POOLE v. CONSOLIDATED RAIL CORPORATION (1997)

Plaintiff, as administratrix of the estate of David L. Poole (decedent), seeks to recover damages from defendant, Consolidated Rail Corporation (Conrail), pursuant to the Federal Employers' Liability Act (FELA) for decedent's personal injuries and wrongful death allegedly resulting from a work-related accident that occurred in August 1985.   At trial, plaintiff presented evidence that decedent fell from a wooden ladder while working on a gondola car, and that, as a result of that fall, decedent sustained a herniated disk, nerve root compression, radiculopathy and sexual impotence.   The proof at trial further established that, in the fall of 1991, decedent was diagnosed with leukemia and he died of that disease in October 1992.

To establish Conrail's liability for wrongful death, plaintiff sought to prove that the physical and emotional suffering decedent endured after the accident destroyed his will to live and that, as a consequence, decedent decided to forego a bone marrow transplant, a potentially lifesaving treatment for his leukemia.   The jury returned a verdict finding Conrail liable for wrongful death and awarded plaintiff $1 million in damages on that cause of action.   The jury also awarded plaintiff $2 million for decedent's pain and suffering and $263,908 for medical expenses, loss of earnings and household services.

 We modify the judgment by dismissing the wrongful death cause of action and vacating the award of damages entered thereon.   The proof fails to establish that decedent's death from leukemia was a reasonably foreseeable consequence of Conrail's negligence in failing to provide a safe workplace (see, Sullivan v. Welsh, 132 A.D.2d 945, 946, 518 N.Y.S.2d 274, appeal dismissed 70 N.Y.2d 796, 522 N.Y.S.2d 112, 516 N.E.2d 1226;  see generally, Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 314-316, 434 N.Y.S.2d 166, 414 N.E.2d 666, rearg. denied 52 N.Y.2d 784, 436 N.Y.S.2d 622, 417 N.E.2d 1010, 52 N.Y.2d 829, 437 N.Y.S.2d 1030, 418 N.E.2d 694).  “Even under the ‘low and liberal’ standard applicable to FELA cases (Smith v. National R.R. Passenger Corp., 856 F.2d 467, 469 [2d Cir.1988] ), plaintiff's evidence is insufficient as a matter of law, without total speculation (Atchison, Topeka & Santa Fe Ry. Co. v. Toops, 281 U.S. 351, 355, 50 S.Ct. 281, 283, 74 L.Ed. 896), to permit the inference that any negligent act or omission on Conrail's part caused” decedent's death (Curley v. Consolidated Rail Corp., 81 N.Y.2d 746, 748, 593 N.Y.S.2d 772, 609 N.E.2d 125, rearg. denied 81 N.Y.2d 835, 595 N.Y.S.2d 397, 611 N.E.2d 298, cert. denied 508 U.S. 940, 113 S.Ct. 2415, 124 L.Ed.2d 638).

 In view of our dismissal of the wrongful death cause of action, we do not address Conrail's contentions that Supreme Court erred in its evidentiary rulings and its charge to the jury relating to that cause of action.   We reject the contentions that the conduct of plaintiff's counsel during the presentation of evidence and summation deprived Conrail of a fair trial (cf., Rohring v. City of Niagara Falls, 192 A.D.2d 228, 231, 601 N.Y.S.2d 740, affd. 84 N.Y.2d 60, 614 N.Y.S.2d 714, 638 N.E.2d 62);  that the court improperly instructed the jury with respect to mitigation and apportionment of damages;  and that the award of damages for pain and suffering is “so high as to shock ‘judicial conscience’ ” (Schneider v. National R.R. Passenger Corp., 987 F.2d 132, 137 [2d Cir.1993];  see, Batchkowsky v. Penn Cent. Co., 525 F.2d 1121, 1124 [2d Cir.1975] ).

Judgment unanimously modified on the law and as modified affirmed without costs.

MEMORANDUM: