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Taylor v. Cottrell, Inc.

United States Court of Appeals, Eighth Circuit

July 29, 2015

Timmy A. Taylor; Deborah Taylor, Plaintiffs - Appellants
Cottrell, INC.; Auto Handling Corp., Defendants - Appellees

Submitted April 16, 2015

Appeal from United States District Court for the Eastern District of Missouri - St. Louis.

For Timmy A. Taylor, Deborah Taylor, Plaintiffs - Appellants: Charles Armbruster III, Michael Todd Blotevogel, Roy C. Dripps, Armbruster & Dripps, Alton, IL; Brian M. Wendler, Wendler Law, Edwardsville, IL.

For Cottrell, INC., Defendant - Appellee: Daniel Carpenter, Amy Lorenz-Moser, Jeffery Thomas McPherson, Thomas Blumeyer Weaver, Armstrong & Teasdale, Saint Louis, MO.

For Auto Handling Corp., Defendant - Appellee: William Francis Logan, Paul Leslie Wickens, Foland & Wickens, Kansas City, MO.

Before BYE and SMITH, Circuit Judges, and SCHILTZ,[1] District Judge.


BYE, Circuit Judge.

Timmy A. Taylor (" Taylor" ) and Deborah Taylor brought this action to recover damages resulting from injuries Taylor sustained in two incidents involving a Cottrell, Inc. (" Cottrell" ) truck trailer. Upon Cottrell's motion in limine, the district court excluded one of Taylor's expert witnesses, finding the doctor had entered into an impermissible contingent-fee agreement which completely undermined any testimony he might offer. The district court then found Taylor lacked sufficient evidence to create a triable issue on his neck and back injury claims without an expert opinion on damages and causation, entered summary judgment on those claims in favor of Cottrell, and stayed the remaining claims. We conclude the district court erred in excluding Taylor's expert witness and reverse.


On October 1, 2007, Taylor was injured while attempting to secure a vehicle on a Cottrell car-hauling trailer. He underwent medical care for his injuries, which eventually led him to Dr. James M. Odor for a surgical consultation. After an examination, Dr. Odor advised Taylor that the best chance for improvement was through surgery. On February 21, 2008, Dr. Odor operated on Taylor to complete a two-level cervical fusion. After an unsuccessful " trial program" to return to work and some further treatment, on November 6, 2009, Taylor returned to work full-time without restrictions.

On January 12, 2010, Taylor was again injured when he fell approximately ten feet from a Cottrell trailer. He was taken to the emergency room, where he underwent x-rays and a CT scan. He was eventually discharged home with some pain medication. The same month, Taylor reported to Dr. Odor with neck and back pain. After testing, Dr. Odor observed several disc protrusions and a disc desiccation. These injuries led to another complex spinal surgery with Dr. Odor in September 2012, the cost of which exceeded $450,000.

Meanwhile, Taylor commenced this action in state court on April 3, 2009, which Cottrell timely removed to federal court based on diversity jurisdiction. After Taylor suffered the second injury and underwent more treatment, he amended his claims. While the litigation spanned over several years, the relevant events for the issues currently in dispute on appeal occurred in the span of a few months and relate to the district court's exclusion of Taylor's treating physician and expert witness (Dr. Odor) and the district court's grant of summary judgment on some claims in favor of Cottrell.

On August 9, 2013, two weeks before trial was scheduled to begin, Cottrell moved for a trial continuance, asserting it had recently uncovered copies of agreements between Taylor's counsel and Dr. Odor which evidenced an impermissible contingent-fee agreement. After a hearing on August 14, the district court granted the motion and permitted additional discovery. On December 27, 2013, Cottrell filed a motion to strike Dr. Odor's testimony, for sanctions related to the alleged failure to disclose the contingent-fee agreements, and to dismiss the entire case for fraud on the court. In its order granting Cottrell's motion to strike, the district court explained it was " dismayed at the events detailed in [the] Motion" and found there was a contingency agreement--not merely a lien on any proceeds from the litigation--which undermined Dr. Odor's interest in the case so much that the " best course of action [was] to exclude the testimony of Dr. Odor as an expert witness." Taylor v. Cottrell, No. 4:09-cv-00536-HEA, Dkt. No. 351, *6 (E.D. Mo. Feb. 4, 2014). Cottrell then filed a motion to bar evidence of Taylor's damages based on the testimony of Dr. Odor or dismiss the neck and low back claims that depended on his testimony. The district court granted the motion, barring any testimony from Dr. Odor and dismissing the claims for Taylor's neck and back injuries. The district court then granted permission to file an ...

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