Background of Bowers v. CSX Transportation
In Bowers v. CSX Transportation Inc., CSX employee Luther Bowers alleged that his railroad work exposed him to diesel fuel, diesel exhaust, asbestos, and silica dust during his employment at the railroad. Throughout his 30-year career in the railroad’s track/engineering department, Mr. Bowers worked as a trackman, track inspector, machine operator, and roadmaster. Following 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. Additionally, CSX failed to warn him of the dangers of the chemicals. Unfortunately, Mr. Bowers died before trial.
Expert Testimony and Medical Causation
Hughes Law Offices did not represent Mr. Bowers. Instead a Northeast law firm representing him retained Dr. Blickenstaff, a board-certified expert in preventive and occupational medicine, to offer medical causation testimony. 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. First he studied the cause of Mr. Bowers’ lung cancer by identifying the most common causes. Then, after conducting this analysis, he systematically ruled out alternative causes to isolate the most probable cause.
Ultimately, Dr. Blickenstaff opined that Mr. Bowers had experienced significant exposure to diesel exhaust, asbestos, and silica. Furthermore, he noted that low exposures to such chemicals increase the risk of lung cancer, even in smokers.
CSX’s Defense and the Court’s Ruling
However, CSX argued in this case that Mr. Bowers’ smoking history was the most likely cause of his lung cancer. They contended that Bowers failed to establish causation. As a result, the trial court granted CSX’s motion to exclude the causation report. Additionally, the court granted CSX’s motion for summary judgment. This was on the basis that Dr. Blickenstaff’s differential diagnosis fell short of the requirements for expert testimony.
Subsequently, the Georgia Court of Appeals, in a divided opinion, agreed with the trial court’s decision. Because Dr. Blickenstaff refused to rule out smoking, the court deemed his differential diagnosis unreliable. Moreover, they found that his testimony would be unhelpful to the jury. The majority opinion noted that Dr. Blickenstaff concluded the toxins increased the risk of cancer. Yet, he did not determine the level of exposure necessary to cause lung cancer, measure the amount of toxins Mr. Luther was exposed to, or compare those exposures to the levels reported in the studies he relied on.
The Role of the Trial Court as Gatekeeper
The decision by the Georgia Court of Appeals arguably oversteps and misunderstands the fundamental role of the trial court. This role is as a gatekeeper, not a fact-finder. The dissent notably calls on Chief Justice Rehnquist’s warning. Judges should not try to become amateur scientists. Furthermore, an expert in a FELA case should not be required to disprove every possibility in a case. Rather, the Plaintiff’s burden is to introduce sufficient evidence. This evidence should allow a jury to conclude that, more than likely, the exposure was a factor in producing the injury.
Daubert and the Standard for Expert Testimony
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 that 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, the proposed expert testimony must rest on solid scientific grounds and demonstrate the process of developing and testing 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).
Implications for FELA Plaintiffs
In essence, the Georgia Court of Appeals’ holding undermines the role of the jury. It may also raise the bar for the admissibility of expert testimony for plaintiffs in FELA cases. In hindsight, Dr. Blickenstaff should have formally “ruled in” Mr. Bowers’ smoking history as a contributing cause of his lung cancer. Doctors cannot look at a chest x-ray and determine what percentage of the cancer was caused by Mr. Bowers’ smoking history versus his railroad exposures. That determination should have been left up to the jurors.
Questions of fact, such as whether a toxic chemical caused the alleged harm, are ultimately for the jury. As noted by the court in Daubert, science is advanced by a broad consideration of multiple hypotheses. 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 technology that could make this determination in a cancer patient. Hence, why should we hold experts to the same standard.
Individual Susceptibility to Toxins
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 20s and get diagnosed with lung cancer in their 60s. Meanwhile, 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. 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.
Works Cited:
https://efast.gaappeals.us/
