McNeel v. Union Pacific R. Co., S-07-155.

• Decision Date: 18 July 2008
• Docket Number: No. S-07-155.,S-07-155.
• Citation: 753 N.W.2d 321,276 Neb. 143
• Parties: Lynn R. McNEEL, Appellant and Cross-Appellee, v. UNION PACIFIC RAILROAD COMPANY, A Corporation, Appellee and Cross-Appellant.
• Court: Nebraska Supreme Court

753 N.W.2d 321

276 Neb. 143

Lynn R. McNEEL, Appellant and Cross-Appellee, v. UNION PACIFIC RAILROAD COMPANY, A Corporation, Appellee and Cross-Appellant.

No. S-07-155.

Supreme Court of Nebraska.

July 18, 2008.

Fredric A. Bremseth, of Bremseth Law Firm, P.C., Minnetonka, MN, and Terrance O. Waite and Keith A. Harvat, of Waite, McWha & Harvat, North Platte, for appellant.

William M. Lamson, Jr., and Anastasia Wagner, of Lamson, Dugan & Murray, L.L.P., Omaha, for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

STEPHAN, J.

Lynn R. McNeel brought this action under the Federal Employers' Liability Act (FELA),¹ alleging that he was injured when he inhaled fumes while employed as a conductor by Union Pacific Railroad Company (Union Pacific). The district court for Lincoln County granted Union Pacific's Daubert/Schafersman² motion to exclude McNeel's expert witnesses from testifying and subsequently entered summary judgment in favor of Union Pacific, from which McNeel appeals. We find no error and affirm.

BACKGROUND

On March 12, 2001, McNeel was working as a conductor on a freight train en route from North Platte, Nebraska, to Cheyenne, Wyoming. He was seated on the left side of the locomotive cab, and engineer LaVerne Golden was seated on the right side. McNeel noticed nothing unusual as the train left North Platte and proceeded through Hershey and Sutherland, Nebraska. As they passed another train approximately 23 miles outside of Ogallala, Nebraska, McNeel noticed what he characterized as "the smell of sticking brakes" which persisted for a few seconds. McNeel opened the side window of the locomotive unit to check both his train and the passing train for smoke, but saw none. There was never any smoke in the locomotive unit in which McNeel was working.

A short time later, McNeel detected "a light smell" which persisted for about 15 seconds. He described it as "more of a putrid smell" which was "different than anything I ever smelled." He detected the odor again several miles later, again for only a few seconds. A few minutes later, McNeel detected the odor for the third time and asked Golden, the engineer, if he could smell it. Golden replied that he could not. But then Golden came over to the side of the unit where McNeel was sitting and confirmed that he could smell the odor. At that point, either McNeel or Golden contacted the dispatcher to advise that they needed to stop the train to investigate the odor. They eventually stopped the train at a pass on the west end of Ogallala and were transported by ambulance to a local hospital for evaluation.

McNeel alleged that the inhalation of these unidentified fumes caused him to suffer "headaches, nausea, and injury to his respiratory system, dizziness and other injuries not yet diagnosed." He has been seen by a number of health care providers, including William J. Rea, M.D., a cardiovascular surgeon who currently practices in the field of environmental medicine; Theodore R. Simon, M.D., a specialist in nuclear medicine; and Nancy Didriksen, Ph.D, a psychologist. These three providers submitted affidavits and depositions discussing McNeel's symptoms, condition, and treatment, and were the subject of the Daubert/Schafersman motion.

Rea diagnosed McNeel as suffering from toxic encephalopathy caused by his inhalation of an unspecified toxin while employed by Union Pacific on March 12, 2001. Rea described McNeel's symptoms as including "memory loss, confusion, brain fogg [sic] and imbalance." In reaching his diagnosis, Rea relied on a "positive [single photon emission computed tomographic (SPECT)] Scan" performed by Simon, a "positive" result from "pupillography" testing of the autonomic nervous system, and "positive thermography." Rea could not identify the substance responsible for McNeel's symptoms and diagnosis. Simon testified that SPECT scans are widely used and accepted in the diagnosis of toxic encephalopathy, when used in conjunction with other examination techniques.

Didriksen gave "Diagnostic Impressions" of "Cognitive Disorder Not Otherwise Specified" and "Adjustment Disorder with Mixed Anxiety and Depressed Mood" based upon her work with McNeel. Her tests revealed, inter alia, that McNeel's information processing speed was at the bottom of the average range and that his memory scores were "borderline and low average." Comparing her test results with previous results obtained by another doctor, Didriksen explained that her test results indicated a "significant difference" in McNeel's condition. Didriksen's hypothesis is that McNeel experienced a toxic injury that led to declining cortical function over time.

Union Pacific moved to exclude the testimony of Didriksen, Rea, and Simon under Daubert/Schafersman. In support of its motion, it submitted affidavits and depositions from its own expert witnesses. These witnesses opined that the scientific techniques employed by McNeel's experts, specifically the SPECT scans performed by Simon and the psychological tests performed by Didriksen, were not validated peer reviewed, or generally accepted by the scientific community for the purposes employed by McNeel's experts. The district court concluded that there was adequate foundation for the opinions of McNeel's experts, but nonetheless excluded the opinions as "not relevant, not linked by any evidence to a causative factor, and, therefore, inadmissible."

Union Pacific then moved for summary judgment. It offered and the court accepted the opinions of two expert witnesses who opined that there was no credible evidence causally linking McNeel's symptoms to his alleged exposure. The court determined that this evidence met Union Pacific's initial burden as the party moving for summary judgment, thus shifting the burden to McNeel to show that there remained a genuine issue of material fact. The court concluded that medical records offered by McNeel did not meet this burden, and therefore granted the motion for summary judgment. McNeel perfected a timely appeal, and we granted Union Pacific's petition to bypass the Court of Appeals.

ASSIGNMENTS OF ERROR

McNeel assigns, restated, that the district court erred in (1) excluding the proposed testimony of his expert witnesses, (2) granting Union Pacific's motion for summary judgment because there were genuine issues of material fact as to whether his injuries were caused in whole or in part by exposure to toxic gasses while employed by Union Pacific, and (3) granting Union Pacific's motion for summary judgment because Union Pacific failed to collect and preserve certain evidence.

Union Pacific cross-appeals and assigns that the district court erred in finding the opinions of Didriksen, Simon, and Rea to be scientifically reliable.

STANDARD OF REVIEW

Summary judgment is proper when the pleadings and evidence admitted at the hearing disclose no genuine issue regarding any material fact or the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.³

In reviewing a summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence.⁴

In proceedings where the Nebraska rules of evidence apply, the admission of evidence is controlled by rule and not by judicial discretion, except where judicial discretion is a factor involved in assessing admissibility.⁵ The admission of expert testimony is ordinarily within the trial court's discretion, and its ruling will be upheld absent an abuse of discretion.⁶

An abuse of discretion occurs when a trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.⁷

ANALYSIS

FELA CAUSATION STANDARD

McNeel argues that in granting the motion for summary judgment, the district court did not appreciate the "lower evidentiary standard" applicable to a FELA plaintiff's burden of proof.⁸ Federal law governs substantive issues in FELA claims litigated in state courts pursuant to concurrent jurisdiction.⁹

Under FELA, railroad companies are liable in damages to any employee who suffers injury during the course of employment when such injury results in whole or in part due to the railroad's negligence.¹⁰ This court has stated that to recover under FELA, an employee must prove the employer's negligence and that the alleged negligence is a proximate cause of the employee's injury.¹¹ We note that FELA causation standards apply where, as here, liability is premised in whole or in part on an alleged violation of the Locomotive Inspection Act, formerly known as the Boiler Inspection Acts.¹²

McNeel argues that proximate causation under FELA is subject to a different, more lenient standard than under the common law. Indeed, there are federal cases which would appear to support his argument.¹³ Most are based on language in Rogers v. Missouri Pacific R. Co.,¹⁴ in which the U.S. Supreme Court stated: "Under [FELA] the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought." Based upon this language, some courts have stated that there is a "relaxed standard" for causation in FELA cases.¹⁵ Other courts conclude from Rogers that the plaintiff in a FELA case "carries only a slight burden on causation."¹⁶

The existence of a "relaxed standard" for proving causation in FELA cases was called into question by the U.S. Supreme Court's decision in Norfolk Southern Ry. Co. v. Sorrell.¹⁷ In that case, the Court held that in a FELA action, the same causation standard applies to the employer's negligence and the employee's contributory negligence, rejecting a contrary approach employed by Missouri state...