## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 17 - 00168 - CV

BNSF RAILWAY COMPANY (INDIVIDUALLY AND AS SUCCESSOR

- IN

- INTERES T TO THE BURLINGTON NORTH ERN, INC., BURLINGTON NOR THERN & SANTA FE RAILWAY COM PANY AND ATCHISON TOPEKA AND SANTA FE RAILWAY COMPANY) APPELLANT

V. LEONARD A. BACA APPELLEE

---------- FROM THE 48TH DISTRI CT COURT OF TARRANT COUNTY

TRIAL COURT NO. 048

- 267301

- 13

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### M EMORANDUM OPINION 1

----------

1 See Tex. R. App. P. 47.4.2

In this permissive interlocutory appeal involving a claim under the Federal Employers Liability Act (FELA), Appell ee Leonard A. Baca alleges that while working for Appell ant BNSF’s predecessor in interest, he was exposed to

as bestos , caus ing him to develop asbestosis. See 45 U.S.C.A. §§ 5 1

– 60 (West
2007 ). Baca retained as an expert Dr. Alvin Schonfeld, a pulmonologist, who provided a report in which he concluded Baca’s asbestosis was causally related to his exposure to asbest os during his employment. BNSF moved to exclude Dr. Schonfeld’ s causation opinion as inadmissible because it was unreliable under well

- established caselaw. 2 The trial court denied the motion but also granted permission in its order for BNSF to immediatel y appeal, finding that the order involved a controlling question of law as to which there is a substantial ground for difference of opinion and an immediate appeal from the order would materially advance the ultimate termination of this litigation. See Te x. Civ. Prac. & Rem. Code § 51.014(d) (West 2017 ); Tex. R. Civ. P. 168

. BNSF filed a petition for permissive appeal, which we granted. See BNSF Ry. Co. v. Baca , No. 02

- 17

- 00168

- CV , 2017 WL 2570826 , at *1 (Tex. App.

— Fort Worth June 14, 2017, no pet.) (me m. op. & order) . The controlling question of

2 Included among th e cases BNSF cited were Daube rt v. Merrell Dow Pharms., Inc. , 509 U.S. 579 (1993) ; Borg

- Warner Corp. v. Flores , 232 S.W.3d 765 (Tex. 2007) ; Merrell Dow Pharms., Inc. v. Havner , 953 S.W.2d 706 (Tex. 1997) ; and E.I. DuPont de Nemours & Co. v. Robinson , 923 S.W.2d 549 (Tex. 1995)

.3

law the trial court identified and ruled upon in its order, and the sole issue in this appeal, is whether the Federal Employers Liability Act’s (45 U.S.C. §§ 51

- 60) lower causation standard

— i.e. , whether a rai lroad’s negligence played any part, even the slightest, in bringing about the injury

— makes inapplicable the expert admissibility standards expressed in cases like E.I. DuPont de Nemours & Co. v. Robinson , 923 S.W.2d 549 (Tex. 1995) and Merrell Dow Pharmace uticals, Inc. v. Havner , 953 S.W.2d 706 (Tex. 1997). We answer no. Because the trial court denied BNSF’s motion to exclude based on the opposite conclusion, we reverse the trial court’s order and remand this case for further proceedings. I. BACKGROU ND FACTS 3
FELA makes any railroad engaged in interstate commerce liable in damages for an injury to or death of an employee sustained while employed by the railroad if the injury or death resulted in whole or in part from the negligence of the railroad ’ s e mployees or by reason of any defect or insufficiency in its equipment due to its negligence

. See 45 U.S.C.A. § 51; Un ion Pac. R .R. v. Williams , 85 S.W.3d 162, 165 ( Tex. 2002 )

. To prevail on a FELA claim, a plaintiff must establish the traditional common

- law elements of negligence: duty, breach,

3 Bac a has filed a motion to dismiss in which he argues in part that this court lacks jurisdiction over this permissive interlocutory appeal because the issue BNSF has presented for review in its appellant’s brief materially differs from the issue it presented in its petition for permissive appeal and which the trial court granted it permission to appeal . Accordingly , we set fort h in detail the factual and procedural background of this appeal , that we may appropriately address Baca’s jurisdictional argument

.4

foreseeability, and cause

- in

- fact. See Tufariello v. Long Island R.R. , 458 F.3d 80, 87 (2d. Cir. 2006); Abraham v. Union Pac. R.R. , 233 S.W.3d 13, 17 (Tex. App.

— Houston [14th Dist.] 2007, pet. denied). But a pla intiff’s burden to establish a railroad’s liability under FELA is lighter than it would be in an ordinary negligence case because FELA pr escribes a relaxed standard of causation

. See Lynch v. N e

. Reg ’

l Commuter R.R. , 700 F.3d 906, 911 (7th Cir. 2012) ; Abr aham , 233 S.W.3d at 17. U nder that relaxed causation standard, a plaintiff is entitled to prevail on a FELA claim if the railroad’s negligence played a ny part, even the slightest , in producing the injury or death for which damages are sought. See CSX Tra nsp. , Inc. v. McBride , 564 U.S. 685, 688, 705 (2011) ; BNSF Ry. Co. v. Nichols , 379 S.W.3d 378, 382 (Tex. App.

— Fort Worth 2012, pet. denied)

. This relaxed causation standard is often referred to as a “ feather wei ght ” standard. See Maritime Overseas Corp. v . Ellis , 971 S.W.2d 402, 406 (Tex. 1998). A. B ACA ’ S FELA C LAIM Baca sued BNSF alleging a claim under FELA

. 4 His theory of liability is straightforward: he c laims that his exposure to toxic substances and dusts , including asbestos and asbestos

- containing products and materials , while in the course of his employment with BNSF caused him to develop asbestosis. Because whether a causal connection exists between a person’s exposure to a chemical and a disease from which he suffers is outside the common knowl edge

4 Baca also alleged claims for negligence per se and negligent infliction of emotional distress. Those claims are not at issue in this appeal.5

and experience of lay persons , expert testimony is generally required to prove such a causal connection

. See Guevara v. Ferrer , 247 S.W.3d 662, 665 (Tex. 2007); Abraham , 233 S.W.3d at 18 ; Pilgrim’s Pride Corp. v. Smoak , 134 S.W.3d 880, 893

– 94 (Tex. A pp.
— Texarkana 2004, pet. denied)

. Baca retained Dr. Schonfeld to do just that

. B
. D R . S CHONFELD ’ S R EPORT Dr. Schonfeld is a pulmonologist whose qualification s to make an opinion
as to whether Baca’s exposure to asbestos during his employment with BNSF caused him to develop asbestosis are not at issue

. In support of his claim , Baca produced a report from Dr. Schonfeld, in which Dr. Schonfeld s ummarized his opinion concerning that question

. Dr. Schonfeld’s report states that he interviewed and examined Baca. The report sets forth the history of Baca’s exposure to asbestos, which was relayed to Dr. Schonfeld by Baca. According to the report, Baca ’s working career has almost exclusively been as a railroad worker. Baca was laid off from the railroad in approximately 1965, so for a few months he worked for the Arizona Highway Department, where he used asbestos gloves when removing hot objects from a stove. But other than tho se few months in 1965 , the report says, Baca worked for the railroad from 1964 to 1996

. Ba ca told Dr. Schonfeld that on an intermittent basis for about six months in 1964, he helped demolish a roundhouse in Winslow, Arizona , and he would sweep up asbestos without the use of a mask or respirator. Baca also told Dr.6

Schonfeld that he r ode on diesel engines that had asbestos in the ceiling and that the asbestos dust would fall on him. Dr. Schonfeld further stated that Baca remembered asbestos was in the brake hoses and that for about six months, he fired the asbestos

- clad steam generato r on the diesel passenger units and performed repairs on the steam generator on an as

- needed basis

. Baca further told Dr. Schonfeld that he worked in refrigerator cars that were lined with asbestos and that he would clean them out and sweep up asbestos. Finally, Baca told Dr. Schonfeld that he was present while other employees were changing brake shoes and that he was in other places where employees were working on and repairing the railroad’s rolling stock. Dr. Schonfeld noted that Baca had never smoke d. He performed a physical examination on Baca , which revealed that his lungs “were clear to auscultation and percussion.” He also noted a report from Dr. Donald Breyer, who on August 30, 201 1 , had done a B

- reading of a chest x

- ray that had been performe d on Baca on August 16, 2011

. 5 Dr. Schonfeld relayed Dr. Breyer’s findings, stating Dr. Breyer concluded the x

- ray showed i rregular interstitial infiltrates in both mid

- and lower

- lung zones having a “shape and size of s/s and a profusion of 1/0” and that Dr. Breyer had not noted any p leural abnormalities. Dr. Schonfeld also noted that Baca had undergone pulmonary function test s in 2012 and that the results were normal.

5 Baca also designated Dr. Breyer, a board

- certified diagnostic radiologist and a certified ILO “B” Reader, as an expert.7

Based upon all of this information, Dr. Schonfeld concluded as follows: Given [Baca’ s] history of significant exposures to asbestos in the workplace and given an appropriate latency and given the roentgenographic findings described above, I feel with a reasonable degree of medical certainty that Mr. Baca is diagnosed as having bilateral a sbestosis. I feel with a reasonable degree of medical certainty that this diagnosis is causally related to his workplace exposures to asbestos as noted above. BNSF subsequently filed a motion to exclude Dr. Schonfeld’s causation opinion.

II. PROCEDUR AL BACKGROUND A. BNSF’S M OTION TO E XCLUDE In its motion to exclude, BNSF argued that Dr. Schonfeld’s causation opinion was inadmissible because it was unreliable. 6 See Daubert , 509 U.S. at 589 ( stating Rule 702 of the Federal Rules of Evidence requires “ that any and all scientific testimony or evidence admitted is not only relevant, but reliable ” ); Robinson , 923 S.W.2d at 5 50, 5 5 6

– 5 7 (holding Rule 702 of the Texas Rules of Evidence requires the same)

. I t advanced two grounds for why that opinion w as

unre liable

. First, BNSF argued Dr. Schonfeld’s causation opinion was not based on a reliable evidentiary foundation

. Second, it argued that Dr. Schonfeld’s methodology was unreliable. In making these two arguments, BNSF acknowledged FELA ’s feather we ight cau sation standard

. But it asserted that FELA , though relaxing the standard of causation relative to a common

- law negligence claim , does not similarly relax the procedural standards for

6 BNSF did not contend that Dr. Schonfeld’s opinion was inadmissible because it was irrelevant.8

determining the threshold issue of whether an expert’s causation opinion is admissible. Thus, even though this is a FELA case, BNSF argued, Dr. Schonfeld’s causation opinion must meet state procedural requirements for reliability to be admissible , including the requirements of Daubert and Robinson

. See Kan

. City S. Ry. Co. v . Oney , 380 S.W.3d 795, 800 (Tex. App.

— Houston [14th Dist.] 2012, no pet.) ( “As a general matter, FELA cases adjudicated in state courts are subject to state procedural rules, but the substantive law governing them is federal.” (quoting St. Louis Sw. Ry. C o. v. Dickerson , 470 U.S. 409, 411 (1985))). Having argued that the trial court was required to apply state procedural standards of re liability to Dr. Schonfeld’s opinion , BNSF then discussed t he standards it believed apply in this case

. Citing Austin v. Kerr

- McGee Refining Corp. , 25 S.W.3d 280, 292 (Tex. App.

— Texarkana 2000, no pet.) , i t noted that a plaintiff in a toxic tort case must establish both general and specific causation

. BNSF focused on specific causation in particular , citing Havner , 953 S.W. 2d at 714, for the proposition that “[s]pecific causation asks whether the substance at issue caused a particular plaintiff ’ s injury. ” It pointed to caselaw noting that asbestosis appears to be a dose

- related disease , meaning “ the more one is exposed, the more likely the disease is to occur, and the higher the exposure the more severe the disease is likely to be.” Borg

- Warner , 232 S.W.3d at 771 (quoting 3 David L. Faigman e t a l., Modern Scientific Evidence: The Law and Science of Expert Testimony § 28:22, at 447 (2007) )

. And it also asserted that9

medical science has established that mere background levels of exposure to asbestos are not sufficient to cause disease; rather, pointing in part to Borg

Warner , 232 S.W.3d at 771, BNSF stated, “[t] he accepted th reshold exposure for developing asbestosis is at least 4

- 5 fiber years ( f/cc years), and more likely 25 to 100 fiber years.” With the foregoing in view, BNSF turned to discuss Daubert and Robinson ’s reliability standard s. It first contended Daubert and Robinson require
expe rt testimony to be based upon a reliable evidentiary foundation

. And i n the context of an asbestosis case, BNSF argued, evidence of the amount

— or dose

— of asbestos the plaintiff was exposed to is a necessary evidentiary foundation for an expert to reliably opine that the plaintiff’s exposure to asbestos caused him to develop asbestosis because without knowing the dose, an expert has no reliable basis upon which to conclude that the plaintiff’s exposure to asbestos met or exceeded the sc ientifically

- accepted exposure threshold that is necessary to cause that disease. To support that contention, BNSF relied on Borg

- Warner

, 232 S.W.3d at 77 3 , as well as Abraham , 233 S.W.3d at 21 , in which one of our sister courts stated that “[k] nowledge o f the extent of exposure to a potentially harmful substance is essential to any reliable expert opinion that the particular substance caused a disease. ” Second, BNSF contended Daubert and Robinson require the methodology underlying the expert’s testimony t o be reliable. See Daubert , 509 U.S. at 592

– 93; Robinson , 923 S.W.2d at 557

. Conducting that inquiry, BNSF argued,10

requires the trial court t o consider whether the expert’s methodology (1) has been subjected to peer review and publication, (2) has a high known or potential rate of error, (3) has standards controlling its operation, and (4) enjoys general acceptance within a relevant scientific community. See Daubert , 509 U.S. at
593

– 94 ; Robinson , 923 S.W.2d at 557

. Pointing to Havner , 953 S.W.2d at 715 , BNSF acknowledged that in a toxic

- tort case such as this one, a plaintiff simply may not be able to obtain reliable, direct evidence of the amount of the plaintiff’s
exposure to the toxin

. But again pointing to Havner , 953 S.W.2d at 7 20 , BNSF stated that i n such cases, the expert can utilize epidemiological studies to circumstantially establish that the plaintiff’s exposure or dose levels were comparable to or greater than the levels of the subjects in th ose studies, but the expert must exclude any other plausible causes of the plaintiff’s injury or condition with reasonable certainty. BNSF then argued that Dr. Schonfeld’s opinion did not satisfy either of these two reliability requirements. B. B ACA ’ S R ESPONSE In response to BNSF’s motion, Baca acknow ledged that because h e brought his FELA claim against BNSF in state court , the trial court was required to apply federal substantive law but state procedural law in considering BNSF’s motion

. He also acknowledged that deci sions concerning the relevance an d , consequently , the admissibility of expert testimony are generally based up on procedural rules of evidence. Howe ver, Baca argued , whether an expert’s11

testimony is relevant and , therefore, admissible is a question that necessarily depends upon the causat ion standard that applies to the claim under consideration

. Citing Brown v. Western Railway of Alabama , 338 U.S. 294, 298 (1949), Baca maintained that state procedural rules cannot be applied in such a
way as to impose unnecessary burdens upon the rights of recovery authorized by FELA and argued that FELA ’s featherweight caus ation standard should

“ significantly influence a determination of the admissibility of an expert’s causation testimony

. ” Baca argued that FELA ’s featherweight causation standard impa cted state procedural standards governing the admissibility of expert testimony in two ways. First, Baca argued, FELA ’s lower causation standard rendered Borg

- Warner and Havner wholly inapplicable in FELA cases

. Second, Baca insisted that given FELA ’s fe atherweight causation standard , the admissibility standards set forth in Daubert and Robinson are relaxed in FELA cases such that the trial court should more leniently apply Daubert and Robinson to expert testimony in a FELA case than it would in a non

- FEL A case. C. T HE T RIAL C OURT ’ S R ULING The trial court considered BNSF’s motion to exclude by submission. On January 20, 2017, the trial court issued a letter ruling indicating that it had denied the motion. Additionally, in the letter , the trial court explained the basis of its ruling: it stated that in denying the motion, it “ went with the plaintiff on the issue of the application of FELA causation standards to . . . Dr. Schonfeld’s opinion on12

causation.” The trial court ultimately signed an order de nying BNSF’s motion to exclude and granting it permission to seek a permissive interlocutory appeal because it found the order involved a controlling question of law as to which there is substantial ground for difference of opinion and an immediate appeal would materially advance the ultimate termination of this litigation

. In pertinent part, the trial court’s order provide s , The controlling question of law as to which there is substantial ground for difference of opinion is whether the Federal Employers L iability Act ’ s (45 U.S.C. §§ 51

- 60) lower causation standard

— i.e. whether a railroad’ s negligence played any part, even the slightest, in bringing about the injury

— makes inapplicable the expert admissibility standards expressed in cases like E.I. DuPont de Nemours & Co. v. Robinson , 923 S.W.2d 549 (Tex. 1995) and Merrell Dow Pharmaceuticals, Inc. v. Havner , 953 S.W.2d 706 (Tex. 1997). The Court answered this question in the aff irmative, holding that FELA ’ s lower causation standard contemplates a lower admi ssibility threshold for causation evidence. An immediate appeal of this interlocutory Order would materially advance the ultimate termination of th is litigation because the Court’ s ruling allows the jury to consider causation evidence that would otherwise be excluded. The answer to this question, therefore, determines whether this case may be resolved without a trial on the merits. D. BNSF’S P ETITION FOR P ERMISSIVE A PPEAL AND B ACA ’ S R ESPONSE BNSF subsequently filed a petition for permissive appeal. In its petition, BNSF stated that the sole issue it was presenting for appeal was “ [w] hether FELA ’s lower causation standard

— i.e., whether a railroad’s negligence played any part, even the slightest, in bringing about the injury

— makes Texas’s expert admiss ibility standards inapplicable? ”13

At our request, Baca filed a response to BNSF’s petition. In his response, Baca stated that he agreed that the trial court’s order met the jurisdictional standard for a permissive appeal set forth in civil practice and r emedies code section § 51.014(d) , but he stated that he disagreed “ with the way in which the issue has been framed by both the trial court and BNSF ” because the way the trial court and BNSF had framed the issue for permissive review did not “ fully
encompas s the nature of the legal issues which are implicated by this appeal. ” Baca suggested his own phrasing of the question presented for review, a phrasing that he believed more accurately reflected the issue presented in this appeal: “ Whether the FELA ’s lowe r causation standard

— i.e. whether a railroad’s negligence played any part, even the slightest, in bringing about the injury

— may be modified by applying state expert admissibility rules to impose a higher causation standard. ” Baca then concluded by stating he did not “ oppose interlocutory review of the issue raised by this appeal” but that he requested that we “ grant review on the issue as [he had] mor e accurately presented it” in his
response. We then granted BNSF’s petition for permissive appeal. See Ba ca , 2017 WL 2570826 , at *1. I I I
. JURISDICTION In conjunction with filing his appellee’s brief, Baca filed a motion to dismiss, challenging this court’s jurisdiction over this appeal. Baca argues we lack jurisdiction for two reasons. First, he argues th at this appeal no longer involves a14

controlling question of law as to which there is a substantial ground for difference of opinion. See Tex. Civ. Prac. & Rem. Code § 51.014(d). And second, Baca contends this court has already concluded that it is not pr oper to review by permissive, interlocutory appeal a trial court’s decision whether to exclude an expert’s opinion as insufficiently reliable under Robinson

. See Blakenergy, Ltd. v. Oncor Elec. Delivery Co. , No. 02

- 14

- 00241

- CV, 2014 WL 4771736, at *1 (Tex

. App.

— Fort Worth Sept. 25, 2015, no pet.) (mem. op.). Neither of these arguments is persuasive. A. A PPLICABLE L AW We have jurisdiction to consider a permissive , interlocutory appeal by virtue of a statutoril y authorized exception to the general rule tha t we have jurisdiction over final judgments only. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(d); Eagle Gun Range, Inc. v. Bancalari , 495 S.W.3d 887, 889 (Tex. App.

— Fort Worth 2016, no pet.). Under that exception, w e may permit an appeal from an interl ocutory order that otherwise would not be immediately appealable if (1) the order involves a controlling question of law as to which there is a substantial ground for difference of opinion and (2) an immediate appeal from the order will materially advance the ultimate termination of the litigation. Tex. Civ. Prac. & Rem. Code Ann. § 51.014(d), (f).15

B
. A C ONTROLLING Q UESTION OF L AW R ESOLVED BY THE T RIAL C OURT R EMAINS A T I SSUE We first address Baca’s argument that this appeal no longer involves a
contro lling question of law. As Baca reads it, the trial court’s order involves only a very narrow controlling question of law: whether one specific Texas case

— Havner

— applies to a FELA claim. He gets to this reading by stating that he has conceded Robinson ap plies to a FELA claim. Baca maintains that having so conceded, there is no “substantial disagreement” between the parties as to whether Robinson applies. Therefore, argues Baca, since Havner is the only other case referenced in the trial court’s order, t he trial court’s order only involves the narrow controlling question of law of whether Havner applies to a FELA claim. With that premise in place, Baca turns to BNSF’s appellant’s brief, contending that BNSF did not argue in its brief that Havner applies to a FELA claim; it only argued that Robinson does. Baca reasons that because he agrees Robinson applies to a FELA claim and BNSF has not argued that Havner does, this appeal no longer involves a controlling question of law. Baca’s argument is based ent irely on the assumption that the controlling question of law involved in the trial court’s order is the narrow question of whether two specific Texas cases

— Robinson and Havner

— apply in a FELA case. But that is not so. From the face of the trial court’s o rder and the record, it is clear that the controlling question of law involved in the trial court’s order is not the narrow question of whether Robinson and Havner , exclusively , are applicable16

in determining the admissibility of an expert’s causation opini on in a FELA case

. Rather, the controlling question of law involved in the trial court’s order is the broad question of whether FELA ’s lower causation standard also lowers the admissibility threshold of causation evidence in a FELA case such that the expe rt admissibility standards expressed in cases like Robinson and Havner are inapplicable in determining the admissibility of an expert’s causation opinion in a FELA case. 1. The Plain Language of the Order We s tart with the language of the trial court’s or der. In relevant part, the order states: The controlling question of law as to which there is substantial ground for difference of opinion is whether the [FELA’s] lower causation standard

— i.e. whether a railroad’s negligence played any part, even the slig htest, in bringing about the injury

— makes inapplicable the expert admissibility standards expressed in cases like [ Robinson ] and [ Havner ]. The Court answered this question in the affirmative, holding that FELA ’s lower causation standard contemplates a low er admissibility threshold for causation evidence. The trial court’s order does not say that the controlling question of law involved in its order was whether FELA ’s causation standard makes Robinson and Havner inapplicable in a FELA case. Nor does the o rder say that the controlling question of law wa s whether FELA ’s causation standard makes the admissibility standards expressed in Robinson and Havner inapplicable in a FELA case. Both of these formulations would have limited the controlling question of l aw involved in the trial17

court’s order to a question of the applicability of Robinson and Havner , specifically. Yet the trial court’s order used neither formulation. Instead, the language in the trial court’s order states the controlling question of law a s “whether the [FELA’s] lower causation standard . . . makes inapplicable the expert admissibility standards expressed in cases like [ Robinson ] and [ Havner ].” ( Emphasis added ) . The phrase “expressed in cases like [ Robinson ] and [ Havner ]” is a modifier tha t clarifies the phrase prece ding it

— “expert admissibility standards.” Examining the language of th at modifying phrase, the placement of the words “case s like” before “[ Robinson ] and [ Havner ]” make s plain that the controlling question of law in the trial c ourt’s order is not limited to whether Robinson and Havner , specifically, are applicable. To read the order as involving only the applicability of Robinson and Havner , as Baca does, is to entirely erase the words “cases like” from the trial court’s order. So the order involves the applicability of “the expert admissibility standards expressed in cases like Robinson and Havner , ” not the applicability of Robinson and Havner exclusively

. This construction is confirmed by another portion of the trial court’s order that Baca’s reading would also erase. After the portion stating the controlling question of law, the very next sentence in the trial court’s order states, “The Court answered this question in the affirmative, holding that FELA ’s lower causation stan dard contemplates a lower admissibility threshold for causation evidence.” In this sentence, the trial court explai ns that it had decided that18

[FELA’s] “ lower causation standard . . . makes inapplicable the expert admissibility standards expressed in case s like [ Robinson ] and [ Havner ].” And it explained the sole reason why it had made that decision w as its legal conclusion that “FELA’s lower causation standard contemplates a lower admissibility threshold for causation evidence.” That language confirms th e trial court had broadly ruled that FELA ’s re laxed causation standard lowers Texas’s admissibility threshold for causation evidence in a FELA case. Thus, when all of the pertinent language in the trial court’s order is given effect, it is clear that the c ontrolling question of law on which the trial court ruled is broader than the narrow question only of whether Robinson and Havner apply in a FELA case. Rather, the trial c ourt’s ruling was as follows: because FELA’s lower causation standard contemplates a lower admissibility threshold for causation evidence, FELA’s lower causation standard makes inapplicable the expert admissibility standards expressed in cases like Robinson and Havner

. 2. The Record That the controlling question of law involved in the trial court’s order is not limited to the narrow question of whether Robinson and Havner , specifically, apply in a FELA case is also confirmed by the record. In its motion to exclude, BNSF anticipated Baca would argue that “in light of the causation standa rd under FELA , the standards for reliability and admissibility of expert causation opinions should be relaxed.” BNSF maintained19

that FELA’s relaxed causation standard does not relax the standards for admissibility of expert causation opinions in a FELA ca se. Baca indeed made the argument BNSF anticipated he would. In Section V, Paragraph D of his response to BNSF’s motion, Baca argued that “[i]t is well established that FELA ’s featherweight causation standard should significantly influence a determinati on of the admissibility of an expert’s causation testimony.” 7 In Section V, Paragraph E of his response, Baca argued that “[t]he remedial nature of FELA has a significant effect on the admissibility of expert testimony.” He pointed to Hines as “the leadi ng case on point,” stating that the Hines court had held that “ FELA[’s] relaxed standard of causation also relaxes the threshold of admissibility for the reception of expert testimony.” Baca argued that because of this relaxed admissibility standard, (1) Havner is inapplicable in a FELA case and (2) Robinson “should be applied with a more lenient standard” in a FELA

case. 8

7 For this “well established” proposition, Baca cited only one case: Hines v. Consol idated Rail Corp. , 926 F.2d 262, 269 (3 d Cir. 1991).

8 As part of his argument for why this case no longer involves a controlling question of law , Baca argues that he agrees that Robinson applies to his FELA claim and that, therefore, there is no substantial disagreement between the parties as to the applicability of Rob inson in this case. Not so. It is patently clear that the parties did disagree as to the applicability of Robinson to Dr. Schonfeld’s causation opinion

. As we have noted, BNSF argued that Robinson ’s admissibility standards apply the same in a FELA case as they do in a non

- FELA case, whereas Baca argued that those standards apply differently

— that is, “more lenient[ly]”

— in a FELA case than in a non

- FELA case.20

The trial court considered BNSF’s motion by submission. Before signing the order denying the motion, the trial court first sent a le tter ruling to the parties informing them of its decision. In the letter, the trial court explained that it had decided to deny the motion and explained its reason for doing so, stating that it “went with [Baca] on the issue of the application of FELA cau sation standards
to

. . . Dr. Schonfeld’s opinion on causation.” The trial court referred the parties to specific portions of Baca’s response to BNSF’s motion, telling them to “[s]ee generally paragraph[s] D & E” of the response. The trial court addition ally stated that it “believe[d] this to be a ‘controlling question of law as to which there is substantial ground for difference of opinion.’” Thus, the record confirms that the parties disagreed over t he broad question of whether FELA’s lower causation standard lowers the threshold of admissibility for expert causation testimony; that the trial court ruled in the affirmative on that broad question; and that the trial court based its decision to deny BNSF’s motion solely upon its resolution of that broad question. Given the foregoing , we disagree with Baca’s argument that this appeal no longer involves a controlling question of law , as well as with his argument that BNSF ’s appellant’s brief presents a controlling question of law that differs from the one t he parties presented to the trial court and which the trial court resolved

.

C. B ACA ’ S R ELIANCE ON B LAKENERGY Baca also notes that BNSF has argued only that Robinson applies to his FELA claim ; it has not argued that Dr. Schonfeld’s opinion fails to meet21

Ro binson ’s admissibility standards

. But he argues that , to the extent BNSF’s appeal can be construed as presenting the issue of whether Dr. Schonfeld’s opinion satisfies Robinson ’s admissibility standards, this court has already determined it is not appropr iate to review by permissive appeal a “plain vanilla expert challenge under Robinson ”

— that is, a trial court’s determination of whether an expert’s testimony satisfies Robinson ’s admissibility standards. See Blakenergy

, 2014 WL 4771736, at *1. He asks us to follow our precedent in Blakenergy and dismiss this appeal. Assuming Baca’s characterization of our decision in Blake nergy is correct,

w e need not address this argument because this appeal does not present the “plain vanilla expert challenge” of whet her Dr. Schonfeld’s opinion satisfies Robinson ’s admissibility requirements. 9 Rather, the trial court denied BNSF’s motion to exclude based on its legal conclusion that because FELA’s featherweight standard of causation “ contemplates a lower admissibility threshold for causation evidence , ” state procedural standards governing the admissibility of expert testimony “expressed in cases like [ Robinson ] and [ Havner ] ” are inapplicable in a FELA case. Thus, the sole issue in this appeal is a pu re question of law : whether FELA’s causation standard lowers the admissibility threshold for causation evidence in FELA cases.

9 Because we need not address this argument, we express no opinion as to the merit of Baca’s char acterization of this court’s denial of the petition for permissive appeal in Blakenergy

. See id

.22

Because we are unpersuaded by Baca’s argument s that this appeal no longer involves a controlling question of law, we deny his motion to dismiss. IV
. THE TRIAL COURT’S ER RONEOUS LEGAL CONCLU SION WAS

AN ABUSE OF DISCRETI ON In its sole issue, BNSF argues the trial court abused its discretion by concluding that in a FELA case, FELA ’s featherweight causation standard lowers our state’s standards go verning the admissibility of expert testimony

. A. S TANDARD OF R EVIEW Even in a FELA case, a trial court’s evidentiary rulings, including its decision whether to ad mit expert testimony , is subject to an abuse

- of

- discretion standard of review

. See Abraha m , 233 S.W.3d at 17; Mo. Pac. R. R. v. Navarro , 90 S.W.3d 747, 750 (Tex. App.

— San Antonio 2002, no pet.). Here, the trial court based it s decision to deny BNSF’s motion to exclude solely on its determination of a pure question of law. A trial court has no discretion to make an erroneous legal conclusion even in an unsettled area of law

. In re United Scaffolding, Inc. , 301 S.W.3d 661, 663 (Tex. 2010) (orig. proceeding) ; In re Mo. Pac. R.R. , 998 S.W.2d 212, 216 (Tex. 1999)

. We review a trial court’ s determ ination of a pure question of law de novo , affording no deference to the trial court’s conclusion. See RSI Int’l, Inc. v. CTC Transp., Inc. , 291 S.W.3d 104 , 107 (Tex. App.

— Fort Worth 2009, no pet.).23 B
. A PPLICABLE L AW As a general rule, w hen a plaintiff brings a FELA claim in state court, the court applies federal substantive law and state procedural law. See Dickerson , 470 U.S. at 411 ; Oney , 380 S.W.3d at 800. But a state procedural rule may not interfere with, lessen, or destroy any of the substantiv e rights afforded to the plaintiff under FELA

. See Brown , 338 U.S. at 298

– 99 ; Scott v. Atchison, Topeka & Santa Fe Ry. , 572 S.W.2d 273, 281 (Tex. 1978) (op. on reh’g); Oney , 3 80 S.W.3d at 800. A ny state procedural rule that does so must yield. See Brown , 338 U.S. at 298

– 99 ; Scott , 572 S.W.2d at 281; Oney , 3 80 S.W.3d at
799

– 800

. C. T EXAS ’ S P ROCEDURAL S TANDARDS A PPLY I n accordance with the general rule that state courts apply state procedural law in cases brought under a federal statute in state court , Te xas court s apply state rules of evidence when determining the admissibility of expert testimony in FELA case s

. See Nichols , 379 S.W.3d at 382 (“ Although [appellees’] claim is pursuant to [ FELA ] , the trial court must follow state procedure in determining t he reliability of expert testimony. ”) ; Abraham , 233 S.W.3d at 18 (“ Despite the fact that appellants assert a claim under the [FELA] , the trial court must follow state procedure in determining the reliability of expert testimony. ”) ; Navarro , 90 S.W.3d
at 75 4

– 59 ( applying state procedural rules in determining the admissibility of expert testimony in a FELA case)

. Accordingly, as relevant here, in a FELA case brought in state court, expert testimony must be reliable to be admissible. See24

Nichols , 379 S.W.3d at 382 ( citing Robinson , 923 S.W.2d at 556). This general proposition is not in dispute here. In the trial court, Baca argued that FELA ’s featherweight causation standard relaxes Texas procedural standard s for determining the admissibility of expert tes timony regarding causation in a FELA case. The trial court agreed and based its decision to deny BNSF’s motion to exclude solely on that legal conclusion

. BNSF argues that t his conclusion is contrary to what the courts in this state, the federal courts, and the courts in many other states have recognized : the standard of causation under FELA and the standards for admission of expert testimony under the applicable rules of evidence are distinct issues that do not affect one another. Thus, BNSF argues, th e trial court abused its discretion by concluding that FELA ’s featherweight causation standard relaxes our state’s procedural standards for admissibility of expert testimony in a FELA

case. 1. Texas Authorities BNSF is correct that two of our sister cou rts have squarely held that FELA ’s featherweight causation standard does not lower the threshold for admissibility of expert testimony in a FELA case

. The first to do so was the Fourth Court of Appeals in Navarro

. See 90 S.W.3d at 751. That case involve d a FELA claim in which the plaintiff alleged that h er exposure to diesel exhaust during her employment with the defendant railroad caused h er to develop bone

marrow cancer. Id. at 749

. On appeal, the ra ilroad argued that the testimony of25

the plaintiff’s causation experts should have been excluded because the testimony was scientifically unreliable. Id. at 749. In addressing that argument,
t he court acknowledged FELA ’s lower burden of causation but noted that lower burden had “ not been generally applied to the ad missibility of expert testimony ” in a FELA case and that “ the Daubert standard of admissibility of expert evidence [in a FELA case] ex tends to each step in an expert’ s analysis all the way through the step that connects the work of the expert to the particular case.” 10 Id. at 751 (internal quotation omitted). And in analyzing whether the challenged expert causation testimony was unreliable, the court applied Texas’ s standards. See id.
at 754

– 59. The Fourteenth Court of Appeals followed suit in A braham

. See
233 S.W.3d at 1 7

– 20. That was a FELA case in which the plaintiffs alleged that their exposure to creosote during their employment with the defendant railroad caused them to suffer diseases of the throat, lungs, and skin, including cancer. Id

. at 16. T he defendant railroad challenged the plaintiff ’ s expert’s causation opinion on the ground that it was not scientifically reliable. Id. The court applied state procedural standards in determining the reliability of the challenged expert testimo ny. See id. at 18 (citing Robinson , 923 S.W.3d at 565). I t agreed that the standard of causation under FELA and the standards of expert testimony under the rules of evidence are distinct issues and do not affect one another. See id. at

10 The court noted that our supreme court adopted Daubert in Robinson

. See id. at 750.26

19

– 20. And, cons equently, it agreed that FELA ’s featherweight causation standard did not relax our state’s procedural standards governing the admissibility of expert testimony such that courts must admit expert testimony in FELA cases that would be in admissible in other c ontexts. See id. We also find the supreme court’s decision in In re GlobalSantaFe Corp. , 275 S.W.3d 477 (Tex. 2009) (orig. proceeding) , instructive to our analysis. That case involved a claim under the Jones Act, which provides for a cause of action agai nst the employer of a seaman who sustains an injury or death in the course of his employment. See 46 U.S.C.A. § 30104 (West 2007 ) ; GlobalSantaFe , 275 S.W.3d at 479

– 80 , 480 n.1

. The Jones Act expressly incorporates FELA and the case law developing that st atute

. See Ellis , 971 S.W.2d at 406 ; see also 46 U.S.C.A. § 30104

. Thus, like FELA , the Jones Act establishes a featherweight standard of causation. See Ellis , 971 S.W.2d at 406. And courts therefore often look to caselaw applying FELA when analyzing c laims under the Jones Act. See Wills v. Amerada Hess Corp. , 379 F.3d 32, 46

– 47 , 47 n.9 (2d Cir. 2004) ( looking to FELA cases when analyzing whether the Jones Act’s relaxed standard of causation lower ed the standards for admissibility of expert testimony u nder the rules of evidence ) ; see also Lies v. Farrell Lines, Inc. , 641 F.2d 765, 770 (9th Cir. 1981) ( noting that b ecause the Jones Act expressly incorporates FELA and case law developing that statute , the court could

“ appropriately look to FELA cases to t est the sufficiency of the allegations and proof in this Jones Act cl aim”).27

In Global SantaFe , the supreme court considered whether the Jones Act preempted certain provisions of Chapter 90 of the civil practice and remedies code , including section 90.004 , w hich requires a plaintiff in silica cases to serve a detailed expert report on each defendant

. See 275 S.W.3d at 479

– 80 ; see also Tex. Civ. Prac. & Rem. Code Ann. § 90.004 (West 2017 )

. This provision, the court said, “ endeavors to assure that claims are not brought and pursued unless they are supported by reliable expert evaluations of the claimant. ” GlobalSantaFe , 275 S.W.3d at 482. After discussing the general principles of preemption in Jones Act cases , the court concluded that “[t] he requirements

em bedded in Chapter 90 to assure reliable expert confirmation of silica

- related diseases are not preempted by the Jones Act

. ” 11 See id. at 486. In explaining its conclusion, the court discussed the standards governing the admissibility of expert testimony

. See id. at 486

– 87

. In particular, i t noted that federal caselaw ha s developed standards for admission of expert testimony that focus on the trial court ’ s role in determining the reliability of such testimony and that Texas caselaw, drawing heavily from federal jurisprudence, had developed similar standards. See id. It then discussed the issue of whether the Jones Act’s featherweight causation standard affected the application of state procedural rule s governing the admission of expert testimony. The c ourt said,

11 The court co ncluded , however, that the Jones Act preempts section 90 .004(b)(2) because that provision “require s claimants in some cases to establi sh a minimal level of impairment,” which conflicts with the Jones Act

. See id. at 483, 489

.28

To the extent that Jones Act jurisprudence recognizes a special standard for proving causation, federal cases have held that this causation standard does not exempt Jones Act cases from the general rules for admission of expert testimony. We se e no basis for holding that Texas law generally governing the admission of expert testimony, which draws so heavily from federal law, is preempted by the Jones Act. Id. (citations omitted). Thus, in GlobalSantaFe , the supreme court expressed disapproval of the notion that a featherweight causation standard alters the applicability of Texas law generally governing the admission of expert testimony.
2
. Federal and State Authorities The decisions in Navarro , Abraham , and GlobalSantaFe are in line with the

o verwhelming weight of authority in the federal courts, as well as the courts in other states. As BNSF has pointed out in its brief, several federal authorities have held that a featherweight causation standard

— whether under FELA or the Jones Act

— does not relax the threshold of admissibility for expert testimony. See , e.g. , Wills , 379 F.3d at 47 ( noting that “ the standards for determining the reliability and credibility of expert testimony are not altered merely because the burden of proof [under the Jones Act] is relaxed” ); Claar v. Burlington N. R.R. , 29 F.3d 499, 50 3 (9th Cir. 1994) (“ The standard of causation under FELA and the standards for admission of expert testimony under the Federal Rules of Evidence are distinct issues and do not affect one anoth er. ”) ; see also Taylor v. Consol

. Rail Corp. , No. 96

- 3579, 1997 WL 321142, at * 6

– 7 (6th Cir. June 11, 1997) (unpublished table decision ) ( holding that the typical standards for determining the admissibility of expert testimony “are not modified by the rela xed standard of29

proof in FELA cases ” ) ; Cantrell v. BNSF Ry. Co. , No. Civ 12

- 0129 , 2013 WL 8632378, at * 4 (D.N.M. June 28, 2013) ( noting that the relaxed causation standard under FELA and the standard for admission of expert testimony are distinct issues th at do not affect one another) ; Clements v. CSX Transp., Inc. , No. 3:09

- cv - 122

- TCB, 2011 WL 13136959, at * 3 (N.D. Ga. Dec. 13, 2011) (noting that if a plaintiff in a FELA case chooses to introduce expert testimony, the trial court must apply the same admiss ibility analysis that applies in any other case) , amended in part on other grounds , 2012 WL 12897089 (N.D. Ga. Jan. 9, 2012)

. In addition, as BNSF observed in its brief, the courts in several states have concluded that FELA ’s relaxed burden of proof does not a lter the applicability of their state’s procedural standards governing the admissibility of expert testimony

. See , e.g. , Smith v. CSX Transp., Inc. , 806 S.E.2d 890, 893

– 9 4 ( Ga. Ct. App. 2017) ; Smart v. BNSF Ry. Co. , 369 P.3d 966, 971

– 72 (Kan. Ct. App . 2016) ; see also Russel l v. Ill

. Cent. R.R. , No. W2013

- 02453

- COA

- R3

- CV , 2015 WL 4039982, at * 2

– 3 ( Tenn. Ct. App. June 30, 2015) (applying state procedural rules in determining admissibility of expert testimony in FELA case) ; McNeel v. Union Pac. R.R. , 753 N.W.2d 321, 32 8

– 30 (Neb. 2008) (applying s tate procedural standards governing admissibility of expert testimony in a FELA case in the same manner as in other cases. )

. Thus, in addition to the fact that several Texas courts have concluded that a relaxed st andard of causation does not relax our state’s procedural standards governing the admissibility of expert testimony, there is a broad range of30

authority from the federal court s and courts in other states holding that FELA ’s lower causation burden does not alter the applicable procedural standards governing the admissibility of expert testimony. 3. Baca’s Auth orities In his appellee’s brief, Baca did not address the merits of the question presented in this permissive appeal or the significant number of auth orities BNSF presented in support of its position on that question. Rather, he reurged some of the arguments he made in his motion to dismiss this permissive appeal

. 12 Our analysis above concerning those arguments is equally applicable here, and we need n ot restate it . We note, however, that in his response to BNSF’s motion in the trial court, Baca cited two cases that he argued supported his position that FELA ’s relaxed causation standard relaxed the threshold for admissibility of expert testimony in thi s FELA case. We briefly address tho se cases. In his response in the trial court, Baca argued that “[i]t is well established that FELA ’s featherweight causation standard should significantly influence a determination of the admissibility of an expert’s cau sation testimony.” For this proposition, he cited only one case : Hines v. Consolidated Rail Corp. , 926 F.2d 262 (3rd Cir. 1991). Indeed, t he court in that case concluded that the causation

12 That is, in his appellee’s brief, Baca argues that because he agrees that Robinson a pplies to his claim, and because BNSF has not specifically argued that Havner and Borg

- Warner apply, “there is nothing further for this [c]ourt to consider[,] and this [c]ourt should affirm the trial court’s ruling on BNSF’s motion to exclude the expert op inions of Dr. Schonfeld.”31

standard under FELA can significantly influence a determination of the admissibility of expert testimony. Id. at 269. However, as our sister court observed in Abraham , the Hines decision predates the Supreme Court’s seminal decision in Daubert

, which articulated standards for assessing the reliability of expert testi mony

. Abraham , 233 S.W

. 3d at 18. And of course, o ur supreme court subsequently adopted Daubert

. See Robinson , 923 S.W.2d at 556

– 57

. As the cases we have discussed above demonstrate, s ince Daubert , Texas, federal, and sister

- state courts have consistent ly applied in FELA cases the same expert
testimony admissibility standards they apply in non - FELA cases. We thus find Hines unpersuasive. See Wills , 379 F.3d at 47 (declining to follow Hines and holding that “ Daubert

’s standards for determining the admis sibility of expert testimony apply rega rdless of whether the plaintiff’ s burden to prove causation is reduced ”) ; Abraham , 233 S.W.3d at 20 ( concluding Hines was unpersuasive because it was decided before Daubert and Robinson ). In his response in the trial court, Baca also argued that the Third C ourt’s decision in Navarro and the Fourteenth Court’s decision in Abraham , both of which concluded that FELA ’s relaxed causation burden does not relax the standards for admissibility of expert testimony , are “no long er the law in a FELA case” after the Supreme Court’s decision in McBride

. See McBride , 564 U.S. 685; Abraham , 233 S.W.3d at 19

– 20; Navarro , 90 S.W.3d 7 50

– 51

. But McBride

was a jury

- charge case concerning whether the trial court had erred by failing to in clude a proximate

- cause instruction in the jury charge. See 564 U.S. at 689

–32

90. The Court concluded it had not , holding that in FELA cases, juries “ are properly instructed that a defendant railroad ‘ caused or contributed to ’ a railroad worker ’ s injury ‘ i f [the railroad ’ s] negligence played a part

— no matter how small

— in bringing about the injury. ’ ” Id. at 705. Thus, McBride did not deal with the admissibility of expe rt testimony in FELA cases. And even after McBride , courts have continued to recognize a distinction between FELA ’s causation standard and the procedural standards governing the admissibility of expert testimony. See Whalen v. CSX Transp., Inc. , No. 13 Civ. 3784, 2016 WL 5723877, at *17 n.17 (S.D.N.Y. Sept. 29, 2016); Cantrell , 2013 WL 86323 78, at *4; Clements , 2011 WL 13136959, at *3 ; Smith , 806 S.E.2d at 893

– 94 ; Farley v. BNSF Ry. Co. , No. 112,872, 2016 WL 1169426, at *7 ( Kan. Ct. App. Mar. 25, 2016) . We are th erefore un persuaded that McBride upended this well

established distinction

.

4. Texas’s Admissibility Standards Apply We a gree with the reasoning of the courts that have concluded that the standard of causation under FELA and the standards for admission of expert testimony under the applicable rules of evidence are distinct issues tha t do not affect one another and that, consequently, FELA ’s featherweight causation standard does not require a Texas trial court to admit expert testimony in a FELA

case that would be inadmissible in a non

- FELA case. See Claar , 29 F.3d at 503

– 04 ; Abraham , 233 S.W.3d at 19

– 20. We therefore hold that FELA ’s featherweight causation standard does not render inapplicable in FELA cases33

our state procedural law governing the admissibility of expert testimony. The trial
court abused its discretion by concluding to the contrary. See United Scaffolding , 301 S.W.3d at 663 (“[A] n erroneous legal conclusion is an abuse of discretion, even if it may not have been clearly erroneous when made. ”). W e sustain BNSF’s sole issue. V
. CONCLUSION Having concluded that this appeal continues to involve a controlling question of law as to which there is a substantial ground for difference of opinion , we deny Baca’s motion to dismiss. And h aving sustained BNSF’s sole issue, we reverse the trial court’s order denying BNSF’s mot ion to exclude and remand this case for further proceedings. See Tex. R. App. P. 43.2( d).

/s/ Lee Gabriel LEE GABRIEL JUSTICE PANEL: WALKER, GABRIEL, and KERR, JJ. DELIVERED: March 29, 2018