Wrongful Death In Pursuant To The Federal Employers' Liability Act

In this action, originally for negligence, and later amended to wrongful death, pursuant to the Federal Employers' Liability Act (45 USC § 51 et seq. [FELA]), plaintiff alleges that [*2]defendants failed to provide decedent with a safe work environment and that defendants' unsafe work environment caused decedent's demise (motion, exhibit F, plaintiff's bill of particulars). Plaintiff claims, in the bill of particulars, that decedent, a retired employee of defendant Long Island Railroad (LIRR),

"was exposed to various toxic substances resulting in pulmonary disorders and liver cancer, including but not limited to asbestos, diesel fumes, burning and welding fumes, various dusts, cleaning solvents, de-greasing agents, aliphatic hydrocarbons, silicates, butyl acetone, tolune, acolated naptha, phoxyethylamine, trichloroethylene, perchloroethylene, carbon tetrachloride, mineral spirits, benzene, and herbicides on numerous occasions during the course of his employment from December, 1967 through May, 1984 [sic]."

Prior to working for defendant LIRR as a car repairman and welder, decedent performed related work for the Erie-Lackawana Railroad or its predecessors from April 1951 to November 1967 (motion, exhibit F, plaintiff's bill of particulars). Decedent, in his examination before trial (motion, exhibit N, at 59-60), admitted to smoking about one pack of cigarettes a day for 15 years. Decedent was diagnosed with hepatitis C and cirrhosis of the liver in 1994, and was diagnosed with liver cancer in 1997. Mr. Pappalardo died on March 8, 2002 (motion, exhibit J, death certificate).

Plaintiff will get her day in court, at trial, to prove if her father's exposure to hazardous materials and the failure of defendants to provide a safe work environment contributed to her father's demise.

Conclusion
Accordingly, it is ordered that the motion of defendants to dismiss the Metropolitan Transportation Authority as a defendant and for summary judgment and dismissal of plaintiff's action is denied; and it is further ordered that the cross motion of plaintiff for partial summary judgment on the issue of liability is denied.

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http://www.nycourts.gov/reporter/3dseries/2006/2006_26044.htm