F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUN 12 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
RICHARD W. GOEBEL,
Plaintiff - Appellee,
vs. No. 99-1143
DENVER AND RIO GRANDE
WESTERN RAILROAD COMPANY,
a Delaware corporation,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 94-N-2206)
Steven M. Weisbaum (and Lawrence M. Mann, Alper, Mann & Weisbaum,
Washington, D.C. and Christopher B. Little, Montgomery, Little & McGrew,
Englewood, Colorado, with him on the briefs), for Plaintiff - Appellee
James W. Erwin (and Thomas R. Jayne, Thompson, Coburn, St. Louis, Missouri,
and Steven E. Napper, Union Pacific Railroad Co., Denver, Colorado, with him
on the briefs), for Defendant - Appellant.
Before BALDOCK, KELLY, and BRISCOE, Circuit Judges.
KELLY, Circuit Judge.
This case requires us to explore the gatekeeper function of the district
court in determining the admissibility of expert witnesses under Daubert v.
Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579 (1993). Appellant Denver and
Rio Grande Western Railroad Company (hereinafter “Railroad”) argues that the
district court erred in admitting the testimony of Dr. Daniel T. Teitelbaum, which
purported to establish a causal link between Appellee Richard Goebel’s cognitive
brain damage and exposure to diesel exhaust at high altitude. We reverse and
remand for a new trial.
Background
At the time of the incident giving rise to this case, Mr. Goebel was
employed by the Railroad as a locomotive engineer. On January 5, 1994, he was
instructed to operate two “helper” locomotives to help push a 5,900 foot long,
nine locomotive train through the Moffat Tunnel (“Tunnel”) in Colorado. The
Moffat Tunnel is 6.21 miles long and runs over the continental divide. At the
West Portal, the Tunnel is 9,084 feet above sea level, rises to 9,239 feet at its
apex, and then drops to 9,198 feet at the East Portal. The Tunnel is equipped
with an automatic ventilation system designed to clear the diesel fumes and
exhaust which accumulate with the passage of each train. There are also twenty-
one numbered “refuges” in the tunnel – spaces where the walls have been
widened to hold barrels containing emergency breathing equipment.
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Mr. Goebel’s helper units met up with the train late on the night of January
5 and were attached as the rear locomotives to assist in pushing through the
Tunnel. Mr. Goebel was accompanied by Matthew Fletcher, a fireman/engineer.
The train entered the Tunnel through the West Portal shortly after 1:00 a.m. on
January 6, with all nine locomotives running full throttle in order to make it up
the hill to the apex of the tunnel. At approximately 1:15 a.m., the train suddenly
broke in half, the emergency brakes automatically applied, and the train came to a
stop in the Tunnel.
Upon coming to a standstill, Mr. Goebel took a portable radio and left the
cab to inspect the “helper” locomotives. The air in the tunnel was dark and
smoky, but Mr. Goebel was able to determine that the locomotives were properly
running in idle. He also noticed that the rear of the train had stopped near
Refuge 5. Mr. Goebel went to the refuge to get the emergency breathing
equipment, but was unable to get the barrel open. He returned to the locomotive
cab after being outside between five to fifteen minutes. Mr. Goebel testified that
by the time he returned to the locomotive he had a headache, tightness in his
chest and nausea.
Meanwhile, Mr. Fletcher had been on the radio, attempting to determine
the nature of the problem. After a few minutes of discussion, Mr. Goebel left the
cab again to get breathing equipment from the refuge. This time he managed to
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get the barrel open and returned to the locomotive with two Type “N” air
respirators. On returning to the locomotive for the second time, Mr. Goebel said
that his body was sore, his chest was tight and he was so disoriented that he
could not read the instructions on the respirators. After donning the respirator,
he went outside a third time in order to start one of the locomotives which had
shut down. He then returned to the cab, the train started, and finally reached the
East Portal around 2:07 a.m., almost one hour after entering the tunnel.
Both Mr. Goebel and Mr. Fletcher did not feel well enough to continue.
They dropped off their helper locomotives at Rollins, Colorado and were picked
up by an ambulance around 2:50 a.m. and placed on pure oxygen. They remained
on oxygen until arriving at Lutheran Medical Center at 4:30 a.m. Blood tests for
carbon monoxide poisoning conducted on both men around 5:07 a.m. revealed
normal carboxyhemoglobin levels. Mr. Goebel and Mr. Fletcher were released
that morning and instructed to return in 24 hours for a follow-up.
Mr. Fletcher received no further treatment and returned to work. Mr.
Goebel, however, continued to complain of dizziness, headache, abdominal pain,
and disorientation as a result of the incident. He was referred by his personal
doctor to Dr. Teitelbaum, a medical doctor specializing in toxicology, on
February 8, 1994. Dr. Teitelbaum reviewed Goebel’s medical history – including
the blood tests done at Lutheran Medical Center – and conducted a traditional
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physical examination. Based upon this examination, Dr. Teitelbaum wrote Mr.
Goebel a May 24, 1994 letter explaining his findings: “My diagnosis is acute
combustion products intoxication with a neuropsychological and neurological
syndrome possible . . . .” Aplt. App. at 53.
When Mr. Goebel expressed concerns about his memory, Dr. Teitelbaum
referred him to Dr. Frederick Kadushin, a neuropsychologist, for further testing.
Dr. Kadushin determined that plaintiff had suffered cognitive deficits. This
conclusion was reinforced by a speech pathologist who also confirmed that Mr.
Goebel had cognitive deficits, probably from a mild brain injury. Mr. Goebel
also was examined by a clinical psychologist who determined that plaintiff was
suffering from severe depression and post traumatic stress disorder.
Mr. Goebel brought suit against the Railroad under the Federal Employer’s
Liability Act, the Safety Appliances Act, and the Occupational Safety and Health
Act, alleging that his personal injuries resulted from the Tunnel accident. 1
The
district court granted summary judgment to plaintiff on the question of liability,
limiting the trial to issues of causation and damages. At trial, Dr. Teitelbaum
testified as to the causation of plaintiff’s injuries.
1
This was Count II of plaintiff’s complaint. Count I involved an injury to
plaintiff’s back which occurred during a railroad switch throwing incident. That
claim was tried to the jury, which returned a verdict in favor of the Railroad. Mr.
Goebel does not challenge that verdict, and we deal solely with Count II on
appeal.
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I believe that the cause of Mr. Goebel’s injury
was his exposure to a unique environment, deficient in
oxygen at low barometric pressure, contaminated with
pulmonary irritants, which combined with the unique
physiologic setting which takes place at high altitude
produced an oxygen lack syndrome, which produced
swelling in his brain, called cerebral edema, which
resulted in small diffuse pressure injuries which resulted
in his cognitive defect.
It’s a complicated chain of events, but one which
is relatively simple to explain on the basis of the
fundamental physiology. All of these pieces have been
looked at in separate events. In this gentleman, they
occurred at the same time and produced this result.
2 R. at 386. The jury found in favor of Mr. Goebel and awarded him $755,000 in
damages for lost wages, pain and suffering, and loss of enjoyment of life. The
district court denied the Railroad’s motion for judgment as a matter of law, and
this appeal followed.
Procedural Context
The Railroad argues that the district court improperly admitted Dr.
Teitelbaum’s testimony, which it characterizes as “junk science relying solely
upon the ipse dixit of the expert.” Aplt. Br. at 20. Defendant raised this issue on
three separate occasions before the trial court. First, the Railroad brought a
motion in limine seeking to exclude the testimony as unscientific and based
solely upon possibilities. On the morning of trial, the district court orally denied
this motion. We have no record of the district court’s decision; the court minutes
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indicate that no court reporter was present at the time the motion was denied.
See Aplt. App. at 7; D. Ct. doc. 77 (noting denial of motion in limine). Second,
when Dr. Teitelbaum was called during trial, defense counsel conducted voir dire
and objected, “on the basis of Daubert .” 2 R. at 371. The trial court overruled
the objection, simply stating: “I believe there is sufficient foundation here for the
jury to hear this testimony.” 2 R. at 379.
Finally, the Railroad argued in a post-trial motion for judgment as a matter
of law that Teitelbaum’s testimony should be stricken. This would consequently
make judgment for defendant appropriate because “[t]he only evidence of a
medical and scientific connection between the diesel fumes and Plaintiff’s
condition was the testimony of Dr. Daniel T. Teitelbaum.” Aplt. App. at 179.
The district court denied this motion in summary fashion. “The motion seeks to
re-litigate an evidentiary issue concerning the qualifications of plaintiff’s primary
expert witness. The issue was raised by motion in limine, and the court fully
considered the matter when it denied that motion.” Id. at 310.
Daubert Analysis
Daubert changed the law of evidence by establishing a “gatekeeper”
function for trial judges under Federal Rule of Evidence 702. “Faced with a
proffer of expert scientific testimony, then, the trial judge must determine at the
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outset . . . whether the expert is proposing to testify to (1) scientific knowledge
that (2) will assist the trier of fact to understand or determine a fact in issue.”
Daubert , 509 U.S. at 592. This gatekeeper function requires the judge to assess
the reasoning and methodology underlying the expert’s opinion, and determine
whether it is scientifically valid and applicable to a particular set of facts. See id.
We review de novo the question of whether the district court applied the proper
legal test in admitting Dr. Teitelbaum’s testimony, see Borawick v. Shay , 68 F.3d
597, 601 (2d Cir. 1995), and review the district court’s decision to admit the
testimony under an abuse of discretion standard, see General Elec. Co. v. Joiner ,
118 S. Ct. 512, 515 (1997).
It is within the discretion of the trial court to determine how to perform its
gatekeeping function under Daubert . See Kumho Tire Co., Ltd. v. Carmichael ,
119 S. Ct. 1167, 1176 (1999) (“The trial court must have [discretionary] latitude
in deciding how to test an expert’s reliability, and to decide whether or when
special briefing or other proceedings are needed to investigate reliability . . . .”).
The most common method for fulfilling this function is a Daubert hearing,
although such a process is not specifically mandated. See Hynes v. Energy West,
Inc. , No. 98-8023, 2000 WL 525961, at *9 (10th Cir. May 2, 2000) (district court
held hearing); see also United States v. Charley , 189 F.3d 1251, 1266 (10th Cir.
1999) (district court granted great latitude in “deciding whether to hold a formal
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hearing.”); United States v. Call , 129 F.3d 1402, 1405 (10th Cir. 1997) (noting
that Daubert does not require a hearing). The district court may also satisfy its
gatekeeper role when asked to rule on a motion in limine, on an objection during
trial, or on a post-trial motion so long as the court has sufficient evidence to
perform “the task of ensuring that an expert’s testimony both rests on a reliable
foundation and is relevant to the task at hand.” Daubert , 509 U.S. at 597.
While the district court has discretion in the manner in which it conducts
its Daubert analysis, there is no discretion regarding the actual performance of
the gatekeeper function. See Kumho Tire , 119 S. Ct. at 1179 (Scalia, J.,
concurring) (noting that the majority opinion “makes clear that the discretion it
endorses – trial-court discretion in choosing the manner of testing expert
reliability – is not discretion to abandon the gatekeeping function.”); see also
United States v. Velarde , No. 99-2297, prop. op. at 12 (10th Cir. May 22, 2000)
(Anderson, J.). For purposes of appellate review, a natural requirement of this
function is the creation of “‘a sufficiently developed record in order to allow a
determination of whether the district court properly applied the relevant law.’”
United States v. Nichols , 169 F.3d 1255, 1262 (10th Cir. 1999) (quoting Call ,
129 F.3d at 1405). See also Velarde , No. 99-2297, prop. op. at 12 (10th Cir.
2000) (noting that “the court must, on the record, make some kind of reliability
determination.”); Dodge v. Cotter Corp. , 203 F.3d 1190, 1200 n.12 (10th Cir.
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2000) (urging the district court to “vigilantly make detailed findings to fulfill the
gatekeeper role crafted in Daubert ”); United States v. Lee , 25 F.3d 997, 999
(11th Cir. 1994) (encouraging district courts “to make specific fact findings
concerning their application of Rule 702 and Daubert ”). Without specific
findings or discussion on the record, it is impossible on appeal to determine
whether the district court “‘carefully and meticulously’ review[ed] the proffered
scientific evidence” or simply made an off-the-cuff decision to admit the expert
testimony. Call , 129 F.3d at 1405 (citation omitted).
A review of this case convinces us of the absolute necessity of district
court findings on the record. There is not a single explicit statement on the
record to indicate that the district court ever conducted any form of Daubert
analysis whatsoever. The motion in limine was denied with no record of
explanation; the objection at trial was overruled on the single statement that there
was “sufficient foundation” for the testimony to go to the jury; and the post-trial
motion for judgment as a matter of law was denied on the basis of the previous
denial of the motion in limine. While we recognize that the trial court stated that
it had “fully considered the matter when it denied [the motion in limine],” this
single statement is insufficient as a basis for appellate review. We are unable to
discern whether the court was referring to the professional credentials of the
witness as opposed to assessing the reasoning and methodology relied upon by
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the witness. It is axiomatic that an expert, no matter how good his credentials, is
not permitted to speculate. See DePaepe v. General Motors Corp. , 141 F.3d 715,
720 (7th Cir. 1998).
Our holding recognizes that the district court need not “recite the Daubert
standard as though it were some magical incantation,” Ancho v. Pentek Corp. ,
157 F.3d 512, 518 (7th Cir. 1998), or apply all of the reliability factors suggested
in Daubert and Kumho . The gatekeeper inquiry under Rule 702 is ultimately a
flexible determination. Kumho Tire , 119 S. Ct. at 1175. But we specifically
hold that a district court, when faced with a party’s objection, must adequately
demonstrate by specific findings on the record that it has performed its duty as
gatekeeper. 2
Here, the trial court did not have the benefit of Kumho , but was
specifically alerted to the need for findings given the objections on the record. In
2
If there is no objection to the expert testimony, the opposing party waives
appellate review absent plain error. See Marbled Murrelet v. Babbitt, 83 F.3d
1060, 1066 (9th Cir. 1996); see also Christopher v. Cutter Labs., 53 F.3d 1184,
1192 (11th Cir. 1995); McKnight v. Johnson Controls, Inc., 36 F.3d 1396, 1407
(8th Cir. 1994). But see Padillas v. Stork-Gamco, Inc., 186 F.3d 412, 417-18 (3d
Cir. 1999) (holding that, in the context of a summary judgment motion, failure to
hold in limine hearing to decide disputed questions of fact related to expert
report, even when hearing was not requested, was abuse of discretion). When no
objection is raised, district courts are not required to make “explicit on-the-record
rulings” and, “we assume that the district court consistently and continually
performed a trustworthiness analysis sub silentio of all evidence introduced at
trial.” Hoult v. Hoult, 57 F.3d 1, 5 (1st Cir. 1995).
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the absence of such findings, we must conclude that the court abused its
discretion in admitting such testimony. See Velarde , slip op. at 15. Performance
of the gatekeeping function on the record insures that a judgment in favor of
either party factors in the need for reliable and relevant scientific evidence. It is
not an empty exercise; appellate courts are not well-suited to exercising the
discretion reserved to district courts.
There remains the question of the appropriate remedy. Several of our
recent cases have considered a trial court’s failure to make Daubert findings. In
Velarde , we reversed and remanded for a new trial because the district court was
specifically alerted to the need for such findings after Daubert and Kumho and
declined to make them. See Velarde , slip op. at 12. In Kinser , we undertook a
Daubert analysis based upon the whole record, relying upon a Fifth Circuit case
indicating that the failure to make findings may be harmless error where the
appellate court can perform a Daubert analysis on the pleadings. See Kinser , 184
F.3d at 1271(citing Tanner v. Westbrook , 174 F.3d 542 (5th Cir. 1999)). In
Charley , the panel majority determined that the need for reliability determinations
had largely been waived, 189 F.3d at 1264 n.11, but stated: “Even though the
trial court in this case did not have the benefit of Kumho Tire’s direction [and its
abrogation of Compton v. Subaru of America, Inc. , 82 F.3d 1513 (10th Cir.
1996)], its evidentiary decisions do not warrant reversal if it determined, in some
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apparent manner, that the expert testimony was reliable.” Charley , 189 F.3d at
1261.
Mr. Goebel asks us to hold that the admission of Dr. Teitelbaum’s
testimony was harmless error. See Kinser v. Gehl Co. , 184 F.3d 1259, 1271
(10th Cir. 1997) (holding that improper admission of expert testimony was
harmless). We decline to do so. “Erroneous admission of evidence is harmless
only if other competent evidence is ‘sufficiently strong’ to permit the conclusion
that the improper evidence had no effect on the decision.” Lillie v. United
States , 953 F.2d 1188, 1192 (10th Cir. 1992). Mr. Goebel argues that there was
sufficient uncontroverted evidence of psychological injuries and post-traumatic
stress disorder to uphold the judgment, regardless of the admissibility of
Teitelbaum’s testimony. Aplee. Br. at 52. However, as the Railroad points out,
evidence of psychological injury does not account for Mr. Goebel’s claims of
physical injury, particularly organic brain damage. Dr. Teitelbaum’s testimony
was a large part of plaintiff’s case because it helped to establish the medical
causal link between the incident in the Moffat Tunnel and the alleged permanent
brain injury. We are unable to say that Dr. Teitelbaum’s testimony had no effect
on the decision of the jury in awarding damages for pain and suffering, and loss
of enjoyment of life, and therefore remand for a new trial. We express no
opinion on whether Dr. Teitelbaum’s testimony was admissible under Daubert
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and Kumho .
Our remand in this case is limited. Mr. Goebel did not appeal the jury
verdict as to Count I of his complaint (back injury from throwing railroad
switches), and because Dr. Teitelbaum’s testimony did not relate to that claim,
remand is not necessary. Moreover, the district court’s grant of partial summary
judgment to Mr. Goebel regarding liability occurred before the decision on the
Railroad’s motion in limine, and we do not disturb that ruling.
REVERSED and REMANDED for a new trial in conformity with this
opinion.
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