Smith v. Csx Transportation, Inc.

FIRST DIVISION
BARNES, P. J.,
MCMILLIAN and MERCIER, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
October 27, 2017
In the Court of Appeals of Georgia
A17A1201. SMITH v. CSX TRANSPORTATION, INC.
MCMILLIAN, Judge.
Earl Smith appeals the trial court’s grant of summary judgment to CSX
Transportation, Inc. (“CSX”), asserting that the trial court erred in (1) excluding the
testimony of his expert witness, Dr. Arthur Wardell, and (2) granting summary
judgment to CSX on his claims brought under the Federal Employers’ Liability Act
(“FELA”), 45 U.S.C. § 51 et seq. For the reasons that follow, we affirm.
We review a grant of summary judgment de novo, construing the evidence and
all reasonable conclusions and inferences therefrom in the light most favorable to the
nonmovant. See Bisnott v. Norfolk Southern R., 338 Ga. App. 897, 897 (792 SE2d
436) (2016). Summary judgment is appropriate when no genuine issues of material
fact remain and the moving party is entitled to judgment as a matter of law. Id.So viewed, the record shows that Smith began working for CSX in 1980 as a
laborer in the bridges and buildings department. Over the course of his 32-year career
with CSX, Smith worked in a variety of different roles, including as a bridge helper,
flagman, assistant foreman, foreman, and track inspector. Smith’s duties with each
job varied. For example, when Smith worked as a flagman – in 1981, at various times
from 1996 to 1999, and again from 2001 until 2006 – he was responsible for directing
rail traffic and overseeing contract workers but was not engaged in physical labor.
However, when Smith worked as a track inspector, including from 1999 to 2001 and
2006 to 2012, his duties included pulling and driving spikes and changing rails and
bolts in addition to inspecting the track. According to Smith, this work hurt his back,
his hands, and his knees.1 And in separate, prior lawsuits, he settled claims against
CSX related to a back injury, a right knee injury, and carpel tunnel syndrome in both
hands.2
1
Smith also complained that the pull bars, sledge hammers, impact wrenches,
rail saws, rail drills, and hydraulic system tools were antiquated and made the work
more difficult. However, at certain points during his career, CSX provided updated
tools, such as switching out the derrick crane to a boom truck, the push cars for high
rail trucks, and the crosscut saws for chainsaws.
2
Smith subsequently further injured his back when he fell out of a deer stand
and continues to experience chronic back pain. He also continues to have right knee
pain that prevents him from performing his job duties and will need additional knee
2
In 2009, Smith began experiencing pain in his right shoulder and eventually
underwent surgery in July 2010. He returned to work following surgery but then
began experiencing the same pain in his left shoulder, which led him to leave CSX
on occupational disability in February 2012. In July 2012, Smith filed this FELA
lawsuit, alleging that he was exposed to “harmful repetitive motion, cumulative
trauma, awkward work postures, vibration, and other harmful conditions” that caused
injury to his shoulders and right foot.3 In support of his claims, Smith offered the
testimony of his specific causation expert, Dr. Wardell, who opined that Smith’s
occupational duties, including his use of heavy tools and other types of work, were
a significant factor in causing the acromioclavicular arthritis4 in his left and right
shoulders, which led to his occupational disability. Following Dr. Wardell’s
deposition, CSX moved to exclude his testimony and for summary judgment. The trial
court granted CSX’s motion to exclude Dr. Wardell after finding that, although Dr.
Wardell is a qualified orthopedist whose testimony is relevant, his opinions in this
surgery in the future.
3
Smith originally also sought recovery for an injury to his right foot, but has
abandoned that claim on appeal, and we will not address that portion of Dr. Wardell’s
opinions.
4
Acromioclavicular arthritis is a type of osteoarthritis or degenerative arthritis.
3
case are not reliable. And because Smith was therefore unable to provide evidence of
specific causation, the trial court granted summary judgment to CSX. This appeal
followed.
1. In his first enumeration of error, Smith asserts that the trial court erred in
excluding Dr. Wardell’s testimony. At the outset, we note that “[t]he determination
of whether a witness is qualified to render an opinion as an expert is a legal
determination for the trial court and will not be disturbed absent a manifest abuse of
discretion.” (Citation and punctuation omitted.) HNTB Ga., Inc. v. Hamilton-King,
287 Ga. 641, 642 (1) (697 SE2d 770) (2010).
a. Smith first contends that the trial court erred in excluding Dr. Wardell’s
testimony because FELA relaxes the standard of causation that would otherwise apply
in a personal injury case and consequently lowers the standard by which trial courts
assess expert witness testimony. We disagree. “The Federal Employers’ Liability Act
is a federal statute that gives a railroad employee the right to sue his employer in state
or federal court for injury or death resulting in whole or in part from the railroad
company’s negligence.” Norfolk Southern R. Co. v. Zeagler, 293 Ga. 582, 586 (2)
(748 SE2d 846) (2013). To bring a FELA claim, the plaintiff must prove each of the
traditional common law elements of negligence: duty, breach, foreseeability, and
4
causation. See id. Under FELA, however, the causation standard is relaxed, and “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.” (Citation and punctuation omitted.) Norfolk
Southern R. Co. v. Schumpert, 270 Ga. App. 782, 784 (1) (608 SE2d 236) (2004).
“Nevertheless, some evidence of causation is required; FELA is not a no-fault
workers’ compensation statute.” Id. And, “[i]n all FELA lawsuits, the plaintiff bears
the burden of proving medical causation.” (Citation omitted.) Lee v. CSX Transp.,
Inc., 233 Ga. App. 30, 31 (503 SE2d 309) (1998).
Although the standard for proving causation is relaxed in a FELA case, it does
not necessarily follow that the standard for evaluating the admissibility of expert
testimony under OCGA § 24-7-702 is similarly relaxed. This question appears to be
one of first impression in Georgia, but federal courts have held that the trial court’s
“application of Rule 702 and Daubert . . . is not altered in any way by the substantive
law governing Plaintiff’s claims. While this is a FELA case, to which a relaxed
standard of causation applies, the standard of causation under FELA and the
standards for admission of expert testimony under the Federal Rules of Evidence are
distinct issues and do not affect one another.” (Citation, footnote, and punctuation
5
omitted.) Bowers v. Norfolk Southern Corp., 537 FSupp.2d 1343, 1352 (M.D. Ga.
2007), aff’d Bowers v. Norfolk Southern Corp., 300 Fed. App’x 700 (11th Cir. 2008).
“Thus, the fact that FELA employs a relaxed standard of causation does not mean that
in FELA cases courts must allow expert testimony that in other contexts would be
inadmissible.” Id. (“admission of expert testimony is controlled – even in FELA cases
– by the Federal Rules of Evidence and Daubert”). See also Claar v. Burlington
Northern R. Co., 29 F3d 499, 503 (9th Cir. 1994) (“Nor does it mean that in FELA
cases courts must allow expert testimony that in other contexts would be
inadmissible.”). We find these cases to be persuasive5 and likewise hold that FELA
does not alter the standards for the admission of expert witness testimony under
OCGA § 24-7-702.
b. We now turn to Smith’s assertion that the trial court erred in treating this
“routine orthopedic case” as a “toxic exposure case” in excluding Dr. Wardell’s
testimony under OCGA § 24-7-702. Again, we disagree. OCGA § 24-7-702 provides:
5
OCGA § 24-7-702 is based upon Federal Rule of Evidence 702, and we look
to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (113 SCt 2786, 125
LE2d 469) (1993) and its progeny in construing this statute. See Dubois v. Brantley,
297 Ga. 575, 580 (2) (775 SE2d 512) (2015).
6
If scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience, training,
or education may testify thereto in the form of an opinion or otherwise,
if: (1) The testimony is based upon sufficient facts or data; (2) The
testimony is the product of reliable principles and methods; and (3) The
witness has applied the principles and methods reliably to the facts of
the case which have been or will be admitted into evidence before the
trier of fact.
The proffering party bears the burden of presenting evidence of reliability in order to
meet the standards of OCGA § 24-7-702 (b). See HNTB Ga., Inc. v. Hamilton-King,
287 Ga. 641, 646 (2) (697 SE2d 770) (2010).
“Though Daubert involved scientific experts, the Supreme Court has since
made it clear that the strictures of Rule 702 and Daubert apply with equal force to
non-scientific expert witnesses.” (Citation omitted.) Bowers, 537 FSupp.2d at 1350.
Thus, a medical doctor’s opinions regarding injury causation “clearly fall within
Federal Rule of Evidence 702’s scope of ‘scientific knowledge’ and must satisfy
Daubert.” Wilson v. Taser Intl., Inc., 303 F. App’x 708, 713 (11th Cir. 2008).
“Importantly, any step that renders the analysis unreliable renders the expert’s
testimony inadmissible.” Bowers, 537 FSupp.2d at 1350. The trial court has broad
7
discretion in deciding how to assess the reliability of expert testimony. See Hamilton-
King, 287 Ga. at 642-43 (1); United State v. Frazier, 387 F3d 1244, 1264 (11th Cir.
2004). This discretion affords the trial court “considerable leeway . . . in deciding
which tests or factors to use to assess the reliability of an expert’s methodology.”
Bowers, 537 FSupp.2d at 1351.
Here, the trial court considered three factors in assessing the reliability of Dr.
Wardell’s opinions: whether his conclusions were based upon sufficient facts or data,
whether he reached those conclusions by use of reliable principles and methods, and
whether he applied those principles and methods reliably to the facts of the case. See
OCGA § 24-7-702 (b). The trial court first found that Dr. Wardell’s use of a
“differential etiology”6 to opine on the cause of Smith’s injuries is a legally sufficient
methodology. The court then turned to the facts and data Dr. Wardell relied upon and
how he applied his methodology to the facts of this case.
At deposition, Dr. Wardell testified that he is not Smith’s treating physician
and that he saw Smith one time for approximately one hour. And although Dr.
6
“In a differential etiology, the doctor rules in all the potential causes of a
patient’s ailment and then by systematically ruling out causes that would not apply
to the patient, the physician arrives at what is the likely cause of the ailment.”
(Citation and punctuation omitted.) Brown v. Burlington Northern Santa Fe R. Co.,
765 F3d 765, 769 (7th Cir. 2014).
8
Wardell agreed that knowledge of the work Smith performed for CSX is important,
his only understanding of Smith’s work history is what Smith was able to recount for
him. Dr. Wardell also agreed that his opinions depend on the reliability of Smith’s
report. In a handwritten memorandum prepared for Dr. Wardell, Smith recounted a
“list of activities” that he performed, along with the “worst tools and applications.”
These activities included “standing on 20” wide swinging scaffold all day long,
climbing bridge or ladders numerous times a day,” using a “13/16 36” bit to drill into
bridge timber,” and “loading and unloading 40-120 lb. granite stone by hand.”
With respect to the frequency or duration of any particular task, Smith’s
descriptions were vague. For example, when describing how he would load creosote
onto the back of a work truck with lug hooks, he explained “and this happened more
often than you think.” Moreover, Smith admitted that he used a variety of tools, some
of which required him to operate machinery standing up versus squatting down, and
that they used all different muscle groups. Smith testified that he would have no way
of calculating what percentage of time he was in any particular posture.7
7
Although Smith later claimed he could calculate the hours he worked with
each tool for each week of his career, there is nothing in the record to indicate that he
did so or provided such information to Dr. Wardell.
9
Dr. Wardell confirmed that Smith did not specify the frequency with which he
performed his various duties and that he was unable to quantitate the level of
repetitive stress Smith experienced in his various job duties or whether Smith
performed any particular task in excess. Nonetheless, Dr. Wardell did not attempt to
bridge this factual gap by watching anyone perform any of the duties Smith
complained of or traveling to a railroad yard to take any measurements relevant to
repetitive stress injuries. Dr. Wardell did not review any studies regarding ergonomics
relevant to Smith’s particular job duties, nor is he aware of any literature connecting
acromioclavicular arthritis to railroad work. Instead, Dr. Wardell relied upon sports
medicine literature linking heavy weight lifting to acromioclavicular arthritis.
After examining these facts, the trial court determined that Dr. Wardell’s
testimony is “surprisingly unsubstantiated and superficial – Dr. Wardell simply
concludes that because a weight lifter or body builder gets the same injury from
overhead lifting then the Plaintiff must also have exacerbated his condition from
work-related overhead lifting.”8 Accordingly, the trial court found Dr. Wardell’s
8
The trial court specifically noted the lack of any further scientific or technical
evidence, such as an explanation for the reason Smith’s type of injury might occur in
the context of his work duties; the amount and type of activities he performed that
might cause this type of injury; and whether Smith actually engaged in this amount
and type of activity.
10
opinions lacked the necessary reliability and thus must be excluded at trial. Based on
the record before us, we find that the trial court did not abuse its discretion in
excluding Dr. Wardell’s testimony.
“[A]n expert must do more than just state that she is applying a respected
methodology; she must follow through with it. In deciding whether an expert
employed a reliable method, the [trial] court has discretion to consider whether the
expert has adequately accounted for obvious alternative explanations.” (Citations and
punctuation omitted.) Brown v. Burlington Northern Santa Fe R. Co., 765 F3d 765,
773 (7th Cir. 2014) (although FELA plaintiff need only prove employer’s negligence
was a cause (and not the sole cause) of his injury, without performing an
investigation, plaintiff’s expert could not rule out other activities as the sole cause of
plaintiff’s condition). Furthermore, we have previously cautioned against confusing
general causation with specific causation - here, whether certain work duties can
cause acromioclavicular arthritis versus whether Smith’s work duties actually caused
11
or exacerbated his acromioclavicular arthritis.9 See Shiver v. Ga. & Fla. Railnet, Inc.,
287 Ga. App. 828, 830 (1) (652 SE2d 819) (2007).
In this case, Smith’s medical history, along with his claim that an unknown
combination of various work duties caused his degenerative injuries, present an
unusually complex specific causation issue. The record shows that Smith’s medical
history is complicated by diagnoses of chronic obstructive pulmonary disorder,
hypertension, diabetes, obesity, and rheumatoid arthritis. Medical records also
indicate that Smith may suffer from fibromyalgia – as evidenced by his “chronic
widespread pain, fatigue, and insomnia” – and that he is a life-long smoker. In
addition, Smith has a family history of osteoarthritis, rheumatoid arthritis, and
fibromyalgia. The complexity of these factors “underscores the need for Dr. [Wardell]
to have done more than simply adopt [Smith]’s history as his causation opinion and
opine, without scientific support,” that Smith’s work history caused his injury.
Wilson, 303 F. App’x at 714 (medical degree does not authorize doctor to testify
when he does not base his methods on valid science). In fact, Dr. Wardell agreed that
9
To maintain a claim for aggravation of a pre-existing injury, a FELA plaintiff
“must show (1) that the employer was negligent during the applicable time period; (2)
that that negligence aggravated the pre-existing injury; and (3) the degree to which
it aggravated the injury.” Phelps v. CSX Transp., Inc., 280 Ga. App. 330, 335 (634
SE2d 112) (2006).
12
osteoarthritis is the most common type of arthritis and that there is a high correlation
with aging, with virtually everyone experiencing some degree of osteoarthritis by age
40, and that smoking, obesity, and hereditary influences also affect the development
of osteoarthritis.
Again, we find federal courts addressing similar issues to be persuasive. The
Seventh Circuit has found that a FELA plaintiff’s expert witness failed to utilize a
reliable methodology where he “entirely failed to personally observe [plaintiff’s]
working conditions, obtain a written work description, or perform scientific tests. He
also failed to investigate several possible causes of [plaintiff’s] health problems.”
Brown, 765 F3d at 773. In addition, the court also found fault with the expert’s lack
of knowledge of the duration or frequency of the plaintiff’s exposure to the alleged
condition at work, concluding that “[c]omparing two unknown, potentially wide-
ranging variables is not a scientific exercise.” Id. at 774 (observing plaintiff’s actual
working conditions is important to avoid “ruling in” risk factors that were not actually
present at his job).
We also take special note that another federal court has previously found Dr.
Wardell’s testimony unreliable in a FELA case for similar reasons. Bowers, 537
FSupp.2d at 1354-59. The Bowers court first explained that Dr. Wardell had failed
13
to demonstrate that his causation opinions were testable, had failed to offer any error
rate for his opinions, had not shown evidence that his opinions have been peer
reviewed or that he used a peer-reviewed source to reach his opinions, and had failed
to show the general acceptance of his opinions. Id. at 1353-54. Turning to the five
additional factors trial courts are permitted to use for testing expert opinions set forth
in the advisory committee notes under Rule 702, the court found that Dr. Wardell was
not testifying about matters growing naturally and directly out of research he
conducted independent of litigation, but rather that he had developed his opinions
expressly for purposes of litigation.10 Id. at 1354 (noting that plaintiff’s counsel sent
him from his home in Savannah to Suffolk, Virginia to see Dr. Wardell, not for
treatment, but to build his case for litigation). As in this case, the Bowers court
concluded that Dr. Wardell had “unjustifiably extrapolated from an accepted premise
to an unfounded conclusion.” Id. at 1355 (“Absent from this vague premise is any
specific information about the amount of [movement] that is harmful to an individual,
the length of time over which such harm normally occurs, and the nature of the
10
The court also noted that, although Dr. Wardell is a board-certified
orthopedist, his interest is in sports medicine. Bowers, 537 FSupp.2d at 1354.
14
resulting harm.”).11 “Expert testimony lacks ‘fit’ when a large analytical leap must be
made between the facts and the opinion.” (Punctuation omitted.) Id. at 1351 (citing
GE v. Joiner, 522 U.S. 136, 147 (118 SCt 512, 139 LE2d) (1997)).
These fatal flaws are likewise present in this case. “[W]here evidence almost
exists, a judge may be tempted to surrender his or her duty to a jury. This is exactly
what should not happen.” Tootle v. CSX Transp., Inc., 746 FSupp.2d 1333, 1340
(S.D. Ga. 2010). Accordingly, the trial court did not abuse its discretion in excluding
Dr. Wardell’s testimony. See Bowers, 537 FSupp.2d at 1361 (“[O]pinions based on
a differential diagnosis are admissible only if the trial court determines that the expert
reliably applied the differential diagnosis method.”); Moore v. Cottrell, Inc., 334 Ga.
App. 791, 794 (1) (780 SE2d 442) (2015) (trial court did not abuse its discretion in
excluding expert’s testimony where, inter alia, he did not inspect workplace
machinery at issue and it was unclear what analysis he applied).12
11
As in this case, the district court found that “it appears from the record that
Dr. Wardell simply took Plaintiff’s word for what happened and adopted that
explanation as his own opinion on causation.” Bowers, 537 FSupp.2d at 1357.
12
Smith also appears to separately enumerate as error an assertion that under
FELA, CSX’s liability extends to aggravation of pre-existing arthritic conditions.
While this is true, Dr. Wardell’s opinions on causation are similarly flawed as
described in this Division. See Phelps v. CSX Transp., Inc., 280 Ga. App. 330, 334
(634 SE2d 112) (2006) (under FELA, employer has duty to provide its employees
15
2. In his second enumeration of error, Smith asserts that the trial court erred in
granting summary judgment to CSX. He first argues that CSX is not entitled to
summary judgment because he provided admissible expert testimony regarding
causation.13 However, for the reasons stated in Division 1, this argument fails. Smith
next asserts that his lay testimony was sufficient to prove causation and avoid
summary judgment. This argument is without merit.14
To avoid summary judgment, the plaintiff “must establish, with competent
evidence” each element of his FELA claim. (Emphasis supplied.) Zeagler, 293 Ga.
at 596 (2). As one federal court has explained, “[t]he relaxed causation standard is
reasonably safe work conditions, which duty extends to providing a workplace that
does not aggravate a pre-existing injury).
13
Within this enumeration of error, Smith also expounds on the reasons he
believes the trial court erred in excluding Dr. Wardell’s testimony. We are not
persuaded, however, that any of these augmented arguments show that the trial court
abused its discretion. See HNTB Ga., Inc., 287 Ga. at 642 (1). Regardless of Dr.
Wardell’s qualifications or selected methodology, he simply did not possess sufficient
factual knowledge of Smith’s various work duties, including the intensity, frequency,
or duration of those duties, nor did he reach his conclusions by use of reliable
principles and methods. See McCann v. Illinois Central R., 711 FSupp.2d. 861, 870-
71 (C.D. Ill. 2010) (excluding causation expert in cumulative trauma case where he
had little knowledge regarding actual risk factors FELA plaintiff was exposed to).
14
We further note that at the hearing on CSX’s motion for summary judgment,
Smith’s counsel conceded that without Dr. Wardell’s testimony, Smith was unable
to prove specific causation.
16
simple enough to meet in cases involving readily understood injuries, e.g., those that
result from being hit by a train. But when there is no obvious origin to an injury and
it has multiple potential etiologies, expert testimony is necessary to establish
causation.” (Citation and punctuation omitted.) Brown, 765 F3d at 771. And, “[i]n
particular, for most cumulative trauma injuries, courts follow the general principle
that a layman could not discern the specific cause and thus they have required expert
testimony about causation.” Id. See also Brooks v. Union Pacific R. Co., 620 F3d 896,
899 (8th Cir. 2010) (in FELA cases, expert evidence required to establish causal
connection unless injury had an obvious origin, such as a broken leg from being
struck by an automobile).
Thus, where the cause of the injury – in this case, the onset of
acromioclavicular arthritis – is not obvious and the plaintiff has no admissible
medical expert testimony to support his claim that his employer caused his injury, the
employer is entitled to summary judgment. See Shiver, 287 Ga. App. at 831 (1).
Accordingly, because Smith is unable to present admissible expert testimony to prove
that his injuries were caused by CSX, the trial court did not err in granting summary
judgment to CSX.
Judgment affirmed. Barnes, P. J., and Mercier, J., concur.
17