In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13‐2102
SHANNON BROWN,
Plaintiff‐Appellant,
v.
BURLINGTON NORTHERN SANTA FE
RAILWAY COMPANY,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 1:09cv01380‐JAG — John A. Gorman, Magistrate Judge.
____________________
ARGUED MAY 19, 2014 — DECIDED AUGUST 29, 2014
____________________
Before ROVNER, WILLIAMS, and TINDER, Circuit Judges.
TINDER, Circuit Judge. Shannon Brown appeals the dis‐
missal of his lawsuit against the Burlington Northern Santa
Fe Railway Company (“BNSF”), which he filed under the
Federal Employers’ Liability Act (“FELA”), 45 U.S.C. § 51 et
seq. The sole issue he disputes on appeal is the district
2 No. 13‐2102
court’s1 decision to exclude the testimony of his expert wit‐
ness, David Fletcher, M.D. We conclude that the district
court did not abuse its discretion and therefore affirm its
grant of summary judgment.
I. Background
At the time of this appeal, Brown was a 36‐year‐old man
residing in Knoxville, Illinois. He began his employment
with BNSF in 1996 as a member of the Maintenance of Way
Department. From 2006 to 2009 he progressed through a va‐
riety of job duties as a foreman, track inspector, and machine
operator. In 2007 a family physician diagnosed Brown with
carpal tunnel syndrome in both wrists and cubital tunnel
syndrome in his left elbow.2 On October 25 of that year,
1 The parties consented to a referral of this case to a magistrate judge,
who excluded Brown’s proposed expert testimony and granted sum‐
mary judgment. For simplicity we will refer to the judge as the district
court.
2 According to WebMD, “[c]arpal tunnel syndrome occurs when the me‐
dian nerve is compressed because of swelling of the nerve or tendons or
both. … When this nerve becomes impinged, or pinched, numbness, tin‐
gling, and sometimes pain of the affected fingers and hand may occur
and radiate into the forearm.” At its most severe, the condition may re‐
sult in “permanent deterioration of muscle tissue and loss of hand func‐
tion.” Carpal Tunnel Syndrome, http://www.webmd.com/pain‐
management/carpal‐tunnel/carpal‐tunnel‐syndrome (last visited Aug. 25,
2014). Similarly, “[c]ubital tunnel syndrome … is caused by increased
pressure on the ulnar nerve, which passes close to the skin’s surface in
the area of the elbow commonly known as the ‘funny bone.’” Symptoms
of cubital tunnel syndrome include “[p]ain and numbness in the elbow,”
“[t]ingling, especially in the ring and little fingers,” “[w]eakness affecting
the ring and little fingers,” and “[d]ecreased ability to pinch the thumb
and little finger.” Cubital and Radial Tunnel Syndrome,
No. 13‐2102 3
Brown allegedly injured his right shoulder after lifting heavy
angle bars at work.3 He reported the alleged injury only after
increasing pain prompted him to visit an emergency room.
His family physician could not detect any injury despite
conducting tests, and instead sent Brown to physical thera‐
py. By December 3rd of 2007, Brown reported that his
shoulder was pain free, and his doctor cleared him to return
to work with no restrictions.
The day following his official return date, however,
Brown had surgery on his right wrist to relieve his carpal
tunnel syndrome. Surgery on the other wrist followed on
January 22, 2008. He returned to work on March 24 without
any restrictions. He had surgery on his left elbow in October
of 2009 to treat his cubital tunnel syndrome, and he was
cleared to return to work on January 4, 2010. Brown’s sur‐
geon for both of his wrist surgeries and his elbow surgery
informed him that all three procedures were successful and
resolved his symptoms. Brown would remain employed at
BNSF without medical restriction until September 28, 2011,
at which point he no longer worked at the company.
Before returning from his elbow surgery in 2009, Brown
sued BNSF under FELA, alleging that the railway negligent‐
ly caused cumulative trauma to his wrists, elbow, and
shoulder. According to Brown, his duties at the railroad re‐
http://www.webmd.com/pain‐management/cubital‐radial‐tunnel‐
syndrome (last visited Aug. 25, 2014).
3 Some disagreement persists in the record as to what exactly Brown
claims to have been lifting when the alleged injury occurred, but that
issue is irrelevant for our purposes.
4 No. 13‐2102
quired him to use vibrating tools that either caused or ag‐
gravated his wrist conditions. He further alleges that, in Sep‐
tember of 2009, he was required to work excessive hours
without proper equipment while BNSF was short‐staffed; he
maintains that this exertion triggered or exacerbated the cu‐
bital tunnel syndrome in his left elbow, prompting his sur‐
gery the next month.
Discovery commenced, and Brown retained Dr. Fletcher
to examine him and provide expert medical testimony. Dr.
Fletcher’s expertise in diagnosing railway work injuries and
identifying their cause is unchallenged. He is licensed to
practice medicine in Illinois, and is a full‐time physician. He
graduated from Rush Medical College in Chicago and holds
a Master’s Degree in Public Health from the University of
California, Berkeley. Dr. Fletcher is a Fellow of the American
College of Occupational and Environmental Medicine and
has been appointed Clinical Assistant Professor at the Uni‐
versity of Illinois and Southern Illinois University. In 2012 he
was one of two doctors chosen to serve on the Illinois Work‐
ers’ Compensation Commission. He is also the medical di‐
rector of SafeWorks, Illinois, a private occupational health
clinic. Starting in 1985 and continuing through his 2012 dep‐
osition, Dr. Fletcher occasionally served as an independent
contractor with two railroad companies, the Norfolk South‐
ern Corporation and the Canadian National Railway Com‐
pany. In that capacity he treated work‐related injuries and
performed physicals, tested employees’ fitness for duty, and
conducted some ergonomic evaluations. He has served as an
expert witness in past FELA cases.
Dr. Fletcher eventually submitted four expert reports on
Brown’s behalf, although the last was excluded as untimely
No. 13‐2102 5
in a ruling that Brown does not challenge. The first report
discussed Brown’s medical records and his independent
medical evaluation that Dr. Fletcher conducted on August 2,
2011. Dr. Fletcher reported that Brown had no history of
smoking, diabetes, or other common health risk factors. He
noted that Brown reported a needle‐like sensation in the
palms of both hands that was minimal and easy to ignore.
Brown also told Dr. Fletcher that his shoulder was “97%”
better and caused him no pain. Dr. Fletcher inquired as to
Brown’s employment, and Brown told him that his job re‐
quired him to lift 100 pounds from the floor and 50 pounds
overhead. He further reported that he worked between 12
and 16 hours a day, repeatedly lifting between 35 and 40
pounds and using hydraulic and vibratory tools. He in‐
formed Dr. Fletcher that as a foreman he commonly had to
repair track, shovel dirt, drive spikes, use sledge hammers,
and lift heavy metal bars.
Dr. Fletcher’s first report also relayed the results of his
physical examination of Brown. The report notes atrophy
and loss of muscle strength in his left elbow. Dr. Fletcher
conducted a Tinel’s test on the elbow, which revealed nerve
irritation. An elbow compression test similarly uncovered
signs of injury. Dr. Fletcher also indicated impingement of
Brown’s right shoulder, but his report goes on to contradict
that finding by reporting that “impingement signs were
negative bilaterally.” The report states that an MRI would be
necessary to reach a “formal diagnosis” of any shoulder in‐
jury, but it notes that Brown could not undergo that test be‐
cause he had a pacemaker in his chest. Dr. Fletcher recom‐
mended an arthroscopic procedure to identify any problems,
but no such surgery was performed. Brown has not pointed
out any other test confirming an injury to his shoulder. Nev‐
6 No. 13‐2102
ertheless, Dr. Fletcher attributed Brown’s wrist, elbow, and
shoulder injuries to his work at BNSF.
Dr. Fletcher’s second report was an update on Brown’s
progress, issued on January 3, 2012, after he had examined
him a second time. Brown reported pins and needles in his
left elbow and numbness in his left hand, and Dr. Fletcher
concluded that he required another elbow surgery. He also
stated that Brown “had incurred permanent loss” of function
and required “[p]ermanent job restrictions.” Again Dr.
Fletcher attributed these medical problems to Brown’s job.
In his third report, dated February 27, 2012, Dr. Fletcher
more closely examined the cause of Brown’s condition. After
summarizing Brown’s health concerns, he stated that he suf‐
fered from a “cumulative trauma disorder” caused by his
work on the railroad. Carpal tunnel syndrome and cubital
tunnel syndrome are both examples of cumulative trauma
disorder because they result from repeated applications of
force over time rather than one discrete event. Dr. Fletcher
stated that he came to this conclusion by the process of dif‐
ferential etiology. “[I]n 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 ap‐
ply to the patient, the physician arrives at what is the likely
cause of the ailment.” Myers v. Ill. Cent. R.R. Co., 629 F.3d
644, 644 (7th Cir. 2010).
As we have noted, to conduct his method of differential
etiology, Dr. Fletcher’s third report states that he employed a
“job site analysis,” which consists of “traveling to the literal
worksite with the patient and reviewing his or her job du‐
ties; measuring frequency and force required for various job
tasks; videotaping and photographing job task activities for
No. 13‐2102 7
further analysis”; identifying “variances in the written job
description as compared to the actual duties performed; us‐
ing scientific measuring tools, such as a Chatillon gauge,
which constitutes an objective measure of force; assessing
push/pull job function factors; and evaluating the level of
force exertion required to perform a job task.” Through the
job site analysis, Dr. Fletcher could “rule in” Brown’s rail‐
road work as a cause of his injury.
BNSF deposed Dr. Fletcher, and his accounting of his eti‐
ological investigation in this case differed considerably from
the typical methodology described in his reports. Instead of
going to Brown’s work site and making scientific measure‐
ments and records, Dr. Fletcher simply photographed Brown
holding various work tools at the BNSF rail yard. He testi‐
fied that the railroad did not allow him to observe Brown or
a similarly situated employee perform representative work
tasks. (Brown did not, however, move to compel BNSF’s co‐
operation on this point.) Instead, Dr. Fletcher based his opin‐
ion on observations he has made as an independent contrac‐
tor since 1985. But when pressed for specifics, he recounted
occasional memories of railroad work he witnessed ten years
ago on a different site from the one Brown worked on. Dr.
Fletcher also admitted that he never learned how long
Brown would have used certain equipment each day, and he
acknowledged that Brown’s work varied over the course of a
day and from one day to the next. He also stated that he did
not consider how Brown’s responsibilities changed as he
progressed at his job to track inspector and then to foreman.
Moreover, Fletcher’s report did not discuss a number of
potential alternative causes for Brown’s ailment. During his
deposition, Dr. Fletcher stated that he had been aware of
8 No. 13‐2102
some, but not all, of the relevant information surrounding
these potential alternative causes. For example, Brown was a
volunteer firefighter. Fletcher testified that he knew this but
that he did not know how long Brown had worked as a fire‐
fighter. He never observed Brown’s volunteer work there or
learned his job duties. Brown also had a family history of
cumulative trauma disorder, which Dr. Fletcher recognized
but discounted. Although the doctor acknowledged that the
“higher the [individual’s body mass index or “BMI”] the
more likely obesity could be an independent risk factor,” he
dismissed this potential cause because Brown’s BMI was
“[b]orderline” and he was not “morbidly obese.” Dr. Fletch‐
er did know that Brown regularly rode a motorcycle during
the relevant time period, but he did not know the frequency
or duration of the rides, or the type of motorcycle he owned.
He concluded that any effect from the motorcycle would be
minor because, he stated, Brown spent considerably more
time working than riding. Finally, although Dr. Fletcher re‐
ported that Brown had no history of smoking, Brown him‐
self admitted in his deposition that he had quit smoking on‐
ly two or three years earlier.
The district court excluded Dr. Fletcher’s reports and tes‐
timony under Federal Rules of Evidence 702 and 703. The
court held that Dr. Fletcher’s methods were unreliable be‐
cause he deviated substantially from the recognized scien‐
tific practices that he described in his reports. As to Brown’s
shoulder, the district court doubted whether Brown had
even sustained an injury because Dr. Fletcher had conceded
that no formal diagnosis was possible without an MRI. More
broadly, the district court reasoned that Dr. Fletcher was of‐
fering an ergonomic opinion as to the relation between
Brown’s job duties and his injury, and that such opinions re‐
No. 13‐2102 9
quired a sound job site analysis of the type Dr. Fletcher men‐
tions in his report. But because Dr. Fletcher never actually
performed a job site analysis or observed Brown at work, his
opinion lacked a reliable, testable basis. Moreover, Dr.
Fletcher claimed that he was applying the method of differ‐
ential etiology to “rule out” other potential causes, but the
district court found that he failed to meaningfully consider
or investigate several such possible risk factors for Brown’s
condition, such as his motorcycle riding, volunteer fire‐
fighting, obesity, smoking, and family history of cumulative
trauma disorders. In other words, Dr. Fletcher had failed
both to “rule out” several possible causes and also to proper‐
ly “rule in” Brown’s job as a cause of his condition. Because
Dr. Fletcher did not adhere to his own stated methods for
performing a job site analysis or differential etiology, the dis‐
trict court found that he in fact adhered to no reliable meth‐
od, but instead impermissibly relied on his own subjective
experience and untestable assumptions.
Brown’s case for establishing his work conditions as a
cause of his injury depended on Dr. Fletcher’s testimony, so
the district court dismissed his FELA claim. This appeal fol‐
lowed.
II. Discussion
Congress enacted FELA in the first decade of the twenti‐
eth century in response to “the physical dangers of railroad‐
ing that resulted in the death or maiming of thousands of
workers every year.” Consol. Rail Corp. v. Gottshall, 512 U.S.
532, 542 (1994). The Act requires a plaintiff to prove all the
elements of a negligence claim against his employer, but
courts have “liberally construed” the statute “to further
FELA’s humanitarian purposes.” Id. at 542–43. In particular,
10 No. 13‐2102
a FELA claim is judged according to “a relaxed standard of
causation” whereby a plaintiff must prove only that the em‐
ployer’s “negligence played any part, even the slightest, in
producing the injury or death for which damages are
sought.” Id. at 543 (quoting Rogers v. Mo. Pac. R.R. Co., 352
U.S. 500, 506 (1957)).
The relaxed causation standard is simple enough to meet
in cases involving readily understood injuries, e.g., those that
result from being hit by a train. “But when there is no obvi‐
ous origin to an injury and it has multiple potential etiolo‐
gies, expert testimony is necessary to establish causation.”
Myers, 629 F.3d at 643 (citation and quotation marks omit‐
ted). In particular, “[f]or 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.” Id. Brown contends that he has
suffered cumulative trauma injuries to his wrists and el‐
bows, along with a shoulder injury, and he concedes that he
was required to provide admissible expert testimony to es‐
tablish causation for each. We are not so sure about that.
Brown allegedly injured his shoulder performing a discrete
act of lifting that could be readily understood by a layman.
And in Myers we noted dicta in the Sixth Circuit case Har‐
dyman v. Norfolk & Western Railway, Co., 243 F.3d 255 (6th Cir.
2001), indicating that “general causation testimony is
enough to send the case to a jury for carpal tunnel syn‐
drome.” Myers, 629 F.3d at 643. We do not know whether
summary judgment will always be appropriate in the ab‐
sence of expert testimony where the plaintiff has alleged
such discrete, easily comprehensible injuries. Nevertheless,
Brown chose to pursue a standard cumulative trauma theory
and has not argued that his case could survive summary
No. 13‐2102 11
judgment without expert testimony. Nor does he point to
sufficient lay evidence in the record to support a finding of
fault for his shoulder injury. Therefore, we agree with the
parties that we may reverse the district court’s grant of
summary judgment only if we also reverse its decision to ex‐
clude Dr. Fletcher’s testimony.
A district court’s decision to exclude expert testimony is
governed by Federal Rules of Evidence 702 and 703, as con‐
strued by the Supreme Court in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993). Rule 702(c) requires
that an expert’s testimony be “the product of reliable princi‐
ples and methods.” Similarly, Rule 703 requires the expert to
rely on “facts or data,” as opposed to subjective impressions.
Daubert laid out four factors by which courts can evaluate
the reliability of expert testimony: (1) whether the expert’s
conclusions are falsifiable; (2) whether the expert’s method
has been subject to peer review; (3) whether there is a known
error rate associated with the technique; and (4) whether the
method is generally accepted in the relevant scientific com‐
munity. 509 U.S. at 593–94.
Dr. Fletcher sought to offer a differential etiology in this
case. “Differential diagnosis is an accepted and valid meth‐
odology for an expert to render an opinion about the identi‐
ty of a specific ailment.” Myers, 629 F.3d at 644. So is differ‐
ential etiology, which focuses on the cause, not just the iden‐
tity, of an ailment. Id. But an expert still must faithfully ap‐
ply the method to the facts at hand. A differential etiology,
like a differential diagnosis, “satisfies a Daubert analysis if
the expert uses reliable methods. … Determining the reliabil‐
ity of an expert’s differential diagnosis is a case‐by‐case de‐
termination.” Ervin v. Johnson & Johnson, Inc., 492 F.3d 901,
12 No. 13‐2102
904 (7th Cir. 2007); see also Myers, 629 F.3d at 644. The party
offering the expert testimony bears the burden of proving its
reliability. Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705
(7th Cir. 2009).
In reviewing the district court’s decision to exclude ex‐
pert testimony, this court “first undertakes a de novo review
of whether the district court properly followed the frame‐
work set forth in Daubert … .” United States v. Hall, 165 F.3d
1095, 1101 (7th Cir. 1999). If the court properly understood
its role therein, we then review its ultimate decision to ex‐
clude expert testimony for an abuse of discretion. Kumho Tire
Co. v. Carmichael, 526 U.S. 137, 152 (1999). This deference is in
keeping with the district court’s vital “gatekeeping” role in
ensuring that only helpful, legitimate expert testimony
reaches the jury. Daubert, 509 U.S. at 597.
Brown first contends that the district court “exceeded the
scope of its gatekeeping function” under Daubert by nitpick‐
ing Dr. Fletcher’s factual observations and gainsaying his
conclusions—both of which are properly roles for the jury—
rather than simply determining whether he used a reliable
method. Appellant’s Br. at 36. Second, Brown argues that Dr.
Fletcher did properly adhere to his method of differential
etiology and that the district court abused its discretion in
finding otherwise. We take both arguments in turn.
The district court properly understood the Daubert
framework. It noted that “[t]he court’s role as gatekeeper is
strictly limited to an examination of the expert’s methodolo‐
gy.” Brown v. Burlington N. Santa Fe Ry. Co., No. 09‐1380,
2013 WL 1729046 at *8 (C.D. Ill. Apr. 22, 2013). Brown re‐
sponds that the district court’s reasoning belies that
acknowledgement. Specifically, the district court faulted Dr.
No. 13‐2102 13
Fletcher for apparently relying on Brown’s recitation of his
medical history to conclude that he did not smoke when it
appears that he did. The court also noted that Dr. Fletcher’s
report did not describe Brown’s family history of cumulative
trauma disorder. Brown’s failure to accurately relay his
medical history should not have led the court to impugn Dr.
Fletcher’s methods. “Medical professionals reasonably may
be expected to rely on self‐reported patient histories.” Walker
v. Soo Line R.R. Co., 208 F.3d 581, 586 (7th Cir. 2000) (citing
Cooper v. Carl A. Nelson & Co., 211 F.3d 1008, 1019–21 (7th
Cir. 2000)). Likewise, the district court doubted Brown’s self‐
reporting of his job duties to Dr. Fletcher, in particular his
claims that he worked 12‐16 hours a day. The court also dis‐
counted Dr. Fletcher’s diagnosis of Brown’s shoulder injury
because he was not able to perform an MRI. Finally, the dis‐
trict court accused Dr. Fletcher of misidentifying a track jack
as an iron angle bar, which would be a significant error be‐
cause the two items are quite distinct. Brown argues that the
district court’s findings on these points amount to improper‐
ly quibbling with factual details of the expert’s report. After
all, even experts make mistakes, and imperfections in their
presentations are supposed to be tested by opposing counsel
and put before the jury.
Although the district court did observe factual deficien‐
cies in Dr. Fletcher’s reports, it clearly stated that it was ex‐
cluding the doctor’s testimony because he failed to follow a
reliable method; indeed, he deviated from his own stated
description of a job site analysis and of differential etiology
in general. Dr. Fletcher entirely failed to personally observe
Brown’s working conditions, obtain a written work descrip‐
tion, or perform scientific tests. He also failed to investigate
several possible causes of Brown’s health problems. The fac‐
14 No. 13‐2102
tual deficiencies or discrepancies the district court identified
are the result of Dr. Fletcher’s faulty methods and lack of in‐
vestigation. The district court used the gaps in Dr. Fletcher’s
analysis as illustrative examples of the perils inherent in ap‐
plying subjective experience instead of a proper scientific
approach. The district court did not exceed its role under
Daubert.
Brown’s remaining argument is that the district court
abused its discretion in finding that Dr. Fletcher failed to
apply a reliable method. We have recognized that there is
“nothing controversial” about using differential etiology to
establish legal cause. Schultz v. Akzo Nobel Paints, LLC, 721
F.3d 426, 433 (7th Cir. 2013). However, an expert must do
more than just state that she is applying a respected meth‐
odology; she must follow through with it. In deciding
whether an expert employed a reliable method, the district
court has discretion to consider “‘[w]hether the expert has
adequately accounted for obvious alternative explanations.’”
Id. at 434 (quoting Fed. R. Evid. 702 (2000) Committee Note).
The expert need not exclude all alternatives with certainty,
however. See Gayton v. McCoy, 593 F.3d 610, 619 (7th Cir.
2010) (“[A]n expert need not testify with complete certainty
about the cause of an injury; rather he may testify that one
factor could have been a contributing factor to a given out‐
come.”).
The district court did not abuse its discretion in finding
that Brown’s motorcycle riding and volunteer firefighting
were obvious potential alternative causes for his injuries.
The causal link Dr. Fletcher drew between Brown’s job and
his injuries lay in the presence of vibratory and other types
of equipment that can harm elbows, wrists, and shoulders
No. 13‐2102 15
over time. But the handlebars of a running motorcycle obvi‐
ously vibrate, and firefighters must frequently struggle with
heavy equipment. Brown is correct that under FELA he need
only prove that BNSF’s negligence was a cause, not the sole
cause, of his injury. But without performing an investigation,
Dr. Fletcher could not rule out either activity as the sole
cause of Brown’s condition. And although Brown’s weight,
history of smoking, and family medical history were each
not likely the sole cause of his ailments, these risk factors
combined with either the volunteer firefighting or motorcy‐
cle riding (or both) could have been wholly responsible for
Brown’s condition. We do not know how likely this possibil‐
ity is because Dr. Fletcher did not meaningfully consider it.
Brown insists that Dr. Fletcher did consider these obvi‐
ous alternative causes, but the record shows otherwise. The
doctor disregarded Brown’s motorcycle riding as a factor be‐
cause he assumed Brown worked for longer periods than he
rode. But as BNSF rightly points out, the proper question is
how long he rode the motorcycle as compared to how long
he used vibratory or similarly taxing tools at work. And Dr.
Fletcher could not possibly answer that question in a sys‐
tematic, testable fashion because he did not know the dura‐
tion and frequency of Brown’s motorcycle riding. Even
worse, he did not know the duration or frequency of
Brown’s exposure to vibrations at work. He did not have
enough information to conclude that one value was higher
than the other, or even to doubt that the former overwhelm‐
ingly exceeded the latter. Comparing two unknown, poten‐
tially wide‐ranging variables is not a scientific exercise.
There is no known error rate attached to such a calculation,
nor is such guesswork widely accepted in the scientific
community. See Daubert, 509 U.S. at 593–94. Similarly, Dr.
16 No. 13‐2102
Fletcher did not know what hours Brown worked as a fire‐
fighter, or what his responsibilities were. These were not
merely factual oversights; they are flatly inconsistent with
differential etiology. That method does not establish a cause
for an injury directly, through observation or factual recon‐
struction. Rather, it relies on the process of elimination by
ruling out other alternatives. The failure to rule out obvious
potential alternative causes is therefore fatal to Dr. Fletcher’s
testimony.
Dr. Fletcher’s failure to consider Brown’s motorcycle rid‐
ing and volunteer firefighting distinguishes this case from
Schultz, 721 F.3d 426, which Brown cites in support of his ar‐
gument. In that case, the plaintiff had smoked in the past,
but the expert explicitly stated that exposure to benzene was
known to pose an even greater risk. This meant, in the ex‐
pert’s opinion, that the benzene was a “substantial factor” in
his cancer. Id. at 433–34. Here, Dr. Fletcher did not reliably
weigh the risks posed by Brown’s job‐related exertion as
compared to his other activities. This case is also quite dif‐
ferent from Hardyman, in which the expert “took an exten‐
sive history of Plaintiff’s non‐occupational work activities.”
243 F.3d at 261 (discussing the plaintiff’s bowling, golf, and
other recreational activities).
Not only did Dr. Fletcher fail to investigate and systemat‐
ically rule out two obvious potential causes, but it is not
clear that he ruled out any serious alternative. It is true that
Brown apparently does not have diabetes, which could be a
risk factor. Dr. Fletcher also determined that Brown’s weight
was not likely not a problem, because his BMI was
“[b]orderline.” But even this is difficult to square with his
observation during his deposition that “[t]he higher the BMI
No. 13‐2102 17
the more likely that obesity could be an independent risk
factor” for carpal tunnel syndrome. He did not explain at all
why this positive relationship would exist only for the
“morbidly obese.” Brown’s weight could have made it more
likely that his motorcycle riding or volunteer firefighting
was solely responsible for his condition. Of course, we can
only speculate because Dr. Fletcher did not adequately in‐
vestigate this possibility.
As the district court correctly observed, Dr. Fletcher’s
failure to rule out obvious potential causes was only half the
problem. He also failed to reliably “rule in” Brown’s work‐
place activity as a potential cause of Brown’s condition. Dr.
Fletcher failed to consider that Brown’s job duties changed
considerably as he progressed, beginning in 2006, from
maintenance‐of‐way work to different roles as a foreman,
track inspector, and machine operator. More fundamentally,
Dr. Fletcher noted that his method required him to conduct a
“job site analysis.” This involved “traveling to the literal
worksite with the patient and reviewing his or her job du‐
ties; measuring frequency and force required for various job
tasks; videotaping and photographing job task activities for
further analysis”; identifying “variances in the written job
description as compared to the actual duties performed; us‐
ing scientific measuring tools, such as a Chatillon gauge,
which constitutes an objective measure of force; assessing
push/pull job function factors; and evaluating the level of
force exertion required to perform a job task.” Observing
Brown’s actual working conditions was important in order
to avoid “ruling in” risk factors that were not actually pre‐
sent at his job. The use of videotape and photography to rec‐
ord Dr. Fletcher’s observations would have been crucial to
ensuring that his conclusions could be objectively tested,
18 No. 13‐2102
peer reviewed, and reproduced. The same applies to the use
of scientific tools that provide recorded measurements and
the written job description that could offer an objective com‐
parison with the doctor’s observation. Dr. Fletcher also testi‐
fied that he usually had a professional ergonomist conduct
much of this investigation, but he did not use his services in
this case. All of these steps are designed so that the expert
can rely not on his own subjective experience or bias but on
reliable scientific methods. Dr. Fletcher noted that the above
safeguards were important in his own report, yet he failed to
follow them. This again distinguishes Brown’s case from
Hardyman, where the plaintiff’s ergonomics expert “con‐
ducted an extensive investigation of Plaintiff’s work condi‐
tions.” 243 F.3d at 263. Without a legitimate investigation,
Dr. Fletcher could not reliably ascertain whether Brown’s
work was even a contributing factor to his injury.
In response, Brown contends that precise measurements
of the duration and frequency of his exposure to vibratory
and other potentially damaging tools are unnecessary be‐
cause no precise relationship between the frequency and du‐
ration of exposure and a particular cumulative trauma injury
is known. Indeed, it likely varies from patient to patient. But
because Brown was exposed to multiple sources of contin‐
ued vibration and other trauma, Dr. Fletcher had to have
some reliable basis for opining that Brown’s work activities
played at least a small role in his injury. Data comparing the
relative duration and frequency of exposure could have pro‐
vided that basis; perhaps there were other ways. But Dr.
Fletcher did not pursue any of them. Brown also argues that
BNSF’s experts also did not perform frequency and duration
tests of its equipment either, but pointing out deficiencies in
the defendant’s expert testimony cannot help Brown, who
No. 13‐2102 19
bears the burden of proving negligence and demonstrating
the reliability of his own expert.
Brown claims that Dr. Fletcher was prevented from con‐
ducting the type of job site analysis described in his reports
because BNSF would not cooperate by, for example, allow‐
ing him to test its tools or providing him with a written job
description. But that is a matter that should have been
brought to the district court’s attention during discovery. A
party cannot enter into evidence unhelpful expert testimony
on the grounds that the other side made them do it. If Brown
felt that BNSF was unreasonably constraining his expert’s
investigation, he should have raised that issue and then, if
unsuccessful, pressed it on appeal.
Nor did Dr. Fletcher follow his own advice in diagnosing
Brown’s alleged shoulder injury. In his first report he noted
that a “formal diagnosis” would not be possible without an
MRI. The district court did not abuse its discretion in hold‐
ing Dr. Fletcher to that representation. And if Dr. Fletcher
failed to follow his own stated methods, the court could rea‐
sonably conclude that he had failed to follow any reliable
method. Brown has not shown that Dr. Fletcher’s actual ap‐
proach, as opposed to what he claimed to have done, was
generally accepted in the scientific community. His process
could not produce falsifiable results or survive peer review,
and it is impossible to put an error rate on his guesswork.
See Daubert, 509 U.S. at 593–94.
No one disputes that Brown’s injuries could have been
caused by frequent or long‐lasting vibrations, or that his job
exposed him to a significant amount of vibration over the
years. But if that were sufficient to establish causation, ex‐
pert testimony would be unnecessary in this case. Any lay‐
20 No. 13‐2102
man can understand that connection. Brown wishes to use
Dr. Fletcher’s quarter‐century of experience in the field to
rule out other potential causes. But experience without relia‐
ble, testable methodology is not sufficient. See Gen. Elec. Co.
v. Joiner, 522 U.S. 136, 146 (1997) (“[N]othing in either Daub‐
ert or the Federal Rules of Evidence requires a district court
to admit opinion evidence that is connected to existing data
only by the ipse dixit of the expert.”). Moreover, Dr. Fletch‐
er’s application of his own experience is itself suspect. At his
deposition he was forced to rely on his memory of
“spen[ding] half an hour, 40 minutes … a decade ago” at a
different rail yard to describe the type of maintenance‐of‐
way work that Brown performed. The vagueness of this tes‐
timony is a good illustration of why mere expertise and sub‐
jective understanding are not reliable scientific evidence. The
district court did not abuse its discretion by concluding that
opinions based on this sort of recollection would be no help
to the jury.
III. Conclusion
Because the district court did not abuse its discretion in
excluding Dr. Fletcher’s expert testimony, its grant of sum‐
mary judgment is AFFIRMED.