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The guardian of a worker who suffered a cardiac arrest and a subsequent brain injury at work failed to show that his former employer was liable for the incident for not administering an automated external defibrillator, according to the Commonwealth Court of Pennsylvania.
In Desher v. Southeastern Pennsylvania Transportation Authority, an appellate court judge affirmed a trial court ruling on Thursday denying the guardian’s claims for damages under the Federal Employers Liability Act.
On Oct. 20, 2014, Patrick Devlin, who worked as a welder and rail maintainer for the Southeastern Pennsylvania Transportation Authority, was found by co-workers slumped over in the cab of his truck. His co-workers called 911, removed him from the truck and began CPR and rescue breathing. Paramedics arrived within two minutes and used an AED. At some point, another worker retrieved the AED from a building 100 yards from where Mr. Devlin was discovered, but it was not used before paramedics arrived. Mr. Devlin survived, but he suffered from an anoxic brain injury due to the interrupted supply of oxygen to his brain. As he is incapable of independent living, Nicole Desher, who filed the suit, is his guardian.
SEPTA has had an AED policy in place since 2007, and provides ongoing training for five employees per each of the 62 AEDs at various facilities.
Ms. Desher alleged that SEPTA failed to meet the proper standard of care by failing to properly implement an AED program, and argued that SEPTA breached its duty by failing to train its employees adequately on AED usage. She also retained an expert to testify that SEPTA failed to implement its AED policy in a manner consistent with U.S. Occupational Safety and Health Administration regulations. SEPTA moved to exclude the testimony, which was approved as highly prejudicial because OSHA regulations do not require AEDs. A trial court found in favor for SEPTA, and Ms. Desher appealed.
Although Ms. Desher argued that the court erred in holding that SEPTA did not owe a duty to provide a reasonably safe workplace, the trial court should have let a jury decide whether SEPTA breached its duty and improperly excluded her expert testimony, the Commonwealth Court of Pennsylvania affirmed the decision.
While the parties did not dispute that SEPTA owed Mr. Devlin a duty to provide a reasonably safe workspace, the court held that it could not “imagine circumstances under which the foreseeable risk of cardiac events involved in certain employment could impose a heightened standard of care with respect to AEDs in the workplace. The court also held that trial court did not err in excluding the expert testimony of Ms. Desher, holding that the testimony “did nothing to establish that SEPTA breached any duty” owed to Mr. Devlin.
Attorneys in the case did not immediately respond to requests for comment.
Pennsylvania Gov. Tom Wolf on Friday vetoed a bill that would have brought a drug formulary into the state’s workers compensation system.