MARY TANFIELD v. LEIGH RAILROAD CONSOLIDATED RAIL SHARED ASSETS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

MARY TANFIELD, Administratrix

ad Prosequendum of the Estate

of HAROLD TANFIELD, deceased,

Plaintiff-Appellant,

v.

LEIGH RAILROAD, CONSOLIDATED

RAIL SHARED ASSETS, CSX

TRANSPORTATION AND SYSTEMS,

NORFOLK SOUTHERN RAILWAY COMPANY,

Defendants,

and

CONSOLIDATED RAIL CORPORATION

(a Pennsylvania Corporation

licensed to do business in the

State of New Jersey),

Defendant-Respondent.

____________________________________

August 11, 2014

Submitted August 4, 2014 - Decided

Before Judges Sapp-Peterson and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-2295-11.

Richard S. Mazawey, attorney for appellant.

Ruprecht Hart Weeks and Ricciardulli, LLP, and Patrick M. Horvat (Burns White LLC) of the Pennsylvania bar, admitted pro hac vice, and Ira L. Podheiser (Burns White LLC) of the Pennsylvania bar, admitted pro hac vice, attorneys for respondent (Francis D. Engracia, Louis A. Ruprecht, Mr. Horvat, and Mr. Podheiser, on the brief).

PER CURIAM

This appeal arises out of the trial court's dismissal of a wrongful death action brought by the widow and administratrix of a long-time railroad worker. The case was brought under the Federal Employers' Liability Act ("FELA"), 45 U.S.C.A. 51 to 60, based upon a claim of occupational exposure. Plaintiff's theory of the case is that her late husband's former employer allowed him to be continually exposed to diesel fumes and other toxic substances without providing him with masks or other adequate protective equipment. She further alleges that the occupational exposure was a causal factor in her husband contracting lung cancer, leading to his death.

The trial court granted the defendant employer summary judgment. The court concluded that plaintiff had not presented sufficient proof of defendant's duty of care to the decedent as its employee, or that it breached that duty. We reverse that determination. Viewing the lay and expert proof in the record in a light most favorable to plaintiff, there are sufficient genuine disputed issues of duty and breach raised in this distinctive context of a FELA occupational exposure case. The matter is accordingly remanded for a trial.

The record indicates that the decedent, Harold Tanfield, worked for defendant Consolidated Rail Corporation ("Conrail")1 and its predecessor entities for approximately forty years from 1952 to 1992, although the parties quibble over the precise dates. During his long tenure with the railroad, the decedent was assigned to work at various locations, in which he was exposed to a variety of substances. One of those substances was diesel fumes, which emanated from running engines that were in proximity to decedent. Defendant allegedly did not furnish plaintiff with masks, respirators, filters, or other protection from his exposure to the fumes. Plaintiff claims that these ongoing conditions forced her husband to work for decades in an unhealthy and unsafe environment, leading to his contracting lung cancer that ultimately resulted in his death. She therefore seeks money damages from Conrail under FELA, a statute designed to protect railroad workers from workplace hazards and to compensate them and their families for injuries caused by the employer's negligence. 45 U.S.C.A. 51.

Since apparently no testimony from decedent was taken and preserved before his death, plaintiff has endeavored to establish the relevant facts and circumstances through other witnesses. In particular, she relies principally upon the lay testimony of a former Conrail co-worker, Thomas Moloughney,2 and the expert opinions of Steven R. Tahan, M.D., a pathologist on the faculty of Harvard Medical School.

Moloughney testified that he worked initially for the railroad as a fireman and then began working as an engineer in or about 1973. He worked as an engineer until 1999, when he was diagnosed with prostate cancer. Moloughney knew the decedent, who was at one time a "brakeman" or "trainman," and who eventually became a "conductor." Moloughney expressed familiarity with the decedent's job functions, as Moloughney had at times worked with him side-by-side on a daily basis.

Moloughney described at length the hazardous materials, chemicals, and carcinogens, including diesel fumes, that he and the decedent were exposed to in the workplace. According to Moloughney, the "first-generation locomotives" the employer used during the time that he worked with the decedent were "extremely dirty."3 He characterized the diesel fumes emitted by the engines as "brutal," noting that the employer would customarily leave the engines running in idle to avoid having to be restarted by a battery. He recalled that the exhaust would not only come out of the engine's smokestacks, but would also leak through the manifolds and enter and reenter the locomotive cabin. Moloughney stated that "[a] lot of times," he would note on an inspection report the presence of such fumes in the cabin. Plaintiff submits that Moloughney will further corroborate that the train workers were not supplied with masks or other equipment that might have protected them from the fumes and other airborne substances.

Plaintiff also relies upon the anticipated expert testimony of Dr. Tahan. Dr. Tahan has been on the Harvard Medical School faculty since 1990, and is currently an Associate Professor of Pathology. Among other appointments, he is on the staff at the Beth Israel Deaconess Medical Center in Boston, and is a fellow of the College of American Pathologists. The doctor has chaired or served on a host of professional committees, and his curriculum vitae indicates that he has published over fifty peer-reviewed scholarly articles.

At plaintiff's request, Dr. Tahan reviewed various materials in this case, including interrogatory responses, the decedent's railroad employee medical file, military records, a workplace exposure schedule, other medical records, hospice records, a prior pulmonary claim, and several pathology and cytology slides.4 The substance of Dr. Tahan's expert report, dated November 17, 2012, consists of the following three paragraphs:

Mr. Tanfield was a railroad worker for 35 years, where he was exposed to a large number of carcinogenic chemicals and fumes, including asbestos, antimony, arsenic, benzene beryllium, cadmium, carbon disulfide, cyanide, DDT, diesel fumes, diesel fuel, dioxins, ethylbenzene, lead, methylene chloride, mercury, naphthalene, petroleum hydrocarbon, polychlorinated biphenyls, polynuclear aromatic hydrocarbons, toluene, vinyl acetate, and other volatile organics.

I have reviewed the cytology and biopsy slides from the right lung and confirm that he had a poorly differentiated malignant non-small cell carcinoma with both adenocarcinomatous and squamous features. I have reached the following conclusions to a reasonable degree of medical certainty based on review of the above materials, my education, training, and experience, and review of published studies:

Mr. Tanfield's more than 35 year substantial occupational exposure to an extensive array of carcinogens and diesel fumes without provision of protective equipment such as masks, respirators, and other filters created a long-term hazard that substantially multiplied his risk for developing lung cancer over the baseline he had as a former smoker. It is more likely than not that his occupational exposure to diesel fumes and other carcinogenic toxins present in his workplace was a significant causative factor for his development of lung cancer and death from his cancer.

After discovery was completed, Conrail moved for summary judgment. It argued that plaintiff could not establish at trial the duties that it owed under FELA to the decedent or any breach of those duties. Plaintiff opposed the motion, contending that the discovery exchanged in the case, when viewed in a light most favorable to her, raised genuine issues of material fact. During oral argument on the motion, counsel referred to both Dr. Tahan's expert report and Moloughney's deposition testimony, although, for reasons that are unclear, the deposition transcript had not been furnished to the motion judge with the parties' submissions.

In granting summary judgment to Conrail, the motion judge perceived that, although plaintiff had presented triable issues of causation, she had not presented triable issues concerning duty and breach. In her post-appeal supplemental letter opinion, the judge found Dr. Tahan's report inadequate to support a viable claim of occupational exposure because he is a pathologist and not knowledgeable concerning railroad safety or the requirements of a railroad to provide its employees with protective equipment. Deeming them inadmissible net opinions, the judge rejected Dr. Tahan's criticisms of defendant's alleged failure to provide its workers with masks, respirators, or other filters. She also found that Dr. Tahan lacked the proper qualifications to opine that the decedent had been "unreasonably subjected to and made to carry out his duties in an unsafe and unhealthy working environment." The judge further noted that this case involved a subject matter too esoteric for a jury to evaluate without the aid of appropriate expert opinion.

We review the judge's dismissal of the complaint through the customary prism that governs summary judgment practice. The court must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); see also R. 4:46-2(c). The court cannot resolve contested factual issues but instead must determine whether there are any genuine factual disputes. Agurto v. Guhr, 381 N.J. Super. 519, 525 (App. Div. 2005). If there are materially disputed facts, the motion for summary judgment should be denied. Parks v. Rogers, 176 N.J. 491, 502 (2003); Brill, supra, 142 N.J. at 540. To grant the motion, the court must find that the evidence in the record "'is so one-sided that one party must prevail as a matter of law.'" Brill, supra, 142 N.J. at 540 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)).

Our review of an order granting summary judgment must observe the same standards, including our obligation to view the record in a light most favorable to the non-moving party here, plaintiff. See Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 374 (2010). We accord no special deference to a trial judge's assessment of the documentary record, as the decision to grant or withhold summary judgment does not hinge upon a judge's determinations of the credibility of testimony rendered in court, but instead amounts to a ruling on a question of law. See Manalapan Realty, L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995) (noting that no "special deference" applies to a trial court's legal determinations).

We consider the sufficiency of plaintiff's proofs in the distinctive context of an occupational exposure case brought under FELA. A railroad has a "nondelegable duty to provide its employees with a safe place to work." Shenker v. Baltimore & Ohio R.R., 374 U.S. 1, 7, 83 S. Ct. 1667, 1671-72, 10 L. Ed. 2d 709, 714 (1963). Under FELA, negligence may be shown if the employer "knew or by the exercise of due care should have known[] that prevalent standards of conduct were inadequate to protect [the railroad worker] and similarly situated employees." Urie v. Thompson, 337 U.S. 163, 178, 69 S. Ct. 1018, 1028, 93 L. Ed. 2d 1282, 1297 (1949) (internal quotation marks omitted). Plaintiff in that regard must establish the customary elements of a negligence action, i.e., duty, breach, causation, and damages. Stevens v. N.J. Transit Rail Operations, 356 N.J. Super. 311, 319 (App. Div. 2003).

The "quantum of evidence required to establish liability in [a] FELA case is much less than in an ordinary negligence case." Kapsis v. Port Auth. of N.Y. & N.J., 313 N.J. Super. 395, 403 (App. Div.) (alteration in original) (quoting Harbin v. Burlington N. R.R., 921 F.2d 129, 131 (7th Cir. 1990)), certif. denied, 157 N.J. 544 (1998). A finding of the employer's liability "should be sustained if 'the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought.'" Id. at 402 (quoting Rogers v. Missouri Pac. R.R., 352 U.S. 500, 506, 77 S. Ct. 443, 448, 1 L. Ed. 2d 493, 499 (1957) (footnote omitted)).

Applying these standards, we conclude from our de novo review of the record, viewed as it must be in a light most favorable to plaintiff, that the motion judge's decision granting summary judgment to defendant should be overturned. The expert opinions of Dr. Tahan, an extremely well-credentialed pathologist with substantial expertise in human exposure to carcinogens, in combination with the deposition testimony of Moloughney, suffice to create triable issues of fact for a jury on the elements of negligence within this special context of a FELA claim.

We disagree with the motion judge that Dr. Tahan's report should be disregarded because it contains inadmissible net opinions. The doctor's opinions are backed by professional literature and by his own considerable years of research and experience. The report, although it is not lengthy, contains the "why[s] and wherefore[s]" underlying Dr. Tahan's conclusions. Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 540 (App. Div.), certif. denied, 145 N.J. 374 (1996) (noting the need for an expert to provide such whys and wherefores that support his or her findings); see also Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 372-73 (2011).

As the motion judge correctly observed, Dr. Tahan is a pathologist, not an industrial hygienist or engineer. However, we do not regard the absence of an expert report from an industrial hygienist or an engineer to be critical in this occupational exposure case. Based on the railroad workers' long-term and seemingly continuous exposure to diesel fumes, as recounted in Moloughney's deposition, there is a reasonable basis in the record for a jury to conclude that defendant failed to protect the decedent from the ingestion of such hazardous substances. The question of whether it was reasonable or unreasonable for the employer not to have furnished masks or other protective gear to the decedent during his employment is not so esoteric a question to necessitate opinions from an industrial expert witness. In fact, the generic question of a railroad employer's duty to provide a safe workplace to its workers is largely answered by the terms of the FELA statute itself. Kapsis, supra, 313 N.J. Super. at 402-03.

To be sure, plaintiff's case could be strengthened by input from an additional expert, but we are unpersuaded on the facts presented that such a second expert is absolutely vital here. The questions of duty and breach in this setting can be sensibly evaluated without demanding that plaintiff retain a further expert. It will still be plaintiff's obligation to carry the burden at trial of proving by a preponderance of the evidence that defendant's practices as a railroad employer were indeed unreasonable. Plaintiff will have to bear that risk.

We reject defendant's argument that we must disregard Moloughney's deposition testimony because a transcript of it was not supplied to the motion judge. Both counsel were well aware of the contents of the deposition, and it was even discussed at the motion argument. There was no ambush or prejudice to the defense here.

Although plaintiff certainly should have supplied the deposition transcript to the court with her motion submissions, the de novo nature of our appellate function makes it appropriate to consider the transcript's contents. That is particularly so, since defendant did not move to strike any portions of plaintiff's appendix pursuant to Rule 2:5-4(a). We discern no efficient reason to remand the matter to the trial court and require the court to reconsider its ruling in light of Moloughney's testimony, although we do appreciate that the judge was deprived of this key portion of the record when she decided the motion.

We also reject defendant's argument that Dr. Tahan's opinions must be discarded because the doctor was not supplied with the Moloughney transcript before issuing his report. As we have noted, the deposition was not conducted until after the report was generated. New Jersey Rules of Evidence 703 expressly permits a testifying expert to present opinions based upon facts or data "perceived by or made known to the expert at or before the hearing." N.J.R.E. 703 (emphasis added). However, in the interests of fair disclosure to the defense as it undertakes trial preparation, we suggest that on remand, the trial court consider, in its discretion, reopening discovery to allow for the exchange of supplemental expert reports explicitly addressing the linkage of Moloughney's anticipated trial testimony to their expert opinions. The trial court shall also retain, on a question-by-question basis, the authority to limit the testimony of the experts so that it comports with the usual boundaries of the Rules of Evidence.5

Summary judgment is reversed, and the case is remanded for trial.

1 The other named defendants do not appear to be active in the litigation, and they have not participated in this appeal.

2 For the reasons we discuss, infra, we reject defendant's argument that we must disregard Moloughney's 111-page deposition transcript, which is reproduced in full in plaintiff's appendix.

3 Moloughney further noted that the old motors have since been replaced by more modern equipment that emit less fumes.

4 Dr. Tahan did not yet in November 2012 have the benefit of Moloughney's deposition, which was taken on December 26, 2012 and thereafter transcribed.

5 We find inapposite and non-binding the FELA cases cited in defendant's brief. Doty v. Illinois Cent. R.R., 162 F.3d 460 (7th Cir. 1998); Magdeleno v. Burlington N. R.R. Co., 5 F. Supp. 2d 899 (D. Colo. 1998). In Magdeleno, the court specifically noted that at least one of the challenged expert's opinions were non-scientific observations of the movements of the employees, which could be provided by a layperson or any other person who had observed the employer's facility. Magdeleno, supra, 5 F. Supp. 2d at 903. In this case, Moloughney provides such non-expert observations. In Doty, the court criticized the expert's failure to link the claimant's carpal tunnel syndrome to the claimant's workplace. Doty, supra, 162 F.3d at 462. Here, such a link is furnished, or at least substantially furnished, by Moloughney's descriptions, as well as by Dr. Tahan's apparently broad knowledge of carcinogenic exposures.