Priscilla Lewis, Personal Representative of the Estate of Clarence Lewis v. Norfolk Southern Railway Company

           FIFTH DISTRICT COURT OF APPEAL
                  STATE OF FLORIDA
                 _____________________________

                     Case No. 5D2024-1567
                   LT Case No. 2017-CA-5800
                 _____________________________

PRISCILLA LEWIS, Personal
Representative of the Estate of
Clarence Lewis,

    Appellant,

    v.

NORFOLK SOUTHERN RAILWAY
COMPANY,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Duval County.
G.L. Feltel, Jr., Judge.

Carmen A. De Gisi, of De Gisi Law Group, LLC, Lafayette Hill,
Pennsylvania, and Jonathan Sternberg, of Jonathan Sternberg,
Attorney, P.C., Kansas City, Missouri, for Appellant.

Ira L. Podheiser, of Burns White LLC, Pittsburgh, Pennsylvania,
and Andrew J. Knight, II, of Moseley, Prichard, Parrish, Knight
& Jones, Jacksonville, for Appellee.

                       September 19, 2025


SOUD, J.
     Appellant Priscilla Lewis brought a wrongful death action
against Appellee Norfolk Southern Railway Company under the
Federal Employers’ Liability Act, 45 U.S.C. §§ 51 et seq., claiming
that her husband Clarence Lewis died from chronic lymphocytic
leukemia caused by occupational exposure to diesel exhaust during
his 39-year career as a railroader. The trial court ultimately
entered summary judgment in favor of Norfolk after excluding the
testimony of Lewis’s liability expert under Daubert v. Merrell Dow
Pharms., Inc., 509 U.S. 579 (1993).

     Mrs. Lewis appeals the summary judgment and argues the
trial court erred in its conclusion that her liability expert’s
testimony did not satisfy Daubert’s requirements. We have
jurisdiction. See Art. V, § 4(b)(1), Fla. Const.; Fla. R. App. P.
9.030(b)(1)(A). We reverse the summary judgment and remand the
case to the trial court for further proceedings, concluding the
expert’s testimony was admissible under Daubert, thus precluding
summary final judgment.

                                  I.

     Mr. Lewis worked for Norfolk from May 1975 until June 2014,
working primarily out of the Simpson Yard in Jacksonville,
Florida. 1 At various points, Mr. Lewis worked as a coal laborer,
switchman, conductor, and engineer. According to his wife, Mr.
Lewis worked mainly as an engineer. The record before us
describes a demanding job—one that involved working near
running engines and other diesel-powered machinery while
switching cars, building trains, and operating trains locally. Mrs.
Lewis presented evidence that in this work, Mr. Lewis was exposed
to diesel exhaust daily, often returning home with diesel fuel and
soot on his clothes and in his hair.

     Coworkers testified in depositions that diesel spills in the yard
also were not uncommon. One coworker, Bobby Jamison, testified
that Mr. Lewis was taken to a local hospital after one particular

    1 The facts as summarized in our opinion are viewed in the

light most favorable to Mrs. Lewis as the non-moving party below.
See Schramm v. Adams Homes of Nw. Fla., Inc., 414 So. 3d 352,
355 (Fla. 5th DCA 2025).


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chemical spill, after which Mr. Lewis suffered from a severe cough
“for years.” Further, another coworker testified that employees
never received any warning about risks associated with exposure
to diesel exhaust.

    In 2011, at 57 years of age, Mr. Lewis was diagnosed with
chronic lymphocytic leukemia, a form of cancer. His treatment
regimen required he retire from Norfolk in the summer of 2014.
Just three months after retiring, in September, Mr. Lewis died.

     In 2017, Mrs. Lewis, as the personal representative of her
husband’s estate, filed a FELA wrongful death action against
Norfolk. She alleged Norfolk was negligent in causing Mr. Lewis’s
long-term exposure to known carcinogens—diesel exhaust and
benzene, a component of diesel exhaust—throughout his
employment. She further claimed Norfolk was negligent by failing
to provide a reasonably safe workplace by failing to take certain
protective measures and by failing to warn of the risk of cancer
when exposed to diesel exhaust and benzene, a component of diesel
exhaust.

     To support her cause of action, Mrs. Lewis designated two
experts: Dr. Paul Rosenfeld, as a liability expert, and Dr. Mark
Levin, as her medical expert on causation. Pertinent here, Dr.
Rosenfeld opined that the railroad industry has known since the
1950s that diesel exhaust is a human carcinogen. He cited evidence
linking its exposure to increased cancer risk, particularly among
railroad workers. Considering these recognized risks, numerous
agencies and industry groups recommend protective measures
such as respirators and air-conditioned cabs.

     Nevertheless, Dr. Rosenfeld says that despite knowing diesel
exhaust exposure’s carcinogenicity since 1955 and industry and
government findings, Norfolk did not adopt any internal policy
about it until 2006, in which it claimed to its employees in a “Diesel
Information Sheet” that there is a “lack of evidence of chronic, non-
cancer health effects at occupational exposure levels” and “[t]here
also remains a question in the scientific community as to whether
diesel exhaust causes lung cancer.”

    Based upon the Environmental Protection Agency’s
Superfund Risk Assessment tool, Dr. Rosenfeld further opined that


                                  3
Mr. Lewis was subjected to long-term exposure to significant,
above-background levels of benzene from locomotive diesel
exhaust emissions, which placed Mr. Lewis at a substantially
elevated risk of getting cancer. In forming this opinion, Dr.
Rosenfeld quantified the “inhalation unit risk factor” by
calculating the ambient diesel particulate matter (“DPM”)
concentration in the occupational environment. According to Dr.
Rosenfeld, DPM is “used as a surrogate measure of exposure to
whole diesel exhaust.” Dr. Rosenfeld did note that his assessment
considered potential liability based on exposure and did not
determine the specific risk of contracting chronic lymphocytic
leukemia.

     Dr. Rosenfeld ultimately concluded that Norfolk did not meet
a reasonable standard of care throughout Mr. Lewis’s career. More
specifically, Norfolk failed to: (i) provide a reasonably safe place to
work; (ii) warn of the health risks associated with exposure to
diesel exhaust and benzene; (iii) implement controls to minimize
diesel exhaust; (iv) comply with the Federal Locomotive Inspection
Act and OHSA standards; and (v) provide air monitoring/exposure
monitoring.

     Norfolk moved to exclude Dr. Rosenfeld’s testimony, arguing
that his methodology of converting elemental carbon (“EC”) to
DPM was unreliable because it is untested and has not been
subjected to peer review or publication. Specifically, Norfolk
argued below, as it does here, that the generally accepted method
for calculating diesel exhaust exposure is by measuring EC and
comparing that measurement to exposure guidelines. Dr.
Rosenfeld’s methodology of converting the EC levels to DPM was
unreliable because he “took the elemental carbon number from
various studies he looked at from other railroads, [and]
convert[ing] it to diesel particulate matters[,] [h]e’s basically doing
the opposite or going backwards.” Further, Norfolk argues that
literature provides no consensus for rates of conversion for Dr.
Rosenfeld’s conversion method.

     Norfolk also argues that Dr. Rosenfeld’s analysis was not
reliably applied to the facts in this case because he: (a) utilized an
EPA Superfund Risk Assessment tool meant for Superfund sites




                                  4
and not railyards; and (b) his data and assessment tools related to
risks of lung cancer rather than chronic lymphocytic leukemia.

     The learned and conscientious trial judge granted Norfolk’s
motion, concluding that Dr. Rosenfeld’s testimony must be
excluded under Daubert. In its written order, the trial court
determined that Dr. Rosenfeld’s opinions, which “build off his
conclusion that [Mr. Lewis] was exposed to a harmful level of diesel
fumes over the course of his career with [Norfolk] and that
exposure was the cause of him developing [chronic lymphocytic
leukemia]” were “not grounded on reliable principles and methods,
and the methods he employed were not reliably applied to the facts
in this case.” The trial court specifically found that Dr. Rosenfeld
“converted EC levels to DPM, which is apparently unique to his
personal methodology.” Because this approach is unsupported by
the literature, “[t]his renders Dr. Rosenfeld’s most foundational
opinion, Decedent’s exposure level, unreliable under the Daubert
inquiry.”

     The trial court further found that applying this data by using
the EPA Superfund Risk Assessment tool is unreliable because Dr.
Rosenfeld failed to show “how that EPA tool can be reliably applied
to the facts of this case” because “the risk assessment tool itself is
supported by data based only upon lung cancer . . . . Absent some
evidentiary correlation to [chronic lymphocytic leukemia],
Plaintiff’s disease,” the trial court was “concerned Dr. Rosenfeld’s
opinions on this matter would require the jury to make that
connection based solely on speculation and conjecture. Stated
differently, this lack of ‘fit’ would create substantial risk of
misleading the jury.”

     As a result, Norfolk moved for summary judgment on the
grounds that Mrs. Lewis could not prove Norfolk was negligent in
the absence of admissible testimony. Norfolk also argued that Mrs.
Lewis could not prove causation either because her causation
expert, Dr. Levin, relied on Dr. Rosenfeld’s conclusions on liability
in forming his opinion that Norfolk’s negligence caused Mr. Lewis’s
cancer and death. In light of the trial court’s exclusion of Dr.
Rosenfeld’s testimony, Priscilla Lewis conceded she could not meet
her burden of proof under FELA. The trial court granted Norfolk’s
motion and entered final summary judgment in its favor.


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    This appeal followed.

                                II.

    We review for abuse of discretion the trial court’s exclusion of
Dr. Rosenfeld’s testimony under Daubert. See Sunbelt Rentals, Inc.
v. Burns, 402 So. 3d 1178, 1185 (Fla. 3d DCA 2025). The trial
court’s granting of final summary judgment is reviewed de novo.
See Duran v. Crab Shack Acq., FL, LLC, 384 So. 3d 821, 823 (Fla.
5th DCA 2024).

                                A.

     When properly challenged, the proponent of expert opinion
testimony must establish the basis for the testimony’s
admissibility. See Royal Caribbean Cruises, Ltd. v. Spearman, 320
So. 3d 276, 289 (Fla. 3d DCA 2021). Florida courts follow the
Daubert standard when determining the admissibility of expert
opinion testimony, which is codified in section 90.702, Florida
Statutes:

       If scientific, technical, or other specialized
       knowledge will assist the trier of fact in
       understanding the evidence or in determining a
       fact in issue, a witness qualified as an expert by
       knowledge, skill, experience, training, or education
       may testify about it in the form of an opinion or
       otherwise, if:

       (1) The testimony is based upon sufficient facts or
       data;

       (2) The testimony is the product of reliable
       principles and methods; and

       (3) The witness has applied the principles and
       methods reliably to the facts of the case.

    This statute, as does Daubert, charges the trial court with an
important gatekeeping function to ensure an expert “employs in
the court room the same level of intellectual rigor that
characterizes the practice of an expert in the relevant field.” See


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Cristin v. Everglades Corr. Inst., 310 So. 3d 951, 955–56 (Fla. 1st
DCA 2020) (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137,
152 (1999)). And when expert opinion testimony is found to be both
relevant and reliable, it is admissible. See Vitiello v. State, 281 So.
3d 554, 560 (Fla. 5th DCA 2019) (citing Daubert, 509 U.S. at 589);
see also Royal Caribbean Cruises, Ltd., 320 So. 3d at 290 (the trial
court’s work as gatekeeper is to “ensur[e] that an expert’s
testimony both rests on a reliable foundation and is relevant to the
task at hand.” (alteration in original) (quoting Daubert, 509 U.S.
at 597)).

     In considering the testimony’s relevance, the trial court must
determine whether it will “assist the trier of fact to understand the
evidence or to determine a fact in issue.” See Vitiello, 281 So. 3d at
560 (quoting Daubert, 509 U.S. at 591). That is to say, the
“testimony must be ‘tied to the facts of the case [so] that it will aid
the jury in resolving a factual dispute.’” See id. (alteration in
original) (quoting Daubert, 509 U.S. at 591).

     Evaluating reliability requires the trial court to make 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.” See id. (quoting Daubert, 509 U.S. at 592–93). To this end,
the gaze of the court is fixed upon the methodology of the expert
witness, not simply the substance of his opinion. And the expert’s
opinion must be based upon “knowledge” and not simply
“subjective belief or unsupported speculation.” Daubert, 509 U.S.
at 590.

     Daubert provided factors the trial court may consider when
assessing reliability, though they were not designed to be a
“definitive checklist or test”—whether the theory or technique: (1)
can be or has been tested; (2) has been subjected to peer review
and publication; (3) has a known or potential rate of error or
standards controlling its operation; and (4) is generally accepted
in the relevant scientific community. See id. at 592–94; see also
Vitiello, 281 So. 3d at 560; Royal Caribbean Cruises, Ltd., 320 So.
3d at 290–91. Daubert’s test of reliability is “flexible” and the
“specific factors neither necessarily nor exclusively applies to all
experts or in every case.” Kumho Tire Co., 526 U.S. at 141; see also


                                  7
Vitiello, 281 So. 3d at 560. The trial court has “considerable
leeway” in how it determines whether expert testimony in a given
case is reliable. See Vitiello, 281 So. 3d at 560 (quoting Kumho Tire
Co., 526 U.S. at 152). If the trial court determines the expert’s
methodology satisfies this threshold reliability, the court must also
determine whether the methods and principles were reliably
applied to the facts of the case. See id.

     The trial court’s function under Daubert is not designed to be
so exacting as to deprive a proponent of expert testimony of her
right to trial by jury. See Peng v. Citizens Prop. Ins., 337 So. 3d
488, 493 (Fla. 3d DCA 2022) (“[T]he trial court must be careful not
to intrude upon the adversary system . . . .”); see also Art. I, § 22,
Fla. Const. The trial court’s role as gatekeeper “is not intended to
supplant the adversary system or the role of the jury[.]” United
States v. Ala. Power Co., 730 F.3d 1278, 1282 (11th Cir. 2013); see
also United States v. 14.38 Acres of Land, 80 F.3d 1074, 1078 (5th
Cir. 1996); Baan v. Columbia County, 180 So. 3d 1127, 1134 (Fla.
1st DCA 2015); Vitiello, 281 So. 3d at 560 (Daubert does not “serve
as a replacement for the adversary system.”).

     Indeed, as Daubert itself cautions, “[v]igorous cross-
examination, presentation of contrary evidence, and careful
instruction on the burden of proof are the traditional and
appropriate means of attacking shaky but admissible evidence.”
Daubert, 509 U.S. at 596; see also Royal Caribbean Cruises, Ltd.,
320 So. 3d at 290 (quoting Daubert). “These tools remain the
‘appropriate safeguards,’ and not ‘wholesale exclusion,’ where the
basis for expert testimony meets the standards set forth by the
rules of evidence.” Vitiello, 281 So. 3d at 560 (quoting Daubert, 509
U.S. at 596). As a result, exclusion of an expert’s testimony is the
exception—not the rule. See Vitiello, 281 So. 3d at 560; see also
Royal Caribbean Cruises, Ltd., 320 So. 3d at 291 (quoting Vitiello).

                                 B.

                                  1.

    Here, Mrs. Lewis brought her FELA claim for the wrongful
death of her husband. The U.S. Supreme Court has made clear
that FELA is a “broad remedial statute.” Forcino v. Nat’l R.R.
Passenger Corp., 671 So. 2d 888, 889 (Fla. 5th DCA 1996) (citing


                                  8
Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 543 (1994)).
“Cognizant of the physical dangers of railroading that resulted in
the death or maiming of thousands of workers every year,
Congress crafted a federal remedy that shifted part of the human
overhead of doing business from employees to their employers.”
Gottshall, 512 U.S. at 542 (internal quotation marks omitted)
(quoting Tiller v. Atl. Coast Line R.R. Co., 318 U.S. 54, 58 (1943)).

     To that end, Congress provided that carriers by railroad are
liable for injury or death “resulting in whole or in part from the
negligence” of the carrier or its agents. 45 U.S.C. § 51. The
employer is liable if its negligence “played any part, even the
slightest, in producing the injury or death for which damages are
sought.” Gottshall, 512 U.S. at 543 (quoting Rogers v. Mo. Pac. R.R.
Co., 352 U.S. 500, 506 (1957)).

                                  2.

    In support of her FELA claim, Mrs. Lewis designated Dr.
Rosenfeld as her liability expert. In broad terms, he opined
concerning Mr. Lewis’s occupational exposure to diesel exhaust
and benzene during his career and that Norfolk was negligent in
several key areas, including its failure to provide a safe work
environment and to warn its employees about the health risks
associated with exposure to diesel exhaust and benzene.

     Norfolk’s objections to Dr. Rosenfeld’s testimony—namely
that Dr. Rosenfeld’s testimony is inadmissible because: (i) his
methodology in determining Mr. Lewis’s exposure concerning
levels is unreliable; and (ii) his methodology is not reliably applied
to this case because his information and assessment tools are born
of non-railyard, Superfund sites dealing with lung cancer and not
chronic lymphocytic leukemia—do not warrant exclusion under
Daubert. Certainly, these arguments are properly the subject of
Norfolk’s focused and energetic cross-examination of Dr.
Rosenfeld. See Holland v. Holland, 360 So. 3d 1176, 1180 (Fla. 5th
DCA 2023) (holding that claims deficiencies in the bases for the
expert’s opinion would be “proper fodder for an intense cross-
examination” but did not warrant exclusion). And this cross-
examination, together with the other tested and proven tools of
“presentation of contrary evidence[] and careful instruction on the
burden of proof,” see Daubert, 509 U.S. at 596, provide sufficient

                                  9
and “appropriate safeguards” inherent in our adversarial system
to facilitate a jury’s determination whether Norfolk’s negligence
“played any part, even the slightest, in producing” Mr. Lewis’s
death, see Gottshall, 512 U.S. at 543 (emphasis added).

     Further, Dr. Rosenfeld is Mrs. Lewis’s expert on liability—not
medical causation. As a result, Norfolk’s argument that the
assessment tools and data he relied upon addressing lung cancer
and not chronic lymphocytic leukemia does not render unreliable
his opinion on liability. Whether such exposure was capable of or
sufficient to cause Mr. Lewis’s specific type of cancer is properly
the focus the testimony and examination of Dr. Mark Levin, Mrs.
Lewis’s causation expert.

                               III.

     Accordingly, as the trial court erred in excluding the
testimony of Dr. Rosenfeld, Mrs. Lewis’s liability expert, and
resultingly entering summary judgment in favor of Norfolk, we
REVERSE the summary judgment and REMAND the case for further
proceedings consistent with this opinion.

    It is so ordered.



MAKAR and EISNAUGLE, JJ., concur.



                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________




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