TRENTON, N.J. (Legal Newsline) - A plaintiff expert who cited an article from the American Cancer Society website to explain why he thought a smoker’s cancer was caused by diesel smoke was properly excluded from testifying, a New Jersey appeals court ruled, upholding the dismissal of a lawsuit by a railroad worker’s widow against Conrail.
Diane Murray sued Conrail over the death of her husband Joseph, an 80-pack-a-year smoker who contracted tongue, throat and lung cancer. Joseph worked as a brakeman/conductor from 1976 to 2011. His widow hired Hernando Perez, an industrial hygienist; and Dr. Mark Levin, an oncologist, as experts to testify diesel smoke and asbestos fibers caused her husband’s death.
Conrail moved to strike Dr. Levin’s testimony – which was vital to Murray’s case – after he acknowledged in depositions that he cited only one article about diesel exhaust and cancer from the American Cancer Society website to support his opinion. He said he didn’t read Perez’s report or reviewed Joseph’s personnel or medical files from Conrail. When asked why he didn’t cite more medical literature to support his opinion, he said "it would be superfluous.”
Dr. Levin also testified he’d never visited a rail yard in a professional setting and had no knowledge of Joseph’s job duties "besides what you see in the movies." His basis for concluding Joseph was exposed to cancer-causing levels of diesel smoke was the testimony of another Conrail employee who never worked with the deceased man.
In April 2021 the plaintiffs dropped the tongue and throat cancer claims, blaming only the lung cancer on Conrail.
“That agreement rendered irrelevant much of Dr. Levin's report, in which he intertwined smoking, asbestos, and diesel exhaust as contributory causes of decedent's tongue and lung cancers,” the Appellate Division of New Jersey Superior Court observed.
The court upheld the trial judge’s decision to prevent Dr. Levin from testifying, thus eliminating the plaintiff’s causation evidence and requiring dismissal. The expert improperly ruled in diesel smoke, using what he described as “differential diagnosis,” the court ruled, while ruling out cigarette smoking with no evidence. Differential diagnosis is process doctors use to determine the cause of a patient’s symptoms, but expert witnesses often use it to describe their process of explaining why a particular disease was caused by a plaintiff’s exposure to toxins or pollutants.
Dr. Levin “starts with the assumption that because decedent worked as a brakeman, he must have been exposed to toxic levels of cancer-causing diesel exhaust and then Dr. Levin leaps to the conclusion that decedent's employment at Conrail was a substantial contributing factor in the development of his tongue and lung cancer,” the appeals court concluded. “His report could apply equally to anyone who has ever worked as a Conrail brakeman and developed cancer.”