A-1-CA-35822 | Omnilex

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Court of Appeals of New Mexico
CLINTON PLANT, Filed 4/4/2019 12:58PM *
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Plaintiff-A ppeilant, Mark Reynolds
v. No. A-1-CA-35822"
BNSF RAILWAY COMPANY,
Defendant-Appellee.
APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY
James Lawrence Sanchez, District Judge

Long, Komer & Associates, P.A.
Mark E. Komer

Jonas M. Nahoum

Santa Fe, NM

Hunegs, LeNeave & Kvas
Willaim Kvas
Wayzata, MN
for Appellant
Modrall, Sperling, Roehl, Harris & Sisk, P.A.
Tim L. Fields
Nathan T. Nieman
Jennifer L. Bradfute
Albuquerque, NM
for Appellee
MEMORANDUM OPINION
DUFFY, Judge.
4} Plaintiff Clinton Plant appeals the district court’s order granting BNSF

Railway Company’s (BNSF) motion for summary judgment and dismissing his

complaint for personal injuries with prejudice. Because Plaintiff failed to meet his
burden to rebut BNSF’s prima facie showing regarding causation, we affirm the
district court.

BACKGROUND

2} Plaintiff worked as a conductor for BNSF and alleges that he was injured due
to BNSF’s negligent handling of a “shoving” movement, where a locomotive engine
pushes a string of rail cars from behind to couple them with a set of standing cars.
During the shove, Plaintiff rode in the front car of an eighty-one car string and
communicated by radio with the engineer operating the locomotive at the back of
the string, who controlled the speed and braking of the train. Plaintiff alleges that the
train movement stopped abruptly, without warning, and caused “ ‘slack
action’... from the chain reaction of the [eighty-one] cars in the string moving
forward and then slamming against their couplings.” Plaintiff states that he managed
to hold on to the railcar ladder on the side of the train to prevent being thrown to the
ground, but this caused injury to his left arm and shoulder.

3} Plaintiff filed suit against BNSF under the Federal Employers Liability Act
(FELA), 45 U.S.C. §§ 51-60 (2012), alleging that BNSF was negligent under two
theories: (1) negligence arising from BNSF’s failure to provide him with a
reasonably safe place to work (negligent train handling) and (2) “strict liability”

arising from BNSF’s alleged violation of a Federal Railroad Administration

regulation regarding radio transmissions. See 49 C.F.R. § 220.31 (2018) (“Initiating
a radio transmission”). Nearly two years after Plaintiff initiated the lawsuit, BNSF
filed a motion for summary judgment, arguing that (1) Plaintiff does not have an
expert to support his claim that negligent train handling caused his injuries (i.e. a
liability expert), and (2) Plaintiff has not established medical causation for his
injuries. In response, Plaintiff argued that (1) expert testimony was not required to
establish the standard of care for a shove movement under the FELA or to opine
about BNSF’s breach of that standard; and (2) while “medical testimony [was]
necessary to establish causation,” he would provide that testimony at trial.

{4}. The district court conducted a forty-minute hearing on the motion and heard
argument on both issues before granting summary judgment. The district court
concluded that the issues in this case involve the possession and use of special
knowledge and skills regarding train handling or improper radio communications,
and expert testimony was therefore required as a matter of law to establish liability.
The district court also determined that Plaintiff had failed to come forward with
evidence to establish a question of fact as to causation for his left shoulder injury.
Following the hearing, the district court entered an order granting summary

judgment and dismissing all of Plaintiffs claims with prejudice.!

'The district court’s written order does not specify the basis for granting the
motion. We refer to Rule 1-056(C) NMRA, which states, “If alternative grounds for
summary judgment have been presented to the court, the order granting or denying

DISCUSSION

{5} The district court granted summary judgment on two grounds: (1) that
Plaintiff lacked an expert witness to testify about liability, and (2) that Plaintiff
lacked evidence of medical causation. Either basis is dispositive of all of Plaintiff's
claims; therefore, unless reversal is appropriate on both theories, we must affirm the
district court’s order. On appeal, Plaintiff argues that if we reverse on the first issue,
we should permit him additional time to meet his burden on the second issue by
allowing him to present an affidavit in support of medical causation. Because
summary judgment was appropriate as to medical causation, we affirm the district
court.
Standard of Review

{6} | “FELA actions in state courts follow state procedural rules, including rules
for summary judgment.” Noice . BNSF Ry. Co., 2015-NMCA-054, { 20, 348 P.3d
1043; see St. Louis Sw. Ry. Co. v. Dickerson, 470 U.S. 409, 411 (1985) (“As a
general matter, FELA cases adjudicated in state courts are subject to state procedural
rules, but the substantive law governing them is federal.”). “We review an order
granting summary judgment de novo.” Wilde v. Westland Dev. Co., 2010-NMCA-

085, | 12, 148 N.M. 627, 241 P.3d 628. Summary judgment is appropriate where the

the motion for summary judgment shall specify the grounds upon which the order is
based.”

facts are not in dispute and only the legal effect of those facts remain to be
determined. See Gardner-Zemke Co. v. State, 1990-NMSC-034, ¥ 11, 109 N.M. 729,
790 P.2d 1010. “The burden is first on the moving party to make a prima facie
showing that there is no genuine issue of fact as to one or more of the requisite
elements in [nonmovant’s] claim.” Bartlett v. Mirabal, 2000-NMCA-036, { 17, 128
N.M. 830, 999 P.2d 1062 (alterations, internal quotation marks, and citation,
omitted); see also Roth v. Thompson, 1992-NMSC-011, 417, 113 N.M. 331, 825
P.2d 1241 (“The movant need only make a prima facie showing that he [or she] is
entitled to summary judgment.”). The burden then “shifts to the [non movant] to
demonstrate the existence of specific evidentiary facts which would require trial on
the merits.” Jd. “Where an appeal is taken from an order granting summary
judgment, the reviewing court will assess the record in the light most favorable to
support a trial on the merits.” Blauwkamp v. Univ. of N.M. Hosp., 1992-NMCA-048,
q 10, 114. N.M. 228, 836 P.2d 1249.

Summary Judgment Was Proper on Medical Causation

{7 | BNSF argues that expert medical testimony was necessary to establish that
Plaintiff's injuries were caused by the shoving incident. BNSF further states that
although Plaintiff had designated one of his treating physicians, Dr. Bair, as an
expert who would testify about causation, Plaintiff had not produced evidence of Dr.

Bair’s opinion that Plaintiff's left arm and left shoulder injuries were caused by the

incident. In addition, BNSF presented deposition testimony from Plaintiff's other
treating physician to demonstrate that the injuries could have been the result of other
causes unrelated to the shove—‘wear and tear” and degeneration.” Under similar
circumstances, we have held that a defendant made a prima facie showing of its
entitlement to summary judgment by alleging that the plaintiffs could not point to
the existence of required expert evidence to establish an element of their claim. See
id. J 16 (holding, in the context of a medical malpractice action, that plaintiffs’
admission that they lacked an expert witness was sufficient to support the
defendants’ prima facie showing of entitlement to summary judgment on the basis
that the nonmoving party’s evidence was insufficient to establish an essential
element of the nonmoving party’s claim.). BNSF thus met its initial burden to
establish a prima facie case for summary judgment.

{833 Once BNSF made a prima facie showing that it was entitled to summary
judgment, the burden shifted to Plaintiff to come forward with an affidavit or other
evidence demonstrating that his injuries were caused by the shove. See id. § 18. As
an initial matter, Plaintiff acknowledged in his response that expert testimony was

needed to establish medical causation. Consequently, he has waived any argument

Contrary to Plaintiffs suggestion, BNSF was not required to provide a
“counter-affidavit purporting to negate medical causation or Plaintiff's deposition
testimony.” We specifically réjected this argument in Blauwcamp, 1992-NMCA-
048, 7 15 (recognizing that defendant need not affirmatively disprove plaintiff's
claim to demonstrate a prima facie case of entitlement to summary judgment).

on appeal that an expert was not required or that he could establish causation through
his own testimony. See Rule 12-321(A) NMRA (“To preserve a question for review
it must appear that a ruling or decision by the district court was fairly invoked.”);
Haaland v. Baltzley, 1990-NMSC-086, J 14, 110 N.M. 585, 798 P.2d 186 (“Facts
stipulated to are not reviewable on appeal.”). Plaintiff did not provide an affidavit
from Dr. Bair, and the medical records and expert witness disclosure he produced as
exhibits did not contain a causation opinion. Plaintiff's substantive response to the
motion stated only that “he will rely on Dr. Bair to provide testimony at trial on
medical causation” and “[a]f trial, Dr. Bair will provide testimony [that establishes
that] his causation opinion is supported by the necessary medical probability.”
(Emphasis added.)

993 It is well settled that a nonmovant’s promise of evidence to come is|
insufficient to rebut a prima facie case for summary judgment. See Sanders v. Smith,
1972-NMCA-016, J 15, 83 N.M. 706, 496 P.2d 1102 (stating that after the defendant
met its initial burden, “the plaintiffs could not remain silent. They must apprise the
court of available expert proof to the contrary and then produce it.”); see also
Romero v. Philip Morris, Inc.,2010-NMSC-035, ¥ 10, 148 N.M. 713, 242 P.3d 280
(“A party may not simply argue that such evidentiary facts might exist, nor may it
rest upon the allegations of the complaint. Rather, the party opposing the summary

judgment motion must adduce evidence to justify a trial on the issues.” (alterations,

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internal quotation marks, and citations omitted)); Schwartzman v. Schwartzman
Packing Co., 1983-NMSC-010, 22, 99 N.M. 436, 659 P.2d 888 (“A party opposing
a motion for summary judgment must make an affirmative showing by affidavit or
other admissible evidence that there is a genuine issue of material fact once a prima
facie showing is made by the movant.”). Having failed to produce any evidence of
medical causation, Plaintiff failed to meet his burden to rebut BNSF’s prima facie
showing. The district court properly granted summary judgment on medical
causation. See Mayfield Smithson Enters v. Com-Quip, Inc., 1995-NMSC-034, § 22,
120 N.M. 9, 896 P.2d 1156. (‘Summary judgment is appropriate when a defendant
negates an essential element of the plaintiff's case by demonstrating the absence of
an issue of fact regarding that element.”).

The District Court Did Not Err in Declining Plaintiff’s Request for Additional
Time

410} We briefly address Plaintiff's request, made below and on appeal, for
additional time to submit an affidavit on the issue of medical causation. While late
summary judgment affidavits should be accepted in certain circumstances, our
holdings to that effect have been limited to instances where the affidavits were
proffered by the nonmoving party at the summary judgment hearing. See Richards
v. Upjohn Co., 1980-NMCA-062, § 22, 95 N.M. 675, 625 P.2d 1192 (“[A]n affidavit
submitted the day of the summary judgment hearing should be allowed, unless the

other party needs time to rebut the information contained in the affidavit, and there
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is some reason that the hearing cannot be postponed.”); see also Marquez v. Gomez,
1991-NMCA-066, q 25, 116 N.M. 626, 866 P.2d 354 (holding that the district court
should have considered affidavits tendered on the day of the hearing when the
defendants did not argue that they were prejudiced). Neither Richards nor Marquez
stands for the proposition that the district court must allow Plaintiff additional time
after the summary judgment hearing to bring forth evidence to controvert the moving
party’s prima facie case; such a request is in essence a request that the district court
allow the nonmoving party a second chance to survive summary judgment.

1} If Plaintiff was unable to procure an affidavit from his expert before the
hearing, Rule 1-056(F) NMRA provided the mechanism for him to seek an extension
of time to obtain it. Plaintiff did not invoke Rule 1-056(F), as he neither presented
his own affidavit nor explained why he needed more time. There is no indication in
the record that the affidavit Plaintiff needed was unavailable to him before the
motion hearing. See Wilde , 2010-NMCA-085, {ff 33-39 (affirming district court’s
refusal to consider affidavit filed after motion for summary judgment was granted
when the party submitting the affidavit failed to provide any reason why she did not
present it or disclose its contents at the summary judgment hearing). The district
court did not abuse its discretion in denying Plaintiffs request for additional time.
{12} Because we find that the lack of expert evidence regarding medical causation

was sufficient to justify summary judgment and that summary judgment on this issue

is dispositive of all of Plaintiff's claims, we do not reach the remaining issue of
whether expert testimony was required to establish liability.

CONCLUSION

413} For the foregoing reasons, we affirm the district court’s order granting
BNSF’s motion for summary judgment. |

4; ITISSO ORDERED.

WE CONCUR:

pM Av~

J. MILES HANISEE, Judge

April 4, 2019- Clinton Plant v. BNSF Railway Company, No. A-1-CA-35822

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