Opinion
Case No. 3:00CV7099.
February 14, 2005
ORDER
This is an FELA case in which the jury returned a general verdict for the defendant. Pending is plaintiff's motion for a new trial. For the following reasons, the motion shall be denied.
Background
Plaintiff worked as a locomotive engineer for the railroad. He developed asthma, which was aggravated by exposure to second-hand smoke. Defendant was aware of the health risks of second-hand smoke, as it adopted a no-smoking policy. Plaintiff claims that defendant did not enforce this policy at its Walbridge, Ohio, yard, where plaintiff reported for his assignments.
Plaintiff claims that he frequently encountered second-hand smoke, particularly in the building where he and other employees waited for their trains to be ready. He testified that he frequently complained to CSX about smoking by other employees, including supervisors who were to enforce the railroad's no-smoking policy.
Plaintiff claims that the defendant violated the FELA by its failure to have responded effectively to his complaints, thereby causing plaintiff to work in an unsafe environment. As a result, plaintiff contends, he suffered asthmatic attacks and periods of incapacitation due to those attacks. He alleges that he is incapable, as a result of his asthmatic condition and its aggravation due to exposure to second-hand smoke, of working as an engineer or otherwise for the railroad or elsewhere.
Plaintiff seeks a new trial on the basis that:1) the jury's verdict on the railroad's liability, causation, and injury under the FELA was contrary to the weight of the evidence; and 2) this court erroneously admitted or excluded certain evidence over plaintiff's objection.
Discussion
A new trial is warranted under Rule 59(a) of the Federal Rules of Civil Procedure if the jury has reached a seriously erroneous result as evidenced by either:1) a verdict against the weight of the evidence; 2) an excessive damage award; or 3) influence on the verdict of bias or prejudice. See, e.g., Holmes v. City of Massillon, 78 F.3d 1041, 1045-46 (6th Cir. 1996) (citing, inter alia, Montgomery Ward Co. v. Duncan, 311 U.S. 243, 251 (1940)).
1. The Weight of the Evidence
There was substantial conflict in the testimony, and the outcome depended to a considerable extent on the jury's evaluation of credibility — especially that of the plaintiff — and its view of the opinions offered by the parties' experts. It is clear that the jury made credibility findings in favor of the defendant and against the plaintiff. On this basis alone, without an elaborate review of the conflicts in the testimony, this court can overrule plaintiff's challenge to the weight of the evidence.
There was extensive discussion throughout the trial of the defendant's no-smoking policy and the extent to which it was, or was not enforced. While the jury reasonably could have found that the policy was not enforced, that, alone would not have been enough for it to return a verdict for the plaintiff. To do so, it had to credit the plaintiff's testimony about the consequences of such non-enforcement, and the extent to which he incurred injuries. It apparently did not do so, and relied, rather, on the contrary testimony offered by the defense, including its opinion evidence.
More importantly, the issue was not whether CSX enforced its policy, which simply constituted otherwise undisputed evidence that the railroad was on notice of the general health hazards of second-hand smoke.Plaintiff still had to show that the second-hand smoke to which he was exposed caused his working environment to be unsafe. As stated in this court's instruction to the jury, to which plaintiff made no objection:
Even if you find defendant CSX Transportation violated or failed to enforce a safety rule, such a violation or failure does not require a finding of negligence. Before you may impose liability on defendant CSX Transportation, you must still find that defendant CSX Transportation failed to exercise reasonable care under the circumstances.
Thus, if the jury believed CSX exercised reasonable care, it could conclude that the railroad was not negligent and return a verdict in its favor.
Evidence offered by the railroad, if credited over that offered by the plaintiff (as clearly it was), justified the defense verdict. CSX presented evidence that, contrary to plaintiff's evidence, it not only voluntarily implemented the no-smoking policy, it sought to enforce it when it became aware of violations. One of plaintiff's witnesses testified that employees hid smoking from their supervisors. Two of those supervisors testified that they were in and around the premises at the Walbridge yard and rarely, if ever, observed violations of the policy.
There was evidence, moreover, that plaintiff exaggerated the frequency of his exposure. Though he testified exposure occurred on a daily basis, records that he claimed to have kept on a regular basis indicated 104 instances of exposure in 1998, and sixty-six instances in 1999. Plaintiff offered no similar records for following years until he left the railroad.
As noted, the question of liability under the FELA turned on the jury's assessment of the witnesses' credibility. The evidence sufficed for the jury to give greater weight to the defendant's evidence and lesser to that of the plaintiff as to whether conditions at plaintiff's work place were reasonably safe or unreasonably unsafe.
If the jury found no violation of the FELA, it was not necessary for it to have considered the issues of damages and causation.
In any event, here, again, there was sharp conflict between the witnesses for each side. Though the plaintiff's treating physician concluded that he should not return to work due to exposure to second hand smoke and its consequences, the defense presented evidence from a pulmonologist who examined plaintiff in 2001 and 2004, examined his medical records, and concluded that plaintiff's condition had been unchanged since 1997, there had been no significant deterioration from plaintiff's asthma, and he remained capable of working.
If credited, as apparently it was, this evidence sufficed to sustain the jury's verdict as to causation and injury.
There was likewise conflicting evidence regarding the extent to which, if any, plaintiff was unable to continue working as an engineer or was, as he claimed, entirely incapable of performing any work for the railroad or anybody else. Here, again, the jury's verdict for the defense, if it reached the issue of damages, would have been sustained by the evidence.
2. Admission and/or Exclusion of Evidence
Plaintiff challenges certain evidentiary rulings, including: the admission of surveillance videotapes, the exclusion of portions of testimony by an employee of CSX about complaints about smoking elsewhere in the CSX system, admission of testimony about the railroad's "action log" of rule violations, and nondisclosure prior to trial that a defense expert had visited the Walbridge yard.
a. Surveillance Tapes
Excerpts of tapes made by an investigator retained by CSX showed the plaintiff walking without difficulty, climbing stairs to his house and that of his daughter, and loading and carrying groceries. The plaintiff objected to the relevance of this evidence, which was but a portion of the surveillance tapes available to the defense.
Plaintiff claimed that any exertion was excessive in light of his asthmatic condition, and that consequently he was not employable. The railroad contended that plaintiff was able to work. Plaintiff also testified that he did not visit his daughter because she was a smoker.
The surveillance video, at the very least, was admissible to impeach plaintiff's testimony that he could not walk ten feet without struggling for breath and could perform no job requiring him to do more than sit indoors with no exposures to potential allergenic triggers.
To the extent that the tape suggested that plaintiff could have continued to work as an engineer, it conformed with other, albeit vigorously contested, evidence about plaintiff's ability to have done so.
b. Excluded Testimony About Complaints of Violations Elsewhere of the No-Smoking Policy
Plaintiff proffered deposition testimony about complaints about smoking at other CSX locations. According to plaintiff, in addition to being otherwise probative, this testimony "could have persuaded the jury that the rule was not enforced at Walbridge."
I find no error in the exclusion of this evidence.First, Ms. Hamilton testified about complaints made before 1994, prior to adoption of the no-smoking policy at Walbridge. More importantly, complaints about smoking elsewhere had no bearing on conditions encountered by plaintiff at that facility. It was, accordingly, not relevant to plaintiff's claims about his own working conditions, and whether they were unsafe.
I agree with the defendant that such evidence, in addition to not being probative of conditions at Walbridge, is not admissible under the "similar acts" provisions of Fed.R.Evid. 404(b). There was no showing of any nexus between what may or may not have existed at various locations elsewhere and what existed at Walbridge.
To have allowed this evidence would, in any event, have contravened Rule 403, in view of its tendency to confuse the jury as to what the case was about (conditions in which the plaintiff worked) and what it was not about (liability due to alleged non-enforcement of the no-smoking policy).
c. Log Book of Discipline
CSX presented testimony regarding the railroad's "action log" of rule violators since the year 2000. Plaintiff claims that this evidence contradicts the witness's deposition testimony and came as an unfair surprise because it was not disclosed during discovery and was not listed as a defense exhibit prior to trial.
I agree with defendant that there was no inconsistency between the log and the witness's deposition testimony. Even if there were such inconsistency, that would go to the overall credibility of the witness, which was for the jury to assess in light of any such inconsistency.
I agree, finally, with the defendant's contention that no error occurred with the failure to disclose the log prior to trial. It was not admitted as an exhibit, and testimony about it constituted proper evidence of the railroad's disciplinary process and method for recording violations.
d. Inspection of Premises by Defendant's Expert
Plaintiff's reply brief complains about the failure prior to trial to have disclosed the fact that one of the defense experts had visited the Walbridge premises.
Plaintiff's failure to have raised this contention in his initial brief constitutes a waiver. In any event, I find no error, and certainly none that requires a new trial, in this contention.
Conclusion
This case was, in my view, well and fairly tried by both sides. On review of plaintiff's motion for new trial, I conclude that the jury's verdict had sufficient support in the record and find no error in my evidentiary rulings, or, in any event, no error that affected the outcome of the trial.
It is, therefore,
ORDERED THAT plaintiff's motion for a new trial be, and the same hereby is overruled.
So ordered.