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McNeal v. National Railroad Passenger Corp.

August 15, 2008

BOBBY JEAN MCNEAL, PLAINTIFF,
v.
NATIONAL RAILROAD PASSENGER CORP., DEFENDANT.



The opinion of the court was delivered by: Norman A. Mordue, Chief U.S. District Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff was employed by the defendant railroad company ("Amtrak") and has sued pursuant to the Federal Employers' Liability Act ("FELA"), 45 U.S.C. § 51 et seq., for an alleged work-related injury. Defendant has moved for summary judgment on the ground that there is no evidence that Amtrak breached its duty to provide her with a safe place to work. Plaintiff opposes defendant's motion.

II. FACTUAL BACKGROUND

The relevant facts in this case are as follows: Plaintiff began working for Amtrak in 1990 as a ticket agent. As a ticket agent, plaintiff's work consisted of "doing ticketing, baggage, assisting customers, [and] cleaning up at night." After 90 days with the company, plaintiff changed jobs and began working as a coach cleaner. As a coach cleaner, plaintiff testified that she performed the following activities in furtherance of her duties:

Vacuum the trains, cleaning the vestibules, cleaning the seat trays, emptying the ashtrays, cleaning out the bathrooms . . . washing the exterior of the train, cleaning the buff, the food car, cleaning off the steps, cleaning out the engine room, pulling trash, restocking everything . . . dusting and cleaning the window[s].

In the course of cleaning cars, she had to carry a vaccum which she thought weighed "five to seven pounds," a bucket of soapy water which was approximately 12 inches high and 10 inches in circumference. Plaintiff also carried trash bags full of garbage which weighed anywhere from "five to ten pounds."

In 1999, plaintiff changed jobs to work as a carman. As a carman, she worked on the exteriors and interiors of train cars. Plaintiff described her exterior duties as follows:

I was running carman. I would be a pitman, change brake shoes and inspections. I put inspections, so you would have to change the brake shoes, whatever is broken under there - if anything was broken, a main reservoir or whatever, you would have to fix it. Making sure that everything was running correctly. Again, it was inspection. And sometimes we would have to cut a car out or cut a car in and we would have to pull the 480 cables and put them back on.

If something was wrong with a car and you couldn't use it, you would have to cut it out. if they needed to add one or put one in between, you'd have to cut a car in. . . . You'd have to, again, put the cables in or take them out, inspect the car, pull the pin for the car to get connected to the other part of the train, and pull the pin again for it to take it away, make sure everything was running correctly on the train inside and out.

Insofar as her interior duties, plaintiff testified as follows:

Interiors is you got to make sure all the doors are working, the steps are all working, check the fire extinguishers, check the luggage racks, check all bi-parting doors. . . . Make sure everything is in its place. If a C-tray or a seat or anything was broken, you'd have to fix it. Make sure all hammers were in place. Well, big sledgehammers, yes. They are to stay on the train at all times in case like there's a storm or something, you want to be able to get near it and a crow bar also. . . . Dumping the crappers, the bathrooms. . . . [Y]ou would have to pull the top off the bathroom and look, go in there, put a hose it and get off the train and stand on this thing. Its like a step thing with three or four step ladders on it. It was iron. And put the hose underneath and pull the lever to let the stuff come out, the liquids out of the toilets. And then you count up to I think it was 35, and put the water back in and put the seat back on the toilet afterwards.

During the winter months, if plaintiff was assigned to 'interiors," she also had to ensure the train steps were clear of snow and ice using "shovels or whatever" to clean them off. Occasionally, there were other jobs for plaintiff to do as a carman including replacing train windows, windshields and windshield wipers and changing engine flood lights.

Between 1995 and 2000, plaintiff missed approximately three years of work for: 1) injuries related to her job for which she filed two FELA actions against Amtrak; and 2) two unrelated medical conditions. On July 18, 2000, at age 48, plaintiff underwent surgical reversal of a tubal ligation. Two months later, plaintiff saw her primary care physician, Dr. Dhanyamraju, and complained of lower abdominal pain. Dr. Dhanyamraju's 9/23/00 office note*fn1 states that plaintiff was advised to go to the emergency room at Memorial Hospital for evaluation of her abdominal pain. There is no indication in the record of whether plaintiff did so. On February 21, 2002, plaintiff again saw Dr. Dhanyamraju and complained of right lower abdominal pain and a large mass in the same area which had grown larger over the previous months. Upon examination, Dr. Dhanyamraju noted a large ventral hernia in the right lower quadrant of plaintiff's abdomen. He recommended that plaintiff go immediately to the emergency room for evaluation and treatment.

On February 27, 2002, plaintiff underwent surgical repair of a "large incisional hernia" with Composix mesh by Barbara Brazis, D.O.. During the surgery, Dr. Brazis "reopened" the transverse (Pfannenstiel) incision from plaintiff's previous open abdominal surgery. Upon dissecting down to the fascia, Dr. Brazis observed a "large hernia sac at the right lateral aspect of the incision." Dr. Brazis encountered "many adhesions" in "freeing the small bowel from the incision and the hernia sac." In the course of repairing the hernia, Dr. Brazis perforated plaintiff's bowel. Subsequently, on March 12, 2002, Dr. Brazis resected plaintiff's small bowel, removed infected surgical mesh and drained an intra-abdominal abscess. Plaintiff later sued Dr. Brazis for medical malpractice as a result of the bowel perforation which led to various infectious complications.

A little over one year later, plaintiff was referred by Dr. Dhanyamraju to Dr. Isenberg, a surgeon, for "chronic pain" associated with her abdominal surgery incision. In a letter to Dr. Dhanyamraju dated March 20, 2003, Dr. Isenberg noted that plaintiff underwent a "tubal ligation" and more recently an "open tubal reversal three years ago." In a letter to Dr. Dhanyamraju dated August 5, 2003, regarding a follow-up visit, Dr. Isenberg concluded "[t]his incision resulted in and[sic] incisional hernia." Based on review of her abdominal CAT scan, which showed "inflammatory changes in the region of this incision," Dr. Isenberg "suspect[ed" plaintiff had a hernia. Dr. Isenberg recommended that he perform surgery to repair the hernia and plaintiff agreed. Plaintiff underwent surgery for repair of a recurrent incisional hernia on September 8, 2003.

There are no additional medical records in evidence concerning plaintiff's care or treatment after the surgery by Dr. Isenberg on September 8, 2003. In opposition to defendant's motion, however, plaintiff submitted a letter from Hany Abdel, D.O., plaintiff's medical causation expert, who recounted additional portions of plaintiff's medical history. Since no party has objected to his factual recitation, the Court presumes it is correct. According to the history stated by Dr. Abdel, plaintiff saw an infectious disease specialist after the September 2003, surgery who diagnosed her with "an infected mesh." On July 14, 2004, Dr. Brian Valerian performed an exploratory laproscopy on plaintiff to remove the infected mesh from her September 2003, hernia repair. In December 2004, plaintiff returned to work even though she testified that the "Amtrak doctor" who examined her for her "back to work physical" said she should not yet go back to work due to the pain she was still having in her abdominal region. When she returned to work in December 2004, it appears that she was "demoted" to the position of coach cleaner "because of cutbacks."

In January 2005, Dr. Valerian discovered that plaintiff had another incisional hernia, this one at the "superior aspect of the midline incision extending all the way down to the level of the umbilicus." In March 2005, Dr. Valerian, along with Dr. Joshua King, a plastic surgeon, repaired the midline ventral hernia. Plaintiff alleges that her recurring incisional hernia condition was caused by the negligence of the defendant railroad in providing her with an unsafe place to work. Specifically, in sworn answers to interrogatories, plaintiff stated that her "condition occurred over the course of time due to the exposure to repetitive micro-trauma." Further, plaintiff averred that she "[could]not pinpoint the distinct condition which caused her injury due to the fact that the underlying causation was cumulative trauma." However, plaintiff affirmed she would "supply Defendant with an ergonomic report which will outline the stressors that Plaintiff was exposed to and that may be considered as causation for her injuries."

In response to the question of what she thought caused her injury or condition, plaintiff answered as follows:

Not enough help. I believe Amtrak is very understaffed, and I believe that the train should be modernized. I think they should be updated. . . . For one thing, like especially in the winter when doing the steps they should have some kind of device or something, a heater or something, to help melt it instead of you, as a person, with shovels trying to lift all this up. And I believe if they had something like say something was wet or something, get heat on it and it would melt it automatically, you wouldn't have to go through the hassle of trying to use so much labor of make it work correctly because you're doing it yourself. I mean there's been so many times, I got some papers at home, about five accident reports, why I fell and broken my freaking neck and never even put in a claim. Pictures of all black and blue, trying to do it all. It just needs updating. That's all. . . . And even when you were dumping the train, that whole pipe is - they should have some kind of a device there. You have to take the hammer and ...


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