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Neiberger v. Fedex Ground Package System

May 27, 2009



The opinion of the court was delivered by: Hartz, Circuit Judge.


Before HARTZ, SEYMOUR, and TYMKOVICH, Circuit Judges.

Penni L. Neiberger was a passenger in a pickup truck driven by her husband, John E. Neiberger, when she was injured in a motor-vehicle collision in Colorado on February 19, 2003. The other vehicle was a delivery van driven by defendant Kevin Killman and owned by defendant Dennis Conley. The van was carrying cargo for defendant Fedex Ground Package System, Inc. Mrs. Neiberger appeals an adverse judgment in the United States District Court for the District of Colorado.*fn1 Under Colorado's no-fault statute she could obtain relief through a tort suit only if her injuries were sufficiently severe. The jury found that her injuries did not qualify.

On appeal Mrs. Neiberger challenges several rulings by the district court that may have led to the jury's finding. Two challenges relate to a defense expert witness who opined that the failure of Mrs. Neiberger's spine to heal after her preaccident back surgery was not the result of the accident but was probably caused by her smoking. Mrs. Neiberger contends that the expert should not have been permitted to testify because (1) the expert opinion did not satisfy the requirements of Federal Rule of Evidence 702 and (2) Defendants did not adequately disclose during discovery the basis for the expert's opinion.

Mrs. Neiberger also challenges the district court's refusal to allow two of her expert witnesses on damages to testify regarding her medical expenses. Finally, she challenges the court's refusal to allow her to call an expert witness regarding the cause of the accident. We have jurisdiction under 28 U.S.C. § 1291 and affirm.


The details of the accident are not relevant to our disposition of this appeal. We therefore summarize at this point only the Colorado statute that barred Mrs. Neiberger's tort claim and the evidence relating to the requirements of the statute. We will provide further detail in our later discussions of the specific issues raised on appeal.

Under the Colorado Auto Accident Reparations Act, Colorado Revised Statute § 10-4-701 et seq. (repealed July 1, 2003), which governed Mrs. Neiberger's claim, a victim of a motor-vehicle accident could recover damages in a tort lawsuit only if she proved that the accident had caused at least one of several specified losses. See Colo. Rev. Stat. § 10-4-714 (repealed July 1, 2003); Donelson v. Fritz, 70 P.3d 539, 545 (Colo. Ct. App. 2002). Accordingly, the district court gave the jury the following "threshold" instruction (which is not challenged on appeal):

Before you consider the question of either negligence or damage, you must first find at least one of the following was caused by the accident:

The Plaintiff, Penni Neiberger, sustained one or more of the following:

a. permanent disability;

b. permanent disfigurement;

c. the reasonable value of reasonably needed medical or rehabilitation services, alone or in combination, have [sic] or will exceed $2,500.00; or

d. loss of earnings or earning capacity [beyond certain specified amounts].

If you find that none of the above has been proved by a preponderance of the evidence, then you must return your verdict in favor of the Defendants, and your foreperson shall sign Verdict Form 1.

Aplees. App. at 1.

To prove that she had suffered an injury that would enable her to sue in tort, Mrs. Neiberger relied on a claim that the accident had injured her spine. She had suffered from scoliosis, or curvature of the spine, since age 13; and Dr. John Odom, an orthopedic surgeon, had operated on her to correct the defect in March 2002, about a year before the accident. But when Dr. Odom performed additional surgeries after the accident (in August 2003 and February 2005), he noted that her spine had not fused in some locations-that is, she had nonunions of her spine. He testified at trial that the nonunions were caused by the accident.

In addition, to prove that her reasonably necessarymedical expenses arising from the accident exceeded $2,500, Mrs. Neiberger testified that she had incurred $184,000 in medical bills "[s]ince the accident." Aplts. App. Vol. 2 at 266. But when she tried to introduce testimony by her economics expert, Thomas Roney, regarding her medical expenses, the district court sustained a defense objection on the ground that Mrs. Neiberger had not introduced competent evidence to show that the care for which she was billed $184,000 was reasonably necessary to treat injuries caused by the accident. She contends that the district court similarly refused to admit medical-expense testimony by her occupational-therapy and life-care-planning expert, Doris Shriver.

To counter Dr. Odom's testimony, Defendants presented a deposition of Dr. Peter Weingarten, another orthopedic surgeon, that had been videotaped a week before trial. Dr. Weingarten testified that the nonunions of Mrs. Neiberger's spine probably resulted from her smoking cigarettes, not from the accident.

The jury returned a special verdict that Mrs. Neiberger had not proved any of the losses necessary to pursue a tort claim, and the district ...

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