Court: Court of Appeals of Tennessee, At Jackson
Plaintiff Annie Dowdy is a former employee of defendant BNSF Railway Company. She filed suit against BNSF under the Federal Employers’ Liability Act (“FELA”), alleging that BNSF negligently failed to provide a reasonably safe work place, and claiming that occupational exposure to diesel exhaust and asbestos caused or contributed to her renal cancer. Plaintiff relief on the testimony of two expert witnesses: Dr. Hernando Perez, who was retained to testify regarding negligence and liability, and Dr. Ernest Chiodo, who provided opinions on causation.
After deposing both experts, BNSF moved to exclude their testimony as unreliable. BNSF also filed a motion for summary judgment, arguing that if the court excluded the testimony of either expert, the plaintiff could not establish her prima facie case under FELA. The trial court granted all of BNSF’s motions and entered judgment in its favor.
The court first examined the toxic tort liability standard for railroads under FELA, as well as the applicable standard for a motion for summary judgment. The parties agreed that the plaintiff cannot establish her FELA claim without the testimony of both experts, and the dispositive issue on appeal was whether the trial court abused its discretion when it excluded the plaintiff’s experts. As both Perez and Chiodo are well-educated, credentialed, and have relevant experience in their respective fields, the admissibility of their testimony turns on the basis for their opinions.
The trial court excluded Perez’s testimony because it determined that his opinions were not adequately supported by relevant scientific data or peer-reviewed literature. However, plaintiff contends that he used a reliable scientific methodology based on established and peer-reviewed data to reach his ultimate conclusions.
Perez conducted a retrospective exposure assessment to quantify the plaintiff’s occupational exposure levels to diesel exhaust. In conducting his assessment, Perez used the framework published in “the Pronk study” on occupational exposure to diesel engine exhaust. Like the authors of the Pronk study, Perez categorized the plaintiff’s occupational exposure levels as within the low, intermediate or high range. However, Perez’s estimates of the plaintiff’s average exposure levels were not based on the data or findings reported in the Pronk study. Further, he did not conduct his own testing and never visited the plaintiff’s former job site. In fact, he disregarded contradictory data provided by BNSF. While he considered measurement data from other locomotive shops, he admitted that he could not say whether those conditions were similar to the conditions that the plaintiff experienced.
Unlike his diesel exhaust exposure estimates, Perez did not quantify the plaintiff’s asbestos exposure. He could not say that her exposure ever exceeded OSHA’s long-term permissible exposure limit. He did not know how often the plaintiff cleaned the basement of her worksite or how much time she spent sweeping in that area, and he was not even familiar with the physical characteristics of the basement area and could not say whether she worked in close proximity to the delaminating thermal pipe insulation. While he recognized that actual testing in the basement area showed that airborne asbestos fibers did not exceed permissible levels, Perez rejected that data because the testing was performed in a settled environment.
Perez could not point to any scientific literature that supported his opinions, and he could not say that the data he relied on from other locomotive shops reflected conditions similar those the plaintiff experienced. He also admitted that the plaintiff’s asbestos exposure did not exceed long-term permissible limits, and his conclusion that her asbestos exposure exceeded OSHA’s short-term limit appeared to be no more than speculation. The Court of Appeals therefore concluded that the trial court did not abuse its discretion in excluding Perez’s testimony.
Turning to plaintiff’s other expert, the trial court excluded Chiodo’s testimony as speculative and unreliable. It did not fault his methodology but rather found that the scientific literature Chiodo cited did not adequately support his conclusion that exposure to diesel exhaust and/or asbestos was capable of causing renal cancer. Chiodo admitted that his opinion on general causation was based solely on his own knowledge, but he cited peer-reviewed literature that he believed corroborated his conclusion.
As the trial court recognized, the study Chiodo cited to support his opinion on diesel exhaust, the Peters diesel exhaust study, did not find a causal link between occupational exposure to diesel exhaust and renal cancer. The authors of the study concluded that diesel exhaust exposure alone does not appear to increase the likelihood of kidney cancer. Occupational exposure to diesel exhaust may be related to a higher risk of kidney cancer, but likely only in combination with gasoline exhaust exposure.
Chiodo insisted that the odds ratios reported in the Peters study corroborated his opinion, as the study found that men with probable exposure to diesel exhaust were more likely to be diagnosed with renal cancer than those who had never been exposed. While Chiodo acknowledged that this finding was statistically insignificant, he maintained that it supported his opinion. The Court of Appeals held that it was not an abuse of discretion to exclude Chiodo’s opinions on diesel exhaust, as he could only point to a statistically insignificant finding to support his conclusion that diesel exhaust exposure could cause renal cancer.
Chiodo cited two studies he believed corroborated his opinions on asbestos. However, the Peters study on asbestos exposure only found an association between asbestos exposure and kidney cancer, and Chiodo conceded that association did not equate to causation. Still, he believed the odds ratios reported in the study supported a causal connection. Once again, Chiodo relied on ratios that lacked statistical significance, and the court upheld the trial court’s finding that this study did not adequately support Chiodo’s causation opinion.
Chiodo cited a second article, the Smith article, in support of his asbestos opinions. It appears from an abstract of that article that the authors of the Smith article found three human studies “with sufficient statistical power to detect an excess mortality from kidney cancer among workers exposed to asbestos,” concluding that asbestos “should be regarded as a probable cause of human kidney cancer.” Plaintiff’s counsel maintained that the Smith article fully supported Chiodo’s opinion that occupational exposure to asbestos could cause kidney cancer.
The trial court found that the Smith article did not adequately support Chiodo’s ultimate conclusion. The summary information provided in the abstract of the article failed to include details regarding the methodology and conclusions of the summarized study relevant to the reliability inquiry. Given that the trial court could not be assured that the Smith article was reliable, the Court of Appeals could not say that the court’s decision to exclude Chiodo’s opinions on asbestos was an abuse of discretion.
The Court of Appeals ultimately affirmed the decision of the trial court, holding it was not an abuse of discretion to exclude both experts. Without this expert testimony, Dowdy could not establish her FELA claim, and so BNSF was entitled to summary judgment in its favor as a matter of law.
Read the full decision here.