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 GEORGE M. BULL, Plaintiff, vs. UNION PACIFIC RAILROAD COMPANY, a corporation, Defendant. PLAINTIFF'S BRIEF IN OPPOSITION TO DEFENDANT'S MOTION IN LIMINE TO EXCLUDE PLAINTIFF'S EXPERT WITNESS TYLER KRESS, Ph.D. Defendant seeks to preclude expert Tyler Kress, Ph.D., from testifying about causation because he did no testing, measurements, or epidemiologic research. The problem with Civil Action No.: 04-ES-0560 (BNB)

defendant's motion is that Dr. Kress is not a causation witness ­ he is a negligence witness. Essentially, he will testify that defendant knew there was a problem with its seats and locomotives, and did nothing. More specifically, Dr. Kress's report discloses that he will testify about three subjects: 1. It has been known for many years that occupational exposure to whole body vibration can cause back injuries; Defendant was aware that its rough riding locomotives and poor seats exposed employees to unreasonable risk of injury; and Defendant took inadequate ergonomic measures to improve ride quality, improve seats, or educate workers about the dangers of whole body vibration.

2.

3.

Dr. Kress's opinions are based primarily on the extensive Union Pacific internal documents listed in the "references" section of his report. These documents are summarized in more detail in the Topical Index of Documents utilized by plaintiff's experts. (See index attached to Kress' affidavit as Exhibit A for contents of documents.)

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INTRODUCTION In all of the sound and fury about the Daubert case, defendant has overlooked Federal Rule of Evidence 702, which is the touchstone for admissibility of expert testimony. Rule 702 provides: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of 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. It is important to realize at the outset that the Daubert case, as well as all the cases cited by defendant, are concerned with the reliability of scientific testimony about causation. Three of the cases cited by defendant involve causation testimony about toxic torts, while all of the others involve causation opinions about carpal tunnel syndrome. Dr. Kress is not testifying about causation. The "factual background" section of defendant's brief is highly distorted and inaccurate. Defendant has taken isolated, out of context snippets from the deposition taken by defendant's Daubert attorney, Donald Sinclair. Defendant completely ignores Dr. Kress's report, and the extensive body of Union Pacific documents upon which it is based. For example, defendant argues that "Dr. Kress bases his opinions on vague references to prior reviews of whole body vibration data collected by Eckhardt Johanning, M.D.," citing Kress's deposition at page 99. Dr. Kress said nothing of the kind at page 99 or anywhere else in his deposition. In fact, at pages 114-123, Dr. Kress shows a familiarity with many different publications about vibration-induced injury. An extensive bibliography for these scientific

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publications is contained at the end of both the ISO and ANSI vibration standards. (Kress Affidavit, Exhibits B and C.) Defendant falsely states that Dr. Kress admitted that prior studies show that negative health effects from locomotive vibration have never been demonstrated. Defendant cites the Kress deposition at page 114-115 for the following argument: Dr. Kress admits that the whole body vibration and repeated shock levels in prior studies fall below the "Health Caution Guidance Zone" established in the International Standards Organization at 2631.1 . . . which means that negative health effects at that vibration level have not been clearly documented and objectively observed. There is nothing in Dr. Kress's deposition about lack of documentation of health effects at any vibration exposure level. In fact, the ISO standards cited by defense states in no uncertain terms that: There are not sufficient data to show a quantitative relationship between vibration exposure and the risk of health effects. Hence, it is not possible to assess whole body vibration in terms of the probability of risk in various exposure magnitudes and durations. In fact, Annex E to the ISO 2631 cites 57 scientific studies providing evidence that whole body vibration can cause injury. Included among these studies are epidemiologic studies of crane operators, helicopter pilots, tractor drivers, forklift truck operators, freight container tractor drivers, urban bus drivers, agricultural tractor drivers, interstate truck drivers, and motor coach operators. Since the time that standard was published, plaintiff's expert, Dr. Eckhardt Johanning, as well as other researchers, have conducted further studies establishing an epidemiological association for locomotive engineers and conductors. At page 4 of defendant's brief, defendant falsely implies that Dr. Kress is a quack, arguing that he cannot cite any epidemiologic literature about locomotive engineers, vibration and low back pain. In fact, Dr. Kress testified: "I reviewed epidemiological data, engineering,

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biomechanical, medical, ergonomic, a tremendous amount of literature on the subject, i.e., low back pain and vibration and repeated shock, you know, over the years, and relied on it." At page 77 of the deposition, defense counsel asked Dr. Kress to cite chapter and verse, and his response was "No, I can't, not off the cuff, anything of that nature." Defendant's characterization of this response is at best misleading. Finally, at page 3, and elsewhere, defendant falsely implies that Dr. Kress plans to testify about causation despite the fact that he did no testing, has no quantifying data about locomotive vibration, no photographs, or seat inspection. In his deposition, Dr. Kress stated in no uncertain terms that he would not testify that the magnitude of exposure which Mr. Bull experienced caused adverse health outcomes. (Pages 80-83.) Finally, defendant falsely states that Dr. Kress never took any photographs or even inspected the type of locomotive seats utilized by plaintiff. In fact, Dr. Kress testified he has done numerous inspections of locomotives of the same model and type that Mr. Bull operated, which include the rough riding and dangerous SD60s and SD90s that have injured so many other workers. (94-95) He inspected USSC brand seats in SD60 locomotives, and has taken

photographs of those seats in the past. "I've been on locomotives and seen these type of seats and taken photographs of them. . . I've made many diagrams of seats in the past from inspections and examined these very issues that I'm expressing opinions on with respect to the contours and dimensions." (96-97.) It is important to realize that Mr. Bull operated hundreds, if not

thousands, of different locomotives over the course of his 35 year career, with many different seat configurations, including thinly padded armless stools (called "toadstools"). Additionally, plaintiff has retained seat expert William Muzzy, who traveled to Oregon and, with defense

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counsel present, spent a whole day inspecting seats on Union Pacific locomotives, including videotape and photographs. ARGUMENT The cases cited by defendant are not on point ­ each and every one of them cited at pages 6-8 of defendant's brief involve experts testifying about causation. In each case, the expert was excluded for one of two reasons: (1) there was no science indicating that the exposures/work conditions could cause plaintiff's injuries (general causation); or (2) there was no factual data for the expert to base his opinion on (specific causation). For example, in Lovato v. Burlington Northern, 2002 WL 1424599 (D. Colo. 2002), there was no published literature supporting the expert's conclusion as to a causal connection between ATV vibration and injuries to the cervical spine, or any published articles relating to buckling or unbuckling of air hoses. In Magdaleno v. BNSF, 5 F.Supp.2d 899 (D. Colo. 1998), a carpal tunnel case, the court held that plaintiff's ergonomic expert could testify that four risk factors contributed to cumulative trauma disorders ­ repetition; joint deviation; force; and vibration (general causation). As in the present case, there were numerous epidemiologic studies showing a correlation between these four factors and cumulative trauma injuries. Plaintiff's expert, however, was not allowed to testify that

Burlington Northern's repair facility caused the plaintiff to incur CTS, because he was not a physician, and did not document the magnitude, frequency and duration of stressors and compare them to known human exposure limits. Pretter v. Metro North Commuter Railroad, 206

F.Supp.2d 601 (D. NY 2002), was a case where 15 employees claimed carpal tunnel syndrome. Plaintiff's expert made no effort to analyze the job site, yet was prepared to testify that the workers were exposed to sufficient risk factors to cause carpal tunnel syndrome. The expert's

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opinion was based entirely upon anecdotal statements. testimony.

The court excluded his causation

The other cases cited by defendant are even less on point. In Williams v. Burlington Northern, 13 F.Supp.2d 1125 (D. Kansas 1998), plaintiff's own expert admitted that he lacked the necessary data to form an opinion. Additionally, plaintiff failed to present even the slightest evidence of negligence, and could cite no evidence to establish the railroad's knowledge of studies involving carpal tunnel syndrome risk factors. In Dukes v. Illinois Central, 934 F.Supp. 939 (D. Ill. 1996), plaintiff's expert physician was not allowed to testify that the plaintiff's work in carrying oil cans, signal lights and other objects caused carpal tunnel syndrome. The expert could point to no scientific studies, and he had no background in ergonomics. Additionally, the court held that plaintiff could not establish negligence due to lack of any evidence of foreseeability. In Zarecki v. National Railroad Passenger Corporation, 914 F.Supp. 1566 (D. Ill. 1996), the plaintiff was a reservation ticket agent. Plaintiff's physician did not indicate that the defendant's office equipment or her manner of using the equipment was unsafe. Rather, he only concluded her condition was caused by her job. There was no evidence of negligence, specific tasks which caused injuries, or scientific support. In Stasior v. National Railroad Passenger Corp., 19 F.Supp.2d 835 (N.D. Ill. 1998), the carpal tunnel plaintiff's job involved low force and low repetitions. The medical authorities and epidemiologic studies only showed that high force, high repetition tasks caused such injuries. The expert witness was excluded because he could not show any scientific or epidemiological studies showing that low force low repetition occupations have ever been associated with carpal tunnel syndrome.

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The other four cases cited by defendant involve exposure to toxic chemicals, and lack of scientific evidence that the chemicals caused health problems. In Mitchell v. Gencorp, 165 F.3d 778 (10th Cir. 1999), there was scientific evidence linking benzene exposure to acute leukemia, but no evidence that the plaintiff had even been exposed to benzene, and no scientific evidence that chronic myelogenous leukemia could be caused by chemical exposure. In Schmaltz v. Norfolk & Western, 878 F.Supp. 1119 (D. Ill. 1995), plaintiff's physician testified that herbicides caused plaintiff's lung disease, but admitted that his testimony was based exclusively on "temporal congruity between Mr. Schmaltz' alleged exposure and onset of his symptoms." The expert could identify no scientific studies or literature showing health hazards with the herbicides atrazine or tebutherunron. In fact, scientific studies showed that these chemicals were not toxic to humans. In Goebel v. Denver & Rio Grande Western Railroad, 215 F.3d 1083 (10th Cir. 2000), the plaintiff claimed brain damage due to diesel exhaust exposure. The case was

remanded because the district court failed to perform Daubert analysis before admitting expert testimony linking the exposure to brain damage. In remanding, the Tenth Circuit stated: "We express no opinion on whether Dr. Teitelbaum's testimony was admissible under Daubert and Kumho." In Claar v. Burlington Northern Railroad, 29 F.3d 499 (9th Cir. 1994), the 27 plaintiffs claimed a wide variety of health problems due to exposure to a wide variety of chemicals over many years at Burlington Northern's Livingston, Montana shop. Plaintiff's expert physicians failed to perform a differential diagnosis, and failed to provide any scientific basis for their causation conclusions. In fact, , plaintiffs' experts signed causation affidavits prior to reviewing any literature, and violated the court's order requiring the expert to describe specific chemical

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exposures, specific injuries, and the particular chemicals that in the physician's opinion caused each injury, along with the scientific basis for the physician's conclusions. Defense counsel (and not defendant's experts), argue that unless plaintiff can come up with some scientific vibration testing evidence showing that one or more Union Pacific locomotives exceeded the ISO health guidance caution zone, plaintiff's experts cannot testify. As the ISO standards themselves state, it is not even possible to assess the likelihood of risk of injury at various exposure magnitudes. In fact, defendant's expert Gregory Weames' reports that ANSI exposure thresholds are just guidelines, and admits that it is not possible to assess the probability of risk of various magnitudes or durations of vibration exposure (Weames 12/12/04 expert disclosure report). Dr. Kress's Report and Testimony Satisfies Rule of Evidence 702 The first step under Rule 702 is to determine whether the witness qualifies as an expert by knowledge, skill, experience, training or education. This prong is satisfied by Dr. Kress's resume, and the summary of his qualifications at page 1 of his report. He is a board-certified industrial ergonomist, and has testified in dozens and dozens of FELA cases, including 16 cases where UP was a defendant. He has authored numerous publications on the biomechanics of work injuries, he has conducted ergonomic research for automobile and motorcycle manufacturers, boat manufacturers, OSHA and various other industries, organizations and corporations. He has never been disqualified as an expert. His credentials are more extensive and impressive than either of defendant's two experts. The next question is whether the testimony is based on sufficient facts or data. Dr. Kress considered a mountain of data, all of it from defendant's own files, which indicates that defendant was aware that its rough riding locomotives and poor seats were injuring workers

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since the early 1980s, and the problem got much worse in the 1990s with the purchase of newer, high horsepower SD60 and SD90 locomotives. In fact, the back injury claims due to these rough riding locomotives was so bad that Union Pacific sued the manufacturer, EMD, and has also brought EMD in as a third-party defendant in a number of cumulative trauma lawsuits brought by injured workers. Union Pacific pursued warranty claims against EMD claiming that roughriding EMD SD60, SD90 and SD9043 high horsepower locomotives were injuring workers and leading to numerous FELA claims. To save space, plaintiff will not summarize the extensive amount of facts and data considered by Dr. Kress. Those facts are summarized in Kress Exhibit A, which is an index to the documents utilized by Dr. Kress and plaintiff's other experts. The next question is whether the testimony is the product of reliable principles and methods. There are numerous ergonomic and medical publications and epidemiologic studies showing that whole body vibration experienced by locomotive engineers, truck drivers, equipment operators and bus drivers can cause back injury. Many of these articles are cited in Annex E to the ISO standards themselves, including a 1988 survey of scientific literature performed by Bongers, et al., which is attached to Kress Affidavit as Exhibit D. This survey shows that it was well known by the early 1980s that whole body vibration caused serious adverse health effects. The science of ergonomics is designed to reduce the risk of workplace injury. With respect to method, Dr. Kress references years of employee injury claims and complaints about the rough riding locomotive environment, which is also documented by data he personally has collected in the past in the locomotive environment, and data from Dr. Johanning and others. He is familiar with seat design, and has acted as a consultant for automobile manufacturers and seat manufacturers, including a manufacturer of air ride seats for trucks and locomotives.

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Dr. Kress has applied ergonomic principles and methods reliably to the facts of the case. He has concluded: (1) Given that high crest factors are present in the vibrational measurements, UP should have taken measures to ensure that their engineers are not at risk; UP was made aware of the ride problems and exposures to their crews, yet steps were not taken to appropriately address the hazards. The risk of shock and vibration associated with the locomotives in its fleet could have been economically addressed and it should have been proactive in doing so. Using airsuspension seats is just one of these cost-effective measures. The seating systems found in these locomotives are typical of industries where the driver exposure is one to two hours per day. These systems are primarily mounted on a school bus. UP did not adequately define/specify an adequate seating system for the work exposure of their engineers.

(2)

(3)

In support of this position, Dr. Kress cites literature including that the comprehensive locomotive cab seat evaluation partially funded by UP and performed in 1980 by the Association of American Railroads documenting that 40.6% of engineers reported low back pain and 90% complained about seats (Exhibit A, p. 5.) Dr. Kress is not required to design an ideal seat or cab suspension for Union Pacific. It is sufficient for him to p
oint out that Union Pacific did nothing in response to this serious ergonomic issue. In CSX

Transportation v. Miller, 858 A.2d 1025 (Maryland App. 2004), plaintiff's ergonomic expert also testified about materials published by the American Association of Railroads about risk factors for injury. Like Dr. Kress, expert Dr. Andres primarily based his testimony on

complaints made to the railroad by its employees about chronic risk factors, and concluded that the railroad did not have an ergonomic program that came up to the standard of reasonable railroad employers. Like Dr. Kress, Dr. Andres' testimony was limited to the issue of negligence and not causation.

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It is important to keep in mind that in a FELA case, plaintiff may get by with only very slight evidence of negligence. In Hahn v. Union Pacific, 860 N.E.2d 834, 841 (Ill. App. 2004), the court stated Under FELA, the plaintiff has the burden to prove negligence by the employer. . . . However, the plaintiff's burden in a FELA action is much less stringent than it would be in an ordinary negligence action. To avoid a summary judgment, Hahn was required to elicit evidence that Union Pacific's negligence played just the slightest part in producing this injury. . . . In meeting this burden, Hahn is not required to put on evidence regarding the occurrence of a specific accident, rather, under FELA, a condition that developed over the course of several years may be an injury. One aspect of the negligence claim is whether the exposure is capable of causing injury (general causation). Dr. Kress reports on general causation, not specific causation. He will testify that whole body vibration in locomotives is capable of causing injury. This is based on epidemiologic studies, and not on evidence derived from testing. Testing is not necessary in all instances to establish reliability under Daubert, particularly where no exposure limits are available. Bitler v. AO Smith Corporation, 391 F.3d 1114 (10th Cir. 2004). In Norris v. Baxter Health Corporation, 397 F.3d 878 (10th Cir. 2005), the court held that epidemiology is the best evidence of general causation in a toxic tort case. General causation is whether substance or exposure is capable of causing a particular injury or condition, and specific causation is whether substance or exposure caused a particular individual's injury. Norris at 880. In the present case, defendant is arguing that unless Dr. Kress comes up with evidence of vibration exposure exceeding the ISO health caution guidance zone, plaintiff cannot establish general causation. There is no epidemiologic evidence, or any scientific evidence, supporting defense counsel's argument that plaintiff's experts must show exposure above a numerical ISO limit, or face exclusion. In fact, using the ISO standards to predict likelihood of injury is junk science.

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Defendant's own expert, Dr. Bigos, admitted this. (See plaintiff's Daubert motion to exclude Neil Cooperrider.) Dr. Kress's testimony will be used to prove defendant's negligence. A railroad breaches its duty to its employees by failing to prove a safe working environment if it knew or should have known that it was not acting adequately to protect its employees. Urie v. Thompson, 337 U.S. 163, 174 (1949). Defendant's motion is based on the false premise that Dr. Kress is testifying about causation. He is not. He is testifying about negligent work place design, and defendant's knowledge of the risk and foreseeability of injury. He is testifying based on 25 years of historical data from defendant's own files. The thrust of his opinion is that faced with the knowledge of the workers being injured, a reasonable employer would have and should have done something about it. Instead, defendant did nothing to improve its seats, improve ride quality, or educate workers. Dr. Kress, an ergonomist, is highly qualified to testify about defendant's response to workplace safety issues.

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

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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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