NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 09-2216

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JAMES MCNAMARA, 

 Appellant

v.

KMART CORPORATION

 

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On Appeal from the District Court of the Virgin Islands 

(D.C. No. 08-cv-00018)

District Judge: Timothy J. Savage

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Submitted Under Third Circuit LAR 34.1(a)

May 6, 2010

Before: SMITH, CHAGARES and JORDAN, Circuit Judges.

(Filed: May 14, 2010)

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OPINION OF THE COURT

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JORDAN, Circuit Judge.

This appeal arises out of appellant James McNamara’s personal injury lawsuit

against appellee Kmart Corporation (“Kmart”). McNamara’s negligence claim was tried

to a jury in the District Court of the Virgin Islands of the United States. In accordance
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with the jury verdict, the District Court entered judgment in favor of McNamara and

against Kmart in the amount of $72,000. McNamara appeals certain evidentiary rulings

and requests a new trial on damages. Because we write only for the benefit of the parties,

we assume familiarity with the facts of this civil action and the proceedings in the District

Court. For the following reasons, we will affirm. 

I. Background 

A. Factual Background

The underlying facts are straightforward. On January 24, 2008, McNamara was

walking inside a Kmart store in Fredericksted, St. Croix, when he slipped on feces. As he

slipped, he turned to grab onto something to prevent himself from falling. In the course

of grabbing onto a stack of paper towels, he twisted and injured his back. He then sued

Kmart, alleging that its negligence proximately caused his injuries. After a trial, the jury

found that Kmart’s negligence was a substantial factor in causing McNamara’s injuries

and awarded him $72,000 in damages. 

B. Evidentiary Rulings 

The jury trial began on March 16, 2009. In advance of the trial, Kmart filed

several motions in limine to preclude McNamara from presenting certain evidence at trial. 

Relevant to this appeal, Kmart argued that the testimony and reports of McNamara’s

experts Dr. Gary Jett, Susan McKenzie, and Robert Johnson should all be excluded under

Rules 702 and 403 of the Federal Rules of Evidence. Dr. Jett, a physiatrist, was offered
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by McNamara as a treating physician and a medical expert; McKenzie was offered as a

vocational rehabilitation expert; and Johnson was offered as an economic expert. 

In a written order issued before the trial, the District Court denied Kmart’s motion

to exclude the testimony of Dr. Jett. At trial, however, the District Court ruled that Dr.

Jett could not testify about McNamara’s future needs for housekeeping and home

maintenance services and grab bars near his toilet and tub, explaining that there was no

adequate foundation in his report for such expenses. With regard to McKenzie and

Johnson, the District Court ruled in a separate written order that McKenzie was permitted

to “opine on the effects of the functional disabilities upon the occupational opportunities

of [McNamara],” but was not allowed to “opine on the cost of [McNamara’s] future

medical and psychological treatment” or “on amounts of [McNamara’s] future loss of

income and loss of capacity to earn income.” (App. at 221.) In the same order, the Court

granted Kmart’s motion to exclude the testimony and opinion of Johnson. The District

Court did not provide explanations for its rulings as to McKenzie and Johnson. 

Two other evidentiary rulings are also at issue in this appeal. During the trial, the

District Court prevented McNamara from testifying that he only continued to work out of

economic necessity and also prevented him from entering his income tax returns and pay

stubs into evidence. The District Court did not explain the first ruling, but stated that the

tax returns and pay stubs would not be allowed into evidence because they were not

relevant to or probative of McNamara’s future earnings. 
 The District Court exercised diversity jurisdiction pursuant to 28 U.S.C. § 1332. We 1

have jurisdiction pursuant to 28 U.S.C. § 1291. 

 By a Notice of Withdrawal dated February 22, 2010, McNamara withdrew all 2

arguments related to the District Court’s failure to conduct hearings pursuant to Daubert

v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). 

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After the judgment in favor of McNamara was entered, he filed a timely notice of

appeal. 

II. Discussion1

On appeal, McNamara raises several challenges to the District Court’s evidentiary

rulings. First, McNamara complains that the Court abused its discretion when it

prevented Dr. Jett from testifying about McNamara’s future medical, home maintenance,

and home modification needs (“life-care needs”). Second, he argues that the Court

abused its discretion when it excluded McKenzie’s opinion and testimony about his future

life-care needs, future lost income, and loss of capacity to earn income. Third, he

contends that the Court abused its discretion by excluding the testimony and opinion of

Johnson. Fourth, he argues that the Court abused its discretion when it prohibited him

from testifying that he continued to work out of economic necessity. And fifth, he asserts

that the District Court abused its discretion when it excluded his tax returns and pay

stubs.2

We review a district court’s evidentiary rulings for abuse of discretion. McKenna

v. City of Philadelphia, 582 F.3d 447, 460 (3d Cir. 2009); Pineda v. Ford Motor Co., 520

F.3d 237, 243 (3d Cir. 2008). Here, Kmart filed motions in limine to have the opinions
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and testimony of Dr. Jett, McKenzie, and Johnson excluded under Rules 702 and 403 of

the Federal Rules of Evidence. Rule 702 permits expert testimony when “(1) the

testimony is based upon sufficient facts or data, (2) the testimony is the product of

reliable principles and methods, and (3) the witness has applied the principles and

methods reliably to the facts of the case.” Fed. R. Evid. 702. We have observed that

“Rule 702 has three major requirements: (1) the proffered witness must be an expert, i.e.,

must be qualified; (2) the expert must testify about matters requiring scientific, technical

or specialized knowledge; and (3) the expert’s testimony must assist the trier of fact.” 

Pineda, 520 F.3d at 244. “A trial judge acts as a gatekeeper to ensure that any and all

expert testimony or evidence is not only relevant, but also reliable.” Id. at 243 (internal

citations and quotations omitted). 

For its part, Rule 403 allows a district court to exclude relevant evidence “if its

probative value is substantially outweighed by the danger of unfair prejudice, confusion

of the issues, or misleading the jury, or by considerations of undue delay, waste of time,

or needless presentation of cumulative evidence.” Fed. R. Evid. 403. “A trial judge’s

decision to admit or exclude evidence under [Rule 403] may not be reversed unless it is

arbitrary and irrational.” McKenna, 582 F.3d at 461 (internal citations and quotations

omitted). 
 In the argument sections of his briefs, McNamara does not specify which future 3

medical need the District Court erroneously excluded testimony on, but his opening brief

could be read to argue that the Court erred by excluding Dr. Jett’s testimony as to

McNamara’s future need for lumbar surgery. (Appellant’s Br. 7, 16.) If that is

McNamara’s argument, we see no abuse of discretion. First, McNamara has not

identified where in the record the District Court ruled that Dr. Jett could not testify about

McNamara’s need for lumbar surgery. Second, Dr. Jett referred McNamara to an

orthopedic surgeon, Dr. Chase, for evaluation, but McNamara apparently withdrew

Dr. Chase as a witness before trial and has not directed us to any reliable basis for Dr.

Jett’s determination that McNamara would require lumbar surgery in the future. 

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A. Dr. Jett’s Testimony As To McNamara’s Future Medical Needs And Future

Life-Care Needs 

 Although McNamara complains that the Court erred by excluding “all testimony

related to [his] future medical needs” (Appellant’s Br. 37), that contention is not

supported by the record. The District Court allowed Dr. Jett to testify about McNamara’s

future medical needs, including his future needs for physical therapy, physical therapy

evaluations, orthopedic evaluations, physiatrics evaluations, medication, and future

diagnostic testing. Dr. Jett provided testimony as to the approximate cost for each

treatment or evaluation and the frequency with which McNamara would need them. 

Thus, Dr. Jett was permitted to testify about McNamara’s future medical needs, and we

see no error in the District Court’s decision. 

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Second, McNamara argues that the District Court erred by excluding Dr. Jett’s

testimony regarding his future life-care needs. The District Court explained that it

refused to allow Dr. Jett to testify as to those future needs because there was no support in

his report for such expenses. In the report, Dr. Jett stated that McNamara would need a
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housekeeper for four hours per week for the next ten years of his life, help with home

maintenance once a month for ten years, and the installation in his home of grab bars in

his tub and a raised toilet seat with grab bars. The report, however, does not state why

these expenses were necessary as a result of McNamara’s injuries. Although McNamara

argues that his own trial testimony established that these expenses were necessary, his

testimony does not obviate the requirement in Rule 702 that expert opinions be based on

sufficient facts. Thus, the District Court did not abuse its discretion by excluding the

evidence under Rule 702 based on its conclusion that the recommendations were not

adequately supported by Dr. Jett’s reported medical findings. 

B. McKenzie’s Opinion And Testimony Regarding Future Life-Care Needs,

Future Loss Of Income, And Loss Of Capacity To Earn Income 

McNamara argues that the District Court abused its discretion by limiting the

scope of McKenzie’s opinion and testimony with regard to McNamara’s future life-care

needs, future loss of income, and loss of capacity to earn income. The District Court

entered the order limiting McKenzie’s testimony after the parties fully briefed Kmart’s

motion in limine to exclude her opinion and testimony under Rules 702 and 403. In the

motion in limine, Kmart argued that McKenzie’s opinion with regard to McNamara’s

future medical and life-care needs was outside the scope of her expertise and that her

conclusions as to McNamara’s loss of income and loss of capacity to earn income would

not be useful to the jury. Although the District Court did not explain its reasons for

limiting McKenzie’s testimony to her opinion “on the effects of the functional disabilities
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upon the occupational opportunities of [McNamara],” we believe its reasoning is apparent

from the record. 

First, McKenzie’s opinion and testimony as to McNamara’s future life-care needs

was properly excluded. That proposed testimony was based entirely on Dr. Jett’s report. 

Because the District Court found that those aspects of Dr. Jett’s opinion were not based

on sufficient facts, McKenzie’s testimony on the same subjects was also necessarily

excluded. 

The Court also acted within its discretion when it precluded McKenzie from

testifying to the “amounts of [McNamara’s] future loss of income and loss of capacity to

earn income.” (App. at 221.) Importantly, McKenzie’s report did not specify the amount

of McNamara’s future loss of income or otherwise quantify his loss of capacity to earn

income. Instead, McKenzie’s report stated that McNamara worked at a “sedentary office

job” and that “his job tasks fit within [his] physical limitations.” (App. at 101.) And,

although her report states that McNamara was concerned about his productivity, it does

not indicate that he was unable to perform his job as a result of the injuries. Furthermore,

McKenzie evaluated McNamara’s loss of income and work capacity and found that

“McNamara is not currently experiencing lost wages. He is currently working within his

physical restrictions and therefore, hopefully can remain in his high paying job with the

Government.” (App. at 102.) McKenzie’s report did not include any information about

other employment opportunities that might be available to someone with McNamara’s
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skills and limitations or about the relevant labor market. Because there was no basis in

her report for any opinion on the amounts, if any, of McNamara’s future loss of income

and loss of capacity to earn income, McKenzie’s testimony on those subjects was

properly excluded under Rule 702.

McNamara also argues that the District Court erred by excluding other evidence he

wanted to offer about his future loss of income and loss or impairment of earning

capacity. The record does not support such an argument. At trial, McNamara testified

that working caused him additional pain and that he was concerned about whether he

could continue to work and provide for his family. Dr. Jett testified that McNamara had

difficulty working because of the pain he experienced after sitting for lengthy periods of

time. McKenzie also testified as to McNamara’s physical limitations and the effect those

limitations would have on his labor opportunities. During her direct examination, she

was asked if McNamara’s “ability to get and obtain employment changed since the

accident[.]” (App. at 510.) She answered, “Yes. Definitely. When a person ... such as

McNamara has[] functional disabilities ... it basically affects their ability to be able to

walk out into the labor market and into another job that ... he might have been able to

perform prior to this injury.” Id. Thus, the record shows that McNamara was allowed to

present evidence as to his future loss of income and loss or impairment of earning

capacity, and, accordingly, we find no error. 
 On appeal, McNamara does not challenge the portion of the District Court’s order 4

preventing McKenzie from testifying as to McNamara’s future medical needs. We think

it is clear that McKenzie, a vocational rehabilitation expert, was not qualified to opine as

to these needs. 

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C. Johnson’s Expert Testimony And Opinion

Next, McNamara argues that the District Court abused its discretion by excluding

the opinion and testimony of Robert Johnson. Again, we disagree. Before the District

Court, Kmart argued that Johnson’s testimony should be excluded under Rule 403 as a

waste of time and under Rule 702 as unhelpful to the jury. In his report, Johnson summed

up McNamara’s future medical and non-medical expenses, as reported by McKenzie, and

calculated the present value of those expenses. The District Court did not err in

prohibiting McKenzie from testifying about McNamara’s future medical and non-medical

expenses. Because McKenzie was not permitted to testify about these expenses, 4

Johnson’s testimony, which was dependent on McKenzie’s, was also properly excluded. 

D. Evidence That McNamara Worked Despite His Pain And Because of

Economic Necessity

McNamara also argues that the Court erred by excluding his testimony that he

continued to work while in pain out of economic necessity. Although the Court did not

explain its decision to exclude this testimony, we conclude that, if it were error, it would

certainly be harmless. See Great Am. Ins. Co. v. Norwin School Dist., 544 F.3d 229, 251

(3d Cir. 2008) (“An erroneous evidentiary ruling will be considered harmless if it is

highly probable that the district court’s [ruling] did not affect [the party’s] substantial
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rights.” (internal citations and quotations omitted)). During the trial, McNamara was

permitted to testify that he frequently had to get up from his desk to relieve his pain and

that working exacerbated his back pain. In the context of his answers on the pain he

experienced during work, he was asked if he thought about “stopping work.” (App. at

349.) He answered, “If I could, I would.” Id. McNamara’s attorney further explained his

testimony during the closing, stating, “He’s got the whip of economic necessity. He

doesn’t have the money not to be able to work ... . [Y]ou heard him, if he had the ability

not to be able to work, he would stop, because of the pain.” (App. at 703.) Given

McNamara’s testimony and his counsel’s subsequent argument, a reasonable jury would

understand that McNamara continued to work in order to maintain his income. We find

no reversible error. 

E. Tax Returns And Pay Stubs 

Finally, McNamara argues that the District Court erred by preventing him from

introducing his tax records and pay stubs into evidence. Again, if this were error, it was

also harmless because the jury was repeatedly informed of McNamara’s salary during the

trial. First, McNamara testified at trial that he was making $70,500 per year on the date

of the incident at Kmart. Second, McKenzie also testified about the approximate amount

of McNamara’s salary at the time of the accident and at the time of trial. Third,

McNamara’s attorney informed the jury during her closing argument of the amount of

McNamara’s salary at the time of trial. Thus, the jury was fully aware of the amount of
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McNamara’s income, and McNamara was not harmed by the District Court’s decision to

exclude this evidence. 

III. Conclusion 

Finding no error in the District Court’s evidentiary decisions, we will affirm the

order of the District Court.