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VICTIMS OF DIESEL EXPOSURES

YORK v. BNSF – Railroad conductor diagnosed with bladder cancer

Published on January 13th, 2020 by Andrew L. Hughes

Facts:

York was employed as a conductor and brakeman for BNSF Railway from 1976 to 1991. During the course of his employment, York alleges that he was exposed to diesel exhaust and asbestos, which caused him to develop bladder cancer.

The Diagnosis:

After experiencing excess fluid in his torso, York sought medical treatment and underwent a series of tests to determine the root of the issue. When the test results came back, York learned that the initial findings included microscopic hematuria, but that was soon followed with a bladder cancer diagnosis.

The Lawsuit:

York brought suit against BNSF under FELA and the Locomotive Inspection Act, alleging that his exposures to the dangerous chemicals were the cause of his bladder cancer and microscopic hematuria. To support his claims, York retained two experts for trial—Dr. E. Roy Berger and Mr. Ellenbecker. Dr. Berger offered an opinion on York’s cause of bladder cancer, and Mr. Ellenbecker, an industrial hygiene expert, offered testimony on why BNSF was liable for York’s injuries.

Medical Causation:

As a causation specialist, Dr. Berger spent several hours researching the effects of diesel exhaust and asbestos on humans, then produced a report with his findings. Dr. Berger concluded that “York was exposed to diesel fuel, fumes and exhaust from working on and around diesel locomotives on a daily basis. Mr. York was also exposed to creosote from walking on railroad ties while inspecting and making up trains. He was exposed to asbestos located on and in the diesel locomotives and brake shoes on the locomotives and freight cars as well as pipe covering on steam pipes in the building and facilities.”

Foundation for the Medical Opinions:

However, there were issues with Dr. Berger’s report. The above statement was supplied to Dr. Berger from York’s attorneys—Dr. Berger received no information about York or his work conditions from any other source. Additionally, Dr. Berger did not review York’s work history documentation, assess chemical testing records, speak with York, analyze worksite conditions at BNSF, read the deposition transcripts of York or any other witnesses in the case, or interview anyone except York’s counsel in forming his opinions. Dr. Berger also testified that he reviewed a study noting that diesel exhaust and asbestos are associated with bladder cancer, but that he had not come across a study that actually concluded that diesel exhaust was a cause of bladder cancer.

Motion to Bar the Medical Witness:

BNSF asked the court to strike Dr. Berger’s testimony because it was unreliable. Unfortunately for York, the Court found his conclusions to be “inherently unreliable” and “the product of guesswork and assumption—which is not fairly attributable to any scientific data or methodological analysis.”

The Court further noted that because Dr. Berger did not do any work outside of a basic review of York’s medical records, there was no way for the Court to see whether York actually had a presence near a railroad, or that his presence resulted in his bladder cancer. Lastly, the Court found that Dr. Berger’s results could not possibly be accepted as a theory in the scientific community because “Dr. Berger himself admits that he can offer no exposure-level opinions of any kind specific to York.”

Case Outcome:

Dr. Berger’s testimony ended up being fatal to York’s case.  Without his medical causation testimony, York had no way to prove that his injuries were linked to his workplace exposures. Had Dr. Berger taken the time to investigate York’s exposures further, or had he found the studies which actually link diesel exhaust and bladder cancer, the result of the case might have been different. The Court found that the Daubert test – the standard applied by federal courts in determining the admissibility of expert opinions – was weighted against Dr. Berger’s testimony, and therefore his testimony was thrown out of the case. The Court dismissed York’s complaint and entered a judgment for BNSF, closing the case.

Railroad cancer cases are complicated undertakings.  They require a lot of work by the handling attorney and the experts, who should be carefully chosen.  Railroads will aggressively defend each lawsuit, as indicated by this result.

Hughes Law Offices 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 Hughes Law Offices.  If you believe that you have a railroad cancer case, feel free to call 312-877-5588 and speak with an attorney today.

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