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Expert’s Questionable Report Ultimately Thwarts Summary Judgment (PA)

June 9, 2023

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In deciding an appeal from the Court of Common Pleas of Philadelphia County, the Superior Court of Pennsylvania determined that summary judgment in a personal injury action was inappropriately granted in favor of defendant Consolidated Railroad Corporation (Conrail). The trial court’s conclusion that no genuine issue of material fact was created as to causation even though a belated plaintiff’s expert’s report concerning the alleged exposure to asbestos and diesel was deemed error.

The plaintiff claimed that his work for the defendant exposed him to asbestos and caused him to develop stage 0 chronic lymphocytic leukemia (CLL). An expert for the plaintiff produced a report that indicated how long the plaintiff was exposed to asbestos and the lack of non-occupational sources of cancer-causing chemicals, such as cigarette smoke. Conrail filed a motion for summary judgment asserting that the expert’s report failed to provide a methodology for reaching the opinion that occupational exposure caused the plaintiff’s injury. The trial court was persuaded that the expert could not reach an opinion as to causation because it found that the report did not indicate the level or manner of exposure.

The Superior Court disagreed. Instead, the Superior Court noted that the expert’s opinions were derived from the industrial report of another expert discussing plaintiff’s exposure levels in detail and providing a generally accepted methodology. The appellate court also noted that dose analysis is not required for an expert to opine as to medical causation, and drawing inferenced from published scientific literature is itself a generally accepted methodology of expert opining.

However, the methodological sufficiency of the expert’s report was not the only factor recognized in concluding that there was a genuine issue of material fact; the Superior Court of Pennsylvania emphasized the special standard of proof under FELA. Citing <em>Labes v. New Jersey Transit Rail Operations, Inc., </em>863 A.2d 1195 (Pa. Sup. Ct. 2004), the appellate court explained that under FELA a case should be permitted to reach the jury if the proofs justify the conclusion that employer negligence played even the slightest part in producing the plaintiff’s injury. If it is possible that the employee’s injuries may have resulted from the employer’s negligence, summary judgment is not appropriate.

<em><a href="https://www.wcmlaw.com/wp-content/uploads/2023/06/Anderson-v.-Consolidated-Rail-Corporation.pdf">Anderson v. Consolidated Rail Corporation</a></em>, 2023 WL 2607444 (Pa. Sup. Ct. 2023) shows us just how relaxed the standard for escaping summary judgment is for a plaintiff bringing a personal injury action under FELA. Even when the plaintiff alleges causation using an expert report that is arguably deficient, the plaintiff will have raised a genuine issue of material fact as to causation upon demonstrating the smallest likelihood that the employer contributed in the smallest way to the plaintiff’s injury. Thus, in a motion for summary judgment by a FELA defendant, a plaintiff’s seemingly inexpertly raised issue is likely still genuine.

Thanks to Ben Salvatore for his contribution to this article.  Should you have any questions, contact <a href="mcare@wcmlaw.com">Matthew Care</a>.

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