The opinion of the court was delivered by: David Stewart Cercone United States District Judge
Plaintiff, Gerald B. Kelley ("Kelley" or "Plaintiff"), filed a complaint seeking relief based on negligence and violations of Federal Employers Liability Act, 45 U.S.C. § 51, et seq. ("FELA"), against Defendant, CSX Transportation, Inc. ("CSX" or "Defendant"). In his complaint, Plaintiff has set forth nine (9) separate counts against the Defendant as follows: (1) violation of local, state and/or federal law, including but not limited to the Federal Employers Liability Act; (2) failure to provide Plaintiff with a reasonably safe place to work; (3) failure to provide Plaintiff with adequate assistance to perform his duties; (4) negligently requiring Plaintiff to perform his assigned duties under unsafe conditions; (5) failure to provide Plaintiff with adequate, effective and efficient instructions, and/or time to carry out his duties; (6) failure to provide Plaintiff with safe and adequate equipment to perform his assigned duties; (7) failure to routinely and regularly inspect and repair equipment and machinery designed and/or purchased by Defendant for the purpose, in whole or in part, of reducing or eliminating the manual dexterity required of its employees, including Plaintiff, in the performance of their work duties; (8) failure to provide proper ear protection and testing; (9) and failure to use due care and caution under the circumstances.
CSX has filed a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Responses have been filed, and the motion is now before the Court.
II. STATEMENT OF THE CASE
Kelley began his railroad career with the B & O Railroad ("B & O") in September of 1968 in the Maintenance of Way Department. (Kelley's Deposition Testimony at Exhibit "B," hereinafter "Kelley Dep." p. 25). Sometime thereafter, B & O underwent a merger and became Chessie Systems. Id.. During his time with both B & O and Chessie, Kelley worked as a trackman, mechanic, and welder. Id. Sometime in the '90s, Chessie Systems was merged into CSX, and Kelley began working as a vehicle operator for CSX. (Kelley Dep.pp. 25-26, 35). Plaintiff retired with CSX on February 2, 2002. (Kelley Dep. p. 4).
Plaintiff alleges that as a result of CSX's negligence, he has suffered damages to his hands, neck, cervical spine, left knee, low back and lumbar spine, neck, hips, shoulders, and has suffered hearing loss. (Kelley Dep. p. 6). Kelley also contends he experienced symptoms of nervousness, depression, and anxiety sometime in the '80s because of the many railroad mergers and the resulting job insecurity. (Kelley Dep.pp. 21-22).
Plaintiff first noticed symptoms of pain in his extremities (arms, fingers, and shoulders) in the late '70s. (Kelley Dep.pp. 13-14). Kelley knew that these symptoms were work related, but failed to seek medical attention. (Kelley Dep. p.14). Plaintiff also testified that he recalled seeing an article in a union bulletin in early 1990 or 1991 warning about repetitive motion, vibration, and carpal tunnel. (Kelley Dep.pp. 257-258). Moreover, prior to 1995, Kelley knew something was wrong, because, as a result of his use of a Matwell hydraulic tamping tool, he was unable to grip properly. (Kelley Dep.pp. 133-134). In or around 1995, at the request of a law firm, Kelley was tested for carpal tunnel syndrome, which confirmed that he had mild to moderate carpal tunnel syndrome. (Kelley Dep.pp. 243-246).
Plaintiff testified that he first noticed pain in his neck and back in the late 1970's. (Kelley Dep.pp. 18-19). He associated the pain with the heavy lifting required of his job.
(Kelley Dep. p. 19). He sought medical attention at Uniontown Hospital on May 3, 1984, and was diagnosed with an acute low back strain; in reality, it was a bulged disc, which was not identified until 1986. (Kelley Dep. p. 176). From the onset of these injuries, Kelley continued to suffer from back and neck pain. Id. Plaintiff's last reported back injury was in the late 1980's or early 1990's. (Kelley Dep. p.129).
In the late 1970's or early 1980's, Kelley alleges that he was injured in the course of his employment when he slipped and hit his left knee against a railroad tie. (Kelley Dep. p.9). Plaintiff sought treatment at Mercy Hospital, but claims he never received a diagnosis. (Kelley Dep. p. 10). As a result of this incident, Kelley contends that he has suffered from pain in his knee ever since the injury. Id. Kelley further testified that he experienced pain in his hips beginning in the '80s, which he believed was also work related. (Kelley Dep. p.230). Because of the pain in his hips, Kelley saw Dr. Hasouni sometime before 1999, and he diagnosed Plaintiff with arthritis in his hip and spine. Id.
The first instance of noise exposure that Kelley recalled was in 1970, when he was working without hearing protection on an anti-creeper machine with a motor sitting right next to his left ear. (Kelley Dep. p.266). Plaintiff testified that he never wore ear protection when working on the yard gang, even if he was working next to a loud, diesel engine. (Kelley Dep. p. 268). Plaintiff first noticed ringing in his ears and hearing loss in the 1980's, which he believed was the result of exposure to excessively loud noises during the course of his employment with the railroad. (Kelley Dep. p.287). Kelley testified that he recalled seeing hearing protection safety bulletins posted as far back as the early '90s. (Kelley Dep. p.259). He also admits that he was given instruction on how to wear ear plugs, but contends he did not wear them around high noise levels all the time. (Kelley Dep. p.293). In 1993, Plaintiff underwent a hearing exam given by his employer. (Kelley Dep. p.291). He was notified that his hearing was getting worse and was advised to see a doctor. (Id.).
In 1999, Kelley was involved in a motor vehicle accident while driving in a CSX vehicle. (Kelley Dep. p.227). He testified that he sustained injuries to his left hand, fingers, wrist, neck, and shoulder. (Kelley Dep. p.228). Plaintiff sued the other driver, and the case was ...