Metropolitan News-Enterprise


Friday, January 5, 2024


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Court of Appeal:

Expert Testimony Wrongfully Barred at Wrongful Death Trial

Opinions on Causation Need Not Be Founded on Published Studies, Justices Declare


By a MetNews Staff Writer


Div. One of the Fourth District Court of Appeal yesterday ordered reinstatement of a wrongful death action against the operator of freight railroad networks, holding that expert testimony was erroneously barred in an action based on the theory that exposure to toxic levels of diesel exhaust over a period of more than 40 years caused the decedent to contract non-Hodgkin’s lymphoma.

The opinion by Justice Martin N. Buchanan reverses a judgment in favor of the BNSF Railway Company which ensued after motions in limine were granted barring testimony by Andrew Salmon, Joseph Landolph and Robert Gale and the plaintiff, Gary Garner, was unable to proceed. Explaining that the rulings were tantamount to declaring a nonsuit, Buchanan said independent review was warranted and that such a review reveals faultiness of the conclusion below that there was too big of an analytical gap between the data that was relied upon and the experts’ opinion.

“Under California law, the trial court has the duty to act as a ‘gatekeeper’ in determining whether to exclude expert testimony from trial,” Buchanan recited.

He cautioned that case law “should not be construed so broadly that the gatekeeper effectively supplants both the expert’s reasonable scientific judgment and the jury’s role.”

Toxicologist’s Opinion

The jurist primarily focused on Salmon’s opinion, who has a PhD in biochemistry from the University of Oxford and is former chief and senior toxicologist of the Air Toxicology and Risk Assessment Section for the State of California Environmental Protection Agency, with more than 50 years of experience in the carcinogenic effect exposure to toxins.

“The trial court strayed beyond its gatekeeping role by weighing the probative value of Dr. Salmon’s opinion, and the studies on which he relied, rather than merely excluding a clearly invalid and unreliable expert opinion,” Buchanan wrote.

He declared:

“The trial court seems to have agreed with BNSF’s argument below that Gary’s experts, including Dr. Salmon, were not permitted to opine at trial that diesel exhaust and its constituents, more likely than not, are a cause of non-Hodgkin’s lymphoma, because there are no epidemiological or other scientific studies that have already stated that conclusion.

“This ruling reflects a misunderstanding of the law.  As Gary argues, there is no requirement that a causation expert rely on a specific study or other scientific publication expressing precisely the same conclusion at which the expert has arrived.”

No Published Materials

There might not be published materials on a topic, he said, noting:

“As Dr. Salmon explained, this is such a case because few studies of the potential link between diesel exhaust and non-Hodgkin’s lymphoma have been conducted.”

Buchanan went on to say:

“Dr. Salmon gave a reasonable scientific explanation for his causation opinions, including his reliance on the overall cancer risk, and he cited objective, verifiable evidence supporting his opinions.  BNSF submitted no evidence that his reasoning or methodology was scientifically invalid.  The trial court also found no fault with his methodology.  The mere fact that a cause-effect relationship between exposure to diesel exhaust and non-Hodgkin’s lymphoma ‘in particular’ has not been conclusively established in the scientific literature does not render Dr. Salmon’s opinions inadmissible.” 

Testimony of the other experts was barred improperly for like reasons, he said.

“We further conclude that Gary’s experts, including Dr. Landolph, were not required to identify the exact dose of diesel exhaust at which point the exposure becomes toxic,” Buchanan wrote.

The case is Garner v. BNSF Railway, 2024 S.O.S. 100.

Santa Clarita attorney Delores A. Yarnall represented Garber. Anthony E. Sonnett and V. Alan Arshansky of the downtown Los Angeles firm of Lewis Brisbois Bisgaard & Smith joined with San Francisco lawyer Joseph P. Mascovich and Irvine practitioner Selim Mounedji of the Sims Law Firm in acting for BNSF.


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