Golden v. Union Pacific RR. Co.

the sentences. We reverse, and remand to the Court of Appeals
with directions to reverse and remand the cause to the trial
court with directions to conduct an evidentiary hearing so that
the jury may make a finding regarding whether Alfredson’s
sexual assault conviction was an aggravated offense and, thus,
whether he is subject to lifetime community supervision.
In all other respects, the decision of the Court of Appeals
is affirmed.
A ffirmed in pArt, And in pArt reversed
And remAnded with directions.
LAvern L ouis G oLden, AppeLLAnt And cross -AppeLLee ,
v. union pAcific rAiLroAd compAny, A deLAwAre
corporAtion, AppeLLee And cross -AppeLLAnt.
804 N.W.2d 31
Filed October 7, 2011. 	No. S-10-596.
1. Summary Judgment. A court should grant summary judgment when the plead-
ings and evidence admitted show that no genuine issue exists regarding any mate-
rial fact or the ultimate inferences that may be drawn from those facts and that
the moving party is entitled to judgment as a matter of law.
2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in a light most favorable to the party against
whom the judgment is granted and gives such party the benefit of all reasonable
inferences deducible from the evidence.
3. Federal Acts: Railroads: Evidence. A Federal Employers’ Liability Act plaintiff
bears the burden of presenting evidence from which a jury could conclude the
existence of a probable or likely causal relationship, as opposed to a merely pos-
sible one.
4. Courts: Expert Witnesses. When a court is faced with a decision regarding the
admissibility of expert opinion evidence, the trial judge must assess whether the
scientific evidence presented provides a valid scientific connection to the perti-
nent inquiry as a precondition to admissibility.
Appeal 	from 	the 	District 	Court 	for 	Lincoln 	County:
John p. murphy, Judge. Reversed and remanded for further
proceedings.
Richard J. Dinsmore and Jayson D. Nelson, of Law Offices
of Richard J. Dinsmore, P.C., for appellant.
486 	282 NEbRASkA REPORtS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:43 AM CST

William M. Lamson, Jr., Anastasia Wagner, and Gage R.
Cobb, of Lamson, Dugan & Murray, L.L.P., for appellee.
heAvicAn, 	c.J., 	wriGht, 	connoLLy, 	G errArd, 	stephAn,
mccormAck, and miLLer-L ermAn, JJ.
heAvicAn, C.J.
INtRODUCtION
LaVern Louis Golden appeals from the decision of the
Lincoln County District Court, which granted to Union Pacific
Railroad Company (UP) its motion for summary judgment.
Primarily at issue in this case is the interpretation of our deci-
sion in McNeel v. Union Pacific RR. Co.1 Golden claims that he
presented sufficient evidence of a toxic exposure to overcome
UP’s motion for summary judgment. UP cross-appealed, alleg-
ing the district court erred by not addressing the foundational
issues raised in its motion in limine when it sought to exclude
the expert testimony of Golden’s family physician. We reverse
the decision of the district court and remand the cause for fur-
ther proceedings consistent with this opinion.
bACkGROUND
Golden claims there was a smoke incident on March 12,
2001, in the cab of the locomotive in which he was working as
an engineer. this incident is the same as the incident at issue
in McNeel.2 On that day, Golden and Lynn R. McNeel, the
conductor, left North Platte, Nebraska, at 6:15 a.m., en route
to Cheyenne, Wyoming. Near Sutherland, Nebraska, near mile
post 304, McNeel asked Golden whether he smelled an odor.
Golden initially stated that he did not smell anything, but did
notice an odor near mile post 312. Golden stated that the odor
was difficult to describe and that he had not smelled anything
like it before.
Around mile post 322, McNeel asked Golden to come over to
McNeel’s side of the cab. Golden stated that the odor was much
stronger on McNeel’s side of the locomotive. Golden called the
dispatcher, who instructed the men to open the windows and
1 McNeel v. Union Pacific RR. Co., 276 Neb. 143, 753 N.W.2d 321 (2008).
2 Id.
GOLDEN v. UNION PACIFIC RR. CO. 	487
Cite as 282 Neb. 486

doors. the men were also instructed to continue on to Ogallala,
Nebraska, where they stopped the locomotive. Golden stated
that he could “taste” the odor, that his eyes began to water, and
that he became dizzy and nauseated. McNeel and Golden were
taken by ambulance to the emergency room. Golden was given
oxygen and then released. Golden spoke to his primary care
physician, Dr. Janet bernard, by telephone 4 days later, but did
not go to her office until April 2.
After the first incident, Golden stated that he experienced
“head pain, dizziness, blackouts, movement in my eyes. I
had had headaches for three or four days in a row.” Golden
stated that he also experienced memory loss. In June 2001,
bernard referred Golden to a psychologist for his memory
loss. Golden stated the psychologist told him that it could take
up to 3 years for the memory loss to resolve itself, if it were
going to do so at all. Golden had both an MRI and a PEt
scan, and bernard told Golden that the scans showed some
brain damage. the record does not include any testimony
from the psychologist.
A second incident occurred on January 19, 2002. Golden
stated that the computer screen “just popped, blew up in the
cab. Filled the cab full of smoke.” Golden brought the train
to a stop immediately. Golden stated that the smoke smelled
like paint thinner and that he could taste the odor, his eyes
burned, he felt nauseated, and he had a headache. Golden
was taken to the hospital, given tylenol, and released. Golden
stated that the headaches continued for about 6 months after
that incident.
Golden claims he still suffers intermittent headaches, for
which his doctor is treating him. In his deposition, Golden
stated that his headaches are brought on by “any type of smoke
smell.” Golden stated that he used to have visual disturbances
with the headaches, but not any longer. Golden also stated
that he has memory loss and trouble remembering what he is
doing when running errands and that sometimes he has trouble
remembering the names of family members.
the affidavit of Golden’s expert, Leon Smith, indicated that
the locomotive Golden had been riding in was repaired on
March 15, 2001, 3 days after the first incident. Smith stated
488 	282 NEbRASkA REPORtS

that the repairs were consistent with an electrical failure and
that in his experience and training, electrical failures can
result in toxic fume exposures. Smith also stated that “these
types of electrical failures result in strong, toxic fumes to
which the locomotive crew is frequently exposed.” Smith also
stated that the repair records indicated the blower had been
replaced and that he had “reviewed and personally investi-
gated many reports and incidents where the blowers and cool-
ing systems vented fumes or vapors into the cabs of diesel
electric locomotives.”
Regarding the second incident, Smith testified in his affida-
vit that in addition to the computer monitor failure, there was
also a failure of the “‘DC-to-DC’ converter.” Smith stated that
“[w]hile such incidents are not as numerous as fume and vapor
exposure from electrical failures, investigative reports have
identified that a component failure of a monitor can result in
toxic fume exposure.”
In addition, bernard, a licensed family medicine practi-
tioner, testified in a deposition as to her treatment and diagno-
sis of Golden. Approximately 1 month after the first incident,
bernard saw Golden for complaints of dizziness, headaches,
and short-term memory problems. bernard stated that the
blood gas results after the first incident showed that Golden
had been having trouble breathing. bernard further stated that
the blood gases were in normal ranges for a venous sample
after the second incident. but later in her deposition, bernard
stated that the results from the second incident were abnormal.
bernard also stated that Golden’s lungs showed a mild hyper-
inflation after the second incident.
bernard ordered neuropsychological testing and received
the results, but when asked to interpret those results, bernard
stated she was not “any kind of expert.” bernard also stated
that she could not evaluate Golden’s neuropsychological results
because she did not have the training to do so. Nevertheless, in
her affidavit, bernard testified to a reasonable degree of medi-
cal certainty that Golden was suffering from “post-traumatic
encephalopathy” as a result of the two incidents.
UP filed both a motion in limine that sought to prevent
bernard from testifying as to ultimate causation and a motion
GOLDEN v. UNION PACIFIC RR. CO. 	489
Cite as 282 Neb. 486

for summary judgment. UP argued that bernard’s testimony
lacked scientific validity and did not meet the criteria for
establishing causation set forth in McNeel. the district court
found that under McNeel, Golden had not presented sufficient
evidence of causation because he had not identified a specific
toxin to which he was exposed. the district court granted
UP’s motion for summary judgment and motion in limine on
that basis.
After 	summary 	judgment 	was 	granted, 	Golden 	filed 	a
motion to alter or amend the court’s order of March 3, 2010,
or, in the alternative, a motion for new trial. Golden sought
to introduce an affidavit from Dr. Michael Corbett, an expert
in the fields of toxicology and chemistry. Corbett’s affidavit
stated that the train parts which had to be replaced after the
March 12, 2001, incident were known to be insulated with
“a Modified Polyester Electrical Insulating Varnish.” Corbett
stated that when the varnish melts, it emits isocyanates, which
“are powerful irritants to the skin, mucous membranes, eyes
and respiratory tract.” Corbett stated that toxic encephalopa-
thy can result from a potent exposure to isocyanates. Corbett
also stated that the varnish emitted acrylamide when heated
and that it is a neurotoxin. Corbett then stated that it was his
expert opinion that Golden had inhaled an injurious level of
toxic fumes.
the district court denied Golden’s motion to alter or amend,
finding that any evidence pertaining to the motion for summary
judgment should have been introduced at the hearing on the
motion for summary judgment. Golden appealed.
ASSIGNMENtS OF ERROR
Golden assigns that the district court erred in (1) finding
that McNeel controls, (2) finding that McNeel sets an absolute
standard requiring evidence of specific toxins before a treat-
ing medical expert’s opinion on causation is admissible, and
(3) denying his motion to alter or amend and not allowing
him to introduce expert testimony as to the toxin to which he
was exposed.
UP cross-appeals, assigning that the district court erred in
failing to grant UP’s motion in limine and motion for summary
490 	282 NEbRASkA REPORtS

judgment on the additional bases that bernard’s testimony
lacks foundation, scientific reliability, and helpfulness.
StANDARD OF REVIEW
[1] A court should grant summary judgment when the plead-
ings and evidence admitted show that no genuine issue exists
regarding any material fact or the ultimate inferences that may
be drawn from those facts and that the moving party is entitled
to judgment as a matter of law.3
[2] In reviewing a summary judgment, we view the evidence
in a light most favorable to the party against whom the judg-
ment is granted and give such party the benefit of all reason-
able inferences deducible from the evidence.4
ANALYSIS
McNeel Applies to Golden’s Claims.
Golden first argues that our decision in McNeel is inap-
plicable to this case.5 the district court applied our holding
in McNeel to Golden’s case, interpreting McNeel to require
that Golden present evidence of a specific toxin to which he
was exposed. Golden argues that since McNeel did not have
objective evidence of a physical injury, in contrast to Golden,
McNeel is inapplicable to this case.
First, we note that the incident in McNeel is the same as the
first incident of which Golden complains here. Golden distin-
guishes his case by arguing that he had evidence of his injuries
in the form of abnormal blood gases and an abnormal PEt
scan. Golden claims that in the case where McNeel was the
plaintiff, McNeel failed to provide any evidence to establish
the source of the unnamed toxic exposure.
McNeel was also transported to the hospital after the first
incident, however, and he introduced expert testimony regard-
ing a single photon emission computed tomographic scan,
pupillography testing of the autonomic nervous system, and
3 King v. Burlington Northern Santa Fe Ry. Co., 277 Neb. 203, 762 N.W.2d
24 (2009).
4 Id.
5 See McNeel, supra note 1.
GOLDEN v. UNION PACIFIC RR. CO. 	491
Cite as 282 Neb. 486

thermography. McNeel’s expert stated that the test results
showed that McNeel was suffering from toxic encephalopa-
thy “caused by his inhalation of an unspecified toxin while
employed by [UP].”6 McNeel presented evidence from another
expert indicating that he was suffering from a cognitive disor-
der resulting from a toxic injury.7
[3,4] We stated in McNeel that “a [Federal Employers’
Liability Act] plaintiff bears the burden of presenting evidence
from which a jury could conclude the existence of a probable
or likely causal relationship, as opposed to a merely possible
one.”8 We went on to find that McNeel’s experts did not meet
the Daubert/Schafersman9 analytical framework because they
did not “‘“fit”’”; in effect, the scientific evidence presented
must provide “‘a valid scientific connection to the pertinent
inquiry as a precondition to admissibility.’”10 We also stated
that because McNeel’s experts could not identify any toxic
substance which caused the symptoms they diagnosed as toxic
encephalopathy, their reasoning on causation was reduced to
nothing more than post hoc, ergo propter hoc, which is not
helpful to the trier of fact.11
Our decision in McNeel addressed the requirements for
utilizing expert testimony to establish a causal connection
between an event and a diagnosis of toxic encephalopathy. this
case presents the same issue. We find that McNeel is applicable
to Golden’s case, and Golden’s first assignment of error is
without merit.
District Court’s Interpretation of McNeel.
Golden next argues that the district court’s interpretation
of McNeel was incorrect. Golden claims that while McNeel
6 Id. at 146, 753 N.W.2d at 326.
7 McNeel, supra note 1.
8 Id. at 150, 753 N.W.2d at 329.
9 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct.
2786, 125 L. Ed. 2d 469 (1993); Schafersman v. Agland Coop, 262 Neb.
215, 631 N.W.2d 862 (2001).
10 McNeel, supra note 1, 276 Neb. at 153, 753 N.W.2d at 330.
11 McNeel, supra note 1.
492 	282 NEbRASkA REPORtS

presented no other evidence of exposure to toxic fumes than
a temporal relationship between the event and his symptoms,
Golden presented far more evidence of exposure to a toxic
substance. Golden claims that he offered sufficient evidence
of an exposure to a toxic substance to present a genuine issue
of material fact and overcome UP’s motion for summary judg-
ment. We agree.
keeping in mind that we must view the evidence in a light
most favorable to Golden and draw all reasonable inferences
deducible from the evidence, we review the testimony pre-
sented prior to the motion for summary judgment.12 Golden
presented testimony from his primary care physician, bernard,
as to her diagnosis and treatment. In bernard’s deposition, she
stated that she had ordered neuropsychological testing after
Golden complained of headaches and memory loss after the
first incident. bernard stated that after the first incident, Golden
had abnormal blood gas results that were consistent with toxic
inhalation. bernard also stated that Golden had an immedi-
ate onset of physical and neuropsychological symptoms after
the first incident. And according to bernard, after the second
incident, Golden had a mild hyperinflation of the lungs, which
indicated smoke inhalation. In her affidavit, bernard stated that
it was her opinion, to a reasonable degree of medical certainty,
that Golden suffers from posttraumatic toxic encephalopathy as
a result of the two incidents.
Golden also presented expert testimony from Smith regard-
ing the equipment failure on the locomotive involved in the
first incident. Smith stated in his affidavit that he had reviewed
the various depositions as well as the repair records for the two
locomotives involved. Smith stated that if there is an equip-
ment failure, wiring and cabling can overload and heat and that
“these types of electrical failures result in strong, toxic fumes
to which the locomotive crew is frequently exposed.” Smith
stated that it was his opinion that Golden “was more likely
than not exposed to fumes which resulted from the overheat-
ing and failure of electrical components on [the locomotive].”
Smith also stated that the repair records indicated the blower
12 See King, supra note 3.
GOLDEN v. UNION PACIFIC RR. CO. 	493
Cite as 282 Neb. 486

had been replaced and that he had investigated many reports
where the blowers and cooling systems vented fumes or vapors
into the cabs.
Although no specific toxin was identified, bernard’s and
Smith’s testimony, viewed as a whole in the context of sum-
mary judgment, presents a genuine issue of material fact as
to whether Golden was exposed to a toxic substance emitted
from within the locomotive that caused his alleged injuries. We
therefore reverse the decision of the district court and remand
the cause for further proceedings. For that reason, we need not
reach Golden’s third assignment of error.
UP’s Cross-Appeal.
We next turn to UP’s cross-appeal. UP argues that the district
court erred when it failed to address the foundational issues it
raised in its motion in limine. In that motion, UP argued that
bernard’s testimony lacked sufficient foundation to testify as
to ultimate causation. However, we note that the district court
granted UP’s motion in limine because it had granted UP’s
motion for summary judgment. As such, it was unnecessary,
in the district court’s view, to address the foundational issues.
because we hold that the district court erred when it granted
summary judgment and, accordingly, reverse, and remand for
further proceedings, the district court now has the opportunity
to address the foundational issues that UP raised in its motion
in limine.
CONCLUSION
Although McNeel is applicable to Golden’s case, Golden
presented sufficient evidence of a toxic exposure to present a
genuine issue of material fact. the district court erred in grant-
ing summary judgment, and we reverse, and remand for further
proceedings consistent with this opinion.
reversed And remAnded for
further proceedinGs.
494 	282 NEbRASkA REPORtS