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Brown v. Burlington Northern Santa Fe Ry., Co.

United States Court of Appeals, Seventh Circuit

August 29, 2014

SHANNON BROWN, Plaintiff-Appellant,

Argued May 19, 2014

Page 766

Appeal from the United States District Court for the Central District of Illinois. No. 1:09cv01380-JAG -- John A. Gorman, Magistrate Judge.

For SHANNON BROWN, Plaintiff - Appellant: George T. Brugess, Attorney, Kristen Elizabeth Lukaszak, Attorney, HOEY & FARINA, Chicago, IL.

For BURLINGTON NORTHERN SANTA FE CORPORATION, Defendant - Appellee: Craig L. Unrath, Attorney, HEYL, ROYSTER, VOELKER & ALLEN, Peoria, IL.

Before ROVNER, WILLIAMS, and TINDER, Circuit Judges.


Page 767

Tinder, Circuit Judge.

Shannon Brown appeals the dismissal of his lawsuit against the Burlington Northern Santa Fe Railway Company (" BNSF" ), which he filed under the Federal Employers' Liability Act (" FELA" ), 45 U.S.C. § 51 et seq. The sole issue he disputes on appeal is the district court's[1] decision to exclude the testimony of his expert witness, David Fletcher, M.D. We conclude that the district court did not abuse its discretion and therefore affirm its grant of summary judgment.

I. Background

At the time of this appeal, Brown was a 36-year-old man residing in Knoxville, Illinois. He began his employment with BNSF in 1996 as a member of the Maintenance of Way Department. From 2006 to 2009 he progressed through a variety of job duties as a foreman, track inspector, and machine operator. In 2007 a family physician diagnosed Brown with carpal tunnel syndrome in both wrists and cubital tunnel syndrome in his left elbow.[2] On October 25 of that year, Brown allegedly injured his right shoulder after lifting heavy angle bars at work.[3] He reported

Page 768

the alleged injury only after increasing pain prompted him to visit an emergency room. His family physician could not detect any injury despite conducting tests, and instead sent Brown to physical therapy. By December 3rd of 2007, Brown reported that his shoulder was pain free, and his doctor cleared him to return to work with no restrictions.

The day following his official return date, however, Brown had surgery on his right wrist to relieve his carpal tunnel syndrome. Surgery on the other wrist followed on January 22, 2008. He returned to work on March 24 without any restrictions. He had surgery on his left elbow in October of 2009 to treat his cubital tunnel syndrome, and he was cleared to return to work on January 4, 2010. Brown's surgeon for both of his wrist surgeries and his elbow surgery informed him that all three procedures were successful and resolved his symptoms. Brown would remain employed at BNSF without medical restriction until September 28, 2011, at which point he no longer worked at the company.

Before returning from his elbow surgery in 2009, Brown sued BNSF under FELA, alleging that the railway negligently caused cumulative trauma to his wrists, elbow, and shoulder. According to Brown, his duties at the railroad required him to use vibrating tools that either caused or aggravated his wrist conditions. He further alleges that, in September of 2009, he was required to work excessive hours without proper equipment while BNSF was short-staffed; he maintains that this exertion triggered or exacerbated the cubital tunnel syndrome in his left elbow, prompting his surgery the next month.

Discovery commenced, and Brown retained Dr. Fletcher to examine him and provide expert medical testimony. Dr. Fletcher's expertise in diagnosing railway work injuries and identifying their cause is unchallenged. He is licensed to practice medicine in Illinois, and is a full-time physician. He graduated from Rush Medical College in Chicago and holds a Master's Degree in Public Health from the University of California, Berkeley. Dr. Fletcher is a Fellow of the American College of Occupational and Environmental Medicine and has been appointed Clinical Assistant Professor at the University of Illinois and Southern Illinois University. In 2012 he was one of two doctors chosen to serve on the Illinois Workers' Compensation Commission. He is also the medical director of SafeWorks, Illinois, a private occupational health clinic. Starting in 1985 and continuing through his 2012 deposition, Dr. Fletcher occasionally served as an independent contractor with two railroad companies, the Norfolk Southern Corporation and the Canadian National Railway Company. In that capacity he treated work-related injuries and performed physicals, tested employees' fitness for duty, and conducted some ergonomic evaluations. He has served as an expert witness in past FELA cases.

Dr. Fletcher eventually submitted four expert reports on Brown's behalf, although the last was excluded as untimely in a ruling that Brown does not challenge. The first report discussed Brown's medical records and his independent medical evaluation that Dr. Fletcher conducted on August 2, 2011. Dr. Fletcher reported that Brown had no history of smoking, diabetes, or other common health risk factors. He noted that Brown reported a needle-like sensation in the palms of both hands that was minimal and easy to ignore. Brown also told Dr. Fletcher that his shoulder was " 97%" ...

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