by observing the purpose of dahlberg which is of course to ensure the reliability of expert testimony but with the end goal of keeping junk science out of the courtroom and this case is not one involving junk science and i guess i'd start out with observing what this case is not it's not an environmental toxic tort case it's not a pharmaceutical products liability case where the jury needs to understand the interaction of drugs with within the body to cause cancer  forensic accounting case or anything of that nature what we have here is a fifty six year old woman who slipped and fell on a popped balloon aboard a cruise ship immediately felt pain and was diagnosed a few minutes later with a ruptured achilles tendon go through a little bit of the evidence on that which was available to dr herrera the plaintiff's expert and which he reviewed and discussed during the why dear she is there's actually a video of the accident ms keller is viewed walking without any difficulty even walking on her tiptoes with a balloon between her legs without any difficulty prior to the accident she then slips on the balloon there's evidence that she a loud or an audible pop felt a sharp pain in her calf and immediately fell to the ground within fifteen to twenty minutes of that she's loaded into a wheelchair and taken to the ship's infirmary where the defendant's own doctor conducted objective testing including an x ray and the simmons thompson test which confirmed or where after which he diagnosed her with a ruptured achilles tendon within a week of that of returning home to oklahoma she sees her physician who orders an m r i the m r i again provides objective evidence that she has a ruptured achilles tendon confirming the diagnosis of the ship or physician and within a week of that she is going to go to surgery to repair that herrera a board certified orthopedic surgeon who was the expert for the plaintiff in this case he physically examined miscount there he spoke to her about the injury he took her medical history confirming that she had never had any problems with her achilles tendon he reviewed past medical records including the ship physician's diagnosis of a ruptured achilles tendon and he implied his medical training and experience as a board certified orthopedic surgeon which has not been questioned by the f l the in this case his qualifications that is and then he did something that is not available to the vast majority of doctors in any case he was able to view  video of the incident confirming exactly what ms kellner told him it happened and he stated during his why deer quote that is exactly how people tear their achilles tendon and he didn't realize let me ask you this  wrong procedure if the judge bases the decision on clearly erroneous facts or if the judge commits a clear error of judgment which of those is your claim you are the one that is most clear here is that the district court applied the wrong legal standard the district court in two ways first of all it ignored the voluminous amount of case law which i won't repeat here it said in our briefs holding that a physicians methodology is reliable under where the physician has reviewed the patient's medical records as examine the patient and has applied the physics but that's another way of saying if i as i understand what the trial court did was she said  exercising her power to function there wasn't a quarrel with the qualifications of the expert there wasn't a quarrel with the third thing you have to show which is that it might be helpful to the jury on a matter that required expertise to it causation where she said you failed was the foundation or methodology upon which the open unit was generated so it's not that she had the law wrong but isn't that that she applied it incorrectly in this case that it was in a clear error of judgment is not really the heart who what you're saying your honor i was that was going to be my secondary point that at the very least it is a clear  judgment in her application of the standard and i would also submit that she one disregarded the case law holding that the methodology employed here is correct is reliable when you're dealing with a physician and there are several cases we've cited to that including a decision of the same district judge issued a week after the exclusion of dr her and this case but she also appeared to have accepted the defendant's iranis argument that a differential diagnosis is an absolute requirement when a physician is offering a causation opinion and we've cited the court to the sampson versus carnival case from two thousand and sixteen where magistrate judge tours examine the case law within the circuit and rejected the arguments in that case advanced by carnival which is the same argument that was advanced by the defendant below which the trial court again also appeared to accept that i didn't hear a that he had adequately ruled out these alternative causes so number one that's not the appropriate standard that's not required but number two to the extent it were required during the  doctor herrera did rule out the alternative causes or potential turn of causes and the one that the defendant really sort of advanced here was that based on the video mrs keller was able to stand up and limp through the rest of the perfect couples game and the defense position appeared to be that well she clearly didn't rupture achilles tendon because when she fell because it would been impossible for to walk around well on blood dear dr herrera explicitly address that and said no no she had a high grade partial tear and quote you're still able to function on the foot somewhat with a high grade partial tear and that's a documentary one thirty one pages two twenty two medical expert to establish causation if the interest is readily observable was an argued to this record there was some argument over that yes your honor below and the just record accepted the the other body of law that or at least fact my understanding from reviewing the record was that the that they accepted the defendant's argument that that she accept the defendant's argument that it's a soft tissue injury you can't visibly see the ruptured killie's tendon and therefore you needed you needed the expert evidence so that's not the heart of your argument on appeal before us it's not your are your argument is a different argument if i understand your argument as to the expert you're simply arguing on the issue of causation the trial judge's mistake was a clear abuse of discretion in precluded the expert from testifying that's your argument yes rather with a secondary argument being she also made a mistake of lore in so far as she required some differential analysis as a foundation for being able to opine about a matter like this correct ok appeals or the supreme court of florida ever required a differential analysis not that i'm as a foundation for an orthopedic surgeon to opine about causation you know out of the body of the case law is that the orthopedic surgeon or any treating physician is able to apply and based on a review of the records and examination of the patient and application of the surgeon or the doctor's training experience let me ask you a different question that that concerns me even assuming argue window that you are correct that the trial judge made a clear abuse of discretion in keeping out an expert opinion which was sufficiently well grounded to at least get a to a jury as i read district court opinion she went off on to alternate and independent grounds one was you didn't have any admissible evidence of medical causation that's fatal to a tort claim and second she said as you did not establish at trial that she suffered any damages resulting from the defendant's negligence yes the problem of that i have is not necessarily with the argument that might not have been an era as well but i don't read you as having preserved that error on appeal in this court in your blue brief i read your brief to say the judge i don't read you in that blue we've to have cited specifically as an independent ground that the judge was also wrong about her alternative holding on damages because after all you've got to establish duty breach causation and damages and if you fail on any of the four you lose so if there wasn't enough evidence on damages she was right to enter a directed verdict did you preserve the issue of damages and if you did show me where well in our briefing before this court it's that initial brief page thirty six where in fact we have a separate heading reversal that obert ruling requires reversal of the directed verdict and it's a very short heading but in that having the plaintiff expression we saw a reversal directed verdict quote on the issues of causation and damages the problem is if you look at our case law it's crystal clear about one thing what it says is you've got to tell us what you quarreling with we have to know what you think the trial court did wrong the heading in the brief there's not tell us that the having in the in the brief is that the district court made a mistake in excluding dr herrera's causation opinion that's the argument under a and therefore quote reversal of the dahlberg ruling requires your versal of the directed verdict the reason we've required it is because these cases are hard it's difficult enough for us to get the right answer but we sure want to know what it is that you're complaining about that the trial court did wrong so the response of grief can reply respond to to that but if you simply say the court was wrong on causation in keeping out dr herrera in exercising the d function but you don't say she was also wrong independently for reaching a conclusion about damages then we're stuck with what you argued and it's not a surprise that they would come back as they did and say well you didn't object to the alternative holding and you can't come back in your reply brief would you do and say see she was wrong about damages and bootstrap yourself that way how do we get around that even assuming argue when you're right about both issues and follow the problem that i had when you're over the time but undersized help me with this problem answer your honor's question  the problem is that the ruling on damages flows directly from is and is entirely dependent upon the exclusion of dr herrera's causation opinion or the right on the exclusion of d or has causation and i would point the court to two places in the record where that becomes abundantly clear during the final pretrial conference immediately after jury selection there were arguments on the objections to the exhibits which plaintiff had listed for trial and that's docket entry one sixteen at page one ninety nine and the defendant argued in the trial court agreed that unless and until the plaintiff's can establish causation which everybody knew at that point required the admission of dr herrera's testimony unless until that happens there's no way to get into the medical records or even for mrs kellner to talk about her not economic damages because there's no foundation but let's accept that that she was wrong about that then under florida law it's as clear as a bell that pain and suffering can establish a wholly independent basis for damages you don't need to show the medical bills to establish pain and suffering and pain and suffering would be altogether sufficient to establish damages and let's further assume that she got it wrong because she assumed that the only foundation for damages was the certainty of the medical bills she made a mistake let's just assume that do you go back and say to her in words or substance you've got that wrong judge i can prevail on damages even if i can show you any foundation for any medical bill because she was in a wheelchair for six weeks and she was disabled for six months etc do you argue that to her and then do you come back and argue that that was a mistake she made she conflated damages and thought it only included these medical bills but not this other business you want to the argument below was absolutely presented to the trial court  one thirty two page fifty seven and this is post the exclusion of dr herrera and plaintiff's trial counsel expressly stated that and i'm quoting here had missed kellner been able to testify regarding damages she would have been able to tell the jury about her post injury recovery period and the effect it had on the quality of i accept that the lawyer said that all i'm asking you is on  in the blue briefs did you come back to us and say the trial judge was wrong in two independent way our first holding was causation she was wrong because herrera was properly grounded and should have been admitted she was wrong independently about her damages because pain and suffering would state a claim and could go to the jury and she thought it couldn't did you say that in the blue brief you are out of there was the only mention of damages and we met was sufficient was in the during the factual presentation we discussed the damages and the import of the exclusion of dr herrera's testimony on the damages and we also in the cite that i've already provided the court of page thirty six stated that we're seeking a reversal directed verdict on causation and damages and so i would submit that the inextricable nature of the damages from the causation which is you know abundantly clear from the record would be even on page thirty six of the blue brief do you say the reason she's wrong about damages is because there was an independent foundation to wit her testimony that she sustained pain and suffering through i find even the words pain and suffering in the blue brief after checking whether the words are there but at thirty page thirty six they are not there you are why don't you do this you reserve your full time for for rebuttal and we'll see what your colleague has to say thank you thank you  morning in may please the court sack writer jordan cautious on behalf of the apple in this matter your own as i want to start if i may by highlighting the fact as judge howard you pointed out and judge marcus and wilson i believe as well that this is an abuse of discretion standard so i would start from the premise of when evaluating this judge is judge alton on this decision that the courts are not evaluate as your honor pointed out whether you agree or disagree but whether or not judge altoona made a decision that was one grounded in her exercise of discretion if we look also your honor and judge marcus i want to touch upon and start from the premise of this case and what this case is about from the appellant's perspective this has been advanced as a single issue brief the state appellants initial brief is quote whether the district court abused its discretion in excluding plaintiffs expert's opinion that plaintiff slip and fall on defendants cruise ship caused plaintiffs achilles tendon to rupture unquote we have photos in the in the record of her foot after the ruptured achilles tendon going to leave so your honor i do not i do not recall seeing photos per se and i also know that dr herrera certainly did not trial he testified that he reviewed an m r e do i have that wrong he reviewed an m r i report he never reviewed the images what about the x rays he said he did not review diagnostics i don't recall your honor if  thought what he said was he reviewed the record from the ship doctor including the x rays etc including specifically the x rays maybe i'm wrong maybe i got that wrong your honor there were in fact when dr described and there were two separate i'll call them causation opinions certainly when he first formed the causation opinion at the time of his deposition he acknowledged he had not looked at anything other than a single report and then when apparently when he got to the daubert hearing during trial he finding at some point of the achilles tendon that you can see and you can see the injury you're on or the question yes sure and the question is not about whether she suffered an injury whether or not it was caused by the fall and whether trial a lot of these cases and you're familiar with the body of law in florida and there's a substantial body of law in florida to support the proposition that you do not even need an expert if the injury  readily observable you're where that body of lie very much on your honor but here the injury was not readily observable for a few reasons i want to highlight a few a few points because i was going to touch right on that issue the question as this court held recently in rivera versus r caribbean when this court affirmed a summary judgment in a negligence case involving a fall on a ship much like this one and this court actually referred to the kellner district judge's decision for the following proposition when it causal link between alleged injuries and the incident at issue is not readily apparent to a lay person expert medical testimony as to medical causation is typically required this court continued citing to judge ultimate as district court decision kellner quote without medical expert testimony it is not possible to distinguish between the elements rivera experience before the fall and those she experienced after and due to the fall further due to the nature of the injuries that she alleges including for example back pain depression anxiety and vision issues expert testimony is simply required in order to even understand the nature and extent of the injuries but isn't that exactly why that case is not applicable listen to the injuries that the plaintiff is kim is describing as opposed to in this case there is a video that shows the woman falling she's immediately taken to the ship's physicians who diagnosis her with the torn achilles tendon it isn't that an incident that is fall into the category of an injury that is readily observable that does not require expert testimony multiple reasons your honor reason number one and we've cited to the court talker versus nike which is a district court decision where the court there specifically found that the nature and type of injury of an achilles rupture is one that is not readily observable and one that is not appropriately i addressed from causation analysis particularly with respect to expert testimony that's number one number not nailed by the right of course not your honor of course but i believe it's persuasive of course because it refers to the chilis sure but there is more your honor there's more number two dr herrera acknowledged during the daubert hearing that he never reviewed the second day of the shipboard medical report dr herrera acknowledged at that time that he had not reviewed that report and that report specifically found that ms kellner demonstrated no loss of active motor function dr herrera admitted on the stand that was not consistent with his opinion that this was in a killing i was in that code the weight rather than invisibility it  judge marcus to what you just referenced judge nelson the reason why this case does not present the kind of circumstance where and expert was not required is wound up not only in the nature of the injury would i would i would respectfully submit requires abused her discretion in excluding dr herrera they have never argued i asked him what did you make that argument to the district court and why did you make that argument on appeal that the if there is a finding of fact that the injury is not readily observable you know that may be a clearly erroneous fact because my understanding and there's  them is can be observable and your honor i'm not familiar with a case that specifically says that achilles rupture is the kind that's readily observable i'm personally not aware of that case but i do want to highlight from the we'd specificity what damages they were seeking so there's no evidence in this record that you can rely upon the established that you can look at her foot and see an injury after that slip and fall not that i'm aware of your honor in fact on the contrary on the contrary after the fall after the fall there was the second day evidence number one that was inconsistent with an achilles rupture at number two and this is also i would respectfully submit highly critical both to the issue that addresses your honour's question and to dr herrera's lack of reliability and let's assume let me i want to go to the heart of what troubles me about the ruling the delbert ruling and have you help me with it i understand your answer to be to the question judge wilson raised which was independent of herrera can't use that bullish causation anyway your answer was no i don't think you can but in any event they never made that argument and you never had a chance to respond and the district court never grappled with it that's correct you're on a case but i have a different question and they going to get it in their moving i understand we're going to the testimony of of herrera we know one that he is a qualified orthopedic surgeon so the first prong of d'albret the qualifications by background training and experience is met right no dispute about that's correct on and there's no dispute on prong three that expert opinion testimony would help jurors about a matter that folds with and peculiar expertise of  physician reliable expert testimony yes so the whole ballgame is the second prong the foundation or reliability he said he did the following things and i want you to tell me why in the aggregate that is not enough to take his opening into the jury one he said he took a clinical history of the plaintiff examined her to he said he reviewed everything that the ship doctor had and after all the ship doctor was closest to the injury when it had occurred and the ship doctor took an x ray the ship doctor used the simmons test the ship doctor took a history and the ship doctor diagnosed her with a rupture to kill east and three he had what an expert rarely would have which is actual visibility a video of the injury she's walking to find she's on the dance floor she puts a balloon between her knees and she falls and he has the opportunity to see by his account how she fell and how that reflected on the nature of the injury and then for beyond all of that he's had the opportunity to review the i report at least if not the m r i itself and so he says based upon all of this this is the kind of stuff that an expert like me would generally rely upon in opining about causation why wasn't it a clear abuse of discretion for a district court to say he doesn't come in and down pretty early number of reasons your honor reason number one i'll start from the premise that this was not a readily observable injury and it required an expert and that i would submit is undisputed by the appellant so when we look at what dr herrera did the totality of what he did he testified that looking at images radiographs are always extremely helpful but acknowledge that he did not do so in this case he indicated that he performed certain testing on his calendar but testified on page two twenty one documentary one thirty one that the testing he did has nothing to do determining the cause of his killer's achilles tendon rupture and he acknowledged that the two critical points here your honor go back to the fact that dr herrera it's not just what he did but it's what he failed to do it's the lack of a differential diagnosis which i would submit in this case was a necessary component of a causation analysis the reason being is that there were multiple reasons multiple alternative causes that dr who were identified when he planter flex position he said that he observed it but didn't consider it that goes to his reliability because he's acknowledging the existence of alternative method of causation but it meets during his testimony that he neither considered it nor ruled it out then that it goes to the heart of his reliability but the cases that talk about the importance of it of excluding other causes those are and those are in the toxic tort cases those are generally found in the general causation cases litany that judge marcus gave us which i had written down as well of what dr her did i don't identify an analytical leap other than perhaps what you're relying on which is the differential diagnosis it and i'll add other than that because i don't think i'm persuaded by the absence of a differential diagnosis your honor i understand and i would i would start from again respectfully submitting that it's it's ok to disagree with judge walton aga but the question is did she abuse her discretion in making that decision so i would just point that out but i want to answer your question more precisely what was critical here your honor was not simply dr her as failure to consider multiple alternative grounds but he didn't even recognize or acknowledge the fact kellner had an entirely separate injury atallah fibular ligament sprain and why that's important here is because yes he watched the video he sees ms kellner fall he then sees her limping during his expressly did you consider that as a possibility as to why she's limpid dr harris says i did not consider it he's asked well isn't it possible that that's the reason why she's limping he says it's certainly possible so what we end up with it goes to the heart of causation analysis and reliability is reason why we don't allow respectfully a person who's qualified to come before the jury and just say i watched the video i talked to the patient and i've concluded based on my evaluation that this is a causal link between this fall and this injury is to avoid it to dixit to avoid the fact that the fact that he is highly qualified will be misleading to the jury when when judge gave dr herrera multiple opportunities to evaluate me to explain his methodology and at the end of the day he when confronted with fact that there were many alternative causes that he knowledged to be possible target of cause considered excluded them is simply inaccurate when he said he did not again respectfully your honor he was asked did you see ms kellner plantar flexing he says i do see it he was asked do you consider that to be a possible alternative cause he says yes it is did you consider it he says no i did not he did not consider all these alternative causes he did not evaluate and critically analyze in a method a logical manner how he considered them out  yeah there's nothing else that could have done this but when confronted he couldn't answer those questions specifically as to the plant reflection and of course ultimately so so let me ask you a different question as time is really short you've gone over what i want you to help me with it didn't the judge who really error as a matter of law on the alternative holding in this case she says two things why she's entering a directed verdict one there was no proof of causation because the only foundation for causation was herrera and i'm keepin him out on the downward and she says to hold further plaintiff did not establish at trial she suffered any damages resulting from the defendant's and then she has a footnote and the footnote says if permitted to testify plaintiff's expert on treating physician herrera would have merely offered the opinion plain of sustained in injury to the  killie's and during the slip and fall notwithstanding that the court precluded herrera from testifying given his opinion failed to satisfy the requirements of da word even if allowed the opinion of the doctor would have rendered did not provide a the causal link or medical expenses incurred by the plaintiff as a result of the incident it certainly wouldn't have stablish medical expenses i think that's right but doesn't that ignore a completely different theory on which the plaintiffs traveled for damages to wit pain and suffering and couldn't they establish damages through the testimony of the plaintiff your honor i under the guise of pain and suffering under florida negligence law here is the problem with that from the perspective number one and i feel compelled to point out as your honor did they did not advance that or that's not my question though let's assume he had squarely raised the issue wouldn't she have made an error of law here well your honor if the answer is no what possible theory could a trial judge say you haven't established an author evidence to go to the jury on damages when the plaintiff is prepared to get on the stand and makes a proffer i was in a wheelchair for eleven weeks i couldn't walk for six months etc i suffered the following in dish of pain and suffering isn't that enough to take the question of damages to a jury if i had to wait the way you just framed it the way your honor just framed it is arguably enough because of the way or is there any question there's no way but that would say it's arguably not going to be any dispute about that well i'm going to i do like to i want to make sure i'm answering of course your honest question but i'm i keep on referring to the facts here and i'm not even to talk about the waiver issue the waiver i believe is clear but let me address one another point when asked specifically to identify the damages upon which ms kilner was seeking injury the only damag have ever identified throughout the pleadings when asked in iraq the transfer that was presented to the court and in open court they stated the the genesis the gist of their damages claim their pick their case comes from this achilles i think that's right but the comes a point where he makes a proffer to the judge and he says if mrs carroll would contest the far right she's going to tell you this pain and suffering that she sustained and those are damages isn't doesn't he say that to the trial judge yes your honor he does say that why isn't that sufficient to establish the element of damages i don't mean be you couldn't win on it but the only question is can you direct a verdict and take the question away from a jury  i think your honor here in the way your honor outlined the facts if a person has identified that very specific kind of claim and that's the intent that they wish to proceed on their case i would submit that that is enough but the plaintiffs didn't do it that way in this case and i i feel obligated to go back to that because the plaintiff is the architect of their claim the plaintiff advanced this case on the basis of an achilles issue you know on appeal they made it a single issue appeal they didn't even challenge the district judges alternative grounds as your honor correctly pointed out it doesn't even get mentioned in the answer in the initial brief it was only when i raised it to your argument here is really a simple one even if judge alta margo was wrong about  and the expert should have come in there is an independent ground there was no damages and he has an argument she made a mistake about that that it all it is and therefore he loses on those grounds that it's all loss of whether the trial advance an argument so yes although i do respectfully believe that judge al to not correctly exercise her discretion for all the reasons i've already stated that alternative ground which they have not challenged on appeal stands as an alternative basis to affirm the last thing i'll say and then i apologize for going over my time is that the various places where you can see all the things that dr herrera recognized as alternatives yet fail to explain how or whether he even considered them is that documentary one thirty one page two hundred through two hundred five and he acknowledges alternative causes and admits that he did not consider or rule them out in this case i believe that to supports judge alton agas discretion thank you for your time i think you question testimony that after the injury he could see her toes dangling unnaturally that of course it was readily observable to a lay person her husband the medical record the ship's medical record also indicates that there was swelling  them it's readily observable not in those terms rather than any terms that you are give that well the corollary argument was that under florida law that the pain and suffering damages which is sort of not withstanding whether it's did judge wilson's asking a question that goes to to causation itself but let me ask you this tell me where when i look in the record i can find that you argued in the district court what you just said to judge joe wilson i'm sorry with respect to the the red the readily observable yet where did you argue to the district court that we need not establish causation from an expert although we think we can do it that way we have another way and we think causation is established independently simply from the  readily observable nature of this injury therefore regardless of what you say about herrera right wrong or indifferent we still get to the jury on causation you said in response to judge wells and if i heard it right that you made that argument in the district court i'll just show me help me where can i find out in the record you want it in words or substance it is in docket entry one thirty two unfortunately i don't have the page citation readily available if the court would like i can spend a few moments looking for it but there was actually even citation to a new jersey either state or federal opinion by trial coun that discusses sort of this distinction between readily observable and not readily observable but the point being that you don't need new jersey law because there's a substantial body of florida law that establishes that correct your honor and this was you know what  the best trial counsel could come up with on the fly at trial but your honor is correct and the point being that the argument was made that even if we don't have him this is a readily observable injury  this is difficult to do from the lectern it was well if you think it's going to take you through some time we'll let you submit a supplemental letter response to us within ten days council absolutely and i'd be happy to do so  confident that it's there i did revealed let's unfortunate in that there's no question though that in response to judge wilson's question to you you didn't make that argument on appeal before us that a judge al to nagel was wrong for two reasons on causation first she got d'albert wrong and second you didn't need d'albert there was a wholly independent basis to establish causation which they had have you had to establish and it was from the readily observable nature of the injury do you say that anywhere in the blueberry i know you are would you not so that's not an argument you reserve before us we're really hearing it for the first time on oral argument right it's not in the brief for others would you help me again with the damages do you have anything else that you wanted to add to why he's not right that you didn't preserve the issue that the judge made a mistake on damages before us i would say your honor that is that it's apparent on the face of the record that the two in shoes are clearly inextricably intertwined the plaintiff or how are they in extra completely intertwined on damages i thought there were two disparate and distinct theories of damages one is you had surgery you had medical bills surgical bills etc and you didn't lay the foundation for that and a wholly distinct theory was notwithstanding that she sustained pain and suffering and that's a good basis those are two different methodology of the damages where did you argue the second correct your honor they are i mean in this court but both of them flow from the exclusion of dr herrera the district court made very clear that you are not mrs keller is not going to be able to discuss her pain and suffering nor is the plaintiff going to be able to get in any of these medical bills or medical records because there's no foundation because they are irrelevant because none of those injuries none of that pain none of that suffering has been connected to the slip and fall on the cruise ship and that was i think readily apparent from our initial brief playing it was in the judge's order defendant was able to raise it in the answer brief although not addressing the merits of it simply coming forward and saying well yes they raised in their initial brief but they haven't really you know laid it out for you so that it's been deemed abandoned so i would just say that we would submit that we've done enough to place them on notice and preserve the argument thank you very much thank you both for your efforts i characters and will proceed with the next case