233 F.3d 734 (3rd Cir. 2000), 98-7472, Elcock v Kmart Corp.

Docket Nº:98-7472
Citation:233 F.3d 734
Case Date:October 10, 2000
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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233 F.3d 734 (3rd Cir. 2000)




No. 98-7472

United States Court of Appeals, Third Circuit

October 10, 2000

Argued December 7, 1999

Amended November 20, 2000.

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ANDREW C. SIMPSON, ESQUIRE (ARGUED), Bryant, Barnes & Simpson, P.C., Christiansted, St. Croix USVI, Counsel for Appellant.

LEE J. ROHN, ESQUIRE, MAURICE CUSICK, ESQUIRE, K. GLENDA CAMERON, ESQUIRE (ARGUED), Law Office of Lee J. Rohn, Christiansted, St. Croix USVI, Counsel for Appellee.

Before: BECKER, Chief Judge, SCIRICA and GARTH, Circuit Judges.


BECKER, Chief Judge.

This is an appeal by defendant Kmart from a judgment entered on a $ 650,000 jury verdict in favor of plaintiff Carmelita Elcock ("Elcock") for personal injuries and economic loss that she suffered as the result of a slip and fall at a Kmart store in Frederiksted, U.S. Virgin Islands. Kmart concedes its liability and acknowledges that Elcock's fall caused her some quantum of harm. However, Kmart challenges several evidentiary rulings that relate to the proof of Elcock's damages, and contends that the $ 650,000 award, which consisted of $ 300,000 for pain and suffering and $ 350,000 for loss of future earnings and earning capacity, was excessive.

The most important questions on appeal relate to the testimony of Dr. Chester Copemann, who was proffered by Elcock, inter alia, as an expert in vocational rehabilitation, and whose vocational rehabilitation presentation substantially informed the large award for loss of future earnings and earning capacity. We conclude that there should have been a Daubert hearing prior to the receipt of Copemann's testimony, and that because there was no such hearing, his testimony cannot stand. In the course of reaching this conclusion, we decide that the District Court did not abuse its discretion either in qualifying Copemann as an expert or in limiting the scope of cross-examination concerning Copemann's prior acts of criminal misconduct. With respect to the testimony of Dr. Bernard Pettingill, an economist put on by Elcock to assess her lost future earnings, we conclude that his opinion should have been excluded because his economic model relied on assumptions wholly without foundation in the record. In the absence of the testimony of these two critical witnesses, and given the inability of Elcock's other witnesses to act as surrogates therefor, the economic loss portion of the jury verdict, which rests on this inadmissible evidence, must be set aside, and a new trial granted.

Kmart also submits that both the economic and non-economic portions of the jury award were excessive and thus should be remitted. We do not reach Kmart's remittitur arguments. Because we find that the jury's tainted economic damage award was not clearly distinct and separate from the non-economic portion of its damage verdict, a new trial must be had on all aspects of the damage award. We do, however, for the guidance of the District Court on remand, reject Kmart's contention that Elcock failed to present sufficient evidence to show that her damages, particularly her permanent injuries, were caused by her slip and fall, as we are satisfied that there is sufficient evidence in the record to support such a finding. We thus affirm in part, vacate in part, and remand for a new trial on the issue of damages.

I. Facts and Procedural History

On August 12, 1995, Elcock and her husband went to the Frederiksted Kmart to purchase mints. While shopping, Elcock

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slipped and fell on a waxy substance that had built up on the floor. Elcock reported her fall to customer service, and a Kmart employee placed her in a wheelchair. Elcock told Kmart representatives that she had injured her back and right leg and was in excruciating pain. Kmart offered her the opportunity to visit a physician of her choice at its expense, but informed her that it would pay for only one visit.

Elcock declined the offer and visited her own doctor, Dr. Arakere B. Prasad. Prasad diagnosed her as suffering from a lumbar sprain. Because Elcock complained of low back pain and cramps in her right leg, Prasad prescribed painkillers for her. Elcock, however, never used the prescription. Prasad stated that Elcock's back and leg injuries would interfere with her flexibility and cause her pain, and that her injury was "an ongoing thing. It may be forever."

Elcock sought a second opinion from an orthopedist, Dr. Claudius Henry. During her initial visit, four days after the slip and fall, Henry also diagnosed Elcock with a low back sprain. He found limitation in Elcock's range of motion, as well as tenderness and irritation in her right leg and back "in the right LV-3 which is lumbar third to LV-1 which is the paraspinal along the spine on the right side." He considered both symptoms to be indicative of nerve root irritation arising out of an injury to muscles, ligaments, and the outer portion of the disc area in Elcock's back. Henry prescribed physical therapy, x-rays, and an anti-inflammatory drug, and recommended that Elcock limit her physical activity. The x-rays revealed that she had "minimal spurring [i.e., the accretion of calcium deposits in] the anterior portion of the vertebral bodies of the lower back." In Henry's opinion, this preexisting condition made her more susceptible to suffering a low-back sprain when she slipped and fell.

During a second visit, Henry diagnosed Elcock with resolving post-traumatic radiculopathy. Radiculopathy is often caused by a herniated intervertebral disc. Henry noted that Elcock suffered pain and nerve irritation, and complained of a limited range of motion in her back and right leg. He described these injuries as "chronic," meaning that they could "exist off and on for an indefinite period," possibly for the rest of Elcock's life. The two visits with Henry took place over a span of seven months. During this time and in the months thereafter, Elcock also saw a Dr. Ali once a month; Ali had been treating her for an unrelated diabetes condition. As evidenced by Ali's notes, Elcock never made any mention of her back and leg pain to him.

Elcock claimed that the injuries she received as a result of the fall profoundly impacted her life. At the time of the accident, Elcock was fifty-one years old and self-employed as a salesperson for Mary Kay Cosmetics. Elcock contended that she suffered extreme and uninterrupted physical pain, as well as depression that often caused her to cry until her eyes became swollen. She reasoned that this depression arose in large part from the fact that her debilitating injuries affected other aspects of her life. Elcock testified that she had lost most of her Mary Kay business, and that, as a result, her income fell from the $ 5,744 she earned in 1995 to $ 1,070 in 1996. Mary Kay sells its products through a force of salespeople organized in a pyramid structure. The salespeople earn commissions and prizes on their sales and the sales of those they recruit into their personal pyramids. Elcock was thus not only responsible for selling Mary Kay's products, but for recruiting and maintaining a subordinate sales force. She stated that her injuries interfered with her ability to perform all of these functions.

Seventeen months after the slip and fall, Elcock visited Dr. Sylvia Payne, a San Juan-based specialist in physical medicine and rehabilitation, so that Payne might give an opinion as to Elcock's medical condition

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in relation to the fall for purposes of this litigation. Payne found that Elcock suffered from lumbar myositis (inflammation of the lower back muscles, characterized by pain, tenderness, and sometimes spasms in the affected area) and from two "trigger points" in the gluteus maximus muscle. Trigger points, according to Payne, are "very tiny points in the muscle believed to be part of a muscle spindle that is firing constantly and causing pain at the sight [sic] and causing pain in another area not anatomically related." Payne testified that the trigger points were responsible for the pain Elcock felt radiating down her right leg to her knee. Payne also concluded that Elcock's "pain was severe and it interfered with several of her activities," that Elcock would be in pain for the rest of her life because of her fall, and that the injuries resulting from the fall were permanently disabling.

Elcock was also referred to Copemann, a psychologist and purported expert in vocational rehabilitation. A vocational rehabilitationist assesses the extent of an individual's disability, evaluates how the disability affects the individual's employment opportunities, and assists the individual's re-entry into the labor market. Copemann examined Elcock for the purposes of this litigation, but also treated her for her chronic pain. As part of his examination, he diagnosed Elcock's psychological condition and evaluated her lost earning capacity in light of her physical and psychological disabilities. Copemann concluded that Elcock suffered from depression, pain disorder, and adjustment disorder with anxiety, and opined that these symptoms were caused by her slip and fall and the physical injuries that arose therefrom. Copemann also concluded that Elcock's psychological condition was improving and was not permanent. Based on his assessment of Elcock's psychological condition, the extent of her physical injuries, relevant employment factors, and the results of diagnostic tests he had performed, Copemann opined that Elcock was between 50 and 60 percent vocationally disabled and that this disability was permanent.

Except for Ali, all of the doctors mentioned above...

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