Myers v. Ill. Cent. R. Co.

Citation629 F.3d 639
Decision Date15 December 2010
Docket NumberNo. 10-1279,10-1279
PartiesTimothy MYERS, Plaintiff-Appellant, v. ILLINOIS CENTRAL RAILROAD COMPANY, d/b/a Canadian National/Illinois Central Railroad Company, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Patrick S. O'Brien, O'Brien Chod, Newton G. McCoy (argued), St. Louis, MO, for Plaintiff-Appellant.

Kurt E. Reitz (argued), Thompson Coburn, Belleville, IL, for Defendant-Appellee.

Before MANION, SYKES and HAMILTON, Circuit Judges.

MANION, Circuit Judge.

For almost thirty years, Timothy Myers worked for the Illinois Central Railroad Company. The work was physically demanding and over the course of his career Myers suffered several injuries, including cumulative trauma disorders that eventually forced him to retire. He sued the Railroad claiming that these disorders were caused by its negligence. Before trial, Myers offered reports from three medical doctors and an ergonomist that would prove the Railroad's negligence caused his injuries. But the district court barred Myers's experts and granted summary judgment for the Railroad. On appeal, Myers argues that the district court erred. Because the opinions of Myers's physicians were based on speculation, and the nature of his injuries necessitates expert testimony about specific causation that the ergonomist could not provide, we affirm.

I.

Myers is 50 years old, and he began working for the Railroad after graduating from high school in 1978. Over the years, he worked in various capacities, including as a brakeman, a switchman, and a conductor. Since the early 1990s, the job titles brakeman, switchman, and conductor included the same employment tasks, and we use them interchangeably. Regardless of the title, Myers's work was physically demanding. He would get on and off a slow-moving train 30 or 35 times a day and walk several miles every day on large, rocky ballast. Ballast is simply the rock that surrounds the train tracks. Sometimes the ballast was covered with bean meal or corn meal, which made it like walking through mud during the summer time and walking on ice in the winter. In addition to walking miles in those conditions, as many as 50 times a day Myers would throw the switch that changes tracks that a train is traveling on. And he would connect the handbrakes and pull the pins that connect the train cars. These tasksvaried in difficulty depending on the rail yard and the season.

Besides being physically demanding, this work was also dangerous. Myers fell off a tank car in 1981 and broke his right ankle and hurt his left knee, which required surgery. A few years later, he stepped on a large rock while he was getting off the train and injured his right knee. He had surgery on that knee too. Then in 1987, he injured his back after trying to move a four-hundred-pound draw bar, which is a device used for coupling a train car to the engine. As a result he missed three to five months of work. After that, Myers was injury-free until 1998 when he injured his knee and shoulder trying to force a cab door open. The knee improved with rest, but he had to have surgery on his shoulder.

Naturally these injuries and the nature of this work have taken a toll on Myers's body. Between 2004 and 2006, he began to experience pain in his left elbow, his right knee, and his back and neck. The problem with his left elbow was diagnosed as a medial epicondylitis, which is commonly called "golfer's elbow"; his right knee was diagnosed with osteoarthritis, which is commonly referred to as degenerative arthritis; and he had several serious problems with his back, including several herniated disks. Each problem required surgery—two, in the case of his back.

In 2008, he sued the Railroad under the Federal Employers' Liability Act, 45 U.S.C. § 51, claiming that the Railroad's failure to provide him with a reasonably safe workplace caused the problems with his elbow, knee, and back and neck. The physicians who treated Myers for each of these injuries were listed as experts and expected to testify at trial. Myers also expected to call an ergonomist, Dr. Tyler Kress, who would testify at trial about how the dangerous conditions in the Railroad's yards could have caused Myers's injuries.

Before trial, however, the district court struck the four experts. It found that under Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), none of the experts' opinions was based on reliable procedures or methods. It reasoned that the experts did not have an adequate understanding of Myers's medical history or his work with the Railroad to give an opinion about what caused his injuries. Concerning the ergonomist, the court found that because his analysis of railroad conditions was not focused on Myers's work there, his opinion was not reliable. After striking the experts, the district court granted the Railroad's motion for summary judgment, and this appeal followed.

II.

There are two issues here. The first is whether the district court erred by finding that Myers needed expert testimony to establish specific causation and granting summary judgment for the Railroad. The second is whether the district court correctly applied Daubert when it struck Myers's physicians from giving expert testimony. We review de novo the granting of summary judgment. Gayton v. McCoy, 593 F.3d 610, 619 (7th Cir.2010). And we review for an abuse of discretion the district court's decision to exclude the expert testimony. Happel v. Walmart Stores, Inc., 602 F.3d 820, 824-25 (7th Cir.2010).

III.

The primary question on appeal is whether Myers needs expert testimony to establish that the Railroad's negligence specifically caused the cumulative trauma injuries to his knee, elbow, and back and neck. In the district court and here, Myers argues that he merely needs to have expert testimony establishing that the conditions at the Railroad can causethe injuries that Myers suffers from. In support of this, Myers planned to call an ergonomist, Dr. Tyler Kress, to testify that the Railroad's practices can cause the same ailments afflicting Myers.

The district court struck the ergonomist because he could not tie Myers's work and the Railroad's practices to Myers's specific injuries. Myers argues that although Kress could not testify about what specifically caused his injuries, he could testify generally about the dangers that come with working in the Railroad's yards. And from that alone, the jury could find that Myers's injuries were caused by the Railroad. Thus, the issue Myers presents on appeal is not whether the ergonomist should have been excluded because he could not testify about the specifics of how Myers's work caused his injury, but whether Kress's general causation testimony is sufficient to survive summary judgment.

Debate continues over the issue of how plaintiffs must establish causation under FELA. See Norfolk Southern Ry. Co. v. Sorrell, 549 U.S. 158, 173-175, 127 S.Ct. 799, 166 L.Ed.2d 638 & fn* (2007) (Souter, J., concurring) (surveying cases); id. at 178-181, 127 S.Ct. 799 (Ginsburg, J., concurring) (same); see also McBride v. CSX Transp., Inc., 598 F.3d 388 (7th Cir.2010) (Ripple, J.), cert. granted, --- U.S. ----, 131 S.Ct. 644, 178 L.Ed.2d 475 (2010). It is an important issue and one that has come to the forefront with the changing nature of the injuries that railroad workers suffer. CSX Transp., Inc. v. Miller, 159 Md.App. 123, 858 A.2d 1025 (2004) (surveying FELA's development and application to a cumulative trauma injuries); Aparicio v. Norfolk & Western Ry. Co., 84 F.3d 803, 811 (6th Cir.1996), abrogated on other grounds by Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); see also Melissa Sandoval Greenidge, Getting the Train on the Right Track: A Modern Proposal for Changes to the Federal Employers' Liability Act, 41 McGeorge L.Rev. 407 (2010). The Act was passed at a time when every year thousands of railroad workers were killed and tens of thousands were maimed, and it "was designed to put on the railroad industry some of the cost for the legs, eyes, arms, and lives which it consumed in its operations." Wilkerson v. McCarthy, 336 U.S. 53, 68, 69 S.Ct. 413, 93 L.Ed. 497 (1949) (Douglas, J., concurring). Although workers still get injured, the loss of lives and limbs is fortunately and increasingly rare. The injuries commonly reported now are cumulative trauma injuries or disorders; they "are characterized as 'wear and tear' on the tissue surrounding joints, ligaments, and tendons." Gutierrez v. Excel Corp., 106 F.3d 683, 686 (5th Cir.1997). These cover everything from Myers's ailments to carpal tunnel syndrome and hearing loss. And "while CTDs are generally not caused by any one specific traumatic event, there are certain risk factors associated with cumulative trauma, including repetition, force, vibration, cold, and posture." Id.; see also Greenidge, supra at 408 & 419-21.

These injuries are still very serious and possibly compensable under the Act. But "the Act did not make the employer an insurer. The liability which it imposed was the liability for negligence." Wilkerson, 336 U.S. at 68, 69 S.Ct. 413 (Douglas, J., concurring). That, of course, means an employee must prove that the railroad was negligent and that the railroad's negligence caused the injury at issue. Claar v. Burlington N.R.R. Co., 29 F.3d 499, 503 (9th Cir.1994). And nothing in the Act alters the accepted fact that unless the connection between the negligence and the injury is a kind that would be obvious to laymen, expert testimony is required.Brooks v. Union Pacific R. Co., 620 F.3d 896, 900 (8th Cir.2010).

While the plaintiff is obligated to prove some degree of negligence, the question remains whether expert testimony is required in that process. Expert testimony is unnecessary in cases where a layperson can understand what caused the injury. See Wallace v. McGlothan, 606 F.3d 410,...

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