Schleich v. Penn Cent. Corp.

2024 Ohio 5005, 255 N.E.3d 216

• Court: Ohio Court of Appeals
• Decided: October 17, 2024
• Docket: 113632
• Status: Published

Opinion

[Cite as Schleich v. Penn Cent. Corp., 2024-Ohio-5005.] COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

THOMAS P. SCHLEICH, :

Plaintiff-Appellant, : No. 113632

v. :

PENN CENTRAL CORPORATION, : ET AL., : Defendants-Appellees.

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: October 17, 2024

Civil Appeal from the Cuyahoga County Common Pleas Court Case No. CV-20-939184

Appearances:

Eric H. Mann; Bern Cappelli LLC and Thomas J. Joyce, III, pro hac vice, for appellant.

Burns White LLC, Kevin C. Alexandersen, and Holly M. Olarczuk-Smith, for appellees Consolidated Rail Corporation and CSX Transportation, Inc.

Blank Rome LLP and Daniel L. Jones, Jr., for appellee American Premier Underwriters, Inc. MICHELLE J. SHEEHAN, P.J.:

Thomas Schleich appeals the trial court’s grant of Consolidated Rail

Corporation’s, CSX Transportation, Inc.’s, and American Premier Underwriters,

Inc.’s (hereinafter referred to as the “Appellees”) motions to exclude the expert

testimony of Dr. Mark Levin and motions for summary judgment. Because the trial

court did not abuse its discretion in excluding Dr. Levin’s testimony, it properly

granted summary judgment to Appellees and we affirm the judgments appealed.

PROCEDURAL HISTORY AND RELEVANT FACTS

Schleich filed a toxic tort case under the Federal Employers’ Liability

Act, 45 U.S.C. 51, et seq. (“FELA”) and the Locomotive Inspection Act, 49 U.S.C.

20701 against Appellees. Within the complaint, Schleich alleged that he worked for

Appellees as a fireman, engineer, and road foreman and that during that time he was

exposed to diesel exhaust. He alleged that exposure ultimately was a cause of him

developing Acute Promyelocytic Leukemia (“APL”), a subtype of Acute Myeloid

Leukemia (“AML”).

Appellees moved the trial court to exclude the testimony of Schleich’s

medical causation expert, Dr. Levin. They further moved for summary judgment

arguing that because Dr. Levin’s testimony regarding causation should be excluded,

Schleich could not maintain his claims. Schleich concedes in this appeal that if

Dr. Levin’s testimony is excluded, summary judgment would be properly granted in

favor of Appellees. Dr. Levin prepared an expert report in which he concluded “with a

reasonable degree of medical certainty, that exposure to diesel exhaust containing

benzene, by inhalation, was a cause or contributing factor in the development of

Thomas Schleich’s [APL].” Dr. Levin based his conclusion on a survey of scientific

and medical literature through Google and PubMed. He cited the International

Agency for Research on Cancer (“IARC”) in forming his opinions as to the

carcinogenicity of diesel exhaust and benzene in particular, noting that “IARC

classifies diesel engine exhaust as ‘carcinogenic to humans,’ based on sufficient

evidence that it is linked to an increased risk of lung cancer and that there is ‘some

evidence of a positive association’ between diesel exhaust and bladder cancer.”

Dr. Levin also noted that “IARC concluded that benzene exposure has sufficient

carcinogenic evidence in both human and animal studies in 1987.” Dr. Levin opined

that Schleich was exposed to diesel exhaust, that benzene has been found to be a

cause of APL, and because diesel exhaust contains benzene, Schleich’s exposure to

diesel exhaust was a cause of Schleich’s condition.

The trial court issued a written opinion (“Tr. Ct. Op.”) excluding

Dr. Levin’s testimony. Within the Tr. Ct. Op., the trial court found several reasons

to exclude Dr. Levin’s testimony. Of relevance to this appeal, the trial court found

Dr. Levin’s method for finding and analyzing the scientific literature to be unreliable

under Ohio law. The trial court cited IARC Monographs that studied railroad

workers and found “the existing scientific literature relating to railroad workers and their exposures states that the evidence, as it relates to cancers such as leukemia,

‘did not support an effect of exposure to diesel and/or gasoline engine exhausts.’”

Tr. Ct. Op. at p. 8, citing IARC Monograph 105, p. 457. IARC Monograph 105,

p. 149-173. The trial court also found that Dr. Levin did not explain how he reached

his conclusion or how his conclusion was supported by the literature he relied upon

in reaching his conclusion. Further, the trial court found that

Dr. Levin’s opinion that [Schleich’s] exposure to Benzene, as a component of diesel exhaust, is insufficient to support an admissible general causation opinion. See, Cook v. CSX Transp., Inc., Case No. 16-2017-CA-005874, *2 n. 1 (“[A]n expert’s reliance on literature regarding a component or constituent of an exposure or product where the exposure or product itself is not associated with the disease at issue is insufficient to support a general causation opinion under Daubert [v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579 (1993)]”); Burst v. Shell Oil Co., 2015 U.S. Dist. LEXIS 77751, *22-23 (E.D. La. June 16, 2015).

After making these findings, the trial court explained “Dr. Levin’s

failure to engage in a meaningful explanation as to how the studies relied upon

support his opinions renders his opinions unreliable, and therefore, inadmissible.”

Tr. Ct. Op. at 10. It further explained that “Dr. Levin is not aware of any study that

states that exposure to diesel exhaust can cause APL. There is simply too great of an

analytic gap between the data and Dr. Levin’s opinion.” Id. at 11. LAW AND ARGUMENT

Assigned Error and Relevant Law

Schleich assigns as error that the trial court misapplied the law and

therefore abused its discretion in excluding Dr. Levin’s testimony and that, as such,

it also erred in granting summary judgment. Appellees argue that the trial court

properly exercised its discretion in excluding Dr. Levin’s testimony and that, as such,

properly granted summary judgment.

Having brought a toxic tort case, Schleich was required to produce

expert testimony on the issue of medical causation. Alden v. Phifer Wire Prods.,

2005-Ohio-3014, ¶ 19 (8th Dist.), citing Valentine v. PPG Industries, 2004-Ohio-

4521, ¶ 17 (4th Dist.); Shiver v. Georgia & Florida Railnet, Inc., 287 Ga.App. 828,

830-831 (Ga. Ct. App. 2007) (In FELA case, plaintiff must provide expert testimony

to prove causation.). In bringing a case based on toxic exposure, a plaintiff’s expert

medical testimony must prove both general causation and specific causation. Terry

v. Caputo, 2007-Ohio-5023, ¶ 15. General causation requires a showing that

exposure to a toxin is capable of causing the disease contracted. Id. As such, if Dr.

Levin’s testimony on general causation is found to have been properly excluded,

then summary judgment was properly granted in favor of Appellees.

We review a trial court’s decision to exclude evidence for an abuse of

discretion. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). An abuse of

discretion “‘implies not merely error of judgment, but perversity of will, passion, prejudice, partiality, or moral delinquency.’” TWISM Ents., L.L.C. v. State Bd. of

Registration for Professional Engineers & Surveyors, 2022-Ohio-4677, ¶ 3, quoting

State ex rel. Commercial Lovelace Motor Freight, Inc. v. Lancaster, 22 Ohio St.3d

191, 193 (1986). Further, an abuse of discretion also “implies that the court’s attitude

is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio

St.3d 217, 219 (1983). However, trial “courts lack the discretion to make errors of

law. . . .” Johnson v. Abdullah, 2021-Ohio-3304, ¶ 39.

Under Evid.R. 702(C), an expert’s testimony must be based on

“reliable scientific, technical, or other specialized information.” When determining

the admissibility of expert testimony, a trial court is tasked with examining whether

the conclusion of the expert is based on scientifically valid principles and methods,

not whether the conclusion is correct. Miller v. Bike Ath. Co., 80 Ohio St.3d 607,

(1998), paragraph one of the syllabus. The Ohio Supreme Court stated that

“[b]ecause even a qualified expert is capable of rendering scientifically unreliable

testimony, it is imperative for a trial court, as gatekeeper, to examine the principles

and methodology that underlie an expert’s opinion.” Valentine v. Conrad,

2006-Ohio-3561, ¶ 17. When assessing the reliability of an expert’s method or

theory, the Ohio Supreme Court found that

[t]he trial court should first assess whether the method or theory relied upon has been tested. Next, it should consider whether the theory has been the subject of peer review, and then whether the method has a known or potential error rate. Finally, Daubert instructs trial courts to look at whether the theory has gained general acceptance in the scientific community. None of these factors, of course, is dispositive of the inquiry, and when gauging the reliability of a given expert’s testimony, trial courts should focus “solely on principles and methodology, not on the conclusions” generated.

(Cleaned up.) Terry at ¶ 25, citing Daubert, 509 U.S. at 592-594.

The trial court did not abuse its discretion by excluding Dr. Levin’s testimony and properly granted summary judgment

In this case, the trial court excluded Dr. Levin’s testimony for several

reasons, including a finding that Dr. Levin’s opinion on general causation was

unreliable. If we determine the trial court did not abuse its discretion in doing so

on this issue, then we need not address the several other reasons the trial court

excluded the testimony because Schleich would not be able to produce expert

testimony on both general and specific causation. Terry, 2007-Ohio-5023, at ¶ 31

(“Without expert testimony to establish both general causation and specific

causation, a claimant cannot establish a prima facie case of exposure to mold or

other toxic substance.”).

As to the issue of general causation, the trial court examined

Dr. Levin’s expert report and deposition testimony and found that the basis of his

methodology in searching the scientific literature was not reliable where Dr. Levin

“did not track or otherwise maintain the list of the search terms he used or the results

from his searches.” Tr. Ct. Op. at 6, citing Sherman v. BNSF Ry. Co., 2022 U.S. Dist. LEXIS 7561, *9 (C.D. Ill. January 14, 2022).1 The trial court also found Dr. Levin’s

opinion on general causation to stand apart from the scientific literature. It

specifically noted that the IARC studied whether diesel exhaust exposure may cause

cancers, including leukemia, and Dr. Levin failed to address this literature in his

deposition. Tr. Ct. Op. at 9 - 10, citing IARC Monograph 105, p. 149-173. Moreover,

the trial court found that “[w]hen a scientist claims to rely on a method practiced by

most scientists, yet presents conclusions that are shared by no other scientist, the

district court should be wary that the method has not been faithfully applied.” Id. at

10, citing Cook, 2023 Fla. Cir. LEXIS 5000, at *10, quoting Lust by & Through Lust

v. Merrell Dow Pharmaceuticals, Inc., 89 F.3d 594, 598 (9th Cir. 1996).

Expert medical testimony on causation is required in a toxic tort case,

but that testimony must be reliable. Dr. Levin did not explain or support his opinion

with any scientific study finding that diesel exhaust was a cause of leukemia or

Schleich’s specific form of leukemia. In light of scientific literature that railroad

workers’ exposure to diesel engine exhaust as it relates to cancers such as leukemia

was not supported, the trial court’s determination that Dr. Levin’s opinion was too

“great an analytic leap” was not abuse of its discretion. See Arn, 2024 Fla. Cir.

LEXIS 880, *69 (“Plaintiff has presented no evidence reflecting any effort by Dr.

1 We note that two Florida state trial courts similarly found Dr. Levin’s search methodology to be unreliable. Arn v. CSX Transp., Inc., 2024 Fla. Cir. LEXIS 880; Cook, 2023 Fla. Cir. LEXIS 5000. Levin to weigh the evidence or explain how the substantial body of literature that is

contrary and unsupportive of his opinions was outweighed by the studies he

selected. These failures make Dr. Levin’s causation testimony unreliable and

inadmissible under Daubert.”); Sherman at *9-11; Cook, 2023 Fla. Cir. LEXIS 5000,

at *12-13.

The trial court considered Dr. Levin’s opinion on general causation

and found the methods used by Dr. Levin in forming his opinion to be unreliable

and that his conclusions were neither explained nor supported by the scientific

community. Because the trial court engaged in a reasoned analysis of the expert

testimony, we cannot say the trial court abused its discretion in exercising its role as

gatekeeper and excluding Dr. Levin’s testimony on the issue of general causation.

As such, the trial court did not err in granting summary judgment to Appellees.

Schleich’s alleged error is overruled.

CONCLUSION

In bringing a toxic tort claim against Appellees, Schleich was required

to produce expert medical testimony on the issue of general causation. The trial

court considered the methods Schleich’s expert used to arrive at his conclusion and

the underlying reasons for the opinion. The trial court did not err in excluding the

expert testimony where the methodology in reaching the expert opinion was found

to be unreliable and where the opinion was not supported by any scientific literature and the lack of support was not explained. Because the expert testimony was

excluded, the trial court properly granted summary judgment to Appellees.

Judgment affirmed.

It is ordered that appellees recover of appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

_________________________________ MICHELLE J. SHEEHAN, PRESIDING JUDGE

LISA B. FORBES, J., CONCURS; MARY J. BOYLE, J., CONCURS IN JUDGMENT ONLY