This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Steven A. Olson,
Santa Fe Railway Company,
Filed August 22, 2006
Hennepin County District Court
File No. PI 02-008021
Charles T. Hvass, Jr., Ingebritson & Associates, LLP, 1025 Medical Arts Building, 825 Nicollet Mall, Minneapolis, MN 55402 (for appellant)
Timothy K. Masterson, Spence, Ricke, Sweeney & Gernes, P.A., 600 Degree of Honor Building, 325 Cedar Street, St. Paul, MN 55101 (for respondent)
Considered and decided by Lansing, Presiding Judge; Willis, Judge; and Parker, Judge.*
U N P U B L I S H E D O P I N I O N
This is an appeal from summary judgment granted to respondent railroad on appellant’s negligence claim under the Federal Employers’ Liability Act (FELA). Appellant argues that (a) the district court improperly made findings of fact to determine that the railroad did not breach a duty to appellant; and (b) the district court improperly weighed the facts to determine that the railroad’s alleged negligence was not the cause of appellant’s lung injury. Appellant also requests that this case be remanded with directions that a different judge be assigned for trial. Because we conclude that for FELA purposes, appellant produced sufficient evidence to create a question of fact regarding the railroad’s breach of duty and the causation of appellant’s lung injury, we reverse. Because appellant did not file a notice to remove the trial judge under Minn. R. Civ. P. 63.03 and has not demonstrated disqualifying bias or prejudice, we deny appellant’s request to direct that a new judge be assigned to hear this case on remand.
Appellant Steven A. Olson was employed by respondent Burlington Northern and Santa Fe Railway Company (Burlington Northern) from 1970 until 1998. Olson claims that he was exposed to rock dust in the course of his employment by Burlington Northern when he dumped ballast from railroad cars and when he worked on surfacing gangs or tie gangs. Burlington Northern provided Olson with disposable paper masks for these tasks, but Olson claims that the masks were “useless” because “[w]hen breathing, and sweating in the summer air, the mask would become moist[, and the] dust would cling to the mask resulting in suffocation if the mask continued to be worn.” Olson states that when he complained about the lack of protective devices to his supervisors, he was told that nothing else could be done.
In March 2001, Olson sued Burlington Northern under the Federal Employers’ Liability Act (FELA), 45 U.S.C. §§ 1-60 (2000), alleging that he suffered injuries to his lungs, hips, knees, back, and “other body parts” as a result of Burlington Northern’s negligence.
In a deposition, Olson testified about his lung injuries. He said that he had experienced dizziness, “shortness of breath,” and “gasp[ing] for air” for a couple of years and that he had seen four medical doctors regarding these symptoms.
To support his lung-injury claim, Olson introduced the report and affidavits of Dr. David Bonham. Bonham examined Olson at the request of Olson’s attorney “to evaluate the presence of any lung disease.” Bonham’s report includes “impressions” of “asbestos related pleural disease” and “chronic industrial bronchitis with mild air flow obstruction.” He states in his report that
the patient’s respiratory problems are, I believe, related to his exposure to various dusts and other respiratory irritants while working for the railroad. . . . [H]is industrial bronchitis is related to the very heavy rock dust that he was repeatedly exposed to over the years as well as other dust exposures.
Bonham states in his May 2003 affidavit:
It is my opinion that Mr. Olson’s primary lung problem is caused by chronic industrial bronchitis. The cause of chronic industrial bronchitis for Mr. Olson – exposure to rock dust – has been a known hazard to the medical community for decades, and the causation of chronic industrial bronchitis by exposure to rock dust was being taught when I was going to medical school in the late 60’s and early 70’s.
Bonham further states, “It is also my opinion that any worker exposed to rock dust . . . should have been provided filtration devices that would have prevented the rock dust from getting into his lungs.”
Northern moved for summary judgment. The
district court concluded that (1) Olson’s knee- and back-injury claims were
barred by the statute of limitations, and (2) Olson failed to produce
evidence necessary to establish the element of duty on his negligence claim for
his lung injuries; and the district court granted summary judgment to
Burlington Northern. This court affirmed
summary judgment on Olson’s knee- and back-injury claims, but it reversed and
vacated the district court’s order regarding Olson’s negligence claim for his
lung injuries. Olson v.
After the remand, Burlington Northern again moved for summary judgment. The district court granted Burlington Northern’s motion, concluding that Olson did not demonstrate that Burlington Northern breached its duty and failed to demonstrate causation. This appeal follows.
D E C I S I O N
reviewing an appeal from summary judgment, this court asks whether (1) there
are any genuine issues of material fact; and (2) the district court’s
application of the law was erroneous. State by Cooper v. French, 460 N.W.2d 2,
Olson appeals from summary judgment dismissing his lung-injury claim under the Federal Employers’ Liability Act (FELA), 45 U.S.C. §§ 1-60 (2000). FELA imposes liability on railway companies for work-related injuries that are caused in whole or in part by the company’s negligence and allows injured railroad workers to recover for the negligence of their employers. 45 U.S.C. § 51; Lecy v. Burlington N. & Santa Fe Ry.,663 N.W.2d 589, 592 (Minn. App. 2003) (citing Ackely v. Chicago & N.W. Transp. Co., 820 F.2d 263, 266 (8thCir. 1987)). Both state and federal courts have jurisdiction to hear FELA claims. 45 U.S.C. § 56.
FELA plaintiff must prove all of the essential common-law elements of
negligence. Smith v. Soo Line R.R.,
617 N.W.2d 437, 439 (Minn. App. 2000) (citing Fulk v.
summary-judgment motion cannot be defeated by “unverified and conclusory
allegations or by postulating evidence that might be developed at trial.” Gradjelick,
646 N.W.2d at 230. But under FELA, a
plaintiff’s burden of proof to present a case to the jury “is significantly
lighter . . . than it would be in an ordinary negligence case.” Smith,
617 N.W.2d at 439. Under FELA, “the test
of a jury case is simply whether the proofs justify with reason the conclusion
that employer negligence played any part, even the slightest, in producing the
injury or death for which damages are sought.”
Breach of Duty
Olson first argues that the district court erred by finding that Burlington Northern did not breach its duty to provide Olson a reasonably safe workplace. He argues that the district court improperly found facts when it determined that Olson had provided no evidence that the masks were “not appropriate.” A railroad company has a duty to provide its employees with a reasonably safe workplace. Lecy, 663 N.W.2d at 592 (citing Ackley, 820 F.2d at 267). “A railroad breaches its duty to provide a safe workplace when it knows or should know of a potential hazard in the workplace, yet fails to exercise reasonable care to inform or protect its employees.” Smith, 617 N.W.2d at 439 (citing Gallose v. Long Island R.R., 878 F.2d 80, 84-85 (2d Cir. 1989)).
Here, the district court found that Burlington Northern “knew of the potential hazard of dust exposure.” Burlington Northern required employees “working around any ballast disturbing activities . . . to conform to the requirements of the Burlington Northern Respiratory Protection Policy for Maintenance of Way Employees.” And it provided disposable paper masks to Olson. Therefore, Olson’s argument against summary judgment on Burlington Northern’s breach of duty rests on his assertion that the masks provided by Burlington Northern did not work and that he “complained about the lack of protective devices” but was told that “nothing else could be done.” Olson also relies on Bonham’s affidavit to support his argument that Burlington Northern did not provide adequate masks. Although Bonham does not state that the paper masks were inappropriate, he does state that railroad workers exposed to rock dust “should have been provided filtration devices that would have prevented the rock dust from getting into his lungs.”
court has held that “[a] FELA plaintiff need only present a scintilla of
evidence tending to show negligence to survive summary judgment.”
We conclude that Olson’s affidavit and deposition testimony and Bonham’s affidavit provide at least a scintilla of evidence that Burlington Northern breached its duty of care here. See, e.g., Murphy v. Union Pac. R.R., 57 P.3d 799, 802-03 (Idaho 2002) (finding that appellant’s deposition testimony and affidavit were sufficient to create a genuine issue of material fact); Hahn v. Union Pac. R.R., 816 N.E.2d 834, 844 (Ill. App. Ct. 2004) (holding that the complaint and appellant’s deposition testimony demonstrated the existence of a genuine issue of material fact regarding the railroad’s negligence). Therefore, a genuine issue of material fact exists regarding Burlington Northern’s breach of duty.
Northern argues that Olson failed to produce competent, scientific evidence
that it failed to provide a reasonably safe workplace. But the cases relied on by Burlington
Northern to support its argument do not address the quantum of evidence
required of FELA plaintiffs to survive summary judgment. See
Savage v. Union
Olson also argues that the district
court erred by engaging in fact-finding to support its conclusion that Olson
failed to demonstrate causation. Whether
a genuine issue of material fact exists is reviewed de novo. Fairview
Hosp. & Health Care Serv. v. St. Paul Fire & Marine Ins. Co., 535
N.W.2d 337, 341 (Minn. 1995). On a
summary-judgment motion, the district court may not weigh the evidence or make
The district court concluded that Olson “failed to demonstrate causation with the conclusory, unsupported report and affidavits” of his expert. Burlington Northern asserts that the district court properly exercised its discretion when it determined that Bonham’s opinions were inadmissible under the Frye-Mack standard and that, as a consequence, Olson “failed to produce competent evidence to support a finding of causation.” But the district court’s order does not mention the Frye-Mack standard for the admissibility of expert testimony or any evidentiary rules. Neither did the district court make any evidentiary ruling regarding Bonham’s methodologies or conclusions; the district court did not find that Bonham’s opinion is inadmissible or excluded. The district court also does not state that without Bonham’s testimony or opinion, Olson failed to establish the existence of a genuine issue of material fact regarding the causation of his injuries. There is no evidentiary ruling for this court to review here. Rather, the district court erred by weighing the evidence to conclude that Olson failed to demonstrate causation.
We must then determine whether a genuine issue of material fact exists regarding the causation of Olson’s lung injury. Bonham’s diagnostic impressions of Olson include chronic industrial bronchitis with mild air-flow obstruction. Bonham’s report states his opinion that Olson’s “respiratory problems are . . . related to his exposure to various dusts and other respiratory irritants while working for the railroad.” He also states in his report that Olson’s “industrial bronchitis is related to the very heavy rock dust that he was repeatedly exposed to over the years as well as other dust exposures.” Bonham’s May 2003 affidavit states, “The cause of chronic industrial bronchitis for Mr. Olson – exposure to rock dust – has been a known hazard to the medical community for decades, and the causation of chronic industrial bronchitis by exposure to rock dust was being taught when I was going to medical school in the late 60’s and early 70’s.” In light of the minimal evidence that a FELA plaintiff is required to produce to survive summary judgment, as discussed above, we conclude that Bonham’s report and affidavits create a genuine question of material fact regarding whether Olson’s injury was caused by his exposure to rock dust during his employment with Burlington Northern.
Because genuine issues of material fact exist regarding both breach of duty and causation, the district court erred by granting summary judgment to Burlington Northern on Olson’s FELA negligence claim relating to his lung injury.
Request for Reassignment
requests that we direct the assignment of a different judge to his case on
remand. He made no motion before the
district court seeking the judge’s removal.
And this court may decline to address a request to remove a district
court judge absent prior consideration by the district court. Ag Serv.
of Am., Inc. v. Schroeder, 693 N.W.2d 227, 236 (
Motion to Strike Footnote
appeal, Olson moved this court to strike footnote one from Burlington
Northern’s brief because it refers to Bonham’s deposition, which is not a part
of the record before this court. This court
will not consider matters not received in evidence in the district court. Thiele
v. Stich, 425 N.W.2d 580, 582-83 (
Reversed and remanded.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.