DAVID RAY BURTON V. CSX TRANSPORTATION, INC.
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ORRECTED : DECEMBER 17, 2008
RENDERED: OCTOBER 23, 2008
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2006-SC-000695-DCG
DAVID RAY BURTON
APPELLANT
ON REVIEW FROM COURT OF APPEALS
NOS. 2005-CAnOO0226-MR AND 2005-CA-000455-MR
JEFFERSON CIRCUIT COURT NO . 00-CI-0059
CSX TRANSPORTATION, INC.
APPELLEE
OPINION OF THE OURT BY CHIEF JUSTICE MINTON
AFFIRMING
I . INTRODUCTION.
We granted discretionary review of a Court of Appeals decision affirming
a defense verdict for CSX Transportation, Inc ., in the trial of David Ray
Burton's Federal Employers Liability Act (FELA) claim. Burton claimed that he
suffered permanent brain damage from exposure to toxic fumes emitted by
solvents' he used while working for CSX . At trial, much of the expert
testimony focused upon whether Burton's current physical difficulties were
likely caused by toxic encephalopathy (TE) brought on by exposure to the
fumes at CSX or by multiple sclerosis (MS) .
A solvent is usually a "liquid substance capable of dissolving or dispersing one or
more other substances. . . ." MERRIAMMEBSTER COLLEGE DICTIONARY 1116
(10th ed. 1998) . Apparently, the solvents at issue here were used to clean railroad
equipment by dissolving grease, dirt, or other substances .
Burton argues that the Court of Appeals erred by affirming the trial
court's judgment in the face of alleged reversible errors on several key
evidentiary rulings made at trial. Burton contends that the trial court erred by
(1) admonishing the jury to disregard causation opinions from Burton's trial
expert, neurophysiologist Dr. Lisa Morrow, while (2) allowing the jury to
consider the opinions of CSX's trial expert, physician Dr. William Waddell, who
criticized the numerous studies that linked solvent exposure to brain damage,
and (3) forbidding any reference by Burton to CSX workers' involvement in a
study of TE conducted by Dr. Martine RoBards .
We affirm because we find no reversible error by the trial court or the
Court of Appeals .
II . FACTS AND PROCEDURAL BACKGROUND.
Burton worked for CSX for several years at CSX's South Louisville shops,
beginning in the late 1970s and continuing through most of the 1980s. By
1991, his work with CSX had dwindled to part-time, so he left his job at CSX
and found employment elsewhere.
While working for CSX in various jobs, Burton often cleaned locomotives
and other railroad equipment using a cleaning solvent called "DowClean" and
other substances, such as brown soap and alkali cleaners . According to
Burton, the fumes from DowClean and other solvents2 sometimes caused light-
In his brief, Burton states that DowClean is a mixture of 1,1,1 trichlorethane and
perchlorethylene ; and he mentions other potentially toxic cleaners, including
trichloroethylene, brown soap, lye, degreasers, and the two individual components
headedness so that he would have to take "fresh air breaks" before resuming
work. While working at CSX, Burton never formally reported to CSX or any
government agency any adverse health effects from the solvent fumes.
Apparently, at the time he quit work at CSX, he was not aware of any
permanent adverse health effects from solvent exposure .
By 1995, Burton had developed troublesome chronic symptoms such as
dizziness, headaches, and vision difficulties, as well as memory loss and mood
changes . Neurologist Dr. Lynn Simon diagnosed and treated Burton for MS,
although she noted that some of his symptoms were not typically associated
with that disease. A few years later, Martine RoBards, a Ph .D. neuropsychologist, 4 examined and tested Burton and concluded that he suffered
from TE, a brain dysfunction allegedly caused by exposure to toxins in the
solvents Burton encountered at CSX. Dr. Simon began to wonder if the MS
diagnosis was correct; and some other physicians who examined Burton
of DowClean . At times, the parties refer to some of these solvents collectively as
chlorinated hydrocarbons .
Burton has alleged that CSX failed to take necessary safety precautions to protect
its workers from the dangers of solvent exposures. We will not discuss these
allegations in detail because they are not relevant to the issues before us on this
appeal.
Neuropsychology is defined as "[a) specialty of psychology concerned with the study
of the relationship between the brain and behavior, including the use of
psychological tests and assessment techniques to diagnose specific cognitive and
behavioral deficits and to prescribe rehabilitation strategies for their remediation."
STEDMAN'S MEDICAL DICTIONARY 1314 (28th ed. 2006) .
eventually came to believe that he did not suffer from MS but, instead, had
TE . 5
III. ANALYSIS.
A. Trial Court's Admonition to Disregard Causation Opinion
From Dr. Lisa Morrow Not Reversible Error .
After the trial court and jury viewed the entire videotape deposition of
Burton's trial expert, Dr. Lisa Morrow, the trial court admonished the jury to
disregard any opinion Dr. Morrow may have expressed concerning the
causation of Burton's cognitive impairment. Burton claims this was reversible
error.
We disagree, because any error in giving this admonition was
harmless .6
Dr. Morrow has an impressive resume, which includes her employment
as a professor of psychiatry at a medical school and her publication of
numerous studies and articles about TE. Despite her credentials, Dr. Morrow
herself testified that she could not state the cause of Burton's cognitive
impairment . By her own admission, she deferred instead to neurological
Encephalopathy is "[ajny disorder of the brain." Id. at 636. Apparently, there is
some controversy over whether long-term occupational exposure to toxic
substances (such as solvents) actually leads to any sort of long-lasting damage to
the brain according to the deposition testimony of various physicians ; thus, toxic
encephalopathy is a somewhat controversial diagnosis .
Kentucky Rules of Civil Procedure (CR) 61 .01 provides that:
"No error in either the admission or the exclusion of evidence and no error or defect
in any ruling or order or in anything done or omitted by the court or by any of the
parties is ground for granting a new trial or for setting aside a verdict or for
vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to
take such action appears to the court inconsistent with substantial justice. The
court at every stage of the proceeding must disregard any error or defect in the
proceeding which does not affect the substantial rights of the parties."
experts on that issue. In light of Dr. Morrow's admission, we cannot see how
the trial court's admonishing the jury to disregard Dr . Morrow's opinion on
causation, which she never definitively articulated, had any impact on the
jury's verdict.
Dr. Morrow stated that she assessed Burton for cognitive impairment .?
She testified that his symptoms were "consistent" with TE, although she
admitted that they might also be consistent with MS . She stated that her
ability to determine the cause of such impairments was somewhat limited
because she could not rule out certain other causes, such as MS, that she was
not qualified to diagnose. Although she often wrote down a diagnosis code for
patients for insurance purposes, she admitted that her cause descriptions for
medical records were largely based on the patient's self-reported history. She
said she did not necessarily medically diagnose patients except in very limited
situations, such as that of Alzheimer's disease .
Burton contends that the trial court's limiting admonition was
improperly given based upon an outdated assumption that only medical
doctors could properly testify about the cause of a possible brain injury,
despite Dr. Morrow's vast experience in researching and assessing patients and
her role in training medical students on the hazards of solvent exposure . We
We note that Burton claims that Dr. Morrow treated many patients for TE. In our
review, we came across some deposition testimony from Dr. Morrow indicating that
she was involved in assessment rather than treatment of this condition. While it is
possible that Dr. Morrow may have made inconsistent statements elsewhere about
treating patients, whether or not she treated patients does not control whether the
jury should consider her causation opinions. Rather, the fact that she admitted
that she could not state the causation of Burton's ailments supports the validity of
the trial court's limiting instruction.
note that the trial court allowed the unedited version of Dr. Morrow's
videotaped testimony to be played to the jury. The trial court then directed the
jury that Dr. Morrow's testimony was presented for the purpose of establishing
the proper assessment of Burton's cognitive impairment but that it should not
consider Dr. Morrow's opinion as to causation. Contrary to Burton's assertion
that the trial court's admonition encouraged the jury to disregard all of
Dr. Morrow's testimony, the trial court's instruction only admonished the jury
to disregard any opinions as to causation, an area in which Dr . Morrow herself
indicated that she could not reach a definite conclusion . In sum, the trial
court's limiting instruction was consistent with Dr. Morrow's self-imposed
limitation on the scope of her professional opinion.
The harmlessness of any error in limiting Dr. Morrow's causation
testimony was confirmed by the jury's apparent disregard of the balance of
medical causation testimony presented by Burton . Since both Dr . Douglas
Linz and Dr. George Rodgers testified as experts on Burton's behalf that in
their professional opinions, Burton's cognitive impairment was caused by his
exposure to solvents at CSX, any consideration the jury would have otherwise
given Dr. Morrow's causation opinion-to the extent she gave one-would have
been cumulative . If the jury did not accept the testimony of Dr. Linz and Dr .
Rodgers, who expressed their opinions on causation unreservedly, we seriously
doubt that there is a reasonable possibility that the jury would have found for
Burton based on Morrow's equivocal-at-best remarks on causation without the
trial court's limiting instruction. We find no reason to reverse this case based
on the trial court's handli :
of this matter.
B . No Abuse of Discretion
Admitting
Waddell's Testimony
.
Burton contends that the trial court improperly admitted the opinion
testimony of Dr. William Waddell, who criticized the numerous studieS 8 finding
that exposure to solvents caused brain damage. In reviewing the trial court's
ruling on the admissibility of expert testimony, we apply the abuse of discretion
standard.9 We agree with the Court of Appeals that the trial court did not
abuse its discretion in admitting Waddell's testimony. 10
Burton argues that Waddell's opinions on this matter do not meet the
threshold of reliability required by Daubert v. Merrill Dow Pharmaceuticals ."
In following Daubert, this Court has recognized that trial courts must perform
8
9
10
According to Burton, there have been hundreds, maybe even a thousand, studies
of a possible causal link between solvent exposure and cognitive impairment .
While it would seem difficult for a single witness to examine such a large number
of studies, this (hfRcultQy was fully and properly exploited by cross-examinationthus, possibly affecting the weight but not the admissibility of Dr . Waddell's
opinions. We further note that Dr. Waddell claimed to have been studying the
literature on this question for a number of years, so it would not be totally
impossible for him to have reviewed the various studies over this time period.
Toyota Motor Corp. v. gjg&M, 136 S.W.3d 35, 39 (Ky. 2004) .
As stated by the Court of Appeals, Dr. Waddell's view of the literature was
apparently admitted (at least in part) to rebut testimony from Burton's experts
link between
finding a valid causal
solvent exposure and cognitive impairment
based upon literature review. Naturally, we cannot just approve of the admission
of this evidence as "rebuttal evidence"; but we must determine whether this expert
testimony used for rebuttal met the Daubert standard to be properly admitted as
evidence. See id. at 40 (going on to assess reliability of expert testimony under
Dauberl after noting that expert's testimony was presented to rebut testimony of
other expert witness) .
509 U.S. 579, 113 Mt. 2786, 125 1L.Ed.2d 469 (1993) . While Daubert concerns
the application of Federal Rules of Evidence (FRE) 702, we have applied it to govern
the admissibility of expert testimony under our similar Kentucky Rules of Evidence
(KRE) 702. See, e.g., Gregory, 136 &Md at 39.
a "gate keeping function under KRE 702 . . .
."12
Generally, the trial court
must determine whether the expert's proffered testimony of "scientific,
technical or other specialized knowledge" will "assist the trier of fact to
understand or determine a fact in issue."13 To admit the expert testimony, the
trial court must determine that the testimony is both reliable and relevant to
the case before it. In determining whether the testimony is reliable under
Daubert, the trial court must assess whether the "reasoning or methodology"
underlying the testimony is scientifically valid. 14 A non-exclusive list of specific
factors to consider in determining reliability has arisen in decisional law:
1) whether the theory or technique can be and has been tested ;
2) whether the theory or technique has been subjected to peer
review and publication;
3) the known or potential rate of error in using a particular
scientific technique and the existence and maintenance of
standards controlling the technique's operation ; and
4) whether the theory or technique has been generally accepted in
the particular field. 15
In the instant case, the trial court was not necessarily presented with
assessing the reliability of a particular "theory or technique," other than
possibly a general theory that studies finding a causal link between solvent
exposure and long-term brain damage or cognitive impairment were flawed.
Rather, the trial court had to rule on the admissibility of an expert's review of
12
13
14
15
Gregory, 136 S.W.3d at 39.
Id.
Id. (quoting Daubert at 509 U.S. 592-93) .
Id. at 40 (quoting Daubert, 509 U.S. at 593-94) .
the literature and his opinions as to the validity of conclusions reached in the
literature . To a certain extent, the specific factors usually considered in
assessing the reliability of a particular technique or theory may not seem as
appropriate in the context of assessing the reliability of one's review of the
literature . Nonetheless, expert testimony based fully or primarily on literature
review must be shown, like all other expert evidence, both relevant and reliable
to pass muster under Daubert. In the instant case, we conclude that
Dr. Waddell's testimony based on his review of the literature did pass muster
under the Daubert rubric and that the trial court did not abuse its discretion
by admitting it.
A high standard must be met for an expert's testimony based primarily
or fully on literature review to be properly admitted in court under Daubert.
For example, while federal case law states that expert literature review
testimony may be admitted if the literature review was "performed
appropriately[,]" 16 such testimony is properly excluded if the proffered expert is
not sufficiently qualified in the proper field of study to offer an opinion that is
helpful to decide the specific questions presented in that case . 17
16
17
Doe v. Ortho-Clinical Diagnostics, Inc. , 440 F .Supp .2d 465, 472 (M.D .N .C. 2006) .
Id. at 471-76 (excluding testimony of physician specializing in obstetrical genetics
as unqualified to render opinion as to whether vaccines cause autism, in light of
lack of published research on specific question, as well as lack of board
certification in more relevant specialties) . See also Newton v. Roche Laboratories,
Inc. , 243 F.Supp .2d 672, 677-78 (W.D. Tex. 2002) (excluding testimony of
pharmacist as to whether acne drug could cause schizophrenia, in light of lack of a
higher professional degree (such as M.D . or Ph .D.), lack of advanced training in
pharmacology, lack of involvement in scientific research or academia (other than
serving as a volunteer lecturer of medical school class, which could "hardly be
C.
Dr. Waddell Was Sufficiently Qualified in Relevant
Areas of Study to Render Opinion.
Burton contends that the trial court erroneously admitted Dr. Waddell's
testimony based on his medical degree alone and that Dr. Waddell was not
sufficiently qualified to render a helpful opinion on the specific relevant issues
in this case. We note that Dr . Waddell did not directly address specific
causation (whether Burton's individual ailments had been caused by solvent
exposure or other factors), 18 but rather addressed general causation 19-whether exposure to solvents had been proven to cause long-term cognitive
impairment or brain damage . We agree with Burton that a medical degree,
standing alone, would not be sufficient qualification to allow a doctor to
express an opinion on this general causation issue without some showing of
expertise in relevant specific areas of study. But Waddell was sufficiently
qualified to review the literature and render an opinion on the specific issue of
18
19
described as primarily scientific or pharmacological in nature"), and no expertise in
causes of psychosis or any other more relevant field) .
Dr. Waddell did not offer a diagnosis for Burton or state the cause of his ailments.
He did state that, generally, brain damage from chemicals would occur immediately
rather than after a period of latency (when no damage is observed for a long period
after exposure) . Since Burton's symptoms apparently did not become evident until
years after his exposure to solvents at CSX, the jury might have inferred from this
discussion that specific causation was less likely . Nonetheless, Dr. Waddell did not
definitely state an opinion on specific causation.
Doe , 440 F.Supp .2d at 471 (defining general causation as being "established by
demonstrating that exposure to a substance can cause a particular disease" and
specific causation as being "established by demonstrating that a given exposure is
the cause of a particular individual's disease.") (citations and internal quotation
marks deleted) . As Waddell's testimony concerned only general causation rather
than specific causation, whether Dr . Waddell examined Burton or his medical
records is not a relevant consideration in determining the admissibility of
Dr . Waddell's opinion .
10
whether long-term occupational exposure to solvents had been conclusively
shown to cause permanent cognitive impairment and brain damage .
Before 1998, Dr. Waddell served as a professor and chaired the
Department of Pharmacology and Toxicology at the University of Louisville
Medical School. He devoted his career to academics and research rather than
treating patients . He served on a national committee known as ACGIH
(American Conference of Governmental and Industrial Hygienists) . ACGIH set
standards for workplace exposure to chemicals . Specifically, it set threshold
limit values (TLVs) for various chemicals-in other words, the maximum
amount of a chemical that a worker could safely be exposed to during a regular
forty-hour workweek for a lifetime . Dr. Waddell testified that he chaired the
ACGIH sub-committee that set the standards for chlorinated hydrocarbons, the
chemical name for most substances at issue or main component of most
substances at issue . He reviewed the scientific literature on effects of
occupational exposure to chlorinated hydrocarbons for several years because
these solvents are chemically quite similar to general anesthetics, which are
actually organiC 20 solvents, a subject on which he has delivered lectures to
medical students for years. He also testified in his deposition to having done
human and animal studies, although it is not clear what the subjects of these
20
In this context, organic means "of, Mating to, or containing carbon
compounds. . . ." MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 817 (10th ed. 1998) .
The chlorinated hydrocarbons at issue would also be organic as they are
presumably carbon compounds consisting of hydrogen, carbon, and chlorine .
studies were .2 1 So it is apparent that Dr. Waddell was certainly well educated
on the specific subjects of toxicology (how exposure to substances can have
harmful effects on the human body) ; safety issues concerning workplace
exposure to chlorinated hydrocarbons ; and, in general, the scientific research
method. The fact that he devoted his career to academics and research rather
than treating patients does not, by itself, make him less qualified or his
testimony less reliable or less helpful to the jury.22
D . Dr. Waddell's Opinions Have Sufficient
Scientific Basis to be Offered .
In determining whether an expert's opinion testimony based on a review
of literature should be admitted, other courts have considered not only the
individual's qualifications, but also whether a sufficient scientific basis exists
for their opinion:
21
22
Appellees' brief claims that Dr. Waddell performed animal and human studies
regarding solvents . But the portion of his deposition testimony that they cite in
support of this proposition does not specifically state the subject of the animal and
human studies :
Q. Well, Doctor, is it your belief that animal studies which formed the basis for
many of our concerns, overexposures to various elements are not valid because
they don't involve actual human subjects?
A: No, no, no. I've done many animal studies and I've also done human studies,
and I've done both and the whole question is how do you extrapolate from
animal to human.
See Siharath v. Sandoz Pharmaceuticals Corp. , 131 F.Supp.2d 1347, 1354
(N.D.Ga. 2001) . ("Dr. Dukes-whom Defendant most strenuously challengesis an
exceptionally qualified expert on the issue of adverse drug reactions. The fact that
he has chosen to spend his professional life in the world of public policy and
academics instead of clinical practice in no way reduces his expertise in the field of
adverse drug reaction science. Defendant's argument to the contrary minimizes
the contributions made to medical science by those who accept the call of public
service and selflessly remain in that service throughout the duration of their
careers.") .
12
Where proffered expert testimony is not based on independent
research, but instead on such a literature review, the party
proffering such testimony must come forward with other objective,
verifiable evidence that the testimony is based on scientifically
valid principles . One means of showing this is by proof that the
research and analysis supporting the proffered conclusions have
been subjected to normal scientific scrutiny through peer review
and publication. 2 3
Where the expert has not conducted independent research on the specific issue
in dispute, his opinions may still be sufficiently scientifically valid if supported
by objective sources :
Establishing that an expert's proffered testimony grows out of prelitigation research or that the expert's research has been subjected
to peer review are the two principal ways the proponent of expert
testimony can show that the evidence satisfies the first prong of
Rule 702 . Where such evidence is unavailable, the proponent of
expert scientific testimony may attempt to satisfy its burden
through the testimony of its own experts. For such a showing to
be sufficient, the experts must explain precisely how they went
about reaching their conclusions and point to some objective
source-a learned treatise, the policy statement of a professional
association, a published article in a reputable scientific journal or
the like-to show that they have followed the scientific method, as it
is practiced by (at least) a recognized minority of scientists in their
field . 24
Despite Dr. Waddell's apparent lack of independent research on TE or the
specific question of solvent exposure causing cognitive impairment, the
conclusions he reached from reviewing the relevant literature-that studies of
this subject were flawed and do not conclusively establish a causal
relationship--are nonetheless "backed up" by at least one scientific "objective
23
24
Doe, 440 F.Supp .2d at 470 (internal quotations marks omitted) ., (citing Daubert v.
Merrell Dow Pharmaceuticals, Inc., [Daubert II] 43 F.3d 1311, 1318 (9th Cir. 1995)
(opinion on remand to 9th Circuit from United States Supreme Court)).
Daubert II, 43 F.3d at 1318-19 .
13
source" showing that his conclusions are not totally inconsistent with the
scientific method .2s That objective source is found in the NIOSH (National
Institute of Occupational, Safety 8. Health) RFA (request for application), which
shows that at least a minority of scientists were concerned with the validity of
the prior studies. Dr. Waddell also cited one particular study (the Gade study)
that cast doubt on other studies finding a causative link between occupational
solvent exposure and cognitive impairment . According to Burton's brief, this
study "merely concluded that a group of painters who had previously been
exposed to solvents and diagnosed with [TE] using non-standardized testing,
did not have the disease based upon subsequent standardized neuropsychological testing." According to Dr. Waddell's deposition, the Gade study
discounted the value of earlier studies finding a positive causal link by finding
no difference in levels of cognitive impairment once they controlled for age, IQ,
and educational level. In sum, the Gade study cast doubt on some other
studies finding a causal link between solvent exposure and cognitive
impairment .
Certainly, a trial court as the gatekeeper should exclude a so-called
expert's unsupported assertions, the so-called expert's ipse dixit, from
reviewing literature .26 But under the facts of this case, Dr . Waddell's opinion
appears to have at least some support in the scientific community as shown by
2s
26
Daubert II , 43 F.3d at 1318-19.
Doe, 440 F.Supp .2d at 471 ; Goodyear Tire 8v Rubber Co. v. Thompson , 11 S.W.3d
575, 581 (Ky. 2000), (quoting Kumho Tire Co., Ltd . v. Carmichael , 526 U.S. 137,
157, 119 S .Ct. 1167, 143 L.Ed .2d 238 (1999)) .
See
14
published requests for further studies with more controls and the Gade study.
We recognize that where, as here, an expert is not testifying from the expert's
own independent scientific research but has been asked for an opinion for
purposes of litigation, the admissibility of his testimony must be carefully
scrutinized .27 But where, as here, the expert is highly qualified in relevant
specific fields of study; and the expert's opinions or conclusions are supported
by objective sources showing compliance with the scientific method, "as
practiced by (at least) a recognized minority of scientists in their field[,]"2s the
evidence is sufficiently reliable to be admitted in court so long as it is relevant .
E. Dr. Waddell's Testimony Relevant to Key Issue in Dispute .
Not only was Dr. Waddell sufficiently qualified to render an opinion and
his opinion sufficiently supported on a scientific basis, his testimony was
relevant because it addressed the disputed issue of general causation: whether
the solvents Burton was exposed to have been shown to cause cognitive
impairment and long-term brain damage . Dr. Waddell testified to having
reviewed the scientific literature regarding the effects of long-term occupational
exposure to solvents in the workplace . In his opinion, studies to that point
failed to establish conclusively that long-term occupational exposure to
27
28
Daubert 11, 43 F.3d at 1317 . ("One very significant fact to be considered is whether
the experts are proposing to testify about matters growing naturally and directly
out of research they have conducted independent of the litigation, or whether they
have developed their opinions expressly for purposes of testifying. That an expert
testifies for money does not necessarily cast doubt on the reliability of his
testimony, as few experts appear in court merely as an eleemosynary gesture. But
in determining whether proposed expert testimony amounts to good science, we
may not ignore the fact that a scientist's normal workplace is the lab or the field,
not the courtroom or the lawyer's office .") .
Daubert II, 43 F.3d at 1319 .
15
solvents caused cognitive impairment . Dr. Waddell criticized the studies on
several grounds. He criticized many of the studies as not identifying
specifically what type of solvent was studied, since there are many different
solvents with many different chemical properties . He also stated that the
studies failed to provide adequate controls because they did not control for
factors such as I.Q ., age, or educational level. He also criticized them as not
establishing dose-response levels (indicating at what dose exposure is safe
versus the dose at which the substance has a harmful effect) . He also noted
that many studies involved animals exposed to massive doses of solvents and
stated that it could be very difficult to infer anything from these studies about
the effects of long-term, small-dose exposure to humans .
We find no error in the trial court's allowing Dr. Waddell's critique of the
studies upon which Burton's general causation experts based their opinions.
His testimony essentially presented another voice and another view in the
dialogue over whether causation was proven. Burton's experts essentially
presented the opposite voice and opposite view in this dialogue, concluding on
the basis of their reviews of literature that solvents had been shown to cause
cognitive impairment .29 Just as one of Burton's experts, Dr . Linz, admitted
that the general causation question here was somewhat controversial among
the scientific community with criticism of studies and with a need for further
29
Because the qualifications of Burton's experts who expressed opinions on general
causation from their review of the literature are not disputed on appeal., we will not
compare their qualifications with Dr . Waddell's or review their opinions on this
matter in detail to assess their reliability.
16
research, we find no error in the trial court's allowing Dr. Waddell to critique
the literature and provide an opposing viewpoint in light of his specific
qualifications and the support for his positions in objective scientific sources . 30
So we find no error in the admission of Dr. Waddell's testimony.
F.
No Abuse of Discretion in Disallowing References to
CSX Workers in Studies of TE.
Burton contends that the trial court erred by disallowing witnesses'
reference to CSX workers being involved in a study, which was conducted by
Dr. RoBards, linking solvent exposure and brain damage or cognitive
impairment . Before the trial, Dr. RoBards received a serious injury and was
unable to appear and testify at trial. Dr. Linz testified at least briefly about the
findings of Dr. RoBards's study, as well as others, although he was limited by a
ruling of the trial court to referring to the subjects involved in Dr. RoBards's
study as either "railroad workers" or "those affected by solvents."
Burton argues that he should have been allowed to refer to the study
subjects as "CSX workers" to emphasize for the jury that the solvents he was
exposed to at work were capable of causing his cognitive impairment . But we
find no abuse of discretion in the trial court's ruling. Burton has not shown
where he laid a foundation showing that the CSX workers involved in the
30
We believe that allowing in both sides of the debate as to this somewhat
controversial issue so long as the experts on both sides are sufficiently qualified
and offer opinions with some degree of scientific reliability is proper. As Justice
Schroder writing for this Court aptly stated, we have not required scientific
certainty for admissibility under Daubert. Human 8s Armstrong, P.S.C . v.
Gunderson , 2006-SC-000175-DG and 2006-SC-000179-DG, 2008 WL 1849798 at
** 11-13,
S .W.3d
(Ky. April 24, 2008) .
17
RoBards study were subject to similar conditions at work as he was. 31 Given
this lack of foundation, we cannot find an abuse of discretion in the trial
court's forbidding pointed reference to the RoBards study's subjects as "CSX
workers" because the probative value of identifying the study's subjects as
such was outweighed by the risk of undue prejudice. Without any indication
that other "CSX workers" were subject to similar workplace conditions as
Burton-such as working in the same area or being exposed to the same types
and amounts of solvents--the fact that other CSX workers may have suffered
similar symptoms is of diminished probative value in proving that Burton's
ailments were caused by exposure to solvents at CSX.32 Furthermore,
identifying the RoBards study's subjects as CSX workers without laying a
proper foundation of similar circumstances would certainly pose a risk of
31
32
In arguing that evidence of other CSX workers suffering similar symptoms should
have been admitted as relevant evidence, Burton cites cases that require that a
sufficient foundation be laid by showing that the similar occurrences arose under
similar conditions. See, e.g., Montgomery Elevator Co. v. McCullough, 676 S.W.2d
776, 783 (Ky. 1984) ("In a products liability design defect case, such evidence of
similar product failures under similar conditions is relevant and admissible") ;
Bush v. Michelin Tire Corp., 963 F.Supp . 1436, 1451 (W.D.Ky. 1996) ("Most
circuits have held that subsequent accidents are admissible to prove causation and
dangerousness of a condition, if a proper foundation is laid. Those Kentucky
courts which have admitted evidence of other accidents or product failures, have
uniformly done so where there was a sufficient similarity of conditions and the
evidence was not so technical as to cause undue confusion or waste of time .")
(citations and internal quotation marks omitted) .
Arguably, other CSX workers reporting symptoms consistent with TE might make it
more probable that Burton suffered TE as a result of working for CSX.
See KRE 401 (defining relevant evidence as "evidence having 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."). But
KRE 402 states that although relevant evidence is generally admissible, there are
certain exceptions under the Kentucky Rules of Evidence and other sources.
KRE 403 sets forth such an exception and holds that relevant evidence may be
excluded if its probative value is outweighed by undue prejudice or confusion of the
issues.
18
encouraging the jury to think that if other CSX workers were making the same
sort of claims, then Burton's ailments must have also been caused by
workplace solvent exposure even if there was insufficient proof of his individual
exposure and a causal link to his symptoms. Thus, the trial court did not
abuse its discretion under KRE 403 .
IV. CONCLUSION.
For the foregoing reasons, the judgment of the Court of Appeals is hereby
affirmed.
All sitting. All concur.
COUNSEL FOR APPELLANT :
Kenneth L. Sales
Joseph Donald Satterley
Corey Ann Finn
Paul Jason Kelley
Sales, Tillman, Wallbaum, Catlett & Satterley
1900 Waterfront Plaza
325 West Main Street
Louisville, Kentucky 40202-4251
COUNSEL FOR APPELLEE:
Edward H. Stopher
David T. Klapheke
Raymond G. Smith
Scott Allen Davidson
Boel, Stopher 8. Graves, LLP
2300 Aegon Center
400 West Market Street
Louisville, Kentucky 40202
~Tvurf
2006-SC-000695
~fimfurk
G
APPELLANT
DAVID RAY BURTON
CAN REVIEW FROM COURT OF APPEALS
NOS. 2005-CA-000226-MR AND 2005-CA-000455-MR
JEFFERSON CIRCUIT COURT NO . 00-CI-00598
APPELLEE
CSX TRANSPORTATION, INC.
ORDER OF CORRECTION
The Opinion of the Court by Justice Minion, rendered October 23,
2008, is CORRECTED on its face by the substitution of pages 1 and 7
attached in lieu of the original pages 1 and
of the opinion . Said
correction does not affect the holding.
ENTERED : December 17, 2008 .
v
F JUSTICE JOHN D . MINT
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