Court: Superior Court of New Jersey, Appellate Division
Decedent Joseph Murray worked for the defendant Consolidated Rail Corporation (Conrail) from 1976 to 2011 as a brakeman/conductor. His wife filed a wrongful death and survival action citing the Federal Employers’ Liability Act (FELA), 45 U.S.C. §§ 51-60, and the Locomotive Inspection Act, 49 U.S.C. §§ 20701-20703. The plaintiff alleged that decedent had been exposed to harmful amounts of asbestos and various fumes while working for Conrail and that his lung cancer, tongue cancer, and subsequent death were the result of Conrail’s negligence. Notably, the decedent was a heavy smoker.
The plaintiff retained Hernando R. Perez, Ph.D., a certified industrial hygienist, as a liability expert to offer opinions in connection with the working conditions of the decedent while employed by Conrail. She also retained Mark Levin, M.D., a board-certified oncologist, as her medical-causation expert. The parties ultimately stipulated to the dismissal of the plaintiff’s tongue-cancer and asbestos-exposure claims, leaving only the plaintiff’s claim the decedent was exposed to diesel exhaust at Conrail that caused or contributed to decedent’s lung cancer and death. That agreement rendered irrelevant much of Dr. Levin’s report, in which he intertwined smoking, asbestos, and diesel exhaust as contributory causes of decedent’s tongue and lung cancers.
The motion judge denied without prejudice Conrail’s first motion to exclude Levin’s report and testimony. Defendant later moved a second time to exclude them, arguing Dr. Levin had not provided a methodology as to how he reached his conclusions and, instead, had issued a net opinion.
In opposition to the motion, the plaintiff submitted the certification of her counsel, who provided descriptions of the methodology Levin purportedly used in rendering his opinions. The plaintiff’s counsel certified that Levin first determined whether general causation existed by referencing peer-reviewed literature, and then considered specific causation, meaning “whether long-term exposure to diesel exhaust, caused or contributed to, [the decedent’s] development of lung cancer.”
The motion judge granted the motion to exclude Levin’s testimony, holding that his opinion was not supported with the requisite reliable methodology and that his report was a ‘net opinion.’ Notably, while Levin deferred to Dr. Perez in regard to specific quantification of diesel exhaust exposure, he did not review Perez’s report until after he wrote his expert report. The judge concluded that Levin had not reliably ruled out other potential causes of the decedent’s cancer and that Levin’s only effort to rule out cigarette smoking was based on an inference from a doctor’s note and was ultimately conjecture. The court further held that Levin’s deposition testimony demonstrated that he lacked any personal knowledge of railroad yardwork generally, or as to how the decedent could have been exposed to diesel exhaust specifically, and entered an order precluding his report and testimony.
Conrail then moved for summary judgment. In response, the plaintiff’s counsel advised the judge that in light of the order excluding Levin, the plaintiff did not oppose the motion, conceding that the plaintiff could not prove medical causation without Levin’s medical causation opinion. Accordingly, the judge granted the motion for summary judgment. The plaintiff now appeals both orders, arguing that the judge abused his discretion in excluding Levin’s report and testimony.
A trial judge’s decision concerning the admission of expert testimony into evidence is entitled to our deference and is reviewed under an abuse-of-discretion standard. Townsend v. Pierre, 221 N.J. 36, 52 (2015). Further, a trial judge’s decision to exclude an expert report should be reversed “only if it ‘was so wide off the mark that a manifest denial of justice resulted.'” Rodriguez v. Wal-Mart Stores, Inc., 237 N.J. 36, 57 (2019) (quoting Griffin v. City of E. Orange, 225 N.J. 400, 413 (2016)).
The court acknowledged that FELA’s language on causation is quite broad. However, that broad language does not eliminate a plaintiff’s obligation to prove causation or strip from a trial judge his or her role as “the gatekeeper of expert witness testimony.” In re Accutane Litig., 234 N.J. at 389; see also Stevens v. N.J. Transit Rail Operations, 356 N.J. Super. 311, 319 (App. Div. 2003).
The court further considered New Jersey Rules of Evidence 702 and 703, which control the admission of expert testimony. N.J.R.E. 703 addresses the foundation for expert testimony and mandates that expert opinions must “be grounded in ‘facts or data derived from (1) the expert’s personal observations, or (2) evidence admitted at the trial, or (3) data relied upon by the expert which is not necessarily admissible in evidence but which is the type of data normally relied upon by experts.'” Townsend, 221 N.J. at 53 (quoting Polzo v. Cty. of Essex, 196 N.J. 569, 583 (2008)).
The net opinion rule directs that experts be able to identify the factual bases for their conclusions, explain their methodology, and demonstrate that both the factual bases and the methodology are reliable. Townsend, 221 N.J. at 55 (internal quotations omitted). Further, an expert’s conclusion must be excluded if it is based merely on unfounded speculation and unquantified possibilities.
Applying those principals, the court determined that the motion judge properly excluded Levin’s report and testimony, as Levin’s opinion clearly and admittedly was based on an assumption about the decedent’s exposure to diesel exhaust. While the report of the plaintiff’s other expert, Perez, may have established the decedent’s diesel-exhaust exposure, Levin did not read Perez’s report before he issued his own report. Further, the plaintiff only provided a certification of her counsel regarding Levin’s purported methodology rather than any statement or testimony by Levin himself.
Levin relied on assumptions and failed to explain how he reached the conclusion that the decedent’s employment at Conrail was a substantial contributing factor in the development of his tongue and lung cancer, and his report could apply equally to anyone who has ever worked as a Conrail brakeman and developed cancer. Those bare conclusions, premised on speculation, constituted inadmissible net opinions.
Perceiving no abuse of discretion or legal error, the appellate court affirmed the trial court’s expert-exclusion order. Based on that determination, the court also affirm the ordered granting summary judgment for Conrail.
Read the full decision here.