York v. BNSF Railway Company
Filing
79
ORDER granting 52 Motion to Exclude, denying as moot 54 Motion to Exclude, denying 60 Motion for Hearing, and granting 61 Motion for Summary Judgment. Entered by Judge Raymond P. Moore on 2/21/2019. (cpear)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 1:17-cv-1088-RM-STV
Roddy York,
Plaintiff,
v.
BNSF Railway Company,
Defendant.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This is a toxic tort suit alleging negligence liability under the Federal Employers’
Liability Act (“FELA”) and failure to maintain adequate conditions pursuant to the Locomotive
Inspection Act (“LIA”). In short, Plaintiff York—employed as a conductor/brakeman by
Defendant BNSF Railway Company (“BNSF”) from 1976 to 1991—alleges on-the-job exposure
to various carcinogens, to which he attributes his development of bladder cancer.
Before the Court are Defendant BNSF’s Daubert motions to exclude testimony by York’s
causation expert Dr. E. Roy Berger (Berger Motion, ECF Nos. 52, 53) and liability expert
Michael Ellenbecker, Sc.D. (Ellenbecker Motion, ECF Nos. 54, 55), to which York responded
(Berger Response, ECF Nos. 56, 57; Ellenbecker Response, ECF Nos. 58, 59). BNSF replied to
each response. (ECF Nos. 63, 64.)1 BNSF further filed a motion for summary judgment, arguing
in the alternative that (1) without the testimony of his experts, York has failed to mount a
1
Unless otherwise noted by the Court, citations herein to the Daubert motions and responses are to the briefs
filed as ECF Nos. 53, 55, 57, 59.
1
prima facie case; (2) even if their testimony is not excluded, York’s claims fail because his
experts have not offered evidence on necessary elements; and (3) York filed this case beyond the
three-year statute of limitations deadline. (See generally SJ Motion, ECF No. 61; see also SJ
Reply, ECF No. 77.) York responds by (1) agreeing that exclusion of Dr. Berger would be fatal
to his case (but maintains exclusion of Ellenbecker is not); (2) arguing that, if included, the
expert’s testimony would supply the facts necessary to establish his case; and (3) contending that
he filed within the limitation period. (See generally SJ Response, ECF No. 75.) The parties have
requested a hearing on BNSF’s motions. (ECF Nos. 60, 65.)
I.
BACKGROUND
A.
Development of Cancer
Plaintiff York was a conductor/brakeman with BNSF from 1976 to 1991. (Statement ¶
4.)2 He filed this action on May 2, 2014, alleging that occupational exposure to diesel exhaust
(benzene) and asbestos during his time with BNSF caused him to develop bladder cancer.
(Id. ¶¶ 1–3.) Both FELA and LIA violations are alleged as based on York’s exposure to these
dangerous or hazardous chemicals. (Id. at 5–6.)
York developed symptoms of edema of the torso (excess liquid) and sought medical
treatment on February 17, 2014, at which time he underwent a series of tests, including urine
analysis. (Id. ¶ 7.) York returned to the doctor on April 3, 2014. (Id. ¶ 8.) At that time, York
learned that he had microscopic hematuria. (Id.) The doctor “discussed with [York] the finding
and significance of hematuria,” which included
GU malignancies, infection, kidney stones, benign tumors, various
congenital defects, medications such as blood thinners, renal
2
For ease of reference, all future citations to the Statement of Undisputed Facts will be to the latest SJ Reply
version (ECF No. 78-1) and referred to as “Statement,” regardless of whether the parties’ original citation was
to the SJ Motion Statement (ECF No. 62-1) or SJ Opposition Statement (ECF No. 76-1).
2
diseases, excessive exercise, prostate enlargement urinary tract
obstruction, injury, hematospermia, and faux hematuria.
(Id.; ECF No. 76-5, at 5.) By then, York was concerned that he had bladder cancer
(Statement ¶ 9), but he did not receive a positive diagnosis of the same until May 14, 2014.
(Id. ¶ 10.)3
B.
Expert Testimony
In support of his claims, York disclosed two experts—Dr. Berger, who is offered to
provide an opinion on the cause of York’s bladder cancer, and Mr. Ellenbecker, who is offered to
opine on BNSF’s liability. (Id. ¶¶ 12–13.) To support his opinion, Dr. Berger performed
approximately five hours of research on the effects of diesel exhaust and asbestos. (Id. ¶ 14.) On
June 28, 2018, Dr. Berger produced a report with his findings based on his review of “medical
records on Roddy York . . . [and] the current literature re: workplace health risk to Mr. York.”
(Berger Report, ECF No. 76-7, at 2.) Based on the sources cited in the bibliography and a
recitation of notes from York’s medical visits (none of which mention diesel, exhaust, fumes,
asbestos, any other carcinogenic chemical, or even suggest that York has ever been in the
vicinity of a locomotive, freight car, or related building or facility), Dr. Berger’s report
concludes:
York was exposed to diesel fuel, fumes and exhaust from working
on and around diesel locomotives on a daily basis. Mr. York was
also exposed to creosote from walking on railroad ties while
inspecting and making up trains. He was exposed to asbestos
located on and in the diesel locomotives and brake shoes on the
locomotives and freight cars as well as pipe covering on the steam
pipes in the building and facilities.
3
The Statement incorrectly cites this date as May 14, 2015, but the deposition testimony from York on which it
is based are clear that the Statement should read: “May 14, 2014.”
3
(Id. at 7.) This conclusion was drafted by York’s counsel, who supplied it to Dr. Berger for
inclusion in his report. (Berger Dep., 76-2, at 17:15–22.) Other than the information quoted
above and discussions with counsel, Dr. Berger received no information whatsoever concerning
York or his work conditions from any other source. He did not review York’s work history
documentation; assess chemical testing records; speak with York; analyze worksite conditions at
BNSF; read the deposition transcripts of York or any other witness in this case; or interview
anyone except York’s counsel in forming his opinions. (Id. at 17:23–19:12.) Moreover,
Dr. Berger does not plan to perform any additional work on this case. (Id.) Finally, the report
indicates that York’s father had colon and bladder cancer, and York smoked from his mid-teens
to 2016. (Berger Report at 5.)
At his deposition, Dr. Berger clarified that he was offering causation opinions with
respect to diesel exhaust and asbestos only. (Berger Dep. at 20:9–13.) He testified that he
reviewed a study concluding that diesel exhaust and asbestos are associated with bladder cancer4
but added that he had not found a single study concluding that diesel exhaust causes bladder
cancer. (Statement ¶ 15.) Dr. Berger could not testify to the specific doses of diesel exhaust or
asbestos to which York was exposed—if he was exposed at all—while working for BNSF:
Q: Do you have any reason to believe that Mr. York received
exposures to diesel exhaust while inside the locomotive in his job
for the railroad?
A: Frequently they don’t close the windows to the locomotives
especially when they’re just sitting there and not moving, but I
can’t quantitate his exposure.
...
4
Dr. Berger: “There is an article, A Molecular and Epidemiological Study on Bladder Cancer, which talks about
an unexpected association with an odds ratio of 2.8 between definite work related exposure to asbestos and
carcinoma of the urinary tract.” (Berger Dep. at 66:2–8.)
4
Q: Did -- did Mr. York work with the windows open or closed -...
A: I don’t know.
...
Q: -- you can’t say, as we sit here today, that under the
circumstances alleged by Mr. York that he would have been
present to be exposed by the time those particulates fell to a level
of exposure of a person; fair?
A: I don’t know the answer to that.
Q: Did you attempt to do an analysis of the level of exposure, if
any, of Mr. York to asbestos?
A: No. I left that to the attorneys.
Q: So as I understand your testimony today with regard to dose,
you have no opinions with regard to the level of exposure of Mr.
York to diesel exhaust?
A: Correct.
Q: With regard to dose, I understand that you have no opinions
with regard to the level of exposure of Mr. York, if at all, to
asbestos while working on the railroad; correct?
A: Well, I -- I know that he was exposed to asbestos because most
of the brake shoes or at least I can’t believe that if one of those
does not contain asbestos that was the only one he was exposed to,
so I think he’s had some exposure with asbestos. How much, I
can’t quantitate.
Q: Okay. So the answer to my question was no, you cannot testify
how much or the level of dose Mr. York was exposed to with
regard to asbestos?
A: Correct.
(Id. ¶ 18.) When probed about the methodology he used in determining whether there is a
reliable causal connection between a plaintiff’s disease and an alleged exposure, he responded, “I
look primarily at the literature, if Bradford Hill criteria are there, I use that. If they’re not there,
basically what the literature says.” (Berger Dep. at 28:25–29:5.) While the section of his report
5
drafted by York’s attorneys indicated that he would be opining on diesel exhaust, asbestos, and
creosote, Dr. Berger acknowledged during his deposition that he is offering no opinions on
creosote. (Id. at 20:3–8.)
II.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when “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 and that the moving party is entitled to a judgment as a
matter of law.” Fed. R. Civ. P. 56(c). When applying this standard, a district court must view the
evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving
party. Matson v. Burlington N. Santa Fe R.R., 240 F.3d 1233, 1235 (10th Cir. 2001). Taking the
evidence in the appropriate light, a district court’s task is to determine “whether there is a
genuine issue for trial[,]” that is, “whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided that one party must prevail as a matter
of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986). When the record, taken
as a whole, “could not lead a rational trier of fact to find for the non-moving party, there is no
genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87
(1986). If the movant bears the burden of showing the absence of a genuine issue of material
fact, the non-movant may not rest on its pleadings but must set forth specific facts showing a
genuine issue for trial as to those dispositive matters for which it carries the burden of proof.
Mesa Oil, Inc. v. Ins. Co. of N. Am., 123 F.3d 1333, 1336, (10th Cir.1997). “The mere existence
of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be
evidence on which the [trier of fact] could reasonably find for the plaintiff.” Anderson, 477 U.S.
at 252. Summary judgment may be granted after a district court appropriately excludes evidence,
6
the absence of which leaves a plaintiff without facts to support a prima facie case. See, e.g.,
Mitchell v. Gencorp Inc., 165 F.3d 778, 780 (10th Cir. 1999).
III.
ANALYSIS
FELA and LIA are “remedial and humanitarian” statutes that impose two separate types
of liability to protect the safety of railroad employees. King v. S. Pac. Transp. Co., 855 F.2d
1485, 1488 n.1 (10th Cir. 1988). FELA permits railroad workers to recover for injuries caused by
the negligence of their employers. Feichko v. Denver & Rio Grande W. R.R. Co., 213 F.3d 586,
591–92 (10th Cir. 2000). LIA, on the other hand, imposes “an absolute duty” on railroad carriers
to ensure that their locomotives are both properly maintained and safe to operate. King, 855 F.2d
at 1488. Because LIA does not create an independent cause of action, such a claim must be
brought under FELA. Feichko, 213 F.3d at 588 n.4.
The Court finds that (A) the undisputed facts viewed in favor of York show that he timely
filed his claims, but (B) his causation expert’s opinion is not reliable and must be excluded, and
(C) even if that opinion were not excluded, summary judgment would still be appropriate for
want of evidence to support specific causation.
A. Based on the current record, York filed his claims within the statutory period.
The Court begins by considering whether York filed this case within the permitted
statutory period. To maintain a claim under FELA, the plaintiff must allege and prove that the
action was filed “within three years from the day the cause of action accrued.” 45 U.S.C. § 56;
see also Rohner v. Union Pac. R.R. Co., 225 F.2d 272, 274 n.7 (10th Cir. 1955). Thus, because
York filed this action on May 2, 2017, the Court’s analysis is concerned only with whether the
facts—taken in the light most favorable to York—show that York’s causes of action had or had
not accrued within the prior three years as a matter of law.
7
FELA does not define when a cause of action accrues. Although it is often clear from the
nature of the injury when the statute of limitations starts to run, the accrual issue is “[m]ore
problematic [in] cases involving latent injuries which cannot be discovered immediately or those
where the injury has an indefinite onset and progresses over many years unnoticed.” Matson, 240
F.3d at 1235 (internal citations omitted). To avoid the harsh result of strict application of the
limitations period in such cases, the Supreme Court has crafted a “discovery rule” for
determining when a federal cause of action accrues. See United States v. Kubrick, 444 U.S. 111,
121–23 (1979); Urie v. Thompson, 337 U.S. 163, 168–71 (1949). Under this rule, a federal
“statute of limitations begins to run when the plaintiff knows or has reason to know of the
existence and cause of the injury which is the basis of his action.” Indus. Constructors Corp. v.
U.S. Bureau of Reclamation, 15 F.3d 963, 969 (10th Cir. 1994). The parties agree that that
“discovery rule” set forth in Kubrick and Urie applies here, and so does the Court. See, e.g.,
Matson, 240 F.3d at 1235 (in which the Tenth Circuit followed a district court’s application of
the discovery rule in a latent-injury FELA case).
As to the first part of the rule—existence of the injury itself—a plaintiff’s FELA cause of
action accrues “only when the accumulated effects of the deleterious [condition] manifest
themselves.” Robinson v. BNSF Ry. Co., 412 F. App’x 113, 116 (10th Cir. 2011) (emphasis
supplied) (quoting Urie v. Thompson, 337 U.S. 163, 170 (1949)). Manifestation does not mean a
plaintiff knows the precise nature or medical origin of the injury. Instead, a plaintiff is “aware of
the injury once he or she has been apprised of the general nature of the injury. Lack of
knowledge of the injury’s permanence, extent, and ramifications does not toll the statute.”
Gustavson v. United States, 655 F.2d 1034, 1036 (10th Cir. 1981); see also Fries v. Chicago &
Nw. Transp. Co., 909 F.2d 1092, 1096 (7th Cir. 1990) (“[U]pon experiencing symptoms a
8
plaintiff has a duty to investigate both the injury and any suspect cause.”) (citing Kubrick, 444
U.S. at 123). Based on the undisputed facts in this case, York’s injury had manifested itself
through physical symptoms—effects which he felt and were worrying enough to prompt a visit
to the hospital on February 17, 2014. Moreover, by at least April 3, 2014, York’s doctor had told
him about urine abnormalities and that bladder cancer was a possibility. Even though he had not
narrowed down the precise nature or medical origin of it, there is no doubt that York was aware
of his injury—and concerned about it—more than three years before he filed suit.
Next, the Court must determine whether, before May 2, 2014, York knew or had reason
to know that “his injury is [ ] work related.” Matson, 240 F.3d at 1236. In Matson, the plaintiff
worked as a locomotive brakeman from 1974 to 1998 for the same railroad that defends this
case, BNSF. There, by April 21, 1995, the plaintiff had twice visited his doctor complaining of
significant and increasing back pain, and he and his doctor then discussed “the relation of some
of these symptoms or all of these symptoms possibly to some factors of working on the railroad,”
but the plaintiff received no formal diagnosis of the specific cause. In affirming the district
court’s finding that the plaintiff’s cause of action had arisen, at the very latest, by April 21, 1995,
the Tenth Circuit clarified that whether the plaintiff was subjectively aware of the specific
causation of his injury is immaterial: By April 21, 1995, he objectively “knew or should have
known that his employment with BNSF was a potential cause of [his] injury. . . . Armed with
that knowledge, [the plaintiff] had a duty to exercise reasonable diligence and investigate
whether this suspicion was correct.” Id. (emphasis supplied) (quoting Fries v. Chicago & Nw.
Transp. Co., 909 F.2d 1092, 1095 (7th Cir. 1990) (“Moreover, the injured plaintiff need not be
certain which cause, if many are possible, is the governing cause but only need know or have
reason to know of a potential cause.”)).
9
Of course, whether the cancer is fairly attributable to BNSF would likely be in dispute
before the statutory filing deadline, after it, at trial, and through appeal. See Nemmers v. United
States, 795 F.2d 628, 631 (7th Cir. 1986). Thus, as the above authorities teach, the question is not
whether York was certain that his injury came from work, or whether he had a final diagnosis in
hand, but whether he was armed with the essential knowledge necessary to investigate his work
as a potential cause. While this standard sets a low bar, and this case is a close call, there is
nothing available on this record that could lead the Court to find that a reasonable person in
York’s position would have considered his work a potential cause of bladder cancer by May 2,
2014. Though BNSF makes much of the fact that York knew he was exposed to asbestos and
diesel exhaust during his tenure with the railroad, such exposure occurred at least thirteen years
before the injury manifested itself, and BNSF has not shown how it was reasonable, as a matter
of law, for York to make the mental leap from possible exposure in 1991 to cancer in 2014.
Unlike the plaintiff in Matson, the record here does not reflect that York subjectively considered
the railroad to be a cause—a fact which might inform this Court as to what is objectively
reasonable. Moreover, the authority BNSF provides from other circuits is factually unhelpful.
See, e.g., White v. Union Pac. R.R. Co., 867 F.3d 997, 1002 (8th Cir. 2017) (finding claims timebarred where “[the plaintiff] acknowledges . . . that this pain was connected to irregularities in
the railroad track”); Mix v. Delaware & Hudson Ry. Co., 345 F.3d 82, 87 (2d Cir. 2003) (similar
conclusion when the plaintiff “testified that at the time he consulted [his doctor], he had ‘some
belief’ that his hearing problems were related to his work”); Fries, 909 F.2d at 1094 (7th Cir.
1990) (“The [plaintiffs] indicated, however, that they could not ascribe the hearing loss to a
cause other than work.”).
10
Finally, BNSF argues that, despite all of this, York had a duty to discover the cause of his
injury with reasonable diligence. While that is a correct statement of the law, the record indicates
that York continued to follow up with his doctors and subjected himself to further medical tests
and analysis after May 2, 2014 in furtherance of divining the medical cause. Taking the facts in a
favorable light, York was not yet armed with what he needed to bring this suit before the
deadline. Therefore, at this juncture, the Court cannot grant summary judgment on statute of
limitations grounds.
B. The Court strikes Dr. Berger’s testimony as unreliable.
BNSF argues that Dr. Berger’s expert testimony should be stricken as unreliable, and
York admits that, should the court strike Dr. Berger’s testimony, his claims fail for want of
evidence of specific causation.5 Having no direct knowledge of any fact of this case, Dr. Berger
is offered as an expert witness and must meet the strictures of Federal Rule of Evidence 702:
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 will help the trier of fact to understand the evidence
or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and
methods; and
(d) the expert has reliably applied the principles and methods
to the facts of the case.
Similarly, Rule 703 requires the expert to rely on “facts or data,” as opposed to subjective
impressions. In evaluating expert testimony under these rules, the district court must first decide
5
“The Plaintiff will concede that if the Court should preclude the opinion testimony of Dr. Berger as to medical
causation then the plaintiff will not be able to prove specific causation.” (SJ Response at 3.)
11
“whether the reasoning or methodology underlying the testimony is scientifically valid.” Norris
v. Baxter Healthcare Corp., 397 F.3d 878, 884 (10th Cir. 2005) (quoting Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579, 592–93 (1993)). Second, the district court must
further inquire into whether proposed testimony is sufficiently “relevant to the task at hand.” Id.
For the purposes of the present inquiry, the Court assumes that Dr. Berger’s testimony is relevant
and needs only decide whether it is reliable. To this end, the Court’s function is that of
gatekeeper, which it performs by making specific findings on the record. Goebel v. Denver &
Rio Grande W. R.R. Co., 215 F.3d 1083, 1088 (10th Cir. 2000).
“To be reliable under Daubert, an expert’s scientific testimony must be based on
scientific knowledge, which ‘implies a grounding in the methods and procedures of science’
based on actual knowledge, not ‘subjective belief or unsupported speculation.’” Dodge v. Cotter
Corp., 328 F.3d 1212, 1222 (10th Cir. 2003) (quoting Daubert, 509 U.S. at 590 (1993)). “[A]ny
step that renders the analysis unreliable . . . renders the expert’s testimony inadmissible. This is
true whether the step completely changes a reliable methodology or merely misapplies that
methodology.” Mitchell, 165 F. 3d at 782. Additionally, “[u]nder the regime of Daubert . . . a
district judge asked to admit scientific evidence must determine whether the evidence is
genuinely scientific, as distinct from being unscientific speculation offered by a genuine
scientist.” Id. at 783. Scientific method today is based on generating hypotheses and testing them
to see if they can be falsified. Daubert, 509 U.S. at 593. As one commentator on Daubert put it,
“[t]he only essential ingredient for good science—and hence the only overarching method—is
that good science must be open to critique and revision. Scientists recognize that what matters
most is the explanatory power of the proffered theory and how well the data support the theory.
12
Erica Beecher-Monas, The Heuristics of Intellectual Due Process: A Primer for Triers of
Science, 75 N.Y.U. L. Rev. 1563, 1574–75 (2000) (citing Daubert, 509 U.S. at 593).
In a toxic tort case, “a plaintiff must prove level of the exposure using techniques subject
to objective, independent validation in the scientific community.” Mitchell, 165 F.3d at 781 (10th
Cir. 1999) (citing Moore v. Ashland Chemical, Inc., 151 F.3d 269, 276 (5th Cir. 1998) (en banc).
In Mitchell, the Tenth Circuit affirmed summary judgment granted by the district court
under facts similar to those presented here. See generally Mitchell, 165 F.3d 778. There, a
warehouseman and truck driver was tasked with stocking, organizing, and filling orders from the
company’s “flammable room”—a small space without ventilation and leaky barrels which the
plaintiff entered several times daily for meaningful intervals and in which he may have been
exposed to several toxic chemicals. Id. at 779. After being diagnosed with leukemia and filing
suit, the plaintiff sought to introduce the testimony of five experts, including four physicians who
examined the plaintiff and material safety data sheets listing the chemicals possibly present in the
“flammable room” and one industrial hygienist. The physicians opined that available scientific
literature suggested there could be a connection between the leukemia alleged and exposure to a
chemical similar to those to which plaintiff was exposed. Id. at 782–83. The hygienist studied
photographs of the “flammable room” and material safety data sheets listing the chemicals
contained in the defendant’s products. Id. at 779. From those materials and his general
knowledge of chemicals, the hygienist pronounced that plaintiff’s exposure to the defendant’s
products probably caused him to develop leukemia—even though the hygienist had never visited
the “flammable room” and conducted no air tests to demonstrate the plaintiff’s level of exposure
to the chemicals. Id. In upholding the district court’s grant of summary judgment based on the
exclusion of the expert testimony, the Tenth Circuit noted that the plaintiffs’ experts “appear[ed]
13
to be genuine scientists,” but “the analytical gaps in their opinions are too broad for their
testimony to endure under the strictures of Daubert and Rule 702.” Id. at 783. To summarize,
“[a]lthough the district court, in this case, did not focus on [the plaintiff’s] level of exposure to
[the d]efendant’s chemicals, our review of the record suggests that the information relied upon
by [the p]laintiffs’ experts with respect to [his] level of exposure was ‘so sadly lacking as to be
mere guesswork.’” Id. at 781 (internal citations omitted).
Here too, the Court finds Dr. Berger’s conclusions inherently unreliable—the product of
guesswork and assumption—which is not fairly attributable to any scientific data-gathering or
methodological analysis. His conclusions are little more than a vehicle for the conclusory
suppositions of York’s counsel which bypass the scientific method. In his expert report, Dr.
Berger made clear that in his five hours of attention to York’s case, he did no analysis pertaining
to York outside a cursory review of York’s medical records—which demonstrate, at best, only
that York had bladder cancer. Those records have nothing to do with York’s presence anywhere
near a railroad or that such presence resulted in injury. York was not personally tested or
physically examined in any way. There is no recount of his work routine or how that routine
personally affected his health. Neither did Dr. Berger collect or review data reflecting the
conditions at BNSF. The hallmark of the scientific method is testability of data for critique and
revision by peers. How could any scientific peer examine or reproduce Dr. Berger’s results when
Dr. Berger himself admits that he can offer no exposure-level opinions of any kind specific to
York? As the report stands, Dr. Berger could swap out York’s name for that of any other exrailroad employee with bladder cancer and the information contained therein would be
functionally identical and equally inoperative as to specific causation. Dr. Berger’s failure to
base his conclusions on York-specific data is reason enough to exclude him.
14
Additionally, BNSF argues that Dr. Berger failed to employ any reliable scientific
methodology—more specifically pursuant to the “Bradford Hill” criteria model for establishing
causal connection based on epidemiology. (Berger Motion at 10–12.) While the Court finds
those criteria helpful in analyzing causation, it declines to announce a rule that all causation
experts in all toxic tort cases must invoke that test. But more importantly here, the Court finds
that Dr. Berger did not employ any methodology, let alone the Bradford Hill criteria. The work
Dr. Berger performed—reading a list of available literature and concluding that York developed
bladder cancer based on counsel’s representation that York was a railroad employee—is not a
reliable procedure subject to scientific scrutiny, but a merely a means to affirm a pre-determined
conclusion. “[S]cientists whose conviction about the ultimate conclusion of their research is so
firm that they are willing to aver under oath that it is correct prior to performing the necessary
validating tests [may] properly be viewed by the district court as lacking the objectivity that is
the hallmark of the scientific method.” Mitchell, 165 F.3d at 783 (internal citation omitted). For
this additional reason, the Court finds that Dr. Berger’s testimony should be excluded.
C. Even if the Court found his testimony admissible, Dr. Berger has not provided
facts sufficient for York to prove specific causation.
Proving causation is necessary to advance an action under both FELA and LIA. See
Straub v. BNSF Ry. Co., 909 F.3d 1280, 1283–84 (10th Cir. 2018) (characterizing LIA as a
supplement to FELA, and finding an LIA violation substitutes for “negligence” in 45 U.S.C. § 51
and creates strict liability, but not dispensing with the causation requirement). Even though the
Supreme Court had stated that FELA’s causation language “is as broad as can be framed,” Urie,
337 U.S. at 181, the parties readily agree that under the current circumstances—alleged toxic
tort—a plaintiff must advance facts, via expert testimony, to show both general and specific
causation. See Myers v. Illinois Cent. R. Co., 629 F.3d 639, 642 (7th Cir. 2010) (clarifying that
15
when the injuries are not attributable to specific moment but “are the product of years of working
on the railroad[,] . . . determining what caused it is not usually obvious to a layman and thus
requires expert testimony”). “General causation is whether a substance is capable of causing a
particular injury or condition in the general population and specific causation is whether a
substance caused a particular individual’s injury.” Norris v. Baxter Healthcare Corp., 397 F.3d
878, 881 (10th Cir. 2005).
Thus, to avoid summary judgment, York must show facts that, taken in the most
favorable light, demonstrate both that diesel exhaust or asbestos (1) is capable of causing bladder
cancer and (2) did in fact cause his bladder cancer. Moreover, a “plaintiff must first demonstrate
general causation because without general causation, there can be no specific causation.” Norris
v. Baxter Healthcare Corp., 397 F.3d 878, 881 (10th Cir. 2005). As to specific causation, in a
toxic tort case, “[s]cientific knowledge of the harmful level of exposure to a chemical, plus
knowledge that the plaintiff was exposed to such quantities, are minimal facts necessary to
sustain the plaintiffs’ burden.” Mitchell, 165 F.3d at 781 (internal quotation omitted).
First, as Dr. Berger admitted, there is no way to tell from the literature provided what, if
any, level of exposure to the chemicals at issue induces bladder cancer (general causation).
Second, there are no facts that could support a finding of specific causation. As demonstrated
above, there is no data from which a reasonable fact-finder could scrutinize injury specific to
York, as opposed to any employee, working in any capacity, under any conditions, for any
railroad (or other enterprise, for that matter). In short, there is no information showing what level
of exposure to dangerous chemicals, if at all, York personally experienced. Without such
information, no findings of fact could be tethered by reason to reality, and BNSF is entitled to
judgment as a matter of law.
16
IV.
CONCLUSION
The Court finds that the filed materials provide sufficient information to resolve these
matters. Therefore,
1) The unopposed request for a hearing (ECF No. 60) is DENIED;
2) The Berger Motion (ECF No. 52) is GRANTED;
3) The SJ Motion (ECF No. 61) is GRANTED;
3) The Ellenbecker Motion (ECF No. 54) is DENIED AS MOOT.
York’s Complaint is DISMISSED with prejudice. The Clerk shall enter judgment as set forth
herein in favor of BNSF Railway Company and close this case.
DATED this 21st day of February, 2019.
BY THE COURT:
____________________________________
RAYMOND P. MOORE
United States District Judge
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