Graham v. Ozark Mountain Sightseeing Inc.

• Decision Date: 15 January 1999
• Docket Number: PLAINTIFFS-APPELLANTS,DEFENDANTS-APPELLEES,No. 98-2740,98-2740
• Citation: 181 F.3d 924
• Parties: (8th Cir. 1999) ROSS W. GRAHAM; JULIE GRAHAM,, v. OZARK MOUNTAIN SIGHTSEEING, INC.; JOE D. AINSWORTH; RUDOLPH E. SMUTNY, Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 924

181 F.3d 924 (8th Cir. 1999)

ROSS W. GRAHAM; JULIE GRAHAM, PLAINTIFFS-APPELLANTS, v. OZARK MOUNTAIN SIGHTSEEING, INC.; JOE D. AINSWORTH; RUDOLPH E. SMUTNY, DEFENDANTS-APPELLEES.

No. 98-2740

U.S. Court of Appeals, Eighth Circuit

Submitted: January 15, 1999

Decided May 28, 1999

Appeal from the United States District Court for the Western District of Missouri.

Before Loken, Hansen, and Morris Sheppard Arnold, Circuit Judges.

Loken, Circuit Judge.

Juanita Graham was injured in an accident involving an Ozark Mountain Sightseeing bus. She later suffered a heart attack and died. Her surviving husband and daughter, Oklahoma residents Ross and Julie Graham, brought this diversity wrongful death action against Ozark Mountain and the bus drivers. The district court ¹ granted summary judgment for defendants because the Grahams lacked evidence that the bus accident directly caused Juanita's death. The Grahams appeal, arguing their medical experts' testimony created a genuine fact dispute regarding causation. We affirm.

On June 8, 1995, Juanita Graham was walking through a parking lot in Branson, Missouri, when an empty Ozark Mountain bus rolled down a hill and struck several parked cars, knocking one of the cars into her. She suffered serious injuries, including brain damage. On May 21, 1996, Graham had a heart attack and died. Graham had multiple risks for heart failure, including diabetes, hypertension, three pre-accident heart attacks, and a smoking habit. One of her treating physicians, Dr. Joseph Knapik, completed Juanita's Oklahoma death certificate, listing cardiac arrest as the cause of death, noting congestive heart failure and diabetes mellitus as contributing causes, and reciting that more than a year elapsed between the onset of the conditions causing death and Juanita's death. ²

The Grahams commenced this wrongful death action under Mo. Rev. Stat. § 537.080, contending the June 1995 accident impaired Juanita's mental capacity and ability to manage her pre-existing conditions, which in turn caused her heart attack and death. The district court granted defendants' motion for summary judgment, concluding the Grahams' evidence could not meet the Missouri causation standard. This appeal followed. We review the grant of summary judgment de novo, viewing the evidence most favorably to the non-moving party and affirming if there is no genuine fact dispute and the moving party is entitled to judgment as a matter of law. See Chism v. W.R. Grace & Co., 158 F.3d 988, 990 (8th Cir. 1998). We review the district court's interpretation of Missouri law de novo. See Bryan v. Norfolk & W. Ry., 154 F.3d 899, 901 (8th Cir. 1998), cert. dismissed, 119 S. Ct. 921 (1999).

To recover for wrongful death under Missouri law, the Grahams must prove that defendants' negligence was a direct cause of Juanita's death. See Morton v. Mutchnick, 904 S.W. 2d 14, 16 (Mo. App. 1995). This requires, at a minimum, a showing of "but-for" causation, that is, causation in fact. See Callahan v. Cardinal Glennon Hosp., 863 S.W. 2d 852, 862-63 (Mo. banc 1993). Because the Grahams rely on medical experts, the doctors must testify to a reasonable medical certainty that but for defendants' negligence Juanita's death would not have occurred. Expert testimony that defendants "probably" or "likely" caused the harm is insufficient unless there is additional evidence of causation or it is clear from the context that the doctor intended to express a definite opinion. See Kiger v. Terminal R. R. Ass'n, 311 S.W. 2d 5, 14 (Mo. 1958); Pfeffer v. Kerr, 693 S.W. 2d 296, 300-03 (Mo. App. 1985); Bertram v. Wunning, 385 S.W. 2d 803, 807 (Mo. App. 1965).

The Grahams rely on the deposition testimony of Juanita's two treating physicians to establish the causal link between the June 1995 accident and her fatal heart attack. Dr. Knapik testified that Graham's head injury caused a "failure to thrive," in that she would not thereafter assist in her therapy and developed behavioral problems which adversely affected her condition. However, when asked if he could testify to a reasonable degree of medical certainty that the "failure to thrive" caused Graham's death, he responded: "I wish I had a crystal ball and could answer that question. I will tell you my personal professional opinion. I think that if she wouldn't have sustained the injury that she sustained, she'd probably be alive today.... I don't think the failure to thrive and the heart attack are something we can correlate."

Dr. David Shepherd, another treating physician, was deposed as an expert for the Grahams. When asked if he could testify to a reasonable medical certainty that but for the accident, Juanita would have survived, Dr. Shepherd answered: "My opinion is that the accident and her affective disorder adversely affected her ability to comply with medical recommendations, with diet, with medication, with appropriate...