Free Motion in Limine - 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 Judge Phillip S. Figa Civil Action No. 03-cv-02451-PSF-CBS

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

DEFENDANT'S MOTION IN LIMINE TO STRIKE TESTIMONY OF DR. HAWKINS RE: PLAINTIFF'S ABILITY TO CONTINUE TO WORK AS A LOCOMOTIVE ENGINEER FOR THE REMAINDER OF HIS WORK LIFE AND TO PROHIBIT PLAINTIFF FROM ARGUING THAT HE WILL NOT BE ABLE TO CONTINUE TO WORK AS A LOCOMOTIVE ENGINEER FOR THE REMAINDER OF HIS WORK LIFE

COMES NOW Defendant, Union Pacific Railroad Company, ("Union Pacific") by and through it's undersigned attorney, and hereby moves this Court for an order striking the testimony of Dr. Hawkins regarding Plaintiff's ability to continue to work as a locomotive engineer for the remainder of his work life and to prohibit Plaintiff from arguing that he will not be able to continue to work as a locomotive engineer for the remainder of his work life. 1. On July 11, 2002, conductor Bryce E. Carley claims that as he was

applying the hand brake on the car designated UPFE 466316 the rod linking the hand brake chain to the bell crank snapped causing him to injure his left shoulder. On

September 19, 2002, Dr. Cameron performed an arthroscopic surgery during which time

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she removed a large subacromial spur and found and repaired a tear in the labrum. Mr. Carley continued to complain of pain in his left shoulder and Dr. Cameron planned to perform another arthroscopic surgery to fix a loose tissue tack in the labrum. Mr. Carley transferred his care to Dr. Richard Hawkins of the Steadman Hawkins Clinic in Vail, Colorado. On February 18, 2003, Dr. Hawkins arthroscopically examined the left

shoulder and found a detached labrum, an intact rotator cuff, and a Bankart lesion on the glenoid surface. Dr. Hawkins performed a left shoulder Bankart repair, attached the labrum and performed a left shoulder thermal capsular shrinkage. On May 5, 2003, Mr. Carley was seen by Dr. Hawkins and at that time Mr. Carley reported that he had left shoulder pain which Dr. Hawkins thought was post-surgical subacromial scarring and stiffness. Dr. Hawkins injected the stiff left shoulder and

prescribed physical therapy. In the latter part of June, 2003, Dr. Hawkins performed an AC joint resection on Mr. Carley's left shoulder. On December 15, 2003, Mr. Carley complained to Dr. Hawkins that the AC joint resection did not relieve his left shoulder pain. Bronco Sports Medicine performed a Functional Capacity Evaluation in early October of 2004. The Union Pacific Medical Department reviewed this FCE and

released Mr. Carley to return to work as a conductor. Mr. Carley was afraid that if he returned to work as a conductor he would re-injure his left shoulder. However, he expressed some interest in returning to work as an engineer. Manager of Operating Practices Dave Stimac put Mr. Carley in the engineer training class starting on October 25, 2004. Mr. Carley's engineer seniority date was changed to the date he would have

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had if he had entered the engineer's class which started in the Fall of 2002. On April 15 of 2005 Mr. Carley became a fully qualified locomotive engineer with a seniority date that will ensure that he will never be put back as a conductor. 2. On March 4, 2005, the deposition of Dr. Hawkins was taken to preserve

his testimony for trial. Dr. Hawkins testified as follows: Examination by Mr. Hansen: Page Line 72 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page Line 73 1 2 3 4 5 6 7 8 9

Q. Is it your opinion to a reasonable degree of medical probability that Mr. Carley should be able to continue working 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 now, which it is, he should certainly 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 difficulty getting back to work. I mean that's just ­ even, you know, 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. So that's one short test. Now, if he does this every day, all day, forever, is he going to be able to 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.

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Examination by Mr. Geng Page Line 75 22 23 24 25 Page Line 76 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 3.

Q. You indicated during Mr. Hansen's questioning that he might not have a full life -- a complete or a full work life expectancy as a locomotive engineer. What factors in your mind would -- could shorten his career?

A. Well, he still has pain and he's had three operations. His shoulder doesn't work like he would like it to. And he hasn't been able to do the job as a conductor in his opinion I think, and in our opinion. And so he's going to a lighter job to hope that he can do that job. So I think the question remains. I would say the jury is out a little bit, pardon the pun, as to whether he will be able to do this job for the longevity of his working career. Personally I think it's probably a fifty-fifty. Q. And would that be based upon a reasonable degree of medical certainty? A. Fifty-fifty doesn't put me in medical certainty. Q. Reasonable degree of medical probability? A. That's why I had fifty-fifty. You've got to have 51 for probability. And I'm on 50. Yeah, I don't know the answer to that question. I would be concerned as to whether he would be able to do this job for the rest of his working life.

A medical opinion is admissible only if it can be expressed to a reasonable

degree of medical probability. Mere possibilities do not rise to the level of a reasonable degree of medical probability. Jacobs v. Commonwealth Highlands Theatres, Inc., 738 P.2d 6, 11 (Colo. App. 1987). Dr. Hawkins was unable to testify, to a reasonable degree of medical probability or certainty, that Mr. Carley will be unable to continue working as a locomotive engineer for the remainder of his work life. As such, the

questions and answers regarding this issue should be stricken. In addition, Plaintiff should not be allowed to argue that he has a diminished work life expectancy as a 4

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locomotive engineer in this case. In DeChico v. Metro-North Commuter Railroad, 758 F.2d 856 (2nd Cir. 1985) plaintiff, a railroad employee, injured his knee at work but was able to return to his former position as a shop superintendent. Plaintiff, at trial, argued that he should be entitled to damages for an impairment of his earning capacity if he presented evidence that his permanent injuries will restrict his future employment possibilities and make it more difficult for him to compete in the open labor market. The trial court refused to permit plaintiff to present evidence or argue that he had a loss of future earning capacity. The Second Circuit affirmed, stating: "Any suggestion that appellant might be forced to leave his regular employment with the railroad was too speculated to have supported a damage award on that theory." Id. at 862. 4. Courts have consistently held that doctors must testify with a reasonable

degree of medical certainty or the substantive equivalent. See Brandt v. Farnsworth, 869 F.2d 1149, 1152 (8th Cir. 1989) (chiropractor's testimony would not have assisted the jury because he could not state an opinion with a reasonable degree of medical certainty.); DaSilva v. American Brands, Inc., 845 F.2d 356, 361 (1st Cir. 1988) ("while at times [the doctor] did not choose the precisely proper wording for his responses, those responses generally reflected a conclusion based on a reasonable degree of medical certainty."). The testimony of Dr. Hawkins regarding the possibility that Plaintiff may have problems in the future is not admissible pursuant to F.R.E. 702. To be admissible, an expert must base his or her opinion on facts which enable the expert to express reasonably accurate conclusions. Although absolute certainty is not required, an opinion

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which is conjecture or speculation is not admissible. Gomez v. Martin Marietta Corp., 50 F.3d 1511 (10th Cir. 1995). The same rule has been applied in FELA cases. See Goebel v. The Denver & Rio Grande Western R.R. Co., 346 F.3d 987, 991 (10th Cir. 2003). The burden rests on a plaintiff in a FELA action to establish by sufficient evidence a factual basis for the damages sought. See Chesapeake & Ohio Ry. V. Kelly, 241 U.S. 485, 491; 36 S. Ct. 630, 632; 16 L.Ed. 1117 (1916). The determination of damages in a FELA action is governed by general principles of the law applied in federal courts. Jones v. Consolidated Rail Corp., 800 F.2d 590, 593 (6th Cir. 1986). Dr. Hawkins has testified that he cannot say to a reasonable degree of medical probability that the plaintiff will have problems with his shoulder in the future. He has said that it is, at best, 50-50, and indicated that it is only possible that he will have these problems. As a consequence, his testimony in this regard is speculative and unreliable. It is, therefore, not admissible pursuant to F.R.E. 702. 5. Dr. Hawkins' testimony is also not admissible because it is not relevant.

F.R.E. 401 defines relevant evidence as evidence "having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Dr. Hawkins has

testified that he cannot say that it is probable that the Plaintiff will be unable to continue to work as a locomotive engineer for the remainder of his work life. He can only testify as to a possibility. Thus, his testimony does not have a tendency to make a fact of consequence more or less probable than it would be without this evidence.

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6.

Plaintiff may argue that the testimony of Dr. Hawkins is marginally relevant

to the issue of Plaintiff's ability to continue to work as a locomotive engineer for the remainder of his work life. However, under F.R.E. 403, the marginal relevance of Dr. Hawkin's testimony on this issue is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury into thinking that Plaintiff is entitled to damages for the possibility that he may not be able to continue to work as a locomotive engineer for the remainder of his work life contrary to the clear law on this issue. 7. In the present case, Plaintiff was retrained as a locomotive engineer and

has been working successfully as a locomotive engineer for the past four months. The testimony of Dr. Hawkins the he may not be able to continue working as a locomotive engineer in the future is too speculative to support an argument that he may not be able to continue to work as a locomotive engineer for the remainder of his work life. The jury instructions on future damages contained in 3A K. O'Malley, J. Grenig, and W. Lee, Federal Jury Practice and Instructions, § 155.60 and § 155.62 (5th Ed. 2001) make it clear that for Plaintiff to recover damages for future earnings or future loss of earning capacity, Plaintiff must prove such losses to a reasonable certainty. Plaintiff, in this case, cannot prove any future loss of earnings or loss of future earning capacity to a reasonable degree of certainty, and as such, any evidence or testimony relating to this issue should be stricken and Plaintiff should be prohibited from presenting any evidence or argument relating to this issue at trial.

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Respectfully submitted this 8th day of September, 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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CERTIFICATE OF SERVICE I hereby certify that on this 8th 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] 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

[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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