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Norfolk Southern Railway Co. v. Estate of Wagers8/25/2005
FOR PUBLICATION
Norfolk Southern Railway Company ("Norfolk") appeals the trial court's denial of its motion to strike and its motion for summary judgment in the suit brought against it by The Estate of Robert G. Wagers, Sr., Tracy Wagers, Personal Representative ("the Estate"), raising the following issues for review:
I. Whether the trial court should have stricken the testimony of the Estate's expert witness on causation, Dr. David K. Parkinson, because Parkinson's testimony does not meet the standard for admissibility of expert testimony in toxic exposure cases.
II. Whether the trial court erred in denying Norfolk's motion for summary judgment because the Estate has failed to present any evidence on the amount or "dose" of the decedent's exposure.
We affirm.
FACTS AND PROCEDURAL HISTORY
Robert Wagers, Sr. ("Wagers") worked for Norfolk as a track laborer and backhoe operator. In September 1999, he was diagnosed with small cell carcinoma of the lung. He died of lung cancer in May 2000. The Estate filed its complaint against Norfolk under the Federal Employer's Liability Act (FELA), contending that Wagers's lung cancer was caused by his workplace exposure to asbestos fibers, diesel fumes and exhaust, and herbicides. Wagers also had a significant history of smoking cigarettes. The Estate relied on the opinion of Parkinson, who acknowledged in an opinion letter that Wagers had both personal and work-related exposures that can cause lung cancer. He stated that "Mr. Wagers['] exposure to diesel fumes and asbestos played a significant role in the induction of his lung cancer. I cannot estimate what proportion of risk was to cigarette smoking and what proportion to his exposures in the workplace." Appellant's Appendix at 488. Subsequently, Parkinson was deposed and testified that he had no knowledge about the frequency with which Wagers may have encountered or used materials containing asbestos and that he assumed, based on his review of Wagers's co-workers' depositions, that Wagers would have worked with diesel equipment four to five hours per day. Parkinson agreed that some dosage level is required before a person would develop asbestosis, but that he did not know at what level Wagers was exposed. He testified that he could not state to any reasonable degree of medical certainty that Wagers would not have developed lung cancer if he had not been exposed to any asbestos or diesel fumes. He further stated that he had no specific quantitative data about Wagers's exposure to asbestos and diesel fumes.
In October 2003, Norfolk filed a Motion to Exclude and Motion for Summary Judgment. It argued that Parkinson's opinion on the cause of Wagers's lung cancer should be excluded under Indiana Rules of Evidence 702(b), 401, 402, and 403. In addition, it argued that because the Estate offered no admissible expert testimony as to medical causation, it was entitled to summary judgment. In January 2004, the trial court denied Norfolk's Motion to Exclude and Motion for Summary Judgment. In February 2004, the trial court certified its order for interlocutory appeal, and we accepted jurisdiction of the case.
DISCUSSION AND DECISION
The Estate has brought its claim against Norfolk under FELA. FELA imposes upon the railroad a non-delegable duty to use reasonable care in furnishing employees with a safe place to work and promulgates a statutory remedy for injured railroad workers. N. Indiana Commuter Transp. Dist. v. Marron, 812 N.E.2d 185, 188 (Ind. Ct. App. 2004); Baltimore & Ohio Ry. Co. v. Taylor, 589 N.E.2d 267, 272 (Ind. Ct. App. 1992), trans. denied. FELA is to be liberally construed, but it is not a workers'
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