NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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
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")
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,
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."
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.
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."
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.
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."
The "quantum of evidence required to establish liability in [a] FELA case is much less than in an ordinary negligence case."
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.
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.
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
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.
Summary judgment is reversed, and the case is remanded for trial.