Case Remanded After Appeals Court Finds Plaintiff’s Expert Unreliable Court of Appeals of Texas, March 29, 2018

TEXAS — Plaintiff Leonard Baca alleged that while working for defendant BNSF’s predecessor in interest, he was exposed to asbestos, causing him to develop asbestosis. The plaintiff retained an expert, Dr. Alvin Schonfeld, a pulmonogist, who provided a report in which he concluded that Baca’s asbestosis was causally related to his exposure to asbestos during his employment. BNSF moved to exclude Dr. Schonfeld’s causation opinion as inadmissible because it was unreliable under well-established case law. The trial court denied the motion, but also granted permission in its order for BNSF to immediately appeal, finding that the order involved a controlling question of law as to which there was a substantial ground for difference of opinion. The order further stated that “an immediate appeal from the order would material advance the ultimate termination of this litigation.”

The sole issue on appeal was “whether the Federal Employers Liability ACTs (FELA) lower causation standard—i.e., whether a railroad’s negligence played any part, even the slightest, in bringing about the injury—makes inapplicable the expert admissibility standards expressed in cases like…”

The appeals court held that the expert admissibility standards espoused in E.I. DuPont de Nemours & Co. v. Robinson and Merrell Dow Pharmaceuticals, Inc. v. Havner apply to actions brought under FELA. A plaintiff must show a causal connection between his exposure to asbestos and a disease he suffers from via expert testimony as it is outside the knowledge of a lay person. The appeals court agreed that Dr. Schonfeld’s causation opinion was unreliable, and therefore inadmissible, and remanded the case for further proceedings.

Read the full decision here.

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