United States District Court, D. Colorado
ORDER GRANTING IN PART DEFENDANT'S MOTION FOR
William J. Martinez United States District Judge
case brought pursuant to the Federal Employer's Liability
Act, 45 U.S.C. §§ 51 et seq.
(“FELA”), Plaintiff George Miller
(“Plaintiff”) seeks to recover from Defendant
BNSF Railway Company (“Defendant” or
“BNSF”) for alleged negligence leading Plaintiff
to be injured while employed by BNSF. Now before the Court is
Defendant's Motion For Summary Judgment. (ECF No. 45.) As
explained below, while Plaintiff brings a single negligence
claim, several of his distinct theories of negligence are
unsupported by the evidence and/or foreclosed as a matter of
law, and Defendant's Motion is therefore granted in part.
following facts are undisputed unless attributed otherwise.
Plaintiff was employed by Defendant beginning May 16, 2011,
and worked in the “Maintenance of Way Department,
” which maintains Defendant's railroad tracks. (ECF
No. 45 at 2, ¶ 1.) He worked as a section laborer, and
eventually as a truck driver. (Id. ¶ 3.) As a
truck driver, he had the same responsibilities as a laborer
when on a jobsite. (Id.) In both positions, his work
included removing railroad spikes, which he did frequently,
depending on the specific job. (Id. at 3, ¶ 4.)
October 24, 2012, Plaintiff was tasked to remove several
railroad spikes at a location in Golden, Colorado, using a
tool called a “claw bar.” (See Id. at 4,
¶¶ 6, 9, 10; see also ECF No. 61 at
After Plaintiff kicked the bar onto one spike, and after
feeling some tension on it, he then “pulled with
everything he had” on the bar, “right off the
get-go.” (ECF No. 45 at 3, ¶ 6; ECF No. 53 at 11;
ECF No. 45-1 at 27-28.) The spike came loose and the claw bar
hit Plaintiff in the shoulder. (ECF No. 45 at 3, ¶ 6;
ECF No. 53 at 11; see also ECF No. 61 at 5-6.) In
his deposition, Plaintiff testified that the spike
“fell out” and was “too easy” to
remove. (ECF No. 45-1 at 31.)
lawsuit followed, in which Plaintiff alleges that the injury
to his shoulder and resulting damages are the result of
judgment is appropriate only if there is no genuine issue of
material fact and the moving party is entitled to judgment as
a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Henderson v.
Inter-Chem Coal Co., Inc., 41 F.3d 567, 569 (10th Cir.
1994). Whether there is a genuine dispute as to a material
fact depends upon whether the evidence presents a sufficient
disagreement to require submission to a jury or, conversely,
is so one-sided that one party must prevail as a matter of
law. Anderson v. Liberty Lobby, 477 U.S. 242, 248-49
(1986); Stone v. Autoliv ASP, Inc., 210 F.3d 1132
(10th Cir. 2000).
is “material” if it pertains to an element of a
claim or defense; a factual dispute is “genuine”
if the evidence is so contradictory that if the matter went
to trial, a reasonable jury could return a verdict for either
party. Anderson, 477 U.S. at 248. The Court must
resolve factual ambiguities against the moving party, thus
favoring the right to a trial. Houston v. Nat'l Gen.
Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987).
Defendant argues that in its summary judgment analysis the
Court should not consider any of the anticipated testimony or
opinions of Plaintiff's expert, Mr. Joe Lydick. (ECF No.
58 at 12-13.)
first argues that the copy of Mr. Lydick's written expert
report docketed by Plaintiff (ECF No. 53-1) is “not
authenticated and is therefore not admissible.”
(Id. at 12.) This argument mis-apprehends the
relevant considerations at the summary judgment phase. In
opposing summary judgment, a party “may object that the
material cited to support or a dispute a fact cannot be
presented in a form that would be admissible in
evidence.” Fed.R.Civ.P. 56(c)(2). However, “[a]t
the summary judgment phase, evidence need not be submitted in
a form that would be admissible at trial, ” only
“the content or substance of the evidence must be
admissible.” Argo v. Blue Cross & Blue Shield
of Kansas, Inc., 452 F.3d 1193, 1199 (10th Cir. 2006).
It is only necessary for the party submitting the evidence to
show “that it will be possible to put the information,
the substance or content of the evidence, into an admissible
form.” Brown v. Perez, 835 F.3d 1223, 1232
(10th Cir. 2016) (citation and internal quotation marks
it is indeed strange that Plaintiff's attorney has
docketed an unsigned copy of Mr. Lydick's report, the
question is not whether the report itself is admissible but
whether its contents can be presented in an admissible form,
namely, through Mr. Lydick's in-court testimony. See,
e.g., Humphreys & Partners Architects, L.P. v.
Lessard Design, Inc., 790 F.3d 532, 539 (4th Cir. 2015)
(“the admissibility of the reports themselves is
immaterial because . . . the experts . . . would testify to
the matters set forth in [their respective] report[s].”
(brackets in original)). Defendant's objection to the
docketed copy of his report has no bearing on whether Mr.
Lydick can testify at trial, or whether his anticipated
testimony raises genuine issues of fact precluding summary
Defendant relies on the arguments in its separate Motion to
Strike Mr. Lydick's testimony under Federal Rule of
Evidence 702, which the Court has ruled on by separate order.
(ECF No. 91.) Although the Court has excluded some of Mr.
Lydick's testimony, this is primarily on the basis that
his opinions are irrelevant because they relate only to
factual theories of negligence that are not viable for
reasons explained below. (See Id. at 8-9.)
In other words, Mr. Lydick's testimony is
primarily limited not because it is intrinsically
inadmissible under Rule 702, but as a consequence of the
summary judgment analysis in this Order. Given this
interrelationship of the issues, the Court considers Mr.
Lydick's testimony here.
FELA Background Law
FELA, Railroads are liable to their employees for injuries
sustained in the course of employment as a result of the
railroad's negligence. FELA provides:
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 ...