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Mathis v. Huff & Puff Trucking, Inc.

United States Court of Appeals, Tenth Circuit

June 2, 2015

MELVIN L. MATHIS, Plaintiff - Appellant,
v.
HUFF & PUFF TRUCKING, INC., a Tennessee corporation; DONALD STEWART, Defendants - Appellees

Page 1298

[Copyrighted Material Omitted]

Page 1299

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WYOMING. (D.C. No. 2:12-CV-00029-NDF).

Frederick J. Harrison, Rawlins, Wyoming, appearing for Appellant.

Patrick J. Murphy (David E. Shields with him on the brief), Williams, Porter, Day & Neville, P.C., Casper, Wyoming, appearing for Appellees.

Before BRISCOE, Chief Judge, MURPHY and MATHESON, Circuit Judges.

OPINION

Page 1300

MATHESON, Circuit Judge.

On February 18, 2008, Donald Stewart, driving a semi-tractor trailer, hit the back of a tow truck driven by Melvin Mathis. Mr. Mathis sued Mr. Stewart and his employer, Huff & Puff Trucking, Inc., for negligence in the District of Wyoming. On August 9, 2013, after a bench trial, the district court issued findings of fact and conclusions of law. The court determined Mr. Stewart was 100 percent at fault for the accident, and entered judgment in favor of Mr. Mathis. The damages award, which was significantly less than Mr. Mathis sought, was based on findings that his spinal injuries from the accident were only temporary and he did not suffer a mild traumatic brain injury (" MTBI" ). On September 6, 2013, Mr. Mathis moved for a new trial, arguing, among other things, that the judge's law clerk had an undisclosed conflict of interest. The court denied the motion.

On appeal, Mr. Mathis challenges (1) the district court's factual findings relating to his back and head injuries, (2) whether the court impermissibly allowed a defense expert to testify beyond his qualifications as a biomechanical engineer, and (3) the court's denial of his motion for a new trial based on the alleged law clerk conflict.[1] Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I. BACKGROUND

A. Factual History

On February 18, 2008, Mr. Stewart, a driver for Huff & Puff, hit Mr. Mathis's tow truck from behind with his semi-tractor trailer on Interstate 80 near Rawlins, Wyoming. Mr. Stewart was at fault for the accident. He was driving too fast for the icy road conditions and should not have been traveling in the left lane. The crash damaged the tow truck, but Mr. Mathis was " ambulatory, functional and coherent" immediately following the accident. App. at 74. He called 911, and an ambulance took him to the emergency room. The emergency room doctor found no evidence of head trauma, but noted Mr. Mathis strained his neck and back. Mr. Mathis was released later that evening.

Before the accident, Mr. Mathis had a back condition. He had undergone spinal surgeries in 1989 and 1993. Four days after the accident, Mr. Mathis saw Dr. Kenneth Schulze for follow-up care for his back and neck pain. Dr. Schulze reviewed x-rays taken the day of the accident and ordered MRIs of Mr. Mathis's spine. He concluded Mr. Mathis suffered " multiple

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areas of sprain" to his spine from the collision. Aplee. Supp. App. at 78. He noted Mr. Mathis had preexisting disc lesions, which the accident had aggravated. He referred Mr. Mathis to Dr. Judson Cook, a neurosurgeon at Wyoming Spine and Neurosurgery Associates, L.L.C.

Dr. Cook diagnosed Mr. Mathis with " cervical, thoracic and lumbar sprains and/or material aggravation of preexisting asymptomatic degenerative [spinal] disease." App. at 81. He prescribed a conservative treatment plan of physical therapy and massage. He allowed Mr. Mathis to return to light duty work in March 2008 and removed all work restrictions except avoiding heavy or repeated lifting in April 2008. Mr. Mathis saw Dr. Cook several times over the next year. Dr. Cook reported that Mr. Mathis's condition was slowly improving, though he was still symptomatic and experiencing discomfort.

In May 2009, Mr. Mathis saw Dr. Cook for the last time. Dr. Cook reported that Mr. Mathis " was doing fairly well with conservative and medical management." Id. at 83. Mr. Mathis requested to continue conservative therapy and planned to see Dr. Cook in two months for a follow-up appointment. Following the May 2009 visit, however, Mr. Mathis did not return to Wyoming Spine and Neurosurgery for nearly two years.

During those two years, Mr. Mathis worked as a nighttime fuel delivery man, working 12-hour shifts, 20 to 25 days a month. Mr. Mathis was under no work restrictions, and the job was physically demanding, requiring him to drag a 200-foot hose, refuel multiple pieces of fracking equipment, and install heavy tire chains to get around. In 2011, his employer lost a big fuel delivery contract. After that, Mr. Mathis continued to work full time doing mechanic work, driving a tow truck, and delivering fuel as needed.

In April 2011, Mr. Mathis returned to Wyoming Spine and Neurosurgery and saw a different neurosurgeon, Dr. Steven Beer. Mr. Mathis complained about lower back pain, and Dr. Beer ordered new MRIs and x-rays. The images were essentially unchanged from the MRIs and x-rays taken in 2008. In September 2012, Dr. Beer performed two-level lumbar fusion surgery on Mr. Mathis to relieve his chronic pain.

B. Procedural History

1. Initiation of Lawsuit and Bench Trial

On February 9, 2012, Mr. Mathis filed this negligence action in the District of Wyoming against Mr. Stewart and Huff & Puff (" Defendants" ). From July 8 to July 19, 2013, the district court conducted an 8-day bench trial. At trial, Mr. Mathis argued the accident caused permanent injuries to his spine, an MTBI, emotional distress, and pain and suffering. He further contended his injuries required ongoing medical care and reduced his future earning capacity. The district court heard competing evidence regarding Mr. Mathis's spinal and head injuries.[2]

2. Testimony about Mr. Mathis's Spinal Injury

On Mr. Mathis's back injuries, Dr. Beer testified for Mr. Mathis. Dr. Mark Hadley, a neurosurgeon, and Dr. Toby Hayes, a biomechanical engineer, testified for the Defendants.

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Dr. Beer testified that " the degenerative changes present in Mathis' cervical and lumbar spine became symptomatic because of the February 2008 collision." App. at 86. Dr. Beer applied a " differential diagnosis approach," concluding the accident caused the injuries because Mr. Mathis's " spondylosis was asymptomatic before the accident, and symptomatic after." Id. As the court observed, " [a]ccording to Dr. Beer, this finding is consistent with an acute or subacute process, consisting of trauma causing or contributing to a material aggravation of Mathis' preexisting asymptomatic degenerative disease present in the cervical and lumbar areas of the spine." Id. Dr. Beer said bulging discs and a small annular tear in Mr. Mathis's L4/L5 disc supported his findings. He further described Mr. Mathis's " two-year gap in treatment as consistent with a patient who is attempting to avoid surgery for as long as possible." Id. at 86-87.

Dr. Hadley testified Mr. Mathis's " medical records show no evidence of injury from the collision other than temporary muscular-skeletal injuries." Id. at 87. He explained the images of Mr. Mathis's spine " show a typical degenerative lumbar spine," caused by aging. Id. He acknowledged there were disc bulges, but said they were all old. He disagreed with Dr. Beer's determination that Mr. Mathis suffered a very small annular tear. Dr. Hadley testified that because the white dot Dr. Beer identified as an annular tear appeared on both the 2008 and 2011 images, it is related to age " because such tears don't remain acute for three years." Id. He concluded the 2011 surgery " addressed only age-related narrowing," and no further operation would help relieve Mr. Mathis's pain. Id. He further identified age, arthritis, deconditioning, and smoking as potential factors contributing to Mr. Mathis's pain.

Dr. Hayes testified regarding biomechanical injury causation. He evaluated the forces of the collision and whether those forces were likely to cause the types of injuries Mr. Mathis claimed he suffered. Dr. Hayes concluded " the forces involved in the accident are far below the 'more-likely-than-not' known injury tolerance thresholds for risk of injury to Mathis' low back, cervical spine and brain." Id. at 88. Specifically, he explained the potential for low back injury--like the type of injury Mr. Mathis claims he suffered from the accident--is " particularly low in rear-end automobile collisions when the low back stays in contact with the seatback." Aplee. Supp. App. at 168-69.

3. Testimony about Mr. Mathis's Alleged Mild Traumatic Brain Injury

In February 2013, Mr. Mathis saw a life-care planner, Francine Mazone, who suggested he might have an MTBI.[3] At her suggestion, Mr. Mathis saw a neuropsychologist, Dr. Dennis Helffenstein. Thereafter, the Defendants also hired a neuropsychologist, Dr. Paul Richards, to test Mr. Mathis for MTBI.

Dr. Helffenstein testified Mr. Mathis suffered an MTBI from the 2008 accident. He further explained as follows. Mr. Mathis meets the diagnostic criteria for MTBI because " there is a notable gap in

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[Mr. Mathis's] memory" immediately after the accident. Aplee. Supp. App. at 143-44. Mr. Mathis had no memory of pulling himself upright or pulling his vehicle to the side of the road after the impact. This suggested " a brief period of post-traumatic amnesia for some events immediately following the accident." Id. at 144. The application of the diagnostic criteria is " the beginning point of the [MTBI] diagnosis process; it is not the endpoint." Trial Tr., Vol. IV at 780. Mr. Mathis's neurological test scores showed memory impairment, his auditory and visual concentration scores ranged from impaired to average, and his verbal reasoning and judgment results were below average--all of which are " pretty classic findings" for patients with an MTBI. Id. at 831.

To support his MTBI claim, Mr. Mathis also offered the testimony of his wife, Nada Mathis; his stepdaughter, Hope Waldner; and his former boss, Gregg Waldner. Mrs. Mathis testified that since the accident her husband had been short-tempered, frustrated, and depressed, and that, about a year and a half before trial, Mr. Mathis began stuttering.[4] Ms. Waldner and Mr. Waldner both testified Mr. Mathis's personality changed after the accident, and that he had trouble focusing at work.

Defendants' expert, Dr. Richards, testified Mr. Mathis did not suffer an MTBI from the collision. He cited the lack of documentation indicating confusion or memory loss immediately after the accident. He disagreed with Dr. Helffenstein's " notable gap" testimony, reporting that in his interview with Mr. Mathis, he did not find any gap in Mr. Mathis's memory immediately after the accident, but rather that Mr. Mathis " had a quite good recollection of the time immediately post-injury." Trial Tr., Vol. VI at 1498. Finally, Dr. Richards testified that " [i]n comparison to his same-aged male peers with comparable education . . . Mr. Mathis generally demonstrated an intact ([a]verage and above) neuropsychological profile with only one documented deficit," relating to his processing speed. Aplee. Supp. App. at 131. Dr. Richards explained that many non-neurological factors could deflate Mr. Mathis's processing speed score, including depression, chronic pain, or lack of sleep. And " [a]ny recent problems [Mr. Mathis] is reportedly experiencing, with stuttering, work finding, or cognitive functioning are naturally occurring problems, and not caused or aggravated by any injury from [the accident]." Aplee. Supp. App. at 133.

Dr. Hayes also testified that the force of the collision was " well below the levels necessary to produce concussion or mild traumatic brain ...


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