Gloria Andrews v. Norfolk Southern Railway Company

02/12/2019

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

January 15, 2019 Session

GLORIA ANDREWS, ET AL. v. NORFOLK SOUTHERN RAILWAY

COMPANY

Appeal from the Circuit Court for Knox County

No. 2-468-11 William T. Ailor, Judge

No. E2018-00508-COA-R3-CV

This appeal arises from a widow’s suit over her husband’s alleged exposure to asbestos.

Raymond Andrews (“Decedent”) worked for Norfolk Southern Railway Company

(“Norfolk Southern”) for 24 years before retiring. He later died of lung cancer.

Decedent’s wife, Gloria Andrews (“Plaintiff”), sued Norfolk Southern in the Circuit

Court for Knox County (“the Trial Court”) under the Federal Employers’ Liability Act

(“FELA”) alleging that her late husband had been exposed to asbestos while working for

Norfolk Southern. Norfolk Southern filed several evidentiary motions which the Trial

Court granted. Norfolk Southern subsequently filed a motion for summary judgment,

which also was granted. Plaintiff appeals to this Court raising several evidentiary issues.

We hold that the Trial Court did not err in excluding lay testimony regarding the presence

of asbestos in areas where Decedent worked because these witnesses lacked personal

knowledge about the alleged asbestos. Plaintiff was unable to produce any admissible

evidence at the summary judgment stage to support her claim that Norfolk Southern

failed to maintain a safe working environment. We affirm the judgment of the Trial

Court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed;

Case Remanded

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which THOMAS R.

FRIERSON, II and W. NEAL MCBRAYER, JJ., joined.

H. Douglas Nichol, Knoxville, Tennessee; and, Robert F. Daley and Elizabeth A.

Chiappetta, Pittsburgh, Pennsylvania,1 for the appellant, Gloria Andrews, Administratrix

of the Estate of Raymond Andrews.

1

These attorneys were admitted pro hac vice.

John W. Baker, Jr. and Emily L. Herman-Thompson, Knoxville, Tennessee, for the

appellee, Norfolk Southern Railway Company.

OPINION

Background

Decedent worked for Norfolk Southern from 1965 until his retirement in 1989.2

During his career with the railroad, Decedent worked as a brakeman, trainman, and

locomotive engineer. In 2000, Decedent was diagnosed with lung cancer. In November

2002, Decedent died from his illness at the age of 63.

In September 2011, Plaintiff sued Norfolk Southern in the Trial Court alleging that

her late husband had been exposed to asbestos on the job and that this exposure caused

Decedent’s lung cancer. Notably, Decedent was a long-time cigarette smoker, having

started smoking at age 13 and carrying on at the clip of one pack per day until 2000.

Throughout this case, Norfolk Southern has pointed to Decedent’s smoking habit as the

cause of his lung cancer rather than any workplace exposure to asbestos.

Norfolk Southern filed a number of evidentiary motions, which the Trial Court

granted. These motions targeted several pieces of Plaintiff’s evidence: historical

documents from the Association of American Railroads and the Association of Railway

Claim Agents; lay testimony regarding the presence of asbestos in areas where Decedent

worked; “State of the Art” knowledge evidence; and OSHA regulations.

A major pillar of Plaintiff’s case excluded was the testimony of Dr. Arthur Frank,

an expert in occupational medicine, as to causation. In a deposition, Dr. Frank testified

to his belief that Decedent’s lung cancer was brought about, at least in part, by exposure

to asbestos:

Q. Mr. Andrews worked during the diesel era?

A. He did. I don’t know exactly when the steam era left that railroad, but

he started there, what, in ’60...

Q. 5.

A. -- 5. That would have most likely have been the diesel era, and diesel

engines are well known to have asbestos on them.

Q. Okay. He didn’t work in maintenance?

A. No.

2

Southern merged with Norfolk & Western in the 1980s to become Norfolk Southern.

-2-

Q. He wasn’t a shop worker?

A. No. He was a trackman, conductor, fireman and engineer.

Q. He did not work with or handle asbestos or products that may have had

some asbestos in them?

A. I don’t know exactly what his job duties were. He was probably -- when

you say “handled”, I can’t speak to what he handled. I can say that he was

around asbestos-containing materials.

Q. But you don’t have any evidence that he worked with asbestos-

containing materials by cutting or mixing or touching or anything along

those lines?

A. Correct.

Q. At most, he was around it some on occasion as a bystander?

A. He may have been a bystander when others were working with it, or his

time as a fireman or engineer may have brought him in contact with it

directly when he was in the cab of engines. I have no knowledge of which

specific locomotives he worked on, but there are locomotives where there

were asbestos-wrapped pipes that workers have often reported they would

rest their feet on, for example.

Q. You don’t have any evidence of that in this case, do you?

A. I said I don’t know specifically what his -- I don’t know anything about

which locomotives he worked on, so I have no knowledge about that. That

knowledge and information would be available. There was even one

locomotive I’ve heard of where the toilet facilities were at the head of the

locomotive -- I guess it was running long head forward -- and you’d have to

walk through a passageway to get there that was sprayed with asbestos.

I’ve heard those situations as well. So, there were clearly situations that

engineers and firemen would have been exposed to asbestos on the

equipment they worked.

Q. You believe that this exposure to asbestos played a role in causing this

lung cancer?

A. Yes.

Q. This relationship between asbestos exposure and lung cancer, is this a

dose-response relationship?

A. Yes, it is.

Q. The more exposure you have, the more likely you are to get the disease?

A. Yes.

Q. Is it true that you can be exposed to asbestos and never get sick from it?

A. Absolutely. We are all exposed to it. We all don’t get asbestos disease.

Q. You can certainly be exposed and never develop lung cancer because of

it?

A. Correct.

-3-

Q. Asbestos is a naturally-occurring substance?

A. Yes.

Q. If I walked downtown here in Philadelphia --

A. You are downtown, but if you walked around outside.

Q. I walked around downtown outside, would I be exposed to asbestos?

A. Yes, sir.

Q. Am I exposed to asbestos in this room?

A. I would think so.

***

Q. If all you had in terms of an exposure history was exposure levels at

background, you would be unable to attribute that person’s lung cancer to

asbestos exposure, wouldn’t you?

A. If I am presented with the facts of the case that an individual’s exposure

to asbestos was nothing other than background, then I would not come into

a court and tell a jury with a reasonable degree of medical certainty that

asbestos was the cause of that person’s lung cancer. If I --

Q. Thank you.

A. -- if I could just finish.

Q. I thought you were through. I’m sorry.

A. -- if I have any evidence of exposure above background, even, for

example, where there is background and then similar levels are given off in

the workplace, what started out as “X” exposure is now “2X” exposure,

then it becomes more likely than not that asbestos was a contributing cause.

Q. So, you are an advocate of the any exposure theory above background is

causative?

A. Yes.

Q. Okay. Where can I go to read about that theory?

A. You can read all you want about carcinogenesis theory that tells you that

no level of exposure to a cancer-causing agent should be considered as safe.

It’s exactly what I lectured my class yesterday. You can read that --

Q. Where -- I’m sorry.

A. If you want to -- go read Michael Potter’s work on carcinogenesis

theory. He was writing about this in the mid 1970s.

Q. What peer-reviewed article of Mr. Potter’s can you refer me to on that?

A. That was Doctor Potter, and --

Q. Doctor Potter.

A. -- I was taking a graduate-level course on carcinogenesis theory from

him at the National Cancer Institute, and I, frankly, don’t remember which

articles he used to teach us that.

-4-

Q. So, you can’t tell me that there are, in fact, any articles?

A. There are plenty of documents addressing specific carcinogens such as

asbestos where OSHA and NIOSH, the EPA have all said -- IARC, I

believe, have all said there is no known safe level to asbestos. The

American Petroleum Institute in a document in 1948 said that the only safe

level of exposure to benzene was zero. So, there are those kinds of

writings, but they weren’t ubiquitous with regard to every known

carcinogen, but the same principle does, in fact, apply.

In its order granting Norfolk Southern’s motion to exclude Dr. Frank’s testimony,

the Trial Court stated as relevant:

(1) That there is no testimony of any scientific evidence that the

“any exposure theory” presented by Dr. Frank upon which he has based his

causation opinion has been tested and the methodology by which it has

been tested;

(2) There is no testimony that any evidence has been subject to peer

review or publication on Dr. Frank’s “any exposure theory,” or that it has

been tested;

(3) There is no testimony as to a potential rate of error of the theory

is known;

(4) There is no testimony that the evidence concerning Dr. Frank’s

“any exposure theory” is generally accepted in the scientific community;

(5) There is no testimony that Dr. Frank’s research in the field on the

subject of the “any exposure theory” has been conducted independent of

litigation.

The Court finds that the essential factors contained in Rule 702 and

703 of the Tennessee Rules of Evidence, have not been met and Dr. Frank’s

medical causation opinion fails to satisfy Tennessee’s Standards for the

Admissibility of Expert Opinion Testimony. The Court further finds that

pursuant to Rule 403 of the Tennessee Rules of Evidence, that the

testimony’s probative value is outweighed by its prejudicial effect based

upon the complexity of the case and other evidence to be presented to the

jury.

Accordingly, it is ORDERED that Dr. Arthur Frank will not be

allowed to testify at the trial of this case on the issue of specific medical

causation and will not be allowed to testify that exposure of Raymond

Andrews to asbestos caused or contributed to cause Mr. Andrews’ lung

cancer.

-5-

The Trial Court also entered an order excluding certain lay testimony as to the

presence of asbestos in Decedent’s workplace. In its oral ruling attached to its order, the

Trial Court stated in part:

[T]he reason the Court asked about whether or not the plaintiff’s witnesses

could identify the supervisor who may have told them, because if -- under

Rule 803(1.2), that may have been admissible under the exception.

Based on the statements made in what the Court has reviewed, the

Court does not feel that that exception applies, then under (3) Then Existing

Mental, Emotional, or Physical Condition, “A statement of the declarant’s

then existing state of mind, emotion, sensation, or physical condition (such

as intent, plan, motive, design, mental feeling, pain, and bodily health)” --

the Court was curious about that as well, but the rule goes on to state “but

not including a statement of memory or belief to prove the fact

remembered.”

So based on what the Court has reviewed, the Court does not believe

that the lay witnesses will have sufficient foundation to be able to testify

that asbestos was contained in the areas where Mr. Andrews worked. They

can testify as to what they saw, what they observed, and anything with

regard to matters of that nature, however, so the Court will not exclude any

testimony with regard to that.

Following its success on the evidentiary motions, Norfolk Southern filed a motion

for summary judgment. The Trial Court granted Norfolk Southern’s motion for summary

judgment. In its February 2018 order, the Trial Court stated as pertinent:

This matter came on to be heard on the Defendant’s Amended

Motion for Summary Judgment, the response of the Plaintiff in opposition

to the motion as well as the other filings by the parties and the arguments of

counsel. The Defendant argues that pursuant to Tenn. R. Civ. P. 56 they

are entitled to summary judgment as there are no genuine issues of material

fact and they are entitled to a judgment as a matter of law.

The Defendant’s motion is based on three (3) grounds:

1. FELA requires Plaintiff to offer “expert testimony on the issue of

specific medical causation unless the injury involved has such an obvious

causal origin that lay jurors can assess causation based on their common

knowledge and experience;”

2. Plaintiff cannot establish notice by her own admission and based on the

Court’s prior rulings;

-6-

3. Plaintiff cannot prove that the “decedent was exposed to disturbed

friable3 asbestos source (above background levels) in his work;”

In response, the Plaintiff asserts that:

1. The Defendant has failed to rebut ALL essential elements of the

Plaintiff’s claim;

2. The Plaintiff will be able to offer expert testimony on general causation

regarding the medical relationships of lung cancer and asbestos exposure

and will be able to offer expert and lay testimony as to the presence of

asbestos at decedent’s workplace and that under FELA the jury may infer

specific causation from this general testimony.

3. Under FELA the standard for causation is relaxed and the jury can

determine causation from circumstantial evidence from lay and expert

testimony;

4. Under FELA Plaintiff only has to prove causation by more than a

“scintilla of evidence”.

***

The Court in prior rulings has excluded Plaintiff’s evidence

concerning the speculative testimony of the Plaintiff and his co-workers

who were told about asbestos and saw what they thought and assumed was

asbestos as speculative and not corroborated and therefore not trustworthy

and likely to confuse a jury and the prejudicial value outweighing the

probative value. There has been no testimony of any friable asbestos

material which as one of Plaintiff’s experts, Dr. Vance, said creates a

hazard. (p. 132, Vance Depo.) In fact, taking the facts in the light most

favorable to the non-moving party, there is no testimony of any asbestos

containing material in a dangerous condition that the Plaintiff was exposed

to.

Regarding Defendant’s first argument that FELA requires expert

testimony concerning causation, Defendant argues that the Court’s ruling

on February 3, 2015 concerning Dr. Frank’s causation testimony and that

the testimony of the decedent’s treating oncologist, Dr. Bruce Avery, M.D.

does not have expertise in asbestos-related lung cancer and does not, and

cannot offer any opinion on medical causation as to asbestos within a

reasonable degree of medical certainty and therefore, the Plaintiff cannot

meet her burden concerning expert testimony in a toxic exposure case.

3

“Friable” asbestos refers to asbestos that is loose or airborne.

-7-

In reviewing the case law cited by Plaintiff, the Court reviewed

Hardyman v. Norfolk and Western, 243 F. 3rd 255 (2001), which stated, “we

recognize FELA to be a remedial and humanitarian statute ... enacted by

Congress to afford relief to employees from injury incurred in the railway

industry.” Mounts v. Grand Trunk W. R.R., 198 F.3d 578, 580 (6th Cir.

2000) (quoting Edsall v. Penn Cent. Transp. Co., 479 F.2d 33, 35 (6th Cir.

1973)). Congress intended FELA to be a departure from common law

principles of liability as a “response to the special needs of railroad workers

who are daily exposed to the risks inherent in railroad work and are

helpless to provide adequately for their own safety.” Aparicio v. Norfolk &

W. Ry. Co., 84 F.3d 803, 807 (6th Cir. 1996) (quoting Sinkler v. Missouri

Pac. R.R. Co., 356 U.S. 326, 329, 78 S.Ct. 758, 2 L.Ed.2d 799 (1958)).

The Defendant has offered witnesses who have tested the

locomotives that Mr. Andrews worked on who have each testified that there

was not asbestos in the areas of the locomotive where Mr. Andrews

worked. Under FELA the Plaintiff does not have to prove that the

asbestosis was caused solely by the negligence of the Defendant only that is

[sic] either caused it or contributed to it.

Dr. Avery, M. D., the Plaintiff’s oncologist, testified that the only

information he had concerning Mr. Andrews’ was either provided by Mr.

Andrews and his own treatment of him and that he could not offer

testimony within a reasonable degree of medical certainty that Mr.

Andrews’ lung cancer was caused by asbestos exposure.

The Court further finds that the testimony of Dr. Vance is not

sufficient to be submitted to a jury as his testimony is not based on any

testing he has done or his own experience or knowledge and is not reliable

under rule 702 and 703 of the TRE. Dr. Vance testified that he cannot to a

reasonable degree of certainty give an opinion that Mr. Andrews was

exposed to asbestos from the ceilings of locomotives. (Depo. p. 120) He

has not seen any evidence of asbestos or abatement of the same in the

dormitories that Mr. Andrews stayed in at the John Sevier yard. (Depo. p.

121) He has never been on a diesel locomotive, seen a cab heater and never

been in, studied or conducted any sampling of any railroad environment.

There is no evidence of asbestos containing products where Mr. Andrews

worked or that if there were that they were in a friable condition. There is

no proof that there was asbestos above background levels that everyone is

subjected to on a regular basis. The Court must have some reliable dat[a]

to allow an expert to base his opinion on. Here that is not the case.

The testimony of the co-workers of Mr. Andrews that there was

asbestos containing material was determined to be unreliable as it was

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third-hand information that could not be corroborated and was otherwise

speculative.

The defendant cited Aparicio v. Norfolk & Western Ry. Co., 84 F. 3d

803, (1996) which does not apply in this case as it deals with carpel tunnel

syndrome which was diagnosed by an orthopedic surgeon after the plaintiff

complained of numbness and tingling in his hand. In that case, the

plaintiff’s work history showed that he was subject to repetitive use of his

hands as a result of his work requirements using tools such as air tampers,

jack hammers, impact wrenches, claw bars, anchor wrenches, grinders, and

spiking guns. The case before this Court is a toxic exposure case and thus

the proof is more exacting.

***

In this case, the Defendant has negated an essential element of the

plaintiff’s case, the negligence of the Defendant to provide a safe work

environment free from toxic exposure to asbestos. The testimony of the

Plaintiff’s witnesses as to possible exposure to asbestos has been

speculative and not sufficient to meet the burden to show that the

Defendant was negligent or that there was friable asbestos such that could

cause or contribute the condition of the Plaintiff. The Plaintiff’s proof is of

such a speculative nature and has not tied anything to the Defendant that

would show that the Defendant was negligent or that there was asbestos in

such a form that would expose Plaintiff to dangerous levels causing or

contributing to his condition. Therefore, the plaintiff has been unable to

bring forth evidence that this plaintiff was exposed to asbestos as a result of

the negligence of the defendant and as a result the Motion for Summary

Judgment is granted.

IT IS THEREFORE ORDERED that the Defendant’s Motion for

Summary Judgment is hereby granted.

(Footnote added). Plaintiff timely appealed to this Court.

Discussion

We restate and consolidate the several issues Plaintiff raises on appeal into the

following single dispositive issue: 1) whether the Trial Court erred in granting summary

judgment in favor of Norfolk Southern on the basis that Plaintiff failed to submit any

admissible evidence that Decedent ever was exposed to asbestos at his work such that

Norfolk Southern could be found liable for his illness.

-9-

As our Supreme Court has instructed regarding appellate review of a trial court’s

ruling on a motion for summary judgment:

Summary judgment is appropriate when “the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the

affidavits, if any, show 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.”

Tenn. R. Civ. P. 56.04. We review a trial court’s ruling on a motion for

summary judgment de novo, without a presumption of correctness. Bain v.

Wells, 936 S.W.2d 618, 622 (Tenn. 1997); see also Abshure v. Methodist

Healthcare–Memphis Hosp., 325 S.W.3d 98, 103 (Tenn. 2010). In doing

so, we make a fresh determination of whether the requirements of Rule 56

of the Tennessee Rules of Civil Procedure have been satisfied. Estate of

Brown, 402 S.W.3d 193, 198 (Tenn. 2013) (citing Hughes v. New Life Dev.

Corp., 387 S.W.3d 453, 471 (Tenn. 2012)).

***

[I]n Tennessee, as in the federal system, when the moving party does not

bear the burden of proof at trial, the moving party may satisfy its burden of

production either (1) by affirmatively negating an essential element of the

nonmoving party’s claim or (2) by demonstrating that the nonmoving

party’s evidence at the summary judgment stage is insufficient to establish

the nonmoving party’s claim or defense. We reiterate that a moving party

seeking summary judgment by attacking the nonmoving party’s evidence

must do more than make a conclusory assertion that summary judgment is

appropriate on this basis. Rather, Tennessee Rule 56.03 requires the

moving party to support its motion with “a separate concise statement of

material facts as to which the moving party contends there is no genuine

issue for trial.” Tenn. R. Civ. P. 56.03. “Each fact is to be set forth in a

separate, numbered paragraph and supported by a specific citation to the

record.” Id. When such a motion is made, any party opposing summary

judgment must file a response to each fact set forth by the movant in the

manner provided in Tennessee Rule 56.03. “[W]hen a motion for summary

judgment is made [and] . . . supported as provided in [Tennessee Rule 56],”

to survive summary judgment, the nonmoving party “may not rest upon the

mere allegations or denials of [its] pleading,” but must respond, and by

affidavits or one of the other means provided in Tennessee Rule 56, “set

forth specific facts” at the summary judgment stage “showing that there is a

genuine issue for trial.” Tenn. R. Civ. P. 56.06. The nonmoving party

“must do more than simply show that there is some metaphysical doubt as

-10-

to the material facts.” Matsushita Elec. Indus. Co., 475 U.S. at 586, 106 S.

Ct. 1348. The nonmoving party must demonstrate the existence of specific

facts in the record which could lead a rational trier of fact to find in favor of

the nonmoving party. If a summary judgment motion is filed before

adequate time for discovery has been provided, the nonmoving party may

seek a continuance to engage in additional discovery as provided in

Tennessee Rule 56.07. However, after adequate time for discovery has

been provided, summary judgment should be granted if the nonmoving

party’s evidence at the summary judgment stage is insufficient to establish

the existence of a genuine issue of material fact for trial. Tenn. R. Civ. P.

56.04, 56.06. The focus is on the evidence the nonmoving party comes

forward with at the summary judgment stage, not on hypothetical evidence

that theoretically could be adduced, despite the passage of discovery

deadlines, at a future trial.

Rye v. Women’s Care Cntr. of Memphis, MPLLC, 477 S.W.3d 235, 250, 264-65 (Tenn.

2015).

The most significant case on FELA and asbestos claims in recent years in

Tennessee comes from our Supreme Court in Payne v. CSX Transportation, Inc., 467

S.W.3d 413 (Tenn. 2015). In Payne, a retired railroad worker sued his former employer

after he was diagnosed with lung cancer. The plaintiff in that case was exposed to

multiple harmful substances including radiation, fumes, and asbestos. The matter

proceeded to a jury trial. Payne, while not squarely analogous, is useful for the present

case insofar as it grappled with the sort of evidentiary issues implicated herein.

In 1908, Congress enacted FELA as a means by which railroad workers could

obtain compensation for their workplace injuries. Payne, 467 S.W.3d at 434-35; 45

U.S.C. § 51.4 Federal substantive law governs FELA claims. Id. at 435. “[I]n order to

prove the element of causation, a FELA plaintiff need only show that the railroad’s

negligence ‘played any part, even the slightest, in producing the injury or death for which

damages are sought.’ ” Id. at 436 (quoting Rogers v. Mo. Pac. R.R., 352 U.S. 500, 506,

77 S.Ct. 443, 1 L.Ed.2d 493 (1957)). In Payne, our Supreme Court went on to find that

the qualitative and differential diagnoses conducted by the plaintiff’s experts were valid

and that it was “well within the province of the jury to review the expert testimony and

determine whether Mr. Payne’s exposure to asbestos, diesel fumes, or radiation was

substantial enough to be a contributing cause of his cancer.” Id. at 457-58.

4

“The only possible defendants are railroads engaged in interstate commerce. The only possible

plaintiffs are the employees of those railroads who are injured on the job.” Payne, 467 S.W.3d at 435 n.

16 (quoting CSX Transp., Inc. v. Miller, 159 Md.App. 123, 858 A.2d 1025, 1029 (2004)).

-11-

On appeal, Plaintiff correctly asserts that her case was gutted by the Trial Court’s

evidentiary rulings. That, however, does not mean the Trial Court was in error.

According to Plaintiff, these rulings as well as the grant of summary judgment to Norfolk

Southern should be overturned in light of Payne’s holding concerning the admission of

qualitative analysis and lay testimony. Norfolk Southern, as one might expect, argues in

response that Payne is distinguishable and that the Trial Court properly excluded the

evidence.

In our judgment, the threshold question is whether Plaintiff submitted any

admissible evidence that Decedent was exposed to asbestos while working for Norfolk

Southern. Plaintiff’s case that Decedent was exposed to asbestos rests on the testimony

of lay witnesses that the Trial Court excluded. It is on the basis of these lay witness

accounts that Plaintiff’s expert evidence is anchored.

We turn again to Payne, which addressed lay witness testimony in an asbestos

context. Our Supreme Court, in concluding that the trial court did not err in admitting lay

witness testimony about asbestos, discussed as follows:

The Defendant next argues that the admission of lay testimony

regarding the presence of asbestos in the workplace warranted a new trial.

In particular, the Defendant points to the testimony by Mr. Payne, Mr.

Carringer, who was a co-worker, and Mr. Rhodes, a railroad employee who

worked under similar conditions, indicating that they had worked in close

proximity to materials that contained asbestos, including pipe insulation

and brake components. The Defendant insists that this testimony should

have been excluded because asbestos can injure a person only if it is in a

respirable form, as often occurs when a product containing asbestos is

frayed or damaged in some way; thus, according to the Defendant, the

“presence of an [asbestos containing material] alone does not entitle a

FELA claimant to recovery.”

The Defendant’s argument focuses on the sufficiency of the lay

testimony to establish the Plaintiff’s asbestos claim, whereas the proper

inquiry is whether the testimony met the standards for admissibility.

Admissibility is determined primarily by the evidentiary rules governing

relevance, unfair prejudice, and competence. In this instance, the lay

witnesses were competent to testify because they had personal knowledge

of the presence of asbestos in their workplaces. Tenn. R. Evid. 602.

Regardless of whether their testimony was sufficient to independently

satisfy the requirements of a FELA claim, the evidence was relevant in that

it made the existence of an injury resulting from asbestos exposure “more

-12-

probable ... than it would be without the evidence.” Tenn. R. Evid. 401.

The Defendant does not claim that the evidence should be excluded on the

basis of unfair prejudice or any other ground of inadmissibility set out in

Tennessee Rule of Evidence 403. The Defendant instead claims that the lay

testimony was improper under Tennessee Rule of Evidence 701(a), which

provides that non-expert witnesses may testify as to opinions only when

they are “rationally based on the perception of the witness” and are either

“helpful to a clear understanding of the witness’s testimony or the

determination of a fact in issue.”

Rule 701(a) authorizes the admission of this testimony. Mr. Payne

and Mr. Carringer merely testified to the presence of asbestos without

offering a scientific opinion as to whether the condition of the asbestos

rendered it capable of causing injury. Although Mr. Rhodes indicated that

he had seen “friable” asbestos, his testimony was based upon his training in

the field of asbestos removal. See Gibson v. W.C.A.B. (Armco Stainless &

Alloy Prods.), 580 Pa. 470, 861 A.2d 938, 948 (2004) (noting that a lay

witness may provide a technical opinion regarding asbestos in the

workplace based upon “either formal education or practical experience”).

Under these circumstances, Judge Wimberly did not err by admitting the

lay testimony regarding the presence of asbestos in the witnesses’

workplaces, and the admission of that testimony did not warrant a new trial.

See Clark v. ITT Grinnell Indus. Piping, Inc., 141 N.C. App. 417, 539

S.E.2d 369, 374 (2000) (holding that lay testimony as to the presence of

asbestos in the workplace “was competent evidence to support the ...

finding that plaintiff was exposed to asbestos”), remanded for

reconsideration on other grounds, 354 N.C. 572, 558 S.E.2d 867 (2001);

Olinger v. Pretty Prods., Inc., No. 96-CA-29, 1997 WL 33814208, at *4

(Ohio Ct.App. Nov. 7, 1997) (holding that lay testimony as to the presence

of asbestos in the workplace, which was based upon personal knowledge of

employees, was properly admitted); Perman v. C.H. Murphy/Clark–

Ullman, Inc., 220 Or.App. 132, 185 P.3d 519, 523 (Or.Ct.App.2008)

(holding that lay testimony as to the presence of asbestos in the workplace

was admissible because it was rationally based upon the perception of the

witness).

Payne, 467 S.W.3d at 445-46.

In the present case, Plaintiff points to various pieces of evidence that Decedent

was exposed to asbestos while working for Norfolk Southern. In a deposition conducted

as part of litigation prior to his demise, Decedent himself stated as follows:

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Q. Let’s switch gears and tell me about locomotives. What type of

locomotives had asbestos on them?

A. Well, you got me again.

Q. What was the asbestos doing? Where was it in the locomotive?

A. I imagine it was the ceiling, because the ceiling was ripped out. You

know what I mean? It’s been so long, I’m trying think of the name of the

engines. But it’s been so long I can’t remember the name of those engines

and things.

***

Q. Where on those locomotives when you were a brakeman that series or

that age locomotive back in the late sixties, where was the asbestos, as best

you know, or whatever you were told?

A. It was -- we had some heaters, you know, floor line pipe.

Q. Okay.

A. And also I was told that some of the -- think they call them L-7s had out

of the ceiling. I can’t swear to that, but I was told that.

Q. So in the late sixties the best memory you have is working on

locomotives that had some heater pipes that may have been wrapped with

asbestos down on the floor of the cab?

A. Right.

Q. And you were told may have even had some asbestos in the ceilings of

the locomotive?

A. Right.

In her own deposition, Plaintiff stated:

Q. So do you know anything about asbestos?

A. Very little.

Q. Would you be able to tell if something was asbestos or wasn’t asbestos?

A. No.

Q. And you don’t have any personal knowledge about any asbestos-

containing materials that would have been on any locomotive, do you?

A. Well, according to my husband -- I don’t have proof, but my husband

stated that they did tear some asbestos out of an engine that he was on.

Q. That he was on, while he was on it?

A. Yes.

Q. Tell me about that.

A. He just said that they came in and cleared out the, I think, the ceiling or

the roof of the engine --

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Q. Okay --

A. -- that contained asbestos.

Russell K. Anderson, a trainman and conductor, stated as follows:

Q. Okay. And pipes, you don’t know what covered the pipes, do you?

A. Well, there were a lot of white taping that was on the pipes, and I was

told later that it had asbestos in it.

Q. Who told you such a thing?

A. Well, I was told by some of the inspectors that had examined me, and

also some of the people that -- not railroad people, that I know of.

Q. Just your lawyers?

A. Yes.

Q. Okay. But you personally, of your own personal knowledge, don’t

know what that white stuff was, of your own personal knowledge?

A. Well, it was just used to insulate the pipes is all I really know.

Continuing with Plaintiff’s lay witnesses, locomotive engineer James Greenlee, Sr.

stated:

Q. Now, did anyone ever tell you the brake shoes might have some asbestos

in them?

A. We had -- speaking of some of the things that asbestos was involved in,

some of the makeup, composition of the shoes, if I’m not mistaken, I’m

more than sure they had asbestos in them.

Q. Who told you that?

A. That was talking amongst other fellow workers that had come in contact.

Q. Oh, okay.

A. I don’t know -- I’m not no authority on this, that, and the other, so I

wouldn’t know. But just in general conversation.

Q. So that would be like hearsay, somebody told you that they thought that

some of the brake shoes might have asbestos in them, right?

A. Well, when we read certain magazines, railroad magazines, it told us

that they had composition asbestos.

Q. Uh-huh.

A. Through our unions and magazines and like that.

Q. Okay.

A. So . . .

Q. Now, you wouldn’t know what asbestos looks like, would you?

A. No, I wouldn’t.

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Jack Edmondson, a brakeman and conductor, stated:

Q. So you’re saying that on the F7s you had a grated ceiling --

A. A grated ceiling.

Q. Grated, G-R-A-T-E-D, ceiling?

A. Yes.

Q. With little holes in it?

A. Yeah.

Q. Okay. And that -- do you know what was underneath the grate?

A. Well, I didn’t until I --

Q. If anything?

A. Pardon?

Q. If anything?

A. Yeah, I’m fixing to tell you anything. I had been working a week or ten

days or something. You make a hard coupling -- because I’m on the lead

locomotive with the engineer and they make a hard coupling back here, the

trainman did or the conductor, and this stuff come down out of the ceiling.

So I say to Joe or Bill or Sam, whoever is running the engine, I said, “Mr.

Kesterson, what’s that a-falling? Is that dirt?” And he said, “No. That’s

asbestos.”

Q. The engineer told you that?

A. Yeah. I said, “What’s asbestos?” Because honestly I didn’t know. And

he explained to me it was the insulation material. But I’ll tell you what, the

phrase I used, is I would always tell everybody it looked like a Texas dust

storm.

***

Q. All right. You don’t have any independent specific knowledge of the

composition of any of the insulation that was used on any of these pipes or

any part of any locomotive, do you, independent knowledge?

A. No. Just what I was told.

Q. And who were the people who did the telling?

A. Just the old-timers that had been there -- well, the oldest men I worked

with was hired in in 1927. And then we had some 1935 men and ’37 men

and 1941 men. And they just took you under their wing, and you were just

an old country boy with a pair of brogan shoes. They liked you. They tried

to look out for you.

In Payne, our Supreme Court focused on whether the lay witnesses had “personal

knowledge of the presence of asbestos in their workplaces.” 467 S.W.3d at 445. Here,

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none of the lay witnesses had any “personal knowledge of the presence of asbestos in

their workplaces,” either from their educational backgrounds or from practical

experience. Plaintiff’s witnesses relied entirely on what they told, either by lawyers,

“old-timers,” or other largely unidentified non-supervisory personnel. Plaintiff argues

that this goes to the weight of the evidence and not its admissibility. We, as did the Trial

Court, disagree. If one of Plaintiff’s witnesses had testified that he or she was familiar

with asbestos and knew from personal knowledge that it was located in an area where

Decedent worked on trains—friable or not—that would be one thing. The record

contains no such testimony. This testimony was properly excluded by the Trial Court for

the reasons given by the Trial Court as already discussed above. We have reviewed the

voluminous record in this case and have found no evidence from sources with personal

knowledge, either lay or expert witnesses, that asbestos was located in any of the areas

where Decedent worked. In contrast, Norfolk Southern conducted extensive historical

research on trains from Decedent’s era and submitted its own evidence that Decedent

never would have been exposed to asbestos where he worked. Plaintiff did not rebut this

evidence, nor indeed present any affirmative, admissible evidence of her own in

opposition.

Without some evidence of asbestos exposure in Norfolk Southern’s workplace,

Plaintiff cannot tie in the medical and historical evidence regarding the carcinogenic risk

from asbestos or Norfolk Southern’s purported knowledge of the danger. There must be

an initial threshold showing of Decedent’s exposure to asbestos where he worked. This

is an essential element of Plaintiff’s claim. It may not be inferred from Decedent’s lung

cancer alone that Decedent was exposed to asbestos or that Norfolk Southern was

negligent. Plaintiff already has conceded below that the mere presence of asbestos on

railway locomotives or railcars is not in itself actionable, and the evidence shows that

there is a certain background level of asbestos exposure that virtually everyone is

exposed to everywhere. The Trial Court did not err in granting Norfolk Southern’s

motion to exclude the lay testimony, and consequently, an essential pillar of Plaintiff’s

case was toppled.

Norfolk Southern made a properly supported motion for summary judgment. To

withstand summary judgment, Plaintiff had to submit admissible evidence showing that

Decedent had been exposed to asbestos while working for Norfolk Southern. Plaintiff

failed to do so. That being the case, Norfolk Southern was entitled to judgment as a

matter of law. We affirm the judgment of the Trial Court.

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Conclusion

The judgment of the Trial Court is affirmed, and this cause is remanded to the

Trial Court for collection of the costs below. The costs on appeal are assessed against the

Appellant, Gloria Andrews, Administratrix of the Estate of Raymond Andrews.

____________________________________

D. MICHAEL SWINEY, CHIEF JUDGE

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