909 F.2d 1557 (7th Cir. 1990), 88-2207, Varhol v. National R.R. Passenger Corp.

Docket Nº:88-2207.
Citation:909 F.2d 1557
Party Name:John VARHOL, Plaintiff-Appellant, v. NATIONAL RAILROAD PASSENGER CORPORATION, d/b/a AMTRAK, Defendant-Appellee.
Case Date:August 13, 1990
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 1557

909 F.2d 1557 (7th Cir. 1990)

John VARHOL, Plaintiff-Appellant,




No. 88-2207.

United States Court of Appeals, Seventh Circuit

August 13, 1990

Page 1558

[Copyrighted Material Omitted]

Argued May 19, 1989.

Reargued En Banc May 30, 1990.

Page 1559

Roy W. Strawn, East Alton, Ill., Howard E. Gilbert, Michael D. Richman, Gilbert & Associates, Skokie, Ill., for plaintiff-appellant.

Hugh C. Griffin, Richard F. Johnson, Paul J. Peralta, Lord, Bissell & Brook, Chicago, Ill., for defendant-appellee.

Howard A. Pollack, Mark M. Leitner, Charne, Clancy & Taitelman, Milwaukee, Wis., for Seventh Circuit Bar Ass'n amicus curiae.

Thomas R. Meites, Meites, Frackman & Mulder, Chicago, Ill., Stephen J. Spitz, Christopher J. Murdoch, Sperling, Slater & Spitz, Chicago, Ill., for Chicago Council of Lawyers amicus curiae.

J. Timothy Eaton, Coffield, Ungaretti, Harris & Slavin, Chicago, Ill., Dennis A. Rendleman, Leonard F. Amari, Illinois State Bar Ass'n, Staff Counsel, Springfield, Ill., for Illinois State Bar Ass'n amicus curiae.

Louis R. Hegeman, Kathryn S. Mueller, Gould & Ratner, Chicago, Ill., Michael S. Shaw, Highland Park, Ill., for Federal Bar Ass'n amicus curiae.

John D. Varda, Jon P. Axelrod, William D. Mollway, Dewitt, Porter, Huggett, Schumacher & Morgan, Madison, Wis., for Wisconsin Porcelain Co. Revised Retirement Plan, Wisconsin Porcelain Retirement Participants amicus curiae.

Page 1560



John Varhol appeals from a jury verdict that awarded him what he considers to be grossly inadequate damages. Not surprisingly, Varhol's main contention on appeal is that the damage award was too low. Preserving that issue for appeal, however, required Varhol to file a timely new trial motion in the district court. Hahn v. Becker, 588 F.2d 768, 772 (7th Cir.1979). Unfortunately Varhol served his new trial motion well after the ten-day limit Fed.R.Civ.P. 59 allows. Whether Varhol's motion was timely, and thus whether Varhol has preserved his damages issue for appeal, depends on the status of Eady v. Foerder, 381 F.2d 980 (7th Cir.1967), which held that in certain "unique circumstances" a district court may dispose of an otherwise untimely new trial motion on the merits.

The case was originally argued before a three-judge panel. The full court plus Senior Judge Eschbach reheard the case en banc to consider whether to overrule Eady. The court as constituted is evenly divided. Six judges (Judges Cummings, Posner, Coffey, Easterbrook, Manion, and Eschbach) voted to overrule Eady. Six judges (Chief Judge Bauer and Judges Wood, Cudahy, Flaum, Ripple, and Kanne) voted not to overrule Eady. Since a majority of the court as constituted did not vote to overrule Eady, it remains as the law of this circuit.

Despite not overruling Eady, the court unanimously voted to affirm the district court on all issues, including damages. Those judges who voted to overrule Eady would affirm the amount of damages on procedural grounds, not reaching the issue on the merits because of Varhol's failure to file a timely new trial motion. Those judges who voted not to overrule Eady would hold on the merits that the district court did not abuse its discretion by not awarding Varhol a new trial on damages.

The court's opinion discusses those issues on which all judges have agreed. The question of whether to overrule Eady is discussed in separate concurring opinions. [*]


John Varhol worked as a chief of on-board services for the National Railroad Passenger Corporation (more commonly known as Amtrak, the name by which we will refer to it). Varhol's job required him to ride on Amtrak's trains during their scheduled runs. On November 12, 1983, the train on which Varhol was working derailed near Jefferson, Texas. The car in which Varhol had been riding remained upright, but Varhol was thrown to his hands and knees. He picked himself up, checked various cars, and went outside to help remove passengers from the train. A short time after the accident, while still helping to remove passengers, Varhol slipped on some rocks near the track, again falling on his hands and knees. Varhol rode a train home to Chicago the next day, working along the way; he never worked again (for Amtrak and as far as we know for anyone else).

According to Varhol, the derailment caused him severe injuries that prevented him from returning to work, and caused him great pain and suffering. Varhol sued Amtrak under the Federal Employers Liability Act (FELA), 45 U.S.C. Secs. 51-60. Amtrak admitted that its negligence caused the derailment, so the only issue at trial was damages. The problem for Varhol in proving damages was that he had had Multiple Sclerosis (MS) for ten to twenty years before the derailment. Varhol claimed that the derailment had made his MS worse; Amtrak contended that Varhol's condition after the derailment resulted

Page 1561

from the natural progression of his MS, and that the derailment had nothing to do with exacerbating his MS. Varhol alleged that he suffered injuries apart from the exacerbation of his MS, but the evidence was such that a reasonable jury could have believed that other than a few scrapes and bruises he received in his falls, the bulk of Varhol's damages (for example, his physical ills and inability to return to work) were caused by his MS. Thus, the central issue at trial was whether, and to what extent, the derailment exacerbated Varhol's MS.

After both sides presented conflicting testimony on the medical issues, the trial judge submitted the case to the jury. Among the instructions the judge gave was a series of interrogatories concerning the extent to which the derailment aggravated Varhol's MS. Those interrogatories required the jury to determine, if it could, "what percentage of [Varhol's] present condition was caused by the injuries he suffered as a result of the train derailment ...," and then asked the jury if it took that "percentage into consideration in reducing the amount of damages that you have awarded" to Varhol. The jury found that the derailment caused one percent of Varhol's condition, and awarded him $237.00 in damages.

After the jury announced its verdict, the district judge told Varhol's lawyers that they could take twenty-one days to file any post-trial motions, including a motion for a new trial. Twenty-one days later, Varhol filed his motion for new trial. Not surprisingly, Varhol's motion contended that a new trial was necessary because the jury's verdict was grossly inadequate. Varhol also challenged the trial judge's decision to submit the special interrogatories on aggravation to the jury, and the judge's decision not to admit his medical bills into evidence. The trial judge denied Varhol's motion. Varhol appeals both the denial of his motion and the underlying judgment.


The sequence of events in the district court raises a question as to our appellate jurisdiction. Varhol did not file his notice of appeal until after the district court denied his new trial motion--fifty-nine days after the clerk entered judgment on the jury's verdict. See Fed.R.Civ.P. 58. Amtrak is not an agency of the United States, so Fed.R.App.P. 4(a) required Varhol to file his notice of appeal "within 30 days after the date of the entry of judgment." The Supreme Court and this court have repeatedly emphasized that a timely notice of appeal is "mandatory and jurisdictional." E.g., Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61, 103 S.Ct. 400, 403, 74 L.Ed.2d 225 (1982) (per curiam); Browder v. Director, Department of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 560-61, 54 L.Ed.2d 521 (1978); Parke-Chapley Constr. Co. v. Cherrington, 865 F.2d 907, 908-09 (7th Cir.1989); cf., Sonicraft, Inc. v. NLRB, 814 F.2d 385 (7th Cir.1987). This means what it says: if an appellant does not file his notice of appeal on time, we cannot hear his appeal.

If a party files a timely motion for a new trial under Fed.R.Civ.P. 59(a), the time for filing a notice of appeal from the underlying judgment does not begin to run until the district court enters judgment denying the motion. Fed.R.App.P. 4(a)(4). But Varhol's new trial motion was not timely, even though he filed his motion within the twenty-one days the district court gave him. Rule 59(b) provides that "[a] motion for a new trial shall be served not later than 10 days after the entry of the judgment." Rule 6(b) provides that a district court may not extend the time for filing any Rule 59 motion. Since the trial judge could not extend the time to file the new trial motion, Varhol's new trial motion was untimely and, according to Rule 4(a)(4), should not have tolled the time for filing his notice of appeal.

There is, however, a narrow exception to the general rule prohibiting an untimely appeal. This exception, known as the "unique circumstances" doctrine, originated in Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215, 83 S.Ct. 283, 9 L.Ed.2d 261 (1962) (per curiam). In Harris, the district court, acting before the 30-day appeal period had ended, granted

Page 1562

the losing party's motion under then-Fed.R.Civ.P. 73(a) to extend the time to file its notice of appeal. (Fed.R.App.P. 4(a)(5) now provides for motions to extend the time to file a notice of appeal; we will discuss Rule 4(a)(5) in more detail below.) This court dismissed the appeal, finding that the circumstances the district court relied upon to grant the extension did not constitute "excusable neglect," as the rule required. The...

To continue reading