Boren v. Burlington Northern & Santa Fe Ry.

• Decision Date: 15 January 2002
• Docket Number: No. A-00-894.,A-00-894.
• Citation: 637 N.W.2d 910,10 Neb. App. 766
• Court: Nebraska Court of Appeals
• Parties: Raymond BOREN, Appellee, v. The BURLINGTON NORTHERN & SANTA FE RAILWAY COMPANY, formerly known as Burlington Northern Railroad Company, a Delaware corporation, Appellant.

637 N.W.2d 910

10 Neb. App. 766

Raymond BOREN, Appellee, v. The BURLINGTON NORTHERN & SANTA FE RAILWAY COMPANY, formerly known as Burlington Northern Railroad Company, a Delaware corporation, Appellant.

No. A-00-894.

Court of Appeals of Nebraska.

January 15, 2002.

Rodney M. Confer, of Knudsen, Berkheimer, Richardson & Endacott, L.L.P., and, on brief, Cheryl R. Zwart, Lincoln, for appellant.

Richard J. Dinsmore, Omaha, for appellee.

IRWIN, Chief Judge, and INBODY and CARLSON, Judges.

IRWIN, Chief Judge.

I. INTRODUCTION

The Burlington Northern & Santa Fe Railway Company (Burlington) appeals from a jury verdict in favor of Raymond Boren in his Federal Employers' Liability Act (FELA) action for exposure to toxic chemicals over a period of 30 years while working for Burlington. On appeal, Burlington challenges, inter alia, the trial court's denial of two motions for summary judgment, the trial court's allowance of various expert testimony, the jury instructions given by the trial court, and the trial court's denial of motions for directed verdict and judgment notwithstanding the verdict. For the reasons discussed at length herein, we find no merit to Burlington's assertions on appeal and affirm.

II. BACKGROUND

This case presents, in the context of FELA, what is commonly referred to as a "toxic tort" case. As such, the case is replete with complex medical terminology and railroad terminology, and the record consists of nearly 2,000 pages of testimony, exclusive of exhibits. As much as practicable, we will set forth the relevant background here in as basic terms as possible.

Boren was born in December 1940. Boren began working for the railroad in 1964. Boren initially worked for Burlington Refrigerated Express in Pacific Junction, Iowa, as a laborer, cleaning out railcars and "picking up various things." Boren then became an "apprentice carman," working "in the shadow" of another carman. Boren became a carman in approximately 1971. In that role, Boren was responsible for making sure that "everything was working right" on the railcars, including the mechanics of the refrigeration unit.

In fall 1977, Burlington Refrigerated Express discontinued the refrigeration line in this part of the country, and Boren went to work for Burlington. Boren began with Burlington working at Gibson Yard (Gibson) in Omaha, Nebraska. Gibson was a receiving and departing yard, which included an area for repairing railcars. While working as a carman at Gibson, Boren would straighten handholds and doorsills, make sure all doors on the railcars would close tightly, change brake shoes and wheels, and "repack journals." The record indicates that journals are part of the wheel on railcars and include bearings and weights that are removed and then cleaned with a cleaning solvent and oiled.

Boren testified that each railcar had eight journals and that two or three times per week he worked on cleaning and repacking journals. During these times, Boren would use a 5-gallon bucket of solvent for 2 to 4 hours per railcar. The 5-gallon bucket of solvent would be filled from a larger 55-gallon drum. According to Boren, he was never provided with any protective breathing apparatus, specialty gloves, or education and direction concerning the use of this solvent. Boren testified that using the solvent would cause his hands to get "real chapped and red" and that they would sometimes "split and break open on the ends."

In 1982, Boren transferred from Gibson to the Havelock Shop (Havelock) in Lincoln, Nebraska. While working at Havelock, Boren began transitioning toward doing inspection work. Boren began doing some inspection work, in addition to his regular duties as a carman, in fall 1984. In 1986, Boren began doing inspection work on a full-time basis. In 1990, his full-time inspection job was abolished, and he again did carman duties and some occasional inspection work. He continued doing occasional inspection work at the scales at Havelock until 1992.

In doing inspection work, Boren was required to inspect railcars coming out of the paintshop for defects. Boren checked the couplers that connected the railcars, checked the sides of the railcars, stenciled the load and weight limits on the side of the railcars, checked hatch covers on the railcars, and looked inside the railcars for other defects in the railcar or the paint inside the railcar. Boren inspected railcars that had Marblethane-coated floors and railcars that had been painted on the inside with Polyclutch paint. When inspecting the railcars with Marblethane-coated floors, Boren would open the door and look inside the railcars. When inspecting the Polyclutch-painted railcars, Boren would be required to climb on the roof of the railcar, open a hatch on the roof, and lower his head inside the railcar to inspect the interior. In addition to the inspection of the railcars, Boren would be required to clean stencils by placing them into a tank full of solvent, soaking them, and then cleaning them off with a rag.

Boren also testified to the use of an aerosol to loosen bolts at both Gibson and Havelock. According to Boren, the aerosol was sprayed onto various bolts to loosen them when they could not be cut off the railcars and had to be removed with a wrench. Boren also testified to using a liquid graphite product when removing couplers from the railcars. Boren testified that the liquid graphite would be stirred and then applied onto the couplers with either a brush, stick, or rag.

In February 1993, Boren was hospitalized. Boren testified that his health had generally been "good" prior to the middle of 1992. At that time, he began suffering fatigue. In February 1993, Boren suffered a severe headache, went to see his doctor, and was hospitalized for problems associated with his liver and esophageal varices. After being hospitalized, Boren was off work from February to September 1993. He then returned to work through the end of 1993. Boren underwent surgery in January 1994 to have a distal splenorenal shunt inserted. Boren again returned to work in June 1994. He took a job with Burlington doing full-time inspection work where he was no longer exposed to chemicals.

On March 29, 1996, Boren filed a second amended petition. In the petition, Boren alleged that during his employment with Burlington, he was exposed to a variety of organic chemicals, including 1,1,1-trichloroethane, petroleum distillates, toluene, and xylene. Boren alleged that Burlington was negligent in failing to provide necessary tools and equipment, failing to warn of the dangers presented by the solvents, failing to provide adequate ventilation, and failing to adequately train employees concerning use of the chemicals. Pursuant to FELA, Boren sought compensation for damages he alleged were sustained as a result of his exposure to the various chemicals. Specifically, Boren alleged that he suffered "cirrhosis of the liver and esophageal varices" as a result of his exposures.

On June 18, 1998, Burlington filed its first motion for summary judgment. Burlington offered Boren's deposition and answers to interrogatories, the affidavits of a retired Burlington employee and a doctor, and the deposition of another doctor. In response, Boren offered excerpts from Boren's deposition, Material Safety Data Sheet(s) (MSDS) concerning various chemicals Boren alleged exposure to, medical journals concerning liver damage associated with exposure to the various chemicals, an affidavit from Boren's treating physician, and an article from the National Institute of Occupational Safety and Health (NIOSH). On February 25, 1999, the court denied Burlington's first motion for summary judgment. The court received all the exhibits offered by Burlington and Boren and ruled that there were genuine issues of material fact relative to Burlington's alleged negligence.

On February 18, 2000, Burlington filed its second motion for summary judgment. On February 25, Burlington filed a motion in limine seeking to prevent Boren from presenting evidence concerning various chemicals and MSDS. Another motion in limine, which appears to be substantially identical to the February 25 motion, was filed by Burlington on March 22. Burlington's second motion for summary judgment and motion in limine were both heard by the court at the same time. In support of the motions, Burlington offered depositions of various doctors, documents concerning predecessor entities of the Burlington company, responses to interrogatories, NIOSH documents, medical treatises, and the deposition of an industrial hygiene expert, and Burlington reoffered the evidence presented at the hearing on the first motion for summary judgment. In response, Boren offered the curriculum vitae of various doctors, offered an affidavit indicating what various doctors would be testifying to, and reoffered the evidence presented at the hearing on the first motion for summary judgment. On March 28, the court entered an order denying both motions.

The case came on for trial before a jury on April 3 through 12, 2000. The trial record consists of more than 1,100 pages of testimony, in addition to two videotape depositions which amount to more than 300 additional pages of transcribed testimony. In addition, there are more than 150 exhibits composing 7 additional volumes of record.

During the 8 days of trial, the jury heard testimony concerning Boren's employment history as set forth above. Additionally, the jury heard testimony concerning specific chemicals and specific solvents used by Boren during the course of his employment and heard testimony concerning whether those chemicals caused Boren's liver disease.

Boren testified that when cleaning journals at Gibson, the solvent used was called "Stay-Kleen (sic) or something like that." According to Burlington's counsel, stay-kleen and Safety-Kleen were presumed to be the same thing. Another employee testified that mineral spirits was used in cleaning journals....