sample specimens of the ticks were sent for medical testing.
The final fact witness was Dean Klimpel, safety officer for the engineering department. Klimpel testified that during the LIRR electrification project exposure to ticks was discussed at meetings. Employees were instructed to wear light colored clothing, wear high-top boots, and check for ticks, including the American brown dog tick.
He recalled that deer ticks were discussed at meetings sometime beginning about 1987 and continuing thereafter. On the subject of spraying, Klimpel testified that there had been spot applications on request since 1984; but there did not appear to be any other program for spraying, aside from the high rail spraying discussed earlier. Klimpel produced a pamphlet distributed in 1982 on the American brown dog tick; and also testified that the LIRR did not cut weeds and tall grass within approximately five yards of the signal equipment; and that the LIRR did not have a licensed contractor spray pesticides around the signal equipment.
Klimpel also produced a pamphlet, Defendant's Exhibit B previously referred to, and a poster, Defendant's Exhibit C previously referred to. He testified that high grass and high weeds could be controlled by manual spraying, but as noted above, there appears to have been no overall program for this type of spraying.
There was discussion between Klimpel and Swayne in 1988 or 1989 about spraying around signal equipment, and the LIRR began spraying around signal equipment in or about May 1989. As noted above, there were spot hand applications previously at certain locations. However, as has been noted, no records were produced at trial with regard to these hand applications.
The remaining testimony was derived from medical witnesses, including doctors Dattwyler, Burrascano and Gelinas. Drs. Dattwyler and Burrascano testified that in their opinion the four plaintiffs contracted Lyme Disease as the result of having been bitten by deer ticks while working at locations along the LIRR right of way in Suffolk County.
They testified that Lyme Disease is a condition which may or may not be cured and which may result in permanent disability. Dr. Burrascano, testifying with respect to Grano, indicated "I don't think he will completely come back to normal" and that Grano may require future treatment.
A similar prognosis was made by the doctors with respect to plaintiffs Buchbinder and Raccioppi. As noted above, plaintiff Cortelyou appears to have recovered.
The defense called Dr. Kevin M. Cahill, who testified concerning a heightened awareness of Lyme Disease from the early 1980's on. He testified that in his opinion it was impossible to be certain where Lyme Disease was acquired. He felt it was most likely acquired around homesites. In his opinion in an endemic area, unless you know where you have been bitten, you cannot tell with certainty where the Lyme Disease was acquired.
In a case such as this, the Court agrees that one cannot be certain, but the plaintiffs' burden is to prove that something is more probable than not. In Dr. Cahill's opinion, Grano might have Lyme Disease. As to Buchbinder, Dr. Cahill stated there was no evidence that he positively had Lyme Disease. As to Raccioppi, Dr. Cahill was unable to say whether he had Lyme Disease. And as to Cortelyou, in Dr. Cahill's opinion, he could have had Lyme Disease. The Court would note that Dr. Cahill, who did not examine any of the four plaintiffs, was unable to contradict the testimony of plaintiffs and their doctors that each of the plaintiffs had contracted Lyme Disease.
In sum, the Court finds that all four plaintiffs contracted Lyme Disease as the result of having been bitten by deer ticks while working for the LIRR at various sites in Suffolk County, between the summer of 1987 and 1989.
CONCLUSIONS OF LAW
This is an action under Federal Employers' Liability Act ("FELA") 45 U.S.C. §§ 51-60. This Court has jurisdiction over the subject matter and likewise has personal jurisdiction over the parties.
The FELA requires an employer to provide its employees with a reasonably safe place to work, and this includes a duty to maintain and inspect work areas. The scope of this ongoing duty is clear: "An employer breaches its duty to provide a safe workplace when it knows or should know of a potential hazard in the workplace, yet fails to exercise reasonable care to inform and protect its employees." Gallose v. Long Island R.R., 878 F.2d 80, 84-85 (2d Cir. 1989) (citing DeChico v. Metro-North Commuter R.R., 758 F.2d 856, 862 (2d Cir. 1985); Lindauer v. New York Central R.R., 408 F.2d 638, 640 (2d Cir. 1969)).
While there is a considerably more relaxed standard of proof for determining negligence in FELA cases, Rogers v. Missouri Pacific R.R., 352 U.S. 500, 506, 1 L. Ed. 2d 493, 77 S. Ct. 443 (1956), and a strong federal policy in favor of letting the trier of the fact decide these cases, O'Hara v. Long Island R.R., 665 F.2d 8, 9 (2d Cir. 1981), the FELA does not make an employer strictly liable for workplace injuries, and therefore requires that employees must at least present some evidence that could support a finding of negligence. Id.
Plaintiffs are also required to prove the traditional common law elements of negligence: duty, breach, foreseeability, and causation. Robert v. Consolidated Rail Corp., 832 F.2d 3, 6 (1st Cir. 1987).
The essential element of reasonable foreseeability in FELA actions requires proof of actual or constructive notice to the employer of the defective condition that caused the injury. See Gallick v. Baltimore & O.R.R., 372 U.S. 108, 9 L. Ed. 2d 618, 83 S. Ct. 659 (1963). See also Gallose v. Long Island R.R., 878 F.2d 80, 85 (2d Cir. 1989) ("The catalyst which ignites [the duty to provide a safe workplace] is knowledge, either actual or constructive.").
In this case, the LIRR was negligent due to its failure to provide plaintiffs with a reasonably safe place to work.
The LIRR breached its duty to maintain and inspect work sites so that these areas might be reasonably safe for employees assigned to work there. In the instant case, the railroad knew or should have known by the summer of 1987 of the tick infestations and of the risk of infection by what are commonly called deer ticks which transmit Lyme Disease.
The railroad had a duty to its employees to provide a safe place to work; it breached that duty by failing to provide a safe workplace; and it was foreseeable that the employees would be bitten by ticks and thereafter infected with Lyme Disease.
Plaintiffs established causation by a preponderance of the evidence, although not to a certainty. All four plaintiffs were assigned to work in tick infested areas, for the most past on eastern Long Island, and within weeks or months of working there, manifested symptoms of Lyme Disease. All were subsequently diagnosed as having Lyme Disease. The Lyme Disease contracted by all four plaintiffs was caused by their working in unsafe areas where they were doing their jobs, as they were required to do, in connection with their employment by defendant LIRR.
None of the plaintiffs claims an out-of-pocket loss, except for Buchbinder who sustained an out-of-pocket loss in the amount of $ 5,000. Each plaintiff has a claim for past and future pain and suffering, with the exception of Cortelyou, who appears to have recovered and whose claim is limited to past pain and suffering.
The Court makes the following awards to plaintiffs Grano, Buchbinder and Raccioppi for their past and future pain and suffering which was proximately caused by their having contracted Lyme Disease: Louis J. Grano, $ 225,000; Herbert Buchbinder, $ 140,000, plus $ 5,000 to compensate Buchbinder for his out-of-pocket expense; and Sam Raccioppi, $ 160,000. In addition, the Court awards Pieter V. Cortelyou $ 35,000 for past pain and suffering.
On April 5, 1993, the Clerk entered judgment in favor of plaintiff Louis J. Grano in the amount of $ 225,000; in favor of plaintiff Herbert Buchbinder in the aggregate amount of $ 145,000, which includes Buchbinder's out-of-pocket loss of $ 5,000; in favor of the plaintiff Sam Raccioppi in the amount of $ 160,000; and in favor of plaintiff Pieter V. Cortelyou in the amount of $ 35,000, together with their costs in the action.
Dated: New York, New York
April 8, 1993
Robert J. Ward
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