BNSF Ry. Co. v. Nichols

• Decision Date: 20 September 2012
• Docket Number: No. 02–10–00375–CV.,02–10–00375–CV.
• Citation: 379 S.W.3d 378
• Parties: BNSF RAILWAY COMPANY, Appellant v. Ronald NICHOLS, Appellee.
• Court: Texas Court of Appeals

379 S.W.3d 378

BNSF RAILWAY COMPANY, Appellant

v.Ronald NICHOLS, Appellee.

No. 02–10–00375–CV.

Court of Appeals of Texas, Fort Worth.

June 21, 2012.

Rehearing Overruled Sept. 20, 2012.

Debora B. Alsup, Danley K. Cornyn, Thompson & Knight LLP, Austin, TX, Douglas W. Poole, McLeod, Alexander, Powel & Apffel, P.C., Galveston, TX, for Appellant.

John W. Tavormina, Steve Young, Tavormina & Young, L.L.P., Houston, TX, Scotty MacLean, Michael Henry, MacLean Law Firm, Fort Worth, TX, for Appellee.

PANEL: LIVINGSTON, C.J.; DAUPHINOT and WALKER, JJ.

OPINION

TERRIE LIVINGSTON, Chief Justice.

This is an appeal from a jury verdict in favor of Ronald Nichols in his Federal Employer's Liability Act (FELA) suit against BNSF Railway Company.¹ In three issues, BNSF contends that there is no evidence that Nichols's degenerative disc disease was caused by getting on and off moving railcars, that the trial court erroneously denied BNSF's requested jury instructions on general and specific causation, and that the jury's negligence finding is not supported by the evidence because a cumulative trauma injury was not foreseeable. We affirm.

Background

Nichols worked as a switchman between 1979 and 1995.² A switchman separates railcars from a train coming into the yard and moves them to different tracks based on their ultimate destination. While Nichols was employed as a switchman, he was required to mount and dismount moving railcars about twenty times per day on a slow day, or thirty to thirty-five times on a busy day.³ He was trained in doing so safely and was provided a rule book describing how to do so. Nichols became an engineer in 1995 and from that time until 2007 no longer mounted and dismounted moving rail cars.

In 2004, Nichols began having knee pain; in conjunction with his treatment, the doctor took a lumbar x-ray of Nichols's spine, which showed no abnormalities. Nichols began having neck and shoulder pain in 2005 and went to see a different doctor in 2006. Because an MRI of his neck showed some disc herniation and degeneration, that doctor prescribed Advil.

In 2007, Nichols began seeing Dr. Dan Eidman for his neck and back pain, and he eventually had surgery to repair the discs in his neck. Nichols stopped working for BNSF that same year; Dr. Eidman had already “pulled [him] out” of work before the surgery.

Nichols sued BNSF under FELA, alleging that he had suffered “cumulative trauma injuries” because of BNSF's negligence in allowing him to “mount and dismount moving equipment.” A jury awarded Nichols $1,560,740, including an award of $399,000 for past medical expenses; the trial court granted a motion to exclude the past medical expenses and rendered judgment for Nichols for $1,163,960.⁴

Causation

In its first issue, BNSF contends that there is no evidence that getting on and off moving equipment (GOOME) caused Nichols's injuries. Included in BNSF's discussion of its first issue is the argument that the testimony of Nichols's expert, Dr. Eidman, was unreliable.

Applicable Law

Under FELA, every railroad engaging in interstate commerce is liable in damages to any employee injured during his employment when such injury results in whole or in part from the railroad's negligence or by reason of any defect or insufficiency due to its negligence. See45 U.S.C.A. § 51 (West 1988); Union Pac. R.R. v. Williams, 85 S.W.3d 162, 165 (Tex.2002); Neloms v. BNSF Ry., No. 02–09–00281–CV, 2011 WL 944434, at *1 (Tex.App.-Fort Worth Mar. 17, 2011, no pet.) (mem. op.). To prevail on a FELA claim, a plaintiff must show that the railroad did not use reasonable care when it could have reasonably foreseen harm. Union Pac., 85 S.W.3d at 165–66;Neloms, 2011 WL 944434, at *2. The defendant's duty is “measured by what a reasonably prudent person would anticipate as resulting from a particular condition.” Union Pac., 85 S.W.3d at 166 (quoting Gallick v. Balt. & Ohio R.R., 372 U.S. 108, 118, 83 S.Ct. 659, 665–66, 9 L.Ed.2d 618 (1963)).

The test for causation under FELA is more relaxed than the common law standard. CSX Transp., Inc. v. McBride, –––U.S. ––––, ––––, 131 S.Ct. 2630, 2636, 180 L.Ed.2d 637 (2011); see Union Pac., 85 S.W.3d at 168. The test of causation under FELA is whether the railroad's negligence “played any part, even the slightest, in producing the injury or death for which damages are sought.” CSX Transp., Inc., 131 S.Ct. at 2636, 2644 (citing Rogers v. Mo. Pac. R.R., 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493 (1957)); Union Pac., 85 S.W.3d at 168;Neloms, 2011 WL 944434, at *2. Despite the lower burden under FELA, a plaintiff still bears the burden of presenting evidence from which a jury could conclude the existence of a probable or likely causal relationship as opposed to merely a possible one. Abraham v. Union Pac. R.R., 233 S.W.3d 13, 17 (Tex.App.-Houston [14th Dist.] 2007, pet. denied) (citing Edmonds v. Ill. Cent. Gulf R.R., 910 F.2d 1284, 1288 (5th Cir.1990)), cert. denied,552 U.S. 1312, 128 S.Ct. 1900, 170 L.Ed.2d 749 (2008). The causal link between an event sued upon and the plaintiffs' injuries must be shown by competent evidence. Abraham, 233 S.W.3d at 17.

Although Nichols's claim is pursuant to a federal statute, the trial court must follow state procedure in determining the reliability of expert testimony. Id. at 18;see Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406 (Tex.), cert. denied,525 U.S. 1017, 119 S.Ct. 541, 142 L.Ed.2d 450 (1998). To be admissible into evidence, an expert witness's testimony must, among other things, be reliable. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 565 (Tex.1995). The expert must be qualified, and the testimony must be relevant and be based on a reliable foundation. Id. at 556. Expert testimony is unreliable if (1) it is not grounded in the methods and procedures of science and is thus no more than subjective belief or unsupported speculation, or (2) there is too great an analytical gap between the data upon which the expert relies and the opinion he offers. Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 800 (Tex.2006). The purpose of the reliability determination is not to decide whether the expert's conclusions are correct, but only whether the analysis used to reach them is reliable. Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 629 (Tex.2002).

EvidenceNichols

During Nichols's testimony, his attorney played a video that showed railroad workers engaged in GOOME that was filmed for Burlington Northern (also a predecessor of BNSF) in 1992. Nichols testified that he did the same thing that the person in the video did. According to Nichols, the step down from the cars to the ballast (the gravel on which the track sits) was “a good” two feet off the ground. Nichols stated that stepping onto ballast was not like stepping onto flat ground and that “[y]ou could twist one way or another like stepping off on a golf ball.” Nichols said that he had never been hurt doing so, however. Nichols said that after stepping down, he had to take a few steps, depending on how fast the cars had been moving.

Nichols also testified from a 1992 report admitted into evidence; the report is from an ergonomics manager at Burlington Northern, Bill Barbre. For the report, Barbre analyzed video recordings of workers engaged in GOOME and attempted to estimate the total body forces that would occur during GOOME at different speeds. Nichols testified that he had stepped off moving cars at as much as ten miles per hour, which is higher than the eight miles per hour maximum that Barbre used for his calculations.⁵ Nichols testified from a chart attached to the report that total forces on a body from getting off a moving car at four miles per hour were 8.8 times a person's body weight, at six miles per hour were 11.2 times a person's body weight, and at eight miles per hour were fifteen times a person's body weight.⁶ Barbre characterized the total body forces of fifteen times a person's body weight at eight miles per hour as “extreme.” For a two hundred pound man, this would amount to three thousand pounds of total body force.

Although the Santa Fe stopped GOOME in 1993, Nichols testified that the practice did not cease in the Temple yard where he worked until 1995. According to Nichols, production slowed when the practice was stopped in 1995; he did not believe the practice was allowed so long for the convenience of the workers but to speed up production. Nichols testified that although the Santa Fe Middle Division issued a safety circular in 1988 stating that “[g]etting on or off moving equipment should be avoided whenever possible,” the Temple yard was not included in that division, and the Temple yard did not prohibit or discourage GOOME until 1995.⁷

Lawrence Fleischer

Lawrence Fleischer, the BNSF corporate representative and an ergonomist, testified that the only company document he could find regarding why GOOME was stopped was a notice to employees from the Chairman, President, and CEO Jerry Grinstein and the Executive Vice President of Operations Jack Chain that the company (Burlington Northern at the time) was ceasing the practice of GOOME for safety reasons. The notice says that Burlington Northern is ceasing the practice of GOOME because it is an inherently dangerous work practice. But Fleischer testified that GOOME is not inherently dangerous. Fleischer was familiar with an Association of American Railroads ⁸ study showing that during 1979–86, getting on and off equipment was the main cause of lost-time injuries to railway workers. However, Fleischer clarified that the report does not specify whether the injuries were acute or cumulative trauma injuries. Moreover, Fleischer said that it is hard to tell whether a chart in the report showing injuries occurring from mounting and dismountingequipment applies to moving or stopped equipment, or both.

According to Fleischer, the Barbre study was initiated to convince the railyard workers of the wisdom of discontinuing GOOME....