McLaughlin v. BNSF Ry. Co.

• Decision Date: 11 February 2020
• Docket Number: 4:18-CV-3047
• Citation: 439 F.Supp.3d 1173
• Court: U.S. District Court — District of Nebraska
• Parties: Bruce MCLAUGHLIN, Plaintiff, v. BNSF RAILWAY COMPANY, formerly known as Burlington Northern & Santa Fe Railway Co., Defendant.

439 F.Supp.3d 1173

Bruce MCLAUGHLIN, Plaintiff,

v.BNSF RAILWAY COMPANY, formerly known as Burlington Northern & Santa Fe Railway Co., Defendant.

4:18-CV-3047

United States District Court, D. Nebraska.

Signed February 11, 2020

Shawn M. Sassaman, Thomas J. Joyce, III, Tobi A. Russeck, Bern, Cappelli Law Firm, Conshohocken, PA, for Plaintiff.

Anne M. O'Brien, Daniel Hassing, William M. Lamson, Jr., Lamson, Dugan Law Firm, Omaha, NE, Stephanie C. Reifers, Boyle, Brasher Law Firm, Memphis, TN, for Defendant.

MEMORANDUM AND ORDER

John M. Gerrard, Chief United States District Judge

Bruce McLaughlin is suing his former employer, BNSF Railway Co., under the Federal Employers Liability Act (FELA), 45 U.S.C. § 51 et seq. , alleging that his workplace exposure to hazardous materials caused his bladder and lung cancers

. The Court previously dismissed McLaughlin's claim as to his bladder cancer, because it was time barred by FELA's 3-year statute of limitations. Filing 59.

BNSF now moves to exclude the testimony of McLaughlin's industrial hygienist (filing 66) and medical causation expert (filing 64) and for summary judgment (filing 62). For the reasons below, BNSF's motion to exclude the expert testimony of McLaughlin's medical causation expert and its motion for summary judgment will be granted.

I. BACKGROUND

McLaughlin worked for BNSF in Lincoln, Nebraska for 39 years, starting in 1976. Filing 37-1 at 4, 15. He started as a helper, but was quickly upgraded to a carman and held that position until he retired in March of 2015. Filing 37-1 at 24-25, 15. McLaughlin worked about eight years in the Havelock Shops and the remainder of his time at Hobson Yard. Filing 37-1 at 23, 26. During that time he was exposed to various hazardous materials, including dust, welding fumes, diesel fuel, diesel exhaust, and insecticide. See filing 37-1 at 23, 37-38; see also filing 1 at 2. McLaughlin also smoked a pack-and-a-half of cigarettes a day for over 30 years until he quit in 2012. Filing 37-1 at 9-10.

In 2015, McLaughlin was diagnosed with bladder cancer

. Filing 37-1 at 7-8; filing 37-3 at 1. After a radiologic study of his chest in 2017, McLaughlin was diagnosed with lung cancer. Filing 65-2 at 1; filing 37-1 at 7. McLaughlin received treatment for both cancers and is now thankfully cancer-free, but experienced substantial changes to his health that continue to affect his daily life. See filing 37-1 at 19-20.

During the course of this litigation, McLaughlin hired two experts to offer opinions regarding his claims. See generally filing 65-2; filing 67-1. Hernando R. Perez, Ph.D. is an industrial hygiene and occupational health expert who opined regarding McLaughlin's level of workplace exposure to toxins—in particular diesel exhaust and welding fumes. Filing 67-1 at 1. Perez spoke with McLaughlin, reviewed McLaughlin's deposition testimony, and conducted a literature review. See filing 67-1 at 1, 4, 23-24. Based on his evaluation, he opined that BNSF failed to supply McLaughlin with a reasonably safe place to work. Filing 67-1 at 22.

Marc Wilkenfeld, M.D. offered causality opinions linking McLaughlin's workplace exposure to his bladder and lung cancer

diagnoses. Filing 65-2 at 1. Wilkenfeld reviewed McLaughlin's medical records, the complaint, McLaughlin's answers to BNSF's interrogatories, and McLaughlin's deposition. Filing 65-2 at 1. He also conducted a literature review. Id. According to Wilkenfeld, McLaughlin had an increased lung cancer risk from diesel exhaust exposure independent of either an increased risk from smoking cigarettes or increased risk from asbestos exposure.¹ Filing 65-2 at 5. And Wilkenfeld opined that "the exposure to diesel exhaust and asbestos that Mr. McLaughlin experienced during his work for BNSF was a causative factor in the development of both his bladder and lung cancer." Filing 65-2 at 5.

II. STANDARD OF REVIEW

Summary judgment is proper if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). The movant bears the initial responsibility of informing the Court of the basis for the motion, and must identify those portions of the record which the movant believes demonstrate the absence of a genuine issue of material fact. Torgerson v. City of Rochester , 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). If the movant does so, the nonmovant must respond by submitting evidentiary materials that set out specific facts showing that there is a genuine issue for trial. Id.

On a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts. Id. Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the evidence are jury functions, not those of a judge. Id. But the nonmovant must do more than simply show that there is some metaphysical doubt as to the material facts. Id. In order to show that disputed facts are material, the party opposing summary judgment must cite to the relevant substantive law in identifying facts that might affect the outcome of the suit. Quinn v. St. Louis Cty. , 653 F.3d 745, 751 (8th Cir. 2011). The mere existence of a scintilla of evidence in support of the nonmovant's position will be insufficient; there must be evidence on which the jury could conceivably find for the nonmovant. Barber v. C1 Truck Driver Training, LLC , 656 F.3d 782, 791-92 (8th Cir. 2011). Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. Torgerson , 643 F.3d at 1042.

III. DISCUSSION

FELA imposes upon employers a continuous duty to provide a reasonably safe place to work. Cowden v. BNSF Ry. Co. , 690 F.3d 884, 889 (8th Cir. 2012). FELA is to be liberally construed, but it is not a workers' compensation statute, and the basis of liability is "negligence, not the fact that injuries occur." Consol. Rail Corp. v. Gottshall , 512 U.S. 532, 543, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994). So, McLaughlin must prove the customary common law elements of a negligence claim: duty, breach, foreseeability, and causation. Crompton v. BNSF Ry. Co. , 745 F.3d 292, 296 (7th Cir. 2014) ; Tufariello v. Long Island R. Co. , 458 F.3d 80, 87 (2d Cir. 2006). But the Court applies a relaxed standard of causation under FELA. CSX Transp., Inc. v. McBride , 564 U.S. 685, 692, 131 S.Ct. 2630, 180 L.Ed.2d 637 (2011). The test is simply whether employer negligence played any part, even the slightest, in producing the injury for which damages are sought. Id.

Expert evidence is often required to establish the causal connection between the injury and alleged hazard "unless the connection is a kind that would be obvious to laymen, such as a broken leg

from being struck by an automobile." Brooks v. Union Pac. R.R. Co. , 620 F.3d 896, 899 (8th Cir. 2010) (quoting Moody v. Me. Cent. R.R. Co. , 823 F.2d 693, 695 (1st Cir. 1987) ). Because McLaughlin's lung cancer has no obvious origin, "expert testimony is necessary to establish even that small quantum of causation required by FELA." Id. (quoting Claar v. Burlington N.R.R. Co. , 29 F.3d 499, 504 (9th Cir. 1994) ). And a plaintiff must prove not only that an alleged toxin is capable of causing an injury, but that the toxin caused this particular injury. Myers v. Ill. Cent. R.R. Co. , 629 F.3d 639, 643-44 (7th Cir. 2010) ; Claar , 29 F.3d at 504 ; see also

Edmonds v. Ill. Cent. Gulf R.R. Co. , 910 F.2d 1284, 1288 (5th Cir. 1990) ("plaintiff must show more than a possibility that a causal relation existed"); Mayhew v. Bell S.S. Co. , 917 F.2d 961, 963 (6th Cir. 1990) (quoting Moody , 823 F.2d at 695 ) ("[A]lthough a [FELA] plaintiff need not make a showing that the employer's negligence was the sole cause, there must be a sufficient showing (i.e. more than a possibility ) that a causal relation existed.").

The admissibility of expert testimony is governed by Fed. R. Evid. 702, which provides:

If 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, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Under Rule 702 the trial judge acts as a "gatekeeper" screening evidence for relevance and reliability. Daubert v. Merrell Dow Pharm., Inc. , 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) ; Polski v. Quigley Corp. , 538 F.3d 836, 838-39 (8th Cir. 2008).

The objective of the Daubert inquiry is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field. Am. Auto. Ins. Co. v. Omega Flex, Inc. , 783 F.3d 720, 722 (8th Cir. 2015). And in order to be admissible, expert testimony must be both relevant to a material issue and reliable. Daubert , 509 U.S. at 591, 113 S.Ct. 2786 ; see also Margolies v. McCleary, Inc. , 447 F.3d 1115, 1120 (8th Cir. 2006) ; see Fed. R. Evid. 702.

Daubert established a non-exhaustive checklist for trial courts to use in assessing the reliability of expert testimony, including whether the theory or technique can and has been tested, whether it has been subjected to peer review, whether there is a high known or potential rate of error, and whether the theory or technique enjoys general acceptance within a relevant scientific community. See U.S. v. Holmes , 751 F.3d 846, 850 (8th Cir. 2014) (citing Daubert , 509 U.S. at 592-94, 113 S.Ct. 2786 ). And for the purposes of evaluating...