Opinion
3:02CV7530
June 18, 2003
ORDER
This is an FELA case in which the plaintiff, who worked for about thirty years for Consolidated Rail Corporation as a car man, alleges that the conditions under which he worked caused various musculoskeletal injuries, including carpal tunnel syndrome, shoulder pain and impairment, and herniated discs. Pending is the plaintiff's motion to exclude testimony by Dr. Howard Sandler, whom the defendant proposes to call to testify on issues relating to occupational medicine, including, inter alia, "causation analysis."
For the reasons that follow, the plaintiff's motion shall be granted.
Dr. Sandler is a 1977 medical school graduate. His academic training included little, if any, exposure to occupational medicine, ergonomics, or epidemiology. He had no specialized training in orthopedics, neurology, or surgery.
Dr. Sandler did not serve an internship or residency, and he has not treated patients. He is not Board certified in any specialty, although the field of occupational medicine is board certifiable, as are the related medical fields of orthopedics, neurology, surgery, and internal medicine. Though his curriculum vitae credits him with authorship of an extensive list of articles on a variety of subjects, including a small number on ergonomics, none of those articles was peer-reviewed. Defendant does not dispute plaintiff's description of those articles as short "employer-oriented opinion pieces." (Doc. 10 at 11).
Dr. Sandler's post-medical school career has been spent exclusively in the general field of occupational safety and health. His initial work involved workplace exposure to toxic substances; thereafter, he spent time "looking at the delivery of heath care in this country and ways to perform technology transfer" Id. Exh. 6 at 10, l. 22). For several years, Dr. Sandler was a medical consultant to OSHA, where he focused primarily on the fitness of OSHA staff members for their duties. For a year or two he was employed by a private entity working "with various industry and government [groups] in the assessment of exposures and concerns, trend analysis, epidemiology, putting on programs for occupational health and safety, [and] auditing programs." Id. Exh. 2 at 93, l. 9-21. For about a year, Dr. Sandler worked in "a very groundbreaking area of occupational medicine, which was hazard communication, right to know." Id. at 105, l. 10-17
In 1983, Dr. Sandler formed a consulting firm, Sandler Occupational Medicine Associates, in which he holds about eighty percent of the stock. The focus of his practice is:
to look at various work places, to work and design programs to make sure that these people, the workers[,] stay healthy, to investigate problems frequently called in when there is [sic] spills or leaks or people say we have a lot of people complaining, so what's going on here and I'm brought in frequently. That's what we do and I also work with clinicians, doctors all over the country, in answering their questions or my client as to what's wrong with this person, where did it come from. We try to investigate and figure if there is a relationship there in the workplace.
Id. Exh 2 at 134, l. 19-21.
Dr. Sandler has spoken on about a half-dozen occasions to professional audiences on the subjects of causation analysis and determination and musculoskeletal issues and disorders. He has testified twice each before Congress and the California and Virginia legislatures on occupational health issues. He does not recall the dates or precise subject matters of that testimony. Likewise, he does not recall the subject matters of his speeches, and no notes or other written record exists of such testimony and speeches.
Dr. Sandler was a member of a workshop of about eighty scientists convened by the National Academy of Sciences to address "issues of musculoskeletal disorders, sprains, aches, carpel tunnel syndrome, arthritis, you name it, as it relates to work." He was "specifically asked to give a presentation and develop a paper on the assessment of causation, meaning what does the literature show, what does the evidence show and how does that all hang together scientifically." Id. Exh. 1 at 21, l. 12-25. His written submission, which he has not produced, dissented from the Academy's methodology and conclusions. Id. Exh. 2 at 187, l. 12-15.
There is, accordingly, little in Dr. Sandler's background which equips him to testify about musculoskeletal trauma and its effects. He has had no formal or extensive medical training since medical school. He not treated patients with musculoskeletal complaints. He has not been board certified in any of the professional specialties which come within the ambit of occupational medicine. He has not conducted research in any of those fields, and his professional writings have been neither the product of such research nor peer-reviewed.
Nonetheless, he has given his opinion on matters of occupational medicine and/or causation with regard to a broad range of bodily organs and functions, including: the lungs, male and female reproductive systems, feet, ankles, knees, hips, lumbar spine, cervical spine and neck, shoulders, elbows, hands (including carpal tunnel syndrome), nervous system, hormonal system, and leukemia. Defendant's attorney has not disputed plaintiff's contention that Dr. Sandler's testimony has invariably been on behalf of the defense, at least in cases involving claims by railway workers. The firm representing the defendant in this case has, according to plaintiff, retained Dr. Sandler "to prepare hundreds of reports in Conrail cumulative musculoskeletal disorder cases" in which he has stated "that none of these Conrail workers had a causal relationship between their work and their musculoskeletal pathology." Id. at 28.
In response to plaintiff's motion to exclude Dr. Sandler's testimony, defendant points out:
[T]he field of occupational medicine requires a physician to be knowledgeable about a wide range of diseases and their causes. According to the American College of Occupational and Environmental Medicine, "occupational and environmental medicine is perhaps the most wide ranging of all medical specialties . . . Diagnoses, internal or family medicine, psychiatry, surgery, epidemiology, toxicology, forensic medicine, administration, preventive medicine-occupation environmental medicine can encompass them all." The Journal of the American Medical Association defined occupational medicine as:
a specialty field of medicine concerned with: 1) appraisal, maintenance, restoration, and improvement of the health of the worker through application of the principles of preventive medicine, emergency medical care, rehabilitation, and environmental medicine: 2) the promotion of a productive and fulfilling interaction of the worker with his work through the application of the principles of human behavior; and 3) the active application of social, economic and administration needs and responsibilities of both the worker and the work community.
Obviously, Dr. Sandler and any occupation physician must be knowledgeable about every aspect of a worker's possible "exposure" to risk factors, whether that means, chemical, biological, physical or otherwise.
Doc. 12 at 6-7 (footnote omitted).
Though the record in this case shows that Dr. Sandler has been allowed to give opinion testimony in many other cases on a variety of occupational medicine issues, it does not show how Dr. Sandler knows what he is talking about in this case when he opines that "there is no indication that Mr. Prater's reported hand, shoulder and neck symptoms are related to his railroad employment." Id. Exh. D at 28. He is not a specialist in any of the medical sub-specialities, such as orthopedics, neurology, or hand surgery, that would enable him to tell a jury about the impact of repetitive or other trauma on the body and the physiological consequences. His experience before forming his consulting firm, while relatively broad in scope with regard to a variety of environmental factors in the workplace, does not appear to have involved extensive experience with ergonomics or musculoskeletal issues.
Otherwise, the record is largely silent about where and how Dr. Sandler may have gained the basic learning essential to testify about such issues in this case. Neither the titles nor the content of his speeches and legislative testimony has been made known to the court. While a handful of his articles, at least from a reading of their titles, may relate to ergonomics and the musculoskeletal system, there is nothing to show that those articles manifest specialized knowledge about the subjects as to which his testimony is sought in this case.
Thus, while it is clear that other courts have found Dr. Sandler to be qualified to testify on a variety of issues, including, apparently, the effect of repetitive trauma on a worker's hands, shoulder, neck, and back, the record in this case does not show why that was so. The same is true with regard to why his firm is used extensively by those who retain it to obtain the benefits of his opinions. From the instant record, it appears as likely that they do so because they anticipate that those opinions will be favorable as they do because they have a basis for concluding that they will be objective and reliable.
While Dr. Sandler, as the list of references appended to his report may show, may have read or be familiar with numerous articles, there has been no showing of how that familiarity, if it exists, makes up for the lack of formal medical training and experience, board certification, independent research, or other means of gaining or showing the requisite knowledge that would persuade this court that his testimony would meet the threshold reliability requirements of Fed.R.Evid. 702, Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579 (1993) and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999).
I conclude, therefore, that the defendant's proposed opinion testimony about the accuracy of the diagnosis by plaintiff's treating physicians or the causes they perceive for his complaints, or the relationship between the physical demands of plaintiff's work and his physical condition, should not be allowed.
I reach this conclusion on the failure of proof in this case with regard to the witness's knowledge about the subjects as to which he was to be called to testify. I reach no conclusions about the adequacy of the methods by which he came to formulate his opinion, though I note that the absence of a record of his measurements and observations is troublesome. Without such record, which could, in all likelihood, be obtained and kept with a minimum of difficulty, evaluation and comment by other experts on what was done and other means of effective challenge, including cross-examination, are impaired. If one does not see the tracks, it is difficult to follow the path from observation to conclusion, and to show that it was not as straight as it might have been.
It is, therefore,
ORDERED THAT plaintiff's motion to preclude testimony of defendant's proposed expert Dr. Howard Sandler be, and the same hereby is granted.
So ordered.