LymeNet Law Pages
Case History Document

Entered By: Ira M Maurer/LymeNetDate Created: October 1, 1999
Document Type: Case Summary
Miller v. Consolidated Rail Corp., U.S. District Court, Eastern District of Pennsylvania, Case No. 98-978. Frank Spada, Jr., Blue Bell, PA for plaintiff. Joseph J. Costello, Ian M. Ballard, Jr., for defendants.

According to the plaintiff, he was bitten by ticks on two occasions while performing his job duties. Those bites led to Lyme disease and also precipitated this litigation in which plaintiff claimed that he was not provided with a safe place to work. At trial plaintiff adduced testimony from several physicians, psychologists and a neuro-psychologist who supported their diagnoses of Lyme disease by relying on plaintiff's symptomatology, including his irritability and mood swings. Thereafter the court allowed Conrail to present evidence of an assault on plaintiff's stepfather, evidence that he had been arrested for stalking his ex-girlfriend and that he had had prior confrontations with co-workers and supervisors. The court allowed that evidence on the ground that plaintiff had placed his emotional state in isssue. The court also allowed the defense to present testimony from two witnesses who were not identified until after the close of discovery. One of those witnesses testified that he had sprayed certain areas of the railyard where plaintiff worked. The other witness testified about the railroad's Lyme disease education and prevention programs.

The district court denied plaintiff's request to charge the jury as to 49 C.F.R. 231.37 (relative to the railroad's duty to control vegetation on railroad property which is on or immediately adjacent to roadbed) as inapplicable. The jury subsequently returned a defense verdict. In his motion for a new trial, plaintiff challenged those actions by the court. The district court denied any relief. As to the evidence of attacks and confrontations the court stated that the "existence of such traits prior to such exposure was critical to the jury's assessment of the reliability of the experts' opinions that plaintiff suffered from Lyme disease". As to the witnesses identified after the close of discovery, the court pointed out that from the time of disclosure plaintiff still had one month in which to seek to depose them. As to the applicability of the vegetation regulation, the court pointed out that the regulation was designed to insure that employees can perform necessary maintenance work and did not address the concern of a safe working environment [citing Southern Pacific Transportation Co. v. Public Utilities Comm. of California, 647 F.2d 1220, 1225 (N.D. Cal. 1986)].

This case summary was reprinted from the FELA Reporter, Vol. 12, No. 6, June 1999 with the kind permission of Lewis L. Laska

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