Aparicio v. Norfolk & Western Ry. Co.

• Decision Date: 30 May 1996
• Docket Number: No. 95-3068,95-3068
• Citation: 84 F.3d 803
• Parties: Robert C. APARICIO, Plaintiff-Appellant, v. NORFOLK & WESTERN RAILWAY COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

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84 F.3d 803 Robert C. APARICIO, Plaintiff-Appellant,
v.
NORFOLK & WESTERN RAILWAY COMPANY, Defendant-Appellee. No. 95-3068. United States Court of Appeals,
Sixth Circuit. Argued April 29, 1996.
Decided May 30, 1996.

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Mark T. Coulter (argued and briefed), Robert N. Peirce, Jr. & Associates, Pittsburgh, PA, Steve C. Foley, Robert E. Sweeney & Co., Cleveland, OH, for plaintiff-appellant.

David W. Stuckey (argued and briefed), Robison, Curphey & O'Connell, Toledo, OH, for defendant-appellee.

Before: MARTIN and SILER, Circuit Judges; HEYBURN, District Judge. ^*

BOYCE F. MARTIN, Jr., Circuit Judge.

This is an appeal from a decision granting judgment as a matter of law to defendant Norfolk & Western Railway Company after the close of Robert Aparicio's case during the trial of his claim under the Federal Employers' Liability Act, 45 U.S.C. §§ 51-60 (1988). Aparicio appeals the district court's decision granting judgment as a matter of law to Norfolk & Western and raises two other issues on appeal. For the following reasons, we REVERSE in part and AFFIRM in part the decision of the district court and REMAND for retrial.

Beginning in 1976, Aparicio worked as a track maintenance laborer for Norfolk & Western until his resignation in January of 1994. Aparicio worked on the "maintenance of way" crew, and his responsibilities included making repairs to the track and railroad crossings. Aparicio's work required him to work with many types of tools such as air tampers, jack hammers, impact wrenches, claw bars, anchor wrenches, grinders, and spiking guns. Between 1987 and 1990 Aparicio changed duties on the crew, and his primary job during that period was to sit and operate the controls of heavy machinery. After 1990, Aparicio returned to his "hands on" duties as a track maintenance laborer.

As early as 1987, Aparicio visited Dr. John Osborne, complaining of numbness and tingling

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in his right hand. Dr. Osborne recommended conservative treatment and the symptoms resolved themselves. Aparicio returned to work in six weeks and did not have any more difficulty for approximately five years. In late January 1992, Aparicio again sought Dr. Osborne's help regarding pain in both of his hands and wrists. Dr. Osborne referred Aparicio to Dr. Patrick Murray, an orthopedic surgeon, who diagnosed carpal tunnel syndrome. Dr. Murray performed four surgeries on Aparicio for his condition and Aparicio returned to work on May 1, 1992. In September 1993, Aparicio was having pain in his right elbow. Dr. Murray diagnosed epicondylitis ("tennis elbow"). After several months of treatment, Dr. Murray concluded that Aparicio could not return to work. Aparicio has not worked since January 1994.

Aparicio filed suit in May 1993 under Section 51 of the Federal Employers' Liability Act. Section 51 of the Federal Employers' Liability Act provides in pertinent part that:

Every common carrier by railroad while engaging in [interstate or international] commerce ..., shall be liable in damages to any person suffering injury [or death] while he is employed by such carrier in such commerce ... for such injury or death resulting in whole or in part from the negligence of any of the [officers, agents, or employees] of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.

Aparicio's complaint alleged that his injuries were due to his job duties, which exposed him to "excessive and harmful cumulative trauma to his hands, wrists and arms due to the equipment with which he performed his work for the defendant." Aparicio claimed that Norfolk & Western failed to use ordinary care to provide him with a reasonably safe work environment by requiring him to do work in a way that exposed his upper extremities to repetitive trauma. Aparicio further contended that Norfolk & Western was negligent by not evaluating the trauma to his upper body, by not redesigning his job functions or tasks in a more ergonomically sound manner and by not advising him of the risk of developing carpal tunnel syndrome.

Norfolk & Western moved for summary judgment, claiming that Aparicio's action was time-barred by the three-year statute of limitations in Federal Employers' Liability Act actions because Aparicio should have known in 1987 that his injuries were work-related. As discussed below, the district court granted the motion in part and denied it in part. The case proceeded to trial on the theory that Aparicio could recover if the jury found that his 1992 injuries were separate from his 1987 injury to his right hand.

The trial began on December 19, 1994. At the close of Aparicio's case, Norfolk & Western moved for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(a). The district court granted the motion, concluding that the record was "barren of any evidence tending to prove negligence." Aparicio now appeals, challenging the district court's decision to grant judgment as a matter of law to Norfolk & Western, to grant partial summary judgment to Norfolk & Western, and to exclude some testimony evidence.

I.

We review de novo a district court's decision to grant judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(a), Snyder v. Ag Trucking, Inc., 57 F.3d 484, 490 (6th Cir.1995), applying the same standard as did the district court. Phelps v. Yale Security, Inc., 986 F.2d 1020, 1023 (6th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 175, 126 L.Ed.2d 135 (1993). Federal Rule of Civil Procedure 50(a) provides that:

If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law.

Unless otherwise prescribed by law, we have held that a district court should grant a motion for judgment as a matter of law if "there is either a complete absence of proof on the issues or no controverted issues of

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fact upon which reasonable persons could differ." Monette v. AM-7-7 Baking Co., 929 F.2d 276, 280 (6th Cir.1991) (citation omitted). Without weighing the evidence or judging the credibility of witnesses, and drawing all inferences in favor of the non-moving party, a district court usually undertakes to determine whether there is sufficient evidence to permit reasonable jurors to find for the non-moving party. Cook v. American Steamship Co., 53 F.3d 733, 740 (6th Cir.1995) (citation omitted). Where the defendant has moved for judgment as a matter of law at the close of the plaintiff's case, this standard requires the district court to decide whether a reasonable jury could conclude that the plaintiff has not proven an element of his or her case. The "reasonableness" inquiry upon a defendant's motion for judgment as a matter of law is not determined by asking whether the plaintiff has proven his or her case by a preponderance of the evidence because the defendant has not yet presented any proof. Rather, a court looks only to the plaintiff's evidence to make its determination.

A different standard applies in Federal Employers' Liability Act cases. The Supreme Court has held that a jury question is created in a Federal Employers' Liability Act case if

the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes, including the employee's contributory negligence. Judicial appraisal of the proofs to determine whether a jury question is presented is narrowly limited to the single inquiry whether, with reason, the conclusion may be drawn that negligence of the employer played any part at all in the injury or death. Judges are to fix their sights primarily to make that appraisal and, if that test is met, are bound to find that a case for the jury is made out whether or not the evidence allows the jury a choice of other probabilities. The statute expressly imposes liability upon the employer to pay damages for injury or death due "in whole or in part" to its negligence.

Rogers v. Missouri Pac. R.R. Co., 352 U.S. 500, 506-07, 77 S.Ct. 443, 448-49, 1 L.Ed.2d 493 (1957) (footnotes omitted); see also Green v. River Terminal Ry. Co., 763 F.2d 805, 806-07 (6th Cir.1985) (same, quoting Rogers). While the Rogers standard for the quantum of evidence also uses the language of "reasonableness," the content of the Rogers "justify with reason" standard is informed more by the public policy behind the Federal Employers' Liability Act rather than by an abstract notion of "reasonableness." Consequently, no appellate court has approved of applying the customary "reasonableness" standard when a district court is faced with a motion for judgment as a matter of law in a Federal Employers' Liability Act case.

The Supreme Court has observed that Congress, in enacting the Federal Employers' Liability Act, intended it to be a departure from common law principles of liability as a "response to the special needs of railroad workers who are daily exposed to the risks inherent in railroad work and are helpless to provide adequately for their own safety." Sinkler v. Missouri Pac. R.R. Co., 356 U.S. 326, 329, 78 S.Ct. 758, 762, 2 L.Ed.2d 799 (1958); Consolidated Rail Corp. v. Gottshall, --- U.S. ----, ----, 114 S.Ct. 2396, 2404, 129 L.Ed.2d 427 (1994) (stating that through the Federal Employers' Liability Act "Congress crafted a federal remedy [for railroad workers] that shifted part of the 'human overhead' of doing business from employees to their employers") (citations omitted). This Court has called the Federal Employers' Liability Act a "remedial and...