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Krause v. CSX Transp.

United States District Court, N.D. New York

November 20, 2013

DENNIS F. KRAUSE, Plaintiff,
v.
CSX TRANSPORTATION, Defendants

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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For Plaintiff: MARSHALL P. RICHER, ESQ., OF COUNSEL, FINKELSTEIN & PARTNERS, Albany, NY.

For Plaintiff: SAMUEL ABLOESER, ESQ., OF COUNSEL, WILLIAMS CUKER BEREZOFSKY, LLC, Philadelphia, PA.

For Defendant: LAWRENCE R. BAILEY, Jr., ESQ., OF COUNSEL, ECKERT SEAMANS CHERIN & MELLOTT, LLC, White Plains, NY.

OPINION

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DECISION and ORDER

HON. GLENN T. SUDDABY, United States District Judge.

Currently before the Court, in this FELA action filed by plaintiff, Dennis F. Krause (" Plaintiff" ) are a motion for summary judgment by defendant, CSX Transportation (" Defendant" ), a motion for partial summary judgment by Plaintiff, and a motion in limine to preclude certain expert testimony by Defendant. See Dkt. Nos. 29, 30, and 28, respectively. For the reasons set forth below, Defendant's motion for summary judgment is denied, Plaintiff's motion for partial summary judgment is denied, and Defendant's motion in limine is granted.

I. RELEVANT BACKGROUND

A. Plaintiff's Claim

Generally, Plaintiff's Complaint asserts a claim to recover damages from Defendant for personal injuries under the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq . (" FELA" ). ( See generally Dkt. No. 1 [Pl.'s Compl.].)

More specifically, Plaintiff alleges that on February 19, 2009, while performing his duties as a carman employed by Defendant at its railroad yard in Selkirk, New York, he was injured when he fell off of a railcar and struck the ground. ( Id., at ¶ 5.) Plaintiff alleges that as a result, he sustained injuries to his right knee and back. Plaintiff further alleges that his injuries were caused by the negligence of Defendant.

B. Recitation of Undisputed Facts

The following material facts[1] are gleaned from Defendant's Local Rule 7.1 Statements

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of Undisputed Material Facts and Plaintiff's response thereto ( see Dkt. No. 29-20 [Def.'s Rule 7.1 Statement]; Dkt. No. 33 [Pl.'s Resp. to Def.'s Rule 7.1 Statement]) as well as Plaintiff's Local Rule 7.1 Statements of Undisputed Material Facts and Defendant's response thereto ( see Dkt. No. 30 [Pl.'s Rule 7.1 Statement]; Dkt. No. 32-13 [Def.'s Resp. to Pl.'s Rule 7.1 Statement]). Local Rule 7.1(a)(3) of the Local Rules of Practice for this Court requires that the nonmoving party file a response to the moving party's Statement of Material Facts, which admits or denies each of the moving party's factual assertions in matching numbered paragraphs, and supports any denials with a specific citation to the record where the factual issue arises. See N.D.N.Y. L. R. 7.1(a)(3). It further provides that, to the extent that the nonmoving party fails to do so, the facts asserted in the movant's Statement of Material Facts will be deemed admitted, as long as they are supported by the record. Id.

Leading up to the February 19, 2009 accident underlying this action, Plaintiff worked for 38 years as a carman, inspected thousands of railcars and had climbed up and on thousands of railcars in the process of inspecting them. On February 19, 2009, around 2:00 p.m., Plaintiff fell from a railcar. Plaintiff alleges that, as of the time of the accident, he had not yet had a lunch break during his shift.

In 2009, carmen employed by Defendant were part of the Transport Workers Union and worked under the collective bargaining agreement for the Brotherhood of Railway Carmen. Under the agreement in place on February 19, 2009 (" the Agreement" ), the standard shift was eight hours. Up to three shifts could be employed on a given day. The timing of a lunch break varied depending on the number of shifts employed. If three shifts were employed, lunch was to be given within the limits of the fifth hour of the shift. On February 19, 2009, three carmen shifts were employed. Lunch break was typically twenty minutes. However, under Rule 3 of the Agreement, carmen could be asked to work through lunch, as long as they were compensated for that time and allowed to procure lunch afterward.[2]

On the day of the accident, Plaintiff's shift began at 7:00 a.m. and ended at 3:00 p.m. As was his usual habit, Plaintiff arrived for work that day at 6:30 a.m. On his way to work, Plaintiff would typically stop at a convenience store and buy coffee or a bun. Plaintiff testified that he routinely stopped to get coffee and a bun or have a bowl of cereal, but he could not remember what in particular he ate on the morning of the accident.

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On an average day, with the help of another carman, Plaintiff typically inspected three to four trains. On the morning of February 19, 2009, after attending a job briefing and receiving his assignment for the day, Plaintiff began his inspections with his regular teammate, Vic Jurevis. At some point, either during the break between the first and second train, or during the break between the second and third train, Plaintiff and Mr. Jurevis went to the yard shanty to input bad orders into the system. Although Plaintiff could have eaten something at that time, Plaintiff claims he did not do so. During that same window -- between the first and third trains -- Plaintiff and Mr. Jurevis received a call from senior general foreman Jeff Hensley, requesting a meeting with them in the west end receiving yard. After completing the train they were working, Plaintiff and Mr. Jurevis met Mr. Hensley as requested. According to Mr. Hensley, the meeting lasted probably thirty to forty-five minutes, during which time both Plaintiff and Mr. Jurevis ate and drank coffee. According to Plaintiff, the meeting lasted between ten and fifteen minutes. Also, Plaintiff testified that he hadn't had anything to eat between the time of his morning coffee and bun or cereal and the time of the accident. Likewise, Mr. Jurevis testified that he hadn't had anything except coffee between the time he reported to work and the time of the accident.[3] In any event, after the conclusion of their meeting with Mr. Hensley, Plaintiff and Mr. Jurevis began working on the third train.

While working on the third train, Plaintiff asked another carman, Derek Douglas, to call Mr. Hensley or the general foreman, Matt Sams, to request help so that Plaintiff and Mr. Jurevis could take a lunch break. According to Mr. Douglas, this conversation took place sometime between noon and 1 p.m. Shortly after, Mr. Douglas radioed back to Plaintiff that Mr. Sams had spoken with Mr. Hensley, and Mr. Hensley had sad he considered their earlier meeting as their lunch break, they would not be relieved for lunch, and that they were to continue working the trains. Therefore, Plaintiff and Mr. Jurevis began to work the fourth train.

Plaintiff began working at the west end of the train. While performing his inspections, Plaintiff came upon a series of tank cars used for carrying dangerous materials, which did not have the required placards denoting the contents of the tanks. As a result, Plaintiff began writing up bad order tickets for those cars. As he was writing a bad order ticket for one of the cars, Plaintiff crossed over the tank car to tag the other side, since federal law requires both sides be tagged. As he was returning, Plaintiff fell to the ground. Specifically, Plaintiff testified that he got light-headed, and the next thing he knew, he was on the ground. Plaintiff also testified that prior to fainting, he did not feel like he was going to faint and did not tell anyone that he felt like he might faint. This was the first time Plaintiff ever fainted, even though he missed meals before. Consequently, Plaintiff never told Mr. Sams, Mr. Hensley or any other of Defendant's

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managers that he was prone to fainting if he did not eat.

As Plaintiff was getting hold of himself, he called Mr. Jurevis on the radio and explained what happened. These events occurred around 2:00 p.m. Upon getting up from the ground, Plaintiff experienced pain in his right leg, and thus sat down on the cut lever of the tank car. While Plaintiff was sitting there, Tommy Rosario, a fellow rail worker, drove up and helped Plaintiff get into the truck. Mr. Rosario drove Plaintiff to the east end gate, which was chained shut. Consequently, Mr. Rosario turned around and drove to the west end gate. When they arrived at the west end gate, they found an ambulance waiting. After Plaintiff informed the EMS personnel that his right knee hurt, he was put on a stretcher, loaded into the ambulance, and taken to the hospital.

Prior to the date of the accident, Plaintiff had a history of right knee problems. Plaintiff was treated at Capital Region Orthopaedics from 2002 through 2006, and then again after the accident on February 19, 2009. On April 3, 2006, Dr. Jeffrey Lozman, M.D. noted that x-rays showed significant degenerative change in the right knee and opined that Plaintiff " may come to knee replacement [at] some point in the future." (Dkt. No. 32-9 [Ex. G to Decl. of Lawrence R. Bailey, Jr., July 30, 2012].) In a report dated November 30, 2011, Dr. Lozman noted that another doctor in his medical group, Dr. Striker, saw Plaintiff on February 21, 2009, two days after the accident. Dr. Striker noted that Plaintiff " sustained a twisting injury to his knee and fell," and thereafter was " seen at St. Peter's Hospital for evaluation since he lost consciousness." (Dkt. No. 30-4 [Ex. B. to Bailey Decl.].) Plaintiff eventually underwent a total right knee replacement on September 1, 2009. On September 18, 2009, Dr. Lozman clarified that Plaintiff's " operative necessity for total knee replacement was hastened by the traumatic injury that he had at work, (sic) certainly this was not the cause of his arthritis." (Dkt. No. 32-10 [Ex. H to Bailey Decl.].)

On April 4, 2012, Plaintiff was evaluated by Dr. Barry Constantine, M.D. at the request of Defendant. Dr. Constantine, an orthopedic surgeon, reviewed Plaintiff's medical records and opined that " it is apparent that [Plaintiff] has significant and advanced degenerative arthritic change in his right knee which well antedated the industrial accident of February 19, 2009." (Dkt. No. 30-5, at 5 [Ex. C to Pl.'s Mem. of Law].) Dr. Constantine opined that " [Plaintiff's] right total knee replacement was necessitated as a result of both the severe pre-existing and progressive arthritis as well as the industrial accident of February 19, 2009." ( Id., at 6.) Accordingly, Dr. Constantine noted that he " would apportion two-thirds of the need for the right total knee replacement to the pre-existing arthritis and one-third to the industrial accident of February 19, 2009." ( Id.) Finally, Dr. Constantine stated, " Due to the advanced degenerative arthritis and irrespective of the February 19, 2009 incident, in my medical opinion [Plaintiff] would have eventually required a right total knee replacement." ( Id.)

In its response to Plaintiff's Rule 7.1 Statements, Defendant asserts additional statements of fact that Plaintiff has not opposed. Specifically, Defendant asserts that there was no accident as described by Plaintiff on February 19, 2009 and that Plaintiff did not pass out, faint or fall while inspecting the tank cars on February 19, 2009. ( See Dkt. No. 32-13, at ¶ ¶ 10-12 [Resp. to Pl.'s Statement of Material Facts].) In support of these statements, Defendant cites Plaintiff's testimony that he got light-headed and the next thing he knew he was on the ground, that he does

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not know if he blacked out completely, and that he has been over-hungry before but has never fainted. In addition, Defendant cites Dr. Lozman's April 3, 2006 treatment note that Plaintiff reported that his right knee had occasionally kicked out on him and almost sent him into a moving train. Finally, Defendant cites Dr. Constantine's note that there is no evidence or documentation indicating whether Plaintiff actually passed out. All of this evidence merely creates factual questions for a jury to decide about whether Plaintiff's version of events are true. Accordingly, because the record does not support Defendant's conclusory additional Rule 7.1 statements, the Court will not deem them admitted.

C. Expert Report of Leslie R. Hinds, Ph.D.

In opposing Defendant's motion for summary judgment, Plaintiff relies in part on the report of his proffered expert, Leslie R. Hinds, Ph.D. According to Plaintiff, Dr. Hinds is an expert in railroad safety with more than 48 years of experience in the railroad industry. In his report, Dr. Hinds sets forth eight separately numbered opinions and corresponding conclusions. Defendant seeks to preclude each of those opinions and conclusions except the first and third, which, Defendant asserts, have been withdrawn by Plaintiff.

Generally, Defendant challenges the following numbered opinions and/or conclusions of Dr. Hinds.

(2) As a full member of the Association of American Railroads (" AAR" ), Defendant has the obligation, responsibility and ability to develop safe work practices and safe equipment for use by its employees and other personnel working in railroad transportation. ( See Dkt. No. 28-1, at 27 [Ex. A to Def.'s Mot. in Limine ].)

(4) On February 19, 2009, Defendant supervisors Jeffrey Hensley and Matthew Sams were devoid of concern for the health and welfare of Plaintiff and Victor Jurevis when they, as supervisors, ordered Plaintiff and Mr. Jurevis to work through their lunch break. When they ordered these employees to work through their lunch break, they changed the working conditions and endangered their well being. They also failed to hold a job briefing which they were required to do because they were changing their working conditions. The injury to Plaintiff was a result of his supervisors' negligent actions when they refused to allow him to eat lunch. The injury was reasonably foreseeable and preventable. ( See id., at 28.)

(5) An employee who works under these conditions will become fatigued and his stress level will increase. As a result, it is vital that railroad workers such as Plaintiff obtain timely nourishment in order to maintain their strength and be able to properly do their job. ( See id., at 29.)

(6) On February 19, 2009, Plaintiff did not violate any rules and regulations of Defendant, AAR or the Federal Railroad Administration while performing his duties inspecting rail cars. Plaintiff was dressed properly and ...


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