1

The Honorable David R. Hansen stepped down as Chief Judge of the United

States Court of Appeals for the Eighth Circuit at the close of business on March 31,

2003. He has been succeeded by the Honorable James B. Loken.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 02-2627

___________

Donna Kudabeck, *

*

Plaintiff - Appellee, *

*

Steven Kudabeck, * Appeal from the United States

* District Court for the 

Plaintiff, * Western District of Arkansas.

*

v. *

*

The Kroger Co., *

*

Defendant - Appellant. *

___________

Submitted: January 16, 2003

Filed: August 4, 2003

___________

Before HANSEN,1

 Chief Judge, BRIGHT, and SMITH, Circuit Judges.

___________

BRIGHT, Circuit Judge.

Donna Kudabeck slipped and fell at a Kroger grocery store in Hot Springs,

Arkansas. Kudabeck sued Kroger, arguing that as a result of the accident she suffers
2

The Honorable Robert T. Dawson, United States District Judge for the

Western District of Arkansas.

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from advanced degenerative disc disease and osteoarthritis in her back. Kroger

agrees that Kudabeck has these conditions. However, Kroger argues that the fall did

not trigger Kudabeck's condition. Prior to trial, Kroger filed a motion in limine,

seeking to exclude the testimony of Kudabeck's chiropractor, Dr. Brian Reilly. The

district court2

 denied the motion. The case proceeded to trial, where a jury found in

favor of Kudabeck in the amount of $260,961.67. Kroger appeals, arguing that the

district court erred in admitting the expert testimony of Dr. Reilly and in instructing

the jury on the aggravation of preexisting conditions. We affirm.

I. BACKGROUND

We take the version of the evidence in the light most favorable to the jury's

verdict. Salitros v. Chrysler Corp., 306 F.3d 562, 566 (8th Cir. 2002). On April 13,

1995 around 11:00 p.m., Donna Kudabeck, age forty-four, and her daughter were

shopping at a Kroger store in Hot Springs, Arkansas. As Kudabeck and her daughter

walked down one of the aisles, Kudabeck's legs slipped out from under her and she

fell to the floor, landing on the base of her spine. After the fall, Kudabeck and her

daughter noticed that the floor had been recently mopped. They did not see "wet

floor" signs in the area. 

Kudabeck did not seek emergency medical treatment. However, a week later

she still experienced pain and discomfort. She visited with a chiropractor, Dr. Brian

Reilly. At the initial examination, Dr. Reilly took x-rays of Kudabeck, and found

problems in Kudabeck's lumbar and cervical vertebrae areas. Dr. Reilly did not see

any signs of arthritis. Based on his observation that Kudabeck did not have a fever

or redness in her back, Dr. Reilly ruled out infection as a source of Kudabeck's

discomfort. Dr. Reilly performed orthopedic tests to rule out other sources of pain
3

Dr. Reilly examined Kudabeck again in March 2002 to assess a permanent

injury rating. Dr. Reilly assessed Kudabeck with a ninety-six percent whole-person

permanent impairment rating. 

4

Dr. Tucker did not testify at trial, however, the parties submitted Dr. Tucker's

reports to the jury. The last date in Dr. Tucker's reports is November 1998. 

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such as the arms, legs, pelvis, and hips. Finally, Dr. Reilly used Kudabeck's medical

history generally to rule out genetic sources of her pain. Dr. Reilly attributed

Kudabeck's pain to the fall. 

After several months of treatment, Dr. Reilly did not note much improvement

in Kudabeck's condition. He referred Kudabeck to Dr. Paul Tucker, a neurologist.

In February 1996, Dr. Tucker examined Kudabeck and ordered a magnetic resonance

imaging test (MRI) and a series of x-rays. Dr. Tucker's examination revealed that

Kudabeck had "surprising weakness" in all of her major muscle groups. In reviewing

her MRI, Dr. Tucker noted possible disc herniations in the cervical spine area and

problems in the lumbar spine. Kudabeck's x-rays, taken a few weeks after the MRI,

indicated that she may have had a minimal compression fracture. 

Dr. Tucker referred Kudabeck back to Dr. Reilly for further treatment. Over

the next several months Kudabeck saw both Drs. Reilly and Tucker. Kudabeck

received a variety of treatments and medications, none of which relieved her pain.

Dr. Reilly continued to examine Kudabeck until May 1996.3

 Dr. Tucker continued

to treat Kudabeck until at least November 1998.4

Kudabeck's condition continued to deteriorate. In July 1996, Dr. Tucker's

notes indicated that Kudabeck was "now severely handicapped and cannot do much
5

Kudabeck's husband, Steven Kudabeck, sued Kroger for loss of consortium.

The jury found against Steven. The parties have not appealed that finding. 

6

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

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of anything." (Trl. Ex. 11.) As stated previously, Kudabeck sued Kroger, arguing

that the fall resulted in a permanent injury.5

 

After suing Kroger, Kudabeck saw Dr. Steve Cathey, a neurosurgeon,

regarding her condition. At that time, Kudabeck complained of severe pain in her

neck, middle back, and lower back. Dr. Cathey noted that Kudabeck's pain had been

present for a number of years and that she had received a variety of medications,

physical therapy, and chiropractic treatment, but none afforded much relief. In his

videotaped deposition played at trial, Dr. Cathey opined that Kudabeck suffered from

advanced degenerative disc disease and that he believed that she had arthritis in the

spine. Dr. Cathey explained that in his opinion Kudabeck's fall aggravated preexisting conditions in her neck, middle back and lower back, and "set into motion

[Kudabeck's] symptomatology." (J.A. at 55.) 

Prior to trial, Kroger filed a motion in limine, seeking to exclude the testimony

of Dr. Reilly. The district court did not hold a Daubert6

 hearing to consider argument

on the issue. Instead, in a written order based on the record presented to it, the court

held Dr. Reilly's testimony on causation was admissible as long as Kudabeck

established that his opinion was the product of reliable principles and methods

properly applied to Kudabeck's case. 

At trial, Kudabeck presented the videotaped deposition of Dr. Cathey, and

provided the jury with Kudabeck's medical records from Dr. Tucker. Kudabeck

called Dr. Reilly as an expert witness. Kroger once again objected to Dr. Reilly's

testimony, and the district court allowed Dr. Reilly to testify with limitations.
7

The court provided the following instruction from the Arkansas Model Jury

Instructions:

In this regard you should consider the full extent of any injury sustained,

even though the degree of injury is found by you to have proximately

resulted from the aggravation of a condition that already existed and that

predisposed Donna Kudabeck to injury to a greater extent than another

person.

8

The first interrogatory presented to the jury asked "[d]o you find from a

preponderance of the evidence that there was negligence on the part of the defendant

which was a proximate cause of any damages?" An earlier jury instruction defined

"proximate cause" as:

The law frequently uses the expression "proximate cause," with

which you may not be familiar. When I use the expression "proximate

cause," I mean a cause which, in a natural and continuous sequence,

produces damage and without which the damage would not have

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Kudabeck's main theory of the case was that the fall triggered Kudabeck's pain,

suffering and disability. 

Kroger did not call any medical experts to dispute Kudabeck's theory of the

case. However, Kroger's position was that it did not act negligently. Kroger also

argued it was entitled to a jury instruction relating to the aggravation of preexisting

conditions. The court provided Arkansas Model Instruction 2203,7

 but declined to

provide the optional language: "However, you may not award her damages for any

pain, mental anguish or disability which she would have suffered even though the

accident had not occurred." The court declined to provide the instruction based on

Kroger's failure to present evidence to support the instruction.

After hearing one day of testimony, the jury found that Kroger acted

negligently, which proximately caused damage to Kudabeck.8

 The jury awarded
occurred."

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Kudabeck $260,961.67 in damages. The district court reduced the award by the

amount Kroger had already paid in Kudabeck's medical expenses, resulting in a final

judgment of $255,382,67. Kroger timely appeals. 

II. DISCUSSION

We review for the abuse of discretion a district court's decision to admit or

exclude scientific evidence. General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997);

In re Air Crash at Little Rock Arkansas, on June 1, 1999, 291 F.3d 503, 509 (8th Cir.

2002). A trial court has broad discretion in assessing the relevance and reliability of

expert testimony. Id. at 514.

A. Expert Testimony

On appeal, Kroger argues that the district court abused its discretion in

permitting Dr. Reilly to testify because his testimony about the causation of

Kudabeck's injuries was unreliable. 

Federal Rule of Evidence 702 governs the admissibility of expert opinion

testimony. The rule consists of three distinct but related requirements: (1) the

evidence must be based on scientific, technical or other specialized knowledge that

is useful to the finder of fact in deciding the ultimate issue of fact; (2) the witness

must have sufficient expertise to assist the trier of fact; and (3) the evidence must be

reliable or trustworthy. Lauzon v. Senco Prod., Inc., 270 F.3d 681, 686 (8th Cir.

2001). The basis for the third requirement lies in the recent amendment to Rule 702,

which added the following language: "(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."
9

Arkansas law provides:

(6)(A) "Practice of chiropractic" means the engagement in the

diagnosis and analysis of any interference with normal nerve

transmission and expression, and the procedure preparatory to and

complementary to the correction thereof by an adjustment of the

articulations of the vertebral column, its immediate articulations,

including spinal adjustments, spinal manipulations, and spinal

mobilizations, such as any type of pressure, force, thrust, or passive

movement, singular or plural, applied to the spinal vertebrae or their

adjacent articulations by hand or mechanical device or by other

incidental adjustments, for the restoration and maintenance of health.

The practice of chiropractic includes therapy, the normal regimen, and

rehabilitation of the patient for the purpose of removing any injury,

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Fed. R. Evid. 702. In Daubert, the Supreme Court charged trial judges with the

responsibility of acting as gatekeepers to "ensure that any and all scientific testimony

or evidence admitted is not only relevant, but reliable." Daubert, 509 U.S. at 589.

First, the trial court must make a "preliminary assessment of whether the reasoning

or methodology underlying the testimony is scientifically valid and of whether that

reasoning or methodology properly can be applied to the facts in issue." Id. at 592-

93. The Court cautioned that the trial court must focus "on [the] principles and

methodology, not on the conclusions that they generate." Id. at 595. Second, the

court must ensure that the proposed expert testimony is relevant and will serve to aid

the trier of fact. Id. at 592. Expert testimony assists the trier of fact when it provides

information beyond the common knowledge of the trier of fact. Id. at 591. The

Court, in Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), clarified that the

district court's gatekeeper function applies to all expert testimony, not just testimony

based in science. Id. at 147.

Kroger does not contest that Dr. Reilly possesses the qualifications to testify

as an expert under Rule 702. The district court acknowledged that Dr. Reilly

qualifies as an expert in chiropractic treatment.9

 Kroger also does not contest that Dr.
deformity, or abnormality of human beings without the use of drugs or

surgery.

(B) The practice of chiropractic, as authorized under the

provisions of this chapter, shall not include the performance of the

duties of a midwife or obstetrician, therapy by the use of ionizing

radiation, incisive surgery, prescribing for or administering to any

person any drug to be taken internally, or puncturing the skin for the

purpose of introducing any substance into the body. Nothing herein shall

prevent puncturing the skin for routine blood analysis, including red

blood count, white blood count, differential and serology, in the practice

of chiropractic for diagnostic purposes.

Ark. Code Ann. § 17-81-102(6) (Michie 2002) (Arkansas Chiropractic Practices Act).

-8-

Reilly's testimony would assist the jury. Thus, the issue of contention between the

parties centers on whether Dr. Reilly's methodology is reliable. 

Kroger argues Dr. Reilly's testimony is inadmissible because he failed to

perform a differential diagnosis to exclude other contributing factors to Kudabeck's

degenerative disc disease, instead he relied on Kudabeck's word in determining

causation. Kroger also argues that Dr. Reilly's testimony is unreliable because he

failed to cite published studies on causation to support his conclusion.

First, Kroger argues Dr. Reilly's testimony as to causation is unreliable because

he failed to perform a differential diagnosis to exclude other potential sources of

degenerative disc disease. "In performing a differential diagnosis, a physician begins

by 'ruling in' all scientifically plausible causes of the plaintiff's injury. The physician

then 'rules out' the least plausible causes of injury until the most likely cause

remains." Glastetter v. Novartis Pharm. Corp., 252 F.3d 986, 989 (8th Cir. 2001).

We have previously held that "a medical opinion about causation, based upon a

proper differential diagnosis, is sufficiently reliable to satisfy Daubert." Turner v.

Iowa Fire Equip. Co., 229 F.3d 1202, 1208 (8th Cir. 2000). A district court may
-9-

exercise its gatekeeping function to exclude only those diagnoses that are

scientifically invalid. Glastetter, 252 F.3d at 989.

At trial, Dr. Reilly testified that something other than a fall could cause

degenerative disc disease. However, Dr. Reilly indicated that he ruled out alternative

sources, such as infection, since at the time of Kudabeck's first examination she did

not have a fever, nor did she have redness in her back. Dr. Reilly also ruled out

arthritis as a potential source because Kudabeck's x-rays, at the first visit, did not

show any signs of arthritis in her back. After taking a medical history, Dr. Reilly

initially ruled out genetic etiology. Based on the foregoing information, Dr. Reilly

concluded it was unnecessary to run any additional tests to confirm his findings. Dr.

Reilly also testified that he followed normal procedures for chiropractors in

evaluating and treating Kudabeck. Thus, we reject Kroger's claims that Dr. Reilly

failed to perform a differential diagnosis, according the practice of a chiropractor. In

essence, Kroger appears to argue that Dr. Reilly did not perform a thorough

diagnosis. However, Dr. Reilly performed a sufficient differential diagnosis such that

he could treat Kudabeck. 

Kroger argues that this case is similar to Turner where the district court

excluded the testimony of a treating physician based on his failure to perform a

proper differential diagnosis and we affirmed. In Turner, the medical doctor

acknowledged that he made no attempt to consider all the possible causes of

respiratory problems the plaintiff developed after contact with chemicals from a fire

extinguisher. 229 F.3d at 1208. Instead, the doctor came to his causation conclusion

as an afterthought, only after being informed that he had misidentified certain

chemicals as ingredients in the fire extinguisher. Id. at 1208. This court agreed that

the doctor had not "ruled in" a variety of other causes of the plaintiff's respiratory

illness. Id. at 1209. 
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The present case is different from Turner. First, unlike in Turner, Dr. Reilly's

opinion on the condition of Kudabeck's spine did not change over time. In addition,

unlike in Turner, Kroger has failed to point out any fact that Dr. Reilly overlooked.

Kroger has not performed any independent testing to demonstrate that Dr. Reilly

missed an essential fact in his methodology. Simply because Dr. Reilly did not

conduct his examination and treatment of Kudabeck in the manner Kroger preferred,

does not render Dr. Reilly's testimony unreliable. See Lauzon, 270 F.3d at 693-94

(noting reliable causation testimony need not rule out every possible alternative

cause); Westberry v. Gislaved Gummi AB, 178 F.3d 257, 265 (4th Cir. 1999) (same);

Heller v. Shaw Indus., Inc., 167 F.3d 146, 156 (3d Cir. 1999) (same). Finally,

nothing in Rule 702, Daubert, or its progeny requires "that an expert resolve an

ultimate issue of fact to a scientific absolute in order to be admissible." Bonner v. ISP

Tech., Inc., 259 F.3d 924, 929 (8th Cir. 2001). Kroger's attacks regarding the

completeness of Dr. Reilly's methodology go to the weight and not the admissibility

of his testimony. Lauzon, 270 F. 3d at 694 ("After discounting obvious alternatives

through scientific testing, such as the manufacturing defect, Kelsey need only be able

to explain why other conceivable causes are excludable."). 

Kroger maintains that Dr. Reilly relied totally on Kudabeck's word about her

medical history in formulating his causation testimony. The trial court record reveals

that Dr. Reilly based his opinion on more than simply crediting Kudabeck's

statements. As stated previously, Dr. Reilly performed chiropractic tests along with

physical observations in diagnosing Kudabeck. When he, in his professional opinion,

did not see improvement in Kudabeck's condition as he anticipated, he referred her

to Dr. Tucker to rule out other possible reasons for her pain and discomfort. Dr.

Tucker's report did not refute Dr. Reilly's general conclusions. In fact, Dr. Tucker

referred Kudabeck back to Dr. Reilly for further treatment. Dr. Reilly explained that

he attributed Kudabeck's present condition to her fall by comparing her 1996 and
10Dr. Reilly explained to the jury:

[W]ith five years of no care, her spine has gone over to that side. It is

a well-documented scientific fact that degeneration advances after a

trauma. It is scarring, it [is] a normal reaction for most bodies. You can

really see this pressure over here and she can't even stand straight

anymore.

(Tr. at 179-80.)

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2002 x-rays.10 Thus, Dr. Reilly relied on more than Kudabeck's word in forming his

opinion. 

Kroger next argues that Dr. Reilly did not cite to or use any study that

supported his position that a fall could trigger degenerative disc disease. However,

there is no requirement "that a medical expert must always cite published studies on

general causation in order to reliably conclude that a particular object caused a

particular illness." Heller, 167 F.3d at 155. Instead, "experience with hundreds of

patients, discussions with peers, attendance at conferences and seminars . . . are tools

of the trade, and should suffice for the making of a differential diagnosis even in

those cases in which peer-reviewed studies do not exist to confirm the diagnosis of

the physician." Heller, 167 F.3d at 155. Heller also explained "only where a

defendant points to a plausible alternative cause and the doctor offers no explanation

for why he or she has concluded that was not the sole cause, that doctor's

methodology is unreliable." Id. at 156 (emphasis in original) (internal quotations and

citations omitted); see also Turner, 229 F.3d at 1208-09 (following Heller in not

requiring medical expert to cite published studies on general causation to establish

reliability). As Daubert has indicated, publication is not a prerequisite for

admissibility. 509 U.S. at 593. 

In sum, all of Kroger's arguments on appeal are jury questions. Each of the

issues was properly presented to the jury. Kroger had the opportunity to cross-
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examine Dr. Reilly on all areas in dispute, and Kroger did so. "Vigorous crossexamination, 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 596. At trial, Kroger had the opportunity to fully

attack Dr. Reilly's credentials, which it did. 

Kroger has not demonstrated that Dr. Reilly exceeded the boundaries of the

general practice and methodology of chiropractors. In addition, the district court

properly limited Dr. Reilly's testimony to matters that would be helpful to the jury and

are within Dr. Reilly's area of expertise. Dr. Reilly adequately explained to the jury

his treatment of Kudabeck and his belief, based on his review of Kudabeck's x-rays,

that her fall contributed to her present condition. The court did not allow Dr. Reilly

to base his conclusions on the reports of other doctors, including Dr. Tucker. The

district court also prohibited Dr. Reilly from testifying regarding his opinion and

reading of Kudabeck's MRI based on his lack of training in doing so. The district

court sufficiently limited Dr. Reilly to his treatment of Kudabeck and the conclusions

he drew from his treatment and expertise. Dr. Cathey, a neurosurgeon, and Dr. Reilly,

a chiropractor, did not disagree that the fall caused or could have caused Kudabeck's

pain and suffering. Dr. Cathey based his opinion on the aggravation of a preexisting

condition, and Dr. Reilly concluded that Kudabeck's fall produced the degenerative

disc disease. At least from the fall to the present time, both experts' testimony

supported a substantial award of damages even though they disagreed on the medical

causation. 

In this case, the district court did not abuse its discretion in admitting Dr.

Reilly's opinion as reliable. Dr. Reilly based his opinion on his education, training,

and proper chiropractic methodology and reasoning in treating Kudabeck and forming

an expert opinion. He relied on accepted chiropractic tests and took a thorough

patient history. Dr. Reilly did not base his conclusions solely on Kudabeck's

statements; rather he used his many years of experience and training to treat
11The fact that experts in other fields might also be able to form opinions

regarding the cause of an injury and would base those opinions on factors other than

those used by Dr. Reilly does not disqualify Dr. Reilly from offering testimony that

would be helpful to the jury within his field of expertise. See Smith v. BMW N.A.,

Inc., 308 F.3d 913, 919 (8th Cir. 2002) (holding forensic pathologist could testify that

a properly deployed air bag would have prevented or reduced plaintiff's injuries, even

though a biomechanical expert could also testify on the issue).

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Kudabeck's condition and provide treatment. Dr. Reilly did not use any experimental

techniques and did not deviate in any way from his normal practice of conducting

chiropractic examinations.

Even if we were to conclude that the evidence should have been excluded, Dr.

Reilly's testimony, in all probability, did not affect the amount of the jury award. See

Clark v. Heidrick, 150 F.3d 912, 915 (8th Cir. 1998) (standard for harmless error).

The record shows a vigorous and effective cross-examination of Dr. Reilly and a

rejection of much of the damages sought by the plaintiff in closing arguments,

including the rejection of damages for loss of consortium.11 In addition, Kroger

conceded at oral argument that the jury could have found for Kudabeck based on Dr.

Cathey's testimony of causation by aggravation of preexisting condition. The jury

could have also based its conclusion, in part, on the medical records from Dr. Tucker.

B. Jury Instruction

Kroger argues that the district court erred in not providing the jury with

optional language from the Arkansas Model Jury Instruction on aggravation of preexisting conditions. We review a court's jury instructions for an abuse of discretion.

See Bennett v. Hidden Valley Golf & Ski, Inc., 318 F.3d 868, 873 (8th Cir. 2003).

The district court has broad discretion to choose the form and language of the jury

instructions. Id. In a diversity case, such as this one, Arkansas law applies to the

substance of the instructions, while federal law "governs our review of the discretion
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exercised in refusing or admitting such instructions." Id. (quoting Horstmyer v. Black

& Decker, (U.S.), Inc., 151 F.3d 765, 771 (8th Cir. 1998)).

The district court provided the following jury instruction:

In this regard you should consider the full extent of any injury sustained,

even though the degree of injury is found by you to have proximately

resulted from the aggravation of a condition that already existed and that

predisposed Donna Kudabeck to injury to a greater extent than another

person.

(J.A. at 41.) Arkansas Model Jury Instruction 2203 included the following optional

language:

However, you may not award her damages for any pain, mental anguish

or disability which she would have suffered even though the accident

had not occurred.

The note to the instruction explains: "Do not use the [optional] final sentence unless

there is evidence that the claimant would have suffered pain, disability, mental

anguish, etc., even though the accident had not occurred." Id.

In order to justify providing the optional language to the jury, Kroger had to

demonstrate that Kudabeck would have experienced pain and suffering without the

fall and that the fall produced no lasting effects. The evidence from all sources

indicated that regardless of any preexisting condition, Kudabeck was in extremely

good health and suffered no symptomatology prior to the fall. Kroger has failed to

meet its burden. Kroger asserts that Dr. Cathey's general statement in his deposition

testimony admitted at trial that "it's possible that the fall at least aggravated these

preexisting changes and set into motion her symptomatology," sufficiently meets its

burden. However, Dr. Cathey also responded:
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It's hard to answer that question [whether without the fall

Kudabeck would have become symptomatic]. Many times these patients

remain asymptomatic. Other times some other event, maybe not as

dramatic as a fall in a Kroger store - maybe something as simple as

getting out of a car or wrenching your back on an icy sidewalk can set

these in motion.

So to say that she would have never become symptomatic without

a fall, I wouldn't go so far as to say that; but at least according to her

history, she was not symptomatic prior to the fall.

(J.A. at 55.) Kroger urges this court to read Dr. Cathey's double negative as support

for its position. We do not do so. A large body of other evidence taken with the

above opinion of Dr. Cathey and including Dr. Reilly's opinion supports the

conclusion that the fall resulted in Kudabeck's pain and suffering. Kroger did not call

any additional witnesses or present any contrary evidence to support its argument that

the district court should have provided the jury with the optional language. While

Kroger notes "Dr. Cathey's testimony is not as articulate as one may hope," Kroger

bears the burden of providing substantial evidence for the instruction. 

The district court did not abuse its discretion in declining to provide the jury

the optional language since Kroger failed to produce evidence to support the

instruction. See Barker v. Clark, 33 S.W.3d 476, 480 (Ark. 2000) (holding that "[a]

party is entitled to a jury instruction when it is a correct statement of the law and there

is some basis in the evidence to support the giving of the instruction"). 

Finally, we must observe that the issue of continued pain and suffering

resulting from a fall, such as the one in this case, can support a substantial award

whether based on medical causation of degenerative disc disease from the fall or

aggravation of a preexisting condition. Kudabeck suffers from pain attributable to

the fall in either situation. 
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III. CONCLUSION

In the special circumstances and nature of Kudabeck's symptoms, pain, and

suffering following the fall, and looking at the record as a whole, we find no basis to

reverse the district court. Accordingly, we affirm.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.