2022 IL App (1st) 121486-U NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). SECOND DIVISION November 1, 2022 No. 1-21-1486 ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ DAVID MOLITOR, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County ) v. ) No. 2018 L 1934 ) BNSF RAILWAY COMPANY, f/k/a BURLINGTON ) The Honorable NORTHERN SANTA FE RAILWAY COMPANY, ) Mary Colleen Roberts, ) Judge Presiding. Defendant-Appellee. PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court. Justices Howse and Ellis concurred in the judgment. ORDER ¶1 Held: Trial court erred in barring plaintiff’s industrial hygiene and medical causation expert witnesses and thereafter granting summary judgment in favor of defendant. ¶2 The plaintiff, David Molitor, appeals the trial court’s entry of summary judgment in favor of the defendant, BNSF Railway Company, in this action under the Federal Employers’ Liability Act (FELA) (45 U.S.C. § 51 et seq. (2018)). The trial court granted summary judgment after barring the testimony of both of the plaintiff’s expert witnesses, Hernando R. Perez, Ph.D., and Ernest P. Chiodo, M.D., based on the defendant’s motions asserting that their testimony failed to satisfy the No. 1-21-1486 “general acceptance” test for the admission of expert testimony set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) (Frye test). On appeal, the plaintiff argues that the trial court erred in barring his experts’ testimony and then entering summary judgment on that basis. For the reasons that follow, we reverse judgment of the trial court and remand for further proceedings. ¶3 I. BACKGROUND ¶4 The plaintiff was an employee of the defendant railroad from 1973 to 2014. In 2018, he filed a one-count complaint against the defendant under FELA (45. U.S.C. § 51 et seq. (2018)), alleging in general that throughout his career his job duties had required him to work in close proximately to, or inside of, idling locomotive engines, which exposed him on a daily basis to various toxic substances and carcinogens. The complaint alleged that his exposure to these substances over many years caused, in whole or part, his development of B-cell lymphoma, diagnosed in 2015. It alleged that before and during the plaintiff’s employment, the defendant knew of evidence demonstrating a positive correlation or causative link between the exposure to these toxic substances and carcinogens and the development of cancer. It alleged various ways in which the defendant was negligent in allowing the plaintiff’s exposure to these cancer-causing substances. Additionally, although apparently not pled in the complaint, the plaintiff later testified that he was exposed throughout his career to herbicides, specifically Roundup, that were sprayed in the rail yards where he worked to control weed growth. ¶5 Discovery progressed, and the plaintiff ultimately disclosed two controlled expert witnesses to testify on his behalf. His liability expert was Dr. Perez, an industrial hygienist. His medical causation expert was Dr. Chiodo, an internal medicine …
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