DERIENZO v. Metropolitan Transp. Authority

694 F. Supp.2d 229

George DERIENZO, Plaintiff, v. METROPOLITAN TRANSPORTATION AUTHORITY and Metro-North Commuter Railroad, Defendants.

No. 01 Civ. 8138 (PKL).

United States District Court, S.D. New York.

March 9, 2010.

The Maurer Law Firm PLLC, Ira M. Maurer, Esq., Fishkill, NY, for Plaintiff George DeRienzo.

Hoguet Newman Regal & Kenney, LLP Brian C. Dunning, Esq., Ira J. Lipton, Esq., New York, NY, for Defendants Metropolitan Transportation Authority and Metro-North Commuter Railroad.

OPINION AND ORDER

LEISURE, District Judge:

Plaintiff, George DeRienzo, brings this action against defendants, Metropolitan Transportation Authority and Metro-North Commuter Railroad pursuant to the Federal Employers' Liability Act (FELA), 45 U.S.C. §§ 51-60, alleging personal injuries sustained as a result of a hazardous condition in defendants' workplace. Specifically, plaintiff alleges that while working as a MTA police officer he slipped on debris that had collected at the top of a staircase and subsequently fell down the flight of stairs, injuring his back. After his alleged fall, plaintiff underwent back surgery, which caused, according to plaintiff, a previously undiagnosed tumor to hemorrhage, or become "apoplectic." Plaintiff claims that defendants violated FELA's requirement that an employer provide its employees a safe workplace by failing to exercise reasonable care in informing and protecting him from the debris that had collected on the staircase.

Defendants previously moved for summary judgment on the grounds that plaintiff's alleged accident was not foreseeable within the meaning of the FELA statute, and that plaintiff had failed to demonstrate that his alleged injuries were caused by the fall. This Court granted defendants' motion as to the issue of forseeability. Derienzo v. Metro. Transp. Auth., 404 F.Supp.2d 555, 566-67 (S.D.N.Y.2005). Because forseeability is a necessary element of all of plaintiff's claims, this Court did not address defendants' arguments concerning causation. Id. at 567. On June 20, 2007, the Second Circuit held that disputed questions of material fact exist as to the issue of forseeability and, therefore, it was inappropriate for this Court to grant summary judgment as to this issue. DeRienzo v. Metro. Transp. Auth., 237 Fed. Appx. 642, 646 (2d Cir.2007). The Second Circuit further held that, on remand, this Court should consider whether summary judgment is appropriate on the issue of causation. Id. at 646-47.

The parties submitted supplementary briefing to address issues raised by the Second Circuit's June 20, 2007, ruling. Defendants chose not to revisit the Second Circuit's determination that summary judgment is not appropriate on the issue of forseeability. See id. at 646. Therefore, whether plaintiff's injuries were reasonably foreseeable remains a genuine issue of material fact. While defendants initially moved for summary judgment on causation as to (1) plaintiff's back injuries, and (2) plaintiff's pituitary apoplexy allegedly caused by his back surgery, defendants now have limited their renewed motion for partial summary judgment on causation solely to the issue of plaintiff's pituitary apoplexy allegedly caused by his back surgery.¹ (See Def.'s Mem. of Law in Sup. of Summ. J. ("Def.'s Mem.") 1 n. 1.) For the reasons stated below, defendants' motion for partial summary judgment is granted.

BACKGROUND

I. Plaintiff's Injuries

Plaintiff was hired by defendant Metro-North as a police officer in 1991, and retired with a disability pension on October 9, 2002. (Def.'s Local Rule 56.1 Statement ("Def.'s 56.1") ¶ 1.) Plaintiff claims that, while on duty on September 8, 1998, he slipped and fell down a flight of steps located at Oak Street on Metro-North property in Mount Vernon, New York (the "Steps"). (Id. ¶ 3.) Plaintiff was placed on injury leave by Metro-North from September 8, 1998, until November 10, 1998. (Id. ¶ 6.) In November 1998 plaintiff was deemed qualified to return to work, and he remained on full active duty until the following March. (Id. ¶ 7.) Plaintiff alleges that defendants were negligent in the maintenance and design of the Steps thereby causing his fall and subsequent injuries. (Id. ¶ 3.)

Plaintiff claims that the fall down the Steps caused injuries to his back that ultimately required him to undergo back surgery. (Id. ¶¶ 3, 8.) Plaintiff's May 4, 1999, back surgery (the "May 4 Surgery") was performed by Dr. Damon DelBello. (Id. ¶¶ 3, 8, 13-14.) Dr. DelBello performed the May 4 Surgery from the anterior aspect—the front of plaintiff's body—using a technique that involved an incision in the abdomen, expansion of the abdomen with gas, and the use of a device that allowed the surgeons to see and operate on plaintiff's spine. (Id. ¶ 14; Pl.'s Local Rule 56.1 Statement of Additional Material Facts ("Pl.'s. 56.1 Add.'l") ¶ 1.) While he was recovering from surgery, plaintiff developed a headache, experienced visual disturbances, and began to have difficulty moving his eye. (Def.'s 56.1 ¶ 16.) On May 5, 1999, CT and MRI scans revealed that plaintiff had a large, previously undiagnosed tumor on his pituitary gland, and that this tumor had become apoplectic (or hemorrhaged). (Id.) Plaintiff underwent an emergency operation, during which most of the tumor was removed by Dr. Harold Pikus. (Id. ¶ 16-17.)

Plaintiff claims that his May 4 Surgery caused his tumor to hemorrhage, and that the hemorrhaging tumor caused a number of serious injuries, including permanent brain damage and cognitive dysfunction. (Pl.'s 56.1 Add.'l ¶¶ 17-18; Pl.'s Mem. of Law in Opp.'n to Summ. J. ("Pl.'s Mem.") 4-8.) Plaintiff further claims that in the absence of the May 4 Surgery his tumor would have been discovered before it hemorrhaged. (Pl.'s 56.1 Add'l. ¶ 18.)

II. Plaintiff's Theory of Causation

In support of his theory that the May 4 Surgery caused his tumor to hemorrhage, plaintiff relies primarily on the testimony of Dr. Pikus, the neurosurgeon who performed the operation to remove his tumor. Plaintiff supplements Dr. Pikus's opinion with testimony from Dr. David Blum, an endocrinologist who began to treat plaintiff after his May 4 Surgery, and Drs. DeBello and Cristofaro, physicians who treated plaintiff's back injury.

According to plaintiff, there are three general reasons why pituitary tumors become apoplectic, all of which are related to events that can occur during surgery. (Id. ¶ 8.) The first reason a pituitary tumor may become apoplectic during surgery is if a patient experiences a significant drop in blood pressure. (Id.; Pl.'s Mem. 5.) A drop in blood pressure may cause capillaries near the tumor to cease to function due to an insufficient amount of oxygen and nutrients. (Pl.'s 56.1 Add.'l ¶ 8; Pl.'s Mem. 5.) When the patient's blood pressure returns to its normal level, the dead capillaries can burst, causing the tumor to become apoplectic. (Pl.'s 56.1 Add.'l ¶ 8; Pl.'s Mem. 5.) The second reason is if a patient's blood pressure becomes too high during surgery, blood vessels running through a pituitary tumor may burst, causing the tumor to hemorrhage. (Pl.'s Mem. 5.) Finally, plaintiff contends that a pituitary tumor may become apoplectic due to "congestion of the blood" caused by the use of gas to expand a patient's abdomen during surgery. (Id.)

Plaintiff concedes that Dr. Pikus "cannot say which of the three mechanisms caused" his pituitary apoplexy. (Pl.'s 56.1 Add.'l ¶ 11.) However, plaintiff maintains that Dr. Pikus is able to conclude within a reasonable degree of medical certainty "that one of the three mechanisms . . . almost certainly led to the hemorrhage within plaintiff's pituitary gland." (Id.; Pl.'s Mem. 6-7.)

Plaintiff contends that Dr. Pikus's opinion that the May 4 Surgery caused his apoplexy is based on a differential diagnosis. (Pl.'s Mem. 6.) Plaintiff asks the Court to accept Dr. Pikus's opinion that plaintiff's pituitary apoplexy was caused by his back surgery based on this differential diagnosis. (Id. 9-16.) Plaintiff maintains that the close temporal proximity between his May 4 Surgery and the identification of the tumor lends further support to Dr. Pikus's conclusion that the May 4 Surgery was what caused the apoplexy. (Id. 11-12.) Plaintiff offers the opinions of three other treating physicians, Drs. Blum, Del-Bello and Crisofaro, that focus on the short period of time between the May 4 Surgery and the discovery of plaintiff's apoplectic tumor as evidence that the May 4 Surgery caused his apoplexy. (See Pl.'s Mem. 11-15.)

Plaintiff relies on a case study entitled "Pituitary Apoplexy Following a Lumbar Spine Stabilization," authored by Dr. Pikus, to support the theory that the May 4 Surgery was what caused the apoplexy. (Pl.'s Counter 56.1 ¶ 29.) In the case study, which details plaintiff's diagnosis and treatment, Dr. Pikus notes that the "retraction and ligation of various blood vessels in the course of back surgery and possibly other hemodynamic changes caused by the surgery" may have caused the apoplexy. (Lipton Decl. Ex. 9 (Case Study) at 3.) However, the case study is clear that "compromise of blood flow during surgery is not the only mechanism theorized as a possible cause behind the development of pituitary apoplexy" and that there are a number of alternative possibilities for why the tumor became apoplectic, including hypertension, head trauma, coughing, or sneezing. (Id. at 3-4.) The case study notes that "there are no reported cases of pituitary apoplexy following a herniated lumbar disc repair" and that "further work-up of the patient is necessary to see if any of the identified risk factors may have been the catalyst in the development of the pituitary apoplexy; perhaps the workup will ultimately show that the development of the syndrome in this patient was a spontaneous and unhappy coincidence." (Id. at 4.)

Defendants do not challenge the general credentials of plaintiff's proposed expert witnesses. Rather, it is defend...