U.S. District Court for the Western District of Washington, January 22, 2021
James Jacobson, a long-time railroad worker, died of kidney cancer in 2015, and his widow brings this lawsuit pursuant to the Federal Employers’ Liability Act (FELA) on behalf of his estate. She alleges that his cancer was caused by the negligent use of known carcinogens by defendant BNSF Railway Company. The plaintiff identified one expert witness, Dr. Ernest Chiodo, as both a medical expert and liability expert. The railway defendant filed two motions: it argued that it is entitled to summary judgment because Dr. Chiodo’s expert opinion does not meet the Daubert and Federal Rules of Evidence standards for the admissibility of expert testimony, and that even if Dr. Chiodo’s opinions were deemed admissible, the railway defendant is entitled to summary judgment because the plaintiff did not disclose any expert testimony or other evidence that would support a finding that the defendant breached any duty to the decedent.
The court examined the FELA standard, under which railroads are liable for an employee’s injury death that resulted, at least in part, from the carrier’s negligence. 45 U.S.C. § 51. The plaintiff bears the burden of proving the standard elements of negligence (duty, breach, causation, and damages), and the railroad’s duty of care is measured by what would have been reasonably foreseeable to a carrier in similar circumstances. CSX Transp. Inc. v. McBride, 564 U.S. 685, 703 (2011).
The railroad defendant argued the plaintiff lacked evidence for both the negligence and causation elements of her FELA claim. The plaintiff focused her response on the defendant’s argument regarding Dr. Chiodo’s ability to testify about the causation element of her FELA claim, and the court agreed that the plaintiff had not met her burden to establish that a genuine issue of material fact existed regarding Defendant’s negligence. Specifically, while the plaintiff disclosed Dr. Chiodo as an expert regarding the presence of known toxins on the railroad, Defendant’s knowledge of these carcinogens, and the defendant’s failure to provide the decedent with a safe place to work, Dr. Chiodo’s expert report did not contain any expert opinions regarding the defendant’s knowledge of toxic chemicals in the decedent’s workplace or whether the defendant’s actions were reasonable in light of that knowledge. Because no such opinions were contained in his expert report as required by Rule 36(a)(2)(B)(i), the court held that Dr. Chiodo may not testify about whether the defendant breached its duty to the decedent by failing to provide him with a reasonably safe workplace.
The U.S. District Court for the Western District of Washington therefore granted the defendant’s motion for summary judgment, holding that the defendant demonstrated the plaintiff lacked evidence of an essential element of her FELA claim. Accordingly, the court determined the defendant’s motion to exclude expert testimony to be moot.