The opinion of the court was delivered by: Michael M. Mihm United States District Judge
This matter is now before the Court on Defendant's Motions for Summary Judgment and Motions to Bar Expert Testimony. For the reasons set forth below, the Motion for Summary Judgment on the Statute of Limitations [#17] is DENIED. The Motion for Partial Summary Judgment Regarding Ballast Claims [#20] is DENIED. The Motion to Bar the Expert Opinion Testimony of Tyler Kress [#29] is DENIED. The Motion to Bar Plaintiff's Treating Physicians From Giving Expert Causation Opinions [#18] is GRANTED with leave to seek reconsideration after an adequate offer of proof, and the Motion for Summary Judgment for Lack of Causation Evidence [#40] is DENIED. The Motion for Partial Summary Judgment on Plaintiff's Allegations Regarding Locomotive Seats [#38] is DENIED.
Since 1971, Plaintiff, Orin Kelly ("Kelly"), has been employed by Defendant, Illinois Central Railroad Company ("Illinois Central"), as a conductor/trainman. On February 19, 2008, Kelly filed his Complaint in this matter, alleging work related injuries to his back, neck, knees, and adjacent structures. Count I asserts a claim against Illinois Central, under the Federal Employer's Liability Act ("FELA"), 45 U.S.C. § 51, et seq. Count II is a claim for Negligence Per Se, and Count III alleges violations of the Locomotive Inspection Act. Illinois Central has moved for summary judgment on numerous grounds. The motions are fully briefed, and this Order follows.
Summary judgment should be granted where "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party has the responsibility of informing the Court of portions of the record or affidavits that demonstrate the absence of a triable issue. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party may meet its burden of showing an absence of disputed material facts by demonstrating "that there is an absence of evidence to support the non-moving party's case." Id. at 325. Any doubt as to the existence of a genuine issue for trial is resolved against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Cain v. Lane, 857 F.2d 1139, 1142 (7th Cir. 1988).
If the moving party meets its burden, the non-moving party then has the burden of presenting specific facts to show that there is a genuine issue of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). Federal Rule of Civil Procedure 56(e) requires the non-moving party to go beyond the pleadings and produce evidence of a genuine issue for trial. Celotex, 477 U.S. at 324. Nevertheless, this Court must "view the record and all inferences drawn from it in the light most favorable to the [non-moving party]." Holland v. Jefferson Nat. Life Ins. Co., 883 F.2d 1307, 1312 (7th Cir. 1989). Summary judgment will be denied where a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 931 (7th Cir. 1995).
I. Statute of Limitations
FELA provides in relevant part that "[e]very common carrier by railroad while engaging in [interstate] commerce... shall be liable to any person suffering injury while he is employed by such carrier in such commerce... for such injury or death resulting in whole or in part from the [carrier's] negligence." 45 U.S.C. § 51. FELA was enacted as a "broad remedial statute" to respond "to the special needs of railroad workers who are daily exposed to the risks inherent in railroad work and are helpless to provide adequately for their own safety." Sinkler v. Missouri Pacific R.R. Co., 356 U.S. 326, 329 (1958). The Act is meant to be read liberally in favor of injured railroad employees. Urie v. Thompson, 337 U.S. 163, 180 (1949).
Illinois Central moves for summary judgment based on FELA's statute of limitations. Under FELA, "no action shall be maintained under this [A]ct unless commenced within three (3) years from the day the cause of action accrued." 45 U.S.C. § 56. The cause of action accrues for statute of limitations purposes "when a reasonable person knows or in the exercise of reasonable diligence should have known of both the injury and its governing cause." Green v. CSX Transportation, Inc., 414 F.3d 758, 763 (7th Cir. 2005), citing Tolston v. National R.R. Passenger Corp., 102 F.3d 863, 865 (7th Cir. 1996); Fries v. Chicago & Northwestern Transportation Co., 909 F.2d 1092, 1095 (7th Cir. 1990). Where "an injury results from continual exposure to a harmful condition over a period of time, a plaintiff's cause of action accrues when the injury manifests itself." Id.; Fries, 909 F.2d at 1094. Accordingly, for purposes of this case, the issue is whether Kelly knew or had reason to know through the exercise of reasonable diligence that he had suffered an injury as a result of his work on the railroad prior to February 19, 2005.
Kelly claims injuries to his neck, back, and both knees. Unlike the situation in Green, Kelly sought treatment for his pain on more than one occasion, and there are more than a few stray references to generalized pain in Kelly's medical records. In December 1991, he was treated by Dr. James Harms for complaints related to his lumbar spine. Kelly indicated that he had been seeing a chiropractor for his back, and they discussed the nature of Kelly's work at that time. Dr. Harms suggested that he consider finding a job that was less physical but never specifically told him that if he continued to work as a switchman on a day to day basis that he would sustain additional injury to his back.
Kelly began treatment at the Clinton Chiropractic Center for low back and neck complaints in January 1998 and continued to receive treatment there at least through January 2009. He received treatment 58 times in 1998, 9 times in 1999, 9 times in 2000, 13 times in 2001, 8 times in 2002, 12 times in 2003, 9 times in 2004, and 40 times in 2005 (7 of which occurred prior to February 18, 2005), for a total of 125 chiropractic treatments prior to the three-year limitations period in this case.
Kelly told his treating physicians about his job duties, including that he had to jump on and off trains. He further admits that back in the 1990's, his treating doctors told him that getting on and off trains was a contributing factor to his neck and back pain. However, he denies that he knew or should have known that his railroad work was causing appreciable injury to his neck and back until degenerative cervical and lumbar disc disease was specifically diagnosed by Dr. George Schoedinger on August 22, 2006. An MRI subsequently showed posterior disc protrusions from L3 to S1 and extradural defects at C3-4, C5-6, and C6-7 consistent with ruptured discs at these levels.
At some point, Kelly also began to experience pain in both of his knees. Although he is unable to specifically recall when this began, he knows that it was after his union signed a contract that called for ten-hour workdays. The record indicates that the contract increasing the basic work day to ten hours became effective on July 28, 2003. He attributed his knee pain to the long hours of work at the railroad, as well as the conditions of the walk ways he had to work on, oversized ballast, mud, ice, snow, and tugging on switches. Kelly first obtained medical treatment for his knee pain from Dr. Forbes McMullin on September 12, 2006. He informed Dr. McMullin that he had been experiencing bilateral knee pain for about a year and that multiple bouts of mild knee pain had resolved themselves over the years. MRIs of his knees in 2006 showed degenerative patellofemoral compartment disease that ultimately required surgery.
Kelly cites periodic medical examinations in 2000 and 2005 in which he was deemed physically able to work as a conductor without restrictions and insists that his pain did not cause him to miss work. However, this misses the point. The question is not whether Kelly's condition rendered him physically unable to work as a conductor, but rather whether a reasonable person in his position should have realized that he had suffered more than a de minimus cumulative injury to his neck, back, and knees as a result of his work. Green, 414 F.3d at 764-65.
Likewise, Kelly states that none of his treating physicians ever told him that he had sustained injuries to his neck, back, or knees that were causally related to his railroad employment prior to February 19, 2005. He maintains that his chronic pain is something different from his ultimate injury and argues, without citation to any legal support, that such symptoms are insufficient to start the 3-year limitations clock running. Nevertheless, a plaintiff need not have actual knowledge of the injury by a confirming medical diagnosis in order for the claim to accrue. Fries, 909 F.2d at 1097. "The key is knowledge of the injury and, by extension, knowledge of the cause of that injury; it does not matter whether the plaintiff realizes that a legal wrong has occurred." Tolston v. National R.R. Passenger Corp., 1996 WL 467660, at *2 (7th Cir. Aug. 14, 1996).
[T]he Fries court summarized the rule for FELA cases as follows: "a cause of action accrues for statute of limitations purposes when a reasonable person knows or in the exercise of reasonable diligence should have known of both the injury and its governing cause." Both components, the court emphasized, require "an objective inquiry into when the plaintiff knew or should have known, in the exercise of reasonable diligence, the essential facts of injury and cause. A plaintiff need not be sure which cause is predominant, as long as [he] knows or has reason to know of a potential cause. Just to be clear, the court added that this rule imposes on plaintiffs the affirmative duty to investigate the cause of a known injury.
Like the plaintiff in Tolston, Kelly believed that his pains were due to the ordinary wear and tear of old age. However, the record clearly indicates that he had been told as early as 1991 that his neck and back pain could be due to the physical nature of his work and that back in the 1990s, his treating physicians told him that getting on and off trains in the course of his work was a contributing factor to his neck and back pain. To suggest that he needed a physician to go beyond this and specifically opine that his work was causing a specifically diagnosed injury to his neck and back in order to cause his claim to accrue is equivalent to demanding an actual knowledge standard that is not required by the law. Id. "At some point, persons with degenerative conditions have a duty to investigate cause." Id., citing Aparicio v. Norfolk & Western Ry. Co., 84 F.3d 803, 814-15 (6th Cir. 1996).
By his own admission, Kelly suffered from back and neck pain that required chiropractic treatment since the 1990s. In fact, his pain required an average of at least one treatment a week in 1998, when he received 58 treatments at the Clinton Chiropractic Center. That being said, prior to 1998 and from 1999 through 2004, he only received treatment on an average of once a month. The parties have not directed the Court to any evidence indicating that Kelly's pain was of sufficient magnitude to cause him to miss work or not be able to perform his duties, and Kelly described his pain as merely a "stiffness" that had bothered him off and on for years. (Kelly Dep., at 18) Kelly also stated that while he knew what his job duties were and knew that he was experiencing problems with his back and neck, he "didn't know what caused it at the time." Id., at 34-35.
Like the plaintiff in Tolston and Fries, Kelly knew he had a problem with his persistent stiffness, and like the plaintiff in Tolston, he was actively seeking treatment for it. However, unlike the plaintiff in Tolston, the treatment was very conservative. There is no indication that the pain was "extreme," required prescribed medication or even Ibuprofen for that matter, or caused him to miss any work prior to the three-year limitations period. In fact, he didn't even consider it worth discussing with his regular family doctor. (Kelly Dep., at 50) Additionally, the plaintiff in Tolston had been advised by her physicians that she had an actual injury separate and apart from "old age," in that she was told that she had torn cartilage in her knee that would require surgery and that she was suffering from degenerative joint disease.
Given the necessity of his regular chiropractic treatment, as well as the statements from his treating physicians that his work was likely a contributing factor to his neck and back pain, a reasonable person in Kelly's position may have realized that some further investigation into the potential causes of his condition was required prior to February 19, 2005. However, this conclusion is not the only reasonable conclusion that could be drawn from this record. The intermittent nature of his pain does not appear to be on the same scale as that suffered by the plaintiffs in Tolston and Fries, and may not have been of sufficient magnitude to put a reasonable person in his position on notice that his work had caused a cognizable, cumulative injury to his neck and back.
Accordingly, when all disputed facts and reasonable inference are drawn in his favor, Kelly has by the barest of margins demonstrated a genuine issue of material fact as to whether he reasonably should have known of his injury and that it was caused by his work for the railroad prior to February 19, 2005, that requires resolution at trial. While his ability to succeed at trial is far from clear, the entry of summary judgment on this claim would be inappropriate. That being said, if the evidence presented at trial indicates that Kelly reasonably should have known of his injury prior to the statute of limitations, the Court will not hesitate to grant a directed verdict.
The existence of a genuine issue of material fact is even more apparent with respect to his bilateral knee injuries, where the record indicates only that he began experiencing pain after the union switched to a ten-hour work day in July 2003 and that Kelly associated his pain with that event. There is no indication that his pain cause him to miss work or was of such magnitude that he sought treatment for his knee pain until 2006, well within the statute of limitations. The parties have cited no evidence establishing that prior to February 19, 2005, Kelly's knee pain was anything more than the kind of intermittent annoyance found to be equivalent to a "scratch" in Green and insufficient to constitute the accrual of a cumulative knee injury. Thus, when construed in the light most favorable to the plaintiff, the Court finds a genuine issue of material fact as to whether his knee pain was sufficient to put a reasonable person in Kelly's circumstances on notice that he had suffered a cognizable work-related injury to his knees. He is entitled to have a jury decide whether and when a reasonable person would have realized that he suffered more than a de minimus cumulative injury to his knees as a result of his work as a conductor. Illinois Centra's Motion for Summary Judgment must be denied in this respect.
Illinois Central next moves for summary judgment on Kelly's claims based on its alleged failure to properly inspect, maintain, or tamp the ballast. Specifically, Kelly alleges that his injuries were caused in part by walking on large, oversized road ballast that was dumped in the yards. Ballast is the gravel or crushed rock that is used to construct one or more layers above the subgrade to support the railroad track or provide drainage. Illinois Central argues that any claim with respect to the ballast is preempted by the Federal Railroad Safety Act ("FRSA"), which it contends "occupies the field" in this area.
The FRSA was enacted to "promote safety in every area of railroad operations and reduce railroad-related accidents and incidents." 49 U.S.C. § 20101. Under the FRSA, "[l]aws, regulations, and orders related to railroad safety... shall be nationally uniform to the extent practicable." 49 U.S.C. § 20106(a)(1). Accordingly, it is clear that provisions of the FRSA may sometimes preclude certain claims ...