Opinion
Case No. 3:18-CV-02826-JGC
08-25-2021
Aleta L. KOVACH, Executrix of the Estate of David Kovach, Plaintiff v. WHEELING AND LAKE ERIE RAILWAY COMPANY, Defendant.
Andrew S. Baker, Columbus, OH, D. Aaron Rihn, Robert Peirce & Associates, Pittsburgh, PA, Robert F. Daley, Law Office of Robert Peirce, Pittsburgh, PA for Plaintiff. Quinn M. Schmiege, Gallagher Sharp - Columbus, Columbus, OH, Robert R. Terbrack , Jr., McNeal, Schick, Archibald & Biro, Cleveland, OH, Sheila A. McKeon, Gallagher Sharp – Toledo, Toledo, OH, Thomas E. Dover, Gallagher Sharp – Cleveland, Cleveland, OH for Defendant.
Andrew S. Baker, Columbus, OH, D. Aaron Rihn, Robert Peirce & Associates, Pittsburgh, PA, Robert F. Daley, Law Office of Robert Peirce, Pittsburgh, PA for Plaintiff.
Quinn M. Schmiege, Gallagher Sharp - Columbus, Columbus, OH, Robert R. Terbrack , Jr., McNeal, Schick, Archibald & Biro, Cleveland, OH, Sheila A. McKeon, Gallagher Sharp – Toledo, Toledo, OH, Thomas E. Dover, Gallagher Sharp – Cleveland, Cleveland, OH for Defendant.
ORDER
James G. Carr, Senior United States District Judge
This is an action arising under the Federal Employer's Liability Act (FELA) for damages related to the death of David Kovach, a former employee of Wheeling and Lake Erie Railway Company (Wheeling).
Mr. Kovach was an employee of Wheeling for approximately twenty-five years. Shortly after he retired, Mr. Kovach was diagnosed with diffuse large B-cell lymphoma of the central nervous system, a type of non-Hodgkin's lymphoma.
His wife, the plaintiff, brings this action, alleging that Wheeling negligently exposed Mr. Kovach to toxic substances at work, causing him to develop cancer and ultimately, causing his death.
Pending is defendant's motion under Daubert v. Merrell Dow Pharms., Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), which seeks to exclude the testimony of Dr. Arthur Frank (Doc. 23), and defendant's motion for summary judgment (Doc. 24). For the reasons described below, I deny both motions.
Background
Mr. David Kovach worked at Wheeling from 1989 until he retired in 2014. (Doc. 22-1, pgID 84). Over the course of his approximately twenty-five years at Wheeling, Mr. Kovach filled the roles of foreman, general foreman, and truck driver. (Id. , pgID 78). Prior to his work for Wheeling, Mr. Kovach worked for another railroad, Norfolk & Western, which later became Norfolk Southern, for approximately fifteen years. (Id. , pgID 75, pgID 84).
Mrs. Kovach testified that while at Wheeling, Mr. Kovach was responsible for inspecting the railroad tracks and assisting with any repairs that needed to be completed. (Id. , pgID 78). One way in which he did this was by working on derailments, which required him to rebuild portions of tracks. (Id. ) He also served as a crane operator and was involved with the application of weed killer to the railroad tracks, although the precise nature of his involvement is unclear. (Id. , pgID 79-80; Doc. 22-3, pgID 196).
In completing these tasks, Mrs. Kovach testified that Mr. Kovach was exposed to a variety of substances, including diesel fuel and exhaust, kerosene, hydraulic fluid, asbestos, and industrial solvents. (Doc. 22-1, pgID 80). She testified that Mr. Kovach came into direct contact with diesel fuel on a daily basis, as he was responsible for filling trucks and the crane with diesel. (Id. , pgID 81-82). She further explained that Mr. Kovach was exposed to kerosene because railroad employees used it to soak railroad ties. (Id. , pgID 83).
Mr. Kovach began experiencing symptoms of his cancer in February 2016. (Id. , pgID 85). His doctors conducted a biopsy and diagnosed him with non-Hodgkin's lymphoma shortly thereafter. (Id. ). He passed away on May 29, 2016. (Id. , pgID 86).
Standard of Review
1. Expert Testimony
Federal Rule of Evidence 702 governs expert testimony. It provides:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
As the Supreme Court explained in Daubert, supra , 509 U.S. at 590-91, 113 S.Ct. 2786, an expert's testimony must contain "more than subjective belief or unsupported speculation," it must be reliable, and it must be relevant.
The proponent of the evidence has the burden of establishing the pertinent admissibility requirements by a preponderance of the evidence. See id. at 592 n.10, 113 S.Ct. 2786.
Still, "rejection of expert testimony is the exception, rather than the rule." In re Scrap Metal Antitrust Litig. , 527 F.3d 517, 530 (6th Cir. 2008). "Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Daubert, supra , 509 U.S. at 596, 113 S.Ct. 2786.
2. Summary Judgment
Summary judgment is appropriate under Federal Rule of Civil Procedure 56 where the opposing party fails to show the existence of an essential element for which that party bears the burden of proof. Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
The movant initially must show the absence of a genuine issue of material fact. Id. at 323, 106 S.Ct. 2548. Once the movant carries its burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Rule 56 "requires the nonmoving party to go beyond the [unverified] pleadings" and submit admissible evidence supporting its position. Celotex, supra , 477 U.S. at 324, 106 S.Ct. 2548.
In a FELA action, "the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought." Rogers v. Missouri Pac. R.R. Co. , 352 U.S. 500, 506, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957). If that test is met, I am "bound to find that a case for the jury is made out whether or not the evidence allows the jury a choice of other probabilities." Id. at 507, 77 S.Ct. 443.
While the standard for causation in a FELA action is lower than in a typical negligence suit, the standard for admissibility of expert testimony under Federal Rule of Evidence 702 is unchanged. Causation and admissibility are separate inquiries and do not affect each other. Taylor v. Consol. Rail Corp. , 114 F.3d 1189 (6th Cir. 1997).
Discussion
1. Daubert Motion
Defendant seeks to exclude the testimony of plaintiff's causation expert, Dr. Arthur Frank. Dr. Frank specializes and is board-certified in occupational and environmental medicine. (Doc. 23-3, pgID 388). He is a Professor of Public Health, Professor of Medicine, and Professor of Civil, Architectural and Environmental Engineering at Drexel University. (Doc. 27-1, pgID 574). He has written numerous articles about exposure to harmful substances at the workplace, as well as articles about cancer and carcinogens. (Id. , pgID 592-98).
In his expert report, Dr. Frank opines that Mr. Kovach's "exposure to benzene through diesel fuel and diesel exhaust as well as exposures to pesticides and herbicides [...] were a significant contributing cause to his developing his Non-Hodgkin's Lymphoma." (Doc. 23-2, pgID 372).
While defendant does not challenge Dr. Frank's qualifications or the relevance of his opinions, it challenges the reliability of his methods and the factual basis for the opinions. Defendant argues that Dr. Frank's opinions regarding both general and specific causation should be excluded.
Defendant specifically takes issue with Dr. Frank's reliance on information in a letter from plaintiff's counsel regarding Mr. Kovach's exposure to toxic substances in the workplace. Defendant also questions the research that Dr. Frank relies upon for his opinion that exposure to diesel fuel and diesel exhaust causes non-Hodgkin's lymphoma.
A. General Causation
In a toxic tort case, the plaintiff must prove both general and specific causation. Sunnycalb v. CSX Transp., Inc. , No. 1:10-CV-192-HJW, 2012 WL 3308992, at *3 (S.D. Ohio) (citing Pluck v. BP Oil Pipeline Co. , 640 F.3d 671, 676-77 (6th Cir. 2011) ). General causation means that "the chemical exposure could cause a particular type of injury" in general, not taking into account the details of the plaintiff's injury specifically. Id.
Defendant argues that Dr. Frank has failed to establish general causation because he has not pointed to any "valid scientifically established authority" showing that the substances in question (diesel fuel, diesel exhaust, kerosene, herbicides, and pesticides) can cause diffuse large B-cell lymphoma of the central nervous system. (Doc. 23-1, pgID 350). This is because, defendant argues, Dr. Frank cites studies that establish only an association between benzene and non-Hodgkin's lymphoma, not causation. Additionally, the studies focus on benzene and not benzene in diesel or kerosene.
First, Dr. Frank's citation to studies showing an association between benzene and non-Hodgkin's lymphoma does not render his opinions unreliable. Other courts in this Circuit have held that an expert can rely on associational studies and need not point to literature definitively establishing a cause-and-effect relationship. See, e.g. , Dickson v. Nat'l Maint. & Repair of Kentucky, Inc. , No. 5:08-CV-00008, 2011 WL 12538613, at *7 (W.D. Ky.) (allowing expert testimony that relied on studies showing statistically significant associations between benzene exposure and multiple myeloma ); Hamilton v. Breg, Inc. , No. 2:09-CV-146, 2011 WL 833614, at *3 (S.D. Ohio) (rejecting defendant's argument that "because the scientific studies [...] do not include phrases such as ‘does cause’ or ‘definitely causes’ or ‘conclusively causes’ Plaintiff's experts cannot draw conclusions of causation from them").
Defendant relies heavily on a Northern District of Texas case similar to this one, in which the Court excluded expert testimony regarding a railroad employee's exposure to benzene and subsequent diagnosis of non-Hodgkin's lymphoma. See Phlypo v. BNSF Ry. Co. , No. 4:17-CV-566-BJ, 2019 WL 2297293, at *1 (N.D. Tex.). That Court questioned the expert's use of a 2012 study that found an association between benzene and non-Hodgkin's lymphoma because it did not find causation.
However, this study was one consideration among a host of others that led the Court to exclude the expert's testimony. Other deficiencies that the Court relied upon in excluding the testimony included the expert's failure to review medical records, failure to review fact depositions, and failure to review available exposure data from the defendant railroad. None of those factors apply in this case. See Laski v. Bellwood , 215 F.3d 1326 (6th Cir. 2000) ("the inquiry as to the appropriateness of a given expert's testimony is fact specific").
Defendant's next argument regarding general causation is that since the studies Dr. Frank cites relate to benzene exposure and not diesel or kerosene exposure, they cannot reliably support his opinion that Mr. Kovach's exposure to diesel fuel, diesel exhaust, and kerosene contributed to his cancer. This argument is unpersuasive.
Dr. Frank testified that benzene is a component of diesel and kerosene. (Doc. 23-3, pgID 395-96, 408). While defendant takes issue with some aspects of Dr. Frank's testimony regarding this issue, it does not dispute that either diesel or kerosene contains benzene. (See Doc. 23-1, pgID 352-53).
In a similar case dealing with workplace exposure to benzene, the defendant sought to exclude expert testimony for the same reason: because the experts referred to benzene and diesel interchangeably or focused entirely on benzene. See Dickson, supra , 2011 WL 12538613, at *6. The Court found that the experts’ opinions should not be excluded on that basis because "[b]enzene may be considered a causative agent despite only being a component of the alleged harm." Id.
I agree with this rationale. I see no reason to restrict plaintiff's expert to a discussion of studies related specifically to diesel or kerosene when benzene is a component of both substances. Defendant is certainly free to challenge these studies and their applicability to Mr. Kovach's situation on cross-examination. However, I decline to find that Dr. Frank's testimony is inadmissible because the studies he cites focus on a specific component of the relevant substances.
B. Specific Causation
In addition to establishing general causation, a plaintiff in a toxic tort case must establish specific causation. This means that the plaintiff's exposure to toxic substances did, in fact, cause his or her injury. Sunnycalb, supra , 2012 WL 3308992, at *3. In this case, plaintiff must establish that Mr. Kovach's exposure to toxic substances at the railroad caused his non-Hodgkin's lymphoma. i. Evidence of Exposure
As discussed above, the standard for causation under FELA is "whether an employer's actions played any part at all in causing the injury." Hardyman v. Norfolk & W. Ry. Co. , 243 F.3d 255, 259 (6th Cir. 2001).
Defendant's chief complaint regarding Dr. Frank's specific causation opinion is that he based his expert report on a letter from plaintiff's counsel. That letter outlined the types of work assignments that Mr. Kovach completed at Wheeling, as well as the chemicals to which the railroad exposed him. (Doc. 23-4, pgID 461).
Defendant argues that this letter alone is insufficient to establish that Mr. Kovach was exposed to toxic chemicals while working for Wheeling. That may very well be the case. However, defendant ignores the other support in the record, namely, Mrs. Kovach's deposition testimony.
While Mr. Kovach was obviously unable to testify about his own responsibilities at the railroad and corresponding exposures, Mrs. Kovach testified about these issues. She testified that Mr. Kovach came into contact with diesel fuel in filling up trucks and cranes, kerosene from soaked railroad ties, and chemicals from weed killers. (Doc. 22-1, pgID 80-83).
Importantly, those are the same exposures listed in the letter from plaintiff's counsel upon which Dr. Frank based his initial opinion. (Doc. 23-4) (stating that Mr. Kovach was exposed to "diesel fuel and/or exhaust from track equipment," "kerosene mixed with sawdust and coated asbestos rope that was lit in order to heat up the track rails," and "herbicides/pesticides that were sprayed [...] for weed control"). Therefore, defendant's argument that "there is no Rule 56 evidence of exposure to support Dr. Frank's causation opinion" is not well taken. (Doc. 28, pgID 612) (emphasis omitted).
Defendant could argue that because Dr. Frank completed his expert report before Mrs. Kovach testified to her husband's exposure, I cannot consider that testimony in evaluating the reliability of Dr. Frank's opinion. However, there are several problems with this argument.
First, Mrs. Kovach had testified by the time that Dr. Frank gave his deposition. Dr. Frank reviewed her testimony and declined to change any aspect of his report in light of it. (Doc. 23-3, pgID 399). In fact, Dr. Frank noted that Mrs. Kovach's testimony confirmed the exposures upon which he initially based his opinion. (Doc. 23-3, pgID 406-07).
Furthermore, the Sixth Circuit has held that an expert can rely on assumed facts in forming his or her opinion, so long as there is "some support for those assumptions in the record." McLean v. 988011 Ontario, Ltd. , 224 F.3d 797, 801 (6th Cir. 2000).
When Dr. Frank authored his report, the facts upon which he relied could fairly be characterized as assumptions because he did not have independent confirmation of them. No depositions had been taken at that point in the case, and Dr. Frank admits that he relied solely on the letter from plaintiff's counsel in determining Mr. Kovach's exposure to toxic substances for purposes of his report.
But those assumptions became facts in the record once Mrs. Kovach confirmed them in her deposition. I see no reason why the timing of Mrs. Kovach's deposition should render Dr. Frank's opinion unreliable, especially where Dr. Frank stated that, after reviewing Mrs. Kovach's testimony, he stood by the conclusions in his initial expert report.
Accordingly, I disagree with defendant's position that there was no Rule 56 evidence in the record to support Dr. Frank's opinions. ii. Quantification of Exposure
Relatedly, defendant argues that Dr. Frank's opinion is unreliable because he does not know "the specific dose, duration or intensity of any exposure that Mr. Kovach allegedly had while he worked for the railroad." (Doc. 23-1, pgID 350).
The Sixth Circuit has held that a plaintiff's expert does not need to know the specific dose or threshold level of exposure for his or her opinion to be reliable. Hardyman, supra , 243 F.3d at 265. In Hardyman , another FELA case, the plaintiff's expert relied on a differential diagnosis, and the Court found that this was a suitable alternate method for establishing causation. Id. at 260 ; see also Best v. Lowe's Home Centers, Inc. , 563 F.3d 171, 178 (6th Cir. 2009) (no need to quantify level of exposure where expert completed differential diagnosis); Quillen v. Safety-Kleen Sys., Inc. , No. CV 07-67-EBA, 2009 WL 10676636, at *3 (E.D. Ky.) (quantification of exposure not sine qua non of admissibility). The Hardyman court also recognized that requiring specific dose or threshold data is impractical in certain circumstances. Hardyman, supra , 243 F.3d at 265.
A differential diagnosis is "a standard scientific technique of identifying the cause of a medical problem by eliminating the likely causes until the most probable one is isolated." Hardyman, supra , 243 F.3d at 260.
Here, there is no dispute that Dr. Frank does not know Mr. Kovach's level of exposure to the toxic substances at issue. However, it is also uncontested that the defendant railroad did not keep track of such information. Plaintiff's exposure expert, Dr. Robert Vance, testified that "[a]bsent exposure levels, exposure monitoring by the railroad, it's not possible to say what the levels of exposure were." (Doc. 22-4, pgID 250).
Additionally, it is no longer possible for Mr. Kovach to undergo any tests that would provide information about his exposure to the chemicals in question. In light of those circumstances, it would not be fair to require Dr. Frank to provide specific exposure data for Mr. Kovach.
And while defendant cites Pluck, supra , 640 F.3d at 677 for the proposition that plaintiff must provide proof of his or her level of exposure, that case is distinguishable. In Pluck , the record established that the plaintiff's exposure was at a level below the EPA's recommended maximum. Here, the record contains no such assurances. To the contrary, the record shows that for over twenty-five years, Mr. Kovach worked for Wheeling and in the vicinity of various potentially toxic chemicals.
Defendant also takes issue with what it describes as Dr. Frank's "any exposure" theory of causation. In his deposition, Dr. Frank testified that "any exposure would have increased [Mr. Kovach's] risk" and that "there's no safe level of exposure to a carcinogen other than zero." (Doc. 23-3, pgID 434-35). Defendant argues that this view is "fundamentally flawed" and has been questioned by other courts in their evaluations of expert opinions. (Doc. 28, pgID 616). While defendant is correct that other courts have questioned the "any exposure" theory, the cases that defendant cites are distinguishable because they do not involve the alternate approach of a differential diagnosis, which is at issue here.
Furthermore, the Court in Pluck found that the expert's differential diagnosis was unreliable and therefore inadmissible as an alternate means to establish causation. Here, I find that Dr. Frank's differential diagnosis is sufficiently reliable to survive defendant's Daubert motion. While defendant's concerns about Dr. Frank's conclusions may be valid, those concerns are more appropriately addressed on cross-examination than by excluding the testimony.
Defendant argues that plaintiff cannot use a differential diagnosis in this case because plaintiff's exposure expert, Dr. Vance, acknowledged that there are tests that could have estimated Mr. Kovach's levels of exposure. Aside from the fact that defendant does not identify what tests could have been done and what information they would have provided, defendant also fails to identify relevant case law supporting its argument. The case it cites, Hardyman, supra , 243 F.3d at 262, does not stand for the proposition that a plaintiff cannot use a differential diagnosis unless exposure data is unavailable. It simply states that differential diagnosis is an alternate method of proving causation.
iii. Differential Diagnosis
The Sixth Circuit requires that a doctor performing a differential diagnosis "(1) objectively ascertains, to the extent possible, the nature of the patient's injury, [...] (2) rules in one or more causes of the injury using a valid methodology, and (3) engages in standard diagnostic techniques by which doctors normally rule out alternative causes to reach a conclusion as to which cause is most likely." Best, supra , 563 F.3d at 179.
The first consideration, the nature of Mr. Kovach's disease, is not in question here. No one disputes that he had non-Hodgkin's lymphoma.
In addressing the second consideration, Dr. Frank ruled in exposure to benzene as a potential cause of Mr. Kovach's cancer by relying on the scientific studies discussed above, his experience in occupational medicine, and details about Mr. Kovach's exposures to chemicals in the workplace.
Regarding the third consideration, Dr. Frank reviewed Mr. Kovach's medical records and evaluated other potential causes for his cancer. (Doc. 23-3, pgID 402, 444-46). He ruled out smoking as a source of benzene exposure because Mr. Kovach never smoked. (Id. , pgID 412; Doc. 26-2, pgID 556); see Pluck, supra , 640 F.3d at 680 (finding that plaintiff's expert did not sufficiently rule out alternative causes of her non-Hodgkin's lymphoma where plaintiff had an "extensive smoking habit"). He also considered Mr. Kovach's age, noting that he was "quite young when he passed away." (Doc. 23-3, pgID 446).
It is worth noting that defendant does not identify any other potential causes for Mr. Kovach's cancer, suggesting only that it may be idiopathic, i.e. there is no known cause. (Doc. 23-3, pgID 447).
The Sixth Circuit has explained that the central inquiry when evaluating a differential diagnosis is whether "experts at least consider alternative causes." Best, supra , 563 F.3d at 179. To be sure, not all opinions based on a differential diagnosis will be reliable. Id. But "doctors need not rule out every conceivable cause in order for their differential-diagnosis-based opinions to be admissible." Id. at 181.
I find that Dr. Frank's differential diagnosis meets this standard for admissibility. He has considered alternative causes for Mr. Kovach's cancer, as required by the Sixth Circuit, and as presented in Mr. Kovach's medical records. He has ruled out these causes for the reasons explained above.
Furthermore, I note that defendant does not take issue with the substance of Dr. Frank's differential diagnosis and ability to satisfy the three requirements outlined above. Defendant argues only that the differential diagnosis is deficient because it is not based on any evidence of exposure in the record. (See Doc. 28, pgID 609-10). I have already explained why I disagree and find that there is evidence of exposure in the record.
Defendant is, of course, free to attack Dr. Frank's opinion during cross-examination and highlight its weaknesses. And while a jury may side with defendant in concluding that Dr. Frank's opinion does not establish causation, I believe that is their determination to make.
I therefore deny defendant's Daubert motion.
2. Summary Judgment Motion
Defendant's motion for summary judgment is premised on my finding that Dr. Frank's opinions are unreliable. Defendant argues that plaintiff must present expert testimony regarding causation, and since Dr. Frank's opinions are unreliable and should be excluded, plaintiff cannot make out the necessary elements of a FELA claim.
Because I have found that Dr. Frank's opinions are admissible and because defendant's motion is premised on Dr. Frank's testimony being excluded, I must also deny defendant's motion for summary judgment.
Conclusion
It is, therefore, ORDERED THAT:
1. Defendant's Daubert motion and motion for summary judgment (Docs. 23, 24) be, and the same hereby are, denied; and
2. The Clerk shall forthwith schedule a status conference, with parties to submit status reports, and if appropriate, proved schedule(s).
So ordered.