Summary: Plaintiff hired an Oncology Expert Witness to provide testimony related to a toxic tort claim
Facts: This case (York v. BNSF Railway Company – United States District Court – District of Colorado – February 21st, 2019) involves a toxic tort claim alleging negligence liability under the Federal Employers’ Liability Act (“FELA”). The plaintiff, who was employed as a conductor/brakeman by the defendant from 1976 to 1991 alleges that he was exposed to various carcinogens on the job, which he attributes to his development of bladder cancer. The plaintiff has hired Oncology Expert Witness Dr. E. Roy Berger to provide testimony. The defendant has filed a motion to exclude this expert from testifying.
Discussion: The defendant argues that Dr. Berger’s expert testimony should be excluded as it is unreliable. To support his opinion. Dr. Berger performed 5 hours of research on the effects of diesel exhaust and asbestos. The court notes that Dr. Berger received no information about the plaintiff or his work conditions from any other source. The court also notes that he did not review the plaintiff’s work history documentation, assess chemical testing records, speak to the plaintiff, analyze work conditions at the plaintiff’s facility, read the depositions transcripts of the plaintiff or any other witness in this case, or interview anyone besides the plaintiff’s counsel in forming his opinions.
The court opines that Dr. Berger’s conclusions are unreliable, the product of guesswork and assumption. The court opines that his opinion is not fairly attributable to any scientific data-gathering or methodological analysis. The court also opines that Dr. Berger’s opinions are little more than a vehicle for the conclusory suppositions of the plaintiff’s counsel which bypass the scientific method.
The court further notes that the plaintiff was not personally tested or physically examined in any way. In addition, Dr. Berger did not collect or review data reflecting the conditions at the defendant’s facility. The court also opines that Dr. Berger’s failure to base his conclusions on the defendant-specific data is reason enough to exclude him.
The defendant also argues that Dr. Berger did not employ any reliable scientific methodology. The court agrees, opining that Dr. Berger did not employ any methodology, let alone the “Bradford Hill” criteria, which is used for establishing causal connections based on epidemiology. The work Dr. Berger performed is not a reliable procedure subject to scientific scrutiny, but merely a means to affirm a pre-determined conclusion.
Finally, the court opines that even if the court would find Dr. Berger’s testimony admissible, he has not provided enough facts to prove specific causation.
Conclusion: The motion to exclude the expert witness testimony of Dr. E. Roy Berger is granted.