The 2012 Paulsboro derailment / Credit: U.S.C.G. Lt. Cmdr. Timothy Holt

The U.S. Court of Appeals for the Third Circuit has affirmed a $500 damages award to a plaintiff who claimed he was exposed to toxic chemicals after the 2012 derailment of a freight train in Paulsboro.

Plaintiff Ronald Morris, in In Re: Paulsboro Derailment Cases, asserted on appeal that his medical monitoring and fear-of-cancer claims failed because a judge wrongly excluded his expert testimony.

But the Third Circuit on Wednesday found no abuse of discretion in rejection of the plaintiff's medical expert for failure to proffer a sufficiently reliable causation methodology under the standard set out in the U.S. Supreme Court's 1993 decision, Daubert v. Merrell Dow Pharmaceuticals.

The Daubert case has garnered renewed attention in New Jersey as the state Supreme Court earlier this month adopted it as the standard for expert testimony admissibility.

In Morris' case, the jury returned its $500 verdict after U.S. District Judge Robert Kugler of the District of New Jersey ordered an attorney for Morris to leave the courtroom for coaching a witness.

On Wednesday, the appeals court also rejected Consolidated Rail Corp.'s appellate argument, that Kugler should not have heard the plaintiff's negligence claim without expert testimony, and thus erred in denying the railroad's posttrial motion for judgment as a matter of law.

The appeal stems from a November 2012 derailment of a freight train at a bridge over Mantua Creek, which sent vinyl chloride into the air and water in the surrounding area. Conrail owned both the train and the swing-span bridge, which was built in 1917 and, at the time of the accident, was not in a locked position. An National Transportation Safety Board report said train crews had made 23 complaints in the year before the accident about the bridge's failure to close and lock.

Morris retained Dr. Omowunmi Osinubi for an opinion on whether he had developed any health problems from exposure to the chemical, and to determine if he needed medical monitoring. The doctor concluded that Morris faced an increased risk of liver cancer due to exposure to the vinyl chloride, and that he needed lifestyle coaching to reduce his risk.

Conrail moved to exclude Osinubi's testimony on the grounds that the methodology behind her cancer prediction was not sufficiently reliable under the Daubert standard. At the hearing, Osinubi did not attend, and plaintiffs' counsel did not rebut the methodological concerns raised by the two medical causation experts testifying for Conrail.

Kugler granted Conrail's motion to exclude Osinubi's report, finding that “no explanation [had been] offered whatsoever as to the process that [Dr. Osinubi] used to come to the opinions that she expresse[d] in her reports.”

The panel, consisting of Third Circuit Judges Michael Chagares and Thomas Vanaskie, and Susan Bolton, senior U.S. district judge for the District of Arizona, sitting by designation, found “substantial evidence in the record to support the District Court's determination that Dr. Osinubi failed to articulate a sufficiently reliable basis for establishing medical causation.”

That evidence included Osinubi's failure to consider 40 publications that addressed the question of vinyl chloride and its causal relationship to cancer, Vanaskie wrote.

The Third Circuit also rejected Conrail's contention on appeal that the district court erred by denying its motion for judgment as a matter of law. The panel cited Morris' testimony about “objectively identifiable symptoms from which a jury could infer causation even in the absence of an expert witness.” To prove that Conrail's negligence caused his emotional distress and pain and suffering, Morris testified at trial that he “tasted” the chemical while driving past the derailment scene, and soon experienced eye irritation, headaches and a burning sensation on his skin. His symptoms were “consistent with the stipulated facts as to what vinyl chloride can cause,” so that the jury could infer causation without expert testimony, the circuit court said.

During Morris' January 2016 trial, plaintiff lawyer Mark Cuker admitted telling a witness, Morris' wife, during a break in the proceedings that he would touch his eyeglasses if she began to ramble while on the witness stand, according to court documents. A paralegal from the defense team overheard the exchange and reported it to her boss, David D'Amico of Burns White in Pittsburgh. The jury ultimately found Conrail negligent and returned the $500 verdict after a motion for mistrial by Conrail was denied.

Ralph Wellington of Schnader Harrison Segal & Lewis in Philadelphia, representing Conrail, declined to comment on the ruling.

Cuker, of Cuker Law in Philadelphia, and David Cedar of Williams Cedar in Haddonfield, representing Morris, did not return calls about the case.