LINDA J. RUSSELL, ADMINISTRATOR OF THE ESTATE OF MILFORD R. RUSSELL, JR.
ILLINOIS CENTRAL RAILROAD COMPANY
Session Date October 21, 2014
Appeal from the Circuit Court for Shelby County No. CT00581510 Jerry Stokes, Judge
Thomas R. Peters and Mark R. Kurz, Belleville, Illinois; Brooks E. Kostakis and Stephanie Camille Reifers, Memphis, Tennessee, for the appellant, Illinois Central Railroad Company.
Donald N. Capparella, Nashville, Tennessee, and William P. Gavin, Swansea, Illinois, for the appellee, Linda J. Russell, Administrator of the Estate of Milford R. Russell, Jr.
Richard H. Dinkins, J., delivered the opinion of the court, in which J. Steven Stafford, P. J., W. S., and Arnold B. Goldin, J., joined.
RICHARD H. DINKINS, JUDGE
This appeal arises out of a negligence action brought pursuant to the Federal Employers Liability Act (" FELA"), 45 U.S.C. § 51 et. seq., by Linda Russell (" Mrs. Russell"), the widow of Milford R. Russell, Jr., (" Mr. Russell") against Illinois Central Railroad Company to recover for the death of her husband, who worked as a mechanic in Illinois Central's Trigg Avenue and Johnston Yard maintenance shops in Memphis from 1974 to 2007. Mr. Russell died on September 20, 2008, of squamous cell oropharyngeal (throat) cancer. Mrs. Russell alleged that her husband's cancer and death resulted from his exposure to asbestos, diesel exhaust, and environmental tobacco smoke (" ETS" or secondhand smoke) during the course of his employment with Illinois Central. He was first diagnosed with throat cancer in 1989 when he was in his 40s and underwent treatment for eight to nine months. He returned to work in 1990, and in 1995, was told by his doctor that he was cured of cancer. He was diagnosed a second time on December 5, 2007.
Mrs. Russell filed suit on December 1, 2010. A two-week trial was held before a jury in April 2013. Twenty-nine witnesses testified at trial, 15 of which were experts. The jury found in favor of Mrs. Russell and awarded her $4, 255, 000.00. Pursuant to Illinois Central's motion to offset the judgment in the amount of medical bills paid by Mr. Russell's health insurance plan, the jury's award was reduced to $3, 335, 685.00.
Illinois Central now appeals the judgment, raising numerous issues, and Mrs. Russell appeals the reduction of the verdict.
A. Admissibility of the Opinions of Plaintiff's Expert Witnesses
We first address Illinois Central's challenge to the admission of the causation opinions of Plaintiff's expert witnesses, Dr. Arthur Frank,  Dr. Michael McClean and Dr. Karl Kelsey. All were disclosed by the Plaintiff as expert witnesses who would opine that asbestos, ETS, and diesel exhaust are human carcinogens to which Mr. Russell was exposed during his employment with Illinois Central and which caused, in whole or in part, him to develop the cancer at issue in this litigation. The qualifications of these witnesses as experts are not at issue; rather, Illinois Central contends that the court erred in admitting their testimony because their opinions did not satisfy Rules 702 and 703 of the Tennessee Rules of Evidence. Specifically, Illinois Central argues:
These opinions were based upon insufficient or unreliable data – in particular (1) the absence of published scientific or medical support and (2) the experts' admitted failure to measure, quantify or sufficiently consider the dose of claimed exposures – to form a valid scientific basis for the proposition that asbestos, diesel exhaust, or secondhand smoke can cause and did cause Mr. Russell's type of cancer.
1. Prevailing Law
The admissibility of scientific proof in the form of expert testimony is governed by Tenn. R. Evid. 702 and 703. The role of trial courts in applying these rules was explained succinctly in McDaniel v. CSX Transp., Inc.:
In Tennessee, under [Tenn. R. Evid. 702 and 703], a trial court must determine whether the evidence will substantially assist the trier of fact to determine a fact in issue and whether the facts and data underlying the evidence indicate a lack of trustworthiness. The rules together necessarily require a determination as to the scientific validity or reliability of the evidence. Simply put, unless the scientific evidence is valid, it will not substantially assist the trier of fact, nor will its underlying facts and data appear to be trustworthy, but there is no requirement in the rule that it be generally accepted.
McDaniel v. CSX Transp., Inc, 955 S.W.2d 257, 265 (Tenn. 1997). When determining whether expert testimony meets the requisites of Rules 702 and 703, the trial court must consider whether the " basis for the witness's opinion, i.e., testing, research, studies, or experience-based observations, adequately supports that expert's conclusions to ensure that there is not a significant analytical gap between the expert's opinion and the data upon which the opinion is based." Denning v. CSX Transp., Inc., M2012-01077-COA-R3CV, 2013 WL 5569145, at *5 (Tenn.App. Oct. 9, 2013) (quoting State v. Stevens, 78 S.W.3d 817, 834–35 (Tenn. 2002)). The analysis " has four general inter-related components: (1) qualifications assessment, (2) analytical cohesion, (3) methodological reliability, and (4) foundational reliability." Id. at *5 (quoting State v. Scott, 275 S.W.3d 395, 401–402 (Tenn. 2009)). In making a determination of reliability, the trial court may consider the following non-exclusive factors:
(1) Whether scientific evidence has been tested and the methodology with which it has been tested; (2) whether the evidence has been subjected to peer review or publication; (3) whether a potential rate of error is known; (4) whether, as formerly required by Frye, the evidence is generally accepted in the scientific community; and (5) whether the expert's research in the field has been conducted independent of litigation.
McDaniel, 955 S.W.2d at 265. These factors are not mandated in every case in which expert evidence is offered and should not be applied unless the factor or factors provide a reasonable measure of the expert's methodology. Brown v. Crown Equip. Corp., 181 S.W.3d 268, 272 (Tenn. 2005). The reasonableness of the McDaniel factors in assessing reliability depends upon the nature of the issue, the witness's particular expertise, and the subject of the expert's testimony. Id. at 277.
Generally, " questions regarding the admissibility, qualifications, relevancy and competency of expert testimony are left to the discretion of the trial court." McDaniel, 955 S.W.2d at 264 (citing State v. Ballard, 855 S.W.2d 557, 562 (Tenn. 1993)). We review the decision to admit the testimony of expert witnesses under the abuse of discretion standard. Id. A trial court abuses its discretion when it applies an incorrect legal standard or reaches a decision that is contrary to logic or reasoning and that causes an injustice to the party complaining. Mercer v. Vanderbilt University, Inc., 134 S.W.3d 121, 131 (Tenn. 2004). Where the opinions present conflicting scientific views, the court's role is to " analyze the science, " but it " need not weigh or choose between two legitimate or conflicting views." McDaniel, 955 S.W.3d at 265. Tenn. R. Evid. 104 favors the admissibility of evidence upon the court's determination that the opinions are based on " relevant scientific methods, processes, and data, and not upon an expert's mere speculation." Id. Once admitted, the trier of fact is to determine " the weight to be given to stated scientific theories and the resolution of legitimate but competing scientific views. Id.
2. Reliability of Differential Diagnoses
Plaintiff's experts Drs. Frank, Kelsey, and McClean each used a differential diagnosis to reach the opinion that the cancer which led to Mr. Russell's death was caused by carcinogens in the workplace. Illinois Central contends that the experts' opinions were not reliable because the differential diagnoses on which they were based " did not consider the dose, frequency or duration" of Mr. Russell's exposure to carcinogens at work.
The reliability of differential diagnoses was before the court in Hardyman v. Norfolk & Western Railway Co., 243 F.3d 255 (6th Cir. 2001), a FELA case in which a railroad employee sought to recover for carpal tunnel syndrome, which he alleged resulted from his work for the railroad. The district court had excluded two expert opinions that the employee's condition was caused by his work on the ground that the opinions were conclusory and unsupported by any objective, reliable methodology; the opinions were based on differential diagnoses. Hardyman, 243 F.3d at 261. The Court of Appeals reversed the exclusion of the opinions, holding that a differential diagnosis is " an alternative method of establishing causation, " one which may be utilized where the particular facts of the case do not lend themselves to quantitative analysis. Id. at 262.
The Hardyman court also cited with approval the decision in Westberry v. Gislaved Gummi AB, 178 F.3d 257 (4th Cir. 1999), which recognized that, while " information concerning the exposure necessary to cause specific harm to humans and exact details pertaining to the plaintiff's exposure are beneficial, " such information " is not always available, or necessary, to demonstrate that a substance is toxic to humans given substantial exposure and need not invariably provide the basis for an expert's opinion on causation." Hardyman, 243 F.3d at 265-66 (citing Westberry, 178 F.3d at 264). When the information is not available, an expert can still opine that the substance in question caused the plaintiff's illness. Hardyman, 243 F.3d at 266 (citing Heller v. Shaw Indus., Inc, 167 F.3d 146, 157 (3d Cir. 1999).
This Court addressed a similar issue in Wilson v. CSX Transp., Inc., E2002-00291-COA-R9CV, 2003 WL 1233536, at *1 (Tenn.App. Mar. 18, 2003), where the widow of a railroad worker brought a FELA action against her husband's employer, alleging that his exposure to chemicals at work caused her husband's cancer and subsequent death. Despite the defendant's contention in that case that the plaintiff's expert's opinion was too speculative because it was not based on " quantitative information about the amount of exposure or dosage, - this Court held that the opinion was reliable and thus admissible because it was based on a " qualitative exposure assessment" of the decedent's exposure to cancer-causing chemicals.
As with these cases, the exposures to asbestos, ETS, and diesel exhaust that Mr. Russell encountered at work were not quantified, but Mrs. Russell's medical experts concluded, using differential diagnoses, that the level of exposure was enough to cause his cancer. The various statements and depositions of employees of Illinois Central considered by the plaintiff's experts provided a qualitative assessment of the presence of and exposure to these carcinogens in the maintenance shops. The experts also considered Mr. Russell's social and medical history. From this body of evidence, Drs. Frank, McClean, and Kelsey considered all relevant potential causes of Mr. Russell's cancer and eliminated alternative causes. This is a process that produces a reliable opinion. We now address specific objections Illinois Central makes to the reliability of the opinions of Drs. Frank, McClean, and Kelsey.
3. Objections to the Reliability of the Opinions of Drs. Frank, McClean, and Kelsey
a. Dr. Frank
Illinois Central asserts that Dr. Frank's causation opinion was not reliable because he wrongly " extrapolated research concerning asbestos and laryngeal cancer to the separate condition of oropharyngeal cancer and relied entirely upon assumptions in this case.- As instructed by McDaniel, in determining whether Dr. Frank's causation opinion was reliable, we examine whether he based his opinion on " scientifically valid and reliable" methods, processes, and data, and not speculation. McDaniel, 955 S.W.2d at 258, 265.
Relying on the statements of Illinois Central employees, Dr. Frank determined that Mr. Russell was exposed to asbestos, ETS, and diesel exhaust during the course of his employment. Dr. Frank testified that the International Agency for Research on Cancer (" IARC") and other independent bodies have concluded that those three substances are human carcinogens; that there are scientific studies which provided support for his opinion that asbestos and the polycyclic aromatic hydrocarbons (" PAHs") in ETS and diesel exhaust are carcinogenic in the oropharynx; and that tonsils are part of the oropharynx, an area which has been studied with respect to the three carcinogens at issue in this case. Dr. Frank also testified that he relied on peer-reviewed research studies and data " from around the world" showing that tobacco smoke causes a wide variety of cancers in the oropharynx as well as studies examining the oropharynx with respect to the three carcinogens at issue to conclude that exposure to asbestos and the PAHs in diesel exhaust and ETS at his workplace caused Mr. Russell's cancer.
A trial court assessing reliability " need only apply those McDaniel factors that it finds reasonably measure the reliability of the particular expert's methodology." Brown, 181 S.W.3d at 281. One of the factors a court may consider is whether the evidence has been subjected to peer review or publication. McDaniel, 955 S.W.2d at 265. A trial court may conclude that an expert's opinions are reliable " if the expert's conclusions are sufficiently straightforward and supported by a 'rational explanation which reasonable [persons] could accept as more correct than not correct.'" Brown, 181 S.W.3d at 275 (citing State v. Stevens, 78 S.W.3d 817, 834 (Tenn. 2002)). Dr. Frank's conclusions based on these studies were not an improper extrapolation, as his trial testimony was sufficiently straightforward and supported by the type of rational explanation contemplated in Brown. The trial court did not apply an incorrect legal standard in determining that Dr. Frank's opinion was reliable under Rules 702 and 703 and in permitting the jury to hear it. The weight to be given his testimony was a matter properly assigned to the jury.
b. Dr. McClean
Illinois Central asserts that " Dr. McClean's causation opinions were based on the Paget-Bailly article, which is a meta-analysis of 63 articles with numerous flaws, and his resulting opinions were therefore unreliable." The underlying articles' flaws, according to Illinois Central, are the failure to control for HPV, smoking, and excessive drinking.
Dr. McClean testified that he found the Paget-Bailly article reliable and that it was one of the documents he relied on it in forming his opinion; he acknowledged that the underlying studies did not control for confounding factors. He testified that HPV was not known as an established risk factor for cancer until five years prior to trial; that failing to control for a factor like HPV does not prevent researchers from seeing the effects of another factor; that the underlying studies varied in whether they included data on potential confounding factors; and that he relied on more research than the Paget-Bailly article in forming his opinion, as reflected in his testimony pertaining to his review of the body of research available on cancers of the pharynx, larynx, and lung – the reliability of which Illinois Central does not attack on appeal.
Considering the entirety of Dr. McClean's testimony, that his opinion was based on more supporting facts and data than the Paget-Bailly article, and that he acknowledged and explained what Illinois Central asserts are limitations in that article, we have an insufficient basis on which to conclude that relying in part on the Paget-Bailly article renders his opinion unreliable. The trial court did not abuse its discretion in admitting the testimony of Dr. McClean.
c. Dr. Kelsey
Illinois Central asserts that " Dr. Kelsey's opinions had no reliable scientific basis, nor were they supported by a valid methodology." Illinois Central argues that Dr. Kelsey's causation opinion should have been excluded because only a small quantity of academic literature has discussed the association between asbestos, diesel exhaust, and ETS to oropharyngeal cancer, while his own research studies on oropharyngeal cancer listed only smoking, alcohol, and HPV as the three major risk factors. Defendant's four-sentence argument on this point categorizes Dr. Kelsey's testimony as " underwhelming" and then briefly quotes the trial court's denial of Defendant's Motion for a Directed Verdict in which the court remarked, " Dr. Kelsey was not the strongest expert we've heard to date.-
We have reviewed Dr. Kelsey's testimony and note that he reviewed the same medical records, pathology reports, depositions, statements, and some of the same research articles that both parties' experts relied upon in forming their opinions. A sufficient basis existed for Dr. Kelsey's causation opinion, which was properly put before the " jury to consider legitimate but conflicting views about the scientific proof." McDaniel, 955 S.W.2d at 266. The trial court did not abuse its discretion in allowing the jury to hear Dr. Kelsey's testimony.
In summary, we affirm the trial court's decision to admit the causation opinions of these three experts.
B. Sufficiency of the Evidence of Causation
Illinois Central asserts that there was no material evidence to support the jury's finding that Mr. Russell's cancer was caused by his occupational exposure to asbestos, diesel exhaust, or ETS. Specifically, Illinois Central contends that the causation opinions of Drs. Frank, McClean, and Kelsey are not " sufficient, reliable evidence that asbestos, diesel exhaust, or ETS is capable of causing oropharyngeal cancer.”
When a jury verdict has been approved by the trial court, the scope of our review is limited to whether or not the record contains any material evidence to support the verdict. Tenn. R. App. P. 13(d); see Harper v. Watkins, 670 S.W.2d 611, 631 (Tenn. Ct. App. 1983); Lassetter v. Henson, 588 S.W.2d 315, 317 (Tenn. Ct. App. 1979). We must take the strongest legitimate view of all the evidence to uphold the verdict, assume the truth of all that tends to support it, discard all evidence to the contrary, and allow all reasonable inferences to sustain the verdict. Moore v. Bailey, 628 S.W.2d 431, 433 (Tenn. Ct. App. 1981); Reynolds v. Ozark Motor Lines, Inc., 887 S.W.2d 822, 823 (Tenn. 1994). Similarly, the United States Supreme Court has held that in FELA cases where " 'there is an evidentiary basis for the jury's verdict, the jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion' and '[o]nly when there is a complete absence of probative facts to support the conclusion reached['] (by the jury) [']does a reversible error appear.'" Dennis v. Denver & R. G. W. R. Co., 375 U.S. 208, 210 (1963) (quoting Lavender v. Kurn, 327 U.S. 645, 653 (1946)).
Through the opinions of Drs. Frank, McClean, and Kelsey, the jury heard evidence that Mr. Russell's cancer was caused by his exposure to asbestos, diesel exhaust, or ETS in the workplace.  Because those opinions were offered to prove causation, an element of the Plaintiffs negligence claim, they were material. As we held in section A, these opinions were reliable and admissible. Thus, the jury was presented with material evidence upon which it could find that Mr. Russell's cancer was caused by workplace exposure to carcinogens.
C. Evidentiary Rulings During Trial
Illinois Central contends that the trial court made several erroneous evidentiary rulings during its examinations of Plaintiff's experts Drs. Vance, McClean, Westra,  and Kelsey and during its examination of Duane Amato.
1.Standard of Review
Decisions regarding the admission or exclusion of evidence are entrusted to the trial court's discretion and will not be disturbed on appeal unless the trial court abused its discretion. State v. Banks, 271 S.W.3d 90, 116 (Tenn. 2008) (citing State v. Robinson, 146 S.W.3d 469, 490 (Tenn. 2004); State v. James, 81 S.W.3d 751, 760 (Tenn. 2002). An abuse of discretion occurs when the court applies incorrect legal standards, reaches an illogical conclusion, or employs reasoning that causes an injustice to the complaining party. Banks, 271 S.W.3d at 116 (citing Konvalinka v. Chattanooga–Hamilton County Hosp. Auth., 249 S.W.3d 346, 358 (Tenn. 2008)). When we review the trial court's exercise of discretion, we presume that the court's decision is correct and review the evidence in a light most favorable to upholding the decision. Lovlace v. Copley, 418 S.W.3d 1, 16-17 (Tenn. 2013) (citing Gonsewski v. Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011)). As noted in White v. Vanderbilt University:
Appellate courts will set aside a discretionary decision only when the trial court has misconstrued or misapplied the controlling legal principles or has acted inconsistently with the substantial weight of the evidence. Thus, a trial court's discretionary decision should be reviewed to determine: (1) whether the factual basis for the decision is supported by the evidence, (2) whether the trial court identified and applied the applicable legal principles, and (3) whether the trial court's decision is within the range of acceptable alternatives. Appellate courts should permit a discretionary decision to stand if reasonable judicial minds can differ concerning its soundness. …The erroneous exclusion of evidence will not require reversal of the judgment if the evidence would not have affected the outcome of the trial even if it had been admitted.
21 S.W.3d 215, 222-23 (Tenn. Ct. App. 1999).
2.Application of Tenn. R. Evid. 618
Illinois Central contends that the trial court misapplied Tenn. R. Evid. 618 by requiring counsel to establish that certain articles were reliable and authoritative as a precondition of their use for impeachment purposes.
The trial court properly required Illinois Central to establish that the articles with which it sought to impeach the credibility of Plaintiff's experts were a " reliable authority" as required by and within the meaning of Rule 618. We view the requirement that the treatise be a " reliable authority" as foundational, i.e., that, as a baseline requirement, the work be established through testimony as an " authority" or " authoritative" and, equally important, that it be established as " reliable." In this manner, the objective of Rule 618 - that the material used to undermine the expert's testimony have sufficient worthiness - is reached. In light of the qualifications and process by which a witness may be permitted to testify as an expert, it is appropriate that requirements of equal dignity be imposed on the material used by a party seeking to impeach that expert's credibility. The trial court's rulings in this case were consistent with the letter and the spirit of Tenn. R. Evid. 618 and were not an abuse of discretion. See McCay v. Mitchell, 463 S.W.2d 710, 721 (Tenn. Ct. App. 1970) (noting that " [t]he extent and type of proof required to establish the authoritative nature of the medical book or treatise is a matter largely within the discretion of the trial judge").
In contending that the court erred in its application of Rule 618, Illinois Central cites us to several specific instances during the cross examination of Dr. Vance in which it sought to use scientific studies by various researchers to undermine his credibility. Illinois Central complains that it was required to establish the works as " reliable authorities" before being permitted to discuss their contents. Dr. Vance did not testify at any point that these studies were reliable authorities as required by the Rule. The specific rulings by the trial court to which we have been cited include sustained objections to hearsay, lack of foundation, or to the form of the question. Considered in context, these objections flowed from the failure of Illinois Central to lay a proper foundation for its intended use of the studies by establishing them as reliable authorities, with the exception of one ruling pertaining to a work by Dr. Harvey Bartle to be discussed below. We conclude that the court did not misapply the rule.
Counsel for Illinois Central attempted to cross examine Dr. Vance using a book on industrial hygiene authored by Dr. Lanza in 1939 and a chapter it contained written by Dr. Harvey Bartle. Dr. Vance testified that the book was a reliable authority, and the following exchange occurred:
Q. In that publication by Dr. Bartle, he actually was asked by Dr. Lanza to write a whole chapter on problems in the railroad industry, correct?
A. Yes, sir.
Q. Medical problems?
A. Medical problems, right.
Q. He wrote 20 or 30 pages or 15 pages on the very topic of railroad industrial hygiene, correct?
A. Well, he wrote about medical problems. Dr. Bartles was – he wrote as
a physician talking about medical surveillance, in fact.
Q. And in that document, about half a page, he actually talked about occupational diseases in the railroad industry, correct?
A. I don't remember without looking at it. I haven't seen it in years.
[Witness was handed a copy of the chapter and read it.]
Q. Okay. And in that document, they – Dr. Bartles, in that chapter, never mentions asbestos is an occupational disease ...