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

Case 1:04-cv-00560-OES-BNB

Document 80

Filed 10/26/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.: 04-cv-00560-OES-BNB GEORGE M. BULL, Plaintiff, vs. UNION PACIFIC RAILROAD COMPANY, a corporation, Defendant. PLAINTIFF'S SUPPLEMENTAL/REPLY BRIEF ON HIS MOTION TO STRIKE TESTIMONY OF DR. NEIL K. COOPERRIDER Plaintiff's counsel has received the Court's Order dated October 26, 2005, and submits this supplemental brief in an effort to guide the Court with respect to plaintiff's position on probability of injury testimony by Neil K. Cooperrider. As noted in the Order at page 3, defendant states that "Dr. Cooperrider is not seeking to testify about specific causation." Then defendant contradicts this by stating that, based on tests on the specific locomotive 6263 (the locomotive upon which plaintiff was injured on February 28, 2003); "there is a very low probability of adverse health effects," which is specific, negative causation testimony. Defendant admits that there is no scientific basis for probability of injury testimony. In response to plaintiff's motion, defendant submits the affidavit of Neil Cooperrider, who admits in paragraph 27, "It is true that specific cumulative dose-response relationships are unknown." Plaintiff's brief explicitly challenges Dr. Cooperrider to show one single scientific study which provides a scientific basis for any conclusions about injury thresholds or likelihood of injury from whole body vibration. Dr. Cooperrider did not produce or even cite any study, instead stating: ISO standards provide ranges within which exposure may be important (¶ 27); Human exposure guidelines contained in the standards are presumptively based on credible scientific evidence (¶ 14); The ISO standards "reference partial bibliographies of the scientific literature, including specific epidemiological literature, upon which the consensus standards are based." (¶ 27)

Case 1:04-cv-00560-OES-BNB

Document 80

Filed 10/26/2005

Page 2 of 3

The bibliographies attached to the ISO standards do not list any scientific literature which provides a scientific basis for any conclusions about injury thresholds or likelihood of injury. There are no epidemiological studies to support likelihood of injury predictions. Thus, Dr. Cooperrider's purported likelihood of injury/injury threshold testimony does not meet the Daubert threshold. There are no scientific epidemiological studies to support the medical causation testimony of Dr. Cooperrider (who, by the way, is an engineer, and not a doctor). Annex B2 to ISO 2631-1:1997 (7.1) unequivocally states: There are not sufficient data to show a quantitative relationship between vibration exposure and risk of health effects. Hence, it is not possible to assess whole body vibration in terms of the probability of risk at various exposure magnitudes and durations. It would violate Daubert and the federal rules of evidence to allow engineer Neil Cooperrider to testify about probability of injury and injury thresholds. Consensus standards of a group of engineers is not a scientific basis to address the medical issue of probability of injury or injury threshold. Junk science must be excluded. Dr. Cooperrider's testimony that his vibration level testing shows there is a very low probability of risk, and therefore it is not likely that plaintiff was injured by locomotive vibration should be excluded. BREMSETH LAW FIRM, P.C.

By: s/Fredric A. Bremseth____________ Fredric A. Bremseth (#11149) 810 East Lake Street Wayzata, Minnesota 55391-1839 (952) 475-2800 And SPIES, POWERS & ROBINSON, P.C. Jack D. Robinson, #22037 1660 Lincoln Street, Suite 2220 Denver, Colorado 80264 303-830-7090 Attorneys for Plaintiff

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Case 1:04-cv-00560-OES-BNB

Document 80

Filed 10/26/2005

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CERTIFICATE OF SERVICE I hereby certify that on this 26th day of October, 2005, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: [email protected] Mark C. Hansen Union Pacific Railroad Company 1331 17th Street, Suite 406 Denver, Colorado 80202 Fredric A. Bremseth Bremseth Law Firm 810 East Lake Street Wayzata, Minnesota 55391 Sabina Y. Chung Jack D. Robinson Spies, Powers & Robinson, P.C. 1660 Lincoln Street, Suite 2220 Denver, Colorado 80264

[email protected]

[email protected]

I certify that there are no non-CM/ECF participants in this case. BREMSETH LAW FIRM

By: /s Rebecca S. Martinson

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