COFFIN v. AMETEK INC

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

VICTOR COFFIN, an individual, and )

VICTOR COFFIN, as Personal )

Representative of the Estate of )

LINDA COFFIN, deceased, )

)

Plaintiff, )

)

v. ) Docket No. 2:18-cv-472-NT

)

AMETEK, INC., et al., )

)

Defendants. )

ORDER ON DEFENDANT’S MOTION

FOR SUMMARY JUDGMENT

Plaintiff Victor Coffin alleges that he was exposed to asbestos and that as a

result he developed malignant mesothelioma. Since the commencement of this case,

the Plaintiff has voluntarily dismissed or settled his claims against all Defendants

except Defendant Maine Central Railroad (“MCRR”), for whom he worked for several

years as a bridge operator at the Carlton Bridge. See ECF Nos. 32, 39, 65, 119. MCRR

now moves for summary judgment on the one count remaining against it. (ECF No.

115). For the reasons set forth below, the Defendant’s motion is DENIED.

BACKGROUND1

I. Asbestos Generally

“Asbestos is the name given to a group of naturally occurring minerals that are

resistant to heat and corrosion.” Occupational Safety & Health Admin., Asbestos

1 This background is drawn from the Defendant’s Supporting Statement of Material Facts (ECF

No. 116), the Plaintiff’s Amended Opposing Statement of Material Facts (ECF No. 124), Defendant’s

(ECF No. 121-9). Construction materials containing asbestos were commonly used in

buildings constructed before 1970, and much of that material still remains in place.

Pl.’s Resp. to Def.’s Requests to Strike (“SOF”) ¶ 33 (ECF No. 127). Over time, more

and more has become known about asbestos and its hazards. By 1930, asbestos was

known to be a hazard and to cause asbestosis.2 SOF ¶ 66. By 1949, the relationship

between asbestos exposure and lung cancer was generally accepted, and by 1965, the

knowledge that asbestos could cause mesothelioma was widespread, though

uncertainties about asbestos hazards still remained. SOF ¶¶ 30, 66. So long as

asbestos remains within the building material, it is not likely to be ingested into

someone’s lungs and does not pose an active risk. SOF ¶ 34.

II. MCRR’s Use of Asbestos-Containing Products

Between 1930 and 1982, MCRR used asbestos-containing products throughout

the MCRR system, including asbestos roll, rolled asbestos, handhold gaskets (folded

asbestos), asbestos “mud,” handhold gasket (asbestos jacket), asbestos rope, asbestos

mittens, asbestos pipe coverings, and asbestos transite board. SOF ¶ 51; see also SOF

¶ 53 (“MCRR carpenters were installing asbestos transite board on at least one bridge

in the mid-1960s.”). During that time, MCRR’s carpenter crews cut asbestos-

containing products with handsaws. SOF ¶ 55. As late as 1982, MCRR was

Reply Statement of Material Facts (ECF No. 125), and Plaintiff’s Response to Defendant’s Requests to

Strike (ECF No. 127) (collectively “SOF”). Additional facts are drawn directly from the Local Rule

56(h) Record (ECF Nos. 113-1 to 113-11) and the Supplement Local Rule 56(h) Record (ECF Nos. 121-

1 to 121-14 and 123) (collectively the “Record”).

2 MCRR denies paragraph 66, citing to its own statement of fact at paragraph 30. SOF ¶ 66. But

paragraphs 30 and 66 are not in conflict. Paragraph 30 merely states that Mr. Coffin’s expert

“acknowledges that as of 1972 there was [sic] ‘lots of uncertainties’ around guidance to employers about

asbestos exposure in the workplace.” SOF ¶ 30.

purchasing asbestos in 100-foot-long rolls. SOF ¶ 52. However, that same year,

MCRR discontinued use of asbestos-containing products and began a program of

asbestos removal. SOF ¶¶ 23, 54. In 1984, MCRR began to monitor levels and

amounts of asbestos materials in its facilities during its asbestos removal. SOF ¶ 56.

Despite these efforts, asbestos-containing products continued to exist at its facilities,

including the Carlton Bridge. SOF ¶¶ 16, 39.

Evidence in the Record suggests that railroads, including MCRR, were aware

of hazards associated with the inhalation of asbestos dust decades ago.3 In 1937, E.S.

French, President of MCRR and the Boston & Maine Railroad, was a member of the

Board of Directors of the Association of American Railroads (“AAR”).4 SOF ¶ 35. At

that time, members of the AAR were aware that asbestos was one of three “principal

substances generating toxic dusts to which railway employe[e]s may be exposed” and

that asbestosis is “strictly” a dust disease only contracted by breathing asbestos dust.

SOF ¶ 36; Med. & Surgical Section, Proceedings of the Seventeenth Annual Meeting

3 Mr. Coffin did state at his deposition that he was not aware of any information that MCRR

had any knowledge of the hazards of asbestos at the time of his employment. SOF ¶ 17. The parties

quibble over the details of this factual statement, see SOF ¶ 17, but I find that there is other evidence

in the Record that MCRR knew about—or likely should have known about—the general hazards of

asbestos at that time, see SOF ¶¶ 35–36. Neither party convincingly explains the relevancy of Mr.

Coffin’s awareness of MCRR’s knowledge at that time.

4 MCRR requests to strike paragraphs 35 through 39, stating that it “objects to [these]

statement[s] because [they are] not supported by . . . valid record citation[s], lack[] foundation, and

[are] hearsay.” SOF ¶¶ 35–39. However, the Plaintiff provides a citation to the supplemental record

for each of these paragraphs and provides authority to support inclusion of them. See Local Rule 56(h)

Pre-filing Conference Report & Order 2 (ECF No. 112) (“If during the motion practice any party

determines that they need to supplement the record, they may file a supplemental record . . . .”).

MCRR, on the other hand, offers no authority or citation to support its position that the statements

should be stricken or to support its denial of the statements. Thus, the requests to strike are denied,

and I have considered the statements admitted for the purposes of this motion. See D. Me. Loc. R.

56(c), (f).

of the Ass’n of Am. R.Rs. 20, 22 (June 7–8, 1937) (“1937 AAR Proceedings”), Record

#2724–25 (ECF No. 121-1). Moreover, in 1937, members of the AAR were informed of

methods to protect their employees from asbestos dust by means of “ventilating

systems,” “[s]ubstituting non-poisonous materials for those known to be poisonous,”

“protective equipment furnished [to] the individual employe[e],” and simple “good

housekeeping.” SOF ¶ 36; 1937 AAR Proceedings 21–22, Record #2724–25.

Despite these facts, MCRR did not have a medical program before 1977, did

not communicate the hazards of asbestos to its employees before 1982, and did not

employ an industrial hygienist until 1985. SOF ¶¶ 57–59. The first claims of any

nature filed by employees against MCRR that alleged asbestos-related injuries were

four actions commenced on January 8, 1985. SOF ¶ 24. Up until that point, MCRR

did not know if workers exposed to asbestos had a statistically higher risk of

contracting mesothelioma. SOF ¶ 60. Moreover, at that time, MCRR did not

acknowledge the causal link between the inhalation of asbestos fibers or dust and the

diseases of asbestosis, lung cancer, and mesothelioma. SOF ¶ 62.

III. Mr. Coffin’s Alleged Exposure to Asbestos at the Carlton Bridge

The Carlton Bridge, which spans the Kennebec River between Bath and

Woolwich, was built under the supervision of the Maine Department of

Transportation (“MDOT”) and was completed in 1929. Dep. of Victor Coffin Vol. I,

Sept. 17, 2018, 87:10–13, Record #1425 (ECF No. 113-1); Def.’s Answers to

Interrogatories Directed to Def. MCRR by Pl. 2, Record #2611 (ECF No. 113-9). From

1926 until 1986, MCRR had an interest in the Carlton Bridge, whether as a joint

owner, lessee, or otherwise, including a 50-year period during which MCRR operated

and maintained the bridge. SOF ¶¶ 1, 49; see also SOF ¶ 8 (stating MDOT took over

operation of the bridge in 1987). For most of Mr. Coffin’s employment with MCRR,

MCRR was 100 percent responsible for the maintenance of the bridge’s railroad track

structure, lift span machinery, signaling, and bridge operators. SOF ¶ 50. MCRR is

unaware of any modifications or changes made to the original construction of the

control room.5 SOF ¶ 1.

In the summer of 1967, Mr. Coffin began working for MCRR as an Assistant

Drawbridge Operator in the Signal Department at the Carlton Bridge. SOF ¶ 2. He

served in that position for six months before joining the Navy in December of 1967,

SOF ¶ 2, and his duties included keeping the engine room, operating room, and

battery room clean at all times, SOF ¶ 37.

After returning from the Navy in 1971, Mr. Coffin went back to work for

MCRR. SOF ¶¶ 3–4. For the first four to six weeks, he worked at the Waterville Shops

in Waterville, Maine, doing electrical work in the facility, including installing

fluorescent lighting; running conduit and installing wiring for a Coke machine;

climbing poles; and replacing outside lighting. SOF ¶ 3. Mr. Coffin then returned to

the Carlton Bridge in late 1971 and worked at the bridge until 1987, with periods of

furlough for three to four months each winter. SOF ¶¶ 4–5. Mr. Coffin worked as an

operator of the bridge and spent approximately 85–90 percent of his time in the

5 In paragraph 1, MCRR asserts that it “made no modifications or changes to the original

construction of the control room.” SOF ¶ 1. Mr. Coffin denies this statement and requests to strike it.

A review of the Record shows that the more precise statement is that MCRR “is unaware” of any such

modifications or changes. Def.’s Answers to Interrogatories Directed to Def. MCRR by Pl. 2, Record

#2611 (ECF No. 113-9).

control room.6 SOF ¶¶ 6, 65. He spent the remainder of his time in the machine shop

and the engine room. SOF ¶ 65. Mr. Coffin’s job involved routine maintenance and

operation of the bridge, which included greasing, maintenance of the equipment, and

cleaning. SOF ¶ 7. Generally speaking, he spent the majority of his time during this

timeframe in the control room watching ship traffic and raising and lowering the

bridge. SOF ¶ 7. In September of 1987, when MDOT took over operation of the

Carlton Bridge, it made Mr. Coffin the Chief Bridge Operator. SOF ¶ 8.

It is undisputed that asbestos-containing products were present at the Carlton

Bridge. SOF ¶¶ 38–39. As of 2000, MDOT specified the removal of asbestos in the

“control house” and “storage shed” of the Carlton Bridge, as well as “transite panels

and floor boards, sheathing and insulation” in its “machinery house.” SOF ¶ 38. In

2001, New Meadows Abatement, Inc., removed thirteen cubic yards (351 cubic feet)

of friable and non-friable asbestos from the Carlton Bridge. SOF ¶ 39. However, the

parties dispute whether Mr. Coffin was exposed to asbestos at the bridge and, as the

focus of this motion, whether such exposure was foreseeable.

Mr. Coffin claims that he was exposed to asbestos contained in the walls of the

control room, engine room, machine shop, and operating room of the drawbridge. SOF

¶ 9. The control room was made up of individual panels with a one-inch strip of trim

covering each of the seams. SOF ¶ 10. This type of construction is consistent with the

6 MCRR denies and requests to strike paragraph 65, arguing that Mr. Coffin “failed to cite to

the record” and instead “has identified records from another matter [in] which [MCRR] was not

involved.” SOF ¶ 65. This request to strike is denied because Mr. Coffin has cited to a document in the

Record and MCRR has given no reason why this prior testimony cannot be considered for summary

judgment purposes.

typical use of cement wall panels, even to this day, where control joints (sometimes

referred to as expansion joints) are used to account for potential expansion under

various weather conditions and possible vibration and thereby avoid physical damage

to the rigid panels. SOF ¶ 11; see also SOF ¶ 15 (stating that asbestos-containing

board “was common in building material used for decades”). The walls of the Carlton

Bridge control room were smooth and had been painted several times. SOF ¶¶ 10, 13.

MCRR avers that the maintenance of the physical integrity of the various rooms of

the Carlton Bridge demonstrates that the control joints were effective in achieving

their intended purpose. SOF ¶ 12; see also SOF ¶ 15 (MCRR stating that, due to the

“immobilization and encapsulation of fibers,” asbestos-containing board “was not, and

still is not, considered to pose a health risk except when it is cut or demolished”).

Mr. Coffin disputes this point.7 SOF ¶ 12. He recounts that the Carlton Bridge

would “violently” shake when trains passed over it. SOF ¶ 46. Even the passage of

7 MCRR requests to strike Mr. Coffin’s response to paragraph 12, asserting that he “attempts

to create a controversy of fact where there is none” and cites to material outside the Record. SOF ¶ 12;

see also SOF ¶ 48. Mr. Coffin’s response cites to testimony he gave in a proceeding before the Maine

Workers’ Compensation Board, two days after he was deposed by MCRR. MCRR argues that Mr. Coffin

cannot rely on the later testimony when it is contrary to clear answers he gave to unambiguous

questions in discovery. SOF ¶ 12 (citing Escribano-Reyes v. Pro. Hepa Certificate Corp., 817 F.3d 380,

386 (1st Cir. 2016)). In Escribano-Reyes, the First Circuit held that the district court did not abuse its

discretion in striking a sworn statement by the plaintiff that was inconsistent with prior statements

and was signed after the defendant moved for summary judgment. 817 F.3d at 386–87. The First

Circuit described the stricken statement as an “eleventh-hour filing” and stated that the plaintiff

offered “no satisfactory explanation for the inconsistencies.” Id. at 387. Here, Mr. Coffin testified before

the Workers’ Compensation Board weeks before he filed this case and more than two years before

MCRR moved for summary judgment. Thus, this subsequent testimony does not appear to be an effort

to “mov[e] [the] target.” See Hernandez-Loring v. Universidad Metropolitana, 233 F.3d 49, 54–55 (1st

Cir. 2000). And, as Mr. Coffin points out, the initial response stating that he saw no dust was made

towards the end of two days of questioning, raising the possibility that his answers were the “product

of fatigue or a ‘lapse of memory.’ ” SOF ¶ 48; see also Hernandez-Loring, 233 F.3d at 54–55 (explaining

that satisfactory explanations can include lapses in memory and new information and can depend on

the district court’s assessment of specific facts). I also note that, even in the earlier deposition, Mr.

Coffin recalled having to clean up visible dust when a section of wall board was replaced in the

maintenance shop at the bridge. Dep. of Victor Coffin Vol. II, Sept. 18, 2018, 330:21–22, 331:04–05,

heavy trucks made the bridge shake. SOF ¶ 46. Mr. Coffin recalls working at the

bridge during “a couple of hurricanes” when “everything just rocked and rolled and

shook.” SOF ¶ 46. According to Mr. Coffin, when the bridge shook, the asbestos wall

panels of the control room rubbed together.8 SOF ¶ 47. Mr. Coffin has given

conflicting testimony on whether he saw visible dust when the wall panels shook and

rubbed together. In one instance, Mr. Coffin testified that he saw such dust on the

seams between the wall panels, could see dust in the air, and had the responsibility

of sweeping dust from the floors. SOF ¶ 48. In another, Mr. Coffin indicated that he

never saw dust emanate from the movement of the panels. SOF ¶ 12. Although Mr.

Coffin did not become aware that there was asbestos in the control room or other

walls at the Carlton Bridge until after MDOT took over operation of the bridge and

he no longer worked there, he now has “no doubt” that he was exposed to asbestos

dust while he was in the operating room as the bridge shook. SOF ¶¶ 19, 47; see also

SOF ¶ 189 (noting that Mr. Coffin stated that, while working at the bridge, he had no

Record #1697–98 (ECF No. 113-2). Thus, for purposes of this motion, I will consider Mr. Coffin’s

testimony from the Workers’ Compensation Board proceeding, and MCRR’s request to strike Mr.

Coffin’s response to paragraph 12 and request to strike paragraph 48 are denied. Any conflict in

testimony can be assessed by the jury at trial.

8 MCRR denies this statement, arguing that it “is not supported by the record citation.” SOF

¶ 47. However, at the cited portion of Mr. Coffin’s deposition, Mr. Coffin states that, when the bridge

shook, “you could just see [the wall panels] moving . . . [a]nd then I’m thinking, wow, that stuff rubbing

together.” Dep. of Victor Coffin Vol. II, Sept. 18, 2018, 356:01–9, Record #1723. Although this testimony

is not perfectly clear, it provides enough support for the Plaintiff’s statement of fact.

9 MCRR requests to strike Mr. Coffin’s response to this paragraph, asserting that it “fail[s] to

effectively controvert” the statement of fact. SOF ¶ 18. Although Mr. Coffin’s response could be

construed more as a qualification than a denial, this request to strike is denied because the response

is supported by the Record.

concerns about asbestos exposure). Mr. Coffin is not aware if any of his MCRR

coworkers contracted mesothelioma. SOF ¶ 20.

MCRR maintains that it was never aware of the existence of asbestos at the

Carlton Bridge during the period that it operated and maintained the bridge. SOF

¶ 16. To bolster this point, MCRR points to a January 1984 inspection of the bridge

by representatives from MDOT, MCRR, and the Bureau of Labor Standards. SOF

¶ 21. The inspection found very few items of concern at the bridge. SOF ¶ 22. Within

the “Operator’s Room,” the inspectors noted an electrical panel with exposed electrical

connections, but the inspection memorandum did not note any damage or

deterioration of the internal wall panels or mention the possibility of potential

exposure to asbestos for occupants. SOF ¶ 22. MCRR states that it only became aware

that asbestos products were present in the control room when independent

contractors, hired by MDOT, made such a determination in approximately 2000. SOF

¶ 16.

IV. Procedural Background

Mr. Coffin filed suit in November 2018, bringing six claims against several

defendants. Compl. (ECF No. 1). The only remaining defendant is MCRR, and Mr.

Coffin’s only remaining claim arises under the Federal Employers’ Liability Act

(“FELA”). As part of that claim, Mr. Coffin asserts that MCRR failed to provide him

with a reasonably safe place to work, conduct any testing for asbestos in his work

area, warn him of the dangers posed by inhaling asbestos, or provide him with

sufficient safety apparel and equipment. Compl. ¶ 39.

MCRR moved for summary judgment on October 30, 2020, asserting that Mr.

Coffin cannot prove that it was foreseeable to MCRR that Mr. Coffin would be exposed

to harmful levels of asbestos during his employment at the Carlton Bridge. Def.

MCRR’s Mot. Summ. J. (“Def.’s Mot.”) 7–9 (ECF No. 115). Even if it could have

known that the bridge walls contained asbestos, MCRR argues that, under the

industrial standards of the time, MCRR had no reason to believe that there would be

harmful exposures to him at the bridge, noting that no similar injuries have been

reported in the scientific literature. Def.’s Mot. 10–11.

LEGAL STANDARD

Summary judgment is appropriate when “there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). A dispute is genuine if a rational factfinder could resolve it in favor of either

party, Feliciano-Muñoz v. Rebarber-Ocasio, 970 F.3d 53, 62 (1st Cir. 2020), and a fact

is “ ‘material’ if its existence or nonexistence has the potential to change the outcome

of the suit,” Rando v. Leonard, 826 F.3d 553, 556 (1st Cir. 2016) (quoting Borges ex

rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010)). The party moving for

summary judgment bears the initial burden of showing that no such genuine dispute

exists. Feliciano-Muñoz, 970 F.3d at 62. Once it does so, “the burden shifts to the

nonmoving party . . . to demonstrate that a trier of fact reasonably could find in his

favor” with respect to each issue on which he bears the burden of proof. Woodward v.

Emulex Corp., 714 F.3d 632, 637 (1st Cir. 2013) (quoting Hodgens v. Gen. Dynamics

Corp., 144 F.3d 151, 158 (1st Cir. 1998)). In considering a motion for summary

judgment, I must construe the record in the light most favorable to the nonmovant,

drawing all reasonable inferences in his favor. Robinson v. Town of Marshfield, 950

F.3d 21, 24 (1st Cir. 2020). But I need not credit “conclusory allegations, improbable

inferences, and unsupported speculation.” Doe v. Trs. of Bos. Coll., 892 F.3d 67, 92–

93 (1st Cir. 2018) (quoting LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 842 (1st Cir.

1993)).

FELA creates a cause of action for railroad employees who are injured while at

work due in any part to “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

equipment].” 45 U.S.C. § 51. Under FELA, a railroad owes its “employees a

nondelegable duty to use reasonable care in furnishing them with a safe place to

work.” Dykes v. BNSF Ry. Co., 356 F. Supp. 3d 1097, 1100 (W.D. Wash. 2018) (citing

Shenker v. Baltimore & O. R. Co., 374 U.S. 1, 7 (1963)). FELA has been characterized

as “a broad remedial statute” and “has generally been given a liberal construction.”

Huff v. Mass. Bay Commuter R.R. Co., Case No. 18-cv-10623-DJC, 2019 WL 5394174,

at *3 (D. Mass. Oct. 22, 2019) (citing Robert v. Consol. Rail Corp., 832 F.2d 3, 6 (1st

Cir. 1987)). But, because FELA does not impose strict liability, a plaintiff must still

“prove the traditional common law elements of negligence—duty, breach, damages,

causation, and foreseeability.” Stevens v. Bangor & Aroostook R.R. Co., 97 F.3d 594,

598 (1st Cir. 1996); see also Borger v. CSX Transp., Inc., 571 F.3d 559, 563 (6th Cir.

2009).

Courts have repeatedly emphasized that FELA’s purpose cautions against

removing a FELA case from the jury except in the rarest of circumstances. See Rogers

v. Mo. Pac. R.R. Co., 352 U.S. 500, 509 (1957) (“Cognizant of the duty to effectuate

the intention of the Congress to secure the right to a jury determination, this Court

is vigilant to exercise its power of review in any case where it appears that the

litigants have been improperly deprived of that determination.”). The Third Circuit

has held that a “trial court is justified in withdrawing . . . issue[s] from the jury’s

consideration only in those extremely rare instances where there is a zero probability

either of employer negligence or that any such negligence contributed to the injury of

an employee.” Hines v. Consol. R.R. Corp., 926 F.2d 262, 268 (3d Cir. 1991)

(alterations in original) (emphasis added) (quoting Pehowic v. Erie Lackawanna R.R.,

430 F.2d 697, 699–700 (3d Cir. 1970)). Other courts have stated that “awarding

summary judgment to the defendant railroad is appropriate ‘only when there is a

complete absence of probative facts’ to support a jury verdict in the plaintiff’s favor.”

Gray v. Ala. Great S. R.R. Co., 960 F.3d 212, 216 (5th Cir. 2020) (emphasis added)

(citing Lavender v. Kurn, 327 U.S. 645, 653 (1946)); see also Standard v. Union Pac.

R.R. Co., No. 98-7134, 1999 WL 992973, at *2–3 (10th Cir. 1999) (applying “complete

absence of probative facts” standard and reversing summary judgment for

defendant); Lager v. Chi. Nw. Transp. Co., 122 F.3d 523, 524–25 (8th Cir. 1997)

(applying “complete absence of probative facts” standard in summary judgment

context but finding plaintiff failed to meet that low burden). Courts in the Second

Circuit have held that a FELA case should not be dismissed at the summary

judgment phase “unless there is absolutely no reasonable basis for a jury to find for

the plaintiff.” Monington v. CSX Transp., Inc., No. 1:10-cv-1553 GLS/RFT, 2012 WL

716285, at *3 (N.D.N.Y. Mar. 6, 2012) (emphasis added) (quoting Gadsden v. Port

Auth. Trans–Hudson Corp., 140 F.3d 207, 209 (2d Cir. 1998)); see also Smith v.

Consol. Rail Corp., No. 95–3727, 1996 WL 366283, at *3 (6th Cir. 1996) (“If the

plaintiff presents no evidence whatsoever to support the inference of negligence, the

railroad’s summary judgment motion is properly granted.”).

Although the First Circuit has not specified which standard it applies, it too

has recognized the “low threshold for proving fault on the employer’s part (and, thus,

a low threshold for liability)” under FELA. Butynski v. Springfield Terminal Ry. Co.,

592 F.3d 272, 276 (1st Cir. 2010). Moreover, at least one district court in the First

Circuit has applied the “absolutely no reasonable basis” standard at the summary

judgment stage. See Meachen v. Iowa Pac. Holdings, LLC, Civil No. 13-CV-11359-

LTS, 2016 WL 7826660, at *3 (D. Mass. Feb. 10, 2016) (applying standard in

assessing plaintiff’s showing of foreseeability).

DISCUSSION

In its motion for summary judgment, MCRR only asserts that Mr. Coffin has

failed to establish the foreseeability element of his FELA claim. The Supreme Court

has emphasized that “[r]easonable foreseeability of harm . . . is indeed an essential

ingredient of FELA negligence.” CSX Transp., Inc. v. McBride, 564 U.S. 685, 703

(2011) (internal quotations omitted and emphasis deleted). As such, “if a person has

no reasonable ground to anticipate that a particular condition would or might result

in a mishap and injury, then the party is not required to do anything to correct the

condition.” Id. (internal quotations omitted). But if negligence is proved “and is shown

to have played any part, even the slightest, in producing the injury, then the carrier

is answerable in damages even if the extent of the injury or the manner in which it

occurred was not probable or foreseeable.” Id. at 703–04 (emphasis deleted) (internal

quotations and citation omitted); see also Abernathy v. E. Ill. R.R. Co., 940 F.3d 982,

989–90 (7th Cir. 2019). As with other elements of a FELA claim, an employer’s

“knowledge, actual or constructive, of the alleged inadequacies of the [employer’s]

equipment [is] a jury question.” Urie v. Thompson, 337 U.S. 163, 178 (1949); see also

Burckhard v. BNSF Ry. Co., 837 F.3d 848, 853–54 (8th Cir. 2016) (per curiam)

(emphasizing that foreseeability is a factual question rather than a legal one).

MCRR advances several arguments as to why it was not foreseeable that Mr.

Coffin would be exposed to harmful levels of asbestos at the Carlton Bridge: (1) MCRR

emphasizes that it was not aware that there was asbestos within the wallboards of

the Carlton Bridge until years after Mr. Coffin’s employment with MCRR ended; (2)

MCRR asserts that the condition of the wallboards at the bridge gave MCRR no

reason to believe that asbestos dust would escape encapsulation at any harmful

levels; and (3) MCRR states that, based on the industrial standards and

understanding of asbestos at the time, MCRR had no reason to believe that any

exposure experienced by Mr. Coffin would be harmful.

I. Knowledge about Presence of Asbestos at Carlton Bridge

MCRR argues that it could not have foreseen that Mr. Coffin would be exposed

to asbestos because it was “not aware that there was asbestos in the wallboards of

the rooms on the Carlton Bridge during the time that it operated and maintained the

bridge” and did not become aware of this fact until approximately 2000. Def.’s Mot.

4. MCRR also asserts that it “did not construct Plaintiff’s workspace,” “was merely a

tenant of [MDOT],” and had no “notice of the use of asbestos in the construction or

the alleged dangerous condition of the encapsulated wall panels.” Def.’s Mot. 7. In the

same vein, MCRR asserts that Mr. Coffin has not presented any evidence that it had

greater awareness about the presence of asbestos in the walls than he did. Def.’s Mot.

7.

It is certainly possible that MCRR did not have actual notice that asbestos was

present in the control room while Mr. Coffin was employed there, particularly because

it did not build the bridge. See SOF ¶ 16. But the problem with MCRR’s argument is

that constructive notice of the harmful circumstances—not just actual notice—can

support a FELA claim. LeDure v. Union Pac. R.R. Co., 962 F.3d 907, 911 (7th Cir.

2020) (“The plaintiff must show that the employer had actual or constructive notice

of those harmful circumstances.” (internal quotations omitted)). Constructive notice

asks what was reasonably foreseeable, a factual question that is typically answered

by the factfinder at trial. See Huff, 2019 WL 5394174, at *3 (“Liability attaches under

FELA where a defendant railroad ‘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.’ ” (quoting Urie, 337 U.S. at 178)); see also McIsaac v.

CSX Transp., Inc., Civil Action No. 11–11455–RGS, 2012 WL 5354564, at *2 & n.3

(D. Mass. Oct. 30, 2012) (explaining that the defendant did not need to have actual

notice that plank was loose because “the element of foreseeability is satisfied if [the

defendant] had notice (or reason to know) of the deterioration of the trestle and if the

unsecured plank was within the realm of the risk presented by that deterioration”).

For constructive notice, Mr. Coffin has offered the minimal evidence necessary

to clear FELA’s low hurdle. The undisputed facts show that there was asbestos

present at the Carlton Bridge.10 SOF ¶¶ 38–39 (stating that asbestos was removed

from the Carlton Bridge, including from the “control house,” in 2000 and 2001). The

Record shows that asbestos-containing products were widely used in construction

during the time period when the Carlton Bridge was built. SOF ¶ 33. Moreover,

between 1930 and 1982, MCRR used asbestos products throughout its system, and in

the last few years of Mr. Coffin’s employment with it, MCRR began a program of

asbestos removal. SOF ¶¶ 51–54. And finally, as discussed below, it is possible that

asbestos dust was visible in the control room, suggesting that reasonable inspection

or monitoring would have uncovered the hazardous conditions.11 Based on this

10 MCRR critiques Mr. Coffin for failing to “indicate where the asbestos was found in the bridge,

what the product was, or how it relates to Mr. Coffin’s potential exposure.” Reply Mem. in Support of

MCRR’s Mot. Summ. J. 6 (ECF No. 126). But the lack of these details does not doom Mr. Coffin’s case

on the element of foreseeability, particularly given FELA’s low bar. Rather, they speak more to the

elements of breach and causation.

11 Moreover, in assessing whether an injury was foreseeable, courts have considered whether the

defendant could have discovered the hazardous condition by exercising due care. See Peyton v. St.

Louis Sw. Ry. Co., 962 F.2d 832, 833–34 (8th Cir. 1992) (affirming judgment for defendant

notwithstanding jury verdict because plaintiff presented no evidence that defective wrench could have

been discovered with due care and defendant’s expert testified that defect was undiscoverable); see

also Huff v. Mass. Bay Commuter R.R. Co., Case No. 18-cv-10623-DJC, 2019 WL 5394174, at *3 (D.

Mass. Oct. 22, 2019); Ditton v. BNSF Ry. Co., No. CV 12-6932 JGB (JCGx), 2013 WL 2241766, at *15–

16 (C.D. Cal. May 21, 2013) (stating that it should be “left for a jury to decide” whether defendant had

constructive notice of defective hand brake because the defect could have been discovered through

proper inspection). Given the presence of asbestos in MCRR’s system and the dust alleged to have

escaped from the control room walls, it is possible that MCRR could have taken additional steps to

assess the potential hazards, perhaps by employing an industrial hygienist at an earlier point. See

record, it does not seem entirely unforeseeable that there would be asbestos-

containing products in the control room of the Carlton Bridge.

MCRR cites two cases in which the First Circuit held that summary judgment

was appropriate because the plaintiffs had failed to show that the defendants had

actual or constructive notice of a risk of injury to the plaintiffs. See Def.’s Mot. 5, 8

(citing Moody v. Bos. & Me. Corp., 921 F.2d 1, 3 (1st Cir. 1990) and Robert v. Consol.

Rail Corp., 832 F.2d 3, 7 (1st Cir. 1987)). Both cases are readily distinguishable

because they involved employees who suffered heart attacks and who had given their

employers no reason to be concerned about their physical health.12 In Moody, for

example, the First Circuit noted that there was no evidence that the employer had

been informed about or had reason to know about the employee’s deteriorating

physical condition and increased stress. 921 F.2d at 3. A critical piece of information

regarding the injury was held by the employee, not the employer—in other words, the

employee was in the better position to foresee the injury. See id.; see also Robert, 832

F.2d at 6–7 (explaining narrow standard for finding liability in FELA cases involving

heart attacks and holding that employer could not foresee employee would suffer

SOF ¶ 59 (stating that MCRR did not employ an industrial hygienist before 1985). The reasonableness

of its actions, however, is a question for the jury.

12 Elsewhere in its motion, MCRR cites a handful of cases in which courts found no foreseeability.

Def. MCRR’s Mot. Summ. J. 6–7 (ECF No. 115). These cases are also distinguishable. For example, in

Holbrook v. Norfolk S. Ry. Co., 414 F.3d 739, 744–45 (7th Cir. 2005), the Seventh Circuit affirmed

summary judgment for the defendant railroad, finding that the plaintiff had presented no evidence

that the defendant had actual or constructive notice of a greasy substance on a ladder that caused the

plaintiff’s fall. But, in that case, the court noted the plaintiff had presented no evidence that an earlier

inspection would have uncovered the presence of the greasy substance, adding that the source and

timing of the substance was unknown. Holbrook, 414 F.3d at 744–45. This is distinguishable from Mr.

Coffin’s case, in which ongoing exposure from an unmodified asbestos-containing product is alleged.

heart attack after on-the-job harassment). This is different from Mr. Coffin’s injury,

which allegedly stems from the conditions of his workspace and involves exposure to

a substance widely known to be harmful.13 There is no suggestion that Mr. Coffin’s

own physical health—unknowable to MCRR without divulgence—contributed to his

injury.

Because there is some reasonable basis to conclude that MCRR should have

known about the presence of asbestos at the Carlton Bridge, the question of

foreseeability should be left to the jury.14 See Hines, 926 F.2d at 268; Cook v. CSX

Transp., Inc., 557 F. Supp. 2d 1367, 1373 (M.D. Fla. 2008) (“An employer’s

‘knowledge, actual or constructive, of the alleged inadequacies of the [employer’s]

equipment [is] a jury question.’ ” (alterations in original) (quoting Urie, 337 U.S. at

178)).

13 Despite MCRR’s suggestion otherwise, Mr. Coffin’s own lack of knowledge about the presence

of asbestos is far from determinative. What was reasonably foreseeable to MCRR, as the employer,

would likely differ from what was reasonably foreseeable to Mr. Coffin and other employees.

For similar reasons, MCRR’s point about its status as lessee—rather than owner or builder—

of the Carlton Bridge appears aimed at disputing actual notice of the presence of asbestos. Because

Mr. Coffin can attempt to prove constructive notice at trial, this status is not determinative. At the

same time, I note that lack of ownership of the workspace does not absolve a railroad of a duty to

ensure that the workspace is safe, which includes a duty to inspect the property of third parties for

hazards and to take precautions to protect employees from possible defects. See Dykes v. BNSF Ry.

Co., 356 F. Supp. 3d 1097, 1100 (W.D. Wash. 2018) (collecting cases holding that railroads had duty to

inspect property of third parties when it leased the property or sent its employees there).

14 It is possible that MCRR would not have had reason to know of the asbestos because a

reasonable inspection would not have uncovered it. But MCRR develops no such argument. For

example, although an inspection was conducted in 1984 to “determine what safety and health problems

might exist” at the Carlton Bridge, the scope of that inspection—and whether inspectors looked for

asbestos dust—is not clear from the Record. SOF ¶¶ 21–22; Inter-Departmental Mem. (ECF No. 113-

11).

II. Foreseeability that Mr. Coffin Would Be Exposed to Asbestos

The second thrust of MCRR’s argument is that there was no reason to

anticipate that asbestos dust would escape the walls of the Carlton Bridge and harm

Mr. Coffin. The parties agree with the general principle that, as long as asbestos in

building material stays in place, it is not likely to be ingested or cause harm. SOF

¶ 34. Drawing from this fact, MCRR states that there was “nothing about the

condition of the control room during Mr. Coffin’s employment that would trigger a

cause for concern,” adding that there “is no evidence that the asbestos was not ‘in

place.’ ” Def.’s Mot. 8; see also Reply Mem. in Support of MCRR’s Mot. Summ. J.

(“Def.’s Reply”) 5–6 (ECF No. 126) (explaining that, because the asbestos was

“presumed to be encapsulated in place behind many layers of paint,” MCRR had no

reason to be concerned about potential exposure). MCRR rests at least part of its

argument on the purported fact that “Mr. Coffin observed no dust from the walls and

did not have to clean the control room as a result of the vibrations he reported.” Def.’s

Mot. 8.

It is possible that Mr. Coffin’s exposure was unforeseeable if there is no

evidence that asbestos dust was escaping the control room walls. But this fact

remains in dispute. See supra note 7 (concluding that MCRR has not persuasively

explained why the Court should strike Mr. Coffin’s testimony before the Workers’

Compensation Board that he saw dust). As noted above, Mr. Coffin cites testimony in

which he states that he did see dust appear when the walls of the bridge shook, while

MCRR cites testimony in which Mr. Coffin denies seeing any dust. SOF ¶¶ 12, 48.

Because I have denied both parties’ requests to strike the conflicting statements, a

factual dispute remains. See In re Celexa & Lexapro Mktg. & Sales Practices Litig.,

915 F.3d 1, 11 (1st Cir. 2019) (“Generally speaking, ‘conflicting evidence’ is the

hallmark of an issue that calls for factfinding, not summary judgment.”). And, given

Mr. Coffin’s testimony that dust did emanate from the walls when they shook, I

cannot conclude that there is a complete absence of probative facts showing that

MCRR reasonably should have known that Mr. Coffin would be exposed to asbestos

dust.

III. Foreseeability of Harm Caused by Such Asbestos Exposure

Lastly, MCRR argues that it was unforeseeable that a person would have been

injured by the type of exposure that Mr. Coffin allegedly had. MCRR emphasizes that

“Mr. Coffin’s employment was not typical of a railroad worker” and that “there are no

case studies or exposure assessments specific to incidental exposure to workers

within structures with wall boards containing asbestos, if the employees were not

manufacturing or working with the product.” Def.’s Reply 4–5. MCRR adds that,

“[e]ven if MCRR had some general knowledge about the dangers of working directly

with asbestos, there is no evidence to cause a reasonable person from 1967 to 1987 to

believe that working in a room containing wall board with encapsulated asbestos

posed any danger.” Def.’s Reply 4. And, finally, MCRR contends that, even if Mr.

Coffin was exposed to asbestos, his exposure levels would have been minimal and “the

asbestos fiber type in in the cement wall boards was most likely chrysotile, which is

generally considered to present a negligible risk for development of mesothelioma.”

Def.’s Mot. 9; see also SOF ¶¶ 27–29 (citing MCRR expert’s opinion that Mr. Coffin’s

cumulative exposure would have been between 3,500 and 40,000 times lower than

the most stringent occupational exposure regulations at the time and 1,700 to 20,000

times lower than the most stringent exposure regulations today).15

There are several problems with these arguments. First, they rest upon the

assumption that the asbestos was properly encapsulated, a fact that—as discussed

above—remains in dispute. And MCRR’s general statement that working in a room

with encapsulated asbestos is not hazardous does not account for Mr. Coffin’s

testimony that the walls of this control room shook violently when concrete-laden

trains passed over the bridge. See SOF ¶ 46.

Second, Mr. Coffin has offered evidence to dispute MCRR’s assertion that the

fiber type was “likely” chrysotile and that such fibers are harmless at the alleged

exposure levels. See SOF ¶¶ 26, 41–42 (criticizing the foundation for MCRR’s expert’s

statement that chrysotile was the fiber historically used in cement boards); SOF ¶ 45

(noting that, according to the Occupational Safety & Health Administration, there is

no safe level of exposure for any type of asbestos fiber, and every occupational

exposure contributes to the risk of getting an asbestos-related disease).16 Moreover,

15 MCRR states that “the literature reflects that workers or residents in asbestos containing

structures are not at risk of consequential exposure from routine activities.” SOF ¶ 29. Mr. Coffin

denies this point and requests to strike it, arguing that it is a statement of opinion rather than of fact

and citing to his own statement of fact that there is no safe level of asbestos exposure. SOF ¶ 29 (citing

SOF ¶ 45); see also SOF ¶¶ 27–28 (Plaintiff also denying and requesting to strike statements for same

reason). For the purposes of this motion, I deny the request to strike because MCRR has supported

the statements with citations to the Record.

16 MCRR denies paragraph 45, without citing any part of the record to dispute it, and requests

to strike it “because it is not supported by a valid record citation, lacks foundation, lacks temporal

relevance, and is hearsay.” SOF ¶ 45. Paragraph 45 cites to a page on OSHA’s website, which Mr.

Coffin did include in his supplemental record. See Occupational Safety & Health Admin., Asbestos

(ECF No. 121-9). MCRR does not develop its argument about why the document lacks foundation or

temporal relevance or is hearsay. Any question about whether to credit the statements in the document

or what weight to give them can be answered by the factfinder at trial.

even if the asbestos was likely chrysotile, that level of probability is not sufficient in

a FELA case, where any probability of foreseeability or any probative facts supporting

foreseeability can defeat summary judgment.

Finally, the lack of scientific studies and complaints from other employees is

not conclusive as to the issue of foreseeability. See Gallick v. Baltimore & Ohio Ry.

Co., 372 U.S. 108, 121 (1963) (calling it “a far too narrow a concept of foreseeable

harm” to conclude that the defendant “had no specific ‘reason’ for anticipating a

mishap or injury to” the plaintiff just because there had been no prior similar

incidents); Ditton v. BNSF Ry. Co., No. CV 12-6932 JGB (JCGx), 2013 WL 2241766,

at *15 (C.D. Cal. May 21, 2013) (absence of other reports of injuries or lack of prior

complaints “do not establish as a matter of law that injury was not foreseeable”). This

is especially so because a plaintiff can satisfy the foreseeability prong even if the

extent of his injury was not foreseeable. See McBride, 564 U.S. at 703–04. Thus, if it

was foreseeable that the asbestos exposure would cause “any type of mishap [or]

injury,” then the foreseeability element can be satisfied.17 See Abernathy, 940 F.3d at

990 (noting that FELA does not require plaintiff to show that “the particular

consequences of [the defendant’s] negligence” was foreseeable but rather just

17 Although MCRR’s argument—that no injuries similar to Mr. Coffin’s have been reported in

the scientific literature—does not defeat the foreseeability element, it will likely be relevant to the

issues of causation and perhaps breach. It may have been foreseeable that asbestos exposure like Mr.

Coffin’s might cause some type of injury, but at the same time, Mr. Coffin might be unable to produce

the scientific evidence to establish that the exposure actually played any part in his illness. Similarly,

in assessing whether MCRR breached its duty, a jury will likely consider whether the steps MCRR

took to prevent harmful exposure were reasonable based on existing scientific understanding.

“circumstances which a reasonable person would foresee as creating a potential for

harm” (quoting McGinn v. Burlington N. R.R. Co., 102 F.3d 295, 300 (7th Cir. 1996))).

Given MCRR’s general knowledge of the harms of asbestos exposure, I cannot

say that it was unforeseeable that the type of exposure that Mr. Coffin allegedly had

would be harmful, even if the extent of his injury—in this case developing malignant

mesothelioma—could not have been anticipated.

CONCLUSION

In its motion for summary judgment, MCRR only attacks the foreseeability of

Mr. Coffin’s alleged injury—not whether MCRR breached its duty or whether that

breach caused the injury. All MCRR asks me to rule on is whether the undisputed

facts show that harm from asbestos exposure at the Carlton Bridge was

unforeseeable. Because I must view the facts in the light most favorable to Mr. Coffin

and given the “low threshold” imposed by FELA at summary judgment, I cannot

conclude at this stage that it was unforeseeable that harmful asbestos exposure

would or could occur in Mr. Coffin’s workspaces at the bridge. See Butynski, 592 F.3d

at 276; Huff, 2019 WL 5394174, at *3 (citing “low threshold” required by plaintiff to

overcome motion for summary judgment and denying defendant’s motion).

For the reasons stated above, the Court DENIES the Defendant’s Motion for

Summary Judgment (ECF No. 115).

SO ORDERED.

/s/ Nancy Torresen

United States District Judge

Dated this 25th day of January, 2021.