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Claar v. Burlington Northern Railroad Co.

filed: July 14, 1994.

H. JEROME CLAAR; BEN MAR; MAYNARD YOUNG; DONALD DOLL, PLAINTIFFS-APPELLANTS,
v.
BURLINGTON NORTHERN RAILROAD COMPANY, DEFENDANT-APPELLEE. DICK EGGAR; RAY ELLISON, PLAINTIFFS-APPELLANTS, V. BURLINGTON NORTHERN RAILROAD COMPANY, DEFENDANT-APPELLEE.



Appeals from the United States District Court for the District of Montana. D.C. No. CV-89-179-JFB, D.C. No. CV-89-170-JFB. James F. Battin, Chief Judge, Presiding.

Before: Alfred T. Goodwin, William C. Canby, Jr., and Alex Kozinski, Circuit Judges. Opinion by Judge Canby.

Author: Canby

CANBY, Circuit Judge:

Plaintiffs Claar, Mar, Young, Doll, Eggar, and Ellison appeal the district court's grant of summary judgment for the defense in their action against their former employer, Burlington Northern Railroad, brought under the Federal Employees Liability Act (FELA), 28 U.S.C. § 51 et seq. The district court held inadmissible the expert testimony that plaintiffs offered in support of their claims, and granted summary judgment because, without that testimony, plaintiffs failed to show any causal connection between their workplace chemical exposure and their injuries. We affirm.

I

Plaintiffs are members of a group of twenty-seven people who brought suit against Burlington Northern, alleging that they suffer from a variety of ailments stemming from their exposure to a variety of chemicals while working at Burlington Northern's Livingston, Montana, shop. Out of concern that plaintiffs might not be able to demonstrate a causal connection between their workplace chemical exposure and their injuries, the district court issued a case management order consolidating the twenty-seven cases for pretrial purposes. The order required plaintiffs to submit affidavits describing their exposure to the chemicals they claim harmed them, and affidavits from physicians listing each plaintiff's specific injuries, the particular chemical(s) that in the physician's opinion caused each injury, and the scientific basis for the physician's Conclusions. The court selected the cases of the present six plaintiffs for adjudication as test cases, and stayed the remaining cases.

Dr. Mark Hines prepared an affidavit concerning Eggar, and Dr. Richard Nelson prepared affidavits concerning the remaining five plaintiffs. The district court found these affidavits deficient because they failed to explain which chemical(s) caused which injuries, and failed to explain the scientific basis for the physicians' Conclusions that plaintiffs' injuries were caused by workplace chemical exposure. Consequently, it ordered a second round of affidavits, again insisting that the physicians explain the basis for their opinions.

Approximately one month after receipt of the new affidavits, Burlington Northern moved for summary judgment on the ground that the affidavits were inadmissible. The district court agreed, finding that the affidavits still failed to explain Drs. Hines's and Nelson's reasoning and methods, and concluding that they lacked "the foundation and reliability necessary to support expert testimony." The court held that, without the affidavits, plaintiffs could not demonstrate a causal relationship between chemical exposure and their injuries, and granted summary judgment for Burlington Northern. This appeal followed.

II

Plaintiffs first argue that the district court improperly relied on Fed. R. Evid. 703 for authority to scrutinize the reasoning and methodology underlying their affidavits. We review de novo the district court's interpretation of the Federal Rules of Evidence, United States v. Williams, 989 F.2d 1061, 1070 (9th Cir. 1993), and will uphold its decision to exclude expert testimony unless it is "manifestly erroneous," Rogers v. Raymark Indus., Inc., 922 F.2d 1426, 1429 (9th Cir. 1991).

Rule 703 provides, in relevant part:

The facts or data. . . upon which an expert bases an opinion or inference may be those 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.

(Emphasis added.) To the extent that the district court relied on Rule 703, we agree that it was in error. The plain language of the rule permits no other Conclusion. See Christophersen v. Allied-Signal Corp., 939 F.2d 1106, 1118 (5th Cir. 1991) (Clark, C.J., Concurring), cert. denied, 117 L. Ed. 2d 506, 112 S. Ct. 1280 (1992). Rule 703 merely relaxes, for experts, the requirement that witnesses have personal knowledge of the matter to which they testify. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 125 L. Ed. 2d 469, 113 S. Ct. 2786, 2796 (1993); Fed. R. Evid. 602 ("A witness may not testify to a matter unless . . . the witness has personal knowledge of the matter. . . . This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses."). It does not deal with the authority of the court to scrutinize an expert's methodology or reasoning.

In evaluating the reliability of the affidavits offered by plaintiffs' experts in this case, however, the district court relied not only on Rule 703, but also on Rule 702. And Rule 702 does provide authority for evaluating the reasoning and methodology ...


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