Case: 13-10920 Date Filed: 09/27/2013 Page: 1 of 12
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-10920
Non-Argument Calendar
________________________
D.C. Docket No. 1:10-cv-03044-JOF
TOM COOPER,
GAIL COOPER,
Plaintiffs-Appellants,
versus
MARTEN TRANSPORT, LTD.,
DWAYNE STROMAN,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(September 27, 2013)
Before CARNES, Chief Judge, BARKETT and BLACK, Circuit Judges.
PER CURIAM:
Case: 13-10920 Date Filed: 09/27/2013 Page: 2 of 12
On April 21, 2010, husband and wife Tom and Gail Cooper were involved in
a low-speed car accident with a tractor trailer driven by Dwayne Stroman on behalf
of Marten Transport, Ltd. After the collision, the Coopers sought treatment for
back pain and ultimately underwent surgery. The Coopers filed an Amended
Complaint against Stroman and Marten Transport, alleging causes of action for
negligence and negligent retention and hiring. On appeal, the Coopers challenge
(1) the district court’s order excluding their expert witnesses’ testimony regarding
the cause of their back problems and need for medical treatment, and (2) the
district court’s grant of summary judgment to Marten Transport and Stroman.
After review of the record and consideration of the parties’ briefs, we affirm in
part, reverse in part, and remand.
I. Exclusion of Expert Testimony1
The Coopers sought to introduce the testimony of three expert witnesses to
establish that the 2010 collision caused their back injuries and subsequent need for
surgery. The district court excluded the causation testimony of the witnesses as
unreliable under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993).
1
We review the district court’s exclusion of expert testimony for an abuse of discretion
and will defer to the court’s ruling unless it is manifestly erroneous. Hendrix ex rel. G.P. v.
Evenflo Co., Inc., 609 F.3d 1183, 1191 (11th Cir. 2010).
2
Case: 13-10920 Date Filed: 09/27/2013 Page: 3 of 12
Daubert requires district courts to perform a gatekeeping function in
assessing the reliability and consequent admissibility of an expert witness’s
testimony. Hendrix ex rel. G.P. v. Evenflo Co., Inc., 609 F.3d 1183, 1193 (11th
Cir. 2010). In performing this function, the district court must conduct “a
preliminary assessment of whether the reasoning or methodology underlying the
testimony is scientifically valid and of whether that reasoning or methodology
properly can be applied to the facts in issue.” Id. (quotation omitted). The Daubert
Court enumerated several factors the district court may use to assess the reliability
of proffered scientific testimony, including:
(1) whether the theory or technique can be (and has been) tested,
(2) whether the theory or technique has been subjected to peer review
and publication, (3) in the case of a particular scientific technique, the
known or potential rate of error, and (4) whether the theory or
technique is generally accepted by the relevant scientific community.
Id. at 1194 (quotation and alteration omitted); see also Daubert, 509 U.S. at
593-94. “This list, however, is not exhaustive, and district courts have substantial
discretion in deciding how to test an expert’s reliability.” Hendrix, 609 F.3d
at 1194 (quotation omitted).
A. Dr. Hutton
The Coopers attempted to admit the testimony of Dr. William C. Hutton, a
biomechanical engineer, who would have explained that the 2010 collision caused
damage to the Coopers’ spines and lumbar discs. Specifically, Dr. Hutton would
3
Case: 13-10920 Date Filed: 09/27/2013 Page: 4 of 12
have opined that the combination of three stresses—the Coopers’ obesity, the
probable twisting of their spines to the left due to the fact that they were likely
turned looking at oncoming traffic, and the flexion of their spines from being
seated—“would have been enough to damage the disc[s] or exacerbate a
pre-existing lumbar degenerative disc” when Stroman ran into them.
The district court excluded Dr. Hutton’s testimony as unreliable, explaining
that he spent only five hours reviewing case material, that a significant portion of
that time was devoted to thinking, and that his methodology was to rely on his 40
years of experience. On appeal, the Coopers argue the district court failed to
account for Dr. Hutton’s extensive experience and his many peer-reviewed
publications wherein he articulated the principles underlying his opinion in this
case.2
The district court did not abuse its discretion in excluding Dr. Hutton’s
testimony. While “there are instances in which a district court may determine the
reliability prong under Daubert based primarily upon an expert’s experience and
general knowledge in the field . . . at all times the district court must still determine
2
Although the Coopers argue that the district court erred in excluding Dr. Hutton’s
testimony as to both general and specific causation, we do not read Dr. Hutton’s testimony as
relating to general causation. Dr. Hutton’s one-page expert report related exclusively to the
specific cause of the Coopers’ injuries, and the focus of his deposition testimony related to his
opinion that the 2010 collision caused the Coopers’ current back problems. Moreover, while the
Coopers’ initial brief references general and specific causation, it does not differentiate between
the two, and the gravamen of their argument pertains to the specific circumstances of the 2010
collision.
4
Case: 13-10920 Date Filed: 09/27/2013 Page: 5 of 12
the reliability of the opinion, not merely the qualifications of the expert who offers
it.” Kilpatrick v. Breg, Inc., 613 F.3d 1329, 1336 (11th Cir. 2010) (citation
omitted). Although Dr. Hutton has extensive experience in his field, his opinion
in this case was not the product of a scientifically reliable methodology. He
generated his opinion that the 2010 collision caused the Coopers’ back injuries, or
aggravated preexisting problems, by learning and thinking about the Coopers’ case
and reaching a conclusion. Dr. Hutton specifically admitted that in arriving at his
opinion he did not conduct any testing. Dr. Hutton’s methodology was not reliable
because it was not derived from the scientific method; rather, it amounted to asking
the district court simply to “tak[e] the expert’s word for it.” See Hendrix, 609 F.3d
at 1201 (quotation omitted). As we have repeatedly cautioned, “nothing in either
Daubert or the Federal Rules of Evidence requires a district court to admit opinion
evidence that is connected to existing data only by the ipse dixit of the expert.” Id.
(quotations and brackets omitted).
The district court’s decision to exclude Dr. Hutton’s testimony is bolstered
by the fact that Dr. Hutton testified that simply stepping off a curb the wrong way
could have created the same injuries for which the Coopers were treated. Yet, Dr.
Hutton did not explain how or why such a scenario was an unlikely cause of the
Coopers’ back problems in this case. See id. at 1197 (“A district court is justified
in excluding evidence if an expert utterly fails to offer an explanation for why the
5
Case: 13-10920 Date Filed: 09/27/2013 Page: 6 of 12
proffered alternative cause was ruled out.” (quotations and alterations omitted)).
On this record, we cannot say the exclusion of Dr. Hutton’s testimony was
manifestly erroneous. See id. at 1191.
B. Dr. Pollydore and Dr. Kelley
The Coopers also sought to admit the testimony of their treating physician,
Dr. Shevin Pollydore, and their surgeon, Dr. Lee Kelley, who would have testified
that the 2010 collision caused the Coopers’ need for treatment. Dr. Pollydore’s
method of determining causation consisted of reviewing the Coopers’ medical
histories and his examinations of them from before and after the 2010 collision. In
describing his methodology, Dr. Kelley testified that doctors have studied basic
physics principles and the effects of force on the spine. Dr. Kelley also stated that
he had looked at several photographs and had spoken with the Coopers.
After reviewing the Coopers’ medical histories, the district court explained
that determining causation in this case was difficult because of the Coopers’
history of back pain, the fact that they both possessed degenerative back
conditions, and the fact that those conditions were compounded by the Coopers’
obesity and a different car accident in 2009. As such, a review of the Coopers’
medical histories could not establish that the 2010 collision caused their current
back problems. The court then concluded that causation could not be determined
through physical examination and the chronology of events alone. The district
6
Case: 13-10920 Date Filed: 09/27/2013 Page: 7 of 12
court further noted that neither Dr. Pollydore nor Dr. Kelley explained why they
believed the 2010 collision caused the Coopers’ injuries, rather than the 2009
collision or their preexisting conditions.
On appeal, the Coopers argue the district court rejected the doctors’ use of
nerve studies, x-rays, discograms, and other diagnostic tests as a valid
methodology for finding causation. Moreover, both doctors conducted differential
etiologies and considered the Coopers’ medical histories and the 2009 collision as
possible causes of the Coopers’ current injuries. The Coopers contend the district
court misapplied the law because it required them to completely rule out
degenerative disc disorder as a contributing factor to their injuries, when, under
Georgia law, they simply had to prove that the 2010 collision contributed to or
aggravated their degenerative disc disorder.
As with Dr. Hutton’s testimony, we cannot say the district court’s exclusion
of the medical doctors’ testimony was manifestly erroneous. As an initial matter,
the Coopers conflate their burden on causation, which is a matter of state law, with
the reliability analysis required by Daubert, which is a separate inquiry governed
by federal law. See Hendrix, 609 F.3d at 1193. We also note that, although the
Coopers attempt to classify the doctors’ methodology as that of a differential
etiology, it is plain that no such methodology was, in fact, employed in this case.
Differential etiology “is a medical process of elimination whereby the possible
7
Case: 13-10920 Date Filed: 09/27/2013 Page: 8 of 12
causes of a condition are considered and ruled out one-by-one, leaving only one
cause remaining.” Hendrix, 609 F.3d at 1195. Drs. Pollydore and Kelley, by
comparison, simply conducted physical examinations and reviewed the Coopers’
medical histories to arrive at the conclusion that the 2010 collision caused the
Coopers’ injuries in this case. The doctors never compiled a comprehensive list of
possible causes that they subsequently “systematically and scientifically rul[ed]
out . . . until a final, suspected cause remain[ed].” Kilpatrick, 613 F.3d at 1342;
see also Hendrix, 609 F.3d at 1197 (indicating that “an expert must provide
reasons for rejecting alternative hypotheses using scientific methods and
procedures and the elimination of those hypotheses must be founded on more than
subjective beliefs or unsupported speculation” (quotation omitted)).
The methodology employed by Drs. Pollydore and Kelley was unreliable, as
it amounted to simple reliance on a temporal relationship. The doctors concluded
that, because the Coopers did not manifest their specific injuries or need for
surgery until after the 2010 collision, the 2010 collision was the cause of those
injuries. Such reasoning “is a classic ‘post hoc ergo propter hoc’ fallacy which
‘assumes causation from temporal sequence.’” Kilpatrick, 613 F.3d at 1343. We
have previously held that a district court did not abuse its discretion in rejecting
such a methodology, or a methodology that consisted of reliance on medical
literature and a temporal relationship. See id. at 1342-43. In this case, the district
8
Case: 13-10920 Date Filed: 09/27/2013 Page: 9 of 12
court did not abuse its discretion in finding Dr. Pollydore’s and Dr. Kelley’s
methodologies for establishing specific causation unreliable under Daubert. See
id. at 1343-44 (explaining “the abuse of discretion standard ‘thrives’ when
addressing Daubert issues.”).
II. Grant of Summary Judgment 3
The district court granted Appellees’ motion for summary judgment, finding
that the Coopers’ causation evidence was inadequate because it relied solely on the
temporal sequence of the 2010 collision and the Coopers’ subsequent injuries. On
appeal, the Coopers argue they are “egg shell” plaintiffs, and the 2010 collision
aggravated their preexisting back problems. Furthermore, Georgia law allows
jurors to weigh the timing of a plaintiff’s symptoms in determining proximate
causation, and medical testimony is not needed to prove causation.
To establish a claim of negligence under Georgia law, the plaintiff must
demonstrate “the existence of a duty on the part of the defendant, a breach of such
duty, causation of the injury alleged, and damages as a result of the alleged breach
of duty.” Wells Fargo Bank, N.A. v. Jenkins, 744 S.E.2d 686, 687 (Ga. 2013). In
general, plaintiffs need not produce expert evidence to prove causation in a
negligence case. Cowart v. Widener, 697 S.E.2d 779, 784 (Ga. 2010). However,
3
We review the district court’s grant of summary judgment de novo, viewing the facts
and drawing all reasonable inferences in the light most favorable to the nonmoving party.
McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1257 (11th Cir. 2002).
9
Case: 13-10920 Date Filed: 09/27/2013 Page: 10 of 12
expert testimony is necessary where the issue of causation presents “specialized
medical questions,” i.e., where “the link between a defendant’s actions and the
plaintiff’s injury is beyond common knowledge and experience” and presents
medical questions that “can be answered accurately only by witnesses with
specialized expert knowledge.” Id. at 785-86. The Georgia Supreme Court has
indicated that “whether an automobile collision caused a backache later the same
day is not the type of medical question that requires expert testimony.” See id. at
785 (citing Jordan v. Smoot, 380 S.E.2d 714 (Ga. Ct. App. 1989)).
Furthermore, it appears that Georgia law allows a jury to infer a causal
connection between an accident and a plaintiff’s injuries based on the sequence of
events, particularly in the case of automobile collisions. See Hutcheson v. Daniels,
481 S.E.2d 567, 569 (Ga. Ct. App. 1997) (“[A] lay jury could conclude from
common knowledge that a causal connection existed [between a car accident and
the plaintiff’s injuries] in light of the short lapse between Daniels’ accident and his
onset of symptoms and receipt of medical treatment.”); Jordan v. Smoot, 380
S.E.2d 714, 714-15 (Ga. Ct. App. 1989); cf. Cowart, 687 S.E.2d at 791 (“A lay
jury may reasonably infer a causal link between a sharp blow to the head of a
patient whose condition appeared to be improving and his death from bleeding in
his head a few hours later.”).
10
Case: 13-10920 Date Filed: 09/27/2013 Page: 11 of 12
The district court erred in finding that the Coopers presented inadequate
evidence of causation. In this diversity case, the burden of proof regarding
causation is governed by state law, and Georgia law allows the factfinder to draw a
causal inference based on temporal proximity between an accident and an injury.
Although the district court and Appellees rely on federal law discussing temporal
proximity in the context of the reliability of an expert’s methodology under
Daubert, such cases are inapposite to the separate and distinct question of proving
causation under state law. 4 Whether the Coopers suffered new or aggravated back
problems shortly after a low-speed collision with a tractor trailer is the type of
question a lay jury could decide based on common knowledge. See Hutcheson,
481 S.E.2d at 569. Furthermore, while Appellees presented evidence that the
Coopers’ injuries may have been the result of preexisting conditions or the 2009
collision, such evidence created a dispute of material fact that the district court was
not authorized to resolve at the summary judgment stage. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986) (“[A]t the summary judgment stage the
judge’s function is not himself to weigh the evidence and determine the truth of the
matter.”); Cowart, 687 S.E.2d at 791 (explaining that, where a defendant
4
While it may seem contradictory to conclude that temporal proximity is an insufficient
basis for an expert’s testimony regarding causation, yet a permissible basis for a jury to
determine causation on its own, we note that special concerns accompany the admission of
expert testimony, which may have a “powerful and potentially misleading effect” and “may be
assigned talismanic significance in the eyes of lay jurors.” United States v. Frazier, 387 F.3d
1244, 1263 (11th Cir. 2004) (en banc).
11
Case: 13-10920 Date Filed: 09/27/2013 Page: 12 of 12
maintained that acute leukemia caused a patient’s death, rather than a slip and fall,
“[a] defense expert may create a material issue as to whether the blow was the
actual cause of death, but in that event, the jury resolves the disputed fact; it does
not require summary judgment for the defendant”); Greenway v. Northside Hosp.,
Inc., 730 S.E.2d 742, 751 (Ga. Ct. App. 2012) (“The question of proximate cause
is usually reserved for the jury and can be decided on summary judgment only in
plain and indisputable cases.” (quotation omitted)). Accordingly, the district
court’s grant of summary judgment is reversed.
The district court resolved Appellees’ motion for summary judgment on
causation grounds and it therefore did not reach the issue of the Coopers’ claim for
negligent hiring and retention. We leave it to the district court to consider that
claim in the first instance on remand.
III. Conclusion
For the foregoing reasons, we affirm the district court’s order excluding the
Coopers’ expert testimony, reverse the district court’s grant of summary judgment,
and remand for further proceedings.
AFFIRMED in part, REVERSED in part, and REMANDED.
12
Tom Cooper v. Marten Transport, LTD
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2013-09-27
Citations: 539 F. App'x 963
Copy Citations