Court: Diesel-cancer link evidence should have been heard

Friday, February 27, 2009

OMAHA, Neb. (AP) -- The state Supreme Court says a lower court should not have excluded testimony that found a Nebraska man's cancer was likely caused by exposure to railroad diesel exhaust.

On Friday, the high court released its decision reversing a Douglas County District Court ruling, later upheld by the Nebraska Court of Appeals, granting judgment to BNSF Railway.

The Fort Worth, Texas-based railroad had been sued by a former employee, Bradley King of McCook, Neb., who died in 2002 of multiple myeloma, a cancer of the plasma cells. King's wife is now named as the plaintiff in the lawsuit.

King worked for BNSF for more than 28 years, starting in 1972 at the age of 20. King worked a number of jobs for the railroad in that time, but the lawsuit said that it was his time working as a brakeman that exposed him to the highest amounts of diesel exhaust.

King said his exposure to the exhaust fumes often caused him to experience headaches and nausea and sometimes caused his tongue to feel thick.

An expert witness for King, Dr. Arthur Frank, blamed King's cancer on exposure to diesel exhaust, saying in his 30 years as a doctor, he had never seen a history of such high exposure to diesel exhaust as King had experienced.

In his conclusion, Frank said scientific evidence supports the belief that benzene -- a chemical found in diesel exhaust -- can cause multiple myeloma. He also testified that a number of studies pointed to a relationship between diesel exhaust and cancer, but acknowledged he had not conducted his own research and could not point to any studies explicitly stating that diesel exhaust causes multiple myeloma.

Because Frank could not point to a specific study, the lower court dismissed Frank's testimony and ruled in favor of BNSF.

The Supreme Court determined that the district court erred in that decision, noting that reasonable differences in scientific evaluation should not exclude an expert witness's opinion.

"While the trial court acts as the evidentiary gatekeeper, it is not a goalkeeper," the high court wrote.

The Supreme Court sent the case back to district court to be heard again.

An attorney for King, Richard Dinsmore of Omaha, hailed the decision.

"We're extremely happy ... that a jury will get to hear what Bradley went through in his lifetime," Dinsmore said. "It really was a resounding victory for the jury system. The jury knows what is wheat and what is chaff."

An attorney for BNSF, Nichole Bogen of Lincoln, did not immediately returned a phone call Friday from The Associated Press.

Nebraska Supreme Court ruling.

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