782 F.2d 13 (1st Cir. 1986), 85-1574, Finn v. Consolidated Rail Corp.

Docket Nº:85-1574, 85-1651.
Citation:782 F.2d 13
Party Name:Patricia FINN, Administratrix of the Estate of Edward Finn, Plaintiff, Appellant, v. CONSOLIDATED RAIL CORPORATION, Defendant, Appellee. Patricia FINN, Administratrix of the Estate of Edward Finn, Plaintiff, Appellee, v. CONSOLIDATED RAIL CORPORATION, Defendant, Appellant.
Case Date:January 28, 1986
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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782 F.2d 13 (1st Cir. 1986)

Patricia FINN, Administratrix of the Estate of Edward Finn,

Plaintiff, Appellant,



Patricia FINN, Administratrix of the Estate of Edward Finn,

Plaintiff, Appellee,



Nos. 85-1574, 85-1651.

United States Court of Appeals, First Circuit

January 28, 1986

Argued Dec. 4, 1985.

Elizabeth Mulvey with whom Philip J. Crowe, Jr. and Lubin & Meyer, P.C., Boston, Mass., were on brief for Patricia Finn.

Michael A. Fitzhugh with whom Veronica J. Bailey and Fitzhugh & Ward, Boston, Mass., were on brief for Consol. Rail Corp.

Before CAMPBELL, Chief Judge, BOWNES and BREYER, Circuit Judges.


Plaintiff Patricia Ann Finn, administratrix of the estate of Edward J. Finn, appeals from the entry of summary judgment against her in a Federal Employers Liability Act suit against the Consolidated Rail Corporation ("Conrail"). We affirm.


Prior to 1977, Conrail operated the commuter rail line from Needham, Massachusetts, to South Station in Boston, pursuant to a contract awarded by the Massachusetts Bay Transportation Authority ("MBTA"). In early 1977, the MBTA and Conrail failed to renegotiate this contract, and the MBTA contracted for the Needham run with the Boston & Maine Railroad ("B & M"). Conrail and the B & M thereafter entered into an agreement under which Conrail employees who had worked on the Needham run received an opportunity to "bid" for similar positions with the B & M.

Edward J. Finn, a Conrail passenger conductor on the Needham run, applied for a

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position as conductor with the B & M. As was their common practice, B & M arranged for an interview and physical examination. On June 14, 1977, Finn took and, it appears from the record, failed an eye test. On June 21, when the list of Conrail employees who were being "picked up" by the B & M was posted, Finn's name was not on it.

Over the next several days, Finn contacted a number of B & M officials in an effort to learn the reason for his rejection. He then enlisted the aid of his union representative, Claude MacGray. MacGray arranged a meeting for June 29, during which he and Finn met with Newton Wesley, B & M's Director of Personnel Administration, and Wesley's assistant, Dennis Coffey. The meeting between the four of them yielded no positive results.

Afterwards, however, MacGray and Coffey met privately to discuss Finn's situation. According to MacGray's deposition testimony, Coffey excused himself for a short period during this meeting. Coffey returned and said that he had made a telephone call, although MacGray did not recall whom Coffey purportedly called. In any event, MacGray testified that Coffey reported to him that a record-keeping error had occurred in which certain of Finn's employment records were mixed up with those of another Conrail employee with a similar name but a less enviable discipline record, and that the B & M had refused to hire Finn because it mistakenly believed that he had a tarnished discipline record. MacGray assumed that the mix-up was made by Conrail.

Coffey reportedly said that the error was now rectified and that Finn would be hired by the B & M if he passed another eye test. MacGray found Finn and told him that the matter had been resolved; that the rejection had resulted from the confusion of employment records, whereby a disciplinary violation attributable to another employee had accidentally been placed on Finn's record. As far as MacGray was concerned, Finn had been reinstated. 1

Finn remained extremely depressed about the entire matter, however. On June 30, he went to his family physician. The physician, fearing that Finn was in danger of suffering a nervous breakdown, referred him to a psychiatrist. On July 1, the psychiatrist diagnosed Finn as suffering from a reactive depression, and recommended bed rest and medication. Finn's condition continued to worsen, however, and the psychiatrist soon recommended that Finn take a leave of absence from work. Finn did not return to work until September 6, 1977. He continued to receive psychiatric treatment, complaining of depression and feelings of inadequacy. Finally, on September 17, Finn went to the basement workshop in his home and, using a power saw, severed his entire hand above the wrist. He then tied his dog's leash to a pipe and hanged himself.

On July 22, 1980, Patricia Finn, as administratrix of her husband's estate, filed the instant FELA action against Conrail for wrongful death and emotional injuries, claiming that the alleged "record-keeping error" drove her husband to a nervous breakdown and suicide. Conrail filed a third-party complaint against the B & M. After more than four years of discovery, both Conrail and the B & M moved for summary judgment. The district court, relying on Bullard v. Central Vermont Ry., 565 F.2d 193 (1st Cir.1977), determined that there was no physical injury associated with Finn's emotional distress and ultimate suicide. It therefore allowed the summary judgment motions of both defendants on June 12, 1985, 622 F.Supp. 41, and dismissed the complaint. Plaintiff has appealed from the entry of summary judgment in favor of defendant Conrail. 2

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Under Fed.R.Civ.P. 56, summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The party moving for summary judgment bears the burden of demonstrating that there is no disputed issue of fact which is both "genuine" and "material." Taylor v. Hercules, Inc., 780 F.2d 171, 174 (1st Cir.1986); Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir.1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 754 (1976). A "genuine" issue is one for which there is "sufficient evidence supporting the claimed factual dispute ... to require a jury or judge to resolve the parties' differing versions of the truth at trial." Hahn, 523 F.2d at 464, quoting First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 1592, 20 L.Ed.2d 569 (1968). A "material" issue is one that "affects the outcome of the litigation." Pignons S.A. de Mecanique v. Polaroid Corp., 657 F.2d 482, 486 (1st Cir.1981). In reviewing the district...

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