Bissett v. Burlington Northern R. Co., s. 89-5199

• Decision Date: 17 July 1992
• Docket Number: 91-2868,Nos. 89-5199,s. 89-5199
• Citation: 969 F.2d 727
• Parties: Steven BISSETT and David Westergren, Appellants, v. BURLINGTON NORTHERN RAILROAD COMPANY, Appellee. David WESTERGREN, Appellant, v. BURLINGTON NORTHERN RAILROAD COMPANY, a corporation, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 727

969 F.2d 727

Steven BISSETT and David Westergren, Appellants, v. BURLINGTON NORTHERN RAILROAD COMPANY, Appellee.

David WESTERGREN, Appellant, v. BURLINGTON NORTHERN RAILROAD COMPANY, a corporation, Appellee.

Nos. 89-5199, 91-2868.

United States Court of Appeals,

Eighth Circuit.

Submitted March 9, 1992.

Decided July 17, 1992.

Stephen S. Eckman, Minneapolis, Minn., argued, for appellants.

Megan K. Ricke, St. Paul, Minn., argued, for appellee.

Before JOHN R. GIBSON, LOKEN, and HANSEN, Circuit Judges.

HANSEN, Circuit Judge.

This consolidated appeal follows two trials involving claims brought by Steven Bissett and David Westergren under the Federal Employers' Liability Act (FELA), 45 U.S.C. § 51 et seq., against their employer, Burlington Northern Railroad Company (BN), for injuries resulting from the same accident. Bissett and Westergren raise numerous issues on appeal. We affirm.

I. BACKGROUND

On July 11, 1986, Bissett and Westergren were seated in the caboose of their employer's train when the train slowed for a crew change. Although usually the train does not come to a complete stop for the crew change, it did so on this day. Appellants allege that they were injured by a sudden movement of the caboose that resulted from the slack action between the train cars during the stop and start. Based upon these events, Bissett and Westergren sued BN for damages. The court ¹ bifurcated the trial because Westergren's injuries had not yet stabilized. All issues were tried in the first trial except for the issue of Westergren's damages, which was tried in the second trial. At the first trial, the jury returned a special verdict attributing 51% of the causal fault for the accident to Westergren and 49% to BN and a special verdict attributing 40% of the causal fault for Bissett's injuries to Bissett and 60% to BN. The jury awarded Bissett $50,000 in damages. In the second trial, ² the jury awarded Westergren $151,571 in damages.

II. DISCUSSION

A. BIFURCATION OF THE TRIAL

Appellants first argue that the court erred in bifurcating the trial. A district court's decision to bifurcate a trial should only be reversed on a finding of a clear abuse of discretion. O'Dell v. Hercules, Inc., 904 F.2d 1194, 1202 (8th Cir.1990). Westergren maintains that the jury should have had the benefit of the evidence of his injuries when it decided the issue of liability. BN responds that evidence was submitted to the jury that Westergren underwent at least one surgery on his back following the incident in question and that the bifurcation issue was not preserved for appeal. We need not determine whether the issue was preserved for appeal because we find no abuse of discretion by the district court's separation of the issue of Westergren's damages from the other issues on account of Westergren's unstable medical condition.

B. FIRST TRIAL

Appellants next assert that the district court made numerous errors in determining the admissibility of evidence in the first trial. Appellants claim that the court erred in admitting a video of a re-enactment of the accident, in excluding evidence of two prior "similar" incidents, in excluding a statement by Claims Agent Renny, and in the admission of limited medical evidence regarding Westergren. "We have held that 'the district court has a large amount of discretion over the admissibility of evidence in FELA cases.' " Paul v. Missouri Pac. R.R. Co., 963 F.2d 1058, 1061-62 (8th Cir.1992) (quoting Naylor v. St. Louis S.W. R.R. Co., 847 F.2d 1305, 1307 (8th Cir.1988)). Having carefully reviewed the record, we are unpersuaded by appellants' arguments of error and find that the district court did not abuse its discretion in any of the contested evidentiary rulings.

The next issue raised by appellants is that the jury instruction regarding foreseeability was erroneous. First, appellants assert that foreseeability is not an element in a FELA action. The Supreme Court has expressly stated, however, that "reasonable foreseeability of harm is an essential ingredient of [FELA] negligence." Gallick v. Baltimore & Ohio R.R. Co., 372 U.S. 108, 117, 83 S.Ct. 659, 665, 9 L.Ed.2d 618 (1963). Next, appellants claim that the instruction as given incorrectly stated the law. The trial court has broad discretion in the form and language used in instructions to the jury. Cope v. Burlington N. R.R. Co., 907 F.2d 67, 70 (8th Cir.1990). We review the jury instructions to determine "whether, taken as a whole, they are confusing or misleading in presenting the applicable principles of law." Id. (citation omitted). In this case, the court instructed the jury that "defendant's duties are measured by what is reasonably foreseeable under the circumstances, by what in the light of the facts then known the railroad should have reasonably anticipated." Appellants argue that the instruction should not be limited to the facts then known by defendant but also should include the facts that defendant by the exercise of due care should have known. This court has previously characterized a jury instruction that was essentially the same as the one in question here "as not a model one." Chicago & N.W. Ry. Co. v. Rieger, 326 F.2d 329, 336 (8th Cir.), cert. denied, 377 U.S. 917, 84 S.Ct. 1182, 12 L.Ed.2d 186 (1964) (discussing Chicago, Rock Island & Pac. R.R. Co. v. Lint, 217 F.2d 279 (8th Cir.1954)). While not perfect, we found that such an instruction is a "substantially correct statement[ ] of applicable law." Lint, 217 F.2d at 285. Therefore, we find that the court did not abuse its discretion with respect to the foreseeability jury instruction.

Appellants also contend that their motions for new trial should have been granted because the jury's verdict with respect to the contributory negligence of the appellants and the division of causal fault is against the weight of the evidence. "When reviewing a jury verdict to decide whether it is against the weight of the evidence, the district court conducts its own review of the evidence to determine whether a miscarriage of justice has occurred." Peterson by Peterson v. General Motors Corp., 904 F.2d 436, 439 (8th Cir.1990) (citation omitted). "The denial of a motion for new trial on this basis is 'virtually unassailable on appeal,' and perhaps should not be reviewable at all by an appellate court." Id. at 440 (citations omitted). Appellants correctly assert that BN "cannot rely solely on the credibility of plaintiff's testimony to establish contributory negligence." Birchem v. Burlington N. R.R. Co., 812 F.2d 1047, 1049 n. 4 (8th Cir.1987) (citation omitted). The contributory negligence claims, however, were supported by evidence such as the medical testimony indicating that Bissett did not properly brace himself and by Westergren's own testimony that implies that he did not brace himself. The district court stated that the jury's findings "were amply supported by the evidence." We find that the district court did not err in denying appellant's motion for new trial.

C. SECOND TRIAL

The second trial only involved the issue of Westergren's damages. With respect to the second trial, Westergren submits that several evidentiary errors occurred, that the court improperly failed to instruct on mitigation of damages, that the court improperly rejected Westergren's request for a special verdict form, and that the damages award was not supported by the evidence.

Westergren raises three issues regarding the district court's evidentiary rulings in the second trial. First, Westergren asserts that the court abused its discretion by allowing the testimony of BN's medical expert to be admitted without the proper foundation and by allowing the expert to give his testimony out of order. We do not find the court abused its discretion in determining that the proper foundation had been laid and in allowing BN's medical expert to testify out of order in this case. The second argument raised regarding the second trial is that the court abused its discretion in excluding testimony of a co-employee's testimony regarding the railroad's layoff practices. Again we find no abuse of discretion and no prejudice by the court's evidentiary ruling.

The third issue raised with respect to the second trial is a much closer question. Westergren argues that the court erred with respect to evidentiary rulings and jury instructions regarding the defense of failure to mitigate damages. Just before trial, the court denied BN's motion to amend its answer to include the defense of mitigation of damages. At the trial, however, BN was allowed to introduce evidence of the wages of its clerks and dispatchers and of its suggestions to Westergren's counsel that Westergren apply for those jobs. Westergren asserts that the admission of such evidence was erroneous. Westergren also claims the lack of jury instructions on the issue of mitigation of economic damages and the burden of proof constituted reversible error because the evidence regarding mitigation of damages had been admitted. BN asserts that the evidence regarding the economic damages was properly admitted because it went to the issue of causation.

To prove causation of damages in a FELA action, plaintiff must establish injuries that "result[ed] in whole or in part" from the employer's actions. 45 U.S.C. § 51; Naylor v. St. Louis S.W. R.R. Co., 847 F.2d 1305, 1306 (8th Cir.1988). "The plaintiff need only prove that 'employer negligence played any part, even the slightest, in producing the injury ... for which damages are sought.' " Paul v. Missouri Pac. R.R. Co., 963 F.2d 1058, 1061 (8th Cir.1992) (quoting Rogers v. Missouri Pac. R.R., 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493 (1957)).

Damages for the injury of loss of earning capacity may be recovered in a FELA action. See Flanigan v. Burlington N. Inc., 632 F.2d 880, 885 (8th Cir.1980), cert. denied, 450 U.S. 921, 101 S.Ct. 1370, 67 L.Ed.2d 349 (1981). "Earning capacity means the potential for earning...