IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2017-CA-01568-COA
GERALDINE CHILDERS, AS PERSONAL APPELLANT REPRESENTATIVE OF PHILLIP CHILDERS, DECEASED
v.
ILLINOIS CENTRAL RAILROAD COMPANY APPELLEE
DATE OF JUDGMENT: 10/23/2017 TRIAL JUDGE: HON. PAUL S. FUNDERBURK COURT FROM WHICH APPEALED: TISHOMINGO COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: PATRICK STEVEN O’BRIEN C.E. SOREY II ATTORNEYS FOR APPELLEE: STEPHANIE CAMILLE REIFERS THOMAS R. PETERS BROOKS E. KOSTAKIS JOHN JENNINGS BENNETT NATURE OF THE CASE: CIVIL - PERSONAL INJURY DISPOSITION: AFFIRMED - 06/11/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC.
TINDELL, J., FOR THE COURT:
¶1. Geraldine Childers (Childers) filed a Federal Employers’ Liability Act claim against
Illinois Central Railroad Company in the Tishomingo County Circuit Court for damages
associated with the brain cancer and subsequent death of her husband, Phillip Childers
(Decedent). During discovery and pursuant to the parties’ scheduling order, Childers
designated Dr. Leonard White as her sole expert to establish causation between the
Decedent’s work with Illinois Central and his development of brain cancer. Dr. White then submitted his expert report, which concluded that the Decedent’s brain cancer and
subsequent death were caused by unhealthy exposure to certain toxins during his employment
with the railroad company. Illinois Central filed a motion to exclude Dr. White’s expert
testimony, followed by a motion for summary judgment predicated upon the exclusion of that
testimony. After conducting a hearing on the matter, the circuit court granted both of Illinois
Central’s motions. Childers appeals the circuit court’s decision, arguing that the court erred
by excluding Dr. White’s testimony and by granting the dispositive motion. Finding no error,
we affirm.
FACTS AND PROCEDURAL HISTORY
¶2. The Decedent worked for Illinois Central as a machine operator from 1971 to 1994.
In December 2009, the Decedent developed glioblastoma multiforme, a form of brain cancer,
and later died as a result. On November 13, 2012, Childers filed a FELA claim in the circuit
court, alleging that the Decedent developed brain cancer as a result of exposure to toxic
chemicals and agents and that the Decedent was never given the proper protective equipment
to prevent the exposure. Illinois Central answered the complaint, and the parties agreed to
a scheduling order. Pursuant to the scheduling order, Childers designated Dr. White as her
sole expert for medical causation. Dr. White wrote a report in which he opined that the
Decedent’s brain cancer stemmed from unhealthy exposure to diesel exhaust and degreasing
agents during his employment with Illinois Central. Illinois Central filed a motion to exclude
Dr. White’s testimony along with a motion for summary judgment depending upon the circuit
court’s granting its motion to exclude. The circuit court granted Illinois Central’s motion to
2 exclude, finding that Dr. White’s opinions did not meet the standard set forth in Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The court also granted Illinois
Central’s motion for summary judgment, finding that because White’s testimony was
excluded, Childers could not prove causation–a material element of her claim–and as such,
no genuine issue of material fact existed. Childers now appeals this judgment.
STANDARD OF REVIEW
¶3. “Our well-settled standard of review for the admission or suppression of evidence is
abuse of discretion.” Miss. Transp. Comm’n v. McLemore, 863 So. 2d 31, 34 (¶4) (Miss.
2004). The Mississippi Supreme Court has said that “the decision of the trial judge will
stand unless we conclude that the decision was arbitrary and clearly erroneous, amounting
to an abuse of discretion.” Id. (internal quotation mark omitted).
¶4. Appellate courts review the grant or denial of a summary-judgment motion de novo,
applying the same standard as the trial court. Miss. River Basin All. v. Westphal, 230 F.3d
170, 174 (5th Cir. 2000). “Summary judgments . . . should be granted with great caution”
after viewing the evidence most favorably towards the non-moving party. Brown v. Credit
Ctr. Inc., 444 So. 2d 358, 362-63 (Miss. 1983). After the non-movant has been given the
opportunity to raise a genuine factual issue, if no reasonable juror could find for the
non-movant, summary judgment will be granted. Miss. River Basin All., 230 F. 3d at 174.
ANALYSIS
I. FEDERAL EMPLOYERS LIABILITY ACT
¶5. Under FELA, railroads are liable for injuries their workers sustain if the injuries are
3 cause by the railroads’ reasonably foreseeable negligence. 45 U.S.C. § 51 (2012). FELA is
the exclusive remedy for railroad employees who sustain injuries as a result of the negligence
of the railroad. Huffman v. Union Pac. R.R., 675 F.3d 412, 416 (5th Cir. 2012). The statute
charges railroad companies with the duty to provide reasonably safe work environments for
their employees. Id. at 417. “FELA holds railroads to a prudent-person standard of care.”
Ill. Cent. R.R. Co. v. Brent, 133 So. 3d 760, 775 (¶32) (Miss. 2013). However, FELA does
not make railroad companies the insurers of their workers’ safety. Ellis v. Union Pac. R. Co.,
329 U.S. 649, 653 (1947). As such, in order to recover under FELA, workers must have been
injured during the course and scope of their employment and by some negligence on the part
of the railroad. Id.
¶6. Generally, in order to prevail in a FELA case, the plaintiff must prove the same
elements as he would in a common-law negligence case. Brent, 133 So. 3d at 775 (¶32).
The two legal standards diverge, however, on the element of causation. Plaintiffs have a
more relaxed burden of proof in FELA cases and are tasked with providing far less evidence
than in ordinary negligence cases. Id. at 768 (¶13). But plaintiffs must produce more than
a mere scintilla of evidence of causation in order to prevail against their employers under
FELA. Id. FELA’s relaxed burden for causation is meant to protect plaintiffs’ rights to trial,
as summary judgment is appropriate “only upon a complete absence of probative facts
supporting the plaintiff’s claim.” Rivera v. Union R.R. Co., 378 F.3d 502, 506 (5th Cir.
2004).
¶7. As a general rule, in FELA cases, expert testimony is not necessary. Huffman, 675
4 F.3d at 419. But this “general rule gives way” where the evidence is beyond the
understanding of the average lay juror; in those circumstances, expert testimony is imperative
to properly break down the issues. Id. For example, where an injury is fairly self-evident,
such as a car accident resulting in a broken limb, the average layman could deduce the
resulting injury and its cause. Id. (citing Moody v. Maine Cent. R.R. Co., 823 F.2d 693, 695-
96 (1st Cir. 1987)). The causal link between a cancer diagnosis and exposure to harmful
toxins, however, often requires the expertise and knowledge of a medical expert. See Illinois
Cent. R.R. Co. v. Jackson, 179 So. 3d 1037, 1044-45 (¶¶18-19) (Miss. 2015) (noting that
plaintiff’s causation evidence came solely from two medical experts). Summary judgment
is appropriate in the absence of medical expert testimony necessary to prove injury in a
FELA cause of action. Id. at 1046 (¶¶22-23) (reversing a denial of summary judgment where
the primary medical expert’s testimony was deemed hearsay); see also Claar v. Burlington
N.R.R. Co., 29 F.3d 499, 504-05 (9th Cir. 1994) (affirming summary judgment where
plaintiffs’ experts were struck for failure to provide an explainable basis for their conclusions
that exposure to workplace chemicals caused the plaintiffs’ injuries).
¶8. Neither party in the case argues that medical expert testimony was not required to
prove causation. This Court understands that the causal link between chemical and toxin
exposure and a diagnosis of cancer is beyond the realm of an average lay juror’s common
knowledge. As such, this Court finds that expert medical testimony was the appropriate
means to establish causation in Childers’s case.
II. ILLINOIS CENTRAL’S MOTION TO EXCLUDE
5 ¶9. Our primary focus is whether the circuit court erred in excluding Dr. White’s expert
medical causation testimony. The circuit court found, and Illinois Central argues, that Dr.
White’s causal analysis was predicated upon studies that were unreliable, outdated, or
unsupportive of his conclusions and did not take into consideration pertinent facts concerning
the Decedent’s medical history.
¶10. Mississippi Rule of Evidence 702 charges trial-level courts “with being gatekeepers
on questions of admissibility of expert testimony.” Canadian Nat’l/Illinois Cent. R. Co. v.
Hall, 953 So. 2d 1084, 1094 (¶31) (Miss. 2007). Mirroring Federal Rule of Evidence 702,
Mississippi Rule of Evidence 702 states:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to 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) their testimony 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.
Id. at (¶30). Courts determine the admissibility of expert witness testimony by following the
standards set forth by the United States Supreme Court in Daubert, 509 U.S. at 579, and
modified in Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). This test was formally
adopted into Mississippi jurisprudence in the case of Mississippi Transportation Commission
v. McLemore, 863 So. 2d 31 (Miss. 2003). In applying the McLemore test, expert testimony
can only be admitted if it passes a two-pronged analysis. Id. at 35 (¶7). First, the expert
testimony must be relevant, assisting the trier of fact with matters beyond that of a lay juror.
Id. at 36 (¶8). Second, to determine reliability the Court considers the following illustrative
6 yet non-exhaustive list that the Daubert Court adopted: (1) whether the theory has been the
subject of peer review and publication; (2) the known or potential rate of the error of the
technique or theory when applied; (3) the existence of standards to control the technique’s
operation; and (4) the general acceptance the theory has garnered in the relevant expert
community. See McLemore, 863 So. 2d at 36-37 (¶13).
¶11. There is little question as to the relevancy of Dr. White’s expert testimony. Relevant
evidence is that which has “any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would
be without the evidence.” M.R.E. 401. “If the proffered evidence has any probative value
at all, Rule 401 favors its admission.” McLemore, 863 So. 2d at 40 (¶20). Further, if it is
clear that the evidence will assist the trier of fact, the evidence is relevant. Patterson v.
Tibbs, 60 So. 3d 742, 749 (¶22) (Miss. 2011).
¶12. The underpinning of Childers’s claim against Illinois Central is that the Decedent’s
brain cancer resulted from exposure to harmful toxins during his employment with the
railroad company. As discussed above, Childers would only be successful in her FELA
claim by proving Illinois Central’s breach of duty and (primarily) that the Decedent’s injury
and subsequent death were caused by the negligence of the company. Because the average
lay juror cannot rationally connect the chains of a causal link between these two variables,
Dr. White’s proffered testimony is clearly relevant.
¶13. The crux of the controversy here relates to the reliability of Dr. White’s testimony.
Dr. White submitted a two-page opinion on behalf of Childers, concluding that the
7 Decedent’s brain cancer and subsequent death were primarily caused by his exposure to a
combination of diesel exhaust and degreasing agents during his tenure at Illinois Central. In
his “additive theory,” Dr. White opined that chemicals from diesel fuel and degreasing agents
combined to cause the Decedent’s brain tumor over time. Dr. White used the following nine
studies to form the basis of his opinion:
1. Thomas, T.L., Primary Brain Tumors Associated with Chemical Exposure, Occupational Neurology and Clinical Neurotoxicology, Bleecker, M. And Hansen, J., Williams & Wilkins (1994) (“Thomas I study”);
2. Maltoni, c. et. al., Experimental contributions in identfying potential brain carcinogenesis in the petrochemical industry, Annals New York Academy of Science, 381, 216-249 (1982) (“Maltoni study”);
3. Schenker, M.B., et. al., Diesel exposure and mortality among railway workers: results of a pilot study, British Journal of Industrial Medicine, 41, 320-327 (1987) (“Schenker study”);
4. Stern, F.B. et. al., Exposure of motor vehicle examiners to carbon monoxide: a history prospective mortality study, Arch Environ Health, 36(2), 59-65 (1981) (“Stern study”);
5. Rushton L, et. al., Epidemiological survey of maintenance workers in London Transport Executive bus garages and Chiswick Works, British Journal of Industrial Medicine, 40, 340-345 (1983) (“Rushton study”);
6. Thomas, T., et. al., Risk of astrocytic brain tumors associated with occupational chemical exposures, Scand J Work Environ Health, 13, 417-423 (1987) (“Thomas II study”);
7. Heineman, E.F., Occupational Exposure to Chlorinated Aliphatic Hydrocarbons and Risk of Astrocytic Brain Cancer, American Journal of Industrial Medicine, (1994) (“Heineman study”);
8. Thomas, T., et. al., Brain tumors and occupational risk factors, Scan J Work Environ Health, 12, 1-15 (1986) (“Thomas III study”); and
9. Howe, G.R., et. al., Cancer Mortality (1965-77) in Relation to Diesel Fume
8 and Coal Exposure in a Cohort of Retired Railway Workers, JNCL, 7(6), 1015-1019 (June 1983) (“Howe study”).
In its order granting Illinois Central’s motion to exclude, the circuit court held that these
studies were either outdated, unreliable, or did not fully support White’s conclusions. Upon
review of the studies, we agree with the circuit court.
¶14. None of the nine studies White cited wholly support his conclusion that exposure to
diesel exhaust and degreasing agents caused the Decedent’s death. In fact, most of the
studies either contradict White’s causal conclusion in their results or conclude that further
investigation and research were required on the subject matter. First, the Heineman study
tested six different degreasing agents and found that only one of those six—methylene
chloride—could be generally connected with cancer. The study also concluded that
“evidence for the carcinogenicity of these six specific CAHs (chlorinated aliphatic
hydrocarbons) is inadequate in humans.” The study warned that “these results should be
interpreted cautiously” and even the carcinogenity of methylene chloride should still be
“evaluated in future studies.” Finally, there is no concrete evidence in the record that the
Decedent was exposed to methylene chloride during his employment at Illinois Central.
Heineman offers little foundation for Dr. White to base his opinions upon.
¶15. Next, Dr. White relied upon three articles Dr. Terry Thomas wrote, all studying the
potential for primary brain tumors and occupational exposure to chemicals. The Thomas I
study, which was the earliest study (documented in 1986), ultimately concluded that “no
causal industrial exposures had been identified,” and the results of this study should be
interpreted with caution. The 1987 Thomas II study examined the potential for brain tumors
9 in two “high risk industries”—petroleum refining and chemical manufacturing. In both
industries, this study produced no statistically significant link between exposure to chemicals
and brain tumors in the workers. In fact, the study showed the potential risk for brain tumors
actually decreased with duration of employment in these industries. The Thomas III study,
which was the most recent study completed in 1994, provides the most specific example of
inconclusive results between brain tumors and chemical exposure. At the outset, the article
states that “[a]though epidemiologic studies have suggested that there may be a relationship
between the risk of brain tumors and occupational exposures to chemicals, no specific
causative links have been documented.” In fact, the article admits that (1) “it is difficult to
link excess brain tumor risk with any specific chemical exposure” because the studies often
do not take into account potential exposures at prior jobs, and (2) it is extremely difficult to
narrow down exactly what chemicals a worker may be exposed to at a particular place of
employment. Finally, the article concedes that “[n]o firm conclusion can be drawn regarding
the role of any of these chemicals in the etiology of brain tumors.” Thomas’s three articles
provide no support for Dr. White’s opinion.
¶16. The Maltoni study analyzed the potential for brain cancer in lab animals that were
directly implanted with three specific diesel-exhaust constituents into the animals. As Illinois
Central states in its brief, White testified that he was unsure the Decedent was exposed to the
three chemicals used on the lab animals and did not know whether the level of the
Decedent’s exposure was even comparable to the direct implantation of the chemicals in the
animals. The Rushton and Stern studies examined the carcinogenity of exposure to certain
10 toxins among bus workers and motor vehicle examiners, respectively. Illinois Central argues
that these studies are hardly relevant because the Decedent held neither of these positions.
Irrespective of employment, both studies showed statistically insignificant association
between the surveyed toxins and potential for brain cancer.
¶17. Finally, Childers cites to the Howe and Schenker studies as the primary basis for
White’s opinion. The major finding in the Howe study, however, was an elevated risk for
lung cancer among individuals exposed to diesel fumes–primarily carmen. Also, Howe is
another example of a study that “warrants further investigation.” The Schenker study
compared the mortality rates of railway workers exposed to diesel exhaust. Schenker
specifically warns readers that the study merely provides a pilot study “designed to test the
feasibility of a larger retrospective cohort study and not to test the hypothesis that exposure
to diesel may cause cancer.” Also, Schenker acknowledges more than once in the study that
an increased risk of cancer from exposure to diesel exhaust was not statistically significant.
¶18. “Proposed testimony must be supported by appropriate validation—i.e., ‘good
grounds,’ based on what is known.” Daubert, 509 U.S. at 590. After reviewing the nine
studies, the literature Dr. White cites does not validate his conclusions. The fact that none
of the studies fully support Dr. White’s contention results in an analytical gap that could
easily mislead the jury. Illinois Central correctly points to General Electric Co. v. Joiner,
522 U.S. 136 (1997), and Watts v. Radiator Specialty Co., 990 So. 2d 143 (Miss. 2008), to
come to this same conclusion. In Joiner, a city electrician sued General Electric, among
others, after being diagnosed with small-cell lung cancer. Joiner, 522 U.S. at 139. Joiner
11 relied on the testimony of expert witnesses to establish causation between his occupational
exposure to polychlorinated biphenyls (PCBs) and his subsequent lung cancer diagnosis. Id.
The defendants argued that Joiner’s expert, who cited four epidemiological studies, failed
to establish a causal connection between the PCB exposure and Joiner’s lung cancer. Id. at
140. The United States District Court and Supreme Court ultimately agreed, finding that
studies, viewed individually or in combination, failed to provide a significant basis for the
opinion. Id. at 146-47. The four studies in Joiner are similar to the nine Dr. White cited—
they either provided statistically insignificant results or were inconclusive to establish a
legitimate causal link between the exposure and cancer. Id. The United States Supreme
Court urged lower courts in its opinion to examine both the methodology and conclusions
of experts when determining whether to exclude unreliable testimony:
Trained experts commonly extrapolate from existing data. But nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.
Id. at 146.
¶19. In Watts, the plaintiff enlisted the opinion of a medical expert to prove that his
exposure to the benzene contained in Liquid Wrench resulted in his non-Hodgkins
lymphoma. Watts, 990 So. 2d at 146 (¶8). The Mississippi Supreme Court examined the
eighteen studies cited by the plaintiff’s expert and found the following: (1) only half of the
epidemiological studies showed a significant increased risk of cancer due to benzene
exposure; (2) none of the studies directly dealt with chemical exposure and the development
12 of non-Hodgkins lymphoma in the plaintiff’s profession; (3) at least two of the studies
reported no significant increase of risk of cancer after exposure to benzene; and (4) at least
one study acknowledged that there was no scientific basis to support a causal link between
benzene exposure and non-Hodgkins lymphoma. Id. at 147 (¶10). The supreme court, citing
to Joiner, held that such a “leap across the chasm from the data in the studies to [the expert’s]
proffered opinion was more than the trial court could allow.” Id. at 150 (¶19). The Court
concluded that such an analytical gap between a weak collection of studies and the expert’s
attempted causal link was one that the circuit court appropriately excluded from the jury. Id.
at (¶20).
¶20. Here, the studies Dr. White cited are similar to those analyzed in Joiner and Watts.
Although some of the studies acknowledged that their findings should be interpreted
cautiously, others provide statistically insignificant results linking exposure to cancer at all.
The two primary studies White utilized, Howe and Schenker, do not even provide concrete
conclusions that chemical exposure results in an increase of brain tumors. Howe’s major
findings relate to lung cancer while Schenker’s studies of respiratory cancer garnered
statistically inconclusive results. Also, similar to Watts, none of the studies deal directly with
the results of chemical exposure and the development of brain tumors in the Decedent’s
particular railroad job. Finally, more than one study cited by Dr. White acknowledged that
no concrete basis existed to support the contention that occupational exposure causes brain
tumors. Childers argues that Joiner and Watts do not apply because such an analytical gap
does not exist in this case. But the fact that almost none of Dr. White’s case-studies support
13 a causal connection presents an even wider gap than in Watts. Further, the jury cannot rely
upon a collection of inconclusive and inconsistent studies, many of which require further
investigation, to connect the Decedent’s occupational exposure to his brain tumor. For Dr.
White’s opinion to pass Daubert’s reliability test, there must be “some evidence of support
and acceptance in the scientific community.” Patterson, 60 So. 3d at 751 (¶31). This is not
the case here. Dr. White’s case-studies, at best, garner minimal support for his expert
opinion, which hardly prompts this Court to reverse the circuit court.
¶21. The parties address several other factors in their arguments to support or refute Dr.
White’s reliability. First, Illinois Central points to Dr. White’s flawed use of the “Bradford
Hill” criteria to try and establish causation. The “Bradford Hill” criteria are used in
epidemiological studies to determine whether the association of two variables is truly causal.
Pounds v. Rogersol Inc., No. 3:07-CV-554-WHB-LRA, 2010 WL 11527412, at *4 (S.D.
Miss. June 15, 2010). The test uses the following nine criteria to determine causation: “(1)
temporal relationship; (2) strength of the association; (3) dose-response relationship; (4)
replication of the findings; (5) biological plausibility (coherence with existing knowledge);
(6) consideration of alternative explanations; (7) cessation of exposure; (8) specificity of the
association; and (9) consistency with other knowledge.” Id. Dr. White testified that he used
the “Bradford Hill” criteria to determine causation between the Decedent’s brain cancer and
exposure to diesel exhaust and degreasing agents. Illinois Central argues that Dr. White’s
expert opinion is proven more unreliable by the fact that, at most, only three of the nine
criteria were met connecting diesel exhaust and degreasing agents to brain tumors. But this
14 argument by itself does not preclude Dr. White’s admission as an expert because these
criteria are more guidelines than strict rules, and all criteria need not be met for causation to
be probable. Id.
¶22. Next, Illinois Central relied on two of its own experts to criticize Dr. White’s failure
to use more current case studies and to prove that Dr. White’s opinion was not widely
accepted among the scientific community. In his research, Dr. White testified that the most
recent article regarding occupational exposures and their relation to cancer was the Heineman
study in 1994. But Illinois Central presented the circuit court with an affidavit and report
from its own medical expert, Dr. Jill Barnholtz-Sloan, wherein she found over 3,000 articles
related to brain tumors and their risk factors, with over 50% of those articles being peer-
reviewed. Dr. Barnholtz-Sloan then cited to a 2014 article, which she had co-authored,
analyzing brain tumors and the associated risk factors, an article which Dr. White did not cite
in his opinion. The age of an expert’s case study may not be a detrimental factor towards the
decision to admit or exclude evidence, but it is certainly something that courts consider when
evaluating the reliability of an expert’s basis for the opinion. See Marcel v. Placid Oil Co.,
11 F.3d 563, 567 (5th Cir. 1994) (affirming the district court’s decision to exclude an
expert’s testimony based on the expert’s use of outdated case studies, among other reasons).
¶23. Finally, the circuit court found that Dr. White failed to consider certain pertinent facts
of the Decedent’s medical history in his causative analysis. Childers claims that Dr. White’s
analysis used a differential diagnosis to rule out a family history of brain cancer. Also, he
eliminated alcohol as a confounding factor to his cancer. Childers admitted, however, that
15 the Decedent smoked at least one pack of cigarettes a day from 1970 to 1982 during his
employment with Illinois Central. In his testimony, Dr. White admitted that he was unaware
of the Decedent’s extensive smoking history. Childers argues that this should not weigh
against the admission of Dr. White’s testimony because none of Illinois Central’s experts
attributed the Decedent’s brain cancer to smoking. But Dr. White himself acknowledged that
cigarettes contain polycyclic aromatic hydrocarbons, one of the constituents found in diesel
exhaust. Again, while this alone would not warrant exclusion of Dr. White’s testimony, the
fact that Dr. White was completely unaware of the Decedent’s smoking history, particularly
during his employment with Illinois Central, is certainly valid for the circuit court’s
consideration.
¶24. Experts who testify before a jury are required to build their opinions upon a reliable
foundation. Worthy v. McNair, 37 So. 3d 609, 615 (¶16) (Miss. 2010). In their roles as
gatekeepers, trial-level courts must ensure that expert testimony is well-grounded in scientific
methods and procedures and not the products of mere subjective beliefs or unsupported
speculation. Id. Dr. White submitted his opinion before the circuit court that the Decedent’s
exposure to a combination of diesel exhaust and degreasing agents caused his brain cancer.
In framing his opinion, Dr. White used nine articles that were either wholly unsupportive of
his conclusions or were so unreliable that the articles themselves warned against reliance
upon their conclusions. None of the articles he used concretely connected occupational
exposure to diesel exhaust and degreasing agents to a risk of brain cancer. Further, the most
recent articles Dr. White cited date back to 1994, even though a search by Dr. Barnholtz-
16 Sloan’s search revealed thousands of articles dating up to 2014. Dr. White applied the
“Bradford Hill” criteria to his methodology but discovered that three criteria, at most,
supported his conclusion. As the circuit court correctly stated, Dr. White was unaware of the
Decedent’s smoking history during his employment with Illinois Central, a pertinent fact due
to the chemicals contained in cigarettes. Taking all of these factors into consideration, we
find that the circuit court was within its discretion to exclude Dr. White’s testimony.
III. ILLINOIS CENTRAL’S MOTION FOR SUMMARY JUDGMENT
¶25. Childers also appeals the circuit court’s decision to grant summary judgment in favor
of Illinois Central. This motion was predicated on the exclusion of Dr. White’s testimony.
Summary judgment is appropriate if “the pleadings, depositions, answers to interrogatories
and admissions on file, together with the affidavits, if any, show that there is no genuine
issue of material fact. . . .” M.R.C.P. 56(c). Evidence must be viewed in the light most
favorable to the non-moving party. Brent, 133 So. 3d at 767 (¶12).
¶26. Trial-level courts in this State apply federal standards when determining whether a
FELA claim survives summary judgment. Id. at 767-68 (¶13). As explained, FELA requires
a much more relaxed burden of proof in order to protect the plaintiff’s right to trial. Id. But
although the burden to establish causation in a FELA action is less than that required in an
ordinary negligence action, the plaintiff must provide the court with some showing of a
causal relationship. See Rogers v. Mo. Pac. R.R. Co., 352 U.S. 500, 506 (1957). Childers
designated Dr. White as her sole medical expert to prove causation. The circuit court
excluded Dr. White’s testimony as unreliable and therefore found that Childers was unable
17 to meet her burden to prove causation. Without some evidence of a causal link between the
Decedent’s cancer and his occupational exposure, Childers’s FELA claim fails. Because we
affirm the circuit court’s decision to exclude Dr. White’s testimony, we likewise affirm the
court’s decision to grant summary judgment in favor of Illinois Central.
CONCLUSION
¶27. Childers presented only Dr. White’s expert medical testimony to prove causation in
her FELA claim. As such, her claim hinged upon Dr. White’s opinion passing the expert
testimony standard set forth in Daubert and adopted in McLemore. The circuit court found
that Dr. White used nine studies to form his opinion that were outdated, unreliable, or
completely contradictory of his conclusions. We agree with the circuit court and find no
abuse of discretion in the exclusion of Dr. White’s testimony. Because Childers presented
no other evidence to prove that the negligence of Illinois Central caused the Decedent’s brain
cancer, we also affirm the circuit court’s decision to grant summary judgment in this case.
¶28. AFFIRMED.
BARNES, C.J., CARLTON AND J. WILSON, P.JJ., GREENLEE, WESTBROOKS, McDONALD, LAWRENCE AND C. WILSON, JJ., CONCUR. McCARTY, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION, JOINED BY WESTBROOKS, McDONALD AND LAWRENCE, JJ.
McCARTY, J., SPECIALLY CONCURRING:
¶29. I agree with the majority’s thoughtful examination of the Daubert issue in this appeal.
I write separately to emphasize that simply because a theory is cutting edge does not require
it to be excluded. Furthermore, the credibility of an expert is a matter for a jury to weigh, not
a judge.
18 ¶30. Our Rule 702 is concerned with whether “the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to understand the evidence or to determine
a fact in issue . . . .” M.R.E. 702(a). The majority correctly emphasizes that the reliability
of a method is important to establish prior to admissibility. See M.R.E. 702(c). This does
not prevent cutting edge or brand new science from admission.1
¶31. Likewise, some of the attacks on the expert in the trial court did not concern Rule 702
but were aimed at the credibility of the expert. Yet “judging the expert’s testimony and
weight to be accorded thereto is the province of the jury.” Fleming v. Floyd, 969 So. 2d 868,
878 (¶25) (Miss. 2007). This consideration includes the credibility of expert witnesses, who
at the end of the day are still just witnesses.2
¶32. I believe we must remain focused on the core issue: whether the expert’s opinion
helps a jury perform its function to resolve disputed questions of fact and law. An expert
might establish what species of dogs have certain types of jaws, why their skulls are shaped
1 Indeed, for many years now, federal courts have allowed juries to consider new scientific theories and bases for liability. For instance, the Third Circuit Court of Appeals has ruled that the testimony of an expert should not be excluded “simply because the conclusion was ‘novel’ if the methodology and the application of the methodology were reliable.” Heller v. Shaw Indus. Inc., 167 F.3d 146, 153 (3d Cir. 1999). Citing Heller, the Eighth Circuit has followed suit, holding that “[b]oth our cases and the decisions of the Supreme Court make clear that it is the expert witnesses’ methodology, rather than their conclusions, that is the primary concern of Rule 702.” Bonner v. ISP Techs. Inc., 259 F.3d 924, 929 (8th Cir. 2001). 2 The federal courts have again plowed much ground on this subject, ruling repeatedly that concerns about certain expert opinions “go to [the expert’s] credibility as a witness, not to the admissibility of his testimony as an expert.” Kuhn v. Wyeth Inc., 686 F.3d 618, 628 (8th Cir. 2012); see also Hose v. Chicago Nw. Transp. Co., 70 F.3d 968, 976 (8th Cir. 1995) (“Although it is common that medical experts often disagree on diagnosis and causation, questions of conflicting evidence must be left for the jury’s determination.”).
19 a certain way, and how hard they bite. Yet only a jury can ultimately resolve whether a dog
bite caused harm.
WESTBROOKS, McDONALD AND LAWRENCE, JJ., JOIN THIS OPINION.