Hirsch v. CSX Transportation, Inc.
2011 U.S. App. LEXIS 18613
| 6th Cir. | 2011Background
- In Oct 2007, CSX train derailed near Painesville, Ohio causing a three-day fire and evacuation of ~1,300 people.
- Nine cars carried hazardous materials; plaintiffs allege 2,800 tons of burning material and toxic emissions, including elevated dioxin levels in the town.
- Plaintiffs filed negligence, nuisance, strict liability, trespass, and medical monitoring claims; district court dismissed all but negligence and allowed equitable medical monitoring.
- After discovery, CSX moved for summary judgment; plaintiffs needed proof of proximate causation and injury under Ohio law.
- Plaintiffs offered expert reports (Kaltofen, Jacobus, Sajo, Kornberg) alleging exposure and increased cancer risk to support medical monitoring.
- District court granted summary judgment for CSX, holding plaintiffs failed to prove dioxin causes disease and a materially increased cancer risk justifying monitoring; plaintiffs appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs can recover for medical monitoring without proven injury | Kornberg supports monitoring due to increased risk | No substantial risk or disease causation; monitoring not warranted | No genuine issue; monitoring not warranted |
| Whether evidence shows dioxin exposure caused appreciable disease risk | Experts show elevated dioxin exposure and potential risk | Exposure evidence is speculative and unreliable | Exposure and risk insufficient for reasonable physician monitoring |
| Whether Daubert admissibility affects summary judgment ruling | Experts' reports should be considered if admissible | Even admissible evidence can be a scintilla failing for summary judgment | Admissibility and sufficiency separate; no material fact issue |
Key Cases Cited
- Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (Sup. Ct. 1993) (admissibility of expert evidence; reliability standards)
- In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717 (3d Cir. 1994) (reiterates admissibility vs. sufficiency in expert evidence)
- Friends for All Children, Inc. v. Lockheed Aircraft Corp., 746 F.2d 816 (D.C. Cir. 1984) (medical monitoring may be available for heightened risk)
- Day v. NLO, Inc., 851 F. Supp. 869 (S.D. Ohio 1994) (monitoring as compensable future medical expenses when tests needed)
- Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (S. Ct. 1986) (summary judgment standard; no genuine issue for trial)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (S. Ct. 1986) (genuine issue of material fact required to survive summary judgment)
- Shropshire v. Laidlaw Transit, Inc., 550 F.3d 570 (6th Cir. 2008) (scintilla standard for evidence on summary judgment)
- Williams v. Ford Motor Co., 187 F.3d 533 (6th Cir. 1999) (expert testimony on ultimate issue limited under summary judgment)
- Zettle v. Handy Mfg. Co., 998 F.2d 358 (6th Cir. 1993) (limits on expert testimony to establish causation at summary judgment)
- Redland Soccer Club v. Dep't of the Army, 55 F.3d 827 (3d Cir. 1995) (limits on requiring testing in some toxic torts)