N. Desher (Guardian ad litem of P. Devlin) v. SEPTA

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Nicole Desher (Guardian ad litem :

of Patrick Devlin), :

Appellant :

:

v. : No. 1529 C.D. 2018

: Argued: June 6, 2019

Southeastern Pennsylvania :

Transportation Authority (SEPTA) :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION BY JUDGE BROBSON FILED: June 27, 2019

Nicole Desher (Appellant), as guardian ad litem of Patrick Devlin

(Devlin), appeals two orders of the Court of Common Pleas of Philadelphia County

(trial court). Both orders arise from an action Appellant commenced in the trial court

against the Southeastern Pennsylvania Transportation Authority (SEPTA), claiming

damages under the statute known as the Federal Employers’ Liability Act (FELA).1

The first order, dated June 18, 2018, granted SEPTA’s motion in limine to preclude

the testimony of Appellant’s expert witness. The second order, dated June 19, 2018,

granted SEPTA’s renewed motion for summary judgment and dismissed Appellant’s

case. For the reasons that follow, we affirm trial court’ order granting summary

judgment in favor of SEPTA.

1

45 U.S.C. §§ 51-60.

I. BACKGROUND

At the time of the events giving rise to this case, SEPTA employed

Devlin as a welder and rail maintainer. On the morning of October 20, 2014, two

other SEPTA employees—Antonio Gonzalez (Gonzalez) and Lafayette Rhoads

(Rhoads)—were working at SEPTA’s Courtland Yard when they discovered Devlin

slumped over in the cab of his welding truck. He was cyanotic, was not breathing,

and had no pulse. Gonzalez called 911 from his cell phone, and the emergency

dispatcher instructed the men to lay Devlin on the ground and begin CPR and rescue

breathing. The two men removed Devlin from the truck, and Gonzalez immediately

began to administer CPR and continued to do so until paramedics reached Devlin

at 7:54 a.m.—eight minutes after Gonzalez’s 911 call. Within two minutes of their

arrival, the paramedics detected ventricular fibrillation in Devlin’s heart and

delivered a defibrillating shock using their own automated external defibrillator

(AED). Although at some point during these events someone retrieved and brought

to Devlin’s location an AED kept in a building within 100 yards of where Devlin

was discovered, no one used that AED to treat Devlin before the paramedics arrived.

Devlin survived, but his cardiac arrest interrupted the oxygen supply to his brain,

causing an anoxic brain injury. That injury impairs Devlin’s cognitive and physical

functions and renders him incapable of independent living.

The record in this matter also establishes that beginning in 2007 and

continuing to the present, SEPTA has had in force an AED policy as part of its

Accident and Illness Prevention Program (AIPP). The AIPP directs the placement

of 62 AEDs at various SEPTA facilities and provides for maintenance and inspection

of AEDs and ongoing training for five employees per AED. (Reproduced Record

(R.R.) at 248a.) SEPTA’s assistant general manager of safety testified in another

2

proceeding that SEPTA’s practice has been to provide AED training to at least one

employee per shift at each AED location. (Id. at 230a-31a, 235a-36a.) A former

SEPTA employee involved in the implementation of the AIPP avers that employees

on each shift were to be informed of the location of the AED at their facility and of

the identities of their co-workers who had been trained in its use. (Id. at 252a.)

Appellant filed an action with the trial court, seeking to recover

damages for Devlin’s injury under the FELA2 and alleging that SEPTA failed to

meet the proper standard of care by failing to implement the AIPP. Appellant argues

that SEPTA’s fundamental duty under the FELA to provide its employees with a

reasonably safe place to work includes a duty to implement safety rules to address

foreseeable harm and that the AIPP is such a safety rule. Appellant further alleges

that SEPTA breached that duty by failing to train its employees adequately pursuant

to the AIPP.

In anticipation of trial, Appellant secured the expert testimony of

Franklin A. Darius (Darius) concerning SEPTA’s failure of its alleged duty. Darius’

testimony was to include, inter alia, discussion of a first aid regulation promulgated

by the Occupational Safety and Health Administration (OSHA), which provides:

“In the absence of an infirmary, clinic, or hospital in near proximity to the workplace

which is used for the treatment of all injured employees, a person or persons shall

2

The FELA allows employees of certain common carriers to recover compensation for

workplace injuries. Unlike modern systems of workers’ compensation, the FELA requires the

employee to prove that the employer was negligent. See Hileman v. Pittsburgh & Lake Erie R.R.,

685 A.2d 994, 998 n. 1 (Pa. 1996). “If an employee is injured because of an unsafe condition, the

employer is liable if its negligence played any part, even the slightest, in producing the employee’s

injury.” Manson v. Se. Pa. Transp. Auth., 767 A.2d 1, 3 (Pa. Cmwlth. 2001) (quoting Peyton v.

St. Louis Sw. Ry., 962 F.2d 832, 833 (8th Cir. 1992) (internal quotation marks omitted)). The only

elements of negligence implicated by the issues Appellant has raised on appeal are duty and breach

of duty.

3

be adequately trained to render first aid. Adequate first aid supplies shall be readily

available.” 29 C.F.R. § 1910.151(b). Darius was to testify that this regulation

requires, at a minimum, consideration of AEDs, based on a nonbinding OSHA

best-practice publication which provides: “[AEDs] should be considered when

selecting first-aid supplies and equipment.”3 Darius was to testify that SEPTA failed

to implement the AIPP in a manner consistent with the intent of OSHA regulations

and also that SEPTA did not fulfil its duty under the FELA.

SEPTA filed a motion in limine to prevent Darius from testifying. The

trial court heard oral argument regarding that motion (and 37 other pending motions

in limine in this matter) and ultimately granted the motion on June 18, 2018. In a

subsequent Pa. R.A.P. 1925(a) opinion, the trial court explained that it precluded

Darius’ testimony on the grounds that his testimony would be highly prejudicial to

SEPTA and have minimal probative value because the OSHA regulations do not, by

their terms, require AEDs.

Appellant also secured evidence concerning SEPTA’s implementation

of the AIPP. Appellant deposed Rhoads and Gonzalez concerning their experiences

with the AIPP prior to Devlin’s injury. Rhoads, employed by SEPTA at the

Courtland Yard for about 12 years before these events,4 testified that SEPTA had

3

“Best Practices Guide: Fundamentals of a Workplace First-Aid Program,”

OSHA 3317-06N at 9 (2006), https://www.osha.gov/Publications/OSHA3317first-aid.pdf

(Guide).

4

SEPTA states that Rhoads and Gonzalez “were not assigned to [the Courtland] Yard,”

and suggests that they were present for Devlin’s cardiac arrest only because they were refueling

their work truck at the Courtland Yard. (Br. for Appellee at 39.) That suggestion is obviously

inconsistent with the men’s deposition testimony as summarized here, which establishes that each

had the Courtland Yard as his primary reporting location for many years before these events,

though they did drive their work truck to other locations in the course of their duties.

(See R.R. at 253a-54a, 323a, 325a, 354a.)

4

never informed him of the presence of an AED at the Courtland Yard and that he

became aware of it only “after all of it was over.” (R.R. at 324a.) Gonzalez, who

had worked at the Courtland Yard for six years before these events, testified that he

was aware of the presence of an AED at the Courtland Yard, but he added that

SEPTA had never informed him of the identities of his co-workers who had been

trained in its use and that he did not recall SEPTA definitively communicating the

AED’s location to him. (Id. at 253a-54a.)

Following the trial court’s rulings on various pretrial matters, SEPTA

made a renewed motion for summary judgment. The trial court granted summary

judgment because it concluded that SEPTA’s FELA duty did not include

“anticipating [Appellant’s] heart attack[,] nor did it mandate providing assistance to

him in the form of the use of an AED.” (Br. for Appellant, trial court op. at 11.)

Essentially, the trial court’s conclusion rests on two determinations, both set forth in

its Rule 1925(a) opinion: (1) the AIPP is not a “safety rule” which SEPTA has a

duty to enforce under the FELA (id. at 10.); and (2) Appellant “failed to show that

[SEPTA] had failed to enforce the language of [the AIPP].”5 (Id.)

II. ISSUES

On appeal to this Court, Appellant raises three issues: (1) whether the

trial court, in granting summary judgment, erred in concluding that SEPTA did not

owe a duty to implement the AIPP properly as part of its duty to provide a reasonably

5

The trial court and SEPTA insist that neither SEPTA nor its employees owe an absolute

duty to provide defibrillation to an employee suffering cardiac arrest. We need not address this

contention because, as Appellant makes clear, “the breach asserted by [Appellant] is of the duty to

provide under the FELA a reasonably safe place to work, by not properly implementing the AIPP.”

(Reply Br. for Appellant at 8 (emphasis added); see also Br. for Appellant at 12-13 (“The breach

of the duty to provide its employees with a reasonably safe place to work was in the failure to

enforce the [AIPP] by effectively implementing it.” (emphasis added)).) Appellant does not allege

the breach of some general duty independent of implementing the AIPP.

5

safe workplace under the FELA; (2) whether the trial court, in granting summary

judgment, erred in deciding on its own, rather than allowing a jury to decide, whether

Appellant showed that SEPTA breached its duty under the FELA by failing to

implement the AIPP properly; and (3) whether the trial court erred in granting

SEPTA’s motion in limine to preclude Darius’ testimony. SEPTA, in part, responds

that Appellant waived these issues on appeal. We first address the question of waiver

followed by the issues pertaining to the grant of summary judgment. We address

last the issue pertaining to SEPTA’s motion in limine, because our analysis of

SEPTA’s duty as set forth in our summary judgment discussion bears on our

disposition of whether the trial court erred in granting SEPTA’s motion in limine.

III. DISCUSSION

A. Waiver

SEPTA first argues that Appellant has waived all issues on appeal

because the language Appellant used to raise those issues in its brief differs from the

language it used in its Pa. R.A.P. 1925(b) statement. Specifically, SEPTA maintains

that the inclusion of the phrase “safety rule” in Appellant’s Brief—a phrase which

does not appear in Appellant’s Rule 1925(b) statement—raises a novel issue which

should not be considered on appeal. Additionally, SEPTA asserts that “[t]he listed

issues in [Appellant’s Rule] 1925(b) [s]tatement should, furthermore, be found

waived due to vagueness.” (Br. for Appellee at 18.) SEPTA does not further

develop these waiver arguments.

A party’s failure to include an issue in its Rule 1925(b) statement

waives that issue on appeal. Pa. R.A.P. 1925(b)(4)(vii). Importantly, however,

“[e]ach error identified in the [Rule 1925(b) s]tatement will be deemed to include

every subsidiary issue which was raised in the trial court.” Pa. R.A.P. 1925(b)(4)(v).

6

Here, the issues of duty and breach as related to a “safety rule” are subsidiary to the

issue of negligence, which Appellant raised, concisely but clearly, in the

Rule 1925(b) statement. Before the trial court, Appellant discussed the “safety rule”

concept, and SEPTA responded at length with its own arguments on that very issue.

(See R.R. at 339a-42a.) Furthermore, the language of Appellant’s

Rule 1925(b) statement is not vague; it is appropriately concise, given the mandate

that the statement “should not be redundant or provide lengthy explanations as to

any error.” Pa. R.A.P. 1925(b)(4)(iv). Appellant did not, therefore, waive any

argument by crafting a brief that focuses on issues subsidiary to the larger issue of

negligence that Appellant preserved.

B. Summary Judgment

Appellant argues on appeal6 that the trial court erred in granting

SEPTA’s renewed motion for summary judgment. Specifically, Appellant alleges

two distinct errors on the part of the trial court: (1) the trial court erred in concluding

that SEPTA did not owe a duty to implement the AIPP properly as part of its duty

to provide a reasonably safe workplace under the FELA; and (2) the trial court erred

in deciding on its own, rather than allowing a jury to decide, whether Appellant

showed that SEPTA breached its duty under the FELA by failing to implement the

AIPP properly.

Generally, “[s]ummary judgment is properly granted ‘whenever there

is no genuine issue of material fact as to a necessary element of the cause of action,’”

having viewed the record in the light most favorable to the non-moving party. Laich

6

“An order of a trial court granting summary judgment may be disturbed by an appellate

court only if the court committed an error of law . . . ; thus, our standard of review is de novo, and

our scope of review is plenary.” LJL Transp., Inc. v. Pilot Air Freight Corp., 962 A.2d 639, 647

(Pa. 2009).

7

v. Bracey, 776 A.2d 1022, 1024 (Pa. Cmwlth. 2001) (quoting

Pa. R.C.P. No. 1035.2(1)). In FELA cases, however, a movant must meet a higher

standard to obtain summary judgment, because “[j]udicial appraisal of the proofs to

determine whether a jury question is presented is narrowly limited to the single

inquiry whether, with reason, the conclusion may be drawn that negligence of the

employer played any part at all in the injury or death.” Rogers v. Mo. Pac. R.R. Co.,

352 U.S. 500, 506-07 (1957).7 The Pennsylvania Superior Court has repeatedly

interpreted the Rogers standard to mean that “only in the most frivolous cases may

the courts deny a[n] FELA plaintiff his qualified right to a jury trial.” Harding v.

Consol. Rail Corp., 620 A.2d 1185, 1188 (Pa. Super. 1993); Ciarolla v. Union R.R.

Co., 338 A.2d 669, 671 (Pa. Super. 1975) (en banc). “Thus, only in those extremely

rare instances when there is a zero probability either of employer negligence or that

any such negligence contributed to the injury of an employee[] may a court withdraw

a case from the jury’s consideration.” Harding, 620 A.2d at 1188.

Appellant first argues on appeal that SEPTA has a duty under the FELA

to implement the AIPP effectively because the AIPP is a “safety rule” that SEPTA

voluntarily adopted to address a foreseeable risk of injury. In response, SEPTA

argues that the AED-related provisions of the AIPP are not a “safety rule” because,

unlike safety rules in other cases (as, for example, procedures for lifting heavy

objects), they do not purport to address a harm sustained because of the performance

7

“FELA cases adjudicated in state courts are subject to state procedural rules, but the

substantive law governing them is federal.” St. Louis Sw. Ry. Co. v. Dickerson, 470 U.S. 409, 411

(1985); Labes v. N.J. Transit Rail Operations, Inc., 863 A.2d 1195, 1198 (Pa. Super. 2004)

(quoting Harding, 620 A.2d at 1188), appeal denied, 876 a.2d 396 (Pa. 2005). Though this Court,

in its application of federal substantive law, is not bound by the decisions of federal district courts,

federal circuit courts, or the courts of other states, we may cite such decisions when they have

persuasive value. See Griesser v. Nat’l R.R. Passenger Corp., 761 A.2d 606, 612 n.7

(Pa. Super. 2000), appeal denied, 775 A.2d 807 (Pa.), cert. denied, 534 U.S. 970 (2001).

8

of an employee’s work duties. Therefore, SEPTA argues, the FELA duty to provide

a reasonably safe workplace does not require SEPTA to provide AEDs to its

employees.

Whether a duty exists is “a legal determination, assigned in the first

instance to the trial court and subject to plenary appellate review.” Sharpe v. St.

Luke’s Hosp., 821 A.2d 1215, 1219 (Pa. 2003). “Under the FELA, an employer has

the duty to provide its employees with a reasonably safe work environment and safe

work equipment.” Manson, 767 A.2d at 3; see Bailey v. Cent. Vt. Ry.,

319 U.S. 350, 353 (1943). The FELA duty to provide employees with a reasonably

safe workplace is well established and beyond dispute, but, critically for the instant

case, the contours of that duty “turn[] in a general sense on the reasonable

foreseeability of harm.” Ackley v. Chi. & N. W. Transp. Co., 820 F.2d 263, 267

(8th Cir.1987) (citing Gallick v. Balt. & O. R.R., 372 U.S. 108, 117 (1963)

(“[R]easonable foreseeability of harm is an essential ingredient of [FELA]

negligence.”)).

In Gallick, the United States Supreme Court upheld a jury’s finding of

employer negligence under the FELA. The railroad employer had allowed a pool of

fetid water to accumulate on its property and attract dangerous insects, one of which

bit an employee, ultimately necessitating the amputation of the employee’s legs. The

railroad denied negligence on the ground that “no duty arose to exercise due care to

protect [the employee]” from the risk of insect bites. Gallick, 372 U.S. at 110

(internal quotation marks omitted). The Court disagreed and concluded that such an

injury was reasonably foreseeable, such that the railroad’s standard of care under the

FELA included the obligation to mitigate the heightened risk of insect bites in the

area around the pool. Specifically, the Court held:

9

“[The] requirement [of reasonable foreseeability] has been

satisfied in the present case by the jury’s findings of

negligence in maintaining the filthy pool of water. The

jury had been instructed that negligence is the failure to

observe that degree of care which people of ordinary

prudence and sagacity would use under the same or similar

circumstances; and that defendant’s duty was measured by

what a reasonably prudent person would anticipate as

resulting from a particular condition . . . . Thus when the

jury found these facts: [the employee] was bitten by an

insect; the insect bite caused illness or disease and led to

[the employee’s] present physical condition; the stagnant

pool attracted bugs and vermin and was responsible for the

insect bite and the injuries to [the employee]; and [the

railroad] knew that the accumulation of the pool of water

would attract bugs and vermin to the area—it is clear that

the jury concluded that [the railroad] should have realized

the increased likelihood of an insect’s biting petitioner

while he was working in the vicinity of the pool.

Gallick, 372 U.S. at 117-19 (emphasis added).

Gallick demonstrates that an employer’s FELA duty is to use due care

in mitigating risks to an employee that are increased by the employee’s presence at

the workplace. Although the FELA is a remedial statute that protects employees, it

“does not make the employer the insurer of the safety of his employees while they

are on duty.” Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 543 (1994) (quoting

Ellis v. Union Pac. R.R. Co., 329 U.S. 649, 653 (1947)). The FELA standard of

care, therefore, does not extend to mitigating risks that arise from life in general,

rather than from an employee’s duties or presence at the workplace in particular.

See Bailey, 319 U.S. at 353.

This distinction—between general, baseline risks, on one hand, and

risks that are heightened in the workplace, on the other—helps explain the results in

many FELA cases. See, e.g., Gallose v. Long Island R.R. Co., 878 F.2d 80, 86

(2d Cir. 1989) (holding that jury must decide whether coworker routinely brought

10

dog to work in course of employment, and whether railroad’s duty included duty to

warn of heightened risk of dog bite); Ybarra v. Burlington N., Inc., 689 F.2d 147,

151 (8th Cir. 1982) (holding that jury could conclude that nonenforcement of

railroad’s heavy lifting safety procedures was breach of FELA duty which caused

employee’s repetitive lifting injury); Lehman v. Nat’l R.R. Passenger Corp.,

661 A.2d 17 (Pa. Super. 1995) (affirming summary judgment in favor of railroad

when piece of regulation-sized, properly stored luggage fell on train conductor’s

foot), appeal denied, 672 a.2d 308 (Pa. 1996). In the terms of those cases, the FELA

may or may not impose a standard of care with respect to dog bites, repetitive stress

injuries, or falling objects, all depending on whether a heightened risk to the

employee is reasonably foreseeable.

Applying the foregoing analysis in the instant case, we first note that

SEPTA does not dispute that Devlin was acting in his role as an employee at the

time he suffered cardiac arrest and that, therefore, the FELA applies.8 There is,

therefore, no dispute that SEPTA owed Devlin a duty to provide a reasonably safe

workplace, but the parties disagree as to the standard of care that SEPTA must

exercise with respect to AEDs. It is apparent, however, that before the trial court,

the parties did not attempt to define that standard of care in the terms we have set

8

As part of its argument, SEPTA asserts that “Devlin was not performing his

SEPTA-related duties when his cardiac event occurred,” and that there is “no connection between

his job duties and his alleged injuries.” (Br. for Appellee at 47.) SEPTA also asserts that “Devlin

was not assigned to work at the [Courtland Y]ard. No one knows for sure why he was there.”

(Id. at 6.) Taken together, one could read these assertions as suggesting that Devlin was not acting

in the role of an employee when he suffered cardiac arrest. For clarification, therefore, we note

that the record supports—but may not conclusively establish—the fact that Devlin’s employment

required him to refuel his truck at the Courtland Yard on the morning in question.

(See R.R. at 226a.) Indeed, SEPTA admits in its brief that Devlin “was presumably working” at

the time of his injury. (Br. for Appellee at 36.)

11

forth above—i.e., by addressing whether the risk (of cardiac arrest) that caused

Devlin’s injury is one that is foreseeably heightened by Devlin’s employment. There

is nothing in the record (including Appellant’s proffered expert testimony) that

addresses any such heightened risk of harm. The trial court concluded, however,

that the AIPP is not a “safety rule”9 and that SEPTA’s FELA duty did not include

“anticipating [Appellant’s] heart attack[,] nor did it mandate providing assistance to

him in the form of the use of an AED.” (Br. for Appellant, trial court op. at 11.)

Although it may be true that there is no generally applicable FELA duty to

implement specific AED policies—or to provide any AEDs or training at all—we

can imagine circumstances under which the foreseeable risk of cardiac events

involved in certain employment could impose a heightened standard of care with

respect to AEDs in the workplace.10 Accordingly, the trial court erred in attempting

to define the appropriate FELA standard of care with respect to AEDs without a

record addressing the reasonable foreseeability of the risk of cardiac arrest

9

Much of Appellant’s argument below and on appeal has focused on characterizing the

AIPP as a “safety rule”—a status which, under some FELA case law, would require

implementation of the AIPP in order to fulfil the duty to provide a reasonably safe workplace. See

Ackley, 820 F.2d at 268; Ybarra, 689 F.2d at 150; Harding, 620 A.2d at 1189. We will not,

however, be drawn into so narrow an analysis of the proper standard of care under the FELA. This

is particularly so because neither Pennsylvania courts nor the United States Supreme Court has

addressed the question of what constitutes a “safety rule” within the meaning of FELA case law.

Without such guidance, even Appellant’s preferred “safety rule” theory would require us

ultimately to return to the guidance we give here—i.e., that the FELA standard of care turns on

reasonable foreseeability of risk under certain conditions of employment.

10

For example, if an employer subject to the FELA employed workers under circumstances

that exposed them to a heightened risk of electric shock and, therefore, a heightened risk of cardiac

arrest, during their employment, a jury could conceivably find that the employer bears a heightened

standard of care with respect to making AEDs and training available to those employees. Such a

finding would depend—as it did in Gallick—on the degree to which the risk is heightened and

reasonably foreseeable under the circumstances.

12

associated with Devlin’s employment. In the instant case, however, because the

record is devoid of any evidence suggesting a heightened risk of cardiac events for

SEPTA employees, no genuine issue of material fact exists concerning SEPTA’s

standard of care with respect to AEDs. Thus, we will affirm the order of the trial

court granting summary judgment for SEPTA, albeit based upon slightly different

reasoning than that advanced by the trial court.11

C. Motion In Limine

Appellant also argues on appeal12 that the trial court erred in granting

SEPTA’s motion in limine to preclude Darius’ expert testimony. First, Appellant

claims that the evidentiary rule on which the trial court based its decision—

Pa. R.E. 403 (Rule 403)13—is generally not susceptible of accurate pretrial

evaluation. Second, Appellant asserts that Darius’ testimony about the OSHA

regulations and publications is highly relevant as a model for the effective

implementation of the AIPP and to show that SEPTA did not implement the AIPP

11

During oral argument, counsel for Appellant represented that Appellant is not asking this

Court to consider any theory of the case other than the “safety rule” analysis we have described

and rejected above. We see no need to remand this matter to the trial court for application of the

guidance we give here under a theory of the case which Appellant will not adopt.

Further, because our conclusion here is dispositive, we do not address Appellant’s

argument on appeal that, in granting summary judgment, the trial court improperly overlooked

genuine issues of material fact as to SEPTA’s breach of a duty under the FELA.

12

While we generally review a trial court’s ruling on admissibility of evidence for an abuse

of discretion, Commonwealth v. Edwards, 903 A.2d 1139, 1156 (Pa. 2006), whether Rule 403

should be applied before trial is a question of law which we review de novo. Cmwlth. v. Hicks,

91 A.3d 47, 52 (Pa. 2014).

13

Rule 403 provides:

The court may exclude relevant evidence if its probative value is

outweighed by a danger of one or more of the following: unfair prejudice,

confusing the issues, misleading the jury, undue delay, wasting time, or needlessly

presenting cumulative evidence.

13

effectively. Appellant emphasizes that Darius’ testimony is offered not to prove a

violation of OSHA regulations but instead to show that SEPTA could have

implemented an AED policy more effectively, as demonstrated by OSHA’s

guidelines regarding AEDs. In response, SEPTA argues that Darius’ testimony is

more prejudicial than probative, because the OSHA regulations themselves do not

mention AEDs and the Guide’s AED provisions are nonbinding.

Considering Darius’ testimony in light of our analysis of the summary

judgment issue, we note that his testimony, which Appellant sought to introduce to

support Appellant’s theory of SEPTA’s breach of a duty, does not address whether

any SEPTA employees are exposed to an increased risk of cardiac events that would

suggest a heightened standard of care with respect to AEDs under the FELA. The

trial court, therefore, did not err in granting SEPTA’s motion in limine, as Darius’

testimony did nothing to establish that SEPTA breached any duty owed to Appellant

under the analysis discussed above.

IV. CONCLUSION

For the foregoing reasons, we will affirm the order of the trial court

granting summary judgment in favor of SEPTA.

P. KEVIN BROBSON, Judge

14

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Nicole Desher (Guardian ad litem :

of Patrick Devlin), :

Appellant :

:

v. : No. 1529 C.D. 2018

:

Southeastern Pennsylvania :

Transportation Authority (SEPTA) :

ORDER

AND NOW, this 27th day of June, 2019, the order of the Court of

Common Pleas of Philadelphia County (trial court), dated June 19, 2018, granting

summary judgment in favor of SEPTA, is AFFIRMED.

P. KEVIN BROBSON, Judge