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SCHMALTZ v. NORFOLK & WESTERN RY. CO.

March 6, 1995

ARTHUR E. SCHMALTZ, Plaintiff,
v.
NORFOLK & WESTERN RAILWAY COMPANY, a corporation, Defendant.



The opinion of the court was delivered by: ELAINE E. BUCKLO

 Before the Court is defendant's motion to bar the expert testimony of Drs. Dunlap, Hessl, and Schonfeld pursuant to FED. R. EVID. 702. For the reasons stated herein, defendant's motion is granted.

 Facts

 Plaintiff, Arthur E. Schmaltz ("Mr. Schmaltz"), was employed by defendant, Norfolk & Western Railway Company ("N&W"), as a carman. On May 1, 1990, at approximately 7:00 p.m., N&W sprayed areas of the Calumet Yard with two herbicides, atrazine and tebuthiuron, pursuant to its vegetation control policy program. Mr. Schmaltz began his shift in the Calumet Yard on May 1, 1990 at 11:00 p.m., and worked until 7:00 a.m. on May 2, 1990. On the morning of May 2, 1990, Mr. Schmaltz began to experience respiratory irritation. On May 9, 1990, Mr. Schmaltz went to the emergency room at South Suburban Hospital complaining of burning in his throat and esophagus. On May 12, 1990, Mr. Schmaltz saw his own personal physician, Dr. Ann Marie Dunlap ("Dr. Dunlap"), who was unsure of the nature and cause of Mr. Schmaltz's condition and consequently referred him to Dr. Stephen Hessl ("Dr. Hessl").

 From July 25, 1990 to April 27, 1992, Mr. Schmaltz was treated by various doctors at the University of Illinois Hospital Occupational Medicine Clinic under the supervision of Dr. Hessl. On the basis of Mr. Schmaltz's description of his symptoms, physical examinations, and pulmonary function tests, Dr. Hessl's group diagnosed Mr. Schmaltz as having Reactive Airway Dysfunction Syndrome ("RADS"), an asthma-type respiratory syndrome which occurs after high-level irritant exposures. On three separate occasions since June 21, 1993, Mr. Schmaltz was examined by Dr. Alvin Schonfeld ("Dr. Schonfeld") at the Olympia Fields Osteopathic Medical Center. On the basis of these examinations, Dr. Schonfeld diagnosed Mr. Schmaltz as having RADS.

 On September 27, 1991, Mr. Schmaltz brought this action against N&W under the Federal Employers' Liability Act alleging that his condition was proximately caused by his exposure to the herbicides in the Calumet Yard. At trial, Mr. Schmaltz intends to introduce the expert testimony of Drs. Hessl and Schonfeld that exposure to either atrazine or tebuthiuron caused his present condition. N&W moves to bar the expert testimony of Drs. Dunlap, Hessl, and Schonfeld pursuant to FED. R. EVID. 702. *fn1"

 Analysis

 Under the Federal Rules of Evidence, "preliminary questions concerning . . . the admissibility of evidence shall be determined by the court." FED. R. EVID. 104(a); see also Bradley v. Brown, 42 F.3d 434, 436 (7th Cir. 1994) ("it is well established that issues related to expert opinion testimony are matters of law to be determined by the trial judge") (citations omitted). The proponent of the proffered expert testimony, i.e. Mr. Schmaltz in the present case, bears the burden of establishing its admissibility by a preponderance of proof. Bradley v. Brown, 852 F. Supp. 690, 697 (N.D. Ind.), aff'd., 42 F.3d 434 (7th Cir. 1994) (citation omitted); Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1316 (9th Cir. 1995) ("the party presenting the expert must show that the expert's findings are based on sound science . . ."). In determining whether Mr. Schmaltz has met his burden in this case, the Court is guided by FED. R. EVID. 702 and its construction by the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993).

 
FED. R. EVID. 702 provides:
 
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

 FED. R. EVID. 702. In construing this rule, the U.S. Supreme Court explained that "the adjective 'scientific' implies a grounding in the methods and procedures of science" and "the word 'knowledge' connotes more than subjective belief or unsupported speculation." Daubert v. Merrell Dow Pharmaceuticals, Inc., supra, 113 S. Ct. at 2795 (citation omitted). Accordingly, a trial judge faced with a proffer of expert scientific testimony

 
must determine at the outset . . . whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.

 Id. at 2796. The Seventh Circuit has interpreted Daubert to require a two-step inquiry:

 
Daubert first "directs the district court to determine whether the expert's testimony pertains to scientific knowledge. This task requires that the district court consider whether the testimony has been subjected to the scientific method; it must rule out 'subjective belief or unsupported speculation.'" Second, the district court must "determine whether the evidence or testimony assists the trier of fact in understanding the evidence or in determining a ...

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