Illinois Central Railroad Company v. Deborah Jackson , 2015 Miss. LEXIS 588 ( 2015 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2014-IA-00814-SCT
ILLINOIS CENTRAL RAILROAD COMPANY
v.
DEBORAH JACKSON, SURVIVING SPOUSE AND
PERSONAL REPRESENTATIVE OF CHARLES D.
JACKSON, JR., DECEASED
DATE OF JUDGMENT: 05/22/2014
TRIAL JUDGE: HON. RICHARD W. MCKENZIE
TRIAL COURT ATTORNEYS: TANYA D. ELLIS
WAYNE DOWDY
COURT FROM WHICH APPEALED: PIKE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: THOMAS BENTON YORK
TANYA D. ELLIS
ATTORNEYS FOR APPELLEE: WAYNE DOWDY
DUNBAR DOWDY WATT
NATURE OF THE CASE: CIVIL - WRONGFUL DEATH
DISPOSITION: REVERSED AND RENDERED - 12/10/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
DICKINSON, PRESIDING JUSTICE, FOR THE COURT:
¶1. Deborah Jackson sued Illinois Central Railroad Company (“Illinois Central”) under
the Federal Employers’ Liability Act (FELA) for the wrongful death of her husband, Charles
Jackson. Jackson alleged that her husband’s death from lung cancer was caused by his
exposure to asbestos while working for the railroad. After the close of discovery, Illinois
Central filed a motion for summary judgment and a motion to strike Jackson’s expert,
Michael J. Ellenbecker. Later, Illinois Central moved to strike improper evidence from
Jackson’s response to the motion for summary judgment. When Jackson attempted to
supplement Ellenbecker’s designation at the summary-judgment hearing, Illinois Central
moved ore tenus to strike the supplementation.
¶2. The Circuit Court of Pike County denied all of Illinois Central’s motions. This Court
granted Illinois Central’s petition for an interlocutory appeal. We find that Jackson’s expert
designation of Ellenbecker was improper summary-judgment evidence because it was not
sworn to upon personal knowledge and constituted inadmissible hearsay. Because the
supplemental response was unsworn and never was filed, it also was improper summary-
judgment evidence. And, because Jackson cannot show a genuine issue of material fact
without Ellenbecker’s testimony, we reverse the denial of summary judgment and render
judgment in favor of Illinois Central.
FACTS
¶3. Jackson filed the complaint on August 15, 2012. She alleged that Charles worked for
Illinois Central from 1974 until 1982, and his primary duties were as a carman at the
railroad’s car shops in McComb. She alleged that Charles developed lung cancer and died
as the result of having been exposed to asbestos at Illinois Central.1
¶4. On September 14, 2012, Illinois Central served Jackson’s counsel with its first set of
interrogatories and requests for production of documents. Illinois Central requested
disclosure of the experts Jackson expected to call and the substance of each expert’s
opinions. In her answer to interrogatories on January 30, 2013, Jackson named Dr. Barry
1
According to Jackson’s interrogatory answers, Charles was diagnosed with lung
cancer on August 21, 2009, and he died on October 29, 2010.
2
Whites as a potential expert and stated that the answer would be supplemented. A scheduling
order dated July 22, 2013, directed that discovery be completed by January 31, 2014, and set
July 21, 2014, as the trial date. On August 30, 2013, Jackson designated Ellenbecker as an
expert and provided a summary of his testimony. In the designation, Jackson provided a
description of Ellenbecker’s general testimony about railroad employees’ exposure to
asbestos as the result of employer negligence. Copied into the designation was a report by
Ellenbecker stating that the report was general information and did not apply to a particular
worker. Jackson’s counsel signed the designation of Ellenbecker. On September 6, 2013,
Jackson filed the designation of Dr. Whites, also signed by Jackson’s counsel. This
designation stated that Dr. Whites would testify about how asbestos contributes to lung
disease.
¶5. Illinois Central moved to strike Ellenbecker’s designation on March 18, 2014. Illinois
Central argued that Ellenbecker’s testimony should be excluded because Jackson had failed
to disclose the substance of Ellenbecker’s opinions, to produce any report specific to Charles,
or to make Ellenbecker available for deposition. Illinois Central complained that
Ellenbecker’s designation was incomplete because the designation contained Ellenbecker’s
statement that his report was not meant to address the specific exposures of any particular
railroad worker. Illinois Central argued that, because Jackson had failed to seasonably
supplement the incomplete designation, Ellenbecker’s testimony must be excluded.
¶6. On the same day, Illinois Central moved for summary judgment on the ground that
Jackson could present no evidence that Charles had been exposed to asbestos while employed
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by Illinois Central. Jackson filed a response to the motion for summary judgment with
attached excerpts of the deposition of Dr. Whites, deposition excerpts of two former Illinois
Central employees who had worked with Charles, and the designation of Ellenbecker. Illinois
Central filed a reply on May 12, 2014, arguing that summary judgment should be granted
because the Ellenbecker designation and a report by Dr. Whites were unsworn, factually
unsupported hearsay. Illinois Central also argued that Jackson had no proof of exposure
because Charles’s co-workers had admitted in their depositions that they did not know if
Charles had been exposed to asbestos at work. The same day, Illinois Central moved to strike
the Ellenbecker designation and Dr. Whites’s report from Jackson’s summary judgment
response,2 arguing that both pieces of evidence were unsworn, not based upon personal
knowledge, and constituted inadmissible hearsay.
¶7. The trial court heard arguments on the motions filed by Illinois Central on May 20,
2014. Illinois Central repeated its arguments that Ellenbecker’s expert designation should be
struck because it had not been seasonably supplemented with information specific to Charles.
Illinois Central also argued that Dr. Whites’s report and the Ellenbecker designation were
improper summary-judgment evidence and should be struck from the summary-judgment
record.
2
The “Dr. Whites report” is a letter from Dr. Whites to Jackson’s counsel opining
that “there is a direct link of asbestos exposure to [Charles’s] development of lung cancer.”
Illinois Central attached Dr. Whites’s report to its motion for summary judgment. But
Jackson did not attach Dr. Whites’s report to its response to the motion for summary
judgment. Thus, Illinois Central’s motion actually asked the trial court to strike evidence
from the summary-judgment briefing that Illinois Central, not Jackson, submitted.
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¶8. In response, Jackson’s counsel averred that Illinois Central had been provided with
a supplemental response to Ellenbecker’s designation on May 2, 2014. However, this
supplemental response never was filed. Jackson’s counsel then read from and described the
supplemental response:
[Ellenbecker] visited the McComb I.C. car shops in 1995, and on one other
occasion. He knows about asbestos abatement efforts by Illinois Central that
were conducted in years after the shops were closed. When he was in the
McComb shops, he says, as he said in numerous other cases where they were
defending the Railroad, he observed evidence of recent abatement. He
inspected the car shop where [Charles] worked, and where these other four
men who were deposed in January worked. He observed brake shoes. And he
has already given testimony many times, and at other times, that the
application of brakes to the railroad cars caused exposure to asbestos. He
observed equipment with frayed insulation on pipe. And he will testify at this
trial and as is set forth in this interrogatory response . . . that while he was
down in the McComb shop he observed frayed insulation on pipe with
asbestos-containing insulation used as pipe wrap. He has testified, and here,
very damaged, deteriorated conditions of asbestos wrapping around the pipes.
He has photographed the shops in the McComb facility. He observed the box
cars that were sealed inside the shop. He observed and photographed bags
labeled asbestos disposal bags.
...
He is aware of the participation of Illinois Central officers and agents in
meetings where they discussed industrial hygiene and, particularly, asbestos
and asbestos exposure. He has testified, and we know he’s going to testify in
this case, as we state, that these documents indicate significant knowledge by
Illinois Central about use of asbestos going all the way back to the 1930s . . .
. he says it’s poor industrial hygiene practice for all workers not to be informed
about the hazards of asbestos exposure. He is familiar with the documents that
communicated to superintendents of the various Illinois Central shops the
concerns about asbestos exposure. But their – testimony of the four gentlemen
who were deposed in January indicates that there were no signs, none of them
ever knew anything about asbestos exposure until the asbestos abatement
programs were done in the 1990s, well after the McComb shops were closed
and well after the time when these men left the employment of Illinois Central.
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Jackson’s counsel also read Ellenbecker’s opinions about the warnings and remedial
measures that Illinois Central should have taken to protect Charles from asbestos-caused
harm. He stated that Ellenbecker would testify that Jackson had been exposed to
unreasonably high levels of asbestos while working for Illinois Central.
¶9. Jackson’s counsel argued that the coworkers’ testimony, Dr. Whites’s testimony, and
the supplemental response of Ellenbecker created genuine issues of material fact that
Charles’s death was caused by asbestos exposure at the McComb shops. Illinois Central
responded that the supplemental response was provided three months after discovery closed.
Illinois Central orally moved to strike the supplemental response because it was untimely,
without explanation, and without leave of court. Counsel for Illinois Central also moved to
strike the supplemental response from the record because it was not competent summary-
judgment evidence in that it was “not a sworn statement from Ellenbecker,” and it was
simply “hearsay, prepared and written by an attorney.”
¶10. On May 22, 2014, the trial court denied Illinois Central’s motion for summary
judgment and the motion to strike improper summary-judgment evidence. On June 2, 2014,
the trial court denied Illinois Central’s motion to exclude Ellenbecker as Jackson’s expert
witness.
DISCUSSION
I. DID THE TRIAL COURT ABUSE ITS DISCRETION BY
DENYING THE MOTION TO STRIKE IMPROPER
SUMMARY-JUDGMENT EVIDENCE?
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¶11. Illinois Central filed a motion to strike Ellenbecker’s designation and Dr. Whites’s
report from Jackson’s summary-judgment briefing. Illinois Central argued that the unsworn
expert designation and report constituted hearsay and were not proper summary-judgment
evidence. The trial court denied the motion to strike. Illinois Central renews its arguments
on appeal.
¶12. Under our rules of civil procedure, a party against whom a claim is asserted may
“move with or without supporting affidavits for a summary judgment in his favor.” M.R.C.P.
56(b). The trial court shall grant the motion “if the pleadings, depositions, answers to
interrogatories and admissions on file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving party is entitled to a judgment
as a matter of law.” M.R.C.P. 56(c). Other than undenied allegations in the party’s pleadings
and Rule 36 admissions, all material submitted in opposition to summary judgment must be
sworn. Magee v. Transcontinental Gas Pipe Corp., 551 So. 2d 182, 186 (Miss. 1989). This
includes, but is not limited to, depositions, answers to interrogatories, and affidavits. Id.
These materials must be sworn, made upon personal knowledge, and show that the party
giving them is competent to testify. Id.; see M.R.C.P. 56(e).
¶13. Jackson’s designation of Ellenbecker set out Ellenbecker’s opinions about asbestos
in the railroad industry. But it was sworn to and signed by Jackson, not Ellenbecker.
Therefore, as Illinois Central argues, the designation was unsworn and not based upon
Ellenbecker’s personal knowledge. And when a party files her own sworn statement of what
an expert witness will say, offered for its truth, the statement is hearsay and is incompetent
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to support or oppose summary judgment. Walker v. Skiwski, 529 So. 2d 184, 187 (Miss.
1988); M.R.E. 801(c). In Walker, a parent who alleged that a physician had botched his son’s
circumcision filed his own sworn interrogatory answers listing five physicians who would
testify to Dr. Skiwski’s negligence. Id. Walker provided no sworn testimony by any of the
five physicians. Id. This Court held that Walker’s interrogatory answer stating what the
physicians would say, sworn to by Walker himself, constituted pure hearsay and was
incompetent summary-judgment evidence. Id.
¶14. The basis of the rule in Walker is that summary-judgment evidence must be
admissible at trial. Trustmark Nat’l Bank v. Meador, 81 So. 3d 1112, 1118 (Miss. 2012).
To be exact, the content of summary-judgment evidence must be admissible at trial although
the evidence may be in a form, such as an affidavit, that would not be admissible. Jeffrey
Jackson, Mississippi Civil Procedure §11:22 (2009). Thus, hearsay statements that would not
be admissible at trial are incompetent to support or oppose summary judgment. Harris ex rel.
Harris v. Pontotoc Cty. Sch. Dist., 635 F.3d 685, 692 (5th Cir. 2011). Here, Jackson swore
that Ellenbecker would offer various opinions at trial about asbestos in the railroad industry.
These opinions constituted inadmissible hearsay because they were offered for their truth and
meet no hearsay exception. M.R.E. 801(c); M.R.E. 803. Therefore, Ellenbecker’s opinions
in the designation were incompetent to oppose summary judgment, and the trial court erred
by denying the motion to strike.
¶15. Illinois Central also argues that Dr. Whites’s report should have been struck from the
summary-judgment briefing because it, too, was unsworn. As previously noted, “Dr.
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Whites’s report” was a letter from Dr. Whites to Jackson’s counsel opining that “there is a
direct link of asbestos exposure to [Charles’s] development of lung cancer.” Illinois Central
introduced Dr. Whites’s report into the summary-judgment briefing by including it in its
motion for summary judgment. Jackson did not include the report in her response opposing
summary judgment. Instead, Jackson relied upon Dr. Whites’s sworn deposition testimony.
By arguing that Dr. Whites’s report should be struck from the summary-judgment briefing,
Illinois Central asks this Court to strike evidence that Illinois Central, not Jackson, submitted.
“An appellant cannot complain on appeal of alleged errors which he invited or induced.”
HWCC-Tunica, Inc. v. Jenkins, 907 So. 2d 941, 942 (Miss. 2005) (quoting Busick v. St.
John, 856 So. 2d 304, 315 (Miss. 2003)). This issue is without merit.
II. DID THE TRIAL COURT ERR BY DENYING ILLINOIS
CENTRAL’S MOTION FOR SUMMARY JUDGMENT?
¶16. This Court applies de novo review to the grant or denial of a motion for summary
judgment. Serv. Cos. Inc. v. Estate of Mautrice Vaughn, 169 So. 3d 875, 878 (Miss. 2015).
A party is entitled to summary judgment “if the pleadings, depositions, answers to
interrogatories and admissions on file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving party is entitled to a judgment
as a matter of law.” M.R.C.P. 56(c). The moving party bears the burden of demonstrating the
absence of a genuine issue of material fact. Hosemann v. Harris, 163 So. 3d 263, 267 (Miss.
2015). We consider the evidence in the light most favorable to the nonmoving party. Id.
¶17. Federal standards govern the determination of whether a FELA case survives a motion
for summary judgment. Illinois Cent. R. Co. v. Brent, 133 So. 3d 760, 767-68 (Miss. 2013).
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FELA imposes a duty upon a railroad to provide a reasonably safe workplace. Peyton v. St.
Louis Sw. R. Co., 962 F.2d 832, 833 (8th Cir. 1992). The statute provides, in pertinent part:
Every common carrier by railroad while engaging in commerce . . . shall be
liable in damages to any person suffering injury while he is employed by such
carrier in such commerce, or, in case of the death of such employee, to his or
her personal representative . . . for such injury or death 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.
45 U.S.C. § 51 (2012). A plaintiff proceeding under FELA must prove the traditional
common-law elements of negligence, including duty, breach, causation, and foreseeability.
Brent, 133 So. 3d at 775 (citing Robert v. Consol. Rail Corp., 832 F.2d 3, 6 (1st Cir. 1987)).
And “[t]he quantum of evidence required to establish liability in a FELA case is much less
than in an ordinary negligence action.” Brent, 133 So. 3d at 768 (quoting Harbin v.
Burlington N. R. Co., 921 F.2d 129, 131 (7th Cir. 1990)). This relaxed burden of proof in
FELA cases protects the plaintiff’s right to a jury trial, and summary judgment is appropriate
only upon a “complete absence of probative facts” supporting the plaintiff’s claim. Brent,
133 So. 3d at 768 (citing Rivera v. Union Pac. R. Co., 378 F.3d 502, 503 (5th Cir. 2004)).
But the plaintiff must present “more than a mere ‘scintilla of evidence” to prevail. Brent, 133
So. 3d at 768.
¶18. Jackson alleged that Illinois Central breached its duty to provide Charles with a
reasonably safe workplace by exposing him to asbestos, causing his eventual development
of lung cancer. Illinois Central argues that, even under the liberal FELA burden of proof, the
summary-judgment evidence was insufficient to create a genuine issue of material fact that
10
Charles was exposed to asbestos at the McComb shops. Most of the evidence of exposure
in this case came from the expert designation and supplemental response of Ellenbecker. But
this Court has found that Ellenbecker’s unsworn opinions in the expert designation cannot
be considered because they constituted inadmissible hearsay. Jackson served a supplemental
response containing Ellenbecker’s unsworn opinions that Charles had been exposed to
asbestos at the McComb shops. Not only was this supplemental response also unsworn,
inadmissible hearsay, but it was never filed in the record, rendering it incompetent for
consideration on summary judgment. This Court has held that Rule 56(c) requires materials
considered on summary judgment to be “on file.” Lawrence v. Lawrence, 956 So. 2d 251,
257 (Miss. 2006). “Rule 56(c) requires that all matters upon which a party or the court may
rely must be filed with the clerk and served on the other party prior to the hearing.” Id. “It
is certainly contrary to Rule 56(c) for the [trial court] to consider documents that are not on
file prior to the hearing on the motion.” Id. Therefore, the supplemental response could not
be considered in opposition to summary judgment.
¶19. The remaining evidence included Dr. Whites’s opinion that Charles’s lung cancer was
caused by his exposure to asbestos and the depositions of Charles’s coworkers about the
conditions at the McComb shops. Because Dr. Whites admitted in his deposition that his
knowledge of Charles’s asbestos exposure was based entirely on what he was told by
Charles’s attorneys, Dr. Whites’s testimony does not create a genuine issue as to whether
Charles was exposed to asbestos at the McComb shops. In their depositions, three of
Charles’s coworkers described dusty conditions at the McComb shops, and two disclaimed
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any knowledge of asbestos at the site. Kenneth Ray Jennings stated that he had no personal
knowledge of asbestos exposure while working for Illinois Central. Douglas Reese said he
had never heard the term “asbestos” while working for the railroad. Isaac Shaw stated that
he “was told” that brown putty used to seal holes in plywood contained asbestos.
Specifically, he testified that “they said it was supposed to have been had asbestos in it . . .
Now, I don’t know if it had asbestos in it, but I was told it had asbestos in it. But me
knowing, I don’t know.” He did not identify who had told him the putty contained asbestos
and did not know the name of the putty product.
¶20. Shaw’s testimony was insufficient to create a genuine issue as to Charles’s asbestos
exposure because he had no personal knowledge that the putty used at the McComb shops
contained asbestos. Under Mississippi Rule of Evidence 602, “[a] witness may not testify to
a matter unless evidence is introduced sufficient to support a finding that he has personal
knowledge of the matter.” M.R.E. 602. The witness’s own testimony may be sufficient to
prove personal knowledge. M.R.E. 602. But Shaw’s testimony falls woefully short of this
standard. Shaw testified that he was “told” that the putty contained asbestos, and he admitted
he did not know if it contained asbestos. Shaw’s testimony demonstrates that he had no
personal knowledge of whether the putty contained asbestos. See Goldman v.
Johns-Manville Sales Corp., 514 N.E.2d 691, 695 (1987) (the court held that a bakery
worker who was told that insulating board and pipe insulation contained asbestos lacked
personal knowledge of the presence of asbestos).
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¶21. Viewing the evidence in the light most favorable to Jackson, the evidence did not
create a genuine issue of material fact that Illinois Central breached its duty of care by
exposing Charles to asbestos at the McComb shops. Jackson lacks even a mere scintilla of
evidence of exposure, and there is a complete absence of probative facts supporting her
claim. See Brent, 133 So. 3d at 768. Therefore, we reverse the trial court’s order denying
summary judgment and we render judgment in favor of Illinois Central.
¶22. Illinois Central also argues that the trial court should have struck Ellenbecker’s
testimony as a discovery sanction for Jackson’s failure to submit a complete response to
Illinois Central’s discovery requests and because its supplementation of Ellenbecker’s
designation was untimely. Because we have found that the Ellenbecker designation and
supplemental response both were improper summary-judgment evidence, and because we
reverse the denial of summary judgment, we do not address this issue.
CONCLUSION
¶23. Because the opinions in the Ellenbecker designation constituted inadmissible hearsay,
the trial court erred by failing to strike the designation from the summary-judgment evidence.
The supplemental response also was improper summary-judgment evidence because it
constituted inadmissible hearsay, and it was not filed in the record. Due to the absence of
evidence creating a genuine issue of material fact on the elements of Jackson’s FELA claim,
we reverse the denial of summary judgment and render judgment in favor of Illinois Central.
¶24. REVERSED AND RENDERED.
WALLER, C.J., LAMAR, KITCHENS, PIERCE, KING AND COLEMAN, JJ.,
CONCUR. RANDOLPH, P.J., NOT PARTICIPATING.
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