Karla Robinson v. Geico General Ins. ( 2006 )


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  •                      United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 05-3191
    ___________
    Karla Robinson,                   *
    *
    Appellant,               *
    * Appeal from the United States
    v.                            * District Court for the
    * Eastern District of Missouri.
    GEICO General Insurance Company, *
    *
    Appellee.                *
    ___________
    Submitted: February 13, 2006
    Filed: May 19, 2006
    ___________
    Before LOKEN, Chief Judge, BOWMAN and SMITH, Circuit Judges.
    ___________
    SMITH, Circuit Judge.
    Karla Robinson sued her auto insurance company, GEICO General Insurance
    Company, seeking payment of damages allegedly caused by an underinsured motorist.
    Following a bench trial, the district court1 found that Robinson failed to prove the
    accident caused her injury. On appeal, Robinson challenges the admissibility of
    GEICO's medical expert testimony and the district court's conclusions regarding
    causation. We hold that (1) the district court did not abuse its discretion by allowing
    1
    The Honorable Carol E. Jackson, Chief Judge, United States District Court for
    the Eastern District of Missouri.
    the testimony of GEICO's medical expert; and (2) this testimony provided substantial
    evidence in support of the district court's findings. Therefore, we affirm.
    I. Background
    Robinson's vehicle was struck in the rear while in line to turn off an I-55 exit
    ramp. Joseph Groves's car crashed into the back of James Firestine's truck, which then
    bumped Robinson's vehicle. The relatively minor impact caused $650 in damages to
    Robinson's rear bumper. Robinson's vehicle did not strike the car in front of her.
    Firestine was not immediately aware that his vehicle had actually struck Robinson's
    bumper. Both Robinson and Firestine drove their respective vehicles from the accident
    scene.
    Several hours later, Robinson began to feel pain in her neck, right shoulder, and
    back. Two days later, Robinson called her physician, Dr. Susan Reynolds, to schedule
    an appointment. Robinson saw Dr. Reynolds five days later. Dr. Reynolds referred
    Robinson to Dr. Thomas Lee, an orthopedic specialist. A few days later, Robinson
    saw Dr. Lee, who diagnosed Robinson with a right rotator cuff contusion and lumbar
    sprain. X-rays of Robinson's right shoulder revealed a pre-accident condition called
    a Type II acromion2 with a bone spur. Dr. Lee prescribed medication and physical
    therapy. When this treatment failed to resolve Robinson's shoulder pain, Dr. Lee
    performed surgery, removing the bone spur and part of the clavicle to increase the
    space between the rotator cuff and the acromion bone. The surgery successfully
    relieved Robinson's pain.
    2
    The acromion is the "lateral end of the spine of the scapula which projects as
    a broad flattened process overhanging the glenoid fossa; it articulates with the clavicle
    and gives attachment to part of the deltoid and of the trapezius muscles." STEDMAN'S
    MEDICAL DICTIONARY 17 (4th ed. 1976). "Acromions are classified by degree of
    curvature, from Type I through Type III. As curvature increases, the space between
    the rotator cuff and [the] acromion decreases. Dr. Lee described the Type II acromion
    as a congenital abnormality." Dist. Ct. Opinion at 5 n.4.
    -2-
    Robinson sued Groves and Firestine in state court and settled the claims for the
    $25,000 policy limit of the responsible party. Robinson then filed a claim for $75,000
    under the $100,000 underinsured motorist ("UIM") coverage in her automobile
    insurance policy with GEICO. After Robinson rejected GEICO's offer to settle for
    $7,500, she pursued the instant case in district court.
    At trial, testimony focused on the extent of Robinson's injury traceable to the
    I-55 automobile accident. Robinson testified that before the accident, she saw Groves's
    car approaching, anticipated a collision, and placed her right arm on the dashboard to
    brace herself. She claimed that her right arm was outstretched and that her right
    shoulder absorbed most of the force from the impact. Robinson relied upon the
    testimony of Dr. Lee to establish causation. Dr. Lee testified that rear impact while
    one's arm is locked could drive the rotator cuff against the acromion, bruising the
    tendon and causing it to swell. Dr. Lee further testified that subsequent arm
    movements rub the swollen tendon against the bone, which increases the swelling
    further exacerbating the pain.
    Dr. Lee opined that Robinson's shoulder injury could have occurred even if
    Robinson had not braced herself against the steering wheel because she wore a
    seatbelt. According to Lee, seatbelt restraint increased the likelihood of impingement
    of the right shoulder because the right shoulder would accelerate as she pivoted
    forward from the impact. Dr. Lee testified that persons with Type II acromion are
    more prone to adhesive capsulitis and opined that Robinson probably had adhesive
    capsulitis when Dr. Bassman treated her in 1992.3 Dr. Lee also testified that
    3
    In 1992, several years before the accident, Robinson was injured at work. At
    trial, she testified that the injury was caused by 12-packs of beer falling on her.
    However, reports prepared at the time state that Robinson attributed the injury to
    excessive lifting and did not mention any falling objects. After the work injury,
    Robinson saw Dr. Bassman, who diagnosed her with a strained shoulder. In 1994, Dr.
    Bassman saw Robinson again, but at trial, Robinson denied that Dr. Bassman's records
    -3-
    Robinson's "shoulder forward posture," noted in a 1994 medical report, can adversely
    affect shoulder impingement. With regard to Robinson's back injuries, Dr. Lee
    concluded that the accident aggravated her degenerative disk disease.
    Dr. Simon Horenstein, a neurologist, testified on behalf of GEICO that the I-55
    automobile accident did not injure Robinson's right shoulder. Dr. Horenstein
    explained that the shoulder area has a dense supply of nerves, and consequently, one
    who suffers an injury to the shoulder joint is "usually symptomatic immediately."
    Because Robinson did not experience shoulder pain until hours after the accident and
    did not seek medical attention for two days following the accident, Dr. Horenstein
    considered the onset of Robinson's symptoms more consistent with "muscle
    discomfort" as a result of "jostling or postural distortion" than a consequence of
    shoulder joint injury.
    Dr. Horenstein contradicted Dr. Lee's theory regarding the mechanism of injury.
    Dr. Horenstein stated that when the extended arm is struck from the palm, the arm acts
    like a battering ram into the glenoid fossa. Robinson did not have an injury to the
    glenoid fossa but was treated for pain in the acromioclavicular joint ("AC joint"). Dr.
    Horenstein testified that injuries to the AC joint are typically associated with a blow
    to the top or front of the shoulder. However, Robinson's shoulder did not strike any
    object as a result of the collision. In addition, Dr. Horenstein cited a long-term study
    conducted by the Canadian government theorizing that a rear-impact collision causes
    one to be thrown backward. Under that theory, Robinson's body would have initially
    referred to her, insisting that Dr. Bassman must have another left-handed patient
    named Karla Robinson, who had a similar shoulder condition. In her answers to
    interrogatories in the lawsuit against Groves and Firestine, Robinson did not disclose
    the prior injury or her treatments by Dr. Bassman. In her answers to GEICO's
    interrogatories, Robinson did not disclose that she fell down a set of steps in October
    2001 (approximately eleven months after the automobile accident) and received
    physical therapy on her right buttock and leg. As a result, the district court found
    Robinson lacked credibility.
    -4-
    moved away from the dashboard, contrary to the theory offered by her expert that her
    body thrust forward causing the extended right arm to jar into her shoulder. Dr.
    Horenstein concluded that the condition in Robinson's AC joint was preexisting
    shoulder joint disease.
    Following a bench trial, the district court ruled in favor of GEICO, finding that
    Robinson failed to establish causation by a preponderance of the evidence. The court
    accepted Dr. Horenstein's testimony, finding that Robinson's preexisting shoulder
    condition likely necessitated the surgery rather than the automobile accident. The
    court discounted Dr. Lee's opinion because Robinson did not inform Dr. Lee of the
    1992 and 1994 episodes of shoulder pain and did not accurately represent the
    circumstances of the collision to him.4 With respect to Robinson's alleged back
    injuries, the district court found that Robinson failed to identify any specific damages
    attributable to her back pain and could not establish that such damages would exceed
    the $25,000 settlement that she received from her state court action against Groves
    and Firestine. Robinson then filed the instant appeal to the judgment of the district
    court.
    II. Discussion
    On appeal, Robinson argues that Dr. Horenstein's testimony was inadmissible
    and that the district court's findings are contradicted by the record. For the following
    reasons, we affirm.
    4
    In her initial visit with Dr. Lee, Robinson stated that her vehicle sustained a
    heavy impact from the rear and that her hands were on the steering wheel, with her
    right arm "sort of braced." Dr. Lee testified that he understood that Robinson's body
    came forward against the steering wheel.
    -5-
    A. Medical Expert Testimony
    Robinson challenges the admissibility of Dr. Horenstein's testimony, which
    was critical to the outcome of the case. Specifically, Robinson contends that Dr.
    Horenstein, a neurologist, testified outside of his expertise and thus was not a
    "qualified" expert within the meaning of Rule 702 of the Federal Rules of Evidence.
    We disagree.
    Rule 702 provides
    If scientific, technical, or other specialized knowledge will assist the trier
    of fact to understand the evidence or to determine a fact in issue, a
    witness qualified as an expert by knowledge, skill, experience, training,
    or education, may testify thereto in the form of an opinion or otherwise,
    if (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.
    Rule 702 was amended in 2000 in response to Daubert v. Merrell Dow
    Pharmaceuticals, Inc., 
    509 U.S. 579
    (1993) and its progeny. Fed. R. Evid. 702
    advisory committee's note. Daubert charged trial judges with acting as gatekeepers to
    exclude unreliable expert testimony. Kuhmo Tire Co., Ltd. v. Carmichael, 
    526 U.S. 137
    , 147 (1999). Daubert provides a district court with the discretion necessary to
    close the courtroom door to "junk science" and to admit reliable expert testimony that
    will aid the trier of fact. Amorgianos v. Nat'l R.R. Passenger Corp., 
    303 F.3d 256
    , 267
    (2d Cir. 2002). "A review of the caselaw after Daubert shows that the rejection of
    expert testimony is the exception rather than the rule." Fed. R. Evid. 702 advisory
    committee's note. "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." 
    Daubert, 509 U.S. at 595
    . We
    -6-
    review a district court's decision to admit expert testimony for an abuse of discretion.
    United States v. Cawthorn, 
    429 F.3d 793
    , 799 (8th Cir. 2005).
    The district court did not abuse its discretion by allowing the testimony of Dr.
    Horenstein. Rule 702 does not require a defense medical expert to be of the identical
    medical speciality as the plaintiff's expert. Instead, Rule 702 only requires that an
    expert possess "knowledge, skill, experience, training, or education" sufficient to
    "assist" the trier of fact, which is "satisfied where expert testimony advances the trier
    of fact's understanding to any degree." 29 WRIGHT & GOLD, FEDERAL PRACTICE AND
    PROCEDURE: EVIDENCE § 6265 (1997). "Gaps in an expert witness's qualifications or
    knowledge generally go to the weight of the witness's testimony, not its admissibility."
    Id.; see also Lauria v. Nat'l R.R. Passenger Corp., 
    145 F.3d 593
    , 598 (3d Cir. 1998)
    (holding trial court abused its discretion by excluding testimony simply because the
    trial court did not deem proposed expert to be the best qualified or because proposed
    expert did not have the specialization that the trial court considered most appropriate).
    However, Rule 702 does require that "the area of the witness's competence matches
    the subject matter of the witness's testimony." WRIGHT & GOLD, supra § 6265. Most
    courts have held that a physician with general knowledge may testify regarding
    medical issues that a specialist might treat in a clinical setting. 
    Id. Although not
    an orthopedist, Dr. Horenstein assisted the trier of fact with
    relevant testimony from his expertise in neurology. Dr. Horenstein's testimony
    pertained to the cause of the shoulder problems that made Robinson's surgery
    necessary. His testimony regarding the usual onset of shoulder pain was within his
    realm of expertise as a neurologist. As a physician, he could testify regarding the
    likely type of injury one would sustain by the impact of the arm into the shoulder
    joint. Also, Dr. Horenstein's study of the subject qualified him to testify regarding the
    direction one would be forced in a rear-impact collision. Therefore, the district court
    did not abuse its discretion by admitting his testimony.
    -7-
    B. Causation
    The district court found that the automobile accident did not cause Robinson's
    shoulder condition or the need for the surgery performed by Dr. Lee. Robinson argues
    that the record contradicts the district court's findings of fact regarding causation.
    Although a plausible alternative theory of the cause of Robinson's injury exists,
    substantial evidence supported the district court's conclusion. Therefore, we affirm.
    "In reviewing a district court's order entering judgment after a bench trial, we
    review the court's factual findings for clear error and its legal conclusions de novo."
    Tadlock v. Powell, 
    291 F.3d 541
    , 546 (8th Cir. 2002) (citing Fed. R. Civ .P. 52(a)).
    Rule 52(a) requires that "due regard shall be given to the opportunity of the trial court
    to judge the credibility of the witnesses." "A factual finding supported by substantial
    evidence on the record is not clearly erroneous. A district court's choice between two
    permissible views of evidence cannot be clearly erroneous." 
    Tadlock, 291 F.3d at 546
    (citations omitted).
    The district court found that Robinson failed to establish by a preponderance
    of the evidence that the condition in her shoulder was caused by the accident. Dr.
    Horenstein's testimony provides substantial evidence in support of the district court's
    finding. Dr. Horenstein testified that the condition in the plaintiff's AC joint probably
    resulted from preexisting shoulder joint disease. Robinson's medical history of right
    shoulder pain, as well as her Type II acromion and postural factors, support this
    conclusion. Robinson suffers from a similar condition in her left shoulder, which may
    require surgery in the future.5 Although Dr. Lee offered a plausible theory of causation
    that differed from that of Dr. Horenstein, "[a] district court's choice between two
    permissible views of evidence cannot be clearly erroneous." 
    Tadlock, 291 F.3d at 546
    .
    Moreover, the district court concluded that Dr. Lee's opinion was entitled to less
    5
    The condition in this shoulder is the result of Type II acromion and postural
    factors and is not the result of the automobile accident.
    -8-
    weight because Robinson did not inform him of her prior episodes of similar shoulder
    pain and did not accurately represent the circumstances of the collision.
    Furthermore, even if Robinson's shoulder absorbed the impact of the collision
    in the manner theorized by Dr. Lee, Dr. Horenstein viewed Robinson's injury as
    inconsistent with the injury typically expected. He explained that the shoulder
    contains a dense concentration of nerves and that the impact of the arm against these
    nerves would cause immediate pain, not the delayed onset of pain experienced by
    Robinson. In short, Dr. Horenstein's testimony undercut plaintiff's theory of causation,
    and the district court credited the testimony. We hold substantial evidence supported
    the district court's finding that Robinson failed to establish causation.
    III. Conclusion
    The district court did not abuse its discretion by allowing Dr. Horenstein's
    testimony, and his testimony provided substantial evidence in support of the district
    court's conclusion. Therefore, we affirm.
    ______________________________
    -9-