J

- A05032

- 23

NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

WILLIAM R. ANDERSON

Appellant

v.

CONSOLIDATED RAIL CORPORATION :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

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

BEFORE: 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 (Con rail )

. After

careful review, w e are constrained to reverse and remand for further

proceedings

.

The trial court summarized the case history as follows :

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 per mi ssion or

excuse, [Appellant] submitted the expert report of [] Mark Levin [,

M.D. (Dr. Levin) ] (the “Levin Re port ”)

, on May 5, 2021.

* * *J

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- 2

- [] 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 chron ic 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

y ears. [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.

Levin Report, 5/3/21, at 2 (unnumbered)

. 1

In preparing his Report, Dr

. Levin stated he had reviewed “ the

C omplaint, [Appellant’s] deposition, Appellant’s discovery responses

, medical

and billing records ,” id.

, a s well as a report (Perez Report) prepar ed 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.

2 Dr. Perez is an expert in the field of i ndustrial h ygiene and o ccupational

h ealth

. 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)J

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- 3

-

“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 pa ssage 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 maint enance 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

le ukemia is caused by benzene

.

_________________ __________ ______ ____ _______

publications he reviewed in prepar ing his report, and stat ed 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)

.

3 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 biologi cal monitoring performed to assess his exposures at any point during his career with [Conrail].”).J

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- 4

-

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

.

On J une 7, 2021, Conrail filed a motion for summary judgment

,

claiming:

Dr. Levin’s r eport 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]

.

* * *

In a case that must be proven based upon established scientific

and medical research, the Levin Report fails to establish either general or specif ic 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 Repor t [, 5/3/21,] at 3 (emphasis added).

Motion for Summary Judgment, 6/7/21, at 1

- 2 , 4 (paragraph number s and

breaks omitted)

. According to Conrail, the deficient Levin Report “ide ntifies

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 c laim ed

, “there is nothing in Dr. Levin’s r eport quantifying

[ Appellant’s] specific exposures.” Id. at 7. Finally, i n the alternative toJ

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- 5

-

summary judgment , Conrail reque sted the trial court schedule a Frye 4 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 r eport 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.

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

Levin’s report wa s “ 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 r eport. [Dr. Levin] conducted a literature search and reviewed findings from several w ell [

- ] 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 court s 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 ).J

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- 6

-

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

matter.” Id. ¶ 30.

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

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

causation.” Order , 7/27/21. Appellant timely appeal ed . 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 n o 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,” [L evin 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 ab used its discretion in granting [Conrail’s] Motion for Summary Judgment as a matter of law excluding Mark Levin, M.D. [?]J

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- 7

-

2. Whether it was error of law for the T rial 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 B rief at 4.

Preliminarily

, we reiterate that this action arises under FELA

. Section 1

provides :

E very 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 su ch

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 C riswell 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 )

.J

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- 8

-

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 i

d. at 14 ( asserting “ Dr. Levin’s expert Report identified opinions

for both general and specific causation. ”) . Appellant argue s :

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 cance r 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 Le vin 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 Opini on, 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 t o 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’s Brief at 24 ( emphasis added; some capitalization modified)

.

Appellant further claims

, to the extent that Dr. Levin “does not

specifically call out any methodology by name in his r eport ,” this is immaterialJ

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- 9

-

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

scientific literature has been long recognized by courts as a g enerally 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 op inions, 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 pr ocedure 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

me thodology. 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. Accor ding to Conrail,

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

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- 10

-

determine [Dr.] Levin’s r eport was inadmissible u nder 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

m ethodology”).

Id. at 18

- 19 (emphasis in original).

Conrail further argues :

[Dr.] Levin’s r eport 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. Se e 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.

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

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

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

maintained under this act ... unless commenced wit hin 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 h is 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.J

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- 11

-

Id. at 32 (citation to record omitted).

We apply the following standard in reviewing the grant of summary

judgment:

[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 judg ment, 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. A n 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 an d 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

de cided by the fact

- finder.

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

T he “ 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. 20 17) (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

- w ill

. ”J

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- 12

-

Scalla v. KWS, Inc.

, 240 A.3d 131, 136 (Pa. Super. 2020) (citations

omitted)

.

This Court ha s 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

un less 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 [

. ]

_________________ __________ ______ ____ _______

5 Rule 702 provides:

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 speci alized 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

.

Pa.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.” ).J

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-

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

.

This Court was presented with similar fact s 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

119 6

- 97

. The appellant initiated a negligence action under FELA, and

presented at trial evidence which includ ed

, 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 119 7

. 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.

Th e Labes Court recogniz ed 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 explai ned 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,J

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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).

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

The Court conclud ed :

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 Lacka wanna R

. Co. ]

, 430 F.2d [ 697

, 699

- 700 (3 rd 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. ” ))

. ]

Labes , 863 A.2d at 1 20 0 (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

.

Trach v. Fellin

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

added ; citation omitted )

.J

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-

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

alternat ive to summary judgment. See B uttaccio

, supra (regarding Frye

hearings).

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

judgment

, 6 and remand for further proceedings

, which may includ e a Frye

hearing , consistent with this memorandum

. In light of our disposition, we do

not address Appellant’s second issue.

Order revers ed

. Case remanded for further proceedings. Jurisdiction

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/23/2023

_________________ __________ ______ ____ _______

6 To the extent Conrail argues Appellant’s action was barred by the statute of

limita tions

, this matter must be decided by the jury. Because “the

determination c oncerning [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 ”

whe n 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).