HOUSER v. NORFOLK SOUTHERN RAILWAY COMPANY

Filing 71

ORDER - IT IS HEREBY ORDERED that Norfolk Southern's 57 Motion in Limine to Preclude Evidence of Future Wage Loss is DENIED. Norfolk Southern's 59 Motion in Limine to Preclude the Expert Testimony of Colin Brigham is GRANTED IN PART and DENIED IN PART. (See Order for further details.) Signed by Honorable Matthew W. Brann on 7/3/2019. (jr)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
No. 4:16-CV-01517

ROBERT HOUSER,

(Judge Brann)

Plaintiff,
v.
NORFOLK SOUTHERN
RAILWAY COMPANY,
Defendant.
ORDER
JULY 3, 2019

On May 10, 2016, Robert Houser initiated this action against Norfolk
Southern Railway Company.1 His complaint, brought under the Federal Employers’
Liability Act,2 alleges that he developed medial epicondylitis (i.e., tendinitis in his
elbow) while employed by Norfolk Southern, and that his injury was caused by
Norfolk Southern’s negligence. Before the Court are two motions in limine3 filed
by Norfolk Southern to preclude certain evidence at a jury trial scheduled to begin
on July 29, 2019.

1

ECF No. 1.

2

45 U.S.C. § 51 et seq.

3

ECF Nos. 57, 59.

Motion in Limine to Preclude
Evidence of Future Wage Loss
Mr. Houser has employed a vocational expert and an economic expert. The
vocational expert opines that Mr. Houser has no post-injury earning capacity.4
Based on that opinion, the economics expert opines that Mr. Houser’s lost earnings
total $422,791.5 Norfolk Southern believes these opinions are flawed because there
is no evidence that Mr. Houser is completely disabled, and therefore moves this
Court, pursuant to Federal Rules of Evidence 403 and 702, to preclude Mr. Houser
from presenting evidence about future wage loss.6
It is true that Mr. Houser’s doctor allowed him to return to work in 2014,
mentioning only that his epicondylitis would likely flare up in the future. It is also
true that, in 2017, the doctor admitted that he had not seen Mr. Houser since 2014
and therefore “d[id] not know if [Mr. Houser] [was] healed or not” and “[could not]
make an educated opinion as to his restrictions or disability.”7 The vocational and

4

See Expert Report of Terry Leslie (ECF No. 57-1) at 6 (“It is my professional opinion that the
combination of Mr. Houser’s age, limited education, physical limitations, lack of transferable
skills[,] and geographic result in him not having a post-injury earning capacity.”).

5

See Expert Report of Jeffrey Willoughby (ECF No. 57-2) at 4.

6

Mr. Houser filed no brief in opposition to this motion; it is therefore considered unopposed.
See Local Rule 7.6 (“Any party who fails to [file a brief in opposition to a motion] shall be
deemed not to oppose such motion.”). That choice is surprising, particularly since more than
50% of the damages sought by Mr. Houser relate to wage loss. See Mr. Houser’s Pretrial
Memorandum (ECF No. 61) § D (noting that he is seeking $422,791 for lost wages and
$400,000 for pain and suffering).

7

April 14, 2017 Letter from Dr. John C. Sefter to Plaintiff’s Counsel (ECF No. 57-3).
2

economics experts, however, rely on more than this doctor’s medical diagnoses (or
lack thereof). The vocational expert conducted an independent assessment of Mr.
Houser’s physical condition8 and further relied on Mr. Houser’s “age, limited
education, . . . lack of transferable skills[,] and [the] geographic area [in which he
lives]” when forming an opinion about Mr. Houser’s post-injury earning capacity.9
And the economics expert simply relied on the vocational expert’s opinion to
calculate how much Mr. Houser would have earned had he been able to keep
working.
This motion, therefore, will be denied.
Motion in Limine to Preclude the
Testimony of Mr. Houser’s Ergonomics Expert
Mr. Houser has also employed an ergonomics expert who opines on (1) the
presence of certain ergonomic risk factors in Mr. Houser’s work for Norfolk
Southern;10 (2) the causal relationship between those risk factors and Mr. Houser’s

8

See Expert Report of Terry Leslie at 2 (“[Mr. Houser] continues to experience pain in his elbow
specifically on the medial side radiating 5”-6” towards his wrist. He has difficulty putting
stress on his left arm and if he pumps his arm, he has significant pain.”).

9

Id. at 6.

10

Expert Report of Colin J. Brigham at 4 (“The National Institute for Occupational Safety and
Health (NIOSH) stated that “There is strong evidence for a relationship between exposure to a
combination of risk factors (e.g., force and repetition, force and posture) and epicondylitis.”
These risk factors were present throughout Mr. Houser’s employment.”).
3

epicondylitis;11 (3) the existence of scientific literature showing the prevalence of
medial epicondylitis in the railroad industry and that condition’s association with the
use of certain tools;12 and (4) the lack of evidence showing any effort by Norfolk
Southern to reduce ergonomic risk in the job Mr. Houser performed for Norfolk
Southern.13 Norfolk Southern argues that these opinions should be excluded, also
pursuant to Federal Rules of Evidence 403 and 702.
Qualifications
Norfolk Southern attacks the ergonomics expert’s qualifications.

First,

Norfolk Southern argues that the expert is not qualified to opine on the presence of
certain ergonomic risk factors in Mr. Houser’s work for Norfolk Southern because
the expert lacks railroad-specific ergonomics experience. This Court disagrees,
since the expert has a wealth of experience in the field of ergonomics generally.14
Second, Norfolk Southern argues that the ergonomics expert is not qualified
to opine on the causal relationship between certain ergonomic risk factors and Mr.

11

Id. (“It is more likely than not that the ergonomic risk associated with Mr. Houser’s
employment with Norfolk Southern Railway System was a significant causative factor in his
development of bilateral medial epicondylitis of his elbows.”).

12

Id. (“There is documentation in the scientific literature regarding the prevalence of this disorder
in the railroad industry, associated primarily with the use of railroad spike mauls and other
hand tools.”).

13

Id. (“While Norfolk Southern Railway System had documents stating that they continually
sought to reduce ergonomic risk, there was no evidence provided that they had done so in the
type of work (as part of a bridge gang) performed by Mr. Houser.”).

14

See Curriculum Vitae of Colin J. Brigham (ECF No. 59-1) at 2-3 (listing numerous examples
of previous work involving ergonomics).
4

Houser’s epicondylitis, because the ergonomics expert is not medically trained. This
Court agrees,15 and will exclude that portion of the ergonomics expert’s testimony.
The Ergonomics Expert’s Opinion
on the Presence of Certain Ergonomic Risk
Factors in Mr. Houser’s Work for Northern Southern
Norfolk Southern then attacks the expert’s opinion on the presence of certain
ergonomic risk factors in Mr. Houser’s work for Norfolk Southern. First, Norfolk
Southern argues that this opinion should be excluded as lacking a sufficient basis of
facts or data, since the expert failed to measure and quantify several aspects of that
work, including how often and for how long Mr. Houser performed certain riskcreating activities, and how much force or vibration was involved in specific tasks.
These investigative gaps are indeed valid concerns, and may be fertile ground for
vigorous cross examination. However, despite Norfolk Southern’s protestations, it
is not true that the ergonomics expert “failed to perform an analysis of [Mr.
Houser’s] job.”16 To the contrary, the ergonomics expert has considered Mr.
Houser’s description of his job duties (which description was given in a deposition17

Norfolk Southern, in fact, concedes that “[t]o the extent that [the ergonomics expert] intends
to testify about risk factors in the workplace, that testimony would be consistent with the
background of an ergonomist.” Norfolk Southern’s Reply Brief at 5.
15

See Brenner v. Consolidated Rail Corp., 806 F. Supp. 2d 786, 791 (E.D. Pa. 2011) (excluding
ergonomic expert’s medical causation opinion).

16

Norfolk Southern’s Brief in Support (ECF No. 60) at 17.

17

See Expert Report of Colin J. Brigham at 2 (“In his deposition (pages 69-70 and other[s]),
Robert Houser described the work activities he performed that he felt to be physically
demanding, leading to his elbow discomfort and eventual disorder.”)
5

and in a personal discussion with the ergonomics expert18); has analyzed Mr.
Houser’s work equipment and how it is used;19 and has reviewed a job demand form
completed by Norfolk Southern that describes some of the physical demands made
on someone in Mr. Houser’s occupation.20
Second, Norfolk Southern argues that this opinion should be excluded because
of reliability concerns about the principles and methods used by the expert, and the
expert’s application of those principles and methods. As with the expert’s fact-anddata collection, there are certainly weaknesses with the expert’s methodology that
are ripe for cross examination, such as concerns about the way the expert utilized a
certain risk analysis tool21 and the expert’s reliance on a study that has nothing to do
with medial epicondylitis.22 The ergonomics expert, however, has supported his
opinion with a study23 showing a causal connection between epicondylitis and

18

Id. at 3 (noting “a discussion [the ergonomics expert] had with Mr. Houser” about the practices
and equipment involved in his job with Norfolk Southern).

19

Id. at 2 (describing the physical attributes of a spike maul and the way that tool is used to drive
railroad spikes).

20

Id. at 2 (noting that the form “provides frequency and weight details for a variety of different
tasks”).

21

See Expert Report of Colin J. Brigham at 3 (“The Moore-Garg Strain Index is [a] scientifically
validated ergonomic risk analysis tool . . . I used this tool to evaluate the job performed by Mr.
Houser . . . . The overall strain index score was 9.0. Anything >7 is rated hazardous.”);
Affidavit of Greg G. Weames (ECF No. 66-1; ¶¶ 14, 17 (opining that the ergonomics expert
failed to collect the data needed to complete and apply the Strain Index properly).

22

See Expert Report of Colin J. Brigham, Attachment 3 (discussing the “possibility of cumulative
trauma in the form of low back pain or injury,” but not in the form of elbow pain or injury).

23

See Expert Report of Colin J. Brigham, Attachment 2. This NIOSH study finds “strong
evidence [showing] a relationship between exposure to a combination of risk factors (e.g. force
6

certain risk factors, and has considered evidence24 showing the presence of such risk
factors in Mr. Houser’s work for Norfolk Southern.25
Third, Norfolk Southern argues that this opinion should be excluded under
Rule 403, asserting that the probative value of the ergonomics expert’s opinion on
the presence of some quantity and quality of risk factors in Mr. Houser’s work for
Norfolk Southern would be substantially outweighed by the prejudice to Norfolk
Southern of such testimony, or by the possibility that such testimony will confuse
the issues or mislead the jury. This Court, however, is not convinced that a jury
would be unable to appreciate the opinion’s weaknesses or would be seriously
distracted by it.

and repetition, force and posture) and epicondylitis.” Id. at 4-1. Norfolk Southern points out
that study’s failure to find a relationship between Mr. Houser’s elbow condition and “repetitive
work,” or between Mr. Houser’s elbow condition and “postural factors,” to argue that the
expert should not have relied on it. A study’s failure to find a correlation between a medical
condition and a single risk factor in isolation, however, devalues neither the study’s finding of
a correlation between a medical condition and multiple risk factors in combination, nor the
reliability of an expert who relies on that study.
24

See supra notes 17 and 18.

25

Norfolk Southern also moves to exclude this opinion under Rule 403, asserting that the
relevance of the ergonomics expert’s assertion of the presence of some unknown quantity and
quality of risk factors in Mr. Houser’s work for Norfolk Southern is substantially outweighed
by the prejudice to Norfolk Southern of such testimony, or by the possibility that such
testimony will confuse the issues or mislead the jury.
7

For all those reasons, and because of the Rules’ “strong preference” in favor
of admissibility,26 the ergonomics expert will be allowed to opine on the presence of
certain ergonomic risk factors in Mr. Houser’s work for Norfolk Southern.
The Ergonomics Expert’s Opinion
on the Existence of Scientific Literature Showing
the Prevalence of Medial Epicondylitis in the Railroad Industry
Norfolk Southern argues that the expert’s opinion regarding the existence of
scientific literature showing the prevalence of medial epicondylitis in the railroad
industry should be excluded because of an absolute lack of such literature. This
Court agrees. The ergonomics expert cited two studies in his report: the first dealt
with medial epicondylitis but did not discuss that condition’s association with work
in the railroad industry,27 and the second dealt with work in the railroad industry but
did not discuss medial epicondylitis.28 No other study appears on the face of the
ergonomics expert’s report, and Mr. Houser fails to point to support for this opinion
in any other way. This opinion, therefore, will be excluded.

26

See Pineda v. Ford Motor Co., 520 F.3d 237, 243 (3d Cir. 2008) (“The Rules of Evidence
embody a strong preference for admitting any evidence that may assist the trier of fact. . . .
Rule 702, which governs the admissibility of expert testimony, has a liberal policy of
admissibility.”).

27

See Expert Report of Colin J. Brigham, Attachment 2 (discussing the “relationship between
exposure to a combination of risk factors . . . and epicondylitis) (emphasis added).

28

See Expert Report of Colin J. Brigham, Attachment 3 (discussing the “possibility of cumulative
trauma in the form of low back pain or injury” from the use of certain railroad industry hand
tools).
8

The Ergonomics Expert’s Opinion on the
Lack of Evidence Showing Any Effort by Norfolk
Southern to Reduce Ergonomic Risk in Mr. Houser’s Job
Norfolk Southern argues the expert’s research into its ergonomic riskreduction efforts was insufficient, and that this Court should therefore exclude the
expert’s opinion on this topic.29 This Court disagrees, since Norfolk Southern itself
admits that the expert reviewed more than 3,000 pages of documents on the subject.30
Disposition
For those reasons, IT IS HEREBY ORDERED that:
1.

Norfolk Southern’s Motion in Limine to Preclude Evidence of Future
Wage Loss, ECF No. 57, is DENIED.

2.

Norfolk Southern’s Motion in Limine to Preclude the Expert Testimony
of Colin Brigham, ECF No. 59, is GRANTED IN PART and DENIED
IN PART as follows:
a.

Mr. Brigham IS PRECLUDED from testifying that Mr.
Houser’s epicondylitis was caused by his work for Norfolk
Southern.

29

Norfolk Southern also argues, in passing and without further elucidation, that “this opinion
does not constitute scientific testimony that will assist the jury.” Norfolk Southern’s Reply
Brief at 17. Because Norfolk Southern has provided virtually no support for, or analysis of,
this argument, this Court will not consider it.

30

Norfolk Southern’s Brief in Reply at 7, 18.
9

b.

Mr. Brigham IS PRECLUDED from testifying about the
existence of scientific literature showing the prevalence of
medial epicondylitis in the railroad industry and that condition’s
association with the use of certain tools.

c.

The motion is otherwise DENIED.

BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
United States District Judge

10