Davis v. CSX Corporation, Inc.
Filing
142
MEMORANDUM OPINION AND ORDER CONFIRMING PRONOUNCED ORDER OF THE COURT GRANTING IN PART AND DENYING IN PART DEFENDANTS MOTION IN LIMINE TO PROHIBIT INTRODUCTION OF EVIDENCE OF DAMAGES NOT AVAILABLE 119 AND DENYING AS MOOT DEFENDANTS MOTION FOR EXPEDITED RULING 127 . Signed by Senior Judge Frederick P. Stamp, Jr on 1/10/2012. (Copy counsel of record via CM/ECF)(jmm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
BETTY JO DAVIS, individually
and as Executrix of the
Estate of VICTOR C. DAVIS,
Plaintiff,
v.
Civil Action No. 1:10CV74
(STAMP)
CSX TRANSPORTATION, INC.,
Defendant.
MEMORANDUM OPINION AND ORDER
CONFIRMING PRONOUNCED ORDER OF THE COURT
GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION IN LIMINE TO PROHIBIT
INTRODUCTION OF EVIDENCE OF DAMAGES NOT AVAILABLE AND
DENYING AS MOOT DEFENDANT’S MOTION FOR EXPEDITED RULING
I.
Background
The plaintiff, Betty Jo Davis, individually and as Executrix
of the Estate of Victor C. Davis, instituted this action pursuant
to the Federal Employers’ Liability Act, 45 U.S.C. § 51 et seq.
(“FELA”), alleging that her late husband contracted squamous cell
carcinoma of the thymus as a result of occupational exposure to
creosote while employed by the defendant, CSX Transportation, Inc.
(“CSX”).
Victor C. Davis, the decedent, worked for CSX as a
trackman and machine operator from 1975 until 2006.
During this
time, it is alleged that he was exposed to creosote on a daily
basis.
On August 16, 2006, Mr. Davis was diagnosed with thymic
cancer.
He died from thymic cancer on May 31, 2007 at the age of
57.
The plaintiff initiated this lawsuit on May 5, 2010.
On December 27, 2011, the parties appeared at the Wheeling
point of holding court for a pretrial conference.
At the pretrial
conference, the undersigned judge requested additional briefing on
a variety of issues, including the question of what damages the
plaintiff is entitled to receive.
Pursuant to this Court’s December 27, 2011 order, on December
30, 2011, the plaintiff submitted a memorandum of law regarding the
plaintiff’s damages (ECF No. 116).
In this memorandum, the
plaintiff argues that she is entitled to seek the following
damages: (1) decedent Victor C. Davis’ net loss wages and benefits
to the date of trial; (2) decedent Victor C. Davis’ future net loss
wages and benefits; (3) the loss of support and other financial
benefits decedent would have provided to his wife, Betty Jo Davis;
(4) the loss of support and other financial benefits decedent would
have provided to his son, Bracci Davis; (5) the loss of support and
other financial benefits decedent would have provided to his son,
Kaleb Davis; (6) loss of services decedent would have provided to
his wife, Betty Jo Davis; (7) loss of services decedent would have
provided to his son, Bracci Davis; (8) loss of services decedent
would have provided to his son, Kaleb Davis; (9) pain and suffering
experienced by decedent, Victor C. Davis, before he died; and (10)
disfigurement from surgical scarring, swelling and extreme weight
loss suffered by decedent, Victor C. Davis.
According to the
plaintiff, she is entitled to damages that are equivalent to
compensation
for
deprivation
of
2
a
reasonable
expectation
of
pecuniary benefits that would result from continued life of the
deceased.
Also on December 30, 2011, the defendant filed a brief
regarding available damages and motion in limine to prohibit
introduction of evidence of damages not available (ECF No. 119).
The defendant contends that because the plaintiff’s decedent’s
personal injury claim has been dismissed and all that survives is
the wrongful death claim pursuant to 45 U.S.C. § 51, the only
damages available to the plaintiff are for financial support she
can prove she reasonably expected to receive.
asks
that
this
Court
prohibit
the
Thus, the defendant
plaintiff
from
eliciting,
introducing, or otherwise arguing items of damages that she cannot
recover.
On January 4, 2012, the defendant filed a response to the
plaintiff’s memorandum of law regarding plaintiff’s damages (ECF
No. 122), in which it reiterates its argument that the only damages
available
in
this
action
are
the
pecuniary
losses
that
the
plaintiff can prove she reasonably expected to receive from the
decedent.
Also on January 4, 2012, the defendant filed objections
to the plaintiff’s exhibits (ECF No. 124), in which the defendant
objects to the introduction of exhibits relating to damages that it
contends are not available.1
Additionally, the defendant filed a
1
Specifically, the defendant objects to plaintiff’s exhibits
J, K, and L through S. At the motion hearing on January 9, 2012,
this Court deferred ruling on the objections to these exhibits,
stating that they may be relevant for some purpose other than
damages.
3
motion for an expedited ruling as to the measure of damages
available in this action.
The plaintiff filed a response to the
motion for an expedited ruling on January 5, 2012, in which she
argues that the Court should rule that the plaintiff may seek to
recover for the pain and suffering experienced by the decedent
before his death.
On January 5, 2012, this Court scheduled a
hearing regarding the measure of damages, and counsel for both
parties appeared via telephone for a hearing on January 9, 2012.
This order hereby confirms the pronounced order of the Court at the
January 9, 2012 hearing.
II.
Applicable Law
In a FELA action for the death of an employee brought by his
personal representative for the benefit of his beneficiaries, the
representative is entitled to recover such damages “as flow from
the deprivation of the pecuniary benefits which the beneficiaries
might have reasonably received if the deceased had not died from
his injuries.”
Michigan Cent. R. Co. v. Vreeland, 227 U.S. 59, 70
(1913); see Horton v. Seaboard Air Line Ry. Co., 95 S.E. 883, 885
(N.C. 1918) (“Under the [FELA] the jury must find, as to each
plaintiff, what pecuniary benefit each plaintiff had reason to
expect from the continued life of the deceased, and the recovery
must be limited to compensation of those relatives, in the proper
class, who are shown to have sustained such pecuniary loss.”).
This includes both the estimated value of the portion of the
deceased’s earnings that he could reasonably have been expected to
4
give to his family, as well as certain less tangible items, such as
care and training of his children and services around the home.
See Norfolk & W. R. Co. v. Holbrook, 235 U.S. 625, 629 (1915).
However, no allowance can be made for the anguish and grief of the
decedent’s relatives, for loss of consortium and companionship, or
for funeral expenses.
See Vreeland, 227 U.S. at 71; Dubose v.
Kansas City Southern R. Co., 729 F.2d 1026, 1033 (5th Cir. 1984)
(“Funeral expenses . . . may not be included in damages awarded in
FELA actions.”).
One intangible element that the jury may consider is the
pecuniary
value
of
a
father’s
care,
attention,
instruction,
training, advice and guidance to his minor children. See Holbrook,
235 U.S. at 629.
An adult child of the decedent may also recover
pecuniary damages after the age of majority if there is evidence
introduced to show such damages.
However, “[i]n the absence of
evidence that an adult child is either dependent upon or had any
reasonable grounds for expecting any pecuniary benefit from a
continuance of the decedent’s life, a recovery on behalf of such
child is excluded.”
Kozar v. Chesapeake & Ohio Ry. Co., 449 F.2d
1238, 1243 (6th Cir. 1971) (quoting Thompson v. Camp, 163 F.2d 396,
403 (6th Cir. 1947)).
A second intangible for which recovery can be had is the
services that the husband would have performed around the home.
See Alabama Great S. R. Co. v. Cornett, 106 S.O. 242, 248 (Ala.
1925); Ward v. Denver & R. G. W. R. Co., 85 P.2d 837, 849 (Utah
5
1939) (“A husband’s services in the home often have a pecuniary
value which it would cost money to replace, such as chores,
marketing, and the like.”).
As both parties in this case have noted, the FELA creates two
causes of action for negligence -- one for the wrong to the injured
person, which is confined to his personal loss and suffering before
he died, and another for the wrong to the beneficiaries, which is
confined to their pecuniary loss through his death.
See Burns v.
Marine Transp. Lines, Inc., 207 F. Supp. 276, 277 (S.D.N.Y. 1962)
(discussing the Jones Act, which incorporates provisions of the
FELA). The action for the decedent’s pain and suffering accrues at
the time of injury, while the wrongful death action accrues at
death.
Reading Co. v. Koons, 271 U.S. 58, 64 (1926).
III.
Discussion
After considering the motions, memoranda, and objections of
the parties, as well as the case law described above, this Court
finds that the plaintiff is entitled to seek the following damages:
(1) decedent Victor C. Davis’ net loss wages and benefits to the
date of trial; (2) decedent Victor C. Davis’ future net loss wages
and benefits; (3) the loss of support and other financial benefits
decedent would have provided to his wife, Betty Jo Davis; and (4)
loss of services decedent would have provided to his wife, Betty Jo
Davis.
If the plaintiff presents evidence that Bracci and Kaleb
Davis were either dependant upon, or had any reasonable grounds for
expecting
any
pecuniary
benefit
6
from
a
continuance
of
their
father’s life, the plaintiff may be able to seek to recover damages
for: (1) the loss of support and other financial benefits decedent
would have provided to his son Bracci Davis; (2) the loss of
support and other financial benefits decedent would have provided
to his son Kaleb Davis; (3) loss of services decedent would have
provided to his son Bracci Davis; and (4) loss of services decedent
would have provided to his son Kaleb Davis.
In its memorandum opinion and order dated December 21, 2011,
this Court dismissed the plaintiff’s personal injury cause of
action, finding it to be time-barred by the three-year FELA statute
of limitations.
remains.
Thus, only the plaintiff’s wrongful death action
Because the wrongful death action did not accrue until
the time of Victor Davis’ death, the plaintiff cannot recover for
pain and suffering experienced by the decedent before he died, or
for disfigurement from surgical scarring, swelling, and extreme
weight loss suffered by the decedent.
IV.
Conclusion
For the reasons stated above, the defendant’s motion in limine
to prohibit the introduction of evidence of damages not available
(ECF No. 119) is GRANTED IN PART AND DENIED IN PART.
Further, the
defendant’s motion for an expedited ruling (ECF No. 127) is DENIED
AS MOOT.
IT IS SO ORDERED.
The Clerk is directed to transmit a copy of this order to
counsel of record herein.
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DATED:
January 10, 2012
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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