Collins v. BNSF Railway Company

Filing 59

MEMORANDUM AND ORDER granting Motion to Exclude or Limit the Testimony of Plaintiffs Experts and granting Defendants Motion for Summary Judgment.(Signed by Judge Keith P Ellison) Parties notified.(arrivera, 4)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JOHN COLLINS,
Plaintiff,
VS.
BNSF RAILWAY COMPANY,
Defendant.

March 05, 2019
David J. Bradley, Clerk

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§ CIVIL ACTION NO. 4:17-CV-3572
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MEMORANDUM AND ORDER
Before the Court are Defendant BNSF Railway Company’s Motions to Exclude or
Limit Expert Testimony and for Summary Judgment. (Doc. Nos. 27, 29). Defendant argues
that Plaintiff John Collins’ expert witnesses must be excluded under Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and that Plaintiff has not provided
admissible evidence of causation or negligence as required for a Federal Employers
Liability Act (“FELA”) claim. After considering Defendant’s Motions and all applicable
law, the Court determines that Defendant’s Motions must be GRANTED.
I.

BACKGROUND
Plaintiff worked for Defendant as a brakeman, conductor, and engineer from 1997

to 2011. (Doc. No. 8 ¶ 4). He alleges that, during the course of his employment, he was
“exposed to various toxic substances and carcinogens including but not limited to
chemicals, solvents, diesel/exhaust, benzene, heavy metals, creosote, manganese and
rock/mineral dust and fibers.” (Doc. No. 8 ¶ 5). Plaintiff has filed suit against Defendant
under FELA. Plaintiff alleges that Defendant was negligent in exposing him to these
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substances and that he developed colon and then liver cancer as a result. (Doc. No. 8 ¶¶ 69). In particular, Plaintiff alleges that Defendant did not have locomotives with adequate
ventilation and air filtration systems, did not install proper engine exhaust filters, utilize
low emissions fuel, or require cleaner burning engines. (Doc. No. 8 ¶ 12). Defendant denies
that it was negligent or that Plaintiff’s exposure, if any, was a cause of Plaintiff’s cancer.
(Doc. No. 16 ¶ 14).
Defendant moves for summary judgment and to exclude or limit the testimony of
Plaintiff’s experts, Dr. Evan Roy Berger and Dr. Michael Ellenbecker. (Doc. Nos. 27, 29).
In a hearing on January 14, 2019, the Court granted Defendant’s motion to exclude Dr.
Ellenbecker’s late-produced report. Dr. Berger is Plaintiff’s causation expert. Defendant
argues that he should not be permitted to testify because he “reaches a ‘causation’ opinion
using a methodology he made up himself, one that is unknown to science.’ (Doc. No. 29,
at 7).
II.

LEGAL STANDARD

A.

Admission of Expert Testimony
Under Federal Rule of Evidence 702, an expert witness may testify 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; (d) the expert has reliably
applied the principles and methods to the facts of the case.

In Daubert, the Supreme Court held that, in deciding whether expert testimony is reliable,
the court should consider four non-exhaustive factors: 1) whether the scientific theory or
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technique has been tested; 2) whether the theory of technique has been subjected to peer
review and publication; 3) the known or potential rate of error and the existence and
maintenance of standards controlling the use of the technique; and 4) the general
acceptance of the theory or technique. 509 U.S. at 593-94.
B.

Summary Judgment
Under Federal Rule of Civil Procedure 56(a), the Court “shall grant summary

judgment if the movant shows that there is no dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Summary judgment must be entered “against a
party who fails to make a showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “In a FELA case the plaintiff’s burden
of proof is ‘featherweight’ and ‘[o]ur precedents clearly establish that in this Circuit, a
judgment as a matter of law against the plaintiff in a FELA suit is appropriate only where
there is a complete absence of probative facts supporting the plaintiff’s position.” Howard
v. Canadian Nat’l/Illinois Cent. R.R., 233 F. App’x 356, 357 (5th Cir. 2007) (quoting
Rivera v. Union Pac. R.R. Co., 378 F.3d 502, 506 (5th Cir. 2004)).
III.

ANALYSIS

A.

The FELA
Under the FELA, a railroad “shall be liable in damages to any person suffering

injury while he is employed by such carrier in [interstate] commerce . . . for such injury or
death resulting in whole or in part from the negligence of any of the officers, agents, or
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employees of such carrier, or by reason of any defect or insufficiency, due to its negligence,
in its cars . . . or other equipment.” 45 U.S.C. § 51. “A railroad is charged with providing
a reasonably safe work environment for its employees. Negligence within the meaning of
FELA exists if the defendant railroad knew, or by the exercise of due care should have
known that its conduct was inadequate to protect [the plaintiff] and similarly situated
employees.” Huffman v. Union Pac. R.R., 675 F.3d 412, 417 (5th Cir. 2012) (internal
citation and quotation marks omitted). “The standard of care for both the employer and
employee under FELA is one of ordinary prudence under the circumstances.” Id. at 418.
For causation under the FELA, “[i]f negligence is proved . . . and is shown to have played
any part, even the slightest, in producing the injury, then the carrier is answerable in
damages.” CSX Transp., Inc. v. McBride, 564 U.S. 685, 703-04 (2011) (internal citations,
quotation marks, and emphasis omitted). Accordingly, under the FELA a plaintiff has a
low burden on causation.
B.

Defendant’s Motion to Exclude or Limit Dr. Berger’s Testimony
Dr. Berger is Plaintiff’s causation expert. He is a medical doctor board certified in

internal medicine, hematology, and medical oncology. (Doc. No. 31, at 811). Dr. Berger
concluded that Plaintiff’s exposure to diesel fumes exhaust and asbestos was a contributing
factor in the development of his colon cancer. (Doc. No. 31, at 818). Defendant argues that
Dr. Berger’s testimony should not be admitted because: 1) he did not identify or rely on
studies that establish that there is a causal connection between exposure to the relevant
chemicals and colon cancer; 2) his methodology is not generally accepted by the scientific
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community; 3) his theories have not been subjected to peer review; and 4) his opinions are
not based on sufficient facts or data. (Doc. No. 30, at 8-16).
Dr. Berger appears to have reached his general causation opinion, namely, that
diesel exhaust and asbestos can cause colon cancer, primarily based on a literature review.
In his report, Berger stated that: “It is very clear from numerous articles listed in the
bibliography to this letter that there is direct evidence that is accepted by many members
of the medical and scientific communities that benzene and other poly-aromatic
hydrocarbons are present in diesel smoke. Furthermore it has been shown that these
substances are known to be carcinogens that are linked to the causation of adenocarcinoma
of the colon.” (Doc. No. 31, at 817). He also stated that “[t]he Scientific/Technical
Advisory Committee to the Sept. 11, 2001 WTC terror attack, listed benzene as a Level 1
toxin, which is the highest correlation with cancer that they have in their
recommendations.” (Doc. No. 31, at 817). In his deposition, Dr. Berger confirmed that he
primarily looks at the literature to determine whether a substance can cause a particular
medical condition. (Doc. No. 31, at 304).
However, Dr. Berger also acknowledged that none of the articles that he reviewed
definitively states that exposure to diesel exhaust and/or asbestos cause colon cancer:
Q: With regard to diesel exhaust, is it fair to say that as we sit
here today, diesel exhaust has not been established as a cause
of colon cancer?
...
A: It is associated with colon cancer. But it has not been proven
to be a cause.
...
Q: [C]an you point to any publication in your bibliography that
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finds that asbestos causes colon cancer?
A: No.
(Doc. No. 31, 271-72). Rather, he could state only that diesel exhaust and asbestos are
associated with colon cancer. (Doc. No. 31, at 271-73). But association and causation are
distinct. See Wells v. SmithKline Beecham Corp., 601 F.3d 375, 379 (5th Cir. 2010)
(holding that expert testimony on causation was inadmissible where the studies on which
the expert relies only established association); Anderson v. Bristol Myers Squibb Co., No.
Civ. A. H-95-0003, 1998 WL 35178199, at *11-12 (S.D. Tex. Apr. 20, 1998) (noting that
the fact that studies are scientifically valid for an association determination does not mean
that they are scientifically valid for a causation determination). It appears that Dr. Berger
used his own methodology to derive a causation conclusion from the studies on association.
This methodology seems to consist of applying three factors (dose response, consistency
of findings, and strength of association) to the literature on association to decide whether
the study also makes a conclusion on causation. (Doc. No. 30, at 306).
Neither Dr. Berger nor Plaintiff has shown that this kind of methodology is accepted
in the scientific community. Indeed, Dr. Berger acknowledged as much in his deposition:
“I can’t tell you where [this methodology] would be published. It’s my use of those factors
that help me make a decision.” (Doc. No. 31, at 306). Nor does it appear that Dr. Berger’s
ultimate conclusion on general causation has itself been subjected to peer review. Again,
neither Dr. Berger nor Plaintiff has pointed to any studies confirming his opinion that
asbestos and/or components of diesel fuel can actually cause colon cancer. Nor has Dr.
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Berger himself been a part of any such studies.
Plaintiff has argued that, in addition to a literature review for general causation, Dr.
Berger employed a “differential diagnosis/etiology” methodology to establish specific
causation. (Doc. No. 33, at 21-23). Although differential diagnosis is generally an accepted
approach, Dr. Berger did not explain what his own methodology consisted of in his
deposition. The most that he said is that he “tried” to rule out causes and that he thought
that Plaintiff’s obesity was also a risk factor that was related to his development of colon
cancer. (Doc. No. 31, at 278). Dr. Berger acknowledged that he did not have information
about Plaintiff’s other behavioral and lifestyle factors, such as diet and activity levels.
(Doc. No. 31, at 278-80).
To the extent that Dr. Berger did perform a differential diagnosis, the primary
problem is that neither he nor Plaintiff has pointed to any scientific evidence establishing
that exposure to diesel exhaust or asbestos can cause colon cancer. Therefore, Dr. Berger
could not have landed on exposure to these substances as a cause of Plaintiff’s cancer
through a differential diagnosis methodology. See Black v. Food Lion, Inc., 171 F.3d 308,
314 (5th Cir. 1999) (“The underlying predicates of any cause-and-effect medical testimony
are that medical science understands the physiological process by which a particular
disease or syndrome develops and knows what factors cause the process occur. . . . Absent
these critical scientific predicates, for which there is no proof in the record, no scientifically
reliable conclusion on causation can be drawn.”). Here, since there is no valid scientific
conclusion that exposure to diesel exhaust and/or asbestos causes colon cancer in general,
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Dr. Berger cannot have made a scientifically reliable conclusion that they caused Plaintiff’s
colon cancer. Accordingly, Dr. Berger’s testimony does not meet the Daubert standard and
is inadmissible.
C.

Defendant’s Motion for Summary Judgment
Since the Court has granted Defendant’s Motion to Exclude the Testimony of

Plaintiff’s Experts (Doc. No. 29), the Court must also grant Defendant’s Motion for
Summary Judgment. Plaintiff has not offered any evidence on causation separate from Dr.
Berger’s testimony and report. To survive summary judgment, Plaintiff must have some
admissible evidence on causation, even though Plaintiff’s burden on causation is lower in
FELA cases. See, e.g., Huffman, 675 F.3d at 426 (noting that “[j]urors still may not simply
guess,” even though the plaintiff’s causation burden is low in an FELA case and holding
that “[t]he path from worker injury to employer liability was too broken in this record to
allow juror common sense to travel it” where there was no evidence that the plaintiff’s
injury could result from the employer’s alleged negligence). Nor has Plaintiff demonstrated
that there is a factual dispute about Defendant’s negligence without Dr. Ellenbecker’s lateproduced report. There is no direct evidence of Plaintiff’s exposure to chemicals at all, let
alone any unreasonable exposure. Nor is there any evidence that Defendant did not take
reasonable measures to protect Plaintiff. Accordingly, Plaintiff has not demonstrated that
there are any factual disputes preventing summary judgment.

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IV.

CONCLUSION
The Court has the utmost sympathy for Plaintiff and does not doubt that he is

absolutely sincere in his arguments to this Court. But pertinent evidentiary standards are
clear and Plaintiff does not meet them. For the foregoing reasons, the Court GRANTS
Defendant’s Motion to Exclude or Limit the Testimony of Plaintiff’s Experts. The Court
also GRANTS Defendant’s Motion for Summary Judgment.
IT IS SO ORDERED.
SIGNED at Houston, Texas, on this the 5th day of March, 2019.

HON. KEITH P. ELLISON
UNITED STATES DISTRICT JUDGE

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