Harris v. CSX Transp., Inc.

• Decision Date: 13 November 2013
• Docket Number: No. 12–1135.,12–1135.
• Court: West Virginia Supreme Court
• Parties: Deborah Kay HARRIS, Administratrix of the Estate of Ronald K. Harris, Deceased, Plaintiff Below, Petitioner v. CSX TRANSPORTATION, INC., Defendant Below, Respondent.

232 W.Va. 617

753 S.E.2d 275

Deborah Kay HARRIS, Administratrix of the Estate of Ronald K. Harris, Deceased, Plaintiff Below, Petitioner

v.CSX TRANSPORTATION, INC., Defendant Below, Respondent.

No. 12–1135.

Supreme Court of Appeals of

West Virginia.

Submitted Oct. 15, 2013.

Decided Nov. 13, 2013.

Syllabus by the Court

1. When a circuit court excludes expert testimony as unreliable under the Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Wilt v. Buracker, 191 W.Va. 39, 443 S.E.2d 196 (1993), gatekeeper analysis, we will review the circuit court's method of conducting the analysis de novo.

2. When a trial court is called upon to determine the admissibility of scientific expert testimony, in deciding the “reliability” prong of admissibility the focus of the trial court's inquiry is limited to determining whether the expert employed a methodology that is recognized in the scientific community for rendering an opinion on the subject under consideration. If the methodology is recognized in the scientific community, the court should then determine whether the expert correctly applied the methodology to render his or her opinion. If these two factors are satisfied, and the testimony has been found to be relevant, and the expert is qualified, the expert may testify at trial.

R. Dean Hartley, Julie R. Magers, J. Michael Prascik, Hartley & O'Brien, P.L.L.C., Wheeling, WV, for Petitioner.

James W. Turner, Steptoe & Johnson, Huntington, WV, Andrew E. Tauber, Brian J. Wong, Mayer Brown LLP, Washington, D.C., for Respondent.

DAVIS, Justice:

Deborah Kay Harris, administratrix of the Estate of Ronald K. Harris (“Petitioner”), appeals an order of the Circuit Court of Marshall County granting summary judgment in favor of CSX Transportation, Inc. (“CSX”). The circuit court granted summary judgment after ruling that Petitioner was precluded from calling her three expert witnesses at trial. The dispositive issue presented by the Petitioner in this appeal is whether the circuit court committed error in finding the scientific testimony of Petitioner's three expert witnesses was not reliable.¹ After a careful review of the briefs, the record submitted on appeal and listening to the arguments of the parties, we reverse and remand this case.

I.FACTUAL AND PROCEDURAL HISTORY

This action was originally filed by Ronald K. Harris under the Federal Employers' Liability Act ² and the Locomotive Inspection Act ³ against his employer, CSX.⁴ The complaint alleged that Mr. Harris' exposure to diesel exhaust fumes while employed by CSX caused him to develop a type of cancer called multiple myeloma. While the case was pending, Mr. Harris died as a result of the cancer. Petitioner, Mr. Harris' wife and administratrix of his estate, was substituted as the plaintiff. Petitioner amended the complaint to allege that Mr. Harris' death resulted from his exposure to diesel exhaust fumes.⁵

When the parties concluded expert witness discovery, CSX filed a motion to exclude the testimony of Petitioner's three expert witnesses because their methodology was not reliable. At the request of CSX, the trial court held an evidentiary hearing regarding the admissibility of Petitioner's expert witnesses' testimony. The evidentiary hearing lasted two days. During the hearing, Petitioner called her three experts, Dr. Peter Infante, Ph.D.; Dr. Lawrence Goldstein, Ph.D.; and Dr. Brian Durie, M.D. CSX called two expert witnesses: Dr. Peter Shields, M.D. and Dr. Laura Green, Ph.D. These evidentiary hearings in West Virginia are commonly referred to as “ Daubert/ Wilt ” hearings.

At the conclusion of the two-day evidentiary hearing, the circuit court entered three orders excluding Petitioner's experts' testimony. The circuit court entered findings of fact which, in essence, determined that Petitioner failed to prove to the court that diesel exhaust exposure causes multiple myeloma. As a result of not having an expert, Petitioner agreed with CSX to jointly move for summary judgment in CSX's favor so that Petitioner could appeal the adverse expert witness rulings. The circuit court entered an order granting summary judgment. This appeal followed.

II.STANDARD OF REVIEW

In this proceeding, the circuit court granted summary judgment in favor of CSX after excluding the testimony of Petitioner's expert witnesses. We stated in Syllabus point 1 of Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994), that “[a] circuit court's entry of summary judgment is reviewed de novo.” The parties agree. Without expert testimony by the Petitioner, summary judgment is appropriate. Consequently, the dispositive ruling in this case is not the summary judgment order. It is the orders precluding Petitioner's three experts from testifying. If those orders fail, summary judgment is not appropriate.

As a general matter, we have long held that “[t]he admissibility of testimony by an expert witness is a matter within the sound discretion of the trial court, and the trial court's decision will not be reversed unless it is clearly wrong.” Syl. pt. 6, Helmick v. Potomac Edison Co., 185 W.Va. 269, 406 S.E.2d 700 (1991). However, we have indicated, and so hold, that “when a circuit court excludes expert testimony as unreliable under the [Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); and Wilt v. Buracker, 191 W.Va. 39, 443 S.E.2d 196 (1993),] gatekeeper analysis, we will review the circuit court's method of conducting the analysis de novo.” San Francisco v. Wendy's Int'l, Inc., 221 W.Va. 734, 740, 656 S.E.2d 485, 491 (2007) (citations omitted).

With these standards in mind, we turn to the issues presented by this appeal.

III.DISCUSSION

In order to adequately address the dispositive issue in this case and give guidance to trial judges in future cases similar to the instant matter, we have outlined our discussion as follows: (1) general principles of Rule 702; (2) the nature of multiple myeloma; (3) epidemiological methodology; (4) toxicological methodology; (5) weight of the evidence methodology; (6) Bradford Hill methodology; (7) qualification, methodology and opinion of the expert witnesses; and (8) the circuit court's orders excluding the testimony of Petitioner's experts.

A. General Principles of Rule 702

Rule 702 of the West Virginia Rules of Evidence provides in full that, “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.” “Rule 702 reflects an attempt to liberalize the rules governing the admissibility of expert testimony.” Weisgram v. Marley Co., 169 F.3d 514, 523 (8th Cir.1999). What this means is that “[t]he rule ‘is one of admissibility rather than exclusion.’ ” In re Flood Litig. Coal River Watershed, 222 W.Va. 574, 581, 668 S.E.2d 203, 210 (2008) (quoting Arcoren v. United States, 929 F.2d 1235, 1239 (8th Cir.1991)). “Disputes as to the strength of an expert's credentials, mere differences in the methodology, or lack of textual authority for the opinion go to weight and not to the admissibility of their [sic] testimony.” Gentry v. Mangum, 195 W.Va. 512, 527, 466 S.E.2d 171, 186 (1995) (citation omitted).

The decisions of this Court have “explained that circuit courts must conduct a two-part inquiry under Rule 702 and ask: (1) is the witness [qualified as] an expert; and, if so, (2) is the expert's testimony relevant and reliable?” San Francisco v. Wendy's Int'l, Inc., 221 W.Va. at 741, 656 S.E.2d at 492 (citations omitted). See also Robin Jean Davis, Admitting Expert Testimony in Federal Courts and Its Impact on West Virginia Jurisprudence, 104 W. Va. L.Rev. 485, 513 (2002) (“Trial courts are required to assess scientific expert testimony for relevancy and reliability.”). In Syllabus point 5 of Gentry we set out the steps that a trial court should take to determine if an expert is qualified to render an opinion under Rule 702:

In determining who is an expert, a circuit court should conduct a two step inquiry. First, a circuit court must determine whether the proposed expert (a) meets the minimal educational or experiential qualifications (b) in a field that is relevant to the subject under investigation (c) which will assist the trier of fact. Second, a circuit court must determine that the expert's area of expertise covers the particular opinion as to which the expert seeks to testify.

195 W.Va. 512, 466 S.E.2d 171.

The general standard for determining whether an expert's scientific opinion is relevant and reliable was set out in Syllabus point 2 of Wilt v. Buracker, 191 W.Va. 39, 443 S.E.2d 196:

In analyzing the admissibility of expert testimony under Rule 702 of the West Virginia Rules of Evidence, the trial court's initial inquiry must consider whether the testimony is based on an assertion or inference derived from the scientific methodology. Moreover, the testimony must be relevant to a fact at issue. Further assessment should then be made in regard to the expert testimony's reliability by considering its underlying scientific methodology and reasoning. This includes an assessment of (a) whether the scientific theory and its conclusion can be and have been tested; (b) whether the scientific theory has been subjected to peer review and publication; (c) whether the scientific theory's actual or potential rate of error is known; and (d) whether the scientific theory is generally accepted within the scientific community.

As is illustrated later in this opinion, the trial court's decision to exclude Petitioner's three experts resulted from its determination that the scientific opinions of all three of Petitioner's experts were not reliable. The circuit court's ruling shows a misunderstanding of the meaning of “reliable” under...