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The HONORABLE RUSSELL G. CLARK, Senior Judge of the United States

District Court for the Western Division of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 98-2740

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Ross W. Graham; Julie Graham, *

*

Plaintiffs - Appellants, *

*

v. * Appeal from the United States

* District Court for the Western

Ozark Mountain Sightseeing, Inc.; * District of Missouri.

Joe D. Ainsworth; Rudolph E. Smutny, *

*

Defendants - Appellees. *

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Submitted: January 15, 1999

Filed: May 28, 1999

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Before LOKEN, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

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LOKEN, Circuit Judge.

Juanita Graham was injured in an accident involving an Ozark Mountain

Sightseeing bus. She later suffered a heart attack and died. Her surviving husband and

daughter, Oklahoma residents Ross and Julie Graham, brought this diversity wrongful

death action against Ozark Mountain and the bus drivers. The district court1

 granted
2Under Oklahoma law, if a doctor believes that death was caused by an injury,

he should certify it to the medical examiner and should not sign the death certificate.

Dr. Knapik signed Juanita Graham’s death certificate and did not certify her death to

the medical examiner. 

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summary judgment for defendants because the Grahams lacked evidence that the bus

accident directly caused Juanita’s death. The Grahams appeal, arguing their medical

experts’ testimony created a genuine fact dispute regarding causation. We affirm.

On June 8, 1995, Juanita Graham was walking through a parking lot in Branson,

Missouri, when an empty Ozark Mountain bus rolled down a hill and struck several

parked cars, knocking one of the cars into her. She suffered serious injuries, including

brain damage. On May 21, 1996, Graham had a heart attack and died. Graham had

multiple risks for heart failure, including diabetes, hypertension, three pre-accident

heart attacks, and a smoking habit. One of her treating physicians, Dr. Joseph Knapik,

completed Juanita’s Oklahoma death certificate, listing cardiac arrest as the cause of

death, noting congestive heart failure and diabetes mellitus as contributing causes, and

reciting that more than a year elapsed between the onset of the conditions causing death

and Juanita’s death.2

The Grahams commenced this wrongful death action under Mo. Rev. Stat.

§ 537.080, contending the June 1995 accident impaired Juanita’s mental capacity and

ability to manage her preexisting conditions, which in turn caused her heart attack and

death. The district court granted defendants’ motion for summary judgment,

concluding the Grahams’ evidence could not meet the Missouri causation standard.

This appeal followed. We review the grant of summary judgment de novo, viewing the

evidence most favorably to the non-moving party and affirming if there is no genuine

fact dispute and the moving party is entitled to judgment as a matter of law. See Chism

v. W.R. Grace & Co., 158 F.3d 988, 990 (8th Cir. 1998). We review the district
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court’s interpretation of Missouri law de novo. See Bryan v. Norfolk & W. Ry., 154

F.3d 899, 901 (8th Cir. 1998), cert. dismissed, 119 S. Ct. 921 (1999). 

To recover for wrongful death under Missouri law, the Grahams must prove that

defendants’ negligence was a direct cause of Juanita’s death. See Morton v.

Mutchnick, 904 S.W.2d 14, 16 (Mo. App. 1995). This requires, at a minimum, a

showing of “but-for” causation, that is, causation in fact. See Callahan v. Cardinal

Glennon Hosp., 863 S.W.2d 852, 862-63 (Mo. banc 1993). Because the Grahams rely

on medical experts, the doctors must testify to a reasonable medical certainty that but

for defendants’ negligence Juanita’s death would not have occurred. Expert testimony

that defendants “probably” or “likely” caused the harm is insufficient unless there is

additional evidence of causation or it is clear from the context that the doctor intended

to express a definite opinion. See Kiger v. Terminal R.R. Ass’n, 311 S.W.2d 5, 14

(Mo. 1958); Pfeffer v. Kerr, 693 S.W.2d 296, 300-03 (Mo. App. 1985); Bertram v.

Wunning, 385 S.W.2d 803, 807 (Mo. App. 1965).

The Grahams rely on the deposition testimony of Juanita’s two treating

physicians to establish the causal link between the June 1995 accident and her fatal

heart attack. Dr. Knapik testified that Graham’s head injury caused a “failure to

thrive,” in that she would not thereafter assist in her therapy and developed behavioral

problems which adversely affected her condition. However, when asked if he could

testify to a reasonable degree of medical certainty that the “failure to thrive” caused

Graham’s death, he responded: “I wish I had a crystal ball and could answer that

question. I will tell you my personal professional opinion. I think that if she wouldn’t

have sustained the injury that she sustained, she’d probably be alive today. . . . I don’t

think the failure to thrive and the heart attack are something we can correlate.”

Dr. David Shepherd, another treating physician, was deposed as an expert for

the Grahams. When asked if he could testify to a reasonable medical certainty that but

for the accident, Juanita would have survived, Dr. Shepherd answered: “My opinion
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is that the accident and her affective disorder adversely affected her ability to comply

with medical recommendations, with diet, with medication, with appropriate

adjustments in her lifestyle and, therefore, had an impact.” If she had had full use of

her mental faculties, Dr. Shepherd thought Juanita would have complied better with

medical regimen, which would have delayed her death. However, later in the

deposition, he hedged: 

I don’t know whether Mrs. Graham would still be alive today. She had

multiple [heart attack] risk factors. But I do think that her injury

adversely affected her outcome because she was not able to comply with

medical management. But I don’t know whether she still would have

been alive today or not. I don’t think that’s predictable.

Thus, neither doctor was willing to testify that Juanita’s accident was a direct cause of

her death. Dr. Knapik said she would “probably” be alive if not for the accident, and

Dr. Shepherd opined that the accident “had an impact.” However, neither physician

would directly relate the bus accident to Juanita’s death, and neither could, with any

degree of medical certainty, sufficiently correlate the effects of the accident with what

did directly cause her death, a fourth heart attack. We agree with the district court this

medical evidence is insufficient to satisfy Missouri’s causation standard. As the

Grahams submitted no other causation evidence, the court properly granted defendants’

motion for summary judgment dismissing the wrongful death claim. See Celotex Corp.

v. Catrett, 477 U.S. 317, 322-23 (1986).

The Grahams also argue the district court abused its discretion in denying their

post-judgment motion to reinstate a claim for damages for Juanita’s personal injuries.

See Roudybush v. Zabel, 813 F.2d 173, 178 (8th Cir. 1987) (standard of review).

Under Missouri law, an action for personal injuries survives the death of the victim but

may only be brought by the personal representative of the victim’s estate. See Mo.

Rev. Stat. § 537.020; State v. Steelman, 897 S.W.2d 202, 203 (Mo. App. 1995). Here,

it is debatable whether the complaint even alleged a separate claim for Juanita’s injuries
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because the suit was brought only in Ross Graham’s individual capacity and not as

representative of her estate, it was brought under the Missouri wrongful death statute,

and it asked for all the damages authorized under that statute. Moreover, Ross Graham

was appointed personal representative in Oklahoma. To bring an action in Missouri,

a foreign personal representative must first register with a Missouri probate court, and

Ross Graham did not do so. See Mo. Rev. Stat. §§ 473.676-.677; In re Estate of

Widmeyer, 741 S.W.2d 758, 760 (Mo. App. 1987). In these circumstances, the district

court did not abuse its discretion in denying the post-judgment motion.

The judgment of the district court is affirmed.

A true copy.

Attest:

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