JOYNER, District Judge.
Presently before the Court is the Motion for Summary Judgment of Defendants Consolidated Rail Corporation and CSX Transportation, Inc. (ECF No. 22). For the following reasons, the Motion shall be granted in part and denied in part.
Randy K. Brenner ("Plaintiff") has filed suit against his employers, Consolidated Rail Corporation ("Conrail") and CSX Transportation, Inc. ("CSXT"), (collectively, "Defendants") under the Federal Employers' Liability Act ("FELA"), 45 U.S.C. §§ 51-60. Plaintiff was employed as a trackman and machine operator by Defendant Conrail from April 1976 until June 1999, and by Defendant CSXT from June 1999 though the present.
On April 13, 2009, Plaintiff filed a complaint alleging that in the course of his employment on the railroad he "was exposed to excessive and harmful cumulative trauma to his knees due to the repetitive climbing, bending, stooping and walking on uneven or unleveled ballast." (Compl. ¶ 9, ECF No. 1.) Plaintiff further alleges that he suffers from "occupational knee injuries as a result of repetitive occupational trauma to his knees, which required left knee surgery." (Id. ¶ 10.) Plaintiff claims that his injuries were caused by Defendants' negligence in, among other things, failing to provide a safe place to work, failing to provide a timely and adequate ergonomics program, and failing to modify certain job duties in order to minimize the cumulative trauma. (Id. ¶ 12.)
When a party files for summary judgment, "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a).
The FELA "was passed in 1908 in an effort to provide a tort compensation system for railroad workers who, at that time, experienced among the highest accident rates in United States history." Hines v. Consol. Rail Corp., 926 F.2d 262, 267 (3d Cir.1991). The FELA provides that a railroad operating in interstate commerce shall be liable to any employee who is injured during his employment if
51 U.S.C. § 51. In furtherance of its humanitarian policy, courts have found that the FELA "has a more lenient standard for determining negligence and causation." Hines, 926 F.2d at 267. Indeed, "a FELA plaintiff need only present a minimum amount of evidence in order to defeat a summary judgment motion." Id. at 268 (citing Pehowic v. Erie Lackawanna R.R., 430 F.2d 697, 699-700 (3d Cir.1970)). Despite the remedial nature of the act, however, the FELA is not a workers' compensation statute. Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 543, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994). The FELA "`does not make the employer the insurer of the safety of his employees while they are on duty. The basis of his liability is his negligence, not the fact that injuries occur.'" Id. (quoting Ellis v. Union Pac. R. Co., 329 U.S. 649, 653, 67 S.Ct. 598, 91 L.Ed. 572 (1947)).
Accordingly, to prevail on a claim under the FELA, a plaintiff must prove four elements: (1) the defendant is a common carrier by railroad engaged in interstate
Defendants argue that they are entitled to summary judgment on three grounds: (1) Plaintiff cannot succeed on the merits of his claims because he has no admissible expert evidence of causation; (2) Plaintiff's claims are time-barred; and (3) Plaintiff's claim that his knee injuries were caused by walking on uneven ballast is precluded by federal law. We will discuss each argument in turn.
Defendants argue that Plaintiff's treating physician, Dr. Richard M. Miller, cannot testify as an expert witness in this case because his expert report does not conform to the requirements of Federal Rule of Civil Procedure 26(a)(2)(B). Defendants argue in turn that without Dr. Miller's expert testimony Plaintiff cannot establish the causation element of his FELA claims. Plaintiff responds that Dr. Miller's expert narrative satisfies Rule 26(a)(2)(B)'s requirements and that, even if Dr. Miller's testimony were disqualified, Plaintiff can establish causation with evidence from an expert in the field of ergonomics.
Federal Rule of Evidence 702 governs the standards for admitting testimony by experts and provides that "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge skill experience, training, or education, may testify thereto in the form of an opinion or otherwise." Rule 702 further instructs that an expert witness may testify if (1) his testimony is based upon sufficient facts or data; (2) his testimony is the product of reliable principles and methods; and (3) he has applied the principles and methods reliability to the facts of the case.
Procedurally, parties must disclose the identity of any expert witness expected to be used at trial and must provide a written report prepared and signed by the expert. Fed.R.Civ.P. 26(a)(2)(A), (B).
(Dr. Miller Report 3, Sept. 23, 2008, ECF No. 22, Ex. I.) Dr. Miller notes that "the patient continues to have knee pain and may have difficulty with some aspects of his work because of that." (Id.)
We will not exclude Dr. Miller's testimony on the basis of Rule 26(a)(2)(B). Dr. Miller is a treating physician and orthopedic surgeon whose expert qualifications are not being challenged. For the time being, we find that Defendants' objections go to the weight, not the admissibility, of Dr. Miller's opinion testimony.
In their reply brief, Defendants also argue that Dr. Miller's testimony should be deemed unreliable under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). As the record now stands, we cannot make such a determination. However, we will entertain an appropriate motion after hearing the relevant testimony and will also consider an appropriate curative instruction to the jury.
In response to Plaintiff's contention that his ergonomic expert can provide the necessary causation evidence, Defendants argue that Plaintiff's proposed expert, Ellen Rader Smith, is not qualified to give a medical causation opinion. We agree.
In FELA cases, courts have generally found that expert medical testimony is necessary to establish causation of cumulative trauma and repetitive stress injuries. See Myers v. Ill. Cent. R.R. Co., 629 F.3d 639, 643 (7th Cir.2010) ("For most cumulative trauma injuries, courts follow the general principle that a layman could not discern the specific cause and thus they have required expert testimony about causation."); Brooks v. Union Pac. R.R. Co., 620 F.3d 896, 899 (8th Cir.2010) (finding that because the plaintiff's traumatic lower back injury "had no obvious origin, expert testimony is necessary to establish even that small quantum of causation required by FELA" (internal quotation marks omitted)); McCann v. Ill. Cent. R.R., 711 F.Supp.2d 861, 872 (C.D.Ill.2010) (requiring expert testimony to prove causation of carpal tunnel syndrome and degenerative disk injury); see also Wills v. Amerada Hess Corp., 379 F.3d 32, 46 (2d Cir.2004) ("[W]here an injury has multiple potential etiologies, expert testimony is necessary to establish causation, even in view of plaintiff's reduced burden to prove causation."). Smith is not a physician and is therefore unqualified to provide such an opinion.
Defendants argue that summary judgment should be granted in their favor because Plaintiff filed his complaint more than three years after his cause of action accrued and his claim is therefore barred by FELA's statute of limitations. Plaintiff responds that "[t]here is no medical record or evidence of any kind which would indicate that the knee pain was chronic or significant until Plaintiff began treating with Dr. Miller in October of 2006, well within the statute of limitations." (ECF No. 27 at unnumbered 9.)
Under the FELA's statute of limitations, an action must be "commenced within three years from the day the cause of action accrued." 45 U.S.C. § 56. "When an employee is injured in a traumatic incident, determination of the beginning of the limitations period generally presents little difficulty." Kichline v. Consol. Rail Corp., 800 F.2d 356, 358 (3d Cir.1986). By contrast, "[w]hen the injury... is an occupational disease that has an indefinite beginning and progresses insidiously over many years, the statute of limitations, particularly the statutory accrual factor, becomes more difficult to measure." Id. In such cases, the Third Circuit Court of Appeals has held that "the statute of limitations begins to run when the employee becomes aware of his disease and its cause." Id.; see also Urie v. Thompson, 337 U.S. 163, 170, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949) (finding in the case of a plaintiff exposed to silica dust that "the afflicted employee can be held to be injured only when the accumulated effects of the deleterious substance manifest themselves" (internal quotation marks and citations omitted)). Plaintiffs have "an affirmative duty to exercise reasonable diligence and investigate the cause of a known injury." Matson v. Burlington N. Santa Fe R.R., 240 F.3d 1233, 1235 (10th Cir.2001); see also Tolston v. Nat'l R.R. Passenger Corp., 102 F.3d 863, 866 (7th Cir.1996) ("At some point, persons with degenerative conditions have a duty to investigate cause." (citing Aparicio v. Norfolk & W. Ry. Co., 84 F.3d 803, 814-15 (6th Cir.1996))).
Here, the evidence of record establishes that a genuine dispute exists as to the time that Plaintiff discovered his injuries and their causes. Plaintiff filed his complaint on April 13, 2009. Therefore, to avoid the FELA time bar, Plaintiff's claim must have accrued after April 13, 2006. Defendant points to medical records and Plaintiff's deposition testimony to show that prior to April 2006—specifically, in June 1990 and March 2001—Plaintiff complained to his treating physician, Daniel Berger, M.D., of right knee pain. (Pl.'s Dep. 87:2-89:2, Apr. 22, 2010, ECF No. 22, Ex. C; Dr. Berger's Medical Rs., ECF No. 22, Ex. L; Dr. Berger Dep. 16:17-20:24, Oct. 5, 2010, ECF No. 22, Ex. M.) Plaintiff argues, however, that this evidence is not enough to show an absence of dispute regarding the timing of the accrual of Plaintiff's knee injuries. Plaintiff also points generally to "Plaintiff's medical records and testimony [that] indicate that he began suffering from the right knee pain one and a half to two months prior to the initial October 2006 visit; which is still well within the statute of limitations in this matter."
Drawing all reasonable inferences in favor of Plaintiff, we find that there is a genuine dispute on the issue of when Plaintiff's injury manifested. The record, when read in the light most favorable to Plaintiff, suggests that Plaintiff's 1990 and 2001 complaints were isolated incidents occurring years apart and years before the injuries that are the subject of this case. Other than Dr. Berger's testimony that he "suspect[s] that there is a relationship to ongoing pathology" with regard to Plaintiff's knee problems over the years, there is no evidence that these prior injuries were anything but isolated and intermittent episodes. (Dr. Berger Dep. 25:20-26:5, ECF No. 22, Ex. M.) It will be a question for the jury whether Plaintiff was or should have been aware of his knee condition prior to April 13, 2006, and whether Plaintiff exercised reasonable investigative diligence.
Additionally, there is the question of whether and when Plaintiff knew or should have known that his pain was work related. There is no indication in Plaintiff's medical records that Plaintiff's 1990 or 2001 knee complaints were ever associated with his railroad work. Defendants point to a carpal tunnel screening and signed release from 1999 to show that "Plaintiff was arguably aware, no later than April of 1999, of the possibility of seeking legal recourse against the Railroads for injuries believed to be sustained through his work." (ECF No. 27 at 26.) We cannot find that no genuine dispute exists on this issue based on this evidence.
Accordingly, we will deny Defendants' motion for summary judgment on the statute of limitations grounds.
Finally, Defendants argue that to the extent that Plaintiff alleges that his knee injuries were caused by uneven ballast stone, his claim is precluded by the Federal Railway Safety Act ("FRSA"), 49 U.S.C. § 20101 et seq., and should be dismissed with prejudice.
The purpose of the FRSA "is to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents." 49 U.S.C. § 20101. Under the FRSA, the Secretary of Transportation has authority to "prescribe regulations and issue orders for every area of railroad safety." 49 U.S.C. § 20103(a). In addition, the FRSA contains an express preemption provision, under which "a plaintiff can bring an action under state law unless the Secretary has prescribed a regulation or issued an order `covering the subject matter of the State requirement.'" Nickels v. Grand Trunk W. R.R., 560 F.3d 426,
Here, Plaintiff seeks to bring a negligence claim premised in part upon alleged negligent exposure to "excessive and harmful cumulative trauma to his knees due to ... walking on uneven or unleveled ballast." (Compl. ¶ 9, ECF No. 1.) The Secretary of Transportation has prescribed the following regulation on ballast:
49 C.F.R. § 213.103. We must determine whether this regulation substantially subsumes the subject matter of Plaintiff's claim.
As yet there is no binding authority in the Third Circuit on this issue. However, a district court judge in the Eastern District of Pennsylvania has held that claims relating to the nature and size of ballast are precluded by the FRSA. See McCain v. CSX Transp., Inc., 708 F.Supp.2d 494, 504 (E.D.Pa.2010) (finding that "Plaintiff's
We are persuaded, nonetheless, by the reasoning of the Sixth Circuit Court of Appeals' 2009 decision, Nickels v. Grand Trunk Western Railroad, 560 F.3d 426 (2009). In Nickels, the plaintiffs brought claims under the FELA arguing that their railroad employers had "failed to provide a safe working environment by using large mainline ballast—instead of smaller yard ballast—underneath and adjacent to tracks receiving heavy foot traffic" and that they suffered permanent injuries as a result. Id. at 428. The Sixth Circuit held, first, that "a FELA claim is precluded if the same claim would be preempted by the FRSA if brought as a state-law negligence action." Id. at 429-30. Turning to the question of whether the plaintiffs' claim would be preempted, the Sixth Circuit began by examining the regulation governing ballast. Id. at 430-31 (citing 49 C.F.R. § 213.103). The court observed that "[r]ather than prescribing ballast sizes for certain types or classes of track, the regulation leaves the matter to the railroads' discretion so long as the ballast performs the enumerated support functions. In this way, the regulation substantially subsumes the issue of ballast size." Id. at 431. Therefore, the court held that 49 C.F.R. § 213.103 covered the issue of ballast size and precluded the plaintiffs' FELA claims. Id. at 433. However, the court noted that the plaintiffs had not brought claims alleging negligence "in the railroads' use of oversized ballast in areas completely separate from those where track stability and support were concerned." Id. at 432; id. at 433 ("Even to the extent that the plaintiffs argue oversized ballast was used `along,' `adjacent to,' or `parallel to' the track, they do not contend that the ballast in those areas was not being used for stability under § 213.103.").
Here, Plaintiff alleges that the cumulative trauma to his knees was caused by "walking on uneven or unleveled ballast." (Compl. ¶ 9, ECF No. 1.) Plaintiff clarifies in his response to Defendants' motion for summary judgment that "Plaintiff's claims are unrelated to the ballast size in connection with supporting and providing drainage for the track itself." (ECF No. 27 at unnumbered 14.) We have little information about the nature of Plaintiff's claims concerning ballast. However, a perusal of the expert report of Plaintiff's ergonomic expert reveals the following:
(Smith Report 10, ECF No. 29, Ex. A.) This analysis suggests that Plaintiff's claims in fact relate almost entirely to track ballast.
We hold that to the extent that Plaintiff's claims are predicated upon allegations of negligence regarding the nature and size of ballast used for track stability, support, and drainage—including mainline, secondary, and yard track—such claims are precluded by 49 C.F.R. § 213.103. We will grant summary judgment for Defendants on such claims. We will allow Plaintiff to pursue his ballast-related claims only to the extent that Plaintiff's claims relate to ballast being used in areas completely separate from those where track support, stability, and drainage are concerned.
For the reasons stated above, Defendants' Motion for Summary Judgment is granted in part and denied in part. An appropriate order will follow.
Nickels v. Grand Trunk W. R.R., 560 F.3d 426, 428 (6th Cir.2009).
(A) has failed to comply with the Federal standard of care established by a regulation or order issued by the Secretary of Transportation (with respect to railroad safety matters), or the Secretary of Homeland Security (with respect to railroad security matters), covering the subject matter as provided in subsection (a) of this section;
(B) has failed to comply with its own plan, rule or standard that it created pursuant to a regulation or order issued by either of the Secretaries; or
(C) has failed to comply with a State law, regulation, or order that is not incompatible with subsection (a)(2).
49 U.S.C. § 20106(b)(1). In turn, subsection (a)(2) provides in full:
(A) is necessary to eliminate or reduce an essentially local safety or security hazard;
(B) is not incompatible with a law, regulation, or order of the United States Government; and
(C) does not unreasonably burden interstate commerce.
49 U.S.C. § 20106(a)(2).
