Petition for Writ of Certiorari — Abraham v. Union Pacific Railroad Co (No. 07-1126)

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0, O71126FEB 27 2008

No.

IN THE

Supreme Court of the United States

CLARENCE ABRAHAM, et al.,

Petitioners,

VU.

UNION PACIFIC RAILROAD COMPANY,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE FOURTEENTH COURT OF APPEALS

HOUSTON, TEXAS

PETITION FOR WRIT OF CERTIORARI

WALTER J. LACK THOMAS V. GIRARDI

RICHARD P. KINNAN

Counsel of Record

ENGSTROM, LIPSCOMB & LACK

GIRARDI & KEESE

1126 Wilshire Boulevard

Los Angeles, California 90071

10100 Santa Monica Boulevard (213) 977-2111

16" Floor

Los Angeles, California 90067

(310) 552-3800

Attorneys for Petitioners

(Additional counsel! listed on reverse side.)

Lawyers Brief Service - Appellate Brief Printers * (213) 613-1013 + (949) 720-1510

(Additional counsel)

HAROLD V. DUTTON, JR. U. LAWRENCE BOZE

LAW OFFICES OF U. LAWRENCE BOZE

HAROLD V. DUTTON & ASSOCIATES

2323 Caroline 2212 Blodgett

Houston, Texas 77004 Houston, Texas 77004

(713) 659-5998 (713) 520-0260

QUESTIONS PRESENTED

1. What is the proper standard for admissibility of

expert witness testimony in a Federal Employers’

Liability Act (“FELA”) case (in light of the Third

Circuit’s obServation that “the standard of

causation under FELA can significantly influence

a determination of the admissibility of the

expert’s testimony,” Hines v. Consolidated Rail

Corp., 926 F.2d 262, 269 (3™ Cir. 1991)).

In a FELA case, can a state court — as it did in

this case —impose a different and higher standard

for admissibility of expert witness testimony than

the admissibility standard used by Federal courts

in FELA cases (thus allowing state courts to

effectively narrow the employer’s liability in a

FELA case)?

-ii-

PARTIES TO THE PROCEEDING

AND RULE 29.6 STATEMENT

Petitioners are Clarence Abraham, et al. All of

the Petitioners’ are individuals and their full names

are listed in Appendix A to this Petition. There are

no corporations involved in this proceeding.

Respondent is Union Pacific Railroad Company.

~ili-

TABLE OF CONTENTS

QUESTION PRESENTED

PARTIES TO THE PROCEEDING

AND RULE 29.6 STATEMENT

LIST OF APPENDICES

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

FACTUAL STATEMENT

REASONS FOR GRANTING WRIT

TO ENSURE THAT COURTS DO NOT

IMPROPERLY NARROW THE EM-

PLOYER’S LIABILITY IN FELA CASES

(AS WAS DONE IN THIS CASE), THE

COURT MUST ESTABLISH THE

PROPER STANDARD FOR ADMIS-

SIBILITY FOR EXPERT WITNESS

TESTIMONY IN FELA CASES

(WHETHER FILED IN STATE OR

FEDERAL COURT)

Page

By Imposing Its Own Restrictive

Standard for Admissibility of Expert

Witness Testimony in Toxic Tort

Cases, Texas is Depriving Plaintiffs of

Their Rights Under FELA

Given FELA’s Recovery Facilitating

Thrust and Its Near Guarantee of a

Jury Trial For FELA Plaintiffs on the

Issue of Causation, This Court Should

Set a Uniform Expert Witness

Admissibility Standard for FELA

Cases by Adopting the Weight-of-the-

Evidence Methodology

1. Plaintiffs are Entitled to a Jury

Trial Under the Applicable FELA

Standard of Causation

The Weight-of-the-Evidence

Methodology is Appropriate for

FELA Cases

Plaintiffs’ Expert Performed a

Reliable Weight-of-the-Evidence

Analysis Sufficient to Allow the

Issue of Medical Causation to be

Decided by the Jury

CONCLUSION

CERTIFICATE OF COMPLIANCE

-V-

LIST OF APPENDICES

APPENDIX A

List of Petitioners

APPENDIX B

Fourteenth Court of Appeals

Opinion, Filed June 28, 2007 ....

APPENDIX C

Fourteenth Court of Appeals

Overruling of Motion for En Banc

Rehearing, Filed June 28, 2007

APPENDIX D

Supreme Court of Texas Order

Denying Petition for Review,

Filed November 30, 2007

APPENDIX E

45 U'S.C.A. § 51

APPENDIX F

District Court if Harris County, Texas

Order Granting Motion for Summary

Judgment, Dated April 7, 2006

-vi-

TABLE OF AUTHORITIES

Federal Cases

Aparicio v. Norfolk & D.Ry Co.,

84 F.3d 803 (6th Cir. 1996)

Atlantic & Gulf Stevedors, Inc. v.

Ellerman Lines, 369 U.S. 355 (1962)

Bednar v. Bassett Furniture Mfg. Co.,

147 F.3d 737 (8th Cir. 1998)

Boeing Co. v. Shipman,

411 F.2d 365 (5th Cir. 1969)

Bonner v. ISP Technologies, Inc.,

259 F.3d 924 (8th Cir. 2001)

Curtis v. M&S Petroleum, Inc.,

174 F.3d 661 (5th Cir. 1999)

Daubert v. Merrell Dow Pharmaceuticals, Inc.,

509 U.S. 579 (1993) 10, 16, 23, 25, 37

Derienzo v. Metro Transportation Authority,

404 F. Supp 555 (S.D.N.Y. 2005)

Dice v. Akron Railroad Co.,

342 U.S. 359 (1952)

General Electric Co. v. Joiner,

522 U.S. 136 (1997)

Green v. River Terminal Ry Co.,

763 F.2d 805 (6th Cir. 1985)

Heller v. Shaw Industries,

167 F.3d 146 (3™ Cir. 1999)

Hines v. Consolidated Rail Corp.,

926 F.2d 262 (3rd Cir. 1991)

In Re Conrail Toxic Tort FELA Litigation,

1998 U.S. Dist. Lexis 12037,

1998 Westlaw 465897

(W.D. Penn. August 4, 1998)

Magistrini v. One Hour Dry Cleaning,

180 F.Supp.2d 584 (U.S.D.C. N.J. 2002) ..

Norfolk & Western Railway Company v. Ayers,

538 U.S. 135 (2003)

Pehowic vs Erie Lackawanna RR Co.,

430 F.2d 697 (3° Cir 1970)

Richards v. Consolidated Rail Corporation,

330 F.3d 428 (6th Cir. 2003)

Rogers v. Missouri Pacific Railroad Co.,

352 U.S. 500 (1957)

Savage v. Union Pacific Railroad Company,

67 F.Supp.2d 1021 (E.Dist. Ark. 1999)

Tufarielo v. Long Island Railroad Company,

458 F.3d 80 (2d Dist. New York 2006)

Westberry v. GGAB,

178 F.3d 257 (4™ Cir. 1999)

Westberry v. Gislaved,

178 F.3d 257 (4™ Cir. 1999)

State Cases

Abraham v. Union Pacific Railroad Company,

233 S.W.3d 13 (2007) — .. 2,10,11, 14

Austin v. Kerr McGee Refining Corp..,

29 S.W.3d 280 (Tex.App. 2000)

Dutton v. Southern Pacific Transportation

Company, 56 S.W.2d 782 (1978)

Kansas City Southern Ratlway Corp. v. Stokes,

20 S.W.3d 45 (2000)

Frias vs. Atl. Richfield Co..,

104 S.W.3d 925 (Tex-App Houston 2003) . 37

Merrell Dow Pharms. v. Havner,.

953 S.W.2d 706 (Tex. 1997) .. 2.8.11, 15,19

Missouri Pacific Railroad Co. v. Navarro,

90 S.W.3rd 747 (2002)

Federal Statutes

28 U.S.C. § 1257

Federal Employers’ Liability Act (FELA)

45 U.S.C. §§ 51-60 ..

Federal Rules

Federal Rule of Evidence

Rule702

OPINIONS BELOW

The opinion of the Fourteenth Court of Appeal,

295" District Court of Harris County, Texas, is

reported at 233 S.W. 3™ 13, dated June 28, 2007.

(Appendix B). Petitioners’ Motion for En Banc

Rehearing was denied/overruled on August 23, 2007.

(Appendix C). The Texas Supreme Court’s order

denying review is unreported, No. 07-0810 (dated

November 30, 2007). (Appendix D).

JURISDICTION

The Texas Court of Appeals decision in this case

was issued June 28, 2007. Petitioners’ motion for En

Banc Rehearing was denied/overruled August 23,

2007. The Texas Supreme Court denied review of the

case on November 30, 2007.

“Final judgments .. . rendered by the

highest court of a State ... may be reviewed

by the Supreme Court by writ of certiorari...

where any ... right [or] privilege .. . is

speciaily set up or claimed under the .. .

statutes of... the United States.” 28 U.S.C.

§ 1257.

Where (as here) the state appellate court’s

judgment wrongfully deprives the parties — 300

railroad worker plaintiffs/petitioners — of their federal

statutory right under FELA to a jury trial on the

issue of medical causation by applying the wrong

standard of admissibility to plaintiffs’ medical

causation evidence — an admissibility standard

which directly conflicts with the FELA — the Court

has jurisdiction to grant certiorari and hear and

decide the case.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Federal Employers’ Liability Act (FELA), 35

STAT. 65, as amended, 45 U.S.C. §§ 51-60, makes

common carrier railroads liable in damages to

employees who suffer work-related injuries caused “in

whole or in part” by the railroad’s negligence.

“Enacted in 1908, Congress designed the FELA to

‘shift part of the ‘human overhead’ of doing business

from employees to their employers’. Gottshal, 512

U.S. at 542... .” Norfolk & Western Railway

Company v. Ayers, 538 U.S. 135, 145 (2003).

“Reining in employer liability [as was done here by

raising the bar for the admissibility of expert witness

testimony in FELA cases] . . . is inconsistent with the

Act’s overall recovery facilitating thrust .. . [and]

runs counter to a century of FELA jurisprudence.”

(Text of FELA statute set out at Appendix E).

In this FELA case, the Texas Court of Appeal

measured the reliability and legal sufficiency of

plaintiffs’ expert testimony under the exceedingly

strict expert witness testimony admissibility

standard set forth by the Texas Supreme Court in

Merrell Dow Pharms. v. Havner, 953 S.W.2d 706

(Tex. 1997), and its progeny. See, Abraham v. Union

Pacific Railroad Company, 233 S.W.3d 13, 17, 19-20

(2007). (Appendix B-3, B-8, B-10) Hauner requires,

for example, that the medical expert rule out with

reasonable certainty all other potential causes of

plaintiffs illness before causation can be reliability

established -— a requirement which is directly

contrary to the FELArule that liability attaches even

where defendant’s conduct was only partially

responsible (along with other causes) for the claimed

illness.

As this Court stated in Norfolk, supra, 538 U.S. at

161-162,

“liln Rogers |v. Missouri Pacific

Railroad Company, 352 U.S. 500

(1957)], we described as ‘irrelevant’ the

question ‘whether the immediate

reason’ for the employee’s injury was...

‘some cause not identified from the

evidence. ... “The inquiry in these

cases today rarely presents more than

the single question whether negligence

of the employer played any part,

however smail, in the injury or death

which is the subject of the suit.”

(Emphasis added).

FELA, of course, preempts Texas law: “[T]he

preemption doctrine flows from the Constitution’s

Supremacy Clause, United States Constitution,

Article VI, Clause 2, which ‘invalidates state laws

that interfere with, or are contrary to, federal law.”

Tufarielo v. Long Island Railroad Company, 458 F.3d

80, 86 (2d Dist. New York 2006). Texas courts have

expressly acknowledged that “no state procedure or

rule can interfere with or diminish the rights under

FELA.” Kansas City Southern Railway Corp. v.

Stokes, 20 S.W.3d 45, 48 (2000), citing Dutton v.

Southern Pacific Transportation Company, 576 S.W.

2d at 783-784 (“substantive rights governed by the

FELA cannot be interfered with, lessened or

destroyed by a state rule of practice or procedure.”).

FACTUAL STATEMENT

This is a Federal Employers’ Liability Act (FELA)

toxic tort personal injury action for damages brought

by 295 Union Pacific Railroad Company workers who

were exposed to toxic creosote in the workplace

(principally at the Railroad’s creosote wood treatment

plant in Houston, Texas). It is undisputed that

creosote has been declared a probable human

carcinogen by the International Agency for Research

on Cancer (IARC), the United States Department of

Health, and, the United States Environmental

Protection Agency. (CR 477, 481). Creosote also

causes skin and breathing problems. (CR 1181).

After many years of litigation, the Trial Court set

for trial the case of one test plaintiff, Mr. Leslie

Duncan, who, after working for defendant Railroad at

its creosote wood treatment plant in Houston, Texas,

for fifteen years from 1969 to 1985, died of throat

cancer in 2002 at age 78. On the first day of trial the

Trial Court heard argument on defendant’s Motion

for Summary Judgment made on the grounds that

plaintiff Leslie Duncan presented insufficient medical

causation evidence connecting his cancer to his

creosote exposure at defendant’s wood treatment

plant. (RT and CR Motion:84-175, Opposition:212-

667). Defendant later expanded its medical causation

motion for summary judgment to include all plain-

tiffs. (CR Motion:691-835, Opposition: 1535-1582).

In Opposition to the summary judgment motions,

plaintiffs proffered expert witness testimony — in the

form of verified affidavits — from a qualified medical

doctor with thirty years experience in occupational

and environmental toxicology, who opined that

plaintiffs’ cancers and other claimed illnesses were

caused, at least in part, by their chronic exposure to

creosote in the workplace. (CR 648-667, 836-1395).

The expert’s opinions were based upon exposure

evidence, which included interrogatory testimony

from each plaintiff concerning their job duties and

creosote exposure experience while working for

defendant Railroad, as well as deposition testimony

from fellow workers and witnesses concerning their

observations of regular exposure to creosote while

working at the plant. (CR 836, 844-845, 648, 661,

564-565, and, 1402-1441). The exposure evidence

also included an exposure study commissioned by the

United States Environmental Protection Agency,

where the National Creosote Council studied four

representative creosote wood treatment plants and

published its findings in a 2001 report entitled,

“Final Report: Assessment of Potential Creosote

Inhalation and Dermal Exposure Associated with

Pressure-Treatment of Wood With Creosote” (CR 516-

536). The Creosote Council report calculated and

reported the typical worker exposure levels to

creosote vapors and liquid at treatment plants

(broken down by job categories at the wood treatment

facilities). Plaintiffs’ medical causation expert relied

upon this report in forming his causation opinions.

(CR 845).

Plaintiffs’ expert also relied upon plaintiffs’

medical histories, including family history of

disease, and social history such as smoking and

drinking. (CR 844-845). Lastly, plaintiffs expert

relied upon a large body of medical and scientific

evidence demonstrating that exposure to creosote

can cause certain medical problems, including cancer,

breathing problems, and skin disease. (CR 846-864).

Defendant’s own internal documents, for example,

admit that workers exposed to creosote are at risk of

developing cancer. (See, defendant’s March 16, 1981,

internal report which states that the creosote used by

the railroad at its Houston wood treatment facility

contained cancer-causing compounds, which report

concluded that “(the Company] is vulnerable to

litigation concerning alleged adverse health effects

... to employees .. . due to uncontrolled emissions

. . of suspected carcinogenic substances.” (CR 903-

904); see also, report from the Railroad’s Certified

Industrial Hygienist stating that “[clreosote is a

distillate fraction from coal tar... [and] [i]t is known

that they contain some of the . . . compounds of

occupational concern for latent health defects, such as

skin, lung, or bladder carcinomas. ... Creosote is

commonly handled and controlled occupationally

similar to coal tar since the health effects as . .

potential carcinogen with routine, prolonged contact

or inhalation are the same. ... [I]t is prudent to

avoid skin contact and inhalation of volatiles

whenever possible.” (CR 907-909).

In their Material Safety Data Sheets, the

manufacturers of creosote state that “[p]rolonged

exposure can lead to... lung disease (bronchitis) or

asthma,” (CR 1181), and, “Chronic Overexposure...

May Cause Cancer.” (CR 1188).

After commissioning the exposure study by the

Creosote Council for Wood Treatment Plants, the US

EPA issued a report stating that “creosote acts most

effectively as a [cancer] promoter but also functions

as a complete carcinogen,” and that “cancer risks for

all post-application occupational scenarios exceed the

level of concern. ... [T]he epidemiological studies on

the effects of creosote exposure [show] increased risks

for the development of a number of diseases .. .

lincluding} skin cancer and non-alignant skin

disorders, bladder cancer, lung cancer, and

nonmalignant respiratory disease.” (CR 1147). Inits

publication Criteria for Recommended Standard, the

United States Department of Health, National

Institute of Safety & Health (NIOSH), states that

“from the epidemiological and experimental

toxicological evidence on coal tar, coal tar pitch and

creosote, NIOSH has concluded that they are

carcinogenic and can increase the risk of lung and

skin cancer in workers.” (CR 974-975). In a 1992

epidemiological health study of creosote wood

treatment workers (which was published in a peer

review journal, Scandinavian Journal of Worker and

Environmental Health), Dr. Karlehagen and his

colleagues studied 922 creosote wood treatment

workers at thirteen coal tar creosote wood treatment

plants in Sweden and Norway. The authors

concluded that “[a] doubled risk for skin cancer was

. observed and this increase could probably be

attributed to the combination of exposure to creosote

and sunlight.” (CR 1213-1216). Some of the plaintiffs

in this case have skin cancer. (See, CR 876-901).

In its summary judgment motions, defendant

argued that under Hauner, supra, 953 S.W. 2d 706,

and its progeny:

“(Plaintiff‘s expert] Dahlgren fails to

negate other plausible factors and

causes of plaintiff Duncan’s injuries.

Dahlgern’s specific causation opinions

do not adequately exclude confounding

factors as required by Hauner. The

plaintiffs must negate, with proof rising

to reasonable certainty, all other

plausible causes of their injuries. .

Havner .. . at 718. *** [(U]nder Havner,

if there are other plausible causes of the

condition, they must be negated. In

other words, Dahlgren must exclude

those causes with reasonable certainty.

Havner at 720.” (CR 108, 728).

Plaintiffs, of course, argued that this Havner

requirement directly conflicts with the FELA rule

allowing for liability where defendant’s negligence

was only a contributing cause of the injury, and

argued that Hauvner must not be applied in a FELA

case. (CR 247, 1543, 1563).

At the hearing of defendant’s summary judgment

motion, defendant again argued Hauner: “If there are

other plausible causes of the injury or condition that

could be negated, the plaintiff must offer evidence

excluding those causes with reasonable certainty.”

(RT 71:21-25, 72:1-17). The Trial Court’s response to

this argument was as follows:

“That’s where we have the huge

distinction between the two of you

[plaintiffs’ and defense counselJ. For

example, lung cancer. It is your opinion

[plaintiffs] that it is enough for your

doctor say the chemicals, — the creosote

was a cause of his lung cancer and he

does not have to say the smoking was

not the cause.” (RT 74:9-25, 75:1-6).

In connection with its summary judgment

motions, defendant also argued that, under Hauner

(and its progeny), plaintiffs “must prove that they

were exposed to the same [quantitative] level or

greater of the same substance as those studied... .

Dahlgren’s unreliable [unquantified] exposure data

violates Havner and its progeny. ... There is no

evidence that the plaintiffs had similar exposures to

those who were studied. *** Dahligren’s causation

opinions are legally insufficient because he has no

evidence of exposure levels or dose.” (CR 100, 706).

At the hearing on the initial motion for summary

judgment, the Trial Court stated that plaintiffs

cannot meet their burden of proof without presenting

specific levels of exposure in both the studies relied

upon and for each plaintiffs actual exposure. (RT

59).

In the end, the Trial Court granted defendant’s

motions for summary judgment. (Appendix F and CR

1583). In the Appellate Court opinion affirming the

Trial Court’s dismissal judgment, the Appellate Court

stated, “Appellants contend that the trial court

improperly applied Hauner to require a higher level

of specific scientific proof than is required in FELA

cases.... [T]he accepted distinction between burden

of proof and admissibility of evidence defeats

appellants’ argument that we are improperly

applying Havner. *** Therefore, if the expert

testimony is unreliable under Havner .. ., it is no

evidence, ‘not even a feather’s weight.” Abraham,

supra, 233 S.W. 3d at 19-20. (Appendix B-8, B-9, B-

10) The Havner admis-sibility requirements are

incon-sistent with both the FELA and the federal

admissibility standard set forth in Daubert v. Merrell

Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

The Texas Appellate Court held plaintiffs to an

improperly high standard of proof in terms of

exposure evidence sufficient to support a medical

doctor’s finding of causation. The Appellate Court

stated that “the plaintiff must demonstrate the levels

of exposure hazardous to human beings generally as

well as plaintiffs actual level of exposure. Austin v.

Kerr McGee Refining Corp., 25S.W.3d 280 (Tex.App.

2000).” Abraham, 233 S.W. 2d at 21. (Appendix B-12)

The Appellate Court stated that “appellants have not

produced reliable evidence that they were exposed to

those levels of creosote [found to be hazardous by the

EPA in its exposure study of several typical creosote

wood treatment plants].... [A]ppellants produced no

evidence from which the trial court could determine

whether appellants were exposed to similar levels of

creosote that led the EPA to find an increased risk of

disease.” Id. at 22. (Appendix B-16) (As discussed

below, plaintiff did produce evidence of the similarity

between plaintiffs’ creosote exposure and the creosote

exposure by those studied by the EPA.)

Under the Havner standard of admissibility, the

Appellate Court unreasonably rejected as unreliable

Dr. Dahlgren’s undisputed reliance upon plaintiffs’

interrogatory responses and depositions describing

their job duties and their regular daily exposure to

creosote on the skin and by breathing the creosote

vapors while working with the freshly treated wood

ties. It is undisputed that Dr. Dahlgren relied upon

plaintiffs’ interrogatories and the depositions

describing their job duties and creosote exposure.

(CR 836, 844-845, 648, 661, 564-565, and, 1402-

1441). From this evidence, for example, Dr. Dahigren

prepared an employment and exposure summary

report for plaintiff Leslie Duncan:

“Leslie Duncan - Employment and

Exposure Summary

Worked for Southern Pacific from 1969-

89 at 4910 Liberty Road Creosote

Facility, unloading and stacking hot

newly treated ties, cleaning the

treatment cylinders, loading treated ties

on the flat bed train cars; operated a

forklift; worked eight hours, five days a

week with occasional overtime; ... 1969

to 1984 loading freshly treated railroad

crossties on trains at creosote wood

treatment plant near the treatment

cylinders; spent majority of his tirne at

the Houston Creosote Plant; regularly

breathed creosote fumes and got

creosote on his body performing his job

at the plant.

* &

According to deposition of Mary Louis

Duncan, spouse of deceased, dated

7/17/02: ‘When my husband came home

in the evenings after work, he would be

covered head to toe by creosote.”

(Clerk’s Record, 558,561 and 564-565).’

From this evidence, Dr. Dahlgren could reliably

categorize Mr. Duncan according to the various EPA-

described treatment plant job categories associated

‘Although plaintiffs were prepared to have

Dr. Dahlgren prepare complete reports on each trial

plaintiff selected by the court (as was done for the initial

trial plaintiff Leslie Duncan), no such reports were done

as the court made it clear that it intended to grant no-

evidence motions for summary judgment as to all

remaining plaintiffs given that the supporting evidence

for each such additional plaintiff was likely to be

essentially the same as the evidence proffered in

opposition to the initial motion regarding Leslie Duncan.

The trial court did not suggest that it needed more worker

exposure data to deny the no-evidence motions. In fact,

plaintiff Leslie Duncan was chosen as the lead trial

plaintiff because his work exposure to the creosote ranked

among the highest of the workers, and his injury (death

by cancer) the most severe.

with hazardous levels of creosote exposure. The

EPA/Creosote Council Exposure Study Report

identifies “post-application occupational exposure” to

“handlers” working in various capacities as “cylinder

area loader, cylinder area helper, . . . load-out area

loader, load-out loader helper, or, load-out area

forklift operator....” (Clerk’s Record, 1030).

Mr. Duncan’s exposure was clearly that of a “handler”

as he spent fifteen years, five days a week at

defendant’s plant “loading freshly treated railroad

crossties on trains at the wood treatment plant near

the treatment cylinders... .” (Clerk’s Record, 565).

Mr. Duncan was a load-out operator (LO). Plaintiffs’

trial witnesses included men who worked closely with

Mr. Duncan at the treatment plant, who were

prepared to (and did in pre-trial depositions taken by

the Railroad) testify to Mr. Duncan’s daily exposure

to the fumes and liquid creosote.

Dr. Dahlgren also had plaintiffs’ interrogatories

which described each worker’s creosote exposure

experience while working for defendant Railroad.

Plaintiffs’ interrogatory responses discuss in detail

the plaintiffs’ job duties and creosote exposure. (CR

1402-1441). In his interrogatory responses, for

example, employee Lloyd Busby states, “I worked for

Southern Pacific from 1973 to 1992. From 1976 to

1980 I worked at the Englewood Yard and would

travel to [the] 4910 Liberty Road creosote facility

every day to pick up newly treated wood ties. From

1980 to 1985 I worked as a machine operator loading

creosote treat{ed] ties onto trucks at 4910 Liberty

Road creosote facility. From 1985 to 1987 I worked at

the Liberty Road creosote facility handling treated

ties while I put tracks together. I would get creosote

material all on my skin and clothes .. . [t}]hroughout

my employment with Southern Pacific.... I would

get the wood treatment material on my skin on a

regular basis while I worked, and also breathed the

fumes from the creosote wood treatment materials.”

(Clerk’s Record 1420-1422).

Federal authority specifically recognizes that

precise information concerning the exposure

necessary to cause a specific harm to humans and

exact details pertaining to the plaintiffs exposure

levels are not always available, nor are they

necessary, so long as there is reliable evidence of a

substantial exposure to the hazardous chemical.

Westberry v. Gislaved, 178 F.3d 257, 264 (4™ Cir.

1999), and, Heller v. Shaw Industries, 167 F.3d 146,

157 (3 Cir. 1999). Plaintiffs argued this exposure

evidence standard both in the trial and appellate

courts. (CR 246, 257, RT 61, Abraham, 233 S.W. 3d

at 23) (Appendix B-17).

An Opinion by this Court is necessary to clarify

the expert witness admissibility standard in FELA

cases.

REASONS FOR GRANTING WRIT

TO ENSURE THAT COURTS DO NOT

IMPROPERLY NARROW THE EMPLOYER’S

LIABILITY IN FELA CASES (AS WAS DONE

IN THIS CASE), THE COURT MUST

ESTABLISH THE PROPER STANDARD FOR

ADMISSIBILITY FOR EXPERT WITNESS

TESTIMONY IN FELA CASES (WHETHER

FILED IN STATE OR FEDERAL COURT)

A. By Imposing Its Own Restrictive Stan-

dard for Admissibility of Expert Witness

Testimony in Toxic Tort Cases, Texas is

Depriving Plaintiffs of Their Rights

Under FELA

The expert witness testimony admissibility

standard used by the Texas Appellate Court directly

conflicts with the FELA. The Havner standard used

by the Texas Appellate Court requires that to be

admissible a doctor’s medical causation opinion must

rule out with reasonable certainty all other potential

causes of plaintiffs’ disease (leaving defendant’s

negligent conduct as the only cause). FELA,

however, requires only that defendant’s negligence be

a contributing cause of plaintiffs condition (even if

only a slight contributing cause).

The Hauner standard used by the Texas Appellate

Court also requires that a plaintiff in a toxic tort case

submit quantitative levels of exposure harmful to

humans generally, and specific quantitative levels

experienced by the plaintiff which are equal to or

greater than the numbers found to be harmful to

humans generally. This admissibility requirement of

quantitative exposure levels runs counter to the

FELA’s broad liability for employers, and is not part

of the Daubert admissibility requirements. In fact,

federal cases make it clear that quantitative levels of

exposure are not necessary to prove causation in toxic

tort cases. In Westberry v. GGAB, 178 F.3d 257 (4

Cir. 1999), the Court held that exposure levels need

not be quantified to demonstrate that a substance is

toxic to humans given substantial exposure. The

following passage from Westberry is instructive:

“Westberry testified that he was

exposed to very high levels of airborne

talc through the workday. According to

his testimony, when he removed the

gaskets from the box in which they had

been shipped, the gaskets, which were

black, had so much talc on them that

they appeared to be white or gray. And,

talc was released into the air as the

gaskets went through the cutting

machine. Westberry testified that the

talc that settled from the air around his

work area was so thick that one can see

footprints in it on the floor. He further

testified that he worked in clouds of talc

and that it covered him and his clothes.

... This testimony concerning the level

of airborne talc was adequate to permit

a fact finder to conclude that Westberry

was exposed to high concentrations of

airborne talc....” Westberry, 178 F.3d

at 264.

The Westberry court stated that “only rarely are

humans exposed to chemicals in a manner that

permits a quantitative determination of adverse

outcomes. Human exposure occurs most frequently

in occupational settings where workers are exposed

to industrial chemicals .. . ; however, even under

these circumstances, it is usually difficult, if not

impossible, to quantify the amount of exposure.”

(Citing the Federal Reference Manual on Scientific

Evidence, 187 (1994)). The Westberry court also cited

Heller v. Shaw Industries, 167 F.3d 146, 157, (3" Cir.

1999), for the proposition that “even absent hard

evidence of the level of exposure to the chemical in

question, a medical expert could offer an opinion that

the chemical caused plaintiffs illness.” Westberry at

264. In this case, plaintiffs will testify to the fact that

they got substantial amounts of the creosote on their

clothes and skin throughout the work day, and that

they breathed the creosote vapors all day long.

In Bonner v. ISP Technologies, Inc. , 259 F.3d 924,

928 (8 Cir. 2001), the court stated that “Bonner did

not need to produce a mathematically precise table

equating levels of exposure with levels of harm in

order to show that she was exposed to a toxic level of

{the chemical], but only evidence from which a

reasonable person could conclude that her exposure

probably caused her injuries. Bednar v. Bassett

Furniture Mfg. Co., 147 F.3d 737, 740 (8 Cir. 1998)

(quoting Wright, 91 F.3d at 1107).”

The National Institute of Occupational Safety and

Health has concluded Cin its official Department of

Health publication on coal tar products, including

creosote) that “no absolutely safe [exposure]

concentration can be established for a carcinogen

[such as creosote]... ..” (See, CR 975, Exhibit 10, p.

2 to Dahlgren Affidavit). In this case, Dr. Dahlgren

had sufficient information concerning the extent of

plaintiffs’ chronic exposure to the creosote to allow

him to render scientifically valid conclusions

concerning the cause of plaintiffs’ claimed illnesses,

particularly in light of the fact that there is no safe

dose of a carcinogen.

B. Given FELA’s Recovery Facilitating

Thrust and Its Near Guarantee of a

Jury Trial For FELA Plaintiffs on the

Issue of Causation, This Court Should

Set a Uniform Expert Witness Admis-

sibility Standard for FELA Cases by

Adopting the Weight-of-the-Evidence

Methodology

1. Plaintiffs are Entitled to a Jury

Trial Under the Applicable FELA

Standard of Causation

A FELA plaintiff is essentially guaranteed a jury

trial on the issue of causation. As stated by the court

in Pehowic us Erie Lackawanna RR Co., 430 F.2d

697, 699-700 (Third Cir 1970), “[a] review of the

decisions of the [United States] Supreme Court with

reference to the integrity of the jury’s function in

these [FELA] cases .. . teaches that a trial court is

justified in withdrawing . . . issues from the jury’s

consideration only in those extremely rare instances

where there is a zero probability either of employer

negligence or that any such negligence contributed to

the injury of an employee.” (See also, Hines uv.

Consolidated Rail Corp., 926 F.2d 262 (3™ Cir. 1991),

which cited the Pehowic “zero probability” test with

approval.)

The United States Supreme Court announced a

relaxed test for establishing causation in FELA cases

in its landmark decision, Rogers v. Missouri Pacific

Railroad Co., 352 U.S. 500 (1957). The Rogers’ Court

set forth the following test to determine whether

there is a jury question on the issue of causation:

“Under this statute the test of a jury

case is simply whether the proofs justify

with reason the conclusion’ that

employer negligence played any part,

even the slightest, in producing the

injury or death for which damages are

sought. It does not matter that, from the

evidence, the jury may also with reason,

on grounds of probability, attribute the

result to other causes....” Rogers, 352

* The Havner requirement that in toxic tort cases

plaintiffs’ medical causation expert must rule out all other

causes of plaintiffs’ diseases is thus directly contrary to

federal law. Texas courts have expressly acknowledged

that “no state procedure or rule can interfere or diminish

the rights that are given under FELA.” Kansas City

Southern Railway Company v. Stokes, 20 S.W.3d 45, 48

U.S. at 506-507 (emphasis added).

The recent federal court case of Richards v.

Consolidated Rail Corporation, 330 F.3d 428, 434 (6

Cir. 2003), explained the FELA causation standard as

follows:

“Under this [Rogers] standard, the role

of the jury is significantly greater in

FELA cases than in common law

negligence actions. ... Rogers requires

a plaintiff alleging a FELA violation to

offer ‘more than a scintilla of evidence

in order to create a jury question on the

issue of employer liability, but not much

more.’ Aparicio v. Norfolk & D.Ry Co.,

84 F.3d 803, 810 (6 Cir. 1996). ... The

Rogers Court adopted this relaxed

standard in order to _ effectuate

Congress’ intent .. . ‘to preserve the

plaintiffs right to a jury trial.’ Green v.

River Terminal Ry Co., 763 F.2d 805,

806 (6 Cir. 1985)... . [T]he Rogers

court found that the Congress vested

the power of decision in these [FELA]

actions exclusively in the jury in all but

the infrequent cases where fair-minded

jurors cannot honestly differ.’ [Rogers]

at 510.”

(2000), citing Dutton v. Southern Pacific Transportation

Company, 576 S.W.2d at 783-784 (“substantive rights

governed by the FELA cannot be interfered with, lessened

or destroyed by a state rule of practice or procedure.”)

As the United States Supreme Court stated in

Dice v. Akron Railroad Co., 342 U.S. 359, 363 (1952),

“[t]he right to trial by jury . . . is part and parcel of

the remedy afforded railroad workers under the

Act. ... To deprive railroad workers of the benefit of

a jury trial where there is evidence to support

negligence is to take away a goodly portion of the

relief which Congress has afforded them.”

In Hines v. Consolidated Rail Corporation, 926

F.2d 262, 268 (3™ Cir. 1991), the court stated that “a

FELA plaintiff need only present a minimal amount

of evidence in order to defeat a summary judgment

motion.” Importantly, the Hines court also stated

that “the standard under FELA can significantly

influence a determination of the admissibility of [Dr.]

Shubin’s [medical causation] testimony. By enacting

FELA, Congress desired to ‘secure jury determina-

tions in a larger proportion of cases than would be

true of ordinary common law actions.’ Boeing Co. v.

Shipman, 411 F.2d 365, 371 (5™ Cir. 1969). Indeed,

jury determinations were intended to be part of the

FELA remedy. Atlantic & Gulf Stevedors, Inc. v.

Ellerman Lines, 369 U.S. 355, 360 (1962).” Hines at

269. In refusing to let stand the district court’s pre-

trial exclusion of plaintiffs’ medical causation expert

(Dr. Shubin), the Hines court stated that “[e]ven more

significant [regarding the admissibility of

Dr. Shubin’s medical causation testimony] is the

more lenient FELA standard for causation.” Hines

at 271. The Hines court concluded its discussion by

stating that “[o]ur liberal standard of causation under

FELA bolsters our conclusion that there could be

sufficient evidence in this case to survive a Summary

judgment.” Hines at 276. Citing and discussing the

Hines opinion, in her concurring opinion in Missouri

Pacific Railroad Co. v. Navarro, 90 S.W.3rd 747, 759-

760 (2002), Justice Lopez expressly recognized the

need for Texas jurisprudence to “embrace the

distinction between a state court claim and a FELA

claim” when ruling on motions to exclude expert

medical causation testimony.

The Texas Supreme Court has, in fact, recognized

the general distinction between a plaintiffs common

law burden of causation and the causation burden in

a FELA case:

“In cases of this nature the federal law

gives the plaintiff and other railroad

workers the right to have causation of

their injuries determined by the simple

test of whether they resulted ‘in whole

or in part’ from the _ railroad’s

negligence.... This is entirely different

and much less burdensome than the

usual proximate cause test which is

applied to common law negligence

cases.... Causation under the F.E.L.A.

does not place a burden on the plaintiff

to show foreseeability or cause in fact

‘unbroken by any new independent

cause’....” Dutton v. Southern Pacific

Transportation Company, 56 S.W.2d

782, 784-785 (1978).

The court in Savage v. Union Pacific Railroad

Company, 67 F.Supp.2d 1021, 1027 (E.Dist. Ark.

1999), stated that “under FELA, the plaintiff carries

only a slight burden on causation.” The Savage court

further stated that “a plaintiff... bears the burden

of presenting evidence from which a jury could

conclude a ... ‘likely causal relationship as opposed

to merely a ‘possible’ one.” Jd. The Court observed in

Savage v. Union Pacific Railroad Company, 67

F.Supp. 1021, 1027 (E.D. Ark. 1999), that “it is not

difficult to see the tension between the Daubert

standard for admissibility of expert testimony and

the FELA standard on causation for submission of a

case to a jury.”

In the case of In Re Conrail Toxic Tort FELA

Litigation, 1998 U.S. Dist. Lexis 12037, 1998

Westlaw 465897 (W.D. Penn. August 4, 1998), the

court stated as follows:

“To recapitulate, then, as long as plain-

tiffs expert presents scientifically

reliable evidence that the toxic exposure

could have played some role, however

small, in causing plaintiffs injuries, the

testimony should be admitted under the

lower FELA standard set forth in Hines

[v. Consolidated Rail Corp., 926 F.2d

262 (3™ Cir. 1991) (‘a medical expert can

testify that there was more than one

potential cause of plaintiffs condition

... [and] the standard under FELA can

significantly influence a determination

of the admissibility of [expert medical]

testimony.’). Hines at pp. 264-265, 266,

and 267.].” In Re Conrail toxic Tort

FELA Litigation at p. 19.

In this case plaintiffs have presented reliable

expert evidence that the claimed illnesses were

caused at least in part by their chronic exposure to

the toxic creosote material. The ultimate decision on

the issue of causation should have been left to the

jury. Notwithstanding the established rule that

“FELA claims should not be dismissed on summary

judgment unless there is absolutely no reasonable

basis for a jury to find for plaintiff,” Derienzo v. Metro

Transportation Authority, 404 F. Supp 555, 565

(S.D.N.Y. 2005), the trial court granted defendant’s

motion for summary judgment on the issue of medical

causation. Summary judgment should have been

denied in this FELA case.

2, The Weight-of-the-Evidence

Methodology is Appropriate for

FELA Cases

Concerning whether coal tar creosote exposure

can cause certain human diseases or illnesses, Dr.

Dahlgren reasonably relied upon several lines of

reliable scientific evidence. Addressing the issue of a

“weight-of-the-evidence” methodology in medical

causation cases, United States Supreme Court

Justice John Paul Stevens wrote in his concurring

and dissenting opinion in General Electric Co. v.

Joiner, 522 U.S. 136, 153-155 (1997), that:

“[iJt is not intrinsically ‘unscientific’ for

experienced professionals to arrive at a

conclusion by weighing all available

scientific evidence — this is not the sort

of ‘junk science’ with which Daubert was

concerned... . [T]he reliability inquiry

must focus on methodology, not conclu-

sions. ... Daubert quite clearly forbids

trial judges from assessing the validity

or strength of an expert’s scientific

conclusions, which is a matter for the

jury. ... [NJothing in either Daubert or

the Federal Rules of Evidence requires

a district judge to reject an expert’s

conclusions and keep them from the

jury when they fit the facts of the case

and are based on reliable scientific

methodology.”

The Joiner Court did not criticize or otherwise

invalidate the “weight-of-the-evidence” methodology

as it relates to expert testimony on the issue of

medical causation in toxic tort cases. In Magistrini v.

One Hour Dry Cleaning, 180 F.Supp.2d 584, 502

(U.S.D.C. N.J. 2002), the federal court stated that

“flexible application of the Daubert factors permits

this Court to find that, properly applied, the “weight-

of-the-evidence” methodology is not an unreliable

methodology. ...” The Magistrini court found that a

“weight-of-the-evidence” methodology is acceptable

where the expert offers “good grounds” for using the

particular study or other evidence in support of his or

her opinion. Jd. at 603.

Even the Navarro court recognized the validity of

the “weight-of-the-evidence” or “analytical gap”

analysis for determining causation: “{e]ven under the

reduced burden of the ‘analytical gap’ analysis,

Navarro’s expert witness testimony is flawed. See,

Gammill, 972 S.W.2d at 727 (applying ‘analytical

gap theory to expert witness testimony). .. .”

Navarro 90 S.W.3d 747 at 758.

This Court should adopt the weight-of-the-

evidence standard as the proper admissibility

standard for expert witness testimony in FELA

cases, especially FELA cases involving illnesses from

exposure to toxic chemicals.

3. Plaintiffs’ Expert Performed a

Reliable Weight-of-the-Evidence

Analysis Sufficient to Allow the

Issue of Medical Causation to be

Decided by the Jury

As stated in his Affidavit, Dr. Dahlgren’s medical

causation opinion was based upon the following

scientific and other evidence:

@ Plaintiffs’ exposure and medical histories

(CR:844-845);

The National Creosote Council 2001 wood

treatment plant workers exposure study

documenting significant inhalation and dermal

doses of creosote by all wood treatment facility

workers at five different creosote wood

treatment plants. (CR:849-850, 931-951).

Using this study, Dr. Dahlgren estimated the

qualitative level — low, medium, or high — of

creosote exposure the workers experienced at

the Houston Plant;

The United States Environmental Protection

Agency’s 2003 Preliminary Risk Assessment on

the Health Effects of Exposure to Coal Tar

Creosote at Wood Treatment Plants (based

upon the National Creosote Council’s 2001

Exposure Report). (CR:853-854, 997-1178).

The EPA’s Preliminary Risk Assessment report

concluded that “creosote acts most effectively

as a [cancer] promoter but also functions as a

complete carcinogen,” and that “cancer risks

for all post-application occupational scenarios

exceeded the level of concern. ...” The

Preliminary Risk Assessment also states that

“limitations notwithstanding, among the

epidemiological studies on the effects of

creosote exposure, increased risks for the

development of a number of diseases have

been observed. Diseases typically found to be

in excess include skin cancer and non-

malignant skin disorders, bladder cancer, lung

cancer and non-malignant respiratory

diseases” (CR:1147);

Defendant’s Internal Report (dated March 16,

1981) stating that the creosote used at the

Houston Plant contained cancer-causing

polycyclic aromatic hydrocarbons that are

recognized by the Occupational Safety &

Health Administration to have carcinogenic

potential (CR:846-847, 903-904);

The United States Department of Health,

Agency for Toxic Substances Disease Registry,

2001 Toxicological Profile for Coal Tar

Creosote, Coal Tar Pitch and Coal Tar Pitch

Volatiles, a 357 page official government

document compiled and reviewed by medical

and other scientists which chronicles the

relevant medical literature on the health

effects caused by coal tar products, including

creosote. (CR:851-852, 960). The Department

of Health published the toxicological profile on

coal tar products jointly because, as stated in

the profile, “[cloal tar creosote, coal tar, and

coal tar pitch are mixtures of similar

compounds [and] for this reason . . . we will

refer to coal tar creosote, coal tar, and coal tar

pitch simply as creosote. ... Coal tars are

byproducts of the carbonization of coal to

produce ...natural gas. Coal tar creosotes are

distillation products of coal tar, and coal tar

pitch is a residue produced during the

distillation of coal tar.... The major chemi-

cals in coal tar creosote, coal tar and coal tar

pitch that can cause harmful effects are

polycyclic aromatic hydrocarbons (PAHs),

phenol and creosoles.” (CR:965-966). (Defen-

dant’s own industrial hygienist, when

reporting to the Railroad on the health effects

of coal tar creosote-containing wood treatment

materials, stated that “creosote is commonly

handled and controlled occupationally similar

to coal tar since the health effects as a .

potential carcinogen with routine, prolonged

contact or inhalation are the same.”) (CR:907,

908).

The ATSDR Toxicological Profile on Coal Tar

Products states that “[t]he available

information suggests that increased

carcinogenicity risk and adverse dermal and

respiratory effects are the most important

health concerns related to exposure to coal tar

and coal tar products. ... Studies of workers

exposed to coal tar creosote, coal tar, coal tar

pitch, and coal tar pitch volatiles in various

industrial environments have found increased

cancer risk involving a number of tissues

including the respiratory tract, skin, lung,

pancreas, kidney, scrotum, prostate, rectum,

bladder and central nervous system.

Animal studies have demonstrated the

carcinogenic potential of dermally applied coal

tar products. LARC [The Internal Agency for

Research on Cancer] has classified creosote as

a Group 2A Mixture, probable human

carcinogen. [ARC classifies coal tar and coal

tar pitches as Group 1 mixtures, carcinogenic

to humans... EPA has classified creosote as

a Group B1, probable human carcinogen... .

. Workers using coal tar and coal tar

creosote in wood preservative plants exhibited

mild to moderate pulmonary restrictive and

obstructive deficits. ... Observations were

made of the effect of coal tar creosote on

workers constructing buildings with treated

wood (Jonas,1943). Complications observed in

2.4% of the workers included neurological

symptoms including headache, weakness,

confusion, vertigo and nausea.” (CR:960, 968-

972);

The United States Department of Health,

National Institute of Safety & Health, Criteria

for Recommended Standard, Occupational

Exposure to Coal Tar Preducts, September

1977 (another official government document

compiled and reviewed by me‘ical and other

scientists which references numerous scientific

studies in support of its findings and

conclusions). (CR:851-853, 974). In its

Criteria for Recommended Standard, the

United States Department of Health stated

that “{flrom the epidemiologic and

experimental toxicologic evidence on coal

tar, coal tar pitch and creosote, NIOSH

has concluded that they are carcinogenic

and can increase the risk of lung and

skin cancer in workers.” (CR:974, 975);

The findings of the International Agency for

Research on Cancer (IARC) (CR:853, 993-995).

IARC states that “[t]here is sufficient evidence

for the carcinogenicity in experimental animal

studies of coal tars, creosotes, creosote oils,

anthracene oils and coal tar pitches.

There is sufficient evidence that occupational

exposure to coal tars as it occurs during the

destructive distillation of coal is casually

associated with the occurrence of skin cancer

in humans.... The findings of the few studies

available on other occupational exposure to

coal tars are consistent with that evaluation.

... There is sufficient evidence that coal tar

pitches are carcinogenic in humans.... There

is limited evidence that coal-tar-derived

creosotes are carcinogenic in humans... .

Taken together, the data indicate that coal tar

and coal tar pitches are casually associated

with cancer in humans, and that creosotes

derived from coal tars are _ probably

carcinogenic in humans.” (CR:993, 995);

Creosote manufacturer (Kerr-McGee Chemical

Company) Material Safety Data Sheet for Coal

Tar Creosote. (CR:855, 1180-1186). The Kerr-

McGee Material Safety Data Sheet for Coal

Tar Creosote states, in relevant part, as

follows: “POTENTIAL HEALTH EFFECTS:

WARNING! HARMFUL IF. . . PRESERVA-

TIVE VAPORS OR MIST ARE INHALED:

MAY CAUSE IRRITATION TO THE NOSE,

THROAT AND LUNGS. Prolonged exposure

can lead to inflamation of the nasal passages

(rhinitis), lung disease (bronchitis) or asthma.

Repeated or prolonged exposure may

cause ... allergic dermatitis (skin). Animal

studies indicate that prolonged skin exposure

to creosote can cause cancer. SYMPTOMS OF

EXPOSURE Inhalation: Breathing

preservative vapors ... may cause headaches,

drowsiness, possible weakness. and

incoordination. ... MEDICAL CONDITIONS

AGGRAVATED BY EXPOSURE -— Pre-existing

skin disease, breathing or respiratory disease

or disorders, [and] sinus problems.” (CR:1181);

Creosote manufacturer (Koppers, Inc.)

Material Safety Data Sheet (CR:856, 1188-

1189). The Material Safety Data Sheet for

Coal Tar Creosote published by the creosote

manufacturer of Kopper’s Inc. states in

relevant part as follows: “HEALTH/SAFETY

ALERT — CHRONIC OVEREXPOSURE ...

MAY CAUSE CANCER ...SKIN CONTACT

CAN RESULT IN SEVERE IRRITATION

WHICH WHEN ACCENTUATED BY SUN-

LIGHT MAY RESULT IN PHOTOTOXIC

SKIN REACTION. ... THIS MATERIAL...

HAS CAUSED CANCER IN LABORATORY

ANIMALS. . . . INHALATION: ... .

REPEATED AND/OR PROLONGED

CONTACT TO HIGH CONCENTRATIONS

OF VAPOR MAY RESULT IN RESPIRATORY

DIFFICULTIES, CENTRAL NERVOUS

SYSTEM (CNS) EFFECTS CHARACTERIZED

BY HEADACHES, DROWSINESS,

DIZZINESS, WEAKNESS, [AND)

INCOORDINATION. .. .” (CR:118-119);

A 1992 Epidemiological Health Study of

Creosote Wood Treatment Plant Workers

conducted by Dr. Karlehagen [which was pub-

lished in a peer review journal, Scandinavian

Journal of Worker and Environmental Health].

(CR:857, 1213-1216). Dr. Karlehagen and his

colleagues studied 922 creosote wood

treatment plant workers at 13 coal tar creosote

wood treatment plants in Sweden and Norway.

The authors concluded that “[a] doubled

risk for skin .cancer was .. . observed

[with a 95% Confidence Interval] and this

increase could probably be attributed to

the combination of exposure to creosote

and sunlight.” (CR:1216). While the authors

were unable to quantify individual exposure

levels to the creosote, they stated that the

operators were “exposed to creosote vapors”

and “[a]s the wood was handled manually, the

skin of the operator was often exposed to

creosote and contamination of the skin

occurred when the [wood treatment

machinery] and the pipes were cleaned or

repaired.” (CR:1214);

Dr. Dahlgren also relied upon Dr. Flodin’s

1987 article discussing the connection between

creosote exposure and multiple myeloma

[bone marrow cancer]. (CR:858, 1218-1228).

Dr. Flodin found a statistically significant risk

of developing multiple myeloma as a result of

exposure to creosote. Relative risk of 6.0 with

a 95% confidence interval;

Because there are relatively few published

studies of the human health effects of exposure

to coal tar creosote, and because the principal

component of creosote (and all coal tar

products) consist of polycyclic aromatic

hydrocarbons (PAHs), medical scientists

(including Dr. Dahlgren) reasonably rely upon

health studies relating to PAH exposure

generally when assessing medical causation

for persons exposed to PAH-containing

compounds (such as_ coal tar creosote).

(CR:858-862). Cigarettes, for example, contain

PAH’s and are known human carcinogens.

Among the medical literature relied upon by

Dr. Dahlgren was the peer-reviewed Journal

article entitled “Cancer Risk from

Occupational and Environmental Exposure to

Polycyclic Aromatic Hydrocarbons, Cancer

Causes and Control” 1997 (CR:1271). The

article compares the cancer risk from PAH’s in

aluminum production, coal gasification, coke

production, iron and steel factories, coal tar

distillation, creosote wood treatment

operations, roofing, road paving, and chimney

sweeping. The author states that “[hJumans

are exposed to PAH’s by inhalation, and

ingestion and skin contact. Non-occupational

respiratory exposure is mainly from tobacco

smoke. ... The main route of occupational

exposure is, in most industries, inhalation; in

many instances, however, skin exposure

represents an important route. ... PAH’s...

generally account for at least 75% of

creosotes. They have been used extensively

as wood preservatives. Heavy occupational

exposure to mixtures of PAH’s entails a

substantial risk of lung, skin and bladder

cancer.” (CR:858-859, 1271, 1284, and 1294);

Dr. Dahlgren relied upon another medical

science article which states that “the

carcinogenicity of PAHs and PAH-containing

materials in humans seems to be beyond

dispute.” (CR:859, 1357, 1358).

Yet another PAH article relied upon by

Dr. Dahlgren states that “[t]his study shows a

clear excess of lung cancer risk in men who

had worked .. . in jobs generally with high

exposure to coal tar pitch volatiles.” (CR:860,

1312, 1320). It is undisputed that coal tar

pitch volatiles were present in the

process emissions at the Houston Wood

Preserving Works. In fact, defendant’s

expert report documents the presence of

coal tar pitch volatiles in the air at the

subject creosote plant. (CR:1326-1327).

Dr. Dahlgren also reviewed and relied upon

the 1997 Journal of Occupational Health

article entitled “Cancer Mortality Among

Carbon Workers in China: Retrospective Cohort

Study” by Ning Lui, et al., pp. 325-330. Lui

and his colleagues studied a group of 6,635

male workers exposed to PAH-containing coal

tar pitch volatiles for a fifteen-year period

between 1970 and 1985. The study found

standardized mortality ratios (““SMRs”) — the

equivalent of relative risks — for lung cancer

and liver cancer among the workers highly

exposed to coal tar pitch volatiles of 4.30

(p0.01) and 2.25 (p<0.01), respectively. (The P

value is the probability value and equates to a

95% Confidence Interval if less than .05.) The

SMRs for lung cancer and cancer of the

esophagus among moderately CTPV-exposed

workers were 1.52 (p>.05) and 5.46 (p<0.01),

respectively. The results showed that the

numerous deaths from lung cancer were

correlated with coal tar pitch volatiles in the

carbon-producing process in carbon plants.

The study concludes that “[t]he SMRs for all

cancers and lung cancer were 3.17 (p<0.01)

and 5.34 (p<0.01), respectively, for the non-

smokers among the highly exposed

workers....” Jd. at 330. (CR:860-861, 1329,

1334, 1336, 1338); and, lastly,

Dr. Dahlgren’s recently published Peer-

Reviewed articles on his study of creosote wood

treatment plant exposures and resulting

illnesses to neighboring residents. (CR:840,

1197-1212).

In this case, the workers suffer from illnesses —

including cancer, skin and respiratory ailments —

which the medical science shows can be caused by

chronic exposure to coal tar creosote. (See, CR:876-

901, Plaintiffs’ Summary of Tlness Chart). The

exposure and medical science evidence presented by

plaintiffs in this case supports Dr. Dahlgren’s

conclusion that plaintiffs’ claimed illnesses were

caused, at least in part, by their chronic exposure to

the creosote vapors and liquid.

Federal Rule of Evidence 702 provides as follows:

“If scientific, technical, or other

specialized knowledge will assist the

trier of fact to understand the evidence

or determine a fact in issue, a witness

qualified as an expert by knowledge,

skill, experience, training, or education,

may testify thereto in the form of an

opinion or otherwise, if (1) the testi-

mony is based upon sufficient facts or

data; (2) the testimony is the product of

reliable principles and methods; and (3)

the witness has applied the principles

and methods reliably to the facts of the

case.”

Interpreting Rule 702, the Supreme Court in

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

U.S. 579 (1993), held that “scientific expert testimony

must be both reliable and relevant to be admissible.”

Daubert's reliability requirement forecloses the

admission of expert witness testimony when it is not

“supported by appropriate validation.” Daubert, 509

U.S. at 590. In other words, the expert's opinion must

be grounded in more than “unsupported speculation

or subjective belief.” Curtis v. M&S Petroleum, Inc.,

174 F.3d 661, 668 (5th Cir. 1999). Texas has adopted

the Daubert standard of reliability. See, Frias vs. Atl.

Richfield Co., 104S.W.3d 925, 927 (Tex-App Houston

2003).

As fully outlined and _ referenced above,

Dr. Dahlgren relied upon reliable and relevant

scientific and other evidence. He not only relied upon

plaintiffs’ medical and exposure histories, but he

relied upon governmental-sponsored exposure studies

for creosote wood treatment plant workers, as well as

numerous governmental reports on the health effects

of chronic exposure to coal tar creosote and other coal

tar products. He relied upon specific scientific

literature to validate his opinion that coal tar

creosote can cause various cancers as well as skin

and respiratory disease, as well as some neurological

problems. He also relied upon the health warnings

issued by the manufacturers of the creosote. He

relied upon defendant’s own admission that creosote

contains cancer-causing chemicals. Dr. Dahlgren also

relied upon his own exposure and health studies |

relating to coal tar creosote which were peer reviewed

and published in a prominent journal.

Dr. Dahlgren’s opinions rested on a solid founda-

tion of scientific evidence. Summary judgment should

have been denied to allow Dr. Dahlgren’s medical

causation opinions to be heard and weighed by the

jury in deciding the issue of causation.

CONCLUSION

The Texas Court of Appeal’s decision runs counter

to long-standing FELA jurisprudence by

impermissibly narrowing employers’ liability in

FELA cases. The Texas decision severely limits a

FELA plaintiffs access to a jury trial by restricting a

FELA plaintiffs right to introduce testimony on the

issue of medical causation in toxic tort cases.

Certiorari should be granted to ensure that FELA

plaintiffs retain their right to a jury trial on the issue

of causation in the state and federal courts.

Dated: February 26, 2008.

Respectfully submitted,

ENGSTROM, LIPSCOMB & LACK

WALTER J. LACK

RICHARD P. KINNAN

Counsel of Record

Attorneys for Petitioners

APPENDIX A

A-|l

LIST OF PETITIONERS

All Plaintiffs and Intervenors in the above styled

and numbered cause of action, specifically, Clarence

Abraham; Delois Abraham, as Personal Represen-

tative and/or as a statutory heir of the Estate of

Dalton Abraham, Deceased; Milton J. Abraham;

Alvin Alexander; Caffery Alexander; Cliffton J.

Alexander; Clovis Alexander; Ernest Alexander;

Ernest J. Alexander; Lionel J. Alexander; Melton

Alexander; Norris Alexander, Patrick Alexander;

Russell J. Alexander; Shelton Alexander; Wilbert J.

Alexander; Paul J. Alfred; Gabriel Almeida; Domingo

Alonso; Leo D. Anderson; Olivia Anderson, as

Personal Representative and/or as a statutory heir of

the Estate of Orise Anderson, Deceased; Charles

Arceneaux, as Personal Representative and/or as a

statutory heir of the Estate of Wilton J. Arceneaux,

Deceased; Charles Arceneaux; Stanford Archie; John

W. Arnold Jr.; Freddie L. Arthur; Michael E. Artzt;

Helen Mack, as Personal Representative and/or as a

statutory heir of the Estate of Willie Austin,

Deceased; Danny Baisey; Leroy J. Baptiste; Carroll J,

Barber; Darrell Barber; Harold Barber, Jr., as

Personal Representative and/or as a statutory heir of

the Estate of Harold Barber, Deceased; Ronald Bass;

Herbert Batiste; Jewel Bennett; Jacqueline Y.

Bernard; Harvey Black; Horace G. Black; Louis C,

Black; Franck C. Blake; Nolton J. Blanchard; Mildred

Bland, as Personal Representative and/or as a

statutory heir of the Estate of Vernon Bland,

Deceased; Jessie Blanton, Jr.; Rodney D. Blanton;

Acy Bluford, Jr., Joseph H. Bonin; Jimmy Boykin;

Vicki Lounge, as Personal Representative and/or as

A-2

a statutory heir of the Estate of Thomas B. Brannon,

Deceased; William R Brazzil; Marvin Britton; Eugene

Brown; Ronald Brown; Leslie Bryan; Curtis Bryant;

Richard C Bryant; Keith A. Burley; Fred A. Burton;

Lloyd D. Busby, Christopher A, Bush, Herbert

Bushnell, as Personal Representative and/or as a

statutory heir of the Estate of Edwin Bushnell,

Deceased; Herbert Bushuell; Dean Bullara; Lee R,

Calais; August R. Caldwell; Sorney Calvert; Alfonso

Cardenas, Jr., Charles Carmouche; Rafael Casanova,

Jr.; Rudolph Castaneda; Clarence Celestine; Kenneth

Charles; Michael A. Charles, Anna M. Charles, as

Personal Representative and/or as a statutory heir of

the Estate of Russell E Charles, Sr., Deceased; John

F. Citizen; Jerome Clark; William M. Coleman;

Johnnie W Colvin; Phillip Comeaux, Robert Comeaux,

Alton Cormier; Delbert Courtney; Bernard Cramer;

Elton Crawford, as Personal Representative and/or as

a statutory heir of the Estate of Alton Crawford,

Deceased; Elton Crawford; John D. Cross; Stephen M.

Currie; Leonard Curry; Darryl Davis; Willie P Davis;

Jamesetta Davis, as Personal Representative and/or

as a statutory heir of the Estate of Albert Davis, Sr.,

Deceased; Robert J. Deese; Charles E. Dennis; Joseph

Derouselle; Eugene Drain; Paul Dumas, Jr.; Mary

Duncan, as Personal Representative and/or as a

statutory heir of the Estate of Leslie Duncan,

Deceased; Diane Eaglin, as Personal Representative

and/or as a statutory heir of the Estate of Robert

Eaglin, Deceased; Earl Ellis, as Personal

Representative and/or as a statutory heir of the

Estate of Leroy J. Ellis, Jr., Deceased; Earl J. Ellis;

Robert D. Ervin; Guadalupe Escochea, Jr ; Daley

Etienne; Alfred D. Fields; Rita Filmore, as Personal

A-3

Representative and/or as a statutory heir of the

Estate of Sterling Filmore, Deceased; Reginald B.

Fitzgerald; W. G. Foehr; Bobbie Martin, as Personal

Representative and/or as a statutory heir of the

Estate of Raymond L Ford, Deceased; Manuel Fraga;

Harold J. Francis, Carlton Franklin, as Personal

Representative and/or as a statutory heir of the

Estate of George Franklin, Deceased; Ted Frazier, as

Personal Representative and/or as a statutory heir of

the Estate of John Frazier, Deceased; Rodney

Freeman; Oliver R. Galloway; Eddie B. Garcia; Jose

B. Garcia; Samuel Gardner; Donald R. Gilder; David

Gipson; Alma Gobar, as Personal Representative

and/or as a statutory heir of the Estate of Whitney

Gobar, Deceased; Joseph C. Gollub; Vincente Gomez;

Leonard Green; Paul Green; Jose Guerra; Clifton J.

Gulliory; Felipe Gusman; Joseph Hall, Jr.; Deborah

Harris, as Personal Representative and/or as a

statutory heir of the Estate of Fredrick Harris,

Deceased; Brenda J. Hawkins, as Personal

Representative and/or as a statutory heir of the Estate

of Nathaniel W. Hawkins, Deceased; Melvin R.

Hayward; Candelario Hernandez; John E. Hollie, Jr.;

Mary K. Hooper, as Personal Representative and/or

as a statutory heir of the Estate of E. D. Hooper,

Deceased; Kenneth W. Hope, Sr.; Shelton D. Hope;

Hoover L. Hughes; Ronald W. Hunter; Glen

Hutchinson; John Paul Jackson; Lester Janice;

Joseph Janice, as Personal Representative and/or as

a statutory heir of the Estate of Toney Janice,

Deceased; Donnie Jefferson; Roy Jefferson; Bennie E.

Johnson; Bernard Johnson; Donald S. Johnson; Jimmy

Johnson; Johnny E. Johnson; Larry Johnson; Robert

Johnson, Jr.; Robert H. Johnson; Ronnie Johnson;

A-4

Wallace Johnson; Gilbert J. Jones, Joseph C. Jones;

Larry Jones, McAlvin Jones; Willie Jones; Robert W.

Joseph, Sr., Charles E. Junior; Marion R. Kalinwski;

Donald R. Keglea; Billy Ray King, Weldon C. King,

Jr.; Joseph A. Landry; Andrew H. Law; Otilia

LeBlanc, as Personal Representative and/or as a

statutory heir of the Estate of Joseph W, LeBlanc,

Deceased; Earl R. Lewis; Angela Rucks, as Personal

Representative and/or as a statutory heir of the

Estate of Isbay R. Lewis, III, Deceased; Joseph D.

Lewis, Jr.; Michael Lewis; Samuel Lewis; James L.

Lilley; Theresa Lloyd, as Personal Representative

and/or as a statutory heir of the Estate of Johnnie

Lloyd, Deceased; Earl Love, Jr.; Junius L. Lyons;

Glen Marburger; Arnold Diaz Mares; Julian

Martinez, Jr.; Victor Mathis; Wilber L. Mathis, Sr.;

Lynette Lanear, as Personal Representative and/or as

a statutory heir of the Estate of Alexander Mathews,

Deceased; Charles E. Matthews; Clarence Mathews,

Jr.; Clarence Mathews, Jr., as Personal

Representative and/or as a statutory heir of the Estate

of Clarence Mathews., Sr., Deceased; Jessie Mayes,

Sr.; Wilbert McGilber; John E. McGowan; Lonzo

McGrew; Ronald L. McGuire; Billy Ray McKenzie;

Ralph E. McKinley; Arthur McKnight; Theodore R.

McKnight; Carl Meier; Arvin Mitchell; Ronald J.

Morale; Johnny R. Morales, Jr.; Ernesto T. Moreno;

Juan F, Moreno; Wayne Moten, Sr.; Charles E. Nash;

Charles E. Neal; Merida Newsome; Edward Nixon;

Talbert M. North, Jr.; Jose Favian M. Ortjz; Anthony

W. Page; A. B. Page; James E. Page; Percy Page;

Richard A. Parker; Bobby E. Pelmore; Juan M. Pena;

Milton Petties; Rodney C. Pitre; David R. Potter;

Frances Prince, as Personal Representative and/or as

A-5

a statutory heir of the Estate of Earnest Prince,

Deceased; Larry W. Prince; Donald G. Quarles, Sr.;

Thomas L. Quarles; Elyne Rackel, as Personal

Representative and/or as a statutory heir of the

Estate of Elmo E. Rackel, Deceased; Jimmy D. Ray;

Douglas B. Reynolds; Bonnie Richards, as Personal

Representative and/or as a statutory heir of the

Estate of James Richards, Deceased; Dwight B.

Richardson; Eugene C. Richardson; Lindall Roark;

Jackie C. Robertson; Ignacio Rodriguez; Elmer T.

Rogerson; Frances Ross, as Personal Representative

and/or as a statutory heir of the Estate of Albert

Ross, Deceased; Reberto S. Saldivar; Raymond C.

Sauceda; James Savoie; Leon P. Savoy; Douglas W.

Scott; Don E. Simmang; Leon Singleton; Elvin

Skinner; Gregory H. Smith; Sydney Smith, Jr.; Willie

F. Smith, Sr.; Federico Soto, Sr.; Carlton J. Soularie;

Cloussy J. Soularie, Jr.; Cloussy Soularie., Sr.;

Clarence L. Spann; Ardis Stanley; Anthony W.

Stephens; Ricky Stephens; Jerry W. Stickman;

Clifford R. Stoot; George Tate; Raymond Tate; Wardell

Taylor; Joseph L. Thibodeaux; John H. Thompson;

Robert Thompson, Jr.; Michael R. Tillmon, Antonio

Torres, Jr.; Alfredo D. Tovar; Richard Tunwar;

Kenneth R. Tuttle; Curtis Vanschoubroek; Lois M.

Walker, as Personal Representative and/or as a

statutory heir of the Estate of British L. Walker, Sr.,

Deceased; Carolyn Walker, as _ Personal

Representative and/or as a statutory heir of the Estate

of Jack P. Walker, Deceased; Jessie Walker, Jr.;

Wilburn R. Wallace; Lena Johnson, as Personal

Representative and/or as a statutory heir of the

Estate of Clifton Washington, Deceased; Lavern

Washington; Charles B. Weatherspoon; Jessie James

A-6

Weeks; Charlotte Currie, as Personal Representative

and/or as a statutory heir of the Estate of Richard D.

Whisenant, Deceased; Stanley Whitaker; Al J.

Williams; Earl H. Williams; Ivory Williams; John H.

Willams; Joseph E. Williams; Alfreda Levine-

Williams, as Personal Representative and/or as a

statutory heir of the Estate of Ronald J, Williams,

Deceased; Wallace Williams; Walter Williams, III;

Willie D. Williams; Clarence A. Willis; Charles

Willridge; M. T. Wilson, Jr.; Clarence J. Wiltz; Cherie

Winfrey, as Personal Representative and/or as a

statutory heir of the Estate of Clifford Winfrey,

Deceased; Arnett Wrencher; Clifton Wyatt, Sr.;

Tilman Zackery, Jr.; Joe D. Zamora; and Clarence

Zenon, Jr.

APPENDIX B

B-1

Affirmed and Opinion filed June 28, 2007.

In The

Fourteenth Court of Appeals

NO. 14-06-00419-CV

CLARENCE ABRAHAM, ET AL., Appellants

UNION PACIFIC RAILROAD COMPANY

On Appeal from the 295" District Court

Harris County, Texas

Trial Court Cause No. 2000-38069

OPINION

Appellants, 293 former and current employees of

Union Pacific Railroad Company,’ appeal a summary

judgment in favor of Union Pacific. In a single issue,

appellants argue that their medical causation

evidence was sufficient to overcome appeliee’s motion

for summary judgment. We affirm.

' Appellants’ full names are listed in an appendix to this

opinion.

B-2

I. BACKGROUND

Appellants filed a toxic tort suit under the Federal

Employers Liability Act (“FELLA”) alleging that

exposure to creosote used in the treatment of railroad

ties caused appellants to suffer diseases of the throat,

lungs, and skin including cancer. See 45 U.S.C. §§

51-70. The trial court set a trial date for a “test

plaintiff,” Leslie Duncan. Mr. Duncan worked at

Houston Wood Preserving Works where he loaded

treated railroad cross-ties onto railroad cars. Medical

records indicate that Mr. Duncan smoked cigarettes

and regularly drank a moderate amount of alcohol.

Mr. Duncan died from throat and lung cancers in

2002.

After appellants produced the affidavit of their

medical expert, Dr. James Dahlgren, appellee filed a

motion for summary judgment on both traditional

and no evidence grounds. Appellee based its motion

on the ground that Dr. Dahlgren’s affidavit was no

evidence of causation because it did not contain

scientifically reliable and legally sufficient expert

evidence. The trial court granted summary judgment

in favor of appellee against Mr. Duncan. Almost a

year later, appellee filed a motion for summary

judgment against the remaining appellants. The

trial court subsequently granted summary judgment

against all appellants.

B-3

Ii. STANDARD OF REVIEW

Ano evidence motion for summary judgment must

be granted if: (1) the moving party asserts that there

is no evidence of one or more specified elements of a

claim or defense on which the adverse party would

have the burden of proof at trial; and (2) the

respondent produces no summary judgment evidence

raising a genuine issue of material facts on those

elements. See TEX.R.CIV.P. 166a(I). In reviewing a

no evidence summary judgment, we review the record

in the light most favorable to the nonmovant to

determine whether more than a scintilla of evidence

was presented on the challenged elements of the

nonmovant’s claim. See Wal-Mart Stores, Inc. v.

Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002). When a

trial court’s order granting a no evidence summary

judgment does not specify the ground relied upon for

its ruling, the summary judgment will be affirmed if

any of the theories advanced is meritorious. Dow

Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001).

A party may object to the reliability of expert

testimony either before trial or when it is offered. See

Guadalupe-Blanco River Auth. v. Kraft, 77 S.W.3d

805, 807 (Tex. 2002). Once such an objection is made,

the burden is on the proponent of the evidence to

establish its reliability. Zd. A trial court’s decision

whether to admit expert testimony is reviewed for

abuse of discretion. Jd. In addition to being a

determinant of the admissibility of such evidence, the

reliability of expert testimony is also a prerequisite to

its legal sufficiency. See Merrell Dow Pharms. v.

Havner, 935 S.W.2d 706, 714 (Tex. 1997). In the

B-4

context of a motion for summary judgment where, as

here, expert evidence relied on by the nonmovant is

objected to by the movant based on reliability, the

evidence must be both admissible and legally

sufficient to withstand the no evidence challenge. See

Frias v. Atlantic Richfield Co., 104 S.W.3d 925, 928

n.2 (Tex. App. --- Houston [14 Dist.] 2003, no pet.).

Ill. CAUSATION

A. Sho FELA Causation Standard

Under FELA, every railroad engaging in

interstate commerce is liable in damages to any

employee injured during his employment when such

injury results in whole or in part from the railroad’s

negligence or by reason of any defect or insufficiency

due to its negligence. See 45 U.S.C. § 51 (1988).

Plaintiffs must prove the common-law elements of

negligence, duty, breach, foreseeability and cause-in-

fact; however, under FELA, the plaintiff carries only

a slight burden on causation. Union Pac.R.R. Co. v.

Williams, 85 S.W.3d 162, 168 (Tex. 2002).

Accordingly, the test of causation is whether the proof

justifies, within reason, the conclusion that employer

negligence played any party, even the slightest, in

producing the injury or death for which the claimant

seeks damages. Rogers v. Missouri Pacific Ry., 352

U.S. 500, 507, 77 S.Ct. 443, 449, 1 L.Ed. 493 (1957).

B. Necessity of Expert Testimony

Despite the lower burden under FELA, a plaintiff

still bears the burden of presenting evidence from

B-5

which a jury could conclude the existence of a

probable or likely causal relationship as opposed to

merely a possible one. Edmons v. Illinois Cent. Gulf

R;.R.Co., 910 F.2d 1284, 1288 (5™ Cir. 1990). The

causal link between an event sued upon and the

plaintiffs injuries must be shown by competent

evidence. Morgan v. Compugraphic Corp., 675

S.W.2d 729, 731 (Tex. 1984). Lay testimony will

suffice when general experience and common sense

will enable a lay person fairly to determine the causal

connection. Praytor v. Ford Motor Co., 97 S.W.3d

237, 241 (Tex. App.---Houston [(14" Dist.] 2002, no

pet.). The existence of a causal connection between

exposure to a certain chemical and injury or disease

requires specialized expert knowledge and testimony

because such matters are not within the common

knowledge of lay persons. Pilgrim’s Pride Corp. v.

Smoak, 134 S.W.3d 880, 893 (Tex. App.---Texarkana

2004, pet. denied). Therefore, in this case in which

the plaintiffs have alleged that exposure to creosote

caused their diseases, expert testimony is required to

enable lay persons to determine whether the

exposure caused the disease.

C. Reliability of Expert Testimony

Despite the fact that appellants assert a claim

under the federal statute, the trial court must follow

state procedure in determining the reliability of

expert testimony. See Maritime Overseas Corp. uv.

Ellis, 971 S.W.2d 402, 406 (Tex. 1998). To be

admissible into evidence, an expert’s testimony must,

among other things, be reliable. E.J. Dupont de

Nemours and Co. v. Robinson, 923 S.W.2d 549, 565

B-6

(Tex. 1995). In Robinson, the Texas Supreme Court

set forth a two-part test governing the admissibility

of expert testimony: (1) the expert must be qualified;

and (2) the testimony must be relevant and be based

on a reliable foundation. Jd. at 556. Expert

testimony is unreliable if: (1) it is not grounded in the

methods and procedures of science and is thus no

more than subjective belief or unsupported

speculation; or (2) there is too great an analytical gap

between the data upon which the expert relies and

the opinion he offers. Cooper Tire & Rubber Co. uv.

Mendezm, 204 S.W.3d 797, 800 (Tex. 2006). The

purpose of the reliability determination is not to

decide whether the expert’s conclusions are correct,

but only whether the analysis used to reach them is

reliable. Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 632,

629 (Tex. 2002).

D. Expert Testimony under the FELA Causa-

tion Standard

1. Federal Authority

Appellants rely on Hines v. Conrail Corp., 926

F.2d 262 (3 Cir. 1991), to validate their expert’s

testimony. In that opinion, the Third Circuit opined

that causation under FELA is broadly interpreted

and that “a medical expert can testify that there was

more than one potential cause of plaintiffs condition.”

Id. at 268. The court further concluded that a trial

court is justified in withdrawing issues from the

jury’s consideration only in those rare instances

where there is a zero probability either of employer

negligence or that any such negligence cortributed to

B-7

the injury of the employee. Jd., citing Pehowic v. Erie

L.R.R.,, 430 F.2d 697, 699-700 (3™ Cir. 1970). The

Hines court found that by enacting FELA, Congress

desired to “secure jury determinations in a larger

proportion of cases than would be true of ordinary

common law actions.” 926 F.2d at 269, quoting

Boeing Co. v. Shipman, 411 F.2d 365, 371 (5" Cir.

1969), overruled on other grounds, Gautreaux v.

Scurlock Marine, Inc., 107 F.3d 331, 336 (5™ Cir.

1997). The court further held that the standard of

causation under FELA can significantly influence a

determination of the admissibility of an expert’s

testimony. 926 F.2d ate 269. Thus, the court in

Hines found that FELA’s liberal standard of

causation required the admission of evidence that

might have been excluded in a non-FELA case. See

id.

Two years after Hines, the Supreme Court issued

Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579,

113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), regarding

the reliability of expert testimony. In Robinson, the

Texas Supren.2 Court adopted the Daubert standards

for assessing the reliability of expert testimony. 923

S.W.2d at 557. Several federal courts have addressed

the tension between the Daubert / Robinson standard

of admission of expert testimony and the FELA

standard of causation for submission of a case to a

jury. Those courts have found that the standard of

causation under FELA and the standards of

admission of expert testimony under the rules of

evidence are distinct issues and do not affect each

other. See In re Paoli R.R. Yard PCB Litig., 35 F.3d

717, 743 (3% Cir. 1994); Claar v. Burlington Northern

B-8

R.R. Co., 29 F.3d 499, 503 (9™ Cir. 1994); In re

Conrail Toxic Tort Fela Litig., No. CIV. A94-11J,

Civ.A94-4J, 1998 WL 465897 (W.D. Pa. Aug. 4, 1998)

(not release for publication).

The lower burden under FELA does not mean

that, in FELA cases, courts mut permit expert

testimony that would not be admissible in other

contexts. Claar, 29 F.3d at 503. Despite the lower

causation standard under FELA, plaintiffs must still

demonstrate some causal connection between a

defendant’s negligence and their injuries. Maynew v.

Bell S.S. Co., 917 F.2d 961, 964 (6" Cir. 1990);

Edmonds, 910 F.2d at 1288. In a FELA case, the

Daubert / Robinson standard of admissibility extends

to each step in an expert’s analysis all the way

through the step that connects the work of the expert

to the particular case. In re Paoli, 35 F.3d at 743. As

long as a FELA plaintiff's expert present scientifically

reliable evidence that the toxic exposure could have

played some role, however, small, in causing the

plaintiffs injuries, the testimony should be admitted

under the FELA standard. Savage v. Union Pac.

R.R. Co., 67 F.Supp.2d 1021, 1028 (E.D. Arkansas

1999).

2. State Authority

At least two Texas Courts of Appeal have

addressed the issue of the application of Robinson

and Hauner to the relaxed FELA causation standard.

See Missouri Pac. R.R. Co. v. Navarro, 90 S.W.3d 747,

750-51 (Tex. App.---Houston [1* Dist.] 2002, pet.

B-9

denied). In Navarro, the San Antonio Court of

Appeals, recognizing FELA’s “featherweight” burden

of proof, distinguished the concepts of burden of proof

from admissibility of evidence. It held that the lower

FELA burden “has not been generally applied to the

admissibility of expert testimony.” Naarro, 90

S.W.3d at 751. This conceptual distinction is

described as follows: “In [a] FELA case, the Daubert

standard of admissibility of expert evidence ‘extends

to each step in an expert’s analysis al the way

through the step that connects the work of the expert

to the particular case.” Id.

In Anderson, the First Circuit Court of Appeals

also addressed the admissibility of expert testimony

under the “featherweight” causation standard. In

that case, the court held that the causation standard

under FELA and the Jones Act cannot transform no

evidence into some evidence. Jd. at 610. The

majority opinion noted that in determining admis-

sibility of expert testimony, the proper focus is not on

the causation burden of proof, but on whether the

expert opinion testimony is reliable “in the first

place.” Jd. Therefore, if the expert testimony is

unreliable under Hauvner and Robinson, it is no

evidence, “not even a feather’s weight.” Id.

Andersoni was a case brought under the Jones Act, which

expressly incorporates the relaxed FELA causation standard.

See American Dredging Co. v. Miller, 510 U.S. 443, 456, 114

S.Ct. 981, 127 L.Ed.2d 285 (1994); Offshore Pipelines, Inc. v.

Schooley, 984 S.W.2d 654, 657 (Tex. App.—Houston [1 Dist.]

1998, no pet.).

B-10

Appellants contend that the trial court improperly

applied Havuner to require a higher level of scientific

proof than is required in FELA cases. They partially

rely on the Navarro concurrence, in which one justice

lamented that the precedent the courts of appeals

must follow fails to consider the special burden of

proof that a plaintiff must bear in a FELA action. We

note that the primary case cited in the concurrence,

Hines, was decided before Daubert and Robinson,

that is to say, before the establishment of standards

for admissibility of expert testimony. Therefore, we

do not find Hines to be persuasive. Moreover, the

accepted distinction between burden of proof and

admissibility of evidence defeats appellant’s

argument that we are improperly applying Hauner.

E. Does Dr. Dahlgren’s Opinion Present

Scientifically Reliable Evidence that

Appellants’ Exposure to Creosote Played

Some Role in Causing Their Injuries?

In his affidavit, Dr. Dahlgren states that he is a

medical doctor with board certification in internal

medicine and has over thirty years’ experience in

occupational and environmental toxicology. He is of

the opinion that Mr. Duncan’s throat and lung

cancers were caused by exposure to coal tar creosote

while working at appellee’s wood treatment plant.

Dr. Dahlgren states he based his opinion on coal tar

and creosote studies both substances contain

polycyclic aromatic hydrocarbons (PAHs) in different

concentrations. He relied on scientific and medical

literature revealing that cigarette smoke contains

PAHs and that cigarette smokers are at risk for

B-11

throat and lung cancer due to PAH exposure.

Dr. Dahlgren reviewed the medical records of all

plaintiffs, the health records of nearly all of the

plaintiffs, each of the plaintiffs’ answers to

interrogatories, and the depositions of those plaintiffs

that were taken. Dr. Dahlgren opined:

Assuming regular daily exposure to the

creosote material on the skin and through

breathing the vapors of at least the equivalent

of one work year, the above-referenced

evidence together supports my opinion that

plaintiffs’ claimed cancers and non-malignant

respiratory, skin, and neurological diseases

were caused at least in part by their chronic

exposure to the toxic creosote. It is my

professional opinion that plaintiffs’ claimed

cancers and non-malignant respiratory, skin,

and neurological diseases were caused at least

in part by their chronic exposure to the toxic

creosote.

Dr. Dahigren concluded that, “[t]he evidence that

coal tar creosote is a carcinogen is not ambiguous. No

serious scientist would question that the main

ingredient in creosote (PAHs) are [sic] carcinogenic.”

Dr. Dahlgren specifically relied on studies conducted

by the Environmental Protection Agency (“EPA”), the

National Creosote Council, he United States Agency

for Toxic Substances and Disease Registry

(“ATSDR”), the National Institute of Safety and

Health (“NIOSH”), and the International Agency for

Research on Cancer (“IARC”). Dr. Dahlgren further

reviewed epidemiological studies published in the

B-12

Scandinavian Journal of Workers and Environmental

Health and the Journal of Occupational Health.

Finally, Dr. Dahlgren further relied on his own study

conducted on residents living next to a wood

treatment plant.

Appellee contends that Dr. Dahigren’s causation

opinion is flawed because he did ot demonstrate

knowledge as to the amount of exposure each of the

plaintiffs had to creosote. Knowledge of the extent of

exposure to a potentially harmful substance is

essential to any reliable expert opinion that the

particular substances caused a disease. See Savage,

67 F.Supp.2d at 1031. To carry the burden of proving

a plaintiffs injury was caused by exposure to a

specific substance, the plaintiff must demonstrate the

levels of exposure hazardous to human beings

generally as well as the plaintiffs actual level of

exposure. Austin v. Kerr-McGee Refining Corp., 25

S.W.3d 280, 292 (Tex.App._Texarkana 2000, no pet.).

In attempting to determine specific exposure

levels, Dr. Dahigren referred to the Creosote Council

Study of 2001 and the 2003 EPA document. The

Council study was conducted to determine the

exposure to creosote of workers applying creosote end

use products to wood poles nd railroad ties. The test

subjects were divided into treatment plant job

categories. Creosote skin and inhalation exposure

was measured based on an eight-hour work day by

plant worker category. The EPA relied on the

exposure data in the Creosote Council report. The

EPA report stated that the EPA determined there are

potential exposures to mixers, loaders, applicators,

B-13

and other handlers during typical use-patterns

associated with creosote and from use in commercial

and industrial settings. The EPA reported that

“Creosote is created as a Bl probable human

carcinogen based on limited evidence of the

association between occupational creosote contact

and subsequent tumor formation.” The EPA

concluded that, “Cancer risks for all handler

scenarios exceed the level of concern .. . for

occupational handlers.”

In his deposition, Dr. Dahlgren testified that he

could extrapolate from those studies the level of

exposure for the plaintiffs in this lawsuit. Dr.

Dahlgren testified as follows:

Q. So in determining exposure levels, you

referred to the 2003 EPA document when

forming your — when determining what the

exposure levels were for the Abraham

plaintiffs?

A. Yes. We can —

nK KE ok 2

[Dr. Dahlgren]: We can extrapolate from those

studies to what was going on with the workers

in this Houston wood treatment plant that are

the subject of this lawsuit.

Q. And did you perform an extrapolation from

the 2003 EPA document?

Q. — that you conducted?

[Dr. Dahlgren]: I didn’t take any notes.

Q. What type of extrapolation did you perform?

A. I’ve already stated that we looked at those

— the paper published by — or the EPA

document which reflects the Creosote Council

study, and we compared the results of those

studies to our workers.

And the way we did that is by pointing out the

deposition testimony where they describe their

exposures as becoming wet with creosote on

their clothing, touching the creosote freshly

treated wood, touching the actual creosote oil,

getting it on their person, breathing the vapors

from the exposures. All of those things reflect

a dose of exposure that those people had.

And in terms of quantifying it, we can say that

the Creosote Council study would have been

similar.

But as I also modified, they probably had

higher exposures in the workers subject to this

study than were even reflected in the Creosote

Council studies because of what they stated in

their study, which is that exposures these days

are lower than they would have been in prior

decades.

B-15

Even if the EPA study coupled with the Creosote

Council study and the other studies reviewed by Dr.

Dahlgren could be considered reliable evidence that

creosote exposure at certain levels causes disease in

human beings generally, appellants have not

produced reliable evidence that they were exposed to

those levels of creosote. The EPA study found an

increased risk of cancer for all workers categorized as

“handlers” The study did not address office

personnel and workers in non-treating areas because

the Creosote Council found that those workers “are

far less likely to be exposed to creosote than are those

workers who were directly involved in the treatment

process.” Appellants have presented no evidence as

to which plaintiffs may fall into certain worker

categories.

Appellants prepared a chart listing each of the

plaintiffs, their age, level of exposure, illness

summary, and illness category. Under the column

entitled, “Exposure Rating,” each individual’s

exposure is given a value of low, medium, or high,

and his or her years of employment with the railroad

company are listed. No job categories are listed in

the chart. Appellants contend that in preparing the

chart Dr. Cahlgren reviewed the plaintiffs’

interrogatories and used their job categories to

extrapolate the level of exposure. However, Dr.

A governmental agency finding that exposure to a

substances increases the risk of disease cannot generally be

considered as reliable evidence of causation in a tort case. See

Exxon Corp. v. Makofski, 116 S.W.3d 176, 188 (Tex.App.—

Houston [14" Dist.] 2003, pet.denied).

B-16

Dahlgren admitted he took no notes of this

extrapolation. Appellants did not attach the

interrogatories or depositions to their response to

motion for summary judgment in the trial court.

Therefore, appellants produced no evidence from

which the trial court could determine whether

appellants were exposed to similar levels of creosote

that led the EPA to find an creased risk of disease.

A plaintiff must prove the level of exposure using

techniques subject to objective, independent

validation in the scientific community. See Moore v.

Ashland Chemical, Inc., 151 F.3d 269, 276 (5" Cir.

1998). Scientific knowledge of the harmful level of

exposure to a chemical plus knowledge that the

plaintiffs were exposed to such quantities are

minimal facts necessary to sustain the plaintiffs’

burden in a toxic tort case. Allen v. Pennsylvania

Engineering Corp., 102 F.3d 194, 199 (5™ Cir. 1996).

Appellants need not produce a mathematically

precise table equating levels of exposure with levels

of harm to show that they were exposed to toxic levels

of creosote, but they must produce evidence from

which a reasonable person could conclude that their

exposure probably caused their injuries. See Bonner

uv. ISP Technologies, Inc., 259 F.3d 924, 928 (8 Cir.

2001). Appellants must show that they were exposed

to creosote and that their exposure was equal to or

greater than the exposure in the studies on which

they rely. Navarro, 90 S.W.3d at 755-56.

In Navarro, the plaintiffs expert, as in this case,

based calculations of exposure on job categories. Jd.

At 756. In that case, the expert relied on only one

B-17

study that classified each job category with specific

numerical values of exposure to diesel exhaust. Id.

The court found that the expert’s testimony was not

liable because he used measurements different from

those used in the study and he compared the

plaintiffs exposure level to those of workers in the

study who held different jobs than the plaintiff. Zd.

In this case, as in Navarro, the plaintiffs’ expert

relied on only one study that classified job categories

and the level of exposure that correlated with each

job category. Unlike the expert in Navarro, however,

Dr. Dahlgren did not provide the trial court with the

information it needed to test his opinions. Dr.

Dahlgren did not, in his affidavit, or in his deposition,

correlate the plaintiffs with the job categories listed

in the EPA study. Dr. Dahigren merely assigns each

plaintiff an exposure rating based on length of

employment. We can find no evidence of whether

each of the 293 plaintiffs were clerical workers,

mixers, loaders, applicators, etc. Even assuming this

to be the most precise conclusion that c an be drawn

from the limited data available, such indefinite

measurements of exposure are subject to a wide

variance and largely open to speculation.

Appellants rely on the Fourth Circuit’s opinion in

Westberry v. Gislaved Gummi AB, 178 F.3d 257 (4°

Cir. 1999) for the proposition that specific exposure

levels are not required for a reliable expert medical

causation opinion. The expert in that case relied on

a differential diagnosis to opine that the plaintiffs

exposure to airborne talc caused the aggravation ofa

pre-existing sinus condition. The defendant moved to

B-18

exclude the opinion because the expert “had no

means of assessing what level of exposure was

adequate to produce the sinus irritation Westberry

experienced.” Jd. at 263. The court rejected the

defendant’s argument based on the plaintiffs

testimony that he was exposed to very high levels of

tale. Id. At 264. The plaintiff in Westberry testified

that when he removed gaskets from shipping boxes,

the gaskets, which were black, had so much talc on

them that they appeared to be white or gray. Talc

was released into the air as he worked with the

gaskets; at the close of the workday, plaintiff was

required to blow off his work area, stirring up all the

tale that had fallen during the day. Id. The Court

found this testimony was sufficient to permit the trial

court to conclude that the plaintiff was exposed to

high levels of airborne talc. Jd.

Unlike the plaintiff in Westberry, the plaintiffs in

this case have not produced sufficient evidence of

their levels of exposure. Appellants argue they

presented similar evidence in their depositions when

they describe their exposures as “becoming wet with

creosote on their clothing, touching the creosote

freshly treated wood, touching the actual creosote oil,

getting it on their person, breathing the vapors from

the exposures.” In. Dr. Dahigren’s opinion, all the

plaintiffs had “prolonged” exposure over a period of at

least one year. However, plaintiffs have produced no

scientific data showing that the extent and nature of

their creosote exposure is the same or similar to the

exposure necessary to promote the development of

disease. For this reason, Dr. Dahlgren’s opinions do

not meet the reliability standards under Daubert and

Robinson.

Considering the evidence in a light most favorable

to appellants, we find they have failed to produce

evidence that their exposure was equal to or greater

than the exposure in the studies on which they rely.

There is no reliable scientific evidence to connect

appellants’ exposure to creosote to appellants’ injuries

other than the unsupported assertion of Dr.

Dahlgren. Appellants’ evidence, therefore, cannot

withstand appellee’s no-evidence challenge.

Accordingly, the judgment of the trial court is

affirmed.

/s/ Adele Hedges

Chief Justice

Judgment rendered and Opinion filed June 28, 2007.

Panel consists of Chief Justice Hedges and Justices

Hudson and Edelman.

B-20

APPENDIX

LIST OF APPELLANTS

Clarence Abraham; Delois Abraham, as Personal

Representative and/or as a statutory heir of the

Estate of Dalton Ahraham, Deceased; Milton J.

Abraham; Alvin Alexander; Caffery Alexander;

Cliffton J. Alexander; Clovis Alexander; Ernest

Alexander; Ernest J. Alexander; Lionel J. Alexander;

Melton Alexander; Norris Alexander, Patrick

Alexander; Russell J. Alexander; Shelton Alexander;

Wilbert J. Alexander; Paul J. Alfred; Gabriel

Almeida; Domingo Alonso; Leo D. Anderson; Olivia

Anderson, as Personal Representative and/or as a

statutory heir of the Estate of Orise Anderson,

Deceased; Charles Arceneaux, as _ Personal

Representative and/or as a statutory heir of the

Estate of Wilton J. Arceneaux, Deceased; Charles

Arceneaux; Stanford Archie; John W. Arnold Jr.;

Freddie L. Arthur; Michael E.Artzt; Helen Mack, as

Personal Representative and/or as a statutory heir of

the Estate of Willie Austin, Deceased; Danny Baisey;

Leroy J. Baptiste; Carroll J. Barber; Darrell Barber;

Harold Barber, Jr., as Personal Representative

and/or as a statutory heir of the Estate of Harold

Barber, Decased; Ronald Bass; Herbert Batiste;

Jewel Bennett; Jacqueline Y. Bernard; Harvey Black;

Horace G. Black; Louis C. Black; Franck C. Blake;

Nolton J. Blanchart; Mildred Bland, as Personal

Representative and/or as statutory heir of the Estate

of Vernon Bland, Deceased; Jessie Blanton, Jr.;

Rodney D. Blanton; Acy Bluford, Jr., Joseph H.

Bonin; Jimmy Boykin; Vicki Lounge, as Personal

B-21

Representative and/or as a statutory heir of the

Estate of Thomas B. Brannon, Deceased; William R.

Brazzil; Marvin Britton; Eugene Brown; Ronald

Brown; Leslie Bryan; Curtis Bryant; Richard C.

Bryant; Keith A. Burley; Fred A. Burton; Lloyd D.

Busby, Christopher A. Bush, Berbert Bushnell, as

Personal Representative and/or as a statutory heir of

the Estate of Edwin Bushnell, Deceased; Herbert

Bushnell; Dean Bullera; Lee R. Calais; August R.

Caldwell; Sorney Calvert; Alfonso Cardenas, Jr.,

Charles Camouche; Rafael Casanova, Jr.; Rudolph

Castaneda; Clarence Celestine; Kenneth Charles;

Michael A. Charles, Anna M. Charles, as Personal

Representative and/or as a statutory heir of the

Estate of Russell E. Charles, Sr., Deceased; John F.

Citizen; Jerome Clark; William M. Coleman; Johnnie

W. Colvin; Phillip Comeaux, Robert Comeaux, Alton

Cormier; Delbert Courtney; Bernard Cramer; Elton

Crawford, as Personal Representative and/or as a

statutory heir of the Estate of Alton Crawford,

Deceased; Elton Crawford; John D. Cross; Stephanie

M. Currie; Leonard Curry; Darryl Davis; Willie P.

Davis; Jamesetta Davis, as Personal Representative

and/or as a statutory heir of the Estate of « lbert

Davis, Sr., Deceased; Robert J. Deese; Charles E.

Dennis; Joseph Derouselle; Eugene Drain; Paul

Dumas, Jr.; Mary Duncan, as Personal

Representative and/or as a statutory heir of the

Estate of Leslie Duncan, Deceased; Diane Eaglin, as

Personal Representative and/or as a statutory heir of

the Estate of Robert Eaglin, Deceased; Earl Ellis, as

Personal Representative and/or as a statutory heir of

the Estate of Leroy J. Ellis, Jr.; Earl J. Ellis, Robert

D. Ervin; Guadalupe Escochea, Jr.; Daley Etienne;

B-22

Alfred D. Fields; Rita Filmore, as Personal

Representative and/or as a statutory heir of the

Estate of Sterling Filmore, Deceased; Reginald B.

Fitzgerald; W. G. Foehr; Bobbie Martin, as Personal

Representative and/or as a statutory heir of the

Estate of Raymond L. Ford, Deceased; Manuel Fraga;

Harold J. Francis, Carlton Franklin, as Personal

Representative and/or as a statutory heir of the

Estate of George Franklin, Deceased; Ted Frazier, as

Personal Kepresentative and/or as a statutory heir of

the Estate of John Frazier, Deceased; Rodney

Freeman; Oliver R. Galloway; Eddie B. Garcia; Jose

B. Garcia; Samuel Gardner; Donald R. Gilder: David

Gipson; Alma Gobar, as Personal Representative

and/or as a statutory heir of the Estate of Whitney

Gobar, Deceased; Joseph C. Gollub; Vincente Gomez;

Leonard Green; Paul Green; Jose Guerra; Clifton J.

Gulliory; Felipe Gusman; Joseph Hall, Jr.; Deborah

Harris, as Personal Representative and/or as a

statutory heir of the Estate of Fredrick Harris,

Deceased; Brenda J. Hawkins, as Personal

Representative and/or as a statutory heir of the

Estate of Nathaniel W. Hawkins, Deceased; Melvin

R. Hayward; Candelario Hernandez; John E. Hollie,

Jr.; Mary K. Hooper, as Personal Representative

and/or as a statutory heir of the Estate of E. D.

Hooper, Deceased; Kenneth W. Hope, Sr.; Shelton D.

Hope; Hoover L. Hughes; Ronald W. Hunter; Glen

Hutchison; John Paul Jackson; Lester Janice; Joseph

Janice, as Personal Representative and/or as a

statutory heir of the Estate of Toney Janice,

Deceased; Donnie Jefferson; Roy Jefferson; Bennie E.

Johnson; Bernard Johnson; Donald S. Johnson;

Jimmy Johnson; Johnny E. Johnson; Larry Johnson;

B-23

Robert Johnson, Jr.; Robert H. Johnson; Ronnie

Johnson; Wallace Johnson; Gilbert J. Jones, Joseph

C. Jones; Larry Jones, McAlvin Jones; Willie Jones;

Robert W. Joseph, Sr., Charles E. Jr.; Marion R.

Kalinwski; Donald R. Keglea; Billy Ray King, Weldon

C. King, Jr.; Joseph A. Landry; Andrew H. Law;

Otilia LeBlanc, as Personal Representative and/or as

a statutory heir of the Estate of Joseph W, LeBlanc,

Deceased; Ear] R. Lewis; Angela Rucks, as Personal

Representative and/or as a statutory heir of the

Estate of Isbay R. Lewis, III, Deceased; Joseph D.

Lewis, Jr.; Michael Lewis; Samuel Lewis; James L.

Lilley; Theresa Lioyd, as Personal Representative

and/or as a statutory heir of the Estate of Johnnie

Lloyd, Deceased; Earl Love, Jr.; Junius L. Lyons;

Glen Marburger; Arnold Diaz Mares; Julian

Martinez, Jr.; Victor Mathis; Wilber L. Mathis, Sr.;

Lynette Lanear, as Personal Representative and/or

as a statutory heir of the Estate of Alexander

Mathews, Deceased; Charles E. Matthews; Clarence

Mathews, Jr.; Clarence Mathews, Jr., as Personal

Representative and/or as a statutory heir of the

Estate of Clarence Mathews., Sr., Deceased; Jessie

Mayes, Sr.; Wilbert McGilber; John E. McGowan;

Lonzo McGrew; Ronald L. MaGuire; Billy Ray

McKenzie; Ralph E. McKinley; Arthur McKnight;

Theodore R. McKnight; Carl Meier; Arvin Mitchell;

Ronald J. Morale; John R. Morales, Jr.; Ernesto T.

Moreno; Juan F. Moreno; Wayne Moten, Sr.; Charles

E. Nash; Charles E. Neal; Merida Newsome; Edward

Nixon; Talbert M. North, Jr.; Jose Favian M. Ortjz;

Anthony W. Page; A.B. Page; James E. Page; Percy

Page; Richard A. Parker; Bobby E. Pelmore; Juan M.

Pena; Milton Petties; Rodney C. Pitre; David R.

B-24

Potter; Frances Prince, as Personal Representative

and/or as a statutory heir of the Estate of Earnest

Prince, Deceased; Larry W. Prince; Donald G.

Quarles, Sr.; Thomas L. Quarles; Elyne Rackel, as

Personal Representative and/or as a statutory heir of

the Estate of Elmo E. Rackel, Deceased; Jimmy D.

Ray; Douglas B. Reynolds; Bonnie Richards, as

Personal Representative and/or as a statutory heir of

the Estate of James Richards, Deceased; Dwight B.

Richardson; Eugene C. Richardson; Lindall Roark;

Jackie C. Robertson; Ignacio Rodriguez; Elmer T.

Rogerson; Frances Ross, as Personal Representative

and/or as a statutory heir of the Estate of Albert

Ross, Deceased; Reberto S. Saldivar; Raymond C.

Sauceda; James Savoie; Leon P. Savoy; Douglas W.

Scott; Don E. Simmang; Leon Singleton; Elvin

Skinner; Gregory J. Smith; Sydney Smith, Jr.; Willie

F. Smith, Sr.; Federico Soto, Sr.; Carlton J. Soularie;

Cloussy J. Soularie, Jr.; Cloussy Soularie., Sr-.;

Clarence L. Spann; Ardis Stanley; Anthony W.

Stephens; Ricky Stephens; Jerry W. Stickman;

Clifford R. Stoot; George Tate; Raymond Tate;

Wardell Taylor; Joseph L. Thibodeaux; John H.

Thompson; Robert Thompson, Jr.; Michael R.

Tillmon, Anthony Torres, Jr.; Alfredo D. Tovar;

Richard Tunwar; Kenneth R. Tuttle; Curtis

Vanschoubroek; Lois M. Walker, as Personal

Representative and/or as a statutory heir of the

Estate of British L. Walker, Sr., Deceased; Carolyn

Walker, as Personal Representative and/or as a

statutory heir of the Estate of Jack P. Walker,

Deceased; Jessie Walker, Jr.; Wilburn R. Wallace;

Lena Johnson, as Personal Representative and/or as

statutory heir of the Estate of Clifton Washington,

B-25

Deceased; Lavern Washington; Charles B.

Weatherspoon; Jessie James Weeks; Charlotte

Currie, as Personal Representative and/or as a

statutory heir of the Estate of Richard D.

Whitsenant, Deceased; Stanley Whitaker; Al J.

Williams; Earl H. Williams; Ivory Williams; John H.

Williams; Joseph E. Williams; Alfreda Levine-

Williams, as Personal Representative and/or as a

statutory heir of the Estate of Ronald J, Williams,

Deceased; Wallace Williams; Walter Williams, III;

Willie D. Williams; Clarence A. Willis; Charles

Willridge; M. T. Wilson, Jr.; Clarence J. Wiltz; Cherie

Winfrey, as Personal Representative and/or as a

statutory heir of the Estate of Clifford Winfrey,

Deceased; Arnett Wrencher; Clifton Wyatt, Sr.;

Tilman Zackery, Jr.; Joe D. Zamora; and Clarence

Zenon, Jr.

APPENDIX C

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APPENDIX E

E-|

45 U.S.C.A. § 51

§ 51. Liability of common carriers by railroad,

in interstate or foreign commerce, for injuries

to employees from negligence; employee

defined:

Every common carrier by railroad while engaging

in commerce between any of the several States or

Territories, or between any of the States and

Territories, or between the District of Columbia and

any of the States or Territories, or between the

District of Columbia or any of the States or

Territories and any foreign nation or nations, shall

be liable in damages to any person suffering injury

while he is employed by such carrier in such

commerce, or, in case of the death of such employee,

to his or her personal representative, for the benefit

of the surviving widow or husband and children of

such employee; and, if none, then of such employee's

parents; and, if none, then of the next of kin

dependent upon such employee, for such injury or

death resulting in whole or in part from the

negligence of any of the officers, agents, or

employees of such carrier, or by reason of any defect

or insufficiency, due to its negligence, in its cars,

engines, appliances, machinery, track, roadbed,

works, boats, wharves, or other equipment.

Any employee of a carrier, any part of whose

duties as such employee shall be the furtherance of

interstate or foreign commerce; or shall, in any way

directly or closely and substantially, affect such

commerce as above set forth shall, for the purposes

of this chapter, be considered as being employed by

E-2

such carrier in such commerce and shall be

considered as entitled to the benefits of this chapter.

APPENDIX F

F-1]

NO. 2000-38068

IN THE DISTRICT COURT OF

HARRIS COUNTY, TEXAS

295TH JUDICIAL DISTRICT

CLARENCE ABRAHAM, et al.

Vv.

UNION PACIFIC RAILROAD

COMPANY

ORDER GRANTING MOTION FOR

SUMMARY JUDGMENT

After considering and hearing Union Pacific

Railroad Company’s Motion for Summary Judgment

on Medical Causation as to all Plaintiffs and

Intervenors, this Court, deems that the motion is

meritorious and having considered the motion, the

response, and all of the credible and proper evidence

presented, and arguments of counsel, finds that the

Motion should be granted in its entirety.

IT IS THEREFORE ORDERED that all claims

asserted by all Plaintiffs and Intervenors are

DISMISSED WITH PREJUDICE.

SIGNED this the 7" day of April, 2006.

/s/_ = TRACY CHRISTOPHER

HONORABLE JUDGE PRESIDING

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.