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Schmaltz v. Norfolk

Published on September 20th, 2019 by Andrew L. Hughes

878 F. Supp. 1119

Case Law Series- Plaintiff’s FELA herbicide exposure case dismissed because experts could not tie diagnosis to work exposure.

Plaintiff Arthur E. Schmaltz worked as a carman for Norfolk & Western Railway Company. (“N&W”) In May of 1990, N&W sprayed the Calumet Yard with atrazine and tebuthiuron, two herbicides meant to control vegetation. Schmaltz was working the overnight shift in Calumet Yard the night that the herbicides were sprayed, and he began to experience respiratory problems the next morning.

A week later, when the symptoms failed to subside, Schmaltz went to the emergency room complaining of burning in his throat and esophagus. Throughout the next two years, Schmaltz was treated by several doctors for Reactive Airway Dysfunction Syndrome, (RADS) an asthma-type respiratory syndrome that occurs after exposure to higher levels of irritants.

On September 27, 1991, Schmaltz brought suit against N&W under the Federal Employer’s Liability Act (FELA) alleging that his RADS diagnosis was caused by his acute exposure to the herbicides sprayed in Calumet Yard.

Schmaltz retained two expert witnesses for trial. One expert was offered to establish general causation (that an acute exposure to herbicides can cause RADS) and the other expert was to offer a specific causation opinion (that Mr. Schmaltz’s exposure to herbicides caused his RADS). Dr. Hessl, one of Schmaltz’s expert witnesses, acknowledged at trial that he knew of no documented cases where exposure to atrazine caused RADS. However, Dr. Hessl noted that there is some evidence to suggest that atrazine may have caused Schmaltz’s specific condition. The expert testified that atrazine could have caused Schmaltz’ RADS diagnosis if the level of atrazine was greater than the permissible exposure limit set by OSHA. Unfortunately, Dr. Hessl was unable to confirm that the level of atrazine that Schmaltz was exposed to was above or below the OSHA level.

The other expert witness, Dr. Schonfeld, had no better luck when it came to proving the ties between the chemical levels and Schmaltz’s RADS. Dr. Schonfeld testified that he was also unaware of any cases where atrazine or tebuthiuron caused RADS. Furthermore, Dr. Schonfeld admitted that he lacked knowledge about the structure of herbicides and based his assumption of causation off of the timing of Schmaltz’s alleged exposure to the herbicides and the onset of his symptoms.

The railroad moved to bar Mr. Schmaltz’s experts because the opinions, among other things, lacked proper foundation. The Court granted N&W’s motion, therefore ending Schmaltz’s case.

This case illustrates the importance of retaining experienced, qualified experts who rest their opinions on a bedrock of epidemiology and eyewitness testimony. The railroads frequently attempt to defend these cases via “dose” arguments because the railroads know that in most cases, plaintiffs cannot establish the dosage of the toxic exposure. Dosage can be proved up via other means, including the plaintiff and co-workers describing symptoms at the time of exposure (headache, shortness of breath etc.) and objective signs of exposure (e.g. face/hand/arms covered in black soot, blowing black gunk out of nose at end of every shift, work surfaces covered in a film of particulates etc.). If co-workers had provided that type of testimony in this case, it might have buttressed the testimony of the experts.

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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