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Lough v. BNSF Railway Co.

United States District Court, D. New Mexico

July 16, 2019

PAUL LOUGH, Plaintiff,



         While 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.

         I. Factual Background[1]

         Mr. 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.

         Because 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.

         A. History of BNSF Issued Non-Breakaway Vests

         To 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).

         Against 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.”).[2] 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.

         B. Change to Breakaway Vests

         In 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[3] - 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.

         After 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.

         In 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 Dep. 156:9-17.

         Mr. 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.

         C. Expert Testimony and Reports[4]

         1. Terence J. Fischer's Reports, Deposition Testimony, and Affidavit

         To 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.”).

         For 24 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 Report”).

         In his two expert reports, Mr. Fischer used the “typical human factors analysis” which he described at deposition as follows:

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.

         Fischer 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.

         May 30 Fischer Report at 11.

         Mr. 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.

         In his 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.

         Based 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 - 61:1-6.

         Mr. 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.

         In his 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.

         Mr. 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 purchase.” Id.

         Finally, 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.

         2. Allen Parkman's Expert Reports and Deposition Testimony

         Mr. 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”).

         Mr. 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. Id.

         a. Financial Loss Approach

         The 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.

         In 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 ...

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