COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-17-00168-CV
BNSF RAILWAY COMPANY APPELLANT (INDIVIDUALLY AND AS SUCCESSOR-IN-INTEREST TO THE BURLINGTON NORTHERN, INC., BURLINGTON NORTHERN & SANTA FE RAILWAY COMPANY AND ATCHISON TOPEKA AND SANTA FE RAILWAY COMPANY)
V.
LEONARD A. BACA APPELLEE
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FROM THE 48TH DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 048-267301-13
MEMORANDUM OPINION1
1 See Tex. R. App. P. 47.4. In this permissive interlocutory appeal involving a claim under the Federal
Employers Liability Act (FELA), Appellee Leonard A. Baca alleges that while
working for Appellant BNSF’s predecessor in interest, he was exposed to
asbestos, causing him to develop asbestosis. See 45 U.S.C.A. §§ 51–60 (West
2007). Baca retained as an expert Dr. Alvin Schonfeld, a pulmonologist, who
provided a report in which he concluded Baca’s asbestosis was causally related
to his exposure to asbestos during his employment. BNSF moved to exclude Dr.
Schonfeld’s causation opinion as inadmissible because it was unreliable under
well-established caselaw.2 The trial court denied the motion but also granted
permission in its order for BNSF to immediately appeal, finding that the order
involved a controlling question of law as to which there is a substantial ground for
difference of opinion and an immediate appeal from the order would materially
advance the ultimate termination of this litigation. See Tex. Civ. Prac. & Rem.
Code § 51.014(d) (West 2017); Tex. R. Civ. P. 168.
BNSF filed a petition for permissive appeal, which we granted. See BNSF
Ry. Co. v. Baca, No. 02-17-00168-CV, 2017 WL 2570826, at *1 (Tex. App.—Fort
Worth June 14, 2017, no pet.) (mem. op. & order). The controlling question of
2 Included among the cases BNSF cited were Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993); Borg-Warner Corp. v. Flores, 232 S.W.3d 765 (Tex. 2007); Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997); and E.I. DuPont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995).
2 law the trial court identified and ruled upon in its order, and the sole issue in this
appeal, is
whether the Federal Employers Liability Act’s (45 U.S.C. §§ 51-60) lower causation standard—i.e., whether a railroad’s negligence played any part, even the slightest, in bringing about the injury— makes inapplicable the expert admissibility standards expressed in cases like E.I. DuPont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995) and Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997).
We answer no. Because the trial court denied BNSF’s motion to exclude based
on the opposite conclusion, we reverse the trial court’s order and remand this
case for further proceedings.
I. BACKGROUND FACTS3
FELA makes any railroad engaged in interstate commerce liable in
damages for an injury to or death of an employee sustained while employed by
the railroad if the injury or death resulted in whole or in part from the negligence
of the railroad’s employees or by reason of any defect or insufficiency in its
equipment due to its negligence. See 45 U.S.C.A. § 51; Union Pac. R.R. v.
Williams, 85 S.W.3d 162, 165 (Tex. 2002). To prevail on a FELA claim, a plaintiff
must establish the traditional common-law elements of negligence: duty, breach,
3 Baca has filed a motion to dismiss in which he argues in part that this court lacks jurisdiction over this permissive interlocutory appeal because the issue BNSF has presented for review in its appellant’s brief materially differs from the issue it presented in its petition for permissive appeal and which the trial court granted it permission to appeal. Accordingly, we set forth in detail the factual and procedural background of this appeal, that we may appropriately address Baca’s jurisdictional argument.
3 foreseeability, and cause-in-fact. See Tufariello v. Long Island R.R., 458 F.3d
80, 87 (2d. Cir. 2006); Abraham v. Union Pac. R.R., 233 S.W.3d 13, 17 (Tex.
App.—Houston [14th Dist.] 2007, pet. denied). But a plaintiff’s burden to
establish a railroad’s liability under FELA is lighter than it would be in an ordinary
negligence case because FELA prescribes a relaxed standard of causation. See
Lynch v. Ne. Reg’l Commuter R.R., 700 F.3d 906, 911 (7th Cir. 2012); Abraham,
233 S.W.3d at 17. Under that relaxed causation standard, a plaintiff is entitled to
prevail on a FELA claim if the railroad’s negligence played any part, even the
slightest, in producing the injury or death for which damages are sought. See
CSX Transp., Inc. v. McBride, 564 U.S. 685, 688, 705 (2011); BNSF Ry. Co. v.
Nichols, 379 S.W.3d 378, 382 (Tex. App.—Fort Worth 2012, pet. denied). This
relaxed causation standard is often referred to as a “featherweight” standard.
See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406 (Tex. 1998).
A. BACA’S FELA CLAIM
Baca sued BNSF alleging a claim under FELA.4 His theory of liability is
straightforward: he claims that his exposure to toxic substances and dusts,
including asbestos and asbestos-containing products and materials, while in the
course of his employment with BNSF caused him to develop asbestosis.
Because whether a causal connection exists between a person’s exposure to a
chemical and a disease from which he suffers is outside the common knowledge
4 Baca also alleged claims for negligence per se and negligent infliction of emotional distress. Those claims are not at issue in this appeal.
4 and experience of lay persons, expert testimony is generally required to prove
such a causal connection. See Guevara v. Ferrer, 247 S.W.3d 662, 665 (Tex.
2007); Abraham, 233 S.W.3d at 18; Pilgrim’s Pride Corp. v. Smoak, 134 S.W.3d
880, 893–94 (Tex. App.—Texarkana 2004, pet. denied). Baca retained Dr.
Schonfeld to do just that.
B. DR. SCHONFELD’S REPORT
Dr. Schonfeld is a pulmonologist whose qualifications to make an opinion
as to whether Baca’s exposure to asbestos during his employment with BNSF
caused him to develop asbestosis are not at issue. In support of his claim, Baca
produced a report from Dr. Schonfeld, in which Dr. Schonfeld summarized his
opinion concerning that question.
Dr. Schonfeld’s report states that he interviewed and examined Baca. The
report sets forth the history of Baca’s exposure to asbestos, which was relayed to
Dr. Schonfeld by Baca. According to the report, Baca’s working career has
almost exclusively been as a railroad worker. Baca was laid off from the railroad
in approximately 1965, so for a few months he worked for the Arizona Highway
Department, where he used asbestos gloves when removing hot objects from a
stove. But other than those few months in 1965, the report says, Baca worked
for the railroad from 1964 to 1996.
Baca told Dr. Schonfeld that on an intermittent basis for about six months
in 1964, he helped demolish a roundhouse in Winslow, Arizona, and he would
sweep up asbestos without the use of a mask or respirator. Baca also told Dr.
5 Schonfeld that he rode on diesel engines that had asbestos in the ceiling and
that the asbestos dust would fall on him. Dr. Schonfeld further stated that Baca
remembered asbestos was in the brake hoses and that for about six months, he
fired the asbestos-clad steam generator on the diesel passenger units and
performed repairs on the steam generator on an as-needed basis. Baca further
told Dr. Schonfeld that he worked in refrigerator cars that were lined with
asbestos and that he would clean them out and sweep up asbestos. Finally,
Baca told Dr. Schonfeld that he was present while other employees were
changing brake shoes and that he was in other places where employees were
working on and repairing the railroad’s rolling stock.
Dr. Schonfeld noted that Baca had never smoked. He performed a
physical examination on Baca, which revealed that his lungs “were clear to
auscultation and percussion.” He also noted a report from Dr. Donald Breyer,
who on August 30, 2011, had done a B-reading of a chest x-ray that had been
performed on Baca on August 16, 2011.5 Dr. Schonfeld relayed Dr. Breyer’s
findings, stating Dr. Breyer concluded the x-ray showed irregular interstitial
infiltrates in both mid- and lower-lung zones having a “shape and size of s/s and
a profusion of 1/0” and that Dr. Breyer had not noted any pleural abnormalities.
Dr. Schonfeld also noted that Baca had undergone pulmonary function tests in
2012 and that the results were normal.
5 Baca also designated Dr. Breyer, a board-certified diagnostic radiologist and a certified ILO “B” Reader, as an expert.
6 Based upon all of this information, Dr. Schonfeld concluded as follows:
Given [Baca’s] history of significant exposures to asbestos in the workplace and given an appropriate latency and given the roentgenographic findings described above, I feel with a reasonable degree of medical certainty that Mr. Baca is diagnosed as having bilateral asbestosis. I feel with a reasonable degree of medical certainty that this diagnosis is causally related to his workplace exposures to asbestos as noted above.
BNSF subsequently filed a motion to exclude Dr. Schonfeld’s causation opinion.
II. PROCEDURAL BACKGROUND
A. BNSF’S MOTION TO EXCLUDE
In its motion to exclude, BNSF argued that Dr. Schonfeld’s causation
opinion was inadmissible because it was unreliable.6 See Daubert, 509 U.S. at
589 (stating Rule 702 of the Federal Rules of Evidence requires “that any and all
scientific testimony or evidence admitted is not only relevant, but reliable”);
Robinson, 923 S.W.2d at 550, 556–57 (holding Rule 702 of the Texas Rules of
Evidence requires the same). It advanced two grounds for why that opinion was
unreliable. First, BNSF argued Dr. Schonfeld’s causation opinion was not based
on a reliable evidentiary foundation. Second, it argued that Dr. Schonfeld’s
methodology was unreliable. In making these two arguments, BNSF
acknowledged FELA’s featherweight causation standard. But it asserted that
FELA, though relaxing the standard of causation relative to a common-law
negligence claim, does not similarly relax the procedural standards for
BNSF did not contend that Dr. Schonfeld’s opinion was inadmissible 6
because it was irrelevant.
7 determining the threshold issue of whether an expert’s causation opinion is
admissible. Thus, even though this is a FELA case, BNSF argued, Dr.
Schonfeld’s causation opinion must meet state procedural requirements for
reliability to be admissible, including the requirements of Daubert and Robinson.
See Kan. City S. Ry. Co. v. Oney, 380 S.W.3d 795, 800 (Tex. App.—Houston
[14th Dist.] 2012, no pet.) (“As a general matter, FELA cases adjudicated in state
courts are subject to state procedural rules, but the substantive law governing
them is federal.” (quoting St. Louis Sw. Ry. Co. v. Dickerson, 470 U.S. 409, 411
(1985))).
Having argued that the trial court was required to apply state procedural
standards of reliability to Dr. Schonfeld’s opinion, BNSF then discussed the
standards it believed apply in this case. Citing Austin v. Kerr-McGee Refining
Corp., 25 S.W.3d 280, 292 (Tex. App.—Texarkana 2000, no pet.), it noted that a
plaintiff in a toxic tort case must establish both general and specific causation.
BNSF focused on specific causation in particular, citing Havner, 953 S.W.2d at
714, for the proposition that “[s]pecific causation asks whether the substance at
issue caused a particular plaintiff’s injury.” It pointed to caselaw noting that
asbestosis appears to be a dose-related disease, meaning “the more one is
exposed, the more likely the disease is to occur, and the higher the exposure the
more severe the disease is likely to be.” Borg-Warner, 232 S.W.3d at 771
(quoting 3 David L. Faigman et al., Modern Scientific Evidence: The Law and
Science of Expert Testimony § 28:22, at 447 (2007)). And it also asserted that
8 medical science has established that mere background levels of exposure to
asbestos are not sufficient to cause disease; rather, pointing in part to Borg-
Warner, 232 S.W.3d at 771, BNSF stated, “[t]he accepted threshold exposure for
developing asbestosis is at least 4-5 fiber years (f/cc years), and more likely 25
to 100 fiber years.”
With the foregoing in view, BNSF turned to discuss Daubert and
Robinson’s reliability standards. It first contended Daubert and Robinson require
expert testimony to be based upon a reliable evidentiary foundation. And in the
context of an asbestosis case, BNSF argued, evidence of the amount—or
dose—of asbestos the plaintiff was exposed to is a necessary evidentiary
foundation for an expert to reliably opine that the plaintiff’s exposure to asbestos
caused him to develop asbestosis because without knowing the dose, an expert
has no reliable basis upon which to conclude that the plaintiff’s exposure to
asbestos met or exceeded the scientifically-accepted exposure threshold that is
necessary to cause that disease. To support that contention, BNSF relied on
Borg-Warner, 232 S.W.3d at 773, as well as Abraham, 233 S.W.3d at 21, in
which one of our sister courts stated that “[k]nowledge of the extent of exposure
to a potentially harmful substance is essential to any reliable expert opinion that
the particular substance caused a disease.”
Second, BNSF contended Daubert and Robinson require the methodology
underlying the expert’s testimony to be reliable. See Daubert, 509 U.S. at 592–
93; Robinson, 923 S.W.2d at 557. Conducting that inquiry, BNSF argued,
9 requires the trial court to consider whether the expert’s methodology (1) has
been subjected to peer review and publication, (2) has a high known or potential
rate of error, (3) has standards controlling its operation, and (4) enjoys general
acceptance within a relevant scientific community. See Daubert, 509 U.S. at
593–94; Robinson, 923 S.W.2d at 557. Pointing to Havner, 953 S.W.2d at 715,
BNSF acknowledged that in a toxic-tort case such as this one, a plaintiff simply
may not be able to obtain reliable, direct evidence of the amount of the plaintiff’s
exposure to the toxin. But again pointing to Havner, 953 S.W.2d at 720, BNSF
stated that in such cases, the expert can utilize epidemiological studies to
circumstantially establish that the plaintiff’s exposure or dose levels were
comparable to or greater than the levels of the subjects in those studies, but the
expert must exclude any other plausible causes of the plaintiff’s injury or
condition with reasonable certainty.
BNSF then argued that Dr. Schonfeld’s opinion did not satisfy either of
these two reliability requirements.
B. BACA’S RESPONSE
In response to BNSF’s motion, Baca acknowledged that because he
brought his FELA claim against BNSF in state court, the trial court was required
to apply federal substantive law but state procedural law in considering BNSF’s
motion. He also acknowledged that decisions concerning the relevance and,
consequently, the admissibility of expert testimony are generally based upon
procedural rules of evidence. However, Baca argued, whether an expert’s
10 testimony is relevant and, therefore, admissible is a question that necessarily
depends upon the causation standard that applies to the claim under
consideration. Citing Brown v. Western Railway of Alabama, 338 U.S. 294, 298
(1949), Baca maintained that state procedural rules cannot be applied in such a
way as to impose unnecessary burdens upon the rights of recovery authorized by
FELA and argued that FELA’s featherweight causation standard should
“significantly influence a determination of the admissibility of an expert’s
causation testimony.”
Baca argued that FELA’s featherweight causation standard impacted state
procedural standards governing the admissibility of expert testimony in two ways.
First, Baca argued, FELA’s lower causation standard rendered Borg-Warner and
Havner wholly inapplicable in FELA cases. Second, Baca insisted that given
FELA’s featherweight causation standard, the admissibility standards set forth in
Daubert and Robinson are relaxed in FELA cases such that the trial court should
more leniently apply Daubert and Robinson to expert testimony in a FELA case
than it would in a non-FELA case.
C. THE TRIAL COURT’S RULING
The trial court considered BNSF’s motion to exclude by submission. On
January 20, 2017, the trial court issued a letter ruling indicating that it had denied
the motion. Additionally, in the letter, the trial court explained the basis of its
ruling: it stated that in denying the motion, it “went with the plaintiff on the issue
of the application of FELA causation standards to . . . Dr. Schonfeld’s opinion on
11 causation.” The trial court ultimately signed an order denying BNSF’s motion to
exclude and granting it permission to seek a permissive interlocutory appeal
because it found the order involved a controlling question of law as to which
there is substantial ground for difference of opinion and an immediate appeal
would materially advance the ultimate termination of this litigation. In pertinent
part, the trial court’s order provides,
The controlling question of law as to which there is substantial ground for difference of opinion is whether the Federal Employers Liability Act’s (45 U.S.C. §§ 51-60) lower causation standard—i.e. whether a railroad’s negligence played any part, even the slightest, in bringing about the injury—makes inapplicable the expert admissibility standards expressed in cases like E.I. DuPont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995) and Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997). The Court answered this question in the affirmative, holding that FELA’s lower causation standard contemplates a lower admissibility threshold for causation evidence.
An immediate appeal of this interlocutory Order would materially advance the ultimate termination of this litigation because the Court’s ruling allows the jury to consider causation evidence that would otherwise be excluded. The answer to this question, therefore, determines whether this case may be resolved without a trial on the merits.
D. BNSF’S PETITION FOR PERMISSIVE APPEAL AND BACA’S RESPONSE
BNSF subsequently filed a petition for permissive appeal. In its petition,
BNSF stated that the sole issue it was presenting for appeal was “[w]hether
FELA’s lower causation standard—i.e., whether a railroad’s negligence played
any part, even the slightest, in bringing about the injury—makes Texas’s expert
admissibility standards inapplicable?”
12 At our request, Baca filed a response to BNSF’s petition. In his response,
Baca stated that he agreed that the trial court’s order met the jurisdictional
standard for a permissive appeal set forth in civil practice and remedies code
section § 51.014(d), but he stated that he disagreed “with the way in which the
issue has been framed by both the trial court and BNSF” because the way the
trial court and BNSF had framed the issue for permissive review did not “fully
encompass the nature of the legal issues which are implicated by this appeal.”
Baca suggested his own phrasing of the question presented for review, a
phrasing that he believed more accurately reflected the issue presented in this
appeal: “Whether the FELA’s lower causation standard—i.e. whether a railroad’s
negligence played any part, even the slightest, in bringing about the injury—may
be modified by applying state expert admissibility rules to impose a higher
causation standard.” Baca then concluded by stating he did not “oppose
interlocutory review of the issue raised by this appeal” but that he requested that
we “grant review on the issue as [he had] more accurately presented it” in his
response.
We then granted BNSF’s petition for permissive appeal. See Baca,
2017 WL 2570826, at *1.
III. JURISDICTION
In conjunction with filing his appellee’s brief, Baca filed a motion to dismiss,
challenging this court’s jurisdiction over this appeal. Baca argues we lack
jurisdiction for two reasons. First, he argues that this appeal no longer involves a
13 controlling question of law as to which there is a substantial ground for difference
of opinion. See Tex. Civ. Prac. & Rem. Code § 51.014(d). And second, Baca
contends this court has already concluded that it is not proper to review by
permissive, interlocutory appeal a trial court’s decision whether to exclude an
expert’s opinion as insufficiently reliable under Robinson. See Blakenergy, Ltd.
v. Oncor Elec. Delivery Co., No. 02-14-00241-CV, 2014 WL 4771736, at *1 (Tex.
App.—Fort Worth Sept. 25, 2015, no pet.) (mem. op.). Neither of these
arguments is persuasive.
A. APPLICABLE LAW
We have jurisdiction to consider a permissive, interlocutory appeal by
virtue of a statutorily authorized exception to the general rule that we have
jurisdiction over final judgments only. See Tex. Civ. Prac. & Rem. Code Ann.
§ 51.014(d); Eagle Gun Range, Inc. v. Bancalari, 495 S.W.3d 887, 889 (Tex.
App.—Fort Worth 2016, no pet.). Under that exception, we may permit an
appeal from an interlocutory order that otherwise would not be immediately
appealable if (1) the order involves a controlling question of law as to which there
is a substantial ground for difference of opinion and (2) an immediate appeal
from the order will materially advance the ultimate termination of the litigation.
Tex. Civ. Prac. & Rem. Code Ann. § 51.014(d), (f).
14 B. A CONTROLLING QUESTION OF LAW RESOLVED BY THE TRIAL COURT REMAINS AT ISSUE
We first address Baca’s argument that this appeal no longer involves a
controlling question of law. As Baca reads it, the trial court’s order involves only
a very narrow controlling question of law: whether one specific Texas case—
Havner—applies to a FELA claim. He gets to this reading by stating that he has
conceded Robinson applies to a FELA claim. Baca maintains that having so
conceded, there is no “substantial disagreement” between the parties as to
whether Robinson applies. Therefore, argues Baca, since Havner is the only
other case referenced in the trial court’s order, the trial court’s order only involves
the narrow controlling question of law of whether Havner applies to a FELA
claim. With that premise in place, Baca turns to BNSF’s appellant’s brief,
contending that BNSF did not argue in its brief that Havner applies to a FELA
claim; it only argued that Robinson does. Baca reasons that because he agrees
Robinson applies to a FELA claim and BNSF has not argued that Havner does,
this appeal no longer involves a controlling question of law.
Baca’s argument is based entirely on the assumption that the controlling
question of law involved in the trial court’s order is the narrow question of
whether two specific Texas cases—Robinson and Havner—apply in a FELA
case. But that is not so. From the face of the trial court’s order and the record, it
is clear that the controlling question of law involved in the trial court’s order is not
the narrow question of whether Robinson and Havner, exclusively, are applicable
15 in determining the admissibility of an expert’s causation opinion in a FELA case.
Rather, the controlling question of law involved in the trial court’s order is the
broad question of whether FELA’s lower causation standard also lowers the
admissibility threshold of causation evidence in a FELA case such that the expert
admissibility standards expressed in cases like Robinson and Havner are
inapplicable in determining the admissibility of an expert’s causation opinion in a
FELA case.
1. The Plain Language of the Order
We start with the language of the trial court’s order. In relevant part, the
order states:
The controlling question of law as to which there is substantial ground for difference of opinion is whether the [FELA’s] lower causation standard—i.e. whether a railroad’s negligence played any part, even the slightest, in bringing about the injury—makes inapplicable the expert admissibility standards expressed in cases like [Robinson] and [Havner]. The Court answered this question in the affirmative, holding that FELA’s lower causation standard contemplates a lower admissibility threshold for causation evidence.
The trial court’s order does not say that the controlling question of law involved in
its order was whether FELA’s causation standard makes Robinson and Havner
inapplicable in a FELA case. Nor does the order say that the controlling question
of law was whether FELA’s causation standard makes the admissibility standards
expressed in Robinson and Havner inapplicable in a FELA case. Both of these
formulations would have limited the controlling question of law involved in the trial
16 court’s order to a question of the applicability of Robinson and Havner,
specifically. Yet the trial court’s order used neither formulation.
Instead, the language in the trial court’s order states the controlling
question of law as “whether the [FELA’s] lower causation standard . . . makes
inapplicable the expert admissibility standards expressed in cases like
[Robinson] and [Havner].” (Emphasis added). The phrase “expressed in cases
like [Robinson] and [Havner]” is a modifier that clarifies the phrase preceding it—
“expert admissibility standards.” Examining the language of that modifying
phrase, the placement of the words “cases like” before “[Robinson] and [Havner]”
makes plain that the controlling question of law in the trial court’s order is not
limited to whether Robinson and Havner, specifically, are applicable. To read the
order as involving only the applicability of Robinson and Havner, as Baca does,
is to entirely erase the words “cases like” from the trial court’s order. So the
order involves the applicability of “the expert admissibility standards expressed in
cases like Robinson and Havner,” not the applicability of Robinson and Havner
exclusively.
This construction is confirmed by another portion of the trial court’s order
that Baca’s reading would also erase. After the portion stating the controlling
question of law, the very next sentence in the trial court’s order states, “The
Court answered this question in the affirmative, holding that FELA’s lower
causation standard contemplates a lower admissibility threshold for causation
evidence.” In this sentence, the trial court explains that it had decided that
17 [FELA’s] “lower causation standard . . . makes inapplicable the expert
admissibility standards expressed in cases like [Robinson] and [Havner].” And it
explained the sole reason why it had made that decision was its legal conclusion
that “FELA’s lower causation standard contemplates a lower admissibility
threshold for causation evidence.” That language confirms the trial court had
broadly ruled that FELA’s relaxed causation standard lowers Texas’s
admissibility threshold for causation evidence in a FELA case.
Thus, when all of the pertinent language in the trial court’s order is given
effect, it is clear that the controlling question of law on which the trial court ruled
is broader than the narrow question only of whether Robinson and Havner apply
in a FELA case. Rather, the trial court’s ruling was as follows: because FELA’s
lower causation standard contemplates a lower admissibility threshold for
causation evidence, FELA’s lower causation standard makes inapplicable the
expert admissibility standards expressed in cases like Robinson and Havner.
2. The Record
That the controlling question of law involved in the trial court’s order is not
limited to the narrow question of whether Robinson and Havner, specifically,
apply in a FELA case is also confirmed by the record.
In its motion to exclude, BNSF anticipated Baca would argue that “in light
of the causation standard under FELA, the standards for reliability and
admissibility of expert causation opinions should be relaxed.” BNSF maintained
18 that FELA’s relaxed causation standard does not relax the standards for
admissibility of expert causation opinions in a FELA case.
Baca indeed made the argument BNSF anticipated he would. In Section
V, Paragraph D of his response to BNSF’s motion, Baca argued that “[i]t is well
established that FELA’s featherweight causation standard should significantly
influence a determination of the admissibility of an expert’s causation testimony.”7
In Section V, Paragraph E of his response, Baca argued that “[t]he remedial
nature of FELA has a significant effect on the admissibility of expert testimony.”
He pointed to Hines as “the leading case on point,” stating that the Hines court
had held that “FELA[’s] relaxed standard of causation also relaxes the threshold
of admissibility for the reception of expert testimony.” Baca argued that because
of this relaxed admissibility standard, (1) Havner is inapplicable in a FELA case
and (2) Robinson “should be applied with a more lenient standard” in a FELA
case.8
For this “well established” proposition, Baca cited only one case: Hines v. 7
Consolidated Rail Corp., 926 F.2d 262, 269 (3d Cir. 1991). 8 As part of his argument for why this case no longer involves a controlling question of law, Baca argues that he agrees that Robinson applies to his FELA claim and that, therefore, there is no substantial disagreement between the parties as to the applicability of Robinson in this case. Not so. It is patently clear that the parties did disagree as to the applicability of Robinson to Dr. Schonfeld’s causation opinion. As we have noted, BNSF argued that Robinson’s admissibility standards apply the same in a FELA case as they do in a non-FELA case, whereas Baca argued that those standards apply differently—that is, “more lenient[ly]”—in a FELA case than in a non-FELA case.
19 The trial court considered BNSF’s motion by submission. Before signing
the order denying the motion, the trial court first sent a letter ruling to the parties
informing them of its decision. In the letter, the trial court explained that it had
decided to deny the motion and explained its reason for doing so, stating that it
“went with [Baca] on the issue of the application of FELA causation standards
to . . . Dr. Schonfeld’s opinion on causation.” The trial court referred the parties
to specific portions of Baca’s response to BNSF’s motion, telling them to “[s]ee
generally paragraph[s] D & E” of the response. The trial court additionally stated
that it “believe[d] this to be a ‘controlling question of law as to which there is
substantial ground for difference of opinion.’”
Thus, the record confirms that the parties disagreed over the broad
question of whether FELA’s lower causation standard lowers the threshold of
admissibility for expert causation testimony; that the trial court ruled in the
affirmative on that broad question; and that the trial court based its decision to
deny BNSF’s motion solely upon its resolution of that broad question.
Given the foregoing, we disagree with Baca’s argument that this appeal no
longer involves a controlling question of law, as well as with his argument that
BNSF’s appellant’s brief presents a controlling question of law that differs from
the one the parties presented to the trial court and which the trial court resolved.
C. BACA’S RELIANCE ON BLAKENERGY
Baca also notes that BNSF has argued only that Robinson applies to his
FELA claim; it has not argued that Dr. Schonfeld’s opinion fails to meet
20 Robinson’s admissibility standards. But he argues that, to the extent BNSF’s
appeal can be construed as presenting the issue of whether Dr. Schonfeld’s
opinion satisfies Robinson’s admissibility standards, this court has already
determined it is not appropriate to review by permissive appeal a “plain vanilla
expert challenge under Robinson”—that is, a trial court’s determination of
whether an expert’s testimony satisfies Robinson’s admissibility standards. See
Blakenergy, 2014 WL 4771736, at *1. He asks us to follow our precedent in
Blakenergy and dismiss this appeal.
Assuming Baca’s characterization of our decision in Blakenergy is correct,
we need not address this argument because this appeal does not present the
“plain vanilla expert challenge” of whether Dr. Schonfeld’s opinion satisfies
Robinson’s admissibility requirements.9 Rather, the trial court denied BNSF’s
motion to exclude based on its legal conclusion that because FELA’s
featherweight standard of causation “contemplates a lower admissibility threshold
for causation evidence,” state procedural standards governing the admissibility of
expert testimony “expressed in cases like [Robinson] and [Havner]” are
inapplicable in a FELA case. Thus, the sole issue in this appeal is a pure
question of law: whether FELA’s causation standard lowers the admissibility
threshold for causation evidence in FELA cases.
9 Because we need not address this argument, we express no opinion as to the merit of Baca’s characterization of this court’s denial of the petition for permissive appeal in Blakenergy. See id.
21 Because we are unpersuaded by Baca’s arguments that this appeal no
longer involves a controlling question of law, we deny his motion to dismiss.
IV. THE TRIAL COURT’S ERRONEOUS LEGAL CONCLUSION WAS AN ABUSE OF DISCRETION
In its sole issue, BNSF argues the trial court abused its discretion by
concluding that in a FELA case, FELA’s featherweight causation standard lowers
our state’s standards governing the admissibility of expert testimony.
A. STANDARD OF REVIEW
Even in a FELA case, a trial court’s evidentiary rulings, including its
decision whether to admit expert testimony, is subject to an abuse-of-discretion
standard of review. See Abraham, 233 S.W.3d at 17; Mo. Pac. R.R. v. Navarro,
90 S.W.3d 747, 750 (Tex. App.—San Antonio 2002, no pet.). Here, the trial court
based its decision to deny BNSF’s motion to exclude solely on its determination
of a pure question of law. A trial court has no discretion to make an erroneous
legal conclusion even in an unsettled area of law. In re United Scaffolding, Inc.,
301 S.W.3d 661, 663 (Tex. 2010) (orig. proceeding); In re Mo. Pac. R.R.,
998 S.W.2d 212, 216 (Tex. 1999). We review a trial court’s determination of a
pure question of law de novo, affording no deference to the trial court’s
conclusion. See RSI Int’l, Inc. v. CTC Transp., Inc., 291 S.W.3d 104, 107 (Tex.
App.—Fort Worth 2009, no pet.).
22 B. APPLICABLE LAW
As a general rule, when a plaintiff brings a FELA claim in state court, the
court applies federal substantive law and state procedural law. See Dickerson,
470 U.S. at 411; Oney, 380 S.W.3d at 800. But a state procedural rule may not
interfere with, lessen, or destroy any of the substantive rights afforded to the
plaintiff under FELA. See Brown, 338 U.S. at 298–99; Scott v. Atchison, Topeka
& Santa Fe Ry., 572 S.W.2d 273, 281 (Tex. 1978) (op. on reh’g); Oney,
380 S.W.3d at 800. Any state procedural rule that does so must yield. See
Brown, 338 U.S. at 298–99; Scott, 572 S.W.2d at 281; Oney, 380 S.W.3d at
799–800.
C. TEXAS’S PROCEDURAL STANDARDS APPLY
In accordance with the general rule that state courts apply state procedural
law in cases brought under a federal statute in state court, Texas courts apply
state rules of evidence when determining the admissibility of expert testimony in
FELA cases. See Nichols, 379 S.W.3d at 382 (“Although [appellees’] claim is
pursuant to [FELA], the trial court must follow state procedure in determining the
reliability of expert testimony.”); Abraham, 233 S.W.3d at 18 (“Despite the fact
that appellants assert a claim under the [FELA], the trial court must follow state
procedure in determining the reliability of expert testimony.”); Navarro, 90 S.W.3d
at 754–59 (applying state procedural rules in determining the admissibility of
expert testimony in a FELA case). Accordingly, as relevant here, in a FELA case
brought in state court, expert testimony must be reliable to be admissible. See
23 Nichols, 379 S.W.3d at 382 (citing Robinson, 923 S.W.2d at 556). This general
proposition is not in dispute here.
In the trial court, Baca argued that FELA’s featherweight causation
standard relaxes Texas procedural standards for determining the admissibility of
expert testimony regarding causation in a FELA case. The trial court agreed and
based its decision to deny BNSF’s motion to exclude solely on that legal
conclusion. BNSF argues that this conclusion is contrary to what the courts in
this state, the federal courts, and the courts in many other states have
recognized: the standard of causation under FELA and the standards for
admission of expert testimony under the applicable rules of evidence are distinct
issues that do not affect one another. Thus, BNSF argues, the trial court abused
its discretion by concluding that FELA’s featherweight causation standard relaxes
our state’s procedural standards for admissibility of expert testimony in a FELA
case.
1. Texas Authorities
BNSF is correct that two of our sister courts have squarely held that
FELA’s featherweight causation standard does not lower the threshold for
admissibility of expert testimony in a FELA case. The first to do so was the
Fourth Court of Appeals in Navarro. See 90 S.W.3d at 751. That case involved
a FELA claim in which the plaintiff alleged that her exposure to diesel exhaust
during her employment with the defendant railroad caused her to develop bone
marrow cancer. Id. at 749. On appeal, the railroad argued that the testimony of
24 the plaintiff’s causation experts should have been excluded because the
testimony was scientifically unreliable. Id. at 749. In addressing that argument,
the court acknowledged FELA’s lower burden of causation but noted that lower
burden had “not been generally applied to the admissibility of expert testimony” in
a FELA case and that “the Daubert standard of admissibility of expert evidence
[in a FELA case] 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.”10 Id. at 751
(internal quotation omitted). And in analyzing whether the challenged expert
causation testimony was unreliable, the court applied Texas’s standards. See id.
at 754–59.
The Fourteenth Court of Appeals followed suit in Abraham. See
233 S.W.3d at 17–20. That was a FELA case in which the plaintiffs alleged that
their exposure to creosote during their employment with the defendant railroad
caused them to suffer diseases of the throat, lungs, and skin, including cancer.
Id. at 16. The defendant railroad challenged the plaintiff’s expert’s causation
opinion on the ground that it was not scientifically reliable. Id. The court applied
state procedural standards in determining the reliability of the challenged expert
testimony. See id. at 18 (citing Robinson, 923 S.W.3d at 565). It agreed that the
standard of causation under FELA and the standards of expert testimony under
the rules of evidence are distinct issues and do not affect one another. See id. at
10 The court noted that our supreme court adopted Daubert in Robinson. See id. at 750.
25 19–20. And, consequently, it agreed that FELA’s featherweight causation
standard did not relax our state’s procedural standards governing the
admissibility of expert testimony such that courts must admit expert testimony in
FELA cases that would be inadmissible in other contexts. See id.
We also find the supreme court’s decision in In re GlobalSantaFe Corp.,
275 S.W.3d 477 (Tex. 2009) (orig. proceeding), instructive to our analysis. That
case involved a claim under the Jones Act, which provides for a cause of action
against the employer of a seaman who sustains an injury or death in the course
of his employment. See 46 U.S.C.A. § 30104 (West 2007); GlobalSantaFe,
275 S.W.3d at 479–80, 480 n.1. The Jones Act expressly incorporates FELA
and the case law developing that statute. See Ellis, 971 S.W.2d at 406; see also
46 U.S.C.A. § 30104. Thus, like FELA, the Jones Act establishes a
featherweight standard of causation. See Ellis, 971 S.W.2d at 406. And courts
therefore often look to caselaw applying FELA when analyzing claims under the
Jones Act. See Wills v. Amerada Hess Corp., 379 F.3d 32, 46–47, 47 n.9 (2d
Cir. 2004) (looking to FELA cases when analyzing whether the Jones Act’s
relaxed standard of causation lowered the standards for admissibility of expert
testimony under the rules of evidence); see also Lies v. Farrell Lines, Inc.,
641 F.2d 765, 770 (9th Cir. 1981) (noting that because the Jones Act expressly
incorporates FELA and case law developing that statute, the court could
“appropriately look to FELA cases to test the sufficiency of the allegations and
proof in this Jones Act claim”).
26 In GlobalSantaFe, the supreme court considered whether the Jones Act
preempted certain provisions of Chapter 90 of the civil practice and remedies
code, including section 90.004, which requires a plaintiff in silica cases to serve a
detailed expert report on each defendant. See 275 S.W.3d at 479–80; see also
Tex. Civ. Prac. & Rem. Code Ann. § 90.004 (West 2017). This provision, the
court said, “endeavors to assure that claims are not brought and pursued unless
they are supported by reliable expert evaluations of the claimant.”
GlobalSantaFe, 275 S.W.3d at 482. After discussing the general principles of
preemption in Jones Act cases, the court concluded that “[t]he requirements
embedded in Chapter 90 to assure reliable expert confirmation of silica-related
diseases are not preempted by the Jones Act.”11 See id. at 486.
In explaining its conclusion, the court discussed the standards governing
the admissibility of expert testimony. See id. at 486–87. In particular, it noted
that federal caselaw has developed standards for admission of expert testimony
that focus on the trial court’s role in determining the reliability of such testimony
and that Texas caselaw, drawing heavily from federal jurisprudence, had
developed similar standards. See id. It then discussed the issue of whether the
Jones Act’s featherweight causation standard affected the application of state
procedural rules governing the admission of expert testimony. The court said,
11 The court concluded, however, that the Jones Act preempts section 90.004(b)(2) because that provision “requires claimants in some cases to establish a minimal level of impairment,” which conflicts with the Jones Act. See id. at 483, 489.
27 To the extent that Jones Act jurisprudence recognizes a special standard for proving causation, federal cases have held that this causation standard does not exempt Jones Act cases from the general rules for admission of expert testimony. We see no basis for holding that Texas law generally governing the admission of expert testimony, which draws so heavily from federal law, is preempted by the Jones Act.
Id. (citations omitted). Thus, in GlobalSantaFe, the supreme court expressed
disapproval of the notion that a featherweight causation standard alters the
applicability of Texas law generally governing the admission of expert testimony.
2. Federal and State Authorities
The decisions in Navarro, Abraham, and GlobalSantaFe are in line with the
overwhelming weight of authority in the federal courts, as well as the courts in
other states. As BNSF has pointed out in its brief, several federal authorities
have held that a featherweight causation standard—whether under FELA or the
Jones Act—does not relax the threshold of admissibility for expert testimony.
See, e.g., Wills, 379 F.3d at 47 (noting that “the standards for determining the
reliability and credibility of expert testimony are not altered merely because the
burden of proof [under the Jones Act] is relaxed”); Claar v. Burlington N. R.R.,
29 F.3d 499, 503 (9th Cir. 1994) (“The standard of causation under FELA and the
standards for admission of expert testimony under the Federal Rules of Evidence
are distinct issues and do not affect one another.”); see also Taylor v. Consol.
Rail Corp., No. 96-3579, 1997 WL 321142, at *6–7 (6th Cir. June 11, 1997)
(unpublished table decision) (holding that the typical standards for determining
the admissibility of expert testimony “are not modified by the relaxed standard of
28 proof in FELA cases”); Cantrell v. BNSF Ry. Co., No. Civ 12-0129, 2013 WL
8632378, at *4 (D.N.M. June 28, 2013) (noting that the relaxed causation
standard under FELA and the standard for admission of expert testimony are
distinct issues that do not affect one another); Clements v. CSX Transp., Inc.,
No. 3:09-cv-122-TCB, 2011 WL 13136959, at *3 (N.D. Ga. Dec. 13, 2011)
(noting that if a plaintiff in a FELA case chooses to introduce expert testimony,
the trial court must apply the same admissibility analysis that applies in any other
case), amended in part on other grounds, 2012 WL 12897089 (N.D. Ga. Jan. 9,
2012). In addition, as BNSF observed in its brief, the courts in several states
have concluded that FELA’s relaxed burden of proof does not alter the
applicability of their state’s procedural standards governing the admissibility of
expert testimony. See, e.g., Smith v. CSX Transp., Inc., 806 S.E.2d 890, 893–94
(Ga. Ct. App. 2017); Smart v. BNSF Ry. Co., 369 P.3d 966, 971–72 (Kan. Ct.
App. 2016); see also Russell v. Ill. Cent. R.R., No. W2013-02453-COA-R3-CV,
2015 WL 4039982, at *2–3 (Tenn. Ct. App. June 30, 2015) (applying state
procedural rules in determining admissibility of expert testimony in FELA case);
McNeel v. Union Pac. R.R., 753 N.W.2d 321, 328–30 (Neb. 2008) (applying state
procedural standards governing admissibility of expert testimony in a FELA case
in the same manner as in other cases.).
Thus, in addition to the fact that several Texas courts have concluded that
a relaxed standard of causation does not relax our state’s procedural standards
governing the admissibility of expert testimony, there is a broad range of
29 authority from the federal courts and courts in other states holding that FELA’s
lower causation burden does not alter the applicable procedural standards
governing the admissibility of expert testimony.
3. Baca’s Authorities
In his appellee’s brief, Baca did not address the merits of the question
presented in this permissive appeal or the significant number of authorities BNSF
presented in support of its position on that question. Rather, he reurged some of
the arguments he made in his motion to dismiss this permissive appeal.12 Our
analysis above concerning those arguments is equally applicable here, and we
need not restate it. We note, however, that in his response to BNSF’s motion in
the trial court, Baca cited two cases that he argued supported his position that
FELA’s relaxed causation standard relaxed the threshold for admissibility of
expert testimony in this FELA case. We briefly address those cases.
In his response in the trial court, Baca argued that “[i]t is well established
that FELA’s featherweight causation standard should significantly influence a
determination of the admissibility of an expert’s causation testimony.” For this
proposition, he cited only one case: Hines v. Consolidated Rail Corp., 926 F.2d
262 (3rd Cir. 1991). Indeed, the court in that case concluded that the causation
12 That is, in his appellee’s brief, Baca argues that because he agrees that Robinson applies to his claim, and because BNSF has not specifically argued that Havner and Borg-Warner apply, “there is nothing further for this [c]ourt to consider[,] and this [c]ourt should affirm the trial court’s ruling on BNSF’s motion to exclude the expert opinions of Dr. Schonfeld.”
30 standard under FELA can significantly influence a determination of the
admissibility of expert testimony. Id. at 269. However, as our sister court
observed in Abraham, the Hines decision predates the Supreme Court’s seminal
decision in Daubert, which articulated standards for assessing the reliability of
expert testimony. Abraham, 233 S.W.3d at 18. And of course, our supreme
court subsequently adopted Daubert. See Robinson, 923 S.W.2d at 556–57. As
the cases we have discussed above demonstrate, since Daubert, Texas, federal,
and sister-state courts have consistently applied in FELA cases the same expert-
testimony admissibility standards they apply in non-FELA cases. We thus find
Hines unpersuasive. See Wills, 379 F.3d at 47 (declining to follow Hines and
holding that “Daubert’s standards for determining the admissibility of expert
testimony apply regardless of whether the plaintiff’s burden to prove causation is
reduced”); Abraham, 233 S.W.3d at 20 (concluding Hines was unpersuasive
because it was decided before Daubert and Robinson).
In his response in the trial court, Baca also argued that the Third Court’s
decision in Navarro and the Fourteenth Court’s decision in Abraham, both of
which concluded that FELA’s relaxed causation burden does not relax the
standards for admissibility of expert testimony, are “no longer the law in a FELA
case” after the Supreme Court’s decision in McBride. See McBride, 564 U.S.
685; Abraham, 233 S.W.3d at 19–20; Navarro, 90 S.W.3d 750–51. But McBride
was a jury-charge case concerning whether the trial court had erred by failing to
include a proximate-cause instruction in the jury charge. See 564 U.S. at 689–
31 90. The Court concluded it had not, holding that in FELA cases, juries “are
properly instructed that a defendant railroad ‘caused or contributed to’ a railroad
worker’s injury ‘if [the railroad’s] negligence played a part—no matter how
small—in bringing about the injury.’” Id. at 705. Thus, McBride did not deal with
the admissibility of expert testimony in FELA cases. And even after McBride,
courts have continued to recognize a distinction between FELA’s causation
standard and the procedural standards governing the admissibility of expert
testimony. See Whalen v. CSX Transp., Inc., No. 13 Civ. 3784, 2016 WL
5723877, at *17 n.17 (S.D.N.Y. Sept. 29, 2016); Cantrell, 2013 WL 8632378, at
*4; Clements, 2011 WL 13136959, at *3; Smith, 806 S.E.2d at 893–94; Farley v.
BNSF Ry. Co., No. 112,872, 2016 WL 1169426, at *7 (Kan. Ct. App. Mar. 25,
2016). We are therefore unpersuaded that McBride upended this well-
established distinction.
4. Texas’s Admissibility Standards Apply
We agree with the reasoning of the courts that have concluded that the
standard of causation under FELA and the standards for admission of expert
testimony under the applicable rules of evidence are distinct issues that do not
affect one another and that, consequently, FELA’s featherweight causation
standard does not require a Texas trial court to admit expert testimony in a FELA
case that would be inadmissible in a non-FELA case. See Claar, 29 F.3d at
503–04; Abraham, 233 S.W.3d at 19–20. We therefore hold that FELA’s
featherweight causation standard does not render inapplicable in FELA cases
32 our state procedural law governing the admissibility of expert testimony. The trial
court abused its discretion by concluding to the contrary. See United Scaffolding,
301 S.W.3d at 663 (“[A]n erroneous legal conclusion is an abuse of discretion,
even if it may not have been clearly erroneous when made.”). We sustain
BNSF’s sole issue.
V. CONCLUSION
Having concluded that this appeal continues to involve a controlling
question of law as to which there is a substantial ground for difference of opinion,
we deny Baca’s motion to dismiss. And having sustained BNSF’s sole issue, we
reverse the trial court’s order denying BNSF’s motion to exclude and remand this
case for further proceedings. See Tex. R. App. P. 43.2(d).
/s/ Lee Gabriel
LEE GABRIEL JUSTICE
PANEL: WALKER, GABRIEL, and KERR, JJ.
DELIVERED: March 29, 2018