211 F.3d 1008 (7th Cir. 2000), 211, Cooper & Pogge v. Nelson & Co.

Docket Nº:211
Citation:211 F.3d 1008
Party Name:Cooper & Pogge v. Nelson & Co.
Case Date:March 07, 2000
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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211 F.3d 1008 (7th Cir. 2000)

United States Court of Appeals, Seventh Circuit

Nos. 98-4169, 98-4222

ROBERT E. COOPER and MARIANN POGGE, Trustee of the Bankruptcy Estate of Robert E. Cooper, Plaintiffs-Appellants, Cross-Appellees,


CARL A. NELSON & CO., a corporation, Defendant-Appellee, Cross-Appellant.

Appeal from the United States District Court for the Central District of Illinois. No. 94-1274--Joe B. McDade, Chief Judge.

United States Court of Appeals, Seventh Circuit

March 7, 2000

Argued September 16, 1999

As Amended on Denial of Rehearing and Rehearing En Banc June 1, 2000.

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Before RIPPLE, MANION and DIANE P. WOOD, Circuit Judges.

RIPPLE, Circuit Judge.

Robert E. Cooper1 brought this personal injury action against Carl A. Nelson & Co. ("Nelson"), seeking damages for an accident at a construction site. The case proceeded to trial, and a jury verdict was entered for Nelson. For the reasons set forth in the following opinion, we reverse the judgment of the district court and remand the case to the district court for proceedings consistent with this opinion.


A. Facts

Nelson was the general contractor at the construction of a new Wal-Mart in Macomb, Illinois. Mr. Cooper was an electrician working for one of Nelson's subcontractors. Workers at the site were encouraged by Nelson to park in a vacant lot at the existing Wal-Mart adjacent to the construction site.2 This arrangement required that they traverse a drainage ditch to access the construction trailers. The bottom of the ditch was spanned by planks, so that the construction workers would not have to walk through the bottom of the ditch. Rather, they had to walk down an incline and then across the planks and up an incline on the other side. The incline down to the planks became muddy whenever it rained, and it was difficult to maintain footing. Consequently, Nelson laid pallets in this area to afford workers additional traction. The exact nature of the plank bridge and the condition of the bottom of the ditch were subjects of some dispute in the district court.

On July 7, 1992, Mr. Cooper slipped and fell while traversing this drainage ditch. He claims to have been knocked unconscious in his fall, and does not recall exactly where he was when he fell. He testified that it was raining at the time of his accident and that both the ditch and the planks were wet and slippery.

B. Proceedings in the District Court

Mr. Cooper's initial amended complaint alleged that he fell on the planks over the bottom of the ditch. During discovery, he acknowledged that he was not certain about the exact place of his fall. He did not, however, further amend his complaint to reflect this uncertainty. In ruling on a motion for summary judgment filed by Nelson, the district court determined that Mr. Cooper's claim could not be sustained on the theory that he had fallen on the planks themselves and, therefore, granted summary judgment for Nelson.

The district court noted, however, that the evidence produced at discovery suggested that Mr. Cooper had fallen on the incline leading down toward the location of the planks across the bottom of the ditch. The district court therefore vacated its grant of summary judgment and allowed Mr. Cooper to amend his pleadings to allege that he had fallen on the incline. In the new amended pleading, Mr. Cooper alleged that he had fallen on the muddy incline approaching the planks in the ditch, not on the planks themselves.

Nelson later sought, through a motion in limine, to preclude at trial any mention of Mr. Cooper's having fallen on the planks. The district court granted the motion. The district court noted that the allegation in the second amended complaint was that Mr. Cooper fell on the incline approaching the planks and ruled that Mr. Cooper ought to be bound at trial by that allegation.

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Mr. Cooper sought to introduce at trial the deposition testimony of medical professionals who had examined him. Among those experts were Dr. William Richardson, a specialist in internal medicine affiliated with the St. Louis University School of Medicine; Dr. Emre Kokmen, a board certified neurologist at the Mayo Clinic in Rochester, Minnesota; and Dr. Joshua Warach, a board certified neurologist in Springfield, Illinois. After a hearing to determine the admissibility of this testimony under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the district court decided that the testimony was not admissible because the physicians had an inadequate foundation for evaluating the cause of Mr. Cooper's injury. Specifically, the district court pointed to the physicians' finding that Mr. Cooper's 1992 fall was the cause of his chronic pain syndrome and other ailments. That finding was based on Mr. Cooper's own statements to the physicians that he had fallen in 1992, that before his fall he had been healthy, and that after his fall his physical condition had deteriorated.

Mr. Cooper also argued that, in addition to the medical experts, Robert Bunch, a carpenter for Nelson, should have been allowed to testify about when a proper man bridge was built across the ditch. Terry Lox, a supervisor for Nelson, was allowed to testify that at the time of Mr. Cooper's accident there was a man bridge across the ditch, not merely some planks. Bunch would have testified that he assisted in the construction of a proper bridge after the accident. The district court excluded the testimony as evidence of a subsequent remedial measure. See Fed. R. Evid. 407. The district court also excluded a report from the Social Security Administration finding that Mr. Cooper was entitled to total disability benefits.

At the close of Mr. Cooper's case, the district court granted Nelson summary judgment on Mr. Cooper's claim that Nelson had willfully and wantonly caused his injury. The case proceeded on Mr. Cooper's negligence theory. After the presentation of Nelson's case, the district court instructed the jury that Nelson's duty was that of a landowner. Mr. Cooper objected, claiming that the contractor should not have been held to the "passive" duty of care of a landowner, but rather to a more active duty of ordinary care. The jury returned a verdict for Nelson.


Mr. Cooper raises six distinct issues on appeal. He argues that the district court incorrectly granted summary judgment on the issue of the place of the fall, that it administered faulty jury instructions, and that it should not have dismissed his willful and wanton injury claim. The other three challenges relate to the district court's evidentiary decisions: the rejection of Robert Bunch's testimony, the refusal to admit the Social Security Administration report, and the decision under Daubert to exclude his proffered medical testimony. We consider these contentions in turn.

A. Mr. Cooper's Fall

Mr. Cooper cannot remember whether he fell on the slope approaching the planks over the ditch or on the planks themselves. He originally claimed that he slipped on the planks, but the district court granted summary judgment for Nelson on the ground that the evidence did not support such an allegation but rather tended to show that he slipped on the incline approaching the location of the planks. Mr. Cooper then amended his pleading to state that he had slipped on the incline. Later, the court granted Nelson's motion in limine to prevent Mr. Cooper from offering testimony suggesting that he slipped on the planks.

Before this court, Mr. Cooper submits that the district court erred when it decided to take the issue of whether he fell on the planks away from the jury on the

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ground that there was no evidence to support a verdict for Mr. Cooper on that theory. First, contends Mr. Cooper, the district court ought not to have granted summary judgment to Nelson on the ground that the amended complaint alleged solely that Mr. Cooper had fallen on the planks, not the incline. Second, continues Mr. Cooper, this initial error was compounded when the district court, although allowing an amendment of the pleadings, refused, by granting the motion in limine, to allow the jury to consider the possibility that he fell on the planks. Mr. Cooper admits that his second amended complaint, filed with leave of court after the district court had granted summary judgment on the first amended complaint, alleged only that he had slipped on the incline, not on the planks. He asks us to take into account, however, that this complaint was filed only after the district court had ruled that the evidence would not support a jury finding that he had slipped on the planks. Therefore, he submits, its content was governed by the law of the case as established in the district court's earlier ruling.

Nelson replies that there was no evidence to establish that Mr. Cooper slipped on the planks and that the district court was therefore justified in ruling as it did. It argues that, in response to Nelson's summary judgment motion, Mr. Cooper admitted that he had not fallen on the planks but on the incline leading to the planks. Indeed, even on this appeal, argues Nelson, Mr. Cooper argues only that it is "just as likely" that he fell on the planks as on the incline.

We believe that the district court should not have precluded the jury from considering the possibility that Mr. Cooper fell on the planks. In the first amended complaint, Mr. Cooper alleged, in more detail than was required by the Rules, that he had "slipped among planks while carrying materials for use on the job site walking down the incline approaching the six foot deep ditch and then fell onto the plank...

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