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Hearing Date: No hearing scheduled
Location: <>
Judge: Calendar, B
FILED
12/6/2022 2:53 PM
IRIS Y. MARTINEZ
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA CIRCUIT CLERK
COURT OF COMMON PLEAS COOK COUNTY, IL
FILED DATE: 12/6/2022 2:53 PM 2021L003966
TRIAL DIVISION, CIVIL SECTION 2021L003966
Calendar, B
20567968
WILLIAM R. ANDERSON,
Plaintiff, | AUGUST TERM, 2017
| NO. 0 1 984 OPFLD-Anderson Vs Consilidated Rail Corporation
v
RAIL CORP.
IDATED
CONSOLDefendant. ARN
EAA17080198400187
SUPERIOR COURT 1573 EDM 2021
MEMORANDUM OPINION PURSUANT TO Pa. R.A.P. 1925(b)
Appellant, William R. Anderson, seeks review of an order granting summary judgment in
favor of the defendant and against the plaintiff. In its order, dated July 26, 2021, the court found
that the plaintiff’s expert report failed to establish causation.
L. PROCEDURAL HISTORY:
Appellant commenced this personal injury action under the Federal Employers Liability
Act (“FELA™), by complaint, on August 22, 2017. A Case Management Order (“CMO”) listing,
inter alia, expert report deadlines was issued on December 5, 2017. The first CMO provided that
the plaintiff’s expert report was due no later than November 5, 2018. The deadline was extended
on four occasions, the last being April 1, 2021, wherein it provided that “Plaintiff shall submit
expert reports not later than 03-May-2021." See CMO (04/01/2021). Despite the directive, and
with no permission or excuse, the Plaintiff submitted the expert report of Dr. Mark Levin (the
“Levin Report”) on May 5, 2021.
On June 7, 2021, after the close of discovery, the Defendant filed its Motion for Summary
Judgment pursuant to Pa. R.C.P. § 1035.2. On July 26, 2021, this court granted the motion. A
Exhibit V
timely appeal was filed four days later. On August 27, 2021, Appellant filed with this court his
FILED DATE: 12/6/2022 2:53 PM 2021L003966
Statement of Errors Complained of on Appeal. This opinion is in submitted in response.
II. FACTS
This matter was commenced by Complaint on August 22, 2017. In his complaint,
Appellant alleged that occupational exposures to diesel exhaust, creosote, and asbestos, while
working for Consolidated Rail Corp. (“Conrail”) as a timekeeper and trackman caused him to
develop stage 0 chronic lymphocytic leukemia (“CLL”). Appellant offered the Levin report by
Mark Levin, M.D. (the “Levin Report”), late, on the issue of causation.
While it was reported that the Appellant was employed at Conrail from 1976 to 1990, the
Levin Report noted that there were periods where the Appellant was laid off. Levin Report, p. 2.
The Levin Report failed to identify the length of these periods of lay-off. The Levin Report also
noted that the plaintiff worked as a truck driver operating diesel-powered vehicles, trucks and
tractor-trailers, during the same period from 1972 to 2012.
There is no portion of the Levin Report that identifies the level of exposure during work
at Conrail or the length of exposure. The Levin Report merely concludes that the Appellant’s
“exposure to benzene was more likely than not a contributory cause of his CLL.” Any reference
to asbestos did not rank more than a conciliatory paragraph in the Levin Report.
III. LEGAL DISCUSSION:
Pennsylvania Rules of Civil Procedure §1035.2 provides, in relevant part, that:
After the relevant pleadings are closed, but within such time as not to unreasonably
delay trial, any party may move for summary judgment in whole or in part as a
matter of law
(2) if, after the completion of discovery relevant to the motion, including the
production of expert reports, an adverse party who will bear the burden of proof at
Exhibit V
trial has failed to produce evidence of facts essential to the cause of action or
defense which in a jury trial would require the issues to be submitted to a jury.
FILED DATE: 12/6/2022 2:53 PM 2021L003966
“In considering the merits of a motion for summary judgment, a court views the record in the
light most favorable to the non-moving party, and all doubts as to the existence of a genuine
issue of material fact must be resolved against the moving party.” Sevast v. Kakouras, 591 Pa.
44, 52-53, 915 A.2d 1147, 1152-53 (2007). “It is clear that if a defendant is the moving party,
he may make the showing necessary to support the entrance of summary judgment by pointing to
materials which indicated that the plaintiff is unable to satisfy an element of his cause of action.”
Pa. R.C.P. No. 1035.2, Note.
The FELA provides a statutory cause of action sounding in negligence. “[Ejvery common
carrier by railroad ... shall be liable in damages to any person suffering injury while he is
employed by such carrier ... for such injury or death resulting in whole or in part ... due to its
negligence, in its cars, engines, ... or other equipment.” 45 U.S.C. § 51. “Under the FELA, the
plaintiff must prove the common law elements of negligence: duty, breach, foreseeability, and
causation.” Manson v. SEPTA 767 A.2d 1, 4 (Pa. Commw. 2001). Here, the Appellant failed to
sustain a required element of his prima facie case under the FELA.
There is no dispute that an expert report was required to establish causation in this case.
Pennsylvania Rules of Evidence (the “Rules”) provide, in relevant part, that “[a] witness who is
qualified as an expert by knowledge, skill, experience, training, or education may testify in the
form of an opinion or otherwise if ... (c) the expert's methodology is generally accepted in the
relevant field.” Pa. R.E. 702. The Rules further provide, “If an expert states an opinion the
expert must state the facts or data on which the opinion is based.” Pa. R.E. 705.
Excusing formatting and grammatical issue, the Levin Report was not only late but
deficient. It failed to identify generally accepted methodologies used to support the opinions
Exhibit V
offered. In addition, there is no mention of the manner or levels of plaintiff’s exposure to (of)
“diesel exhaust, creosote, and asbestos.” Lastly, the Levin Report merely concludes that the
FILED DATE: 12/6/2022 2:53 PM 2021L003966
Appellant's “exposure to benzene was more likely than not a contributory cause of his CLL,” but
fails to identify the source of the exposure. At best, the Levin Report makes the case for a
correlation, not causation. Even under FELA’s relaxed standard of causation, more is required.
IV. CONCLUSION
For the above stated reasons, the motion for summary judgment filed by Conrail was
granted in its entirety. This court’s order of July 26, 2021 should be affirmed.
DATE: 9 Vz Japa] BY THE COURT:
(Mn,
ALLEN, J.
|\
Exhibit V
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Hearing Date: No hearing scheduled Location: <> Judge: Calendar, B FILED 12/6/2022 2:53 PM IRIS Y. MARTINEZ FIRST JUDICIAL DISTRICT OF PENNSYLVANIA CIRCUIT CLERK COURT OF COMMON PLEAS COOK COUNTY, IL FILED DATE: 12/6/2022 2:53 PM 2021L003966 TRIAL DIVISION, CIVIL SECTION 2021L003966 Calendar, B 20567968 WILLIAM R. ANDERSON, Plaintiff, | AUGUST TERM, 2017 | NO. 0 1 984 OPFLD-Anderson Vs Consilidated Rail Corporation v RAIL CORP. IDATED CONSOLDefendant. ARN EAA17080198400187 SUPERIOR COURT 1573 EDM 2021 MEMORANDUM OPINION PURSUANT TO Pa. R.A.P. 1925(b) Appellant, William R. Anderson, seeks review of an order granting summary judgment in favor of the defendant and against the plaintiff. In its order, dated July 26, 2021, the court found that the plaintiff’s expert report failed to establish causation. L. PROCEDURAL HISTORY: Appellant commenced this personal injury action under the Federal Employers Liability Act (“FELA™), by complaint, on August 22, 2017. A Case Management Order (“CMO”) listing, inter alia, expert report deadlines was issued on December 5, 2017. The first CMO provided that the plaintiff’s expert report was due no later than November 5, 2018. The deadline was extended on four occasions, the last being April 1, 2021, wherein it provided that “Plaintiff shall submit expert reports not later than 03-May-2021." See CMO (04/01/2021). Despite the directive, and with no permission or excuse, the Plaintiff submitted the expert report of Dr. Mark Levin (the “Levin Report”) on May 5, 2021. On June 7, 2021, after the close of discovery, the Defendant filed its Motion for Summary Judgment pursuant to Pa. R.C.P. § 1035.2. On July 26, 2021, this court granted the motion. A Exhibit V timely appeal was filed four days later. On August 27, 2021, Appellant filed with this court his FILED DATE: 12/6/2022 2:53 PM 2021L003966 Statement of Errors Complained of on Appeal. This opinion is in submitted in response. II. FACTS This matter was commenced by Complaint on August 22, 2017. In his complaint, Appellant alleged that occupational exposures to diesel exhaust, creosote, and asbestos, while working for Consolidated Rail Corp. (“Conrail”) as a timekeeper and trackman caused him to develop stage 0 chronic lymphocytic leukemia (“CLL”). Appellant offered the Levin report by Mark Levin, M.D. (the “Levin Report”), late, on the issue of causation. While it was reported that the Appellant was employed at Conrail from 1976 to 1990, the Levin Report noted that there were periods where the Appellant was laid off. Levin Report, p. 2. The Levin Report failed to identify the length of these periods of lay-off. The Levin Report also noted that the plaintiff worked as a truck driver operating diesel-powered vehicles, trucks and tractor-trailers, during the same period from 1972 to 2012. There is no portion of the Levin Report that identifies the level of exposure during work at Conrail or the length of exposure. The Levin Report merely concludes that the Appellant’s “exposure to benzene was more likely than not a contributory cause of his CLL.” Any reference to asbestos did not rank more than a conciliatory paragraph in the Levin Report. III. LEGAL DISCUSSION: Pennsylvania Rules of Civil Procedure §1035.2 provides, in relevant part, that: After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at Exhibit V trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. FILED DATE: 12/6/2022 2:53 PM 2021L003966 “In considering the merits of a motion for summary judgment, a court views the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.” Sevast v. Kakouras, 591 Pa. 44, 52-53, 915 A.2d 1147, 1152-53 (2007). “It is clear that if a defendant is the moving party, he may make the showing necessary to support the entrance of summary judgment by pointing to materials which indicated that the plaintiff is unable to satisfy an element of his cause of action.” Pa. R.C.P. No. 1035.2, Note. The FELA provides a statutory cause of action sounding in negligence. “[Ejvery common carrier by railroad ... shall be liable in damages to any person suffering injury while he is employed by such carrier ... for such injury or death resulting in whole or in part ... due to its negligence, in its cars, engines, ... or other equipment.” 45 U.S.C. § 51. “Under the FELA, the plaintiff must prove the common law elements of negligence: duty, breach, foreseeability, and causation.” Manson v. SEPTA 767 A.2d 1, 4 (Pa. Commw. 2001). Here, the Appellant failed to sustain a required element of his prima facie case under the FELA. There is no dispute that an expert report was required to establish causation in this case. Pennsylvania Rules of Evidence (the “Rules”) provide, in relevant part, that “[a] witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if ... (c) the expert's methodology is generally accepted in the relevant field.” Pa. R.E. 702. The Rules further provide, “If an expert states an opinion the expert must state the facts or data on which the opinion is based.” Pa. R.E. 705. Excusing formatting and grammatical issue, the Levin Report was not only late but deficient. It failed to identify generally accepted methodologies used to support the opinions Exhibit V offered. In addition, there is no mention of the manner or levels of plaintiff’s exposure to (of) “diesel exhaust, creosote, and asbestos.” Lastly, the Levin Report merely concludes that the FILED DATE: 12/6/2022 2:53 PM 2021L003966 Appellant's “exposure to benzene was more likely than not a contributory cause of his CLL,” but fails to identify the source of the exposure. At best, the Levin Report makes the case for a correlation, not causation. Even under FELA’s relaxed standard of causation, more is required. IV. CONCLUSION For the above stated reasons, the motion for summary judgment filed by Conrail was granted in its entirety. This court’s order of July 26, 2021 should be affirmed. DATE: 9 Vz Japa] BY THE COURT: (Mn, ALLEN, J. |\ Exhibit V