Lewis v. Illinois Central Railroad Company

IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF ILLINOIS

SPRINGFIELD DIVISION

BRENT LEWIS, )

)

Plaintiff, )

)

v. ) No. 20-cv-3330

)

ILLINOIS CENTRAL )

RAILROAD COMPANY, )

)

Defendant. )

OPINION AND ORDER

SUE E. MYERSCOUGH, U.S. District Judge.

Plaintiff Brent Lewis is a retired employee of Defendant Illinois

Central Railroad Company (the “Railroad”). In December 2017, Mr.

Lewis suffered several injuries to his right foot and ankle. Three

years later, Mr. Lewis sued Illinois Central under the Federal

Employers’ Liability Act, 45 U.S.C. §§ 51 et seq. Mr. Lewis alleges

that his injuries were caused by Illinois Central’s negligence.

This matter comes before the Court on Illinois Central’s

motions to bar two of Mr. Lewis’s experts from testifying at trial;

Mr. Lewis’s motions to bar the affidavit of a non-testifying expert

and to compel an inspection of four of Illinois Central’s railyards;

and three motions for summary judgment filed by Illinois Central.

For the reasons that follow, Illinois Central’s motions are DENIED

and Mr. Lewis’s motions are GRANTED.

I. BACKGROUND

A. Facts

The Court draws these facts from the parties’ statements of

undisputed facts and the evidence they submitted. The Court

deems admitted those facts not in dispute or disputed without an

evidentiary basis. See L.R. 7.1(D)(2)(b)(2).

Plaintiff Brent Lewis is a retired railroad worker. Defendant

Illinois Central Railroad Company is an interstate rail carrier and,

since 1998, a subsidiary of Canadian National Railway. Mr. Lewis

joined Illinois Central in 1976. He worked variously as a trainman,

a brakeman, and a flagman. In 1987, Mr. Lewis left Illinois

Central’s employment for a series of sales and office jobs.

Mr. Lewis resumed his railroad work in 2003 as a conductor

for Norfolk Southern. Among other duties, Mr. Lewis was required

to ride on the sides of railcars, jump on and off moving trains, and

walk on variably sized ballast.1

In 2008, Mr. Lewis returned to Illinois Central. The Railroad

assigned Mr. Lewis to its Champaign, Decatur, Effingham, and

Mattoon railyards. Although Mr. Lewis was hired as a “conductor,”

his work for Illinois Central, much like his work for Norfolk

Southern, involved an assortment of roles and tasks. See generally

B. Lewis Dep., d/e 24-1, at 31:8–16 (“Q: . . . the different jobs you

worked were many and varied, correct? A: Absolutely. Q: Okay.

And that would include yard work, roadwork, switching work,

whatever—whatever was there? A: Yes, sir.”). Among other duties,

Mr. Lewis switched boxcars, walked in railyards and along railroad

tracks, climbed on and off railcars, threw switches, and

disassembled and assembled trains. The physical demands of Mr.

Lewis’s work varied accordingly. As a conductor, he might walk

“very little.” Id. at 67:18–20. But when Mr. Lewis worked as a road

1 Ballast “is the gravel or crushed rock that is used to construct one

or more layers above the subgrade to support the railroad track or

provide drainage.” Kelly v. Illinois Cent. R.R. Co., No. 08-cv-1052,

2010 WL 271959, at *5 (C.D. Ill. Jan. 12, 2010), on reconsideration

in part sub nom. Kelly v. Illinois Cent. R.R. Co., No. 08-cv-1052, 2010

WL 11552954 (C.D. Ill. Feb. 8, 2010).

switcher or a brakeman, he could walk five miles or more during a

single shift.

In 2004, around a year into his tenure with Norfolk Southern,

Mr. Lewis began experiencing pain “on and off” in both of his heels.

Nearly a decade passed before Mr. Lewis sought medical treatment.

In March 2014, after Mr. Lewis complained of continuous pain in

his left foot, his primary care physician referred him to Dr. Sarah

Spizzirri, a podiatric surgeon. After examining Mr. Lewis, Dr.

Spizzirri diagnosed him with plantar fasciitis and “sharp foot pain”

in both feet, noting that the latter was “worse with increased

activities and activity after rest.” See Def.’s Mot. ex. L, d/e 28-14,

at 11 (“Weaver Report”). Dr. Spizzirri later completed an FMLA

leave form on Mr. Lewis’s behalf, certifying that Mr. Lewis’s

condition required occasional medical leave between March 2014

and March 2015. Dr. Spizzirri provided a second certification of Mr.

Lewis’s medical-leave status in February 2016.

Mr. Lewis returned to Dr. Spizzirri for annual plantar fasciitis

examinations in February 2015, February 2016, and February

2017. Each time, Dr. Spizzirri largely attended to Mr. Lewis’s left

foot, which had by 2017 developed a heel spur. Each time, Mr.

Lewis reported that his railroad work required him to walk on

uneven surfaces and that walking on uneven surfaces increased his

level of pain in both feet. And each time, Mr. Lewis denied any

swelling, burning, or tingling in either foot.

Mr. Lewis worked his final shift for Illinois Central sometime

around December 15, 2017.2 Mr. Lewis later estimated that he

“had to walk five or six miles that night,” though he recalled nothing

else out of the ordinary about his shift. B. Lewis Dep., d/e 24-1, at

73:4–5. When Mr. Lewis awoke the next morning, however, his

right foot felt as if it were “on fire,” leaving him “barely [able to] get

out of bed.” Id. at 72:14–17; see also id. at 107:19–22 (“A: I had

never felt any pain in my foot – feet, like that, ever. It was a

burning sensation, like my foot was on fire. It was tender. I

couldn’t walk. It was -- it was numb.”).

Dr. Spizzirri examined Mr. Lewis three days later. Mr. Lewis

reported experiencing acute pain and a continuous burning

2 The record is unclear on the date of Mr. Lewis’s last shift.

Nonetheless, the parties seem not to dispute that Mr. Lewis suffered

and discovered at least two of his alleged injuries—right-foot tarsal

tunnel syndrome and right gastrocnemius equinus—within the

applicable statute of limitations.

sensation in his right heel. Dr. Spizzirri ordered an MRI and

subsequently diagnosed Mr. Lewis with right-foot tarsal tunnel

syndrome, gastrocnemius equinus, and a plantar fascial injury.

Mr. Lewis underwent surgery the following March. Dr. Spizzirri

repaired a tear in Mr. Lewis’s right plantar fascia, released his

entrapped right tarsal tunnel, and performed a right gastrocnemius

muscle recession. Mr. Lewis has not since returned to work.

B. Procedural History

On December 15, 2020, Mr. Lewis brought this suit pursuant

to 45 U.S.C. §§ 51 et seq. Compl., d/e 1. Mr. Lewis alleges that his

injuries were caused by Illinois Central’s failure to exercise ordinary

care “with regard to the tracks, ballast[,] and walking and working

conditions Plaintiff was required to work at and with Defendant.”

Id. ¶ 7. He seeks to recover lost wages, medical expenses, and for

physical and emotional pain and suffering.

II. JURISDICTION AND VENUE

Mr. Lewis brought this action pursuant to the Federal

Employers’ Liability Act (FELA), 45 U.S.C. §§ 51 et seq. This Court,

therefore, has federal-question jurisdiction over his claims. See 28

U.S.C. § 1331 (“The district courts shall have original jurisdiction of

all civil actions arising under the Constitution, laws, or treaties of

the United States.”). The Court also has jurisdiction pursuant to 28

U.S.C. § 1337(a) because Mr. Lewis’s claims arise under an act of

Congress regulating commerce. Venue is proper because “a

substantial part of the events or omissions giving rise” to Mr.

Lewis’s claims occurred in this District. 28 U.S.C. § 1391(b).

III. LEGAL STANDARD

Summary judgment is proper if the movant shows that no

genuine dispute exists as to any material fact and that the movant

is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).

The movant bears the initial responsibility of informing the Court of

the basis for the motion and identifying the evidence the movant

believes demonstrates the lack of any genuine dispute of material

fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A genuine

dispute of material fact exists if a reasonable trier of fact could find

for the nonmoving party. Carroll v. Lynch, 698 F.3d 561, 564 (7th

Cir. 2012). At summary judgment, the Court construes all facts in

the light most favorable to the non-moving party and draws all

reasonable inferences in that party’s favor. Woodruff v. Mason, 542

F.3d 545, 550 (7th Cir. 2008).

IV. DISCUSSION

At issue is a single claim brought under the Federal Employers

Liability Act (FELA), which “affords redress to injured employees of

railroad companies that are engaged in interstate commerce.”

Sweatt v. Union Pac. R. Co., 796 F.3d 701, 707 (7th Cir. 2015)

(citing 45 U.S.C. §§ 51 et seq.). “Cognizant of the physical dangers

of railroading that resulted in the death or maiming of thousands of

workers every year,” Congress devised the FELA as “a federal

remedy that shifted part of the human overhead of doing business

from employees to their employers.” Consol. Rail Corp. v. Gottshall,

512 U.S. 532, 542 (1994). The FELA does not impose strict liability

on employers or establish a federal system of workers’

compensation. Rather, the FELA “requires a plaintiff to prove all

the elements of a [common-law] negligence claim against his

employer . . . judged according to a relaxed standard of causation

whereby a plaintiff must prove only that the employer's negligence

played any part, even the slightest, in producing the injury or death

for which damages are sought.” Brown v. Burlington N. Santa Fe

Ry. Co., 765 F.3d 765, 771 (7th Cir. 2014) (cleaned up).

Illinois Central concurrently moves for partial and full

summary judgment. To survive, Mr. Lewis “must demonstrate that

a question of fact exists concerning whether [his] employer’s

negligence played a part, however slight, in [his] injuries.”

Strickland v. Norfolk S. Ry. Co., 692 F.3d 1151, 1157 (11th Cir.

2012) (citing Rogers v. Missouri Pac. R.R. Co., 352 U.S. 500, 505–

07 (1957)). This Court “must submit an [FELA] case to the jury

when there is even slight evidence of negligence.” Harbin v.

Burlington N. R.R. Co., 921 F.2d 129, 131 (7th Cir. 1990).

The Railroad also seeks to bar the opinions offered by Mr.

Lewis’s treating physician and his ergonomics expert. In turn, Mr.

Lewis moves to exclude an affidavit submitted by the author of a

study cited by Mr. Lewis’s ergonomics expert. Mr. Lewis further

moves to compel an inspection and collection of ballast samples in

the four railyards in which he worked.

A. Illinois Central’s Motion to Bar the Expert Testimony of Dr.

Tyler Kress is Denied.

The Court begins with the parties’ evidentiary motions. Illinois

Central first moves to bar the expert testimony of Dr. Tyler Kress,

Mr. Lewis’s ergonomics expert. See Def.’s Mot., d/e 28. Dr. Kress

holds a Ph.D. in industrial engineering from the University of

Tennessee and previously directed that university’s Engineering

Institute for Trauma and Injury Prevention. See Pl.’s Resp. ex. 2,

d/e 35-3, at 1–2. He is expected to opine that Illinois Central’s

failure to provide reasonably safe working conditions caused Mr.

Lewis’s injuries. Def.’s Mot. ex. A, d/e 28-3, at 2. Specifically, Dr.

Kress is expected to testify that “[c]limbing and walking on larger

ballast,” among other contributing factors, “imparted stresses to

Mr. Lewis’ body which understandably contributed to wear-and-tear

and injury to his musculoskeletal system.” Def.’s Mot. ex. B, d/e

28-4, at 7 (“Kress Report”). Relying on its own expert’s competing

opinions, Illinois Central argues that Dr. Kress’s testimony is

methodologically unsound. The Court disagrees.

A motion to exclude expert testimony “is governed by Federal

Rules of Evidence 702 and 703, as construed by the Supreme Court

in Daubert.” Brown, 765 F.3d at 771 (citing Daubert v. Merrell Dow

Pharms., Inc., 509 U.S. 579 (1993)). Daubert and Rule 702 require

that expert testimony be both “reliable” and “relevant.” Timm v.

Goodyear Dunlop Tires N. Am., Ltd., 932 F.3d 986, 993 (7th Cir.

2019). In deciding whether to admit or exclude expert testimony,

this Court must examine (1) whether the witness is qualified as an

expert, (2) whether the expert's methodology is scientifically reliable,

and (3) whether the testimony will assist the trier of fact to

understand the evidence or to determine a fact in issue. Myers v.

Illinois Cent. R.R. Co., 629 F.3d 639, 644 (7th Cir. 2010). The party

introducing expert testimony must establish the admissibility of

each opinion by a preponderance of the evidence. See Varlen Corp.

v. Liberty Mut. Ins. Co., 924 F.3d 456, 459 (7th Cir. 2019).

Illinois Central does not challenge Dr. Kress’s qualifications.

Rather, Illinois Central challenges the methodological

underpinnings of Dr. Kress’s opinions. The Railroad contends that

he reached his conclusions without “cit[ing] any factual or scientific

support for his opinions that is relevant to the workplaces at issue

here.” Def.’s Mot., d/e 28-2, at 23. The Railroad further contends

that Dr. Kress “has done nothing to compare any quantifiable facts

regarding Plaintiff’s workplaces” to those examined in the studies

relied upon in his report. Id. In sum, Illinois Central argues,

Kress does not know the requisite details of

Plaintiff’s work conditions to allow him to give

his opinions to the jury. He has not provided

any record of any measurements or

quantification of the purported risk factors in

Plaintiff’s work sites. Kress did not cite or

testify as to the duration or frequency of the

Plaintiff’s work tasks which are criticized in his

report—he admitted he has never talked to

Plaintiff, and thus could not have asked about

these details. He has not cited or testified as to

any calculations or replicable analyses, which

necessarily precludes any other expert from

testing his conclusions. Kress has not provided

evidence of any dose-response relationship

regarding a safe or unsafe level of “ergonomic

risks.” He has not provided data on the forces

necessary to cause the alleged injuries (general

causation). He has not executed his

methodology consistent with the methodologies

approved in his field. Despite this lack of any

factual foundation or scientific method, Kress

has opined that there were risk factors present

in Plaintiff's work that are consistent with the

alleged injuries.

Id. d/e 113-5, at 76:16–77:6.

Mr. Lewis disputes this characterization of Dr. Kress’s

expected testimony. He contends that Dr. Kress’s inability to cite or

conduct an “epidemiological study establishing quantified dose-

response relationships for the specific activities Plaintiff performed”

cannot provide grounds for excluding his testimony. Pl.’s Resp.,

d/e 35-1, at 14. According to Mr. Lewis, Dr. Kress “relied in part on

an extensive body of literature . . . regarding the kind of workplace

[risk] factors to which Plaintiff was exposed during his employment

with Defendant,” including studies and publications addressing

“the risks of musculoskeletal disorders and cumulative trauma to

the right foot-lower extremity associated with the railroad working

environment.” Id. at 12. Indeed, Mr. Lewis argues that Dr. Kress’s

review was considerably more comprehensive than Illinois Central

argues it was:

Dr. Kress reviewed Plaintiff’s deposition

testimony to obtain information regarding the

daily work tasks Plaintiff performed and the

work environment he was subjected to on a

daily basis over his railroad career. He has

obtained characterizations of these tasks and

the frequency with which conductors perform

these tasks from speaking with other employees

of the Defendant in several other cases. He

reviewed the IC work and safety rules. He has

personally seen and observed these tasks being

performed. He has personally climbed on and

off of cars and has thrown switches during

inspections on railroad property. He has data

associated with switches, handbrakes and air

hoses he has measured in the past and has

seen documented in the literature. It is

undisputed he does not have measurements of

forces for the specific equipment Plaintiff put

his hands on and worked with on IC’s property

but given these bases of information, Dr. Kress’

knowledge of the details of Plaintiff’s work is

not, as Defendant would have this Court

believe, based simply on his own “speculation.”

Id. at 16.

“An expert's opinion must be reasoned and founded on data.”

Bielskis v. Louisville Ladder, Inc., 663 F.3d 887, 894 (7th Cir.

2011). An expert’s opinion “must also utilize the methods of the

relevant discipline.” Id. But in conducting a Daubert inquiry, this

Court does not “take the place of the jury to decide ultimate issues

of credibility and accuracy.” Lapsley v. Xtek, Inc., 689 F.3d 802,

805 (7th Cir. 2012). This means that expert testimony “based on a

valid and properly applied methodology” is admissible “even if the

expert reaches a conclusion that is subject to doubt.” In re Zimmer

Nexgen Knee Implant Prod. Liab. Litig., 218 F. Supp. 3d 700, 713

(N.D. Ill. 2016), aff'd sub nom. in re Zimmer, NexGen Knee Implant

Prod. Liab. Litig., 884 F.3d 746 (7th Cir. 2018).

None of the grounds offered by Illinois Central warrant

excluding Dr. Kress’s testimony. Little in the record distinguishes

the methodology used by Dr. Kress from that employed by Illinois

Central’s expert, Brian Weaver. In his report, Mr. Weaver observed

that a biomechanics and ergonomics expert should “rely on medical

records to obtain information regarding clinical diagnoses . . . [and]

on engineering and physics training to understand the mechanics

of the specific event that created the injuries.” Weaver Report, d/e

28-14, at 10. Dr. Kress satisfied those requirements. See Kress

Report, d/e 28-4, at 3–6 (citing, among other sources, medical

records, ergonomics standards, and engineering training and

experience).

The Railroad also contends that Dr. Kress faltered in not

conducting his own dose-response study or providing “a peer

reviewed scientific article that links Mr. Lewis’ activities with the IC

and his diagnosed conditions.” See Weaver Report, d/e 28-14, at

18. But in “cumulative injury cases, such as this, where injuries

manifest themselves over many years of employment, it would be

almost impossible for a plaintiff to ever produce expert testimony

based on conducting the kind of strict, case-specific quantitative

analysis demanded by Defendant.” Kelly v. Illinois Cent. R.R. Co.,

No. 08-1052, 2010 WL 11552954, at *6 (C.D. Ill. Feb. 8, 2010)

(Mihm, J.) (declining to reconsider denial of Illinois Central’s motion

to exclude Dr. Kress’s testimony). Accepting this argument would

require the Court to exclude Mr. Weaver’s testimony as equally

methodologically unsound. See Pl.’s Resp., d/e 35-1, at 12 n.4.

Simply put, “it makes little sense to require a plaintiff to establish a

dose/response relationship or threshold level in a situation where

there has been no scientific study conducted specifically on railroad

brakemen and where the dose/response relationship or threshold

level will always vary from individual to individual.” Hardyman v.

Norfolk & Western Ry. Co., 243 F.3d 255, 265 (6th Cir. 2001).

Lastly, Illinois Central directs the Court’s attention to other

courts’ decisions to exclude Dr. Kress’s expert testimony. Faced

with the same argument in another cumulative-injury suit involving

Illinois Central, Judge Mihm aptly noted:

[It is not persuasive] that another judge

considering a motion attacking Kress’ testimony

in another case against the same Defendant

reached a different result. Judge McCuskey

reached his decision based on consideration of

the facts and evidence in his case, and this

Court did the same based on the facts and

evidence in this case. As the Court has

previously stated, each case must be resolved

on its own facts, and as a result, it would be

inappropriate to impose the kind of blanket ban

on Kress’ testimony sought in this case. The

Court does not believe that Daubert's

requirements were intended to be applied in

such an inflexible manner under the

circumstances.

Kelly, 2010 WL 11552954, at *5. This Court agrees.

In the end, the Railroad’s quarrel appears to lie with the

substance of Dr. Kress’s opinions. The proper method of contesting

those opinions is “to cross-examine vigorously, to present contrary

evidence, and to give careful instructions on the burden of proof.”

Cooper v. Carl A. Nelson & Co., 211 F.3d 1008, 1021 (7th Cir.

2000). Illinois Central’s motion to exclude is denied.

B. Mr. Lewis’s Motion to Bar the Affidavit of William Barbre is

Granted.

Dr. Kress cites a 1992 study conducted by Burlington

Northern, one of the Railroad’s competitors. The study compared

the “body forces for getting on and off moving rail equipment” to

“those created by ladder-transmitted impact . . . as experienced

during abrupt stops and other movement situations.” Def.’s Resp.

ex. 2, d/e 34-1, at 36. Illinois Central seeks to impeach Dr. Kress’s

use of the study with an affidavit from William Barbre, the study’s

author. See Barbre Aff., Def.’s Resp. ex. 1, d/e 34-1. In sum, the

affidavit attests that Dr. Kress’s interpretation of Mr. Barbre’s study

is wrong. Illinois Central did not disclose Mr. Barbre as an expert.

Mr. Lewis now moves to exclude the affidavit, characterizing it

as undisclosed expert testimony and arguing that its admission

would be highly prejudicial. Pl.’s Mot., d/e 31, at 1–2. Illinois

Central responds—without citation or substantiation—that there

“are no opinions in Barbre’s affidavit, only facts,” and that his

affidavit “does not apply any scientific methodology.” Def.’s Resp.,

d/e 34, at 5; but see Barbre Aff., d/e 34-1, at 2 (attesting that Dr.

Kress’s citation was “improper and not scientifically reliable”).

“Often evidence inadmissible for some other purpose may be

admissible as impeachment evidence.” Bryan v. John Bean Div. of

FMC Corp., 566 F.2d 541, 546 (5th Cir. 1978). At the same time,

however, “impeachment should not be used ‘as a mere subterfuge

to get before the jury evidence not otherwise admissible.’” Taylor v.

Nat'l R.R. Passenger Corp., 920 F.2d 1372, 1376 (7th Cir. 1990)

(quoting United States v. Webster, 734 F.2d 1191, 1192 (7th Cir.

1984)). The Court can find no authority suggesting that the

affidavit of an undisclosed, non-testifying expert can be used to

impeach an opinion offered by an opposing expert. On the

contrary, “to admit the hearsay opinion of an expert not subject to

cross-examination goes against the natural reticence of courts to

permit expert opinion unless the expert has been qualified before

the jury to render an opinion.” Id. Mr. Lewis’s motion is granted.

C. Illinois Central’s Motion to Bar the Medical Causation

Opinions of Dr. Sarah Spizzirri is Denied.

Illinois Central next moves to bar any expert testimony from

Dr. Sarah Spizzirri, Mr. Lewis’s treating podiatrist. See Def.’s Mot.,

d/e 30. Dr. Spizzirri is expected to testify that “the repetitive

motions of activity on uneven surfaces, stairs, ladders, climbing”

served as a “causative agent for [Mr. Lewis’s] tarsal tunnel

syndrome.” S. Spizzirri Dep., Def.’s Mot. ex. B, d/e 30-4, at 12:22–

13:8. The Railroad says that Dr. Spizzirri’s specific-causation

opinions—the only such opinions offered by Mr. Lewis—do not pass

muster under Federal Rule of Evidence 702 or Daubert. Again, the

Court concludes otherwise.

A treating physician is “not distinguish[ed] . . . from other

experts when the treating physician is offering expert testimony

regarding causation.” O’Conner v. Commonwealth Edison Co., 13

F.3d 1090, 1105 n.14 (7th Cir. 1994) (citation omitted). This Court

must examine (1) whether Dr. Spizzirri is qualified as an expert, (2)

whether her methodology is scientifically reliable, and (3) whether

her testimony will assist the trier of fact. Myers, 629 F.3d at 644.

Dr. Spizzirri is a board-certified podiatric surgeon. Dr.

Spizzirri also served as Mr. Lewis’s primary treating podiatrist

throughout the relevant period. As with Dr. Kress, Illinois Central

does not contest the adequacy of those credentials. Illinois Central

instead challenges the reliability of Dr. Spizzirri’s “data” and her

diagnostic methodology.

Illinois Central first argues that Dr. Spizzirri erred in relying

on Mr. Lewis’s self-reporting of his lifestyle and job duties and on

her own experience in treating Mr. Lewis and other podiatric

patients. This argument, however, fails to consider Dr. Spizzirri’s

role here—as a treating physician, not a retained expert. “In order

to properly treat and diagnose a patient, the doctor needs to know,

establish, or reach a conclusion regarding the cause of the patient's

injury.” McCloughan v. City of Springfield, 208 F.R.D. 236, 242

(C.D. Ill. 2002) (Mills, J.). In so doing, “[m]edical professionals

reasonably may be expected to rely on self-reported patient

histories.” Walker v. Soo Line R.R. Co., 208 F.3d 581, 586 (7th Cir.

2000) (citing Cooper, 211 F.3d at 1019–21 (7th Cir. 2000)). Here,

Dr. Spizzirri applied her expertise and her personal knowledge of

Mr. Lewis in evaluating potential causes, reaching a diagnosis, and

devising a course of treatment. As Mr. Lewis correctly argues, Dr.

Spizzirri accounted for Mr. Lewis’s “physical exam, x-rays, MRI[,]

and his known work activities on the railroad” in determining that

Mr. Lewis’s work contributed to his injuries. All this data was

permissible, reliable, and adequate.

Illinois Central also contends that Dr. Spizzirri cannot testify

to specific causation without testifying to a differential diagnosis or

etiology. Moreover, the Railroad says, Dr. Spizzirri cannot offer a

specific-causation opinion without having gone well beyond her

obligations as a treating physician. According to Illinois Central,

“[t]he doctor must still perform independent studies (including

ruling in all other potential causes based on patient-specific facts),

review research, present a methodology by which the conclusion

can be scientifically and objectively tested, and consider the level of

exposure necessary for causation.” Def.’s Reply, d/e 45, at 6.

“In deciding whether an expert employed a reliable method,”

this Court has the “discretion to consider whether ‘the expert has

adequately accounted for obvious alternative explanations.’”

Brown, 765 F.3d at 773 (quoting Fed. R. Evid. 702 committee note

(2000)). At the same time, an expert “need not testify with complete

certainty about the cause of an injury; rather he may testify that

one factor could have been a contributing factor to a given

outcome.” Gayton v. McCoy, 593 F.3d 610, 619 (7th Cir. 2010).

“Differential diagnosis,” by which a physician rules in or out a

medical condition based on the presence or absence of certain

identifying markers, “is an accepted and valid methodology for an

expert to render an opinion about the identity of a specific ailment.”

Myers, 629 F.3d at 644. “Differential etiology” involves the use of

similar methods to determine “the cause, not just the identity, of an

ailment.” Brown, 765 F.3d at 772. Both Dr. Spizzirri’s diagnosis

and her causation testimony “adequately accounted” for Mr. Lewis’s

lifestyle—including his apparent lack of physically taxing hobbies—

and his job duties in considering and disposing of “obvious

alternative explanations.” Brown, 765 F.3d at 773. In other words,

Dr. Spizzirri conducted a prototypical differential diagnosis and

etiology. See Dohse v. Norfolk S. Ry. Co., No. 2:11-CV-099 JD,

2013 WL 12318275, at *8 (N.D. Ind. Dec. 19, 2013) (“It is not

necessary for an expert to actually invoke the phrase differential

etiology in order to analyze it under that framework, so long as the

record reflects that the methodology was in fact performed.”). There

is “nothing controversial about that methodology.” Myers, 629 F.3d

at 644 (citations omitted). Moreover, Dr. Spizzirri, like Dr. Kress,

cannot be faulted for failing to perform the kind of highly technical

dose-response testing that only Illinois Central was equipped to

perform. On this record, the Court must conclude that Dr.

Spizzirri’s diagnostic methodology and, therefore, her methodology

in reaching a specific-causation opinion were sound. Illinois

Central’s motion to exclude Dr. Spizzirri’s testimony is denied.

D. Illinois Central’s Motion for Partial Summary Judgment on

the Statute of Limitations is Denied.

Illinois Central moves for partial summary judgment on Mr.

Lewis’s claim of an injured right plantar fascia. Def.’s Mot. Partial

Summ. J., d/e 21. The Railroad contends that the FELA’s repose

statute bars Mr. Lewis from recovering for plantar fasciitis, a

condition first diagnosed in March 2014. See Def.’s Mem., d/e 22,

at 1–2. Yet a reasonable jury could find that Mr. Lewis suffered a

discrete injury to his right plantar fascia no earlier than December

15, 2017. Because accepting Illinois Central’s timeline and its

characterization of the relevant injury would require this Court to

construe the record in the Railroad’s favor, Illinois Central’s motion

must be denied.

Under the FELA, “no action shall be maintained under this

[A]ct unless commenced within three (3) years from the day the

cause of action accrued.” 45 U.S.C. § 56. An FELA claim accrues

“when a reasonable person knows or in the exercise of reasonable

diligence should have known of both the injury and its governing

cause.” Green v. CSX Transp., Inc., 414 F.3d 758, 763 (7th Cir.

2005) (citing Tolston v. Nat’l R.R. Passenger Corp., 102 F.3d 863,

865 (7th Cir. 1996); Fries v. Chicago & Northwestern Transp. Co.,

909 F.2d 1092, 1095 (7th Cir. 1990)). “When the specific date of

injury cannot be determined because an injury results from

continual exposure to a harmful condition over a period of time, a

plaintiff's cause of action accrues when the injury manifests itself.”

Id. (citing Fries, 909 F.2d at 1094; Urie v. Thompson, 337 U.S. 163

(1949)).

“Accrual is defined in two parts: notice of injury and notice of

cause.” Sweatt, 796 F.3d at 707 (citation omitted). The inquiry

here, then, is twofold. The first part asks when Mr. Lewis knew—

or, with reasonable diligence, had reason to know—that he had

suffered something more than a de minimis plantar fascia injury in

his right foot. See Green, 414 F.3d at 764–65; see also Lancaster v.

Norfolk & Western Ry. Co., 773 F.2d 807, 821 (7th Cir. 1985), cert.

denied, 480 U.S. 945 (1987). The second asks when Mr. Lewis

knew or had reason to know that his injury stemmed from his work.

The record cannot sustain the Railroad’s request for partial

summary judgment on either question.

According to Illinois Central, no reasonable jury could find

that Mr. Lewis failed to discover that his right-foot plantar fasciitis

was more than de minimis until December 2017. According to Mr.

Lewis, however, the record instead “supports a finding that it was

not until after December 18, 2017[,] that Mr. Lewis’ symptoms

escalated beyond ‘inconsequential manifestations’ so as to put him

on notice that he sustained actual injuries causally related to his

railroad employment.” Pl.’s Resp., d/e 41, at 14. Before then, Mr.

Lewis argues, he “was working every day for the railroad, had no

appreciable damages (i.e.[,] wage loss), and had no reason to know

that he sustained right plantar fasciitis injuries which eventually

[required] surgical intervention.” Id. at 13.

The Court agrees with Mr. Lewis. Illinois Central’s argument

confuses the plantar fascia, the ligament connecting the foot’s front

to its heel, for plantar fasciitis, an inflammation of the tissue

surrounding that ligament. The record reflects that Mr. Lewis long

suffered from the latter but only sustained the former in December

2017. Along with the deposition testimony provided by Mr. Lewis

and Dr. Spizzirri, the record contains two FMLA leave forms in

which Dr. Spizzirri certified that Mr. Lewis was “being treated for a

right plantar fascia tear” beginning on December 18, 2017. Pl.’s

Resp. ex. 5, d/e 36-5, at 2; id. ex. 6, d/e 36-6, at 2. The record also

contains FMLA leave forms from 2014 and 2016 certifying that Mr.

Lewis suffered from bilateral “plantar fasciitis,” see id. ex. 3, d/e 36-

3, at 7, and “plantar fascial fibromatosis,” see id. at 2. Construing

that record and drawing all reasonable inferences in Mr. Lewis’s

favor, a jury readily could conclude that Mr. Lewis did not merely

exacerbate his preexisting plantar fasciitis but tore his plantar

fascia, and that he did so within the statute of limitations.

Consider the following example. An office worker suffers from

a decade-old bulging disc. The condition may or may not be related

to his work—which primarily involves sitting—but regardless of the

cause, the condition is generally manageable. One day, the office

worker’s desk chair collapses under him, fracturing his bulging disc

in the process. His attempt to recover for an acute injury would not

be time-barred just because he knew of an underlying, arguably de

minimis, and ultimately distinct chronic condition. See generally

Fonseca v. Consol. Rail Corp., 246 F.3d 585, 590 (6th Cir. 2001)

(“For Fonseca's claim to survive the FELA statute of limitations, he

must establish that the frequent but temporary pain he experienced

for 27 years was distinct from the cumulative injury that resulted in

continuous discomfort thereafter.”). With the record construed in

his favor, Mr. Lewis’s claim is functionally no different.

To be sure, a plaintiff “cannot wait until he receives a medical

diagnosis to begin pursuit of his claim.” Sweatt, 796 F.3d at 708

(citing Fries, 909 F.2d at 1095). Yet “intermittent pain associated

with a minor injury” is, by the same token, “insufficient to trigger

accrual of a claim under the FELA.” Sweatt, 796 F.3d at 708 (citing

Green, 414 F.3d at 764)). At the very least, Mr. Lewis’s allegations

here fall somewhere between those ends of the cause-accrual

spectrum. He is ”entitled to have a jury decide whether and when a

reasonable person in his circumstances would have realized that he

had suffered more than a de minimis cumulative injury [to his right

plantar fascia] and that the injury was work-related.” Green, 414

F.3d at 764–65.

E. Illinois Central’s Motion for Summary Judgment on

Causation is Denied.

Next, Illinois Central moves for summary judgment on the

question of causation. Def.’s Mot. Summ. J., d/e 23. Illinois

Central argues that summary judgment is warranted because Mr.

Lewis “has not produced an admissible expert opinion establishing

specific medical causation, which is required to sustain an FELA

claim.” See Def.’s Mem., d/e 24, at 1. Put differently, Illinois

Central argues that summary judgment in its favor necessarily

follows from a ruling that Dr. Spizzirri’s specific-causation

testimony is inadmissible. The Court, however, has found Dr.

Spizzirri’s testimony admissible.

The FELA “imposes on railroads a general duty to provide a

safe workplace.” McGinn v. Burlington N. R.R. Co., 102 F.3d 295,

300 (7th Cir. 1996). In keeping with the act’s “broad remedial”

purpose, see Atchison, Topeka & Santa Fe. Ry. Co. v. Buell, 480

U.S. 557, 461 (1987), the burden of proof in a FELA negligence case

is lower than the burden imposed in an action for common-law

negligence. See Lisek v. Norfolk & W. Ry. Co., 80 F.3d 823, 832

(7th Cir. 1994). “The railroad is liable if the proofs justify with

reason the conclusion that employer negligence played any part,

even the slightest, in producing the injury.” Id. (quoting Harbin v.

Burlington N. R.R. Co., 921 F.2d 129, 131 (7th Cir. 1990)) (cleaned

up); see also CSX Transp., Inc. v. McBride, 564 U.S. 685, 688

(2011) (“[A] defendant railroad caused or contributed to a plaintiff

employee's injury if the railroad's negligence played any part in

bringing about the injury.”). Therefore, to survive summary

judgment, an FELA plaintiff must provide “more than a scintilla of

evidence” of the railroad’s negligence, “but not much more.”

Aparicio v. Norfolk & Western Ry. Co., 84 F.3d 803, 810 (6th Cir.

1996), abrogated in part on other grounds by Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 149–50 (2000).

Illinois Central correctly states the applicable law. As the

Seventh Circuit has recognized, cumulative injuries can be caused

by “myriad . . . factors, none of which is obvious or certain.” Myers,

629 F.3d at 643. “Thus, to tie [his injuries] to his working

conditions at the Railroad, [Mr. Lewis] needs expert testimony.” Id.

And “federal case law is clear that summary judgment must be

entered when the evidence of specific medical causation is

inadmissible.” Def.’s Mem., d/e 24, at 14 (citing, e.g., Meyers v.

Nat’l R.R. Passenger Corp. (Amtrak), 619 F.3d 729, 735 (7th Cir.

2010)). But the inverse is true here: Mr. Lewis can offer admissible

expert evidence of specific causation. That is enough for Mr.

Lewis’s claims to survive summary judgment. Illinois Central’s

motion for summary judgment on causation is denied.

F. Illinois Central’s Motion for Partial Summary Judgment on

Ballast is Denied.

This leaves Illinois Central’s third and final summary

judgment motion, which concerns the role played by ballast in the

underlying events. As the parties agree, ballast refers to rocks of

varying size “used as the roadbed to keep the railroad ties and rails

in place and for draining.” Pl.’s Resp., d/e 39-1, at ¶ 4. Mr. Lewis

alleges that his injuries stem in part from “walking on uneven

terrain and road ballast” in Illinois Central’s railyards. Compl., d/e

1, at ¶ 5. He also alleges that the Railroad “failed to maintain

and/or adequately maintain the tracks, ballast, walkways[,] and

walking and working conditions . . . in a reasonably safe condition.”

Id. ¶ 8. Illinois Central offers several reasons why it is entitled to

summary judgment on Mr. Lewis’s “ballast-related negligence

claims.” See Def.’s Mot. Summ. J., d/e 25, at 1–2.

Illinois Central’s primary contention is that any negligence

claim related to ballast is necessarily precluded by the Federal

Railroad Safety Act (FRSA), 49 U.S.C. §§ 20101 et seq. In the

Railroad’s telling, “FRSA ballast regulations ‘cover the subject

matter’ of ballast and ballast size and displace any federal common-

law standards or other federal agency safety rules that purport to

cover the same subject matter,” and in so doing preclude “the

ballast-related negligence claims in Plaintiff’s Complaint.” Def.’s

Mem., d/e 26-2, at 1–2. This argument has been considered and

rejected by courts in this Circuit and across the country. See, e.g.,

Quiroz v. CSX Transp., No. 2:20-CV-69, 2022 WL 4594070, at *2–3

(N.D. Ind. Aug. 24, 2022); Jones v. BNSF Ry. Co., 306 F. Supp. 3d

1060 (C.D. Ill. 2017); Lombardy v. Norfolk Southern Ry. Co., 2014

WL 2468612, at *1 (N.D. Ind. June 3, 2014); Grogg v. CSX Transp.,

Inc., 659 F. Supp. 2d 998 (N.D. Ind. Sept. 14, 2009); Wilcox v. CSX

Trans., Inc., 2007 WL 1576708, at *1 (N.D. Ind. May 30, 2007);

Grimes v. Norfolk Southern Ry. Co., 116 F. Supp. 2d 995 (N.D. Ind.

Sept. 18, 2000). This Court now joins them.

Congress devised the FRSA to “promote safety in every area of

railroad operations and reduce railroad-related accidents and

incidents.” 49 U.S.C. § 20101. Under the FRSA, “[l]aws,

regulations, and orders related to railroad safety” must be

“nationally uniform to the extent practicable.” Id. § 20106(a)(1).

Illinois Central contends that Congress’s express intention of

pursuing “national uniformity” implicitly precludes any FELA claim

that reaches a subject of an FRSA regulation. Yet Congress, as the

Supreme Court has recognized, “not infrequently permits a certain

amount of variability by authorizing a federal cause of action even

in areas of law where national uniformity is important.” POM

Wonderful LLC v. Coca-Cola Co., 573 U.S. 102, 117 (2014)

(citations omitted). It hardly can be said that the FELA—which

regulates railroad safety ex post through a private cause of action—

and the FRSA—which regulates railroad safety ex ante through

agency rulemaking—are anything but complementary. See, e.g.,

Madden v. Anton Antonov & AV Transp., Inc., 156 F. Supp. 3d

1011, 1019–21 (D. Neb. 2015); Infermo v. New Jersey Transit Rail

Operations, Inc., No. 10–2498, 2012 WL 209359, at *6 (D.N.J. Jan.

24, 2012) (“[T]he language of FRSA itself gives no indication that the

express preemption clause crafted to address potentially varying

and disparate state laws concerning standards for the operation

and maintenance of the national rail system should, by implication,

extend to subsume matters governed by FELA, which is concerned

primarily with providing injured railroad employees a deliberately

attainable remedy.”); cf. Sprietsma v. Mercury Marine, 537 U.S. 51,

56, 70 (2002) (holding that the Federal Boat Safety Act's “policy of

encouraging uniformity of boating laws insofar as practicable” did

not “justify the displacement of . . . common-law remedies that

compensate accident victims and their families and that serve the

Act's more prominent objective, emphasized by its title, of

promoting boating safety”).

This Court “will not act where Congress has not.” Madden,

156 F. Supp. 3d at 1021. “When two statutes complement each

other,” and when Congress has not spoken to either statute’s

preclusive or preemptive effect, “it would show disregard for the

congressional design to hold that Congress nonetheless intended

one federal statute to preclude the operation of the other.” POM

Wonderful, 573 U.S. at 115. That is why “the courts in this district

have been abundantly clear that FELA negligence claims involving

ballasts are not preempted by the FRSA.” Quiroz, 2022 WL

4594070, at *3 (collecting cases). The Court declines Illinois

Central’s invitation to hold otherwise.

Next, Illinois Central argues that it is entitled to summary

judgment on Mr. Lewis’s claim that the Railroad violated “49 C.F.R.

§ 213 or any other federal regulation regarding ballast.” See Def.’s

Reply, d/e 49-2, at 2. In relevant part, 49 C.F.R. § 213.103

provides:

§ 213.103 Ballast; general.

Unless it is otherwise structurally supported, all

track shall be supported by a material which

will—

(a) Transmit and distribute the load of the track

and railroad rolling equipment to the

subgrade;

(b) Restrain the track laterally, longitudinally,

and vertically under dynamic loads imposed

by railroad rolling equipment and thermal

stress exerted by the rails;

(c) Provide adequate drainage for the track; and

(d) Maintain proper track crosslevel, surface,

and alignment.

49 C.F.R. § 213.103 (2022). Illinois Central contends that Mr.

Lewis “has provided no admissible evidence” that the Railroad

deviated from this federal standard or any other. Def.’s Mem., d/e

26-2, at 5. However, this argument elides the existence and

admission of Dr. Kress’s contrary expert testimony, which suffices

to create a genuine dispute of material fact under the FELA. See

Pl.’s Resp., d/e 39-1, at 23; see generally Harbin, 921 F.2d at 131

(court “must submit an [FELA] case to the jury when there is even

slight evidence of negligence”). Illinois Central’s motion for partial

summary judgment is denied.

G. Mr. Lewis’s Motion for Inspection is Granted.

The last of the parties’ pending motions is Mr. Lewis’s motion

for inspection. Pl.’s Mot., d/e 32. During the expert deposition of

Brian Weaver, Illinois Central’s ergonomics expert, Mr. Lewis’s

attorney asked Illinois Central’s counsel to allow him to inspect the

four railyards at issue and collect small samples of the ballast used

there. Illinois Central’s counsel advised that the parties could

discuss the question afterward. During a telephone conference held

on August 15, 2022—the parties’ last day to conduct discovery—

Illinois Central’s counsel orally denied that request.

Mr. Lewis now moves the Court to order Illinois Central to

allow the inspection. Illinois Central opposes the motion, arguing

that Mr. Lewis failed to make his request in writing, failed to file “a

proper Rule 37 motion to compel with the required certifications,”

and in any event seeks evidence that “Plaintiff’s own expert deemed

. . . irrelevant.” Def.’s Resp., d/e 33, at 3, 8–9.

Under Federal Rule of Civil Procedure 34(a)(2), a party may

request that another party “permit entry onto designated land or

other property possessed or controlled by the responding party, so

that the requesting party may inspect, measure, survey,

photograph, test, or sample the property or any designated object or

operation on it.” Fed. R. Civ. P. 34(a)(2). A Rule 34(a)(2) request is

subject to the limitations of Rule 26, which requires that the Court

limit discovery when “the burden or expense of the proposed

discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(2)(C).

“District courts have broad discretion” in making such a

determination. Patterson v. Avery Dennison Corp., 281 F.3d 676,

681 (7th Cir. 2002) (citing Packman v. Chicago Trib. Co., 267 F.3d

628, 646–47 (7th Cir. 2001)). The Court enjoys equally broad

discretion “to deny a discovery motion filed after the discovery

deadline in the case has passed, especially where the moving party

has failed to establish good cause for the late filing.” Assaf v. OSF

Healthcare Sys., No. 4:11-CV-04108, 2014 WL 3865891, at *1 (C.D.

Ill. Aug. 6, 2014) (citations omitted).

The Court finds that Illinois Central lacked good cause to deny

Mr. Lewis’s request. The actual size and scale of the ballast at

issue plainly are relevant to Mr. Lewis’s claims. And allowing Mr.

Lewis to photograph and collect samples of rock imposes on Illinois

Central only a minimal “burden or expense.” See Fed. R. Civ. P.

26(b)(2)(C). Moreover, Illinois Central met Mr. Lewis’s informal

discovery request with equal informality. If the Railroad “had

objections to the informality of the requests, it should have voiced

those concerns immediately and insisted on formal requests. But it

did not, so the [C]ourt deems [Illinois Central’s] objection to the

form of the requests to be waived.” Boehm v. Scheels All Sports,

Inc., No. 15-CV-379-JDP, 2016 WL 6811559, at *2 (W.D. Wis. Nov.

17, 2016). Mr. Lewis’s motion for inspection is granted.

V. CONCLUSION

For these reasons, Defendant’s Motion for Partial Summary

Judgment on Statute of Limitations (d/e 21), Motion for Summary

Judgment on Causation (d/e 23), Motion for Partial Summary

Judgment on Ballast (d/e 25), Motion to Bar Expert Testimony of

Tyler Kress (d/e 27), and Motion to Bar Expert Testimony of Sarah

Spizzirri (d/e 29) are DENIED. Plaintiff’s Motion to Bar the Affidavit

of William Barbre (d/e 31) and Motion for Inspection (d/e 32) are

GRANTED.

IT IS FURTHER ORDERED THAT:

1. A status conference is hereby SET for September 7, 2023,

at 2:30 p.m. Counsel for both parties shall participate by

videoconference, the instructions for which are attached.

Counsel should be prepared to (1) discuss the terms of

Mr. Lewis’s inspection and (2) propose new trial dates.

IT IS SO ORDERED.

ENTERED: AUGUST 16, 2023

FOR THE COURT:

s/ Sue E. Myerscough

SUE E. MYERSCOUGH

UNITED STATES DISTRICT JUDGE