1 The Honorable Carol E. Jackson, Chief Judge, United States District Court for the Eastern District of Missouri. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 05-3191

___________ Karla Robinson, * * Appellant, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. GEICO General Insurance Company, * * Appellee. *

___________ Submitted: February 13, 2006 Filed: May 19, 2006

___________ Before LOKEN, Chief Judge, BOWMAN and SMITH, Circuit Judges.

___________ SMITH, Circuit Judge.

Karla Robinson sued her auto insuran ce company, GEICO General Insurance Company, seeking payment of damages alle gedly caused by an underinsured motorist. Following a bench trial, the district court 1 found that Robinson failed to prove the accident caused her injury. On appeal, Robinson challenges the admissibility of GEICO's medical expert testimony and the district court's conclusions regarding causation. We hold that (1) the district c ourt did not abuse its discretion by allowing2 The acromion is the "lateral end of th e spine of the scapula which projects as a broad flattened process overh anging the glenoid fossa; it articulates with the clavicle and gives attachment to part of the de ltoid and of the trapezius muscles." S TEDMAN ' S M EDICAL D ICTIONARY17 (4th ed. 1976). "Acromions are classified by degree of curvature, from Type I through Type III. As curvature increas es, the space between the rotator cuff and [the] acr omion decreases. Dr. Lee desc ribed the Type II acromion as a congenital abnormality." Dist. Ct. Opinion at 5 n.4.
-2- the testimony of GEICO's medical expert; and (2) this testimony provided substantial evidence in support of the district c ourt's findings. Therefore, we affirm.

I. Background Robinson's vehicle was struck in the rear while in line to turn off an I-55 exit ramp. Joseph Groves's car crashed into the b ack of James Firestine's truck, which then bumped Robinson's vehicle. The relatively minor impact caused $650 in damages to Robinson's rear bumper. Robinson's vehicle did not strike the car in front of her. Firestine was not immediately aware that his vehicle had actually struck Robinson's bumper. Both Robinson and Firestine drove their respective vehicles from the accident

scene.

Several hours later, Robinson began to feel pain in her neck, right shoulder, and back. Two days later, Robi nson called her physician, Dr. Susan Reynolds, to schedule an appointment. Robinson saw Dr. Reynolds five days later. Dr. Reynolds referred Robinson to Dr. Thomas Lee, an orthopedi c specialist. A few days later, Robinson saw Dr. Lee, who diagnosed Robinson with a right rotator cuff contusion and lumbar sprain. X-rays of Robinson' s right shoulder revealed a pre-accident condition called a Type II acromion 2with a bone spur. Dr. Lee pr escribed medication and physical therapy. When this treatment failed to resolve Robinson's shoulder pain, Dr. Lee performed surgery, removing the bone spur a nd part of the clavicle to increase the space between the rotator cuff and the acromion bone. The surgery successfully relieved Robinson's pain.3 In 1992, several years before the accide nt, Robinson was injured at work. At trial, she testified that the injury wa s caused by 12-packs of beer falling on her. However, reports prepared at the time stat e that Robinson attributed the injury to excessive lifting and did not mention any falling objects. After the work injury, Robinson saw Dr. Bassman, who diagnosed her with a strained shoulder. In 1994, Dr. Bassman saw Robinson again, but at trial, Robinson denied that Dr. Bassman's records
-3- Robinson sued Groves and Firestine in st ate court and settled the claims for the $25,000 policy limit of the responsible party. Robinson then filed a claim for $75,000 under the $100,000 underinsured motorist ("UIM") coverage in her automobile insurance policy with GEICO. After Robins on rejected GEICO's offer to settle for $7,500, she pursued the instant case in district court.

At trial, testimony focused on the extent of Robinson's injury traceable to the I-55 automobile accident. Robinson testified that before the accident, she saw Groves's car approaching, anticipated a collision, and placed her right arm on the dashboard to brace herself. She claimed that her right arm was outstretched and that her right shoulder absorbed most of the force from the impact. Robinson relied upon the testimony of Dr. Lee to establish causation. Dr. Lee testified that rear impact while one's arm is locked could drive the rota tor cuff against the acromion, bruising the tendon and causing it to swell. Dr. Lee further testifie d that subsequent arm movements rub the swollen tendon against the bone, which increases the swelling further exacerbating the pain.

Dr. Lee opined that Robinson's shoulder injury could have occurred even if Robinson had not braced herself against the steering wheel because she wore a seatbelt. According to Lee, seatbelt rest raint increased the likelihood of impingement of the right shoulder because the right shoulder would accelerate as she pivoted forward from the impact. Dr. Lee testified that persons with Type II acromion are more prone to adhesive capsulitis and opi ned that Robinson probably had adhesive capsulitis when Dr. Bassman treated her in 1992. 3 Dr. Lee also testified thatreferred to her, insisting that Dr. Bassm an must have anothe r left-handed patient named Karla Robinson, who had a similar shoulder condition. In her answers to interrogatories in the lawsuit against Grove s and Firestine, Robi nson did not disclose the prior injury or her treatments by Dr . Bassman. In her an swers to GEICO's interrogatories, Robinson did not disclose th at she fell down a set of steps in October 2001 (approximately eleven months after the automobile accident) and received physical therapy on her right buttock and le g. As a result, the district court found Robinson lacked credibility.
-4- Robinson's "shoulder forward posture," notedin a 1994 medical report, can adversely affect shoulder impingement. With regardto Robinson's back injuries, Dr. Lee concluded that the accident aggravat ed her degenerative disk disease.

Dr. Simon Horenstein, a neurologist, tes tified on behalf of GEICO that the I-55 automobile accident did not injure R obinson's right shoulder. Dr. Horenstein explained that the shoulder area has a dens e supply of nerves, and consequently, one who suffers an injury to the shoulder joint is "usually symptomatic immediately." Because Robinson did not experience shoulde r pain until hours after the accident and did not seek medical attention for two days following the accident, Dr. Horenstein considered the onset of Robinson's symp toms more consistent with "muscle discomfort" as a result of "jostling or pos tural distortion" than a consequence of shoulder joint injury.

Dr. Horenstein contradicted Dr. Lee's th eory regarding the mechanism of injury. Dr. Horenstein stated that when the extended arm is stru ck from the palm, the arm acts like a battering ram into the glenoid fossa. Robinson did not have an injury to the glenoid fossa but was treated for pain in th e acromioclavicular joint ("AC joint"). Dr. Horenstein testified that inju ries to the AC joint are typi cally associated with a blow to the top or front of the shoulder. Howe ver, Robinson's shoulder did not strike any object as a result of the collision. In add ition, Dr. Horenstein cited a long-term study conducted by the Canadian government theori zing that a rear-impact collision causes one to be thrown backward. Under thattheory, Robinson's body would have initially4 In her initial visit with Dr . Lee, Robinson stated that her vehicle sustained a heavy impact from the rear and that her hands were on the steering wheel, with her right arm "sort of braced." Dr. Lee testif ied that he understood that Robinson's body came forward against the steering wheel.
-5- moved away from the dashboard, contrary to the theory offe red by her expert that her body thrust forward causing the extended ri ght arm to jar into her shoulder. Dr. Horenstein concluded that the condition in Robinson's AC joint was preexisting shoulder joint disease.

Following a bench trial, the district c ourt ruled in favor of GEICO, finding that Robinson failed to establish causation by a preponderance of the evidence. The court accepted Dr. Horenstein's testimony, findi ng that Robinson's preexisting shoulder condition likely necessitated the surgery rather than the automobile accident. The court discounted Dr. Lee's opi nion because Robinson did not inform Dr. Lee of the 1992 and 1994 episodes of shoulder pain and did not accurately represent the circumstances of the collision to him. 4With respect to R obinson's alleged back injuries, the district court found that Robi nson failed to identify any specific damages attributable to her back pain and could not establish that such damages would exceed the $25,000 settlement that she received from her state court action against Groves and Firestine. Robinson then filed the inst ant appeal to the j udgment of the district
court.

II. Discussion On appeal, Robinson argues that Dr. Ho renstein's testimony was inadmissible and that the district court's findings are contradicted by the record. For the following reasons, we affirm.-6- A. Medical Expert Testimony Robinson challenges the admissibility of Dr. Horenstein's testimony, which was critical to the outcome of the case. Specifically, Robinson contends that Dr. Horenstein, a neurologist, testified outside of his expertise and thus was not a "qualified" expert within the meaning of Rule 702 of the Federal Rules of Evidence. We disagree.

Rule 702 provides

If scientific, technical, or other speci alized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable pr inciples and methods, and (3) the witness has applied the principles and methods reliably to the facts of the
case.
Rule 702 was amended in 2000 in response to Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579 (1993) and its progeny. Fed. R. Evid. 702 advisory committee's note. Daubert charged trial judges with acting as gatekeepers to exclude unreliable expert testimony. Kuhmo Tire Co., Lt d. v. Carmichael , 526 U.S. 137, 147 (1999). Daubert provides a district court withthe discretion necessary to close the courtroom door to "junk science" and to admit reliable expert testimony that will aid the trier of fact. Amorgianos v. Nat'l R.R. Passenger Corp. , 303 F.3d 256, 267 (2d Cir. 2002). "A review of the caselaw after Daubert shows that the rejection of expert testimony is the exception rather th an the rule." Fed. R. Evid. 702 advisory committee's note. "Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Daubert , 509 U.S. at 595. We-7- review a district court's decision to admit expert testimony for an abuse of discretion. United States v. Cawthorn , 429 F.3d 793, 799 (8th Cir. 2005).

The district court did not abuse its di scretion by allowing the testimony of Dr. Horenstein. Rule 702 does not re quire a defense medical expe rt to be of the identical medical speciality as the plaintiff's expert. Instead, Rule 702 only requires that an expert possess "knowledge, skill, experience, training, or education" sufficient to "assist" the trier of fact, which is "satisfi ed where expert testimony advances the trier of fact's understanding to any degree." 29 W RIGHT & G OLD , F EDERAL P RACTICE AND P ROCEDURE : E VIDENCE § 6265 (1997). "Gaps in an expert witness's qualifications or knowledge generally go to the weight of th e witness's testimony, not its admissibility." Id .; see also Lauria v. Nat'l R.R. Passenger Corp. , 145 F.3d 593, 598 (3d Cir. 1998) (holding trial court abused its discreti on by excluding testimony simply because the trial court did not deem proposed expert to be the best qualified or because proposed expert did not have the specialization that the trial court consider ed most appropriate). However, Rule 702 does requirethat "the area of the witness's competence matches the subject matter of the witness's testimony." W RIGHT & G OLD , supra § 6265. Most courts have held that a physician withgeneral knowledge may testify regarding medical issues that a specialist mi ght treat in a clinical setting. Id

. Although not an orthopedist, Dr. Horenstein assisted the trier of fact with relevant testimony from his expertise inneurology. Dr. Horenstein's testimony pertained to the cause of the shoulder problems that made Robinson's surgery necessary. His testimony regarding the usual onset of shoulder pain was within his realm of expertise as a neurologist. As a physician, he could te stify regarding the likely type of injury one would sustain by the impact of the arm into the shoulder joint. Also, Dr. Horenstein's study of the s ubject qualified him to testify regarding the direction one would be forced in a rear-imp act collision. Therefore, the district court did not abuse its discretion by admitting his testimony.5 The condition in this shoulder is the result of Type II acromion and postural factors and is not the result of the automobile accident.
-8- B. Causation The district court found that the autom obile accident did not cause Robinson's shoulder condition or the need for the surg ery performed by Dr. Lee. Robinson argues that the record contradicts the district court's findings of fact regarding causation. Although a plausible alternativ e theory of the cause of Robinson's injury exists, substantial evidence supported the district c ourt's conclusion. Therefore, we affirm.

"In reviewing a district court's order entering judgment after a bench trial, we review the court's factual findings for clearerror and its legal conclusions de novo." Tadlock v. Powell , 291 F.3d 541, 546 (8th Cir. 2002) (citing Fed. R. Civ .P. 52(a)). Rule 52(a) requires that "due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. " "A factual finding supported by substantial evidence on the record is not clearly erroneous. A district court's choice between two permissible views of evidence cannot be clearly erroneous." Tadlock , 291 F.3d at 546 (citations omitted).

The district court found that Robinson failed to establish by a preponderance of the evidence that the condition in he r shoulder was caused by the accident. Dr. Horenstein's testimony provides substantial evidence in support of the district court's finding. Dr. Horenstein testified that the c ondition in the plaintiff's AC joint probably resulted from preexisting shoulder joint dis ease. Robinson's medical history of right shoulder pain, as well as her Type II ac romion and postural factors, support this conclusion. Robinson suffers from a similar condition in her left shoulder, which may require surgery in the future. 5 Although Dr. Lee offered a pl ausible theory of causation that differed from that of Dr. Horenstein, "[a] district court' s choice between two permissible views of evidence cannot be clearly erroneous." Tadlock , 291 F.3d at 546. Moreover, the district court concluded that Dr. Lee's opinion was entitled to less-9- weight because Robinson did not inform him of her prior episodes of similar shoulder pain and did not accurately represent the circumstances of the collision.

Furthermore, even if Robinson's shoulde r absorbed the imp act of the collision in the manner theorized by Dr. Lee, Dr. Horenstein viewed Robinson's injury as inconsistent with the injury typically expected. He explained that the shoulder contains a dense concentration of nerves a nd that the impact of the arm against these nerves would cause immediate pain, not th e delayed onset of pain experienced by Robinson. In short, Dr. Horenstein's testimony undercut plaintiff's theory of causation, and the district court credited the testim ony. We hold substantial evidence supported the district court's finding that Robinson failed to establish causation.

III. Conclusion The district court did not abuse its discretion by allowing Dr. Horenstein's testimony, and his testimony provided substantial evidence in support of the district court's conclusion. Therefore, we affirm.

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