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Kirkland v. Burlington Northern and Santa Fe Railway Company11/14/2003
George Kirkland challenges a summary judgment obtained by Burlington Northern and Santa Fe Railway Company (BNSF) in a personal injury action based on alleged asbestos exposure. Because BNSF's separate statement of facts in support of summary judgment was insufficient to shift the burden of production to Kirkland, the grant of summary judgment was improper. We therefore reverse.
I. FACTS AND PROCEDURAL BACKGROUND
Kirkland worked for BNSF's predecessor, the Santa Fe Railroad (SFR), for six weeks in 1964. Kirkland's complaint alleged he was exposed to asbestos at SFR while working "on and around locomotives." An exhibit to the complaint specified the exposure "may have been" while "driving a cart" and "filling oil in journal boxes." As an "oiler," Kirkland lubricated the boxcar axles by adding oil to the "journals" on each boxcar. Each journal consisted of a box inside which the axle rotated. As described by Kirkland, the journals "contained cloth like mops that absorbed the oil to keep it from spilling out of the journal box. At times, these journal boxes would have no oil in them and contain fresh dry cloth like mops. These cloth like mops turned dark in color when the oil was added." Kirkland stated in his declaration that he "never wore a mask of any kind while performing this work."
Kirkland produced a "Supplemental Case Report" below in which he listed "five product identification witnesses who put asbestos-containing products at the Santa Fe Railroad during the time that plaintiff worked there." Two of the witnesses, according to Kirkland, "each place the asbestos-containing products of some 13 defendants at the Santa Fe Railroad." Four of the witnesses specifically identified "JOHNS-MANVILLE" as a manufacturer of these products. The fifth witness, per Kirkland, recalled "working out of a blacksmith shop that had an asbestos lined siding exterior," in addition to "asbestos welding gloves and sheeting being used at the railroad."
At his deposition, Kirkland could not recall whether he worked with any of the five witnesses listed in his case report. When asked, "Sir, do you have any reason to believe that you were exposed to asbestos while working for the Santa Fe Railroad?" Kirkland answered "Not that I know of." Prior to Kirkland's answer, his attorney objected that the question lacked foundation and called for speculation.
BNSF moved for summary judgment on grounds that Kirkland could not prove he had been exposed to asbestos during his six weeks of employment. In its entirety, BNSF's separate statement of undisputed material facts read as follows: "1. Plaintiff's complaint alleges two causes of action against BNSF: (1) general negligence under the Federal Employers Liability Act (FELA) and (2) violation of the Boiler Inspection Act (BIA). [ ] 2. Plaintiff's complaint arises out of plaintiff's alleged employment with BNSF's predecessor in interest, the Santa Fe Railroad, in Bakersfield. [ ] 3. Plaintiff was employed by the Santa Fe for a month and a half in 1964. [ ] 4. Plaintiff worked outdoors, driving a cart around the yard, filling up oil in journal boxes, hanging doors in boxcars, and loading ice onto the boxcars. [ ] 5. Plaintiff did not do any maintenance on cars and did not work on locomotives. [ ] 6. Plaintiff did not work around any construction while employed by the Santa Fe. [ ] 7. Plaintiff did not do any pipefitting work while working for the Santa Fe. [ ] 8. While employed by the Santa Fe, plaintiff did not work at the back shops. [ ] 9. While employed by Santa Fe, plaintiff did not visit any roundhouses. [ ] 10. Plaintiff does not recall the names of any of his co-workers at the Santa Fe. [ ] 11. Plaintiff does not know t
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