Koser v. Atchison, Topeka and Santa Fe Ry. Co.
| Decision Date | 06 December 1996 |
| Docket Number | No. 74678,74678 |
| Citation | 261 Kan. 46,928 P.2d 85 |
| Parties | Stephen Amos KOSER, Appellee, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. If the jury instructions, read as a whole, fairly instruct the jury on the law governing the case and are substantially correct, and the jury could not reasonably be misled by them, the instructions will be approved on appeal.
2. Refusing to give an instruction is not error when its substance is adequately covered in other instructions. A court should not by its instructions unduly emphasize one aspect of a case.
3. In a Federal Employers' Liability Act action, the employer is entitled to have the jury instructed that an award for future economic loss must be on the basis of its present value.
4. The record is examined and it is held that under the facts of this case, the district court did not err (1) in failing to give the defendant's requested instruction on present value of future economic loss and (2) in excluding a surveillance videotape from evidence.
Jeffrey P. Ray, of Lathrop & Gage, L.C., Kansas City, MO, argued the cause, and Patrick J. Gregory, of Overland Park, was with him on the briefs, for appellant.
David L. Blunt, of Blunt and Associates, Ltd., Edwardsville, IL, argued the cause, and George E. Mallon, of George E. Mallon, P.A., Kansas City, was with him on the brief, for appellee.
This is an action brought by Stephen A. Koser, a railroad employee, against the Atchison, Topeka and Santa Fe Railway Company (ATSF) under the Federal Employers' Liability Act (FELA), 45 U.S.C. § 51 et seq. (1994). ATSF conceded liability. The question of the amount of damages was submitted to a jury, which awarded Koser $1,137,860 for his personal injuries. ATSF appeals from the district court's refusal to enter a judgment notwithstanding the verdict or to vacate the judgment for a new trial. This court transferred the case from the Court of Appeals on July 22, 1996.
On October 6, 1990, the four locomotives of the train Koser was on were being fueled in Argentine, Kansas, when another train, without warning, ran into the rear of Koser's train. At the time, Koser was 44 years old and employed by ATSF as a locomotive engineer. The impact threw him forward over the engineer's seat from where he was standing near the rear door of the locomotive.
Koser testified that although he immediately felt pain in his ribs following the accident, he completed his scheduled return trip to Fort Madison, Iowa. Upon arriving in Fort Madison, Koser was taken to a hospital emergency room. There he was x-rayed, put into a cervical collar, given some medication, and sent home.
Several days later when Koser saw Dr. Cook, the ATSF company physician who acted as Koser's regular doctor, his neck had gotten progressively worse and he was experiencing some numbness in his arm. Dr. Cook recommended therapy and medication, which at that time relieved the symptoms somewhat, and referred Koser to Dr. Paul, an orthopedic specialist. Dr. Paul sent Koser to a work-hardening program and referred him to Dr. Sharp. Koser participated in the program for approximately 6 to 8 weeks. When he completed the program in April 1991, Koser continued to have numbness and pain in his arm, but he was feeling better.
On May 9, 1991, Koser was examined by Dr. Paul for the purpose of obtaining a return-to-work release. Although the doctor released him for work on May 13, Koser was not allowed to work until he had passed a rules examination and a company physical examination.
On May 13 and 14, 1991, Doug Shaw, a private investigator, conducted surveillance of Koser for ATSF. He watched Koser from noon to 6 p.m. on May 13 and from 6 a.m. to 6 p.m. on May 14. Shaw testified that on May 14, he obtained approximately 50 continuous, unedited minutes of videotape and several photographs of Koser mowing his grass.
When Koser returned to work after passing the rules examination and the company physical, he found that the train rides bothered him, but he continued to work. At trial, he testified that, due to the "constant vibration, slack action and stuff like that," work just wore him out.
In late winter of 1992, Koser, who previously had been a ski instructor, and his wife took their children on a skiing trip to Vail, Colorado. After a few runs, Koser quit skiing and watched the others. He testified: "My neck got real sore and my arm got real weak and ached and [was] quite painful." After returning home, he underwent surgery by Dr. Sharp. The pain remained in his arm, but he felt immediate relief in his neck, which lasted approximately 3 to 4 months after surgery. After returning to work, his arm got worse and the neck pain resumed. Dr. Sharp referred him to a pain clinic.
Koser testified that in the spring of 1993, when he was working, he was "always tired and just exhausted, from pain I think, and just hurting all over." In June 1993, Dr. Paul arranged for Koser to go to the Mayo Clinic, where there were people with some expertise in thoracic outlet syndrome. He saw 10-12 doctors, including Drs. Hallett and Schutt, during his 4-day stay.
In December 1993, he had surgery as recommended by Dr. Hallett. Koser testified that following the surgery, "[m]y neck felt so much better but my arm was still bothering me."
He returned to work in February 1994 with some doctor-imposed restrictions on the length of continuous train rides and the amount of weight he could lift. ATSF restricted him to yard work, but he worked long hours. Koser then felt exhausted all the time and his neck, arm, and chest hurt.
ATSF required Koser to be examined by Dr. Abrams in Kansas City in late May 1994. Koser spent approximately 2 1/2 hours with Dr. Abrams, who concluded that Koser should not be working as a railroad engineer. Dr. Hallett referred Koser to Dr. Schutt, who advised him not to return to railroad work. In June 1994, Koser presented Dr. Schutt's release to ATSF. ATSF required him to be examined by Dr. Cook, who concurred in Dr. Schutt's evaluation.
It was Dr. Abrams' opinion, "taking the surveillance tape and making an assumption that the patient can do what he was doing there," that Koser could operate a railroad engine. Based on the videotape which had been made in May 1991, Dr. Abrams concluded in February 1995 that the restrictions he placed on Koser after examining him in May 1994 could be removed.
In his deposition, Koser was asked about mowing his lawn. He testified: " 'I hire a kid or I go--now, this is in '94, I have gone out and mowed before, you know, but it hurts and I haven't done anything since the last surgery, which was in April, after the surgery.' "
John Ward provided expert testimony on economics for Koser. He testified about various calculations he had made with respect to Koser's economic losses due to the injuries sustained when Koser's train was rear-ended on October 6, 1990. Ward testified that the earnings he projected for Koser were net rather than gross in that the amounts Koser would have paid in taxes--federal and state--had been subtracted. In addition, the earnings figures used by Ward represent present cash value. Ward explained:
Ward prepared an exhibit showing what Koser's losses would be if he were unable to work and what they would be if he were able to work at something other than railroad work and earn $10 per hour plus benefits. It was admitted into evidence and used as the basis for much of Ward's direct testimony.
Ward's projected economic loss if Koser were unable to work was $1,076,311. He began with a gross earnings loss of $1,067,503. He added the present value of health and dental insurance at the rate paid by the railroad. He weighed the possibility of unemployment against the railroad's contribution for unemployment insurance. He subtractedfor federal and state taxes. He concluded that Koser's retirement contributions balanced pension benefits, thus neither reducing nor increasing the gross earnings loss. He added for the loss of household services which Koser cannot perform.
Ward's projected economic loss if Koser were able to earn $10 per hour was $759,438. He figured wages of $298,913. He added benefits at $43,073. He subtracted taxes of $25,114. He then subtracted the total from the loss calculated for Koser if he were unable to work:
$298,913 $1,076,311
k 43,073 - 316,872
----------
- 25,114 $ 759,438
--------
$316,872
At the close of the trial, 11 of the 12 jurors agreed on...
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