Lynn R. McNeel v. Union Pacific Railroad Company

Lynn R . McNeel brought this action under the Federal Employers' Liability A ct (FELA), alleging that he was injured when he inhaled fumes while employed as a conductor by Union Pacific Railroad Company (Union Pacific). T he district court for Lincoln County granted Union Pacific's Daubert/Schafersman motion to exclude McNeel's expert witnesses from testifying and subsequently entered summary judgment in favor of Union Pacific, from which McNeel appeals. We find no error and affirm.

BACKGROUND

On March 12, 2001, McNeel was working as a conductor on a freight train en route from North P latte, Nebraska, to Cheyenne, Wyoming. He was seated on the left side of the locomotive cab, and engineer LaVerne Golden was seated on the right side.

McNeel noticed nothing unusual as the train left North P latte and proceeded through Hershey and S utherland, Nebraska. A s they passed another train approximately 23 miles outside of Ogallala, Nebraska, McNeel noticed what he characterized as "the smell of sticking brakes” which persisted for a few seconds. McNeel opened the side window of the locomotive unit to check both his train and the passing train for smoke, but saw none.

There was never any smoke in the locomotive unit in which McNeel was working.

A short time later, McNeel detected "a light smell” which persisted for about 15 seconds. He described it as "more of a putrid smell” which was "different than anything I ever smelled.” He detected the odor again several miles later, again for only a few seconds. A few minutes later, McNeel detected the odor for the third time and asked Golden, the engineer, if he could smell it.

Golden replied that he could not. B ut then Golden came over to the side of the unit where McNeel was sitting and confirmed that he could smell the odor. A t that point, either McNeel or Golden contacted the dispatcher to advise that they needed to stop the train to investigate the odor. T hey eventually stopped the train at a pass on the west end of O gallala and were transported by ambulance to a local hospital for evaluation.

McNeel alleged that the inhalation of these unidentified fumes caused him to suffer "headaches, nausea, and injury to his respiratory system, dizziness and other injuries not yet diagnosed.”

He has been seen by a number of health care providers, including William J. R ea, M.D., a cardiovascular surgeon who currently practices in the field of environmental medicine; Theodore R . S imon, M.D., a specialist in nuclear medicine; and Nancy Didriksen, P h.D, a psychologist. T hese three providers submitted affidavits and depositions discussing McNeel's symptoms, condition, and treatment, and were the subject of the Daubert/Schafersman motion.

Rea diagnosed McNeel as suffering from toxic encephalopathy caused by his inhalation of an unspecified toxin while employed by Union Pacific on March 12, 2001. R ea described McNeel's symptoms as including "memory loss, confusion, brain fogg [sic] and imbalance.” In reaching his diagnosis, R ea relied on a "positive [single photon emission computed tomographic (SPE CT)] S can” performed by Simon, a "positive” result from "pupillography” testing of the autonomic nervous system, and "positive thermography.” R ea could not identify the substance responsible for McNeel's symptoms and diagnosis.

Simon testified that SPE CT scans are widely used and accepted in the diagnosis of toxic encephalopathy, when used in conjunction with other examination techniques.

Didriksen gave "Diagnostic Impressions” of "Cognitive Disorder Not Otherwise Specified” and "Adjustment Disorder with Mixed A nxiety and Depressed Mood” based upon her work with McNeel. Her tests revealed, inter alia, that McNeel's information processing speed was at the bottom of the average range and that his memory scores were "borderline and low average.”

Comparing her test results with previous results obtained by another doctor, Didriksen explained that her test results indicated a "significant difference” in McNeel's condition.

Didriksen's hypothesis is that McNeel experienced a toxic injury that led to declining cortical function over time.

Union Pacific moved to exclude the testimony of Didriksen, Rea, and Simon under Daubert/Schafersman. In support of its motion, it submitted affidavits and depositions from its own expert witnesses. These witnesses opined that the scientific techniques employed by McNeel's experts, specifically the SPECT scans performed by S imon and the psychological tests performed by Didriksen, were not validated, peer reviewed, or generally accepted by the scientific community for the purposes employed by McNeel's experts. T he district court concluded that there was adequate foundation for the opinions of McNeel's experts, but nonetheless excluded the opinions as "not relevant, not linked by any evidence to a causative factor, and, therefore, inadmissible.”

Union Pacific then moved for summary judgment. It offered and the court accepted the opinions of two expert witnesses who opined that there was no credible evidence causally linking McNeel's symptoms to his alleged exposure. T he court determined that this evidence met Union Pacific's initial burden as the party moving for summary judgment, thus shifting the burden to McNeel to show that there remained a genuine issue of material fact. T he court concluded that medical records offered by McNeel did not meet this burden, and therefore granted the motion for summary judgment. McNeel perfected a timely appeal, and we granted Union Pacific's petition to bypass the Court of Appeals.

ASSIGNMENTS OF ERROR

McNeel assigns, restated, that the district court erred in (1) excluding the proposed testimony of his expert witnesses, (2) granting Union P acific's motion for summary judgment because there were genuine issues of material fact as to whether his injuries were caused in whole or in part by exposure to toxic gasses while employed by Union Pacific, and (3) granting Union Pacific's motion for summary judgment because Union Pacific failed to collect and preserve certain evidence.

Union Pacific cross-appeals and assigns that the district court erred in finding the opinions of Didriksen, Simon, and R ea to be scientifically reliable.

STANDARD OF REVIEW

[1] Summary judgment is proper when the pleadings and evidence admitted at the hearing disclose no genuine issue regarding any material fact or the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.

[2] In reviewing a summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence.

[3,4] In proceedings where the Nebraska rules of evidence apply, the admission of evidence is controlled by rule and not by judicial discretion, except where judicial discretion is a factor involved in assessing admissibility. T he admission of expert testimony is ordinarily within the trial court's discretion, and its ruling will be upheld absent an abuse of discretion.

[5] A n abuse of discretion occurs when a trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.

ANALYSIS FELA Causation Standard

McNeel argues that in granting the motion for summary judgment, the district court did not appreciate the "lower evidentiary standard” applicable to a FELA plaintiff's burden of proof.

Federal law governs substantive issues in FELA claims litigated in state courts pursuant to concurrent jurisdiction.

Erikson v. U-Haul Internat., 274 Neb. 236, 738 N.W.2d 453 (2007). Wolski v. Wandel, 275 Neb. 266, 746 N.W.2d 143 (2008). Epp v. Lauby, 271 Neb. 640, 715 N.W.2d 501 (2006). S ee State v. Kuehn, 273 Neb. 219, 728 N.W.2d 589 (2007). In re Trust of Rosenberg, 273 Neb. 59, 727 N.W.2d 430 (2007). Epp v. Lauby, supra note 5. Brief for appellant at 12.

See, Monaghan v. Union Pacific RR. Co., 242 Neb. 720, 496 N.W.2d 895 (1993); Chapman v. Union Pacific Railroad, 237 Neb. 617, 467 N.W.2d 388 (1991).

[6] Under FELA, railroad companies are liable in damages to any employee who suffers injury during the course of employment when such injury results in whole or in part due to the railroad's negligence.10 T his court has stated that to recover under FELA, an employee must prove the employer's negligence and that the alleged negligence is a proximate cause of the employee's injury.11 We note that FELA causation standards apply where, as here, liability is premised in whole or in part on an alleged violation of the Locomotive Inspection A ct, formerly known as the B oiler Inspection A cts.12

McNeel argues that proximate causation under FELA is subject to a different, more lenient standard than under the common law. Indeed, there are federal cases which would appear to support his argument.13 Most are based on language in Rogers v. Missouri Pacific R. Co.,14 in which the U.S. Supreme Court stated: "Under [FELA] 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.” Based upon this language, some courts have stated that there is a "relaxed standard” for causation in FELA cases.15 O ther courts conclude from Rogers that the plaintiff in a FELA case "carries only a slight burden on causation.”16

The existence of a "relaxed standard” for proving causation in FELA cases was called into question by the U.S. Supreme Court's decision in Norfolk Southern Ry. Co. v. Sorrell.17 In that case, the Court held that in a FELA action, the same causation standard applies to the employer's negligence and the employee's contributory negligence, rejecting a contrary approach employed by Missouri state courts. In reaching this conclusion, the Court noted that the "fact that the common law applied the same causation standard to defendant and plaintiff negligence, and FELA did not expressly depart from that approach, is strong evidence against Missouri's disparate standards.”18 A concurring opinion noted that despite its interpretation by some courts, Rogers "did not address, much less alter, existing law governing the degree of causation necessary for redressing negligence as the cause of negligently inflicted harm; the case merely instructed courts how to proceed when there are multiple cognizable causes of an injury.”19 A nother concurrence, however, noted that the Court's opinion "leaves in place precedent solidly establishing that the causation standard in FELA actions is more 'relaxed' than in tort litigation generally.”20 A lthough the Court held that the causation standard for negligence and contributory negligence under FELA is the same, it did not articulate what the proper standard should be inasmuch as it did not grant certiorari on that issue.

[7] B ut even courts which have recognized a "relaxed standard” of causation have nevertheless held that a FELA plaintiff bears the burden of presenting evidence from which a jury could conclude the existence of a probable or likely causal relationship, as opposed to a merely possible one.21 In Chapman v. Union Pacific Railroad, we cited the aforementioned language

In common-law negligence cases where symptoms of an injury are subjective, Nebraska law requires medical testimony.23 Federal courts apply the same principle in FELA cases where injury is alleged to have occurred as a result of exposure to a toxic substance.24 In this case, expert testimony was necessary to establish the basis for an inference that McNeel's injuries were caused by the inhalation of fumes attributable to some negligent act or omission on the part of Union Pacific.

Exclusion of McNeel's Expert Witnesses

Our evidence rule governing expert opinion25 is similar to the federal rule,26 and in Schafersman v. Agland Coop,27 we held prospectively that trial courts would be required to evaluate the admissibility of expert opinion testimony under the analytical framework first established by the U.S. S upreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc.28 A s a principle of evidence, Daubert/Schafersman applies in a FELA case in the same manner as in other cases. A s one federal court has explained in a FELA case involving alleged injuries from exposure to workplace chemicals:

22 Chapman v. Union Pacific Railroad, supra note 9, 237 Neb. at 627, 467 N.W.2d at 395. 23 Eiting v. Godding, 191 Neb. 88, 214 N.W.2d 241 (1974). 24 Claar v. Burlington Northern R. Co., 29 F.3d 499 (9th Cir. 1994); Savage v. Union Pacific R. Co., supra note 21; Schmaltz v. Norfolk & Western Ry. Co., 878 F. S upp. 1119 (N.D. Ill. 1995). 25 Neb. R ev. S tat. § 27-702 (Reissue 1995). 26 Fed. R . E vid. 702. 27 Schafersman v. Agland Coop, supra note 2. 28 Daubert v. Merrell Dow Pharmaceuticals, Inc., supra note 2. Nebraska Advance Sheets mcneel v. uni on pacific rr. c o. 151 Cite as 276 Neb. 143

The standard of causation under FELA and the standards for admission of expert testimony under the Federal Rules of E vidence are distinct issues and do not affect one another. . . . It is true that under FELA the quantum of evidence sufficient to present a jury question of causation is less than it is in a common law tort action. . . . T his does not mean, however, that FELA plaintiffs need make no showing of causation. Nor does it mean that in FELA cases courts must allow expert testimony that in other contexts would be inadmissible. It means only that in FELA cases the negligence of the defendant "need not be the sole cause or whole cause” of the plaintiff's injuries. . . . FELA plaintiffs still must demonstrate some causal connection between a defendant's negligence and their injuries.29 Other circuits have reached the same conclusion,30 and the Nebraska Court of A ppeals has recently applied the Daubert/ Schafersman analysis in a FELA case involving an injury allegedly caused by exposure to diesel exhaust fumes.31

[8] Under the Daubert/Schafersman analytical framework, when a court is faced with a decision regarding the admissibility of expert opinion evidence, the trial judge must determine at the outset whether the expert is proposing to testify to (1) scientific, technical, or other specialized knowledge that (2) will assist the trier of fact to understand or determine a fact in issue.32 T his entails a preliminary assessment whether the reasoning or methodology underlying the testimony is valid and whether that reasoning or methodology properly can be applied to the facts in issue.33 T he first portion of the analysis "establishes a standard of evidentiary reliability.”34 T he second inquiry, sometimes referred to as "'fit,'” assesses whether the scientific evidence will assist the trier of fact to understand the evidence or to determine a fact in issue by providing "a valid scientific connection to the pertinent inquiry as a precondition to admissibility.”35 "'Expert testimony which does not relate to any issue in the case is not relevant and, ergo, non-helpful.'”36 "'Fit' is not always obvious, and scientific validity for one purpose is not necessarily scientific validity for other, unrelated purposes.”37

After examining the affidavits of McNeel's proferred experts Didriksen, S imon, and R ea, and the affidavits submitted by Union P acific's experts challenging the scientific reliability of their opinions, the district court concluded that "while . . . there is foundation for their 'shaky but admissible evidence', their opinions are not relevant, not linked by any evidence to a causative factor, and, therefore, inadmissible.” McNeel assigns error to the determination of inadmissibility. In its cross-appeal, Union P acific challenges the court's apparent determination of scientific reliability with respect to the experts' opinions. The cross-appeal raises a significant issue. A number of courts have determined that toxic encephalopathy, also known as multiple chemical sensitivity or idiopathic environmental intolerance, is a controversial diagnosis unsupported by sound scientific reasoning or methodology.38 S ome courts have specifically rejected or discredited the opinions of R ea and Didriksen on this subject.39

However, we need not reach the issue presented by the crossappeal because we conclude that the district court correctly concluded that even if considered scientifically reliable, the opinions of McNeel's experts did not "fit” the issues of this case because they did not identify any specific causative agent for the diagnosis of toxic encephalopathy.

[9] Generally, "'"[s]cientific knowledge of the harmful level of exposure to a chemical plus knowledge that plaintiff was exposed to such quantities are minimal facts necessary to sustain the plaintiff's burden in a toxic tort case.”'”40 B ecause McNeel's experts could not identify any toxic substance which caused the symptoms they diagnosed as toxic encephalopathy, their reasoning on causation was reduced to nothing more than post hoc, ergo propter hoc, which, as we said in Schafersman, "cannot be said to be helpful to the trier of fact under Neb. E vid. R . 702, even absent the application of a more stringent Frye[41] or Daubert analysis.”42 Didriksen admitted that this was her reasoning process. R ea testified that because McNeel experienced symptoms during and after his exposure to the unidentified fumes, the exposure caused the symptoms.

At least one court has specifically held in a FELA case that a causation opinion based solely on a temporal relationship is not derived from the scientific method and is therefore insufficient to satisfy the requirements of rule 702.43 In Carlson v. Okerstrom,44 we noted that when a person develops symptoms after encountering an agent which is known to be capable of causing those symptoms, courts have been more willing to admit expert testimony relying on the temporal connection between the exposure and the onset of symptoms. B ut here, no one can identify to which "agent,” if any, McNeel was exposed on the date of his alleged injury.

[10] Under the Daubert/Schafersman analysis, expert testimony lacks "'fit' when 'a large analytical leap must be made between the facts and the opinion.'”45 T hat is the case here. Assuming without deciding that the diagnosis of toxic encephalopathy was the product of scientifically reliable methodology, it is simply too great an analytical leap to conclude that it was caused by some act or omission on the part of Union P acific, given that the experts could not identify any toxic agent. Due to this lack of "fit,” the opinions of McNeel's experts would not have assisted the trier of fact in understanding the evidence or determining a fact in issue, and the district court did not abuse its discretion in determining that they were inadmissible.

Collection and Preservation of Evidence

McNeel assigns that the district court should not have entered summary judgment, because Union P acific "failed to collect and preserve evidence.” We find no motion or pleading in the record raising this issue. In its brief, Union P acific states that the issue was raised in a reply brief filed by McNeel in response to its motion in limine. In the district court's order on the motion in limine, it stated that McNeel claimed that Union P acific "destroyed or secreted evidence that would have shown the specific chemical agent and its source,” but determined that there was no evidence to support the claim.

[11-13] S poliation is the intentional destruction of evidence.46 It is a general rule that the intentional spoliation or destruction of evidence relevant to a case raises an inference that this evidence would have been unfavorable to the case of the spoliator.47 T he rationale of the rule is that intentional destruction amounts to an admission by conduct of the weakness of one's own case; thus, only intentional destruction supports the rationale of the rule.48 The inference does not arise where destruction was a matter of routine with no fraudulent intent49 because the adverse inference drawn from the destruction of evidence is predicated on bad conduct.50 In Nebraska, the proper remedy for spoliation of evidence is an adverse inference instruction.51 T here is nothing in the record to support a claim that Union P acific intentionally destroyed any evidence relevant to this case.

McNeel also argues that under Trieweiler v. Sears,52 Union Pacific had an affirmative duty to preserve all relevant evidence. Trieweiler was a derivative action brought by a minority shareholder, alleging breach of fiduciary duties. T he district court had made a finding that lost corporate financial records resulted in an adverse inference as to the party who had a fiduciary duty to maintain the records. We analogized the conduct in Trieweiler to spoliation, but noted it was not a case of spoliation because the record did not clearly establish that evidence had been intentionally destroyed by the majority shareholder. We noted that some principles of the rule of spoliation supported the district court's reasoning. Trieweiler has no application to this case, in that Union P acific owed no general fiduciary duty to McNeel to maintain records which, as far as we can determine from the record, had not been requested by McNeel or his counsel.

Summary Judgment

As the party moving for summary judgment, Union P acific was required to produce enough evidence to demonstrate that it was entitled to judgment if that evidence was uncontroverted at trial. T he burden then shifted to McNeel to produce evidence showing the existence of a genuine issue of material fact that would prevent judgment as a matter of law.53

Union P acific met its initial burden by producing the affidavit of a licensed psychologist who stated that McNeel's symptoms "cannot be causally attributed to any alleged toxic exposure by any generally accepted or scientifically validated method” and the affidavit of a physician who stated that "there is no credible psychiatric, medical, or scientific evidence that . . . McNeel suffers from toxic encephalopathy, any mental disorder, any cognitive impairment, or any other medical or psychiatric consequence as a result of any alleged exposure to fumes in the course of employment with . . . Union P acific.”

The only evidence offered by McNeel in opposition to the motion was an affidavit of his attorney which identified various medical records attached to the affidavit. T he district court determined that none of the records constituted expert medical testimony to show a link between the inhalation of fumes and the injuries allegedly suffered by McNeel. We agree. T here was no genuine issue of fact as to the element of causation, and Union Pacific was entitled to judgment as a matter of law.

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http://court.nol.org/opinions/2008/july/jul18/s07-155.pdf

For the reasons discussed, we conclude that (1) the district court did not abuse its discretion in excluding the testimony of McNeel’s expert witness as under Daubert/Schafersman, (2) the record does not support McNeel’s spoliation of evidence claim, and (3) the district court did not err in entering summary judgment in favor of Union P acific. A ccordingly, we affirm. Affirmed.