WILMINGTON, Del. (Legal Newsline) – A former railroad worker who responded to lawyer advertising to sue BNSF has lost his lawsuit because his lawyers did not secure an expert that a Delaware judge found to be reliable.
Judge Charles Butler issued his ruling in the case on May 13 in the case of former BNSF Railway employee Keith Wilant and his lawyers – Dale Bowers of Delaware and the firm Bern Cappelli of Pennsylvania. Butler alleged exposure to diesel fumes caused his bladder cancer.
BNSF attacked Wilant’s causation and standard-of-care experts, as well as claiming the suit was filed outside the statute of limitations.
Butler ruled the testimony of causation expert Dr. Michael Harrison did not meet the Daubert standard, which helps keep juries from hearing theories that aren’t accepted in the expert’s field. The easier standard to meet, known as Frye, has been criticized by defendants for introducing “junk science” into courtrooms.
Dr. Harrison relied on a report from the International Agency for Research on Cancer to back up his link between diesel exhaust and bladder cancer. But Butler’s opinion says the IARC stopped short of saying fumes cause cancer.
“Thus, Dr. Harrison’s conclusions are not borne out by the evidence he cites in support,” Butler wrote.
BNSF argued there are other risk factors for bladder cancer in Wilant’s history – including drinking at least six beers every day for more than 40 years.
“At his deposition, Dr. Harrison conceded that Plaintiff’s alcohol use was a contributing factor in his bladder cancer,” Butler wrote.
“But if alcohol use was a contributing factor in Plaintiff’s contracting bladder cancer, what does that do to Dr. Harrison’s differential diagnosis?
“The expert actually found a differential diagnosis. A differential diagnosis analysis is only useful to the Plaintiff if it excludes other causes.”
Butler noted that courts have ruled similar to him when weighing the causation testimony, citing decisions in Texas, Louisiana and Nebraska.