Romo v. Union Pacific Railroad Co. CA2/3
B304253
Cal. Ct. App.Jan 29, 2021Background
- Plaintiff Rodney A. Romo (FELA) sued Union Pacific alleging long‑term workplace exposures (diesel exhaust/fuel, benzene, creosote, dust, asbestos, solvents, etc.) caused his esophageal cancer.
- Union Pacific moved for summary judgment arguing Romo had no admissible evidence of causation; it relied on a declaration/report by defense toxicologist Paul Nony, Ph.D., who concluded the literature did not support a causal nexus and identified other likely causes (GERD, smoking, obesity).
- Romo filed opposition by the deadline attaching expert reports to his attorney’s declaration; those exhibits lacked a declaration under penalty of perjury and drew evidentiary objections.
- Five days before hearing and again shortly thereafter Romo filed sworn expert declarations (Drs. Landolph, Chiodo, Smith) but they were untimely under CCP § 437c(b)(2) and overlapped with defendant’s reply.
- The trial court overruled Romo’s oral challenge to Dr. Nony’s qualifications, sustained the evidentiary objections to Romo’s experts (untimely / procedural defects), found no triable issue of causation, and granted summary judgment for Union Pacific.
- On appeal Romo argued (1) Dr. Nony was unqualified because he is not an M.D., (2) the court abused discretion in excluding his late experts and should have applied FELA‑liberal construction, and (3) he was entitled to relief under CCP § 473(b). The Court of Appeal affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Qualification of defense expert to negate causation | Dr. Nony (industrial hygienist/toxicologist) is not an M.D. and thus cannot opine on etiology | Nony has a Ph.D. in toxicology, publications, and experience; qualified under Evidence Code §720 | Court: No abuse of discretion — non‑MD with relevant training may give causation opinion (expert gatekeeping standard satisfied) |
| Exclusion of plaintiff’s late expert declarations (CCP §437c(b)(2)) | Declarations should have been considered; continuance/reassignment and FELA policy justify lenity | Declarations were filed after opposition deadline and after defendant’s timely reply; Romo failed to obtain leave or show good cause | Court: Exclusion was within discretion; Romo should have sought relief or revised schedule; continuance did not reopen briefing timeframes |
| Application of FELA remediation policy to procedural deadlines | FELA’s remedial purpose requires flexible treatment of procedural rules in favor of plaintiff | State procedural rules govern practice in state courts even when federal substantive law applies; no special procedural lenity for FELA plaintiffs | Court: FELA does not excuse compliance with state summary judgment deadlines; cited federal authority denying leniency for late affidavits |
| Request for relief under CCP §473(b) for excusable neglect | Excusable neglect/mistake warrants discretionary relief to admit experts | No motion or affidavits seeking §473 relief were made below; appellant failed to pursue relief in trial court | Court: Denied on appeal — cannot obtain §473(b) relief for first time on appeal; appellant failed to move below and show diligence/causation |
Key Cases Cited
- Sargon Enterprises, Inc. v. University of Southern California, 55 Cal.4th 747 (trial court is gatekeeper for expert testimony; abuse of discretion standard)
- People v. Catlin, 26 Cal.4th 81 (non‑physician experts with relevant qualifications may give medical/causation opinions)
- Claar v. Burlington Northern R. Co., 29 F.3d 499 (parties may not file late affidavits opposing summary judgment without invoking Rule 56[d])
- Felder v. Casey, 487 U.S. 131 (states may prescribe procedural rules for litigation in their courts even when federal substantive law governs)