M.M. v. Port Auth. Trans-Hudson Corp.

• Decision Date: 01 November 2018
• Docket Number: DOCKET NO. A-0561-17T4
• Parties: M.M., Plaintiff-Appellant, v. PORT AUTHORITY TRANS-HUDSON CORPORATION, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

M.M., Plaintiff-Appellant,
v.
PORT AUTHORITY TRANS-HUDSON CORPORATION, Defendant-Respondent.

DOCKET NO. A-0561-17T4

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Argued October 2, 2018
November 1, 2018

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

Before Judges Rothstadt, Gilson, and Natali.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-4751-15.

Patrick J. Finn argued the cause for appellant (Steven M. Lafferty, attorney; Patrick J. Finn, on the brief).

Lauren T. Grodentzik argued the cause for respondent (Port Authority Law Department, attorneys; Lauren T. Grodentzik, on the brief).

PER CURIAM

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Plaintiff M.M. is a former employee of defendant Port Authority Trans-Hudson Corporation (PATH or defendant).¹ She alleges that she suffers from post-traumatic stress disorder (PTSD) as a result of being exposed to diesel fumes while at work. On the day that she was exposed to the fumes, she fainted and was taken to the hospital. She appeals from an August 4, 2017 order granting summary judgment to PATH and dismissing with prejudice her claims under the Federal Employers' Liability Act (FELA), 45 U.S.C. §§ 51 to 60. She also appeals from a September 15, 2017 order denying her motion for reconsideration.

This appeal centers on the question of whether plaintiff's fainting is a sufficient physical impact to bring her claim for emotional distress within the ambit of the zone-of-danger test defined by federal courts interpreting FELA. We hold that plaintiff's allegations are sufficient to satisfy the physical impact prong of the zone-of-danger test. Accordingly, we reverse the order granting summary judgment to defendant and remand for further proceedings.

I

We take the facts as developed in the summary judgment record and view them in the light most favorable to plaintiff. Plaintiff was employed as a senior

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signal designer for PATH. As part of her responsibilities, plaintiff worked on circuit and wiring detail changes and often performed that work inside PATH train tunnels.

On December 9, 2012, plaintiff reported to work, and at approximately 2:45 p.m. she entered a train tunnel. When she entered the tunnel, she smelled diesel fumes and saw blue smoke. As she walked farther into the tunnel, she observed that the blue smoke and diesel odor was coming from two idling trucks. She telephoned the trainmaster to report the diesel fumes and to request that the vent fans in the tunnel be activated. Shortly thereafter, the fans were turned on, but they ran for only one hour from approximately 3 p.m. to 4 p.m. Plaintiff also donned two dust masks.

At approximately 6 p.m., plaintiff was working at a table in a relay room, located in the tunnel, and she began to feel dizzy. She put her head down on the table to rest, fainted, fell off the chair, and the right side of her head and body hit the floor. Plaintiff's supervisor notified the trainmaster, an emergency squad was dispatched, and plaintiff was removed from the tunnel and transported to a hospital.

At the hospital, plaintiff received a computed tomography (CT) scan of her head. A CT scan combines a series of x-ray images to create three-

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dimensional views of body organs and tissues. Gale Encyclopedia of Medicine, 1106-07 (4th ed. 2012). The CT scan revealed no injuries or medical issues. Plaintiff was discharged from the hospital later that night. Her final diagnosis was "syncope," that is, fainting.

The next day, plaintiff followed up with her psychiatrist, whom she had been seeing since approximately 2001. The psychiatrist had been treating plaintiff for symptoms related to bipolar disorder and had prescribed medication for plaintiff. On December 10, 2012, the psychiatrist increased the amount of medication prescribed to plaintiff. Thereafter, the psychiatrist diagnosed plaintiff with PTSD and opined that it was a consequence of the incident on December 9, 2012. In a letter dated January 6, 2017, the psychiatrist reported to plaintiff's counsel that plaintiff "continues to demonstrate symptoms of posttraumatic suffering." The psychiatrist then opined:

I am of the opinion, to a reasonable degree of medical certainty, that patient's psychological suffering is the direct result of severe stress from the 12/09/2012 accident, which caused impairment of patient's mental state. Patient continues to suffer from chronic symptoms of depression and anxiety and her prognosis for full recovery was poor at the time of last evaluation.

In addition to seeing a psychiatrist, plaintiff was also receiving therapy from a licensed psychologist. Between 2001 and December 9, 2012, plaintiff

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visited with her psychologist on a biweekly basis. For several months after the December 9, 2012 incident, plaintiff saw her psychologist twice a week. The psychologist reported that plaintiff "was functioning at a very high level" prior to December 2012. After the incident, the psychologist opined that plaintiff was suffering from severe PTSD. In a letter sent to plaintiff's counsel, dated March 30, 2017, the psychologist opined:

It is my impression that [plaintiff] will not be able to return to work and her inability to return to work is based on a lack of trust for anyone outside of her family, which was brought on by her significant difficulty at PATH and the inconsistency with which the administration treated her.

Following the incident on December 9, 2012, plaintiff did not return to work until October 28, 2013. At that time, she was assigned to "desk duty" as directed by a PATH psychologist. While on "desk duty," plaintiff was not to work in the "field," which included the train tracks and tunnels. After working several days, on November 4, 2013, plaintiff left her position with PATH and, thereafter, she did not return to work. Accordingly, plaintiff has not been employed since November 4, 2013.

On November 18, 2015, plaintiff filed a complaint against PATH seeking damages under FELA for the emotional distress injuries she suffered from the

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December 9, 2012 incident.² Specifically, plaintiff claims that she suffers from PTSD. While she acknowledges that she did not suffer any permanent physical injury on December 9, 2012, she asserts that she suffered a physical impact when she fainted and fell to the floor.

The parties engaged in and completed discovery. During discovery, plaintiff was deposed, and her counsel produced the letters from her psychiatrist and psychologist, which described plaintiff's PTSD. Just before the close of discovery, PATH moved for summary judgment. In opposition, plaintiff produced an expert report from a toxicologist who opined that the exposure to the diesel fumes caused plaintiff to faint on December 9, 2012.

The trial court heard oral arguments on the motion on August 4, 2017. That same day, the court entered an order granting summary judgment to PATH and dismissing plaintiff's FELA claim with prejudice. The court explained its ruling on the record. The trial court found that plaintiff's case was similar to the United States Supreme Court case in Metro-North Commuter Railroad Co. v. Buckley, 521 U.S. 424 (1997). In Buckley, the Supreme Court held that emotional distress damages could not be recovered under FELA by a worker

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who was disease-free, but had been exposed to asbestos. Id. at 432. The trial court here reasoned that "if asbestos is not within the zone of danger as per the Supreme Court of the United States, then diesel fumes/carbon monoxide is not within the zone of danger." The trial court then reasoned:

[T]he fumes and/or carbon monoxide present by - - presented by plaintiff was that of a simple physical contact with a substance that might cause a disease at a substantially later time and, therefore, the claim for negligent infliction of emotional distress may not be upheld under FELA, therefore, summary judgment is granted.

Plaintiff moved for reconsideration. On September 15, 2017, the court denied plaintiff's motion. Plaintiff now appeals.

II

On appeal, plaintiff makes four...