Ricky Koch, et al v. Tote, Incorporated

Filing

PUBLISHED OPINION FILED. [15-30811 Affirmed ] Judge: EHJ , Judge: JLD , Judge: ECP Mandate pull date is 07/03/2017 [15-30811]

Case: 15-30811

Document: 00513990955

Page: 1

Date Filed: 05/12/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-30811

United States Court of Appeals
Fifth Circuit

FILED
May 12, 2017

RICKY KOCH; SUSAN KOCH,

Lyle W. Cayce
Clerk

Plaintiffs - Appellees
AMERICAN INTERSTATE INSURANCE COMPANY,
v.

Intervenor

UNITED STATES OF AMERICA,
Defendant - Appellant

Appeal from the United States District Court
for the Eastern District of Louisiana
Before JONES, DENNIS, PRADO, Circuit Judges.
JAMES L. DENNIS, Circuit Judge:
Plaintiff Ricky Koch fell and suffered personal injuries while aboard the
S.S. Altair, a public vessel owned by the United States and operated by its
agents. Koch, a 54 year-old foreman and employee of Economy Iron Works,
was inspecting the vessel in connection with his employer’s bidding on repair
work on the vessel. Koch and his wife, Susan Koch, brought this action in
federal district court against the Government under the third-party liability
provision of the Longshore and Harborworkers’ Compensation Act (LHWCA),

Case: 15-30811

Document: 00513990955

Page: 2

Date Filed: 05/12/2017

No. 15-30811
33 U.S.C. § 905(b). 1 Following a bench trial, the district court determined that
negligence attributable to the Government—failure to provide adequate
lighting of a stairwell—was the factual and legal cause of Koch’s fall, resulting
harm, and permanent disability and awarded the Kochs $2.83 million in
damages. The Government filed a timely notice of appeal. See FED. R. APP. P.
4(a)(1)(B). This court has jurisdiction under 28 U.S.C. § 1291.
I
A
The Government contends that, prior to his February 2, 2012 accident,
Koch had become disabled by his painful chronic osteoarthritis in both his
knees, as well as the degenerative disc disease in his cervical spine and carpal
tunnel syndrome. Although Koch’s preexisting conditions are undisputed,
the district court rejected the Government’s argument that Koch had been
disabled by them prior to his accident. We affirm this factual finding by the
district court as not clearly erroneous for the reasons set forth in detail later
in this opinion. At this point, in the interest of chronological clarity, we set
forth briefly the evidence of Koch’s developing osteoarthritic knee and spinal
diseases prior to his accident, as follows:
In 2002, Dr. Richard Corales diagnosed Koch as suffering from
degenerative disc disease. In 2004, Koch was diagnosed with multiple joint
arthritis by Dr. Terry Habig who referred him to a rheumatologist. In 2005,
Dr. Merlin Wilson, a rheumatologist, diagnosed Koch with generalized
osteoarthritis and concluded that he needed total knee replacement. In
The district court had jurisdiction under its admiralty jurisdiction. 28 U.S.C. § 1333.
The applicable waiver of sovereign immunity is the Public Vessels Act, 46 U.S.C. §§ 31101–
31113.
1

2

Case: 15-30811

Document: 00513990955

Page: 3

Date Filed: 05/12/2017

No. 15-30811
December 2007, Koch saw Dr. Miranne, who recorded that Koch had a history
of “progressive lower back pain for many years” and documented, inter alia,
carpal tunnel syndrome. In January 2008, Dr. Lucien Miranne performed
cervical spine fusion surgery of Koch’s C3-4 and C4-5. In January 2009, Koch
was seen by Dr. Lockwood Ochsner, who said he considered doing bilateral
total knee replacement. In January 2012, Dr. Wilson saw Koch again and
noted that he needed total knee replacement surgery “in the worst way.”
B
On February 2, 2012, Koch boarded the S.S. Altair, a public vessel in
reserve status owned by the United States Maritime Administration. Along
with six other

contractor

representatives,

Koch participated in

a

“walkthrough” of the vessel in order to submit a bid for his company on areas
of the vessel in need of repair. The chief engineer of the Altair directed the
walkthrough. The contractor group eventually arrived at a stairwell leading
down to the winch room, a small compartment that housed the vessel’s
eductor system. The chief engineer flipped the light switch at the top of the
stairwell, but the fluorescent lights did not fully illuminate the area. The
engineer led the contractor group down the stairwell, which became
progressively darker.

While some contractors used flashlights to help

illuminate their descent, Koch held on to the handrails with both hands.
However, he missed the last step in the dark and fell backwards, striking his
head, neck, and shoulders on the bulkhead. He sat down while the other
contractors inspected the winch room. Koch then continued with the group’s
walkthrough of the Altair.

However, Koch did not complete a second

walkthrough of another vessel, but instead returned to his office. After filling

3

Case: 15-30811

Document: 00513990955

Page: 4

Date Filed: 05/12/2017

No. 15-30811
out an accident report, Koch remained in the office for the rest of the day. A
colleague drove him home, where his wife found him immobile on a recliner.
Essentially incapacitated and experiencing severe pain in his knees,
neck, and back, Koch remained at home, unable to return to work. When his
symptoms did not improve after a few days of rest, he went to an urgent care
clinic. The doctor at the clinic instructed Koch to follow up with a specialist;
Koch saw Dr. Simon Finger, an orthopedic surgeon. Dr. Finger noted Koch’s
history of osteoarthritis in his knees but concluded that the February 2, 2012
shipboard fall exacerbated his preexisting osteoarthritic conditions and caused
the urgent necessity for surgical bilateral knee replacements.
Prior to performing a knee replacement, however, Dr. Finger instructed
Koch to see a neurosurgeon for his neck symptoms that had manifested after
the fall. Koch saw Dr. Lucien Miranne, a neurosurgeon who had previously
performed an anterior cervical discectomy and fusion at his C3-4 and C4-5
vertebrae in his neck in January 2008. Dr. Miranne concluded that Koch
herniated his C6-7 disc as a result of the February 2, 2012 fall and aggravated
his cervical spondylosis in his C5-6 discs. Dr. Miranne recommended and
performed an anterior cervical discectomy and fusion at C5-6 and C6-7 on Koch
on August 17, 2012.
Following this cervical spine surgery, Koch had post-surgical
complications, including carpal tunnel problems in his hands. Although Koch
had mild carpal tunnel prior to the fall, Dr. Miranne noted that the carpal
tunnel condition was worsened by Koch’s neck problems associated with his C6
and C7 nerve roots. On April 30, 2013, Dr. Miranne performed a right carpal
tunnel release on Koch.

4

Case: 15-30811

Document: 00513990955

Page: 5

Date Filed: 05/12/2017

No. 15-30811
Koch’s symptoms, including severe pain in his neck, shoulders, arms,
and hands, worsened after the August 17, 2012 surgery.

Dr. Miranne

concluded that because of Koch’s persisting pain and discomfort, additional
surgery was required, consisting of a posterior approach cervical fusion. 2 Dr.
Miranne explained that he had not used the posterior approach in the first
place because it is more painful and usually requires longer hospitalization
than the anterior approach. Dr. Miranne recommended that Koch first have
and recover from the knee replacements before undergoing the posterior
cervical surgery. On July 14, 2014, Dr. Finger performed a right total knee
replacement. At the time of trial, Koch was scheduled to have the left knee
replacement as soon as he had fully recovered from the first knee replacement.
Dr. Miranne also recommended that Koch undergo a left carpal tunnel release.
C
In May 2013, the Kochs filed suit against the Government for damages
for past and future medical care, lost wages, and pain and suffering. They
alleged that the Government was liable due to its negligence in failing to
provide a safe work place and adequate lighting on the vessel. Following a
three-day bench trial, the district court determined that the Government’s
negligence in failing to provide adequate lighting above the stairwell was the
factual and legal cause of Koch’s accidental fall, his injuries, the exacerbation
of his preexisting conditions, and his disability. Koch v. United States, No.
CIV. A. 13-205, 2015 WL 4129312 (E.D. La. July 7, 2015).

Dr. Miranne testified that posterior approach cervical fusion surgery requires
removing bone or portions of a herniated disc to relieve Koch’s neck and arm pain and the
use of mass screws and rods to hold the vertebrae in place and provide stability.
2

5

Case: 15-30811

Document: 00513990955

Page: 6

Date Filed: 05/12/2017

No. 15-30811
Koch’s supervisor, Robert Barbalich, Jr. of Economy Iron Works,
testified that he knew of Koch’s health issues prior to the accident, but that
they never impacted his ability to work as a foreman and that he did not
have mobility issues on the job.

Barbalich expected Koch to work for

another five to ten years before retiring. Dr. Miranne testified that Koch
had returned to work without restrictions following the successful 2008
anterior cervical discectomy and fusion.

Dr. Wilson, a rheumatologist,

testified that when he saw Koch in January 2012 Koch said that he had
worked continuously and was able to perform all of his job duties and daily
living activities. Koch testified that prior to the fall he had no plans to have
knee replacement surgery and had no limitations or restrictions on account
of his knees or neck. Susan Koch testified that prior to the accident Koch
was very active at home; he replaced the kitchen cabinets, vaulted the
ceiling in their bedroom, mowed the lawn regularly, and tended to their
garden. After the accident, Koch could no longer sleep in a normal bed and
the couple can no longer enjoy an active social life. She testified that the
stress of working full time and caring for her husband had taken its toll on
her and their relationship. Koch’s treating surgeons, Drs. Miranne and
Finger, testified that Koch’s fall caused his injuries, exacerbation of
preexisting conditions, and disability and that all of his subsequent
surgeries were necessitated by that accident. Dr. Finger testified that more
likely than not Koch will need revision surgeries to both knees within the next
fifteen to thirty years. Dr. Miranne testified that even if Koch had successful
knee replacements with Dr. Finger and a successful posterior approach
cervical fusion surgery, it is more likely than not that he will never be able to

6

Case: 15-30811

Document: 00513990955

Page: 7

Date Filed: 05/12/2017

No. 15-30811
return to any type of gainful employment due to the injuries sustained in his
fall.
The district court award of damages to the Kochs of $2.83 million,
including $1.3 million for Koch’s pain and suffering. In its findings of fact,
the district court stated:
Prior to February 2, 2012, and despite multiple pre-existing
injuries, Mr. Koch was an active, convivial man who enjoyed
going to work. Although he frequently experienced pain while
working, particularly in his knees, Mr. Koch performed his
work activities with vigor and without restriction since at
least 2010. . . . Mr. Koch was equally active at home. He
mowed the lawn. He fixed the plumbing. He updated the
kitchen cabinets. He removed the bedroom ceiling and
reinstalled it. He even undertook to modify the drainage
system in his home, which involved digging up the bulkhead,
replacing existing pipe, and placing gravel rocks on top of the
drain pipe.
Id. at *3–4. The district court found that “[a]s a result of the injuries he
sustained on February 2, 2012 and the treatment he has received and will
receive for those injuries, Mr. Koch will never work again.”

Id. at *3

(footnote omitted).
II
On appeal, the Government argues that: (1) the district court applied
the wrong legal standard applicable to cases in which the injured plaintiff had
a diagnosed preexisting medical condition; (2) the district court erred in
holding that the accident was the sole cause of Koch’s damages; and (3) the
district court abused its discretion in limiting the testimony of the
Government’s expert witness, Dr. William Hagemann, an orthopedic surgeon.

7

Case: 15-30811

Document: 00513990955

Page: 8

Date Filed: 05/12/2017

No. 15-30811
A
We review de novo the legal determinations of the district court after a
bench trial.

Seal v. Knorpp, 957 F.2d 1230, 1234 (5th Cir. 1992). In

determining that the Kochs are entitled to recover for all of Koch’s harm and
disability, without any discount or reduction because of Koch’s preexisting
osteoarthritic knee and degenerative spinal conditions, the district court
applied the principles set forth in Maurer v. United States, 668 F.2d 98, 99–
100 (2d Cir. 1997):
It is a settled principle of tort law that when a defendant’s
wrongful act causes injury, he is fully liable for the resulting
damage even though the injured plaintiff had a preexisting
condition that made the consequences of the wrongful act more
severe than they would have been for a normal victim. The
defendant takes the plaintiff as he finds him. See, e. g., Evans v.
S. J. Groves & Sons Co., 315 F.2d 335, 347–48 (2d Cir. 1963)
(Friendly, J.); United States Fidelity & Guaranty Co. v. United
States, 152 F.2d 46, 49 (2d Cir. 1945) (L. Hand, J.); The Jefferson
Myers, 45 F.2d 162 (2d Cir. 1930) (per curiam). A plaintiff’s
recovery for damages caused by a defendant’s wrongful act may
not be proportionately reduced because of a preexisting weakness
or susceptibility to injury such as an osteoarthritic condition or a
weakness caused by a previous injury. See, e.g., United States
Fidelity & Guaranty Co. v. United States, supra (congenital spine
defect); Buchalski v. Universal Marine Corp., 393 F. Supp. 246,
248 (W.D. Wash. 1975) (preexisting weakness of lower back from
prior injury that had stabilized at a nondisabling level).
However, there are two exceptions to the general rule. First,
when a plaintiff is incapacitated or disabled prior to an accident,
the defendant is liable only for the additional harm or
aggravation that he caused. Evans v. S. J. Groves & Sons Co.,
supra, 315 F.2d at 347. Second, when a plaintiff has a preexisting
condition that would inevitably worsen, a defendant causing
subsequent injury is entitled to have the plaintiff’s damages
8

Case: 15-30811

Document: 00513990955

Page: 9

Date Filed: 05/12/2017

No. 15-30811
discounted to reflect the proportion of damages that would have
been suffered even in the absence of the subsequent injury, but
the burden of proof in such cases is upon the defendant to prove
the extent of the damages that the preexisting condition would
inevitably have caused. Id. at 348.
Applying the foregoing principles, the district court concluded that,
because the defendant’s negligent failure to safely illumine the stairwell was
the factual and legal cause of Koch’s accidental fall and its disabling
consequences, the Government is fully liable for his resulting harm and
disability, even though Koch’s preexisting conditions made the consequences
of the Government’s negligence more severe than they would have been for an
ordinary victim. The district court found that neither of the exceptions to this
general rule articulated in Maurer applies in the present case. The court found
that the first exception does not apply because Koch was not disabled or
incapacitated before the accident 3; and that the second exception does not apply
here because the Government did not carry its burden to prove the extent, if
any, of the damages that the preexisting conditions would inevitably have
caused even in the absence of the accident. 4 We see no error in the district
court’s application of the well-settled principles set forth in Maurer.
The Government contends, however, that Maurer is inapplicable because
it is an “eggshell skull” plaintiff case, and that the “eggshell skull” concept
applies only if the plaintiff’s preexisting condition was completely latent and
had not manifested itself prior to the plaintiff’s accident caused by the
defendant. This argument is not meritorious. Maurer itself involved a plaintiff

See Koch v. United States, 2015 WL 4129312, *3–4.
Id. at *6 (“The evidence presented at trial does not establish that any of the injuries
of which Mr. Koch complains were inevitable.”).
3
4

9

Case: 15-30811

Document: 00513990955

Page: 10

Date Filed: 05/12/2017

No. 15-30811
who suffered from already manifested “preexisting degenerative back
condition (osteoarthritis)” and an unspecified injury in a prior accident. 668
F.2d at 99. Moreover, the Government cites no authority for limiting the “thin
skull” or “eggshell skull” rule—described often as the “defendant takes the
victim as found” rule—to cases involving only latent or unmanifested
preexisting conditions. This court and district courts within our circuit have
expressed approval and acceptance of the “thin skull,” “eggshell skull,” or
“defendant takes the victim as found” rule without limiting its application to
latent or unmanifested preexisting conditions. See Dahlen v. Gulf Crews, Inc.,
281 F.3d 487, 495 (5th Cir. 2002); Dunn v. Denk, 54 F.3d 248 (5th Cir. 1995);
Cutchall v. Cal Dive Int’l, Inc., No. CV 12-1291, 2013 WL 12107569, at *1 (E.D.
La. Apr. 2, 2013); Johnson v. Cenac Towing, Inc., 599 F. Supp. 2d 721, 730
(E.D. La. 2009); Laakso v. Mitsui & Co. USA, No. CIV. A. 88-2450, 1989 WL
149186, 1990 A.M.C. 635, 645 (E.D. La. Dec. 6, 1989); Curtis v. Shivers, 674 F.
Supp. 1237, 1239 (E.D. La. 1987). 5
Henderson v. United States, 328 F.2d 502 (5th Cir. 1964), the case relied upon by the
Government, is inapposite. In that case, the plaintiff, a civilian, was injured when a
Government agent negligently backed a truck into him on June 18, 1961. The district court
found that plaintiff’s preexisting osteoarthritic lumbar condition was aggravated as a
consequence of the negligence of the Government but that he suffered little or no pain
immediately. Although he did experience some pain beginning in early July, his pain did not
become severe and disabling until he suffered a second injury to his back on September 12,
1961, without fault or negligence on the part of the Government. Because the Government
was in no way responsible for plaintiff’s second, more serious back injury the district court
awarded him only $5,000 for his June 18 injury. This court affirmed, stating as a general
rule that where there is a subsequent injury, if the subsequent event is attributable to a
distinct intervening cause, the wrongdoer is held to be liable only for the original injury. As
the district court, after weighing the evidence as a whole, apparently concluded that the
aggravation caused by the negligence of the Government in June 1961 was not a contributing
factor to the injuries occurring in September 1961, the Court of Appeals concluded that it
could not say that the district court’s findings and conclusion were clearly erroneous. Id. at
505. Henderson’s facts are clearly distinguishable from the present case, because here there
5

10

Case: 15-30811

Document: 00513990955

Page: 11

Date Filed: 05/12/2017

No. 15-30811
Indeed, we have found no reported case so limiting the rule. Further,
although we are not bound by the major torts treatises or the American Law
Institute’s Restatement of Torts, it is significant that none of them recognizes
such a limitation on the rule. See, e.g., W. PAGE KEETON ET. AL., PROSSER AND
KEETON ON TORTS § 43, at 291–92 (5th ed. 1984); DAN B. DOBBS ET. AL., THE
LAW OF TORTS § 206, at 711–13 (2d ed. 2011); RESTATEMENT (THIRD) OF TORTS
§ 31 (AM. LAW INST. 2010). For example, the Restatement (Third) of Torts, § 31
provides that:
When an actor’s tortious conduct causes harm to a person that,
because of a preexisting physical or mental condition or other
characteristics of the person, is of a greater magnitude or different
type than might reasonably be expected, the actor is nevertheless
subject to liability for all such harm to the person.
Section 31’s Reporter’s Note further states:
Every United States jurisdiction adheres to the thin-skull rule;
more precisely, extensive research has failed to identify a single
United States case disavowing the rule . . . . The essence of this
rule prevents a defendant from seeking to avoid or reduce liability
because some characteristic of the plaintiff, however unusual,
combines with the tortious conduct of the defendant to produce
physical or emotional harm that is greater than might be expected,
unusual, or unforeseeable.
Id.
For these reasons, we conclude that the district court did not apply the
wrong legal standard in this case with regard to Koch’s preexisting medical
conditions.

was a single accident that resulted in totally disabling harm; there was no second accident
or intervening injury.

11

Case: 15-30811

Document: 00513990955

Page: 12

Date Filed: 05/12/2017

No. 15-30811
B
The Government argues that the totality of the medical evidence
demonstrates that Koch’s preexisting conditions of spinal degenerative disease
and osteoarthritic disease of his knees had caused him to become disabled prior
to his fall on the Altair so that the district court’s findings of facts to the
contrary are clearly erroneous and should be vacated. 6
Because a finding of disability vel non is a finding of fact, the standard
governing appellate review of a district court’s finding of disability or lack
thereof is that set forth in Federal Rule of Civil Procedure 52(a): “Findings of
fact, whether based on oral or other evidence, must not be set aside unless
clearly erroneous, and the reviewing court must give due regard to the trial
court’s opportunity to judge the witnesses’ credibility.” The question before us,
then, is whether the district court’s failure to find that Koch was disabled prior
to his accident was clearly erroneous.
The general principles governing the exercise of our power to overturn
factual findings of a district court may be derived from the Supreme Court’s
cases and our own cases. “The foremost of these principles . . . is that “[a]
finding is ‘clearly erroneous’ when although there is evidence to support it, the

The Government’s brief initially states that that the district court erred in holding
that the accident was the “sole cause” of Koch’s damages. Such an argument is meritless
because the district court clearly did not find that Koch’s accident was the “sole cause” of his
resulting harm and disability. Rather, the district court found that the combination of his
accident with its exacerbation of his preexisting conditions was the cause in fact and legal
cause of his harm and disability. The somewhat more persuasive argument that the
Government makes is that Koch had been rendered disabled by his preexisting conditions
before his 2012 accident. This argument, too, is meritless, but it requires that we consider
all of the evidence to determine whether the district court clearly erred in finding Koch was
not disabled by his preexisting conditions prior to his accident.
6

12

Case: 15-30811

Document: 00513990955

Page: 13

Date Filed: 05/12/2017

No. 15-30811
reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.” Anderson v. City of Bessemer
City, 470 U.S. 564, 573 (1985) (quoting United States v. U.S. Gypsum Co., 333
U.S. 364, 395 (1948)). “This standard plainly does not entitle a reviewing court
to reverse the finding of the trier of fact simply because it is convinced that it
would have decided the case differently. The reviewing court oversteps the
bounds of its duty under Rule 52(a) if it undertakes to duplicate the role of the
lower court.” Id.
Thus “[i]f the district court’s account of the evidence is plausible in light
of the record viewed in its entirety, the court of appeals may not reverse it even
though convinced that had it been sitting as the trier of fact, it would have
weighed the evidence differently. Where there are two permissible views of the
evidence, the factfinder’s choice between them cannot be clearly erroneous.” Id.
at 573–574 (citing United States v. Yellow Cab Co., 338 U.S. 338, 342 (1949)).
Similarly, “when a trial judge’s finding is based on his decision to credit the
testimony of one of two or more witnesses, each of whom has told a coherent
and facially plausible story that is not contradicted by extrinsic evidence, that
finding, if not internally inconsistent, can virtually never be clear error.” Id.
at 575–76.
Applying the foregoing principles in a review of the entire record in this
case does not leave us with “a definite and firm conviction that a mistake has
been committed,” see id. at 573, and so we cannot characterize as clearly
erroneous the district court’s finding that Koch had not been disabled by his
deteriorating spinal condition and his osteoarthritic knee condition prior to his
accidental fall aboard the Altair. In making its determination, the district
court credited the testimony of Koch, his wife, and his supervisor, all of whom
13

Case: 15-30811

Document: 00513990955

Page: 14

Date Filed: 05/12/2017

No. 15-30811
bore witness to the fact that, prior to his accident aboard the Altair, Koch was
not disabled but was active in his job as foreman, in doing maintenance and
repairs at home, and socially. The district court also credited the testimony of
Koch’s treating physicians, Dr. Miranne, a neurosurgeon, and Dr. Finger, an
orthopedic surgeon, who testified that Koch had not been disabled by his
preexisting spinal and knee conditions prior to his accident. Dr. Miranne
testified that Koch had recovered from a cervical operation he performed on
him in 2008, that he had some intermittent symptomatology but was doing
well and had returned to work up until his accident. Dr. Miranne concluded
from his examinations, MRI readings, and surgery that Koch had sustained a
herniated disc at C6-7 in his fall aboard the Altair, which aggravated the
effects of his preexisting spinal disease and caused it to become totally
disabling. Dr. Finger concluded from his examinations that Koch’s fall had
aggravated his preexisting osteoarthritic knee conditions, painfully causing
him to urgently need bilateral surgical knee replacements. 7 Dr. Miranne and
Dr. Finger testified that all of the surgeries performed and planned by them,
with Koch’s consent, subsequent to Koch’s fall were necessitated by that
accident.
In contrast with Dr. Miranne’s findings, Dr. Hagemann, the
Government’s expert orthopedic surgeon, saw no signs or changes between
Koch’s MRI films taken before and after the 2012 accident. The radiologist

Although the record indicates other doctors had previously diagnosed Koch’s
preexisting osteoarthritic knee condition and advised him to undergo bilateral knee
replacement, Koch testified that he had not planned to have those operations until his 2012
accident; and Dr. Finger stated without contradiction that a physician does not recommend
such surgery if the patient chooses to function and to live with his knee pains.
7

14

Case: 15-30811

Document: 00513990955

Page: 15

Date Filed: 05/12/2017

No. 15-30811
who made the films filed a report to the same effect. Based on these readings,
Dr. Hagemann thought it was unlikely that Koch had received a herniated disc
or had been seriously harmed by the 2012 accident. However, Dr. Hagemann
had examined Koch but once, on September 2, 2014, which was after the pretrial surgeries performed by Drs. Miranne and Finger and long after the
accident. No one except Dr. Miranne and Dr. Finger had performed surgery
on him. The district court resolved the conflict in the evidence in favor of the
testimony of the treating physicians, Drs. Miranne and Finger. Considering
all of the circumstances and reasons stated, we cannot say that the district
court’s determination was unreasonable or clearly erroneous. See id. at 574
(“Where there are two permissible views of the evidence, the factfinder’s choice
between them cannot be clearly erroneous.”).
C
Finally, the Government asserts that the district court erred by unfairly
limiting the testimony of its expert, Dr. Hagemann, and by crediting the
testimony of Koch’s treating physicians over that of Dr. Hagemann because of
that limitation. Dr. Hagemann examined Koch once on September 2, 2014,
reviewed some of Koch’s medical records, and prepared a pretrial expert report
expressing his opinion that Koch did not sustain a herniated disc or any serious
injury in his accident. Before his pretrial report, Dr. Hagemann had not yet
personally reviewed the MRI films but based his opinion on the radiologist’s
reports of them. By the time of the trial, however, Dr. Hagemann had reviewed
the films himself, and at trial the Government sought to have him testify, in
addition to his opinion based on the radiologist’s readings, that his opinion that
Koch had suffered no new disc herniation or other serious injury in the accident
was based on his own comparison of Koch’s MRI films before and after the
15

Case: 15-30811

Document: 00513990955

Page: 16

Date Filed: 05/12/2017

No. 15-30811
accident. The district court sustained the Kochs’ counsel’s objection to the
enhanced testimony on the grounds that it was an improper attempt to amend
Dr. Hagemann’s pretrial report after the discovery deadline had passed and
would improperly allow Dr. Hagemann to testify as to other doctors’ reports
not included in his own report. The Government moved to make a proffer of
the evidence, and the court stated that it would permit the proffer at the end
of the trial. The Government did not make the proffer, however.
We review the evidentiary rulings of the district court under the
deferential abuse-of-discretion standard. Kelly v. Boeing Petroleum Servs.,
Inc., 61 F.3d 350, 356 (5th Cir. 1995). “District courts enjoy wide latitude in
determining the admissibility of expert testimony, and ‘the discretion of the
trial judge and his or her decision will not be disturbed on appeal unless
‘manifestly erroneous.’” Watkins v. Telsmith, Inc., 121 F.3d 984, 988 (5th Cir.
1997) (quoting Eiland v. Westinghouse Elec., 58 F.3d 176, 180 (5th Cir. 1995)).
Even if an abuse of discretion is found, the harmless error doctrine applies
unless a substantial right of the complaining party was affected. See Compaq
Comput. Corp. v. Ergonome Inc., 387 F.3d 403, 408 (5th Cir. 2004).
Having scoured the record, we are satisfied that the district court did not
abuse its discretion in ruling to exclude the additional testimony by Dr.
Hagemann about his review of the MRI films, particularly in light of the court’s
offer to allow the Government to make a proffer of it at the end of the trial.
But even if we were to assume, arguendo, that the district court erred in its
exclusion-with-proffer ruling and did so to the point of abuse of discretion, we
would still not reverse the district court’s judgment because, under the
circumstances, such an error clearly appears to have been be harmless. It was
plain that even without Dr. Hagemann’s excluded testimony on the subject
16

Case: 15-30811

Document: 00513990955

Page: 17

Date Filed: 05/12/2017

No. 15-30811
that he and the radiologist, based on their reading of Koch’s MRI films, differed
from Dr. Miranne’s findings that Koch sustained a herniated disc at C6-7 and
suffered disabling exacerbating trauma as a result of his accident. But Dr.
Miranne’s opinion as the treating neurosurgeon who had, inter alia, performed
two surgeries on Koch’s cervical spine, was based on many other factors as well
as his reading of the MRI films. For these reasons and the others expressed
herein the district court’s decision to credit Dr. Miranne’s testimony over Dr.
Hagemann’s was not unreasonable or clear error.
For these reasons, the judgment of the district court is AFFIRMED.

17