Dixon v. CSX Transp., Inc., 92-1652

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Citation990 F.2d 1440
Parties, 36 Fed. R. Evid. Serv. 1344 Larry Edward DIXON; Estate of Sally H. Dixon, by her personal representative Johnathan Branch Dixon, Plaintiffs-Appellees, v. CSX TRANSPORTATION, INCORPORATED, a Virginia corporation, Defendant-Appellant, and Seaboard System Railroad, a Virginia corporation; Seaboard Systems Railroad, Inc., a Virginia corporation; CSX Corporation, a Virginia corporation, Defendants.
Docket NumberNo. 92-1652,92-1652
Decision Date13 April 1993

Thomas Ashe Lockhart, Cansler, Lockhart & Evans, P.A., Charlotte, NC, argued (Thomas D. Garlitz, on brief), for defendant-appellant.

Roger Kent Brown, Brown, Hogin & Montgomery, Charlotte, NC, argued (James R. Glover, Glover & Petersen, P.A., Chapel Hill, NC, on brief), for plaintiff-appellee Larry Dixon (Charles McB. Sasser, Cox, Gage & Sasser, Charlotte, NC, on brief), for plaintiff-appellee Sally Dixon.

Before RUSSELL, WILKINSON, and LUTTIG, Circuit Judges.


LUTTIG, Circuit Judge:

CSX Transportation, Inc., appeals from alternative judgments rendered in favor of Larry and Sally Dixon totalling $13,609,308 on a Federal Employers' Liability Act (FELA) claim and $15,109,308 on two state law claims. All three claims arose from a 1985 accident in which a train operated by CSX struck Mr. Dixon's automobile. For the reasons that follow, we vacate both judgments, dismiss the FELA claim, and remand for a new trial on the Dixons' state law claims.


Appellee Larry Dixon was a traveling agent employed by the Southern Weighing and Inspection Bureau ("SWIB"), an unincorporated association of railroads including appellant CSX Transportation. 1 On November 8, 1985, Dixon was driving west along North Carolina Highway 27 in Mecklenburg County, North Carolina, en route to Blacksburg, South Carolina, on business. Dixon made a left turn onto Rhyne Road and proceeded south toward the point at which the CSX train tracks cross Rhyne Road, fifty-eight feet from the intersection with Highway 27. At the crossing, a three- to four-foot high bank covered with weeds ran along the northern edge of the CSX railroad bed to the east of Rhyne Road.

Ralph Cox, the only independent eyewitness to the accident, was driving north along Rhyne Road toward Dixon and the CSX crossing as Dixon approached from the north. Cox testified that he first heard the whistle of the CSX train as it emerged from behind a treeline approximately 200 feet east of the crossing. At about this time, Cox looked straight ahead and saw Dixon, whom he had previously observed moving slowly toward the CSX crossing, "within a few feet of the railroad tracks." J.A. at 213. According to Cox, Dixon had been looking to his left toward the oncoming train and then had turned forward with a startled expression on his face. Apparently realizing that he did not have time to stop and back up, Dixon tried to clear the crossing in front of the lead engine, but the CSX train struck the left rear quarter panel of Dixon's automobile. The accident left Mr. Dixon a permanently brain damaged quadriplegic.

Dixon brought a personal injury suit against CSX, claiming that he was entitled to recovery, alternatively, under FELA if it were determined that he was employed by CSX at the time of the accident, or otherwise under North Carolina law. 2 Dixon's wife sought recovery for loss of consortium under North Carolina law. 3 CSX moved to bifurcate the trial on the FELA and state law claims. The district court denied the motion and allowed the Dixons to pursue both actions in the same proceeding.

At the close of the case, the district court first instructed the jury to decide Mr. Dixon's FELA claim. As to this claim, the jury answered a special verdict in Dixon's favor, finding that: (1) Dixon, in addition to being an employee of SWIB, was also employed by CSX at the time of the accident and was therefore covered by FELA; (2) CSX's negligent failures to blow the train whistle in a timely fashion, to clear known obstructions from its right of way, and to install active warning devices at the "extrahazardous" Rhyne Road crossing, were collectively a proximate cause of Dixon's injuries; (3) Dixon was not contributorily negligent; and (4) Dixon was damaged in the amount of $13,609,308--$8,609,308 for his "Financial Needs" and $5,000,000 for his pain and suffering. Notwithstanding the exclusiveness of the FELA remedy, and over CSX's objections, the district court then instructed the jury on the Dixons' state law claims. As to these claims, the jury again found that CSX had been negligent on the three grounds recited above, that Dixon was not contributorily negligent, and that he was damaged in the amount of $13,609,308. The jury awarded Mrs. Dixon $1,500,000 on her loss of consortium claim.

The district court thereafter entered judgment on the FELA verdict and ordered that if the judgment were overturned on appeal, the Dixons could nonetheless recover on the state law verdicts that had been rendered in their favor. CSX brought this appeal, challenging the district court's denial of CSX's motions to bifurcate the trial and for judgment notwithstanding the verdict (JNOV), and its admission of testimony from two of Dixon's expert witnesses. We address these challenges in turn.


CSX moved to bifurcate the trial pursuant to Fed.R.Civ.P. 42(b) so that the jury would determine in the first proceeding whether, at the time of the accident, Mr. Dixon was employed by CSX within the meaning of FELA and, depending upon its resolution of this question, would determine in the second proceeding whether CSX was liable to Dixon on either his FELA or state law claims. The district court denied the motion without comment. J.A. at 62-63.

CSX argues that the district court abused its discretion in refusing to bifurcate the trial. Although trial courts must be given wide latitude in managing the litigation before them, we agree that under the particular circumstances of this case, it was an abuse of discretion to deny the motion to bifurcate. As a consequence of the simultaneous trial of the FELA claim and the North Carolina causes of action, the jury heard inflammatory evidence on Mrs. Dixon's loss of consortium that, although relevant to the Dixons' state law claims, was irrelevant to the FELA claim, and it heard incitive evidence relevant to the FELA claim that was irrelevant to the Dixons' state law actions. The inevitable effect of the introduction of this highly prejudicial evidence was to deny CSX the fair trial to which it was entitled on both the Dixons' federal and state claims.

With respect to the loss of consortium claim, the jury heard emotional testimony from Mrs. Dixon that she had had a "wonderful marriage" with Mr. Dixon; that her husband had always been affectionate and considerate toward her; that the two had had a "wonderful sex relationship"; but that their relationship had been unalterably affected for the worse as a result of the accident. Id. at 785-87, 791-92, 807. This testimony was so powerful that, according to CSX, see Appellant's Br. at 45, several jurors openly wept during its presentation. Additionally, the Dixons introduced birthday and anniversary cards that they had exchanged over the years as evidence of the quality of the relationship that they had enjoyed prior to the accident. J.A. at 805-07, 1138-61.

The jury also viewed the videotaped deposition of Dr. Kirkwood Schultz, who testified that the accident had plunged Mrs. Dixon into a severe suicidal depression and forced her to work "when her feet were rotting off and pus was running out of her feet" and otherwise to jeopardize her health in order to keep the family together. Id. at 698-99. All of this evidence, of course, was admissible on the issue of Mrs. Dixon's damages, and perhaps even on the issue of Mr. Dixon's damages, under state law. Because loss of consortium is not actionable under FELA, however, see supra note 3, this highly prejudicial evidence was irrelevant to Mr. Dixon's FELA claim. See Minneapolis, St. P. & S. Ste. M. Ry. v. Moquin, 283 U.S. 520, 521, 51 S.Ct. 501, 502, 75 L.Ed. 1243 (1931) ("In actions under [FELA] no verdict can be permitted to stand which is found to be in any degree the result of appeals to passion and prejudice."); see also Chicago, St. P., M. & O. R. Co. v. Arnold, 160 F.2d 1002, 1008 (8th Cir.1947); Southern Pac. Co. v. Ralston, 67 F.2d 958, 959-60 (10th Cir.1933).

With respect to Mr. Dixon's FELA claim, the jury heard extensive testimony on the question of whether Mr. Dixon was employed by CSX. Two former SWIB employees testified that they considered themselves CSX employees and Mrs. Dixon and her son testified that they believed Mr. Dixon worked for the railroad. J.A. at 536-37, 559-60, 579-81, 770-71, 783-84. There was also testimony from the former general manager of SWIB that Mr. Dixon was covered under the Railroad Retirement Act and the Railroad Unemployment Insurance Act, id. at 519-21, 525-26, statutes that differ significantly from FELA in that they expressly cover weighing and inspection bureau employees, see 45 U.S.C. §§ 231(a)(1)(i), (iv); 351(a), (b). Appellees presumably intended for the jury to infer from this testimony that Dixon was, or at least thought he was, a railroad employee for purposes of FELA.

This testimony regarding Mr. Dixon's employment served as the foundation for Dixon's closing argument in which counsel characterized CSX as a "ruthless" employer more concerned with "the bottom line" than with the well-being of its employees, J.A. at 964; an employer that "no longer want[ed] to have to contribute to [its] responsibilities to the employees [it] formerly had [i.e., Mr. Dixon]," id. at 941; and an employer that had bullied employees, threatening them with termination if they did not testify in the railroad's favor at Mr. Dixon's trial. Id. at 963-64. 4 While all of this testimony was relevant...

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