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Rowley v. Union Pacific Railroad Co.

United States District Court, E.D. Wisconsin

November 3, 2016

DAVID ROWLEY, Plaintiff,


          LYNN ADELMAN District Judge.

         David Rowley worked for Chicago and Northwestern Railroad, which later became Union Pacific Railroad Company (Union Pacific), from 1974 to 2009. He worked on rail cars, inspecting and repairing them and changing their brake shoes and air hoses. In 1998, he was diagnosed with degenerative arthritis, also called osteoarthritis, in both hands. His condition worsened, and in 2008, he was diagnosed with erosive arthritis in both hands. In 2011, he brought this action against Union Pacific under the Federal Employers' Liability Act (FELA), 45 U.S.C. § 51, alleging that Union Pacific's negligence caused his osteoarthritis.

         Before me now are Union Pacific's motions to exclude proposed expert testimony from Marc Turina, an ergonomist; Andrew Jasek, Rowley's former treating physician; and Dennis Gates, a retained medical expert. The admissibility of expert testimony is governed by Rule 702 of the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and its progeny. “Rule 702 and Daubert require the district court to determine whether proposed expert testimony is both relevant and reliable.” Higgins v. Koch Dev. Corp., 794 F.3d 697, 704 (7th Cir. 2015) (citing Zelinski v. Columbia 300, Inc., 335 F.3d 633, 640 (7th Cir. 2003)). Union Pacific disputes only the reliability of the proposed expert testimony, not its relevance.


         Assessing reliability requires me to determine whether a given expert is qualified in the relevant field and whether he has employed a reliable methodology in arriving at his opinions. Id. “‘[E]xperts' work is admissible only to the extent it is reasoned, uses the methods of the discipline, and is founded on data.'” Id. at 705 (quoting Lang v. Kohl's Food Stores, 217 F.3d 919, 924 (7th Cir. 2000)). In Daubert, the Supreme Court provided a list of factors that may bear upon the reliability of expert testimony: “(1) whether the theory has been or is capable of being tested; (2) whether the theory has been subjected to peer review and publication; (3) the theory's known or potential rate of error; and (4) the theory's level of acceptance within the relevant community.” Bielskis v. Louisville Ladder, Inc., 663 F.3d 887, 894 (7th Cir. 2011) (citing Daubert, 509 U.S. at 593-94). But, “the test of reliability is ‘flexible, ' and Daubert's list of specific factors neither necessarily nor exclusively applies to all experts or in every case.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999). As such, “‘[a] district court enjoys broad latitude both in deciding how to determine reliability and in making the ultimate reliability determination.'” Higgins, 794 F.3d at 704 (alteration in original) (quoting Bryant v. City of Chicago, 200 F.3d 1092, 1098 (7th Cir. 2000)).

         II. MARC TURINA

         Marc Turina is a Certified Professional Ergonomist and licensed physical therapist with a master's degree in physical therapy, he has done continuing coursework in and attended seminars on ergonomics, and he has relevant professional experience as an ergonomic consultant. Turina opines that (1) exposure to “ergonomic risk factors” can cause “work-related musculoskeletal disorders” like osteoarthritis, (2) Rowley was regularly exposed to ergonomic risk factors throughout his thirty-five-year career, and (3) Union Pacific was aware of both the exposure Rowley faced and the disorders such exposure can cause but failed to take significant action to address the risks he faced. Turina based his opinions on his “education, training, personal investigation, review of applicable scientific literature, and over 18 years of experience in the field of ergonomics and musculoskeletal injury prevention and treatment, ” as well as his review of various case materials. ECF No. 60-2, at 1.

         Initially, Union Pacific argues that Turina is not qualified to offer an opinion on specific causation in this case (i.e., that Rowley's exposure to ergonomic risk factors did cause his osteoarthritis). This argument is moot because, according to Rowley, Turina “is not opining on specific causation” but is instead “offering a general causation opinion that the ergonomic risk factors he identifies as being present in the job tasks he analyzed are associated with the development of arthritis in the hands.” Pl.'s Mem., ECF No. 60, at 4.

         Turina derives his opinions from the general theory that exposure to recognized ergonomic risk factors-including awkward postures, forceful exertions, repetitive motions, contact stresses, and cold temperatures-can cause musculoskeletal disorders like osteoarthritis, which develop slowly over months or years. Turina cites a wealth of research in support of this theory, demonstrating that it has been extensively tested, has been repeatedly subjected to peer review and publication, and is generally accepted within the ergonomic and scientific communities. Thus, the theory fairs well under the Daubert factors. Turina further discusses how properly designed hand tools and the proper use thereof can minimize the risk of exposure to ergonomic risk factors. This too seems to be accepted in his field, though the extent to which it has been directly tested is unclear. Finally, Turina discusses the development of this body of knowledge and the extent to which private industry, including the railroads, has been aware of and involved in this research.

         Union Pacific does not directly challenge any of this but argues that Turina did not cite (and admitted during his deposition that he is not aware of) any research specific to osteoarthritis in the hands. According to Union Pacific, this means that the epidemiological research does not support Turina's opinions and his proposed testimony is, therefore, unreliable. Proposed expert testimony may be found unreliable where it is based on scientific studies that are too attenuated from or dissimilar to the facts of the case. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 144-45 (1997); C.W. ex rel. Wood v. Textron, Inc., 807 F.3d 827 (7th Cir. 2015). I can properly exclude Turina's proposed expert testimony if it is based on “an inferential leap.” Textron, 807 F.3d at 836.

         I find that Turina's proposed testimony does not require such a leap. Turina cites numerous resources, which Union Pacific does not challenge, in support of his opinions, including a review of relevant scientific literature from the National Institute for Occupational Safety and Health (NIOSH) synthesizing more than 600 scientific studies on the relationship between ergonomic risk factors and musculoskeletal disorders, a book on occupational disorders of the upper extremity that discusses the hands, and resources from NIOSH on the proper ergonomic design and use of hand tools. The research broadly supports Turina's opinions, and he need only take a small inferential step to apply it to the facts of this case. It is not so attenuated as to render his opinions unreliable.

         Union Pacific next argues that Turina's investigation of Rowley's exposure to ergonomic risk factors was insufficient. Turina reviewed the deposition testimony of two of Rowley's co-workers and safety videos from Union Pacific and spoke with Rowley about common tasks that he performed. Based on this, Turina examined two such tasks-changing brake shoes and changing air hoses-in terms of the physical actions required, the conditions under which the tasks were performed, and the tools that Union Pacific provided. He concluded that performing these tasks regularly exposed Rowley's hands to a combination of ergonomic risk factors, especially forceful exertions combined with high levels of contact stresses from the tools that Union Pacific provided, often in cold temperatures. He further concluded that Union Pacific could have, at least, provided tools that were better designed, which could have minimized Rowley's exposure.

         Union Pacific argues that Turina's opinions are unreliable because he failed to either conduct an on-site investigation or gather objective measurements of the ergonomic risk factors that Rowley faced in his job. Some courts have cited such methodological omissions as valid reasons for excluding similar proposed expert testimony. For example, in Brown v. Burlington Northern Santa Fe Railway Co., 765 F.3d 765 (7th Cir. 2014), the Seventh Circuit held that the district court had not abused its discretion in excluding proposed expert testimony in a FELA case alleging cumulative trauma, in part because the expert had failed to conduct an analysis of the plaintiff's job site. Id. at 773. However, that expert specifically said that such an analysis was necessary to his methodology. Id. at 770. If an expert fails to follow through with his own stated methodology, then his opinions may be found unreliable.

         Turina's proposed testimony is distinguishable from that of the expert in Brown. Turina never claimed that it was necessary for him to see Rowley's job site or observe him at work. In fact, he indicated during his deposition that he has found, based on past professional experience, that such direct observation and measurement do not necessarily yield reliable or representative results. That may be especially true in a situation like this one. Rowley has not worked for Union Pacific in years; it would be impossible to directly observe him at work now or accurately measure his exposure to ergonomic risk factors over the course of his ...

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