Wilant v. BNSF Railway Company

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

KEITH A. WILANT,
Plaintiff,

V. C.A. No.: N17C-10-365 CEB
BNSF RAILWAY COMPANY, f/k/a
BURLINGTON NORTHERN AND

SANTA FE RAILWAY COMPANY

Nee Nee Nee” Nee” ee ee eee” ee’ ee’ ee” ee”

Defendant.
Submitted: January 29, 2020
Decided: May 13, 2020
MEMORANDUM OPINION

On Defendant’s Motion to Exclude Expert Testimony
and Motion for Summary Judgment

GRANTED.

A. Dale Bowers, II, Esquire, LAW OFFICE OF A. DALE BOWERS, Wilmington,
Delaware. Shawn A. Ricci, Esquire and Luke T. Pepper, Esquire, BERN
CAPPELLI, LLC, Conshohocken, Pennsylvania. Attorneys for Plaintiff.

Maria R. Granaudo Gesty, Esquire, BURNS WHITE, LLC, Wilmington, Delaware.

S. Camille Reifers, Esquire, BOYLE BRASHER, LLC, Memphis, Tennessee.
Attorneys for Defendant.

BUTLER, J.
INTRODUCTION

Plaintiff Keith Wilant (“Wilant”) worked for BNSF Railway Company
(“BNSF”) from 1969 to 1984.' In 2015, Wilant found out he had contracted bladder
cancer and, in 2017, saw a television advertisement suggesting that bladder cancer
may be connected to inhalation of diesel fumes while working as a railroad worker.”
He brought suit in this Court.

In his complaint, Wilant says that he worked at a BNSF yard in Auburn,
Washington and on tracks between Auburn, and Yakima Washington during his
fifteen years of employment.*? The complaint alleges that while so employed, he
inhaled diesel fumes which, years later, caused him to contract bladder cancer.

Discovery has proceeded through expert witnesses and now BNSF has moved
for summary judgment. BNSF has argued first that the complaint was filed outside
the statute of limitations. BNSF also argues that Plaintiffs expert witness on the
“standard of care,” Dr. Perez, should be excluded, thereby rendering Plaintiffs case
deficient for lack of evidence of a breach of the standard of care.> Finally, BNSF

argues that Plaintiffs “causation expert,” Dr. Harrison, should be excluded because

' Complaint, D.I. 1, at 7 5.

* Hearing Transcript, D.I. 104, at 11.

3 Complaint, D.I. 1, at 7 8.

4 BNSF Motion for Summary Judgment, D.I. 48.

> Motion to exclude testimony of Dr. Hernando Perez, D.I. 50.

i
his testimony fails to meet the Daubert standard for admissibility of expert opinions.°
Because the Court finds that Plaintiff's general causation testimony does not meet
the Daubert standard, that testimony will be excluded. The parties agree that such a
ruling is essentially case dispositive of Plaintiff's complaint and therefore the Court
will grant summary judgment to BNSF.
ANALYSIS

The Daubert Standard

Delaware has adopted the Daubert standard for the admissibility of expert
testimony.’ Under Daubert, an expert may testify to his opinions (and, in cases such
as this, those opinions may form the basis of a prima facie case)® if the testimony

meets the following criteria:

(1) the witness is qualified as an expert by knowledge, skill experience,
training or education;

(2) the evidence is relevant;

(3) the expert's opinion is based upon information reasonably relied
upon by experts in the particular field;

(4) the expert testimony will assist the trier of fact to understand the
evidence or to determine a fact in issue; and

° Motion to exclude testimony of Robert Harrison, D.I. 52.

’ Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993); Nelson v. State, 628
A.2d 69, 74 (Del. 1993) (adopting Daubert standard in Delaware).

8 See, e.g., Hopkins v. Astrazeneca Pharms., LP, 2010 WL 1267219, at *11 (Del.
Super. Mar. 31, 2010) (after striking expert opinion testimony on causation,
plaintiff cannot sustain a prima facie case; summary judgment granted for
defense).

2
(5) the expert testimony will not create unfair prejudice or confuse or
mislead the jury.

The party seeking to introduce expert testimony bears the burden of
establishing its admissibility by a preponderance of the evidence.’

The Delaware Supreme Court has opined that Daubert “imposes a special
obligation upon a trial judge to ensure that any and all scientific testimony . . . is not
only relevant, but reliable”'® and that “the trial judge acts as the “gatekeeper” in
deciding whether an expert’s testimony “has a reliable basis in the knowledge and
experience of [the relevant] discipline.”"!

Here, BNSF has not challenged Dr. Harrison’s professional credentials, which
are substantial.!* Dr. Harrison’s opinions are found in his written report and his
deposition on the causal relationship between diesel exhaust and bladder cancer.!3

BNSF challenges the basis for Dr. Harrison’s opinion that there is a causal

relationship between diesel exhaust and bladder cancer."

? Bowen v. E.I. DuPont de Nemours & Co., 906 A.2d 787, 795 (Del. 2006)
(Internal citations omitted).

'© M.G. Bancorporation v. Le Beau, 737 A.2d 513, 521 (Del. 1999), quoting
Daubert, 509 U.S. at 595.

'! MG. Bancorporation, 737 A.2d at 523.

The Court notes that in Daubert itself, and in many cases coming thereafter, the
issue is rarely the scholarly credentials of the expert. Rather, as the advisory
committee to Fed. R. Evid. 702 put it, “The trial court's gatekeeping function
requires more than simply taking the expert's word for it.”

'3 Plaintiff’s Response to Motion for Summary Judgment, D.I. 86 Ex. 1&2.

'4 Defendant’s Opening Brief to Exclude Expert Testimony of Dr. Robert Harrison,
D.I. 64.

3
The Scientific Basis for Causation Conclusions
Dr. Harrison’s primary reliance is on a report from the International Agency
for Research on Cancer (“IARC”). The IARC is:

[Pjart of the World Health Organization. Its mission is to
coordinate and conduct research on the causes of human cancer,
the mechanisms of carcinogenesis, and to develop scientific
strategies for cancer control. The Agency is involved in both
epidemiological and laboratory research and disseminates

scientific information through publications, meetings, courses,
and fellowships.!°

Monographs published by the IARC “identify environmental factors that are
carcinogenic hazards to humans. These include chemicals, complex mixtures,
occupational exposures, physical agents, biological agents, and lifestyle factors.
National health agencies can use this information as scientific support for their
actions to prevent exposure to potential carcinogens.” !°
IARC Monograph No. 105 deals specifically with diesel exhaust and its

carcinogenicity.'?_ Dr. Harrison referred to Monograph No. 105 as the “best

summary” of his study on the subject.'®

'S Press Release, International Agency for Research on Cancer, (Jun. 12, 2012)
https://www.iarc.fr/pressrelease/iarc-diesel-engine-exhaust-carcinogenic/.

'6 TARC Monographs, General Information, https://monographs.iarc.fr/home/iarc-
monographs-general-information/.

7 See generally International Agency for Research on Cancer,

DIESEL AND GASOLINE ENGINE EXHAUSTS AND SOME NITROARENES, Vol 105
(2012) available at https://publications.iarc.fr/129.

'8 Dr. Harrison’s Deposition, D.I. 86, Ex. 3 at 44.

4
Monograph No. 105 is quite clear when clarity is certain: that diesel fumes
cause lung cancer. It says, “Diesel engine exhaust causes cancer of the lung.”!? This
conclusion is supported by many scientific studies demonstrating the positive
epidemiological relationship between diesel exhaust and lung cancer.

But when Monograph No. 105 turns to the question of diesel exhaust and
bladder cancer, its authors were less certain. Instead of a clear statement of
causation, Monograph No. 105 concludes that “Overall, the epidemiological studies
provide some evidence of a positive association between potential exposure to diesel
engine exhaust and the risk of urinary bladder cancer.””°

Monograph No. 105 is a catalog of many studies on the subject of diesel fumes
and its harmful effects. The studies cited all report a “confidence interval” of at least
95%. While more might be said of confidence intervals, for our purposes it is enough
to say that a confidence interval provides “a range (interval) within which the risk
likely would fall ifthe study were repeated numerous times.””! So a 95% confidence

interval indicates that the range of results achieved in the study would be achieved

95% of the time when the study is replicated from the same population.?? And

'9 TARC, supra note 17, at 467.

20 Td. at 476 (emphasis added).

*1 See Federal Judicial Center, FEDERAL REFERENCE MANUAL ON
SCIENTIFIC EVIDENCE 573 (3d ed. 2011).

22 See Raphaél Porcher, PhD, Reporting Results of Orthopaedic Research:
Confidence Intervals and p Values, 467 Clin. Orthop. Relat. Res. 2737 (2009)
(defining confidence intervals as it relates to scientific studies).

5
indeed, a 95% confidence interval appears to be the standard used by
epidemiologists to determine the validity — or confidence level - in the study.”

Monograph No. 105 also recorded the “relative risk” from each of the studies
reported. Relative risk measures the strength of the association between the agent
and the effect under examination.”4 For example, bladder cancer is quite common
in the general population and it therefore is not surprising that some railroad workers
have contracted it, as have others in many occupations.”> The job of relative risk is
to determine whether diesel fume inhalants contract bladder cancer at a greater or
lesser rate than non-inhalants.

A relative risk ratio of 1.0 means the risk of the disease is no greater for those
exposed to the agent (in this case diesel exhaust) than those not exposed.”° On the

other hand, for example, smoking studies have shown that smokers are ten times

23 FEDERAL REFERENCE MANUAL at 573. See also Tumlinson v. Advanced Micro
Devices, Inc. 2013 WL 7084888, at *6 (Del. Super. Oct. 15, 2013), aff'd, 81 A.3d
1264 (Del. 2013) (“The generally accepted significance level or confidence level in
epidemiological studies is 95%, meaning that if the study is repeated many times,
the confidence interval indicates the range of relative risk values that would result
95% of the time.”)

4 TARC, supra note 17, at 16.

25 National Cancer Institute, Cancer Stat Facts: Bladder Cancer, (last visited April
13, 2020) https://seer.cancer.gov/statfacts/html/urinb.html.

*6 Federal Judicial Center, FEDERAL REFERENCE MANUAL ON SCIENTIFIC
EVIDENCE 349 (2d ed. 2000).
more likely (a risk ratio of 10.0) than non-smokers to develop lung cancer.?” A
number of courts have held that a plaintiff must demonstrate a risk ratio of at least
2.0 to demonstrate a preponderance of evidence that what is sought to be proved is
more likely than not true.”8

The issue of whether the relative risk must measure greater than 2.0 is a
controversial one. In a number of jurisdictions, a risk ratio of below 2.0 is an
insufficient demonstration of risk to satisfy a “more probable than not” requirement
for expert testimony under state law.”? As one commentary put it: some courts that
said RR>2 (Relative Risk greater than 2) is “required” meant that there must be
epidemiological evidence showing RR>2.°° Others mean that ifthere is a body of

epidemiological data, it must show RR>2.*! Still others mean that, if

27 Center for Disease Control, Smoking and Cancer, (last visited April 14, 2020)
https://www.cdc.gov/tobacco/data_statistics/sgr/50th-anniversary/pdfs/wynk-
cancer.pdf.

28 DeLuca v. Merrell Dow Pharms., Inc., 911 F.2d 941, 958 — 59 (3d Cir.1990) (a
RR of 2.0 supports the burden of proof as it relates to causation) accord Daubert v.
Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1320 (9th Cir. 1995) and In re
W.R. Grace & Co., 355 B.R. 462, 483 (Bankr. D. Del. 2006).

29 See. e.g., Daubert, 43 F.3d at 1321 (A relative risk less than two does not establish
legal causation).

3° See Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 719 — 30 (Tex. 1997)
and Oxendine v. Merrell Dow Pharm. Inc., 506 A.2d 1100 (D.C. 1986)(a relative
risk greater than two indicates a strong inference of causation). Accord, DePyper v.
Navarro, 1995 WL 788828, at *34 (Mich. Cir. Ct. Nov. 27, 1995), affd, 1998 WL
1988927 (Mich. Ct. App. Nov. 6, 1998).

3! In re Breast Implant Litig., 11 F. Supp. 2d 1217, 1228 (D. Colo. 1998) (“A lack
of epidemiology should not end the inquiry, but rather begin the inquiry into what
other types of evidence a plaintiff can present to satisfy the burden of proof.”)

7
epidemiological studies are the only causation evidence available, they must show
RR>2.** Finally, some courts have stated that RR<2 disproves legal causation.**

It does not appear that the Delaware Supreme Court has weighed in on the
“risk ratio less than two” controversy. In the absence of such a ruling, the Court is
not prepared to say that a relative risk of less than 2 is per se insufficient to admit
expert testimony. While a relative risk of less than two connotes a risk less than the
“more likely than not” standard of proof of causation in tort law generally, there may
be other evidence demonstrating causation in addition to a relative risk greater than
1 but less than 2.*4

Educated by the discussion above, we return to Dr. Harrison’s expert report
and Monograph No. 105. Dr. Harrison does not define a risk ratio applicable to

diesel exhaust, railroad workers and bladder cancer. Indeed, when asked whether

32Cook v. United States, 545 F. Supp. 306, 315 (N.D. Cal. 1982) (A relative risk less
than 2 failed to persuade the court that the results were more probable than not).

3Daubert, 43 F.3d at 1321 (Epidemiological data will at minimum have to exceed
two to show causation). See also Lofgren v. Motorola, 1998 WL 299925, at *14
(Ariz. Super. Ct. Jun. 1, 1998) (relative risk less than 2 tends to disprove causation)
and see Russellyn S. Carruth & Bernard D. Goldstein, Relative Risk Greater Than
Two in Proof of Causation in Toxic Tort Litigation, 41 Jurimetrics J. 195, 203-04
(2001) (discussing the differences of opinion surrounding the requirement of
epidemiological evidence showing RR>2 and its meaning as it relates to causation).
34 See generally Oxendine, 506 A.2d 1100 (D.C. 1986) (epidemiology study with
risk ratio between 1.3 and 1.8 with other supporting data sufficient to get to jury on
issue of causation). See also Michael D. Green, Expert Witnesses and Sufficiency of
Evidence in Toxic Substances Litigation: The Legacy of Agent Orange and
Bendectin Litigation, 86 Nw. U. L. Rev. 643, 691 (1992) (“In the absence of a
relative risk less than two would be inadequate to support a plaintiff's verdict”).

8
the relative risk was greater than 2.0, he testified that relative risk was a “legal
construct, not a medical one.”%° While that may be a facile response in a deposition
with opposing counsel, it begs the question before the Court and is not, as they say,
helpful.

Monograph No. 105 analyzed studies from across multiple occupations, with
varied exposures, varied densities and over varied periods. BNSF argues that the
only study specific to railroad workers — the Schenker study — contained in
Monograph No. 105 found that, of 2519 railroad workers with a least 10 years’
experience, the risk ratio for bladder cancer was .76 — actually lower than the general
population.*° Plaintiff does not direct the Court to any contravening study in the
Monograph but rather affirms that “Dr. Harrison also relied on the Schenker study
papers written by Dr. Paulo Boffetta.”>”

Even if we expand our field of vision from railroad workers inhaling diesel

fumes to other occupations, the Monograph does not provide additional help.

Monograph No. 105 refers specifically to three studies concerning diesel fumes and

35 Harrison Deposition, supra note 18, at 52.

36 Defendant’s Opening Brief, D.I. 64 at 10; Dr. Harrison’s Deposition, D.I. 86 Ex.
3, at 77 — 78.

37 Plaintiff's Brief, D.I. 86 at 14. See also M.D. Schenker, et. al., Diesel exposure
and mortality among railway workers: results of a pilot study, 41 Br. J. Ind. Med.
320 — 327 (1987) (evaluating the association of diesel exhaust and cause specific
mortality).
bladder cancer. A study by Boffetta & Silverman analyzed bladder cancer data for
numerous occupations that had been exposed to diesel exhaust and found an elevated
risk ratio of 1.13 to 1.37.38 That study did not, however, include a meta-analysis of
railroad workers as their exposure was too varied to be useful as a group.*” A meta-
analysis by Manju found a pooled risk among motor vehicle and railroad workers of
1.08.° Finally a meta-analysis by Ruelen, et. al. found “small but significant”
increases in relative risk of bladder cancer (generally under 1.3) by exposure to
diesel fumes among nine occupational workers, none of them railroad workers.*!
The most that can be said of these studies is what was said by the IARC: there
appears to be a positive association, but IARC is unwilling — because the science
does not support it — to say that diesel fumes cause bladder cancer. Thus, Dr.

Harrison’s conclusions are not borne out by the evidence he cites in support.

38 Paolo Boffetta & Debra T. Silverman, A Meta-Analysis of Bladder Cancer and
Diesel Exhaust Exposure, 12 Epidemiology 125, 128 (2001)
https://journals.lww.com/epidem/Fulltext/2001/01000/A_Meta_Analysis of Bladd
er Cancer_and_ Diesel.21.aspx

39 Td. at 125-130.

“© Manju L, George Sara Preethi, Mathew Aleyamma, Urinary bladder Cancer
Risk Among Motor Vehicle Drivers: A Meta-Analysis of the Evidence, 1977-2008,
10 Asian Pac J Cancer Prev. 287, 287-294.

journal. waocp.org/?sid=Entrez:PubMed&id=pmid:19537898&key=2009.10.2.287
*! Raoul C. Reulen, Eliane Kellen, Frank Buntinx et al. A Meta-Analysis on the
Association Between Bladder Cancer and Occupation Scand. J Urol. Nephrol.
Suppl. 64—78 (2008).

10
The Dose/Response Problem

While BNSF criticizes Plaintiff for his failure to propound a viable
dose/response relationship to exposure and consequent disease, Plaintiff responds
that BNSF did not keep dosage records. Plaintiff then directs us to Cutlip v. Norfolk
S. Corp., where the judge wrote “only rarely are humans exposed to chemicals in a
manner that permits a quantitative determination of adverse outcomes.” This
observation may be true, but the lack of any reliable dosage information does nothing
to assure the Court that the expert’s conclusion is based on scientific principles,
regardless of whose “fault” it is that no such records exist.”

Pressed on the lack of dosage data in the literature, Dr. Harrison suggested
that a proposed “threshold limit value” based on the known risk for lung cancer was

“a reasonable place to start” in assigning one for bladder cancer.** Exactly why this

” Plaintiff's Brief, D.I. 86, at 10 quoting Cutlip v. Norfolk S. Corp., 2003 WL
1861015, at *8 (Ohio Ct. App. Apr. 11, 2003) quoting Westberry v. Gislaved Gummi
AB 178 F.3d 257, 264 (4th Cir. 1999).

3 We pause for a moment here to recognize that Plaintiff's specific dosage of diesel
fume inhalation is not the problem for a general causation expert. That would be
germane to a specific diagnosis of Plaintiff's condition and appropriately a matter
for examination of the testimony of Dr. Perez, Plaintiff's specific causation expert.
The dosage problem here is not Plaintiff's specific dosage but rather the general
causation expert’s opinion that diesel exhaust causes bladder cancer. The lack of
any dosage specificity that might cause or even elevate the risk of bladder cancer
generally further weakens the reliability of this testimony. See generally,
McGlaughlin v. BNSF Railway, 2020 WL 641729, at *6 — 7 (D. Neb. Feb. 11, 2020)
See infra note 45.

“4 Plaintiff's Brief, D.I. 86, at 18.

11
is a reasonable place to start is not explained, and the Court does not presume things
it knows nothing about. Perhaps a “threshold limit value” to one organ could be
toxic to another organ, or completely benign. The Court is certainly not in a position
to know without evidence, and none has been either presented or argued.

So the dosage problem here is quite acute: we do not know how much diesel
exhaust the Plaintiff inhaled while employed at BNSF, but even if we did, we do not
know how much diesel exhaust one would need to inhale to increase the risk of
bladder cancer. These difficulties further amplify the Court’s concerns that Dr.
Harrison’s opinions are not well grounded in science.

Differential Diagnosis

Differential diagnosis is the process of eliminating from consideration other
known causes of a disease to arrive at the most likely cause.* Where the disease is
rare, and the causes are few, differential diagnosis is straightforward. But where the
disease has a “high background rate” in the general population, the expert must
employ a “definitive scientific process” to differentiate among the many potential

causes.*°

45 See In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 758-59 (3d Cir. 1994)
(discussing the technique of differential diagnosis to rule out other known causes of

a disease).

“6 See Scaife v. Astrazeneca LP 2009 WL 1610575, at *16 (Del. Super. Jun. 9, 2009)
citing Minner v. American Mortg. & Guar. Co., 791 A.2d 826, 854 (Del. Super.
2000) (“the differential diagnosis process requires the expert employ a definitive

12
Bladder cancer is a disease with a high background rate. The American
Cancer Society estimates about 81,400 new cases this year.‘” Several of the known
causes are present in Plaintiff. Dr. Harrison explained that while tobacco smoking
is a known risk factor for bladder cancer, he discounted Plaintiff's history of tobacco
smoking because Plaintiff smoked too little and quit too long ago for tobacco use to
be a meaningful risk.®

Another known risk factor for developing bladder cancer is alcohol
consumption.” Here, Plaintiff did not consume modestly and quit long ago. Rather,
he consumed at least a “six pack a day” for over forty years.*’ At his deposition, Dr.
Harrison conceded that Plaintiff's alcohol use was a contributing factor in his
bladder cancer. But if alcohol use was a contributing factor in Plaintiffs contracting
bladder cancer, what does that do to Dr. Harrison’s differential diagnosis? The
expert actually found a differential diagnosis. A differential diagnosis analysis is

only useful to the Plaintiff if it excludes other causes.”!

scientific process to rule in and rule out the many potential causes of the disease
before reaching a diagnosis.”’)

47 National Cancer Institute, Cancer Stat Facts: Bladder Cancer, (last visited Apr.
13, 2020) https://seer.cancer.gov/statfacts/html/urinb.html.

48 Dr. Harrison’s Deposition, D.I. 86 Ex. 3, at 26 — 27.

Td. at 67.

°° Id. at 67 — 70.

>! Like the dose/response problem noted in footnote 35 and surrounding text, the
Court understands fully that causation in a FELA case may be predicated on an
employer’s negligence “however slight.” Rogers v. Missouri Pacific R.R. Co., 352
U.S. 500, 567 (1957). But this lower standard of causation in FELA cases does not

13
A Review of Decisional Law

Despite numerous attempts to litigate the harmful effects of diesel fumes, the
courts have been rather stingy in permitting the evidence as against a Daubert
challenge. Seaman vy. Seacor Marine LLC,” was a case in which a sea captain
complained that his bladder cancer was caused by chemicals in diesel exhaust
inhaled while aboard the ship. Plaintiff's expert testimony on causation was
excluded, the court ruling that 1) studies on the toxicity of the components generally
were not relevant to the causation of bladder cancer and 2) the expert had no
information concerning plaintiffs level of exposure to the diesel fumes.~

In Knight v. Kirby Inland Marine Inc.,** the plaintiffs general causation
expert testimony that diesel exhaust causes bladder cancer was excluded. In
affirming the trial court, the Fifth Circuit said the trial court could “reasonably
conclude that the analytical gap between the studies on which he relied, and his

conclusions was simply too great and that his opinions were thus unreliable.”

lower the Daubert standard for admissibility of evidence of causation; the two issues
are distinctly different and confusing them is another trap for the unwary. See, e.g.,
Claar v. Burlington R. Co. 29 F.3d 499, 503 (9th Cir. 1984); In re Paoli Railroad
Yard PCB Litigation, 2000 WL 274262, at *2 (E.D. Pa. Mar. 7, 2000).

>2 564 F. Supp.2d 598, 603, (E.D. La. 2008), aff'd, 326 Fed. Appx. 721 (5th Cir.
Apr. 20, 2009).

°3 Td. at 602.

4 482 F.3d 347 (5th Cir. 2007).

°5 Id. at 353.

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McLaughlin v. BNSF Railway Company,*© was a case involving a railroad
worker who contracted lung cancer and sued under FELA, claiming his lung cancer
was caused by diesel exhaust at his worksite. An expert was prepared to testify,
consistent with the IARC Monograph No. 105 discussed above, that diesel exhaust
causes lung cancer. Even here, however, the court rejected the expert’s testimony,

saying:

[I]n order to pass muster under Daubert, [expert witness] Wilkenfeld
must be able to say more than [Plaintiff] was exposed to diesel exhaust;
some unknown amount of diesel exhaust can cause cancer; therefore
exposure to diesel exhaust caused [Plaintiffs lung cancer]. This is just
the type of opinion that is connected to the data only by the ipse dixit of
the expert and need not be accepted by the Court. And even under
FELA, where diesel exhaust need not be a significant cause, but may
merely play any part in [Plaintiff's] development of lung cancer, [the
expert] has not reliably ruled in [Plaintiffs] exposure.>’

In Phlypo v BNSF Railway Co.°* the trial judge excluded expert testimony
that benzene in diesel exhaust causes non-Hodgkin’s lymphoma. The expert, relying
on an IARC study, proffered testimony on an association between benzene and non-
Hodgkin’s lymphoma. Much as the Court does here, the Texas court ruled that
association and causation are different conclusions. While an opinion on cause and

effect may ultimately be proven in science, expert testimony in a courtroom cannot

6 2020 WL 641729, at *6 — 7 (D. Neb. Feb. 11, 2020), appeal filed, No. 20-1494
(8th Cir. Mar. 10, 2020).

°7 Id. at *7 (internal citations omitted).

8 2019 WL 2297293 (N.D. Texas, Mar. 27, 2019).

15
be used to prove what science has not. “In sum, the law cannot wait for future
scientific investigation and research. We must resolve cases in our courts on the basis

of scientific knowledge that is currently available.’”°?

CONCLUSION
On the basis of the foregoing, the motion of BNSF to exclude the testimony
of Plaintiff's general causation expert, Dr. Harrison is GRANTED. Plaintiff is
thereby without a basis for the jury to find that Defendant caused Plaintiff's injury
and Defendant’s motion for summary judgment is therefore GRANTED.

IT IS SO ORDERED.

GLEE FBuitler_S

°? Td. at *8 citing Moore v. Ashland Chemical Inc., 151 F.3d 269, 276 (5th Cir.
1998). Put another way, “[t]he courtroom is not the place for scientific guesswork

even of the inspired sort. Law lags science; it does not lead it.” Rosen v. Ciba-
Geigy Corp., 78 F.3d 316, 319 (7th Cir. 1996).

16