Diesel Injury Law

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The Impact on FELA Plaintiffs: Bowers v. CSX Transportation Inc.

In a divided court opinion, the Georgia Court of Appeals recently ruled to use a more stringent and elusive standard to exclude expert testimony in Federal Employers' Liability Act (“FELA”) cases.

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           In Bowers v. CSX Transportation Inc., Mr. Luther Bowers, an employee of CSX, claimed that he was exposed to diesel fuel, diesel exhaust, asbestos, and silica dust during his employment at the railroad. Over his 30-year career in the railroad’s track/engineering department, Mr. Bowers worked as a trackman, track inspector, machine operator, and roadmaster. After his retirement, he developed terminal lung cancer and filed a lawsuit under the FELA against CSX. In support of his primary allegation – that CSX failed to supply him with a safe place to work – Mr. Bowers alleged that CSX was negligent in its handling of toxic chemicals and failed to warn him of the dangers of the chemicals. Unfortunately, Mr. Bowers died before trial.

           Mr. Bowers was not represented by Hughes Law Offices.  His counsel was a firm based in the Northeast who hired Dr. Blickenstaff, a physician who is board-certified in preventive and occupational medicine, to provide expert medical causation opinions. Dr. Blickenstaff asserted that Mr. Bowers’ exposure to toxins at CSX was the cause of his cancer to a reasonable degree of medical certainty. To arrive at this conclusion, Dr. Blickenstaff performed a differential diagnosis where he studied the cause of Mr. Bowers’ lung cancer by identifying the most common causes, then ruled out causes until the most probable cause was isolated. Ultimately, Dr. Blickenstaff opined that Mr. Bowers had experienced significant exposure to diesel exhaust, asbestos, and silica. And he noted that low exposures to such chemicals increase the risk of lung cancer, even in smokers.

           CSX argued in this case that Mr. Bowers’ smoking history was the most likely cause of his lung cancer and that Bowers failed to establish causation. The trial court granted CSX’s motion to exclude the causation report and granted CSX’s motion for summary judgment on the basis that Dr. Blickenstaff’s differential diagnosis fell short of the requirements for expert testimony. The Georgia Court of Appeals in a divided court’s opinion, agreed with the trial court’s decision. Because Dr. Blickenstaff refused to rule out smoking, the court deemed his differential diagnosis unreliable and found that his testimony would be unhelpful to the jury. The majority opinion noted that Dr. Blickenstaff reached the conclusion that the toxins increased the risk of cancer, but he was not able to confirm the level of exposure necessary to cause lung cancer, the amount of toxins Mr. Luther was exposed to, or the quantity compared to exposures in the various studies he relied on.

           The decision by the Georgia Court of Appeals arguably oversteps and misunderstands the fundamental role of the trial court as a gatekeeper, not a fact-finder. The dissent notably calls on Chief Justice Rehnquist’s warning that judges should not try to become amateur scientists. An expert in a FELA case should not be required to disprove every possibility in a case. The Plaintiff’s burden is to introduce sufficient evidence that would allow a jury to conclude that, more than likely, the exposure was a factor in producing the injury.

           In the seminal case on the admissibility of expert testimony, Daubert v. Merrell Dow Pharmaceutical Inc., the U.S. Supreme Court cautioned against the very standard for evaluating the reliability and relevance of expert testimony which the majority in Bowers applied. The Daubert court noted that it would be unreasonable to conclude that the subject of scientific testimony must be known to a certainty, as “there are no certainties in science.” (Daubert v. Merrell Dow Pharms., Inc). Thus, while the proposed expert testimony must be supported by the appropriate grounds on which it is known, it also represents the process for proposing scientific explanations. An expert’s opinion should assist the jury in understanding the evidence or determining a fact in issue. Ultimately, the adversarial nature of our legal system allows for weak evidence to be attacked through cross-examination or presentation of the evidence to the contrary. (Federal Rules of Evidence 702).

           In essence, the Georgia Court of Appeals’ holding undermines the role of the jury and may raise the bar for the admissibility of expert testimony for plaintiffs in FELA cases. Obviously, in hindsight, Dr. Blickenstaff should have formally “ruled in” Mr. Bowers’ smoking history as a contributing cause of his lung cancer. Since doctors cannot look at a chest x-ray and determine what percentage of the cancer was caused by Mr. Bowers smoking history vs. his railroad exposures, that determination should have been left up to the jurors. Questions of fact, such as whether a toxic chemical did cause the harm alleged, are ultimately questions for the jury. As noted by the court in Daubert, science is advanced by a broad consideration of multiple hypotheses, and those that “are incorrect will eventually be shown to be so.” (Daubert v. Merrell Dow Pharms., Inc). As the dissenters note, there is no possible available technology that could make this determination in a cancer patient – so why should we hold experts to the same standard.

           It is worth noting that everyone has a different susceptibility to toxins. There is no line of demarcation for levels of exposure to carcinogens that cause cancer versus a level that does not. One person may smoke cigarettes for a few years in their 20’s and get diagnosed with lung cancer in their 60’s, while another person can smoke for 60 years and die of causes unrelated to smoking. Likewise, railroad workers have different susceptibilities to exposures to diesel exhaust, silica, creosote, and solvents. In the view of this law firm and the experts we retain, there is no safe level of exposure to known carcinogens like diesel exhaust and asbestos. The railroads continuously argue that permissible exposure limits for constituents of diesel exhaust are protective from cancer, and this is just plain wrong and wholly unsupported by science. Unfortunately, some judges are listening to the railroads’ unreliable arguments, resulting in holdings like Bowers.

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