Crafton v. Union Pacific Railroad Co.

• Decision Date: 20 October 1998
• Docket Number: Nos. A97-559,A-97-562,s. A97-559
• Citation: 585 N.W.2d 115,7 Neb.App. 793
• Parties: David W. CRAFTON, Appellant, v. UNION PACIFIC RAILROAD COMPANY, a corporation, Appellee. Donald R. BIMES, Appellant, v. UNION PACIFIC RAILROAD COMPANY, a corporation, Appellee.
• Court: Nebraska Court of Appeals

Page 115

585 N.W.2d 115

7 Neb.App. 793

David W. CRAFTON, Appellant, v. UNION PACIFIC RAILROAD COMPANY, a corporation, Appellee.

Donald R. BIMES, Appellant, v. UNION PACIFIC RAILROAD COMPANY, a corporation, Appellee.

Nos. A97-559, A-97-562.

Court of Appeals of Nebraska.

Oct. 20, 1998.

Syllabus by the Court

1. Federal Acts: Railroads: Claims: Courts: Jurisdiction. Courts of the United States and courts of the several states have concurrent jurisdiction over claims controlled by the Federal Employers' Liability Act.

2. Federal Acts: Railroads: Claims: Courts: Actions. In disposing of a claim controlled by the Federal Employers' Liability Act, a state court may use procedural rules applicable to civil actions in the state court unless otherwise directed by the act, but substantive issues concerning a claim under the act are determined by the provisions of the act and interpretative decisions of the federal courts construing the act.

3. Jurisdiction. Procedural matters are dictated by the law of the forum.

4. Jurisdiction: Summary Judgment. Whether a party is entitled to summary judgment is a matter of procedure controlled by the law of the forum.

5. Summary Judgment. Summary judgment is proper when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.

6. Summary Judgment. On a motion for summary judgment, the question is not how a factual issue is to be decided, but whether any real issue of material fact exists.

7. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence.

8. Evidence. Generally, the admissibility of evidence is a procedural matter governed by the law of the forum.

9. Expert Witnesses: Appeal and Error. A lower court's ruling in receiving or excluding an expert's opinion which is otherwise relevant will be reversed only when there is an abuse of discretion.

10. Trial: Rules of Evidence: Expert Witnesses. In determining whether an expert's testimony is admissible, a court considers four preliminary and interrelated questions: (1) whether the witness qualifies as an expert pursuant to Neb. Evid. R. 702, Neb.Rev.Stat. § 27-702 (Reissue 1995); (2) whether the expert's testimony is relevant; (3) whether the expert's testimony assists the trier of fact to understand the evidence or determine a controverted factual issue; and (4) whether the expert's testimony, even though relevant and admissible, should be excluded under Neb. Evid. R. 403, Neb.Rev.Stat. § 27-403 (Reissue 1995), because its probative value is substantially outweighed by the danger of unfair prejudice or other considerations.

11. Trial: Expert Witnesses. Expert testimony should not be received if it appears that the witness is not in possession of such facts as will enable the expert to express a reasonably accurate conclusion, and where the opinion is based on facts shown not to be true, the opinion lacks probative value.

12. Trial: Expert Witnesses. Medical testimony must be sufficiently definite and certain that a conclusion can be drawn that there was a causal connection between an accident and a disability.

13. Trial: Expert Witnesses. A medical expert's testimony need not be couched in the magic words "reasonable degree of medical certainty or a reasonable probability."

14. Federal Acts: Railroads: Liability: Negligence: Damages. Under the Federal Employers' Liability Act, employer railroad companies are liable in damages to any employee who suffers injury due to the employer railroad's negligence.

15. Federal Acts: Railroads: Negligence: Proof. To recover under the Federal Employers' Liability Act, a plaintiff must prove the common-law elements of negligence, including duty, breach, foreseeability, and causation.

16. Federal Acts: Railroads. Under the Federal Employers' Liability Act, an employer railroad has a duty to provide employees (1) a reasonably safe workplace, (2) safe equipment, (3) proper training, and (4) suitable methods to perform the assigned work.

17. Federal Acts: Railroads: Liability: Proof. The quantum of evidence required to establish liability in a Federal Employers' Liability Act action is lower than that required in an ordinary negligence action.

18. Federal Acts: Railroads: Proximate Cause. The common-law standard of proximate cause is not applicable to the Federal Employers' Liability Act.

19. Federal Acts: Railroads: Negligence: Proof. The test for causation under the Federal Employers' Liability Act is whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing an injury.

20. Federal Acts: Railroads: Negligence. Under the theory of negligent assignment under the Federal Employers' Liability Act, an employer railroad has a duty to assign employees to work for which they are reasonably suited. An employer railroad breaches that duty if it negligently assigns an employee to perform work beyond his or her capacity.

21. Federal Acts: Railroads: Negligence. Under the Federal Employers' Liability Act, an employer railroad is negligent if it knew or should have known that its assignment exposed an employee to an unreasonable risk of harm. Whether the assignment is negligent is a question of fact.

22. Federal Acts: Railroads: Notice. Under the Federal Employers' Liability Act, notice of an employee's physical condition to any of the employee's supervisors constitutes notice to the employer railroad itself.

23. Federal Acts: Railroads: Notice. Under the Federal Employers' Liability Act, complaints to a supervisor about problems at work may provide sufficient notice to an employer that an employee is assigned to a task which he or she is unable to safely perform.

James D. McFarland, Lincoln, and Robert W. Bosslet, Jr., Granite City, IL, for appellants.

Richard J. Hautzinger and Anne Marie O'Brien, Omaha, for appellee.

IRWIN, C.J., and HANNON and INBODY, JJ.

IRWIN, Chief Judge.

I. INTRODUCTION

These appeals involve Federal Employers' Liability Act (FELA) cases arising out of carpal tunnel syndrome (CTS) injuries sustained by Donald R. Bimes and David W. Crafton (together, the plaintiffs), which they allege they sustained as a result of their employment with the Union Pacific Railroad Company (UP). The plaintiffs each filed an action in the district court for Douglas County, claiming that UP negligently assigned him to work for which he was unsuited. In each case, the district court granted UP's motion for summary judgment and dismissed the case. The plaintiffs timely appealed to this court. Upon a motion to consolidate filed by UP, the cases were consolidated for the purposes of appeal. For the reasons stated below, we reverse, and remand for further proceedings.

II. FACTUAL BACKGROUND

1. BIMES' CASE

Bimes has been employed with UP since August 1973. In approximately 1989, he became a crew caller. His duties included keyboarding. In 1991, Bimes became a timekeeper, which also included keyboarding duties. His typing usually consisted of pressing one, two, or three different keys at a time to call up formatted computer screens pertaining to each crew member and then typing in lines of information. Bimes began to experience pain and tingling in his hands in approximately March 1993. He was ultimately diagnosed with CTS. When conservative treatment did not remedy the problem, surgeries were performed. Bimes did not work from February 24, 1995, until May 21, 1996. On January 16, 1996, Dr. Jerome Bashara, an orthopedic surgeon who was Bimes' treating physician, recommended that he not return to any repetitive activities and be retrained vocationally. According to Bashara, Bimes returned to work against Bashara's recommendation.

When Bimes returned to work on May 21, 1996, he was not experiencing any of the symptoms he attributed to CTS. For approximately the first 11/2 months after his return, Bimes was assigned to perform duties that did not involve keyboarding. During this time, his hands became tired but he did not experience CTS symptoms. By mid-August, Bimes was eased back into a full-time timekeeper position, which included approximately 21/2 to 3 hours of keyboarding in each 8-hour shift. After returning to the timekeeper job, Bimes' CTS symptoms returned. Bimes told his supervisor of his problems. His supervisor did not respond to or address Bimes' concerns. Pursuant to Bashara's recommendations, Bimes stopped working on October 23.

2. CRAFTON'S CASE

Crafton was also a longtime employee of UP. In 1988, he began working as a crew dispatcher. According to Crafton, his duties include keyboarding for an average of approximately 3 to 4 hours intermittently over the course of each shift. Crafton began to experience pain in his hands and wrists in December 1991. He sought treatment from Dr. Peter Cimino, who told him the symptoms were related to work. At some point in November or December 1993, Nancy Hill, a casualty management representative at UP, requested that Crafton consult Dr. Richard P. Murphy. Murphy diagnosed CTS on the left side. In approximately May 1994, Murphy restricted Crafton to typing only 5 to 15 minutes per hour. In October 1994, Crafton was diagnosed with CTS on the right side.

Crafton did not work from January to November 1994. During this time, Crafton's symptoms lessened when he was not typing. According to Crafton, at Hill's request he attempted to type during the period he was not working. However, any typing would cause him to experience CTS symptoms. In October 1994, Murphy changed his restriction to 20 to 30 minutes of typing per hour and...