Brewer v. DENVER & RIO GRANDE WESTERN RR

• Decision Date: 28 August 2001
• Docket Number: No. 990672.,990672.
• Citation: 31 P.3d 557,2001 UT 77
• Parties: Harold R. BREWER, Plaintiff and Appellee, v. DENVER & RIO GRANDE WESTERN RAILROAD, Defendant and Appellant.
• Court: Utah Supreme Court

31 P.3d 557

2001 UT 77

Harold R. BREWER, Plaintiff and Appellee, v. DENVER & RIO GRANDE WESTERN RAILROAD, Defendant and Appellant.

No. 990672.

Supreme Court of Utah.

August 28, 2001.

Randall R. Smart, Salt Lake City, and Richard E. Crow II, Gerald J. Adler, Sacramento, CA, for plaintiff.

E. Scott Savage, Casey K. McGarvey, Salt Lake City, and Jeffrey A. Jackson, Andrew Reinhart, Canonsburg, PA, for defendant.

RUSSON, Associate Chief Justice:

¶ 1 Defendant Denver & Rio Grande Western Railroad Company appeals from a trial court judgment awarding Harold R. Brewer damages for his action brought under the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-60 (1994). We affirm.

BACKGROUND

¶ 2 Harold R. Brewer ("Brewer"), plaintiff and appellee in the instant case, began working as a telegrapher for the Denver & Rio Grande Western Railroad Company ("Denver & Rio Grande") in 1965. Twenty-two years later, in 1987, Brewer changed positions within the company and became a clerk. As part of his duties as a clerk, Brewer typed each day on a computer keyboard inputting various train data and "request information." Most days, Brewer would type on the keyboard in this manner for "[t]hree to four hours." However, when the train yard at which Brewer worked became especially busy and thus deflected his efforts to other tasks, he would sometimes type for only two hours per day. Conversely, when the yard's input demands became particularly heavy, Brewer would sometimes type for "up to eight hours" per day.

¶ 3 In December 1991, Brewer began to experience pain and numbness in his hands and wrists. Nearly a year later, in August 1992, doctors diagnosed these problems as carpal tunnel syndrome.¹ As a result, Brewer underwent two surgeries on each hand to alleviate his carpal tunnel syndrome. Following the second procedure, Brewer did not return to work for Denver & Rio Grande because his "doctors advised [him] not to go back to work and do that kind of work."

¶ 4 Subsequently, on April 14, 1994, Brewer filed suit in the Third District Court for Salt Lake County, claiming unspecified damages in lost wages and benefits and $1,500,000 in "[p]ain and suffering" and "[l]oss of enjoyment of life," for Denver & Rio Grande's alleged negligence under the Federal Employers' Liability Act ("FELA"), 45 U.S.C.A. §§ 51-60 (1994). Specifically, Brewer alleged that Denver & Rio Grande's "inadequate appliances, utensils, and equipment" caused his carpal tunnel syndrome. Accordingly, Brewer further alleged that Denver & Rio Grande was liable to him for his injuries pursuant to section 1 of FELA, which provides:

Every common carrier by railroad while engaging in commerce between any of the several States . . . shall be liable in damages to any person suffering injury while he is employed by such carrier . . . for such injury or death resulting in whole or in part . . . due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.

Id. § 51.

¶ 5 Prior to trial, on July 1, 1998, Denver & Rio Grande filed a motion in limine attempting to exclude, among other things, the causation opinion of Brewer's expert witness, Dr. Robert J. Harrison. Specifically, Denver & Rio Grande contended that Dr. Harrison's testimony was "[s]cientifically [u]nreliable" and thus inadmissible under State v. Rimmasch, 775 P.2d 388 (Utah 1989), because he did not follow "an accepted scientifically valid methodology in arriving at his opinions," and because even if Dr. Harrison did employ a "scientifically valid methodology," he did not properly apply that methodology in assessing the cause of Brewer's carpal tunnel syndrome. In response, Brewer argued that Dr. Harrison's causation testimony was "scientifically reliable and relevant" because he properly applied a "qualitative observational methodology . . . generally accepted in the ergonomic community" to assess the source of Brewer's carpal tunnel syndrome.

¶ 6 On the first day of trial, January 26, 1999, the district court conducted a hearing to consider Denver & Rio Grande's motion in limine. After receiving argument from both sides on the admissibility of Dr. Harrison's causation opinion, the court denied the motion to exclude the evidence. The court ruled from the bench: "I'm going to let [Dr. Harrison] testify. The motion is denied . . . . [However,] [j]ust because I've made th[is] preliminary ruling[ ] doesn't mean the plaintiff doesn't ha[ve] to put on any foundational [evidence]."

¶ 7 Following the trial court's ruling, Brewer called Dr. Harrison to the stand, where he began explaining the procedure he had employed in assessing the cause of Brewer's carpal tunnel syndrome. Before Dr. Harrison testified to causation itself, however, Denver & Rio Grande renewed its motion to exclude his causation opinion and requested a hearing on the matter. The court therefore conducted another hearing in which it extensively questioned Dr. Harrison about the methodology he had employed to arrive at his causation conclusion—including whether he believed it necessary to know the number of keystrokes typed per day to determine causation; whether he knew how many hours per day Brewer typed while at work; whether typing position and duration must be observed directly or may be obtained "from somebody else"; and whether typing must be "continuous," or if it could instead comprise "generally consistent use" over a period of time, to result in carpal tunnel syndrome. The court also heard further argument on the admissibility of Dr. Harrison's testimony from the parties' respective attorneys, and then denied Denver & Rio Grande's motion. The court ruled:

I'm satisfied there's sufficient basis here for the doctor to offer his opinions. . . . Doctor Harrison is a qualified medical doctor. He's done studies and series, he's studied [carpal tunnel syndrome]. He has a lot of work experience, and I think he's entitled to offer the opinions. I do not think just because it's controversial that means it can never be offered. . . .

I think the jury's entitled to evaluate, based upon the foundations that are given by the medical experts in this case, assuming it has [a] legitimate basis, and I believe that it does, to evaluate the respective decisions and make their own judgment. . . . I think this testimony will be helpful to the jury, and they'll either accept it or reject it based upon whether they find it to be persuasive, and so I'm going to allow it. The objection's overruled.

Accordingly, Brewer's attorney resumed questioning Dr. Harrison, to which Denver & Rio Grande again objected, and the trial court overruled the objection.

¶ 8 Upon direct examination, Dr. Harrison testified it was his medical opinion that "Mr. Brewer's work . . . caused his carpal tunnel syndrome condition." Dr. Harrison further testified that he formed this opinion based on a number of facts. He explained that he had read Mr. Brewer's deposition in the case, which provided "a lot of detail [as to] exactly what [Brewer] did over his years working for the railroad," an explanation of "how much time [Brewer] spent working at the keyboard," and Brewer's description of "how many hours a day he worked between 1965 and 1992 working at the keyboard." Dr. Harrison also analyzed photographs of Brewer's work station at Denver & Rio Grande, along with photographs of Brewer sitting at the work station in the "position [he was in] when he [wa]s doing his typing for the railroad."² In addition, Dr. Harrison reviewed Brewer's medical records, including nerve conduction studies demonstrating his carpal tunnel syndrome, the records from Brewer's two surgeries, and blood sugar tests that had been conducted to determine if Brewer suffered from diabetes. Using this information, Dr. Harrison opined that Brewer's carpal tunnel syndrome had been caused by his work at the railroad, specifically by his repetitive keying and poor posture due to the desk and nonadjustable chair provided by Denver & Rio Grande. Dr. Harrison elaborated on his assessment:

First of all, [I assessed] the history from Mr. Brewer that he started to get problems with his hands, the pain, numbness, tingling in his hands . . . . That was verified by a test that showed without doubt that he actually had the disease.

When I looked at the history from Mr. Brewer, first in the medical records, and then when I talked to Mr. Brewer a few weeks ago, . . . [that] history . . . was consistent with, or what we find in many patients who have carpal tunnel syndrome. . . .

Second, the test showed that he had it and he had multiple nerve conduction tests.

The third was the exposure that he had. By exposure, what I mean is the risk factors for carpal tunnel syndrome. The risk factors that he has here that I can see from the pictures . . . , from talking to Mr. Brewer is [sic] the repetitive keying. [R]epetition is a factor that's well known to cause carpal tunnel syndrome.

. . . Mr. Brewer has testified . . . that he[ ] us[ed the keyboard] an average of four hours a day. . . .

. . . .

The second exposure or risk factor is posture. When I look at the pictures, I would describe Mr. Brewer as a leaner, he's kind of leaning forward, perched over the keyboard, and his hands are up . . . . So that's called extension when your hands go back. . . . It's unfortunately common when people work at this kind of furniture [because] people try to find the position that they're comfortable in. And that[ ] position is often the worst position in terms of placing stress across the wrist and causing eventual damage to the nerve to cause carpal tunnel syndrome.

. . . .

And if he's doing simultaneously the repetitive keying, and he's in the awkward posture, those two factors combined are synergistic, . . . they're creating more than double the risk factor. . . .

. . . .

The fourth factor would be that he doesn't have any other reason [for developing the syndrome]. So what we would

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