In the
United States Court of Appeals
For the Seventh Circuit
No. 07-2264
H EIDI H APPEL and K ENT H APPEL,
Plaintiffs-Appellants,
v.
W ALMART S TORES, INC.,
a Delaware corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 C 7771—James B. Moran, Judge.
A RGUED S EPTEMBER 9, 2008—D ECIDED A PRIL 19, 2010
Before F LAUM, W ILLIAMS, and S YKES, Circuit Judges.
W ILLIAMS, Circuit Judge. Heidi Happel was diagnosed
with Multiple Sclerosis in 1990. After the diagnosis, she
did not experience any symptoms of the disease until
August 1993, when a Walmart pharmacy negligently
filled—and Heidi ingested—a prescription with Toradol,
a medication to which Heidi was allergic. Heidi believed
that the medication, which triggered a severe reaction,
was the impetus for a rapid decline in her health,
2 No. 07-2264
so she and her husband, Kent, sued Walmart. After an
eight-day trial, a jury awarded the Happels $465,400
in compensatory damages. But the plaintiffs argue here
that the trial court made two significant errors that
reduced the total damage award. First, they contend that
the trial court should have allowed them to present
expert witness testimony to demonstrate that the
allergic reaction to the prescription drugs exacerbated
Heidi’s condition. Second, the court should not have
used a verdict form that allowed the jury to combine
damages for Heidi and Kent rather than providing
for separate awards. We agree with the trial court’s
decision to exclude the testimony of the plaintiffs’ experts
because the plaintiffs failed to properly disclose one in
violation of Federal Rule of Civil Procedure 26 and the
other’s expertise and methodology did not comply with
the Daubert standard. As to damages, we reverse and
remand for a new trial so that the Happels can seek
separate damage awards.
I. BACKGROUND
Heidi Happel experienced the first symptoms of
Multiple Sclerosis (“MS”) in 1984. At the time, a teenage
Heidi lost some of the vision in her left eye, for which
she received treatment from Dr. Peter Bringewald, a
neurologist specializing in optic neurology. Heidi con-
tinued to develop more MS symptoms over the years. In
1986, she suffered from numbness and fine motor prob-
lems, in 1987, tingling in her legs, and in 1990, depres-
sion. Although Dr. Bringewald ultimately diagnosed
Heidi with MS, between 1990 and 1993 she did not experi-
No. 07-2264 3
ence any MS symptoms other than a lingering asthma
condition.
On August 4, 1993, Heidi’s primary care physician
prescribed Toradol, an anti-inflammatory pain reliever,
to Heidi for her menstrual cramps.1 He called the pre-
scription in to the Walmart pharmacy in McHenry
County, Illinois, where Heidi usually filled prescriptions
for her asthma medication. Heidi was allergic to non-
steroidal anti-inflammatory drugs (“NSAIDs”), and it
was her practice to notify the pharmacist of this allergy
every time she had a prescription filled. On this par-
ticular day, however, Heidi was unable to go to the
pharmacy, so she asked her husband, Kent Happel, to
pick up the Toradol prescription. Before Kent arrived,
however, the pharmacist had already been warned
about Heidi’s allergy to NSAIDs—in the process of input-
ting the prescription into Walmart’s computer system
(which warns pharmacists of drug interactions by a
flashing screen), the pharmacist had received an elec-
tronic alert that Toradol was contraindicated.2 When
1
The Happels’ initial suit also asserted professional negligence
claims against Heidi’s primary care physician, Dr. Z. Ted
Lorenc, for prescribing Toradol. In March 1999, Dr. Lorenc
settled out of court with Heidi and Kent for $75,000 each, and
he was dismissed from the lawsuit.
2
The American Medical Association defines “contraindication”
as “[a] factor in a person’s condition that makes it inadvisable
to participate in a particular treatment, such as taking a
certain medication or undergoing surgery.” A MERICAN
(continued...)
4 No. 07-2264
Kent arrived, he also informed the pharmacist of Heidi’s
allergy.
Despite these warnings, the pharmacist filled Heidi’s
Toradol prescription. After Heidi ingested the drug,
she went into anaphylactic shock. She was rushed to
Northern Illinois Medical Center, where she was
intubated for 18 hours and placed on a ventilator. Al-
though she was released from the hospital the next day,
her health quickly began to deteriorate. She has suffered
memory loss, seizures, incontinence, depression, night-
mares, difficulty walking, and lack of sexual interest.
The Happels sued Walmart in Illinois state court. After
protracted proceedings, the Illinois Supreme Court
held that Walmart owed a duty to warn Heidi or
her physician when presented with a contraindicated
prescription. See Happel v. Walmart Stores, Inc., 766 N.E.2d
1118 (Ill. 2002). Heidi and Kent voluntarily dismissed the
lawsuit and re-filed in the Circuit Court of Cook County.
Walmart then removed the case to federal court on the
basis of diversity jurisdiction. Heidi alleged negligence,
battery, and wilful and wanton misconduct, and Kent
asserted a loss of society claim. Walmart conceded negli-
gence in filling Heidi’s Toradol prescription.
Before trial, the Happels filed initial and amended
disclosures pursuant to Federal Rule of Civil Procedure
26. In both disclosures, they listed Dr. Bringewald under
2
(...continued)
M EDICAL A SSOCIATION C OMPLETE M EDICAL E NCYCLOPEDIA 404
(Jerrold B. Leikin & Martin S. Lipsky eds., 2003).
No. 07-2264 5
subsection (a)(1) as a person with discoverable informa-
tion, but did not disclose him as an expert or tender
his expert report which is required by subsection (a)(2).
Less than two months before trial, the Happels at-
tempted to list Dr. Bringewald as an expert witness in
their pre-trial order, seeking to elicit testimony that
psychological stress from the Toradol incident exacer-
bated Heidi’s MS. Walmart filed a motion in limine to
exclude Dr. Bringewald’s proffered expert testimony,
arguing that he had not been properly disclosed and
that his opinion was not reliable under Daubert v.
Merrill Dow Pharmaceuticals, 509 U.S. 579 (1993). The dis-
trict court granted Walmart’s motion, stating that
“[p]laintiffs’ attempt to elevate their treating doctors’
status by listing them as experts in the pre-trial motion,
without rendering the required expert reports to defen-
dant, fails as an attempt to subvert the requirements of
Rule 26(a)(2)(B).”
Walmart also successfully moved to exclude portions
of expert testimony from Dr. Alan Hirsch, a board-
certified neurologist. The district court found that
Dr. Hirsch was “not qualified to testify regarding Ms.
Happel’s MS, the exacerbation of her MS, or the causa-
tion of that exacerbation—anaphylactic reaction. Nor
[was] he qualified to testify regarding hypoxia, hyper-
capnia, hyperventilation, asthma, or lung problems.” The
court noted that Dr. Hirsch’s “experience with MS
patients was limited to those coming to him for treat-
ment of smell disorders or mouth pain” and also found
little support for his conclusions regarding the connec-
tion between stress and the exacerbation of MS.
6 No. 07-2264
During trial, the Happels submitted a proposed verdict
form that separated Heidi’s damages from Kent’s
damages, which the district court rejected. Instead, the
verdict form the court used only contained a single line
for compensatory damages to be awarded to the cou-
ple. The jury awarded the Happels $465,400 on the negli-
gence claim, but rejected the Happels’ other claim
for battery.3 Walmart moved to set off the judgment by
$150,000 because the Happels settled with Heidi’s primary
care physician for this amount before trial. The court
granted Walmart’s motion, and the Happels do not
appeal this order. The Happels filed a post-trial motion
for a new trial on damages, which the court denied.
And the Happels now appeal that specific ruling.
II. ANALYSIS
A. Physicians’ Causation Testimony Properly Excluded.
Federal Rule of Evidence 702 governs the admission of
expert testimony. It states, in relevant part, that “[i]f
scientific, technical or other specialized knowledge will
assist the trier of fact . . . a witness qualified as an expert
by knowledge, skill, experience, training or education,
may testify thereto in the form of an opinion . . . .” It also
3
The district court did not instruct the jury on Heidi’s claim
for wilful and wanton misconduct, so the jury did not
consider that claim. The plaintiffs challenged the district court’s
failure to provide this instruction in their post-trial motion,
but have not raised it as an issue on appeal.
No. 07-2264 7
requires that: (1) the testimony must be based upon
sufficient facts or data; (2) it must be the product
of reliable principles and methods; and (3) the witness
must have applied the principles and methods reliably
to the facts of the case. Id. Rule 702 requires the district
court to perform a “gatekeeping” function before ad-
mitting expert scientific testimony in order to “ensure
that any and all scientific testimony or evidence ad-
mitted is not only relevant, but reliable.” Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993).
Before considering whether the testimony “will assist the
trier of fact to understand or determine a fact in issue,” a
district court must make “a preliminary assessment of
whether the reasoning or methodology underlying the
testimony is scientifically valid.” Id. at 592-93. The
Supreme Court has identified the following factors as
pertinent to this inquiry: (1) whether the theory has
been tested; (2) whether the theory has been subjected to
peer review and publication; (3) the known or potential
rate of error; and (4) whether it has been generally
accepted within the relevant scientific community. Id.
at 593-94.
The Happels first argue that Dr. Bringewald’s experience
treating Heidi and other MS patients qualified him as
an expert under the Daubert test. 4 But the district court
excluded Dr. Bringewald as an expert witness because
the Happels had not properly disclosed him as an expert
4
Dr. Bringewald is a board-certified neuro-opthalmologist
and assistant professor of opthalmology, neurology, and
neurosurgery at the University of Texas.
8 No. 07-2264
nor rendered the required expert report. “We review de
novo whether the district court applied the appropriate
legal standard in making its decision to admit or exclude
expert testimony, and we review for abuse of discre-
tion the district court’s choice of factors to include
within that framework and its ultimate conclusions
regarding the admissibility of expert testimony.” Winters
v. Fru-Con, Inc., 498 F.3d 734, 742 (7th Cir. 2007) (citation
omitted).
Here, we do not reach the question of whether Dr.
Bringewald is qualified because of the more glaring
problem—the plaintiffs’ failure to disclose him as an
expert witness during pre-trial discovery. Rule 26(a)(2) of
the Federal Rules of Civil Procedure requires the propo-
nent of expert testimony to disclose the witness’s
identity, along with a written report that contains, among
other things, a “complete statement of all opinions the
witness will express and the basis and reasons for
them.” 5 The sanction for failure to comply with this rule
is the “automatic and mandatory” exclusion from trial
of the omitted evidence, “unless non-disclosure was
justified or harmless.” Hammel v. Eau Galle Cheese Factory,
5
Rule 26(a)(2)(B) provides in pertinent part:
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 employed to pro-
vide expert testimony in the case or one whose duties
as the party’s employee regularly involve giving
expert testimony. . . .
No. 07-2264 9
407 F.3d 852, 869 (7th Cir. 2005) (citation omitted). The
Happels do not challenge this ruling; they did not even
mention it in their opening brief. See Bodenstab v. County
of Cook, 569 F.3d 651, 658 (7th Cir. 2009) (holding that
appellant waived arguments that were not developed
until the reply brief). So we cannot find that the district
court abused its discretion in excluding Dr. Bringewald’s
opinion testimony.
As to Dr. Hirsch, the Happels argue that his academic
credentials and practical experience qualified him as an
expert on the effects of stress on MS.6 However, the
district court found that Dr. Hirsch’s opinion that psy-
chological and physical stress exacerbated Heidi’s MS
was unreliable because it lacked a sufficient basis. The
district court concluded that Dr. Hirsch’s qualifications
rendered him capable of testifying about Heidi’s “depres-
sion, headaches, psychiatric and psychological issues,
PTSD, seizures, and schematic brain functions” based on
his research and publications relating to those types of
issues. But Dr. Hirsch was not qualified to testify about
Heidi’s MS, the exacerbation of her MS, or other related
physical ailments because he had very limited experience
with MS patients (most of whom sought his expert-
ise specifically for the treatment of smell disorders or
6
Dr. Hirsch is board-certified in psychiatry (general and
specialized areas such as pain management, addiction, and
geriatric) and neurology, as well as an assistant professor in
the neurology and psychiatry departments at Rush-
Presbyterian-St. Luke’s Medical Center.
10 No. 07-2264
mouth pain) and the opinion was not supported by
relevant medical literature.
In addition to his lack of experience in treating patients
with MS, Dr. Hirsch offered no experimental, statistical,
or other scientific data to support his theory that stress
from anaphylactic shock exacerbated Heidi’s MS. Some
physicians rely on treatises, medical tests, and laboratory
findings to reach their causation conclusions, while
others conduct a differential diagnosis 7 to rule out the
least plausible causes of illness. See Hollander v. Sandoz
Pharm. Corp., 289 F.3d 1193, 1209 (10th Cir. 2002). However,
Dr. Hirsch does not cite any of these methodologies
in his attempt to demonstrate the causal relationship
between stress and MS; rather, he relies solely on his
past experience and the temporal proximity of Heidi’s
allergic reaction and recurring MS symptoms. This does
not an expert opinion make. To the extent that Dr. Hirsch
does rely on medical literature to support his theory,
the articles to which he cites stop short of reaching the
same conclusion. Indeed, one of the articles directly
contradicts his theory, stating “the association between
stressful life experiences and changes in immune func-
tion do not establish a causal link between stress, im-
mune function, and disease.” See Huss v. Gayden, 571 F.3d
442, 459 (5th Cir. 2009) (“It is axiomatic that causation
7
Differential diagnosis is “the determination of which of two
or more diseases with similar symptoms is the one from
which the patient is suffering, by a systematic comparison and
contrasting of the clinical findings.” S TEDMAN ’S M EDICAL
D ICTIONARY 110620 (27th ed. 2000).
No. 07-2264 11
testimony is inadmissible if an expert relies upon studies
for publications, the authors of which were themselves
unwilling to conclude that causation had been proven.”).
At best, Dr. Hirsch’s testimony would have amounted
to an “inspired hunch,” and the district court certainly
did not abuse its discretion in excluding it. Rosen v. Ciba-
Geigy Corp., 78 F.3d 316, 319 (7th Cir. 1996).
B. Ambiguous Jury Instructions and Verdict Form.
The plaintiffs argue that the district court erred by
using a verdict form that failed to separate Heidi’s dam-
ages from Kent’s damages, and that as a result, they
were prejudiced and are entitled to a new trial on dam-
ages. We agree.
The denial of a motion for a new trial is reviewed for
an abuse of discretion, Moore ex rel. Estate of Grady v.
Tuelja, 546 F.3d 423, 427 (7th Cir. 2008), and we will not
set aside a verdict unless a party suffered prejudice
from the assigned error, see Fed. R. Civ. P. 61. In their
complaint, the plaintiffs asserted separate causes of
action. Heidi’s claims were for negligence, wilful and
wanton misconduct, and battery, while Kent’s only
claim was for loss of society. The district court grouped
the negligence and loss of society claims for purposes of
the jury instructions and the verdict form. With respect
to the negligence claim, the district court instructed the
jury as follows:
On the negligence count, you must fix the amount
of money which will reasonably and fairly com-
12 No. 07-2264
pensate them for any of the following elements of
damages proved by the evidence to have resulted
from the negligence of the defendant, taking into
consideration the nature, extent and duration of
the injury.
• The reasonable expense of necessary
medical care, treatment, and services
received and the present cash value of
the reasonable expenses of medical care,
treatment and services reasonably
certain to be received in the future;
• The loss of a normal life experienced and
reasonably certain to be experienced in
the future;
• The pain and suffering experienced and
reasonably certain to be experienced in
the future;
• The emotional distress experienced and
reasonably certain to be experienced in
the future;
• The value of salaries and benefits lost;
• The loss of society and companionship
experienced by Kent Happel and the loss
of society and companionship that is
reasonably certain to be deprived of [sic]
in the future;
• The value of the loss of services of his
wife experienced by Kent Happel.
No. 07-2264 13
Whether any of these elements of damages has
been proved by the evidence is for you to deter-
mine. . . . If you find that both Plaintiffs are entitled
to recover, you will assess the damages of each
separately and return a verdict in separate amount
for each.
The plaintiffs proposed a verdict form that separated the
jury’s damage awards as to Heidi and Kent and provided
spaces for further itemization of the damages. Rejecting
that proposed verdict form, the court used a form that
contained only one line for damages: “We, the jury, find
for the plaintiffs, Heidi Happel and Kent Happel, on
the count of negligence and fix their compensatory dam-
ages at $ ______.”
In determining whether the verdict form is confusing,
we must consider it in light of the instructions given, see
United States v. Hines, 728 F.2d 421, 427 (10th Cir. 1984),
and we construe jury instructions “in their entirety and
not in artificial isolation,” United States v. Westmoreland,
122 F.3d 431, 434 (7th Cir. 1997), reviewing “whether the
jury was misled in any way and whether it had under-
standing of the issues and its duty to determine those
issues,” Tikalsky v. City of Chicago, 687 F.2d 175, 181 (7th
Cir. 1982) (citation omitted). Considered together, the
jury instructions and the verdict form were ambiguous.
The district court’s instructions to the jury improperly
subsumed Kent’s loss of society claim within Heidi’s
negligence claim and did not clearly explain to the jury
that the plaintiffs had individually asserted unique
claims. Although the loss of society instructions
14 No. 07-2264
specifically referred to Kent, they were at the end of a
general negligence instruction which never explained
which damages were unique to Heidi’s claim.
Even if this ambiguity could have been clarified by the
court’s instruction that the jury return separate verdicts
for each plaintiff, it conflicted with the verdict form’s
single line for a total damage amount. The verdict form
gives us no insight as to how the jury allocated the dam-
ages among Heidi’s and Kent’s claims. And contrary to
Walmart’s assertions that the Happels’ marital status
makes a division of damages unnecessary for purposes
of distributing the jury award, Illinois courts have
rejected the argument that settlement amounts should
be combined for the purposes of set-off simply because
the plaintiffs are a family unit. See, e.g., Johnson v. Belleville
Radiologists, Ltd., 581 N.E.2d 750, 757 (Ill. App. 1991) (in
case where a husband and wife sued hospital and
doctors for medical malpractice and settled with two
defendants before trial, trial court properly refused to
set off total settlement against nonsettling defendants’
judgment because Illinois has not adopted a bright-line
rule requiring total set-off when plaintiffs are family
unit). Therefore, we conclude that any finding by the
jury in which both Heidi and Kent were entitled to dam-
ages could be challenged because the jury instructions
and verdict form were ambiguous. As a result, it is impos-
sible to determine the proper set-off allocation. And it
was error to give the instruction and utilize the verdict
form.
Next, we turn to whether the plaintiffs suffered
prejudice from the combined award. Before trial, both
No. 07-2264 15
Kent and Heidi settled with Heidi’s primary care
physician for $75,000 each, and the district court set off
the total of their settlements, $150,000, from the jury’s
damage award of $465,400. But the set-off amount
assumes that the jury awarded more than $75,000 to both
Kent and Heidi. If, for instance, the jury believed that
Kent was only entitled to $5,000 in damages and al-
located the remaining $460,400 to Heidi, then Kent’s and
Heidi’s set-off amounts would have been $5,000 and
$75,000 respectively. That would result in a total set-off
of $80,000, which is $70,000 less than the amount the
district court had calculated. In other words, if either
Kent’s or Heidi’s portion of the damage award is less
than $75,000, then the appropriate set-off would be less
than the $150,000 set by the district court. And the
Happels would have been left with more of the award
to take home. Clearly, the Happels were prejudiced by
the use of a verdict form that may have resulted in a
lower damage award.8
8
Although this case presents a unique set of facts, the potential
prejudice caused by an ambiguous verdict has warranted a
reversal in other contexts. In CGB Occupational Therapy, Inc. v.
RHA Health Services, Inc., for example, the verdict form did not
allow the jury to differentiate between two contracts that were
the subject of a tortious interference claim when the jury
awarded punitive damages. 357 F.3d 375, 390 (3d Cir. 2004). The
court, on appeal, found that the defendant did not tortiously
interfere with one of the contracts, and because the verdict form
did not indicate how the jury allocated punitive damages
between the two allegedly tortious acts, the Third Circuit
remanded for a new trial on punitive damages. Id.
16 No. 07-2264
Finally, we reject Walmart’s argument that the Happels
did not appeal the set-off order and cannot use their
challenge to the verdict form to do so. We do not
believe the Happels’ reference to the set-off in identi-
fying the prejudice of an ambiguous verdict can be con-
strued as a challenge to the set-off order. If the jury’s
allocation of damages on remand does warrant a recal-
culation of the set-off amount, the district court has
broad discretion to vacate its previous order. See Fed. R.
Civ. P. 60(b).
III. CONCLUSION
For these reasons, we R EVERSE the judgment of the
district court and R EMAND for a new trial on damages.
4-19-10