Arthur Galloway v. Horne Concrete Construction

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1879
ARTHUR GALLOWAY,
Plaintiff – Appellant,
v.
HORNE CONCRETE CONSTRUCTION,
Defendant – Appellee,
and
APOLLO INCORPORATED; SASA DJURIC,
Defendants.
No. 11-1898
ARTHUR GALLOWAY,
Plaintiff – Appellee,
v.
HORNE CONCRETE CONSTRUCTION,
Defendant – Appellant,
and
SASA DJURIC; APOLLO INCORPORATED,
Defendants.
Appeals from the United States District Court for the District
of Maryland, at Greenbelt. Jillyn K. Schulze, Magistrate Judge.
(8:09-cv-02274-JKS)
Argued: January 30, 2013 Decided: May 1, 2013
Before MOTZ, KING, and FLOYD, Circuit Judges.
No. 11-1879 vacated and remanded; No. 11-1898 dismissed by
unpublished per curiam opinion.
ARGUED: Gregory L. Lattimer, LAW OFFICES OF GREGORY L. LATTIMER,
Washington, D.C., for Appellant/Cross-Appellee. James S.
Liskow, DECARO, DORAN, SICILIANO, GALLAGHER & DEBLASIS, LLP,
Bowie, Maryland, for Appellee/Cross-Appellant. ON BRIEF: Erik
H. Nyce, DECARO, DORAN, SICILIANO, GALLAGHER & DEBLASIS, LLP,
Bowie, Maryland, for Appellee/Cross-Appellant.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Arthur Galloway seeks a new trial in the District of
Maryland — on damages only — concerning his negligence claim
against Horne Concrete Construction, arising from a highway
accident. Galloway contends that the district court erred at
trial by excluding a substantial portion of his damages
evidence, including his medical bills and the depositions of his
treating physicians, along with additional proof that he
suffered permanent injuries and lost future earnings. The
evidence was excluded after the court concluded that, under
Maryland law, its admission was dependent upon Galloway
presenting expert testimony to prove causation — that is, to
connect the accident to the severe back injuries for which he
was thereafter treated.
Although the jury returned a verdict against Horne,
Galloway maintains that the court’s erroneous evidentiary
rulings resulted in a reduced damages award. As explained
below, we are satisfied that expert testimony was not required
under Maryland law, that the court’s error of law caused it to
abuse its discretion by excluding Galloway’s evidence, and that
the erroneous rulings were prejudicial. Accordingly, we vacate
the damages award against Horne and remand for a new trial
exclusively on that issue.
3
I.
A.
At the time of the accident underlying this matter,
Galloway was a resident of Alabama and the owner-operator of a
Volvo tractor used for long-distance trucking. 1 Galloway worked
primarily as a contract hauler for K.C. Transport, LLC, of
Newton, Alabama. When K.C.’s trailer loads were ready to be
picked up and hauled to their destinations, it would contact
Galloway, who would handle the transit and delivery.
On September 28, 2006, Galloway was driving his tractor-
trailer south on Interstate 95 in Harford County, Maryland, just
northeast of Baltimore. At about 1:30 p.m., the traffic slowed
and Galloway came to a stop in the center lane of the highway,
behind a tractor-trailer operated by Apollo Incorporated. Sasa
Djuric, also driving an eighteen-wheel tractor-trailer, then
came to a stop behind Galloway. Djuric’s rig, however, was
struck in the rear by a dump truck driven by Horne’s employee,
who failed to stop in time. As a result, the Djuric tractor-
trailer was pushed violently into Galloway’s rig, which was in
1
The facts presented to the jury are recited in the light
most favorable to Galloway, as the prevailing party at trial.
See E.E.O.C. v. Fed. Express Corp., 513 F.3d 360, 365 (4th Cir.
2008). Additional facts drawn from the excluded evidence,
primarily the treating physicians’ depositions and medical
records, are not in dispute and are set forth accordingly.
4
turn pushed into Apollo’s. Badly damaged and later declared a
total loss by the insurer, Galloway’s tractor-trailer was towed
from the multiple-vehicle crash. 2
Galloway did not receive medical treatment at the accident
scene, and he remained overnight with his vehicle at a Maryland
salvage yard, where he began to experience severe lower back
pain. Galloway informed K.C.’s insurance adjuster early the
next morning that he needed to go to the hospital. The
adjuster, however, advised Galloway to instead return to Alabama
before seeking medical treatment. As a result, Galloway
travelled to Alabama on September 30, 2006, as a passenger on
another K.C. rig.
Soon after returning home, Galloway sought medical
treatment from his primary care physician, Dr. Smith. During
Galloway’s initial examination on October 2, 2006, he advised
Dr. Smith of the accident and complained of severe back pain.
Dr. Smith prescribed medication, recommended rest, and directed
Galloway to return in a week if his pain did not subside.
On October 9, 2006, his lower back pain having worsened,
Galloway again saw Dr. Smith. Dr. Smith’s notes from that visit
2
The five vehicles in the chain-reaction crash included,
from front to rear, a pickup truck, Apollo’s tractor-trailer,
Galloway’s tractor-trailer, Djuric’s tractor-trailer, and
Horne’s dump truck.
5
reflect that Galloway was suffering from, “[b]ack Strain. Work
Related. Happened two weeks ago.” J.A. 171. 3 Dr. Smith
prescribed more medication, but Galloway’s back pain worsened
further, and he returned for an additional consultation on
October 16, 2006. On this occasion, Dr. Smith ordered an MRI of
Galloway’s lower back, which revealed a herniated disc. Due to
his continuing back pain, Galloway was promptly referred to a
neurosurgeon.
The neurosurgeon, Dr. Cezayirli, examined Galloway on
October 25, 2006. Upon reviewing the MRI and conducting his own
physical examination, Dr. Cezayirli confirmed that Galloway was
suffering from a herniated disc. Dr. Cezayirli’s records
reflect that Galloway “was in a 18-wheeler that was struck by
another 18-wheeler from the rear and has been bothered with pain
since that time.” J.A. 170. Dr. Cezayirli determined to treat
Galloway’s injury conservatively; thus, before considering
surgery, he referred Galloway to Dr. Kelsey, a pain management
specialist.
On October 30, 2006, Dr. Kelsey examined Galloway and
observed that he had “[c]hronic lower back and right lower
extremity pain secondary to a herniated disc from a recent motor
3
Citations herein to “J.A. ____” refer to the contents of
the Joint Appendix filed by the parties in this appeal.
6
vehicle accident.” J.A. 58. Dr. Kelsey’s records further
reflect that,
[t]his is a 55 year old African American male who
comes to the Outpatient Physical Medicine Clinic at
UAB Medical West complaining of chronic lower back
pain . . . . [Galloway] sustained this in a [motor
vehicle accident] on 9/29/06 [sic] in which he was
rear-ended by a series of tractor trailers in a multi-
car collision on U.S. 95 outside of Baltimore,
Maryland.
Id. Dr. Kelsey administered a regional anesthetic to Galloway’s
lower back and prescribed physical therapy sessions twice a week
for a month. At the request of Galloway’s physical therapist,
Dr. Kelsey also prescribed a transcutaneous electrical nerve
stimulation (“TENS”) unit for in-home therapy. On November 29,
2006, Kelsey directed additional physical therapy sessions —
twice a week for three weeks — plus continuing in-home therapy
with the TENS unit. On January 22, 2007, Dr. Kelsey
administered a second regional anesthetic, but Galloway’s back
injuries failed to respond to treatment, and his severe back
pain persisted. As a result, Dr. Kelsey recommended that
Galloway return to Dr. Cezayirli for back surgery.
On June 14, 2007, Dr. Cezayirli surgically removed
Galloway’s herniated disc. The surgeon then inserted a piece of
bone into the disc space in Galloway’s lower back, using a
procedure known as a spinal fusion. After performing the spinal
7
fusion, Dr. Cezayirli again referred Galloway to Dr. Kelsey for
post-operative physical therapy.
B.
On August 27, 2009, Galloway filed his single-count
Complaint in the District of Maryland against Horne, Djuric, and
Apollo. Galloway alleged therein that the defendants’
negligence had caused his back injuries, as well as other
injuries, and he sought damages of not less than one million
dollars. On March 26, 2010, by consent of the parties, the
proceedings were referred to a magistrate judge. See 28 U.S.C.
§ 636. After the close of discovery, the defendants filed
separate summary judgment motions. On January 25, 2011, the
court awarded summary judgment to Apollo, but denied summary
judgment to Horne and Djuric.
Because Galloway’s treating physicians were in Alabama, he
prepared for trial by conducting evidentiary depositions of Drs.
Kelsey and Cezayirli on June 21, 2011. The two treating
physicians were not designated as expert witnesses, but were
identified as fact witnesses in Galloway’s discovery responses.
Soon thereafter, Horne moved in limine to exclude from
trial the testimony of Galloway’s three treating physicians. 4
4
At trial, Galloway’s lawyer apparently intended to
introduce the evidentiary depositions of Drs. Kelsey and
Cezayirli, and to present Dr. Smith as a live witness.
8
Horne argued, inter alia, that their evidence was inadmissible
because the physicians had never causally linked Galloway’s
injuries, or his need for the spinal fusion, to the September
2006 accident. Asserting a lack of proof on causation, Horne
likewise sought to exclude any evidence of lost wages and the
permanent nature of Galloway’s back injuries. Galloway opposed
Horne’s motion in limine, and the magistrate judge, on July 8,
2011, conducted a telephonic hearing thereon.
Relying on the decision of the Court of Special Appeals of
Maryland in Desua v. Yokim, the magistrate judge determined that
Galloway’s back injuries and treatments presented a complicated
medical question for which expert testimony was necessary to
prove causation, but that no such testimony had been proffered.
See 768 A.2d 56, 60 (Md. Ct. Spec. App. 2001) (citing Wilhelm v.
State Traffic Safety Comm’n, 185 A.2d 715, 719 (Md. 1962)
(requiring expert testimony to prove causation where
“complicated medical question” lies outside knowledge of
laymen)). With regard to the deposition testimony of Drs.
Cezayirli and Kelsey, the magistrate judge explained that “[t]he
issue here is whether either of them causally relates their
treatment [of Galloway] to the accident and that is the very
serious issue in this case.” J.A. 346.
The magistrate judge then ruled that Dr. Cezayirli’s
evidence would be excluded in its entirety, in that he “never
9
connect[ed] the needs for surgery or indeed any of the treatment
that he provid[ed] to this accident.” J.A. 347. Addressing the
testimony of the pain management specialist, the court explained
that “Dr. Kelsey’s treatment after the surgery is . . . not
relevant here,” but that Dr. Smith might link Dr. Kelsey’s pre-
surgery treatments to the accident. Id. at 351. Accordingly,
the court deferred ruling on the in limine motion as to Dr.
Kelsey’s pre-surgery treatments, but granted the motion entirely
as to Dr. Cezayirli. The court denied Horne’s motion in limine
as to Dr. Smith, advising that it would not be clear until trial
whether he could testify regarding causation.
Having barred from trial the admission of all evidence
relating to the spinal fusion surgery, the magistrate judge
concluded that Galloway was not entitled to claim damages for
permanent injuries, and thus agreed with Horne that he could
neither seek nor recover future lost wages. Finally, the
magistrate judge ruled that Galloway could not testify regarding
any of his medical treatments, including the spinal fusion, but
could advise the jury that he suffered back pain from the
accident and that he had sought medical care for the pain.
C.
The jury trial was conducted in Greenbelt on July 12-13,
2011, where the magistrate judge’s pretrial evidentiary rulings
prompted further discussion. For example, although Galloway was
10
barred from introducing the evidentiary depositions of Drs.
Kelsey and Cezayirli, he was allowed to testify that he had
never experienced back problems prior to the accident, and that
he suffered severe lower back pain immediately afterward.
Further, though Galloway was permitted to testify that he
secured medical treatments to alleviate his pain, the magistrate
judge had left open the question of whether and to what extent
he could describe those treatments.
Horne again objected to such evidence, however, and to any
mention of Galloway’s treating physicians. The court agreed
with Horne, as the record illustrates:
The Court: [Galloway] has personal knowledge about how
he felt. He has personal knowledge about how he feels
today. He cannot testify about his surgery because
[the surgery] has not been causally linked to this
accident. The same is true with Dr. Kelsey’s
treatment.
* * *
Mr. Lattimer: How is it that somebody can’t talk about
what happened to them? [Galloway] can’t say that he
went to a doctor?
The Court: [Galloway] can talk about his pain. That’s
the only thing [he] can casually [sic] relate to this
accident. The reason [Galloway] can do that is
because [he] can say he wasn’t in pain before the
accident. [Galloway] can say that because he knows it
from personal experience.
J.A. 449. Galloway was thus prohibited by the magistrate judge
from testifying about his back treatments, including the spinal
fusion. Galloway’s evidence relating to his other medical
11
treatments was also excluded, as were his treating physicians’
evidentiary depositions. 5
The only two witnesses who testified on Galloway’s behalf
were Galloway himself and his wife Glenda. Mrs. Galloway, who
worked as the family’s business manager, was prevented from
testifying that her husband is permanently injured, that his
income has been diminished, or that the back injury and spinal
fusion will negatively affect his future earnings. At the
conclusion of Galloway’s case-in-chief, the magistrate judge
revisited her ruling on the lost wages issue, modifying it
slightly to allow Galloway to seek lost wages through the date
of trial. Djuric and Horne then presented their respective
defenses, which consisted in Djuric’s case solely of his own
testimony, and was limited in Horne’s case to just three
witnesses. Afterward, the parties rested with no rebuttal.
Before instructing the jury, the magistrate judge further
explained her rejection of Galloway’s claim for future lost
wages, stating that “I’m not giving that instruction . . .
because I do believe that medical evidence of future inability
5
The magistrate judge thus sharply circumscribed the
testimony of Galloway and his wife, and excluded entirely the
evidentiary depositions of Drs. Kelsey and Cezayirli, plus the
exhibits to those depositions. The exhibits consisted of, inter
alia, evaluation forms, correspondence between treating
physicians, general notes, prescriptions, progress notes,
physical therapy evaluations, and extensive medical bills.
12
to work would be required to support an instruction in that
area.” J.A. 627. Accordingly, the verdict form authorized only
three types of damages: (a) past lost wages (through the date of
trial); (b) past non-economic damages, including pain and
suffering (through the date of trial); and (c) future non-
economic damages.
The jury found Horne liable to Galloway on his negligence
claim — thereby finding that Horne had caused Galloway’s
injuries — but found in favor of Djuric. Despite the
evidentiary limitations imposed at trial, the jury assessed
$125,000 in damages against Horne. 6 On July 15, 2011, judgment
was entered accordingly and, on August 13, 2011, Galloway
noticed this appeal. On August 18, 2011, Horne filed a cross-
appeal, which it now seeks to withdraw. 7 We possess jurisdiction
pursuant to 28 U.S.C. § 1291.
6
The breakdown of the jury’s damages award, as reflected on
the verdict form, was as follows: $80,000 for past lost wages;
$40,000 for past non-economic damages, including pain and
suffering, through the date of trial; and $5,000 for future non-
economic damages.
7
In its response brief, Horne requested that we authorize
the withdrawal of its cross-appeal. We are satisfied to grant
that request and hereby dismiss Horne’s cross-appeal, which is
docketed and consolidated as Appeal No. 11-1898.
13
II.
Generally, we review for abuse of discretion a trial
court’s rulings on the admissibility of evidence. See Bryte ex
rel. Bryte v. American Household, Inc., 429 F.3d 469, 475 (4th
Cir. 2005). Notably, an error of law made by a trial court
constitutes an abuse of its discretion. See Dixon v. Edwards,
290 F.3d 699, 718 (4th Cir. 2002). More precisely, the question
of whether a personal injury dispute presents a “complicated
medical question” necessitating expert testimony, see Wilhelm v.
State Traffic Safety Comm’n, 185 A.2d 715, 719 (Md. 1962),
involves an interpretation of state law, which we review de
novo. See Bryte, 429 F.3d at 475.
III.
A.
Galloway challenges only the amount of the judgment and
seeks a new trial in that regard, arguing that the magistrate
judge’s evidentiary rulings precluded the jury from properly
evaluating his damages. We are obliged to apply the substantive
law of Maryland, and we must decide the matter as that state’s
highest court — the Court of Appeals of Maryland — would decide
it. See Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d
505 (4th Cir. 1999). The magistrate judge’s disputed rulings
were premised on her view that, under Maryland law, Galloway’s
14
claim presented a complicated medical question that required
expert testimony to establish his entitlement to certain
categories of damages.
In the seminal case of Wilhelm v. State Traffic Safety
Commission, 185 A.2d 715, 719 (Md. 1962), the Court of Appeals
of Maryland made clear that when a personal injury claim
involves a “complicated medical question” that “falls within the
province of medical experts,” expert testimony must be presented
to the fact-finder to connect the injuries to the alleged
negligent act. 8 The court nevertheless recognized that “[t]here
are . . . many occasions where the causal connection between a
defendant’s negligence and a disability claimed by a plaintiff
does not need to be established by expert testimony.” Id.Expert testimony is not required, as Wilhelm further explained,
if the case falls into one of three categories: (1) if “a
disability develops coincidentally with,” or within a
“reasonable time after,” the subject act; or (2) if the proof of
causation is “clearly apparent” from the nature and
circumstances of the injury; or (3) if “the cause of the injury
relates to matters of common experience, knowledge, or
observation of laymen.” Id.8
In Shpigel v. White, 741 A.2d 1205, 1212 (Md. 1999),
Maryland’s high court described Wilhelm as “[t]he seminal case”
in Maryland on the need for expert testimony in tort cases.
15
Put succinctly, this dispute qualifies under each of
Wilhelm’s three categories of cases where experts are
unnecessary. First, Galloway’s back injuries developed
coincidentally with and immediately after Horne’s negligence.
Second, causation was “clearly apparent” from the nature and
circumstances of his injuries. Finally, under the evidence, the
cause of Galloway’s back injuries was shown to be the wreck on
I-95, and a reasonable jury could so find by using its “common
experience, knowledge, [and] observation.” Wilhelm, 185 A.2d at
719. In short, no experts are needed to establish that being
rear-ended by an eighteen-wheel tractor-trailer in a multi-
vehicle interstate accident can cause lower-back injuries.
In Wilhelm, where the plaintiff was injured in a rear-end
collision, the court of appeals deemed expert testimony
necessary to prove the causal nexus between the collision and
emotional disturbances of the plaintiff. Importantly, however,
the court recognized that an expert was not necessary to make a
separate causal connection — between a bruise on the plaintiff’s
forehead and the subsequent depigmentation of her skin in the
same area. In discussing the forehead injury, the court
explained that “common experience, knowledge and observation of
laymen” authorized the jury to infer that the collision caused
the injury. Id. at 719.
16
Wilhelm has since been applied by the Maryland courts to
require, inter alia, expert testimony to establish the causal
connection between vaccinations given during infancy and a
diagnosis of autism made several years thereafter. See Aventis
Pasteur, Inc. v. Skevofilax, 914 A.2d 113 (Md. 2007).
Skevofilax, perhaps, is the paradigmatic example of a case
presenting a complicated medical question. On the other hand, a
plaintiff was not required to prove causation by expert evidence
when she drank from a spigot and developed chemical burns in her
mouth immediately thereafter. See Vroom v. Arundel Gas Co., 278
A.2d 563 (Md. 1971). Similarly, when seeking release from
commitment, a person suffering a mental disorder was not
required to present expert testimony to prove that he would not
be a danger to himself or others. See Bean v. Dep’t of Health
and Mental Hygiene, 959 A.2d 778 (Md. 2008).
In the context of an automobile accident, the Maryland high
court has required expert testimony concerning whether the
accident caused, six weeks later, the partial paralysis of a
hand. See Craig v. Chenoweth, 194 A.2d 78 (Md. 1963).
Conversely, in Schweitzer v. Showell, Maryland’s intermediate
appellate court found a sufficient causal connection, without
any expert testimony on causation, between a vehicle accident
and the buckling of the plaintiff’s knee fourteen months
thereafter. See 313 A.2d 97 (Md. Ct. Spec. App. 1974).
17
In Desua v. Yokim, 768 A.2d 56 (Md. Ct. Spec. App. 2001),
the decision on which the magistrate judge relied, the
intermediate appellate court concluded that expert testimony was
essential to establishing that a soft-tissue neck injury had
been caused by a vehicle accident. The court emphasized the
disparity between damages to the vehicle — concededly “a
relatively simple, rear-end accident” — and the claimed personal
injury, as well as the eighteen-day delay between the
plaintiff’s emergency room visit and her first appointment with
a treating physician. Id. at 61.
By contrast, Galloway’s crash on I-95, involving three
tractor-trailers and a large dump truck, was a force-laden event
that was reasonably likely to injure those involved. For
example, it was shown that Galloway’s vehicle was a total loss,
and that he promptly sought medical treatment for his back
injuries. And, unlike the soft tissue injury in Desua,
Galloway’s herniated disc was objectively observable, was
diagnosed by way of an MRI, and resulted in a spinal fusion.
Put simply, this case involves an over-the-road tractor-
trailer driver — plaintiff Galloway — who had never suffered
from or complained of back pain, but who was injured in a
violent multi-vehicle accident. Galloway developed lower back
pain immediately thereafter, and he promptly reported his
injuries to his treating physicians, who engaged in a course of
18
treatments and then diagnosed his herniated disc. Ultimately,
Galloway’s back injuries could only be resolved through major
surgery, a spinal fusion. In these circumstances, the evidence
was plentiful for a reasonable jury to conclude — as it did —
that the Maryland accident caused Galloway’s injuries. Because
the court erred as a matter of law in ruling that expert
testimony was necessary, it abused its discretion by excluding
Galloway’s proffered damages evidence.
B.
Horne’s primary contention at oral argument — without
conceding its other positions — was that any evidentiary errors
made by the magistrate judge were harmless. The excluded
medical bills alone, however, for which Galloway is surely
entitled to recover, belie Horne’s assertion. Those bills,
which, according to Galloway’s counsel, amount to approximately
$120,000, would help lay the foundation for a calculation of
future damages far beyond the $5,000 actually awarded by the
jury here. See supra note 6.
In any event, we need not identify with certainty how the
jury’s assessment of damages was influenced by the magistrate
judge’s exclusion of Galloway’s evidence. More to the point,
“when a jury’s damages award itself indicates so strongly that
the error substantially influenced the jury’s verdict, the error
cannot be dismissed as harmless under Rule 61 of the Federal
19
Rules of Civil Procedure.” Sasaki v. Class, 92 F.3d 232, 237
(4th Cir. 1996). Here, a comparison of the relatively small
$125,000 verdict and the relatively large sum of $120,000 in
excluded medical bills is more than sufficient to conclude that
the erroneous evidentiary rulings substantially influenced the
jury’s verdict, and therefore were not harmless. The point
becomes even more apparent in consideration of the undeniable
probability that the excluded medical bills and other evidence
resulted in a reduction of Galloway’s award for future pain and
suffering. 9
IV.
Pursuant to the foregoing, we vacate the judgment of the
district court and remand for a new trial on damages only. We
also dismiss the cross-appeal noticed by Horne.
No. 11-1879 VACATED AND REMANDED
No. 11-1898 DISMISSED
9
Because the erroneous evidentiary rulings were not
harmless, we must assess whether our remand for a new trial
should be limited to damages only. Although neither party has
addressed that issue on appeal, it is established that “errors
relating to damage awards do not require reversal of liability
determinations if the two issues are not inextricably
interwoven.” Sasaki, 92 F.3d at 238. Notably, Horne
acknowledges that “liability for the accident is not contested
on appeal,” Br. of Appellee 4, and the verdict form required the
jury to separately assess the questions on liability and
damages. We are satisfied that the erroneous evidentiary
rulings are not inextricably interwoven into the verdict on
Horne’s liability, and we thus remand for a damages trial only.
20