Goldstein Letter; and an affidavit signed by Dr. Goldstein reiterating his earlier conclusions.
45 U.S.C.A. § 51 subjects "common carriers by railroad" to liability in damages to employees suffering injury in the course of their employment when the injury resulted "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." 45 U.S.C.A. § 51. The traditional common law negligence elements of duty, breach, causation, and damages apply in a FELA action. Capriotti v. Consol. Rail Corp., 878 F. Supp. 429, 431 (N.D.N.Y. 1995) (citations omitted). Viewing the submissions within the traditional negligence framework indicates Walsh has satisfied his relatively light burden of pointing to evidence that Conrail acted negligently.
Under FELA, Conrail owed Walsh several different duties: " to exercise reasonable care in providing a reasonably safe place to work, reasonably safe conditions in which to work, and reasonably safe tools and equipment," Beeber v. Norfolk Southern Corp., 754 F. Supp. 1364, 1368 (N.D. Ind. 1990) (citation omitted); " not to aggravate known disabilities in an employee by negligently assigning that employee to work which reasonable men would realize might aggravate his disability," Massimiani v. Monongahela Railway Co., 339 F. Supp. 832, 833 (W.D. Pa. 1972); " to assign employees to work for which they are reasonably suited," Fletcher Union Pacific R.R. Co., 621 F.2d 902, 909 (8th Cir. 1980), cert. denied, 449 U.S. 1110, 101 S. Ct. 918, 66 L. Ed. 2d 839 (1981); (4) to perform physical examinations in accordance with the relevant standards of care, id. (citation omitted);
and " to provide a sufficient number of employees to perform assigned work." Beeber, 754 F. Supp. at 1372 (citation omitted).
The theory of Walsh's case implicates several of the beforementioned duties. Specifically, Walsh argues Conrail inadequately staffed its operations, resulting in a more strenuous work schedule; contracted with physicians who failed to properly evaluate and treat his hypertension; and required him to perform work beyond his capacity and aggravated his hypertension, a known disability.
"An employer breaches its duty to provide a safe work place when it knows or should know of a potential hazard in the work place, yet fails to exercise reasonable care to inform and protect its employees." Gallose v. Long Island R.R. Co., 878 F.2d 80, 84-85 (2d Cir. 1989). "The catalyst which ignites this duty is knowledge, either actual or constructive. Thus, an employer is not liable if it has no reasonable way of knowing that a potential hazard exists." Id. at 85 (citation omitted). See also Fletcher, 621 F.2d at 909 (finding railroad breaches duty to assign employees to work for which they are reasonably suited when it negligently assigns an employee to perform work beyond his capacity; the employee need not show malpractice by the examining physician). Walsh can point to evidence that Conrail breached duties it owed to him as a Conrail employee.
The Goldstein Letter states that Conrail knew of Walsh's hypertension and failed to properly treat it. According to the Goldstein Letter, Conrail qualified Walsh for work in spite of this disability. Specifically,
Mr. Walsh was known to be hypertensive by the Conrail physicians, yet his medical condition was ignored . . . . There were multiple such entries within the Conrail Medical records of elevated hypertensive blood pressure, all of which unfortunately were ignored and the obvious consequences ensued . . . . Despite Mr. Walsh being a hypertensive and not being referred for therapy, counseling, or further diagnostics, Mr. Walsh was fully qualified and required to work at full capacity at Conrail.