Scaggs v. Consolidated Rail Corp.

• Decision Date: 12 October 1993
• Docket Number: No. 92-3116,92-3116
• Citation: 6 F.3d 1290
• Parties: , 38 Fed. R. Evid. Serv. 63 Arthur L. SCAGGS, Jr., Plaintiff-Appellant, v. CONSOLIDATED RAIL CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1290

6 F.3d 1290

26 Fed.R.Serv.3d 1337, 38 Fed. R. Evid. Serv. 63

Arthur L. SCAGGS, Jr., Plaintiff-Appellant, v. CONSOLIDATED RAIL CORPORATION, Defendant-Appellee.

No. 92-3116.

United States Court of Appeals Seventh Circuit.

Argued May 12, 1993.

Decided Oct. 12, 1993.

Andrew P. Sheff, Emil R. DiNardo, Charles G. Johnson (argued), Collins, Collins, Dinardo & Dolce, Buffalo, NY, for plaintiff-appellant.

Ronald J. Waicukauski (argued), James A. Mellowitz, White & Raub, Indianapolis, IN, for defendant-appellee.

Before BAUER, KANNE, and ROVNER, Circuit Judges.

BAUER, Circuit Judge.

Arthur L. Scaggs, Jr. sued Consolidated Rail Corporation ("Conrail") for negligence pursuant to 45 U.S.C. Sec. 51 et seq., the Federal Employers' Liability Act ("FELA"). The case was tried before a jury, which ruled in favor of Conrail. Scaggs filed a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. The district court denied the motions. Scaggs appeals the district court's denial of the motions as well as various evidentiary rulings.

I.

Arthur L. Scaggs, Jr. was a Conrail employee working as a brakeman at the Avon railyard in Indianapolis, Indiana in October 1988. On October 2, Scaggs was working on a consist, which is comprised of four locomotives coupled together. Scaggs drove the consist to a particular area of the yard, then remained in the consist to watch and listen for oncoming railroad cars. (Tr. I/77; II/175-76). Meanwhile, another consist a short distance away started moving using the same track as the one on which Scaggs' consist was sitting. The driver of the moving consist, Thomas Ollier, was looking behind at a brakeman and did not see that he was closing in on the stationary consist. The second consist moved 75-100 feet at a speed of 3-5 miles per hour with its lights on and its bell ringing. (Tr. IV/662-77; IV/655-60). In spite of his look-out duties and the favorable weather conditions (it was a clear night) (Tr. II/173), Scaggs did not see the approaching consist. (Tr. II/183). The two consists collided. Ironically, the safety rule of the day at the yard was "when riding in a caboose or locomotive, expect a sudden shock or movement at any time." (Tr. II/185). Later, Conrail found that Ollier had broken a safety rule by not looking in the same direction as the moving consist and put him on unpaid leave for five days. (Tr. IV/724-25).

On impact, Scaggs was thrown out of the engineer's chair and on to the floor. (Tr. I/80). Ollier climbed out of his locomotive to see what happened. When he saw Scaggs get out of the other locomotive, he asked if Scaggs was all right. Scaggs answered affirmatively. (Tr. IV/681). Another employee from the moving consist asked Scaggs how he was feeling, and Scaggs again said he was feeling okay. (Tr. IV/752). Scaggs continued working after the accident, but a little later sought medical attention. (Tr. I/97). Another Conrail employee drove him to a local hospital emergency room. (Tr. I/98). Scaggs was examined by an emergency room doctor, Dr. Kirtley, who ordered x-rays. (Kirtley Dep. at 42). Dr. Kirtley diagnosed Scaggs as having an acute cervical strain. Dr. Kirtley gave Scaggs a soft cervical collar to help support his head, and prescribed a muscle relaxant and an anti-inflammatory drug for him. (Kirtley Dep. at 38-39). Dr. Kirtley recommended that Scaggs stay home from work for 5 days. (Kirtley Dep. at 44). None of the other workers on the consists were injured.

Scaggs sought further medical treatment from his family physician. He saw Dr. Mandel, an osteopath, approximately sixty times between the collision and the trial. (Tr. III/499). Dr. Mandel's office submitted records to Conrail dated October 3, 1988 that also diagnosed Scaggs with an acute cervical strain. (Tr. III/506). The same document indicated that Scaggs could return to work on January 9, 1989, approximately three months later. That document and others stated that Scaggs could look forward to significant improvement of his condition. (Tr. III/513). At trial, Dr. Mandel claimed that his earlier diagnosis was incomplete. Dr. Mandel testified that Scaggs condition was more extensive, and that in addition to the acute cervical strain, Scaggs sustained a lumbar strain, a herniated lumbar disk, an ulnar nerve injury to his left elbow, and multiple contusions and abrasions. (Tr. III/515).

Conrail offered Scaggs company-provided medical and rehabilitative services. Scaggs declined these services, but he was treated by other physicians. Five of Scaggs' physicians testified at trial or their depositions were read into the trial record. The testimony of two orthopedic surgeons was particularly enlightening. Dr. Schaffer testified on Scaggs behalf. Dr. Schaffer wrote to Scaggs' referring physician that he believed Scaggs was "babying" himself and not participating in activities that were within his capability. He also found that Scaggs' weight hampered his recuperation. (Tr. III/386). When the complaints of pain persisted, Dr. Schaffer authorized a number of tests on Scaggs. He ordered magnetic resonance imaging ("MRI") of Scaggs' back. The MRI revealed a bulging disk. (Tr. III/363). Dr. Schaffer performed lumbar disk surgery on Scaggs after Scaggs' complaints of pain persisted. He testified that the surgery revealed that Scaggs had an extruded lumbar disk. (Tr. III/371-73). Dr. Schaffer examined Scaggs and gave him exercises to perform at home to improve his condition. When Scaggs did not improve, Dr. Schaffer believed Scaggs was not performing his exercises. (Tr. III/374). Dr. Schaffer also performed ulnar nerve surgery on Scaggs. The doctor testified that Scaggs' ulnar nerve problem was attributable to the locomotive collision. (Tr. III/360). Dr. Schaffer testified that Scaggs was permanently, but not totally, disabled. (Tr. III/381-83). He stated that Scaggs should not return to heavy railroad work, but would be capable of performing other work. (Tr. III/384). When questioned about symptoms that Scaggs was complaining about long after the locomotive collision and the surgeries, Dr. Schaffer stated that those complaints did not correspond to Scaggs earlier complaints and were too distant in time to be related to the collision. (Tr. III/400-05).

Scaggs visited another orthopedic surgeon, Dr. Suelzer. Dr. Suelzer testified for Conrail. Dr. Suelzer examined Scaggs and performed a series of tests on him to determine the extent, if any, of his back injury. The results indicated that Scaggs was prevaricating. His complaints of pain were not in keeping with the physical evidence demonstrated by the tests. (Tr. V/831-40). Dr. Suelzer reviewed the MRI images of Scaggs' back, and determined that he had only a slightly bulging lumbar disk. Dr. Suelzer rated the bulge a two on a scale of one to five, with five representing the most severe. He testified that Scaggs' disk problem was not very severe. (Tr. V/842). He also testified that the exhibit that Dr. Schaffer used at trial to illustrate Scaggs' disk injury did not represent Scaggs' condition as revealed by the MRI. (Tr. V/842). Dr. Suelzer testified that Dr. Schaffer's medical report described a more severe injury than what the medical evidence gathered at the time of the collision suggested. (Tr. V/843-49). Dr. Suelzer also reviewed Scaggs' ulnar nerve condition. He stated that Scaggs' problem was congenital, not a result of the accident. (Tr. V/848). Dr. Suelzer testified that Scaggs' continued complaints of pain and problems associated with his hand were not a result of continued ulnar nerve problems. (Tr. V/850-52). Dr. Suelzer's testimony indicated that Scaggs was malingering.

Scaggs also saw a neurosurgeon, Dr. Hall, three months after the collision. Dr. Hall found no objective evidence to corroborate Scaggs complaints of pain in his legs. (Tr. VI/1045). He also found that Scaggs tested normally for arm function. (Tr. VI/1046). Scaggs' subjective complaints of pain prompted Dr. Hall to order tests. (Tr. VI/1047). The tests revealed that as of January 13, 1989, Scaggs' possessed no objective signs of a ruptured disk. (Tr. VI/1052). Dr. Hall recommended that Scaggs participate in rehabilitative exercise therapy, not surgery, to combat his complaints of pain. (Tr. VI/1050).

Scaggs sued Conrail for negligence resulting in personal injuries, and Conrail began surveillance on Scaggs in light of the litigation. The surveillance produced no evidence that Conrail wished to present. For this reason, Conrail filed a motion in limine to bar references to the policies, practices, and procedures surrounding its surveillance, except for the direct observations of Scaggs during the course of the surveillance. (R. 37). Scaggs, however, wanted the evidence in. He claimed that it benefitted his case because the fruits (or lack thereof) of the surveillance did not support Conrail's defenses that Scaggs was malingering and that Scaggs failed to mitigate his damages. (R. 42). Conrail argued that the surveillance evidence was not relevant, but even if it was relevant, it was not probative under Federal Rule of Evidence 403. The district court granted Conrail's motion using a Rule 403 analysis to determine that the evidence was substantially more prejudicial and a waste of time than it was probative. (R. 51a/51b).

Scaggs also was barred from introducing other evidence. Scaggs sought to call an expert to testify to the speed of the moving consist and the force of impact that occurred when it hit the stationary consist. The expert was not allowed to testify under Federal Rule of Civil Procedure 37. Rule 37 allows the district court to bar expert testimony as a sanction for failure to make or cooperate in discovery.

At the close of trial, the jury was given verdict forms and sent to deliberate. The forms gave the jury three choices in their verdict. They could 1) rule in Scaggs' favor; 2) rule in Conrail's favor; or 3) find that Scaggs was...