Opinion
Civ. No. 98-2861, SECTION "N".
February 10, 2000.
ORDER AND REASONS
Before the Court are (1) Defendants E. L. Farmer Company and Liberty Mutual Insurance Company's Motion to Dismiss or, Alternatively, for Summary Judgment; and (2) Defendants E. L. Farmer Company and Liberty Mutual Insurance Company's In Limine Motion to Exclude Evidence. For the following reasons, Defendants' Motion to Dismiss is DENIED and Defendants' Motion to Exclude is GRANTED IN PART and DENIED IN PART.
A. BACKGROUND
This case arises out a July 3, 1998 auto accident on Louisiana Highway 1 in LaFourche Parish. Plaintiff David P. Thomas ("David") claims that he sustained injuries as a result of the accident, including two ruptured and/or bulging discs in his neck and an aggravation of his preexisting multiple sclerosis. On September 30, 1998, David and his wife, Tonya Lorio Thomas ("Tonya"), filed suit in this Court against the driver of the other vehicle, Horace D. Poole; Poole's employer, E. L. Farmer Company ("Farmer"); and Farmer's insurer, Liberty Mutual Insurance Company ("Liberty"). David asserted a state-law negligence claim, Tonya asserted a loss of consortium claim, and both invoked this Court's diversity jurisdiction.
Farmer and Liberty have filed two motions. First, they move to dismiss Tonya's loss of consortium claim on the basis that it does not satisfy the requisite jurisdictional amount of $75,000. Second, they move to exclude from trial any general reference to David's pre-existing multiple sclerosis ("MS") and any specific testimony suggesting a relationship between David's traumatic injuries and his MS.
The Complaint against Poole was dismissed for failure to prosecute on June 10, 1999.
B. LAW AND ANALYSIS 1. MOTION TO DISMISS TONYA LORIO THOMAS' LOSS OF CONSORTIUM CLAIM
Tonya Lorio Thomas was not injured in the July 3, 1998 accident, and her claim for damages rests solely on a loss of consortium theory. As set forth in paragraph 13 of the Complaint,
David P. Thomas and Tonya Lorio Thomas were married at the time of the accident. The injuries from the accident have caused pain and suffering by David P. Thomas which has disrupted the normal marital relationship between Tonya Lorio Thomas and David P. Thomas. Thus, Tonya Lorio Thomas is entitled to loss of consortium damages.
Citing a number of Louisiana cases in which plaintiffs have received loss of consortium damage awards ranging from $2000 to $25,000, defendants Farmer and Liberty argue that Tonya's loss of consortium claim must be dismissed for failure to meet the $75,000 amount in controversy requirement for diversity jurisdiction. See 28 U.S.C. § 1332 (a). Strangely, Farmer and Liberty do not cite any federal case law in support of their position. Even more strangely, Tonya also fails to cite any federal case law, instead stating in her opposition memorandum that she "recognizes the string of Jurisprudence which holds that loss of consortium claims cannot be entertained by Federal District Courts under the doctrine of pendent jurisdiction". This is a strange position, indeed, as recent Fifth Circuit jurisprudence actually holds quite the opposite.
Page 2. Tonya opposes dismissal on the grounds that a jury could return a verdict in excess of $75,000. In the alternative, Tonya requests that the Court remand her claim to her state suit filed on January 31, 2000.
Prior to 1990, in diversity cases involving multiple plaintiffs, the Supreme Court fashioned what has been described as the "complete amount in controversy" rule. See Lindsay v. Kvortek, 865 F. Supp. 264, 271 (W.D. Pa. 1994). Under this rule, federal district courts were prohibited from exercising pendent jurisdiction over a claim by a party whose loss did not meet the jurisdictional minimum; in other words, in order to avail themselves of federal diversity jurisdiction, each plaintiff in a multiple plaintiff suit was individually required to satisfy the jurisdictional amount in controversy requirement. See Stromberg Metal Works, Inc. v. Press Mechanical, Inc., 77 F.3d 928, 930-31 (7th Cir. 1996) (describing the history of this doctrine from Clark v. Paul Gray, Inc., 306 U.S. 583, 59 S.Ct. 744, 83 L.Ed. 1001 (1939), through Zahn v. International Paper Co., 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973)).
In 1990, Congress enacted 28 U.S.C. § 1367, which provides that, "in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." "Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties", but, in "any civil action of which the district courts have original jurisdiction founded solely on section 1332 of this title, the district courts shall not have supplemental jurisdiction . . . over claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules, when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of section 1332." 28 U.S.C. § 1367 (a)-(b). Almost immediately after § 1367 was enacted, a debate arose as to whether it overruled the "complete amount in controversy" rule. See, e.g., Griffin v. Dana Point Condominium Ass'n, 768 F. Supp. 1299 (N.D. Ill. 1991) (§ 1367 does not change the proposition that each plaintiff's claim must meet the jurisdictional requirements of § 1332); Garza v. National American Ins. Co., 807 F. Supp. 1256 (M.D. La. 1992) ("§ 1367 provides for the exercise of supplemental jurisdiction over the claims of parties which do not independently meet the amount in controversy requirement").
Although the Supreme Court has not spoken to the issue, the Fifth Circuit has settled this debate for courts within its ambit: in In re Abbott Laboratories, 51 F.3d 524 (1995), the Fifth Circuit held that § 1367 overruled Zahn v. International Paper Co., 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973), and permits a district court to exercise supplemental jurisdiction over members of a class, "although they did not meet the amount-in-controversy requirement, as did the class representatives." Abbott, 51 F.3d at 529. District courts within the Fifth Circuit have extended the Abbott holding to non-class-action, multiple plaintiff claims. See Comment, Judicial Interpretation of the Effect of the Supplemental Jurisdiction Statute on the Complete Amount in Controversy Rule: A Case For Plain Meaning Statutory Construction, 46 EMORY L.J. 435 n. 209 (1997) (collecting cases in which district courts within the Fifth Circuit have applied the Abbott holding in both class-action and non-class-action cases); see also Stromberg Metal Works, 77 F.3d at 930-32 (approving Abbott and explaining that its holding extends beyond the class action context). In fact, courts within this district have exercised supplemental jurisdiction over loss of consortium claims substantially similar to that asserted by Tonya Lorio Thomas. See, e.g., Elloie v. American Home Prod. Corp., 1996 WL 84459 at *3 (E.D. La. 1996) (Vance, J.) (where the court had diversity jurisdiction over Mrs. Elloie's tort claims, the court, in light of Abbott, found "that Mr. Elloie's derivative claim for loss of consortium satisfies the test set out under 28 U.S.C. § 1367"); accord Booty v. Shoney's. Inc., 872 F. Supp. 1524, 1527 (E.D. La. 1995) (McNamara, J.) (where the court had diversity jurisdiction over Mrs. Mary Booty's slip-and-fall claims, the court also had supplemental jurisdiction over Mr. Wilty Booty's derivative and closely-related loss of consortium claim).
Although Tonya's loss of consortium claim does not satisfy the amount in controversy requirement for diversity jurisdiction, it nonetheless "form[s] part of the same case or controversy" as her husband's negligence claim, and the Court may exercise supplemental jurisdiction over it. Defendants' motion to dismiss is denied, and Tonya Lorio Thomas is ordered to amend her complaint to add § 1367 as a jurisdictional basis.
Although Tonya did not address the issue of supplemental jurisdiction correctly, it is clear from her opposition that she wishes to avail herself of a federal forum. Thus, the Court will provide Tonya with an opportunity to correct the defect in her pleading. See Lindsay, 865 F. Supp. at 270-71 (although "plaintiffs do not address the issue of supplemental jurisdiction . . . [t]he Court . . . is not free to ignore the issue and must raise it sua sponte"); Booty, 872 F. Supp. at 1529 (defendant's failure to allege supplemental jurisdiction in its notice of removal "is not fatal and can be cured through amendment").
2. MOTION TO EXCLUDE REFERENCES TO AND EXPERT TESTIMONY REGARDING DAVID P. THOMAS' MULTIPLE SCLEROSIS
David Thomas suffers from multiple sclerosis. Although diagnosed with this condition prior to the July 3, 1998 accident, David apparently did not experience any symptoms until after the accident. In Paragraph 11 of his Complaint, David made clear his intent to prove a causal link between the traumatic injuries he sustained in the accident and the onset of his MS symptoms:
As a result of the accident and the fault and neglect of Horace D. Poole, David P. Thomas was injured in the accident. Prior to the accident, David P. Thomas had been diagnosed with multiple sclerosis, but was not having any symptoms or problems having been in remission. After the accident, David P. Thomas began to have problems with his neck, arms, shoulders and back as well as headaches, vision problems and other problems. Medical professionals have advised David P. Thomas that the accident aggravated his pre-existing multiple sclerosis. . . .
Farmer and Liberty move in limine to exclude testimony regarding such a causal link and further move to exclude any mention whatsoever of David's MS. In their view, any expert testimony regarding the role of trauma in causing or exacerbating MS cannot meet the Daubert standards of admissibility and any mention of David's MS is irrelevant and prejudicial. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Defendants' Daubert motion places this Court squarely in the middle of a complex, and often heated, debate within the medical world.
According to the National Multiple Sclerosis Society, "[t]he role of trauma in causing MS or in triggering subsequent MS exacerbations (also known as attacks, relapses or flares) has been the subject of controversy for many years." The National Multiple Sclerosis Society (Feb. 9, 2000)http://www.nmss.org/infoframe.html. "[D]espite the long history of this idea, the proposed causal link between [physical trauma or psychological stress] and MS has yet to be established or refuted conclusively". D. S. Goodin et al., The Relationship of MS to Physical Trauma and Psychological Stress: Report of the Therapeutics and Technology Assessment Subcommittee of the American Academy of Neurology, 52 NEUROLOGY 1737, 1737 (1999) (hereinafter "the Goodin Report"). In 1999, a subcommittee of the American Academy of Neurology headed by Dr. Douglas S. Goodin, published an influential and well-respected review of several studies of the relationship of MS to physical trauma and psychological stress "in an attempt to define the current state of knowledge in this area." Id. at 1738. The Goodin Report acknowledged that "it seems reasonable to conclude that a causal relationship between trauma and either the onset or the exacerbation of MS is biologically plausible", id., but, after thoroughly reviewing several studies, concluded that
Dr. Steven Zuckerman, David's treating physician who first raised the possibility that David's MS might have been exacerbated by the auto accident, had this to say about the Goodin Report: ". . . I think for all intents and purposes, this article represents the definitive investigation of the relationship; and that it represents the position paper of the American Academy of Neurology, which is the official neurological organization and scientific association. So, the position paper, as described here, certainly has an authoritative statements as exists [sic]. And if anybody disagrees with that, they are really in no position of greater authority to challenge this statement. . . . I mean, this is just about as close to neurological gospel as you can get at this point in time." Zuckerman Depo. pp. 13-14.
[o]n the basis of strong and generally consistent Class II evidence, any posited association of trauma, especially head trauma, with more than a small effect on either MS onset or MS exacerbation is excluded. Moreover, the preponderance of Class II evidence supports no association between physical trauma and either MS onset or MS exacerbation.Id. at 1744.
"Class II" evidence is defined as evidence "provided by one or more well-designed clinical studies such as case control and cohort studies", as opposed to randomized, controlled clinical trials (Class I) and expert opinion or nonrandomized historical controls (Class III). Goodin Report at 1738.
Despite the authoritative weight of the Goodin Report, there are liable to be members of the medical profession who disagree with its conclusions. For example, in an earlier literature review, Harvard Medical School's Dr. Charles M. Poser, a vocal proponent of the trauma theory, criticized the underlying assumptions of several studies that attempted to establish or deny causal relationships. Charles M. Poser, The Role of Trauma in the Pathogenesis of Multiple Sclerosis: A Review, 96 CLINICAL NEUROLOGY AND NEUROSURGERY 103 (1994). In particular, Dr. Poser argued that researchers using epidemiological and biostatistical evidence unjustifiably "assume that MS patients are not only genetically and immunologically identical, but that their disease has reached the same extent of clinical and pathologic involvement, and a similar degree of activity at the time of trauma." Id. at 108. In Dr. Poser's view, "just as MS patients will not necessarily have exacerbations after all viral infections, it is illogical to expect new or more severe symptoms after every episode of trauma in every MS patient". Id. at 106. Although the parties have not brought to the Court's attention any statements by Dr. Poser that post-date the Goodin Report, it is likely that he would object to the assumptions underlying the Goodin team's efforts.
Plaintiff attached a summary of this and several other articles to his opposition memorandum and later mailed complete copies to Chambers. Although the Court appreciates plaintiff's efforts to present a full picture of Dr. Poser's works, plaintiff should have moved for leave to supplement his opposition to ensure that these articles were made part of the record. The Court has instructed the docket clerk to file these articles in the record and has considered their contents.
Thus, there is an active debate within the medical community as to whether physical trauma can cause or exacerbate MS. Farmer and Liberty urge the Court to side with the Goodin Report. David urges the Court not to declare either side the winner, as reasonable medical researchers have come to opposite conclusions. Fortunately for the Court, however, deciding this matter does not require the taking of sides.
According to the memoranda and evidence before the Court, the only person who would be called on to offer an opinion as to whether the trauma from the accident could have exacerbated David's MS is Dr. Steven Zuckerman, David's treating physician. On August 8, 1998 and September 9, 1998, Dr. Zuckerman raised the possibility in David's progress reports that "the accident aggravated his pre-existing multiple sclerosis." When questioned about this during his deposition on November 23, 1999, however, Dr. Zuckerman quickly distanced himself from such speculation. Dr. Zuckerman described his knowledge of the trauma causation theory in 1998 as "conjectural" and stated that his comments at that time did not reflect "any degree of scientific certainty on [his] part." As for his knowledge in November of 1999, Dr. Zuckerman appeared to put great stock in the Goodin Report, stating that it "is just about as close to neurological gospel as you can get at this point in time." Thus, it does not appear that Dr. Zuckerman is qualified — or even willing — to offer an opinion that the trauma from the July 3, 1998 accident caused or exacerbated David's MS, and he will be precluded from so testifying. Because neither the defendants nor the plaintiffs have brought to the Court's attention any other witnesses who may wish to offer an expert opinion as to the role of trauma in the etiology of MS, the Court declines to exclude "any testimony by . . . any other physician seeking to suggest any relationship between plaintiff's traumatic injuries and his pre-existing multiple sclerosis" — this appears to be a non-issue.
Memorandum in Support of In Limine Motion to Exclude Evidence p. 2.
Zuckerman Depo. pp. 10-11.
Zuckerman Depo. p. 14. See also note 4, supra.
Preliminary Statement to Defendants' In Limine Motion to Exclude Evidence p. 1.
Defendants' strongest argument to exclude any such testimony is their analogy to the Fifth Circuit's decision inBlack v. Food Lion, 171 F.3d 308 (1999). In Food Lion, the Fifth Circuit found that the magistrate judge abused her discretion under Daubert in allowing the plaintiff's treating physician to offer expert testimony that the trauma from plaintiff's slip-and-fall caused her fibromyaglia because the available medical evidence did not support such an opinion. Critical to the Fifth Circuit's decision was a "Consensus Report" published in the Journal of Rheumatology which concluded that the overall data from the literature was insufficient to indicate whether causal relationships exist between trauma and fibromyalgia. Food Lion, 171 F.3d at 312. There is obviously a great similarity between the "Consensus Report" in Food Lion and the Goodin Report at issue here, and Food Lion might therefore mandate exclusion of a trauma causation theory. Food Lion is potentially distinguishable from the instant case, however, because, unlike this case, no studies were admitted to contradict the findings of the "Consensus Report", which could thus be viewed as the definitive statement on the issue. See Food Lion, 171 F.3d at 313 n. 3. In any event, as described above, the Court finds it unnecessary to decide this issue generally when it can do so in a much narrower context.
Saying that Dr. Zuckerman cannot testify that the trauma caused an "exacerbation" of David's MS does not mean that Dr. Zuckerman cannot testify about any aspects of David's MS. Indeed, an understanding of David's disease and its interaction with his injuries is crucial to understanding the extent of David's damages. For example, even though the trauma may not have exacerbated the progression of David's MS as the term "exacerbate" is used in the MS field, David might experience the pain from his injuries in a qualitatively different manner than would an individual without MS. This type of testimony does not delve into the etiology of MS but rather concerns the symptomatology of MS, and shall be allowed. Thus, Farmer and Liberty's motion to exclude all references to David's MS is denied.
By way of analogy, slapping a sun-burned person on the back does not cause the sunburn, but it makes the pain from the sunburn feel worse. Similarly, David's traumatic injuries might not have exacerbated the destruction of the myelin covering of the nerve cell fibers in David's brain and spinal cord, but might have made the pain from his MS feel worse.
Indeed, this aspect of the motion appears to have been thrown in as an afterthought. Although Farmer and Liberty state that they wish the Court to exclude any reference to David's pre-existing MS at trial as irrelevant and prejudicial, they devote only three lines of their nine-page memorandum to fleshing out this argument.
C. CONCLUSION
The Court finds that it has supplemental, but not original, jurisdiction over Tonya Lorio Thomas' loss of consortium claim and orders Mrs. Thomas to amend her Complaint accordingly. The Court also finds that Dr. Stephen Zuckerman should be precluded from testifying that David Thomas' traumatic injuries caused or exacerbated Mr. Thomas' MS, but shall allow other testimony regarding Mr. Thomas' MS. Accordingly,IT IS ORDERED that Defendants E. L. Farmer Company and Liberty Mutual Insurance Company's Motion to Dismiss or, Alternatively, for Summary Judgment be DENIED. IT IS FURTHER ORDERED THAT Defendants E. L. Farmer Company and Liberty Mutual Insurance Company's In Limine Motion to Exclude Evidence be GRANTED IN PART AND DENIED IN PART.
New Orleans, Louisiana, this 10th day of February, 2000.