TLA Feature Articles and Case Notes Illinois Court Issues Opinion Which May Make Barring Expert Testimony More Difficult

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by his employer in vegetation control.

In Molitor v. BNSF Burlington Northern Santa Fe Railway Company (BNSF), 1 the Illinois First District Court of Appeals illustrated how the Frye 2 standard differs from the Federal Daubert 3 standard, and how Frye is more permissive with respect to the introduction of expert testimony. Molitor concerned Plaintiff’s alleged exposures to carcinogens while working for the defendant that resulted in his development of B-cell lymphoma. The decision has implications for any transportation entity that does business in Illinois because the decision will impact any type of litigation that involves expert testimony.

Plaintiff David Molitor brought his Federal Employers Liability Action (FELA) cause of action against his railroad employer, BNSF. The FELA allows a plaintiff to bring a claim for negligence for injuries incurred while working for the railroad.4 Plaintiff worked for the Defendant from 2014 to 2018. He alleged that his job duties required him to work in close proximity various toxic substances and carcinogens, which he alleged resulted in his development of B-cell lymphoma diagnosed in 2015. Although not alleged in his complaint, Plaintiff also claimed he was exposed to herbicides throughout his career, including Roundup, that were used

Plaintiff disclosed two experts: Dr. Perez, an industrial hygienist, and Dr. Chiodo, an internal medicine doctor. Defendant BNSF filed motions to bar both experts. The trial court granted the motions to bar. The court then granted Defendant’s motion for summary judgment because Plaintiff had no expert testimony to support his claims.

Expert Testimony

Dr. Perez is an industrial hygienist. He holds a Ph.D. in industrial hygiene and a master’s degree in public health. Dr. Perez conducted an interview of the Plaintiff and reviewed Plaintiff’s deposition. He also reviewed discovery materials provided by Defendant, including a presentation about the danger of diesel exhaust exposure.

Dr. Perez’s report stated that Plaintiff experienced chronic occupational diesel exhaust exposure during the 41 years between 1973 and 2014. Dr. Perez relied on Plaintiff’s statement that 95% of the locomotives were older high-emitting locomotives with cab environments that that allowed for built-up concentrations of diesel exhaust. Dr. Perez stated that Plaintiff’s locomotive cab environment exceeded the typical levels of buildup of exhaust occurred, and explained Plaintiff’s work setting were representative of environments associated the elevated risk of occupationally related cancer. Dr. Perez also concluded at the time Plaintiff began his career in 1973 the railroad industry was aware of the health risks that diesel exhaust posed to its employees.

Dr. Chiodo is a board-certified internal medicine and occupational medicine physician. He also has a master’s degree in public health as well as other associated degrees. He is also a certified industrial hygienist. In reaching his conclusions, Dr. Chiodo reviewed the complaint, the discovery depositions of the Plaintiff and the treating physicians, Plaintiff’s medical records and the report of Dr. Perez.

Dr. Chiodo’s report states that exposure to diesel exhaust is a well-known cause of lymphoma. The report goes on to state that exposure to herbicides is also known to cause lymphoma. His report concludes that the exposure to diesel exhaust and herbicides experienced by the Plaintiff during the course of his railroad employment were a significant cause of his development of diffuse B-Cell lymphoma. At his deposition he testified he “could” extrapolate from the fact that diesel exhaust was well known to cause lung cancer, that it could cause other cancers such as non-Hodgkin’s lymphoma.

Trial Court Opinion

In analyzing Dr. Perez’s opinions, the Cook County trial court stated that it must look beyond the expert’s conclusions and analyze the adequacy of the foundation. The trial court found that Dr. Perez’s opinions lacked the necessary foundations for the court to determine whether they were based on a methodology or principle that was accepted by the scientific community. The court further noted that his conclusions were not based upon facts, but upon his conversations with Plaintiff. The court barred Dr. Perez from testifying at the trial. With respect to Dr. Chiodo, the trial again court stated it must look beyond the conclusions to the basis of the opinion. The trial court noted that neither of the two published studies upon which Dr. Chiodo relied supported the assertion that exposure to diesel exhaust or herbicides causes B-cell Lymphoma. The court found that Dr. Chiodo had cited no scientific authority for his assertion that association essentially means causes if there is no confounder (or variable) stated. The trial court also found that Dr. Chiodo relied upon the extrapolation method, and provided no evidence that this method was generally accepted. The trial court also barred the testimony of Dr. Chiodo.

After striking Dr. Perez and Dr. Chiodo, the trial court found that as a matter of law Plaintiff could not make submissible case on proximate cause. The court then granted Defendant's motion for summary judgment.

Appellate Court Opinion

The Illinois First District Court of Appeals first noted that where an FELA action is brought in state court, questions of admissibility are governed by state law.5 In Illinois the exclusive controlling standard for determining admissibility of evidence is the Frye test. Under the Frye test, the scientific evidence is only admissible at trial if the technology or scientific principle upon which the opinion is based is sufficiently established to have gained general acceptance in particular field in which it belongs. The Court also noted that Frye test does not concern the ultimate conclusions that are reached. The Frye test does not make the judge a “gatekeeper” for all expert testimony. Finally, the Court noted that Illinois does not have a “Fryeplus-reliability” that requires anything more than meeting the basic Frye standard.6 Frye has been codified in Illinois Rule of Evidence 702.

The First District Court of Appeals then stated that the cases relied upon by Defendant were not Frye test cases. The Court explained that under the Frye test the trial court is not to examine the credibility or validity of the underlying data on which the expert’s opinion is based. The test is exclusively whether the scientific methodology or principle is generally accepted in the particular field.

The Court held that an adequate foundational basis existed for Dr. Perez to express the opinion. The facts and data upon which he relied came from Plaintiff’s deposition, his own interview of Plaintiff, and review of the documents produced as well as the literature. The Court noted these are the types of materials generally relied upon by experts. The Court further noted that lacking specific measurements of Plaintiff’s historical exposures, Dr. Perez concluded that based on peer reviewed studies he could accurately estimate Plaintiff’s historic levels of exposure. The Court stated that Defendant’s criticism of the factual basis of his opinions went to the weight of his testimony, not its admissibility.

The Court also found that his methodology, the historical exposure assessment, had been used for decades. The Court stated that the process had been used for decades, and the process was not new or novel. The Court then cited to several federal district court opinions from Nebraska where the court found the process acceptable.7 The First District Court of Appeals further noted that the federal district court used the “more stringent” federal Daubert standard. The Court concluded that the trial court erred in barring Dr. Perez.

For Dr. Chiodo, the Court agreed with Plaintiff’s counsel that the medical causation testimony expressed by Dr. Chiodo is not the type of scientific testimony subject to Frye analysis. Testimony by a physician about whether a particular event or thing was caused by an injury is rarely subject to the Frye test. The Court stated it could not identify what Plaintiff was claiming was new or novel about the doctor’s methodology.

The Court stated that it believed Defendant was actually claiming what was novel or new was the link between diesel exhaust or herbicide and non-Hodgkin’s lymphoma. The Court stated that it is not in position to make that determination. The Court further stated that Defendant did not provide an affidavit or article that this alleged link is new or novel. The Court stated that it had only Defendant’s attorney’s argument on the topic.

The appellate court further noted that the articles state there is an increased link or association between the exposure to contaminants and non-Hodgkins Lymphoma. The Court further stated that neither Frye nor Illinois law in general required definitive medical or scientific agreement on the existence of a causal relationship before a jury may hear evidence on the issue. The Court then cited Donaldson v. Central Illinois Public Service Commission, in which the court stated, “On questions such as these, which stand at the frontier of current medical epidemiological inquiry, if experts are willing to testify such a link exists it is for the jury to decide whether credit such testimony.”8 The appellate court reversed the trial court’s finding and allowed Dr. Chiodo to testify.

Because both experts were allowed to testify, the Court found that there was a genuine issue of material fact in the case and reversed the summary judgment in favor of Defendant.

Analysis

Molitor has major implications for any company that operates in Illinois, and especially transportation defendants. Railroads, barge companies and trucking companies will need to defend the toxic exposure cases like the case described here in Illinois Court. Transportation companies will also need to defend collision and injury cases that may involve complex liability and causation issues. The Molitor opinion removes many of the gatekeeping functions of the court, and makes it easier for almost any expert testimony to go to the jury. This finding removes one of the key defenses parties have in this type of litigation.

The First District Court of Appeals’ decision can be appealed to the Illinois Supreme Court. However, the Illinois Supreme Court grants Petitions for Leave to Appeal in very few cases. The chances that the Illinois Supreme Court will accept Petition and then reverse the First District Court of Appeals’ decision are relatively low.

TLA Feature Articles and Case Notes

As noted in the trial court’s conclusion, both of the experts’ opinions were flawed. There were significant problems with the data relied upon by the experts.

The appellate court never fully assessed these problems with the opinions. The appellate court used Frye to avoid ever assessing the opinions. The opinion leaves defendants open to many types of litigation that could have very little scientific basis.

Endnotes

1 Molitor v. BNSF Ry. Co., f/k/a Burlington Northern Santa Fe R.R. Co., 2022 IL App (1st) 211486 (Dec. 20, 2022).

2 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

3 Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).

4 45 U.S.C. 51, et seq. (2018).

5 Noakes v. Nat’l Passenger R.R. Corp., 963 Ill. App. 3d 851, 854 (2008).

6 See Donaldson v. Central Ill. Public Serv. Co., 199 Ill.2d 63 (2002), abrogated on other grounds by In re Commitment of Simons, 199 Ill.2d 63 (2004).

7 Lemberger v. Union Pacific R.R. Co., 463 F.Supp.3d 954 (D. Neb. 2020); Ramney v. Union Pacific R.R. Co.,No:8:18-CV-59, 2020 WL 3036200 (D. Neb. June 5, 2020); Bettisworth v. BNSF Ry. Co., No. 8:17-CV-491, 2020 WL 3498139 (D. Neb. June 29, 2020).

8 Donaldson, 199 Ill.2d at 81.