### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE Novem ber 12, 200 2 Session
HELLEN M. WILSON v. CSX TRANSPORTATI ON, INC. Appeal from the Circuit Court for Hamilton County No. 97CV1509 W. Neil Thomas, III, Judge

FILED MARCH 18, 2003
No. E2002-00291-COA-R9-CV

This interlocutory app eal rais es the question of the admissibility of the testimony of three expertwitnesse s which the Plaintiff , Hellen M

. Wilson, soughtto present at trial. The Trial Court excluded the expert

testimony of Dr. William J. Nassetta and certified pursuant to T.R.A.P. Rule 9 the follo wing

ques tion f

or thi s Cour

t: “wheth er the tes timon

y o f the exper t witness, Wi lliam J. Nassett a, M.D., as reflected in [his] attached affidavit,. . .is admissible under the doctrine o f th e Tennessee Supreme Court decision in McDaniel v. CSX Transportation, Inc. ” The Tria l Court als o granted permission to CSX Transportation (CSXT) to appeal its ruling admitting the testimony of two other expert witnesses offered by the Plaintiff. We hold that the testimonyof all three expert witnesses is admissible under the principles enunciated in McDaniel

. Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court Affirmed in Part and Reversed in Part; Cause Remanded

H OUSTON M. G ODDARD , P.J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS and D. M ICHAEL S WINEY , JJ., joined.
Pa trick S. O’Brien and Newton G. McCoy , St. Louis, Missouri, and Clarence E. Walker , Chattanooga, for the Appellant, Hellen M. Wilson Wayne L. Robbins, Jr. and Mary Tay lor Gallagher, Nashville, for the Appellee, CSX Transportation, Inc.
OPINION
Mrs. Wilson brou ght this a ction ag ainst

CSXT under the Federal Employ er’s Liability

Act (FELA), seeking

damage s for the

death of her husba

nd, Ricky J. Wilso n, who was employed by CSXT as a carman. Mr. Wilson died onNovember 12, 1996 as a result of a malignant bra in tumor known as a glioblastoma multiforme, and acute my elogenous leukemia. Mr. Wilsonwas diagnosed withbrain cancer a t age 40 and died at age 42. Mrs. Wilson alleges several theor ies of negligence-2-

in connec tion with hi s exposure to various chemicals at his workplace, which she asserts c aused or contributed to cause his brain cancer and leuke mia.
CSXT moved for su mmary jud gm ent on November 9, 2001, alleging no g enuine issue of material fact regarding c ausation of Mr. Wilson’s injuries and death. CSXT presented the testimony of several experts in support of its assertion that there is no proven causal connection between the chemicals to which Mr. Wilson was exposed and his brain cancer and leukemia.

In support of

her opposition to summary judgment, Mrs. Wilson presented the testimony of Dr. James E. Girard, a chemist, who opined, inter alia , as follo ws:

It is my expert opinion, to a r

easonab le degree of scie

ntific certain

ty that Mr. Ricky

Wilson’s sickness and dea th, were caused by hi s exposure to chemicals while he was employed a s a carma n [for] CSX Transportation. He was exposed repeatedly to di esel exha ust. The chemica ls w hich have been described above, na mely benzene, toluene, xyl en e and methylene diisocyanate, toluene

diisocyanate,
ca dmium, and perchloroethy lene are all inhalation hazards and can also be absorbed through the skin. According to D uPon t Chemical Co mp an y, “repeated or

prolonged overexposure to solvents may lead to permanent brain and nervous sy stem damage.” Mr. Wilson was exposed to benzene, a known car c inogen. Benzene expo sure i s recogn ized as a cause of acute my elogenous leukemia, and has b een shown to incre ase the incidenc e of neop lasms at multiple sit

es in chr onic inha lation and gava

ge studi es in rode

nts. He was also exposed to cadmium, a known carc ino gen. Cadmium andcadmium compounds are known to be human carcinogens based
on sufficient evidence o f carcinogenicity from studies in humans includ ing epidemiological and mechanistic information which indicate a causal relationship between exposur e to cadmium and cadmiu m compoun ds and huma n cance r. He wa s also expos ed to toluene diisocyanate. Tolue ne d iiso cy anate is reasonably anticipated to be a human carc inogen based on sufficient evidence of carcinogenicity

in experimental animals. (Emphasi s in original). Dr. Vincent F . Garry , a pathol ogist and toxicologist, testif ied that in

his opini on the group of chemicals to which Mr. Wilson was exposed “was eminently invo lved in a causal relationship to his cancer.”
The Trial Court ruled that the expert tes timony

of Drs. Girard and Garry

was admissible and sufficient to create a genuine issue of fact as to causation. The Court treated CSXT’s ar

gumentswith regard to th e te stim ony of Plai ntif

f’s expe rt D r. Willi am J. Nassetta

as a motion in limine to exclude-3-

Dr. Nassetta’s testimony. The Court ruled Dr. Nassetta’s testimony ina dmissible, stating the following in rega rd to his a ffidavit :
I think if you take the medica l terminology out of the a ffida vit, Dr. Nassetta, regardless of what he say s in his last paragraph, Dr. Nassetta’s affida

vit can be bo iled d

own to say , we h ave a

hunc h. We don’t have an y st udies or s t atistic al data. We have a hunch and we think at sometim

e inthe future this malady will connected with

these compounds. I don’t thin

k th a t’s enoug

h, I r eally don’t, so I ’m going

to grant the Motion in Limine with respect to Dr . Nassetta.

* * * [Counsel fo

r Plaintif f]: Dr. Na ssetta is not allowe d to testif y a t all? Court: Right. I just think it’s too speculative, Pat. I r eally do.
The Trial Cou rt granted Mrs. Wilson’s motion seeking permission for an interlocutory app eal under Tenn. R. A

pp. P. 9. CSXT

filed a simil ar motion whi ch also was granted, and this Court granted an interlocutory

appeal to both parties.
We will first address CSXT’s argument made in its brief that “pursuant to Rule 56.03 [of the Tennessee Rules of Civil Procedure], the court should have taken all of the statements set

forth in CSXT ’s Concise Sta

tement of Materia l Facts a nd Suppleme

ntal Conci se Stateme

nt of Mate rial Fact s as true bec ause the

Plaintiff did not, asrequired by

that rule , file

any pleading disputing the Concis e Statements of Facts filed by CSXT.”
Mrs

. Wilson’s re sponse to C SXT’s motio n for summa ry judgmen t was sty led “Plain tiff’ s additional concise statement of facts and memorandum of law in opposition to Defenda nt’s Motion for Summary Judgment.” Although he r response does not, in corresponding numbered parag raphs, separa tely respond to each claimed undisputed fact set forth in the motion for summary judgmen t, it does set forth at length the facts Mrs. Wilson claims are established by the reco rd, and her assertions as to why they

establish a genuine issue of material fact f or trial.
This Court was recently

presented with an argument very similar to that presentedby CSXT in the case

of First Citizens Bank of Cleveland v. Cross , 55 S.W.3d 564 (Tenn.Ct.App. 2001). The Cross Court stat

ed as follows:
The appellees argue that summary judgment was properly

granted to thembecause, s o the ar gument g oes, Cros s failed t o comply with
va rious provisions of Tenn.R.Civ.P. 56. First, they contend tha t Cr oss did not com

ply with Tenn .R.Civ.P. 56 .03, which requir es a non-moving p arty

to respond to each fact set forth by the moving party by either (1) agree

ing that the fac t is undispu

ted; (2) agreeing-4- that the fact is undisputedfor the purposes of themotion only; or (3) demon strat ing, with spec ific cita tions to the

record , that the

fact is disputed. * * * We find tha

t Cross' r esponse i s substant

ially in compliance with the require ments of Rule 56.03. Cross' r esponse adequately

sets forth the facts that are undispute d. Furthermore , it adequ ately sets fort h, with appropriate citations, those facts that she allege s are in dispute.
Cross , 55 S.W.3d at 571. In thecase at bar, we have re viewed M

rs. Wilson’ s respons e and find it is substantially in compliance with Rule 56.03.

In its appeal, CSXT argues that the Trial Court erred in finding the testimony of Dr. Girard andDr. Garry

admissible and sufficient to establish a genuine issue of m ater ial fact regarding causation of Mr. Wilson’s death. In the case of McDaniel v. CSX Transportation, Inc. , 955 S.W.2d 257 (Tenn.1 997), the

Supreme C ourt addr

essed in d

epth th e admissibility of expert testimony as contemplated by Rule 702 and 703 of the Tennessee Rules of Evidence. I n McDaniel , which was also a FE LA c ase, the

Court stat

ed as follows:
After examining

the basic legal p rin ciples gover

ning the admissibil

ity of scientif ic evide nce and th e change in direction by the federal courts, we turn to Te nn es se e t o c la ri fy o ur st an da rd of ad mi ss ib il it y.
In gener al, quest ions reg arding

the admiss ibilit

y , qualific ations, relevancy an d c om pe te nc y of

ex pe rt te st im on y ar e left to the discretion of the trial court. State v. Ballard , 855 S.W.2d 557, 562 (Tenn.1993). The tria

l court' s ruling in this regard may only be overturned

if the disc retion is arbitrarily e

xercised or abused. Id. The specific rules of evidence that govern the issue of admissibility of scientif ic proof in Ten nessee are Tenn. R. Evid. 702 and 703. The former p rovides:
If scientific, technical, or other specialized knowl edge will substantially assist the trier of fact to understand the evidence or

to determine a fact

in issue, a

witness qualifiedas an expert by knowledge, skill, experience , train ing, or education may testify in the form of an opinion or otherwise.
And Tenn . R. Evid. 70 3 states:
The facts or

data in the particular case upon which an expertbases an opinion or inference may be t hos e1 A relative risk of 2.0 mea ns essen tially that t he gro up which is st udied has a risk which i s twice t hat of the gene ral po pulatio n of co ntracting the dise ase un der stu dy. -5- perceived by or made known

to the expert at

or before the hearing . If o f a ty

pe reasonably

relied upon by exp erts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible i n evidence. The court shall disallow testimonyin the form of

an opinion

or infer ence if the underlying facts or d ata indicat e lack o f trustwor thiness.
The plaintiffs contendthat the expert testimony in this cas e is relia

ble andthat it will substantially assist the jury on the issue of causation. The defendant argues that irrespective of Frye or Daubert, there m ust be adherence to the

strict requirements contained in the languag e of the rules a

nd also a rea son abl e st and ard for pro vi ng c aus ati on. It contends that

the plain tiffs' s cientifi c evidence is unr eliable a nd must be excluded. Th e defe ndant argues that an epidemiologica l study must show a relative risk of g reater tha n 2.0, whic h severa l courts have said means that a disease more likely than not was caused by

the specific agent o

r event. 1 See Daubert v. M erre ll Dow Pharmace uticals, Inc. , 43 F.3d 13 11 (9th Cir.1995), cert. denied , 516 U.S. 869, 116 S.Ct. 189, 133 L.Ed.2d 126 (1995 ); DeLuca v. Merrell Dow Pharmaceuticals, Inc. , 791 F.Supp. 1042 (D.N.J.1992), aff'd , 6 F.3d778 (3rdCir.1993). As discussed herein, thefactor is certa inly relevant but we reject the contention that it should b e adopte d as matter of law.
Alth ough the advisory comments to Rule 702 indicate that

Tennessee has followed the Frye test in analyzing the admiss ibility

of scien tific evidence, one c ommentator, recognizing the similarity between Tennessee Ru le 702 and Federal Rule Evid. 702, has raised the question of whether the Frye test of "general acceptance" should be abolished in Tennessee. N. Cohen, S. Sheppeard, and D. Paine, Tennessee Law of

Evidence , § 401.20 at 124, n. 233. Indeed, as the tria l court in this case noted, there is some evidence of a d epartur e from the strict adherence to the Frye test by courts in this State.

In our view, determining th e standard for the admissibility of scientif ic evidence requires an analy sis of the unique language found in Rules 702 and 703 of the Tennes see R ules of Evidence. For instance, Tenn. R. Evid. 702 requir es that the scientific evidence-6- " substantia lly assist the trier of fact," while it s federal counterpart requires only that the evidence "assist the trier

of fact." Fed.R.Evid. 702. This distinc t ion indicates that the probative force of the testimonymust be stronger before it is admitted in Tennessee. See, e.g. , Weinstein, Rule 702 of the Federal Rules of Evidence is Sound; It Should Not Be Amended , 138 F.R.D. 631, 636 (1991).
Si mi la rl y, Tenn. R. Evid. 703 states that "[t]he c ourt shall disallow tes timonyin the form of an opinion or inference if the underly ing facts or data indicate

lack of t rustwort hiness." There isno similar restriction in the federal rule. Fed.R.Evid. 703. Thus, as one writer has observed, "thea dditional l angua ge ... [in the Tennessee r

ule] is obviously designed to encourage

trial courts to take a more

active role in evaluating the reasonableness of the e xpert's reliance upon

th e partic ularbasi s for his or her testimony." R. Banks, Some Comparisons Between the New Tennessee Rules of Evidence and the Fe deral Rules of Evidence , Part II, 20 Mem.S.U. L.Rev. 499, 559 (1990)

. In sum, even though the facts and data need not be admissible, they must be review ed and found to be trustworthy by the trial cou rt.
Based on th e forego ing ana lysis, w e concl ude th at Ten nesse e's adoption of Rules 702 and 703 in 1991 as part of the Rules of Eviden ce supersede the general a cceptance test of Frye . In T enne ssee, under the recent rules, a trial court must determine whether the evidencewill sub stantiall y a ssist the tr

ier of fa ct to determine a fact in issue and whether the facts and data underlying the evidenc e indica

te a lack of trustw orthines s. Th e rules together
necessa rily require a deter min at ion as to the scientific validity or reliabil ity of the evidence. Simply

put, unless the scientific evidence is valid, it w ill not subst antia lly assist the

trier of fact, no r will its underlying

facts a nd data a ppear to be trustw orthy , but th ere is no requirement in the rule that it be genera lly acce pted.
Alth ough we do not

expressly adopt Daubert, the non- exclusive list of factor s to deter

mine reli ability

are useful in

applying our

Rules 702 and703. A Tennessee trial court may cons i der in determining
re li ab il it y: (1) whe

ther scie ntific ev idence h as been tes t ed and the metho dolo gy

with which it has been tested; (2) whether the evidence has been subjected to peer review or publica tion; (3) whether a potential rate of

error isknown; (4) whether, as formerly required by Frye , the evidence is generally accepted in thesc ie nt if

ic co mm un it y;-7- and(5) whether

the expert's research in the field hasbeen conducted independent of litigation.
Alth ough the trial court must analyze the sc ience and not merely the qualific ations, demeanor or conclusions of experts, the court need not weigh or choos e betwee

n two legitimate bu

t conflic ting sci entific views. The cour

t instead m

u st assure itself that the opinions are basedon relev an t scientific methods, processes, and data, and not upon an expert's mere speculation. See, e.g., Joiner , 78 F.3d at 530. The tria l court sh ould keep

in mind that

the prelim ina ry question under Tenn. R. E

vid . 104 is one of admissibility of the evidence

. Once the evidence is admitted, it will thereafter be tested with the crucibl e of vigorous cross-examination and cou n tervailing proof. After th at o ccurs, a defendant may , of course, challenge the
su fficiency

of the evidence b y mo ving for a direc ted verd

ict a t th e appropr iatetimes. See Tenn. R. Ci v. P. 50. Ye t it is import

ant to emph asize

that the weight to begiven to stated sc ientific

theories, and the resolutio n of leg itimate bu t competin

g scien tific views, a re matters appropri at el y e ntrusted to the trier of fact. See Joiner , 78 F.3d at 534-35 (Birch, J., concurring).
We recognize that the burden plac ed on

tria l cou rts to anal yz e and to
screennovel scientific evidence is a significant one. No framework exists that provides for

simple and

practic al applic ation in

every c ase; the complexity

and diversity of potential

scientif ic evide nce is simp ly too vast for

the appli cation of

a single test. See Developments in the Law--Confronting the New Challenges of Scientific Evidence , 108 Harv.L.Rev. 1481, 1513 -1516 (19 95). None theless, the preliminary questions must be ad

dressed by t he tria l court, see , Tenn. R. Evid. 104, and they must be addr essed within the framewor k of rules 702 and 703.
APPLI

CATI ON OF STA

NDARD
The trial cou rt correctly

foresa w the tre nd away from Frye and also used the factors set forth in Daubert as a framework for analy sis. As it observed, the scientif

ic theor y th at exposur

e to solve nts may cause toxic encephalopathy

has been tested frequently over a period of 25 ye ars. Becau se no precise diagnostic device or biological mechanism
can is o late the causal factor, the releva nt tests have been epidemiological studies. The expe rts in this cas e testifi ed at length about the field of epidemiology

and the use of cohort and case-control studies. The ex perts ag reed that epidemiological studies have been-8- used to test the hypothesis that exposure to solvents causes encephalopathy

and that numerous studies support a causal relationship. These studies have been reviewed, reco nstructed, published in leading journals in the field, and subjected to peer review. Although the "pos itive" studies have been criticized for f ailing to ac coun

t for conf ounding f acto rs, th e dia gnos is is r ecog nize d in medical textbooks and journalsas well as by sever

al national and world health organizations. We also obs erve tha t the rese arch in

this area, including that

of sever al of the plaintiff s' exper ts, was conducted independently of this litigation.
Ac co rd in gl y, we agree

with the trial court's finding that the evidence will substantia

lly a ssist the ju

ry to unders tand the e

vidence and to determine a fact in issue. We also agreewith the tr ial co urt's conclusi on t hat the methodology and principles underly ing the scientif ic evidence are sufficiently trustwort hy and

reliable to be presented to the trier of fact . The tri al court is not req

uired to d etermine whether it agrees with the evidence and should not substitute its view f

or the tri er of fa

ct. It should allow the

jury to consider legitimate but conflicting views about the scientific pr oof

. Provided the evide

nce is sc ientif

ic al ly v alid, criticisms of it and opposing views may be e licited on cross examination and/or establishedin the def

endant' s case. T

hat is the e ssence o f the law suit.
CONCLUSION
We have conclud ed t hat the scientific evidence proffered by the plaintiffs satisfies the requirements of Tenn. R . Evid . 702 and 703, andthat the tr

ial cour t did not abuse its disc

retion in a dmitting it into evidence.
McDaniel , 955 S.W.2d 25 7, 263-66 (Tenn. 1 997)(fo otnotes om itted); see also H

and v. Norf

olk Southern Ry. Co. , an unreported opinion of this Court filed in Knoxville on June 2, 1998.
Our review of the evidence

in light of the foregoing, including the reaffirmation of the discretion ac co rd ed tr ia l j ud ge s i n t he ad mi ss io n o f e xp er t t es ti mo ny, persuades us that in th is case the Trial Judg e was co

rrect in finding that the e xpert witne ss testimony of Dr. Gar ry and Dr . Girard offered on behalf of the Plaintiff met the requirements of Rule 702 and 703 of the Tenne ssee Rules of Evidence, and that the Trial Court did not abuse its discretion in the admission thereof.
We now turn our atten

tion to the p

roffer ed expert testimony

of Dr. Na ssett a. In its order granting permission t o Mrs. Wils on to seek an interlocutory appeal, the Trial Court certified the following question t

o be answ ered by

this Court:-9- Whe ther the testimony of the expert witness, William J. Nas setta , M.D., as ref

lec ted in th e at tac hed aff ida vit o f Dr . Willia

m J. Nassetta is admissible under the doctrine of the Tennessee S up reme Court decision in McDaniel v. CSX Transportation, Inc. , 955 S.W.2d 257 (Tenn.1997).
We first address Dr. N assett a’s qualifications as an expert witness. CSXT argues that Dr. Nassetta was not shown to be, in the words of Tenn.R.Evid. 702, “a witness qualified as an expert by know ledge , skill, experience, training, or education.” CSXT’s attack on Dr. N assetta is based solely upon its ar

gument t hat he is u

nqualified as an expe

rt, as it st ates in itsbrief th at “t he issue before this cour

t, is th e qual ificatio n of Dr. N assetta h imself, a s opposed

to the validity

of his scientif ic studies,” and “the questiondoes not revolve around the validity of the science but rather around Dr. Nassetta’s qualifications to present the opinions.”
It is clear to us from

both the Court’s comments and its wording of the question certified for appeal that its ruling was based on the findingthat Dr. Nassetta’s affidavit was too speculative and that it did not rely on any studies or

statistica l data to support his opinions. There is nothing in the record to suggest that the Court found Dr. Nassetta unqualified to give an opinion at all; in fact, the Courtruled that CSXT’s “Motion to Strike the affidavit of Dr. Nassetta is not well taken. The court has considered the affidavit of Dr. Nassetta.”
Neverth eless, we have reviewed t he q ualifica

tions of Dr . Nassett

a as cont ained in h

is curriculum

vitae, a ffidavit and depo sition. Dr . Nassett a is a med

ic a l doctor licensed to practice medicine in five states who also holds a master’s degree in public health. He is boa rd-cer tified in internal medicine and board-eligible in occupational a nd environmental medicine. Hetestified that he is actively involved, on a daily basis, in doing occupational medicine through his w ork for an occupational toxicology consulting company and a

n occupational medicalstaffing and consultation company.
Dr. Nass etta’s a

ffidavit further states asfollows:
I have review edmaterial safety da ta sheets, scientific literature, and othe r toxicological references with reg ard to the chemicals Mr. Wilson was exposed to during his employment with CSXT, a detailed description of the various employment tasks Mr. Wilson perfor med while working for CSXT in Birmingham, Alabama, a s well as the medi c al history of Mr. Wilson. I have personally

visited the CSXT facility in Birmingham, Alabama where Mr. Wilson worked. I have also reviewed numerous epidemiologic, toxicologic, and other scientif ic and medic al studiesinvolving the vari ous chemi cals to which Mr. Wilson was exposed.-10-

Base d on our review of the record, we f ind that Dr. Nassetta meets the requirements of Tenn.R.Evid. 702 and is qualified to render an expert opinion in this case. CSXT’s arguments to the
co nt ra ry, including the fac t that Dr. Nassetta has neve r publishe d a pape

r about br ain canc er, per

tain to the weight afforded to his testimony by the trier of f

act, and not its admissibility. According to the Supreme Court’s teaching in McDaniel , “the trial cour t must anal yz e the science an d n ot me re ly the qualific ations, demeanor or conclusions of experts.” The McDanie l Court stated that the Trial Court “must assure itself that the opini ons are based on releva nt scienti fic method s, pro cesses, and data, and not upon an expert's mere speculation.” 955 S.W.2d at 265. Ac co rd in gl y, we examine Dr . Nassett a’s testimony

to determine if it is based on valid and relevant science, and not merely

a speculative conclusion.
Dr. Nass etta’s a

ffidavit states the following

in relev ant part : Ricky Wilson, a black male, was diag nosed with brain cancer at the age of 40. Brain cancer is more common in white ma les (gliobl astoma

specifically) and peaks at an older age. Th erefor e, in the case of Mr. Wilson, it leads one to con sider pos sible occ upationa l, environmental or genetic predispositions as more l ik ely in the causati ve analy sis.
Brain gliomas (these

include astrocy

tomas), in particular appear to be
m or e related

to occupa

tional ris k factor s than othe r ty pes of br ain
cancer. * * * Alth ough the etiolo gy

of brain tumors in a

dults rema

ins larg ely unknown, a large number of studies ha

ve examined the rel ationship betweenthe envir

onment and occurr

ence of brain tumo

rs. Desp ite this, only two unequ

ivocal r isk factors have been identified: ionizing radi at ion and immuno-suppression. Other studies have identified possible environm

ental ris k factor s relate d to brain tumors. Th

ese include exposure to such things as: organic solvents, lubricating oils, poly aromatic

h y drocar

bons, motor

exhaust, w elding f

umes, insectic ides, vi nyl ch lo ri de mo no me r, fo rm al de hyd e, ru bb er in du st ry, work in electrical occupations, magnetic fields , fungicides and herbici des. Esta

blished r isk facto rs for br ain canc er, such

as genetic pred ispos ition and ionizin g radia tion can e

xplain only

a small proportion of the disease. C onventi onal lifestyle factors, such as tobacco smoking, alcohol drinki ng, and dietary intakes, have not been or are only

modestly associated with bra in cancer risk.
The occupa

tional expo sures pur su ant to the ava ilable his toric information were su

bstantial , chronic

and with out provision for2 Dr. Nassetta explained the dif ference between the concepts of “exposure” and “dose” as foll ows: “exposure is t he potent ial for comin g int o contact witha chemical . Dose impli es tha t [t he] chemical has actuall y gone across the interface of the hu man bod y.”
-11-

personal protection, resulting in an o pt imal environment for the development of tumors, including brain tumors.
It does not appear from the occupational histor y available tha

t Mr. Wilson was exposed to ionizing radiation or was immuno-suppressed in someway

prior to th

e develo pment of h

is brain cancer; however, there is ample evidenc e of h is exposure to orga nic solve nts, polyaromatic hy

drocarbons, motor exhaust and welding fumes. Therefore, it is my opinion within a reasonable deg ree of medical certain ty that these factors and Mr. Wilson’s occupational exposures caused, or contributedto the cause, of Mr. Wilson’s development of brain cancer and leukemia.
Dr. Nassetta adm itted in his deposition that he did not have any quantitative information about the am ount of ex posur e or do sage 2 Mr. Wilson had to the various chemicals at issue in thi s case. H e testifi ed as follows reg arding his qualita

tive exposu

re asse ssment: Q: Do you have

any information at a

ll about what dosage Mr. Wilson had of an y chemicalsinvolved in this laws uit?
A: No. T his is ve ry ty

pical of almost every

case in occupational
m edicin e. There is almost never opportunity to have a quantitative dose. Q: Without knowing dosage can you testify to a reasonable degree

of medical o r scienti fic certainty that a ny of these c

hemicals caused

or contributed to brain cancer? A: I believe so from a qua litative exposure assessment. Q: Is tha t qualitat ive exposur

e assess ment as a

basis for your opinion
so me th in g t ha t i s r ea so na bl y ac ce pt ed in th e s ci en ti fi c c om mu ni ty?
A: Y es. I

n fact, i f y ou read m

ost of the epidemio logica

l lite rature , you’ll find that’s how most of the studies are done.

* * *-12- Q: Do you know of any

literatu re that links any

of the ch emicals to which Mr. Wilson was exposed to brain cancer? A: It links them, yes. I think I mentioned those in my opinions.
There are numerous epidemiological studies cited in Dr. Nasse tta’s opinion, but the one upon which he and Pla

intiff pr imarily rely upon is cited and discussed in a textbook entitled Occupational Neurology and Clinical Neurotoxicology (Williams and Wilkins 1 994), in a chapter called Primary Brain Tumors Asso ciated W ith Chemic

al Exposu re , which reviews epidemiological studies concerning the association between oc cupational chemical exposure and brain tumors.
Dr. Nassetta

cites an d relies u

pon a stu dy ref

erred to as the Howe study, which found as follows:
An examination of cancer mortality between 1965 a nd 1977 among 44,000 pen sio ned Canadian railroad workers exposed to PAHs [pol yc yc lic aromatic hydr ocarbons] in diesel fumes indicated a signific antly

elevated brain cancer mortality risk among those who had worked as welders (SMR = 3.18).
The Howe study further

found an SMR (standardized mortality ratio) of 2.78 for brain cancer among those employeeswith the job classification “carman.” I t is not disputed that the SMR, or risk factor relative to the ge

neral po pulation, reported in this st ud y ( 2.78) is statistically significant. Mr. Wils on wor ked as a carma n for C SXT, a nd hi s empl oyment i nvol ved a l arge amo unt o f weld ing. Dr. Nassetta

testifie d in his dep osition tha t “the bod y of literatu re consi dered a s a whole

conclude [s] th a tthere’s a strong association, a strong relative risk, associated with these particular g roups of chemicals and the exposures and the outcome that we’re looking at in cancer.”
While the experts presented by CSXT naturally offer

opinions in opposition to that presented by Dr. Nass etta, CSXT

does not in

its brief challenge or dispute the scientific va lidity of the Howe stu dy or the other literature relied upon by Dr. Nassetta. As the McDaniel Court no ted, “it i s impor tant to emphasize that the weight given to stated scientific theories, a nd the resolution of legitimate but competing scientif ic views, are matters appropriately entrusted to the trier of fact.” 955 S.W.2d at 265.
We have reviewed the testimony of Dr. Nassetta i n light of the fa ctors en unciate d in McDaniel for determining reliability and admissibility under Tennessee Rules of Evidence 702 and 703, and find it admissible under these authorities.
For the foregoingreasons the judgment of the Trial Court allowing the expert testimony of Drs. Girard and Garry

is affirmed, the judgment holding Dr. Na sse tta’s tes timony inadmissib le is reversed, and the cause is remanded for trial. Costs of app eal are ad judged agains t CSX Transportation, Inc.-13- _________________________________________ HOUSTON M. GODDARD, PRESIDI NG JUDGE