Lessert v. BNSF Railway Company
Filing
196
ORDER denying 47 Motion for Partial Summary Judgment; granting 104 Motion for Partial Summary Judgment; granting 108 Motion for Partial Summary Judgment; denying 115 Motion for Partial Summary Judgment; denying 129 Motion for Partial Summary Judgment; adopting 179 Report and Recommendation; adopting 180 Report and Recommendation; sustaining in part and overruling in part 185 Objection to Report and Recommendation; sustaining in part and overruling in part 189 Objection to Magistrate Judge Order. Signed by U.S. District Judge Jeffrey L. Viken on 8/5/20. (SB)
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UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
GERALD LESSERT, Special
Administrator of the Estate of RICHARD
CLAYMORE LESSERT, Deceased; and
RICHARD CLAYMORE LESSERT,
CIV. 17-5030-JLV
ORDER
Plaintiffs,
vs.
BNSF RAILWAY COMPANY, a
Corporation,
Defendant.
INTRODUCTION
A train operated by defendant BNSF Railway Company struck and killed
Richard Lessert on January 17, 2017, near Edgemont, South Dakota.1 Plaintiff
Gerald Lessert, as the special administrator of Mr. Lessert’s estate and on behalf
of his surviving family, brings this action under the Federal Employers’ Liability
Act (“FELA”), 45 U.S.C. § 51 et seq., asserting defendant negligently caused Mr.
Lessert’s death. (Docket 1). Now pending before the court are the parties’ four
motions for summary judgment on issues of negligence and defendant’s motion
to exclude certain expert testimony. (Dockets 47, 108, 112, 115 & 129). The
court also ordered the parties to brief whether the cause of Mr. Lessert’s death
can be determined on summary judgment. (Dockets 181, 186 & 187).
1Plaintiff
objects to describing the site of the incident as “near” Edgemont
because “it is undefined[,]” but his own complaint alleges the incident occurred
“at or near Edgemont[.]” (Dockets 1 at ¶ 5 & 138 at ¶ 1).
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The court referred this case to United States Magistrate Judge Daneta
Wollmann for resolution of pretrial motions pursuant 28 U.S.C. § 636(b)(1) and
its standing order of April 2, 2018. (Docket 121). The magistrate judge
concluded in a report and recommendation (“R&R”) that defendant violated
49 C.F.R. § 214.315 by failing to brief Mr. Lessert and his crew on safety
measures when it assigned them to work on a track and was thus negligent per
se. (Docket 179). She further concluded in a separate order that four of
plaintiff’s experts should be excluded because their opinions only concerned
negligence—which would be irrelevant if defendant were negligent per se—but
that plaintiff’s damages expert should be permitted to testify. (Docket 184).
Defendant objects to the R&R and the order. (Dockets 185 & 189). Plaintiff
responded to defendant’s objections but did not file any objections of his own.
The Federal Magistrate Act provides two separate standards of review.
For most pretrial matters, such as a motion to exclude expert opinions, the court
“may reconsider” the magistrate judge’s order “where it has been shown that the
. . . order is clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A). For
dispositive matters, including motions for summary judgment, the court is
required to “make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.”
Id. at § 636(b)(1). The court may “accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate judge.” Id.
For the reasons given below, the court overrules defendant’s objections to
the magistrate judge’s R&R on negligence in part and sustains them in part.
2
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The court finds defendant violated § 214.315 and was negligent per se. The
court further concludes genuine disputes of material fact prevent determining
the issue of causation on summary judgment. The court then largely affirms
the magistrate judge’s order permitting plaintiff’s damages expert to testify.
Finally, the court adopts the magistrate judge’s R&R—to which no party
objected—concerning certain proposed damages. (Docket 180).
I.
Facts
The following factual recitation is drawn from the voluminous record the
parties submitted.2 Where disputed, the court views facts in the light most
favorable to the nonmoving party with respect to an individual issue.3
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88
(1986); see also Thompson-Harbach v. USAA Fed. Sav. Bank, 359 F. Supp. 3d
606, 614 (N.D. Iowa 2019) (“Where a court confronts cross motions for summary
judgment, the court views the record in the light most favorable to plaintiff when
2The
National Transportation Safety Board investigated the incident at
issue in this case and authored a report which made factual findings. Docket
90-4; see also BNSF Railway Roadway Worker Fatalities, Edgemont, S.D., Jan.
17, 2017, available at https://www.ntsb.gov/investigations/AccidentReports/
Pages/RAR1801.aspx. However, “[n]o part” of an NTSB report “may be admitted
into evidence or used in a civil action for damages resulting from a matter
mentioned in the report.” 49 U.S.C. § 1154(b). The court accordingly does not
rely on the NTSB report in making these factual findings.
3The
magistrate judge applied an incorrect standard when she declined to
draw inferences in favor of any party because of the cross-motions. (Docket 179
at p. 2 n.1). Because the court applies the correct standard in its de novo
review, the error was harmless. See infra Section II.C.
3
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considering defendant’s motion, and the court views the record in the light most
favorable to defendant when considering plaintiff’s motion.”).
On January 17, 2017, Mr. Lessert, Doug Schmitz and Stanley Mitchell
were all BNSF maintenance of way workers. (Dockets 49 at ¶ 9 & 110 at ¶¶ 6-8).
As the name suggests, maintenance of way workers are responsible for
maintaining the railway track for train use, including by cleaning snow and ice
out of the tracks.4 (Docket 173-9 at p. 7). For federal regulatory purposes, the
three men were “roadway workers.” (Docket 110 at ¶¶ 9-11). Mr. Lessert was
the foreman of the three-person maintenance of way crew. (Docket 131 at ¶ 20).
BNSF intended to move a train from a main track onto the Deadwood wye
on January 17 to facilitate testing of train communication equipment. (Docket
117 at ¶ 3). A wye is an intersection of three tracks used to turn or store trains.
The third leg of the Deadwood wye—the portion of the wye separate from the
main track forming the other two legs—was often used to park railcars.5
(Docket 49 at ¶ 2). Trains are directed from the main track onto the third leg of
4Cleaning
tracks is not solely the responsibility of maintenance of way.
Train crews are also responsible for cleaning snow and ice when necessary.
(Docket 173-9 at pp. 7-8).
5Plaintiff
objects to “the connotation” that, because railcars were often
parked on the wye, snow and ice could not accumulate on the track, but does not
dispute defendant’s asserted fact. (Docket 174 at ¶ 2).
4
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the wye using a device called a switch. (Docket 117 at ¶ 2). Snow and ice can
obstruct a switch and impede its use.6 Id. at ¶ 3.
Dennis Stirmel was the “foreman in charge” on January 17 for the
Edgemont region. (Docket 153-1 at pp. 3-4). He was “in charge of lining out
duties[.]” Id. at p. 4. In his deposition, Mr. Stirmel testified he was
“[d]elegating the duties that were assigned that day to all the work groups” and
“letting them know what the plan was.” Id. at p. 5.
However, Mr. Stirmel’s ordinary job was as a track inspector. Id. at p. 2.
Chuck Oleson was the roadmaster for the region. (Docket 173-22 at p. 3). He
ordinarily would have “delegate[d] things that [were] going on” and held a
morning planning call. Id. at p. 5. Mr. Oleson was in Scottsbluff, Nebraska, on
January 17, leading to Mr. Stirmel’s role as foreman in charge. Id. at p. 3. On
January 16, Mr. Oleson had told Mr. Stirmel “they were going to be pulling those
cars out of the Deadwood wye, and to make sure to have Edgemont up there and
work with the trainmaster.” Id. at p. 7. Mr. Lessert’s crew—operating out of
Edgemont—was responsible for cleaning switches in the area. Id.
6Plaintiff
asserts “[i]t is not logically possible for a switch to be both
obstructed and to function properly” and argues whether a switch encrusted
with ice and snow requires maintenance is a material factual dispute for trial.
(Docket 138 at ¶ 10). Because the court finds defendant was negligent per se on
other grounds, see infra Section II.D.4, this dispute is not material.
5
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At 7:30 a.m., Mr. Stirmel had a phone call with Mr. Lessert and his work
crew.7 Id. at p. 6. He described the purpose of the call as “to make sure [the
crew] were aware” about the use of the Deadwood wye and “to have them . . .
communicate with the trainmaster to find out just exactly what kind of help from
maintenance of way that they were going to need.” Id. Mr. Stirmel knew there
were train cars in the wye that “had been in there for a quite a while[,]” which led
him to conclude that the switch “had not been thrown or cleaned since first
snowfall[.]” Id. at p. 7. However, Mr. Stirmel did not know the details for the
use of the wye—“which direction the train was coming in, which direction the
train was going out,” etc.—so he directed Mr. Lessert to contact the trainmaster
“to figure out what needed to be done.” Id. at pp. 7-8. Mr. Lessert’s crew
confirmed to Mr. Stirmel “they would get ahold of Jim Korecky, trainmaster, and
find out what needed to be done.” Id. at p. 8.
Rodney Huber, a track inspector, was also on the call. Id. Mr. Huber
testified they discussed “that the trainmaster and the road foreman needed
somebody to come clean the Deadwood wye switch[.]” (Docket 153-9 at p. 5).
They did not discuss who would clean the switch. Id. at p. 6. It was assumed
Mr. Lessert and his crew would clean the switch because they were responsible
for that section of track. Id. at pp. 6-7. Mr. Stirmel agreed with Mr. Huber’s
description of the call as “assign[ing]” the task of “clean[ing] snow and ice out of
the wye switch” to Mr. Lessert’s crew. (Docket 173-22 at p. 6).
7Mr.
Stirmel agreed with plaintiff’s counsel’s description of the call as
“assign[ing] [Mr. Lessert’s] crew to clean out the wye switch[.]” (Docket 173-22
at pp. 8-9).
6
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Mr. Stirmel did not conduct a safety briefing during the 7:30 a.m. call.
(Docket 173-22 at pp. 8-9). He did not discuss
the means by which the maintenance of way crew would have
on-track protection[,] . . . anything about on-track safety
procedures[,] . . . anything about movements on adjacent track . . .
[or] anything about the nature of the work to be performed or the
characteristics of the location there where they would be cleaning
snow and ice out of the[] switches[.]
Id. Nor did Mr. Stirmel designate a roadway worker in charge for Mr. Lessert’s
crew, although he was aware each of the three crew members were qualified for
the position. Id. at p. 9. Mr. Stirmel did not consider the 7:30 a.m. call a job
safety briefing. Id. He referred to it as a “job task briefing[,]” which he
described as “merely a way of [him] communicating with another work group as
to the work that needed to be done.” Id. at pp. 9-10.
Mr. Stirmel testified he could not conduct a job safety briefing correctly
without personally assessing conditions on site. Id. at p. 10. He was located in
Newcastle, Wyoming, during the morning call, approximately 60 miles from
Edgemont. Id. He believed “the foreman or employee in charge” was
responsible for assessing safety conditions “when they get to that job location.”
Id. The crew would have then had the job safety briefing “on location when they
found out what they needed to do.” Id. at p. 11.
The trainmaster was James Korecky. (Docket 173-9 at p. 4). Mr.
Korecky was working to move railcars off of the Deadwood wye on January 17.
Id. at pp. 4-5. Mr. Korecky and Shad Sowers, a BNSF foreman, were checking
crossings—where roads cross the railway tracks—around the wye. (Docket
7
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149-5 at p. 3). One particular crossing was frozen solid. Id. Mr. Korecky and
Mr. Sowers “contacted maintenance of way” to advise they “need[ed] some help
on this crossing[.]” Id. Mr. Korecky was also concerned about the state of the
switch at issue here.8 (Docket 188-2 at pp. 2-3). It was “iced in.” (Docket
50-4 at p. 4). Randy Dixon, a brakeman, had worked for 30 to 40 minutes to
clean the switch of ice and snow and render it operable earlier that morning. Id.
at p. 3. There had been “a few freeze and thaw cycles” leading up to January 17,
meaning that snow had melted and refrozen into ice on the switch. (Docket
173-9 at p. 10). This made cleaning the switch more difficult. Id.
The maintenance of way crew arrived at the crossing while Mr. Korecky
was there. (Docket 188-2 at p. 2). He did not know the crew’s “assigned
responsibility” but recalled giving Mr. Lessert “a briefing, a rundown on what
[they] were doing, what [they] were out there to accomplish that day.” Id. Mr.
Korecky did know the crew “had come out to assist [them]” with “issues [they’d]
been having” with blocked crossings and switches. Id. It was not Mr.
Korecky’s intention to direct the maintenance of way crew to clean the switch,
but he did “point[] out a problem, and [the crew] said they were going to take a
look at it[.]” Id. at p. 3. In his view, “cleaning ice out of switches” was
“standard work[.]” Id. He viewed telling the maintenance of way crew about
the switch as “a matter of killing the time until the front end loader could show
8Defendant
asserts Mr. Korecky was primarily concerned with “clearing
grade crossings (not switches)[.]” (Docket 185 at p. 4) (emphasis in original).
This contention ignores Mr. Korecky’s testimony about the frozen switch. See
Docket 188-2 at pp. 2-3 (discussing difficulty of clearing switch).
8
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up out there because [they] realized what [they] were doing with shovels was a
waste of time if [they] were going to have heavy power equipment there shortly, so
it was just conversation.” Id.
Although Mr. Mitchell was part of the same work crew as Mr. Lessert and
Mr. Schmitz, he was not physically present with both of them during the entire
morning of January 17. (Docket 139-7 at pp. 10-11). He was transporting a
front end loader to the job site. Id. In total, he was outside the presence of Mr.
Lessert and Mr. Schmitz for about an hour and a half that morning. Id. Mr.
Mitchell does not know what Mr. Lessert and Mr. Schmitz discussed during that
time period, including whether they discussed safety measures or communicated
with a BNSF dispatcher. Id. at pp. 10-11.
According to Mr. Sowers, the three members of the work crew conducted
“their maintenance of way briefing” when Mr. Mitchell arrived with the loader.
(Docket 149-5 at p. 3). Mr. Mitchell testified that the crew talked in a pickup
truck. (Docket 50-6 at pp. 3-4). They agreed to use a lookout as their on-track
protection, concluding the method was “appropriate, adequate, and safe” given
the distance they were able to see down the tracks (the “sight distance”).
(Docket 139-7 at p. 3). No one on the crew called the dispatcher to request
“exclusive track authority” or “track and time”—methods by which the
dispatcher can halt all train traffic on the section of track occupied by workers.
Id.; see also Docket 49 at ¶ 25. Mr. Mitchell did not expect that cleaning the
switch would take more than four or five minutes. (Docket 139-7 at p. 2).
9
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Mr. Mitchell testified that Mr. Lessert was the foreman of the crew. Id.
He agreed with defense counsel that Mr. Lessert, “as the foreman, was
technically the employee in charge” of the crew, “the same thing as a road worker
in charge[.]” Id. at p. 6. Mr. Lessert did not state “in the form of a briefing” that
the crew would use a lookout for on-track safety. Id. He did not “provide a
briefing . . . on where the lookout needed to be positioned or . . . where [the crew]
needed to go in the event that [they] needed to exit the tracks.” (Docket 188-3 at
p. 7). Nor did he designate any crew member as a lookout in Mr. Mitchell’s
presence. (Docket 139-7 at p. 6).
However, Mr. Schmitz completed an on-track safety form identifying
himself as the lookout. Id.; see also Docket 111-2 (completed form). On the
form, Mr. Schmitz identified the “place of safety”—where “employees . . . can go
when a train approaches”—as the truck. Id. He also wrote he would give a
verbal warning to other crew members about an approaching train. Id. Mr.
Schmitz stated he would not do any work on the switch while acting as a lookout,
but also told the crew they would “take turns.” (Dockets 139-7 at p. 6 & 188-3
at p. 7). The crew never rotated the lookout duty. (Docket 139-7 at p. 12).
Mr. Mitchell saw Mr. Schmitz carry a shovel to the switch.9 Id. at p. 6. Mr.
Lessert was carrying a blower. Id.
BNSF engineer Tyler Bilbruck was operating a train on the main track.
(Docket 49 at ¶ 10). When his train came around a corner, he saw “the tail end
9Plaintiff
disputes the implication that Mr. Schmitz “was engaged in work
other than his lookout duties.” (Docket 138 at ¶ 31).
10
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of a maintenance truck” and “two gentlemen in the middle of the track[.]”
(Docket 50-1 at p. 5). One of the men had “a backpack leaf blower.” Id. at p. 8.
Mr. Bilbruck did not see a third man. Id. A still shot taken from train video
footage shows two men on the tracks and a third a short distance away. (Docket
50-14). The train struck and killed Mr. Lessert and Mr. Schmitz. (Docket 49 at
¶ 10). Mr. Mitchell survived. Id.
II.
Negligence & Causation
A.
Legal Standards
1.
Summary judgment
Under Federal Rule of Civil Procedure 56(a), a movant is entitled to
summary judgment if the movant can “show that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). Once the moving party meets its burden, the nonmoving
party may not rest on the allegations or denials in the pleadings, but rather must
produce affirmative evidence setting forth specific facts showing that a genuine
issue of material fact exists.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256
(1986). Only disputes over facts which might affect the outcome of the case
under the governing substantive law will properly preclude summary judgment.
Id. at 248. “[T]he mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue of material fact.”
Id. at 247-48 (emphasis in original).
11
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If a dispute about a material fact is genuine, that is, if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party, then
summary judgment is not appropriate.
Id.
However, the moving party is
entitled to judgment as a matter of law if the nonmoving party failed to “make a
sufficient showing on an essential element of her case with respect to which she
has the burden of proof.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
In such a case, “there can be ‘no genuine issue as to any material fact,’ since a
complete failure of proof concerning an essential element of the nonmoving
party’s case necessarily renders all other facts immaterial.”
Id. at 323.
In determining whether summary judgment should issue, the facts and
inferences from those facts must be viewed in the light most favorable to the
nonmoving party. Matsushita, 475 U.S. at 587-88 (1986). The key 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.” Anderson, 477 U.S. at 251-52.
2.
FELA
“Under FELA, conduct is deemed negligent per se if it violates a statute or
regulation and if it ‘contributes in fact to the death or injury in suit, without
regard to whether the injury flowing from the breach was the injury the statute
sought to prevent.’ ” Morant v. Long Island R.R., 66 F.3d 518, 523 (2d Cir.
1995) (quoting Kernan v. Am. Dredging Co., 355 U.S. 426, 433 (1958)). “Under
a negligence per se theory, if a plaintiff proves . . . a statutory violation . . . he
need not prove the traditional negligence elements of foreseeability, duty and
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breach, but he is still required to prove causation.” Cowden v. BNSF Ry. Co.,
975 F. Supp. 2d 1005, 1026 (E.D. Mo. 2013) (internal quotation omitted). “[A]
defendant railroad caused or contributed to a railroad worker’s injury if the
railroad’s negligence played a part—no matter how small—in bringing about the
injury.” CSX Transp., Inc. v. McBride, 564 U.S. 685, 705 (2011) (internal
quotations omitted). However, “[i]f the plaintiff’s negligence was the sole cause,
then the [regulatory] violation . . . could not have contributed in whole or in part
to the injury.” Beimert v. Burlington N., Inc., 726 F.2d 412, 414 (8th Cir. 1984)
(emphasis in original).
B.
Defendant’s Objections
Defendant raises four factual and four legal objections to the R&R. As
summarized and reordered by the court, the factual objections assert:
1.
Defendant did not assign Mr. Lessert and his crew to foul a
track on the morning of January 17. (Docket 185 at
pp. 16-18).
2.
Mr. Lessert was the roadway worker in charge during the
incident. Id. at pp. 20-24.
3.
Mr. Stirmel was not “higher in the chain of command than Mr.
Lessert.” Id. at pp. 24-26.
4.
Mr. Schmitz was not the lookout during the incident. Id. at
pp. 26-28.
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The legal objections argue:
1.
49 C.F.R. § 214.315 does not require a railroad to conduct a
safety briefing when an employee is assigned to foul a track.10
Id. at pp. 8-14.
2.
Section 214.315 does not require separate safety briefings at
the time an employee is assigned to foul a track and when the
employee is on site at the track. Id. at pp. 14-15.
3.
Mr. Lessert was required to provide the § 214.315 safety
briefing. Id. at pp. 18-20.
4.
Defendant did not violate § 214.315 by failing to give a safety
briefing during a conference call on the morning of January
17. Id. at pp. 15-16.
The court evaluates each objection in turn.
C.
Factual objections
1.
Assignment of Mr. Lessert and crew
The magistrate judge found that Mr. Stirmel assigned Mr. Lessert and his
work crew to foul a track by cleaning the Deadwood wye switch during the 7:30
a.m. call. (Docket 179 at pp. 4-6). Defendant objects to this finding, arguing
that Mr. Stirmel was “merely relaying a message from the trainmaster, Mr.
Korecky, to inform crews of the situation and expectations for the day.” (Docket
185 at p. 16). It asserts “Mr. Lessert was asked to assist clearing a crossing that
morning, not a switch, and that [he] alone decided to have his crew clear the
Deadwood wye switch.” Id. at p. 17. Viewing the evidence in the light most
favorable to defendant, the court overrules the objection. No reasonable jury
10Fouling
a track is railroad terminology for occupying it. Federal
regulations define fouling track as “the placement of an individual . . . in such
proximity to a track that the individual . . . could be struck by a moving train[.]”
49 C.F.R. § 214.7.
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could conclude anything other than that Mr. Stirmel assigned Mr. Lessert to
clean the Deadwood wye switch.
The question of when Mr. Lessert was assigned to foul a track is material
because § 214.315 requires a railroad to conduct a safety briefing when it
“assigns a duty to a roadway worker that calls for that employee to foul a track[.]”
49 C.F.R. § 214.315(a); see also infra Section II.D.1. “Assign” is not defined in
the regulations, so the court gives the word its “ordinary, contemporary, common
meaning[.]” Hennepin Cty. v. Fed. Nat. Morg. Ass’n., 742 F.3d 818, 821 (8th
Cir. 2014) (internal quotation omitted). Merriam-Webster defines assign, as
relevant here, as “to appoint to a post or duty” or “to appoint as a duty or task[.]”
Assign, Merriam-Webster.com Dictionary.11 Defendant does not offer an
alternative definition.
On January 16, Mr. Oleson instructed Mr. Stirmel “to make sure to have
[Mr. Lessert’s crew] up there [at the Deadwood wye] and work with the
trainmaster.” (Docket 173-22 at p. 7). Mr. Stirmel described his role on
January 17 as “lining out” duties or “delegating the duties that were assigned” to
the various work crews, including Mr. Lessert’s. (Docket 153-1 at pp. 4-5).
He also testified he considered the 7:30 a.m. call to be a “job task briefing[.]”
(Docket 173-22 at p. 9). During the call, Mr. Stirmel informed Mr. Lessert about
the work taking place at the Deadwood wye and instructed him to contact the
trainmaster for details about what help was needed at the wye. Mr. Huber, the
11Available
at https://www.merriam-webster.com/dictionary/assign (last
visited July 16, 2020).
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only other surviving participant in the 7:30 call, understood Mr. Stirmel to be
directing Mr. Lessert’s crew to clean the Deadwood wye. Mr. Korecky
understood that Mr. Lessert’s crew had come out to the wye to assist with
cleaning crosses and switches. In fact, Mr. Sowers testified that he and Mr.
Korecky had asked for a maintenance of way crew to be assigned to assist with
clearing ice and snow.
This testimony leaves no genuine dispute that Mr. Stirmel assigned Mr.
Lessert and his crew to work on the Deadwood wye on the morning of January
17. Every participant in the morning’s work at the wye understood that Mr.
Lessert was assigned to assist with cleaning crosses and switches. Mr. Oleson,
the roadmaster in charge, specifically directed Mr. Stirmel to assign Mr. Lessert’s
crew to work at the Deadwood wye in his absence. Mr. Stirmel himself
considered the call a job task briefing—an obvious description of assigning
workers to complete a job. And, of course, Mr. Lessert and his crew reported to
the Deadwood wye to clean it.
Defendant’s arguments against this straightforward testimony are
unpersuasive. It first attempts to characterize Mr. Stirmel’s “role [as] not one of
giving assignments but [as] one of disseminating general information about what
was going on that day.” (Docket 185 at p. 16). It is true, as defendant points
out, that Mr. Stirmel did not know specifics of how the work at the Deadwood wye
would unfold. But the record establishes beyond a doubt that he intended Mr.
Lessert to report to the Deadwood wye to clean track. That Mr. Stirmel did not
intend to direct how Mr. Lessert cleaned the track does not mean he did not
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assign him to clean the track. Moreover, defendant’s characterization belies Mr.
Stirmel’s own testimony that the 7:30 a.m. call was a job task briefing to discuss
needed work at the Deadwood wye.
To the extent defendant argues Mr. Stirmel was merely relaying previously
made assignments, see Docket 185 at p. 25, this argument ignores the transitive
nature of the verb “assign.” A task cannot be assigned unless the assignee
knows he or she has been instructed to accomplish it. Even though Mr. Oleson
directed Mr. Stirmel to assign the duty to Mr. Lessert and his crew before the
morning call, no English speaker would say the task had been “assigned” while
only Mr. Oleson and Mr. Stirmel knew about it. It does not matter that Mr.
Stirmel was relaying an assignment decision already made by Mr. Oleson. The
task was assigned when Mr. Lessert learned about it during the morning call.
Defendant next argues Mr. Lessert “was asked”—by whom, one might
wonder—to clean a crossing, not a switch. (Docket 185 at p. 17). In
defendant’s view, Mr. Lessert “alone decided to have his crew clear the Deadwood
wye switch.” Id. Mr. Stirmel, acting on the direction of Mr. Oleson, assigned
Mr. Lessert to assist in preparing the Deadwood wye for use. And once Mr.
Lessert arrived at the crossing, Mr. Korecky brought the problem with the frozen
switch to Mr. Lessert’s attention. Mr. Stirmel had intended that Mr. Lessert
receive further direction on his assignment on site, which is precisely what
happened. The assignment necessarily encompassed ensuring the switch was
functional, in addition to any frozen crossings.
17
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Defendant’s attempt to parse the assignment into granular components
has little support in the record. Nor does it make sense—what use would it have
been to assign the maintenance of way crew to clear a single crossing, when the
Deadwood wye switch, an integral component of the wye, may have been
encrusted with ice and snow? In any event, as discussed below, see infra
Section II.D.1, the § 214.315 safety briefing is required when an employee is
assigned to foul a track—not when an employee is assigned to clean a switch. It
is immaterial whether Mr. Lessert was assigned to clean a crossing or a switch
because cleaning either requires fouling a track.
The court finds there is no genuine dispute that Mr. Stirmel assigned Mr.
Lessert and his crew to clean the Deadwood wye switch. Defendant’s objection
is overruled.
2.
Roadway worker in charge
Although she noted the parties’ extensive dispute over whether Mr. Lessert
was the roadway worker in charge for purposes of § 214.315, the magistrate
judge did not determine who was the roadway worker in charge. (Docket 179 at
pp. 3-4, 9 n.9 & 15 n.11). She concluded that resolving the dispute was
unnecessary. Id. at p. 15. Defendant objects, arguing that the record shows
no genuine dispute that Mr. Lessert was the roadway worker in charge. (Docket
185 at pp. 20-24).
Like the magistrate judge, the court declines to settle this immaterial
dispute. As discussed below, see infra Section II.D.4, the court concludes
defendant was negligent per se by virtue of failing to provide a safety briefing
18
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during the 7:30 a.m. call at which Mr. Stirmel assigned Mr. Lessert to foul a
track. This finding does not depend on the identity of the roadway worker in
charge. Hence, because the roadway worker in charge dispute does not “affect
the outcome of the lawsuit[,]” it is not material. Williams v. Medalist Golf, Inc.,
910 F.3d 1041, 1045 (8th Cir. 2018).
Defendant’s objection is overruled.
3.
Chain of command
The magistrate judge noted Mr. Stirmel was above Mr. Lessert in the
“chain of command” as part of her analysis finding he assigned the maintenance
of way crew to foul a track. (Docket 179 at p. 16). Defendant objects both to
the relevance of information concerning an employee’s place in a chain of
command in determining when a job assignment is made and to the factual
conclusion that Mr. Stirmel was above Mr. Lessert in BNSF’s chain of command.
(Docket 185 at pp. 24-26). Because the magistrate judge established this fact
on summary judgment as part of accepting plaintiff’s assignment argument, the
court views the record on this point in the light most favorable to defendant, the
non-moving party. The court sustains the objection in part and overrules it in
part.
First, the court rejects defendant’s argument that the chain of command is
irrelevant in determining when a job assignment has been made. Defendant
contends “[t]here is no language in the regulation or any guidance indicating that
briefings must be given by one employee who is higher in the chain of command
to another who is lower.” Id. at p. 25. But the question of who must give a
19
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briefing does not answer the distinct question of who has the power to assign a
job. The power to assign implies superiority. In determining when a job
assignment has been made, whether the purported assigner is superior in rank
to the assignee is not necessarily dispositive, but it may well be a relevant factor.
However, the court agrees with defendant that the record does not
establish beyond a genuine dispute that Mr. Stirmel was Mr. Lessert’s superior.
Mr. Stirmel agreed at his deposition that Mr. Lessert was “below [him] in the
organizational flowchart that day.” (Docket 153-1 at p. 6) (emphasis added).
Defendant attempts to discredit this testimony as given in response to a leading
question, which the court finds unpersuasive. (Docket 185 at p. 26 n.5). But
given that Mr. Stirmel was filling in for Mr. Oleson on January 17, the court
cannot conclude that he was ordinarily Mr. Lessert’s superior. Defendant cites
the testimony of its expert, John Bainter, that Mr. Stirmel and Mr. Lessert were
both under the authority of Mr. Oleson, the roadmaster. (Docket 188-4 at p. 2).
The record thus establishes a few possibilities: Mr. Stirmel and Mr. Lessert may
ordinarily have been at the same organizational level; Mr. Stirmel may have been
Mr. Lessert’s superior for the day only due to Mr. Oleson’s absence; or Mr.
Stirmel and Mr. Lessert may ordinarily have been at different organizational
levels in a manner not disclosed to the court. Because the court cannot say
which of these options is correct, summary judgment as to Mr. Stirmel’s position
in the BNSF hierarchy vis a vis Mr. Lessert is not appropriate.
The court overrules defendant’s objection in part and sustains it in part.
The R&R is modified to conform with the court’s findings. However, this finding
20
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does not affect the court’s earlier conclusion that Mr. Stirmel assigned Mr.
Lessert and his crew to foul a track. See supra Section II.C.1.
4.
Lookout
The magistrate judge found that Mr. Schmitz was the lookout during the
work on the Deadwood wye switch. (Docket 179 at pp. 8-10). Defendant
objects, arguing Mr. Lessert failed to designate a lookout. (Docket 185 at
pp. 26-28). The court, viewing the record on this matter in the light most
favorable to defendant, overrules the objection.
Mr. Mitchell testified that Mr. Schmitz was the lookout. (Docket 139-7 at
p. 10). He also expressly denied that Mr. Lessert was the lookout. Id. at p. 12
(“[Mr. Lessert] was not the lookout; he had the blower.”). More importantly, Mr.
Schmitz identified himself as the lookout in a form completed at the time when
the lookout decision was made. (Docket 111-2). Mr. Schmitz wrote his name
in the space labeled “Name of Lone Worker/Lookout.” Id. At bottom, the
form—the only piece of documentary evidence—and the testimony of the sole
surviving witness agree Mr. Schmitz was the lookout. Defendant has no
substantial evidence to the contrary.
Defendant first points to Mr. Mitchell’s testimony that he did not hear Mr.
Lessert designate Mr. Schmitz to be the lookout. (Docket 185 at pp. 26-27).
Simply because Mr. Mitchell did not hear Mr. Lessert designate Mr. Schmitz as
the lookout, however, does not mean it did not happen. Mr. Schmitz evidently
21
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considered himself to have been so designated when he completed the lookout
form.12
Defendant next relies on testimony from Donna Behrens, the coroner who
reported to the incident scene, that Mr. Mitchell initially identified Mr. Lessert as
the lookout. Id. at p. 27. This incident was Ms. Behrens’ first. (Docket 188-9
at p. 2). She described herself as “[un]familiar with railroad components.” Id.
On scene, Ms. Behrens spoke to Mr. Mitchell before she “gathered . . . the
bodies.” Id. Mr. Mitchell “appeared to be in shock.” Id. However, he “said
that Mr. Lessert was the lookout, and that was about it.” Mr. Mitchell denied
Ms. Behrens’ account during his deposition. (Docket 139-7 at pp. 7 & 12) (“I
don’t believe I told her that[.]”).
If this were simply a matter of conflicting deposition testimony, the court
would submit the question of who served as lookout to the jury. But the lookout
form Mr. Schmitz completed is dispositive. Mr. Schmitz identified himself as the
lookout on the form mere minutes before the incident.13 And there is ample
reason to doubt Ms. Behrens’ testimony. This was her first incident as a
coroner, and she was unfamiliar with the railroad. Mr. Mitchell—who had just
sustained the traumatic loss of two coworkers—was in shock. No reasonable
12Defendant’s
reliance on regulations and internal rules requiring all
members of a maintenance of way crew to be informed of the designation of a
lookout is misplaced. (Docket 185 at pp. 26-27). The question at hand is not
whether Mr. Lessert designated the lookout in a manner compliant with
regulations, but whether Mr. Schmitz served as the lookout.
13No
party contests the veracity of the form.
22
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jury could ignore the lookout form in favor of such shaky evidence that Mr.
Lessert served as the lookout.
Lastly, defendant argues Mr. Schmitz could not have been the lookout
because he carried a shovel, indicating he intended to help clear the switch.
(Docket 185 at pp. 27-28). Mr. Schmitz may well have intended to work on the
switch while serving as the lookout. But evidence he was carrying a shovel does
not prove he was not the lookout—at best, it shows he may have been a bad
lookout.14 In any event, Mr. Mitchell testified each member of the crew carried a
tool suitable for clearing the switch. Under defendant’s theory, no member of
the crew could have been the lookout, contradicting both Mr. Mitchell’s
testimony and the lookout form. The court declines to view as controlling Mr.
Schmitz’s decision to carry a shovel to the switch.
The court finds Mr. Schmitz served as lookout while the maintenance of
way crew worked on the Deadwood wye switch. Defendant’s objection is
overruled.
D.
Legal objections
Defendant’s legal objections all concern the requirements of § 214.315,
part of the Federal Railroad Administration’s (“FRA”) Roadway Worker Protection
regulations authorized by the Federal Railroad Safety Act (“FRSA”). The
magistrate judge concluded § 214.315 required defendant to provide a safety
14A
regulation requires a lookout not to perform other work. 49 C.F.R.
§ 214.329(b). But the court need not—and indeed, could not on the present
record—determine if Mr. Schmitz complied with governing regulations while
serving as a lookout. The record is clear he was the lookout; whether he was a
good lookout is a question for the jury.
23
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briefing when it assigned Mr. Lessert to clean the switch, which required fouling
the track. (Docket 179 at pp. 12-16).
She further noted § 214.315 appeared to
require two safety briefings: the first at the time of assignment and the second at
the time the employees foul a track. Id. at p. 15. Finally, she rejected
defendant’s theory that Mr. Lessert was responsible for conducting the
assignment safety briefing. Id. at p. 16. Relying on her factual finding that Mr.
Stirmel assigned Mr. Lessert and his crew to clean the switch, see supra Section
II.C.1, the magistrate judge ultimately found defendant violated § 214.315
because there is no dispute that no safety briefing was conducted during the
7:30 a.m. conference call. Defendant objects to each of these conclusions. The
court overrules each objection.
1.
Assignment safety briefing
Defendant argues § 214.315 did not require it to conduct a job safety
briefing when it assigned Mr. Lessert to foul a track. (Docket 185 at pp. 8-14).
Because defendant’s position cannot be squared with the plain language of the
regulation, the court overrules its objection.
Section 214.315 states: “When an employer assigns a duty to a roadway
worker that calls for that employee to foul a track, the employer shall provide the
employee with an on-track safety job briefing[.]” 49 C.F.R. § 214.315(a).
Employer is defined as “a railroad . . . that directly engages or compensates
individuals to perform any of the duties defined” by regulation. Id. at § 214.7.
The regulation is straightforward. When BNSF assigns an employee to foul a
24
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track, it must provide a safety briefing. The most natural interpretation of the
language is that the safety briefing must occur at the time of the assignment.
Defendant’s only textual argument against the court’s reading is that the
word “when” “does not explicitly equate to ‘at the time of.’ ” (Docket 185 at
p. 10). The court rejects this bald assertion. The word “when” generally links
events temporally. Merriam-Webster defines “when” as “at what time,” “at or
during which time” or “at or during the time that.” When,
Merriam-Webster.com Dictionary.15 “In everyday English, ‘when’ clearly
connotes immediacy.” Martinez-Done v. McConnell, 56 F. Supp. 3d 535, 545
(S.D.N.Y. 2014) (internal quotation omitted).16 And given that the purpose of
the regulation is to “prevent accidents and casualties caused by moving railroad
cars . . . striking roadway workers[,]” the court is especially reluctant to cast
aside the plain meaning of the adverbial clause. 49 C.F.R. § 214.301.
Uncoupling the safety briefing from the assignment of a task could encourage a
railroad to leave safety considerations out of the assignment process.
15Available
at https://www.merriam-webster.com/dictionary/when (last
visited July 17, 2020).
16Martinez-Done
interpreted an immigration statute requiring the Attorney
General to arrest and detain certain deportable aliens pending a decision on
removal “when the alien is released” from state custody. 8 U.S.C. § 1226(c). In
reviewing that statute, the Supreme Court rejected an interpretation requiring
immediate arrest due to a presumption that “a statutory rule that officials shall
act within a specified time does not by itself preclude action later.” Nielsen v.
Preap, 139 S. Ct. 954, 967 (2019) (internal quotation omitted) (emphasis added).
That presumption does not govern here. This case does not concern official
action, but instead a regulation governing railroad safety. The court, relying on
the ordinary association of “when” with immediate action, concludes the FRA
intended the safety briefing to accompany assignment.
25
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Because the regulation is unambiguous, the court need not, as defendant
urges, look to its “history, guidance and enforcement to determine the correct
meaning.” (Docket 185 at p. 10). Nevertheless, defendant’s reliance on these
extratextual sources is unavailing. Defendant starts its argument by asking the
court to apply Auer17 deference to the FRA’s interpretation of § 214.315. Id.
The court declines this invitation.
Auer required federal courts to give “controlling” effect to an agency’s
interpretation of its own regulations “unless plainly erroneous or inconsistent
with the regulation.” 519 U.S. at 461 (internal quotation omitted). The
Supreme Court has since sharply limited the boundaries of Auer deference.18
Kisor v. Wilkie, 139 S. Ct. 2400, 2414-18 (2019). Now, the court must only
defer to the FRA if: the regulation “is genuinely ambiguous” after “exhaust[ing] all
the traditional tools of construction[;]” if the FRA’s “reading is reasonable[;]” if the
“regulatory interpretation [was] one actually made by the [FRA;]” if the FRA’s
“interpretation . . . in some way implicate[s] its substantive expertise[;]” and if the
interpretation reflects the FRA’s “fair and considered judgment[.]” Id. at
2414-17 (internal quotations omitted). Here, Auer deference is inappropriate.
As noted above, the regulation is not ambiguous.
In any event, the FRA interpretation defendant would have the court defer
to hardly contradicts the court’s reading of § 214.315. In 1996, the FRA
17Auer
v. Robbins, 519 U.S. 452 (1997).
18Defendant
filed its objections long after the Supreme Court decided
Kisor, making its plea for unlimited Auer deference particularly puzzling.
26
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amended § 214.315. Roadway Worker Protection, 61 Fed. Reg. 65,959 (Dec. 16,
1996). It described § 214.315 as requiring that “[e]mployees must be notified
and acknowledge understanding of the on-track safety methods they are to use,
prior to commencing duties on or near the track.” Id. at 65,968. Section
214.351(a), the paragraph requiring an assignment safety briefing, “establish[es]
the duty of notification by the employer[.]” Id. It “essentially require[s] a job
briefing to inform all concerned of on-track safety methods at the beginning of
each work period.” Id. (emphasis added). As for § 214.315(d), the paragraph
mandating that the roadway worker in charge inform other crew members about
the designated safety procedures, the FRA wrote that it requires the roadway
worker in charge to “conduct an on-track safety briefing prior to the beginning of
work on or near the track. This briefing might also fulfill the requirements of
paragraph (a)[.]” Id. (emphasis added).
The FRA’s 1996 views do not contradict the court’s statutory
interpretation. Paragraph (a) mandates a safety briefing when a job is assigned
that requires an employee to foul a track, but does not control the time of
assignment. A railroad may assign a job when an employee’s workday
commences, as it did here and as the FRA contemplated would be the most
typical practice, or it could assign a job to employees on site. In the latter case,
the briefing requirements of paragraphs (a) and (d) could be satisfied with a
single, on-site briefing at the time of assignment.
Defendant next asserts the FRA enforces § 214.315 consistent with its
preferred interpretation by approving its internal rules. (Docket 185 at
27
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pp. 11-12). BNSF rules “do not require that a briefing be conducted at the time
the assignment is first given.” Id. at p. 11; see also (Docket 133-2 at p. 90)
(requiring BNSF employees to “[c]onduct a job safety briefing before any roadway
worker or equipment fouls a track.”). But BNSF rules, even when approved by
the FRA, cannot displace § 214.315(a)’s unambiguous requirement that a safety
briefing take place when an employee is assigned to foul a track. Defendant
does not explain why the court should defer to its internal policies.
Finally, defendant raises policy concerns. It argues requiring a safety
briefing at the time of assignment is impractical because it often assigns tasks to
multiple work crews over large physical distances during a single call. (Docket
185 at pp. 12-14). BNSF managers cannot, in defendant’s view, give a proper
safety briefing at the time of assignment because they lack awareness of on-site
conditions relevant to safety considerations.19 Id. These practical questions
are no doubt important to defendant, but they cannot overcome the clear
language of the regulation requiring a safety briefing at the time of assignment.
If defendant believes the plain language of the regulation is unreasonable or
absurd, “the remedy lies with the law making authority, and not with the courts.”
Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575 (1982) (quoting Crooks v.
Harrelson, 282 U.S. 55, 60 (1930)); see also C.I.R. v. Asphalt Prods. Co., Inc., 482
U.S. 117, 121 (1987) (“Judicial perception that a particular result would be
19As
plaintiff points out, however, Mr. Stirmel testified he “can suggest
things to look out for” with regard to on-track safety during a job assignment
briefing. (Docket 191-1 at p. 9). Mr. Stirmel then agreed with plaintiff’s
counsel that he could discuss all of the factors required for a § 214.315(a) safety
briefing at the time of assignment. Id. at pp. 9-10.
28
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unreasonable may enter into the construction of ambiguous provisions, but
cannot justify disregard of what Congress has plainly and intentionally
provided.”).
In any event, the FRA clearly anticipated the difficulty of predicting
on-track conditions. While the assignment safety briefing requires some
prediction of conditions on site, see 49 C.F.R. § 214.315(a)(4) (requiring
“discussion” of the “characteristics of the work location”), the regulation also
provides for an on-site briefing. Id. at § 214.315(d). The on-site briefing
provision contemplates “change during the work period” to “on-track safety
procedures[.]” Id. Thus, a roadway worker in charge is empowered to adapt
the crew’s safety procedures to changing conditions on site and disseminate that
information through a second briefing. Requiring a safety briefing at the time a
job is assigned can hardly be so “unreasonable and nonsensical” as to require
ignoring § 214.315(a)’s plain meaning when the FRA addressed the supposedly
impractical result in a separate paragraph. (Docket 185 at p. 14).
The court finds § 214.315(a) requires a railroad to provide a safety briefing
when it assigns an employee to foul a track—that is, at the time the assignment
is made. Defendant’s objection is overruled.
2.
Separate safety briefings
Defendant’s second objection concerns the interplay between paragraphs
(a) and (d) of § 214.315. The magistrate judge wrote that § 214.315
sets forth two procedures for job safety briefing: the first safety
briefing is conducted by the employer at the time the work is
29
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assigned, and the second is to be conducted by the roadway worker
in charge at the time and location of where the track is to be fouled.
(Docket 179 at p. 15). Defendant asks the court to reject this interpretation.
(Docket 185 at pp. 14-15). The court sustains the objection.
Section 214.315(a), which requires a railroad to give a safety briefing at the
time it assigns an employee to foul a track, is discussed in detail above. See
supra Section II.D.1. Section 214.315(d), in contrast, requires an on-track
safety briefing.
Before any member of a roadway work group fouls a track,
the roadway worker in charge . . . shall inform each roadway worker
of the on-track safety procedures to be used and followed during the
performance of the work at that time and location. Each roadway
worker shall again be so informed at any time the on-track safety
procedures change during the work period. Such information shall
be given to all roadway workers affected before the change is
effective, except in cases of emergency.
49 C.F.R. § 214.315(d).
In many, perhaps most, cases, the safety briefings under paragraphs (a)
and (d) will take place at separate times and will be given by separate employees.
Paragraph (a) contemplates a safety briefing given by the employee assigning the
task at the time the task is assigned, while paragraph (d) concerns the duty of the
roadway worker in charge to inform other crew members of the designated safety
procedures prior to fouling a track. Paragraph (d) requires the roadway worker
in charge to complete a new briefing if on-site conditions necessitate a change in
safety procedures, indicating that briefing will usually occur on site. The FRA
takes a similar view. It explained in its 1996 amendment that the paragraph (d)
30
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briefing should occur “prior to the beginning of work on or near the track.”
61 Fed. Reg. at 65,968 (emphasis added).
However, the plain terms of the regulation do not mandate two separate
briefings. If a task is assigned while a crew is on site, the briefings under
paragraphs (a) and (d) could easily be accomplished together. The FRA
contemplated this possibility by noting the paragraph (d) briefing may satisfy
paragraph (a)’s requirements as well in an appropriate case. Id.
The court doubts the magistrate judge intended her remark as a generally
applicable legal conclusion, but defendant is correct that the interpretation will
not apply in all cases. The court sustains defendant’s objection. The R&R is
modified to reflect this ruling.
3.
Mr. Lessert & the § 214.315(a) safety briefing
Defendant objects to the magistrate judge’s conclusion that Mr. Lessert
was not an “employer” responsible for conducting the § 214.315(a) safety briefing
at the time he was assigned to foul a track. (Docket 185 at pp. 18-20). The
court overrules the objection.
As a corporate entity, defendant argues, it can only carry out tasks
through its employees. Id. at p. 19. It contends Mr. Lessert was designated to
provide the assignment job safety briefing. Id. In defendant’s view, the
magistrate judge legally erred by rejecting the possibility that Mr. Lessert could
have assigned himself to clean the switch. Id. at pp. 19-20.
As a factual matter, there is no support for the idea that Mr. Lessert
assigned himself to clean the switch. Mr. Stirmel assigned the task. See supra
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Section II.C.1. And as a legal matter, the court shares the magistrate judge’s
skepticism that defendant can expect an employee to assign himself to foul a
track and provide himself with the § 214.315(a) safety briefing. The FRA
intended § 214.315 to establish “the duty of notification [of safety plans] by the
employer and the reciprocal duty of communicating acknowledgment by the
employee.” 61 Fed. Reg. at 65,968 (emphasis added). This would make little
sense if the employer and employee were the same person.20
Because Mr. Lessert did not assign himself to foul a track, he cannot have
been the employer required to provide a § 214.315(a) briefing. The court
overrules defendant’s objection.
4.
Violation of § 214.315(a)
Defendant’s final legal objection is to the magistrate judge’s ultimate
conclusion that it violated § 214.315(a) by failing to provide a safety briefing
during the 7:30 a.m. call where Mr. Stirmel assigned Mr. Lessert and his crew to
foul a track. (Docket 185 at pp. 15-16). The court determined above that Mr.
Stirmel made the assignment during the morning call and that § 214.315(a)
requires a safety briefing at the time of assignment. See supra Sections II.C.1,
II.D.1. It is undisputed Mr. Stirmel did not provide a safety briefing during the
20Section
214.315(c) would also be heavily impacted by defendant’s
interpretative theory. That paragraph requires a railroad to designate a
roadway worker in charge for a work crew. The FRA considered this section
“vital to the success of any on-track safety program” and emphasized that “this
formal designation [must] be communicated to and understood by all” crew
members. 61 Fed. Reg. at 65,968. If Mr. Lessert was in fact the roadway
worker in charge and if, accepting defendant’s view, he was an employer who
assigned himself to foul a track and was responsible for briefing himself on safety
measures, the FRA’s intention would be short circuited.
32
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call. Accordingly, defendant violated § 214.315(a). Having proven defendant
was negligent per se by virtue of a regulatory violation, plaintiff need not make
any further showing as to negligence. Walden v. Ill. Cent. Gulf R.R., 975 F.2d
361, 364 (7th Cir. 1992) (“In a FELA action, the violation of a statute or
regulation . . . automatically constitutes breach of the employer’s duty and
negligence per se[.]”). The court overrules the objection.
E.
Causation
On the magistrate judge’s recommendation, the court gave notice it would
consider granting summary judgment on the matter of causation and ordered
briefing. (Docket 181). Plaintiff proved defendant was negligent per se. See
supra Section II.D.4. However, plaintiff must still show that the regulatory
violation was a causal factor in his death. Cowden, 975 F. Supp. 2d at 1026.
Because plaintiff seeks to establish this element of his claim on summary
judgment, the court views the evidence in the light most favorable to defendant,
the non-moving party.
FELA allows railway workers to sue for “injury or death resulting in whole
or in part from the negligence” of a railroad. 45 U.S.C. § 51. If the regulatory
violation “played a part—no matter how small—in bringing about” Mr. Lessert’s
death, causation has been established. CSX Transp., 564 U.S. at 705. But
“judges . . . have no warrant to submit . . . to the jury” “far out ‘but for’ scenarios”
of causation. Id. at 704. And “[p]roof that the employee’s own negligence was
the sole cause of his or her injury is a valid defense because it eliminates the
possibility that the regulatory violation contributed in whole or part to the
33
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injury.” Walden, 975 F.2d at 364 (emphasis in original). In evaluating a FELA
causation argument, the court is cognizant that “Congress vested the power of
decision in these actions exclusively in the jury in all but the infrequent cases
where fair-minded jurors cannot honestly differ whether fault of the employer
played any part in the employee’s injury.” Rogers v. Mo. Pac. R. Co., 352 U.S.
500, 510 (1957); see also Walden, 975 F.2d at 364 (“When the facts reasonably
support a conclusion for either party, the decision is exclusively for the jury to
make.”).
Plaintiff primarily argues “a proper [safety] briefing would have resulted in
the selection of another form of on-track safety” protection. (Docket 186 at p. 5).
Defendant attacks this contention as speculative and argues there is no evidence
Mr. Stirmel would have disallowed the use of a lookout as on-track safety
protection. (Docket 187 at pp. 7-10). Defendant also argues Mr. Lessert would
not have used a different form of on-track safety correctly and that a jury could
reasonably conclude Mr. Lessert was the sole cause of the incident. Id. at
pp. 11-13, 14-18.
The court finds a genuine dispute exists as to whether Mr. Stirmel would
have permitted the use of a lookout.21 If Mr. Stirmel had directed or approved
21Defendant
argues Mr. Stirmel could not have directed the use of any
particular form of on-track protection because he was not the roadway worker in
charge. (Docket 187 at pp. 8-9). The court is unpersuaded. When an
employer assigns an employee to foul a track, it must provide “[i]nformation on
the means by which on-track safety is to be provided” and “[i]nstruction on each
on-track safety procedure to be followed[.]” 49 C.F.R. §§ 214.315(a)(1), (2).
This implies the employer may designate a specific form of on-track protection
during the assignment safety briefing.
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the use of a lookout, in defendant’s view, the incident would have occurred
anyway. But a jury could find that the lack of a safety briefing did not cause the
incident because, even if Mr. Stirmel had given the briefing, he would not have
directed the use of a non-lookout form of protection.22 Given that Mr. Lessert
and his crew ultimately decided to use a lookout, it would be reasonable to infer
that, had the safety briefing taken place, Mr. Lessert would have requested to use
a lookout.
Moreover, jury questions also exist about the role Mr. Lessert and Mr.
Schmitz played in the incident. Mr. Mitchell testified that the three crew
members briefly discussed safety before beginning work and decided to use a
lookout. They did not request track exclusivity or any other form of protection.
The parties dispute whether the use of a lookout was appropriate under the
conditions on site. (Dockets 187 at pp. 15-16 & 192 at pp. 7-12). A jury could
find Mr. Lessert was the roadway worker in charge and failed to choose the safest
form of on-track protection, leading to the incident. Jurors could also conclude
Mr. Lessert failed to ensure Mr. Schmitz properly carried out his duties as
lookout based on Mr. Mitchell’s testimony that all three crew members carried
22Plaintiff
contends any properly conducted safety briefing would have
necessarily resulted in the use of another form of on-track protection. (Docket
192 at pp. 7-12). His reasoning relies on a complicated causal chain assuming
Mr. Stirmel was intimately familiar both with federal regulations and exact sight
distances on site. Id. The court cannot endorse plaintiff’s theory as a matter of
law. Mr. Stirmel testified both that he had never read § 214.315 before his
deposition and that he could not accurately predict conditions on site. (Docket
173-22 at pp. 10-11).
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work tools to the switch. In these factual scenarios, a jury could reasonably
determine Mr. Lessert’s own negligence was the sole cause of the incident.
After drawing inferences in defendant’s favor and keeping in mind the
Supreme Court’s admonition that causation is typically a jury matter in FELA
cases, the court concludes summary judgment as to causation is inappropriate.
III.
Plaintiff’s Experts
Defendant moved to exclude five of plaintiff’s experts under Federal Rule of
Evidence 702 and Daubert.23 (Docket 112). The magistrate judge excluded
three experts because their proposed testimony pertained only to negligence,
which she resolved in plaintiff’s favor. (Docket 184 at pp. 3-4). She excluded a
fourth expert, Dr. Mariusz Ziejewski, because his proposed testimony related to
either negligence—no longer an issue in the case—or the question of whether Mr.
Lessert survived the initial train strike for long enough to incur pain and
suffering, a question she also resolved on summary judgment in defendant’s
favor. Id. at pp. 4-5. Finally, she permitted plaintiff’s damages expert,
economist Dr. Stan Smith, to testify regarding Mr. Lessert’s widow and children,
but not his unadopted stepdaughter. Id. at pp. 6-10. Defendant objects to
allowing Dr. Smith to testify at all.24 (Docket 189). Reviewing the magistrate
judge’s order for clear error, see 28 U.S.C. § 636(b)(1)(A), the court sustains one
23Daubert
24Plaintiff
v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
did not object to the magistrate judge’s Daubert ruling. The
court adopts the order as it pertains to plaintiff’s other experts.
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objection in part and overrules the remainder. The order is affirmed as modified
by this opinion.
A.
Legal Standard
Federal Rule of Evidence 702 permits expert witnesses to testify if:
(a)
the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue;
(b)
the testimony is based on sufficient facts or data;
(c)
the testimony is the product of reliable principles and
methods; and
(d)
the expert has reliably applied the principles and methods to
the facts of the case.
Fed. R. Evid. 702. The United States Court of Appeals for the Eighth Circuit has
“boiled down” Rule 702’s “screening requirement” into a test:
First, evidence based on scientific, technical, or other specialized
knowledge must be useful to the finder of fact in deciding the
ultimate issue of fact. This is the basic rule of relevancy. Second,
the proposed witness must be qualified to assist the finder of fact.
Third, the proposed evidence must be reliable or trustworthy in an
evidentiary sense, so that, if the finder of fact accepts it as true, it
provides the assistance the finder of fact requires.
Johnson v. Mead Johnson & Co., LLC, 754 F.3d 557, 561 (8th Cir. 2014)
(quoting Polski v. Quigley Corp., 538 F.3d 836, 839 (8th Cir. 2008)). “[T]he
proponent of the expert testimony” bears the burden to show its admissibility “by
a preponderance of the evidence[.]” Marmo v. Tyson Fresh Meats, Inc., 457 F.3d
748, 757-58 (8th Cir. 2006).
In evaluating the reliability of proposed expert testimony using a particular
theory or technique, the court can consider “whether it can be (and has been)
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tested[,]” whether it “has been subjected to peer review and publication[,]” its
“known or potential rate of error” and its “general acceptance[.]” Daubert, 509
U.S. at 593-94. The court need only consider these factors to the extent they
are “reasonable measures of reliability[.]” Kumho Tire Co. Ltd. v. Carmichael,
526 U.S. 137, 153 (1999). The Rule 702 inquiry is “a flexible one.” Daubert,
509 U.S. at 594. Its focus “must be solely on principles and methodology, not
on the conclusions that they generate.” Id. at 595.
The court “must exclude expert testimony if it is so fundamentally
unreliable that it can offer no assistance to the jury, otherwise, the factual basis
of the testimony goes to the weight of the evidence.” United States v. Two Elk,
536 F.3d 890, 903 (8th Cir. 2008) (quoting Larson v. Kempker, 414 F.3d 936,
940-41 (8th Cir. 2005)) (emphasis removed). “Courts should resolve doubts
regarding the usefulness of an expert’s testimony in favor of admissibility.”
Marmo, 457 F.3d at 758. “Vigorous cross-examination, presentation of
contrary evidence, and careful instruction on the burden of proof are the
traditional and appropriate means of attacking shaky but admissible evidence.”
Daubert, 509 U.S. at 596.
“However, a court should not admit opinion evidence
that is connected to existing data only by the ipse dixit of the expert. When the
analytical gap between the data and proffered opinion is too great, the opinion
must be excluded.” Marmo, 457 F.3d at 758 (internal quotation and citation
omitted).
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B.
Defendant’s Objections
Defendant raises nine objections to the magistrate judge’s order. As
summarized by the court, these objections argue:
1.
The magistrate judge “did not conduct a sufficient Daubert
analysis” and “did not scrutinize Dr. Smith’s individual
opinions.” (Docket 189 at pp. 4-6).
2.
Dr. Smith’s damages opinion includes costs for loss of
consortium and costs incurred by Mr. Lessert’s adult
children, which are not recoverable in FELA cases as a matter
of law. Id. at pp. 7-9.
3.
Dr. Smith relied on flawed studies in determining the loss of
household services caused by Mr. Lessert’s death. Id. at
pp. 9-11.
4.
Dr. Smith assumed the value of Mr. Lessert’s household
services to his family members is equivalent to professionals.
Id. at pp. 11-12.
5.
Dr. Smith inflated his household services damages estimate
by double-counting hours of services provided. Id. at
pp. 12-14.
6.
Dr. Smith improperly added an “agency fee” to his household
services damages estimate. Id. at pp. 14-15.
7.
Dr. Smith used a “flawed” methodology to calculate Mr.
Lessert’s personal consumption spending. Id. at pp. 15-16.
8.
Dr. Smith made an arbitrary assumption as to Mr. Lessert’s
tax rate in calculating damages. Id. at pp. 16-17.
9.
Dr. Smith made an arbitrary assumption as to Mr. Lessert’s
retirement date in calculating damages. Id. at pp. 17-19.
As plaintiff points out, defendant did not raise most of these arguments
before the magistrate judge. (Docket 194 at pp. 4-5). In fact, by the court’s
count, defendant only specifically raised two of the arguments it now asserts: its
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critique of Dr. Smith’s retirement age assumption and his use of professional
wages to estimate the loss of household services. (Docket 113 at pp. 26-29).
When a magistrate judge is hearing a matter pursuant to his or her
limited authority to make a recommended disposition, a claimant
must present all his claims squarely to the magistrate judge, that is,
the first adversarial forum, to preserve them for review. . . . “A party
cannot, in his objections to an R&R, raise arguments that were not
clearly presented to the magistrate judge.”
Ridenour v. Boehringer Ingleheim Pharms., Inc., 679 F.3d 1062, 1067 (8th Cir.
2012) (quoting Hammann v. 1-800-Ideas.com, Inc., 455 F. Supp. 2d 942, 947-48
(D. Minn. 2006)).
The court would be well-justified in finding defendant waived its untimely
objections. Nevertheless, the court will evaluate the objections out of concern
for judicial economy. Defendant could simply raise these arguments again in a
motion in limine or at trial, at which point the court would be obligated to decide
the matter. Resolving the objections before trial will facilitate the orderly
progression of this case.
C.
Analysis
The court begins by addressing defendant’s reliance on a number of other
federal cases excluding Dr. Smith as an expert. Dr. Smith often opines on
“hedonic damages” in litigation, which are damages that “attempt to compensate
a victim for the loss of the pleasure of being alive[.]” Families Advocate, LLC v.
Sanford Clinic N., No. 16-CV-114, 2019 WL 1442162, at *1 (D.N.D. March 31,
2019). Quite a few federal courts have refused to permit Dr. Smith to testify
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concerning his method for calculating hedonic damages. Smith v. Jenkins, 732
F.3d 51, 66 (1st Cir. 2013) (collecting cases).
Here, however, plaintiff expressly disclaims any claim for hedonic
damages. (Docket 194 at p. 23 n.15) (“[T]here is no claim for hedonic damages
and no economic evaluation of hedonic damages is proffered by Plaintiff or Dr.
Smith.”). The court therefore does not view the authority defendant cites as
indicative of a uniform condemnation of Dr. Smith’s testimony in the federal
courts, as its objections insinuate.
1.
Magistrate judge’s Daubert analysis
Defendant first asserts the magistrate judge “did not hold plaintiff to his
burden” of proving the admissibility of Dr. Smith’s proposed testimony. (Docket
189 at p. 5). It argues she failed to apply the Rule 702 factors and insufficiently
scrutinized his report. Id. at pp. 4-6. The court overrules this objection.
Defendant devoted approximately five pages of its 33-page brief before the
magistrate judge to Dr. Smith’s household services opinions. (Docket 113 at
pp. 25-30). One of those pages is merely copied images of Dr. Smith’s
deposition. Id. at p. 27. And as the magistrate judge noted, the parties filed
over 400 pages of record materials concerning the Daubert motion. The court
can hardly fault the magistrate judge for not divining arguments defendant did
not make and combing the record with a fine-toothed comb to address them.
In any event, the magistrate judge cited the correct legal standards
governing a Daubert challenge. (Docket 184 at pp. 2-3, 7-8). She began by
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finding Dr. Smith qualified to give his opinions.25 Id. at pp. 8-9. She then
considered defendant’s arguments concerning the basis for Dr. Smith’s
retirement and household services assumptions and determined they were
challenges to the weight of his opinions, rather than to the admissibility. Id. at
pp. 9-10. This conclusion was not error, clear or otherwise.
The court rejects defendant’s assertion that the magistrate judge failed to
“provid[e] specific findings or discussion on the record[.]” (Docket 189 at p. 5).
As demonstrated by its affirmance on de novo review, the court finds the
magistrate judge correctly resolved defendant’s Daubert challenge.
2.
Loss of consortium & costs for adult children
Defendant argues plaintiff cannot recover damages for loss of Mr. Lessert’s
consortium or for loss of the services Mr. Lessert would have provided to his
children after they became adults as a matter of law. In its view, Dr. Smith
includes such damages in his calculation, rendering his opinion unreliable.
Plaintiff responds that the contested damages are available as a matter of law.
(Docket 194 at pp. 5-8). The court agrees with plaintiff and overrules the
objection.
In calculating the loss of Mr. Lessert’s “household/family services[,]” Dr.
Smith included the value of his “advice, counsel, and guidance services” and
“accompaniment services, or care and attention services[.]” (Docket 144-9 at
pp. 6, 30-41). In his view, these services are distinct from “consortium, intimate
25No
party challenges this conclusion and the court likewise finds Dr.
Smith qualified to testify.
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relations, love, and affection” and “do[] not require any particular physical work
activity or intimacy” but are similar to “what can be provided by a hired home
health aide or an adult sitter.” Id. at p. 6 (internal quotations omitted).
“In a wrongful-death action under the FELA, the measure of recovery is
‘the damages that flow from the deprivation of the pecuniary benefits which the
beneficiaries might have reasonably received.’ ” Norfolk & W. Ry. Co. v. Liepelt,
444 U.S. 490, 493 (1980) (quoting Michigan Cent. R. Co. v. Vreeland, 227 U.S.
59, 70 (1913)) (internal alterations omitted).
A pecuniary loss or damage must be one which can be measured by
some standard. . . . Nevertheless, the word as judicially adopted is
not so narrow as to exclude damages for the loss of services of the
husband, wife, or child, and, when the beneficiary is a child, for the
loss of that care, counsel, training, and education which it might,
under the evidence, have reasonably received from the parent, and
which can only be supplied by the service of another for
compensation.
Vreeland, 227 U.S. at 71; see also Norfolk & W. R. Co. v. Holbrook, 235 U.S. 625,
629 (1915) (“It was proper, therefore, to charge that the jury might take into
consideration the care, attention, instruction, training, advice, and guidance
which the evidence showed [the decedent] reasonably might have been expected
to give his children during their minority, and to include the pecuniary value
thereof in the damages assessed.”). However, “[t]he loss of society and
companionship, and of the acts of society which originate in the relation and are
not in the nature of services, are not capable of being measured by any material
standard.” Vreeland, 227 U.S. at 73. Looking to Vreeland, courts have
generally concluded that loss of consortium claims are not cognizable under
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FELA. See Vigil v. Union Pac. R.R. Co., No. 16-cv-160, 2016 WL 10538999, at
*3 (D.N.M. 2016) (collecting cases).
The fighting question here thus concerns the nature of the care and
attention services included in Dr. Smith’s damages calculation. If the services
have a pecuniary value susceptible of objective measurement, plaintiff may
recover their cost in damages under Vreeland and Holbrook. But if the services
are merely the “loss of society and companionship . . . not in the nature of
services” which are “not capable of being measured by any material standard[,]”
their cost is unrecoverable as a prohibited loss of consortium claim.26 Vreeland,
227 U.S. at 73.
The court finds the damages permissible. Dr. Smith was able to measure
the monetary value of the care and attention services by considering the
prevailing wage of workers engaged in childcare, nursing, home health care and
personal care, adjusted for South Dakota’s economic conditions. (Docket 144-9
at pp. 9-10). He factored these costs into his estimate of the total value of Mr.
Lessert’s services to his family. Id. at pp. 9-11. The damages are “capable of
measurement by some pecuniary standard” because they can be estimated using
26The
tort of loss of consortium is an inexact fit for the “loss of society and
companionship” disapproved of in Vreeland. 227 U.S. at 73. The Second
Restatement of Torts defines loss of consortium as “loss of the society and
services of the [injured] spouse, including impairment of capacity for sexual
intercourse, and for reasonable expense incurred by the [uninjured] spouse in
providing medical treatment.” Restatement of Torts (Second) § 693(a) (1977);
see also Norfolk & W. Ry. Co. v. Ayers, 538 U.S. 135, 148 (2003) (looking to
Second Restatement of Torts to define damages in FELA case). But Vreeland
clearly permits FELA plaintiffs in a wrongful-death action to seek damages for
lost services, which would seem to otherwise be encompassed by a generic loss of
consortium action.
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the cost Mr. Lessert’s family would have had to pay to obtain the services on the
private market. Vreeland, 227 U.S. at 74. Indeed, Vreeland itself
contemplated this method of measuring damages. Id. at 71 (FELA does not
“exclude damages . . . when the beneficiary is a child, for the loss of that care,
counsel, training, and education which it might, under the evidence, have
reasonably received from the parent, and which can only be supplied by the
service of another for compensation.”). Because Mr. Lessert’s care and
attention services can be translated into dollars and cents by a jury on an
objective standard, plaintiff may recover those costs. It follows that Dr. Smith’s
expert opinion cannot be unreliable simply for providing a possible conversion
factor.
The court next considers whether Dr. Smith may include the value of Mr.
Lessert’s services to his children after they attained adulthood in his damages
calculation. Dr. Smith estimated Mr. Lessert provided 25 hours of services per
week to his children through age 22 and 15 hours per week thereafter. (Docket
144-9 at p. 9). He calculated the value of Mr. Lessert’s services to the children
through the year 2060, at which point one child would be 50 and the other 54.
Id. at pp. 37 & 40. It appears the children are now 10 and 14. Id.
The extent to which Mr. Lessert’s children could have expected to receive
his services after they reach adulthood is a jury question. The cases defendant
cites in support of its proposed rule limiting recovery to the costs for services
which would have been provided during the children’s minority merely confirm
the factual nature of the matter. In Chicago, Burlington & Quincy R.R. Co. v.
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Kelley, the Eighth Circuit held a district court should have instructed a FELA
jury that the plaintiff was not entitled to recover for the pecuniary loss to the
decedent’s children after they reached adulthood. 74 F.2d 80, 85 (8th Cir.
1934). The court concluded “[t]here was no evidence from which the jury could
have found any expectation of support for the children after majority.” Id. And
in Thompson v. Camp, the United States Court of Appeals for the Sixth Circuit
concluded that “[i]n the absence of evidence that an adult child is either
dependent upon or had any reasonable ground for expecting any pecuniary
benefit from a continuance of the decedent's life, a recovery on behalf of such
child is excluded.” 163 F.2d 396, 403 (6th Cir. 1947).
Modern cases confirm that recovery in a FELA case for loss of services to
an adult child is fact-dependent.27 And this principle flows generally from the
key point the Supreme Court set forth in its FELA damages cases: “damages
should be equivalent to compensation for the deprivation of the reasonable
expectation of pecuniary benefits that would have resulted from the continued
life of the deceased.” Cheseapeake & Ohio Ry. Co. v. Kelly, 241 U.S. 485, 489
(1916) (citing Vreeland, 227 U.S. at 70-71). If plaintiff can show Mr. Lessert’s
27See,
e.g., Monheim v. Union R.R. Co., 996 F. Supp. 2d 354, 371 (W.D.
Penn. 2014) (“An adult child may recover pecuniary damages for periods of time
after he or she reaches the age of majority if there is evidence sufficient to prove
special circumstances, such as a poor health, permanent physical infirmity, or
limited mental abilities.”); Davis v. CSX Transp., Inc., No. 10CV74, 2012 WL
71362 at *2 (N.D. W. Va. Jan. 10, 2012) (“An adult child of the decedent may also
recover pecuniary damages after the age of majority if there is evidence
introduced to show such damages.”); Kornblum v. CSX Transp., Inc., 03-CV-57,
2005 WL 1241862, at *2 (S.D. Ind., May 24, 2005) (same).
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adult children would have received services from him after becoming adults, the
cost of those services is recoverable.
The only question before the court now is whether such damages are
available under FELA. They clearly are. The scope of the damages is not
presently at issue. The court finds Dr. Smith’s opinion is not unreliable
because he calculated post-majority damages for Mr. Lessert’s children.
Defendant’s objection is overruled.
3.
Loss of household services studies
Defendant next attacks two of the studies Dr. Smith relied on to support
his methodology for calculating the household services Mr. Lessert provided to
his family.28 (Docket 189 at pp. 9-11). It argues the methodology is not
generally accepted in the economic field, pointing to the arguments of its own
expert, Dr. Thomas Ireland. Id. at p. 9. Defendant also criticizes Dr. Smith’s
citation of an article written by an attorney who represents FELA plaintiffs. Id.
at p. 10. The court does not find Dr. Smith’s methodology unreliable.
Dr. Smith interviewed Mr. Lessert’s widow and sister to determine the
extent and types of services he provided to the family. (Docket 144-9 at pp. 6-9).
Based on those interviews, he concluded Mr. Lessert provided 35 hours per week
of services to his wife and 25 hours per week to his children. Id. at p. 9. He
further concluded the services included, among others, mechanical work,
28Defendant
also asserts Dr. Smith’s methodology has been rejected by two
federal courts. (Docket 189 at pp. 10-11) (citing Mercado v. Ahmed, 974 F.2d
863, 871 (7th Cir. 1992); Kurncz v. Honda N. Am., 166 F.R.D. 386 (W.D. Mich.
1996)). Both cases concerned Dr. Smith’s calculation of hedonic damages,
which are not at issue in this case. See supra Section III.C.
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housekeeping, childcare, accounting, counseling, teaching and driving. Id. at
pp. 9-10. Dr. Smith then looked to federal Bureau of Labor statistics to
determine the mean wage of workers providing those services in the private
market, adjusted the wage for South Dakota’s labor costs, and added an “agency
fee” to account for non-wage costs a consumer pays to obtain the services of a
freelance worker. Id. at pp. 9-11. In total, he calculated Mr. Lessert’s services
to his family were worth $16.30 per hour as of 2017. Id. at p. 9.
The two studies defendant attacks are: “Household Services: Toward a
More Comprehensive Measure” by Dr. Frank Tintari and “Maximizing Recovery
in FELA Wrongful Death Actions” by attorney William Jungbauer. (Docket
144-9 at pp. 6 & 15). These articles support Dr. Smith’s view that “a complete
analysis of all services performed by family members includes much, much more
than the physical housekeeping chores.” Id. at p. 15.
Defendant asserts plaintiff failed to provide any proof that Dr. Tintari’s
“position has been accepted by forensic economists.” (Docket 189 at p. 9). It
cites criticism of Dr. Tintari’s work by its own expert, Dr. Ireland. Id. But
“[g]eneral acceptance is not a necessary precondition to the admissibility of
[expert] evidence[.]”29 United States v. Rodriguez, 581 F.3d 775, 794 (8th Cir.
2009) (citing Daubert, 509 U.S. at 597). Here, the methodology Dr. Smith uses
was already approved, in broad strokes, by the Supreme Court in Vreeland. 227
U.S. at 71, 73. Attacks on the particular costs or formulas Dr. Smith used in
29Defendant’s
citation to a pre-Daubert case for the proposition that an
“expert consensus” is necessary before a court may admit expert testimony is
unpersuasive. (Docket 189 at p. 10) (citing Mercado, 974 F.2d at 871).
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his estimate affect its weight, not its admissibility, and may be addressed on
cross-examination. And in any event, the cited criticism from Dr. Ireland—that
“an economist cannot reliably quantify inestimable damages for companionship
and loss of society”—merely restates defendant’s position that Dr. Smith is
attempting to smuggle a prohibited loss of consortium claim into this case.
(Docket 189 at p. 9). The court rejected that argument above. See supra
Section III.C.2.
Defendant next attacks Dr. Smith’s citation of an article written by an
attorney who represents FELA plaintiffs. (Docket 189 at p. 10). It is true Dr.
Smith appears to have inaccurately described Mr. Jungbauer as an economist,
although the court notes no party states whether Mr. Jungbauer’s co-author,
Mark Odegard, is an economist. (Docket 144-9 at p. 15). In any event, the
article is part of a larger compilation titled “Assessing Family Loss in Wrongful
Death Litigation: The Special Roles of Lost Services and Personal Consumption.”
Id. According to Dr. Ireland’s CV, available on his academic website, he wrote
the book in which the article appeared.30 Given that the supposedly biased
article appeared in a book written by defendant’s own expert, the court cannot
conclude Dr. Smith’s citation of this article is indicative of any unreliability,
much less an unreliability so pervasive as to require excluding his opinion as a
whole. If defendant believes Dr. Smith is biased in favor of plaintiff’s interests, it
may attempt to expose that bias through cross-examination.
30See
Thomas B. Ireland, Ph.D., Professor Emeritus of Economics,
University of Missouri St. Louis, available at http://www.umsl.edu/~irelandt/
(last visited July 22, 2020).
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Defendant’s objection is overruled.
4.
Value of Mr. Lessert’s household services
Defendant’s fourth, fifth and sixth objections complain that Dr. Smith
inflated the value of Mr. Lessert’s household services. (Docket 189 at
pp. 11-15). It argues the cost of Mr. Lessert’s household services should not be
calculated with reference to the wages of professional workers, that the services
he provided to his widow and children should not be calculated separately, and
that it is inappropriate to add an agency fee to account for the non-wage costs of
hiring freelance workers. Id. And again, defendant cites cases rejecting Dr.
Smith’s calculation of hedonic damages in an attempt to persuade the court that
all of his opinions are unreliable. Id. at pp. 13-15 (citing Smith, 732 F.3d at 65;
Saia v. Sears Roebuck & Co., 47 F. Supp. 2d 141 (D. Mass 1999); Families
Advocate, 2019 WL 1442162 at *1).
These objections simply quibble with the weight that should be assigned to
Dr. Smith’s opinion. See David E. Watson, P.C. v. United States, 668 F.3d
1008, 1014 (8th Cir. 2012) (“Generally, the factual basis of an expert opinion
goes to the credibility of the testimony, not the admissibility, and it is up to the
opposing party to examine the factual basis for the opinion in crossexamination.”) (internal quotation omitted). The court found above that these
costs are not barred as a matter of law and that Dr. Smith’s methodology is not
unreliable. See supra Sections III.C.2, 3. Defendant has its own methodology
for calculating household services to present to the jury. (Docket 190-1 at
pp. 9-13) (assigning a value of $27.49 per day to Mr. Lessert’s household
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services). The jury will be required to decide the value of Mr. Lessert’s
household services, if any. Dr. Smith’s or Dr. Ireland’s methodology may aid
them in their calculation.
The objections are overruled.
5.
Personal consumption
Defendant’s seventh objection attacks Dr. Smith’s methodology for
calculating Mr. Lessert’s personal consumption. Personal consumption refers
to the money Mr. Lessert earned “that would not have been used to provide
financial support” for his family. (Docket 190-1 at p. 5). Defendant first
objects to including Mr. Lessert’s unadopted stepdaughter in Dr. Smith’s
personal consumption analysis. (Docket 189 at p. 16). The basis for this
argument appears to be that Dr. Smith borrowed a personal consumption
assumption from another source for a five-person family.31 (Docket 144-9 at
p. 4). Excluding the stepdaughter, Mr. Lessert’s family included only four
members. Given that the magistrate judge ruled no costs can be recovered for
the stepdaughter in an R&R which the court adopts in full, see infra Section IV,
the court will sustain this portion of defendant’s objection. Dr. Smith may not
calculate Mr. Lessert’s personal consumption with reference to a five-person
family.
31Although
no party explained the correlation between the size of a family
and the rate of income one retains for personal consumption, the court imagines
the assumption is that the amount of income spent on family increases in
proportion to the family size.
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Defendant next asserts Dr. Smith “does not explain how he arrived” at the
percentages he used to calculate personal consumption. (Docket 189 at p. 16).
But, as defendant acknowledges, Dr. Smith borrowed the percentages from the
Ruble-Patton Personal Consumption tables. Id. Defendant’s real complaint
appears to be that Dr. Ireland borrowed slightly different percentages from the
same source. (Docket 190-1 at pp. 5-6). Dr. Ireland wrote that the difference
had a negligible impact on the loss calculation. Id. at p. 6. As no party
provided the court with a copy of the Ruble-Patton tables, the court cannot
validate one set of percentages over the other. Nor would it matter in any
event—it is the jury’s prerogative to determine the extent to which Mr. Lessert’s
lost earnings should be offset by his personal consumption, if at all. This
portion of defendant’s objection is overruled.
6.
Tax rate & retirement age
Defendant’s last two objections concern assumptions Dr. Smith made
about defendant’s tax rate and retirement age. (Docket 189 at pp. 16-19). Dr.
Smith assumed a 10 percent tax rate for wage and interest earnings. (Docket
144-9 at pp. 3 & 60-61). Dr. Smith explained during his deposition that the
assumption was based on Mr. Lessert’s effective tax rate, or the average rate he
paid across all of his tax brackets as opposed to the top marginal tax rate he paid
on the last dollar of his income. (Docket 194-1 at p. 4). The effective tax rate
calculation is included in his report. (Docket 144-9 at pp. 60-61). Defendant’s
allegation that Dr. Smith’s tax assumption is “arbitrary” and unexplained is
clearly false. (Docket 189 at p. 16).
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In his tax assumption, Dr. Ireland added railroad retirement taxes, also
known as Tier I and Tier II taxes. (Docket 190-1 at p. 4). “[W]hether these
taxes must be deducted from FELA lost future earnings is not well-settled.”
Cowden v. BNSF Ry. Co., 980 F. Supp. 2d 1106, 1124 (E.D. Mo. 2013) (excluding
evidence of railroad retirement taxes); see also Riley v. Union Pac. R. Co., No.
CIV-09-155, 2010 WL 1946286 at *1 (E.D. Okla. May 13, 2010) (same);
Stevenson v. Union Pac. R.R. Co., No. 07CV00522, 2009 WL 652932 at *2 (E.D.
Ark. March 12, 2009) (reserving ruling on admissibility of railroad retirement
taxes until trial). In 1996, the Supreme Court of Virginia noted the lack of “a
single FELA decision from either a federal or a state court holding that such
retirement payments should be deducted from gross income in calculating net
income.” Norfolk & W. Ry. Co. v. Chittum, 468 S.E.2d 877, 882 (Va. 1996).
The court gives notice it does not intend to admit such evidence without firm
supporting legal authority from its proponent.
Defendant next takes issue with Dr. Smith’s assumption as to Mr.
Lessert’s retirement age. Dr. Smith assumed Mr. Lessert would retire at age 67
because that would be the date he could retire with full benefits under the Social
Security system. (Docket 194-1 at p. 4). However, Dr. Smith also provided a
calculation of Mr. Lessert’s wages until age 79. (Docket 144-9 at p. 25).
Defendant believes Mr. Lessert would have retired at age 60, when he would have
become eligible for his railroad pension. (Docket 189 at pp. 17-18).
This is a classic factual issue for the jury. There is no record evidence
from which the court can determine as a matter of law at what age Mr. Lessert
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would have retired. The jury will be entitled to weigh “the possibility of earlier
retirement, injury, illness or other reason that Mr. Lessert would not have
continuously worked until age 67[,]” as defendant asks. (Docket 189 at p. 18).
Dr. Smith’s opinion will be useful to jurors because it provides data they may use
in calculating damages after settling on a retirement age. Dr. Smith need not,
as defendant seems to demand, account for all retirement possibilities in his
expert report.
Finally, the court rejects defendant’s argument that a jury cannot rely on
Dr. Smith’s “testimony [as] a mere tool, aid, or guide for the jury[.]” Id. A
quintessential purpose of an expert witness is to provide the jury with tools to
calculate damages. In support of its odd proposition, defendant cites Kurncz,
where the district court excluded Dr. Smith’s hedonic damages calculation
because it was insufficiently precise to aid jurors. 166 F.R.D. at 390-91. A lost
wages calculation, however, is an easier task than attempting to gauge the value
of lost enjoyment of life. Dr. Smith’s opinion does not establish an arbitrary
benchmark for calculating inherently indeterminable damages, nor does it raise
any danger of jury confusion. And more generally, the court refuses to apply
Daubert cases from the controversial hedonic damages context here, where
plaintiff asks for more widely accepted categories of damages.
Defendant’s eighth and ninth objections are overruled.
IV.
Plaintiff’s Damages
The magistrate judge recommended granting defendant partial summary
judgment as to plaintiff’s claims for Mr. Lessert’s “conscious pain and suffering”
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immediately following the incident and “losses sustained by Mr. Lessert’s
unadopted stepdaughter.” (Docket 180 at p. 1). She found the record
contained no evidence to show Mr. Lessert was conscious for any amount of time
after he was struck by the train. Id. at pp. 5-13. She further concluded South
Dakota law determines who qualifies as a beneficiary in a FELA action and
specifically excludes stepchildren from its definition of child. Id. at pp. 13-17.
No party objects to the damages R&R and the court, upon de novo review, finds it
to be a correct and appropriate resolution of defendant’s motion for partial
summary judgment. The court adopts it in full. Plaintiff may not seek
damages for Mr. Lessert’s conscious pain and suffering or for losses sustained by
his stepdaughter.
V.
Conclusion
The court finds defendant violated 49 C.F.R. § 214.315(a) by failing to
provide Mr. Lessert and his crew with the mandatory safety briefing when it
assigned them to foul the Deadwood wye switch during a call on the morning of
January 17, 2017. This regulatory violation constitutes negligence per se. The
court thus grants summary judgment to plaintiff on the issue of negligence.
However, the jury must determine whether defendant’s regulatory violation
caused Mr. Lessert’s death. The court adopts the magistrate judge’s negligence
R&R as modified by this opinion.
The court further finds Dr. Stan Smith is qualified to testify. His opinions
are reliable and admissible under Rule 702. The court affirms the magistrate
judge’s Daubert order with the sole modification that Dr. Smith may not include
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any reference to defendant’s unadopted stepdaughter in his personal
consumption testimony to the jury.
Finally, the court adopts the magistrate judge’s damages R&R in full.
ORDER
For the reasons given above, it is
ORDERED that defendant’s objections to the magistrate judge’s Daubert
order (Docket 189) are sustained in part and overruled in part.
IT IS FURTHER ORDERED that the magistrate judge’s Daubert order
(Docket 184) is affirmed as modified by this opinion.
IT IS FURTHER ORDERED that defendant’s objections to the magistrate
judge’s report and recommendation on negligence (Docket 185) are sustained in
part and overruled in part.
IT IS FURTHER ORDERED that the magistrate judge’s report and
recommendation on negligence (Docket 179) is adopted as modified by this
opinion.
IT IS FURTHER ORDERED that defendant’s motions for partial summary
judgment (Dockets 47, 115 & 129) are denied.
IT IS FURTHER ORDERED that plaintiff’s motion for partial summary
judgment (Docket 108) is granted.
IT IS FURTHER ORDERED that the magistrate judge’s report and
recommendation on damages (Docket 180) is adopted in full.
IT IS FURTHER ORDERED that defendant’s motion for partial summary
judgment (Docket 104) is granted.
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IT IS FURTHER ORDERED that the parties shall contact the court on or
before October 2, 2020 to schedule a trial on causation and damages.
Dated August 5, 2020.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
UNITED STATES DISTRICT JUDGE
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