The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
This case is before the court for ruling on various pending motions filed by Plaintiff, Gary McCann, and Defendant, Illinois Central Railroad Company. This court has carefully considered the arguments of the parties and the documents filed. Following this careful and thorough consideration, this court rules as follows: (1) Defendant's Motion to Bar Plaintiff's Treating Physicians from Giving Expert Causation Opinions and to Bar the Expert Opinions of Tyler Kress (#26) is GRANTED; (2) Defendant's Motion for Summary Judgment (#28) is GRANTED; (3) Defendant's Motion for Leave to Supplement Motion to Bar (#42) is GRANTED; and (4) Plaintiff's Motion for Leave to File Supplement to Plaintiff's Response (#43) is DENIED. Based upon these rulings, Defendant's Motion in Limine (#48) is MOOT.
Plaintiff was hired by Defendant in October 1967. Plaintiff left in December 1967 for military service and returned in 1970. Plaintiff worked in the maintenance of way department and then worked as a switchman and brakeman. In 1988, Plaintiff became an engineer. Plaintiff testified that he almost always worked "locals" as an engineer. Plaintiff last worked for Defendant on November 27, 2005. Plaintiff testified that he stopped working because of his shoulder pain. Plaintiff testified that his shoulder injury was an old injury which was not work related. When Plaintiff talked to the trainmaster, Kelly Clough, he told Clough he could not work anymore because of his left shoulder. He told Clough that it was not work related. Plaintiff never submitted a claim stating that his injuries were work related. Plaintiff signed a form dated November 28, 2005, stating his condition was not work related. At his deposition, Plaintiff testified that he is only claiming that injuries to his cervical spine (neck) and his carpal tunnel syndrome were caused by his work for Defendant. Plaintiff testified that he believed the railroad was a reasonably safe place to work but could have had better seats, better track and better engines.
Plaintiff testified that the first time he remembered having any kind of pain or problems with his neck was in July 2002 from riding his motorcycle. Plaintiff testified that he could not recall any other activity or event that caused his neck pain and that he did not have any specific accident or injury to his neck at work. Plaintiff testified that riding his motorcycle aggravated his shoulder and neck pain. Plaintiff also testified that he had a motorcycle accident in August 2002. In the accident, he broke and dislocated his right ankle and broke his left wrist. Plaintiff testified that his wrist injury required two different surgeries to his left wrist. Plaintiff testified that he had experienced numbness and tingling in his fingers from riding a motorcycle. Plaintiff said his hands did not tingle any other time. Plaintiff testified that he put 25,000 miles on a Honda VTX motorcycle between 2002 and 2006 and rode his motorcycle to California and back in 2003. He testified that, before that, he owned a Honda 750 which he rode for five or six thousand miles. Plaintiff testified that he last rode his motorcycle in 2006.
Plaintiff saw Dr. George Schoedinger for the first time on February 16, 2006. Plaintiff testified that Dr. Schoedinger told him his neck pain was not related to the problem with his shoulder and was a repetitive-type injury from working as an engineer. Plaintiff testified that he last saw Dr. Schoedinger on April 3, 2006. The only treatment Dr. Schoedinger recommended for Plaintiff was that he quit smoking and lose weight. Plaintiff testified that Dr. Dove tested him and told him he has carpal tunnel. Plaintiff testified that it is not causing him much trouble and he has not received any treatment for carpal tunnel. Plaintiff testified that Dr. Schoedinger did not tell him that his carpal tunnel was work related. In fact, no doctor has tied Plaintiff's carpal tunnel injuries to his work at the railroad.
Dr. Schoedinger testified at his deposition that, when he saw Plaintiff on February 16, 2006, Plaintiff was complaining of neck pain and pain in his left arm and left shoulder. Dr. Schoedinger testified that, based upon his examination of Plaintiff, there was no evidence that he had any kind of accident or trauma to his neck. Dr. Schoedinger testified that Plaintiff did not state that he had ever had any kind of accident or injury at work involving his neck. Dr. Schoedinger testified that he reviewed an MRI of Plaintiff taken on December 8, 2005, which showed that Plaintiff had a disc rupture at C5-6. Dr. Schoedinger testified that he did not recommend surgery or prescribe any medication for Plaintiff. Dr. Schoedinger testified that he told Plaintiff that he needed to stop smoking and lose 150 to 170 pounds. Dr. Schoedinger testified that he had a telephone conversation with Plaintiff on February 24, 2006, and saw him again on April 3, 2006. Dr. Schoedinger testified that, at the time of that visit, Plaintiff had not stopped smoking and had not lost any weight.
Dr. Schoedinger testified that his opinion that Plaintiff's railroad work played a role in the development of the herniated disc in Plaintiff's neck was based upon "some work in the orthopedic literature." Dr. Schoedinger testified that "any activity that imposes repetitive stress that affects the spine in multiple axis will cause degenerative changes to occur at an accelerated rate." Dr. Schoedinger acknowledged, however, that he has not observed the work of an engineer working for Defendant and could not say what component of Plaintiff's degeneration was related to work. Dr. Schoedinger was asked whether Plaintiff told him the type of work he did as an engineer and whether Plaintiff did over-the-road runs, yard runs or combination, and Dr. Schoedinger replied that he thought Plaintiff reported that he did "combination, primarily long." Dr. Schoedinger also acknowledged that he did not know what kind of locomotives Plaintiff operated or what kind of track he worked on. Dr. Schoedinger testified that he did not have any knowledge about Plaintiff's motorcycle riding or the forces involved on the vehicles Plaintiff operated, including his motorcycles.
Tyler Kress provided an expert report regarding Plaintiff's injuries. Kress's report stated that he is a Board Certified Industrial Ergonomist and has a B.S., M.S., and Ph.D. with major concentrations in Biomedical Engineering and Industrial Engineering. In his report, Kress stated that Plaintiff "suffers from overuse injuries to his neck and shoulders." Kress further stated that Plaintiff "has experienced years of wear-and-tear on his spine and there is clear evidence of joint degeneration and pains/problems after a number of years of railroad work that progressed over the years resulting in anatomical damage from exposure to ergonomic and biomechanical risk factors." Kress stated that Plaintiff "has been exposed to risk factors involving combinations of vibration, force, and postures." Kress stated that he has "observed/inspected much of this type of work on the railroad on several occasions and there are risk factors present that are associated with back/neck, and upper extremity musculoskeletal problems."
At his deposition, Kress testified that he spoke to Plaintiff over the telephone and reviewed Plaintiff's deposition transcript and medical records. Kress testified that he did not do a site inspection and had not measured vibrations of any type of locomotive that was traveling over track that Plaintiff worked on. Kress testified that he could not say that he had inspected a specific locomotive that Plaintiff had actually been on. Kress testified that he did some measurements of locomotive vibration for an article he wrote about locomotive seats. Kress acknowledged that none of the measurements he did involved Defendant's locomotives. Kress also acknowledged that motorcycles cause vibration and that Plaintiff rode motorcycles a lot. Kress did not give an opinion that Plaintiff's carpal tunnel injuries were caused by his work for Defendant.*fn2
On July 9, 2008, Plaintiff filed his Complaint (#1) against Defendant. On October 23, 2008, Plaintiff filed a Four-Count Amended Complaint (#13). In Count I, Plaintiff sought damages pursuant to the Federal Employers' Liability Act (FELA), 45 U.S.C. § 51 et seq. He alleged that "since 1967, plaintiff was employed as a locomotive engineer for the defendant... at or near Decatur, Illinois." Plaintiff alleged that he "was furnished locomotives with inadequate and defective cab seats, rough track and oversized ballast and defective switches which subjected him to whole-body vibration and cumulative trauma causing him to be seriously and permanently injured." Plaintiff alleged that he suffered injuries to his neck, shoulders, arms and back. In Count II, Plaintiff alleged that Defendant was liable for "negligence per se" and alleged that "Defendant failed to keep and maintain those margins and/or areas alongside its tracks, where railroad employees, including Plaintiff, are required to walk/work in the course of their duties, reasonably free from hazards which Defendant knew or which should have been known to exist, thereby constituting a violation of 49 C.F.R. 213." Count III alleged that Plaintiff's injuries were caused by violations of the Locomotive Inspection Act, 49 U.S.C. § 20701, over the course of Plaintiff's employment since 1967. In Count IV, Plaintiff alleged that he had been diagnosed with carpal tunnel syndrome which was caused by Defendant's negligence so that Defendant was liable under FELA.
On October 8, 2008, a Discovery Order (#11) was entered. The Discovery Order provided that the deadline for Plaintiff to disclose experts and provide expert reports was May 15, 2009. On June 18, 2009, Defendant filed a Motion for Partial Summary Judgment (#21). Defendant stated that, based upon Plaintiff's own sworn testimony, there was no support for any claim of injury to his shoulders, arms or back. On July 2, 2009, Plaintiff filed a Response (#22) and conceded Defendant's Motion for Partial Summary Judgment. Plaintiff stated that his claim under FELA only involved injuries to his cervical spine, bilateral wrists and bilateral hands. On July 6, 2009, this court entered an Order (#23) which granted Defendant's Motion (#21) and stated that Plaintiff's allegations of injuries to his shoulders, back and arms were stricken from the pleadings.
On November 13, 2009, Defendant filed a Motion to Bar Plaintiff's Treating Physicians from Giving Expert Causation Opinions and to Bar the Expert Opinions of Tyler Kress (#26) and a Memorandum in Support (#30) with attached exhibits. Defendant also filed a Motion for Summary Judgment (#28) and a Memorandum of Law in Support (#31), with attached documentation. Defendant's Motions are fully briefed and ready for ruling.
In its Motion to Bar (#26) and Memorandum in Support (#30), Defendant argued that the causation opinions of Dr. Schoedinger and Tyler Kress should be barred because they do not meet the requirements of Rule 702 of the Federal Rules of Evidence or the standard set out in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993). Defendant also noted that Plaintiff had disclosed five other treating physicians as "non-retained experts" who may give causation opinions in this case, but Plaintiff testified at his deposition that only Dr. Schoedinger has told him that his alleged injuries had anything to do with work. Defendant further noted that ...