WANDA BASS-BEY v. NEW JERSEY TRANSIT RAIL OPERATIONS, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4706-04T34706-04T3

WANDA BASS-BEY,

Plaintiff-Appellant,

vs.

NEW JERSEY TRANSIT RAIL

OPERATIONS, INC.,

Defendant-Respondent.

__________________________________

 

Argued: May 1, 2006 - Decided July 28, 2006

Before Judges Cuff, Lintner and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-3881-03.

Thomas J. Joyce, III, argued the cause for appellant (Hannon & Joyce, attorneys; Mr. Joyce, of counsel and on the brief).

Jean P. Reilly, Deputy Attorney General, argued the cause for respondent (Zulima V. Farber, Attorney General, attorney; Patrick DeAlmeida, Assistant Attorney General, of counsel; Karen L. Jordan, Deputy Attorney General, on the brief).

PER CURIAM

Plaintiff Wanda Bass-Bey, an employee of defendant New Jersey Transit Rail Operations, Inc. (NJT), filed a complaint pursuant to the Federal Employers Liability Act (FELA), 45 U.S.C.A. 51, to recover damages for workplace injuries. Specifically, plaintiff alleged that she developed bilateral carpal tunnel syndrome (CTS) due to the performance of routine tasks associated with her job. Plaintiff appeals from an order granting summary judgment in favor of her employer. We affirm.

Plaintiff was hired as a railroad car cleaner, an E cleaner, in October 1998. As an E cleaner, she swept railroad cars, picked up papers and other debris, mopped, scrubbed the back of seats and ceilings, cleaned the vestibule, removed trash, and replenished the water in the bathrooms. She worked from 10 p.m. until 6 a.m. and during each shift she was required to clean one-half of a rail car.

In March or April 1999, plaintiff began to experience pain, numbness and tingling in both of her hands. She went to see Dr. Patricia Brown, who recommended that she have an electromyogram (EMG). The test revealed that plaintiff suffered from CTS, which Dr. Brown attributed to plaintiff's work at NJT.

After approximately eighteen months as an E cleaner, plaintiff went to work as a coach cleaner at New York Penn Station. Plaintiff had similar, but less intensive, responsibilities as a coach cleaner. In this position she was required to clean eight to thirteen passenger cars during an eight hour shift. In March 2001, plaintiff became a passenger car inspector at the Meadowlands Maintenance Complex. As a car inspector, plaintiff had a variety of duties including replacing brakes, performing oil changes, painting passenger car roofs, replacing windows, and fixing train doors.

During her first two years at NJT, plaintiff also worked part-time for the Newark Board of Education as a dietician and a janitor. As a dietician, she put food on trays. As a janitor, she picked up garbage and swept floors.

Plaintiff's CTS progressively worsened during her employment at NJT. Conservative treatments, such as cortisone injections, wrist splints and anti-inflammatory medications, failed to alleviate her hand numbness. At the direction of her treating physician, Dr. Virak Tan, plaintiff had a surgical procedure, a left endoscopic carpal tunnel release, on February 12, 2002. For approximately a month following the surgery, plaintiff had physical therapy three to five times a week. Initially, the results of the surgery and therapy were promising, but the relief was temporary.

Plaintiff returned to work on April 17, 2002. At this time, she was a car inspector. Her hand continued to bother her and she complained to her foreman. The next day, she visited Dr. Tan, who performed another EMG. The EMG revealed continuing CTS; therefore, the doctor decided to perform a second operation on plaintiff's left hand. On May 31, 2002, an open carpal tunnel release was performed on the palm of plaintiff's left hand. After a month of post-operative physical therapy, plaintiff reported that her left hand had improved. On September 13, 2002, Dr. Tan performed an open carpal tunnel release on plaintiff's right hand. She responded well to that procedure.

As a result of the bilateral CTS, plaintiff was absent from work between April and August 1999, February 11 and April 17, 2002, and April 18 through October 2002. Although she responded well to the surgical procedures, plaintiff stated at her October 2002 deposition that her hands still bothered her.

Prior to trial, NJT sought a ruling that plaintiff was required to produce a liability expert to identify the negligent conduct by NJT. The employer argued then, and reiterates on appeal, that a plaintiff in a FELA case alleging the development of CTS at the workplace requires expert testimony to identify the risk factors associated with job tasks and the standard of care of a reasonable employer in that situation. Plaintiff responded with an outline of the evidence that she was prepared to present at trial.

According to plaintiff, Dr. Ira Esformes, a board certified orthopedic surgeon who evaluated plaintiff in November 2004, would have confirmed the diagnosis of bilateral CTS. He would have testified that the pre-surgical conservative therapies, and the three surgical procedures and post-operative physical therapy were reasonable and necessary treatments. He was also prepared to testify that the repetitive motions involved in plaintiff's occupation caused the bilateral CTS. In particular, "the use of constantly picking up seats, utilizing washcloths on a repetitive basis, carrying out trash" caused the CTS. He would also have testified to a reasonable degree of medical probability that plaintiff was sufficiently exposed to occupational risk factors, such as repetition, force and awkward postures through her employment, and that those factors were a substantial contributing factor to the development of the CTS.

Plaintiff was also prepared to present the testimony of Elizabeth Schneider, the former Medical Director of NJT, and Stephen Klejst, the NJT Safety Director, from the 1996 trial of another NJT employee who filed a CTS claim against NJT. At that trial, Schneider testified that she was aware of CTS in 1996, but had not discussed CTS with NJT medical personnel at that time. Since 1996, she had periodic discussions with NJT nurses about CTS and its prevention. She also testified that she was aware that other NJT personnel had developed CTS, but that those employees were employed in bus, rather than rail operations and each had been involved in a traumatic event, such as a motor vehicle accident.

At the same trial, Klejst testified that he had no knowledge of CTS in 1996. He acquired information over time, but had not met with NJT management to discuss the prevention of CTS nor implementation of a CTS prevention program.

Finally, plaintiff intended to present the trial testimony of another NJT employee, Carlos Sosa, who had worked as a car inspector and developed CTS in 1992. During the other employee's trial, Sosa testified that his condition was caused by his work as a car inspector. He named other NJT employees who had developed CTS in the course of their employment with NJT. He also testified that NJT had not discussed CTS with employees or informed them of the condition through brochures.

Prior to trial, the judge held that there was insufficient evidence to support plaintiff's FELA claim. He determined that plaintiff was required to present expert testimony regarding workplace safety so that the jury could determine "whether the standards of work conduct prevailing at plaintiff's job site were inadequate to protect her and similarly situated employees." Further, plaintiff's failure to "submit expert liability reports of any kind" was "contrary to the case law developed under [FELA]." Therefore, the judge dismissed plaintiff's complaint. In denying plaintiff's motion for reconsideration, the judge stated that "[p]laintiff has provided no competent proofs to establish precisely what a safe working environment is or how [NJT] failed to provide same," and that an expert was required to do so.

FELA provides in pertinent part:

Every common carrier by railroad . . . shall be liable in damages to any person suffering injury while he is employed by such carrier . . . for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery . . . or other equipment.

[45 U.S.C.A. 51.]

FELA may be characterized as remedial, Sinkler v. Missouri Pacific Railroad Co., 356 U.S. 326, 329-30, 78 S. Ct. 758, 762, 2 L. Ed. 2d 799, 802-03 (1958), and humanitarian in nature. Urie v. Thompson, 337 U.S. 163, 180-81, 69 S. Ct. 1018, 1030, 93 L. Ed. 1282, 1298 (1949). The general congressional intent in enacting FELA was "to provide liberal recovery for injured workers" and a flexible remedy to meet the changing conditions affecting the railroad industry's duty towards its workers. Kernan v. Am. Dredging Co., 355 U.S. 426, 432, 78 S. Ct. 394, 398, 2 L. Ed. 2d 382, 388 (1958). FELA seeks to adjust the cost of injury equitably between employee and employer, Sinkler, supra, 356 U.S. at 329-30, 78 S. Ct. at 762, 2 L. Ed. 2d at 803, to stimulate railroad companies to take measures for the prevention of injury to their employees, Jamison v. Encarnacion, 281 U.S. 635, 640, 50 S. Ct. 440, 442, 74 L. Ed. 1082, 1085 (1930), to protect the health of employees, Urie, supra, 337 U.S. at 191, 69 S. Ct. at 1035, 93 L. Ed. at 1304, and to promote the public interest. Minneapolis, St. Paul & Sault Ste. Marie Ry. Co. v. Rock, 279 U.S. 410, 413, 49 S. Ct. 363, 365, 73 L. Ed. 766, 769 (1929). FELA is to be construed liberally so that the primary purpose of the legislation may be more readily effectuated. Atchison, Topeka & Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 562, 107 S. Ct. 1410, 1414, 94 L. Ed. 2d 563, 571 (1987).

FELA supersedes the common law and state laws, constitutional and statutory, which relate to the liability of railroads for injury to employees engaged in interstate commerce. S. Buffalo Ry. Co. v. Ahern, 344 U.S. 367, 371-72, 73 S. Ct. 340, 342, 97 L. Ed. 395, 401 (1953). The rules and regulations established by FELA were intended to operate uniformly in all states, New York Central Railroad Co. v. Winfield, 244 U.S. 147, 150, 37 S. Ct. 546, 547, 61 L. Ed. 1045, 1048 (1917), and liability may not be altered, modified, extended, or abridged by state laws. Erie R.R. Co. v. Winfield, 244 U.S. 170, 174, 37 S. Ct. 556, 557-58, 61 L. Ed. 1057, 1065 (1917).

Under FELA, a railroad company is responsible in damages for the injury or death of an employee caused by its negligence. 45 U.S.C.A. 51. FELA does not impose additional obligations on the employer, and it "'does not make the employer the insurer of the safety of his employees while they are on duty.'" Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 543, 114 S. Ct. 2396, 2404, 129 L. Ed. 2d 427, 440 (1994) (quoting Ellis v. Union Pac. R.R. Co., 329 U.S. 649, 653, 67 S. Ct. 598, 600, 91 L. Ed. 572, 576 (1947)). Rather, under FELA, "[t]he basis of [the employer's] liability is his negligence, not the fact that injuries occur." Ibid.

Under FELA, "railroads have a duty to furnish employees with a 'reasonably safe place in which to work and such protection [against the hazard causing the injury] as would be expected of a person in the exercise of ordinary care under those circumstances.'" Aparicio v. Norfolk & W. Ry. Co., 84 F.3d 803, 810 (6th Cir. 1996) (quoting Urie, supra, 337 U.S. at 179 n.16, 69 S. Ct. at 1029 n. 16, 93 L. Ed. at 1297 n.16). The scope of the railroad's duty, however, is limited to hazards it can foresee. Gallose v. Long Island R.R. Co., 878 F.2d 80, 85 (2d Cir. 1989). FELA is not limited in application to accidental injuries; it extends to occupational diseases as well. See Atchison, supra, 480 U.S. at 559, 107 S. Ct. at 1412, 94 L. Ed. 2d at 569 (mental breakdown resulting from harassment and intimidation of foreman); Urie, supra, 337 U.S. at 165, 69 S. Ct. at 1022, 93 L. Ed. at 1290 (silicosis); Zarecki v. Nat'l R.R. Passenger Corp., 914 F. Supp. 1566, 1568-69 (N.D. Ill. 1996) (CTS).

To recover under FELA, plaintiff must prove the common-law elements of negligence including duty, breach, foreseeability, and causation. Fulk v. Ill. Cent. R.R. Co., 22 F.3d 120, 124 (7th Cir.), cert. denied, 513 U.S. 870, 115 S. Ct. 193, 130 L. Ed. 2d 125 (1994). Plaintiff's burden may be met either through direct or circumstantial evidence, but the evidence must be sufficient to provide an inference of employer negligence. Rogers v. Mo. Pac. R.R. Co., 352 U.S. 500, 508, 77 S. Ct. 443, 449, 1 L. Ed. 2d 493, 500 (1957). The evidence required to establish liability in a FELA action, however, is less than that required in an ordinary negligence action. Harbin v. Burlington N. R.R. Co., 921 F.2d 129, 131 (7th Cir. 1990). The common law standard of proximate cause is not applicable to FELA. Crane v. Cedar Rapids & Iowa City R.R. Co., 395 U.S. 164, 166, 89 S. Ct. 1706, 1708, 23 L. Ed. 2d 176, 180 (1969).

If "with reason, the conclusion may be drawn that negligence of the employer played any part at all in the injury or death[,]" the question must be determined by the jury under appropriate instructions. Rogers, supra, 352 U.S. at 506-07, 77 S. Ct. at 448-49, 1 L. Ed. 2d at 499-500. The Supreme Court has described the test for causation under FELA as "whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury. . . ." Ibid. Therefore, the case must be submitted to the jury "when there is even slight evidence of negligence," Harbin, supra, 921 F.2d at 131, whether or not the evidence would also reasonably permit the jury to attribute the injury to other causes as well. Wilson v. Chicago, Milwaukee, St. Paul & Pac. R.R. Co., 841 F.2d 1347, 1353 (7th Cir.), cert. dismissed, 487 U.S. 1244, 109 S. Ct. 1, 101 L. Ed. 2d 953 (1988).

NJT relies on several federal cases that have addressed expert testimony in FELA cases in which the plaintiffs assert that they developed CTS from job functions. It argues that the cases establish that expert testimony from an ergonomic expert is required to prove negligence on the part of the railroad employer. While we hesitate to hold that expert testimony is an absolute requirement in every case, these cases do establish that something more than a description of job activities is required, even in the context of the relaxed standard for proof of negligence by the employer in these cases.

In Aparicio, supra, the plaintiff was a track maintenance worker who complained that she had developed CTS due to the various activities required by her job. 84 F.3d at 805. As to the duty owed to railroad workers, the court explained that the employer has a duty to furnish its workers with a reasonably safe work environment. Id. at 810. The ordinary care that the employer must exercise is commensurate with the known risks. Ibid.

In Aparicio, the plaintiff had an ergonomics expert who testified to the risk factors accepted in the biomechanical and ergonomics community for CTS. Id. at 811. The expert also described the remedial measures that could be employed to eliminate or minimize the risk of injury. Ibid. Therefore, the court found that the plaintiff had submitted sufficient evidence of a breach of the duty to provide a reasonably safe place to work. Ibid. The court also noted that the plaintiff's ergonomics expert testified that the information about CTS was widely available in trade journals and that a reasonable employer would have known about the risk factors and remedial measures from these sources. Id. at 812.

In Zarecki, supra, the plaintiff was a reservation agent for a railroad. 914 F. Supp. at 1568. She alleged that she developed CTS due to activities required by her employment. Id. at 1569. The court granted the employer's motion for summary judgment finding the plaintiff provided no evidentiary support, other than her own opinion, for her contention that she should have been provided with an adjustable keyboard or a chair without armrests at all times. Id. at 1572. She also maintained, without any expert support, that the manner in which her employer required her to do her job was unsafe. Ibid. The plaintiff also submitted an affidavit from her treating physician who opined that she had developed CTS and that it was attributable to job tasks. Id. at 1572-73. The court noted, however, that a simple description of the plaintiff's job activities is not evidence that she is required to perform her duties in an unsafe manner. Id. at 1575.

In Magdaleno v. Burlington Northern Railroad Co., 5 F. Supp. 2d 899 (D. Colo. 1998), the plaintiff was a machinist who alleged that he suffered injuries to his wrists and hands due to conditions at his worksite. Id. at 901. The plaintiff's employer sought to exclude testimony from an ergonomics expert that plaintiff proposed to introduce at trial. Ibid. The court allowed the expert to offer an opinion about the activities of machinists, the risk factors to which they were exposed, and the employer's recognition of those risks. Id. at 903. The court ruled, however, that the expert could not testify that the plaintiff's workplace was unsafe because the expert had not conducted the type of study characterized by observations and measurements that is required to support such an opinion. Id. at 904-05.

The other federal FELA cases involving CTS are not directly relevant because the need for and the quality of expert testimony discussed in such cases is related solely to the issue of causation. See Hardyman v. Norfolk & W. Ry. Co., 243 F.3d 255 (6th Cir. 2001); Stasior v. Nat'l R.R. Passenger Corp., 19 F. Supp. 2d 835 (N.D. Ill. 1998). It should be noted, however, that the plaintiff in Hardyman used an ergonomics expert to identify the risks associated with his job tasks and remedial measures. Hardyman, supra, 243 F.3d at 263.

These cases highlight the deficiency in plaintiff's proposed proofs. We do not question Dr. Esformes' diagnosis of CTS nor his opinion that the treatment afforded to plaintiff was reasonable and necessary. On the other hand, his opinion that the repetitive motion involved in plaintiff's jobs at NJT caused her bilateral CTS is insufficient to establish that plaintiff's workplace was not safe. Unlike in Aparicio, no one other than plaintiff has described her job activities. Dr. Esformes did not observe plaintiff or other E cleaners, car cleaners or car inspectors performing their job tasks. Simply repeating an employee's description of job tasks and reciting that there are certain known risk factors for CTS, such as repetitive movements and awkward postures, is not sufficient. There must be some evidence that plaintiff's job tasks involved one, some, or all of the recognized risk factors and that there are recognized measures that can be employed to eliminate or minimize the identified risk of harm to the employee. Such evidence can be marshaled based on on-site observations of the workplace. That is absent in this case.

To be sure, evidence of prior claims by other employees may serve as notice to an employer that the workplace is unsafe. Furthermore, the failure to take measures to address known risk factors at the workplace may constitute a breach of the duty owed by an employer to its employees. Aparicio, supra, 84 F.3d at 812. Here, plaintiff's evidence in this regard is insufficient. For example, the record contains no information about Sosa other than his employment as a car inspector. We can discern from the record that he was employed at NJT earlier than plaintiff, but cannot determine whether their job duties were comparable. Similarly, the testimony of the NJT medical director and the safety director from the earlier trial addresses the state of their knowledge in 1996. However, plaintiff was employed in 1998 and first diagnosed in 1999. The inference that plaintiff would have the jury make, that the witnesses' knowledge and reaction were the same in 1999-2002 as between 1992 and 1996, is too speculative to serve as evidence of negligence, even under the relaxed standard of proof of a FELA action.

We are also not persuaded that our recent opinion in Stevens v. New Jersey Transit Rail Operations, 356 N.J. Super. 311 (App. Div. 2003) requires a different result. Stevens was a machine operator who had to resort to contortions to mount and dismount his machine. Id. at 321. We held that an expert was not required to prove that the machine was defective and that the employer was negligent for not providing an alternative, contortion-free manner for mounting the machine. Ibid. We noted that the defect was self-evident and that numerous complaints had been lodged by employees. Thus, the employer was on notice of the defect. Ibid. That is not the case here; whether a particular task involves a risk factor for CTS and whether there is a readily available remedy is not a matter of common knowledge.

Accordingly, we hold that plaintiff failed to provide sufficient evidence of negligence notwithstanding the minimal proof standard governing FELA cases. The orders dismissing the complaint and denying plaintiff's motion for reconsideration are affirmed.

Affirmed.

 

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A-4706-04T3

July 28, 2006