Friday, May 22, 2009 Daubert 2009   VOLUME 1 ISSUE 8  
Second Circuit Report
Causation Testimony Offered by Welder’s Ergonomics Expert Partially Precluded in FELA Claim Against Railroads; Court Drafts Acceptable Testimony
by Brian A. Bender

Campbell v. Consolidated Rail Corp., No. 1:05-CV-1501 (GTS1GJD), 2009 WL 36890 (N.D.N.Y. Jan. 6, 2009)


The plaintiff sued the defendant railroad companies under the Federal Employer’s Liability Act.  He claimed that working as a welder from September 1976 through June 2005, he was exposed to excessive and harmful cumulative trauma to his hands as a result of the defendants’ negligence.  Ergonomics expert Dr. Robert O. Andres offered fourteen separate opinions in support of these claims.  The defendants moved in limine to preclude on the grounds that Dr. Andres’ opinions were neither reliable nor relevant.  The court granted the defendants’ motion in part, precluding three of Dr. Andres’ opinions and partially precluding the rest.

The court found that Dr. Andres’ review of pleadings, deposition testimony, medical records, railroad industry publications, the plaintiff’s job description and miscellaneous medical articles indicated that there were sufficient facts and data to support his opinion concerning general causation (that performing jobs such as welding generally exposes workers to certain ergonomic risk factors that generally have been associated with certain cumulative trauma disorders to the upper extremities).  The court also found, for the same reason, that Dr. Andres’ testimony regarding general causation was the product of reliable application of reliable principles and methods.

However, Dr. Andres’ review of the above-described materials did not provide sufficient facts or data to support his opinions concerning specific causation because he did not perform scientific tests or take objective measurements to quantify the plaintiff’s exposure to the general risk factors (i.e. the frequency of specific movements made by the plaintiff, the extent of the vibration experienced by the plaintiff during specific tasks, the duration of rest periods between tasks).  This failure also indicated that Dr. Andres’ testimony regarding specific causation was not the product of reliable application of reliable principles and methods.

Based upon the foregoing, as well as the risk of prejudicing the jury, the court precluded three of Dr. Andres’ opinions and strictly limited the rest.  The three precluded opinions were not allowed because they concerned injuries for which the plaintiff was not seeking recovery (i.e. lower extremity damage).  The remaining opinions were partially precluded to the extent they were vague; imposed supposed legal obligations on the defendants and/or involved subjects outside of Dr. Andres’ expertise, implications of a causal relationship in the absence of a scientific basis, exposure that was not objectively measured (i.e. it was based upon the visual observation of work performed by individuals other than the plaintiff at another worksite), facts of which Dr. Andres had no personal knowledge, and allegations of negligence that could not be reduced to scientific fact (i.e. that the defendants “should have” performed ergonomic screening).

In partially precluding eleven of Dr. Andres’ opinions, the court went so far as to draft alternative testimony for him which was limited to issues of general causation.  For instance, instead of testifying that the plaintiff was exposed to documented ergonomic risk factors for the upper extremity that have been associated with the development of Carpal Tunnel Syndrome and osteoarthritis, Dr. Andres could testify that based upon what he has learned and observed, it appears that the plaintiff was exposed to such ergonomic risk factors.  Such alternative testimony was drafted for each of the eleven partially precluded opinions.

Mr. Bender is a partner in the New York City office of Harris Beach, PLLC.  He defends Fortune 500 corporations in product liability suits and mass torts involving things such as industrial chemicals, medical devices, fast food, handguns, and airborne contaminants.  His practice requires the use of expert witnesses in a wide array of fields, including bioengineering, epidemiology, toxicology, surgery, industrial hygiene, computational fluid dynamics, and airflow modeling.  Mr. Bender contributes to this newsletter in his role as the Expert Witness Co-Chair for the DRI Technology Committee.  He also serves as the Chair of the DRI Products Liability E-Discovery SLG.  He can be reached at 212-313-5405 or

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