Free Brief in Support of 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. PLAINTIFF'S MEMORANDUM OF LAW IN SUPPORT OF MOTION TO STRIKE TESTIMONY OF DR. NEIL K. COOPERRIDER Defendant, through its ergonomic expert, Dr. Neil K. Cooperrider, intends to present testimony that his measurements of vibration levels on Union Pacific locomotives shows that there is a very low probability of risk, and that therefore it is not likely that plaintiff was injured by locomotive vibration. This opinion is junk science and should be excluded. The ISO standards upon which Dr. Cooperrider's opinions are based unequivocally state that this testimony is not scientifically supportable: It is not possible assess whole body vibration in terms of the probability of risk at various exposure magnitudes and durations." This is exactly what defendant, through Dr. Cooperrider, is attempting to do. FACTUAL BASIS FOR MOTION Defendant's expert, Neil K. Cooperrider, has performed vibration measurements on numerous Union Pacific locomotives. Defendant intends to utilize Dr. Cooperrider and his test results to give opinions about probability of injury as follows: 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 Civil Action No.: 04-ES-0560 (BNB)

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to a lifetime of exposure to the isolated impacts at the levels measured on UP 8500. Exhibit A, p. 5. On October 7, 2005, Cooperrider prepared an affidavit indicating that he intends to go even further with this probability of injury testimony. In his affidavit, Cooperrider states that the ISO standards referred to as the "health guidance caution zone," represent state of the art knowledge on the subject of the risk of vibration exposure. In his affidavit, Cooperrider

performed a series of very complex, lengthy and arcane mathematical calculations to come to the following conclusions: (i) measurements of UP locomotives show that "there is a very low probability of adverse health effects" due to vibration, according to ISO standards; test data "establishes that the exposure to whole body vibration in defendant's locomotives is benign." (Emphasis in original.)

(ii)

(Exhibit B, pp. 13, 15.) Cooperrider attaches ISO standard 2631-5:2004 as the sole supporting document for his affidavit, and omit sections of ISO 2631 which show his opinions are unscientific. Other sections of ISO 2631 unequivocally state that probability-of-risk opinions are not supported by any science. ISO 2631-1:1997 (7.1) states: "Although a dose effect relationship is generally assumed, there is at present no quantitative relationship available." Annex B2 to the same ISO standard states: There are not sufficient data to show a quantitative relationship between vibration exposure and risk of health effects. Hence, it is not possible to assess whole body vibration in terms of the probability of risk at various exposure magnitudes and durations. (Emphasis added.) Exhibit C.

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In a prior locomotive vibration case, defendant's counsel took the deposition of Donald A. Wasserman, who was one of the ISO members who prepared the exposure limit guidelines. He is also part of the ANSI delegation which deals with whole body vibration. (See also Exhibit F, which lists him.) A copy of excerpts from his deposition is attached hereto as Exhibit D. Wasserman testified that there was no epidemiologic or medical data used to establish the exposure limits. Epidemiologic literature did not support setting exposure limits, however, for political reasons the limits were published. The exposure limits were established by the votes of a consensus of engineers and scientists and not by epidemiologic testing. There are still no epidemiologic studies available to determine the reliability of the exposure limits in the ISO and ANSI standards. The exposure limits were created by simply doubling "fatigue/decreased

proficiency level" which had previously been established by epidemiologic data. While he was at the NIOSH, Wasserman instituted four epidemiology studies to obtain more information to substantiate exposure limits. These studies were of truck drivers, bus drivers and heavy

equipment operators. These studies showed that musculoskeletal disorders were more prevalent in exposed versus non-exposed groups, but did not succeed in helping to substantiate the exposure limits. On September 16, 2005, defendant's causation expert, Stanley Bigos, M.D., testified about exposure limits in a deposition in another FELA case, Arnold v. Montana Rail Link. He testified that there is no reliable science backing the ISO exposure limits/injury thresholds for whole body vibration. (Exhibit E.) The ANSI states that the exposure limit recommendation was set at approximately half the normal threshold of pain (or "limit of tolerance") for healthy subjects strapped to a vibrating

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seat. (Exhibit F.) Neither the ISO nor ANSI reference any scientific study supporting exposure thresholds and probability of risk. Plaintiff will be unfairly prejudiced if Dr. Cooperrider is allowed to testify in this manner, and there is a substantial danger of confusion of the issues and misleading the jury in violation of FRE 403. Probability of injury and exposure limits testimony is also not relevant evidence, regardless of any statements by private safety organizations such as ISO and ANSI. ARGUMENT Introduction The main purpose for the Daubert decision and Federal Rule of Evidence 702 is to keep junk science out of the courtroom. The Court has an obligation to "ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." Daubert v. Merrill Dow, 509 U.S. 579, 589 (2003). The party advocating the expert must show that the methods employed by the expert in reaching the conclusion is scientifically sound. Dodge v. Kotter Corporation, 328 F.3d 1212, 1222 (10th Cir. Colo. 2003). Under Daubert, any step that renders the analysis unreliable renders the expert testimony inadmissible." Mitchell v. Gencorp, 165 F.3d 778, 782 (10th Cir. 1999). It is critical that the district court determine "whether the evidence is genuinely scientific, as distinct from being unscientific speculation offered by a genuine scientist." Mitchell at 783. While Dr. Cooperrider may be a scientist, his probability of injury testimony is unscientific speculation. I. ISO and ANSI Standards Cannot be Used to Predict Probability or Risk of Injury. Dr. Cooperrider's probability of injury testimony and the complex calculations that he uses to arrive at his purported conclusions are based on the ISO and ANSI standards for whole body vibration. ANSI and ISO standards are not scientific treatises based on epidemiology.

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ANSI standards are nothing more than the learned non-binding safety recommendations of a private group. Miller v. Chicago Northwestern Transportation, 925 F.Supp. 583, 590 (N.D. Ill. 1996). According to the court, the ANSI standards are "nothing more than the learned nonbinding safety recommendations of a private group" (emphasis in original). The American National Standards Institute's purpose is to ensure that any standard regarding equipment is consistent throughout the industry. Bunt v. Altec Industries, 962 F.Supp. 313, 317 (D. N.Y. 1997). In Reiff v. Convergent Technologies, 957 F.Supp. 573, 579 (D. N.J. 1997), the court stated: ANSI ­ HFS100, like defendant's internal company specifications, does not dictate health and safety standards below which products are deemed somehow unfit or unsafe. In Reiff, the court held that the fact that defendant's keyboard was out of compliance with ANSI technical standards was not evidence that could be used to establish causation, or lack of causation. Dr. Cooperrider intends to testify that there is a known dose/response relationship or threshold phenomenon. A "dose response relationship" is defined as "a relationship in which a changing amount, intensity or duration of exposure is associated with a change, either an increase or decrease ­ in risk of disease. Federal Judicial Center, Reference Manual On

Scientific Evidence, 174 (1994). "Threshold phenomenon" is "a certain level of exposure to an agent below which disease does not occur and above which disease does occur." (as quoted in Hardyman v. Norfolk & Western Railway, 243 F.3d 255, 260 (6th Cir. 2001)). The fact that there are no studies indicating a dose/response relationship for threshold level does not dispose of plaintiff's claim. Rather, epidemiology becomes the important scientific evidence regarding causation. In Hardyman v. Norfolk & Western Railway Company, 243 F.3d 255, 264 (6th Cir.

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2001), defendant's experts claimed that because plaintiff did provide a threshold level, that injury could not be deemed to occur. The court stated: The district court either failed to recognize that both Dr. Lenz and Mr. Dewees in fact did use a method of differential diagnosis in determining causation, or it simply refused to accept this method. We further recognize that it makes little sense to require a plaintiff to establish a dose/response relationship or threshold level in a situation where there has been no scientific study conducted specifically on railroad brakemen and where the dose/response relationship or threshold level will always vary from individual to individual. Such a requirement would essentially foreclose plaintiffs from recovered from CTS against negligent employers unless their particular job has been the subject of a national, epidemiological study on CTS. In Aparacio v. Norfolk & Western, 84 F.3d 803 (6th Cir. 1996), the court held that the testimony of plaintiff and his crew about repetitive vibrations and shocks to which workers were exposed was a sufficient basis for plaintiff's experts to testify about causation. "This evidence was sufficient to create a jury question as to whether Norfolk & Western's negligence may have caused, even in some small way Aparacio's injuries." II. Likelihood of Injury Testimony is Inadmissible. Courts in Colorado and other jurisdictions have consistently rejected and stricken expert testimony about the probability or likelihood of injury. For example, in Schultz v. Wells, 13 P.3d 846 (Colo. App. 2000), the court prohibited defendant's experts from testifying about threshold speeds/force injury results of rear end crash testing. The court held that evidence that there is a threshold force level below which a person probably could not be injured in a rear-end automobile collision is inadmissible. The court further found that "there is no agreement, far from it, in the engineering field or in the automobile industry concerning whether there is such a threshold of injury." The court recognized that there were one or two studies using crash test dummies, but assessed that the usefulness of presenting a probability theory to the jury would be

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confusing, misleading and unscientific. In the present case, the same danger of jury confusion and other Rule 403 grounds also justify excluding Cooperrider. In Suanez v. Egelund, 801 A.2d 1186 (N.J. 2002), defendant relied on the opinion of Lawrence Thibault, a biomechanical engineer, to present complex "delta V" (change in velocity) calculations to conclude that plaintiff's herniated lumbar disk could not have been caused by a low impact accident. The trial court let the testimony in, and on appeal, plaintiff prevailed on the argument that there was no scientific basis for Thibault's probability of injury testimony. Thibault could not identify any epidemiologic studies on the subject. The only scientific test which he referred to were either upon cadavers and military personnel under controlled conditions. Even with these tests, there was no indication that the scientific community

concluded that it was possible to draw conclusions about the physiological effects of low impact automobile accidents. The court of appeals cited a long series of cases holding that there is no reliable scientific foundation for a biomechanical expert to testify about probability of injury. Suanez at 202. In Robb v. Burlington Northern Railway, 100 F.Supp.2d 867 (N.D. Ill. 2000), the defendant railroad's expert similarly attempted to testify that human factors engineering showed that there was little or no likelihood that plaintiff was injured in the way he claimed. Like Dr. Cooperrider, this expert used complicated mathematical formulas as a smokescreen to cloak his testimony in the aura of science. The court issued a scathing criticism of this junk science at page 874: His report references a biomechanics text and a human factors book, but not for any specific propositions, much less to show that his approach to railroad accident reconstruction is reliable. He invokes a true mathematical formula, but plugs in values for the variables based on arbitrary assumptions. In addition to being unreliable, Dr. Schipplein's testimony is not helpful. If the railroad wishes to argue that the accident did not or could not have happened as Mr. Robb contends

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on the basis of the deposition testimony of various fact witnesses, which is the only admissible evidence basis in the record for this conclusion, the jury can evaluate this argument without the spurious precision of Dr. Schipplein's report and the misleading glow of his impressive but irrelevant academic credentials. I hold that Dr. Schipplein's approach is unreliable and unhelpful, and therefore inadmissible. Scientific evidence about the likelihood of injury at certain measured force levels must be gauged either on laboratory testing on live human subjects, or upon epidemiology studies. Laboratory testing which may result in injury to the subjects is unethical. epidemiology is the only scientific method available. Therefore

Testimony like Dr. Cooperrider's,

unsupported by any epidemiologic study, must be stricken. Norris v. Baxter Healthcare Corp., 397 F.3d 878 (10th Cir. 2005). In the present case, there is a large body of epidemiologic literature indicating that whole body vibration causes injury referenced in appendices to the ANSI and ISO vibration standards. None of the studies provide a scientific basis for any conclusions about injury thresholds or likelihood of injury. The recommendations of industry groups such as ANSI, ISO, OSHA, NIOSH, etc., may be used as evidence of negligence, but not to establish causation, or lack of causation. This is exactly what defendant is attempting to do. Plaintiff requests that Dr. Cooperrider's report concerning the probability of injury be stricken. This includes all of the complicated mathematical calculations that he allegedly performs in his affidavit. CONCLUSION Dr. Cooperrider intentionally omits those portions of the ISO and ANSI standards which state that they cannot be used to establish either probability of injury or threshold limits below which injury will not occur. The ISO standard is the only publication upon which Dr.

Cooperrider bases his testimony. There is no epidemiologic or scientific evidence to support any specific injury thresholds for locomotive whole body vibration. Dr. Cooperrider's opinions are

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junk science, cloaked in a smokescreen of complex mathematical calculations. The Court should not allow such junk science in this courtroom.

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 _____ 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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