Jenkins v. BNSF Railway Company
Filing
62
Memorandum Opinion and Order... The court ORDERS that defendant's motion for summary judgment be, and is hereby, granted, and that all claims and causes of action asserted by plaintiff against defendant be, and are hereby, dismissed with prejudice. (Ordered by Senior Judge John McBryde on 11/27/2018) (wxc)
U.S. DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
FILED
IN THE UNITED STATES DISTRI T C01RT
NORTHERN DISTRICT OF 'TE AS
NOV
FORT WORTH DIVISION
PAULETTE JENKINS, AS THE
PERSONAL REPRESENTATIVE OF THE
ESTATE OF BEAUFORD JENKINS,
DECEASED,
2 7 2018
§
CLERK, U.S. DISTRICT COURT
§
B~--.,,,--...---
ncputy
§
§
§
Plaintiff,
§
§
vs.
§
NO. 4:18-CV-178-A
§
BNSF RAILWAY COMPANY,
§
§
Defendant.
§
MEMORANDUM OPINION
and
ORDER
Before the court for decision is the motion for summary
judgment filed October 25, 2018, by defendant, BNSF Railway
Company.
After having considered such motion and its supporting
brief and appendix, the brief in opposition thereto of plaintiff,
Paulette Jenkins, as the Personal Representative of the Estate of
Beauford Jenkins, Deceased, and its supporting appendix,
defendant's objections to plaintiff's summary judgment evidence
and reply brief in support of its motion for summary judgment,
the entire record of this action, and pertinent legal
authorities, the court has concluded that such motion should be
granted.
I.
History of the Litigation
A.
The Original Complaint
This action was instituted by the filing by plaintiff of her
complaint on March 5, 2018.
Plaintiff alleged in a conclusory
way causes of action under the Federal Employers' Liability Act,
45 U.S.C.
§
et seq.
51,
Act, 4 9 U.S. C.
§
("FELA"), and the Locomotive Inspection
20701 ("LIA") .
She alleged that:
She is the widow of Beauford Jenkins
Doc.' 1 at 1, ,
2.
("Mr. Jenkins").
Mr. Jenkins "was employed by the Defendant
railroad as a carman/fireman/engineer/train master and was acting
in the course and scope of his employment with Defendant."
at 2, , 4.
Id.
"During the course and scope of his career with
Defendant railroad and while working in the Defendant's yards,
buildings, locomotives and along its right of ways,
[Mr. Jenkins]
was exposed to various toxic substances and carcinogens including
but not limited to diesel fuel/exhaust, benzene, herbicides,
creosote and rock/mineral/asbestos dust and fibers."
Id., ,
6.
Mr. Jenkins's exposure to those "toxic substances and known
carcinogens, whether by touch, inhalation or consumption, in
'The "Doc. _ " references are to the numbers assigned to the referenced items on the docket in
this Case No. 4: l 8-CV-178-A.
2
whole or in part, caused or contributed to his development of
bladder cancer."
Id., ,
7.
Mr. Jenkins's "cancer and related
diseases are the result of the negligence of the Defendant
railroad in that it utilized known cancer causing materials in
its operations, which the Defendant knew, or in the ordinary
exercise of ordinary care should have known, were deleterious,
poisonous, toxic and highly harmful to its employees' health."
Id.,
,
9.
"Defendant failed to provide [Mr. Jenkins] with
locomotives that had proper and adequate ventilation and/or air
filtration systems, the failure of which allowed diesel fumes,
dust,
fibers and toxins to accumulate and, subsequently, be
inhaled by [Mr. Jenkins] . "
Id. at 4, , 12.
In addition,
defendant "failed to: install proper engine exhaust filters;
utilize low emissions fuel such as bio diesel and[] mandate
cleaner burning engines from the locomotive manufacturers."
, 13.
Id.,
The "occurrences were caused in whole or in part by the
negligence of the Defendant and/or the negligence of the
Defendant's agents, servants and/ or employees."
Id., , 14.
a direct result of the negligence of the Defendant railroad,
Jenkins]
"As
[Mr.
experienced and endured pain, suffering, inconvenience,
irritation, annoyance; suffered emotional distress; incurred
medical expenses associated with diagnosis and treatment .
3
[and]
died on March 7, 2015 as a result of complications from
bladder cancer."
Id., both,, 15.
Plaintiff alleged that she seeks all damages recoverable
under the FELA, id.,
, 16; and she demanded judgment in excess of
$150,000, id., prayer.
B.
Defendant's Motions for More Definite Statement and Lone
Pine Order
Plaintiff caused a copy of her complaint to be served on
defendant on May 25, 2018.
Doc. 23.
On June 22, 2018, defendant
filed a motion (amending an earlier one)
for more definite
statement and a motion for Lone Pine order', alleging, inter
alia, that:
This action is one of approximately thirty Federal
Employers Liability Act ("FELA") cases filed against
BNSF by the same plaintiffs' counsel in various federal
courts around the country.
The firm's boilerplate
complaints repeat the same vague, broad allegations of
exposure to multiple substances to employees with
different jobs and workplaces. Because of these broad,
vague "railroad work causes cancer" allegations, BNSF
is unable to understand the true theory of this
Plaintiff's case and reasonably prepare a response.
Plaintiff's allegations fail to provide sufficient
notice of the particular claims asserted against BNSF
in this action. Therefore, the Court should require
Plaintiff to amend the Complaint to address these
deficiencies and thereby provide a more definite
2
Lone Pine orders are named for Lore v. Lone Pine Corp., No. L-33606-85, 1986 WL 637507
(N.J. Super. Ct. 1986). See Acuna v. Brown & Root. Inc., 200 F.3d 335, 340 (5th Cir. 2000). They are
"designed to handle the complex issues and potential burdens on defendants and the court in mass tort
litigation," which in federal court "are issued under the wide discretion afforded district judges over the
management of discovery under Fed. R. Civ. P. 16." Id.
4
statement of his [sic] claims and allegations pursuant
to Fed. R. Civ. P. 12(e)
Doc. 25 at 4.
C.
Plaintiff's First Amended Complaint
Instead of responding to the amended motions, plaintiff
filed on July 12, 2018, an amended complaint. 3
She did not
eliminate the generalities about which defendant complained in
its motions.
Rather, she added to the generalities, thus making
even more difficult for defendant to initiate pointed discovery
or otherwise prepare for a defense of plaintiff's claims.
Doc.
27.
D.
Order Granting One of the Motions and Withholding a Ruling
on the Other
The court treated defendant's motion for more definite
statement as being directed to the amended complaint, and the
court granted the motion by an order issued July 16, 2018,
requiring that by July 30, 2018, plaintiff file a second amended
complaint in which she was to provide the specificity sought by
3
0n July 19, 2018, plaintiff filed a motion for leave to file a response in opposition to
defendant's motion for "more definitive statement." Doe. 34. The court granted that motion by an order
issued July 19, 2018, doc. 35, but in the same order the court directed that the July 16 order requiring
plaintiff to file a second amended complaint remained in effect, id. at 2.
5
defendant.'
Doc. 33 at 8.
In the same July 16 order, the court
withheld ruling on defendant's request for a Lone Pine-type
order, but gave defendant an opportunity to pursue that matter
further after receiving plaintiff's second amended complaint.
Id. at 9-10.
E.
Plaintiff's Second Amended Complaint
Plaintiff filed her second amended complaint on July 30,
2018.
Doc. 41.
She persisted in her general, conclusory
allegations, with slight alterations.
She repeated that she
sought "all damages recoverable under the FELA," and demanded
judgment in excess of $150,000.
F.
Id. at 5-6,
~
22 and Prayer.
Defendant's Answer to Second Amended Complaint
On August 24, 2018, the court ordered that by August 31,
2018, defendant answer the second amended complaint.
Doc. 48.
Defendant complied by filing an answer that, for the most part,
denied the allegations of the second amended complaint, and
stated as to certain of the allegations that defendant was
without information sufficient to admit or deny.
4
Doc. 51.
ln its motion, defendant explained that:
A more definite statement is needed to show that Plaintiff is entitled to relief, which
necessarily requires the specific substances at issue and the extent and duration of
exposure as to each, the specific type of exposure, the specific level of exposure, the
specific times of exposure, and the specific locations of exposure that allegedly injured
the decedent as a result of BNSF's negligence.
Doc. 25 at 7.
6
G.
Defendant's Renewed Motion for Lone Pine Order
On September 13, 2018, defendant filed a renewed motion
seeking a Lone Pine order, alleging that plaintiff's second
amended complaint had failed to provide enough specificity to
enable defendant to make a meaningful response to plaintiff's
allegations and to engage in properly focused discovery.
Doc. 52
at 1.
H.
Plaintiff's Response to the Renewed Motion for Lone Pine
Order
On September 18, 2018, plaintiff filed a response to the
renewed motion for Lone Pine order.
Doc. 53.
She did not
provide a substantive response, but simply incorporated an
earlier response, and informed the court that several district
courts had previously denied similar motions in other cases.
I.
Order Authorizing Defendant to File a No-Evidence Motion for
Summary Judgment
On September 25, 2018, the court issued an order by which
the court expressed disappointment in the lack of specificity in
plaintiff's second amended complaint, and sympathy with
defendant's positions that "plaintiff should be required to make
at least a minimal showing that there is some scientific basis
for her claims, and that defendant should not be required to
engage in lengthy, costly discovery in order to find out the
exact nature of plaintiff's claims against it."
7
Doc. 54 at 2-3.
However, rather than to issue a Lone Pine order, the court
authorized defendant to file a no-evidence motion for summary
judgment,
"thus putting plaintiff to the burden of producing
summary judgment evidence raising genuine issues of fact as to
each element of her claim against defendant."
Id. at 3.
The
court expressed its expectations as to the result that would
follow from the filing by defendant of such a motion, by
explaining:
[T]he court thinks appropriate at this time for
defendant to file expeditiously a no-evidence motion
for summary judgment that will flush out whatever
information defendant might need to proceed with
discovery if the motion is denied or bring this case to
an end if plaintiff lacks evidence to raise issues of
fact as to the essential elements of her claim.
Id. at 4.
Defendant was given a deadline until October 25, 2018,
for the filing of such a motion.
Id. at 5.
The court denied defendant's renewed motion for Lone Pine
order "on the assumption that if plaintiff has additional
information of the kind defendant is seeking by that renewed
motion, such additional information will be made known to
defendant by plaintiff's response to such a no-evidence motion
for summary judgment."
Id. at 5-6.
8
II.
The Motion for Summary Judgment, Response, and Reply
A.
The Motion and Supporting Brief and Appendix
On October 25, 2018, defendant filed its motion for summary
judgment, asserting that it "is entitled to judgment as a matter
of law as there is no evidence establishing a genuine dispute of
material fact on the required elements of negligence and
causation regarding the claims of Plaintiff."
Doc. 55 at 1.
The
motion was supported by a brief in which defendant more
specifically stated the grounds of its motion, by alleging that
"Plaintiff Cannot Show That BNSF Breached Its Duty to Mr.
Jenkins," doc. 56 at 3; "Plaintiff Cannot Show That Mr. Jenkins'
Bladder Cancer Was Foreseeable to BNSF," id.; and that "Plaintiff
Has Failed to Make a Showing That BNSF's Negligence, If Any,
Caused Mr. Jenkins' Bladder Cancer," id. at 4.
As to plaintiff's LIA claim, defendant maintained in its
brief that plaintiff "has demonstrated no facts .
that BNSF
in fact failed to provide Mr. Jenkins with proper locomotives or
that such alleged failure caused his bladder cancer."
Id. at 3.
Defendant makes known in its brief that it had sought
specificity relative to plaintiff's claims by service of a set of
written interrogatories and a request for production of documents
on September 21, 2018, with a deadline for answer and response of
9
October 22, 2018, but that as of October 25, 2018, plaintiff had
failed to answer or respond to either of them.
Doc. 56 at 1-2.
Defendant added that plaintiff's initial disclosure document
failed to provide defendant the needed information.
Id.
Accompanying the motion was an appendix that contained the
following material:
(1) a copy of the second amended complaint,
doc. 57 at App. 2-7;
(2) a copy of the unanswered first set of
written interrogatories directed by defendant to plaintiff, id.
at App. 8-17;
(3) a copy of the first requests for production of
documents directed by defendant to plaintiff, to which response
had not been made, id. at App. 18-31;
(4) a copy of the Initial
Disclosures that plaintiff had served on defendant in early
October 2018, id. at App. 32-35; and (5) a copy of this court's
September 25, 2018 order, id. at App. 36-41.
B.
Plaintiff's Response and Supporting Brief and Appendix
On November 15, 2018, plaintiff filed her response in
opposition to defendant's motion for summary judgment, urging the
court to deny the motion in its entirety.
Doc. 58.
She did not
provide any summary judgment evidence in support of her pleaded
conclusory claims against defendant.
Rather, her brief consisted
primarily of citations of authorities and arguments that discuss
in a general way the proof requirements and standards of conduct
10
established by the FELA and court decisions, with emphasis on the
importance of jury determinations in FELA cases.
Doc. 59.
In the concluding pages of plaintiff's brief, she expressed
her contention that "when all of the evidence included in the
record is viewed in a light most favorable to Plaintiff, there is
more than sufficient evidence creating a fact issue of the jury."
Id. at 16.
She then provided a review of items included in her
appendix that she contended raised issues of fact that defeat
defendant's motion.
Id. at 18-20.
Plaintiff made no response to the ground of defendant's
motion directed to the absence of evidence supporting the
elements of plaintiff's LIA claim.
The appendix filed by plaintiff contained the following
material:
(1) a copy of a May 31, 2017 article by Michael J.
Ellenbecker, Sc.D., Certified Industrial Hygienist, titled
"Occupational Exposure of Railroad Workers," doc. 60 at 1-12;
(2) a copy of a publication pertaining to a presentation made at
a May 1955 meeting of the General Claims Division, Association of
American Railroads, id. at 13-18;
(3)- (6) excerpts from
depositions taken in Case No. 17-cv-03572, styled "Collins v.
BNSF Railway Co.," pending in the U.S. District Court for the
Southern District of Texas, id. at 19-31;
(7) a copy of Press
Release No. 213 of International Agency for Research on Cancer
11
dated June 12, 2012, titled "IARC: Diesel Engine Exhaust
Carcinogenic," id. at 32-35;
(8) a copy of a publication titled
"Diesel Exhaust and Cancer," id. at 36-41; and (9) a copy of an
article titled "A Meta-Analysis of Bladder Cancer and Diesel
Exhaust Exposure," id. at 42-47.
C.
Defendant's Objections to Plaintiff's Summary Judgment
Evidence and Reply Brief in Support of Motion
On November 16, 2018, defendant filed a document by which it
made objections to plaintiff's summary judgment evidence and
replied to plaintiff's response to defendant's motion.
Doc. 61.
The objections are directed to items (exhibits) 1, 2, 7, 8,
and 9 in the appendix supporting plaintiff's response.
Essentially, the objections are that those items are not
authenticated in such a way that they can be considered as
summary judgment evidence. 5
As to the merits of defendant's motion, defendant sums up
its reply as follows:
Exhibiting generic articles, an old opinion, and
deposition testimony from other cases, Plaintiff
ignores the arguments in BNSF's Brief.
Plaintiff does
not attempt to address her failure to respond to any
'The cotnt is inclined to think that defendant's objections to what plaintiff presents as summary
judgment evidence have merit. None of those items (Exhibits I, 2, 7, 8, and 9 in plaintiff's appendix) are
anything other than generally worded opinions or studies that have not been shown to have any relevance
to the claims being made by plaintiff in this paiticular case. Moreover, as defendant maintains, none of
them is properly authenticated. However, the court is not making specific 1ulings on defendant's
objections inasmuch as they all become moot in light of the rulings the court is making in this
memorandum opinion and order.
12
pending written discovery requests or to provide
reasonably sufficient Disclosures.
She provides no
medical records or expert support for her causation
argument, and her negligence •expert report" is a
generic discussion of industry knowledge, drafted not
for this case and long before this Complaint was filed,
that makes no mention of Plaintiff's decedent, BNSF, or
the negligence claims in this case.
Id. at 3.
By way of more pointed response to plaintiff's arguments
that juries should be permitted to decide FELA cases, defendant
called attention to court decisions that involved rulings in
favor of defendants in FELA cases based on lack of evidence of
negligence or because of the plaintiff's failure to produce
probative evidence of causation.
Id. at 4-6.
III.
Analysis
A.
Rules and Court Decisions Pertinent to Plaintiff's
Obligation to Provide Probative Summary Judgment Evidence in
Response to Defendant's Motion
The September 25, 2018 order authorizing defendant to file a
no-evidence motion for summary judgment had as one of its goals
obtaining a definition or definitions of the issues to be
resolved in this action to the end of facilitating discovery and
early disposition of unfounded claims--those embraced in
plaintiff's conclusory pleading in support of which plaintiff
would be unable to adduce any evidence.
13
Rule 11 of the Federal
Rules of Civil Procedure contemplates that a plaintiff must have
evidentiary support for her pleaded allegations.
That Rule,
combined with the pretrial requirements of Rule 16 of the Federal
Rules of Civil Procedure, provides part of the rationale for
entry of the court's September 25, 2018 order.
Moreover, the court has broad authority under Rule 56(f) of
the Federal Rules of Civil Procedure to initiate a summary
judgment motion of its own.
Rule 56(f) gives the court
authority, after giving notice and reasonable time to respond, to
grant summary judgment for a nonmovant and to consider summary
judgment on its own after identifying for the parties material
facts that may not be genuinely in dispute.
From those
provisions, the court infers that Rule 56, perhaps combined with
Rules 11 and 16, provides the court authority to do what the
court did here by the September 25 order.
As that order noted,
the purpose of the motion for summary judgment the court
authorized defendant to file was to "flush out whatever
information defendant might need to proceed with discovery if the
motion is denied or bring this case to an end if plaintiff lacks
evidence to raise issues of fact as to the essential elements of
her claim.•
Doc. 54 at 4.
Before the September 25 order was issued, defendant had done
what it reasonably could do to gain a ruling of the court that
14
would cause plaintiff to take steps to inform defendant of the
factual bases of the broad claims contained in plaintiff's
conclusory pleadings.
And, the court had ruled in response to
defendant's motion for more definite statement that plaintiff
should provide enough specificity in an amended pleading to
enable defendant to proceed with focused discovery and to have an
understanding of the precise nature of the claims being made
against it by plaintiff.
The responses of plaintiff to the
court's rulings made apparent that further action by the court
would be required to cause plaintiff to provide defendant
knowledge of the required factual bases of plaintiff's claims.
In Celotex Corp. v. Catrett, the Supreme Court provided
express approval of a no-evidence motion for summary judgment.
477 U.S. 317, 323, 325 (1986).
The Court explained that the
movant can discharge its initial summary judgment burden by
pointing out the absence of evidence supporting one or more
essential elements of the nonmoving party's claims,
~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.
The Court went on to explain that once
the movant has carried its initial burden under Rule 56(a), the
nonmovant must identify evidence in the record that creates a
15
genuine dispute as to each of the challenged elements of its
case.
Id. at 324.
Since Celotex Corp., Rule 56(c) has been amended, but the
Fifth Circuit has made clear that the no-evidence motion for
summary judgment procedure remains acceptable, particularly in a
case such as this.
See Austin v. Kroger Tex., L.P., 864 F.3d
326, 334-35 (5th Cir. 2017).
In Austin, the Fifth Circuit
explained the current status of federal law as applicable to a
no-evidence motion for summary judgment, saying:
Austin argues that federal law does not allow for "no
evidence" summary judgment motions, but instead
requires Kroger to point to evidence in the record
showing no issue of material fact on causation.
Under
federal law, however, it has long been the rule that
when the nonmovant has the burden of proof at trial,
the moving party may make a proper summary judgment
motion, thereby shifting the summary judgment burden to
the nonmovant, with an allegation that the nonmovant
has failed to establish an element essential to that
party's case. When a moving party alleges that there
is an absence of evidence necessary to prove a specific
element of a case, the nonmoving party bears the burden
of presenting evidence that provides a genuine issue
for trial.
Id. at 335 (citations,
internal quotation marks, and parentheses
omitted) .
The Fifth Circuit went on to explain that a movant meets its
summary judgment burden when it has alleged that there is no
evidence of an essential element of the plaintiff's claim, and
that such an allegation requires the nonmovant "to present
16
[evidence of that element]
in order to survive summary judgment."
Id.
Even if more were required, there is much more in this case.
Defendant has unsuccessfully sought by pretrial motions to force
plaintiff to give defendant the information it needs to proceed
with its discovery and other trial preparation.
In response,
plaintiff has simply thumbed her nose at defendant and the court.
Defendant has gone further by serving pointed discovery requests
on plaintiff in an attempt to obtain the specificity essential to
defense of plaintiff's broadly, conclusory worded allegations
against defendant.
Doc. 52 at App. 8-31.
The summary judgment
record indicates that plaintiff has simply ignored those
discovery requests.
For the stated reasons, defendant's no-evidence motion was
appropriate, and it put on plaintiff, to avoid summary judgment,
the burden to present responsive summary judgment evidence
raising issues of fact as to all essential elements of
plaintiff's claims against defendant.
B.
The Essential Elements of Plaintiff's Claims
Plaintiff's original and amended complaints and response to
defendant's motion for summary judgment are an attempt by
plaintif~ to state a statutory cause of action under FELA.
17
The
pertinent statutory language defines such a cause of action as
follows:
Every common carrier by railroad .
. shall be liable
in damages to any person suffering injury while he is
employed by such carrier
. for such injury or death
resulting in whole or in part from the negligence of
any of the officers, agents, or employees of such
carrier.
45 U.S.C.
§
51; Norfolk S. Ry. Co. v. Sorrell, 549 U.S. 158, 165
(2007).
Plaintiff's response to defendant's motion for summary
judgment borders on an argument that the FELA imposes strict
liability on employers if, notwithstanding the absence of
evidence, a jury chooses to make an award to a plaintiff in a
FELA case.
As the First Circuit made clear in Robert v.
Consolidated Rail Corp., 832 F.2d 3 (1st Cir. 1987), that is not
so:
FELA does not impose strict liability on employers.
Plaintiffs are still required to prove the traditional
common law elements of negligence:
duty, breach,
foreseeability, and causation.
Id. at 6.
Thus, essential elements of plaintiff's FELA claim that
require summary judgment evidence are that (1) Mr. Jenkins
suffered an injury while employed by defendant;
or death resulted in whole or in part from;
(2)
such injury
(3) the negligence of
any of the officers, agents, or employees of defendant.
18
The
court turns now to a discussion of the authorities that define
the ingredients of each of those elements.
1.
The Injury-on-The-Job Element
The evidentiary requirement necessary to satisfy the element
that Mr. Jenkins suffered an injury while employed by defendant
is self-defining.
There would have to be evidence that something
happened while Mr. Jenkins was at work for defendant that caused
him to suffer an injury of the kind claimed by plaintiff.
Nothing provided by plaintiff in her appendix constitutes
evidence raising that issue.
The wording of 45 U.S.C.
§
51,
supra at 18, provides the direct authority that absent evidence
on that subject plaintiff does not have a FELA claim against
defendant.
2.
The Negligence Element
As the Supreme Court explained in Norfolk,
"the elements of
a FELA claim are determined by reference to the common law."
Norfolk, 549 U.S. at 166.
The standard of care that determines
the existence of negligence is ordinary prudence.
Id. at 169;
see also Gallick v. Baltimore & Ohio R.R. Co., 372 U.S. 108, 118
n. 6 (1963) (explaining that "negligence is the failure to observe
ordinary care, and ordinary care is that degree of care which
people of ordinary prudence and sagacity use under the same or
similar circumstances").
19
An essential ingredient of the negligence element is
reasonable foreseeability of harm.
Gallick, 372 U.S. at 117.
See also Armstrong v. Kansas City S. Ry. Co., 752 F.2d 1110, 1113
(5th Cir. 1985).
U.S. 685
In CSX Transportation, Inc. v. McBride, 564
(2011), the Supreme Court quoted, and expressed approval
of the language in Gallick for that proposition.
Id. at 703.
And, in CSX Transportation, the Court confirmed that an inquiry
to be directed to a fact finder in a FELA case on the negligence
issue is whether the carrier failed to observe that degree of
care which people of ordinary prudence and sagacity use under the
same or similar circumstances, and that the fact finder may be
told that the railroad's duties are measured by what is
reasonably foreseeable under the circumstances.
Id.
The Court
added that "[i]f a person has no reasonable ground to anticipate
would or might result in a
that a particular condition
mishap and injury, then the party is not required to do anything
to correct [the] condition," again quoting Gallick.
Id.
The recommended definition of negligence in the Fifth
Circuit Pattern Jury Instructions, Civil, appears to be an
accurate summation of the controlling court decisions that define
the evidence that must be adduced in order to raise a genuine
20
issue of fact in support of the negligence element of a FELA
claim.
It reads:
The fact that an accident or injury may have
happened does not mean that it was caused by anyone's
negligence.
Defendant [name] is not required to
guarantee Plaintiff [name] 's safety.
The extent of
Defendant [name] 's duty is to exercise reasonable care
under the circumstances to see that the workplace is
reasonably safe.
Defendant [name] 's duty is measured
by what is reasonably foreseeable under the
circumstances.
If Defendant [name] has no reasonable
ground to anticipate that a particular condition would
or might result in a mishap and injury, then Defendant
[name] is not required to do anything to correct that
condition.
Pattern Jury Instructions, Civil, 5th Cir., 2014 Ed.,
Instruction
5.1, FELA, at 67.
3.
The Causation Element
While the causation element has been redefined since 1930,
the decision of the Supreme Court in Atchison, Topeka & Santa Fe
Railway Co. v. Toops, 281 U.S. 351 (1930), still has relevance on
the importance of evidence of causation once proof of negligence
has been established.
In Atchison, the court explained:
[P]roof of negligence alone does not entitle the
plaintiff to recover under the Federal Employers'
Liability Act.
The negligence complained of must be
the cause of the injury.
The jury may not be permitted
to speculate as to its cause and the case must be
withdrawn from its consideration unless there is
evidence from which the inference may reasonably be
drawn that the injury suffered was caused by the
negligent act of the employer.
Id. at 354-55.
21
The current version of the causation element of a FELA claim
was defined (or redefined)
in CSX Transportation as: a railroad
defendant is liable for a worker's injury nif the railroad's
negligence played a part--no matter how small--in bringing about
the injury.•
564 U.S. at 705 (internal brackets omitted).
The
Fifth Circuit Pattern Jury Instructions, Civil, on the causation
issue appear to be an accurate summation of the controlling court
decisions on the causation element.
It reads:
If negligence is proved, Plaintiff [name) must
show that it was a cause of the injury for which
Plaintiff [name) seeks damages.
To be a cause of an
injury, the negligence must have played a part, no
matter how slight, in bringing about or causing that
injury. Negligence may be a cause of injury even
though it operates in combination with another's act or
with some other cause, if the negligence played any
part in causing such injury.
Pattern Jury Instructions, Civil, 5th Cir., 2014 Ed., Instruction
5.1, FELA, at 67.
C.
The Exhibits in Plaintiff's Appendix Do Not Raise an Issue
of Fact as to Any of the Elements of Plaintiff's Claims
1.
The Deposition Excerpts
Four of plaintiff's appendix exhibits are excerpts from
depositions that were taken by an attorney for BNSF Railway
Company in an action pending in the United States District Court
for the Southern District of Texas, Houston Division, on
October 18, 2018, of fellow workers of the plaintiff in that
22
action.
Doc. 60 at 19-31.
Each of the deponents had been
identified by the plaintiff, apparently when he gave his
deposition in that action, as someone he had worked with while
employed by the Railway Company.
Id. at 20
p. 4); 27 (dep. p. 5); and 30 (dep. p. 4).
(dep. p. 4); 24
(dep.
None of the
deposition excerpts provide any evidence relative to the claims
of plaintiff in the instant action.
The deposition excerpts are
evidence that the deponents were exposed to diesel exhaust during
their work.
But that information is not evidence of what Mr.
Jenkins might have been exposed to during his work, the length of
that exposure (if there was any), or the effect of any such
exposure on Mr. Jenkins.
Nor do the deposition excerpts constitute any evidence that
diesel exhaust exposure, even if the court were to assume that
Mr. Jenkins suffered such an exposure, was the result of the
failure of defendant to observe ordinary prudence or reasonable
care.
There is nothing in the deposition excerpts that is
evidence that any such exposure, even if the court assumes that
it existed as to Mr. Jenkins, was such that defendant should
reasonably have foreseen that it would cause the kind of harm
that plaintiff claims it caused Mr. Jenkins.
23
For all of the reasons stated above, the deposition excerpts
provide no evidence creating a fact issue as to the negligence
element of plaintiff's FELA claim.
Similarly, the deposition excerpts provide no summary
judgment evidence raising a causation issue as to plaintiff's
claims.
Even if the court were to assume, arguendo, that Mr.
Jenkins was exposed to diesel exhaust during his employment by
defendant, and further assumed that such exposure resulted from
the failure of defendant to exercise ordinary care, there still
would be no evidence that such negligence played any part, no
matter how slight, in bringing about or causing the injury of
which plaintiff complains.
Finally, nothing in the deposition excerpts provides any
summary judgment evidence raising an issue in favor of plaintiff
on the injury-on-the-job element.
2.
The Remaining Exhibits
The remaining exhibits (Numbers 1, 2, 7, 8, and 9) are
publications of one kind or another that for the most part deal
with the question of whether diesel exhaust can, under certain
circumstances, be carcinogenic.
There is no summary judgment
evidence from which the inference can be drawn that any of those
items, even if they had been properly authenticated, has
relevance to whatever led to the death of Mr. Jenkins.
24
For each
of the reasons given above why the deposition excerpts do not
constitute summary judgment evidence establishing any element of
plaintiff's claims against defendant, nothing in these remaining
exhibits constitutes evidence raising an issue of fact as to any
of those elements.
Moreover, none of plaintiff's appendix exhibits raise an
issue of fact as to plaintiff's LIA claim.
Put simply, plaintiff has not adduced any summary judgment
evidence creating a genuine dispute as to any material fact.
D.
Defendant's Motion for Summary Judgment Is to Be Granted
Rule 56(a) directs that "[t]he court shall grant summary
judgment if the movant shows that there is no genuine dispute as
to any material fact and that the movant is entitled to judgment
as a matter of law."
Fed. R. Civ. P. 56(a) (emphasis added).
The
Supreme Court in Celotex and this court in Austin, supra at 1517, have made clear that a motion for summary judgment of the
kind filed by defendant causes plaintiff to have the summary
judgment burden to adduce evidence raising issues of fact as to
the essential elements of each of plaintiff's claims.
Otherwise,
plaintiff's claims will not survive summary judgment.
Plaintiff is incorrect when she contends in her response
that the courts invariably have determined that a jury should
decide each and every FELA case.
In Huffman v. Union Pacific
25
Railroad, the Fifth Circuit explained, in the course of reversing
a jury verdict in favor of the plaintiff in a FELA case and
remanding to the district court for entry of judgment for the
railroad company, that:
We hold that the evidence was insufficient on
causation. What form the additional necessary evidence
should have taken is not before us.
Huffman had
planned on including expert testimony on causation. We
are not reviewing the sufficiency of what Huffman
planned to introduce, but what he actually did.
It was
not enough.
675 F.3d 412, 426
(5th Cir. 2012).
Similarly, in the instant action, the evidence was
insufficient on each of the elements of plaintiff's claims.
As
was true in Huffman, the court here is not reviewing the
sufficiency of what plaintiff planned someday to introduce as
evidence, but what plaintiff actually did adduce under the guise
of summary judgment evidence.
It was not enough.
Plaintiff's arguments that the record is insufficient for
the court to make a ruling on a motion for summary judgment
because no depositions have been taken of coworkers of Mr.
Jenkins, his wife, or experts, and that the record "is at best
incomplete and at worst bare, discovery should continue and
BNSF's motion should be denied."
Doc. 59 at 16.
The "discovery
should continue• suggestion is puzzling, bearing in mind that the
court has not received information that plaintiff has conducted
26
any discovery in this case during its pendency since March 2018,
and the record indicates that the only discovery sought to be
accomplished by either party were the unsuccessful attempts by
defendant to obtain specificity as to plaintiff's claims by a set
of written interrogatories and requests for production of
documents served by defendant on plaintiff.
31.
Doc. 52 at App. 8-
As of the date of the filing defendant's motion for summary
judgment, plaintiff had failed to answer or respond to those
discovery items.
The court notes that plaintiff has not availed herself of
the procedure prescribed by Rule 56(d) of the Federal Rules of
Civil Procedure for relief if a party needs additional time
within which to gather evidence for response to a motion for
summary judgment.
She hardly is in a position now to contend
that she needs additional time for that purpose.
Plaintiff fails to acknowledge that this action has been
pending since early-March 2018; and that the filing of this
action at that time constituted a certification by plaintiff's
attorney that to the best of his knowledge, information, and
belief, formed after an inquiry reasonable under the
circumstances, plaintiff's factual contentions had evidentiary
support.
Fed. R. Civ. P. ll(b) (3).
Moreover, plaintiff has
known for a long period of time that defendant was seeking
27
factual specificity concerning plaintiff's claims, but, rather
than to provide that specificity, plaintiff appears to have
consciously taken steps to avoid doing so.
The failure of
plaintiff to do so in response to defendant's motion compels,
under the controlling authorities, the court to conclude that
there is no genuine dispute as to any material fact and that
defendant is entitled to judgment as a matter of law.
IV.
Order
Therefore,
The court ORDERS that defendant's motion for summary
judgment be, and is hereby, granted, and that all claims and
causes of action asserted by plaintiff against defendant be, and
are hereby, dismissed with prejudice.
SIGNED November 27, 2018.
j
I
/'
Judge
28
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