Pittsburgh, July 22, 2011 – Burns White LLC Transportation Practice Group Co-Chair David Damico and colleague Nina Gusmar were successful in excluding plaintiffs’ sole expert witness and obtaining summary judgment on behalf of Norfolk Southern Railway in three deleterious substances cases arising out of Elkhart, Ind.
Plaintiffs Aurand, Gilliland and Lipp each brought suit against defendant Norfolk Southern Railway Company under the Federal Employers’ Liability Act (FELA), alleging that their exposure to dangerous chemicals in the railyard caused each of them to develop a form of cancer. The defense filed a motion to exclude plaintiff’s toxicology expert, Dr. Richard Lipsey, challenging the scientific reliability of his methodology pursuant to Fed. R. Evid. 402, 702 and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). Concurrent with the challenge to plaintiff’s expert, the defense also filed a motion for summary judgment arguing that the plaintiffs lacked the necessary expert evidence to support both general and specific causation, because Dr. Lipsey’s opinion is inadmissible, and because the plaintiffs failed to provide written expert reports for their treating physicians as required by Rule 26(a)(2)(B).
In a persuasive opinion, Judge Philip Simon, Chief Judge of the United States District Court for the Northern District of Indiana found in favor of all of the defense’s major arguments. Notably, the Court found that that Dr. Richard Lipsey was not qualified to give an opinion under Rule 702 and Daubert, and that his opinions as to general and specific causation were unreliable. In particular, Judge Simon faulted Dr. Lipsey for lack of detail in the factual connection between the claimed exposures and the diseases in question.
Judge Simon also agreed with the defense’s position that because none of the plaintiffs’ treating physicians was shown to have developed an opinion on causation in the course of their treatment of plaintiffs, plaintiffs were required to disclose a written report from each such “expert” under Rule 26(a)(2)(B). Having concluded that Dr. Lipsey may not testify as an expert, and that the treating physicians were precluded from giving expert causation testimony for failure to submit reports, the court granted summary judgment, stating that there simply is no evidence demonstrating that the plaintiffs’ various cancers were caused by toxic exposures at Norfolk Southern’s railyard.
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