Gloria Andrews v. Norfolk Southern Railway Company

02/12/2019
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
January 15, 2019 Session
GLORIA ANDREWS, ET AL. v. NORFOLK SOUTHERN RAILWAY
COMPANY
Appeal from the Circuit Court for Knox County
No. 2-468-11 William T. Ailor, Judge
No. E2018-00508-COA-R3-CV
This appeal arises from a widow’s suit over her husband’s alleged exposure to asbestos.
Raymond Andrews (“Decedent”) worked for Norfolk Southern Railway Company
(“Norfolk Southern”) for 24 years before retiring. He later died of lung cancer.
Decedent’s wife, Gloria Andrews (“Plaintiff”), sued Norfolk Southern in the Circuit
Court for Knox County (“the Trial Court”) under the Federal Employers’ Liability Act
(“FELA”) alleging that her late husband had been exposed to asbestos while working for
Norfolk Southern. Norfolk Southern filed several evidentiary motions which the Trial
Court granted. Norfolk Southern subsequently filed a motion for summary judgment,
which also was granted. Plaintiff appeals to this Court raising several evidentiary issues.
We hold that the Trial Court did not err in excluding lay testimony regarding the presence
of asbestos in areas where Decedent worked because these witnesses lacked personal
knowledge about the alleged asbestos. Plaintiff was unable to produce any admissible
evidence at the summary judgment stage to support her claim that Norfolk Southern
failed to maintain a safe working environment. We affirm the judgment of the Trial
Court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed;
Case Remanded
D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which THOMAS R.
FRIERSON, II and W. NEAL MCBRAYER, JJ., joined.
H. Douglas Nichol, Knoxville, Tennessee; and, Robert F. Daley and Elizabeth A.
Chiappetta, Pittsburgh, Pennsylvania,1 for the appellant, Gloria Andrews, Administratrix
of the Estate of Raymond Andrews.
1
These attorneys were admitted pro hac vice.
John W. Baker, Jr. and Emily L. Herman-Thompson, Knoxville, Tennessee, for the
appellee, Norfolk Southern Railway Company.
OPINION
Background
Decedent worked for Norfolk Southern from 1965 until his retirement in 1989.2
During his career with the railroad, Decedent worked as a brakeman, trainman, and
locomotive engineer. In 2000, Decedent was diagnosed with lung cancer. In November
2002, Decedent died from his illness at the age of 63.
In September 2011, Plaintiff sued Norfolk Southern in the Trial Court alleging that
her late husband had been exposed to asbestos on the job and that this exposure caused
Decedent’s lung cancer. Notably, Decedent was a long-time cigarette smoker, having
started smoking at age 13 and carrying on at the clip of one pack per day until 2000.
Throughout this case, Norfolk Southern has pointed to Decedent’s smoking habit as the
cause of his lung cancer rather than any workplace exposure to asbestos.
Norfolk Southern filed a number of evidentiary motions, which the Trial Court
granted. These motions targeted several pieces of Plaintiff’s evidence: historical
documents from the Association of American Railroads and the Association of Railway
Claim Agents; lay testimony regarding the presence of asbestos in areas where Decedent
worked; “State of the Art” knowledge evidence; and OSHA regulations.
A major pillar of Plaintiff’s case excluded was the testimony of Dr. Arthur Frank,
an expert in occupational medicine, as to causation. In a deposition, Dr. Frank testified
to his belief that Decedent’s lung cancer was brought about, at least in part, by exposure
to asbestos:
Q. Mr. Andrews worked during the diesel era?
A. He did. I don’t know exactly when the steam era left that railroad, but
he started there, what, in ’60...
Q. 5.
A. -- 5. That would have most likely have been the diesel era, and diesel
engines are well known to have asbestos on them.
Q. Okay. He didn’t work in maintenance?
A. No.
2
Southern merged with Norfolk & Western in the 1980s to become Norfolk Southern.
-2-
Q. He wasn’t a shop worker?
A. No. He was a trackman, conductor, fireman and engineer.
Q. He did not work with or handle asbestos or products that may have had
some asbestos in them?
A. I don’t know exactly what his job duties were. He was probably -- when
you say “handled”, I can’t speak to what he handled. I can say that he was
around asbestos-containing materials.
Q. But you don’t have any evidence that he worked with asbestos-
containing materials by cutting or mixing or touching or anything along
those lines?
A. Correct.
Q. At most, he was around it some on occasion as a bystander?
A. He may have been a bystander when others were working with it, or his
time as a fireman or engineer may have brought him in contact with it
directly when he was in the cab of engines. I have no knowledge of which
specific locomotives he worked on, but there are locomotives where there
were asbestos-wrapped pipes that workers have often reported they would
rest their feet on, for example.
Q. You don’t have any evidence of that in this case, do you?
A. I said I don’t know specifically what his -- I don’t know anything about
which locomotives he worked on, so I have no knowledge about that. That
knowledge and information would be available. There was even one
locomotive I’ve heard of where the toilet facilities were at the head of the
locomotive -- I guess it was running long head forward -- and you’d have to
walk through a passageway to get there that was sprayed with asbestos.
I’ve heard those situations as well. So, there were clearly situations that
engineers and firemen would have been exposed to asbestos on the
equipment they worked.
Q. You believe that this exposure to asbestos played a role in causing this
lung cancer?
A. Yes.
Q. This relationship between asbestos exposure and lung cancer, is this a
dose-response relationship?
A. Yes, it is.
Q. The more exposure you have, the more likely you are to get the disease?
A. Yes.
Q. Is it true that you can be exposed to asbestos and never get sick from it?
A. Absolutely. We are all exposed to it. We all don’t get asbestos disease.
Q. You can certainly be exposed and never develop lung cancer because of
it?
A. Correct.
-3-
Q. Asbestos is a naturally-occurring substance?
A. Yes.
Q. If I walked downtown here in Philadelphia --
A. You are downtown, but if you walked around outside.
Q. I walked around downtown outside, would I be exposed to asbestos?
A. Yes, sir.
Q. Am I exposed to asbestos in this room?
A. I would think so.
***
Q. If all you had in terms of an exposure history was exposure levels at
background, you would be unable to attribute that person’s lung cancer to
asbestos exposure, wouldn’t you?
A. If I am presented with the facts of the case that an individual’s exposure
to asbestos was nothing other than background, then I would not come into
a court and tell a jury with a reasonable degree of medical certainty that
asbestos was the cause of that person’s lung cancer. If I --
Q. Thank you.
A. -- if I could just finish.
Q. I thought you were through. I’m sorry.
A. -- if I have any evidence of exposure above background, even, for
example, where there is background and then similar levels are given off in
the workplace, what started out as “X” exposure is now “2X” exposure,
then it becomes more likely than not that asbestos was a contributing cause.
Q. So, you are an advocate of the any exposure theory above background is
causative?
A. Yes.
Q. Okay. Where can I go to read about that theory?
A. You can read all you want about carcinogenesis theory that tells you that
no level of exposure to a cancer-causing agent should be considered as safe.
It’s exactly what I lectured my class yesterday. You can read that --
Q. Where -- I’m sorry.
A. If you want to -- go read Michael Potter’s work on carcinogenesis
theory. He was writing about this in the mid 1970s.
Q. What peer-reviewed article of Mr. Potter’s can you refer me to on that?
A. That was Doctor Potter, and --
Q. Doctor Potter.
A. -- I was taking a graduate-level course on carcinogenesis theory from
him at the National Cancer Institute, and I, frankly, don’t remember which
articles he used to teach us that.
-4-
Q. So, you can’t tell me that there are, in fact, any articles?
A. There are plenty of documents addressing specific carcinogens such as
asbestos where OSHA and NIOSH, the EPA have all said -- IARC, I
believe, have all said there is no known safe level to asbestos. The
American Petroleum Institute in a document in 1948 said that the only safe
level of exposure to benzene was zero. So, there are those kinds of
writings, but they weren’t ubiquitous with regard to every known
carcinogen, but the same principle does, in fact, apply.
In its order granting Norfolk Southern’s motion to exclude Dr. Frank’s testimony,
the Trial Court stated as relevant:
(1) That there is no testimony of any scientific evidence that the
“any exposure theory” presented by Dr. Frank upon which he has based his
causation opinion has been tested and the methodology by which it has
been tested;
(2) There is no testimony that any evidence has been subject to peer
review or publication on Dr. Frank’s “any exposure theory,” or that it has
been tested;
(3) There is no testimony as to a potential rate of error of the theory
is known;
(4) There is no testimony that the evidence concerning Dr. Frank’s
“any exposure theory” is generally accepted in the scientific community;
(5) There is no testimony that Dr. Frank’s research in the field on the
subject of the “any exposure theory” has been conducted independent of
litigation.
The Court finds that the essential factors contained in Rule 702 and
703 of the Tennessee Rules of Evidence, have not been met and Dr. Frank’s
medical causation opinion fails to satisfy Tennessee’s Standards for the
Admissibility of Expert Opinion Testimony. The Court further finds that
pursuant to Rule 403 of the Tennessee Rules of Evidence, that the
testimony’s probative value is outweighed by its prejudicial effect based
upon the complexity of the case and other evidence to be presented to the
jury.
Accordingly, it is ORDERED that Dr. Arthur Frank will not be
allowed to testify at the trial of this case on the issue of specific medical
causation and will not be allowed to testify that exposure of Raymond
Andrews to asbestos caused or contributed to cause Mr. Andrews’ lung
cancer.
-5-
The Trial Court also entered an order excluding certain lay testimony as to the
presence of asbestos in Decedent’s workplace. In its oral ruling attached to its order, the
Trial Court stated in part:
[T]he reason the Court asked about whether or not the plaintiff’s witnesses
could identify the supervisor who may have told them, because if -- under
Rule 803(1.2), that may have been admissible under the exception.
Based on the statements made in what the Court has reviewed, the
Court does not feel that that exception applies, then under (3) Then Existing
Mental, Emotional, or Physical Condition, “A statement of the declarant’s
then existing state of mind, emotion, sensation, or physical condition (such
as intent, plan, motive, design, mental feeling, pain, and bodily health)” --
the Court was curious about that as well, but the rule goes on to state “but
not including a statement of memory or belief to prove the fact
remembered.”
So based on what the Court has reviewed, the Court does not believe
that the lay witnesses will have sufficient foundation to be able to testify
that asbestos was contained in the areas where Mr. Andrews worked. They
can testify as to what they saw, what they observed, and anything with
regard to matters of that nature, however, so the Court will not exclude any
testimony with regard to that.
Following its success on the evidentiary motions, Norfolk Southern filed a motion
for summary judgment. The Trial Court granted Norfolk Southern’s motion for summary
judgment. In its February 2018 order, the Trial Court stated as pertinent:
This matter came on to be heard on the Defendant’s Amended
Motion for Summary Judgment, the response of the Plaintiff in opposition
to the motion as well as the other filings by the parties and the arguments of
counsel. The Defendant argues that pursuant to Tenn. R. Civ. P. 56 they
are entitled to summary judgment as there are no genuine issues of material
fact and they are entitled to a judgment as a matter of law.
The Defendant’s motion is based on three (3) grounds:
1. FELA requires Plaintiff to offer “expert testimony on the issue of
specific medical causation unless the injury involved has such an obvious
causal origin that lay jurors can assess causation based on their common
knowledge and experience;”
2. Plaintiff cannot establish notice by her own admission and based on the
Court’s prior rulings;
-6-
3. Plaintiff cannot prove that the “decedent was exposed to disturbed
friable3 asbestos source (above background levels) in his work;”
In response, the Plaintiff asserts that:
1. The Defendant has failed to rebut ALL essential elements of the
Plaintiff’s claim;
2. The Plaintiff will be able to offer expert testimony on general causation
regarding the medical relationships of lung cancer and asbestos exposure
and will be able to offer expert and lay testimony as to the presence of
asbestos at decedent’s workplace and that under FELA the jury may infer
specific causation from this general testimony.
3. Under FELA the standard for causation is relaxed and the jury can
determine causation from circumstantial evidence from lay and expert
testimony;
4. Under FELA Plaintiff only has to prove causation by more than a
“scintilla of evidence”.
***
The Court in prior rulings has excluded Plaintiff’s evidence
concerning the speculative testimony of the Plaintiff and his co-workers
who were told about asbestos and saw what they thought and assumed was
asbestos as speculative and not corroborated and therefore not trustworthy
and likely to confuse a jury and the prejudicial value outweighing the
probative value. There has been no testimony of any friable asbestos
material which as one of Plaintiff’s experts, Dr. Vance, said creates a
hazard. (p. 132, Vance Depo.) In fact, taking the facts in the light most
favorable to the non-moving party, there is no testimony of any asbestos
containing material in a dangerous condition that the Plaintiff was exposed
to.
Regarding Defendant’s first argument that FELA requires expert
testimony concerning causation, Defendant argues that the Court’s ruling
on February 3, 2015 concerning Dr. Frank’s causation testimony and that
the testimony of the decedent’s treating oncologist, Dr. Bruce Avery, M.D.
does not have expertise in asbestos-related lung cancer and does not, and
cannot offer any opinion on medical causation as to asbestos within a
reasonable degree of medical certainty and therefore, the Plaintiff cannot
meet her burden concerning expert testimony in a toxic exposure case.
3
“Friable” asbestos refers to asbestos that is loose or airborne.
-7-
In reviewing the case law cited by Plaintiff, the Court reviewed
Hardyman v. Norfolk and Western, 243 F. 3rd 255 (2001), which stated, “we
recognize FELA to be a remedial and humanitarian statute ... enacted by
Congress to afford relief to employees from injury incurred in the railway
industry.” Mounts v. Grand Trunk W. R.R., 198 F.3d 578, 580 (6th Cir.
2000) (quoting Edsall v. Penn Cent. Transp. Co., 479 F.2d 33, 35 (6th Cir.
1973)). Congress intended FELA to be a departure from common law
principles of liability as a “response to the special needs of railroad workers
who are daily exposed to the risks inherent in railroad work and are
helpless to provide adequately for their own safety.” Aparicio v. Norfolk &
W. Ry. Co., 84 F.3d 803, 807 (6th Cir. 1996) (quoting Sinkler v. Missouri
Pac. R.R. Co., 356 U.S. 326, 329, 78 S. Ct. 758, 2 L. Ed. 2d 799 (1958)).
The Defendant has offered witnesses who have tested the
locomotives that Mr. Andrews worked on who have each testified that there
was not asbestos in the areas of the locomotive where Mr. Andrews
worked. Under FELA the Plaintiff does not have to prove that the
asbestosis was caused solely by the negligence of the Defendant only that is
[sic] either caused it or contributed to it.
Dr. Avery, M. D., the Plaintiff’s oncologist, testified that the only
information he had concerning Mr. Andrews’ was either provided by Mr.
Andrews and his own treatment of him and that he could not offer
testimony within a reasonable degree of medical certainty that Mr.
Andrews’ lung cancer was caused by asbestos exposure.
The Court further finds that the testimony of Dr. Vance is not
sufficient to be submitted to a jury as his testimony is not based on any
testing he has done or his own experience or knowledge and is not reliable
under rule 702 and 703 of the TRE. Dr. Vance testified that he cannot to a
reasonable degree of certainty give an opinion that Mr. Andrews was
exposed to asbestos from the ceilings of locomotives. (Depo. p. 120) He
has not seen any evidence of asbestos or abatement of the same in the
dormitories that Mr. Andrews stayed in at the John Sevier yard. (Depo. p.
121) He has never been on a diesel locomotive, seen a cab heater and never
been in, studied or conducted any sampling of any railroad environment.
There is no evidence of asbestos containing products where Mr. Andrews
worked or that if there were that they were in a friable condition. There is
no proof that there was asbestos above background levels that everyone is
subjected to on a regular basis. The Court must have some reliable dat[a]
to allow an expert to base his opinion on. Here that is not the case.
The testimony of the co-workers of Mr. Andrews that there was
asbestos containing material was determined to be unreliable as it was
-8-
third-hand information that could not be corroborated and was otherwise
speculative.
The defendant cited Aparicio v. Norfolk & Western Ry. Co., 84 F.3d
803, (1996) which does not apply in this case as it deals with carpel tunnel
syndrome which was diagnosed by an orthopedic surgeon after the plaintiff
complained of numbness and tingling in his hand. In that case, the
plaintiff’s work history showed that he was subject to repetitive use of his
hands as a result of his work requirements using tools such as air tampers,
jack hammers, impact wrenches, claw bars, anchor wrenches, grinders, and
spiking guns. The case before this Court is a toxic exposure case and thus
the proof is more exacting.
***
In this case, the Defendant has negated an essential element of the
plaintiff’s case, the negligence of the Defendant to provide a safe work
environment free from toxic exposure to asbestos. The testimony of the
Plaintiff’s witnesses as to possible exposure to asbestos has been
speculative and not sufficient to meet the burden to show that the
Defendant was negligent or that there was friable asbestos such that could
cause or contribute the condition of the Plaintiff. The Plaintiff’s proof is of
such a speculative nature and has not tied anything to the Defendant that
would show that the Defendant was negligent or that there was asbestos in
such a form that would expose Plaintiff to dangerous levels causing or
contributing to his condition. Therefore, the plaintiff has been unable to
bring forth evidence that this plaintiff was exposed to asbestos as a result of
the negligence of the defendant and as a result the Motion for Summary
Judgment is granted.
IT IS THEREFORE ORDERED that the Defendant’s Motion for
Summary Judgment is hereby granted.
(Footnote added). Plaintiff timely appealed to this Court.
Discussion
We restate and consolidate the several issues Plaintiff raises on appeal into the
following single dispositive issue: 1) whether the Trial Court erred in granting summary
judgment in favor of Norfolk Southern on the basis that Plaintiff failed to submit any
admissible evidence that Decedent ever was exposed to asbestos at his work such that
Norfolk Southern could be found liable for his illness.
-9-
As our Supreme Court has instructed regarding appellate review of a trial court’s
ruling on a motion for summary judgment:
Summary judgment is appropriate when “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law.”
Tenn. R. Civ. P. 56.04. We review a trial court’s ruling on a motion for
summary judgment de novo, without a presumption of correctness. Bain v.
Wells, 936 S.W.2d 618, 622 (Tenn. 1997); see also Abshure v. Methodist
Healthcare–Memphis Hosp., 325 S.W.3d 98, 103 (Tenn. 2010). In doing
so, we make a fresh determination of whether the requirements of Rule 56
of the Tennessee Rules of Civil Procedure have been satisfied. Estate of
Brown, 402 S.W.3d 193, 198 (Tenn. 2013) (citing Hughes v. New Life Dev.
Corp., 387 S.W.3d 453, 471 (Tenn. 2012)).
***
[I]n Tennessee, as in the federal system, when the moving party does not
bear the burden of proof at trial, the moving party may satisfy its burden of
production either (1) by affirmatively negating an essential element of the
nonmoving party’s claim or (2) by demonstrating that the nonmoving
party’s evidence at the summary judgment stage is insufficient to establish
the nonmoving party’s claim or defense. We reiterate that a moving party
seeking summary judgment by attacking the nonmoving party’s evidence
must do more than make a conclusory assertion that summary judgment is
appropriate on this basis. Rather, Tennessee Rule 56.03 requires the
moving party to support its motion with “a separate concise statement of
material facts as to which the moving party contends there is no genuine
issue for trial.” Tenn. R. Civ. P. 56.03. “Each fact is to be set forth in a
separate, numbered paragraph and supported by a specific citation to the
record.” Id. When such a motion is made, any party opposing summary
judgment must file a response to each fact set forth by the movant in the
manner provided in Tennessee Rule 56.03. “[W]hen a motion for summary
judgment is made [and] . . . supported as provided in [Tennessee Rule 56],”
to survive summary judgment, the nonmoving party “may not rest upon the
mere allegations or denials of [its] pleading,” but must respond, and by
affidavits or one of the other means provided in Tennessee Rule 56, “set
forth specific facts” at the summary judgment stage “showing that there is a
genuine issue for trial.” Tenn. R. Civ. P. 56.06. The nonmoving party
“must do more than simply show that there is some metaphysical doubt as
-10-
to the material facts.” Matsushita Elec. Indus. Co., 475 U.S. at 586, 106 S.
Ct. 1348. The nonmoving party must demonstrate the existence of specific
facts in the record which could lead a rational trier of fact to find in favor of
the nonmoving party. If a summary judgment motion is filed before
adequate time for discovery has been provided, the nonmoving party may
seek a continuance to engage in additional discovery as provided in
Tennessee Rule 56.07. However, after adequate time for discovery has
been provided, summary judgment should be granted if the nonmoving
party’s evidence at the summary judgment stage is insufficient to establish
the existence of a genuine issue of material fact for trial. Tenn. R. Civ. P.
56.04, 56.06. The focus is on the evidence the nonmoving party comes
forward with at the summary judgment stage, not on hypothetical evidence
that theoretically could be adduced, despite the passage of discovery
deadlines, at a future trial.
Rye v. Women’s Care Cntr. of Memphis, MPLLC, 477 S.W.3d 235, 250, 264-65 (Tenn.
2015).
The most significant case on FELA and asbestos claims in recent years in
Tennessee comes from our Supreme Court in Payne v. CSX Transportation, Inc., 467
S.W.3d 413 (Tenn. 2015). In Payne, a retired railroad worker sued his former employer
after he was diagnosed with lung cancer. The plaintiff in that case was exposed to
multiple harmful substances including radiation, fumes, and asbestos. The matter
proceeded to a jury trial. Payne, while not squarely analogous, is useful for the present
case insofar as it grappled with the sort of evidentiary issues implicated herein.
In 1908, Congress enacted FELA as a means by which railroad workers could
obtain compensation for their workplace injuries. Payne, 467 S.W.3d at 434-35; 45
U.S.C. § 51.4 Federal substantive law governs FELA claims. Id. at 435. “[I]n order to
prove the element of causation, a FELA plaintiff need only show that the railroad’s
negligence ‘played any part, even the slightest, in producing the injury or death for which
damages are sought.’ ” Id. at 436 (quoting Rogers v. Mo. Pac. R.R., 352 U.S. 500, 506,
77 S. Ct. 443, 1 L. Ed. 2d 493 (1957)). In Payne, our Supreme Court went on to find that
the qualitative and differential diagnoses conducted by the plaintiff’s experts were valid
and that it was “well within the province of the jury to review the expert testimony and
determine whether Mr. Payne’s exposure to asbestos, diesel fumes, or radiation was
substantial enough to be a contributing cause of his cancer.” Id. at 457-58.
4
“The only possible defendants are railroads engaged in interstate commerce. The only possible
plaintiffs are the employees of those railroads who are injured on the job.” Payne, 467 S.W.3d at 435 n.
16 (quoting CSX Transp., Inc. v. Miller, 159 Md.App. 123, 858 A.2d 1025, 1029 (2004)).
-11-
On appeal, Plaintiff correctly asserts that her case was gutted by the Trial Court’s
evidentiary rulings. That, however, does not mean the Trial Court was in error.
According to Plaintiff, these rulings as well as the grant of summary judgment to Norfolk
Southern should be overturned in light of Payne’s holding concerning the admission of
qualitative analysis and lay testimony. Norfolk Southern, as one might expect, argues in
response that Payne is distinguishable and that the Trial Court properly excluded the
evidence.
In our judgment, the threshold question is whether Plaintiff submitted any
admissible evidence that Decedent was exposed to asbestos while working for Norfolk
Southern. Plaintiff’s case that Decedent was exposed to asbestos rests on the testimony
of lay witnesses that the Trial Court excluded. It is on the basis of these lay witness
accounts that Plaintiff’s expert evidence is anchored.
We turn again to Payne, which addressed lay witness testimony in an asbestos
context. Our Supreme Court, in concluding that the trial court did not err in admitting lay
witness testimony about asbestos, discussed as follows:
The Defendant next argues that the admission of lay testimony
regarding the presence of asbestos in the workplace warranted a new trial.
In particular, the Defendant points to the testimony by Mr. Payne, Mr.
Carringer, who was a co-worker, and Mr. Rhodes, a railroad employee who
worked under similar conditions, indicating that they had worked in close
proximity to materials that contained asbestos, including pipe insulation
and brake components. The Defendant insists that this testimony should
have been excluded because asbestos can injure a person only if it is in a
respirable form, as often occurs when a product containing asbestos is
frayed or damaged in some way; thus, according to the Defendant, the
“presence of an [asbestos containing material] alone does not entitle a
FELA claimant to recovery.”
The Defendant’s argument focuses on the sufficiency of the lay
testimony to establish the Plaintiff’s asbestos claim, whereas the proper
inquiry is whether the testimony met the standards for admissibility.
Admissibility is determined primarily by the evidentiary rules governing
relevance, unfair prejudice, and competence. In this instance, the lay
witnesses were competent to testify because they had personal knowledge
of the presence of asbestos in their workplaces. Tenn. R. Evid. 602.
Regardless of whether their testimony was sufficient to independently
satisfy the requirements of a FELA claim, the evidence was relevant in that
it made the existence of an injury resulting from asbestos exposure “more
-12-
probable ... than it would be without the evidence.” Tenn. R. Evid. 401.
The Defendant does not claim that the evidence should be excluded on the
basis of unfair prejudice or any other ground of inadmissibility set out in
Tennessee Rule of Evidence 403. The Defendant instead claims that the lay
testimony was improper under Tennessee Rule of Evidence 701(a), which
provides that non-expert witnesses may testify as to opinions only when
they are “rationally based on the perception of the witness” and are either
“helpful to a clear understanding of the witness’s testimony or the
determination of a fact in issue.”
Rule 701(a) authorizes the admission of this testimony. Mr. Payne
and Mr. Carringer merely testified to the presence of asbestos without
offering a scientific opinion as to whether the condition of the asbestos
rendered it capable of causing injury. Although Mr. Rhodes indicated that
he had seen “friable” asbestos, his testimony was based upon his training in
the field of asbestos removal. See Gibson v. W.C.A.B. (Armco Stainless &
Alloy Prods.), 580 Pa. 470, 861 A.2d 938, 948 (2004) (noting that a lay
witness may provide a technical opinion regarding asbestos in the
workplace based upon “either formal education or practical experience”).
Under these circumstances, Judge Wimberly did not err by admitting the
lay testimony regarding the presence of asbestos in the witnesses’
workplaces, and the admission of that testimony did not warrant a new trial.
See Clark v. ITT Grinnell Indus. Piping, Inc., 141 N.C. App. 417, 539
S.E.2d 369, 374 (2000) (holding that lay testimony as to the presence of
asbestos in the workplace “was competent evidence to support the ...
finding that plaintiff was exposed to asbestos”), remanded for
reconsideration on other grounds, 354 N.C. 572, 558 S.E.2d 867 (2001);
Olinger v. Pretty Prods., Inc., No. 96-CA-29, 1997 WL 33814208, at *4
(Ohio Ct.App. Nov. 7, 1997) (holding that lay testimony as to the presence
of asbestos in the workplace, which was based upon personal knowledge of
employees, was properly admitted); Perman v. C.H. Murphy/Clark–
Ullman, Inc., 220 Or.App. 132, 185 P.3d 519, 523 (Or.Ct.App.2008)
(holding that lay testimony as to the presence of asbestos in the workplace
was admissible because it was rationally based upon the perception of the
witness).
Payne, 467 S.W.3d at 445-46.
In the present case, Plaintiff points to various pieces of evidence that Decedent
was exposed to asbestos while working for Norfolk Southern. In a deposition conducted
as part of litigation prior to his demise, Decedent himself stated as follows:
-13-
Q. Let’s switch gears and tell me about locomotives. What type of
locomotives had asbestos on them?
A. Well, you got me again.
Q. What was the asbestos doing? Where was it in the locomotive?
A. I imagine it was the ceiling, because the ceiling was ripped out. You
know what I mean? It’s been so long, I’m trying think of the name of the
engines. But it’s been so long I can’t remember the name of those engines
and things.
***
Q. Where on those locomotives when you were a brakeman that series or
that age locomotive back in the late sixties, where was the asbestos, as best
you know, or whatever you were told?
A. It was -- we had some heaters, you know, floor line pipe.
Q. Okay.
A. And also I was told that some of the -- think they call them L-7s had out
of the ceiling. I can’t swear to that, but I was told that.
Q. So in the late sixties the best memory you have is working on
locomotives that had some heater pipes that may have been wrapped with
asbestos down on the floor of the cab?
A. Right.
Q. And you were told may have even had some asbestos in the ceilings of
the locomotive?
A. Right.
In her own deposition, Plaintiff stated:
Q. So do you know anything about asbestos?
A. Very little.
Q. Would you be able to tell if something was asbestos or wasn’t asbestos?
A. No.
Q. And you don’t have any personal knowledge about any asbestos-
containing materials that would have been on any locomotive, do you?
A. Well, according to my husband -- I don’t have proof, but my husband
stated that they did tear some asbestos out of an engine that he was on.
Q. That he was on, while he was on it?
A. Yes.
Q. Tell me about that.
A. He just said that they came in and cleared out the, I think, the ceiling or
the roof of the engine --
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Q. Okay --
A. -- that contained asbestos.
Russell K. Anderson, a trainman and conductor, stated as follows:
Q. Okay. And pipes, you don’t know what covered the pipes, do you?
A. Well, there were a lot of white taping that was on the pipes, and I was
told later that it had asbestos in it.
Q. Who told you such a thing?
A. Well, I was told by some of the inspectors that had examined me, and
also some of the people that -- not railroad people, that I know of.
Q. Just your lawyers?
A. Yes.
Q. Okay. But you personally, of your own personal knowledge, don’t
know what that white stuff was, of your own personal knowledge?
A. Well, it was just used to insulate the pipes is all I really know.
Continuing with Plaintiff’s lay witnesses, locomotive engineer James Greenlee, Sr.
stated:
Q. Now, did anyone ever tell you the brake shoes might have some asbestos
in them?
A. We had -- speaking of some of the things that asbestos was involved in,
some of the makeup, composition of the shoes, if I’m not mistaken, I’m
more than sure they had asbestos in them.
Q. Who told you that?
A. That was talking amongst other fellow workers that had come in contact.
Q. Oh, okay.
A. I don’t know -- I’m not no authority on this, that, and the other, so I
wouldn’t know. But just in general conversation.
Q. So that would be like hearsay, somebody told you that they thought that
some of the brake shoes might have asbestos in them, right?
A. Well, when we read certain magazines, railroad magazines, it told us
that they had composition asbestos.
Q. Uh-huh.
A. Through our unions and magazines and like that.
Q. Okay.
A. So . . .
Q. Now, you wouldn’t know what asbestos looks like, would you?
A. No, I wouldn’t.
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Jack Edmondson, a brakeman and conductor, stated:
Q. So you’re saying that on the F7s you had a grated ceiling --
A. A grated ceiling.
Q. Grated, G-R-A-T-E-D, ceiling?
A. Yes.
Q. With little holes in it?
A. Yeah.
Q. Okay. And that -- do you know what was underneath the grate?
A. Well, I didn’t until I --
Q. If anything?
A. Pardon?
Q. If anything?
A. Yeah, I’m fixing to tell you anything. I had been working a week or ten
days or something. You make a hard coupling -- because I’m on the lead
locomotive with the engineer and they make a hard coupling back here, the
trainman did or the conductor, and this stuff come down out of the ceiling.
So I say to Joe or Bill or Sam, whoever is running the engine, I said, “Mr.
Kesterson, what’s that a-falling? Is that dirt?” And he said, “No. That’s
asbestos.”
Q. The engineer told you that?
A. Yeah. I said, “What’s asbestos?” Because honestly I didn’t know. And
he explained to me it was the insulation material. But I’ll tell you what, the
phrase I used, is I would always tell everybody it looked like a Texas dust
storm.
***
Q. All right. You don’t have any independent specific knowledge of the
composition of any of the insulation that was used on any of these pipes or
any part of any locomotive, do you, independent knowledge?
A. No. Just what I was told.
Q. And who were the people who did the telling?
A. Just the old-timers that had been there -- well, the oldest men I worked
with was hired in in 1927. And then we had some 1935 men and ’37 men
and 1941 men. And they just took you under their wing, and you were just
an old country boy with a pair of brogan shoes. They liked you. They tried
to look out for you.
In Payne, our Supreme Court focused on whether the lay witnesses had “personal
knowledge of the presence of asbestos in their workplaces.” 467 S.W.3d at 445. Here,
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none of the lay witnesses had any “personal knowledge of the presence of asbestos in
their workplaces,” either from their educational backgrounds or from practical
experience. Plaintiff’s witnesses relied entirely on what they told, either by lawyers,
“old-timers,” or other largely unidentified non-supervisory personnel. Plaintiff argues
that this goes to the weight of the evidence and not its admissibility. We, as did the Trial
Court, disagree. If one of Plaintiff’s witnesses had testified that he or she was familiar
with asbestos and knew from personal knowledge that it was located in an area where
Decedent worked on trains—friable or not—that would be one thing. The record
contains no such testimony. This testimony was properly excluded by the Trial Court for
the reasons given by the Trial Court as already discussed above. We have reviewed the
voluminous record in this case and have found no evidence from sources with personal
knowledge, either lay or expert witnesses, that asbestos was located in any of the areas
where Decedent worked. In contrast, Norfolk Southern conducted extensive historical
research on trains from Decedent’s era and submitted its own evidence that Decedent
never would have been exposed to asbestos where he worked. Plaintiff did not rebut this
evidence, nor indeed present any affirmative, admissible evidence of her own in
opposition.
Without some evidence of asbestos exposure in Norfolk Southern’s workplace,
Plaintiff cannot tie in the medical and historical evidence regarding the carcinogenic risk
from asbestos or Norfolk Southern’s purported knowledge of the danger. There must be
an initial threshold showing of Decedent’s exposure to asbestos where he worked. This
is an essential element of Plaintiff’s claim. It may not be inferred from Decedent’s lung
cancer alone that Decedent was exposed to asbestos or that Norfolk Southern was
negligent. Plaintiff already has conceded below that the mere presence of asbestos on
railway locomotives or railcars is not in itself actionable, and the evidence shows that
there is a certain background level of asbestos exposure that virtually everyone is
exposed to everywhere. The Trial Court did not err in granting Norfolk Southern’s
motion to exclude the lay testimony, and consequently, an essential pillar of Plaintiff’s
case was toppled.
Norfolk Southern made a properly supported motion for summary judgment. To
withstand summary judgment, Plaintiff had to submit admissible evidence showing that
Decedent had been exposed to asbestos while working for Norfolk Southern. Plaintiff
failed to do so. That being the case, Norfolk Southern was entitled to judgment as a
matter of law. We affirm the judgment of the Trial Court.
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Conclusion
The judgment of the Trial Court is affirmed, and this cause is remanded to the
Trial Court for collection of the costs below. The costs on appeal are assessed against the
Appellant, Gloria Andrews, Administratrix of the Estate of Raymond Andrews.
____________________________________
D. MICHAEL SWINEY, CHIEF JUDGE
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