A Lackawanna County judge has tossed out a suit filed by a former train conductor who claims he suffered permanent pulmonary damage from prolonged exposure to coal dust, finding that causation cannot be established without expert testimony from the medical community.
In Mullin v. Delaware & Hudson Railway, Lackawanna County Court of Common Pleas Judge Terrence R. Nealon granted summary judgment to defendant Delaware & Hudson Co. on the grounds that plaintiff James J. Mullin failed to present “an iota” of medical proof that his pulmonary issues were the result of his exposure to coal dust while working as a train conductor.
“Mullin has not identified a scintilla of medical proof suggesting that he has been diagnosed with pneumoconiosis or some other pulmonary injury and that such condition was caused, even slightly, by occupational dust exposure,” Nealon said.
In Mullin, Nealon said, the plaintiff filed suit against D&H, claiming he developed a pulmonary condition as a result of prolonged exposure to coal while working for the rail company.
On May 29, according to Nealon, Mullin filed a certificate of readiness claiming that “all discovery in the case has been completed and all depositions for use at trial have been scheduled or completed,” according to Nealon.
But on August 10, D&H filed a motion for summary judgment, arguing that Mullin had not submitted a report by a medical expert, Nealon said.
At oral argument November 1, according to Nealon, Mullin’s counsel admitted that no expert medical report had been obtained.
According to Nealon, Mullin’s case has been consolidated with seven other suits filed under the Federal Employers Liability Act in which former D&H employees claim they developed pneumoconiosis from coal dust exposure.
Mullin, however, is the only plaintiff in the case who has never submitted an expert medical report supporting his claim, Nealon said.
“Mullin has never been deposed and the summary judgment record is devoid of any medical record(s) indicating that Mullin has ever been diagnosed with a pulmonary ailment or that any such condition is in any way attributable to occupational exposure during his employment with D&H,” Nealon said. “Based upon the record submitted for review, Mullin’s pulmonary claim does not qualify as one where the causal relationship between his alleged pulmonary injury and his employment conditions is so obvious and direct that a layperson could ascertain their causal connection.”
Nealon said that, under the U.S. Court of Appeals for the Third Circuit’s 1991 opinion in Felton v. Southeastern Pennsylvania Transportation Authority, plaintiffs who bring claims under FELA must prove that they were employees of a rail company that was engaged in interstate commerce and that their duties furthered that commerce.
They must also prove that their injuries were sustained while they were employed with the rail company and were the result of the company’s negligence, according to Nealon.
Nealon also noted that under the U.S. Supreme Court’s 2011 ruling in CSXTransportation v. McBride, FELA claims are subject to a more relaxed standard of causation than the common law test, allowing plaintiffs to recover even if their employer played only a small part in causing their injury.
While expert testimony is not required to prove negligence in FELA cases, it is generally required to prove medical causation, except in those cases where the causal connection between the work the plaintiff did and the injury would be obvious even to a layperson, according to Nealon.
Still, Nealon noted that medical causation under FELA is broad, citing the Third Circuit’s 1991 ruling in Hines v. Consolidated Rail, in which it found that “‘a medical expert can testify that there was more than one potential cause of a plaintiff’s condition.’”
“However, without some form of supporting medical proof, the employee cannot properly establish medical causation,” Nealon said.
Therefore, Nealon said, Mullin’s suit must be tossed.
“The only materials submitted for our review clearly reflect that there is a ‘zero probability’ that any negligence by D&H contributed to a pulmonary injury allegedly suffered by Mullin,” Nealon said.
Mullin’s attorney, Gerard J. Martillotti of Jerry Martillotti & Associates in Philadelphia, could not be reached for comment at press time.
Counsel for D&H, J. Lawson Johnston of Pion, Johnston, Nerone, Girman, Clements & Smith in Pittsburgh, also could not be reached.
(Copies of the eight-page opinion in Mullin v. Delaware & Hudson Railway, PICS No. 12-2197, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •