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 PLAINTIFF'S EXPERT WITNESS, TYLER KRESS, PH.D.

COMES NOW, Defendant Union Pacific Railroad Company, by and through its attorneys, and moves this Court to grant Defendant's Motion in Limine to Exclude Plaintiff's Expert Witness, Tyler Kress, Ph.D., 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 trier of fact before admitting it 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"]. Dr. Kress' opinions are inadmissible under Rule 702 of the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc. because the

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opinions of Dr. Kress are not scientifically reliable. As such, this Court should exclude his testimony at trial. II. FACTUAL BACKGROUND

Plaintiff, George Bull, worked for Defendant, Union Pacific Railroad Company, as a railroad conductor for thirty (30) years. See Defense Exhibit "A," Deposition of George M. Bull, taken on September 17, 2004, at pages 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 Tyler Kress, Ph.D., December 17, 2004, at page 1 [hereinafter "Kress Report"]. In support of his allegations, Plaintiff is expected to rely on the purported expert testimony of Tyler Kress, Ph.D. Dr. Kress earned his Ph.D. in engineering with a concentration in industrial and biomechanical engineering at the University of Tennessee. See Defense Exhibit "C," Curriculum Vitae of Tyler Kress, Ph.D., at page 1 [hereinafter "Kress C.V."]. Dr. Kress is not a medical doctor. Id. Dr. Kress seeks to proffer the following opinions in this case: (1) Plaintiff's work for Defendant "can be causatively associated" with his alleged low back injuries; (2) Defendant failed to provide Plaintiff a reasonably safe work environment because Defendant failed to adequately train Plaintiff regarding recognition of and exposure to potentially injurious

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conditions of his job and failed to minimize vibration exposure; (3) Defendant failed to provide Plaintiff with proper seating; and (4) Defendant possessed information as early as 1980 regarding whole-body vibration damping, proper seat design, and the standards associated with vibration exposure. See Kress Report at pages 3-4. Dr. Kress bases his opinions on vague references to prior reviews of whole-body vibration data collected by Eckardt Johanning, M.D., M.Sc. See Defense Exhibit "D,"

Deposition of Tyler Kress, taken on August 11, 2005, at page 99 [hereinafter "Kress Depo."]. Dr. Kress admits that the whole-body vibration and repeated shock levels in prior studies fall below the "Health Caution Guidance Zone" established in the International Standards Organization (ISO) 2631-1 (1997) "Evaluation of Human Exposure to Whole-body Vibration" (hereinafter "ISO Standard"), which means that negative health effects at that vibration level have not been clearly documented and objectively observed. Id. at pages 114-115. Additionally, Dr. Kress' opinions are based on prior observations of locomotive seats generally in connection with entirely different litigation. See Kress Depo. at pages 94-97. Dr. Kress never interviewed Plaintiff. See Kress Depo. at page 97. He possesses no data measuring and quantifying Plaintiff's exposure to whole-body vibration on the locomotives and over the routes Plaintiff typically operated. See Kress Depo. at page 83. He never conducted a case-specific site inspection of Plaintiff's work environment. Id. at page 94. Moreover, at his deposition, Dr. Kress could not recall the specific types of seats present in the locomotives that Plaintiff typically operated. Id. at pages 94-97. Dr. Kress never took any case-specific

photographs or even inspected the types of locomotive seats utilized by Plaintiff. Id.

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Dr. Kress has never published any articles or texts in peer reviewed journals or generally accepted textbooks relating to whole-body vibration and repeated shock. See Kress Depo. at page 55. Moreover, Dr. Kress cannot cite to any specific epidemiological literature that

establishes a causal association between whole-body vibration and repeated shock of the magnitude to which locomotive engineers and conductors are exposed and the development of either cervical or lumbar spine disease or disorder. Id. at page 77. ARGUMENT A. Scientifically unreliable expert testimony is inadmissible at trial. According to Rule 702 of the Federal Rules of Evidence, the trial court, as gatekeeper, 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 Moreover, 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 at bar. Daubert, 509 U.S. at 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
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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). 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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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). Dr. Kress' proffered testimony fails the Daubert test because it is not scientifically reliable. As such, this testimony must be excluded. B. Dr. Kress' 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. Moreover, "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

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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"]. 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. Kress' expert testimony fails to meet the relevant reliability factors set out in Rule 702. Thus, it is not scientifically reliable and should be excluded. 2. Dr. Kress' opinions and underlying methodology fail to satisfy the relevant reliability factors set out in Daubert and its progeny.

Expert testimony is not scientifically reliable, and as such, is not admissible at trial, if an expert's opinion is so vague as to be meaningless and/or it 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 relies on several important facts in the Rule
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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.). 5 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.

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702/Daubert assessment, including: (1) the existence of an on site investigation and analysis; (2) the quantitative measurement of the intensity, duration, and frequency of exposure to ergonomic risk factors; and (3) the existence of epidemiological studies. 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 intensity, duration, and frequency of plaintiffs' exposure to ergonomic risk 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

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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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, Dr. Kress' methodology is imprecise and his investigation is inadequate. First, just as in Pretter, Dr. Kress never quantitatively measured the relevant magnitude or frequency of plaintiff's alleged exposure to whole body vibration. See Kress Depo. at 83. He possesses no data measuring and quantifying Plaintiff's exposure to whole-body vibration on the locomotives and over the routes Plaintiff typically operated. See Kress Depo. at 83. Second, unlike in Pretter and Magdeleno, Dr. Kress never even conducted any on-site 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. at 83. In Pretter and Magdeleno, the court excluded the plaintiff's experts even

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though the experts in those cases had at least conducted cursory observations of the plaintiffs' work-sites. Pretter, 206 F.Supp.2d at 604; Magdeleno, 5 F.Supp.2d at 903. In the case at bar, Dr. Kress wholly failed to engage in even a cursory observation of the Plaintiff's work site. See Kress Depo. at 83. Pointedly, Dr. Kress stated at his deposition that he "didn't do a case-specific inspection in this case, so they didn't take me to any sites." Id. at pages 96-97. Moreover, at his deposition, Dr. Kress could not recall the specific types of seats present in the locomotives that Plaintiff typically operated. Id. at page 95. Dr. Kress' opinions are based solely on prior observations of locomotive seats generally in connection with entirely different litigation. See Kress Depo. at pages 94-97. Third, just as in Magdeleno, Dr. Kress never conducted any epidemiological research on the hypothesized causal association between whole-body vibration and repeated shock of the magnitude to which locomotive engineers and conductors are exposed and the development of either cervical or lumbar spine disease or disorder. See Kress Depo. at page 71. In Magdeleno, despite various epidemiological methods available to determine whether a correlation exists between CTS and the risk factors, the proffered expert failed to employ these methods and engaged in merely a brief visit to the plaintiff's worksite. Magdeleno, 5 F.Supp.2d at 905. Similarly, Dr. Kress has never published any articles or texts in peer review journals or generally accepted textbooks relating to whole-body vibration and repeated shock. Id. at page 55. Dr. Kress cannot cite to any specific epidemiological literature that establishes a causal association between whole-body vibration and repeated shock of the magnitude to which locomotive engineers and conductors are exposed and the development of either cervical or lumbar spine

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disease or disorder. Id. at page 77. Moreover, Dr. Kress is not an expert in the field of occupational medicine. See Kress C.V. Dr. Kress bases his opinions on vague references to prior reviews of whole-body vibration data collected by Dr. Johanning. See Kress Depo. at page 99. Dr. Kress admits that the vibration levels documented by that data fall below the "Health Caution Guidance Zone" established in the ISO Standard meaning that negative health effects at that vibration level have not been clearly documented and objectively observed. Id. at page 114-115. Moreover, Dr. Kress admits that he does not know whether Plaintiff was exposed below the lower boundary of the health caution zone, between the upper and lower boundary or above the upper boundary for basic acceleration which measures the vibration levels. Id. at page 107-113. Finally, just as in Magdeleno, although the potential rate for error is completely unknown, this potential is quite significant in this case. In Magdeleno, the proffered expert's methodology was not consistent with the "methodologies described by the authors and experts whom [he] identified as key authorities in his field." Magdeleno, 5 F.Supp.2d at 905.

Additionally, the expert's conclusions had not been tested, nor subjected to peer review and publication. Id. As such, the court held that "the potential rate for error of this opinion, while completely unknown, is obviously quite significant." Id. Just as in Magdeleno, Dr. Kress did not employ any accepted methodology for quantifying and analyzing the magnitude and frequency of exposure to whole-body vibration. Dr. Kress did not even conduct a site visit to observe or measure the degree of Plaintiff's exposure to whole-body vibration or to assess the quality and safety of Plaintiff's seats. See Kress Depo. at page 83. Moreover, Dr. Kress' conclusions were never published or subjected to peer review. See Kress Depo. at page 55.

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Accordingly, although the potential rate for error is completely unknown, this potential must be quite significant in this case. CONCLUSION This Court should exclude Dr. Kress' proffered testimony because it fails the scientific reliability prong of the Daubert test. Dr. Kress' opinions are not scientifically reliable because his opinions rely on imprecise methodology and inadequate investigation. As such, Dr. Kress' 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 Plaintiff's Expert Witness, Tyler Kress, Ph.D. In the alternative, Defendants request that a hearing be held pursuant to Federal Rule of Evidence 104(a) in order to provide full consideration of these issues. 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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