Free Response to Motion - District Court of Colorado - Colorado

Case 1:03-cv-02451-PSF-CBS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-F-2451 (CBS)

BRYCE E. CARLEY, Plaintiff, v. UNION PACIFIC RAILROAD COMPANY, A Delaware corporation, Defendant,

PLAINTIFF'S BRIEF OPPOSING DEFENDANT'S MOTION TO STRIKE DR. HAWKINS' OPINION ON WORKLIFE EXPECTANCY

Plaintiff Bryce E. Carley respectfully submits this Brief opposing Defendant's Motion in limine to strike Dr. Hawkins' expert medical opinion on the issue of whether Mr. Carley will have a normal worklife expectancy as a Locomotive Engineer. Defendant's Motion is ironic given the fact that Defendant opened the door by eliciting this opinion during cross-examination. Defendant's argument, at most, goes to the weight of Dr. Hawkins' opinion rather than its admissibility. Defendant's Motion should therefore be denied. 1. The Court has Broad Discretion to Admit Expert Opinion Testimony. District courts have "broad discretion in admitting and excluding expert testimony." Smith v. Colorado Interstate Gas Co. 794 F.Supp. 1035, 1044 (D.Colo.1992). The Tenth Circuit will affirm a district court's evidentiary ruling on the admission of expert testimony unless convinced that a ruling is "arbitrary, capricious, whimsical, manifestly unreasonable, or clearly erroneous." Goebel v. Denver and Rio Grande W. R. Co., 346 F.3d 987, 990 (10th Cir.2003).

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2.

Federal Evidentiary Rules and Standards Govern the Admissibility of Evidence in FELA Cases. Defendant's reliance on Jacobs v. Commonwealth Highlands Theatres, Inc., 738 P.2d 6,

11 (Colo. App. 1987) is misplaced because the rights and obligations of parties to an FELA action are governed by the terms of the statute "and applicable principles of common law as interpreted by the federal courts." Chicago, Minneapolis & St. Paul Railway Co. v. Coogan, 271 U.S. 472, 474, 46 S.Ct. 564, 70 L.Ed. 1041 (1926). The U.S. Supreme Court has consistently adhered to this principle since deciding Coogan in 1926. Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 544, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994); Norfolk & Western Railway v. Liepelt, 444 U.S. 490, 493, 100 S.Ct. 755, 62 L.Ed.2d 689 (1980); Dice v. Akron, Canton & Youngstown Railroad Co., 342 U.S. 359, 361-62, 72 S.Ct. 312, 314 96 L.Ed. 398 (1952). State courts trying FELA claims must apply Federal law about burdens of proof. New Orleans & North Eastern Railroad Co. v. Harris, 247 U.S. 367, 371-72, 38 S.Ct. 535, 536, 62 L.Ed. 1167 (1918); Dice, 342 U.S. at 361, 72 S.Ct. at 314. Evidentiary decisions in FELA cases are a matter of federal law. Liepelt, 444 U.S. at 493 ("It has long been settled that questions concerning the measure of damages in an FELA action are federal in character. . . even when the action is brought in state court."); Cardwell v. Chesapeake & Ohio Railway Co., 504 F.2d 444, 448 (6th Cir. 1974) (law of the state in which a U.S. district court sits does not govern the question of admissibility of medical opinion evidence in an action filed under the FELA). Federal courts rely on the Federal Rules of Evidence when determining the admissibility of expert opinion evidence in FELA cases. See e.g., Goebel v. Denver & Rio Grande Western Railroad Co., 346 F.3d 987, 990-991 (10th Cir. 2003) (determining admissibility of expert medical opinion under the Federal evidentiary rules and standards); Hardyman v. Norfolk & Western Railway Co., 243 F.3d 255, 260 (6th Cir. 2001) (utilizing FRE 702 to determine

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admissibility of expert opinions from a medical physician and an erognomist); Hose v. Chicago Northwestern Transportation Co., 70 F.3d 968, 972, 973-76 (8th Cir. 1995) (determining admissibility of several expert physicians according to Federal evidentiary rules and standards); Taylor v. Illinois Central Railroad Co., 8 F.3d 584, 586 (7th Cir. 1993) (determining admissibility of expert opinion testimony from railroader under FRE 702). These authorities make clear that Federal rather than Colorado evidentiary rules and standards govern the admissibility of evidence in this case. To the extent that Defendant cites Jacobs as mere persuasive authority, Defendant's reliance is again misplaced. In LeMaire By and Through LeMaire v. U.S. 826 F.2d 949 (10th Cir. 1987), defendant contended on appeal that the district court erred in admitting opinion testimony on medical causation because the physician did not state his opinion to a reasonable degree of medical probability. The Tenth Circuit held that under both Federal and Colorado law, the physician's lack of certainty goes to the weight rather than the admissibility of the opinion: Under Colorado law, a medical opinion is admissible if founded on reasonable medical probability. Thirsk v. Ethicon, Inc., 687 P.2d 1315, 1318 (Colo.Ct.App.1983); see also Daugaard v. People, 176 Colo. 38, 488 P.2d 1101, 1103-04 (1971) (proceeding involving termination of parental rights). However, the fact that the expert cannot support his opinion with certainty goes only to its weight not to its admissibility. See Marlow v. Atchison, Topeka & Santa Fe Ry. Co., 671 P.2d 438, 443 (Colo.Ct.App.1983); see also Bean v. United States, 533 F.Supp. 567, 578-79 (D.Colo.1980) (applying Fed.R.Evid. 702 in holding that physician's inability to support causation testimony with a reasonable degree of medical certainty "goes to the weight we give his testimony, not to its admissibility"). Id. at 954. The Tenth Circuit in LeMaire concluded that the Colorado Supreme Court would consider the entire substance of the physician's testimony to determine the admissibility of the challenged opinion, and that the District Court properly admitted the physician's opinion: Although the Colorado courts have not specifically addressed the issue, we think they would examine the entire substance of Dr. Reiter's testimony to determine whether he intended to express an opinion based on a reasonable degree of medical probability.

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See Norland v. Washington Gen. Hosp., 461 F.2d 694, 697-98 (8th Cir.1972); Schiles v. Schaefer, 710 S.W.2d 254, 262 (Mo.Ct.App.1986); Azure v. City of Billings, 182 Mont. 234, 596 P.2d 460, 472 (1979); Williams v. Dulaney, 331 Pa.Super. 373, 480 A.2d 1080, 1086 (1984); Gamble v. Price, 289 S.C. 538, 347 S.E.2d 131, 132-33 (App.1986); Bufkin v. Texas Farm Bureau Mut. Ins. Co., 658 S.W.2d 317, 321 (Tex.Ct.App.1983). After a careful review of the record, we are convinced that Dr. Reiter's opinion testimony was properly admitted under this standard. Ibid. (capitalization in original). In Bean v. U.S., 533 F.Supp. 567, 578 (D. Colo. 1980), cited in LeMaire, the district court held that "[t]he fact that Dr. Lewis could not state to a reasonable degree of medical certainty that the swine flue vaccine caused Mrs. Bean's illness goes to the weight we give his testimony, not to its admissibility." Id. at 578. Thus, even if the Court considers Colorado law persuasive, review of the entire substance of Dr. Hawkins' testimony demonstrates that his opinion regarding Mr. Carley's worklife expectancy goes to the weight rather than the admissibility of his opinion. More importantly, however, is the fact that Dr. Hawkins' challenged opinion is admissible under Federal law. 3. Defendant's Challenges to Dr. Hawkins' Opinions to the Weight of His Opinions Rather than the Admissibility of His Opinions Under Federal Law. The Tenth Circuit Court of Appeals and the U.S. District Court for the Court of Colorado are by no means the only Federal courts that have held that a physician's inability to state an opinion to a reasonable degree of probability goes to the weight rather than the admissibility of the opinion. The Eighth Circuit Courts of Appeals reached a similar conclusion in Norland v. Washington General Hospital, 461 F.2d 694 (8th Cir. 1972). In Norland, the Eighth Circuit observed that courts have recognized that the admissibility of a physician's opinion should not be decided upon "a mechanical rule of law" as to whether the physician used the words "probable" or "possible," but should instead turn instead on whether "the nature and basis of" the opinion represents the physician's "professional judgment:"

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The use of the terms "probable" and "possible" as a basis for test of qualification or lack of qualification in respect to a medical opinion has frequently converted this aspect of a trial into a mere semantic ritual or hassle. The courts have come to recognize that the competency of a doctor's testimony cannot soundly be permitted to turn on a mechanical rule of law as to which of the two terms he has employed. Regardless of which term he may have used, if his testimony is such in nature and basis of hypothesis as to judicially impress that the opinion expressed represents his professional judgment as to the most likely one among the possible causes of the physical condition involved, the court is entitled to admit the opinion and leave its weight to the jury. In fact, it appears from some of the testimony in the present record that the usual process for arriving at medical opinion is to engage in "diagnostic impressions" as to the possible causes and then to sift these down to the one that impresses as being the most likely possible one in the situation. 461 and 697-98. Just as the Tenth Circuit in LeMaire and the Eighth Circuit in Norland determined that the medical opinions in those cases were admissible based on the entire substance of the physicians' testimony, the Court in this case should similarly conclude that Dr. Hawkins' challenged opinion is admissible based on the entire substance of his testimony. Defendant's Brief, however, omits all of Dr. Hawkins' testimony except that which it seeks to exclude. Defendant does not question Dr. Hawkins' qualifications as an expert orthopedic surgeon, nor could it. After graduating from medical school and completing his residency, Dr. Hawkins completed graduate fellowships in knee surgery, shoulder surgery and cervical spine surgery. Hawkins Video Dep. 5:22 to 6:7. In addition to being engaged in clinical orthopedic surgery since 1976, Dr. Hawkins has also been a professor of orthopedic surgery and head of the residency training program at the University of Western Ontario in London, Canada. Id. at 6:24 to 7:2. Since that time, Dr. Hawkins has continued to teach orthopedic surgery, having trained 120 graduate orthopedic surgeons in a fellowship program. Id. at 7:2-7. Dr. Hawkins' orthopedic specialty is shoulder surgery. Id. at 8:6-10. Dr. Hawkins, who performs ten shoulder surgeries per week, has performed thousands of shoulder surgeries over

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the course of his career. Id. at 8:11-15. Dr. Hawkins has published hundreds of articles and six textbooks in the field of orthopedic surgery, "mostly on the shoulder," and predominantly for orthopedic surgeons. Id. at 7:11-23. In addition to belonging to numerous orthopedic surgery and sports medicine professional organizations (id. 9:10 to 11:8), Dr. Hawkins is the current head team physician for the Denver Broncos. Id. at 10:12. Dr. Hawkins has also served as the Medical Director for the Colorado Rockies, the U.S. Ski Team, and has been a consultant to a number of other sporting organizations. Id. at 10:13-17. Along with his exceptional orthopedic surgery credentials, Dr. Hawkins also has a solid foundation for his medical opinion regarding Mr. Carley's worklife expectancy based upon his clinical care and treatment of Mr. Carley between February 5 and December 15, 2003. Id. at 12: 3-4; 46:15 to 47:13. Dr. Hawkins initially examined Mr. Carley's shoulder on shoulder on February 5, 2003 (id. at 14:6-7) and performed the second surgery on Mr. Carley's shoulder on February 18, 2003. Id. at 19:1-15. Dr. Hawkins examined Mr. Carley's shoulder again postoperatively on March 24 and May 5, 2003. Id. at 23:14-19; 24:14-15). After examining Mr. Carley's shoulder on May 5, Dr. Hawkins injected Mr. Carley's shoulder with cortisone due to ongoing limited range of motion, stiffness, pain and grinding. Id. at 25:23 to 26:19. When he next examined Mr. Carley on June 9, 2003 (id. at 28:14-17), Dr. Hawkins found that Mr. Carley's shoulder was "plagued post-operatively by we say sub-acromonial scarring with impingement," pain, and grinding. Id. at 28:19-23; 30;11-16. Dr. Hawkins therefore recommended that Mr. Carley undergo yet another surgery, a subacromonial decompression. Id. at 29:24-25. Dr. Hawkins examined Mr. Carley's shoulder again on June 25, 2003, before performing the third surgery on Mr. Carley's shoulder the following day. Id. at 31:9 to 32:2.

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Dr. Hawkins next examined Mr. Carley on July 21, 2003, and again on September 5, 2003. Id. at 33:7-21. On September 5, Dr. Hawkins noted that Mr. Carley wasn't improving, that he continued to have pain which awakened him at night, and that he was having problems lifting his arm forward despite diligent attendance at physical therapy. Id. at 34:2-7. After finding tenderness over the front of the shoulder, a mildly positive impingement sign, limited range of motion on examination, and positive speeds test on that date (id. at 34:18 to 35:10), Dr. Hawkins injected Mr. Carley's shoulder a second time on September 5, 2003. Id. at 38:19-21. Dr. Hawkins, who has treated "quite a few" Locomotive Engineers and Conductors (id. at 40:12-18), testified that he told Mr. Carley that he should not return to work as a Conductor because the job "was fairly heavy" and because "his shoulder was not suited for that." Id. at 39:23 to 40:2. Dr. Hawkins restricted Mr. Carley from engaging in any heavy lifting or pulling, and no repetitive overhead motion or pushing and pulling with his left shoulder. Id. at 40:3-6. When Dr. Hawkins next saw Mr. Carley on October 17, 2003, he learned that Mr. Carley continued to have pain, both with overhead activities and while at rest. Id. at 40:23 to 41:3. On examination, Dr. Hawkins again found evidence of shoulder impingement and restricted range of motion. Id. at 41:7 to 42:6. On this occasion, Dr. Hawkins administered yet a third injection, this time into the biceps tendon as a diagnostic tool. Id. at 42:7-18. When Dr. Hawkins last examined Mr. Carley's shoulder on December 15, 2003, Mr. Carley was continuing to experience pain at night and pain with overhead activities, with a dull ache at rest. Id. at 43:18-21. Mr. Carley rated his pain at rest "as two out of ten on a visual analog scale" and "a six with overhead activity." Id. at 43:22 to 44:3. On examination, Dr. Hawkins again found positive impingement signs. Id. at 44:16-24. Dr. Hawkins again

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recommended against Mr. Carley returning to work as a Conductor because "it would probably be too much for his shoulder." Id. at 46:4-8. Dr. Hawkins testified that Mr. Carley's shoulder and biceps tendon will require future medical care including physical therapy as well as medications for pain, inflammation and sleeping. Id. at 48:8-20. Dr. Hawkins also discussed with Mr. Carley the possibility of a fourth surgery but did not recommend it because Mr. Carley had already undergone three surgeries. Id. at 49:2-1; 69:2-22. Dr. Hawkins definitively ruled out a return to as a conductor. Id. at 50:2. During cross-examination, Dr. Hawkins testified that the first surgery he performed was not a success because Mr. Carley continued to have pain. Id. at 61:22-24. Dr. Hawkins similarly testified that he did not consider the second surgery he performed to have been successful because Mr. Carley continued to have pain and impingement signs. Id. at 67:8-25. While testifying on cross-examination that he thought Mr. Carley could be released to train as a Locomotive Engineer, Dr. Hawkins cautioned that training to be a Locomotive Engineer is different from working as a Locomotive Engineer. Id. at 70:9 to 71:1. Even after reviewing Defendant's job site analysis, Dr. Hawkins testified on cross-examination that he could not state an opinion to a reasonable degree of medical probability that Mr. Carley could be able to work a normal life expectancy as a Locomotive Engineer: Q. Is it your opinion to a reasonable degree of medical probability that Mr. Carley should be able to work as a locomotive engineer for the rest of his work life expectancy? A. It sounds like by this job analysis that he is suitable to do the job. I would think that if that is the case, he should be able to do it for a period of time. Whether he will be able to do it for the duration of his expected work time, I'm not so sure. But I suspect he should be able to do it for a period of time. In our experience, patients who have these problems and have multiple operations often have difficult getting back to work. I mean that's just - - even moderate duty responsibility. Q. But it appears that Mr. Carley has been able to do that? A. Well, this is a job evaluation wherein the individual, the physiotherapist, took a monitoring ride and did the whole thing and said he did that pretty good, and Mr. Carley felt he did it pretty good. And that's just one short test. Now if he does this every day,

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all day, forever, is he going to be able t do it? I mean, I ­ I don't know the answer to that. I think based on what we see here at this point in time, he seems capable of doing it. Id. at 72:10 to 73:9 (italics supplied). Thus, Dr. Hawkins' testimony that he could not render an opinion to a reasonable degree of medical probability on the issue of Mr. Carley's worklife expectancy came in response to Defendant's inquiry on cross-examination. Significantly, Defendant's Motion omits highly relevant testimony from Dr. Hawkins explaining why he could answer Defendant's question to a reasonable degree of medical certainty: Q. In order to determine that, though, wouldn't it be necessary to know how physically demanding the job is of a locomotive engineer? A. Well, there are a lot of factors that would go into that. There's the factors of how demanding it is. There's the factors of motivation . . . I mean this gentleman is a very good patient. He seems well motivated and I think he wants to work, and I think this is part ­ what he'd like to do and this seems a good fit for him to stay with the railroad. But there are so many factors that go into is he going to be able to make it. But the one factor is he's had three operations . He's got a problem and he's still got pain. So he's not going to be a happy camper with his shoulder tomorrow, regardless - - even going to bed a nighttime, he's still going to be unhappy with it. I mean that's - - you guys can sort of battle through all those issues. Id. at 76:23 to 77:18. Q. Doctor, Just to follow up on that. You know of course that locomotive engineers are sometimes required to do things that are well beyond the light duty category. Isn't that true? A. Well, I'd be concerned, yeah. Excuse me. It's always a problem with sort of what's light duty, and we fact this all the time with our patients. Well, they gave me light duty, but my job really sometimes ­ like a police officer who is on light duty 90% of his time, but then he has to wrestle a criminal. So I don't know that would be in the works for the heavy responsibilities being an engineer. I suspect there are some. But he could get his buddy to do it. Maybe. Id. at 78:5-18 (italics supplied). Testimony from lay witnesses during trial will demonstrate that the duties and physical tasks assigned to Locomotive Engineers often exceed what is considered to be light or sedentary work. These witnesses will also testify Defendant's frequently published goal in of reducing

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train crews from two to one with an Engineer working alone and without a Conductor. The testimony of these witnesses will demonstrate not only that Dr. Hawkins' reservations about Mr. Carley's worklife expectancy are prudent, but also that the factors that he cited in his testimony regarding Mr. Carley's ability to have a normal worklife expectancy are highly relevant. At most, Defendant's argument in support of its Motion to exclude Dr. Hawkins' opinion on Mr. Carley's worklife expectancy goes to the weight, rather than the admissibility of his opinion. Dr. Hawkins is an accomplished and experienced orthopedic surgeon who has engaged in his specialty of shoulder surgery on thousands of other patients. Reviewing the entire

substance of Dr. Hawkins testimony, including his qualifications and the ample factual foundation from his clinical are of Mr. Carley on which his testimony is based, it is clear that Dr. Hawkins' opinion that Mr. Carley will not have a normal worklife expectancy as a Locomotive Engineer represents Dr. Hawkins' professional judgment, and the weight of that opinion should be left to the jury. Defendant's Motion should therefore be denied. Respectfully submitted,

Dated September 12, 2005.

/s Fredric A. Bremseth BREMSETH LAW FIRM, P.C., 810 East Lake Street Wayzata, Minnesota 55391 Phone: (952) 475-2800 Fax: (952) 475-4584

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CERTIFICATE OF SERVICE I hereby certify that on this 12th day of September, 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] Mark C. Hansen Union Pacific Railroad Company 1331 17th Street, Suite 406 Denver, Colorado 80202 Fredric A. Bremseth Thomas W. Geng Bremseth Law Firm 810 East Lake Street Wayzata, Minnesota 55391 Sabina Y. Chung Jack D. Robinson Spies, Powers & Robinson, P.C. 1660 Lincoln Street, Suite 2220 Denver, Colorado 80264

[email protected]

[email protected]

I certify that there are no non-CM/ECF participants in this case. BREMSETH LAW FIRM By: Rebecca S. Martinson

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