Russell v. Ill. Cent. R.R. Co.
| Decision Date | 30 June 2015 |
| Docket Number | No. W2013-02453-COA-R3-CV,W2013-02453-COA-R3-CV |
| Parties | LINDA J. RUSSELL, ADMINISTRATOR OF THE ESTATE OF MILFORD R. RUSSELL, JR. v. ILLINOIS CENTRAL RAILROAD COMPANY |
| Court | Tennessee Court of Appeals |
Appeal from the Circuit Court for Shelby County
Linda Russell brought a Federal Employers Liability Act action against Illinois Central Railroad Company to recover for the death of her husband from throat cancer; she alleged the cancer was caused by Mr. Russell's exposure to carcinogens while he worked in the Illinois Central maintenance shops in Memphis, Tennessee. A jury found in her favor and awarded damages of $4,255,000.00; on Defendant's motion to offset the judgment in the amount of medical expenses paid on behalf of Mr. Russell, the trial court reduced the judgment to $3,335,685.00. On appeal, Illinois Central asserts the trial court erred in admitting the causation opinions of three of Plaintiff's medical experts; in approving the jury's finding of causation; in making certain evidentiary rulings prior to and during trial; and in denying Defendant's post-trial motions based on the statute of limitations and Plaintiff's counsel's alleged violations of pretrial rulings. In her cross appeal, Mrs. Russell appeals the reduction of the verdict. Finding no reversible error, we affirm the trial court.
Thomas R. Peters and Mark R. Kurz, Belleville, Illinois; Brooks E. Kostakis and Stephanie Camille Reifers, Memphis, Tennessee, for the appellant, Illinois Central Railroad Company.
Donald N. Capparella, Nashville, Tennessee, and William P. Gavin, Swansea, Illinois, for the appellee, Linda J. Russell, Administrator of the Estate of Milford R. Russell, Jr.
OPINIONThis appeal arises out of a negligence action brought pursuant to the Federal Employers Liability Act ("FELA"), 45 U.S.C. § 51 et. seq., by Linda Russell ("Mrs. Russell"), the widow of Milford R. Russell, Jr., ("Mr. Russell") against Illinois Central Railroad Company to recover for the death of her husband, who worked as a mechanic in Illinois Central's Trigg Avenue and Johnston Yard maintenance shops in Memphis from 1974 to 2007. Mr. Russell died on September 20, 2008, of squamous cell oropharyngeal (throat) cancer. Mrs. Russell alleged that her husband's cancer and death resulted from his exposure to asbestos, diesel exhaust, and environmental tobacco smoke ("ETS" or secondhand smoke) during the course of his employment with Illinois Central. He was first diagnosed with throat cancer in 1989 when he was in his 40s and underwent treatment for eight to nine months. He returned to work in 1990, and in 1995, was told by his doctor that he was cured of cancer. He was diagnosed a second time on December 5, 2007.
Mrs. Russell filed suit on December 1, 2010. A two-week trial was held before a jury in April 2013. Twenty-nine witnesses testified at trial, 15 of which were experts. The jury found in favor of Mrs. Russell and awarded her $4,255,000.00. Pursuant to Illinois Central's motion to offset the judgment in the amount of medical bills paid by Mr. Russell's health insurance plan, the jury's award was reduced to $3,335,685.00.
Illinois Central now appeals the judgment, raising numerous issues, and Mrs. Russell appeals the reduction of the verdict.
We first address Illinois Central's challenge to the admission of the causation opinions of Plaintiff's expert witnesses, Dr. Arthur Frank,2 Dr. Michael McClean3 and Dr. Karl Kelsey.4 All were disclosed by the Plaintiff as expert witnesses who would opine that asbestos, ETS, and diesel exhaust are human carcinogens to which Mr. Russell was exposed during his employment with Illinois Central and which caused, in whole or in part, him to develop the cancer at issue in this litigation.5 The qualifications of thesewitnesses as experts are not at issue; rather, Illinois Central contends that the court erred in admitting their testimony because their opinions did not satisfy Rules 7026 and 7037 of the Tennessee Rules of Evidence. Specifically, Illinois Central argues:
These opinions were based upon insufficient or unreliable data - in particular (1) the absence of published scientific or medical support and (2) the experts' admitted failure to measure, quantify or sufficiently consider the dose of claimed exposures - to form a valid scientific basis for the proposition that asbestos, diesel exhaust, or secondhand smoke can cause and did cause Mr. Russell's type of cancer.
The admissibility of scientific proof in the form of expert testimony is governed by Tenn. R. Evid. 702 and 703. The role of trial courts in applying these rules was explained succinctly in McDaniel v. CSX Transp., Inc.:
In Tennessee, under [Tenn. R. Evid. 702 and 703], a trial court must determine whether the evidence will substantially assist the trier of fact to determine a fact in issue and whether the facts and data underlying the evidence indicate a lack of trustworthiness. The rules together necessarilyrequire a determination as to the scientific validity or reliability of the evidence. Simply put, unless the scientific evidence is valid, it will not substantially assist the trier of fact, nor will its underlying facts and data appear to be trustworthy, but there is no requirement in the rule that it be generally accepted.
McDaniel v. CSX Transp., Inc, 955 S.W.2d 257, 265 (Tenn. 1997). When determining whether expert testimony meets the requisites of Rules 702 and 703, the trial court must consider whether the "basis for the witness's opinion, i.e., testing, research, studies, or experience-based observations, adequately supports that expert's conclusions to ensure that there is not a significant analytical gap between the expert's opinion and the data upon which the opinion is based." Denning v. CSX Transp., Inc., M2012-01077-COA-R3CV, 2013 WL 5569145, at *5 (Tenn. App. Oct. 9, 2013) (quoting State v. Stevens, 78 S.W.3d 817, 834-35 (Tenn. 2002)). The analysis "has four general inter-related components: (1) qualifications assessment, (2) analytical cohesion, (3) methodological reliability, and (4) foundational reliability." Id. at *5 (quoting State v. Scott, 275 S.W.3d 395, 401-402 (Tenn. 2009)). In making a determination of reliability, the trial court may consider the following non-exclusive factors:
(1)Whether scientific evidence has been tested and the methodology with which it has been tested; (2) whether the evidence has been subjected to peer review or publication; (3) whether a potential rate of error is known; (4) whether, as formerly required by Frye[8], the evidence is generally accepted in the scientific community; and (5) whether the expert's research in the field has been conducted independent of litigation.
McDaniel, 955 S.W.2d at 265. These factors are not mandated in every case in which expert evidence is offered and should not be applied unless the factor or factors provide a reasonable measure of the expert's methodology. Brown v. Crown Equip. Corp., 181 S.W.3d 268, 272 (Tenn. 2005). The reasonableness of the McDaniel factors in assessing reliability depends upon the nature of the issue, the witness's particular expertise, and the subject of the expert's testimony. Id. at 277.
Generally, "questions regarding the admissibility, qualifications, relevancy and competency of expert testimony are left to the discretion of the trial court." McDaniel, 955 S.W. 2d at 264 (citing State v. Ballard, 855 S.W.2d 557, 562 (Tenn. 1993)). We review the decision to admit the testimony of expert witnesses under the abuse ofdiscretion standard. Id. A trial court abuses its discretion when it applies an incorrect legal standard or reaches a decision that is contrary to logic or reasoning and that causes an injustice to the party complaining. Mercer v. Vanderbilt University, Inc., 134 S.W.3d 121, 131 (Tenn. 2004). Where the opinions present conflicting scientific views, the court's role is to "analyze the science," but it "need not weigh or choose between two legitimate or conflicting views." McDaniel, 955 S.W. 3d at 265. Tenn. R. Evid. 104 favors the admissibility of evidence upon the court's determination that the opinions are based on "relevant scientific methods, processes, and data, and not upon an expert's mere speculation." Id. Once admitted, the trier of fact is to determine "the weight to be given to stated scientific theories[] and the resolution of legitimate but competing scientific views. Id.
Plaintiff's experts Drs. Frank, Kelsey, and McClean each used a differential diagnosis9 to reach the opinion that the cancer which led to Mr. Russell's death wascaused by carcinogens in the workplace. Illinois Central contends that the experts' opinions were not reliable because the differential diagnoses on which they were based "did not consider the dose, frequency or duration" of Mr. Russell's exposure to carcinogens at work.
The reliability of differential diagnoses was before the court in Hardyman v. Norfolk & Western Railway Co., 243 F.3d 255 (6th Cir. 2001), a FELA case in which a railroad employee sought to recover for carpal tunnel syndrome, which he alleged resulted from his work for the railroad. The district court had excluded two expert opinions that the employee's condition was caused by his work on the ground that the opinions were conclusory and unsupported by any objective, reliable methodology; the opinions were based on differential diagnoses. Hardyman, 243 F.3d at 261. The Court of Appeals reversed the exclusion of the opinions, holding that a differential diagnosis is "an alternative method of establishing causation," one which may be utilized...
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