Kulavic v. Chicago & Illinois Midland Ry. Co.

• Decision Date: 26 July 1993
• Docket Number: Nos. 92-1707,s. 92-1707
• Citation: 1 F.3d 507
• Parties: , 125 Lab.Cas. P 10,783 Daniel L. KULAVIC, Plaintiff-Appellant, Cross-Appellee, v. CHICAGO & ILLINOIS MIDLAND RAILWAY COMPANY, Defendant-Appellee, Cross-Appellant. & 92-1907.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 507

1 F.3d 507

62 USLW 2089, 125 Lab.Cas. P 10,783

Daniel L. KULAVIC, Plaintiff-Appellant, Cross-Appellee, v. CHICAGO & ILLINOIS MIDLAND RAILWAY COMPANY Defendant-Appellee, Cross-Appellant.

Nos. 92-1707 & 92-1907.

United States Court of Appeals Seventh Circuit.

Argued Oct. 23, 1992.

Decided July 26, 1993.

John L. Swartz, Carol J. Hansen-Fines, Giffin, Winning, Cohen & Bodewes, Springfield, IL, Charles A. Collins, Collins & Ingebritson, Minneapolis, MN, Michael L. Weiner, Weiner & Kvas, St. Paul, MN, for plaintiff-appellee.

Hugh J. Graham, Dean W. Jackson, Graham & Graham, Springfield, IL, for defendant-appellant.

Before FLAUM and RIPPLE, Circuit Judges, and KAUFMAN, Senior District Judge. ^*

RIPPLE, Circuit Judge.

Daniel Kulavic was an employee of the Chicago & Illinois Midland Railway Company (C & IM) when he was injured on the job in a physical altercation with his supervisor. Subsequently, his employment was terminated when he failed to follow C & IM's request to report to work and, in the company's view, did not provide sufficient medical evidence to excuse his absence. Mr. Kulavic pursued relief under the Railway Labor Act (RLA), 45 U.S.C. Secs. 151-188 (1988), but his termination was upheld. He then brought suit in federal court under the Federal Employers' Liability Act (FELA), 45 U.S.C. Secs. 51-60 (1988), to recover for injuries sustained in the incident with his supervisor. The district court, however, determined that Mr. Kulavic was barred from presenting any evidence of future lost wages, benefits, and earning capacity from the date of his discharge. The court held that Mr. Kulavic was precluded from presenting the issue of these damages to the jury in his FELA action because the issue had been resolved in the RLA proceedings. 760 F.Supp. 137. Although the jury in the FELA action ultimately awarded damages to Mr. Kulavic, he moved for a new trial on damages or, in the alternative, for judgment notwithstanding the verdict and additur. The district court denied the motion and Mr. Kulavic now appeals. C & IM also appeals from several evidentiary rulings the district court made during the damages phase of trial. We reverse the judgment of the district court and remand for a new trial on damages. C & IM's cross-appeal is dismissed.

I BACKGROUND

A. Facts

Mr. Kulavic was employed by C & IM as a carman. While at work on August 30, 1985, Mr. Kulavic was involved in an altercation during which his supervisor physically assaulted him. Mr. Kulavic and his supervisor had disagreed over the proper method for testing air brakes on railroad cars submitted to the car department for inspection. After a heated discussion, the supervisor attacked Mr. Kulavic from behind, punching and kicking him and causing him to fall on a brake beam. ¹ Mr. Kulavic was injured in this incident. Because of their conduct, C & IM temporarily suspended both Mr. Kulavic and his supervisor from duty. Suffering from injuries incurred in the attack, Mr. Kulavic consulted and began treatment with several different doctors. He was treated for abrasions to his right forearm, left arm, and left leg. Over the course of several months, he was also treated for rib pain, temporal mandibular joint dysfunction, tinnitus, and extreme nervousness, anxiety, and depression, all allegedly stemming from the altercation with his supervisor.

Mr. Kulavic's work suspension was set to terminate on January 6, 1986, but on January 2, Mr. Kulavic advised the head of his department, Hal Bast, by letter that he was still under his doctors' care and would be unable to return to work. R. 53, part 2 at Carrier's Ex. C. Mr. Kulavic informed Bast that he would advise the railroad when he was able to return. Id. On January 3, 1986, C & IM's general surgeon, Dr. John Meyer, examined Mr. Kulavic to determine whether he was physically capable of returning to work. Dr. Meyer also requested that Mr. Kulavic make available all medical records compiled by any doctors who had examined or treated him during his work suspension. Based on the examination and the information he received from some of Mr. Kulavic's treating physicians, Dr. Meyer had come to the conclusion, by the beginning of June 1986, that Mr. Kulavic was capable of returning to work.

Bast then notified Mr. Kulavic that he was to report for work on June 9, 1986, because Dr. Meyer had approved him for regular work as a carman. R. 53, part 3 at B. On the appointed day, however, Mr. Kulavic did not report to work; instead, he telephoned the general car foreman and informed him that he was still sick and had not yet been released by his doctor. R. 53, part 3 at C. Bast then sent Mr. Kulavic a letter notifying him that his excuse was not valid unless

you can prove by medical evidence from a reputable physician that you are physically unable to work this date, and each date you are absent prior to your return to service. As always, final determination as to an employe's [sic] physical and mental ability to work will be made by the company physician.

We will have no alternative but to consider you absent without permission until such time as you return to work, or show by medical evidence why you cannot.

R. 53, part 3 at D. In response, Mr. Kulavic submitted to C & IM an insurance report with an attachment filled out by his physician, but the railroad determined that the document did not meet the required standard of "medical evidence from a reputable physician that you are physically unable to return to service." R. 53, section 3 at K. Thus, Mr. Kulavic's work absences could not be excused on the basis of his alleged continuing disability. On June 17, Bast advised Mr. Kulavic to report to C & IM for an investigation and hearing to

develop facts, and your responsibility, if any, in connection with your alleged failure to report for work as instructed, ... your alleged absence without permission, ... and your alleged failure to timely notify your supervisor you would be absent on June 10, 11, 12, 13, 16, and 17, 1986.

You are entitled to representation, to present witnesses in your own behalf and to examine and cross-examine any witnesses appearing at such investigation and hearing.

R. 54, part 7 at Carrier's Ex. LL.

The investigative hearing was held on July 15, 1986, on the premises of C & IM and both the Interrogator and the Hearing Officer were railroad employees. Mr. Kulavic attended the proceedings and was represented by a union official. Mr. Kulavic's medical records and his physicians' correspondence were examined and Mr. Kulavic was allowed to present his case to the railroad.

Ten days later, the Hearing Officer sent Mr. Kulavic a letter detailing the findings of the investigation and informing Mr. Kulavic that C & IM had terminated his employment. The Hearing Officer concluded that none of the evidence presented at the investigation served to excuse Mr. Kulavic's work absence; Mr. Kulavic had failed to present sufficient medical evidence of his inability to return to work. R. 54, part 5.

Pursuant to the procedures dictated by the RLA, Mr. Kulavic appealed his dismissal to a Public Law Board (PLB). He claimed that the railroad had violated the collective bargaining agreement (CBA) by unfairly dismissing him, and he alleged that the railroad's investigation had been improper and unjust. Thus, Mr. Kulavic submitted that his employment should be restored to him and his wages and all other benefits, plus interest, should be granted to him as relief. R. 55, part 8 at 1. A majority of the PLB, however, found no reason to interfere with the railroad's termination of Mr. Kulavic's employment. ² The PLB stated:

Upon review, we find that the investigation was conducted in a fair and impartial manner. None of claimant's agreement rights was violated. We have considered the objections of the Organization and do not find them of sufficient significance to invalidate the proceedings.

Substantial evidence was adduced in the investigation in support of the charge against claimant. There was no evidence presented in the investigation that claimant was being withheld from Carrier's service by any doctor. It is clear from the record that claimant was attempting to substitute his personal opinion as to his ability to return to work for the professional opinions of the several medical doctors involved.

Id. at 4. Thus, the PLB denied Mr. Kulavic's claim and upheld the railroad's termination. Mr. Kulavic did not appeal from the award.

B. District Court Proceedings: The FELA Action

On August 3, 1986, Mr. Kulavic filed an action in federal court alleging liability against C & IM under the FELA. See 45 U.S.C. Secs. 51-60. Mr. Kulavic sought redress for the injuries he had sustained in the altercation with his supervisor. Mr. Kulavic claimed that C & IM had negligently caused, at least in part, his numerous injuries. The district court bifurcated the trial into a liability phase and a damages phase. In the liability phase, the jury found C & IM eighty-five percent negligent and Mr. Kulavic fifteen percent negligent for his injuries. Thus, the railroad was responsible for eighty-five percent of any damages that the jury might award to Mr. Kulavic in the second phase of trial.

Prior to trial on liability, C & IM had filed a motion in limine seeking to bar Mr. Kulavic from seeking lost earnings, fringe benefits, and loss of earning capacity from the date of his discharge onward. C & IM argued that these damages had already been addressed and resolved by the PLB when it reviewed the railroad's dismissal of Mr. Kulavic. The district court agreed and granted the railroad's motion. However, after the jury brought back the negligence allocations, but prior to trial on damages, the district court revisited the issue of the preclusive effect of the PLB's decision. Because the court believed the question to be both important to the litigation and novel, it ordered the parties to submit supplemental briefs on the issue....