U.S. District Court for the District of Nebraska, September 29, 2021
In this asbestos action, plaintiff James Lancaster claimed that his lung cancer was caused, in part, by exposure to asbestos during the course of his 33-year career as a railroad track foreman. The defendant, BNSF Railway Company, pointed instead to the plaintiff’s extensive history of smoking cigarettes. In addition, BNSF argued that the plaintiff could not establish causation because the expert reports provided by the plaintiff were inadmissible. For these reasons, BNSF filed a motion for summary judgement.
The plaintiff’s expert opinions at issue are by Neil J. Zimmerman, Ph.D., a certified industrial hygienist, and Ernest Chiodo, M.D., a medical doctor specializing in occupational and environmental health sciences. Because the plaintiff passed away in 2018, neither expert could utilize direct testimony from the plaintiff to reach their conclusions. To begin, Zimmerman evaluated the risk of potential hazardous exposures in relation to tasks that the plaintiff likely performed. While Zimmerman concluded that the plaintiff was probably exposed to environmental hazards on the jobsite, he noted that it was impossible to quantify the plaintiff’s personal exposure without air monitoring data. Moving to Chiodo’s opinion, Chiodo concluded that the plaintiff’s lung cancer was caused by exposure to asbestos, among other environmental toxins. Notably, Chiodo explained that his report was predicated on Zimmerman’s opinion that the plaintiff was exposed to a variety of environmental toxins on the jobsite. In dispute of this explanation, BNSF argued that Zimmerman did not definitely opine that plaintiff was exposed on the jobsite; rather, Zimmerman could not determine with a degree of certainty whether the plaintiff was exposed. As a result, BNSF argued that Chiodo’s report should be excluded because it was based on a fundamental misunderstanding of Zimmerman’s opinion.
Under the Federal Rules of Evidence, a trial judge acts as a gatekeeper to screen evidence for relevance and reliability. Importantly, Daubert v. Merrell Dow Pharm., Inc. provides trial courts a non-exhaustive checklist to use when assessing the reliability of expert testimony—including whether the expert’s testimony was applied properly to the facts at issue. 509 U.S. 57, 580 (1993). In the instant matter, the trial court applied the principals of Daubert to the opinions of Zimmerman and Chiodo. The court first pointed out that, although Zimmerman did not have a day-to-day log regarding what the plaintiff did on the job, Zimmerman did fill in the gaps by relying on personnel records from BNSF and on the recollection of those who worked with the plaintiff. As such, Zimmerman’s expert opinion is admissible. With regards to Chiodo’s opinion, however, the court agreed with BNSF. The court noted that Zimmerman was unable to definitively conclude that the plaintiff was exposed to above-background rates of environmental toxins on the jobsite. Based on this information, Chiodo’s opinion was clearly based on an inaccurate assumption. In addition, the court also explained that Chiodo failed to rule out smoking as a non-workplace cause of the plaintiff’s lung cancer. Based on these factors, the court concluded that Chiodo’s opinion lacked a scientific foundation. As a result, BNSF’s motion to exclude Chiodo’s expert testimony was granted.
Importantly, without Chiodo’s opinion the court noted that the plaintiff failed to provide evidence of causation. As such, the court granted BNSF’s motion for summary judgment and dismissed the plaintiff’s complaint.