616 F.3d 380 (4th Cir. 2010), 09-1249, Sloas v. CSX Transp. Inc.

Docket Nº:09-1249, 09-1288.
Citation:616 F.3d 380
Opinion Judge:AGEE, Circuit Judge:
Party Name:Michael D. SLOAS, Plaintiff-Appellee, v. CSX TRANSPORTATION, INCORPORATED, a corporation, Defendant-Appellant. Association of American Railroads, Amicus Supporting Appellant. Michael D. Sloas, Plaintiff-Appellant, v. CSX Transportation, Incorporated, a corporation, Defendant-Appellee. Association of American Railroads, Amicus Supporting Appellee.
Attorney:Andrew E. Tauber, Mayer Brown, LLP, Washington, D.C., for Appellant/Cross-Appellee. William A. Kvas, Hunegs, Leneave & Kvas, PA, Minneapolis, Minnesota, for Appellee/Cross-Appellant. Melissa Foster Bird, Huddleston Bolen LLP, Huntington, West Virginia, for Appellant/Cross-Appellee. W. Michael Fra...
Judge Panel:Before TRAXLER, Chief Judge, and NIEMEYER and AGEE, Circuit Judges. Judge AGEE wrote the opinion, in which Chief Judge TRAXLER and Judge NIEMEYER joined.
Case Date:July 26, 2010
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 380

616 F.3d 380 (4th Cir. 2010)

Michael D. SLOAS, Plaintiff-Appellee,

v.

CSX TRANSPORTATION, INCORPORATED, a corporation, Defendant-Appellant.

Association of American Railroads, Amicus Supporting Appellant.

Michael D. Sloas, Plaintiff-Appellant,

v.

CSX Transportation, Incorporated, a corporation, Defendant-Appellee.

Association of American Railroads, Amicus Supporting Appellee.

Nos. 09-1249, 09-1288.

United States Court of Appeals, Fourth Circuit

July 26, 2010

Argued: May 11, 2010.

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[Copyrighted Material Omitted]

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ARGUED:

Andrew E. Tauber, Mayer Brown, LLP, Washington, D.C., for Appellant/Cross-Appellee.

William A. Kvas, Hunegs, Leneave & Kvas, PA, Minneapolis, Minnesota, for Appellee/Cross-Appellant.

ON BRIEF:

Melissa Foster Bird, Huddleston Bolen LLP, Huntington, West Virginia, for Appellant/Cross-Appellee.

W. Michael Frazier, Frazier & Oxley, L.C., Huntington, West Virginia, for Appellee/Cross-Appellant.

Louis P. Warchot, Daniel Saphire, Washington, D.C., for Association of American Railroads, Amicus Supporting Appellant/Cross-Appellee.

Before TRAXLER, Chief Judge, and NIEMEYER and AGEE, Circuit Judges.

Affirmed by published opinion.

Judge AGEE wrote the opinion, in which Chief Judge TRAXLER and Judge NIEMEYER joined.

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OPINION

AGEE, Circuit Judge:

Michael Sloas, a sheetmetal worker employed by CSX Transportation, Inc. (" CSXT" ), injured his back while attempting to remove a damaged Snyder valve from a locomotive's fuel tank. Subsequently, Sloas applied for and received a disability annuity under the Railroad Retirement Act (" RRA" ). See 45 U.S.C. § 231 et seq. Sloas also sued CSXT for negligence under the Federal Employers Liability Act (" FELA" ),1 see 45 U.S.C. § 51 et seq., and obtained a jury award in his favor.

On appeal, we consider the district court's denial of (1) CSXT's request for a set off against the FELA award based on its contributions to the Tier II fund used to pay a portion of Sloas' RRA disability benefits, and (2) Sloas' request for judgment as a matter of law in his favor on the issue of contributory negligence. For the following reasons, we affirm the judgment of the district court.

I.

We begin with a summary of the evidence presented at trial, the jury's apportionment of fault, and the district court's disposition of the parties' post-trial motions.

A.

On January 21, 2005, CSXT employees were attempting to service and redeploy a locomotive that had been sideswiped. Sloas was tasked with removing and replacing the locomotive's damaged Snyder valve, an aluminum valve that threads into the neck of a locomotive's fuel tank in order to secure the fuel cap. Damage to the Snyder valve precluded Sloas from using the preferred tool for this procedure, a spanner wrench.

Sloas testified that he first attempted to break the valve loose using a twenty-four inch pipe wrench. When this effort failed, Sloas further testified that he went to the tool room to retrieve a sawzall or reciprocating saw and a forty-eight inch pipe wrench. According to Sloas, no sharp blades were available for the sawzall and his attempt to use that saw to cut the Snyder valve merely scratched the valve's surface. CSXT cast doubt on Sloas' testimony, however, by presenting evidence that Sloas did not consistently mention the lack of sharp sawzall blades to his supervisors, as well as by eliciting testimony from an assisting coworker who did not recall the presence of a sawzall.

Sloas subsequently used a torch to heat the collar of the locomotive's fuel tank in the hope that the collar would expand and the valve would come loose. Once the valve was fully heated, Sloas unsuccessfully used a hammer in an attempt to dislodge it. Sloas and a coworker then tried to leverage the valve out using the forty-eight inch pipe wrench, but that effort also failed.

Consequently, Sloas reheated the collar of the fuel tank and he and his coworker repeated their use of the forty-eight inch pipe to lift the valve. In total, Sloas and his coworker used the forty-eight inch pipe wrench to apply pressure to the Snyder valve for approximately fifteen to twenty-five minutes. Sloas experienced back pain toward the end of their last attempt. Believing that he could " walk it off," Joint Appendix (" J.A." ) at 79, Sloas initially did

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not mention his potential back injury to his coworker.

Both Sloas and his coworker then took a regularly scheduled break. Sloas testified that he later returned to the Snyder valve, used a hammer to " beat it," " heard a tone," and the valve " just c[a]me loose." Id. at 80. This version of events was contradicted by a report generated the night of the incident by CSXT's supervisory employees, which stated that Sloas indicated that he ultimately used a sawzall to remove the valve. Sloas completed his shift, but was instructed to fill out an incident report after he informed his local union representative that he had " wrenched his back." Id. at 187. Once the reporting process was complete, Sloas drove home. By the time he arrived home he was " in a lot of pain." Id. at 89.

The next day Sloas went to the hospital for an x-ray and thereafter received extensive treatment from his family physician and a neurologist, who prescribed prescription pain killers and steroid injections. This treatment caused Sloas to have blurred vision and trouble concentrating.

Sloas returned to work at CSXT for two extended periods from June 2005 to December 2005, and again from May 2006 to June 2007. Due to Sloas' obvious pain, CSXT's management removed him from his position in June 2007 and instructed him to obtain medical authorization before returning to work. Sloas' neurologist never authorized a return to work at CSXT.

Testimony offered by CSXT employees at trial established that use of a pipe wrench or a sawzall was an appropriate method to remove Snyder valves and that the valves often proved difficult to remove. Several employees explained that a shortage of sharp sawzall blades at the repair facility was not uncommon, but that certain supervisors could retrieve sharp blades from a locked storeroom.

The evidence presented at trial, by Sloas and others, also established that CSXT had a policy against the use of " brute force." See, e.g., id. at 113, 222. CSXT's supervisory employees explained that this policy generally cautioned employees against " overexerting" themselves. Id. at 222; see also id. at 259 (" Brute force is just a terminology for straining yourself.... [D]on't just take it upon yourself to do something where there's an easier course to do it. If you can get help, get somebody else to help you. If you can use a crane or a hoist or something or a forklift, use something like that." ). Several CSXT witnesses opined that Sloas violated this policy when he continued to use the forty-eight inch pipe wrench to leverage the Snyder valve, despite a lack of discernable progress in removing it.

The jury ultimately determined that both CSXT and Sloas were negligent and that their combined negligence contributed to Sloas' back injury. When asked to apportion the percentage of Sloas' injury and the commensurate damages attributable to each party's negligence, the jury found CSXT and Sloas to be equally liable. The jury further determined that $160,000 in damages would fully compensate Sloas for his total injury. In accordance with the jury's apportionment of fault, the district court entered judgment in Sloas' favor in the amount of $80,000.

B.

Post-trial, CSXT filed a motion under Federal Rule of Civil Procedure 59(e) to alter or amend the judgment.2 Because

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Sloas received disability payments under the RRA based on his inability to return to work, CSXT argued that it was " entitled to a setoff against the jury's award of damages to [Sloas] in the amount of $2,107.49, as this number represent[ed] the present value of the disability benefits attributable to CSXT's contributions to the disability benefits received by [Sloas] during the time period of December 1, 2007 through December 1, 2008." Id. at 351-52. Without a setoff, CSXT argued it would be forced to " pay[ ] twice for the same loss," resulting in Sloas impermissibly receiving " double payment." Id. at 352.

The district court denied CSXT's request for a setoff. In so doing, it relied on the Supreme Court's statement in Eichel v. N.Y. Central Railroad Co., 375 U.S. 253, 84 S.Ct. 316, 11 L.Ed.2d 307 (1963) that " ‘ [t]he [RRA] is substantially a Social Security Act for employees of common carriers.... The benefits received under such a system of social legislation are not directly attributable to the contributions of the employer, so they cannot be considered in mitigation of the damages caused by the employer.’ " J.A. at 443 (quoting Eichel, 375 U.S. at 254, 84 S.Ct. 316). The district court was not persuaded by CSXT's contention that the holding in Eichel was abrogated by Congress' subsequent amendment of the RRA in 1974. As the court explained,

[i]t has been thirty-five years since this supposed " paradigm shift" occurred, yet apparently the only cases granting a setoff under the RRA that [CSXT] can muster are two state trial court cases, both decided in the last five months by courts in states outside the Fourth Circuit. See Fairchild v. CSX Transp., Inc., Case No. 05-CI-06642 (Jefferson, Ky., Cir.Ct., Div.5, Sept. 3, 2008); Radder v. CSX Transp., Inc., Index No.: I 2005-8536 (N.Y. Sup.Ct., County of Erie, Oct. 9, 2008). Moreover, while [CSXT] has produced the orders of these courts that grant the setoff in each...

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