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Walsh v. Norfolk Southern Corp.

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA


January 19, 2006

JAMES A. WALSH, PLAINTIFF
v.
NORFOLK SOUTHERN CORP. AND CONSOLIDATED RAIL CORP., DEFENDANTS

The opinion of the court was delivered by: Edwin M. Kosik United States District Judge

MEMORANDUM AND ORDER

We have before us the defendants' motion to preclude the testimony of Nicholas DePace, M.D., whose expert testimony plaintiff intends to call to establish causation of his occupational-related aggravation of his pre-existing cardiovascular disease, as well as pre- existing physical limitations.*fn1 While admitting to the doctor's credentials and experience as a board-certified internist and cardiologist, defendants claim his opinions lack reliability under the four non-exclusive factors under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).*fn2

Dr. DePace is an eminently qualified cardiologist. On a previous occasion when we denied the defense motion for summary judgment, Document 56, we had occasion to visit the causation issue and held:

On the issue of causation, the defense attempts to bolster its stand by references to the deposition testimony of one of plaintiff's medical experts, Nicholas DePace, M.D., whose diagnosis makes some attribution to stress and anxiety, along with other causes dealing directly with plaintiff's physical manifestations resulting from unsafe duties. At page 48, Dr. DePace states that his job responsibilities "attributed [contributed]" to his heart problems along with stress. On page 51 of his deposition, Dr. DePace was asked by defense counsel what specific job responsibilities contributed to plaintiff's condition. He attributed plaintiff's condition to required overworking without rest because of his erratic hours. At pages 55-56, he was asked if plaintiff was overworked. Again, his response was ". . . overworked with adverse working environments . . .". Coupled with the fact that plaintiff's strenuous work was being brought to the attention of his supervisors by plaintiff, and supported by fellow employees, the defendants were fully aware of his work conditions.

There is no dispute with the defense attempts to discredit the reliability of the doctor's opinion as lacking a factual foundation. We believe this goes to the credibility of the opinion more than its reliability. Accordingly, the motion is DENIED.

SO ORDERED.


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