IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

TODD HUDSON, as personal )

representative of the Estate )

of WILLIAM HUDSON, Deceased, )

 )

Plaintiff, )

 )

vs. ) CAUSE NO. 2:16-cv-41

 )

ARCELORMITTAL BURNS HARBOR, )

LLC, formerly known as ISG )

BURNS HARBOR, LLC, )

 )

Defendant. )

OPINION AND ORDER

This matter is before the Court on the: (1) Defendant’s Motion

for Summary Judgment, filed by Defendant, ArcelorMittal Burns

Harbor LLC (“ArcelorMittal”), on May 25, 2017 (DE #38); (2)

Defendant’s Motion to Exclude or Bar Gregory Pestine, filed by

Defendant ArcelorMittal on July 10, 2017 (DE #46); and (3) Motion

to Strike Plaintiff’s Reference to Subsequent Remedial Measures

From Its Brief In Opposition to Defendant’s Motion for Summary

Judgment, filed by Defendant ArcelorMittal on July 10, 2017 (DE

#47). For the reasons set forth below, the Motion for Summary

Judgment (DE #38) is GRANTED; the Motion to Exclude or Bar Gregory

Pestine (DE #46) is DENIED AS MOOT; and the Motion to Strike

Plaintiff’s Reference to Subsequent Remedial Measures (DE #47) is

DENIED AS MOOT. The Clerk is ORDERED to DISMISS this case WITH
PREJUDICE and to CLOSE this case. 

BACKGROUND

This premises liability case revolves around the death of

William Hudson, an employee of Tranco Industrial Services, Inc.,

Defendant ArcelorMittal’s snow removal contractor. Hudson died

from a fatal heart attack that occurred after his loader/backhoe

ran into a raised manhole cover that was buried under 17 inches of

snow. 

There has been extensive briefing in this case. Defendant

moves for summary judgment. (DE #38.) It argues that a landowner is

not required to warn its independent contractors about known facts. 

Additionally, it contends that the alleged hazard (the snow-covered

manhole) only existed because of the very condition that Tranco was

hired to address on ArcelorMittal’s premises; therefore, the hazard

was specific to the work Tranco was performing. Finally, Defendant

argues that ArcelorMittal did not have “superior knowledge” of the

hazard, and therefore cannot be liable for failing to instruct or

warn Hudson. 

In response, Plaintiff claims that ArcelorMittal had a duty to

provide Hudson with a reasonably safe work place and to warn him of

the presence and hazard of the buried manhole. Plaintiff also

argues that superior knowledge is not required here, because Hudson

was not killed by the very condition he was employed to address. 

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(DE #42.) 

Defendant filed a reply brief on July 10, 2017 (DE #45). It

also filed a sur-reply on September 14, 2017 (DE #57). In the surreply, ArcelorMittal identified a case recently decided by Judge

Cherry in the Northern District of Indiana, Strominski v.

ArcelorMittal USA, LLC, No. 2:15-cv-122-PRC, 2017 WL 3034975 (N.D.

Ind. Jul. 17, 2017), and urges this Court to follow the logic in

Strominski. Strominski also involved a plaintiff who was injured

at a different ArcelorMittal facility. While operating a payloader

and clearing snow, his machine struck a protruding manhole cover

and Strominski was injured. In Strominski, the Court granted

summary judgment in favor of ArcelorMittal. In its sur sur-response

(DE #62), Plaintiff attempts to distinguish Strominski by pointing

out that the Daily Work Authorization in this case made

identification of hazards a joint responsibility between Tranco and

ArcelorMittal, in contrast to the Daily Work Authorization in

Strominski, which did not contain a requirement for hazards to be

jointly identified by Tranco and ArcelorMittal. Plaintiff also

filed with the Court the Daily Work Authorization to be part of the

record. (DE #66.) Defendant counters by maintaining that control

or responsibility of the premises is not a material factor, but

rather the issue of superior knowledge is dispositive. (DE #65.) 

Aside from the motion for summary judgment, ArcelorMittal also

filed a motion to exclude or bar Gregory Pestine, claiming he lacks

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the requisite training, education, experience, and knowledge to

offer an expert opinion about warnings (DE #46). In response,

Plaintiff argues that he is qualified and his expert report

comports with Federal Rule of Evidence 702 and Daubert. (DE #50.) 

Defendant filed a reply on August 14, 2017. (DE #52.)

Finally, ArcelorMittal also filed a Motion to Strike

Plaintiff’s reference to subsequent remedial measures from its

brief in opposition to Defendant’s motion for summary judgment. 

(DE #47.) Defendant argues that citing the fact that reflective

posts and slag were installed after the accident to mark the

manhole covers is inadmissible under Federal Rule of Evidence 407. 

In opposition, Plaintiff claims that the evidence is relevant in

proving control and the feasibility of precautionary measures. (DE

#51.) Defendant filed a reply brief on August 14, 2017 (DE #53).

All three motions are fully briefed and ready for

adjudication. 

DISCUSSION

Summary judgment must be granted when “there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine

dispute of material fact exists when “the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct.

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2505, 91 L. Ed. 2d 202 (1986). Not every dispute between the

parties makes summary judgment inappropriate; “[o]nly disputes over

facts that might affect the outcome of the suit under the governing

law will properly preclude the entry of summary judgment.” Id. To

determine whether a genuine dispute of material fact exists, the

Court must construe all facts in the light most favorable to the

non-moving party and draw all reasonable inferences in that party’s

favor. See Ogden v. Atterholt, 606 F.3d 355, 358 (7th Cir. 2010). 

However, “a court may not make credibility determinations, weigh

the evidence, or decide which inferences to draw from the facts;

these are jobs for a factfinder.” Payne v. Pauley, 337 F.3d 767,

770 (7th Cir. 2003) (citations omitted). 

A party opposing a properly supported summary judgment motion

may not rely on allegations in his own pleading but rather must

“marshal and present the court with the evidence [he] contends will

prove [his] case.” Goodman v. Nat'l Sec. Agency, Inc., 621 F.3d

651, 654 (7th Cir. 2010). “[I]nferences relying on mere

speculation or conjecture will not suffice.” Stephens v. Erickson,

569 F.3d 779, 786 (7th Cir. 2009) (citation omitted). If the nonmoving party fails to establish the existence of an essential

element on which he bears the burden of proof at trial, summary

judgment is proper. See Massey v. Johnson, 457 F.3d 711, 716 (7th

Cir. 2006). 

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Undisputed Facts1

ArcelorMittal contracted with Tranco to maintain the railroad

tracks used to ship products and materials in and out of

ArcelorMittal’s steel mill in Burns Harbor, Indiana, including

plowing snow. Ryan Hopkins, a general foreman of Tranco, was known

as the “snow commander.” As the snow commander, Hopkins took care

of the thoroughfares, roads, and parking lots. Another Tranco

foreman, Juan Luna, took care of the railroad tracks and switches.

Tranco performed work on ArcelorMittal’s premises every day,

and had an on-site trailer on ArcelorMittal’s site. Tranco

purchased its own equipment and determined which equipment should

be used by its employees, including the payloader Hudson was

operating on the day in question. Tranco monitored the weather

patterns to anticipate the scope of its snowplowing work, and then

Hopkins (the “snow commander”), designated personnel to plow

specific areas. Each snow plowing shift had to be authorized by a

written work authorization from ArcelorMittal, and ArcelorMittal

did give Tranco some direction on the work they needed done. 

(Hopkins Dep. at 111; Beck Dep. at 50.) Ultimately, staffing a job

was authorized and approved by ArcelorMittal. Moreover, the Daily

Work Authorization form specifically states that “[h]azards must be

1

 For the sake of brevity, the Court has not included the

record citations for each undisputed fact. However, it has

verified each in the record, and has noted the citation where

facts are disputed. 

6
jointly identified and reviewed by ArcelorMittal representative and

contractor representative.” (DE #42-14.)

The possibility of a plow striking a snow-covered object is a

hazard that is present in Tranco’s snow removing work. Tranco

provided training to its employees about snow removal, including

how to operate in snow at safe speeds and how to avoid contact with

covered obstructions in the snow. Tranco also held safety meetings

a couple times per month, and one meeting addressed “Cold Weather

Hazards” and included specific training on taking caution near

stationary objects while plowing snow. 

Hudson was a heavy equipment operator and at the time of the

accident, had been employed by Tranco as an operator for at least

seven years. Prior to working for Tranco, Hudson had worked other

jobs on ArcelorMittal’s premises for many years. Hudson was

described as one of Tranco’s best operators and Hopkins reported

that Hudson knew the whole mill. (Hopkins Dep. at 14-15,47-48;

Beck Dep. at 46-47.) Hudson typically worked five to seven shifts

a week, starting at 7:00 a.m. In the weeks before the incident, he

was working twelve to sixteen hour shifts, including at night, to

address the snowfall. 

On the day of the incident, about 17 inches of snow had

accumulated on ArcelorMittal’s premises. At about 7:30 p.m. on

January 9, 2014, Hopkins instructed Hudson to clear snow from the

area to the east of the 110 plate mill next to the railroad switch. 

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Hudson had plowed the area in question many times over the course

of many years before the incident, including on days when there was

a substantial amount of snow. While the parties dispute whether

this area was an authorized roadway or not, they do agree that

Tranco, ArcelorMittal, and other independent contractor employees,

used it as access to the rail switches and the railcars.

The actual incident was not witnessed by anyone. However,

Hopkins told Tim Beck that Hudson hit something, and he told Pete

Kinsler that Hudson’s machine hit a manhole. Hudson’s machine

stopped abruptly within an inch of a buried, raised manhole cover,

which is to the north of switch number 784. When discovered, the

backhoe had a broken windshield, it was found running, in reverse,

with the backup alarm on, and the bucket was down and full of snow. 

The parties do not dispute that Hudson struck the raised manhole

cover platform with his payloader, hit the windshield, and died of

a fatal heart attack on the scene.

Regarding the manhole cover, it had been present on the

property for approximately 40-50 years. It is used to provide

access to an underground pipe system. The manhole is situated

within a concrete platform that is approximately 4 or 5 inches

above grade. While there is some disagreement about how many other

vaults or platforms are on ArcelorMittal’s premises, ArcelorMittal

did a survey after the incident and located 65 valve pits and 12

electrical boxes on the property. (James Dep. at 25.)

8
There is evidence in the record showing that Hudson, his

employer, his supervisor, and his co-workers all knew of the

existence of the concrete platform and raised manhole cover to the

north of switch 784. Indeed, Hopkins testified that Hudson had

removed snow in that area on numerous occasions and that Hudson

knew of the existence of the manhole cover. (Hopkins Dep. at 48-

49.) Plaintiff argues that while they might have been aware of

where the manhole was, it was totally invisible on the night in

question because it was buried under 17 inches of snow. (DE #42 at

10.) 

Hopkins testified that, prior to the accident at issue, he did

not have any knowledge that any Tranco operator ever struck the

manhole in question during snow removal. (Hopkins Dep. at 44, 49.) 

However, there is testimony from Edward G. Reinke, a Tranco

mechanic, who testified in his deposition about “a couple of times

or an incident where it happened,” meaning the snowplow came into

contact with the manhole covers, and someone from Tranco would have

told someone from ArcelorMittal. (DE #42-9 at 40, 74-75.) Hopkins

did not consider the manhole cover a hazard, even with 17 inches of

snow. (Hopkins Dep. at 45.) 

A few days after the accident, Pete Kinsler of Tranco, with

ArcelorMittal’s authorization, brought the raised manhole up to

grade. ArcelorMittal also conducted a survey, and marked with

raised reflective markers the manhole at issue and other manholes.

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Gregory Pestine, Plaintiff’s retained expert, opines that the

raised manhole, which was within a roadway where vehicles and snow

removal equipment were expected to travel, was an “unreasonably

dangerous condition because it was unmarked and it was not

identifiable under 17 inches of snow.” (Pestine Expert Report, Ex.

R, at ¶ B.2.)

Plaintiff argues that, at a minimum, there are disputed facts

and allegations regarding control of the area at issue, and this

should preclude summary judgment. 

I. Premises Liability

 The parties agree that the complaint sounds in negligence,

and this case is based upon allegations of premises liability. The

Supreme Court of Indiana has specified, “[a]s a general rule, a

property owner has no duty to furnish the employees of an

independent contractor a safe place to work, at least as that duty

is imposed on employers.” PSI Energy, Inc. v. Roberts, 829 N.E.2d

943, 957 (Ind. 2005) (abrogated on other grounds). However, the

property owner must maintain the property “in reasonably safe

condition for business invitees including independent contractors

and their employees.” Id. Yet a “landowner ordinarily has no

liability to an independent contractor or the contractor’s

employees for injuries sustained while addressing a condition as to

which the landowner has no superior knowledge.” Id. at 961. 

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“[F]acts showing only that a landowner knows of a condition

involving a risk of harm to an invitee, but could reasonably expect

the invitee to discover, realize, and avoid such risk, may be

insufficient to prove breach of the duty.” Douglass v. Irvin, 549

N.E.2d 368, 370 (Ind. 1990). 

Indiana has adopted the Restatement (Second) of Torts

formulation of landowners’ liability to workers on the premises,

which provides:

A possessor of land is subject to liability for

physical harm caused to his invitees by a condition

on the land if, but only if, he

(a) knows or by the exercise of reasonable care

would discover the condition, and should realize

that it involves an unreasonable risk of harm to

such invitees, and

(b) should expect that they will not discover or

realize the danger, or will fail to protect

themselves against it, and

(c) fails to exercise reasonable care to protect them

against the danger.

Restatement (Second) of Torts, § 343. Further, section 343A(1)

should be read in conjunction with § 343 and it states that:

a possessor of land is not liable to his invitees

for physical harm caused to them by any activity or

condition on the land whose danger is known or

obvious to them, unless the possessor should

anticipate the harm despite such knowledge or

obviousness.

Restatement (Second) of Torts, § 343A(1). 

Magistrate Judge Paul R. Cherry recently decided a very

similar case, involving a snow plow accident at a different

11
ArcelorMittal plant. Strominkski v. Arcelormittal USA, LLC, 2:15-

cv-122-PRC, 2017 WL 3034975 (N.D. Ind. July 17, 2017). In that

case, an employee of Tranco was injured when he struck a raised

manhole cover while plowing snow. Judge Cherry recapped the

Restatement law as subjecting a landowner to liabilities for

injuries to invitees caused by a condition on the land only if the

landowner meets three requirements:

(1) the landowner “knows or by the exercise of

reasonable care would discover the condition, and

should realize that it involves an unreasonable

risk of harm” to the invitee; (2) the landowner

should expect that the invitee “will not discover

or realize the danger, or will fail to protect

themselves against it;” and (3) the landowner

“fails to exercise reasonable care to protect [the

invitee] against the danger.”

Strominski, 2017 WL 3034975, at *4 (quoting Restatement (Second) of

Torts § 343); and citing Smith v. Baxter, 796 N.E.2d 242, 244 (Ind.

2003). 

In Strominski, ArcelorMittal argued that it could not be held

liable for the injuries because the employee was injured while

performing the specialized work that Tranco was hired to do, and

because ArcelorMittal had no superior knowledge of the raised

manhole cover. ArcelorMittal makes the identical arguments in this

case. 

A landowner cannot be liable where the alleged liability

relates to a hazard associated with the condition or activity that

is the very reason for the independent contractor’s presence on the

12
property. PSI Energy, Inc., 829 N.E.2d at 958. Plaintiff argues

that PSI Energy requires a showing that a landowner has superior

knowledge of the dangerous conditions on the premises only when an

employee of the independent contractor is injured by the very

condition he was employed to address – and in this case, he argues

Hudson was not killed by the very condition he was employed to

address. (DE #42 at 16.) Plaintiff argues that Hudson “was killed

due to an unreasonably dangerous condition on the premises, not by

the snow.” (DE #42 at 17.)

In arguing Hudson was not injured by the condition he was

employed to address, Plaintiff relies heavily on Myers v. Bremen

Casting, Inc., 61 N.E.3d 1205 (Ind. Ct. App. 2016). In Myers, the

plaintiff was an electrician who contracted mesothelioma after

exposure to asbestos while working on defendant’s property. The

court described Myers’ work as follows:

[Myers’] duties generally included installing and

maintaining wire, conduit, light fixtures,

transformers, junction boxes, and circuit breakers. 

In carrying out these duties, [Myers] occasionally

worked near asbestos insulation and with products

containing asbestos. [Myers] was not warned of the

dangers associated with asbestos exposure. In

addition, he was neither trained nor hired to

handle asbestos, and he did not wear any protective

gear. 

Id. at 1210. In Myers, the Court found “the Defendants have not

designated sufficient evidence to establish [Myers] was injured by

the very condition he was employed to address” and there was a

question of fact regarding whether the plaintiff was injured by the

13
condition he was hired to address, because it was undisputed that

the plaintiff had no specialized knowledge about asbestos and was

not trained about how to handle it or avoid its associated risks. 

Id. at 1215-16. In stark contrast, Hudson worked with the

potentially hazardous snow daily (not occasionally like Myers), and

he was trained by Tranco regarding the potential risks of impacting

snow-covered objects, and taught how to avoid them. Tranco also

provided the equipment for Hudson. It is clear that Hudson died

while doing the very work Tranco was contracted to do, and while

addressing the condition (the snow) that allegedly caused the

raised platform to be hidden and cause a risk. 

Strominski addressed the identical argument, and distinguished

Myers too:

The relevant condition on the land that Tranco was

hired to address was the snow cover. Unlike in

Myers, there is sufficient evidence before the

Court indicating that encountering objects under

the snow is inherent in snow plowing, that

Strominski knew to prepare for this possibility,

and that Tranco instructed Strominski to take

caution when plowing due to the chance of objects

being buried under the snow. . . . Tranco and

Strominski both admittedly knew of the potential

for objects to be buried under the snow cover and

to allow for this possibility in plowing snow. 

Strominski was injured by the condition that he was

hired to address.

Strominski, 2017 WL 3034975, at *5. This Court concurs with Judge

Cherry’s reasoning, and finds that Hudson’s death was the result of 

the condition he was hired to address. 

Plaintiff also argues that summary judgment is improper

14
because it has raised a question of fact as to whether

ArcelorMittal had “superior knowledge” of the raised manhole cover.

(DE #42 at 18.) Specifically, Plaintiff points to the testimony of

ArcelorMittal’s Manager Carl Pfiefer, who Plaintiff alleges

testified “even before Hudson’s death he intended to have the

manholes marked in some way so that they could be visible during

snow events, but did not get around to it until after the

fatality.” (DE #42 at 18.) However, when viewed in the full

context of his deposition, Pfeifer testified:

Even before this incident, it had come to my

attention - - it had come to my attention that

there were times when manholes and valve pits

were difficult to located on the property;

particularly in the winter when there was more

than a couple of inches of snow. And under

those circumstance[s] those were

circumstance[s] where the Air, Gas & Water

folks would have to get at these locations to

shut off a valve or repair a leak or whatever. 

And it had taken some time to locate those. .

. . sometime in the first quarter of ‘14, I

asked Mike to have these valve pit covers and

manhole covers and et cetera located and

marked; primarily so our people could see them

and find them more easily and execute a repair

or, whatever they are trying to do, more

easily.

(Pfeifer Dep. at 45-46.) In other words, the main reason

ArcelorMittal considered marking the manholes and valve pits prior

to the accident was to facilitate access to them for repairs.

Pfeifer also testified that elevated manhole covers and valve pits

are very noticeable, even when covered by reasonable amounts of

snow, and that he believed a manhole platform only would pose a

15
hazard if someone is not intimately familiar with them. Id. In

this case, Hopkins (Tranco’s snow commander), testified that Hudson

was very experienced and familiar with the plant, Hudson had

removed snow there many times over the course of years, and that

Hudson knew of the existence of the manhole cover. (Hudson Dep. at

46-49.) “A duty to warn is predicated on the understanding that

individuals who have superior knowledge of the dangers posed by a

hazard must warn those who lack similar knowledge. When an

individual is already aware of the danger, a warning is not

necessary.” Carter v. American Oil Co., 139 F.3d 1158, 1164 (7th

Cir. 1998). 

Regarding superior knowledge, Judge Cherry found in

Strominski:

[N]o warning from ArcelorMittal to Tranco or

Strominski was necessary. Tranco and Strominkski

were invited onto the property to plow snow, and

both Tranco and Strominski had years of experience

plowing snow. The evidence shows that Tranco

plowed the area at issue here hundreds, or perhaps

thousands, of times before the event at issue. The

pathway where the raised manhole cover is located

is not a main roadway for ArcelorMittal. The snow

cover was easily observable, so ArcelorMittal was

entitled to expect Tranco and Strominski to take

due precaution to protect themselves against the

dangers presented in plowing snow, which Tranco and

Strominski both testified includes the potential of

striking objects buried beneath the snow cover. 

ArcelorMittal did not have superior knowledge of

the raised manhole’s condition and could not have

told Tranco anything about it that Tranco did not

already know. 

Strominski, 2017 WL 3034975, at *6. 

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Similarly, the Tranco employees operated in this area daily

and at the time of the accident, Hudson had plowed snow on this

site for at least seven years. There is evidence in the record

that Tranco was aware of the risks posed by striking snow-covered

objects, and that Tranco conducted training specifically about how

to avoid contact with covered obstructions in the snow. Tranco was

a specialized contractor that had specific knowledge about the

risks inherent in plowing work. There are no facts in the record

suggesting that ArcelorMittal was involved in determining how to

safely conduct snowplowing on its premises. With regard to the

specific manhole at issue in this case, Plaintiff cites testimony

that ArcelorMittal “didn’t even know [the platform] was there.” 

(DE #42 at 10.) Tranco’s vice president testified about the

investigation on the night of the occurrence and answered,

“[Hopkins] said that he thought there was a manhole there, yeah. .

. . We were aware that there was something there.” (Beck Dep. at

83.) As such, this Court concurs with the analysis of Judge Cherry

and also finds that ArcelorMittal does not have superior knowledge

in this case. 

Plaintiff attempts to distinguish Strominski, relying on the

Daily Work Authorization Form. (DE #62-4.) It argues there is a

“stark difference” between Strominski and this case because the

Daily Work Authorization Form for the night of Hudson’s death

required the identification of hazards regarding snow plowing as a

17
joint responsibility between ArcelorMittal and Tranco. (Id. at 1;

DE #42-14.) The work authorization in Strominski did not require

ArcelorMittal to jointly identify the hazards with Strominski’s

employer. (DE #66-2.) It is true that the Daily Work

Authorization Form in Hudson’s case includes the phrase “hazards

must be jointly identified and reviewed by ArcelorMittal

representative and contractor representative,” while the Strominski

authorization does not include the same language. This issue,

which seems like one of control, was not an issue dealt with by

Strominski. Rather, recall that the Strominski Court recited that

a landowner “ordinarily has no liability to an independent

contractor . . . for injuries sustained while addressing a

condition as to which the landowner has no superior knowledge.” 

Strominski, 2017 WL 3034975, at *5 (quoting PSI Energy, Inc., 829

N.E.2d at 961.) A joint responsibility for identifying hazards

does not necessarily mean that ArcelorMittal had superior knowledge

of the hazard in question. Moreover, “[f]acts showing only that

a landowner knows of a condition involving a risk of harm to an

invitee, but could reasonably expect the invitee to discover,

realize, and avoid such risk, may be insufficient to prove breach

of the duty.” Id. (quoting Douglass, 549 N.E.2d at 370). 

In this case, there is no evidence in the record that

ArcelorMittal had a superior knowledge of the manhole cover or

potential hazard associated with it. Instead, there is evidence

18
that Tranco could have reasonably discovered and avoided any such

risk. As Judge Cherry said, “ArcelorMittal did not have superior

knowledge of the raised manhole’s condition and could not have told

Tranco anything about it that Tranco did not already know.” 

Strominski, 2017 WL 3034975, at *6. The same is true in this case. 

As such, this Court also reaches the “single inference” that

ArcelorMittal did not breach a duty to Hudson. Id.

Finally, the Court notes that consideration of the subsequent

remedial measures and the testimony by Plaintiff’s expert, Gregory

Pestine, does not alter the superior knowledge analysis set forth

in Strominski and followed by this Court. As such, the motions to

exclude and strike are denied as moot. 

CONCLUSION 

For the reasons set forth above, the Motion for Summary

Judgment (DE #38) is GRANTED; the Motion to Exclude or Bar Gregory

Pestine (DE #46) is DENIED AS MOOT; and the Motion to Strike

Plaintiff’s Reference to Subsequent Remedial Measures (DE #47) is

DENIED AS MOOT. The Clerk is ORDERED to DISMISS this case WITH

PREJUDICE and to CLOSE this case. 

DATED: January 9, 2018 /s/ RUDY LOZANO, Judge

United States District Court

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