Recht

Turner

WHEELING – Circuit Judge Arthur Recht has excluded a physician from testifying that CSX Transportation damaged the brains of seven former employees.

"This amounts to no methodology at all," Recht wrote in a May 19 order rejecting Douglas Linz as an expert witness for Pittsburgh lawyers John McTiernan and Mark Wade.

Recht wrote that although he expressed an interest in testimony from a neurologist, plaintiffs presented an expert in occupational medicine.

"Their lack of neurological evidence to support what they allege is a brain injury syndrome begs the question of whether any reliable evidence for this syndrome exists," he wrote.

He also excluded a professional journal article connecting solvent exposure among railroad workers to tissue losses in the corpus callosum area of their brains.

Some of the workers in the study happened to be litigants.

"The study results are questionable due to the significant selection bias in the choice of study subjects," Recht wrote.

CSX discovered this flaw and others in the study only after overcoming interference from West Virginia Attorney General Darrell McGraw.

In 2006, McGraw sided with the Pittsburgh lawyers and moved to quash a subpoena seeking data behind the article.

Recht denied McGraw's motion.

CSX hired neurologist Kirk Frey to study the data, and he concluded that it provided no evidence of statistically significant tissue loss.

At a hearing last year, he said that if the corpus callosum shrank, fluid would increase around the brain to compensate for the loss. He said he found no such change.

Although plaintiffs alleged memory loss, Frey countered that the corpus callosum is not involved in memory function.

He said researchers compared groups of individuals to each other but did not measure changes in individual brains.

Recht watched videotaped testimony from Linz in January, and then he made up his mind.

In his order, he wrote that the journal article generated a hypothesis rather than testing one.

"In other words, the study was not designed in such a way as to be capable of proving cause and effect," he wrote.

Likewise he rejected Linz's opinions, writing that he relied on worker reports and never saw baseline testing.

"Dr. Linz admits that it may be problematic to rely on the memories of patients with memory complaints," Recht wrote.

He wrote that Linz's methods "cannot rule out alternative causes, or even establish exposure as a cause without already being told that it has occurred."

He wrote that Linz's theory and conclusion couldn't be tested in a reproducible way or with a known rate of error.

"His method is not falsifiable," Recht wrote.

Plaintiffs in the Ohio County suits are John Childers, Charles Clemons, Marvin Ferrell, Phillip Knipp, Jack Little, John Schneider and Kenneth Tschop Jr.

James Turner of Huddleston Bolen in Huntington represents CSX.

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