Crowther v. Consol. Rail Corp.

• Decision Date: 18 May 2012
• Docket Number: No. 11–1578.,11–1578.
• Citation: 680 F.3d 95
• Parties: Geoffrey CROWTHER, Plaintiff, Appellant, v. CONSOLIDATED RAIL CORPORATION and CSX Transportation, Inc., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

680 F.3d 95

Geoffrey CROWTHER, Plaintiff, Appellant,

v.CONSOLIDATED RAIL CORPORATION and CSX Transportation, Inc., Defendants, Appellees.

No. 11–1578.

United States Court of Appeals, First Circuit.

Heard Jan. 10, 2012.

Decided May 18, 2012.

Thomas J. Joyce, III for appellant.

Andrew E. Tauber, with whom Paul W. Hughes, Mayer Brown LLP, Michael B. Flynn, Heather M. Gamache, and Flynn & Wirkus, PC were on brief, for appellees.

Before SELYA, Circuit Judge, SOUTER, Associate Justice,^* and LIPEZ, Circuit Judge.

SOUTER, Associate Justice.

This is an appeal brought in consolidated negligence actions under the Federal Employers' Liability Act (FELA), 45 U.S.C. § 51 et seq., against the two railroad defendants by a former employee, Geoffrey Crowther, who held various laboring and supervisory positions over the course of 30 years. The claims in issue before us are for causing cumulative, or wear-out, injuries to the neck, knees, left elbow and thumb, and for accidental injury to the left forearm while driving a spike in 2005.

Crowther first filed separate actions for the cumulative injuries and for the accidental damage in the Pennsylvania County Court of Common Pleas on September 21, 2007, each of which was dismissed without prejudice and subject to an understanding, not disputed here, that any challenge to the timeliness of the claims, if renewed elsewhere, would be governed by the Pennsylvania entry date. Crowther filed a federal complaint in the district of Massachusetts for the wear-out injuries on March 5, 2009, together with separate claims for aggravation of physical conditions, not previously raised. Later in the same year, he filed a federal complaint for the accidental injury to the forearm. The district court granted defendants' motion for judgment as a matter of law as to most of Crowther's claims; those remaining were tried to defendants' verdicts.

In this appeal, Crowther assigns error to granting the defendants judgment as a matter of law (rejecting the neck and knee claims as untimely and the remaining claims insofar as they rested on alleged failures to perform ergonomic analyses of Crowther's activities or provide adequate tools), and to admitting evidence that Crowther was receiving disability benefits under the Railroad Retirement Act, 45 U.S.C. § 201 et seq. We review the grants of judgment as a matter of law de novo, Cruz–Vargas v. R.J. Reynolds Tobacco Co., 348 F.3d 271, 275 (1st Cir.2003), and the admission of collateral source evidence for abuse of discretion, McGrath v. Consol. Rail Corp., 136 F.3d 838, 841 (1st Cir.1998). We affirm on all issues.

The federal statute requires that FELA claims be brought within three years, 45 U.S.C. § 56, a period running from the date that a plaintiff knows or has reasonable grounds to know of an injury as caused by employment, Granfield v. CSX Transp., Inc., 597 F.3d 474, 482 (1st Cir.2010). Thus, in order to fall within the period for which suit is allowable, the wear-out injuries must have become identifiable as work-related on September 21, 2004, or later, and the aggravation injuries on or after March 5, 2006. Crowther does not now contest the court's conclusion that the aggravation claims were untimely, appealing only the judgment at the close of the plaintiff's case of the action for neck and knee wear-out, which was based on findings by the court under Federal Rule of Civil Procedure 50(a) that the evidence could not support a reasonable jury finding that Crowther sued while the three-year window was open.

As for the knees, the evidence included a 2007 medical questionnaire on which Crowther reported pain in the knees attributable to a fall at work in 1977; a separate physician's note, also from 2007, that Crowther had reported that his knees became painful in 2002 “probably due to overuse at work”; ¹ and a 1998 medical history form that recorded Crowther's claim of a “work injury” of a “bothersome” knee and back owing to a fall twenty years before. As against this evidence of injury and pain understood as related to his work, we have been directed to nothing but general testimony that Crowther had recovered from a past right knee injury and his knee pain was not continuous from 1992 to the time of trial. Just as significantly, Crowther directs us to no evidence to the effect that at some point within the limitations period he first had reason to associate knee pain with his railroad employment.

On the evidence, then, no fact-finder could reasonably have inferred that Crowther became aware of a work connection with his knee pain only after mid-September of 2004. Although Crowther stresses at length that the cases construing a FELA plaintiff's right to get his case before a jury require not much more than a scintilla of evidence in plaintiff's favor on a disputed point, see e.g., Aparicio v. Norfolk & Western Ry. Co., 84 F.3d 803, 809–10 (6th Cir.1996), abrogated in part on other grounds by Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000), nothing but sympathy could obscure the apparent untimeliness of the knee claim here, and the Rule 50(a) judgment was undoubtedly correct.

The same is true as to the claim of neck injury. A physician's note from 2002 described Crowther as a railroad worker doing heavy work as a welder, complaining of right shoulder and arm pain and neck pain. Crowther testified, in a deposition, read into the record in his cross-examination, that the doctor “said whatever you're doing right now.... I would get away from it. Find something like a management job or something.... Dr. Bausten said, I recommend that you just, you know, whatever, you're welding, get away from it. So that's what I did.” While Crowther took the position at trial that he did not perceive a work relation until later, we have been directed to only one direct comment on the prior deposition testimony, a reference to seeking the 2002 medical attention for carpal tunnel syndrome, and a vague statement responding to his lawyer's question about when he knew of work relation: “the whole thing with my [left] thumb, my [left] elbow and my neck was 2005.” The trial judge was not exaggerating when he remarked that he failed to see how counsel could argue with a straight face that Crowther did not know of his neck problem in 2002 and understand its possible relation to his work.

We likewise see no error in entering judgment as a matter of law on the negligence claims based on inadequate tools and failure to obtain ergonomic studies of the activities required to perform Crowther's various jobs. The only evidence that proper tools were lacking related to 2005, the year of the accidental forearm injury. As to that specific injury, the theory was submitted to the jury (and rejected), but was properly barred with respect to the wear-out injury claims for cumulative effects of continually negligent conduct: there simply was no evidence of a persisting failure to provide adequate equipment over time.

Unlike the tools claim, the claimed failure to conduct ergonomic studies of Crowther's job activities was raised only as a cause of the cumulative, wear-out injuries (and only against Consolidated Rail Corporation). While there is no question that Consolidated commissioned no such studies, this claim was rejected, quite properly, for the failure of Crowther's expert, or any other witness, to show how such studies would reasonably have made a difference in the way the railroad treated Crowther. His counsel has not called our attention to any evidence that job assignments or instructions for performing assigned work might have changed in light of any understanding that ergonomic studies would have fostered. There is thus no indication of any basis for a jury to conclude that inattention to ergonomics caused any harm to Crowther.

Crowther's final assignment of error goes to the admission of evidence of malingering, which was relevant to his claim of loss from continuing disability attributable to the negligence of the railroads in causing chronic or wear-out injury to his left elbow and thumb, and to the negligence of CSX alone in causing the accidental injury to his left...