Buckner v. Union Pacific Railroad Company

2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 RORY J. BUCKNER, Case No. 3:22-cv-00479-MMD-CLB 7 Plaintiff, ORDER v. 8 UNION PACIFIC RAILROAD COMPANY, 9 Defendant. 10 11 I. SUMMARY 12 Plaintiff Rory J. Buckner sued his employer, Union Pacific Railroad Company, 13 under the Federal Employers’ Liability Act, 45 U.S.C. §§ 51, et seq. (“FELA”), for damages 14 resulting from a Lisfranc injury he sustained while working as a switchman in Defendant’s 15 railroad yard. (ECF No. 2.) Before the Court is Defendant’s motion for summary judgment 16 (ECF No. 76 (“Motion1”)), along with two motions to exclude testimony of Plaintiff’s 17 experts, Alan Pagels and Brandon L. Ogden. (ECF Nos. 77, 81 (collectively, “Motions to 18 Exclude2”).) As explained below, the Court will deny Defendant’s Motion. The Court will 19 also deny the Motions to Exclude. 20 II. BACKGROUND3 21 On the evening of November 3, 2019, Plaintiff suffered a severe foot injury while 22 working as a switchman, or trainman, in Defendant’s rail yard in Sparks, Nevada. (ECF 23 Nos. 2 at 2; 76-1 at 8.) Plaintiff and his colleague, Jake Schulthies, were remotely4 moving 24 25 1Plaintiff responded (ECF No. 91) and Defendant replied (ECF No. 96). 26 2Plaintiff responded (ECF No. 90) and Defendant replied (ECF No. 94). 27 3The following facts are undisputed unless otherwise noted. 28 4Plaintiff and Schulthies were moving railcars without locomotive engineers by operating wearable remote control boxes. (ECF Nos. 76-1 at 7; 91 at 3-4.) 2 Sparks yard and is used to build trains with cars collected from different industries. (Id.) 3 On the night of Plaintiff’s injury, Plaintiff was servicing Western Metals Recycling, a scrap 4 metal facility. (Id.) 5 Schulties operated the locomotive using a remote control, and Plaintiff would board 6 the locomotive which was moving at four miles per hour or less to disable the Positive 7 Stop Protection so that the locomotive and railcars could depart. (ECF Nos. 2 at 3; 76-1 8 at 7.) Around 7:20 p.m., while boarding a moving locomotive, Plaintiff placed his right foot 9 on the first step of the locomotive to pull himself up when his left foot stepped on 10 something on the ground. (ECF Nos. 2 at 3; 76-1 at 8.) He was able to pull himself up 11 fully on the locomotive steps, but immediately felt pain in his left foot when he put it down 12 on the step. (ECF No. 76-1 at 8.) Plaintiff did not see what he stepped on, but he believed 13 that he stepped on a railroad spike because of how it felt under his foot. (ECF Nos. 76-1 14 at 8; 91 at 5.) Plaintiff called Schulthies over the radio for help and was unable to continue 15 working. (ECF No. 91 at 5.) He reported the injury to the local manager, John McCafferty. 16 (Id.) He was diagnosed with a Lisfranc injury and Complex Regional Pain Syndrome that 17 have required extensive medical treatment, including five surgeries. (Id.) 18 Plaintiff filed his complaint on October 26, 2022, alleging a single cause of action 19 under FELA. (ECF No. 2.) 20 III. DISCUSSION 21 A. Motion for Summary Judgment 22 Defendant argues that it is entitled to summary judgment as to Plaintiff’s FELA 23 claim because Plaintiff cannot produce competent, admissible evidence that Defendant 24 acted negligently or that its negligence contributed to Plaintiff’s injury. (ECF No. 76-1 at 25 5.) As an initial matter, Plaintiff has advanced one claim and multiple theories of 26 negligence (ECF No. 2 at 3-4), and only one of Plaintiff’s theories requires sufficient 27 28 2 arguments as to Plaintiff’s theories below.5 3 FELA provides that a common carrier engaged in interstate commerce is “liable in 4 damages to any person suffering injury while he is employed by such carrier… resulting 5 in whole or in part from the negligence of any of the officers, agents, or employees of 6 such carrier[.]” 45 U.S.C. § 51. The statute was primarily enacted by Congress to address 7 the inherent risks of working on railroads and the injuries and accidents occurring thereon. 8 See Urie v. Thompson, 337 U.S. 163, 181 (1949). What constitutes negligence for 9 purposes of FELA turns upon common-law principles. Consolidated Rail Corp. v. 10 Gottshall, 512 U.S. 532, 543-44 (1994). However, “special features of this statutory 11 negligence action. . . make it significantly different from the ordinary common-law 12 negligence action.” Rogers v. Missouri Pac. R. Co., 352 U.S. 500, 509-10 (1957). The 13 FELA causation standard is different from the usual proximate cause standard, in that the 14 proper standard is whether Defendant’s “negligence played any part—no matter how 15 small—in bringing about the plaintiff’s injury.” CSX Transp., Inc. v. McBride, 564 U.S. 685, 16 698-99 (2011). 17 1. Walkway Safety6 18 Defendant argues that Plaintiff lacks sufficient evidence to prove that the walkway 19 he was working in caused or contributed to his injury because Plaintiff cannot provide 20 evidence that debris or any other hazardous condition existed in the walkway the night 21 Plaintiff was injured. (ECF No. 76 at 19.) Specifically, Defendant argues that Plaintiff’s 22 claim must fail because Plaintiff never saw what he stepped on, and he can only speculate 23 24 5Defendant’s Motions to Exclude seek to exclude testimony from Pagels and Ogden for the purposes of Defendant’s Motion and at trial. The Court’s does not consider 25 testimony from either expert in its analysis of Defendant’s Motion. 26 6The parties agree, after learning during discovery that the track Plaintiff worked on was placed in revenue service prior to 2001 thus does not fall under Nevada’s railroad 27 walkway regulations, NAC §§ 705.160, 705.171, that judgment in favor of Defendant is appropriate as to Plaintiff’s strict liability claim. (ECF Nos. 76-1 at 25; 91 at 15.) The Court 28 will grant summary judgment in favor of Defendant as to this claim. 2 implemented rules and practices regarding safety, so it has exercised reasonable care. 3 (Id. at 22.) The Court disagrees. 4 On a motion for summary judgment, the moving party’s burden is discharged by 5 showing that there is an absence of evidence to support the nonmoving party’s case. 6 Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Defendant has failed to discharge its 7 burden. Plaintiff testified in his deposition that he stepped on “something protruding up.” 8 (ECF No. 76-4 at 39.) Plaintiff proffered deposition testimony from Schulthies that scrap 9 metal and debris on the ground in the area has “always been an issue.” (ECF No. 91 at 10 7.) Plaintiff cites deposition testimony from Ray Breedlove, Defendant’s former 11 superintendent of train operations, that scrap metal and debris would accumulate on the 12 ground and Western Metals would overload cars with scrap metal. (ECF No 91-9 at 61- 13 62.) Plaintiff has presented evidence sufficient to create a genuine issue of material fact 14 as to whether the condition of the walkway contributed to Plaintiff’s injury. 15 The parties cite a factually similar case, Harris v. Illinois Cent. R. Co., 58 F.3d 1140 16 (6th Cir. 1995), wherein the defendant appealed judgment on a FELA verdict for a railroad 17 worker who was injured by stepping on debris in the walkway. There, as here, Plaintiff 18 had presented ample evidence from which a jury could infer that Defendant knew that 19 debris fell from train cars and was lax about cleaning up debris. Id. at 1143. Plaintiff need 20 not proffer evidence of a specific item of debris for a reasonable jury to conclude that 21 Defendant was negligent in keeping the walkway free of debris. 22 Citing to Harris, Defendant further claims that it is entitled to summary judgment 23 because Plaintiff has not provided evidence that the railroad had notice of hazardous 24 conditions where Plaintiff was working. Defendant argues, “[t]he appellate court’s decision 25 in Harris is inapposite because…. [i]t was known that debris would fall from cars, yet 26 several witnesses testified the yard was only cleaned up ‘about once a year,’ if ever.” 27 (ECF No. 96 at 8, citing Harris, 58 F.3d at 1143.) Defendant mischaracterizes Harris. The 28 Harris court noted that “the accounts of the witnesses varied as to whether the debris was 2 up “about once a year.” The Harris court considered testimony from the plaintiff and 3 witnesses that there “was always debris in the yard[.]” Harris, 58 F.3d at 1143. 4 Defendant’s attempt to distinguish the case fails. 5 The Court finds that Defendant is not entitled to summary judgment as to Plaintiff’s 6 walkway conditions claim because it has not shown the absence of a genuine dispute of 7 material fact. Celotex, 477 U.S. at 323. 8 2. Lighting Conditions 9 Defendant argues that it is entitled to summary judgment because Plaintiff cannot 10 support his claim that the lighting was inadequate. (ECF No. 76-1 at 27.) Defendant claims 11 that Plaintiff cannot show that Defendant failed to provide adequate lighting because 12 Plaintiff incorrectly testified in his deposition that there was no overhead lighting, there 13 were lights on buildings nearby, and Plaintiff had a functioning headlamp. (Id.) The Court 14 again disagrees. 15 As an initial matter, the Court notes that even if there was some overhead lighting, 16 there were lights on buildings nearby, and Plaintiff had a headlamp, a jury may still 17 reasonably find that the lighting may have been inadequate. Moreover, contrary to 18 Defendant’s assertion that Plaintiff’s only evidence as to lighting conditions is Plaintiff’s 19 own deposition testimony, Plaintiff offers evidence in the form of deposition testimony 20 from one of Defendant’s managers, John McCafferty, that the incident report photos were 21 taken the day after the incident because there would not have been enough visibility 22 otherwise (ECF No. 91-19 at 4-5), testimony from Schulthies that at least some of the 23 overhead lights Defendant claims illuminate the area were installed after Plaintiff’s injury 24 (ECF No. 91-4 at 37-39), and three co-worker affidavits as to the poor lighting in the area 25 (ECF No. 91 at 6). Viewing this evidence in the light most favorable to Plaintiff as the 26 27 28 2 reasonably agree with Plaintiff’s inadequate lighting theory.7 3 3. GOOME Rule 4 Defendant argues that it is entitled to summary judgment on Plaintiff’s theory that 5 Defendant was negligent for re-allowing getting on and off moving equipment (“GOOME”) 6 in 2019. Specifically, Defendant argues that Plaintiff’s expert witness testimony from 7 Brandon Ogden should be disregarded, and Plaintiff’s remaining evidence that the 8 practice is unsafe is insufficient. (ECF No. 76 at 30.) As discussed above, the Court will 9 address this argument without considering Ogden’s testimony. 10 In the FELA context, evidence of alternatives often has a significant bearing on 11 what is reasonable. Rodriguez v. Delray Connecting R. R., 473 F.2d 819, 821 (6th Cir. 12 1973) (rejecting the railroad’s argument that evidence of a different available tool was 13 irrelevant); see also Stone v. New York, C., & St. L. R. Co., 344 U.S. 407, 409 (1953) 14 (noting that alternative methods of removing ties may be considered when determining 15 whether the defendant was negligent). Plaintiff has introduced evidence of an 16 alternative—getting off standing equipment instead of moving equipment. (ECF No. 91 at 17 8-11.) Plaintiff offers a 1990 study from Defendant’s Risk Management department that 18 shows a reduction in GOOME injuries in tandem with no increased injuries from getting 19 on and off standing equipment, after Defendant banned GOOME in the late 1980s. (ECF 20 No. 91 at 9.) Plaintiff proffers evidence showing that Defendant re-permitted GOOME and 21 then banned it again in 2001 in Defendant’s company rulebook. (Id. at 10.) Defendant’s 22 rulebook labeled its prohibition on GOOME as a “Critical Rule” for which “[n]oncompliance 23 could potentially result in serious or life-threatening consequences for employees.” (ECF 24 No. 91-21 at 3.) 25 26 27 7On summary judgment, “the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 28 U.S. 242, 255 (1986). 2 Plaintiff’s evidence is insufficient. Plaintiff has provided evidence that Defendant had 3 previously banned GOOME twice due to safety concerns, and that when banned, 4 GOOME injuries decreased while standing injuries did not. Defendant counters that the 5 numbers of injuries getting off standing equipment did not increase after a prohibition of 6 GOOME does not demonstrate it is a safer alternative, and that Plaintiff has no proof that 7 GOOME presents an unreasonable risk of injury because it was once prohibited out of 8 safety concerns. (ECF No. 96 at 12.) Viewing all facts in a light more favorable to the 9 nonmoving party and drawing all reasonable inferences, a reasonable jury conclude that 10 Defendant was negligent in adopting GOOME when it knew a safer alternative existed. 11 See Anderson, 477 U.S. at 255. 12 In sum, the Court finds that Defendant is not entitled to summary judgment. 13 Genuine issues of material facts exist as to Plaintiff’s claims regarding walkway 14 conditions, lighting conditions, and Defendant’s re-adoption of GOOME to preclude 15 summary judgment. 16 B. Motions to Exclude 17 The Court now turns to Defendant’s Motions to Exclude. Defendant argues that 18 testimony of both Pagels and Ogden—Plaintiff’s railway safety experts—should be 19 excluded for the purposes of its motion for summary judgment and at trial. (ECF Nos. 77, 20 81.) 21 In Daubert, the Supreme Court held that under Federal Rule of Evidence 702, 22 scientific testimony must be reliable and relevant to be admissible. Daubert v. Merrell Dow 23 Pharms., Inc., 509 U.S. 579, 589 (1993). The Court clarified in Kumho Tire that Daubert’s 24 principles also apply to technical and specialized knowledge. Kumho Tire Co., Ltd. v. 25 Carmichael, 526 U.S. 137, 141 (1999). The trial court has “considerable leeway” in 26 deciding how to determine the reliability of an expert’s testimony and whether the 27 testimony is in fact reliable. Id. at 152. 28 2 liberal thrust of the Federal Rules and their general approach of relaxing the traditional 3 barriers to opinion testimony.” Jinro Am. Inc. v. Secure Invs., Inc., 266 F.3d 993, 1004 4 (9th Cir.), opinion amended on denial of reh’g, 272 F.3d 1289 (9th Cir. 2001) (citations 5 and internal quotation marks omitted). “An expert witness—unlike other witnesses—is 6 permitted wide latitude to offer opinions, including those that are not based on firsthand 7 knowledge or observation, so long as the expert’s opinion has a reliable basis in the 8 knowledge and experience of his discipline.” Id. (citations and internal quotation marks 9 omitted). 10 Defendant’s arguments regarding Pagels’ testimony can largely be summarized 11 as follows: Pagels relied heavily, or solely, upon Plaintiff’s deposition testimony, therefore 12 his opinions are not reliable and should be limited or excluded. Specifically, Defendant 13 argues that Pagels has no proper basis to opine as to unsafe footing conditions because 14 he relies upon Plaintiff’s statement that he stepped on something (ECF No. 77-1 at 9); his 15 opinion as to Defendant’s awareness of unsafe footing conditions is improper because it 16 is solely based on the conductor’s statement and Plaintiff’s deposition (id. at 8); and his 17 opinion that metal debris are a hazard are unsupported because he did no scientific 18 analysis (id.). 19 Pagels is a railroad safety consultant with 45 years of railroad industry experience, 20 including eight years and five months as a Track Safety Inspector and Specialist with the 21 Federal Railroad Administration (“FRA”). (ECF No. 78-2 at 3.) Pagels reviewed case 22 materials, including but not limited to Plaintiff’s deposition testimony, and other reference 23 materials including relevant federal regulations, Defendant’s handbooks, and portions of 24 the FRA’s Track Safety Standards Compliance Manual. (Id. at 6-7.) Here, contrary to 25 Defendant’s assertion that Pagels has simply taken Plaintiff’s testimony and combined it 26 with anecdotes, the Court finds it more likely than not that Pagels’ testimony has a reliable 27 basis in the knowledge and experience of his discipline. Kumho, 526 U.S. at 149; Fed. R. 28 Evid. 702. Accordingly, Pagels is permitted to opine as to these issues even if he did not 2 testimony, in addition to his specialized knowledge and experience in railway safety. 3 Defendant raises similar arguments as to Ogden. Specifically, Defendant argues 4 that Ogden’s opinion that Defendant left debris in the walkway is inadmissible because it 5 is based only on Plaintiff’s testimony (ECF No. 81-8 at 8); his opinion as to lighting 6 conditions should be excluded because it is based on Plaintiff’s testimony and he didn’t 7 conduct scientific analysis (id. at 10-11); his opinion as to Precision Scheduled 8 Railroading (“PSR”) is baseless and inadmissible (id. at 15); and his opinion that 9 Defendant failed to meet the industry standard of care should be excluded as an improper 10 legal opinion (id. at 16). 11 As above, the Court is not persuaded by Defendant’s argument that an expert’s 12 opinion is inadmissible because it is based on Plaintiff’s testimony. An expert has wide 13 latitude to offer opinions, and opinions need not be based on firsthand observation to be 14 sufficiently reliable. Ogden has 17 years of experience in the industry as a certified 15 switchman/conductor or railroad operations manager with BNSF and as a railroad 16 operations consultant. (ECF No. 82-2 at 31-32.) He has worked as an expert witness and 17 consultant in railroad operations since 2016. (Id.) In authoring his report, Ogden reviewed 18 case materials, Defendant’s materials including safety rules and operating rules, 19 materials from Defendant and other railroads, and reports and studies from the FRA and 20 other organizations. (Id. at 4-5.) The Court finds that Ogden’s testimony has a basis in 21 this training and experience. Accordingly, the Court does not find convincing Defendant’s 22 arguments as to walkway conditions, lighting conditions, and Defendant’s decision to 23 adopt PSR. 24 Defendant additionally argues that Ogden’s opinion as to GOOME should be 25 excluded because he did not conduct scientific analysis and did not use Defendant’s 26 recent injury statistics. (ECF No. 81-1 at 12-14). Defendant suggests Mr. Ogden “could, 27 in theory, testify that the practice of getting on moving equipment presents a risk of injury 28 if such a claim were supported by facts and data, here, Ogden offers only unsupported 2 (ECF No. 81-1 at 14.) Plaintiff counters that Ogden’s testimony is based on “over one- 3 hundred documents from [Ogden’s] GOOME reference library, including rules, internal 4 memoranda, ergonomic studies, statistical analysis and videos from various freight 5 railroads including Union Pacific,” and argues that to the extent Defendant claims that 6 Plaintiff’s expert should examined Defendant’s more recent statistics, that is a jury 7 question. (ECF No. 90 at 10.) The Court agrees with Plaintiff. 8 The Court finds that Pagels’ and Ogden’s expert opinions are sufficiently reliable 9 and based in the knowledge and experience of their disciplines and would be helpful to a 10 jury. It would therefore be improper for the Court to exclude their testimony on Defendant’s 11 motion. See Elosu v. Middlefork Ranch Inc., 26 F.4th 1017, 1024 (9th Cir. 2022) (“The 12 Court is a gatekeeper, not a fact finder”) (quoting Primiano v. Cook, 598 F.3d 558, 568 13 (9th Cir. 2010)). To the extent that Defendant argues that the expert witnesses relied too 14 heavily upon certain types of evidence—e.g., upon Plaintiff’s deposition testimony, or that 15 Ogden should have referenced Defendant’s more recent injury statistics—Defendant may 16 cross-examine these witnesses and the jury will assess the credibility and weight of their 17 testimony. See id. The Court thus denies Defendant’s Motions to Exclude. 18 IV. CONCLUSION 19 The Court notes that the parties made several arguments and cited to several 20 cases not discussed above. The Court has reviewed these arguments and cases and 21 determines that they do not warrant discussion as they do not affect the outcome of the 22 motions before the Court. 23 It is therefore ordered that Defendant’s motion for summary judgment (ECF No. 24 76) is denied except as to Plaintiff’s FELA strict liability claim. The Court grants summary 25 judgment in favor of Defendant on that claim. 26 It is further ordered that Defendant’s motion to exclude expert testimony of Alan 27 Pagels (ECF No. 77) is denied. 28 1 It is further ordered that Defendant's motion to exclude expert testimony of 2 || Brandon L. Ogden (ECF No. 81) is denied. 3 It is further ordered that this case is referred to the Magistrate Judge for a 4 || settlement conference. The deadline for the parties to file the joint proposed pretrial order 5 || is 30 days from the date of the settlement conference. 6 DATED THIS 28" Day of August 2025. 7 MIRANDA M. DU 10 UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11