Opinion
8:20-cv-00315-JFB-SMB
03-10-2022
John Baker, Plaintiff, v. Union Pacific Railroad Co., Defendant.
NICHOLS KASTER, PLLP James H. Kaster (MN #53946) Charles A. Delbridge (MN #386639) Neil D. Pederson (MN #0397628) ATTORNEYS FOR PLAINTIFF UNION PACIFIC RAILROAD COMPANY, Defendant, Scott Parrish Moore (NE #20752) Allison D. Balus (NE #23270) David P. Kennison (NE #25510) BAIRD HOLM LLP
NICHOLS KASTER, PLLP
James H. Kaster (MN #53946)
Charles A. Delbridge (MN #386639)
Neil D. Pederson (MN #0397628)
ATTORNEYS FOR PLAINTIFF
UNION PACIFIC RAILROAD COMPANY, Defendant,
Scott Parrish Moore (NE #20752)
Allison D. Balus (NE #23270)
David P. Kennison (NE #25510)
BAIRD HOLM LLP
ORDER ON PRETRIAL CONFERENCE
Susan M. Bazis, United States Magistrate Judge
A final pretrial conference was held on the 10th day of March 2022. Appearing for the parties as counsel were:
Plaintiff: James H. Kaster and Neil D. Pederson
Defendant: Scott P. Moore and David P. Kennison
(A) Exhibits. See attached Exhibit Lists.
Caution: Upon express approval of the judge holding the pretrial conference for good cause shown the parties may be authorized to defer listing of exhibits or objections until a later date to be specified by the judge holding the pretrial conference. The mere listing of an exhibit on an exhibit list by a party does not mean it can be offered into evidence by the adverse party without all necessary evidentiary prerequisites being met.
(B) Uncontroverted Facts. The parties have agreed that the following may be accepted as established facts for purposes of this case only:
1. Defendant Union Pacific Railroad Company (“Union Pacific”) is an “employer” for purposes of Title I of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. (“ADA”).
2. Plaintiff John Baker (“Baker”) is an “employee” as defined by the ADA.
3. Baker is an individual residing in Little Rock, Arkansas.
4. Union Pacific hired Baker on May 17, 2004. Previously, Baker worked for Union Pacific in 1995.
5. Baker worked as a Switchman/Hostler.
(C) Controverted and Unresolved Issues. The issues remaining to be determined and unresolved matters for the court's attention are:
Plaintiff's Claims:
1. ADA: Disparate Treatment
a. Plaintiff's Position:
i. Under 42 U.S.C. § 12112(b)(6) (unlawful screening)
1. Whether Baker can meet his burden to show that he has or had a record of disability, or perceived disability under the ADA
2. Whether Baker can meet his burden to show that Union Pacific uses a qualification standard or selection criteria that screens out or tends to screen out individuals with disabilities.
3. Whether Baker can meet his burden to show that he was screened out of employment as a result of the qualification standard or selection criteria.
4. Contrary to Defendant's untimely argument set forth below, subsection 12112(b)(6) supports both disparate treatment and disparate impact claims. First, the plain language of subsection 12112(b)(6) contemplates both claims. It prohibits “using qualification standards [] that screen out or tend to screen out and individual with a disability. Id. (emphasis added). The “screen out or tend to screen out” dichotomy cements the existence of both types of claims, and contemplates situations where plaintiffs claim a facially discriminatory policy (“screens out”) or a facially neutral one with an adverse impact (“tends to screen out”). Cf. § 12112(b)(3)(A) (prohibiting discrimination by “utilizing standards, criteria, or methods of administration that have the effect of discrimination on the basis of disability”) (emphasis added). Second, supreme court jurisprudence supports this conclusion. Raytheon Co. v. Hernandez, 540 U.S. 44, 52 (2003) (citing (b)(6) as an example of an ADA disparate treatment claim); see also EEOC v. Kronos, Inc., 694 F.3d 351, 357 (3d Cir. 2012) (tests that “screen out or tend to screen out” persons with disabilities “may be impermissible under both disparate treatment and disparate impact theories”); Bates v. United Parcel Serv., Inc., 511 F.3d 974, 988, 995 n.10 (9th Cir. 2007) (en banc) (Subsection (b)(6) claim was based on a disparate treatment theory because it was “a facially discriminatory qualification standard [that focused] directly on an individual's disabling or potentially disabling condition”); Leskovisek v. Ill. DOT, 2020 WL 7323840, *13 (C.D. Ill.Dec. 11, 2020) (Subsection 12112(b)(6) screening claim can be based on either disparate treatment or disparate impact). 5. As to Defendant's arguments pertaining to its motion to bifurcate, Plaintiff disputes. Plaintiff will respond in his opposition to Defendant's motion, including whether individuals with “regarded as” disability claims can bring disparate impact claims. Furthermore, the Court has already ruled Plaintiff has both a “record of” disability claim and a “regarded as” disability claim. Baker v. Union Pac. R.R. Co., __ F.Supp.3d __, 2022 WL 159283, at *8 (D. Neb. Jan. 18, 2022) (“Baker has presented evidence from which a jury could conclude that he has a record of disability or was regarded as disabled.”)
ii. Under 42 U.S.C. § 12112(a)
1. Whether Baker can meet his burden to show that he has or had record of disability, or perceived disability under the ADA.
2. Whether Baker can meet his burden to show that he was qualified to do the job he was already doing.
3. Whether Baker can meet his burden to show his record of or perceived disability was a motivating factor in Union Pacific's decision to remove him from his job and not allow him to return for a period of approximately one year. See Oehmke v. Medtronic, Inc., 844 F.3d 748, 756 (8th Cir. 2016) (“We apply a mixed-motive causation standard, allowing claims based on an adverse employment action that was motivated by both permissible and impermissible factors.”).
Plaintiff disputes Defendant's characterization below that the Plaintiff's date of adverse action was February 1, 2015. (See Pl.'s Br. Opp. Summ. J., ECF No. ECF No. 373.)
b. Defendant's Position:
i. Under 42 U.S.C. § 12112(b)(6).
1. Plaintiff cannot assert a disparate treatment claim under 42 U.S.C. § 12112(b)(6), which is a statutory provision for disparate impact. See Carrillo v. Union Pacific R.R. Co., No. EP-21-CV-00026-FM, 2021 WL 3023407, at *3 (W.D. Tex. July 16, 2021) (explaining that a claim against Union Pacific alleging the same policy at issue here violated § 12112(b)(6) is a disparate impact claim); Boersig v. Union Elec. Co., 219 F.3d 816, 822 (8th Cir. 2000) (discussing § 12112(b)(6) claim as “invoking a disparate-impact theory of ADA liability”); Davidson v. Am. Online, Inc., 337 F.3d 1179, 1189 (10th Cir. 2003) (“[Under a disparate impact theory, discrimination is defined as including the use of “qualification standards ... or other selection criteria that screen out or tend to screen out an individual with a disability.... 42 U.S.C. § 12112(b)(6).”). Allmond v. Akal Sec., Inc., No. CIV.A. 4:05CV96 HL, 2007 WL 2904023, at *6 (M.D. Ga. Sept. 28, 2007), aff'd, 558 F.3d 1312 (11th Cir. 2009) (“Claims brought pursuant to § 12112(b)(6) are treated as disparate impact claims.”) (citing cases); Coons v. BNSF Ry. Co., 268 F.Supp.3d 983, 987 (D. Minn. 2017) (same); Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 171 (2d Cir. 2006) (distinguishing claims alleging discriminatory application of qualification standards from disparate-treatment claims); Equal Emp. Opportunity Comm'n v. BNSF Ry. Co., No. C14-1488 MJP, 2016 WL 98510, at *5 (W.D. Wash. Jan. 8, 2016), aff'd, 902 F.3d 916 (9th Cir. 2018), as amended (Sept. 12, 2018) (“In fact, no Ninth Circuit case or district court case within the Ninth Circuit … has accepted § 12112(b)(6) as the standard for a claim made on the basis of disparate treatment.”). The key element of a disparate treatment claim is “discriminatory intent.” Peebles v. Potter, 354 F.3d 761, 766 (8th Cir. 2004).
2. As explained in Union Pacific's brief in support of motion to bifurcate, Plaintiff is not entitled to a jury trial on his disparate impact claim. Further, Union Pacific maintains that an individual who is only disabled under the “regarded as” prong cannot establish a disparate impact claim as a matter of law.
3. If the Court finds that Plaintiff can assert a disparate treatment claim under § 12112(b)(6), the following must be proved:
a. Whether Baker can meet his burden to show that he has a record of disability or perceived disability under the ADA.
b. Whether Baker can meet his burden to show that he was qualified to perform the essential functions of the Switchman position at the time of the adverse employment decision.
c. Whether Baker can meet his burden to show that Union Pacific uses a qualification standard or selection criteria that screens out or tends to screen out qualified individuals with disabilities.
d. Whether Baker can meet his burden to show that the qualification standard or selection criteria was pretext for unlawful discrimination and discriminatory intent was the but for cause of Union Pacific's decision to issue temporary work restrictions.
ii. Under 42 U.S.C. § 12112(a).
1. Whether Baker can meet his burden to show that he has a record of disability or perceived disability under the ADA.
2. Whether Baker can meet his burden to show that he was qualified to perform the essential functions of the Switchman position at the time of the adverse employment decision.
Defendant's position is that the true “adverse” employment decision did not occur until February 1, 2015, the date on which the Plaintiff's treating physician recommended his return to work.
3. Whether Baker can meet his burden to show that discriminatory intent was the but for cause of Union Pacific's decision to issue temporary work restrictions.
2. ADA: Disparate Impact
a. Plaintiff's Position:
i. Whether Baker can meet his burden to show that Union Pacific uses employment standards or criteria that have a disparate impact on individuals with disabilities.
ii. Whether Baker can meet his burden to show that Union Pacific removed him from service and did not allow him to return because of such employment standards or criteria.
iii. As to Defendant's arguments pertaining to its motion to bifurcate, Plaintiff disputes. Plaintiff will respond in his opposition to Defendant's motion, including whether individuals with “regarded as” disability claims can bring disparate impact claims. Furthermore, the Court has already ruled Plaintiff has both a “record of” disability claim and a “regarded as” disability claim. Baker v. Union Pac. R.R. Co., __ F.Supp.3d __, 2022 WL 159283, at *8 (D. Neb. Jan. 18, 2022) (“Baker has presented evidence from which a jury could conclude that he has a record of disability or was regarded as disabled.”)
b. Defendant's Position:
i. As explained in Union Pacific's brief in support of motion to bifurcate, Plaintiff is not entitled to a jury trial on his disparate impact claim. Further, Union Pacific maintains that an individual who is only disabled under the “regarded as” prong cannot establish a disparate impact claim as a matter of law.
ii. If the Court allows a disparate impact claim:
1. Whether Baker can meet his burden to show that he has a record of disability or perceived disability under the ADA.
2. Whether Baker can meet his burden to show that he was qualified to perform the essential functions of the Switchman position at the time of the adverse employment decision.
3. Whether Baker can meet his burden to show that Union Pacific uses a qualification standard or selection criteria that screens out or tends to screen out qualified individuals with disabilities.
4. Whether Baker can meet his burden to show that the challenged standard or criteria had an adverse impact on Baker;
5. Whether Baker can meet his burden to show a causal relationship between the challenged standard or criteria and a disparate impact on qualified individuals with disabilities.
3. ADA: Failure to Accommodate
Plaintiff disputes Defendant's assertion below that Plaintiff cannot pursue his “record of” disability claim. The Court has already ruled Plaintiff has both a “record of” disability claim and a “regarded as” disability claim. Baker v. Union Pac. R.R. Co., __ F.Supp.3d __, 2022 WL 159283, at *8 (D. Neb. Jan. 18, 2022) (“Baker has presented evidence from which a jury could conclude that he has a record of disability or was regarded as disabled.”).
i. Whether Union Pacific had notice that Baker required a reasonable accommodation.
ii. Whether Baker can meet his burden to show that he has or had a record of disability, or perceived disability under the ADA.
iii. Whether Baker can meet his burden to show there was a reasonable accommodation available that would have allowed him to continue work for Union Pacific.
Union Pacific reasserts that the only avenue for Baker to establish he is “disabled” under the ADA is under the “regarded as” prong, and as a result, he is not entitled to any reasonable accommodation.
i. Whether Baker can meet his burden to show he is a person with a record of a disability.
ii. Whether Baker can meet his burden of showing he requested a reasonable accommodation that is related to his alleged “record of” disability
iii. Whether Baker can meet his burden to show that there was a reasonable accommodation available that would have allowed him to perform the essential functions of the Switchman position, or if Baker requested an alternative position, that a vacant position existed for which he was qualified.
Defendant's Defenses:
1. Direct Threat:
a. Plaintiff's Position:
i. Whether Defendant can meet its burden to show Plaintiff posed a direct threat to the health or safety of himself or others in the workplace; and
ii. Whether Defendant can meet its burden to show such direct threat could not be eliminated by reasonable accommodation.
b. Defendant's Position:
i. Whether Union Pacific can meet its burden to show that its determination that Baker was a direct threat was based on a reasonable medical judgment relying on the most current medical knowledge and/or on the best available objective evidence, considering factors such as (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm. Union Pacific need not prove that Baker was a direct threat, but only that its medical judgment was objectively reasonable.
2. Business Necessity:
a. Plaintiff's position:
If Union Pacific uses a qualification standard or selection criteria that screens out or tends to screen out individuals with disabilities, whether Union Pacific can meet its burden to show that the standard, criteria, or policy is uniformly applied, job-related, consistent with business necessity, and cannot be met by Plaintiff.
b. Defendant's position:
Whether Union Pacific can meet its burden to show that issuing functional work restrictions on Baker was job-related and consistent with business necessity.
3. Good Faith:
a. Plaintiff's position:
i. Plaintiff disputes that a good faith defense is available for Defendant in this case.
ii. To the extent such a defense is available, Defendant has the burden to show that it made a good faith effort to identify and make a reasonable accommodation that would provide Plaintiff with an equally effective opportunity.
Plaintiff disputes Defendant's assertion below that Plaintiff cannot pursue his “record of” disability claim. The Court has already ruled Plaintiff has both a “record of” disability claim and a “regarded as” disability claim. Baker v. Union Pac. R.R. Co., __ F.Supp.3d __, 2022 WL 159283, at *8 (D. Neb. Jan. 18, 2022) (“Baker has presented evidence from which a jury could conclude that he has a record of disability or was regarded as disabled.”).
b. Defendant's position:
i. Whether Union Pacific can show that it made a good faith effort to identify and make a reasonable accommodation and as a result, compensatory and punitive damages are not warranted.
Union Pacific reasserts that the only avenue for Baker to establish he is “disabled” under the ADA is under the “regarded as” prong, and as a result, he is not entitled to any reasonable accommodation.
Damages:
As to Defendant's arguments pertaining to the scope of damages for his disparate impact claims, Plaintiff disputes. Plaintiff will respond in his opposition to Defendant's motion to bifurcate.
1. Whether Baker can meet his burden to prove he has been damaged as a result of Union Pacific's conduct, including but not limited to back wages, front wages, compensatory damages and/or punitive damages, and the amounts of any such damages.
2. Whether Union Pacific can meet its burden of proof to show that Baker failed to mitigate his damages.
3. Whether Baker can demonstrate by evidence that Union Pacific's conduct establishes the right to punitive damages.
Defendant's position:
Damages to be decided by the jury if Plaintiff prevails on his disparate treatment and/or reasonable accommodation claims:
As Union Pacific will explain in a forthcoming motion to bifurcate, Baker is not entitled to compensatory or punitive damages on his disparate impact claim.
1. Whether Baker can meet his burden to prove he has been damaged as a result of Union Pacific's conduct, including back wages, front wages, compensatory damages and/or punitive damages, and the amounts of any such damages.
2. Whether Union Pacific can meet its burden of proof to show that Baker failed to mitigate his damages, if any.
3. Whether Baker can establish the right to punitive damages by showing Union Pacific acted with malice or reckless indifference to his right not to be discriminated against on the basis of disability and, if proved, the amount of punitive damages.
For the Court
1. Pending motions in limine.
2. Union Pacific's forthcoming Motion to Bifurcate and Motion to Recuse.
3. Plaintiff's post trial Motion for Equitable Relief.
(D) Witnesses. All witnesses, including rebuttal witnesses, expected to be called to testify by plaintiff, except those who may be called for impeachment purposes as defined in NECivR 16.2(c) only, are:
See Attached Plaintiff's Witness List
All witnesses expected to be called to testify by defendant, except those who may be called for impeachment purposes as defined in NECivR 16.2(c) only, are:
See Attached Defendant's Witness List
It is understood that, except upon a showing of good cause, no witness whose name and address does not appear herein shall be permitted to testify over objection for any purpose except impeachment. A witness who has been identified as offering testimony solely to establish foundation for an exhibit shall not be permitted to testify for any other purpose, over objection, unless such witness has been disclosed pursuant to Federal Rule of Civil Procedure 26(a)(3). A witness appearing on any party's witness list may be called by any other party.
Note: Defendant's expert witness, Dr. Matthew Rizzo, is only available on the morning of Friday, April 8, 2022 due to travel conflicts.
(E) Expert Witnesses' Qualifications. Experts to be called by the parties and their qualifications are:
1. Dr. Kevin Trangle - see attached CV.
2. Dr. Michael Devereaux - see attached CV.
3. Melissa Snelson - see attached CV.
4. Dr. Matthew Rizzo - see attached CV
The parties may also call some or all of Plaintiff's treating doctors. See Plaintiff's and Defendant's respective Witness List.
(F) Voir Dire. Counsel have reviewed Federal Rule of Civil Procedure 47(a) and NECivR 47.2(a) and suggest the following with regard to the conduct of juror examination:
The parties request that the Court allow the submission of voir dire questions no later than five (5) working days prior to the first day of trial and that the Court conduct a preliminary examination of prospective jurors, with counsel for both parties asking follow-up questions.
(G) Number of Jurors. Counsel have reviewed Federal Rule of Civil Procedure 48 and NECivR 48.1 and plaintiff suggests that this matter be tried to a jury composed of eight (8) members and defendant suggests that this matter be tried to a jury composed of twelve (12):
(H) Verdict. The parties will not stipulate to a less-than-unanimous verdict.
(I) Briefs, Instructions, and Proposed Findings. Counsel have reviewed NECivR 39.2(a), 51.1(a), and 52.1, and suggest the following schedule for filing trial briefs, proposed jury instructions, and proposed findings of fact, as applicable:
Proposed jury instructions, trial briefs and proposed findings of fact shall be filed five (5) working days before the first day of trial.
(J) Demonstratives. Any demonstrative is to be disclosed to the opposing party by 9:00 a.m. on the business day before it is intended to be used.
(K) Witnesses. The parties agree to identify witnesses to be called to testify by: the close of the preceding business day before they will testify.
(L) Other. The parties shall exchange deposition designations by April 1, 2022, counter-designations and objections to designations by April 8, 2022, and objections to counter-designations by April 15, 2022.
(M) Length of Trial. Counsel estimates the length of trial will consume not less than 4 day(s), not more than 5 day(s), and probably about 5 day(s).
The parties propose to conduct direct examination of the witnesses Plaintiff calls in his case that Defendant has listed as its witnesses rather than recalling witnesses during the Defendant's case.
(N) Trial Date. Trial was set for April 4, 2022 and is being reset for June 14, 2022.
(O) Electronic Devices.
Karla Pathmann, paralegal for attorneys at Nichols, Kaster Law Firm, 80 South 8th Street, 47000 IDS Center, Minneapolis, Minnesota, shall be allowed to bring laptops, cellphone and an iPad into the courtroom from June 14, 2022 through June 20, 2022.
Sherick Francois, paralegal for attorneys at Nichols, Kaster Law Firm, 80 South 8th Street, 47000 IDS Center, Minneapolis, Minnesota, shall be allowed to bring laptops, cellphone and an iPad into the courtroom from June 14, 2022 through June 20, 2022.
Casey Grennan, paralegal for attorneys at Baird Holm Law Firm, 1700 Farnam Street, Suite 1500, Omaha, Nebraska, shall be allowed to bring laptops, cellphone and an iPad into the courtroom from June 14, 2022 through June 20, 2022.
Kristine Krupka, paralegal for attorneys at Baird Holm Law Firm, 1700 Farnam Street, Suite 1500, Omaha, Nebraska, shall be allowed to bring laptops, cellphone and an iPad into the courtroom from June 14, 2022 through June 20, 2022.
Sara Littleton, paralegal for attorneys at Baird Holm Law Firm, 1700 Farnam Street, Suite 1500, Omaha, Nebraska, shall be allowed to bring laptops, cellphone and an iPad into the courtroom from June 14, 2022 through June 20, 2022.
Jay Everett, defendant's corporate representative, shall be allowed to a cellphone into the courtroom from June 14, 2022 through June 20, 2022.
PLAINTIFF'S EXHIBIT LIST (W/ DEFENDANT'S OBJECTIONS)
Pursuant to the Court's Trial Setting Order (ECF No. 361), Plaintiff John Baker submits the following list of trial exhibits for the trial scheduled to begin on or about April 4, 2022.
Defendant's Objections:
F= Foundation
A= Authenticity
R= Relevance
403= Fed.R.Evid. 403
702/703 = Fed.R.Evid. 702 and/or 703
| PLF NO. | DEF NO. | DESCRIPTION | BEG BATES NO. / DEPO EX. NO. | OFF | OBJ | RC VD | NOT RCVD | DATE |
| 1 | 2004-04-12 Employment Application File | UP_B AKERPHASEII440388 | F, A, R | |||||
| 2 | 2005-01 Medical Standards for Railroad Workers | F, R, A, 403, H | ||||||
| 3 | 2014 FMCSA Medical Examiner Handbook | UP 003018 | F, R, A, 403, H | |||||
| 4 | 2009-05 Trainman Job Description Brief | 134 Baker | ||||||
| 5 | 2015-03-19 Position Description | 133 Baker, 010 Silzer | H, F, A, R | |||||
| 6 | 2013-02-15 Health and Medical Physician History | UP_Harris_431263 | H, F, A, R | |||||
| 7 | 2013-07-09 Vocational Rehabilitation Referral Form | 148 Baker | H, F, A | |||||
| 8 | 2013-10-18 HMS Process Guideline: when FFD review is needed prior TPW/RA | UP Harris 024584 | H, F, A | |||||
| 9 | 2014-10-14 Little Rock Diagnostic Medical Records | 001 Silzer | H, F, A, R | |||||
| 10 | 2014-10-15 Letter to Whom It May Concern | 135 Baker, 001 Everett, 002 Silzer | F |
| 11 | 2014-10-23 EEG Report | 003 Silzer | H, F, A, R | |
| 12 | 2014-10-31 Medical Rules | 006 Holland | F | |
| 13 | 2014-11-06 Letter to John Baker | 136 Baker, 002 Everett, 527 Trangle | F | |
| 14 | 2014-11-07 Letter to John Baker | 137 Baker, 003 Everett | F | |
| 15 | 2014-11-10 Letter to John Baker | 138 Baker, 004 Everett | F | |
| 16 | 2014-11-11 Letter to John Baker | 139 Baker, 005 Everett | F | |
| 17 | 2014-11-18 Medical Record | 004 Silzer | H, F, A, R | |
| 18 | 2014-11-24 Medical Record | 005 Silzer | H, F, A, R | |
| 19 | 2015-01-06 Medical Record | 006 Silzer | H, F, A, R | |
| 20 | 2015-01-06 Return to Work Letter | 140 Baker, 007 Silzer | H, F, A, R | |
| 21 | 2015-01-13 Employment Application | 154 Baker | F, A, R | |
| 22 | 2015-01-15 Medical Records sent to UPRR | 141 Baker, 007 Goldstein | H, F, A, R | |
| 23 | 2015-01-19 Letter to John Baker | 142 Baker, 006 Everett | F | |
| 24 | 2015-01-21 Job Posting - Risk Mgmt Rep Trainee | 153 Baker | F | |
| 25 | 2015-01-29 Email re: Arkansas Cardiology Medical Records | 167 Baker | F | |
| 26 | 2015-02-03 Medical Records sent to UPRR | 143 Baker, 006 Goldstein | H, F, A, R | |
| 27 | 2015-02-03 Medical Records sent to UPRR | D-5 Devereaux | H, F, A, R | |
| 28 | 2015-02-03 Medical Records sent to UPRR | D-3 Devereaux | H, F, A, R | |
| 29 | 2015-02-13 Letter to John Baker | 144 Baker, 007 Everett, 528 Trangle | F | |
| 30 | 2015-02-24 Medical Records sent to UPRR | 145 Baker, D-4 Devereaux, 009 Goldstein | H, F, A, R | |
| 31 | 2015-02-27 Letter to John Baker | UP 005211 | H, F, A, R | |
| 32 | 2015-03-02 Letter to John Baker | 146 Baker, 008 Everett | F | |
| 33 | 2015-03-04 Supplemental Doctor's Statement | 003 Holland | H, F, A, R | |
| 34 | 2015-03-05 Letter to John Baker | 147 Baker, 009 Everett | F | |
| 35 | 2015-03-20 Employment Application | 152 Baker | H, F, A, R | |
| 36 | 2015-03-30 Job Posting - ROS/Foreman in Training | 151 Baker | H, F, A, R | |
| 37 | 2015-04-06 Medical Record | 008 Silzer | H, F, A, R | |
| 38 | 2015-04-27 Draft Appendix B: Duration of Work Restrictions by Condition | UP Harris 032118 | H, F, A, R, 403 | |
| 39 | 2015-04-27 Employment Application | 150 Baker | H, F, A, R | |
| 40 | 2015-05-11 Job Posting - ROS/Foreman in Training | 149 Baker | H, F, A, R | |
| 41 | 2015-06-01 Vocational Rehabilitation Progress Report | 156 Baker | H, F, A, R | |
| 42 | 2015-06-23 Changes in work restrictions for UPRR workers with seizures | 002 Holland | H, F, A, R, 403 | |
| 43 | 2015-08-25 Charge of Discrimination | 132 Baker | H, F, A, R, 403 | |
| 44 | 2015-09-09 HR Reporting System | UP 005021 | H, F, A, R | |
| 45 | 2015-10-20 Medical Records sent to UP | 157 Baker, 009 Silzer | H, F, A, R | |
| 46 | 2015-10-29 Syncope (Fainting) Definition | UP 001089 | H, F, A, R, 403 |
| 47 | 2015-10-30 Letter to John Baker | 158 Baker, 010 Everett | F |
| 48 | 2015-11-16 Medical Comments History | D-6 Devereaux | H, F, A, R |
| 49 | 2016-01-13 Eliminated Applicant View | UP 000966 | H, F, A, R, 403 |
| 50 | 2016-03-01 Email re: Seizures 2-8-16 | UP Harris 164552 | H, F, A, R, 403 |
| 51 | Attachment to 2016-03-01 Email | UP Harris 164553 | H, F, A, R, 403 |
| 52 | 2016-03-03 Standard Wage History | 165 Baker | H, F, A, R, 403 |
| 53 | 2016-05-31 Email re: Medical Comments for Seizure Cases with attachments for Rex Raymond Randall, Adolph Bampi Rodriguez and Jessica Card | UP_Harris_ 131940 | H, F, A, R, 403 |
| 54 | 2016-07-26 HMS Clinical Procedure -Fitness-for-Duty Memos/Standard Work Restrictions | UP Harris 062458 | H, F, A, R, 403 |
| 55 | 2014-10-15 Email re: updated Std Work Restrictions - Sudden Incapacitation with attachment | UP Harris 020381 | H, F, A, R, 403 |
| 56 | 2017-05-06 Proposed JOEM Supplement: Fitness-for-Duty Guidelines for Transportation | UP Harris 311501 | H, F, A, R, 403 |
| 57 | 2020-12-08 Seniority Roster Listing | UP BAKERPHASEII 440770 | H, F, A, R |
| 58 | 2020-12-16 HR Reporting System | UP BAKERPHASEII 440356 | H, F, A, R |
| 59 | Chicot Memorial Medical Center Records | 164 Baker | H, F, A, R |
| 60 | Compilation of Medical Records | 163 Baker | H, F, A, R |
| 61 | 2018-08-10 Declaration of Alexander Wise | H, F, A, R, 403, Improper Expert Testimony | |
| 62 | eHealthsafe Dataset | UP Harris 202506 | H, F, A, R, 403, Improper Expert Testimony |
| 63 | eHealthsafe Dataset | UP Harris 238006 | H, F, A, R, 403, Improper Expert Testimony |
| 64 | 2018-02 Putative Class List in Harris, et al. v. Union Pacific Railroad Co. | H, F, A, R, 403 | |
| 65 | 2013 Form 10-K for Union Pacific Corporation | H, F, A, R, 403 | |
| 66 | 2014 Form 10-K for Union Pacific Corporation | H, F, A, R, 403 | |
| 67 | 2015 Form 10-K for Union Pacific Corporation | H, F, A, R, 403 | |
| 68 | 2016 Form 10-K for Union Pacific Corporation | H, F, A, R, 403 |
| 69 | 2021 Form 10-K for Union Pacific Corporation | H, F, A, R, 403 | |
| 70 | FMCSA Medical Examiner Handbook -No Longer in Use Page Capture | H, F, A, R, 403 | |
| 71 | 404 Error Federal Motor Carrier Safety Administration Page Capture | H, F, A, R, 403 | |
| 72 | 2013-2016 W-2s | 166 Baker | H, F, A, R |
| 73 | John Baker Year End Paystubs 2010-2020 | H, F, A, R | |
| 74 | Comparator Year End Paystubs | H, F, A, R, 403 | |
| 75 | 2017-02-24 Defendant's Answers to Plaintiffs' Interrogatories to Defendant, Set I | H, F, A, R, 403 | |
| 76 | 2017-02-24 Defendant's Responses to Plaintiffs' Requests for Production to Defendant, Set I | H, F, A, R, 403 | |
| 77 | 2017-03-21 Defendant's Supplemental Responses to Plaintiffs' Requests for Production to Defendant, Set I | H, F, A, R, 403 | |
| 78 | 2017-03-27 Defendant's Second Supplemental Responses to Plaintiffs' Requests for Production to Defendant, Set I | H, F, A, R, 403 | |
| 79 | 2017-04-20 Defendant's Second Supplemental Answers to Plaintiffs' Interrogatories to Defendant, Set I with Exhibit A | H, F, A, R, 403 | |
| 80 | 2017-05-10 Defendant's Third Supplemental Answers to Plaintiffs' Interrogatories to Defendant, Set I | H, F, A, R, 403 | |
| 81 | 2017-07-07 Defendant's Fourth Supplemental Answers to Plaintiffs' Interrogatories to Defendant, Set I | H, F, A, R, 403 | |
| 82 | 2017-10-10 Defendant's Third Set of Supplemental Responses to Plaintiffs' Requests for Production to Defendant, Set I | H, F, A, R, 403 | |
| 83 | 2017-10-10 Defendant's Fourth [sic] Supplemental Answers to Plaintiffs' Interrogatories to Defendant, Set I | H, F, A, R, 403 | |
| 84 | 2017-12-22 Defendant's Answers to Plaintiffs' Interrogatories to Defendant, Set II | H, F, A, R, 403 | |
| 85 | 2017-12-22 Defendant's Responses to Plaintiffs' Requests for Production to Defendant, Set II | H, F, A, R, 403 | |
| 86 | 2018-01-09 Defendant's First Supplemental Answers to Plaintiffs' Interrogatories to Defendant, Set II | H, F, A, R, 403 | |
| 87 | 2018-01-16 Defendant's Supplemental Responses to Plaintiffs' Requests for Production to Defendant, Set II | H, F, A, R, 403 |
| 88 | 2018-01-16 Defendant's Answers to Plaintiffs' Interrogatories to Defendant, Set III | H, F, A, R, 403 | |
| 89 | 2018-03-09 Defendant's Responses to Plaintiffs' Requests for Production to Defendant, Set III | H, F, A, R, 403 | |
| 90 | 2018-05-01 Defendant's Fourth Set of Supplemental Responses to Plaintiffs' Requests for Production to Defendant, Set I | H, F, A, R, 403 | |
| 91 | 2018-05-01 Defendant's Fifth Supplemental Answers to Plaintiffs' Interrogatories to Defendant, Set I | H, F, A, R, 403 | |
| 92 | 2018-05-04 Defendant's Responses to Plaintiffs' Requests for Production to Defendant, Set IV | H, F, A, R, 403 | |
| 93 | 2018-05-10 Defendant's Answers to Plaintiffs' Interrogatories to Defendant, Set IV | H, F, A, R, 403 | |
| 94 | 2018-07-16 Defendant's Response to Plaintiffs' Requests for Production to Defendant, Set V | H, F, A, R, 403 | |
| 95 | 2019-03-01 Defendant's Supplemental Answers to Plaintiffs' Interrogatories to Defendant, Set IV | H, F, A, R, 403 | |
| 96 | 2020-12-16 Defendant's Responses to Plaintiff's Request for Production of Documents, Set VI | H, F, A, R, 403 | |
| 97 | 2020-12-16 Defendant's Answers to Plaintiff's Interrogatories, Set VI | H, F, A, R, 403 | |
| 98 | Dr. Michael Devereaux Curriculum Vitae | ||
| 99 | Dr. Kevin Trangle Curriculum Vitae | ||
| 100 | Melissa Snelson Curriculum Vitae | ||
| 101 | 2009-02-04 Consulting Agreement | UP Harris 409762 | H, F, A, R, 403 |
| 102 | 2009-10-01 Scope of Service for Associate Medical Director - Case Management Review Services | UP Harris 414314 | H, F, A, R, 403 |
| 103 | 2009-11-06 AMD Contract Recommendations | UP Harris 419969 | H, F, A, R, 403 |
| 104 | 2012-01-12 Letter to Dr. John Charbonneau | UP Harris 409779 | H, F, A, R, 403 |
| 105 | 2014-04-15 Letter to Dr. John Charbonneau | UP Harris 409792 | H, F, A, R, 403 |
| 106 | 2021 Rizzo Fee Schedule | 001 Rizzo | H, F, A, R, 403 |
| 107 | 2012-01-25 Email re: Consulting agreement with UNMC with attachment | UP_Harris_120841 | H, F, A, R, 403 |
| 108 | 2012-06-22 Email re: contract draft documents with attachment | UP_Harris_095964 | H, F, A, R, 403 |
| 109 | 2014-02-25 Memo re: Scope of Work for - consulting contract with UNMC Physicians | UP Harris 163943 | H, F, A, R, 403 |
| 110 | 2015-11-02 Email re: Neurology Record Review Request Letter to Dr. Wilson Template 2013-10-28 Draft with attachment | UP Harris 150815 | H, F, A, R, 403 |
| 111 | 2020-11-25 Medical Comments History | UP BAKERPHASEII 440750 | H, F, A, R, 403 |
Plaintiff reserves the right to amend this exhibit list prior to trial and at trial itself based upon Defendant's exhibit list, based upon the Court's rulings before and during trial, based upon the witnesses and/or evidence presented at trial, in order to impeach witnesses or to refresh recollection, and for such other good cause as may be determined by the Court. Plaintiff also reserves the right to object to the admissibility of documents that may be offered by Defendant at the trial, irrespective of whether the document is identified on the exhibit list.
Plaintiff reserves the right to amend and supplement this Exhibit List to include inadvertent omissions, demonstrative exhibits and documents to be used for impeachment and/or rebuttal up until and through the trial of this case.
DEFENDANT'S TRIAL EXHIBIT LIST
OBJECTIONS
R: Relevance
H: Hearsay
A: Authenticity
O: Other (specify)
| PLF | DF | DESCRIPTION | OFF | OBJ | RCVD | NOT RCVD | DATE | MAY OFFER |
| 201. | Train Crew Job Description Baker Dep. Ex. 133; SJ Ex. 1B UP001076-82 | |||||||
| 202. | Trainman Job Description Baker Dep. Ex. 134; SJ Ex. 1C UP008269-71 | |||||||
| 203. | Medical records from Little Rock Diagnostic Clinic dated October 14, 2014 Baker Dep. Ex. 145; SJ Ex. 1D UP000707-11 | |||||||
| 204. | Letter from Dr. Silzer dated October 16, 2014 Baker Dep. Ex. 135; SJ Ex. 1F UP001084 | |||||||
| 205. | Letter from Pam Pachaud to Baker dated November 6, 2014 Baker Dep. Ex. 136; SJ Ex. 1G UP000366-67 |
| 206. | Medical records from Little Rock Diagnostic Clinic dated January 6, 2015 Baker Dep. Ex. 141; SJ Ex. 1H UP000739-53 | |
| 207. | Letter from Dr. Silzer dated January 6, 2015 Baker Dep. Ex. 140; SJ Ex. 1I UP000761 | |
| 208. | Letter from Pam Pachaud to Baker dated January 19, 2015 Baker Dep. Ex. 142; SJ Ex. 1J UP000357-58 | |
| 209. | Letter to Baker from Everett dated March 2, 2015 Baker Dep. Ex. 146; SJ Ex. 1K UP000690-91 | |
| 210. | Letter from Owens to Baker dated March 5, 2015 Baker Dep. Ex. 147; SJ Ex. 1L UP000686-89 | |
| 211. | Vocational Rehabilitation Progress Report Baker Dep. Ex. 156; SJ Ex. 1M UP000702-05 | |
| 212. | Medical Records from Little Rock Diagnostic Clinic dated October 16, 2015 and cover sheet Baker Dep. Ex. 157; SJ Ex. 1N UP000756-60 | |
| 213. | Arkansas Cardiology Records dated August 26, 2013 Baker Dep. Ex. 143; SJ Ex. 2A UP000716-38 (UP 005215 - UP 005237) | |
| 214. | Medical Comments History Nov. 5, 2014 - April 9, 2015 SJ Ex. 2B UP005159-164 |
| 215. | Restriction Review Form SJ Ex. 3A UP005211-13 (UP 00712 - UP 00714) | |
| 216. | Letter to Baker from Everett dated November 7, 2014 granting leave of absence Baker Dep. Ex. 137 UP005253 | |
| 217. | Letter to Baker from Pachaud dated November 10, 2014 Baker Dep. Ex. 138 UP000375-76 | |
| 218. | Letter to Baker from Everett dated November 11, 2014 granting leave of absence Baker Dep. Ex. 139 UP005190 | |
| 219. | Letter to Baker from Pachaud dated February 12, 2015 Baker Dep. Ex. 144 UP000368-69 | |
| 220. | Vocational Rehabilitation Referral Form Baker Dep. Ex. 148 UP000697 | |
| 221. | Job Applications Baker Dep Exs. 149-55 | |
| 222. | Letter to Baker from Everett dated October 30, 2015 Baker Dep. Ex. 158 UP000684-85 | |
| 223. | Chicot Memorial Medical Center Records Baker Dep. 163 HARRIS0005997-6153 | |
| 224. | Chicot Memorial Medical Center Records Baker Dep. 164 HARRIS0001643-85 |
| 225. | EEO Policies UP 001052-54 | ||
| 226. | HR Reporting System UP001056-74 | ||
| 227. | NTSB - Goodwell Report (UP 003839 - UP 003903) | R; O (403) | |
| 228. | NTSB - Arden, Nevada Accident Report (UP 003826 - UP 003838) | R; O (403) | |
| 229. | General Job Descriptions for Safety Critical Railroad jobs covered by the FRA Fitness for Duty Medical Standards (UP 002094-2102) | R; O (403) | |
| 230. | Dr. Matthew Rizzo CV | ||
| 231. | On Duty Time UP_BakerPhaseII_440517-621 | ||
| 232. | Medical Comments History May 19, 2009 - Nov. 25, 2020 UP_BakerPhaseII_440750-64 | ||
| 233. | Medical Comments History Nov. 5, 2014 - Nov. 16, 2015 UP 000346-54 | ||
| 234. | Email dated October 2, 2014 UP_Baker_PhaseII_440940 | O (untimely) | |
| 235. | Email dated February 9, 2015 UP_Baker_PhaseII_440935 | O (untimely) | |
| 236. | Email dated October 7, 2015 UP_Baker_PhaseII_440960 | O (untimely) | |
| 237. | Email dated October 8, 2015 UP_Baker_PhaseII_440941 | O (untimely) | |
| 238. | Health and Medical Services Status Update dated October 29, 2015 UP 000379 | ||
| 239. | HARRIS0001720-23 Silzer Records, April 6, 2015 Silzer Dep. Ex. 8 |
| 240. | Appendix B: Duration of Work Restrictions by Condition UP_Harris_032118-22 | ||
| 241. | Arkansas Surgical Hospital Records June 11, 2013 HARRIS0012584 - HARRIS0012595 | R; O (403) | |
| 242. | Little Rock Diagnostic Clinic, April 6, 2015, HARRIS0001720 | R; O (403) | |
| 243. | Arkansas Cardiology Records Arkansas_Cardiology_000002-14 | O (403) | |
| 244. | Plaintiff's Answers to Defendant's Interrogatories, Set I SJ Ex. 1Q | O (403) | |
| 245. | Plaintiff's Supplemental Responses to Requests for Production Baker Dep. Ex. 161 | H; O (403) | |
| 246. | Plaintiff's Second Supplemental Answers to Interrogatories, Set I Baker Dep. Ex. 162 | O (403) | |
| 247. | Plaintiff's Answers and Supplemental Response to Phase II Requests for Production served June 4, 2021 | O (403) | |
| 248. | Plaintiff's Answers to Defendant's Interrogatories, Phase II served December 11, 2020 | H; O (403) | |
| 249. | Benefits Information Baker0000011-12 | O (403) | |
| 250. | FMCSA Handbook (Do not intend to offer; rebuttal testimony only) | R; O (403) |
Defendant reserves the right to amend this exhibit list prior to trial and at trial itself based upon Plaintiff's exhibit list, based upon the Court's rulings before and during trial, based upon the witnesses and/or evidence presented at trial, in order to impeach witnesses or to refresh recollection, and for such other good cause as may be determined by the Court. Defendant also reserves the right to object to the admissibility of documents that may be offered by Plaintiff at the trial, irrespective of whether the document is identified on the exhibit list.
Defendant reserves the right to amend and supplement this Exhibit List to include inadvertent omissions, demonstrative exhibits and documents to be used for impeachment and/or rebuttal up until and through the trial of this case.
PLAINTIFF'S WITNESS LIST
Pursuant to Fed.R.Civ.P. 26(a)(3)(A)(i), and the Court's Trial Setting Order (ECF No. 361), Plaintiff John Baker submits the following list of trial witnesses for the trial scheduled to begin April 4, 2022.
Witnesses Plaintiff Expects to Call:
1. Plaintiff John Baker c/o Nichols Kaster, PLLP 80 S. 8th Street, Suite 4700 Minneapolis, MN 55402 (612) 256-3200
2. Jessica Baker c/o Nichols Kaster, PLLP 80 S. 8th Street, Suite 4700 Minneapolis, MN 55402 (612) 256-3200
3. Dr. Michael Devereaux c/o Case Western Reserve University University Hospitals Case Medical Center Department of Neurology 11100 Euclid Ave Cleveland, OH 44106 (216) 844-3591
4. Dr. Kevin Trangle c/o Kevin Trangle & Associates Paragon Center Two 6150 Parkland Blvd Cleveland, OH 44124 (612) 504 0400
5. Melissa Snelson c/o Stonehill Group, LLC 121 South Eighth, Suite 850 Minneapolis, MN 55402 (612) 436-1390
6. Dr. Robert Silzer (due to witness availability issues, Plaintiff anticipates designating deposition testimony to be read into the record) c/o Little Rock Diagnostic Clinic Neurodiagnostic Laboratory 10001 Lile Drive Little Rock, AR 72205
7. Dr. John Holland c/o Occupational and Environmental Medicine 4227 S. Meridian, Suite C, PMB 254 Puyallup, WA 98373
8. John Charbonneau c/o Union Pacific Railroad Company 1400 Douglas Street Omaha, NE 68179
9. Jay Everett c/o Union Pacific Railroad Company 1400 Douglas Street Omaha, NE 68179
10. Chad Bilson c/o Union Pacific Railroad Company 1400 Douglas Street Omaha, NE 68179
Witnesses Plaintiff May Call:
1. Alexander Wise c/o Nichols Kaster, PLLP 8 S. 8th Street, Suite 4700 Minneapolis, MN 55402 9612) 256-3200
2. Dr. Matthew Rizzo c/o Department of Neurological Sciences University of Nebraska Medical Center 988440 Nebraska Medical Center Omaha, NE 68198 (402) 559-4849
Plaintiff reserves the right to present impeachment and rebuttal witnesses, to call and examine witnesses listed on Defendant's witness list, and to present unlisted witnesses who are made necessary by developments after these disclosures and continuing throughout trial that Plaintiff could not have reasonably anticipated.
DEFENDANT'S WITNESS LIST
Pursuant to Fed.R.Civ.P. 26(a)(3)(A)(i), Defendant Union Pacific Railroad Company submits the following list of trial witnesses.
Witnesses Defendant Expects To Call :
1. Dr. John Charbonneau Union Pacific Railroad Company 1400 Douglas Street Omaha, NE 402-544-5000
2. Dr. Matthew Rizzo Department of Neurological Sciences University of Nebraska Medical Center 988440 Nebraska Medical Center Omaha, NE 68198-8440 (402) 559-8600
3. Jay Everett Union Pacific Railroad Company 1400 Douglas Street Omaha, NE 402-544-5000
4. Pam Pachaud Union Pacific Railroad Company 1400 Douglas Street Omaha, NE 402-544-5000
5. Plaintiff John Baker
Witnesses Defendant May Call :
1. Terry Owens Jacksonville, AR 72076
2. William (Frank) Sutterfield Union Pacific Railroad Company 1400 Douglas Street Omaha, NE 402-544-5000
3. Dr. Robert Silzer
4. Heather Taylor Systemdic Corp. 1089 Executive Center Dr., Ste. 105 Little Rock, AR 72211 (501) 227-5553
Additionally, Defendant reserves the right to present impeachment and rebuttal witnesses, to call and examine witnesses listed on Plaintiff's witness list, and to present unlisted witnesses who are made necessary by developments after these disclosures and continuing throughout trial that Defendant could not have reasonably anticipated.