Norfolk Southern Ry. v. Estate of Wagers

• Decision Date: 25 August 2005
• Docket Number: No. 50A03-0403-CV-110.,50A03-0403-CV-110.
• Citation: 833 N.E.2d 93
• Parties: NORFOLK SOUTHERN RAILWAY COMPANY, Appellant-Defendant, v. The ESTATE of Robert G. WAGERS, Sr., Tracy Wagers, Personal Representative, Appellee-Plaintiff.
• Court: Indiana Supreme Court

833 N.E.2d 93

NORFOLK SOUTHERN RAILWAY COMPANY, Appellant-Defendant, v. The ESTATE of Robert G. WAGERS, Sr., Tracy Wagers, Personal Representative, Appellee-Plaintiff.

No. 50A03-0403-CV-110.

Court of Appeals of Indiana.

August 25, 2005.

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John C. Duffey, Barry L. Loftus, Stuart & Branigin LLP, Lafayette, IN, Attorneys for Appellant.

Thomas J. Joyce, III, Hannon & Joyce, Philadelphia, PA, John D. Ulmer, Yoder, Ainlay, Ulmer & Buckingham, Goshen, IN, Attorneys for Appellee.

OPINION

KIRSCH, Chief Judge.

Norfolk Southern Railway Company ("Norfolk") appeals the trial court's denial of its motion to strike and its motion for summary judgment in the suit brought against it by The Estate of Robert G. Wagers, Sr., Tracy Wagers, Personal Representative ("the Estate"), raising the following issues for review:

I. Whether the trial court should have stricken the testimony of the Estate's expert witness on causation, Dr. David K. Parkinson, because Parkinson's testimony does not meet the standard for admissibility of expert testimony in toxic exposure cases.

II. Whether the trial court erred in denying Norfolk's motion for summary judgment because the Estate has failed to present any evidence on the amount or "dose" of the decedent's exposure.

We affirm.

FACTS AND PROCEDURAL HISTORY¹

Robert Wagers, Sr. ("Wagers") worked for Norfolk as a track laborer and backhoe operator. In September 1999, he was diagnosed with small cell carcinoma of the lung. He died of lung cancer in May 2000. The Estate filed its complaint against Norfolk under the Federal Employer's Liability Act (FELA), contending that Wagers's lung cancer was caused by his workplace exposure to asbestos fibers, diesel fumes and exhaust, and herbicides. Wagers also had a significant history of smoking cigarettes. The Estate relied on the opinion of Parkinson, who acknowledged in an opinion letter that Wagers had both personal and work-related exposures that can cause lung cancer. He stated that "Mr. Wagers['] exposure to diesel fumes and asbestos played a significant role in the induction of his lung cancer. I cannot estimate what proportion of risk was to cigarette smoking and what proportion to his exposures in the workplace." Appellant's Appendix at 488. Subsequently, Parkinson was deposed and testified that he had no knowledge about the frequency with which Wagers may have encountered or used materials containing asbestos and that he assumed, based on his review of Wagers's co-workers' depositions, that Wagers would have worked with diesel equipment four to five hours per day. Parkinson agreed that some dosage level is required before a person would develop asbestosis, but that he did not know at what level Wagers was exposed. He testified that he could not state to any reasonable degree of medical certainty² that Wagers would not have developed lung cancer if he had not been exposed to any asbestos or diesel fumes. He further stated that he had no specific quantitative data about Wagers's exposure to asbestos and diesel fumes.³

In October 2003, Norfolk filed a Motion to Exclude and Motion for Summary Judgment. It argued that Parkinson's opinion on the cause of Wagers's lung cancer should be excluded under Indiana Rules of Evidence 702(b), 401, 402, and 403. In addition, it argued that because the Estate offered no admissible expert testimony as to medical causation, it was entitled to summary judgment. In January 2004, the trial court denied Norfolk's Motion to Exclude and Motion for Summary Judgment. In February 2004, the trial court certified its order for interlocutory appeal, and we accepted jurisdiction of the case.

DISCUSSION AND DECISION

The Estate has brought its claim against Norfolk under FELA. FELA imposes upon the railroad a non-delegable duty to use reasonable care in furnishing employees with a safe place to work and promulgates a statutory remedy for injured railroad workers. N. Indiana Commuter Transp. Dist. v. Marron, 812 N.E.2d 185, 188 (Ind.Ct.App.2004); Baltimore & Ohio Ry. Co. v. Taylor, 589 N.E.2d 267, 272 (Ind.Ct.App.1992), trans. denied. FELA is to be liberally construed, but it is not a workers' compensation statute. Bethlehem Steel Corp. v. Consol. Rail Corp., 740 N.E.2d 900, 907 (Ind.Ct.App.2000), trans. denied (citing Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 543, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994)). Moreover, FELA does not make the employer the insurer of the safety of its employees while they are on duty. Id.; Baltimore & Ohio Ry. Co., 589 N.E.2d at 271. Rather, the basis of an employer's liability is its negligence, not the fact that injuries occur. Bethlehem Steel Corp., 740 N.E.2d at 907; Baltimore & Ohio Ry. Co., 589 N.E.2d at 271.

A railroad employer breaches its duty to provide a safe workplace when it knows or should know of a potential hazard in the workplace, yet fails to exercise reasonable care to inform and protect its employees. Baltimore & Ohio Ry. Co., 589 N.E.2d at 272. The catalyst that ignites this duty is knowledge, either actual or constructive. Id. Thus an employer is not liable if it has no reasonable way of knowing that a potential hazard exists because FELA was never intended to hold an employer absolutely liable for workplace injuries. Id. However, if an employer learns or should learn of a potential hazard, it must take reasonable steps to investigate and to inform and protect its employees, or it will be liable when injury occurs. Id.

To recover under FELA, the plaintiff must still prove that the employer was negligent. Schultz v. Hodus, 535 N.E.2d 1235, 1237 (Ind.Ct.App.1989), trans. denied. In this respect, a plaintiff's prima facie case under FELA must include all the same elements as are found in a common law negligence action. Id. However, the standard of causation under FELA is substantially more liberal than that governing ordinary common-law negligence actions. See Gallick v. Baltimore & Ohio Ry. Co., 372 U.S. 108, 116, 83 S.Ct. 659, 9 L.Ed.2d 618 (1963). Thus, FELA imposes liability upon railroad employers if the railroad's negligence played any part, even the slightest, in the employee's death or injury. Id. The railroad/tortfeasor must compensate its victim for even the improbable or unexpectedly severe consequences of its wrongful act. Id. Further, a finding of contributory negligence, even in excess of 50%, does not bar recovery under FELA. Gouge v. Indiana Commuter Transp. Dist., 670 N.E.2d 363, 369 (Ind.Ct.App.1996).

In FELA negligence actions, the role of the jury is much greater than in common-law negligence actions; the right of the factfinder to pass upon the question of the employer's liability must be most liberally viewed. Baltimore & Ohio Ry. Co., 589 N.E.2d at 271. Moreover, under FELA, the factfinder's power to draw inferences is greater than in common-law actions. Id.

I. Motion to Strike

Norfolk argues that the trial court should have stricken Parkinson's testimony because his testimony does not meet the standard for admissibility of expert testimony in toxic exposure cases.

A trial court has broad discretion in ruling on a motion to strike. In re Remonstrance Appealing Ordinance Nos. 98-004, 98-005, 98-006, 98-007 and 98-008, of Town of Lizton, 769 N.E.2d 622, 631 (Ind.Ct.App.2002). Generally, we review a trial court's decision to admit or exclude evidence for an abuse of discretion. Meyer v. Marine Builders, Inc., 797 N.E.2d 760, 767 (Ind.Ct.App.2003); In re Remonstrance, 769 N.E.2d at 631. This standard also applies to decisions to admit or exclude expert testimony. Hannan v. Pest Control Servs., Inc., 734 N.E.2d 674, 679 (Ind.Ct.App.2000), trans. denied (2001); Wallace v. Meadow Acres Manufactured Housing, Inc., 730 N.E.2d 809 812 (Ind.Ct.App.2000), trans. denied (2001). We reverse a trial court's decision to admit or exclude evidence only if that decision is clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom. Hannan, 734 N.E.2d at 679; Wallace, 730 N.E.2d at 812; Ford Motor Co. v. Ammerman, 705 N.E.2d 539, 550 (Ind.Ct.App.1999), trans. denied, cert. denied, 529 U.S. 1021, 120 S.Ct. 1424, 146 L.Ed.2d 315 (2000). Further, the trial court's decision will not be reversed unless prejudicial error is clearly shown. In re Remonstrance, 769 N.E.2d at 631.

The trial court acknowledged Norfolk's "compelling" arguments that Parkinson's opinion should be excluded under Evid. R. 702(b). Appellant's Appendix at 673. However, it found controlling the Estate's argument that actions under FELA require less evidence of causation to establish liability than ordinary negligence actions and that a relaxed standard of causation in FELA actions also lowers the threshold of admissibility for expert testimony. Norfolk contends that the trial court erred in determining that this lower standard of admissibility applies in FELA cases. We need not decide whether a lower standard of admissibility applies, however, because Parkinson's testimony meets the requirements of Evid. R. 702(b).

A. Is Parkinson's testimony admissible under Evid. R. 702?

When FELA actions are adjudicated in state courts, they follow state procedural rules, even though the proceedings are governed by federal substantive law. Eversole v. Consol. Rail Corp., 551 N.E.2d 846, 850 (Ind.Ct.App.1990), trans. denied. Accordingly, state law governs the admissibility of evidence in such cases. Gouge, 670 N.E.2d at 369 n. 4.

Evid. R. 702 relates to the admissibility of expert testimony. It assigns to the trial court a gatekeeping function of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand. Lytle v. Ford Motor Co., 814 N.E.2d 301, 309 (Ind.Ct.App.2004); Hannan, 734 N.E.2d at 679; Hottinger v. Trugreen Corp., 665 N.E.2d 593, 596 (Ind.Ct.App....