Internal Medicine Expert Witness Testimony Excluded in Asbestos Litigation

Internal Medicine Expert Witness not allowed to provide testimony as the court opined that he reached his opinion solely using a literature review.

Facts:  This case  (Collins v. BNSF Railway Company – United States District Court – Southern District of Texas – March 5th, 2019) involves a negligence claim under the Federal Employers Liability Act (“FELA”).  The plaintiff alleges that during the course of his employment as a brakeman, conductor, and engineer, he was exposed to toxic substances and carcinogens.  The plaintiff argues that the defendant was negligent in exposing him to these substances and that he developed colon and then liver cancer as a result.  The defendant denies that it is negligent.  The plaintiff has hired Dr. Evan Roy Berger (Internal Medicine Expert Witness) to provide testimony on his behalf.  The defendant has filed a motion to exclude this expert from testifying.

Discussion:  Dr. Berger is the plaintiff’s causation expert and is a medical doctor board certified in internal medicine, hematology, and medical oncology.  Dr. Berger opines that the plaintiff’s exposure to diesel fumes exhaust and asbestos was a contributing factor in the development of his colon cancer.  The defendant claims that Dr. Berger’s testimony should be excluded because he did not identify or rely on studies that establish a casual connection between exposure to the relevant chemicals and colon cancer, his methodology is not generally accepted by the scientific community, his theories have not been subjected to peer review, and his opinions are not based on sufficient facts or data.

The court opines that Dr. Berger seems to have reached his general causation opinion primarily based on a literature review.  At his deposition, Dr. Berger confirmed that he primarily looks at the literature to determine whether a substance can cause a particular medical condition.  However, Dr. Berger also states that none of the articles that he reviewed definitively states that exposure to diesel exhaust and/or asbestos causes colon cancer.  In addition, the court notes that Dr. Berger used his own methodology to derive a causation conclusion from the studies that only point to an association, not a causation.

The court further opines that Dr. Berger has not shown that the type of methodology he used is accepted in the scientific community.  In addition, it does not appear that Dr. Berger’s ultimate conclusion on general causation has been subjected to peer review.  Also, the court states that although differential diagnosis generally an accepted approach, Dr. Berger did no explain what his own methodology consisted of in his deposition.

Conclusion:  The motion to exclude the expert witness testimony of Dr. Evan Roy Berger is granted.