Danny R. Ruark, Plaintiff-Appellant,
Union Pacific Railroad Company, Defendant-Appellee.
December 5, 2018
from the United States District Court for the Southern
District of Illinois. No. 3:14-cv-00329-DRH-RJD - David R.
Flaum, Rovner, and Scudder, Circuit Judges.
ROVNER, CIRCUIT JUDGE.
Federal Employers Liability Act (FELA), 45 U.S.C.
§§ 51-60, was enacted more than a hundred years ago
to compensate railroad employees for injuries they receive on
the job. Ruark was an employee of the Union Pacific Railroad
when a hydraulic rail drill malfunctioned and sprayed him
with hot oil. He sought relief under FELA using the legal
doctrine of "res ipsa loquitur," a doctrine that
asks a finder of fact to infer liability when (as the Latin
is often translated) "the thing speaks for itself."
Because of the burden-shifting nature of the doctrine, it
requires some baseline conditions-namely that the defendant
was in control of the instrumentality that caused the injury
and that the plaintiff was not also negligent. The district
court found that these conditions were not met and thus the
jury should not be instructed that they could assume that
"the matter spoke for itself" under the doctrine.
We agree and find that the district court did not abuse its
discretion by refusing to grant Ruark a continuance before
trial. We affirm on both points.
September 22, 2013, Ruark was working as a machine operator
on rail maintenance on the Union Pacific Railroad using a
hydraulic rail drill to drill holes into the rails. To use
the drill, the operator clamps it in place on the rail and
then uses a lever to start the drill. When the drill is
finished, the operator pushes the lever back to stop the
drill and retract the bit, and then unclamps it from the
rail. The drill is powered by hydraulics which requires that
it connect to machinery by hoses carrying fluid. Ruark began
working at six o'clock in the morning and was involved in
hooking the drill up to the hydraulic lines before the work
began. He used the drill throughout the day, attaching it to
the rail, pushing the lever to start the drilling, pushing
the lever to stop the drill and retract it, and then
detaching it from the rail. Ruark used the machine to drill
five or six holes that day, including the last one, and had
not noticed any leaking hydraulic fluid or other malfunction.
As he drilled the last hole, Ruark reached down to retract
the drill bit out of the hole and turn the drill off when he
heard a "boom."  Hot fluid sprayed over him, including
in his eyes. Ruark jerked upward, twisted, and stumbled
backward. After Ruark informed his supervisor that the drill
had exploded, the supervisor gave him napkins to wipe off the
oil and Ruark declined further medical attention. The
supervisor sent him home to clean up and told him to return
to work the next day and report how he was feeling. Ruark
returned to work the following day, but did not participate
in much of the work, because, as he stated at his deposition,
"it hurt too bad." Ruark's Short App. at 88.
Ruark went home that evening and made an appointment to see
his regular nurse practitioner the next day. The form he
completed at her office stated that he was experiencing
"sinus and stomach problems." Ruark's Short
App. at 125. Ruark did not return to work after September 23
and was pulled out of service a few days later because he had
been convicted of a felony unrelated to the workplace
accident. On October 2, Ruark completed an accident report
form based on the September 22 incident. On March 13, 2014,
Ruark filed suit under FELA claiming injuries from the
incident with the rail drill.
began a prison sentence a short while later (on June 28,
2016), a fact we note because it interrupted Ruark's
representation and trial preparation. Two months into
Ruark's incarceration (the end of August, 2016), his
first set of lawyers moved to withdraw, asserting that it was
impossible to represent him in this tort matter while he was
incarcerated. His new counsel took over a few months later
(early December, 2016) and the district court scheduled a
pretrial conference for the end of February. At that
conference, the judge denied a pending motion for a
continuance, reasoning that the case had been pending for
almost three years, Ruark had been well represented by his
initial counsel, he had been given a normal scheduling order,
and the fact of his incarceration was not cause to reopen
exhausted deadlines and allow Ruark to begin the discovery
process anew. Despite the denial, the district court judge
did permit some planned discovery to continue. He allowed
Ruark's counsel to take his client's trial testimony
by video deposition and to depose Ruark's treating
physician. He also stated that he would consider a new motion
to reopen discovery once a trial date was set and the new
counsel became more familiar with the case. Ruark's
lawyer, however, did not pursue that option. The trial began
on June 13, 2017. Ruark proceeded on a theory of negligence
based on res ipsa loquitur. Once the district court
determined that the plaintiff had not met the requirements
for use of the doctrine, it granted Union Pacific's
motion for judgment as a matter of law, on June 14, 2017, a
ruling which we review de novo. Martin v. Milwaukee
Cty., 904 F.3d 544, 550 (7th Cir. 2018). Judgment as a
matter of law is proper if "a reasonable jury would not
have a legally sufficient evidentiary basis to find for the
party on that issue." Id. (quoting Fed.R.Civ.P.
50(a)(1)). We review the district court's decision to
deny the motions for a continuance and to reopen discovery
for an abuse of discretion.
Judgment as a matter of law on the FELA claim.
case involves an interplay between FELA and the doctrine of
res ipsa loquitur. While FELA provides the cause of action
under federal statute for injuries received while in the
employ of the railroad, the plaintiff here, Ruark, went about
hoping to prove that liability by using the doctrine of res
ipsa loquitur. Res ipsa loquitur describes not a substantive
claim, but a manner of proceeding on that claim. As we will
describe in more detail below, it is "a shortcut to a
negligence claim." Blasius v. Angel Auto.,
Inc., 839 F.3d 639, 649 (7th Cir. 2016) (citing
Maroules v. Jumbo, Inc., 452 F.3d 639, 642 (7th Cir.
2006)). Thus whether Ruark could proceed below depended on
whether he had met the prerequisites for a res ipsa claim. In
short, FELA provides the substantive framework for
Ruark's claim but the evidentiary theory under which he
opted to proceed is that rail drills do not, in the ordinary
course of events, spray oil on their users. As we will
discuss, the cost of admission to this plaintiff-friendly,
burden-shifting doctrine requires a plaintiff to make some
significant preliminary showings.
FELA, it may be true, as Ruark argues, that FELA requires a
lower threshold for submitting matters to the jury. FELA is a
remedial statute, lowering the burden of proof so that an
employee might meet it if "employer negligence played
any part, even the slightest, in producing the injury."
Rogers v. Missouri Vac. R.R., 352 U.S. 500, 506
(1957); Brown v. Burlington N. Santa Fe Ry. Co., 765
F.3d 765, 771 (7th Cir. 2014).
lowered threshold, however, does not mean that an employer is
responsible for any injury that occurs in the course of
employment. As the Supreme Court explained:
That FELA is to be liberally construed, however, does not
mean that it is a workers' compensation statute. We have
insisted that FELA does not make the employer the insurer of
the safety of his employees while they are on duty. The basis
of his liability is his negligence, not the fact that
Consol. Rail Corp. v. Gottshall,
512 U.S. 532,
543-44, 114 S.Ct. 2396, 2404 (1994) (internal citations