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SMITH v. MEDICAL AND SURGICAL CLINIC ASS'N

No. 96-10913.

118 F.3d 416 (1997)

Michael SMITH; Amanda Kathryn Smith; Melissa Ann Smith, Plaintiffs-Appellants, v. MEDICAL AND SURGICAL CLINIC ASSOCIATION, doing business as Medical and Surgical Clinic Association, doing business as Advance Occupational, doing business as Advance Occupational; et al., Defendants, Burlington Northern Railroad Company, Defendant-Appellee.

United States Court of Appeals, Fifth Circuit.

July 31, 1997.

Attorney(s) appearing for the Case

Curtis Lee Cukjati, Cacheaux, Cavazos, Newton, Martin & Cukjati, San Antonio, TX, for Plaintiffs-Appellants.

Tracy J. Willi, Womble & Spain, Houston, TX, JoAnn Alan Storey, Houston, TX, for Defendant-Appellee.

Before SMITH, BARKSDALE and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

Appellant Michael Smith collapsed and suffered a head injury after receiving a flu shot administered under the auspices of his employer, Burlington Northern Railroad Co. Smith brought this statutory negligence action against Burlington Northern under the Federal Employers' Liability Act ("FELA" or "the Act"), 45 U.S.C. §§ 51-60. The district court granted summary judgment for the railroad, finding that Smith had failed to

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