Appeal from the December 8, 1986 Order of the Superior Court at No. 61 PGH 1986 vacating the Judgment entered December 13, 1985, in the Court of Common Pleas of Allegheny County, Civil Division, at No. GD83-19775, and remanding the case. 359 Pa. Super 477 (1986);
Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ. Papadakos, J., files a concurring and dissenting opinion which is joined by Larsen, J.
Howard F. Dale was employed as a pipefitter with the Baltimore and Ohio Railroad Company from 1944 to 1981.
From 1945 until 1955 Dale removed asbestos impregnated insulation from steam locomotives. When Dale retired in 1981, he was totally disabled and was diagnosed by his doctor as suffering from asthma and asbestosis. The gravamen of Dale's complaint, brought pursuant to the Federal Employers' Liability Act, is that B & O negligently exposed him to asbestos so as to cause his disability. The Federal Employers' Liability Act (FELA), provides, in pertinent part:
Every common carrier by railroad while engaging in commerce between any of the several States or Territories . . . shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce . . . for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.
Dale introduced evidence as to the nature of his exposure to asbestos on the job; medical opinion that his disability was caused by asthma and asbestosis; expert opinion indicating that from the 1930's through the 1950's there was a substantial body of medical literature indicating that asbestos dust was a hazard to employees; and evidence that between 1932 and 1955 an organization to which B & O belonged, the Association of American Railroads, published in minutes of its annual meetings various discussions of the hazards to health of dust generated by industrial activities.
B & O, on the other hand, introduced expert testimony that prior to 1964 the medical and scientific community did not believe that Dale's exposure to asbestos dust was hazardous; and it also introduced expert testimony to the effect that Dale's disability was completely caused by lung disease which Dale had before he worked for B & O, and that Dale did not have asbestosis.
As the United States Supreme Court has stated, "FELA cases adjudicated in state courts are subject to state procedural rules, but the substantive law governing them is federal." St. Louis Southwestern Railway Co. v. Dickerson, 470 U.S. 409, 411, 105 S.Ct. 1347, 1348, 84 L.Ed.2d 303, 306 (1985). That Court has also defined negligence within the context of an FELA action as follows:
[N]egligence, within the meaning of the Federal Employers' Liability Act, attache[s] if [the employer] "knew, or by the exercise of due care should have known," that prevalent standards of conduct were inadequate to protect petitioner and similarly situated employees.
Urie v. Thompson, 337 U.S. 163, 178, 69 S.Ct. 1018, 1028, 93 L.Ed. 1282, 1297 (1949). Thus, in order recover under FELA, a plaintiff must establish, inter alia, that the employer could have foreseen that injury to the employee was likely or reasonably probable, Gallick v. Baltimore & Ohio Railroad Co., 372 U.S. 108, 117, 83 S.Ct. 659, 665, 9 L.Ed.2d 618, 626 (1963), and failed to take reasonable steps to prevent injury to its employees.
In the present case, the trial court removed the issue of foreseeability from the jury, holding that injury to Dale from industrial dust was likely or reasonably probable, as a matter of law. The court also ruled that the testimony of two of B & O's experts was irrelevant and instructed the jury to disregard it. Subsequently, the jury returned a verdict for Dale in the amount of $544,245.00, to which the court added delay damages pursuant to Pa.R.C.P. 238 of $84,522.02. B & O's post-trial motions were denied and B & O took an appeal to Superior Court.
Superior Court affirmed the trial court on the foreseeability issue, the liability instruction and other issues not raised here, 359 Pa. Super. 477, 519 A.2d 450. However, it vacated the judgment and remanded the case for a reconsideration of the award of delay damages. On remand, the trial court reimposed the same delay damages. B & O again appealed to Superior Court, and we accepted a transfer of that appeal to this Court. Thus, we are deciding issues raised in the
original proceedings before the trial court and also issues raised when Superior Court remanded the case on the question of delay damages.
The issues raised on this appeal are (1) whether it was error for the trial court to remove the issue of foreseeability from the jury; (2) whether the trial court erred in instructing the jury to disregard expert testimony regarding the knowledge of the scientific and medical community with respect to the hazards of asbestos exposure; (3) whether the trial court was in error in instructing the jury that the railroad was liable for the whole of Dale's disability, even if it caused or aggravated only part of the disability; and (4) whether the trial court erred in molding the verdict to add delay damages pursuant to Pa.R.C.P. 238.
With respect to whether Mr. Dale's injury and subsequent disability was foreseeable, we believe that reasonable minds could differ. On the one hand, the record indicates that B & O belonged to the Association of American Railroads (AAR) and that this organization sponsored a medical and surgical section made up of various committees, one of which was the Committee on Occupational Diseases and Hazards. From 1932 to 1953 the President of the B & O was a member of the Board of Directors of the AAR and its Medical and Surgical Director represented the B & O at meetings of the Medical and Surgical Section. Annual minutes of the Committee on Occupational Diseases and Hazards revealed that between 1932 and 1953 there was discussion and an awareness of the fact that dust in the workplace may cause pulmonary disease.
In 1935, for example, the Committee's minutes made reference to a book published in the year 1717, which allegedly observed that pulmonary disease was common in persons engaged in dusty occupations. In 1932 and in several subsequent years, the Committee's minutes made recommendations for keeping dust out of the work area and protecting employees who must work in dust by having them wear inhalers. Thus, Dale asserts that nine years before he was even hired, B & O was or should have been
aware of the hazards of dust in the workplace. Finally, although asbestosis is not mentioned as a common problem in railroad work, the Committee's report in 1937 observes that "Silica, asbestos and lead are the principal substances generating toxic dusts to which railway employees may be exposed . . . .", and "We may accept as axiomatic that dust from whatever source, if in an excessive amount, is injurious."
Additionally, Dale introduced expert testimony concerning information which was available to the scientific and medical community from the 1930's through the 1960's concerning the dangers of asbestos exposure. Some of these studies concerned primary users (employees who worked with raw asbestos) and some concerned secondary users (employees who worked with products fabricated from asbestos), although no study dealt directly with pipefitters working on railroads. One study, however, published in 1947, did concern pipefitters working in naval shipyards during the war effort. That study stated:
A further factor in maintaining a low incidence of asbestosis is that in band saw cutting, grinding and cement mixing, only one or two men are involved and the work is usually done at infrequent intervals such as several times a week.
Finally, pipe coverers also apply glass wool, rock wool, magnesia and other types of nonasbestos insulation, all of which decreases the amount of exposure to asbestos dust. It seems likely to us that if the pipe coverers studied had worked steadily at any of the above operations where the amount of asbestos dust in the air was consistently high, the incidence of asbestosis among these workers would have been considerably greater. In view of the varied character of the environmental dust exposure in the pipe covering industry on naval vessels, it is manifestly impossible to set a threshold.
N.T. 167-67. From this one might extrapolate that although asbestosis was not frequent in the naval study, a reason for that might be ...