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ALEXIS ZAROW-SMITH v. NEW JERSEY TRANSIT RAIL OPER

January 23, 1997

ALEXIS ZAROW-SMITH, Widow of CRAIG D. SMITH and Executrix of the Estate of CRAIG D. SMITH, Plaintiff,
v.
NEW JERSEY TRANSIT RAIL OPERATIONS, INC., Defendant.



The opinion of the court was delivered by: PISANO

 JOEL A. PISANO, U.S. MAGISTRATE JUDGE:

 A civil jury trial was conducted before the undersigned in the above-captioned matter, commencing on October 29, 1996 and ending on November 8, 1996. At the conclusion of the presentation of the evidence and argument, the jury returned a verdict for plaintiff in the amount of $ 44,934.00. On December 3, 1996, judgment was entered in that amount. *fn1"

 This Court is now asked to decide plaintiff's post-trial motion to alter and amend the judgment, pursuant to Federal Rule of Civil Procedure 59(e), and her motion for a new trial on damages or, in the alternative, for a new trial generally, pursuant to Federal Rule of Civil Procedure 59(a). Defendant filed opposition to plaintiff's motions, and the Court decides the matter without oral argument, pursuant to Federal Rule of Civil Procedure 78.

 BACKGROUND

 This is a wrongful death case brought under the Federal Employer's Liability Act, 45 U.S.C. § 51 et seq., ("F.E.L.A.") against New Jersey Transit Rail Operations ("N.J.T."). The decedent, Craig Smith, who died of lung cancer in August, 1995, was a bridge and building mechanic with N.J.T. A principal work place of the decedent was the Register Building in Red Bank, New Jersey, where he worked from 1986-1990. Evidence was offered at trial that asbestos was present in the Register Building during the years the decedent worked there.

 N.J.T. then offered proof that Craig Smith was negligent by smoking cigarettes and that his smoking was a proximate cause of his illness and death. N.J.T.'s position at trial was that the railroad provided Craig Smith with a reasonably safe place to work, the plaintiff failed to prove that Craig Smith was exposed to harmful levels of asbestos in the workplace, and she failed to prove that Craig Smith's lung cancer was caused by his asbestos exposure.

 Craig Smith smoked between a half pack and a pack of cigarettes a day from the mid 1960's until 1993. He became ill in the late spring of 1994 and died in August of 1995 of inoperable lung cancer. He was 48 years old. Smith was survived by the plaintiff, their two-year-old daughter, and two adult children from previous marriages.

 The jury returned a verdict for the plaintiff, finding that N.J.T. was negligent and that its negligence was a proximate cause of the illness and death of Craig Smith, but that Craig Smith, by smoking cigarettes, was also guilty of contributory negligence. The jury calculated plaintiff's total damages to be $ 898,665.00 *fn2" , but then found that 95 percent of the cause of Craig Smith's illness and death was attributable to his cigarette smoking, reducing the total damages award to $ 44,934.00.

 FEDERAL EMPLOYER'S LIABILITY ACT

 The jury found N.J.T. to be liable under the F.E.L.A. The pertinent provision of the law reads as follows:

 
Every common carrier by railroad while engaging in commerce between and of the several States or Territories ... shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in the case of the death of such employee, to his personal representative for the benefit of the surviving widow and children of such employee ... for such injury or death resulting in whole or in part from the negligence of any of the officers, agents or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its appliances, machinery, roadbed, works, or other equipment.

 45 U.S.C. § 51. Injury under the F.E.L.A. need not be the result of any specific occurrence but can consist of actions over a period of time including industrial or occupational disease or illness caused by exposure to a toxic substance. The claim is established if the plaintiff can show that negligence of the defendant played any part, however small, in the decedent's illness. Mitchell v. Missouri-Kansas-Texas R. Co., 786 S.W.2d 659, 661 (Tex.), cert. denied, 498 U.S. 896, 112 L. Ed. 2d 205, 111 S. Ct. 247 (1990). Isgett v. Seaboard Coast Line R. Co., 332 F. Supp. 1127 (D.C.S.C. 1971).

 MOTION FOR A NEW TRIAL

 Standard Under Rule 59(a)

 Motions for new trials are governed by Federal Rule of Civil Procedure 59(a), which provides in pertinent part:

 
A new trial may be granted to all or any of the parties and on all or part of the issues in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States.

 Analysis

 Plaintiff seeks a new trial on the following grounds: (1) the Court erred in instructing the jury to apportion damages; (2) the Court erred in instructing the jury that N.J.T.'s failure to perform a lateral chest x-ray during a 1993 company physical, and its failure to read the 1993 posterior-anterior ("p-a") chest x-ray correctly, were not negligence as a matter of law; and (3) the Court erred in failing to charge the jury that Craig Smith's assumption of the risk of smoking cigarettes was not available as a defense under the F.E.L.A.

 . Apportionment of damages

 Citing Prosser and Keeton's Law of Torts and the Restatement (Second) of Torts, the plaintiff first claims that the decedent's injury is indivisible and incapable of apportionment. This argument, however, ignores language in the F.E.L.A. that specifically allows apportionment. The statute provides that "the fact that an employee may have been guilty of contributory negligence shall not bar recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee." 45 U.S.C. § 53.

 The threshold issue thus becomes whether the decedent was "guilty of contributory negligence" because of his cigarette smoking so that it was proper for the jury to apportion damages under 45 U.S.C. § 53. Contributory negligence under the statute is "the doing of some act or an omission by the employee amounting to a want of ordinary care for his own safety, which is the proximate cause of his injury though concurrent with some negligent act of the employer." Chesapeake & Ohio Ry. Co. v. Richardson, 116 F.2d 860, 863 (6th Cir.), cert. denied 313 U.S. 574, 85 L. Ed. 1531, 61 S. Ct. 961 (1941). No reported F.E.L.A. case addresses whether an injured employee's smoking can be contributory negligence that permits apportionment of damages under the statute.

 In a products liability context, however, cigarette smoking has been held to be negligent behavior. Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 562 A.2d 1100, 1118 (Conn. 1989) ("We conclude that there is no reason to prohibit the use of one's smoking history in determining comparative responsibility in this case involving asbestosis."). Ingram v. Acands, Inc., 977 F.2d 1332, 1342 (9th Cir. 1992) (finding that the evidence presented of the "synergistic effect of cigarette smoke and asbestos in increasing [plaintiff's] cancer risk" was sufficient to permit submitting the issue of comparative negligence to the jury). In re Asbestos Litigation Pusey Trial Group, 669 A.2d 108, 111-112 (Del. 1995) (holding that it was error not to permit a jury instruction on the decedent's contributory negligence due to his cigarette smoking). Hao v. Owens-Illinois, Inc., 69 Haw. 231, 738 P.2d 416, 418 (Haw. 1987). Jones v. Owens-Corning Fiberglas Corp., 69 F.3d 712, 720 n. 9 (4th Cir. 1995) (concluding that the defense of contributory negligence is "clearly" available when the defendant can demonstrate that the decedent had been warned about the synergistic effects of asbestos exposure and cigarette smoking). *fn3"

 This Court finds the logic of these cases to be persuasive and concludes that smoking can constitute negligence in a F.E.L.A. case. Thus, whether a jury instruction on contributory negligence should be given depends on the evidence presented at trial. Here, expert testimony on behalf of both plaintiff and defendant and videotaped deposition testimony of the decedent put the fact question of Craig Smith's contributory negligence properly before the jury. For example, Dr. Segall, the decedent's treating physician, testified as follows:

 
Q Doctor, do you have an opinion, based on reasonable medical certainty, as to the cause or causes of the adenocarcinoma which you found?
 
A Yes.
 
Q And would you tell the Court and the Jury what your opinion is?
 
A I've got that the cause of cancer in the lung had multiple causes. Some of it may have been genetic, some of it was related to his moderate cigarette smoking, and in part, and to a great deal, it was due to the exposure to asbestos. So it was multifactorial: heredity, smoking, and the toxic substance, asbestos.
 
...
 
In 1985, the United Nations World Health Organization published a paper by the International Agency for Research in Cancer. They studied smokers and non-smokers related to asbestos and non-asbestos. What they found was if a person didn't smoke and they didn't work with asbestos, the incidence of lung cancer was 11 per hundred thousand. That gave them what they call a ratio of one. If a person didn't smoke but worked with asbestos, then the incidence was 58 instead of 11. If they smoked but didn't work with asbestos, the incidence was 122. But if, as in Mr. Smith's case, they were smoking and exposed to asbestos, the score went to 600. So instead of having a score of 11, the score was 600. The chances of dying, what they call the mortality ratio, went from 1 to 53. So in other words, his chances of dying were 50 times increased because he smoked and worked with asbestos. If he had smoked alone, and had no asbestos exposure, instead of the score being 53, it would be 11. So, in other words, the asbestos exposure increased the chances of his dying from cancer by five-fold.

 (Segall Direct Testimony at 114, 116-117.) A defense expert, Dr. Karetzky, disputed the testimony given by Dr. Segall:

 
Q Have studies been done to determine whether or not lung cancer caused by asbestos can come about with only a very brief period of exposure to asbestos?
 
A Yes.
 
Q What have those studies shown, Doctor?
 
A Almost invariably you always have a latency period from the initial time of exposure of at least 20 years, more often as much as 30 to 50 years.
 
Q And have these been well documented studies by people who have specialized in doing studies of asbestos workers?
 
A Yes.
 
Q Has there ever been a suggestion that a person could be employed, such as Mr. Smith in 1986, have some asbestos exposure, and then develop ...

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