Bowers v. CSX Transp.

• Docket Number: A23A0839
• Decision Date: 03 November 2023
• Parties: BOWERS v. CSX TRANSPORTATION, INC.
• Court: Georgia Court of Appeals

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BOWERS
v.
CSX TRANSPORTATION, INC.

No. A23A0839

Court of Appeals of Georgia

November 3, 2023

MARKLE, JUDGE

Luther Bowers was an employee of CSX Transportation, Inc. for more than 30 years, during which he was continuously exposed to diesel fuel and exhaust, asbestos, and silica dust. After learning that he had terminal lung cancer, he filed suit against CSX under the Federal Employers' Liability Act (FELA), 45 USCA § 51 et seq., alleging that the railroad company's negligence in handling toxic substances, and its failure to warn him of the dangers, caused or contributed to his lung cancer.^[1]

In support of his claim, and to establish causation, Bowers offered the expert testimony of Dr. Theron Blickenstaff, a physician board-certified in preventative and

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occupational medicine. CSX moved to exclude Blickenstaff's testimony under OCGA § 24-7-702 ("Rule 702"), and moved for summary judgment on the ground that Luther failed to establish causation. Following a hearing, the trial court granted the motion to exclude, and having excluded the causation expert, the trial court granted CSX's motion for summary judgment.

Bowers now appeals, arguing that the trial court erred by excluding Blickenstaff's expert testimony because it misapplied Rule 702. For the reasons that follow, and applying the deference we are required to give the trial court's findings in its role as gatekeeper under Rule 702, we affirm.

"Whether expert testimony ought to be admitted under OCGA § 24-7-702 is a question committed to the sound discretion of the trial court, so we will not disturb the trial court's determination absent an abuse of discretion."^[2] (Citation and punctuation omitted.) MyFamilyDoc v. Johnston, 366 Ga.App. 459, 464 (2) (883 S.E.2d 404) (2023).

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So viewed, the record shows that Luther worked for CSX for more than 30 years in numerous capacities, including as a trackman, track inspector, machine operator, and road master. In these positions, he built and repaired railroads, which resulted in frequent exposure to diesel fuel and exhaust, asbestos, and silica dust. Luther was also a lifelong smoker, averaging multiple packs a day for 50 years. After he retired from CSX, Luther was diagnosed with terminal lung cancer. He then filed suit against CSX, and submitted Blickenstaff's testimony to establish that his exposure to toxins while working for CSX was the cause of his cancer.

Blickenstaff explained that exposure to diesel fuel and exhaust, asbestos, and silica dust causes lung cancer.^[3] To determine whether these toxins caused Luther's specific cancer, Blickenstaff relied on a report provided by Dr. Vance, an industrial hygienist who was involved in Luther's case. Based on Luther's testimony in his deposition and conversations with Luther's co-workers, Vance concluded that Luther had been exposed to more than background levels of diesel fuel and exhaust, asbestos, and silica, and that these toxins, combined with Luther's smoking, "multipl[ied]" the risk he would develop cancer.

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According to Blickenstaff, it was a "reasonable assumption" that exposure to these toxins contributed to Luther's lung cancer, as any exposure to toxic substances increases the risk of cancer. In support, he pointed to seven studies, four of which linked cancer to exposure to these toxins.

Blickenstaff then explained that he made a differential diagnosis, considering all of Luther's risk factors and concluding that the occupational exposures and smoking were significant and made it highly unlikely there was any other cause. He opined that the exposure to the toxins while working for CSX increased Luther's risk of getting cancer and thus caused his cancer to a reasonable degree of medical certainty.

Although he reached this conclusion, Blickenstaff admitted that he was unable to confirm the level of exposure that would be necessary to cause lung cancer, how much toxin Luther was exposed to, or how that quantity compared to the exposures in the various studies he relied on. Blickenstaff noted that CSX had never conducted any air quality studies to determine the amount of exposure. Blickenstaff also could not identify the various jobs Luther held and could not link the amount of exposure to any specific railroad work.

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He further admitted that most people exposed to diesel fuel and exhaust do not get lung cancer. Despite his opinion that Luther's exposure to the toxins caused his cancer, Blickenstaff acknowledged that a reasonable scientist could find that Luther's smoking contributed more to cancer than the diesel exposure, and he conceded that it was possible that smoking was the only cause of Luther's cancer.

CSX moved to exclude Blickenstaff's opinion and for summary judgment. Following a hearing, the trial court excluded the testimony because it did not meet the standard for admissibility under Rule 702, and granted summary judgment to CSX. Bowers now appeals, arguing that the trial court erred by granting these motions. According to Bowers, his expert was not required to quantify the exact amount of exposure necessary to cause cancer, or the amount to which Luther was exposed, especially given that CSX never performed air quality measurements. Bowers further challenges the trial court's rejection of the expert's differential diagnosis and reliance on various studies, arguing that the trial court focused on the results rather than the methodology. Finally, Bowers argues that the trial court applied the wrong legal standard by concluding that the testimony would not be helpful to the jury.

Before we consider the admissibility of the expert's testimony, we begin by setting out the general standard for liability in FELA cases. "Under FELA, railroad

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companies are liable for injuries to their employees that result in whole or in part from company negligence...." (Citations and punctuation omitted.) Keen v. Ga. Southern &Fla. R. Co., 354 Ga.App. 787, 788-789 (1) (840 S.E.2d 529) (2020).

To bring a claim under FELA, a plaintiff must prove the traditional common law elements of negligence: duty, breach, foreseeability, and causation. Whether the defendant has a duty to the plaintiff is a question of law to be decided by the court. The other three elements -foreseeability, breach, and causation - are questions of fact to be decided by a jury, assuming that there is evidence in the record creating a genuine issue for trial.

(Citation and punctuation omitted.) Id. at 789 (1).

The causation element in a toxic tort case requires the plaintiff to "prove both general causation, that a substance is capable of causing a particular injury or condition, and specific causation, that a substance made a meaningful contribution to a particular individual's injury." (Citations omitted.) Wadley v. Mother Murphy's Laboratories, 357 Ga.App. 259, 263 (1) (850 S.E.2d 490) (2020). CSX does not challenge the testimony as to general causation. Thus, the only issue is whether Blickenstaff's testimony was admissible to show specific causation.

It is well-settled that the standard of proof as to causation in a FELA case is relaxed, and a plaintiff need only show that the employer's negligent conduct "played

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any part, even the slightest" in causing the injury. (Citation and punctuation omitted; emphasis in original.) Keen, 354 Ga.App. at 789 (1); Smith v. CSX Transp., 343 Ga.App. 508, 510 (1) (a) (806 S.E.2d 890) (2017). But, the standard for admitting expert testimony is the same in a FELA case as it is in any other tort case; a plaintiff must still come forward with admissible expert testimony on specific causation.^[4] Smith, 343 Ga.App. at 510-511 (1) (a); see also Shiver v. Ga. &Fla. Railnet, 287 Ga.App. 828, 829 (1) (652 S.E.2d 819) (2007) ("in a FELA case involving allegations of injury due to chemical exposure, the plaintiff must show specific causation through expert testimony."); Wills v. Amerada Hess Corp., 379 F.3d 32, 47 (III) (B) (2d Cir. 2004) ("[t]he standards for determining the reliability and credibility of expert testimony are not altered merely because the burden of proof is relaxed.... [I]n the context of FELA claims, the standard of causation and the standards for admission of expert testimony under the Federal Rules of Evidence are distinct issues and do not affect one another.") (citation and punctuation omitted). Therefore, even in a FELA case, the admissibility of expert testimony is governed by Rule 702, which requires that

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"(1) it is based upon sufficient facts or data; (2) it is the product of reliable principles and methods; and (3) the expert witness has applied the principles and methods reliably to the facts of the case." Emory Univ. v. Willcox, 355 Ga.App. 542, 543 (1) (844 S.E.2d 889) (2020) (citing Rule 702 (b)).^[5]

Under [Rule 702], it is the role of the trial court to act as a gatekeeper of expert testimony. In this role, the trial court assesses both the witness'[s] qualifications to testify in a particular area of expertise and the relevancy and reliability of the proffered testimony. [This is a] "rigorous three-part inquiry" in which the trial court considers whether: (1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable . . .; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue.

(Citations and punctuation omitted). Id. at 543 (1); see also Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (113 S.Ct. 2786, 125 L.Ed.2d 469) (1993).

In making this assessment, however, the trial court may not exclude an otherwise sufficient expert opinion simply because it

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believes that the opinion is not - in its view - particularly strong or persuasive. The

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