215 F.3d 1083 (10th Cir. 2000), 99-1143, Goebel v. Denver & Rio Grande Western Railroad

Docket Nº:99-1143
Citation:215 F.3d 1083
Party Name:RICHARD W. GOEBEL, Plaintiff - Appellee, v. DENVER AND RIO GRANDE WESTERN RAILROAD COMPANY, a Delaware corporation, Defendant-Appellant.
Case Date:June 12, 2000
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1083

215 F.3d 1083 (10th Cir. 2000)

RICHARD W. GOEBEL, Plaintiff - Appellee,

v.

DENVER AND RIO GRANDE WESTERN RAILROAD COMPANY, a Delaware corporation, Defendant-Appellant.

No. 99-1143

United States Court of Appeals, Tenth Circuit

June 12, 2000

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO (D.C. No. 94-N-2206)

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Steven M. Weisbaum (and Lawrence M. Mann, Alper, Mann & Weisbaum, Washington, D.C. and Christopher B. Little, Montgomery, Little & McGrew, Englewood, Colorado, with him on the briefs), for Plaintiff - Appellee

James W. Erwin (and Thomas R. Jayne, Thompson, Coburn, St. Louis, Missouri, and Steven E. Napper, Union Pacific Railroad Co., Denver, Colorado, with him on the briefs), for Defendant - Appellant.

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Before BALDOCK, KELLY, and BRISCOE, Circuit Judges.

PAUL KELLY, JR., Circuit Judge.

This case requires us to explore the gatekeeper function of the district court in determining the admissibility of expert witnesses under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Appellant Denver and Rio Grande Western Railroad Company (hereinafter "Railroad") argues that the district court erred in admitting the testimony of Dr. Daniel T. Teitelbaum, which purported to establish a causal link between Appellee Richard Goebel's cognitive brain damage and exposure to diesel exhaust at high altitude. We reverse and remand for a new trial.

Background

At the time of the incident giving rise to this case, Mr. Goebel was employed by the Railroad as a locomotive engineer. On January 5, 1994, he was instructed to operate two "helper" locomotives to help push a 5,900 foot long, nine locomotive train through the Moffat Tunnel ("Tunnel") in Colorado. The Moffat Tunnel is 6.21 miles long and runs over the continental divide. At the West Portal, the Tunnel is 9,084 feet above sea level, rises to 9,239 feet at its apex, and then drops to 9,198 feet at the East Portal. The Tunnel is equipped with an automatic ventilation system designed to clear the diesel fumes and exhaust which accumulate with the passage of each train. There are also twenty-one numbered "refuges" in the tunnel ­ spaces where the walls have been widened to hold barrels containing emergency breathing equipment.

Mr. Goebel's helper units met up with the train late on the night of January 5 and were attached as the rear locomotives to assist in pushing through the Tunnel. Mr. Goebel was accompanied by Matthew Fletcher, a fireman/engineer. The train entered the Tunnel through the West Portal shortly after 1:00 a.m. on January 6, with all nine locomotives running full throttle in order to make it up the hill to the apex of the tunnel. At approximately 1:15 a.m., the train suddenly broke in half, the emergency brakes automatically applied, and the train came to a stop in the Tunnel.

Upon coming to a standstill, Mr. Goebel took a portable radio and left the cab to inspect the "helper" locomotives. The air in the tunnel was dark and smoky, but Mr. Goebel was able to determine that the locomotives were properly running in idle. He also noticed that the rear of the train had stopped near Refuge 5. Mr. Goebel went to the refuge to get the emergency breathing equipment, but was unable to get the barrel open. He returned to the locomotive cab after being outside between five to fifteen minutes. Mr. Goebel testified that by the time he returned to the locomotive he had a headache, tightness in his chest and nausea.

Meanwhile, Mr. Fletcher had been on the radio, attempting to determine the nature of the problem. After a few minutes of discussion, Mr. Goebel left the cab again to get breathing equipment from the refuge. This time he managed to get the barrel open and returned to the locomotive with two Type "N" air respirators. On returning to the locomotive for the second time, Mr. Goebel said that his body was sore, his chest was tight and he was so disoriented that he could not read the instructions on the respirators. After donning the respirator, he went outside a third time in order to start one of the locomotives which had shut down. He then returned to the cab, the train started, and finally reached the East Portal around 2:07 a.m., almost one hour after entering the tunnel.

Both Mr. Goebel and Mr. Fletcher did not feel well enough to continue. They dropped off their helper locomotives at Rollins, Colorado and were picked up by an ambulance around 2:50 a.m. and placed on pure oxygen. They remained on oxygen until arriving at Lutheran Medical

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Center at 4:30 a.m. Blood tests for carbon monoxide poisoning conducted on both men around 5:07 a.m. revealed normal carboxyhemoglobin levels. Mr. Goebel and Mr. Fletcher were released that morning and instructed to return in 24 hours for a follow-up.

Mr. Fletcher received no further treatment and returned to work. Mr. Goebel, however, continued to complain of dizziness, headache, abdominal pain, and disorientation as a result of the incident. He was referred by his personal doctor to Dr. Teitelbaum, a medical doctor specializing in toxicology, on February 8, 1994. Dr. Teitelbaum reviewed Goebel's medical history ­ including the blood tests done at Lutheran Medical Center ­ and conducted a traditional physical examination. Based upon this examination, Dr. Teitelbaum wrote Mr. Goebel a May 24, 1994 letter explaining his findings: "My diagnosis is acute combustion products intoxication with a neuropsychological and neurological syndrome possible . . . ." Aplt. App. at 53.

When Mr. Goebel expressed concerns about his memory, Dr. Teitelbaum referred him to Dr. Frederick Kadushin, a neuropsychologist, for further testing. Dr. Kadushin determined that plaintiff had suffered cognitive deficits. This conclusion was reinforced by a speech pathologist who also confirmed that Mr. Goebel had cognitive deficits, probably from a mild brain injury. Mr. Goebel also was examined by a clinical psychologist who determined that plaintiff was suffering from severe depression and post traumatic stress disorder.

Mr. Goebel brought suit against the Railroad under the Federal Employer's Liability Act, the Safety Appliances Act, and the Occupational Safety and Health Act, alleging that his personal injuries resulted from the Tunnel accident.1 The district court granted summary judgment to plaintiff on the question of liability, limiting the trial to issues of causation and damages. At trial, Dr. Teitelbaum testified as to the causation of plaintiff's injuries.

I believe that the cause of Mr. Goebel's injury was his exposure to a unique environment, deficient in oxygen at low barometric pressure, contaminated with pulmonary irritants, which combined with the unique physiologic setting which takes place at high altitude produced an oxygen lack syndrome, which produced swelling in his brain, called cerebral edema, which resulted in small diffuse pressure injuries which resulted in his cognitive defect.

It's a complicated chain of events, but one which is relatively simple to explain on the basis of the fundamental physiology. All of these pieces have been looked at in separate events. In this gentleman, they occurred at the same time and produced this result.

2 R. at 386. The jury found in favor of Mr. Goebel and awarded him $755,000 in damages for lost wages, pain and suffering, and loss of enjoyment of life. The district court denied the Railroad's motion for judgment as a matter of law, and this appeal followed.

Procedural Context

The Railroad argues that the district court improperly admitted Dr. Teitelbaum's testimony, which it characterizes as "junk science relying solely upon the ipse dixit of the expert." Aplt. Br. at 20. Defendant raised this issue on three separate occasions before the trial court. First, the Railroad brought a motion in limine seeking to exclude the testimony as unscientific and based solely upon possibilities. On the morning of trial, the district court orally denied this motion. We have no record of the district court's decision; the court

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minutes indicate that no court reporter was present at the time the motion was...

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