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Kessler v. National Railroad Passenger Corp.

United States District Court, E.D. California, Sacramento

June 28, 2016

NATIONAL RAILROAD PASSENGER CORPORATION, doing business as AMTRAK, and DOES 1 through 10, inclusive, Defendants.




         This matter came on regularly for hearing on June 28, 2016 in front of the Honorable John A. Mendez, District Court Judge for the United States District Court for the Eastern District of California. Brian W. Plummer of Wilcoxen Callaham appeared on behalf of Plaintiff LINDA KESSLER. Stephanie L. Quinn of Murphy, Campbell, Alliston & Quinn appeared on behalf of Defendant NATIONAL RAILROAD PASSENGER CORPORATION, DBA AMTRAK. ("Amtrak"). After considering the papers and records on file, oral argument having been presented, the Court rules as follows:

         There are four different theories with respect to negligence in this case. Plaintiff has raised a number of arguments in opposition to Defendant's motion. Plaintiff has argued that Amtrak is overstating Plaintiff's evidentiary burden in this Federal Employers' Liability Act, 45 U.S.C. section 51 et seq. (FELA) case and that Plaintiff is required to show only that her version of events is possible. Plaintiff has argued that under the correct standard, she has provided sufficient evidence in support of each of her theories of liability to create a genuine issue of material fact. Plaintiff has alleged that Amtrak destroyed evidence that would have supported Plaintiff's case, and, therefore, Plaintiff is entitled to a presumption that summary judgment is inappropriate. Finally, plaintiff has argued that she has provided sufficient evidence to show that Amtrak's negligence was the cause of her injuries.

         FELA does permit recovery for personal injuries to employees of a railroad engaged in interstate commerce if such injuries result in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency due to its negligence in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves or other equipment.

         To recover on a FELA claim, the plaintiff must establish: (1) that the railroad was negligent under FELA; and (2) causation. With respect to demonstrating causation under FELA, the quantum of evidence sufficient to present the jury question of causation is less than it is in a common law tort action; however, this does not mean that FELA plaintiffs need to make no showing of causation. FELA plaintiffs still must demonstrate some causal connection between the defendant's negligence and their injuries. This lower standard in FELA cases does not mean that courts must allow expert testimony in other contexts that would be inadmissible.

         Plaintiff has argued that she is not required to provide expert testimony regarding causation. That is in the opposition at page 8, citing Lavender v. Kurn, 327 U.S. 645 (1946) for the proposition that the exacting scientific analysis that Amtrak seeks to impose on plaintiff is inappropriate. Amtrak has argued that Lavender is inapplicable in this case because there was actual evidence in Lavender, including testimony about the cause of the injury, evidence of the cause of injury, and evidence supporting the theory of the injury.

         The Ninth Circuit has distinguished cases like Lavender, which involved a situation in which no special expertise was necessary to draw a causal inference from cases in which expert testimony is necessary to establish even that small quantum of causation required by FELA. There is a Ninth Circuit case, Claar v. Burlington N. R.R. Co., 29 F.3d 499, 503 (9th Cir.1994), in which the court reasoned that in the latter category of cases, the failure to proffer any admissible expert testimony merits summary judgment.

         Several cases have emphasized that at least some expert testimony should be supplied by the plaintiff in order to survive a summary judgment motion. The Ninth Circuit concluded that FELA plaintiffs generally must provide admissible expert testimony showing that the workplace harm they allege played some part in producing their injuries. Schrum v. Burlington Northern & Santa Fe Ry. Co., 286 Fed.Appx 380 (9th Cir. 2008). In Schrum, the court did uphold summary judgment because a review of the evidence presented on summary judgment revealed that no doctor was willing to testify that Schrum's inhaling of dust at Chemical Lime was a cause of his aggravated asthma.

         The plaintiff in Schrum, unlike the plaintiff in this case before the court today, actually retained an expert, but the court found that the expert was not a physician and did not offer evidence as to Mr. Schrum's specific condition. Instead, the court emphasized that the defendant had submitted expert testimony concluding that Schrum's asthma was not caused by his occupation, and summary judgment was thus appropriate in Schrum because the plaintiff failed to present expert evidence establishing causation.

         In another FELA negligence claim, the Ninth Circuit upheld summary judgment after the district court had concluded that the plaintiff's expert reports were deficient because they failed to explain which chemicals caused plaintiff's injuries and failed to provide the reasoning and methods used to support their conclusions. Claar v. Burlington N. R.R. Co., 29 F.3d 499, 503 (9th Cir.1994). Without any admissible expert affidavits, plaintiff could not demonstrate a causal relationship between chemical exposure and their injuries.

         Even the Lavender court stated that only when there is a complete absence of probative facts to support its conclusion reached does a reversible error appear, but whereas here, there is an evidentiary basis for the jury's verdict, the jury is free to discard or disbelieve whichever facts are inconsistent with its conclusion. In summary, the courts in Claar and Schrum did grant summary judgment even though the plaintiffs attempted to submit expert testimony about causation.

         In New York Central Railroad Co. v. Ambrose Administratrix, 280 U.S. 486, 490, 50 S.Ct. 198 (1930), the Supreme Court found that it was not enough that an accident may have resulted from one of several causes, that the only evidence that plaintiff provided was conjecture and speculation. The Supreme Court in Lavender found that there was evidence, enough for the jury to decide factual issues, which distinguishes Lavender from cases that have a complete absence of probative facts.

         Thus, the court concludes that the plaintiff does have a burden on summary judgment to provide at least some expert testimony in support of her negligence and causation claims, and there is a complete failure of the plaintiff to provided admissible expert testimony to explain how Amtrak's alleged negligence caused her injury. Instead, Ms. Kessler relies solely on her own self-serving and somewhat speculative and ...

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