Payne v. CSX Transp., Inc.

• Decision Date: 27 December 2013
• Docket Number: No. E2012-02392-COA-R3-CV,E2012-02392-COA-R3-CV
• Parties: ANNE PAYNE v. CSX TRANSPORTATION, INC.
• Court: Tennessee Court of Appeals

ANNE PAYNE
v.
CSX TRANSPORTATION, INC.

No. E2012-02392-COA-R3-CV

COURT OF APPEALS OF TENNESSEE AT KNOXVILLE

September 16, 2013 Session
Filed December 27, 2013

Appeal from the Circuit Court for Knox County No. 2-231-07 Harold Wimberly, Judge

Winston Payne brought this action against his former employer, CSX Transportation, Inc., under the Federal Employers' Liability Act ("FELA"), alleging that CSX negligently exposed him to asbestos, diesel fumes, and radioactive materials in the workplace causing his injuries.¹ The jury returned a verdict finding (1) that CSX negligently caused Payne's injuries; (2) that CSX violated the Locomotive Inspection Act or safety regulations regarding exposure to asbestos, diesel fumes, and radioactive materials; and (3) that Payne's contributory negligence caused 62% of the harm he suffered. The jury found that "adequate compensation" for Payne's injuries was $8.6 million. After the jury returned its verdict, the trial court, sua sponte, instructed the jury, for the first time, that, under FELA, its finding that CSX violated a statute or regulation enacted for the safety of its employees meant that plaintiff would recover 100% of the damages found by the jury. The court sent the jury back for further deliberations. It shortly returned with an amended verdict of "$3.2 million @ 100%." Six months after the court entered judgment on the $3.2 million verdict, it granted CSX's motion for a new trial, citing "instructional and evidentiary errors." The case was then assigned to another trial judge, who thereafter granted CSX's motion for summary judgment as to the entirety of the plaintiff's complaint. The second judge ruled that the causation testimony of all of plaintiff's expert witnesses was inadmissible. We hold that the trial court erred in instructing the jury, sua sponte, on a purely legal issue, i.e., that the jury's finding of negligence per se under FELA precluded apportionment of any fault to the plaintiff based upon contributory negligence, an instruction given after the jury had returned a verdict that was complete, consistent, and based on the instructions earlier provided to it by the trial court. We further hold that, contrary to the trial court's statements, the court did not make any prejudicial evidentiary rulings in conducting the trial, and that its jury instructions, read as a whole, were clear, correct, and complete. Consequently, the trial court erred in granting a new trial. We remand to the trial court. We direct the first trial judge to

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review the evidence as thirteenth juror and determine whether the jury verdict in the amount of $8.6 million is against the clear weight of the evidence. If it is not, the trial judge is directed to enter judgment on that verdict. If, on the other hand, the trial judge finds that the larger verdict is against the clear weight of the evidence, the court is directed to enter a final judgment on the jury's verdict of $3.2 million. The trial court's grant of summary judgment is rendered moot by our judgment. However, in the event the Supreme Court determines that our judgment is in error, we hold that the grant of summary judgment was not appropriate.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed; Case Remanded with Instructions

CHARLES D. SUSANO, JR., P.J., delivered the opinion of the Court, in which THOMAS R. FRIERSON, II, J., and D. KELLY THOMAS, SP.J, joined.

Richard N. Shapiro, Virginia Beach, Virginia; Sidney W. Gilreath and Cary L. Bauer, Knoxville, Tennessee, for the appellant, Anne Payne.

Randall A. Jordan, Karen Jenkins Young, and Christopher R. Jordan, St. Simons Island, Georgia; Evan M. Tager and Carl J. Summers, Washington, D.C.; John W. Baker, Jr. and Emily L. Herman-Thompson, Knoxville, Tennessee, for the appellee, CSX Transportation, Inc.

OPINION
I.

Payne worked for CSX as a trainman and a switchman from 1962 until his retirement in 2002. In 2005, he was diagnosed with lung cancer. He underwent extensive medical treatment, including 43 rounds of chemotherapy and 44 radiation treatments. He filed this FELA action in 2007, alleging that CSX was negligent in exposing him to asbestos, diesel fumes, and radioactive material in the course of his employment, resulting in his injuries, particularly his lung cancer. He also alleged that CSX was guilty of negligence per se when it violated several statutes or regulations enacted for the safety of its employees. CSX denied liability and alleged that Payne's contributory negligence, specifically his cigarette smoking, caused his injuries. Payne started smoking in 1962, smoked a pack a day on average for approximately 26 years, and quit in 1988. After Payne died on February 24, 2010, his widow, Anne Payne, was substituted as plaintiff.

A ten-day jury trial took place over the course of two weeks in November 2010. After the close of proof, the trial court instructed the jury and provided it with a verdict form

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including special interrogatories. To aid the reader, the jury verdict form is hereinafter set forth in its entirety, with the jury's handwritten answers in italics:

1. Was the defendant negligent as defined in these instruction[s]? Yes
2. If you answered yes to question one, did that negligence cause in whole or in part the harm suffered by plaintiff? Yes
3. If negligent, was the defendant negligent with regard to:

Asbestos exposure? Yes
Diesel exposure? Yes
Radiation exposure? Yes

If your answer to any of these is yes, did negligence of the defendant cause in whole or in part the harm suffered by plaintiff as a result of:

Asbestos exposure Yes
Diesel exposure Yes
Radiation exposure Yes

4. A. Did the defendant violate the Locomotive Inspection Act or any regulation concerning locomotives read to you regarding asbestos and was any such violation a legal cause of plaintiff's harm? Yes
B. Did the defendant violate the Locomotive Inspection Act or any regulation concerning locomotives read to you regarding diesel fumes and was any such violation a legal cause of plaintiff's harm? Yes
C. Did the defendant violate any regulation read to you regarding the operation of railroad cars and transportation of radioactive materials read to you and was any such violation a legal cause of harm suffered by plaintiff? Yes
5. If you answered yes to question two, was plaintiff negligent with regard to harm he suffered and did his negligence cause in whole or in part the harm he suffered? Yes

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6. If your answer to question five is yes, to what extent, expressed in percentage, did plaintiff's negligence cause in whole or in part the harm he suffered? 62%
7. What amount of money do you find, without deduction for any negligence which you may find on plaintiff's part, will fairly represent adequate compensation? $ 8.6 million

When the jury returned to the courtroom following its deliberations, the following colloquy took place between the trial court and the jury foreman:

THE COURT: If you will refer to the verdict, you can tell me briefly. Question No. 1, was the defendant negligent as defined in these instructions?
JURY FOREMAN: Yes.
THE COURT: Question No. 2, did that negligence cause, in whole or in part, the harm suffered by the plaintiff?
JURY FOREMAN: Yes.
THE COURT: Question No. 3, was the defendant negligent with regard to asbestos exposure?
JURY FOREMAN: Yes.
THE COURT: With regard to diesel exposure?
JURY FOREMAN: Yes.
THE COURT: With regard to radiation exposure?
JURY FOREMAN: Yes.
THE COURT: Did the negligence of the defendant cause, in whole or in part, the harm suffered by plaintiff as a result of asbestos exposure?
JURY FOREMAN: Yes.

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THE COURT: Diesel exposure?
JURY FOREMAN: Yes.
THE COURT: Radiation exposure?
JURY FOREMAN: Yes.
THE COURT: Did the defendant violate the Locomotive Inspection Act or any regulation concerning locomotives regarding asbestos, and was any such violation a legal cause of the plaintiff's harm?
JURY FOREMAN: Yes.
THE COURT: Did the defendant violate the Locomotive Inspection Act or any regulation concerning locomotives regarding diesel fumes, and was any such violation a legal cause of the plaintiff's harm?
JURY FOREMAN: Yes.
THE COURT: Did the defendant violat[e] any regulation regarding the operations of railroad cars and transportation of radioactive materials, and was any such violation a legal cause of harm suffered by the plaintiff?
JURY FOREMAN: Yes.
THE COURT: Question 5, was the plaintiff negligent with regard to the harm he suffered?
JURY FOREMAN: Yes.
THE COURT: Your answer was yes. To what extent, expressed in percentages, did the plaintiff's negligence cause, in whole or in part, the harm that he suffered?
JURY FOREMAN: 62 percent.

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THE COURT: And finally, what amount of money do you find, without deduction for any [of] the negligence, that would fairly represent adequate compensation in this case?
JURY FOREMAN: 8.6 million.

(Emphasis added.)

Immediately after the jury foreman confirmed the jury's written responses establishing the plaintiff's total damages at $8.6 million, the following took place:

THE COURT: Okay. Now, let me further inform you that by answering yes to questions listed on this form in Part 4 about the Inspection Act or any regulations, by answering yes to all of those questions, the concept of contributory

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