Testerman v. Riddell, Inc. , 161 F. App'x 286 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-1505
TROY TESTERMAN,
Plaintiff - Appellant,
versus
RIDDELL, INCORPORATED,
Defendant - Appellee.
Appeal from the United States District Court for the Western
District of Virginia, at Danville. Jackson L. Kiser, Senior
District Judge. (CA-03-71-4)
Argued: December 1, 2005 Decided: January 6, 2006
Before LUTTIG and MICHAEL, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
ARGUED: Richard Charles Armstrong, RICHMOND & FISHBURNE,
Charlottesville, Virginia, for Appellant. John Michael Perry, Jr.,
EDMUNDS & WILLIAMS, P.C., Lynchburg, Virginia, for Appellee. ON
BRIEF: Christine Thomson, RICHMOND & FISHBURNE, Charlottesville,
Virginia, for Appellant. Henry M. Sackett, III, EDMUNDS &
WILLIAMS, P.C., Lynchburg, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Troy Testerman badly injured his shoulder during a
college football game. At the time Testerman was wearing shoulder
pads made by Riddell, Inc. that were apparently selected for him by
a Riddell employee. Testerman sued Riddell on the theory that
under Virginia law the company negligently fit him with pads that
were too small to protect him during the game. The district court
excluded Testerman’s primary expert witness, granted summary
judgment in favor of Riddell, and declined to reconsider these
decisions after Testerman learned that Riddell had failed to timely
disclose in discovery an enhanced video of the injury. Testerman
appeals these rulings, and we now affirm.
I.
Testerman was co-captain of the Averett University
football team in Danville, Virginia. Riddell is an Illinois
corporation that makes shoulder pads and football helmets. On
August 31, 2002, Averett played in a scrimmage game against another
team. Testerman caught a pass; as he ran with the ball at least
three players hit him, and he fell to the ground, landing on his
left side. Testerman suffered a severe fracture of his left
scapula, or shoulder blade, requiring extensive surgery and
physical therapy. The injury permanently limited his ability to
move his arm fully and to lift heavy objects.
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During the game Testerman was wearing Riddell “Power 34”
shoulder pads. About two weeks before the scrimmage, a
representative of Riddell, Christopher Williams, had fit some
members of the Averett team with Riddell pads. Testerman alleged
that Williams selected the pads and fit him for size. Although
Williams could not recall fitting Testerman, Riddell stipulated to
Williams’s involvement for pre-trial purposes.
In August 2003 Testerman sued Riddell in the U.S.
District Court for the Western District of Virginia, invoking
diversity jurisdiction and alleging a negligence claim on the
theory that Williams, Riddell's agent, carelessly fitted Testerman
“with pads that were inadequate, inappropriate, [and] too small.”
J.A. 27-28. Testerman designated Kent Falb, a former head athletic
trainer for the Detroit Lions, as its principal expert. (In
opposing summary judgment Testerman also offered a rebuttal expert,
Joe Gieck.) Falb relied on deposition transcripts, a videotape of
the scrimmage provided by Averett, and his own “knowledge and
experience with respect to the fitting and use of football pads and
the injuries incurred in the game of football.” J.A. 39. While
Falb’s expert report concluded that a blow from the back caused
Testerman's scapula fracture, Falb later changed his mind and
testified at his deposition that impacts to the front and side of
the shoulder caused the injury.
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Riddell designated two experts: P. D. Halstead, director
of a sports biomechanics research lab at the University of
Tennessee, and Chris Van Ee, who holds a Ph.D. in biomechanical
engineering. Riddell enhanced the video image so that its experts
had access to a slow motion depiction of the scrimmage, but Riddell
did not provide the enhanced images to Testerman’s counsel until
the combined hearing on Riddell’s motion in limine and motion for
summary judgment.
The district court granted Riddell’s motion in limine
excluding Falb's expert testimony under Federal Rule of Evidence
702. The court concluded that Falb’s testimony as to the cause of
injury was unreliable and therefore inadmissible. After also
excluding the testimony of Testerman’s treating physician, the
district court granted Riddell's motion for summary judgment on the
ground that “[w]ithout the testimony of Falb and [the physician],
Plaintiff cannot establish a prima facie case of proximate
causation against Riddell.” J.A. 577.
Testerman then moved for alteration or amendment of the
judgment, offering a new affidavit from Falb based on a review of
the enhanced videotape and excerpts of his deposition transcript
not previously presented. Concluding that these new materials did
not “account for new evidence not available at trial,” the district
court concluded that there was no reason to reconsider its judgment
and denied the motion. J.A. 723-28. Testerman appeals. We apply
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state substantive law and federal procedural law in this diversity
case. Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427
(1996).
II.
A.
Testerman’s first contention is that the district court
erroneously excluded his expert’s testimony. Federal Rule of
Evidence 702, governing such testimony, 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.
Fed. R. Evid. 702. The rule requires trial court judges to serve
as gatekeepers for expert testimony and “ensure that any and all
[such] testimony is not only relevant, but reliable,” Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993), but the focus
of the inquiry “must be solely on principles and methodology, not
on the conclusions that they generate.” Id. at 595; see Cooper v.
Smith & Nephew, Inc., 259 F.3d 194, 199 n.1 (4th Cir. 2001)
(understanding the post-Daubert amendments to Rule 702 as leaving
unaltered Daubert’s standard for assessing reliability). District
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court evidentiary decisions are reviewed for abuse of discretion.
United States v. Forrest, 429 F.3d 73, 79 (4th Cir. 2005).
The district court identified three key questions that
Falb was unable to answer definitively: (1) which blow caused
Testerman’s injury; (2) whether the area of impact was covered by
the shoulder pad; and (3) whether the injury would have occurred,
or would have been substantially mitigated, had Testerman been
wearing different pads. Testerman argues that the district court
improperly concentrated on Falb’s conclusions rather than on the
reliability of the methods Falb used to reach those conclusions.
We disagree. It is true that the district court viewed
the videotape independently and cited the opinions of Riddell’s
expert Halstead in assessing Falb’s reliability, but this analysis
did not constitute impermissible weighing of evidence. Rather, the
district court looked to the other evidence simply to identify a
cause for Testerman’s injury not attributable to Riddell. This
evidence raised the prospect that Testerman was injured by a blow
to an area that would have been unprotected even by correctly
fitted pads. Such a blow could have come from either another
player or from hitting the ground. Falb’s methods for forming his
opinion did not allow him to rule out this potential alternate
cause with any degree of precision.
It was appropriate for the district court to concentrate
on this weakness in Falb’s methods as well as on the other problems
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it enumerated when it held Falb’s testimony to be inadmissible.
Thus, the district court properly emphasized the unreliability of
Falb’s methods even though it looked to the conclusions those
methods generated as evidence of unreliability. In granting
Riddell’s motion in limine to exclude Falb’s testimony, the
district court therefore did not abuse its discretion.
B.
Testerman’s second contention is that the district court
erred in granting summary judgment in Riddell’s favor. Summary
judgment is appropriate when “the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(c). We review de novo a
district court’s grant of summary judgment. Sunrise Corp. v. City
of Myrtle Beach, 420 F.3d 322, 327 (4th Cir. 2005). Although all
justifiable inferences are drawn in favor of the party opposing
summary judgment, “[c]onclusory or speculative allegations do not
suffice” to create a genuine issue of material fact. Thompson v.
Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002)
(punctuation omitted).
The district court granted summary judgment to Riddell
because “[w]ithout the testimony of [the experts], Plaintiff cannot
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establish a prima facie case of proximate causation against Riddell
. . . . [T]here is no admissible evidence to support the crucial
finding that the injury would not have occurred, or would have been
less severe, had the pads been properly fitted.” J.A. 577. We
affirm because well-established Virginia tort law supports the
district court’s conclusion that Testerman could not prevail at
trial without offering expert testimony on causation.
“[T]o warrant a finding that negligence . . . is the
proximate cause of an injury, it must appear [(1)] that the injury
was the natural and probable consequence of the negligence or
wrongful act, and [(2)] that it ought to have been foreseen in the
light of the attending circumstances.” Wyatt v. Chesapeake &
Potomac Tel. Co., 158 Va. 470, 477-78, 163 S.E. 370, 372 (1932).
Satisfaction of the first component (but for, or factual causation)
on summary judgment required Testerman to show that there was
enough evidence for trial indicating that properly fitting pads
would have absorbed enough of the force from his collision and fall
to prevent or significantly reduce the damage to his shoulder.
Since no witness observed the circumstances of the injury with
sufficient detail, Testerman needed an expert witness to offer this
evidence. But in building his affirmative case, he lacked such an
expert once Falb was excluded. The district court was therefore
correct in entering summary judgment for Riddell.
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C.
Testerman’s third contention is that the district court
erred in denying his motion for relief under Federal Rule of Civil
Procedure 59(e). Such relief may “be appropriate to account for
new evidence not available at trial. In that circumstance a party
must produce a legitimate justification for not presenting the
evidence during the earlier proceeding.” Small v. Hunt, 98 F.3d
789, 798 (4th Cir. 1996) (citations and punctuation omitted). We
review the denial of a Rule 59(e) motion for abuse of discretion.
United States ex rel. Becker v. Westinghouse Savannah River Co.,
305 F.3d 284, 290 (4th Cir. 2002).
Preliminarily, we note that Riddell provided no
explanation for its failure to disclose the existence of enhanced
videotape before the hearing on the in limine and summary judgment
motions. This failure meant that while Riddell’s experts had
timely access to the videotape, Testerman’s expert did not. A
report disclosing an expert’s anticipated testimony to the opponent
“shall contain a complete statement of all opinions to be expressed
and the basis and reasons therefore; the data or other information
considered by the witness in forming the opinions; [and] any
exhibits to be used as a summary of or support for the opinions.”
Fed. R. Civ. P. 26(a)(2)(B). Here, a detailed description of the
“data or other information” the expert considered would have
demonstrated greater respect for the discovery process than a vague
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description. For example, Halstead's report should have explained
that Halstead relied on numerous slow-motion and magnified images
of the scrimmage, rather than simply saying that he used “[v]ideo
of the injury play.” J.A. 163.
Although we do not condone Riddell’s tardiness in
producing the enhanced videotape, we are unable to conclude that
the district court erred in declining to revisit its prior ruling.
Rule 59(e) relief is rarely appropriate for a claimant who presents
new evidence that, even if presented in the earlier proceeding, had
no demonstrated probability of changing the outcome. The affidavit
Falb submitted on reviewing the enhanced videotape indicates that
even if he had examined the videotape before the hearing, his
conclusion about the precise cause of Testerman’s injury would not
have been affected.
In his affidavit Falb stated: “In my opinion, the
videotape prepared by the defense . . . does not have slow motion
depictions of the blow which caused Mr. Testerman’s injuries, as
the slow motion portions of the videotape commence just after that
blow occurred.” J.A. 587 ¶ 8. This sentence is the only one in
the affidavit that describes the significance of the enhanced
videotape. Nowhere does Falb declare that review of the videotape
in any way affected the outcome of his reasoning. Thus, the
district court did not err because Testerman’s motion did not point
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to newly discovered evidence that would have justified altering or
amending the judgment.
The judgment is affirmed.
AFFIRMED
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