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 DOCUMENTARY EVIDENCE ­ THE "STANDISH CORRESPONDENCE"

COMES NOW Defendant Union Pacific Railroad Company, by its attorneys, and moves the 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 data by any witness on behalf of Plaintiff at the trial of this action, pursuant to Rule 702 of the Federal Rules of Evidence on the following grounds: 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.

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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 Complaint. 3. 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. 4. The testing reflected in the Standish Correspondence was not conducted in

accordance with generally accepted standards for the measurement of human exposure to whole body vibration and repeated shock. 5. 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 or to assess human exposure to locomotive vibration. 6. Expert testimony that for any purpose relies upon or refers to the Standish

Correspondence or the data underlying the Standish Correspondence fails to meet the reliability factors required by Rule 702 of the Federal Rules of Evidence and case law construing Rule 702 in the following particulars: a. 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; b. The testing was not conducted in accordance with a methodology generally accepted in the relevant scientific community; and c. The methodology used to conduct the testing is imprecise.

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7.

Defendant incorporates by reference its Brief in Support of Motion in Limine to

Exclude Documentary Evidence ­ the Standish Correspondence, as though set forth verbatim in this motion. 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 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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