Amorgianos v. National Railroad Passenger Corp.

• Decision Date: 29 March 2001
• Docket Number: No. CIV A. CV-96-2745 (DGT).,CIV A. CV-96-2745 (DGT).
• Parties: Nikitas AMORGIANOS and Donna Amorgianos, Plaintiffs, v. NATIONAL RAILROAD PASSENGER CORPORATION d/b/a Amtrak, Defendant.
• Court: U.S. District Court — Eastern District of New York

137 F.Supp.2d 147

Nikitas AMORGIANOS and Donna Amorgianos, Plaintiffs, v. NATIONAL RAILROAD PASSENGER CORPORATION d/b/a Amtrak, Defendant.

No. CIV A. CV-96-2745 (DGT).

United States District Court, E.D. New York.

March 29, 2001.

As Corrected April 16, 2001.

COPYRIGHT MATERIAL OMITTED

Lawrence P. Biondi, New York City, for plaintiffs.

Angela D. Vitali, Parker Chapin Flattau & Klimpl, New York City, for defendant.

MEMORANDUM AND ORDER

TRAGER, District Judge.

Plaintiff Nikitas Amorgianos ("Mr. Amorgianos") brought this action against the National Railroad Passenger Corporation ("Amtrak") for personal injuries allegedly suffered as a result of workplace exposure to xylene. Plaintiff Donna Amorgianos ("Mrs. Amorgianos"), his wife, joined in the action, claiming loss of consortium and services. After a jury trial and a verdict rendered in favor of plaintiffs, Amtrak moved for a judgment as a matter of law or, in the alternative, for a new trial. The court denied defendant's motion for judgment as a matter of law, but granted defendant's motion for a new trial, finding that the jury's verdict was against the weight of the evidence. Amtrak now moves to preclude plaintiffs' experts from testifying at retrial on the ground that their testimony does not meet the standard for admissibility under Federal Rule of Evidence 702 set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc. and its progeny.

Background

Mr. Amorgianos is a forty-six year old man, who, until the time of the alleged accident giving rise to this action, had worked as a bridge painter since 1974. (Tr. 6/17/98, at 37-38.) Mr. Amorgianos, his wife, and his treating physician, Dr. Jacqueline Moline ("Dr. Moline"), all testified at trial that Mr. Amorgianos had been healthy prior to the incidents in question here. (Tr. 6/17/98, at 95, 129; Tr. 6/18/98, at 132.)

(1)

The Steinway Street Bridge Project

On July 22, 1995, Mr. Amorgianos began working with a crew of painters employed by Romano Enterprises ("Romano"), which, along with two other painting companies, had been contracted to repaint the Steinway Street Bridge in Astoria, Queens (the "Steinway Street Bridge Project" or the "Project"). (Def.'s Letter Brief of 12/6/99, Ex. K; Tr. 6/24/98, at 40.) The Steinway Street Bridge is a street overpass for a rail line operated by defendant Amtrak. The bridge consists of three piers and two 120-foot spans; one span passes over Steinway Street, and the other passes over Twenty-Third Street. (Def.'s Letter Brief of 12/6/99, Ex. L.)

The operation involved five steps: sandblasting off the old paint; applying a primer coat; applying a white, intermediate coat; applying a red, pigmented coat; and applying an anti-graffiti top coat to the portions of the bridge visible to pedestrians. (Tr. 6/17/98, at 50; Tr. 6/24/98, at 48-49.) Different steps in this process were performed on different sections of the bridge simultaneously. (Tr. 6/24/98, at 31-33.) For instance, while one group of workers was sandblasting part of one span, another group might have been applying primer to a section of the other span.

Because the old paint was lead-based, it was necessary to enclose whichever particular section was being sandblasted in order to protect pedestrians from exposure to lead paint dust blown off the bridge. (Tr. 6/24/98, at 50.) For this purpose, a box-shaped containment consisting of tarpaulins which were fastened together was erected around the affected section of the bridge and its supporting undercarriage during the sandblasting operation. (Tr. 6/17/98, at 42, 44.) At trial, Mr. Amorgianos testified that the containment was approximately 75 to 100 feet long, (id. at 41.); Ralph P. Romano, a co-owner of Romano Enterprises, testified that it was about 100 feet long, (Tr. 6/24/98, at 47). Mr. Romano further testified that the containment was about 15 to 18 feet high and 50 feet wide, (Tr. 6/24/28, at 47).

The containment was fitted with a vacuum hose on one end to carry lead paint dust out of the interior space and into a dust collector. (Tr. 6/17/98, at 42.) There were two louvers on the wall of the containment opposite from the dust collector intake. The louvers could be opened or closed as needed to introduce fresh air into the containment and to facilitate the flow of air through it. (Id. at 44; Tr. 6/24/98, at 50-51.)

The same type of containment was used during the spray-painting phases of the operation in order to keep paint overspray from falling on pedestrians and the surrounding area. (Tr. 6/24/98, at 50.)

Romano time records indicate that Mr. Amorgianos began working on the Steinway Street Bridge Project on July 22, 1995, and continued on the job until his alleged accident on August 28, 1995. (Def.'s Letter Brief of 12/6/99, Ex. K.)

(2)

Plaintiffs' Claims

The gravamen of plaintiffs' complaint is that Mr. Amorgianos was not provided with the appropriate personal protective gear, the containment was not properly ventilated, and, as a result, he was exposed to dangerous concentrations of paint fumes while spray-painting inside the containment. Exposure to organic solvent vapors in the paint fumes, particularly xylene vapor, he contends, caused him to develop permanently disabling (1) central nervous system ("CNS") dysfunctions, such as memory loss, cognitive deficits, and changes in affect, and (2) peripheral polyneuropathy ("PN"), a neurological condition involving the loss of sensation and motor control in the extremities.¹

Specifically, plaintiffs contend that proper industrial hygienic practice is to provide a spray-painter who is working inside an enclosed space with a respirator containing a filter specially designed for organic solvent vapors. According to plaintiffs, these filters must be changed on a daily basis, or they become ineffective. Mr. Amorgianos alleges that Romano failed to provide him with an adequate supply of fresh organic vapor filters. In addition, plaintiffs contend that proper industrial hygienic practice would have been to turn the dust collector on and open the fresh air vents during spray-painting; Mr. Amorgianos alleges that this was not done on the Steinway Street Bridge Project. Plaintiffs also assert that a fan should have been placed inside the containment to increase air flow further. Plaintiffs contend that the failure to provide adequate air flow through the containment allowed dangerous levels of organic solvent vapors to accumulate within the containment, exacerbating the danger posed to Mr. Amorgianos by defendant's alleged failure to provide him with the appropriate filters for his respirator.

On the afternoon of August 28, 1995, Mr. Amorgianos became acutely ill allegedly due to his exposure to the paint fumes, left work, and has allegedly suffered disabling CNS deficits and PN since that date, with no improvement over time.

As detailed below, the various expert and non-expert factual issues raised by plaintiffs' claims were contested at trial.

(3)

The Evidence at Trial

Plaintiffs' action came for jury trial before the Honorable Edward R. Korman of this Court (the "trial judge") in June, 1998.

A. Personal Protective Gear Provided to Mr. Amorgianos

1. Plaintiffs' Evidence

When Mr. Amorgianos started on the Project, he was provided with a half-face respirator mask. (Tr. 6/17/98, at 58-60.) The respirator could be fitted with a lead dust filter and/or with a filter for organic vapors. (Id. at 59-60, 62.) The lead dust filter was to be used during sandblasting, while organic vapor filters were to be used during spray-painting. (Id.) Mr. Amorgianos testified that at certain times during his work on the Project, he sandblasted, and at other times, he spray-painted; both activities were performed inside the containment. (Id. at 59-61.)

While sandblasting, Mr. Amorgianos was also provided with a cloth hood, which covered his head and uniform. (Id. at 45.) The hood was connected to a hose that brought in fresh air from outside the containment. (Id.) Mr. Amorgianos did not, however, wear the respirator underneath the air-supplied hood during sandblasting. (Id. at 45.) Mr. Amorgianos complained that the dust collector used during sandblasting did not have enough capacity to clear adequately the air within the containment. (Id. at 43-45.)

With regard to spray-painting, Mr. Amorgianos stated that there were occasions during his first three or four weeks on the Project (i.e., from July 22, 1995 to August 11 or August 18, 1995) that he performed spray-painting work. (Id. at 59.) Mr. Amorgianos was provided with a single organic vapor filter for his respirator at that time, but was not given a replacement, and was forced to use that same organic vapor filter for "a couple of weeks." (Id. at 60.) Later in the operation, he returned to spray-painting, but he was told no organic vapor filters were available, so he used only a lead dust filter for at least the last two weeks he was on the job (i.e., August 15, 1995 to August 28, 1995). (Id. at 61-62.) Mr. Amorgianos further testified that the dust collector was not turned on during spray-painting, the fresh air louvers were kept closed, and there was no fan inside the containment. (Id. at 50-53, 58.)

During Mr. Amorgianos's direct examination, plaintiffs introduced what they alleged to be the actual respirator Mr. Amorgianos was using when he became ill on August 28, 1995. (Id. at 78, 82.)² Mr. Amorgianos testified that he had been using that very respirator for the preceding two or three weeks, including during spray-painting. (Id. at 83.) The respirator, as introduced, contained only a lead dust filter. (Id. at 78, 83.) Mr. Amorgianos stated that he had used that particular filter for the last three days he worked. (Id. at 76.) As later noted by the trial judge, the respirator and filter were in clean, "rather pristine" condition. (Tr. 9/29/98, at 38; see also id. at 36-37 (noting that there was "not a speck of paint on the mask"), 42-45.)

Plaintiffs' expert...