Burbridge v. Union Pac. R.R. Co., ED 98719.

• Decision Date: 19 November 2013
• Docket Number: No. ED 98719.,ED 98719.
• Citation: 413 S.W.3d 649
• Parties: Phillip K. BURBRIDGE, Appellant, v. UNION PACIFIC RAILROAD COMPANY and Harsco Corporation, Respondents.
• Court: Missouri Court of Appeals

413 S.W.3d 649

Phillip K. BURBRIDGE, Appellant,

v.UNION PACIFIC RAILROAD COMPANY and Harsco Corporation, Respondents.

No. ED 98719.

Missouri Court of Appeals,

Eastern District,

Division Three.

Sept. 24, 2013. Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 19, 2013.

John T. Papa, Callis, Papa, Hale & Szewczyk, P.C., Granite City, IL, for Appellant.

Mary A. Mellow, Mark A. Prost, Timothy C. Sansone, Sandberg Phoenix & von Gontard P.C., St. Louis, MO, for Respondents.

KURT S. ODENWALD, Judge.

Introduction

Phillip Burbridge (“Burbridge”) appeals from the judgment of the trial court in favor of Union Pacific Railroad Company (“Union Pacific”) and Harsco Corporation (“Harsco”) (collectively, “Respondents”). Specifically, Burbridge asserts that the trial court erred in denying his motion for a new trial because (1) the damages instruction given to the jury was misleading; (2) Respondents failed to present sufficient evidence to warrant submission of the mitigation of damages instruction; and (3) the jury's verdict in favor of Respondents was against the manifest weight of the evidence. We find that the trial court's submission of the damages instructions did not prejudice Burbridge. We further find that the verdict in favor of Respondents is not against the manifest weight of the evidence, and affirm the judgment of the trial court.

Factual and Procedural History

The record, viewed in the light most favorable to the verdict, contains the following facts:

On February 15, 2006, Burbridge was working as a conductor for Union Pacific aboard a locomotive traveling from East St. Louis, Illinois, to Jefferson City, Missouri. As the locomotive passed through Pacific, Missouri, Burbridge saw smoke, flames, and dust coming from a Harsco rail grinder car on the adjacent track. Once his locomotive cleared the smoke and dust, Burbridge saw a beam extending from the rail grinder car and heading for the windshield of his locomotive. The beam collided with Burbridge's locomotive, shattering its windshield and causing glass and debris to fly into the cabin where Burbridge was working. Burbridge testified that glass from the shattered windshield struck him on his face and body and covered his clothing.

A few hours later, a manager from Union Pacific arrived at the scene of the accident. Burbridge told the manager that he felt a tingling sensation on his face and around his eyes. The manager drove Burbridge to an urgent care center in Washington, Missouri, where he was examined by Dr. Anne Elizabeth Mohart (“Dr. Mohart”), a certified emergency medicine physician. Burbridge told Dr. Mohart about the train accident and explained that he was concerned he may have glass fragments from the shattered windshield in his eyes. Burbridge complained of some pain and a tingling sensation on his face and in the corners of his eyes. Dr. Mohart stained Burbridge's eyes with fluorescein, which highlights any foreign bodies, defects, or scratches that may exist in the cornea. Dr. Mohart then examined Burbridge's eyes using a magnifying glass and an ultraviolet light and found no foreign bodies in Burbridge's eyes nor any other abnormalities or defects. Dr. Mohart further found that Burbridge had 20/20 uncorrected vision and did not place him on any work restrictions.

Following the accident, Burbridge took approximately seven days of vacation. Burbridge testified that he took vacation because the accident was a troubling experience, and he was frightened and unnerved by it. Burbridge then returned to work on February 24, 2006.

After returning to work, Burbridge continued to experience eye discomfort and sought treatment from numerous eye care physicians, including three optometrists (Dr. Erin Sullivan, Dr. Kathleen Doan, and Dr. Scott Tomasino) and one ophthalmologist (Dr. Mason Bias). Burbridge told each of these physicians about the train accident and explained that since the accident, he had experienced eye irritation and a foreign body sensation in his right eye. None of these physicians found any foreign bodies in Burbridge's eyes. None of these physicians told Burbridge that he suffered an eye injury as a result of the train accident. Drs. Doan, Tomasino, and Bias each diagnosed Burbridge with dry eye syndrome and told him he could safely return to work.

When Burbridge complained that his eye discomfort persisted, Union Pacific directed Burbridge to see Dr. Ranjan Malhotra, an ophthalmologist and corneal specialist. Burbridge saw Dr. Malhotra in September 2006, at which time Dr. Malhotra found no foreign bodies, abrasions, or abnormalities in Burbridge's cornea. Dr. Malhotra also diagnosed Burbridge with dry eye syndrome and told Burbridge he could return to work. In November 2006, Burbridge sought an additional opinion from Dr. Navin Amin, an ophthalmologist. Dr. Amin examined Burbridge's eyes and found no foreign bodies or abrasions. Like Dr. Malhotra, Dr. Amin diagnosed Burbridge with dry eye syndrome, and told Burbridge he could return to work.

In December 2006, Burbridge next sought the opinion of Dr. Bruce Cohen, another ophthalmologist. Following a thorough examination of Burbridge's eyes, Dr. Cohen made a primary diagnosis of moderately severe dry eye syndrome and prescribed Restasis to treat that condition. Dr. Cohen also diagnosed Burbridge with blepharitis, an eyelid condition that causes redness of the eyelids, irritation, itching, sensitivity to light and smoke, and blurry vision.

Burbridge next saw ophthalmologist and corneal specialist Dr. Anthony Lubinewski in July 2007. Dr. Lubinewski diagnosed Burbridge with dry eye syndrome and blepharitis. Dr. Lubinewski later testified by deposition that dry eye syndrome and blepharitis could both explain Burbridge's foreign body sensation, as that is a common symptom of both conditions. Dr. Lubinewski further testified that neither of those conditions is caused by trauma to the eye.

On February 13, 2009, Burbridge filed suit against Respondents alleging that Burbridge suffered damages as a result of the train accident. Count I of the petition was brought against Union Pacific pursuant to the Federal Employers' Liability Act (“FELA”). Count II was voluntarily dismissed and is irrelevant to this appeal. Count III alleged negligence against Harsco.

The court held a jury trial beginning on February 28, 2012. In an effort to expedite the trial, the parties agreed to submit the issues of negligence and agency to the trial court for determination. On February 29, 2012, the trial court entered an order finding Harsco negligent and that Harsco was acting as an agent of Union Pacific. The trial court then instructed the jury that the remaining issues left for the jury's determination “are whether the accident caused any injuries to Mr. Burbridge, and if so, what are the fair and reasonable damages that were caused by the accident.”

At trial, Dr. Cohen testified that although his initial diagnoses for Burbridge's eye pain were dry eye syndrome and blepharitis, sometime around December 2009, he concluded that Burbridge's symptoms were also compatible with recurrent corneal erosion (“RCE”) syndrome.¹ Dr. Cohen explained that RCE occurs when a patient has a deep initial abrasion and the surface cells on the eye do not properly heal. If the patient's eyes dry out in the middle of the night, those surface cells will attach to the eyelid, causing severe pain until the eye is lubricated with eye drops or medication. Dr. Cohen testified that Burbridge's long history of recurrent pain in a single eye, rather than both eyes, is consistent with RCE syndrome. Dr. Cohenfurther testified that he believes Burbridge's right eye pain is related to the train accident.

Dr. Edward Holland, an ophthalmologist and corneal specialist, testified as an expert witness on behalf of Respondents. In preparation for his testimony, Dr. Holland interviewed and examined Burbridge for approximately 20 to 30 minutes. Based upon his physical examination of Burbridge and his review of Burbridge's medical records, Dr. Holland diagnosed Burbridge with dry eye syndrome and blepharitis, two conditions that, according to him, could not have been caused by the train accident. Dr. Holland also testified that Burbridge does not suffer from RCE syndrome. He explained that RCE syndrome requires an initial erosion or abrasion, which causes severe pain. Because Burbridge's initial complaint following the eye accident was pain in both eyes, rather than severe pain in just his right eye, Dr. Holland found no basis to diagnose Burbridge with RCE syndrome.

After the parties presented their evidence to the jury, an instruction conference was held. Burbridge objected to proposed Instruction 6, MAI 8.02, which pertains to calculating damages should the jury find in favor of Burbridge. Burbridge objected to this instruction on the ground that the language referencing future pecuniary damages was confusing and misleading. The trial court overruled Burbridge's objection, finding that it was compelled to use the approved MAI 8.02.² Burbridge also objected to proposed Instruction 10, MAI 32.07(A), the affirmative defense instruction for failure to mitigate damages in FELA cases. Burbridge argued the instruction should not be given because there was insufficient evidence to support tendering the affirmative defense instruction. The trial court also overruled Burbridge's objection to Instruction 10.

On March 2, 2012, the jury returned a verdict in favor of Respondents. Judgment upon the verdict was entered by the trial court on March 12, 2012. On April 10, 2012, Burbridge filed a motion for new trial, which was denied. This appeal follows.

Points on Appeal

Although Burbridge presents only one point on appeal, his sole point consists of three separate arguments.³ Burbridge first argues that the trial court erred in denying his motion for new trial because the damages instruction given to the jury, MAI 8.02, contained language...