Dubois v. Coeur Alaska Inc et al

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UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
Jerry L. DuBois, )
)
Plaintiff, ) 3:13-cv-00177 JWS
)
vs. ) ORDER AND OPINION
)
Coeur Alaska, Inc., d.b.a. Kensington ) [Re: Motions at Docket 33, 34]
Mine; Coeur Mining, Inc.; and Coeur )
d’Alene Mines Corp., )
)
Defendants. )
)
I. MOTION PRESENTED
Defendants Coeur Alaska, Inc., d.b.a. Kensington Mine, Coeur Mining, Inc., and
Coeur d’Alene Mines Corp. (collectively, “Coeur”) filed two motions for partial summary
judgment pursuant to Rule 56(a). Coeur’s first partial summary judgment motion, at
docket 33, seeks an order establishing that the actions of plaintiff Jerry L. DuBois
(“DuBois”) amount to contributory negligence. DuBois opposes this motion at
docket 47, and Coeur replies at docket 55.
Case 3:13-cv-00177-JWS Document 68 Filed 11/19/15 Page 1 of 9

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Coeur’s second partial summary judgment motion, at docket 341, seeks an order
establishing that DuBois lacks sufficient evidence to show that he has suffered a severe
permanent physical impairment under AS 09.17.010(c). Coeur’s memorandum in
support of this motion is at docket 35. DuBois opposes the motion at docket 46, and
Coeur replies at docket 62.
At docket 63 DuBois filed a motion for leave of court to file affidavits from experts
Terrance Dinneen and Robert R. Stephens in support his two oppositions. The court
grated this motion at docket 65. Oral argument was not requested and would not assist
the court.
II. BACKGROUND
DuBois was working as a mine safety inspector for the U.S. Department of Labor
when he fell from a deck and was injured at Coeur’s Kensington Mine.2 DuBois claims
that the deck’s guard railing broke when he leaned against it, causing him serious
injuries.3 DuBois brought a negligence action against Coeur in state court, which Coeur
removed to this court.4
DuBois’ complaint alleges that the railing was defective because, among other
things, it was attached to the outside of its 4x4 support posts, meaning that “structural
integrity of the guard rail relied entirely on the fasteners used to secure the railing and
1Coeur styled its motion as a Rule 56 "motion for rule of law," but Rule 56 does not
recognize any such motion—Rule 56 governs summary judgment. Coeur's motion is properly
characterized as a partial summary judgment motion.
2Doc. 1-1 at 1 ¶¶ 1, 4; id. at 16-17 ¶¶ 1, 4.
3Id. at 1-2 ¶ 4.
4Doc. 1.
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not on the actual strength of the rails themselves against the posts.”5 DuBois also
alleges that the railing’s metal fasteners were “rusted to the point of failure.”6
III. STANDARD OF REVIEW
Rule 56(a) authorizes motions for partial summary judgment upon any part of a
claim or defense. Summary judgment is appropriate where “there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.”7 The
materiality requirement ensures that “only disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude the entry of summary
judgment.”8 Ultimately, “summary judgment will not lie if the . . . evidence is such that a
reasonable jury could return a verdict for the nonmoving party.”9 However, summary
judgment is appropriate “against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial.”10
The moving party has the burden of showing that there is no genuine dispute as
to any material fact.11 Where the nonmoving party will bear the burden of proof at trial
on a dispositive issue, the moving party need not present evidence to show that
summary judgment is warranted; it need only point out the lack of any genuine dispute
as to material fact.12 Once the moving party has met this burden, the nonmoving party
5Doc. 1-1 at 2 ¶ 8.
6Id.
7Fed. R. Civ. P. 56(a).
8Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
9Id.
10Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
11Id. at 323.
12Id. at 323-25.
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must set forth evidence of specific facts showing the existence of a genuine issue for
trial.13 All evidence presented by the non-movant must be believed for purposes of
summary judgment, and all justifiable inferences must be drawn in favor of the
non-movant.14 However, the non-moving party may not rest upon mere allegations or
denials, but must show that there is sufficient evidence supporting the claimed factual
dispute to require a fact-finder to resolve the parties’ differing versions of the truth at
trial.15
IV. DISCUSSION
A. Comparative Fault is a Fact Question
Alaska’s comparative fault statute provides in pertinent part that
[i]n all actions involving fault of more than one person . . . the court . . .
shall instruct the jury to answer special interrogatories or, if there is no
jury, shall make findings, indicating (1) the amount of damages each
claimant would be entitled to recover if contributory fault is disregarded;
and (2) the percentage of the total fault that is allocated to each . . .
person responsible for the damages.16
The statute makes clear that comparative fault determinations are the province of the
fact finder: here, the jury.17 Although Coeur recognizes that it would be inappropriate for
the court to usurp the jury’s task of apportioning fault,18 its motion nevertheless seeks
judgment as a matter of law that DuBois’ actions amount to contributory negligence. In
13Anderson, 477 U.S. at 248-49.
14Id. at 255.
15Id. at 248-49.
16AS 09.17.080(a).
17DuBois filed a jury demand in state court. Doc. 1-1 at 5. See also S. Alaska
Carpenters Health & Sec. Trust Fund v. Jones, 177 P.3d 844, 858 (Alaska 2008) (noting that
apportionment of fault under AS 09.17.080 is question of fact); State v. Kaatz, 572 P.2d 775,
781 (Alaska 1977) (“[I]t is clear [that] the apportionment of percentages is a question of fact, not
of law.”).
18Doc. 33 at 6 n.38.
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other words, Coeur is asking the court to apportion fault to DuBois at a percentage
greater than zero. This, the court cannot do.
Coeur cites a case from the Eastern District of California, United States v. Sierra
Pacific Industries,19 in support of its argument that the court should determine DuBois’
contributory negligence as a matter of law. The Sierra Pacific court ruled as a matter of
law that the plaintiff could not be at fault for certain conduct because it owed no duty to
act under the circumstances.20 This holding is inapplicable here because it pertains to
whether a party owed a duty of care. It is appropriate for a court to resolve this question
because “[t]he existence and extent of a duty of care are questions of law for the court
to determine.”21 The questions presented here are of a different variety: Coeur states
that the two questions presented are “whether DuBois breached his duty as a mine
inspector to competently [] inspect the handrail” and whether he should therefore “be
allocated comparative fault.”22 Because breach and causation present questions of
fact,23 Coeur’s motion will be denied.
B. Severe Permanent Physical Impairment
Alaska Statute 09.17.010 generally caps noneconomic damages arising out of a
single injury or death at “$400,000 or the injured person’s life expectancy in years
multiplied by $8,000, whichever is greater.”24 This cap is raised to “$1,000,000 or the
19879 F. Supp. 2d 1128, 1134 (E.D. Cal. 2012).
20Id. at 1134. The court also held that whether the plaintiff's conduct otherwise
comported with the requisite standard of care presented a triable question of fact. Id. at 1135.
21Beck v. State, Dep’t of Transp. & Pub. Facilities, 837 P.2d 105, 109 (Alaska 1992).
22Doc. 55 at 1.
23Bolieu v. Sisters of Providence in Washington, 953 P.2d 1233, 1235 (Alaska 1998).
See also Kelley v. Hyundai Motor Co., No. 4:09CV000894 JMM, 2011 WL 1533456, at *3 (E.D.
Ark. Apr. 21, 2011) (“Because disputed issues of fact exist on the issue of proximate cause, the
Court finds that summary judgment is not proper.”).
24AS 09.17.010(b).
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person’s life expectancy in years multiplied by $25,000, whichever is greater” if “the
damages are awarded for severe permanent physical impairment or severe
disfigurement.” 25 Coeur seeks a ruling that the lower cap applies here because DuBois
cannot show he has suffered a severe permanent physical impairment.
Prior to its amendment in 1997,26 AS 09.17.010 provided that there was no cap
on noneconomic damages for “severe physical impairment.”27 The Alaska Supreme
Court interpreted this phrase in State v. Johnson,28 by reference to the definition of
“physical impairment” found in Title 45, Part 84, of the Code of Federal Regulations.29
That regulation defines “physical impairment” as “any physiological disorder or
condition, cosmetic disfigurement, or anatomical loss affecting one or more of the
following body systems: neurological; musculoskeletal; special sense organs;
respiratory, including speech organs; cardiovascular; reproductive, digestive,
genito-urinary; hemic and lymphatic; skin; and endocrine.”30 Although Johnson did not
define the precise contours of which impairments qualify as “serious,” it held that the
impairment before the court so qualified because it caused the loss of “the normal use
of a body system necessary for day-to-day life.”31 This language appears to track the
definition of “handicapped person” from 45 C.F.R. § 84.3(j) as meaning someone whose
physical impairment “substantially limits one or more major life activities,”32 including
25AS 09.17.010(c).
261997 ALASKA SESS. LAWS, ch. 26 § 9.
27AS 09.17.010(c) (1996). See also State, Dep’t of Corr. v. Johnson, 2 P.3d 56, 64
(Alaska 2000).
28Johnson, 2 P.3d at 65.
29Id. at 65 n.42.
3045 C.F.R. § 84.3(j)(2)(i).
31Johnson, 2 P.3d at 65.
3245 C.F.R. § 84.3(j)(1).
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“caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.”33
The word “permanent” was added to AS 09.17.010(c) in 1997. The Alaska
Supreme Court has described “severe permanent physical impairments” as those that
“are so significant that they will permanently and seriously alter the course of the injured
person’s life.”34 The question whether a person has suffered a severe permanent
physical impairment is ordinarily a question of fact for the jury, but it can be answered
as a matter of law where reasonable persons cannot differ as to the facts.35 The trial
court must make a threshold determination that a juror could reasonably find that the
plaintiff suffered from such an impairment before submitting that question to the jury.36
Coeur does not dispute that DuBois’ injury, which it describes as “a compression
fracture of his T-11 vertebra,” qualifies as a “physical impairment.”37 Instead, it argues
that his subsequent “medical consultations, steroidal injections, and physical therapy”
led to improvements and, as of January 2013, his physical impairment was no longer
severe or permanent.38 It relies on two pieces of evidence. First, Coeur cites a
January 29, 2013 functional capacity evaluation (“FCE”) performed by physical therapist
Shasta K. Hood.39 Ms. Hood’s FCE concludes that DuBois “demonstrated the ability to
meet the physical demand requirements of a Supervisory Mine Inspector.”40 The FCE
33Id. § 84.3(j)(2)(ii).
34L.D.G., Inc. v. Brown, 211 P.3d 1110, 1136 (Alaska 2009).
35Johnson, 2 P.3d at 65.
36Cf. City of Bethel v. Peters, 97 P.3d 822, 828 (Alaska 2004).
37Doc. 35 at 12.
38Id. at 12-14.
39Doc. 34-8 at 1-9; Doc. 34-9 at 1-4; Doc. 34-10 at 1.
40Doc. 43-8 at 1.
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also concludes, however, that “[d]eficits identified during testing include significant
deficits in cervical, thoracic, and lumbar spine ROM, Strength deficits noted in L UE and
LE. Moderate symptom increase with push/pull activities.”41 Next, Coeur cites the
report of Dennis Chong, MD, a physiatrist that it retained to review DuBois’ medical
records. Dr. Chong’s report states that he reviewed DuBois’ medical history and
deposition testimony. He states that he specifically reviewed the FCE, and he
concludes without explanation that it is “valid and reliable.”42
DuBois contends that his back injury is severe and permanent. Among other
things, he cites:
∙ A February 21, 2013 report of Larry A. Levine, M.D. that apparently
concludes that it would not be safe for DuBois to work as a full time
Supervisory Mine Inspector;43
∙ A July 18, 2013 report of Occupational Medicine Consultant Neal L.
Presant, M.D., M.P.H. that concludes that DuBois’ back condition is likely
permanent, “[h]e is limited in his ability to perform any heavy labor,”
“[h]eavy lifting, squatting, climbing ladders, and walking on uneven ground
could be hazardous for him,”44 “he would have permanent limitations from
his back that would prevent him from doing any work that required more
than light physical labor,”45 and his medical condition limits his following
major life activities: ambulation, lifting, and general mobility.46
41Id.
42Doc. 34-7 at 14.
43Doc. 34-4 at 11.
44Doc. 51-6 at 1.
45Id. at 2.
46Id.
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∙ An August 14, 2015 affidavit of his treating physician, Susan Klimow,
M.D., who states that (at least as of November 2014, when she stopped
treating him) DuBois was unable to do his job as a mine inspector based
on the symptoms of his lower back pain that radiated to his leg.47
∙ DuBois’ own deposition testimony where he states that as a result of his
injury he is no longer able to perform activities such as cooking, grocery
shopping, household repairs, yard work, sex, fishing or hunting.48
Coeur has not met its burden of showing that there is no genuine dispute as to
the severity or permanency of DuBois’ physical impairment. Its evidence tends to show
that DuBois is capable of performing the job requirements of a mine inspector, but this
is not the same thing as establishing that DuBois’ impairment is neither severe nor
permanent. Further, DuBois’ evidence affirmatively demonstrates a genuine dispute as
to these issues. Because a jury could reasonably find that DuBois’ fall caused him to
suffer a severe permanent physical impairment, Coeur’s motion will be denied.
IV. CONCLUSION
Based on the preceding discussion, Coeur’s motions for partial summary
judgment at docket 33 and 34 are DENIED.
DATED this 19th day of November 2015.
/s/ JOHN W. SEDWICK
SENIOR UNITED STATES DISTRICT JUDGE
47Doc. 51-1 at 1-2.
48Doc. 46 at 8-10.
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