Opinion
DOCKET NO. A-5051-11T1
06-07-2013
EDWARD KOWALEWSKI, Plaintiff-Appellant, v. PORT AUTHORITY TRANS-HUDSON CORPORATION, Defendant-Respondent.
Patrick J. Finn(Hannon Law Office P.C.) argued the cause for appellant. Thomas R. Brophy argued the cause for respondent (Port Authority of New York & New Jersey, attorneys for respondent; Margaret Taylor Finucane, of counsel; Mr. Brophy, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano, Lihotz and Ostrer.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5721-10.
Patrick J. Finn(Hannon Law Office P.C.) argued the cause for appellant.
Thomas R. Brophy argued the cause for respondent (Port Authority of New York & New Jersey, attorneys for respondent; Margaret Taylor Finucane, of counsel; Mr. Brophy, of counsel and on the brief). PER CURIAM
Plaintiff appeals from the trial court's orders barring his liability expert's testimony as a net opinion, and granting summary judgment dismissal of his action under the Federal Employers' Liability Act (FELA), 45 U.S.C.A. §§ 51-60. Plaintiff alleged that as a train repairman for the Port Authority Trans-Hudson Corporation (PATH), he was negligently exposed to excessive and harmful cumulative trauma to his elbows, causing injury and disability. Plaintiff argues the court erred in excluding his expert's opinion that defendant breached the standard of care and its duty to provide a safe workplace. Plaintiff also asserts that even without the expert's opinion, he had presented sufficient evidence of negligence and causation of injury to defeat PATH's summary judgment motion. We disagree and affirm.
I.
We discern the following facts from the record, viewed in a light most favorable to plaintiff as the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
A PATH employee since 1989, plaintiff became a car repairman in 1996, after a three-year apprenticeship. He continued to serve in that job when he was deposed in 2011. However, his job duties as a car repairman varied. For ten years, he served mainly as a pipe fitter. However, he also performed other trades as a welder, crane operator, carpenter, tin smith, car body repairman and painter. Most recently, he was primarily assigned as an air conditioner repairman. He said he took the assignment because it was "better for [his] elbows."
As a pipe fitter, plaintiff initially worked with a senior partner for about four years, but then was required to work alone. More than half his time was spent performing repairs, which increased as the fleet aged; but, he also modified and constructed piping. He used torches, tubing cutters, wire brushes, threaders and pipe wrenches. Many of these tools and pipes were heavy. One wrench weighed twenty pounds. He manipulated the hand tools and pipes repeatedly throughout his work day.
Plaintiff alleged power tools existed that would have made his job easier, but PATH did not provide them. He also asserted PATH should have provided him compression sleeves for his elbows. Although he was required to wear various forms of safety equipment and apparel, no equipment was issued for his elbows until roughly 2009. He also suggested he did not receive training in how to avoid cumulative trauma injuries.
Plaintiff admitted attending annual physicals that revealed nothing abnormal about his elbows. PATH also held monthly safety meetings with a safety coordinator — a position he held at one point — in which employees were free to raise safety issues. Plaintiff acknowledged that PATH was required to follow the Occupational Safety and Health Administration (OSHA) and Federal Railroad Administration rules.
Around March 2009, plaintiff sought treatment from his internist for right-elbow pain, although plaintiff is left-handed. The internist prescribed medicine, a counterforce brace and physical therapy. Plaintiff missed work for two months. He returned to work and his elbow functioned satisfactorily for a couple of months. Then the pain returned to the right elbow, and plaintiff also began to experience pain in the left elbow, which prompted him to see Dr. Gregory P. Charko, an orthopedist, in September 2009.
Dr. Charko concluded plaintiff had lateral epicondylitis. Over the next several months, Dr. Charko treated plaintiff with anti-inflammatory medicine, steroid injections, physical therapy, and counterforce braces. Although the treatment was effective for a time, the pain returned.
Epicondylitis is the inflammation of a long bone near the articular extremity above or upon the condyle, or the "rounded articular surface at the extremity of a bone." Stedman's Medical Dictionary 428, 653 (28th ed. 2006). "Epicondylitis is one of the most common elbow problems in adults, occurring both laterally and medially. Medial epicondylitis of the elbow [is] commonly referred to as 'golfer's elbow[.]' . . . Lateral epicondylitis [is] often labeled 'tennis elbow[.]'" Michael C. Ciccotti, Michael A. Schwartz & Michael G. Ciccotti, Diagnosis and treatment of medial epicondylitis of the elbow, 23 Clinics in Sports Med. 693 (2004), available at http://www.med.nyu.edu/ pmr/residency/resources/Clinics_sports%20med/clinics%20NA%20spor ts_medial%20epicondylitis.pdf.
In April and June 2010, Dr. Charko operated on plaintiff's left, then right elbow. Each time, he performed a fasciotomy and epicondylectomy with tendon debridement and repair. Although the surgeries provided some relief, pain flared up in plaintiff's right elbow in March 2011. He continued using anti-inflammatory medicine, and sometimes Percocet.
A fasciotomy is an incision through the fascia, which is a "sheet of fibrous tissue that envelops the body beneath the skin." Stedman's Medical Dictionary, supra, at 700, 707. The procedure is used "when marked swelling is present or anticipated, that could compromise blood flow[.]" Id. at 707. Debridement involves the "[e]xcision of devitalized tissue and foreign matter from a wound." Id. at 496.
In a September 8, 2011 letter, Dr. Charko opined "within a reasonable degree of medical probability that the repetitive use of his hands did most probably result in this lateral epicondylitis in both elbows. As a result, I do feel his job definitely contributed to his epicondylitis and this did ultimately require surgical intervention on both sides."
Plaintiff had filed his complaint against PATH in October 2010. In November 2011, plaintiff served on PATH an expert report of Michael D. Shinnick, Ed.D. Dr. Shinnick opined plaintiff's job exposed him to the risk of lateral epicondylitis and PATH failed to provide him with a reasonably safe workplace. He stated:
PATH notes that plaintiff served the report after discovery closed, but apparently it did not seek to bar the opinion on that ground, nor did PATH seek Dr. Shinnick's deposition, opting instead to move to exclude his testimony.
2. PATH did not meet the standards for an adequate ergonomic work safety program, in regards to Mr. Kowalewski because:
a) PATH did not perform a work task analysis of the job performed by Mr. Kowalewski to determine if the work tasks posed a risk for injury.Based on the above, it is my opinion that the effects of performing the duties of his job with PATH exposed Mr. Kowalewski to repeated ergonomic work safety risk factors for injury to his elbows. Despite the knowledge and expertise available, PATH has not applied basic ergonomic work safety, human factors, or work task design practices and principles to the work tasks performed by Mr. Kowalewski. PATH did not educate Mr. Kowalewski nor has it instituted sufficient and timely medical management programs to identify and monitor workers at risk for injury, thereby failing to provide a reasonably safe work place for Mr. Kowalewski. PATH failed to provide a safe place to work and act as a prudent employer by not providing Mr. Kowalewski with an adequate work safety ergonomic program to minimize his exposure to WMSDs of the upper extremities.
b) PATH did not implement adequate hazard prevention and control measures to reduce Mr. Kowalewski's exposure to the known risk factors during his career or even when he returned to work after his bilateral elbow surgeries.
c) PATH failed to implement an adequate medical management program to identify and monitor workers at risk for injury. It also failed to meet the standard of an adequate ergonomic work safety program, in that it failed to train and educate Mr. Kowalewski about the risk factors for developing WMSDs [work-related musculo-skeletal disorders] such as lateral epicondylitis.
d) PATH also failed to meet the elements of a safety and ergonomic program by failing to train and educate Mr. Kowalewski about methods of performing his job tasks which may have reduced the exposure to the risk factors for lateral epicondylitis.
Dr. Shinnick relied in part on three telephone interviews with plaintiff. He reviewed plaintiff's deposition, and various items of document discovery. He specifically reviewed, among other things, plaintiff's medical and physical therapy records; PATH's rule book and car inspector job description; and various articles and publications pertaining to ergonomics and cumulative trauma disorders.
Dr. Shinnick recounted plaintiff's description of his job duties, which we have outlined, adding that plaintiff "mostly used his upper extremities in awkward postures while applying force as a pipe fitter." He also itemized a more extensive list of hand tools than disclosed in plaintiff's deposition. In addition, he summarized plaintiff's treatment with Dr. Charko.
Dr. Shinnick reviewed literature pertaining to ergonomic guidelines, and musculoskeletal disorders caused by cumulative trauma in the workplace. He cited various publications from government agencies, including OSHA, the National Institute for Occupational Safety and Health (NIOSH), and the Centers for Disease Control and Prevention (CDC). He summarized that work-related musculoskeletal disorders, such as lateral epicondylitis, may be caused by repeated exposure to the force of exertion or contact stress, awkward postures, heavy loads, absorption of vibration and recoil impact, among other factors.
Dr. Shinnick stated that "various research studies indicate that the highest incidence of epicondylitis occurs in occupations and job tasks which are manually performed and have high work demands for intensive exertion, as was experienced by [plaintiff] in the performance of his pipe fitter job duties." He concluded, as did Dr. Charko, that plaintiff's lateral epicondylitis was associated with his work. He stated:
Mr. Kowalewski repetitively performed work tasks requiring awkward postures, force, and use of his upper extremities. While performing these tasks, Mr. Kowalewski was exposed to the risk factors for WMSDs such as epicondylitis. He often pushed and pulled while applying force with awkward postures, from an extended arm position. He
also frequently had to exert force while using hand tools to perform his work tasks. He often worked in awkward postures consisting of bending, squatting and kneeling and reaching while applying force. His work involved physical strain measured as a combination of repetitive forceful work and non-neutral posture of the hands and arms. Based on my review of medical, epidemiologic and ergonomic literature, there is more than sufficient evidence of the known risk factors to associate his lateral epicondylitis with his work as a Car Repairman/Pipe Fitter.
Dr. Shinnick cited an OSHA publication that set ergonomic guidelines for the meatpacking industry, and a more general OSHA publication that identified "[f]our components of a comprehensive ergonomics program . . . as worksite analysis, hazard prevention and control, medical management, and worker training and education." He observed that an American National Standards Institute publication reported a link between risk factors and the development of musculoskeletal disorders, but "the literature does not permit threshold or maximum levels of exposure to be determined." He noted that the Association of American Railroads (AAR) has published a training manual on controlling the risk of cumulative trauma disorders and "delineated programs for designing out and/or minimizing those risk factors[.]" Dr. Shinnick stated he evaluated plaintiff's work tasks "with several ergonomic checklists and assessment tools including the AAR Checklists. . . . [and] with the Rapid Upper Limb Assessment protocol (RULA)." Dr. Shinnick reported that plaintiff's "job duties resulted in a RULA score of seven plus, which is indicative of a level high risk for injury and requiring the need for 'investigation and change immediately.'"
Dr. Shinnick did not inspect the PATH repair facility in Harrison, where plaintiff worked, nor did he observe plaintiff perform his work tasks. The expert relied in part on "previous site inspections of commuter railroad [c]ar [r]epairmen work sites and work tasks[.]" He did not weigh the tools plaintiff actually used, or conduct any other force quantifications or measurements. Nor did he investigate any controls PATH had in place.
PATH moved to bar Dr. Shinnick from testifying in conformity with his report. PATH argued that Dr. Shinnick's view that PATH violated its duty to provide a safe workplace was a net opinion. Plaintiff responded that Dr. Shinnick's opinion was grounded in the literature that recognized risk factors like those present in plaintiff's job. With regard to a standard of care, plaintiff argued that Dr. Shinnick based his opinion on the standard that an ergonomic program should have four components: a work site analysis, hazard reduction, medical monitoring and education. Plaintiff argued that PATH failed to provide plaintiff an adequate educational program.
The trial court granted PATH's motion. The court concluded:
Simply repeating an employee's description of job tasks and reciting that there are certain known risk factors such as repetitive motions and awkward positions is not sufficient. . . . [A]n ergonomics expert should perform specific scientific tests as to the plaintiff's method of performing his job, as to what reduction and length of time or a number of repetitions of performing his job would be needed to ensure that the plaintiff did not develop his cumulative trauma. Although Dr. [Shinnick] may offer an opinion about the activities of the plaintiff and the risk factors to which he was exposed, he cannot testify that plaintiff's workplace was unsafe because he had not conducted the type of study characterized by observation and measurement that is required to support such an opinion.
PATH then moved for summary judgment, arguing that absent Dr. Shinnick's report, there was no evidence to establish a standard of care that PATH allegedly breached. Plaintiff argued that even absent Dr. Shinnick's opinion, there was sufficient evidence to allow the case to reach a jury, based on Dr. Charko's opinion that plaintiff's injuries resulted from his work, and the decision to assign plaintiff pipe fitter work without the help of a partner.
The court granted PATH's motion. The court reasoned it was not sufficient for plaintiff to prove that his injuries resulted from his work. He was required to establish the standard of care that PATH was obliged to meet, and to show that PATH's breach of that standard caused plaintiff's injuries. As plaintiff failed to present such proofs, PATH was entitled to summary judgment.
Plaintiff appeals and renews the arguments he presented to the court in opposition to PATH's two motions. Plaintiff argues that Dr. Shinnick's opinion was admissible expert testimony; and even if it were not, plaintiff presented sufficient evidence to defeat PATH's motion for summary judgment.
I.
We review the governing legal principles, turning first to the standards of review that apply to the two orders on appeal. "In reviewing a trial court's evidential ruling, an appellate court is limited to examining the decision for abuse of discretion." Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008) (citation omitted) (reinstating trial court decision admitting expert opinion); see also Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 384 (2010) ("[T]he latitude initially afforded to the trial court in making a decision on the admissibility of evidence — one that is entrusted to the exercise of sound discretion — requires that appellate review, in equal measures, generously sustain that decision, provided it is supported by credible evidence in the record."). The trial court exercises discretion in determining "[t]he necessity for, or propriety of, the admission of expert testimony, and the competence of such testimony[.]" State v. Zola, 112 N.J. 384, 414 (1988), cert. denied, 489 U.S. 1022, 109 S. Ct. 1146, 103 L. Ed. 2d 205 (1989).
On appeal, an evidentiary decision should not be overturned "'unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide off the mark that a manifest denial of justice resulted.'" Brenman v. Demello, 191 N.J. 18, 31 (2007) (reviewing decision applying N.J.R.E. 403) (quoting Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)); see also State v. Feaster, 156 N.J. 1, 82 (1998) (stating an appellate court will disturb an evidentiary ruling only if there has been a "clear error in judgment" or a ruling "so wide of the mark that a manifest denial of justice resulted" (citations and quotations omitted)).
On the other hand, we review the trial court's grant of summary judgment de novo and apply the same standard as the trial court. Lapidoth v. Telcordia Tech., Inc., 420 N.J. Super. 411, 417 (App. Div.), certif. denied, 208 N.J. 600 (2011); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Pursuant to Rule 4:46-2, we "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill, supra, 142 N.J. at 540. But we apply this de novo standard of review to the summary judgment motion only after applying the more deferential abuse-of-discretion standard to the court's threshold evidentiary ruling. See Estate of Hanges, supra, 202 N.J. at 385 (distinguishing between the two standards of review, where summary judgment decision was predicated on evidentiary ruling).
Turning to the substantive principles governing the motion to bar an expert's testimony, an expert is permitted to offer an opinion regarding "scientific, technical or other specialized knowledge" if the opinion "will assist the trier of fact to understand the evidence or to determine a fact in issue[.]" N.J.R.E. 702. To satisfy the Rule, the opinion must address a matter "'beyond the ken of the average juror,'" the expert's field "'must be at a state of the art such that an expert's testimony could be sufficiently reliable,'" and "'the witness must have sufficient expertise to offer the intended testimony.'" Kemp v. State, 174 N.J. 412, 424 (2002) (quoting Landrigan v. Celotex Corp., 127 N.J. 404, 413 (1992)).
The facts or data upon which the expert relies need not be admissible in evidence "[i]f of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject[.]" N.J.R.E. 703. The corollary of N.J.R.E. 703 is the "net opinion rule." State v. Townsend, 186 N.J. 473, 494 (2006).
An expert's conclusion is considered to be a "net opinion," and thereby inadmissible, when it is a bare conclusion unsupported by factual evidence. Buckelew v. Grossbard, 87 N.J. 512, 524 (1981); see also Johnson v. Salem Corp., 97 N.J. 78, 91 (1984) (noting that "'[t]he weight to which an expert opinion is entitled can rise no higher than the facts and reasoning upon which that opinion is predicated'") (citation omitted). In other words, an expert must "'give the why and wherefore' of his or her opinion, rather than a mere conclusion." Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002) (citation omitted).On the other hand, testimony is not rendered an inadmissible net opinion "simply because it fails to account for some particular condition or fact which the adversary considers relevant." Ibid. (internal quotation marks and citation omitted).
[Creanga v. Jardal, 185 N.J. 345, 360 (2005).]
These principles apply to a claim under FELA, which authorizes an injured railroad worker to recover for injuries "resulting in whole or in part from the negligence of the railroad." 45 U.S.C.A. § 51. The remedial statute, enacted in 1908, is liberally construed to fulfill its purpose to overcome various common law barriers to an injured railroad worker's ability to recover for an injury suffered in the workplace. Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 542-43, 114 S. Ct. 2396, 2403-04, 129 L. Ed. 2d 427, 439-40 (1994). In order to establish liability under FELA, a plaintiff must prove more than an injury occurred; he or she must show the railroad was negligent. See, e.g., Huffman v. Union Pacific R.R., 675 F.3d 412, 420 (5th Cir. 2012) ("The basis of liability under FELA is not simply that an injury occur while an employee is at work but also that some negligence occurred.") (citing Gottshall, 512 U.S. at 543, 114 S. Ct. at 2404, 129 L. Ed. 2d at 440; Stevens v. N.J. Transit Rail Operations, 356 N.J. Super. 311, 319 (App. Div. 2003).
In order to establish a common law negligence claim, a plaintiff must prove four elements: a duty of care, a breach of the duty, proximate cause, and actual damages. Weinberg v. Dinger, 106 N.J. 469, 484 (1987) (citation omitted). A FELA plaintiff must generally prove these same four elements. Stevens, supra, 356 N.J. Super. at 319 (plaintiff must prove duty, breach, foreseeability and causation); see also Aparicio v. Norfolk & W. Ry. Co., 84 F.3d 803, 810 (6th Cir. 1996), abrogated in part on other grounds, Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000).
A railroad has a duty to provide a reasonably safe workplace. Urie v. Thompson, 337 U.S. 163, 178 n.16, 69 S. Ct. 1018, 1029 n.16, 93 L. Ed. 1282, 1297 n.16 (1948). "Negligence within the meaning of FELA exists if the defendant railroad 'knew, or by the exercise of due care should have known' that its conduct was 'inadequate to protect [the plaintiff] and similarly situated employees.'" Huffman, supra, 675 F.3d at 417 (quoting Urie, supra, 337 U.S. at 178, 69 S. Ct. at 1028, 93 L. Ed. at 1297).
However, FELA establishes a relaxed standard of causation, requiring proof only that the railroad's negligence "played a part — no matter how small — in bringing about the injury." CSX Transp., Inc. v. McBride, ___ U.S. ___, ___, 131 S. Ct. 2630, 2640, 180 L. Ed. 2d 637, 649 (2011) (approving model jury instruction that informs jurors that under FELA, injury "'is proximately caused by' the defendant's negligence if the negligence 'played any part, no matter how small, in bringing about or actually causing the injury'"); see also Rogers v. Mo. Pac. R.R. Co., 352 U.S. 500, 506-07, 77 S. Ct. 443, 448-49, 1 L. Ed. 2d 493, 499-500 (1957).
Federal courts have grappled with the issue of the nature and quantum of expert evidence necessary under FELA to establish a duty of care to prevent cumulative trauma or musculoskeletal disorders. For example, in Aparicio, supra, the court found that the expert demonstrated the railroad "should have known that [plaintiff] was at risk for developing an upper extremity cumulative trauma injury and that a reasonably prudent employer would have taken steps to ameliorate the risk of injury." 84 F.3d at 811. The court reviewed the basis of the expert's opinion:
Dr. Andres testified as to the risk factors accepted in the biomechanical and ergonomics community for upper extremity cumulative trauma disorders such as carpal tunnel syndrome and epicondylitis. These risk factors include sustained exertion, such as holding something for a long period of time and applying force, placing hands in positions not in line with the forearm, and being subjected to vibrations from power tools. . . . Dr. Andres also testified that an industrial employer like Norfolk & Western would learn of these ergonomic risk factors, as well as of methods of determining whether an employee was exposed to a risk of injury and methods of amelioration, through scientific and professional publications, trade journals and industry publications. Further, Dr. Andres stated that an employer like Norfolk & Western would know of the ergonomic literature through its medical department or safety person.
[Id. at 811-12.]
However, other courts have been more demanding. In Magdaleno v. Burlington Northern Railroad Company, 5 F. Supp. 2d 899 (D. Colo. 1998), the court barred an ergonomics expert from testifying that plaintiff's workplace was unsafe. The court explained the expert "did not make any detailed on-site analysis of the repair facility in operation," nor did he conduct "any study to determine the magnitude, duration, or frequency" of the identified risk factors. Id. at 904-05.
Likewise, the court in Doty v. Illinois Central Railroad, 162 F.3d 460, 462-63 (7th Cir. 1998) suggested that a detailed analysis of the plaintiff's work is essential.
Nor do we think . . . the report of Dr. Gary Herrin, was sufficient to establish that Doty's particular workplace was unsafe. That report merely indicated that by 1985, "there was a sufficient number of studies in the scientific literature linking occupational stress to carpal tunnel syndrome that a knowledgeable health and safety professional should have known of the risks." That is a general opinion that is in no way linked to Doty's particular workplace. Indeed, Doty admits that his expert did not conduct a study of his particular workplace or of the type of tools that he used in his work for Illinois Central. In fact, Doty has pointed us to no place in the record that would even establish what those tools were. Without some link to Doty's particular workplace or the particular types of tools that he was required to use, Dr. Herrin's testimony, even if admissible under Rule 702, is far too general to permit a jury to conclude that Doty's particular workplace was unsafe.
Another court has found the mere citation of a NIOSH and CDC study on musculoskeletal disorders — the same one Dr. Shinnick cited — was insufficient to establish a specific duty of care. Lewis v. CSX Transp., Inc., 778 F. Supp. 2d 821, 838 (S.D. Oh. 2011) (noting that plaintiff cited "to no expert testimony explaining the significance of the NIOSH/CDC report to the particular facts of this case" and the report did not address the risk factors associated with plaintiff's particular job). "[T]here is no evidence that the steps CSX took to address carpal tunnel syndrome fell below the standard of care or that there were any ameliorative measures, such as specific exercise programs, that CSX could have but did not implement." Id. at 843; see also Tootle v. CSX Transp., Inc., 746 F. Supp. 2d 1333, 1338 (S.D. Ga. 2010) (noting there was no evidence other workers in the same position suffered plaintiff's injury, stating "[t]estimony that does not have some link to Plaintiff's specific job is 'far too general to permit a jury to conclude that [Plaintiff's] particular workplace was unsafe.'" (quoting Doty, supra, 162 F.3d at 462-63)).
With respect to the issue of causation, the relaxed standard for proving causation under FELA does not alter the rules governing the admissibility of expert opinion. Claar v. Burlington N. R.R. Co., 29 F.3d 499, 503-04 (9th Cir. 1994) (stating that the relaxed burden does not mean "that in FELA cases courts must allow expert testimony that in other contexts would be inadmissible"). In Stasior v. National Railroad Passenger Corporation, 19 F. Supp. 2d 835 (N.D. Ill. 1998), the court qualified Dr. Shinnick as an expert, but concluded that he had not adequately linked risk factors with the plaintiff's actual experience, nor had he reliably determined that the risk factors caused the plaintiff's injury. Applying Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), the court held:
Our Court has not adopted the Daubert test, now incorporated in F.R.E. 702. See Kemp v. State, 174 N.J. 412, 424 n.3 (2002). Daubert adopted a more relaxed standard of scientific reliability than the generally accepted reliability standard expressed in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), which is generally followed in New Jersey. See State v. Harvey, 151 N.J. 117, 169-70 (1997) (applying Frye to criminal cases). However, our Court has also adopted a less stringent test for admitting scientific evidence in toxic tort cases. Ibid. (citing Landrigan, supra; Rubanick v. Witco Chem. Corp., 125 N.J. 421 (1991) ).
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[Dr. Shinnick's] actual testimony is not reliable under Daubert because he has not subjected his opinions to the scientific method. Essentially, Dr. Shinnick "identified" the existence of risk factors and then concluded that these risk factors contributed to Stasior's CTS [carpal tunnel syndrome] without performing any scientific tests or comparing the data he collected to scientific or epidemiological studies conducted by other ergonomists. Dr. Shinnick never observed the workstation Stasior used in 1991 and before, and he made
no attempt to measure the awkward posture and repetition which are allegedly present at Stasior's current workstation in order to extrapolate what her pre-1991 conditions were like. . . . Dr. Shinnick simply assumes, without citing any corroborating authority, that because Stasior allegedly was not trained in the proper use of her equipment, the risk factors of awkward posture and repetition must have been present at Stasior's workstation in 1991 and before. . . . While Dr. Shinnick performed functional capacity and grip tests on Stasior, he does not cite any peer-reviewed scientific or epidemiological studies tying the results of his tests to the conclusion that awkward posture and repetition contributed to Stasior's CTS and tendonitis.
[Stasior, 19 F. Supp. 2d at 852.]
The court distinguished between an employer's interest in minimizing risk factors that create the possibility of cumulative trauma disorders, and "the analysis required to determine specific causes of injuries[.]" Ibid. "Because Dr. Shinnick [did] not test his causation opinion in accordance with the scientific method, the court holds that his testimony is not reliable under Daubert and therefore is inadmissible." Ibid.
The court noted that Dr. Shinnick failed to cite any "specific epidemiological or scientific studies" to support his conclusion that the risk factors caused the plaintiff's injury. Id. at 853. The court faulted Dr. Shinnick for failing "to cite any studies from 1991 or before showing that the degree of posture, repetition and force at Amtrak's [facility] was ergonomically unsafe. Therefore, it would be unreasonable to expect Amtrak to have foreseen that the workstation it provided Stasior would have contributed to her CTS or chronic tendonitis." Ibid.
By contrast, where an expert conducted detailed measurements of a worker's tasks, and performed a differential diagnosis that excluded other possible causes, the expert's opinion that injuries resulted from ergonomic risk factors was admissible. Hardyman v. Norfolk & W. Ry. Co., 243 F.3d 255, 266 (6th Cir. 2001) (reversing trial court and distinguishing Magdaleno, supra, and Stasior, supra, because the Magdaleno expert did not conduct on-site inspections, and the Stasior expert did not cite epidemiological studies connecting CTS to her low-force, low-repetition job).
II.
Applying these standards, we discern no clear error in the trial court's determination to preclude Dr. Shinnick from testifying that the PATH workplace was unsafe. We note the court did not bar Dr. Shinnick from offering "an opinion about the activities of the plaintiff and the risk factors to which he was exposed[.]" However, as observed by the trial court, he could not "testify that plaintiff's workplace was unsafe because he had not conducted the type of study characterized by observation and measurement that is required to support such an opinion."
Dr. Shinnick's opinion is a net opinion regarding both the standard of care that PATH was obliged to meet, and the conclusion that the breach of that standard caused plaintiff's injury. With respect to the standard of care, Dr. Shinnick opined that PATH "did not meet the standards for an adequate ergonomic work safety program" because PATH allegedly did not perform a "work task analysis," "did not implement adequate hazard prevention and control measures," and did not adequately monitor, train, and educate workers to reduce the risk of injury. However, Dr. Shinnick did not describe the standard work safety program in any detail, nor did he demonstrate that it was generally accepted or reasonable.
Dr. Shinnick referred to an AAR checklist, but did not describe it or explain the basis for its promulgation. He scored plaintiff's job duties according to a "Rapid Upper Limb Assessment protocol," and found a "high risk for injury," but he did not describe the protocol, nor did he assert it was supported by any reliable empirical research. By contrast, Dr. Shinnick conceded "the literature does not permit threshold or maximum levels of exposure to be determined." He concluded that PATH breached the duty to provide a safe workplace without actually inspecting the workplace, and the manner in which plaintiff and similarly situation workers were required to perform their jobs.
With respect to causation, Dr. Shinnick concluded that PATH's failure to meet the aforesaid standard of care for providing a safe workplace exposed plaintiff to risk factors for musculoskeletal disorders. Dr. Shinnick does not expressly state that the allegedly unsafe workplace caused plaintiff's injuries, as opposed to causing the risk of injury. However, even the conclusion that PATH's alleged breach of the standard exposed plaintiff to work safety risk factors lacks the "why and wherefore" of an admissible expert opinion.
Dr. Shinnick did not describe how the adoption of the alleged standard would have altered plaintiff's actual work duties. Although FELA imposes a relaxed standard of causation, Dr. Shinnick did not provide a scientific basis for concluding that changes in PATH's workplace, to conform to the alleged standard, would have prevented his injuries in the slightest degree. Dr. Shinnick failed to observe plaintiff or to measure the nature of his work. He does not state how plaintiff would have performed his job differently had he received the monitoring, training and education Dr. Shinnick claimed was lacking. Nor does he provide any empirical or scientific basis for concluding that performing the job differently would have prevented his injury. He performed no analysis of the repetitions performed, the weight of tools actually used, and the force applied. He concluded that plaintiff worked in awkward postures but did not observe, measure, or quantify them. In sum, we find no basis in the record to disturb the trial court's discretionary determination to limit Dr. Shinnick's testimony.
Turning to the court's grant of summary judgment, we agree with the trial court that absent Dr. Shinnick's opinion, plaintiff failed to present sufficient evidence to support his claim that PATH was negligent and that its negligence caused his injury. As we have noted, FELA is not an insurance statute. Despite its remedial purpose, a plaintiff asserting a FELA claim must prove more than the fact of injury. He must prove that negligence caused the injury.
Plaintiff argues that the record evidence, including Dr. Charko's opinion, sufficed to show that plaintiff's injury resulted from his work. However, negligence is not presumed. Buckelew, supra, 87 N.J. at 525. Even conceding that plaintiff's work caused his elbow injuries — although Dr. Charko's opinion lacked the detail of an acceptable differential diagnosis — that fact falls short of establishing that PATH breached its duty to provide a safe workplace, and that the failure to provide a safe workplace caused plaintiff's injury.
Other courts agree that admissible expert testimony is essential to establish the standard of care or causation, where the plaintiff seeks damages for a particular musculoskeletal disorder that allegedly resulted from cumulative trauma. See Huffman, supra, 675 F.3d at 425-26 (affirming summary judgment, concluding that absent expert testimony or other evidence, record lacked proof that plaintiff's work tasks caused osteoarthritis); Myers v. Ill. Cent. R.R. Co., 679 F. Supp. 2d 903, 916-17 (C.D. Ill. 2010) (granting summary judgment after excluding expert opinion), aff'd, 629 F.3d 639, 643 (7th Cir. 2010); Stasior, supra, 19 F. Supp. 2d at 853 ("Because the expert testimony proffered by Stasior is not admissible[,] . . . Stasior has failed [to] show that there exists a genuine issue of material fact regarding the causation and foreseeability elements of her FELA claim.").
In sum, the trial court properly granted summary judgment to PATH, dismissing plaintiff's complaint.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION