United States District Court, D. Minnesota
Robert A. St. George, Plaintiff,
BNSF Railway Company, a Delaware Corporation, Defendant
[Copyrighted Material Omitted]
For Plaintiff: Cortney S. LeNeave and Richard L. Carlson, Hunegs, LeNeave & Kvas, PA, Wayzata, MN.
For Defendant: James F. Mewborn and Sally J. Ferguson, Arthur Chapman Kettering Smetak & Pikala, Minneapolis, MN; Stephen M. Warner, O'Neill & Murphy, St Paul, MN.
MEMORANDUM OPINION AND ORDER
SUSAN RICHARD NELSON,
United States District Judge.
This matter is before the Court on Defendant's Motion for Partial Summary Judgment on Plaintiff's Counts Two and Three [Doc. No. 8]. On March 5, 2014, Defendant submitted a supporting memorandum [Doc. No. 10] and one affidavit with several attached exhibits [Doc. No. 11]. On March 31, 2014, Plaintiff filed a Brief in Opposition to Defendant's Motion for Summary Judgment [Doc. No. 15], as well as an affidavit with several attached exhibits [Doc. No. 16]. Defendant filed a reply brief [Doc. No. 17], and an affidavit with attached exhibits [Doc. No. 18] on April 14, 2014. The matter was heard on April 16, 2014. For the reasons set forth below, Defendant's Partial Motion for Summary Judgment is denied.
A. The Parties and Plaintiff's Claims
Plaintiff Robert A. St. George (" Plaintiff" or " St. George" ) was employed by Defendant BNSF Railway Company (" Defendant" or " BNSF" ) from May 1973 until November 2009. (Compl. ¶ 8 [Doc. No. 1]; Answer ¶ 8 [Doc. No. 2].) Defendant is a corporation that served as an " interstate carrier engaged in interstate commerce through several states." (Answer ¶ 3 [Doc. No. 2].) While Plaintiff was employed by BNSF, he worked as a switchman and brakeman primarily in Defendant's Superior, Wisconsin yard. (Compl. ¶ ¶ 1-3 [Doc. No. 1]; Affidavit of Richard L. Carlson (" Carlson Aff." ), Ex. 1 at 22-23 [Doc. No. 16].) St. George brought this lawsuit against BNSF in October 2012, pursuant to the Federal Employer's Liability Act (" FELA" ), 45 U.S.C. § § 51-60, and the Federal Safety Appliance Act (" FSAA" ), 49 U.S.C. § § 20301-20306. (Id. ¶ ¶ 1, 19.)
In his Complaint [Doc. No. 1], Plaintiff states three counts against BNSF: (1) Plaintiff seeks damages under the FELA for injuries allegedly suffered during an incident on October 13, 2009, while he worked as a switchman/trainman for Defendant (id. ¶ ¶ 1-6); (2) Plaintiff seeks damages under the FELA for musculoskeletal dysfunction and impairment (MSD) allegedly caused by cumulative trauma associated with his employment as a swtichman/trainman for Defendant (id. ¶ ¶ 7-17); and (3) Plaintiff also seeks damages for cumulative injuries caused by FSAA violations under the FELA, which he allegedly suffered as a result of improperly inspected and maintained hand brakes, pinlifters, couplers, and other safety appliances (id. ¶ 19). Plaintiff's Counts Two and Three are challenged in Defendant's Motion for Summary Judgment; therefore, the Court focuses its attention solely on these Counts. (Def.'s Mot. for Summ. J. [Doc. No. 8].)
B. Plaintiff's Health and Injuries
Plaintiff is 64 years old. (Carlson Aff., Ex. 1 at 9 [Doc. No. 16].) He served in the U.S. Army from 1969 through 1971. (Id. at 11, 15, 19.) While in the Army, St. George operated heavy equipment to clear jungle and build roads in Vietnam. (Id. at 15-16.) Four years ago Plaintiff received partial disability status from the U.S. Department
of Veterans Affairs because they determined that exposure to Agent Orange in Vietnam caused him to develop diabetes. (Id.)
After his time in the Army, Plaintiff worked several odd jobs until he was hired by Defendant in February, 1973. (Id. at 19-21, 22.) Plaintiff worked for Defendant as a switchman/brakeman until he retired on February 2, 2010. (Id. at 61-62.) He stopped working because he had planned to retire at age 60, and because his shoulder pain prohibited him from physically completing his work. (Id.)
Plaintiff admits that he began experiencing aches and pains in his shoulders in 2006. (Carlson Aff., Ex. 1 at 68-70 [Doc. No. 16]; Mewborn Aff., Ex. E. [Doc. No. 11-1].) In fact, Plaintiff stated his shoulder " problems" may have started up to ten years ago. (Carlson Aff., Ex. 1 at 95-96 [Doc. No. 16].) St. George characterized these " problems" as primarily " aches." (Id.; Mewborn Aff., Ex. I at 5 [Doc. No. 18-1].) To relieve the pain, St. George took " ibuprofen" on a daily basis, and felt " fine" after taking the medication. (Carlson Aff., Ex. 1 at 69 [Doc. No. 16].) According to Plaintiff's " BNSF Railway Company, Employee Monthly Earnings History," St. George's earnings remained consistent from 2005 to 2009. (Carlson Aff., Ex. 6 [Doc. No. 16].) Plaintiff contends that these earnings statements " show that any shoulder symptoms did not adversely affect his ability to work as switchman/brakeman" during that time period. (Pl.'s Brief in Opp'n at 13 [Doc. No. 15].)
St. George's shoulder pain " started really getting bad...the last few months" before he retired. (Carlson Aff., Ex. 1 at 68-70, 77 [Doc. No. 16].) He explains that initially he experienced stiffness and soreness, which radiated from his neck to his shoulders. (Carlson Aff., Ex. 1 at 140 [Doc. No. 16].) However, the pain progressed, and eventually it spread to the joints toward the outside of his shoulder. (Id.) The pain made it difficult for St. George to lift his arms overhead or complete any activity that required him to lift his arms overhead. (Id.) In fact, Plaintiff contends that during the last few months of 2009, " [he] couldn't do [his] job anymore." (Id. at 68-70.)
Dr. Janus D. Butcher is currently Plaintiff's treating physician for his cumulative shoulder injury. (Carlson Aff., Ex. 1 at 110 [Doc. No. 16].) St. George first visited Dr. Butcher for his shoulder pain on December 8, 2009. (Mewborn Aff., Ex. D [Doc. No. 11].) During that doctor's appointment,
Plaintiff informed Dr. Butcher that this was the first time that his shoulder pain inhibited him from completing his work. (Id. at 1-2.) Upon completing a physical examination and reviewing x-rays, Dr. Butcher concluded that St. George suffered from " [r]otator cuff impingement with spur." (Id. at 2.)
Plaintiff completed an Employee Personal Injury/Occupational Illness Report on December 3, 2009 because " [he] was having a hard time doing [his] job and [he] had a lot of pain in [his] shoulders," which radiated down from his neck. (Carlson Aff., Ex. 1 at 66-67 [Doc. No. 16]; Mewborn Aff., Ex. E [Doc. No. 11].) In the statement, Plaintiff alleged that this injury was a result of " 36 years of riding boxcars with slack action, hard to throw switches, handbrakes, hard to hang air hoses, heavy pinlifters." (Mewborn Aff., Ex. E [Doc. No. 11].) As a result of completing this report, Plaintiff was interviewed about his injuries by BNSF's claim representative, Jeff Johnson. (Mewborn Aff., Ex. B at 11 [Doc. No. 11].) During the interview Plaintiff explained that " [he] knew [the injury] was related to work" based on the timing of the pain intensity. (Id. at 39.) Plaintiff alleges that during this interview Johnson informed Plaintiff that he had three years from the date of filing an injury report to pursue a legal claim against BNSF. (Carlson Aff., Ex. 1 at 141-42 [Doc. No. 16].)
C. Count Two: Federal Employers' Liability Act, 45 U.S.C. § § 51-60
Pursuant to the FELA, Defendant, a common carrier by railroad, has a duty to take reasonable care to provide a safe workplace and safe equipment. See 45 U.S.C. § 51. Liability attaches if BNSF fails to provide reasonably safe equipment or a reasonably safe workplace. Id.
In Count Two of Plaintiff's Complaint, St. George alleges that his permanent cumulative shoulder injury, described in detail above, is a result of Defendant's failure to provide a safe workplace or safe equipment, which is required the FELA. (See Compl. ¶ ¶ 7-17 [Doc. No. 1].) Specifically, St. George alleges that his injury was caused by moving on and off equipment, as well as operating switches, hand brakes, pinlifters, couplers, and other equipment that Plaintiff claims was unsafe and defective and improperly maintained by Defendant. (Mewborn Aff., Ex. A at 1-2, 3-4 [Doc. No. 11-1]; Carlson Aff., Ex. 2 at 4 [Doc. No. 16].)
D. Count Three: Federal Safety Appliance Act, 49 U.S.C. § § 20301-20306
The FSAA requires that a railroad equip its railcar with specific properly working appliances, including an efficient brake system, couplers, and handbrakes. See 49 U.S.C. § § 20301-20306. The FSAA's definition of " couplers" includes pinlifters, when there is evidence that the pinlifter operated abnormally and prevented the cars from uncoupling. Phillips v. Cheapeake & Ohio Ry. Co., 475 F.2d 22, 25 (4th Cir. 1973). Similarly, the FSAA's definition of " brake system" encompasses air hoses used for air brakes. McGowan v. Wisconsin Cent. Ltd., No. 04-C-0170, 2005 WL 2077355, at *4 (E.D. Wis. Aug. 26, 2005); Orchelle v. CSX Transportation, Inc., 574 So.2d 749 (Ala.1990) (applying the FSAA where a railroad switchman injured himself attempting to connect air hoses for air brakes on rail cars that were at a standstill).
Plaintiff alleges that in violation of the FSAA, Defendant hauled or permitted to be hauled, or used on its line of railway, railcars equipped with unsafe and defective hand brakes, pinlifters, and couplers that were inefficient insofar as they were hard to operate, thereby causing Plaintiff's injuries. (Mewborn Aff., Ex. A at 1-2, 3-4
[Doc. No. 11-1]; Pl.'s Brief in Opp'n at 31 [Doc. No. 15].) Although the FSAA does not provide a private cause of action for violations of the statute, an employee may recover for injuries caused by FSAA violations under the FELA. See Crane v. Cedar Rapids & Iowa City Ry. Co., 395 U.S. 164, 166, 89 S.Ct. 1706, 23 L.Ed.2d 176 (1969).
Plaintiff admits that he cannot recall " any specific car numbers" or specific pieces of equipment that were defective. (Carlson Aff., Ex. 1 at 103-04 [Doc. No. 16].) Nonetheless, in Plaintiff's Answers to Defendant's Interrogatories Set II, St. George contends that " [w]hile [he] did not keep records as to specific car numbers or dates or times when [he] had to work with railcars equipped with handbrakes with short release handles, [he] did report those cars to the trainmasters on duty." (Carlson Aff., Ex. 2 at 2-3 [Doc. No. 16].) He would also report defective railcar couplers to the yardmaster and carman on duty. (Id. at 4.) Similarly, St. George narrowed down which rail cars had defective air hoses. He stated that the cars which had misaligned air hoses were " the ADM cars with the UELX numbers, Allrail older coal cars and what they call battleships." (Id.) He also " always reported those cars at the safety meetings with Defendant and was told that as the cars came in for repair, those hoses would be replaced with newer, soft hoses." (Id.) Plaintiff testified during his deposition that frequently handbrakes and pinlifters did not work as intended. (Carlson Aff., Ex. 1 at 72-73, 78 [Doc. No. 16].) In fact, St. George was able to narrow down which rail cars had defective pinlifters. He alleged that " [p]aper box cars with cushioned underframes and three bars on the pinlifters [sic]" had the defective pinlifters ...