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Burns White client awarded Summary Judgment in West Virginia FELA case

Pittsburgh, Jan. 6, 2011 – The Circuit Court of Logan County, West Virginia, granted Summary Judgment in an FELA case involving allegations from an employee of Norfolk Southern Railway against his employer.

Burns White attorney Dean Falavolito represented Norfolk Southern for the defense.

The plaintiff, a current employee, argued he was being exposed to diesel fumes, welding fumes, ballast dust, and coal dust during his employment.

The defense moved for Summary Judgment, asserting no negligence existed under the FELA, specifically asserting that the Plaintiff had failed to show that Norfolk Southern had failed to provide him with a reasonably safe place to work and that the Plaintiff had failed to show that he suffered from any injury as a result of his employment.

The defense supported its motion by submitting the expert report of a certified industrial hygienist, who after review of the plaintiff’s exact work environment, reported on the specific levels of exposure claimed by the plaintiff, and concluded that the defendant provided the plaintiff with a reasonably safe place to work. The plaintiff offered no expert testimony in support of his claim that the defendant failed to provide him with a reasonably safe place to work, and also failed to offer any additional evidence to support his claim. The plaintiff’s claims regarding alleged exposures to various toxic substances required a level of testimony beyond that of the common lay person. Therefore, there was no genuine issue of material fact as to the defendant’s alleged breach of duty under the FELA.

The defense also highlighted that none of the plaintiff’s expert doctors opined that the plaintiff had any injury causally related to his employment with the defendant. The court agreed that these doctors never stated that the plaintiff’s injury was caused by exposure to toxic substances at work. Additionally, the independent medical evaluation of the plaintiff performed by a medical expert submitted by the defense was not rebutted by the plaintiff. In conclusion, the plaintiff did not show any genuine issue of material fact as to the defendant’s alleged negligence by failing to offer any evidence that he suffered from an injury caused by his employment with the defendant.

Therefore, the court ordered that there were no genuine issues of material fact in this case and the defendant’s Motion for Summary Judgment was granted. The plaintiff did not file an appeal.