To establish Conrail's liability for wrongful death, plaintiff sought to prove that the physical and emotional suffering decedent endured after the accident destroyed his will to live and that, as a consequence, decedent decided to forego a bone marrow transplant, a potentially lifesaving treatment for his leukemia. The jury returned a verdict finding Conrail liable for wrongful death and awarded plaintiff $1 million in damages on that cause of action. The jury also awarded plaintiff $2 million for decedent's pain and suffering and $263,908 for medical expenses, loss of earnings and household services.
We modify the judgment by dismissing the wrongful death cause of action and vacating the award of damages entered thereon. The proof fails to establish that decedent's death from leukemia was a reasonably foreseeable consequence of Conrail's negligence in failing to provide a safe workplace ( see, Sullivan v. Welsh, 132 A.D.2d 945, 946, appeal dismissed 70 N.Y.2d 796; see generally, Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 314-316, rearg denied 52 N.Y.2d 784, 829). "Even under the `low and liberal' standard applicable to FELA cases ( Smith v. National R. R. Passenger Corp., 856 F.2d 467, 469 [2d Cir 1988]), plaintiff's evidence is insufficient as a matter of law, without total speculation ( Atchison, Topeka Santa Fe Ry. Co. v. Toops, 281 U.S. 351, 355), to permit the inference that any negligent act or omission on Conrail's part caused" decedent's death ( Curley v. Consolidated Rail Corp., 81 N.Y.2d 746, 748, rearg denied 81 N.Y.2d 835, cert denied 508 U.S. 940).
In view of our dismissal of the wrongful death cause of action, we do not address Conrail's contentions that Supreme Court erred in its evidentiary rulings and its charge to the jury relating to that cause of action. We reject the contentions that the conduct of plaintiff's counsel during the presentation of evidence and summation deprived Conrail of a fair trial ( cf., Rohring v. City of Niagara Falls, 192 A.D.2d 228, 231, affd 84 N.Y.2d 60); that the court improperly instructed the jury with respect to mitigation and apportionment of damages; and that the award of damages for pain and suffering is "so high as to shock `judicial conscience'" ( Schneider v. National R. R. Passenger Corp., 987 F.2d 132, 137 [2d Cir 1993]; see, Batchkowsky v. Penn Cent. Co., 525 F.2d 1121, 1124 [2d Cir 1975]).