Neiberger v. Fed ex Ground Package System, Inc.

• Decision Date: 27 May 2009
• Docket Number: No. 07-1504.,07-1504.
• Citation: 566 F.3d 1184
• Parties: Penni L. NEIBERGER; John E. Neiberger, Plaintiffs-Appellants, v. FED EX GROUND PACKAGE SYSTEM, INC.; Kevin T. Killman; Dennis Conley, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

566 F.3d 1184

Penni L. NEIBERGER; John E. Neiberger, Plaintiffs-Appellants, v. FED EX GROUND PACKAGE SYSTEM, INC.; Kevin T. Killman; Dennis Conley, Defendants-Appellees.

No. 07-1504.

United States Court of Appeals, Tenth Circuit.

May 27, 2009.

Michael W. Baty, The Baty Law Firm, P.C., Durango CO, and Randolph H. Phillips, Alpharetta, GA, for Plaintiffs-Appellants.

Michael Brice Sullivan (A. Peter Gregory, with him on the brief), of Harris, Karstaedt, Jamison & Powers, P.C., Englewood, CO, for Defendants-Appellees.

Before HARTZ, SEYMOUR, and TYMKOVICH, Circuit Judges.

HARTZ, Circuit Judge.

Penni L. Neiberger was a passenger in a pickup truck driven by her husband, John E. Neiberger, when she was injured in a motor-vehicle collision in Colorado on February 19, 2003. The other vehicle was a delivery van driven by defendant Kevin Killman and owned by defendant Dennis Conley. The van was carrying cargo for defendant Fedex Ground Package System, Inc. Mrs. Neiberger appeals an adverse judgment in the United States District Court for the District of Colorado.¹ Under Colorado's no-fault statute she could obtain relief through a tort suit only if her injuries were sufficiently severe. The jury found that her injuries did not qualify.

On appeal Mrs. Neiberger challenges several rulings by the district court that may have led to the jury's finding. Two challenges relate to a defense expert witness who opined that the failure of Mrs. Neiberger's spine to heal after her preaccident back surgery was not the result of the accident but was probably caused by her smoking. Mrs. Neiberger contends that the expert should not have been permitted to testify because (1) the expert opinion did not satisfy the requirements of Federal Rule of Evidence 702 and (2) Defendants did not adequately disclose during discovery the basis for the expert's opinion. Mrs. Neiberger also challenges the district court's refusal to allow two of her expert witnesses on damages to testify regarding her medical expenses. Finally, she challenges the court's refusal to allow her to call an expert witness regarding the cause of the accident. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

I. BACKGROUND

The details of the accident are not relevant to our disposition of this appeal. We therefore summarize at this point only the Colorado statute that barred Mrs. Neiberger's tort claim and the evidence relating to the requirements of the statute. We will provide further detail in our later discussions of the specific issues raised on appeal.

Under the Colorado Auto Accident Reparations Act, Colorado Revised Statute § 10-4-701 et seq. (repealed July 1, 2003), which governed Mrs. Neiberger's claim, a victim of a motor-vehicle accident could recover damages in a tort lawsuit only if she proved that the accident had caused at least one of several specified losses. See Colo.Rev.Stat. § 10-4-714 (repealed July 1, 2003); Donelson v. Fritz, 70 P.3d 539, 545 (Colo.Ct.App.2002). Accordingly, the district court gave the jury the following "threshold" instruction (which is not challenged on appeal):

Before you consider the question of either negligence or damage, you must first find at least one of the following was caused by the accident:

The Plaintiff, Penni Neiberger, sustained one or more of the following:

a. permanent disability;

b. permanent disfigurement;

c. the reasonable value of reasonably needed medical or rehabilitation services, alone or in combination, have [sic] or will exceed $2,500.00; or

d. loss of earnings or earning capacity [beyond certain specified amounts].

If you find that none of the above has been proved by a preponderance of the evidence, then you must return your verdict in favor of the Defendants, and your foreperson shall sign Verdict Form 1.

Aplees.App. at 1.

To prove that she had suffered an injury that would enable her to sue in tort, Mrs. Neiberger relied on a claim that the accident had injured her spine. She had suffered from scoliosis, or curvature of the spine, since age 13; and Dr. John Odom, an orthopedic surgeon, had operated on her to correct the defect in March 2002, about a year before the accident. But when Dr. Odom performed additional surgeries after the accident (in August 2003 and February 2005), he noted that her spine had not fused in some locations— that is, she had nonunions of her spine. He testified at trial that the nonunions were caused by the accident.

In addition, to prove that her reasonably necessary medical expenses arising from the accident exceeded $2,500, Mrs. Neiberger testified that she had incurred $184,000 in medical bills "[s]ince the accident." Aplts. App. Vol. 2 at 266. But when she tried to introduce testimony by her economics expert, Thomas Roney, regarding her medical expenses, the district court sustained a defense objection on the ground that Mrs. Neiberger had not introduced competent evidence to show that the care for which she was billed $184,000 was reasonably necessary to treat injuries caused by the accident. She contends that the district court similarly refused to admit medical-expense testimony by her occupational-therapy and life-care-planning expert, Doris Shriver.

To counter Dr. Odom's testimony, Defendants presented a deposition of Dr. Peter Weingarten, another orthopedic surgeon, that had been videotaped a week before trial. Dr. Weingarten testified that the nonunions of Mrs. Neiberger's spine probably resulted from her smoking cigarettes, not from the accident.

The jury returned a special verdict that Mrs. Neiberger had not proved any of the losses necessary to pursue a tort claim, and the district court entered judgment for Defendants.

II. DISCUSSION

A. Dr. Weingarten's Testimony

Mrs. Neiberger contends that the district court erred in allowing Dr. Weingarten to testify because his expert opinion did not satisfy the requirements of Federal Rule of Evidence 702 and because the pretrial report of his opinion, provided by Defendants during discovery, was inadequate disclosure under Federal Rule of Civil Procedure 26(a). We disagree.

On October 10, 2005, Dr. Weingarten examined Mrs. Neiberger. He also reviewed various imaging studies of her spine. In a report provided to Mrs. Neiberger's counsel on October 17, he observed that "immediately subsequent to the motor vehicle accident [there was no] radiographic evidence of loosening or displacement of the hardware [installed by Dr. Odom during her initial surgery]," and concluded that it was "highly unlikely that the motor vehicle accident caused a fracture [of Mrs. Neiberger's spine] without evidence of displacement of the hardware." Id. at 121. He also noted that Mrs. Neiberger had told him that she had stopped smoking six months before her first surgery but had then resumed smoking up to half a pack a day for a period of time after the accident. He stated, "Clearly the history of smoking does result [in] an increased incidence of pseudoarthrosis," or nonunion. Id.

On November 7 Mrs. Neiberger's counsel deposed Dr. Weingarten for 26 minutes. Dr. Weingarten reiterated his view that the accident had not caused any fracture or nonunion in Mrs. Neiberger's spine. He stated that nonunion is a recognized risk even in nonsmokers but that smoking greatly heightened this risk and that it was a likely cause of the nonunion. Mrs. Neiberger's counsel did not ask questions about the scientific bases for Dr. Weingarten's conclusions.

Defendants deposed Mrs. Neiberger's surgeon, Dr. Odom, two weeks later. They questioned him about five peer-reviewed studies showing that smoking inhibited spinal fusion and about the position statement of the American Academy of Orthopedic Surgeons (AAOS) adopting that view. Dr. Odom expressed his substantial agreement with this medical literature and acknowledged that he had repeatedly warned Mrs. Neiberger of the risk of nonunion posed by her smoking. These warnings began early in his care of her. His notes of their March 2002 presurgical conference state that "[h]er greatest risk, of course, is nonunion because she's been a smoker." Id. Vol. 1 at 58. He testified that he had explained this risk to Mrs. Neiberger and thought that she understood it. He also said that Mrs. Neiberger had agreed to limit this risk by not smoking for at least a year after her initial surgery and that six months after her second surgery, when Mrs. Neiberger told him that she was smoking half a pack a day, he had "told her that was not good ... [b]ecause she wouldn't grow bone as well as if she didn't smoke." Id. at 67.

On January 24, 2007, one month before trial, Mrs. Neiberger filed a motion in limine to limit Dr. Weingarten's testimony. She argued that Defendants had violated Federal Rule of Civil Procedure 26(a)(2) by failing to disclose the data or methodology underlying his conclusion that her smoking was the cause of her spine's failure to heal. She pointed out that Dr. Weingarten had "performed no smoking specific tests or procedures" on her, id. at 29, and had examined her physically for only 15 minutes. She also argued that the failure to provide such data or methodology rendered his opinion inadmissible under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Defendants' response noted the medical literature and Dr. Odom's deposition testimony supporting the view that smoking increases the risk of nonunions.

During trial the district court orally denied the motion in limine. Without specifically stating that Defendants' disclosure was inadequate under Rule 26(a), the court said:

What we should generally be concerned with is that the opponent has a reasonable opportunity to understand and effectively cross-examine or confront the expert....

[T]he report was dated October of 2005. The deposition was taken, I think, within a month thereafter.... [T]he plaintiffs were aware of the opinion and did not seek any...