Ricky Koch v. Tote, Incorporated

Case: 15-30811 Document: 00513990955 Page: 1 Date Filed: 05/12/2017

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

No. 15-30811

Fifth Circuit

FILED

May 12, 2017

Lyle W. Cayce

RICKY KOCH; SUSAN KOCH, Clerk

Plaintiffs - Appellees

AMERICAN INTERSTATE INSURANCE COMPANY,

Intervenor

v.

UNITED STATES OF AMERICA,

Defendant - Appellant

Appeal from the United States District Court

for the Eastern District of Louisiana

Before JONES, DENNIS, PRADO, Circuit Judges.

JAMES L. DENNIS, Circuit Judge:

Plaintiff Ricky Koch fell and suffered personal injuries while aboard the

S.S. Altair, a public vessel owned by the United States and operated by its

agents. Koch, a 54 year-old foreman and employee of Economy Iron Works,

was inspecting the vessel in connection with his employer’s bidding on repair

work on the vessel. Koch and his wife, Susan Koch, brought this action in

federal district court against the Government under the third-party liability

provision of the Longshore and Harborworkers’ Compensation Act (LHWCA),

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33 U.S.C. § 905(b). 1 Following a bench trial, the district court determined that

negligence attributable to the Government—failure to provide adequate

lighting of a stairwell—was the factual and legal cause of Koch’s fall, resulting

harm, and permanent disability and awarded the Kochs $2.83 million in

damages. The Government filed a timely notice of appeal. See FED. R. APP. P.

4(a)(1)(B). This court has jurisdiction under 28 U.S.C. § 1291.

I

A

The Government contends that, prior to his February 2, 2012 accident,

Koch had become disabled by his painful chronic osteoarthritis in both his

knees, as well as the degenerative disc disease in his cervical spine and carpal

tunnel syndrome. Although Koch’s preexisting conditions are undisputed,

the district court rejected the Government’s argument that Koch had been

disabled by them prior to his accident. We affirm this factual finding by the

district court as not clearly erroneous for the reasons set forth in detail later

in this opinion. At this point, in the interest of chronological clarity, we set

forth briefly the evidence of Koch’s developing osteoarthritic knee and spinal

diseases prior to his accident, as follows:

In 2002, Dr. Richard Corales diagnosed Koch as suffering from

degenerative disc disease. In 2004, Koch was diagnosed with multiple joint

arthritis by Dr. Terry Habig who referred him to a rheumatologist. In 2005,

Dr. Merlin Wilson, a rheumatologist, diagnosed Koch with generalized

osteoarthritis and concluded that he needed total knee replacement. In

The district court had jurisdiction under its admiralty jurisdiction. 28 U.S.C. § 1333.

1

The applicable waiver of sovereign immunity is the Public Vessels Act, 46 U.S.C. §§ 31101–

31113.

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December 2007, Koch saw Dr. Miranne, who recorded that Koch had a history

of “progressive lower back pain for many years” and documented, inter alia,

carpal tunnel syndrome. In January 2008, Dr. Lucien Miranne performed

cervical spine fusion surgery of Koch’s C3-4 and C4-5. In January 2009, Koch

was seen by Dr. Lockwood Ochsner, who said he considered doing bilateral

total knee replacement. In January 2012, Dr. Wilson saw Koch again and

noted that he needed total knee replacement surgery “in the worst way.”

B

On February 2, 2012, Koch boarded the S.S. Altair, a public vessel in

reserve status owned by the United States Maritime Administration. Along

with six other contractor representatives, Koch participated in a

“walkthrough” of the vessel in order to submit a bid for his company on areas

of the vessel in need of repair. The chief engineer of the Altair directed the

walkthrough. The contractor group eventually arrived at a stairwell leading

down to the winch room, a small compartment that housed the vessel’s

eductor system. The chief engineer flipped the light switch at the top of the

stairwell, but the fluorescent lights did not fully illuminate the area. The

engineer led the contractor group down the stairwell, which became

progressively darker. While some contractors used flashlights to help

illuminate their descent, Koch held on to the handrails with both hands.

However, he missed the last step in the dark and fell backwards, striking his

head, neck, and shoulders on the bulkhead. He sat down while the other

contractors inspected the winch room. Koch then continued with the group’s

walkthrough of the Altair. However, Koch did not complete a second

walkthrough of another vessel, but instead returned to his office. After filling

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out an accident report, Koch remained in the office for the rest of the day. A

colleague drove him home, where his wife found him immobile on a recliner.

Essentially incapacitated and experiencing severe pain in his knees,

neck, and back, Koch remained at home, unable to return to work. When his

symptoms did not improve after a few days of rest, he went to an urgent care

clinic. The doctor at the clinic instructed Koch to follow up with a specialist;

Koch saw Dr. Simon Finger, an orthopedic surgeon. Dr. Finger noted Koch’s

history of osteoarthritis in his knees but concluded that the February 2, 2012

shipboard fall exacerbated his preexisting osteoarthritic conditions and caused

the urgent necessity for surgical bilateral knee replacements.

Prior to performing a knee replacement, however, Dr. Finger instructed

Koch to see a neurosurgeon for his neck symptoms that had manifested after

the fall. Koch saw Dr. Lucien Miranne, a neurosurgeon who had previously

performed an anterior cervical discectomy and fusion at his C3-4 and C4-5

vertebrae in his neck in January 2008. Dr. Miranne concluded that Koch

herniated his C6-7 disc as a result of the February 2, 2012 fall and aggravated

his cervical spondylosis in his C5-6 discs. Dr. Miranne recommended and

performed an anterior cervical discectomy and fusion at C5-6 and C6-7 on Koch

on August 17, 2012.

Following this cervical spine surgery, Koch had post-surgical

complications, including carpal tunnel problems in his hands. Although Koch

had mild carpal tunnel prior to the fall, Dr. Miranne noted that the carpal

tunnel condition was worsened by Koch’s neck problems associated with his C6

and C7 nerve roots. On April 30, 2013, Dr. Miranne performed a right carpal

tunnel release on Koch.

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Koch’s symptoms, including severe pain in his neck, shoulders, arms,

and hands, worsened after the August 17, 2012 surgery. Dr. Miranne

concluded that because of Koch’s persisting pain and discomfort, additional

surgery was required, consisting of a posterior approach cervical fusion. 2 Dr.

Miranne explained that he had not used the posterior approach in the first

place because it is more painful and usually requires longer hospitalization

than the anterior approach. Dr. Miranne recommended that Koch first have

and recover from the knee replacements before undergoing the posterior

cervical surgery. On July 14, 2014, Dr. Finger performed a right total knee

replacement. At the time of trial, Koch was scheduled to have the left knee

replacement as soon as he had fully recovered from the first knee replacement.

Dr. Miranne also recommended that Koch undergo a left carpal tunnel release.

C

In May 2013, the Kochs filed suit against the Government for damages

for past and future medical care, lost wages, and pain and suffering. They

alleged that the Government was liable due to its negligence in failing to

provide a safe work place and adequate lighting on the vessel. Following a

three-day bench trial, the district court determined that the Government’s

negligence in failing to provide adequate lighting above the stairwell was the

factual and legal cause of Koch’s accidental fall, his injuries, the exacerbation

of his preexisting conditions, and his disability. Koch v. United States, No.

CIV. A. 13-205, 2015 WL 4129312 (E.D. La. July 7, 2015).

2 Dr. Miranne testified that posterior approach cervical fusion surgery requires

removing bone or portions of a herniated disc to relieve Koch’s neck and arm pain and the

use of mass screws and rods to hold the vertebrae in place and provide stability.

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Koch’s supervisor, Robert Barbalich, Jr. of Economy Iron Works,

testified that he knew of Koch’s health issues prior to the accident, but that

they never impacted his ability to work as a foreman and that he did not

have mobility issues on the job. Barbalich expected Koch to work for

another five to ten years before retiring. Dr. Miranne testified that Koch

had returned to work without restrictions following the successful 2008

anterior cervical discectomy and fusion. Dr. Wilson, a rheumatologist,

testified that when he saw Koch in January 2012 Koch said that he had

worked continuously and was able to perform all of his job duties and daily

living activities. Koch testified that prior to the fall he had no plans to have

knee replacement surgery and had no limitations or restrictions on account

of his knees or neck. Susan Koch testified that prior to the accident Koch

was very active at home; he replaced the kitchen cabinets, vaulted the

ceiling in their bedroom, mowed the lawn regularly, and tended to their

garden. After the accident, Koch could no longer sleep in a normal bed and

the couple can no longer enjoy an active social life. She testified that the

stress of working full time and caring for her husband had taken its toll on

her and their relationship. Koch’s treating surgeons, Drs. Miranne and

Finger, testified that Koch’s fall caused his injuries, exacerbation of

preexisting conditions, and disability and that all of his subsequent

surgeries were necessitated by that accident. Dr. Finger testified that more

likely than not Koch will need revision surgeries to both knees within the next

fifteen to thirty years. Dr. Miranne testified that even if Koch had successful

knee replacements with Dr. Finger and a successful posterior approach

cervical fusion surgery, it is more likely than not that he will never be able to

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return to any type of gainful employment due to the injuries sustained in his

fall.

The district court award of damages to the Kochs of $2.83 million,

including $1.3 million for Koch’s pain and suffering. In its findings of fact,

the district court stated:

Prior to February 2, 2012, and despite multiple pre-existing

injuries, Mr. Koch was an active, convivial man who enjoyed

going to work. Although he frequently experienced pain while

working, particularly in his knees, Mr. Koch performed his

work activities with vigor and without restriction since at

least 2010. . . . Mr. Koch was equally active at home. He

mowed the lawn. He fixed the plumbing. He updated the

kitchen cabinets. He removed the bedroom ceiling and

reinstalled it. He even undertook to modify the drainage

system in his home, which involved digging up the bulkhead,

replacing existing pipe, and placing gravel rocks on top of the

drain pipe.

Id. at *3–4. The district court found that “[a]s a result of the injuries he

sustained on February 2, 2012 and the treatment he has received and will

receive for those injuries, Mr. Koch will never work again.” Id. at *3

(footnote omitted).

II

On appeal, the Government argues that: (1) the district court applied

the wrong legal standard applicable to cases in which the injured plaintiff had

a diagnosed preexisting medical condition; (2) the district court erred in

holding that the accident was the sole cause of Koch’s damages; and (3) the

district court abused its discretion in limiting the testimony of the

Government’s expert witness, Dr. William Hagemann, an orthopedic surgeon.

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A

We review de novo the legal determinations of the district court after a

bench trial. Seal v. Knorpp, 957 F.2d 1230, 1234 (5th Cir. 1992). In

determining that the Kochs are entitled to recover for all of Koch’s harm and

disability, without any discount or reduction because of Koch’s preexisting

osteoarthritic knee and degenerative spinal conditions, the district court

applied the principles set forth in Maurer v. United States, 668 F.2d 98, 99–

100 (2d Cir. 1997):

It is a settled principle of tort law that when a defendant’s

wrongful act causes injury, he is fully liable for the resulting

damage even though the injured plaintiff had a preexisting

condition that made the consequences of the wrongful act more

severe than they would have been for a normal victim. The

defendant takes the plaintiff as he finds him. See, e. g., Evans v.

S. J. Groves & Sons Co., 315 F.2d 335, 347–48 (2d Cir. 1963)

(Friendly, J.); United States Fidelity & Guaranty Co. v. United

States, 152 F.2d 46, 49 (2d Cir. 1945) (L. Hand, J.); The Jefferson

Myers, 45 F.2d 162 (2d Cir. 1930) (per curiam). A plaintiff’s

recovery for damages caused by a defendant’s wrongful act may

not be proportionately reduced because of a preexisting weakness

or susceptibility to injury such as an osteoarthritic condition or a

weakness caused by a previous injury. See, e.g., United States

Fidelity & Guaranty Co. v. United States, supra (congenital spine

defect); Buchalski v. Universal Marine Corp., 393 F. Supp. 246,

248 (W.D. Wash. 1975) (preexisting weakness of lower back from

prior injury that had stabilized at a nondisabling level).

However, there are two exceptions to the general rule. First,

when a plaintiff is incapacitated or disabled prior to an accident,

the defendant is liable only for the additional harm or

aggravation that he caused. Evans v. S. J. Groves & Sons Co.,

supra, 315 F.2d at 347. Second, when a plaintiff has a preexisting

condition that would inevitably worsen, a defendant causing

subsequent injury is entitled to have the plaintiff’s damages

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discounted to reflect the proportion of damages that would have

been suffered even in the absence of the subsequent injury, but

the burden of proof in such cases is upon the defendant to prove

the extent of the damages that the preexisting condition would

inevitably have caused. Id. at 348.

Applying the foregoing principles, the district court concluded that,

because the defendant’s negligent failure to safely illumine the stairwell was

the factual and legal cause of Koch’s accidental fall and its disabling

consequences, the Government is fully liable for his resulting harm and

disability, even though Koch’s preexisting conditions made the consequences

of the Government’s negligence more severe than they would have been for an

ordinary victim. The district court found that neither of the exceptions to this

general rule articulated in Maurer applies in the present case. The court found

that the first exception does not apply because Koch was not disabled or

incapacitated before the accident 3; and that the second exception does not apply

here because the Government did not carry its burden to prove the extent, if

any, of the damages that the preexisting conditions would inevitably have

caused even in the absence of the accident. 4 We see no error in the district

court’s application of the well-settled principles set forth in Maurer.

The Government contends, however, that Maurer is inapplicable because

it is an “eggshell skull” plaintiff case, and that the “eggshell skull” concept

applies only if the plaintiff’s preexisting condition was completely latent and

had not manifested itself prior to the plaintiff’s accident caused by the

defendant. This argument is not meritorious. Maurer itself involved a plaintiff

3See Koch v. United States, 2015 WL 4129312, *3–4.

4 Id. at *6 (“The evidence presented at trial does not establish that any of the injuries

of which Mr. Koch complains were inevitable.”).

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who suffered from already manifested “preexisting degenerative back

condition (osteoarthritis)” and an unspecified injury in a prior accident. 668

F.2d at 99. Moreover, the Government cites no authority for limiting the “thin

skull” or “eggshell skull” rule—described often as the “defendant takes the

victim as found” rule—to cases involving only latent or unmanifested

preexisting conditions. This court and district courts within our circuit have

expressed approval and acceptance of the “thin skull,” “eggshell skull,” or

“defendant takes the victim as found” rule without limiting its application to

latent or unmanifested preexisting conditions. See Dahlen v. Gulf Crews, Inc.,

281 F.3d 487, 495 (5th Cir. 2002); Dunn v. Denk, 54 F.3d 248 (5th Cir. 1995);

Cutchall v. Cal Dive Int’l, Inc., No. CV 12-1291, 2013 WL 12107569, at *1 (E.D.

La. Apr. 2, 2013); Johnson v. Cenac Towing, Inc., 599 F. Supp. 2d 721, 730

(E.D. La. 2009); Laakso v. Mitsui & Co. USA, No. CIV. A. 88-2450, 1989 WL

149186, 1990 A.M.C. 635, 645 (E.D. La. Dec. 6, 1989); Curtis v. Shivers, 674 F.

Supp. 1237, 1239 (E.D. La. 1987). 5

5 Henderson v. United States, 328 F.2d 502 (5th Cir. 1964), the case relied upon by the

Government, is inapposite. In that case, the plaintiff, a civilian, was injured when a

Government agent negligently backed a truck into him on June 18, 1961. The district court

found that plaintiff’s preexisting osteoarthritic lumbar condition was aggravated as a

consequence of the negligence of the Government but that he suffered little or no pain

immediately. Although he did experience some pain beginning in early July, his pain did not

become severe and disabling until he suffered a second injury to his back on September 12,

1961, without fault or negligence on the part of the Government. Because the Government

was in no way responsible for plaintiff’s second, more serious back injury the district court

awarded him only $5,000 for his June 18 injury. This court affirmed, stating as a general

rule that where there is a subsequent injury, if the subsequent event is attributable to a

distinct intervening cause, the wrongdoer is held to be liable only for the original injury. As

the district court, after weighing the evidence as a whole, apparently concluded that the

aggravation caused by the negligence of the Government in June 1961 was not a contributing

factor to the injuries occurring in September 1961, the Court of Appeals concluded that it

could not say that the district court’s findings and conclusion were clearly erroneous. Id. at

505. Henderson’s facts are clearly distinguishable from the present case, because here there

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Indeed, we have found no reported case so limiting the rule. Further,

although we are not bound by the major torts treatises or the American Law

Institute’s Restatement of Torts, it is significant that none of them recognizes

such a limitation on the rule. See, e.g., W. PAGE KEETON ET. AL., PROSSER AND

KEETON ON TORTS § 43, at 291–92 (5th ed. 1984); DAN B. DOBBS ET. AL., THE

LAW OF TORTS § 206, at 711–13 (2d ed. 2011); RESTATEMENT (THIRD) OF TORTS

§ 31 (AM. LAW INST. 2010). For example, the Restatement (Third) of Torts, § 31

provides that:

When an actor’s tortious conduct causes harm to a person that,

because of a preexisting physical or mental condition or other

characteristics of the person, is of a greater magnitude or different

type than might reasonably be expected, the actor is nevertheless

subject to liability for all such harm to the person.

Section 31’s Reporter’s Note further states:

Every United States jurisdiction adheres to the thin-skull rule;

more precisely, extensive research has failed to identify a single

United States case disavowing the rule . . . . The essence of this

rule prevents a defendant from seeking to avoid or reduce liability

because some characteristic of the plaintiff, however unusual,

combines with the tortious conduct of the defendant to produce

physical or emotional harm that is greater than might be expected,

unusual, or unforeseeable.

Id.

For these reasons, we conclude that the district court did not apply the

wrong legal standard in this case with regard to Koch’s preexisting medical

conditions.

was a single accident that resulted in totally disabling harm; there was no second accident

or intervening injury.

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B

The Government argues that the totality of the medical evidence

demonstrates that Koch’s preexisting conditions of spinal degenerative disease

and osteoarthritic disease of his knees had caused him to become disabled prior

to his fall on the Altair so that the district court’s findings of facts to the

contrary are clearly erroneous and should be vacated. 6

Because a finding of disability vel non is a finding of fact, the standard

governing appellate review of a district court’s finding of disability or lack

thereof is that set forth in Federal Rule of Civil Procedure 52(a): “Findings of

fact, whether based on oral or other evidence, must not be set aside unless

clearly erroneous, and the reviewing court must give due regard to the trial

court’s opportunity to judge the witnesses’ credibility.” The question before us,

then, is whether the district court’s failure to find that Koch was disabled prior

to his accident was clearly erroneous.

The general principles governing the exercise of our power to overturn

factual findings of a district court may be derived from the Supreme Court’s

cases and our own cases. “The foremost of these principles . . . is that “[a]

finding is ‘clearly erroneous’ when although there is evidence to support it, the

6 The Government’s brief initially states that that the district court erred in holding

that the accident was the “sole cause” of Koch’s damages. Such an argument is meritless

because the district court clearly did not find that Koch’s accident was the “sole cause” of his

resulting harm and disability. Rather, the district court found that the combination of his

accident with its exacerbation of his preexisting conditions was the cause in fact and legal

cause of his harm and disability. The somewhat more persuasive argument that the

Government makes is that Koch had been rendered disabled by his preexisting conditions

before his 2012 accident. This argument, too, is meritless, but it requires that we consider

all of the evidence to determine whether the district court clearly erred in finding Koch was

not disabled by his preexisting conditions prior to his accident.

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reviewing court on the entire evidence is left with the definite and firm

conviction that a mistake has been committed.” Anderson v. City of Bessemer

City, 470 U.S. 564, 573 (1985) (quoting United States v. U.S. Gypsum Co., 333

U.S. 364, 395 (1948)). “This standard plainly does not entitle a reviewing court

to reverse the finding of the trier of fact simply because it is convinced that it

would have decided the case differently. The reviewing court oversteps the

bounds of its duty under Rule 52(a) if it undertakes to duplicate the role of the

lower court.” Id.

Thus “[i]f the district court’s account of the evidence is plausible in light

of the record viewed in its entirety, the court of appeals may not reverse it even

though convinced that had it been sitting as the trier of fact, it would have

weighed the evidence differently. Where there are two permissible views of the

evidence, the factfinder’s choice between them cannot be clearly erroneous.” Id.

at 573–574 (citing United States v. Yellow Cab Co., 338 U.S. 338, 342 (1949)).

Similarly, “when a trial judge’s finding is based on his decision to credit the

testimony of one of two or more witnesses, each of whom has told a coherent

and facially plausible story that is not contradicted by extrinsic evidence, that

finding, if not internally inconsistent, can virtually never be clear error.” Id.

at 575–76.

Applying the foregoing principles in a review of the entire record in this

case does not leave us with “a definite and firm conviction that a mistake has

been committed,” see id. at 573, and so we cannot characterize as clearly

erroneous the district court’s finding that Koch had not been disabled by his

deteriorating spinal condition and his osteoarthritic knee condition prior to his

accidental fall aboard the Altair. In making its determination, the district

court credited the testimony of Koch, his wife, and his supervisor, all of whom

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bore witness to the fact that, prior to his accident aboard the Altair, Koch was

not disabled but was active in his job as foreman, in doing maintenance and

repairs at home, and socially. The district court also credited the testimony of

Koch’s treating physicians, Dr. Miranne, a neurosurgeon, and Dr. Finger, an

orthopedic surgeon, who testified that Koch had not been disabled by his

preexisting spinal and knee conditions prior to his accident. Dr. Miranne

testified that Koch had recovered from a cervical operation he performed on

him in 2008, that he had some intermittent symptomatology but was doing

well and had returned to work up until his accident. Dr. Miranne concluded

from his examinations, MRI readings, and surgery that Koch had sustained a

herniated disc at C6-7 in his fall aboard the Altair, which aggravated the

effects of his preexisting spinal disease and caused it to become totally

disabling. Dr. Finger concluded from his examinations that Koch’s fall had

aggravated his preexisting osteoarthritic knee conditions, painfully causing

him to urgently need bilateral surgical knee replacements. 7 Dr. Miranne and

Dr. Finger testified that all of the surgeries performed and planned by them,

with Koch’s consent, subsequent to Koch’s fall were necessitated by that

accident.

In contrast with Dr. Miranne’s findings, Dr. Hagemann, the

Government’s expert orthopedic surgeon, saw no signs or changes between

Koch’s MRI films taken before and after the 2012 accident. The radiologist

7 Although the record indicates other doctors had previously diagnosed Koch’s

preexisting osteoarthritic knee condition and advised him to undergo bilateral knee

replacement, Koch testified that he had not planned to have those operations until his 2012

accident; and Dr. Finger stated without contradiction that a physician does not recommend

such surgery if the patient chooses to function and to live with his knee pains.

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who made the films filed a report to the same effect. Based on these readings,

Dr. Hagemann thought it was unlikely that Koch had received a herniated disc

or had been seriously harmed by the 2012 accident. However, Dr. Hagemann

had examined Koch but once, on September 2, 2014, which was after the pre-

trial surgeries performed by Drs. Miranne and Finger and long after the

accident. No one except Dr. Miranne and Dr. Finger had performed surgery

on him. The district court resolved the conflict in the evidence in favor of the

testimony of the treating physicians, Drs. Miranne and Finger. Considering

all of the circumstances and reasons stated, we cannot say that the district

court’s determination was unreasonable or clearly erroneous. See id. at 574

(“Where there are two permissible views of the evidence, the factfinder’s choice

between them cannot be clearly erroneous.”).

C

Finally, the Government asserts that the district court erred by unfairly

limiting the testimony of its expert, Dr. Hagemann, and by crediting the

testimony of Koch’s treating physicians over that of Dr. Hagemann because of

that limitation. Dr. Hagemann examined Koch once on September 2, 2014,

reviewed some of Koch’s medical records, and prepared a pretrial expert report

expressing his opinion that Koch did not sustain a herniated disc or any serious

injury in his accident. Before his pretrial report, Dr. Hagemann had not yet

personally reviewed the MRI films but based his opinion on the radiologist’s

reports of them. By the time of the trial, however, Dr. Hagemann had reviewed

the films himself, and at trial the Government sought to have him testify, in

addition to his opinion based on the radiologist’s readings, that his opinion that

Koch had suffered no new disc herniation or other serious injury in the accident

was based on his own comparison of Koch’s MRI films before and after the

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accident. The district court sustained the Kochs’ counsel’s objection to the

enhanced testimony on the grounds that it was an improper attempt to amend

Dr. Hagemann’s pretrial report after the discovery deadline had passed and

would improperly allow Dr. Hagemann to testify as to other doctors’ reports

not included in his own report. The Government moved to make a proffer of

the evidence, and the court stated that it would permit the proffer at the end

of the trial. The Government did not make the proffer, however.

We review the evidentiary rulings of the district court under the

deferential abuse-of-discretion standard. Kelly v. Boeing Petroleum Servs.,

Inc., 61 F.3d 350, 356 (5th Cir. 1995). “District courts enjoy wide latitude in

determining the admissibility of expert testimony, and ‘the discretion of the

trial judge and his or her decision will not be disturbed on appeal unless

‘manifestly erroneous.’” Watkins v. Telsmith, Inc., 121 F.3d 984, 988 (5th Cir.

1997) (quoting Eiland v. Westinghouse Elec., 58 F.3d 176, 180 (5th Cir. 1995)).

Even if an abuse of discretion is found, the harmless error doctrine applies

unless a substantial right of the complaining party was affected. See Compaq

Comput. Corp. v. Ergonome Inc., 387 F.3d 403, 408 (5th Cir. 2004).

Having scoured the record, we are satisfied that the district court did not

abuse its discretion in ruling to exclude the additional testimony by Dr.

Hagemann about his review of the MRI films, particularly in light of the court’s

offer to allow the Government to make a proffer of it at the end of the trial.

But even if we were to assume, arguendo, that the district court erred in its

exclusion-with-proffer ruling and did so to the point of abuse of discretion, we

would still not reverse the district court’s judgment because, under the

circumstances, such an error clearly appears to have been be harmless. It was

plain that even without Dr. Hagemann’s excluded testimony on the subject

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that he and the radiologist, based on their reading of Koch’s MRI films, differed

from Dr. Miranne’s findings that Koch sustained a herniated disc at C6-7 and

suffered disabling exacerbating trauma as a result of his accident. But Dr.

Miranne’s opinion as the treating neurosurgeon who had, inter alia, performed

two surgeries on Koch’s cervical spine, was based on many other factors as well

as his reading of the MRI films. For these reasons and the others expressed

herein the district court’s decision to credit Dr. Miranne’s testimony over Dr.

Hagemann’s was not unreasonable or clear error.

For these reasons, the judgment of the district court is AFFIRMED.

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