Roloff v. BNSF Railway Company

Filing 98

ORDER granting 65 Motion to Continue. Status Report due by 12/8/2010. Ordered by Magistrate Judge Cheryl R. Zwart. (CRZ)

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lo R 8. cD 9o IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF NEBRASKA M A R K A. ROLOFF, Plaintiff, v. B N S F RAILWAY COMPANY, Defendant. ) ) ) ) ) ) ) ) ) 4 :0 9 C V 3 1 7 8 M E M O R A N D U M AND ORDER P e n d in g before me is the plaintiff's motion to continue, (filing no. 65). A conference call was h e l d today, and after further argument was elicited from the parties, the court took the motion under a d v is e m e n t pending an opportunity to review the evidence and arguments filed of record. After re v ie w i n g the parties' submissions, the plaintiff's motion to continue will be granted. T h e trial of this case was set to commence on November 15, 2010. The pretrial conference w a s held on October 21, 2010, at which time the parties agreed the case would be ready for trial by N o v e m b e r 15. On November 5, 2010, the plaintiff moved to continue the trial because he "has just l e a r n e d of facts in depositions taken recently that demonstrate this matter is not yet ripe for trial." F ilin g No. 65. Specifically, plaintiff's counsel argues that until the deposition of plaintiff's treating p h ys i c i a n , Nathan Simpson M.D., was taken on October 19, 2010, he did not know the plaintiff's in j u r i e s arose from both acute and chronic causes, and he was unaware the plaintiff had not yet re a c h e d maximum medical improvement. These concerns were not raised at the pretrial conference. A s explained in the plaintiff's brief, the plaintiff has worked for the railroad's track d e p a r t m e n t since 1977, and in that capacity, he has operated equipment which exposed his body to v i b r a tio n and shaking. Although this shaking had sometimes caused muscle pain, up until March 7 , 2008, the plaintiff was able to "work through" this pain. Filing No. 66, p. 3, 13. The plaintiff re c e iv e d chiropractic treatment for back pain dating back to 2002. Filing No. 86-4. mc .a i t s J . s te cD o u ko T h e plaintiff claims that on March 7, 2008, while operating a backhoe to remove frozen mud a n d ballast located between railroad ties, he experienced intense neck pain which did not subside. H e claims the neck pain was caused by the jerking motions of the backhoe. A report signed by the p la in tiff on May 23, 2008 states the plaintiff had "[b]een having problems for years now its at the p o in t where my left arm goes numb all the way to my fingers." Filing No. 86-3. In July 2008, Dr. S i m p s o n reviewed magnetic resonance imaging of the plaintiff's spine and diagnosed a cervical disc h e rn ia tio n at C6-7 and degenerative changes at C5-6. Filing No. 67-3, Simpson deposition, 9:181 0 : 4 . After conservative treatment modalities failed, Dr. Simpson performed a two-level surgical fu s i o n on plaintiff's cervical spine to repair the herniated disc. The fusion surgery was only partially s u c c e s s fu l ; one level of the fusion fused properly, and the other did not. Further surgery was re c o m m e n d e d , but due to unrelated medical problems, it was not performed until August 4, 2010. A s of September 16, 2010, the plaintiff was reportedly "doing very well with virtually complete relief o f his preop symptoms." Filing No. 67-5, Stricklett deposition, 24:12-16.. H o w e v e r , as of October 19, 2010, Dr. Simpson testified the plaintiff had not reached m a x i m u m medical improvement, and therefore a functional capacity evaluation to assess plaintiff's p e rm a n e n t impairments had not been preformed. Without this information, Dr. Simpson and, in turn, th e parties' vocational rehabilitation experts, cannot currently assess plaintiff's future work l i m i t a t io n s and ability. Filing No. 67-3, Simpson deposition, 35:12-24; filing no. 67-4, Cordray d e p o s itio n , 14:20-24, 23:10-23; filing no. 67-5, Stricklett deposition, 14:12-16:6); filing no. 86-2. T h e railroad is ready to proceed to trial and to that end, at least ten witnesses are scheduled to travel the week of November 15, 2010 to attend trial in Lincoln. These witnesses would travel fro m as far away as Alliance, Nebraska, Gillette, Wyoming and Charleston, South Carolina. The ra ilro a d asserts it will incur significant expense if the trial is continued. The plaintiff contends the tria l must be continued so the plaintiff can investigate and pursue recovery for injuries caused by d e g e n e ra tiv e spinal injuries, reach maximum medical improvement following his spinal surgeries, a n d obtain a functional capacity evaluation to more accurately assess his permanent limitations. -2- B a s e d on the record before the court, the plaintiff's failure to raise a chronic injury claim does n o t warrant a continuance. Even assuming the plaintiff did not know chronic spinal injury had o c c u rre d until Dr. Simpson was deposed, he identified his problem as "accumulative" in the personal in j u r y report of record, he sought and received chiropractic care for many years, and he was on notice a n d should have investigated potential chronic or cumulative sources of injury before the eve of trial. However, the plaintiff has not fully recovered from his August 2010 surgery, and the d e g re e of his permanent limitations remains unknown. Although the plaintiff should have raised this i s s u e and concern at the pretrial conference, and this failure has caused unnecessary work for both t h e defendant and the court, the extent of plaintiff's impairments goes to the heart of plaintiff's d a m a ge claim. Without such information, neither party can currently assess the magnitude of p la in tiff's damages, including his lost earning capacity and future pain and suffering. While the d e fe n d an t will no doubt incur trial preparation costs and inconvenience if a continuance is granted, o n balance, the potential prejudice to the plaintiff and to the court's interest in reaching a just result b a s e d on the totality of allrelevant facts, outweighs the prejudice to the defendant if this case is c o n tin u e d . T h e continuance granted herein must be limited to the time needed for plaintiff to reach m a x i m u m medical improvement and obtain a functional capacity evaluation, and for both parties to s e c u r e updated opinions and testimony on these issues. This continuance should not be interpreted a n d does not serve to re-open all issues for discovery or expand the issues for trial. IT IS ORDERED: 1) 2) T h e plaintiff's motion to continue, (filing no. 65), is granted. O n or before December 8, 2010, the parties shall file a status report advising the court o f the plaintiff's current medical progression and when this case can be ready for t ri a l . November 8, 2010. B Y THE COURT: s /C h e r y l R. Zwart U n ite d States Magistrate Judge -3-

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