Failure to Establish Admissible Exposure Evidence Leads to Summary Judgment for Railroad Defendant

TENNESSEE — The plaintiff filed suit against Norfolk Southern Railroad Company (Norfolk) under the Federal Employer’s Liability Act (FELA) alleging he developed lung cancer as a result of occupational exposure to asbestos. Specifically, the plaintiff worked as a brakeman, trainman, and locomotive engineer from 1965-1999. The plaintiff passed from lung cancer in 2003 and his wife was substituted as the plaintiff. Of interest, the plaintiff’s decedent smoked beginning at age 13 and smoked up to one pack of cigarettes per day at times until 2000. Norfolk moved to exclude the plaintiff’s expert, Dr. Arthur Frank, and also moved for summary judgment. The trial court found Dr. Frank’s testimony failed to “satisfy Tennessee’s Standards for Admissibility of Expert Opinion Testimony.” Accordingly, Dr. Frank was excluded as an expert. Lay witnesses were also excluded for lacking personal knowledge of asbestos in the plaintiff’s work place. Norfolk’s motion for summary judgment was then granted. The plaintiff appealed.

The court began its review of summary judgment and reminded that “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 summary judgment as a matter of law.” The standard for appeal is de novo according to the court. As for the FELA claim, the court noted that the jury’s hearing of the plaintiff’s experts was within the purview of the jury. However, that did not necessarily mean that the trial court erred in its decision to bar Dr. Frank. Relying on the Payne decision, the Court stated that the plaintiff failed to establish basic exposure evidence to asbestos at Norfolk since lay testimony had been excluded by the trial court. Moreover, the lay witnesses in the instant matter lacked personal knowledge concerning asbestos in the plaintiff’s workplace. The court stated that “without some evidence of asbestos exposure in Norfolk’s workplace, the plaintiff cannot tie the medical and historical evidence regarding the carcinogenic risk from asbestos.” In sum, the plaintiff missed this threshold requirement. Consequently, the court affirmed the trial court’s decision and remanded for costs.

Only the WestLaw citation is currently available at 2019 WL 549939.