Walker, Richard v. Soo Line Railroad ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 98-4237
RICHARD WALKER,
Plaintiff-Appellant,
v.
SOO LINE RAILROAD COMPANY,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 93 C 3861--Arlander Keys, Magistrate Judge.
Argued September 16, 1999--Decided March 31, 2000
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, ___,
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. 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 decrease was not due to any
electrical trauma. On the other hand, the jury
might have been convinced that, evaluating Dr.
Pliskin’s testimony in its entirety, his
conclusions remained sound despite the defects in
the patient history. The critical point is that
Dr. Pliskin employed a proper methodology to
determine Mr. Walker’s pre-incident IQ. It was
appropriate for Dr. Pliskin to rely on the test
that he administered and upon the sources of
information which he employed./1
Having determined that Dr. Pliskin’s testimony
was based on an acceptable methodology, we must
consider whether it would have assisted the jury
with a fact at issue. Soo Line argues that Dr.
Pliskin’s testimony should have been excluded
because he does not state definitively that the
electrical trauma caused the drop in Mr. Walker’s
IQ. Under FELA, causation is a jury question. See
Scaggs v. Consolidated Rail Corp., 6 F.3d 1290,
1293-94 (7th Cir. 1993). From Dr. Pliskin’s
testimony, the jury could choose to infer that
any electrical trauma Mr. Walker suffered caused
his decline in IQ. Dr. Pliskin is not required to
have an opinion on that ultimate question to be
permitted to testify./2 His testimony could
assist the trier of fact even if he cannot say
with complete certainty that electrical trauma
caused Mr. Walker’s decline in functioning.
The district court expressed concern that the
jury would not be "sophisticated enough to
understand the cross-examination, the attempts by
the defendant to bring out that Dr. Pliskin’s
opinion is really not as sound as he would give
it on direct examination." The Supreme Court,
however, has expressed its confidence in the
ability of juries to understand complicated
material, and we believe the district court
should have allowed the jury to consider Dr.
Pliskin’s evidence in this case. See Daubert, 509
at 595-96 (acknowledging a party’s concern about
"a ’free-for-all’ in which befuddled juries are
confounded by absurd and irrational
pseudoscientific assertions" but finding those
concerns "overly pessimistic about the
capabilities of the jury and of the adversary
system generally")./3
Of course, as Daubert made clear, the trial
court must also keep in mind the other rules
regarding the admissibility of evidence. See
Daubert, 509 U.S. at 595. On this record, we
cannot discern any independent reliance on the
part of the district court on any other rule.
B. Dr. Mary Capelli-Schellpfeffer
The district court refused to allow any
testimony by Dr. Mary Capelli-Schellpfeffer, the
head of the clinical team at the University of
Chicago that examined and evaluated Mr. Walker.
Dr. Capelli-Schellpfeffer concluded, based to a
significant extent on her discussions with
members of the team, that Mr. Walker had post-
traumatic stress disorder and had lost function
because of an electrical injury. She was also
prepared to testify that it was not unusual for
electrical injuries to first manifest themselves
long after the electrical trauma that caused
them, as Mr. Walker argued his did. The district
court determined that Dr. Capelli-Schellpfeffer
was not qualified to testify about post-traumatic
stress disorder because she was not qualified as
a psychiatrist or psychologist. It acknowledged
that she was qualified to testify about the
effect of electrical trauma on the human body,
but still barred her testimony in its entirety.
Although the district court’s statement of its
reasons for excluding Dr. Capelli-Schellpfeffer’s
testimony are not stated with optimal clarity, it
is clear that the wholesale disallowance of this
testimony was not an acceptable exercise of
discretion. At the outset, we think that it was
proper for a physician working in the role that
Dr. Capelli-Schellpfeffer held on the diagnostic
and evaluation team to rely on the work of her
team members in forming her opinion. Medical
professionals have long been expected to rely on
the opinions of other medical professionals in
forming their opinions. See Birdsell v. United
States, 346 F.2d 775, 779-80 (5th Cir. 1965)
("With the increased division of labor in modern
medicine, the physician making a diagnosis must
necessarily rely on many observations and tests
performed by others and recorded by them . . .
."); see also Durflinger v. Artiles, 727 F.2d
888, 892-93 (10th Cir. 1984); Jenkins v. United
States, 307 F.2d 637, 641-42 (D.C. Cir. 1962);
Boehme v. Maxwell, 309 F. Supp. 1106, 1110 (W.D.
Wash. 1968) (quoting Birdsell). Federal Rule of
Evidence 703, the rule governing the appropriate
bases of expert testimony, specifically
contemplates, in its advisory committee notes,
reliance on "reports and opinions from nurses,
technicians and other doctors." Fed. R. Evid.
703; see also Southland Sod Farms v. Stover Seed
Co., 108 F.3d 1134, 1142 (9th Cir. 1997) (citing
Rule 703). Indeed, courts frequently have pointed
to an expert’s reliance on the reports of others
as an indication that their testimony is
reliable./4 Expert testimony relying on the
opinions of others should, of course, be rejected
if the testifying expert’s opinion is too
speculative, see Washington v. Armstrong World
Indus., 839 F.2d 1121, 1123-24 (5th Cir. 1988),
or the underlying basis is faulty, see National
Bank of Commerce v. Dow Chem. Co., 965 F. Supp.
1490, 1523-24 (E.D. Ark. 1996), aff’d, 133 F.3d
1132 (8th Cir. 1998) (per curiam).
Soo Line argues that Dr. Capelli-Schellpfeffer’s
opinion that Mr. Walker suffered from post-
traumatic stress disorder is unreliable because
she relies primarily on Dr. Pliskin’s work, and
Dr. Pliskin concluded that Mr. Walker did not
have post-traumatic stress disorder. That two
different experts reach opposing conclusions from
the same information does not render their
opinions inadmissible. See Allapattah Servs.,
Inc. v. Exxon Corp., 61 F. Supp. 2d 1335, 1341
(S.D. Fla. 1999) ("Merely because two qualified
experts reach directly opposite conclusions using
similar, if not identical, data bases . . . does
not necessarily mean that, under Daubert, one
opinion is per se unreliable."). Moreover, Dr.
Capelli-Schellpfeffer also relied on the
information of other professionals who examined
Mr. Walker, including a psychiatrist, Dr. Kelly.
This additional information, coupled with her own
limited examination of Mr. Walker, reasonably
could have led her to come to a conclusion
different from Dr. Pliskin’s. To the degree that
she might have relied on faulty information, the
matter certainly could be explored on cross-
examination.
Nor do we believe that the leader of a clinical
medical team must be qualified as an expert in
every individual discipline encompassed by the
team in order to testify as to the team’s
conclusions. The team approach to medical
diagnosis and treatment is employed to ensure
that all relevant disciplines work together for
the good of the patient. The leader of that team
is chosen because of her ability to assess
accurately the role that each member of the team
ought to play and to reconcile, when necessary,
competing perspectives. In short, the expertise
of the team leader is the capability to evaluate,
in light of the overall picture, the
contributions of each member of the team. Here,
the district court found Dr. Capelli-
Schellpfeffer to be an expert on the subject of
electrical trauma. As part of that expertise, she
naturally would be expected to have expertise on
the subject of whether electrical injuries could
cause post-traumatic stress disorder. Dr.
Capelli-Schellpfeffer is not a psychiatrist and
well might not be able to render an opinion about
diagnosing post-traumatic stress disorder on the
basis of something other than electrical trauma.
However, as the leader of a clinical team
specializing in electrical injury, who reasonably
relied on the expert opinions of specialists who
also examined Mr. Walker, her conclusion that Mr.
Walker suffered from post-traumatic stress
disorder was a professional opinion that the jury
had the right to consider.
C. Dr. Martin Uman
Dr. Martin Uman, the chairman of the electrical
engineering department at the University of
Florida, testified in his deposition about
different ways that lightning could have
penetrated Tower A. Starting with the assumption
that lightning could have hit in any one of
several places in the rail yard, Dr. Uman offered
testimony of how, from those several places,
electricity could have penetrated Tower A. Dr.
Uman said that Mr. Walker could have been injured
through a direct hit to Tower A, through a hit to
the light tower near Tower A, or through a hit to
wires in the yard connected to a switch on Mr.
Walker’s control board, if Mr. Walker happened to
be touching that switch at the time. He also
acknowledged that it was possible that lightning
could have hit the yard without injuring Mr.
Walker in any way. The district court allowed
only those portions of Dr. Uman’s testimony that
addressed the possible dangers if the tower had
been struck directly by lightning; that testimony
was only allowed in Mr. Walker’s rebuttal case to
contradict the testimony of Soo Line expert Frank
Denbrock.
We must conclude that the district court’s
decision in restricting Dr. Uman’s testimony
cannot stand even under the deferential standard
of review. Experts are allowed to posit alternate
models to explain their conclusion. See Cole v.
Control Data Corp., 947 F.2d 313, 319 (8th Cir.
1991) (permitting testimony about alternate
models for calculating damages); John Morrell &
Co. v. Local Union 304A, 913 F.2d 544, 558-59
(8th Cir. 1990) (allowing expert to testify about
eight different damages models). The jury would
have been assisted by learning different ways
that lightning could have penetrated the tower.
This testimony could have been helpful even
though Dr. Uman cannot say with any certainty
where exactly lightning hit the rail yard, if it
hit the rail yard at all. Dr. Uman intended to
explain to the jury the ramifications of
lightning striking at different points in the
yard; the jury, based on eyewitness testimony and
on any meteorological evidence entered by the
parties, could decide whether it thought
lightning had in fact hit anywhere in the yard.
The questions of whether lightning hit the yard,
and if so where, were questions of fact. See
Dallas County v. Commercial Union Assurance Co.,
286 F.2d 388, 390 (5th Cir. 1961) (lightning
striking clock tower); Hartford Fire Ins. Co. v.
Thompson, 175 F.2d 10 (8th Cir. 1949) (lightning
striking cattle). Such questions are for the
jury. See Chandris, Inc. v. Latsis, 515 U.S. 347,
373 (1995); Robinson v. Burlington Northern R.R.
Co., 131 F.3d 648, 653 (7th Cir. 1997). Soo Line,
through evidence of its own, could have attempted
to show that lightning did not strike any of the
vulnerable points identified by Dr. Uman. It also
could have presented testimony contradicting Dr.
Uman’s assertions that lightning striking various
points in the rail yard could have affected
someone working in Tower A. The jury then could
have decided whether it thought lightning struck
the yard and, if it concluded that lightning did
strike, could have determined whether that
lightning injured Mr. Walker. Dr. Uman had
scientifically valid testimony that would have
assisted the jury with its inquiry, and--assuming
the testimony was in conformity with the other
Federal Rules of Evidence--the district court
should have allowed him to present that testimony
to the jury.
D. Frank Denbrock
Frank Denbrock, an electrical engineer who has
extensive experience in the field of electrical
safety, inspected the rail yard in 1997. He
testified for Soo Line, over Mr. Walker’s
objection about the safety of Tower A. Expert
testimony from technical fields is governed by
the same concerns and criteria as the admission
of medical expert testimony. See Kumho Tire Co.
v. Carmichael, 119 S. Ct. 1167, 1174-76 (1999).
The district court admitted Denbrock’s testimony.
Mr. Walker contends that the district court
conducted an inadequate Daubert hearing before
choosing to admit Denbrock’s testimony. We review
de novo "whether the district court properly
followed the framework set forth in Daubert."
United States v. Hall, 165 F.3d 1095, 1101 (7th
Cir.), cert. denied, 119 S. Ct. 2381 (1999).
"Upon a determination that the district court
properly applied the Daubert framework, the
district court’s decision to admit or exclude
expert testimony is reviewed only for an abuse of
discretion." Id. The discussion of Denbrock’s
qualifications took place in the context of a
discussion about the qualifications of several
witnesses. It is true that the district court did
not articulate explicitly Denbrock’s experience
in terms of the Daubert factors, but the district
court’s consideration of the question was not so
inadequate as to render it faulty as a matter of
law. When issuing oral rulings on Daubert
questions, trial judges need not "recite the
Daubert standard as though it were some magical
incantation." See Ancho v. Pentek Corp., 157 F.3d
512, 518 (7th Cir. 1998).
On the factual issue of Denbrock’s
qualifications, the district court did not abuse
its discretion by admitting Denbrock’s testimony.
Mr. Walker argues that Denbrock’s testimony
should have been excluded because his inspection
was inadequate and his conclusions were faulty.
Mr. Walker is correct that shoddy preparation by
an expert might evidence a lack of professional
qualifications on the part of a proffered
witness. See Ancho, 157 F.3d at 516-19. We are
not prepared to say, however, that the district
court’s decision to admit Denbrock’s testimony
was an abuse of discretion. Denbrock was offered
as an expert on the basis of his work for a power
company, where he was responsible for ensuring
the safety of its facilities from lightning.
Denbrock demonstrated professional experience in
the area of electrical safety, and Rule 702
specifically contemplates the admission of
testimony by experts whose knowledge is based on
experience. See Kumho Tire, 119 S. Ct. at 1174;
Hall, 165 F.3d at 1101. Although the district
court did not discuss Denbrock’s personal
knowledge of the site in question at the Daubert
hearing, Denbrock testified at trial that he
personally had inspected the tower. If there was
evidence that Tower A was unsafe that Denbrock
should have considered but did not, or if there
was reason to believe that Denbrock’s
investigation was shoddy, Mr. Walker could have
uncovered those flaws through cross-examination
and through the presentation of contrary
evidence. Here Denbrock provided a sufficient
showing of his expertise. The district court did
not abuse its discretion by allowing Denbrock’s
testimony.
E. Dr. Adrian Upton
Dr. Adrian Upton is a medical expert witness who
testified for Soo Line. He testified about Mr.
Walker’s medical condition after reviewing Mr.
Walker’s medical records. Mr. Walker argues that
Dr. Upton was not qualified to testify on the
subject because he did not have sufficient
experience in trauma caused by lightning and
personally had not examined Mr. Walker.
Dr. Upton’s specialty is the effect of electric
current on the human body. There is no dispute as
to his medical qualifications. In allowing Dr.
Upton to testify, the district court relied upon
Dr. Upton’s experience in treating patients with
electrical injuries and upon Dr. Upton’s
examination of Mr. Walker’s medical records.
These factors were a sufficient basis for the
district court to find Dr. Upton qualified as an
expert witness. The lack of an examination of Mr.
Walker does not render Dr. Upton’s testimony
inadmissible. See In re Paoli R.R. Yard PCB
Litig., 35 F.3d 717, 762 (3d Cir. 1994) ("[W]e
think that evaluation of the patient’s medical
records, like performance of a physical
examination, is a reliable method of concluding
that a patient is ill even in the absence of a
physical examination."). Indeed, we have said
that the examination of medical records can be an
important part of an expert witness’ preparation.
See O’Conner v. Commonwealth Edison Co., 13 F.3d
1090, 1107 (7th Cir. 1994). The district court
did not abuse its discretion by admitting Dr.
Upton’s testimony.
F. The Madden State Hospital Records
The district court allowed Soo Line to introduce
into evidence Mr. Walker’s records from Madden
State Hospital. Soo Line quoted from the records
during closing argument. Mr. Walker was a patient
on three occasions: in 1972, 1973 and 1978. The
portion of the record quoted by Soo Line during
closing argument noted that Mr. Walker was
admitted in 1972 for six weeks of treatment, and
then again in 1978. Mr. Walker argues that the
records should not have been admitted because his
hospitalization occurred so long before the
events at the rail yard that they could not be
relevant to his condition at that time.
Nonetheless, Dr. Pliskin, a witness for Mr.
Walker, acknowledged at trial that he would have
liked to have known about Mr. Walker’s hospital
stay when preparing his evaluation of Mr.
Walker’s pre-incident abilities. On this record,
we see no reason to disturb the decision of the
district court.
G. Harmless Error
Soo Line also submits that any error by the
district court in the admission of evidence is
harmless. We shall vacate a jury verdict only if
error substantially influenced the jury. See
Palmquist v. Selvik, 111 F.3d 1332, 1339 (7th
Cir. 1997); Groom v. Days Inn, 62 F.3d 204, 208
(7th Cir. 1995). Here, the excluded testimony
from Dr. Pliskin, Dr. Capelli-Schellpfeffer, and
Dr. Uman formed a substantial portion of Mr.
Walker’s case. Our examination of the record
convinces us that the exclusion of their
testimony was not harmless error.
Conclusion
For the foregoing reasons, the jury verdict is
reversed, and the case is remanded for further
proceedings consistent with this opinion.
REVERSED and REMANDED
/1 Mr. Walker also contends that the district court
should have allowed Dr. Pliskin to testify about
Mr. Walker’s pre-incident IQ because Soo Line
opened the door to this topic in its cross-
examination of Dr. Pliskin. Because we hold that
Dr. Pliskin’s testimony should have been allowed
as part of Mr. Walker’s case-in-chief, we need
not address this argument.
/2 Historically, witnesses were expressly prohibited
from testifying about the ultimate issues facing
the jury. See Fed. R. Evid. 704 advisory
committee’s note. That prohibition was eliminated
in the federal courts by Federal Rule of Evidence
704, which allows such testimony (subject to an
exception in criminal cases not relevant here).
See Fed. R. Evid. 704; United States v. Baskes,
649 F.2d 471, 479 (7th Cir. 1980). Nothing in
that rule, or any other rule governing expert
testimony, requires an expert to opine on the
ultimate issue in order to have his testimony
admitted.
/3 There may be cases in which a patient’s self-
reported history is so patently misleading as to
make it unreasonable for an examining physician
to place any reliance on it. On this record,
however, it is clear that we have no such case
before us. Dr. Pliskin’s testimony should not
have been excluded under Daubert solely on the
ground that his patient’s self-reported history
contained some inaccuracies.
/4 See, e.g., Hose v. Chicago Northwestern Transp.
Co., 70 F.3d 968, 974 (8th Cir. 1995); United
States v. Lawson, 653 F.2d 299, 301-02 (7th Cir.
1981); Antoine-Tubbs v. Local 513, Air Transp.
Div., 50 F. Supp. 2d 601, 609 (N.D. Tex. 1998)
(citing Moore v. Ashland Chem., Inc., 126 F.3d
679, 690-91 (5th Cir. 1997), rev’d en banc, 151
F.3d 269 (5th Cir. 1998) and cert. denied, 119 S.
Ct. 1454 (1999)), aff’d, 190 F.3d 537 (5th Cir.
1999); Gess v. United States, 991 F. Supp. 1332,
1338 (M.D. Ala. 1997).