RENDERED: JULY 22, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
JOHN L. ADKINS
APPEAL FROM PERRY CIRCUIT COURT
HONORABLE WILLIAM ENGLE III, JUDGE
ACTION NO. 07-CI-00774
CSX TRANSPORTATION, INC.
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BEFORE: NICKELL AND THOMPSON, JUDGES; ISAAC,1 SENIOR JUDGE.
NICKELL, JUDGE: John L. Adkins has appealed from the Perry Circuit Court’s
entry of summary judgment in favor of CSX Transportation, Inc. (CSXT) in his
action for personal injuries arising from his employment. After a careful review of
the law, the record and the briefs, we affirm.
Senior Judge Sheila R. Isaac sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
Adkins began his railroad career in 1970 working for a predecessor of
CSXT. He worked mainly as a carman2 and a car inspector until February 27,
2005, with the exception of the period between 1987 and 1995 when he was laid
off. During his tenure with CSXT, Adkins was employed at the Hazard, Crawford,
Ravenna, and Corbin, Kentucky railyards.
In 1976, Adkins sustained a work-related injury to his left knee
requiring surgical intervention in 1976 and 1977. He entered into a compensation
and settlement agreement with CSXT concerning that injury in 1978. Adkins
sought treatment in 2001 for pain in his left knee which he related “back to an
injury many years ago for which he had surgical reconstruction of ligaments.” He
underwent an additional surgery on his left knee on January 22, 2001. In 2007,
Adkins again sought treatment for his left knee, citing his work-related injury from
1976 as the cause. His physicians, however, believed the knee problems may not
have related to the prior injury, but rather resulted from degenerative changes
stemming from his work conditions.
On December 18, 2007, Adkins filed a two-count complaint against
CSXT for personal injuries arising under the Federal Employers’ Liability Act
(FELA), 45 U.S.C. §§ 51-60. He alleged he sustained injuries to his back, legs and
knees as a result of being required to work on large, uneven ballast3 and lifting
A carman inspects and repairs freight cars on tracks in yards and in dedicated car repair
As used in the railroad context, “ballast” means the crushed stone which is placed around and
under railroad tracks and ties for structural support, drainage and erosion protection.
heavy objects without sufficient mechanical or manual assistance over the course
of his career with CSXT. In addition to other claims, Adkins contended CSXT
used improperly sized ballast in its railyards, thus creating an unsafe working
environment. He alleged CSXT’s negligence was the precipitating cause of his
injuries. In the second count, Adkins alleged that on February 25, 2005, he injured
his back and legs while “working in an awkward position on large and uneven
ballast providing an unstable surface to inspect a train.” He again argued that
CXST’s negligence was the proximate cause of his injuries.
During the course of discovery, Adkins identified numerous witnesses
who were to testify on his behalf. One of those witnesses, Dr. Tyler Kress, was
identified as an expert ergonomist who was to opine regarding Adkins’ “work
environment, including risk factors consistent with Plaintiff’s injuries, job design
to minimize hazard exposure, and walking on uneven ballast.” After missing
numerous court-imposed deadlines and show cause hearings, and still unable to
produce a written opinion from Dr. Kress, Adkins formally withdrew Dr. Kress as
an expert witness. On October 26, 2009, the trial court entered an order precluding
Dr. Kress from testifying as an expert witness in this matter. Adkins produced no
other expert witnesses regarding the standard of care or industry standards
regarding Adkins’ work environment.
CSXT filed three separate motions for summary judgment. The first
sought partial summary judgment on Adkins’ ballast related claims based on the
preclusion provision contained in the Federal Railroad Safety Act (FRSA), 49
U.S.C. §§20101, et seq. Relying on the language contained in Nickels v. Grand
Trunk W. R.R., Inc., 560 F.3d 426 (6th Cir. 2009), the trial court granted the partial
summary judgment on October 26, 2009.
In the second motion, CSXT sought summary judgment on Adkins’
left knee claim alleging Adkins had previously been compensated for that injury
and was not entitled to double recovery for the same injury. The third motion
sought summary judgment on all of Adkins’ remaining claims on the ground that
Adkins could not prove CSXT was negligent as he had not produced any expert
testimony regarding the standard of care, nor would he be able to do so. On April
14, 2010, in a combined order, the trial court granted both of CSXT’s motions and
dismissed the action. The trial court found Adkins had failed to identify the
standard of care that CSXT had allegedly breached and was therefore unable to
establish a prima facia case of negligence. It found that expert testimony was
required to establish the standard of care and whether such standard was breached
but Adkins had not produced such testimony. The trial court then found CSXT’s
motion for summary judgment on Adkins’ knee injury claims was subsumed by its
ruling on the negligence issue and the ballast issue, but stated its belief that Adkins
had previously been compensated for the injury and could not recover again for the
same injury. To the extent Adkins was claiming a new injury or aggravation of his
previous injury, the trial court additionally found such claims were time-barred as
the FELA contains a three-year statute of limitations provision applicable to
Adkins’ claims, he knew or should have known in 2001 he had been injured and
the potential cause of such injury, and the instant action was not filed until 2007.
The trial court dismissed all of Adkins’ claims with prejudice. Adkins’ subsequent
motion to alter, amend or vacate the April 14, 2010, judgment was denied. This
Adkins argues the trial court erred in finding his FELA ballast claims
were precluded by operation of the FRSA, thus rendering its grant of partial
summary judgment on the issue infirm. He also contends the trial court
erroneously granted CSXT’s motions for summary judgment on his negligence and
knee injury claims as material issues of fact existed on those issues. We shall
address each of these rulings in turn.
The standard of review governing appeals from the grant of summary
judgment is well settled. We must determine whether the trial court erred in
concluding there was no genuine issue as to any material fact and the moving party
was entitled to judgment as a matter of law. Scifres v. Kraft, 916 S.W.2d 779, 781
(Ky. App. 1996). Summary judgment is only appropriate “if the pleadings,
depositions, answers to interrogatories, stipulations, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.” CR 56.03. In Paintsville Hospital Co. v. Rose, 683 S.W.2d 255 (Ky. 1985),
the Supreme Court of Kentucky held that for summary judgment to be proper it
must be shown that the adverse party cannot prevail under any circumstances. The
Supreme Court has also stated, “the proper function of summary judgment is to
terminate litigation when, as a matter of law, it appears that it would be impossible
for the respondent to produce evidence at the trial warranting a judgment in his
favor.” Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky.
Appellate courts are not required to defer to the trial court when factual
findings are not at issue. Goldsmith v. Allied Building Components, Inc., 833
S.W.2d 378 (Ky. 1992). “The record must be viewed in a light most favorable to
the party opposing the motion for summary judgment and all doubts are to be
resolved in his favor [citation omitted].” Steelvest, 807 S.W.2d at 480. However,
“a party opposing a properly supported summary judgment motion cannot defeat it
without presenting at least some affirmative evidence showing that there is a
genuine issue of material fact for trial.” Id. at 482. See also Philipps, Kentucky
Practice, CR 56.03, p. 418 (6th ed. 2005).
Adkins first argues the trial court erred in precluding him from
presenting evidence or testimony on his ballast-related claims. CSXT sought
partial summary judgment on Adkins’ ballast claims contending that such claims
were precluded by operation of the preemption clause contained in the FRSA,
which precludes claims if the Federal Railroad Administration (FRA) has issued a
regulation or order covering the subject matter underlying the claim. CSXT argued
49 C.F.R. § 213.103, a safety regulation governing track structure promulgated by
the FRA, covered the subject matter of Adkins’ FELA ballast claims, thus
requiring the trial court to grant summary judgment on the issue. In granting the
motion, the trial court found “the cases of Nickels v. Grand Truck (sic) Western
Railroad, Inc. and Cooper v. CSXT, 560 F.3d 426 (6th Cir. (Mich.) March 28, 2009)
to be instructive on the issue” and refused to rule inconsistently with those
In Nickels, the plaintiffs alleged they had suffered leg and back
injuries as a result of walking on railroad ballast. Similar to the instant case, the
Nickels plaintiffs alleged the railroad was negligent in failing to provide a safe
work environment by using improperly sized ballast in its railyards. The Sixth
Circuit found that although 49 C.F.R. § 213.103 did not specifically address ballast
size, the regulation subsumed the issue, and that the preemption clause of the
FRSA precluded the plaintiff’s FELA claims. Based on this reasoning, the trial
court ruled that Adkins was precluded from presenting testimony or evidence that
the size of ballast “caused, contributed to or aggravated any of Plaintiff’s alleged
injuries.” We disagree.
In the recent and factually similar case of Booth v. CSX
Transportation, Inc., 334 S.W.3d 897 (Ky. App. 2011), a panel of this Court
addressed the very issue presented in this appeal. The Booth Court refused to
adopt the Nickels holding and declined “‘to preclude a negligence claim under
FELA for any conduct by the railroad even remotely covered by a regulation
enacted under FRSA.’” Id. at 901-02 (quoting Grimes v. Norfolk Southern Ry. Co.,
116 F.Supp.2d 995, 1002-03 (N.D. Ind. 2000)). In reversing the lower court’s
ruling to the contrary, it found 49 C.F.R. § 213.103 did not cover the subject matter
at issue and thus held the FRSA did not operate to preclude Booth’s negligence
action. Likewise, we hold the trial court here erred in granting partial summary
judgment to CSXT on Adkins’ ballast-related claims.
Were this the sole issue presented in this appeal, we would be
required to reverse and remand for reconsideration. However, because we believe
other issues presented herein are dispositive, remand is unnecessary for the proper
resolution of the matter.
Adkins next contends the trial court erred in granting summary
judgment on his negligence claim. He believes the trial court incorrectly found
that because this was a cumulative injury claim he was required to present expert
testimony to establish the standard of care and breach of that standard. Adkins
alleges his testimony regarding his request for assistance in performing his work
duties and CSXT’s refusal to provide such assistance was sufficient to withstand a
motion for summary judgment as it tended to establish a causal connection
between CSXT’s alleged negligence and his alleged injuries, or at least created a
genuine issue of material fact to be decided by a jury. We disagree.
To succeed on a FELA negligence claim, a plaintiff is required to
plead and prove the common law elements of duty, breach, foreseeablity and
causation. Van Gorder v. Grand Trunk W. R.R., Inc., 509 F.3d 265 (6th Cir. 2007).
Although we agree with Adkins that FELA relaxes the standard of proof regarding
causation, it does not lessen the burden to prove the elements of negligence. “[A]
plaintiff cannot benefit from FELA’s relaxed causation standard unless he can
prove that the employer was negligent in the first place . . . .” Id. at 271. “FELA
claims, like common law negligence claims, must be supported by expert
testimony where they involve issues . . . beyond the common experience and
understanding of the average jury.” In re Amtrak Sunset Ltd. Train Crash in
Bayou Canot, Ala. on Sept. 22, 1993, 188 F.Supp.2d 1341, 1349 (S.D. Ala. 1999).
Whether expert testimony is required in a given case is squarely
within the trial court’s discretion. Keene v. Commonwealth, 516 S.W.2d 852, 855
(Ky. 1974). Absent an abuse of discretion, we will not disturb the trial court's
ruling. Baptist Healthcare Systems, Inc. v. Miller, 177 S.W.3d 676, 680-81 (Ky.
2005). Because the “business of operating a railroad entails technical and
logistical problems with which the ordinary layman has had little or no
experience[,]” Bridger v. Union Ry. Co., 355 F.2d 382, 389 (6th Cir. 1966), the
failure to provide expert testimony regarding the applicable standard of care is fatal
to Adkins’ claims. We do not believe that a lay juror would possess sufficient
knowledge of the working conditions of a railyard to independently determine
whether CSXT put Adkins at an unreasonable risk of cumulative trauma injury.
Likewise, and contrary to Adkins’ contention, the record does not contain
sufficient facts to permit an inference that CSXT knew or should have known that
the risk of injury posed by the conditions of its railyard was unreasonable.
Therefore, we hold the trial court did not abuse its discretion in holding Adkins
was required to present expert testimony regarding the applicable standard of care
and that CSXT breached that duty, and his inability to do so precluded his ability
to establish a prima facie case of negligence. There was no abuse of discretion and
the trial court correctly dismissed Adkins’ claims.
Finally, because of our holding on the negligence issue, we believe
Adkins’ arguments regarding the impropriety of the trial court’s grant of summary
judgment as to his knee injury are moot. We also believe the trial court’s reliance
on CSXT’s allegations of a prior recovery for the same injury and violations of the
applicable statute of limitations were mere surplusage, without which the grant of
summary judgment would still be proper. Therefore, no further discussion of
Adkins’ arguments is warranted.
For the foregoing reasons, the judgment of the Perry Circuit Court is
ISAAC, SENIOR JUDGE, CONCURS.
THOMPSON, JUDGE, CONCURS IN RESULT ONLY.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Alva A. Hollon, Jr.
John O. Hollon
Linsey W. West
James T. Blaine Lewis
Michael J. Henry
Thomas I. Eckert