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Steggall v. BNSF Railway Co.

United States District Court, D. Nebraska

April 4, 2019

JAMES J. STEGGALL, Plaintiff,
v.
BNSF RAILWAY COMPANY, Defendant.

          MEMORANDUM AND ORDER

          Cheryl R. Zwart United States Magistrate Judge.

         Plaintiff, James Steggall (“Steggall”) has asserted a claim under the Federal Employers' Liability Act (“FELA”), 45 U.S.C. § 51 et seq., alleging that he slipped and fell on ice in Defendant BNSF Railway Company's (“BNSF”) Alliance, Nebraska railyard and sustained injuries.

         This matter is before the court on BNSF's motion to exclude testimony of Steggall's retained expert, Brian Hansen (“Hansen”) (Filing No. 52), and BNSF's motion for summary judgment (Filing No. 55). For the reasons discussed below, the defendant's motion to exclude testimony will be granted. Defendant's motion for summary judgment will be granted in part, and denied in part.

         I. BACKGROUND

         Steggall is a former employee of BNSF and its predecessor in interest, Burlington Northern. He began working for the company in 1972 and retired in February 2018. (Filing No. 57-1 at CM/ECF pp. 3, 7).

         Steggall alleges that on January 4, 2015, he “slipped and fell on ice resulting in serious and permanent injury to his left hip, left elbow, back, neck and body.” (Filing No. 1 at CM/ECF p. 2). He alleges his fall occurred as he was performing work in the course of his duties as a foreman in the Maintenance of Way Department for BNSF. (Id. at CM/ECF pp. 1-2)

         On the day of the fall, Steggall arrived at the Alliance Railyard at 5:30 a.m. and worked a 12-hour shift. At the end of his shift, Jeremy Wegner, a roadmaster working at the Alliance yard, asked a small group of employees if one of them would return to the yard to turn off a piece of equipment known as a jet blower. (Filing No. 63-4 at CM/ECF p. 11, Filing No. 57-1 at CM/ECF p. 13) Steggall volunteered to do it. He parked his truck near the jet blower, walked to it and turned it off. (Filing No. 57-1 at CM/ECF p. 13). Steggall walked back to his truck, opened the door and put his right leg up into the cab. His left leg slipped, and he fell. (Id.)

         Steggall alleges that BNSF negligently and carelessly failed to provide Plaintiff with a safe place to work by committing enumerated negligent acts or omissions. (Filing No. 1 at CM/ECF pp. 2-3). He alleges that in addition to his injuries, he incurred pain and suffering, medical and hospital expenses, and inconvenience, anguish, and disability as a direct and proximate cause of BNSF's negligent acts or omissions.

         The facts relevant to each of the pending motions will be discussed, below.

         II. ANALYSIS

         A. Motion to Exclude Expert Witness

         i. Background

         Steggall disclosed Hansen as a retained expert. Hansen is a retired Union Pacific Railroad Company employee who held several positions related to track welding and maintenance. (Filing No. 54-1 at CM/ECF p. 22, Filing No. 54-5 at CM/ECF pp. 1-2). Hansen now provides expert consulting services exclusively for railroad litigation matters.

         Hansen concluded that BNSF failed to provide Steggall a reasonably safe work environment on or about January 4, 2015. (Filing No. 54-1 at CM/ECF pp. 18-19). Specifically, he opined that:

• BNSF Railway failed to comply with its Winter Safety Bulletins and Preparedness Plans by making sure that the walking surfaces at the parking lot area were cleared of ice and snow and treated with de-icers such as sand or salt, or the area was shut down until conditions improved.
• BNSF Railway failed to comply with BNSF Maintenance of Way Safety Rules that require employees must participate in a Job Safety Briefing before beginning work and when work or job conditions change that includes a discussion of the existing or potential hazards and ways to eliminate or protect against hazards, review of the potential for slips, trips and falls, correct methods for walking in snowy and icy conditions and the correct methods for getting on and off equipment.
• BNSF Railway failed to comply with BNSF Maintenance of Way Safety Rules that require co-workers such as Mr. Steggall be warned of all unsafe practices and/or conditions and that warning signs, placards or cones be placed at an area identified as posing potential hazards.
• BNSF Railway failed to comply with BNSF Maintenance of Way Operating Rules and its Safety Vision that require its property be kept in a safe condition and that all known hazards in the work environment will be eliminated or safeguarded.
• BNSF Railway failed to comply with the standards of care that are the custom and practice in the industry and of BNSF Railway, which include:
o BNSF Safety Briefing Winter Preparedness Action Plans and Safety Briefing Bulletins and Reminders;
o BNSF Railway Slip, Trip, Fall Prevention Guidelines;
o BNSF Maintenance of Way Operating Rule 1.24;
o BNSF Maintenance of Way Safety Rules 5-1.1., 5-1.2.4, S-1.2.6 and S-25.1

Id. at 19. Hansen intends to offer his expert opinion based on his prior work experience, his review of the materials and information and the “specialized knowledge and technical training of all aspects of Railway Engineering as it relates to this case.” (Filing No. 54-1 at CM/ECF p. 10).

         ii. Analysis

         BNSF alleges the pleadings, depositions, and discovery materials show that Hansen's expert testimony must be precluded pursuant to Fed.R.Evid. 702 and Daubert v. Merrell Dow Pharm., Inc.,509 U.S. 579 (1993). (Filing No. 52). Steggall opposes BNSF's motion, alleging that the Rule 702 inquiry is a “flexible one, ” and any doubts as to the admissibility of ...


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