United States District Court, M.D. Pennsylvania
action, filed on August 14, 2015, by Plaintiff, seeks to hold
Defendant liable for personal injuries sustained by Plaintiff
as a result of an alleged violation of the Federal
Employers' Liability Act
(“FELA”) and the Federal Safety Appliance Act
(“FSAA”). Currently before the Court is
Plaintiff's motion for partial summary judgment. (Doc.
17). The motion has been fully briefed by both parties, and
is now ripe for disposition. For the reasons that follow, the
Court will grant in part and deny in part Plaintiff's
a railroad worker, alleges he was injured on August 7, 2014,
while working at Defendant's Binghamton, New York rail
yard. (Doc. 17, Pltf.'s SOF ¶1). In the early hours
of the morning, while assisting in the make-up of freight
trains used by Defendant in its rail operations, Plaintiff
chose to cross over a stationary rail car to get to the other
side of the track to continue switching rail cars, as opposed
to walking around a draft of cars, which could potentially be
over a mile long. (Id., ¶¶ 4-5; Doc 22,
Pltf.'s Reply Br., p. 5). The specific rail car, CP
337299, was equipped with a crossover board/end platform,
which Plaintiff contends is a type of running board that is
placed on the end of certain train cars to allow for safe
movement between train cars. (Doc. 17, ¶ 5; Doc. 18,
Pltf.'s Br., p. 2).
Plaintiff was traversing the crossover board, it suddenly
gave way, sending him to the ground where he struck his back
and head on the rail and ground. (Doc. 17, ¶¶ 6-8).
An inspection of rail car CP 337299 revealed that the
crossover platform had a missing bolt that appeared to be
missing from its bracket for some time. (Id.,
¶10). Defendant subsequently posted a safety alert,
informing its employees that an “employee [was] injured
when using end platform, ” and that upon inspection of
the end crossover platform, it was identified that a bolt was
missing. (Doc. 17-7, Safety Alert).
also provides an expert affidavit opining that in addition to
the crossover platform's defect, the ladder on the same
rail car was also defective. (Doc. 23-8, Aff. of D.M. Greig).
Plaintiff contends that these are separate violations of the
FSAA. Plaintiff now moves for partial summary judgment as to
the issue of liability.
Standard of Review
judgment is appropriate when “the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact, and the moving
party is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(c). An issue is “genuine” if
there is sufficient evidence with which a reasonable jury
could find for the non-moving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986); Childers v.
Joseph, 842 F.2d 689, 693-94 (3d Cir. 1988) (citing
Anderson, 477 U.S. at 248). A factual dispute is
“material” if it might affect the outcome of the
case. Anderson, 477 U.S. at 248. In determining
whether an issue of material fact exists, the court must
consider the evidence in the light most favorable to the
non-moving party. Skerski v. Time Warner Cable Co.,
257 F.3d 273, 278 (3d Cir. 2001); White v. Westinghouse
Elec, Co., 862 F.2d 56, 59 (3d Cir. 1988).
seeking summary judgment always bears the initial burden of
informing the court of the basis of its motion and
identifying those portions of the record that it believes
demonstrates the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The non-moving party then has the burden to “come forth
with ‘affirmative evidence, beyond the allegations of
the pleadings, ' in support of its right to
relief.” U.S. Bank, Nat'l Ass'n v.
Greenfield, No. 1:12-CV-2125, 2014 WL 3908127, *2 (M.D.
Pa. Aug. 11, 2014) (quoting Pappas v. City of
Lebanon, 331 F.Supp.2d 311, 315 (M.D. Pa. 2004)).
“If a party fails to properly support an assertion of
fact or fails to properly address another party's
assertion of fact as required by Rule 56(c), ” a court
may grant summary judgment or consider the fact undisputed
for purposes of the motion. Fed.R.Civ.P. 56(e)(2-3).
initial matter, Defendant has set forth evidentiary
objections to all of Plaintiff's exhibits and documents
used in support of his motion for partial summary judgment.
In his reply brief, Plaintiff counters that the documents
used in support of his motion are all properly authenticated
and before the Court for our consideration.
argues that Plaintiff's motion should be denied because
it is “not supported by evidence in the record and
relies upon inadmissible hearsay and [an] unsworn
‘report' from Plaintiff's expert ....”
(Doc. 21, Def.'s Br. In Opp, p. 2). Specifically,
Defendant argues that the following documents used to support
Plaintiff's motion do not satisfy the requirements set
forth in Federal Rule of Civil Procedure 56 or Local Rule
56.1: a transcript of an interview conducted by
Defendant's district claims representative of Plaintiff
(Doc. 17-2, Pltf.'s MPSJ), a Crew Information Sheet (Doc.
___, Ex___),  photographs (Doc.17-3, 4), an Asset Damage
Report (Doc.17-5), Mechanical Inspection Report (Doc.17-6), a
Safety Alert (Doc. 17-7), and an expert report from D.M.
Greig (Doc.17-11). We find Defendant's argument raises
both an authentication issue and hearsay issue to the
documents, and we will address each in turn.
moving for partial summary judgment must cite to
“particular parts of materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations ..., admissions,
interrogatory answers, or other materials ...” in order
to support his assertion that a fact cannot be genuinely
disputed. Fed.R.Civ.P. 56(c)(1)(A).
terms of authentication of documents, Federal Rule of
Evidence 901(a) states, “[t]he requirement of
authentication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to support
a finding that the matter in question is what its proponent
claims.” The burden of proof for authentication is
slight. McQueeney v. Wilmington Trust Co.,
779 F.2d 916, 928 (3d Cir. 1985); see also Link v.
Mercedes-Benz of North America, 788 F.2d 918, 927 (3d
Cir. 1986) (stating that the “showing of authenticity
is not on a par with more technical evidentiary rules, such
as hearsay exceptions, governing admissibility. Rather, there
need be only a prima facie showing, to the court, of
authenticity, not a full argument on admissibility.”).
when a particular document has been produced by a party
pursuant to a discovery request, “there is a sufficient
foundation for a jury to determine that [the] document is
what it is purported to be ....” Lexington Ins. Co.
v. Western Pennsylvania Hosp., 423 F.3d 318, 329 (3d
Cir. 2005); see McQueeney, 779 F.2d at 929
(“[T]he fact that copies were produced by the plaintiff
in answer to an explicit discovery request for his Sea
Service Records, while not dispositive on the issue of
authentication, is surely probative.”); In re
Japanese Elec. Prods. Antitrust Litig., 723 F.2d 238,
286 (3d Cir. 1983), rev'd on other grounds, 475
U.S. 574 (1986) (“[The exhibits] have the appearance,
content, and substance typical of [board] minutes. They were
produced by the defendants pursuant to a discovery order ...