A Lackawanna County judge has consolidated the cases of eight railroad workers suing the same employer under the same federal law for negligent exposure to coal dust and diesel fumes.

Court of Common Pleas Judge Terrence R. Nealon’s decision, in granting the plaintiffs’ joint trial motion under Pa.R.C.P. 213(a), turned on the standard that all the matters involved a common question of law or fact. In this case, it was both, as the men are all seeking solely non-economic damages under the Federal Employers’ Liability Act for their exposures to toxic dust and fumes.

In so holding, Nealon denied the bid of Delaware and Hudson Railway Co. to keep the matters separate in order to avoid prejudice and jury confusion.

Nealon noted that because the eight plaintiffs were alleging they developed the lung disease pneumoconiosis as a result of occupational exposure to coal dust and diesel fumes, the common question of law was met. The men would enjoy FELA’s “relaxed standard of causation,” he added, which provides for recovery in even the slightest instance of employer negligence. The common law standard is tougher.

There was also “considerable commonality” among their factual pleadings, Nealon said, even though three were engineers, two were car men and three were conductors. There was overlap among the plaintiffs in terms of who would describe the various locations of Delaware and Hudson. No plaintiff is seeking economic damages, Nealon said.

Considerations of judicial economy also tipped the scale in favor of the plaintiffs, who are all being represented by the same legal counsel.

According to the opinion in Fraynert v. Delaware and Hudson Railway, both parties estimated that each case, if tried individually, would take three to four days. In other words, eight juries and 24 to 32 days of Lackawanna’s court time.

A joint trial, it was stipulated, would only take eight to 10 days.

Seven of the eight workers had the same medical expert, while D&H has indicated it would offer the same medical expert for each claim. Nealon noted the experts, too, would be spared the inconvenience of eight trials.

D&H pled prejudice. Asking for separate trials, the company argued the men worked different jobs at different locations at different times. D&H contested it would be unduly prejudiced by a confused jury facing volumes of evidence. The jury would not be able to distinguish which plaintiffs did what, D&H pled. Accordingly, a jury could not properly determine whether exposure was a cause for each man’s damaged lungs.

Nealon was not persuaded.

“Plaintiffs are advancing virtually identical claims of work-related pneumoconiosis allegedly traceable to negligent exposure to coal dust and diesel fumes,” Nealon said in a 16-page opinion. “With the benefit of juror note-taking under Pa.R.C.P. 223.2, the jury will be able to catalogue and segregate each plaintiff’s alleged exposure to industrial elements while employed by D&H.”

“Carefully crafted special verdict interrogatories will also enable the jury to properly analyze and weigh the merits of each plaintiff’s FELA claim.”

Philadelphia attorney Gerard J. Martillotti, part of the legal team representing all eight men, said he was actually surprised the railroad company opposed the plaintiffs’ joinder motion.

“You don’t want to do the same case eight times — that’s for sure,” Martillotti, of Jerry Martillotti & Associates, said.

Martillotti added that while the men all had different jobs, that didn’t affect their exposure to the same products. If the case was about a repetitive, work-related motion causing harm, D&H would have had a better chance, Martillotti said.

“These aren’t based on body movements; it’s based on breathing,” Martillotti said. “If the exposure wasn’t identical, it was pretty much the same across the board.”

As for the joint cases affecting the payouts, “it’s certainly something to consider, but overall it can go the other way, too,” Martillotti said.

A mediation conference had been set for today as of press time.

D&H’s attorney, J. Lawson Johnston of Pion, Johnston, Nerone, Girman, Clements & Smith in Pittsburgh, did not return a call requesting comment.

Ben Present can be contacted at 215-557-2315 or bpresent@alm.com. Follow him on Twitter @BPresentTLI.

(Copies of the 16-page opinion in Fraynert v. Delaware and Hudson Railway, PICS No. 12-1880, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •