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Happel v. Walmart Stores

April 19, 2010


Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 02 C 7771-James B. Moran, Judge.

The opinion of the court was delivered by: Williams, Circuit Judge.


Before FLAUM, WILLIAMS, and SYKES, Circuit Judges.

Heidi Happel was diagnosed with Multiple Sclerosis in 1990. After the diagnosis, she did not experience any symptoms of the disease until August 1993, when a Walmart pharmacy negligently filled-and Heidi ingested-a prescription with Toradol, a medication to which Heidi was allergic. Heidi believed that the medication, which triggered a severe reaction, was the impetus for a rapid decline in her health, so she and her husband, Kent, sued Walmart. After an eight-day trial, a jury awarded the Happels $465,400 in compensatory damages. But the plaintiffs argue here that the trial court made two significant errors that reduced the total damage award. First, they contend that the trial court should have allowed them to present expert witness testimony to demonstrate that the allergic reaction to the prescription drugs exacerbated Heidi's condition. Second, the court should not have used a verdict form that allowed the jury to combine damages for Heidi and Kent rather than providing for separate awards. We agree with the trial court's decision to exclude the testimony of the plaintiffs' experts because the plaintiffs failed to properly disclose one in violation of Federal Rule of Civil Procedure 26 and the other's expertise and methodology did not comply with the Daubert standard. As to damages, we reverse and remand for a new trial so that the Happels can seek separate damage awards.


Heidi Happel experienced the first symptoms of Multiple Sclerosis ("MS") in 1984. At the time, a teenage Heidi lost some of the vision in her left eye, for which she received treatment from Dr. Peter Bringewald, a neurologist specializing in optic neurology. Heidi continued to develop more MS symptoms over the years. In 1986, she suffered from numbness and fine motor problems, in 1987, tingling in her legs, and in 1990, depression. Although Dr. Bringewald ultimately diagnosed Heidi with MS, between 1990 and 1993 she did not experience any MS symptoms other than a lingering asthma condition.

On August 4, 1993, Heidi's primary care physician prescribed Toradol, an anti-inflammatory pain reliever, to Heidi for her menstrual cramps. He called the prescription in to the Walmart pharmacy in McHenry County,*fn1 Illinois, where Heidi usually filled prescriptions for her asthma medication. Heidi was allergic to nonsteroidal anti-inflammatory drugs ("NSAIDs"), and it was her practice to notify the pharmacist of this allergy every time she had a prescription filled. On this particular day, however, Heidi was unable to go to the pharmacy, so she asked her husband, Kent Happel, to pick up the Toradol prescription. Before Kent arrived, however, the pharmacist had already been warned about Heidi's allergy to NSAIDs-in the process of inputting the prescription into Walmart's computer system (which warns pharmacists of drug interactions by a flashing screen), the pharmacist had received an electronic alert that Toradol was contraindicated. When Kent arrived, he also informed the pharmacist of Heidi's allergy.*fn2

Despite these warnings, the pharmacist filled Heidi's Toradol prescription. After Heidi ingested the drug, she went into anaphylactic shock. She was rushed to Northern Illinois Medical Center, where she was intubated for 18 hours and placed on a ventilator. Although she was released from the hospital the next day, her health quickly began to deteriorate. She has suffered memory loss, seizures, incontinence, depression, night-mares, difficulty walking, and lack of sexual interest.

The Happels sued Walmart in Illinois state court. After protracted proceedings, the Illinois Supreme Court held that Walmart owed a duty to warn Heidi or her physician when presented with a contraindicated prescription. See Happel v. Walmart Stores, Inc., 766 N.E.2d 1118 (Ill. 2002). Heidi and Kent voluntarily dismissed the lawsuit and re-filed in the Circuit Court of Cook County. Walmart then removed the case to federal court on the basis of diversity jurisdiction. Heidi alleged negligence, battery, and wilful and wanton misconduct, and Kent asserted a loss of society claim. Walmart conceded negligence in filling Heidi's Toradol prescription.

Before trial, the Happels filed initial and amended disclosures pursuant to Federal Rule of Civil Procedure 26. In both disclosures, they listed Dr. Bringewald under subsection (a)(1) as a person with discoverable information, but did not disclose him as an expert or tender his expert report which is required by subsection (a)(2). Less than two months before trial, the Happels attempted to list Dr. Bringewald as an expert witness in their pre-trial order, seeking to elicit testimony that psychological stress from the Toradol incident exacerbated Heidi's MS. Walmart filed a motion in limine to exclude Dr. Bringewald's proffered expert testimony, arguing that he had not been properly disclosed and that his opinion was not reliable under Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579 (1993). The district court granted Walmart's motion, stating that "[p]laintiffs' attempt to elevate their treating doctors' status by listing them as experts in the pre-trial motion, without rendering the required expert reports to defendant, fails as an attempt to subvert the requirements of Rule 26(a)(2)(B)."

Walmart also successfully moved to exclude portions of expert testimony from Dr. Alan Hirsch, a board-certified neurologist. The district court found that Dr. Hirsch was "not qualified to testify regarding Ms. Happel's MS, the exacerbation of her MS, or the causation of that exacerbation-anaphylactic reaction. Nor [was] he qualified to testify regarding hypoxia, hyper-capnia, hyperventilation, asthma, or lung problems." The court noted that Dr. Hirsch's "experience with MS patients was limited to those coming to him for treatment of smell disorders or mouth pain" and also found little support for his conclusions regarding the connection between stress and the exacerbation of MS. During trial, the Happels submitted a proposed verdict form that separated Heidi's damages from Kent's damages, which the district court rejected. Instead, the verdict form the court used only contained a single line for compensatory damages to be awarded to the couple. The jury awarded the Happels $465,400 on the negligence claim, but rejected the Happels' other claim for battery. Walmart moved to set off the judgment by*fn3 $150,000 because the Happels settled with Heidi's primary care physician for this amount before trial. The court granted Walmart's motion, and the Happels do not appeal this order. The Happels filed a post-trial motion for a new trial on damages, which the court denied. And the Happels now appeal that specific ruling.


A. Physicians' Causation Testimony Properly Excluded

Federal Rule of Evidence 702 governs the admission of expert testimony. It states, in relevant part, that "[i]f scientific, technical or other specialized knowledge will assist the trier of fact . . . a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion . . . ." It also requires that: (1) the testimony must be based upon sufficient facts or data; (2) it must be the product of reliable principles and methods; and (3) the witness must have applied the principles and methods reliably to the facts of the case. Id. Rule 702 requires the district court to perform a "gatekeeping" function before admitting expert scientific testimony in order to "ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993). Before considering whether the testimony "will assist the trier of fact to understand or determine a fact in issue," a district court must make "a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid." Id. at 592-93. The Supreme Court has identified the ...

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