NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically Argued November 9, 2012
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).
Before Judges Messano, Lihotz and Ostrer.
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.
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.
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.
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:
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.
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 ...