Jeffery A. Kopplin, Plaintiff-Appellant,
Wisconsin Central Limited, d/b/a CN, Defendant-Appellee.
September 18, 2018
from the United States District Court for the Eastern
District of Wisconsin. No. 16-cv-588 - Pamela Pepper, Judge.
Sykes, Barrett, and St. Eve, Circuit Judges.
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.
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.
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.
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
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.
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.
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.
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 ...