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No. 11-1879
ARTHUR GALLOWAY,
Plaintiff Appellant,
v.
HORNE CONCRETE CONSTRUCTION,
Defendant Appellee,
and
APOLLO INCORPORATED; SASA DJURIC,
Defendants.
No. 11-1898
ARTHUR GALLOWAY,
Plaintiff Appellee,
v.
HORNE CONCRETE CONSTRUCTION,
Defendant Appellant,
and
SASA DJURIC; APOLLO INCORPORATED,
Defendants.
Appeals from the United States District Court for the District
of Maryland, at Greenbelt. Jillyn K. Schulze, Magistrate Judge.
(8:09-cv-02274-JKS)
Argued:
Decided:
May 1, 2013
No.
11-1898
dismissed
by
PER CURIAM:
Arthur
Galloway
seeks
new
trial
in
the
District
of
Horne
Concrete
Construction,
arising
from
highway
accident.
trial
excluding
by
substantial
portion
of
his
damages
physicians,
suffered
permanent
evidence
was
Maryland
along
injuries
excluded
law,
with
its
additional
and
lost
the
court
after
admission
was
proof
future
that
earnings.
concluded
dependent
that,
upon
he
The
under
Galloway
the
jury
maintains
resulted
returned
that
in
the
verdict
courts
reduced
damages
against
erroneous
award.
Horne,
evidentiary
As
explained
damages
award
against
Horne
and
Accordingly, we vacate
remand
for
new
trial
I.
A.
At
the
time
of
the
accident
underlying
this
matter,
as
Newton, Alabama.
contract
hauler
for
K.C.
Galloway worked
Transport,
LLC,
of
Sasa
Djuric,
then
also
driving
an
eighteen-wheel
tractor-trailer,
next
morning
that
he
needed
to
go
to
the
hospital.
The
seeking
medical
treatment.
As
result,
Galloway
after
returning
home,
Galloway
sought
medical
During
Happened
two
weeks
ago.
171. 3
J.A.
Dr.
Work
Smith
and
he
returned
for
an
additional
consultation
on
Due to
neurosurgeon,
Dr.
Cezayirli,
examined
Galloway
on
from
herniated
disc.
Dr.
Cezayirlis
records
J.A. 170.
injury
conservatively;
thus,
before
considering
October
that
he
30,
had
2006,
Dr.
[c]hronic
Kelsey
lower
examined
back
and
Galloway
right
and
lower
vehicle
accident.
J.A.
58.
Dr.
Kelseys
records
further
reflect that,
[t]his is a 55 year old African American male who
comes to the Outpatient Physical Medicine Clinic at
UAB Medical West complaining of chronic lower back
pain . . . .
[Galloway] sustained this in a [motor
vehicle accident] on 9/29/06 [sic] in which he was
rear-ended by a series of tractor trailers in a multicar collision on U.S. 95 outside of Baltimore,
Maryland.
Id.
Kelsey
also
prescribed
transcutaneous
electrical
nerve
On November 29,
the
TENS
unit.
On
January
22,
2007,
Dr.
Kelsey
persisted.
As
result,
Dr.
Kelsey
recommended
that
June
14,
2007,
Dr.
Cezayirli
surgically
removed
bone
in
into
the
disc
space
Galloways
lower
back,
using
August
27,
2009,
Galloway
filed
his
single-count
Galloway
negligence
had
alleged
caused
his
therein
back
that
injuries,
the
as
defendants
well
as
other
After
the
close
of
discovery,
the
See 28 U.S.C.
defendants
filed
and
Cezayirli
on
June
21,
2011.
The
two
treating
thereafter,
Horne
moved
in
limine
to
exclude
from
the
physicians
had
never
causally
linked
Galloways
Galloway opposed
Traffic
(requiring
Safety
expert
complicated
laymen)).
Commn,
testimony
medical
With
185
to
question
regard
to
A.2d
the
715,
prove
lies
719
causation
outside
deposition
(Md.
1962)
where
knowledge
testimony
of
of
Drs.
here
is
whether
either
of
them
causally
relates
their
magistrate
judge
J.A. 346.
then
ruled
that
Dr.
Cezayirlis
J.A. 347.
Addressing the
Dr.
Kelseys
treatment
after
the
surgery
is
. . .
not
relevant here, but that Dr. Smith might link Dr. Kelseys presurgery treatments to the accident.
Id. at 351.
Accordingly,
barred
to
the
from
spinal
trial
the
fusion
admission
surgery,
the
of
all
evidence
magistrate
judge
seek
nor
recover
future
lost
wages.
Finally,
the
advise
the
jury
that
he
suffered
back
pain
from
the
accident and that he had sought medical care for the pain.
C.
The jury trial was conducted in Greenbelt on July 12-13,
2011, where the magistrate judges pretrial evidentiary rulings
prompted further discussion.
barred
from
introducing
the
evidentiary
depositions
of
Drs.
suffered
Further,
severe
though
lower
Galloway
back
was
pain
immediately
permitted
to
afterward.
testify
that
he
Galloways
evidence
relating
11
to
his
other
medical
as
the
familys
business
manager,
was
prevented
from
will
conclusion
revisited
negatively
of
her
affect
his
future
Galloways
case-in-chief,
ruling
the
on
lost
earnings.
the
wages
At
magistrate
issue,
the
judge
modifying
it
trial.
Djuric
and
Horne
then
presented
their
respective
and
was
limited
in
Hornes
case
to
just
three
witnesses.
her
stating
rejection
that
Im
of
Galloways
not
giving
claim
that
for
future
instruction
lost
.
12
J.A. 627.
three types of damages: (a) past lost wages (through the date of
trial);
(b)
suffering
past
non-economic
damages,
the
trial);
(through
date
of
including
and
(c)
pain
future
and
non-
economic damages.
The jury found Horne liable to Galloway on his negligence
claim
injuries
thereby
evidentiary
but
finding
found
limitations
that
in
Horne
favor
imposed
at
entered
accordingly
and,
on
of
had
caused
Djuric.
trial,
the
Galloways
Despite
jury
the
assessed
13,
2011,
Galloway
We possess jurisdiction
13
II.
Generally,
we
review
for
abuse
of
discretion
trial
See Bryte ex
rel. Bryte v. American Household, Inc., 429 F.3d 469, 475 (4th
Cir. 2005).
Traffic
involves
novo.
an
Safety
Commn,
interpretation
185
of
A.2d
state
715,
law,
719
which
(Md.
we
1962),
review
de
III.
A.
Galloway challenges only the amount of the judgment and
seeks a new trial in that regard, arguing that the magistrate
judges
evidentiary
rulings
precluded
the
jury
from
properly
claim
presented
expert
testimony
complicated
to
medical
question
his
entitlement
establish
that
required
to
certain
categories of damages.
In
the
seminal
case
of
Wilhelm
v.
State
Traffic
Safety
Commission, 185 A.2d 715, 719 (Md. 1962), the Court of Appeals
of
Maryland
made
clear
that
when
personal
injury
claim
the
fact-finder
negligent act. 8
to
connect
the
injuries
to
the
alleged
not
need
to
be
established
by
expert
testimony.
Id.
the
case
disability
falls
into
develops
one
of
three
coincidentally
categories:
with,
or
(1)
if
within
is
clearly
apparent
from
the
nature
and
to
matters
observation of laymen.
of
common
experience,
knowledge,
or
Id.
15
Put
succinctly,
Wilhelms
three
unnecessary.
this
categories
First,
coincidentally
dispute
with
and
of
qualifies
cases
under
where
each
experts
Galloways
back
injuries
immediately
after
Hornes
of
are
developed
negligence.
rear-ended
by
an
eighteen-wheel
tractor-trailer
in
multi-
the
court
of
appeals
deemed
expert
testimony
Importantly, however,
area.
In
discussing
the
forehead
injury,
the
court
Id. at 719.
16
between
vaccinations
given
during
infancy
Inc.
Skevofilax,
v.
Skevofilax,
perhaps,
is
the
914
A.2d
See Aventis
113
paradigmatic
and
(Md.
example
2007).
of
case
563
(Md.
commitment,
1971).
person
Similarly,
suffering
when
seeking
mental
release
disorder
was
from
not
has
required
expert
testimony
concerning
whether
the
See
Conversely,
Craig
in
v.
Chenoweth,
Schweitzer
v.
194
Showell,
A.2d
78
Marylands
(Md.
1963).
intermediate
the
buckling
thereafter.
of
the
plaintiffs
knee
fourteen
months
decision
on
which
the
magistrate
judge
relied,
the
between
damages
to
the
concededly
as
well
as
the
eighteen-day
delay
between
the
contrast,
Id. at 61.
Galloways
crash
on
I-95,
involving
three
was
reasonably
likely
to
injure
those
involved.
For
that
he
injuries.
promptly
And,
Galloways
sought
unlike
herniated
medical
the
disc
soft
was
treatment
tissue
objectively
for
injury
his
in
back
Desua,
observable,
was
or
complained
of
back
pain,
immediately
thereafter,
but
who
was
injured
in
he
promptly
reported
his
Ultimately,
court
erred
as
matter
of
law
in
ruling
Because
that
expert
primary
contention
at
oral
argument
without
by
medical
entitled
the
magistrate
bills
to
alone,
recover,
judge
however,
belie
were
for
Hornes
harmless.
which
The
Galloway
assertion.
excluded
is
surely
Those
bills,
verdict,
and
therefore
were
not
harmless.
The
point
IV.
Pursuant to the foregoing, we vacate the judgment of the
district court and remand for a new trial on damages only.
We
20