Williams v. Wal-Mart Stores, Inc.

• Decision Date: 21 March 1991
• Docket Number: WAL-MART,No. 89-1624,89-1624
• Citation: 922 F.2d 1357
• Parties: 31 Fed. R. Evid. Serv. 1430 Edward Gene WILLIAMS, Appellant, v.STORES, INC., Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1357

922 F.2d 1357

31 Fed. R. Evid. Serv. 1430

Edward Gene WILLIAMS, Appellant, v. WAL-MART STORES, INC., Appellee.

No. 89-1624.

United States Court of Appeals,

Eighth Circuit.

Submitted Feb. 13, 1990.

Decided Dec. 31, 1990.

Rehearing and Rehearing En Banc

Denied March 21, 1991.

John L. Woodward, Steelville, Mo., for appellant.

Lisa A. Green, St. Louis, Mo., for appellee.

Before McMILLIAN and FAGG, Circuit Judges, and HEANEY, Senior Circuit Judge.

McMILLIAN, Circuit Judge.

Edward Gene Williams appeals a final judgment entered in the District Court for the Eastern District of Missouri upon a jury verdict finding Wal-Mart Stores, Inc., not liable for injuries appellant allegedly sustained in a Wal-Mart store in Sullivan, Missouri. For reversal, appellant challenges several evidentiary rulings of the district court excluding testimony by his expert medical witnesses. For the reasons discussed below, we reverse and remand for further proceedings consistent with this opinion.

I. BACKGROUND

In this negligence action against Wal-Mart, appellant alleged that his back was injured when a shelf of ice coolers in a Wal-Mart store in Sullivan, Missouri, collapsed on him. The incident occurred on January 14, 1986. ¹ Appellant's case consisted of his own testimony and the testimony of two Wal-Mart employees and several medical experts.

Appellant testified that he was standing near a display rack of ice coolers when suddenly he was knocked unconscious. Approximately fifteen seconds later he regained consciousness and noticed the ice coolers on the floor beside him. Appellant also noticed that the shelf on which the ice coolers had been displayed was leaning toward the floor. Two Wal-Mart employees testified that on the afternoon of January 14, 1986, they found appellant lying on the floor surrounded by four ice coolers. Each employee testified that the shelf holding the coolers had become dislodged but was not broken or damaged. One of the employees, Mr. Ray Harms, had installed the shelf earlier that day and placed the coolers on the shelf five or ten minutes before he Immediately following the accident, appellant was taken by ambulance to Sullivan Community Hospital. On January 16, 1986, appellant was transferred from Sullivan Community Hospital to St. Luke's Hospital and put under the care of Dr. Gary Myers, who testified at trial. Dr. Myers treated appellant for back pain on and off from January 1986 until January 1987. Twice in 1986 appellant was hospitalized due to his complaints of excruciating back pain. While in the hospital, appellant underwent surgery for hemorrhoids. Dr. Ben Myers, a diagnostic radiologist at St. Luke's Hospital, also testified at trial. Dr. Mayes performed three spinal examinations on appellant at Dr. Myers' direction. The examinations revealed two slightly bulging disks in appellant's lumbar spine.

discovered appellant lying on the floor. After stocking the shelf, Mr. Harms pressed his weight fully against it to make sure it was secure. He also remarked that appellant had been in the store for approximately two hours. Mr. Harms noticed appellant on four occasions during the two hours and testified he never saw appellant carrying any merchandise or pushing a shopping cart. When Mr. Harms asked appellant if he needed assistance, appellant did not respond.

Dr. Mayes testified that bulging disks in the lumbar spine are a frequent finding in a wide variety of patients and may or may not be related to a particular incident. Dr. Mayes was also unable to draw any connection between his findings and the alleged incident at Wal-Mart. He testified that in his opinion appellant's bulging disks were more attributable to normal wear and tear than a traumatic impact. The district court did not allow Dr. Myers, appellant's treating physician, to testify whether in his opinion appellant experienced a trauma to his lower back. Dr. Myers did, however, testify that in his opinion appellant's bulging disks were not caused by degenerative arthritis. During cross-examination, Dr. Myers testified that he could find no objective evidence of nerve damage that would explain appellant's complaints of pain and that appellant had no bruises, scrapes or contusions. In his medical report, Dr. Myers expressed concern over the possibility of "emotional overlay," which he described as anxiety causing a patient's symptoms to magnify. Finally, Dr. Myers testified on cross-examination that he would tend to agree with Dr. Mayes' diagnosis that appellant's back trouble was the result of normal wear and tear and not connected to the alleged incident at Wal-Mart.

In March 1987, fourteen months after the incident at Wal-Mart, appellant visited Dr. Garth Russell, an orthopedic surgeon in Columbia, Missouri. Appellant's attorney referred him to Dr. Russell. Dr. Russell examined appellant and Dr. Joseph Soha performed two magnetic resonance imagery tests. The tests revealed a herniated or ruptured disk. Dr. Russell performed surgery to correct appellant's herniated disk on April 6, 1987. Dr. Russell's videotaped deposition was played to the jury, but his opinion that appellant's herniated disk was caused by the incident at Wal-Mart was stricken from the record. Dr. Russell speculated that the disk may have been herniated in July 1986, but also admitted that herniated disks can be caused by numerous physical activities.

Dr. Myers was also questioned about the significance of appellant's herniated disk. Dr. Myers testified that it could have been related to the bulging disks diagnosed after the incident at Wal-Mart if no other trauma occurred between January 1986 and March 1987. Dr. Myers also testified that a slightly bulging disk such as that found in appellant's spine is unlikely to herniate without some intervening stress and that, in his opinion, appellant's back condition had improved, not worsened, by the time of appellant's last visit in January 1987.

Wal-Mart argued to the jury that appellant failed to demonstrate any negligence on its part or any connection between the alleged negligence and appellant's injuries. Wal-Mart argued that appellant's bulging disks were not related to the alleged incident at Wal-Mart but rather were caused by normal wear and tear and that some intervening activity caused appellant's disk The case was submitted to the jury on a theory of res ipsa loquitur. ² The jury returned a verdict in favor of Wal-Mart. This appeal followed.

to herniate fourteen months after the alleged incident. Wal-Mart also argued that appellant's subjective complaints of pain were not credible. One witness, who first met appellant in 1980, saw appellant run across his yard and jump a two-foot wall in June 1986. Wal-Mart also called several witnesses who worked with appellant at the Tivoli Hills Resort in Clarksville, Missouri, after his surgery in the spring of 1987. They testified that they witnessed appellant doing strenuous work including lifting heavy items.

II. EXPERT MEDICAL TESTIMONY

Appellant challenges several evidentiary rulings involving the testimony of his medical experts. Specifically, appellant challenges the district court's refusal to allow Dr. Myers and Dr. Russell to testify whether they believed appellant experienced a trauma to his lower back. ³ Appellant also challenges the court's refusal to allow Dr. Mayes to give his opinion on whether bulging disks can result from a trauma.

An expert witness may give his or her opinion if it will help the trier of fact understand the evidence or determine a fact in issue. Fed.R.Evid. 702. Such testimony is not objectionable merely because it embraces an ultimate issue to be decided by the trier of fact. Fed.R.Evid. 704(a). A trial court may, however, exclude opinion testimony if it is so couched in legal conclusions that it supplies the fact finder with no information other than what the witness believes the verdict should be. Hogan v. AT & T, 812 F.2d 409, 411 (8th Cir.1987) (Hogan). " '[D]oubts about whether an expert's testimony will be useful should generally be resolved in favor of admissibility.' " Larabee v. MM & L Int'l Corp., 896 F.2d 1112, 1116 n. 6 (8th Cir.1990) (quoting J. Weinstein & M. Berger, Weinstein's Evidence p 702, at 702-30 (1988)). In Hurst v. United States, 882 F.2d 306, 311 (8th Cir.1989) (citing Loudermill v. Dow Chemical Co., 863 F.2d 566, 570 (8th Cir.1988)), we also noted that "[a] trial court should exclude an expert opinion only if it is so fundamentally unsupported that it cannot help the factfinder."

A trial court's ruling excluding expert testimony is reviewed on appeal under the abuse of discretion standard. Hogan, 812 F.2d at 410; Soo Line R.R. v. Fruehauf Corp., 547 F.2d 1365, 1374 (8th Cir.1977). An abuse of discretion will, however, only constitute reversible error if it affects a substantial right of the party challenging the ruling. Fed.R.Evid. 103(a); Fed.R.Civ.P. 61; Strong v. Mercantile Trust Co., 816 F.2d 429, 432 (8th Cir.1987) (Strong), cert. denied, 484 U.S. 1030, 108 S.Ct. 759, 98 L.Ed.2d 771 (1988); Hogan, 812 F.2d at 410, 412. In addition, a litigant has not preserved for appellate review a challenge to a ruling excluding evidence unless the substance of the evidence was made known to the trial court by offer of proof or was apparent from the context within which the question was asked. Fed.R.Evid. 103(a)(2); Strong, 816 F.2d at 431. When a party has failed to preserve an evidentiary issue for appellate review, we reverse only when there is plain error. Higgins v. Hicks Co., 756 F.2d 681, 684 (8th Cir.1985) (Higgins ).

A.

With these standards in mind, we turn to the propriety of the court's refusal to allow appellant's counsel to ask Dr. Myers and Dr. Russell whether in their opinion appellant experienced a trauma to his lower back. Appellant argues that he was not asking each witness to state whether the shelf actually fell on appellant but rather was asking whether appellant's back...