Free Brief in Support of 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 SUPPORT OF ITS MOTION IN LIMINE TO EXCLUDE TESTIMONY OF PLAINTIFF'S EXPERT WITNESS, ECKARDT JOHANNING, M.D., M.SC.

COMES NOW Defendant Union Pacific Railroad Company, (hereinafter "Union Pacific") by its undersigned attorneys, and moves this Court in Limine to exclude the expert opinion testimony of Eckardt Johanning, M.D., M.Sc., ("Johanning") pursuant to Rule 702 of the Federal Rules of Evidence. In support thereof, Defendant respectfully submits the following brief. 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 II"].

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Johanning's opinions are inadmissible under Rule 702 of the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc. because his opinions are not scientifically reliable. Succinctly, Johanning's opinions are unsupported by objective data. Accordingly, Johanning's testimony should be excluded from evidence. FACTUAL SUMMARY Plaintiff, George Bull, worked for Defendant, Union Pacific, as a railroad conductor for thirty (30) years. See Defense Exhibit "A," Deposition of George M. Bull, September 17, 2004, at 5-7. 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 that he was exposed to vibration while working aboard locomotives which over the course of his employment caused injuries to his spine. See Defense Exhibit "B," Report of Johanning,

November 9, 2004, at page 1, [hereinafter "Johanning Report"]. In support of his allegations, Plaintiff is expected to rely on the testimony of Johanning. Johanning is in private medical practice as the Medical Director of Fungal Research Group, Inc. See Defense Exhibit "C," Curriculum Vitae of Johanning at page 1, [hereinafter "Johanning C.V."]. Johanning's essential opinion is that Plaintiff suffers from severe progressive cervical and lumbar spinal changes consistent with spondylosis and significant chronic back and neck pain problems that are typically found among persons exposed to intense, prolonged, highimpact whole-body vibration and repeated shock. See Johanning Report at page 3. Additionally, Johanning asserts that "findings of excessive wear-and-tear of the spinal column due to repetitive

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injuries and destructive processes in the spine are the known results of chronic whole body vibrations combined with poor seating posture and support." See Johanning Report at page 3. Johanning collected no whole body vibration or repeated shock data specific to the locomotive models operated by Plaintiff throughout his career or the train runs made by Plaintiff throughout his career. See Defense Exhibit "D," Excerpts from Deposition of Eckardt

Johanning, taken on August 30, 2005, at page 43-44, [hereinafter "Johanning Depo."]. As such, Johanning never quantitatively measured the relevant magnitude and frequency of Plaintiff's alleged exposure to whole body vibration. Id. Moreover, Johanning never reviewed the

vibration data collected by Defendant's expert, Neil Cooperrider, Ph.D., ("Cooperrider"), which is specific to the types of locomotives on which Plaintiff worked and collected while traveling the same train routes. See Johanning Depo. at page 28. Although Johanning did not produce the specific data upon which he will rely at his deposition, Defendant anticipates that he will seek to rely on data collected in conjunction with other litigation conducted against Defendant. Id. at page 69-71. Johanning's prior data was not acquired in Wyoming, which is where Plaintiff has almost exclusively operated Defendant's locomotives, but rather, the data was accumulated at other geographic locations on Defendant's system. Johanning's data was not necessarily acquired on locomotives of the same manufacturer and model as those operated by Plaintiff, but rather, was acquired on dissimilar locomotives. Both the terrain over which the previously measured locomotives were operated and the speeds of operation, influential factors affecting the magnitude of vibration emissions, have varied. Defendant anticipates that Johanning will seek to rely on the following articles and abstracts to support his opinions in this case: (1) Whole-body vibration exposure study in U.S.

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railroad locomotives ­ an ergonomic risk assessment, ("Johanning's 2002 article"), See Defense Exhibit "E"; (2) Fischer, S., Johanning, E., Christ, E., et al., The Role of Shocks in the WholeBody Vibration Exposure of US Locomotive Engineers, an abstract presented at the Third International Conference on Whole-Body Vibration Injuries in Nancy, France, June 2005, [hereinafter "Fischer 2005 abstract"], See Defense Exhibit "F"; (3) Johanning, E., Landsbergis, P., Fisher, S. and Luhrman, R, Back Disorder and Ergonomic Survey Among North American Railroad Engineers, Transp. Research Record., 1899:145-155 (2004), [hereinafter "Johanning TRB article"], See Defense Exhibit "G".

ARGUMENT A. Scientifically unreliable expert testimony is inadmissible 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 The burden of establishing admissibility rests with the party proffering the expert's testimony. Dukes v. Illinois Cent. R.R.Co., 934 F.Supp. 946 (N.D. Ill. 1996) (citation omitted). 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
1

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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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). Johanning's proffered testimony fails the Daubert test because it is not scientifically reliable. B. Dr. Johanning's proffered testimony is not 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). 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

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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 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. Finally, Federal courts across the country routinely have applied the tenets of the FELA and Rule 702,3 and have found expert testimony scientifically unreliable and inadmissible, if that

See Goebel v. Denver and Rio Grande Western R.R. Co., 215 F.3d 1083 (10th Cir. 2000); Doty v. Illinois Central Railroad Co., 162 F.3d 460 (7th Cir. 1998); Aparicio v. Norfolk & Western Railway Co., 84 F.3d 803 (6th Cir. 1996); Claar v. Burlington Northern Railroad Co., 29 F.3d 499 (9th Cir. 1994); Lovato v. Burlington Northern and Santa Fe Ry. Co., 2002 WL 1424599 (D. Colo.); Pretter v. Metro North Commuter R.R. Co., 206 F.Supp.2d 601 (S.D.N.Y. 2002; Stasior v. National Railroad Passenger Corp., 19 F.Supp.2d 835 (N.D. Ill. 1998); Williams v. Burlington Northern & Santa Fe Railway Co., 13 F.Supp.2d 1125 (D. Kan. 1998); Magdaleno v. Burlington Northern Railroad & Santa Fe Railway Co., 5 F.Supp.2d 899 (D. Colo. 1998); Dukes v. Illinois Cent. R.R. Co., 934 F.Supp. 946 (N.D. Ill. 1996); Zarecki v. National Railroad Passenger Corp., 914 F.Supp. 1566 (N.D.Ill. 1996), Schmaltz v. Norfolk & Western Railway Co., 878 F.Supp. 1119 (N.D.Ill. 1995); Siler v. National Railroad Passenger Corp., 1996 WL 432395 (N.D.Ill. 1996).

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opinion is so vague as to be meaningless and/or it relies on imprecise methodology and inadequate investigation.4 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. Johanning's expert

testimony fails to meet the relevant reliability factors set out in Rule 702. Thus, Johanning's testimony is not scientifically reliable and should be excluded. 2. Dr. Johanning's opinions and underlying methodology fail to satisfy the relevant reliability factors set out in Daubert and its progeny. a. Dr. Johanning's opinions rely on imprecise methodology and inadequate investigation. Expert testimony is not scientifically reliable, and as such, is not admissible at trial, if an expert's opinion relies on imprecise methodology and inadequate investigation. Pretter v. Metro North Commuter R.R. Co., 206 F.Supp.2d 601 (S.D.N.Y. 2002); Magdaleno v. Burlington Northern Railroad & Santa Fe Railway Co., 5 F.Supp.2d 899 (D. Colo. 1998); Stasior v. National Railroad Passenger Corp., 19 F.Supp.2d 835 (N.D. Ill. 1998). Federal courts across the country are routinely and appropriately applying the tenets of the FELA, Daubert, and its progeny, in analyzing the admissibility of expert testimony in FELA actions.5 This line of cases consistently

4

Pretter, 206 F.Supp.2d at 601; Magdaleno, 5 F.Supp.2d at 899; Stasior, 19 F.Supp.2d at 835. See also Baker v. Metro-North Railroad Company, 2003 WL 22439730 (D.Conn.); Lovato, 2002 WL 1424599; Hasset v. Long Island R.R. Co., 2004 WL 2563586 (N.Y. Sup.).

See Goebel v. Denver and Rio Grande Western R.R. Co., 215 F.3d 1083 (10th Cir. 2000); Doty v. Illinois Central Railroad Co., 162 F.3d 460 (7th Cir. 1998); Aparicio v. Norfolk & Western Railway Co., 84 F.3d 803 (6th Cir. 1996); Claar v. Burlington Northern Railroad Co., 29 F.3d 499 (9th Cir. 1994); Lovato v. Burlington Northern and Santa Fe Ry. Co., 2002 WL 1424599 (D. Colo.); Pretter v. Metro North Commuter R.R. Co., 206 F.Supp.2d 601 (S.D.N.Y. 2002); Stasior v. National Railroad Passenger
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relies on several important facts in the Rule 702/Daubert assessment, including: (1) the existence of an on site investigation and analysis; (2) the quantitative measurement of the frequency, intensity, duration, and temporal pattern of exposure to ergonomic risk factors; and (3) the existence of epidemiological studies associating Plaintiff's work environment to the development of Plaintiff's injuries. Lovato v. Burlington Northern and Santa Fe Ry. Co., 2002 WL 1424599 (D. Colo.); Pretter v. Metro North Commuter R.R. Co., 206 F.Supp.2d 601 (S.D.N.Y. 2002); Stasior v. National Railroad Passenger Corp., 19 F.Supp.2d 835 (N.D. Ill. 1998); Magdaleno v. Burlington Northern Railroad & Santa Fe Railway Co., 5 F.Supp.2d 899 (D. Colo. 1998). In Pretter v. Metro North Commuter R.R. Co., plaintiff sought to proffer the expert testimony of a purported expert in ergonomics. 206 F.Supp.2d 601 (S.D.N.Y.2002). The bases for the expert's opinions constituted the following: a brief and casual visual inspection of plaintiff's work sites, a videotaping of the work functions at issue which did not follow accepted authoritative methodological procedures; and the plaintiffs' own statements. Id. at 604. The expert failed to engage in any quantitative or objective measurement or observations of the plaintiffs' exposure to ergonomic risk factors. The Pretter Court excluded this opinion, because it was "so vague as to be meaningless." Id. In light of the expert's failure to define the ergonomic risk factors with specificity, his reliance solely on plaintiffs' deposition testimony and his failure to quantitatively measure the frequency, intensity, duration, and temporal pattern of plaintiffs' exposure to ergonomic risk

Corp., 19 F.Supp.2d 835 (N.D. Ill. 1998); Williams v. Burlington Northern & Santa Fe Railway Co., 13 F.Supp.2d 1125 (D. Kan. 1998); Magdaleno v. Burlington Northern Railroad & Santa Fe Railway Co., 5 F.Supp.2d 899 (D. Colo. 1998); Dukes v. Illinois Cent. R.R. Co., 934 F.Supp. 946 (N.D. Ill. 1996); Zarecki v. National Railroad Passenger Corp., 914 F.Supp. 1566 (N.D.Ill. 1996), Schmaltz v. Norfolk &

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factors coupled with his failure to engage in any meaningful on-site investigation, the court reasoned that this vagueness "was not the result of imprecise wording, but of imprecise methodology and inadequate investigation." Pretter, 206 F.Supp.2d at 604. Moreover, the court stated that "[o]ne who seeks to clothe his opinions in the garb of `scientific certainty' must adhere to the strict standards of objectivity that that formal wear entails," and the court found that purported expert's reliance only on impressions and extrapolations from his brief and casual visual inspection and videotaping of the work functions at issue, as well as on plaintiff's "own vague, conclusory, and self-serving statements" did not satisfy those strict standards of objectivity. Id. See also Magdeleno v. Burlington Northern R.R. Co., 5 F.Supp.2d 899

(D.Colo.1998) (excluding plaintiffs' ergonomics expert's opinions because of imprecise methodology and inadequate investigation where the expert relied only on a report which lacked any empirical investigation, the expert engaged in only a brief visit to the plaintiffs' work site, and the expert failed to conduct any quantitative analysis of the intensity, duration or frequency of the alleged exposure to ergonomic risk factors for CTS). Just as in Pretter and Magdeleno, Johanning's methodology is imprecise and his investigation is inadequate. Johanning never quantitatively measured the relevant magnitude and frequency of Plaintiff's alleged exposure to whole body vibration. See Johanning Depo. at pages 43-44. Moreover, he never reviewed the vibration data, collected by Defendant's expert, Dr. Neil Cooperrider, on the type of locomotive that Plaintiff worked while traveling the same train routes. Id. at 28.

Western Railway Co., 878 F.Supp. 1119 (N.D.Ill. 1995); Siler v. National Railroad Passenger Corp., 1996 WL 432395 (N.D.Ill. 1996).

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Second, unlike in Pretter and Magdeleno, Dr. Johanning never even conducted any onsite investigations for the purpose of determining, observing and analyzing Plaintiff's alleged exposure to whole body vibration in this case or assessing the safety of the seats provided to Plaintiff. Id. In Pretter and Magdeleno, the court excluded the plaintiff's experts even though the experts in those cases had at least conducted cursory observations of the plaintiffs' worksites. Pretter, 206 F.Supp.2d at 604; Magdeleno, 5 F.Supp.2d at 903. In the case at bar, Johanning wholly failed to engage in even a cursory observation of the Plaintiff's work site. This is evidenced by the following exchange between Johanning and defense counsel: Q. [T]hus far, you have conducted no whole body vibration and repeated shock exposure testing relevant specifically to the case of George Bull, correct? Correct. And you don't have any previous data which you have collected in Wyoming correct? That's correct. *** Q. Have you been provided with the typewritten report of Neil Cooperrider measuring vibration in the Bull invoked [sic "and Vogt"] cases in Wyoming? No.

A. Q.

A.

A.

Johanning Depo. at pages 27-28. As the expert testimony excluded in Pretter and Magdeleno, Johanning's proffered expert testimony is based on inadequate investigation and imprecise methodology. opinion and methodology are not scientifically reliable and are not admissible. b. The analytical gap between the data Johanning relies on and the opinions and conclusions he proffers is too great. As such, this

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When the basis for the expert's proffered opinion is insufficient, the analytical gap between the data relied on and the conclusions or opinions proffered is too great, and the testimony is unreliable and excludable. Joiner, 522 U.S. at 144-46. In Joiner, the plaintiff's expert sought to testify that the plaintiff's cancer resulted from exposure to polychlorinated biphenyls ("PCBs"). Id. The basis for the expert's conclusion consisted of a study indicating that infant mice developed cancer after receiving massive doses of PCBs injected directly into their peritoneum or stomachs. Id. Additionally, the expert relied on four epidemiological studies. Two studies examined the link between workers exposed to PCBs and increases in lung cancer. Id. One study examined a type of mineral oil and its relation to the development of cancer. Id. The final study examined exposures to numerous potential carcinogens including PCBs. Id. The Supreme Court affirmed the district court's exclusion of this expert testimony because the studies relied on to formulate the experts' opinions did not provide sufficient basis for those opinions, and as such, the analytical gap between the data relied on and the opinions proffered was too great. Id. The Court reasoned that the animal studies cited were too dissimilar to the facts presented. Id. at 144. Additionally, the four epidemiological studies were not a sufficient basis for the expert's opinions. Id. at 145-146. The authors of the first two studies were unwilling to assert that the PCB exposure caused the workers' cancer. Joiner, 522 U.S. at 145. The third study on mineral oil was irrelevant, and the fourth study had too many other potential causes (i.e. "confounding factors"). Id. at 145-146. Thus, the Supreme Court held that the lower court did not abuse its discretion in excluding the expert's testimony. Id.

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Just as in Joiner, the bases for Johanning's opinions in this case are insufficient. Defendant anticipates that Johanning will seek to rely on the following articles and abstracts to support his opinions in this case: (1) Whole-body vibration exposure study in U.S. railroad locomotives ­ an ergonomic risk assessment, ("Johanning's 2005 article"); (2) The Role of Shocks in the Whole-Body Vibration Exposure of US Locomotive Engineers ("Fischer's 2005 abstract"); and (3) Back Disorder and Ergonomic Survey Among North American Railroad Engineers, Transp. Research Record ("Johanning's TRB article"). See supra, Statement of Facts. The first two documents, Johanning's 2002 article and Fischer's 2005 abstract, analyze and assess whole-body vibration and repeated shock data collected on twenty-two U.S. locomotives and purport to employ the consensus method6 prescribed by the International Organization for Standardization. See Defense Exhibit "H," the International Organization for Standardization (ISO) 2631-1 (1997) "Evaluation of Human Exposure to Whole-body Vibration" [hereinafter "ISO Standard"]. However, the whole body vibration on the locomotives tested is not deleterious, according to Johanning's own data. See Johanning 2002 article; Fischer 2005 abstract; See also Defense Exhibit "I," Affidavit of Neil Cooperrider, Ph.D., at para. 29-36, attached hereto [hereinafter "Cooperrider Affidavit]. Moreover, Johanning fails to properly employ the ISO Standard's methodology. Id. The ISO Standard requires a three step analysis. First, basic whole body vibration ("basic vibration") must be assessed and compared to stated guidelines for human exposure. See ISO
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Unlike many occupational and/or environmental exposures, there is international consensus regarding the generally accepted method for acquiring and analyzing whole body vibration exposure. See Cooperrider Affidavit at paras. 715. The ISO Standard is the only standard that provides a comprehensive process for instrumentation, data

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Standard at Section 6.1; See also Cooperrider Affidavit at paras. 16-25. Second, the "crest factor" must be calculated to determine whether significant impacts are present. See ISO

Standard at Sections 6.2; See also Cooperrider Affidavit at paras. 16-25. 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 Sections 6.2-6.3; See also Cooperrider Affidavit at 21-22. There are two alternative types of additional analysis: the maximum transient vibration value ("MTVV"), See Cooperrider Affidavit at para. 23; and the fourth power vibration dose value ("VDV").7 See ISO Standard at Sections 6.2-6.3. According to the ISO Standard, the recommended guidelines for human exposure to whole body vibration, referred to as the "Health Guidance Caution Zone8" (hereinafter "HGCZ"), is between .43 meters per second squared9 and .87 meters per second squared in the most severe direction of the vibration10 for an 8 hour time period. See ISO Standard, Annex B; see also Cooperrider Affidavit at paras. 19-20. According to the Standard, the health effects have not been clearly documented and/or objectively observed for exposures that fall below the

acquisition, processing, analysis, and reporting for human exposure to whole body vibration. Id. No other standard existing to date is inconsistent with the ISO Standard or more stringent than the ISO standard. Id. at para. 13. 7 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. 8 Equations for calculation of the reported values are included in the Standard. See ISO Standard. The Annexes to the ISO Standard provide greater technical detail concerning the conditioning and analysis of the data. Id. 9 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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lower boundary of the HGCZ. See ISO Standard at Annex B, section B.3.1, fig. B.1; See also Cooperrider Affidavit at para. 19. Additionally, for exposures which exceed the upper boundary of the HGCZ, health risks are likely. See ISO Standard at Annex B, section B.3.1, fig. B.1; See also Cooperrider Affidavit at para. 20. Thus, the lower limit is approximately .5 and the upper limit is approximately 1 in the most severe direction of vibration. Id. First, Johanning's 2002 article does not support his opinion that railroad engineers are exposed to relatively high levels of repeated shock. Johanning measured and analyzed whole body vibration on twenty-two U.S. locomotives. See Johanning 2002 article at 439-46. None of the basic vibration results for the Defendant's locomotives measured for the 2002 article exceed the lower boundary, let alone the upper boundary, of the HGCZ in any direction. See Johanning 2002 article at 445, Table II. The average (or mean value) for the basic vibration calculation for the twenty-two locomotives Johanning tested fell well below the lower boundary of the HGCZ (values are 0.18 (X axis), 0.28 (Y axis) and 0.32 (Z axis), respectively). Id. Moreover, Johanning fails to properly employ steps two and three of the ISO Standard analysis. According to the ISO Standard, if the crest factor falls below or equal to 9, it is only necessary to conduct the basic vibration analysis. See ISO Standard at Section 6.2.2. If the crest factors exceed 9, the ISO Standard recommends the additional MTVV or VDV analysis. Id. Crest factors alone "[do] not necessarily indicate the severity of vibration," because the crest factor represents a dimensionless ratio, meaning if the vibration is very low at the seat (the denominator of the ratio), even nominal peaks may result in an unrepresentatively high value. See ISO Standard at Section 6.2.1 (emphasis added); Cooperrider Affidavit at para. 21-22.
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Vibration is measured and analyzed in three directions, front to back ("X axis"), side to side ("Y axis"), and head

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Thus, where the crest factor is 9 or higher, it is necessary to engage in step three (calculating the MTVV or the VDV) of the ISO Standard's methodology. Id. Moreover, the ISO Standard requires that "both the basic evaluation value, calculated in step one, and the additional evaluation value, calculated in step three, shall be reported" in cases where one of the additional methods are utilized. See ISO Standard at Section 6.3.3. Johanning's 2002 article fails to report the MTVV or VDV values as required by the ISO Standard. See Johanning 2002 article at 445, Table II. Table II reports the "critical ratios," which may trigger the need for additional analysis and are not calculations required by the ISO Standard. See Cooperrider's

Affidavit at para. 32. Moreover, in direct contravention of the ISO Standard, Johanning merely relies on the so-called "critical ratios" as evidence of an "unsafe" shock and impact environment. Id. Just as in Joiner, Johanning's conclusions are not supported by his data. Thus, the analytical gap, between the data relied on and the opinions proffered, is too great. Second, the Fischer 2005 abstract does not support Johanning's opinion that railroad engineers are exposed to relatively high levels of repeated shock. The Fischer 2005 abstract employs the third step in the ISO Standard's methodology. It calculates and reports the VDV, for the locomotives originally measured (except switching locomotives) for Johanning's 2002 article. See Johanning Depo. at pages 20-21. However, according to Johanning's own data and calculations, the reported VDVs for the majority of locomotives, fell well below the estimated VDV equivalents corresponding to the lower boundary of the HGCZ. Hence, the measured exposures do not present an increased relative risk for spinal disorders, according to the human exposure guidelines contained in the Standard.

to toe ("Z axis").

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The Fischer 2005 abstract also reported the results of an additional analysis, known as the "Part 5 analysis," established in the ISO Standard. See Defense Exhibit "J," ISO 2631-5 (2004). This method 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 Johanning Depo. at 2021. This analysis measures "spinal pressure" as the result of whole body vibration and repeated shock exposure in engineering units call mega Pascals. Id. Part 5 of the Standard provides guidelines for career exposure to whole body vibration and repeated shock. Just as with the Health Guidance Caution Zone in Part 1 of the Standard, an upper and lower boundary are provided. According to the Part 5 analysis reported in the 2005 abstract, the predicted spinal pressure for 240 days per year in a railroad career of 45 years for an individual between 20 and 65 years of age would be below 0.5 mega Pascals. See Fischer 2005 abstract. According to Part 5 of the Standard, measurements below 0.5 mega Pascals indicate that there is a "low probability of adverse health effects." See Defense Exhibit "J," Mechanical vibration and shock--Evaluation of human exposure to whole-body vibration, Part 5: Method for evaluation of vibration containing multiple shocks [hereinafter "ISO Standard Part 5"]. Again just as in Joiner, the Fischer 2005 abstract fails to support Johanning's opinions. See Cooperrider Affidavit, at paras. 34-37. Third, Johanning's TRB article is scientifically unreliable and fails to support Johanning's conclusions. There are numerous and significant limitations in study design,

methodology, and execution that render the TRB article's conclusions scientifically unreliable. These limitations include, but are not limited to the following: non-matched subject and control populations; inadequate description of study methods and results; inadequate classification of

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"adverse health outcomes;" failure to directly measure exposure of either subjects or controls to whole body vibration and repeated shock; failure to recognize and account for potential confounders; failure to adequately describe statistical analysis; significant sources of response and information bias; a limited cross-sectional study design; failure to validate the questionnaire used to acquire data on subjects and controls; inadequate consideration of psychosocial and socioeconomic factors; and internal inconsistencies between the study and supporting references it cites. These flaws raise serious concerns about the validity of the reported study results and the validity of the authors' conclusions that the study provides evidence of an association between work related whole-body vibration exposures and musculoskeletal problems in railroad engineers. See Defense Exhibit "K," Holland Affidavit at para. 9. Cumulatively, the

methodological deficiencies render Johanning's TRB article scientifically unreliable. Even if it were assumed that the study's findings are valid, the reported findings do not provide sufficient evidence to support the authors' conclusions that railroad engineers as a group either: (1) have high occupational exposures to whole body vibration and repeated shock; or (2) are at an increased relative risk for functionally significant low back, neck or shoulder musculoskeletal disorders. Id. at para. 27-42. Dr. Johanning's own research, data and analysis do not support his assertion that "findings of excessive wear-and-tear of the spinal column due to repetitive injuries and destructive processes on the spine are the known results of chronic whole body vibrations combined with poor seating posture and support." See Johanning Report at page 3. Thus, just as the expert opinions in Joiner, the analytical gap between the data relied on and the opinions

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proffered are too great because the studies relied on to formulate his opinions do not provide sufficient basis for those opinions.

CONCLUSION In conclusion, this Court should exclude Johanning's proffered testimony because it fails the scientific reliability prong of the Daubert test. Dr. Johanning's opinions are not scientifically reliable because Johanning's opinions rely on imprecise methodology and inadequate investigation, and the analytical gap between the data he relies on and the opinions and conclusions he proffers is too great. Since Johanning's opinions will be of no assistance to the jury in resolving facts in issue, and in fact, might be misleading and confusing, his testimony fails the relevance prong of the Daubert standard as well. Accordingly, Johanning's proffered testimony should be excluded in total. WHEREFORE, Defendant, Union Pacific Railroad Company, requests that this Court grant Defendant's Motion In Limine To Exclude the Testimony of Plaintiff's Expert Witness, Eckardt Johanning, M.D., M.Sc. In the alternative, Defendants request that a hearing be held pursuant to Rule 104(a) of the Federal Rules of Evidence in order to provide full consideration of these issues. DATED: October 11th, 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

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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 11th 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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