                    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


      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.
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


      2
      The Honorable Robert T. Dawson, United States District Judge for the
Western District of Arkansas.

                                         -2-
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




      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.

                                         -3-
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 pre-
existing 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.



      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).

                                          -4-
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

      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

                                         -5-
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."


      occurred."

                                          -6-
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.

      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,

                                           -7-
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



      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-
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.




                                          -9-
       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




                                          -10-
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-

      10
           Dr. 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.)

                                           -11-
examine Dr. Reilly on all areas in dispute, and Kroger did so. "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 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

                                         -12-
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 pre-
existing 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


      11
        The 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).

                                         -13-
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:


                                         -14-
              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.




                                           -15-
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.




                                         -16-
