Tedder v. Am. Railcar Indus., Inc.

• Decision Date: 09 January 2014
• Docket Number: 13–1064.,Nos. 13–1063,s. 13–1063
• Citation: 739 F.3d 1104
• Parties: George TEDDER, Plaintiff–Appellee v. AMERICAN RAILCAR INDUSTRIES, INC., Defendant–Appellant. George Tedder, Plaintiff–Appellant v. American Railcar Industries, Inc., Defendant–Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

739 F.3d 1104

George TEDDER, Plaintiff–Appellee

v.AMERICAN RAILCAR INDUSTRIES, INC., Defendant–Appellant.

George Tedder, Plaintiff–Appellant

v.American Railcar Industries, Inc., Defendant–Appellee.

Nos. 13–1063, 13–1064.

United States Court of Appeals,

Eighth Circuit.

Submitted: Sept. 24, 2013.

Filed: Jan. 9, 2014.

K. Lee Marshall, argued, San Francisco, CA (Herbert Beigel, Tucson, AZ; Stephen Gerard Strauss, Stefani L. Rothermel and Timothy J. Hasken, St. Louis, MO, on the brief), for appellant/cross-appellee.

Paul D. McNeill, argued, Jonesboro, AR (David Landis, Paragould, AR; Ryan Michael Wilson, Jonesboro, AR, on the brief), appellee/cross-appellant.

Before WOLLMAN, BEAM, and SMITH, Circuit Judges.

WOLLMAN, Circuit Judge.

American Railcar Industries, Inc. (ARI), appeals from a district court ¹ order denyingits motion for judgment as a matter of law or, in the alternative, a new trial, and granting a partial remittitur of damages. George Tedder cross-appeals from the same order, challenging the remittitur. We affirm.

I.

Tedder worked for ARI as a welder. On April 24, 2008, Tedder was sitting on a table in the welding shop when another ARI employee crashed a golf cart into it, knocking Tedder off the table and into a metal pipe stand. Tedder immediately complained of back pain and eventually sought medical treatment for his symptoms. Since that time, Tedder has remained physically disabled and in pain.

Tedder has a history of work-related back injuries that predate the accident. In the late 1970s, Tedder injured his back in an industrial welding accident and was unable to work for three years. Tedder returned to his job only after being retrained for lighter duty work. In April 2000, Tedder again injured his back when he slipped while using a pry bar. Tedder visited the emergency room and was diagnosed with acute lower back pain. Finally, in April 2006, Tedder injured his back when he slipped on a piece of metal pipe. Tedder sought treatment from a chiropractor after the injury. According to the testimony of several lay witnesses, Tedder was not experiencing any symptoms relating to these injuries immediately prior to the golf cart accident.

Tedder sued ARI on September 2, 2009, alleging that the golf cart accident had caused his debilitating back pain. ARI admitted that its employee had been negligent but contested causation and damages, arguing that Tedder's three prior back injuries, his history of smoking and obesity, and his participation in active leisurely pursuits like bowling and hunting could also have caused his symptoms.

At trial, Tedder called seven lay witnesses to testify that they had noticed a marked deterioration in Tedder's physical condition after the golf cart accident. Tedder also called Gregory Ricca, M.D., an expert witness who opined that the golf cart accident was the medical cause of Tedder's symptoms. Dr. Ricca based his opinion on a differential diagnosis, a diagnostic method whereby a physician identifies all scientifically plausible causes of a patient's symptoms, then rules out improbable causes until the most likely cause remains. On cross-examination, ARI asked Dr. Ricca whether he knew about Tedder's prior back injuries and whether knowledge of those injuries would have been important to a differential diagnosis. Dr. Ricca admitted he had not heard about Tedder's injuries in 2000 or 2006 and that knowledge of those injuries would have been critical to such a diagnosis. On redirect examination, Dr. Ricca qualified his earlier opinion by adding:

If the 2004[sic] or 2000 back pain episodes continued up until his event, then I would not be able to say the event caused it. But if he were asymptomatic prior to the event, he had the event, he had a reasonable association between the event and the injury, the injury he describes is consistent with his symptoms, then I would say the event or injury caused the symptoms that needed treatment.

ARI objected to Dr. Ricca's testimony, arguing that Dr. Ricca could not make a differential diagnosis based solely on Tedder's subjective statements. The court overruled ARI's objection.

The jury returned a verdict for Tedder and awarded him the following damages:

• $500,000 for the nature, duration, extent, and permanency of his injury.

• $50,509.20 for past medical expenses.

• $100,000 for pain, suffering, and mental anguish experienced in the past.

• $737,500 for pain, suffering, and mental anguish reasonably anticipated to be experienced in the future.

• $121,879 for past wages/earnings lost.

• $700,000 for future wages/earnings lost.

• $75,000 for visible effects of his injuries.

After the verdict, ARI moved for judgment as a matter of law, a new trial, or remittitur. ARI argued that the court should have excluded Dr. Ricca's testimony as unreliable and that without Dr. Ricca's testimony no reasonable jury could have found causation. ARI also alleged that it was entitled to a new trial or to remittitur because certain evidentiary errors at trial had led the jury to award Tedder excessive damages. The district court denied ARI's motion for judgment as a matter of law, concluding that Dr. Ricca's testimony was admissible and sufficient to send the issue of causation to the jury. The court agreed with ARI that passion and prejudice had influenced the jury verdict but used somewhat different reasoning to arrive at its conclusion:

Sitting through the trial, one thing became very obvious: the jury disliked defense counsel. Lead counsel, who hailed from St. Louis, Missouri, was extremely abrasive to everyone in the courtroom. During the trial, a number of the jurors turned away when defense counsel addressed the witnesses and some routinely “rolled their eyes” when counsel spoke. While there is no doubt that the jury had sufficient evidence to find ARI liable, it is clear that the verdict was meant not only to compensate Tedder for his injuries, but also to send a message to defense counsel that their behavior was unacceptable.

D. Ct. Order of Dec. 5, 2012, at 7. The court then remitted the award for the nature, duration, extent, and permanency of injury from $500,000 to $250,000 and the award for future pain, suffering, and mental anguish from $737,500 to $250,000, capping both at two and one-half times the jury's award for past pain, suffering and mental anguish. Id. at 8. The court denied ARI's request to remit the awards for future wages/earnings lost and for the visible effects of Tedder's injury.

II.

ARI asserts that the district court should have excluded Dr. Ricca's differential diagnosis as scientifically unreliable under the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592–94, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). “We review for abuse of discretion rulings concerning the admissibility of testimony that is offered as expert opinion.” Ahlberg v. Chrysler Corp., 481 F.3d 630, 635 (8th Cir.2007).

Properly conducted differential diagnoses satisfy the Daubert standard. Turner v. Iowa Fire Equip. Co., 229 F.3d 1202, 1208 (8th Cir.2000). Indeed, differential diagnoses are “presumptively admissible,” and “a district court may exercise its gatekeeping function to exclude only those diagnoses that are scientifically invalid.” Glastetter v. Novartis Pharm. Corp., 252 F.3d 986, 989 (8th Cir.2001) (per curiam) (citation omitted). ARI advances three arguments that Dr. Ricca's differential diagnosis was scientifically invalid, which we address in turn.

First, ARI argues that because Dr. Ricca was unaware of Tedder's 2000 and 2006 back injuries before ARI cross-examined him about them, Dr. Ricca's differentialdiagnosis failed to eliminate these possible alternative causes of Tedder's symptoms. A failure to consider alternative potential causes of an injury or symptom can render a differential diagnosis scientifically invalid, Bland v. Verizon Wireless, (VAW) L.L.C., 538 F.3d 893, 897–98 (8th Cir.2008), but no such failure occurred here. Dr. Ricca's testimony indicates that he took Tedder's prior back injuries into consideration after learning about them at trial and ultimately reiterated his diagnosis, conditional on Tedder's being asymptomatic prior to the injury. That Dr. Ricca learned about Tedder's injury history at trial rather than from Tedder himself does not render Dr. Ricca's diagnosis unreliable. SeeFed.R.Evid. 703 (permitting an expert to rely on data that he “has been made aware of” at trial). There is nothing to indicate that Dr. Ricca lacked sufficient time between cross-examination and redirect examination to competently assimilate Tedder's complete injury history into his diagnosis. Indeed, ARI acknowledges that Dr. Ricca modified his diagnosis to account for this new information. ARI's objection to his diagnosis thus amounts to an assertion that Dr. Ricca did not accord Tedder's injury history as much weight as ARI would have liked. This disagreement is no basis for excluding Dr. Ricca's opinion.

Next, ARI argues that Dr. Ricca's diagnosis was unreliable because he relied solely on Tedder's description of his symptoms and the temporal connection between these symptoms and the accident. See In re Baycol Prods. Litig., 596 F.3d 884, 891 (8th Cir.2010). The record shows, however, that Dr. Ricca also relied on leg-raise tests, a CT scan, and the reports of other physicians in making his diagnosis. Patient-reported symptoms may support part of a diagnosis as long as that diagnosis also incorporates other sources of information. See Kudabeck v. Kroger Co., 338 F.3d 856, 862 (8th Cir.2003) (affirming the admission of expert testimony where the expert relied on the patient's self-reported medical history, chiropractic tests, and physical observations of the patient).

Finally, ARI argues that because Dr. Ricca was unaware of Tedder's 2000 and 2006 back injuries when he made his initial diagnosis, he simply did not have enough data to provide a reliable causation opinion. SeeFed.R.Evid. 702. As...