Lemberger v. Union Pac. R.R. Co.

• Decision Date: 29 May 2020
• Docket Number: 8:18CV64
• Citation: 463 F.Supp.3d 954
• Parties: Daniel LEMBERGER, Plaintiff, v. UNION PACIFIC RAILROAD COMPANY, Defendant.
• Court: U.S. District Court — District of Nebraska

463 F.Supp.3d 954

Daniel LEMBERGER, Plaintiff,

v.UNION PACIFIC RAILROAD COMPANY, Defendant.

8:18CV64

United States District Court, D. Nebraska.

Signed May 29, 2020

Joseph J. Cappelli, Luke Pepper, Shawn M. Sassaman, Tobi A. Russeck, Bern, Cappelli Law Firm, Conshohocken, PA, for Plaintiff.

Anne M. O'Brien, David J. Schmitt, Lamson, Dugan Law Firm, Omaha, NE, for Defendant.

MEMORANDUM AND ORDER

Joseph F. Bataillon, Senior United States District Judge

This matter is before the Court on defendant Union Pacific Railroad Company's ("U.P.") motions to exclude expert testimony under Daubert v. Merrell Dow Pharms. , 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), Filing Nos. 39 and 40, and for summary judgment, Filing No. 41, after oral argument on the motions on May 13, 2020. This is an action under the Federal Employers’ Liability Act ("FELA"), 45 U.S.C. § 51 et seq. The plaintiff, Daniel Lemberger, worked as a track welder at U.P., and/or its predecessors-in-interest, from 1972 to 2014. He alleges that while he was employed at U.P., he was negligently exposed to diesel exhaust and developed leukemia as a result.¹

U.P. first moves to exclude the testimony of Hernando R. Perez, Ph.D., and Arthur Frank, M.D. It argues their testimony is based on studies that do not fit the facts of the case and their opinions are unreliable and inadmissible under Daubert .

In its motion for summary judgment, U.P. first argues that without the expert testimony, the plaintiff cannot establish the general and specific causation necessary to establish liability. U.P. next challenges the plaintiff's evidence on causation, regardless of expert testimony, as a matter of law. It argues the plaintiff cannot establish liability in that he cannot prove exposure to levels of benzene sufficient to cause CML.

I. BACKGROUND

Dr. Hernando Perez is an industrial hygiene and occupational health expert who opined on Lemberger's workplace exposure to diesel exhaust and its component, benzene. Filing No. 49, Ex. 5, Dr. Perez Report. Dr. Perez has a Ph.D. in industrial hygiene from Purdue University and a Master of Public Health degree in environmental and occupational health from Emory University. Id. , Ex. 3, Dr. Perez Curriculum Vitae at 1. He is certified in the comprehensive practice of industrial hygiene by the American Board of Industrial Hygiene and in the practice of safety by the Board of Certified Safety Professionals. Id. He has been employed as Lead Industrial Hygienist and Environmental Hygiene Program Manager for United States Citizenship and Immigration Services in the United States Department of Homeland Security since 2015. Id. at 2. In that capacity, he is responsible for coordination and performance of industrial hygiene activities at all USCIS facilities across the United States. Id. He was employed as full time faculty at the Drexel University School of Public Health from 2004 to 2014 and as Director of the Industrial Hygiene Consulting Service at the School from 2006 to 2014. Id.

In this case, Dr. Perez was asked to offer opinions on Lemberger's working conditions. Filing No. 49, Exhibit 5, Perez Report at 1. Dr. Perez interviewed Lemberger, reviewed Lemberger's deposition, reviewed pleadings and materials supplied by plaintiff's counsel, and performed a literature review. Filing No. 49, Ex. 4, Deposition of Dr. Hernando Perez ("Dr. Perez Dep.") at 174. He reviewed various journal articles, standard textbooks, and information from OSHA, NIOSH, EPA, ATSDR, MSHA, National Cancer Institute (NCI), National Institute of Environmental Health Sciences (NIEHS), and International Agency for Research on Cancer (IARC). Id. , Ex. 5, Dr. Perez Report at 1. He relied, in particular, on data in two studies of diesel exhaust exposure.² Id. at 11 nn. 11 & 12; Filing No. 49, Ex. 6, Woskie Abstract; id. , Ex. 7, Pronk Manuscript.

Dr. Perez also based the qualitative intensity of the diesel exposure on the plaintiff's testimony. Filing No. 49, Ex. 4, Dr. Perez Dep. at 104-05. He testified he was able to estimate a range of exposure from the information provided to him and a review of the literature. Id. at 105.

Dr. Perez states that Lemberger experienced chronic exposure to diesel exhaust during his entire forty-one-year career as a track laborer and track welder for Union Pacific and his average exposure while performing track laborer and track welder duties for Union Pacific were consistent with those in the low to intermediate range of exposed occupations. Filing No. 49, Ex. 5, Dr. Perez Report at 5. Based on his evaluation and his education and experience in the field, Dr. Perez states that U.P. failed to provide a reasonably safe place to work in failing to provide air monitoring or otherwise determine Lemberger's level of exposure to diesel exhaust; failing to provide Lemberger with appropriate personal protective equipment; failing to implement any administrative or engineering controls to reduce or prevent diesel exhaust exposure; and failing to provide adequate warnings, training, and information about the hazards of diesel exhaust. Id. at 10. He further opines that U.P. failed to comply with the OSHA Hazard communication Standard, and the OSHA General Duty Clause, OSHA Act Section 5(a)(1). Id. Dr. Perez concluded that U.P.’s actions fell beneath a reasonable standard of care. Id.

Dr. Arthur Frank, M.D., Ph.D., is board certified in internal medicine and in occupational medicine. He is currently a Professor of Public Health in the Department of Environmental and Occupational Health at Drexel University School of Public Health, a Professor of Medicine at Drexel University School of Medicine, and a Professor of Civil, Architectural and Environmental Engineering at Drexel University College of Engineering. Filing No. 55, Ex. 2, Dr. Arthur Frank Curriculum Vitae at 2-3. For most of his career, he treated patients clinically and he currently supervises nurse practitioners. Id. , Ex. 4, Deposition of Arthur l. Frank, M.D. ("Dr. Frank Dep.") at 33-35. He also testified that in order to be board certified in occupational medicine, he was required to know some toxicology. Id. at 44. He has taken toxicology courses and was a professor of toxicology at the University of Kentucky, from 1983 to 1994. Id. He also stated that he was required to know more epidemiology than most physicians and he has taught epidemiology and has done epidemiological research. Id.

Dr. Frank testified that, in his opinion, Lemberger's exposures to benzene through his employment at the railroad contributed to his developing CML. Id. at 60. In formulating his opinion, Dr. Frank reviewed Lemberger's diagnosis of CML, Dr. Perez's report, and some literature. Id. at 10-14. In particular, he relied on studies by Vlaanderen (a meta-analysis), Aksoy, Glass, Infante, and Blood. Id. at 21-22, 28-29, 116-17. Further, he stated that he reviewed and relied on Dr. Perez's report to document the type of exposure that Lemberger had. Id. at 25-26. Dr. Frank testified as to his understanding of Lemberger's exposures:

What I'm going to testify to is pretty straightforward. The exposures that Mr. Lemberger had, the one that concerns me with regard to his developing CML, is the benzene he was exposed to from his work with diesel, diesel equipment and diesel exhaust, and that would have been contributory to his developing his CML.

Id. at 60. Dr. Frank was questioned at his deposition about the amount of exposure necessary to cause CML, known as dose response.³ Id. at 65. As far as the dose response, he stated

—for most carcinogens, the greater the dose, the greater the likelihood of getting the disease, and that's coupled with the fact that there's no known safe level of exposure to benzene, but background levels by themselves have not been shown to cause this disease, but all of the studies that link CML and benzene have all been in people exposed at a level above background.

Id. at 69. He explained that "nobody knows the dose response. It's a concept. There's no specific dose and a specific rate of response for benzene, for asbestos, for radiation, for whatever." Id. at 71. Further, he testified that dose levels vary and generally are not reflected in specific numbers but are measured in number of years. Id. at 69. Based on Dr. Perez's report, the information provided to him by the plaintiff's attorneys, and his experience and expertise, he stated that Lemberger's exposure would have been more than the background exposure, stating that "if Mr. Lemberger, who was exposed to diesel exhaust and worked with diesel fuel, did this on an ongoing and regular basis for decades while working for the railroad, we know that he was exposed above background." Id. at 70. He also testified he had worked on thousands of cases for forty years and had "never had quantitative data, I have had qualitative data." Id. at 70-71. He stated that he had "knowledge of what the workplace is like and what the exposures are like and are they above background, and that's all I have in this case but I can't give you a number." Id. He stated that the "people that would be responsible for creating those numbers were not Mr. Lemberger, but would have been the Union Pacific for whom he worked." Id. at 71.

Dr. Frank testified that he employed a differential diagnosis approach in determining causation. Id. at 63. He also testified he utilized the Bradford Hill criteria.⁴ Under that framework, he stated

So, for example, did the exposure occur before the disease? The answer is yes. Is it biologically plausible? Well, benzene causes many other hematologic abnormalities, including AML, CLL, probably ALL. There's some evidence for that. It causes multiple myeloma, so blood tissue is affected by benzene. Is there either animal or laboratory data that's supportive? Benzene does cause genetic changes in DNA. That's one of the characteristics of cancer in general and CML in particular. There's a particular chromosome called the Philadelphia

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