Hirsch v. Csx Transp. Inc.

• Decision Date: 08 September 2011
• Docket Number: No. 09–4548.,09–4548.
• Citation: 656 F.3d 359
• Parties: Jonathan HIRSCH; Jeanne Myers, Individually and on behalf of all others similarly situated, Plaintiffs,Christopher Mann, Individually and on behalf of all others similarly situated, Plaintiff–Appellant,v.CSX TRANSPORTATION, INC., Defendant–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

656 F.3d 359

Jonathan HIRSCH; Jeanne Myers, Individually and on behalf of all others similarly situated, Plaintiffs,Christopher Mann, Individually and on behalf of all others similarly situated, Plaintiff–Appellant,

v.CSX TRANSPORTATION, INC., Defendant–Appellee.

No. 09–4548.

United States Court of Appeals, Sixth Circuit.

Argued: April 21, 2011.Decided and Filed: Sept. 8, 2011.

ARGUED: Christopher D. Stock, Waite, Schneider, Bayless & Chesley Co., L.P.A., Cincinnati, Ohio, for Appellant. Scott L. Winkelman, Crowell & Moring LLP, Washington, D.C., for Appellee. ON BRIEF: Christopher D. Stock, Paul M. De Marco, Waite, Schneider, Bayless & Chesley Co., L.P.A., Cincinnati, Ohio, John R. Climaco, Climaco, Lefkowitz, Peca, Wilcox & Garofoli Co., L.P.A., Cleveland, Ohio, Frank E. Piscitelli, Jr., Frank Piscitelli Co., L.P.A., Cleveland, Ohio, for Appellant. Scott L. Winkelman, William L. Anderson, Beth M. Kramer, April N. Ross, Crowell & Moring LLP, Washington, D.C., Mary M. Bittence, Baker Hostetler, Cleveland, Ohio, for Appellee. Mark A. Behrens, Christopher E. Appel, Shook, Hardy & Bacon L.L.P., Washington, D.C., for Amici Curiae.Before: KENNEDY, BOGGS, and SUTTON, Circuit Judges.

OPINION

BOGGS, Circuit Judge.

Following a train crash that allegedly exposed a small town to cancer-causing agents, the Plaintiffs–Appellants sought damages on behalf of a putative class. The district court granted summary judgment for the train company, CSX Transportation (CSX), because the Plaintiffs had not established general or specific causation and, as a matter of law, any increased risk of cancer or other diseases was too insignificant to warrant the court's ordering a lengthy period of medical monitoring. We affirm.

I

On October 10, 2007, thirty-one cars of a CSX train derailed and caught fire near the town of Painesville, Ohio. The fire was serious. It lasted nearly three days and emergency personnel removed about 1,300 people from the surrounding half-mile radius. Most of what burned in this fire was non-toxic, but nine of the cars were carrying hazardous materials. The Plaintiffs claim that 2,800 tons of burning material were sent into the surrounding atmosphere, and that the fire produced toxic chemicals even from non-toxic cargo—in particular, the Plaintiffs claim that the level of dioxin in their town was significantly elevated.

A day after the fire began (and presumably while it was still burning), several residents of the town brought the present suit against CSX, initially alleging causes of action in negligence, nuisance, strict liability, trespass, and medical monitoring under Ohio law. CSX eventually moved to dismiss the Plaintiffs' complaint and the district court dismissed everything except the negligence claim. Although the district court did not allow the Plaintiffs to pursue an independent cause of action for medical monitoring, the court was clear that court-supervised medical monitoring was available as an equitable remedy under Ohio law. See Wilson v. Brush Wellman, 103 Ohio St.3d 538, 817 N.E.2d 59, 63–65 (2004); see also Day v. NLO, 851 F.Supp. 869, 880 (S.D.Ohio 1994) (“[W]here periodic future medical treatment[s], including tests, are required these have traditionally been granted as compensable future medical expenses.”). After discovery, CSX moved for summary judgment, claiming that the Plaintiffs had failed to adduce evidence sufficient to create a genuine issue of material fact requiring a trial.

The Plaintiffs responded by pointing out the evidence in their favor. CSX had already stipulated that it breached a duty when its train derailed. Thus, the Plaintiffs needed only to create an issue of material fact on the other element of negligence under Ohio law—that CSX's breach proximately caused injury to them. Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75, 472 N.E.2d 707, 710 (1984).

To show causation and injury, the Plaintiffs hired several experts. Marco Kaltofen, P.E., is a chemical engineer who tested the community for levels of dioxin. He assumed a normal background level of dioxin at 4 parts per trillion (ppt) and took measurements around Painesville to compare with this baseline. His measurements showed elevated levels at the crash site (10.7 ppt) and a range within homes in the area from 11.7 ppt to 274 ppt. Dr. John Jacobus, Ph.D., is a chemist who speculated as to the amount and content of the cargo burned. Dr. Erno Sajo, Ph.D., is a physicist who plotted the dispersion and concentration of the chemicals from the fire on a map for the purpose of showing which members of the community were exposed to what levels of dioxin. Dr. Sajo used figures from Dr. Jacobus's report as well as meteorological data to make these projections. Dr. James Kornberg, M.D., used this map to determine who in the community was likely exposed to levels of dioxin above what the EPA considers acceptable—levels at which the risk of cancer increases by one case in one million exposed persons.

After reviewing this and other evidence, the district court granted summary judgment to CSX. The court held that the Plaintiffs had failed to meet their burden to show that “(1) the dioxin[s] released into the air by the fire are known causes of human disease” and “(2) the named Plaintiffs were exposed to ... dioxin in an amount sufficient to cause a significantly increased risk of disease such that a reasonable physician would order medical monitoring.” The Plaintiffs timely appealed.

II

We review a grant of summary judgment de novo, construing the evidence and drawing all reasonable inferences in favor of the nonmoving party. Martin v. Cincinnati Gas & Elec. Co., 561 F.3d 439, 443 (6th Cir.2009). “[T]he judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). To survive summary judgment, the “mere existence of a scintilla of evidence in support” of a party's position will not suffice. Shropshire v. Laidlaw Transit, Inc., 550 F.3d 570, 576 (6th Cir.2008) (quoting Anderson, 477 U.S. at 252, 106 S.Ct. 2505). Rather, “ ‘there must be evidence on which the jury could reasonably find for the’ non-moving party.” White v. Baxter Healthcare Corp., 533 F.3d 381, 390 (6th Cir.2008) (quoting Anderson, 477 U.S. at 252, 106 S.Ct. 2505). In other words, “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’ ” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

In a diversity case, such as this one, “we follow the law of Ohio as announced by that state's supreme court.” Miles v. Kohli & Kaliher Associates, Ltd., 917 F.2d 235, 241 (6th Cir.1990). However, “[w]here the state supreme court has not spoken, our task is to discern, from all available sources, how that court would respond if confronted with the issue.” Ibid. (citing Bailey v. V. & O Press Co., 770 F.2d 601, 604 (6th Cir.1985)).

III

This case comes to us in a rather unusual posture. The Plaintiffs presented a number of experts supporting their positions, and there were no motions or rulings to exclude any of them. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Nonetheless, the district court granted summary judgment for CSX, dismissing the expert reports (though relevant) as insufficient to create a genuine issue of material fact. The Plaintiffs argue that this dismissal was inappropriate without a Daubert ruling. We therefore begin by distinguishing the admissibility of evidence from its sufficiency. Even where an expert's evidence is ruled admissible under the Daubert standards, a district court remains free to decide that the evidence amounts to no more than a mere scintilla. Daubert, 509 U.S. at 596, 113 S.Ct. 2786. In that case, the court remains free to grant summary judgment. Ibid.; see also In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717, 750 n. 21 (3d Cir.1994) (noting that even if expert evidence is admissible, the court may still grant summary judgment where that evidence amounts to no more than a scintilla). Thus, a close review of the expert evidence is still appropriate.

We next turn to the merits of this case. To succeed on a negligence claim in Ohio, the Plaintiffs must show the basic elements taught to every first-year law student: duty; breach; causation; and damages. This is a complicated case, but negligence is a simple concept. If Dan drops a banana peel on the sidewalk and Pete slips on the peel and breaks his hip, Pete must prove four things at trial to recover for his hip injury: 1) that Dan should not have dropped the banana peel on the sidewalk (duty); 2) that he nonetheless did (breach); 3) that Pete's broken hip was suffered because of the banana peel (causation); and 4) that Pete actually broke his hip (damages). What makes the present claim conceptually unique is that the Plaintiffs—though no doubt distraught from the stress of a train crash and evacuation—have, even by their own admission, as of now not suffered any discernable compensable injury. Rather, their alleged injuries consist solely of the increased risk of—and corresponding cost of screening for—certain diseases that, according to Plaintiffs, are more likely to occur as a result of the train crash. See Friends for All Children, Inc. v. Lockheed Aircraft Corp., 746 F.2d 816, 825–26 (D.C.Cir.1984). Assuming that Ohio would recognize such an injury, the remedy could be a...