Submitted: Sept. 24, 2013.
[Copyrighted Material Omitted]
K. Lee Marshall, argued, San Francisco, CA (Herbert Beigel, Tucson, AZ; Stephen Gerard Strauss, Stefani L. Rothermel and Timothy J. Hasken, St. Louis, MO, on the brief), for appellant/cross-appellee.
Paul D. McNeill, argued, Jonesboro, AR (David Landis, Paragould, AR; Ryan Michael Wilson, Jonesboro, AR, on the brief), appellee/cross-appellant.
Before WOLLMAN, BEAM, and SMITH, Circuit Judges.
WOLLMAN, Circuit Judge.
American Railcar Industries, Inc. (ARI), appeals from a district court  order denying
its motion for judgment as a matter of law or, in the alternative, a new trial, and granting a partial remittitur of damages. George Tedder cross-appeals from the same order, challenging the remittitur. We affirm.
Tedder worked for ARI as a welder. On April 24, 2008, Tedder was sitting on a table in the welding shop when another ARI employee crashed a golf cart into it, knocking Tedder off the table and into a metal pipe stand. Tedder immediately complained of back pain and eventually sought medical treatment for his symptoms. Since that time, Tedder has remained physically disabled and in pain.
Tedder has a history of work-related back injuries that predate the accident. In the late 1970s, Tedder injured his back in an industrial welding accident and was unable to work for three years. Tedder returned to his job only after being retrained for lighter duty work. In April 2000, Tedder again injured his back when he slipped while using a pry bar. Tedder visited the emergency room and was diagnosed with acute lower back pain. Finally, in April 2006, Tedder injured his back when he slipped on a piece of metal pipe. Tedder sought treatment from a chiropractor after the injury. According to the testimony of several lay witnesses, Tedder was not experiencing any symptoms relating to these injuries immediately prior to the golf cart accident.
Tedder sued ARI on September 2, 2009, alleging that the golf cart accident had caused his debilitating back pain. ARI admitted that its employee had been negligent but contested causation and damages, arguing that Tedder's three prior back injuries, his history of smoking and obesity, and his participation in active leisurely pursuits like bowling and hunting could also have caused his symptoms.
At trial, Tedder called seven lay witnesses to testify that they had noticed a marked deterioration in Tedder's physical condition after the golf cart accident. Tedder also called Gregory Ricca, M.D., an expert witness who opined that the golf cart accident was the medical cause of Tedder's symptoms. Dr. Ricca based his opinion on a differential diagnosis, a diagnostic method whereby a physician identifies all scientifically plausible causes of a patient's symptoms, then rules out improbable causes until the most likely cause remains. On cross-examination, ARI asked Dr. Ricca whether he knew about Tedder's prior back injuries and whether knowledge of those injuries would have been important to a differential diagnosis. Dr. Ricca admitted he had not heard about Tedder's injuries in 2000 or 2006 and that knowledge of those injuries would have been critical to such a diagnosis. On redirect examination, Dr. Ricca qualified his earlier opinion by adding:
If the 2004[sic] or 2000 back pain episodes continued up until his event, then I would not be able to say the event caused it. But if he were asymptomatic prior to the event, he had the event, he had a reasonable association between the event and the injury, the injury he describes is consistent with his symptoms, then I would say the event or injury caused the symptoms that needed treatment.
ARI objected to Dr. Ricca's testimony, arguing that Dr. Ricca could not make a differential diagnosis based solely on Tedder's subjective statements. The court overruled ARI's objection.
The jury returned a verdict for Tedder and awarded him the ...