Gillett v. BNSF Railway Company
4:20-cv-03120
| D. Neb. | Jul 7, 2022Background
- Plaintiff Steven C. Gillett, a BNSF employee from 1971–2013, sued under FELA for squamous cell carcinomas of the head/neck and left lung, alleging workplace diesel exhaust exposure; complaint filed Oct. 8, 2020.
- Medical timeline: head/neck cancer diagnosed Dec. 1, 2015; CT abnormalities in left lung noted April 2017; definitive lung-cancer notation disputed (plaintiff says Dec. 2017).
- Plaintiff testified to routine diesel exhaust exposure in older, non–air-conditioned locomotives and about 25 occasions when exhaust allegedly vented directly into a cab, prompting repair orders.
- Experts: plaintiff proffered Paul Rosenfeld (environmental chemist) on exposure and Ernest Chiodo (physician/toxicologist) on general and specific causation; defendant proffered Ritvik Mehta (otolaryngologist) to rebut causation and exposure conclusions.
- Motions: parties filed Rule 702 (Daubert) challenges to experts; defendant moved for summary judgment asserting the FELA statute of limitations, insufficient evidence if plaintiff’s experts were excluded, dismissal of a Locomotive Inspection Act claim (49 C.F.R. §229.43), and lack of foreseeability.
- Ruling: the court denied all Daubert challenges and denied the defendant’s summary judgment motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Rosenfeld (exposure expert) | Rosenfeld is qualified to assess diesel particulate exposure using EPA risk-assessment methods and literature; he relied on case-specific and peer-reviewed data | Unqualified (not an industrial hygienist/toxicologist), used EPA Superfund methodology inappropriate for occupational exposure, flawed conversions and data choices | Admitted. Court found Rosenfeld qualified, methodology sufficiently reliable and applied to facts; methodological disputes go to weight, not exclusion |
| Admissibility of Chiodo (medical causation expert) | Chiodo is highly credentialed and properly used literature and differential etiology, relying on Rosenfeld for exposure inputs | Lacks sufficient factual basis, misidentified diagnosis, did not quantify exposure/dose, and relied on a speculative "one-hit" idea | Admitted. Court found Chiodo qualified and his differential etiology and reliance on Rosenfeld permissible; challenges affect weight, not admissibility |
| Admissibility of Mehta (defendant's medical rebuttal) | (Plaintiff sought exclusion) Mehta’s literature search and exposure assumptions are unreliable and he is not an industrial hygienist | Mehta is qualified as an ENT and used literature and differential etiology to rebut causation and exposure conclusions | Admitted. Court concluded Mehta is qualified and his methodological choices go to weight and cross-examination rather than exclusion |
| Summary judgment (statute of limitations; Locomotive Inspection Act §229.43; sufficiency of evidence; foreseeability) | Gillett contends he did not know, and had no reason to know, diesel exhaust caused his cancers until after media/advertising; disputed dates of lung-cancer diagnosis | BNSF argues claim accrued by Dec. 1, 2015 or by Apr. 13, 2017; §229.43 does not apply absent proof of a specific locomotive/date; lack of expert proof or foreseeability justifies judgment | Denied. Court found genuine disputes of material fact about accrual (discovery rule), sufficient factual record to proceed on §229.43 theory re: exhaust venting into cabs, and that expert challenges do not compel dismissal; foreseeability argument unsupported in briefing |
Key Cases Cited
- Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993) (trial court gatekeeping role for expert reliability and relevance)
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) (Daubert principles apply to all expert testimony)
- CSX Transp. Inc. v. McBride, 564 U.S. 685 (2011) (FELA causation standard: employer negligence need only play any part, however slight)
- Torgerson v. City of Rochester, 643 F.3d 1031 (8th Cir. 2011) (summary judgment: view facts in light most favorable to nonmovant where genuine dispute exists)
- Brooks v. Union Pac. R.R. Co., 620 F.3d 896 (8th Cir. 2010) (expert required when causation not obvious to a layperson)
- Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748 (8th Cir. 2006) (expert admissibility requires assessment of qualifications and application of methodology)
- Russell v. Whirlpool Corp., 702 F.3d 450 (8th Cir. 2012) (reliability factors for expert methodology)