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COLLINS v. BNSF – Experts in FELA Cancer Cases

Published on January 1st, 2020 by Andrew L. Hughes

Expert testimony is an important part of a plaintiff’s FELA cancer case. Experts provide essential information on the links between exposures and cancer diagnoses, as well as scientific evidence that relates to cancer. However, railroad companies will do whatever they can to attempt to exclude expert testimony from the case. This is a summary of one case where the railroad was successful.

In order for expert testimony to be admissible at trial, a few standards must be met, which are set forth in Daubert v. Merrell Dow Pharmaceuticals. In Daubert,the Supreme Court held that, in deciding whether expert testimony is admissible, the court should consider four factors: (1) whether the scientific theory or technique presented by the expert has been tested, (2) whether the theory of the technique has been subjected to peer review and publication, (3) the potential rates of error and the existence of certain standards that may control the technique, and (4) the general acceptance of the theory or technique by the scientific community. If the weight of these factors leans towards considering an expert to be reliable, then the expert’s testimony is admissible at trial. Collins v. BNSF serves as an example of a case where expert testimony was struck from the case because the expert reached “causation” conclusions based on his own assumptions, rather than conclusions based on science.

FACTS:

John Collins worked as a brakeman, conductor and engineer for BNSF from 1997 to 2011. During the course of his employment, he was exposed to various toxins and carcinogens, including solvents, chemicals, diesel exhaust and diesel fuel, benzene, heavy metals, creosote, manganese, and rock and mineral dust and fibers. As a result of these exposures, Collins was diagnosed with colon cancer, and later, liver cancer.

Collins testified that while working on the locomotives for BNSF, there was no proper ventilation system nor air filtration system in place. He alleged that BNSF did not install proper engine exhaust filters, nor did they utilize low-emissions fuel or require cleaner-burning engines.

LAWSUIT:

Collins filed suit against BNSF under FELA, alleging that the railroad’s negligence in exposing him to the toxins in his workplace was the cause of his cancer. At trial, he brought in Dr. Evan Roy Berger (medical causation) and Dr. Michael Ellenbecker (industrial hygiene) as experts to testify. BNSF Railway filed a Motion to Exclude the expert testimony of both doctors.

EXPERT OPINIONS:

Dr. Berger is an internal medicine, hematology, and medical oncology doctor who served as Collins’ causation expert. Dr. Berger concluded that Collins’ exposure to diesel fumes, diesel exhaust, and asbestos was a contributing factor in the development of his colon cancer. BNSF moved to exclude Dr. Berger’s testimony on the grounds that he did not rely on studies that showed an actual, causal relationship between Collins’ exposures and his colon cancer, and therefore Dr. Berger’s opinions are not based on actual scientific data.

The main flaw in Dr. Berger’s expert testimony was his acknowledgment that though they are associated, none of the literature that he reviewed in anticipation of the trial actually stated that exposure to diesel exhaust and/or asbestos causes colon cancer. Because of the fact that Dr. Berger could only note that the exposures and the cancer were associated with one another, he used his own methodology to derive a causation conclusion, which is not admissible at trial. Therefore, BNSF was able to get Dr. Berger’s testimony excluded from the trial because it did not meet the Daubert test.

CASE RESULT:

Dr. Berger’s causation testimony was the only testimony that Collins had to support his cancer being caused by his railroad exposures. Since the court granted BNSF’s Motion to Exclude the testimony of Dr. Berger, summary judgment was entered in favor of BNSF.

This unfortunate outcome emphasizes the importance of working with conservative experts who develop well-researched opinions. Further, the testimony of co-workers to corroborate the plaintiff’s exposure history may have helped avoid this result.

 

Diesel Injury Law is providing this case history to inform visitors about actual case fact patterns and rulings. Unless specifically noted, the cases summarized herein were not handled by attorneys at Diesel Injury Law.  If you believe that you have a case similar to this one, feel free to call 312-877-5588 and speak with an attorney today.

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