Bowers v. Norfolk Southern Corp.

Page 1343

537 F.Supp.2d 1343

Jimmie BOWERS, Plaintiff, v. NORFOLK SOUTHERN CORPORATION, et al., Defendants.

Civil Action No. 5:06-cv-98 (CAR).

United States District Court, M.D. Georgia, Macon Division.

July 26, 2007.

Christopher B. Hall, Edward Shuff Cook, Richard Wesley Kelley, Atlanta, GA, for Plaintiff.

Jay Clifford Traynham, Mark Edward Toth, Macon, GA, for Defendants.

ORDER ON MOTIONS TO EXCLUDE EXPERT TESTIMONY

C. ASHLEY ROYAL, District Judge.

Plaintiff, Jimmie Bowers, brings this action pursuant to the Federal Employers' Liability Act (FELA) seeking damages for back and neck injuries he sustained while employed by Defendants, Norfolk Southern Corporation, Norfolk Southern Railway Company, and Central Georgia Railroad Company (hereinafter referred to collectively as "Norfolk Southern" or "Defendants"). On September 24-25, 2002, while working as an engineer on a locomotive traveling overnight from Savannah, Georgia, to Macon, Georgia, Plaintiff allegedly suffered acute injuries to his back and neck. Plaintiff attributes his injuries to two sources: the excessive vibration of the locomotive in which he was traveling and the defective engineer's seat on which he sat during the five-hour journey. In his Complaint, Plaintiff alleges, inter alia, that Defendants negligently failed to properly maintain, inspect, and repair both the locomotive and the seat, and failed to provide him with a locomotive that worked properly and safely.

Following the close of discovery, the parties filed multiple motions in limine. Through these motions, the parties seek to exclude the testimony of various expert witnesses for failure' to satisfy the requirements of Rule 702 of the Federal Rules of Evidence, as well as the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Defendants filed four motions in limine, seeking to exclude the testimony of Dr. Arthur Wardell, an orthopaedist who performed an independent medical examination of Plaintiff; Dr. David Miller, an orthopaedic surgeon who operated on Plaintiffs lower back; Dr. Roy Baker, a neurosurgeon who treated Plaintiff; and Michael J. O'Brien, a safety inspector who examined the allegedly defective engineer's seat. Plaintiff, in turn, filed two motions in limine, seeking to exclude the testimony of Robert Larson, a mechanical engineer who performed a vibration study of the locomotive and seat; and John L. Trimble, Ph.D., a biomechanical engineer who Defendants hired to evaluate the biomechanical and physiological aspects of Plaintiffs claims.

In preparing to rule on the motions, the Court held a status conference with the attorneys and offered them the opportunity to have a hearing to present evidence. Neither side wanted a hearing. The Court then reviewed the depositions and affidavits of each of the experts, their curricula vitae, and their expert reports, where available in the record. The Court also reviewed Plaintiff's deposition and his medical records, the deposition of Michael Solesbee, the ISO standards used to measure locomotive vibration, and the various articles relied upon by Larson and Trimble in forming their opinions. After conducting an extensive review of the record, the Court held a second conference call with the attorneys to make sure that it had a proper understanding of the record. The parties confirmed that the Court did. Having reviewed the record, together with the relevant case law, the Court concludes that the parties' motions should be GRANTED in part and DENIED in part.

BACKGROUND INFORMATION

In September 2002, Plaintiff worked for Defendants as a railroad engineer. At the time, Plaintiff was 57 years old, stood five feet nine inches tall, and weighed 215 pounds. (Pl. Dep. 4:7-11, 25:14-15.) He lived in Savannah, Georgia, with his wife and spent his free time reading, exercising, walking, and performing home repair and improvement work. (Pl. Dep. 10:2-24.)

Plaintiff began his career with Norfolk Southern in 1970, working first as a switchman, then rising through the ranks to become a locomotive engineer in 1976. (P1. Dep. 41:3-10.) From 1976 through 1985, Plaintiff traveled various routes throughout Middle Georgia, working as a railroad engineer. In 1985, he received a regular assignment to travel the route from Savannah to Macon. (Pl. Dep. 41:15-24.) He continued to travel the Savannahto-Macon route until September 25, 2002, when he allegedly suffered the injuries claimed in this lawsuit.

A. The September 25, 2002 Incident

On the evening of September 24, 2002, Plaintiff reported to the Mason Rail Yard, located just outside of Savannah, Georgia, for his routine run from Savannah to Macon. He arrived at work at approximately 6:00 or 7:00 p.m., performed a pre-departure inspection of the locomotive and equipment, and prepared for the trip from Savannah to Macon. (P1. Dep. 43:23-25, 45:20-46:16.) Approximately two to four hours into his trip, Plaintiff experienced acute pain in his lower back, tingling in his lower legs and feet, and numbness in his right arm and hand. (Pl. Dep. 50-51, 62 & Exh. 2.) As he continued on his trip, Plaintiff s pain increased until it began "shooting up and down his back into his neck." (Pl. Dep. 62:23-63:2 & Exh. 2.) By the time he arrived in Macon on the morning of September 25, Plaintiff's pain was severe enough to compel him to go to the local emergency room.

Plaintiff has been unable to identify specifically the cause of his injuries. (Pl. Dep. 60.) However, he claims that, to his best recollection of that day, the locomotive, vibrated excessively, which caused his cab seat to move laterally, "shak[ing][him] back and forth." (Pl. Dep. 59-50.) Plaintiff additionally alleges that the cab seat lacked adequate padding. (Pl. Dep. 55, 60, 72:11-17.) Plaintiff believes that these two defects together caused his low back and neck injuries.

When Plaintiff arrived in Macon, a Norfolk Southern employee met him at the rail yard and transported him to the Coliseum Medical Center for treatment. (Pl. Dep. 65:15-67:2.) There, the emergency room physician took x-rays, administered a steroid injection, and gave Plaintiff some pain pills. (Pl. Dep. 79.) Plaintiff claims that, after reviewing his x-rays, the emergency room physician diagnosed a bulging disk in his lower back and degenerative disc disease in his neck. (Pl. Dep. 94:8-9.) Later that day, Plaintiff returned to Savannah, where, over the several months that followed, he received extensive medical treatment.

B. Plaintiff's Medical History

Plaintiffs neck problems began long before the September 25, 2002 incident, and Plaintiff believes that, to some degree, the 2002 incident aggravated his pre-existing neck pain. (Pl. Dep. 106:6-20.) Plaintiff first sought treatment for his neck problems on October 29, 1998, with Dr. Roy Baker, a board-certified neurosurgeon in Savannah. (Baker Dep. 3:17-4:12.) During his October 29 visit, Plaintiff complained of pain in his right shoulder, arm, and neck. (Baker Dep. 4:15-21.) He told Dr. Baker that he had never before experienced any problems with his cervical spine. (Baker Dep. 4:21.) At no time during his treatment with Dr. Baker did Plaintiff mention any lower back or leg problems.

Dr. Baker initially diagnosed cervical spondylosis, a condition characterized by degenerative and arthritic problems in the neck. (Baker Dep. 4-5.) Dr. Baker also noted moderate nerve compression on the right side of Plaintiffs neck. (Baker Dep. 4-5.) Dr. Baker recommended a cervical myleogram, a diagnostic procedure, to investigate Plaintiffs complaints. The myleogram, performed on November 19, 1998, showed that Plaintiff had multiple level osteophytes and bone spurs on both the right and left sides of his cervical spine. After considering the results of the myleogram, Dr. Baker hoped that Plaintiff could avoid surgery, but thought that Plaintiff might eventually require a multilevel cervical discectomy and fusion. (Baker Dep. 6.)

Dr. Baker saw Plaintiff again on November 24, 1998. On this visit, the two discussed treatment options. Plaintiff chose the physical therapy option, and Dr. Baker referred him to a physical therapist. (Baker Dep. 6-7.) The physical therapist released Plaintiff on January 12, 1999. (Baker Dep. 21.)

On September 25, 2002, the day of the alleged injury, and approximately four years after he had first treated with Dr. Baker, Plaintiff went to the Coliseum Medical Center Emergency Department in Macon. The medical report of that visit shows under "HPI" (history of present illness) that Plaintiff complained of sharp and dull pains in his cervical and thoracic spine of moderate severity. Under the "Timing" section of the HPI, Plaintiff gave a medical history of the complaints beginning, "PTA" (prior to admission) — "30 days ago." (Wardell Dep. Exh. 6.) In other words, Plaintiff gave a medical history of his lumbar and cervical problems beginning thirty days before sitting in the allegedly faulty locomotive seat.

Upon returning to Savannah, Plaintiff saw Dr. Henry Deriso, an orthopaedist. (Pl. Dep. 94:24-95:6.) After examining Plaintiff, Dr. Deriso advised him that he could return to work. (Pl. Dep. 97:9-11.) Plaintiff disagreed, and chose instead to obtain a second opinion from Dr. Baker. (Pl. Dep. 97.) Plaintiff returned to Dr. Baker on October 25, 2002. During his visit, Plaintiff complained of pain in his neck, lower back, and legs. He attributed his injuries to the September 25, 2002 incident, stating that he "had been sitting in a firm chair with not much padding," and explaining that "he got so shook up sitting there he developed a lot of back pain and neck pain." (Baker Dep. 8-9.)

Dr. Baker examined Plaintiffs cervical and lumbar spine and concluded that Plaintiffs neurological exam was normal. Dr. Baker did not find any significant neurological problems other than Plaintiffs complaints. (Baker Dep. 10-11.) Because Plaintiff complained...