United States District Court, D. South Dakota, Central Division
OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR
ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE
August 28, 2019, Defendant Dakota Southern Railway Company
(Dakota Southern) filed a Motion for Summary Judgment with an
accompanying Memorandum in Support and a Statement of
Undisputed Material Facts in accordance with the District of
South Dakota's Civil Local Rule 56.1.A. Docs. 33-35. As
of October 10, 2019, Plaintiff Lester Thompson (Thompson) had
filed neither a response to Dakota Southern's motion nor
a statement of material facts identifying a genuine material
issue to be tried as required by this Court's Civil Local
Rule 56.1 .B. On that date this Court entered an order
directing Thompson to file a response brief and statement of
material facts within fourteen days. Doc. 38. Thompson has
not done so. Therefore, this Court considers Dakota
Southern's motion, and for the reasons discussed below
grants its motion for summary judgment.
Thompson did not submit a response to Dakota Southern's
filings, "[a]ll material facts set forth in [Dakota
Southern's] statement of material facts [are] deemed to
be admitted," under this Court's Civil Local Rule
56.1.D, and the following facts are therefore undisputed.
filed this action under the Federal Employers' Liability
Act (FELA) as a result of injuries he allegedly sustained
while working as the general manager of Dakota Southern
between 2011 and 2015. Doc. 1; Doc. 35 at ¶ 1-2, 6.
Thompson alleges four causes of action arising from
negligence of Dakota Southern, -claiming Dakota Southern
failed to provide employees with adequate training,
supervision, assistance, and help in performing job duties
and claiming strict liability for failing to comply with
certain statutory provisions. Doc. 1; Doc. 35 at ¶ 3-4.
Thompson asserts that he developed problems with his back,
wrist, hip, leg, and sciatic region as well as suffered
emotional distress as a result of Dakota Southern's
actions or inactions. Doc. 1; Doc. 35 at ¶ 5.
Southern answered Thompson's complaint with a general
denial of liability for negligence or strict liability. Doc.
12; Doc. 35 at ¶ 19. This Court entered a scheduling
order and four amended scheduling orders, with the last such
order requiring that the identity and reports of experts
retained under Rule 26(a)(2) be disclosed by June 10, 2019.
Docs. 15, 17, 20, 22, 26; Doc. 35 at ¶ 20-21. Thompson
did not meet this deadline, and Dakota Southern filed a
motion for summary judgment on August 28, 2019, claiming that
without such expert evidence, Thompson cannot make out a
prima facie case under FELA. Docs. 33-34. Thompson did not
respond to this motion within the twenty-one-day time limit,
nor did he file a statement of material facts. See D.S.D.
Civ. LR 7.1, 56.1.B. Because Thompson's attorney withdrew
in January of 2019 and Thompson is now proceeding pro se,
this Court gave him another opportunity to file these
documents. Doc. 38. In that Order Requiring Response, this
Court alerted Thompson that "[t]his Court could grant
both motions [the motion to stay discovery and motion for
summary judgment] as being unopposed, but the consequences of
granting summary judgment are of course grave for
[Thompson's] claims." Doc. 38. Despite that warning,
Thompson has still not opposed Dakota Southern's motion
within the additional time allowed for him to do so.
court shall grant summary judgment if the Movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). Federal Rule of Civil Procedure 56(c)
explains how a nonmoving party may establish the existence of
a genuine dispute in order to survive a motion for summary
judgment. Fed.R.Civ.P. 65(c). "If a party fails... to
properly address another party's assertion of fact as
required by Rule 56(c), the court may... grant summary
judgment if the motion and supporting materials- including
the facts considered undisputed-show that the movant is
entitled to it." Fed.R.Civ.P. 56(e).
creates a cause of action in negligence for employees of
common carriers by railroad to seek damages from their
employers. 45 U.S.C. § 51. As a negligence claim, FELA
plaintiffs must establish the four common law elements of
negligence to succeed; they must prove duty, breach,
foreseeability, and causation. Madden v. Anton Antonov
§ AV Transp. Inc., 156 F.Supp.3d 1011, 1017 (D.
Neb. 2015). "However, the Court applies a relaxed
standard of causation under FELA." Id. By its
terms, FELA creates a negligence cause of action; it is not a
strict liability statute. Kukowski v. Soo Line R.R.
Co.. 2018 WL 384235 at *5 (D. Minn. Feb. 12, 2018). A
plaintiff may however use a statutory violation to establish
that a railroad has breached a duty as a matter of law, but
the plaintiff in that instance still must show the necessary
causation element. Id.
cases often require expert evidence to establish the causal
link between the alleged incidents and the resulting physical
or mental injury, '"unless the connection is a kind
that would be obvious to laymen, such as a broken leg from
being struck by an automobile.'" Brooks v.
Union Pacific R. Co., 620 F.3d 896, 899 (8th
Cir. 2010) (quoting Moody v. Maine Cent. R.R. Co.,
823 F.2d 693, 695 (1st Cir. 1987)). When the type of injury a
plaintiff suffers lacks an obvious origin, expert testimony
is required to establish causation, even under the relaxed
FELA standard. Id.
FELA claims involve alleged injuries to his back, wrist,
shoulder, hip, leg and sciatic region as well as emotional
distress, resulting from both recurring and isolated work
activities. Doc. 1. However, he has provided no evidence
beyond the allegations contained in his complaint that those
injuries were directly and proximately caused by the action
or inaction of Dakota Southern, and it is well-settled that
"a party opposing a properly supported motion for
summary judgment may not rest upon mere allegations or
denials of his pleading." Anderson v. Liberty Lobby.
Inc.. 477 U.S. 242, 256 (1986).
time for disclosing the identity and reports of expert
witnesses has passed. The types of injuries that Thompson
alleges and their connection to his employment with Dakota
Southern are not so obvious to laymen that expert testimony
is unnecessary. See Brooks, 620 F.3d at 899;
Moody, 823 F.2d at 695. Therefore, because Thompson
has failed to identify an expert who may testify to establish
the causation element of a negligence ...