O'Neill v. BNSF Ry. Co., A10-1987

• Decision Date: 12 September 2011
• Docket Number: A10-1987
• Parties: Charles B. O'Neill, Appellant, v. BNSF Railway Company, a Delaware corporation, Respondent.
• Court: Minnesota Court of Appeals

Charles B. O'Neill, Appellant,

v.BNSF Railway Company, a Delaware corporation, Respondent.

A10-1987

STATE OF MINNESOTA IN COURT OF APPEALS

Filed September 12, 2011

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3(2010).

Affirmed Ross, Judge

St. Louis County District Court

FileNo. 69DU-CV-09-38

Cortney S. LeNeave, Richard L. Carlson, Hunegs, LeNeave & Kvas, P.A., Minneapolis, Minnesota (for appellant)

Diane P. Gerth, Patrick J. Sweeney, Eric E. Holman, Ricke & Sweeney, P.A., St. Paul, Minnesota (for respondent)

Considered and decided by Stauber, Presiding Judge; Stoneburner, Judge; and Ross, Judge.

UNPUBLISHED OPINION

ROSS, Judge

Charles B. O'Neill worked for about 25 years for the BNSF Railway Company and, ten years after he transferred from physically challenging jobs as brakeman and switchman to a sedentary post, he began suffering from progressive deterioration of hisshoulder.Following a jury verdict in respondent railroad's favor on O'Neill's claims under the Federal Employers' Liability Act (FELA) and FederalSafety Appliance Act (FSAA) and denial of O'Neill's post-trial motions, O'Neill appeals and argues that the district court erred by refusing to submit the FSAA claim to the jury and denying his motion for judgment as a matter of law on the issue of causation.We affirm.

FACTS

From the mid-1970s to 1986, O'Neill worked as a switchman and brakeman in train yards belonging to Burlington Northern Railroad, which later became BNSF.From 1986 to the mid-1990s, he worked approximately 85% of the time as a brakeman and switchman and the remainder as a yardmaster, a sedentary position.He then became a full-time yardmaster.

O'Neill's job duties as a switchman and brakeman between the mid-1970s and the mid-1990s included tying handbrakes, getting on and off moving equipment, setting and disengaging rail handbrakes, throwing rail switches, coupling air hoses between railcars, climbing railcar ladders, hanging on the side of railcars, lifting draw bars, releasing broken "knuckles," and releasing pin lifters.O'Neill asserts that many of the rail switches were old and difficult to throw, that the hoses became fused and difficult to couple, and that the handbrakes were sometimes difficult to operate.

In December 2005, approximately ten years after he stopped working as a switchman or brakeman, O'Neill noticed pain in his right shoulder.He saw Dr. Graham Ritts, an orthopedic surgeon, in May 2006.He then submitted an injury report to BNSF.In it, he alleged progressive deterioration of his right shoulder as a result of repetitiveactivity over a 25-year period while working as a switchman.In August 2006, Ritts operated on O'Neill's right shoulder, and O'Neill returned to work several months later with restrictions.In June 2008, Ritts examined O'Neill for left shoulder pain.In September 2008, O'Neill submitted another injury report to BNSF, this time alleging a "cumulative-trauma injury" to his left shoulder as a result of working for over 20 years as a switchman, switch foreman, and brakeman for BNSF and its predecessors.O'Neill retired in June 2009 for reasons unrelated to his shoulder condition.

In December 2009, O'Neill filed suit against BNSF, asserting two personal-injury claims under the Federal Employers' Liability Act (FELA), 45 U.S.C. §§ 51-60(2008).In count one, he alleged that he had suffered cumulative musculoskeletal dysfunction and impairment of his upper body, torso, and shoulders as a result of BNSF's negligent failure to provide a reasonably safe place to work.In count two, he alleged that BNSF's violations of the Federal Safety Appliance Act (FSAA), 49 U.S.C. §§ 20301-20304,21302, and21304 (1988), had caused him injury.

At trial, O'Neill testified that, when working as a brakeman and a switchman, he encountered defective and hard-to-throw switches on a daily basis; that getting on and off moving railcars was stressful to his shoulders; and that he encountered defective pin lifters and handbrakes between 10% and 20% of the time.But on cross-examination, he was unable to identify any specific piece of equipment that had any defect, explaining that "there were just too many of them" to account for them all.O'Neill provided no documentation that he ever complained about any of the equipment that allegedly caused his injuries, and he admitted that although he became a full-time yardmaster in the mid-1990s, he did not notice or report any pain in his shoulder until 2005.He admitted that he never had any pains, problems, complaints, or symptoms with his shoulders while working as a brakeman or switchman.O'Neill testified that, aside from a non-work-related shoulder injury in 1990(from which he recovered fully), he never had any shoulder symptom while working as a brakeman or a switchman.

Each party called an orthopedic surgeon to opine as to whether O'Neill's employment activities caused his shoulder injuries.Dr. Ritts began testifying in favor of O'Neill's causation theory.But he stated, "[T]he whole [causation issue] to me hinges on whether [O'Neill] physically did all of the very strenuous activities for ten plus years leading up to 2006."He then acknowledged that he was unaware that O'Neill never had a symptom while working as a brakeman or switchman or at any time before 2005.Dr. Ritts also acknowledged that he was unaware that O'Neill was no longer working as a brakeman or switchman in 2006, and he stated that if O'Neill had not engaged in physically strenuous activities "from 2000 on," his opinion would be that O'Neill's injuries were "not causally related" to his railroad work.Dr. Ritts then opined that nonstrenuous yardmaster activity performed by O'Neill in the last decade of his career "didn't contribute" to his shoulder symptoms.And although Dr. Ritts said he felt "strongly" that O'Neill's shoulder tendonitis was related to the accumulated wear of O'Neill's 20 years of heavy work (and to his age and diabetes), he conceded that the absence of strenuous activity during the decade before the symptoms appeared in December 2005 could impact his opinion on causation.

Dr. Elmer Salovich, BNSF's expert witness, opined that O'Neill's work as a brakeman and a switchman did not cause his shoulder condition.Dr. Salovich stated that "there's no temporal relationship between [O'Neill's] work activity before he started working as a yard master and the current diagnosis and symptoms that he's developed in 2005."He explained that there is no temporal relationship between "something that happened 15 years ago or so and [what O'Neill] presented with in 2006."Dr. Salovich also testified that the fact that O'Neill never complained about any shoulder pains or problems while working as a brakeman and a switchman indicates that "he didn't have any activity at work that would cause him to have any injury to his shoulders."

After the close of evidence, BNSF moved for a directed verdict on the FSAA claim, arguing that O'Neill had failed to identify a specific piece of defective equipment that caused his injuries or that he experienced any symptoms while performing his brakeman or switchman tasks.The district court granted the motion and did not submit the FSAA claim to the jury.

The district court rejected BNSF's proposed jury instruction on causation in O'Neill's remaining (FELA) claim, which set out a proximate-cause standard, in favor of O'Neill's proposed instruction, which allowed the jury to find causation if "any negligence of the Defendant contributed in any way toward any injury or damage suffered by Plaintiff."The jury found that both parties were negligent but that neither party's negligence caused O'Neill's alleged shoulder injuries.It awarded O'Neill $22,771 for past and future pain and suffering, medical expenses, and lost wages.

O'Neill moved the court for a new trial under Minnesota Rules of Civil Procedure 59.01 on the grounds that the district court erred as a matter of law by granting BNSF's motion for a directed verdict and refusing to submit the FSAA claim to the jury and the jury's findings on causation and damages were against the weight of the evidence.O'Neill also moved for judgment as a matter of law (JMOL) under rule 50.02 on the issue of causation.The district court denied the motions, and this appeal follows.

DECISION

I

O'Neill challenges the district court's grant of a directed verdict in BNSF's favor on O'Neill's FSAA claim.

"A district court may grant a motion for a directed verdict when, as a matter of law, the evidence is insufficient to present a question of fact to the jury."Wall v. Fairview Hosp. & Healthcare Servs., 584 N.W.2d 395, 405(Minn.1998)."[T]he district court must treat as credible all evidence from the nonmoving party and all inferences that may be reasonably drawn from that evidence."Id.A directed verdict should be granted

only in those unequivocal cases where (1) in the light of the evidence as a whole, it would clearly be the duty of the trial court to set aside a contrary verdict as being manifestly against the entire evidence, or where (2) it would be contrary to the law applicable to the case.

Jerry's Enters., Inc. v. Larkin, Hoffman, Daly & Lindgren, Ltd., 711 N.W.2d 811, 816(Minn.2006).On appeal from a directed verdict, this court makes an independent determination of whether sufficient evidence existed to present a fact question to the jury.Boone v. Martinez, 567 N.W.2d 508, 510(Minn.1997).In making this determination,we review the evidence in a light most favorable to the nonmoving party.Id.The issue here is therefore whether O'Neill has shown that sufficient evidence existed to establish a question of fact for the jury on his FSAA claim.

The FSAA"requires rail cars to be equipped with enumerated safety features, such as certain types of couplers, brakes, running boards, and handholds."Union Pac. R. Co. v. Cal. Pub. Utilities Com'n, 346 F.3d 851, 869(9th Cir.2003)...