Bean v. Csx Transp.

• Decision Date: 23 October 2003
• Docket Number: No. 01-CV-1047 (DRH).,01-CV-1047 (DRH).
• Citation: 289 F.Supp.2d 277
• Parties: Stephen B. BEAN, Plaintiff, v. CSX TRANSPORTATION, Defendant.
• Court: U.S. District Court — Northern District of New York

289 F.Supp.2d 277

Stephen B. BEAN, Plaintiff, v. CSX TRANSPORTATION, Defendant.

No. 01-CV-1047 (DRH).

United States District Court, N.D. New York.

October 23, 2003.

COPYRIGHT MATERIAL OMITTED

O'Connell & Aronowitz (Stephen R. Coffey, Esq., Andrew R. Safranko, Esq., Aaron A. Louridas, Esq., of Counsel), Albany, NY, for Plaintiff.

McNamee, Lochner, Titus & Williams, P.C. (Scott A. Barbour, Esq., of Counsel), Albany, NY, for Defendant.

MEMORANDUM-DECISION AND ORDER

HOMER, United States Magistrate Judge.

Plaintiff Stephen B. Bean ("Bean"), an employee of defendant CSX Transportation ("CSX"), brought this action under the Federal Employers' Liability Act (FELA), 45 U.S.C. §§ 51-60, alleging that the negligence of CSX caused an injury to his back on May 3, 2000. A five-day jury trial concluded on April 2, 2003 with an award of damages to Bean in a gross amount of $1,540,082.00 with a finding that Bean was 35% contributorily negligent. Judgment was entered for Bean against CSX in a total amount of $1,001,053.30 on April 4, 2003. Presently pending is the motion of CSX for (1) judgment as a matter of law pursuant to Fed.R.Civ.P. 50(b), (2) a new trial or remittitur as to damages for past and future pain and suffering pursuant to Fed.R.Civ.P. 59, and (3) a stay of execution to enforce the judgment pending disposition of this motion pursuant to Fed. R.Civ.P. 62(b).¹ Docket No. 59. Bean opposes the motion. Docket Nos. 68, 69. For the reasons which follow, CSX's motion is denied in all respects.

I. Background

Bean, now forty-seven, commenced employment with the predecessor railroad to CSX in 1976 and remained steadily employed there until the accident at issue herein on May 3, 2000. On that date, Bean's duties at the Selkirk, New York railroad yard included the maintenance and repair of signal devices. Bean was directed that day to repair a signal at the site of a car derailment. He drove to the site in a 1996 Freightliner boom truck. The truck consisted of a flat-bed attached approximately four feet above the ground to the chassis and cab of the truck and with a crane-type device on the bed to assist in lifting and suspending heavy objects. See, e.g., Barbour Aff. (Docket No. 51) at Ex. C. Bean performed his repair duties from the flat-bed of the boom truck and began to descend from the flat-bed using handrails and steps affixed to the flat-bed and the truck cab. As he stepped off the flat-bed to the first step, Bean missed the step, lost his grip, and fell to the ground, landing on his back. As discussed in greater detail in subsection II(B) infra, the fall seriously injured Bean's back, requiring surgery and leaving him permanently disabled. This action followed.

II. Discussion

CSX's motion presents two issues: whether the Court erred in evidentiary rulings and jury instructions as to safety standards for the boom truck ladder and whether the award of damages for pain and suffering was excessive.

A. Safety Standards

1. Legal Standard

A motion for judgment as a matter of law under Rule 50 should be granted when "there is no legally sufficient evidentiary basis for a reasonable jury to find for [the nonmoving] party on that issue." Fed. R.Civ.P. 50(a)(1). The standard under Rule 50 "mirrors" that for a motion for summary judgment under Fed.R.Civ.P. 56. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). On a motion under Rule 50, a court must consider all evidence in the record and not simply the evidence favorable to the nonmovant. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 149, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Tolbert v. Queens Coll., 242 F.3d 58, 70 (2d Cir.2001). "In doing so, however, the court must draw all reasonable inference in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves, 530 U.S. at 149, 120 S.Ct. 2097 (citations omitted). Thus, in reviewing the entire record, a court should consider only that evidence favorable to the nonmoving party and any evidence supporting the moving party which is uncontradicted and unimpeached. Id.

The standard for granting a new trial under Rule 59 is less demanding. "[U]nlike a motion for judgment as a matter of law, a trial judge considering a motion for a new trial is free to weigh the evidence himself and need not view it in the light most favorable to the verdict winner." United States v. Landau, 155 F.3d 93, 104 (2d Cir.1998) (internal quotations and citation omitted); see also Funk v. F & K Supply, Inc., 43 F.Supp.2d 205, 224 (N.D.N.Y.1999) (McAvoy, J.). Thus, "`a motion for a new trial may be granted even if there is substantial evidence to support the jury's verdict.'" Caruolo v. John Crane, Inc., 226 F.3d 46, 54 (2d Cir.2000) (quoting Landau, 155 F.3d at 104). A court should grant a new trial if "convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice." Caruolo, 226 F.3d at 54 (internal quotations and citation omitted).²

2. Appropriate Standards

At trial, Bean asserted that the safety standards applicable to the boom truck handholds, handrails and steps [hereinafter the ladder] were set forth in the regulations of the Occupational Safety and Health Administration (OSHA) at 29 C.F.R. § 1910.27. CSX asserted that the applicable safety standards for the ladder were those contained in the regulations of the United States Department of Transportation (USDOT) at 49 C.F.R. pt. 399. CSX contends that the Court erred when it (1) permitted Bean to offer evidence that the boom truck ladder violated the OSHA safety standards, and (2) precluded the jury from considering evidence that the boom truck ladder complied with the USDOT safety standards.

According to Bean's expert witness, Ernest J. Gailor, P.E., the boom truck ladder failed to comply with the OSHA safety standards for fixed ladders contained in 29 C.F.R. § 1910.27 in several respects. The deficiencies included the failure of the handholds to extend 42" above the flat-bed, the handholds did not have the same spacing as the siderails of the ladder, and the distance between the rungs of the ladder exceeded 12" and were not of uniform distance. Gailor Trial Tr. (Docket No. 68, Ex. B) at 14-42. The OSHA regulations apply to the boom truck ladder unless the OSHA standards have been preempted by the regulations of another federal agency. 29 U.S.C. § 653(b)(1) ("Nothing in this chapter shall apply to working conditions of employees with respect to which other Federal agencies ... exercise statutory authority to prescribe or enforce standards or regulations effecting occupational safety and health."). To "exercise" statutory authority requires more than the mere existence of such authority by another federal agency. Such authority must be actually exercised for the OSHA regulations to be preempted. See Chao v. Mallard Bay Drilling, Inc., 534 U.S. 235, 241, 122 S.Ct. 738, 151 L.Ed.2d 659 (2002).

As at trial, CSX contends that the USDOT regulations preempted the OSHA standard and provided the appropriate standard by which to assess the boom truck ladder. Under the Motor Carrier Safety Act, 49 U.S.C. § 31136, USDOT was authorized to enact "regulations on commercial motor vehicle safety." Such regulations were enacted in 49 C.F.R. §§ 350-399. Subpart L of part 399 "prescribes step, handhold and deck requirements on commercial motor vehicles." 49 C.F.R. § 399.201 ("Purpose and scope"). According to CSX's expert witness, Robert L. MacFarland, a motor carrier safety consultant, the boom truck ladder complied with the USDOT safety standards for ladders contained in 49 C.F.R. § 399.207 in all material respects. MacFarland Trial Tr. (Docket No. 68, Ex. C) at 6-32.

Before and during trial, both parties moved to preclude, and objected to, the testimony of the other's expert witness regarding the applicable safety regulation for the boom truck ladder. Before trial, the Court denied the motions to preclude of both parties on the ground that on the record presented on those motions, it could not be reasonably determined which standard applied to the boom truck.³ However, during the cross-examination of CSX's expert, the expert agreed that the boom truck here did not meet the definition of vehicles covered by the USDOT regulation. MacFarland Trial Tr. at 32-36. Bean's motion to strike the testimony of CSX's expert regarding the USDOT regulation was then granted and the jury was instructed, at that time and at the close of the case, to disregard testimony concerning the USDOT regulation and that they could consider the OSHA regulation.⁴

Striking the testimony of CSX's expert regarding the USDOT safety standard, instructing the jury that it could consider only the OSHA standard, and denying CSX's motion to preclude and strike the testimony of Bean's expert regarding the OSHA standard were not erroneous rulings. Clearly, the OSHA standard was applicable in the absence of a preemptive regulation issued by another federal agency. USDOT issued regulations in this area governing commercial motor vehicles, but those regulations did not apply to the boom truck here. This conclusion is compelled for several reasons.

First, the plain language of both the USDOT authorizing statute and the regulation excludes the boom truck here from the scope of their coverage. That statute directs that "the Secretary of Transportation shall prescribe regulations on commercial motor vehicle safety." 49 U.S.C. § 31136(a) (emphasis added). "Commercial motor vehicle" is defined in § 31132(1) as "a self-propelled or towed vehicle used on the highways in interstate commerce to transport passengers or property, if the vehicle [meets certain additional requirements.]" CSX made no showing here that the boom truck in question either was used to transport property of any kind or that it met any of the additional requirements of the definition. Thus, the boom truck was not within the...