Molitor v. BNSF Ry. Co.

• Decision Date: 20 December 2022
• Docket Number: 1-21-1486
• Citation: 2022 IL App (1st) 211486
• Parties: DAVID MOLITOR, Plaintiff-Appellant, v. BNSF RAILWAY COMPANY, f/k/a Burlington Northern Santa Fe Railway Company, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

1

2022 IL App (1st) 211486

DAVID MOLITOR, Plaintiff-Appellant,
v.
BNSF RAILWAY COMPANY, f/k/a Burlington Northern Santa Fe Railway Company, Defendant-Appellee.

No. 1-21-1486

Court of Appeals of Illinois, First District, Second Division

December 20, 2022

Appeal from the Circuit Court of Cook County No. 2018 L 1934 The Honorable Mary Colleen Roberts, Judge Presiding.

Attorneys for Appellant:

Stephen F. Monroe, of Marc J. Bern & Partners, LLP, of Chicago, and Jonathan Sternberg, of Jonathan Sternberg, Attorney, P.C., of Kansas City, Missouri, for appellant.

Attorneys for Appellee:

Richard T. Sikes Jr. and Matthew C. Jardine, of Knight Nicastro MacKay, LLC, and Karen Kies DeGrand, of Donohue Brown Mathewson & Smyth LLC, both of Chicago, and S. Camille Reifers, of Reifers, Holmes & Peters, LLC, of Memphis, Tennessee, for appellee.

PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion. Justices Howse and Ellis concurred in the judgment and opinion.

OPINION

FITZGERALD SMITH PRESIDING JUSTICE.

¶ 1 The plaintiff, David Molitor, appeals the trial court's entry of summary judgment in favor of the defendant, BNSF Railway Company, in this action under the Federal Employers' Liability Act (FELA) (45 U.S.C. § 51 et seq. (2018)). The trial court granted summary judgment after barring the testimony of both of the plaintiff's expert witnesses, Hernando R. Perez, Ph.D., and Ernest P. Chiodo, M.D., based on the defendant's motions asserting that their testimony failed to satisfy the "general acceptance" test for the admission of expert testimony set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) (Frye test). On appeal, the plaintiff argues that the trial court erred

2

in barring his experts' testimony and then entering summary judgment on that basis. For the reasons that follow, we reverse judgment of the trial court and remand for further proceedings.

¶ 2 I. BACKGROUND

¶ 3 The plaintiff was an employee of the defendant railroad from 1973 to 2014. In 2018, he filed a one-count complaint against the defendant under FELA (45 U.S.C. § 51 et seq. (2018)), alleging in general that, throughout his career, his job duties had required him to work in close proximity to, or inside of, idling locomotive engines, which exposed him on a daily basis to various toxic substances and carcinogens. The complaint alleged that his exposure to these substances over many years caused, in whole or part, his development of B-cell lymphoma, diagnosed in 2015. It alleged that, before and during the plaintiff's employment, the defendant knew of evidence demonstrating a positive correlation or causative link between the exposure to these toxic substances and carcinogens and the development of cancer. It alleged various ways in which the defendant was negligent in allowing the plaintiff's exposure to these cancer-causing substances. Additionally, although apparently not pled in the complaint, the plaintiff later testified that he was exposed throughout his career to herbicides, specifically Roundup, that were sprayed in the rail yards where he worked to control weed growth.

¶ 4 Discovery progressed, and the plaintiff ultimately disclosed two controlled expert witnesses to testify on his behalf. His liability expert was Dr. Perez, an industrial hygienist. His medical causation expert was Dr. Chiodo, an internal medicine physician who is also a licensed attorney and has various additional credentials. The defendant filed motions to bar the admission of the testimony of both of these experts on the basis that their testimony failed the Frye test. The trial court granted both motions, barred the testimony of both experts in their entirety, and entered summary judgment in the defendant's favor. We take the two experts in turn, addressing their

3

opinions and testimony and the basis upon which their testimony was barred.

¶ 5 A. Dr. Perez

¶ 6 Dr. Perez is an expert in the fields of industrial hygiene and occupational health who evaluated and expressed opinions about the plaintiff's working conditions during his employment with the defendant, specifically his exposure to diesel exhaust and herbicides. Dr. Perez holds a Ph.D. in industrial hygiene from Purdue University and a Master of Public Health degree in environmental and occupational health from Emory University. 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. Since 2015 he has been employed by the United States Citizenship and Immigration Services, part of the United States Department of Homeland Security, as its lead industrial hygienist and environmental hygiene program manager. In that capacity, he is the environmental and occupational health technical expert for the agency and is responsible for coordination and performance of industrial hygiene activities at its facilities across the country. Prior to that, he was employed as full-time faculty at the Drexel University School of Public Health from 2004 to 2014 and was director of its industrial hygiene consulting service from 2006 to 2014.

¶ 7 To reach his opinions in this case, Dr. Perez conducted an interview with the plaintiff and reviewed the plaintiff's deposition. He also reviewed various discovery materials produced by the defendant concerning diesel exhaust exposure levels to employees, including a 1997 presentation addressing the potential dangers of exposure to diesel locomotive exhaust, exposure levels, its risk as a human carcinogen, and steps to protect employees from diesel exhaust exposure. He also conducted a review of pertinent literature and the websites of various government agencies and organizations involving environmental issues and cancer research. Among the literature upon

4

which he particularly relied was a study by lead author Dr. Anjoeka Pronk, a research scientist at the National Cancer Institute of the National Institutes of Health. That study researched diesel exhaust exposure levels in occupational environments in which diesel engine use is common.

¶ 8 Dr. Perez's report states that the plaintiff "experienced chronic occupational diesel exhaust exposure during the forty-one (41) year period between 1973 and 2014." Dr. Perez relied on the fact that, from 1973 until 2003, the plaintiff's primary job duties involved switching train cars and making up trains at various local industry sites. From 1973 until 1993, the plaintiff worked as a yard switchman/brakeman. In 1993, he was promoted to conductor and continued performing switching duties and working switcher routes until 2003. He relied on the plaintiff's explanation that his job duties during this time involved either riding on, being on the ground directly adjacent to, or being in close proximity to idling or transiting switcher locomotives. He also relied upon the plaintiff's explanation that, between 1973 and the late 1980s, 95% of the locomotives used were older, high-emitting locomotives with cab environments that allowed for built-up concentrations of diesel exhaust. Dr. Perez explained that this statement by the plaintiff concerning these older, heavy-emitting locomotives was corroborated by the defendant's internal correspondence from 1996. In 2003, the plaintiff transitioned to the role of yardmaster, in which he spent the majority of his time indoors in an office environment, which continued until 2007. In 2008, he returned to work as a conductor and continued in that position until his retirement in 2014.

¶ 9 Dr. Perez expressed opinions that, between 1973 and approximately 1988 (while the older, heavy-emitting locomotives were in use), the plaintiff's average exposure to diesel exhaust was "consistent with the upper quartile of the low range, with frequent excursions into the intermediate range and occasional excursions into the high range." (These references to "ranges" pertained to the three ranges of elemental carbon exposure-which is an established surrogate for diesel

5

exhaust exposure-used by Dr. Pronk's team in its research of occupational exposures to diesel exhaust: low was less than 25 micrograms per square meter, intermediate was less than 50 micrograms per square meter, and high was between 27-658 micrograms per square meter.) Dr. Perez also explained that, between 1989 and 2003, the plaintiff's exposures were "consistent with the low range, with occasional excursions into the intermediate range." Between 2004 and 2007, the plaintiff's exposures were "consistent with ambient background concentrations, with occasional exposures into the low range." Between 2008 and 2014, the plaintiff's exposures were "consistent with the low range." Dr. Perez noted that these average exposure levels were also consistent with the typical exposure levels in railroad settings that had been documented in the defendant's training presentation from 1997, which indicated that levels of exhaust ranged up to about 47 micrograms per square meter. Dr. Perez stated that the plaintiff's locomotive cab environment would have exceeded these typical levels where visible buildup of exhaust had occurred. Dr. Perez further explained that the plaintiff's work settings were representative of environments associated with the elevated risk of occupationally related cancer.

¶ 10 Regarding the plaintiff's exposure to herbicides, Dr. Perez relied on the plaintiff's explanation that, at the railyard where he worked, large-scale spraying of herbicides had occurred one to two times per year over the course of his career. The plaintiff had explained that he was required to come into physical contact with visibly contaminated surfaces, such as switch handles, while performing his work after spraying had occurred. The plaintiff also described experiencing skin exposure to herbicide residue. He stated that he had once worked twelve hours on a...