NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 
 

WILLIAM R. ANDERSON       

  IN THE SUPERIOR COURT OF 
           PENNSYLVANIA 

ONSOLIDATED RAIL CORPORATION 

 No. 1573 EDA 2021 

Appeal from the Order Entered July 27, 2021 
In the Court of Common Pleas of Philadelphia County 
Civil Division at No. 170801984 

             

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Appellant 

 

 

v. 

EFORE:  LAZARUS, J., KUNSELMAN, J., and MURRAY, J. 

MEMORANDUM BY MURRAY, J.: 

FILED MARCH 23, 2023 

 

William  R.  Anderson  (Appellant)  appeals  from  the  order  entering 

summary judgment in favor of Consolidated Rail Corporation (Conrail).  After 

careful  review,  we  are  constrained  to  reverse  and  remand  for  further 

proceedings. 

 

The trial court summarized the case history as follows: 

J-A05032-23  

Appellant commenced this personal injury action under the 
Federal Employers Liability Act (“FELA”), [45 U.S.C. § 51, et seq.,] 
by  complaint,  on  August  22,  2017.    A  Case  Management  Order 
(“CMO”) listing, inter alia, expert report deadlines was issued on 
December  5,  2017.    The  first  CMO  provided  that  [Appellant’s] 
expert  report  was  due  no  later  than  November  5,  2018.    The 
deadline was extended on four occasions, the last being April 1, 
2021,  wherein  [the  trial  court]  provided  that  “[Appellant]  shall 
submit  expert  reports  no  later  than  03-May-2021.”    See  CMO 
(04/01/2021).  Despite the directive, and with no permission or 
excuse, [Appellant] submitted the expert report of [] Mark Levin[, 
M.D. (Dr. Levin)] (the “Levin Report”), on May 5, 2021.  
 

* * * 

   

     

    C

 

 

  B

  

[]  In  his  complaint,  Appellant  alleged  that  occupational 
exposures  to  diesel  exhaust,  creosote,  and  asbestos,  while 
[Appellant  was]  working  for  …  Conrail[]  as  a  timekeeper  and 
trackman[,]  caused  him  to  develop  stage  0  chronic  lymphocytic 
leukemia (“CLL”).  Appellant offered the Levin [R]eport … on the 
issue of causation. 

 

Trial Court Opinion, 10/1/21, at 1, 2. 

 

The Levin Report detailed Appellant’s occupational and medical history: 

[Appellant]  worked  for  Conrail  from  1976  to  1990.    Initially, 
[Appellant] did clerical work for 2 years and moved to [being] a 
trackman for 5 years and was a track foreman from 1983 to 1990.  
After  [Appellant]  left  Conrail,  he  went  to  Red’s  Towing  for  22 
years.  [Appellant] weas [sic] exposed to diesel exhaust, creosote, 
and  asbestos  on  a  daily  basis  throughout  his  employment  with 
Conrail.  On July 17, 2012, at age 64, [Appellant] was diagnosed 
with  …  CLL[].    [Appellant’s]  father  smoked  but  did  not  do  so  at 
home.    [Appellant]  never  smoked.    [Appellant’s]  father  died  of 
lung cancer and his mother died of stomach cancer. 

evin Report, 5/3/21, at 2 (unnumbered).1   

In  preparing  his  Report,  Dr.  Levin  stated  he  had  reviewed  “the 

Complaint, [Appellant’s] deposition, Appellant’s discovery responses, medical 

and  billing  records,”  id.,  as  well  as  a  report  (Perez  Report)  prepared  by 

Hernando R. Perez, Ph.D. (Dr. Perez), who Appellant also had retained as an 

expert.2  According to Dr. Levin, the Perez Report established that Appellant’s 

____________________________________________ 

1  The  Levin  Report  is  attached  to  Conrail’s  motion  for  summary  judgment.  
See Motion for Summary Judgment, 6/7/21, Ex. A.  

  Dr.  Perez  is  an  expert  in  the  field  of  industrial  hygiene  and  occupational 
health.    See  Perez  Report,  4/25/19,  at  1  (attached  to  Conrail’s  motion  for 
summary  judgment  as  Ex.  K).    Dr.  Perez  interviewed  Appellant,  listed 
(Footnote Continued Next Page) 

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  2

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“exposure[s to] diesel exhaust including benzene, creosote, and asbestos, are 

higher than ambient or background levels of exposure.”  Id.3  Dr. Levin quoted 

the following passage from the Perez Report: 

Among  the  established  carcinogens  present  in  diesel  exhaust  is 
benzene.    Benzene  resulting  from  diesel  exhaust  emissions  has 
been  observed  to  be  present  at  established  health  hazard 
concentrations  in  personal  air  samples  of  bus  maintenance 
workers.  Given the similarities in work environments between bus 
and locomotive maintenance facilities, similar exposure conditions 
can be anticipated.  Benzene exposure is an established cause of 
leukemia.  This association is relevant to the case of [Appellant] 
given  his  chronic  occupational  exposure  to  diesel  exhaust  and 
leukemia diagnosis. 
 

Levin Report, 5/3/21, at 3 (quoting Perez Report, 4/25/19, at 8) (footnotes 

omitted by Dr. Levin).   

Dr. Levin opined: 

I conclude [Appellant’s] exposure to benzene was more likely than 
not a contributory cause of his CLL.  It is my professional medical 
opinion based upon more likely than not [sic] … that [Appellant’s] 
CLL was caused by benzene exposure.  It is widely accepted that 
leukemia is caused by benzene. 

____________________________________________ 

publications  he  reviewed  in  preparing  his  report,  and  stated  that  he 
“additionally  reviewed  relevant  peer  reviewed  scientific  literature  to  inform 
[his] opinions.”  Id. at 1-2; see also id. at 19-20 (list of references). 

 The Perez Report stated, inter alia: “[Appellant] experienced diesel exhaust 
exposures across the continuum from low to intermediate during his career as 
a  track  laborer,  foreman  and  track  supervisor.    [Appellant’s]  work  settings 
were  representative  of  environments  associated  with  elevated  risk  of 
occupationally related cancer.”  Perez Report, 4/25/19, at 8.  Dr. Perez further 
detailed Appellant’s exposures to different toxic substances while working for 
Conrail, including creosote, asbestos, and benzene.  See id. at 8-15; but see 
also id. at 16 (observing Appellant  “did not  have air sampling or biological 
monitoring performed to assess his exposures at any point during his career 
with [Conrail].”).  

  3

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evin Report, 5/3/21, at 5 (unnumbered; break omitted). 

On  June  7,  2021,  Conrail  filed  a  motion  for  summary  judgment, 

Dr. Levin’s report wholly fails to identify or discuss any, let alone 
a  generally  accepted,  methodology  supporting  his  threadbare 
opinions  on  general  and  specific  causation.    As  a  result,  the 
undisputed record is devoid of any grounds on which a jury could 
find  a  causal  connection  between 
[Appellant’s]  alleged 
occupational  exposures  and  his  CLL.    Accordingly,  summary 
judgment  must  be  entered  in  favor  of  Conrail  and  against 
[Appellant]. 
 

* * * 

n a case that must be proven based upon established scientific 
and  medical  research,  the  Levin  Report  fails  to  establish  either 
general or specific causation.  Instead, Dr. Levin summarily opines 
that “[Appellant’s] exposure to benzene was more likely than not 
a contributory cause of his CLL,” and that “[i]t is my professional 
medical opinion based upon more likely than not and based on all 
of  the  above,  that  [Appellant’s]  CLL  was  caused  by  benzene 
exposure.”  [] Levin Report[, 5/3/21,] at 3 (emphasis added). 
 

  I

Motion  for  Summary  Judgment,  6/7/21,  at  1-2,  4  (paragraph  numbers  and 

breaks omitted).  According to Conrail, the deficient Levin Report “identifies 

no methodology, nor does it reflect the employment of any methodology, by 

which  [Dr. Levin]  makes the leap from association  to causation.”  Id. at 6.  

Conrail  further  claimed,  “there  is  nothing  in  Dr.  Levin’s  report  quantifying 

[Appellant’s]  specific  exposures.”    Id.  at  7.    Finally,  in  the  alternative  to 

J-A05032-23 

claiming: 

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summary judgment, Conrail requested the trial court schedule a Frye4 hearing 

to determine the admissibility of the Levin Report.  Id. at 25. 

 

Appellant filed a response opposing Conrail’s summary judgment motion 

on  July  6,  2021,  asserting  “Dr.  Levin’s  report  establishes  both  general  and 

specific causation.”  Response, 7/6/21, ¶ 19.  Appellant claimed, “a relaxed 

standard of causation is applied under the FELA.”  Id. ¶ 20 (citing Rogers v. 

Missouri Pac. R.R. Co., 352 U.S. 500 (1957)).  Appellant asserted that Dr. 

Levin’s report was “the product of a differential diagnosis, which is a generally 

accepted methodology.”  Id. ¶ 65 (citing Stange v. Janssen Pharm., Inc., 

179  A.3d  45,  55  (Pa.  Super.  2018)  (“differential  diagnosis  is  a  generally 

accepted methodology”)).  Appellant explained: 

Dr.  Levin  reviewed  the  Complaint,  [Appellant’s]  deposition, 
[Appellant’s] discovery responses, medical and billing records and 
Dr.  Perez’s  industrial  hygiene  report.    [Dr.  Levin]  conducted  a 
literature  search  and  reviewed  findings  from  several  well[-
]regarded  organizations  such  as  [the  International  Agency  on 
Research  of  Cancer,  Environmental  Protection  Agency,  and  the 
National Toxicology Program].  He thereafter used his professional 
judgment  based  upon  his  education,  training  and  experience  in 
formulating his opinions.  As part of his differential diagnosis, Dr. 
Levin  considered  [Appellant’s]  genetic  predisposition  to  cancer, 
and ruled out tobacco smoke. 
 

____________________________________________ 

4 See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) (holding courts 
should not admit scientific evidence at trial unless the underlying methodology 
has gained general acceptance in the scientific community); see also Pa.R.E. 
702(c) (incorporating Frye). 

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J-A05032-23 

matter.”  Id. ¶ 30. 

Id. ¶ 29.  Finally, Appellant argued “Dr. Levin’s use of the words ‘more likely 

than  not’  does  not  serve  to  form  a  basis  to  preclude  his  opinions  in  this 

On July 27, 2021, the trial court granted Conrail’s motion for summary 

judgment,  concluding  that  Appellant’s  “expert  report  fails  to  establish 

causation.”  Order, 7/27/21.  Appellant timely appealed.  Appellant and the 

trial court have complied with Pa.R.A.P. 1925. 

The trial court  explained  its rationale for entering  summary judgment 

as follows: 

Excusing  formatting  and  grammatical  issue[s],  the  Levin 
Report  was  not  only  late  but  deficient.    It  failed  to  identify 
generally  accepted  methodologies  used  to  support  the  opinions 
offered.  In addition, there is no mention of the manner or levels 
of  [Appellant’s]  exposure  to  []  “diesel[]  exhaust,  creosote,  and 
asbestos.”    Lastly,  the  Levin  Report  merely  concludes  that  the 
Appellant’s  “exposure  to  benzene  was  more  likely  than  not  a 
contributory  cause  of  his  CLL,”  [Levin  Report,  5/3/21,  at  5 
(unnumbered),]  but fails to identify  the source of the exposure.  
At  best,  the  Levin  Report  makes  the  case  for  a  correlation,  not 
causation.  Even under FELA’s relaxed standard of causation, more 
is required. 
 

Trial Court Opinion, 10/1/21, at 3-4; see also id. at 2 (“There is no portion 

of the Levin Report that identifies the level of exposure during [Appellant’s] 

work at Conrail or the length of exposure.”). 

 

Appellant presents two issues for our review: 

1.  Whether  the  Trial  Court  abused  its  discretion  in  granting 
[Conrail’s] Motion for Summary Judgment as a matter of law 
excluding Mark Levin, M.D.[?] 
 

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J-A05032-23 

2.  Whether  it  was  error  of  law  for  the  Trial  Court  to  conclude 
“[Appellant’s] expert report fails to establish causation” in light 
of  the  Pennsylvania  Supreme  Court’s  decision  in  Walsh  v. 
BASF Corp., 234 A.3d 446 (Pa. 2020)[?] 
 

Appellant’s Brief at 4.  

 

Preliminarily, we reiterate that this action arises under FELA.  Section 1 

provides: 

Every common carrier by railroad … shall be liable in damages to 
any person suffering injury while he is employed by such carrier 
… for such injury or death resulting in whole or in part from the 
negligence  of  any  of  the  officers,  agents,  or  employees  of  such 
carrier…. 
 

45 U.S.C.A. § 51.  “FELA cases adjudicated in state courts are subject to state 

procedural rules, but the substantive law governing them is federal.”  Labes 

v.  N.J.  Transit  Rail  Operations,  Inc.,  863  A.2d  1195,  1198  (Pa.  Super. 

2004) (citation and footnote omitted). 

“In FELA cases, ‘the plaintiff must prove the common law elements of 

negligence:  duty,  breach,  foreseeability,  and  causation.’”    Welsh  v. 

AMTRAK,  154  A.3d  386,  395  (Pa.  Super.  2017)  (emphasis  added;  citation 

and  quotes  omitted).    Under  FELA,  a  jury  may  find  liability  as  long  as  the 

evidence  justifies  the  conclusion  that  railroad  negligence  “played  any  part, 

even  the  slightest,  in  producing  the  injury….”    Rogers,  352  U.S.  at  506 

(emphasis  added;  footnote  citation  omitted);  see  also  Criswell  v.  Atl. 

Richfield Co., 115 A.3d 906, 912 (Pa. Super. 2015) (noting FELA employs a 

relaxed standard of causation  that  is less demanding  than the common law 

test). 

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Appellant first challenges the trial court’s finding that the Levin Report 

failed to establish causation.  See Appellant’s Brief at 14-25.  Appellant claims, 

contrary  to  the  trial  court’s  determination,  “Dr.  Levin’s  opinion  on  specific 

causation [] was formed using a differential diagnosis etiology….”  Id. at 23; 

but see also id. at 14 (asserting “Dr. Levin’s expert Report identified opinions 

for both general and specific causation.”).  Appellant argues: 

Dr. Levin, as part of his differential diagnosis, properly identified 
and  considered  the  risk  factors  and/or  alternative  causative 
factors  which  could  lead  to  [Appellant’s]  CLL,  which  includes 
smoking,  and  a  family  history  of  cancer,  along  with  workplace 
exposures.  Dr. Levin discussed in his report that he considered 
[Appellant’s]  genetic  predisposition  to  cancer  and  ruled  out 
tobacco smoke. 
 

Id. at 24.  According to Appellant, 

the  [trial]  court  improperly  determined  that  Dr.  Levin  could  not 
reach an opinion on specific causation, because, as stated in [the 
court’s] 1925(a) opinion, “there is no portion of the Levin Report 
that identifies the level of exposure during [Appellant’s] work at 
Conrail or the length of exposure” and “there is no mention of the 
manner or levels of [Appellant’s] exposure to  [] ‘diesel exhaust, 
creosote, and asbestos.’”  [Trial Court Opinion, 10/1/21, at 3, 4.]  
However, the [c]ourt recites this proposition in error because (1) 
Dr. Levin’s opinions rely upon the industrial hygiene report 
of  Dr.  Perez,  which  discusses  [Appellant’s]  exposures  in 
detail  and  provides  ranges  of  exposure  levels  to  diesel 
exhaust  using  a  generally  accepted  methodology;  (2)  Dr. 
Levin’s report states that [Appellant’s] exposure to diesel exhaust, 
including  benzene,  creosote  and  asbestos  are  “higher  than 
ambient or background levels of exposure,” and (3) dose analysis 
is not required for an expert to opine as to medical causation. 

Appellant  further  claims,  to  the  extent  that  Dr.  Levin  “does  not 

specifically call out any methodology by name in his report,” this is immaterial 

ppellant’s Brief at 24 (emphasis added; some capitalization modified). 

  A

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where  “the  methodology  of  drawing  inferences  from  a  review  of  published 

scientific literature has been long recognized by courts as a generally accepted 

methodology.”    Appellant’s  Reply  Brief  at  1-2  (citing  Commonwealth  v. 

Hopkins, 231 A.3d 855, 872 (Pa. Super. 2020) (“Courts accept a variety of 

sources  as  evidence  that  the  expert’s  methodology  is  generally  accepted, 

including  judicial  opinions,  scientific  publications,  studies,  and  statistics, 

expert testimony, or a combination of the above.”) (citations omitted)). 

Finally, Appellant asserts, “[h]ad the trial court felt there were questions 

regarding Dr. Levin’s methodology, the proper procedure would have been to 

hold a Frye [h]earing as requested by [Conrail].”  Appellant’s Brief at 25; see 

also  id.  (“Instead,  the  trial  court  improperly  determined  that  Dr.  Levin’s 

opinions were the result of no identifiable generally accepted methodology and 

thereafter conducted its own analysis and formulated its own opinions.  This 

is a clear abuse of discretion….”). 

 

Conrail  counters  the  trial  court  properly  exercised  its  discretion  in 

determining the Levin Report failed to establish causation: 

[Dr. Levin] did not take the basic steps required under the Frye 
standard  to  show  that  he  employed  a  generally  accepted 
methodology.    Instead,  [Dr.]  Levin  relied  on  studies  that  show 
only an association between [Appellant’s] alleged exposures and 
his CLL, while providing no information about the methodology he 
used for choosing those studies.   
 

Appellee’s Brief at 20.  According to Conrail, 

Nothing in [Dr.] Levin’s report suggested that he employed any 
methodology to opine on general causation, much less a generally 
accepted  one.    The  trial  court  acted  within  its  discretion  to 

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determine  [Dr.]  Levin’s  report  was  inadmissible  under  those 
circumstances.  See Snizavich v. Rohm and Haas Co., 83 A.3d 
191,  194  (Pa.  Super.  2013)  (affirming  the  grant  of  summary 
judgment  because  the  expert  had  failed  to  establish  causation 
through  the  application  of  a  “coherent  scientific  or  technical 
methodology”). 

d. at 18-19 (emphasis in original).    

  I

Conrail further argues: 

[Dr.] Levin’s report lacked any analysis of the amount (or dose) 
of  [Appellant’s]  exposure  to  benzene  and  asbestos,  or  to  the 
products  that  contained  those  substances.    In  cases  involving 
dose-responsive  diseases,  including  in  FELA  cases,  “expert 
witnesses may not ignore or refuse to consider dose as a factor in 
their  opinions.”    Howard  ex  rel.  Estate  of  Ravert  v.  A.W. 
Chesterton Co., 78 A.3d 605, 608 (Pa. 2013)….  Without such 
evidence, no causal link between the plaintiff’s exposures and his 
disease  may  be  inferred.    See  Wilson  v.  A.P.  Green  Indus., 
Inc.,  807  A.2d  922  (Pa.  Super.  2002)  (affirming  summary 
judgment  where  evidence  of  regular  exposure  [was]  insufficient 
to  establish  mesothelioma  caused  by  plaintiff’s  exposure  to 
asbestos)…. 
 
Id. at 21.   

J-A05032-23 

Finally, Conrail claims, in the alternative, that summary judgment was 

proper  where  Appellant’s  claims  were  barred  by  the  applicable  statute  of 

limitations.    Id.  at  31  (citing  45  U.S.C.  §  56  (no  FELA  “action  shall  be 

maintained under this act … unless commenced within three years from the 

day the cause of action accrued.”).  According to Conrail, 

[Appellant]  testified  he  was  informed  by  his  physician  no  later 
than  2013  that  his  exposures  to  diesel  exhaust,  asbestos,  and 
creosote allegedly caused his CLL.  Based on his own testimony, 
[Appellant]  was  required  to  file  his  claims  no  later  than  2016.  
Because  [Appellant]  did  not  file  suit  until  2017,  his  claims  are 
time-barred. 
 

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judgment: 

Id. at 32 (citation to record omitted). 

We  apply  the  following  standard  in  reviewing  the  grant  of  summary 

[S]ummary judgment is only appropriate in cases where there are 
no genuine issues of material fact and the moving party is entitled 
to  judgment  as  a  matter  of  law.   Pa.R.C.P.  1035.2(1).    When 
considering a motion for summary judgment, the trial court must 
take all facts of record and reasonable inferences therefrom[,] in 
a  light  most  favorable  to  the  non-moving  party[,]  and  must 
resolve all doubts as to the existence of a genuine issue of material 
fact against the moving party.  An appellate court may reverse a 
grant of summary judgment if there has been an error of law or 
an  abuse  of  discretion.    Because  the  claim  regarding  whether 
there are genuine issues of material fact is a question of law, our 
standard of review is de novo and our scope of review is plenary.  
 

Nicolaou  v.  Martin,  195  A.3d  880,  891-92  (Pa.  2018)  (some  citations 

omitted).   

Thus,  our  responsibility  as  an  appellate  court  is  to  determine 
whether the record either establishes that the material facts are 
undisputed or contains insufficient evidence of facts to make out 
a  prima  facie  cause  of  action,  such  that  there  is  no  issue  to  be 
decided by the fact-finder. 

 

Welsh, 154 A.3d at 390 n.5 (citation omitted).  

The  “admission  of  expert  scientific  testimony  is  an  evidentiary  matter 

for the trial court’s discretion and should not be disturbed on appeal unless 

the  trial  court  abuses  its  discretion.”    Buttaccio  v.  Am.  Premier 

Underwriters, 175 A.3d 311, 315 (Pa. Super. 2017) (citation omitted).  “An 

abuse of discretion is not merely an error in judgment; rather, it occurs when 

the  law  is  overridden  or  misapplied,  or  when  the  judgment  exercised  is 

manifestly unreasonable or the result of partiality, prejudice, bias or ill-will.”  

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Scalla  v.  KWS,  Inc.,  240  A.3d  131,  136  (Pa.  Super.  2020)  (citations 

This Court has explained that a 

proponent  of  expert  scientific  evidence  bears  the  burden  of 
establishing  all  of  the  elements  for  its  admission  under  Pa.R.E. 
702,[5] which includes showing that the rule in Frye … is satisfied.  
See  Grady  [v.  Frito-Lay,  Inc.],  839  A.2d  [1038,]  1045  [(Pa. 
2003)].  Frye, which is now embodied in Pa.R.E. 702(c), instructs 
that  the  court  should  not  admit  scientific  evidence  during  trial 
unless the underlying methodology has gained general acceptance 
in  the  scientific  community.    See  Commonwealth  v.  Topa,  … 
369  A.2d  1277,  1281-82  (Pa.  1977).    “Frye  does  not  apply  to 
every  time  science  enters  the  courtroom[;]  …  Frye  does  apply, 
however,  where  an  expert  witness  employs  a  novel  scientific 
methodology in reaching his or her conclusion.”  Folger ex rel. 
Folger v. Dugan, … 876 A.2d 1049, 1058 (Pa. Super. 2005) (en 
banc) (citations omitted).  One method to assess a Frye motion 
is to conduct a Frye hearing, although a hearing is not mandatory.  
See id[.] 

A  witness  who  is  qualified  as  an  expert  by  knowledge,  skill, 
experience,  training,  or  education  may  testify  in  the  form  of  an 
opinion or otherwise if: 
 

(a) the expert’s scientific, technical, or other specialized 
knowledge  is  beyond  that  possessed  by  the  average 
layperson; 

b) the expert’s scientific, technical, or other specialized 
knowledge  will  help  the  trier  of  fact  to  understand  the 
evidence or to determine a fact in issue; and 

c) the expert’s methodology is generally accepted 
in the relevant field. 

  (

  (

a.R.E. 702 (emphasis added); see also Pa.R.E. 705 (“If an expert states an 
opinion  the  expert  must  state  the  facts  or  data  on  which  the  opinion  is 
based.”).   

  P

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____________________________________________ 

5 Rule 702 provides: 
 

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omitted).   

J-A05032-23 

 

Buttaccio, 175 A.3d at 315 (footnote added). 

 

This  Court  was  presented  with  similar  facts  in  Labes,  supra.    The 

appellant/plaintiff previously worked for the defendant/railway, and developed 

pain in his right knee which eventually required surgery.  Labes, 863 A.2d at 

1196-97.    The  appellant  initiated  a  negligence  action  under  FELA,  and 

presented at trial evidence which included, inter alia:  

the  testimony  of  his  orthop[]edic  surgeon,  Dr.  Esformes,  in 
support  of  his  causation  argument  that  the  repetitive  nature  of 
[appellant’s] work had caused back and knee problems, including 
specifically the heavy lifting and extended periods of kneeling on 
hard and uneven surfaces which his job required. 
 

Id. at 1197.  At the close of the appellant’s case, the trial court granted the 

defendant’s motion for compulsory non-suit and dismissed the case.  Id. 

The Labes Court recognized that claimants under FELA have a relaxed 

standard  of  causation.    Id.  at  1198  (citing  Rogers,  352  U.S.  at  506-07 

(“Under this statute the test of a jury case is simply whether the proofs justify 

with  reason  the  conclusion  that  employer  negligence  played  any  part,  even 

the slightest, in producing the injury or death for which damages are sought.  

It does not matter that, from the evidence, the jury may also … attribute the 

result to other causes, including the employee’s contributory negligence.”)).  

We explained that Pennsylvania Courts have 

consistently adhered to the Rogers standard, stating that in only 
the  most  frivolous  cases  may  the  courts  deny  a  FELA 
plaintiff his or her qualified right to a jury trial.  Ciarolla v. 
Union  Railroad  Co.,  …  338  A.2d  669,  671  (Pa.  Super.  1975).  
“[FELA] is to be liberally construed on behalf of injured workers, 

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with  the  result  that  often  recovery  will  be  proper  under  [FELA] 
when  it  would  not  be  under  the  common  law  of  negligence.”  
Ignacic v. Penn Cent. Transp. Co., … 436 A.2d 192, 194 (Pa. 
Super. 1981) (citations omitted). 

abes, 863 A.2d at 1198 (emphasis added). 

The Court concluded: 

The trial court found “plaintiff merely showed it was possible that 
his injuries may have resulted from the defendant’s negligence.”  
Trial  Court  Opinion  at  9  [(emphasis  added)].   Under  FELA, 
however,  such  a  showing  is  sufficient.    Indeed,  a  non-suit 
under FELA is justified only in those cases where there is a zero 
probability  either  of  employer  negligence  or  that  any  such 
negligence contributed to an employee’s injury.  See Pehowic [v. 
Erie  Lackawanna  R.  Co.],  430  F.2d  [697,  699-700  (3rd  Cir. 
1970)  (stating  “a  trial  court  is  justified  in  withdrawing  [FELA] 
issues from the jury’s consideration only in those extremely rare 
instances  where  there  is  a  zero  probability  either  of  employer 
negligence or that any such negligence contributed to the injury 
of an employee.”)).] 

abes, 863 A.2d at 1200 (emphasis added).  We held “the determination of 

negligence, if any, was for the jury” and reversed.  Id. 

 

Although  Labes  involved  the  entry  of  non-suit,  the  reasoning  is 

applicable here.  We further observe: 

Judges, both trial and appellate, have  no special competence to 
resolve  the  complex  and  refractory  causal  issues  raised  by  the 
attempt to link low-level exposure to toxic chemicals with human 
disease.  On questions such as these, which stand at the frontier 
of  current  medical  and  epidemiological  inquiry, if  experts  are 
willing to testify that such a link exists, it is for the jury to 
decide whether to credit such testimony. 

rach v. Fellin, 817 A.2d 1102, 1117 (Pa. Super. 2003) (en banc) (emphasis 

added; citation omitted). 

  L

 

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hearings).   

 

Finally,  we  agree  with  Appellant  that  if  the  trial  court  had  “questions 

regarding Dr. Levin’s methodology, the proper procedure would have been to 

hold a Frye [h]earing,” Appellant’s Brief at 25, which Conrail had raised as an 

alternative  to  summary  judgment.    See  Buttaccio,  supra  (regarding  Frye 

For these reasons, we are compelled to reverse the entry of summary 

judgment,6  and  remand  for  further  proceedings,  which  may  include  a  Frye 

hearing, consistent with this memorandum.  In light of our disposition, we do 

not address Appellant’s second issue. 

Order reversed.  Case remanded for further proceedings.  Jurisdiction 

relinquished. 

Judgment Entered. 

oseph D. Seletyn, Esq. 
Prothonotary 

ate: 3/23/2023 

 

    J

  D

 

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6 To the extent Conrail argues Appellant’s action was barred by the statute of 
limitations,  this  matter  must  be  decided  by  the  jury.    Because  “the 
determination concerning [a] plaintiff’s awareness of [his or her] injury and 
its  cause  is  fact  intensive,”  it  is  “ordinarily  a  question  for  a  jury  to  decide” 
when a plaintiff’s action accrued, for purposes of the statute of limitations and 
accompanying “discovery rule.”  Wilson v. El-Daief, 964 A.2d 354, 362 (Pa. 
2009).  

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