U.S. Court of Appeals Bars Injured Railroad Workers’ Medical Expert at Trial

Shannon Brown sued the Burlington Northern Santa Fe Railway Co. under the Federal Employers’ Liability Act, 45 U.S.C. Section 51, et seq. Brown started as a laborer and worked his way to foreman, track inspector and machine operator by 2009.

In 2007, he was diagnosed with carpal tunnel syndrome in both wrists and cubital tunnel syndrome of the left elbow. In October 2007, Brown suffered a right shoulder injury but was pain-free in December 2007. In 2007 and 2008, Brown had carpal tunnel surgery to both of his wrists. In 2009, he underwent surgery on his left elbow. In January 2010, Brown returned to work without any medical restrictions. In September 2011, he left his employment at the railroad.

Brown filed a lawsuit in 2009 claiming that the cumulative trauma caused his wrists, elbow and shoulder injuries. During discovery, Brown hired Dr. David Fletcher to serve as his expert witness to give his medical opinion that the railroad caused his injuries. Dr. Fletcher graduated from Rush Medical College in Chicago, obtained a master’s degree in public health and was a fellow in the American College of Occupational and Environmental Medicine. He was also an assistant professor at the University of Illinois and one of two doctors serving on the Illinois Workers’ Compensation Commission.

Dr. Fletcher submitted four expert reports. The essence of the reports was that Brown had no history of smoking, diabetes or health problems; Brown worked 12-16 hours a day and repeatedly lifted 100 pounds from the floor and 50 pounds over his head. His opinion was that Brown used hydraulic and vibratory machine tools.

In Dr. Fletcher’s opinion, Brown had lost strength in his left elbow and had nerve irritation. He also opined that an MRI would be necessary to diagnose the shoulder injury. Brown had a pacemaker and so did not have an MRI or arthroscopic procedure to confirm a shoulder injury. Dr. Fletcher reported permanent loss of function and the need for permanent job restrictions because of Brown’s job. Dr. Fletcher opined that Brown suffered “cumulative trauma disorder” from repetitive use of force over time, concluding that the “process of differential etiology” ruled out all causes except Brown’s railroad work.

At Dr. Fletcher’s deposition he admitted that he did not perform the job site analysis stated in his report. He merely photographed Brown in the railyard holding tools as the railroad company would not allow him to do an analysis. The U.S. District Court judge barred Dr. Fletcher’s testimony under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and granted BNSF’s motion for summary judgment.

The 7th Circuit Court of Appeals affirmed the decision and in an opinion written by Justice John Daniel Tinder held that Dr. Fletcher failed to follow his own methods, his differential etiology and therefore his opinion was not reliable under Daubert.

The court of appeals set out the reliability test for expert opinion:

“A district court’s decision to exclude expert testimony is governed by federal rules of evidence 702 and 703, as construed by the Supreme Court in Daubert. Rule 702(c) requires that an expert’s testimony be “the product of reliable principles and methods.’ Similarly, Rule 703 requires the expert to rely on ‘facts or data,’ as opposed to subjective impressions. Daubert’s four factors are (1) whether the expert’s conclusions are falsifiable; (2) whether the expert’s method has been subject to peer review; (3) whether there is a known error rate associated with the technique; and (4) whether the method is generally accepted in the relevant scientific community.”

In this case, it was found that Dr. Fletcher chose not to personally observe Brown’s working conditions. He did not obtain a written work description or perform scientific tests. The factual deficiencies or discrepancies the district court identified are the result of Dr. Fletcher’s faulty methods and lack of investigation. The district court did not exceed its role under Daubert.

Because Dr. Fletcher could not rule out causes other than the railroad work, Judge Tinder stated:

“The district court did not abuse its discretion in finding that Brown’s motorcycle riding and volunteer firefighting were obvious potential alternative causes for his injury. The causal link Dr. Fletcher drew between Brown’s job and his injuries lay in the presence of vibratory and other types of equipment that can harm elbows, wrists and shoulders over time. But the handlebars of a running motorcycle obviously vibrate, and firefighters must frequently struggle with heavy equipment. Brown’s weight, history of smoking and medical history factors combined with either the volunteer firefighting or motorcycle riding (or both) could have been wholly responsible for Brown’s condition.”

Explaining Brown’s inadequate opinion, the court also stated:

“The doctor disregarded Brown’s motorcycle riding as a factor because he assumed Brown worked for longer periods that he rode. Even worse, he did not know the duration or frequency of Brown’s exposure to vibrations at work.”

Dr. Fletcher’s inadequate testing neither “ruled in” Brown’s railroad work nor “ruled out” other sources of his injury.

In fact, the court went on to say that Dr. Fletcher’s failure to rule out Mr. Brown’s other obvious potential causes of his injuries was part of the problem. The doctor also chose not to rule in Brown’s workplace activity as a potential cause of his condition.

Further, Dr. Fletcher did not consider job duties as they changed over time. Brown had different jobs as he worked from his way up from a foreman, track inspector and machine operator. Dr. Fletcher noted that his method as reported required him to do a job site analysis which he didn’t do. Accordingly, the court of appeals concluded that the district court properly barred Dr. Fletcher’s testimony and granted summary judgment in favor of BNSF. The court found that Dr. Fletcher’s opinions were unreliable under Daubert.

Brown v. Burlington Northern Santa Fe Railway Co., 765 F.3d 765 (7th Cir. 2014).

Kreisman Law Offices has been handling work injury cases, construction site accident cases, truck accident cases, forklift accident cases and car accident cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 38 years in and around Chicago, Cook County and its surrounding areas, including Blue Island, Harvey, Calumet City, Wilmette, Winnetka, Waukegan, Joliet, Romeoville, Bolingbrook, Arlington Heights, Chicago (Garfield Park, Lawndale, Little Village, Canaryville, Bridgeport, Hyde Park, Jackson Park, East Side, South Chicago, Pill Hill, Calumet Heights, Washington Park, Wicker Park, Humboldt Park, Polish Village, Little Italy, Lincoln Square, Edgewater, Rogers Park, Pulaski Park, Edgebrook, Norwood Park, Edison Park, Bronzeville, Greek Town, Beverly, Roscoe Village, South Shore, West Loop, Wrigleyville, Chinatown, Lincoln Park), Glencoe, Morton Grove and Norwood Park, Ill.