Free Motion in Limine - District Court of Colorado - Colorado

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

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Filed 10/14/2005

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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 MOTION IN LIMINE TO STRIKE TESTIMONY OF NEIL K. COOPERRIDER, LOCOMOTIVE VIBRATION EXPERT COMES NOW plaintiff, through his attorneys, and submits the following motion in limine to exclude defendant's expert, Neil K. Cooperrider, pursuant to Rules 702 and 403 of the Federal Rules of Evidence. 1. Defendant's expert, Neil K. Cooperrider, has performed vibration measurements on Civil Action No.: 04-ES-0560 (BNB)

numerous Union Pacific locomotives. 2. 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 to a lifetime of exposure to the isolated impacts at the levels measured on UP 8500. Exhibit A, p. 5. 3. 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:

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(i) measurements of UP locomotives show that "there is a very low probability of adverse health effects" due to vibration, according to ISO standards; (ii) test data "establishes that the exposure to whole body vibration in defendant's locomotives is benign." (Emphasis in original.) (Exhibit B, pp. 13, 15.) 4. 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. 5. 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. 6. 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.

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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. 7. 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.) 8. 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 seat. (Exhibit F.) Neither the ISO nor ANSI reference any scientific study supporting exposure thresholds and probability of risk. 9. 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. 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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