Free Brief in Opposition to Motion - District Court of Colorado - Colorado


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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-00560-OES-BNB

GEORGE M. BULL, Plaintiff, v. UNION PACIFIC RAILROAD COMPANY, a Delaware corporation, Defendant.

DEFENDANT'S BRIEF IN OPPOSITION TO PLAINTIFF'S MOTION TO STRIKE TESTIMONY OF DR. NEIL K. COOPERRIDER

INTRODUCTION According to Rule 702 of the Federal Rules of Evidence and the Supreme Court of the United States, trial courts must act as "gatekeepers" to ensure that any and all scientific evidence is relevant and reliable, and assists the jury in determining facts in issue before such testimony may be admitted at trial. FED. R. EVID. 702; Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), upon remand, 43 F.3d 1311 (9th Cir. 1995) [hereinafter "Daubert"]. Dr. Cooperrider's opinions are admissible under Rule 702 of the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc. because his opinions are scientifically reliable. FACTUAL SUMMARY On March 12, 2004, Plaintiff filed this lawsuit alleging that Defendant caused him to develop chronic and permanent injuries to his spine by negligently failing to provide Plaintiff with a reasonably safe workplace, and seeking compensation pursuant to the Federal Employers' Liability Act ("FELA"), 45 U.S.C. §51, et. seq. See Complaint. Specifically, Plaintiff alleges

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that he was exposed to vibration while working aboard locomotives which over the course of his employment caused injuries to his spine. Id. In compliance with Rule 26 (a) (2) of the Federal Rules of Civil Procedure, Defendant identified Neil K. Cooperrider, Ph.D., P.E., as an expert witness in the case at bar and provided Plaintiff with Dr. Cooperrider's written expert report. See Defense Exhibit "A," Defendant's Designation of Expert Witnesses, filed January 17, 2005. Dr. Cooperrider seeks to proffer the following opinions in this case: (1) The impact and vibration levels measured on UP6263 locomotives were below the lower boundary of the health guidance caution zone given in the ISO and ANSI standards; and (2) Evaluation according to Part 5 of the ISO standard that addresses the health effects of vibration and shock over a long period of exposure indicates that there is a very low probability of an adverse health effect on the lumbar spine due to a lifetime of exposure to the isolated impacts at the levels measured on the UP6263. See Defense Exhibit "B," Expert Report of Neil K. Cooperrider at page 5 [hereinafter "Cooperrider Expert Report"]. Dr. Cooperrider measured the whole body vibration and repeated shock/impact experienced on the UP6263 locomotive in accordance with the International Standards Organization (ISO) 2631-1 (1997) "Evaluation of Human Exposure to Whole-body Vibration," and the International Organization for Standardization (ISO) 2631-5 (2004) "Mechanical vibration and shock--Evaluation of human exposure to whole-body vibration, Part 5: Method for evaluation of vibration containing multiple shocks." Id. at 1; see also Defense Exhibit "C," the International Organization for Standardization (ISO) 2631-1 (1997) "Evaluation of Human Exposure to Whole-body Vibration" [hereinafter "ISO 2631-1"]; and Defense Exhibit "D," the International Organization for Standardization (ISO) 2631-5 (2004) "Mechanical vibration and shock--Evaluation of human exposure to whole-body vibration, Part 5: Method for evaluation of

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vibration containing multiple shocks" [hereinafter "ISO 2631-5"]. Dr. Cooperrider measured the conductor's seat and the floor of the UP 6263 locomotive, an EMD SD60M model, which was operating in revenue service as the lead unit on train ZSCCS-19 with locomotives UP4850 and UP9673 as trailing units and 18 loaded container cars. The measurements were obtained on November 19, 2004 between Green River, WY and Laramie, WY. See Cooperrider Expert Report at page 1. Dr. Cooperrider placed tri-axial sets of accelerometers to record acceleration in the longitudinal (fore-aft), lateral (side-side) and vertical (up-down) directions on the engineer's seat and on the locomotive cab floor. See Cooperrider Expert Report at pages 1-2. A speed sensor was placed on the locomotive to obtain speed information. Id. Data was acquired continuously and grouped into files 204.8 seconds in length. Id. Recorded data was processed following the ISO standards, including weighting the data to account for the variations in human sensitivity with vibration frequency. Id. Dr. Cooperrider reports the results of his measurements, his analysis and his conclusions in his expert report. Id., passim. ARGUMENT A. Scientifically reliable expert testimony is admissible at trial. According to Rule 702 of the Federal Rules of Evidence, the trial court must ensure that any and all scientific evidence is relevant and reliable, and assists the trier-of-fact before admitting it at trial.1 FED. R. EVID. 702; Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), upon remand, 43 F.3d 1311 (9th Cir. 1995) [hereinafter "Daubert"].2

Under the Federal Rules of Evidence, the trial court shall determine preliminary questions concerning the admissibility of evidence. FED. R. EVID. 104(a). 2 See also Kumho Tire Co, Ltd. v. Carmichael, 526 U.S. 137 (1999); General Electric v. Joiner, 522 U.S. 136 (1997).

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Rule 702 establishes a two-prong test to determine the admissibility of an expert's testimony: (1) the reasoning and methodology underlying the testimony must be scientifically reliable; and (2) the methodology must be applicable to the facts of the case. Daubert, 509 U.S. at 589-93. In addressing the principles enunciated in Daubert, the Tenth Circuit recognized that "[t]he plaintiff must show that the method employed by the expert in reaching the conclusion is scientifically sound and that the opinion is based on facts which sufficiently satisfy Rule 702's reliability requirements." Mitchell v. Gencorp Inc., 165 F.3d 778, 781 (10th Cir. 1999) (citing Daubert, 509 U.S. at 590). Moreover, "[u]nder Rule 702, admissible expert testimony must be based on actual knowledge and not subjective belief or unsupported speculation." Lovato v. Burlington Northern and Santa Fe Ry. Co., 2002 WL 1424599 (D.Colo.) (citing Mitchell, 165 F.3d at 780)(internal quotations omitted). Dr. Cooperrider's proffered testimony is scientifically reliable, and as such, admissible. B. Dr. Cooperrider's proffered testimony is scientifically reliable. 1. Courts determine scientific reliability by analyzing the factors set out in Daubert and its progeny.

To be scientifically reliable, the subject of the expert's testimony must be "scientific...knowledge." Daubert, 509 U.S. at 590. In order to qualify as scientific knowledge, the inference or assertion proposed by the expert must be derived by the "scientific method." Id. Thus, the "proposed testimony must be supported by appropriate validation" or "good grounds." Id. "Admissible expert testimony must be based on actual knowledge and not subjective belief or unsupported speculation." Lovato v. Burlington Northern and Santa Fe Ry. Co., 2002 WL 1424599 (D.Colo.) (citation omitted). Trial courts have considerable discretion in making this determination. Kumho Tire Co., Ltd., 526 U.S. at 152 (1999).

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The Daubert Court suggested four illustrative, non-exclusive factors to assist trial judges in determining the scientific reliability of the proposed testimony: (1) whether the expert's theory or technique can be or has been tested; (2) whether the expert's theory or technique has been subject to peer review and publication; (3) whether the rate, or potential rate of error, is known, and whether there are standards controlling the technique's operation; and (4) whether the expert's methodology is "generally accepted" in the relevant scientific community. Daubert, 509 U.S. at 593-94. See also Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1316-17 (9th Cir. 1995), cert. denied, No. 95-198 (U.S. Oct. 2, 1995) [hereinafter "Daubert II"]. Subsequent decisions have expanded this list of factors. General Electric v. Joiner, 522 U.S. 136, 144 (1997); Daubert II, 43 F.3d at 1316-17. The Ninth Circuit in Daubert II

supplemented the Supreme Court's list of factors to include, first, whether the expert is proposing to testify about matters "growing naturally and directly" from research conducted independently of the litigation. Daubert II, 43 F.3d at 1316-17. Second, an expert may explain his/her precise methodology and identify some objective source to establish adherence to the scientific method as practiced by a recognized majority of scientists in that scientific field. Id. at 1318. Third, the Supreme Court supplemented this list of factors to include an assessment of whether the analytical gap between the data relied on and the conclusions or opinions proffered is too great. Joiner, 522 U.S. at 144-46. Importantly, not every factor is applicable or relevant to every Daubert inquiry. Daubert, 509 U.S. at 593; Kumho Tire Co., Ltd., 526 U.S. at 150. The "overarching subject is the scientific validity and thus the evidentiary relevance and reliability ­ of the principles that underlie a proposed submission." Daubert, 509 U.S. at 594-95. Dr. Cooperrider's expert

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testimony meets the relevant reliability factors set out in Rule 702. Thus, Dr. Cooperrider's testimony is scientifically reliable and admissible. 2. Dr. Cooperrider's methodology and analysis meet all of the Daubert factors and are scientifically reliable. a. ISO 2631-1 and 2631-5 represent the generally accepted methods for measuring and analyzing whole body vibration and repeated shock exposure.

The generally accepted methods for measuring and analyzing whole body vibration and repeated shock exposure are prescribed in the International Standards Organization (ISO) 2631-1 (1997) "Evaluation of Human Exposure to Whole-body Vibration," and the International Organization for Standardization (ISO) 2631-5 (2004) "Mechanical vibration and shock-- Evaluation of human exposure to whole-body vibration, Part 5: Method for evaluation of vibration containing multiple shocks." See ISO 2631-1; see also ISO 2631-5. The International Organization for Standardization ("ISO") is a world-wide federation of national standards bodies called ISO member bodies (e.g., The American National Standards Organization is a "member body" of ISO). See ISO 2631-1, Foreword. At the ISO, international consensus standards development is carried out by technical committees comprised of experts from each member body's delegation to the ISO. See ISO 2631-1, Foreword. Each member body is entitled to have a representative on any technical committee. Id. Dr. Cooperrider is a member of the United States of America's delegation of the ISO technical committee responsible for the development of international consensus standards relating to human exposure to whole body vibration and repeated shock. See Defense Exhibit "E," Affidavit of Neil K. Cooperrider, at para. 11, attached hereto [hereinafter "Cooperrider Affidavit"]. The ISO Standard represents a consensus method for acquiring and analyzing data regarding whole-body vibration and repeated shock exposure. Id; see also Cooperrider Affidavit

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at paras. 7-14. Adoption of an international standard is a three step process which requires approval of 75% or greater at each step. First, after approval by not less than 75% of the delegates on the technical committee, the technical committee issues a draft international standard. See ISO 2631-1, Foreword. Second, the draft international standard is circulated to the member bodies for voting. Id. Each member body has an opportunity to comment on the draft. Id. Technical committees may revise a draft international standard in response to commentary by member bodies. Id. Third, if 75% or more of the member bodies approve the draft Id. Thus, an

international standard, the ISO publishes it as an International Standard.

International Standard represents the consensus opinion of the experts on the technical subject matter that represent the various member bodies. Moreover, the International Standards are subject to periodic review and revision, if warranted by advances in scientific knowledge. See ISO 2631-1, Foreword. Technical subcommittees may also periodically issue additional sub-parts to the standards, such as recently issued ISO 2631-5 (2004) Mechanical Vibration and Shock ­ Evaluation of Human Exposure to Wholebody Vibration ­ Method for Evaluation of Vibration Containing Multiple Shocks. Id. At present, ISO 2631-1 and 2631-5 are the only International Standards that provide a comprehensive method for instrumentation; data acquisition, data processing, data analysis, and data reporting for human exposure to whole body vibration and repeated shock. See Cooperrider Affidavit at para. 14. The American National Standards Institute adopted ISO 2631-1 verbatim in the ANSI S3.18 (2002) standard. See Cooperrider Affidavit at para. 14. The European Union (EU) and the British Standards Institute (BSI) also adopted the ISO Standard's methodology for the measurement, analysis, and reporting of whole body vibration and repeated shock. Id. Dr. Cooperrider utilizes ISO 2631-1 and 2631-5 as his methodology for instrumentation, data

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acquisition and processing, data reporting, and data interpretation in his analysis of the case at bar because these Standards represent the generally accepted methodology in the field of physical engineering in relation to the measurement of whole body vibration and repeated shock. Id. Moreover, the ISO process for publication of an international standard clearly indicates that this methodology has been subjected to peer-review and publication, the methodology has been tested, and there are standards controlling the technique's operation. methodology satisfies the Daubert factors. Daubert, 509 U.S. at 593-94. b. Dr. Cooperrider adhered to the generally accepted methodology for measurement and assessment of whole body vibration and repeated shock exposure. As such, this

To arrive at his conclusions in the case at bar, Dr. Cooperrider utilized the ISO 2631-1 and ISO 2631-5 methodologies for instrumentation, data acquisition and processing, data reporting, and data interpretation. ISO 2631-1 Standard requires a three step analysis. First, basic whole body vibration ("basic vibration") must be assessed by measuring the weighted rootmean-square ("r.m.s.") acceleration levels which is expressed in meters per second squared and compared to the Health Guidance Caution Zone3" (hereinafter "HGCZ"). See ISO 2631-1 at Section 6.1. Second, the "crest factor" must be calculated to determine whether significant impacts are present. See ISO 2631-1 at Sections 6.2. If the basic vibration data is below the recommended exposure guidelines, and there are no significant impacts present, the basic vibration assessment method is ordinarily sufficient according to the ISO Standard. Id. at Section 6.1 and Annex B. Third, if significant impacts are present, the ISO Standard requires additional analysis, to determine if the impact is potentially deleterious. See ISO Standard at

Equations for calculation of the reported values are included in the Standard. See ISO 2631-1. The Annexes to the ISO Standard provide greater technical detail concerning the conditioning and analysis of the data. Id.

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Sections 6.2-6.3. There are two alternative types of additional analysis: the maximum transient vibration value ("MTVV"), and the fourth power vibration dose value ("VDV").4 See ISO Standard at Sections 6.2-6.3. According to ISO 2631-1, the recommended HGCZ is between .43 meters per second squared5 and .87 meters per second squared in the most severe direction of the vibration6 for an 8 hour time period. See ISO 2631-1, Annex B. According to the Standard, the health effects have not been clearly documented and/or objectively observed for exposures that fall below the lower boundary of the HGCZ. See ISO 2631-1 at Annex B, section B.3.1, fig. B.1. Additionally, for exposures which exceed the upper boundary of the HGCZ, health risks are likely. See ISO 26311 at Annex B, section B.3.1, fig. B.1. Thus, the lower limit is approximately .5 and the upper limit is approximately 1 in the most severe direction of vibration. Id. Dr. Cooperrider followed the ISO 2631-1 methodology with precision. Cooperrider Expert Report at 1-4 with ISO 2631-1. Compare

First, Dr. Cooperrider measured the

weighted r.m.s. acceleration levels. See Cooperrider Expert Report at 1-4. According to Dr. Cooperrider's data, reported at Figures 1, 2, and 3 in his expert report, the weighted r.m.s. acceleration levels for the entire 4.67 hour period were below the lower boundary of the ISO HGCZ. See Cooperrider Expert Report at 2-4. Second, Dr. Cooperrider calculated the crest factors to determine whether significant impacts were present. Id. at 4. "The crest factor may be used to investigate if the basic evaluation method is suitable for describing the severity of the vibration in relation to its effects
The fourth power vibration dose method is more sensitive than the basic evaluation method to peaks because it uses the fourth power instead of the second power of the acceleration time history as the basis for averaging. See ISO Standard at Section 6.3.2. 5 The primary quantity of vibration magnitude is acceleration. See ISO Standard at Section 5.1. Acceleration is expressed in an engineering unit referred to as meters per second squared (i.e., meters per second per second). Id. at Section 4.1.
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on human beings." See ISO 2631-1 at Section 6.2.2. Where the crest factor is greater than 9, the basic vibration evaluation method may underestimate the effects of vibration and additional analysis is required to determine the health effects of the vibration. Id. at Section 6.2.3.

According to Dr. Cooperrider's calculations, the maximum crest factors in the three directions for any of the 204.8 second measurement periods ranged from 8.79 to 12.76. See Cooperrider Expert Report at 4. Third, because the crest factors were greater than 9, Dr. Cooperrider calculated the VDV, the third step of the ISO 2631-1 Standard's methodology. Id.; see also ISO 2631-1 at Section 6.3.2. The VDV ranged from 2.50 to 7.10. See Cooperrider Expert Report at 4. According to

ISO 2631-1, the VDV values "corresponding to the lower and upper bounds of the [HGCZ]" are 8.5 and 17. See ISO 2631-1, Annex B at B.3.1. Thus, the VDV are well below the lower HGCZ boundary for daily exposure. See ISO 2631-1, Annex B. ISO 2631-5 also requires a three step analysis which measures and assesses "spinal pressure" as the result of whole body vibration and repeated shock exposure in engineering units call mega Pascals. See ISO 2631-5 at Figure A.1 ­ Flowchart for assessment of adverse health effects from vibration containing multiple shocks. Step one requires the measurement of the Acceleration dose. Id. Step two requires the normalization of the acceleration dose for the average daily exposure time. Id. Step three requires the calculation of the daily equivalent static compression dose in mega Pascals. Id. The Part 5 analysis is specifically designed to assess the accumulative exposure to repeated shock during a 45 year career between the ages of 20 and 65 years of age. See ISO 2631-5, at Introduction. Just as with the HGCZ in Part 1 of the ISO Standard, an upper and lower boundary are provided. According to ISO 2631-5, if the resultant

Vibration is measured and analyzed in three directions, front to back ("X axis"), side to side ("Y axis"), and head to toe ("Z axis").

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daily stress for an individual exposed to vibration and shock for 240 days per year in the 45 years between ages 20 and 65 is below 0.5 mega Pascals, there is a low probability of an adverse health effect. See ISO 2631-5 at Figure A.1 ­ Flowchart for assessment of adverse health effects from vibration containing multiple shocks. Dr. Cooperrider meticulously followed the steps in the Part 5 analysis to calculate the static compression dose. See Cooperrider Expert Report at 4-5. According to Dr. Cooperrider's calculations, the spinal compression measurements ranged from .070 mega Pascals to 0.349 mega Pascals. Id. at 4. These values are well below the 0.5 mega Pascals. As such, according to ISO 2631-5, a low probability of adverse health effects exists. See ISO 2631-5 at Figure A.1 ­ Flowchart for assessment of adverse health effects from vibration containing multiple shocks. c. Dr. Cooperrider's data and calculations support his conclusions.

Dr. Cooperrider seeks to proffer the following opinions in this case: (1) The impact and vibration levels measured on UP6263 locomotives were below the lower boundary of the health guidance caution zone given in the ISO and ANSI standards; and (2) Evaluation according to Part 5 of the ISO standard that addresses the health effects of vibration and shock over a long period of exposure indicates that there is a very low probability of an adverse health effect on the lumbar spine due to a lifetime of exposure to the isolated impacts at the levels measured on the UP6263. See Cooperrider Expert Report at 5. As set out at length in subsection b above, the results of Dr. Cooperrider's measurements and calculations, conducted in accordance with ISO 2631-1 (which is identical to the ANSI S3.18 (2002) standard), fall below the lower boundary of the HGCZ. Further, as stated above, according to ISO 2631-1, "health effects have not been clearly documented and/or objectively observed" for exposures that fall below the lower boundary of the HGCZ. See ISO 2631-1 at

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Annex B, section B.3.1, fig. B.1. Clearly, Dr. Cooperrider's first opinion is supported by ISO 2631-1 and Dr. Cooperrider's own measurements, calculations, and analysis. Again, as set out above at length, the results of Dr. Cooperrider's ISO 2631-5 analysis of the whole body vibration and repeated shock exposure in the UP 6263 locomotive indicate that there is a very low probability of an adverse health effect on the lumbar spine due to a lifetime of exposure to the isolated impacts at the levels measured. According to ISO 2631-5, if the resultant daily stress for an individual exposed to vibration and shock for 240 days per year in the 45 years between ages 20 and 65 is below 0.5 mega Pascals, there is a low probability of an adverse health effect. See ISO 2631-5 at Figure A.1 ­ Flowchart for assessment of adverse health effects from vibration containing multiple shocks. Dr. Cooperrider meticulously followed the steps in the Part 5 analysis to calculate the static compression dose. See Cooperrider Expert Report at 4-5. According to Dr. Cooperrider's calculations, the spinal compression

measurements ranged from .070 mega Pascals to 0.349 mega Pascals. Id. at 4. These values are well below 0.5 mega Pascals. As such, according to ISO 2631-5, a low probability of adverse health effects exists. See ISO 2631-5 at Figure A.1 ­ Flowchart for assessment of adverse health effects from vibration containing multiple shocks. clearly support his conclusions. Dr. Cooperrider's data and calculations

Consequently, there is no analytical gap between Dr.

Cooperrider's data and his conclusions. C. Plaintiff misapprehends Rule 702 and the Daubert inquiry when he asserts that courts have consistently rejected and excluded testimony about the probability or likelihood of injury as support for Plaintiff's proposition that Dr. Cooperrider's opinions are inadmissible.

Plaintiff's assertion that courts have consistently rejected and excluded testimony about the probability or likelihood of injury as support for Plaintiff's proposition that Dr. Cooperrider's opinions are inadmissible, and reliance on Schultz v. Wells, 13 P.3d 846 (Co. App. Ct. 2000),

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Suanez v. Egeland, 353 N.J.Super. 191, 194, 801 A.2d 1186, 1188 (N.J. Super. Ct. 2002), and Robb v. Burlington Northern Railway, 100 F.Supp.2d 867, 872 (N.D. Ill.2000) as support for those assertions, misapprehends the fundamental aspects of the Rule 702/Daubert inquiry. Each Daubert inquiry is highly fact specific, and as stated in Daubert, trial courts should focus "on principles and methodology, not on the conclusions they generate." Daubert, 509 U.S. at 595. Moreover, as the Supreme Court recognized in Kumho Tire Co., Ltd., "the trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable." 526 U.S. at 152 (1999). Plaintiff relies on the Schultz, Suanez, and Robb decisions as support for the proposition that courts have consistently rejected and excluded testimony about the probability or likelihood of injury. However, Plaintiff fails to provide the Court with a detailed account of the rationale for the courts' exclusions of those opinions in each case. As the in depth examination below reveals, the Courts in Schultz, Suanez, and Robb excluded the proffered experts because the methodologies underlying their opinions were not scientifically reliable and failed to satisfy the Daubert factors. However, as set out at length above, the methodology and basis for Dr. Cooperrider's opinions in the case at bar are scientifically reliable and satisfy all of the Daubert factors. First and foremost, Schultz v. Wells is a Colorado State case and the admissibility of expert testimony in the State of Colorado is governed by the standard established in Frye v. United States, 293 F. 1013 (D.C.Cir. 1923) and the standard established in Rule 702 of the Colorado Rules of Evidence. Schultz, 13 P.3d at 849-851.7

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It is important to note that the Schultz Court indicated that Colorado trial courts may rely on the Daubert factors if applicable under Rule 702 of the Colorado Rules of Evidence. Schultz, 13 P.3d at 851.

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Second, the Schultz case is clearly distinguishable from the case at bar. In Schultz, the plaintiff sued the driver of a vehicle which hit the plaintiff from behind alleging negligence. Id. at 848. The defendant sought to proffer expert witness testimony on the injury potential of lowspeed accidents. Id. at 851. The Court excluded the witnesses testimony where such testimony would not assist the trier of fact because the proffered test results were inadequate for the purpose for which they were being offered. Id. According to the Court, the force threshold for probability of injury demonstrated in the test could not be used to "prove that a particular person was not injured or was likely not injured in this accident." Id. (emphasis added). The Court reasoned that the tests used to ascertain safety for the purposes of doing a cost-benefit analysis with regard to the expense of designing the seat of a car were not applicable to prove that a particular person was unlikely to be injured in a specific accident. Id. The Court also reasoned that in the engineering field and the automotive industry there was not agreement on the threshold of injury and that there was not general acceptance of the underlying theory or the techniques of the study to establish that the theory was valid. Id. at 852. Unlike the expert proffered in Schultz and as argued at length above, the ISO 2631-1 and ISO 2631-5 Standards are generally accepted in the field of physical engineering in relation to the measurement of whole body vibration and repeated shock. Moreover, the "Health Guidance Caution Zone" represents the agreement within the field of the range of exposures to whole body vibration and repeated shock below which no adverse health effects have been objectively observed. See ISO 2631-1, Annex B, section B.3.1, fig. B.1.; ISO 2631-5 at Figure A.1 ­ Flowchart for assessment of adverse health effects from vibration containing multiple shocks; see also supra Section B(2)(b).

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Again distinct from the expert proffered in Schultz, Dr. Cooperrider is not seeking to testify about specific causation. In other words, Dr. Cooperrider is not seeking to testify that Plaintiff specifically was not injured by his exposure to whole body vibration and repeated shocks. To the contrary with respect to general causation, Dr. Cooperrider seeks to testify (1) that he engaged in the ISO 2631-5 analysis (which assesses the health effects of vibration and shock over a long period of exposure) of the UP 6263, the locomotive which is the subject of this action; (2) about the results of this analysis; and (3) that at the levels measured on the UP 6263, there is a very low probability of an adverse health effect on the lumbar spine due to a lifetime exposure to the isolated impacts according to the "Health Guidance Caution Zone" established by the ISO. Plaintiff continues to miss the mark when Plaintiff cites Suanez v. Egeland, 353 N.J.Super. 191, 194, 801 A.2d 1186, 1188 (N.J. Super. Ct. 2002). First, Defendant notes that Suanez v. Egeland is a New Jersey State case and the admissibility of expert testimony in the State of New Jersey is governed by the standard established in State v. Harvey, 151 N.J. 117, 167, 699 A.2d 596 (1997), which differs from the standard established in Rule 702 of the Federal Rules of Evidence.8 Second, Suanez v. Egeland is distinguishable from the case at bar. In Suanez v. Egeland, the plaintiff sued the driver of an automobile which hit the plaintiff's automobile from behind for negligence. Suanez v. Egeland, 353 N.J.Super. 191, 194, 801 A.2d 1186, 1188 (N.J. Super. Ct. 2002). The defendant sought to proffer testimony of an expert that the collision between the defendant's car and the car that the plaintiff rode in did not

In New Jersey, scientific evidence is admissible in a civil case if "it derives from a reliable methodology supported by some expert consensus." State v. Harvey, 151 N.J. 117, 168, 699 A.2d 596 (1997) (citations omitted). Moreover, there are three ways that a party offering the results of scientific evidence can demonstrate its reliability: (1) the testimony of knowledgeable experts; (2) authoritative scientific literature; and (3) persuasive judicial decisions. Id.

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involve sufficient force to have caused the plaintiff's herniated disc. Id. at 195-196, 801 A.2d at 1188-1189. The New Jersey Superior Court held that the proffered expert testimony was

inadmissible because the expert had not personally conducted or observed the tests of lowimpact collisions on humans; his knowledge derived solely from literature in the field; and the expert was not a physician or medical researcher. Suanez, 353 N.J.Super. at 196, 801 A.2d at 1189. Distinct from the expert proffered in Suanez and as stated above, Dr. Cooperrider will not testify as to specific medical causation in the case at bar. Moreover, Dr. Cooperrider did personally conduct and observe the tests which form the basis for his opinions utilizing the generally accepted consensus methodology for acquiring and analyzing whole-body vibration and repeated shock exposure. See Cooperrider Expert Report, passim. Finally, Robb v. Burlington Northern Railway is distinguishable from the case at bar. In Robb, the defendant sought to proffer the expert testimony of a mechanical engineer to testify that the railway accident involving the setting of a brake could not have occurred in the manner in which the plaintiff alleged because of the timing of the incident. Robb v. Burlington Northern Railway, 100 F.Supp.2d 867, 872 (N.D. Ill.2000). The basis for the expert's opinion consisted of a simulation of the braking procedure and calculation of the amount of time it would take the train to reach the plaintiff. Id. at 872-873. The Court excluded the expert's opinion because it was not based on reliable methodology but rather on "an ad hoc set of unexamined assumptions drawn in part from the record, in part from a reconstruction of unexplained value, and in part from nothing at all." Robb, 100 F.Supp.2d at 873-874. The Court further reasoned that the expert failed to show that his biomechanical analysis was testable, subject to peer review or publication or what its rate of error was. Id. at 874. In stark contrast, as explained at length

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above, Dr. Cooperrider's testimony meets all of the Daubert factors. It is based on the generally accepted methodology for measuring and assessing exposure to whole body vibration and repeated shock, this method has been subject to peer review, has been tested, and there are standards controlling the technique's operation. As such, Dr. Cooperrider's opinions and

conclusions are scientifically reliable and admissible in the case at bar. D. Plaintiff wrongly asserts that Dr. Cooperrider's opinion is inadmissible because it is not based on epidemiologic studies.

Dr. Cooperrider never claimed that the ISO and ANSI Standards are epidemiologic literature. Rather, ISO 2631-1 and ISO 2631-5 represent a consensus interpretation of the epidemiologic literature examining the association between whole body vibration and repeated shock and adverse health effects on the lumbar spine. Moreover, Rule 702, Daubert and its progeny do not require that all experts engage in epidemiologic research. The Daubert factors are clear. To determine the scientific validity of an expert's opinion court's should examine (1) whether the expert's theory or technique can be or has been tested; (2) whether the expert's theory or technique has been subject to peer review and publication; (3) whether the rate, or potential rate of error, is known, and whether there are standards controlling the technique's operation; and (4) whether the expert's methodology is "generally accepted" in the relevant scientific community. Daubert, 509 U.S. at 593-94. As explained at length above, the ISO and ANSI are the generally accepted methods for instrumentation, data acquisition, data processing, data analysis and data reporting of human exposure to whole body vibration and repeated shock. Moreover, these methods have been tested, subjected to peer review and there are standards controlling the technique's operation. Further, Plaintiff's assertion that the ISO Standards are not founded on any epidemiologic data is incorrect. Both Part - 1 and Part - 5 of the ISO Standard reference partial bibliographies

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of the scientific literature, including specific epidemiological literature, upon which the consensus standards are based. See ISO 2631-1, Annex E; ISO 2631-5, Bibliography. In addition, Plaintiff's argument that there is no generally accepted "no observed effect level" for human exposure to whole body vibration is misleading. See Cooperrider Affidavit at para. 28. While it is true that specific, cumulative dose-response relationships are unknown, and further, that the epidemiologic evidence for any association, let alone a causal association, between whole body vibration and repeated shock exposure and adverse health effects of the lumber spine, is weak, the ISO Standards provide ranges within which exposure by consensus is assumed to be important. Id.; see also ISO 2631-1, ISO 2631-5. As stated above, below the lower boundary of the health guidance caution zones or health limits described in Parts 1 and 5 of the ISO Standard, health effects have not been objectively observed or documented (a "no observed effect level"). Id. Above the upper boundaries, health effects are probable for most vibration exposed persons. Id. Between the lower and upper boundaries, the relative risk of an adverse health outcome is assumed to be increasingly elevated, but the precise rate at which risk increases is uncertain. Id. In all but a few cases, measurements of exposure conducted by either Dr. Cooperrider or Dr. Johanning have been below the lower boundaries provided by the ISO Standards, and never above the upper boundaries. Cooperrider Expert Report. See Cooperrider Affidavit at para. 28;

None of this suggests that Dr. Cooperrider should ignore the

guidance provided in the ISO standards in favor of the speculative theories advanced by Plaintiff. Finally, Plaintiff's reliance on Norris v. Baxter Healthcare Corporation, as support for the contention that Dr. Cooperrider's testimony is unsupported by any epidemiology studies and as such must be excluded, misses the mark. In Norris, the plaintiff sued the manufacturer of silicone breast implants for negligence, breach of warranty, and strict liability alleging that the

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implants caused her to develop systemic autoimmune disease and local injury. Norris v. Baxter Healthcare Corporation, 397 F.3d 878 (10th Cir. 2005). The Tenth Circuit Court of Appeals affirmed the trial court's exclusion of the plaintiff's proffered experts. The Court held that the plaintiff's proffered expert testimony was scientifically unreliable because the experts ignored or discounted without explanation epidemiological studies which found no proven link between silicone implants and systemic disease, and instead relied on clinical case studies and differential diagnosis. Id. at 884. Unlike the experts in Norris, Dr. Cooperrider acknowledges and relies on the epidemiological literature which finds that where whole body vibration and repeated shock exposures fall below a given level, the health effects have not been clearly documented and/or objectively observed. It is this very scientific literature which forms the basis for the consensus ISO Standards which Dr. Cooperrider utilizes for his analysis in the case at bar. See ISO 2631-1, Introduction, and Annex E; ISO 2631-5, Bibliography. In fact, it is Plaintiff's experts, who entirely ignore the objective scientific data which indicates that in the case at bar the whole body vibration and repeated shock exposure levels fall below levels at which any deleterious health effects have ever been objectively observed. E. Despite Plaintiff's assertions to the contrary, the opinions expressed in Dr. Cooperrider's Affidavit in Support of Defendant's Motion in Limine to Exclude Expert Testimony of Eckardt Johanning, M.D., M.Sc. are not intended to supplement Dr. Cooperrider's expert report in the case at bar.

Dr. Cooperrider's Affidavit filed in Support of Defendant's Motion in Limine to Exclude Expert Testimony of Eckardt Johanning, M.D., M.Sc. is not intended to supplement Dr. Cooperrider's expert report in the case at bar. Thus, despite Plaintiff's assertions to the contrary, Plaintiff's references thereto in Plaintiff's Motion to Exclude Dr. Cooperrider are completely irrelevant.

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F.

Plaintiff contorts the language of ISO 2631-1 and wrongly applies it to Dr. Cooperrider's ISO 2631-5 analysis.

Plaintiff alleges that in Dr. Cooperrider's Affidavit attached in Support of Defendant's Motion to Exclude Plaintiff's Expert Testimony of Eckardt Johanning, he omits sections of the ISO 2631 Standard in an attempt to "cover up" the fact that his opinions are inadmissible. Plaintiff's assertions are simply wrong. Dr. Cooperrider's Affidavit focuses on ISO 2631-5 because Johanning's opinions and analysis focused on ISO 2631-5. As such, Dr. Cooperrider, addressing this particular issue, had no reason to provide the Court with ISO 2631-1. Moreover, as stated above, Dr. Cooperrider's Affidavit attached in Support of Defendant's Motion to Exclude Plaintiff's Expert Testimony of Eckardt Johanning is not intended to supplement his opinions in the case at bar as provided in his Expert Report. Finally, ISO 2631-1 and ISO 26315 are two distinct standards providing two distinct methods of analysis. As such, language from one part cannot be transcribed to apply to analysis conducted pursuant to the other part. See Cooperrider Affidavit.

G.

Plaintiff's assertions of statements made by Dr. Stanley Bigos and Donald Wasserman speak to the weight not the admissibility of Dr. Cooperrider's opinion in the case at bar.

Plaintiff asserts statements made by Dr. Stanley Bigos and Donald Wasserman in support of his motion to exclude Dr. Cooperrider. However, these statements are not sufficient evidence to exclude Dr. Cooperrider's testimony. Donald Wasserman's statement in a deposition in an unrelated case amounts to nothing more than speculation. Dr. Cooperrider disagrees with the statement made by Donald

Wasserman that the human exposure guidelines provided in the International Standard are somehow resultant from "politics." See Cooperrider Affidavit at para. 13. Moreover, neither

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Plaintiff, nor Mr. Wasserman provide any objective proof to support these statements. The technical sub-committees are, generally, august bodies comprised of technical experts from each member nation. See Cooperrider Affidavit at para. 13; ISO 2631-1, Foreword. The adoption of exposure limits in the 1985 ISO 2631 resulted from the agreement of a consensus (as defined by ISO) of these experts. Id. Incidentally, it is also clear from Wasserman's deposition testimony that he was testifying about the 1985 edition of the International Standard, which is irrelevant to this matter because it was superseded by the 1997 edition of the International Standard and Part 5 of the International Standard, adopted in 2004. Id. Wasserman in his testimony agrees that the more recent standards do not have exposure limits, but instead have health caution zone guidelines unrelated to the exposure limits (Wasserman, pg 77), Wasserman's testimony simply does not address contemporary scientific opinion on the relevant subject matter. Id. Moreover, with respect to the testimony of Dr. Stanley Bigos, this testimony was proffered in an entirely unrelated case where neither Defendant, nor Plaintiff, were parties to the action. Moreover, Dr. Bigos' statement taken in context supports Dr. Cooperrider's opinions and reliance on the ISO Standards. See Defense Exhibit "F," Deposition of Dr. Stanley Bigos, September 16, 2005, at pages 46-52, attached hereto. The following exchange is particularly illustrative: Q. ... Q. A. Is the standard a health guidance standard? Well, part ­ they've used the term ­ I mean, they've used the term health guidance in some of their terminology, but I don't know exactly what your making reference to. Is the ANSI Standard basically a consensus standard? What's your understanding of the ANSI whole-body vibration guidelines and standards?

Q.

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A. Q. A.

Yes. Is it based on any scientific studies to determine an injury threshold? It's ­ My understanding is that it's more of a standard to guide safety issues as it relates to the limited amount of information that we have in certain areas. It's not a bright line so that if you're above the standard you're safe and ­ or you're dangerous and if you're below the standard you're not? I think it's pretty conservative. They've tried very hard to make sure that if they're going to error ­ in fact, that's how they even termed it themselves--they've erred on the side of being too cautious, and they tried to deal with things like the health guidance caution zone stating that under a certain level there doesn't seem to be any risk and above a certain level that risks are probable and possible and within that they really don't know but it's part of their fudge to be as conservative as possible.

Q.

A.

Id. at 50-52. CONCLUSION In conclusion, Dr. Cooperrider's opinions in the case at bar are scientifically reliable and admissible at trial. Dr. Cooperrider's proffered testimony satisfies the relevant Daubert factors. Dr. Cooperrider utilizes ISO 2631-1 and 2631-5 as his methodology for instrumentation, data acquisition and processing, data reporting, and data interpretation in his analysis of the case at bar. These Standards represent the generally accepted methodology in the field of physical engineering in relation to the measurement of whole body vibration and repeated shock. These methodologies have been subjected to peer-review and publication, the methodologies have been tested, and there are standards controlling the techniques' operation. These Standards satisfy the Daubert factors and Dr. Cooperrider scrupulously adheres to the methodologies established in the ISO Standards. See Daubert, 509 U.S. at 593-94. Accordingly, Dr. Cooperrider's

conclusions in the case at bar are scientifically reliable and admissible.

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WHEREFORE, Defendant, Union Pacific Railroad Company, requests that this Court deny Plaintiff's Motion In Limine To Exclude the Testimony of Neil K. Cooperrider. In the alternative, Defendants request that a hearing be held pursuant to Federal Rule of Evidence 104(a) in order to provide full consideration of these issues. DATED: October 20th 2005. Respectfully submitted, _s/Mark C. Hansen_______ MARK C. HANSEN Union Pacific Railroad Company 1331 17TH Street, Suite 406 Denver, CO 80202 (303) 964-4583 FAX: (303) 964-4585

Donald C. Sinclair, II Sinclair Kelly Jackson Reinhart & Hayden, LLC 501 Corporate Drive, Suite 200 Canonsburg, PA 15317 (724) 873-8660 Attorneys for the Defendant UNION PACIFIC RAILROAD COMPANY

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CERTIFICATE OF SERVICE I hereby certify that on this 20th day of October, 2005, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: [email protected] Sabina Y. Chung, Esq. Jack D. Robinson, Esq. SPIES, POWERS & ROBINSON, P.C. 1660 Lincoln Street, Suite 2220 Denver, CO 80264 Fredric A. Bremseth, Esq. Thomas W. Geng, Esq. BREMSETH LAW FIRM 810 East Lake Street Wayzata, MN 55391 Donald C. Sinclair, II Sinclair Kelly Jackson Reinhart & Hayden, LLC 501 Corporate Drive, Suite 200 Canonsburg, PA 15317 (724) 873-8660

[email protected]

[email protected]

I certify that there are no non CM/ECF participants in this case.

_s/Mark C. Hansen_______ MARK C. HANSEN Union Pacific Railroad Company 1331 17TH Street, Suite 406 Denver, CO 80202 [email protected]

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