Products Liability Law Reporter

A federal district court held that the opinion of a plaintiff’s causation expert, which was formed using a methodology he made up himself, was inadmissible in a case alleging liability against a railroad for a brakeman’s health problems after exposure to toxic substances.

John Collins worked as a brakeman, conductor, and engineer from 1997 to 2011. During that time, he was exposed to chemicals, solvents, diesel, benzene, and rock-mineral dust. After he developed colon and liver cancer, he sued BNSF Railway Co. under the Federal Employers’ Liability Act, asserting that problems with the defendant’s locomotives, including inadequate ventilation, led to his exposure to toxins and resulted in his cancer. The plaintiff offered the opinion of physician Evan Berger, who asserted that Collins’s exposure to diesel exhaust and asbestos was a contributing factor in his development of colon cancer.

The defendant filed a motion for summary judgment and for the exclusion of Berger’s testimony. The defendant argued that the expert’s testimony should be excluded because it was not based on studies establishing a causal connection between chemical exposure and colon cancer, his methodology was not accepted by the scientific community, his theories had not been subjected to peer review, and his opinions were not based on adequate facts or data.

Granting the motions, the district court found that under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the reliability of an expert’s testimony depends on four factors: whether the scientific theory or technique has been tested; whether the theory has been subjected to peer review and publication; the known or potential rate of error and the existence and maintenance of standards controlling the use of the technique; and the general acceptance of the theory or technique. Here, the court found, Berger’s personal methodology used to form his conclusion applied three factors—dose response, consistency or findings, and strength of association—to the literature on the association between colon cancer and chemical exposure. The plaintiff has not shown that Berger’s methodology is accepted in the scientific community, the court found, adding that the expert also has failed to provide any scientific evidence establishing a link between colon cancer and diesel or asbestos exposure. Thus, the court concluded, Berger cannot make a scientifically reliable conclusion that such exposure led to the plaintiff’s colon cancer.

Finding that Berger’s testimony does not meet the Daubert standard, the court held that the testimony was inadmissible.

Citation: Collins v. BNSF Ry. Co., 2019 WL 1040952 (S.D. Tex. Mar. 5, 2019).