Expert Testimony Required To Establish "Cumulative Trauma" Injuries

In Federal Employer's Liability Act (FELA) negligence suit by employee against defendant railroad company for cumulative trauma disorders that forced his retirement, excluding under FRE 702 expert testimony by ergonomist about the dangers inherent in a rail yard; expert excluded as he could not address whether the plaintiff's specific work in the rail yard caused his injuries, in Myers v. Illinois Central Railroad Co., __ F.3d __ (7th Cir. Dec. 15, 2010) (No. 10-1279)

When a party has the burden to prove causation of a medical condition, differential diagnosis is a frequent tool of choice. A trend in this form of proof, often seen in the toxic tort arena, involves whether a party must present expert testimony as to specific causation. In a recent case, the Seventh Circuit explains some of the twists and turns that led it to affirm a trial court's summary judgment for the defendant in a case of negligence, because of the expert failed to address the key question of the link necessary between a possible cause and the injury.

In the case, plaintiff Myers worked nearly thirty years with the Illinois Central Railroad, but eventually was forced to retire due to cumulative trauma disorders. He claimed his injuries over the years at the railroad were the reason for the disorder. Before trial, the court conducted a Daubert hearing on experts proffered by the plaintiff. The court decided to strike the experts, including an ergonomist, whose testimony was merely an "analysis of railroad conditions," but "not focused on Myers's work there" and so insufficiently reliable under FRE 702.

The Seventh Circuit explained the indispensability of expert evidence to make this showing. While expert testimony may not be required in cases where "a layperson can understand what caused the injury." The court cited examples of cases dispensing with expert testimony -- explaining that a broken leg resulted from an accident may not require proof with an expert. But where "there is no obvious origin to an injury and it has multiple" causes a party will find "it necessary to establish causation.” Myers, __ F.3d at __ (citing Claar v. Burlington N.R.R. Co., 29 F.3d 499, 504 (9th Cir. 1994) (noting “expert testimony is necessary to establish even that small quantum of causation required by FELA”))

In dismissing the appeal, the Seventh Circuit noted that the plaintiff and his experts failed to "point to a specific injury or moment that brought on the medical problems" as they were part of a "[c]umulative trauma disorder." This "disorder" looks not to a specific injury, but rather to repetitive work over a long period of time.” Myers, __ F.3d at __ (citing Gutierrez v. Excel Corp., 106 F.3d 683, 685-86 (5th Cir. 1997) (noting that cumulative trauma disorders "are generally not caused by any one specific traumatic event, there are certain risk factors associated with cumulative trauma, including repetition, force, vibration, cold, and posture”)).

When an injury is of this nature occurs, determining what caused it is not usually obvious to a layman and expert testimony must be presented. For most cumulative trauma injuries, courts follow the general principle that a layman could not discern the specific cause and thus they have required introduction of reliable expert testimony about causation. Myers, __ F.3d at __ (citing Brooks v. Union Pacific R. Co., 620 F.3d 896, 899-900 (8th Cir. 2010) (expert needed for degenerative disk disease))

Expert testimony was required in the plaintiff's case as the cause of the plaintiff's injuries would not be obvious to a layperson. As the circuit explained:

To be clear, the ergonomist could testify as an expert about how dangerous the railroad yard's conditions were, but that does not mean he is qualified to testify about what caused Myers's injuries. This is a scenario similar to what many plaintiffs face in toxic tort cases: an expert can testify that a chemical can cause the plaintiff's malady but he may not be qualified to testify that this chemical caused this particular plaintiff's malady. 'The question we must ask is not whether an expert witness is qualified in general, but whether his qualifications provide a foundation for [him] to answer a specific question.' Here, the specific question is whether Myers's work for the Railroad caused his ailments. Because the ergonomist could not answer that question, to avoid summary judgment Myers would have to establish evidence of specific causation from another source.
Myers, __ F.3d at __ (citing Gayton v. McCoy, 593 F.3d 610, 617 (7th Cir. 2010) (emphasis added)).

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