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March 20, 1996

LEON DUKES, SR., Plaintiff,

The opinion of the court was delivered by: NORDBERG

 Before the Court is Defendant Illinois Central Railroad's ("ICRR") Motion for Summary Judgment. Plaintiff Leon Dukes ("Dukes"), an employee of the ICRR, filed a Complaint seeking damages against the ICRR in an action under the Federal Employer's Liability Act ("FELA"), 45 U.S.C. § 51 et seq., alleging that he developed Carpal Tunnel Syndrome ("CTS") due to the ICRR's negligence.


 On July 7, 1994, Dukes filed a Complaint in this Court seeking recovery under FELA for his carpal tunnel problems. Plaintiff specifically alleges that on and prior to August 1, 1991, Plaintiff carried oil cans, signal lights, and step jacks in the course of his employment. Plaintiff claims that his injuries and damages are the result of the ICRR's negligence in failing to provide Plaintiff with safe tools and equipment to assist him in his work, with proper training on methods of work, with supervision of the work, and with warnings of the dangers of the work. Plaintiff seeks damages exceeding $ 50,000 for his physical injuries, including but not limited to bilateral CTS, and for his pain and mental anguish, which he has suffered and continues to suffer.

 Dukes was hired by the ICRR in 1957 at the age of 20. He worked as a "Helper" for about four years, carrying oil cans, waste cans and assisting the carmen, before becoming an "Oiler," and eventually becoming an inspector. Dukes held the position of inspector for 30 years, working the first 25 years in the "C-yard." His primary responsibility was to inspect the trains and identify those in need of repair. The "C-yard" was separated by an overhead wire, and Dukes inspected the cars at the north end of the train. On average, Dukes inspected five train per night, each train taking approximately 25 minutes, working an eight hour shift with no overtime.

 During an inspection, Dukes walked down one side of the train connecting air hoses, changing worn brake shoes, oiling when needed and visually inspecting the cars for obvious damage or defects. Once he reached the "wire," he would cross over to the opposite side and walk back. When he connected the air hose at the end of each car, he set his oil can down, and when he ran out of oil in the can, he would return to the supply drum and refill the can. When the railroad converted to frictionless roller bearings in the early 1980's, Dukes used only one to two cans of oil per night rather than 20 to 30 cans per night as he had before the switch.

 Dukes never experienced any numbness or tingling in his fingers in the 25 years he worked as a car inspector in the "C-yard," nor had he experienced any numbness or tingling in his fingers when working as an "Oiler" or "Helper" before that. In the mid-80's, Dukes transferred to the "F-yard" where he continued to perform the same tasks as he did before, except that he worked in the daytime and he inspected only one to two trains per eight hour shift, taking breaks and completing paper work between inspections. In the "F-yard," Dukes also performed the additional task of installing and removing signal lights, which replaced the caboose in 1984.

 In working as a car inspector, Dukes claims that he routinely complained of the difficulties he experienced in performing his job duties, and that his tasks required nonstop use of his hands. Dukes did not miss any time from his work prior to June of 1991 from complaints associated with numbness or tingling in his hands and fingers. Dukes states that he was working under pain in order to meet "quotas." He further alleges that he was unaware of the fact that the nature of his work duties caused him to develop bilateral CTS.

 The ICRR asserts that a search by the Illinois Central Risk Management Department reveals that Dukes is the first car inspector in the 144 year history of the railroad to make a claim related to CTS. Dukes, however, claims that he is aware of one other car inspector who has had surgery for work-related CTS. On March 3, 1993, Dukes completed a Form 475 Injury Report, claiming that his CTS was related to his work as a car inspector.

 Chatri Vanagasem, M.D. ("Dr. Vanagasem") noted in June 21, 1991 that Dukes told him that he was experiencing numbness and tingling in his hands and fingers. Dr. Vanagasem ordered an EMG, which was performed in August of 1991, and which confirmed the presence of bilateral carpal tunnel.

 On December 10, 1992, Dukes was seen for his hands by Raymond Pierson, M.D. ("Dr. Pierson") who performed a clinical evaluation and took x-rays. Dr. Pierson diagnosed that Dukes suffered from a condition called advanced scapholunate collapse pattern, or SLAC wrist. At the evaluation, Dukes reported that "there is no specific activity which seems to aggravate the condition." Plaintiff now explains that he was unable to identify a specific condition because of the nature of all his work duties combined with his lack of knowledge about the causes and symptoms of CTS.

 Dr. Pierson testified that Dukes had fractured his wrists 20 to 30 years previous to the time of the x-rays taken in 1992. These wrist fractures were not treated. and as a result, they did not properly heal. Over the course of 20 to 30 years, degenerative arthritis developed in both of Dukes' wrists and progressed to the point that the scapholunael bones shifted. Specifically, the carpal bones, the scaphoid and the lunate bones of the wrist had essentially invaded the carpus, impinging upon the median nerve and causing Dukes' CTS symptoms. Dr. Pierson told Dukes at the December 10, 1992 evaluation that his wrist problems were not a condition that developed as a function of repetitive stress over time but one that developed as a result of an acute injury.

 Michael Jablon, M.D. ("Dr. Jablon") also examined Plaintiff and performed carpal tunnel release surgeries on both of Plaintiff's wrists. Dr. Jablon testified that he could not express any opinion to a reasonable degree of medical certainty as to whether any of plaintiffs work activities cause CTS. Plaintiff's first designated testifying expert was Marshall Matz ("Dr. Matz"), who found that Plaintiff was "uniquely predestined" to develop CTS because of advanced arthritic changes in his wrists.

 In the course of this litigation, Plaintiff has retained Herbert H. Engelhard, M.D. ("Dr. Engelhard") as an expert witness. In an affidavit, Dr. Engelhard summarily states his conclusion that Plaintiff's Bilateral CTS was caused by his work duties at the ICRR and that the nature of his work was such that it was reasonably foreseeable that Plaintiff could sustain CTS.



 Summary judgment is appropriate against a party who fails to make a sufficient showing to establish the existence of an essential element to its case on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The moving party bears the initial burden of identifying the portions of the record which it believes demonstrate the absence of a genuine issue of material fact and entitle it to judgment as a matter of law. Id. at 323; Adickes v. S.H. Kress and Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). All the evidence submitted must be viewed in the light most favorable to the non-moving party. Adickes, 398 U.S. at 157.

 Once a properly supported motion for summary judgment has been filed, the non-moving party must set forth specific facts showing there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) (quoting First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 20 L. Ed. 2d 569, 88 S. Ct. 1575 (1968)). An issue of fact is genuine only if a jury could reasonably return a verdict for the non-moving party. Id. at 248. Only facts that might affect the outcome of the case are material. Id. Therefore, if the evidence provided by the non-moving party is merely colorable or is not significantly probative, summary judgment may be granted. Id. at 249-50.


 Under FELA, railroad companies are liable in damages to any employee who suffers injury due to the railroad's negligence. 45 U.S.C. § 51. *fn1" To recover under FELA, Plaintiff must prove the common-law elements of negligence, including duty, breach, foreseeability and causation. However, the Seventh Circuit has held that "the quantum of evidence required to establish liability in a[] FELA case is much less than in an ordinary negligence action." Harbin v. Burlington N. R.R. Co., 921 F.2d 129, 131 (7th Cir. 1990); see also Deutsch v. Burlington N. R.R. Co., 983 F.2d 741, 743 (7th Cir. 1992), cert. denied, 507 U.S. 1030, 113 S. Ct. 1845, 123 L. Ed. 2d 470 (1993). Under the FELA, "the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury . . . for which damages are sought." Wilson v. Chicago, Milwaukee, St. Paul & Pac. R.R. Co., 841 F.2d 1347, 1353 (7th Cir.) (citing Rogers v. Missouri Pac. R.R. Co., 352 U.S. 500, 506, 77 S. Ct. 443, 448, 1 L. Ed. 2d 493 (1957)), cert. denied, 487 U.S. 1244, 101 L. Ed. 2d 953, 109 S. Ct. 1 (1988). Discretion to engage in common sense inferences regarding issues of causation and fault is exclusively vested with the jury "in all but the infrequent cases where fair-minded jurors cannot honestly differ whether fault of the employer played any part in the employee's injury." Walden v. Illinois Cent. Gulf R.R., 975 F.2d 361, 364 (7th Cir. 1992) (citing Rogers, 352 U.S. at 510, 77 S. Ct. at 451).

 Therefore, the case must be submitted to the jury "when there is even slight evidence of negligence," Harbin, 921 F.2d at 131; Deutsch, 983 F.2d at 743, whether or not the evidence would also reasonably permit the jury to attribute the injury to other causes as well. Wilson, 841 F.2d at 1353. In the instant case, viewing the evidence in a light most favorably to Dukes, this Court must inquire whether a jury may with reason conclude from all the admissible evidence that negligence of the ICRR played a part in Plaintiff's injury. Rogers v. Missouri Pac. R.R. Co., 352 U.S. 500, 506-07, 77 S. Ct. 443, 448, 1 L. Ed. 2d 493 (1957). It is important to note that despite FELA's lower standard of proof, a plaintiff still bears the burden of presenting evidence from which a jury could conclude a "probable" or "likely" causal relationship as opposed to merely a "possible" one. Edmonds v. Illinois Cent. Gulf R.R. Co., 910 F.2d 1284, 1288 (5th Cir. 1990) ("plaintiff must show more than a possibility that a causal relation existed") (citing Moody v. Maine Cent. R.R., 823 F.2d 693, 695 (1st Cir. 1987)).

 Under FELA, a railroad has a duty to provide employees: (1) a reasonably safe work place; (2) safe equipment; (3) proper training; and (4) suitable methods to perform the assigned work. Aparicio v. Norfolk & W. Ry. Co., 874 F. Supp. 154, 158 (N.D. Ohio 1994). Whether the duty has been breached is viewed from an objective standard of reasonableness. The standard is the degree of care a person of ordinary, reasonable prudence would observe under similar circumstances. The scope of the railroad's duty, however, is limited to hazards it could have foreseen. Gallose v. Long Island R.R. Co., 878 F.2d 80, 85 (2d Cir. 1989).


 The instant case is closely analogous to that of Zarecki v. Nat'l R.R. Passenger Corp., 914 F. Supp. 1566, 1996 U.S. Dist. LEXIS 798, 1996 WL 34454 (N.D. Ill. 1996). This Court adopts the reasoning of the Court in Zarecki in holding that Plaintiff has not shown that there is a genuine issue of material fact as to the cause of his CTS. Plaintiff claims three factors create a genuine issue of material fact as to whether his work at the ICRR caused his injuries. First, Plaintiff claims that he complained almost daily to his supervisors about the problems incurred when carrying the lights, yet he asserts that Defendant failed to alleviate his problems. Second, Plaintiff alleges that the fact that Defendant's health care provider denied Plaintiff's claim for CTS because it was work related is an admission by Defendant that Plaintiff's work at ICRR caused the injury. Third, Plaintiff presents Dr. Engelhard's affidavit who indicated with a reasonable degree of medical certainty that Plaintiff injuries were caused by his work duties.

 The Court finds, first, that Dukes own testimony is not evidence that his CTS was caused by carrying the lights. Second, the denial of coverage by ICRR's health care provider is irrelevant to causation. Third, the affidavit of Dr. Engelhard is inadmissible and may not properly be considered because it has not been supported by sufficient validation to satisfy the Daubert test. Finally, even if Plaintiff could prove causation, Plaintiff has failed to produce admissible evidence to show that his injury was foreseeable.

 As to causation, Plaintiff testifies that he complained almost daily to the ICRR of his problems in carrying the signal lights, but that no action was taken to alleviate the problem. Plaintiff offers no corroboration for his assertions, and Defendant denies that such complaints were made. "Self-serving assertions without factual support in the record will not defeat a motion for summary judgment." McDonnell v. Cournia, 990 F.2d 963, 969 (7th Cir. 1993). Plaintiff contradicts his own assertions by testifying as follows:

Q: Before March of 1993 when you filled out the injury form -- Between June of 1991 when you complained to Dr. Vanagasem about tingling and numbness in your fingers to March of 1993, did you ever complain to anyone at the Illinois Central Railroad about tingling and numbness in your hands in connection with carrying signal lights?
A: No, because I couldn't relate what it's coming from. How could I tell anybody that the signal lights got my hands messed up when I don't even know what's wrong with them?

 (Deposition of Dukes, pp. 358-59).

 Plaintiff maintains that the manner in which Defendant required him to perform his job was unsafe. However, Plaintiff does not provide probative evidence to support this contention. Plaintiff claims that he was required to install and remove two or three signal lights per eight hour shift. He had to carry the lights to and from a pick-up truck that carried the lights to the shanty, and from the shanty to the train. (Plaintiff's 12(N) Stmt., P 25). Plaintiff's testimony is only a description of his job, and not evidence that he was required to perform his job in an unsafe manner. In fact, Plaintiff's own testimony is evidence that Defendant did provide a safe working environment to Plaintiff. (Deposition of Dukes, pp. 123, 129, 132, 177, 269, 270, 331, 358, 374, 358, 458). Plaintiff testified in his deposition as follows:

 (Deposition of Dukes, p. 129).

A: I have no complaints about the design of the signal lights except they're heavy.

 (Deposition of Dukes, p. 270).

A: I do not feel that the carpal tunnel syndrome is in any way associated with a lack of training that I received or failed to receive at the railroad. I feel that I did my job safely.

 (Deposition of Dukes, p. 458). Accordingly, viewed in the light most favorable to Plaintiff, Plaintiff's testimony fails to raise a genuine issue of material fact as to the safety of his working conditions absent additional evidence suggesting that his work conditions were unsafe.

 Second, Plaintiff claims that Defendant is precluded from asserting lack of a causal connection between its negligence and Plaintiff's injuries because Defendant's health care provider, Illinois Central Hospital Association ("Hospital Association"), rejected Plaintiff's bill for CTS because his CTS was work-related. However, Plaintiff offers no legal support or evidence that the Hospital Association is an agent of the ICRR and, therefore, that the ICRR is bound by statements of the Hospital Association employee.

 In the instant case, the Hospital Association is not the agent of the ICRR because the ICRR does not have the right to control the manner and method in which the Hospital Association decides whether to accept or reject a claim. (Affidavit of David Hall, P 8); State Sec. Ins. Co. v. Frank B. Hall & Co., 258 Ill. App. 3d 588, 630 N.E.2d 940, 196 Ill. Dec. 775 (1st Dist. 1994) (Under Illinois law, the principal must have the right to control the manner and method in which the agent's work is carried out.). Therefore, any assertion made by the Hospital Association is not an admission of the ICRR regarding whether Plaintiff's work caused his injuries.

 Because Plaintiff's own testimony and the statements of the ICRR's health care provider do not create a genuine issue of material fact, Plaintiff's case survives only if Dr. Engelhard's affidavit is admissible expert testimony.

 In ruling on a motion for summary judgment, this Court may only consider evidence which would be admissible at trial. Unterreiner v. Volkswagen of America, Inc., 8 F.3d 1206, 1212 (7th Cir. 1993). Expert testimony which is not admissible cannot create genuine issues of fact sufficient to preclude summary judgment. Mid-State Fertilizer Co. v. Exchange Nat'l Bank of Chicago, 877 F.2d 1333, 1337-40 (7th Cir. 1989). Conclusory assertions, unsupported by specific facts made in affidavits opposing a motion for summary judgment, are not sufficient to defeat a proper motion for summary judgment. See Lujan v. National Wildlife Fed'n, 497 U.S. 871, 888, 111 L. Ed. 2d 695, 110 S. Ct. 3177 (1990) (The object of [Rule 56(e)] is not to replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit."); First Commodity Traders, Inc. v. Heinold Commodities, Inc., 766 F.2d 1007, 1011 (7th Cir. 1985) ("Conclusory statements in affidavits opposing a motion for summary judgment are not sufficient to raise a genuine issue of material fact."); see also Jones v. Merchants Nat'l Bank & Trust Co., 42 F.3d 1054, 1057 (7th Cir. 1994) ("Self-serving assertions without factual support in the record will not defeat a motion for summary judgment.") (internal quotation marks omitted).

 Defendant claims that Dr. Engelhard's affidavit is not admissible because he is not an expert in the field of CTS and ergonomics and because he did not reach his results by using a scientific method as required under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993). The party who proffers an expert's testimony bears the burden of establishing its admissibility by a preponderance of proof. Schmaltz v. Norfolk and Western Ry. Co., 878 F. Supp. 1119, 1120 (N.D. Ill. 1995) (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1316 (9th Cir. 1995) ("The party presenting the expert must show that the expert's findings are based on sound science . . . ")).

 In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993), the Supreme Court rejected the "general acceptance" test first employed in Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (D.C. Cir. 1923), as the standard for the admissibility of scientific evidence and adopted a standard based on the Federal Rules of Evidence. "The Supreme Court imposed a requirement that with respect to 'scientific' evidence the trial judge under Rules 702 and 104(a) must act as a gatekeeper screening 'scientific' evidence to ensure reliability." M. Graham, Federal Practice and Procedure: Evidence § 6652 (Interim Edition) (1995 Supp.) (attached).

 Rule 702 of the Federal Rules of Evidence provides a two-part test in determining the admissibility of expert testimony. First, the court must decide whether the expert testimony could assist the trier of fact in understanding the evidence or determining a fact in issue. Fed. R. Evid. 702. Second, the court must determine whether the witness called is properly qualified to give the testimony sought. Id.

 Dr. Engelhard is a neurosurgeon, not an expert on SLAC wrists or on the causes of CTS, and he has no experience in the field of ergonomics. (Curriculum Vitae of Engelhard; Deposition of Engelhard, pp. 31-32). Defendants argue that while Dr. Engelhard is a qualified neurosurgeon with expertise in the area set forth in his curriculum vitae, he does not possess the requisite qualifications with respect to the differential diagnosis of CTS and its association with work-related or occupational activities to render an opinion to a reasonable degree of certainty in a case involving the complex orthopedic anomalies of Plaintiff. This Court need not determine whether Dr. Engelhard's medical training and experience is sufficiently ...

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