this function, and Dukes installed approximately two or three lights per shift. Dukes carried the lights to and from a pick-up truck, which was used to transport the lights to the shanty where they were stored, and from the shanty to the train. The lights, like the oil cans, were carried by a handle, so when one hand got tired, Dukes switched hands or set the light down to take a break. In February of 1992, Dukes exercised his seniority to bid for and received an assignment as a helper on the repair track, where he drove fork lift trucks and other equipment rather than performing the tasks of a car inspector.
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.
A. SUMMARY JUDGMENT STANDARD
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.
B. STANDARD UNDER FELA
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.
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?