CSX Transp., Inc. v. Long

• Decision Date: 13 December 1996
• Citation: 703 So.2d 892
• Parties: CSX TRANSPORTATION, INC. v. Thomas W. LONG. 1950835.
• Court: Alabama Supreme Court

Page 892

703 So.2d 892

CSX TRANSPORTATION, INC. v. Thomas W. LONG.

1950835.

Supreme Court of Alabama.

Dec. 13, 1996.

Stephen A. Rowe, David B. Hall, and David W. Spurlock of Lange, Simpson, Robinson & Somerville, Birmingham, for appellant.

Michael D. Blalock of Blalock, Blalock & Oros, P.C., Birmingham, for appellee.

SHORES, Justice.

This is a negligence action involving hearing loss, brought under the Federal Employers Liability Act ("FELA"). The plaintiff, Thomas W. Long, sued CSX Transportation, Inc., alleging that he had suffered a hearing loss by being exposed at his workplace to various machines and train engines that emitted noises exceeding the levels permitted by OSHA noise standards. The case was tried before a jury, which returned a verdict in favor of Long for $1,000,000 in compensatory damages. The trial court denied CSX's motion for a new trial or a remittitur and entered a judgment on the verdict. CSX appeals. We affirm conditionally.

Thomas W. Long has been employed by CSX since 1969, with duties that have included operating various types of track maintenance equipment and acting as a foreman of track maintenance crews. Since 1983, he has been employed in a management capacity. Long claims that during his career with CSX he has been exposed to various machines that have caused him to suffer a severe high frequency sensorineural hearing loss. He claims that since at least 1982 CSX has been aware of the excessive noise levels that its equipment created, but that CSX did not allow hearing protection for its employees until 1989. In fact, CSX's rule book specifically stated: "When on or about railroad tracks, nothing must be worn about the head or neck." In 1990, CSX first provided hearing protection devices and annual testing to monitor employee hearing.

The scope of appellate review in a FELA case, as that scope of review has been set out by the United States Supreme Court, is stated in CSX Transp., Inc. v. Maynard, 667 So.2d 642 (Ala.1995):

"The United States Supreme Court defined the scope of judicial review of jury verdicts in FELA cases in Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 744, 90 L.Ed. 916 (1946):

" 'Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear. But where, as here, there is an evidentiary basis for the jury's verdict, the jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion. And the appellate court's function is exhausted when the evidentiary basis becomes apparent, it being immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable.'

See also Lindsey v. Louisville & N.R.R., 775 F.2d 1322, 1325 (5th Cir.1985), CSX Transportation, Inc. v. Bryant, 589 So.2d 706 (Ala.1991)."

667 So.2d at 644.

I.

CSX first contends that, as a matter of Federal law, Long did not comply with the three-year statute of limitations imposed by the FELA in 45 U.S.C. § 51 (1988). The statutory period of limitations begins to run " 'when the plaintiff possesses sufficient critical facts from which the injury and its cause, including its work-relatedness, should be plainly known,' " Maynard, 667 So.2d at 647, quoting Chatham v. CSX Trans., Inc., 613 So.2d 341, 344 (Ala.1993) (quoting McCoy v. Union P.R.R., 102 Or.App. 620, 623-24, 796 P.2d 646, 648 (1990)) (citing DuBose v. Kansas City S. Ry., 729 F.2d 1026, 1030 (5th Cir.), cert. denied, 469 U.S. 854, 105 S.Ct. 179, 83 L.Ed.2d 113 (1984)). Thus, a cause of action under the FELA arises when a claimant is, or reasonably should be, aware of his or her injury and knows, or in the exercise of reasonable diligence should know, of facts indicating that the injury is work-related. CSX v. Maynard, supra, citing Chatham v. CSX Trans., Inc., supra, at 344.

CSX contends that Long knew no later than March 9, 1989, that he was suffering some perceptible measure of hearing loss and that the loss was work-related. Long testified that he was seen on March 9, 1989 by Dr. Charles Gary Jackson. Dr. Jackson's staff did a hearing test that they did not show to him. They then scheduled Long for more tests with Ron Sheffey, an audiologist, for March 15, 1989. On direct-examination, Long testified:

"Q. At the time prior to going in on March 15, 1989, had anyone told you that you had noise-induced hearing loss?

"A. No, Sir.

"Q. Did you think you had a hearing loss?

"A. No."

Ron Sheffey told Long that he had a noise-induced hearing loss, and Sheffy wrote on the bottom of Long's March 15, 1989, audiogram: "Bilateral high frequency sensorineural hearing was most likely noise-induced." Long testified that this was the first time he was aware that he had a hearing injury and that the injury was most likely work-related.

The trial judge concluded that there was conflicting evidence as to when Long learned or should have learned that he had a work-related hearing loss. He charged the jury as follows:

"Any FELA claim accrued in the three-year statutory period of limitations begins to run when the plaintiff possesses sufficient critical facts from which the injury and its cause, including its work relatedness, should be plainly known. Thus, a cause of action under the FELA arises when a claimant is or reasonably should be aware of his injury and knows or in the exercise of reasonable diligence should know of facts that indicate that the cause of the injury is work-related.

"The burden of proof is upon the plaintiff to reasonably satisfy you from the evidence that this action was commenced within three years from the date it accrued. And I charge you that this action was commenced on March the 12th of 1992."

In a FELA case, if conflicting evidence presents more than one evidentiary basis for a verdict, the jury is free to determine the evidence it considers the more credible and to base a verdict on that evidence. Brown v. Seaboard Coast Line R.R., 473 So.2d 1022, 1025 (Ala.1985), citing Dennis v. Denver & R.G.W. R.R., 375 U.S. 208, 84 S.Ct. 291, 11 L.Ed.2d 256 (1963). There was sufficient evidence to support the jury's conclusion that March 15, 1989, was the date on which Long first knew he had a noise-induced hearing loss.

II.

CSX next contends that the trial judge erred to reversal by admitting opinion evidence from an expert witness based on hypothetical facts. The witness was Dr. Dennis Pappas, a medical doctor who specializes in ears--otology and neurotology. CSX claims that the hypothetical facts were never put in evidence or otherwise substantiated during the trial. The plaintiff says there were actually two hypothetical questions posed to Dr. Pappas at his deposition and that both were supported by the evidence adduced at the trial:

"Q. Now, Doctor, based on the history given to you by Thomas Long of the 24 years with the railroad and based on the audiogram, the objective testing that you've done on Mr. Long, and based on both tests that you've done and based on your prior medical experience and based on the fact that there was going to be testimony at trial by Mr. Long that he operated a spiker machine, and a burr crane machine and also working on or around trains for six to eight hours, whereby that you couldn't hear a conversation within a five-foot radius of the machine due to the loudness of themufflers and the motors or the whistles or the horns; do you have an opinion within a reasonable degree of medical certainty as to the cause of Mr. Long's hearing loss?

"A. Yes, I feel that he received a noise-induced hearing loss.

"Q. On the job?

"A. I can't say that it was all from the job but a percentage of it was. What percentage of it is from the job and what percentage is from other reasons, I can't say.

"Q. It was also testimony at trial that Mr. Long had been exposed to sound levels of dba levels for four to eight hours a day in the range of 85 to 90 dba's. Would that affect your opinion to any degree?

"....

"A. If the noise level was at 85 to 90, eight hours a day straight, then this is severe enough to cause damage."

The record reflects that Long had normal hearing when an audiogram was done in 1967, while he was in the Army. Long testified that he went to work on the railroad in 1969. He had various jobs, including jobs operating a hydrospiker machine, a tamper machine, a ballast regulator machine, a backhoe, and a burr crane machine. He testified that he worked from 7:00 a.m. in the morning until 4:00 p.m. in the afternoon, with a lunch break, spending an average of six to seven hours a day on the machines he operated. When asked "which is the closest, six or seven?" Long responded, "I would say most of the time it would be closer to seven hours a day." Long then explained that he was part of a production gang which would have a "flagging order" for four to eight miles of track. The flagging order meant "when you got out there, nothing could come between--in that between four miles and that eight miles [sic]. You were in there, that was yours, you worked." At one point, he operated a spike-driving machine. Long testified that while working on that machine he was looking directly into the back end of a three-cylinder diesel engine. At another point he operated a tie handler, which picks up crossties. Long testified that it was not uncommon to work around tie handler mufflers that were broken off down to the manifold. Long's co-worker Terry Kerry testified to this as well. Long also operated a tamper, which picks up the tracks, along with a ballast regulator, which puts the rocks or ballast under the tracks. The tamper and ballast regulation are part of the liner system that keeps the tracks straight. The tamper machine Long operated for seven years had a V-8 engine that had two big flywheels on each side, approximately 18 inches in diameter. Long testified that the flywheels caused a high-pitched hum that would "play with your ears--making your ears have problems with them." Kerry, who...