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 WITNESSES, TYLER KRESS, PH.D.

COMES NOW, Defendant Union Pacific Railroad Company, by and through the undersigned attorneys, and submits the following Motion in Limine to Exclude Plaintiff's Expert Witness, Tyler Kress, Ph.D., 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 Tyler Kress, Ph.D., December 17, 2004, at page 1, attached to Defendant's Brief in Support of Its Motion in Limine to Exclude Tyler Kress, Ph.D. [hereinafter "Kress Report"].

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3.

In support of his allegations, Plaintiff is expected to rely on the purported expert

testimony of Tyler Kress, Ph.D. 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 subjected 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. Dr. Kress' testimony is not admissible at trial because this testimony is not

scientifically reliable. 7. 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 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

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whole-body vibration damping, proper seat design, and the standards associated with vibration exposure. See Kress Report at pages 3-4. 8. Dr. Kress bases his opinions on vague references to prior reviews of whole-body See Defense Exhibit "D,"

vibration data collected by Eckardt Johanning, M.D., M.Sc.

Deposition of Tyler Kress, August 11, 2005, at page 99, attached to Defendant's Brief in Support of Its Motion in Limine to Exclude Tyler Kress, Ph.D. [hereinafter "Kress Depo."]. 9. 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. 10. Additionally, Kress' opinions are based on prior observations of locomotive seats

generally in connection with entirely different litigation. See Kress Depo. at pages 94-97. 11. 12. Dr. Kress never interviewed Plaintiff. Id.. at page 97. Dr. Kress possesses no data measuring and quantifying Plaintiff's exposure to

whole-body vibration on the locomotives and over the routes Plaintiff typically operated. Id. at page 83. 13. Dr. Kress never conducted a case-specific site inspection of Plaintiff's work

environment. Id. at page 94. 14. At his deposition Dr. Kress could not recall the specific types of seats present in

the locomotives that Plaintiff typically operated. Id. at pages 95-97. 15. Dr. Kress never took any case-specific photographs or even inspected the types of

locomotive seats utilized by Plaintiff. Id. at pages 94-97.

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16.

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. Id. at page 55. 17. 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. 18. 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). 19. Dr. Kress' 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, Tyler Kress, Ph.D. 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 7th, 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

CERTIFICATE OF SERVICE I hereby certify that on this 7th 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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