On 10/26/2017 GORDON BLANKENSHIP filed a Personal Injury - Other Personal Injury lawsuit against UNION PACIFIC RAILROAD. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are HOLLY J. FUJIE and LAURA A. SEIGLE. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
HOLLY J. FUJIE
LAURA A. SEIGLE
DOES 1 TO 100
UNION PACIFIC RAILROAD
RATNER DALE B. ESQ
GIBBONS ROBERT J.
SPANGLER KHARE VIIU
3/16/2018: STIPULATION FOR ORDER DIRECTING DISCLOSURE OF PROTECTED HEALTH INFORMATION
3/16/2018: ORDER DIRECTING DISCLOSURE OF PROTECTED HEALTH INFORMATION
1/29/2019: Substitution of Attorney
3/15/2019: Minute Order
3/15/2019: Ex Parte Application
1/9/2018: Minute Order
1/9/2018: ORDER RE: APPLICATIONS OF ANNE MARIE O'BRIEN AND MARIA T. LIGHTHALL TO APPEAR AS COUNSEL PRO HAC VICE
12/6/2017: DEFENDANT UNION PACIFIC RAILROAD COMPANY'S NOTICE OF MOTION AND MOTION ON APPLICATION FOR ADMISSION PRO HAC VICE OF ANNE MARIE O'BRIEN
12/6/2017: DEFENDANT UNION PACIFIC RAILROAD COMPANY'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR ADMISSION PRO HAC VICE OF ANNE MARIE O'BRIEN
12/6/2017: DECLARATION OF ROBERT J. GIBBONS IN SUPPORT OF APPLICATION FOR ADMISSION PRO HAC VICE OF ANNE MARIE O'BRIEN
12/6/2017: PROOF OF SERVICE OF DEFENDANT UNION PACIFIC RAILROAD COMPANY'S NOTICE OF MOTION AND MOTION ON APPLICATION FOR ADMISSION PRO HAC VICE OF ANNE MARIE O'BRIEN WITH SUPPORTING PAPERS
12/6/2017: DECLARATION OF MARIA T. LIGHTHALL IN SUPPORT OF APPLICATION FOR ADMISSION PRO HAC VICE
12/6/2017: DECLARATION OF ROBERT J. GIBBONS IN SUPPORT OF APPLICATION FOR ADMISSION PRO HAC VICE OF MARIA T. LIGHTHALL
12/6/2017: DECLARATION OF ANNE MARIE O'BRIEN IN SUPPORT OF APPLICATION FOR ADMISSION PRO HAC VICE
11/28/2017: DEFENDANT UNION PACIFIC RAILROAD COMPANY'S ANSWER TO COMPLAINT
10/31/2017: PROOF OF SERVICE SUMMONS
at 08:30 AM in Department 4B, Laura A. Seigle, Presiding; Jury Trial - Not Held - Continued - Party's MotionRead MoreRead Less
at 10:00 AM in Department 4B, Laura A. Seigle, Presiding; Final Status Conference - Not Held - Continued - Party's MotionRead MoreRead Less
at 08:30 AM in Department 4B, Laura A. Seigle, Presiding; Hearing on Ex Parte Application (TO CONTINUE THE TRIAL DATE) - Held - Motion GrantedRead MoreRead Less
Minute Order ( (Hearing on Ex Parte Application TO CONTINUE THE TRIAL DATE)); Filed by ClerkRead MoreRead Less
Defendant Union Pacific Railroad Company's Ex Parte Application to Continue the Trial Date; Filed by UNION PACIFIC RAILROAD (Defendant)Read MoreRead Less
Notice of Deposit - Jury; Filed by GORDON BLANKENSHIP (Plaintiff)Read MoreRead Less
Substitution of Attorney; Filed by UNION PACIFIC RAILROAD (Defendant)Read MoreRead Less
Notice (of unavailability); Filed by GORDON BLANKENSHIP (Plaintiff)Read MoreRead Less
ORDER DIRECTING DISCLOSURE OF PROTECTED HEALTH INFORMATIONRead MoreRead Less
STIPULATION FOR ORDER DIRECTING DISCLOSURE OF PROTECTED HEALTH INFORMATIONRead MoreRead Less
Memorandum - Other; Filed by UNION PACIFIC RAILROAD (Defendant)Read MoreRead Less
Declaration; Filed by UNION PACIFIC RAILROAD (Defendant)Read MoreRead Less
Motion; Filed by UNION PACIFIC RAILROAD (Defendant)Read MoreRead Less
Answer; Filed by UNION PACIFIC RAILROAD (Defendant)Read MoreRead Less
DEFENDANT UNION PACIFIC RAILROAD COMPANY'S ANSWER TO COMPLAINTRead MoreRead Less
Proof-Service/Summons; Filed by Plaintiff/PetitionerRead MoreRead Less
PROOF OF SERVICE SUMMONSRead MoreRead Less
Complaint; Filed by GORDON BLANKENSHIP (Plaintiff)Read MoreRead Less
SUMMONSRead MoreRead Less
COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIALRead MoreRead Less
Case Number: BC681354 Hearing Date: July 28, 2020 Dept: 24
Defendant Union Pacific Railroad’s motion for summary judgment is DENIED.
On October 26, 2017, Plaintiff Gordon Blankenship (“Plaintiff” or “Blankenship”) filed a complaint against Defendant Union Pacific Railroad, (“Defendants” or “UPR”). The Complaint arises out of allegations that Plaintiff developed bladder cancer from working with toxic chemicals, including diesel exhaust, benzene, creosote, and rock/mineral dust, during his employment with Defendant. The Complaint alleges a single cause of action for a violation of the Federal Employers’ Liability Act (45 USC 51 et seq.). On November 28, 2017, Defendant answered.
On April 20, 2020, Defendant moved for summary judgment. On June 19, 2020, Plaintiff filed an opposition. On July 1, 2020, Defendant submitted a reply.
Summary Judgment Standard
A party may move for summary adjudication as to one or more causes of action, affirmative defenses, claims for damages, or issues of duty if that party contends that there is no merit to the cause of action, defense, or claim for damages, or if the party contends that there is no duty owed. (See CCP §437c(f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Ibid.) A cause of action has no merit if: (1) one or more elements of the cause of action cannot be separately established, even if that element is separately pleaded, or (2) a defendant establishes an affirmative defense to that cause of action. (See CCP §437c(n); Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 583.) Once the defendant has shown that a cause of action has no merit, the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action. (See CCP §437c(o)(2); Union Bank, supra, 31 Cal.App.4th at 583.)
In order to obtain summary judgment, “all that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action.” (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853; see also Mitchell v. United National Ins. Co. (2005) 127 Cal.App.4th 457.) “Although he remains free to do so, the defendant need not himself conclusively negate any such element.” (Ibid.) “Once the defendant has made such a showing, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or as to a defense to the cause of action. If the plaintiff does not make such a showing, summary judgment in favor of the defendant is appropriate.” (See Mitchell, supra, 127 Cal.App.4th at 467.)
Until the defendant meets this evidentiary burden, the plaintiff has no burden to present evidence showing a triable issue of fact. (See Hagen v. Hickenbottom (1995) 41 Cal.App.4th 168, 178; see also Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 940, citing Duckett v. Pistoresi Ambulance Service, Inc. (1993) 19 Cal.App.4th 1525, 1533 [“[w]here the evidence presented by defendant does not support judgment in his favor, the motion must be denied without looking at the opposing evidence, if any, submitted by plaintiff”].)
Plaintiff objects to the Nony declaration on multiple grounds regarding his qualification. Plaintiff firmly contends that such opinion is not fit because Defendant’s expert neither has scientific knowledge in medicine, nor specifically in oncology. (Nony Decl., ¶¶ 1-8.) Plaintiff’s objections to the Nony declaration nos. 1-17 are OVERRULED. The Court finds him sufficiently qualified to submit expert opinion testimony on the relevant subjects at hand.
Plaintiff objects to Defendant’s separate statement for failure to state some specific facts in accordance with CRC Rule 3.1350(d). Plaintiff’s objections to the Separate Statement nos. 1-18 are OVERRULED.
Plaintiff objects to exhibit K, the Diesel Exhaust - For Your Information slide, as hearsay. Plaintiff’s objection no. 19 is OVERRULED. This is not hearsay because it is not offered for the truth of the matter asserted. Rather, it is offered for Plaintiff’s knowledge of the information.
Defendant objects to Plaintiff’s expert opinions in the Salmon, Landolph, and Gale declarations. These objections are OVERRULED. Reviewing each declaration, the Court finds that the respective experts are sufficiently qualified to give expert testimony regarding general and specific causation as to the bladder cancer. (Evid. Code § 801; see Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 772 [as a gatekeeper, the court conducts a “circumscribed inquiry” to “determine whether, as a matter of logic, the studies and other information cited by experts adequately support the conclusion that the expert's general theory or technique is valid.”].) Their opinions and ultimate conclusions regarding a link between diesel exhaust exposure and an increased likelihood of bladder cancer are sufficiently supported by reliable methodology and studies.
Defendant generally objects to the Blankenship declaration as speculative, self-serving, and contradictory. This objection is OVERRULED.
Request for Judicial Notice
Plaintiff’s request for judicial notice of the Complaint is GRANTED. (Evid. Code §452.)
Statute of Limitations
Defendant first attacks the complaint on statue of limitations grounds.
FELA's statute of limitations precludes actions for injuries brought more than three years from the date that the cause of action accrued. (45 U.S.C. § 56.) Compliance with the limitations period under section 56 is a condition precedent to an injured employee's recovery in an FELA action. (Monarch v. Southern Pacific Transp. Co. (1999) 70 Cal.App.4th 1197, 1203, citing Emmons v. Southern Pacific Transp. Co. (5th Cir. 1983) 701 F.2d 1112, 1117.) The burden rests on the plaintiff to allege and prove that the action was commenced within the three-year statutory period. (Emmons, supra, 701 F.2d at 1118.) In cases of latent or progressive injuries, such as the case here, an action accrues once a plaintiff is "in possession of the critical facts that he has been hurt and who has inflicted the injury." (United States v. Kubrick (1979) 444 U.S. 111, 122-233 ; Monarch, supra, 70 Cal.App.4th at 1203; Fries v. Chicago & Northwestern Transportation Co. (7th Cir. 1990) 909 F.2d 1092.) This accrual requires an objective inquiry into when the plaintiff “knew or, in the exercise of reasonable diligence, should have known the essential facts of his condition and the potential causes.” (Monarch, supra, 70 Cal.App.4th at 1203.) “A plaintiff need not be sure which cause is predominant, as long as [he] knows or has reason to know of a potential cause.” (Tolston v. National R.R. Passenger Corp. (7th Cir. 1996) 102 F.3d 863, 865.) A date certain as to the injury is not required; the plaintiff need only know or have reason to know the likely cause of the injury. (Fries, supra, 909 F.2d at 1095.)
Questions regarding the accrual date of a FELA claim are issues of fact. (See Anderson v. Southern Pacific Co. (1964) 231 Cal.App.2d 233, 247 [holding claim not time-barred where “[s]killed diagnosis [of emphysema] appears to be the only sure means to knowledge—and even then the layman may not even suspect that his injury is job-connected”]; see also CSX Transp. v. Adkins (1994) 264 Ga. 203, 204 [holding that whether Plaintiffs possessed critical facts as to chemically caused latent injury was a jury question]; Curry v. Conrail (W.D.Pa. 1991) 766 F.Supp. 380, 384 [summary judgment denied where Plaintiff filed claim five years from date of diagnosis and only after learning through news media that asbestos may have caused husband’s lung cancer].)
Defendant presents evidence that Plaintiff was put on notice Blankenship was aware that diesel fumes could cause cancer in at least 2010 or 2011. Specifically, Plaintiff worked as a technical training instructor for UPR from 1985 to 2013. (SSMF 13.) His job duties included instructing on safety, air brakes, train handling, hazardous material, operating rules, track warrants, and using the on-board ATCS advanced training control system. (SSMF 15-16.) He also conducted training classes with a group of attorneys, paralegals, and medical professionals in the 2000s. (SSMF 17.) Importantly, UPR provided information to him in approximately 2010/2011, which included information on whether diesel exhaust causes lung cancer. (SSMF 18.) Plaintiff testified that he first saw the document in 2010/2011. (SSMF 19.) The document provides some information on diesel exhaust as a carcinogen, stating “how diesel exhaust may produce potential health effects is not well understood,” and cautioning that workers in various jobs who are exposed to diesel exhaust may develop “some types of human cancers.” (SSMF 21.)
Defendant also provides information that Plaintiff was aware of his injuries in 2013. Specifically, that he first started to feel symptoms in late 2013, but delayed in seeking treatment until December 2014. (SSMF 23.) These symptoms included blood in his urine and more frequent urination. (SSMF 24.) He never asked his treating physicians whether his diagnosis could have caused by working on the railroad. (SSMF 25.) Plaintiff testified that he associated his diagnosis with his work with the railroad only after seeing an advertisement on the Internet near the time he filed his claim in October 2017. (SSMF 26.)
The Court is not entirely convinced that Defendant meets its initial burden on this issue. To establish knowledge of the connection between Plaintiff’s work at UPR and the bladder cancer, Defendant principally relies on information it provided to Plaintiff on diesel exhaust as a carcinogen. (SSMF 18.) Plaintiff admitted to seeing such information in 2010/2011. (Levonyan Decl., 11, Ex. J [“Blankenship Depo.”] at 11:15-20; Ex. K [the Diesel Exhaust - For Your Information "Q221"].) However, scrutinizing the document and construing the evidence in favor of Plaintiff, the Court cannot positively state the information would have put Plaintiff on notice of a connection between bladder cancer and diesel exhaust. The document does not explain the health effects of diesel exhaust as Defendant argues. Rather, it equivocates on such a connection, stating “[t]here is continuing research and debate regarding the health effects of diesel exhaust. Just how diesel exhaust may produce potential health effects is not well understood.” (Ibid.) As to cancer specifically, the document states, “[no] national or international health science organization has determined that the evidence is sufficient to conclude that diesel exhaust is a known cause of human cancer. Research on the potential human health effects, including cancer risk, continues today; and the company follows closely what is being reported on this issue.” (Ibid.) It also does not specifically provide for any connection between a particular type of cancer and diesel exhaust. Thus, even if Plaintiff were aware of the document, the Court cannot conclude that Plaintiff had constructive or actual knowledge of the connection between his work and his cancer in 2013/2014.
To the extent that he could have discovered such a connection, the evidence does not conclusively establish that Plaintiff should have discovered the connection in the exercise of reasonable diligence outside of the three year period. Notably, Plaintiff filed suit in October 2017. The three year period extends to October 2014, prior to his diagnosis. While Plaintiff admits that he delayed in seeking treatment for about a year, this timeline does not show that Plaintiff should have suspected a connection or had actual knowledge of a connection with his work and his symptoms/cancer. At best, it is a question of fact for the jury to determine whether or not he constructively knew of the connection prior to his diagnosis.
Examining case law also supports this conclusion. Defendant favorable cites to Fries for the proposition that Plaintiff’s delay in diagnosis after experiencing symptoms does not help him regarding accrual. However, Fires is distinguishable from the instant case. First, Fries agrees that “a cause of action accrues for statute of limitations purposes when a reasonable person knows or in the exercise of reasonable diligence should have known of both the injury and its governing cause.” (Id. at 1095.) Secondly, Fries dealt with specific injuries that a lay person could reasonably be on notice as related to their occupation. The plaintiff in Fries worked in a loud-noise environment and developed hearing decline and tinnitus as early as 1981, and did not seek treatment and was not diagnosed until 1985. (Id. at 1093-1094.) The Fries Court assessed that the plaintiff had constructive knowledge that his harm was work-related based on specific facts showing a clear nexus between the plaintiff’s work conditions and the harm he suffered. The Fries court noted the following evidence in affirming summary judgment on the statute of limitations issue: “Fries admitted that in 1981 and 1982 the frequency of the ringing would increase toward the end of the work day, worsen throughout the work week, and would only subside after two days of quiet on the weekend. In order to recuperate, he needed silence for two hours after returning home from work because he ‘just felt terrible.’ ” (Id. at 1094.) Based on that clear evidence, the Fries plaintiff obviously should have made the connection between his work and his hearing issues. Here, unlike Fries, there is not a readily apparent nexus between the work conditions and the symptoms Plaintiff first experienced in 2013 (blood in the urine and frequent urination). Even if he did delay in investigating his symptoms, it is not clear that he should have discovered the connection even if he sought medical treatment. Moreover, his delay was until December 2014, which is still within the three year period. Thus, the Court cannot conclude as a matter of law that Plaintiff’s claim accrued in 2013 when his initial symptoms manifested. This is certainly a jury question.
Tolston, another favorably-cited case by Defendant, is similarly distinguishable. (See Tolston, supra, 102 F.3d at 865.) In Tolston, the plaintiff delayed over three years filing her complaint, arguing that there was a degenerative or “wear and tear” component to her injuries that should delay the accrual of the statute of limitations. (Id. at 865-866.) However, Tolston's injuries specifically involved tripping and falling while on the job at the train yard. (Id. at 865.) Thus, the complained-of knee injury could be readily attributed as an occupational injury. A court could infer that a reasonable person in that scenario would have constructive knowledge of the connection between their injuries and their work. Here, however, there is no such apparent nexus.
In any event, Plaintiff submits that there is a dispute of material fact as to when the claim accrued. Examining Plaintiff’s evidence in opposition, the Court agrees. Plaintiff contends that the statute of limitations began to run in 2017 when Plaintiff was placed on inquiry notice by way of an internet advertisement. (SSMF 26, AMF 10.) None of his medical providers told him what caused his cancer or indicated to him that his work with UP caused his cancer. (AMF 12-14.) During his employment, the routine safety briefing meetings never addressed any of the exposures that are part of his claim. (AMF 15.) Plaintiff has no recollection of seeing any fliers, posters, training materials, or other documents from Union Pacific warning him that exposure to anything at work could cause bladder cancer. (AMF 19.) Other than seeing the advertisement on the internet, Plaintiff does not remember associating his work with Union Pacific and his cancer. (AMF 11.) Plaintiff also observes that a number of other issues could cause blood in the urine, including a urinary tract infection, an enlarged prostate, a kidney or bladder stone, pelvis floor hyper-sensitivity, strictures, exercise, cancer, kidney disease, kidney injury, some inherited kidney disorders, bleeding disorders, blood vessel abnormalities, some drugs and sexual activity. (AMF 23; Gale Decl., ¶ 68.) Plaintiff thus argues that there is no reason a lay person would associate blood in their urine to an occupational exposure.
The Court thus finds that even if Defendant met its initial burden, there is a dispute of material fact over when the cause of action accrued. Therefore, Defendant’s motion is DENIED on these grounds.
Defendant also moves for summary judgment on the causation element of the claim.
Railroad employees, like Plaintiff, do not qualify for workers’ compensation insurance, but must remedy work place injuries by suing their employer for negligence under the FELA. (Rogers v. Missouri Pacific R.R. Co. (1957) 352 U.S. 500, 509.) FELA makes a railroad liable for injury or death resulting “in whole or in part” from the negligence of the railroad or its employees. (45 U.S.C.S. § 51; Coffey v. Northeast Ill. Reg’l Commuter R.R. Corp. (2007, 7th Cir.) 479 F.3d 472, 474, 476.) The Act has been interpreted to mandate that the railroad is liable if the proofs justify – with reason – the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. (Coffey, supra, 479 F.3d at 476.) Under the Act, the fact that there may have been a number of causes of the injury is irrelevant as long as one cause may be attributable to the railroad’s negligence. (Ibid.) Indeed, the standard of proof for causation under FELA is significantly lower than in a more traditional tort case. (Gallick v. B & B O.R.R. (1963) 372 U.S. 108.)
In toxic injury cases, causation requires proof that the chemicals at issue can cause the injury in general (general causation), but also that the chemicals caused plaintiff’s injury in particular. (Johnson & Johnson Talcum Powder Cases (2019) 37 Cal.App.5th 292, 297; see also In re Hanford Nuclear Reservation Litigation (9th Cir. 2002) 292 F.3d 1124, 1133 [stating the general causation inquiry is “whether exposure to a substance . . . is capable of causing a particular injury or condition in the general population.” And specific causation “refers to whether a particular individual suffers from a particular ailment as a result of exposure to a substance.”].) Without general causation, there can be no specific causation. (Norris v. Baxter Healthcare Corp. (10th Cir. 2005) 397 F.3d 878, 881.)
Defendant first attacks general causation. General causation is a threshold causation question, designed to determine whether the scientific evidence supports an inference that the alleged exposure is capable of causing the type of injury at issue. (See In re Hanford Nuclear Reservation Litig. (9th Cir. 2002) 292 F.3d 1124, 1133-35.) For example, the scientific literature may not support a finding that a toxic dose of the active ingredient or compound is below the toxic threshold, and therefore, not capable of causing the alleged disease. (See, e.g. Benkwith v. Matrixx Initiatives, Inc. (M.D. Ala. 2006) 467 F.Supp.2d 1316, 1330.) In such cases, there is no foundation for an expert conclusion or a jury finding that the exposure did in fact cause the medical condition developed by a plaintiff. (Id. at 1331.)
Defendant asserts that it sets forth affirmative evidence that establishes that the medical and scientific literature does not support a nexus between Plaintiff's bladder cancer and occupational exposure to the substances alleged in the Complaint, particularly diesel exhaust. Specifically, Dr. Nony reviewed all of Plaintiff's exposure claims in this case to determine whether the substances/materials to which Plaintiff claims occupational exposure could have caused his alleged disease. Dr. Nony reviewed the scientific and medical literature on each of these materials/substances and concluded that none of Mr. Blankenship's claimed exposures are associated with the development of bladder cancer. (SSUMF 28, 29, 30, and 31.) This is a sufficient showing that shifts the burden on the threshold question of general causation.
Plaintiff properly rebuts Dr. Nony’s opinion with qualified experts that establish general causation between occupational diesel exhaust exposure and bladder cancer. Dr. Landolph is a USC professor and active researcher working as a chemist, biochemist, cell biologist, genetic toxicologist, cell and molecular toxicologist, and molecular carcinogenesis and cancer researcher. (Landolph Decl., ¶¶ 8-10.) Dr. Landolph explains that the primary air pollutant of concern emitted by locomotive engines is diesel exhaust and its particulates, referred to sometimes as Diesel Particulate Matter (“DPM”). These fine particulates, whose size is in the submicron range, penetrate deeply into the lungs, and are very toxic to the human respiratory system. (Landolph Decl., ¶ 75.) Dr. Landolph fully describes his methodology and why it is appropriate in the given circumstances. (Landolph Decl., ¶¶ 38-42.) He further shows that DPM is an established general human carcinogen according to the International Agency for Research on Cancer (IARC), the U.S. National Toxicology Program (NTP), the U.S. Environmental Protection Agency (E.P.A.), and the Office of Environmental Health Hazard Assessment (OEHHA). (Landolph Decl., ¶¶ 68-69.) Furthermore, some of the matter is excreted from the lungs into the mouth and swallowed, which then introduces the compounds into the gastric system including the esophagus, stomach, intestines, liver, pancreas, kidneys and bladder. (Landolph Decl., ¶ 119.) Reviewing the data regarding DPM as a carcinogen and specifically its relationship with bladder cancer (Landolph Decl., ¶¶ 38-118), Dr. Landolph concludes that exposure of workers in the railroad industry such as Mr. Blankenship to diesel exhaust and the chemical compounds it contains by inhalation during the course of their normal occupations in the railroad industry exposes them to the large number of strong carcinogens contained in diesel exhaust, which can induce and increase the risk of bladder cancer. (AMF 27-32, Landolph Decl., ¶ 119(A-D).)
Dr. Gale agrees with this assessment and likewise opines that general causation is established. He also offers opinions based on a detailed analysis about the carcinogens he analyzes (Gale Decl., ¶¶ 42-53) and the methodology he employs (Gale Decl., ¶¶ 24-27). Gale opines that exposures to diesel engine exhaust particulates and its constituents generally are a cause of cancer in humans. (AMF 40, Gale Decl., ¶ 40.) Further, he states that “exposures to diesel engine exhaust particulates and its constituents including, but not limited to polycyclic aromatic hydrocarbons, dioxin and arsenic are a cause of bladder cancer.” (AMF # 41, Gale Decl., ¶ 54.)
This properly creates a dispute of material fact as to whether there is general causation. Accordingly, Defendant’s motion cannot be granted on these grounds.
Defendant then attacks specific causation on the grounds that general causation cannot be established, and that Dr. Nony opines that a specific causation analysis must fail because three of the four required factors are not present. (SSMF 14.) Specifically, Dr. Nony opines: (1) there is no coherence and consistency in the medical and scientific literature relating to whether the alleged exposures could cause the alleged disease, (2) Plaintiff's cannot satisfy the principle of dose response, and (3) alternative causes cannot be eliminated (e.g. cigarette smoking). (SSUMF 32 and 33.)
First, as discussed above, general causation may be established. Plaintiff presents competent evidence that there is consistent medical and scientific literature related to whether exposures could cause bladder cancer.
Second, Plaintiff presents evidence that establishes specific causation. Prof. Salmon is an expert on carcinogenic substances and the effects of toxic exposure in humans. (Salmon Decl., ¶ 1.) Prof. Salmon provides an excess risk calculation finding that, to a reasonable degree of scientific probability, the additional risk of cancer which Blankenship experienced as a result of these workplace exposures is substantial, between 2817and 3812 per million. (AMF 38.) Thus, Plaintiff’s exposure to contaminants as a result of his employment with UPR was a substantial contributing factor to the development of bladder cancer. (Salmon Decl., ¶ 52(e).) Likewise, Dr. Gale states that “the occupational exposures of Mr. Gordon Blankenship to diesel engine exhaust particulates and its components including, but not limited to, polycyclic aromatic hydrocarbons, dioxin and arsenic were, more likely than not, a cause of his bladder cancer.” (AMF # 39; Gale Decl., ¶¶ 4, 69.) Thus, there is a dispute of fact as to specific causation.
Accordingly, Defendant’s motion for summary judgment is DENIED.
Moving party is ordered to give notice.
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