Jim Helenhouse of Fletcher & Sippel LLC obtained an affirmance of the District Court’s entry of summary judgment in favor of Wisconsin Central Ltd.

On February 1, 2019, the U. S. Court of Appeals for the 7th Circuit affirmed the Eastern District of Wisconsin’s grant of summary judgment in favor of the railroad in Kopplin v. Wisconsin Central Ltd., 914 F.3d 1099 (7th Cir. 2019). The 7th Circuit found plaintiff did not offer expert testimony needed to establish that the alleged incident caused plaintiff’s injury.

Kopplin claimed he suffered left traumatic medial epicondylitis as a result of attempting to operate a switch in January 2014. He asserted a “run of the mill” negligence claim and a negligence per se claim premised on an alleged defect in the switch in violation of 49 C.F.R § 213.135. The District Court granted summary judgment finding plaintiff provided no evidence that the railroad was on notice of a defect in the switch and further finding plaintiff’s argument that the switch should have been inspected more frequently was precluded by the railroad’s compliance with federal regulations. The District Court also barred plaintiff’s treater from offering causation testimony.

While the focus of the briefs and the oral argument on appeal was on whether POM Wonderful overturned the 7th Circuit’s Waymire decision, the 7th Circuit never reached that issue. Rather, the Court affirmed the District Court’s decision on the basis that plaintiff did not have admissible evidence to prove causation.

Plaintiff argued that no expert medical causation evidence was needed in a traumatic injury case. The 7th Circuit disagreed. After viewing the video capturing the incident from the locomotive cab, the Court concluded plaintiff’s injury was not an obvious traumatic injury because the video showed no obvious point of injury. Moreover, plaintiff continued to work for several hours before reporting the injury.

The 7th Circuit further opined that, because plaintiff’s doctor did not perform a differential etiology by investigating other potential causes to the injury, plaintiff did not offer any admissible evidence under Rule 702 establishing the incident caused the injury. The 7th Circuit similarly rejected the treater’s affidavit, submitted after his deposition and in response to a summary judgment motion, wherein he attempted, for the first time, to definitively state the incident caused the elbow injury. The court reasoned that an affidavit drafted after conflicting unambiguous deposition testimony is not admissible at the summary judgment stage to create an issue of fact. The 7th Circuit further held that, even if the treater’s affidavit could be considered, it disclosed new opinions which were untimely, as they were disclosed far beyond the deadlines for expert disclosures.