Hardy v. Union Pacific Railroad Company

Filing 80

ORDER. Union Pacific Railroad Companys Motion In Limine To Exclude Inadmissible Expert Testimony of Tyler Kress, Ph.D. 39 filed 9/8/2011 is DENIED. By Judge Robert E. Blackburn on 11/2/2011.(sah, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Case No. 10-cv-01880-REB–MJW
MARCUS E. HARDY,
Plaintiff,
v.
UNION PACIFIC RAILROAD COMPANY, a corporation,
Defendant.

ORDER DENYING DEFENDANT’S MOTION
TO EXCLUDE UNDER FED. R. EVID. 702
Blackburn, J.
This matter is before me on Union Pacific Railroad Company’s Motion In
Limine To Exclude Inadmissible Expert Testimony of Tyler Kress, Ph.D. [#39]1 filed
September 8, 2011. The plaintiff filed a response [#57]. I deny the motion.
I. STANDARD OF REVIEW
Rule 702 of the Federal Rules of Evidence, which governs the admissibility of
expert testimony, provides:
If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion or otherwise, if
(1) the testimony is based upon sufficient facts or data, (2)
the testimony is the product of reliable principles and
methods, and (3) the witness has applied the principles and

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“[#39]” is an example of the convention I use to identify the docket number assigned to a specific
paper by the court’s electronic case filing and management system (CM/ECF). I use this convention
throughout this order.

methods reliably to the facts of the case.
FED.R.EVID. 702. The standards outlined in Rule 702 implicate, of course, the
standards for admission of opinion testimony stated in the so-called Daubert trilogy.
Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993); Gen. Elec. Co. v. Joiner, 522
U.S. 136 (1997); Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). The
court’s application of the standards of Rule 702 and the related cases is “a flexible and
commonsense undertaking in which the trial judge is granted broad latitude in deciding
both how to determine reliability as well as in the ultimate decision of whether the
testimony is reliable.” Smith v. Ingersoll-Rand Co., 214 F.3d. 1235, 1243 (10th Cir.
2000) (internal quotation and citations omitted). The Supreme Court has described the
court’s role in weighing expert opinions against these standards as that of a
“gatekeeper.” See Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137, 147
(1999).
Under Daubert and its progeny, an expert opinion is reliable if it is based on
scientific knowledge. “The adjective ‘scientific’ implies a grounding in the methods and
procedures of science. Similarly, the word ‘knowledge’ connotes more than subjective
belief or unsupported speculation.” Daubert, 509 U.S. at 590. In short, the touchstone
of reliability is “whether the reasoning or methodology underlying the testimony is
scientifically valid.” Id. at 592 - 593; see also Truck Insurance Exchange v.
MagneTek, Inc., 360 F.3d 1206, 1210 (10th Cir. 2004). The party proffering the expert
opinion must demonstrate both that the expert has employed a method that is
scientifically sound and that the opinion is “based on facts which enable [the expert] to
express a reasonably accurate conclusion as opposed to conjecture or speculation.”
Goebel v. Denver and Rio Grande Western Railroad Co., 346 F.3d 987, 991 (10th
Cir. 2003) (quoting Gomex v. Martin Marietta Corp., 50 F.3d 1511, 1519 (10th Cir.
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1995)).
Rule 702 demands also that the expert’s opinion be relevant, that is, that the
testimony “fit” the facts of the case. Daubert, 509 U.S. at 591-592; In re Breast
Implant Litigation, 11 F.Supp.2d 1217, 1223 (D. Colo. 1998). “‘[T]he standard for fit is
higher than bare relevance.’” In re Breast Implant Litigation, 11 F.Supp.2d at 1223
(quoting In re Paoli Railroad Yard PCB Litigation, 35 F.3d 717, 745 (3rd Cir. 1994),
cert. denied, 115 S.Ct. 1253 (1995)). The proffered evidence must speak clearly and
directly to an issue in dispute in the case. Id.
Guided by these principles, the trial court has broad discretion in determining
whether expert testimony is sufficiently reliable and relevant to be admissible. Truck
Insurance Exchange, 360 F.3d at 1210; Smith v. Ingersoll-Rand Co., 214 F.3d 1235,
1243 (10th Cir. 2000). The overarching purpose of the court’s inquiry is “to make certain
that the expert . . . employs in the courtroom the same level of intellectual rigor that
characterizes the practice of an expert in the relevant field.” Goebel, 346 F.3d at 992
(quoting Kumho Tire Company, 526 U.S. at 152). Rule 702 requires that opinion
testimony be the product of reliable principles and methods, and that an opinion witness
has applied those principles and methods reliably to the facts of the case. The reliability
analysis applies to all aspects of an expert's testimony, including the facts underlying
the opinion, the methodology, and the link between the facts and the conclusion drawn.
Heller v. Shaw Indus., 167 F.3d 146, 155 (3d Cir.1999). Consequently, the court must
make a practical, flexible analysis of the reliability of the testimony, considering relevant
factors and the circumstances of the case. See, e.g., Kumho Tire, 526 U.S. at 149-52;
Heller, 167 F.3d at 155.
Generally, “rejection of expert testimony is the exception rather than the rule.”
U.S. v. Nacchio, 519 F.3d 1140, 1154 (10th Cir. 2008) (quoting Fed. R. Evid. 702 ,
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2000 Advisory Comm.'s Notes). “Vigorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof are the traditional and
appropriate means of attacking shaky but admissible evidence.” Daubert, 509 U.S. 579
at 596.
II. ANALYSIS
The plaintiff, Marcus E. Hardy, is a conductor who worked for the defendant,
Union Pacific Railroad Company, for 35 years. In this lawsuit, Hardy asserts two
theories of recovery against Union Pacific. First, he alleges that his “chronic and
permanent injuries to his spine and neck” were caused “cumulatively” from his 35 years
of operating a locomotive. Hardy contends, in essence, that long term exposure to the
vibrations in a locomotive and the lack of equipment to protect him from the effect of the
vibrations caused his injuries. Second, he alleges that as a result of a switch throwing
incident on May 18, 2010, he “received acute and permanent injuries to his back and
legs.” Complaint [#1], ¶¶ VI, VII. These injuries, Hardy contends, were caused by the
negligence of Union Pacific.
In its present motion, Union Pacific challenges the admissibility of the opinion
testimony of Tyler Kress, Ph.D, a putative expert witness endorsed by the plaintiff.
Kress is an industrial ergonomist. He has significant relevant training in a variety of
fields, including engineering, biomechanics, and human factors engineering.
Kress offers two opinions in his report. Motion in limine [#39], Exhibit B (Kress
Report), p. 6. First, Kress opines that “Mr. Hardy’s work at the railroad exposed him to
risk factors that are definitely associated with and consistent with his injuries.” Id. This
opinion concerns whole body vibration and musculoskeletal disorders. Id. Second,
Kress concludes that Union Pacific “failed to apply appropriate job design procedures,
causing Mr. Hardy’s work environment to be inadequate with respect to safety.” Id. This
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opinion concerns also the “vibrational risk” Kress says is presented by long term
operation of a locomotive. Id.
In its motion, Union Pacific argues that Kress’s opinions are not admissible under
Rule 702 because they are not sufficiently reliable. This is true, Union Pacific contends,
because Kress did not perform an on-site investigation to gather case-specific data, he
has no objective, quantitative measurements obtained for this case, and he cites no
specific epidemiological studies that support his opinions.
Based on the information provided in Kress’s report, I disagree with Union
Pacific’s argument. When gathering information for his report, Kress interviewed Hardy
and reviewed a variety of information relevant to Hardy’s experience as a Union Pacific
Employee and Hardy’s medical condition. Kress Report, p. 2. These sources of
information specific to Hardy may not be perfect, but they are sufficient to provide Kress
with information specific to Hardy and relevant to Kress’s analysis. In addition, Kress
reviewed data concerning the vibrational environment in railroad locomotives and seat
design in locomotives. Id., pp. 2 - 5 & Exhibit A. Some of this information concerns the
type of locomotives sometimes used by Hardy when working for Union Pacific. Finally,
Kress does cite epidemiological studies relevant to his analysis. Id., Exhibit C.
Under Rule 702, opinion testimony must be “based on facts which enable [the
expert] to express a reasonably accurate conclusion as opposed to conjecture or
speculation.” Goebel v. Denver and Rio Grande Western Railroad Co., 346 F.3d
987, 991 (10th Cir. 2003) (quoting Gomex v. Martin Marietta Corp., 50 F.3d 1511, 1519
(10th Cir. 1995)). Kress gathered information concerning the vibrational environment in
locomotives generally and Hardy’s experience working on Union Pacific locomotives
specifically. This information constitutes sufficient facts and data on which Kress may
base his opinions concerning the vibration environment to which Hardy was exposed
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and whether that exposure is associated and consistent with Hardy’s claimed injuries.
Further, Kress’s report demonstrates that he had sufficient facts and data concerning
Union Pacific’s knowledge of problems with vibrational environments and the availability
of equipment to mitigate those known problems. To the extent Kress’s facts and data or
methodology may be inaccurate, incomplete, or otherwise imperfect, those flaws go to
the weight to be ascribed to his opinions, and not to their admissibility.
III. CONCLUSION & ORDER
The report of Tyler Kress, an expert witness endorsed by the plaintiff,
demonstrates that Kress’s opinion testimony is admissible under Fed.R.Evid. 702. The
opinions expressed in the report are based on sufficient facts or data, are the product of
reasonably reliable principles and methods, and Kress has applied the principles and
methods reliably to the facts of the case. Any flaws in Kress’s gathering of relevant
facts and data or in his analysis go to the weight to be ascribed to his opinions, and not
to their admissibility.
THEREFORE, IT IS ORDERED that Union Pacific Railroad Company’s
Motion In Limine To Exclude Inadmissible Expert Testimony of Tyler Kress, Ph.D.
[#39] filed September 8, 2011, is DENIED.
Dated November 2, 2011, at Denver, Colorado.
BY THE COURT:

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