Fulk v. Illinois Cent. R. Co.

• Decision Date: 05 April 1994
• Docket Number: No. 93-1404,93-1404
• Citation: 22 F.3d 120
• Parties: Catherine L. Turner FULK, Administrator of the Estate of Larry D. Turner, Deceased, and Catherine Turner Fulk, Plaintiffs-Appellants, v. ILLINOIS CENTRAL RAILROAD COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 120

22 F.3d 120

Catherine L. Turner FULK, Administrator of the Estate of Larry D. Turner, Deceased, and Catherine Turner Fulk, Plaintiffs-Appellants, v. ILLINOIS CENTRAL RAILROAD COMPANY, Defendant-Appellee.

No. 93-1404.

United States Court of Appeals Seventh Circuit.

Argued Nov. 29, 1993.

Decided April 5, 1994.

Thomas J. Logue (argued), Glenn & Logue, Mattoon, IL, for plaintiff-appellant.

Richard F. Record, Jr. (argued), Craig & Craig, Mattoon, IL, Charles W. Webster, IL Cent. R. Co., Chicago, IL, for defendant-appellee.

Before BAUER and FLAUM, Circuit Judges, and ROSZKOWSKI, District Judge. ^*

FLAUM, Circuit Judge.

Catherine Turner Fulk ("Fulk") filed a claim for damages against the Illinois Central Railroad Company ("Illinois Central") under the Federal Employers Liability Act ("FELA"), 45 U.S.C. Sec. 51 et seq. Fulk alleged that various acts of negligence by Illinois Central caused the death of her late husband, Larry D. Turner ("Turner"). In particular, Fulk's Amended Complaint raised four separate charges of negligence. ¹ The case went to trial on December 17, 1992, bifurcated as to the issues of liability and damages. At the close of evidence, the district court allowed in part and denied in part Illinois Central's Motion for Judgment as a Matter of Law. Fed.R.Civ.P. 50(a). Specifically, the court granted judgment on paragraph 12(d) of the Amended Complaint. Thereafter, the jury returned a verdict in favor of Illinois Central on the three remaining issues. Following the court's entry of judgment for Illinois Central, Fulk timely filed a Motion for New Trial, Fed.R.Civ.P. 59, which the court denied in a brief order entered on February 5, 1993. Fulk appeals from this order. We affirm.

I.

In their briefs, both parties presented encyclopedic recitals of the facts adduced at trial. We reproduce here only those facts necessary to set the context and decide the issue before us.

At the time of his death on November 19, 1990, Larry Turner had been employed as a switchman for the Illinois Central Railroad for almost twenty years. As a switchman, Turner's daily routine required him to walk several miles a day over rock ballast and to throw perhaps as many as fifty switches, some of which were difficult to throw because of their age or state of disrepair. In short, his job often involved long hours and strenuous work.

Turner's medical records indicate that he suffered from high blood pressure throughout his career. Periodic physical examinations from 1972 through 1982 revealed a few temporarily disabling ailments, but Turner's blood pressure apparently was under control as it never caused him to be disqualified from work. On July 25, 1983, however, Dr. J.R. Mallory examined Turner on behalf of Illinois Central and found him to be "moderately overweight and hypertensive." Dr. Mallory notified Illinois Central that Turner could be continued in service, but required Turner to submit a status report in two weeks regarding his weight and blood pressure. Illinois Central then sent a letter reflecting Dr. Mallory's directive to Turner. Just over a month later, Turner was re-examined by Dr. Mallory (this time as Turner's private physician) who found improvement in Turner's blood pressure and weight. Dr. Mallory prescribed medication and requested another status report in six months. Once again, Dr. Mallory transmitted his findings to Illinois Central, which, in turn, sent a letter to Turner imparting the doctor's orders. After the six month interval had passed, Dr. Mallory examined Turner and reported to Illinois Central that Turner's hypertension and weight were under satisfactory control. The doctor told Turner that he should continue follow-up with a private doctor, but no longer required status reports. Illinois Central again sent Turner a letter memorializing Dr. Mallory's findings.

From 1986 to 1988, Turner visited various doctors for treatment of assorted ailments, including high blood pressure. As of May 4, 1988, it appears that Turner had settled on Dr. Mark Dettro as his private physician. In that capacity, Dr. Dettro examined Turner on several occasions and prescribed Lopressor to treat Turner's hypertension. On September 25, 1989, Turner submitted to Illinois Central a request for a periodic examination, and was examined four days later by Dr. Dettro. In his report, Dr. Dettro stated that Turner's hypertension was under "poor control," but nevertheless certified that Turner was physically able to work "various jobs." In addition, Dr. Dettro told Turner to return (as a private patient) in sixty days for a check-up. On October 11, 1989, Illinois Central's medical officer notified Turner's employing officer that Turner was physically qualified as a brakeman. Dr. Dettro's report to Illinois Central makes no mention of follow-up examinations and the record indicates no further communications by Illinois Central to Turner with respect to Dr. Dettro's report or recommendations.

At trial, Dr. Dettro testified that he, in fact, believed he was examining Turner for work as a brakeman, a job which he understood to require "low to medium physical exertion." Dr. Dettro further testified that, in view of Turner's high blood pressure, he would not have approved Turner for continued service if he had appreciated the distinction between a brakeman and a switchman. Dr. Dettro was certain that he communicated to Turner the seriousness of his condition and the need to continue taking his medication and schedule periodic check-ups. Dr. Dettro also testified that Turner failed to schedule a return visit within sixty days, or at any time prior to his death. After Turner neglected to appear as requested, Dr. Dettro did not attempt to contact Turner. Further, the record discloses no evidence of Turner visiting any doctors after his September 29, 1989, examination.

On November 19, 1990, Turner suffered a fatal ventricular arrhythmia while on the job. At trial, Dr. Stuart Frank, a cardiologist, testified for Fulk. According to Dr. Frank, an autopsy of Turner showed evidence of congestive heart failure that had been present for "weeks, months, or even longer, possibly." In Dr. Frank's opinion, this condition could have been diagnosed if Turner had been seen by a physician "certainly in the few days or few weeks prior to his death." Dr. Frank believed that Turner should have been examined frequently enough to ascertain whether his blood pressure was under control, but Dr. Frank could not say precisely how often. If Turner's blood pressure had been treated regularly, and if he had lost weight and stopped smoking, Dr. Frank testified that Turner probably would have lived out the normal life expectancy for a man his age.

Although Dr. Frank testified that the autopsy report showing excessive heart weight revealed a "gross discrepancy" with Dr. Dettro's clinical finding of a normal heart size, Dr. Frank had no criticism of Dr. Dettro's September 1989 examination of Turner. Dr. Frank testified that while Dr. Dettro's examination could not have determined the size of the heart, it could have determined whether Turner had congestive heart failure at that time.

Dr. Gerry Smyth, a cardiologist, testified as an expert for Illinois Central. It was Dr. Smyth's opinion that Turner could not have been in congestive heart failure at the time of Dr. Dettro's examination. In Dr. Smyth's view, Turner's congestive heart failure and heart disease could not have been discovered unless Turner had submitted to an examination within a month or so of his death. Thus, Dr. Smyth did not believe that Turner's death would have been avoided even if Illinois Central had required regular examinations as frequently as every six months "unless the examination happened to have just occurred within a month prior to his death."

II.

Fulk contends that she is entitled to a new trial because the district court erred in granting judgment as a matter of law to Illinois Central on the allegations raised in paragraph 12(d) of her Amended Complaint. We review a district court's decision to grant judgment as a matter of law de novo. Harrison v. Dean Witter Reynolds, Inc., 974 F.2d 873, 884 (7th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 2994, 125 L.Ed.2d 688 (1993); Warrington v. Elgin, Joliet & Eastern Ry. Co., 901 F.2d 88, 89 (7th Cir.1990). Viewing the evidence in the light most favorable to the nonmoving party, we must ascertain whether there is any evidence upon which a jury could reach a verdict for the party producing it, upon whom the onus of proof is imposed. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S.Ct. 2505, 2511-12, 91 L.Ed.2d 202 (1986); Warrington, 901 F.2d at 89-90.

We are, of course, mindful that Fulk's case arises under the FELA, a broad remedial statute that is to be construed liberally in order to effectuate its purposes. Kulavic v. Chicago & Illinois Midland Ry. Co., 1 F.3d 507, 512 (7th Cir.1993). As we recently noted, the FELA "provides railroad workers not only with substantive protection against negligent conduct by the railroad, but also affords an injured worker a remedy suited to his needs, untrammeled by many traditional defenses against tort liability." Id. (citing Atchison, T. & S.F. Ry. v. Buell, 480 U.S. 557, 565, 107 S.Ct. 1410, 1415, 94 L.Ed.2d 563 (1987)). Hence, it is not surprising that the quantum of evidence necessary to establish liability under the FELA is lower than that required in an ordinary negligence action. Harbin v. Burlington Northern Ry. Co., 921 F.2d 129, 131-132 (7th Cir.1990) (noting examples of FELA actions that were submitted to a jury based upon "evidence scarcely more substantial than pigeon bone broth"). The test of a jury case under the FELA "is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury ... for which damages are sought." Rogers v. Missouri Pacific R.R., 352 U.S. 500, 506,...