Willis v. BNSF Railway Company

Filing 54

ORDER by Magistrate Judge John A. Gorman denying 44 Motion exclude testimony. I find that Dr. Crickard's causation opinion meets the tests set forth in Daubert. See written order. Entered on 3/7/13. (WW, ilcd)

E-FILED

Thursday, 07 March, 2013 11:15:11 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
Jeffrey Willis,
Plaintiff
v.
BNSF Railway Company,
Defendants

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Case No. 11-1208

ORDER and OPINION
Now before the Court is the Defendant’s motion to exclude testimony of the
Plaintiff’s expert Dr. George Crickard III. The motion is fully briefed, and I have
carefully considered the arguments of the parties. As stated herein, the motion is denied.
I. BACKGROUND
Plaintiff Jeffrey Willis is employed by BNSF Railway Company as a conductor.
On April 22, 2009, Willis was tying down (or setting) a handbrake on a railcar. A
handbrake is operated by turning a wheel clockwise; this tightens a chain, which applies
the brake against locomotive’s wheels. See, Richardon v Consolidated Rail Corp. 17 F3d
213, 215 (7th Cir 1994). As Willis turned the wheel, it slipped and he felt a “pop” in his
shoulder. He reported to the trainmaster later that day that he had “felt a little pop” in his
shoulder while tying a handbrake, but he did not seek medical treatment that day.
The next day, Willis saw a nurse practitioner, who diagnosed him with “shoulder
pain and right shoulder strain.” The practitioner scheduled a follow up appointment with
Dr. Crickard for two weeks later. At that appointment, Willis reported the same thing: he
felt a pop in his right shoulder as he was tying a hand brake at work for BNSF. Willis
described the process of tying a handbrake, explaining to the doctor that it involved
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turning a wheel with his right hand and right arm. Willis also told the doctor that he had
had no previous shoulder pain.
Dr. Crickard ordered and reviewed an X-ray and an MRI. The MRI showed a
partial tear of one of the rotator cuff muscles. It also showed mild osteoarthritic changes
in the ball and socket of the shoulder and the collar bone. He initially treated Willis with
cortisone injections and physical therapy, but those brought little improvement. By June,
Dr. Crickard diagnosed right shoulder impingement and right shoulder rotator cuff
tendinitis.
On July 1, 2009, Dr. Crickard performed arthroscopy1 to see whether there was
anything else that his examinations and tests had not picked up. Dr. Crickard was able to
see that, while the rotator cuff was intact, it showed some “undersurface fraying,” which
the doctor described as being similar to an area on a t-shirt that starts to wear out – it gets
thinner but doesn’t have an actual hole. He testified that this type of fraying can result
from an acute incident or it can develop slowly over time. He could not “put a time limit
on when” it had first occurred.
He also observed arthritic changes, which included a hook-like bone spur. He
removed the spur, thereby creating more room for his irritated muscle to move within the
joint. Dr. Crickard opined that the bone spur “more than likely developed over time. It’s
the pain in the shoulder that was the acute injury and acute incident.”
While the arthroscopy created more room for Willis’ irritated muscle to move
within the shoulder joint, it did not correct the irritation or damage to the muscle itself,
which remained irritated. The damage to the rotator cuff could not be surgically repaired.
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Arthroscopy is partially diagnostic; it involves insertion of a camera so the shoulder
joint can be viewed. It is also therapeutic; the physician is able to perform certain
procedures.
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Despite the arthroscopy and continuing treatment with cortisone injections and physical
therapy, designed to target the pain, irritation and inflammation, Willis’ pain nonetheless
continued. The pain has never fully abated, and Dr. Crickard believes Willis will never be
completely without pain.
In this FELA action Plaintiff has identified Dr. Crickard as an expert witness on,
inter alia, causation.2 In his deposition, Dr. Crickard testified about his treatment and
diagnosis of the Plaintiff. As to the changes he saw to the rotator cuff, he stated that they
could have resulted from an acute incident or it could have developed slowly over time.
The bone spur he saw was “more than likely developed over time.” He was “absolutely”
certain that the pain Willis developed in his right shoulder was “directly related to the
injury he sustained at work” on April 22, 2009, stating that the “pain in the shoulder
…was the acute injury and acute incident,”
II. APPLICABLE LAW
A. FELA
Willis alleges violations of the Federal Employees Liability Act (FELA) and the Federal
Safety Appliance Act (FSAA). FELA is a general negligence statute; in and of itself, it
“neither prohibits nor requires specific conduct by a railroad.” Waymire v Norfolk &
Western Railway Co., 218 F3d 773, 775 (7th Cir 2000). The FSAA imposes an absolute
duty on railroads to provide safe equipment. DeBiasio v Illinois Central RR, 52 F3d 678,
683 (7th Cir 1995). The FSAA does not itself create a private right of action, rather it
allows employees injured by violations of the FSAA to sue under FELA. Crane v Cedar
Rapids & Iowa City Railway Co., 395 US 164 (1969).

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Dr. Crickard did not produce an expert report because he was a treating physician. Under Rule 26, only
experts retained specifically for trial testimony must produce a report.
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In order to recover under FELA, a plaintiff must first prove actual negligence; a
violation of FSAA is negligence as a matter of law. Urie v Thompson, 337 US 163, 189
(1949). Hence, proof of a violation of FSAA is sufficient; there is no necessity to prove
that the violation constitutes negligence.
A plaintiff must also prove that his injury was caused by the FSAA violation,
although causation under FELA is not the ordinary standard of proximate causation.
Liability is established when “the proofs justify with reason the conclusion that employer
negligence played any part, even the slightest, in producing the injury … for which
damages are sought.” Rogers v Missouri Pacific Railroad Co., 352 US 500, 506 (1957).
See, McBride v CSX Transportation, Inc., 598 F3d 388 (7th Cir 2010), aff’d CSX
Transportation, Inc., v McBride, 131 SCt 2630 (2011) (“relaxed” standard of causation
under FELA); Gallick v Baltimore & Ohio Railroad Co., 372 US 108 (1963) (upholding
jury verdict for plaintiff who lost both legs due to infected insect bite based on employer
negligence in maintaining a stagnant pool of water that attracted insects and vermin).
B. EXPERT TESTIMONY AND DAUBERT
Rule 702 of the rules of Evidence provides that an expert may offer opinion
testimony if:
a. the expert’s scientific, technical or other specialized knowledge will assist the
jury to understand 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
e. the expert has reliably applied the principles and methods reliably to the facts
of the case.
Id.
In Daubert v Merrell Dow Pharmaceuticals Inc., 509 US 579 (1993), the
Supreme Court set out a three part analysis for determining whether an expert’s
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testimony is admissible. First, the trial court must determine that the expert is qualified to
provide an opinion on the subject. Second, the court must conclude that the expert’s
methodology is reliable. Third, the court must agree that there is a connection between
the methodology and the opinion. Id at 589-92. See also Myers v Ill. Cent. RR Co., 629
F3d 639, 644 (7th Cir 2010).
The proponent of an expert bears the burden of demonstrating that the expert’s
testimony would satisfy the Daubert standard. Lewis v CITGO Petroleum Corp., 561 F3d
698 (7th Cir 2009), citing Bourjally v US, 483 US 171, 175-76 (1987).3
The district court has significant latitude in determining how to measure the
reliability of the proposed expert and whether the testimony is in fact reliable. Gayton v
McCoy, 593 F3d 610, 616 (7th Cir 2010). Nonetheless, the court must provide “more
than just conclusory statements” about admissibility to show that it properly performed
its gatekeeping function. Id. The admissibility determination is not intended to supplant
the adversarial process, and so even “shaky” testimony may be admissible. Id. See also,
Ortiz v City of Chicago, 656 F3d 523, 536 (7th Cir 2011), citing Daubert, 509 US at 596.
In the context of a FELA case, the lower standard of causation is an issue entirely
distinct from Daubert’s standards for admission of expert testimony. Myers, 629 F3d at
643. Expert testimony is still needed to show causation in FELA cases, unless the causal
link is so obvious a layperson can understand it, as, for example, when the plaintiff
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Bourjally dealt with admissibility of evidence before a jury in a criminal case. Lewis
applied Bourjally to the summary judgment stage in a civil case without any discussion.
Nonetheless, after Lewis, courts in this Circuit place the burden on the party proffering
the expert, rather than on the party moving to exclude the expert and/or his testimony
See, e.g., Estate of Carlock v. Williamson, 2012 WL 5386136 at *5 (CD IL)
(D.J.Myerscough); accord, Goldberg v 401 North Wabash Venture LLC, 2013 WL
212912 at *1 (ND IL); Cunningham Charter Corp. v Learjet Inc., 2012 WL 1565535 at
*3 (SD IL).
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suffered a broken leg when hit by a vehicle. Id, citing Claar v Burlington Northern
Railroad Co., 29 F3d 499, 503 (9th Cir 1994). See also, Wills v Amerada Hess Corp., 379
F3d 32, 47 (2nd Cir 2004) (Daubert applies regardless of whether the causation standard
is lowered).
Rule 702 does not distinguish a treating physician from other experts when the
physician is offering expert testimony on causation. McCann v. Illinois Central Railroad
Co., 711 FSupp2d 861, 868 (CD Ill 2010), quoting O’Connor v. Commonwealth Edison
Co., 13 F3d 1090, 1105 n.14 (7th Cir 1994).
III. DISCUSSION
Defendant has filed a motion challenging Dr. Crickard’s opinion on causation.4
The Railroad asserts that Dr. Crickard’s opinion about causation must be rejected because
it is not based on sufficient facts or data, nor is it sufficiently grounded in scientific
methodology. It is important to keep in mind exactly what Dr. Crickard’s opinion was:
that Plaintiff’s pain was caused by his setting the handbrake on April 22.
The first prong of Daubert analysis requires a determination that the expert is
qualified to provide an opinion on the subject. Defendant raises no objections to Dr.
Crickard’s qualifications and the Court finds none.
The second prong requires an examination of the expert’s methodology and a
finding that it was reliable. Defendant points to Myers v Illinois Central Railroad Co.,
629 F3d 639 (7th Cir 2010) for guidance on this question. In Myers, the plaintiff had
worked for the defendant for 30 years. During that time he had suffered a number of
knee, elbow, back and neck injuries that forced his retirement. He sued the railroad,
claiming that these disorders were caused by the railroad’s negligence. He tendered
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No challenge to Dr. Crickard’s qualifications is presented.
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reports from 4 expert witnesses: a retained ergonomist and 3 treating physicians. The
district court barred all 4 experts, and plaintiff appealed.
The Seventh Circuit began by affirming that a plaintiff must have expert
testimony to establish causation, unless the injury is one that is so obvious that causation
would be obvious to a layman. Id. at 642-43. W[W]hen there is no obvious origin to an
injury and it has “multiple potential etiologies, expert testimony is necessary to establish
causation.” Id. at 643, quoting Wills, 379 F3d at 46-47 and citing Claar, 29 F3d at 503.
Neither Myers nor his doctors could point to a specific injury or moment that brought on
his knee, elbow and back and neck problems; instead, they claimed that his injuries were
“cumulative trauma injuries,” brought on by years of physically demanding work duties.
The Court of Appeals concluded that “determining what caused [an injury of this nature]
is not usually obvious to a layman,” it requires expert testimony.
Unlike the situation in Myers, the Plaintiff and Dr. Crickard point to a single,
discrete event that marked the onset of his pain. It was pain that drove Plaintiff to the
doctor, and pain that the doctor was treating. It is at least arguable that expert testimony is
not even needed under this scenario because the causation issue is one of simple common
sense.
Assuming, however, that expert testimony on causation is needed, Dr. Crickard’s
methodology must be reviewed. In Myers, the District Court had found that the
physicians lacked knowledge of Myers’s medical history and railroad duties. As a result,
their causation opinions were not based on facts and were inadmissible. On appeal, the
Myers argued that the doctors used “differential diagnosis” and that their ignorance of job

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duties should have been explored on cross-examination rather than forming the basis for
excluding their testimony.
The Seventh Circuit defined differential diagnosis and noted that the issue was not
the diagnosis of Myers’ ailments but the causation of those aliments, which requires
differential etiology. Id. at 644. In the former, a physician “systematically compares and
contrasts clinical findings from a patient’s medical history to determine which of two or
more diseases with similar symptoms is the one from which the patient is suffering.” Id.
In the latter, “the doctor rules in all the potential causes of a patient’s ailment and by
systematically ruling out causes that would not apply to the patient, the physician arrives
at what is the likely cause of the ailment. Id.
Neither method is controversial; the question is whether, in a particular case, the
methodology is reliable. In Myers, the Court found that the physicians had not applied the
methodology reliably. For example, the physician who had performed back surgery did
not know about Myers’ earlier back injury and admitted that this would have been an
important consideration. He also admitted that he had not explored Myers job duties or
considered how they might have affected his causation opinion. The Court concluded that
the doctors’ causation opinions were based on common sense, not on any medical
methodology.
In this case, Dr. Crickard was aware of an acute event – Willis’ shoulder popped
while he was setting the hand brake. Dr. Crickard had a general description of what that
entailed, although he did not know exactly what a handbrake was and had never set one
himself or seen one set by someone else. He also knew that Willis had not suffered from
any shoulder pain before his shoulder popped. During questioning, Dr. Crickard testified

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that Willis’ weight, gastric bypass, or physical therapy had not been “ruled in” because
there was nothing connecting them with the sudden onset of pain on April 22. He testified
that he had considered that the osteoarthritis and tendinitis were potential causes of pain
but ruled them out because, once again, Willis had not noted pain before April 22.
The Seventh Circuit in Myers commented that if differential etiology is used and
the physician is unaware of aspects of work conditions, “that doesn’t necessarily mean
the expert should be struck.” Id. But where a physician knows “little or nothing” about
work conditions, then it cannot be said that he is engaging in differential etiology. Id. In
other words, it all depends on how much the doctor knows about the patient’s work duties
and whether his knowledge is accurate.
Defendant would have this Court require that the physician understand every
detail – perhaps even have personal knowledge - about the work Plaintiff was doing when
he felt the “pop” in his shoulder. For example, Defendant asserts that, in order for Dr.
Crickard to opine on causation, he would have had to know such things as the specifics of
Willis’ job duties, the physical requirements of those duties, the forces involved in tying a
handbrake, or the forces required to cause the injury, or perhaps that he had relied on
literature to support his opinion, measured the forces involved, or relied on scientific
studies.
The Court knows of no requirement that a treating physician have such detailed
non-medical information in order to opine on medical causation, at least not where, as
here, there is a single discrete event. The cases on which Defendant relies for this
proposition are cases, like Myers, supra, in which the plaintiff’s theory was based not on
a single event but on years of physical labor.

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That is not to say that work conditions are immaterial but rather that work
conditions may – or may not- be pertinent when the physician utilizes a differential
etiology methodology. The extent of the physician’s knowledge about those conditions
will vary depending on the type of case. Where, as here, there was a general knowledge
about the specific duty and there was a single discrete event, an in-depth knowledge and
rigorous scientific application of the laws of physics, for example, would not be
necessary for a treating physician to opine on causation.
Experts generally do not have to base their opinions on personal knowledge or
observation. FRE 703. An expert may rely on facts that he has been made aware of, and
those facts do not even have to be admissible. Id. As noted above, Plaintiff described the
process of tying the handbrake to the doctor. Although his description was general, the
description was sufficient for the doctor to connect the newly reported pain to that event.
Under FELA’s relaxed causation standard, an employee can recover when a
single traumatic event activates or aggravates a previously latent condition or made it
symptomatic. Cella v. US, 998 F2d 418, 428-29 (7th Cir 1993); Accord, Aldridge v
Baltimore & Ohio Rail Co., 789 F2d 1061, 1065 (4th Cir 1986). The fact that Dr.
Crickard was unable to connect the underlying conditions of osteoarthritis or tendinitis to
the April 22 incident is therefore insignificant. He was clearly and definitively able to
opine about the causal connection between the symptom – pain – and the event of April
22.
Dr. Crickard’s opinion was the result of a reasoned process based on the facts that
he thought were pertinent. While there may be shortcomings in the methodology and its
application to the facts, those shortcomings may be explored on cross examination. They

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are not fatal to his methodology and do not provide a basis for eliminating his causation
opinion.
IV. CONCLUSION
For these reasons, I find that Dr. Crickard’s causation opinion meets the tests set
forth in Daubert. The Defendant’s motion to bar that opinion [#44] is accordingly
DENIED.
ENTERED: March 7, 2013
s/ John A. Gorman
JOHN A. GORMAN
UNITED STATES MAGISTRATE JUDGE

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