United States District Court, W.D. Arkansas, Harrison Division
MARION D. SPENCE II PLAINTIFF
UNION PACIFIC RAILROAD COMPANY DEFENDANT
MEMORANDUM OPINION AND ORDER
TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE.
before the Court are Defendant Union Pacific Railroad
Company's ("Union Pacific") Motion for Summary
Judgment (Doc. 34), Brief in Support (Doc. 35), and Statement
of Undisputed Material Facts (Doc. 36). No. response was ever
filed to these documents. For the reasons given below, Union
Pacific's Motion is GRANTED.
Spence filed this lawsuit against his former employer, Union
Pacific, in September of 2017. He alleges that three years
earlier, in September 2014, he sustained a shoulder injury on
the job, due to Union Pacific's negligence. He brings
this action under the Federal Employers' Liability Act
("FELA"), which makes railroad companies liable to
their employees whom they have negligently injured.
See 45 U.S.C. § 51. On January 18, 2019, Union
Pacific moved for summary judgment on Mr. Spence's
claims. See Doc. 34. Mr. Spence never filed any
response, despite being given an extended deadline by which
to do so. See Doc. 39. Union Pacific's Motion is
now ripe for decision.
party moves for summary judgment, the Court must grant it
"if the movant shows that 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). The Court must
view the facts in the light most favorable to the non-moving
party, and give the non-moving party the benefit of any
logical inferences that can be drawn from the facts.
Canada v. Union Bee. Co., 135 F.3d 1211, 1212-13
(8th Cir. 1997). The moving party bears the burden of proving
the absence of any material factual disputes. Fed.R.Civ.P.
56(a); Matsushita Bee. Indus. Co. v. Zenith Radio Corp.,
Alb U.S. 574, 586-87 (1986).
moving party meets this burden, then the non-moving party
must "come forward with 'specific facts showing that
there is a genuine issue for trial.'"
Matsushita, 475 U.S. at 587 (quoting then-Fed. R.
Civ. P. 56(e)) (emphasis removed). These facts must be
"such that a reasonable jury could return a verdict for
the nonmoving party." Allison v. Flexway Trucking,
Inc., 28 F.3d 64, 66 (8th Cir. 1994) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). "The nonmoving party must do more than rely on
allegations or denials in the pleadings, and the court should
grant summary judgment if any essential element of the prima
facie case is not supported by specific facts sufficient to
raise a genuine issue for trial." Register v.
Honeywell Fed. Mfg. & Techs., LLC, 397 F.3d 1130,
1136 (8th Cir. 2005) (citing Celotex Corp v.
Catrett, 477 U.S. 317, 324(1986)).
Local Rules require every movant for summary judgment to
support its motion with "a separate, short and concise
statement of the material facts as to which it contends there
is no genuine dispute to be tried." See Local
Rule 56.1(a). Likewise, every opponent of summary judgment
must file a statement of "the material facts as to which
it contends a genuine dispute exists to be tried."
See Local Rule 56.1(b). All facts in the
movant's statement "shall be deemed admitted unless
controverted by" the opponent's statement.
See Local Rule 56.1 (c). The facts described below
are treated as undisputed and drawn directly from Union
Pacific's Statement of Undisputed Material Facts and
supporting exhibits, because Mr. Spence never filed any
response controverting them.
September 2014, Mr. Spence was working for Union Pacific in
Laredo, Texas. See Doc. 36, ¶1. His initial job
was to lay tie plates on crossties, using something called a
"gabby stick." See Id. at ¶¶
2-3. For this Opinion and Order's purposes there is no
need to dive deeply into the details of what that task
entailed, other than to observe that it involved repeatedly
lifting, moving, and setting down heavy things. See id.;
see also Doc. 35-1, p. 34. At some point during Mr.
Spence's first week on this job, he began experiencing
shoulder pain, which then steadily increased. See
Doc. 35-1, p. 33. During Mr. Spence's deposition, he was
unable to recall a specific incident when he first began
experiencing this pain. See Id. After following the
advice of one of his foremen to take the rest of that day
off, Mr. Spence returned to work the following day and laid
tie plates all day. See Id. at 34. Then on the next
day, he was reassigned to a different task and does not
appear to have laid tie plates again in September 2014, after
which time he took nineteen months off from work. See
Id. at 34-35, 38-40.
Mr. Spence's time off from work he underwent shoulder
surgery to treat chronic impingement and to repair an
anterior labral detachment. See Doc. 35-2, ¶ 6.
He also received several MRIs, both during and after his time
off from work. See Id. at ¶¶ 5, 7. Union
Pacific's medical expert, Dr. Raymond Peeples, Jr., has
reviewed these and other medical records, and opined that
"Mr. Spence has a degenerative condition of impingement
and associated incidental labral tear," and that
"ftjhese are unrelated to activities at work and
specifically unrelated to the laying of tie plates in
September 2014." See Id. at ¶ 10. Dr.
Peeples has further opined that based on his review of the
medical records, "there is no objective evidence of an
acute injury to Mr. Spence," because impingement
syndrome of the shoulder is a degenerative rather than
traumatic condition, which is to say that it is simply
"part of the natural aging process." See
Id. at ¶ 11. Dr. Peeples observes that his opinion
agrees with that of Mr. Spence's own treating
orthopedist, Dr. Merwin Moore, who indicated in November 2015
that Mr. Spence's shoulder "condition is not work
related." See Id. at ¶¶ 5, 7, 9.
Spence has not provided any expert reports of his own in this
case-not even simply to rebut the opinions of Dr. Peeples.
Union Pacific contends that this deficiency is fatal to Mr.
Spence's case. The Court agrees.
as here, a plaintiff in a FELA case cannot "point to a
specific incident that injured him" and the defendant
railroad presents a medical expert report opining that the
plaintiff's work at the railroad "did not cause the
injury in question," then the plaintiff must present
expert testimony of his own to establish a causal connection
between the injury and whatever incident is alleged to have
caused the injury, "unless the connection is a kind that
would be obvious to laymen, such as a broken leg from being
struck by an automobile." See Brooks v. Union Pac.
R.R. Co., 620 F.3d 896, 899 (8th Cir. 2010). Here, as in
Brooks, the only evidence in the record regarding
causation is that Mr. Spence's condition is degenerative
rather than traumatic. Cf. 620 F.3d at 897, 898.
Since Mr. Spence has no "expert opinion to refute Union
Pacific's expert causation evidence," there are
"no genuine fact disputes regarding whether Union
Pacific caused [his] injury," which is "an
essential element under FELA." See Id. at 900.
Thus, summary judgment is appropriate.