802 F. Supp. 2d 950
N.D. Ind.2011Background
- Plaintiffs Aurand, Gilliland, and Lipp sue Norfolk Southern under FELA alleging cancer from exposure to chemicals at the railroad railyard.
- Aurand and Lipp developed multiple myeloma; Gilliland developed chronic lymphocytic leukemia; all three are represented by the same counsel and proceedings are informally consolidated.
- Norfolk Southern moves four times in each case: exclude Dr. Lipsey’s expert report/testimony, strike references to Dr. Levy, seek summary judgment, and request oral argument on these motions.
- Court must assess general and specific causation evidence; Norfolk argues Lipsey’s methodology is Daubert/noncompliant and treating physicians lack proper expert reports.
- Plaintiffs argue Lipsey’s testimony survives and treating physicians form causation opinions during treatment, potentially avoiding Rule 26(a)(2) reporting.
- Judge excludes Lipsey’s testimony, excludes treating-physician causation opinions, grants summary judgment for Norfolk Southern, and denies Levy-related motions as moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Lipsey for causation | Lipsey’s opinions show general/specific causation basing on recognized science. | Lipsey’s methodology and data fail Daubert Rule 702 requirements; no reliable basis. | Lipsey’s testimony excluded; not admissible for general or specific causation. |
| Treating physicians as expert causation witnesses | Treating doctors form causation opinions in course of treatment; no Rule 26(a)(2) reports necessary. | Treating doctors did not provide causation opinions within treatment; Rule 26(a)(2) reports required. | Treating-physician causation opinions excluded; no Rule 26(a)(2)(B) reports produced. |
| Summary judgment on causation | Without Lipsey/treating doctors, plaintiffs still have admissible evidence of causation. | No admissible general or specific causation evidence remains. | Summary judgment granted for Norfolk Southern. |
Key Cases Cited
- Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (Supreme Court, 1993) (gatekeeping admissibility of expert testimony; reliability and relevance required)
- Myers v. Illinois Central Railroad Company, 629 F.3d 639 (7th Cir. 2010) (two-step causation requirement; need admissible general and specific causation evidence)
- Knight v. Kirby Inland Marine Inc., 482 F.3d 347 (5th Cir. 2007) (require careful analysis of studies; not admissible if analytical gap exists)
- Joiner v. General Electric Co., 522 U.S. 136 (Supreme Court, 1997) (examines how courts scrutinize studies relied upon by experts (Joiner/Daubert framework))
- Galbreath v. Terex Corp., N/A (N/A) (Not cited in opinion; included here to indicate examples omitted)
- Junk v. Terminix International Co., 628 F.3d 439 (8th Cir. 2010) (examines reliability/peer review in toxic-tort causation)
- Avila v. Willits Environmental Remediation Trust, 633 F.3d 828 (9th Cir. 2011) (illustrates review of studies for reliability and applicability to case)
- Lefler v. Chevron USA, Inc., 396 F. App’x 94 (5th Cir. 2010) (example of appellate treatment of causation material in toxic-tort context)