Environmental Health, BNSF Railway Company, to Mark A. Roloff dated 12/01/2008 (3 pgs.) [DEF00263 ­ DEF00265] Correspondence from Daniel E. Best, Field Manager, Medical & Environmental Health, BNSF Railway Company, to Mark A. Roloff dated 02/9/2009 Correspondence from Daniel E. Best, Field Manager, Medical & Environmental Health, BNSF Railway Company, to Mark A. Roloff dated 03/23/2009 (1 pg.) [DEF00266] Correspondence from Daniel E. Best, Field Manager, Medical & Environmental Health, BNSF Railway Company, to Mark A. Roloff dated 07/06/2009 (3 pgs.) [DEF00267 ­ DEF00269] Correspondence from Daniel E. Best, Field Manager, Medical & Environmental Health, BNSF Railway Company, to Mark A. Roloff dated 08/26/2009 (1 pg.) [DEF00270] Correspondence from Daniel E. Best, Field Manager, Medical & Environmental Health, BNSF Railway Company, to Mark A. Roloff dated 6/24/10 (3 pgs.)

R H A Foundation R H A Foundation R H A Foundation

7

8

9

R H A Foundation R H A Foundation R H A Foundation R H A Foundation R H A Foundation

10

11

12

13

2

14

Employee Monthly Earnings History from January, 1998 ­ May, 2008 (2 pgs.) [Bates Nos. DEF00271 ­ DEF00272] BNSF Maintenance of Way Operating Rules (Revised May 3, 2007) (96 pgs.) [DEF00273 ­ DEF00368] BNSF Maintenance of Way Safety Rules (Revised August 10, 2007) (102 pgs. ) [DEF00369 ­ DEF00470] BNSF Railway Company's Employee Safety Rules (Revised September 1, 2007) (70 pgs.) [DEF00509 ­ DEF00578] Aerial Photo of Newcastle Main Street Crossing The Spine Center/Neurology Associates Patient Questionnaire 5/21/08 [NSA00015 ­ NSA00018] The Spine Center/Neurology Associates Phone Message Note 5/22/08 [NSA00008] The Spine Center/Neurology Associates Phone Message Note 5/22/08 [NSA00006] The Spine Center/Neurology Associates Notes of Telephone Call Julie Dueis, PA-C 6/3/08 at 8:30 a.m. with M. Roloff [NSA00005] The Spine Center/Neurology Associates Note of Telephone Call Gloria F. Shobe 5/28/08 at 4:21 p.m. with M. Roloff [NSA00004] Elliott Chiropractic Progress Note M. Roloff 4/4/08 [EChiro00006] Elliott Chiropractic New Patient Form M. Roloff 4/4/08 [EChiro00007 EChiro00008] East Casper Chiro. Center Radiographic/Pathology Report 6/18/02 [ECCC00004]

None

15

None

16

None

17

None

18 19

None None

20

None

21

None

22

None

23

None

24 25

None None

26

None

3

27

Patient Intake Information Form, Physical Therapy & Sports Medicine [P'sDisc00216; ROL00240] BNSF Engineering Standards Manual Acknowledgement of Receipt 3/22/99 BNSF Safety Rules Acknowledgement 1/31/96 BNSF Safety Rules Acknowledgement 1/17/96 Formal Notice to Recall to Service 3/11/87 R.J. Zimmerman to M. Roloff

None

28

None

29 30 31

None None R H A Foundation

32

Formal Notice to Recall to Service 3/26/86 R.J. Zimmerman to M. Roloff

R H A Foundation

33

Formal Notice to Recall to Service 3/29/85 R.J. Zimmerman to M. Roloff

R H A Foundation

34

Plattsmouth Community School District Transcripts of M. Roloff

R H A Foundation

35 36

M. Roloff DOT Certification Records Personal Information Change (PIC) 1/15/02 M. Roloff

None R H A Foundation

37

M. Roloff Employee Personal Record (Hard Card)

R H A Foundation

38 39

M. Roloff Employment Application 12/29/76 M. Roloff 2008 Calendar [ROL00300 ­ ROL00353]

None None

4

40 41 42 43 44 45 46 47 48

M. Roloff Tax Returns 2009 M. Roloff Tax Returns 2008 M. Roloff Tax Returns 2007 M. Roloff Tax Returns 2006 M. Roloff Tax Returns 2005 M. Roloff Tax Returns 2004 M. Roloff Tax Returns 2003 M. Roloff Tax Returns 2002 BNSF Personnel Activity Tracking System M. Roloff: 1-19-08 ­ 6-6-08

None None None None None None None None R H A Foundation

49 50

BNSF Newcastle, Wyo./Line Segment 4 Track Chart Photograph of Cribbing Bucket (Newman Photo)

None R H A Foundation

51

Photograph of Cribbing Bucket (Newman Photo)

R H A Foundation

52

Photograph of Cribbing Bucket Teeth/Retaining Pin (Newman Photo)

R H A Foundation

53

Photograph of Cribbing Bucket Teeth/Retaining Pin (Newman Photo)

R H A Foundation

54

Photograph of Cat 420E (Newman Photo)

R H A Foundation

5

55

Photograph of Cat 420E (Newman Photo)

R H A Foundation

56

Photograph of Cat 420E (Newman Photo)

R H A Foundation

57

Photograph of Cat 420E with Outriggers (Newman Photo)

R H A Foundation

58

Photograph of Cat 420E with Outriggers (Newman Photo)

R H A Foundation

59

Photograph of Newcastle, Wyo. Main Street Worksite (Newman Photo)

R H A Foundation

60

Photograph of Standard Backhoe Bucket (Newman Photo)

R H A Foundation

61

Photograph of Frost/Ripper Bucket (Newman Photo)

R H A Foundation

62

Photograph of Frost/Ripper Bucket (Newman Photo)

R H A Foundation

63

Weather Records for Newcastle, Wyo. for the months of February and March, 2008

R H A Foundation

6

64

Complaint and Request for Jury Trial in re: Mark A. Roloff v. Burlington Northern Railroad Company; In the U.S. District Court for the District of Colorado, Civil Action No. 92-M-1943.

R H

OBJECTIONS R: Relevancy H: Hearsay A: Authenticity O: Other (specify)

7

...

ROBERT

NEWMAII

EIIGIIIEERIIIG
Railway Track Mechanical Marketing

llC
Robert Newman

MSME, PE 8·13.360.4405 [e-mail] www.railwayexpertwitness.com Charleston, SC

Resume of G. Robert Newman

Network Rail
~~

12

RESUME of G. Robert Newman

Background: 1. 2. 3. 4. 5. 36 years Railway Engineering and Railway Track Engineering Experience Registered Professional Engineer (South Carolina with Reciprocity 50 States) BS Mechanical Engineering University of Tennessee MS Mechanical Engineering University of Tennessee Business Experience: 21 years as President of a $280 M per year company manufacturing railway track maintenance machinery and providing on track contract services. Total 36 years with the company with most time spent in General Management, design of heavy machinery, engineering of structures, design safety, litigation, and machine components. Company: Harsco Track Technologies Division of Harsco Corporation (Now Harsco Rail) Graduate US Navy Officer Candidate School AMS® (Accredited Marine Surveyor® for legal, insurance, engines & safety) Non Technical Expertise a. b. c. d. e. f. g. Product Liability On track safety Industrial Safety Business Interruption Costs Extensive Deposition Experience Extensive Litigation Experience International Business Marketing and Management

6. 7. 8. 9.

10. Areas of technical expertise: a. b. c. d. e. f. g. h. i. j. k. I. m. n. o. p. q. r. s. 1. u. On Track Heavy Machinery On Track Light Machinery Railway Ballast Railway Track Maintenance and Construction Machinery Insurance Claims - Technical On track safety engineering Off track safety engineering Industrial Safety engineering Off Road Vehicles On Road Vehicles On Track Machinery Construction Machinery Including Earth Moving Lifting Equipment Open Deck Railway Bridges Ballast Deck Railway Bridges Railway Lifting Equipment Railway Power Tools Railway Hand Tools Conveyors Material Handling Hydraulic Controls

13

...

v. Electrical Controls for Hydraulic and Mechanical Systems w. Structural x. Manufacturing Engineering Including Fabrication of Structures and Machinery (Cutting, Bending, Machining of Metal Fabrications) y. Foundry Processes z. General Machine Design aa. Power Train Including Railway and Marine bb. Diesel Power cc. Gasoline Power dd. Transmissions ee. Hydraulic Brakes ff. Railway Engineering (Track & Rolling Stock) gg. US Navy Experience with Diesel Engines, Boilers, and Turbines hh. Marine (Accredited Marine Surveyor®) Website: http://www.marineenginesurvey.com/ 11. Extensive experience conducting business in USA, China, India, Australia, Japan, Canada, and United Kingdom 10. Other interests: a. b. c. d. e. f. Intercoastal Waterway Cruising Marine Surveying Antique cars High performance cars Water skiing Bicycling

11. Other Information I Accomplishments g. h. i. j. k. I. Tau Beta Pi Engineering Honorary Society Pi Tau Sigma Mechanical Engineering Honor Society Eagle Scout Past Leader Boy Scouts of America Holder 4 patents: Railway Engineering Author or Co-Author Several Papers for Railway Engineering

CONTACT: Robert Newman: 843-860-4405 [e-mail]

14

",

Network Rail
~~

Example of one of many types of machines I have been involved in the design of. This is a Tamper, and it is used to smooth and align railway track. It is a complex structural machine using Diesel power and computer controlled hydraulics to control the machine and do the work.

Switch & Crossing Rail Grinder Network Rail - United Kingdom

T

Track Renewal Train

15