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Smith-Bunge v. Wisconsin Central, Ltd.

United States District Court, D. Minnesota

August 31, 2017

Todd Smith-Bunge, Plaintiff,
Wisconsin Central, Ltd., Defendant.


          Paul A. Magnuson, United States District Court Judge.

         This matter is before the Court on Defendant's Motions for Summary Judgment, to Sever, and to Exclude Expert Testimony. For the following reasons, the Motion for Summary Judgment is granted in part and denied in part, the Motion to Sever is denied as moot, and the Motion to Exclude is granted.


         Plaintiff Todd Smith-Bunge worked at Defendant Wisconsin Central, Ltd., for six years. He initially worked as a machine operator, but after suffering a back injury on the job, he transitioned to working as a welder. (McNee Aff. Ex. 1 (Smith-Bunge Dep.) at 59.) In the course of his duties as a welder, Smith-Bunge drove a welding truck. (Id. at 72.)

         On September 18, 2014, Smith-Bunge, two other Wisconsin Central employees, and employees of another company, Holland, LP, were working on train tracks near Aurora, Minnesota. (Id. at 70-71.) Because of the track work, a train traveling on the track had been stopped just east of where they were working, and Smith-Bunge was aware of this fact. (Id. at 82.) Smith-Bunge also knew that the railroad had given the train permission to continue moving when the work was completed. (Id.)

         After they finished working, the other employees got into their vehicles and Smith-Bunge got into his truck. The three vehicles drove west on the service road parallel to the tracks; they were traveling in the same direction as the now-moving train. The service road crossed the tracks and continued to run west, parallel to and on the other side of the tracks. (Id. at 94-96.) The other two vehicles crossed the tracks ahead of the train without incident; Smith-Bunge drove into the path of the oncoming train and was injured. He admits that he saw and heard the train as he was driving (id. at 98-99), but claims that the truck brakes either malfunctioned, some obstacle prevented him from braking, or the taconite pellets on the roadway prevented his truck from stopping in time to avoid an accident.

         The railroad investigated the incident, but at the union's request waited until Smith-Bunge was cleared to return to work some five months later to hold a hearing. (McNee Decl. Ex. 9 (Swalboski Dep.) Ex. 2.) The railroad's expert witness, who examined the truck and reconstructed the accident, testified that although one of the truck's six brake axles was out of adjustment, the rest of the brakes were in good working order and were sufficient to stop the truck. (Id. Ex. 1 (Hr'g Tr.) at 118-19; 122.) Smith-Bunge's expert witness agrees with this conclusion. (McNee Decl. Ex. 6 (Lofgren Dep.) at 70-71.) There was no evidence of any obstacles blocking the brake pedal. (Id. at 88-89.) The data recorder from the truck indicated that, although Smith-Bunge had slowed to about 10 mph at the time of the accident (McNee Decl. Ex. 7 (Rogers Dep.) at 167), he had not depressed the brake pedal enough to activate the anti-lock brake system. (Id. at 128.) Smith-Bunge did not proffer any witness or expert testimony at the hearing, although he had retained an expert to perform tests on the truck and to examine the service road and crossing, presumably in anticipation of this litigation.

         Wisconsin Central determined that Smith-Bunge violated four of the railroad's safety rules, including that he falsely reported that the truck's brakes failed and caused the accident. On March 6, 2015, Wisconsin Central terminated Smith-Bunge's employment. (Garella Aff. Ex. 14.)

         Smith-Bunge filed an administrative complaint, claiming that his termination was in retaliation for a previous federal lawsuit and the injuries he suffered in the September 18, 2014, accident. (McNee Aff. Ex. 12.) The record does not reflect the disposition of that complaint. Smith-Bunge filed this lawsuit on December 16, 2015, claiming both retaliation under the Federal Railroad Safety Act (“FRSA”) and that the railroad's negligence caused the accident under the Federal Employers' Liability Act (“FELA”).

         A. Summary Judgment

         Summary judgment is proper if there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The Court must view the evidence and inferences that may be reasonably drawn from the evidence in the light most favorable to the nonmoving party. Enter. Bank v. Magna Bank, 92 F.3d 743, 747 (8th Cir. 1996). The moving party bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A party opposing a properly supported motion for summary judgment may not rest on mere allegations or denials, but must set forth specific facts in the record showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).

         1. FRSA Claim

         The FRSA prohibits rail carriers from retaliating against employees who engage in safety-related protected activities. 49 U.S.C. § 20109. As relevant here, FRSA provides that a rail carrier “may not discharge . . . or in any other way discriminate against” an employee for, lawfully and in good faith, reporting a hazardous safety condition or workplace injury, testifying at an FRSA proceeding, or following a doctor's treatment plan. Id. §§ 20109(a)(3), (a)(4), (b)(1)(A), and (c)(2).

         Wisconsin Central argues first that Smith-Bunge cannot raise here any claims he did not raise in his administrative complaint because of FRSA's exhaustion requirement. 49 U.S.C. § 20109(d). Smith-Bunge mentions that he complained about the condition of the road and the track crossing at some point before the September 2014 accident; Wisconsin Central asserts that he is precluded from making this argument here because it was not included in his administrative complaint. But Smith-Bunge is not contending that he was retaliated against for this purported earlier complaint about the ...

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