CSX Transp., Inc. v. Moody, No. 2007-SC-000548-DG

• Decision Date: 20 May 2010
• Docket Number: No. 2007-SC-000548-DG,2009-SC-000048-DG.
• Citation: 313 S.W.3d 72
• Parties: CSX TRANSPORTATION, INC., Appellant/Cross-Appellee, v. Troy MOODY, Appellee/Cross-Appellant.
• Court: United States State Supreme Court — District of Kentucky

313 S.W.3d 72

CSX TRANSPORTATION, INC., Appellant/Cross-Appellee, v. Troy MOODY, Appellee/Cross-Appellant.

Nos. 2007-SC-000548-DG, 2009-SC-000048-DG.

Supreme Court of Kentucky.

May 20, 2010.

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Raymond G. Smith, Edward H. Stopher, David T. Klapheke, Boehl, Stopher & Graves, LLP, Louisville, KY, Dan Himmelfarb, Mayer Brown, LLP, Washington, DC, Counsel for Appellant/Cross-Appellee, CSX Transportation, Inc.

Kenneth L. Sales, Joseph Donald Satterley, Paul Jason Kelley, Sales, Tillman, Wallbaum, Catlett & Satterley, Louisville, KY, Counsel for Appellee/Cross-Appellant, Troy Moody.

OPINION OF THE COURT

This appeal concerns an action filed by Troy Moody under the Federal Employers' Liability Act (FELA).¹ Moody claimed that he developed a type of permanent brain injury known as toxic encephalopathy from exposure to fumes from solvents used in his work for CSX Transportation, Inc. in the 1970s and 1980s. A jury returned a verdict in his favor and awarded damages, after which CSX appealed. The Court of Appeals vacated the award of future medical expenses, holding that the amount of the award was supported only by supposition and speculation, but affirmed in all other respects.

We granted CSX's motion for discretionary review to consider whether the Court of Appeals erred by affirming the trial court's decision to admit evidence concerning other employees' exposure to solvents as well as its refusal to give instructions that CSX tendered concerning the foreseeability of harm, non-taxability of damages, and reduction of damages to present value. We granted Moody's cross-motion to consider whether the Court of Appeals erred by holding that CSX filed a timely notice of appeal.

Moody began to work at CSX's South Louisville shops in August 1978 as a service attendant and later worked as a machinist helper and machinist apprentice. His duties included cleaning pits, ramps, tools, and anything else that required cleaning, often in confined spaces. He stated that he used various cleaning solvents, including brown soap, mineral spirits, and a substance that he referred to as "Dowclene."²

Although Moody received a protective rubber apron, hard hat, safety goggles, and face shield, he stated that he was neither given a respirator nor informed of the dangers involved in using solvents. He testified that Dowclene emitted particularly strong-smelling fumes that resembled gasoline. He used the chemicals daily and frequently became lightheaded, dizzy, and nauseated. He would go outside for a "fresh air break" until his symptoms subsided but did not report the symptoms to a nurse or physician. Moody was furloughed from December 12, 1982, until July 28, 1983, after which he returned to work at the shop. At that time, he used brown soap and mineral spirits but not Dowclene. Moody was transferred to work on a rail gang sometime in 1984 and worked repairing machinery. He quit working in 2002 after he developed carpal tunnel syndrome.

Moody's claim alleged that CSX knew or should have known of the dangers associated with using Dowclene but failed to take necessary safety precautions, which caused him to be exposed to toxic fumes and develop toxic encephalopathy. The injury produced memory loss, confusion, anxiety, mood swings, and fatigue, which Moody alleged were permanent and disabling.

Moody's evidence included testimony from Dr. Douglas Linz, a specialist in internal, occupational, and environmental medicine. Dr. Linz testified concerning the long-term effects of using volatile chlorinated organic solvents such as PERC and trichloroethane and mineral spirits. He stated that symptoms of toxic encephalopathy generally require three to ten years' exposure but can develop with as little as three months' exposure. The occupational history he obtained from Moody indicated that he and nearby workers used large quantities of the solvents in poorly-ventilated areas, including pits. Dr. Linz stated that fumes from such chemicals are heavier than air, which causes them to collect in areas such as pits, increasing the intensity of an exposure when working in such an area. He opined that Moody suffered from permanent brain damage due to toxic encephalopathy and that the condition resulted from exposure to solvents in his work for CSX.

CSX made two motions for a directed verdict, the first after Moody rested his case and the second after CSX rested its case. The trial court denied both. The jury then returned a verdict in Moody's favor and awarded damages of $200,000.00 for future medical expenses; $540,000 for future lost wages; $1,000,000.00 for past pain and suffering; and $1,000,000.00 each for future pain and suffering.

I. Timely Appeal

The parties disagreed when arguing CSX's directed verdict motion about proof of Moody's after-tax wages and about whether a collective bargaining agreement permitted CSX to offset certain medical expenses. The trial court denied the motion, noting that the issues could be resolved after the jury returned its verdict but before judgment was entered, by means of post-trial briefs and additional proof if required. The disagreement arose again when discussing jury instructions concerning damages, at which time the parties agreed to brief the issues as suggested earlier by the court.

CSX made an oral motion for judgment notwithstanding the verdict (JNOV) immediately after the jury returned a verdict, raising four issues. The trial court denied the motion to vacate as to negligence and the sufficiency of evidence that disability from the injury caused Moody's wage loss. Consistent with the parties' agreement, the court deferred a ruling and designated the time within which the parties should brief whether damages for wage loss must be based on after-tax earnings and whether CSX was entitled to offset future medical expenses paid under its medical plan.

CSX filed its brief, albeit styled as a motion for JNOV, on October 10, 2003 and Moody filed a brief in response. The trial court determined after a hearing that the record contained ample proof to support the verdict and denied the balance of the oral motion on November 21, 2003. A subsequent order struck "final and appealable" language from the November 21 order.

The trial court entered judgment on the jury's verdict on December 18, 2003. On Monday, December 29, 2003 CSX filed a motion for JNOV or, in the alternative, a new trial, which included both the issues raised in the oral motion and new issues. Although the trial court denied the motion for JNOV on December 28, 2004, the order failed to address the new trial request. CSX requested a ruling on the request on January 6, 2005, after which the trial court entered an order acknowledging that it remained pending. The court entered an order denying a new trial on June 27, 2005 and CSX filed a notice of appeal on July 14, 2005. Although Moody moved to dismiss, the Court of Appeals denied the motion and affirmed the trial court.

Moody's cross-appeal asserts that the Court of Appeals erred by failing to grant his motion to dismiss CSX's appeal as untimely. He argues that CR 59.02 and the first sentence of CR 50.02 permit a motion for JNOV and/or a new trial to be made at any time after the jury returns a verdict but within 10 days after the entry of judgment. Moreover, they permit the motion to be made orally, immediately after the jury renders its verdict, or filed in writing no later than 10 days after judgment is entered. He concludes that CSX moved for JNOV or, in the alternative, a new trial before judgment was entered.³ Moody maintains, therefore, that CSX's post-judgment motion for JNOV or a new trial amounted to a motion to reconsider the denial of the initial motion, which did not toll the time for filing a notice of appeal. We disagree.

Although CR 73.02(1)(a) requires a notice of appeal to be filed within 30 days after the notation of "service of the judgment or order" being appealed, CR 73.02(1)(e) terminates the running of the time for appeal upon the filing of a timely motion for JNOV or a new trial. The time commences to run when an order granting or denying the motion is served under CR 77.04(2).

CR 50.02, which authorizes a motion for JNOV, provides:

Not later than 10 days after entry of judgment, a party who has moved for a directed verdict at the close of all the evidence may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict; or if a verdict was not returned, such party within 10 days after the jury has been discharged may move for judgment in accordance with his motion for a directed verdict. A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative. If a verdict was returned the court may allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed. If no verdict was returned the court may direct the entry of judgment as if the requested verdict had been directed or may order a new trial, (emphasis added).

CR 59.02 provides:

A motion for a new trial shall be served not later than 10 days after the entry of the judgment.

The term "judgment notwithstanding the verdict" may be construed to include an initial judgment that disregards the jury's verdict. The third sentence of CR 50.02 states specifically, however, that a trial court when ruling on a motion for JNOV and/or a new trial may either "allow the judgment to stand" or "reopen the judgment," either of which presumes that a judgment has been entered. In other words, CR 50.02 authorizes motions that request the court to reconsider and reopen an existing judgment.

We do not view the oral motion made at the close of trial or the brief filed in support of the oral motion as being premature motions...