Walker v. Soo Line R.R. Co.

• Decision Date: 31 March 2000
• Docket Number: No. 98-4237,98-4237
• Citation: 208 F.3d 581
• Parties: (7th Cir. 2000) Richard WALKER, Plaintiff-Appellant, v. SOO LINE RAILROAD COMPANY, Defendant-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 581

208 F.3d 581 (7th Cir. 2000)

Richard WALKER, Plaintiff-Appellant, v. SOO LINE RAILROAD COMPANY, Defendant-Appellee.

No. 98-4237

In the United States Court of Appeals For the Seventh Circuit

Argued September 16, 1999

Decided March 31, 2000

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 93 C 3861--Arlander Keys, Magistrate Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before RIPPLE, MANION and DIANE P. WOOD, Circuit Judges.

RIPPLE, Circuit Judge.

Richard Walker filed this action against the Soo Line Railroad Company ("Soo Line"). He seeks damages for injuries suffered by having been struck by lightning while working in a railroad tower. At trial, Mr. Walker sought to introduce expert testimony to establish that electrical injury could have been the cause of his condition. Much of that testimony was excluded by the district court on the ground that it lacked a scientific basis. The district court also refused to admit testimony from an expert on electrical safety about how lightning could have penetrated the tower in which Mr. Walker was working. The district court allowed testimony from several Soo Line expert witnesses over Mr. Walker's objection. The jury returned a verdict for Soo Line. We conclude that several portions of the expert testimony excluded by the district court should have been admitted and that their exclusion severely curtailed Mr. Walker's ability to present his case. We therefore reverse the judgment of the district court and remand the case for a new trial.

I BACKGROUND

In 1991 Richard Walker was employed by Soo Line as a tower operator. The job required him to direct railroad cars to particular tracks by operating switches in a control tower. On October 24, 1991, Mr. Walker was working the 11 p.m. to 7 a.m. shift at the Bensenville rail yard. He was stationed in Tower A, one of two 75-foot towers in the yard. There was an electrical storm in the area that night. Mr. Walker claims that, at around 3 a.m., he received injuries from a lightning bolt as he was touching switches on his control board. He relates that he experienced chest pain and that his body heated up. Mr. Walker was hospitalized for two days, but returned to work a few weeks later.

In 1995 Mr. Walker brought this action against Soo Line under the Federal Employers' Liability Act, 45 U.S.C. sec. 51 et seq. ("FELA"). Initially, he claimed that the lightning strike had affected his hearing. Later, he amended his complaint to allege that the lightning strike had caused him psychological damage and had impaired his ability to work.

Mr. Walker was evaluated by the Electrical Trauma Research Program at the University of Chicago in December 1996. At trial, the district court excluded or limited the testimony of two expert witnesses from that program. One of these experts was Dr. Neil Pliskin, a psychologist who had examined Mr. Walker to determine his functional capability. Dr. Pliskin administered a battery of tests designed to test Mr. Walker's IQ, his concentration, and other functions. The district court permitted Dr. Pliskin to testify about the results of those tests; it did not permit, however, Dr. Pliskin's testimony about his evaluation of Mr. Walker's IQ before the incident or about any decline in his IQ since the incident. The district court excluded this evidence because Dr. Pliskin had not evaluated Mr. Walker before the incident and had relied on an erroneous account of Mr. Walker's educational history.

The leader of the University of Chicago team, Dr. Mary Capelli-Schellpfeffer, was not allowed to testify at all. Although there was no dispute about Dr. Capelli-Schellpfeffer's expertise on the subject of electrical trauma, the district court found that she improperly had relied on findings of other members of her team. Specifically, the court found that she had relied on Dr. Pliskin's findings about Mr. Walker's pre- injury functioning and excluded that testimony on the ground that it was based on an unreliable foundation. The district court also excluded as unreliable Dr. Capelli-Schellpfeffer's testimony that Mr. Walker was suffering from post-traumatic stress disorder because she was not a psychiatrist or psychologist and because her testimony conflicted with Dr. Pliskin's findings.

Mr. Walker also sought to introduce the testimony of Dr. Martin Uman, an expert on electrical safety and the chairman of the Department of Electrical Engineering at the University of Florida. Dr. Uman would have testified about the different ways by which electricity from lightning could have penetrated Tower A even if the lightning had not struck the tower directly. The district court barred that testimony as too speculative. However, Dr. Uman was allowed to testify in plaintiff's rebuttal case about the grounding and safety of Tower A after one of Soo Line's witnesses, Frank Denbrock, a safety inspector for Soo Line, testified that he had inspected Tower A and had found that it was properly grounded.

Dr. Adrian Upton was allowed to testify for Soo Line that there was no evidence that Mr. Walker was injured by any electrical trauma in November 1991. The district court also admitted records from Mr. Walker's treatment at the Madden State Hospital. Mr. Walker received psychiatric treatment there in 1972, 1973 and 1978.

II DISCUSSION

We review the district court's evidentiary decisions, including decisions to admit medical expert testimony, for an abuse of discretion. See General Elec. Co. v. Joiner, 522 U.S. 136, 141-43, 118 S. Ct. 512, 517 (1997); United States v. Taylor, 154 F.3d 675, 683 (7th Cir.), cert. denied, 119 S. Ct. 629 (1998). In deciding whether to admit the proffered expert testimony, a district court must be guided by the instructions of Daubert. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). Specifically, a district court is required to determine (1) whether the expert would testify to valid scientific knowledge, and (2) whether that testimony would assist the trier of fact with a fact at issue. See id. at 592-93, 113 S.Ct.2786. We shall consider the district court's decision with respect to the testimony of each witness as well as its decision to admit the hospital records.

A. Dr. Neil Pliskin

Dr. Pliskin's qualifications as a professional psychologist are not in dispute. He was allowed to testify about Mr. Walker's post-incident IQ. To establish that IQ, Dr. Pliskin administered to Mr. Walker a battery of tests.

The district court refused, however, to allow testimony by Dr. Pliskin about Mr. Walker's functioning prior to the incident. Dr. Pliskin acknowledged in his deposition that he relied in part on Mr. Walker's educational history in determining his pre-incident IQ. Parts of Mr. Walker's history, apparently including his educational history, had been reported to Dr. Pliskin by a woman named Vanessa Harris, described by the district court as Mr. Walker's girlfriend. The parties do not appear to dispute that her statements to Dr. Pliskin were made on behalf of Mr. Walker. The district court found, however, that the educational history on which Dr. Pliskin relied was inaccurate. Dr. Pliskin, according to the court, acknowledged that, if the account of Mr. Walker's educational history related to him by Harris was inaccurate, that inaccuracy would have affected his opinion on Mr. Walker's pre-incident IQ. The court also found that Dr. Pliskin was unsure whether electrical trauma would cause the drop in IQ he claimed to have found and that there were many other factors in Mr. Walker's life that might have caused his reduction in functioning.

Under Daubert, the first inquiry that must be undertaken is whether Dr. Pliskin relied upon a proper scientific methodology to determine Mr. Walker's pre-incident IQ. The record establishes that Dr. Pliskin's evaluation relied on the medical, educational and professional histories reported by Mr. Walker and Harris, and on his administration of the National Adult Reading Test, a test specifically designed to estimate a person's IQ before that person suffered a trauma. Medical professionals reasonably may be expected to rely on self-reported patient histories. See Cooper v. Carl A. Nelson & Co., Nos. 98-4169, 98-4222, 2000 WL 257140, at *11 (7th Cir. Mar. 7, 2000). Such histories provide information upon which physicians may, and at times must, rely in their diagnostic work. Of course, it is certainly possible that self-reported histories may be inaccurate. Dr. Pliskin himself said that it was not unusual for patients to misrepresent their histories to him. In situations in which a medical expert has relied upon a patient's self- reported history and that history is found to be inaccurate, district courts usually should allow those inaccuracies in that history to be explored through cross-examination. The Supreme Court in Daubert explained that the factual underpinnings of expert testimony may be subject to counter- attack. See Daubert, 509 U.S. at 596 ("Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence."); see also Cooper, 2000 WL 257140, at *11 (quoting Daubert). In this case, Soo Line appropriately could have presented evidence that Dr. Pliskin had relied upon an inaccurate history and thereby called his conclusions into question. "[T]he accuracy and truthfulness of the underlying [educational] history is subject to meaningful exploration on cross-examination and ultimately to jury evaluation." Cooper, 2000 WL 257140, at *11. Based on such evidence, a jury reasonably might have chosen not to credit Dr. Pliskin's testimony. Evidence demonstrating that other events in Mr. Walker's life affected his functioning might have led a jury to conclude that, even if Mr. Walker's IQ had dropped after the incident, that...