Nathan Mead, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1965

Nathan Mead,
Appellant,

Amy Mead, Plaintiff,

vs.

BNSF Railway Company,
Respondent,

Ture Lee,
Respondent on related appeal,

and

BNSF Railway Company,
Respondent,

vs.

Jerry Lee,
Respondent on related appeal.

Filed September 30, 2019
Reversed and remanded
Kirk, Judge*

Hennepin County District Court
File No. 27-CV-15-10789

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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William Kvas, Richard L. Carlson, Hunegs , LeNeave & Kvas, P.A., Wayzata , Minnesota
(for appellant)

Sally J. Ferguson, Emily A. Atkinson, Arthur, Chapman, Kettering, Smetak & Pikala, P.A.,
Minneapolis, Minnesota; and

Alice E. Loughran (pro hac vice), Steptoe & Johnson, LLP, Washington, D istrict of
Columbia (for respondent BNSF Railway Company)

Robert H. Tennant, Meghan A. Cooper, Stringer & Rohleder, Ltd., St. Paul, Minnesota (for
respondents Ture Lee and Jerry Lee)

Considered and decided by Schellhas, Presiding Judge; Rodenberg, Judge; and Kirk,
Judge.
U N P U B L I S H E D O P I N I O N
KIRK, Judge
Appellant challenges the district court’s grant of summary judgment. Because the
district court’s decision turned on the erroneous exclusion of medical expert testimony, we
reverse and remand.
FACTS
Appellant Nathan Mead challenges the district court’s grant of summary judgment
in favor of respondent BNSF Railway Company (BNSF) on appellant’s negligence claim
against BNSF under the Federal Employ ers’ Liability Act (FELA), 45 U.S.C. § § 51-60
(2012). The parties dispute the material facts. Appellant alleges the following facts in
support of his FELA claim.
On August 3, 2012, appellant was working as a carman inspecting and repairing
railroad freight cars for BNSF when a supervisor asked him to respond to a call for repairs
in St. Paul. Appellant was told to take a company truck, unit 20, to perform the repair

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work. Appellant inspected unit 20, as required by BNSF safety rules, and observed defects
in the windshield, defroster, and inspection lights. Appellant requested a different vehicle
but none was available.
On his way to the job site , appellant drove into a tunnel, where he was forced to
slow down and change lanes due to an earlier accident. While driving through the tunnel,
appellant was rear-ended by respondent Jerry Lee. Appellant alleged that the driver’s seat
in the truck reclined upon impact, which caused him to “torpedo” backward through the
rear window of the truck. Appellant suffered injuries to his head, neck, back, and shoulders
as a result.
After the accident, unit 20 was taken to an automobile repair shop to be inspected
and repaired. This repair shop had repaired BNSF vehicles in the past and had performed
over $80,000 worth of repairs and maintenance on unit 20 alone. The repair shop inspected
the driver’s seat and determined that the recliner and slider mechanisms were intact and
functioning properly.
Appellant hired William H. Muzzy , III, a mechanical engineer who consults and
provides expert evaluation and testimony on restraint -system effectiveness in automobile
accidents. In his report, Muzzy noted that the repair shop had previously performed repairs
on the driver’s seat of unit 20, including reupholstering the seat and replacing the
cushioning, but had not replaced the recliner and slider mechanisms. According to Muzzy,
it would have been prudent to rebuild the entire seat structure or replace it with a new seat,
given the seat’ s condition and the constant use of the truck. Muzzy concluded that the
recliner mechanism failed on the seat, that the repair shop knew or should have known that

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the driver’s seat recliner was worn and defective, and that appellant would not have
received the injuries caused by hitting his head against the rear window of the truck had
the recliner mechanism not failed.
In June 2015, appellant filed a complaint against BNSF alleging negligence under
FELA. In the complaint, appellant also named respondent Ture Lee as a defendant.
Appellant alleged that Ture Lee owned the vehicle that Jerry Lee was driving when the
crash occurred and that Ture Lee was vicariously liable for Jerry Lee’s negligence. In
August 2015, BNSF filed a third -party complaint against Jerry Lee alleging that his
negligence caused appellant’s injuries and requesting contribution and indemnity from him
in the event that BNSF was found liable to appellant. BNSF also filed a cross-claim against
Ture Lee for contribution and indemnity.
BNSF subsequently moved for summary judgment. The district court granted
BNSF’s summary -judgment motion and dismissed appellant’s FELA negligence claim
against BNSF, concluding that appellant could not establish causation or foreseeability.
Appellant appealed that decision to this court. We reversed, holding that the evidence,
when viewed in the light most favorable to appellant, could support his theories regarding
causation and foreseeability. Mead v. BNSF Ry. Co., No. A17-0480, 2018 WL 414318, at
*5-6 (Minn. App. Jan. 16, 2018). The case was remanded to the district court. Id. at *6.
On remand, BNSF filed a motion to “exclude the opinions and anticipated testimony
offered” by appellant’s experts , including Muzzy and Scott Benson, M.D. BNSF argued
that both opinions lacked foundation.

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Muzzy’s expert opinion concerned the seat belt restraining system and the seat back
recliner mechanism on the driver’s seat in unit 20, as well as the condition of the driver’s
seat generally. Muzzy was also expected to testify that the repair shop knew or should
have known that the driver’s seat recliner was worn and defective, that the defect caused
the driver’s seat back to fail, and that such failure caused appellant’s injuries. Dr. Benson’s
expected testimony consisted of a medical causation opinion that the act of appellant hitting
the rear window of unit 20 contributed to the injuries that he sustained.
The district court granted BNSF’s motion, reasoning, in relevant part, that Muzzy’s
opinion lacked foundation and was not supported by the evidence, and that Dr. Benson was
not qualified to offer his expert testimony and his testimony lacked foundation. After the
district court granted BNSF’s motion to exclude, BNSF filed a motion to dismiss
appellant’s FELA claim, based solely on the exclusion of Dr. Benson’s testimony and the
consequent lack of medical-causation evidence.
The district court construed BNSF’s motion as a summary-judgment motion and
granted it, reasoning that appellant’s FELA claim required medical expert testimony to
prove that the failure of the seat -latch mechanism, and not the accid ent itself, caused his
injuries and that appellant was unable to provide such testimony because the district court
had ruled inadmissible the only medical -causation testimony he proffered, that of Dr.
Benson. The district court therefore dismissed appellant’s claim against BNSF, as well as
BNSF’s claims against Ture Lee and Jerry Lee.

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Appellant challenges the district court’s grant of summary judgment. BNSF filed a
notice of related appeal challenging the district court’s dismissal of BNSF’s claims against
the Lees.
D E C I S I O N
We review a grant of summary judgment de novo. Gallagher v. BNSF Ry. Co., 829
N.W.2d 85, 88 (Minn. App. 2013). This requires determining whether there are any
genuine issues of material fact and whether the district court err ed in its application of the
law. Id. at 88-89. We consider the evidence in the light most favorable to the non-moving
party. Id. at 89. Summary judgment is proper when there are no genuine issues of material
fact and a party is entitled to a judgment as a matter of law. Minn. R. Civ. P. 56.0 1,
Gallagher, 829 N.W.2d at 89.
I.
Appellant first argues that the district court erred in failing to apply the law-of-the-
case doctrine and abused its discretion by ruling that Muzzy’s expert testimony was
inadmissible. At oral argument, BNSF argued that the admissibility of Muzzy’s testimony
and the application of the law-of-the-case doctrine are not necessary for resolution of this
appeal. We agree.
In its sum mary-judgment order, the district court specifically addressed Dr.
Benson’s excluded testimony and granted summary judgment on the ground that without
that testimony, appellant could not establish medical causation. The district court did not
discuss Muzzy’s expert testimony, and the exclusion of that testimony was not a basis for

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the grant of summary judgment . Because the exclusion of Muzzy’s testimony was not at
issue in the decision appealed, we decline to address it.
II.
Appellant next argues that the district court erred by ruling that Dr. Benson’s expert
testimony was inadmissible and by subsequently granting BNSF’s motion for summary
judgment on the ground that appellant could not establish medical causation.
Minnesota appellate courts review a district court’s evidentiary rulings for an abuse
of discretion. Doe 76C v. Archdiocese of St. Paul, 817 N.W.2d 150, 164 (Minn. 2012); see
also Kedrowski v. Lycoming Engines , ___ N.W.2d ___, ___, 20 19 WL 4282016, at * 8
(Minn. Sept. 11, 2019) . A district court abuses its discretion when “its decision is based
on an erroneous view of the law or is inconsistent with the facts in the record.” Hudson v.
Trillium Staffing, 896 N.W.2d 536, 540 (Minn. 2017) (quotation omitted).
Minn. R. Evid. 702 provides:
If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion or otherwise. The
opinion must have foundational reliability. In addition, if the
opinion or evidence involves novel scientific theory, the
proponent must establish that the underlying scientific
evidence is generally accepted in the relevant scientific
community.

For expert testimony to be admissible under rule 702, a proponent must show that
the testimony passes a four-part test: “(1) [t]he witness must qualify as an expert; (2) the
expert’s opinion must have foundational reli ability; (3) the expert testimony must be

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helpful to the trier of fact; and (4) if the testimony involves a novel scientific theory, it
must satisfy the Frye-Mack standard.” Doe 76C, 817 N.W.2d at 164. Appellant focuses
on the second requirement, arguing that the district court erred by finding that Dr. Benson’s
opinion lacked foundational reliability. This court reviews a district court’s ruling
regarding foundational reliability for an abuse of discretion. Id.
The supreme court has outlined three st eps that a district court must take in
analyzing the foundational reliability of expert testimony. Id. at 167-68. “First, the district
court must analyze the proffered testimony in light of the purpose for which it is being
offered.” Id. “Second, the court must consider the underlying reliability, consistency, and
accuracy of the subject about which the expert is testifying.” Id. at 168. Finally, the district
court must analyze whether “the proponent of evidence about a given subject [has] show[n]
that it is reliable in that particular case.” Id. “As long as the district court considered the
relevant foundational reliability factors, [an appellate court] will not reverse its evidentiary
finding absent an abuse of discretion.” Id.; see also Kedrowski, 2019 WL 4282016, at *7.
Appellant offered expert testimony from Dr. Benson that he suffered injuries to his
neck, back and spine, and shoulder, as well as a traumatic brain injury and post -traumatic
stress disorder, all as a result of the accident. The district court characterized Dr. Benson’s
opinion as linking the failure of the seat -recliner mechanism to appellant’s injuries. The
district court excluded this opinion, reasoning that it required “an analysis of the forces
sustained by [appellant] in th e accident as a result of the alleged seat -latch mechanism
failure” and that “Dr. Benson does not have the proper qualifications to offer such opinion
testimony” because he did not have the training or experience necessary to provide the

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“combination of medical, biomedical, and design testimony” required to establish a causal
link between the seat -latch mechanism failure and the injuries. The district court also
concluded that Dr. Benson’s opinion lacked foundation, reasoning as follows:
Dr. Benson opines that all of [appellant’s] injuries are a
result of [appellant’s] head hitting the rear window because of
the alleged seat mechanism failure. Dr. Benson does not
identify how all of those injuries could have been caused by
[appellant’s] head striking the r ear window nor does it appear
that Dr. Benson considered whether [appellant’s] injuries
would have resulted regardless of the alleged seat mechanism
failure. Dr. Benson does not consider possible alternative
explanations for [appellant’s] head striking the rear window of
the vehicle. Dr. Benson’s opinions do not have mechanical or
biomechanical testimony reg arding whether the alleged seat
recline was the reason [appellant’s] head struck the window.
Without that foundation, the court finds that Dr. Benson cannot
establish causation between the alleged seat -latch mechanism
failure and [appellant’s] injuries and that Dr. Benson’s
opinions lack the foundation required to be admissible.

Appellant argues that the district court abused its discretion by excludi ng Dr.
Benson’s expert opinion because it “failed to analyze the proffered testimony in light of
the purpose for which it was being offered.” He argues that “Dr. Benson offered an opinion
as to whether [appellant’s] head breaking the truck’s rear window p layed a part in his
injuries, and he concluded it was a contributing factor,” and that Dr. Benson “was not asked
to determine whether the seat collapsed as determined by Muzzy or whether the seat acted
in a normal fashion as determined by [BNSF’s expert].” We agree.
The district court analyzed Dr. Benson’s testimony as purporting to establish a
causal link between the seat -latch mechanism’s failure and appellant’s injuries, but that
was not the purpose for which the testimony was offered. Dr. Benson stated in an affidavit

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that (1) he was one of appellant’s treating physicians, (2) based on information appellant
provided, “the collision on August 4, 2012 caused his head to strike and break the rear
window of the truck,” and (3) based on Dr. Benson’s treatme nt of appellant, training, and
experience, the act of appellant “striking and breaking the rear window of the truck
contributed to the injuries that he sustained.”
Consistent with that affidavit, at the motion hearing before the district court on
BNSF’s motion to exclude, appellant’s counsel stated that “Dr. Benson is not going to be
testifying that there was a defective seat recline mechanism,” and that he instead would be
limiting his testimony to an opinion that appellant’s “striking and breaking of the rear
window of the truck contributed to the injuries that he sustained.”
At oral argument, appellant further clarified that Dr. Benson’s testimony was based
on appellant’s medical history and Dr. Benson’s exam and was not intended to establish
whether or how the seat-latch mechanism failed. Appellant also stated that Dr. Benson’s
testimony was not based on Muzzy’s expert opinion, but rather was based on appellant’s
medical history and the doctor’s role as appellant’s treating physician.
In sum, the district court erred by failing to analyze Dr. Benson’s testimony in light
of the purpose for which it was offered, by excluding Dr. Benson’s testimony, and by
granting summary judgment for BNSF based on appellant’s inability to provide evidence
of medical causation. We reverse and remand to the district court.1
Reversed and remanded.

1 In light of our decision in this case, BNSF’s claims against the Lees are reinstated.