BNSF Ry. Co. v. Baca
| Decision Date | 29 March 2018 |
| Docket Number | NO. 02-17-00168-CV,02-17-00168-CV |
| Parties | BNSF RAILWAY COMPANY (INDIVIDUALLY AND AS SUCCESSOR-IN-INTEREST TO THE BURLINGTON NORTHERN, INC., BURLINGTON NORTHERN & SANTA FE RAILWAY COMPANY AND ATCHISON TOPEKA AND SANTA FE RAILWAY COMPANY) APPELLANT v. LEONARD A. BACA APPELLEE |
| Court | Texas Court of Appeals |
FROM THE 48TH DISTRICT COURT OF TARRANT COUNTY
In this permissive interlocutory appeal involving a claim under the Federal Employers Liability Act (FELA), Appellee Leonard A. Baca alleges that while working for Appellant BNSF's predecessor in interest, he was exposed to asbestos, causing him to develop asbestosis. See 45 U.S.C.A. §§ 51-60 (West 2007). Baca retained as an expert Dr. Alvin Schonfeld, a pulmonologist, who provided a report in which he concluded Baca's asbestosis was causally related to his exposure to asbestos during his employment. BNSF moved to exclude Dr. Schonfeld's causation opinion as inadmissible because it was unreliable under well-established caselaw.2 The trial court denied the motion but also granted permission in its order for BNSF to immediately appeal, finding that the order involved a controlling question of law as to which there is a substantial ground for difference of opinion and an immediate appeal from the order would materially advance the ultimate termination of this litigation. See Tex. Civ. Prac. & Rem. Code § 51.014(d) (West 2017); Tex. R. Civ. P. 168.
We answer no. Because the trial court denied BNSF's motion to exclude based on the opposite conclusion, we reverse the trial court's order and remand this case for further proceedings.
FELA makes any railroad engaged in interstate commerce liable in damages for an injury to or death of an employee sustained while employed by the railroad if the injury or death resulted in whole or in part from the negligence of the railroad's employees or by reason of any defect or insufficiency in its equipment due to its negligence. See 45 U.S.C.A. § 51; Union Pac. R.R. v. Williams, 85 S.W.3d 162, 165 (Tex. 2002). To prevail on a FELA claim, a plaintiff must establish the traditional common-law elements of negligence: duty, breach,foreseeability, and cause-in-fact. See Tufariello v. Long Island R.R., 458 F.3d 80, 87 (2d. Cir. 2006); Abraham v. Union Pac. R.R., 233 S.W.3d 13, 17 (Tex. App.—Houston [14th Dist.] 2007, pet. denied). But a plaintiff's burden to establish a railroad's liability under FELA is lighter than it would be in an ordinary negligence case because FELA prescribes a relaxed standard of causation. See Lynch v. Ne. Reg'l Commuter R.R., 700 F.3d 906, 911 (7th Cir. 2012); Abraham, 233 S.W.3d at 17. Under that relaxed causation standard, a plaintiff is entitled to prevail on a FELA claim if the railroad's negligence played any part, even the slightest, in producing the injury or death for which damages are sought. See CSX Transp., Inc. v. McBride, 564 U.S. 685, 688, 705 (2011); BNSF Ry. Co. v. Nichols, 379 S.W.3d 378, 382 (Tex. App.—Fort Worth 2012, pet. denied). This relaxed causation standard is often referred to as a "featherweight" standard. See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406 (Tex. 1998).
Baca sued BNSF alleging a claim under FELA.4 His theory of liability is straightforward: he claims that his exposure to toxic substances and dusts, including asbestos and asbestos-containing products and materials, while in the course of his employment with BNSF caused him to develop asbestosis. Because whether a causal connection exists between a person's exposure to a chemical and a disease from which he suffers is outside the common knowledgeand experience of lay persons, expert testimony is generally required to prove such a causal connection. See Guevara v. Ferrer, 247 S.W.3d 662, 665 (Tex. 2007); Abraham, 233 S.W.3d at 18; Pilgrim's Pride Corp. v. Smoak, 134 S.W.3d 880, 893-94 (Tex. App.—Texarkana 2004, pet. denied). Baca retained Dr. Schonfeld to do just that.
Dr. Schonfeld is a pulmonologist whose qualifications to make an opinion as to whether Baca's exposure to asbestos during his employment with BNSF caused him to develop asbestosis are not at issue. In support of his claim, Baca produced a report from Dr. Schonfeld, in which Dr. Schonfeld summarized his opinion concerning that question.
Dr. Schonfeld's report states that he interviewed and examined Baca. The report sets forth the history of Baca's exposure to asbestos, which was relayed to Dr. Schonfeld by Baca. According to the report, Baca's working career has almost exclusively been as a railroad worker. Baca was laid off from the railroad in approximately 1965, so for a few months he worked for the Arizona Highway Department, where he used asbestos gloves when removing hot objects from a stove. But other than those few months in 1965, the report says, Baca worked for the railroad from 1964 to 1996.
Baca told Dr. Schonfeld that on an intermittent basis for about six months in 1964, he helped demolish a roundhouse in Winslow, Arizona, and he would sweep up asbestos without the use of a mask or respirator. Baca also told Dr.Schonfeld that he rode on diesel engines that had asbestos in the ceiling and that the asbestos dust would fall on him. Dr. Schonfeld further stated that Baca remembered asbestos was in the brake hoses and that for about six months, he fired the asbestos-clad steam generator on the diesel passenger units and performed repairs on the steam generator on an as-needed basis. Baca further told Dr. Schonfeld that he worked in refrigerator cars that were lined with asbestos and that he would clean them out and sweep up asbestos. Finally, Baca told Dr. Schonfeld that he was present while other employees were changing brake shoes and that he was in other places where employees were working on and repairing the railroad's rolling stock.
Dr. Schonfeld noted that Baca had never smoked. He performed a physical examination on Baca, which revealed that his lungs "were clear to auscultation and percussion." He also noted a report from Dr. Donald Breyer, who on August 30, 2011, had done a B-reading of a chest x-ray that had been performed on Baca on August 16, 2011.5 Dr. Schonfeld relayed Dr. Breyer's findings, stating Dr. Breyer concluded the x-ray showed irregular interstitial infiltrates in both mid- and lower-lung zones having a "shape and size of s/s and a profusion of 1/0" and that Dr. Breyer had not noted any pleural abnormalities. Dr. Schonfeld also noted that Baca had undergone pulmonary function tests in 2012 and that the results were normal.
Based upon all of this information, Dr. Schonfeld concluded as follows:
Given [Baca's] history of significant exposures to asbestos in the workplace and given an appropriate latency and given the roentgenographic findings described above, I feel with a reasonable degree of medical certainty that Mr. Baca is diagnosed as having bilateral asbestosis. I feel with a reasonable degree of medical certainty that this diagnosis is causally related to his workplace exposures to asbestos as noted above.
BNSF subsequently filed a motion to exclude Dr. Schonfeld's causation opinion.
In its motion to exclude, BNSF argued that Dr. Schonfeld's causation opinion was inadmissible because it was unreliable.6 See Daubert, 509 U.S. at 589 (); Robinson, 923 S.W.2d at 550, 556-57 (). It advanced two grounds for why that opinion was unreliable. First, BNSF argued Dr. Schonfeld's causation opinion was not based on a reliable evidentiary foundation. Second, it argued that Dr. Schonfeld's methodology was unreliable. In making these two arguments, BNSF acknowledged FELA's featherweight causation standard. But it asserted that FELA, though relaxing the standard of causation relative to a common-law negligence claim, does not similarly relax the procedural standards fordetermining the threshold issue of whether an expert's causation opinion is admissible. Thus, even though this is a FELA case, BNSF argued, Dr. Schonfeld's causation opinion must meet state procedural requirements for reliability to be admissible, including the requirements of Daubert and Robinson. See Kan. City S. Ry. Co. v. Oney, 380 S.W.3d 795, 800 (Tex. App.—Houston [14th Dist.] 2012, no pet.) .
Having argued that the trial court was required to apply state procedural standards of reliability to Dr. Schonfeld's opinion, BNSF then discussed the standards it believed apply in this case. Citing Austin v. Kerr-McGee Refining Corp., 25 S.W.3d 280, 292 (Tex. App.—Texarkana 2000, no pet.), it noted that a plaintiff in a toxic tort case must establish both general and specific causation. BNSF focused on specific causation in...
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