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 DOCUMENTARY EVIDENCE ­ THE "STANDISH CORRESPONDENCE"

COMES NOW, Defendant Union Pacific Railroad Company, by its attorneys, and moves this Court in Limine to exclude from evidence correspondence from Tim Standish, General Motors Electro-Motive Division to John Lockhart, CIT, dated March 9, 2004 [hereafter "Standish Correspondence"]; underlying data summarized in the Standish Correspondence; or any reference to the Standish Correspondence or the data underlying the Standish Correspondence by any witness on behalf of Plaintiff at the trial of this action, pursuant to Rule 702 of the Federal Rules of Evidence. In support thereof, Defendant respectfully submits the following brief. FACTUAL SUMMARY Plaintiff, George Bull, worked for Defendant, Union Pacific Railroad Company, as a railroad conductor for thirty (30) years. See Exhibit "A," Depo. George M. Bull, taken on September 17, 2004 at pages 5-7. On March 12, 2004, Plaintiff filed this lawsuit alleging that

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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 Exhibit "B," Report of Eckhardt Johanning, M.D., M.Sc., November 9, 2004 at page 1, [hereafter "Johanning Report"]. Defendant anticipates that Plaintiff will attempt to admit the Standish Correspondence, which pertains to vibration testing performed on locomotive seats, to prove that Defendant, in the exercise of ordinary care, should have equipped locomotives operated by Plaintiff with active air suspension seats to diminish Plaintiff's exposure to whole body vibration. See Exhibit "C" Johanning Deposition: Exhibit 11 (the Standish Correspondence); see also Johanning Deposition: Exhibit 10, (raw data summarized in the Standish Correspondence). The pertinent portions of the deposition of Dr. Johanning with Exhibit 11 and Exhibit 12 is attached hereto as Exhibit C. As is unequivocally established by the deposition testimony of Eckardt Johanning [hereafter "Johanning"], the vibration testing underlying the Standish Correspondence was not conducted in accordance with the generally accepted standards for the measurement of human exposure to whole body vibration and repeated shock. ISO 2631-1, Mechanical vibration and shock ­ Evaluation of human exposure to whole-body vibration ­ Part 1: General requirements, 2d Ed. (1997) [referred to in Johanning's deposition testimony as the "ISO standard"] Neither the Standish Correspondence, nor the underlying data summarized therein, can be reasonably relied upon to assess the vibration isolating (damping) capabilities of competing seating systems

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or to assess human exposure to locomotive vibration. In his deposition, Dr. Johanning referred to the Standish Correspondence and the data underlying the Standish Correspondence as follows: Page 28 Line 22 23 24 25 Line 2 3 4 5 6 7 8 9 10 11 12 13 23 24 25 Page 30 Line 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18

Q You have not been provided with any whole body vibration or repeated shock data measured by BBN Technologies in the State of Wyoming, correct, sir?

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A Like I said, I have seen something, but I don't know who produced that. Q What is it that you have seen? Can you find that document for me? A Well, Mr. Bremseth has some documentation that he showed me. Q Is this the document? A No. In addition, there is some other documentation that was sent to me by GM Electro Motive Department and something from UP. *** MR. SINCLAIR: Let's mark this please as Exhibit 10. (Whereupon, Exhibit 10 was marked

for Identification.) Q Dr. Johanning, this data that you have been provided this morning, do you understand what this data is and by whom it was generated? A Many questions. Only one question. You want to go one by one? Q Sure. Who generated the data, do you know? A No. Q What does the data relate to, do you know? A My understanding is here's something about acceleration in G's and speed and data file references. Q That data is not reported in a

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format consistent with the reporting requirements of ISO 2631-1 or 2631-5, correct, sir? A That's how I would look at this, yes.

Lines 9 Q Anywhere in that data does it 10 indicate the point at which accelerometers [vibration measurement devices] 11 were attached? 12 A No. 13 Q Anywhere in that data does it 14 indicate the frequency response spectrum of 15 the accelerometers that were used? 16 A I don't see it. 17 Q Anywhere in that data does it 18 reflect the date of calibration of the 19 accelerometer blocks that were used? 20 A I have not even that. Lines 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Lines 2 3 4 5

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Q Data is not reported for each access [sic. "axis"] independently, is it, that is data is not reported in the X, Y and Z axis for each of the two accelerometers that were employed? A I don't see it, that's correct. Q Okay. The data does not report whether filtering was accomplished to weight the data in accordance with human sensitivity to whole body vibration and repeated shock, correct? A Correct. Q The data does not indicate whether the reported results are vector-summated results in accordance with the requirements of ISO 2631-1, correct? A Yes. Q Is it your understanding that this

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data is the data which is the underlying data summarized in correspondence dated March 9th, 2004 from Timothy Standish at GME MD to John Lockhardt at CIT [a company leasing locomotives in CanadianAmerican service to Defendant]?

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A It's my understanding, but I don't know the details, no, the background of it. MR. SINCLAIR: Let's mark the correspondence, which I have described, as Exhibit 11. (Whereupon, Exhibit 11 was marked for Identification.) Q The correspondence states, sir -may I come around? A Yes. Q Exhibit 11, that since there is no baseline information or definitions of acceptable seat performance, it cannot be determined that the current seat configuration is acceptable or unacceptable for continued use, correct? A Yeah, there's a sentence among others in there like that, yes.

Q Okay. In reviewing this data, sir, the underlying data reflected in Exhibit 10 and the data summary in Exhibit 11, is the seat effective amplitude transmissibility [SEAT] factor discussed or reported? A Let me look at this again quickly. I mean if I understand this right, they're talking about something like this, but it says here the sole purpose of this testing was to provide you with information concerning the difference in amplification between the underside of the seat and the seat base for different seats, which an occupant may feel. So it may relate to what you're talking to.

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Q You don't know that to a reasonable degree of scientific certainty, do you? A Know what? Q That SEAT is being discussed because SEAT is not specifically referenced in the document, correct? A Let me just go through the whole

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document. I think they're talking about something like that, but they're talking about the ratio, so it's a ratio, the higher the amplification of the seat, so it relates to that issue of SEAT. I don't see a particular reference to the unit. Q So there's no reference, correct? A No specific reference. Q Now SEAT is the ratio of the basic vibration at the seat pan to the ratio or to the basic vibration at the floor nearest the seat mounting point, correct? [emphasis added] A That's how I would understand it, yes. Q Now looking carefully then at this

correspondence -- let me come around again -it says two three-axis accelerometer blocks were used to measure seat performance, one on the underside of the seat. That's not at the seat pan, is it? A That's correct. Q And the other under the sub floor at the base, and that's not at the floor, is it? A I don't know what it refers to. Q That is certainly not where the ISO standard recommends attaching the accelerometers, is it? A I can't tell. Q Isn't it true that -A I don't know what they mean under sub floor at the base. Q We know what they mean by underside of the seat, don't we? A Yeah, I believe. Q The ISO standard says that vibration is supposed to be measured at the contact point of the ischial tuberosities at the seat pan pad, correct?

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A Q

Yes. Not on the underside?

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A Not to my knowledge. Q And we don't know where the sub floor thing is, do we? A Not exactly. Q Okay. Now let's look at this data -A You don't like that report, counselor, I can tell. Q I think it's scientifically invalid, sir, if I may be completely honest. A Okay, I hear you. [emphasis added] Q Do you agree with me? A Like I said, I don't know what it specifically refers to, so I can't speak for the report. Q It's not evident from the report, is it? A What's not evident? Q It's not evident from the report, for example, that the ISO standard was followed for the selection and attachment of the accelerometers, correct?

A Yes. Q It's not clear from the report what the frequency response of the accelerometers is, correct? A That's right. Q Not clear from the report whether or not the frequency spectrum that was measured was 0 hertz to 80 hertz in accordance with the ISO standard, correct? A That's correct. Q Not correct or isn't it correct that the report -A Let me just look at this again, sorry. There's no reference to ISO standards. Q No reference whatsoever to the ISO standard, correct? A That's right. Q And for the measurement of human exposure to whole body vibration and repeated shock one should follow the ISO standards, that's what you use for your methodology when

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you test, isn't it? A For my purpose of testing, yes,

Lines 2 but I don't think this was the purpose of 3 this testing.

Accordingly, Defendant moves in limine to preclude Plaintiff from referring to the Standish Correspondence or the underlying raw data for any purpose whatsoever at trial, since the information is scientifically unreliable. ARGUMENT 1. The methodology underlying expert witness testimony must be scientifically reliable. 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 589-93. [emphasis provided] 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,
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Under the Federal Rules of Evidence, the trial court shall determine preliminary questions concerning the admissibility of evidence. FED. R. EVID. 104(a).

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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).

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Scientific reliability is determined by analyzing the Daubert factors.

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 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

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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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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 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
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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scientific validity and thus the evidentiary relevance and reliability ­ of the principles that underlie a proposed submission." Daubert, 509 U.S. at 594-95. Expert testimony that relies upon or refers to the Standish Correspondence or underlying data for any purpose fails to meet the reliability factors required by Rule 702 and construing case law in the following particulars: 1. The actual or potential rate of error of the vibration testing summarized in the Standish Correspondence is unknown and likely to be substantial, since the testing was not conducted in accordance with generally accepted scientific methods; 2. The testing was not conducted in accordance with a methodology generally accepted in the relevant scientific community; and 3. The methodology used to conduct the testing is imprecise; it can not be established to a reasonable degree of scientific precision that the testing is valid (measures what it purports to measure) and reliable (reproducible). WHEREFORE Defendant respectfully moves that the Court grant its motion in limine to exclude the Standish Correspondence, the data underlying the correspondence, and any reference to the correspondence or data by any witness on behalf of Plaintiff. DATED: October 10th 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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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.).

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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 10th 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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