Knowles v. Burlington Northern R. Co.

• Decision Date: 30 July 1993
• Docket Number: No. 68929,68929
• Citation: 856 P.2d 1352,18 Kan.App.2d 608
• Parties: Robert KNOWLES, Appellant, v. BURLINGTON NORTHERN RAILROAD COMPANY, Appellee/Cross-Appellant, v. ASPLUNDH TREE EXPERT COMPANY, Appellee.
• Court: Kansas Court of Appeals

Page 1352

856 P.2d 1352

18 Kan.App.2d 608

Robert KNOWLES, Appellant, v. BURLINGTON NORTHERN RAILROAD COMPANY, Appellee/Cross-Appellant, v. ASPLUNDH TREE EXPERT COMPANY, Appellee.

No. 68929.

Court of Appeals of Kansas.

July 30, 1993.

Syllabus by the Court

1. In a Federal Employers' Liability Act (45 U.S.C. § 51 et seq. [1988] action, the plaintiff has a lower standard of proof of causation than under a common-law tort theory.

2. The relaxed standard of proof of causation under the Federal Employers' Liability Act does not obviate the need for expert opinion testimony in certain cases. When the conclusion of causation is not within the common knowledge of a jury, expert testimony is required.

3. A Federal Employers' Liability Act plaintiff need only present a minimum amount of evidence in order to avoid a summary judgment motion.

Davy C. Walker, Kansas City, and Jon G. Carlson, and Daniel Cohen, of Jon G. Carlson & Associates, P.C., Edwardsville, IL, for appellant.

Brett C. Coonrod, of Deacy & Deacy, Prairie Village, for appellee/cross-appellant.

Paul Hasty, Jr., of Wallace, Saunders, Austin, Brown and Enochs, Chartered, Overland Park, for appellee.

Before BRAZIL, P.J., and RULON and GREEN, JJ.

GREEN, Judge:

This litigation arises out of plaintiff's claim of exposure to toxic chemicals while in the employment of defendant Burlington Northern Railroad Company (hereafter "Burlington"). Robert L. Knowles, the plaintiff, sued Burlington, alleging that he contracted cancer after being exposed to various harmful chemicals. He also claims that he was saturated with a defoliant sprayed by Asplundh Tree Expert Company (hereafter "Asplundh") in May 1988. Burlington filed a third-party suit against Asplundh for indemnity in spraying plaintiff with the defoliant. The district court granted Asplundh summary judgment on Burlington's indemnity claim. Burlington was also granted summary judgment on plaintiff's claim. This is an appeal by the plaintiff from the summary judgment in favor of Burlington. In addition, Burlington cross-appeals against Asplundh for indemnity should Burlington's summary judgment be reversed.

In May 1988, plaintiff was sprayed with defoliant chemicals while working as a signalman for Burlington in Rosedale, Kansas. Under a contract with Burlington, Asplundh was responsible for spraying the weeds and plants at that location. Four months later, plaintiff was diagnosed with non-Hodgkins lymphoma, commonly referred to as cancer of the lymph nodes.

The plaintiff filed a Federal Employers' Liability Act (45 U.S.C. § 51 et seq. [1988] (hereafter "FELA") action against Burlington on July 24, 1990, alleging the exposure to defoliant had caused his cancer. On September 24, 1990, plaintiff filed an amended petition making the additional allegation that he had been exposed to toxic chemicals and diesel fumes on numerous occasions while employed with Burlington and that these exposures as well as the May 1988 incident at Rosedale caused his cancer. Burlington filed a third-party cause of action against Asplundh seeking contractual and implied indemnity for liability incurred as a result of plaintiff's FELA action.

Plaintiff's first expert witness disclosure, filed on June 17, 1992, designated three experts, among them Melvin Reuber, M.D. The disclosure stated, "Dr. Reuber is expected to testify that Plaintiff contracted cancer as a result of his contact with hazardous chemicals and substances during his employment with Defendant."

Burlington and Asplundh moved to strike the expert witness disclosure for failure to comply with the requirements of K.S.A.1992 Supp. 60-226(b)(4)(A)(i). Plaintiff then filed a supplemental expert witness disclosure on July 6, 1992. With regard to Dr. Reuber, the supplemental disclosure listed the information provided to Dr. Reuber upon which his opinion was based. Attached to the supplemental disclosure were 140 pages of documents related to Asplundh's contract with Burlington and chemical and safety information on the defoliant products Asplundh had used in performance of the contract. However, the supplemental disclosure did not contain a summary of the grounds for Dr. Reuber's aforementioned opinion.

Again, Asplundh and Burlington moved to strike plaintiff's expert witness disclosure. Following a hearing on July 10, 1992, the trial court denied the motions to strike but restricted plaintiff's experts to the opinions and facts contained in his expert witness disclosure.

Burlington then filed its expert witness disclosure on September 2, 1992. In its disclosure, Burlington stated its two experts would testify that exposure to the defoliants, diesel fumes, and creosote did not cause plaintiff's lymphoma. This disclosure also did not include a summary of the grounds for the experts' opinions.

On September 10, 1992, the trial court granted summary judgment in favor of Asplundh on Burlington's third-party claim. The next day, Burlington moved for summary judgment on plaintiff's FELA claim. Plaintiff's counsel stated in court that if Asplundh was properly granted summary judgment, Burlington was entitled to summary judgment since plaintiff's experts intended to testify that the spraying incident in May 1988 was the only cause of plaintiff's illness. As we understand, the trial court found plaintiff was abandoning his claim that previous exposure to diesel fumes and other substances, while working for defendant, contributed to his illness. The trial court then granted defendant summary judgment on plaintiff's FELA claim.

The plaintiff first argues that expert testimony is not required to prove causation in FELA cases. The plaintiff cites Sentilles v. Inter-Caribbean Corp., 361 U.S. 107, 109, 80 S.Ct. 173, 175, 4 L.Ed.2d 142 (1959), to support his argument.

The plaintiff in Sentilles was a seaman who brought suit under the Jones Act, now 46 App. U.S.C. § 688 (1988), the sister act of FELA. At trial, expert medical evidence was presented which suggested plaintiff's tuberculosis could have been aggravated by defendant's negligence; however, the evidence was less than unanimous. 361 U.S. at 109, 80 S.Ct. at 175. Three doctors testified as expert witnesses. None testified that plaintiff's tuberculosis was in fact caused by the accident which occurred during the course of his employment with defendant. One expert testified that the illness might be aggravated by the accident. Another expert testified that the accident and plaintiff's preexisting diabetes most likely aggravated the tuberculosis, but he could not determine between the two factors which was more culpable for plaintiff's current condition. The last expert, who did not examine the plaintiff, suggested that the accident probably aggravated plaintiff's condition. 361 U.S. at 109, 80 S.Ct. at 175. Although the causation evidence was extremely weak, the United States Supreme Court still held the evidence sufficient to support a verdict in favor of the plaintiff.

Although Sentilles illustrates the sparse amount of evidence required on causation in order to send that issue to a jury, its holding does not obviate the need to provide expert testimony to prove causation in all FELA and Jones Act cases.

Even when acknowledging the lower standard of proof in FELA cases, the United States Court of Appeals for the First Circuit held that expert testimony is needed in certain cases. In Moody v. Maine Cent. R. Co., 823 F.2d 693, 695-96 (1st Cir.1987), the court recognized the relaxed standard of proof in FELA cases but ruled that expert testimony was required to prove plaintiff's case. The plaintiff in Moody alleged that on the job harassment caused his angina. The court upheld a summary judgment in defendant's favor because none of the doctors in the case had indicated that the harassment caused the angina. In support...