Abernathy v Eastern Illinois Railroad Company

Filing 73

OPINION entered by Judge Sue E. Myerscough on 4/12/2018. The Defendant's Motion for Judgment as a Matter of Law Pursuant to Fed. R. Civ. Proc. 50(b) or Alternatively, Motion for New Trial Pursuant to Fed. R. Civ. Proc. 50(b) and 59, d/e 57 is DENIED. (SEE WRITTEN OPINION) (MAS, ilcd)

E-FILED

Friday, 13 April, 2018 04:47:10 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
MARVIN ABERNATHY,
Plaintiff,
-vsEASTERN ILLINOIS
RAILROAD COMPANY
Defendant.

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No. 15-cv-3223

OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
Commencing on January 16, 2018, this Court held a threeday jury trial on Plaintiff Marvin Abernathy’s claim against
Defendant Eastern Illinois Railroad Company under the Federal
Employers’ Liability Act (FELA). At the close of Plaintiff’s case,
Defendant moved for a directed verdict, which the Court denied.
On January 18, 2018, the jury returned a verdict finding both
Defendant and Plaintiff negligent and that their respective
negligence caused or contributed to Plaintiff’s injuries. The jury
found Plaintiff’s damages totaled $750,000 and that Plaintiff’s
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negligence caused 30% of the damages and Defendant’s negligence
caused 70% of the damages, for a net verdict of $525,000. The
Judgment was filed on January 22, 2018 (d/e 56).
On February 15, 2018, Defendant filed a Motion for Judgment
as a Matter of Law Pursuant to Fed. R. Civ. Proc. 50(b) or,
Alternatively, Motion for New Trial Pursuant to Fed. R. Civ. Proc.
50(b) and 59 (d/e 57). On April 10, 2018, the Court stayed
enforcement of the judgment. For the reasons that follow, the
Motion is DENIED.
I. FACTUAL BACKGROUND
The parties are familiar with the facts of the case. To
summarize the facts, Plaintiff worked as a track inspector for
Defendant for approximately 16 years. On September 13, 2012,
Plaintiff and another employee transported railroad ties over a
public roadway using a backhoe. While transporting the railroad
ties, the load shifted, and one or more ties spilled from the backhoe
onto Illinois Route 130. Plaintiff and his co-worker manually lifted
the ties off the roadway and placed them back on the backhoe.
Plaintiff claims he injured his back while manually lifting one of the
ties.
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Plaintiff testified that he preferred to use a piece of equipment
called a tie handler, also called a tie crane, to transport ties. A tie
handler runs on the railroad tracks, has a boom that can grab ties,
and has a cart to hold the ties. With a tie handler, a worker can
move ties all over the railroad without having to drive on public
roads. Plaintiff had previously operated the backhoe to transport
ties within the yard. Plaintiff testified, however, that he had never
before operated a backhoe down the road with a load like he had on
September 13, 2012. In the past, he had used the tie handler or
the transportation of the ties was outsourced.
Defendant’s tie handler was not operational on September 13,
2012, having stopped working approximately four years earlier.
The parties presented conflicting evidence on the extent to which
Defendant’s employees used the tie handler before it became
inoperable. Plaintiff testified he used the tie handler weekly when it
was operational. Plaintiff also testified that he repeatedly asked
Defendant’s general manager, Tim Allen, to repair or replace the tie
handler, but Defendant refused. Plaintiff told Allen how unsafe
their work was going to be without the tie handler, that it was a
safety issue, and that the tie handler needed to be fixed.
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Allen testified that it was not his call to repair or replace the
tie handler but that he did not want to do so because he thought
Plaintiff would abuse the tie handler and run it into the ground.
Everett Fletcher, Defendant’s president, testified the tie handler was
not repaired or replaced because it was seldom used and because of
the cost. Allen testified that Defendant hired out big projects and
used adequate equipment for smaller jobs. According to
Defendant’s witnesses, the backhoe or a pickup truck constituted
adequate equipment for transporting ties.
Plaintiff reported the September 13, 2012 accident to
Defendant and continued to work. Plaintiff testified that Allen
instructed the other employees to help Plaintiff do his job because
Plaintiff hurt his back. In addition, work slowed down over the
winter months and Plaintiff generally performed more minor work in
the winter.
Approximately 14 months after the accident, Plaintiff saw a
doctor about his back pain for the first time. In February 2016,
Plaintiff underwent surgical treatment whereby the surgeon
removed the disc at two levels, replaced the discs with a cage, and
put in screws that connected with rods in Plaintiff’s back.
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In February 2014, Defendant fired Plaintiff. After Plaintiff was
fired, Defendant purchased a new tie handler for the stated reason
that the Environmental Protection Agency made it mandatory for
Defendant to clean up the right-of-way.
Plaintiff testified that if he had not been hurt, he would have
retired at age 68 (he was 45 years old at trial). When he worked for
Defendant, Plaintiff earned $16.70 and generally worked 40 hours
per week. He also received paid vacation and benefits. Plaintiff
testified the injury changed every aspect of his life. He cannot sit
for a long period of time, play ball with his children, or take
vacations.
Plaintiff’s surgeon, Dr. Thomas Lee, testified that, while
Plaintiff’s prognosis was good for some additional improvement, he
did not anticipate that Plaintiff would return to the same level of
functioning he was at in September 2012. According to Dr. Lee,
Plaintiff could not return to employment at the same level he was
working before, which was heavy manual labor. Dr. Lee testified
that he believed, to a reasonable degree of medical certainty, that
the conditions for which he provided treatment to Plaintiff were

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caused by or contributed to be caused by the occurrence at work on
September 13, 2012.
II. MOTION FOR JUDGMENT AS A MATTER OF LAW
Defendant argues that the Court should enter judgment as a
matter of law because the jury did not have legally sufficient
evidence for its verdict.
Federal Rule of Civil Procedure 50(a) provides that, during
trial, a court may grant judgment as a matter of law if “a party has
been fully heard on an issue during a jury trial and the court finds
that a reasonable jury would not have a legally sufficient evidentiary
basis to find for the party on that issue.” Fed. R. Civ. P. 50(a). If
the Court denies the motion, the party may renew the motion after
entry of judgment on the verdict. Fed. R. Civ. P. 50(b).
When reviewing a motion for judgment as a matter of law
under Rule 50(b), this Court examines all the evidence in the record
and construes the facts strictly in favor of the non-moving
party. May v. Chrysler Grp., LLC, 716 F.3d 963, 971 (7th Cir.
2013). “That includes drawing all reasonable inferences in that
party’s favor and disregarding all evidence favorable to the moving
party that the jury is not required to believe.” Id. (also noting that
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the court does not make credibility determinations or weigh the
evidence). The motion should be granted only where no rational
jury could have found for the prevailing party. Tate v. Exec. Mgmt.
Serv., Inc., 546 F.3d 528, 532 (7th Cir. 2008).
Defendant seeks judgment as a matter of law on four grounds:
that Plaintiff did not present evidence sufficient for the jury to find:
(1) that Defendant had a duty to supply the tie handler; (2)
foreseeability; (3) causation; and (4) negligence with respect to the
manual lifting of the railroad tie.
Under the FELA, a railroad has a duty to provide its employees
with a safe workplace. Holbrook v. Norfolk S. Ry. Co., 414 F.3d
739, 741 (7th Cir. 2005); Darrough v. CSX Transp., Inc., 321 F.3d
674, 676 (7th Cir. 2003) (describing the duty as one to provide a
reasonably safe workplace). This duty includes ensuring that the
equipment the employees use is reasonably safe and suitable to the
tasks. See Jordan v. S. Ry. Co., 970 F.2d 1350, 1353 (4th Cir.
1992); Dukes v. Ill. Cent. R.R. Co., 934 F. Supp. 939, 945 (N.D. Ill.
1996). The railroad is not, however, required to furnish its
employees with the safest equipment. See Darrough, 321 F.3d at

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676 (providing that the railroad does not have to provide the safest
environment).
A plaintiff in an FELA case must prove all of the elements of
negligence against the employer—foreseeability, duty, breach, and
causation. Crompton v. BNSF RY. Co., 745 F.3d 292, 296 (7th Cir.
2014). However, Congress intended that the FELA provide broad,
remedial measures for railroad employees. Therefore, an “injured
railroad employer can recover under the FELA as long as the
employer’s negligence ‘played any part, even the slightest, in
producing the injury . . . for which damages are sought.’” Kulavic v.
Chi. & Ill. Midland Ry. Co., 1 F.3d 507, 512 (7th Cir. 1993) (quoting
Rogers v. Mo. Pac. R.R., 352 U.S. 500, 506 (1957)). Moreover, the
jury has “broad discretion to engage in common sense inferences
regarding issues of causation and fault.” Harbin v. Burlington N.
R.R. Co., 921 F.2d 129, 132 (7th Cir. 1990) (noting that numerous
FELA actions have been submitted to the jury based upon “evidence
scarcely more substantial than pigeon bone broth”); Crompton, 745
F.3d at 296 (referring to a “relaxed standard of causation”).
Defendant first argues that Plaintiff did not present evidence
from which the jury could find a duty to supply a tie handler.
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Defendant asserts that Plaintiff did not present evidence that he
was directed to use the backhoe or evidence that the methods
actually available or used—the backhoe and pickup truck—were
unsafe.
Defendant had a duty to provide a reasonably safe work
environment and provide reasonably safe equipment. Plaintiff
presented evidence that the backhoe and pickup trucks were not
reasonably safe and suitable to transport the ties over the public
roadway to the job site. Plaintiff, who worked for Defendant for
approximately 16 years, testified that he used the backhoe only to
move ties within the yard but not on the public roadway. He had
never before operated a backhoe on a public road with a load like he
had on September 13, 2012.
Plaintiff also testified that it was not the practice to use pickup
trucks to move ties. Defendant’s expert, Kendall Mulvaney, the
general superintendent of R & R General Contractors testified that

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he did not use pickup trucks to transport ties but typically used
flatbed trucks.1
Plaintiff testified that he regularly used the tie handler to move
ties when the tie handler was working. Once it became inoperable,
he repeatedly asked Defendant to repair or replace the tie handler.
Although Defendant’s witnesses testified that Plaintiff hardly ever
used the tie handler when it was working, they also testified that
Plaintiff misused the tie handler and “ran it into the ground,” which
suggests he did, in fact use it frequently. Plaintiff also presented
evidence that Defendant failed to maintain the tie handler, which
also led to its disrepair. The Court finds that the jury had evidence
from which the jury could find that neither the backhoe nor the
pickup truck were safe alternatives for moving the ties on the public
roadway on September 13, 2012.
Defendant also argues that Plaintiff failed to present evidence
that Defendant had notice of the condition that produced the
injury. Defendant asserts that FELA negligence requires

The Court also notes that Mulvaney testified that he sometimes used the
backhoe to transport ties and that the backhoe was an accepted method of
transportation.
1

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foreseeability that the “workplace method presented an anticipated
mishap-producing injury.” Def. Mem. at 5 (d/e 58).
“To establish that a railroad breached its duty to provide a safe
workplace, the plaintiff must show circumstances which a
reasonable person would foresee as creating a potential for harm.”
McGinn v. Burlington N. R.R. Co., 102 F.3d 295, 300 (7th Cir.
1996). To establish foreseeability, “a plaintiff must show that the
employer had actual or constructive notice of those harmful
circumstances.” Holbrook, 414 F.3d at 742. However, the plaintiff
does not have to show that defendant foresaw the particular
consequences of the negligent act. See Gallick v. Baltimore & O.R.
Co., 372 U.S. 108, 118 (1963) (holding that the FELA defendant
“need not foresee the particular consequences of his negligent acts;
assuming the existence of a threshold tort against the person, then
whatever damages flow from it are recoverable”); Williams v. N.E. Ill.
Regional Commuter R.R. Corp., No. 00 C 2250, 2002 WL 1433724,
at *6 (N.D. Ill. June 26, 2002) (noting that an FELA plaintiff “need
not show that a similar incident occurred on a previous occasion” to
establish foreseeability). Instead, a plaintiff must show

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“circumstances which a reasonable person would foresee as
creating a potential for harm.” McGinn, 102 F.3d at 300.
In this case, Defendant had notice that the tie handler was not
operational approximately four years before the injury. Plaintiff
testified that he repeatedly asked Allen to repair or replace the tie
handler. Plaintiff told Allen how unsafe their work was going to be
and that it was a safety issue that needed to be fixed. A reasonable
person could foresee that requiring that employees use a backhoe to
transport ties on a public roadway as opposed to using a tie handler
could result in the ties slipping off the backhoe and onto the public
road, thereby requiring the workers to manua1ly lift the ties back
onto the backhoe. See Gallick, 372 U.S. at 118 (finding reasonable
foreseeability of harm was met where the jury found the respondent
was negligent in maintaining a filthy pool of water; the petitioner
was bitten by an insect, the wound became infected, and both of
the petitioner’s legs were amputated).
Third, Defendant argues that the causation analysis requires
that Defendant’s negligence produced or contributed to produce the
injury. Defendant argues that the injury was not the result of a
defect in the backhoe and the transport of the tie did not provide
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“any contributing force to the injury.” Def. Mem. at 6. Instead,
according to Defendant, the manual lifting of the tie produced the
alleged injury. That is, the subsequent and independent act of
Plaintiff performing the manual lift caused the injury.
As noted above, and employee can recover under the FELA so
long as the employer’s negligence played any part in producing the
injury. Kulavic, 1 F.3d at 512. Moreover, the jury has broad
discretion to engage in common sense inferences regarding
causation. Harbin, 921 F.2d at 132.
Here, Plaintiff presented evidence that Defendant’s negligence
played a part in bringing about Plaintiff’s injury. Plaintiff
transported ties on a backhoe over a public roadway. He used the
backhoe because Defendant’s tie handler was broken and had not
been repaired or replaced for many years. One or more of the ties
fell off the backhoe. Plaintiff was injured lifting a tie to keep it from
obstructing the public roadway. The jury had a sufficient
evidentiary basis for concluding that Defendant’s negligence played
a part in Plaintiff’s injury.
Finally, Defendant argues that Plaintiff presented no evidence
that Defendant was negligent with respect to the manual lifting of
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the railroad tie on the roadway. However, Plaintiff claimed that
Defendant was negligent because, if the tie handler had been
available, he would not have had to lift this tie to keep it from
obstructing the public roadway because it would not have fallen on
the public roadway.
For all of these reasons, Defendant’s motion for judgment
notwithstanding the verdict is denied.
III. MOTION FOR A NEW TRIAL
Defendant also argues that the Court should order a new trial
because the trial evidence did not support a verdict absent the
wrongfully admitted/allowed evidence.
The Court may grant a new trial where the verdict is against
the manifest weight of the evidence, the damages are excessive, or
the trial was unfair to the moving party. Kapelanski v. Johnson,
390 F.3d 525, 530 (7th Cir. 2004). The Court views the evidence in
the light most favorable to the prevailing party. Id. “A new trial
should be granted only when the record shows that the jury’s
verdict resulted in a miscarriage of justice or where the verdict, on
the record, cries out to be overturned or shocks our conscience.”

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Davis v. Wis. Dep’t of Corr., 445 F.3d 971, 979 (7th Cir. 2006)
(internal quotes and citation omitted).
Defendant first argues that a new trial is warranted because of
the admission of the tie handler evidence. Defendant asserts that
the tie handler evidence was not legally sufficient to prove that the
equipment provided—the backhoe and the pickup truck—was
unsafe. Defendant asserts that the admission of the tie handler
evidence, including the evidence related to feasibility, confused the
jury, was unfairly prejudicial, and resulted in a verdict based on a
legally insufficient basis.
Proof of a safer alternative is not necessarily proof of
negligence. Taylor v. Ill. Cent. R.R. Co., 8 F.3d 584, 586 (7th Cir.
1993). A defendant can provide a safe workplace even if safer
workplace alternatives exist. Id. However, evidence of safer
alternatives can be relevant depending on the circumstances. See
Edsall v. CSX Transp. Inc., No. 1:06-CV-389, 2007 WL 4608788, at
*5 (N.D. Ind. Dec. 28, 2007) (finding evidence of an alternative
method was relevant to whether the employer provided a reasonably
safe workplace under the circumstances). For instance, evidence of
an alternative method may be relevant if there is a dispute whether
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the employer required the use of a particular method. In such a
case, evidence of an alternative method is relevant to whether the
method used was reasonable. See Stone v. New York C., & St. L.R.
Co., 344 U.S. 407, 409 (1953 (“Whether the straw boss in light of
the risks should have used another or different method to remove
the tie or failing to do so was culpable is the issue.”); see also
Williams, 2002 WL 1433724, at *9 (testimony of safer alternatives is
properly excluded only when it is determined that the railroad
exercised reasonable care). A jury can infer negligence from an
employer’s failure to employ a different method or take additional
precautions to ensure its employee’s safety. Harbin, 921 F.2d at
132 (finding that “a jury could reasonably conclude that the
Railroad’s failure to employ a different boiler cleaning method or
take additional precautions to ensure the safety of its employees
was negligent” where there was evidence that the plaintiff was told
what process to use, the process caused so much soot that the
mouth guards supplied by the defendant turned black, employees
made repeated complaints of inadequate ventilation, and the
defendant did not rectify the problem),

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Here, as noted above, Plaintiff presented evidence from which
the jury could find that use of the backhoe or pickup truck to
transport ties on the public road was not reasonable. Plaintiff also
presented evidence from which the jury could infer that the tie
handler was the appropriate equipment for the specific task.
Moreover, evidence of the subsequent purchase of the tie handler
was relevant on the issue of feasibility and to impeach Defendant
for the multiple explanations for why it did not replace the tie
handler earlier.
Defendant next argues that Plaintiff improperly engaged in
recurrent, argumentative cross-examination/adverse examination
of Everett Fletcher and Tim Allen. Defendant asserts that Plaintiff’s
questioning assumed a duty to supply a tie handler and suggested
that any manual lifting was unsafe if automation was available.
The Court has reviewed the testimony of Fletcher and Allen and
affirms the Court’s rulings on objections made during the trial. The
Court does not find that Plaintiff engaged in any improper
examination of Fletcher and Allen.
Defendant argues that the Court erred by admitting evidence
of the parent/subsidiary relationship between Archers Daniel
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Midland Company (ADM) and Defendant. Prior to trial, Defendant
filed a motion in limine seeking to bar any testimony or reference
that Defendant was owned in whole or in part by ADM. In response
to the Motion, Plaintiff indicated that he did not anticipate a need to
refer to ADM so long as Fletcher could testify that he was in charge
of Defendant’s operations without referring to ADM. The Court
granted the motion in limine.
At trial, Defendant called its expert, Mulvaney to testify that
the backhoe constituted proper equipment for the task. After
Mulvaney testified on direct, Plaintiff asked the Court, at a sidebar,
for permission to ask the expert about ADM being R & R’s biggest
client. Plaintiff’s counsel claimed he did not know that Defendant
was going to call Mulvaney and that Mulvaney testified at his
deposition that ADM was his biggest client. (Mulvaney was listed
on Defendant’s witness list). The Court allowed the question.
Fletcher subsequently testified that Defendant was a subsidiary of
ADM.
Defendant now contends that the Court erred by admitting
evidence that Defendant was a subsidiary of ADM because Plaintiff
waived or forfeited the issue by not raising it in response to
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Defendant’s motion in limine. Defendant also objects because
Defendant was denied the opportunity to ask the venire about ADM
during jury selection and the identification of ADM inferred wealth
regarding the feasibility of repairing or replacing the tie handler.
The Court finds that the evidence was admissible on the issue
of the bias of Defendant’s expert. Moreover, even if admission of the
evidence were error, any error was harmless. See E.E.O.C. v.
Mgmt. Hospitality of Racine, Inc., 666 F.3d 422, 440 (7th Cir.
2012); Fed. R. Civ. P. 61 (providing that, unless justice requires, no
error in admitting evidence is ground for granting a new trial and
that the court must disregard all errors that do not affect a party’s
substantial rights). The testimony was very short. In addition,
Defendant elicited testimony that Defendant operated on its own
balance sheet, that its profit and loss was based wholly on its own
operations, and that budget considerations influenced all purchase
and hiring decisions of the railroad. While Defendant did not get to
question the voir dire about ADM during jury selection, neither did
Plaintiff. The Court finds a new trial is not warranted on this basis.
Defendant next challenges Plaintiff’s examination of Allen
regarding an incident when Allen overloaded a Defendant pickup
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truck for railroad tie transportation for a personal purpose.
Defendant argues that the evidence did not tend to show that the
use of the pickup truck to transport ties was unsafe because the
circumstances were not similar. Defendant contends that a pickup
truck was available to transport the ties and that Plaintiff presented
no evidence that a pickup truck was unsafe for the transport of ties.
The evidence was relevant because Defendant presented Allen
as a witness who was qualified to testify that a pickup truck was an
acceptable and safe method of transporting ties. Evidence that he
did not know or disregarded the load capacity of the pickup truck
was relevant to the weight of his testimony. Moreover, Defendant
elicited testimony before the jury that the ties Plaintiff transported
weighed less than the load capacity of the pickup truck. Therefore,
the Court finds that a new trial is not warranted on this basis.
Finally, Defendant argues that the verdict was against the
manifest weight of the evidence in two respects: (1) the allocation of
negligence between Plaintiff and Defendant and (2) the award of
$750,000 in gross damages.
The Court finds that evidence supports the jury’s verdict on
the allocation of negligence between Plaintiff and Defendant. The
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jury heard testimony from which the jury could find that neither the
backhoe or pickup truck were the appropriate method of
transporting the ties in this particular circumstance. The jury also
heard testimony that Defendant failed to repair or replace the tie
handler despite repeated requests by Plaintiff. In addition, the jury
heard testimony that Plaintiff was responsible for loading and
driving the backhoe and could have reasonably inferred that
Plaintiff bore some responsibility for his injury. Therefore, the
allocation of negligence was not against the manifest weight of the
evidence.
As for the amount in damages, a court will vacate a jury’s
award on the basis of excessiveness only where the award is
“monstrously excessive” or has “no rational connection to the
evidence.” DeBiasio v. Ill. Cent. R.R., 52 F.3d 678, 686 (7th Cir.
1995) (citations and internal quotation marks omitted). Here,
Plaintiff sought $1.5 million, consisting of past wages of $123,580,
future lost wages of at least $792,248, past benefits of $11,492,
future lost benefits of at least $75,895, and unspecified damages for
physical pain, mental/emotional pain and suffering, and
disability/loss of a normal life. The jury heard evidence that
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supported these figures and concluded that Plaintiff suffered
damages in the total amount of $750,000. The Court finds the
award is not monstrously excessive and that there is a rational
connection to the evidence. Therefore, a new trial is not warranted
on this basis.
IV. CONCLUSION
For the reasons stated, Defendant’s Motion for Judgment as a
Matter of Law Pursuant to Fed. R. Civ. Proc. 50(b) or, Alternatively,
Motion for New Trial Pursuant to Fed. R Civ. Proc. 50(b) and 59 (d/e
57) is DENIED.
ENTERED: April 12, 2018
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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