## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 11 - 00250 - CV

BNSF RAILWAY COMPANY APPELLANT
V. JAMES E. PHILLIPS APPELLEE

---------- FROM THE 236TH DISTRICT C OURT OF TARRANT COUNTY

---------- 

### DISSENTING OPINION

---------- T he evidence is legally insufficient to support the jury’s finding that Phillips ’s claims did not accrue before April 13, 2004 , and to the extent that Phillips ’s experts re lied upon epidemiological studies to prove that his exposure to vibratory forces from rough riding locomotives caused his injuries, they made no effort to demonstrate that the studies met the mandatory requiremen ts for scientific reliability established in Merrell Dow Pharmaceuticals , Inc. v. Havner ,2 953 S.W.2d 706 (Tex. 1997) , and reinforced in Merck & Co. v. Garza , 347 S.W.3d 256 (Tex. 2011)

. I therefore dissent. A claim under the Federal Employers’ Liability Act (FELA) “ accrues when a plaintiff knows or should know that his injury is work related, that is, when a plaintiff is aware of the critical facts concerning his injury and its causation.” Bealer v. Mo. Pac. R.R. Co. , 951 F.2d 38, 39 (5th Cir. 1991). T he jury charge’s sixth question stated as foll ows: Concerning Plaintiff James E. Phillips’ claims in this case, did he know, or should he have known, before April 13, 2004 of both the alleged injury and its cause? Plaintiff James E. Phillips has the burden of proof to show that he did not know before April 13, 2004 of both the alleged injury an d its cause. [Emphasis added.] Phillips did not testify that he did not know , or in the exercise of reasonable diligence should not have known, before April 13, 2004, that his in juries were work related

. And a l though counsel as ked Phillips about “the very first time that [he] understood that [his] spinal condition was in fact caused by [his] work,” and Phillips responded, “prior to

-- to 2005, possibly , somewhere in there, ” this testimony is no evidence that Phi llips did not know before April 13, 2004 , that his injury was work related because “prior to

. . . 2005” does not, in and of itself, implicate only a period of time be tween April 14, 2004, and December 31,
2004

— it also includes the period of time before Ap ril 13, 2004. See Lozano v. Lozano , 52 S.W.3d 141, 148 (Tex. 2001) (“When circumstances are consistent with either of the two facts and nothing shows that one is more probable than the3 other, neither fact can be inferred

. ”). Moreover, the question expres sly inquired about when Phillips acquired actual knowledge that his injuries allegedly resulted from BNSF’s negligence, but under the FELA, a mere “awareness of critical facts will impose a duty upon a claimant to investigate and confirm or deny his belief , otherwise the limitations period would be meaningless.” See Billman v. Mo. Pac. R.R. Co. , 825 S.W.2d 525, 527 (Tex. App.

— Fort Worth 199 2, writ denied); see also Fries v. Chicago Nw. Transp. Co. , 909 F.2d 1092, 1096 (7th Cir. 1990) (“[C]ase law

. . . onl y requires a finding that a plaintiff should have known of an injury, not that he possess actual knowledge.”). Thus, not only did Phillips not testify that he did not know before April 13, 2004, that his injuries were work related , his most direct testimo ny relating to that inquiry is irrelevant for purposes of determining when his claims accrued. Because there is no direct evidence that Phillips did not know before April 13, 2004, that his injuries w ere work related, the majority turns to what it

seems to contend is circumstantial evidence demonstrating that Phillips did not realize before April 13, 2004, that his job caused his injuries. But while an ultimate fact may certainly be proved by circumstantial evidence, n one of the evidence cited by the major ity supports the jury’s finding. The physician who “appeared to connect Phillips’s symptoms to his diabetes” did so only after April 13, 2004

— in June 2004. Maj

. Op. at 7. And it is of no consequence to the accrual inquiry whether or not BNSF made Philli ps aware of the risks of full body vibration. The caselaw contains no requirement that an employer provide its4 employee with notice that the employer is, or could be, the cause of the employee’s alleged injuries

. What relevant evidence is contained in the record demonstrates that Phillips sought treatment for his injuries as early as 1998

— he complained of “soreness up + down spine”

— and he identified “rough riding railroad engines” as an aggravating activity. Phillips thus possessed critical facts of both his injuries and their c ause years b efore April 13, 2004, which consequently imposed a duty upon him to investigate then

. See Billman , 825 S.W.2d at 527. Because there is no evidence that Phillips did not know before April 13, 2004, that his injuries wer e work related, the evidence is legally insufficient to support the jury’s answer to charge question number 6. Furthermore, if there was any confusion after Havner about the threshold requirements for determining whether epidemiological evidence is scienti fically reliable to prove causation , the supreme court unquestionably clarified the relevant standards in Merck

. Specifically, e pidemiological evidence used to prove general causation is unreliable if it does not show a doubling of the risk that is statis tically significant at the 95% confidence level. Merck & Co. , 347 S.W.3d at 262

– 66. Moreover, a plaintiff must show that he or she is similar to the subjects in the studies and exclude with reasonable certainty other plausible causes of the injury if the re is evidence of those causes. Id. ; Faust v. B NSF Ry. Co. , 337 S.W.3d 325, 334 (Tex. App.

— Fort Worth 2011, pet. denied).5 T o the extent that Phillips’s experts relied upon epidemiological studies to prove that his exposure to vibratory forces from rough r iding locomotives caused his injuries, they made no effort to show that the studies demonstrated a doubling of the risk that was statistically significant at the 95% confidence level. In the absence of that evidence, their opinions are unreliable and, leg ally, no evidence. See Havner , 953 S.W.2d at 714. The majority contends that Havner ’s and Merck ’s standards apply only to toxic tort cases, but that is expressly refuted by Merck ’s unambiguous pronouncement that “ Havner ’s requirements necessarily apply t o all epidemiological evidence.” Merck & Co. , 347 S.W.3d at 264 (emphasis added)

. The trial court should have granted BNSF judgment as a matter of law on
either the limitations issue or the causation issue. Because th e majority fails to
correct either er ror , I respectfully dissent.

BILL MEIER JUSTICE
DELIVERED: August 1 , 2013