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STASIOR v. AMTRAK

August 28, 1998

JOANNE STASIOR, Plaintiff,
v.
NATIONAL RAILROAD PASSENGER CORPORATION, d/b/a AMTRAK, Defendant.



The opinion of the court was delivered by: WILLIAMS

MEMORANDUM OPINION AND ORDER

 Plaintiff Joanne Stasior filed this action on March 30, 1995, under the Federal Employers Liability Act, 45 U.S.C. §§ 51-60 ("FELA") seeking damages for carpal tunnel syndrome of the right hand and tendonitis and tenosynovitis of both hands allegedly sustained during the course of her employment with Defendant National Railroad Passenger Corporation. Defendant now moves the court to bar the expert testimony of Gary Herrin and Michael Shinnick under Rule 702 of the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993). Defendant also moves the court to enter summary judgment on its behalf under Rule 56 of the Federal Rules of Civil Procedure on the grounds that Stasior cannot produce any admissible evidence to support her FELA claim. For reasons set forth below, the court grants defendant's motion to bar Stasior's expert testimony under Rule 702 and Daubert, and thereby grants defendant's motion for summary judgment.

 Background

 Plaintiff Joanne Stasior ("Stasior") began working for Defendant National Railroad Passenger Corporation ("Amtrak") as a reservation sales agent at Amtrak's Chicago facility on April 4, 1977. (Stasior Dep. at 18.) Except for medical leave for unrelated back surgery in 1981, Stasior worked for Amtrak continuously from April 1977 until May 1992. (Stasior Dep. at 49-50.) Around August 1991, while working in the Reservation Sales Office ("RSO"), Stasior began to experience tingling in her hands and sharp pains in her wrists. (Stasior Dep. at 79.) Because of these symptoms, Stasior purchased wrist splints for both hands in August 1991. (Stasior Dep. at 79.)

 On May 1, 1992, having lost all tolerance of pain, Stasior went to Loyola Hospital Emergency Room. After learning of her occupation, the emergency room doctor told Stasior that he believed the diagnosis was carpal tunnel syndrome ("CTS"). (Stasior Dep. at 84-85.) A third year resident, while examining Stasior, also rendered a diagnosis of tendonitis. (Stasior Dep. at 90.) In October 1992, Stasior had surgery on her wrists performed by another doctor, Dr. Gerald Harris, who also had diagnosed her condition as CTS. (Stasior Dep. at 89-90.)

 Because Stasior's pain did not recede after the surgery, Dr. Harris reviewed with Stasior in 1994 how she should modify her work station so as to alleviate her pain. (Harris Dep. at 36.) This advice included having a built-in rest period from typing of 15 minutes every hour. (Harris Dep. at 37.) On Stasior's last visit to Dr. Harris *fn1" , he noted that she still had severe pain from CTS in both wrists, that she could only work three to four days a week because of this pain, that she used a computer all day when she was at work, and that she was not getting the required hourly rest breaks. (Harris Dep. at 73.)

 On March 30, 1995, Stasior filed this action under FELA alleging that in the course of performing her work as a reservation sales clerk with equipment provided by Amtrak, she sustained CTS of the right hand, including weakness, numbness, and damage to the nerves in the right hand; and tendonitis and tenosynovitis of both hands. (Stasior's Complaint P 5.) Stasior alleges that her injuries resulted in whole or in part from Amtrak's negligent failure to provide her with reasonably safe working conditions. (Stasior's Complaint P 6.) Stasior seeks damages in an amount in excess of $ 50,000. (Stasior's Complaint P7.)

 On February 9, 1996, Amtrak filed a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure, arguing that Stasior's claim was barred by the applicable statute of limitations. On September 19, 1996, this court denied Amtrak's motion. Stasior v. National Railroad Passenger Corporation, 1996 U.S. Dist. LEXIS 14483, No. 95 C 1958, 1996 WL 568796 (N.D. Ill. September 27, 1996).

 In support of its claim that it did not cause Stasior's injuries, Amtrak provides the expert testimony of professional ergonomist David T. Ridyard. Ridyard compiled a report which quantitatively analyzes the ergonomic conditions at Stasior's work station. Ridyard states that Stasior's work regimen as a reservation sales agent involves neutral wrist posture, low frequency keystrokes, and low force of keystrokes. (Ridyard Report at 2-5.) Ridyard concludes "that there are no potential carpal tunnel syndrome and other upper extremity cumulative trauma disorder risk factors at the Chicago Amtrak facility." (Ridyard Report at 6.) Amtrak also cites a scientific study which finds that while CTS is strongly associated with high force-high repetitive jobs and to a lesser extent with low force-high repetitive jobs and high force-low repetitive jobs, CTS is not associated at all with low force-low repetitive jobs. Furthermore, the study stated that often cited awkward postures are not found to be strong predictors of CTS. Barbara A. Silverstein, Ph.D. et al. Occupational Factors and Carpal Tunnel Syndrome. 11 American Journal of Industrial Medicine 343, 353 (1987).

 On January 16, 1998, Stasior moved the court to bar Ridyard's testimony. On January 21, 1998, this court denied Stasior's motion.

 To support the causation and foreseeability elements of her FELA claim, Stasior has provided the expert testimony of two professional ergonomists, Gary D. Herrin, Ph.D. and Michael Shinnick, Ph.D.

 A. Gary D. Herrin, Ph.D.

 Dr. Herrin has a Ph.D. in industrial and systems engineering, and he is a professor of industrial and operations engineering at the University of Michigan. (Herrin Dep. at 129.) Throughout his career at the University of Michigan, Dr. Herrin participated in 35 research projects tracking a variety of occupational risk factors as they relate to injury. (Herrin Dep. at 59-62.) Moreover, while Dr. Herrin is not an epidemiologist, he teaches epidemiology, and he has served as a statistician for approximately four epidemiological studies specifically investigating cumulative trauma disorders. (Herrin Dep. at 59-62.) One of these studies found an association between occupational risk factors and CTS. (Herrin Dep. at 65.) In his consulting and teaching activities both inside and outside the University of Michigan, Dr. Herrin has specifically addressed occupational hand use and CTS. (Herrin Dep. at 85.) As a professor of industrial and operations engineering, Dr. Herrin has gained roughly 25 years of experience as an ergonomist. (Herrin Dep. at 130.) Dr. Herrin used to be the director for the Center for Ergonomics at the University of Michigan. (Herrin Dep. at 130.) Throughout his career, Dr. Herrin has trained thousands of people with regard to the entire ergonomics process. (Herrin Dep. at 131.) Dr. Herrin acknowledges that he has never conducted a peer-reviewed study investigating the hypothesized relationship between occupational hand use and cumulative trauma disorders (CTDs). (Herrin Dep. at 85, 96, 100.)

 In preparing his report and testimony for this litigation, Dr. Herrin read various depositions, including Stasior's; conducted a personal interview with Stasior; visited Stasior's work station on January 23, 1997; read Amtrak's safety rules; reviewed Stasior's medical records; and reviewed various articles from ergonomic literature. (Herrin Report; Herrin Dep. at 7, 13, 14-15, 22.) Dr. Herrin read between 50-100 articles from the ergonomic literature, as well as a book entitled Work Related Musculoskeletal Disorders. (Herrin Dep. at 10, 18-20, 69-70.) Dr. Herrin's method for selecting these articles consisted of performing a word search on four computer databases for all articles whose abstracts or titles contained the words "office ergonomics." (Herrin Dep. at 19.) Dr. Herrin opines that Stasior's CTS and chronic tendonitis were caused by essentially three occupational risk factors which he observed while visiting Chicago's Amtrak facility in January 1997.

 The first risk factor cited by Dr. Herrin is awkward "wrist posture." Dr. Herrin observes that Stasior could not touch the floor with her feet while working even when her chair was adjusted to the lowest possible position. (Herrin Dep. at 40.) According to Dr. Herrin, because Stasior adjusted her chair to the lowest possible position, and because the keyboard was positioned on the work table, Stasior had to raise her arms in order to reach the keyboard. Dr. Herrin documents these observations by providing measurements of Stasior's chair, work table, and Stasior herself. (Herrin Report at 3.) Dr. Herrin concludes that the configuration of Stasior's work station caused her to suffer wrist-flexion and wrist tension while she keyed. (Herrin Dep. at 8-9, Herrin Report at 3-4.) Dr. Herrin concedes that he does not know the percentage of time during which Stasior's wrists were in an awkward posture because Dr. Herrin spent a total of 20 minutes observing Stasior at her workstation. (Herrin Dep. at 193.) Dr. Herrin also concedes that he did not quantify the extent of the "awkward posture" risk factor. (Herrin Dep. at 208.)

 The second risk factor cited by Dr. Herrin is "repeated and sustained hand exertions." Dr. Herrin states in his report that Stasior spent 7.5 hours per day keyboarding, and that this exposure time, combined with Amtrak's productivity standard of 92% talk-time, created the most commonly-recognized risk factor in office work. (Herrin Report at 4.) Dr. Herrin cites an epidemiological study by Dr. Laura Punnett, which he states "provides a nice summary of recent research on this subject and supports the above opinion." (Herrin Rep. at 4.) In addition, Dr. Herrin states that "Ms. Stasior was not afforded sufficient rest periods to avoid development of cumulative trauma disorders." (Herrin Report at 4.)

 However, testimony from Dr. Herrin's deposition demonstrates that his report is not entirely accurate in its analysis of "repeated and sustained hand exertions" at Stasior's work station. Dr. Herrin concedes in his deposition that his statement that "Stasior spends over 7.5 hours per day keyboarding," is inaccurate, and that Stasior actually keyboards roughly ten seconds per minute, which is a relatively low-frequency. (Herrin Dep. at 181.) *fn2" Moreover, Dr. Herrin acknowledges in his deposition that he did not perform any studies to determine whether decreasing the time she spent at the keyboard would have resulted in a similar decrease in her symptoms. (Herrin Dep. at 204-205.) Finally, Dr. Herrin concedes in his deposition that he has no idea what kind of rest periods Stasior was allowed to take in 1991 and before. (Herrin Dep. at 176-178.)

 The third risk factor cited by Dr. Herrin is psychosocial pressure. *fn3" To support his statement that psychosocial factors contribute significantly to the development of musculoskeletal disorders in office work, Dr. Herrin attaches an article by Steve Sauter and Naomi Swanson describing the relevant research literature. (Herrin Report at 4.)

 In addition to identifying the three risk factors cited above, Dr. Herrin states in his report that Amtrak "did not provide Ms. Stasior with adequate training on the occupational and personal risks associated with CTDs," and he concludes that such lack of training also contributed to Stasior's CTDs. (Herrin Report at 5.)

 Dr. Herrin concedes at multiple points during his deposition that he did not test his hypothesis that awkward posture, repetition, and psychosocial pressures at Amtrak's RSO contributed to Stasior's CTS and chronic tendonitis. Dr. Herrin did not perform any kind of study to determine the number of reservation sales agents in Amtrak's Chicago RSO experiencing discomfort. (Herrin Dep. at 52-53, 199, 203-204.) In addition, Dr. Herrin concedes that he did not perform any type of statistical analysis of the frequency of CTS in a work force similar to Amtrak's Chicago RSO to test his hypothesis. (Herrin Dep. at 205.) Dr. Herrin also stated that he does not intend to publish for peer-review his conclusion regarding causation in this case. (Herrin Dep. at 205.)

 In addition to confirming that he did not validate any of his opinions through testing, Dr. Herrin implicitly concedes in his deposition that his methodology as to causation was "invalid." First, Dr. Herrin states that in order for a conclusion on causation to be valid, such a conclusion must rely on epidemiological studies. (Herrin Dep. at 74.) Dr. Herrin also concedes that one cannot render a conclusion regarding causation based on a single case study. (Herrin Dep. at 74.) Elsewhere in his deposition, Dr. Herrin concedes that he did not rely on epidemiology in formulating his opinion. (Herrin Dep. at 74, 189.) Moreover, despite having read between 50-100 articles from the ergonomics literature, Dr. Herrin cannot cite in his report or in his deposition any scientific or epidemiological studies showing that low-force, low-repetition occupations such as Stasior's are associated with CTDs. (Herrin Dep. at 184.)

 In defense of Dr. Herrin's causation methodology, Stasior highlights other parts of Dr. Herrin's report and deposition testimony. Dr. Herrin states in his report that it is not possible to quantify the probability of developing CTS posed by any single risk factor because there are multiple factors which may contribute to the onset of this disorder. (Herrin Report at 2.) In his deposition, Dr. Herrin states that the "dose-response" level of risk factors *fn4" is unknown and basically unknowable. (Herrin Dep. at 100-01, 102, 108-109.) The court notes that Dr. Herrin does not cite any studies in support of this proposition. Dr. Herrin also states that when an ergonomist analyzes a workplace, the appropriate course of action is not to quantify risk factors, but rather to minimize those risk factors that exist. (Herrin Dep. at 125.)

 In addition to testifying as to causation, Dr. Herrin also testifies as to foreseeability. In his report, Dr. Herrin states that "the risks of cumulative trauma disorders in office work have been recognized for over 10 years and Amtrak health and safety professionals should have known of appropriate abatement strategies. (Herrin Report at 5.) However, in his deposition testimony, Dr. Herrin acknowledges that he is unable to cite any studies from 1991 or before showing that the degree of posture, repetition and force at Amtrak's Chicago RSO was ergonomically unsafe. (Herrin Dep. at 184.)

 B. Michael D. Shinnick, Ph.D.

 Dr. Shinnick has extensive experience in ergonomics. While Dr. Shinnick is primarily an ergonomist, he also has had training in industrial engineering. (Shinnick Dep. at 39.) In his current position as Director of the Dynamics Research Group, Dr. Shinnick analyzes the ergonomics of office and production environments. (CV of Michael Shinnick, attached to Pl's. Response to Defendant's Motion for Summary Judgment as Exhibit 3, 1-2 ("CV of Michael Shinnick").) In one of his graduate training programs, Dr. Shinnick studied ergonomics techniques and industrial engineering in Australia, and upon his return, fulfilled the program's objective by disseminating the knowledge he had gained through publications and university teaching. (Shinnick Dep. at 39-40.) Dr. Shinnick has also performed ergonomic analyses for Ford Motor Company and the United Automobile Workers. His specific functions included identifying ergonomic hazards and designing potential remedies. (Shinnick Dep. at 30-32.) Dr. Shinnick has been retained as an expert, and has testified, in other cases specifically involving CTS. (Shinnick Dep. at 55-56.) In these cases, Dr. Shinnick examined the work tasks for risk factors, and he examined companies' ergonomics programs and its procedures regarding training, reporting and medical surveillance. (Shinnick Dep. at 61.) He then rendered opinions related to exposure to risk factors and whether the employer had a proper program to remedy, warn or educate regarding that exposure. (Shinnick Dep. at 61-62.) In addition, Dr. Shinnick says that he has "widely read" the literature on CTDs. (Shinnick Dep. at 76.) Dr. Shinnick acknowledges that he has never conducted any peer-reviewed studies investigating the hypothesized relationship between occupational hand use and CTDs. (Shinnick Dep. at 42-44.)

 Amtrak accurately summarizes the opinions Dr. Shinnick provides in his report with respect to causation and foreseeability:

 
1. Plaintiff's workplace contributed to her development of carpal tunnel syndrome.
 
2. Repetition, awkward posture and lack of training were the risk factors for CTS which were present in Plaintiff's workplace; and
 
3. Defendant should have known that Plaintiff's job as a reservation sales agent exposed her to the risk of developing CTS, because literature in this area has existed for decades.

 (Def.'s Shinnick Brief at 1.)

 In preparing his testimony and report for this litigation, Dr. Shinnick reviewed Stasior's medical records; reviewed various depositions, including Stasior's; reviewed Amtrak's policies and procedures regarding ergonomics training, medical surveillance, and reporting; interviewed Stasior; performed functional capacity and grip strength tests on Stasior; and directly observed Stasior's workplace in 1997. (Shinnick Dep. at 10-11, 25, 28; Shinnick Report at 2-3.) Dr. Shinnick determined that Amtrak's Chicago RSO had two risk factors which contributed to Stasior's CTS and chronic tendonitis. These risk factors were improper posture and repetition, both amplified by a lack of education and training on the correct use of Amtrak's equipment. (Shinnick Dep. at 22.)

 In support of his opinion that improper posture contributed to Stasior's CTS, Dr. Shinnick stated that Stasior had not been trained about wrist and seating position, seat elevation, and keeping her feet on a flat service. (Shinnick Dep. at 110.) According to Shinnick, it is generally accepted, and certainly accepted by the National Institute for Occupational Safety and Health ("NIOSH"), that awkward posture is a risk factor and that non-neutral wrist postures are a hazard. (Shinnick Dep. at 78-79.)

 In support of his opinion that repetition contributed to Stasior's CTS, Dr. Shinnick stated that the preponderance of the ergonomics literature cites repetitive hand exertions as an occupational risk factor for developing CTDs. (Shinnick Dep. at 75-76.) However, Dr. Shinnick could not provide actual citations for specific treatises or articles in this regard. (Shinnick Dep. at 76.) Dr. Shinnick also stated the fact that Stasior used the keyboard with low frequency does not mean that repetition was not a risk factor. According to Dr. Shinnick, using the keyboard ...


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