CSX Transportation, Inc. v. Miller, No. 1071507 (Ala. 3/19/2010)
| Decision Date | 19 March 2010 |
| Docket Number | No. 1071507.,1071507. |
| Parties | CSX Transportation, Inc. v. Joel Don Miller. |
| Court | Alabama Supreme Court |
Appeal from Mobile Circuit Court, (CV-03-405).
CSX Transportation, Inc. ("CSX"), appeals from a judgment entered on a jury verdict awarding Joel Don Miller damages of $450,000. We affirm.
Miller was employed with CSX and its predecessors from March 1967 until March 2003. During his 36-year career with CSX, Miller rode freight trains working as a conductor, a brakeman, and a flagman. Miller's career with CSX can be divided into two phases. From 1967 until 1988 he primarily rode the Montgomery-to-Mobile route. In 1988, he relocated to Pensacola and primarily rode the Pensacola-to-Mobile route until he retired in 2003.
Miller rode the lead locomotive engine when working as a brakeman and the rear caboose when working as a conductor and flagman. Miller testified that in all three positions he was exposed to traumatic forces, including vibration, jerking, and jolting, on a daily basis while he was employed with CSX. The typical freight-train trip was described as "rough."
Miller worked with CSX until 2001 with no complaints regarding his neck. However, in 2001, Miller began experiencing pain and stiffness in his neck while riding on the locomotives. The pain did not result from a single precipitating event but occurred gradually over time. At the time Miller began experiencing the neck pain he was 58 years old and had been a heavy smoker all of his adult life. Miller testified that initially the neck pain would subside at the end of a run when he got off the locomotive and rested. However, he stated that the pain would return on his next run once he was again exposed to the traumatic forces on the train. Miller stated that the neck pain eventually became constant and began radiating down his right arm. Although CSX policy required him to complete a personal-injury report, Miller stated that he did not do so because he did not realize how serious his neck injury was.
Miller sought treatment for his symptoms and was initially seen by several physicians who ordered diagnostic tests and prescribed conservative treatment. Miller testified that he continued to work full-time without missing any work while being treated conservatively for the neck pain. He further stated that the conservative treatment was ineffective "while [he] was still riding trains." When the conservative treatment failed to alleviate Miller's neck symptoms he was referred to Dr. Bruce Raymon, a neurosurgeon.
Miller was first seen by Dr. Raymon on June 10, 2002, complaining of neck pain radiating into his right arm and numbness in his fingers. Dr. Raymon ordered an MRI, which revealed multilevel degenerative disk disease between the 3d through 6th cervical vertebrae. The MRI indicated that Miller had moderate to severe narrowing of the disk space at those disk levels, which he determined was consistent with Miller's symptoms. Dr. Raymon diagnosed Miller with cervical radiculopathy, which he explained was a nerve-root compression with radiating pain into an extremity.
On July 24, 2002, Dr. Raymon performed surgery in order to decompress the nerve root and fuse the cervical vertebrae at the C4-5 and C5-6 levels. Dr. Raymon noted that the bone spurring in Miller's cervical vertebrae was so severe that the vertebrae had to be recontoured in order to fixate the plates and screws used in the fusion.
Miller was next seen by Dr. Raymon for follow-up on September 9, 2002. At that time Miller was pain-free and was not experiencing numbness or tingling in his arm. Dr. Raymon stated that Miller had had an "excellent" response to the surgery. Miller requested that Dr. Raymon release him to return to work. Dr. Raymon released Miller to return to his full duties with CSX without restrictions.
Miller returned to work, and he again began experiencing symptoms in his neck once he was exposed to the traumatic conditions aboard the train. Miller returned to Dr. Raymon on October 7, 2002. Dr. Raymon noted at that time that Miller complained of increased neck pain and headaches. Dr. Raymon prescribed anti-inflammatory pain medication and informed Miller that if the pain did not improve he should consult a pain-management specialist. He did not place Miller on restricted work duty at that time. However, Dr. Raymon did discuss with Miller whether his working conditions could be changed and, if not, whether he could continue to work under the conditions of his job and tolerate the pain. Miller stated that at the time he chose to "keep working and tolerate the pain. "
Miller returned to work and performed the full duties of his job until March 2003. Miller eventually concluded that his neck could no longer "stand getting up on another train" and decided to retire from CSX. Miller was eligible for "full retirement" based on his age and his years of service. Miller took the "full retirement" on March 25, 2003, at age 60 and in doing so "voluntarily relinquished" any right to return to employment with CSX. Miller stated that because he was already eligible to retire based on age and years of service he did not "bother" with disability retirement. Although Miller retired based on his age and years of service, he stated that he had intended and needed to continue working until the age of 65 but was unable to do so because of the pain in his neck.
Miller continued to receive treatment for his neck condition following his retirement in March 2003. He underwent additional diagnostic tests, received pain-management injections, and took narcotic pain medications, including Lortab and methadone. In May 2004, Miller was informed that there was nothing that could be done surgically to relieve his pain. His prognosis at that time was "somewhat guarded given the advanced multi-level [disk] disease." In March 2006, Miller received a fluoroscopic injection, which provided him with greater relief from his neck symptoms. He testified at trial that he continues to have light to moderate pain in his neck with exertion during activities but "nothing near what [he] was experiencing." Miller stated that he controls his pain with over-the-counter medication and that he had not received any medical treatment, other than pain management, for his neck since March 2003.
On cross-examination, Miller testified that no physician told him that he could not work because of his condition and that he made the decision to retire based on the pain he was experiencing in his neck. Miller testified that because of his neck condition he has not looked for other employment since retiring and that he has no intention of seeking other employment. Miller stated that he was the most senior man in Pensacola when he decided to retire and that he could have returned to work as a switchman if he had wanted, but he did not do so because he did not know "what the effect [of] switching would have on [his] neck." Larry Allerellie, a retired CSX official who had formerly served as system general mechanical inspector in CSX's mechanical department, stated that Miller's neck condition made him a safety hazard and unsuitable for the position of switchman.
Miller has identified four conditions associated with riding freight trains that he contends contributed to the traumatic forces to which he was exposed during his career at CSX. First, he presented evidence indicating that a number of areas along the CSX routes were particularly rough because of the track conditions. These areas were described in testimony as "continuously rough," "fairly rough riding," and a "pretty good jerk." One particular section of track would cause the locomotive to shake from side to side so violently that the CSX employees on board the train had to "hold on" to keep from being "thrown out" of their seat. On cross-examination Miller stated that he never requested that the engineer slow the train down in anticipation of the "rough spots" and that he never reported any of the "rough spots" to CSX. However, O.D. King, an engineer employed by CSX who had worked with Miller, testified that the trains were routinely issued "slow orders" to reduce the train's speed when traveling through rough areas of track. King also stated that certain areas of track were "constant" problems that were never satisfactorily corrected after being reported to CSX.
Second, Miller claims that he was exposed to "slack action" while employed by CSX. "Slack action" is the loose-motion force generated by a moving freight train when one section of the train is traveling at a greater speed than another section of the train. The "slack" is said to be "going out" when the locomotives are traveling faster than the rest of the train and "coming in" when the rest of the train is traveling faster than the locomotive. Those employees riding in the locomotive would be "thrown" forward and backward by the "whipping" action created by the "slack" forces moving in or out. The "slack action" hits the locomotive hard and will cause the employees in the locomotive to be "knocked" from their seats. The intensity of the "slack action" varies depending on the weight and type of train. Miller was exposed to "slack action" regularly while riding on the freight trains.
Third, Miller rode cabooses when working as a conductor and flagman from 1967 until the mid 1980s when CSX phased them out. A common condition associated with the cabooses was known as "dead" draw-head. A draw-head is the welded coupling located on the front of the caboose that connects the caboose to the railroad car in front of it. The draw-head was referred to as being "dead" because it was solid, with no "give to it at all" so that when "slack action" ran in "it felt like you ran into a solid wall," and when "slack action" ran out "it felt like you were rear-ended in an automobile accident." The employees riding in the cabooses experienced the traumatic...
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