United States District Court, S.D. New York
Ira M. Maurer, Esq., The Maurer Law Firm, PLLC, Fishkill, NY, for the Plaintiff.
Jose R. Rios, Seth J. Cummins, General Counsel, New York, NY, for the Defendant.
OPINION AND ORDER
DENISE COTE, District Judge.
Joseph Kendall ("Kendall") brings this action pursuant to the Federal Employers' Liability Act ("FELA"), 45 U.S.C. § 51 (2012), alleging that he suffered certain occupational injuries while employed by Metro-North Commuter Railroad ("Metro-North"). Metro-North has moved for summary judgment, based in large part on a Daubert motion to preclude the testimony of Kendall's expert, Dr. Stephen J. Morrissey ("Dr. Morrisey"). For the following reasons, the summary judgment motion is denied, and the Daubert motion is denied without prejudice to renewal as a motion in limine.
The following facts are undisputed or taken in the light most favorable to the plaintiff. Kendall has worked for Metro-North since 1983. In this suit, Kendall claims that, during the course of that approximately 30-year employment, he has suffered two injuries in his hands - (1) carpal tunnel syndrome in both hands and (2) trigger fingers as to most of his fingers - and that these injuries were caused, at least in part, by Metro-North's negligence in failing to provide for a reasonably safe workplace.
From 1983 to 2013, Kendall held the following roles at Metro-North: ironworker, carpenter, ironworker foreman, carpenter foreman, heavy equipment foreman, and Campbell Hall foreman. In all of these roles excluding heavy equipment foreman (a position Kendall held for only five years), Kendall worked with a variety of power tools. While the full list of these power tools is extensive, it includes jackhammers, Hilti drills and shooters (the latter of which are described by Kendall as explosivepowered nail guns), "helldogs" (which are used to punch rivets out of holes), gas-powered chop saws for cutting concrete, and chainsaws.
For the majority of his tenure at Metro-North, Kendall worked with these power tools every day. Some of these power tools, specifically the jackhammers and the Hilti drills, sent very strong vibrations into Kendall's hands for many hours each day. These and other power tools, such nail guns, required Kendall to continuously grip or squeeze the device. Additionally, such squeezing was also involved in completing certain tasks involving other tools, such as using pliers to wire fences. Fence installation was a primary task of ironworkers; Kendall would spend weeks installing a section of fence at a time. Most significantly for present purposes, Kendall's hands were exposed to these vibrations and were engaged in periods of continuous squeezing even when he held the role of foreman and not just worker.
On multiple occasions, Kendall requested specific equipment that he believed would make the work environment safer and his work less physically demanding. Specifically, Kendall requested, in place of the thin cotton gloves Metro-North normally provides, gloves with a gel coating in the palms, which provides greater insulation when working with power tools that generate significant vibrations, such as jackhammers and helldogs. Kendall made such requests multiple times, but they were all denied. Other employees at Metro-North received these gel gloves, but Kendall was told that he could not receive them because he was a foreman.
In 2010, Kendall first saw a doctor for the pain in his hands: Dr. Alan Gotesman ("Dr. Gotesman"), a hand specialist. The initial appointment occurred on August 26, 2010. Through this and subsequent appointments, Dr. Gotesman diagnosed Kendall as having carpal tunnel syndrome and trigger fingers. Furthermore, after Kendall explained his job duties to Dr. Gotesman, Dr. Gotesman specifically stated that he believed that Kendall's job duties caused, or at least contributed, to these injuries. Dr. Gotesman identified specifically the repetitive motion from his job duties, as well as the pounding vibrations from power tools such as jackhammers and helldogs, and the constant gripping and squeezing motion of other tools. To date, Kendall has undergone multiple surgeries and other medical procedures to address his injuries.
Kendall commenced this FELA action on August 6, 2012. The case was reassigned to this Court on December 12. Following an initial conference, a January 18, 2013 Pretrial Scheduling Order set a schedule for both fact and expert discovery. Following discovery, on December 20, 2013, Metro-North moved for summary judgment. The motion was fully submitted as of February 21, 2013.
Summary judgment may not be granted unless all of the submissions taken together "show that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The moving party bears the burden of demonstrating the absence of a material factual question, and in making this determination, the court must view all facts in the light most favorable to the non-moving party. Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 456 (1992); Holcomb v. Iona Coll., 521 F.3d 130, 132 (2d Cir. 2008).
Once the moving party has asserted facts showing that the non-movant's claims cannot be sustained, the opposing party must "set out specific facts showing a genuine issue for trial, " and cannot "rely merely on allegations or denials" contained in the pleadings. Fed.R.Civ.P. 56(e); see also Wright v. Goord, 554 F.3d 255, 266 (2d Cir.2009). Nor may a party "rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment, " as "[m]ere conclusory allegations or denials cannot by themselves create a genuine issue of material fact where none would otherwise exist." Hicks v. Baines, 593 F.3d 159, 166 (2d Cir.2010) (citation omitted). Only disputes over material facts - "facts that might affect the outcome of the suit under the governing law" - will properly preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The ordinary summary judgment standard is considerably more plaintiff-friendly in FELA cases. Because FELA is "a broad remedial statute whose objective is to provide a federal remedy for railroad workers who suffer personal injuries as a result of the negligence of their employer" and "is to be liberally construed" to achieve that objective, Greene v. Long Island R.R., 280 F.3d 224, 229 (2d Cir. 2002) (citing Atchison, Topeka & Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 561-62 (1987)), "the right of the jury to pass on factual issues must be liberally construed." Williams v. Long Island R.R., 196 F.3d 402, 407 (2d Cir. 1999) (citation omitted). Accordingly, a FELA case "must not be dismissed at the summary judgment phase unless there is absolutely no reasonable basis for a jury to find for the plaintiff." Syverson v. Consol. Rail Corp., 19 F.3d 824, 828 (2d Cir. 1994) (emphasis added).
Metro-North asserts that it is entitled to summary judgment based on two arguments: (1) Kendall's claim is barred by the three-year statute of limitations under FELA; and (2) the testimony of Kendall's expert, Dr. Morrisey, does not meet the standards required by Federal Rule of Evidence 702, as explained in Daubert v. Merrell Dow Pharma., 509 U.S. 579 (1993), and as ...