                                                      FILED
                                                      14-0530
                                                      4/3/2015 3:44:04 PM
                                                      tex-4761027
                                                      SUPREME COURT OF TEXAS
                                                      BLAKE A. HAWTHORNE, CLERK




     NO. 14-0530
     IN THE SUPREME COURT OF TEXAS

          BNSF RAILWAY COMPANY,
                                   Petitioner,
                        v.
              JAMES E. PHILLIPS,

                                   Respondent.

              On Petition for Review
from the Second Court of Appeals, Fort Worth, Texas
                No. 02-11-00250-CV

        REPLY BRIEF ON THE MERITS


                             David E. Keltner
                             State Bar No. 11249500
                             david.keltner@kellyhart.com
                             Marianne M. Auld
                             State Bar No. 01429910
                             marianne.auld@kellyhart.com
                             Jody S. Sanders
                             State Bar No. 24051287
                             jody.sanders@kellyhart.com
                             Mary H. Smith
                             State Bar No. 24075093
                             mary.smith@kellyhart.com
                             KELLY HART & HALLMAN LLP
                             201 Main Street, Suite 2500
                             Fort Worth, Texas 76102
                             Telephone: 817.332.2500
                             Telecopier: 817.878.9280

                             ATTORNEYS FOR PETITIONER
                                           TABLE OF CONTENTS

                                                                                                                       Page

INDEX OF AUTHORITIES.................................................................................... iii
INTRODUCTION ..................................................................................................... 1

REPLY ....................................................................................................................... 1
I.       Phillips Presented No Evidence of Causation ................................................. 1

         A.        Johanning’s Testimony Constitutes No Evidence
                   of Causation ........................................................................................... 3

         B.        Kress’s Testimony Constitutes No Evidence of Causation .................. 6

         C.        Phillips’s Attempt to Distinguish This Court’s Precedent
                   Reflects a Fundamental Misunderstanding of Those Opinions ............ 7

         D.        Phillips’s Preemption Argument Rests Upon the Same
                   Misunderstanding ................................................................................ 10

         E.        BNSF Properly Preserved Its Right to Challenge the Expert
                   Testimony on Causation ...................................................................... 11

         F.        BNSF Has Neither “Concede[d] Causation” Nor “Concede[d]
                   Timeliness” .......................................................................................... 13

II.      Phillips Presented No Evidence to Support the Jury’s Finding
         of Timeliness ................................................................................................. 13

         A.        The Burden to Prove Compliance with the FELA’s
                   Timeliness Requirement Rested Squarely with Phillips ..................... 14

         B.        No Evidence Supports the Jury’s Finding on Timeliness ................... 15

         C.        Phillips’s Attempts to Distinguish BNSF’s Cited Authorities
                   are Unavailing ..................................................................................... 20




Brief on the Merits                                                                                                    Page i
                                    TABLE OF CONTENTS (cont.)

                                                                                                                    Page

III.     Phillips’s General Complaints Cannot Support a Finding
         of LIA Liability.............................................................................................. 22

IV.      The Court of Appeals Erroneously Employed Inconsistent
         Standards In Affirming Both the Jury’s Finding of Negligence
         and the Trial Court’s Failure to Submit Contributory Negligence................ 25

V.       The Court of Appeals Erroneously Affirmed Evidentiary Rulings
         That Rest Upon a Misapprehension of the Record, Destroyed BNSF’s
         Right to Cross-Examination, and Allowed Phillips’s Evidence to Go
         Unrebutted ..................................................................................................... 27

PRAYER .................................................................................................................. 30

CERTIFICATE OF COMPLIANCE ....................................................................... 32

CERTIFICATE OF SERVICE ................................................................................ 32




Brief on the Merits                                                                                                 Page ii
                                    INDEX OF AUTHORITIES


Cases:                                                                                                    Page

Abraham v. Union Pac. R.R. Co.,
233 S.W.3d 13 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) .................. 7, 8

Amoco Chems. Corp. v. Stafford,
663 S.W.2d 147 (Tex. App.—Houston [1st Dist.] 1983, no writ) .......................... 27

Billman v. Mo. Pac. R.R. Co.,
825 S.W.2d 525 (Tex. App.—Fort Worth 1992, writ denied).....................14, 15, 18

Bishop v. A.B. Auto Salvage,
No. 02-09-00314-CV, 2011 WL 5984527
(Tex. App.—Fort Worth Dec. 1, 2011, no pet.) (mem. op.) .................................... 12

BNSF R.R. Co. v. Acosta,
449 S.W.3d 885 (Tex. App.—El Paso 2014, no pet.)........................................20, 21

Bostic v. Georgia-Pacific Corp.,
439 S.W.3d 332 (Tex. 2014)...................................................................................... 2

Caudill v. CSX Transp., Inc.,
749 S.E.2d 342 (W. Va. 2013) ................................................................................. 21

Charter Oak Fire Ins. Co. v. Perez,
446 S.W.2d 580 (Tex. Civ. App.—Houston [1st Dist.] 1969, writ ref’d n.r.e) ....... 29

City of Keller v. Wilson,
168 S.W.3d 802 (Tex. 2005)..........................................................................9, 10, 18

Clay v. Union Carbide Corp.,
828 F.2d 1103 (5th Cir. 1987) ................................................................................. 19

Coastal Tankships, U.S.A., Inc. v. Anderson,
87 S.W.3d 591 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) ........................ 8




Brief on the Merits                                                                                       Page iii
                                INDEX OF AUTHORITIES (cont.)


Cases:                                                                                                       Page

Davidson v. Great Nat’l Life Ins. Co.,
737 S.W.2d 312 (Tex. 1987)..............................................................................27, 29

Dowling v. NADW Mktg., Inc.,
631 S.W.2d 726 (Tex. 1982).................................................................................... 13

Emmons v. S. Pac. Transp. Co.,
701 F.2d 1112 (5th Cir. 1983) ...........................................................................14, 15

Fashauer v. New Jersey Transit Rail Operations, Inc.,
57 F.3d 1269 (3d Cir. 1995)..................................................................................... 26

Faust v. BNSF Ry. Co.,
337 S.W.3d 325 (Tex. App.—Fort Worth 2011, pet. denied) ................................... 3

Granfield v. CSX Transp., Inc.,
597 F.3d 474 (1st Cir. 2010) .................................................................................... 14

Hardy v. Union Pac. R.R. Co.,
No. 10-CV-01880-REB-MJW, 2011 WL 5295199 (D. Colo. Nov. 2, 2011) ....... 6-7

Harvey v. CSX Transp., Inc.,
No. 92-1355, 23 F.3d 401 (4th Cir. May 5, 1994) ................................................... 15

Hines v. Consol. Rail Corp.,
926 F.2d 262 (3d Cir. 1991)....................................................................................... 8

Huckaby v. A.G. Perry & Son, Inc.,
20 S.W.3d 194 (Tex. App.—Texarkana 2000, pet. denied) .................................... 12

In re GlobalSanteFe Corp.,
275 S.W.3d 477 (Tex. 2008)................................................................................ 9, 11

In re Paoli R.R. Yard PCB Litig.,
35 F.3d 717 (3d Cir. 1994)......................................................................................... 8


Brief on the Merits                                                                                          Page iv
                                INDEX OF AUTHORITIES (cont.)


Cases:                                                                                                          Page

Inman v. Baltimore & Oh. R.R. Co.,
361 U.S. 138 (1959) ................................................................................................. 24

Johnson v. Norfolk & W. Ry. Co.,
No. 92-1719, 985 F.2d 553 (4th Cir. Jan. 28, 1993) ................................................ 15

Keane v. Ne. Ill. Commuter R.R. Corp.,
No. 01-C-43, 2002 WL 1806919 (N.D. Ill. 2002) ................................................... 25

Kelly v. Ill. Cent. R.R. Co.,
No. 08-1052, 2010 WL 271959 (C.D. Ill. Jan. 12, 2010) .......................................... 6

Lajoie v. State,
237 S.W.3d 345 (Tex. App.—Fort Worth 2007, no pet.) (mem. op.) ..................... 11

Lozano v. Lozano,
52 S.W.3d 141 (Tex. 2001) ......................................................................................18

Marathon Oil Co. v. Lunsford,
733 F.2d 1139 (5th Cir. 1984) ................................................................................. 19

Maritime Overseas Corp. v. Ellis,
971 S.W.2d 402 (Tex. 1998)................................................................................ 9, 10

Merck & Co. v. Garza,
347 S.W.3d 256 (Tex. 2011)............................................................................ 2-4, 10

Merrell Dow Pharms., Inc. v. Havner,
953 S.W.2d 706 (Tex. 1997).............................................................................. 2-4, 8

Mo. Pac. R.R. Co. v. Navarro,
90 S.W.3d 747 (Tex. App.—San Antonio 2002, no pet.).......................................... 8

Munns v. CSX Transp., Inc.,
579 F. Supp. 2d 924 (N.D. Ohio 2008).................................................................... 23


Brief on the Merits                                                                                             Page v
                                INDEX OF AUTHORITIES (cont.)


Cases:                                                                                                          Page

N-S-W Corp. v. Snell,
561 S.W.2d 798 (Tex. 1977) (orig. proceeding)...................................................... 12

Norfolk S. Ry. Co. v. Sorrell,
549 U.S. 158 (2007) ................................................................................................. 25

O’Neill v. BNSF Ry. Co.,
No. A10-1987, 2011 WL 4008276 (Minn. Ct. App. Sept. 12, 2011) ................ 23-25

Otis Spunkmeyer, Inc. v. Blakely,
30 S.W.3d 678 (Tex. App.—Dallas 2000, no pet.) ................................................. 28

Pretus v. Diamond Offshore Drilling, Inc.,
571 F.3d 478 (5th Cir. 2009) ................................................................................... 19

Roberts v. Lain,
32 S.W.3d 264 (Tex. App.—San Antonio 2000, no pet.)........................................ 14

Robinson v. BNSF Ry. Co.,
553 F. App’x 792 (10th Cir. 2014) .......................................................................... 14

Sloas v. CSX Transp., Inc.,
616 F.3d 380 (4th Cir. 2010) ................................................................................... 26

Strickland v. Norfolk S. Ry. Co.,
692 F.3d 1151 (11th Cir. 2012) .........................................................................23, 24

Synar v. Union Pac. R.R. Co.,
No. 12-99-00428-CV, 2001 WL 1263573
(Tex. App.—Tyler Oct. 17, 2001, pet. denied).................................................... 6, 24

T.O. Stanley Boot Co. v. Bank of El Paso,
847 S.W.2d 218 (Tex. 1992).................................................................................... 12




Brief on the Merits                                                                                             Page vi
                                  INDEX OF AUTHORITIES (cont.)


Cases:                                                                                                              Page

Tezak v. BNSF R.R. Co.,
No. C09-05212BHS, 2010 WL 3211693 (W.D. Wash. Aug. 12, 2010) ................. 24

Trenholm v. Ratcliff,
646 S.W.2d 927 (Tex. 1983).................................................................................... 13

United States v. Kubrick,
444 U.S. 111 (1979) ................................................................................................. 15

Urie v. Thompson,
337 U.S. 163 (1949) ...........................................................................................14, 22

Wilson v. Burlington N., Inc.,
670 F.2d 780 (8th Cir. 1982) ................................................................................... 26

Whirlpool Corp. v. Camacho,
298 S.W.3d 631 (Tex. 2009)................................................................................ 4, 10

Young v. Clinchfield R.R. Co.,
288 F.2d 499 (4th Cir. 1961) ................................................................................... 14

Rules and Statutes:

45 U.S.C. § 56 .......................................................................................................... 13

Tex. R. Civ. P. 278 ................................................................................................... 26




Brief on the Merits                                                                                                Page vii
                                 INTRODUCTION

        The Majority largely ignores this Court’s insistence that expert testimony be

reliable. The Dissent points out the Majority’s crucial omission, and two justices

who were not on the panel would have granted rehearing on that basis. Phillips’s

Response takes the issue even further—suggesting, without any supporting

authority, that the Court (1) retreat from its unambiguous prior rulings that clearly

and consistently apply expert reliability standards in all cases involving expert

evidence and (2) refuse to apply those standards in cases involving federal causes

of action. The Court already has rejected this suggestion in the context of another

federal act, and it is of great importance to the jurisprudence of this state that the

Court reaffirm its conclusion in the FELA context. Doing so will confirm this

Court’s agreement with the overwhelming majority of courts in this state and

throughout the United States that have ruled specifically on this issue.

                                       REPLY

I.      Phillips Presented No Evidence of Causation.

        This Court recently reaffirmed the reliability standard for epidemiological

studies used to prove causation:      to be legally sufficient causation evidence,

epidemiological studies must show a statistically-significant doubling of the risk at




Reply Brief on the Merits                                                       Page 1
a 95% confidence interval.1 See Bostic v. Georgia-Pacific Corp., 439 S.W.3d 332

(Tex. 2014); Merck & Co. v. Garza, 347 S.W.3d 256, 262 (Tex. 2011); Merrell

Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711-12 (Tex. 1997).                             The

application of that standard to Phillips’s case is fatal because Phillips has conceded

that his only evidence of general causation consists of studies allegedly showing a

link between vibration and spinal injuries that appear nowhere in the appellate

record. [Appellee Br. at 6; 4 RR 34-35, 37-42, 57, 65-69, 119-24; 5 RR 25-29, 49-

50; 6 RR 28-31]. In the absence of those studies, no court can evaluate their

reliability, and his experts’ opinions based upon those studies are no evidence.2

See Havner, 953 S.W.2d at 714 (“If the foundational data underlying opinion

testimony are unreliable, an expert will not be permitted to base an opinion on that

data because any opinion drawn from that data is likewise unreliable.”).

        Rather than responding to BNSF’s argument that his evidence does not

satisfy this Court’s clearly articulated reliability standards, Phillips avoids the issue

entirely—mischaracterizing the Court’s holdings in an attempt to support his

baseless claim that those opinions do not apply in FELA cases, conflating the

1
  This standard is only the bare minimum requirement; “[t]here are many other factors to
consider in evaluating the reliability of a scientific study.” Havner, 953 S.W.2d at 724.
2
  In addition to the epidemiological studies, Phillips’s expert, Dr. Eckardt Johanning, professed
to rely upon his own studies and “governmental and professional standards demonstrating [whole
body vibration] causation.” [4 RR 34-42, 57, 62-65, 67, 76-82, 91-92, 119-24; 5 RR 26-28, 49-
50]. Because those studies and standards are not in the record—and Johanning’s testimony does
not disclose their statistical significance or, in some cases, their basic conclusions—they cannot
be evaluated for reliability. [4 RR 34-35, 57, 76-82, 91-92; 5 RR 26-28].


Reply Brief on the Merits                                                                   Page 2
wholly distinct concepts of sufficiency and reliability, and ignoring more than two

dozen cases BNSF cited that uniformly reject Phillips’s position. Because Phillips

failed to present legally sufficient causation evidence, and the court of appeals’

inexplicable decision to affirm the jury’s causation finding conflicts with Havner,

Garza, and Bostic, this Court should reverse and render judgment for BNSF.

        A.      Johanning’s Testimony Constitutes No Evidence of Causation.

        Phillips was required to show both general and specific causation—that

exposure to vibration could cause his injuries and that exposure to vibration did

cause his injuries. Johanning’s testimony failed to prove either. Faust v. BNSF

Ry. Co., 337 S.W.3d 325, 333 (Tex. App.—Fort Worth 2011, pet. denied).

        Johanning’s testimony is no evidence of general causation because Phillips

failed to prove that the epidemiological evidence underlying Johanning’s opinions

satisfies the reliability standards pronounced by this Court. Texas law requires that

an epidemiological study used to prove causation must show a doubling of the risk

at a statistically significant confidence level.   Garza, 347 S.W.3d at 265-66;

Havner, 953 S.W.2d at 718-20. However, the record in this case contains neither

the studies that form the basis for Johanning’s opinions nor testimony concerning

their statistical significance. Because the Court cannot evaluate the reliability of

Johanning’s general causation testimony in the absence of such information, these

omissions are fatal.



Reply Brief on the Merits                                                      Page 3
        Phillips attempts to sidestep his lack of proof by arguing that nothing

required him to introduce the studies into evidence. [Resp. Br. at 28-29]. Phillips

misses the point.           The question is whether Phillips demonstrated the studies’

reliability anywhere in the record—not whether the studies should have been

admitted as evidence during trial. Phillips also cannot escape his predicament by

noting that BNSF failed to introduce the studies to disprove reliability. [Resp. Br.

at 28]. This Court already has rejected such an argument on the grounds that it

impermissibly shifts the burden of proof.           Whirlpool Corp. v. Camacho, 298

S.W.3d 631, 639 (Tex. 2009) (“Evaluating whether expert testimony has been

conclusively disproved by the opposing party is not the same as considering

whether the proponent of the testimony satisfied its burden to prove the testimony

is relevant and reliable.”).

        Phillips’s argument that he did not need to present epidemiological evidence

to prove his claim also does not excuse his failure to comply with Havner, Garza,

and Bostic.          [Resp. Br. at 14-15].        Phillips—who chose to rely upon

epidemiological evidence to establish general causation—must comply with this

Court’s dictates.           Garza, 347 S.W.3d at 264-68 (“Havner’s requirements

necessarily apply to all epidemiological evidence.”); Havner, 953 S.W.2d at 720;

[Dissent at 4-5]. Because he did not, Johanning’s testimony, which is based upon

those studies, is no evidence of general causation.



Reply Brief on the Merits                                                        Page 4
        Johanning’s testimony also is no evidence of specific causation.       First,

Johanning’s own testing of a BNSF locomotive is no evidence that Phillips was

exposed to unsafe levels of vibration because he neither discussed his test results

nor offered them as evidence. [4 RR 52, 70-73, 126-33; 5 RR 4-5, 34-42]. The

only evidence concerning Johanning’s test results came from BNSF’s expert,

Dennis Mitchell, who introduced graphs showing that neither his nor Johanning’s

testing detected vibration levels that violate, or even approach, the “caution zones”

articulated by the International Organization for Standardization and EU Vibration

Directive. [15 RR Court Exs. Dennis Mitchell A-B].

        Second, as Johanning admitted, there is no quantifiable dose or exposure

level known to cause injury or produce health effects. [BNSF Br. at 14-16].

Phillips argues that such data is unknown in several fields of study, including

audiology and smoking. [Resp. Br. at 23-24]. However, given that Johanning’s

testimony regarding vibration exposure is informed by epidemiological studies and

his own testing—neither of which is in the record—the lack of any quantifiable

dose or exposure level that creates health effects or injury merely underscores the

unreliability of his testimony. [BNSF Br. at 14-15].




Reply Brief on the Merits                                                      Page 5
        Third, Johanning’s differential etiology3 failed to exclude other causes of

Phillips’s injury, and Phillips’s claim to the contrary finds no support in the

evidence. [BNSF Br. at 16-18]. As Johanning conceded, other issues could have

played a role in Phillips’s injury, including hypertension, diverticulitis, diabetes,

obesity, a preexisting spinal slippage, and genetics. [5 RR 24, 52]. Yet, Johanning

offered no explanation for his ipse dixit exclusion of these causes. For all of these

reasons, Johanning’s testimony is no evidence of causation.

        B.      Kress’s Testimony Constitutes No Evidence of Causation.

        Dr. Tyler Kress’s causation testimony also is legally insufficient to support

the judgment. As a matter of law, an ergonomist, like Kress, cannot testify to

specific causation. [See BNSF Br. at 18-19]. Phillips’s Response completely

ignores BNSF’s cited authorities and cites cases for the more generic proposition

that “[e]rgonomists . . . are routinely permitted to testify on causation.” [Resp. Br.

at 31]. This assertion does not answer the issue, as those cases do not hold that

ergonomists may opine as to the medical cause of a particular injury. See, e.g.,

Synar v. Union Pac. R.R. Co., No. 12-99-00428-CV, 2001 WL 1263573, at *6

(Tex. App.—Tyler Oct. 17, 2001, pet. denied); Kelly v. Ill. Cent. R.R. Co., No. 08-

1052, 2010 WL 271959, at *11 (C.D. Ill. Jan. 12, 2010) (same); Hardy v. Union


3
  Although Phillips continues to refer to Johanning’s approach as a “differential diagnosis,”
[Resp. Br. at 20-21, 30], Johanning actually conducted a less reliable “differential etiology.”
[BNSF Br. at 16-17].


Reply Brief on the Merits                                                                Page 6
Pac. R.R. Co., No. 10-CV-01880-REB-MJW, 2011 WL 5295199, at *2-3 (D. Colo.

Nov. 2, 2011) (same). Because the only testifying medical doctor did not establish

specific causation, and Kress’s testimony cannot fill that void, there is no evidence

of specific causation.

        With regard to general causation, Kress’s testimony suffers from the same

flaws as Johanning’s—the studies that he cites are not in the record, and his

methodology is unreliable. See supra at 3-6. Kress’s familiarity with BNSF

locomotives and Phillips’s long career with the railroad do not excuse these

deficiencies, and BNSF’s cited cases—which Phillips makes no effort to address—

compel the conclusion that Kress’s testimony is no evidence of causation. [See

BNSF Br. at 9-18, 19 n.9; Resp. Br. at 19-35].

        C.      Phillips’s Attempt to Distinguish This Court’s Precedent Reflects
                a Fundamental Misunderstanding of Those Opinions.

        “[T]he standard of causation under FELA and the standards of admission of

expert testimony under the rules of evidence are distinct issues and do not affect

each other.”4 Abraham v. Union Pac. R.R. Co., 233 S.W.3d 13, 19 (Tex. App.—

Houston [14th Dist.] 2007, pet. denied) (expressly rejecting contrary holding in




4
 To this end, BNSF does not, as Phillips claims, “assert that the substantive issue of causation is
governed by state law[.]” [Resp. Br. at 10]. Rather, BNSF argues that Phillips’s only evidence
of causation fails to satisfy the reliability standards this Court pronounced in Havner, Garza, and
Bostic and, therefore, constitutes no evidence as a matter of law.


Reply Brief on the Merits                                                                    Page 7
Hines v. Consol. Rail Corp., 926 F.2d 262 (3d Cir. 1991)).5 Contrary to Phillips’s

position, “[t]he lower burden under FELA does not mean that, in FELA cases,

courts must permit expert testimony that would not be admissible in other

contexts.” Id. “Where the trial court has admitted the expert testimony and the

appellant challenges, on appeal, the expert testimony as constituting ‘no evidence,’

[an appellate court must] consider whether the expert testimony is reliable under a

de novo standard of review.” Mo. Pac. R.R. Co. v. Navarro, 90 S.W.3d 747, 750

(Tex. App.—San Antonio 2002, no pet.) (citing Havner, 953 S.W.2d at 710-20).

“If the expert testimony is unreliable under Havner and Robinson, it is no

evidence, ‘not even a feather’s weight.’” Abraham, 233 S.W.3d at 19-20 (citing

Coastal Tankships, U.S.A., Inc. v. Anderson, 87 S.W.3d 591, 610 (Tex. App.—

Houston [1st Dist.] 2002, pet. denied)).

        Phillips, whose Response continually and erroneously refers to this Court’s

reliability standard as a “state law causation standard” [Resp. Br. at xv, xviii, 4

(emphasis added)], asserts that the FELA’s causation standard reduces his burden

to present legally-sufficient causation evidence.6 This Court—consistent with the


5
  Hines, the only case Phillips cites that arguably supports his position, predates Daubert, and
neither Texas courts nor the Third Circuit follows its holding. See Abraham, 233 S.W.3d at 18-
19 (rejecting Hines and collecting cases); In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 743 (3d
Cir. 1994) (holding that Daubert and Rule 702 standards determine reliability of expert evidence
in FELA cases).
6
  Certainly where, as here, a plaintiff chooses to use as his only evidence of causation
epidemiological studies that cannot be shown to meet the required reliability standard, the


Reply Brief on the Merits                                                                  Page 8
overwhelming majority of Texas, federal, and other state courts that have

considered the issue—has specifically rejected attempts to conflate federal

substantive standards of causation with state procedural standards of evidentiary

reliability.7     [Reply in Support of PFR at 4-5, App. H]; see, e.g., In re

GlobalSanteFe Corp., 275 S.W.3d 477, 486-87 (Tex. 2008) (“To the extent that

Jones Act jurisprudence recognizes a special standard for proving causation,

federal cases have held that this causation standard does not exempt Jones Act

cases from the general rules for admission of expert testimony.”).8

        As Phillips concedes, Texas law supplies the appropriate appellate standards

of review for determining legal sufficiency and mandates the application of the

legal sufficiency standards articulated in City of Keller v. Wilson, 168 S.W.3d 802

(Tex. 2005). [See Resp. Br. at 12-14]. Phillips’s reliance on City of Keller is

curious, however, as that opinion squarely supports BNSF’s position:

Court’s reliability analysis drives the outcome of its legal sufficiency review. That does not
mean, however, that the reliability standard is the same as a “state law causation standard.”
7
  Notably, the Majority also rejects this point, recognizing that, “even though Phillips’s claims
are pursuant to federal statutes, the trial court must follow state procedure in determining the
reliability of expert testimony.” [Maj. Op. at 14-15]. Rather than accept this well-supported
statement, Phillips calls BNSF “hypocritical” for arguing in a Minnesota case that state rules
allowing recoveries that are not allowed under the FELA are preempted. [See Resp. Br. at 10-
11]. Phillips’s misdirection is unavailing because (1) BNSF never has argued that “the
substantive issue of [FELA] causation is governed by state law” and (2) BNSF’s argument
challenging another state’s law that would expand FELA recoveries is not inconsistent with its
reliance on this state’s reliability and legal sufficiency review standards. [Id. at 10].
8
  Because the Jones Act and the FELA have identical causation requirements, In re
GlobalSanteFe’s analysis applies equally here. See Maritime Overseas Corp. v. Ellis, 971
S.W.2d 402, 406 (Tex. 1998).


Reply Brief on the Merits                                                                  Page 9
        It has long been the rule in Texas that incompetent evidence is legally
        insufficient to support a judgment[.] . . . This exception frequently
        applies to expert testimony . . . . After we adopted gate-keeping
        standards for expert testimony, evidence that failed to meet reliability
        standards was rendered not only inadmissible but incompetent as well.

City of Keller, 168 S.W.3d at 812-13; see also Whirlpool Corp., 298 S.W.3d at 638

(courts evaluate legal sufficiency of expert testimony in light of entire record).9

        Because federal claims, including Phillips’s FELA claim, are subject to

Texas’s reliability requirements—which apply to all epidemiological evidence—

Phillips’s epidemiological studies are unreliable as a matter of law and constitute

no evidence of causation.

        D.      Phillips’s Preemption        Argument       Rests     Upon     the    Same
                Misunderstanding.

        Phillips’s preemption argument, made for the first time in his Response,

misses BNSF’s point entirely. The standard to which BNSF seeks to hold Phillips

is not a “common-law causation standard” but rather the expert reliability standard

that is used to determine whether a plaintiff presented legally sufficient evidence.

Garza, 347 S.W.3d at 262. If Phillips presented no legally sufficient causation

evidence, he cannot meet his FELA causation burden, no matter how low it may

be.    Moreover, this Court has rejected prior attempts to preempt state expert

admissibility standards in the analogous Jones Act context, and Phillips offers no

9
  Phillips’s cited cases that supposedly support a “relaxed” standard of review in FELA cases
apply only in a factual sufficiency review—not a legal sufficiency review like this Court has
been asked to perform. [Resp. Br. at 6-7]; see, e.g., Ellis, 971 S.W.2d at 406.


Reply Brief on the Merits                                                             Page 10
meaningful reason to reach a different result here. See In re GlobalSanteFe, 275

S.W.3d at 487 (“We see no basis for holding that Texas law generally governing

the admission of expert testimony . . . is preempted by the Jones Act.”). Nothing in

this Court’s discussion of the reliability standard for epidemiological evidence

prevents proper analysis of Phillips’s FELA claim. See supra at 7-10.

        E.      BNSF Properly Preserved Its Right to Challenge the Expert
                Testimony on Causation.

        Phillips’s waiver argument is baseless, as the court of appeals properly

recognized. [Maj. Op. at 14]. Indeed, BNSF objected to Phillips’s causation

evidence at every opportunity. First, BNSF filed pretrial motions to preclude the

testimony of Johanning and Kress, both of which the trial court denied. [1 CR 75-

85; 3 CR 485-88; 6 CR 1295]. Second, BNSF objected when each expert offered

his testimony regarding causation. [4 RR 64-65; 6 RR 25-26]. Third, BNSF

obtained a running objection to Johanning’s opinion testimony.10 [4 RR 66].

Finally, BNSF filed a Motion for JNOV, in which it argued that Johanning’s and

Kress’s “testimony lacked a sufficient reliability to be considered sufficient




10
   BNSF received an adverse ruling when the trial court granted BNSF’s request for a running
objection to Johanning’s opinions. [4 RR 66]; see Lajoie v. State, 237 S.W.3d 345, 351 (Tex.
App.—Fort Worth 2007, no pet.) (mem. op.).


Reply Brief on the Merits                                                            Page 11
evidence of causation.” [6 CR 1246-47].11 This is more than BNSF needed to do

in order to preserve the point for appeal.

        Phillips’s argument that BNSF failed to obtain rulings on its motions is both

irrelevant and incorrect. It is irrelevant because BNSF only needed to object to

legal sufficiency in its Motion for JNOV, which it did. [6 CR 1246-47]; see T.O.

Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 220-21 (Tex. 1992). It is

incorrect because the civil docket sheet clearly notes “∆ Mot to exclude Dr.

Johanning denied” and “∆ M preclude testimony of Dr. Kress – denied”—a fact

that Phillips fails to mention.12 [6 CR 1295]; Huckaby v. A.G. Perry & Son, Inc.,

20 S.W.3d 194, 203-04 (Tex. App.—Texarkana 2000, pet. denied) (unlike motions

in limine, pretrial motions to exclude evidence preserve error).

        Although Phillips claims that BNSF’s objections before the trial court were

different than the objections described in its opening brief, he cites no authority

requiring that a party use identical verbiage in the trial court and on appeal. BNSF

objected repeatedly that Phillips’s causation evidence was unreliable and legally
11
    Even if the Court finds that BNSF waived any objection to the reliability of Kress’s testimony
at trial, it is nonetheless true that legally insufficient evidence supports Kress’s conclusion. See
supra at 6-7.
12
    The docket sheet properly may be considered here because BNSF does not cite it to
“contradict or prevail over a final judicial order,” but rather to show that the trial court
considered BNSF’s motions and denied them. N-S-W Corp. v. Snell, 561 S.W.2d 798, 799 (Tex.
1977) (orig. proceeding). Because the record contains both the file-marked motions to exclude
and the testimony of Johanning and Kress, the docket notation is not “the only evidence of [the]
trial court’s order or judgment.” [1 CR 75-85; 3 CR 485-88]; Bishop v. A.B. Auto Salvage, No.
02-09-00314-CV, 2011 WL 5984527, at *2 n.17 (Tex. App.—Fort Worth Dec. 1, 2011, no pet.)
(mem. op.).


Reply Brief on the Merits                                                                   Page 12
insufficient, which is all that Texas law requires. [Maj. Op. at 13-14 (recounting

BNSF’s preservation of issue); 1 CR 75-85; 3 CR 485-88; 6 CR 1246-47, 1295; 4

RR 64-66; 6 RR 25-26].

        F.      BNSF Has Neither “Concede[d] Causation” Nor “Concede[d]
                Timeliness.”

        Phillips suggests that BNSF “concedes causation” by arguing that Phillips’s

claim was untimely and, conversely, “concedes timeliness” by arguing that Phillips

presented no evidence of causation. [Resp. Br. at 39, 50]. The questions are

entirely separate, and BNSF may hold Phillips to his burden of proof on each

element. See Trenholm v. Ratcliff, 646 S.W.2d 927, 931 (Tex. 1983) (citing

Dowling v. NADW Mktg., Inc., 631 S.W.2d 726, 728 (Tex. 1982)) (“The brief does

not concede the issue of reliance, but merely makes alternative arguments.”).

II.     Phillips Presented No Evidence to Support the Jury’s Finding of
        Timeliness.

        Phillips’s lawsuit was untimely under the FELA, which requires a claimant

to commence suit within three years from the day the cause of action accrued and

to prove his timeliness as an element of his claim and condition precedent to

recovery. 45 U.S.C. § 56. Because Phillips filed the underlying lawsuit on April

13, 2007, he had to prove that his FELA claim accrued on or after April 13, 2004.

[1 CR 2-7]. Phillips did not satisfy this burden. Thus, this Court should reverse

and render judgment for BNSF.



Reply Brief on the Merits                                                       Page 13
        A.      The Burden to Prove Compliance with the FELA’s Timeliness
                Requirement Rested Squarely with Phillips.

        For the first time in this appeal, Phillips argues that it was not his burden—

but, rather, BNSF’s burden—to prove compliance with the FELA’s timeliness

requirement. [Resp. Br. at 39-40]. This argument contradicts the trial court’s

charge to the jury, the Majority’s Opinion, Phillips’s prior briefing, and state and

federal authority on this issue. [6 CR 1225; 10 RR 4; Maj. Op. at 12]; Billman v.

Mo. Pac. R.R. Co., 825 S.W.2d 525, 527 (Tex. App.—Fort Worth 1992, writ

denied) (“The burden is upon the claimant to allege and prove that he filed suit

within the three-year period”); Roberts v. Lain, 32 S.W.3d 264, 268 (Tex. App.—

San Antonio 2000, no pet.) (same); Emmons v. S. Pac. Transp. Co., 701 F.2d 1112,

1118 (5th Cir. 1983) (same); Granfield v. CSX Transp., Inc., 597 F.3d 474, 481

(1st Cir. 2010) (same); Robinson v. BNSF Ry. Co., 553 F. App’x 792, 796 n.3 (10th

Cir. 2014) (same).

        Phillips claims that his argument finds support in a fifty-year-old opinion

from the Fourth Circuit, but the opinion does not speak to the parties’ burdens at

all. Young v. Clinchfield R.R. Co., 288 F.2d 499, 503 (4th Cir. 1961). Instead, it

recites the uncontroversial point that a claim accrues “when [the plaintiff’s]

condition is diagnosed, unless it is shown that the plaintiff ‘should have known’ at

an earlier date that he was injured.” Id. (citing Urie v. Thompson, 337 U.S. 163,

170 (1949)). In no way does this statement suggest that a plaintiff is relieved of his

Reply Brief on the Merits                                                       Page 14
burden to prove timeliness whenever constructive knowledge is alleged. To the

contrary, the Fourth Circuit has recognized that “the burden is . . . on [the FELA]

claimant to allege and prove that his cause of action was commenced within the

three-year period.” Johnson v. Norfolk & W. Ry. Co., No. 92-1719, 985 F.2d 553,

at *1 (4th Cir. Jan. 28, 1993) (citing Emmons, 701 F.2d at 1118); Harvey v. CSX

Transp., Inc., No. 92-1355, 23 F.3d 401, at *2 (4th Cir. May 5, 1994) (citing

Emmons, 701 F.2d at 1118). Because Phillips alone bore the burden to prove his

compliance with the FELA’s timeliness requirement, his argument that “[BNSF]

failed to carry this burden” provides no basis for affirmance of the appellate court’s

judgment. [Resp. Br. at 39-40].

        B.      No Evidence Supports the Jury’s Finding on Timeliness.

        An FELA cause of action accrues for timeliness purposes when a claimant

discovers or possesses critical facts concerning both his injury and its underlying

cause. United States v. Kubrick, 444 U.S. 111, 121-23 (1979); Billman, 825

S.W.2d at 527. In arguing that the evidence supports the jury’s finding that

Phillips’s cause of action accrued on or after April 13, 2004, Phillips

mischaracterizes the evidence, contradicts his own briefing, and ignores BNSF’s

arguments regarding alleged proof that constitutes no evidence as a matter of law.

        As one example, Phillips claims “the evidence reflects [he] was not aware of

his injuries or their cause until summer of 2005 at the earliest” and, in the next



Reply Brief on the Merits                                                      Page 15
breath, concedes that “a diagnosis of spondylolysis was made by a radiologist in

2003.”     [Resp. Br. at 42, n.25].   Phillips apparently reaches this inconsistent

conclusion based on medical records from June 2004 that, according to Phillips,

“do not make any mention of symptoms related to his spinal injury” and, therefore,

prove that “Phillips was not experiencing spine and neck symptoms, other than

back spasms, and the numbness in his extremities was diagnosed as related to

diabetes, not his work for BNSF.” [Id. at 42, 44]. This argument fails for at least

two reasons.

        First, Phillips seems to imply that the doctor’s failure to mention symptoms

relating to the spine means Phillips was not experiencing symptoms at that time.

This implication is nonsensical as the records indicate that Phillips visited Dr. Cruz

of the Kidney and Blood Pressure Clinic of Lubbock “for follow-up of

hypertension”—not to discuss the spinal injury that already had been diagnosed a

year earlier. The suggestion that Phillips was not experiencing spinal symptoms in

2004 also belies other record evidence, including Phillips’s own testimony. [7 RR

11]. Second, as BNSF previously has explained, the 2004 doctor’s notes constitute

no evidence of timeliness because (a) Phillips admits he never was told that his

spinal injuries were due to his diabetes and (b) evidence that Phillips received

information after April 13, 2004 regarding another possible cause of his injury is

irrelevant to whether he possessed critical facts concerning his injury and its work-



Reply Brief on the Merits                                                      Page 16
related cause before April 13, 2004. [BNSF Br. at 24-25]. Phillips makes no effort

whatsoever to address these arguments in his Response.

        Phillips also attempts to support his position with the “Confidential Patient

Information” form he filled out for his chiropractor in 1998—the form that, as

BNSF has explained, proves Phillips’s awareness of the connection between his

spinal symptoms and his work on locomotives. [BNSF Br. at 23]. Specifically,

Phillips argues that (1) his negative answer to the question, “[i]s condition due to

injury or illness arising out of patient’s employment,” establishes his ignorance of

critical facts concerning the alleged cause of his injury in 1998 and (2) his

statement that “rough riding railroad engines” aggravate his condition constitutes

nothing more than “speculation,” “mere suspicion or subjective belief that a causal

connection exists between his exposure and his symptoms.” [Resp. Br. at 43-44].

Neither argument survives scrutiny.

        As to the former, it is unsurprising that Phillips did not attribute his back

pain to an “injury” because Phillips never has claimed that his spinal condition was

“the result of a traumatic incident, but rather an accumulation of repeated exposure

to [whole body vibration] while operating a locomotive for 31 years.” [Id. at 41,

44]. As to the latter, in a case involving alleged cumulative injury, discovery of

the cause always will take the form of a subjective belief based on knowledge of

critical facts because the law does not require a physician to confirm a plaintiff’s



Reply Brief on the Merits                                                      Page 17
suspicions before his claim accrues. Billman, 825 S.W.2d at 527 (“[A]n awareness

of critical facts will impose a duty upon a claimant to investigate and confirm or

deny his belief, otherwise the limitations period would be meaningless.”). Indeed,

Phillips fails to articulate why his informed subjective belief in 2005 should be

afforded any greater weight than his informed subjective belief in 1998.         As

Phillips conceded at trial, between 1998 and 2005, he did not experience any

material change in his condition. [7 RR 11].

        Next, Phillips relies on his own testimony that the “first time that [he]

understood that [his] spinal condition was in fact caused by [his] work . . . was

prior to - - to 2005, possibly, somewhere in there.” [Resp. Br. 45]. According to

Phillips, BNSF and Justice Meier claim that this testimony conclusively establishes

Phillips’s awareness of the alleged cause of his injury prior to 2004. That is a

gross mischaracterization of BNSF’s argument and the Dissenting Opinion. What

BNSF has argued and Justice Meier properly recognized is that, under the equal

inference rule, this particular testimony is no evidence of when his cause of action

accrued. City of Keller, 168 S.W.3d at 813 (“When the circumstances are equally

consistent with either of two facts, neither fact may be inferred.”); Lozano v.

Lozano, 52 S.W.3d 141, 148 (Tex. 2001). Because the phrase “prior to – 2005”

implicates the time period before April 13, 2004 as much as it implicates the time




Reply Brief on the Merits                                                     Page 18
period after April 13, 2004, this testimony no more establishes his compliance with

the FELA timeliness requirement than disproves it.

        Finally, Phillips’s argument that he “only knew or should have known he

had a spinal injury that was related to his work (as opposed to simple muscle

soreness or spasms) sometime around 2005” ignores both the evidence and

relevant authority. [Resp. Br. at 46]. Unlike the plaintiff in Phillips’s cited case,

Phillips’s initial symptoms cannot fairly be characterized as “routine physical

annoyances.” See Pretus v. Diamond Offshore Drilling, Inc., 571 F.3d 478, 485-86

(5th Cir. 2009) (plaintiff experienced “cold-type symptoms including a sore throat,

fever, sinus pressure, coughing, and nose congestion”).13 Phillips’s symptoms—

which led him to seek consistent chiropractic treatment between 1998 and 2005

and obtain MRI imaging in 2003—included “low back pain,” “neck pain or

stiffness,” “cramps or backache,” and “pain down [the] left leg to the left foot.”

[15 RR Def.’s Ex. 11-12, 14]; Clay v. Union Carbide Corp., 828 F.2d 1103, 1106-

07 (5th Cir. 1987).

        Ultimately, it does not matter if these symptoms put Phillips on constructive

notice of his injury because Phillips concedes that he obtained actual knowledge of

his injury in 2003 when a radiologist affirmatively diagnosed him with
13
   Phillips’s other cited case is inapposite as it concerns a claim under the Longshoremen’s and
Harbor Workers’ Compensation Act and applies a variation of the discovery rule that requires a
plaintiff to have actual or constructive knowledge “that [his injury] interferes with his
employment by impairing his capacity to work[.]” Marathon Oil Co. v. Lunsford, 733 F.2d
1139, 1142 (5th Cir. 1984).


Reply Brief on the Merits                                                                Page 19
spondylolysis—the same degenerative spinal condition at issue in this lawsuit.

[Resp. Br. at 42, n.25].       This actual knowledge, combined with Phillips’s

possession of critical facts and a subjective belief concerning its cause,

conclusively establish that his claim accrued prior to April 14, 2004. There simply

is no evidence that Phillips satisfied his burden to prove otherwise.

        C.      Phillips’s Attempts to Distinguish BNSF’s Cited Authorities are
                Unavailing.

        In its opening brief, BNSF discussed two recent opinions with similar facts

that support its position regarding timeliness. [BNSF Br. at 27-30]. Phillips’s

attempts to distinguish these opinions fall flat.

        First, Phillips argues that BNSF Railway Co. v. Acosta, 449 S.W.3d 885

(Tex. App.—El Paso 2014, no pet.) does not support reversal of the appellate

court’s judgment because “the court of appeals distinguished the present case and

in fact relied on the present case as providing the standard for determining

timeliness.” [Resp. Br. at 48]. In reality, the Acosta opinion begins “with a survey

of opinions which address or reference the accrual of actions under FELA and

other federal statutes in relation to limitation of actions”—including the Fort Worth

Court of Appeals’s opinion in this case—but the El Paso Court of Appeals does not

explicitly compare, contrast, or apply the facts of those opinions to the case before

it. Acosta, 449 S.W.3d at 888-93. Rather, after summarizing those opinions, the




Reply Brief on the Merits                                                     Page 20
court summarily concludes that “Acosta failed to meet his burden of establishing

that his suit is timely.” Id. at 893.

        Phillips then argues that the Acosta opinion is factually distinguishable

because Acosta suffered traumatic injuries in 1993-1994 and 2005. [Resp. Br. at

48-49]. This distinction is immaterial. As Acosta explained, before the 1993-1994

event, he “was already in pain . . . from ‘doing the same [j]ob’ for the previous two

to three months[,]” and he continued to suffer “the same pain” until he filed his

FELA lawsuit in 2010. Acosta, 449 S.W.3d at 886. His 2010 medical records,

which describe “intermittent low back pain over the preceding fifteen years and

frequent exacerbation,” lend support to this testimony. Id. The traumatic events in

1993-1994 and 2005 informed the court’s analysis only because Acosta’s own

description of those events negated any possibility that he had failed to associate

his injury with his work before January 17, 2009.

        Phillips’s distinction of Caudill v. CSX Transp., Inc., 749 S.E.2d 342 (W.

Va. 2013) also hinges on a single factual difference between the two cases—the

fact that Caudill complained multiple times to BNSF about his seats and that

Phillips never did. Like the traumatic events in Acosta, Caudill’s seat complaints

merely indicate that he possessed critical facts regarding the alleged work-related

cause of his injury; neither fact, standing alone, was dispositive on the question of

timeliness.



Reply Brief on the Merits                                                     Page 21
        Even if the distinguishing facts in Acosta and Caudill had been case-

dispositive, the absence of those facts in this case is irrelevant because BNSF has

challenged the legal sufficiency of the evidence actually presented during trial.14

Because no evidence supports the Majority’s ruling that Phillips satisfied his

burden to demonstrate compliance with the FELA timeliness requirement, this

Court should reverse and render judgment in BNSF’s favor.

III.    Phillips’s General Complaints Cannot Support a Finding of LIA
        Liability.

        The trial court erroneously held BNSF liable under the LIA—not for any

violation on a specific locomotive, but for alleged violations on BNSF’s

locomotives generally.15 [4 RR 89; 7 RR 42, 55-56, 61-62]. As a matter of law,

general complaints from Phillips and his coworkers that locomotives were “rough

riding” or had “bad seats” cannot support a finding of LIA liability. Phillips’s

cited cases do not hold otherwise.

        First, Phillips cites Urie v. Thompson, 337 U.S. 163 (1949), claiming that

this opinion illustrates why “an injured FELA plaintiff is simply not required to

14
   Phillips’s failure to file a single written complaint for “rough riding railroad engines” or to
“red tag” or “bad order” a seat during his career is relevant only insofar as that failure defeats his
LIA claim against BNSF and supports BNSF’s claim for contributory negligence against
Phillips.
15
    Phillips claims, without citation to the record, that he “identified particular models of BNSF
locomotives equipped with unsafe seats and/or shocks, that were subject to excessive vibrations,
and that would bottom out as they passed over the tracks.” [Resp. Br. at 52]. Whether this
statement is true or false, it is not sufficient because Phillips offers no evidence regarding when
or how often he encountered these allegedly defective models of which he never complained.


Reply Brief on the Merits                                                                     Page 22
supply such specifics in cumulative trauma/occupational exposure cases.” [Resp.

Br. at 53]. In fact, that issue was neither raised by the parties nor discussed by the

Court.

         Second, Phillips cites Munns v. CSX Transp., Inc., 579 F. Supp. 2d 924, 930

(N.D. Ohio 2008) for the proposition that “[a] general description of what caused a

plaintiff’s injury suffices to bring a claim” but fails to mention that the sentence

actually ends with the phrase “under the FELA”—not “under the LIA” or “under

the FELA and LIA.” Phillips also fails to mention that the Munns plaintiff actually

did provide the court with some degree of specificity. Indeed, the Munns plaintiff

“indicated in his journal the occasions when he rode a locomotive with a defective

seat and submitted locomotive worksheets to his employer noting defective seats

needing attention”; he also “identified a specific series of locomotives that he

believed were defective and provided documentary evidence that he had alerted the

railroad of these conditions.” O’Neill v. BNSF Ry. Co., No. A10-1987, 2011 WL

4008276, at *4 n.1 (Minn. Ct. App. Sept. 12, 2011) (distinguishing Munns, 579 F.

Supp. 2d at 928-29)). Unlike Munns, Phillips did not document the LIA defects he

allegedly encountered throughout his career.

         Third, Phillips cites Strickland v. Norfolk Southern Railway Co., 692 F.3d

1151, 1158 (11th Cir. 2012), an opinion that—in distinguishing BNSF’s cited

cases, Tezak and O’Neill, from the facts of that case—highlights the relevance of



Reply Brief on the Merits                                                      Page 23
those opinions to the issues currently before this Court. Like the plaintiffs in Tezak

and O’Neill, Phillips seeks “redress for cumulative trauma suffered throughout his

employment” and is “seeking to make BNSF an insurer of all workplace injuries.”

Strickland, 692 F.3d 1158-59 (citing Inman v. Baltimore & Oh. R.R. Co., 361 U.S.

138, 140 (1959) (holding the FELA is not intended to make railroads insurers of

their employees)).          Specifically, Phillips “allege[s] that he suffered disabling

injuries as a result of cumulative trauma stemming from required activities during

his employment by BNSF” and cannot “point to documentation showing that he

had ever complained about any of the equipment that allegedly caused his

injuries[.]” Id. At least three courts, including the United States Court of Appeals

for the Eleventh Circuit, have determined that such general allegations and

evidence cannot give rise to liability under the Federal Safety Appliance Act

(“FSAA”).16        Id.; Tezak v. BNSF R.R. Co., No. C09-05212BHS, 2010 WL

3211693, at *2 (W.D. Wash. Aug. 12, 2010); O’Neill, 2011 WL 4008276, at *4;

contra Synar, 2001 WL 1263573, at *19 (reinstating jury’s finding of FSAA




16
   Strickland’s claim, for which “he provide[d] allegations about a specific injury-causing event,
identifie[d] a specific date, and narrow[ed] the number of railcars which could have contained
the defective handbrake[,] . . . is precisely what the FELA was meant to remedy.” Strickland,
692 F.3d at 1159.



Reply Brief on the Merits                                                                  Page 24
liability that trial court disregarded for lack of specific evidence). The same must

be true under the LIA.17

        As BNSF’s cited authority explains, railroad companies are not meant to be

the insurers of their employees. In a case, like this one, where an employee

complains of injury sustained over the entire course of his career but offers no

evidence tying his complaints to any particular locomotive or locomotives, he

cannot recover under the LIA. Accordingly, this Court should reverse and render

judgment for BNSF on Phillips’s LIA claim.

IV.     The Court of Appeals Erroneously Employed Inconsistent Standards In
        Affirming Both the Jury’s Finding of Negligence and the Trial Court’s
        Failure to Submit Contributory Negligence.

        The Majority affirmed the trial court’s decision not to submit the issue of

Phillips’s contributory negligence to the jury on the basis that “a jury could at most

find a possible [causal] relationship” between Phillips’s negligence and his injury.

[Maj. Op. at 50-51]. In an FELA action, however, the same standard of causation

that applies to a railroad’s alleged negligence must be applied equally to the

plaintiff’s alleged contributory negligence. Norfolk S. Ry. Co. v. Sorrell, 549 U.S.

158, 166-67 (2007). Moreover, an FELA “defendant is entitled to a contributory

17
   Phillips’s attempt to distinguish Tezak and O’Neill on the basis that those opinions concern
claims under the FSAA, rather than the LIA, goes nowhere. As BNSF explained in its opening
brief, both the LIA (which applies to locomotives) and the FSAA (which applies to cars) impose
an absolute duty to provide safe equipment, and a violation of either constitutes negligence per
se. Keane v. Ne. Ill. Commuter R.R. Corp., No. 01-C-43, 2002 WL 1806919, at *2 (N.D. Ill.
2002). Accordingly, courts apply similar reasoning in LIA and FSAA cases, and FSAA cases
are instructive. O’Neill, 2011 WL 4008276, at *4 n.1.


Reply Brief on the Merits                                                                Page 25
negligence instruction if there is any evidence to support that theory.” Sloas v.

CSX Transp., Inc., 616 F.3d 380, 392 (4th Cir. 2010) (quoting Wilson v. Burlington

N., Inc., 670 F.2d 780, 782 (8th Cir. 1982)) (emphasis added); Tex. R. Civ. P. 278.

Accordingly, if the evidence was sufficient to support a negligence issue against

BNSF for its supposed failure to protect Phillips from allegedly rough riding

locomotives, it also was sufficient to support a contributory negligence issue

against Phillips based on his failure to protect himself from those same

locomotives.

        Here, Phillips controlled the ride quality each time he operated a locomotive

and, therefore, had as much—if not more—of an ability to protect himself from

“rough riding railroad engines” as did BNSF. [6 RR 146; 7 RR 59]. As BNSF

previously explained, Phillips exercised that control unreasonably and not “in the

manner which the employer directed.” [See BNSF Br. at 37 (citing 6 RR 143-44; 7

RR 46, 54-56, 119; 15 RR Def.’s Ex. 1, 11-12, 14)); Resp. Br. at 55-56 (citing

Fashauer v. New Jersey Transit Rail Operations, Inc., 57 F.3d 1269, 1280 (3d Cir.

1995))]. Because competent evidence supports BNSF’s contributory negligence

theory, the Majority erred by affirming the trial court’s refusal to submit Phillips’s

contributory negligence to the jury, and the appellate court’s judgment should be

reversed.




Reply Brief on the Merits                                                      Page 26
V.      The Court of Appeals Erroneously Affirmed Evidentiary Rulings That
        Rest Upon a Misapprehension of the Record, Destroyed BNSF’s Right
        to Cross-Examination, and Allowed Phillips’s Evidence to Go
        Unrebutted.

        A trial court abuses its discretion when it unfairly restricts a party’s ability to

cross-examine witnesses and rebut evidence in a meaningful way. Davidson v.

Great Nat’l Life Ins. Co., 737 S.W.2d 312, 314 (Tex. 1987). Because the Majority

upheld several evidentiary rulings that destroyed BNSF’s opportunity to cross-

examine Phillips’s witnesses meaningfully and prevented BNSF’s presentation of

rebuttal evidence, this Court should reverse the appellate court’s judgment.

        According to Phillips, the trial court properly excluded BNSF’s evidence

“because it was speculative, mere conjecture, irrelevant and/or cumulative of other

evidence.” [Resp. Br. at 57]. Neither the record nor Phillips’s cited cases support

this statement. For example, in discussing BNSF’s proffered general causation

evidence that heredity or genetic factors are a more likely cause of spondylolysis,

Phillips fails to address any of BNSF’s cited cases that recognize its probative

value. [Compare BNSF Br. at 41-43, with Resp. Br. at 58-59]. Instead, Phillips

cites a wholly inapposite opinion in which the defendant had stipulated to liability

and, therefore, causation. [Resp. Br. at 58 (citing Amoco Chems. Corp. v. Stafford,

663 S.W.2d 147, 150 (Tex. App.—Houston [1st Dist.] 1983, no writ) (trial court

excluded evidence that the plaintiff was an alcoholic as prejudicial in trial

concerning damages)]. Phillips also cites the eggshell plaintiff rule, which has no

Reply Brief on the Merits                                                           Page 27
application in this situation because the principle that a “tortfeasor takes the

plaintiff as he finds her” applies when a plaintiff is predisposed to an injury caused

by a defendant’s tortious act. [Resp. Br. at 58-59 (citing Otis Spunkmeyer, Inc. v.

Blakely, 30 S.W.3d 678, 689 (Tex. App.—Dallas 2000, no pet.))]. In other words,

it contemplates a predisposition and a tortious act. BNSF sought to introduce

evidence that a plaintiff’s genetic makeup can cause the development of

spondylolysis without any contributing locomotive vibration—not that Phillips was

genetically predisposed to being injured by whole-body vibration.

        Even more egregious than Phillips’s misleading discussion of legal

authorities is his fictitious account of what transpired during trial.        Phillips

continues to insist that Dr. Spengler’s genetics testimony “was played for the jury

in its entirety” and expresses disbelief that BNSF persists in its efforts to provide

an accurate, honest, and contextual explanation of why that is not true. [Resp. Br.

at 57-58, n.28]. As Phillips is well aware, the genetics testimony was excluded and

played for the trial court—not the jury—as an offer of proof. [BNSF Br. at 43-45].

The record speaks for itself, and BNSF will not belabor this point.

        Next, in defending the trial court’s decision to exclude testimony that

Phillips’s coworkers do not believe they were harmed by riding in locomotives,

Phillips cites a single case providing that the absence of prior claims for

compensation based on a particular occupationally-related disease has little



Reply Brief on the Merits                                                      Page 28
relevance. [Resp. Br. at 59-60 (citing Charter Oak Fire Ins. Co. v. Perez, 446

S.W.2d 580, 585-86 (Tex. Civ. App.—Houston [1st Dist.] 1969, writ ref’d n.r.e))].

Here, the relevance of the excluded testimony cannot be disputed reasonably

because Phillips opened the door by calling three of his coworkers to testify that

BNSF’s locomotives were rough riding and that the seats were bad. If proper

cross-examination had been permitted, all three would have admitted that they did

not believe they had been injured. [5 RR 99-100; 9 RR 80-81]. By excluding this

relevant and powerful rebuttal testimony and preventing BNSF from delving fully

into all matters connected with the examination in chief, the trial court committed

error. Davidson, 737 S.W.2d at 314.

        Lastly, Phillips defends the trial court’s exclusion of BNSF’s geometry car

video, arguing that, “[a]lthough the trial court determined it would be cumulative

of another video already offered by the plaintiff’s expert, [BNSF’s] fact witness

was permitted to discuss the subject matter of the video.” [Resp. Br. at 60-61].

Notably, however, Phillips makes no effort to challenge or even address BNSF’s

points as to why neither of these statements is true. [See BNSF Br. at 47-49].

Instead, Phillips avoids those issues entirely, asserting that “BNSF was given the

opportunity by the trial court to explain how the video was not cumulative of other

evidence, and BNSF offered no explanation.” [Resp. Br. at 61]. The record does

not reveal any such “opportunity.” [9 RR 80 (“It’s difficult not to see where this



Reply Brief on the Merits                                                    Page 29
would be cumulative anyway. So no, in answer (sic) your question.”)]. Moreover,

there is no question that the trial court’s exclusion of the video probably caused the

rendition of an improper judgment. If a picture is worth a thousand words, a video

is worth a million. Because the geometry car video, which objectively depicts

track conditions between Clovis and Belen, was necessary to rebut the video

prepared by Johanning, the Majority should have reversed based on the trial court’s

erroneous exclusion of that evidence.

                                     PRAYER
        For all of the reasons set forth above, BNSF respectfully requests that this

Court grant its Petition for Review, reverse the court of appeals’ judgment, and

render judgment in BNSF’s favor or, alternatively, grant its Petition for Review,

reverse the court of appeals’ judgment, and remand for a new trial.




Reply Brief on the Merits                                                      Page 30
                            Respectfully submitted,



                            /s/ Marianne M. Auld
                            David E. Keltner
                            State Bar No. 11249500
                            david.keltner@kellyhart.com
                            Marianne M. Auld
                            State Bar No. 01429910
                            marianne.auld@kellyhart.com
                            Jody S. Sanders
                            State Bar No. 24051287
                            jody.sanders@kellyhart.com
                            Mary H. Smith
                            State Bar No. 24075093
                            mary.smith@kellyhart.com
                            KELLY HART & HALLMAN LLP
                            201 Main Street, Suite 2500
                            Fort Worth, Texas 76102
                            Telephone: 817.332.2500
                            Telecopier: 817.878.9280

                            ATTORNEYS FOR PETITIONER
                            BNSF RAILWAY COMPANY




Reply Brief on the Merits                                 Page 31
                            CERTIFICATE OF COMPLIANCE
1.      This reply brief complies with the type-volume limitations of Texas Rule of
        Appellate Procedure 9.4(i)(2)(D) because it contains 7,474 words, excluding
        the parts of the brief exempted by Texas Rule of Appellate Procedure
        9.4(i)(1).

2.      This reply brief complies with the typeface requirements of Texas Rule of
        Procedure 9.4(e) because this brief has been prepared in a proportionally
        spaced typeface using “Microsoft Word 2010” in fourteen (14) point “Times
        New Roman” style font.


                                       /s/ Marianne M. Auld
                                       Marianne M. Auld



                             CERTIFICATE OF SERVICE
      I hereby certify that a true and correct copy of the above and foregoing has
been served on the following Respondent’s counsel of record via electronic filing
on the 3rd day of April, 2015:

        Fredric A. Bremseth                      Sean Cox
        BREMSETH LAW FIRM, P.C.                  LAW OFFICES OF SEAN R. COX
        601 Carlson Parkway                      P.O. Box 130864
        Suite 995                                Dallas, Texas 75313
        Minnetonka, Minnesota 55305              Email: scox@coxappellate.com
        Email: fbremseth@bremseth.com

        Scotty MacLean
        MACLEAN LAW FIRM
        3500 Hulen Street, Suite 100
        Fort Worth, Texas 76107
        Email: smaclean@macleanfirm.com


                                       /s/ Marianne M. Auld
                                       Marianne M. Auld


Reply Brief on the Merits                                                    Page 32
