United States District Court, Southern District of New York
June 20, 2002
FRANK A. PRETTER, SR. PLAINTIFF,
METRO NORTH COMMUTER RAILROAD COMPANY, DEFENDANT.
The opinion of the court was delivered by: Jed S. Rakoff, United States District Judge
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'
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":
1. The jobs performed by these 15 plaintiffs exposed them
amounts of the documented ergonomic risk
factors for the upper extremity (force, repetition,
awkward posture, mechanical stress concentrations, and
vibration) to be consistent with the development of CTS
[i.e., Carpal Tunnel Syndrome].
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
6. MNCR was negligent for not providing a timely and
adequate Ergonomics Program for these employees to prevent
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 in
itself, substantially closer observation and quantitative measurement
would be necessary before his opinion "1" could meet the most elementary
requirements of "scientific certainty," such as precision, reliability,
and falsifiability. See Daubert, 509 U.S. at 591-95; see also Stasior v.
National Railroad Passenger Corp., 19 F. Supp.2d 835, 851-52 (N.D.Ill.
These deficiencies, moreover, were exacerbated, rather than cured, by
the only other "empirical" data on which Dr. Andres relied, to wit,
plaintiffs' own vague, conclusory, and self-serving statements. See tr.
47, 54, 138. Indeed, while the Court, in reaching its conclusions
herein, has ignored the testimony of defendant's expert and eschewed any
evaluation of Dr. Andres' own credibility,*fn2 the Court does take
cognizance of Dr. Andres' acknowledgment that reliance on such subjective
"data" is palpably problematic in reaching "scientific" conclusions.
See, e.g., tr. 101-104; see also, Proceedings of the Human Factors
Society 35th Annual Meeting 1992 at 790. One who seeks to cloth his
opinions in the garb of "scientific certainty" must adhere to the strict
standards of objectivity that that formal wear entails.
In addition to his seven "opinions," Dr. Andres also proposes to
testify to five "conclusions," as follows:
1. These 15 employees of MNCR all have a work history
consistent with exposure to ergonomic risk factors.
2. These employees have been exposed to forceful hand
intensive work in their job tasks. Many of their job
tasks involved exposure to more than one ergonomic
risk factor simultaneously — the situation with the
strongest association with CTS.
3. None of the plaintiffs ever received ergonomics
training beyond safety meetings or on the job. They
were not trained to recognize ergonomic risk factors
in their jobs or how to minimize their effect. They
were not trained to recognize early symptoms of
musculoskeletal disorders, nor were they encouraged to
report these symptoms at their onset.
4. MNCR has not performed a worksite or job analysis
of the jobs that these employees performed.
5. Communications between the Safety Department, the
Medical Department, and the Claims Department are
totally ineffective - to the point that directors of
these departments think that another department
besides their own is making the decision about whether
an injury is occupational or not.
Andres Report at 15-16. Conclusions "3", "4", and "5" are assertions of
fact as to which Dr. Andres has no personal knowledge; moreover, they in
no way relate to Dr. Andres' scientific expertise. They are therefore
inadmissible on their face. Conclusions "1" and "2" suffer from the same
vagueness and methodological deficiencies already discussed in connection
Andres' "opinions" and are similarly inadmissible for those
In short, for the foregoing reasons, Dr. Andres' proffered testimony is
stricken in its entirety and will not be permitted at trial. Upon receipt
of this Memorandum, counsel should jointly call Chambers to schedule the
trial date for this action and the other nine cases with which it has