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PRETTER v. METRO NORTH COMMUTER RAILROAD COMPANY

June 20, 2002

FRANK A. PRETTER, SR. PLAINTIFF,
V.
METRO NORTH COMMUTER RAILROAD COMPANY, DEFENDANT.



The opinion of the court was delivered by: Jed S. Rakoff, United States District Judge

MEMORANDUM

By order dated December 28, 2001, the Court granted the motion of defendant Metro North Commuter Railroad Company ("Metro North") to strike the proposed trial testimony of plaintiff's "ergonomics" expert, Robert Andres, and stated that an opinion would follow giving the reasons for the ruling. With apologies for the inordinate subsequent delay, the Court hereby fulfills that commitment.

Plaintiff Frank A. Pretter Sr. alleges that he and fourteen other Metro North employees developed carpal tunnel syndrome and other disabilities as a result of Metro North's negligence in requiring the employees to perform unduly repetitive tasks at a Metro North repair facility called the "Harmon Shop." In support of their respective claims,*fn1 Pretter duly filed an expert report from Dr. Andres, an ergonomist. Following challenge by the defendant, the Court, after receiving a Report and Recommendation from Magistrate Judge Eaton, conducted a two-day evidentiary hearing pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), following which the Court, as noted, granted defendant's motion to strike Dr. Andres' testimony.

As set forth in his report, Dr. Andres proposes to testify at trial that he holds the following seven "professional ergonomic opinions" to a "reasonable degree of scientific certainty":

2. MNCR [i.e., Metro North] should have known that their employees were being exposed to ergonomic risk factors for CTS by the mid 1980s, or at the very latest upon the arrival of Dr. Go in the Medical Department in 1993.
3. MNCR was negligent by not performing worksite and job evaluations for ergonomic risk factors in the Harmon Shop.
3[sic]. MNCR was negligent for not implementing engineering controls or administrative controls to minimize these employees' exposure to ergonomic risk factors for the upper extremity.
4. MNCR was negligent by not providing adequate training to these 15 plaintiffs to empower them to minimize their exposure to ergonomic risk factors, or to allow them to recognize early signs and symptoms of upper extremity musculoskeletal problems so that they could report them
5. MNCR was negligent for not implementing a medical management program to treat and control work related musculoskeletal disorders and for not encouraging the early reporting of signs and symptoms of upper extremity problems.
6. MNCR was negligent for not providing a timely and adequate Ergonomics Program for these employees to prevent occupational CTS.

Report in the Matters of Bashant et al. v Metro-North Commuter Railroad ("Andres Report"), at 16.

Precisely because they purport to be matters of scientific certainty, all but the first of these opinions are deficient on their face. Whether, for example, Metro North "should have known" by the mid-1980's that its employees were being "exposed to ergonomic risk factors" (opinion "2"), or whether Metro North was "negligent" for "not performing worksite and job evaluations for ergonomic risk factors" (the first of the two opinions numbered "3") are, by their very nature, matters not reducible to scientific certainty and any attempt to pretend otherwise is calculated to confuse and mislead the jury. This is not to say that scientific information might not be relevant to some of the issues addressed in these opinions (although not necessarily in areas of Dr. Andres' expertise); but neither Dr. Andres nor his clients so limit his opinions, but rather proffer that the opinions as a whole are held "to a reasonable degree of scientific certainty" when, in fact, they are mostly not matters of science at all.

While the same deficiency does not apply to opinion "1", that opinion suffers from other fundamental flaws that render it inadmissible under Daubert. To begin with, in its stated form the opinion is so vague as to be meaningless. What does it mean for a job to "expose" a worker to "sufficient" amounts of ergonomic risk factors to be "consistent" with the development of CTS? More fundamentally, as the evidentiary hearing before this Court confirmed, this vagueness is not the result of imprecise wording, but of imprecise methodology and inadequate investigation. For example, even though at the hearing Dr. Andres testified that the two "ergonomic risk factors" most applicable to plaintiffs' work were frequent repetitions and the exertion of high levels of force, he neither defined these factors with specificity nor offered any objectively measured evidenced of the frequency with which Metro North employees repeated their job functions or the levels of force they employed. See, e.g., transcript of Daubert hearing ("tr.") at 52, 54, 133-135. Instead, he chose to rely on impressions and extrapolations derived from his brief and casual visual inspection and videotaping of the work functions at issue. See, e.g., tr. at 47. While his conceded failure in this regard to follow the protocol of the National Institute for Occupational Health and Safety for videotaping workplace performance for purposes of analyses, see, e.g., tr. at 126-132, may not be fatal ...


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