Timmy Taylor v. Cottrell, 2015 U.S. App. LEXIS 13173

Background

Taylor was injured twice on Cottrell car-hauling trailers (2007 and 2010); he underwent two major spinal surgeries by Dr. James M. Odor, the second costing over $450,000.
Taylor sued Cottrell (removed to federal court). After the second injury he amended claims to include neck and low-back injuries that relied on Dr. Odor's expert opinions.
Two weeks before trial the defense produced documents they said showed contingency arrangements between Taylor's counsel and Dr. Odor; the court permitted additional discovery.
Cottrell moved to strike Dr. Odor as an expert, asserting an impermissible contingent-fee agreement; the district court struck Odor, excluded his testimony, and granted summary judgment on Taylor's neck and back claims.
On appeal the Eighth Circuit reviewed the exclusion for abuse of discretion and found the record did not show Odor's expert-payment was contingent and that letters of protection did not prove waiver of Odor’s right to collect medical bills.
The Eighth Circuit also held the district court abused its discretion in striking the business manager’s clarifying affidavit and concluded any financial interest (liens/letters of protection) went to credibility for the jury, not categorical exclusion.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether an expert may be excluded because his compensation or medical-payment depends on case outcome	Taylor: No contingent arrangement for Odor’s expert services; letters of protection merely secure payment, not a contingent waiver	Cottrell: Letters/evidence show Odor had contingent financial interest that undermines credibility and warrants exclusion	Court: Reversed — record lacks evidence Odor’s expert pay was contingent; letters of protection do not show waiver; exclusion was error
Whether post-deposition affidavit clarifying testimony may be struck as a sham	Taylor: Affidavit clarified ambiguous deposition testimony and did not contradict it	Cottrell: Affidavit improperly attempts to create factual issue after deposition	Court: Reversed district court’s striking of affidavit; affidavit properly clarified ambiguous testimony
Whether a medical provider’s lien/letters of protection automatically disqualify treating physician as expert	Taylor: Common lien/letters of protection do not automatically disqualify; bias is for jury	Cottrell: Such financial interest creates bias warranting exclusion	Court: Held liens/letters of protection go to credibility and usually should be left for jury; not a basis for exclusion here
Whether summary judgment on neck/back claims was appropriate after excluding Odor	Taylor: Exclusion was erroneous; summary judgment therefore improper	Cottrell: Exclusion justified, so claims lacking expert proof could be dismissed	Court: Vacated summary judgment and remanded for further proceedings

Key Cases Cited

Brooks v. Union Pac. R. Co., 620 F.3d 896 (8th Cir.) (standard: exclusion of expert reviewed for abuse of discretion)
Jackson v. Allstate Ins. Co., 785 F.3d 1193 (8th Cir.) (clear-error review of factual findings)
Tagatz v. Marquette Univ., 861 F.2d 1040 (7th Cir.) (ethical prohibition on contingent-fee experts does not automatically render evidence inadmissible; credibility issue)
Universal Athletic Sales Co. v. Am. Gym Recreational & Athletic Equip. Corp., 546 F.2d 530 (3d Cir.) (professional misconduct does not necessarily nullify testimony)
DiCarlo v. Keller Ladders, Inc., 211 F.3d 465 (8th Cir.) (bias of an expert is ordinarily for the jury and can be addressed by cross-examination)
Popoalii v. Corr. Med. Servs., 512 F.3d 488 (8th Cir.) (party cannot create sham issues by contradicting prior sworn testimony)
Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361 (8th Cir.) (same: disfavor allowing later affidavits that contradict deposition testimony)
City of St. Joseph, Mo. v. Sw. Bell Tel., 439 F.3d 468 (8th Cir.) (affidavits allowed to clarify, not contradict, deposition testimony)