Blume v. Port Authority Trans-Hudson Corporation

Background

The opinion ruled on the parties’ motions in limine, which are requests made before trial to limit or permit evidence. Plaintiffs alleged that their exposure to Tank Brite Plus, referred to as TBP, caused injuries after the Port Authority Trans-Hudson Corporation, referred to as PATH, allegedly failed to provide respirators or adequate ventilation. The opinion states that the claims arise under the Federal Employers’ Liability Act.

Medical-payment setoff

PATH sought permission to reduce any damages award by amounts it paid for plaintiffs’ medical treatment. Plaintiffs asked the court to bar that reduction. The court granted PATH’s motion and denied plaintiffs’ motion.

The court relied on the Federal Employers’ Liability Act, which allows a common carrier to subtract payments made for insurance, relief benefits, or indemnity paid because of the injury involved in the lawsuit. The court found that PATH’s payments were made specifically in response to the on-the-job injuries at issue. Plaintiffs could not obtain the payments until signing Occupational Injury Reports that reserved PATH’s right to a lien for the medical expenses against a later judgment or settlement. The court therefore concluded that the payments qualified for a setoff.

The court said it would determine the exact amount of the setoff only if the jury returned a verdict for plaintiffs. The jury would assess damages without being told about the setoff, and the court would apply the setoff afterward.

Tank Brite Plus safety data sheet

PATH moved to bar the TBP safety data sheet, arguing that it was not reliable scientific evidence and was unfairly prejudicial. The court denied PATH’s motion.

The court explained that federal workplace-safety regulations require manufacturers of hazardous chemicals to prepare safety data sheets identifying hazards and necessary protective measures. The TBP sheet identified skin irritation, eye damage, and aspiration hazards, and advised users to wear protective equipment and use TBP with adequate ventilation. The court said the sheet was admissible at least to show that PATH had notice of possible harm and of the need for precautions and protective equipment. The court also found that the document could qualify under hearsay exceptions for statements against the maker’s interest and trustworthy statements, and that any prejudice did not substantially outweigh its value on notice and causation. If authenticity became disputed, the court said a representative of TBP’s manufacturer, JMN Specialties, Inc., could testify about it.

Dr. Fox’s supplemental affidavit

PATH moved to bar a supplemental affidavit by Dr. Fox. He had issued an initial toxicologist’s expert report on July 31, 2019, and later submitted an October 25, 2019 supplemental affidavit stating that he used the Bradford Hill Criteria in reaching his conclusion that TBP caused plaintiffs’ injuries. The opinion says that the initial report did not mention that methodology.

The court granted the motion as made because the affidavit was an out-of-court statement by a nonparty and therefore hearsay. The court also stated that neither the initial expert report nor the supplemental affidavit was itself admissible. Dr. Fox could testify in court about his opinions, and the parties could use his prior statements during cross-examination to challenge or otherwise undermine his testimony.

The court noted that the motion PATH should have made was a motion to prevent Dr. Fox from testifying about the Bradford Hill criteria and about how he reached his causation conclusion, because that subject appeared in the supplemental affidavit but not in the initial report. The court said it would hear the parties’ positions on that separate issue at the final pretrial conference. The opinion does not resolve that separate testimony question.

Disposition

The court granted PATH’s motion to obtain a setoff, denied plaintiffs’ motion to preclude a setoff, denied PATH’s motion to bar the TBP safety data sheet, and granted PATH’s motion to bar Dr. Fox’s supplemental affidavit. The clerk was directed to remove the four motions identified by docket numbers 48, 50, 53, and 56 from the list of open motions.