Bartley v. Euclid, Inc.
180 F.3d 175
5th Cir.
1999
Check Treatment

*3 about experience his with both the “long REAVLEY, POLITZ, Before JOLLY, (ie., nosed” cab) hauler engine in front of HIGGINBOTHAM, DAVIS, JONES, and hauler, the short nosed saying the SMITH, DUHÉ, WIENER, latter up “kicked like a wild horse.” The BARKSDALE, M. EMILIO GARZA authorized dealer products for Euclid DeMOSS, BENAVIDES, STEWART, Australia testified they that not could PARKER DENNIS, and Circuit Judges.* solve rough ride and attributed the problem to general geometry and REAVLEY, Judge: Circuit weight distribution of the short nosed haulers. Euclid sent its chief engineer to Five drivers of heavy equipment coal investigate, who found that the nosed short haulers sued the manufacturer for hauler rode four times worse than long caused the unreasonably dangerous de- version, nosed vibrated even at speeds, low sign of the haulers. Four drivers obtained problems. demonstrated ride judgments. verdicts and Three of these The short nosed haulers were returned have now settled their claims. The manu- put Euclid to use in Texas where facturer’s appeal of the judgment for Chris they operated were by plaintiffs Luker and Luker contends that the evidence of causa- Rucker at Texas Utilities Mining Company insufficient, tion was expert testimony that (TUMCO). Two Australian engi- admitted, was improperly and that neers came to Texas confirmed that claim was proscribed by limitations. Luk- the short nosed haulers there gave the er cross appeals the reduction of his dam- unacceptable same vibration demonstrated ages on the finding of his contributory earlier Australia. negligence. Mike appeals Rucker the de- nial of his claim on finding of his Plaintiff Luker that testified worked he contributory negligence. The en banc years for thirteen During TUMCO. court has vacated prior panel opinion1 time, operated he the short nosed and now affirms the judgment. trial court hauler almost exclusively. He testified * Judge King Chief Euclid, par- Inc., recused and did Bartley (5th not 1. See F.3d ticipate 1998), vacated, (5th this decision. Cir. F.3d 215 Cir. injury to Rucker suffered plaintiff fied examina- physical required

that TUMCO require may driver, lower back middle and his a hauler him as hiring tion before ther- physical well as extensive before employment surgery as his brief despite amount of least der- had the and oil that he but doing apy, construction time plaintiffs. determined five work, back was damage his rick ridden never he stated had sound. to the testified radiologist, Aprill, a nosed the short than any coal hauler frac- endplate distribution uncommon compare its no basis and had version magnetic haulers’ coal among the tures He haulers. of other coal to that ride (MRIs) compared imaging scans resonance made to modifications that various testified who, these haul- like patients to other back improve did haulers nosed the short *4 smoked, overweight, were operators, er his of during the course ride rough the accidents, from trauma back had suffered about complaints and that his employment that explained He age. the same and were and the supervisors to his quality the ride vertabrae of at the end the endplate is the as- with answered dealer were authorized These of each disc. and bottom top at the further could nothing that surances verti- when a fracture plates cartilaginous complaints the that He averred done. the disc disc and applied is to cal load describing the ride drivers Australian Endplate endplate. against presses were identical nosed hauler of the short in the environment change the cracks the machine. experience his which discs, degeneration, disc leading to for at TUMCO Rucker worked Plaintiff compression vulnerable the disc makes haul- coal driving the began years and ten such, endplates are fractured injury. As em- of his the end early 1991. At ers in He compression failure. the hallmark haulers had driven coal he ployment, and well known that it is noted further quar- a three and partial rotation on a that whole literature by medical supported during his that years. He testified ter fracturing of cause body vibrations any had never driven he employment are that endplates The more endplates. nosed coal the short than equipment other cracked, degenerate, will more discs trucks, and, occasionally, the water haulers that one or likely it becomes and the more agreed He a hoe. and back dumps, end fail and discs will degenerated more of the witnesses, from both those the other testified Aprill then- pain. back produce Australia, that those from TUMCO operators hauler of the that the MRIs punctu- ride was haulers’ the short nosed ie., fingerprint, the same evidenced loping, and vibra- slapping, ated back in both failure compression peated that vertical pain back tion. suffered the He pattern regions, a and lumbar the dorsal to his claim in related pain non-hauler back not found MRIs testi- a Samaratunga, neurosurgeon, Dr. that Aprill testified Specifically, patients. a nosed rode short he personally fied that Luker demonstrated plaintiff the MRIs experienced was what force hauler to see in the endplates multiple cracks pointed He out by the driver. degenerative spine, cracks dorsal of the spines to the damage widespread lumbar disc herniation disease and pa- of his other unlike that drivers was de- with Luker’s which correlated spine, across tients, did not damage occur where in the dor- symptoms pain his scription of spine. of the Samaratun- regions three all Simi- of his back. regions sal and lumbar histories, reviewed plaintiffs’ ga took the showed Rucker plaintiff larly, the MRIs records, and examined them medical endplate multiple had suffered that he plaintiff He testified that treated them. abnor- spine and three the dorsal cracks in that the surgery, and require might Luker which also spine, the lumbar malities in a con- hauler was rough ride of coal Aprill symptoms. pain to his correlated He testi- damage. to the tributing factor pattern identified this in all five hauler mer. One of the Australian engineers re- drivers. ferred to Clinical Biomechanics Spine,3 provided which that vibrations of jury The found Luker’s damages to be the type and experienced level $900,000 and, short with the assessment of his nosed haulers are to produce known spinal fault at thirty percent, the judgment final damage.4 $630,000. awarded him Because Rucker was found to be seventy percent fault, Expert Witness Evidence he nothing recovered despite his damages $400,000. The radiologist, Aprill, and the neurosurgeon, Dr. Samaratunga, were Causation

Proof of qualified give their opinion on the read ings of the burden MRIs and prove was to of the injuries suf roughness fered the ride coal Rucker. Euclid com plains haulers probably of Aprill’s opinion contributing cause the short of their injuries, back nosed coal haulers without caused inju those ries, would but Aprill not have been expressly suffered. We said that he review “the evidence in claimed no knowledge its strongest light coal haulers *5 in favor” and plaintiffs, only testified giving them the “the about compression advantage of fractures every fair shown on the MRIs. He reasonable did testi fy inference which that all the of justifies.”2 the 90 evidence MRIs demonstrated a common compression injury. Only when The circumstantial evidence of the lawyer Euclid’s asked him if he did not relation between rough the of ride the coal driving think the hauler inju caused the haulers injuries back was ries did he agree with that conclusion inas more reasonable; than it was compelling. much as driving the haulers was the com The doctors and engineers testified to the mon occupation. jolts on the drivers, bodies of the causing compression upon their spines. The MRI Euclid also argues that Aprill’s tes pictures of spines their demonstrated timony cu about study his of the comparison mulative, repetitive compression fractures, between the of MRIs the drivers and the according to the neurosurgeon and radiolo MRIs of the patients other lacked the gist. radiologist exhibited MRIs of support of the Daubert criteria.5 Aprill the five plaintiffs as well eighty-five did describe his ongoing study of intraver- other drivers of the short nosed haulers tibral endplate terms, fractures in those and explained how the incidence and loca but the given evidence jury this was tion of multiple fractures demonstrated only ex illustrative of findings his from the tensive and prolonged trauma. He com two sets of MRIs. The “study” was nothing pared those MRIs other patients with than comparison more a of otherwise ad back but who lacked the same missible findings or exhibits. The district multiple fractures, what or he termed the judge did not abuse his discretion in the “fingerprint” of the occupation of the for- admission of expert this testimony.6 2. Junes Laughlin Matherne, & Corp. Steel having published studies, no engineer the re- 394, (5th 348 F.2d 1965). 397-98 Cir. Australia, plied that “in experience and dili- gent study along qualifi- count[] with formal Augustus cations.” 3. Panjabi, A. White & M. Manohar (2d Spine Clinical of Biomechanics the ed. Pharm., Inc., 5. See Daubert v. Merrell Dow 509 579, 593-95, 2786, 2796-97, U.S. 113 S.Ct. (1993). 4. 125 Interestingly, although L.Ed.2d 469 Euclid’s counsel ad- mitted that this "impressive witness had an resume,” when counsel went on to fault the Joiner, 136, See General Elec. Co. v. 522 U.S. being witness lor no 512, doctor or statistician and (1997). S.Ct. 139 L.Ed.2d apply state therefore, duty-bound are, Limitations Statute of of The law appeal. resolving the law in frac endplate the of The MRIs calls for rever- clearly of Texas the State cu the proved objectively

tures reason, judgment the for no sal. If such but damage, compression mulative of all because reversed be should below symptomatic. otherwise not damage is by barred are claims and Rucker’s Luker’s injury the kind it was Accordingly, limitations. pre the within discovered likely to be per- requires statutory law Texas de period,7 limitations two-year scribed two within filed be injury lawsuits sonal had plaintiffs diligence;8 faithful spite of action. cause accrual of years being they were suspect reason no Ann. Rem.Code Prac. Civ. & See Tex. light In by vibration.9 injured A (Vernon 16.003(a) Supp.1999). &1986 § by marshaled quality ride evidence a at the time accrues action cause record, cannot it in this extensive plaintiffs injury, legal some act causes wrongful haulers nosed short that these disputed discovered. injury is of when gardless by proven is which problems, ride had 1, 4 R.V., See, S.W.2d e.g., S.V. their vibration direct, evidence physical review comprehensive (Tex.1996). In accelerometer, by collected characteristics relating to law restatement witnesses, ex both multiple testified to limitations, Supreme Court statute Euclid’s admitted lay, and pert from following rule distilled Texas Australia, dealer engineer chief aof cause “accrual holdings: previous its equip Euclid to sell authorized who or in fraud in cases deferred is of action injury, toAs that time. ment fraudulently con- wrongdoing dam compression for his claim brought his cases discovery rule cealed, and in *6 which diagnosed, it was after shortly age and result- wrongful act alleged the reasonably possi was as soon made was inherently undiscoverable were injury ing As injury. this of the nature given ble may be but they occurred time the at two within filed were such, claims Luker’s 6. Id. verified.” objectively the with in accordance discovery of years found specifically case in this jury The rule.10 discovery Texas file then- failed Rucker that Luker they date of the years two within lawsuits Responsibility Proportionate of a result injury as some suffered first jury’s de the supports record The haulers. coal the short-nose riding Luker of negligence that some termination therefore are claims and Rucker’s Luker’s injuries their aggravated Rucker an ex- they can invoke unless time-barred opinion. panel in the stated reasons the the Texas stat- operation to the ception AFFIRMED. jury determined The limitations. ute of fraudulently conceal Euclid did whom DeMOSS, Judge, Circuit and therefore wrong; any joins SMITH, Judge, Circuit E. JERRY of limitations statute can evade Rucker dissenting: within if, case falls this if, only in which circumstances limited set our Court before appears This case applies. discovery rule We jurisdiction. diversity our based the Texas would extend 10.Judge DeMoss Ann. & Rem.Code Civ. Tex. Prac. 7. misdiagnosis cases holdings Supp.1999). 16.003(a) (Vernon 1986 & § We present case. memory repressed the Texas extension for this no basis see 1, (Tex. R.V., 6-7 S.W.2d 933 v. See S.V. 8. Furthermore, he has we note decisions. actually oc- prior injury concede that limitations would no there or else curred at 8. 9. Id. bar.

181 discovery rule only applies if the negligent, plaintiff could not take ad injury nature of the is “inherently undis- vantage of the discovery rule. Expert tes coverable” and the injury “objec itself is timony would have required been to prove tively E.g., verifiable.” Exploration HECI case, and the court concluded that Neel, (Tex. Co. 881, v. 982 S.W.2d 886 expert testimony did not supply the re 1998); Haussecker, Childs 974 S.W.2d quired objective verification of wrong and 31, (Tex.1998); S.V., 6; 933 S.W.2d at injury. Robinson, See 21; S.W.2d at Computer Int’l, Altai, Inc., Assocs. Inc. v. S.V., see also 933 S.W.2d at 7. “[T]he bar 453, (Tex.1996). 918 S.W.2d These of limitations cannot be lowered for no requirements “balance the conflicting poli other reason than a swearing match be cies in statutes of limitations: the benefits parties tween over facts and between ex stale precluding spurious or claims ver perts opinions.” S.V., over 933 S.W.2d at sus the risks of precluding meritorious claims that happen to fall outside an arbi trarily S.V., set period.” 933 S.W.2d at 6. The case now before our Court is indis- Although jury in this case purported to tinguishable from Robinson. It features a determine that the plaintiffs’ injuries met factual dispute about the existence and both criteria, history these extent vibration in short-nose coal haul- application discovery by rule ers and heavy equipment. Even Supreme Court clearly Texas demon more to point, however, the case fea- strates, law, as a matter of that neither the tures a dispute among experts as to wrong nor the in this case were exists, whether injury and if so whether it objectively verifiable. caused the excessive vibration of An objectively injury verifiable exists the short-nose coal hauler. Aprill, where presence “the injury and the radiologist and an expert witness for the producing wrongful act cannot be disput plaintiffs, provided the only testimony sup- ed.” Park, Howard Fiesta Tex. Show porting injury. claims of He Inc., 716, 980 S.W.2d (Tex.App. — San discovered “endplate infractions” in the denied). Antonio pet. The injury plaiptiffs’ spines by studying MRI scans of proved “direct, must be physical evi Gallman, backs. Dr. also a *7 dence. Co., ” Hay Shell Oil 986 S.W.2d radiologist and an expert witness for the 772, 776 (Tex.App. Corpus Christi — defense, testified that he had never seen or filed). pet. paradigmatic The example of heard of the “endplate term infraction.” the type of evidence necessary objec He believes that Aprill Dr. coined the term tively verify the wrong injury and the especially for use in this litigation. Dr. provided Smith, in Gaddis v. 417 S.W.2d Gallman further testified that he had (Tex.1967), in which doctors were sued the plaintiffs’ viewed MRIs and found no for negligence in a leaving sponge inside Instead, abnormalities. he testified that body patient. presence a The phenomenon termed “endplate infrac- sponge in patient explanation and the tion” Aprill common,” is “extremely for how sponge came to be in the “no having significance” and “every seen patient’s body were self-evident and based day multiple on patients studies of direct, from all on physical contrast, evidence. In walks of life.” This prime sup- assessment was example of a case in which the ported by Dr. Pope, discovery another defense wit- rule does not apply for lack of ness a objective leading who is authority verification is and a Robinson Weav er, (Tex.1977). distinguished professor S.W.2d 18 plain areas of tiffs claim stemmed alleged engineering, from biomedical misdiag orthopedic sur- nosis of a gery, back condition. medicine, Faced preventative with the and mechani- task of proving both a mistake in cal profes engineering. cross-examination, On sional judgment and that such mistake was Dr. Aprill conceded different radiolo- from conclusions different draw could

gists

an MRI. verification objective no been

There has required injuries, isas Robinson, Like discovery rule. invoke on ex absolutely relies case wrong and both testimony to establish

pert Robinson, features case this Like

injury. experts among match swearing

a injury but cause only the not

touches conceding that injury. By the fact

even draw different could radiologists

different MRIs, es Dr. Aprill from the

conclusions in this injury the evidence

tablished all de objective; it not subjective,

case is In such the MRI. who reads on

pends would of Texas

case, Court Supreme discovery application permit apply obligation our It

rule. diversity our rule in exercise

same

jurisdiction. reasons, well as the

For these from my dissent articulated

reasons 277-91, I see F.3d opinion,

panel judg- motion for Euclid’s hold

would the grounds of law matter as a

ment two- the Texas were barred

the claims have should limitations

year statute therefore, I, respectfully granted.

been

dissent. America, STATES

UNITED

Plaintiff-Appellee, Raymond

Gary Patrick NUTALL Nutall, Defendants-

Andre

Appellants.

No. 97-51050. Appeals, Court States

United Circuit.

Fifth 25, 1999.

June