306 F.3d 335 (6th Cir. 2002), 01-1043, Toth v. Grand Trunk R.R.

Docket Nº:01-1043.
Citation:306 F.3d 335
Party Name:William TOTH, Plaintiff-Appellant, v. GRAND TRUNK RAILROAD, d/b/a CN North America, Defendant-Appellee.
Case Date:September 18, 2002
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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306 F.3d 335 (6th Cir. 2002)

William TOTH, Plaintiff-Appellant,


GRAND TRUNK RAILROAD, d/b/a CN North America, Defendant-Appellee.

No. 01-1043.

United States Court of Appeals, Sixth Circuit

September 18, 2002

Argued: June 12, 2002.

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Michael J. Leizerman (argued and briefed), E.J. Leizerman & Associates, Toledo, OH, for Plaintiff-Appellant.

Gregory A. Clifton (argued), Mary C. O'Donnell (briefed), Durkin, McDonnell, Clifton, Davis & O'Donnell, Detroit, MI, for Defendant-Appellee.

Before: BOGGS, SILER, and MOORE, Circuit Judges.


MOORE, Circuit Judge.

Plaintiff-Appellant William Toth appeals from a jury verdict in favor of Defendant-Appellee Grant Trunk Western Railroad ("GTW"), following a trial on Toth's claims under the Federal Employers' Liability Act ("FELA"), 45 U.S.C. § 51 et seq., and the Safety Appliance Act ("SAA"), 49 U.S.C. § 20302 et seq. Toth's suit alleged that he was injured by a defective operating lever on a railroad car while he was working as a railroad conductor. On appeal, Toth argues: (1) that the district court erred in denying his request for discovery sanctions; (2) that the district court improperly prevented him from presenting rebuttal evidence; (3) that the district court erred in refusing to take judicial notice of federal railroad safety regulations; (4) that the district court erred in instructing the jury on GTW's sole-proximate-cause defense; (5) that the district court erred in instructing the jury on the availability of alternate remedies; (6) that the district court improperly excluded evidence relating to damages; and (7) that the district court erred in allowing GTW's medical expert to testify about the contents of hearsay medical reports. For the reasons that follow, we AFFIRM the district court on all issues.


On June 11, 1998, Toth filed suit against GTW, alleging claims under FELA and

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the SAA. Toth's suit alleged that he was injured on July 25, 1995, while coupling a gondola-style1 railroad car to a string of railroad cars at GTW's Flat Rock rail yard in Michigan. According to Toth, the coupling lever on the gondola car malfunctioned during this procedure, causing the lever to overextend and recoil against the face of the train car. Toth claims that his thumb was crushed as a result. After discovery, Toth's case went to trial, which resulted in a verdict for the defendant. Toth now appeals a number of pretrial and trial rulings of the district court.

A. Discovery

Prior to trial, a number of disputes arose between the parties regarding discovery. The most significant of these related to defendant's production of records relating to the repair histories of the cars on Track 39, the track on which the accident occurred, on the day of the incident. Plaintiffs requests for this information were made in connection with interrogatories 22 and 23 of plaintiffs first set of interrogatories. These interrogatories and defendant's initial answers are as follows:

22. Identify and describe any demonstrative evidence known to you or in your possession or control relative to the allegations set forth in plaintiff's complaint or defenses asserted by defendant.

Answer: First, it is unknown what plaintiff means by "demonstrative evidence" and by "possession and control." For example, plaintiff alleges injuries from a defective operating lever on a gondola car. Defendant knows it has possession and/or control over gondola cars, which would contain operative levers. Does plaintiff mean this? Defendant does not know. To date, defense counsel has in her possession all pleadings; plaintiff's medical/personnel/local files; medical and other records obtained through authorizations, plaintiffs deposition and exhibits.

. . .

23. If an inspection was made of the equipment on which plaintiff was injured, prior to or as a result of the occurrence in suit, state the name, addresses, and titles of the persons making such inspections and . . . the individuals) who has custody and control of any such inspection records.

Answer: Plaintiff did not allege defective equipment requiring inspection on either 7/25/95 or in 2/96.

Joint Appendix ("J.A.") at 92-93 (Defendant's Responses to Interrogatories at 9-10). Plaintiff also made a request for "any such documents, reports, memos, etc., in Defendant's possession with regard to any inspection referred to in Interrogatory No. 23 above," in response to which defendant referenced its answer to interrogatory 23. J.A. at 95.

On March 22, 1999, plaintiffs counsel sent a letter to counsel for GTW asserting that defendant's responses to interrogatories were deficient in a number of respects. Plaintiff specifically requested clarification on the responses to interrogatories 22 and 23, and the related document request. After determining that GTW had not properly clarified its answers, plaintiff filed on April 13, 1999, a motion to compel with respect to its request for clarification. Before the district court ruled on plaintiff's motion, the parties resolved the dispute and the court entered an order deeming the motion to compel withdrawn.

Defendant submitted supplemental answers to plaintiffs interrogatories on June 12, 1999. Defendant's supplemental answer

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to interrogatory 22 (demonstrative evidence) stated that "car history records" had been "requested, but [were] perhaps unlikely to be available given plaintiffs failure to identify a specific car or to cite a defect." J.A. at 975. Defendant's supplemental response to interrogatory 23 (inspection records) stated that "Defendant was not able to perform a formal mechanical inspection due to plaintiff's failure to allege any defective equipment. . . . As to possible general inspection records which still exist, these have been requested." J.A. at 975. On November 14, 2000, plaintiff learned for the first time that GTW possessed a "switch list"—a listing of the cars that were present on Track 39 on the day of Toth's accident. GTW gave plaintiff a copy of the switch list on November 21, 2000. Defense counsel Mary O'Donnell stated that she did not remember when she obtained the switch list. O'Donnell stated that she believed the switch list had no utility to plaintiff and was not responsive to the plaintiff's discovery requests "given [the] inability to produce car history records due to plaintiff's failure to cite to either a defect or to a specific car back in 1995." J.A. at 1023 (O'Donnell 1st Aff. at ¶ 20). The plaintiff, unsatisfied with GTW's explanations for the belated disclosure, filed a motion for sanctions pursuant to Federal Rule of Civil Procedure 37(c).

Shortly before trial, GTW for the first time made plaintiff aware of the existence of car repair history records for the cars on Track 39 on the day of the accident. These records were generated by a computer program that could access and compile the repair histories of particular cars. According to the affidavit of GTW Chief Clerk Darrell Peterson, this computer program was old and rarely used, and it was not until November 27, 2000, that GTW learned it could access the repair history records.

On November 30, 2000, the district court entered an order denying plaintiff's motion for sanctions. The court noted its belief that GTW should have been more diligent in searching for and identifying the switch list and repair history records. Nevertheless, the court concluded that it lacked authority to sanction the defendant in the absence of a court order compelling disclosure by the defendant at an earlier date.

B. Trial

The case proceeded to trial on November 28, 2000. The plaintiff's case on the issue of liability was based primarily on Toth's own account of the accident. Toth testified that on July 25, 1995, he was connecting, or "coupling," a series of train cars to a locomotive so they could be taken out of the yard. To couple train cars, a conductor lifts an operating lever on the coupling mechanism, which causes the coupling knuckle to open. Toth stated that the operating lever on one of the gondola cars was jammed and would not open properly. He changed his position and again tried to open the coupling mechanism on this car. According to Toth, the lever finally lifted, but it swung up too far and "[t]hrew [his] arm up . . . and jerked it out of the socket." J.A. at 1231 (Toth Tr. at 29). The lever then swung back down and crushed Toth's left hand against the bulkhead of the railcar. Toth testified that an operating lever in proper condition could not be lifted more than 90 to 110 degrees from its original position, taking it to a position roughly parallel to the ground. Toth stated, however, that the gondola car's operating lever swung up a full 180 degrees before crashing back down onto the bulkhead. Toth testified that this could be explained by loose rivets in the

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coupling mechanism. Nobody other than Toth witnessed the accident.

After the accident, Toth reported his injury to Jamie VanEnglen, the trainmaster overseeing operations that night. Toth did not report any defect in the operating lever. VanEnglen instructed Toth to fill out a personal injury report, and then drove Toth to a nearby clinic for treatment. Toth testified that his hand was cut and bleeding and that his thumb had been broken in two places. After the fracture in his thumb healed, Toth continued to work as a conductor for about two years. Toth continued to experience pain in his left hand, however, and was unable to grip with the hand. Toth stated that he continues to experience pain in his hand and wrist, and that the pain has progressed to his shoulder.


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