Judge Nealon Addresses Lack of Expert in FELA Claim

In the case of Mullin v. Delaware and Hudson Railway Company, Inc., No. 2005-Civil-3088 (C.P. Lacka. Co. Nov. 15, 2012 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas dismissed a Federal Employers’ Liability Act (FELA) claim alleging occupational exposure pulmonary damage on the grounds that the proof of medical causation was insufficient as a matter of law.

In this matter, the Plaintiff filed suit against his former employer, Defendant, Delaware and Hudson Railway Company, Inc., d/b/a Canadian Pacific Railway a/k/a CP Rail System alleging permanent pulmonary damage as a result of prolonged exposure to dust during the course of his employment as a conductor. 


Judge Terrence R. Nealon
Lackawanna County

 This case came before the Court by way of a Motion for Summary Judgment filed by the Defendant in which the Defendant asserted that the Plaintiff had not produced an expert report from a medical witness opining that the Plaintiff had developed any pulmonary condition due to heavy dust exposure, and, as such, the Plaintiff was unable to satisfy his burden of proof under the FELA.

Judge Nealon noted that, in order to prevail on a claim under the FELA, Plaintiff must prove: (1) that the Defendant was a common carrier by railroad engaged in interstate commerce; (2) that the Plaintiff was employed by Defendant and assigned to perform duties that further such commerce; (3) that Plaintiff’s injuries were sustained while the Plaintiff was employed by the common carrier; and (4) that the Plaintiff’s injuries resulted from the Defendant’s negligence. [citations omitted].

The Court also noted that FELA claims are subject to a relaxed standard of causation which standard provides for a recovery if the employee’s negligence played any part, no matter how small, in bringing about the employee’s injury. [citations omitted]. Judge Nealon noted that, in light of this liberal burden of proof, a Court was justified in granting summary judgment “only in those extremely rare instances where there is 0 probability either of employer negligence or that any such negligence contributed to the injury of the employee.” [citation omitted].

After applying the record before him to the applicable law, Judge Nealon ruled that, where the Plaintiff neglected to produce an expert medical report substantiating, or even addressing, his occupational exposure claim, the Motion for Summary Judgment should be granted. The Court also noted that this particular Plaintiff had never been deposed in this matter which was consolidated with a number of other matters, and there was no record indicating that this particular Plaintiff had ever been diagnosed with a pulmonary alignment or that any such alleged condition was in any way attributable to his occupation.

Judge Nealon further noted this particular Plaintiff had “not identified a scintilla of medical proof” or “an iota of medical evidence” in support of the causation element and, as such, based upon the record before the Court there was indeed a “zero probability” that any negligence by the Defendant employer contributed to any alleged pulmonary injury allegedly suffered by the Plaintiff.

Accordingly, summary judgment was granted.

Anyone desiring a copy of this Opinion by Judge Nealon in the case of Mullin may contact me at dancummins@comcast.net.