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BNSF Railway Co. v. Baca

Court of Appeals of Texas, Second District, Fort Worth

March 29, 2018

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
v.
LEONARD A. BACA APPELLEE

          FROM THE 48TH DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 048-267301-13

          PANEL: WALKER, GABRIEL, and KERR, JJ.

          MEMORANDUM OPINION[1]

          LEE GABRIEL JUSTICE.

         In this 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.[2] 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.

         BNSF 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).

         We 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 proceedings.

         I. BACKGROUND FACTS[3]

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 (Tex. 1998).

         A. Baca's FELA Claim

         Baca sued BNSF alleging a claim under FELA.[4] 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.

         B. Dr. Schonfeld's Report

         Dr. 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.

         Dr. 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 to 1996.

         Baca 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.

         Dr. 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.[5] 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.

         Based upon all of this information, Dr. Schonfeld concluded as follows:

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 noted above.

         BNSF subsequently filed a motion to exclude Dr. Schonfeld's causation opinion.

         II. PROCEDURAL BACKGROUND

         A. BNSF'S Motion to Exclude

         In its motion to exclude, BNSF argued that Dr. Schonfeld's causation opinion was inadmissible because it was unreliable.[6] 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))).

         Having 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."

         With 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."

         Second, 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 certainty.

         BNSF then argued that Dr. Schonfeld's opinion did not satisfy either of these two reliability requirements.

         B. Baca's Response

         In 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 causation testimony."

         Baca 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 case.

         C. The Trial Court's Ruling

         The 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 ...


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