Aguirrev.Long Is. Rail Rd. Co.

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Supreme Court of the State of New York, Kings CountyJul 16, 2007
2007 N.Y. Slip Op. 51384 (N.Y. Misc. 2007)


Decided July 16, 2007.

Paul C. Garner, Esq., Brewster, NY, Attorney for Plaintiffs.

John A. Bonventre, Esq., One Gateway Center — 4th Fl., Newark, NJ, Attorney for Defendants.

Defendant Long Island Railroad Company (the LIRR) moves, pursuant to CPLR 4404, for (1) an order granting judgment in its favor notwithstanding the jury verdict and dismissing the complaint against it on the ground that the plaintiffs failed to prove, at trial, a prima facie case that their alleged exposure to toxic substances, including asbestos, while employed by the LIRR caused them to develop chronic obstructive pulmonary disorder (COPD) or, alternatively, (2) granting a new trial as to all of the plaintiffs' claims concerning non-asbestos dust COPD on the ground that the jury verdict in favor of plaintiffs with respect to such claims was against the weight of the evidence. The LIRR also moves for a new trial on damages or, alternatively, the grant of a substantial remittitur with regard to same. Plaintiffs Lincoln Aguirre, James F. Harrington and Albito Velez-Zapata oppose the instant motion on the grounds that: (1) they adequately established their prima facie case at trial; (2) the jury verdict was supported by sufficient evidence; (3) said verdict was not against the weight of the evidence and (4) the damages awarded were not excessive in light of the injuries sustained. In addition, plaintiff Harrington cross-moves to set aside the apportionment reached by the jury finding him 40% liable for his injuries and the LIRR 60% liable for same.


In the instant action, plaintiffs allege that they were injured while employed by the LIRR by their exposure to toxic chemicals, diesel fumes, metal dusts and asbestos. The action was commenced in 1996 and was originally tried by the court (Barbaro, J.) from September 14 through October 1, 1999. The jury found that the LIRR was negligent and that such negligence caused all three plaintiffs to sustain COPD. The jury also found that

Aguirre suffered form asbestosis and fear of cancer. Aguirre was awarded $530,000 ($30,000 past pain and suffering, $500,000 future pain and suffering), Harrington was awarded $162,500 ($25,000 past pain and suffering and $137,500 future pain and suffering) and Velez-Zapata was awarded $357,500 ($25,000 past pain and suffering and $357,500 future pain and suffering). By order dated September 10, 2001, the Appellate Division, Second Department, granted the LIRR a new trial on the issue of liability, due to, inter alia, the erroneous admission into evidence of an x-ray, and on the issue of damages, since the award deviated materially from what would be reasonable compensation for the plaintiffs' injuries. Subsequently, the trial which is the subject of the instant motion was held from April 18, 2006 to April 26, 2006.

At trial, the three plaintiffs testified as to the nature of their working conditions and the respiratory symptoms they allegedly suffered as a result of their exposure to various toxic substances while at work. The plaintiffs also presented two expert witnesses at trial. Dr. Victor Marchione provided medical testimony with respect to the injuries allegedly suffered by plaintiffs and Dr. Michael Ellenbecker testified with respect to liability issues related to the plaintiffs' alleged exposure to said toxic materials.

Lincoln Aguirre

Plaintiff Aguirre testified that he was employed by the LIRR as a laborer and machinist from 1972 to 2002. With respect to his exposure to metal dust, he stated that as a laborer he "cleaned up" metal chips created when train wheels were cut by picking up such chips with a shovel and placing them outside of the work area in a bin. He further stated that in the course of working with the metal chips he could see particles flying around in the air and his clothes had flakes of metal on them while he worked. He also testified that at the end of the work day he would blow his nose and "black stuff" would come out, and his saliva was also "dark" at times. He also described his exposure to asbestos during the course of his employment. With respect to his symptoms, he testified that he experienced tiredness, breathing problems, chest congestion and phlegm. He further testified that "his condition varies. Sometimes it stays the same or sometimes it gets worse."

Dr. Marchione testified at trial that Aguirre suffers from COPD and asbestosis. He stated that when Aguirre first came to see him he complained of "shortness of breath, cough, chest congestion [and] sputum, which was thick and yellow." The symptoms alternately worsened and improved over the course of Aguirre's office visits. Dr. Marchione testified that "I feel within a reasonable degree of medical certainty the causation of his ongoing lung disease is secondary to the work environment at the [LIRR] where he has been exposed to excess dust, chemicals, fumes and asbestos." He also opined that, in the future, Aguirre "will progress in terms of his shortness of breath and his respiratory findings and be less and less capable of doing the daily activities of living without some intervention." He stated that he had also found "cement-like asbestos scarring" on Aguirre's lungs that would "continue to become more of an issue, compromising him further."

James F. Harrington

Plaintiff Harrington testified that he was employed by the LIRR as a machinist from 1982 to 1996. He also testified that he had smoked for approximately 37 years, but "never. . . more than one pack of cigarettes a day" and, in the previous few years, had "basically quit." He stated that he suffered from "breathing problems with the COPD, with the asbestosis. . . from breathing in the asbestos and the chemical fumes and diesel fumes and carbon monoxide. Just the dirt, the grease and the grime. . . everything was. . . blowing all over the place, the asbestos, and so on, so forth."

Dr. Marchione testified that Harrington "presented with chief complaints of shortness of breath on minimal exertion with the accompanying coughs [and] productable [sic] white sputum. He also had some history of weezing [sic] in his past medical history." He also testified that Harrington informed him that he had been "exposed to a variety of inhaled irritants, including asbestos, diesel fumes, carbon monoxide, particularly yard dust, chemicals and related fumes form those various chemicals." With respect to a diagnosis, Dr. Marchione opined that Harrington suffers from COPD "[t]hat is multi-factorial, the cigarette by far is a mayor [sic] constricting factor as is the exposure to the varied dust and irritants he was exposed to at the workplace." Dr. Marchione also stated that cigarette smoking is the "number one" cause of COPD.

Albito Velez-Zapato

Plaintiff Velez-Zapato testified that he was employed by the LIRR from October 1979 to June 2000 as a laborer, machinist-helper and machinist. He further testified that he was exposed to asbestos during the course of his work. With respect to dust, he stated that he came into contact with metal dust from grinding and welding which originated from the head break units and from the cutting of steel train wheels. He testified that "there was a lot of dust, smoke. . . all the dust from the metal particles from the grinding." He stated that the indoor areas where the grinding was done had "very poor" ventilation. He also stated that when he had worked cleaning up such dust with a shovel "the dust comes up and you breathe all that metal dust." In addition, he stated that he was exposed to diesel fumes while fueling train engines. He did wear a mask while working approximately three to four times a week and used a respirator about once a week. In terms of symptoms, he testified that he experienced coughing, problems with breathing and phlegm and was also diagnosed with asthma in 1995.

Dr. Marchione testified that Velez-Zapata presented with "shortness of breath' and "some wheezing." He also testified that Velez-Zapata described being exposed to asbestos while grinding gaskets and witnessing asbestos and other dust particles "suspended in the air." Dr. Marchione stated that "by virtue of [that] activity one can envision a tremendous spillover of particulate matter. Just enormous, intense amounts of asbestos and other dust. It is in that cloud which you breathe, breath by breath, for the entire time you are in that environment." He also testified that Velez-Zapata informed him that he had "inhaled irritants including diesel fumes, hydrocarbons, particulates, yard dust chemicals and the asbestos." He further testified that diesel fumes are "irritants and cancer-producing over time" and "hydrocarbons are the same category as the by-product from the diesel fumes." In addition, "[p]articulants of other nature, whether it be dust or soot which is accumulated in the environment, all irritate ultimately the breathing tubes and the spongy tissue, that elastic tissue of the lung." He stated that his diagnosis for Velez-Zapata was "asbestosis" and "[h]is asthma-like presentation." He opined that the "industrial asthma" suffered by Velez-Zapata was most likely caused by "multiple offending agents in the environment in which he worked," with "dust [as] the major concern."

Dr. Michael Ellenbecker, an industrial hygienist, also testified at trial as the plaintiff's liability expert. Dr. Ellenbecker stated that "90% of my research. . . [is] about exposure to airborne contaminants, how you measure it, how you control it." Based upon the documents and depositions he had reviewed, he determined that the LIRR did not recognize or identify the various work practices and jobs at the subject railroad that involved asbestos exposure until "the late 80's or 90's."

With respect to the health hazards posed by asbestos, he stated that there was "a hundred percent agreement that any exposure to airborne asbestos should be avoided by workers because of the dangers of developing these cancers [referring to lung cancer and mesothelioma]."He also stated that as early as the 1920's, "[studies] found that there was an association [between asbestos exposure and asbestosis] and this exposure to airborne asbestos fibers causes asbestosis." He noted that "[f]or asbestosis it takes a certain amount of exposure to cause that disease, but for cancer any exposure is dangerous." Concerning exposure to asbestos, he opined that if an employer had exposed its employees to asbestos during the 1980's and 1990's, said employer would not be providing its employees with a reasonably safe workplace. He stated that he did not find any evidence that the LIRR had evaluated levels of asbestos exposure until "well into the 80's."

Concerning the nature of the alleged asbestos exposure of Velez-Zapata and Harrington, both of whom worked on grinding asbestos gaskets at the LIRR, he stated that he "could not put a number" on their exposure because he had not seen any measurements, but he noted that they had described "visible dust being created by the grinding of the gaskets." Based upon such description, "and the measurements that other people have taken at other settings," he opined that their exposure was "very high, much higher than any allowable level." He also stated that Aguirre's description of encountering visible dust particles in the air associated with spray-on asbestos insulation while working on so-called "power pack" railroad cars at the LIRR demonstrated "a very high level of exposure." He did not recall reviewing any air samples taken by the LIRR for machinists' workplaces or for anyone grinding gaskets or working in asbestos-insulated "power pack" car areas, but did recall seeing some air sampling done by the LIRR with respect to asbestos removals. He also stated that about half the gaskets used by the LIRR in 1993 contained asbestos. Moreover, to the extent it was the practice of employees, such as Velez-Zapata and Harrington to remove old gaskets by grinding them off with a wire brush, without proper ventilation or use of respirators, such practice would create "very large. . . clouds of airborne particles, including airborne asbestos fibers" and would result in "a very high exposure. . . to asbestos and that would be an unsafe work condition."

Concerning exposure to other substances, Dr. Ellenbecker stated that "I think it's clear from the testimony that [the plaintiffs] had other unsafe exposures. For example, diesel exhaust, probably. . . Aguirre more so than the other two gentlemen because he worked on the locomotive as opposed to the shop where the other two gentlemen work[ed] on parts of locomotives." He further stated that "[t]here's diesel exposure evidence of solvent exposure to these workers. Evidence of other metals machinists might typically work with from grinding metals and so forth." He described diesel exhaust as "basically a mixture of several different hundreds of chemicals, many of which are hazardous chemicals." In addition, he cited to a study that found higher rates of lung cancer among railroad workers who were exposed to diesel exhaust. He also opined that a typical "dust mask" or "painter's mask" would not be sufficient protection against fumes from solvents or diesel fumes. With respect to metal dust, he noted that because there were "so many different types of metals," a dust mask would be sufficient for some metals, such as iron, but inadequate for others, such as lead.

At the close of plaintiffs' case, the LIRR moved to strike all testimony with respect to plaintiffs' claims of exposure to any and all toxic substances on the ground that such exposure was not properly quantified for purposes of demonstrating causation. The court decided that all testimony about diesel fumes and toxic chemicals other than asbestos would be stricken. However, the court declined to give the more narrow instruction that the jury could only consider evidence concerning asbestos. Ultimately, the court instructed the jury that it had "stricken all testimony at this trial about diesel fumes and about exposures to toxic chemicals. You may not consider either exposure to diesel fumes or toxic chemicals in your deliberations." The LIRR also moved for a directed verdict at trial on grounds similar to that asserted in the instant 4404 motion and such application was denied.

After the case was sent to the jury, the jury returned special verdicts in the form of answers to questions propounded by the court. Specifically, the jury found that the LIRR was negligent and that such negligence caused the plaintiffs to suffer from COPD. However, the jury found that the LIRR's negligence did not cause plaintiffs to develop "asbestos related disease." Accordingly, the jury awarded Lincoln Aguirre $3,000,000 for past pain and suffering and $3,000,000 for future pain and suffering, Harrington $2,000,000 for past pain and suffering and $2,000,000 for future pain and suffering and Albito Velez-Zapata $4,000,000 for past pain and suffering and $4,000,000 for future pain and suffering. With respect to Harrington, liability was apportioned as between Harrington (40%) and the LIRR (60%) and his damages award was reduced accordingly. Subsequently, the LIRR brought the instant 4404 motion.


In support of its instant motion, the LIRR primarily argues that the plaintiffs failed at trial to proffer legally sufficient evidence to support their claims of general and specific causation with respect to their alleged exposure to asbestos and unidentified dusts, including so-called "metal dusts" and their alleged subsequent development of COPD. The LIRR contends that neither expert witness for plaintiffs testified as to: (1) the plaintiffs' level of exposure to the toxic substance in question; (2) proof from a review of the relevant scientific literature and studies that the toxin in question (asbestos or dusts, including metal dusts) was capable of producing the claimed illness (in this case COPD), and the level of exposure to the toxin which is needed to produce the specific illness and (3) proof which would establish specific causation by demonstrating the probability that the subject toxic substance actually caused the particular plaintiff's illness as opposed to some other cause. In the absence of such proof, the LIRR argues, the verdict rendered by the jury in favor of plaintiffs was not based upon legally sufficient evidence.

In opposition to the instant motion, the plaintiffs maintain that Dr. Marchione, their medical expert, "quantified [the] plaintiffs' exposure to dusts, conducted a scientific analysis of the exposures, the medical evidence and the relevant scientific research in pulmonology and reached a scientifically sound opinion" as to causation and, therefore, the jury verdict rendered in favor of plaintiffs was based upon legally sufficient evidence.


It is well settled that "[a] verdict is not supported by legally sufficient evidence if there is no valid line of reasoning and permissible inferences which could possibly lead rational [persons] to the conclusion reached by the jury on the basis of the evidence presented at trial'" (Lallemand v Cook, 23 AD3d 533, 534, quoting Aprea v Franco, 292 AD2d 478, quoting Cohen v Hallmark Cards, 45 NY2d 493, 499; see also Cahill v Triborough Bridge Tunnel Auth., 31 AD3d 347, 349; Vasquez v Figueroa, 262 AD2d 179, 180). Relatedly, "a jury verdict is against the weight of the evidence [if] the evidence so preponderated in favor of the movant that the verdict could not have been reached on any fair interpretation of the evidence" (Tapia v Dattco, 32 AD3d 842, 843; see also Sun v Cold Spring Harbor Laboratory, 30 AD3d 582, 582). It is axiomatic that "[c]redibility of witnesses and resolution of conflicting proofs are matters properly for determination by a jury" (Mazariegos v New York City Transit Auth., 230 AD2d 608, 609). Therefore, "[t]he determination of the jury, which observed the witnesses and the evidence, is entitled to great deference" (Enright v Byrne, 20 AD3d 549, 549; see also Evers v Carroll, 17 AD3d 629, 631; Zweben v Casa, 17 AD3d 583, 583; Lalla v Connolly, 17 AD3d 322, 323; Rockowitz v Greenstein, 11 AD3d 523, 524; Yau v New York City Transit Auth., 10 AD3d 654, 654, lv denied 4 NY3d 701). Moreover, "a successful party is entitled to a presumption that the jury adopted a reasonable view of the evidence" (Bertelle v New York City Transit Auth., 19 AD3d 343, 343). Accordingly, "the discretionary power to set aside a jury verdict. . . must be exercised with considerable caution" (Shachnow v Myers, 229 AD2d 432, 433). Although the decision to set aside a verdict "involves balancing many factors. . . [t]he ultimate test is whether any viable evidence exists to support the verdict" ( see Rugo v Osowiecky, 256 AD2d 839, 840).

As an initial matter, the court notes that the instant action is premised upon the Federal Employees' Liability Act (FELA) which "supercedes the common law and state laws, constitutional and statutory, relating to the liability of railroads for injury to employees in interstate commerce, and the FELA remedy is exclusive"( Pappalardo v Long Island Railroad Co., 11 Misc 3d 744, 748). Although federal law applies, in all instances, with respect to the substantive law issues in a FELA action, when such cases are tried in state courts the procedural rules of the state govern ( id.). Moreover, it is well established that "a relaxed standard of proof concerning causation applies in FELA cases. The test is whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury" ( Ulfik v Metro-North Commuter Railroad, 77 F3d 54, 58 [2d Cir 1996] [internal quotation marks and citations omitted]). Accordingly, "an employer may be held liable under FELA for risks that would otherwise be too remote to support liability at common law" ( id.). However, as noted by the Ninth Circuit Court of Appeals in Claar v Burlington Northern Railroad Co., 29 F3d 499, 503):

This does not mean. . . that FELA plaintiffs need make no showing of causation. Nor does it mean that in FELA cases courts must allow expert testimony that in other contexts would be inadmissible. It means only that in FELA cases the negligence of the defendant need not be the sole cause or whole cause of the plaintiff's injuries. FELA plaintiffs still must demonstrate some casual connection between a defendant's negligence and their injuries.

[internal quotation marks and citations omitted].

Accordingly, in a FELA case, plaintiffs seeking to demonstrate that exposure to chemicals in their workplace caused them injuries must still rely upon expert testimony "to establish even that small quantum of causation required by FELA" ( id at 504); cf. Wills v Amerada Hess Corp., 379 F 3d 22, 47 [2d Cir 2004], cert denied 126 S. Ct. 355 [noting that although both FELA and the Jones Act, pursuant to which the Wills case was brought, impose a reduced burden of proof on plaintiffs with respect to causation, such relaxed causation standard nonetheless did not abrogate the applicable laws governing the admission of expert medical or scientific testimony]).

Under New York law, "[i]t is well established that an opinion on causation should set forth a plaintiff's exposure to a toxin, that the toxin is capable of causing the particular illness (general causation) and that plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation)" ( Parker in Mobil Oil Corp., 7 NY3d 434, 448 (2006). In Parker, the Court of Appeals noted that "[o]ne problem with establishing causation in toxic tort cases is that, often, a plaintiff's exposure to a toxin will be difficult or impossible to quantify by pinpointing an exact numerical value ( id. at 447. In light of this common dilemma, the Court determined that "it is not always necessary for a plaintiff to quantify exposure levels precisely or use the dose-response relationship, provided that whatever methods an expert uses to establish causation are generally accepted in the scientific community" ( id. at 448). The Court recognized that "exposure can be estimated. . . by taking a plaintiff's work history into account" and "[i]t is also possible that more qualitative means could be used to express a plaintiff's exposure" ( id. at 449).

Applying these principles to the instant case, it cannot be said that there is no valid line of reasoning which could possibly lead rational persons to the conclusion reached by the jury on the basis of the evidence presented at trial, and, therefore, this court concludes that the verdict here is supported by legally sufficient evidence. Dr. Ellenbecker testified with respect to the causal link between asbestos exposure and various diseases, and he ascertained that the plaintiffs were exposed to unsafe levels of asbestos based upon evidence that plaintiffs had witnessed "clouds of dust" while either grinding gaskets which contained the substance or working in so-called "power pack" railroad cars utilizing asbestos insulation. Based upon the plaintiffs' work history, work conditions and exposure studies done under conditions similar to those experienced by plaintiffs, Dr. Ellenbecker concluded that plaintiffs had experienced significant exposure to asbestos and that such level of exposure had been linked to asbestos-related medical conditions. Dr. Marchione testified that Aguirre and Harrington had sustained COPD and asbestosis as a result of their exposure to a mixture of substances, including asbestos, which they encountered at their workplace, and that Velez-Zapata suffered from "industrial asthma" and asbestosis. The permissible inferences from the testimony of plaintiffs' doctors could lead a jury to conclude that plaintiffs' exposure to dusts was a substantial factor in their lung ailments and that such exposure was due to defendant's negligence. Accordingly, the branch of the motion for judgment notwithstanding the verdict is denied.

Similarly, the branch of the motion to overturn the verdict as against the weight of the evidence is denied. It cannot be said that the verdict could not have been reached on any fair interpretation of the evidence.

As noted earlier, the jury awarded Aguirre $3,000,000 for past pain and suffering, and $3,000,000 for future pain and suffering. Harrington was awarded $2,000,000 for past and $2,000,000 for future pain and suffering, which was reduced by 40% because of his comparative negligence. Velez-Zapato was awarded $4,000,000 for past and $4,000,000 for future pain and suffering. These awards, however, materially deviate from what would be reasonable compensation (see CPLR 5501[c]). Accordingly, the branch of the motion to set aside the verdict as to damages, and for a new trial on that issue, is granted, unless within 30 days of service of a copy of this order with notice of entry, plaintiffs agree to the following reduction of damages: Aguirre — $150,000 for past pain and suffering, and $150,000 for future pain and suffering. Harrington — $150,000 for past pain and suffering, and $150,000 for future pain and suffering. Velez-Zapata — $150,000 for past pain and suffering, and $150,000 for future pain and suffering.

The parties' remaining contentions, including the cross motion by Harrington to set aside the jury's apportionment of liability, is denied.

The foregoing constitutes the decision and order of the court.

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