Summers v. Missouri Pacific RR System

• Decision Date: 25 August 1995
• Docket Number: No. 94-468-P.,94-468-P.
• Parties: Jon Bradley SUMMERS and Glyn E. Potts, Plaintiffs, v. MISSOURI PACIFIC RAILROAD SYSTEM, a railroad corporation, d/b/a Union Pacific Railroad, Defendant.
• Court: U.S. District Court — Eastern District of Oklahoma

897 F. Supp. 533

Jon Bradley SUMMERS and Glyn E. Potts, Plaintiffs, v. MISSOURI PACIFIC RAILROAD SYSTEM, a railroad corporation, d/b/a Union Pacific Railroad, Defendant.

No. 94-468-P.

United States District Court, E.D. Oklahoma.

August 25, 1995.

Jerald J. Bonifield, Belleville, IL, for plaintiffs.

Tom L. Armstrong, Tulsa, OK, David Lee Crawford, Houston, TX, for defendant.

ORDER

PAYNE, United States Magistrate Judge.

This matter came on for hearing on June 12, 1995, before Magistrate Judge James H. Payne pursuant to an order issued by this court. The plaintiffs appeared by and through their attorney of record, Jerald J. Bonifield, and the defendant was represented by counsel of record, Tom L. Armstrong and David Lee Crawford. After consideration of all pleadings on file herein, and the arguments and statements of counsel this court finds that the testimony of Drs. Alfred Johnson, D.O. and Susan Franks, Ph.D., should be excluded.

The record reveals the following factual background. On July 5, 1993, Plaintiffs, and an additional crew member, not a party to this litigation, were scheduled to deadhead¹ by train between McAlester, Oklahoma, and Fort Worth, Texas. Plaintiffs Potts and Summers both resided in the Fort Worth area. On the previous day, they had served as the operating crew on a train from Fort Worth to McAlester. On June 5, they reported to the station at McAlester at approximately 3:15 in the afternoon to deadhead by train back to Fort Worth. While train crews are typically deadheaded by private van service, occasionally they are deadheaded by train.

The train left McAlester at 3:50 in the afternoon. Plaintiffs Summers and Potts were both seated in the second locomotive of a train that was comprised of four locomotives. Approximately 40 miles out of McAlester, Plaintiff Summers complained of a headache. Plaintiff Potts at the same time complained of a tightness in his chest. Plaintiff Potts contacted the dispatcher by radio, advised her that the crew was feeling ill and needed to be relieved. A short time later, the dispatcher notified Plaintiffs Summers and Potts that she was getting a van to meet them in Denison, Texas. Plaintiffs Potts and Summers got off the train in Denison at approximately 6:15 P.M. The total time spent on the train was approximately two hours and 25 minutes. Plaintiffs traveled approximately 98 miles. Plaintiffs did not request medical attention in Denison. Upon arriving at Fort Worth, Plaintiffs Summers and Potts, along with the third deadheading crew member, went to the Harris Methodist H-E-B Hospital in Bedford, Texas. Arterial blood tests were done. Arterial blood gas tests were normal. Plaintiff Summers carbon monoxide level was elevated, but the degree of elevation was normal for a heavy smoker. Plaintiffs were then released and told they could return to work.

Plaintiff Summers and Potts complained of continuing problems, and were referred to the Environmental Health Center in late June, 1993. Plaintiff Summers was first seen by the Environmental Health Center on June 24, 1993. Plaintiff Potts was first seen the next day. Plaintiffs were eventually diagnosed by Dr. Alfred Johnson, D.O., as having become chemically sensitized to petrochemical components such as diesel and other petrochemical compounds. The actual diagnosis was toxic exposure to diesel fumes resulting in chemical sensitivity.

Subsequent to the diagnosis by Dr. Johnson, Plaintiffs were referred to Dr. Thomas Chester, M.D., who determined that each of the plaintiffs had received a toxic exposure on June 5, which he characterized as mild in both instances. Dr. Chester found that Glyn Potts was unable to return to his former employment, but based that determination on findings unrelated to the toxic exposure, and determined that Brad Summers may have been suffering from depression, as opposed to toxic exposure. Dr. Chester recommended a neuropsychiatric evaluation which was conducted by Dr. Susan Franks, a psychologist.² Dr. Franks found that Mr. Summers had suffered a toxic exposure and that he functioned in a brain damaged category.

Plaintiff Potts was born on March 5, 1941. Mr. Potts was 52 years old on June 5, 1993. He started work for the railroad on October 3, 1973. Mr. Potts medical history reveals that he had a kidney removed in 1982, a kidney transplant; in 1983, a heart attack in May 1992, and a second heart attack in December 1993. Mr. Potts smoked cigarettes for 30 years, and at the time he quit smoking in 1990, was smoking up to three packs daily.

Plaintiff Summers was born August 31, 1960. He was 32 years old on June 5, 1993. Plaintiff Summers began working for the railroad on October 16, 1979. As of June 5, 1993, Plaintiff Summers smoked five cigars daily, inhaling when he smoked.

Plaintiffs allege that Defendant violated the provisions of the Federal Employers' Liability Act in that it failed to provide safe transportation during the deadheading operation. Plaintiffs further contend Defendant violated the Boiler Inspection Act in that the locomotive engine, in which Plaintiffs were riding during the deadheading operation, was not in a proper and safe condition and that the failure of the engine to have a safe and well ventilated passenger compartment created an unnecessary peril to the life and limb of Plaintiffs. Each of the Plaintiffs claim that they sustained inhalation injuries as a result of the excessive exposure to diesel exhaust fumes and that they have a separate permanent injury, disability, and loss of earning capacity as a result of this injury.

Specifically, in regard to Plaintiffs' alleged permanent injuries and resulting damages, Plaintiffs claim they suffer from chemical sensitivity, a recognized medical diagnosis (Plaintiffs' Response Br. at 8). Defendant contends, however, that the true diagnosis of Plaintiffs' expert, Alfred R. Johnson, D.O., is "multiple chemical sensitivity" ("MCS"), a diagnosis which is not supported by sound scientific reasoning or methodology, and should be excluded pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. ___, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and its progeny.

Dr. Johnson practices clinical ecology, and is an advocate of the diagnosis of MCS (Johnson Depo. at 12, 163, 168-169, 176-179) (Carson Depo. at 16). "Clinical ecologists claim that various kinds of environmental insults may depress a person's immune system so that the exposed person develops a `multiple chemical sensitivity,' that is, becomes hypersensitive to other chemicals and naturally occurring substances." Manual on Scientific Evidence Federal Judicial Center, at 73-74 (Federal Judicial Center, 1994). Clinical ecologists have not been recognized by traditional professional organizations within the medical community. Id. The leading professional societies in the fields of allergy and immunology have also rejected clinical ecology "as an unproven methodology lacking any scientific basis in either fact or theory." Id. Further, MCS is not a diagnosis that is accepted within the medical community.

The 1991 American College of Occupational and Environmental Medicine (ACOEM) Statement on MCS which states in pertinent part:

Multiple chemical hypersensitivity syndrome (MCHS) is one of over 20 names or descriptions (20th century disease, environmental illness, total allergy syndrome, chemical AIDS, etc.) given to a clinical complex characterized by recurrent polystem symptoms often without observable physical findings or laboratory abnormalities believed to be associated with repeated exposure to specific biological, chemical agents. Practitioners involved in the diagnosis and treatment of this phenomenon may identify themselves as clinical ecologists or environmental medicine specialists.

The pathophysiological mechanisms described by these practitioners do not in general conform to what is currently known of human biological functions. To explain the phenomenon these practitioners draw on new or modified mechanisms such as "total body load, spreading, or switching." The scientific foundation for managing patients with this syndrome has yet to be established by traditional clinical investigative activities that withstand critical peer review ... the scientific and clinical evidence supporting the pathophysiological mechanisms and treatment regimes as articulated by these practitioners is lacking. It is the position of the ACOEM that the MCHS is presently an unproven hypothesis and current treatment methods represent an experimental methodology. ...

(Carson Depo. Ex. 2).

In an addendum to this position, ACOEM approved the following statement regarding MCS on April 27, 1993:

Increasingly, multiple chemical sensitivities (MCS) has become a troublesome medical concern for individuals and their physicians.... The science is indeterminate about MCS as a specific entity and the cause and effect relationships have not been clearly established.

(Carson Depo. Ex. 2).

Additionally, in 1992 the Council Report on Clinical Ecology issued by the Council on Scientific Affairs, American Medical Association stated:

Two medical societies American Academy of Allergy and Immunology, and California Medical Association, have issued position papers and one The American College of physicians has issued an informational report on clinical ecology. The position papers reported that no scientific evidence supports the contention that MCS is a significant cause of disease or that the diagnostic tests or treatments used have any therapeutic value. Until such accurate, reproducible, and well-controlled studies are available, the American Medical Association Council on Scientific Affairs believes that multiple chemical sensitivity should not be considered a recognized clinical syndrome.

Based on the reports in the peer-reviewed scientific literature, the Council on Scientific Affairs finds that at this time (1) there are no well-controlled studies establishing a clear

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