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Messenger v. Norfolk Southern Railway Co.

United States District Court, Northern District of Indiana

March 5, 2015



William C. Lee, Judge United States District Court

This matter is before the court on a motion to exclude expert testimony, filed by the Defendant, Norfolk Southern Railway Company ("Norfolk Southern"), on December 9, 2014. On this same date, Norfolk Southern filed a motion for summary judgment. The plaintiff, Richard Messenger ("Messenger"), filed a response to the motions on February 3, 2015, to which Norfolk Southern replied on February 12, 2015.

For the following reasons, Norfolk Southern's motions will both be granted.

Summary Judgment

Summary judgment must be granted when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Not every dispute between the parties precludes summary judgment, however, since "[o]nly disputes over facts that might affect the outcome of the suit under the governing law" warrant a trial. Id. To determine whether a genuine issue of material fact exists, the court must construe all facts in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Heft v. Moore, 351 F.3d 278, 282 (7th Cir. 2003). A party opposing a properly supported summary judgment motion may not rely merely on allegations or denials in its own pleading, but rather must "marshal and present the court with the evidence she contends will prove her case." Goodman v. Nat'l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010).


As the motion for summary judgment is based on the motion to exclude expert testimony, and Messenger has conceded that if the motion to exclude is granted the motion for summary judgment must also be granted. The following facts are relevant to both motions.

On June 1, 1999, Messenger began working as a conductor at Norfolk Southern rail yard in Elkhart, Indiana. (Messenger Dep. at 76:13-25; 77:1-23). As a conductor, Messenger's primary responsibility involved using yard locomotive power to pull cuts of cars out of the hump bowl and set them out into various departure tracks. (Weames Declaration with exhibits A and B, Report at 3). Messenger would ride the cab until he got to the switches that he had to throw. (Messenger Dep. at 121:2-6). He would then ride on the steps of the cab until they tied on to the first car. Id. At that point, he would then walk the track. Id. When not performing this task, Messenger would open knuckles, adjust draw bars, and make couplings. (Id. at 121:11-14). Messenger worked an eight hour shift while at Norfolk Southern. (Id. at 111:24; 112:1-2).

While still employed by Norfolk Southern, Messenger was diagnosed with carpal tunnel syndrome and cubital tunnel syndrome of his right upper extremity. (Mencias Dep. at 18:15-25) On February 22, 2011, Messenger had surgery on his right wrist and elbow to relieve the symptoms. (Id. at 19:1-5). On October 21, 2013, Messenger brought this current action under FELA claiming Norfolk Southern's alleged failure to provide a safe work environment was the cause of his injuries. (Messenger Complaint at ¶15).

When asked what Norfolk Southern did to cause his injuries, Messenger referred to Norfolk Southern's policy requiring conductors to ride on the side of train cars while moving and not allowing them to get off and walk along. (Messenger Dep. At 109:6-24; 110:1-10). Messenger said that he spent between an hour and an hour and a half hanging from the rail cars during his eight hour shift, but admitted he was "guessing." (Id. at 112:11-18). Messenger provided no other testimony as to the nature, duration, or force of his exposures. Dr. Natalie Frentz is Messenger's primary care physician. (Frentz Dep. at 15:1-4). Dr. Mencias, an orthopedic surgeon, performed Messenger's surgery to relieve his symptoms. (Mencias Dep. at 19:1-7). Neither Dr. Frentz nor Dr. Mencias offer an expert opinion as to the cause of Messenger's injuries. (Frentz Dep. at 8:16- 25; 9:1-25) (Mencias Dep. at 9:16-25; 10:1-8; 23:10- 21). Furthermore, Messenger's treating rheumatologist, Dr. Natali Balog, also does not have an opinion as to the cause of Messenger's condition. (Balog Dep. at 9:21-25; 10:1-25; 11:1-25; 12:1-25; 13:1-25; 14:1-11).

Dr. Mencias stated that obesity, diabetes, and rheumatoid arthritis are all factors that could cause carpal tunnel syndrome. (Mencias Dep. at 22:1-25). Messenger suffers from Type 2 diabetes and rheumatoid arthritis. (Gates Dep. at 20:1-7)(Frentz Dep. at 17:17-23; 19:3-6) (Balog Dep. at 21:5-13). Messenger is also obese. (Gates Dep. at 20:1-7) (Levine Declaration with exhibits A and B, Report at 15).

In addition to his health factors, Messenger also rides a motorcycle, is an avid golfer, and uses power tools at his home. Messenger has been consistently riding a motorcycle since 1974. (Messenger Dep. at 45:9-19). As for golfing, Messenger has been a steady player since he was 37 years old. (Id. at 36:14-19). Messenger's power tool collection includes a table saw, chop saw, radial arm saw, nail guns, and a drill press. (Id. at 59:17-21; 61:8-22). Messenger did not provide to his treating doctors and expert witness any specific information as to the nature, duration, or force in his right wrist and elbow as to these non-railroad activities.

Messenger retained Dr. Dennis Gates to review his medical history and provide expert medical testimony as to the cause of his carpal tunnel syndrome and cubital tunnel syndrome. (Gates Report at 6) (Gates Dep. at 16:11-15). Dr. Gates is not one of Messenger's treating physicians. (Gates Dep. at 12:23-25). Dr. Gates is neither an ergonomist nor a biomechanical expert. (Id. at 6:24-25; 7:1-7).

Dr. Gates opined "with a reasonable degree of medical certainty that the repetitive motions of being a Railroad Conductor caused the carpal tunnel syndrome and cubital tunnel syndrome and necessitated the treatment that [Messenger] had." (Gates Report). Dr. Gates relied on his own examination of Messenger, Messenger's medical files and deposition testimony, answers to Norfolk Southern's interrogatories, and job descriptions describing the "Tasks, Duties, & Responsibilities of a Conductor" for the railroads of Burlington Northern Santa Fe, Union Pacific, Canadian National Railway, and a general description that did not bear the name of any railroad. (Gates Report) (Conductor Position Descriptions, Exhibits 4-7 to Gates Deposition). During Dr. Gates' deposition, Messenger's counsel offered a training video of CSX railroad workers performing job duties and tasks to supplement Dr. Gates' Report. (Gate Dep. at 50:3 – 58:1-7). Dr. Gates admitted the tape, from another railroad (CSX), was over 13 years old, did not involve a conductor position for Norfolk Southern, was recorded at an unknown location, and did not show the frequency with which a conductor at Norfolk Southern would perform work-related duties or the ergonomic forces to which Norfolk Southern conductors would be exposed. (Id. at 66:2-25).

Dr. Gates used "differential etiology" or "differential diagnosis" in forming his conclusions as to the cause of Messenger's injury. (Gates Dep. at 73:12-16). In applying his methodology, Dr. Gates said he followed the AMA Guides to the Evaluation of Disease and Injury Causation. (Id. at 36:20-25; 39:1-6). The AMA Guidelines provide six steps when making a determination of the work-relatedness of a disease: (1) Identify evidence of the disease; (2) Review and assess the available epidemiologic evidence for a causal relationship; (3) Obtain and assess the evidence of exposure; (4) Consider other relevant factors; (5) Judge the validity of testimony; and (6) Form conclusions about the work-relatedness of the disease in the person undergoing evaluation. (AMA: Guides to the Evaluation of Disease and Injury Causation, at 40, Ex. 2 to Gates Deposition).

For reviewing and assessing the available epidemiologic evidence for a causal relationship, Dr. Gates said he assumed the Guidelines were referencing the medical literature that involved repetitive things for carpal tunnel. (Gates Dep. at 39:8-25; 40:1-7). However, Dr. Gates admitted that he did not rely on any literature in coming to his conclusion. (Id. at 29:14- 25; 30:1-19; 40:2-7).

For obtaining and assessing the evidence of exposure, the best type of information stated in the hierarchy of exposure data table in the AMA Guides is a quantified personal or individualized measurement, while the worst type of data is that from employment in a plant or obtained from the employer. (AMA: Guides to the Evaluation of Disease and Injury Causation, Table 3-3, at 41). Dr. Gates relied on the general job descriptions of railroad conductors for other railroads, speaking with Messenger, and testimony from Messenger's deposition. (Gates Dep. at 40:8-25; 41:1-25). Dr. Gates did not speak with any other railroad workers, did not have experience in performing individualized measurements involving repetition of particular tasks on particular body parts, did not have a quantified personal or individualized measurement of Messenger's or any other Norfolk Southern conductor's work-related exposure at the Elkhart yard, nor had he ever witnessed a railroad conductor at his/her job or been to the Elkhart yard where Messenger worked, all of which is considered the best evidence under the AMA hierarchy. (Gates Dep. at 41:3-10; 42:1-19; 49:15-24). When asked if he agreed with the AMA hierarchy on exposure data, Dr. Gates "disagreed" despite claiming to have followed the method. (Gates Dep. at 43:12-18). Dr. Gates stated:

Q. So do you agree with the AMA that the best evidence of exposure is a quantified, individualized measurement of the individual?
A. In regard to the causation of carpal tunnel syndrome?
Q. In a particular individual, yes.
A. No. I - - I would - - I would disagree.
Q. Okay. So you disagree with the AMA on this point?
A. That's putting it too strong. Sorry.
Q. Okay.
A. I disagree as to - - it's - - the statement is, really - - this is excessively detailed. It doesn't - - you don't need that to make the conclusion. So my answer would be that the two of them are - - are nice. I guess they're good for a legal case. But on a practical basis, they're not necessary.

(Id. at 43:12-25; 44:1-4).

Dr. Gates said the way Messenger described his job duties made it seem "pretty obvious" exposure to work-related factors helped cause his carpal tunnel syndrome and cubital tunnel syndrome. (Id. at 34:24-25; 35:1-15). On this point, Dr. Gates stated:

A. Well, just the way that - - that he described his job to me, you know, holding on, moving, twisting, pulling. It seemed - - it seemed pretty obvious - -
Q. Okay.
A. - - that it contributed to it.
Q. Is it possible to hold on, move, and pull in a manner that is safe and does not lead to carpal tunnel syndrome?
A. Sure.
Q. Okay. So how do you know that that did not happen in his case?
A. Because - - simply because - - because he developed it.

(Id. at 35:2-15). Dr. Gates even analogized his conclusion to the legal doctrine of "res ipsa loquitur" or the thing speaks for itself. (Id. at 35:19-25). When asked how he knew Messenger's alleged work exposure would be "excessive, " Dr. Gates said:

Q. For you to say something like "excessive, " would you - - how do you know it was excessive?
A. Only when the disease arises. I mean - - yes. It's like a runner. How much is too much running for - - and training? It's only when the knee starts to hurt.

(Id. at 31:16-21).

As to the frequency in which Messenger performed the allegedly harmful work-related tasks, Dr. Gates stated he did not have an "exact number" and admitted it was an "unknown variable." (Id. at 75:4-6; 76:5-10). When asked ...

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