Cleaver v. Union Pacific Railroad Company
MEMORANDUM AND ORDER - The defendant's motion in limine to exclude Dr. Hernando Perez's testimony (Filing No. 46 ) is denied. The defendant's motion in limine to exclude Dr. Theron Blickenstaff's testimony (Filing No. 44 ) is denied. The defendant's motion for summary judgment (Filing No. 42 ) is denied. Ordered by Senior Judge Joseph F. Bataillon. (LKO)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
WESLEY A. CLEAVER,
UNION PACIFIC RAILROAD COMPANY,
MEMORANDUM AND ORDER
This matter is before the Court on defendant Union Pacific Railroad Company’s
(“U.P.” to “the Railroad”) motion for summary judgment, Filing No. 42, and motions in
limine, Filing Nos. 44 and 46.
This is an action brought pursuant to the Federal
Employers’ Liability Act (“FELA”), 45 U.S.C. § 51 et seq. The plaintiff alleges his exposure
to various toxic substances while working for the Railroad caused him to develop mantle
cell lymphoma, a subtype of non-Hodgkin’s lymphoma.
U.P. moves in limine to exclude the testimony of the plaintiff’s two experts:
Theron Blickenstaff, M.D., M.P.H., and Dr. Hernando Perez, Ph.D., M.P.H. under Daubert
v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). It asserts that the opinions disclosed
by both experts lack a scientifically valid basis, are not based on sufficient facts and data,
were reached without scientifically reliable methods and principles, and lack reliable
scientific reasoning, methodology, and foundation as required by Fed. R. Evid. 702 and
Daubert, 509 U.S. at 591. The defendant also moves for summary judgment, arguing
that if the testimony of the plaintiff's experts is excluded, the plaintiff will be unable to
establish the level of Cleaver’s toxic exposure or causation and will be unable to prove
that the Railroad is liable under the FELA. The plaintiff argues that the defendant’s
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Daubert challenge goes to the weight, not the admissibility, of the evidence and contends
that genuine issues of material fact preclude summary judgment.
The following facts are gleaned from the parties’ respective statements of
undisputed facts and from evidence of record.
Filing No. 43, Defendant’s Summary
Judgment Brief at 3-11; Filing No. 59, Plaintiff’s Response Brief at 3-10; Filing Nos. 48
and 60, Appendices of Evidence. The plaintiff worked for Union Pacific from 1975 until
2014. In November 2014, at age 58, he was diagnosed with mantle cell lymphoma. In
2015, the plaintiff took medical disability retirement. Before his mantle cell lymphoma
diagnosis, Cleaver’s medical history included hypothyroidism, hypertension, gout,
obesity, and Type 2 diabetes mellitus. Cleaver was a maintenance-of-way employee for
Union Pacific. For the first five to six months of his employment, he worked as a laborer
on a tie gang. After that period, he was a track machine operator. He performed track
construction in the warmer months and snow removal in the winters. From 1991 to the
end of his career, Cleaver operated a locomotive crane, which had an enclosed cab with
air conditioning and heating. Before 1991, the plaintiff primarily operated a tamper, a
ballast regulator, and occasionally a speed swing. Except for a short period in 1975 when
he first started as a machine operator, every tamper he operated had an enclosed cab.
In the mid-1980s, the plaintiff was fitted for a respirator. He always carried his respirator
and wore it when the work generated dust or when the rules otherwise required it.
Dr. Hernando Perez is an industrial hygienist who was retained by the plaintiff to
testify, generally, as to notice and foreseeability of the hazards associated with the
plaintiff’s employment and the railroad industry’s knowledge of the hazards of exposure
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to toxins.1 Filing No. 48-3, Ex. 3, Expert Disclosure. 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. 48-6, Ex. 6, Dr. Perez Report
(“Rep’t”) at 2. He is certified in the comprehensive practice of industrial hygiene by the
American Board 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.
In forming his opinion, Dr. Perez interviewed the plaintiff, reviewed his deposition
transcript and reviewed U.P. air sampling data. Filing No. 60, Ex. 2, Dr. Perez Rep’t at
1-2; id., Appendix A, Sampling Data Summary Analysis; id., Supplemental Rep’t at 1. He
reviewed various journal articles, books, standard textbooks, relevant peer-reviewed
scientific literature, and OSHA, NIOSH, EPA, ATSDR, MSHA, National Cancer Institute
(NCI), National Institute of Environmental Health Sciences (NIEHS), and International
Agency for Research on Cancer (IARC) websites. Id.
The parties agree that Dr. Perez has never taken any measurements of diesel
exhaust as part of his litigation consulting and has never observed machine operators
Dr. Perez’s opinions are limited to the plaintiff’s alleged exposure to diesel exhaust.
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performing the plaintiff’s tasks in the field. Dr. Perez testified he knows that the plaintiff’s
work areas were one to two miles in length, and that proximity to a substance and ambient
air conditions are factors relevant to determining exposure to the substance. Dr. Perez
also knows that some of the plaintiff’s work environments did not have significant, or even
detectable, exposures to diesel exhaust. Dr. Perez does not know the exact type of diesel
fuel used in the machines that the plaintiff operated, however, Dr. Perez reviewed the
Materials Safety Data Sheets provided by the Railroad regarding the diesel fuel it had
purchased. Filing No. 60, Exhibit 3, Deposition of Dr. Hernando Perez (“Dr. Perez Dep.”)
Dr. Perez stated that working in an enclosed cab reduces a machine operator’s
potential exposure to diesel exhaust. Dr. Perez acknowledges that the machines the
plaintiff primarily operated—tampers, ballast regulators, speed swings, and locomotive
cranes—had enclosed cabs.
Dr. Perez knows that the plaintiff’s fitted respirator
adequately protected him from diesel exhaust when worn properly.
Herbicides are not mentioned in Dr. Perez’s report. He testified that he had not
seen any data that would allow him to opine that the plaintiff was exposed to any particular
type of herbicide.
Based on his evaluation and his education and experience in the field, Dr. Perez
states that U.P. failed to provide a reasonably safe place to work in failing to provide air
monitoring or otherwise determine Cleaver’s level of exposure to diesel exhaust; failing
to provide Cleaver with appropriate training, respiratory personal protective equipment;
or other personal protective equipment to prevent or lessen his exposures to diesel
exhaust or creosote; failing to implement any administrative or engineering controls to
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reduce or prevent diesel exhaust or creosote exposures to Mr. Cleaver; failing to provide
adequate and appropriate warnings, training and information about the hazards of diesel
exhaust or creosote to Mr. Cleaver and failing to comply with the OSHA General Duty
Clause, OSHA Act Section 5(a)(1). Filing No. 60, Ex. 2, Dr. Perez Rep’t at 20. Dr. Perez
concluded that U.P.’s actions fell beneath a reasonable standard of care. Id.
Dr. Theron Blickenstaff was retained by the plaintiff to testify on the nature and
extent of the plaintiff’s injuries, and on general and specific causation. Filing No. 48-3,
Ex. 3, Plaintiff’s Rule 26 Expert Disclosures at 1. Dr. Blickenstaff has an M.D. from the
University of Cincinnati and a Master of Public Health (Epidemiology) degree from the
University of North Carolina. He is Board Certified in General Preventive Medicine and
Occupational Medicine and is a Fellow of the American College of Occupational and
Environmental Medicine. He has thirty-seven years of experience in occupational and
environmental medicine and has consulted on many cases of cancers and other diseases
possibly caused by occupational exposures or environmental conditions, including
exposures to asbestos, particulates, solvents including benzene, coal tar pitch, and many
other known or suspected chemical carcinogens. Filing No. 60, Ex. 4, Dr. Blickenstaff
Rep’t. at 1. He reviewed Cleaver’s deposition, responses to requests for production and
answers to interrogatories, the complaint, and Cleaver’s medical records. Id. at 1. He
also reviewed and relied on Dr. Perez’s report and on IARC publications and monographs
and other studies.
Id. at 2. Dr. Blickenstaff testified that he performed an informal
differential etiology, ruling out family history as a cause of Cleaver’s mantle cell
lymphoma. Filing No. 48-7, Ex. 7, Deposition of Dr. Theron Blickenstaff (“Dr. Blickenstaff
Dep.”) at 89, 96.
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Dr. Blickenstaff testified that the differences between the patterns of the
translocation of chromosomes in mantle cell lymphoma may differ from other subtypes of
non-Hodgkin’s lymphoma, but stated that it is appropriate to consider other types of nonHodgkin’s lymphoma in the context of Mr. Cleaver’s case, considering there is a small
body of research available on that specific subtype. Id. at 74-79. Dr. Blickenstaff testified
he reviewed Dr. Perez’s report and deferred to the industrial hygienist’s assessment as
to the amount of the plaintiff’s exposure to diesel exhaust. Id. at 82-83. Regarding the
plaintiff’s claimed herbicide exposure, Dr. Blickenstaff assumed the plaintiff was exposed
to Roundup (a trade name for glyphosate) based on general knowledge of the use of the
Id. at 84. He also testified that Cleaver reported that he had been told
Roundup was applied. Id. at 9. Dr. Blickenstaff states that in his opinion, to a reasonable
degree of medical certainty, “Mr. Cleaver’s railroad work exposures to diesel
fumes/exhaust, benzene and glyphosate were causally related to his mantle cell
lymphoma.” Filing No. 60, Ex. 4, Blickenstaff Rep’t at 4.
In support of its motions in limine, the Railroad submits the declarations of its
Filing No. 48-9, Ex. 9, Declaration of Christopher M. Long, SC.D,
DABT; Filing No. 48-11, Ex. 11, Declaration of Matthew Lunning, D.O. Those experts
state the plaintiff’s experts’ methodology is scientifically unreliable and express opinions
contrary to those of the plaintiff’s experts. See id.
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
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materials on file, and any affidavits show that there is no genuine issue as to any material
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.
Federal Rule of Evidence 702 governs the admissibility of expert testimony and
requires that: A(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
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and reliable. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999); Daubert, 509 U.S.
at 589. 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.
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.
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). There is no single
requirement for admissibility as long as the proffer indicates that the expert's testimony
and evidence is reliable and relevant. Klingenberg v. Vulcan Ladder USA, LLC, 936 F.3d
824, 829 (8th Cir. 2018).
“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.,
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Inc., 259 F.3d 924, 929 (8th Cir. 2001) (quoting Hose v. Chicago Nw. Transp. Co., 70
F.3d 968, 976 (8th Cir. 1995)).
“[C]ases are legion” in the Eighth Circuit that “call for the liberal admission of expert
testimony.” Johnson v. Mead Johnson & Co., LLC, 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). “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.
District courts are “not to weigh or assess the correctness of competing expert
Id. The jury, not the trial court, should be the one to ‘decide among the
conflicting views of different experts.’” Kumho Tire, 526 U.S. at 153. Medical experts
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.
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]
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
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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.2 Claar v. Burlington N.R.R. Co., 29 F.3d 499, 503 (9th Cir. 1994).
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
In contrast, “[t]o establish causation in a common law negligence action, a plaintiff generally must show
that the defendant's conduct was a ‘substantial factor in bringing about the harm.’” Tufariello v. Long Island
R.R. Co., 458 F.3d 80, 87 (2d Cir. 2006) (quoting Restatement 2d of Torts § 431(a)). In a toxic tort case
under general negligence principles, a plaintiff must show proximate cause, presenting evidence from which
a reasonable person could conclude that a defendant's toxic emission had probably caused harm in order
to recover). Wright v. Willamette Indus., 91 F.3d 1105, 1106 (8th Cir. 1996) (applying Arkansas law).
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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 [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.
A differential diagnosis or etiology is “an alternative method of establishing
causation,” one which may be utilized where the particular facts of the case do not lend
themselves to quantitative analysis.3 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). In the
Eighth Circuit, differential diagnoses in general pass muster under Daubert. Johnson,
754 F.3d at 564 (finding an opinion based on a differential diagnosis “presumptively
admissible,” and stating that a district court may not exclude such expert testimony unless
the diagnoses are “scientifically invalid”). Also, the Eighth Circuit has “consistently ruled
Differential diagnosis refers to a physician's “determination of which one of two or more diseases or
conditions a patient is suffering from, by systematically comparing and contrasting their clinical f indings.”
King v. Burlington N. Santa Fe Ry. Co., 762 N.W.2d 24, 49 (Neb. 2009). “In contrast, etiology ref ers to
determining the causes of a disease or disorder.” Id. at 49-50.
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that experts are not required to rule out all possible causes when performing the
differential etiology analysis.” Id. at 563.
To prove exposure levels, a plaintiff need only make a threshold showing that he
or she was exposed to toxic levels known to cause the type of injury suffered. Mattis v.
Carlon Elec. Prods., 295 F.3d 856, 860-61 (8th Cir. 2002). In the context of the FELA, a
plaintiff need not necessarily prove the levels of a toxin to which he or she was exposed. 4
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 as to causation even if expert testimony had been excluded
because due to the slight burden of proof in FELA actions, and stating that a jury may
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).
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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 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 (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).
The Court first finds the Railroad’s motion to exclude the testimony of Drs.
Blickenstaff and 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.
Dr. Perez’s methodology was reasonable in light of his expertise in the fields of
industrial and environmental hygiene. Dr. Perez has the qualifications and expertise to
express opinions regarding foreseeability and notice with respect to Cleaver’s injury and
the defendant's negligence. The defendant has not pointed to any deficiencies in Dr.
Perez’s methodology or the principles he relied on in formulating his opinions. Dr. Perez’s
report was supported with clear reference to the data and peer-reviewed literature. Dr.
Perez interviewed and read the deposition testimony of the plaintiff, who had first-hand
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knowledge of his workplace and exposure to diesel exhaust. Dr. Perez relied on peerreviewed studies and literature, as well as authoritative government publications, in
forming his opinions and conclusions. Based on that data, Dr. Perez was able to estimate,
to a reasonable degree of certainty, Cleaver’s lifetime exposure to diesel exhaust, and to
correlate his exposure to an increased risk of developing mantle cell lymphoma. Without
crediting the opinion of the defendant’s expert on the subject, the Court has no basis to
find that the methodology underlying Dr. Perez’s conclusions and opinions is not
scientifically valid, or that he failed to properly apply his described methodology.
The Court also rejects the defendant’s contentions that Dr. Blickenstaff’s
causation opinions are devoid of factual support and he did not employ a reliable
underlying scientific methodology to reach his conclusions. The Railroad asserts that Dr.
Blickenstaff has no knowledge of the amount or dose of exposure to diesel exhaust or
glyphosate that is likely to cause mantle cell lymphoma nor can he identify how much
diesel exhaust or glyphosate the plaintiff was exposed to while working at U.P. The
Railroad also argues that Dr. Blickenstaff did not properly perform a differential diagnosis.
Those arguments are not supported by the record.
Though Dr. Blickenstaff’s report lacks detail, he sufficiently discloses and supports
his opinion that Cleaver’s moderate or high-level exposures to benzene in diesel exhaust
in the course of his lengthy employment contributed to the development of mantle cell
carcinoma. The moderate to high exposure determination was based on Dr. Perez’s
report, which was, in turn, based on Cleaver’s first-hand knowledge and on U.P. air quality
studies. Dr. Blickenstaff properly extrapolated his opinion from the facts and literature.
The record shows he performed a differential diagnosis, though informally, which is a
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tested methodology that has been subjected to peer review/publication and is accepted
in the medical community.
Both experts’ testimony will assist the trier of fact in determining the requisite
causal connection between the toxins at issue and the injury—that U.P.’s allegedly
negligent conduct in exposing Cleaver to diesel exhaust and herbicides over almost forty
years of employment—played a part in Cleaver’s 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.
The alleged shortcomings in the experts’ evaluations are
properly the subject of cross-examination and do not call for exclusion of the testimony.
The defendant’s criticisms go to the weight, rather than the admissibility, of the testimony.
Under the FELA, the plaintiff need not demonstrate the railroad’s conduct was the
proximate cause of the injury, but only that it played a part—no matter how small—in the
injury. The Court finds the experts’ opinions have a factual basis and are supported by
accepted scientific theories.
The record shows the experts based their opinions on
medical records, peer-reviewed studies, evidence of exposures over a long period of time,
and on their education and experience in the fields of industrial hygiene, statistics,
toxicology, epidemiology, and public and occupational health.
The defendant relies in part on the declarations of its experts to discredit Drs.
Blickenstaff and Perez. That showing presents a classic battle of the experts. The jury
should decide among the conflicting views of different experts. The Court would invade
the province of the jury if it were to credit the testimony of the Railroad’s experts over the
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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. Even if there are
grounds for some alternative conclusion or flaws in the experts' methods, the expert
testimony at issue is within “the range where experts might reasonably differ,” and the
jury, not the trial court, should be the one to “decide among the conflicting views of
different experts.” Kumho Tire, 526 U.S. at 153.
With the admission of the expert testimony, there are issues of fact for the jury on
exposures and causation. U.P. has not shown as a matter of law that the plaintiff cannot
prevail in establishing that U.P.’s negligence “played a part” in Cleaver’s mantle cell
lymphoma. The Court finds the defendant’s motion for summary judgment should also
be denied. Accordingly,
IT IS ORDERED THAT:
The defendant's motion in limine to exclude Dr. Hernando Perez’s testimony
(Filing No. 46) is denied.
The defendant's motion in limine to exclude Dr. Theron Blickenstaff’s
testimony (Filing No. 44) is denied.
8:18-cv-00512-JFB-CRZ Doc # 69 Filed: 01/07/21 Page 17 of 17 - Page ID # 1221
The defendant's motion for summary judgment (Filing No. 42) is denied.
Dated this 7th day of January 2021.
BY THE COURT:
s/ Joseph F. Bataillon
Senior United States District Judge
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