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Kopplin v. Wisconsin Central Ltd.

United States Court of Appeals, Seventh Circuit

February 1, 2019

Jeffery A. Kopplin, Plaintiff-Appellant,
Wisconsin Central Limited, d/b/a CN, Defendant-Appellee.

          Argued September 18, 2018

          Appeal from the United States District Court for the Eastern District of Wisconsin. No. 16-cv-588 - Pamela Pepper, Judge.

          Before Sykes, Barrett, and St. Eve, Circuit Judges.

          Sykes, Circuit Judge.

         Jeffery Kopplin brought two claims against the Wisconsin Central railroad under the Federal Employers' Liability Act ("FELA"), 45 U.S.C. §§ 51 et seq. Both rest on the same allegation: that Kopplin injured his elbow in an effort to operate a broken railroad switch while employed by Wisconsin Central. The district court entered summary judgment for the railroad in part because Kopplin could not prove that the broken switch caused his injury. While the parties raise several other questions, that alone is sufficient to affirm.

         I. Background

         Prior to his injury, Kopplin worked for Wisconsin Central as a train conductor. On January 24, 2014, he pulled a train into the Fond du Lac yard. To bring the train onto the correct track, Kopplin had to get out and "throw" a switch, which involves pulling a handle to correctly align the tracks. The weather that morning was severe, with below-freezing temperatures and 20- to 30-mile-per-hour winds. As a result ice and snow had built up inside the switch's mechanisms. Kopplin tried to remove the ice and snow with a simple broom-the only tool Wisconsin Central had provided-but after straining himself for several minutes, the switch would not budge.

         Kopplin claims that this effort was the initial cause of a long-term elbow disability, though the evidence is less than clear. A video of the incident shows no immediate signs of injury. And Kopplin never mentioned any pain symptoms to his coworkers until two hours later-time in which he continued to perform other physical tasks.

         After his physician diagnosed him with medial and lateral epicondylitis, Kopplin took time off work to receive treatment. Among other things, he received an effective pain-relief injection in February. By April the injury had fully healed. But in August the pain suddenly reemerged when Kopplin tried to drive a riding lawnmower one-handed while holding his son. After that his career as a conductor was effectively over.

         Kopplin then brought two related FELA claims against Wisconsin Central, both alleging that the railroad was responsible for the broken switch and the injury it allegedly caused. The first is a run-of-the-mill negligence claim. The second is a negligence per se claim premised on Wisconsin Central's alleged failure to comply with 49 C.F.R. § 213.135, the regulation that sets national standards for switches. Kopplin's sole causation expert was Dr. Etienne Mejia, who testified by deposition that the pain-relief injection Kopplin received often provides only temporary relief, which could explain the pain's reemergence. However, Dr. Mejia conceded that he never investigated whether something other than the January 24 incident could have caused the initial injury. In fact, he testified that he knew so little about Kopplin's job that it would be mere speculation to say throwing a switch even could cause the elbow injury. Moreover, he admitted that he did not investigate whether Kopplin's other physical activities-say, riding a lawnmower in a dangerous fashion-could have caused the renewed elbow problems in August.

         For two months after the deposition, Kopplin made no attempt to supplement Dr. Mejia's testimony. But after Wisconsin Central moved for summary judgment, Kopplin attached to his response a new affidavit by Dr. Mejia. The contents of that affidavit were markedly different than the deposition testimony. Dr. Mejia definitively stated that the January 24 incident caused the elbow injury, explaining that the nature of the injury was so clear that there was no need to even consider other potential causes. In the end, Kopplin's effort to bolster his causation evidence was in vain. The judge refused to consider the affidavit because it contradicted sworn deposition testimony. And without the affidavit, she found Dr. Mejia's testimony unreliable under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). As a result, Kopplin had no causation evidence at all.

         The judge addressed several other questions, including the extent to which regulations promulgated under the Federal Railroad Safety Act define the standard of care for FELA actions and the extent to which 49 C.F.R. § 213.5(a) imposes a notice requirement for negligence per se claims. Because the failure to prove causation is fatal to both FELA claims, see Walden v. Ill. Cent. Gulf R.R., 975 F.2d 361, 364 (7th Cir. 1992), we need not reach those issues here.

         II. Discussion

         We review a summary judgment de novo, asking whether the movant has shown "that there is no genuine dispute as to any material fact." Hansen v. Fincantieri Marine Grp., LLC,763 F.3d 832, 836 (7th Cir. 2014) (quotation marks omitted). We review the exclusion of the affidavit "for abuse of discretion, giving the trial judge much deference." Buckner v. Sam's Club, Inc., 75 F.3d 290, 292 (7th Cir. 1996). Finally, "we review de novo a district court's application of the Daubert framework. If the district court properly adhered to the Daubert framework, then we review its decision to exclude (or not to ...

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