Alexandersen & Olarczuk-Smith Win Appeal for Two Major Railroad Carriers

Mar 25, 2024 | News

On March 22, 2024, the Sixth District Court of Appeals affirmed summary judgment for two major railroad carriers in a throat cancer case filed in Lucas County Court of Common Pleas.  Plaintiff filed his action under the Federal Employers’ Liability Act (“FELA”) alleging that the railroads negligently exposed him to diesel exhaust and asbestos over the course of his career and that this exposure had caused his cancer. In the summary judgment motion, the railroads argued that Plaintiff failed to disclose any of his expert reports as required by the civil rules and the trial court’s scheduling order.  In addition, Plaintiff’s opposition to summary judgment was untimely filed and Plaintiff failed to request an extension or otherwise demonstrate excusable neglect.  Plaintiff then belatedly disclosed his expert reports and further, those reports were not authenticated as required by Civ.R. 56.  The trial court agreed with all of the arguments presented by the railroads and dismissed the entire action.  Plaintiff appealed.

On review, the Sixth District Court of Appeals affirmed summary judgment. In reaching this determination, the appellate court determined that the trial court properly exercised its discretion when it refused to consider Plaintiff’s untimely filings.  Even if the trial court had excused the untimeliness of Plaintiff’s experts and memorandum in opposition to summary judgment, Plaintiff failed to present admissible summary judgment quality evidence in opposing the railroads’ motion.  The expert reports attached to Plaintiff’s opposition were not authenticated and could not be considered.  Without expert testimony, Plaintiff could not defeat the railroads’ summary judgment. 

Kevin Alexandersen and Holly Olarczuk-Smith are pleased with the outcome of this matter as this case can be used in other FELA cases in support of similar arguments.