Ziegler v. Wisconsin Central Ltd

Filing 40

DECISION AND ORDER signed by Magistrate Judge William E Duffin on 4/27/15. IT IS ORDERED that Wisconsin Central's 24 motion for summary judgment is GRANTED and the complaint and this action are hereby dismissed. The Clerk shall enter judgment accordingly. (cc: all counsel) (mlm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JOHN ZIEGLER,
Plaintiff,
v.

Case No. 13-CV-996

WISCONSIN CENTRAL, LTD,
Defendant.
DECISION AND ORDER
I.

Procedural History
Plaintiff John Ziegler works as a conductor for defendant Wisconsin Central, Ltd.

railroad. (ECF No. 30, ¶ 1.) He alleges that he injured his shoulder on two separate
occasions when he attempted to operate railroad switches, the first on December 17,
2010, near Allenton, Wisconsin, and the second on December 29, 2010, in Slinger,
Wisconsin. (ECF Nos. 1, ¶¶ 7, 22; 30, ¶¶ 2-3.)
Ziegler filed the present action on September 4, 2013, alleging a claim under the
Federal Employers’ Liability Act, 45 U.S.C. § 51 et seq., for each incident. On November
12, 2014, Wisconsin Central moved for summary judgment. (ECF No. 24.) Ziegler
responded (ECF No. 30), and Wisconsin Central replied (ECF Nos. 31, 34, 39). The

motion is ready for resolution. In accordance with 28 U.S.C. § 636(c) and Fed. R. Civ. P.
73(b), all parties consented to a magistrate judge presiding over this action. (ECF No. 33,
35.) Venue is proper under 42 U.S.C. § 56. The court has jurisdiction under 42 U.S.C.
§ 56 and 28 U.S.C. § 1331.
II.

Summary Judgment Standard
“The court shall grant summary judgment if the movant shows 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). A fact is “material” only if it “might affect the
outcome of the suit” and a dispute is “genuine” only if a reasonable finder of fact could
accept the non-moving party’s position and return a verdict in its favor. Anderson v.
Liberty Lobby, 477 U.S. 242, 248 (1986). In resolving a motion for summary judgment, the
court is to “construe all evidence and draw all reasonable inferences from that evidence
in” favor of the non-movant. E.Y. v. United States, 758 F.3d 861, 863 (7th Cir. 2014) (citing
Gil v. Reed, 535 F.3d 551, 556 (7th Cir. 2008); Del Raso v. United States, 244 F.3d 567, 570
(7th Cir. 2001)). The “court may not make credibility determinations, weigh the
evidence, or decide which inferences to draw from the facts; these are jobs for a
factfinder.” Washington v. Haupert, 481 F.3d 543, 550 (7th Cir. 2007) (quoting Payne v.
Pauley, 337 F.3d 767, 770 (7th Cir. 2003)). To defeat a motion for summary judgment, a
nonmoving party must produce admissible evidence sufficient to enable a reasonable

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finder of fact to return a verdict in its favor. Fleishman v. Cont'l Cas. Co., 698 F.3d 598, 603
(7th Cir. 2012) (citing Berry v. Chi. Transit Auth., 618 F.3d 688, 690-91 (7th Cir. 2010)).
III.

Analysis
The Federal Employers’ Liability Act (FELA) “provides that ‘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.’” Conrail v.
Gottshall, 512 U.S. 532, 542 (1994) (quoting 45 U.S.C. § 51). “The intent of the FELA is to
provide broad remedial measures for railroad employees.” Green v. CSX Transp., Inc.,
414 F.3d 758, 765 (7th Cir. 2005). However, “the Act did not make the employer an
insurer. The liability which it imposed was the liability for negligence.” Myers v. Illinois
Central Railroad Co., 629 F.3d 639, 642 (7th Cir. 2010). As such, the Act requires that a
plaintiff prove all the elements of a negligence claim against his employer, Brown v.
Burlington Northern Santa Fe Ry., 765 F.3d 765, 771 (7th Cir. 2014), specifically, “duty,
breach, foreseeability, and causation.” Green, 414 F.3d at 766. But courts liberally
construe the statute to further its humanitarian purposes, and as such a FELA claim is
judged according to a relaxed standard of causation whereby a plaintiff need prove
only that the defendant’s negligence played some role, even the slightest role, in
producing the plaintiff’s injury. Brown, 765 F.3d at 771 (citing Conrail, 512 U.S. at 543).

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Ziegler contends that Wisconsin Central was negligent because it:
(1) failed to train Ziegler in how to remove snow and ice from switches;
(2) failed to provide Ziegler with adequate tools to remove snow and ice
from switches; (3) failed to clear the snow and ice from the Allenton
switch after snowing stopped the previous day; (4) failed to properly
repair the Allenton switch for winter by lowering the ballast (crushed rock
between the railroad ties) so that ballast, snow and ice would not interfere
with the moving parts of the switch; and (5) failed to correct problems
with the alignment of the Allenton switch--despite monthly reports that
this switch did not function properly because it was regularly out of
alignment.
(ECF No. 29 at 10.)
Wisconsin Central argues that to prove negligence Ziegler must offer the
testimony of an expert witness to establish the appropriate duty of care with respect to
switch maintenance and operation and to establish that Wisconsin Central breached
that duty. Ziegler responds with two arguments. First, he contends that, given his
experience as a railroad employee, he is “qualified to provide expert opinions on the
applicable standards of care in the railroad industry and on Wisconsin Central’s
breaches of these standards.” (ECF No. 29 at 11.) But, as Wisconsin Central points out,
Ziegler never designated himself as an expert under Federal Rule of Civil Procedure
26(a)(2)(A) or provided a report as required under Rule 26(a)(2)(B). Although a plaintiff
may testify as his own expert, Tagatz v. Marquette University, 861 F.2d 1040, 1042 (7th
Cir. 1988), Rule 26(a)(2)(A) is clear that a party must disclose “any witness” who will
testify as an expert; there is no exception for a plaintiff who will testify as an expert on
his own behalf. Moreover, experts, including a party, must generally submit a report,
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one important purpose of which is to provide the opposing party with notice of the
scope of the expert opinion that will be provided at trial and the basis for that opinion.
See, e.g., Ordon v. Karpie, 223 F.R.D. 33, 35 (D. Conn. 2004) (citing Advisory Committee
Notes to 1993 Amendments to Rule 26, paragraph (2)). Ziegler offers no argument that
he should not be required to comply with that obligation.
Moreover, despite Ziegler’s experience as a railroad employee, he has produced
no evidence that he possesses any particular knowledge, skill, experience, training, or
education relevant to the standard of care at issue in this case. In fact, in response to
Wisconsin Central’s summary judgment motion, Ziegler submitted an affidavit in
which he expressly states that he has no training on how to clean out switches, on how
to maintain switches, or on how to perform winter maintenance on switches. (ECF No.
30-4, ¶¶ 2-4). Given those admissions, Ziegler cannot be heard to claim that he is
qualified as an expert regarding the industry standard of care for the maintenance of
railroad switches.
Alternatively, Ziegler argues that he does not need an expert witness because
Wisconsin Central, by violating Federal Railroad Administration safety regulations and
its own standards, was negligent per se. (ECF No. 29 at 12-14 (citing CSX Transp., Inc. v.
McBride, 131 S. Ct. 2630, 2643, n. 12 (2011)).) He identifies four regulations that he
contends Wisconsin Central violated: 49 C.F.R. §§ 213.103(c) and (d), and 213.135(b) and

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(e). (Ziegler does not actually cite § 213.135(b) but quotes language from that section.)
(ECF No. 29 at 13.)
Wisconsin Central does not dispute that the violation of a safety regulation may
constitute negligence per se but argues that an expert is still required to explain and
interpret those regulations. (ECF No. 31 at 7-8.) On that point Wisconsin Central is
incorrect. “The meaning of federal regulations is not a question of fact, to be resolved by
the jury after a battle of experts. It is a question of law, to be resolved by the court.”
Bammerlin v. Navistar Int'l Transp. Corp., 30 F.3d 898, 900 (7th Cir. 1994); see also United
States v. Caputo, 517 F.3d 935, 942 (7th Cir. 2008) (“The ‘expert’ would have testified
about the meaning of the statute and regulations. That's a subject for the court, not for
testimonial experts. The only legal expert in a federal courtroom is the judge.”) (citation
omitted); Haager v. Chicago Rail Link, L.L.C., 232 F.R.D. 289, 294-95 (N.D. Ill. 2005). Thus,
not only is an expert witness not required to explain and interpret federal regulations,
but such testimony consistently has been excluded under Rule 702. CDX Liquidating
Trust v. Venrock Assocs., 2009 U.S. Dist. LEXIS 63546, 29 (N.D. Ill. 2009).
Wisconsin Central alternatively argues that Ziegler’s negligence per se theory
cannot proceed because it was not alleged in the complaint. (ECF No. 31 at 8-9.)
Specifically, Wisconsin Central asked Ziegler in an interrogatory to identify “each
federal and state statute, government regulation, policy or standard which [he] claims
defendant violated with respect to the incident which is the subject of [his] complaint.”

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(ECF No. 32-4 at 5.) Ziegler responded: “Objection, calls for a legal conclusion. Without
waiving said objection, see Complaint.” (ECF No. 32-4 at 5.) But the only statute,
regulation, policy, or standard referenced in the complaint is the FELA, generally. (ECF
No. 1.) Neither Ziegler’s complaint nor his discovery response refers to the federal
regulations he now cites in response to Wisconsin Central’s summary judgment motion.
Similarly, when Wisconsin Central asked Ziegler to identify how Wisconsin
Central was allegedly negligent, Ziegler again responded simply, “See Complaint.”
(ECF No. 32-4 at 6.) But, again, the complaint offers absolutely no suggestion that
Ziegler was alleging that Wisconsin Central was negligent per se for failing to comply
with any particular federal regulation.
Ziegler also argues that he can establish negligence per se based upon Wisconsin
Central’s own internal policies. (ECF No. 29 at 13.) Although potentially relevant in
determining the standard of care, failure to comply with an internal policy, standing
alone, does not establish negligence per se. Hananburgh v. Metro-North Commuter R.R.,
2015 U.S. Dist. LEXIS 34008, 16-17 (S.D.N.Y. Mar. 18, 2015) (discussing cases). An
internal policy might reflect an organization’s effort to hold itself to a standard of care
greater than that necessary for a finding of negligence. Without evidence that Wisconsin
Central’s internal policies reflect the applicable standard of care, Ziegler cannot
establish negligence per se simply based upon Wisconsin Central’s alleged failure to
comply with its internal policies.

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If Ziegler intended to allege that Wisconsin Central was negligent per se for its
failure to comply with federal regulations or with its internal policies, both of the
interrogatories put to him plainly called for him to so indicate. Having failed to do so,
and instead merely referring Wisconsin Central to see the complaint, Ziegler is limited
to what is contained in his complaint. The complaint is devoid of any hint that Ziegler
might rely upon a breach of federal regulations or internal policies to establish that
Wisconsin Central was negligent per se. Consequently, Ziegler cannot now be heard to
claim that he is proceeding on a negligence per se theory.
Therefore, the court shall grant Wisconsin Central’s motion for summary
judgment.
IT IS THEREFORE ORDERED that Wisconsin Central’s motion for summary
judgment (ECF No. 24) is granted and the complaint and this action are hereby
dismissed. The Clerk shall enter judgment accordingly.
Dated at Milwaukee, Wisconsin this 27th day of April, 2015.

_________________________
WILLIAM E. DUFFIN
U.S. Magistrate Judge

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