Free Motion in Limine - 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

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

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

DEFENDANT'S MOTION IN LIMINE TO EXCLUDE PLAINTIFF'S EXPERT WITNESS, ECKARDT JOHANNING, M.D., M.SC.

COMES NOW Defendant Union Pacific Railroad Company (hereinafter "Union Pacific"), by and through its undersigned attorneys, and submits the following Motion in Limine pursuant to Rule 702 of the Federal Rules of Evidence. 1. On March 12, 2004, Plaintiff filed this lawsuit alleging that he developed chronic

and permanent injuries to his spine during the course of his employment for Defendant, and seeking compensation pursuant to the Federal Employers' Liability Act, 45 U.S.C. §51, et. seq. See Complaint. 2. 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"]. 3. In support of his allegations, Plaintiff is expected to rely on the purported expert

testimony of Eckardt Johanning, M.D., M.Sc.

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4.

To be admissible at trial, an expert's testimony must be scientifically reliable and

the methodology underlying the testimony must be applicable to the facts of the case at bar. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589-93 (1993); FED. R. EVID. 702. 5. 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 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), petition for cert. denied, No. 95-198 (U.S. Oct. 2, 1995) [hereinafter "Daubert II"]. 6. 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). 7. Dr. Johanning's testimony is not admissible at trial because this testimony is not

scientifically reliable. 8. Dr. 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 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. 2

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9.

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 the Deposition of Eckardt Johanning, taken on August 30, 2005, at pages 43-44 [hereinafter "Johanning Depo."]. 10. As such, Johanning never quantitatively measured the relevant magnitude and

frequency of Plaintiff's alleged exposure to whole body vibration. Id. 11. Johanning never reviewed the vibration data collected by Defendant's expert, Neil

Cooperrider, Ph.D., ("Cooperrider"), which is specific to the types of locomotive that Plaintiff worked and collected while traveling the same train routes. See Johanning Depo. at page 28. 12. Accordingly, Dr. Johanning's opinions are based on inadequate investigation and

imprecise methodology. 13. 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 pages 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, 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. 14. 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 2002 article"), See 3

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Defense Exhibit "E"; (2) Fischer, S., Johanning, E., Christ, E., et al., The Role of Shocks in the Whole-Body 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., Fischer, 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". 15. The data and analysis in the above articles and abstracts do not support Dr.

Johanning's conclusions. 16. As such, the analytical gap between Dr. Johanning's opinions and the articles

relied on in support of those opinions is too great. See General Electric v. Joiner, 522 U.S. 136, 144 (1997). 17. Dr. Johanning's opinions are inadmissible at trial, because those opinions are

scientifically unreliable. WHEREFORE, Defendant, Union Pacific Railroad Company, requests that this Court grant Defendant's Motion In Limine To Exclude Plaintiff's Expert Witness, Eckardt Johanning, M.D., M.Sc. In the alternative, Defendant requests 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 Law Department 1331 17th Street, Suite 406 Denver, CO 80202-1566 (303) 964-4575 FAX: (303)964-4585 4

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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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