Jorn v. Union Pacific Railroad Company
Filing
50
MEMORANDUM AND ORDER - The defendant's motion for summary judgment (Filing No. 29 ) is denied. The defendant's motions in limine (Filing Nos. 31 and 33 ) are denied. Ordered by Senior Judge Joseph F. Bataillon. (LKO)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
RICK JORN,
Plaintiff,
8:18CV138
vs.
MEMORANDUM AND ORDER
UNION PACIFIC RAILROAD COMPANY,
Defendant.
This matter is before the Court on defendant Union Pacific Railroad Company’s
(“U.P.” or “the Railroad”) motion for summary judgment, Filing No. 29, and its motions in
limine to exclude the testimony of Dr. Ernest Chiodo and Dr. Hernando Perez, under
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), Filing Nos. 31 and 33. This
is an action brought under the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. § 51
et seq., and the Federal Locomotive Inspection Act, 49 U.S.C. § 20701 et seq., for injuries
suffered as a result of alleged toxic exposure. Jorn alleges his exposure to multiple toxic
substances while working for U.P. and its predecessors caused him to develop renal
cancer.
I.
BACKGROUND
In its motions in limine, U.P. does not challenge the experts’ qualifications, but
contends the experts’ methodology is not scientifically reliable. It also argues that Dr.
Perez’s testimony is speculative. It next contends that if either expert’s testimony is
excluded, the plaintiff cannot prove causation and U.P. is entitled to summary judgment.
In response, Jorn argues that the defendant’s Daubert challenge goes to the weight, not
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the admissibility, of the evidence, and contends that genuine issues of fact preclude
summary judgment.
As relevant herein, and for purposes of the motion for summary judgment, the
parties agree to certain facts. Filing No. 30, U.P. brief at 2-8; Filing No. 44, plaintiff’s
response at 4-7; Filing No. 46, U.P. reply brief at 3-5. The following facts are gleaned
from the parties’ agreed submissions and from the record. The plaintiff, Rick Jorn, began
his railroad employment in 1976 as a brakeman for Missouri Pacific Railroad, U.P.’s
predecessor. He became employed as a conductor in 1978 and continued to work in that
position until 2017, when his railroad employment ended. Jorn has smoked one pack of
cigarettes a day since 1978. In 2015, Jorn was diagnosed with chromophobe renal cell
carcinoma.
He sued Union Pacific under the FELA, alleging he was exposed to various “toxic
substances” while working for U.P., and these exposures caused him to develop renal
cancer. The parties stipulate that the issues of exposure and causation in this case are
limited to diesel exhaust and its subcomponents. Jorn has smoked one pack of cigarettes
each day since 1978.
The plaintiff designated Dr. Chiodo to testify as to the nature and extent of the
plaintiff’s injuries and general and specific causation. Filing No. 35-2, Ex. 2, plaintiff’s
expert disclosures. The record shows that Dr. Ernest Chiodo received an M.D. degree
and a J.D. degree from Wayne State University. Filing No. 43-2, Ex. 2, Dr. Chiodo
Curriculum Vitae (“C.V.”) at 2. He also has a master’s degree in Public Health from
Harvard University School of Public Health, a master’s degree in Biomedical Engineering
from Wayne State University College of Engineering and School of Medicine, a Master of
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Science degree in Threat Response Management from the University of Chicago, and a
Master of Science degree in Occupational and Environmental Health Sciences with a
specialization in Industrial Toxicology from Wayne State University. Id. at 1-2. He has
also obtained an M.B.A. from the University of Chicago and a Master of Science in
Evidence-Based Health Care from the University of Oxford. Id. Dr. Chiodo is board
certified in internal medicine, preventative medicine in occupational medicine,
preventative medicine in public health, and is a toxicologist and certified industrial
hygienist. Id. at 5. He is licensed to practice as a physician in Michigan, Illinois, Florida,
and New York. Id. at 4. Dr. Chiodo has had numerous professorships and faculty
appointments at Wayne State University, Wayne State University School of Medicine,
Loyola University Chicago Law School, and John Marshall Law School. Id. at 6.
Dr. Chiodo interviewed Jorn and reviewed the complaint, answers to
interrogatories, and medical bills and records, and Dr. Hernando Perez’s industrial
hygiene report. See Filing No. 43-3, Ex. 3, Dr. Chiodo Report (“Rep’t”) at 2-3. Dr. Chiodo
testified that he relied on his own industrial hygiene knowledge and experience but
deferred to Dr. Perez’s exposure opinion. See Filing No. 43-4, Ex. 4, Deposition of Dr.
Ernest Chiodo (“Dr. Chiodo Dep.”) at 5. Dr. Chiodo also relied on general knowledge and
on peer-reviewed literature in formulating his expert opinion on general causation. Id. at
29-31, 34-35, 40.
Dr. Chiodo described his methodology as consistent with that set out in the Federal
Judicial Center’s reference manual.
Id. at 23.
He testified he considered Jorn’s
exposures and performed a differential diagnosis in rendering his opinion. Id. at 9, 37,
47. In doing so, Dr. Chiodo “ruled in” plaintiff’s cigarette smoking and employment with
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the railroad as likely causes of Plaintiff’s chromophobe renal cell carcinoma. Id. at 13,
41, 46. He ruled out obesity and family history as potential causes. Id. at 12-13. He
stated that both cigarette smoking and diesel exhaust could independently be the sole
cause of the cancer, if it were the only exposure, but did not do any apportionment. Id.
at 47. In his report, Dr. Chiodo opined “to a reasonable degree of medical and scientific
certainty that the exposures experienced by Mr. Rick Jorn during the course of his railroad
employment were a significant contributing factor in his development of renal cancer.”
Filing No. 43-3, Ex. 3, Dr. Chiodo Rep’t at 9. Dr Chiodo also testified that Jorn’s significant
ongoing exposure to diesel exhaust and its component benzene was sufficient during the
course of his railroad employment to have caused his renal cancer. Filing No. 43-4, Ex.
4, Dr. Chiodo Dep. at 36-37, 40, 53. Dr. Chiodo declined to apportion between the various
causes. Id. at 10, 47. He stated the apportionment was a task for the jury in an FELA
case. Id. at 10.
Jorn designated Dr. Hernando Perez, Ph.D., MPH, CIH, CSP, to testify in
connection with Jorn’s working conditions, notice and foreseeability of hazards including
exposure to carcinogens and the railroad industry’s knowledge of those hazards.
Filing
No. 41-3, Ex. 3, Dr. Perez Rep’t at 1; Filing No. 35-2, Ex. 2, plaintiff’s expert disclosures
at 1. Dr. Hernando Perez is an industrial hygiene and occupational health expert who
opined on Jorn’s workplace exposure to diesel exhaust and its component, benzene.
Filing No. 41-3, Ex. 3, Dr. Perez Rep’t at 3-11. Dr. Perez has a Ph.D. in industrial hygiene
from Purdue University and a Master of Public Health degree in environmental and
occupational health from Emory University. Filing No. 41-2, Ex. 2, Dr. Perez C.V. at 1.
He is certified in the comprehensive practice of industrial hygiene by the American Board
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of Industrial Hygiene and in the practice of safety by the Board of Certified Safety
Professionals.
Id.
He has been employed as Lead Industrial Hygienist and
Environmental Hygiene Program Manager for United States Citizenship and Immigration
Services (“USCIS”) in the United States Department of Homeland Security since 2015.
Id. at 2. In that capacity, he is responsible for coordination and performance of industrial
hygiene activities at all USCIS facilities across the United States. Id. He was employed
as full time faculty at the Drexel University School of Public Health from 2004 to 2014 and
as Director of the Industrial Hygiene Consulting Service at the School from 2006 to 2014.
Id.
Dr. Perez interviewed Jorn, reviewed Jorn’s deposition, reviewed pleadings and
materials supplied by plaintiff’s counsel from this and other cases and performed a
literature review. Filing No. 41-3, Ex. 3, Dr. Perez Rep’t at 1; Filing No. 41-4, Ex. 4,
Deposition of Dr. Hernando Perez (“Dr. Perez Dep.”) at 6-13. He reviewed various journal
articles, standard textbooks, and information from OSHA, NIOSH, EPA, ATSDR, MSHA,
National Cancer Institute (NCI), National Institute of Environmental Health Sciences
(NIEHS), and International Agency for Research on Cancer (IARC). Filing No. 41-3, Ex.
3, Dr. Perez Rep’t at 1. He relied, in particular, on data in a study of diesel exhaust
exposure.
Filing No. 41-4, Ex. 4, Dr. Perez Dep. at 46, 52-53; see Filing No. 41-5,
National Institutes of Health (“NIH”), Anjoeka Pronk Author Manuscript; Filing No. 35-11,
Ex. 11, Pronk study. Dr. Perez based the qualitative intensity of the diesel exposure on
the plaintiff’s testimony, in part. Filing No. 41-4, Ex. 4, Dr. Perez Dep. at 37, 47.
The parties agree that Dr. Perez has never written a peer-reviewed study on diesel
exhaust. Dr. Perez has never been in a railyard, and he is unfamiliar with the railyards
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where the plaintiff worked. Dr. Perez did not perform any mathematical modeling in
connection with his exposure calculations.
Dr. Perez testified he performed a
retrospective exposure assessment to determine the plaintiff’s exposure to diesel
exhaust.
Filing No. 41-4, Ex. 4, Dr. Perez Dep. at 33.
Dr. Perez’s retrospective
assessment relies on a Plaintiff’s own self-reports of his job duties and on the data
provided by U.P. See id. at 23, 39-42, 50, 64-65. The parties agree that Dr. Perez did
not report having contacted any other Union Pacific employees to corroborate Plaintiff’s
memory regarding his alleged occupational exposures. Dr. Perez did not know the makes
or model of any locomotives that the plaintiff worked in. Filing No. 41-4, Ex. 4, Dr. Perez
Dep. at 72.
Dr. Perez compared the plaintiff’s self-reports and the dynamics of diesel exhaust
in the environment with exposure categories taken from A. Pronk, et al., Occupational
Exposure to Diesel Engine Exhaust: A Literature Review (“Pronk study”), J. Exposure Sci.
& Envtl. Epidemiology (2009). Filing No. 41-3, Dr. Perez Report at 10 n.1, 14; Filing No.
35-11, Ex. 11, Pronk study. The Pronk study classifies levels of exposure to elemental
carbon concentrations as high, intermediate, and low based generally on the context of
enclosure—enclosed underground sites with heavy equipment, above ground semienclosed areas with smaller equipment, and outdoors or enclosed spaces separate from
the exhaust source, respectively. Filing No. 41-3, Dr. Perez Rep’t at 10; Filing No. 41-5,
Pronk Author Manuscript at 9.
Dr. Perez states that Jorn was chronically exposed to diesel exhaust during his
forty-year career with the Railroad. Filing No. 41-3, Dr. Perez Rep’t at 9; Filing No. 41-4,
Dr. Perez Dep. at 45-47. He offers the opinion that Jorn’s “average exposures to diesel
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exhaust while working as a brakeman and conductor on locomotives operating long hood
first or while traveling on trailing locomotives were consistent with the intermediate range,
with episodic excursions into the high range” and on other locomotives, Jorn’s average
exposures to diesel exhaust were “consistent with the low range with excursions into the
intermediate range.” Filing No. 41-3, Dr. Perez Rep’t at 9. The parties agree that Dr.
Perez has no evidence that Jorn ever requested any respiratory protection.
Based on his evaluation, Dr. Perez states that U.P. failed to provide Jorn a
reasonably safe place to work in failing to provide air monitoring or otherwise determine
Jorn’s level of exposure to diesel exhaust; failing to provide Jorn with appropriate personal
protective equipment to prevent or lessen his exposure to diesel exhaust; failing to
implement any administrative or engineering controls to reduce or prevent diesel exhaust
exposure; and failing to provide adequate warnings, training, and information about the
hazards of diesel exhaust. Id. at 19. He further opines that U.P. failed to comply with the
OSHA General Duty Clause, OSHA Act Section 5(a)(1). Id.
In support of its motions, U.P. submits the declaration, expert report, and C.V. of
its own expert, Samuel M. Cohen, M.D., Ph.D. Filing No. 35-15, Ex. 15, Declaration;
Filing No. 35-16, Expert Rep’t; Filing No. 35-17, Ex. 17, C.V. Dr. Cohen questions the
other experts’ methodology and generally disagrees with their opinions. See id.
II.
LAW
A.
Summary Judgment
Summary judgment is appropriate when, viewing the facts and inferences in the
light most favorable to the nonmoving party, “the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material
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fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c);
see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “The movant ‘bears the
initial responsibility of informing the district court of the basis for its motion, and must
identify ‘those portions of [the record] . . . which it believes demonstrate the absence of a
genuine issue of material fact.’” Torgerson v. City of Rochester, 643 F.3d 1031, 1042,
(8th Cir. 2011) (en banc) (quoting Celotex, 477 U.S. at 323). If the movant does so, “the
nonmovant must respond by submitting evidentiary materials that set out ‘specific facts
showing that there is a genuine issue for trial.’” Id. (quoting Celotex, 477 U.S. at 324).
The evidence must be viewed in the light most favorable to the nonmoving party,
giving the nonmoving party the benefit of all reasonable inferences. Kenney v. Swift
Transp., Inc., 347 F.3d 1041, 1044 (8th Cir. 2003). If “reasonable minds could differ as
to the import of the evidence,” summary judgment should not be granted. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). “In ruling on a motion for summary
judgment, a court must not weigh evidence or make credibility determinations.” Id.
B.
Expert Testimony
Federal Rule of Evidence 702 governs the admissibility of expert testimony and
requires that: (1) the evidence must be based on scientific, technical or other specialized
knowledge that is useful to the finder of fact in deciding the ultimate issue of fact; (2) the
witness must have sufficient expertise to assist the trier of fact; and (3) the evidence must
be reliable or trustworthy. Kudabeck v. Kroger Co., 338 F.3d 856, 859 (8th Cir. 2003).
When faced with a proffer of expert testimony, trial judges are charged with the
“gatekeeping” responsibility of ensuring that all expert evidence admitted is both relevant
and reliable. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999); see Daubert, 509
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U.S. at 589. Testimony is relevant if it is “sufficiently tied to the facts of the case that it
will aid the jury in resolving a factual dispute.” Daubert, 509 U.S. at 591. Expert testimony
assists the trier of fact when it provides information beyond the common knowledge of
the trier of fact. Kudabeck, 338 F.3d at 860. To satisfy the reliability requirement, the
party offering the expert testimony must show by a preponderance of the evidence “that
the methodology underlying [the expert’s] conclusions is scientifically valid.” Barrett v.
Rhodia, Inc., 606 F.3d 975, 980 (8th Cir. 2010) (citations omitted).
In making the reliability determination, the court may consider:
(1) whether the theory or technique can be or has been tested; (2) whether
the theory or technique has been subjected to peer review or publication;
(3) whether the theory or technique has a known or potential error rate and
standards controlling the technique’s operations; and (4) whether the theory
or technique is generally accepted in the scientific community.
Russell v. Whirlpool Corp., 702 F.3d 450, 456 (8th Cir. 2012). Additional factors to
consider include: “‘whether the expertise was developed for litigation or naturally flowed
from the expert’s research; whether the proposed expert ruled out other alternative
explanations; and whether the proposed expert sufficiently connected the proposed
testimony with the facts of the case.’” Polski v. Quigley Corp., 538 F.3d 836, 839 (8th Cir.
2008) (quoting Sappington v. Skyjack, Inc., 512 F.3d 440, 449 (8th Cir. 2008)). “This
evidentiary inquiry is meant to be flexible and fact specific, and a court should use, adapt,
or reject” these factors as the particular case demands. Whirlpool, 702 F.3d at 456
(citation omitted).
When making the reliability inquiry, the court should focus on
“principles and methodology, not on the conclusions that they generate.” Kuhn v. Wyeth,
Inc., 686 F.3d 618, 625 (8th Cir. 2012). However, “conclusions and methodology are not
entirely distinct from one another. Trained experts commonly extrapolate from existing
data.” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).
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The proponent of expert testimony bears the burden of providing admissibility by
a preponderance of the evidence. Lauzon v. Senco Prods., 270 F.3d 681, 686 (8th Cir.
2001). “When the application of a scientific methodology is challenged as unreliable
under Daubert and the methodology itself is sufficiently reliable, outright exclusion of the
evidence is warranted only if the methodology ‘was so altered by a deficient application
as to skew the methodology itself.’” United States v. Gipson, 383 F.3d 689, 697 (8th Cir.
2004) (emphasis in original) (quoting United States v. Martinez, 3 F.3d 1191, 1198 (8th
Cir. 1993)). Generally, deficiencies in application go to the weight of the evidence, not its
admissibility. See id. “‘As a general rule, the factual basis of an expert opinion goes to
the credibility of the testimony, not the admissibility, and it is up to the opposing party to
examine the factual basis for the opinion in cross-examination.’” Bonner v. ISP Techs.,
Inc., 259 F.3d 924, 929 (8th Cir. 2001) (quoting Hose v. Chicago Nw. Transp. Co., 70
F.3d 968, 976 (8th Cir. 1995)). “Vigorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof are the traditional and appropriate
means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596.
“[C]ases are legion” in the Eighth Circuit that “call for the liberal admission of expert
testimony.” Johnson v. Mead Johnson & Co., 754 F.3d 557, 562 (8th Cir. 2014). “As long
as the expert's scientific testimony rests upon ‘good grounds, based on what is known’ it
should be tested by the adversary process with competing expert testimony and cross–
examination, rather than excluded by the court at the outset.” Id. (quoting Daubert, 509
U.S. at 590). District courts are “not to weigh or assess the correctness of competing
expert opinions.” Id. The jury, not the trial court, should be the one to ‘decide among the
conflicting views of different experts.’” Kumho Tire Co., 526 U.S. at 153. Medical experts
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often disagree on diagnosis and causation and questions of conflicting evidence must be
left for the jury's determination. Hose, 70 F.3d at 976.
C.
The FELA
Railroads are liable in damages for an employee's “injury or death resulting in
whole or in part from the Railroad’s negligence.” 45 U.S.C. § 51. Appraising negligence
under FELA “turns on principles of common law . . . , subject to such qualifications [that]
Congress” introduces. Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 543-44 (1994)
(noting the qualifications are the modification or abrogation of several common-law
defenses to liability, including contributory negligence and assumption of risk). The FELA
is to be liberally construed, but it is not a workers' compensation statute, and the basis of
liability is “negligence, not the fact that injuries occur.” Id. at 543.
The FELA imposes upon employers a continuous duty to provide a reasonably
safe place to work. Cowden v. BNSF Ry. Co., 690 F.3d 884, 889 (8th Cir. 2012). The
railroad’s duty to provide a safe workplace is a duty of reasonable care. CSX Transp.,
Inc. v. McBride, 564 U.S. 685, 703 (2011). However, “a relaxed standard of causation
applies under FELA.” Gottshall, 512 U.S. at 543; see Holloway v. Union Pac. R.R. Co.,
762 F. App'x 350, 352 (8th Cir. 2019). The test is simply whether the railroad’s negligence
played a part—no matter how small—in bringing about the injury. McBride, 564 U.S. at
705; see also Paul v. Mo. Pac. R.R. Co., 963 F.2d 1058, 1061 (8th Cir. 1992)(stating that
“[u]nder FELA, the plaintiff carries only a slight burden on causation.”). In FELA cases,
the negligence of the defendant need not be the sole cause or whole cause of the
plaintiff's injuries. Claar v. Burlington N.R.R. Co., 29 F.3d 499, 503 (9th Cir. 1994).
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Despite the lower causation standard under FELA, a plaintiff must still demonstrate
some causal connection between a defendant's negligence and his or her injuries.
Brooks v. Union Pac. R.R. Co., 620 F.3d 896, 899 (8th Cir. 2010). In order to avoid
summary judgment, a FELA plaintiff is required to produce admissible evidence that the
railroad’s negligence played a part in causing his alleged injury. Id. If an injury has “no
obvious origin, ‘expert testimony is necessary to establish even that small quantum of
causation required by FELA.’” Brooks, 620 F.3d at 899 (quoting Claar, 29 F.3d at 504);
see also Mayhew v. Bell S.S. Co., 917 F.2d 961, 963 (6th Cir. 1990) (“[A]lthough a[n
FELA] plaintiff need not make a showing that the employer's negligence was the sole
cause, there must be a sufficient showing (i.e. more than a possibility) that a causal
relation existed.”).
“The standard of causation under FELA and the standards for admission of expert
testimony under the Federal Rules of Evidence are distinct issues and do not affect one
another.” Claar, 29 F.3d at 503. Daubert's standards for determining the admissibility of
expert testimony apply regardless of whether the plaintiff's burden to prove causation is
reduced. Wills v. Amerada Hess Corp., 379 F.3d 32, 47 (2d Cir. 2004) (involving Jones
Act and stating that “the standards for determining the reliability and credibility of expert
testimony are not altered merely because the burden of proof is relaxed”); see also Taylor
v. Consol. Rail Corp., No. 96-3579, 114 F.3d 1189 (Table), 1997 WL 321142, at *6–7 (6th
Cir. June 11, 1997) (noting it is well established that the admissibility of expert testimony
is controlled by Daubert, even in FELA cases); Hose, 70 F.3d at 976 (applying Daubert
in an FELA case).
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A differential diagnosis is “an alternative method of establishing causation” that
may be utilized where the particular facts of the case do not lend themselves to
quantitative analysis.
Hardyman v. Norfolk & W. Ry. Co., 243 F.3d 255, 261 (6th Cir.
2001) (rejecting defendant railroad’s argument that the only way the plaintiff could
establish causation would be with the proffer of a known “dose/response relationship” or
“threshold phenomenon[,]”). “In performing a differential diagnosis, a physician begins by
‘ruling in’ all scientifically plausible causes of the plaintiff's injury. The physician then
‘rules out’ the least plausible causes of injury until the most likely cause remains.”
Glastetter v. Novartis Pharm. Corp., 252 F.3d 986, 989 (8th Cir. 2001) (involving statelaw products liability action and finding an FDA decision to remove a drug from
marketplace was “unreliable proof of medical causation . . . because the FDA employs a
reduced standard (vis-à-vis tort liability)” of proof on causation).
In the Eighth Circuit, differential diagnoses in general pass muster under the four
considerations identified in Daubert. Johnson, 754 F.3d at 564 (agreeing with other
circuits that a differential diagnosis is a tested methodology, has been subjected to peer
review/publication, does not frequently lead to incorrect results, and is generally accepted
in the medical community). In fact, the Eighth Circuit has “termed an opinion [based on
a differential diagnosis] ‘presumptively admissible,’ noting that a district court may not
exclude such expert testimony unless the diagnoses are ‘scientifically invalid.’” Id. Also,
the Eighth Circuit has “consistently ruled that experts are not required to rule out all
possible causes when performing the differential etiology analysis.” Id. at 563. In the
context of the FELA, a plaintiff need not necessarily prove the levels of a toxin to which
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he or she was exposed.1
See Hardyman, 243 F.3d at 262-66 (reversing trial court's
ruling that plaintiff could establish causation only by showing a “dose/response
relationship” between exposure levels and risk of disease and finding that an expert need
not possess specific dosage information in order to testify about causation in an FELA
case); Harbin v. Burlington N.R.R. Co., 921 F.2d 129, 132 (7th Cir. 1990) (finding a
plaintiff need not identify the specific composition and density of soot present in his work
environment to survive a summary judgment—although “expert testimony documenting
the hazards posed by the presence of so many parts per million of soot in the air would
certainly enhance [the plaintiff’s] case, it is not essential under the regime of the [FELA].”);
Higgins v. Consol. Rail Corp., No. 1:06-CV-689 GLS/DRH, 2008 WL 5054224, at *4
(N.D.N.Y. Nov. 21, 2008) (finding an issue of fact on causation even in the absence of
expert testimony, and stating that, and stating that, due to the slight burden of proof in
FELA actions, a jury may make inferences in an FELA case that it otherwise could not);
Sunnycalb v. CSX Transp., Inc., 926 F. Supp. 2d 988, 995-96 (S.D. Ohio 2013) (finding
that the plaintiff’s inability to establish a precise level of chemical exposure did not bar
In contrast, under general negligence principles, in a toxic tort case, “at a minimum . . . there must be
evidence from which the factfinder can conclude that the plaintiff was exposed to levels of [the toxic agent
at issue] that are known to cause the kind of harm that the plaintiff claims to have suffered." Mattis v. Carlon
Elec. Prods., 295 F.3d 856, 860 (8th Cir. 2002) (addressing causation in the context ordinary negligence
and a proximate cause standard). To prove causation in a toxic tort case, a plaintiff must show both that
the alleged toxin is capable of causing injuries like that suffered by the plaintiff in persons subjected to the
same level of exposure as the plaintiff, and that the toxin was the cause of the plaintiff's injury. Wright v.
Willamette Indus., 91 F.3d 1105, 1106 (8th Cir. 1996) (under Arkansas law, applying a proximate cause
standard that required evidence from which a reasonable person could conclude that a defendant's
emission had probably caused harm in order to recover). However, even under common-law negligence
standards, a plaintiff does not need to produce a “mathematically precise table equating levels of exposure
with levels of harm” to show that he was exposed to a toxic level of a chemical, but must only present
“evidence from which a reasonable person could conclude that his exposure probably caused his injuries.”
Bonner, 259 F.3d at 928 (emphasis added). “[W]hile precise information concerning the exposure
necessary to cause specific harm to humans and exact details pertaining to the plaintiff's exposure are
beneficial, [it must be recognized that] such evidence is not always available, or necessary, . . . and need
not invariably provide the basis for an expert's opinion on causation.” Westberry v. Gislaved Gummi AB,
178 F.3d 257, 264 (4th Cir. 1999) (involving a strict liability, breach of warranty, and negligence action ).
1
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recovery under FELA—the evidence was sufficient for the jury to draw the reasonable
inference that CSX's negligence played a part in plaintiff's injuries); Payne v. CSX
Transp., Inc., 467 S.W.3d 413, 457 (Tenn. 2015) (“[S]tated simply, the Plaintiff's experts
were not required to establish ‘a dose exposure above a certain amount’ before they could
testify about causation.”); and Russell v. Ill. Cent. R.R., No. W2013-02453-COA-R3-CV,
2015 WL 4039982, *2-*5 (Tenn. Ct. App. 2015) (rejecting defendant railroad’s contention
that an expert’s opinions were not reliable because the differential diagnoses on which
they were based “did not consider the dose, frequency or duration” of the plaintiff’s
exposure to carcinogens at work).
III.
DISCUSSION
The Court first finds the Railroad’s motions to exclude the testimony of Dr. Chiodo
and Dr. Perez should be denied. Both experts are clearly qualified to render their opinions
and their opinions are relevant and reliable enough to pass muster under Rule 702 and
Daubert. The Court rejects the defendant’s contention that Dr. Chiodo’s testimony is not
supported by scientific literature or a reliable methodology. Dr. Chiodo testified that he
relied on the plaintiff’s descriptions of his employment in the context of peer-reviewed
studies of exposure involving railroad workers and similar occupations. He based his
testimony on an interview with the plaintiff, who described his work and his exposures,
review of certain pleadings, review of the plaintiff’s medical records, and on his own
extensive knowledge, experience, and expertise in the field of occupational medicine and
industrial hygiene.
He performed a differential diagnosis or etiology based on the plaintiff’s
statements, corroborated by a review of the scientific literature. The differential diagnosis
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is a tested methodology that has been subjected to peer review/publication, has been
shown not to frequently lead to incorrect results, and is accepted in the medical
community. His finding that Jorn’s chronic exposure to diesel exhaust was a significant
factor in the development of renal cancer has an adequate factual basis. Dr. Chiodo
properly extrapolated his opinion from the facts and scientific literature. Notably, Dr.
Chiodo, who is also an attorney, testified that in an FELA case, he is not required to
determine which of several potential causes was most likely to cause the plaintiff’s renal
cancer, characterizing that determination as a matter for resolution by a judge or jury.
The Court agrees and finds Dr. Chiodo’s testimony is sufficient with respect to specific
and general causation.
Dr. Perez’s testimony is similarly sufficient to withstand a Daubert challenge. The
defendant’s criticisms go to the weight, rather than the admissibility of his testimony. Dr.
Perez interviewed the plaintiff and conducted a literature review. His methodology was
reasonable in light of his familiarity with industrial hygiene standards.
He has the
qualifications and expertise to express an opinion on Jorn’s working conditions and the
standard of care.
Both experts’ testimony will assist the trier of fact in determining the Railroad’s
potential liability in light of the requisite causation standard. The opinion testimony is
relevant and reliable to show that U.P.’s allegedly negligent conduct in exposing Jorn to
toxins over the course of forty years of employment played a part in causing Jorn’s renal
cancer. The lack of quantitative data is not fatal to the admissibility of the experts’
opinions since the lack of such data is typical in epidemiological cases. Any shortcomings
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in the experts’ evaluations are properly the subject of cross-examination and do not call
for exclusion of the testimony.
U.P. mistakenly relies on caselaw involving toxic tort actions, without recognizing
that this case is a toxic tort case under the FELA. The defendant’s position would have
more force if the case required a showing of proximate cause. If the plaintiff had to prove
the exposure proximately caused the injury, the experts’ testimony would be less relevant
and would not necessarily be sufficiently tied to the facts of the case to assist the jury.
Under the FELA, however, the plaintiff need not demonstrate the railroad’s conduct was
the proximate cause, but only that it played a part—no matter how small—in the injury.
The Court finds the experts’ opinions are tied to the facts of the case and are
supported by accepted scientific theories. The record shows the experts based their
opinions on medical records, peer-reviewed studies, and evidence of exposures that
covered a long period of time. They also relied on their education and experience in the
fields of statistics, toxicology, and industrial hygiene. The defendant’s criticisms go to the
weight, rather than the admissibility of the testimony.
Moreover, the Court finds the defendant’s reliance on the exclusion of Dr. Chiodo’s
testimony in other cases in this district is unavailing. See Harder v. Union Pac. R.R. Co.,
No. 8:18CV58, 2020 WL 469880, at *1 (D. Neb. Jan. 29, 2020) (excluding Dr. Chiodo’s
testimony because he was unaware of the plaintiff’s length of exposure, concentration of
exposure, and the atmosphere of exposure), appeal docketed, No. 20-1417 (8th Cir. Mar.
2, 2020); McLaughlin v. BNSF Ry. Co., No. 4:18-CV-3047, 2020 WL 641729, at *6 (D.
Neb. Feb. 11, 2020) (excluding the causation
testimony of Mark Wilkenfeld, M.D.,
because the expert failed to adequately rule in diesel exhaust as a cause, however small,
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of the carman plaintiff’s lung cancer and failed to adequately rule out thirty-year, packand-a-half-a-day cigarette smoking as the sole cause of the lung cancer), appeal
docketed, No. 20-1494 (8th Cir. Mar. 10, 2020); West v. Union Pac. R.R. Co., No.
8:17CV36, 2020 WL 531994, at *5 (D. Neb. Feb. 3, 2020) (excluding the causation
testimony of Dr. Chiodo as speculation based only on the job the plaintiff held, without
reliance on the testimony of an industrial hygiene expert or other facts or data), appeal
docketed, No. 20-1422 (8th Cir. Mar. 4, 2020).
This Court is not bound by those
decisions, they involved different facts and evidence, and they have been appealed.
Also, Dr. Chiodo’s and Dr. Perez’s testimony has been found to satisfy Daubert in other
cases in this district and in an FELA case in another jurisdiction. See Ranney v. Union
Pac. R.R. Co., No. 8:18cv59, Filing No. 52 (D. Neb. June 5, 2020); Lemburger v. Union
Pac. R.R. Co., No. 18cv64, Filing No. 74 (D. Neb. May 29, 2020); Minic v. BNSF Ry. Co.,
No.18-01931, Filing No. 45, Courtroom Minutes (D. Colo. Feb. 26, 2020).
IV.
CONCLUSION
In conclusion, the Court’s review of the record shows that the scientific testimony
at issue rests on “appropriate validation—i.e., ‘good grounds’, based on what is known,”
Daubert, 509 U.S. 590, and “should be tested by the adversary process with competing
expert testimony and cross-examination, rather than excluded by the court at the outset.”
Johnson, 754 F.3d at 562. The experts’ opinion are not so “fundamentally unsupported
that [the testimony] can offer no assistance to the jury.” Bonner, 259 F.3d at 929–30.
The Court finds the methodology employed by the plaintiff’s experts is scientifically
valid, can properly be applied to the facts of this case, and is reliable enough to assist the
trier of fact. This is not the sort of junk science that Daubert addresses.
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With the admission of the expert testimony, there is an issue of fact for the jury on
the exposures and whether the exposures contributed to Jorn’s renal cancer. U.P. has
not shown as a matter of law that Jorn cannot establish that U.P.’s negligence “played a
part” in his cancer. Accordingly, the Court finds the defendant’s motion for summary
judgment should also be denied.
IT IS ORDERED:
1.
The defendant’s motion for summary judgment (Filing No. 29) is denied.
2.
The defendant’s motions in limine (Filing Nos. 31 and 33) are denied.
Dated this 22nd day of October, 2020.
BY THE COURT:
s/ Joseph F. Bataillon
Senior United States District Judge
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