Dundee v. Horton ( 2015 )

Cite as 2015 Ark. App. 690
ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-14-674
Opinion Delivered December 2, 2015
TRICIA DUNDEE APPEAL FROM THE SEBASTIAN
APPELLANT COUNTY CIRCUIT COURT,
GREENWOOD DISTRICT
V. [NOS. CV-11-1654, CV-13-147G]
HONORABLE JAMES O. COX,
BRENDA HORTON AND GEICO JUDGE
GENERAL INSURANCE COMPANY
APPELLEES REVERSED AND REMANDED
LARRY D. VAUGHT, Judge
After appellee Brenda Horton rear-ended appellant Tricia Dundee in a motor-vehicle
accident, Dundee filed a complaint for negligence against Horton. Horton admitted liability.
At the conclusion of trial, a Sebastian County jury awarded Dundee damages in the amount
of $14,100, and a judgment was entered on that verdict. On appeal, 1 Dundee argues that the
trial court abused its discretion (1) in granting Horton’s motions in limine excluding
causation testimony from two of Dundee’s medical providers, and (2) in denying her request
to introduce a video into evidence. We reverse and remand.
Because Horton admitted liability, the only issues at trial were the amount of damages
suffered by Dundee and whether they were proximately caused by Horton. Dundee was
1This is Dundee’s second attempt to appeal from the judgment on the jury verdict. In
Dundee v. Horton, 2015 Ark. App. 264, we ordered rebriefing due to deficiencies in Dundee’s
abstract and addendum. These deficiencies have been corrected.
Cite as 2015 Ark. App. 690
initially treated by Patrick Walton, a physician assistant, for her neck, low back, left shoulder,
and leg complaints. Walton referred Dundee to Dr. Cathy Luo, a pain-management
physician. In their depositions, both Walton and Dr. Luo opined that the car accident was
the cause of Dundee’s injuries and her need for future treatment. Also, they testified that,
while Dundee had not advised them of her prior low-back complaints, that information did
not change their causation opinions.
Prior to trial, Horton moved to exclude the expert testimony of Walton and Dr. Luo
that the car accident caused Dundee’s injuries. Specifically, Horton argued that under
Arkansas Rules of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993), the causation testimony of Walton and Dr. Luo lacked reliability because they did not
have first-hand knowledge of the accident; they did not make any independent investigations
regarding the accident; they were not experts in kinetics, biomechanics, physics, or
engineering; and their opinions were based solely on the subjective statements of Dundee,
which did not include her history of low-back complaints.
Dundee responded that both Dr. Luo and Walton were experts in their medical
fields, they had significant experience in treating car-accident injuries, they viewed pictures of
the vehicles involved in the accident, they treated and evaluated Dundee, and they had
Dundee’s history concerning the accident; therefore, their causation testimony was
admissible under Arkansas Rule of Evidence 702 and Daubert. Dundee claimed that Horton’s
arguments went to the weight of the evidence, not its admissibility. The trial court granted
the motions in limine, excluding all causation testimony of Dr. Luo and Walton.
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At trial, Walton testified he earned an associate of applied science degree in surgical
technology and for five years had practiced as a certified orthopedic technician assisting
physicians during orthopedic surgeries. Thereafter, he earned a science degree as a physician
assistant, which included radiology course work. He passed a national certification exam, was
licensed by the Arkansas Medical Board, and had been practicing as a physician assistant the
past seven years. He stated that he had treated approximately one hundred orthopedic
patients who had been involved in motor-vehicle accidents.
Walton testified that his treatment of Dundee included requesting and interpreting x-
rays; performing steroid injections; prescribing medication, a TENS unit, and physical
therapy; and ordering an MRI. When conservative treatment failed, Walton referred Dundee
to Dr. Joseph Queeney, a neurosurgeon. Dr. Queeney evaluated Dundee and opined that
she was not a surgical candidate and had no objective evidence of nerve-root compression.
He referred Dundee back to Walton, who then referred her to Dr. Luo.
Dr. Luo testified that she is a medical doctor specializing in pain management for the
last seven years. Dr. Luo saw Dundee, who described her complaints, her medical history,
and the motor-vehicle accident. Dr. Luo also reviewed Dundee’s medical records, which
included the MRI. Dr. Luo treated Dundee with multiple lumbar-epidural injections and said
that Dundee will need injections for the rest of her life in order to manage her chronic pain.
Dr. Lou also testified that Dundee will be required to see a pain-management doctor every
three months for oral-medication review.
Horton admitted that she rear-ended Dundee. Horton added that “the collision was a
very hard impact” that left her dazed and temporarily trapped in her vehicle. State Police
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Trooper Billy Turnipseed, who investigated the motor-vehicle accident, testified that the
force of the collision caused the air bags in both vehicles to deploy and that both vehicles
had to be towed from the accident scene. Testimony from Dundee’s children’s youth pastor,
two friends, two children, and her husband was similar, stating that before the accident,
Dundee was pain free and very physically active; however, after the accident she suffered
from pain and limited physical abilities.
Dundee testified that the impact from the accident was hard and that it caused her
pain in her hip, head, shoulder, neck, and low back. She said that her medical expenses
caused by the accident were $34,462.05. She stated that her pain affected her daily life and
significantly limited her activities. She said that prior to the accident she had been pain free,
which was why she did not tell her doctors about prior back pain. She also testified that her
low-back pain in 2007 was due to an ovarian cyst, which had resolved.
Registered nurse Victoria Powell testified that she created a life-care plan for Dundee
after reviewing her medical records, interviewing her, performing a nursing assessment,
assigning a nursing diagnosis, and formulating a treatment plan. Economist Ralph Scott
reviewed the life-care plan and testified that Dundee’s economic losses from the accident
totaled $509,935.88 ($361,502.22 in future medical expenses and $148,433.66 in lost
household services).
The jury awarded Dundee damages in the amount of $14,100, and the trial court
entered a judgment on the verdict. This appeal followed.
Dundee’s first argument on appeal is that the trial court abused its discretion in
excluding the testimony of her expert witnesses, Walton and Dr. Luo, that her injuries were
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caused by the accident with Horton. Whether a witness qualifies as an expert in a particular
field is a matter within the trial court’s discretion, and we will not reverse such a decision
absent an abuse of that discretion. Graftenreed v. Seabaugh, 100 Ark. App. 364, 371, 268
S.W.3d 905, 914 (2007). If an opponent of the expert testimony contends that the expert is
not qualified, the opponent bears the burden of showing that the testimony should be
stricken. Id. at 371–72, 268 S.W.3d at 914. An expert may, however, rely on information
provided by others in the formulation of his opinion. Id. at 372, 268 S.W.3d at 914. If some
reasonable basis exists demonstrating that a witness has knowledge of a subject beyond that
of ordinary knowledge, the evidence is admissible as expert testimony. Id., 268 S.W.3d at
914. There is a decided tendency to permit the fact-finder to hear the testimony of persons
having superior knowledge in the given field, unless they are clearly lacking in training and
experience. Id., 268 S.W.3d at 914.
Arkansas Rule of Evidence 702 provides that “[i]f 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.” Ark. R. Evid. 702
(2015). Rule 703 provides that the facts or data on which an expert bases an opinion or
inference may be those perceived by or made known to him at or before the hearing. Ark. R.
Evid. 703 (2015). Finally, Rule 704 provides that testimony in the form of an opinion
otherwise admissible is not objectionable because it embraces an ultimate issue to be decided
by the trier of fact. Ark. R. Evid. 704 (2015).
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Under these rules, Walton and Dr. Luo’s causation opinions qualify as expert-witness
testimony. Walton worked as a certified surgical technician from 1998–2005, and in four of
those years, specialized in orthopedic surgeries. He has worked as a physician assistant since
2006, and he has treated one hundred orthopedic patients who have been involved in motor-
vehicle accidents. Dr. Luo, a medical doctor, has worked in the pain-management and
rehabilitation specialty since 2005. Both have specialized knowledge with regard to the
treatment of orthopedic injuries. Walton and Dr. Luo have been trained and educated in
their medical specialties, are board certified, and are licensed to practice medicine in
Arkansas. Both know how to read radiology reports. These two witnesses offered specialized
information about orthopedic injuries and how they are caused beyond the common
knowledge of the jury. Therefore, we hold that the trial court abused its discretion in
excluding Walton’s and Dr. Luo’s opinion testimony on causation.
We reject Horton’s argument that Walton and Dr. Luo’s causation testimony is
inadmissible because they are not experts in physics, vehicular biomechanics, engineering, or
kinetics. While it is true that experts may not offer opinions that range too far outside their
areas of expertise, if some reasonable basis exists demonstrating that a witness has
knowledge of a subject beyond that of ordinary knowledge, the evidence is admissible as
expert testimony. Graftenreed, 100 Ark. App. at 372, 268 S.W.3d at 914. Further, the fact that
a medical expert is not a specialist in a particular field does not necessarily exclude him from
offering testimony. Id. at 372, 268 S.W.3d at 914. Arkansas Rule of Evidence 702 expressly
recognizes that an expert’s testimony may be based on experience in addition to knowledge
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and training. Id., 268 S.W.3d at 914. Absolute expertise concerning a particular subject is not
required to qualify a witness as an expert. Id., 268 S.W.3d at 914.
In Graftenreed, also a car-accident case, our court affirmed the trial court’s admission
of testimony from a chiropractor about the permanency and probable cause of the plaintiff’s
neck and back injuries. 100 Ark. App. at 362, 268 S.W.3d at 914. The chiropractor in
Graftenreed was not an expert in any of the areas Horton claims Walton and Dr. Luo must be
experts in, yet the chiropractor was permitted to give his opinion on the probable cause of
the plaintiff’s injuries. See also Tedder v. Am. Railcar Indus., Inc., 739 F.3d 1104, 1109 (8th Cir.
2014); Kudabeck v. Kroger Co., 338 F.3d 856, 862 (8th Cir. 2003) (affirming the admission of
causation testimony from the plaintiffs’ treating physician/chiropractor, which was based on
the medical providers’ differential diagnoses, which included their observations, examination
findings, testing, and other doctors’ opinions); Collins v. Hinton, 327 Ark. 159, 167, 937
S.W.2d 164, 168 (1997) (affirming admission of causation testimony of treating chiropractor
and orthopedic surgeon).
Accordingly, we hold that Walton and Dr. Luo did not have to be experts in physics,
vehicular biomechanics, engineering, or kinetics to give expert causation testimony in this
motor-vehicle-accident case. Their causation opinions did not require them to be experts in
any field other than the ones in which they were unquestionably qualified. They were both
practicing medicine in the field of orthopedics and had experience in treating patients who
had suffered orthopedic injuries as a result of car accidents. They performed exams and tests
and consulted with other doctors. The experience and training of Dr. Luo and Walton gave
them insight into the subject beyond that of the ordinary person. This is a sufficient
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foundation under our rules of evidence for the expert-witness causation testimony excluded
by the trial court.
We also disagree with Horton’s contention that Walton and Dr. Luo’s opinions are
unreliable and therefore inadmissible under Daubert. In Daubert, the Supreme Court held that
when the trial court is faced with a proffer of expert scientific testimony, the trial court must
determine whether the expert is proposing to testify to scientific knowledge that will assist
the trier of fact to understand or determine a fact in issue. 509 U.S. at 592. This entails 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. at 592–93. The court held that a key consideration is whether the
scientific theory or technique can be or has been tested. Id. at 593. Other considerations
include whether the theory or technique has been subjected to peer review and publication,
the potential rate of error, and the existence and maintenance of standards controlling the
technique’s operation. Id. at 593–94. Additionally, the Court recognized that general
acceptance in the scientific community can have a bearing on the inquiry. Id. at 594.
In Kumho Tire Co., Ltd. v. Carmichael, the Supreme Court held that Daubert’s general
holding applies not only to testimony based on “scientific” knowledge, but also to testimony
based on “technical” and “other specialized” knowledge. 526 U.S. 137, 141 (1999) (citing
Fed. R. Evid. 702). The Kumho court also concluded that a trial court may consider one or
more of the specific factors that Daubert mentioned when doing so will help determine that
testimony’s reliability. Kumho, 526 U.S. at 141. The Daubert test of reliability is “flexible,” and
Daubert’s list of specific factors neither necessarily nor exclusively applies to all experts or in
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every case. Id. at 141–42. The factors identified in Daubert may or may not be pertinent in
assessing reliability, depending on the nature of the issue, the expert’s particular expertise,
and the subject of his testimony. Id. at 150. In other words, not all expert testimony is
subject to the Daubert analysis.
In the instant case, we conclude that it was not necessary for the trial court to engage
in a Daubert analysis relating to the reliability of Walton’s and Dr. Luo’s causation opinions.
In reaching their opinions, Walton and Dr. Luo did not employ any novel scientific
evidence, theories, or methodology. Rather, their opinions were based on their experience,
training, observations, other medical providers’ opinions, and generally accepted testing. See
Graftenreed, 100 Ark. App. at 374, 268 S.W.3d at 915 (holding that the Daubert analysis was
applicable only to “novel” scientific evidence, theory, or methodology); Arrow Intern., Inc. v.
Sparks, 81 Ark. App. 42, 52, 98 S.W.3d 48, 55 (2003) (holding that the Daubert inquiry was
not applicable where the physician’s expert testimony was not based on “novel” scientific
evidence, theory, or methodology but rather on his experience and observations).
Finally, we disagree with Horton’s claim that the causation testimony of Walton and
Dr. Luo is unreliable because they solely relied on Dundee’s subjective complaints, her
history of the accident, and her “false medical history.” Walton and Dr. Luo testified that
they reached their causation opinions based on the history provided by Dundee, their
examinations of her, the results of their examinations and objective testing, their review of
other medical providers’ opinions who treated her (her physical therapist, her family
physician, and Dr. Queeney), their review of photographs of the vehicles involved in the
accident, and their review of her past medical records. We hold that this is a sufficient
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foundation for the causation opinions of Walton and Dr. Luo and that the trial court abused
its discretion in excluding their opinions. 2
However, a mere showing that the trial court made an error regarding the
admissibility of evidence will not support a reversal, absent a showing of prejudice. Olivares v.
Ark. Dep’t of Human Servs., 2013 Ark. App. 94, at 1–2. Without a showing of prejudice, any
judicial error as to the admissibility of evidence is harmless error and cannot be grounds for
disturbing a trial court’s order. Id. at 2; see also Ark. R. Civ. P. 61 (2015).
The trial court’s exclusion of the causation testimony of Dundee’s medical providers
prejudiced her. To establish a prima facie case of negligence, a plaintiff must demonstrate
that the defendant breached a standard of care, that damages were sustained, and that the
defendant’s actions were a proximate cause of those damages. Wal-Mart Stores, Inc. v. Kilgore,
85 Ark. App. 231, 236, 148 S.W.3d 754, 757 (2004). Because Horton admitted liability,
Dundee was only required to prove that she sustained damages and that Horton’s actions
were a proximate cause of those damages. However, based on the trial court’s exclusion of
the causation testimony of Walton and Dr. Luo, Dundee was precluded from presenting a
crucial element of her claim—that her injuries were caused by the accident for which Horton
admitted liability. Her treating physicians were not permitted to give their opinions that the
2Horton’s arguments go to the weight and credibility of the testimony of Walton and
Dr. Luo. “Once an expert witness is qualified, the weakness in the factual underpinning of
the expert’s opinion may be developed upon cross-examination and such weakness goes to
the weight and credibility of the expert’s testimony.” Jackson v. Buchman, 338 Ark. 467, 474,
996 S.W.2d 30, 34 (1999) (citing Suggs v. State, 322 Ark. 40, 43, 907 S.W.2d 124, 126 (1995);
Polk v. Ford Motor Co., 529 F.2d 259 (8th Cir.), cert. denied, 426 U.S. 907 (1976)). While
Horton’s arguments are fodder for cross-examination, they do not go to the admissibility of
the testimony.
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cause of her pain and need for treatment was the accident. Therefore, we hold that Dundee
was prejudiced by the trial court’s error in excluding the causation testimony of Walton and
Dr. Luo. Accordingly, we hold that the trial court abused its discretion in granting Horton’s
motions in limine excluding Walton and Dr. Luo’s causation testimony and that the error
prejudiced Dundee. We reverse and remand on this issue.
For her second point on appeal, Dundee argues that the trial court abused its
discretion in refusing to allow her to introduce into evidence a video that was shown to her
during her cross-examination. Horton’s counsel showed Dundee a video posted on her
Facebook account that purportedly showed her playing with her fourteen-month-old
grandchild. Horton’s counsel did not introduce the video into evidence or show it to the
jury. On redirect, Dundee’s counsel asked to introduce the video into evidence; however,
Horton’s counsel objected, stating that the trial court had previously granted a motion in
limine precluding the parties “from pulling things out of each other’s files.” The trial court
denied Dundee’s request to introduce the video, stating that “that is exactly like pulling
something out of somebody’s file.”
Dundee argues on appeal that the trial court abused its discretion when it refused her
request to introduce the video. She contends that the video was relevant because it showed
her physical limitations caused by the accident and that exclusion of the video was prejudicial
because it insinuated that what was depicted on the video contradicted her testimony about
her physical limitations.
Because we are reversing and remanding based on Dundee’s first point on appeal, it
is speculative whether the evidentiary issue surrounding the video will reoccur on remand.
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Therefore, we will not address the point. Bradford v. State, 325 Ark. 278, 290, 927 S.W.2d 329,
335 (1996). See also Fauna v. State, 265 Ark. 934, 936, 582 S.W.2d 18, 19 (1979) (holding that
we need not address errors alleged on appeal that are not likely to reoccur on remand).
Reversed and remanded.
GRUBER and BROWN, JJ., agree.
Chaney Law Firm, P.A., by: Don P. Chaney, Nathan Price Chaney, S. Taylor Chaney, and
Hilary M. Chaney, for appellant.
Robinson Law Firm, by: Jon P. Robinson, for appellee.
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