Dalebout v. Union Pacific R. Co., 981163-CA

• Citation: 980 P.2d 1194
• Decision Date: 06 May 1999
• Docket Number: No. 981163-CA,981163-CA
• Parties: 368 Utah Adv. Rep. 43, 1999 UT App 151 Mark S. DALEBOUT, Plaintiff and Appellee, v. UNION PACIFIC RAILROAD COMPANY, Defendant and Appellant.
• Court: Court of Appeals of Utah

Page 1194

980 P.2d 1194

368 Utah Adv. Rep. 43, 1999 UT App 151

Mark S. DALEBOUT, Plaintiff and Appellee, v. UNION PACIFIC RAILROAD COMPANY, Defendant and Appellant.

No. 981163-CA.

Court of Appeals of Utah.

May 6, 1999.

Rehearing Denied June 14, 1999.

Morris O. Haggerty and Larry A. Gantenbein, Union Pacific Railroad Company, Salt Lake City, for Appellant.

Richard I. Ashton, Ashton, Braunberger & Boud, Sandy, and John J. Rossi, Kiker & Inderwish, PC, Aurora, Colorado, for Appellee.

Before GREENWOOD, Associate P.J., BILLINGS and JACKSON, JJ.

OPINION

JACKSON, Judge:

¶1 Union Pacific Railroad Company (Union Pacific) challenges a jury verdict for Mark S. Dalebout. We reverse and remand in part and affirm in part.

BACKGROUND

¶2 We recount the facts in a light most advantageous to the jury's verdict, mentioning contrary evidence only as it aids in understanding our resolution of this appeal. See Patey v. Lainhart, 366 Utah Adv. Rep. 21, 21, 977 P.2d 1193, 1195 (Utah 1999).

¶3 Dalebout brought this personal injury action against Union Pacific under the Federal Employers' Liability Act (FELA). See 45 U.S.C. §§ 51-60 (1983). He asserted that he was injured by Union Pacific's negligence and requested damages for past and future medical costs, past wage loss, future impairment of earning capacity, and past and future pain and suffering.

¶4 Dalebout was twenty-six when he started working for Union Pacific in 1975. He had graduated from high school and completed about two-and-a-half years of college. His prior work history included carpet sales, ski patrol, and ski lift operations. Over the years with Union Pacific, Dalebout worked as a switchman, then brakeman, conductor, and, finally, an engineer.

¶5 On February 1, 1993, while Dalebout was working as an engineer running a locomotive, the defective seat in which he sat dropped three or four inches as he tried to open a window. He was jarred and felt sharp pain in his back. Dalebout reported the injury to Union Pacific and took ten days off with pay before returning to work. His doctor diagnosed him with back strain, treating him with physical therapy and anti-inflammatories. Despite the treatment, Dalebout's back remained painful.

¶6 Dalebout then visited another doctor, Dr. Bryan. Based on a magnetic resonance image (MRI) and X-rays, Dr. Bryan determined that Dalebout had degenerative disc disease with minimal bulging of two spinal discs. The disc disease had pre-existed the injury, but apparently had not been painful. The injury had then exacerbated the disease, precipitating Dalebout's back pain. Dr. Bryan prescribed more anti-inflammatories. Meanwhile, Dalebout continued the physical therapy exercises on his own and kept doing them through the time of trial.

¶7 In further visits to Dr. Bryan, Dalebout described chronic pain in both his back and legs. He also reported that part of his right foot was numb. About three years after the first MRI, Dr. Bryan ordered another one, which showed little change. Dr. Bryan continued prescribing anti-inflammatories.

¶8 Via a videotaped deposition shown at trial, Dr. Bryan testified that Dalebout's pain was twenty percent related to his injury and eighty percent related to the pre-existing degenerative disc disease. Dr. Bryan stated that the disc disease would worsen over the years, but he could not predict whether Dalebout's pain would also worsen. Regarding future treatment, Dr. Bryan testified that Dalebout would always need anti-inflammatories and an occasional epidural steroid injection to cope with his lingering backache. He further opined that a thirty-percent chance exists that Dalebout may need back surgery. The doctor stated that Dalebout would not be able to work as an engineer if he underwent the surgery. Without the surgery, though, the doctor testified that there is no reason why Dalebout can not continue to work as an engineer.

¶9 Dalebout testified at trial that his back constantly hurts and his legs have become painful too. The pain seems to be slowly worsening, and he has to be careful in his activities to keep from further irritating his back. Indeed, Dalebout has had to greatly curtail his personal and recreational pursuits, including skiing. Lifting, twisting, standing or sitting for long periods, and even sneezing can aggravate his condition. He takes daily pain medication, increasing the dosage over time.

¶10 Before the injury, Dalebout had no physical limitations. Now, he may not lift more than fifty pounds. Although his job description requires him to be able to help lift eighty-three pounds, Dalebout testified that his lifting restriction has not hampered his work. In fact, Dalebout testified that his injury does not affect his ability to do his job because he works with his hands. Except for the first ten days, he has not even missed a day of work because of the injury. However, with his back pain, he is not always physically comfortable at work and must sometimes readjust his body position or stand up. Both Dalebout and his close friend who also works for Union Pacific testified that Dalebout worries about his livelihood. Still, since his injury, Dalebout has been able to work all shifts available to him and his wages have increased. He testified that he plans to work until he is sixty-five.

¶11 Although Union Pacific has not asked Dalebout to be physically examined in recent years, Tim Holmes, a Union Pacific representative, testified that the railroad may physically examine any employee to determine if he is fit for duty. Holmes acknowledged that federal laws require Union Pacific to accommodate disabled employees. Holmes further testified that if Dalebout became unable to work Dalebout would lose $78,000 per year.

¶12 Before trial, the trial court denied Union Pacific's motion in limine asking the trial court to exclude Dr. Bryan's testimony that Dalebout has a thirty-percent chance of needing future back surgery. After Dalebout presented his witnesses at trial, Union Pacific unsuccessfully moved for a directed verdict, arguing Dalebout had introduced insufficient evidence to support his claims involving future surgery and future impairment of earning capacity. Union Pacific later objected to jury instructions letting the jury consider future surgery and future impairment of earning capacity. The jury found Union Pacific liable for negligence and returned a verdict for Dalebout, awarding $825 for past medical costs; $5,040 for future medical costs; nothing for past wage loss; $275,000 for future impairment of earning capacity; $12,500 for past pain, suffering, and loss of enjoyment of life; and $200,000 for future pain, suffering, and loss of enjoyment of life (future pain and suffering).

¶13 Union Pacific moved for a judgment notwithstanding the verdict (JNOV) under Utah Rule of Civil Procedure 50 or a new trial under Utah Rule of Civil Procedure 59, arguing that insufficient evidence supported the jury's verdict involving the issues of future surgery and future impairment of earning capacity. Alternatively, Union Pacific argued that the trial court should order a remittitur of damages awarded for future impairment of earning capacity. Union Pacific further contended that the evidence that Dalebout has a thirty-percent chance of future surgery likely tainted the jury's award of damages for future pain and suffering and thus requested a new trial or remittitur on that basis too. The trial court denied all Union Pacific's motions for JNOV, new trial, and remittitur.

¶14 On appeal, Union Pacific does not challenge its liability for Dalebout's injury, instead attacking the damages awards for both future impairment of earning capacity and pain and suffering. Union Pacific's arguments flow from its contention that the trial court should not have admitted into evidence Dr. Bryan's testimony that Dalebout has a thirty-percent chance of future back surgery.

¶15 First, regarding future impairment of earning capacity, Union Pacific insists that, without Dr. Bryan's testimony on the thirty-percent chance, Dalebout presented insufficient evidence to support his claim. Union Pacific thus asserts the trial court should have granted its requests to direct a verdict or enter a JNOV for Union Pacific on future impairment of earning capacity. On the other hand, Union Pacific maintains that, even if other evidence supported an award here, there is a reasonable likelihood that the amount would have been lower absent Dr. Bryan's inadmissible testimony.

¶16 Second, regarding future pain and suffering, Union Pacific similarly argues that the award would have been different had Dr. Bryan's testimony on the thirty-percent chance been excised. Union Pacific thus protests the trial court's refusal to order a remittitur or new trial, without Dr. Bryan's inadmissible testimony, regarding damages for future pain and suffering. ¹

ANALYSIS

I. Overview of FELA

¶17 Recognizing the hazards of railroading, Congress passed FELA in 1908 "to shift part of the 'human overhead' of doing business from employees to their employers." Belt v. Burlington N.R.R. Co., No. A-96-305, 1997 Neb.App. LEXIS 110, at * 15, 1997 WL 411197, at * 6 (Neb.Ct.App.1997); see also 32B Am.Jur.2d Federal Employers' Liability and Compensation Acts § 2 (1996) ("[FELA] seeks to adjust the cost of injury equitably between employee and employer; to stimulate carriers to take measures for the prevention of injury to their employees; to provide a liberal rather than a static remedy for injured workers; to protect the health of employees; and to promote public interests."). However, FELA is not the same as worker's compensation--it does not cast railroad employers in the position of insuring their workers' safety. See Belt, 1997 Neb.App. LEXIS 110, at * 16, 1997 WL 411197, at * 6. Instead, a railroad's liability is based on negligence. See id. FELA exclusively controls a railroad employee's claim against a railroad employer for an on-duty...