1

The Honorable Henry E. Autrey, United States District Judge for the Eastern

District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 09-2914

___________

Alvin Howard, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the Eastern

* District of Missouri.

Missouri Bone and Joint Center, Inc., *

*

Appellant. *

___________

Submitted: April 12, 2010

Filed: August 12, 2010

___________

Before WOLLMAN, MURPHY, and SHEPHERD, Circuit Judges.

___________

SHEPHERD, Circuit Judge.

Appellee Alvin Howard brought this negligence action against Missouri Bone

and Joint Center, Inc. (“MBJC”), alleging that MBJC’s negligence caused the back

injury Howard sustained in 2001. The jury returned a verdict for Howard, after which

MBJC filed a motion for judgment as a matter of law or for new trial. The district

court1

 overruled that motion and this appeal followed. We affirm.
2

Squat lifts are an exercise that primarily strengthen the lower body. With a

barbell resting on the athlete’s trapezius muscles, “the hips and knees are flexed until

the knees come to a 90-degree angle to the floor. . . . The hips and knees are then

extended, back to the initial position and the exercise is repeated.” Ralph M.

Buschbacher et al., Sports Medicine and Rehabilitation 227 (2d ed. 2009).

-2-

I. 

As this appeal is from the denial of a motion for judgment as a matter of law,

we recite the facts of this case in the light most favorable to Howard, the prevailing

party. See Keenan v. Computer Assocs. Int’l, Inc., 13 F.3d 1266, 1268-69 (8th Cir.

1994). In the autumn of 2000, Howard was a student at Greenville College in

Greenville, Illinois, and a talented running back on the Greenville football team. On

November 21, 2000, following an ankle injury, Howard first visited MBJC, an

orthopedic and physical training clinic in St. Louis, Missouri. Howard was interested

in working out with an athletic trainer in order to improve his football skills. Kevin

Templin, a certified athletic trainer employed by MBJC, provided Howard with an

initial evaluation. This initial evaluation consisted of an interview, measurements, and

some performance testing. Templin asked Howard to estimate the maximum amount

of weight Howard could lift while performing certain exercises, including bench press

and squat lifts.2

 Importantly, however, Howard did not do any actual squat lifts on

November 21, although this was part of a standard MBJC evaluation. Templin

testified that this was because he simply ran out of time. Additionally, Templin did

not ask Howard when he had last exercised. In reality, Howard had not done any

lower-body workouts in the previous 12 weeks, due to his ankle injury. 

On January 8, 2001, Howard returned to MBJC to train under Templin’s

supervision. Templin employed a “pyramiding” technique with Howard, in which

Howard would lift progressively more weight, but with fewer repetitions per set.

Howard performed a number of exercises that day, including four sets of squat lifts,

without incident. Howard returned on January 10 for another workout with Templin.
-3-

In the middle of a ten-repetition set of squats, Howard felt a pop and a sharp pain in

his lower back. Howard immediately informed Templin of this pain, who responded

“no pain, no gain” and that Howard should “push through it.” (Trial Tr. vol. 2, 127.)

Howard was able to finish the set, during which his pain increased significantly.

Howard testified that his “pain went from . . . a 6 when it first happened to a 10

instantly.” (Id. at 130.) This pain ranged from Howard’s lower back, through his left

buttocks and down through his left leg. Following Howard’s completion of the set of

squat lifts, and at Templin’s instruction, Howard did some stretching and rode a

stationary bike, neither of which relieved his pain. 

After seeking treatment at various hospitals, Howard was eventually referred

to neurosurgeon Dr. Gregory J. Bailey. Dr. Bailey examined Howard on March 5,

2001, and diagnosed him with a herniated disc in his back. Dr. Bailey surgically

repaired Howard’s herniated disc on March 20, 2001. 

In August 2005, Howard filed this action against MBJC, alleging that MBJC

was negligent in three respects: (1) by failing to conduct a proper evaluation of

Howard before designing a workout program; (2) by instructing Howard to continue

to workout after being advised of his back pain during the workout; and (3) by failing

to discontinue Howard’s workout after being advised of his back pain. At trial,

Howard testified about his back injury and how it has affected his life and his

aspirations to play professional football. Templin testified about his recollection of

how Howard’s injury happened and about his training techniques. Templin admitted

that he did not note when Howard had last worked out, and admitted that this is

important information to consider when designing a workout. 

According to Dr. Bailey’s videotaped deposition testimony, which was played

for the jury, Howard’s injury “was causally related to” the January 10 incident, and

the injury caused Howard significant pain and permanently damaged Howard’s back.

(J.A. 15.) Finally, Mike Hadden, a certified athletic trainer and the Director of
-4-

Athletic Training at Simpson College, testified for MBJC about the standard of care

for certified athletic trainers such as Templin. Hadden testified that Templin’s actions

of telling Howard to continue lifting, even after Howard felt significant pain in his

back, constituted a violation of the standard of care. Hadden also testified that

Templin’s evaluation of Howard was proper, but admitted on cross-examination that

Templin should have tested Howard on squat lifts. 

At the close of all evidence, MBJC moved for judgment as a matter of law

under Federal Rule of Civil Procedure 50, which was denied. The case was submitted

to the jury on a disjunctive instruction, allowing the jury to rule for Howard if they

found that (1) MBJC committed any one of the three negligent acts alleged, and (2)

this negligence injured Howard. The jury returned a verdict for Howard in the amount

of $175,000. Shortly thereafter, MBJC filed a renewed motion for judgment as a

matter of law, or in the alternative, for a new trial, which was denied. 

II.

MBJC appeals the district court’s denial of its motion for judgment as a matter

of law, or in the alternative, for a new trial. We review de novo the district court’s

denial of a motion for judgment as a matter of law, using the same standards as the

district court. See Keenan, 13 F.3d at 1268. Under Rule 50, if “the court finds that

a reasonable jury would not have a legally sufficient evidentiary basis to find for [a]

party on [an] issue, the court may . . . grant a motion for judgment as a matter of law

against the party.” Fed. R. Civ. P. 50(a). On appeal, we “must not engage in a

weighing or evaluation of the evidence or consider questions of credibility,” Keenan,

13 F.3d at 1269 (quotation omitted), and “we must give great deference to the jury’s

verdict,” Heaton v. The Weitz Co., 534 F.3d 882, 889 (8th Cir. 2008) (quotation

omitted). “Judgment as a matter of law is appropriate only when all of the evidence

points one way and is ‘susceptible of no reasonable inference sustaining the position
-5-

of the nonmoving party.’” Keenan, 13 F.3d at 1269 (quoting White v. Pence, 961 F.2d

776, 779 (8th Cir. 1992)). 

The standard for granting a motion for new trial is higher still. Under Rule 59,

the decision to grant a new trial lies within the sound discretion of the trial court, and

its decision will not be reversed on appeal absent a clear abuse of that discretion. See

Lowe v. E.I. DuPont de Nemours & Co., 802 F.2d 310, 310-11 (8th Cir. 1986).

“Where the basis of the motion for a new trial is that the jury’s verdict is against the

weight of the evidence, the district court’s denial of the motion ‘is virtually

unassailable on appeal.’” Keenan, 13 F.3d at 1269 (quoting Peterson ex rel. Peterson

v. Gen. Motors Corp., 904 F.2d 436, 439-40 (8th Cir. 1990)). In such circumstances,

the court should only grant a new trial to avoid a miscarriage of justice. See Beckman

v. Mayo Found., 804 F.2d 435, 439 (8th Cir. 1986). 

A.

MBJC first argues that Howard failed to present evidence that two of MBJC’s

allegedly negligent acts—instructing Howard to continue working out after he told

Templin about his back pain, and failing to stop the workout after Howard told

Templin about his back pain—were causally related to Howard’s injury. MBJC

contends that the evidence presented at trial only established that Howard suffered a

herniated disc during his workout, not that he was injured by continuing to workout.

In this diversity case, Missouri substantive law applies. See Erie R.R. Co. v.

Tompkins, 304 U.S. 64, 78 (1938). Under Missouri law, to establish a claim for

negligence, a plaintiff must prove three principal elements: “(1) the existence of a duty

on the part of the defendant to protect the plaintiff from injury, (2) a failure of the

defendant to perform that duty, and (3) an injury proximately caused by the

defendant’s failure.” Blevens v. Holcomb, 469 F.3d 692, 694 (8th Cir. 2006). When,

as here, a verdict-directing “instruction is given in the disjunctive, there must be
-6-

evidence to support the submission of each allegation.” Ladish v. Gordon, 879

S.W.2d 623, 628 (Mo. Ct. App. 1994). While “[a]bsolute certainty is not required in

proving a causal connection between a negligent defendant’s actions and the

plaintiff’s injury,” Williams v. Daus, 114 S.W.3d 351, 359 (Mo. Ct. App. 2003)

(quotation omitted), the evidence must bring the causal connection beyond “the

nebulous twilight of speculation, conjecture and surmise.” Cowan v. Perryman, 740

S.W.2d 303, 304 (Mo. Ct. App. 1987) (quotation omitted). “A submissible case is

made if substantial evidence is presented that shows the injury is a natural and

probable consequence of a defendant’s negligence.” Williams, 114 S.W.3d at 359.

“Absent compelling evidence which establishes the absence of causation, the

causation question is for the jury.” Id.

After viewing the evidence in the light most favorable to Howard, we find

sufficient evidence on causation for the issue to go to the jury. Howard testified that

he felt a pop or pull in his back while lifting, and that this pain increased significantly

between when he felt this pop or pull and when he finished the set of squat lifts. Dr.

Bailey testified at his deposition about Howard’s symptoms, causally linking

Howard’s injury to his workout on January 10. Hospital records from January 15,

2001, indicate that Howard’s pain began during his workout, but that the tingling and

numbing sensation in his leg and foot—symptoms which are consistent with a

herniated disc—did not begin until after he finished the workout. Taken together, this

evidence is sufficient to bring the causal connection between MBJC’s negligence and

Howard’s injury beyond “the nebulous twilight of speculation, conjecture and

surmise[.]” Cowan, 740 S.W.2d at 304 (quotation omitted). As such, the question of

causation was properly presented to the jury and, although the evidence may be

susceptible of more than one reasonable interpretation, see Keenan, 13 F.3d at 1269,

the district court did not err in denying MBJC’s motion for judgment as a matter of

law on that issue. Additionally, because we see no miscarriage of justice in the

verdict, we hold that the district court did not abuse its discretion in denying MBJC’s

motion for a new trial on the causation issue.
-7-

B.

MBJC next argues that Howard failed to meet his evidentiary burden as to

MBJC’s third allegedly negligent act—failing to conduct a proper evaluation of

Howard. First, MBJC contends that Howard failed to present evidence that Templin

violated the standard of care for certified athletic trainers when he evaluated Howard

on November 21, specifically by failing to test Howard’s ability to do squat lifts and

failing to ask Howard when he had last worked out. 

At trial, Mike Hadden testified regarding the standard of care applicable to

certified athletic trainers. Hadden testified that Templin’s November 21 evaluation

of Howard was generally within the standard of care. However, on cross-examination,

Hadden admitted that some of Templin’s actions violated the standard of care:

Q So in this case, before Alvin Howard was permitted to do squats

in a training program, Mr. Templin should have tested him for squats,

shouldn’t he?

A In a situation where you want to get an idea of a repetition

maximum, the actual testing that was done from what I understand was

the actual -- he was using a portion of the weight of what he thought his

max was and then used percentages of that, which is a form of testing,

yes.

Q Okay. But the best information at the time of the needs

assessment on November 21, 2000 would have been to conduct that test;

correct?

A Yes.

Q And that’s what you would have done?

A Yes.

Q Okay. Mr. Templin didn’t do that is your understanding; is that

right?

A Yes.

Q His failure to do that would be a violation of the standard of care,

wouldn’t it?

A It wouldn’t be if he would have done it at a later date.
-8-

Q Okay. But he didn’t.

A Correct.

. . .

A You don’t necessarily have a needs assessment completely

performed before you move on to the actual exercise program. In other

words, in this particular case, again I don’t know the exact reason why

he just did the bench press and didn’t do the others, obviously you stated

to me that it was time, but Mr. Templin may have thought that he could

do the testing later at a later date when he actually goes through the

exercises.

Q Sir, you are speculating now; right?

A Yes.

Q You don’t know that?

A I don’t know that, no.

Q In fact, you did review his testimony, and the testimony he gave

was that he ran out of time?

A That is correct.

Q And that he never did any additional testing?

A Yes.

Q Okay. And assuming those facts to be correct, that would be a

violation of the standard of care for a certified athletic trainer, wouldn’t

it?

A Yes.

(Trial Tr. vol. 3, 72-74.) Additionally, Templin testified that he did not ask Howard

when he had last lifted weights, and that this would have been important to know in

order to ease Howard into a workout schedule and develop a proper workout plan.

Viewed in the light most favorable to Howard, see Keenan, 13 F.3d at 1268-69, this

evidence is sufficient to allow a reasonable jury to find that Templin breached the

standard of care of certified athletic trainers.

Second, MBJC argues that, even if Templin did breach the standard of care,

Howard presented no evidence that this breach was causally connected to his injury.

MBJC argues that Howard was required to show, by expert testimony: (1) what a

“proper” evaluation would have revealed; (2) what workout plan would have resulted
-9-

from such an evaluation; and (3) that had Howard been using this workout plan, he

would not have been injured. MBJC primarily argues that there is no evidence that

a “proper” evaluation would have somehow saved Howard from injury. We disagree.

While, of course, no one can say for certain that Howard would not have been injured

had he been properly evaluated, “[a]bsolute certainty is not required in proving a

causal connection between a negligent defendant’s actions and the plaintiff’s injury,”

Williams, 114 S.W.3d at 359 (quotation omitted). Here, Howard presented evidence

that “leads to the logical conclusion that if certain things had been properly done[,]

certain results would not have occurred, and such results did occur,” which is

sufficient to submit causation to the jury. Id. (quotation omitted). Given the

deference we must give jury verdicts, see Heaton, 534 F.3d at 889, we decline to

remove this case from the province of the jury, and we affirm the district court’s

denial of MBJC’s motion for judgment as a matter of law. Additionally, because we

see no miscarriage of justice in the verdict, we hold that the district court did not abuse

its discretion in denying MBJC’s motion for a new trial. 

III.

For the foregoing reasons, the judgment of the district court is affirmed.

______________________________