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Smith v. CSX Transportation, Inc.

Court of Appeals of Georgia, First Division

October 27, 2017

SMITH
v.
CSX TRANSPORTATION, INC.

          BARNES, P. J., MCMILLIAN and MERCIER, JJ.

          McMillian, Judge.

         Earl Smith appeals the trial court's grant of summary judgment to CSX Transportation, Inc. ("CSX"), asserting that the trial court erred in (1) excluding the testimony of his expert witness, Dr. Arthur Wardell, and (2) granting summary judgment to CSX on his claims brought under the Federal Employers' Liability Act ("FELA"), 45 U.S.C. § 51 et seq. For the reasons that follow, we affirm.

         We review a grant of summary judgment de novo, construing the evidence and all reasonable conclusions and inferences therefrom in the light most favorable to the nonmovant. See Bisnott v. Norfolk Southern R., 338 Ga.App. 897, 897 (792 S.E.2d 436) (2016). Summary judgment is appropriate when no genuine issues of material fact remain and the moving party is entitled to judgment as a matter of law. Id.

         So viewed, the record shows that Smith began working for CSX in 1980 as a laborer in the bridges and buildings department. Over the course of his 32-year career with CSX, Smith worked in a variety of different roles, including as a bridge helper, flagman, assistant foreman, foreman, and track inspector. Smith's duties with each job varied. For example, when Smith worked as a flagman - in 1981, at various times from 1996 to 1999, and again from 2001 until 2006 - he was responsible for directing rail traffic and overseeing contract workers but was not engaged in physical labor. However, when Smith worked as a track inspector, including from 1999 to 2001 and 2006 to 2012, his duties included pulling and driving spikes and changing rails and bolts in addition to inspecting the track. According to Smith, this work hurt his back, his hands, and his knees.[1] And in separate, prior lawsuits, he settled claims against CSX related to a back injury, a right knee injury, and carpel tunnel syndrome in both hands.[2]

         In 2009, Smith began experiencing pain in his right shoulder and eventually underwent surgery in July 2010. He returned to work following surgery but then began experiencing the same pain in his left shoulder, which led him to leave CSX on occupational disability in February 2012. In July 2012, Smith filed this FELA lawsuit, alleging that he was exposed to "harmful repetitive motion, cumulative trauma, awkward work postures, vibration, and other harmful conditions" that caused injury to his shoulders and right foot.[3] In support of his claims, Smith offered the testimony of his specific causation expert, Dr. Wardell, who opined that Smith's occupational duties, including his use of heavy tools and other types of work, were a significant factor in causing the acromioclavicular arthritis[4] in his left and right shoulders, which led to his occupational disability. Following Dr. Wardell's deposition, CSX moved to exclude his testimony and for summary judgment. The trial court granted CSX's motion to exclude Dr. Wardell after finding that, although Dr. Wardell is a qualified orthopedist whose testimony is relevant, his opinions in this case are not reliable. And because Smith was therefore unable to provide evidence of specific causation, the trial court granted summary judgment to CSX. This appeal followed.

         1. In his first enumeration of error, Smith asserts that the trial court erred in excluding Dr. Wardell's testimony. At the outset, we note that "[t]he determination of whether a witness is qualified to render an opinion as an expert is a legal determination for the trial court and will not be disturbed absent a manifest abuse of discretion." (Citation and punctuation omitted.) HNTB Ga., Inc. v. Hamilton-King, 287 Ga. 641, 642 (1) (697 S.E.2d 770) (2010).

         a. Smith first contends that the trial court erred in excluding Dr. Wardell's testimony because FELA relaxes the standard of causation that would otherwise apply in a personal injury case and consequently lowers the standard by which trial courts assess expert witness testimony. We disagree. "The Federal Employers' Liability Act is a federal statute that gives a railroad employee the right to sue his employer in state or federal court for injury or death resulting in whole or in part from the railroad company's negligence." Norfolk Southern R. Co. v. Zeagler, 293 Ga. 582, 586 (2) (748 S.E.2d 846) (2013). To bring a FELA claim, the plaintiff must prove each of the traditional common law elements of negligence: duty, breach, foreseeability, and causation. See id. Under FELA, however, the causation standard is relaxed, and "the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought." (Citation and punctuation omitted.) Norfolk Southern R. Co. v. Schumpert, 270 Ga.App. 782, 784 (1) (608 S.E.2d 236) (2004). "Nevertheless, some evidence of causation is required; FELA is not a no-fault workers' compensation statute." Id. And, "[i]n all FELA lawsuits, the plaintiff bears the burden of proving medical causation." (Citation omitted.) Lee v. CSX Transp., Inc., 233 Ga.App. 30, 31 (503 S.E.2d 309) (1998).

         Although the standard for proving causation is relaxed in a FELA case, it does not necessarily follow that the standard for evaluating the admissibility of expert testimony under OCGA § 24-7-702 is similarly relaxed. This question appears to be one of first impression in Georgia, but federal courts have held that the trial court's "application of Rule 702 and Daubert . . . is not altered in any way by the substantive law governing Plaintiff's claims. While this is a FELA case, to which a relaxed standard of causation applies, 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." (Citation, footnote, and punctuation omitted.) Bowers v. Norfolk Southern Corp., 537 F.Supp.2d 1343, 1352 (M.D. Ga. 2007), aff'd Bowers v. Norfolk Southern Corp., 300 Fed.App'x 700 (11th Cir. 2008). "Thus, the fact that FELA employs a relaxed standard of causation does not mean that in FELA cases courts must allow expert testimony that in other contexts would be inadmissible." Id. ("admission of expert testimony is controlled - even in FELA cases - by the Federal Rules of Evidence and Daubert"). See also Claar v. Burlington Northern R. Co., 29 F.3d 499, 503 (9th Cir. 1994) ("Nor does it mean that in FELA cases courts must allow expert testimony that in other contexts would be inadmissible."). We find these cases to be persuasive[5] and likewise hold that FELA does not alter the standards for the admission of expert witness testimony under OCGA § 24-7-702.

         b. We now turn to Smith's assertion that the trial court erred in treating this "routine orthopedic case" as a "toxic exposure case" in excluding Dr. Wardell's testimony under OCGA § 24-7-702. Again, we disagree. OCGA § 24-7-702 provides:

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) The 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 which have been or will be admitted into evidence before the trier of fact.

         The proffering party bears the burden of presenting evidence of reliability in order to meet the standards of OCGA § 24-7-702 (b). See HNTB Ga., Inc. v. Hamilton-King, 287 Ga. 641, 646 (2) (697 S.E.2d 770) (2010).

         "Though Daubert involved scientific experts, the Supreme Court has since made it clear that the strictures of Rule 702 and Daubert apply with equal force to non-scientific expert witnesses." (Citation omitted.) Bowers, 537 F.Supp.2d at 1350. Thus, a medical doctor's opinions regarding injury causation "clearly fall within Federal Rule of Evidence 702's scope of 'scientific knowledge' and must satisfy Daubert." Wilson v. Taser Intl., Inc., 303 Fed.Appx. 708, 713 (11th Cir. 2008). "Importantly, any step that renders the analysis unreliable renders the expert's testimony inadmissible." Bowers, 537 F.Supp.2d at 1350. The trial court has broad discretion in deciding how to assess the reliability of expert testimony. See Hamilton-King, 287 Ga. at 642-43 (1); United State v. Frazier, 387 F.3d 1244, 1264 (11th Cir. 2004). This discretion affords the trial court "considerable leeway . . . in deciding which tests or factors to use to assess the reliability of an expert's methodology." Bowers, 537 F.Supp.2d at 1351.

         Here, the trial court considered three factors in assessing the reliability of Dr. Wardell's opinions: whether his conclusions were based upon sufficient facts or data, whether he reached those conclusions by use of reliable principles and methods, and whether he applied those principles and methods reliably to the facts of the case. See OCGA § 24-7-702 (b). The trial court first found that Dr. Wardell's use of a "differential etiology"[6] to opine on the cause of Smith's injuries is a legally sufficient ...


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