Free Reply to Response to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01295-LTB-CBS BETTY GALLEGOS, BERTHA PACHECO, LAURA REYES, MANUELA ARRAS, DAVID ZUBIA, ANTONIO MEZA, JESUS ARENIVAR, ALBA BARRIOS, GLORIA CAMPOS, SAN JUANITA CELEDON, REYNEL CARMONA, SYLVIA CRUZ, JESUS ESTRADA, MARIA ISABEL FLORES, JORGE MARTINEZ, MARIA MCREYNOLDS, IGNACIO RANGEL, JUANA ROSALES, MARIA TOVAR, ANTELMO ZUNUN, MARIA ALVA, PETRONA COREAS, MARIA ESTEVEZ, ALFREDO PINEDA, CARMEN LUNA, PATTY LEHMKUHL & LUIS OCHOA, Plaintiffs, v. SWIFT & COMPANY, Defendant. ______________________________________________________________________________ DEFENDANT'S RENEWED MOTION IN LIMINE TO EXCLUDE EXPERT TESTIMONY OF JOHN HUGHES, M.D. ______________________________________________________________________________ Defendant Swift & Company ("Swift" or "Defendant") respectfully submits this Renewed Motion In Limine To Exclude Expert Testimony of John Hughes, M.D.: INTRODUCTION On March 29, 2006, Defendant filed a Motion in Limine to Exclude Certain Expert Testimony of John Hughes, M.D. (Docket #97). On April 24, 2006, Plaintiffs filed a Response

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(Docket #183) stating they had no objection to Defendant's original Motion "with respect to the issue of whether Plaintiffs are substantially limited in the major life activity of working." Apparently, Plaintiffs misunderstood the intended scope of Defendant's original Motion. For that reason, Defendant now files this Renewed Motion to clarify its request that the reports and testimony of Dr. Hughes be excluded for all purposes. By doing so, Plaintiffs will have an opportunity to respond to the entirety of the motion. FACTUAL BACKGROUND As expressed in Defendant's original Motion concerning Dr. Hughes, this is a case commenced pursuant to the Americans With Disabilities Act (ADA), 42 U.S.C. § 12101, et seq. All Plaintiffs had permanent work restrictions and were placed on medical leaves of absence following Swift's implementation of a "Restricted Duty, Return to Work Policy." All Plaintiffs claim to be disabled within the meaning of the ADA. All Plaintiffs claim to be substantially limited in the major life activities of lifting and working, many of the Plaintiffs claim to be substantially limited in the major life activity of reaching, and some Plaintiffs claim to be substantially limited in various other major life activities. Plaintiffs retained Dr. Hughes as an "expert" to review selected medical records and assess to what extent the various physical impairments and restrictions reflected therein affected each Plaintiff's capabilities as compared to other individuals of the same age and sex. (See Expert Witness Disclosure for Dr. Hughes, including his reports, attached as Ex. A.)

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ARGUMENT I. STANDARDS FOR ADMISSIBILITY OF EXPERT EVIDENCE UNDER FED. R. EVID. 702 AND DAUBERT. Before expert testimony may be admitted to assist the trier of fact, the trial court must make a threshold determination that the proffered testimony is both reliable and relevant: It is by now well established that Fed. R. Evid. 702 imposes on a district court a gatekeeper obligation to `ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.' This gatekeeper function requires the judge to assess the reasoning and methodology underlying the expert's opinion, and determine whether it is both scientifically valid and applicable to [the] particular [facts in issue]. Dodge v. Cotter Corp., 328 F.3d 1212, 1221 (10th Cir. 2003) (citations omitted); accord Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592 (1993). Federal Rule of Evidence 702 sets forth the underlying standard for this determination: [An expert witness] may testify . . . in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. FED. R. EVID. 702. The party seeking to introduce expert testimony bears the burden of establishing its admissibility. Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 970 (10th Cir. 2001). If an expert's testimony is merely conclusory, it fails to raise a genuine issue of material fact and can be rejected at the summary judgment phase. Matthiesen v. Banc One Mortg. Corp., 173 F.3d 1242, 1247 (10th Cir. 1999). A. Reliability

Discussing the reliability standard under Rule 702, Daubert articulated four factors that should be evaluated when deciding whether to admit proposed expert testimony:

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(1) whether the opinion at issue is susceptible to testing and has been subjected to such testing; (2) whether the opinion has been subjected to peer review; (3) whether there is a known or potential rate of error associated with the methodology used and whether there are standards controlling the technique's operation; and (4) whether the theory has been accepted in the scientific community. Dodge, 328 F.3d at 1222, citing Daubert, 509 U.S. at 593-94. The Daubert test applies not only to scientific evidence but also to other technical and expert testimony. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999); Atlantic Richfield Co. v. Farm Credit Bank, 226 F.3d 1138, 1163 (10th Cir. 2000). When determining reliability, each step of the expert's analysis must be examined because "any step that renders the analysis unreliable . . . renders the expert's testimony inadmissible. This is true whether the step completely changes a reliable methodology or merely misapplies that methodology." Dodge, 328 F.3d at 1222 (citations omitted); Mitchell v. Gencorp Inc., 165 F.3d 778, 782 (10th Cir. 1999). B. Relevance and "Fit"

To be relevant, expert testimony must assist the trier of fact in understanding the evidence or determining a fact. United States v. Hall, 165 F.3d 1095, 1101-02 (7th Cir. 1999). As expressed by the Supreme Court in Daubert, expert testimony must be sufficiently tied to the facts of the case in order for the testimony to be admissible. Daubert, 509 U.S. at 591; see also Summers v. Missouri Pac. R.R. Sys., 132 F.3d 599, 603 (10th Cir. 1997) ("Reliability is verified by assessing `whether the reasoning or methodology underlying the testimony is scientifically valid.' Relevance is determined by ascertaining `whether [that] reasoning or methodology properly can be applied to the facts in issue.'" (citations omitted)). This relevance requirement has been described as the "fit" test, although "fit" requires a higher threshold for admissibility than mere relevance. In re Breast Implant Litig., 11 F. Supp. 4

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2d 1217, 1223 (D. Colo. 1998) ("The standard for fit is higher than bare relevance . . . . Therefore, federal judges must exclude proffered scientific evidence under Rule 702 unless they are convinced that it speaks clearly and directly to an issue in dispute in the case, and that it will not mislead the jury" (citations omitted)). The fit test is a critical component of the court's analysis. See Concord Boat Corp. v. Brunswick Corp., 207 F.3d 1039, 1055 (8th Cir. 2000) ("In recent years the Supreme Court has put renewed emphasis on the importance of the `fit' of an expert's opinion to the data or facts in the case.") (citing General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)). Courts recognize that while a given model or test may be relevant and reliable in certain contexts or applications, the same model or test may not be relevant in other contexts or applications. See Concord Boat, 207 F.3d at 1056 ("Even a theory that might meet certain Daubert factors, such as peer review and publication, testing, known or potential error rate, and general acceptance, should not be admitted if it does not apply to the specific facts of the case."); Mitchell, 165 F.3d at 781 ("`Fit' is not always obvious, and scientific validity for one purpose is not necessarily scientific validity for other, unrelated purposes."). Thus, testimony that does not fit the facts at issue amounts to "mere speculation" and should be excluded. See Concord Boat, 207 F.3d at 1057; In re Aluminum Phosphide Antitrust Litig., 893 F. Supp. 1497, 1502 (D. Kan. 1995) (excluding economic testimony of the plaintiff's expert because the expert failed properly to apply the methodology and consider signs of error in his analysis). II. DR. HUGHES' OPINIONS ARE NEITHER RELIABLE NOR RELEVANT AND MUST BE EXCLUDED FROM EVIDENCE. A. Dr. Hughes' Opinions Do Not Meet the Daubert Standards of Reliability.

Several factors render Dr. Hughes' reports unreliable, the most significant being the fact that he ignored a huge amount of highly relevant evidence concerning the Plaintiffs' physical 5

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conditions and capabilities. Not only did Dr. Hughes fail to personally examine any of the Plaintiffs, he never even spoke to them. This fact alone demonstrates that his opinions are not based on a reliable foundation. See Little v. Ford Motor Co., No. 97-1292-CV-W-4, 1999 U.S. Dist. LEXIS 13552, at *8 n3 (D. Mo. 1999) (copy attached as Ex. B) (doctor's expert testimony not reliable where he conducted telephone interview with plaintiff but never performed a physical exam or any standardized testing (citing Kumho Tire, 526 U.S. at 137, General Electric Co. v. Joiner, 522 U.S. 136 (1997), and Daubert, 509 U.S. at 579); c.f. Viterbo v. Dow Chemical Co., 826 F.2d 420, 424 (5th Cir. 1987) (failure to take into account a patient's medical history "seriously weakens" the reliability of the patient's oral history as a foundation for the doctor's expert opinion). Further, Dr. Hughes relied solely on selected medical records from other physicians, many of which date back years prior to the preparation of his reports.1 Compounding the problem, Dr. Hughes failed to take into account, or even to review, any of the Plaintiffs' deposition testimony or individual discovery responses concerning their past and present physical impairments, restrictions and capabilities. Had he done so, Dr. Hughes would have realized that many of the Plaintiffs revealed changes in the nature and/or severity of their claimed impairments and physical capabilities occurring in the years since the medical reports on which he relied were created.
In forming his opinions, Dr. Hughes reviewed the following: (1) all medical reports pertaining to maximum medical improvement for each Plaintiff; and (2) Plaintiffs' permanent restrictions. Although it is not clear from his disclosure or reports, he may also have relied on one or more of the following publications: (a) "Elements of Ergonomics Programs," U.S. Department of Health and Human Services, March 1997; (b) Chapter 3, "Occupational Medicine Profession," (publication and date unknown); and (c) "The Navy SEAL Physical Fitness Guide," Department of Military and Emergency Medicine, August 1997. See Ex. A. From the limited information provided by Plaintiffs, it is unclear how any of these publications would support, or even relate to, Dr. Hughes' opinions. None of them appear to contain any information regarding the comparative abilities of persons to perform tasks based on age, sex or other characteristics.
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Based on the limited and dated written records provided to him, Dr. Hughes opines that each Plaintiff ranks in some percentile compared to others of the same sex and age, i.e., Plaintiff Arenivar is "in the bottom 25th percentile compared to other men his age with respect to physical capacities and grip force"; Plaintiff Flores is "in the bottom 33rd percentile compared to other women her age, with respect to lifting, pushing, pulling and carrying." See Ex. A. Presumably, these opinions are meant to establish that Plaintiffs are "significantly restricted as to the condition, manner or duration under which [they] can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity." 29 C.F.R. § 1630.20(j)(1). The problem with Dr. Hughes' opinions, however, is that he makes no effort whatsoever to explain his logic, reasoning or methodology for coming up with these percentiles. Indeed, he does not even explain what the percentiles mean. He offers no supporting scientific study or publication, no statistical analysis, no citations to supporting measurements, ratings or other comparative data regarding average physical capabilities, and no information regarding capabilities of others in the comparison group. Thus, it appears that Dr. Hughes' ultimate conclusions are tenuously connected to the limited data he was provided merely by his own standing as an "expert." This is just the sort of unreliable evidence which the Supreme Court has indicated should be excluded: Nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered. General Electric Co. v. Joiner, 552 U.S. 136, 146 (1997).

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Dr. Hughes' testimony will not assist the trier of fact because it clearly is not based on "sufficient facts or data," and is not the "product of reliable principles and methods" as required by Fed. R. Evid. 702. The limited facts and data provided to Dr. Hughes, coupled with the complete lack of explanation regarding how he arrived at his percentile calculations, and what those percentile calculations actually mean, renders his conclusions regarding the Plaintiffs patently unreliable. B. Dr. Hughes' Opinions Are Not Relevant On The Issue of Whether Plaintiffs Are Substantially Limited in Any Major Life Activity.

The problems discussed above with respect to the reliability of Dr. Hughes' opinions apply equally to consideration of their relevance. The fact that Dr. Hughes' conclusions are based on incomplete facts and data renders them irrelevant on the issue of whether Plaintiffs are substantially limited in any major life activity. This is particularly true given that the determination of whether a particular impairment substantially limits a major life activity must be made on "an individualized case-by-case basis," Rakity v. Dillon Co., 302 F.3d 1152, 1158 (10th Cir. 2002), and must take into consideration "any mitigating or corrective measures utilized by the individual, such as medications." Doebele v. Sprint/United Mgmt. Co., 342 F.3d 1117, 1130 (10th Cir. 2003); Pack v. Kmart Corp., 166 F.3d 1300, 1305-06 (10th Cir. 1999). Here, Dr. Hughes never examined Plaintiffs, never spoke to Plaintiffs, and never reviewed Plaintiffs' deposition testimony or discovery responses. Rather, he simply parrots selected and dated medical reports written by other physicians and then magically translates, without any explanation or support, a permanent work restriction into a percentile of comparative limitation. Absent any underlying explanation of his logic, reasoning or methodology, Dr. Hughes' opinions cannot satisfy the relevancy standard of Rule 702 and Daubert. See Summers 8

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v. Missouri Pac. R.R. Sys., 132 F.3d 599, 603 (10th Cir. 1997) ("Relevance is determined by ascertaining `whether [that] reasoning or methodology properly can be applied to the facts in issue.'"). Indeed, it is impossible to determine whether Dr. Hughes' reasoning or methodology properly can be applied to the facts of this case when Plaintiffs have failed to disclose what that reasoning or methodology is. Dr. Hughes' opinions amount to nothing more than mere speculation and will not assist the trier of fact in understanding the evidence or determining a fact. As once expressed by the Seventh Circuit, "[a]n expert who supplies nothing but a bottom line supplies nothing of value to the judicial process." Mid-State Fertilizer v. Exchange Nat. Bank, 877 F.2d 1333, 1339 (7th Cir. 1989). CONCLUSION As set forth above, the reports and testimony of Dr. Hughes are neither reliable nor relevant on the issue of whether Plaintiffs are substantially limited in any major life activity, and must be excluded as not meeting the basic tests of admissibility for expert testimony.

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Respectfully submitted this 5th day of May, 2006.

s/ Heather Fox Vickles W. V. Bernie Siebert Heather Fox Vickles SHERMAN & HOWARD L.L.C. 633 Seventeenth Street, Suite 3000 Denver, CO 80202 Tel: (303) 297-2900 Fax: (303) 298-0940 [email protected] [email protected] Stuart B. Johnston, Jr. VINSON & ELKINS, L.L.P. 3700 Trammell Crow Center 2001 Ross Avenue Dallas, TX 75201-2975 Tel: (214) 220-7842 Fax: (214) 999-7842 [email protected] Attorneys for Defendant Swift & Company

CERTIFICATE OF SERVICE I hereby certify that on the 5th day of May, 2006, a true and correct copy of the foregoing DEFENDANT'S RENEWED MOTION IN LIMINE TO EXCLUDE EXPERT TESTIMONY OF JOHN HUGHES, M.D. was electronically filed with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail address: Britton Morrell at [email protected]

s/Fran Aragon Eaves

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