Hose v. Chicago Northwestern Transp. Co.

• Decision Date: 30 January 1996
• Docket Number: 94-3376,Nos. 94-3300,s. 94-3300
• Parties: 43 Fed. R. Evid. Serv. 446 Delmas R. HOSE, Plaintiff-Appellee/Cross-Appellant, Virginia Hose, Plaintiff, v. CHICAGO NORTHWESTERN TRANSPORTATION COMPANY, A Delaware Corporation, Defendant-Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 968

70 F.3d 968

43 Fed. R. Evid. Serv. 446

Delmas R. HOSE, Plaintiff-Appellee/Cross-Appellant, Virginia

Hose, Plaintiff, v. CHICAGO NORTHWESTERN TRANSPORTATION COMPANY, A Delaware

Corporation, Defendant-Appellant/Cross-Appellee.

Nos. 94-3300, 94-3376.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 20, 1995.

Decided Nov. 22, 1995.

Rehearing and Suggestion for Rehearing En Banc Denied Jan. 30, 1996.

Bruce Edward Johnson, Des Moines, Iowa, argued (Joseph Geiken Van Winkle, on the brief), for appellant.

Elaine M. Martin, Omaha, Nebraska, argued (Karen M. Verdirame and Dennis E. Martin, on the brief), for appellee.

Before FAGG, LAY, and HEANEY, Circuit Judges.

LAY, Circuit Judge.

This appeal arises out of a $1,333,279.31 jury verdict for personal injuries in favor of Delmas R. Hose against the Chicago and North Western Transportation Company ("CNW") under the Federal Employers' Liability Act, 45 U.S.C. Secs. 51-60 ("FELA"). Hose worked as a welder at CNW's reclamation center in Council Bluffs, Iowa, from 1976 In April 1991, Hose reported that he was suffering memory loss and had fallen in the welding shop when his right leg gave out. CNW directed him to take sick leave and not to return to work until he obtained medical approval.

to 1991. The reclamation process exposed Hose to substantial amounts of fumes and dust containing manganese, a toxin. Hose's evidence shows that CNW did not provide adequate ventilation, warnings, monitoring, or safety training in relation to manganese hazards in the work place.

In April 1992, Hose filed suit in federal district court against CNW under FELA. Hose also sued Stoody Deloro Stellite, Inc., and Arcair Company, who designed, manufactured, and sold the welding equipment used by CNW, on state law counts. CNW filed cross-claims against Stoody and Arcair. Prior to trial, Hose settled with Stoody and Arcair, and CNW's cross-claims against them were dismissed. A three-week trial was held in 1994. The jury found CNW negligent under FELA and returned a verdict in Hose's favor. The jury apportioned Hose's damages finding CNW was ninety percent at fault, and Hose was ten percent contributorily at fault. At CNW's request, the jury was instructed to evaluate the contributing fault of Stoody and Arcair and found no fault on their part. The district court, the Honorable Harold D. Vietor, rejected CNW's motions for judgment as a matter of law and a new trial. This appeal followed.

On appeal, CNW challenges the admissibility of certain expert medical testimony, the sufficiency of the evidence of medical causation, the exclusion of evidence of Hose's claims against Stoody and Arcair and their subsequent settlement, and certain jury instructions. Hose cross-appeals the jury's finding of ten percent contributory negligence. We affirm.

MEDICAL TESTIMONY

In February 1992, after a series of medical examinations and varying diagnoses by different specialists, Hose was examined by Dr. Carol Angle, who was then director of clinical toxicology and professor of pediatrics at the University of Nebraska Medical Center. Dr. Angle made the diagnosis that Hose was suffering from manganese encephalopathy. In March 1992, Dr. Jan Golnick, a neurologist, concurred in Dr. Angle's diagnosis and removed Hose from seizure medication prescribed by another physician. Various other examinations and treatments followed.

Manganese encephalopathy is a dementia, or difficulty in thinking, that usually results from chronic exposure to manganese, and is usually associated with reduced ability to control one's movements. (Tran. 491) (testimony of Dr. Angle). CNW challenges the expert opinion evidence of Hose's physicians under Daubert v. Merrell Dow Pharmaceuticals, Inc., --- U.S. ----, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (interpreting Fed.R.Evid. 702). ¹ Under Daubert, the trial court plays a "gatekeeping role" to "ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." Id. at ----, ----, 113 S.Ct. at 2798, 2795. Relevance means there must be "a valid scientific connection to the pertinent inquiry" in the case. Id. at ----, 113 S.Ct. at 2796. Reliability means the evidence must be based upon scientific knowledge, i.e., "ground[ed] in the methods and procedures of science," and must represent "more than [a] subjective belief or [an] unsupported speculation." Id. at ----, 113 S.Ct. at 2795. ²

We review a trial court's decision on the admissibility of expert medical evidence for a clear abuse of discretion. Gier v. Educational Serv. Unit No. 16, 66 F.3d 940, 942 (8th Cir.1995). If the party opposing the

evidence does not properly object, however, we review for plain error. Owen v. Patton, 925 F.2d 1111, 1115 (8th Cir.1991). Finally, we will not reverse a jury verdict if an erroneous admission of expert evidence is harmless. McKnight v. Johnson Controls, Inc., 36 F.3d 1396, 1405 (8th Cir.1994).

Dr. Gupta

CNW first challenges Dr. Naresh Gupta's deposition testimony based on a positron emission tomography ("PET") scan of Hose's brain. The PET scan was ordered by Dr. Golnick to aid his ability to make a diagnosis. Dr. Gupta testified that the PET scan ruled out alternative diagnoses of Hose's injuries, such as alcoholism, a stroke, and Alzheimer's disease, but was "consistent" with manganese encephalopathy.

CNW sought to exclude use of the PET scan in a motion in limine and timely objected to Dr. Gupta's testimony. ³ CNW argued the PET scan was not scientifically reliable for use in making a diagnosis of manganese encephalopathy and was not relevant for any other purpose. The district court, however, admitted Dr. Gupta's testimony because it was relevant in terms of excluding other diagnoses of Hose's injuries and was limited to showing consistency with, not diagnostic proof of, manganese encephalopathy. Dr. Gupta further testified to the limited scientific experience and literature about using PET scans in manganese cases.

We find the district court did not abuse its discretion by allowing Dr. Gupta's testimony based on the PET scan. Dr. Gupta's testimony clearly showed the limited use of the PET scan, but that use was nonetheless relevant. In determining the cause of a person's injuries, it is relevant that other possible sources of his injuries, argued for by defense counsel, have been ruled out by his treating physicians. Indeed, ruling out alternative explanations for injuries is a valid medical method. See McCullock v. H.B. Fuller, Inc., 61 F.3d 1038, 1043-44 (2d Cir.1995). There is also no question that the PET scan is scientifically reliable for measuring brain function. The fact that Hose's treating physician ordered the PET scan prior to the initiation of litigation is another important indication that this technique is scientifically valid. Cf. Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1317 (9th Cir.) (expert testimony based on "legitimate, preexisting research unrelated to the litigation provides the most persuasive basis" for ensuring scientific validity of expert testimony), cert. denied, --- U.S. ----, 116 S.Ct. 189, 133 L.Ed.2d 126 (1995).

Dr. Andrews

CNW next challenges Dr. Richard Andrews's deposition testimony regarding the polysomnogram conducted under his supervision. A polysomnogram assesses whether a person has any sleep disorders. Like the PET scan, the polysomnogram was ordered by Hose's attending physician, Dr. Golnick. Dr. Andrews testified that Hose has a sleep disorder consistent with an exposure to a toxic substance.

CNW did not object to the admission of Dr. Andrews's deposition testimony until plaintiff's counsel prepared to read the deposition at trial. At that point, CNW objected on the grounds that the polysomnogram was scientifically unreliable in the diagnosis of manganese encephalopathy and was otherwise irrelevant. To support its argument, CNW presented the district court a statement in a deposition by Dr. Angle that "there is no clearcut distinction at this point of the type of sleep disorders from toxic and nontoxic encephalopathy." (Deposition of Dr. Angle, April 28, 1994, at 26-27). Hose's counsel argued the sleep study was relevant because Dr. Korn would testify, as he ultimately did, that sleep disorders are common in people suffering from encephalopathy. On this basis, the district court allowed the plaintiffs to introduce Dr. Andrews's deposition.

We find the district court did not abuse its discretion in rejecting CNW's last-minute objection to the scientific validity of the polsomnogram. The statement by Dr. Angle on which CNW relied did not undermine the validity of the sleep study, but rather only explained that there are both toxic and non-toxic explanations for sleep disorders such as Hose's. Moreover, Dr. Andrews's testimony clearly showed the limited value of the sleep study: the polysomnogram was not diagnostic of manganese encephalopathy; there was no "cause-and-effect" relationship between manganese and sleep disorders; and sleep disorders were commonly associated with alcohol, stroke, or aging. In these circumstances, CNW was free to argue to the jury that this testimony should carry little weight, but it was not reversible error to admit it.

Dr. Angle

CNW challenges Dr. Angle's opinion that her diagnosis at the time of trial was manganese encephalopathy caused by inhalation of manganese fumes at CNW's Reclamation Center, since, CNW argues, her opinion depended on the truthfulness of Hose and his wife in telling Dr. Angle about his physical symptoms. Relying on United States v. Whitted, 11 F.3d 782 (8th Cir.1993), CNW argues that allowing an unqualified opinion based on a patient's statements to a doctor is improper since such an opinion vouches for the truthfulness of the patient's story. ⁴

Assuming CNW made a timely objection to Dr. Angle's testimony, ⁵ we find no abuse of discretion in overruling CNW's objection. "As a general rule, the factual basis of an...