Myers v. Illinois Central Railroad

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-1279

T IMOTHY M YERS,

Plaintiff-Appellant,

v.

ILLINOIS C ENTRAL R AILROAD C OMPANY,

d/b/a Canadian National/Illinois Central

Railroad Company,

Defendant-Appellee.

Appeal from the United States District Court

for the Central District of Illinois.

No. 08 CV 02220—Michael P. McCuskey, Chief Judge.

A RGUED S EPTEMBER 15, 2010—D ECIDED D ECEMBER 15, 2010

Before M ANION, S YKES, and H AMILTON, Circuit Judges.

M ANION, Circuit Judge. For almost thirty years,

Timothy Myers worked for the Illinois Central Railroad

Company. The work was physically demanding and over

the course of his career Myers suffered several injuries,

including cumulative trauma disorders that eventually

forced him to retire. He sued the Railroad claiming that

2 No. 10-1279

these disorders were caused by its negligence. Before

trial, Myers offered reports from three medical doctors

and an ergonomist that would prove the Railroad’s negli-

gence caused his injuries. But the district court barred

Myers’s experts and granted summary judgment for

the Railroad. On appeal, Myers argues that the district

court erred. Because the opinions of Myers’s physicians

were based on speculation, and the nature of his

injuries necessitates expert testimony about specific

causation that the ergonomist could not provide,

we affirm.

I.

Myers is 50 years old, and he began working for the

Railroad after graduating from high school in 1978. Over

the years, he worked in various capacities, including

as a brakeman, a switchman, and a conductor. Since

the early 1990s, the job titles brakeman, switchman, and

conductor included the same employment tasks, and

we use them interchangeably. Regardless of the title,

Myers’s work was physically demanding. He would get

on and off a slow-moving train 30 or 35 times a day

and walk several miles every day on large, rocky ballast.

Ballast is simply the rock that surrounds the train

tracks. Sometimes the ballast was covered with bean

meal or corn meal, which made it like walking through

mud during the summer time and walking on ice in

the winter. In addition to walking miles in those condi-

tions, as many as 50 times a day Myers would throw

the switch that changes tracks that a train is traveling on.

No. 10-1279 3

And he would connect the handbrakes and pull the

pins that connect the train cars. These tasks varied in dif-

ficulty depending on the rail yard and the season.

Besides being physically demanding, this work was

also dangerous. Myers fell off a tank car in 1981 and

broke his right ankle and hurt his left knee, which

required surgery. A few years later, he stepped on a

large rock while he was getting off the train and injured

his right knee. He had surgery on that knee too. Then

in 1987, he injured his back after trying to move a four-

hundred-pound draw bar, which is a device used for

coupling a train car to the engine. As a result he

missed three to five months of work. After that, Myers

was injury-free until 1998 when he injured his knee and

shoulder trying to force a cab door open. The knee im-

proved with rest, but he had to have surgery on his

shoulder.

Naturally these injuries and the nature of this work

have taken a toll on Myers’s body. Between 2004 and

2006, he began to experience pain in his left elbow, his

right knee, and his back and neck. The problem with

his left elbow was diagnosed as a medial epicondylitis,

which is commonly called “golfer’s elbow”; his right

knee was diagnosed with osteoarthritis, which is com-

monly referred to as degenerative arthritis; and he had

several serious problems with his back, including sev-

eral herniated disks. Each problem required surgery—

two, in the case of his back.

In 2008, he sued the Railroad under the Federal Em-

ployers’ Liability Act, 45 U.S.C. § 51, claiming that the

4 No. 10-1279

Railroad’s failure to provide him with a reasonably

safe workplace caused the problems with his elbow,

knee, and back and neck. The physicians who treated

Myers for each of these injuries were listed as experts

and expected to testify at trial. Myers also expected to

call an ergonomist, Dr. Tyler Kress, who would testify

at trial about how the dangerous conditions in the Rail-

road’s yards could have caused Myers’s injuries.

Before trial, however, the district court struck the four

experts. It found that under Daubert v. Merrell Dow

Pharmaceuticals, 509 U.S. 579 (1993), none of the experts’

opinions was based on reliable procedures or methods.

It reasoned that the experts did not have an adequate

understanding of Myers’s medical history or his work

with the Railroad to give an opinion about what caused

his injuries. Concerning the ergonomist, the court found

that because his analysis of railroad conditions was not

focused on Myers’s work there, his opinion was not

reliable. After striking the experts, the district court

granted the Railroad’s motion for summary judgment,

and this appeal followed.

II.

There are two issues here. The first is whether the

district court erred by finding that Myers needed expert

testimony to establish specific causation and granting

summary judgment for the Railroad. The second is

whether the district court correctly applied Daubert

when it struck Myers’s physicians from giving expert

testimony. We review de novo the granting of summary

No. 10-1279 5

judgment. Gayton v. McCoy, 593 F.3d 610, 619 (7th Cir.

2010). And we review for an abuse of discretion the

district court’s decision to exclude the expert testimony.

Happel v. Walmart Stores, Inc., 602 F.3d 820, 824-25 (7th

Cir. 2010).

III.

The primary question on appeal is whether Myers

needs expert testimony to establish that the Railroad’s

negligence specifically caused the cumulative trauma

injuries to his knee, elbow, and back and neck. In the

district court and here, Myers argues that he merely

needs to have expert testimony establishing that the

conditions at the Railroad can cause the injuries that

Myers suffers from. In support of this, Myers planned

to call an ergonomist, Dr. Tyler Kress, to testify that

the Railroad’s practices can cause the same ailments

afflicting Myers.

The district court struck the ergonomist because he

could not tie Myers’s work and the Railroad’s practices

to Myers’s specific injuries. Myers argues that although

Kress could not testify about what specifically caused

his injuries, he could testify generally about the dangers

that come with working in the Railroad’s yards. And

from that alone, the jury could find that Myers’s in-

juries were caused by the Railroad. Thus, the issue

Myers presents on appeal is not whether the ergonomist

should have been excluded because he could not

testify about the specifics of how Myers’s work caused

6 No. 10-1279

his injury, but whether Kress’s general causation testi-

mony is sufficient to survive summary judgment.

Debate continues over the issue of how plaintiffs must

establish causation under FELA. See Norfolk Southern

Ry. Co. v. Sorrell, 549 U.S. 158, 173-175 & fn* (2007)

(Souter, J., concurring) (surveying cases); id. at 178-181

(Ginsburg, J., concurring) (same); see also McBride v. CSX

Transp., Inc., 598 F.3d 388 (7th Cir. 2010) (Ripple, J.), cert.

granted, 79 U.S.L.W. 3562 (U.S. Nov. 29, 2010) (No. 10-235).

It is an important issue and one that has come to the

forefront with the changing nature of the injuries that

railroad workers suffer. CSX Transp., Inc. v. Miller, 858

A.2d 1025 (Md. App. Ct. 2004) (surveying FELA’s develop-

ment and application to a cumulative trauma injuries);

Aparicio v. Norfolk & Western Ry. Co., 84 F.3d 803, 811

(6th Cir. 1996), abrogated on other grounds by Reeves v.

Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); see

also Melissa Sandoval Greenidge, Getting the Train on the

Right Track: A Modern Proposal for Changes to the Federal

Employers’ Liability Act, 41 McGeorge L. Rev. 407 (2010).

The Act was passed at a time when every year

thousands of railroad workers were killed and tens of

thousands were maimed, and it “was designed to put on

the railroad industry some of the cost for the legs, eyes,

arms, and lives which it consumed in its operations.”

Wilkerson v. McCarthy, 336 U.S. 53, 68 (1949) (Douglas, J.,

concurring). Although workers still get injured, the loss

of lives and limbs is fortunately and increasingly rare.

The injuries commonly reported now are cumulative

trauma injuries or disorders; they “are characterized as

‘wear and tear’ on the tissue surrounding joints, ligaments,

No. 10-1279 7

and tendons.” Gutierrez v. Excel Corp., 106 F.3d 683, 686

(5th Cir. 1997). These cover everything from Myers’s

ailments to carpal tunnel syndrome and hearing loss.

And “while CTDs are generally not caused by any one

specific traumatic event, there are certain risk factors

associated with cumulative trauma, including repeti-

tion, force, vibration, cold, and posture.” Id.; see also

Greenidge, supra at 408 & 419-21.

These injuries are still very serious and possibly compen-

sable under the Act. But “the Act did not make the em-

ployer an insurer. The liability which it imposed was

the liability for negligence.” Wilkerson, 336 U.S. at 68

(Douglas, J., concurring). That, of course, means an em-

ployee must prove that the railroad was negligent and

that the railroad’s negligence caused the injury at issue.

Claar v. Burlington N.R.R. Co., 29 F.3d 499, 503 (9th Cir.

1994). And nothing in the Act alters the accepted fact

that unless the connection between the negligence and

the injury is a kind that would be obvious to laymen,

expert testimony is required. Brooks v. Union Pacific R. Co.,

620 F.3d 896, 900 (8th Cir. 2010).

While the plaintiff is obligated to prove some degree

of negligence, the question remains whether expert testi-

mony is required in that process. Expert testimony is

unnecessary in cases where a layperson can understand

what caused the injury. See Wallace v. McGlothan, 606

F.3d 410, 420 (7th Cir. 2010). So, for example, when a

plaintiff suffers from a broken leg or a gash when hit by

a vehicle, he doesn’t need to produce expert testimony.

See Moody v. Maine Cent. R.R. Co., 823 F.2d 693, 695 (1st

8 No. 10-1279

Cir. 1987). But when there is no obvious origin to an

injury and it has “multiple potential etiologies, expert

testimony is necessary to establish causation.” Wills v.

Amerada Hess Corp., 379 F.3d 32, 46-47 (2d Cir. 2004);

accord Claar, 29 F.3d at 504 (noting “expert testimony is

necessary to establish even that small quantum of causa-

tion required by FELA”).

Here, neither Myers nor his physicians could point to a

specific injury or moment that brought on the problems

with his knee, elbow, and back and neck. Instead, Myers

claims that they are the product of years of working for

the Railroad. That type of gradual deterioration is

precisely what defines cumulative trauma injuries:

“Cumulative trauma disorder refers not to one specific

injury, but to numerous disorders caused by the perfor-

mance of repetitive work over a long period of time.”

Gutierrez, 106 F.3d at 685-86. They are simply “wear and

tear” on the body, and they can be the product of many

factors. Id.

When an injury is of this nature, determining what

caused it is not usually obvious to a layman and thus

requires expert testimony. For most cumulative trauma

injuries, courts follow the general principle that a

layman could not discern the specific cause and thus

they have required expert testimony about causation.

Brooks, 620 F.3d 896, 899-900 (expert needed for degen-

erative disk disease); Granfield v. CSX Transp., Inc., 597

F.3d 474, 484-487 (1st Cir. 2010) (expert needed for

epicondylitis); Moody, 823 F.2d at 696 (expert testimony

needed for emotional trauma); see also Greenidge, supra

No. 10-1279 9

at 423-26 (discussing cases); but see Hardyman v. Norfolk

& Western Railway, Co., 243 F.3d 255 (6th Cir. 2001) (in

dicta noting that general causation testimony is enough

to send the case to a jury for carpal tunnel syndrome).

Of course, the label cumulative trauma injuries is

broad, and in the case of hearing loss from the railroad

failing to provide a worker with ear protection, the

Second Circuit has held that no expert testimony was

necessary: “there is a generally understood causal con-

nection between physical phenomena—in this case,

very loud sounds, which we refer to colloquially as ‘deaf-

ening’—and the alleged injury [hearing loss] that ‘would

be obvious to laymen.’ ” Tufariello v. Long Island R. Co.,

458 F.3d 80, 88 (2d Cir. 2006). But that case is the excep-

tion and not the norm for whether expert testimony

establishing specific causation is necessary for cumula-

tive trauma disorders.

Here, the origin of Myers’s various injuries would not

be obvious to a layman. They can be caused by a myriad

of factors, none of which is obvious or certain. Gutierrez,

106 F.3d at 686. Thus, to tie them to his working condi-

tions at the Railroad, Myers needs expert testimony.

To be clear, the ergonomist could testify as an expert

about how dangerous the railroad yard’s conditions

were, but that does not mean he is qualified to testify

about what caused Myers’s injuries. This is a scenario

similar to what many plaintiffs face in toxic tort cases:

an expert can testify that a chemical can cause the plain-

tiff’s malady but he may not be qualified to testify that

this chemical caused this particular plaintiff’s malady.

10 No. 10-1279

Claar, 29 F.3d at 504; see Golden v. CH2M Hill Hanford

Group, Inc., 528 F.3d 681, 683 (9th Cir. 2008). “The ques-

tion we must ask is not whether an expert witness is

qualified in general, but whether his qualifications

provide a foundation for [him] to answer a specific ques-

tion.” Gayton, 593 F.3d at 617. Here, the specific question

is whether Myers’s work for the Railroad caused his

ailments. Because the ergonomist could not answer

that question, to avoid summary judgment Myers would

have to establish evidence of specific causation from

another source.

Myers planned to establish that the Railroad’s neg-

ligence caused his injuries from testimony of his three

treating physicians. Before trial, the Railroad moved to

strike the experts’ testimony as unreliable under Daubert.

Under Federal Rule of Evidence 702 and Daubert, the

district court must engage in a three-step analysis

before admitting expert testimony. It must determine

whether the witness is qualified; whether the expert’s

methodology is scientifically reliable; and whether the

testimony will “assist the trier of fact to understand the

evidence or to determine a fact in issue.” Ervin v. Johnson

& Johnson, Inc., 492 F.3d 901, 904 (7th Cir. 2007).

In this case, the district court’s analysis focused on

the physicians’ methodology, and it concluded that the

physicians’ lack of knowledge of Myers’s medical

history and duties with the Railroad rendered their

opinions unreliable under Daubert. On appeal, Myers

argues that the physicians used a “differential diagnosis”

to establish what caused his ailments, and rather than

striking the experts, any ignorance of his medical

No. 10-1279 11

history or work duties should have been explored on

cross-examination.

Differential diagnosis is an accepted and valid meth-

odology for an expert to render an opinion about the

identity of a specific ailment. Happel, 602 F.3d at 826.

When a physician makes a differential diagnosis, he

systematically compares and contrasts clinical findings

from a patient’s medical history to determine “which of

two or more diseases with similar symptoms is the

one from which the patient is suffering.” Id. at 826, n.7

(quotation omitted). The question here, however, is not

what Myers was suffering from but what caused his

ailments, and a better term to describe it is a “differential

etiology.” Tamraz v. Lincoln Elec. Co., 620 F.3d 665, 673-74

(6th Cir. 2010). Etiology is the study of causation. V The

Oxford English Dictionary 427 (2d ed. 1989). And in a

differential etiology, the doctor rules in all the potential

causes of a patient’s ailment and then by systematically

ruling out causes that would not apply to the patient,

the physician arrives at what is the likely cause of the

ailment. There is nothing controversial about that meth-

odology. Tamraz, 620 F.3d at 673-74. The question of

whether it is reliable under Daubert is made on a case-by-

case basis, focused on which potential causes should

be “ruled in” and which should be “ruled out.” Ervin,

492 F.3d at 904.

Other than Myers’s assertion that the physicians did a

differential etiology, there is nothing in the record that

suggests they did, or if it was done that it could be con-

sidered reliable, because they did not rule in any causes

12 No. 10-1279

of Myers’s ailment, nor did they rule out anything. They

simply opined that it was the Railroad’s working condi-

tions that caused Myers’s ailment. Given the nature of

Myers’s injury and his work, it seems natural to offer

such an opinion. But the law demands more than a

casual diagnosis that a doctor may offer a friend or ac-

quaintance outside the office about what could be

causing his aches and pains.

The physicians’ deposition testimonies made it clear

that they were clearly offering something less than a

causation opinion that could qualify under Daubert. On

this point, the physician who operated on Myers’s back

did not know about Myers’s earlier back injury until

after he rendered his opinion. When asked about what

role Myers’s 1987 back injury would play in his current

condition, the physician responded:

Well, I don’t really think that it makes a hell of a lot

of difference one way or the other. You put your

interest in what he has got wrong with him on the

day you treat him. Now, if you are interested in causa-

tion, then from your standpoint, it’s important.

Another physician was also candid when questioned

about the fact that he had not explored what Myers did

at work and how that affected his causation opinion:

[R]eally the thrust of my business is to find out what

his problems are and what we think can be done

about them. So, again, I’m seeing him as a medical doctor,

not as a—you know, seeing him for a work history type

charge. So, you know, my charge—I would have spent

No. 10-1279 13

more time on that. Since that was not my charge, it was

really just to get a rough idea of what things he did.

The physicians’ testimonies made it clear that they were

offering a general medical opinion about his condition

at the time of treatment and an assumption that it devel-

oped over time at the Railroad. Other than common

sense, there was no methodology to their etiology.

If a differential etiology was used and the experts were

unaware of aspects of his work or medical history, that

doesn’t necessarily mean the expert should be struck.

On this point, we have instructed that when a med-

ical expert has “relied upon a patient’s self-reported

history and that history is found to be inaccurate, district

courts usually should allow those inaccuracies in that

history to be explored through cross-examination.” Walker

v. Soo Line R.R. Co., 208 F.3d 581, 586-87 (7th Cir. 2000).

But here it’s clear that the physicians did not use a dif-

ferential etiology; they knew little to nothing about

Myers’s medical history or his work. They did not “rule

in” any potential causes or “rule out” any potential

causes. They simply treated Myers and assumed his

injuries stemmed from his work. In other words, the

basis for their opinions is properly characterized as a

hunch or an informed guess. And “the courtroom is not

the place for scientific guesswork, even of the inspired

sort.” Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 319 (7th

Cir. 1996). Thus, the district court did not abuse its dis-

cretion by excluding the testimony of Myers’s physi-

cians. And because Myers needed expert testimony to

establish causation and offered none, the district court

14 No. 10-1279

did not err in granting summary judgment for the Rail-

road. Doty v. Illinois Cent. R.R. Co., 162 F.3d 460, 463 (7th

Cir. 1998).

IV.

Therefore, the nature of the trauma injuries that Myers

accumulated required expert testimony establishing

specific causation. The district court did not abuse its

discretion by excluding the testimony of Myers’s physi-

cians, and because that was the only evidence offered

for specific causation, the district court did not err

in granting summary judgment for the Railroad. Ac-

cordingly, the judgment of the district court is A FFIRMED.

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