Court of Appeals of Texas, Second District, Fort Worth
BNSF RAILWAY COMPANY (INDIVIDUALLY AND AS SUCCESSOR-IN-INTEREST TO THE BURLINGTON NORTHERN, INC., BURLINGTON NORTHERN & SANTA FE RAILWAY COMPANY AND ATCHISON TOPEKA AND SANTA FE RAILWAY COMPANY) APPELLANT
LEONARD A. BACA APPELLEE
THE 48TH DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO.
WALKER, GABRIEL, and KERR, JJ.
permissive interlocutory appeal involving a claim under the
Federal Employers Liability Act (FELA), Appellee Leonard A.
Baca alleges that while working for Appellant BNSF's
predecessor in interest, he was exposed to asbestos, causing
him to develop asbestosis. See 45 U.S.C.A.
§§ 51-60 (West 2007). Baca retained as an expert
Dr. Alvin Schonfeld, a pulmonologist, who provided a report
in which he concluded Baca's asbestosis was causally
related to his exposure to asbestos during his employment.
BNSF moved to exclude Dr. Schonfeld's causation opinion
as inadmissible because it was unreliable under
well-established caselaw. The trial court denied the motion but
also granted permission in its order for BNSF to immediately
appeal, finding that the order involved a controlling
question of law as to which there is a substantial ground for
difference of opinion and an immediate appeal from the order
would materially advance the ultimate termination of this
litigation. See Tex. Civ. Prac. & Rem. Code
§ 51.014(d) (West 2017); Tex.R.Civ.P. 168.
filed a petition for permissive appeal, which we granted.
See BNSF Ry. Co. v. Baca, No. 02-17-00168-CV, 2017
WL 2570826, at *1 (Tex. App.-Fort Worth June 14, 2017, no
pet.) (mem. op. & order). The controlling question of law
the trial court identified and ruled upon in its order, and
the sole issue in this appeal, is
whether the Federal Employers Liability Act's (45 U.S.C.
§§ 51-60) lower causation standard-i.e.,
whether a railroad's negligence played any part, even the
slightest, in bringing about the injury- makes inapplicable
the expert admissibility standards expressed in cases like
E.I. DuPont de Nemours & Co. v. Robinson, 923
S.W.2d 549 (Tex. 1995) and Merrell Dow Pharmaceuticals,
Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997).
answer no. Because the trial court denied BNSF's motion
to exclude based on the opposite conclusion, we reverse the
trial court's order and remand this case for further
FELA makes any railroad engaged in interstate commerce liable
in damages for an injury to or death of an employee sustained
while employed by the railroad if the injury or death
resulted in whole or in part from the negligence of the
railroad's employees or by reason of any defect or
insufficiency in its equipment due to its negligence.
See 45 U.S.C.A. § 51; Union Pac. R.R.
v. Williams, 85 S.W.3d 162, 165 (Tex. 2002). To
prevail on a FELA claim, a plaintiff must establish the
traditional common-law elements of negligence: duty, breach,
foreseeability, and cause-in-fact. See Tufariello v. Long
Island R.R., 458 F.3d 80, 87 (2d. Cir. 2006);
Abraham v. Union Pac. R.R., 233 S.W.3d 13, 17 (Tex.
App.-Houston [14th Dist.] 2007, pet. denied). But a
plaintiff's burden to establish a railroad's
liability under FELA is lighter than it would be in an
ordinary negligence case because FELA prescribes a relaxed
standard of causation. See Lynch v. Ne. Reg'l
Commuter R.R., 700 F.3d 906, 911 (7th Cir. 2012);
Abraham, 233 S.W.3d at 17. Under that relaxed
causation standard, a plaintiff is entitled to prevail on a
FELA claim if the railroad's negligence played any part,
even the slightest, in producing the injury or death for
which damages are sought. See CSX Transp., Inc. v.
McBride, 564 U.S. 685, 688, 705 (2011); BNSF Ry. Co.
v. Nichols, 379 S.W.3d 378, 382 (Tex. App.-Fort Worth
2012, pet. denied). This relaxed causation standard is often
referred to as a "featherweight" standard. See
Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406
Baca's FELA Claim
sued BNSF alleging a claim under FELA. His theory of
liability is straightforward: he claims that his exposure to
toxic substances and dusts, including asbestos and
asbestos-containing products and materials, while in the
course of his employment with BNSF caused him to develop
asbestosis. Because whether a causal connection exists
between a person's exposure to a chemical and a disease
from which he suffers is outside the common knowledge and
experience of lay persons, expert testimony is generally
required to prove such a causal connection. See Guevara
v. Ferrer, 247 S.W.3d 662, 665 (Tex. 2007);
Abraham, 233 S.W.3d at 18; Pilgrim's Pride
Corp. v. Smoak, 134 S.W.3d 880, 893-94 (Tex.
App.-Texarkana 2004, pet. denied). Baca retained Dr.
Schonfeld to do just that.
Dr. Schonfeld's Report
Schonfeld is a pulmonologist whose qualifications to make an
opinion as to whether Baca's exposure to asbestos during
his employment with BNSF caused him to develop asbestosis are
not at issue. In support of his claim, Baca produced a report
from Dr. Schonfeld, in which Dr. Schonfeld summarized his
opinion concerning that question.
Schonfeld's report states that he interviewed and
examined Baca. The report sets forth the history of
Baca's exposure to asbestos, which was relayed to Dr.
Schonfeld by Baca. According to the report, Baca's
working career has almost exclusively been as a railroad
worker. Baca was laid off from the railroad in approximately
1965, so for a few months he worked for the Arizona Highway
Department, where he used asbestos gloves when removing hot
objects from a stove. But other than those few months in
1965, the report says, Baca worked for the railroad from 1964
told Dr. Schonfeld that on an intermittent basis for about
six months in 1964, he helped demolish a roundhouse in
Winslow, Arizona, and he would sweep up asbestos without the
use of a mask or respirator. Baca also told Dr. Schonfeld
that he rode on diesel engines that had asbestos in the
ceiling and that the asbestos dust would fall on him. Dr.
Schonfeld further stated that Baca remembered asbestos was in
the brake hoses and that for about six months, he fired the
asbestos-clad steam generator on the diesel passenger units
and performed repairs on the steam generator on an as-needed
basis. Baca further told Dr. Schonfeld that he worked in
refrigerator cars that were lined with asbestos and that he
would clean them out and sweep up asbestos. Finally, Baca
told Dr. Schonfeld that he was present while other employees
were changing brake shoes and that he was in other places
where employees were working on and repairing the
railroad's rolling stock.
Schonfeld noted that Baca had never smoked. He performed a
physical examination on Baca, which revealed that his lungs
"were clear to auscultation and percussion." He
also noted a report from Dr. Donald Breyer, who on August 30,
2011, had done a B-reading of a chest x-ray that had been
performed on Baca on August 16, 2011. Dr. Schonfeld relayed Dr.
Breyer's findings, stating Dr. Breyer concluded the x-ray
showed irregular interstitial infiltrates in both mid- and
lower-lung zones having a "shape and size of s/s and a
profusion of 1/0" and that Dr. Breyer had not noted any
pleural abnormalities. Dr. Schonfeld also noted that Baca had
undergone pulmonary function tests in 2012 and that the
results were normal.
upon all of this information, Dr. Schonfeld concluded as
Given [Baca's] history of significant exposures to
asbestos in the workplace and given an appropriate latency
and given the roentgenographic findings described above, I
feel with a reasonable degree of medical certainty that Mr.
Baca is diagnosed as having bilateral asbestosis. I feel with
a reasonable degree of medical certainty that this diagnosis
is causally related to his workplace exposures to asbestos as
subsequently filed a motion to exclude Dr. Schonfeld's
BNSF'S Motion to Exclude
motion to exclude, BNSF argued that Dr. Schonfeld's
causation opinion was inadmissible because it was
unreliable. See Daubert, 509 U.S. at 589
(stating Rule 702 of the Federal Rules of Evidence requires
"that any and all scientific testimony or evidence
admitted is not only relevant, but reliable");
Robinson, 923 S.W.2d at 550, 556-57 (holding Rule
702 of the Texas Rules of Evidence requires the same). It
advanced two grounds for why that opinion was unreliable.
First, BNSF argued Dr. Schonfeld's causation opinion was
not based on a reliable evidentiary foundation. Second, it
argued that Dr. Schonfeld's methodology was unreliable.
In making these two arguments, BNSF acknowledged FELA's
featherweight causation standard. But it asserted that FELA,
though relaxing the standard of causation relative to a
common-law negligence claim, does not similarly relax the
procedural standards for determining the threshold issue of
whether an expert's causation opinion is admissible.
Thus, even though this is a FELA case, BNSF argued, Dr.
Schonfeld's causation opinion must meet state procedural
requirements for reliability to be admissible, including the
requirements of Daubert and Robinson.
See Kan. City S. Ry. Co. v. Oney, 380 S.W.3d 795,
800 (Tex. App.-Houston [14th Dist.] 2012, no pet.) ("As
a general matter, FELA cases adjudicated in state courts are
subject to state procedural rules, but the substantive law
governing them is federal." (quoting St. Louis Sw.
Ry. Co. v. Dickerson, 470 U.S. 409, 411 (1985))).
argued that the trial court was required to apply state
procedural standards of reliability to Dr. Schonfeld's
opinion, BNSF then discussed the standards it believed apply
in this case. Citing Austin v. Kerr-McGee Refining
Corp., 25 S.W.3d 280, 292 (Tex. App.-Texarkana 2000, no
pet.), it noted that a plaintiff in a toxic tort case must
establish both general and specific causation. BNSF focused
on specific causation in particular, citing Havner,
953 S.W.2d at 714, for the proposition that "[s]pecific
causation asks whether the substance at issue caused a
particular plaintiff's injury." It pointed to
caselaw noting that asbestosis appears to be a dose-related
disease, meaning "the more one is exposed, the more
likely the disease is to occur, and the higher the exposure
the more severe the disease is likely to be."
Borg-Warner, 232 S.W.3d at 771 (quoting 3 David L.
Faigman et al., Modern Scientific Evidence: The Law and
Science of Expert Testimony § 28:22, at 447 (2007)). And
it also asserted that medical science has established that
mere background levels of exposure to asbestos are not
sufficient to cause disease; rather, pointing in part to
Borg-Warner, 232 S.W.3d at 771, BNSF stated,
"[t]he accepted threshold exposure for developing
asbestosis is at least 4-5 fiber years (f/cc years), and more
likely 25 to 100 fiber years."
the foregoing in view, BNSF turned to discuss
Daubert and Robinson's reliability
standards. It first contended Daubert and
Robinson require expert testimony to be based upon a
reliable evidentiary foundation. And in the context of an
asbestosis case, BNSF argued, evidence of the amount-or
dose-of asbestos the plaintiff was exposed to is a necessary
evidentiary foundation for an expert to reliably opine that
the plaintiff's exposure to asbestos caused him to
develop asbestosis because without knowing the dose, an
expert has no reliable basis upon which to conclude that the
plaintiff's exposure to asbestos met or exceeded the
scientifically-accepted exposure threshold that is necessary
to cause that disease. To support that contention, BNSF
relied on Borg-Warner, 232 S.W.3d at 773, as well as
Abraham, 233 S.W.3d at 21, in which one of our
sister courts stated that "[k]nowledge of the extent of
exposure to a potentially harmful substance is essential to
any reliable expert opinion that the particular substance
caused a disease."
BNSF contended Daubert and Robinson require
the methodology underlying the expert's testimony to be
reliable. See Daubert, 509 U.S. at 592- 93;
Robinson, 923 S.W.2d at 557. Conducting that
inquiry, BNSF argued, requires the trial court to consider
whether the expert's methodology (1) has been subjected
to peer review and publication, (2) has a high known or
potential rate of error, (3) has standards controlling its
operation, and (4) enjoys general acceptance within a
relevant scientific community. See Daubert, 509 U.S.
at 593-94; Robinson, 923 S.W.2d at 557. Pointing to
Havner, 953 S.W.2d at 715, BNSF acknowledged that in
a toxic-tort case such as this one, a plaintiff simply may
not be able to obtain reliable, direct evidence of the amount
of the plaintiff's exposure to the toxin. But again
pointing to Havner, 953 S.W.2d at 720, BNSF stated
that in such cases, the expert can utilize epidemiological
studies to circumstantially establish that the
plaintiff's exposure or dose levels were comparable to or
greater than the levels of the subjects in those studies, but
the expert must exclude any other plausible causes of the
plaintiff's injury or condition with reasonable
then argued that Dr. Schonfeld's opinion did not satisfy
either of these two reliability requirements.
response to BNSF's motion, Baca acknowledged that because
he brought his FELA claim against BNSF in state court, the
trial court was required to apply federal substantive law but
state procedural law in considering BNSF's motion. He
also acknowledged that decisions concerning the relevance
and, consequently, the admissibility of expert testimony are
generally based upon procedural rules of evidence. However,
Baca argued, whether an expert's testimony is relevant
and, therefore, admissible is a question that necessarily
depends upon the causation standard that applies to the claim
under consideration. Citing Brown v. Western Railway of
Alabama, 338 U.S. 294, 298 (1949), Baca maintained that
state procedural rules cannot be applied in such a way as to
impose unnecessary burdens upon the rights of recovery
authorized by FELA and argued that FELA's featherweight
causation standard should "significantly influence a
determination of the admissibility of an expert's
argued that FELA's featherweight causation standard
impacted state procedural standards governing the
admissibility of expert testimony in two ways. First, Baca
argued, FELA's lower causation standard rendered
Borg-Warner and Havner wholly inapplicable
in FELA cases. Second, Baca insisted that given FELA's
featherweight causation standard, the admissibility standards
set forth in Daubert and Robinson are
relaxed in FELA cases such that the trial court should more
leniently apply Daubert and Robinson to
expert testimony in a FELA case than it would in a non-FELA
The Trial Court's Ruling
trial court considered BNSF's motion to exclude by
submission. On January 20, 2017, the trial court issued a
letter ruling indicating that it had denied the motion.
Additionally, in the letter, the trial court explained the
basis of its ruling: it stated that in denying the motion, it
"went with the plaintiff on the issue of the application
of FELA causation standards to . . . Dr. Schonfeld's
opinion on causation." The trial court ultimately signed
an order denying BNSF's motion to exclude and granting it
permission to seek a permissive interlocutory appeal because
it found the order involved a controlling question of law as
to which there is substantial ground for ...