The Honorable Stephen M. Reasoner, Chief Judge, United States District Court 1 for the Eastern District of Arkansas, sitting by designation. The Honorable John B. Jones, United States District Judge for the District of 2 South Dakota. United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ Nos. 96-3247/3312

___________ Leonard Penney; Helen Penney, * * Appellants/Cross-Appellees, * * Appeals fr om the United States District v. * Court for the District of South Dakota. * Praxair, Inc., * * Appellee/Cross-Appellant. *

___________

Submitted: March 14, 1997 Filed: June 19, 1997

___________ Before WOLLMAN and BEAM, Circuit Judges, and REASONER, District Judge. 1

___________ BEAM, Circuit Judge.
Leonard and Helen Pen ney appeal the district court's denial of their motion for 2 a new trial and the exclusion of certain medical evidence in this personal injury action.According to the plaintiffs' s ubmissions, closed head injuries are subtle tears in 3 the brain tissue. Because the MRI and CT scans measure structural, not functiona l changes in the brain, closed head injuries are oftentimes not visible on those tests. -2- Praxair cr oss-appeals the district court's denial of judgment as a matter of law as t o future medical expenses. We affirm.

I. BACKGROUND

This is a diversity action seeking damages for a rear-end collision whic h occurred in Iowa. Leonard Penney was sleeping in the front passenger seat of a car that was hit by a loaded tanker truck owned by Praxair. B ecause the accident occurred in a constructi on zone with reduced speeds, the truck was traveling at only five to ten miles per hour when the collision occurred. Upon impact, Leonard's head jerke d backwar d and then snapped forward, resulting in a whiplash effect. Leonard claim s that he suffers headaches, a sore nec k, ringing in his ears, dizziness, vertigo, and other assorted problems as a

result of this accident. Leonard was sixty-two years old at the time of the accident.
Leonard saw several physicians for relief of his ailments. After both an MRI and a CTscan detected no brain injury, Leonard was referred to Dr. Wu, the Director of 3 the Brain Imag ing Center at the University of California, Irvine. Dr. Wu performed a Positron Emission Tomography (PET) scan of Leonard's brain. A PET scan measures glucos e intake in the different sections of the brain; i.e., it measures brain function

. Hose v. Chicago Northwestern Transp. Co. , 70 F.3d 968, 973 (8th Cir. 1995). A person's PET scan is then compared with PET scans from a control group to detec t abnormalities in the brain. The cont rol group in Leonard's case consisted of thirty-one persons, wi th ages ranging from eighteen to seventy. Dr. Wu testified, in a vide o deposition, that the results of Leonard's PET scan showed brain abnormalities which-3-

were consistent with a trau matic brain injury. Plaintiffs intended to use this testimony to prove the existence of a closed head injury.

Praxair filed a motion in limine to exclude the PET scan e vidence. It argued that it was not reliable enough to withstand analysis under the Supreme Court's decision in Daubert v. Merrell Dow Pharm., Inc. , 509 U.S. 579, 597 (1993) and that the evidence would not be helpful to the jury. The district court excluded the PET scan results , reaso ning that the evidence would not be helpful to the jury in deciding the issue s when compared with the likelihood that the jury would misapply the evidence.

The action was tried and the jury found for the plaintiffs. Although it awarded $14,60 2 for past medical expenses and $20,000 for future medical expenses, the jury awarded no damages for loss of function or for pain and suffering. The Penneys moved for a new trial, claiming such a verdict was fac ially inconsistent and invalid as a matter of law. The district court denied the motion. On appeal, the Penneys challenge th e distr ict court's denial of their motion for a new trial and its exclusion of the PET scan evidence. Praxair c ross-appeals, arguing there is no evidence to support the award of future medical damages.

II. DISCUSSION

A. New Trial
The Penneys argue th at a new trial on damages is necessary to cure the facially inconsistent verdict handed down by the jury. We review the district court's denial of a new trial for an abuse of discretion. Morrison v. Maha ska Bottling Co. , 39 F.3d 839, 845 (8th Cir. 1994). Applying that standard, we find no error.Sitting in diversity, a district court is bound to apply the choice of law rules of 4 the s tate in which it sits, here, South Dakota. Simpson v. Liberty Mut. Ins. Co. , 2 8 F.3d 763 , 764 (8th Cir. 1994). South Dakota has adopted the most significan t relationship test as its choice of law rule in tort cases. Chambers v. Dakotah Charter, Inc. , 488 N.W.2d 63, 67 (S.D. 19 92). The district court determined that Iowa had the most significant relationship to this accident and, consequently, applied Iowa law. On appeal, the defendants challenge the application of Iowa law as to the damages issue only. We find no merit in this argument and apply Iowa law to this case, as did th e district court. -4- Under Iowa law, whether a particular award of damages is adequate turns on

4 the facts of each case. Matthess v. State Farm Mut. Auto. Ins. Co. , 521 N.W.2d 699, 702 (Iowa 1994). The test is whe ther the verdict "fairly and reasonably compensates" a person for the injury sustained. Id. The mere f act that the evidence presented at trial could have supported a higher damages award does not control the decision to gran t
a new tr ial. Foggia v. Des Moines Bowl-O-Mat, Inc. , 543 N.W.2d 889, 891 (Iow a 1996). Instead, the court must determine whether, all owing the jury "its right to accept
or reject whatever portions of the conflicting evidence it chose, the verdict effect s substantial justice between the parties." Id.

In this case, Praxair disputed both the extent of Leonard's injuries and whether the collision proximately caused any pain and suffering. Before the accident, Leonard experienced neck and back problems. Between the time of the accident and trial, he had a heart attack and two angioplasty surgeries. These pre- and post-accident health problems are properly for the jur y's consideration. McDonnell v. Chally , 529 N.W.2d 611, 615 (Iowa Ct. App. 1994 ). The jury had a difficult decision to make considering the ev idence offered to discount Leonard's pain and suffering and to show alternative causes for his injuries. Given the conflicting evidence in this case, we find the damages award fa irly and reasonably compensated Leonard for his injury. Consequently, w e find no abuse of discretion by the district court in denying the plaintiffs' motion for a new trial on these grounds.-5-

B. PET Scan
The plaintiffs next contend that the distric t court erred in excluding the evidence of Le onard's PET scan. Questions regarding the admission of expert evidence ar e committed to the sound discretion of the district court and will only be reversed upon a finding of an abuse of that discretion. Westcott v. Crinklaw , 68 F.3d 1073, 1075 (8th Cir. 1995). Applying that standard, we find no abuse of discreti on in the district court's decision to exclude the PET scan evidence in this case.
General acceptance in the scientific community is no longer a pr econdition to the admission of scientific evidence. Daubert , 509 U.S. at 597. However, a trial judg e must still ensure that "an expert's testimony both rests on a reliable foundation and is relevant to the task at hand." Id. "This entails a preli minary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and o f whet her that reasoning or methodology properly can be applied to the facts in issue." Id. a t 592-93. In this case, plaintiffs failed to establish a sufficient foundation t o support the admission of the PET scan evidence.
According to the parties' submissions, PET scan results can be affected by a person's age, medical history and medications. Because Leonard was sixty-six years old at th e time of the scan, it is not clear from the record exactly how accurate a comp arison this control group could provide. Furthermore, although persons ar e normally instructed

to remain off medication for seven days prior to the administering of a PET scan, Leona

rd submitted to the test while still taking his regular medications for his heart condition and other maladies. None of the other control-group subject s was on medication at the time o f their PET scans. It is not clear whether these factors had an y effect on the test results. However, it was plaintiffs' burden to establish a reliable foun dation for the PET scan readings. On these facts, plaintiffs did not makeAs the plaintiffs point out, we have previously upheld the admission of PE T 5 scan evi dence. See , e.g. , Hose , 70 F.3d at 973. However, because the admission of scientific evidence in o ne case does not automatically render that evidence admissible in another case, we assume that Hose did not present the same evidentiary problems as does this case.
-6- such a demo nstration and it was within the district court's discretion to exclude th e evidence. 5
C. Future Medical Expenses

Praxair cross-appeals the district court's denial of its motion for judgment as a mat ter of law on the award of future medical expenses. Praxair claims there i s insufficient evidence in the record to support such an award. We review the denial of a motion for judgment as a matter of law de novo, Kaplon v. Howmedica, Inc. , 83 F.3d 263, 266 (8th Cir. 1996), viewing the evidence in the light most favorable to the jury verdict. Sm ith v. World Ins. Co. , 38 F.3d 1456, 1460 (8th Cir. 1994). We do no t reweigh the evidence or consider the credibility of the witnesses. Id. Although damage awards ma y not be speculative or conjectural, but must be proven to a reasonabl e certainty, Marquardt v. Starcraft Marine , 876 F.2d 61, 63 (8th Cir. 1989), judgment as a matter of law is only appropriate where the evidence is "'susceptible of no reasonable inferen ce sustaining the position of the nonmoving party.'" Smith , 38 F.3d at 146 0 (quotin g White v. Pence , 961 F.2d 776, 779 (8th Cir. 1992)). Applying thos e standa rds, we find that there is sufficient evidence in the record to support the jury' s award of future medical expenses.
The jury was pre sented with evidence of Leonard's need for additional medical att ention. Both of the Penneys testified that Leonard continued to suffer symptom s fr om the accident and that they intended to continue seeking treatment for Leonard' s pain, in spite of their previous lack of success. In addition, several of Leonard's doctors-7-

testif ied that Leonard will require medication and treatment in the future. I n determini ng the amount of future damages, the jury was presented with itemized bills of past medical expenses and instructed to consider the reasonably necessary medical expe nses to be incurred in the future. From this evidence, the jury could reasonabl y estimate the cost of future medical expenses. See , e.g. , Baumler v. Hemesath , 53 4 N.W.2d 650, 654 (Iowa 1995). This record contains sufficient evidence to sustain the jury's award of future medical expenses.

III. CONCLUSION
The judgment of the district court is affirmed.
A true copy.
ATTEST: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.