                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0561-17T4

M.M.,

          Plaintiff-Appellant,

v.

PORT AUTHORITY TRANS-
HUDSON CORPORATION,

     Defendant-Respondent.
____________________________

                    Argued October 2, 2018 – Decided November 1, 2018

                    Before Judges Rothstadt, Gilson, and Natali.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Hudson County, Docket No. L-4751-15.

                    Patrick J. Finn argued the cause for appellant (Steven
                    M. Lafferty, attorney; Patrick J. Finn, on the brief).

                    Lauren T. Grodentzik argued the cause for respondent
                    (Port Authority Law Department, attorneys; Lauren T.
                    Grodentzik, on the brief).

PER CURIAM
        Plaintiff M.M. is a former employee of defendant Port Authority Trans-

Hudson Corporation (PATH or defendant). 1 She alleges that she suffers from

post-traumatic stress disorder (PTSD) as a result of being exposed to diesel

fumes while at work. On the day that she was exposed to the fumes, she fainted

and was taken to the hospital. She appeals from an August 4, 2017 order

granting summary judgment to PATH and dismissing with prejudice her claims

under the Federal Employers' Liability Act (FELA), 45 U.S.C. §§ 51 to 60. She

also appeals from a September 15, 2017 order denying her motion for

reconsideration.

        This appeal centers on the question of whether plaintiff's fainting is a

sufficient physical impact to bring her claim for emotional distress within the

ambit of the zone-of-danger test defined by federal courts interpreting FELA.

We hold that plaintiff's allegations are sufficient to satisfy the physical impact

prong of the zone-of-danger test. Accordingly, we reverse the order granting

summary judgment to defendant and remand for further proceedings.

                                           I

        We take the facts as developed in the summary judgment record and view

them in the light most favorable to plaintiff. Plaintiff was employed as a senior


1
    We use initials for plaintiff to protect her privacy interests.
                                                                          A-0561-17T4
                                           2
signal designer for PATH. As part of her responsibilities, plaintiff worked on

circuit and wiring detail changes and often performed that work inside PATH

train tunnels.

      On December 9, 2012, plaintiff reported to work, and at approximately

2:45 p.m. she entered a train tunnel. When she entered the tunnel, she smelled

diesel fumes and saw blue smoke. As she walked farther into the tunnel, she

observed that the blue smoke and diesel odor was coming from two idling trucks.

She telephoned the trainmaster to report the diesel fumes and to request that the

vent fans in the tunnel be activated. Shortly thereafter, the fans were turned on,

but they ran for only one hour from approximately 3 p.m. to 4 p.m. Plaintiff

also donned two dust masks.

      At approximately 6 p.m., plaintiff was working at a table in a relay room,

located in the tunnel, and she began to feel dizzy. She put her head down on the

table to rest, fainted, fell off the chair, and the right side of her head and body

hit the floor. Plaintiff's supervisor notified the trainmaster, an emergency squad

was dispatched, and plaintiff was removed from the tunnel and transported to a

hospital.

      At the hospital, plaintiff received a computed tomography (CT) scan of

her head.    A CT scan combines a series of x-ray images to create three-


                                                                           A-0561-17T4
                                        3
dimensional views of body organs and tissues. Gale Encyclopedia of Medicine,

1106-07 (4th ed. 2012). The CT scan revealed no injuries or medical issues.

Plaintiff was discharged from the hospital later that night. Her final diagnosis

was "syncope," that is, fainting.

      The next day, plaintiff followed up with her psychiatrist, whom she had

been seeing since approximately 2001.       The psychiatrist had been treating

plaintiff for symptoms related to bipolar disorder and had prescribed medication

for plaintiff. On December 10, 2012, the psychiatrist increased the amount of

medication prescribed to plaintiff.     Thereafter, the psychiatrist diagnosed

plaintiff with PTSD and opined that it was a consequence of the incident on

December 9, 2012. In a letter dated January 6, 2017, the psychiatrist reported

to plaintiff's counsel that plaintiff "continues to demonstrate symptoms of

posttraumatic suffering." The psychiatrist then opined:

            I am of the opinion, to a reasonable degree of medical
            certainty, that patient's psychological suffering is the
            direct result of severe stress from the 12/09/2012
            accident, which caused impairment of patient's mental
            state.     Patient continues to suffer from chronic
            symptoms of depression and anxiety and her prognosis
            for full recovery was poor at the time of last evaluation.

      In addition to seeing a psychiatrist, plaintiff was also receiving therapy

from a licensed psychologist. Between 2001 and December 9, 2012, plaintiff


                                                                         A-0561-17T4
                                        4
visited with her psychologist on a biweekly basis. For several months after the

December 9, 2012 incident, plaintiff saw her psychologist twice a week. The

psychologist reported that plaintiff "was functioning at a very high level" prior

to December 2012. After the incident, the psychologist opined that plaintiff was

suffering from severe PTSD. In a letter sent to plaintiff's counsel, dated March

30, 2017, the psychologist opined:

            It is my impression that [plaintiff] will not be able to
            return to work and her inability to return to work is
            based on a lack of trust for anyone outside of her
            family, which was brought on by her significant
            difficulty at PATH and the inconsistency with which
            the administration treated her.

      Following the incident on December 9, 2012, plaintiff did not return to

work until October 28, 2013. At that time, she was assigned to "desk duty" as

directed by a PATH psychologist. While on "desk duty," plaintiff was not to

work in the "field," which included the train tracks and tunnels. After working

several days, on November 4, 2013, plaintiff left her position with PATH and,

thereafter, she did not return to work. Accordingly, plaintiff has not been

employed since November 4, 2013.

      On November 18, 2015, plaintiff filed a complaint against PATH seeking

damages under FELA for the emotional distress injuries she suffered from the



                                                                         A-0561-17T4
                                       5
December 9, 2012 incident. 2 Specifically, plaintiff claims that she suffers from

PTSD. While she acknowledges that she did not suffer any permanent physical

injury on December 9, 2012, she asserts that she suffered a physical impact when

she fainted and fell to the floor.

      The parties engaged in and completed discovery.           During discovery,

plaintiff was deposed, and her counsel produced the letters from her psychiatrist

and psychologist, which described plaintiff's PTSD. Just before the close of

discovery, PATH moved for summary judgment.               In opposition, plaintiff

produced an expert report from a toxicologist who opined that the exposure to

the diesel fumes caused plaintiff to faint on December 9, 2012.

      The trial court heard oral arguments on the motion on August 4, 2017.

That same day, the court entered an order granting summary judgment to PATH

and dismissing plaintiff's FELA claim with prejudice. The court explained its

ruling on the record. The trial court found that plaintiff's case was similar to the

United States Supreme Court case in Metro-North Commuter Railroad Co. v.

Buckley, 521 U.S. 424 (1997).        In Buckley, the Supreme Court held that

emotional distress damages could not be recovered under FELA by a worker



2
  State and federal courts are vested with concurrent jurisdiction to hear FELA
cases. 45 U.S.C. § 56.
                                                                            A-0561-17T4
                                         6
who was disease-free, but had been exposed to asbestos. Id. at 432. The trial

court here reasoned that "if asbestos is not within the zone of danger as per the

Supreme Court of the United States, then diesel fumes/carbon monoxide is not

within the zone of danger." The trial court then reasoned:

            [T]he fumes and/or carbon monoxide present by - -
            presented by plaintiff was that of a simple physical
            contact with a substance that might cause a disease at a
            substantially later time and, therefore, the claim for
            negligent infliction of emotional distress may not be
            upheld under FELA, therefore, summary judgment is
            granted.

      Plaintiff moved for reconsideration. On September 15, 2017, the court

denied plaintiff's motion. Plaintiff now appeals.

                                       II

      On appeal, plaintiff makes four arguments. She contends that the trial

court erred (1) in determining that she did not sustain a physical impact; (2) in

failing to distinguish the facts of her case from the facts in Buckley; (3) in

misinterpreting Buckley; and (4) in denying her motion for reconsideration. All

of the arguments presented by plaintiff involve one overriding issue —did

plaintiff suffer a physical impact within the meaning of the zone-of-danger test

when she was exposed to diesel fumes? We are persuaded that plaintiff has




                                                                         A-0561-17T4
                                       7
alleged a physical impact and, thus, defendant was not entitled to summary

judgment.

      We review summary judgment orders de novo, applying the same standard

used by the trial court. Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins.

Co. of Pittsburgh, 224 N.J. 189, 199 (2016) (citing Mem'l Props., LLC v. Zurich

Am. Ins. Co., 210 N.J. 512, 524 (2012)). Summary judgment should be granted

"if the pleadings, depositions, answers to interrogatories and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any

material fact challenged and that the moving party is entitled to a judgment o r

order as a matter of law." R. 4:46-2(c); see also Templo Fuente De Vida Corp.,

224 N.J. at 199. When no issues of material fact exist, but a question of law

remains, our review of that legal issue is plenary. Templo Fuente De Vida Corp.,

224 N.J. at 199 (citing Manalapan Realty, LP v. Twp. Comm. of Manalapan,

140 N.J. 366, 378 (1995)).

      Here, the question presented is whether plaintiff has brought a cognizable

claim for emotional injuries under FELA. A FELA claim brought in state court

is governed by federal law. Donovan v. Port Auth. Trans-Hudson Corp., 309

N.J. Super. 340, 348 (App. Div. 1998). FELA "makes common carrier railroads

liable in damages to employees who suffer work-related injuries caused 'in


                                                                           A-0561-17T4
                                        8
whole or in part' by the railroad's negligence." Norfolk & W. Ry. Co. v. Ayers,

538 U.S. 135, 140 (2003) (quoting 45 U.S.C. § 51). An employer has a duty

under FELA "to use reasonable care in providing employees a safe work

environment." Stevens v. N.J. Transit Rail Operations, 356 N.J. Super. 311, 319

(App. Div. 2003) (citing Bailey v. Cent. Vt. Ry., 319 U.S. 350, 352 (1943)).

"[T]he quantum of evidence required to establish liability in a FELA case is

much less than in an ordinary negligence case." Kapsis v. Port Auth. of N.Y. &

N.J., 313 N.J. Super. 395, 403 (App. Div. 1998) (quoting Harbin v. Burlington

N. R.R. Co., 921 F.2d 129, 131 (7th Cir. 1990)). Accordingly, an employer may

be held liable for risks that would be too remote to support liability at common

law. See Stevens, 356 N.J. Super. at 318-19.

      Claims for emotional distress are permitted under FELA. Consol. Rail

Corp. v. Gottshall, 512 U.S. 532, 550 (1994). Such claims are divided into two

categories: (1) "[s]tand-alone emotional distress claims not provoked by any

physical injury," and (2) "emotional distress claims brought on by a physical

injury, for which pain and suffering recovery is permitted." Ayers, 538 U.S. at

147. In finding stand-alone emotional distress claims to be cognizable, the

United States Supreme Court acknowledged "the potential for fraudulent and

trivial claims" and the prospect that such suits could "lead to unpredictable and


                                                                         A-0561-17T4
                                       9
nearly infinite liability for defendants." Gottshall, 512 U.S. at 551-52. To

address those liability concerns, the Court adopted a zone-of-danger test, which

limits the scope of stand-alone emotional distress claims brought under FELA.

Id. at 554. Under the zone-of-danger test, claims are confined "to plaintiffs who:

(1) 'sustain a physical impact as a result of a defendant's negligent conduct'; or

(2) 'are placed in immediate risk of physical harm by that conduct' - that is, those

who escaped instant physical harm, but were 'within the zone of danger of

physical impact.'" Ayers, 538 U.S. at 146 (quoting Gottshall, 512 U.S. at

547-48).

      In Buckley, the Court applied the zone-of-danger test to the plaintiff's

FELA stand-alone emotional distress claim that was solely based on his

exposure to asbestos, and not on any related disease or symptom. See 521 U.S.

at 427-30. The Court held that the plaintiff could not bring an emotional distress

claim under FELA for a fear of developing cancer stemming from the exposure

to asbestos. Id. at 432. In that regard, the Court reasoned that exposure alone

was insufficient to show a physical impact under the zone-of-danger test. Ibid.

The Buckley Court explained that "the words 'physical impact' do not encompass

every form of 'physical contact.'" Ibid. Accordingly, the Buckley Court held

that an asymptomatic plaintiff did not suffer a physical impact after "a simple


                                                                            A-0561-17T4
                                        10
physical contact with a substance that might cause a disease at a substantially

later time—where that substance, or related circumstance, threatens no harm

other than that disease-related risk." Id. at 430.

      In ruling that exposure alone was not a physical impact, the Buckley Court

explained that emotional-distress claims that satisfy the zone-of-danger test

generally involve "a threatened physical contact that caused, or might have

caused, immediate traumatic harm." Id. at 430-31 (citing Deutsch v. Shein, 597

S.W.2d 141, 146 (Ky. 1980) (holding that x-ray exposure was a "physical

contact" supporting recovery for emotional suffering where immediate harm to

fetus was suspected)). Moreover, the Buckley Court recognized that under

common law, "a plaintiff who exhibits a physical symptom of exposure [may]

recover" for emotional distress caused by such exposure. Id. at 432 (citing

Herber v. Johns-Manville Corp., 785 F.2d 79, 85 (3d Cir. 1986); Mauro v.

Owens-Corning Fiberglas Corp., 225 N.J. Super. 196 (App. Div. 1988)); see also

id. at 436-37 ("The common law permits emotional distress recovery for that

category of plaintiffs who suffer from a disease (or exhibit a physical symptom)

. . . thereby finding a special effort to evaluate emotional symptoms warranted

in that category of cases[.]").




                                                                        A-0561-17T4
                                       11
      Here, plaintiff seeks recovery for the emotional injury of PTSD. She is

not seeking recovery for any physical injury. As such, her claim is a stand-alone

emotional distress claim that must satisfy the zone-of-danger test. Plaintiff

argues that she satisfies both prongs of the test. First, she argues she suffered a

physical impact when she was exposed to diesel fumes, inhaled the fumes, and

fainted. Second, she argues that working in the train tunnels with the diesel

fumes placed her in an immediate risk of physical harm. The trial court rejected

plaintiff's arguments, found her claim to be analogous to the claim in Buckley,

and held that plaintiff had not satisfied the zone-of-danger test.

      In cases under FELA, whether a claimant has satisfied the zone-of-danger

test is a question of law, which on appeal is reviewed de novo. Smith v. Union

Pac. R.R. Co., 236 F.3d 1168, 1170 (10th Cir. 2000); Nelson v. Metro-North

Commuter R.R., 235 F.3d 101, 113 n.12 (2d Cir. 2000); Everett v. Norfolk S.

Ry. Co., 734 S.E.2d 388, 390 (Ga. 2012). Viewing the facts in the light most

favorable to plaintiff, we conclude that she has pled a "physical impact" under

the zone-of-danger test as described in Gottshall and Buckley. Namely, plaintiff

was exposed to a noxious substance, diesel fumes, and suffered an immediate

physical symptom from that exposure—she fainted. See Buckley, 521 U.S. at

432, 437. Moreover, she immediately began to suffer from PTSD. We find


                                                                           A-0561-17T4
                                       12
plaintiff's exposure to diesel fumes constitutes a physical impact as the exposure

caused plaintiff to suffer the immediate physical harm of fainting.

      The parties disagree as to whether the diesel fumes caused plaintiff to

faint, however, plaintiff has provided sufficient facts to create a genuine material

factual dispute on this issue. Namely, plaintiff has provided a toxicologist's

report authored by Donald A. Fox, Ph.D., dated July 21, 2017, wherein Dr. Fox

concludes: "[I]t is my professional opinion that, [M.M.'s] exposure to diesel

exhaust in the PATH tunnel and relay room on Sunday, December 9, 2012,

caused her syncope." Dr. Fox's report combined with plaintiff's testimony from

her deposition creates a factual dispute as to whether the diesel fumes caused

plaintiff to faint. 3 Accordingly, resolving this dispute is a matter for a jury.

      We further conclude that the trial court incorrectly equated the facts

underlying the instant case with those in Buckley. In Buckley, the plaintiff

suffered no symptoms from his exposure to asbestos, and his emotional injury

was based on his fear of contracting an illness at some point in the future. 521

U.S. at 427. Here, plaintiff has pled that she suffered an immediate symptom,



3
  Defendant argues we should not consider the toxicologist's report as it is a net
opinion that was not disclosed in discovery. The trial court made no evidentiary
rulings on the expert report. As such, we consider the report as part of the
record. On remand, the trial court may address the admissibility of the report.
                                                                             A-0561-17T4
                                        13
fainting, after she was exposed to the diesel fumes. She further argues that her

emotional injury of PTSD is an injury that developed directly after, and as a

result of the incident.

      Federal case law does not foreclose a claim for stand-alone emotional

distress brought on by a single physical impact from a noxious substance. In

that regard, we have found no decision by the United States Supreme Court or

the United States Court of Appeals for the Third Circuit that has precluded a

claim based on a one-time physical impact from exposure to noxious fumes.

Consequentially, we are persuaded that this case involves more than exposure

to "a substance that might cause a disease at a substantially later time[.]"

Buckley, 521 U.S. at 430. Instead, plaintiff's stand-alone claim for emotional

distress satisfies the zone-of-danger test because she suffered a physical impact

when she was exposed to diesel fumes that caused her to faint. Accordingly,

defendant was not entitled to summary judgment on this issue.

      We note that defendant moved for summary judgment on the ground that

plaintiff had not satisfied the zone-of-danger test, and therefore, her stand-alone

claim of emotional distress was not cognizable under FELA. Defendant did not

challenge plaintiff's proofs as to any other element of negligent infliction of

emotional distress. Nonetheless, we comment briefly on the issue of causation.


                                                                           A-0561-17T4
                                       14
While it remains for the jury to determine whether plaintiff's exposure to the

diesel fumes caused her emotional injury of PTSD, for summary judgment

purposes, we find plaintiff has provided sufficient evidence connecting her

emotional injury to the diesel exposure. Namely, plaintiff has provided the

expert opinion of her psychiatrist who concluded that plaintiff developed PTSD

as a result of "the accident" that occurred in the train tunnels on December 9,

2012, which included plaintiff's exposure to the diesel fumes and her subsequent

fainting and falling.

      Reversed and remanded for further proceedings.         We do not retain

jurisdiction.




                                                                        A-0561-17T4
                                      15
