Warren v. Tastove

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
May 30, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
R OSW E LL T. WA R REN ,
Plaintiff-Appellant,
v. No. 06-3198
(D.C. No. 05-CV-1141-W EB)
CO DY LYN N TA STOVE, (D . Kan.)
Defendant-Appellee.
OR D ER AND JUDGM ENT *
Before BR ISC OE, M cKA Y, and GORSUCH, Circuit Judges.
In M ay 2003, Cody Tastove’s vehicle hit a tractor trailer operated by
Roswell W arren, a commercial truck driver. Nearly two years later, M r. W arren
had surgery on his left shoulder to repair a torn rotator cuff and shortly thereafter
filed this negligence action against M r. Tastove in federal court based on
diversity of citizenship. At trial, M r. Tastove conceded liability and put on no
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
witnesses; M r. W arren presented testimony from himself and the physician who
performed his shoulder surgery, Eric E. Frische. After trial, the jury awarded
M r. W arren $18,600 for past economic losses, but nothing for future economic
losses and nothing for noneconomic injuries or medical expenses. Disappointed
with this result for he had sought damages in excess of $100,000, M r. W arren
appeals to us.
The only proposition for reversal fairly advanced by M r. W arren concerns
the exclusion of a portion of Dr. Frische’s proffered testimony. 1 Dr. Frische
appeared by means of his videotaped deposition and the bulk of that deposition
was shown to the jury without objection. The district court, however, precluded
M r. W arren from presenting a brief portion of the deposition in which Dr. Frische
testified that “it would be unwise for [plaintiff] to resume driving an eighteen-
wheeler due to the limitation of his left arm function.” A plt. App. at 15. This
exclusion, M r. W arren tells us, dealt a decisive blow to his claims for future
economic losses and was predicated on error.
1
Along the way, M r. W arren briefly attributes other errors to the district court but
develops only this argument in any detail. See Br. at 2. His other summary
assertions of error fail to afford us a sufficient basis to provide meaningful
appellate review. See United States v. Banks, 451 F.3d 721, 728 (10th Cir. 2006);
Phillips v. Hillcrest M ed. Ctr., 244 F.3d 790, 800 n.10 (10th Cir. 2001).
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W e review the district court’s decision to admit or exclude evidence,
including expert testimony, for an abuse of discretion. Ralston v. Smith &
Nephew Richards, Inc., 275 F.3d 965, 968-69 (10th Cir. 2001). “A pplying this
standard, we will reverse the district court only if it made a clear error of
judgment or exceeded the bounds of permissible choice in the circumstances.”
M endelsohn v. Sprint/United M gmt. Co., 466 F.3d 1223, 1226 (10th Cir. 2006)
(quotation omitted). Plaintiff bears the burden of establishing that the district
court committed clear error or exceeded the bounds of permissible choice. See
Hernandez v. Starbuck, 69 F.3d 1089, 1093 (10th Cir. 1995).
Although it is clear from M r. W arren’s brief that he disagrees with the
partial exclusion of Dr. Frische’s testimony, he fails to come to grips with the
reasons offered by the district court for its decision, let alone convince us an
abuse of discretion took place. The district court excluded the testimony at issue
on two grounds. First, it indicated that plaintiff had failed to identify any aspects
of Dr. Frische’s education, training, or experience that would qualify him to offer
an admissible opinion on whether M r. W arren’s injury precluded him from
pursuing his vocation as a truck driver. See Op. at 3-4; Tr. at 15-16. Second, the
district court was troubled by the equivocation and lack of explanation in D r.
Frische’s testimony. Rather than supply an opinion to a reasonable degree of
medical certainty based on specified medical grounds, the district court described
Dr. Frische’s proffered opinion as more akin to personal speculation and reliant
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on possibilities and surmise rather than reasonable medical probabilities. Id.Both of these bases for exclusion find support in the applicable rules and
our case law. Rule 702 of the Federal Rules of Evidence imposes on the
proponent of expert testimony the burden of showing that the proffered witness is
indeed able, by dint of education, training, or experience, to offer a meaningful
opinion on the issue at hand. M r. W arren supplies us, as he supplied the district
court, with no reason to think that Dr. Frische had a background sufficient for him
to opine on M r. W arren’s vocational prospects; this is sufficient reason to support
his exclusion. See LifeWise M aster Funding v. Telebank, 374 F.3d 917, 928 (10th
Cir. 2004) (holding that district court did not abuse its discretion in concluding
that witness lacked qualifications to render expert testimony); Ralston, 275 F.3d
at 971 n.4 (explaining that proponent of expert testimony bears burden of
demonstrating expert’s qualifications). 2 Likewise, we require an opining
physician to offer an opinion with a reasonable degree of medical certainty; a
hunch, even an educated hunch, is not enough. Dr. Frische testified only that it
would be “unwise” for M r. W arren to drive tractor trailers and offered no basis
for his opinion. Under these circumstances, we are unable to disagree with the
district court’s holding that Dr. Frische’s testimony fails to satisfy our demanding
standard, let alone that the court’s decision exceeded the bounds of legally
2
To be clear, the doctor may have such a background; we hold only that M r.
W arren failed to establish it in the record before us.
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permissible choices before it. See G oebel v. Denver and Rio G rande Western
R.R. Co., 215 F.3d 1083, 1088 (10th Cir. 2000) (“It is axiomatic that an expert, no
matter how good his credentials, is not permitted to speculate.”); Eastridge Dev.
Co. v. Halpert Assocs., Inc., 853 F.2d 772, 783 (10th Cir. 1988) (holding that trial
court did not abuse its discretion in excluding “tentative and speculative” expert
opinion).
Affirmed.
Entered for the Court
Neil M . Gorsuch
Circuit Judge
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