Bahus v. Union Pacific R.R. Co.

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Appellate Court Date: 2019.10.07
16:45:36 -05'00'
Bahus v. Union Pacific R.R. Co., 2019 IL App (1st) 180722
Appellate Court WILLIAM BAHUS, Plaintiff-Appellant, v. UNION PACIFIC
Caption RAILROAD COMPANY, Defendant-Appellee.
District & No. First District, Fourth Division
Docket No. 1-18-0722
Filed June 28, 2019
Decision Under Appeal from the Circuit Court of Cook County, No. 16-L-1806; the
Review Hon. Marcia Maras, Judge, presiding.
Judgment Affirmed.
Counsel on John S. Bishof Jr., of Law Office of John Bishof, P.C., of Chicago, for
Appeal appellant.
J. Timothy Eaton and Jonathan B. Amarilio, of Taft Stettinius &
Hollister LLP, and Thomas A.P. Hayden and Brody E. Dawson, all of
Chicago, for appellee.
Panel JUSTICE BURKE delivered the judgment of the court, with opinion.
Presiding Justice McBride and Justice Reyes concurred in the
judgment and opinion.
OPINION
¶1 Plaintiff William Bahus appeals the circuit court’s order granting summary judgment to
defendant, Union Pacific Railroad Company (Union Pacific), on his claim seeking to recover
for a workplace injury he suffered. For the reasons that follow, we affirm the circuit court’s
judgment.
¶2 I. BACKGROUND
¶3 A. The Complaint
¶4 Bahus filed his complaint under the Federal Employers’ Liability Act (FELA) (45 U.S.C.
§ 51 et seq. (2012)), alleging that on February 17, 2014, he injured his left knee while kneeling
to perform maintenance on a “GURU” valve on a Union Pacific locomotive engine. Bahus
alleged that, after kneeling on a walkway to reset and reinsert the GURU valve, he felt pain in
his left knee when he stood up. Bahus alleged that, as a result of Union Pacific’s negligence,
he sustained serious and permanent injuries to his left knee, including a lateral meniscus tear
and aggravation of a preexisting condition. Specifically, Bahus alleged that Union Pacific was
negligent in that
“a. Defendant negligently failed to provide Plaintiff with a reasonably safe place to
work;
b. Defendant replaced electric valves with guru valves which require employees to
kneel in awkward positions when re-setting and re-arming the plug of the valve. The
electric valve does not require a manual re-setting and re-arming of the plug of that
valve and thus does not require the defendant’s employees to place themselves in
awkward positions;
c. In negligently creating and permitting dangerous and hazardous conditions to
exist;
d. Other acts of negligence.”
¶5 Following discovery, Union Pacific filed a motion for summary judgment pursuant to
section 2-1005(c) of the Code of Civil Procedure (735 ILCS 5/2-1005(c) (West 2016)). Each
party attached several exhibits to their filings, which we summarize in pertinent part below.
¶6 B. Factual Background
¶7 Bahus testified in his deposition that he began working as a machinist in 1994 for a railway
company subsequently purchased by Union Pacific. On February 17, 2014, he was working as
a machinist/mechanic for Union Pacific. He was assigned to work on locomotives at the
Indiana Harbor Belt Railway. Bahus testified that it was a “pretty typical winter day” and
several locomotives had arrived overnight “dead and drained,” meaning they were not running
and the water in the engines’ cooling systems had drained out of the engines.
¶8 Bahus explained that, when the outside temperature is cold and the water in the engine
reaches approximately 38 degrees, the GURU valve opens and the water drains out of the
engine and associated components before it can turn to ice and cause freeze damage. Bahus’s
job was to reset the GURU valves after they opened. He accessed the GURU valves through
the engine access door. He had to kneel down and then reach out approximately 3 feet and
down approximately 18 inches. He first cleaned the GURU cartridge and the valve body to
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remove any ice, then reinserted the cartridge by pushing it in and twisting. The reinsertion
process took 5 to 20 minutes. The GURU valve had to be positioned facing straight down or
at a 45-degree angle to allow water to drain out. However, Bahus testified that, if the valve was
angled 45-degrees away from him, it was difficult to reach it and reinsert it because of the
awkward position he had to be in. Bahus explained that locomotives originally had electric
valves that were easily reset by simply flipping a switch but electric valves would not operate
if the engine batteries were dead. He testified that Union Pacific retrofitted its existing
locomotives with GURU valves, which require nothing other than temperature to operate. He
did not recall if he had ever reported to anyone his belief that reinserting GURU valves was
unsafe.
¶9 He testified that, on the date of the incident, he was working on a GURU valve located on
an air compressor on a locomotive engine for approximately 20 minutes and, when he stood
up, he felt pain in both knees. He initially believed it was from the cold air temperature and
kneeling on the steel walkway. He had already worked on four to seven other GURU valves.
When Bahus warmed up, the pain subsided. Bahus testified that the GURU valve on this
particular engine was “positioned at an awkward spot on the water return line, so it was out
away from the air compressor, more underneath the oil cooler and all the other associated
equipment.” He testified that the GURU valve was also installed facing away from the access
door and there was “no room to install it straight down because there wouldn’t have been a
drop between the pipe and the floor of the locomotive.” He testified that he had to lean forward
while reaching around, through, and under other engine equipment, and line the valve and
cartridge up and reinsert it, but it was so cold outside that “things were icing up almost as
quickly as you took the torch off of it.” He was eventually able to reinsert the valve. He testified
that this was a “one-person job,” as there was physically no room for anyone else to help. When
he stood up, he felt pain in both of his knees. Bahus testified that Union Pacific provides knee
pads, which have a hard plastic surface backed by a soft surface. He testified that the knee pads
are difficult to wear, as they do not fit well around winter layers. He used a kneeling pad
instead, which was a foam pad approximately one inch thick and also provided by Union
Pacific. He was able to finish the three or four remaining hours of his shift. He did not continue
having pain in his knees that day. He went home at the end of the shift but later returned to
check the 8 p.m. train.
¶ 10 The next morning, as he cleaned snow off of his truck, he noticed pain in his left knee, and
he reported the injury to Union Pacific. A nurse evaluated him. She found no traumatic injury,
but Bahus desired to have it evaluated further at the hospital. The emergency physician at the
hospital also found no traumatic injury. Bahus completed an injury report with Union Pacific.
¶ 11 Bahus testified that the next time he received treatment was in November 2014. He testified
that, three weeks after the incident, his job was abolished and he was transitioned to a machinist
job in Joliet and received a pay cut. He was also placed on discipline for failing to timely report
the injury. He was diagnosed with chondromalacia, which he believed means a roughening and
thinning of the cartilage in the joint. He had surgery on his left knee in June 2015. He stopped
working in July 2015.
¶ 12 In addition to deposition testimony, Bahus submitted a video of a locomotive inspection
demonstrating the location of a GURU valve, photographs of GURU valves, installation
instructions printed from the manufacturer ThermOmegaTech, Union Pacific’s Mechanical
Maintenance Instructions (MMI) and Locomotive Maintenance Instructions (LMI) regarding
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the GURU valve, a Mechanical Engineering Newsletter from Union Pacific, and a “MCS task”
sheet from Union Pacific relating to conversion to GURU valves. The ThermOmegaTech
instructions state that the GURU valve should be installed “with its cartridge down or at a 45
[degree] angle *** for best accessibility.” It further states that the valve must be “installed with
a 2.75 inch minimum operating clearance to allow cartridge to pop out.” The MMI, LMI No.
3302, provided instructions to replace the electric valve with the GURU valve. It stated that
“the GURU cartridge is to be facing down at a 45 degree angle from the horizontal” and there
must be a two-inch minimum clearance below the valve to allow the cartridge to fall out. MMI,
LMI No. 3304, provided the same instructions.
¶ 13 Bahus further attached the medical evaluation report of Dr. Chudik, performed on
November 7, 2017. Dr. Chudik opined that “[t]he mechanics of bending, stooping, kneeling
for an extended period of time and rising is a sufficient mechanism to aggravate and accelerate
Mr. Bahus’ knee condition as it did on February 17, 2014.” Dr. Chudik opined that, within a
reasonable degree of medical certainty, Bahus’s condition resulted from the injury sustained
on February 17, 2014.
¶ 14 Tom Kennedy, a project manager for Union Pacific in the mechanic service unit, testified
in his deposition that Union Pacific decided to replace the electric valve with the GURU valve
in order to protect engines from costly freeze damage. Kennedy testified that Union Pacific
has retrofitted almost all of its locomotives with GURU valves and it is the industry standard.
Union Pacific placed the GURU valves in the same location as the electric valves; they must
be placed at the lowest part of the engine cooling system. He testified that the GURU valve is
accessed through the engine access door by reaching down approximately one foot and
reaching out approximately one to two feet and that kneeling pads and knee pads are provided.
Kennedy testified that it takes less than one minute to reinsert the cartridge into the valve and
make a quarter turn and that GURU valve reinsertion could be performed by a machinist,
pipefitter, or service personnel mechanic. He was unaware of any complaints about the position
of GURU valves.
¶ 15 Darek Szydlo, a senior manager of the locomotive department who has worked for Union
Pacific since 1994, testified that he is familiar with the procedure for installing GURU valves,
he has trained employees on installation, and he observes employees install them as part of his
management auditing duties. He testified that there are few, if any, electric valves remaining
because of the risk of freeze damage and Union Pacific transitioned to GURU valves over 10
years ago.
¶ 16 Szydlo testified that he did not believe the GURU valves that were retrofitted onto Union
Pacific’s locomotives were placed in locations that were difficult for employees to reach.
Szydlo testified that the retrofitted GURU valves were generally located in the same area as
the electric valves had been because there were only a “certain number of spots were you can
put the GURU[s] in for them to work properly and drain all the water from the engine, the
associated piping, the radiators, the air compressor basically so the locomotive doesn’t freeze
up or the components freeze up.” He testified that the location of the GURU valve and the
direction it faces is determined by the design of the locomotive. He testified that he has never
found it difficult to install or repair a GURU valve and he has never received any complaints
from an employee regarding the location of a GURU valve. He also has not received
complaints about the kneeling pads Union Pacific provides.
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¶ 17 Szydlo testified that he supervised Bahus in 2014 and had observed him handling GURU
valves. Szydlo testified that Bahus’s position was abolished in 2014 because processes changed
and locomotives were being serviced at a different shop in order to address reliability issues at
Indiana Harbor Belt Railway.
¶ 18 Union Pacific provided the report of William Jacobs of Heartland Rail Services, Inc., in
which Jacobs opined that GURU valves are the industry standard and that it was a reasonably
safe activity to change and service a GURU valve. Union Pacific also provided a report from
engineer George Page in which he opined that the amount of time spent kneeling as a machinist
was minimal, constituting about 1% of the work shift and about 6.5 minutes per GURU valve
replacement, which did not contribute to the risk of knee disorders. He further concluded that
there was no increased risk for knee disorders in replacing GURU valves. Page concluded that
Union Pacific provides a safe work environment and provides knee pads or kneeling pads,
safety training, and other assistance as needed. Union Pacific further submitted a medical
evaluation of Bahus by orthopedic surgeon Dr. Jeffrey Meisles, in which Dr. Meisles
determined that Bahus has osteoarthritis in his left knee, which caused his pain, but this was
not caused or exacerbated by kneeling in cold weather.
¶ 19 C. Motion for Summary Judgment Proceedings
¶ 20 In its motion for summary judgment, Union Pacific argued that Bahus failed to present any
evidence of negligence; that is, Bahus failed to present any evidence that kneeling for twenty
minutes was not reasonably safe and failed to present expert testimony or any evidence that it
was not reasonably safe to require an employee to perform kneeling outdoors as part of his job.
Bahus admitted that he did not complain that his task was unsafe and the decision to utilize
GURU valves was reasonable, safe, and consistent with industry practice.
¶ 21 In response, Bahus argued that, under the FELA, his burden to prove negligence was slight,
and expert testimony was not required. Bahus also asserted that he was not claiming that Union
Pacific could have provided him with a safer method to perform his duties in servicing the
GURU valves. Rather, he argued that Union Pacific could have “provided him with a
reasonably safe place to work by simply installing the GURU valves in a manner so that he
would not be exposed to the unnecessary and unsafe risk of injury.” Bahus argued that Union
Pacific’s “use of GURU valves is not the issue in this case, it’s the location where defendant
placed them that makes repairing and servicing them” unsafe. Bahus asserted that the GURU
valve should be installed 45 degrees facing in toward the engine access door.
¶ 22 In its reply brief, Union Pacific observed that Bahus had raised a new, different claim in
asserting in his response that the negligence related to the placement of the GURU valve. Union
Pacific argued that this new claim was essentially a defective design claim and was therefore
precluded by the Locomotive Inspection Act (LIA) (49 U.S.C. § 20701 et seq. (2012)), which
regulates the design, construction, and equipment selection and installation related to
locomotive equipment. Union Pacific asserted that, in retrofitting locomotives, the GURU
valves were placed in the same position as the previous electric valve and the location of the
valves was determined by the manufacturer, not Union Pacific.
¶ 23 In Bahus’s surreply, he asserted that the LIA requires that the locomotive must be “in use”
at the time of injury but the locomotive on which he was working when he sustained the injury
was not “in use” at the time because it was “dead and drained” when Bahus was assigned to
service and repair it. Additionally, Bahus argued that Union Pacific determined the instructions
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for retrofitting the GURU valves and its failure to position the GURU valves facing down or
at a 45-degree angle toward the access door, instead of away from the access door, made it
difficult and unsafe for an employee to reset or replace the GURU valve.
¶ 24 At the March 9, 2018, hearing on the motion, the circuit court entered summary judgment
in favor of Union Pacific. The court found that Bahus needed expert testimony regarding Union
Pacific’s records and whether the GURU valve placement and installation was consistent with
design standards and reasonably safe. As such, Bahus failed to provide sufficient evidence of
negligence to survive summary judgment. The court additionally held that his claim was
precluded by the LIA. Bahus filed a timely notice of appeal.
¶ 25 II. ANALYSIS
¶ 26 A. Summary Judgment Standard of Review
¶ 27 “Summary judgment is appropriate when ‘the pleadings, depositions, 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.’ ” Shapich v. CIBC
Bank USA, 2018 IL App (1st) 172601, ¶ 16 (quoting 735 ILCS 5/2-1005(c) (West 2016)). We
construe the record strictly against the moving party and liberally in favor of the nonmoving
party. Jordan v. The Kroger Co., 2018 IL App (1st) 180582, ¶ 17. The movant must
demonstrate that some element of the claim must be resolved in his favor or that there is an
absence of evidence supporting the nonmoving party’s claim. Rico Industries, Inc. v. TLC
Group, Inc., 2018 IL App (1st) 172279, ¶ 44. If the movant satisfies this burden, the nonmovant
need not prove his case but must “present some factual basis that would arguably entitle them
to a judgment under the applicable law.” Williams v. Covenant Medical Center, 316 Ill. App.
3d 682, 689 (2000). We review the trial court’s grant of summary judgment de novo. Jordan,
2018 IL App (1st) 180582, ¶ 17. In so doing, we are not bound by the trial court’s reasoning
and may affirm on any basis in the record. Rico Industries, 2018 IL App (1st) 172279, ¶ 44.
¶ 28 B. Whether There Was Sufficient Evidence to Withstand Summary Judgment
¶ 29 Bahus argues on appeal that the circuit court erred in finding that he was required to provide
an expert who could testify that Union Pacific’s placement of the GURU valve was negligent.
He contends that he presented sufficient evidence regarding causation and negligence based
on his own testimony, Dr. Chudik’s opinion, and common sense inferences available to a jury.
¶ 30 Bahus brought his action pursuant to the FELA (45 U.S.C. § 51 et seq. (2012)). “The
purpose of FELA is to provide a remedy to railroad employees for injuries sustained from
railroad accidents.” Hahn v. Union Pacific R.R. Co., 352 Ill. App. 3d 922, 929 (2004). The
FELA provides the exclusive remedy for a railroad employee injured due to his employer’s
negligence. Myers v. Illinois Central R.R. Co., 323 Ill. App. 3d 780, 785 (2001) (citing Wabash
R.R. Co. v. Hayes, 234 U.S. 86, 89 (1914)). The FELA must be liberally construed to effectuate
its purposes. Id.
¶ 31 To establish a negligence claim under the FELA, the plaintiff must prove that “(1) the
defendant is a common carrier; (2) the plaintiff was an employee of the common carrier; (3) the
plaintiff sustained an injury while employed by the common carrier; and (4) the defendant’s
negligence is a cause of the injuries.” Morris v. Union Pacific R.R. Co., 2015 IL App (5th)
140622, ¶ 32 (citing Larson v. CSX Transportation, Inc., 359 Ill. App. 3d 830, 834 (2005)). As
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such, in order “to survive a motion for summary judgment, a plaintiff must offer evidence that
could prove ‘the common law elements of negligence, including duty, breach, foreseeability,
and causation.’ ” Id. ¶ 33 (quoting Williams v. National R.R. Passenger Corp., 161 F.3d 1059,
1061-62 (7th Cir. 1998)).
¶ 32 Accordingly, the basis for liability is “the employer’s negligence, not merely the fact that
an employee is injured on the job.” Myers, 323 Ill. App. 3d at 785. However, “[a] plaintiff’s
burden under FELA is significantly lighter than in a common law negligence case; a railroad
will be held liable where ‘employer negligence played any part, even the slightest, in producing
the injury.’ ” (Emphasis omitted.) Morris, 2015 IL App (5th) 140622, ¶ 33 (quoting Rogers v.
Missouri Pacific R.R. Co., 352 U.S. 500, 506 (1957)); see also Hahn, 352 Ill. App. 3d at 930
(employee must show that the employer’s negligence “played just the slightest part in
producing his injury”). We additionally observe that “the sufficiency of evidence needed to
withstand a motion for summary judgment in a FELA case is controlled by federal, not state,
law.” Morris, 2015 IL App (5th) 140622, ¶ 27.
¶ 33 It is undisputed that Union Pacific, as Bahus’s employer, owed him a duty to provide “a
reasonably safe workplace” under the FELA. Id. ¶ 34. To show a breach of this duty, the
employee “must show circumstances in the workplace that the railroad could have reasonably
foreseen as creating a potential for harm.” Id. ¶ 35 (citing McGinn v. Burlington Northern R.R.
Co., 102 F.3d 295, 300 (7th Cir. 1996)).
¶ 34 In Bahus’s complaint, he alleged that Union Pacific was negligent in replacing electronic
valves with the GURU valves, which required employees to kneel in awkward positions when
reinserting them. However, Bahus presented absolutely no evidence that the decision to switch
from electronic valves to GURU valves was negligent. Indeed, all the evidence, including the
testimony of Kennedy and Szydlo in addition to Jacobs’s report, showed that GURU valves
have become the industry standard.
¶ 35 Additionally, Bahus also failed to present any evidence that requiring its mechanics to
kneel in an “awkward” position constituted a working condition that was not reasonably safe.
In analyzing FELA claims, federal courts have concluded that requiring an employee to
perform a physically difficult task or manual labor does not establish that the work was not
reasonably safe or the employer was negligent, even where other, safer methods were
available. Walker v. Northeast Regional Commuter R.R. Corp., 225 F.3d 895, 897-99 (7th Cir.
2000) (railroad need only use a “reasonably safe method for lifting” heavy blade from floor to
table, which did not require that it configure repair shop so that employee could use a lifting
aid and there was no evidence presented that requiring mechanics to lift blade was not
reasonably safe); see also Deutsch v. Burlington Northern R.R. Co., 983 F.2d 741, 743-44 (7th
Cir. 1992) (employee, who fell while descending ladder after setting the handbrake on top of
a railroad car, presented no evidence that the location of the brake constituted a safety hazard
or that the ladder rungs should have been equipped with a nonskid surface and thus failed to
show existence of a material fact as to negligence).
¶ 36 Here, the testimony of Bahus, Kennedy, and Szydlo, in addition to Page’s report, showed
that mechanics must kneel to reset the valves for only a short period of time, ranging from one
minute up to several minutes, depending on the circumstances, and this constitutes a negligible
portion of the work shift, approximately 1%. Additionally, Union Pacific provided kneeling
pads or knee pads to perform this task, and Bahus has not alleged that this was insufficient to
provide reasonably safe working conditions.
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¶ 37 Bahus subsequently refined his claim in the course of the summary judgment proceedings
to assert that it was Union Pacific’s placement of the GURU valves angled away from the
engine access door that makes servicing them unsafe. He argues he presented sufficient
evidence on this issue based on his own deposition testimony that it was difficult to service a
GURU valve if it was angled away from the engine access door and he was injured while
working on such a valve. He further contends that a safer alternative was available because
Union Pacific could have installed the GURU valves in retrofitted locomotives differently by
facing the valves toward the access door.
¶ 38 That a safer method of accomplishing a task may exist does not necessarily “render the
chosen method unsafe or negligent for purposes of FELA.” McKennon v. CSX Transportation,
Inc., 897 F. Supp. 1024, 1027 (M.D. Tenn. 1995); see Taylor v. Illinois Central R.R. Co., 8
F.3d 584, 586 (7th Cir. 1993) (noting that evidence of a safer alternative was not necessarily
proof of negligence where employee argued that other railroads used allegedly “safer” smaller
ballast rocks); Myrick v. Union Pacific R.R. Co., 2017 IL App (1st) 161023, ¶ 34 (“a plaintiff
cannot attempt to prove the defendant’s negligence by pointing to alternative methods without
first offering some evidence that the method used was negligent”). The key question under
FELA is whether the employer’s prescribed method of performing the work is “reasonably
safe, not whether the employer could have employed a safer alternative method for performing
the task.” McKennon, 897 F. Supp. at 1027.
¶ 39 For example, in McKennon, the employee was injured while using a spike maul to drive a
spike in replacing damaged railroad ties when he injured his shoulder. Id. at 1025-26. The
employee argued, inter alia, that the railroad should have provided a machine to assist in
driving the spikes. Id. at 1026. The court held that “[t]he fact that there may have been an
automated, or safer method, of work does not automatically render the chosen method unsafe
or negligent for purposes of FELA.” Id. at 1027. The court reasoned that the proper inquiry
was whether the prescribed method of work was reasonably safe, not whether a safer
alternative method existed, and the railroad was not negligent in failing to provide an
automated or alternative method for performing the task. Id. Based on the testimony that the
spike maul was not defective, was appropriate for using to drive spikes, and had been used by
plaintiff safely for 20 years, the court found the failure to use a machine did not amount to
negligence and granted summary judgment to the railroad. Id. The court also found the railroad
was not negligent in not providing more employees or younger employees to do the work. Id.
¶ 40 Here, Bahus’s own testimony that he was injured while working on a GURU valve and that
Union Pacific could have installed the valve facing another way did not provide sufficient
evidence of Union Pacific’s negligence to survive summary judgment. Indeed, the evidence
presented by both Bahus and Union Pacific showed that Union Pacific complied with the
manufacturer’s directions in installing the GURU valves and that they were installed in the
same location that the electric valves had been. It is undisputed that the manufacturer’s
installation instructions indicated that the GURU valve should be installed facing down or at a
45-degree angle toward either side. Bahus contends that the fact that Union Pacific was given
discretion to position the GURU valve within those parameters and it placed the valve facing
away from the engine access door on the locomotive on which he was working constitutes
evidence of negligence under the FELA. We disagree. Bahus had not provided any evidence
that Union Pacific negligently breached its obligation to provide a reasonably safe workplace
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or that any negligence by Union Pacific “played any part” in his injury. Morris, 2015 IL App
(5th) 140622, ¶ 33.
¶ 41 Bahus also argues Dr. Chudik’s testimony provided evidence that the position he was
required to be in to reinsert the GURU valve was unsafe. However, a close examination of Dr.
Chudik’s medical evaluation report of Bahus reveals that Dr. Chudik opined that “[t]he
mechanics of bending, stooping, kneeling for an extended period of time and rising is a
sufficient mechanism to aggravate and accelerate Mr. Bahus’s knee condition as it did on
February 17, 2014.” Dr. Chudik opined that, within a reasonable degree of medical certainty,
Bahus’s condition resulted from the injury sustained on February 17, 2014. Dr. Chudik’s report
did not state that Union Pacific’s placement of the GURU valve caused his injury or placed
Bahus in an unsafe position when servicing it. The report also did not establish that kneeling
constitutes an unsafe workplace activity. While Dr. Chudik’s opinion may provide evidence of
causation, the mere fact that Bahus was injured while performing the GURU valve reinsertion
task does not show that Union Pacific breached its duty to provide a reasonably safe workplace.
¶ 42 Relatedly, Bahus contends that he was not required to provide an expert to testify, as the
placement of the GURU valve was an issue that could be understood by laypersons.
¶ 43 Courts have “consistently rejected [the] position” that expert testimony is required to
survive a motion for summary judgment on a FELA claim. Lynch v. Northeast Regional
Commuter R.R. Corp., 700 F.3d 906, 913-15, 918-19 (7th Cir. 2012) (no expert testimony
needed regarding causal connection between improper installation of top rail of fence that fell
and struck plaintiff, as a layperson could easily understand the connection and the plaintiff
presented evidence that a properly cut and installed rail should not fall). “[U]nder FELA,
circumstantial evidence alone can support a jury verdict, and expert testimony is unnecessary
where the matter is within the realm of lay understanding and common knowledge.” Id. at 914;
see Harbin v. Burlington Northern R.R. Co., 921 F.2d 129, 129-32 (7th Cir. 1990) (expert
testimony regarding air quality in roundhouse was not required where evidence showed that
there was no ventilation system, locomotives created exhaust fumes, the plaintiff was required
to clean inside the boilers yearly, creating additional clouds of soot, and a doctor testified that
inhalation of particulate matter could stress the heart and precipitate a heart attack, as jury
could reasonably infer that employer’s failure to take other precautions was negligent).
¶ 44 On the other hand, expert testimony in FELA cases is required “when conclusions as to the
evidence cannot be reached based on the everyday experiences of jurors, making expert
testimony necessary to evaluate the issue.” Huffman v. Union Pacific R.R., 675 F.3d 412, 419,
426 (5th Cir. 2012) (insufficient evidence of causation where the employee’s injury or
condition was never specifically identified as one of the conditions that could result when work
was not performed properly). For example, in Myers v. Illinois Central R.R. Co., the Seventh
Circuit Court of Appeals observed that “when there is no obvious origin to an injury and it has
multiple potential etiologies, expert testimony is necessary to establish causation.” (Internal
quotation marks omitted.) Myers v. Illinois Central R.R. Co., 629 F.3d 639, 643 (7th Cir. 2010)
(expert testimony was required where neither the plaintiff nor his doctors could point to a
specific event, employee claimed injuries resulted from years of working for the railroad, and
such “cumulative trauma injuries” involved gradual deterioration resulting in numerous
disorders caused by repetitive work over time such that causation is not obvious to a layperson).
¶ 45 We find that, while a layperson could understand the connection between kneeling and
injuring a knee, any negligence involving the installation and positioning of the GURU valves
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would not be so obvious. Although Bahus contends that his own testimony about reinserting
the GURU valve was sufficient to establish negligence, even his counsel conceded the
complexities of the issue at the hearing on the motion for summary judgment. When the circuit
court inquired what evidence he had that installation of the GURU valve was negligent, counsel
responded that he had Union Pacific’s engine repair records but they were “very difficult to
read.” Considering the evidence presented of Union Pacific’s maintenance records, LMIs
providing instructions about the GURU valve, the manufacturer’s instructions about the
GURU valve, and the evidence presented about the precise placement of the GURU valve
along the engine pipes to ensure proper functioning, we agree with the circuit court’s finding.
¶ 46 Union Pacific contends that Bahus failed to present any evidence that the injury was
reasonably foreseeable. A FELA plaintiff “must show circumstances in the workplace that the
railroad could have reasonably foreseen as creating a potential for harm.” Morris, 2015 IL App
(5th) 140622, ¶ 35 (citing McGinn, 102 F.3d at 300). “ ‘[R]easonable foreseeability of harm’
*** is indeed ‘an essential ingredient of [FELA] negligence.’ ” (Emphasis omitted.) CSX
Transportation, Inc. v. McBride, 564 U.S. 685, 703 (2011) (quoting Gallick v. Baltimore &
Ohio R.R. Co., 372 U.S. 108, 117 (1963)).
¶ 47 Our review of the record reveals that Bahus has not presented any evidence showing that
Union Pacific could reasonably have foreseen that resetting the GURU valves was dangerous
in the manner Bahus alleges or that the placement of the GURU valves was not reasonably
safe. Here, Bahus conceded that he never made a similar complaint prior to filing his lawsuit.
Szydlo and Kennedy testified that they had never received or heard of any complaints regarding
the placement of the valves or any hazards in resetting them. Union Pacific presented
undisputed evidence that GURU valves became the industry standard and replaced electric
valves over a decade ago. The evidence presented also demonstrates, without contradiction,
that Union Pacific retrofitted its locomotives with GURU valves in accordance with the
manufacturer’s instructions. Accordingly, there was no evidence that Union Pacific had any
prior notice of problems with the placement or servicing of the GURU valves or that it could
have reasonably foreseen a potential for harm.
¶ 48 C. Preclusion by the Locomotive Inspection Act
¶ 49 In his other issue on appeal, Bahus contends that the circuit court erred in finding that his
claim under the FELA is precluded by the LIA.
¶ 50 Where two federal statutes “address the same subject matter, one may implicitly repeal the
other, resulting in a ‘preclusion’ analysis.” Grogg v. CSX Transportation, Inc., 659 F. Supp.
2d 998, 1011 (N.D. Ind. 2009). Preclusion occurs where there is either an “irreconcilable
conflict between the statutes or a clearly expressed legislative decision that one replace the
other.” Randolph v. IMBS, Inc., 368 F.3d 726, 730 (7th Cir. 2004). Although preemption case
law “does not govern preclusion analysis ***, its principles are instructive insofar as they are
designed to assess the interaction of laws that bear on the same subject.” POM Wonderful LLC
v. Coca-Cola Co., 573 U.S. ___, ___, 134 S. Ct. 2228, 2236 (2014).
¶ 51 As noted, the FELA is a general negligence statute, which “neither prohibits nor requires
specific conduct by a railroad.” Waymire v. Norfolk & Western Ry. Co., 218 F.3d 773, 775 (7th
Cir. 2000). By contrast, the purpose of the LIA is “the protection of employees and others by
requiring the use of safe equipment,” and it must be liberally construed to that end. Lilly v.
Grand Trunk Western R.R. Co., 317 U.S. 481, 486 (1943). The LIA provides, in relevant part,
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that “[a] railroad carrier may use or allow to be used a locomotive or tender on its railroad line
only when the locomotive or tender and its parts and appurtenances—(1) are in proper
condition and safe to operate without unnecessary danger of personal injury.” 49 U.S.C.
§ 20701 (2012). The LIA “does not create a right to sue but merely establishes a safety
standard, the failure to comply with that standard is negligence per se under the FELA.” Coffey
v. Northeast Illinois Regional Commuter R.R. Corp. (METRA), 479 F.3d 472, 477 (7th Cir.
2007). A rail carrier can violate the LIA in two ways: “A rail carrier may breach the broad duty
to keep all parts and appurtenances of its locomotives in proper condition and safe to operate
without unnecessary peril to life or limb, in violation of 45 U.S.C. § 23, or a rail carrier may
fail to comply with the regulations issued by the [Federal Railroad Administration].” McGinn,
102 F.3d at 299.
¶ 52 The United States Supreme Court has stated that the power delegated by the LIA is a
general one, which “extends to the design, the construction and the material of every part of
the locomotive and tender and of all appurtenances.” Napier v. Atlanta Coast Line R.R. Co.,
272 U.S. 605, 611 (1926). In enacting the LIA, Congress “manifest[ed] the intention to occupy
the entire field of regulating locomotive equipment.” Id. In enacting the LIA, the goal was to
“ ‘prevent the paralyzing effect on railroads from prescription by each state of the safety
devices obligatory on locomotives that would pass through many of them.’ ” Kurns v. A.W.
Chesterton Inc., 620 F.3d 392, 398 (3d Cir. 2010) (quoting Oglesby v. Delaware & Hudson
Ry. Co., 180 F.3d 458, 461 (2d Cir. 1999)). As such, “the LIA preempts a broad field relating
to the health and safety of railroad workers, including requirements governing the design and
construction of locomotives, as well as equipment selection and installation.” Id. at 397.
¶ 53 Union Pacific contends that Bahus’s claim is really a claim of defective design, which is
precluded by the LIA. Union Pacific argues that, although a claim under federal law (FELA)
and not state law is involved here, the weight of federal authority supports that Bahus’s FELA
claim is precluded by the LIA.
¶ 54 Bahus argues that he is not raising a defective design claim but, rather, arguing that Union
Pacific’s decision to place the GURU valve facing away from him constituted negligence. He
further asserts that more recent federal case law dictates that his claim is not precluded by the
LIA.
¶ 55 Union Pacific relies heavily on Waymire, 218 F.3d at 776-77, wherein the Seventh Circuit
Court of Appeals determined that negligence claims under the FELA that are directly covered
by an act similar to the LIA, the Federal Railroad Safety Authorization Act of 1994 (FRSA)
(49 U.S.C. § 20101 et seq. (2000)), which regulates railroad safety, were precluded. The
Seventh Circuit found that the plaintiff’s FELA claims, that the train was traveling at an unsafe
speed under the conditions (the train was traveling below the FRSA speed limit at the time of
the collision) and that inadequate warning devices failed to prevent the injury, were precluded
by the FRSA because the FRSA had regulations setting speed limits and requiring installation
of certain types of warning devices. Waymire, 218 F.3d at 776-77. Thus, the FRSA already
“covered” the field, precluding the FELA claims. The Seventh Circuit drew support from CSX
Transportation, Inc. v. Easterwood, 507 U.S. 658, 661-62, 673-76 (1993), in which the United
States Supreme Court found the plaintiff’s state-law claim (that the train was operating at an
excessive speed under the conditions, even though it was traveling slower than the speed limit
set by the FRSA) was preempted by the FRSA because the FRSA regulated the area. Waymire,
218 F.3d at 775-76. The Seventh Circuit likened the FELA-based claims to state law claims
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and cited the FRSA’s goal of uniformity in finding the FELA claims were precluded. Id. at
776.
¶ 56 As Union Pacific observes, other courts have reached similar conclusions as the Seventh
Circuit in Waymire in holding that “the FRSA precludes a FELA claim when [a Federal
Railroad Administration] regulation covers the subject matter of that claim and the claim would
impose additional duties on the railroad beyond those contemplated by the applicable
regulation.” Monheim v. Union R.R. Co., 788 F. Supp. 2d 394, 401 (W.D. Pa. 2011); see
Nickels v. Grand Trunk Western R.R., Inc., 560 F.3d 426, 430 (6th Cir. 2009) (plaintiffs’ FELA
claim that railroad was negligent for failing to provide smaller and easier to walk on ballast
was precluded by the FRSA); Lane v. R.A. Sims, Jr., Inc., 241 F.3d 439, 443 (5th Cir. 2001)
(FELA excessive speed claim precluded by the FRSA); McCain v. CSX Transportation, Inc.,
708 F. Supp. 2d 494, 504 (E.D. Pa. 2010) (plaintiff’s claims based on size of track ballast were
precluded under the FRSA, but not his claims based on repetitive squatting, bending, and
climbing up ladders as they were not subsumed under FRSA regulations); Norris v. Central of
Georgia R.R. Co., 635 S.E.2d 179, 182-83 (Ga. Ct. App. 2006) (the FRSA precluded the
plaintiff’s FELA claim that railroad should have used smaller ballast); Norfolk Southern Ry.
Co. v. Denson, 774 So. 2d 549, 556 (Ala. 2000) (no duty under the FELA, FRSA, or LIA to
equip locomotives with air conditioning). Courts have reasoned that “the FRSA may preclude
a FELA claim under an analysis that FELA is a negligence-based statute, and like state
common law negligence claims, FELA negligence claims may not be used to impose duties
beyond those imposed by Congress or the FRA.” Norris, 635 S.E.2d at 182.
¶ 57 Based on this underlying reasoning, courts have applied the same preclusion analysis to
FELA negligence claims covered by the LIA. For example, in Monheim, 788 F. Supp. 2d at
400-01, the plaintiff alleged that the railroad should have equipped the train with a deadman’s
switch or alerter, a cab wired for signal, and an ejection-proof seat. The railroad argued that
the FELA-based claims were essentially “ ‘design’ ” and “ ‘failure to install claims’ ”
precluded by the LIA and the FRSA. Id. at 400. Citing Waymire and similar federal courts of
appeals cases, the Monheim court held that the plaintiff’s FELA claims were precluded by the
LIA because failure to have an alerter or deadman’s switch on a nonpassenger train did not
violate the LIA, the FRA regulations did not require cab signals, and FRA regulations required
a seat to be “ ‘secure’ ” but not “ejection proof.” Id. at 401. The court dismissed these claims
because “allegations of design defect or failure to install are preempted by the LIA and, thus,
are not cognizable under the FELA.” Id. As the Monheim court observed, “[c]ompliance with
the LIA preempts claims pertaining to the design and construction of locomotives, as well as
equipment selection and installation.” Id. at 400 (citing Kurns, 620 F.3d at 397; Southern Ry.
Co. v. Lunsford, 297 U.S. 398, 402 (1936); Mosco v. Baltimore & Ohio R.R., 817 F.2d 1088,
1091 (4th Cir. 1987)).
¶ 58 Bahus argues that his FELA claim is not precluded by the LIA based on the recent United
States Supreme Court case POM Wonderful, 573 U.S. ___, 134 S. Ct. 2228. In that case, the
Court held that the Food, Drug, and Cosmetic Act (FDCA) (21 U.S.C. § 343-1 (2006)) did not
preclude a private cause of action under the Lanham Act (15 U.S.C. § 1125 (2006)) based on
a misleading food label that was regulated by the FDCA. POM Wonderful, 573 U.S. at ___,
134 S. Ct. at 2237. The Court reasoned that neither act expressly limited or precluded Lanham
Act claims, the preemption provision in the FDCA only expressly barred certain types of state
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regulation, and the two statutory regimes complemented each other as each had its own scope
and purpose. Id. at ___, 134 S. Ct. at 2237-39.
¶ 59 As Bahus observes in its reply brief, the United States District Court of the Central District
of Illinois recently relied on the preclusion analysis employed in POM Wonderful in finding a
FELA claim was not precluded by the FRSA despite the fact that the FRSA covered the same
subject matter as the claimed negligence. Jones v. BNSF Ry. Co., 306 F. Supp. 3d 1060, 1070
(C.D. Ill. 2017). The Jones court found that POM Wonderful had displaced Waymire “to the
extent that the Waymire decision is premised on the idea that allowing federal claims about
railroad safety undermines national uniformity.” Id. The Jones court reasoned that POM
Wonderful “explained that disuniformity from a system of varying state laws is ‘quite different’
from the ‘variation in outcome’ that may result from ‘application of a federal statute *** by
judges and juries in courts throughout the country.’ ” Id. (quoting POM Wonderful, 573 U.S.
at ___, 134 S. Ct. at 2239-40).
¶ 60 However, we disagree with Bahus that POM Wonderful is controlling precedent that
modifies our analysis in the present case. POM Wonderful simply applied preclusion analysis
principles to the federal statutory regimes at issue in that case. The court merely looked to the
particular provisions and purposes of the statutes and reasoned that neither act expressly
precluded or limited Lanham Act claims and the regimes were complementary in regulating
related, but different, interests. Thus, its conclusion that a private cause of action under the
Lanham Act was not precluded by the FDCA has no bearing on the present case, which
involves entirely different federal acts. The Supreme Court did not alter or overrule Waymire,
and its decision in POM Wonderful did not impact its prior pronouncements regarding the LIA,
i.e., that it should be liberally construed to protect employees and others in requiring safe
equipment (Lilly, 317 U.S. at 486); that the LIA confers general powers covering the design,
construction, and material of “every part of the locomotive,” its tender, and all appurtenances
(Napier, 272 U.S. at 611); that the LIA is intended to occupy the “entire field of regulating
locomotive equipment” (id.); and draws no distinction between hazards arising from repair and
maintenance as those from use on the line (Kurns v. Railroad Friction Products Corp., 565
U.S. 625, 634 (2012)). Accordingly, POM Wonderful does not alter our analysis here.
¶ 61 Bahus also relies on Myers, 323 Ill. App. 3d at 784-86, in which the Fourth District of the
Illinois Appellate Court held that the plaintiff’s FELA claim that the railroad negligently
allowed its train to run 49 miles per hour, which was less than the set speed limit, at night and
against the flow of traffic and without signals, was not precluded by the FRSA. Myers reasoned
that Easterwood, which the Waymire court had relied on, did not address the effect of the FRSA
on FELA claims and also left open the possibility that the FRSA would not preempt more
specific speed-related tort claims such as failure to slow or stop to avoid a specific hazard. Id.
at 786. The Myers court declined to follow the Seventh Circuit’s Waymire decision on grounds
that it was not required to follow Seventh Circuit precedent, the United States Supreme Court
had not ruled on the issue, and there was a split of authority among lower federal courts. Id. at
786-87.
¶ 62 We recognize that Illinois courts “have considered federal circuit court decisions
persuasive, but not binding in the absence of a decision of the United States Supreme Court.”
State Bank of Cherry v. CGB Enterprises, Inc., 2013 IL 113836, ¶ 34. However, “uniformity
of the law continues to be an important factor in deciding how much deference to afford federal
court interpretations of federal law,” and we will “give considerable weight to” federal courts’
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uniform interpretation of a federal statute. (Emphasis in original.) Id. ¶ 35. In light of the
concern for uniformity and for the reasons outlined above, we continue to follow Waymire.
¶ 63 In addition, we further observe that Bahus’s claim that Union Pacific was negligent in
positioning this valve plainly fell within the purview of the LIA, as it related to the design,
construction, and “material of every part of the locomotive and tender and of all
appurtenances.” Napier, 272 U.S. at 611. That is, the GURU valves were an “ ‘integral or
essential part of a completed locomotive,’ ” considering that without them, the water in the
engine cooling system could freeze and cause catastrophic engine damage to the locomotive.
Grogg, 659 F. Supp. 2d at 1012-13 (quoting Lunsford, 297 U.S. at 402 (the terms “parts” and
“appurtenances” refers to whatever constitutes “ ‘an integral or essential part of a completed
locomotive, and all parts or attachments definitely prescribed by lawful order of the [Secretary
of Transportation], are within the statute’ ”)). The record is undisputed that the placement of
the retrofitted GURU valves was a question of engine design and that Union Pacific followed
the manufacturer’s directions in installing the valves. The installation instructions required the
valves to be located at a specific point in the engine—at the lowest drainage point to allow
water to drain effectively—and that the valve be positioned facing down or at a 45-degree
angle.
¶ 64 Preclusion aside, Bahus nevertheless contends that the LIA is inapplicable because the
locomotive upon which he was working was not “in use” at the time, as required by the LIA,
citing Balough v. Northeast Illinois Regional Commuter R.R. Corp., 409 Ill. App. 3d 750, 757
(2011). In Balough, the court reviewed federal case law defining the term “in use” for purposes
of a claim under the LIA and concluded that courts employ a multifactor analysis:
“where the train was located at the time of the accident; the activity of the injured party;
whether it is on a track in the rail yard prepared for departure or in the roundhouse for
repair; whether it is being moved to a repair location or to a track for departure; and
whether servicing and maintenance work have already been performed.” Id. at 764.
However, in Balough the issue presented was not whether the plaintiff’s claim was preempted
or precluded by another federal statute; rather, the defendant railroad was challenging the
jury’s verdict against it on appeal. As Bahus is not making a claim under the LIA, we find
Balough inapposite to our analysis. Additionally, we note that the United States Supreme Court
has drawn no distinction “between hazards arising from repair and maintenance as opposed to
those arising from use on the line.” Kurns, 565 U.S. at 634 (finding that LIA preempted state
common-law claims for defective design and failure to warn involving locomotive brakes and
engine valves containing asbestos because they were directed at the equipment of
locomotives).
¶ 65 III. CONCLUSION
¶ 66 We affirm the judgment of the circuit court granting summary judgment in favor of Union
Pacific.
¶ 67 Affirmed.
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