Abraham v. Union Pacific R. Co.

• Decision Date: 28 June 2007
• Docket Number: No. 14-06-00419-CV.,14-06-00419-CV.
• Citation: 233 S.W.3d 13
• Parties: Clarence ABRAHAM, et al., Appellants v. UNION PACIFIC RAILROAD COMPANY, Appellee.
• Court: Texas Court of Appeals

233 S.W.3d 13

Clarence ABRAHAM, et al., Appellants v. UNION PACIFIC RAILROAD COMPANY, Appellee.

No. 14-06-00419-CV.

Court of Appeals of Texas, Houston (14th Dist.).

June 28, 2007.

Rehearing Overruled August 23, 2007.

U. Lawrence Boze, Houston, TX, and Richard P. Kinnan, Los Angeles, CA, for appellants.

Deborah A. Newman, Kent Rutter, Lynne Liberato, Houston, TX, for appellees.

Panel consists of Chief Justice HEDGES and Justices HUDSON and EDELMAN.

OPINION

ADELE HEDGES, Chief Justice.

Appellants, 293 former and current employees of Union Pacific Railroad Company,¹ appeal a summary judgment in favor of Union Pacific. In a single issue, appellants argue that their medical causation evidence was sufficient to overcome appellee's motion for summary judgment. We affirm.

I. BACKGROUND

Appellants filed a toxic tort suit under the Federal Employers Liability Act ("FELA") alleging that exposure to creosote used in the treatment of railroad ties caused appellants to suffer diseases of the throat, lungs, and skin including cancer. See 45 U.S.C. §§ 51-60. The trial court set a trial date for a "test plaintiff," Leslie Duncan. Mr. Duncan worked at Houston Wood Preserving Works where he loaded treated railroad cross-ties onto railroad cars. Medical records indicate that Mr. Duncan smoked cigarettes and regularly drank a moderate amount of alcohol. Mr. Duncan died from throat and lung cancers in 2002.

After appellants produced the affidavit of their medical expert, Dr. James Dahlgren, appellee filed a motion for summary judgment on both traditional and no evidence grounds. Appellee based its motion on the ground that Dr. Dahlgren's affidavit was no evidence of causation because it did not contain scientifically reliable and legally sufficient expert evidence. The trial court granted summary judgment in favor of appellee against Mr. Duncan. Almost a year later, appellee filed a motion for summary judgment against the remaining appellants. The trial court subsequently granted summary judgment against all appellants.

II. STANDARD OF REVIEW

A no-evidence motion for summary judgment must be granted if: (1) the moving party asserts that there is no evidence of one or more specified elements of a claim or defense on which the adverse party would have the burden of proof at trial; and (2) the respondent produces no summary judgment evidence raising a genuine issue of material fact on those elements. See Tex. R. Civ. P. 166a(i). In reviewing a no-evidence summary judgment, we review the record in the light most favorable to the nonmovant to determine whether more than a scintilla of evidence was presented on the challenged elements of the nonmovant's claim. See Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex.2002). When a trial court's order granting a no evidence summary judgment does not specify the ground relied upon for its ruling, the summary judgment will be affirmed if any of the theories advanced is meritorious. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.2001).

A party may object to the reliability of expert testimony either before trial or when it is offered. See Guadalupe-Blanco River Auth. v. Kraft, 77 S.W.3d 805, 807 (Tex.2002). Once such an objection is made, the burden is on the proponent of the evidence to establish its reliability. Id. A trial court's decision whether to admit expert testimony is reviewed for abuse of discretion. Id. In addition to being a determinant of the admissibility of such evidence, the reliability of expert testimony is also a prerequisite to its legal sufficiency. See Merrell Dow Pharms. v. Havner, 953 S.W.2d 706, 714 (Tex.1997). In the context of a motion for summary judgment where, as here, expert evidence relied on by the nonmovant is objected to by the movant based on reliability, the evidence must be both admissible and legally sufficient to withstand the no evidence challenge. See Frias v. Atlantic Richfield Co., 104 S.W.3d 925, 928 n. 2 (Tex.App.-Houston [14th Dist.] 2003, no pet.).

III. CAUSATION

A. The FELA Causation Standard

Under FELA, every railroad engaging in interstate commerce is liable in damages to any employee injured during his employment when such injury results in whole or in part from the railroad's negligence or by reason of any defect or insufficiency due to its negligence. See 45 U.S.C. § 51 (1988). Plaintiffs must prove the common-law elements of negligence, duty, breach, foreseeability and cause-in-fact; however, under FELA, the plaintiff carries only a slight burden on causation. Union Pac. R.R. Co. v. Williams, 85 S.W.3d 162, 168 (Tex.2002). Accordingly, the test of causation is whether the proof justifies, within reason, the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which the claimant seeks damages. Rogers v. Missouri Pacific Ry., 352 U.S. 500, 507, 77 S.Ct. 443, 449, 1 L.Ed.2d 493 (1957).

B. Necessity of Expert Testimony

Despite the lower burden under FELA, a plaintiff still bears the burden of presenting evidence from which a jury could conclude the existence of a probable or likely causal relationship as opposed to merely a possible one. Edmonds v. Illinois Cent. Gulf R.R. Co., 910 F.2d 1284, 1288 (5th Cir.1990). The causal link between an event sued upon and the plaintiffs' injuries must be shown by competent evidence. Morgan v. Compugraphic Corp., 675 S.W.2d 729, 731 (Tex.1984). Lay testimony will suffice when general experience and common sense will enable a lay person fairly to determine the causal connection. Praytor v. Ford Motor Co., 97 S.W.3d 237, 241 (Tex.App.-Houston [14th Dist.] 2002, no pet.). The existence of a causal connection between exposure to a certain chemical and injury or disease requires specialized expert knowledge and testimony because such matters are not within the common knowledge of lay persons. Pilgrim's Pride Corp. v. Smoak, 134 S.W.3d 880, 893 (Tex.App.-Texarkana 2004, pet. denied). Therefore, in this case in which the plaintiffs have alleged that exposure to creosote caused their diseases, expert testimony is required to enable lay persons to determine whether the exposure caused the disease.

C. Reliability of Expert Testimony

Despite the fact that appellants assert a claim under the federal statute, the trial court must follow state procedure in determining the reliability of expert testimony. See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406 (Tex. 1998). To be admissible into evidence, an expert witness's testimony must, among other things, be reliable. E.I. du Pont de Nemours and Co. v. Robinson, 923 S.W.2d 549, 565 (Tex.1995). In Robinson, the Texas Supreme Court set forth a two-part test governing the admissibility of expert testimony: (1) the expert must be qualified; and (2) the testimony must be relevant and be based on a reliable foundation. Id. at 556. Expert testimony is unreliable if: (1) it is not grounded in the methods and procedures of science and is thus no more than subjective belief or unsupported speculation; or (2) there is too great an analytical gap between the data upon which the expert relies and the opinion he offers. Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 800 (Tex. 2006). The purpose of the reliability determination is not to decide whether the expert's conclusions are correct, but only whether the analysis used to reach them is reliable. Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 629 (Tex.2002).

D. Expert Testimony under the FELA Causation Standard

1. Federal Authority

Appellants rely on Hines v. Consolidated Corp., 926 F.2d 262 (3rd Cir.1991), to validate their expert's testimony. In that opinion, the Third Circuit opined that causation under FELA is broadly interpreted and that "a medical expert can testify that there was more than one potential cause of a plaintiff's condition." Id. at 268. The court further concluded that a trial court is justified in withdrawing issues from the jury's consideration only in those rare instances where there is a zero probability either of employer negligence or that any such negligence contributed to the injury of the employee. Id., citing Pehowic v. Erie L.R.R., 430 F.2d 697, 699-700 (3rd Cir.1970). The Hines court found that by enacting FELA, Congress desired to "secure jury determinations in a larger proportion of cases than would be true of ordinary common law actions." 926 F.2d at 269, quoting Boeing Co. v. Shipman, 411 F.2d 365, 371 (5th Cir.1969), overruled on other grounds, Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 336 (5th Cir. 1997). The court further held that the standard of causation under FELA can significantly influence a determination of the admissibility of an expert's testimony. 926 F.2d at 269. Thus, the court in Hines found that FELA's liberal standard of causation required the admission of evidence that might have been excluded in a non-FELA case. See id.

Two years after Hines, the Supreme Court issued Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), regarding the reliability of expert testimony. In Robinson, the Texas Supreme Court adopted the Daubert standards for assessing the reliability of expert testimony. 923 S.W.2d at 557. Several federal courts have addressed the tension between the Daubert/Robinson standard of admission of expert testimony and the FELA standard on causation for submission of a case to a jury. Those courts have found that the standard of causation under FELA and the standards of admission of expert testimony under the rules of evidence are distinct issues and do not affect each other. See In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 743 (3rd Cir.1994); Claar v. Burlington Northern R.R. Co., 29 F.3d 499, 503 (9th Cir.1994); In re Conrail Toxic Tort Fela Litig., No. CIV. A 94-11J, Civ. A 94-4J, 1998 WL 465897 (W.D.Pa. Aug.4, 1998) (not released for publication).

The lower burden under FELA does not mean that, in FELA cases, courts...