Taylor v. Norfolk S. Ry. Co.

• Decision Date: 24 April 2020
• Docket Number: Court of Appeals No. E-18-036
• Citation: 2020 Ohio 2657
• Parties: Paul Taylor Appellant v. Norfolk Southern Railway Company Appellee
• Court: Ohio Court of Appeals

2020 Ohio 2657

Paul Taylor Appellant v. Norfolk Southern Railway Company Appellee

Court of Appeals No. E-18-036

COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY

April 24, 2020

Trial Court No. 2016-CV-0196

DECISION AND JUDGMENT

Charles M. Murray, Florence J. Murray and Joseph A. Galea, for appellant.

David A. Damico, Edwin B. Palmer and Ira L. Podheiser, for appellee.

OSOWIK, J.

{¶ 1} This is an appeal from a judgment of the Erie County Court of Common Pleas which entered a judgment on a jury verdict in favor of appellee. For the reasons set forth below, this court affirms the judgment of the trial court.

{¶ 2} On March 10, 2016, as amended on March 30, 2017, plaintiff-appellant Paul Taylor filed a complaint against his employer, defendant-appellee Norfolk Southern Railway Company, setting forth claims of breach of duty to provide a safe working environment and negligence under the Federal Employer's Liability Act, 45 U.S.C. 51-60 ("FELA"), for exposing him and others to harmful levels of "occupational noise." Appellant alleged that as a machinist for appellee at a local railyard since 2005, he was required to work in close proximity to locomotives and other railroad equipment that emitted excessive noise during railyard operations that, even with protective devices, resulted in his tinnitus. Appellee generally denied the allegations and asserted a number of affirmative defenses.

{¶ 3} Discovery by the parties ensued, and each retained expert witnesses. In response to a flurry of disputed motions in limine, the trial court ruled on 12 in limine motions on March 27, 2018, held a Daubert hearing for unresolved in limine matters on April 6, 2018, and received post-hearing briefing by the parties. The trial court then ruled on the remaining in limine matters on April 19, 2018. After additional pre-trial disputes were resolved by the trial court, a seven-day jury trial began on May 15, 2018. On May 24, 2018, the jury returned a verdict in favor of appellee, which was journalized on June 8, 2018. Appellant then timely filed this appeal setting forth seven assignments of error:

I. The trial court erred by excluding the testimony of Plaintiff's treating physician pursuant to Daubert standards.

II. The trial court erred by failing to grant Plaintiff's motion for a continuance to obtain a new medical expert witness.

III. The trial court erred by permitting the Defendant to make comments regarding the economic activity created by Defendant's operations at the Moorman Yard.

IV. The trial court erred by denying Plaintiff's motion for a jury view.

V. The trial court erred by limiting Plaintiff's cross-examination of a defense witness on the basis that the cross-examination concerned matters protected by the work product doctrine.

VI. The trial court erred by permitting Defendant to make a closing argument suggesting that railroad workers assume certain level of risk inherent in their employment.

VII. The trial court's cumulative error was sufficiently prejudicial to Plaintiff as to deprive the Plaintiff of a fair trial.

A. Evidence Admissibility

{¶ 4} We will address all assignments of error together as they collectively challenge the trial court's decisions on the admissibility of evidence at trial. We review a trial court's decision on admissibility of evidence, including decisions granting or denying motions in limine, for an abuse of discretion. Estate of Johnson v. Randall Smith, Inc., 135 Ohio St.3d 440, 2013-Ohio-1507, 989 N.E.2d 35, ¶ 22. Abuse ofdiscretion "'connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable.'" Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983), quoting State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).

1. Excluding Expert Testimony

{¶ 5} In support of his first assignment of error, appellant argued the trial court erred when it excluded his treating otolaryngologist, Erik W. Nielsen, M.D., from testifying as to his expert opinions on the medical causation of appellant's tinnitus. Appellant argued although the trial court correctly recognized Dr. Nielsen as an expert, it erred when it determined Dr. Nielsen was not qualified to provide an opinion on the medical causation of tinnitus pursuant to Evid.R. 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Appellant urged us to follow our decision "on the reliability of the doctors' causation opinions" when the practitioner relied on his patient for the workplace exposure and medical history in Cutlip v. Norfolk Southern Corp., 6th Dist. Lucas No. L-02-1051, 2003-Ohio-1862, ¶ 47.

{¶ 6} In response, appellee argued the trial court did not err because Dr. Nielsen's differential diagnosis of appellant's tinnitus was based on unreliable speculation.

i. FELA Negligence

{¶ 7} FELA provides, "Every common carrier by railroad while engaging in commerce * * *, shall be liable in damages to any person suffering injury while he isemployed by such carrier in such commerce, * * * for such injury * * * resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier * * *." 45 U.S.C. 51.

{¶ 8} A FELA plaintiff has the burden to prove four elements.

[The] plaintiff must present more than a scintilla of evidence to prove that: (1) an injury occurred while the plaintiff was working within the scope of his or her employment with the railroad, (2) the employment was in the furtherance of the railroad's interstate transportation business, (3) the employer railroad was negligent, and (4) the employer's negligence played some part in causing the injury for which compensation is sought under the Act.

Hardyman v. Norfolk & W. Ry. Co., 243 F.3d 255, 258-59 (6th Cir.2001). In this case, the parties stipulated to the first two FELA elements, leaving the jury to determine the third and fourth elements of appellant's FELA claim, known as FELA negligence and FELA causation, respectively.

[FELA] imposes liability only for negligent injuries. But the issue of negligence is one for juries to determine according to their finding of whether an employer's conduct measures up to what a reasonable and prudent person would have done under the same circumstances. And a jury should hold a master "liable for injuries attributable to conditions under his control when they are not such as a reasonable man ought to maintain in thecircumstances," bearing in mind that "the standard of care must be commensurate to the dangers of the business."

Wilkerson v. McCarthy, 336 U.S. 53, 61, 69 S.Ct. 413, 93 L.Ed. 497 (1949), quoting Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 67, 63 S.Ct. 444, 87 L.Ed. 610 (1943).

{¶ 9} While state and federal courts have concurrent jurisdiction over FELA claims, federal law governs FELA claims. Norfolk Southern Ry. Co. v. Sorrell, 549 U.S. 158, 165, 127 S.Ct. 799, 166 L.Ed.2d 638 (2007), citing 45 U.S.C. 56. When FELA cases are adjudicated in a state court, state procedural rules will apply, "but the substantive law governing them is federal.'" Vance v. Consol. Rail Corp., 73 Ohio St.3d 222, 227, 652 N.E.2d 776 (1995), quoting St. Louis Southwestern Ry. Co. v. Dickerson, 470 U.S. 409, 411, 105 S.Ct. 1347, 84 L.Ed.2d 303 (1985).

That FELA is to be liberally construed, however, does not mean that it is a workers' compensation statute. We have insisted that FELA "does not make the employer the insurer of the safety of his employees while they are on duty. The basis of his liability is his negligence, not the fact that injuries occur." And while "[w]hat constitutes negligence for the statute's purposes is a federal question," we have made clear that this federal question generally turns on principles of common law: "[T]he Federal Employers' Liability Act is founded on common-law concepts of negligence and injury, subject to such qualifications as Congress has imported into those terms." * * * Thus, although common-law principlesare not necessarily dispositive of questions arising under FELA, unless they are expressly rejected in the text of the statute, they are entitled to great weight in our analysis. (Citations omitted.)

Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 543-44, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994).

{¶ 10} Appellant heavily relies on our decision in Cutlip to support this assignment of error. However, unlike this case, the jury in Cutlip found the railroad was negligent under FELA, and then proceeded to determine FELA causation. The May 24, 2018 jury verdict in this case unanimously answered "No" in response to interrogatory No. 1, which asked, "Do you find that Norfolk Southern Railway Company was negligent in failing to provide Paul Taylor with a reasonably safe place to work?" As instructed by the trial court, "If six or more of you answer no, your deliberations are complete. Answer no more Interrogatories and sign the General Verdict Form for the defendant," which the jury did. The jury did not reach interrogatory No. 2 on FELA causation, nor the remaining interrogatories Nos. 3 through 7. The verdict form unanimously signed by the jury found in favor of appellee and against appellant.

{¶ 11} "To prevail on a FELA claim, a plaintiff must 'prove the traditional common law elements of negligence: duty, breach, foreseeability, and causation.'" Adams v. CSX Transp., Inc., 899 F.2d 536, 539 (6th Cir.1990), quoting Robert v. Consol. Rail Corp., 832 F.2d 3, 6 (1st Cir.1987).

{¶ 12} For the duty prong of FELA negligence, we find the record shows appellee had a duty, irrespective of Dr. Nielsen's testimony, to provide appellant with a reasonably safe work environment. "There is no doubt that an employer has a responsibility under the FELA to provide a safe place to work." Vance at 231, citing Atchison, Topeka & Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 558, 107 S.Ct. 1410, 94 L.Ed.2d 563 (1987). "FELA is a negligence-based statute. A railroad's...