Zarow-Smith v. New Jersey Transit Rail Operations

• Decision Date: 24 January 1997
• Docket Number: Civ. No. 94-4946 (JAP).
• Citation: 953 F.Supp. 581
• Parties: Alexis ZAROW-SMITH, Widow of Craig D. Smith and Executrix of the Estate of Craig D. Smith, Plaintiff, v. NEW JERSEY TRANSIT RAIL OPERATIONS, INC., Defendant.
• Court: U.S. District Court — District of New Jersey

953 F.Supp. 581

Alexis ZAROW-SMITH, Widow of Craig D. Smith and Executrix of the Estate of Craig D. Smith, Plaintiff, v. NEW JERSEY TRANSIT RAIL OPERATIONS, INC., Defendant.

Civ. No. 94-4946 (JAP).

United States District Court, D. New Jersey.

January 24, 1997.

COPYRIGHT MATERIAL OMITTED

Louis A. Ruprecht, Millburn, NJ, for defendant.

Lisa Washington, Fox, Rothschild, O'Brien & Frankel, Philadelphia, PA, for plaintiff.

OPINION

PISANO, United States Magistrate Judge:

A civil jury trial was conducted before the undersigned in the above-captioned matter, commencing on October 29, 1996 and ending on November 8, 1996. At the conclusion of the presentation of the evidence and argument, the jury returned a verdict for plaintiff in the amount of $44,934.00. On December 3, 1996, judgment was entered in that amount.¹

This Court is now asked to decide plaintiff's post-trial motion to alter and amend the judgment, pursuant to Federal Rule of Civil Procedure 59(e), and her motion for a new trial on damages or, in the alternative, for a new trial generally, pursuant to Federal Rule of Civil Procedure 59(a). Defendant filed opposition to plaintiff's motions, and the Court decides the matter without oral argument, pursuant to Federal Rule of Civil Procedure 78.

BACKGROUND

This is a wrongful death case brought under the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq., ("F.E.L.A.") against New Jersey Transit Rail Operations ("N.J.T."). The decedent, Craig Smith, who died of lung cancer in August, 1995, was a bridge and building mechanic with N.J.T. A principal work place of the decedent was the Register Building in Red Bank, New Jersey, where he worked from 1986-1990. Evidence was offered at trial that asbestos was present in the Register Building during the years the decedent worked there.

The plaintiff, Alexis Zarow-Smith, the widow of Craig Smith, offered proof at trial that N.J.T. failed to maintain a reasonably safe workplace by permitting Craig Smith to be exposed to asbestos. Plaintiff's witnesses testified that the roof of the Register Building was made of asbestos panels which released asbestos dust that fell on Craig Smith and other workers. Plaintiff's witnesses further testified that the railroad failed to inspect the building for asbestos, repair or abate the unsafe asbestos conditions, adequately warn the decedent, or provide protective devices and clothing. Proof was also offered that Craig Smith was required by the railroad to work in other locations containing asbestos and to do other work which exposed him to asbestos.

N.J.T. then offered proof that Craig Smith was negligent by smoking cigarettes and that his smoking was a proximate cause of his illness and death. N.J.T.'s position at trial was that the railroad provided Craig Smith with a reasonably safe place to work, the plaintiff failed to prove that Craig Smith was exposed to harmful levels of asbestos in the workplace, and she failed to prove that Craig Smith's lung cancer was caused by his asbestos exposure.

Craig Smith smoked between a half pack and a pack of cigarettes a day from the mid 1960's until 1993. He became ill in the late spring of 1994 and died in August of 1995 of inoperable lung cancer. He was 48 years old. Smith was survived by the plaintiff, their two-year-old daughter, and two adult children from previous marriages.

The jury returned a verdict for the plaintiff, finding that N.J.T. was negligent and that its negligence was a proximate cause of the illness and death of Craig Smith, but that Craig Smith, by smoking cigarettes, was also guilty of contributory negligence. The jury calculated plaintiff's total damages to be $898,665.00², but then found that 95 percent of the cause of Craig Smith's illness and death was attributable to his cigarette smoking, reducing the total damages award to $44,934.00.

FEDERAL EMPLOYER'S LIABILITY ACT

The jury found N.J.T. to be liable under the F.E.L.A. The pertinent provision of the law reads as follows:

Every common carrier by railroad while engaging in commerce between and of the several States or Territories ... shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in the case of the death of such employee, to his personal representative for the benefit of the surviving widow and children of such employee ... for such injury or death resulting in whole or in part from the negligence of any of the officers, agents or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its appliances, machinery, roadbed, works, or other equipment.

45 U.S.C. § 51. Injury under the F.E.L.A. need not be the result of any specific occurrence but can consist of actions over a period of time including industrial or occupational disease or illness caused by exposure to a toxic substance. The claim is established if the plaintiff can show that negligence of the defendant played any part, however small, in the decedent's illness. Mitchell v. Missouri-Kansas-Texas R. Co., 786 S.W.2d 659, 661 (Tex.), cert. denied, 498 U.S. 896, 111 S.Ct. 247, 112 L.Ed.2d 205 (1990). Isgett v. Seaboard Coast Line R. Co., 332 F.Supp. 1127 (D.C.S.C.1971).

MOTION FOR A NEW TRIAL

Standard Under Rule 59(a)

Motions for new trials are governed by Federal Rule of Civil Procedure 59(a), which provides in pertinent part:

A new trial may be granted to all or any of the parties and on all or part of the issues in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States.

F.R.C.P. 59(a). The most common reasons for granting a new trial are as follows: (1) when the jury's verdict is against the clear weight of the evidence, and a new trial must be granted to prevent a miscarriage of justice, Roebuck v. Drexel University, 852 F.2d 715, 717 (3d Cir.1988); (2) when newly discovered evidence would be likely to alter the outcome of the trial, Joseph v. Terminix International Co., 17 F.3d 1282, 1285 (7th Cir.1994); (3) when improper conduct by an attorney or the court unfairly influenced the verdict, Wharf v. Burlington Northern, 60 F.3d 631, 638 (9th Cir.1995); or (4) when the jury verdict was facially inconsistent, Mosley v. Wilson, 102 F.3d 85, 90 (3d Cir.1996). The purpose of this policy is to ensure that the trial court does not supplant the jury's verdict with its own. Fineman v. Armstrong World Indus., Inc., 980 F.2d 171, 211 (3d Cir.1992), cert. denied, 507 U.S. 921, 113 S.Ct. 1285, 122 L.Ed.2d 677 (1993) (citing Lind v. Schenley Indus., Inc., 278 F.2d 79, 90 (3d Cir.) (in banc), cert. denied, 364 U.S. 835, 81 S.Ct. 58, 5 L.Ed.2d 60 (1960)). Whether or not a new trial is granted is left to the sound discretion of the trial court, whose decision is overturned only if the court abused that discretion. Wagner by Wagner v. Fair Acres Geriatric Center, 49 F.3d 1002, 1017 (3d Cir.1995).

Analysis

Plaintiff seeks a new trial on the following grounds: (1) the Court erred in instructing the jury to apportion damages; (2) the Court erred in instructing the jury that N.J.T.'s failure to perform a lateral chest x-ray during a 1993 company physical, and its failure to read the 1993 posterior-anterior ("p-a") chest x-ray correctly, were not negligence as a matter of law; and (3) the Court erred in failing to charge the jury that Craig Smith's assumption of the risk of smoking cigarettes was not available as a defense under the F.E.L.A.

• Apportionment of damages

Citing Prosser and Keeton's Law of Torts and the Restatement (Second) of Torts, the plaintiff first claims that the decedent's injury is indivisible and incapable of apportionment. This argument, however, ignores language in the F.E.L.A. that specifically allows apportionment. The statute provides that "the fact that an employee may have been guilty of contributory negligence shall not bar recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee." 45 U.S.C. § 53.

The threshold issue thus becomes whether the decedent was "guilty of contributory negligence" because of his cigarette smoking so that it was proper for the jury to apportion damages under 45 U.S.C. § 53. Contributory negligence under the statute is "the doing of some act or an omission by the employee amounting to a want of ordinary care for his own safety, which is the proximate cause of his injury though concurrent with some negligent act of the employer." Chesapeake & Ohio Ry. Co. v. Richardson, 116 F.2d 860, 863 (6th Cir.), cert. denied 313 U.S. 574, 61 S.Ct. 961, 85 L.Ed. 1531 (1941). No reported F.E.L.A. case addresses whether an injured employee's smoking can be contributory negligence that permits apportionment of damages under the statute.

In a products liability context, however, cigarette smoking has been held to be negligent behavior. Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 562 A.2d 1100, 1118 (1989) ("We conclude that there is no reason to prohibit the use of one's smoking history in determining comparative responsibility in this case involving asbestosis."). Ingram v. Acands, Inc., 977 F.2d 1332, 1342 (9th Cir.1992) (finding that the evidence presented of the "synergistic effect of cigarette smoke and asbestos in increasing [plaintiff's] cancer risk" was sufficient to permit submitting the issue of comparative negligence to the jury). In re Asbestos Litigation Pusey Trial Group, 669 A.2d 108, 111-112 (Del.1995) (holding that it was error not to permit a jury instruction on the decedent's contributory negligence due to his cigarette smoking). Hao v. Owens-Illinois, Inc., 69 Haw. 231, 738 P.2d 416, 418 (1987). Jones v. Owens-Corning Fiberglas Corp., 69 F.3d 712, 720 n. 9 (4th Cir.1995) (concluding that the defense of contributory negligence is "clearly" available when the defendant can...