Sherman v. BNSF Railway Company

IN THE

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

PEORIA DIVISION

JUDITH SHERMAN,

Plaintiff,

v. Case No. 1:17-cv-01192-JEH

BNSF RAILWAY COMPANY, f/k/a

Burlington Northern and Santa Fe

Railway Company,

Defendant.

Order

Now before the Court are Defendant BNSF Railway Company’s Motion to

Exclude Plaintiff’s Expert Dr. Mark Levin (Doc. 100)1, Defendant’s Motion to

Exclude Plaintiff’s Expert Leonard Vance, Ph.D. (Doc. 101), and Defendant’s

Motion for Summary Judgment (Doc. 107). The Motions are fully briefed, and for

the reasons set forth below, the Defendant’s Motion to Exclude Plaintiff’s Expert

Dr. Mark Levin is GRANTED, the Defendant’s Motion for Summary Judgment is

GRANTED, and the Defendant’s Motion to Exclude Plaintiff’s Expert Leonard

Vance, Ph.D. is MOOT.2

I

Plaintiff Judith Sherman filed the instant lawsuit on May 2, 2017 against

Defendant BNSF Railway Company (BNSF) pursuant to the Federal Employers’

Liability Act, 45 U.S.C. 51 et seq. (FELA). Compl. (Doc. 1). Specifically, the Plaintiff

alleged that from 1957 to 2001, she was employed by the Defendant in its

1 Citations to the Docket in this case are abbreviated as “(Doc. ___).”

2 The parties consented to the jurisdiction of a U.S. Magistrate Judge. (Doc. 30).

Galesburg, Illinois railyard as a train order operator, crew caller, and in the clerk

craft. 1st Am. Compl. (Doc. 22). She alleged that during the course and scope of

her career with the Defendant and while working in its yards, building, and offices

and near locomotives and other heavy machinery: she was exposed to various

toxic substances and carcinogens including but not limited to asbestos, coal dust

residue, solvent fumes, oil mist, diesel exhaust, benzene, and brake dust; she was

routinely, on a daily basis, at various levels exposed to those toxic substances and

known carcinogens, whether by touch, inhalation, and/or consumption; and the

foregoing exposures caused or contributed to her development of colon cancer

which was diagnosed on May 7, 2014. Id. The Plaintiff further alleged her

exposure was cumulative and occurred daily or on a regular basis at different and

variable exposure levels over the course of her career depending on her work

location at a given moment throughout any given day. Id. Finally, the Plaintiff

alleged her cancer and subsequent symptomatology are the result of the

negligence of the Defendant in that it utilized the aforementioned known cancer

causing materials in its operations. Id.

II

On October 1, 2021, Defendant BNSF filed its Motion to Exclude Plaintiff’s

Expert Dr. Mark Levin seeking to bar Dr. Levin’s opinions in this case pursuant to

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Federal Rule

of Civil Procedure 702. The Plaintiff disclosed Dr. Levin as an expert witness on

medical causation on February 1, 2021. Dr. Levin is a licensed and board-certified

physician with specialties in internal medicine, oncology, and board-eligible in

hematology. Though a “relaxed standard of causation applies under FELA,” CSX

Transp., Inc. v. McBride, 564 U.S. 685, 692 (2011), the standard for admissibility of

expert testimony is not altered under FELA. See Brown v. Burlington N. Santa Fe

Ry. Co., 765 F.3d 765, 771-72 (7th Cir. 2014) (considering whether plaintiff’s expert

in FELA case presented reliable testimony under Rule 702, Rule 703, and Daubert).

The parties frame their arguments in terms of Dr. Levin’s general and specific

causation opinions. See Aurand v. Norfolk S. Ry. Co., 802 F. Supp. 2d 950, 953 (N.D.

Ind. 2011) (stating a toxic tort plaintiff must adduce evidence of both general and

specific causation). The Court proceeds in like manner and first considers Dr.

Levin’s general causation opinion.

A

In Dr. Levin’s original report, dated August 31, 2020, he was asked to

evaluate this case to determine whether the Plaintiff’s exposure to carcinogens

caused or contributed to her rectal cancer.3 He stated the Plaintiff “was exposed

to diesel exhaust, and asbestos at the BSNF [sic] Railroad [sic[ Company” and that

she was exposed to “multiple carcinogens together repeatedly and over a

prolonged time.” Dr. Levin 8/31/20 Report pgs. 3, 4 (Doc. 100-1 at pgs. 3, 4). Dr.

Levin cited two resources pertaining to diesel exhaust exposure and two resources

pertaining to asbestos exposure in support of his opinion that “based on prolonged

exposure to several carcinogens that cause rectal cancer, and the absence of other

risk factors for this condition . . . Ms. Sherman’s occupational exposures to diesel

exhaust and asbestos were contributing factors in the development of her rectal

cancer.” (Doc. 100-1 at pg. 6). Dr. Levin authored two supplemental reports on

January 31, 2021 and February 21, 2021 pertaining to the Plaintiff’s declination of

recommendations in 2007, 2009, 2010, and 2011 that she undergo a colonoscopy.

(Docs. 100-2 and 100-3).

3 The Plaintiff’s treating oncologist, hematologist Dr. David Oubre confirmed at his deposition that the

Plaintiff had a malignant neoplasm of the rectum, specifically adenocarcinoma. Dr. Oubre Dep. pg. 11

(Doc. 107-5 at pg. 4). He agreed that adenocarcinoma was the most common form of colorectal cancer. Id.

B

1

Federal Rule of Evidence 702 and the principles outlined in Daubert govern

the admissibility of expert testimony. Bielskis v. Louisville Ladder, Inc., 663 F.3d 887,

893 (7th Cir. 2011). Federal Rule of Evidence 702 provides that a witness “qualified

as an expert by knowledge, skill, experience, training, or education may testify” if:

(a) the expert's scientific, technical, or other specialized knowledge

will help the trier of fact to understand the evidence or to determine

a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods;

and

(d) the expert has reliably applied the principles and methods to the

facts of the case.

FED. R. EVID. 702. The Court is to act as a gatekeeper by “ensur[ing] that any and

all scientific testimony or evidence admitted is not only relevant, but reliable.”

Daubert, 509 U.S. at 589. In performing its gatekeeper role, the district court must

evaluate: 1) the proferred expert’s qualifications; 2) the reliability of the expert’s

methodology; and 3) the relevance of the expert’s testimony. Gopalratnam v.

Hewlett-Packard Co., 877 F.3d 771, 779 (7th Cir. 2017). Here, Defendant BNSF

challenges only the reliability of Dr. Levin’s testimony. To evaluate the reliability

of the proffered expert’s methodology, the Court should, in turn, consider among

other factors: whether the theory can be and has been tested; whether the theory

has been subjected to peer review and publication; the theory’s known or potential

rate of error; and the theory’s level of acceptance within the relevant community.

Daubert, 509 U.S. at 593-94. The reliability inquiry is a “flexible one,” and,

ultimately, the “focus . . . must be solely on principles and methodology, not on

the conclusions that they generate.” Id. at 594.

2

At his deposition, Dr. Levin testified that he “explored the literature,”

looked at industrial hygienist Dr. R. Leonard Vance’s report (the Plaintiff’s other

retained expert), and relied upon his “understanding based on education, training

and experience” to address whether or not asbestos causes rectal cancer. Dr. Levin

Dep. pgs. 53-54, 57 (Doc. 100-4 at pgs. 14-15). As for his exploration of the

literature, Dr. Levin explained that he “generally start[s] with a Google search

looking at asbestos and whatever the condition may be, in this case, rectal,

colorectal cancer, see what comes up and then pursue the thread.” Id. at pg. 54.

Dr. Levin testified that with regard to his opinions on diesel exhaust and rectal

cancer, his “general approach is to do a Google search, and that’s exactly what I

did in this case as well.” Id. at pg. 101 (Doc. 100-4 at pg. 26).

Defendant BNSF argues Dr. Levin’s methodology is unreliable as he did not

retain a list of what he viewed and what information he considered, he has no

record of when the Google search was performed, what search terms he used,

which sites he looked at, which articles he looked at, and what information he

considered and discarded or why. The Plaintiff counters Dr. Levin’s causation

opinions were reliable because he drew from his extensive knowledge, training,

and experience as a medical oncologist in this case, he undertook a review of the

available literature, considering both positive and negative evidence, and he

reviewed publications of authoritative bodies.

Dr. Levin’s methodology – his Google search – seriously lacks indicia of

reliability. For instance, when asked at his deposition, Dr. Levin explained that he

did not have a list of all the studies he considered when he conducted his Google

searches, and he did not “have a record of every step along the search.” Dr. Levin

Dep. pg. 54 (Doc. 100-4 at pg. 15). He emphasized “it’s a process, it’s a search.” Id.

Assuming such studies existed, Dr. Levin could not recall any studies that resulted

from his search that would have been negative or not supported a connection

between rectal cancer and asbestos, and he “had not retained a list of such studies.”

Id. at pg. 55. He stated again that he “did not prepare a list of every paper I’ve

looked at or a list that was specifically negative, I did not prepare or retain such a

list.” Id. at pg. 56. Instead, Dr. Levin insisted, “Well, you may not know it and I

may not remember it [studies located when he conducted his Google search] at

this time, but I’m quite confident that that search was methodologically correct

and scientifically accurate.” Id. at pg. 57. He insisted further that to the extent he

saw negative studies, “I evaluated them, if I rejected them on such basis, that is an

expert’s opinion and expert’s prerogative.” Id. at pg. 58 (Doc. 100-4 at pg. 16). He

answered, with respect to his general causation opinions in this case, that he “did

not review every paper that may have addressed [scientific studies that have

addressed specifically asbestos and either rectal or colorectal cancer], [he] had not

tabulated, counted, recorded and therefore [he could not] produce such a list.” Id.

at pg. 61. Dr. Levin similarly testified with regard to his opinions on diesel exhaust

and rectal cancer, he conducted a Google search but did not retain a list of studies

which related to that search. Id. at pg. 101 (Doc. 100-4 at pg. 26). He stated further,

“To the extent there are such papers [of studies which may not support a

connection between diesel exhaust exposure and rectal cancer], we do not know

that.” Id.

The Court is entirely precluded from finding Dr. Levin’s methodology was

reliable where he did not keep any record whatsoever of the particulars of his

Google search, including the simple fact of the date(s) on which he performed his

Google searches. Significantly, it would be essentially impossible for defense

counsel to effectively cross-examine Dr. Levin at trial without knowing the

particulars of Dr. Levin’s Google searches, specifically any information he

reviewed and rejected and the reasons for doing so. Dr. Levin’s methodology is

so lacking that it would be nearly useless to apply the non-exhaustive Daubert

factors to it in order to determine its reliability. Dr. Levin’s deposition testimony

about the methodology he employed made abundantly clear that he expects the

parties to accept the Plaintiff’s work exposure to asbestos and diesel exhaust

caused her rectal cancer because he says it did. But, of course, his say so is not

enough nor, given the particular facts here, are his knowledge, training, and

experience. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) (“Trained experts

commonly extrapolate from existing data. But nothing in either Daubert or the

Federal Rules of Evidence requires a district court to admit opinion evidence that

is connected to existing data only by the ipse dixit of the expert”). The fact that Dr.

Levin purportedly applied his knowledge, training, and experience to the existing

data he reviewed does not eliminate the shortcoming that the full extent of that

data is not known.

As for the underlying data and literature Dr. Levin did cite in support of his

opinions, those sources did not speak in definite terms. Instead, the American

Cancer Society website stated: “Some studies have also suggested that workplace

asbestos exposure may be linked to other cancers, including cancers of the . . .

colon, and rectum. However, the link between these cancers and asbestos is not as

clear as it is for the other cancers discussed here.” American Cancer Society,

https://www.cancer.org/cancer/cancer-causes/asbestos.html (last visited Jan.

14, 2022) (emphasis added); Dr. Levin 8/31/20 Report pg. 5 (Doc. 100-1 at pg. 5).

The cited “Paris study”4 stated with regard to asbestos exposure: “Our study did

not provide any clear evidence of an association with rectal cancer, but these findings

should be interpreted cautiously in view of the insufficient number of cases.”

https://ehp.niehs.nih.gov/doi/10.1289/ehp153 (last visited Jan. 14, 2022)

4 The Court refers to Dr. Levin’s cited resources using the titles given them by Defendant BNSF in its

Motion to Exclude Plaintiff’s Expert Dr. Mark Levin.

(emphasis added); Dr. Levin Dep. pg. 95 (Doc. 100-4 at pg. 25) (emphasis

added). The cited “Talibov study” stated: “This study showed a small risk

increase for rectal cancer after workplace diesel exhaust exposure. However, this

finding could be due to chance, given the limitations of the study.”

https://www.sciencedirect.com/science/article/pii/S2093791118302348 (last

visited Jan. 14, 2022) (emphasis added). The cited “Kachuri study” stated: “Our

findings suggest that sustained high-level exposure diesel emissions may increase

the risk of rectal cancer,” and “the observed increases in rectal cancer risk should

be viewed with caution, and it is possible that some of these associations may be due to

chance.” https://ehjournal.biomedcentral.com/articles/10.1186/s12940-016-

0088-1 (last visited Jan. 14, 2022) (emphasis added). The reservations stated in

each of Dr. Levin’s cited sources underscores the need for a more robust

articulation from Dr. Levin as to the information he considered and accepted or

rejected; only then could the Court determine whether Dr. Levin’s opinions were

based upon more than his mere say so.

The Plaintiff unconvincingly highlights Dr. Levin’s testimony that

“associated with” and “caused” are basically equivalent and that medical

literature typically speaks in terms of association as opposed to causation due to

the high level of proof and certainty required to use the term “caused.” Such

testimony magnifies the shortcomings in Dr. Levin’s report. Since he definitively

opined that the Plaintiff’s occupational exposures to diesel exhaust and asbestos

were contributing factors in the development of her rectal cancer, it was incumbent

upon Dr. Levin to present a methodology showing a high level of proof was

considered. Dr. Levin himself agreed “there’s a difference between the word

association and causation” and that the “Paris study” “set out to look at the

association and it found that there was an association . . . It would not be expected

that the word causation should appear when the clearly stated goal is to look at

the association . . . .” Dr. Levin Dep. at pgs. 90-91 (Doc. 100-4 at pg. 24).

As for the Defendant’s recitation of its own expert’s (Dr. Douglas L. Weed)

comment that Dr. Levin’s report “would be immediately rejected without peer

review because it is so far from an adequate review of the evidence on [the

proposed relationships between asbestos and rectal cancer and diesel exhaust and

rectal cancer],” the Court may consider such evidence without delving into the

jury’s province of deciding among the conflicting views of different experts. Dr.

Weed 6/30/21 Report pg. 71 (Doc. 100-6 at pg. 71). After all, Daubert instructs a

court to consider whether a proffered expert’s theory has been subjected to peer

review and publication. Dr. Weed’s comments are further proof that Dr. Levin’s

methodology is unreliable.

Because Dr. Levin’s general causation opinion is not reliable, it is

unnecessary for the Court to address his specific causation opinion; obviously, Dr.

Levin’s specific causation opinion cannot be reliable if his general causation

opinion is not. See Aurand, 802 F. Supp. 2d at 953 (explaining that general

causation addresses “whether a particular agent can cause a particular illness” and

specific causation addresses “whether that agent in fact caused the particular

plaintiff’s illness”) (emphasis in original).

3

While Dr. Levin’s flawed methodology is enough to exclude his opinions in

this case, he also failed to grasp the basic facts to which he applied that flawed

methodology. In his August 31, 2020 report, Dr. Levin incorrectly indicated the

Plaintiff worked in the Defendant’s Galesburg, Illinois railyard from 1957 to 1992

(she actually worked there until 2001) and that her husband had Hodgkin’s

Disease (she was actually never married). At his deposition, Dr. Levin testified

that passing out train orders outside “was a part of [Sherman’s] job for decades,

maybe 35 years or something like that.” Dr. Levin Dep. pg. 146 (Doc. 100-4 at pg.

38). The Plaintiff testified, however, that she did not remember how many years

she worked at the depot in downtown Galesburg handing up order to passenger

train crews, but stated, “I was there until they moved us to the yard office . . . The

train crews would come up to the office and get their orders. I didn’t have to go

outside[.]” Plf’s Dep. pgs. 100-01 (Doc. 100-5 at pg. 26). In other words, she did

not testify to handing up train orders for decades. Dr. Levin also stated, “I don’t

know anything about [railroad] clerks in general,” when asked if he thought

during the Plaintiff’s full employment period with BNSF, clerks would go out into

the yard and pass train orders.5 Dr. Levin Dep. pg. 147 (Doc. 100-4 at pg. 38). Dr.

Levin also twice incorrectly referred to the Defendant as “BSNF Railroad” in his

original report. The foregoing testimony and misstatements only further detract

from the representation that Dr. Levin is a qualified expert witness.

Accordingly, the Court finds that the Plaintiff’s expert Dr. Levin’s opinions

must be excluded in this case as they fall short under Rule 702 and Daubert.

III

On November 5, 2012, Defendant BNSF filed its Motion for Summary

Judgment arguing that the Plaintiff cannot prove the causation prong of her

negligence claim, and her FELA claim is barred by the statute of limitations. In

the introduction to its Motion for Summary Judgment, the Defendant explained

that its summary judgment motion presumed its Motions to Exclude Drs. Levin

and Vance would be granted and thus did not address those two experts. The

Plaintiff stated in both of her Reponses to the Motions to Exclude that while she

conceded that the granting of either Motion to Exclude would constitute a basis

for summary judgment, they were not independently dispositive. The Plaintiff

5 As provided in Section I, the Plaintiff alleged she was employed by the Defendant in its Galesburg,

Illinois railyard, among other roles, in the clerk craft.

did not address the Defendant’s causation argument at all in her Response to the

Motion for Summary Judgment; instead, she presented arguments and evidence

that her Complaint was timely filed.

The Plaintiff is wrong that the Court’s exclusion of Dr. Levin is not

independently dispositive. A plaintiff “must prove the common law elements of

negligence to prevail in a FELA case, including foreseeability, duty, breach, and

causation,” though, as noted supra, a “relaxed standard of causation applies under

FELA.” Crompton v. BNSF Ry. Co., 745 F.3d 292, 296 (7th Cir. 2014) (quoting CSX

Transp., Inc., 564 U.S. at 690). Here, the Plaintiff claims that during the course and

scope of her career with the Defendant, she was exposed to various toxic

substances and carcinogens and said exposure caused or contributed to her

development of colon cancer. The only evidence of said causation the Plaintiff has

presented to the Court is Dr. Levin’s opinions. Now that the Plaintiff cannot avail

herself of such evidence, she cannot prove the necessary element of causation

(relaxed or not). See Coffey v. Ne. Ill. Reg’l Commuter R.R. Corp., 479 F.3d 472, 476

(7th Cir. 2007) (“The fact that there may have been a number of causes of the injury

is irrelevant as long as one cause may be attributable to the railroad’s negligence”)

(quoting Heater v. Chesapeake & Ohio Ry. Co., 497 F.2d 1243 (7th Cir. 1974)). Thus,

the Defendant is entitled to summary judgment.

IV

On October 1, 2021, Defendant BNSF filed its Motion to Exclude Plaintiff’s

Expert Leonard Vance, Ph.D. Dr. Vance was “asked to offer opinions relating to

industrial hygiene issues in connection with toxic substance exposures suffered by

[the Plaintiff] while working with the BNSF Railroad and it predecessors[.]” Dr.

Vance 2/1/21 Report pg. 1 (Doc. 101-1 at pg. 1). He offered opinions on what

BNSF and it’s predecessors failed to do (namely, to provide the Plaintiff with a

reasonably safe place to work). He did not provide any opinions as to what caused

the Plaintiff’s cancer. The Motion to Exclude Dr. Vance is therefore moot as ruling

on it in the Plaintiff’s favor would not salvage the Plaintiff’s claim.

V

For the foregoing reasons, Defendant BNSF Railway Company’s Motion to

Exclude Plaintiff’s Expert Dr. Mark Levin (Doc. 100) is GRANTED, Defendant’s

Motion to Exclude Plaintiff’s Expert Leonard Vance, Ph.D. (Doc. 101) is MOOT,

and Defendant’s Motion for Summary Judgment (Doc. 107) is GRANTED. The

Clerk is directed to terminate this case.

It is so ordered.

Entered on January 14, 2022.

s/Jonathan E. Hawley

U.S. MAGISTRATE JUDGE