United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
C. HERRERA UNITED STATES DISTRICT COURT JUDGE
working as a conductor for his employer, BNSF Railway
Company, Paul Lough injured his ankle after his BNSF-issued
safety vest snagged a doorway bolt. Mr. Lough asserts
liability for negligence under the Federal Employers'
Liability Act, 45 U.S.C. §§ 51-60
(“FELA”) (1981 & Supp. 2018), maintaining
that BNSF should have either provided him a vest that would
not get snagged, or one that would rapidly
“breakaway” if snagged. BNSF moved to exclude two
of Mr. Lough's expert witnesses (ECF Nos. 82 and 83) and
for summary judgment (ECF No. 84). Mr. Lough, in turn, moved
to exclude trial evidence of collateral source benefits (ECF
No. 81). After considering the motions, briefs, evidence, and
relevant law, the Court rules as described herein.
Lough was a Train, Engine and Yard (“TY &E”)
employee who worked as conductor within a locomotive cab. On
April 28, 2013, while exiting the locomotive's front
door, the shoulder opening of Mr. Lough's orange
visibility vest snagged a bolt hinge on the door, causing him
to step back and injure his left ankle. See
Def.'s Mot. for Summ. J, ¶¶ 1, 2
(“MSJ”). In his personal injury report following
the incident, Mr. Lough said that something in his ankle
“popped … really hard and loud.”
Id. ¶ 3; Tr. of Statement of Paul Lough
(“Lough Statement”) 7:15-16, ECF No. 84-1. Mr.
Lough's safety vest was issued to him by BNSF's
Supervisor's Office in Amarillo, Texas. See
Pl.'s Resp. Br., Additional Fact (“AF”)
¶ A. The vest was a “zippered” or
“non-breakaway” vest, as opposed to a
“breakaway” vest. See Def.'s MSJ
¶ 4. Mr. Lough testified that in his career he had
previously caught his vest in the same manner three or four
times. See AF ¶ F.
of his injury, Mr. Lough sustained torn peroneus longus and
peroneus brevis tendons in his left ankle. See AF
¶ PP, ECF No. 89. This led to a surgical repair of Mr.
Lough's tendons in August 2013 and a total ankle
arthroplasty in October 2015. Id.
History of BNSF Issued Non-Breakaway Vests
better contextualize the facts of this case, the Court
recounts the relevant Occupational Safety and Health
Standard, a federal regulation also known as OSHA. Under
OSHA, an employer like BNSF must assess and determine if
worksite “hazards are present.” 29 C.F.R. §
1910.132(d)(1) (West 2017). If so, an employer must provide
to risk-exposed employees necessary “personal
protective equipment” or “PPE.”
Id. The employer must “[s]elect, and have each
affected employee use, the types of PPE that will protect the
affected employee from the hazards identified in the hazard
assessment.” Id. § 1910.132(d)(1)(i).
this backdrop, BNSF issued non-breakaway vests to certain
employees. Mr. Lough and BNSF employees Chris Followill and
Audie Martin testified that a locomotive's cab is a
confined space with narrow exits and protrusions such as door
handles and bolts. See AF ¶ G. To travel in and
out of a locomotive's doorway, Mr. Lough - who is
6'3'' and weighs 280 pounds - testified that,
“you have to use every bit of room you've got in
there” and that “it is not like you walk out that
door and you don't brush up against the sides of it
… [y]ou have to use every inch of that walkway that
you can.” Deposition of Paul Lough 118:21-25, ECF No.
89-1 (“Lough Dep.”); AF ¶ I. In addition to
Mr. Lough, four other BNSF workers stated that their
non-breakaway vests snagged protrusions within the
locomotive. See Deposition of Audie Martin 55:21-24,
ECF No. 89-3 (“Martin Dep.”); Deposition of Chad
Griswold 64:21-23, ECF No. 89-5 (“Griswold
Dep.”); Deposition of Chris Followill 59:3-7, ECF No.
89-6 (“Followill Dep.”); Deposition of Art
Moffett 28:25-29:1, ECF No. 89-8 (“Moffett
Dep.”). The non-breakaway vests hung loose. Lewis,
Followill and Moffett testified that when their vests snagged
on bolt hinges, they were performing their jobs in a
non-rushed, attentive manner. See AF ¶ M.
According to Griswold and Followill, the vest snagging
incidents caused them to stumble or lose their balance.
Id. ¶ O. Mr. Martin testified that other TY
& E employees complained about the non-breakaway vests.
See Martin Dep. 100:15-21. Additionally, Mr. Moffett
testified that as local chairman he received complaints that
the non-breakaway vests were “hang[ing] up on
everything.” Moffett Dep. 85:12-86. Mr. Moffett also
testified that as local chairman he relayed to a
superintended employees' complaints about non-breakaway
vests catching on things. Id. ¶ Y.
Change to Breakaway Vests
August 2010, BNSF promulgated rule S-21.1, which required
employees to wear breakaway vests. See Deposition of
Christopher Lewis 29:4-8 (“Lewis Dep.”). No. law,
regulation, or railroad standard mandated specifically the
use of breakaway vests. See Def.'s MSJ ¶
13; Deposition of Terence J. Fischer 98:6-20 (“Fischer
Dep.”). However, employees at three other Class I
railroads - Norfolk Southern Railway, CSX
Transportation, and the former Consolidated Rail Corporation
- stated that their railroad-employers provided them
breakaway vests only. See July 3, 2018 Report of
Terence J. Fischer, ECF No. 89-12 and 91-2 (“July 3
Fischer Report”). Moreover, one safety vest vendor only
sold breakaway style vests to railroads. Id.
BNSF introduced the breakaway vest rule in August 2010,
reports soon followed that the company issued vests did not
fit snugly and caught on door handles, armrests, cut levers,
and other equipment. See Safety Issue Resolution
Process Report (“SIRP”), ECF No. 84-8. BNSF
employee Chris Followill testified that engineers and
conductors complained about the breakaway vests catching on
“everything, ” from “the refrigerator door
as you walk up into the cab, ” to “older door
handles in the bathroom.” Followill Dep. 45:6-8;
56:2-4. At deposition, two BNSF employees testified that
sometimes the Velcro on the vests failed to peel away and
that if the vest hung on a door latch “it would just
snag you and jerk you back.” Griswold Dep. 53:3-4;
Martin Dep. 80:6-9. As BNSF employee Chad Griswold testified,
“the tear-away vests didn't tear away.”
Griswold Dep. 52:25 - 53:1. Mr. Griswold told Tom
Hoffmeister, a Road Foreman, about his breakaway vest hanging
up while exiting the locomotive. Id. 60:20-25. Mr.
Lewis testified that when he looked up SIRP reports from 2009
to 2018, the only two employee safety complaints regarding
vests concerned breakaway vests specifically. See
Lewis Dep. 53:9-25 - 54:1-10.
March 2011, BNSF amended rule S-21.1 to remove the breakaway
only requirement. See Followill Dep. 36:9-16, ECF
No. 84-6. Under the amended rule employees could still wear
vests; however, employees could also wear high visibility
t-shirts, coats, jackets, or rain gear in lieu of the vest.
Id. 36:25-37:1. As part of its “corrective
action, ” BNSF proposed giving employees a monetary
allowance to purchase their own PPE. See AF ¶
R. However, custom and practice by TY & E employees was
to wear whatever safety clothing BNSF gave them. See
Lewis Dep. 68:23-25:69-1-4; Followill Dep. 63:15-17. And
employees were unaware that they could purchase their own PPE
in lieu of wearing the BNSF issued vests. See
Griswold Dep. 80:1-6. For example, Griswold testified that he
never purchased a high visibility t-shirt because he thought
BNSF had to purchase the t-shirts and that he “[did
not] know where to get [one.]” Id. 61:12-14.
Similarly, Mr. Lough testified that he wore whatever
protective gear BNSF told him to wear. See Lough
Followill testified that he “was very happy when we got
rid of the breakaways, ” because they caught on
everything. Followill Dep. 46:14-15. After the rule change,
BNSF stopped providing the breakaway vests and employees were
unaware that they could request one. See Moffett
Dep. 48:13-14; 86:23-25 - 87:1-3. At the time of Mr.
Lough's accident in 2013 few, if any, TY & E
employees wore anything other than the non-breakaway vests.
See AF ¶ T.
Expert Testimony and Reports
Terence J. Fischer's Reports, Deposition Testimony, and
investigate the cause of Mr. Lough's injury, he retained
the services of Terence J. Fischer, a certified expert in
human factors engineering or ergonomics, which is the study
of how man interacts with machines and how machines can be
designed so that humans can use them more safely and
efficiently. See Pretrial Order, ECF No. 103 ¶
3 at 18. Mr. Fischer holds a master's degree in human
factors engineering and a master's degree in the
biomechanics of impact trauma. See Fischer CV, ECF
No. 91-5 at 2. After completing his education, Mr. Fischer
worked for 12 years in safety and system safety and consulted
for the United States Air Force, Navy, Federal Aviation
Administration, as well as General Motors Corporation.
See Deposition of Terence J. Fischer 135:14-20, ECF
No. 91-3 (“Fischer Dep.”).
years he performed forensic human factors and accident
reconstruction, which included performing accident and human
factors analysis, accident scene inspections, and kinematics.
See Fischer CV at 3. He is certified in human
factors engineer and is a member of pertinent professional
organizations, including the Human Factors and Ergonomics
Society, American Society for Testing and Materials, American
Society of Biomechanics, and the American Society of Safety
Engineers. See id. at 1. Mr. Fischer prepared a
report on May 30, 2017, an amended report on July 3, 2018,
and he testified under oath. Following depositions by BNSF
employees Martin, Lewis, Griswold, Followill and Moffett, Mr.
Fischer reviewed those witnesses' depositions and filed a
supplemental affidavit that is also in the record.
See Affidavit of Terence J. Fischer, ECF No. 91-4
(“Fischer Aff.”). As part of his investigation in
this case, Mr. Fischer physically inspected and examined an
exemplar locomotive wherein he measured and photographed the
locomotive's doorway. See May 30, 2017 Report of
Terence J. Fischer, ECF No. 91-1, 11 (“May 30 Fischer
two expert reports, Mr. Fischer used the “typical human
factors analysis” which he described at deposition as
we go through and we review the documentation we receive
regarding the occurrence of the incident, the location of the
incident, what actions were taken by the individual parties
in the incident and what happened, then we, if we have the
opportunity to, we go to the scene, we look at what happened,
we take measurements, and then we apply our knowledge and
experience and out databases, if necessary, on what a person
would do in that environment and how they would operate to
determine whether or not there was a violation of this safety
that needed to be provided to that person.
Dep. 143:17-25 - 144:1-9. The typical human factors analysis
methodology is used by others in Mr. Fischer's field of
expertise. See id. 145:5-10. Upon inspecting an
exemplar locomotive on May 12, 2017, in Amarillo, Texas, Mr.
Fischer recorded that the door opening was
6 inches above the floor level … 22 inches wide
… approximately 64 inches tall on the right side and
58 ½ inches on the left side. The door handle was 38
inches above the floor level. The bolt of the door latch was
54 inches above the floor level … the door opened 65
degrees … [and] [t]he maximum gap between the right
side of the door frame and the latch and handle were 22
inches and 19 inches, respectively.
Fischer Report at 11.
Fischer researched what standards would apply to this case.
See Fischer Dep. 145:21-24. He relied on BNSF rule
books, including the Train Dispatcher's Operations, and
Control Operator's Manual; BNSF Defect History; BNSF
Locomotive Work History Report, and BNSF Photo Log.
See May 30 Fischer Report at 3. He additionally
examined the OSHA regulation concerning PPE and American
National Standards Institute (“ANSI”) industry
standards. See Fischer Dep. 53:10-15. Mr. Fischer
also relied on an American Society of Safety Engineers
(“ASSE”) report addressing workplace safety.
See May 30 Fischer Report at 12. That report noted
that an ANSI standard for high-visibility public safety vests
“addressed the importance of safety provisions for
safety vests in workplaces, including breakaway construction
to minimize the potential for ‘catch and drag'
incidents.” See id. In addition, Mr. Fischer
relied on his engineering references, and explained that he
tries to identify applicable human factor elements or
biomechanical issues present in any given case. See
id. 136:21-25 - 137:1-2.
May 30, 2017 report, Mr. Fischer opined that “breakaway
vests reduce injuries and save lives by allowing workers to
get out of harm's way quickly” in case the vest
gets trapped, pulled in or snagged by machinery, equipment or
vehicles. May 30 Fischer Report at 12. Mr. Fischer said that
peel force specifications for Velcro are about 0.6 to 0.7
pounds per linear inch or per square inch of force, meaning
that “if you have a vest that has about 10 inches of
Velcro on one of your seams, you're talking about 6 or 7
pounds force to be able to pull that apart.” 56:16-25 -
57:1-3. However, Mr. Fischer conceded that “nobody has
identified the force required” for a breakaway vest to
break apart, and that he obtained the peel force
specification of 0.6 to 0.7 per linear inch of force from the
manufacturers' reported peel force specifications and
that he conducted internet searches on the issue. 55:23:24;
56:25 - 57:1-3; 126:9-20.
on his experience in evaluating human movement and walking
capabilities of a body in motion, Mr. Fischer opined that
“[i]f you have a 290 -285 pound person walking about 3
to 4 feet per second, the forces on that are going to be
significantly greater than what you see in the securing
portions of a tear-away vest.” 125:16-25126:1-8. To
analyze Velcro peel strength Mr. Fischer watched manufacturer
videos demonstrating “how easily these vests can be
pulled off, ” and concluded that it would be easy
enough to pull Velcro off a wearer “just by walking and
catching on something.” 131:12-20. Based on
manufacturer's peel force specifications, Mr. Fischer
opined that “tear-away vests are designed to be able to
pull off a person easily … or to stop from their
personal motion, ” and that breakaway vests with a
manufacturer specific peel force specification “are not
going to stop a 300-pound man from walking if … his
vest got snagged.” 58:17-25 - 59:1-6; 60:10-25 -
Fischer's inspection of the exemplar locomotive found
that its door was 22 inches wide and that “[m]ost
people are used to going through 36-inch doors, ” which
he identified as a potential hazard. 136:14-20. Mr. Fischer
did not attribute any fault to Mr. Lough for causing his
injury. Noting the combination of Mr. Lough's larger than
average size, lack of fault on his part, and the fact that he
had to crouch through the doorway while carrying work
equipment, Mr. Fischer opined that Mr. Lough's injury
“could have been prevented … if he had used a
vest that [was] designed to prevent him from snagging on [the
bolt.]” 140:19-25 - 141:1-13. According to Mr. Fischer,
the BNSF issued non-breakaway vest that Mr. Lough wore was
unsafe for use for TY & E employees working in the
confined environment of a locomotive since they would
encounter protrusions into their walking space. See
Fischer Aff. ¶ 23. Notwithstanding BNSF's
abandonment of the breakaway vest requirement in 2011, BNSF
should have required breakaway vests, Mr. Fischer opined.
See id. 151:15-25 - 152:1-8. In his May 30, 2017
report, Mr. Fischer concluded to a reasonable degree of
certainty that “the hazardous condition created by
… [BNSF's failure] to require, issue and ensure
that TY & E employees … were using breakaway style
… vests in accordance [with] safety standards”
caused Mr. Lough's injury and that had he been wearing a
breakaway vest, his injuries could have been prevented. May
30 Fischer Report at 13.
second expert report on July 3, 2018, Mr. Fischer evaluated
affidavit statements from eight current and former railroad
workers at Class 1 railroads other than BNSF. Mr. Lough
submitted into the evidentiary record the affidavit of one of
the railroad employees, Ms. Patricia Hirkala Hans, who stated
that she worked for 30 years for Conrail and Norfolk Southern
Railroads. See Affidavit of Patricia Hirkala Hans,
ECF No. 91-8 (“Hirkala Hans Aff.”). Part of her
job was to hand out safety vests. See id. She
reported that in her career she only distributed breakaway
vests and that “a non-breakaway wasn't even
available to order through our supply system, either at
Conrail or Norfolk Southern.” Id. Based on his
review of the eight employees' affidavits, he found that
the employees were only issued breakaway construction vests.
See July 3, 2018 Fischer Report at 4. He opined that
“[t]he failure [of] BNSF to only issue the breakaway
style of vest did not meet the level of safety provided by
other railroads and exposed its employees to a hazardous
condition.” Id. However, Mr. Fischer conceded
that he was unaware of any railroad industry standard
recommending or requiring tear-away vests. See
Fischer Dep. 101:1-4.
Lough also submitted the affidavit from a former CSX
Transportation and Conrail employee (this employee's
affidavit was not part of Mr. Fischer's report), who
supervised and purchased work equipment. See
Affidavit of Raymond G. Harbison, ECF No. 91-9
(“Harbison Aff.”). As the railroad's PPE
purchaser, Mr. Harbison stated that the “three-piece
breakaway type was the only style we were permitted to
Mr. Fischer reviewed the depositions of BNSF employees
Martin, Lewis, Griswold, Followill and Moffett that those men
gave as part of this litigation. See Fischer Aff.
¶ 3. In an affidavit summarizing his review of the
employees' statements, he concluded that they were issued
vests that were too large or loose fitting and that the
breakaway feature failed to release as needed; the arm holes
on the BNSF vests were a catch point that created a hazardous
condition; the men's vests routinely snagged protrusions
in the train engine passageways; and that in light of the
Human Factors and Safety standard the BNSF issued vests were
hazardous. See id. ¶¶ 6-10.
Allen Parkman's Expert Reports and Deposition
Lough retained the services of Mr. Allen Parkman to provide
opinions on Mr. Lough's financial losses stemming from
his injury. Mr. Parkman is a Regents' Professor Emeritus
of Management at the University of New Mexico, Anderson
School of Management. See Parkman CV, ECF No. 90-4.
He holds a Ph.D. in economics and a juris doctor. See
id. Mr. Parkman authored two expert reports.
See March 20, 2017 Report of Allen M. Parkman, ECF
No. 90-1 (“March 20, 2017 Parkman Report”); June
8, 2018 Report of Allen M. Parkman, ECF No. 90-2 (“June
8, 2018 Parkman Report”).
Parkman evaluated the total economic loss Mr. Lough incurred
because of his ankle injury. See March 20, 2017
Parkman Report at 2. He his framework used two approaches -
the “financial loss” and “value of life
approaches, ” that he said is used by economists.
Financial Loss Approach
financial loss approach estimates the amount of money
necessary to compensate Mr. Lough for his injury.
Id. The “loss” at issue consists of lost
income, fringe benefits, and household services. Id.
Mr. Parker opined that at the time of his injury, Mr. Lough
had a life expectancy of 23 years, a work life expectancy of
eight years, and that but-for the accident, he planned on
retiring at age 62. Id.
analyzing Mr. Lough's lost income, Mr. Parker noted that
Mr. Lough's last salary with BNSF was $72, 919.
Id. at 3. Mr. Parkman assumed that as of January
2016, Mr. Lough could have performed the job of dispatcher
with an annual salary of $24, 540 based on Ms. Janet
Toney's vocational opinion that Mr. Lough was capable of
sedentary or light duty work with BNSF. See June 8,
2018 Parkman Report. Mr. Parker assumed that Mr. Lough's
earnings would raise 2.5% per year, which is ...