Hellen Wilson v. CSX Transportation ( 2002 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
November 12, 2002 Session
HELLEN M. WILSON v. CSX TRANSPORTATION, INC.
Appeal from the Circuit Court for Hamilton County
No. 97CV1509 W. Neil Thomas, III, Judge
FILED MARCH 18, 2003
No. E2002-00291-COA-R9-CV
This interlocutory appeal raises the question of the admissibility of the testimony of three
expert witnesses which the Plaintiff, Hellen M. Wilson, sought to present at trial. The Trial Court
excluded the expert testimony of Dr. William J. Nassetta and certified pursuant to T.R.A.P. Rule 9
the following question for this Court: “whether the testimony of the expert witness, William J.
Nassetta, M.D., as reflected in [his] attached affidavit,. . .is admissible under the doctrine of the
Tennessee Supreme Court decision in McDaniel v. CSX Transportation, Inc.” The Trial Court also
granted permission to CSX Transportation (CSXT) to appeal its ruling admitting the testimony of
two other expert witnesses offered by the Plaintiff. We hold that the testimony of all three expert
witnesses is admissible under the principles enunciated in McDaniel.
Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court Affirmed in Part
and Reversed in Part; Cause Remanded
HOUSTON M. GODDARD , P.J., delivered the opinion of the court, in which HERSCHEL P. FRANKS and
D. MICHAEL SWINEY, JJ., joined.
Patrick S. O’Brien and Newton G. McCoy, St. Louis, Missouri, and Clarence E. Walker,
Chattanooga, for the Appellant, Hellen M. Wilson
Wayne L. Robbins, Jr. and Mary Taylor Gallagher, Nashville, for the Appellee, CSX Transportation,
Inc.
OPINION
Mrs. Wilson brought this action against CSXT under the Federal Employer’s Liability Act
(FELA), seeking damages for the death of her husband, Ricky J. Wilson, who was employed by
CSXT as a carman. Mr. Wilson died on November 12, 1996 as a result of a malignant brain tumor
known as a glioblastoma multiforme, and acute myelogenous leukemia. Mr. Wilson was diagnosed
with brain cancer at age 40 and died at age 42. Mrs. Wilson alleges several theories of negligence
in connection with his exposure to various chemicals at his workplace, which she asserts caused or
contributed to cause his brain cancer and leukemia.
CSXT moved for summary judgment on November 9, 2001, alleging no genuine issue of
material fact regarding causation of Mr. Wilson’s injuries and death. CSXT presented the testimony
of several experts in support of its assertion that there is no proven causal connection between the
chemicals to which Mr. Wilson was exposed and his brain cancer and leukemia.
In support of her opposition to summary judgment, Mrs. Wilson presented the testimony of
Dr. James E. Girard, a chemist, who opined, inter alia, as follows:
It is my expert opinion, to a reasonable degree of scientific certainty
that Mr. Ricky Wilson’s sickness and death, were caused by his
exposure to chemicals while he was employed as a carman [for] CSX
Transportation. He was exposed repeatedly to diesel exhaust. The
chemicals which have been described above, namely benzene,
toluene, xylene and methylene diisocyanate, toluene diisocyanate,
cadmium, and perchloroethylene are all inhalation hazards and can
also be absorbed through the skin. According to DuPont Chemical
Company, “repeated or prolonged overexposure to solvents may lead
to permanent brain and nervous system damage.”
Mr. Wilson was exposed to benzene, a known carcinogen.
Benzene exposure is recognized as a cause of acute myelogenous
leukemia, and has been shown to increase the incidence of neoplasms
at multiple sites in chronic inhalation and gavage studies in rodents.
He was also exposed to cadmium, a known carcinogen. Cadmium
and cadmium compounds are known to be human carcinogens based
on sufficient evidence of carcinogenicity from studies in humans
including epidemiological and mechanistic information which
indicate a causal relationship between exposure to cadmium and
cadmium compounds and human cancer. He was also exposed to
toluene diisocyanate. Toluene diisocyanate is reasonably anticipated
to be a human carcinogen based on sufficient evidence of
carcinogenicity in experimental animals.
(Emphasis in original). Dr. Vincent F. Garry, a pathologist and toxicologist, testified that in his
opinion the group of chemicals to which Mr. Wilson was exposed “was eminently involved in a
causal relationship to his cancer.”
The Trial Court ruled that the expert testimony of Drs. Girard and Garry was admissible and
sufficient to create a genuine issue of fact as to causation. The Court treated CSXT’s arguments with
regard to the testimony of Plaintiff’s expert Dr. William J. Nassetta as a motion in limine to exclude
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Dr. Nassetta’s testimony. The Court ruled Dr. Nassetta’s testimony inadmissible, stating the
following in regard to his affidavit:
I think if you take the medical terminology out of the affidavit, Dr.
Nassetta, regardless of what he says in his last paragraph, Dr.
Nassetta’s affidavit can be boiled down to say, we have a hunch. We
don’t have any studies or statistical data. We have a hunch and we
think at sometime in the future this malady will connected with these
compounds.
I don’t think that’s enough, I really don’t, so I’m going to
grant the Motion in Limine with respect to Dr. Nassetta.
* * *
[Counsel for Plaintiff]: Dr. Nassetta is not allowed to testify at all?
Court: Right. I just think it’s too speculative, Pat. I really do.
The Trial Court granted Mrs. Wilson’s motion seeking permission for an interlocutory appeal
under Tenn. R. App. P. 9. CSXT filed a similar motion which also was granted, and this Court
granted an interlocutory appeal to both parties.
We will first address CSXT’s argument made in its brief that “pursuant to Rule 56.03 [of the
Tennessee Rules of Civil Procedure], the court should have taken all of the statements set forth in
CSXT’s Concise Statement of Material Facts and Supplemental Concise Statement of Material Facts
as true because the Plaintiff did not, as required by that rule, file any pleading disputing the Concise
Statements of Facts filed by CSXT.”
Mrs. Wilson’s response to CSXT’s motion for summary judgment was styled “Plaintiff’s
additional concise statement of facts and memorandum of law in opposition to Defendant’s Motion
for Summary Judgment.” Although her response does not, in corresponding numbered paragraphs,
separately respond to each claimed undisputed fact set forth in the motion for summary judgment,
it does set forth at length the facts Mrs. Wilson claims are established by the record, and her
assertions as to why they establish a genuine issue of material fact for trial.
This Court was recently presented with an argument very similar to that presented by CSXT
in the case of First Citizens Bank of Cleveland v. Cross, 55 S.W.3d 564 (Tenn.Ct.App. 2001). The
Cross Court stated as follows:
The appellees argue that summary judgment was properly granted to
them because, so the argument goes, Cross failed to comply with
various provisions of Tenn.R.Civ.P. 56. First, they contend that
Cross did not comply with Tenn.R.Civ.P. 56.03, which requires a
non-moving party to respond to each fact set forth by the moving
party by either (1) agreeing that the fact is undisputed; (2) agreeing
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that the fact is undisputed for the purposes of the motion only; or (3)
demonstrating, with specific citations to the record, that the fact is
disputed.
* * *
We find that Cross' response is substantially in compliance with the
requirements of Rule 56.03. Cross' response adequately sets forth the
facts that are undisputed. Furthermore, it adequately sets forth, with
appropriate citations, those facts that she alleges are in dispute.
Cross, 55 S.W.3d at 571. In the case at bar, we have reviewed Mrs. Wilson’s response and find it
is substantially in compliance with Rule 56.03.
In its appeal, CSXT argues that the Trial Court erred in finding the testimony of Dr. Girard
and Dr. Garry admissible and sufficient to establish a genuine issue of material fact regarding
causation of Mr. Wilson’s death. In the case of McDaniel v. CSX Transportation, Inc., 955 S.W.2d
257 (Tenn.1997), the Supreme Court addressed in depth the admissibility of expert testimony as
contemplated by Rule 702 and 703 of the Tennessee Rules of Evidence. In McDaniel, which was
also a FELA case, the Court stated as follows:
After examining the basic legal principles governing the admissibility
of scientific evidence and the change in direction by the federal
courts, we turn to Tennessee to clarify our standard of admissibility.
In general, questions regarding the admissibility, qualifications,
relevancy and competency of expert testimony are left to the
discretion of the trial court. State v. Ballard, 855 S.W.2d 557, 562
(Tenn.1993). The trial court's ruling in this regard may only be
overturned if the discretion is arbitrarily exercised or abused. Id. The
specific rules of evidence that govern the issue of admissibility of
scientific proof in Tennessee are Tenn. R. Evid. 702 and 703. The
former provides:
If scientific, technical, or other specialized knowledge
will substantially assist the trier of fact to understand
the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an
opinion or otherwise.
And Tenn. R. Evid. 703 states:
The facts or data in the particular case upon which an
expert bases an opinion or inference may be those
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perceived by or made known to the expert at or before
the hearing. If of a type reasonably relied upon by
experts in the particular field in forming opinions or
inferences upon the subject, the facts or data need not
be admissible in evidence. The court shall disallow
testimony in the form of an opinion or inference if the
underlying facts or data indicate lack of
trustworthiness.
The plaintiffs contend that the expert testimony in this case is reliable
and that it will substantially assist the jury on the issue of causation.
The defendant argues that irrespective of Frye or Daubert, there must
be adherence to the strict requirements contained in the language of
the rules and also a reasonable standard for proving causation. It
contends that the plaintiffs' scientific evidence is unreliable and must
be excluded. The defendant argues that an epidemiological study
must show a relative risk of greater than 2.0, which several courts
have said means that a disease more likely than not was caused by the
specific agent or event.1 See Daubert v. Merrell Dow
Pharmaceuticals, Inc., 43 F.3d 1311 (9th Cir.1995), cert. denied, 516
U.S. 869, 116 S. Ct. 189, 133 L. Ed. 2d 126 (1995); DeLuca v. Merrell
Dow Pharmaceuticals, Inc., 791 F. Supp. 1042 (D.N.J.1992), aff'd, 6
F.3d 778 (3rd Cir.1993). As discussed herein, the factor is certainly
relevant but we reject the contention that it should be adopted as
matter of law.
Although the advisory comments to Rule 702 indicate that Tennessee
has followed the Frye test in analyzing the admissibility of scientific
evidence, one commentator, recognizing the similarity between
Tennessee Rule 702 and Federal Rule Evid. 702, has raised the
question of whether the Frye test of "general acceptance" should be
abolished in Tennessee. N. Cohen, S. Sheppeard, and D. Paine,
Tennessee Law of Evidence, § 401.20 at 124, n. 233. Indeed, as the
trial court in this case noted, there is some evidence of a departure
from the strict adherence to the Frye test by courts in this State.
In our view, determining the standard for the admissibility of
scientific evidence requires an analysis of the unique language found
in Rules 702 and 703 of the Tennessee Rules of Evidence. For
instance, Tenn. R. Evid. 702 requires that the scientific evidence
1
A relative risk of 2.0 means essen tially that the group which is studied has a risk which is twice that of the
general po pulatio n of co ntracting the disease under study.
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"substantially assist the trier of fact," while its federal counterpart
requires only that the evidence "assist the trier of fact." Fed.R.Evid.
702. This distinction indicates that the probative force of the
testimony must be stronger before it is admitted in Tennessee. See,
e.g., Weinstein, Rule 702 of the Federal Rules of Evidence is Sound;
It Should Not Be Amended, 138 F.R.D. 631, 636 (1991).
Similarly, Tenn. R. Evid. 703 states that "[t]he court shall disallow
testimony in the form of an opinion or inference if the underlying
facts or data indicate lack of trustworthiness." There is no similar
restriction in the federal rule. Fed.R.Evid. 703. Thus, as one writer
has observed, "the additional language ... [in the Tennessee rule] is
obviously designed to encourage trial courts to take a more active role
in evaluating the reasonableness of the expert's reliance upon the
particular basis for his or her testimony." R. Banks, Some
Comparisons Between the New Tennessee Rules of Evidence and the
Federal Rules of Evidence, Part II, 20 Mem.S.U. L.Rev. 499, 559
(1990). In sum, even though the facts and data need not be
admissible, they must be reviewed and found to be trustworthy by the
trial court.
Based on the foregoing analysis, we conclude that Tennessee's
adoption of Rules 702 and 703 in 1991 as part of the Rules of
Evidence supersede the general acceptance test of Frye. In
Tennessee, under the recent rules, a trial court must determine
whether the evidence will substantially assist the trier of fact to
determine a fact in issue and whether the facts and data underlying
the evidence indicate a lack of trustworthiness. The rules together
necessarily require a determination as to the scientific validity or
reliability of the evidence. Simply put, unless the scientific evidence
is valid, it will not substantially assist the trier of fact, nor will its
underlying facts and data appear to be trustworthy, but there is no
requirement in the rule that it be generally accepted.
Although we do not expressly adopt Daubert, the non-exclusive list
of factors to determine reliability are useful in applying our Rules 702
and 703. A Tennessee trial court may consider in determining
reliability: (1) whether scientific evidence has been tested and the
methodology with which it has been tested; (2) whether the evidence
has been subjected to peer review or publication; (3) whether a
potential rate of error is known; (4) whether, as formerly required by
Frye, the evidence is generally accepted in the scientific community;
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and (5) whether the expert's research in the field has been conducted
independent of litigation.
Although the trial court must analyze the science and not merely the
qualifications, demeanor or conclusions of experts, the court need not
weigh or choose between two legitimate but conflicting scientific
views. The court instead must assure itself that the opinions are
based on relevant scientific methods, processes, and data, and not
upon an expert's mere speculation. See, e.g., Joiner, 78 F.3d at 530.
The trial court should keep in mind that the preliminary question
under Tenn. R. Evid. 104 is one of admissibility of the evidence.
Once the evidence is admitted, it will thereafter be tested with the
crucible of vigorous cross-examination and countervailing proof.
After that occurs, a defendant may, of course, challenge the
sufficiency of the evidence by moving for a directed verdict at the
appropriate times. See Tenn. R. Civ. P. 50. Yet it is important to
emphasize that the weight to be given to stated scientific theories, and
the resolution of legitimate but competing scientific views, are
matters appropriately entrusted to the trier of fact. See Joiner, 78
F.3d at 534-35 (Birch, J., concurring).
We recognize that the burden placed on trial courts to analyze and to
screen novel scientific evidence is a significant one. No framework
exists that provides for simple and practical application in every case;
the complexity and diversity of potential scientific evidence is simply
too vast for the application of a single test. See Developments in the
Law--Confronting the New Challenges of Scientific Evidence, 108
Harv.L.Rev. 1481, 1513-1516 (1995). Nonetheless, the preliminary
questions must be addressed by the trial court, see, Tenn. R. Evid.
104, and they must be addressed within the framework of rules 702
and 703.
APPLICATION OF STANDARD
The trial court correctly foresaw the trend away from Frye and also
used the factors set forth in Daubert as a framework for analysis. As
it observed, the scientific theory that exposure to solvents may cause
toxic encephalopathy has been tested frequently over a period of 25
years. Because no precise diagnostic device or biological mechanism
can isolate the causal factor, the relevant tests have been
epidemiological studies. The experts in this case testified at length
about the field of epidemiology and the use of cohort and case-control
studies. The experts agreed that epidemiological studies have been
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used to test the hypothesis that exposure to solvents causes
encephalopathy and that numerous studies support a causal
relationship. These studies have been reviewed, reconstructed,
published in leading journals in the field, and subjected to peer
review. Although the "positive" studies have been criticized for
failing to account for confounding factors, the diagnosis is recognized
in medical textbooks and journals as well as by several national and
world health organizations. We also observe that the research in this
area, including that of several of the plaintiffs' experts, was conducted
independently of this litigation.
Accordingly, we agree with the trial court's finding that the evidence
will substantially assist the jury to understand the evidence and to
determine a fact in issue. We also agree with the trial court's
conclusion that the methodology and principles underlying the
scientific evidence are sufficiently trustworthy and reliable to be
presented to the trier of fact. The trial court is not required to
determine whether it agrees with the evidence and should not
substitute its view for the trier of fact. It should allow the jury to
consider legitimate but conflicting views about the scientific proof.
Provided the evidence is scientifically valid, criticisms of it and
opposing views may be elicited on cross examination and/or
established in the defendant's case. That is the essence of the lawsuit.
CONCLUSION
We have concluded that the scientific evidence proffered by the
plaintiffs satisfies the requirements of Tenn. R. Evid. 702 and 703,
and that the trial court did not abuse its discretion in admitting it into
evidence.
McDaniel, 955 S.W.2d 257, 263-66 (Tenn. 1997)(footnotes omitted); see also Hand v. Norfolk
Southern Ry. Co., an unreported opinion of this Court filed in Knoxville on June 2, 1998.
Our review of the evidence in light of the foregoing, including the reaffirmation of the
discretion accorded trial judges in the admission of expert testimony, persuades us that in this case
the Trial Judge was correct in finding that the expert witness testimony of Dr. Garry and Dr. Girard
offered on behalf of the Plaintiff met the requirements of Rule 702 and 703 of the Tennessee Rules
of Evidence, and that the Trial Court did not abuse its discretion in the admission thereof.
We now turn our attention to the proffered expert testimony of Dr. Nassetta. In its order
granting permission to Mrs. Wilson to seek an interlocutory appeal, the Trial Court certified the
following question to be answered by this Court:
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Whether the testimony of the expert witness, William J. Nassetta,
M.D., as reflected in the attached affidavit of Dr. William J. Nassetta
is admissible under the doctrine of the Tennessee Supreme Court
decision in McDaniel v. CSX Transportation, Inc., 955 S.W.2d 257
(Tenn.1997).
We first address Dr. Nassetta’s qualifications as an expert witness. CSXT argues that Dr.
Nassetta was not shown to be, in the words of Tenn.R.Evid. 702, “a witness qualified as an expert
by knowledge, skill, experience, training, or education.” CSXT’s attack on Dr. Nassetta is based
solely upon its argument that he is unqualified as an expert, as it states in its brief that “the issue
before this court, is the qualification of Dr. Nassetta himself, as opposed to the validity of his
scientific studies,” and “the question does not revolve around the validity of the science but rather
around Dr. Nassetta’s qualifications to present the opinions.”
It is clear to us from both the Court’s comments and its wording of the question certified for
appeal that its ruling was based on the finding that Dr. Nassetta’s affidavit was too speculative and
that it did not rely on any studies or statistical data to support his opinions. There is nothing in the
record to suggest that the Court found Dr. Nassetta unqualified to give an opinion at all; in fact, the
Court ruled that CSXT’s “Motion to Strike the affidavit of Dr. Nassetta is not well taken. The court
has considered the affidavit of Dr. Nassetta.”
Nevertheless, we have reviewed the qualifications of Dr. Nassetta as contained in his
curriculum vitae, affidavit and deposition. Dr. Nassetta is a medical doctor licensed to practice
medicine in five states who also holds a master’s degree in public health. He is board-certified in
internal medicine and board-eligible in occupational and environmental medicine. He testified that
he is actively involved, on a daily basis, in doing occupational medicine through his work for an
occupational toxicology consulting company and an occupational medical staffing and consultation
company.
Dr. Nassetta’s affidavit further states as follows:
I have reviewed material safety data sheets, scientific literature, and
other toxicological references with regard to the chemicals Mr.
Wilson was exposed to during his employment with CSXT, a detailed
description of the various employment tasks Mr. Wilson performed
while working for CSXT in Birmingham, Alabama, as well as the
medical history of Mr. Wilson. I have personally visited the CSXT
facility in Birmingham, Alabama where Mr. Wilson worked. I have
also reviewed numerous epidemiologic, toxicologic, and other
scientific and medical studies involving the various chemicals to
which Mr. Wilson was exposed.
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Based on our review of the record, we find that Dr. Nassetta meets the requirements of
Tenn.R.Evid. 702 and is qualified to render an expert opinion in this case. CSXT’s arguments to the
contrary, including the fact that Dr. Nassetta has never published a paper about brain cancer, pertain
to the weight afforded to his testimony by the trier of fact, and not its admissibility.
According to the Supreme Court’s teaching in McDaniel, “the trial court must analyze the
science and not merely the qualifications, demeanor or conclusions of experts.” The McDaniel Court
stated that the Trial Court “must assure itself that the opinions are based on relevant scientific
methods, processes, and data, and not upon an expert's mere speculation.” 955 S.W.2d at 265.
Accordingly, we examine Dr. Nassetta’s testimony to determine if it is based on valid and relevant
science, and not merely a speculative conclusion.
Dr. Nassetta’s affidavit states the following in relevant part:
Ricky Wilson, a black male, was diagnosed with brain cancer at the
age of 40. Brain cancer is more common in white males
(glioblastoma specifically) and peaks at an older age. Therefore, in
the case of Mr. Wilson, it leads one to consider possible occupational,
environmental or genetic predispositions as more likely in the
causative analysis.
Brain gliomas (these include astrocytomas), in particular appear to be
more related to occupational risk factors than other types of brain
cancer.
* * *
Although the etiology of brain tumors in adults remains largely
unknown, a large number of studies have examined the relationship
between the environment and occurrence of brain tumors. Despite
this, only two unequivocal risk factors have been identified: ionizing
radiation and immuno-suppression. Other studies have identified
possible environmental risk factors related to brain tumors. These
include exposure to such things as: organic solvents, lubricating oils,
polyaromatic hydrocarbons, motor exhaust, welding fumes,
insecticides, vinyl chloride monomer, formaldehyde, rubber industry,
work in electrical occupations, magnetic fields, fungicides and
herbicides. Established risk factors for brain cancer, such as genetic
predisposition and ionizing radiation can explain only a small
proportion of the disease. Conventional lifestyle factors, such as
tobacco smoking, alcohol drinking, and dietary intakes, have not been
or are only modestly associated with brain cancer risk.
The occupational exposures pursuant to the available historic
information were substantial, chronic and without provision for
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personal protection, resulting in an optimal environment for the
development of tumors, including brain tumors.
It does not appear from the occupational history available that Mr.
Wilson was exposed to ionizing radiation or was immuno-suppressed
in some way prior to the development of his brain cancer; however,
there is ample evidence of his exposure to organic solvents,
polyaromatic hydrocarbons, motor exhaust and welding fumes.
Therefore, it is my opinion within a reasonable degree of medical
certainty that these factors and Mr. Wilson’s occupational exposures
caused, or contributed to the cause, of Mr. Wilson’s development of
brain cancer and leukemia.
Dr. Nassetta admitted in his deposition that he did not have any quantitative information
about the amount of exposure or dosage2 Mr. Wilson had to the various chemicals at issue in this
case. He testified as follows regarding his qualitative exposure assessment:
Q: Do you have any information at all about what dosage Mr. Wilson
had of any chemicals involved in this lawsuit?
A: No. This is very typical of almost every case in occupational
medicine. There is almost never opportunity to have a quantitative
dose.
Q: Without knowing dosage can you testify to a reasonable degree of
medical or scientific certainty that any of these chemicals caused or
contributed to brain cancer?
A: I believe so from a qualitative exposure assessment.
Q: Is that qualitative exposure assessment as a basis for your opinion
something that is reasonably accepted in the scientific community?
A: Yes. In fact, if you read most of the epidemiological literature,
you’ll find that’s how most of the studies are done.
* * *
2
Dr. Nassetta explained the difference between the concepts of “exposure” and “dose” as follows: “exposure
is the potential for coming into contact with a chemical. Dose implies that [the] chemical has actually gone across the
interface of the human bod y.”
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Q: Do you know of any literature that links any of the chemicals to
which Mr. Wilson was exposed to brain cancer?
A: It links them, yes. I think I mentioned those in my opinions.
There are numerous epidemiological studies cited in Dr. Nassetta’s opinion, but the one upon
which he and Plaintiff primarily rely upon is cited and discussed in a textbook entitled Occupational
Neurology and Clinical Neurotoxicology (Williams and Wilkins 1994), in a chapter called Primary
Brain Tumors Associated With Chemical Exposure, which reviews epidemiological studies
concerning the association between occupational chemical exposure and brain tumors.
Dr. Nassetta cites and relies upon a study referred to as the Howe study, which found as
follows:
An examination of cancer mortality between 1965 and 1977 among
44,000 pensioned Canadian railroad workers exposed to PAHs
[polycyclic aromatic hydrocarbons] in diesel fumes indicated a
significantly elevated brain cancer mortality risk among those who
had worked as welders (SMR = 3.18).
The Howe study further found an SMR (standardized mortality ratio) of 2.78 for brain cancer among
those employees with the job classification “carman.” It is not disputed that the SMR, or risk factor
relative to the general population, reported in this study (2.78) is statistically significant. Mr.
Wilson worked as a carman for CSXT, and his employment involved a large amount of welding.
Dr. Nassetta testified in his deposition that “the body of literature considered as a whole conclude[s]
that there’s a strong association, a strong relative risk, associated with these particular groups of
chemicals and the exposures and the outcome that we’re looking at in cancer.”
While the experts presented by CSXT naturally offer opinions in opposition to that presented
by Dr. Nassetta, CSXT does not in its brief challenge or dispute the scientific validity of the Howe
study or the other literature relied upon by Dr. Nassetta. As the McDaniel Court noted, “it is
important to emphasize that the weight given to stated scientific theories, and the resolution of
legitimate but competing scientific views, are matters appropriately entrusted to the trier of fact.”
955 S.W.2d at 265.
We have reviewed the testimony of Dr. Nassetta in light of the factors enunciated in
McDaniel for determining reliability and admissibility under Tennessee Rules of Evidence 702 and
703, and find it admissible under these authorities.
For the foregoing reasons the judgment of the Trial Court allowing the expert testimony of
Drs. Girard and Garry is affirmed, the judgment holding Dr. Nassetta’s testimony inadmissible is
reversed, and the cause is remanded for trial. Costs of appeal are adjudged against CSX
Transportation, Inc.
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_________________________________________
HOUSTON M. GODDARD, PRESIDING JUDGE
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