issue in this case is the fact that it is a federal employer's liability case and that under the longstanding rules revived by the united states supreme court particularly matter how small that plays any part in connection with the injury is sufficient to take the matter to the jury and fundamentally what the district court did here is take that away and i would submit that under those precedents and even even if you were to dismiss the plaintiff's submission as in violation of the local rules which i do not believe it was if you look carefully at our submission in that case it does reference specific paragraphs of the of the defendant's motion but even if we just look at what the the railroad style with relevant because your honor he had a particularly shall i say vociferous approach of threatening people and in fact about a year or year and a half before there was a petition signed by twenty four employees who put their name and their signatures on it complaining and saying specifically that his threats his intimidation created an unsafe working environment and that that could lead to accidents precisely what was what happened here and nothing had been done about that so that this particular yes because in this particular accident there had been pressure placed upon mr holloway to get certain work done and one of those tasks ultimately which was assigned to one of his superiors and then to him was to move these various generators which were stored in a building that was occupied and apparently they had gasoline in them and johnson said he wanted them out they had been left there apparently for a number of years the wheels of the generators had been taken off and they had been stored historically there had been you know you know manpower is often an issue in  employment and certainly in the railroad and specifically here if i could address this issue of that pressure on him mr on mr holloway mr holloway was a union member he was a foreman union member he was not an officer of the company he was not a manager of the company the railroad i think that's a very good of trying to make him into something more than he was it's clear in the record he wheel that i would suggest alone is sufficient negligence under the feel i under that right under rodgers just submit this matter to the jury and so even apart from the intimidation factor of nell's johnson i believe that should we certainly should have been entitled to explore that and we were prohibited from doing that and that that also under the president's the cases we have cited is sufficient negligence on the part of the railroad and it's a factual question ultimately your honor as to whether that kind of pressure cause or contributed to the injury and that's a decision that is to be made by the jury not by the judge the district court in this case i believe took many of those fact finding issues including for see ability which under a supreme court's but president the gallic the the bug bite case where and it's bit by a bug and ultimately loses his leg for us to belittle the supreme court said is a matter that should be left to the jury and that again all these things were taken away from mr holloway by the just record i believe in roni asli look at the district court if you as you carefully read the opinion at one point the judge says that you need more than a scintilla of evidence of negligence that may be true in a typical case and they actually so the cases that are cited on they are different from any other cases in the supreme court has recognized that and this spatter should have been allowed to go to the jury for that in the course and for the jury would be one johnson generator so he would it would i think that's well phrased your honor but i think perhaps he was just moving it when there was the oh the didn't have the equipment available the railroad should have provide should be allowed to do it was taken away here that's the real fundamental issue in this is the jury are bound to find that he was under such compulsive pressure psychological or otherwise to do what he did on that particular day that would be one of the things that the jury could consider then jury could also consider that the dolly had a broken wheel the jury could consider that there were that the wheels had been nominated a broken wheel dolly or the broom that would have nothing to do with john railroad has its obligation to provide reasonably safe tools and equipment that is the overarching principle of the yes c l a they have to make sure that the equipment is there they have to provide the proper training they have to thirty nine the supreme court of the congress made a minutes to the f e l a and removed the fellow servant rule removed assumption of the risk and i would suggest to you also that many of under motions in limine a i think at trial on that particular issue as some time the issue between what may be contributory negligence what may be assumption of the risk is not always perfectly crystal clear i would not suggest that but i would say that there are times that it is clearer than other and putting a man in the position here where he has you know he has to do to move the square comes that that that it's the motion for there's two parts the we don't rest the case the negligence does not rest solely on no it's johnson being a horrible manager ok that is that is one and i think it is a significant area of negligence that we've cited some cases that show that in fact that kind of pressure meets the the standard of negligence and i would note again the precisely the case that here we believe we have significantly more than pigeon bone broth of course but that really the point here is that showed that the that bar is very very low and it appears that the district court was looking at other types of cases maybe other personal injury cases or i believe some of the citations were to an ego see case where the the the standard for  thirty five years they may be a little less rare than hen's teeth but this quarter's affirms armory judgment f e l a case is a number of occasions there sitting there on my on my on my table and judge woman was on a all learned in law school which is duty for c ability breach was asian damages the only element that is relaxed is causation and that's because that pesky language in the in the f b i way that says in whole or in part if the negligence caused the cases including this case the courts these cases the other elements which judge autrey found there was no record evidence to controvert specifically negligence which is did the railroad provide a reasonably safe place to work and foreseeability was ever see ability of this incident the the standard and the burden is the same and respectfully to counsel our statement of undisputed material facts was deemed admitted it wasn't it wasn't it wasn't some controversial own and we pointed out in our brief that it was argumentative and at times not supported by citation of the record but judge audrey had our statement which were direct quotes from the deposition of the plaintiff for instance on this pesky doll issue paragraphs twenty nine thirty and thirty one of union pacifics statement of undisputed material facts deemed admitted daughtry had no other record before this incident plaintiff never complained he needed a ramp boom dolly or forklift before this incident he did not try to obtain any special tools and you cannot attain a dolly fork with before moving the generator and in fact if you look at page two fifty five his deposition he says i didn't think i needed a dollar plaintiff was a foreman he had the authority in fact the record is there were ten employees earlier that day he could have asked to help him lift this the reason in the record is because he'd done this before by himself it in think he was going to get hurt in fact the evidence is he moved that generator four times that morning without getting hurt he moved it from the depot he moved it from the truck he moved it up to where he eventually leaned over on the fifth time he had some pain sometimes we all know as we get age pain happens but this is not a worker compensation statute to clear the courts are clear on that you have to have record evidence in this case of negligence and record evidence for c ability and there was none presented to judge doctor let's see the lack of for this the ability was  this was again at paragraph twenty nine of the statement mr holloway never complained he needed a rap boom for clifford dish will help so there was no notice to the railroad that this that this dolly was broken there's no discussion at all that this dolly was even of available that day he is just a mention of a broken dolly he said he could do it safely by himself he'd done so before without injury and as i said before paragraphs twelve through fifteen he'd move that generator that time that morning four times without injuring themselves so where was their notice that the railroad quote unquote knew that lifting this generator was an unsafe task there just was not mr reynolds response to my question along those lines was that the railroad has a duty to provide a safe place correct which i think sort of implies they didn't have to know the specifics dollywood said well in response to that the response that is the railroad has to provide a reasonably safe place to work that's the best finish and of of of the duty you must provide a reason we safe place to work given that mr holly was a foreman given that he had the opportunity to have asked for help him self given that he'd done this job before given that he didn't think he needed any of these tools judge acri look at this uncontroverted record in our statement of facts and said where's the negligence where is the providing of an unsafe place to work here this man the record is he was told to move the generator six months ago and he decided finally that morning after some conference calls and e mails i'm sorry that he would get out and try and do this by himself which he had done before he said i was going to try and move on a smaller generators i've done it before i had a problem where is there notice i mean he is a supervisor he is the man if you will to you know it's not the lifting cases even some have been affirmed the lifting cases all involve in fact the gibbs vs union pacific case which they cite in their brief a district court over in illinois talks about  employees being told to work under duress they didn't have enough help they didn't have lifting none of those facts are here in fact the gibbs case is i think although they cite it we respond to it and it's a crucial distinction in this case because in gives a lifting case he was he was in a rush the gang was understaffed it was a hectic day and he had an receptive supervisor supposedly mr johnson all different facts here these facts are much closer to the case that the gibbs talks about waddy act versus illinois central where the plaintiff said i had a sufficient and adequate tools i tried to do it manually because i'd done it before i didn't think i needed help and he did it because he'd done it and the cases where lifting cases where summary judgment has been reversed or in those facts where a foreman said get out there and do it and then somebody complain and say well we sure wish we had a boom we'll do it anyway again as a supervisor he is the railroad he is the judge autrey is saying is under the record evidence again uncontroverted where is the faired provide a safe place to work and that's why this dolly issue does bother me when he does large provide his own safeways he was yes in fact he in fact he says in the reply brief they make what i consider a helpful admission that they've really narrowed it they really had narrowed their theories down to two one a failure to provide safe equipment and sufficient systems and to failure to properly educate and train the record evidence was just the opposite because mr holloway did not ask for assistance because he didn't think he needed it and he testified he followed union pacific training he did a lone job worker briefings if you're going to do a job by yourself the rules require and this is in the record you have a briefing with yourself believe it or not and disks and identify what the risks are and he said the only risk was using proper lifting technique and in his statement of material facts he admitted he was trained by the railroad to do safe lifting he followed that technique negligence where was the failure to provide training where was a failure to find a safe place to work that if they've narrowed the issue so that the record evidence was just the opposite  had heard his back lifting but he had had no problems carrying heavy or items before exactly on point in fact here we have a supervisor not a laborer to use judge woman's accurate characterization and vid lacked he had had no problems carrying heavier items here in this case it's undisputed mr holly testified i carry generators before i had never hurt myself ect he picked out a smaller one specifically that morning to try to make it look like he was doing his job they've been told to do six months earlier i didn't bring  and it's paragraphs twelve through fifteen of our statement of undisputed facts and there is no evidence in the record i looked i was curious myself i didn't take the deposition my colleague mr hicks did there's no even in their statement of undisputed serial facts there's no evidence of what it weigh evidence of its weight and i know that mr holloway described as one of the smaller generators and he had left them before by himself and yes the four movements before are at paragraph twelve of our undisputed statement of facts where he got out of the depot haloed on his truck he moved the truck got it out of the truck moved it to the edge of this cabin and then didn't get hurt when tillie tried to lift it into the cabin briefly let me discuss the first twenty seven pages of our brief i was embarrassed it took us a long to get the summary judgment but the first two points on appeal were whether the court of use its discretion and in denying a motion to compel and whether it abused its discretion so there's been no linkage of how the denial of that motion had anything to do with the ruling on summary judgment and again abuse of discretion standard would apply and the most protective order what happened there was the written discovery requests were rife with all these questions about mr johnson mr johnson was deposed and he he was deposed in fact when after the motion was filed they asked leave to take his deposition they do not cite one piece of that testimony in response to the most for summary judgment there was nothing in that deposition that they thought would even was relevant to the case and that's because johnson was nowhere near the scene of the accident he didn't do anything with mr holloway he fact his only relevance was six months earlier he said the generators got to get moved so that the idea that the court abuses discretion in saying questions about his management style are off limits again they took a deposition they didn't use any of it in response to our motion and they never under rule fifty six asked for another deposition which they could have there's only other people and of course there's always the biggest corporate rep deposition that we get in these cases and that was never tried when they prohibited from asking the questions about management style at the deposition glider well that there is true and judge that the whole thing about about johnson let me ask the question yes or isn't there isn't at least arguable that pressure from johnson led holloway to move the generators without getting any help at least i think that's the argument there if if the facts were different maybe but johnson the only evidence is johnson in june or july said those generators got to get moved and they are and the supervisors are not noted for their gentility but in some cases yes true is a tough way to make a living it is live on the other hand it's also the american dream the  but it was an attempt to bring up the kinds of things the johnson case and i cite you to crown vs union pacific where it was really was an attempt to create a negligent infliction of emotional distress claim because of having to work with stressful bosses and that the court has significantly narrowed that and said you can't have an f e l a claim for negligent infliction because you would impose a duty to avoid creating a stressful work environment and therefore dramatically expand employers f e l a liability to cover the stresses and strains of everyday employment what we had here is a stressful supervisor who angered a number of people months earlier and yes they signed a petition but there is no link in the record between that and mr hollow words also as there was no link even in their material facts to that to that in fact judge author i think called speculation that there was any link between that in his opinion i could find it if you like but  this way there's a whole separate law body under under or an unacceptable workplace conduct you know there's there's they have their own statues they have their own plec bargaining agreements they there's the the f r a that's that's you know if mr if mr later i believe as to the weight of the generator that just woman you were asking about i don't believe there is anything formal and in the record i did see there was one item that we submitted i don't know that made it to the district court showing it at one hundred sixty nine pounds we have inferentially from his description in the deposition portions submitted by the railroad again is about the his dragging of this using a mate using a pallet as a makeshift ramp to haul it on to the pickup truck they didn't have a ramp and specifically to the  the issues again this is what it was before the the trial court said do you think you needed any special tools i'm reading from this is from the a den the to me the he is then asked did you what did you do to obtain a ramp or a generator to move that or a boom or a dolly to move the generator well there's no way i can get a boom on my truck they to they want to move before i could have got it before i got the ramp and the two wheel dolly it belonged to maine sway and it was broke so i couldn't use it you know i mean that is in the record before the the judge a back fusion and that's what the claim that that pressure contributed to the actions and what happened here is a injury claim there is no claim for emotional distress alone under the l google and i read book review by  we again that has zero to do with this case it's that little tax issue under the railroad retirement act yeah that's right we'll see how we did my little case went to the supreme sin so i mean it was very interesting so anyway i'm sorry for taking all your time and from very well counsel we appreciate your appearance and arguments