# Sherman v. BNSF Railway Company

> District Court, C.D. Illinois · January 14, 2022

URL: https://www.frixlaw.com/law-library/cases/10136592

## Case

- **Court:** District Court, C.D. Illinois
- **Decided:** January 14, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10136592

## How later opinions describe it (automated extraction)

- stating a toxic tort plaintiff must adduce evidence of both general and specific causation
- 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”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10136592. Public record. Not legal advice.