Davis v. CSX Corporation, Inc.

Filing 118

MEMORANDUM OPINION AND ORDER CONFIRMING PRONOUNCED ORDER OF THE COURT DENYING DEFENDANT'S MOTIONS IN LIMINE REGARDING DR. FREDERICK W. FOCHTMAN AND DR. D. SCOTT SIMONTON: The Defendant's 70 Motion in Limine and 75 Motion in Limine are denied. Signed by Senior Judge Frederick P. Stamp, Jr. on 12/30/11. (mh)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
BETTY JO DAVIS, individually
and as Executrix of the
Estate of VICTOR C. DAVIS,
Plaintiff,
v.

Civil Action No. 1:10CV74
(STAMP)

CSX TRANSPORTATION, INC.,
Defendant.
MEMORANDUM OPINION AND ORDER CONFIRMING PRONOUNCED ORDER
OF THE COURT DENYING DEFENDANT’S MOTIONS IN LIMINE
REGARDING DR. FREDERICK W. FOCHTMAN AND DR. D. SCOTT SIMONTON
I.

Background

The plaintiff, Betty Jo Davis, individually and as Executrix
of the Estate of Victor C. Davis, instituted this action pursuant
to the Federal Employers’ Liability Act, 45 U.S.C. § 51 et seq.
(“FELA”), alleging that her late husband contracted squamous cell
carcinoma of the thymus as a result of occupational exposure to
creosote while employed by the defendant, CSX Transportation, Inc.
(“CSX”).

Victor C. Davis, the decedent, worked for CSX as a

trackman and machine operator from 1975 until 2006.

During this

time, it is alleged that he was exposed to creosote on a daily
basis.

On August 16, 2006, Mr. Davis was diagnosed with thymic

cancer.

He died from thymic cancer on May 31, 2007 at the age of

57.

The plaintiff initiated this lawsuit on May 5, 2010.
The defendant has filed two motions in limine: (1) motion to

exclude the testimony of Frederick W. Fochtman, Ph.D., or, in the
alternative for Daubert hearing prior to trial; and (2) motion to

exclude the testimony of D. Scott Simonton, or, in the alternative
for Daubert hearing prior to trial.

The plaintiff filed timely

responses to both of the defendant’s motions in limine.

CSX then

filed a reply in support of its motion to exclude the testimony of
Frederick W. Fochtman, Ph.D.
On December 27, 2011, the parties appeared at the Wheeling
point of holding court for a pretrial conference.1

At this

hearing, the Court denied the defendant’s motions in limine.

This

order confirms the pronounced order of the Court, and for the
reasons set forth below, denies the defendant’s motions in limine.
II.

Applicable Law

The introduction of expert opinion testimony is governed by
Federal Rule of Evidence 702, which provides:
A witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify in
the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles
and methods; and
(d) the expert has reliably applied the principles and
methods to the facts of the case.
Fed. R. Evid. 702.

Rule 702 requires the trial judge to “ensure

that any and all scientific testimony or evidence is not only
relevant, but reliable.” Daubert v. Merrell Dow Pharms., Inc., 509
U.S. 579, 589 (1993). This “gatekeeping” obligation applies to all

1

Counsel for the plaintiff appeared via telephone.
2

expert testimony, and not just the scientific testimony at issue in
Daubert. See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 148
(1999).

Importantly,

“rejection

exception rather than the rule.”

of

expert

testimony

is

the

Fed. R. Evid. 702 advisory

committee’s note.
The first prong of this inquiry necessitates an examination of
whether the reasoning and methodology underlying the expert’s
proffered opinion is reliable – that is, whether it is supported by
validation adequate to render it trustworthy.
U.S. at 590 & n.9.

See Daubert, 509

As the Supreme Court explained in Daubert, the

subject of an expert’s testimony must be scientific knowledge,
meaning that it is grounded in the methods and procedures of
science and consists of more than subjective belief or unsupported
speculation.

Id. at 590.

The second prong of the inquiry requires an analysis of
whether the opinion is relevant to the facts at issue.
591-92.

See id. at

Daubert delineates five factors to assist the trial court

in determining whether an expert’s testimony will assist the trier
of fact: (1) whether the expert’s technique can be tested; (2)
whether it has been subjected to peer review and publication; (3)
the known or potential rate of error associated with a technique;
(4) if standards control the use of a technique; and (5) if the
technique is generally accepted within the scientific community.
Id. at 593-94. While the Supreme Court stated that those factors
are designed to assist courts, the Court also cautioned, “[t]he

3

inquiry envisioned by Rule 702 is, we emphasize, a flexible one.
Its overarching subject is the scientific validity – and thus the
evidentiary relevance and reliability – of the principles that
underlie a proposed submission.”

Id. at 594-95.

Therefore, the

trial judge’s evaluation of whether expert testimony is admissible
under Rule 702 is a flexible one, and the judge is given broad
discretion

in

the

determination

of

testimony is relevant and reliable.

whether

particular

expert

See Oglesby v. Gen. Motors

Corp., 190 F.3d 244, 250 (4th Cir. 1999); see also Kumho Tire, 526
U.S. at 152.

However, a witness may not generally offer to the

jury his opinion as to the governing law at issue in the case.
Adalman v. Baker, Watts & Co., 807 F.2d 359, 366 (4th Cir. 1986)
(affirming the exclusion of testimony by expert witness which
included legal conclusions), disapproved on other grounds in Pinter
v. Dahl, 486 U.S. 622 (1988)).
It is the role of the trial judge to distinguish opinion
testimony that embraces an ultimate issue of fact from opinion
testimony that states a legal conclusion.
Corp., 698 F.2d 236, 240 (5th Cir. 1983).

See Owen v. Kerr-McGee
As many courts have

recognized, it is often difficult to draw the line “between proper
expert evidence as to facts, the inferences to be drawn from those
facts, and the opinions of the expert, on the one hand, and the
testimony as to the meaning and applicability of the appropriate
law, on the other hand.”

Adalman, 807 F.2d at 366.

Nevertheless,

it is the duty of the court to “state to the jury the meaning and

4

applicability of the appropriate law, leaving to the jury the task
of determining the facts which may or may not bring the challenged
conduct within the scope of the court’s instruction as to the law.”
Id.
Finally, it is important to recognize that, notwithstanding a
trial

court’s

“gatekeeping”

function

as

to

expert

opinion,

“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 595.
III.
A.

Discussion

Dr. Frederick W. Fochtman
In its motion to exclude the testimony of Dr. Fochtman, CSX

presents the following arguments: (1) Dr. Fochtman does not have
the requisite knowledge, training, skill, or experience to testify
to causation of thymic cancer; (2) Dr. Fochtman’s causation theory
has never been tested or subjected to the peer-review process; (3)
Dr. Fochtman’s methodology creates an unacceptable potential for
error; (4) Dr. Fochtman’s method of concluding that exposure to
creosote cased the decedent’s thymic cancer is not generally
accepted in the toxicological, scientific, or medical communities;
and

(5)

the

probative

value

of

Dr.

Fochtman’s

opinions

is

outweighed by the dangers of unfair prejudice, confusion of the
issues, and misleading the jury.

5

In

response,

the

plaintiff

argues:

(1)

Dr.

Fochtman

is

qualified as an expert witness under Rule 702; (2) as a boardcertified toxicologist, Dr. Fochtman is qualified to testify as to
causation

of

Mr.

Davis’

thymic

cancer;

(3)

Dr.

Fochtman’s

methodology in reaching the conclusion that prolonged and repeated
exposure to creosote caused Mr. Davis to develop thymic cancer
satisfied the Daubert standards; (4) the fact that Dr. Fochtman’s
theory

was

not

inadmissible;

peer-reviewed

and

(5)

Dr.

probative than prejudicial.

or

tested

Fochtman’s

does

not

testimony

is

render
far

it

more

In its reply, CSX again asserts that

Dr. Fochtman does not possess the requisite expertise required to
be qualified to render the opinion that creosote exposure can cause
thymic

cancer.

CSX

also

reiterates

its

argument

that

Dr.

Fochtman’s methodology fails to satisfy the factors set forth in
Daubert to ensure reliability.
This Court finds that Dr. Fochtman's forensic toxicology
background

qualifies

him

to

testify

causation due to exposure to creosote.
certified

toxicologist,

chemistry

and

environments,
toxicology.

has

holds

worked

including

as

a
a

regarding

cancer

Dr. Fochtman, a board-

doctorate

in

toxicologist

teaching

thymic

forensic

in
and

Fochtman Dep. 6:2-25, July 15, 2011.

pharmaceutical
a

variety

of

environmental
Dr. Fochtman is

also a Diplomate in the American Board of Forensic Toxicology, a
Diplomate of the American Board of Toxicology, and a member of the
Society of Toxicology.

Fochtman Dep. 6:8-13.

6

Dr. Fochtman’s

curriculum vitae sets forth a long list of professional experience,
special courses, workshops attended, and papers presented that
reveal his extensive toxicology background and enable him capable
of rending an opinion in this case.
During his analysis, Dr. Fochtman reviewed Mr. Davis’ medical
records, his work history as a CSX employee, and his exposure to
certain

carcinogenic

mechanisms.

Fochtman

Dep.

17-18.

Dr.

Fochtman also reviewed deposition transcripts and discussed Mr.
Davis’ occupational exposure with his wife.

Id.

The plaintiff

emphasizes that in creating his hypothesis and report in this case,
Dr. Fochtman used a method and model accepted in virtually all
judicial proceedings.

The conclusion reached by Dr. Fochtman –

that “Mr. Davis’ case produced a typical occupational exposure to
those known human carcinogens that comprise the chemical amalgam
referred to as creosote” – is recognized in biomedical literature.
Pl.’s Mem. in Opp’n Ex. D.

Further, toxicokinetics of human coal

tar creosote exposure has been previously documented in scientific
literature.

Fochtman Dep. 18-19; 27-28.

Clearly, Dr. Fochtman

reviewed a variety of materials in forming his opinion in this
case, applying his knowledge and research to the facts.

Even

though Dr. Fochtman admits that he is not necessarily an expert
with regard to environmentally caused cancers, this Court finds
that Dr. Fochtman has sufficient education, knowledge, experience,
and training to make his testimony admissible under Rule 702.
Fochtman

Dep.

43:9-24;

see

Friendship

7

Heights

Associates

v.

Vlastimil Koubek, A.I.A., 785 F.2d 1154, 1159-60 (4th Cir. 1986)
(holding that the expert witness is qualified to testify by virtue
of her education, knowledge, and training).
The defendant argues that Dr. Fochtman’s causation theory
fails to satisfy the reliability factor under Daubert because his
hypothesis has never been tested and fails to satisfy the second
Daubert factor because it lacks support among any peer-reviewed
scientific literature. Although peer review and publication is one
factor that assists the courts in determining if expert testimony
is admissible,
[p]ublication (which is but one element of peer review)
is not a sine qua non of admissibility; it does not
necessarily correlate with reliability, . . . and in some
instances well-grounded but innovative theories will not
have been published . . . . Some propositions, moreover,
are too particular, too new, or of too limited interest
to be published . . . . The fact of publication (or lack
thereof) in a peer reviewed journal thus will be a
relevant, though not dispositive, consideration in
assessing the scientific validity of a particular
technique or methodology on which an opinion is premised.
Daubert, 509 U.S. at 593-94.

Certainly, the lack of peer review

will be an important factor for the jury to consider, but it is
only one factor of many.

Thus, Dr. Fochtman’s lack of publication

does not necessarily render his testimony inadmissible.
The defendant also alleges that Dr. Fochtman improperly relies
on temporal proximity between the development of Mr. Davis’ disease
and

his

exposure

to

creosote

as

the

basis

for

his

opinion.

According to the defendant, the mere fact that the disease occurred
subsequent to exposure is insufficient to show causation. However,

8

the Fourth Circuit Court of Appeals has held that expert opinions
“based on a reliable differential diagnosis and a strong temporal
relationship between a substantial exposure . . . and the onset of
[the

plaintiff’s]

symptoms”

are

admissible

under

Rule

702.

Anderson v. Quality Stores, Inc., 181 F.3d 86 (4th Cir. 1999).
As the defendant noted, an additional consideration under Rule
702

is

“whether

expert

testimony

proffered

in

the

case

is

sufficiently tied to the facts of the case that it will aid the
jury in resolving the factual dispute.”

Daubert, 509 U.S. at 591

(quoting United States v. Downing, 753 F.2d 1224, 1242 (3rd Cir.
1985)).

The consideration is one of “fit.”

In other words, will

the expert testimony be helpful to the jury. This Court finds that
Dr. Fochtman may provide information useful to a jury.

In fact,

this Court, and others, have held that toxicologists like Dr.
Fochtman may testify as to causation.

See Kitzmiller v. Jefferson

Supply Co., No. 2:05cv22, 2006 WL 2473399 (N.D. W. Va. Aug. 25,
2006) (“[A] toxicologist . . . ‘may offer expert opinions on
whether

exposure

to

[the]

chemical[s]

caused

[Plaintiff’s]

injury.’”; See also Bonner v. ISP Techs., Inc., 259 F.3d 924, 92831 (8th Cir. 2001) (allowing a toxicologist to testify that
exposure to a chemical caused a person’s symptoms and injuries);
Genty v. Resolution Trust Corp., 937 F.2d 899, 918 (3rd Cir. 1991)
(holding that the trial court’s exclusion of the witness, without
considering his credentials as a doctor of toxicology, simply
because he did not possess a medical degree, is inconsistent with

9

expert witness jurisprudence).

Additionally, this Court intends

to give detailed instructions as to how the jury is to consider
expert testimony, allowing the jury to decide what weight to give
Dr. Fochtman’s testimony.
B.

Dr. D. Scott Simonton
In its motion to exclude the testimony of Dr. Simonton, CSX

argues: (1) Dr. Simonton does not have the requisite knowledge,
training, skill, or experience to testify to exposures experienced
by the decedent or whether such exposures placed the decedent at a
risk of developing thymic cancer nor does he offer testimony that
assists the trier of fact; (2) Dr. Simonton employs no discernable
methodology; and (3) the probative value of Dr. Simonton’s opinions
is outweighed by the dangers of unfair prejudice, confusion of the
issues, and misleading the jury.
The plaintiff counters that: (1) Dr. Simonton is a qualified
expert witness under Rule 702; (2) as an environmental engineer,
Dr. Simonton is qualified to testify as to the risk of exposure to
creosote and its potential to cause cancer; (3) Dr. Simonton’s
methodology in reaching the conclusion that exposure to creosote
increase Mr. Davis’ risk of cancer satisfied the Daubert standards;
and

(4)

Dr.

Simonton’s

testimony

is

more

probative

than

prejudicial.
This Court’s analysis of the defendant’s motion to exclude the
testimony of Dr. Simonton is similar to the discussion regarding
Dr. Fochtman’s testimony above.

10

Like Dr. Fochtman, this Court

finds that Dr. Simonton is qualified to testify based upon his
environmental engineering background.

Dr. Simonton has a master’s

degree in environmental engineering and a Ph.D. in engineering.
Simonton Dep. 7:7-10, July 6, 2011.

His knowledge encompasses a

broad area of study including environmental policy, environmental
ethics, safe transport of contaminants, and human health risk
assessment.

Simonton Dep. 8:8-19.

He is also a member of the

Environmental Qualify Board in West Virginia.
4.

Simonton Dep. 10:2-

During his July 6, 2011 deposition, Dr. Simonton testified as

to his knowledge of contaminants and the risk they pose to humans.
He also explained the carcinogenic nature of creosote.
Dep. 59-60.

Simonton

Because Dr. Simonton’s expertise in environmental

engineering overlaps with the field of epidemiology, he is familiar
with the carcinogenic nature of chemicals.

Simonton Dep. 13-14.

As the plaintiff explains, Dr. Simonton is not a medical doctor,
but that fact does not preclude him from testifying as an expert in
environmental engineering. This Court agrees. See Genty, 937 F.2d
at 917.
This Court also finds that Dr. Simonton’s methodology in
reaching his conclusion that exposure to creosote increased Mr.
Davis’ risk of cancer is sound.
Dr.

Simonton

studied

In reviewing Mr. Davis’ death,

deposition

transcripts,

CSX

safety

and

industrial hygiene documents, and other documents from government
agencies.

Pl.’s Resp. in Opp’n Ex. B.

Dr. Simonton’s conclusion

regarding the circumstances of Mr. Davis’ death appears to be based

11

upon his education, knowledge, and training as an environmental
engineer.

This Court, in exercising its “gatekeeper” function to

determine the admissibility of expert scientific testimony, cannot
invade the province of the jury, whose job it is to decide issues
of credibility and persuasiveness, and to determine the weight that
should be given to the expert’s opinion.

San Francisco v. Wendy’s

Intern., Inc., 656 S.E.2d 485, 494 (W. Va. 2007).

Accordingly,

this Court finds that Dr. Simonton’s testimony is admissible under
Rule 702.
IV.

Conclusion

For the reasons stated above, the defendant's motion in limine
to exclude the testimony of Frederick W. Fochtman, Ph.D., or, in
the alternative for Daubert hearing prior to trial (ECF No. 70) is
DENIED

and

the

defendant's

motion

in

limine

to

exclude

the

testimony of D. Scott Simonton, or, in the alternative for Daubert
hearing prior to trial (ECF No. 75) is DENIED.

Further, the

defendant’s request for a Daubert hearing is DENIED.
IT IS SO ORDERED.
The Clerk is directed to transmit a copy of this memorandum
opinion and order to counsel of record herein.
DATED:

December 30, 2011

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

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