NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 09-2216
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JAMES MCNAMARA,
Appellant
v.
KMART CORPORATION
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On Appeal from the District Court of the Virgin Islands
(D.C. No. 08-cv-00018)
District Judge: Timothy J. Savage
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Submitted Under Third Circuit LAR 34.1(a)
May 6, 2010
Before: SMITH, CHAGARES and JORDAN, Circuit Judges.
(Filed: May 14, 2010)
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OPINION OF THE COURT
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JORDAN, Circuit Judge.
This appeal arises out of appellant James McNamara’s personal injury lawsuit
against appellee Kmart Corporation (“Kmart”). McNamara’s negligence claim was tried
to a jury in the District Court of the Virgin Islands of the United States. In accordance
with the jury verdict, the District Court entered judgment in favor of McNamara and
against Kmart in the amount of $72,000. McNamara appeals certain evidentiary rulings
and requests a new trial on damages. Because we write only for the benefit of the parties,
we assume familiarity with the facts of this civil action and the proceedings in the District
Court. For the following reasons, we will affirm.
I. Background
A. Factual Background
The underlying facts are straightforward. On January 24, 2008, McNamara was
walking inside a Kmart store in Fredericksted, St. Croix, when he slipped on feces. As he
slipped, he turned to grab onto something to prevent himself from falling. In the course
of grabbing onto a stack of paper towels, he twisted and injured his back. He then sued
Kmart, alleging that its negligence proximately caused his injuries. After a trial, the jury
found that Kmart’s negligence was a substantial factor in causing McNamara’s injuries
and awarded him $72,000 in damages.
B. Evidentiary Rulings
The jury trial began on March 16, 2009. In advance of the trial, Kmart filed
several motions in limine to preclude McNamara from presenting certain evidence at trial.
Relevant to this appeal, Kmart argued that the testimony and reports of McNamara’s
experts Dr. Gary Jett, Susan McKenzie, and Robert Johnson should all be excluded under
Rules 702 and 403 of the Federal Rules of Evidence. Dr. Jett, a physiatrist, was offered
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by McNamara as a treating physician and a medical expert; McKenzie was offered as a
vocational rehabilitation expert; and Johnson was offered as an economic expert.
In a written order issued before the trial, the District Court denied Kmart’s motion
to exclude the testimony of Dr. Jett. At trial, however, the District Court ruled that Dr.
Jett could not testify about McNamara’s future needs for housekeeping and home
maintenance services and grab bars near his toilet and tub, explaining that there was no
adequate foundation in his report for such expenses. With regard to McKenzie and
Johnson, the District Court ruled in a separate written order that McKenzie was permitted
to “opine on the effects of the functional disabilities upon the occupational opportunities
of [McNamara],” but was not allowed to “opine on the cost of [McNamara’s] future
medical and psychological treatment” or “on amounts of [McNamara’s] future loss of
income and loss of capacity to earn income.” (App. at 221.) In the same order, the Court
granted Kmart’s motion to exclude the testimony and opinion of Johnson. The District
Court did not provide explanations for its rulings as to McKenzie and Johnson.
Two other evidentiary rulings are also at issue in this appeal. During the trial, the
District Court prevented McNamara from testifying that he only continued to work out of
economic necessity and also prevented him from entering his income tax returns and pay
stubs into evidence. The District Court did not explain the first ruling, but stated that the
tax returns and pay stubs would not be allowed into evidence because they were not
relevant to or probative of McNamara’s future earnings.
3
After the judgment in favor of McNamara was entered, he filed a timely notice of
appeal.
II. Discussion 1
On appeal, McNamara raises several challenges to the District Court’s evidentiary
rulings. First, McNamara complains that the Court abused its discretion when it
prevented Dr. Jett from testifying about McNamara’s future medical, home maintenance,
and home modification needs (“life-care needs”). Second, he argues that the Court
abused its discretion when it excluded McKenzie’s opinion and testimony about his future
life-care needs, future lost income, and loss of capacity to earn income. Third, he
contends that the Court abused its discretion by excluding the testimony and opinion of
Johnson. Fourth, he argues that the Court abused its discretion when it prohibited him
from testifying that he continued to work out of economic necessity. And fifth, he asserts
that the District Court abused its discretion when it excluded his tax returns and pay
stubs.2
We review a district court’s evidentiary rulings for abuse of discretion. McKenna
v. City of Philadelphia, 582 F.3d 447, 460 (3d Cir. 2009); Pineda v. Ford Motor Co., 520
F.3d 237, 243 (3d Cir. 2008). Here, Kmart filed motions in limine to have the opinions
1
The District Court exercised diversity jurisdiction pursuant to 28 U.S.C. § 1332. We
have jurisdiction pursuant to 28 U.S.C. § 1291.
2
By a Notice of Withdrawal dated February 22, 2010, McNamara withdrew all
arguments related to the District Court’s failure to conduct hearings pursuant to Daubert
v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
4
and testimony of Dr. Jett, McKenzie, and Johnson excluded under Rules 702 and 403 of
the Federal Rules of Evidence. Rule 702 permits expert testimony when “(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. We have observed that
“Rule 702 has three major requirements: (1) the proffered witness must be an expert, i.e.,
must be qualified; (2) the expert must testify about matters requiring scientific, technical
or specialized knowledge; and (3) the expert’s testimony must assist the trier of fact.”
Pineda, 520 F.3d at 244. “A trial judge acts as a gatekeeper to ensure that any and all
expert testimony or evidence is not only relevant, but also reliable.” Id. at 243 (internal
citations and quotations omitted).
For its part, Rule 403 allows a district court to exclude relevant evidence “if its
probative value is substantially outweighed by the danger of unfair prejudice, confusion
of the issues, or misleading the jury, or by considerations of undue delay, waste of time,
or needless presentation of cumulative evidence.” Fed. R. Evid. 403. “A trial judge’s
decision to admit or exclude evidence under [Rule 403] may not be reversed unless it is
arbitrary and irrational.” McKenna, 582 F.3d at 461 (internal citations and quotations
omitted).
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A. Dr. Jett’s Testimony As To McNamara’s Future Medical Needs And Future
Life-Care Needs
Although McNamara complains that the Court erred by excluding “all testimony
related to [his] future medical needs” (Appellant’s Br. 37), that contention is not
supported by the record. The District Court allowed Dr. Jett to testify about McNamara’s
future medical needs, including his future needs for physical therapy, physical therapy
evaluations, orthopedic evaluations, physiatrics evaluations, medication, and future
diagnostic testing. Dr. Jett provided testimony as to the approximate cost for each
treatment or evaluation and the frequency with which McNamara would need them.
Thus, Dr. Jett was permitted to testify about McNamara’s future medical needs, and we
see no error in the District Court’s decision.3
Second, McNamara argues that the District Court erred by excluding Dr. Jett’s
testimony regarding his future life-care needs. The District Court explained that it
refused to allow Dr. Jett to testify as to those future needs because there was no support in
his report for such expenses. In the report, Dr. Jett stated that McNamara would need a
3
In the argument sections of his briefs, McNamara does not specify which future
medical need the District Court erroneously excluded testimony on, but his opening brief
could be read to argue that the Court erred by excluding Dr. Jett’s testimony as to
McNamara’s future need for lumbar surgery. (Appellant’s Br. 7, 16.) If that is
McNamara’s argument, we see no abuse of discretion. First, McNamara has not
identified where in the record the District Court ruled that Dr. Jett could not testify about
McNamara’s need for lumbar surgery. Second, Dr. Jett referred McNamara to an
orthopedic surgeon, Dr. Chase, for evaluation, but McNamara apparently withdrew
Dr. Chase as a witness before trial and has not directed us to any reliable basis for Dr.
Jett’s determination that McNamara would require lumbar surgery in the future.
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housekeeper for four hours per week for the next ten years of his life, help with home
maintenance once a month for ten years, and the installation in his home of grab bars in
his tub and a raised toilet seat with grab bars. The report, however, does not state why
these expenses were necessary as a result of McNamara’s injuries. Although McNamara
argues that his own trial testimony established that these expenses were necessary, his
testimony does not obviate the requirement in Rule 702 that expert opinions be based on
sufficient facts. Thus, the District Court did not abuse its discretion by excluding the
evidence under Rule 702 based on its conclusion that the recommendations were not
adequately supported by Dr. Jett’s reported medical findings.
B. McKenzie’s Opinion And Testimony Regarding Future Life-Care Needs,
Future Loss Of Income, And Loss Of Capacity To Earn Income
McNamara argues that the District Court abused its discretion by limiting the
scope of McKenzie’s opinion and testimony with regard to McNamara’s future life-care
needs, future loss of income, and loss of capacity to earn income. The District Court
entered the order limiting McKenzie’s testimony after the parties fully briefed Kmart’s
motion in limine to exclude her opinion and testimony under Rules 702 and 403. In the
motion in limine, Kmart argued that McKenzie’s opinion with regard to McNamara’s
future medical and life-care needs was outside the scope of her expertise and that her
conclusions as to McNamara’s loss of income and loss of capacity to earn income would
not be useful to the jury. Although the District Court did not explain its reasons for
limiting McKenzie’s testimony to her opinion “on the effects of the functional disabilities
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upon the occupational opportunities of [McNamara],” we believe its reasoning is apparent
from the record.
First, McKenzie’s opinion and testimony as to McNamara’s future life-care needs
was properly excluded. That proposed testimony was based entirely on Dr. Jett’s report.
Because the District Court found that those aspects of Dr. Jett’s opinion were not based
on sufficient facts, McKenzie’s testimony on the same subjects was also necessarily
excluded.
The Court also acted within its discretion when it precluded McKenzie from
testifying to the “amounts of [McNamara’s] future loss of income and loss of capacity to
earn income.” (App. at 221.) Importantly, McKenzie’s report did not specify the amount
of McNamara’s future loss of income or otherwise quantify his loss of capacity to earn
income. Instead, McKenzie’s report stated that McNamara worked at a “sedentary office
job” and that “his job tasks fit within [his] physical limitations.” (App. at 101.) And,
although her report states that McNamara was concerned about his productivity, it does
not indicate that he was unable to perform his job as a result of the injuries. Furthermore,
McKenzie evaluated McNamara’s loss of income and work capacity and found that
“McNamara is not currently experiencing lost wages. He is currently working within his
physical restrictions and therefore, hopefully can remain in his high paying job with the
Government.” (App. at 102.) McKenzie’s report did not include any information about
other employment opportunities that might be available to someone with McNamara’s
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skills and limitations or about the relevant labor market. Because there was no basis in
her report for any opinion on the amounts, if any, of McNamara’s future loss of income
and loss of capacity to earn income, McKenzie’s testimony on those subjects was
properly excluded under Rule 702.
McNamara also argues that the District Court erred by excluding other evidence he
wanted to offer about his future loss of income and loss or impairment of earning
capacity. The record does not support such an argument. At trial, McNamara testified
that working caused him additional pain and that he was concerned about whether he
could continue to work and provide for his family. Dr. Jett testified that McNamara had
difficulty working because of the pain he experienced after sitting for lengthy periods of
time. McKenzie also testified as to McNamara’s physical limitations and the effect those
limitations would have on his labor opportunities. During her direct examination, she
was asked if McNamara’s “ability to get and obtain employment changed since the
accident[.]” (App. at 510.) She answered, “Yes. Definitely. When a person ... such as
McNamara has[] functional disabilities ... it basically affects their ability to be able to
walk out into the labor market and into another job that ... he might have been able to
perform prior to this injury.” Id. Thus, the record shows that McNamara was allowed to
present evidence as to his future loss of income and loss or impairment of earning
capacity, and, accordingly, we find no error.
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C. Johnson’s Expert Testimony And Opinion
Next, McNamara argues that the District Court abused its discretion by excluding
the opinion and testimony of Robert Johnson. Again, we disagree. Before the District
Court, Kmart argued that Johnson’s testimony should be excluded under Rule 403 as a
waste of time and under Rule 702 as unhelpful to the jury. In his report, Johnson summed
up McNamara’s future medical and non-medical expenses, as reported by McKenzie, and
calculated the present value of those expenses. The District Court did not err in
prohibiting McKenzie from testifying about McNamara’s future medical and non-medical
expenses.4 Because McKenzie was not permitted to testify about these expenses,
Johnson’s testimony, which was dependent on McKenzie’s, was also properly excluded.
D. Evidence That McNamara Worked Despite His Pain And Because of
Economic Necessity
McNamara also argues that the Court erred by excluding his testimony that he
continued to work while in pain out of economic necessity. Although the Court did not
explain its decision to exclude this testimony, we conclude that, if it were error, it would
certainly be harmless. See Great Am. Ins. Co. v. Norwin School Dist., 544 F.3d 229, 251
(3d Cir. 2008) (“An erroneous evidentiary ruling will be considered harmless if it is
highly probable that the district court’s [ruling] did not affect [the party’s] substantial
4
On appeal, McNamara does not challenge the portion of the District Court’s order
preventing McKenzie from testifying as to McNamara’s future medical needs. We think
it is clear that McKenzie, a vocational rehabilitation expert, was not qualified to opine as
to these needs.
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rights.” (internal citations and quotations omitted)). During the trial, McNamara was
permitted to testify that he frequently had to get up from his desk to relieve his pain and
that working exacerbated his back pain. In the context of his answers on the pain he
experienced during work, he was asked if he thought about “stopping work.” (App. at
349.) He answered, “If I could, I would.” Id. McNamara’s attorney further explained his
testimony during the closing, stating, “He’s got the whip of economic necessity. He
doesn’t have the money not to be able to work ... . [Y]ou heard him, if he had the ability
not to be able to work, he would stop, because of the pain.” (App. at 703.) Given
McNamara’s testimony and his counsel’s subsequent argument, a reasonable jury would
understand that McNamara continued to work in order to maintain his income. We find
no reversible error.
E. Tax Returns And Pay Stubs
Finally, McNamara argues that the District Court erred by preventing him from
introducing his tax records and pay stubs into evidence. Again, if this were error, it was
also harmless because the jury was repeatedly informed of McNamara’s salary during the
trial. First, McNamara testified at trial that he was making $70,500 per year on the date
of the incident at Kmart. Second, McKenzie also testified about the approximate amount
of McNamara’s salary at the time of the accident and at the time of trial. Third,
McNamara’s attorney informed the jury during her closing argument of the amount of
McNamara’s salary at the time of trial. Thus, the jury was fully aware of the amount of
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McNamara’s income, and McNamara was not harmed by the District Court’s decision to
exclude this evidence.
III. Conclusion
Finding no error in the District Court’s evidentiary decisions, we will affirm the
order of the District Court.
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