# Petition for Writ of Certiorari — Albert v. Southern Pacific Transportation Co.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1995
- **Citation:** 516 U.S. 812

## Text

Supreme Court, U.S.
() FILED
DB41927 MAY 24 1995
No. 94-___ QEFICE O£ THE CLERK

4

In The

Supreme Court of the United States
October Term, 1994
¢

BERTRAND E. ALBERT,

Petitioner,

SOUTHERN PACIFIC TRANSPORTATION
COMPANY, a corporation,

Respondent.

4

On Petition For Writ Of Certiorari
To The California Court Of Appeal,
Second Appellate District, Division Four

¢

PETITION FOR WRIT OF CERTIORARI
4

BRIAN R. MAGANA
Counsel of Record
DEBORAH MITZENMACHER

MAGANA, CATHCART & McCartHy
1801 Avenue of the Stars, Suite 810
Los Angeles, California 90067-5899

(310) 553-6630

Attorneys for Petitioner

May 25, 1995

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

DOES THE FEDERAL EMPLOYERS’ LIABILITY
ACT, 45 U.S.C. §§ 51-60 (1908, AS AMENDED), CON-
TAIN A “ONE FREE HEART ATTACK” EXEMPTION?

il

TABLE OF CONTENTS

Page
CHES TION PURO T I 6 <b wa eens ee ieveuenenwewens i
TAREE OF BUT fk ios cts cuvierseaveces ow iii
PETITION FOR WRIT OF CERTIORARI............ l
OPINIONS AND ORDERS BELOW .............. ]
Ps ERS cco cone bere sneer ee 2
CONSTITUTIONAL PROVISIONS AND STAT-
UTES TIC VEMREE 6 aires nae cue yceess pier Car eeneee 2
STAT EMSECE £00 40x 0c eua ti eerie eee ate 2
A. FR Be 42 44nd kee eee 2
BD. PROM CUAL, Piles een coe eesens 6
REASONS FOR GRANTING THE PETITION..... 7

I. THIS CALIFORNIA STATE COURT OPIN-
ION, AMONG OTHERS, CREATES A BASE-
LESS JUDICIAL EXEMPTION TO THE
CLEAR LANGUAGE OF THE FELA........ 8

II. THIS SOLE PUBLISHED CALIFORNIA
STATE COURT OPINION CONFLICTS WITH
OTHER FEDERAL AND STATE OPINIONS
BASED ON SIMILAR FACTS ince iccucascs 12

Il. THIS PUBLISHED CALIFORNIA STATE
COURT OPINION CAN AND SHOULD BE

SUMMARILY REVERSED PER CURIAM .... 16
COIN LENGE «0k v'b'vin bu 0'o os ee 16
APPENDIX

index to ADDORGIN «2... 6.805 0enckgeunapeeee ia

TABLE OF AUTHORITIES

Page
Cases:
Affolder v. New York, Chicago & St. Louis Railroad
eg RE a, | rn rrr ee ere 3
Atchison, Topeka & Santa Fe Railway Co. v. Buell, 480
sae LA ok we ip oak vas bad es ma 8 48 * 8
Bailey v. Central Vermont Railway Co., 319 U.S. 350
NE es eas hss SAE pa NeW COTA SAR REO SSS 8
Bailey v. Missouri Pacific Railroad Co., 383 So. 2d
397 (La. App.) cert. denied, 385 So. 2d 784 (La.),
ye A a Se. eG |) es ee 15
Bashram v. Pennsylvania Railroad Co., 372 U.S. 699
hes erie ses we ag haa pin ehh hie RAS O eb eS s 3
Consolidated Rail Corp. v. Gottshall, 512 U.S. _ L
314 S.Ct. 2496, 129 L.Ed.2d 427 (1994) ............. 8
eee ge ee. S|. : Se 16
Creamer v. Odgen Railway, 242 P.2d 575 (Utah
1952), cert. denied, 344 U.S. 912 (1953)............. 11
Davis v. Virginian Railway Co., 361 U.S. 354 (1960) ..... 3
Ferguson v. Moore-McCormack Lines, 352 U.S. 521
SEE SRA? Go i ern ee ee eae 11
Gallick v. Baltimore & Ohio Railroad Co., 372 US.
ae ai iar i ak ass e484 ks ewan ek <8 9
Grand Trunk Western Railway v. Lindsay, 232 U.S. 42
a ak calla e isha Skat ced od 0d0e sear oes 3
Harbin v. Burlington Northern Railroad Co., 921 F.2d
eR I ay ins oho pa nee ws 0's aos apes 12, 13

Hines v. Consolidated Rail Corp., 926 F.2d 262 (3d
ee ee rai cou Nod ans ab ts os ele eae hs 11

iv

TABLE OF AUTHORITIES — Continued

Page
Morrison v. Illinois Central Gulf Railroad Co., 387
eB Re et err errr re 1]
New York, New Haven & Hartford Railroad Co. v.
Cragan, 352 F.2d 463 (1st Cir. 1965), cert. denied,
eR ee ne eC Oe mmr ret eee 1]
O'Donnell v. Elgin, Joliet & Eastern Railway Co., 338
8 Ae ge.) ey PP ca eer re Seer nee 2
Owens v. Union Pacific Railroad Co., 319 U.S. 715
SPE ick 5 ees as Bae el a ea ae eR 10
Pedersen v. Delaware, Lackawanna & Western Rail-
Wy 50. ee See BO As a hc oho bv es ada 3
Pierce v. Southern Pacific Transportation Co., 823
pa ee eg See tne Fores Oe eee 14
Pitt v. Pennsylvania Railroad Co., 66 F. Supp. 443
(E.D. Pa. 1946) affirmed, 161 F.2d 733 (3d Cir.
SONS ied oi Seis kee wni te ies coi bah ee as 9, 10
Ringhiser v. Chesapeake & Ohio Railway Co., 354 U.S.
ed BOP eg Be ere OS Par EM rs perp tr Ean: 16
Robert v. Consolidated Rail Corp., 832 F.3d 3 (1st Cir.
1 / Dane Re papiemenems Dade Rarer eae oly Mina yr ec skit Ss 11
Rodriguez v. Delray Connecting Railroad, 473 F.2d
ae COM Se CO abies 8 4a n oe ew Gace hoe waa ae ee i oe 9
San Antonio & Arkansas Pass Railway Co. v. Wagner,
De Wee PW COON Sak 6 AORN eek SNe oe EEA aoe 2
Seaboard Air Line Railway v. Lorick, 243 U.S. 572
| +) Rear pan iat amen Grenr cries pe ene MORE Pe aa 3, 4

Shenker v. Baltimore & Ohio Railroad Co., 374 U.S. 1
CRS 0 5 66's bw b.0 655d eee ee ae ee 3

TABLE OF AUTHORITIES - Continued

Page
Stone v. New York, Chicago & St. Louis Railroad Co.,
SER US; Gar Sie 3 ck cena eerie Fa 7
Thompson v. Tippit, 300 S.W.2d 351 (Tex. Civ. App.
1957), cert. dismissed, 355 U.S. 943 (1958).......... 11
Tiller v. Atlantic Coast Line Railroad Co., 318 U.S. 54
CRUG 6 cic a ee ee 10
Urie v. Thompsan, 337 U.5..169 (i999) i665 oc ceccersedes 9
LL S. Bele, Sar Sek ee Ca so cas coe ees 2
Webb v. Illinvis Central Railroad Co., 352 U.S. 512
USGS irk cs cba Pe per ee CA ete taeens bee 11
Wilkerson v. McCarthy, 336 U.S. 53 (1948)............ 11
CONSTITUTIONS:

LS. Comet. AGE VG eS Ear OS eee eee 2
133. GC omee. eC a Pree o s on cS cnc ieaeeersee 2
STATUTES:

Se UTR BS 22 CE oe ao a nei sews eee eee 2
45 U.S.C. §§ 2 & 13 (1893, as amended).............. 2
OF CBA. G St Ob WR. ec kak ie ct een eens Heenan 6
45 U.S.C. § 51 (1908, as amended 1939).............. 8
45 U.S.C. §§ 51-60 (1908, as amended) ............. +
SS UG. Ce Ce oi es eee aes eee 10
45 USC. § 54 (908, as amended 1999) .. 2.26.50: 10
£5 DSL. Oe Sere 66s Bi ae hasnt rset ia 11

48 USC. & 56 (1908, amenaen 1998). x... 6 i ccecaness 8

vi

TABLE OF AUTHORITIES - Continued

40 Cong. Rec.
42 Cong. Rec.
42 Cong. Rec.
42 Cong. Rec.

Russell Baker,

Page

Lecis-aTive History:
| ER ren eertiny pe 12
RE een 12
Shes vv coon hbNR Laas eee 12
oo | Re Sel ae eet: a

OTHER AUTHORITIES:

Growing Up (Signet 1982) at 221...... 11

No. 94-___
.

In The

Supreme Court of the United States

October Term, 1994
*

BERTRAND E. ALBERT,

Petitioner,

SOUTHERN PACIFIC TRANSPORTATION
COMPANY, a corporation,

Respondent.
°

On Petition For Writ Of Certiorari
To The California Court Of Appeal,
Second Appellate District, Division Four
*

PETITION FOR WRIT OF CERTIORARI
*

Bertrand E. Albert respectfully petitions for a writ of
certiorari to review and reverse the judgment of the Cali-
fornia Court of Appeal, Second Appellate District, Divi-
sion Four.

OPINIONS AND ORDERS BELOW

The California Supreme Court Order denying review
(17a) is unreported. The California Court of Appeal Order
denying rehearing (12a) is unreported. The California
Court of Appeal, Second Appellate District, Division

Four, affirmance (la-1la) is reported at 30 Cal. App. 4th
529, 35 Cal. Rptr. 2d 777 (1994). The Los Angeles County
Superior Court Judgment (13a) and Order (14a-15a)
granting the railroad summary judgment under FELA as
against its employee are unreported.

¢

JURISDICTION

The California Supreme Court denied review on Feb-
ruary 23, 1995. Jurisdiction is invoked under 28 U.S.C.
§ 1257 (1988).

CONSTITUTIONAL PROVISIONS AND
STATUTES INVOKED

Text excerpts of U.S. Const. Art. VI, cl. 2 (1787), U.S.
Const. Amend. VII (1791), and the Federal Employers’
Liability Act, 45 U.S.C. §§ 51-60 (1908, as amended) are in
the Appendix. 18a-20a.

STATEMENT
A. FACTS

The Federal Safety Appliance Act of 1893 prohibits a
railroad from hauling a car with a defective automatic
coupler if it can be repaired where the defect is discov-
ered. U.S. v. Erie, 237 U.S. 402, 409 (1915); 45 U.S.C. §§ 2 &
13 (1893, as amended). Despite that fact, railroads often
defer required repairs for a long time. San Antonio &
Arkansas Pass Railway Co. v. Wagner, 241 U.S. 476 (1916)

(railroad history of poor maintenance practices). Then,
the railroads demand that their employees make the
required repairs on a rush basis. Davis v. Virginian Railway
Co., 361 U.S. 354, 355-356 (1960) (“Railroad employees
classified the Ford ‘switching operation’ as a ‘hot job’
because ‘you do your job a little faster than you would in
the yard.’ ”). As a result, many railroad workers have
been killed or maimed attempting to couple or repair
defective automatic couplers still in service. Grand Trunk
Western Railway v. Lindsay, 232 U.S. 42 (1914); O'Donnell v.
Elgin, Joliet & Eastern Railway Co., 338 U.S. 384 (1949);
Affolder v. New York, Chicago & St. Louis Railroad Co., 339
U.S. 96, 98 (1950).

Repairers of automatic couplers are covered under
the FELA. Pedersen v. Delaware, Lackawanna & Western
Railway Co., 229 U.S. 146 (1913); Bashram v. Pennsylvania
Railroad Co., 372 U.S. 699, 700 (1963); 45 U.S.C. §§ 51-60
(1908, as amended). A railroad’s FELA responsibilities to
its repairers are nondelegable duties. Shenker v. Baltimore
& Ohio Railroad Co., 374 U.S. 1, 7-8 (1963).

For eighty years railroads have known, as to repair-
ing automatic couplers, that: “To do so it was necessary
to raise the coupler; and for this a jack was the appropri-
ate appliance.” Seaboard Air Line Railway v. Lorick, 243 U.S.
572, 573 (1917). For eighty years railroads have known
that, absent a functional hydraulic jack, a repairer will do
the job with brute force. Lorick, supra, 243 U.S. at 573.

On March 28, 1991, Southern Pacific told its longtime
employee, 55.5-year-old Bertrand Albert and an even
older employee, Charlie Moten, to repair two extremely
worn automatic couplers on a rush basis so that a car

could be returned to interstate service in just a few hours,
between 10:30 a.m. and noon that same day. As a South-
ern Pacific manager, supervisor Jerry Cain testified that
the only proper tool for the job was a functional hydrau-
lic jack. Accord, Lorick, supra, 243 U.S. at 573.

The sole tool Mr. Albert had was a 16-pound sledge-
hammer. Starting at 9:30 a.m., as directed by Foreman
John Juarez, Mr. Albert alone performed all of the repairs
at one end of the car by 10:30 a.m., just one hour later.
Starting again at 11:30 a.m., as Foreman Juarez watched
impatiently, Mr. Albert alone performed most repairs at
the other end by 12:00 p.m., just one-half hour later.
Trying to remove the extremely worn-out cross-key from
the equally worn-out draft gear of the old automatic
coupler, Mr. Albert rapidly swung the 16-pound sledge-
hammer thirty times in quick succession. Foreman Juarez
then ordered a forklift to yank the worn-out old cross-key
out of the worn-out old draft gear.

Trying to insert a new cross-key into the worn-out
old draft gear, Mr. Albert rapidly swung the 16-pound
sledgehammer thirty more times in quick succession. The
new cross-key only went halfway into the worn-out old
draft gear. Foreman Juarez then ordered a forklift to yank
the new cross-key out of the worn-out old draft gear so
that a burr caused by the pounding could be ground off
the cross-key.

Trying to reinsert the new cross-key into the worn-
out old draft gear, Mr. Albert rapidly swung the 16-
pound sledgehammer fifteen more times in just twenty-
five seconds. The new cross-key went but three-fourths of
the way into the worn-out old draft gear.

Feeling very tired and very, very weak, Mr. Albert
put down the 16-pound sledgehammer and entered the
bathroom. Meanwhile, Foreman Juarez ordered a forklift
to push the new cross-key the remaining one-fourth of
the way into the worn-out old draft gear. As a Southern
Pacific manager, Supervisor Jerry Cain testified:

“Q In your opinion, was that a proper method
of trying to pass a cross key?

Paramedics arrived and took Mr. Albert to a hospital
where he first saw Dr. Khan who diagnosed Mr. Albert's
first heart attack. As a treating physician and medical
expert, Dr. Khan testified:

“Q ...I1 am trying to isolate the variable of
Mr. Albert’s exertion at work... .

“A More likely is that he was involved in
heavy activity or exertion [at work] and he
got symptomatic following that, and most
likely that was the timing of his heart
attack.”

“Q....Is it correct, Doctor that it is your belief
that the exertion was a substantial factor in
bringing about his heart attack?

“A Yes.”

“Q .... Doctor, can you say to a degree of
reasonable medical or scientific probability
that Mr. Albert’s heart attack was brought
on by the exertion at work on March 28,
1991?

“A Yes, I agree.”

Each material fact with supporting or conflicting evi-
dence as presented to the courts below appears in the
Appendix. 21a-36a.

B. PROCEDURAL HISTORY

As a result of the damage to his heart, Mr. Albert
filed a Complaint for Damages for Personal Injuries
against Southern Pacific Transportation Company under
45 U.S.C. § 51 et seq. On the eve of trial, the railroad
moved for summary judgment asserting that “(1) plain-
tiff’s heart attack was not reasonably foreseeable by SP
and... (2) plaintiff cannot show by expert opinion that to
a reasonable medical probability, plaintiff’s heart attack
was caused or contributed to by alleged negligence on
SP’s part.” The railroad assumed its own negligence and
objected to Mr. Albert’s evidence on point as irrelevant.
At the hearing, the railroad twice conceded its negligence.
Yet, the superior court entered summary judgment on
December 29, 1992 (13a) based on the grounds in its
December 7, 1992, Order (14a-15a): (1) the railroad had no
prior knowledge that Mr. Albert had “any heart prob-
lems” and (2) the sledgehammer method used was not

“an inherently unsafe one.” The California Court of
Appeal, Second Appellate District, Division Four,
affirmed that judgment de novo in its published Opinion
filed on November 28, 1994. 1a-1la. The California Court
of Appeal denied rehearing on December 21, 1994. 12a.
The California Supreme Court denied review on February
23, 1995. 17a.

REASONS FOR GRANTING THE PETITION

In the superior court, the railroad argued (RT 4):

“IF THIS WERE A BACK CASE, WOULD THIS
BE A PROPER CASE FOR SUMMARY JUDG-
MENT{[?] AND, FRANKLY, I THINK IT WOULD
NOT. I THINK IF MR. ALBERT HAD RUP-
TURED A DISK, THE QUESTION OF FORE-
SEEABILITY WOULD BE SUCH THAT UNDER
THE LAW THAT SHOULD GO TO THE JURY.”

The railroad reiterated that oral argument in the appellate
court. Accord, Stone v. New York, Chicago & St. Louis Rail-
road Co., 344 U.S. 407, 408-409 (1953) (“The likelihood of
injury to men pulling or lifting beyond their capacity
[during repairs] is obvious.”).

Why is a ruptured disk different from a ruptured
coronary artery? Given the expert medical testimony of
Dr. Khan, it is not. Both conditions result from overstress-
ing a part of the body by the inordinate and unnecessary
exertion resulting from a work method that Supervisor
Jerry Cain, testifying as the railroad’s manager respons-
ible for its worker, Mr. Albert, described as improper.

In this case, the railroad’s abuse of “mortal clay” as
an alternative to a functioning hydraulic jack was unrea-
sonable, unsafe and unsuitable for the work required that
day: replacing an extremely worn-out cross-key in an

equally worn-out draft gear in an old automatic coupler
on a rush basis. Dr. Khan so testified. Facts Nos. 16, 18,
19, & 21-26 (21a-36a). The California state courts cannot
find otherwise as a matter of law under the FELA.

I. THIS CALIFORNIA STATE COURT OPINION,
AMONG OTHERS, CREATES A BASELESS JUDI-
CIAL EXEMPTION TO THE CLEAR LANGUAGE
OF THE FELA.

Concurrent state court FELA jurisdiction exists. 45
U.S.C. § 56 (1908, amended 1948). “Congress enacted the
FELA to provide a federal remedy for railroad workers
who suffer personal injuries as a result of the negligence
of their employer or their fellow employees.” Atchison,
Topeka & Santa Fe Railway Co. v. Buell, 480 U.S. 557, 561
(1987). “By imposing liability, FELA ... also was meant to
encourage employers to improve safety measures .. . to
avoid those claims.” Consolidated Rail Corp. v. Gottshall,
512 U.S. __, 114 S.Ct. 2496, 129 L.Ed.2d 427, 448 (1994).
This Court has “liberally construed FELA to further Con-
gress’ remedial goal.” Id. at 440. “To deprive these
workers of the benefit of a jury trial in close or doubtful
cases is to take away a goodly portion of the relief Con-
gress has afforded them.” Bailey v. Central Vermont Rail-
way Co., 319 U.S. 350, 354 (1943).

“Every common carrier by railroad while
engaged in commerce between any of the sev-
eral States .. . shall be liable in damages to any
person suffering injury while he is employed by
such carrier in such commerce . . . for such
injury .. . resulting in whole or in part from the
negligence of any of the officers, agents, or
employees of such carrier, or by reason of any
defect or insufficiency, due to its negligence, in
its cars, engines, appliances, machin-
ery, ... works... or other equipment.”

45 U.S.C. § 51 (1908, as amended 1939). Both parties agree
that the railroad, Mr. Albert, and his work fall within the

FELA. They agree that he suffered his heart attack at
work. They disagree on only one point: Is his first heart
attack one “resulting in whole or in part from the [rail-
road’s] negligence”?

FELA negligence, undefined by the statute, is a ques-
tion of federal law. Urie v. Thompson, 337 U.S. 163, 174
(1949). “Reasonable foreseeability of harm” is an essential
element of FELA negligence. Gallick v. Baltimore & Ohio
Railroad Co., 372 U.S. 108, 117 (1963). A railroad is liable
to its employee if it “ ‘knew, or by the exercise of due care
should have known’ that prevalent standards of conduct
were inadequate to protect [the injured employee] and
similarly situated employees.” Urie, supra, 337 U.S. at 178.

In Rodriguez v. Delray Connecting Railroad, 473 K2d
819, 819 (6th Cir. 1973) an employee “was injured while
on the job during an attempt to loosen spikes with a
sledge hammer type object known as a spike maul.” The
Rodriguez court concluded (id., 473 F.2d 821):

“What is ‘reasonably’ safe is affected to some
extent by the alternatives. Here there was testi-
mony that safety was an advantage of the
hydraulic spike remover. In view of this evi-
dence and considering the special treatment ~ ~
afforded F.E.L.A. cases, we cannot say that the
jury was not entitled to find the old maul
method ‘unreasonable.’ ”

In Pitt v. Pennsylvania Railroad Co., 66 F. Supp. 443,
445 (E.D. Pa. 1946) affirmed, 161 F.2d 733 (3d Cir. 1947) the
court considered “whether the defendant used ordinary
care to furnish plaintiff with an adequate, proper, effi-
cient and safe tool, reasonably suitable for the plaintiff's
use in the service he was directed to perform by the

10

defendant.” Finding the railroad negligent for providing
its employee with a hard steel 1'/2 pound ball-peen or
machinist hammer (instead of a soft steel carpenter’s or
claw hammer) with which to drive an eight-penny nail
into oak hardwood trim, the Pitt court explained (id., 66 F.
Supp. 446):
“ ‘It cannot be said, as a matter of law, without
reference to the use to be made of it, that
because a hammer *** is a common and simple
appliance, the master when furnishing it to his
servant for use in the discharge of his duties, as
such, does not owe to him the duty to use ordi-
nary care to see that it is reasonably suitable and
safe for the servant’s use in the service to be
performed by him.’ ”

Contributory negligence does not bar an employee's
recovery. 45 U.S.C. § 53 (1908). Assumption of the risk
does not bar an employee’s recovery. 45 U.S.C. § 54 (1908,
as amended 1939). As stated in Owens v. Union Pacific
Railroad Co., 319 U.S. 715, 721 (1943), however:

“Old confusions die hard. And in this instance
some refused to die at all or only did so inter-
mittently.”

“Congress, by abolishing the defense of assumption of
risk in that statute, did not mean to leave open the
identical defense for the master by changing its name to
‘non-negligence’.” Tiller v. Atlantic Coast Line Railroad Co.,
318 U.S. 54, 58 (1943).

“[An] FELA plaintiff need only present a mini-
mum amount of evidence in order to defeat a
motion for summary judgment. ‘[A] trial court is
justified in withdrawing .. . issue[s] from the
jury’s consideration only in those extremely rare

11

cases where there is zero probability either of
employer negligence or that any such negli-
gence contributed to the injury of an employee.’ ”

Hines v. Consolidated Rail Corp., 926 F.2d 262, 268 (3d Cir.
1991). Accord, Webb v. Illinois Central Railroad Co., 352 U.S.
512, 513-514 (1957); Ferguson v. Moore-McCormack Lines,
352 U.S. 521, 522-523 (1957); Wilkerson v. McCarthy, 336
U.S. 53, 60-61 (1948).

“Any ... device whatsoever, the purpose or intent of
which shall be to enable any common carrier to exempt
itself from any liability ..., shall to that extent be void
....” 45 U.S.C. § 55 (1908). The published opinion below
is wrong as a matter of law.

Its position is not unique. See, e.g., cases denying
FELA claims related to heart injuries: Creamer v. Odgen
Railway, 242 P.2d 575 (Utah 1952), cert. denied, 344 U.S. 912
(1953); Robert v. Consolidated Rail Corp., 832 F.3d 3, 6 (1st
Cir. 1987); New York, New Haven & Hartford Railroad Co. v.
Cragan, 352 F.2d 463 (1st Cir. 1965), cert. denied, 386 U.S.
1035 (1967); Thompson v. Tippit, 300 S.W.2d 351, 355 (Tex.
Civ. App. 1957), cert. dismissed, 355 U.S. 943 (1958). See,
also, Morrison v. Illinois Central Gulf Railroad Co., 387 So.2d
754 (Miss. 1980) (stroke).

In Russell Baker, Growing Up (Signet 1982) at 221, the
author describes his new step-father’s employment in
1939, as follows:

“Herb did join the railroad ...; he was a
fireman and had been for years. It was back-
breaking labor . . . If you survived, and if

enough engineers on the seniority ladder ahead
of you keeled over with heart attacks or came
down with tuberculosis or were scalded to

12

death in accidents, one day they would have to
call you in and tell you .. . you were going to be
the man at the throttle. This was the stage at
which Herb had arrived - waiting for the call
.... He was forty-five years old.”

How can a railroad employee’s heart attack be
“unforeseeable”?

“The companies have no hearts, and no sensa-
tions except through their financial nerves. The
only manner in which they can be persuaded to
take reasonable care of their employees is by
holding them responsible in damages for the
absence of such care. This is not unjust to the
companies.”

40 Cong. Rec. 4605 (1906). Only this Court can decisively
delete the baseless “one free heart attack” exemption the
cases above have wrongly read into the FELA.

II. THIS SOLE PUBLISHED CALIFORNIA STATE
COURT OPINION CONFLICTS WITH OTHER
FEDERAL AND STATE OPINIONS BASED ON
SIMILAR FACTS.

Congress intended to enact “the strongest law we can
pass.” 42 Cong. Rec. 4542 (1908). “It is being passed ... in
response to the demands of the laboring people of this
country for remedial and protective legislation.” 42 Cong.
Rec. 4550 (1908). “It is not intended to exclude anyone.”
42 Cong. Rec. 4541 (1908).

Reversing a railroad’s summary judgment, in Harbin
v. Burlington Northern Railroad Co., 921 F.2d 129, 130 (7th
Cir. 1990), the court recounts this evidence:

13

“Harbin’s complaint alleges that the Railroad
negligently caused his heart attack. He charges
the Railroad with negligence for failing to pro-
vide adequate ventilation or proper equipment
with which to perform the boiler cleaning task.

“Harbin proffers the testimony of a medical

expert... to establish a link between the Rail-
road’s negligence and his injury. At his deposi-
tion Dr. . . . testified that inhalation of

particulate matter may irritate the lungs, caus-
ing impairment of oxygen in the blood stream
and forcing the heart to pump at a rapid rate.
Dr. . . . offered his opinion that the strenuous
physical exertion involved in cleaning the
boilers, compounded by the additional stress
upon the heart attributable to the sooty atmo-
sphere, precipitated Harbin’s heart attack.”

“Although we discern no case presenting identical facts,
numerous FELA actions have been submitted to a jury
based upon far more tenuous proof - evidence scarcely
more substantial than pigeon bone broth.” Harbin, supra,
921 F.2d at 132. The Harbin court explained (Harbin, supra,
921 F.2d at 131-132):

“Harbin has adduced ample evidence bearing
upon the Railroad’s negligence to raise a jury
question. The facts establish that locomotives
emitting clouds of exhaust fumes were left run-
ning in an area with no special system of ven-
tilation. In this same building, Harbin was
directed to scrape clean boilers using a process that
generated additional soot and debris. . . . Instead of
utiliz‘ng an air pressure hose to disperse the thick
fog of soot particles generated in the boiler
cleaning process, the Railroad might have

14

employed a vacuum cleaner. . . . Based upon this
evidence, a jury could reasonably conclude that
the Railroad’s failure to employ a different
boiler cleaning method or take additional pre-
cautions to ensure safety of its employees was
negligent.”

Holding a railroad liable for the death of its
employee, in Pierce v. Southern Pacific Transportation Co.,
823 F.2d 1366, 1367 & 1372 n.2 (9th Cir. 1987) the court
ruled based on these facts:

“At the time of his death on November 8, 1980,
William Pierce was 46 years old and had been an
employee of SP for 28 years. He died because of
a heart attack brought on by stress-related
aggravation of a congenital heart disease known
as long-QT syndrome. Pierce was unaware of his
heart condition. [emphasis added]

“The events which caused the stress and resul-
tant heart attack occurred two days earlier. ....

[T]he negligent conduct of an accident investi-
gation and a decision to pull the victim from
service caused him emotional distress. That dis-
tress subsequently led to his death from a heart
attack, which was the physical manifestation of
the extreme stress and distress caused by the
Rule G accusation.

a“

.... [¥] Here the cause of the injury was
emotional but the plaintiff suffered a physical
condition, long-QT syndrome, that made him
unusually susceptible to the emotional injury.
When an emotional injury causes physical mani-
festations of distress we can see no principled
reason why the eggshell plaintiff doctrine
should not apply.”

15

Holding a railroad liable for its employee’s perma-
nent injuries, in Bailey v. Missouri Pacific Railroad Co., 383
So. 2d 397, 399 (La. App.), cert. denied, 385 So. 2d 784
(La.), cert. denied, 449 U.S. 836 (1980) the court based its
opinion on these findings:

““A. Defendant was negligent in requiring the
plaintiff to perform a two man job alone consid-
ering his age and the weather conditions.

“B. This negligence caused plaintiff's heart
attack and resulting damages.

“C. It was foreseeable considering plaintiff's age
[58 or 59 years] and weather conditions [hot and
humid] that he would suffer some sort of collapse
similar to that which he experienced [on-site heat
stroke followed by a myocardial infarction in the
hospital two days later] as a result of this increased
activity under the circumstances. [emphasis
added]

“D. Plaintiff was not negligent in performing
the task assigned to him which caused his col-
lapse. He could hardly refuse to do the work he
was instructed to do. The remaining crew mem-
bers had other tasks to perform. . . . He could
not procrastinate. . . . There was apparently no
other way to perform the work assigned to him
other than the way he did.’ ”

The Bailey court explained (Bailey, supra, 383 So. 2d 402):

“Defendant’s main argument against a finding
of negligence, aside from insufficiency of the
evidence, is that the plaintiff's heart attack was
unforeseeable because of his unknown arte-
riosclerotic condition... .

“ _.. Plaintiff’s heart attack and resulting inju-
ries, while perhaps unforeseeable, were conse-
quential to the foreseeable harm suffered

16

initially by defendant's negligence, i.e., collapse
or heat prostration; therefore, defendant is liable
in damages.”

Ill. THIS PUBLISHED CALIFORNIA STATE COURT
OPINION CAN AND SHOULD BE SUMMARILY
REVERSED PER CURIAM.

Historically, this court has curtailed hostile and inac-
curate state court interpretations of the FELA by sum-
mary reversal per curiam. See, e.g., Ringhiser v. Chesapeake
& Ohio Railway Co., 354 U.S. 901 (1957) and Conner v.
Butler, 361 U.S. 29 (1959). Mr. Albert invites this Court to
do so now.

CONCLUSION

For the reasons stated above, a writ of certiorari
should issue to review and reverse the judgment below.

Respectfully submitted,

BRIAN R. MAGANA
Counsel of Record
DEBORAH MITZENMACHER

MAGANA, CATHCART & McCartHy
1801 Avenue of the Stars, Suite 810
Los Angeles, California 90067-5899

(310) 553-6630
Attorneys for Petitioner

May 25, 1995

APPENDIX

ia

INDEX TO APPENDIX

Page
California Court of Appeal, Second Appellate Dis-

trict, Division Four, Opinion - November 28,

1994 - Albert v. Southern Pacific Transportation

Co., 30 Cal. App. 4th 529 (1994) ...........--- eee. la
California Court of Appeal Order - December 21,

|) SRNR RG Gara eaten we err rary ier or Oe eI 12a
Los Angeles County Superior Court Judgment -

Py en Le oe eee pe REN eee Om 13a
Los Angeles County Superior Court Order -

(ES OSS, ae: CREAR TG eek ae Ampere 14a
California Supreme Court Order - February 23,

5. RR Oar eT ee Oe re rer ree Trey renee re 17a
2h el ae. aah re. See ae re eeee ere 18a
13S Coie ee: WEE CET OEE 6 seo a vob cds haan eos 18a
45 U.S.C. §§ 51-60 (1908, as amended) ............. 19a

Plaintiff's Response in Opposition to Defendant
Southern Transportation Co.’s Separate State-
ment of Undisputed Material Facts - October
Fy RAE cheek « 5ece coh derds bans neneees it ees 21a

la

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF
THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT
DIVISION FOUR

BERTRAND E. ALBERT, No. B073689

Plaintiff and Appellant, (Super Ct.

)

)

) No. BC035177)
) (Filed
)

)

)

)

Vv.

SOUTHERN PACIFIC
TRANSPORTATION COMPANY,

Defendant and Respondent.

Nov. 28, 1994)

APPEAL from a judgment of the Superior Court of
Los Angeles County, David P. Yaffe, Judge. Affirmed.

Magana, Cathcart & McCarthy, Brian R. Magana and
Deborah Mitzenmacher for Plaintiff and Appellant.

Lane, Powell, Spears & Lubersky and Lawrence P.
Riff for Defendant and Respondent.

Bertrand E. Albert (Albert) appeals judgment entered
against him in his action against Southern Pacific Trans-
portation Company (ST or respondent) after the court
granted respondent’s motion for summary judgment.
(Code Civ. Proc., § 437c, subd. (c).)

While working for SP on March 28, 1991, Albert, then
55 years old, suffered a heart attack. He had never experi-
enced any symptoms or been told by any physician that
there was anything wrong with his heart. Until the attack,

2a

Albert felt “[vJery normal.” As a result, no one at SP had
any knowledge of his heart condition.

Albert had been a carman for SP since 1973, working
in the Cornfield Yard, where SP repairs and maintains its
cars. On March 28, 1991, during the 6 a.m. safety meeting,
Albert and his partner, Charlie Moten, were assigned to
replace couplers and perform other repairs on a car that
his supervisor wanted repaired before the SP switch
engine picked up the cars between 10:30 a.m. and noon. !

March 28 was a “clear, sunny” day. There was noth-
ing out of the ordinary about Albert’s physical condition.
Before stopping for lunch at 10:30 a.m., Albert had
replaced one coupler and changed the brake shoes on one
end of the car. At that time, Albert felt that everything
was “[bjeautiful.”

After lunch, Albert and Moten commenced work on
the second coupler. They had difficulty removing the
“cross key,” a large cotter pin-like device that fits into a
slot in the coupler. Although he had a 12-pound sledge-
hammer in his work cart, Albert attempted to drive the
key out of its slot with the 16-pound sledgehammer as
was his habit when there was a “cross key that did not
want to move.” Albert and Moten alternated turns using
the sledgehammer. Albert swung the sledgehammer 10
times in each of 3 sets, while Moten did not swing it as
many times.

While Albert was working on the coupler, Johnny
Juarez, the foreman, noticed that they were not having

1 Such a car is called a “hot car.”

3a

success with the sledgehammer and he suggested that it
would be easier to use a forklift and chain to finish the
job. Juarez then left and the forklift driver was sum-
moned to remove the cross key.

Juarez returned to the car after the cross key had
been removed. He monitored the progress made by
Albert. Albert said seeing his supervisor there “kind of
made me nervous in a way” knowing that the job was to
be completed by noon.

After removing the worn cross key, the forklift driver
delivered a replacement. They could not insert the new
cross key into the coupler. Albert and Moten repeated
their process of alternating in hitting the cross key with
the sledgehammer. Again the cross key was struck about
30 times by Albert and about 10 times by Moten. They
were not successful. The forklift driver was again sum-
moned to remove the new cross key, have it ground to
remove a burr that had formed on it, and returned to the
car.

After the forklift driver repositioned the cross key,
Albert hit it another 15 times in about 25 seconds, but
with no success. At that point, Albert felt tired, but not
ill. The forklift was used to pound the cross key in. On
the drive to the locker room, at about 12:55 p.m., Albert
experienced the onset of the heart attack symptoms.

On August 14, 1991, Albert filed a complaint against
respondent in which he alleged a cause of action for

negligence pursuant to the Federal Employers Liability
Act (FELA). Respondent answered and then moved for
summary judgment on the grounds that (1) Albert’s heart
attack was not foreseeable by SP, and (2) Albert could not

4a

show by expert opinion that, to a reasonable medical
probability, Albert’s heart attack was caused by SP’s neg-
ligence. The court granted the motion and entered judg-
ment for respondent.? This appeal followed. We affirm.

A motion for summary judgment shall be granted “if
all the papers submitted show that there is no triable
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” (Code Civ.
Proc., § 473c, subd. (c).) When the defendant is the mov- |
ing party, summary judgment is proper if the defendant |
demonstrates the absence of an essential element of the |
plaintiff’s case. (Dolquist v. City of Bellflower (1987) 196
Cal.App.3d 261, 266.) In the instant case, the trial court
granted summary judgment on the grounds that, as a
matter of law, Albert’s heart attack was unforeseeable,
thus negating an essential element of his negligence
action. Our review of this determination is de novo.
(Homestead Savings v. Darmiento (1991) 230 Cal.App.3d
424, 430.)

Under FELA a railroad employer is “liable in dam-
ages to any person suffering injury while he is employed
by such employer” for such injury or death resulting in
whole or in part caused by the employer’s negligence. (45
U.S.C., § 51.) Thus, the FELA plaintiff “must show both
negligence on the part of the employer and causation.”
(Heater v. Chesapeake and Ohio Railway Company (7th Cir.

* Albert objected to certain deposition testimony of him-
self, Johnny Juarez and Jeffrey Cain introduced in support of the
motion. The trial court impliedly overruled his objections. He
renews them on appeal. We have considered and also overrule
those objections.

5a

1974) 497 F.2d 1243, 1246.) The plaintiff must make out a
prima facie case of negligence on the part of the
employer, including the element of reasonable fore-
seeability. (Gallick v. Baltimore & Ohio R.R. Co. (1963) 372
U.S. 108, 117 [“reasonable foreseeability of harm is an
essential ingredient of [FELA] negligence [Citations.]”].)
“To recover, the plaintiff must prove that the railroad,
with the exercise of due care, could have reasonably
foreseen that a particular condition could cause injury.
[Citations.] The defendant’s duty is measured by what a
reasonably prudent person should or could have reason-
ably anticipated as occurring under like circumstances.
[Citation.]” (Davis v. Burlington Northern, Inc. (8th Cir.
1976) 541 F.2d 182, 185; Dale v. Baltimore & Ohio R. Co. (Pa.
1989) 552 A.2d 1037, 1038 [“a plaintiff must establish,
inter alia, that the employer could have foreseen that
injury to the employee was likely or reasonably proba-
ble. ...”].) Although foreseeability is ordinarily a ques-
tion of fact for the jury, it can be decided as a matter of
law when “reasonable minds cannot disagree on the pro-
priety of the [trial] court’s resolution of the issue.” (Id. at
p. 1040.)

Relevant authority holds that a railroad employer
cannot be held liable under FELA for a heart attack
suffered by its employee in the regular course of his

employment when neither the railroad nor the employee
had any reason to believe that the employee had a heart
condition. Under these circumstances, the injury was not
reasonably foreseeable. (Robert v. Consolidated Rail Corp.
(1st Cir. 1987) 832 F.2d 3, 5-7; Morrison v. Illinois Cent. Gulf
R. Co. (Miss. 1980) 387 So.2d 754, 756; Thompson v. Tippit
(Tex. App. 1957) 300 S.W.2d 351, 355-358; Creamer v.

6a

Ogden Union Railway & Depot Co. (Utah 1952) 242 P.2d
575, 577-578.)

In Robert, the plaintiff alleged that he suffered an off-
the-job heart attack as the result of an extended period of
on-the-job harassment by his supervisors. Conrail moved
for summary judgment on the grounds that the plaintiff's
heart attack was unforeseeable because he had never
previously experienced symptoms of heart trouble, had
not complained about the harassment or related stress
and had not alleged that Conrail negligently failed to
stop the harassment. (Robert v. Consolidated Rail Corp.,
supra, 832 F.2d at p. 5.) The trial court granted summary
judgment and the plaintiff appealed:

On appeal, while acknowledging the broad remedial
purpose of FELA, the reviewing court upheld the sum-
mary judgment because the plaintiff’s “case is lacking as
to proof of foreseeability. .. . [T]he record fails to show
that Conrail knew or should have known of the possi-
bility that its conduct toward Robert would cause him to
suffer a heart attack. We would have a much different
case if Conrail, knowing of appellant’s heart condition,
acted negligently toward Robert.” (Robert v. Consolidated
Rail Corp., supra, 832 F.2d at p. 6, fn. omitted.) The court
concluded that the plaintiff “failed to establish that Con-
rail could or should reasonably have foreseen that he
would suffer a heart attack from stress of which Conrail
was never informed.” (Id. at p. 7.)

Similarly, in Morrison, the reviewing court upheld a
directed verdict where the plaintiff, who suffered an on-
the-job stroke, claimed that the railroad was negligent in
failing to restrict his duties to avoid the possibility of a

7a

stroke or heart attack when there was no evidence that he
suffered from a medical condition that might induce a
stroke or heart attack. (Morrison v. Illinois Cent. Gulf R.
Co., supra, 387 So.2d at p. 756.)

In Thompson, the plaintiff suffered from an arterial
condition that made him susceptible to heart attack but
neither he nor his employer, the railroad company, was
aware of it. While engaged in heavy physical exertion,
the plaintiff sustained a heart attack and subsequently
brought a suit against the railroad under FELA. The jury
returned a verdict in his favor. The railroad appealed and
the judgment was reversed on the grounds that the evi-
dence failed to support a finding of negligence because
“the record is still devoid of any evidence from which it
may be fairly said that the defendant was charged with
notice of any fact or facts from which the heart attack
which plaintiff sustained could be anticipated as a result
of the work to which he was assigned.” (Thompson v.
Tippit, supra, 300 S.W.2d at p. 355, original italics.)

Finally, in Creamer, cited by the court below in sup-
port of its decision, the reviewing court reversed a judg-
ment in favor of a plaintiff who suffered an on-the-job
heart attack while in the course of his employment
because of a latent rheumatic heart condition of which
neither he nor the railroad was aware. At trial, the plain-
tiff argued that the railroad was negligent in failing to
supply him with equipment that would have eliminated
the necessity of any physical exertion on his part. The
court rejected the argument, holding that to impose lia-
bility based on a physical condition known neither to the
employee nor the employer “is to predicate negligence on
some elusive quality of clairvoyance quite inconsistent

8a

with principles of reasonable foreseeability. (Creamer v.
Ogden Union Railway & Depot Co., supra, 242 P.2d at p. 577,
fn. omitted.)

By contrast, in Stewart v. Alton and Southern Ry. Co.
(Mo.App. E.D. 1993) 849 S.W.2d 119, the plaintiff alleged
that his on-the-job heart attack was due to verbal harass-
ment by his supervisor. The evidence showed that the
employee had complained to the supervisor of pain and
that he was known by the supervisor to suffer from high
blood pressure. Under such circumstances, the reviewing
court held that foreseeability was established by the
employee's “[p]rotestations of discomfort. ...” (Id. at p.
126.)

What these cases establish is the principle that lia-
bility may not be imposed on a railroad under FELA
when an employee suffers a heart attack in the ordinary
course of his employment where neither he nor the rail-
road have any notice of heart trouble and the employee
has not complained of discomfort or pain prior to the
heart attack. Under such circumstances, the injury is not
reasonably foreseeable as a matter of law. Absent fore-
seeability, negligence is not established under FELA and
without a showing of negligence, recovery is not permit-
ted. (Robert v. Consolidated Rail Corp., supra, 832 F.2d at p.
6 ["“FELA does not impose strict liability on
employers.” ].)

In the instant case, the evidence shows that neither
Albert nor SP was aware that he suffered from any kind
of heart trouble nor did he complain of pain or discom-
fort prior to his heart attack. Moreover, contrary to
Albert’s assertions on appeal, there is no support in the

9a

record for the claim that he was subjected to any unusual
Stress to get the job done nor that the weather was
unseasonably hot. Based on the evidence adduced below,
it was not reasonably foreseeable to SP that Albert would
suffer a heart attack in the performance of his regular
duties and, therefore, SP was not negligent.

In the court below, and at oral argument, Albert
contended that SP’s failure to provide him with a func-
tional hydraulic jack, as an alternative to a sledgeham-
mer, to remove the cross key arguably violated its duty to
provide him with proper tools, and liability could be
assessed against SP on this ground. The argument is
without merit.

In the first place, as the trial court found, the failure
to provide an employee with alternative means to do his
job is not negligence unless the means provided are
inherently unsafe. (Soto v. Southern Pacific Transp. Co. (5th
Cir. 1981) 644 F.2d 1147, 1148.) There was no such show-
ing made here. The only evidence introduced by Albert
was a fragment of deposition testimony by one Jeffrey
Cain that he would have advised use of a hydraulic jack
rather than a sledgehammer to remove the cross key but
Cain was not a percipient witness nor, apparently, was he
qualified as an expert. By contrast, Albert himself testi-
fied that he used the sledgehammer “[w]henever we had
a cross key that did not want to move.”3 Accordingly,
Albert failed to make a showing that use of the sledge-
hammer was inherently unsafe.

* Bizarrely, having raised this issue before, Albert argues
on appeal that the court denied him due process by making a
finding on it. There is no merit to this claim.

10a

In any event, whether SP should have provided
Albert with an alternative to the sledgehammer still
requires a showing that a heart attack was a foreseeable
consequence of his use of the sledgehammer. This simply
has not been established. In essence, the same argument
that Albert makes now was made by the plaintiffs in
Morrison and Creamer. where it was argued that the rail-
road was negligent in failing either to have restricted
their duties (Morrison v. Illinois Cent. Gulf R. Co., supra,
387 So.2d at p. 756), or provided them with equipment
that would have minimized physical exertion (Creamer v.
Ogden Union Railway & Depot Co., supra, 242 P.2d at pp.
577-578). In each case the court rejected the argument
because of the unforeseeability of the stroke (Morrison) or
heart attack (Creamer). Similarly, because it was not fore-
seeable to SP that Albert might suffer a heart attack as the
result of the physical exertion involved in his job, its
failure to provide him with a hydraulic jack or some other
means of doing his job was not negligence.

Equally without merit is Albert’s repeated assertion
that SP is liable for his injury even though other causes
may have contributed to it. This contention confuses caus-
ation with negligence, which Albert is also required to
prove. (Heater v. Chesapeake and Ohio Railway Company,
supra, 497 F.2d at p. 1246.) The fact that his employment
may have been a cause of his heart attack does not make
SP liable for his injury in the absence of proof of its
negligence. It was the absence of negligence, not causa-
tion, that supports summary judgment in this case.

Finally, we have read and considered the two deci-
sions on which Albert principally relies for the proposi-
tion that this heart attack was foreseeable. (Pierce v.

a

lla

Southern Pacific Transp. Co. (9th Cir. 1987) 823 F.2d 1366,
and Bailey v. Missouri Pac. R. Co. (3d Cir. 1980) 383 So.2d
397.) Both Pierce and Bailey are legally and factually dis-
tinguishable from the instant case.

The judgment is affirmed. SP to have its costs on
appeal.

CERTIFIED FOR PUBLICATION.
WOODS (Arleigh), PJ.
We concur:
VOGEL (C.S.), J.
HASTINGS, J.

12a

OFFICE OF THE CLERK
COURT OF APPEAL
STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT
JOSEPH A. LANE, CLERK

DIVISION: 4 DATE: 12/21/94

Magana, Cathcart & Mccarthy
Brian R. Magana

1801 Avenue of the Stars
Suite 810

Los Angeles, CA. 90067

RE: Albert, Bertrand E.
Vs.
Southern Pacific Transportation Co.
2 Civil B073689
Los Angeles NO. BC035177

THE COURT:

Petition for rehearing denied.

ieee ea

13a

Lawrence P. Riff, (State Bar No. 104826)
LANE POWELL SPEARS LUBERSKY
333 South Hope Street, Suite 2400

Los Angeles, California 90071
Telephone: (213) 680-1010

Attorneys for Defendant, SOUTHERN PACIFIC
TRANSPORTATION COMPANY

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES

BERTRAND E. ALBERT, ) CASE NO.
Plaintiff, ) BC 035 177
JUDGMENT

e (C.C.P. §437c)
SOUTHERN PACIFIC
TRANSPORTATION CO., [PROPOSED]
Defendant. ) (Filed

Dec. 29, 1992)

This court, having on December 7, 1992, granted
Defendant SOUTHERN PACIFIC TRANSPORTATION
COMPANY ’S Motion for Summary Judgment, and having
ordered entry of judgment as requested in said Motion:

IT IS ORDERED, ADJUDGED, AND DECREED that
plaintiff, BERTRAND E. ALBERT shall take nothing, and
that defendant, SOUTHERN PACIFIC TRANSPORTA-
TION, shall recover from plaintiff costs of suit herein in
the amount of $
DATED: Dec. 29, 1992 /s/ Judge David P. Yaffe

JUDGE OF THE
SUPERIOR COURT

l4a

SUPERIOR COURT OF CALIFORNIA,
COUNTY OF LOS ANGELES

Date: December 7, 1992 ) T. Acuna,
Honorable David P. Yaffe, ) Deputy Clerk

Judge ) None (C.S.R.)
12. A. Ayala, )
C.S.L.

(Parties and Counsel! checked if present)

BC035177 Counsel For
Plaintiff:
BRIAN MAGANA

ALBERT, BERTRAND E.

vs.

SOUTHERN PACIFIC
TRANSPORTATION COMPANY

Counsel For
Defendant:
LAWRENCE P. RIFF

NATURE OF PROCEEDINGS:
MOTION OF DEFENDANTS FOR SUMMARY JUDG-
MENT.

Motion for Summary Judgment having been taken under
submission on December 2, 1992, the court rules as fol-
lows:

Motion is granted.

Evidence is adduced in support of the motion that plain- |
tiff’s heart attack was not foreseeable by defendant. That
evidence consists of plaintiff’s deposition testimony that |
he had no reason to suspect before the heart attack that

15a

there was anything wrong with his heart, and the deposi-
tion testimony of defendant’s foreman and manager to
the effect that they had no knowledge that plaintiff had
any heart problems before he suffered his heart attack.
Plaintiff produces no contrary evidence to create a triable
issue of fact, but relies instead on the contention that
because plaintiff was 57 years old and had been a smoker
it was reasonably foreseeable that he would suffer injury
if required to do the strenuous work of the type he was
performing when he sustained his heart attack. Such
contention has been rejected on the ground that to accept
it, “is to predicate negligence on some elusive quality of
clairvoyance quite inconsistent with principles of reason-
able foreseeability.” Creamer v. Ogden Union Railway, 242
P2d 575, 577 (Utah Sup Ct, 1952).

Although it is true that foreseeability is ordinarily a triable
issue, it may be decided as a question of law if, under the
undisputed facts, there is no room for a reasonable differ-
ence of opinion. The evidence in support of the motion
shows the absence of any reasonable difference of opin-
ion, to the extent that it is possible to prove such a
negative.

Plaintiff has come forth with no controverting evidence,
except that one witness Jeffrey L. Cain, testified that if he
had been present he would have recommended the use of
a jack to do the work instead of a sledge hammer. Plain-
tiff argues that such evidence creates a triable issue as to
the existence of a “threshold tort”, and that any damages
flowing from it are recoverable. However, the fact that
there were other, more advanced methods that could
have been used to do the work is of no significance where

16a

the method used was not an inherently unsafe one. Soto v.
Southern Pacific, 644 F2d 1147, 1148 (5th Cir. 1981).

In granting this motion the court does not adopt defen-
dants’ argument that it may base its motion upon a
failure by plaintiff to demonstrate that he can support his
claim. Under California practice it is the defendant who
must affirmatively prove that plaintiff does not have a
case, but defendant has met that burden here.

Counsel for defendant to prepare the judgment, serve
opposing counsel and the court. The court will hold for
ten days prior to signing and filing.

The Court orders the Final Status Conference and Jury
Trial off calendar as moot.

A true copy of this minute order is mailed via U.S. Mail
this date to counsel as follows:

Brian Magana, Esquire Lawrence P. Riff, Esquire
1801 Avenue of the Stars 333 South Hope Street
Suite 810 Suite 2400

Los Angeles CA 90067 Los Angeles CA 90071

17a

Second Appellate District, Division Four,
No. B073689 -— S044229

IN THE SUPREME COURT OF
THE STATE OF CALIFORNIA

IN BANK
(Filed Feb. 23, 1995)

BERTRAND E. ALBERT, Appellant
V.

SOUTHERN PACIFIC TRANSPORTATION
COMPANY, Respondent

Appellant’s petition for review DENIED.

Mosk, J. is of the opinion the petition should be
granted.

Lucas
Chief Justice

18a

CONSTITUTIONAL PROVISIONS INVOLVED
U.S. CONST. ART. VI, CL. 2 (1787)

This Constitution, and the Laws of the United States
which shall be made in Pursuance thereof... shall be the
supreme Law of the Land; and the Judges in every State
shall be bound thereby . .

U.S. CONST. AMEND. VII (1791)

In Suits at common law, where the value in contro-
versy shall exceed twenty dollars, the right of trial by
jury shall be preserved, and no fact tried by jury shall be
otherwise re-examined in any Court of the United States,
than according to the rules of the common law.

19a

FEDERAL EMPLOYERS’ LIABILITY ACT
TITLE 45 - RAILROADS
CHAPTER 2 - LIABILITY FOR INJURIES
TO EMPLOYEES
45 U.S.C. §§ 51-60 (1908, as amended)

§ 51. Liability of common carriers by railroad, in inter-
state or foreign commerce, for injuries to
employees from negligence; employee defined

Every common carrier by railroad while engaged in
commerce between any of the several States ... , shall be
liable in damages to any person suffering injury while he
is employed by such carrier in such commerce . . . , for
such injury .. . resulting in whole or in part from the
negligence of any of the officers, agents, or employees of
such carrier, or by reason of any defect or insufficiency,
due to its negligence, in its cars, engines, appliances,
machinery, track, roadbed, works, boats, wharves, or
other equipment. .... (Apr. 22, 1908, c. 149, § 1, 35 Stat.
65; Aug. 11, 1939, c. 685, § 1, 53 Stat. 1404.)

§ 53. Contributory negligence; diminution of damages

In any actions . . . brought against any such common
carrier by railroad under or by virtue of any provisions of
this chapter to recover damages for personal injuries to
an employee ..., the fact that the employee may have
been guilty of contributory negligence shall not bar a
recovery, but the damages shall be diminished by the jury
in proportion to the amount of negligence attributable to
such employee .. . . (Apr. 22, 1908, c. 149, § 3, 35 Stat. 66.)

20a

§ 54. Assumption of risks of employment

In any action brought against any common carrier
under or by virtue of any provisions of this chapter to
recover damages for injuries to .. . any of its employees,
such employee shall not be held to have assumed the
risks of his employment in any case where such injury

. resulted in whole or in part from the negligence of
any of the officers, agents, or employees of such carrier;
and no employee shall be held to have assumed the risks
of his employment in any case, where the violation by
such common carrier of any statute enacted for the safety
of employees contributed to the injury .. . of such
employee. (Apr. 22, 1908, c. 149, § 4, 35 Stat. 66; Aug. 11,
1939, c. 685, § 1, 53 Stat. 1404.)

§ 55. Contract, rule, regulation, or device exempting
from liability; set-off

Any contract, rule, regulation, or device whatsoever,
the purpose or intent of which shall be to enable any
common carrier to exempt itself from any liability created
by this chapter, shall to that extent be void... . (Apr. 22,
1908, c. 149, § 5, 35 Stat. 66.)

21a

Brian R. Magafia State Bar. No. 57680
MAGANA, CATHCART & McCARTHY
1801 Avenue of the Stars, Suite 810
Los Angeles, California 90067

(310) 553-6630

Attorneys for Plaintiff
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES

CASE NO. BC 035 177

PLAINTIFF’S RESPONSE
IN OPPOSITION TO
DEFENDANT SOUTHERN
PACIFIC
TRANSPORTATION CO.’S
SEPARATE STATEMENT
OF UNDISPUTED
MATERIAL FACTS

BERTRAND E. ALBERT, )
)
)
)
)
)
)
)
)
)
) DATE: Nov. 12, 1992
)
)
)
)
)
)
)
)
)
)

Plaintiff,
VS.

SOUTHERN PACIFIC
TRANSPORTATION CO.,

Defendant.

TIME: 8:30 a.m.
DEPT: 68

DISCOVERY

CUTOFF: None
MOTION

CUT-OFF: 10/30/92
TRIAL DATE:

Dec. 14, 1992

(Filed Oct. 29, 1992)

Plaintiff BERTRAND E. ALBERT submits this oppos-
ing response under Cal. Civ. Proc. Code § 437c(b) (1990)
to the separate statement of undisputed material facts
submitted by defendant SOUTHERN PACIFIC TRANS-
PORTATION CO.:

22a

DEFENDANT'S FACTS:

a

Plaintiff was not
aware that he suffered
from any heart ail-
ments or infirmities
prior to his heart
attack on March 28,
1991.

No doctor had ever
told plaintiff he had
any heart problems
prior to the date of his
heart attack.

Plaintiff felt fine the
day of his heart attack
prior to the heart
attack occurring.

Plaintiff felt fine even
while performing his
duties prior to his
heart attack occurring.

RESPONSE:

UNDISPUTED.
The phrase “prior to his
heart attack,” however, is

vague and ambiguous. Cal.
Evid. Code § 350.

UNDISPUTED.

Albert Depo. EX A 46:13-20
& 51:23-52:5.

DISPUTED.

Khan Depo. EX 1 59:17-19
& 45:13-23; Albert Depo.
EX 2 46:5-7, 64:19-24,
72:4-5, 73:8-9 & 15-17,
73:18-74:1, 74:5-75:1,
75:11-14 & 24-25, & 76:1-2.

Albert Depo. EX A
61:19-62:5 & 63:5-8.
DISPUTED.

Kahn Depo. EX 1 59:17-19
& 45:13-23; Albert Depo.
EX 2 46:5-7, 64:19-24,
72:4-5, 73:8-9 & 15-17,
73:18-74:16. The phrase
“prior to his heart attack
occurring” is vague and
ambiguous, hence, irrele-
vant and inadmissible. Cal.
Evid. Code §350.

J

23a

Jerry Cain, plaintiff's
manager, was not
aware that plaintiff
had any heart prob-
lems prior to plain-
tiff’s March 28, 1991
heart attack.

John Juarez, Plaintiff’s
foreman, was not
aware that plaintiff
had any heart prob-
lems prior to piain-
tiff’s March 28, 199]
heart attack.

Plaintiff had no signif-
icant history to indi-
cate a pending heart
attack.

Cain Depo. EX E 42:16-22.
DISPUTED.

Albert Depo. EX 2 7:25-8:1,
23:11-13, 28:7-9 & 47:2-10;
Khan Depo. EX 1 20:8-11,
21:5-6 & 55:15-56:13.

Juarez Depo. EX D 48:7-19.
DISPUTED.

Albert Depo. EX 2 59:7-9,
60:6-12, 64:4-7, 66:16-23,
67:2-6, 71:1-11, 72:4-5 &
74:1-7; Albert Depo. EX 2
7:25-8:1, 23:11-13, 28:7-9 &
47:2-10; Khan Depo. EX 1
20:8-11, 21:5-6 &
95:15-56:13. The phrase
“prior to plaintiff’s
- . - heart attack” is vague
and ambiguous, hence,

irrelevant and inadmiss-
ible. Cal. Evid. Code § 350.

Khan Depo. EX F 18:7-11.
DISPUTED.

Albert Depo. EX 2 7:25-8:1,
23:11-13, 28:7-9 & 47:2-10:
Khan Depo. EX 1 20:8-11,
21:5-6 & 55:15-56:13. The
phrase “significant history”
is vague and ambiguous,
hence, irrelevant and inad-
missible. Cal. Evid. Code
§350. Defendant did not
establish that the witness
has personal knowledge on

24a

point as required by Cal.
Evid. Code §702(a); Cal.
Civ. Proc. Code §437c(d) &
L.D.P.M. 4204(1). Hearsay
is not admissible. Cal. Evid.
Code §1200. Moreover, the
conflict between the “no
significant PMH” entry in
the hospital admission
records and the “signficant
past medical history” entry
on the hospital discharge
summary evidence at Khan
Depo. EX F 17:22-18:8 cre-
ates a triable issue of mate-
rial fact.

8. Plaintiff had never Kahn Depo. EX F 19:6-18.
suffered prior chest DISPUTED.
pains. Defendant did not establish
that the witness has per-
sonal knowledge on point
as required by Cal. Evid.
Code §702(a); Cal. Civ.
Proc. Code §437c(d) &
L.D.P.M. 4204(1). Hearsay
is not admissible. Cal. Evid.
Code §1200.

9. Plaintiff had no indi- Khan Depo. EX F 21:7-16.
cation of heart disease DISPUTED.
prior to the day his Albert Depo. EX 2 7:25-8:1,
heart attack occurred. 23:11-13, 28:7-9 & 47:2-10;
Khan Depo. EX 1 20:8-11,
21:5-6 & 55:15-56:13. The
phrase “indication of heart
disease” is vague and
ambiguous, hence, irrele-
vant and inadmissible. Cal.
Evid. Code §350.

10.

A;

12.

25a

Plaintiff had never
suffered any angina.

It cannot be predicted
when someone is
going to have a heart
attack.

Plaintiff showed no
symptoms to indicate
he could not reason-
ably be expected to
carry on strenuous
activity the day his
heart attack occurred.

Khan Depo. EX F 50:10-22.
DISPUTED.

Defendant did not establish
that the witness has per-
sonal knowledge on point
as required by Cal. Evid.
Code §702(a); Cal. Civ.
Proc. Code §437c(d) &
L.D.P.M. $204(1). Hearsay
is not admissible. Cal. Evid.
Code §1200.

Khan Depo. EX F 53:23-24.
DISPUTED.

Khan Depo. EX 1 20:8-11,
21:5-6, 52:8-12, 54:7-15 &
55:15-56:13. The terms
“when” and “someone” are
vague and ambiguous,
hence, irrelevant and inad-
missible. Cal. Evid. Code
§350. Defendant did not
establish that the witness
had expertise on point as
required by Cal. Evid.
Code §§702(a), 720(a) &
801(b); Cal. Civ. Proc. Code
§437c(d) & L.D.P.M. $204.
See also, Evidentiary
Objections to Khan Depo.
EX F.

Khan Depo. EX F 73:2-13.
DISPUTED.

Albert Depo. EX 2 7:25-8:1,
23:11-13, 28:7-9 & 47:2-10;
Khan Depo. EX 1 20:8-11,
21:5-6, 55:15-56:13 &
57:2-58:7. The phrase “no

13.

26a

Plaintiff’s heart attack
could have occurred
without the exertion
he performed at work
the day of his heart
attack.

symptoms to indicate” is
vague and ambiguous,
hence, irrelevant and inad-
missible. Cal. Evid. Code
§350. Defendant did not
establish that the witness
has personal knowledge on
point as required by Cal.
Evid. Code §702(a); Cal.
Civ. Proc. Code §437c(d) &
L.D.P.M. 4204(1). Hearsay
is not admissible. Cal. Evid.
Code §1200. Defendant did
not establish that the wit-
ness has expertise on point
as required by Cal. Evid.
Code §§702(a), 720(a) &
801(b); Cal. Civ. Proc. Code
§437c(d) & L.D.P.M. 7204.
See evidentiary Objections
to Khan Depo. EX F.

Khan Depo. EX F
53:25-54:6.

DISPUTED.

Khan Depo. EX 1 52:8-12 &
54:7-15. This fact is not
material. The phrase
“could have” is vague and
ambiguous, hence irrele-
vant and inadmissible. Cal.
Evid. Code §350. Defen-
dant did not establish that
the witness has expertise
on point as required by
Cal. Evid. Code §§702(a),
720(a) & 801(b); Cal. Civ.
Proc. Code §437c(d) &

14.

27a

Plaintiff’s treating car-
diologist cannot testify
that to a reasonable
medical probability,
plaintiff's activities of
March 28, 1991 caused
or contributed to his
heart attack.

FURTHER UNDISPUTED

L.D.P.M. 4204. See, also,
Evidentiary Objections to
Khan Depo. EX F.

Khan Depo. EX F
52:20-54:20.

DISPUTED.

Khan Depo. EX 1 50:2-5 &
13-17, 51:23-24, 52:8-12,
94:8-15 & 57:2-58:7. As
stated, this fact is not mate-
rial. This fact mischaracter-
izes Dr. Khan’s testimony
and misstates the applica-
ble F.E.L.A. legal standard.
See, Evidentiary Objections
to Khan Depo. EX F.

SUPPORTING EVIDENCE:

FACTS:

15.

16.

57,

18.

On March 28, 1991,
plaintiff ALBERT was
a 55.5 year-old male.

Males are more prone
to coronary artery dis-
ease than females.

Plaintiff ALBERT
smoked cigarettes at
defendant’s cornfield
yard.

Smoking is one risk
factor in coronary
artery disease.

Albert Depo. EX 2 7:25-8:1
& 23:11-13.

Khan Depo. EX 1 21:5-6;
Cal. Evid. Code §451(f).

Albert Depo. EX 2 47:2-8.

Khan Depo. EX 1 20:8-10.

19.

20.

ai.

22.

aa.

24.

28a

A person 55.5 years
old is more at risk of
having a myocardial
infarction than a per-
son who is younger.

Dr. Nelson, not Dr.
Khan, is plaintiff
ALBERT’s regular
family doctor.

A mycocardial [sic]
infarction or heart
attack is an evolving
process, occurring
over a period of time.

A heart attack is death
or damage to the heart
muscle caused by an
insufficiency of blood
to that muscle result-
ing from a blockage of
the blood vessel sup-
plying the heart mus-
cle.

Arteriosclerotic heart
disease among Ameri-
can males is common.

Arteriosclerotic heart
disease is common in
asymptomatic Ameri-
can males over the age
of 18.

Khan Depo. EX 1 60:16-23;
Cal. Evid. Code §451(f).

Albert Depo. EX 2 28:7-11.

Khan Depo. EX 1 59:17-19.

Khan Depo. EX 1 45:13-23.

Khan Depo. EX 1 55:15-23;
Cal. Evid. Code §451(f).

Khan Depo. EX 1
55:15-56:13; Cal. Evid. Code
§451(f).

y

26.

28.

29a

Exercise or physical
exertion substantially
increases the risk of a
myocardial infarction,
especially in one who
has pre-existing heart
damage or heart dis-
ease.

To a reasonable medi-
cal or scientific proba-
bility plaintiff
ALBERT’s physical
exertion at work on
March 28, 1991 caused
his heart attack.

At the 6:00 a.m. safety
meeting on March 28,
1991, SOUTHERN
PACIFIC foreman
John Juarez told plain-
tiff ALBERT that he
must complete all of
the repairs on his
assigned “hot car”
that morning before
the switch engine
arrived between 10:30
a.m. and about 12:00
noon.

SOUTHERN PACIFIC
foreman John Juarez
stood over plaintiff
ALBERT on March 28,
1991, making him ner-
vous and pushing him
to complete the
repairs rapidly.

Khan Depo. EX 1 57:2-58:7.

Khan Depo. EX 1 50:2-5 &
13-17, 51:23-24, 52:8-12,
94:8-10 & 57:2-58:7.

Albert Depo. EX 2 39:4-12
& 19-23; 40:3-18, 42:3-12 &
19-25, 43:7-9 & 16-19.

Albert Depo. EX 2 71:1-11
& 72:4-5.

29.

30.

31.

30a

Charlie Moten, the
only SOUTHERN
PACIFIC employee
assigned by SOUTH-
ERN PACIFIC to help
plaintiff ALBERT, was
even older than plain-

tiff ALBERT.

As SOUTHERN
PACIFIC foreman
John Juarez knew,
plaintiff ALBERT
alone performed all of
the repairs at one end
of his assigned “hot
car” on March 28,
1991, between 9:30
a.m. and 10:30 a.m.

As SOUTHERN
PACIFIC foreman
John Juarez saw for
himself, plaintiff
ALBERT, racing to
repair the “hot car”
before the switch
engine arrived, rap-
idly swung the 16-
pound sledgehammer
repeatedly (about 30
times) on March 28,
1991, after 11:30 a.m.
while trying to
remove the old cross-
key from the second
railcar coupler.

Albert Depo. EX 2 49:8-11,
53:9-12 & 44:2-4 & 10-12.

Albert Depo. EX 2 48:19-25,
49:12-25, 50:1-12 & 15-22,
51:1-6, 59:7-9 & 60:6-12.

Albert Depo. EX 2 52:6-16,
53:6-8 & 12-22, 57:23-58:1,
59:1-3 & 60:6-8.

Sak 6 OG ee a os

EE PEIN ae CEO a a ay Ee

32.

33.

34.

3la

The old cross-key was
very hard to remove
from the second ,ail-
car coupler because
the old cross-key was
worn and indented
with the slack out-
ward plus the draft
gear holding it [sic]
place was no good, all
worn out.

SOUTHERN PACIFIC
foreman John Juarez
instructed plaintiff
ALBERT to have a
forklift called Big Red
No. 3 chained to the
old cross-key to yank
it out.

As SOUTHERN
PACIFIC foreman
John Juarez saw for
himself, plaintiff
ALBERT, racing to
repair the “hot car”
before the switch
engine arrived, rap-
idly swung the 16-
pound sledgehammer
repeatedly (about 30
times) on March 28,
1991, after 11:30 a.m.
thereby inserting the
new cross-key only
halfway into the sec-
ond railcar coupler
before it stuck.

Albert Depo. EX 2 56-7-13,

56:20-57:2 & 77:23-78:3.

Albert Depo. EX 2 59:7-9 &

60:6-14.

Albert Depo. EX

?

—

62:23-63:4, 63:9-11 & 22-24,
64:4-7 & 13-23, & 65:4-6 &

11-3.

32a

The forklift called Big Albert Depo. EX 2 64:15-20.
Red No. 3 pulled out

the half-installed new

cross-key and some

SOUTHERN PACIFIC

employee had to

grind off a burr on the

“too tight” new cross-

key.

As SOUTHERN Albert Depo. EX 2 64:4-7 &
PACIFIC Foreman _ 20-23, 66:19-67:6, 70:8-10 & :
John Juarez saw for 16-25, 71:1-11 & 72:4-5.

himself, plaintiff

ALBERT, racing to

repair the “hot car”
before the switch

engine arrived, rap-

idly swung the 16-
pound sledgehammer
repeatedly (about 15

times) in 25 seconds

on March 28, 1991,

after 11:30 a.m.,

thereby inserting the :
new cross-key three-
fourths of the way
into the second railcar
coupler before he put
down the sledgeham-
mer.

SOUTHERN PACIFIC Albert Depo. EX 2 73:19-22.
foreman John Juarez
ordered the forklift
called Big Red No. 3
to finish pushing the
new cross-key the

ee ee ee ae a ee

Li 6 Akin lh, SDA os a Badge id

PER DADLES DR, AS, se OH bia ie eKits

rh

33a

remaining one-fourth
of the way into the
second railcar coupler.

38. When plaintiff Albert Depo. EX 2 64:22-24,
ALBERT put down the 73:8-9, 73:19-25, 74:13-16.
16-pound sledgeham-
mer, he felt very tired
and very, very weak.

39. Despite plaintiff Albert Depo. EX 2 74:5-12.
ALBERT’s obviously
weak condition,
SOUTHERN PACIFIC
foreman John Juarez
assigned plaintiff
ALBERT more work.

40. At about 12:00 - 12:15 Albert Depo. EX 2 74:18-25;
P-m. on March 28, Juarez Depo. EX 3 28:6-9.
1991, plaintiff
ALBERT, entered the
bathroom at cornfield
yard where he
remained extremely
tired and weak, had
stomach cramps, and
broke into a cold
Sweat.

41. The paramedics Albert Depo. EX 2
arrived at cornfield 75:24-76:2.
yard and took plaintiff
ALBERT directly to
the hospital where he
first saw Dr. Khan.

42.

44.

34a

Defendant SOUTH-
ERN PACIFIC’s use of
the forklift called Big
Red No. 3 on March
28, 1991, as ordered by
SOUTHERN PACIFIC
foreman John Juarez,
created a dangerous
condition in plaintiff
BERTRAND E.
ALBERT’s assigned
workplace.

Instead of having
plaintiff ALBERT 16-
pound sledgehammer
to the point of having
a heart attack,
SOUTHERN PACIFIC
could have burned
out the old draft gear
replaced it with a new
one, but this pro-
cedure would have
taken two hours or
more.

Instead of having
plaintiff ALBERT 16-
pound sledgehammer
to the point of having
a heart attack,
SOUTHERN PACIFIC
could have positioned
the railcar needing
rapid repair where a
rabbit or an engine
could have been

Cain depo. EX 4 36:7-16.

Albert Depo. EX 2 59:5-9 &
17-19, 60:1-2, 77:16-19 &
78:2-7.

Albert Depo. EX 2 76:13-17
& 77:8-15.

35a

brought in to com-
press the old draft
gear to ease the cross-
key movements.

45. Defendant SOUTH- Cain Depo. EX 4 35:20-25 &
ERN PACIFIC should 27:17-25; Declaration of
have provided plain- Bertrand E. Albert.

| tiff BERTRAND E.

ALBERT with a func-

tional hydraulic jack

3 on March 28, 1991,

with which to com-

press the draft gear; it

did not.

46. Despite seeing plain- Albert Depo. EX 2 9:14-16,
tiff ALBERT 16-pound 66:16-67:6 & 71:1-3; Juarez
sledgehammering Depo. EX 3 42:11-13.
rapidly and repeat-
edly under the hot
sun to get the “hot
car” repaired before
the switch engine
arrived, SOUTHERN
PACIFIC foreman
John Juarez did not
Order plaintiff
ALBERT, who has
only a sixth-grade for-
mal education, to slow
down or use an easier
way.

re a

a ae Sens

a

47. Physical exertion Khan Depo. EX 1
under the hot sun 73:18-74:5.
increases the risk of
myocardial infarction.

36a

returned to work at & 80:14-81:1.
the same job at corn-
field yard three
months after his heart

|
48. Plaintiff ALBERT Albert Depo. EX 2 78:22-24 |

attack.
FURTHER DISPUTED CONFLICTING
FACTS: EVIDENCE:

49. Whether, under the
circumstances of this
case, SOUTHERN
PACIFIC TRANSPOR-
TATION CO.’s con-
duct constitutes
F.E.L.A. negligence.

Facts 1-14 with supporting
evidence versus Facts 1, 2
and 15-48 with supporting
evidence.

MER NORACIN Beit 699 Oh son near. 3 er ema

50. Whether, under the Facts 1-14 with supporting
circumstances of this evidence versus Facts 1, 2
case, SOUTHERN and 15-48 with supporting
PACIFIC TRANSPOR- evidence.
TATION CO.’s F.E.L.A.
negligent conduct |
F.E.L.A. proximately |
caused plaintiff |
BERTRAND E.
ALBERT’s heart
attack.

DATED: October 27, 1992.
Respectfully submitted,

MAGANA, CATHCART &
McCARTHY

By /s/ Brian R. Magafia ~
BRIAN R. MACANA

Attorneys for Plaintiff

i

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1807%3A1. Public record. Not legal advice.