The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
This case comes before this court on Defendant Illinois Central Railroad Company's Motion to Bar Plaintiff's Physicians from Giving Expert Causation Opinions (#38), Motion to Bar the Expert Opinion of Tyler Kress (#49), and Motion for Summary Judgment for Lack of Causation Evidence (#42). For the following reasons, all three motions are GRANTED.
Plaintiff, Timothy Myers, filed his three count Complaint (#1) against Defendant on September 19, 2008, alleging that Defendant's actions/negligence caused multiple cumulative injuries (to Plaintiff's back, neck, right knee, left elbow, and hips) via: (1) Defendant's violation of the Federal Employers Liability Act (FELA) (45 U.S.C. § 51) (Count I); (2) violations of 49 C.F.R. 213 (Count II); and (3) Defendant's violation of the Locomotive Inspection Act (49 U.S.C. § 20701) (Count III).*fn1
Defendant filed its Motion to Bar Plaintiff's Physicians from Giving Expert Causation Opinions (#38) on September 14, 2009. Plaintiff filed his Response (#55) on October 6, 2009 and Defendant filed its Reply (#66) on November 30, 2009. Defendant filed its Motion to Bar the Expert Testimony of Tyler Kress (#49) on September 25, 2009. Plaintiff filed his Response (#57) on October 8, 2009, and Defendant filed its Reply (#67) on November 30, 2009. Defendant filed its Motion for Summary Judgment for Lack of Causation Evidence (#42) on September 14, 2009. Plaintiff filed his Response (#58) on October 8, 2009, and Defendant filed its Reply (#62) on October 22, 2009. The motions are now all fully briefed and ready for ruling.
I. MOTIONS TO BAR TESTIMONY
A. Motion to Bar Plaintiff's Physicians from Giving Expert Causation Opinions (#38)
Plaintiff disclosed to Defendant ten "treating doctors" as "non-retained experts" who may give causation opinions in this case. They are Drs: Newlin, Lipinski, Nord, Smith, Jamal, McMullin, Schoedinger, Haueisen, Dusek, and Matthews. The only three doctors who told him that his injuries have anything to do with his work are Drs. McMullin, Schoedinger, and Haueisen. Plaintiff conceded that Drs. Dusek, Newlin, Lipinski, Nord, Smith, Jamal, and Matthews had either not yet been deposed or they would not be rendering causation opinions in the case. Therefore, Defendant's Motion to Bar concerns only Schoedinger, McMullin, and Haueisen.
Dr. McMullin (right knee):
Defendant's point that summary judgment should be granted as to Counts II and III of the Complaint (#1) because of Plaintiff's counsel's representation that this is a "straight cumulative trauma case" and not a "whole body vibrations case." Therefore, the court finds that summary judgment is appropriate as to Counts II and III of the Complaint, leaving Count I, the FELA claim, still pending.
McMullin believes that Plaintiff has degenerative arthritis in his right knee and has diagnosed him with right knee osteoarthritis. Plaintiff advised McMullin that his right knee pain was related to chronic work activity. McMullin, however, could not quantify the forces Plaintiff's knees would have been subjected to while working for the railroad but he believed there were increased forces due to the type of railroad work Plaintiff did. McMullin has read epidemiological studies (but he could not remember their names) that look into the work activities of a railroad conductor that show there are increased forces over time from walking on ballast, climbing and getting off trains. McMullin has treated other injured employees of Defendant and confirmed that Plaintiff's right knee degenerative arthritis is attributable, at least in part, to Plaintiff's work exposures at the railroad due to an overuse syndrome.
McMullin admitted he was not an expert in ergonomics. After performing arthroscopic surgery in early 2006 no meniscal tear was found but Plaintiff had damage to the joint surfaces of the patella and medial femoral condyle. McMullin admitted that there was no way to tell how long that condition had existed. Many things could have caused the arthritic changes in Plaintiff's right knee, including trauma, genetics, aging, body weight, and shape of the knee or legs. Rheumatoid arthritis and "other activities" Plaintiff might have been involved with could have also played a role. McMullin was also unaware of two prior right knee injuries Plaintiff suffered in 1980 and 1998 (Plaintiff had surgery for the 1998 injury).
McMullin also did not know about Plaintiff's activities outside of work, such as his ATV riding, about which McMullin admitted he did not know what stresses ATV riding put on the knee but that it was "probably not the best thing." Plaintiff also did not tell McMullin that any specific activity at work aggravated any knee condition or that the condition arose as a result of any specific activity. McMullin testified that "I think he felt [the right knee pain] may have been related to the chronic work activity." However, McMullin could not assign any specific percentage as to how much of Plaintiff's alleged injury was caused by his work at the railroad as opposed to the prior, pre-existing injuries.
McMullin never observed the work of Plaintiff, or any conductor, for Defendant. He has not performed any kind of study as to what Plaintiff did at Defendant. He does not know where Plaintiff worked, what tracks he worked on, what train runs he went on, or whether his work involved yard work or work out on the road. He also could not quantify any of the forces applied to Plaintiff's knees while working as a conductor. McMullin said there were "increased forces" due to the type of work Plaintiff did. He also could offer no information about quantifiable forces with regard to ATV riding. He has not compared the forces Plaintiff would be subjected to as a conductor against those outside of work. McMullin could not name the studies he read about the work activities of a conductor, nor was he aware of any literature that says how long or over what period of time a particular job activity of a conductor must be performed to be at risk for developing knee pain. McMullin also has not personally published any studies or performed any kind of testing to prove the hypothesis that degenerative arthritis is somehow caused by work as a conductor.
Dr. Haueisen (Left Elbow):
Dr. Haueisen, a board certified orthopedic surgeon who specializes in treating the upper extremities, has authored or co-authored several publications and papers. He began treating Plaintiff in May 2006 for left elbow symptoms of tingling and numbness. Plaintiff advised Haueisen he was a switchman/trainman employee for Defendant for the past 28 years and they discussed various job duties such as connecting air hoses, setting brakes, throwing switches, and repeatedly climbing up and down ladders. Haueisen has seen multiple brakemen/switchmen employees in the past for medical treatment and has seen hundreds of railroad workers over the years and has a good understanding of what brakemen/switchmen employees do. He has seen videos of railroad employees lacing air hoses and setting handbrakes and has talked with railroad patients about the job of throwing switches. He has also treated a fair number of railroad workers who developed cubital tunnel syndrome.
On July 20, 2006, Plaintiff underwent surgery performed by Haueisen on his left elbow for cubital tunnel syndrome and medial epicondylitis. Haueisen testified that Plaintiff's employment tasks and work environment at the railroad contributed to the development of his injuries. Haueisen reached this opinion even though Plaintiff did not tell him he associated his pain with any particular work activity.
Haueisen also testified that he does not know any details about Plaintiff's performance of his work tasks. He just got a "rough idea" of what Plaintiff did at work. Like McMullin, Haueisen never went out to Plaintiff's work site to do an inspection or take measurements, nor has he gone to the job site of any patient to measure the forces of their work. Haueisen knows nothing about Plaintiff's particular work with air hoses and has never seen any data from anyone else who measured the forces involved with lacing an air hose. He has not seen any literature associating Plaintiff's injuries with lacing air hoses. Haueisen is equally unfamiliar with Plaintiff's work with handbrakes, except for a video of a possibly different railroad he saw "years ago." He also has unfamiliarity with the particular nature of Plaintiff's work with switches.
Haueisen also does not know anything about Plaintiff's physical activities outside of work, such as ATV riding or weight lifting. Haueisen has never published anything on the incidence of Plaintiff's conditions amongst railroad workers nor has he seen any studies by anyone else who looked at these conditions in association with railroad work. When asked about how much time he spent discussing Plaintiff's work history with him, Haueisen responded:
"Oh, I would say relatively little because, again, really the thrust of my business is to find out what his problems are and what we think can be done about them. So, again, I'm seeing him as a medical doctor, not as a -- you know, seeing him for a work history type of story. So, you know, my charge -- I would have spent more time on that. Since that was not my charge, it was really just to get a rough idea of what kind of things he did.
And, again, I've seen, you know, hundreds of railroad workers over the years. So I have a pretty good understanding myself of what brakemen and switchmen do. So there was no need to go into excessive detail on that."
Dr. Schoedinger (Neck and Back): Schoedinger is an orthopedic surgeon who has authored and co-authored numerous publications in his field of medical specialty, which involves the spine. He first began treating Plaintiff in September 2006 for neck pain and headaches. During this first visit Plaintiff informed Schoedinger that he was a long term employee of Defendant as a switchman. Schoedinger is aware of the employment duties of Plaintiff with Defendant. Plaintiff was revealed to have cervical and lumbar spine defects following MRIs. Schoedinger treated the lumbar spine defects with surgery in 2008.
Schoedinger has provided medical treatment to thousands of railroad employees, including brakemen and conductors. He has read and reviewed the "Lawshe Reports" which set forth employment tasks performed by railroad employees in various crafts and he has reviewed peer-reviewed literature published by Dr. Eckardt Johanning concerning engineers and conduct that are subject to vibration riding on trains. He has looked at and treated railroad conductors for a number of years and based on his vast experience, he believes that a portion of their job related activities contributes to the wear and tear changes that are seen in their necks and backs. With regard to Plaintiff, Schoedinger believes that a part of Plaintiff's cervical and lumbar spine injuries are attributable to his long standing work history with the railroad which has imposed significant stresses on his back. Also, Plaintiff sustained an aggravation of a pre-existing difficulty due in part to his railroad work.
Schoedinger is not an expert in the field of ergonomics. Schoedinger did not review Plaintiff's deposition nor had he been provided with any medical records from any other healthcare provider who has seen Plaintiff, including the 1987 back problems. Schoedinger only learned of Plaintiff's prior back injury because Plaintiff's attorney informed of him of the injury approximately three to four weeks before the deposition. After viewing a CT scan from 1987 and a MRI from 2008 of the same area, Schoedinger acknowledged that the current injury represented an aggravation of a pre-existing condition. Schoedinger could not quantify the amount of change however, or how much of the change could be attributed to ...