Kudabeck v. Kroger Co.

• Decision Date: 04 August 2003
• Docket Number: No. 02-2627.,02-2627.
• Citation: 338 F.3d 856
• Parties: Donna KUDABECK, Plaintiff-Appellee, Steven Kudabeck, Plaintiff, v. THE KROGER CO., Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

338 F.3d 856

Donna KUDABECK, Plaintiff-Appellee Steven Kudabeck, Plaintiff, v. THE KROGER CO., Defendant-Appellant.

No. 02-2627.

United States Court of Appeals, Eighth Circuit.

Submitted: January 16, 2003.

Filed: August 4, 2003.

Michael J. Emerson, argued, Little Rock, AR, for appellant.

Paul E. Harrison, argued, Little Rock, AR (Charles D. Harrison, on the brief), for appellees.

Before HANSEN,¹ Chief Judge, BRIGHT, and SMITH, Circuit Judges.

BRIGHT, Circuit Judge.

Donna Kudabeck slipped and fell at a Kroger grocery store in Hot Springs, Arkansas. Kudabeck sued Kroger, arguing that as a result of the accident she suffers from advanced degenerative disc disease and osteoarthritis in her back. Kroger agrees that Kudabeck has these conditions. However, Kroger argues that the fall did not trigger Kudabeck's condition. Prior to trial, Kroger filed a motion in limine, seeking to exclude the testimony of Kudabeck's chiropractor, Dr. Brian Reilly. The district court² denied the motion. The case proceeded to trial, where a jury found in favor of Kudabeck in the amount of $260,961.67. Kroger appeals, arguing that the district court erred in admitting the expert testimony of Dr. Reilly and in instructing the jury on the aggravation of preexisting conditions. We affirm.

I. BACKGROUND

We take the version of the evidence in the light most favorable to the jury's verdict. Salitros v. Chrysler Corp., 306 F.3d 562, 566 (8th Cir.2002). On April 13, 1995 around 11:00 p.m., Donna Kudabeck, age forty-four, and her daughter were shopping at a Kroger store in Hot Springs, Arkansas. As Kudabeck and her daughter walked down one of the aisles, Kudabeck's legs slipped out from under her and she fell to the floor, landing on the base of her spine. After the fall, Kudabeck and her daughter noticed that the floor had been recently mopped. They did not see "wet floor" signs in the area.

Kudabeck did not seek emergency medical treatment. However, a week later she still experienced pain and discomfort. She visited with a chiropractor, Dr. Brian Reilly. At the initial examination, Dr. Reilly took x-rays of Kudabeck, and found problems in Kudabeck's lumbar and cervical vertebrae areas. Dr. Reilly did not see any signs of arthritis. Based on his observation that Kudabeck did not have a fever or redness in her back, Dr. Reilly ruled out infection as a source of Kudabeck's discomfort. Dr. Reilly performed orthopedic tests to rule out other sources of pain such as the arms, legs, pelvis, and hips. Finally, Dr. Reilly used Kudabeck's medical history generally to rule out genetic sources of her pain. Dr. Reilly attributed Kudabeck's pain to the fall.

After several months of treatment, Dr. Reilly did not note much improvement in Kudabeck's condition. He referred Kudabeck to Dr. Paul Tucker, a neurologist. In February 1996, Dr. Tucker examined Kudabeck and ordered a magnetic resonance imaging test (MRI) and a series of x-rays. Dr. Tucker's examination revealed that Kudabeck had "surprising weakness" in all of her major muscle groups. In reviewing her MRI, Dr. Tucker noted possible disc herniations in the cervical spine area and problems in the lumbar spine. Kudabeck's x-rays, taken a few weeks after the MRI, indicated that she may have had a minimal compression fracture.

Dr. Tucker referred Kudabeck back to Dr. Reilly for further treatment. Over the next several months Kudabeck saw both Drs. Reilly and Tucker. Kudabeck received a variety of treatments and medications, none of which relieved her pain. Dr. Reilly continued to examine Kudabeck until May 1996.³ Dr. Tucker continued to treat Kudabeck until at least November 1998.⁴

Kudabeck's condition continued to deteriorate. In July 1996, Dr. Tucker's notes indicated that Kudabeck was "now severely handicapped and cannot do much of anything." (Trl.Ex. 11.) As stated previously, Kudabeck sued Kroger, arguing that the fall resulted in a permanent injury.⁵

After suing Kroger, Kudabeck saw Dr. Steve Cathey, a neurosurgeon, regarding her condition. At that time, Kudabeck complained of severe pain in her neck, middle back, and lower back. Dr. Cathey noted that Kudabeck's pain had been present for a number of years and that she had received a variety of medications, physical therapy, and chiropractic treatment, but none afforded much relief. In his videotaped deposition played at trial, Dr. Cathey opined that Kudabeck suffered from advanced degenerative disc disease and that he believed that she had arthritis in the spine. Dr. Cathey explained that in his opinion Kudabeck's fall aggravated preexisting conditions in her neck, middle back and lower back, and "set into motion [Kudabeck's] symptomatology." (J.A. at 55.)

Prior to trial, Kroger filed a motion in limine, seeking to exclude the testimony of Dr. Reilly. The district court did not hold a Daubert⁶ hearing to consider argument on the issue. Instead, in a written order based on the record presented to it, the court held Dr. Reilly's testimony on causation was admissible as long as Kudabeck established that his opinion was the product of reliable principles and methods properly applied to Kudabeck's case.

At trial, Kudabeck presented the videotaped deposition of Dr. Cathey, and provided the jury with Kudabeck's medical records from Dr. Tucker. Kudabeck called Dr. Reilly as an expert witness. Kroger once again objected to Dr. Reilly's testimony, and the district court allowed Dr. Reilly to testify with limitations. Kudabeck's main theory of the case was that the fall triggered Kudabeck's pain, suffering and disability.

Kroger did not call any medical experts to dispute Kudabeck's theory of the case. However, Kroger's position was that it did not act negligently. Kroger also argued it was entitled to a jury instruction relating to the aggravation of preexisting conditions. The court provided Arkansas Model Instruction 2203,⁷ but declined to provide the optional language: "However, you may not award her damages for any pain, mental anguish or disability which she would have suffered even though the accident had not occurred." The court declined to provide the instruction based on Kroger's failure to present evidence to support the instruction.

After hearing one day of testimony, the jury found that Kroger acted negligently, which proximately caused damage to Kudabeck.⁸ The jury awarded Kudabeck $260,961.67 in damages. The district court reduced the award by the amount Kroger had already paid in Kudabeck's medical expenses, resulting in a final judgment of $255,382,67. Kroger timely appeals.

II. DISCUSSION

We review for the abuse of discretion a district court's decision to admit or exclude scientific evidence. General Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997); In re Air Crash at Little Rock Arkansas, on June 1, 1999, 291 F.3d 503, 509 (8th Cir.2002). A trial court has broad discretion in assessing the relevance and reliability of expert testimony. Id. at 514.

A. Expert Testimony

On appeal, Kroger argues that the district court abused its discretion in permitting Dr. Reilly to testify because his testimony about the causation of Kudabeck's injuries was unreliable.

Federal Rule of Evidence 702 governs the admissibility of expert opinion testimony. The rule consists of three distinct but related requirements: (1) the evidence must be based on scientific, technical or other specialized knowledge that is useful to the finder of fact in deciding the ultimate issue of fact; (2) the witness must have sufficient expertise to assist the trier of fact; and (3) the evidence must be reliable or trustworthy. Lauzon v. Senco Prod., Inc., 270 F.3d 681, 686 (8th Cir. 2001). The basis for the third requirement lies in the recent amendment to Rule 702, which added the following language: "(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case." Fed.R.Evid. 702. In Daubert, the Supreme Court charged trial judges with the responsibility of acting as gatekeepers to "ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." Daubert, 509 U.S. at 589, 113 S.Ct. 2786. First, the trial court must make a "preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue." Id. at 592-93, 113 S.Ct. 2786. The Court cautioned that the trial court must focus "on [the] principles and methodology, not on the conclusions that they generate." Id. at 595, 113 S.Ct. 2786. Second, the court must ensure that the proposed expert testimony is relevant and will serve to aid the trier of fact. Id. at 592, 113 S.Ct. 2786. Expert testimony assists the trier of fact when it provides information beyond the common knowledge of the trier of fact. Id. at 591, 113 S.Ct. 2786. The Court, in Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), clarified that the district court's gatekeeper function applies to all expert testimony, not just testimony based in science. Id. at 147, 119 S.Ct. 1167.

Kroger does not contest that Dr. Reilly possesses the qualifications to testify as an expert under Rule 702. The district court acknowledged that Dr. Reilly qualifies as an expert in chiropractic treatment.⁹ Kroger also does not contest that Dr. Reilly's testimony would assist the jury. Thus, the issue of contention between the parties centers on whether Dr. Reilly's methodology is reliable.

Kroger argues Dr. Reilly's testimony is inadmissible because he failed to perform a differential diagnosis to exclude other contributing factors to Kudabeck's degenerative disc disease, instead he relied on Kudabeck's word in determining causation. Kroger also argues that Dr. Reilly's testimony is...