United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 09-3454
___________
Robert Brooks, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Union Pacific Railroad Company, *
*
Appellee. *
___________
Submitted: June 15, 2010
Filed: September 3, 2010
___________
Before MELLOY, HANSEN, and SMITH, Circuit Judges.
___________
SMITH, Circuit Judge.
Robert Brooks sued Union Pacific Railroad Company ("Union Pacific") under
the Federal Employer's Liability Act (FELA), 45 U.S.C. § 51 et seq., to recover
damages for a back injury that he allegedly suffered while working as a machinist at
Union Pacific's locomotive repair shop in North Little Rock, Arkansas. Brooks alleged
that his injury resulted from acute trauma to his back. Union Pacific moved for
summary judgment. After providing Brooks with two opportunities to properly
respond to Union Pacific's motion, the district court1 found that Brooks failed to
1
The Honorable William R. Wilson, United States District Judge for the Eastern
District of Arkansas.
produce admissible evidence of causation, negligence, or foreseeability—the essential
elements of a FELA action—and granted the motion for summary judgment. Brooks
appeals, arguing that the district court (1) abused its discretion in not considering his
treating physician's statement that Brooks's injury resulted from his employment with
Union Pacific and (2) erred in concluding that Brooks did not provide evidence of
negligence or foreseeability. We disagree and affirm.
I. Background
Union Pacific employed Brooks as a machinist for approximately ten years. On
November 11, 2006, Brooks allegedly suffered an acute, traumatic lower back injury
while working underneath a locomotive at an area of the Union Pacific yard known
as the "drop table." Brooks sought medical treatment. Dr. Butchala Garlapati and other
physicians diagnosed Brooks as having degenerative disc disease without evidence of
neurological injury, disc herniation, or other abnormality. Brooks underwent two
separate surgeries for the placement of a spinal cord stimulator to improve his
condition.
Brooks filed a FELA claim seeking damages for this back injury. Brooks
alleged that working on Union Pacific's locomotives activated, accelerated, and
aggravated his back injury by cumulative and acute trauma. He also alleged that Union
Pacific's negligence caused his back injury. Brooks later filed a motion to voluntarily
dismiss his cumulative-trauma claim. The district court entered an order granting the
motion and noting that Brooks was not dismissing the acute-trauma portion of his
claim.
In interrogatories, Union Pacific asked Brooks to disclose anticipated retained
or non-retained expert witnesses at trial. Brooks responded that his experts were
unknown and that his answer would be supplemented at a later date. Brooks never
supplemented his answer to the interrogatory.
-2-
Brooks did disclose the name, address, and phone number of each of his
treating physicians—including Dr. Garlapati—in discovery responses. Brooks also
supplied copies of his medical records and authorizations to obtain his medical
records. During discovery, Union Pacific listed as its witnesses the "Plaintiff's
Treating Physicians" who were expected to testify on the subject of the "Plaintiff's
alleged injuries and damages." Brooks also listed his treating physicians as witnesses.
Union Pacific did not depose any of Brooks's treating physicians.
Union Pacific's attorneys deposed Brooks. In his deposition, Brooks again
stated that he injured his back working with heavy equipment in cramped and
confined spaces while he was working underneath a locomotive. Brooks further stated
that his back was not injured when he began his shift and that he noticed that he had
significant back pain as he was climbing out from underneath the locomotive.
The district court entered a final scheduling order that required the parties to
disclose their expert witnesses and expert reports under Federal Rule of Civil
Procedure Rule 26(a)(2) by April 27, 2009. On that date, Union Pacific designated Dr.
Earl Peeples as an expert witness and provided Dr. Peeples's expert report. Brooks did
not disclose any expert witnesses or provide any expert reports. Union Pacific then
filed a motion for summary judgment, arguing that Brooks could not prove causation,
negligence, or foreseeability. In support of its motion, Union Pacific attached Dr.
Peeples's expert report. Dr. Peeples stated in his report that he found that Brooks had
no specific injury or trauma which correlated with his employment at Union Pacific.
In opposition to Union Pacific's motion for summary judgment, Brooks
provided affidavits from his treating physician and coworkers. Dr. Garlapati stated in
his affidavit that Brooks told him that he had been injured at work; Dr. Garlapati
further stated in the same affidavit that it was his medical opinion that Brooks's work
for Union Pacific "caused or contributed to [his] injury and subsequent surgeries."
Brooks's coworker, John Dangerfield, stated in his affidavit that he was working with
-3-
Brooks on the night of the injury; both Dangerfield and Brooks had complained to
their supervisors about the dangerous working conditions that they were subjected to
without relief or resolution from the Union Pacific; and he was aware of other injuries
that occurred at the same work station where he and Brooks worked.
The district court convened a telephone conference regarding Union Pacific's
motion for summary judgment. During this teleconference, the court observed that
Brooks had not designated an expert witness or provided an expert report to rebut
Union Pacific's expert report. The court entered an order allowing Brooks additional
time in which to submit a response to Union Pacific's motion that complied with the
Federal Rules of Civil Procedure and warned that Union Pacific's motion would be
granted if Brooks did not comply with the Federal Rules.2
Brooks submitted an amended response, with an additional paragraph and
added citations, but again did not designate Dr. Garlapati as an expert or submit an
expert report. The district court then granted Union Pacific's motion for summary
judgment, finding that Brooks's response did not provide evidence of causation,
negligence, or foreseeability.
II. Discussion
On appeal, Brooks argues that the district court (1) abused its discretion in not
considering Dr. Garlapati's statement that Brooks's injury resulted from his
2
Specifically, the district court stated in its order that
Plaintiff's counsel is given to . . . August 10, 2009, to get his Response
two-blocked. If the requirements of these rules are not met by this
deadline, Defendant's Motion for Summary Judgment will be granted. If
the requirements are met, I will consider the issues and decide whether
the motion should be granted.
-4-
employment with Union Pacific and (2) erred in concluding that Brooks did not
provide evidence of negligence or foreseeability.
Brooks first argues that Dr. Garlapati's medical opinion that Brooks's injury
resulted from his employment with Union Pacific should have been considered along
with Brooks's response to Union Pacific's motion for summary judgment. Brooks
contends that a treating physician is not considered an expert if his opinions are based
on observations made during his treatment of a patient rather than reviewing a
patient's records. Alternatively, if Dr. Garlapati is considered an expert, Brooks argues
that Dr. Garlapati is not a "retained" expert and thus not required to give a report.
Union Pacific responds that Brooks was required to disclose Dr. Garlapati as
an expert witness and submit a written report per Rule 26(a)(2) and the district court's
final scheduling order despite Dr. Garlapati's status as one of Brooks's treating
physicians. Union Pacific maintains that the fact that Brooks did not retain Dr.
Garlapati as a retained expert did not excuse the non-compliance with Rule 26(a)(2)
because Dr. Garlapati's causation opinion fell within the purview of Federal Rule of
Evidence 702.
"This court has held that a district court may exclude from evidence at trial any
matter which was not properly disclosed in compliance with the court's pretrial orders,
and such a ruling will be reversed on appeal only for abuse of discretion." Iowa-Mo
Enter., Inc. v. Avren, 639 F.2d 443, 447 (8th Cir. 1981). We therefore review the
district court's exclusion of expert testimony for abuse of discretion. Jaurequi v.
Carter Mfg. Co., Inc., 173 F.3d 1076, 1081 (8th Cir. 1999). We review the district
court's grant of summary judgment in favor of Union Pacific de novo, applying the
same standards as the district court. Francisco v. Burlington N. R.R. Co., 204 F.3d
787, 789 (8th Cir. 2000). In response to the movant's showing, the nonmoving party's
burden is to produce specific facts demonstrating "a genuine issue of material fact
-5-
such that [his] claim should proceed to trial." Nitro Distrib., Inc. v. Alitcor, Inc., 565
F.3d 417, 422 (8th Cir. 2009) (internal quotations and citation omitted).
Brooks's complaint stated that he suffered an acute injury at work. Brooks,
however, did not point to a specific incident that injured him. Union Pacific presented
a report from Dr. Peeples stating his opinion that Brooks's work at Union Pacific did
not cause the injury in question. In order to avoid summary judgment, Brooks was
required to produce admissible evidence that Union Pacific's negligence played a part
in causing his alleged injury. Fletcher v. Union Pac. R.R. Co., 621 F.2d 902, 909 (8th
Cir. 1980) ("The test of causation under the FELA is whether the railroad's negligence
played any part, however small, in the injury which is the subject of the suit."). In
FELA cases, "[e]xpert evidence is often required to establish the causal connection
between the accident and some item of physical or mental injury unless the connection
is a kind that would be obvious to laymen, such as a broken leg from being struck by
an automobile." Moody v. Maine Cent. R.R. Co., 823 F.2d 693, 695 (1st Cir. 1987).
Because the type of injury Brooks suffered had no obvious origin, "expert testimony
is necessary to establish even that small quantum of causation required by FELA."
Claar v. Burlington N. R.R. Co., 29 F.3d 499, 504 (9th Cir. 1994).
Although expert testimony was required, Brooks failed to serve Union Pacific
with any expert disclosures as required by Rule 26(a)(2)3 and the district court's final
3
Rule 26(a)(2)(A)–(C) provides:
(A) In General. In addition to the disclosures required by Rule 26(a)(1),
a party must disclose to the other parties the identity of any witness it
may use at trial to present evidence under Federal Rule of Evidence 702
....
(B) Written Report. Unless otherwise stipulated or ordered by the court,
this disclosure must be accompanied by a written report—prepared and
signed by the witness—if the witness is one retained or specially
-6-
scheduling order. Brooks argues that the district court should have received Dr.
Garlapati's affidavit and causation opinion regardless of any expert disclosures
because Dr. Garlapati was his treating physician. Brooks asserts that Dr. Garlapati
may testify from his personal experience in treating Brooks without being considered
an expert witness, citing Davoll v. Webb, 194 F.3d 1116 (10th Cir. 1999). Davoll is
a disability discrimination case in which a treating physician explained the plaintiff's
injuries but did not testify concerning causation because causation was not an issue.
194 F.3d at 1138–39. Davoll holds that a treating physician may testify as a lay
witness when describing a medical condition. Id. at 1139. Brooks sought to use Dr.
employed to provide expert testimony in the case or one whose duties as
the party's employee regularly involve giving expert testimony. The
report must contain:
(i) a complete statement of all opinions the witness will
express and the basis and reasons for them;
(ii) the data or other information considered by the witness
in forming them;
(iii) any exhibits that will be used to summarize or support
them;
(iv) the witness's qualifications, including a list of all
publications authored in the previous 10 years;
(v) a list of all other cases in which, during the previous
four years, the witness testified as an expert at trial or by
deposition; and
(vi) a statement of the compensation to be paid for the
study and testimony in the case.
(C) Time to Disclose Expert Testimony. A party must make these
disclosures at the times and in the sequence that the court orders.
-7-
Garlapati not merely to explain Brooks's medical condition—he also sought to use Dr.
Garlapati to explain causation of Brooks's condition.
"A treating physician's expert opinion on causation is subject to the same
standards of scientific reliability that govern the expert opinions of physicians hired
solely for purposes of litigation." Turner v. Iowa Fire Equip. Co., 229 F.3d 1202,
1207 (8th Cir. 2000) (affirming the district court's decision to strike the treating
physician's opinion and to grant summary judgment in favor of the defendants due to
the lack of evidence of causation); see also Bland v. Verizon Wireless, (VAW) L.L.C.,
538 F.3d 893, 899 (8th Cir. 2008) (affirming summary judgment following the
exclusion of a treating physician's causation opinion); Claar, 29 F.3d at 504 (holding
that, in order to avoid summary judgment, the plaintiffs in a FELA action were
required to produce expert testimony that exposure to chemicals played a part in
causing their injuries). We hold that Dr. Garlapati's causation opinion brought his
testimony within Rule 7024 and Rule 26(a)(2).
Because Brooks failed to comply with the requirements of Rule 26(a)(2), the
district court properly excluded Dr. Garlapati's causation opinion. Without this expert
opinion to refute Union Pacific's expert causation evidence, the district court correctly
found that there were no genuine fact disputes regarding whether Union Pacific
4
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.
-8-
caused Brooks's injury, an essential element under FELA. We affirm the grant of
Union Pacific's summary judgment motion.5
III. Conclusion
Accordingly, we affirm the decision of the district court.
______________________________
5
Because we hold that Brooks did not provide any disputed fact as to whether
Union Pacific caused his back injury—one of the necessary elements of a FELA
action—we need not consider Brooks's arguments that Union Pacific acted with
negligence and that his injury was foreseeable.
-9-