Montes v. Union Pacific Railroad Company

Filing 102

MEMORANDUM AND ORDER on the parties' cross-motions summary judgment 38 and 39 . The plaintiffs motion for summary judgment (Filing No. 38 ) is denied. The defendants motions summary judgment (Filing No. 39 ) is denied. The defendant' ;s motion to strike (Filing No. 77 ) is denied as moot. The plaintiffs motion for leave to supplement his brief (Filing No. 92 ) is granted. The plaintiffs motion for leave to file supplemental exhibits (Filing No. 93 ) is granted. The plaintif fs objections to correspondence to the court (Filing No. 94 and Filing No. 97 ) are overruled. Pursuant to the Order dated December 17, 2011 (Filing No. 91 ), the parties shall have ten (10) days from the date of this order in which to schedule a final pretrial conference. Counsel for the plaintiff shall contact the magistrate judge to schedule the final pretrial conference. Ordered by Chief Judge Joseph F. Bataillon. (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ALFREDO MONTES SR.,
Plaintiff,
v.
UNION PACIFIC RAILROAD
COMPANY, a Delaware corporation,
Defendant.

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8:09CV226

MEMORANDUM AND ORDER

This matter is before the court on the parties’ cross-motions summary judgment,
Filing No. 38 & Filing No. 39.1 This is an action for damages under the Federal Employers’
Liability Act (“FELA”), 45 U.S.C. §§ 51-60. This case arises from injuries the plaintiff
sustained while working for the defendant Union Pacific Railroad Co. (hereinafter, “UP” or
“the Railroad”). The plaintiff alleges that he was injured on October 20, 2007, while walking
on uneven terrain alongside railcars dumping ballast. Specifically, the plaintiff alleges the
defendant failed to exercise ordinary care to provide its employees with a reasonably safe
place to work by breaching its duties to investigate and to institute and implement
reasonably safe methods and procedures for the performance of the work; by failing to
comply with its own rules, including Engineering Track Maintenance Field Manual and

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Several m otions that relate to the cross-m otions for sum m ary judgm ent are also pending:
defendant's m otion to strike the affidavit of Alan Blackwell, Filing No. 77; the plaintiff's m otion for leave to
supplem ent its brief, Filing No. 92; the plaintiff's m otion for leave to subm it exhibits, Filing No. 93; and
plaintiff's objections to correspondence to the court, Filing No. 94 and Filing No. 97. The court did not
consider the affidavit of Alan Blackwell in m aking this decision, so the m otion to strike that affidavit will be
denied as m oot. The defendant did not object to the plaintiff’s subm ission of additional evidence and
argum ent in support of his m otion for sum m ary judgm ent. The plaintiff sought leave to subm it supplem ental
answers to interrogatories. See Filing No. 95, Index of Evid., Ex. 7. The court finds the plaintiff’s m otion to
subm it additional evidence and argum ent should be granted. The court further finds that the plaintiff’s
objections to the defendant’s citations of additional authority should be overruled. Further briefing on the
issues would not have been helpful to the court.

Union Pacific Railroad Engineering Standards; and by failing to comply with Neb. Rev. Stat.
§ 74-919.2 He alleges that he aggravated a pre-existing condition in his right heel and
injured his Achilles tendon as a result of the defendant’s negligence and the violation of
federal regulations, and that the injury is traceable to the specific event of walking on the
loose ballast on the steep shoulder. See Complaint, Filing No. 1.
Both parties have submitted voluminous evidence in support of their respective
positions. See Filing No. 38, Plaintiff’s Motion, Attached Exs. 1-6; Filing No. 95, Plaintiff’s
Index of Evid., Ex. 7; Evid., Filing No. 41, Defendant’s Index of Evid., Exs. 1-7; Filing No.
62, plaintiff’s brief in opposition, attached Exs. 1-22; Filing No. 66, Index of Evid. in
opposition, Exs. 1-3. The plaintiff’s motion for summary judgment is premised on his
contention that undisputed evidence establishes that the Railroad’s track was not in
compliance with federal track safety standards and regulations at the time of the alleged
injury.

This argument is based on regulations governing track safety standards

promulgated by the Secretary of Transportation at 49 C.F.R. Part 213 (“This subpart
prescribes minimum requirements for ballast, crossties, track assembly fittings, and the
physical conditions of rails.”) The plaintiff contends that the violation of the regulation
constitutes negligence per se and seeks a determination, as a matter of law, that the
Railroad was negligent.3

In support of his motion, the plaintiff submits excerpts of the

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That statute provides: “Each railroad in this state shall keep and m aintain the m argins alongside its
tracks where railroad em ployees are required to walk in the course of their duties reasonably free from debris
and vegetation which affect the safety of such em ployees while working.” Neb. Rev. Stat. § 74-919.
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The regulation at issue provides:

Unless it is otherwise structurally supported, all track shall be supported by m aterial which
will-(a) Transm it and distribute the load of the track and railroad rolling
equipm ent to the subgrade;
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deposition of Eric J. Gehringer, UP track maintenance manager, contending that Gehringer
admits that ballast was needed in the area on which the plaintiff was working and that the
track was not in compliance with federal regulations for that reason. See Filing No. 38,
Index of Evid., Ex. 4, Deposition of Eric J. Gehringer (Doc # 38-4, Page ID # 124-31). He
also submits portions of the Railroad’s Engineering Track Maintenance Field Handbook
and Maintenance of Way Rules. Id., Exs. 1 & 5 (Doc # 38-1, Page ID # 105-06; Doc # 385, Page ID # 132-34).
In its cross-motion for summary judgment against the plaintiff, the Railroad argues
that the plaintiff’s FELA claim is precluded by the federal regulations promulgated pursuant
to the Federal Railroad Safety Act (“FRSA”), 49 U.S.C. § 20101.4 Citing the same federal
regulation as the plaintiff, it argues that it has shown compliance with the federal regulation
governing ballast and that the plaintiff’s FELA claim is barred as a matter of law. Also, it
argues that the plaintiff cannot prove that the Railroad provided an unsafe place to work
or that the plaintiff’s injury was medically caused by walking on ballast.
In support of its cross-motion for summary judgment against the plaintiff, the
Railroad submits deposition testimony and affidavits purportedly showing that the ballast
it used for track structures complied with federal regulations, specifically, 49 C.F.R. §
(b) Restrain the track laterally, longitudinally, and vertically under dynam ic
loads im posed by railroad rolling equipm ent and therm al stress exerted by
the rails;
(c) Provide adequate drainage for the track; and
(d) Maintain proper track crosslevel, surface, and alinem ent.
49 C.F.R. § 213.103.

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The Railroad relies on the track safety standards in support of its argum ent that the plaintiff's action
is precluded because the Federal Railroad Safety Act, 49 U.S.C. § 20102 et seq., has effectively precluded
the field of ballast regulation.
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213.103. Filing No. 41, Index of Evid., Ex. 3, Affidavit of Frank Gehringer (Doc # 41-3,
Page ID # 240-45). Also, it submits the affidavit and deposition testimony of a podiatrist,
Dr. Charles Halverson, D.P.M., to show that the plaintiff’s injuries were the result of
cumulative wear and tear and not the result of a specific injury. Filing No. 41, Index of
Evid., Ex. 5, Affidavit of Charles Halverson, D.P.M. (Doc # 41-5, Page ID # 253-54), Ex.
B, Halverson Report (Doc # 41-5, Page ID # 257-61); Ex. 7, Deposition of Charles
Halverson, D.P.M. (Doc # 41-7, Page ID # 275-313). The Railroad argues that the plaintiff
has not presented evidence to controvert Dr. Halverson’s opinion.5
DISCUSSION
A. Law
Summary judgment is appropriate when, viewing the facts and inferences in the light
most favorable to the nonmoving party, “the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material
fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).
The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate
time for discovery and upon motion, 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. v. Catrett, 477 U.S. 317, 322
(1986). “[A] party seeking summary judgment always bears the initial responsibility of
informing the district court of the basis for its motion, and identifying those portions of the
pleadings, depositions, answers to interrogatories, and admissions on file, together with

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This argum ent depends on the exclusion of the testim ony of Scott McMullen, M.D. The defendant’s
m otion in lim ine to exclude Dr. McMullen’s testim ony was denied. See Filing No. 100. defendant’s m otion
in lim ine, which was denied by the court. See Filing No. 100, Mem orandum and Order.
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the affidavits, if any, which it believes demonstrate the absence of a genuine issue of
material fact.” Id. at 323. If the moving party meets the initial burden, the burden then
shifts to the opposing party to produce evidence of the existence of a genuine issue for
trial. Id. at 324.
“The inquiry performed is the threshold inquiry of determining whether there is the
need for a trial—whether, in other words, there are any genuine factual issues that properly
can be resolved only by a finder of fact because they may reasonably be resolved in favor
of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A “genuine"
issue of material fact exists “when there is sufficient evidence favoring the party opposing
the motion for a jury to return a verdict for that party.” Id. at 251-52 (1986) (noting the
inquiry is whether the evidence presents a sufficient disagreement to require submission
to a jury or whether it is so one-sided that one party must prevail as a matter of law). If
“reasonable minds could differ as to the import of the evidence,” summary judgment should
not be granted. Id. at 251.
The evidence must be viewed in the light most favorable to the nonmoving party,
giving the nonmoving party the benefit of all reasonable inferences. Kenney v. Swift
Transp., Inc., 347 F.3d 1041, 1044 (8th Cir. 2003). “In ruling on a motion for summary
judgment, a court must not weigh evidence or make credibility determinations.” Id. “Where
the unresolved issues are primarily legal rather than factual, summary judgment is
particularly appropriate.” Koehn v. Indian Hills Cmty. Coll., 371 F.3d 394, 396 (8th Cir.
2004).
The FELA provides the exclusive remedy for a railroad employee injured as a result
of his employer’s negligence. See, e.g., Wabash R. Co. v. Hayes, 234 U.S. 86, 89 (1914).

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Substantively, FELA actions are governed by federal law. Norfolk Southern Ry. Co. v.
Sorrell, 549 U.S. 158, 165 (2007). The FELA is construed liberally to further its remedial
and humanitarian purpose. Urie v. Thompson, 337 U.S. 163, 181-82 (1949). For example,
relaxed standards apply under the FELA both for causation and for applying the principle
of negligence per se. Nordgren v. Burlington Northern R.R. Co., 101 F.3d 1246, 1249 (8th
Cir. 1996); Sorrell, 549 U.S. at 178 (Ginsburg, J., concurring) (FELA precedent solidly
establishes that the causation standard in FELA actions is more “relaxed” than in tort
litigation generally).
To succeed on an FELA claim, a plaintiff is required to show that, while he was
working for the railroad, he was injured as a result “in whole or in part from the negligence
of any of the officers, agents, or employees of [the railroad], or by reason of any defect or
insufficiency, due to its negligence,” in its equipment. 45 U.S.C. § 51; see Villa v.
Burlington Northern and Santa Fe Railway Co., 397 F.3d 1041, 1044 (8th Cir. 2005).
Success on an FELA negligence claim requires proof of the common-law elements of a
negligence claim: duty, breach, causation, and injury. See Consolidated Rail Corp. v.
Gottshall, 512 U.S. 532, 543–44(1994). “Negligence, for purposes of FELA, exists if
defendants knew or should have known ‘that prevalent standards of conduct were
inadequate to protect petitioner and similarly situated employees.’” Villa, 397 F.3d at 1045
n.4 (quoting Urie v. Thompson, 337 U.S. at 178). Knowledge of inadequacy is a factual
question for the jury. Villa, 397 F.3d at 1045 n. 4.
A prima facie case in an action under the FELA, 45 U.S.C.A. 51 et seq., requires
admissible evidence that defendant’s negligence was a cause of plaintiff’s injury. See
Fletcher v. Union Pacific Railroad Co., 621 F.2d 902 (8th Cir. 1980). Under the FELA, the

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railroad will be liable if its negligence played any part, even the slightest, in producing the
employee’s injury. Rogers v. Missouri Pacific R.R. Co., 352 U.S. 500, 506 (1957); see also
Gottshall, 512 U.S. at 543 (noting that FELA claim should be presented to a jury if the
evidence indicates that “employer negligence played any part, even the slightest” in the
plaintiff's injuries). In an FELA case, the presence of multiple contributing causes will not
preclude a finding of liability against a defendant who has provided a legal cause of a
plaintiff's injury. Villa, 397 F.3d at 1046.
The Federal Railroad Safety Act, 49 U .S.C. § 20101, was enacted in 1970 in order
"to promote safety in every area of railroad operations and reduce railroad-related
accidents and incidents.” 49 U.S.C. § 20101; see Norfolk Southern Railway Co. v.
Shanklin, 529 U.S. 344, 347 (2000). Under the FRSA, the Secretary of Transportation is
authorized to “prescribe regulations and issue orders for every area of railroad safety.”
Shanklin, 529 U.S. at 347. In order to promote national uniformity of railroad safety laws,
the FRSA contains a preemption clause that provides that the states may regulate railroad
safety “until the Secretary of Transportation . . . prescribes a regulation or issues an order
covering the subject matter of the State requirement.” 49 U.S.C. § 20106(a)(1) & (2). To
pre-empt state law, the federal regulation must cover the same subject matter, and not
merely touch upon or relate to that subject matter, “‘pre-emption will lie only if the federal
regulations substantially subsume the subject matter of the relevant state law.’” Shanklin,
529 U.S. at 352 (quoting CSX Transportation, Inc. v. Easterwood, 507 U.S. 658, 664
(1993)); Nickels v. Grand Trunk Western R.R., Inc., 560 F.3d 426, 429 (6th Cir. 2009)
(involving ballast regulations).

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The provision explicitly preempts only State laws, regulations, and orders; it does
not mention other federal safety standards. Nickels, 560 F.3d at 429. However, several
courts have held that “the uniformity demanded by the FRSA ‘can be achieved only if
[federal rail safety regulations] are applied similarly to a FELA plaintiff’s negligence claim
and a non-railroad-employee plaintiff’s state law negligence claim.’” Id. at 430 (quoting
Lane v. R.A. Sims, Jr., Inc., 241 F.3d 439, 443 (5th Cir. 2001); see also Waymire v. Norfolk
and Western Ry Co., 218 F.3d 773, 776 (7th Cir. 2000). Under that theory, a railroademployee plaintiff’s claims “are precluded by the FRSA if they would have been preempted
if brought by a non-employee under state law.” Nickels, 560 F.3d at 430.
The question then becomes “whether [the regulation at issue] covers the subject
matter of the plaintiffs' claims.” Id. at 431. In 49 C.F.R. 213.103, the Secretary of
Transportation “has directed railroads to install ballast sufficient to perform key support
functions under the conditions applicable to the track” and that regulation “determines what
is a reasonable ballast composition and size for a particular track.” Id.
B. Analysis
The court finds that neither party has shown that it is entitled to judgment as a
matter of law. The evidence before the court shows disputed issues of fact on numerous
issues. With respect to the issue of negligence per se, even if that theory were applicable,
the plaintiff has not submitted evidence sufficient for the court to find the Railroad was not
in compliance with federal regulations. The testimony on which the plaintiff relies for that
proposition is equivocal and contradictory. The credibility of the witnesses is also at issue.
The court finds the Railroad’s reliance on the theory of preclusion is misplaced.
First, the Eighth Circuit has not applied state-claim preemption principles to federal

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regulations in the contest of the FELA. Second, even if the theory were appropriate under
Eighth Circuit precedent, the court finds the regulation at issue does not “cover” the
plaintiff’s FELA claim. It is clear that the regulation is directed toward creating a safe
roadbed for trains, not a safe walkway for railroad employees who must inspect the trains.
See, e.g., Grimes v. Norfolk Southern Ry. Co., 116 F. Supp. 2d 995, 1003 (N.D. Ind. 2000).
Compliance with federal regulations governing the size of the ballast is not at issue in the
case. While the ballast may have been appropriate from the perspective of supporting the
train, the issue is whether the Railroad provided the plaintiff a reasonably safe place to
work. Based on the record before the court, the defendant has not shown that it is entitled
to judgment as a matter of law.
The argument that the plaintiff cannot prove causation is connected to its motion to
preclude the testimony of Scott McMullen, M.D. The court has denied that motion,
foreclosing this argument. See Filing No. 100, Memorandum and Order. There are
disputed issues of fact with respect to causation and foreseeability and the resolution of
those issues will involve assessments of credibility, which are within the province of the
jury. The defendant has not shown as a matter of law that it is entitled to judgment. The
court finds there is a genuine issue of material fact on the issues of causation and
foreseeability. Whether or not the Railroad provided the plaintiff with a reasonably safe
place to work is a question of fact for the jury. Accordingly,
IT IS ORDERED:
1. The plaintiff’s motion for summary judgment (Filing No. 38) is denied.
2. The defendant’s motions summary judgment (Filing No. 39) is denied.
3. The defendant's motion to strike (Filing No. 77) is denied as moot.

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4. The plaintiff’s motion for leave to supplement his brief (Filing No. 92) is granted.
5. The plaintiff’s motion for leave to file supplemental exhibits (Filing No. 93) is
granted.
6. The plaintiff’s objections to correspondence to the court (Filing No. 94 and Filing
No. 97) are overruled.
7. Pursuant to the Order dated December 17, 2011 (Filing No. 91), the parties shall
have ten (10) days from the date of this order in which to schedule a final pretrial
conference. Counsel for the plaintiff shall contact the magistrate judge to schedule the
final pretrial conference.
DATED this 15th day of April, 2011.
BY THE COURT:

s/ Joseph F. Bataillon
Chief United States District Judge

*This opinion m ay contain hyperlinks to other docum ents or W eb sites. The U.S. District Court for
the District of Nebraska does not endorse, recom m end, approve, or guarantee any third parties or the services
or products they provide on their W eb sites. Likewise, the court has no agreem ents with any of these third
parties or their W eb sites. The court accepts no responsibility for the availability or functionality of any
hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to som e other site does not affect
the opinion of the court.
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