In the
United States Court of Appeals
For the Seventh Circuit

Nos. 98-4169, 98-4222

ROBERT E. COOPER and MARIANN POGGE, Trustee
of the Bankruptcy Estate of Robert E. Cooper,

Plaintiffs-Appellants, Cross-Appellees,

v.

CARL A. NELSON & CO., a corporation,

Defendant-Appellee, Cross-Appellant.



Appeal from the United States District Court
for the Central District of Illinois.
No. 94-1274--Joe B. McDade, Chief Judge.


Argued September 16, 1999--Decided March 7, 2000



      Before RIPPLE, MANION and DIANE P. WOOD, Circuit
Judges.

      RIPPLE, Circuit Judge. Robert E. Cooper/1
brought this personal injury action against Carl
A. Nelson & Co. ("Nelson"), seeking damages for
an accident at a construction site. The case
proceeded to trial, and a jury verdict was
entered for Nelson. For the reasons set forth in
the following opinion, we reverse the judgment of
the district court and remand the case to the
district court for proceedings consistent with
this opinion.

I

BACKGROUND

A.   Facts

      Nelson was the general contractor at the
construction of a new Wal-Mart in Macomb,
Illinois. Mr. Cooper was an electrician working
for one of Nelson’s subcontractors. Workers at
the site were encouraged by Nelson to park in a
vacant lot at the existing Wal-Mart adjacent to
the construction site./2 This arrangement
required that they traverse a drainage ditch to
access the construction trailers. The bottom of
the ditch was spanned by planks, so that the
construction workers would not have to walk
through the bottom of the ditch. Rather, they had
to walk down an incline and then across the
planks and up an incline on the other side. The
incline down to the planks became muddy whenever
it rained, and it was difficult to maintain
footing. Consequently, Nelson laid pallets in
this area to afford workers additional traction.
The exact nature of the plank bridge and the
condition of the bottom of the ditch were
subjects of some dispute in the district court.

      On July 7, 1992, Mr. Cooper slipped and fell
while traversing this drainage ditch. He claims
to have been knocked unconscious in his fall, and
does not recall exactly where he was when he
fell. He testified that it was raining at the
time of his accident and that both the ditch and
the planks were wet and slippery.

B.   Proceedings in the District Court

      Mr. Cooper’s initial amended complaint alleged
that he fell on the planks over the bottom of the
ditch. During discovery, he acknowledged that he
was not certain about the exact place of his
fall. He did not, however, further amend his
complaint to reflect this uncertainty. In ruling
on a motion for summary judgment filed by Nelson,
the district court determined that Mr. Cooper’s
claim could not be sustained on the theory that
he had fallen on the planks themselves and,
therefore, granted summary judgment for Nelson.

      The district court noted, however, that the
evidence produced at discovery suggested that Mr.
Cooper had fallen on the incline leading down
toward the location of the planks across the
bottom of the ditch. The district court therefore
vacated its grant of summary judgment and allowed
Mr. Cooper to amend his pleadings to allege that
he had fallen on the incline. In the new amended
pleading, Mr. Cooper alleged that he had fallen
on the muddy incline approaching the planks in
the ditch, not on the planks themselves.

      Nelson later sought, through a motion in limine,
to preclude at trial any mention of Mr. Cooper’s
having fallen on the planks. The district court
granted the motion. The district court noted that
the allegation in the second amended complaint
was that Mr. Cooper fell on the incline
approaching the planks and ruled that Mr. Cooper
ought to be bound at trial by that allegation.

      Mr. Cooper sought to introduce at trial the
deposition testimony of medical professionals who
had examined him. Among those experts were Dr.
William Richardson, a specialist in internal
medicine affiliated with the St. Louis University
School of Medicine; Dr. Emre Kokmen, a board
certified neurologist at the Mayo Clinic in
Rochester, Minnesota; and Dr. Joshua Warach, a
board certified neurologist in Springfield,
Illinois. After a hearing to determine the
admissibility of this testimony under Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993), the district court decided that the
testimony was not admissible because the
physicians had an inadequate foundation for
evaluating the cause of Mr. Cooper’s injury.
Specifically, the district court pointed to the
physicians’ finding that Mr. Cooper’s 1992 fall
was the cause of his chronic pain syndrome and
other ailments. That finding was based on Mr.
Cooper’s own statements to the physicians that he
had fallen in 1992, that before his fall he had
been healthy, and that after his fall his
physical condition had deteriorated.

      Mr. Cooper also argued that, in addition to the
medical experts, Robert Bunch, a carpenter for
Nelson, should have been allowed to testify about
when a proper man bridge was built across the
ditch. Terry Lox, a supervisor for Nelson, was
allowed to testify that at the time of Mr.
Cooper’s accident there was a man bridge across
the ditch, not merely some planks. Bunch would
have testified that he assisted in the
construction of a proper bridge after the
accident. The district court excluded the
testimony as evidence of a subsequent remedial
measure. See Fed. R. Evid. 407. The district
court also excluded a report from the Social
Security Administration finding that Mr. Cooper
was entitled to total disability benefits.

      At the close of Mr. Cooper’s case, the district
court granted Nelson summary judgment on Mr.
Cooper’s claim that Nelson had willfully and
wantonly caused his injury. The case proceeded on
Mr. Cooper’s negligence theory. After the
presentation of Nelson’s case, the district court
instructed the jury that Nelson’s duty was that
of a landowner. Mr. Cooper objected, claiming
that the contractor should not have been held to
the "passive" duty of care of a landowner, but
rather to a more active duty of ordinary care.
The jury returned a verdict for Nelson.

II

DISCUSSION

      Mr. Cooper raises six distinct issues on appeal.
He argues that the district court incorrectly
granted summary judgment on the issue of the
place of the fall, that it administered faulty
jury instructions, and that it should not have
dismissed his willful and wanton injury claim.
The other three challenges relate to the district
court’s evidentiary decisions: the rejection of
Robert Bunch’s testimony, the refusal to admit
the Social Security Administration report, and
the decision under Daubert to exclude his
proffered medical testimony. We consider these
contentions in turn.

A.   Mr. Cooper’s Fall

      Mr. Cooper cannot remember whether he fell on
the slope approaching the planks over the ditch
or on the planks themselves. He originally
claimed that he slipped on the planks, but the
district court granted summary judgment for
Nelson on the ground that the evidence did not
support such an allegation but rather tended to
show that he slipped on the incline approaching
the location of the planks. Mr. Cooper then
amended his pleading to state that he had slipped
on the incline. Later, the court granted Nelson’s
motion in limine to prevent Mr. Cooper from
offering testimony suggesting that he slipped on
the planks.

      Before this court, Mr. Cooper submits that the
district court erred when it decided to take the
issue of whether he fell on the planks away from
the jury on the ground that there was no evidence
to support a verdict for Mr. Cooper on that
theory. First, contends Mr. Cooper, the district
court ought not to have granted summary judgment
to Nelson on the ground that the amended
complaint alleged solely that Mr. Cooper had
fallen on the planks, not the incline. Second,
continues Mr. Cooper, this initial error was
compounded when the district court, although
allowing an amendment of the pleadings, refused,
by granting the motion in limine, to allow the
jury to consider the possibility that he fell on
the planks. Mr. Cooper admits that his second
amended complaint, filed with leave of court
after the district court had granted summary
judgment on the first amended complaint, alleged
only that he had slipped on the incline, not on
the planks. He asks us to take into account,
however, that this complaint was filed only after
the district court had ruled that the evidence
would not support a jury finding that he had
slipped on the planks. Therefore, he submits, its
content was governed by the law of the case as
established in the district court’s earlier
ruling.

      Nelson replies that there was no evidence to
establish that Mr. Cooper slipped on the planks
and that the district court was therefore
justified in ruling as it did. It argues that, in
response to Nelson’s summary judgment motion, Mr.
Cooper admitted that he had not fallen on the
planks but on the incline leading to the planks.
Indeed, even on this appeal, argues Nelson, Mr.
Cooper argues only that it is "just as likely"
that he fell on the planks as on the incline.

      We believe that the district court should not
have precluded the jury from considering the
possibility that Mr. Cooper fell on the planks.
In the first amended complaint, Mr. Cooper
alleged, in more detail than was required by the
Rules, that he had "slipped among planks while
carrying materials for use on the job site
walking down the incline approaching the six foot
deep ditch and then fell onto the plank boards
which were inadequate to hold him and then onto
pallets laying in the ditch six feet below." R.85
at 9-10. When this allegation was challenged by
Nelson on summary judgment, Mr. Cooper admitted
that "[h]e did not fall on the planks. He fell
among the pallets located on the incline."/3 In
the very same document, however, indeed, in the
preceding paragraph, Mr. Cooper gave a more
plenary description of his recollection of the
fall:

      9. He cannot say exactly where he fell because
he was knocked out by the fall. He remembers
coming off the flat ground getting ready to go
down the ditch; he remembers starting down the
incline. He could have been on the 2 by 10 planks
when he fell, but he cannot honestly answer yes
or no. (Cooper dep. 32)./4

      The district was correct when it concluded that
Mr. Cooper’s initial amended complaint had been
too specific when it alleged only that he had
slipped on the incline./5 However, we think that
the district court went too far in its criticism
when it further concluded that the evidence of
record, including Mr. Cooper’s own deposition
testimony, precluded the jury from considering
the possibility that he fell among the planks.

      This misapprehension on the part of the district
court was partially corrected when the court
allowed Mr. Cooper to amend his complaint.
Unfortunately, as we see it, even at this stage
the district court’s actions placed, as a
practical matter, inappropriate restrictions on
Mr. Cooper’s effort to replead. The critical
document is the January 16, 1996 summary judgment
order; to get back into court, Mr. Cooper had to
overcome the deficiencies perceived by the
district court in his first amended complaint.
That summary judgment order was the only guidance
Mr. Cooper had on how he might revive his case.
In that document, the district court had not only
rejected the possibility that the jury might
conclude that he fell on the planks, it also
expressed clearly its own view of what the
evidence might show:
Defendant contends that Plaintiff cannot show
proximate cause here because there is no evidence
that the planks over the ditch had anything to do
with Plaintiff’s injury. Plaintiff does nothing
to refute this claim. Rather, Plaintiff merely
changes the relevant facts in his Statement of
Disputed Facts, asserting that "[h]e did not fall
on the planks. He fell among the pallets located
on the incline." If the Court were to focus upon
these newfound facts, it would hold that the
testimony evinced during discovery is enough to
preclude summary judgment here. The theory would
be that Defendant’s failure to remedy the unsafe
condition of the entire pathway (the inclines,
the pallets and the planks) during rainy periods
caused Cooper to traverse the incline on the mud,
thus causing him to slip and injure himself.

R.105 at 19-20 (emphasis added). As we have noted
earlier, this statement of the district court was
Mr. Cooper’s only guidance on how to restart his
case. From our review of the record, we must
conclude, however, that the district court’s
estimation of Mr. Cooper’s case in that summary
judgment order rested on a misapprehension of the
record. For instance, although the court
correctly noted that "He testified that he fell
somewhere between the beginning of the slope to
halfway down the slope," Mr. Cooper also said
that he fell somewhere "between the crest of the
slope and halfway across the planks." Cooper
deposition at 39 (quoting the original
complaint). We cannot say that Mr. Cooper’s
deposition testimony is accurately reported in
the court’s statement that "Plaintiff knows that
he fell somewhere between the top of the incline
and half way down." R.105 at 20. Similarly
problematic is the district court’s assertion
that "It is undisputed that Plaintiff did not
slip or fall on the planks themselves." Id. at
21. Mr. Cooper said specifically that he "could
have been" on the planks when he fell. Cooper
deposition at 32. His testimony was at least
partially corroborated by the deposition
testimony of his brother, whose testimony as to
Mr. Cooper’s position after the fall at least
allowed the inference that he had fallen backward
from the planks onto the pallets.

      As a general proposition, a district court has
the discretion to treat an allegation in a
party’s pleading as a judicial admission. See
Taylor v. Monsanto Co., 150 F.3d 806, 809 (7th
Cir. 1998); Schott v. American Honda Motor Co.,
976 F.2d 58, 61 (1st Cir. 1992). A judicial
admission trumps evidence. See Murrey v. United
States, 73 F.3d 1448, 1455 (7th Cir. 1996);
Keller v. United States, 58 F.3d 1194, 1199 n.8
(7th Cir. 1995). Here, however, it would be
inappropriate to treat the allegations in the
second amended complaint as a binding admission
that ought to bind Mr. Cooper in the subsequent
trial. The allegations of that second amended
complaint are grounded in the district court’s
earlier ruling that the evidence would not
support a jury finding that Mr. Cooper fell on
the planks, a ruling we think was based on a
misapprehension of the record. As we have noted
above, we believe that the evidence of record
made the exact place of the fall a jury issue
that ought not to have been excluded from the
trial of this matter.

      Nelson argues that we should not consider Mr.
Cooper’s argument that he fell on the planks
rather than the incline. Nelson contends that, if
Mr. Cooper wanted to preserve the option of
making such an argument, he should have appealed
the district court’s initial grant of summary
judgment rather than seeking permission to
replead in conformity with the district court’s
view of the evidence. Because, in any event, the
judgment under review cannot stand due to
instructional and evidentiary error, we believe
that, in a retrial of the case, none of the
policy concerns animating the law of the case
doctrine require that the district court’s
initial misapprehension of the evidence ought to
control. See Alston v. King, 157 F.3d 1113, 1116
(7th Cir. 1998) (holding that the law of the case
is only a presumption whose strength varies with
circumstances); see also United States v. United
States Smelting Co., 339 U.S. 186, 199 (1950).

B. Nelson’s Duty of Care and the
Resulting Jury Instructions

      In this diversity case, the nature of Nelson’s
duty to Mr. Cooper is governed by Illinois law,
and in Illinois the existence of a duty is a
question of law. See Reid v. Norfolk & W. Ry.
Co., 157 F.3d 1106, 1110 (7th Cir. 1998);
Rodriguez v. Norfolk & W. Ry. Co., 593 N.E.2d
597, 607 (Ill. App. Ct. 1992). We review such
questions de novo. See Khan v. Gallitano, 180
F.3d 829, 837 (7th Cir. 1999). Although the
existence of a duty must be determined as a
matter of law, the question of whether there was
a breach of that duty and an injury proximately
caused by that breach are questions of fact for
the jury. See Rodriguez, 593 N.E.2d at 607. An
error in jury instructions therefore can be
reversible error if it misinforms the jury about
the applicable law. See Bruno v. City of Crown
Point, 950 F.2d 355, 360 (7th Cir. 1991), cert.
denied, 505 U.S. 1207 (1992); Schranz v. Halley,
448 N.E.2d 601, 603 (Ill. App. Ct. 1983).

      The district court’s instructions to the jury
asked it to consider whether Nelson had exercised
reasonable care, the standard applied to
landowners in Illinois for injuries occurring on
their land. See Lewis E. v. Spagnolo, 710 N.E.2d
798, 815 (Ill. 1999); Ward v. K-Mart Corp., 554
N.E.2d 223, 229 (Ill. 1990). Illinois has adopted
the rules set forth in sections 343 and 343A of
the Restatement (Second) of Torts regarding the
duty of possessors of land to their invitees.
Therefore, as a general rule, a landowner in
Illinois is only liable for harm caused to
invitees by a condition on his land if he:
(a) knows or by the exercise of reasonable care
would discover the condition, and should realize
that it involves an unreasonable risk of harm to
such invitees, and

(b) should expect that they will not discover or
realize the danger, or will fail to protect
themselves against it, and

(c) fails to exercise reasonable care to protect
them against the danger.

Genaust v. Illinois Power Co., 343 N.E.2d 465,
472 (Ill. 1976) (quoting Restatement (Second) of
Torts sec. 343); see also Deibert v. Bauer Bros.
Const. Co., 566 N.E.2d 239, 241 (Ill. 1990)
(quoting Genaust); Ward, 554 N.E.2d at 229
(same). As a general rule, therefore, landowners
in Illinois are not liable to invitees when
invitees should have realized the danger and
could have protected themselves against it; the
landowner’s duty is only to rid the land of
unreasonable dangers. As the Supreme Court of
Illinois pointed out in Deibert, this general
rule is subject to an exception set forth in sec.
343A of the Restatement. See 566 N.E.2d at 243.
That section states:

      A possessor of land is not liable to his
invitees for physical harm caused to them by any
activity or condition on the land whose danger is
known or obvious to them, unless the possessor
should anticipate the harm despite such knowledge
or obviousness.

Restatement (Second) of Torts sec. 343A(1), at
218 (1965), quoted in 566 N.E.2d at 241. In the
case before us, the general contractor, Nelson,
stands in the place of the landowner and, for
purposes of our analysis, is the possessor of the
land. See Deibert, 566 N.E.2d at 240-43.

      We think that two considerations lead to the
conclusion that the duty of Nelson was not simply
that set forth in sec. 343 of the Restatement
(Second) of Torts. First, as the Supreme Court of
Illinois made clear in Deibert, the duty of the
landowner is set forth not only in sec. 343 but
also in the exception to that general rule in
sec. 343A. See id. at 241-42. This latter
provision requires that the possessor of the land
remedy an activity or condition on the land
which, although known and obvious to the invitee,
may still cause that individual harm. Here,
Nelson had undertaken to construct a walkway of
pallets to permit the workers to traverse the
incline and a bridge of planks to cross the
bottom of the ditch. According to the evidence of
record, the jury was entitled to believe Mr.
Cooper’s allegations that the wooden walkway had
become so muddy that he was required to walk down
the unprotected incline which also posed a danger
because of its muddy condition. The jury was
entitled to consider whether the condition of the
premises was such that Nelson was required to
anticipate that workers such as Mr. Cooper might
avoid the mud on the pallets and consider the
unprotected incline to be at least as safe a
passage as the one prepared by Nelson.

      Second, the contractual provision governing the
relationship of the general contractor, Nelson,
to the subcontractor also appears to have set a
standard of care somewhat higher than the one set
forth in the Restatement sections. The
contractual provision states that the contractor
"shall take reasonable precautions for safety of
. . . employees on the Work," Appellant’s Br. at
21. In interpreting this section, we must be
careful not to interpret the contractual
provisions in such a way as to expand the duties
of the contractor beyond the scope of the duties
described in the contract. See American States
Ins. Co. v. A.J. Maggio, Inc., 593 N.E.2d 1083,
1086 (Ill. App. Ct. 1992)./6 In American States,
the Illinois court determined that a contractual
provision that imposed a duty to keep the work
area in reasonably safe condition imposed no
greater duty on the possessor of the land than
the common law duty stated above. By contrast,
the contractual duty here places the affirmative
duty on the possessor of the land "to take
reasonable precautions" for the safety of the
workers. In our view, the jury was entitled to
consider whether Nelson had breached its
obligation by the manner in which the pallet
walkway was constructed or by permitting its
condition to deteriorate.

      In Ward, the Supreme Court of Illinois noted
that, in ascertaining whether a possessor of land
owes a duty of care to an invitee, a court must
take into consideration the magnitude of the
burden of guarding against the injury, and the
consequences of placing that burden upon the
defendant, as well as the likelihood of injury
and the possible serious nature of such an
injury. See 554 N.E.2d at 226-27. Here, the
existence of a duty of care cannot be decided in
abstracto but must take into account the
relationship of the contractor to the
subcontractor and the undertakings of the former
for the employees of the latter. Here, the
allegation is that the prime contractor breached
its obligation to these employees, including Mr.
Cooper, by failing to maintain a proper walkway
to the job site, by permitting it to become
covered with quantities of mud that rendered it
useless, and by requiring the workers to try
other ways of making the same passage. In our
view, these allegations implicate the policy
concerns noted by the Supreme Court of Illinois
in much the same way as those cases that
articulate a higher standard of care for
landowners who place a foreign substance on their
land. See Donoho v. O’Connell’s, Inc., 148 N.E.2d
434, 439 (Ill. 1958); Wind v. Hy-Vee Food Stores,
Inc., 650 N.E.2d 258, 262 (Ill. App. Ct. 1995).

      On   the record before us, therefore, we must
conclude   that the jury was not instructed
properly   with respect to whether Nelson had
breached   its duty of care./7

C.   Mr. Cooper’s Willful and Wanton Claim

      At the close of Mr. Cooper’s evidence, the
district court granted a directed verdict for
Nelson on Mr. Cooper’s willful and wanton claims.
We review de novo the decision to grant a
directed verdict, reviewing the evidence in the
light most favorable to Mr. Cooper. See Payne v.
Milwaukee County, 146 F.3d 430, 432 (7th Cir.
1998); Bowlen v. United States, 956 F.2d 723, 727
(7th Cir. 1992).

      Because we believe that Mr. Cooper ought to be
permitted to argue that he fell on the planks
over the ditch, not on the slope approaching the
planks, we also believe that the directed verdict
on the issue of whether Nelson willfully and
wantonly caused his injury cannot stand at this
point in the litigation. The district court will
have to revisit this matter in due course. To
prevail on this theory, Mr. Cooper must show
either that Nelson actually or deliberately
intended to harm him, or that Nelson was utterly
indifferent to or showed a conscious disregard
for his personal safety. See Pfister v. Shusta,
657 N.E.2d 1013, 1016 (Ill. 1995); Bowden v. Cary
Fire Protection Dist., 710 N.E.2d 548, 552 (Ill.
App. Ct. 1999). Relying on the testimony of other
construction workers at the site, he argues that,
when a landowner knows of a dangerous condition
and fails to remedy it, he has exhibited a
reckless disregard for the safety of others that
leads to his liability for willful or wanton
injuries. See Schneiderman v. Interstate Transit
Lines, 69 N.E.2d 293, 300 (Ill. 1946). As we have
held in the preceding section, Mr. Cooper ought
to be permitted to argue that he slipped not on
the incline but on the planks. Therefore, he
should not be foreclosed from arguing that
Nelson’s decision to utilize this configuration
rather than a man bridge constituted willful or
wanton behavior.

D.   Testimony of Robert Bunch

      Although the matter may not arise again in the
same context, we shall address, for the sake of
judicial economy, the district court’s decision
not to admit the testimony of Robert Bunch that a
man bridge was built over the area after Mr.
Cooper’s fall.

      The district court admitted testimony from Terry
Lox, a Nelson supervisor, that on the day of Mr.
Cooper’s injury, the ditch was spanned not by
planks, but by a man bridge. The court instructed
the jury that it was to consider Lox’s testimony
only for the purposes of determining Lox’s
credibility. The testimony was limited because,
in light of the determination that Mr. Cooper
slipped on the incline, the exact nature of the
bridge at the time of the incident was
irrelevant. Mr. Cooper then sought to contradict
Lox through testimony by Robert Bunch, another
worker at the site, that Bunch assisted Lox with
the construction of a bridge after Mr. Cooper’s
injury. The district court would not allow this
testimony pursuant to Federal Rule of Evidence
407, which bars testimony about subsequent
remedial measures for the purposes of proving
negligence. The district court’s rulings on
evidentiary decisions are reviewed for an abuse
of discretion. See White v. United States, 148
F.3d 787, 791 (7th Cir. 1998); United States v.
Beyer, 106 F.3d 175, 179 (7th Cir. 1997).

      The district court did not abuse its discretion
in excluding Bunch’s testimony. There was nothing
to prevent Mr. Cooper from contradicting Lox’s
story, or attacking Lox’s credibility, by
introducing evidence that there was no bridge at
the time of Mr. Cooper’s injury. At Bunch’s
deposition, Mr. Cooper’s counsel did not ask
Bunch to describe the condition of the ditch
before the accident, which would have been
permissible. Instead, he asked Bunch to describe
his assistance with the construction of a bridge
after the accident, which was not. The district
court did not abuse its discretion in excluding
the evidence.

E. The Social Security Administration
Report
      Mr. Cooper sought to introduce a Social Security
Administration report, pursuant to Federal Rule
of Evidence 803(8)(C), the hearsay exception for
government reports. An administrative law judge
of the Social Security Administration determined
that Mr. Cooper’s chronic pain syndrome entitled
him to total disability benefits. His counsel
explained that he wished to argue to the jury
that Mr. Cooper’s eligibility for social security
disability payments demonstrated the severity of
his injury and, therefore, was relevant to the
measure of damages. The district court refused to
admit the report into evidence, finding it both
irrelevant and more prejudicial than probative
pursuant to Federal Rule of Evidence 403. When
reviewing the district court’s evidentiary
decisions, we employ an abuse of discretion
standard and consequently give great deference to
the trial court. See Merriweather v. Family
Dollar Stores of Ind., 103 F.3d 576, 580 (7th
Cir. 1996); Littlefield v. McGuffey, 954 F.2d
1337, 1342 (7th Cir. 1992).

      We have noted that the district court retains
significant discretion to exclude administrative
findings that meet the standards of Federal Rule
of Evidence 803(8)(C). See Halloway v. Milwaukee
County, 180 F.3d 820, 827 n.9 (7th Cir. 1999);
see also Johnson v. Yellow Freight Sys., 734 F.2d
1304, 1309 (8th Cir.) ("In our view, it would be
ill-advised to shackle the discretion of trial
judges with a rule of per se admissibility."),
cert. denied, 469 U.S. 1041 (1984). Evidence
admissible under Rule 803(8)(C) is still subject
to exclusion on other grounds, such as relevancy.
See Beech Aircraft v. Rainey, 488 U.S. 153, 167-
68 (1988); Paolitto v. John Brown E.&C., Inc.,
151 F.3d 60, 64 (2d Cir. 1998). The district
court here decided that a finding that Mr. Cooper
met the Social Security Administration’s
definition of totally disabled was irrelevant
because the jury would be applying a different
standard. Our review of the record leaves us with
some doubt, however, as to whether the district
court and counsel miscommunicated about the
narrow purpose for which Mr. Cooper sought
admission of the document. Even on this narrow
ground, the district court may have believed that
any probative value of the report was outweighed
by its potential to confuse the jury. If the
issue arises again on remand, the district court
is free to revisit the issue.

F.   Medical Expert Testimony

      At trial, Mr. Cooper attempted to establish that
he was suffering from chronic pain syndrome
("CPS") and that this condition was caused by his
fall. He offered the testimony of three medical
expert witnesses to substantiate his submission.
The three witnesses--Dr. William Richardson, Dr.
Emre Kokmen, and Dr. Joshua D. Warach--were
prepared to testify about the CPS suffered by Mr.
Cooper. The parties agreed that the district
court’s decision on the admissibility of Dr.
Richardson’s testimony also would apply to Dr.
Kokmen and Dr. Warach because the question
considered by the court--the propriety of
reliance on Mr. Cooper’s statements to the
physicians in determining causation--was the same
for each of them.

      The district court refused to admit the
testimony. Because each physician relied on Mr.
Cooper’s statements about his past medical
history as the basis for a diagnosis that Mr.
Cooper’s fall caused his CPS, the district court
concluded that the physicians had no scientific
basis for their testimony. We believe that the
district court assumed an overly aggressive role
as "gatekeeper" and that the jury ought to have
been allowed to assess the physicians’ assertion
that trauma from the fall caused Mr. Cooper’s
pain.

      Dr. Richardson, a pain specialist associated
with St. Louis University, treated Mr. Cooper for
chronic pain, beginning on August 30, 1994. In
his deposition testimony, he stated that trauma
is a recognized cause of chronic pain syndrome.
He also described his examination of Mr. Cooper,
which included a physical examination and a self-
reported medical history from the patient. In the
course of that medical history, Mr. Cooper told
him about his fall at the Nelson construction
site. Mr. Cooper also told Dr. Richardson that,
after the accident, he began experiencing pain in
his mid-thoracic area, his buttocks and thighs,
his right leg, his neck, and his shoulders, and
that he also suffered headaches. In his
diagnosis, Dr. Richardson concluded that Mr.
Cooper was suffering from chronic musculoskeletal
pain. Dr. Richardson further said that, based on
Mr. Cooper’s statement that he had been free of
pain before the fall, the pain was caused by the
fall. Dr. Richardson also explained that the
cause of Mr. Cooper’s trauma was irrelevant to
him in prescribing a course of treatment and
that, therefore, he did not inquire further as to
the cause of Mr. Cooper’s CPS.

      The district court, attempting to fulfill the
mandate of Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993),
essentially identified four issues that it
believed needed to be resolved before Dr.
Richardson’s testimony could be admitted. Those
issues were:

      1)   Is there a scientific basis for diagnosing
a patient as having chronic pain syndrome?

      2) If so, is there a scientific basis for
finding that trauma could cause chronic pain
syndrome?

      3) If so, is there a scientific basis for
finding that Mr. Cooper has chronic pain
syndrome?

      4) If so, is there a scientific basis for
finding that Mr. Cooper’s chronic pain syndrome
was caused by trauma?

      As this case comes to us, Nelson has admitted
that the diagnosis of CPS is generally, although
not universally, recognized among members of the
medical profession. It recognizes that, among
physicians who believe that CPS is a disease,
trauma is generally recognized as a cause of that
condition. It also acknowledges that Dr.
Richardson may have employed a differential
diagnosis to determine whether Mr. Cooper suffers
from CPS. Nelson therefore asks us to focus on
the fourth inquiry: whether there was a
scientific basis for concluding that Mr. Cooper’s
CPS was caused by the fall down the hill. Nelson
contends that not only could Dr. Richardson not
rely on a patient’s statements to prove
causation, but, in this case, Mr. Cooper had lied
about the nature of the incident that allegedly
caused his injuries and had lied further about
being free of pain before the incident. Nelson
contends, therefore, that the court properly
refused to admit Dr. Richardson’s testimony on
the issue of causation.

      More specifically, Nelson stresses that Dr.
Richardson admitted that not all CPS patients can
point to a particular event as the cause of their
condition and further admitted that emotional
factors have been known to play a role in the
onset of the condition. Nelson further contends
that Dr. Richardson had not taken into account
the possible effect of such other factors in Mr.
Richardson’s life on the onset of the condition.
Indeed, argues Nelson, Dr. Richardson made no
critical evaluation of the cause of Mr. Cooper’s
CPS because it was not necessary to his treatment
of the condition that he know with any certainty
its cause. Before this court, Nelson argues that
Dr. Richardson’s "post hoc, propter hoc"
determination of cause, although perhaps an
acceptable methodology in cases in which the
mechanism of injury is understood, is not
adequate in cases such as this one in which that
mechanism is not understood.

      We think that Nelson suggests, in the context of
this case, an overly demanding gatekeeping role
for the district court. Indeed, Nelson seems to
agree that, in clinical medicine, the methodology
of physical examination and self-reported medical
history employed by Dr. Richardson is generally
appropriate. Although it disputes the
acceptability of such an approach in the case of
conditions whose etiologies are less specific, it
suggests no alternative that could be employed by
the conscientious clinical physician in this
situation. Certainly, when the asserted cause of
the patient’s condition is a phenomenon that
requires specialized scientific knowledge, "an
insightful, even an inspired, hunch" will not
suffice. Rosen v. Ciba-Geigy Corp., 78 F.3d 316,
319 (7th Cir.) (testimony of treating physician
that nicotine patch worn for three days was a
cause for myocardial infarction properly
excluded), cert. denied, 519 U.S. 819 (1986). See
also Bradley v. Brown, 42 F.3d 434, 438 (7th Cir.
1994) (testimony of physician that multiple
chemical sensitivity was the result of pesticide
exposure properly excluded); O’Conner v.
Commonwealth Edison Co., 13 F.3d 1090, 1107 (7th
Cir.) (physician’s testimony that radiation
exposure caused plaintiff’s cataracts properly
excluded), cert. denied, 512 U.S. 1222 (1994);
Porter v. Whitehall Labs., Inc., 9 F.3d 607, 614
(7th Cir. 1993) (treating physician’s testimony
that renal failure caused by ibuprofen was
properly excluded). In Rosen, Chief Judge Posner
emphasized that the purpose of the rule announced
in Daubert "was to make sure that when scientists
testify in court they adhere to the same
standards of intellectual rigor that are demanded
in their professional work." 78 F.3d at 318.
Indeed, Rule 703 of the Federal Rules of Evidence
explicitly permits reliance on material
"reasonably relied upon by experts in the
particular field in forming opinions or
inferences." Fed. R. Evid. 703. Our case law has
recognized that experts in various fields may
rely properly on a wide variety of sources and
may employ a similarly wide choice of
methodologies in developing an expert opinion.
See United States v. Lundy, 809 F.2d 392, 395-96
(7th Cir. 1987) (noting that arson experts
regularly rely upon "interviews with many
witnesses to a fire" as a "standard investigating
technique in cause and origin inquiries"); see
also United States v. Lawson, 653 F.2d 299, 302
n.7 (7th Cir. 1981), cert. denied, 454 U.S. 1150
(1982). Here, Dr. Richardson essentially
testified that a patient history indicating
freedom from pain before a given event followed
by pain of the type experienced and observed
following the incident was a sufficient basis for
diagnosis and treatment of Mr. Cooper’s chronic
pain syndrome.

      The possibility of Mr. Cooper’s CPS being
attributable to a factor other than the fall is a
subject quite susceptible to exploration on
cross-examination by opposing counsel. Similarly,
the accuracy and truthfulness of the underlying
medical history is subject to meaningful
exploration on cross-examination and ultimately
to jury evaluation. Therefore, Nelson’s
contention that other conditions of Mr. Cooper’s
might have caused his CPS goes to the weight of
the medical testimony, not its admissibility.
Notably, on cross-examination of Dr. Richardson,
Nelson elicited testimony that Dr. Richardson had
really done no investigation into the causes of
Mr. Cooper’s CPS; Nelson presented evidence that
Mr. Cooper suffered physical maladies before July
7, 1992; it also presented evidence that Mr.
Cooper had been less than truthful in the history
he submitted to Dr. Richardson. This evidence
would permit a jury to conclude that the fall did
nothing to cause CPS. The proper method of
attacking evidence that is admissible but subject
to doubt is to cross-examine vigorously, to
present contrary evidence, and to give careful
instructions on the burden of proof. Daubert
acknowledged the continuing vital role that
"[v]igorous cross-examination, presentation of
contrary evidence, and careful instruction on the
burden of proof," 509 U.S. at 596, are to play in
the trier of fact’s ultimate evaluation of
admissible but shaky evidence. See Daubert, 509
U.S. at 596. See also Rushing v. Kansas City S.
Ry. Co., 185 F.3d 496, 507 n.10 (5th Cir. 1999);
Allison v. McGhan Med. Corp., 184 F.3d 1300, 1311
(11th Cir. 1999); Freeman v. Case Corp., 118 F.3d
1011, 1017 (4th Cir. 1997), cert. denied, 522
U.S. 1069 (1998). All of these tools were
utilized by Nelson.

      Here, a physician employed the accepted
diagnostic tool of examination accompanied by
physical history as related by the patient./8 In
this case, this methodology was acceptable under
the gatekeeping requirements of Daubert. We are
aware that, although Daubert is concerned
primarily with the issue of methodology, not
conclusions, "conclusions and methodology are not
entirely distinct from one another. Trained
experts commonly extrapolate from existing data."
General Elec. Co. v. Joiner, 118 S. Ct. 512, 519
(1997). Although a court "may conclude that there
is simply too great an analytical gap between the
data and the opinion proffered," id., no such
suggestion has been made here. Accordingly, in
the circumstances presented here, Dr.
Richardson’s testimony should not have been
excluded under Daubert solely on the ground that
his causation diagnosis was based only on his
patient’s self-reported history.

      On remand, the district court must revisit the
issue of the admissibility of the testimony of
the physicians and must determine the
admissibility of the proffered evidence in
accordance with this decision. The district court
retains, of course, the discretion to exclude
portions of the depositions that are inconsistent
with other Federal Rules of Evidence.

G.   Comparative Fault

      Because we remand this case for a new trial, we
must consider Nelson’s cross-appeal. After the
close of evidence, the district court granted a
directed verdict for Mr. Cooper on the issue of
comparative fault, finding no evidence to suggest
that there was an alternate route for Mr. Cooper
to use to get around the ditch. Nelson argues
that there was testimony that Mr. Cooper knew the
ditch was dangerous, and knew of ways around the
ditch, and that, therefore, the jury should have
had a chance to consider the question of
comparative fault. We review the district court’s
decision de novo. See Payne, 146 F.3d at 432;
Bowlen, 956 F.2d at 727.

       A manager for Nelson, James Quickstead,
testified that there was an alternative area for
workers to park that would not require them to
walk over the ditch. He acknowledged, however,
that the Wal-Mart parking lot was the primary
parking lot. Robert Bunch testified that some of
Nelson’s men took a truck around the ditch and
that, on one occasion, a Nelson truck carried his
tools around the ditch. Mr. Cooper responds that
Bunch’s testimony discussed the time period after
Mr. Cooper’s injury. Although Nelson is correct
that Mr. Cooper was aware of the danger of the
ditch and proceeded despite it, Mr. Cooper parked
in the primary parking lot for Nelson workers,
and crossed the primary route used by Nelson
workers from that lot to the work site. We agree
with the district court that his choice to do so
does not implicate the doctrine of comparative
fault.

Conclusion

      For the foregoing reasons, the jury verdict is
reversed, and the case is remanded for further
proceedings consistent with this opinion./9

REVERSED and REMANDED



/1 Although the case is brought by the injured party
and the trustee of his bankruptcy estate, for the
reader’s convenience, we shall refer solely to
Mr. Cooper throughout this opinion.
/2 Alternative parking was available, but the lot
described in the text was the primary parking
lot.

/3 Plaintiff’s statement of genuine issues of
material fact precluding summary judgment at
I.C.10.

/4 Id. at I.C.9.

/5 We note that in a notice pleading regime, the
plaintiff is often well advised when filing his
complaint to limit the detail of its factual
averments. See American Nurses’ Ass’n v. State of
Illinois, 783 F.2d 716, 724 (7th Cir. 1986) ("A
plaintiff who files a long and detailed complaint
may plead himself out of court by including
factual allegations which if true show that his
legal rights were not invaded.").

/6 See also Pippin v. Chicago Hous. Auth., 399
N.E.2d 596, 599 (Ill. 1979) ("The Authority’s
duty was limited by the extent of the
undertaking"); Kotarba v. Jamrozik, 669 N.E.2d
1185, 1188 (Ill. App. Ct. 1996); Perkaus v.
Chicago Catholic High Sch. Athletic League, 488
N.E.2d 623, 628 (Ill. App. Ct. 1986).

/7 It is also clear that counsel properly preserved
his objection to the instruction given by the
court. R.408 at 286-87. See Lawson v. Trowbridge,
153 F.3d 368, 372 (7th Cir. 1998).

/8 Fed. R. Evid. 803(4) n.4 (statements of external
cause of pain not hearsay because of
trustworthiness).

/9 Nelson has asked that Mr. Cooper be sanctioned
for bringing a frivolous appeal. In light of our
disposition of the case, Nelson’s motion must be
denied.
