AUBOUG v. EYRE BUS SERVICE, INC

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

RENEESHA AUBOUG, ef al,

Plaintiffs, Civil Action No. 2:20-cv-389

v. Hon. William S. Stickman IV

EYRE BUS SERVICE, INC. et al,

Defendants.

MEMORANDUM OPINION

WILLIAM S. STICKMAN IV, United States District Judge

Husband and wife Plaintiffs, Reneesha and Yves Auboug, filed suit in late 2019 in the

Court of Common Pleas of Allegheny County, Pennsylvania, alleging that Mrs. Auboug suffered

inhalation of “toxic fumes” on an Eyre bus due to Defendants’ negligence and incurred injuries

as a result. Mr. Auboug asserts a loss of consortium claim.! (ECF No. 1-1). The case was

removed to this Court. (ECF No. 1). Plaintiffs’ counsel subsequently withdrew. (ECF Nos. 13,

14). Plaintiffs proceeded pro se, although they sought and obtained multiple extensions of

deadlines based on the representation that they had contacted counsel, who would enter an

appearance on their behalf. Counsel never appeared and the case proceeded through the closure

of discovery on June 21, 2021. (ECF Nos. 24, 40).

Defendant National Railroad Passenger Corporation d/b/a Amtrak (“Amtrak”) filed a

timely Motion for Summary Judgment, Concise Statement of Material Facts, and Brief in

' Counts II and IV were brought by Mrs. Auboug on behalf of her minor daughter, K.A., and

they alleged that she suffered inhalation of “toxic fumes” on the Eyre bus due to Defendants’

negligence, and that she incurred injuries as a result. Because Mrs. Auboug was unable to secure

counsel for her claims or those of her daughter, and because a parent may not represent the

interests of a child pro se, the Court dismissed K.A.’s claims without prejudice. (ECF No. 37).

Support thereof. (ECF Nos. 45, 46, 47). Defendant Eyre Bus Service, Inc., d/b/a Eyre Tour &

Travel, Eyre Tour & Travel Ltd., (“Eyre”) also filed a timely Motion for Summary Judgment,

Concise Statement of Material Facts, and Brief in Support thereof. (ECF Nos. 48, 49, 50).

Pursuant to the Court’s Order, Plaintiffs’ Responses were due by August 5, 2021. (ECF No. 40).

On August 19, 2021, when Plaintiffs failed to respond, the Court issued an Order to Show Cause

giving Plaintiffs until September 9, 2021 to respond. (ECF No. 51). Plaintiffs requested a two-

week extension, which the Court granted on September 9, 2021. (ECF No. 54). In so doing, the

Court cautioned Plaintiffs that “no further extensions of time will be granted.” (ECF No. 54).

Plaintiffs’ Show Cause Response was due by September 23, 2021. (ECF No. 54). Mrs.

Auboug’s Motion to Extend Time and Response to Court’s Order to Show Cause (ECF No. 57)

addressed the merits of Defendants’ pending motions and was deemed by the Court to be her

Response to Defendants’ Motions for Summary Judgment. (ECF Nos. 45, 48). Likewise, Mr.

Auboug’s response to the Court’s Order to Show Cause was deemed by the Court to be his

Response to Defendants’ Motions for Summary Judgment. (ECF Nos. 45, 48). For the reasons

set forth below, Defendants’ motions will be granted.

I. FACTUAL BACKGROUND

Mr. and Mrs. Auboug and their minor child, K.A., were traveling by rail on the return leg

of a multi-destination trip with their church. On August 1, 2017, Amtrak experienced a train

derailment along the rail line that Plaintiffs were scheduled to travel. Amtrak provided

alternative transportation to the travelers in the form of three buses. Ticketed passengers could

choose their own bus and seats. Plaintiffs and their child boarded an Eyre bus. Mrs. Auboug sat

in a window seat near the back of the bus, and Mr. Auboug sat beside her in the aisle seat. Their

daughter sat across the aisle. (ECF No. 50, 9 1-5); (ECF No. 57, { 7, 8, 16).

Approximately one hour into the trip, Mrs. Auboug noticed a smell that made her sleepy.

She alerted no one to the smell, and fell asleep for some time. She awoke when the bus stopped

in Breezewood, Pennsylvania, where she ate. When reboarding the bus, Mrs. Auboug noticed a

different smell — which she asserts was similar to the scent of gasoline or diesel. Once again, she

told no one about the smell. Some unspecified time later, the driver pulled the bus over and

inspected an exterior compartment of the bus near Mrs. Auboug’s seat. He then informed the

passengers that he turned a vent off and gave them the option to board either of the other two

buses for the remainder of the trip. Instead of switching buses, Mrs. and Mr. Auboug switched

seats. (ECF No. 50, {§ 5-11); (ECF No. 57, J] 18-19, 25, 30, 31, 33).

After switching seats, Mr. Auboug’s eyes began to burn, Mrs. Auboug’s nose and upper

lip burned, and she began to have chest pain. None of the other dozen passengers complained of

medical issues, except for one passenger who had a headache. Mrs. Auboug later moved across

the aisle with her daughter, and Mr. Auboug returned to his original seat. After relocating, Mrs.

? According to the Local Rules of this Court, undisputed facts “will for the purpose of deciding

the motion for summary judgment be deemed admitted unless specifically denied or otherwise

controverted by a separate concise statement of the opposing party.” L.Cv.R. 56(E). Typically,

this Local Rule is strictly enforced. See, e.g., Janokowski v. Demand, 2008 WL 1901347, at *1

(W.D. Pa. Apr. 25, 2008); GNC Franchising LLC y. Kahn, 2008 WL 612749, at *1 (W.D. Pa.

Mar. 3, 2008). The Court, however, is mindful that Plaintiffs are now proceeding pro se, and it

acknowledges that pro se submissions are to be construed liberally. Lynn v. Sec’y, Dep’t, 431 F.

App’x 147, 150 (d Cir. 2011). In recognition of this duty, and despite Plaintiffs’ lack of a

specific refutation of the Defendants’ Concise Statements of Material Facts, the Court will

consider portions of their Responses (ECF Nos. 45, 48) as disputing portions of Defendants’

Concise Statements of Material Facts. See Pondexter vy. Allegheny Cnty. Housing Auth., 2012

WL 3611225, at *1 n.2 (W.D. Pa. Aug. 21, 2012). Thus, Defendants’ Concise Statements of

Material Facts will not be deemed undisputed, although many facts with in it are indeed

undisputed. The Court will consider the facts as set forth by all parties, and make reasonable

inferences where it is appropriate.

Auboug experienced chest pain and difficulty breathing. Noticing Mrs. Auboug’s distress, the

driver pulled off at the New Stanton exit. (ECF No. 50, §] 13-18); GECF No. 57, □ 22, 33, 34,

35, 38 39).

Mrs. Auboug was transported by ambulance to Westmoreland Hospital where she was

kept overnight for observation. (ECF No. 50, § 20); (ECF No. 57, 52, 56-60, 63). At

Westmoreland Hospital, Mrs. Auboug’s conditions were not attributed by medical personnel as

resulting from fume inhalation. (ECF No. 50, 21).

After her release from the hospital, Mr. and Mrs. Auboug and K.A. stayed in a hotel

room for the night of August 6, 2017. The next day, they rented a car to drive to Greater

Pittsburgh International Airport, and they flew back to Missouri. The car and flight were funded

by the church trip organizers. (ECF No. 50, 22); (ECF No. 57, {9 72, 73).

On August 8, 2017, Mrs. Auboug went to the emergency room at Christian Northeast

Hospital in Missouri complaining of dizziness, chest pain, headaches and issues with walking

and speaking. She was admitted for ten days and diagnosed with fibromyalgia. No Christian

Northeast Hospital medical personnel attributed her injuries or symptoms to what she

experienced on the bus—i.e., fume inhalation. (ECF No. 50, 9] 23-25); (ECF No. 57, {| 74-81).

In fact, Mrs. Auboug conceded during her deposition that no one at Christian Northeast Hospital

advised her that her symptoms were the result of being exposed to fumes on the bus. (ECF No.

50, { 26).

After Mrs. Auboug’s discharge from the hospital, she felt unable to work and allegedly

received a note from her primary care physician stating she could not work for an unspecified

period of time. No such note was contained in her medical records. Several months after the bus

incident, Mrs. Auboug was let go from her part-time job as a small farm outreach worker. She

applied for long-term disability through a private insurance company and received it due to

medical issues unrelated to the bus incident. Approximately two years after the bus incident,

Mrs. Auboug’s long-term disability benefits were terminated because it was determined that she

could physically maintain employment. (ECF No. 50, {9 27-30); (ECF No. 57, {ff 94, 95).

Mrs. Auboug brings claims of negligence against Amtrak (Count I) and Eyre (Count II),

and Mr. Auboug brings a loss of consortium claim against both Defendants (Count V).?

□ IL. STANDARD OF REVIEW

Summary judgment is warranted if the Court is satisfied that there is no genuine issue as

to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.

R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is material

if it must be decided to resolve the substantive claim or defense to which the motion is directed.

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And there is a genuine dispute of

material fact “if the evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” Jd. The Court must view the evidence presented in the light most favorable

to the nonmoving party. Jd at 255. It refrains from making credibility determinations or

weighing the evidence. Jd. “[R]eal questions about credibility, gaps in the evidence, and doubts

as to the sufficiency of the movant’s proof” will defeat a motion for summary judgment. E/ vy.

Se. Pa. Transp. Auth., 479 F.3d 232, 238 (3d Cir. 2007).

When considering a motion for summary judgment, the traditional flexibility toward pro

se pleadings does not require the Court to indulge evidentiary deficiencies. See Mala v. Crown

> The Court exercises federal-question jurisdiction over the claims against Amtrak, a federally-

chartered corporation in which the United States owns the majority of shares. See 28 U.S.C.

§§ 1331, 1349; see also Hollus v. AMTRAK Ne. Corridor, 937 F. Supp. 1110, 1113 (D.N.J.

1996) (“Because a majority of the capital stock of Amtrak is owned by the United States, the

federal courts have subject matter jurisdiction over any action involving Amtrak.”). The Court

exercises supplemental jurisdiction over the remaining claims. See 28 U.S.C. § 1367(a).

Bay Marina, Inc., 704 F.3d 239, 249 (d Cir. 2013) (citing Brooks v. Kyler, 204 F.3d 102, 108 n.

7 (3d Cir. 2000) (indicating that pro se litigants still must present at least affidavits to avoid

summary judgment)). At summary judgment, a pro se plaintiff is not exempt from her burden of

providing some affirmative evidence, i.e., not just mere allegations, to establish a prima facie

case, and to show that there is a genuine dispute for trial. See Barnett v. N.J. Transit Corp., 573

F. App’x 239, 243 (3d Cir. 2014) (holding that the pro se plaintiff was still “required to designate

specific facts by use of affidavits, depositions, admissions, or answers to interrogatories .. .

sufficient to convince a reasonable fact finder to find all the elements of her prima facie case”’)

(citation and quotation omitted)); Mitchell v. Gershen, 466 F. App’x 84, 87 (3d Cir. 2011)

(upholding a district court's grant of summary judgment against a pro se plaintiff for his failure

to submit expert testimony in a denial of medical services suit); Siluk v. Beard, 395 F. App’x

817, 820 (3d Cir. 2010) (“[T]he right of self-representation does not exempt a party from

compliance with relevant rules of procedural law.”’).

II. ANALYSIS

Mrs. Auboug’s claim of negligence against Amtrak (Count I) alleges that as a result of its

negligence, she “suffered and will continue to suffer from sickness and health problems

including but not limited to chronic dyspnea.” (ECF No. 1-1, p. 27). As to Mrs. Auboug’s claim

of negligence against Eyre (Count IID, she states that as a direct and proximate cause of Eyre’s

negligence, she “suffered and/or will suffer sickness and health problems including but not

limited to demyelination.” (ECF No. 1-1, p. 29). In seeking summary judgment in their favor,

Defendants contend that Mrs. Auboug has completely failed to adduce any evidence to support

her claims. The Court agrees. It will grant summary judgment in favor of Defendants as to all

remaining claims.

A. Choice of Law.

Although not specifically explored by the parties, the first issue that the Court must

determine in adjudicating Defendants’ motions as to Mrs. Auboug’s negligence claims is the

applicable law. See LeJeune y. Bliss-Salem, Inc., 85 F.3d 1069, 1071 (Gd. Cir. 1996) (“Before

we address the tort issues in his case, we must first decide which state’s law applies.”). “In

choosing which law applies, a federal court sitting in diversity must apply the choice-of-law

rules of the forum state.” Jd. (citing Klaxon v. Stentor Electric Mfg. Co., 313 U.S. 487, 496

(1941); Shuder v. McDonald’s Corp., 859 F.2d 266, 269 (3d Cir. 1988)). Pennsylvania has

abandoned the common law lex loci delicti rule for choice of law in tort cases. It applies a

modified form of the analysis set forth in the Restatement (Second) of Conflicts of Law. The

Pennsylvania choice-of-law analysis consists of two parts. First, the Court must look to see

whether a false conflict exists. Then, if there is no false conflict, the Court

determines which state has the greater interest in the application of its law. See Cipolla v.

Shaposka, 267 A.2d 854 (Pa. 1970); Lacey v. Cessna Aircraft Co., 932 F.2d 170, 187 & n. 15

(3d Cir. 1991). A false conflict exists where “only one jurisdiction’s governmental interests

would be impaired by the application of the other jurisdiction's law.” Lacey, 932 F.2d at 187.

“If two [or more] jurisdictions’ laws are the same then there is no conflict at all, and a choice of

law analysis is unnecessary.” Hammersmith v. TIG Ins. Co., 480 F.3d 220, 230 (3d Cir. 2007)

(emphasis in original). “Thus, the first part of the choice of law inquiry is best understood as

determining if there is an actual or real conflict between the potentially applicable laws.” Id.

(emphasis in original).

In this case, the laws of four jurisdictions are implicated: Pennsylvania (where the bus

was traveling at the time of the alleged fume discharge and injury); Missouri (Plaintiffs’ home

state); Maryland (Eyre’s home state); and Washington D.C. (Amtrak’s home jurisdiction). The

Court must first look to their respective laws of negligence to determine whether an actual

conflict exists and, if so, whether the conflict is false or true. If a true conflict exists, the Court

must balance the relevant interests of the implicated jurisdictions.

Pennsylvania law requires the standard four elements—duty, breach, causation, and

damages-to establish negligence. See Krentz v. Consol. Rail Corp., 910 A.2d 20, 27 (Pa. 2006).

Negligence is “the absence of ordinary care that a reasonably prudent person would exercise in

the same or similar circumstances.” Merlini ex rel. Merlini v. Gallitzin Water Auth., 980 A.2d

502, 506 (Pa. 2009) (internal citations and quotation marks omitted). Under Missouri law, “[iJn

any action for negligence, the plaintiff must establish that the defendant had a duty to protect the

plaintiff from injury, the defendant failed to perform that duty, and the defendant’s failure

proximately caused injury to the plaintiff.” Wilmes v. Consumers Oil Co. of Maryville, 473

S.W.3d 705, 720 (Mo. App. W.D. 2015) (citations omitted). Under Maryland law, “a properly

pleaded claim of negligence includes four elements. The plaintiff must show (1) that the

defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached

that duty, (3) that the defendant’s breach of the duty proximately caused the loss or myury

suffered by the plaintiff, and (4) that the plaintiff suffered actual loss or injury.” Troxel v.

Iguana Cantina, LLC, 29 A.3d 1038, 1049 (Md. App. 2011) (citation omitted). Finally, the law

of Washington D.C. is the same as the other jurisdictions with respect to negligence. rie

Insurance Co. v. W.M. Barr & Company, Inc., 523 F. Supp. 3d. 1, 6-7 (D. D.C. 2021).

Consequently, the Court finds that there is no conflict in the laws of the four implicated

jurisdictions vis-a-vis the general elements of a claim for negligence.*

Because the laws of Pennsylvania, Missouri, Maryland and Washington D.C. are the

same with respect to the claims raised by Plaintiffs, there is no conflict—treal or false. Because

there is no actual conflict, the Court may apply the law of the forum—Pennsylvania.

Hammersmith, 480 F.3d at 229.

B. Mrs. Auboug has failed to adduce sufficient facts to support her

claims of negligence at Counts I and III.

As explained above, to prevail on her negligence claims, Mrs. Auboug must prove: (1)

the existence of a legal duty requiring a certain standard of conduct; (2) breach of that duty by

Defendants; (3) a causal connection between Defendants’ breach and her injury; and (4) actual

loss or damages. It is black-letter law that in adjudicating Defendants’ Motions for Summary

Judgment, the Court must read the record in the light most favorable to Plaintiffs and give them

the benefit of every reasonable inference from the facts of record. However, “in order to defeat a

properly supported motion for summary judgment, a plaintiff cannot merely restate the

allegations of his complaint, nor can he rely on self-serving conclusions unsupported by specific

facts in the record. Plaintiff must point to concrete evidence in the record which supports each

essential element of his case.” Tozzi v. Union R. Co., 722 F. Supp. 1236, 1239 (W.D. Pa. 1989)

(internal citation omitted). Here, an element-by-clement examination of Mrs. Auboug’s

4 In addition to the general elements of a negligence claim—-which are essentially ubiquitous

where the common law prevails—the Court examined the duty owed to a passenger by a

common carrier. Here, too, the laws of the potentially implicated jurisdictions are

coterminous—with each imposing upon common carrier the highest duty of care. See Connolly

y. Philadelphia Transportation Co., 216 A.2d 60, 62 (Pa. 1966); Trader v. Blanz, 937 S.W.2d

325, 327 (Mo. App. W.D. 1996); Washington Metro. Area Transit Auth. v. Seymour, 874 A.2d

973, 977 (Md. 2005); Washington Metro. Area Transit Auth. v. Jeanty, 718 A.2d 172, 175-76

(D.C. App. 1998). There is, therefore, no conflict on this more focused examination of the law

governing the parties’ relationship in this case.

negligence claims demonstrates that she cannot point to concrete evidence supporting those

claims. As such, summary judgment in favor of Defendants is warranted.

1. Duty

The existence of a duty owed by a defendant is the threshold question in a negligence

action, and it is generally a question of law. See Holmes v. Kimco Realty Corp., 598 F.3d 115,

118 (3d Cir. 2010). Mrs. Auboug’s claims for negligence will not survive Defendants’ motions

if the law does not impose an affirmative duty on them. See id.; see also Burton v. Terry, 592

A.2d 1380, 1383 (Pa. Cmwlth. 1991) (“The determination of what duty, if any, a defendant owes

to [a plaintiff] is a question of law.”). “A duty, in negligence cases, may be defined as an

obligation, to which the law will give recognition and effect, to conform to a particular standard

of conduct toward another.” Atcovitz v. Gulph Mills Tennis Club, Inc., 812 A.2d 1218, 1222 (Pa.

2002) (citation omitted).

As explained above, the law recognizes that a common carrier owes not only a duty, but a

heightened duty of care to its passengers. Thus, there is no question that Eyre had a duty to

Plaintiffs, as the alleged fume exposure happened while they were passengers on its bus.

There is no question that when Plaintiffs were riding Amtrak’s train, it owed them a duty

of care. Whether Amtrak had a duty to protect Plaintiffs from injury on the bus operated by Eyre

requires a deeper examination. The Complaint alleges negligence, and therefore an actionable

breach of duty, relating to Amtrak’s “failure to provide a safe alternative for passenger

transportation following its train’s derailment,” failure to perform “appropriate safety

inspections” on the bus, failure to warn of the dangerous conditions on the bus, and failure to

refund Plaintiffs’ money to allow them to choose their own substitute transportation. (ECF No.

10

1-1, pp. 25-26). Underlying each of these clams is the supposition that Amtrak had a duty, upon

its inability to transport Plaintiffs by rail, to provide alternative transportation that would be safe.

Although not addressed and adopted by the Pennsylvania Supreme Court, Restatement

(Second) of Torts § 428 is instructive to the question of Amtrak’s duty in the situation presented

here. In fact, federal district courts have predicted that the Pennsylvania Supreme Court would

adopt Section 428 if faced with the issue. See Longo v. Pa. Elec. Co., 618 F. Supp. 87, 90-91

(W.D. Pa. 1985); Wilson v. IEST Corp., 444 F. Supp. 2d 298, 309-11 (M.D. Pa. 2006). It states:

An individual or a corporation carrying on an activity which can be lawfully

carried on only under a franchise granted by a public authority and which

involves an unreasonable risk of harm to others, is subject to liability for physical

harm caused to such others by the negligence of a contractor employed to do work

in carrying on the activity.

Restatement (Second) of Torts § 428 (1965). Previous cases have applied Section 428 to

situations where common carriers have subcontracted others to perform their duties and the acts

of the subcontractors caused harm to third parties. See e.g. Longo, 618 F. Supp. At 90-91

(applying Pennsylvania law); Wilson, 444 F. Supp. 2d at 309-11 (same); Venuto v. Robinson, 118

F.2d 679, 682-83 (3d. Cir. 1941) (applying New Jersey law).

In this case, due to a train derailment, Amtrak hired Eyre to transport its ticketed

passengers and employees whose travel plans were impeded. Amtrak made the arrangements

with Eyre for transportation of the previously ticketed rail passengers. The passengers did not

make any arrangements themselves. Eyre is, therefore, properly characterized as a subcontractor

of Amtrak. Accordingly, it had a duty to its passengers that continued while the passengers

were transported on the Eyre bus. This duty can reasonably be found to include those claimed by

Plaintiffs (to provide a safe alternative for passenger transportation following Eyre’s train’s

11

derailment, to perform safety inspections on the bus, and to warn of dangerous conditions on the

bus.).

2. Breach of Duty

As a common carrier, Eyre owes a duty of safety to its bus passengers. Indeed, as

explained above, common carriers owe a heightened duty of care. Eyre nevertheless contends

_ that Mrs. Auboug has not set forth sufficient facts to submit to a jury the issue of whether it

breached its duty of care to her. (ECF No. 49, pp. 6-7). It contends that Mrs. Auboug has

“introduced no evidence as to what was causing the odor, where it was coming from, what it

was, how it could be harmful let alone whether it was the result of any negligence or any action

or inaction of Defendants.” (ECF No. 49, p. 6). Mrs. Auboug responds by reciting the amount

of time she was exposed to “toxic fumes,” and contending that Eyre did not follow proper

procedures and alert the authorities when she inhaled “toxic fumes” on the bus. (ECF No. 57).

There is no question that a release of noxious fumes into the passenger compartment of a

bus would be strongly indicative, at least, of a breach of the carrier’s duty of care to its

passengers. Yet, Mrs. Auboug has come forth with no concrete evidence as to what actually

occurred on the bus. At the summary judgment stage, Mrs. Auboug has to adduce more than a

mere scintilla of evidence in her favor, and she cannot simply reassert factually unsupported

allegations contained in her pleadings. “[S]ummary judgment is essentially “put up or shut up’

time for the non-moving party” who “must rebut the motion with facts in the record and cannot

rest solely on assertions made in the pleadings, legal memoranda, or oral argument.” Wiest v.

Tyco Elecs. Corp., 812 F.3d 319, 322 (3d Cir. 2016) (citation omitted). Mrs. Auboug needed to

“present more than just bare assertions, conclusory allegations or suspicions to show the

12

existence of a genuine issue.” Garcia v. Kimmell, 381 F. App’x 211, 213 Gd Cir. 2010) (quoting

Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005)).

Mrs. Auboug has failed to adduce sufficient evidence of a breach of duty to submit to a

jury. Her claim is supported only by her own testimony, which is unclear and not sufficient to

create a genuine issue of material fact. For example, Mrs. Auboug testified that there were

actually two distinct smells that occurred at different times during the trip and which had

different effects upon her. (ECF No. 50-1, p. 8) (“First of all there were different odors.”). She

testified that the first odor, which occurred before the stop in Breezewood, made her “sleepy”

and burned her nose. (/d.). She was not able to offer any description of the first smell. Ud. at 9-

10) (Q: Can you just describe to me what it is that you smelled? A: I really don’t—l really could

not identify the smell. The first smell I couldn’t identify it.). She said that the second smell

“smelled like gas or diesel.” (Jd. at 10). It was after experiencing the second smell that Mrs.

Auboug claims to have suffered the distress that led to her leaving the bus and being taken to the

hospital. Mrs. Auboug has not been able to adduce any evidence as to the nature and source of

the two odors upon which she bases her claim. She hopes to proceed to a jury based only on

testimony that she experienced harm from two different smells and that these smells must

indicate the discharge of noxious fumes into the passenger compartment of the bus. Even

reading the record in the light most favorable to Mrs. Auboug, she has not made a sufficient

showing to overcome summary judgment. Quite simply, she failed to adduce factual evidence

that would allow a reasonable jury to find Eyre breached any duty of care.

Mrs. Auboug has also failed to come forward with evidence that Amtrak breached its

duty to her—for largely the same reasons she has failed to identify a breach of duty by Eyre. As

explained above, she has not adduced evidence of what actually happened on the bus that

13

allegedly caused her injury. She offers only that she was exposed to two separate and distinct

smells. Further, she has not adduced any evidence to support a finding that Amtrak violated its

duty of care in selecting Eyre as an alternative transportation or that it failed to exercise

appropriate oversight, if any, over Eyre. Mrs. Auboug has offered nothing that would allow a

reasonable jury to find that Amtrak breached a duty of care to her.

3. Causation

Furthermore, assuming arguendo that Mrs. Auboug has adduced sufficient evidence that

Eyre and/or Amtrak breached their duties, both Defendants contend that Mrs. Auboug failed to

come forth with evidence of a causal connection between their alleged conduct and her alleged

injuries. (ECF No. 45-1, pp. 4-6; ECF No. 79, pp. 5-6; ECF No. 60, pp. 3-5; ECF No. 61. pp. 2-

3). “To establish the causation element in a negligence claim, a plaintiff must allege that the

defendant's breach of his legal duty was both the proximate and actual cause of injury.” Lopez v.

CSX Transp., Inc., 269 F. Supp. 3d 668, 673 (W.D. Pa. 2017) (citations omitted). “Actual

causation is present when the alleged injury would not have occurred but for a certain act or

presence of a condition . . . while proximate causation requires that the defendant's wrongful act

be a substantial factor in bringing about the plaintiff's harm.” Jd. (citations omitted).

“A proximate, or legal cause, is defined as a substantial contributing factor in bringing

about the harm in question. Although there can be more than one proximate cause, all factual

(but for) causes are not necessarily proximate causes.” Van Buskirk v. Carey Canadian Mines,

Ltd., 760 F.2d 481, 492 (3d Cir. 1985) (citation omitted).

The following considerations are deemed important under the Restatement's

“substantial factor” test to determine proximate cause: (1) the number of factors

other than the actor’s conduct that contributed to producing the harm and the

extent of their contribution; (2) whether the actor's conduct created a force or

series of forces that were in continuous and active operation up to the time of the

harm, or created a situation harmless unless acted upon by other forces for which

14

the actor is not responsible; and (3) the lapse of time between the actor’s conduct

and the harm.

Heeter v. Honeywell Int’l, Inc., 195 F. Supp. 3d 753, 759 (E.D. Pa. 2016), aff'd sub nom. Heeter

v. Honeywell Int’l Inc., 706 F. App’x 63 (3d Cir. 2017). “[Q]uestions of proximate cause are

typically reserved for the jury.” Lopez, 269 F. Supp. 3d at 673-74 (quoting Vanesko v. Marina

Dist. Dev. Co., LLC, 38 F. Supp. 3d 535, 543 (E.D. Pa. 2014)); see also David v. Broadway

Maint. Corp., 451 F. Supp. 877, 882 (E.D. Pa. 1978) (‘Although a jury might well reach the

contrary conclusion on either or both of these issues, that is plainly no warrant for resolving the

proximate cause issue as a matter of law. So long as a jury reasonably could find that the

defendant's conduct proximately caused the plaintiff's injuries, the plaintiff is entitled to a jury

determination on that issue.”). A court may determine proximate cause as a matter of law where

it finds that a jury could not reasonably differ on the issue. Lopez, 269 F. Supp. 3d at 674; see

also Lux v. Gerald E. Ort Trucking, Inc., 887 A.2d 1281, 1287-88 (Pa. Super. 2005) (stating that

proximate cause is a question of law to be determined by the court before the issue of actual

cause may be put to the jury.).

As explained above, no evidence was adduced in discovery as to what caused the odor on

the bus, where it came from, what it was, and how it could be harmful. More significantly, no

evidence was adduced showing that what occurred on the bus caused Mrs. Auboug’s alleged

injuries. As Defendants accurately note, despite being given an extension of time, Mrs. Auboug

has not obtained a single expert report. At her deposition, Mrs. Auboug acknowledged that no

treating physician stated that her alleged injuries were caused by the incident on the Eyre bus.

Furthermore, in her Response to Defendants’ motions, she admits that no medical records

attribute any of her medical problems to what occurred on the Eyre bus. (ECF No. 57, p. 4).

While Mrs. Auboug’s records indicate a diagnosis of fibromyalgia, none of them contain any

15

indication that the condition arose because of or was made worse by the alleged incident on the

bus. Again, not a single note from a single doctor attributed any harm to the incident on the bus.

Mrs. Auboug counters that the lack of medical evidence tying her condition to exposure

of fumes on the bus and the silence of her medical records on the same is evidence of a

conspiracy of silence among her treating physicians. Mrs. Auboug believes that all of the

doctors who have treated her since the bus incident have lied and chosen not to diagnose her

symptoms and medical conditions as being caused by the “toxic fumes” on the Eyre bus. (ECF

No. 57, pp. 4, 14-21).

The Court has carefully reviewed all of the exhibits Mrs. Auboug mailed to it,> which she

contends “show a causal connection with chemical inhalation and its connection to myocardial

and additional injuries. A medical expert will determine this to be the case.” (ECF No. 57, p.

14). The Court is no medical expert, but it is readily apparent that the exhibits proffered by Mrs.

Auboug, particularly her medical records, do not establish a causal link. There is nothing in the

materials submitted to the Court which could support a finding of the requisite causation of her

health condition by the fume discharge on the bus.

Auboug mailed a flash drive to the Court. On it are various folders containing documents

marked as exhibits with no set numbering pattern, all of which the Court could access except for

Exhibits 2.1 and 3. Exhibits 4, 5, 6.1, 6.2, 6.3, 7, 8 and 14 are reproductions of pleadings in this

case. There is video footage from August 15, 2017, capturing what the Court believes to be Mrs.

Auboug walking across a room at Christian Northeast Hospital. Other exhibits consist of various

information about the Amtrak derailment, Eyre bus trip information (e.g., flyers, passenger lists,

seating chart), and Mrs. Auboug’s hotel and airport expenditures (see Exhibits 9.1., 9.2, 9.3, 9.4,

10, 11, 12, 18.2). Mrs. Auboug included as exhibits her own timelines and/or notes regarding

her alleged misdiagnoses as Exhibits 13, 17.2, 17.3, 18.3, 23.3. She marked as exhibits

ambulance and medical records, medical insurance information, her correspondence with

medical facilities and/or agencies about her medical conditions, and a letter terminating her

employment (see Exhibits 16, 17.1, 18, 19-21.1, 23.1, 23.2, 23.4, 23.5, 24, 25.1, 26, 27, 28, 28.1,

and 29). Defendants have not commented on the accuracy or inaccuracy of these documents,

and neither can the Court. Regardless, none of the exhibits offered by Mrs. Auboug constitute

sufficient factual evidence to overcome Defendants’ motions.

16

Defendants also argue that Mrs. Auboug cannot proceed to a jury without obtaining an

expert opinion because it is not readily apparent to lay persons that what allegedly occurred on

the bus (of which she has adduced no evidence) caused her subsequent medical conditions and

alleged injuries particularly where no medical documentation supports her theory of relief. In

other words, Mrs. Auboug has failed to offer an expert opinion that explains the link between her

alleged injuries/medical conditions and what allegedly occurred on the Eyre bus. See Smith v.

German, 253 A.2d 107, 108 (Pa. 1969) (“Where there is no obvious causal relationship,

unequivocal medical testimony is necessary to establish the causal connection.” (citation

omitted)). The Court afforded Mrs. Auboug every opportunity to secure an expert opinion in

support of her claims. She failed to do so. As it stands, there is no evidence of causation in the

record before the Court. As such, there is no genuine dispute of material fact as to causation, and

no reasonable jury could find in favor of Mrs. Auboug as to Counts I and IJ. Summary

judgment will be entered in favor of Defendants as to these counts.

C. Mr. Auboug’s loss of consortium claim (Count V) fails.

Because Counts I and III do not survive summary judgment, Mr. Auboug’s loss of

consortium claim, Count V, also fails. This is so because “[a]ny action for loss of consortium is

derivative, depending for its viability upon the substantive merit of the injured party's claims.”

See Schroeder vy. Ear, Nose & Throat Assocs. of Lehigh Valley, Inc., 557 A.2d 21, 22 (Pa. Super.

1989) (citing Boarts v. McCord, 511 A.2d 204 (Pa. Super. 1986)); Sutcliffe v. Bernese, No. 4:19-

cv-00317, 2019 WL 3776560, at *3 (M.D. Pa. Aug. 12, 2019) (same). Summary judgment will

be granted in favor of Defendants as to Count V.

17

IV. CONCLUSION

Defendants’ motions will be granted and summary judgment will be entered in favor of

Defendants and against Plaintiffs as to the remaining claims—Counts I, II, and V. Orders of

Court will follow.

BY THE COURT:

% eo □

21AA_S

WILLIAM S. STICKMAN IV

UNITED STATES DISTRICT JUDGE

raf telz

Dated

18