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Houser v. Norfolk Southern Railway Co.

United States District Court, M.D. Pennsylvania

July 3, 2019

ROBERT HOUSER, Plaintiff,
v.
NORFOLK SOUTHERN RAILWAY COMPANY, Defendant.

          ORDER

          MATTHEW W. BRANN UNITED STATES DISTRICT JUDGE

         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 limine[3] filed by Norfolk Southern to preclude certain evidence at a jury trial scheduled to begin on July 29, 2019.

         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 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 condition[8] 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 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. 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 risk-creating 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 deposition[17]and in a personal discussion with the ergonomics expert[18]); 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-and-data 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 tool[21] 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 study[23] showing a causal connection between epicondylitis and certain risk factors, and has considered evidence[24] 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.

         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 ...


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