Huckaba v. CSX Transportation Inc.

Filing 78

ORDER: Defendant's Renewed Motion for Judgment as a Matter of Law or, alternatively, for a New Trial (Doc. 70) is DENIED. Signed by Judge Staci M. Yandle on 2/17/15. (cmh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF ILLINOIS
STEVEN R. HUCKABA,
Plaintiff,
v.
CSX TRANSPORTATION, INC.,
Defendant.

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No. 3:13-cv-0586-SMY-PMF

MEMORANDUM AND ORDER
This matter is before the Court on CSX Transportation, Inc.’s Renewed Motion for
Judgment as a Matter of Law or in the Alternative, Motion for New Trial. (Doc. 70). Plaintiff
filed a one count Complaint under FELA on June 18, 2013. (Doc. 2). An eight-member jury
was impaneled, and a three day jury trial occurred October 20, 2014 through October 22, 2014.
On October 22, 2014, the jury returned a unanimous verdict in favor of Plaintiff in the amount of
$355,000.00 which was reduced by 33% for comparative fault. Judgment was entered on the
verdict on October 29, 2014. Defendant has filed a Motion for Judgment as a Matter of Law or
in the Alternative, Motion for New Trial, (Doc. 70) and Plaintiff filed a response in opposition to
the motion. (Doc. 72).
Judgment as a matter of law may be entered where “there is no legally sufficient
evidentiary basis for a reasonable jury to find for [a] party on [an] issue.” Fed.R.Civ.P. 50. The
Court must, after reviewing the record and drawing all reasonable inferences in the light most
favorable to Plaintiff, determine whether the verdict is supported by sufficient evidence.
Kossman v. Ne. Illinois Reg'l Commuter R.R. Corp., 211 F.3d 1031, 1036 (7th Cir. 2000). In
determining whether the evidence presented at trial is sufficient to withstand a motion for
judgment as a matter of law, the district court is not free to weigh the parties' evidence or to pass
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on the credibility of witnesses or to substitute its judgment of the facts for that of the jury. Rivera
v. Nash, 1997 WL 570760, at *1 (N.D. Ill. Sept. 9, 1997). The Court will not overturn a jury's
verdict “[a]s long as there is a reasonable basis in the record to support it.” Robinson v.
Burlington Northern R.R., 131 F.3d 648, 656 (7th Cir.1997). “A trial court should overturn a
verdict only where the evidence supports but one conclusion—the conclusion not drawn by the
jury.” Ryl–Kuchar v. Care Centers, Inc., 565 F.3d 1027, 1030 (7th Cir.2009). This is obviously a
difficult standard to meet. A jury verdict can be set aside “[o]nly when there is a complete
absence of probative facts to support the conclusion reached ....” Harbin v. Burlington Northern
R. Co., 921 F.2d 129, 131 (7th Cir.1990).
Defendant asserts that it is entitled to judgment as a matter of law for a number of
reasons: (1) there was no evidence that Plaintiff’s injury was caused by its negligence; (2) there
is no evidence that Defendant breached its duty to provide a reasonably safe workplace; (3) there
is no evidence that Plaintiff’s injury was foreseeable; and (4) Plaintiff is not entitled to lost
wages past the date of his voluntary retirement on August 31, 2011.
FELA provides a federal tort remedy for railroad employees injured on the job. See
Williams v. Nat’l R. Passenger Corp., 161 F.3d 1059, 1061 (7th Cir.1998). Unlike worker's
compensation statutes, FELA requires plaintiffs to prove negligence. See id. However, the
Supreme Court has held that the negligence standard is relaxed in FELA cases and a plaintiff, in
order to get his case to the jury, need only produce evidence which demonstrates that the
“‘employer['s] negligence played any part, even the slightest, in producing the injury.’”
Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 543 (1994). A plaintiff, therefore, carries a
lighter burden in a FELA action than in an ordinary negligence case. See Harbin v. Burlington
Northern Ry. Co., 921 F.2d 129, 132 (7th Cir.1990) (noting examples of FELA actions submitted

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to jury based only upon “evidence scarcely more substantial than pigeon bone broth”).
Furthermore, courts “have interpreted [FELA] liberally in light of its humanitarian purposes.”
Williams, 161 F.3d at 1061.
Defendant argues that no evidence was offered that a three man lift of the generator was
unsafe. However, in his Order Denying Defendant’s Motion for Summary Judgment, Judge
Regan held that;
Plaintiff’s testimony that he thought three men would be enough to lift the
generator, that he believed a three-man lift was safe, or that he did not believe he
needed mechanical assistance when they made the plan to lift the generator, does
not render CSX’s conduct non-negligent. Plaintiff’s beliefs do not equate to the
legal standard under FELA or set the bar for satisfying CSX’s duty under FELA.
“Circumstantial evidence is sufficient to establish FELA liability, and … a jury can make
reasonable inferences based on that circumstantial evidence even where conflicting inferences
are also appropriate and no direct evidence establishes which inference is correct.” Lynch v. Ne.
Reg'l Commuter R.R. Corp., 700 F.3d 906, 917 (7th Cir. 2012).
In the case at bar, Plaintiff provided evidence at trial that Defendant sent employee
Wineinger to the Marshall facility to pick up a generator. (Wineinger Depo, p. 20). Wineinger
drove to the Marshall facility in one of Defendant’s trucks to pick up the generator. (Id., pp. 2122). Plaintiff and Tony Ogle, a backhoe operator, were the only other employees at the Marshall
facility when Wineinger arrived to pick up the generator. (Ogle Depo., p. 9).
The generator weighed 225 pounds and was the largest that Plaintiff used while working
for Defendant, and Defendant’s investigation concluded it was heavier than most generators it
used. (Pl. Ex. 4, p. 8). Although Defendant owned and used other types of generators, the 225
pound generator at issue was the only generator available. (Wineinger Depo., pp. 20-21). The
bed of Defendant’s high rail truck was almost three feet off the ground. (Pl. Ex. 4, p.8). Despite

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the height of the truck’s bed and the generator’s size and weight, Defendant did not provide any
equipment to help get the generator into the truck. Such devices were available, but apparently
not at Marshall. In addition, the high rail truck did not have a lift, pole, or other equipment to lift
the generator. (Wineinger, p. 22-24, p. 31 and Ogle, pp. 27-29). Defendant’s own investigative
team later used a knuckle boom to load the generator into the actual vehicle used on the day in
question. (Ex. 4, p. 8). As a result of the lack of mechanical assistance, Defendant required
Plaintiff, Wineinger, and Ogle to lift the generator into the high rail vehicle. Plaintiff testified
that he did not lift generators on a regular basis. Defendant provided Plaintiff no information
concerning the weight of the generator. (Ogle,3, p. 25 and Wineinger, p. 27).
The record and reasonable inferences allowed the jury to reasonably conclude that the
Defendant was negligent in failing to provide equipment to move the generator, in requiring
Plaintiff to manually lift the generator, in failing to instruct Plaintiff on how to lift a 225 pound
generator, in failing to warn Plaintiff of the weight of the generator, and in failing to provide a
reasonably safe place to work in those various ways. See Heater v. Chesapeake & O. Ry. Co.,
497 F.2d 1243, 1247 (7th Cir. 1974) (jury could reasonably find the railroad was negligent in
“failing to use a mechanical crane or, at least, in failing to assign more men to the task.”). Under
established standards, there was sufficient evidence presented at trial to permit the jury to reach
the conclusion it did on these issues.
The next issue is whether there was sufficient evidence for the jury to conclude that the
injury was foreseeable. “Where the tortfeasor is liable for death or injuries in producing which
his negligence played any part, even the slightest, such a tortfeasor must compensate his victim
for even the improbable or unexpectedly severe consequences of his wrongful act.” Gallick v.
Baltimore & O. R. Co., 372 U.S. 108, 120-21 (1963). A railroad defendant owes a duty to act

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reasonably not only given the existing conditions, but anticipated conditions as well. McDonald
v. Northeast Illinois Regional, 249 F.Supp.1051, 1055 (N.D.Ill. 2003).
In this case, there is sufficient evidence to support an inference of foreseeability.
Defendant was aware of the bad weather on February 3, 2011, resulting from the severe ice and
snow storm which had swept through the area prior to the incident. (Mathews Depo., pp. 14- 16).
With power outages, it was foreseeable that generators would be needed. At the time of the
incident, Defendant knew that the only employees at the Marshall facility were Plaintiff and
Tony Ogle. (Ogle, p. 9). Defendant owned other generators, but the only one available at
Marshall at the time in question was new, had never been lifted by Plaintiff or the other workers,
and was heavier than most generators. (Wineinger, pp. 20-21 & Mathews, pp. 21-22). Defendant
provided Wineinger the truck with the 35-inch high bed to get the generator. (Exhibit 4 &
Wineinger, pp. 23-24). Defendant did not provide equipment to move the generator from the
ground to the bed of Wineinger’s truck even though it knew ahead of time that generators would
be needed and that such mechanical lifts could be provided. (Wineinger, p. 22, p. 31 and Ogle,
pp. 27-29).
Without mechanical assistance, it was certainly foreseeable that the only men present to
assist Wineinger were Ogle and Plaintiff. (Ogle, pp. 43-44,Wineinger, pp. 6-7, p. 26 & Exhibit
4). Further circumstantial evidence of foreseeability was Defendant’s own safety rules and
instructions regarding lifting. Defendant offered programs explaining how to lift safely.
(Wineinger, pp. 32-33). The programs discussed proper lifting techniques. (Wineinger, pp. 3233). Moreover, the programs instructed its workers to use a lift or hoist if available. (Wineinger,
p. 33). A reasonable jury could therefore infer from the evidence that the injury to Plaintiff was
reasonably foreseeable.

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Defendant also asserts that it is entitled to judgment as a matter of law on the issue of
post retirement wage loss. The seminal case regarding the collateral source rule in the context of
FELA is Eichel v. New York Cent. R. Co., 375 U.S. 253 (1963). In that case, the plaintiff alleged
that he sustained permanent and disabling injuries as a result of his employer's negligence. The
employer attempted to introduce evidence that the plaintiff was receiving disability pension
payments under the Railroad Retirement Act of 1937. Id. at 253. The Supreme Court reasoned
that the disability pension benefits could not be used to offset or mitigate the employer's
damages. Id. The Supreme Court rejected the argument that the evidence should have been
admitted to show the plaintiff's motive for not returning to work:
In our view the likelihood of misuse by the jury clearly outweighs the value of
this evidence. Insofar as the evidence bears on the issue of malingering, there will
generally be other evidence having more probative value and involving less
likelihood of prejudice than the receipt of a disability pension.

Id. at 255. Courts from other jurisdictions have held that such evidence is inadmissible. One
case on point is Lee v. Consolidated Rail Corp., 1995 WL 734108 (E.D.Pa. December 5, 1995).
In that case, the plaintiff was injured in the course of his employment with Conrail. Conrail
attempted to introduce evidence that under the Railroad Retirement Board's early retirement
policy, the plaintiff would have been entitled to retire at age 62 with full benefits. Id. at *4. The
Court reasoned that under Eichel and its progeny, evidence of collateral source benefits “must be
categorically excluded.” Id. at *4. Moreover, “any evidence that demonstrates alternative sources
of compensation is inadmissible when a jury may use it to offset the plaintiff's damages.” Id. at
*4.
In Page v. St. Louis Southwestern Ry. Co., 349 F.2d 820 (5th Cir.1965), the defendant
presented evidence that the injured plaintiff was currently receiving retirement benefits under the

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Railroad Retirement Act. Id. at 821. While the plaintiff claimed that he was not working as a
result of the injury, the defendant argued he was simply malingering and would have retired even
though no injury had occurred. Id. at 820-821. The Fifth Circuit Court of Appeals held that
introducing such evidence was reversible error:
[W]e think there is no substantial basis for distinguishing this case from Eichel
and Tipton .... Both Tipton and Eichel reflect a strong policy against the use of
such collateral source evidence in FELA and analogous Jones Act-maritime law
seamen's cases. With the whole result in our case being the enigma wrapped in the
mystery of a general verdict concealing forevermore the use or uses to which the
jury might have put this evidence, we cannot say that the error, preserved by
emphatic and timely objection, was harmless.

Id. at 822.
Finally, in Brumley v. Fed. Barge Lines, Inc., 396 N.E.2d 1333, 1335 (1979), the trial
court excluded all evidence regarding “pension, retirement, and social security benefits plaintiff
was to receive upon retirement.” Id. at 1339. The defendant had argued that such evidence was
relevant to the plaintiff's future earning capacity, and probative of the plaintiff's motivation to
continue working beyond age 65. Id. The Appellate Court of Illinois held that the trial court
committed no error:
The same policy considerations that warrant the exclusion of disability benefits
apply equally to the same controversy. The possibility of prejudice resulting from
the admission of social security and retirement benefits is readily apparent. The
jury could easily confuse the purpose for which such evidence was admitted....
Accordingly, the broadly based Federal policy expressed in Eichel and Tipton
precluding the admission of collateral benefits in Jones Act and F.E.L.A. cases is
controlling.

Id. at 1340. In the case at bar, Plaintiff’s receipt of collateral source benefits were properly
excluded. Additionally, there was sufficient evidence adduced from which the jury could

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reasonably conclude that Plaintiff decided to retire as a result of his injury. Accordingly,
Defendant’s Motion for Judgment as a Matter of Law is DENIED.
The Court next turns to Defendant’s alternative motion for new trial. Defendant's
alternative motion for a new trial is governed by Fed.R.Civ.P. 59(a). “Courts do not grant new
trials unless it is reasonably clear that prejudicial error has crept into the record or that substantial
justice has not been done, and the burden of showing harmful error rests on the party seeking the
new trial.” Federal Practice and Procedure § 2803, p. 46. A new trial may be granted “if ‘the
verdict is against the weight of the evidence, the damages are excessive, or if for other reasons
the trial was not fair to the moving party.’ ” Frizzell v. Szabo, 647 F.3d 698, 702 (7th Cir.2011),
quoting McNabola v. Chicago Transit Auth., 10 F.3d 501, 516 (7th Cir.1993). “[T]he court must
disregard all errors and defects that do not affect any party's substantial rights.” Fed. R. Civ. P.
61. While the district court has the power to grant a new trial on weight of the evidence
grounds, such power is not unlimited. To do so, a jury's verdict must be against the “manifest
weight of the evidence,” which encompasses deference to the jury's conclusions by balancing “a
decent respect for the collective wisdom of the jury against a duty not to approve miscarriages of
justice.” Mejia v. Cook County, 650 F.3d 631, 633 n. 1 (7th Cir.2011). The Court has already
found that there was sufficient evidence for a reasonable jury to decide the way it did.
Accordingly, it will limit the remainder of its analysis to the issues of prejudicial error presented
by Defendant.
Defendant argues that the Court erred in allowing evidence of subsequent remedial
measures; in admitting evidence that a mechanical lift or use of additional workers would have
been safer; in refusing to instruct the jury on apportionment of damages; in instructing the jury
on assumption of the risk; in sustaining Plaintiff’s objection to cardiologist records; in permitting

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Plaintiff’s expert on lost wages to testify to opinions not disclosed until trial; and in ruling that
Plaintiff’s receipt of retirement benefits was inadmissible.
Federal Rule of Evidence 407 states:
When measures are taken that would have made an earlier injury or harm less
likely to occur, evidence of the subsequent measures is not admissible to prove:
• negligence;
• culpable conduct;
• a defect in a product or its design; or
• a need for a warning or instruction.
But the court may admit this evidence for another purpose, such as impeachment
or--if disputed--proving ownership, control, or the feasibility of precautionary
measures.
The Rule specifically states that it applies “when measures are taken.” In this case, there was no
evidence presented that any of the suggested corrective measures were implemented, and
Defendant has provided no support for its assertion that the Rule operates to exclude such
evidence where corrective measures were not in fact taken. The note to Rule 407 states that the
policy for excluding this sort of evidence:
rests on a social policy of encouraging people to take, or at least not discouraging
them from taking, steps in furtherance of added safety. The courts have applied
this principle to exclude evidence of subsequent repairs, installation of safety
devices, changes in company rules, and discharge of employees, and the language
of the present rule is broad enough to encompass all of them.
Where no remedial measures were actually implemented, the policy behind the Rule does not
apply. Furthermore, the purpose for which the evidence was admitted was not a prohibited
purpose. Rather, it was admitted for the purpose of impeachment and to show the feasibility of
precautionary measures. Finally, even if the Court erred in admitting the evidence, Defendant
has the burden of demonstrating prejudice, as well as error. Palmer v. Hoffman, 318 U.S. 109,
116 (1943).

Here, Defendant has only made the statement that it was prejudiced without

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providing any support for its assertion. Therefore, there are no grounds for a new trial as to this
issue.
Defendant’s next argument is that the Court erred in in admitting evidence that a
mechanical lift or use of additional workers would have been safer. While, under FELA, the
railroad is required to implement a reasonably safe method of work and not the best method
under Stillman v. Norfolk W. Ry., 811 F.2d 834, 838 (4th Cir. 1987), evidence that safer methods
exist is not necessarily precluded. In Stillman, the plaintiff appealed and argued that the court
committed error in excluding testimony concerning the use of a crane to install gears. Id. The
appellate court noted that the district court had discretion to exclude evidence regarding the use
of cranes to install gears, and any error was harmless because the plaintiff had introduced
“essentially all of the testimony concerning the alternative gear installation method that he
wished to offer.” Id. Additionally, in Sloas v. CSX Transportation, 616 F.3d 380 (4th Cir.
2010), CSX introduced evidence that the plaintiff was contributorily negligent in failing to use
available mechanical means to complete a task. It was held that such evidence was properly
admitted to help establish that the plaintiff failed to appropriately utilize the safest means. Id.
Therefore, evidence of safer mechanical means to complete a task is admissible and relevant.
Similarly, evidence that additional employees should have been utilized to lift the
generator was also properly admitted. In Heater v. Chesapeake & O Ry. Co., 497 F.2d 1243 (7th
Cir. 1974), the court held that a reasonable jury could have inferred, based on proffered evidence
that additional manpower or the use of mechanical means would have made a task safer, “that
the railroad was negligent in failing to use a mechanical crane, or, at least, in failing to assign
more men to the task.” Id. In the case at bar, the admission of similar evidence was not in error.

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Defendant argues that such evidence could only distract the jury, but it again fails to establish
that there was any prejudice. Therefore, this argument for a new trial fails, as well.
Defendant’s next allegation of error is in the Court refusing to instruct the jury on
apportionment of damages given Plaintiff’s pre-existing medical conditions. To win a new trial
based on an erroneous jury instruction, Defendant must show that the instructions did not
adequately state Seventh Circuit law and it was prejudiced by the error because the jury was
likely confused or misled. Susan Wakeen Doll Co. v. Ashton Drake Galleries, 272 F.3d 441, 452
(7th Cir. 2001). In this case, pattern instruction 9.04 was given to the jury. This instruction is
tailored to address cases involving FELA and states that a plaintiff may recover for “loss of
normal life including any aggravation of a pre-existing condition . . .” This instruction is
sufficient to inform the jury of the applicable law, namely that aggravation of a pre-existing
condition is compensable. The non-pattern instructions submitted be Defendant and refused by
the Court did not properly state the law of the Seventh Circuit, whereas the pattern jury
instruction did accurately and succinctly inform the jury of the law.
Similarly, there was no error or prejudice in instructing the jury on assumption of the
risk. Evidence presented at the trial, specifically in the testimony of Roy Matthews, did invite
the jury to infer that Plaintiff assumed the risk of lifting the generator. Therefore, the giving of
an assumption of the risk instruction was appropriate in order to correct a misimpression. See
Green v. Union Pacific R.R. Co., 647 N.E.2d 1092, 1099 (Ill. App. Ct. 1995).
Further, the Court did not err in sustaining Plaintiff’s objection to cardiologist records
from Dr. Ramesh Shatagopam or failing to allow cross examination of the Plaintiff regarding
those records. While the reason for Plaintiff’s retirement was disputed at trial, no evidence was
presented that the cardiologist records were connected to Plaintiff’s injuries. Further, Defendant

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did not depose or call Dr. Shatagopam to testify at trial. Defendant also did not present any
evidence that Dr. Shatagopam placed any restrictions on Plaintiff. Under those circumstances,
introducing the cardiology records could only have served to confuse and mislead the jury.
Accordingly, Defendant has not shown error or prejudice.
Finally, the Court did not err by permitting Plaintiff’s expert on lost wages to offer new
opinions at trial. Expert reports that are not disclosed must be excluded unless the proponent of
the evidence can show that the failure to timely disclose was either justified or harmless.
NutraSweet Co. v. X-L Engineering Co., 227 F.3d 776, 785 (7th Cir. 2000). In this case,
Defendant was aware from the expert’s deposition that her wage loss figure would be adjusted
after Plaintiff’s tax returns were made available. Plaintiff’s tax returns were also disclosed prior
to trial. Further, the Defendant had the opportunity to cross examine Plaintiff’s expert regarding
her adjusted figure, and it also had the opportunity to obtain its own expert. Because the expert
made it clear that her figures would be adjusted after the tax returns were available, her
methodology was explained to Defendant and the tax returns were made available, the testimony
regarding the adjusted figures was properly admitted.
For the reasons set forth above, Defendant's Renewed Motion for Judgment as a Matter
of Law or, alternatively, for a New Trial is DENIED.

IT IS SO ORDERED.
DATED: February 17, 2015

s/ Staci M. Yandle
STACI M. YANDLE
DISTRICT JUDGE

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