In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1279
T IMOTHY M YERS,
Plaintiff-Appellant,
v.
ILLINOIS C ENTRAL R AILROAD C OMPANY,
d/b/a Canadian National/Illinois Central
Railroad Company,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of Illinois.
No. 08 CV 02220—Michael P. McCuskey, Chief Judge.
A RGUED S EPTEMBER 15, 2010—D ECIDED D ECEMBER 15, 2010
Before M ANION, S YKES, and H AMILTON, Circuit Judges.
M ANION, Circuit Judge. For almost thirty years,
Timothy Myers worked for the Illinois Central Railroad
Company. The work was physically demanding and over
the course of his career Myers suffered several injuries,
including cumulative trauma disorders that eventually
forced him to retire. He sued the Railroad claiming that
2 No. 10-1279
these disorders were caused by its negligence. Before
trial, Myers offered reports from three medical doctors
and an ergonomist that would prove the Railroad’s negli-
gence caused his injuries. But the district court barred
Myers’s experts and granted summary judgment for
the Railroad. On appeal, Myers argues that the district
court erred. Because the opinions of Myers’s physicians
were based on speculation, and the nature of his
injuries necessitates expert testimony about specific
causation that the ergonomist could not provide,
we affirm.
I.
Myers is 50 years old, and he began working for the
Railroad after graduating from high school in 1978. Over
the years, he worked in various capacities, including
as a brakeman, a switchman, and a conductor. Since
the early 1990s, the job titles brakeman, switchman, and
conductor included the same employment tasks, and
we use them interchangeably. Regardless of the title,
Myers’s work was physically demanding. He would get
on and off a slow-moving train 30 or 35 times a day
and walk several miles every day on large, rocky ballast.
Ballast is simply the rock that surrounds the train
tracks. Sometimes the ballast was covered with bean
meal or corn meal, which made it like walking through
mud during the summer time and walking on ice in
the winter. In addition to walking miles in those condi-
tions, as many as 50 times a day Myers would throw
the switch that changes tracks that a train is traveling on.
No. 10-1279 3
And he would connect the handbrakes and pull the
pins that connect the train cars. These tasks varied in dif-
ficulty depending on the rail yard and the season.
Besides being physically demanding, this work was
also dangerous. Myers fell off a tank car in 1981 and
broke his right ankle and hurt his left knee, which
required surgery. A few years later, he stepped on a
large rock while he was getting off the train and injured
his right knee. He had surgery on that knee too. Then
in 1987, he injured his back after trying to move a four-
hundred-pound draw bar, which is a device used for
coupling a train car to the engine. As a result he
missed three to five months of work. After that, Myers
was injury-free until 1998 when he injured his knee and
shoulder trying to force a cab door open. The knee im-
proved with rest, but he had to have surgery on his
shoulder.
Naturally these injuries and the nature of this work
have taken a toll on Myers’s body. Between 2004 and
2006, he began to experience pain in his left elbow, his
right knee, and his back and neck. The problem with
his left elbow was diagnosed as a medial epicondylitis,
which is commonly called “golfer’s elbow”; his right
knee was diagnosed with osteoarthritis, which is com-
monly referred to as degenerative arthritis; and he had
several serious problems with his back, including sev-
eral herniated disks. Each problem required surgery—
two, in the case of his back.
In 2008, he sued the Railroad under the Federal Em-
ployers’ Liability Act, 45 U.S.C. § 51, claiming that the
4 No. 10-1279
Railroad’s failure to provide him with a reasonably
safe workplace caused the problems with his elbow,
knee, and back and neck. The physicians who treated
Myers for each of these injuries were listed as experts
and expected to testify at trial. Myers also expected to
call an ergonomist, Dr. Tyler Kress, who would testify
at trial about how the dangerous conditions in the Rail-
road’s yards could have caused Myers’s injuries.
Before trial, however, the district court struck the four
experts. It found that under Daubert v. Merrell Dow
Pharmaceuticals, 509 U.S. 579 (1993), none of the experts’
opinions was based on reliable procedures or methods.
It reasoned that the experts did not have an adequate
understanding of Myers’s medical history or his work
with the Railroad to give an opinion about what caused
his injuries. Concerning the ergonomist, the court found
that because his analysis of railroad conditions was not
focused on Myers’s work there, his opinion was not
reliable. After striking the experts, the district court
granted the Railroad’s motion for summary judgment,
and this appeal followed.
II.
There are two issues here. The first is whether the
district court erred by finding that Myers needed expert
testimony to establish specific causation and granting
summary judgment for the Railroad. The second is
whether the district court correctly applied Daubert
when it struck Myers’s physicians from giving expert
testimony. We review de novo the granting of summary
No. 10-1279 5
judgment. Gayton v. McCoy, 593 F.3d 610, 619 (7th Cir.
2010). And we review for an abuse of discretion the
district court’s decision to exclude the expert testimony.
Happel v. Walmart Stores, Inc., 602 F.3d 820, 824-25 (7th
Cir. 2010).
III.
The primary question on appeal is whether Myers
needs expert testimony to establish that the Railroad’s
negligence specifically caused the cumulative trauma
injuries to his knee, elbow, and back and neck. In the
district court and here, Myers argues that he merely
needs to have expert testimony establishing that the
conditions at the Railroad can cause the injuries that
Myers suffers from. In support of this, Myers planned
to call an ergonomist, Dr. Tyler Kress, to testify that
the Railroad’s practices can cause the same ailments
afflicting Myers.
The district court struck the ergonomist because he
could not tie Myers’s work and the Railroad’s practices
to Myers’s specific injuries. Myers argues that although
Kress could not testify about what specifically caused
his injuries, he could testify generally about the dangers
that come with working in the Railroad’s yards. And
from that alone, the jury could find that Myers’s in-
juries were caused by the Railroad. Thus, the issue
Myers presents on appeal is not whether the ergonomist
should have been excluded because he could not
testify about the specifics of how Myers’s work caused
6 No. 10-1279
his injury, but whether Kress’s general causation testi-
mony is sufficient to survive summary judgment.
Debate continues over the issue of how plaintiffs must
establish causation under FELA. See Norfolk Southern
Ry. Co. v. Sorrell, 549 U.S. 158, 173-175 & fn* (2007)
(Souter, J., concurring) (surveying cases); id. at 178-181
(Ginsburg, J., concurring) (same); see also McBride v. CSX
Transp., Inc., 598 F.3d 388 (7th Cir. 2010) (Ripple, J.), cert.
granted, 79 U.S.L.W. 3562 (U.S. Nov. 29, 2010) (No. 10-235).
It is an important issue and one that has come to the
forefront with the changing nature of the injuries that
railroad workers suffer. CSX Transp., Inc. v. Miller, 858
A.2d 1025 (Md. App. Ct. 2004) (surveying FELA’s develop-
ment and application to a cumulative trauma injuries);
Aparicio v. Norfolk & Western Ry. Co., 84 F.3d 803, 811
(6th Cir. 1996), abrogated on other grounds by Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); see
also Melissa Sandoval Greenidge, Getting the Train on the
Right Track: A Modern Proposal for Changes to the Federal
Employers’ Liability Act, 41 McGeorge L. Rev. 407 (2010).
The Act was passed at a time when every year
thousands of railroad workers were killed and tens of
thousands were maimed, and it “was designed to put on
the railroad industry some of the cost for the legs, eyes,
arms, and lives which it consumed in its operations.”
Wilkerson v. McCarthy, 336 U.S. 53, 68 (1949) (Douglas, J.,
concurring). Although workers still get injured, the loss
of lives and limbs is fortunately and increasingly rare.
The injuries commonly reported now are cumulative
trauma injuries or disorders; they “are characterized as
‘wear and tear’ on the tissue surrounding joints, ligaments,
No. 10-1279 7
and tendons.” Gutierrez v. Excel Corp., 106 F.3d 683, 686
(5th Cir. 1997). These cover everything from Myers’s
ailments to carpal tunnel syndrome and hearing loss.
And “while CTDs are generally not caused by any one
specific traumatic event, there are certain risk factors
associated with cumulative trauma, including repeti-
tion, force, vibration, cold, and posture.” Id.; see also
Greenidge, supra at 408 & 419-21.
These injuries are still very serious and possibly compen-
sable under the Act. But “the Act did not make the em-
ployer an insurer. The liability which it imposed was
the liability for negligence.” Wilkerson, 336 U.S. at 68
(Douglas, J., concurring). That, of course, means an em-
ployee must prove that the railroad was negligent and
that the railroad’s negligence caused the injury at issue.
Claar v. Burlington N.R.R. Co., 29 F.3d 499, 503 (9th Cir.
1994). And nothing in the Act alters the accepted fact
that unless the connection between the negligence and
the injury is a kind that would be obvious to laymen,
expert testimony is required. Brooks v. Union Pacific R. Co.,
620 F.3d 896, 900 (8th Cir. 2010).
While the plaintiff is obligated to prove some degree
of negligence, the question remains whether expert testi-
mony is required in that process. Expert testimony is
unnecessary in cases where a layperson can understand
what caused the injury. See Wallace v. McGlothan, 606
F.3d 410, 420 (7th Cir. 2010). So, for example, when a
plaintiff suffers from a broken leg or a gash when hit by
a vehicle, he doesn’t need to produce expert testimony.
See Moody v. Maine Cent. R.R. Co., 823 F.2d 693, 695 (1st
8 No. 10-1279
Cir. 1987). But when there is no obvious origin to an
injury and it has “multiple potential etiologies, expert
testimony is necessary to establish causation.” Wills v.
Amerada Hess Corp., 379 F.3d 32, 46-47 (2d Cir. 2004);
accord Claar, 29 F.3d at 504 (noting “expert testimony is
necessary to establish even that small quantum of causa-
tion required by FELA”).
Here, neither Myers nor his physicians could point to a
specific injury or moment that brought on the problems
with his knee, elbow, and back and neck. Instead, Myers
claims that they are the product of years of working for
the Railroad. That type of gradual deterioration is
precisely what defines cumulative trauma injuries:
“Cumulative trauma disorder refers not to one specific
injury, but to numerous disorders caused by the perfor-
mance of repetitive work over a long period of time.”
Gutierrez, 106 F.3d at 685-86. They are simply “wear and
tear” on the body, and they can be the product of many
factors. Id.
When an injury is of this nature, determining what
caused it is not usually obvious to a layman and thus
requires expert testimony. For most cumulative trauma
injuries, courts follow the general principle that a
layman could not discern the specific cause and thus
they have required expert testimony about causation.
Brooks, 620 F.3d 896, 899-900 (expert needed for degen-
erative disk disease); Granfield v. CSX Transp., Inc., 597
F.3d 474, 484-487 (1st Cir. 2010) (expert needed for
epicondylitis); Moody, 823 F.2d at 696 (expert testimony
needed for emotional trauma); see also Greenidge, supra
No. 10-1279 9
at 423-26 (discussing cases); but see Hardyman v. Norfolk
& Western Railway, Co., 243 F.3d 255 (6th Cir. 2001) (in
dicta noting that general causation testimony is enough
to send the case to a jury for carpal tunnel syndrome).
Of course, the label cumulative trauma injuries is
broad, and in the case of hearing loss from the railroad
failing to provide a worker with ear protection, the
Second Circuit has held that no expert testimony was
necessary: “there is a generally understood causal con-
nection between physical phenomena—in this case,
very loud sounds, which we refer to colloquially as ‘deaf-
ening’—and the alleged injury [hearing loss] that ‘would
be obvious to laymen.’ ” Tufariello v. Long Island R. Co.,
458 F.3d 80, 88 (2d Cir. 2006). But that case is the excep-
tion and not the norm for whether expert testimony
establishing specific causation is necessary for cumula-
tive trauma disorders.
Here, the origin of Myers’s various injuries would not
be obvious to a layman. They can be caused by a myriad
of factors, none of which is obvious or certain. Gutierrez,
106 F.3d at 686. Thus, to tie them to his working condi-
tions at the Railroad, Myers needs expert testimony.
To be clear, the ergonomist could testify as an expert
about how dangerous the railroad yard’s conditions
were, but that does not mean he is qualified to testify
about what caused Myers’s injuries. This is a scenario
similar to what many plaintiffs face in toxic tort cases:
an expert can testify that a chemical can cause the plain-
tiff’s malady but he may not be qualified to testify that
this chemical caused this particular plaintiff’s malady.
10 No. 10-1279
Claar, 29 F.3d at 504; see Golden v. CH2M Hill Hanford
Group, Inc., 528 F.3d 681, 683 (9th Cir. 2008). “The ques-
tion we must ask is not whether an expert witness is
qualified in general, but whether his qualifications
provide a foundation for [him] to answer a specific ques-
tion.” Gayton, 593 F.3d at 617. Here, the specific question
is whether Myers’s work for the Railroad caused his
ailments. Because the ergonomist could not answer
that question, to avoid summary judgment Myers would
have to establish evidence of specific causation from
another source.
Myers planned to establish that the Railroad’s neg-
ligence caused his injuries from testimony of his three
treating physicians. Before trial, the Railroad moved to
strike the experts’ testimony as unreliable under Daubert.
Under Federal Rule of Evidence 702 and Daubert, the
district court must engage in a three-step analysis
before admitting expert testimony. It must determine
whether the witness is qualified; whether the expert’s
methodology is scientifically reliable; and whether the
testimony will “assist the trier of fact to understand the
evidence or to determine a fact in issue.” Ervin v. Johnson
& Johnson, Inc., 492 F.3d 901, 904 (7th Cir. 2007).
In this case, the district court’s analysis focused on
the physicians’ methodology, and it concluded that the
physicians’ lack of knowledge of Myers’s medical
history and duties with the Railroad rendered their
opinions unreliable under Daubert. On appeal, Myers
argues that the physicians used a “differential diagnosis”
to establish what caused his ailments, and rather than
striking the experts, any ignorance of his medical
No. 10-1279 11
history or work duties should have been explored on
cross-examination.
Differential diagnosis is an accepted and valid meth-
odology for an expert to render an opinion about the
identity of a specific ailment. Happel, 602 F.3d at 826.
When a physician makes a differential diagnosis, he
systematically compares and contrasts clinical findings
from a patient’s medical history to determine “which of
two or more diseases with similar symptoms is the
one from which the patient is suffering.” Id. at 826, n.7
(quotation omitted). The question here, however, is not
what Myers was suffering from but what caused his
ailments, and a better term to describe it is a “differential
etiology.” Tamraz v. Lincoln Elec. Co., 620 F.3d 665, 673-74
(6th Cir. 2010). Etiology is the study of causation. V The
Oxford English Dictionary 427 (2d ed. 1989). And in a
differential etiology, the doctor rules in all the potential
causes of a patient’s ailment and then by systematically
ruling out causes that would not apply to the patient,
the physician arrives at what is the likely cause of the
ailment. There is nothing controversial about that meth-
odology. Tamraz, 620 F.3d at 673-74. The question of
whether it is reliable under Daubert is made on a case-by-
case basis, focused on which potential causes should
be “ruled in” and which should be “ruled out.” Ervin,
492 F.3d at 904.
Other than Myers’s assertion that the physicians did a
differential etiology, there is nothing in the record that
suggests they did, or if it was done that it could be con-
sidered reliable, because they did not rule in any causes
12 No. 10-1279
of Myers’s ailment, nor did they rule out anything. They
simply opined that it was the Railroad’s working condi-
tions that caused Myers’s ailment. Given the nature of
Myers’s injury and his work, it seems natural to offer
such an opinion. But the law demands more than a
casual diagnosis that a doctor may offer a friend or ac-
quaintance outside the office about what could be
causing his aches and pains.
The physicians’ deposition testimonies made it clear
that they were clearly offering something less than a
causation opinion that could qualify under Daubert. On
this point, the physician who operated on Myers’s back
did not know about Myers’s earlier back injury until
after he rendered his opinion. When asked about what
role Myers’s 1987 back injury would play in his current
condition, the physician responded:
Well, I don’t really think that it makes a hell of a lot
of difference one way or the other. You put your
interest in what he has got wrong with him on the
day you treat him. Now, if you are interested in causa-
tion, then from your standpoint, it’s important.
Another physician was also candid when questioned
about the fact that he had not explored what Myers did
at work and how that affected his causation opinion:
[R]eally the thrust of my business is to find out what
his problems are and what we think can be done
about them. So, again, I’m seeing him as a medical doctor,
not as a—you know, seeing him for a work history type
charge. So, you know, my charge—I would have spent
No. 10-1279 13
more time on that. Since that was not my charge, it was
really just to get a rough idea of what things he did.
The physicians’ testimonies made it clear that they were
offering a general medical opinion about his condition
at the time of treatment and an assumption that it devel-
oped over time at the Railroad. Other than common
sense, there was no methodology to their etiology.
If a differential etiology was used and the experts were
unaware of aspects of his work or medical history, that
doesn’t necessarily mean the expert should be struck.
On this point, we have instructed that when a med-
ical expert has “relied upon a patient’s self-reported
history and that history is found to be inaccurate, district
courts usually should allow those inaccuracies in that
history to be explored through cross-examination.” Walker
v. Soo Line R.R. Co., 208 F.3d 581, 586-87 (7th Cir. 2000).
But here it’s clear that the physicians did not use a dif-
ferential etiology; they knew little to nothing about
Myers’s medical history or his work. They did not “rule
in” any potential causes or “rule out” any potential
causes. They simply treated Myers and assumed his
injuries stemmed from his work. In other words, the
basis for their opinions is properly characterized as a
hunch or an informed guess. And “the courtroom is not
the place for scientific guesswork, even of the inspired
sort.” Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 319 (7th
Cir. 1996). Thus, the district court did not abuse its dis-
cretion by excluding the testimony of Myers’s physi-
cians. And because Myers needed expert testimony to
establish causation and offered none, the district court
14 No. 10-1279
did not err in granting summary judgment for the Rail-
road. Doty v. Illinois Cent. R.R. Co., 162 F.3d 460, 463 (7th
Cir. 1998).
IV.
Therefore, the nature of the trauma injuries that Myers
accumulated required expert testimony establishing
specific causation. The district court did not abuse its
discretion by excluding the testimony of Myers’s physi-
cians, and because that was the only evidence offered
for specific causation, the district court did not err
in granting summary judgment for the Railroad. Ac-
cordingly, the judgment of the district court is A FFIRMED.
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