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

Case 1:04-cv-00560-OES-BNB

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

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

Civil Action No.: 04-cv-00560-OES-BNB

PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION IN LIMINE TO EXCLUDE DOCUMENTARY EVIDENCE ­ THE "STANDISH CORRESPONDENCE" Defendant seeks a court order forbidding plaintiff to refer to the "Standish Correspondence" (a letter from Tim Standish, General Motors Electro-Motive Division (EMD) dated March 9, 2004, and the underlying data summarized in the letter), which pertains to defendant's removal of airsuspension seats from its locomotives. (The "Standish Correspondence" is actually only one letter, accompanied by seat comparison tests performed by the locomotive manufacturer, EMD.) Defendant's motion is based on the false premise that plaintiff plans to use seat comparison testing data to "prove that defendant should have equipped locomotives operated by plaintiff with active air suspension seats to diminish plaintiff's exposure to whole body vibration." Defendant's motion is based on out-of-context excerpts from the deposition of Eckhart Johanning, who saw some of the underlying data on the morning of his deposition. Defendant claims that the data is unreliable because it was not compiled using ISO whole-body vibration test protocols. Defendant wants a court order forbidding mention of the Standish letter and tests "for any purpose whatsoever at trial, since the information is scientifically unreliable." Defendant neglects to inform the Court that Union Pacific, through its locomotive vibration expert Neil K. Cooperrider used this data as a basis for its business decision to remove air-ride seats

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from its fleet of locomotives. According to Greg Pietruszynski, defendant's 30(b)(6) representative most knowledgeable about seating and air-ride seats, Cooperrider analyzed this data (also known as the "EMD data"), and made recommendations to UP management. At page 121 of his deposition, Mr. Pietruszynski testified as follows: Q. So based on Mr. Cooperrider's analysis, you have decided not to use air-ride seats or remove air-ride seats? A. Not just alone on his analysis, but also with our experience that we've had with them. These are high maintenance seats, and durability of the seats come in question. It is a more complex seat, and based upon our experience that we've had along with Mr. Cooperrider's response to the EMD data. (Affidavit of Keith Ekstrom, Exhibit A.) This data was previously the subject of plaintiff's motion to compel production in a parallel case in Denver District Court, Vogt v. Union Pacific, Case No. 03-CV-5832, Courtroom 2. The Vogt court granted the motion to compel on or about May 1, 2005 (Ekstrom Aff. Ex. B). Some background information should further clarify why this evidence pertaining to Union Pacific's experience with air-ride seats is so important. In 1999, Union Pacific and Canadian Pacific railroads entered into a joint venture to operate locomotives between the United States and Canada. (Ekstrom Aff. Ex. A, p. 115.) Canadian Pacific utilizes Knoedler air-ride seats in all of its

locomotives. (Ekstrom Aff. Ex. C.) Air-ride seats were installed on a fleet of 40 jointly operated locomotives leased by UP and CP from CIT, which were utilized in U.S./Canadian service in 1999. In 2004, shortly after this lawsuit was filed, Union Pacific allegedly received numerous crew complaints about the air-ride seats, and therefore UP requested CIT and locomotive manufacturer EMD to do testing of the seats (Ekstrom Aff. Ex. A, p. 116). The testing was not performed to address any concerns pertaining to vibration. Rather, The sole purpose of this testing was to provide you with information concerning the difference in amplification between the underside of the seat and the seat base for different seats, which an occupant may feel. The data collected and detailed below does not provide insight to nor translate into actual crew comfort or locomotive ride

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quality data, but does provide a measurable way to compare the difference in amplitudes between different seat and seat base designs. (Standish Correspondence, March 9, 2004.) In his deposition, Dr. Johanning testified that the measurement of human exposure to whole body vibration and shocks is typically performed using ISO standards. This is the standard utilized by Dr. Johanning when he tests, but as Dr. Johanning testified: A. For my purpose of testing, yes, but I don't think that was the purpose of this testing. Q. A. All right. I don't want you to speculate about this, sir. No. The document speaks for itself. It says what it's used for.

(Ekstrom Aff. Ex. D.) According to documents produced by defendant at Mr. Pietruszynski's deposition, UP reviewed the EMD test results. According to Mr. Pietruszynski's memo: We agreed to have a conference call with our ergonomic consultants to discuss EMD test protocol of four seats today. EMD was not able to provide all information our consultants were looking to clarify. EMD/CIT/UPRR participated in the call. Based on all information we have to date on Knoedler and USSC seats, the urgency to get this resolved, UP ergonomic consultants along with myself agreed changing to USSC is still the correct approach. Canadian Pacific did not come to the same conclusions: Pietruszynski goes on to state that after reviewing the same test data, Canadian Pacific was not willing to change from the Knoedler air-ride seats. (Ekstrom Aff. Ex. E.) Over the next two months, UP negotiated with CIT and Canadian Pacific about removing the air ride Knoedler seats, which were summarized in an e-mail from CP dated May 10, 2004, acknowledging UP's decision to pull the air-ride seats out of the locomotives: UP has not considered a design change to the base as offered by Knoedler, based on a recommendation from your legal department. The recommendation was made in order to avoid any potential future liabilities from a safety perspective. We also understand Knoedler has met with your team at Hinkle to further discuss immediate seat improvements and material is available to upgrade the bases in a short time frame should you reconsider. CPR currently uses Knoedler seats on all new AC

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locomotives . . . . We currently do not have the same issue with Knoedler seats as reported by UP, and there is no immediate plan of CP to change or go to a USSC model (non air-ride) at this time. (Ekstrom Aff. Ex. C.) Plaintiff's expert, William Muzzy, devoted three pages of his report to reviewing documents and testimony pertaining to UP's decision to remove air-ride seats from locomotives based on EMD test results as reported in the Standish Correspondence. (Muzzy Report, pp. 9-11.) Muzzy

acknowledges that the seat comparison testing was not performed in compliance with ISO standards for testing human response to whole body vibration, yet UP utilized the data in making an important business decision to jettison air-ride seats. Mr. Muzzy reports: A letter from Union Pacific's director of purchasing, Ms. Watson, to CIT vice president Mr. Watson, states that based on tests performed by an independent third party, UP was requesting that the existing Knoedler seats and bases be replaced with USSC seat model 9010. It is unclear which report Mr. Watson is referring [to], but if it is the EMD report dated March 9, 2004 [Standish Correspondence], then their decision was based on limited tests that show Knoedler seats with the new design base was the best with compared with the Seat, Inc.'s seat. No comparison was made with the USSC seat model 9010. (Ekstrom Aff. Ex. F, p. 10.) From reviewing the Standish letter, UP's utilization of the data, the history of testing, and UP's conduct in removing air-ride seats from its locomotives, Muzzy concludes that "this communication shows that engineering decisions for safety and ride quality are being made in the legal department." The Standish letter also documents maintenance problems with the Knoedler seats. In

December 2004, Mr. Muzzy personally went to Hinkle, Oregon, and inspected, videotaped and photographed several Knoedler air-ride seats that were still in a Union Pacific-operated locomotive. His inspection documents that problems with Knoedler seats were caused by poor maintenance. Muzzy's site visit corroborates Tim Standish's inspection in the Standish Correspondence, where Mr. Standish states:

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The seat [Knoedler seat] itself has not changed. In the past, the seat back joint becomes extremely loose and requires regular maintenance. The same goes for the arm rests. If maintenance is not performed these parts will rapidly wear out. When the full context is understood, it becomes very clear that the Standish letter, the underlying EMD test data, and Union Pacific's response to it, are very damaging to UP's defense. In particular, UP has claimed that air-ride seats are not suitable for use in its locomotives. What was the scientific basis for this decision? The EMD test results. Union Pacific now argues that this evidence should be kept out because "[i]t cannot be established to a reasonable degree of scientific precision that the testing is valid and reliable." (Def.'s Brief, p. 11). The Standish letter and the EMD seat comparison tests are relevant to a wide variety of issues in the case. Context is very important, and evidence may be admissible for more than one purpose, including rebuttal. The party moving for a motion in limine bears the burden of proving that the

challenged evidence is inadmissible on any ground. Starling v. Union Pacific Railroad Co., 203 F.R.D. 468, 482 (D. Kan. 2001) (citing Plair v. E.J. Brach & Sons, Inc., 864 F.Supp. 67, 69 (N.D. Ill. 1994). Trial courts should exclude evidence in limine only when evidence is clearly inadmissible on all potential grounds. Unless this high standard is met, evidentiary rulings should be deferred until trial so that questions of foundation, relevancy and potential prejudice may be resolved in proper context. Hawthorne Partners v. AT&T Technologies, Inc., 831 F.Supp. 1398, 1400 (N.D. Ill. 1993). Motions in limine seeking to exclude broad categories of evidence should rarely be granted; the better practice is to address questions over the admissibility of evidence as issues arise at trial. Sperberg v. Goodyear Tire & Rubber Co., 519 F.2d 708, 712 (6th Cir.), cert. Denied, 423 U.S. 987, 96 S.Ct. 395, 46 L.Ed.2d 303 (1975); Hunter v. Blair, 120 F.R.D. 667 (S.D. Ohio 1987). In limine rulings are preliminary: "An in limine evidentiary ruling does not constitute a final ruling on admissibility . . . . Th[is] rule is a practical one. There is no reason to spend scarce judicial resources reviewing a decision that may be

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changed due to developments at trial." Palmieri v. Defaria, 88 F.3d 136, 139 (2nd Cir. 1996) (citation and internal quotations omitted). "[A]ny possible harm flowing from the in limine ruling is wholly speculative because a trial court, exercising sound judicial discretion, may always alter such rulings as the case unfolds." United States v. Nivica, 887 F.2d 1110, 1116 (1st Cir. 1989); see also Luce v. U.S., 469 U.S. 38, 41 (1984) (providing that an in limine ruling is "subject to change when the case unfolds, particularly if the actual testimony differs from what was contained in the [movant's] proffer.). CONCLUSION Defendant's motion should be denied. The Standish letter, the seat comparison tests, and defendant's conduct in removing air-ride seats are relevant to multiple issues in the case, and any deficiency in testing can be addressed through testimony at trial.
Respectfully submitted, BREMSETH LAW FIRM, P.C.

By: s/ Fredric A. Bremseth Fredric A. Bremseth (#11149) Keith E. Ekstrom (#181808) 810 East Lake Street Wayzata, Minnesota 55391-1839 (952) 475-2800 And SPIES, POWERS & ROBINSON, P.C. Jack D. Robinson, #22037 1660 Lincoln Street, Suite 2220 Denver, Colorado 80264 303-830-7090 Attorneys for Plaintiff

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CERTIFICATE OF SERVICE I hereby certify that on this 19th 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] Mark C. Hansen Union Pacific Railroad Company 1331 17th Street, Suite 406 Denver, Colorado 80202 Fredric A. Bremseth Bremseth Law Firm 810 East Lake Street Wayzata, Minnesota 55391 Sabina Y. Chung Jack D. Robinson Spies, Powers & Robinson, P.C. 1660 Lincoln Street, Suite 2220 Denver, Colorado 80264

[email protected]

[email protected]

I certify that there are no non-CM/ECF participants in this case. BREMSETH LAW FIRM

By: /s Rebecca S. Martinson

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