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Miller v. BNSF Railway Co.

United States District Court, D. Colorado

May 9, 2017

BNSF RAILWAY COMPANY, a Delaware Corporation, Defendant.


          William J. Martinez United States District Judge

         In this 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.

         I. BACKGROUND

         The 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.)

         On 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 5.)[1] 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.)[2] 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.)

         This lawsuit followed, in which Plaintiff alleges that the injury to his shoulder and resulting damages are the result of Defendant's negligence.


         Summary 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).

         A fact 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).

         III. ANALYSIS

         A. Evidentiary Issues

         Initially, 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.)

         Defendant 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 omitted).

         While 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 judgment.[3]

         Second, 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.

         B. FELA Background Law

         Under 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 ...

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