Young v. Ill. Cent. R.R. Co.

• Decision Date: 05 November 2019
• Docket Number: NO. 2018-CA-00498-COA,2018-CA-00498-COA
• Citation: 284 So.3d 839
• Parties: Arthur YOUNG, Appellant v. ILLINOIS CENTRAL RAILROAD COMPANY, Appellee
• Court: Mississippi Court of Appeals

284 So.3d 839

Arthur YOUNG, Appellant

v.ILLINOIS CENTRAL RAILROAD COMPANY, Appellee

NO. 2018-CA-00498-COA

Court of Appeals of Mississippi.

November 5, 2019

ATTORNEYS FOR APPELLANT: M. QUENTIN EMICK JR., C. E. SOREY II, Ridgeland

ATTORNEYS FOR APPELLEE: GLENN F. BECKHAM, HARRIS FREDERICK POWERS III, Greenwood

BEFORE BARNES, C.J., McDONALD AND C. WILSON, JJ.

McDONALD, J., FOR THE COURT:

¶1. This is an appeal regarding a claim that Arthur Young, an injured railroad employee, brought against Illinois Central Railroad Company (Illinois Central) pursuant to the Federal Employer's Liability Act (FELA), 45 U.S.C. § 51 et seq. (2018). During trial, Illinois Central challenged the testimony of two of Young's experts. The circuit court granted said motion. Thereafter, a Holmes County jury found Illinois Central liable for the total amount of $1,300,000. Illinois Central challenged the verdict in several post-trial motions. It filed a motion for judgment notwithstanding the verdict (JNOV) on the jury's award of $1,000,000 for future damages and $100,000 for partial and total disability. Illinois Central also filed three motions for a new trial, claiming (1) that the jury's additional verdict of $100,000 for past and present physical pain and suffering and $100,000 for past and present emotional suffering was against the overwhelming weight of the evidence; (2) that the court erred in its rulings during the jury-selection process; and (3) that the court erred in the jury instructions given. The circuit court denied Illinois Central's post-trial motions except for the JNOV motion regarding the jury's verdict of $1,000,000 in future lost wages which the court granted. Young appealed the circuit court's judgment regarding the court's exclusion of two of his expert witnesses and the future lost wages.¹ Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. Young, a high school graduate with one year of college education, was hired to work for Illinois Central as a trackman in 2007. On January 11, 2008, Young was working for Illinois Central in Memphis, Tennessee. In the course of his duties, Young was riding as a passenger in a Kubota tractor driven by his coworker, Jerry Brooks Jr., when a dump truck operated by Illinois Central's employee Michael Paul Wallace backed into the Kubota. The collision caused the Kubota to roll over. Young reported the incident to his foreman, to his supervisor, and to the assistant chief. Young contends that although he asked to go to the hospital, he did not go because his foreman, his supervisor, and the assistant chief did not want an accident report to be filed. Young wrote a statement in which he said that he only injured his elbow. But Young later contended that he felt pain in his elbow, head, neck, and back immediately after the accident. Young was sent home for the rest of the weekend, but he did not seek immediate medical attention.

¶3. The medical testimony showed that Young was treated by his local physician, Dr. Downer, for flu-like symptoms and/or his bronchitis

on February 26, 2008; March 3, 2008; March 20, 2008; June 9, 2008; September 18, 2008; October 6, 2008; and October 14, 2008. But he never mentioned having any injuries as a result of the accident at any appointment.

¶4. In August 2008, Young wrote a letter to Illinois Central indicating that he was having mental and emotional issues as a result of the accident. Illinois Central granted him a medical leave of absence from August 4, 2008, to October 20, 2008. During Young's leave of absence, he sought psychological assistance for his nightmares from Life Help² in Greenwood.

¶5. Between October 20, 2008, and August 5, 2016, Young received sporadic orthopaedic medical care from Dr. Ronald Childress. Young's initial visit to Dr. Childress was the first time that Young complained of his alleged back injuries as a result of the accident. Throughout this time, Young continued to work for Illinois Central, and he was promoted to the position of a production-support foreman.³

¶6. On May 27, 2010, Arthur Young filed a complaint pursuant to FELA against Illinois Central in the Holmes County Circuit Court. Young sought to recover for the injuries and related damages he suffered during the January 2008 job-related accident. Illinois Central answered and denied that Young suffered any injuries.

¶7. In a pre-trial order filed on August 22, 2017, Young designated three experts to testify at trial—Dr. Ronald G. Childress, his treating orthopedic physician; Dr. Frank Giles, a vocational expert; and Dr. Larry Lynch, an economist. In the pre-trial order, Illinois Central also admitted that the January 11, 2008 accident was due to the failure to use reasonable care by one of its employees, other than Young. But Illinois Central did not admit that Young suffered the injuries he claimed. Therefore, the sole issue at trial became damages.

¶8. The case proceeded to trial on October 2, 2017. During trial, Young testified that he was hired as a track laborer but that his current position was to work as a production-support foreman. He stated that his current job entailed much of the same hard labor. He stated that after the accident he felt pain in his head, neck, back, and elbow, but he did not go to the hospital immediately after the accident allegedly because Illinois Central did not want an accident report to be filed. He stated that although he continued to go to work, he also continued to have pain. Further, Young testified that he did not feel that he could work much longer because it was getting hard for him to do anything.

¶9. Dr. Childress, Young's treating orthopaedic physician, also testified at trial. Dr. Childress testified that he first saw Young on October 20, 2008, and that Young complained of back injuries as a result of the accident. At Young's initial visit, Dr. Childress's impressions were that Young had an acute lumbar spine strain with tendency for some numbness and tingling in his feet. He also testified that Young had a tension headache

coming from an acute cervical spine strain. Dr. Childress recommended an MRI scan and EMG nerve-conduction study ; he also prescribed Young Daypro Darvocet medication. Young was told to follow up within two months or after the tests were completed.

The MRI scan was performed on March 10, 2009. The MRI scan documented a small left-lateral C3-C4 disc bulge versus a mild bony hypertrophic spurring at the left C3/4 uncovertebral joint, but there was no evidence of spinal or neuroforaminal stenosis. There was a mild desiccation and disc degeneration at C2/3 and C3/4. Young did not follow up to get these results until July 12, 2011, more than two years later.

¶10. On that visit, Dr. Childress advised Young of the MRI-scan findings. Dr. Childress also testified that Young informed him that he "was having difficulty with the prescribed medication"; therefore, Dr. Childress advised Young to start taking over-the-counter pain medication. Although Dr. Childress advised Young to follow up with him within two months, Young's next visit was on February 21, 2014. During that visit, Dr. Childress observed "fair mobility of his cervical spine with rotation of thirty degrees lateral bending, of five degrees." "He had some tenderness in his upper back and his lumbar spine to palpation." Therefore, Dr. Childress encouraged Young to do stretches and light exercises. Young's next saw Dr. Childress on May 30, 2014. During that visit, Dr. Childress noted that Young was restricted in his mobility. Young reported to Dr. Childress that he was functioning but that he was struggling to function. Dr. Childress encouraged Young to do heat treatments with hot towels and hot tub soaks. Dr. Childress also recommended that Young see him within three months, but Young did not return until August 14, 2015. During that visit, Dr. Childress advised Young to take over-the-counter medicine for his pain but to refrain from heavy activities if the pain did not subside. Young's last visit with Dr. Childress was on August 5, 2016. Dr. Childress concluded that Young suffered trauma from the January 2008 accident and that he had both an acute and a chronic cervical and lumber spine strain with cervical and lumbar disc pathology associated with his strain. Dr. Childress advised Young that if he had increasing problems and difficulty to the extent that he did not feel safe working that he should request time off or consider other options for intervention.

¶11. On direct examination, Young's counsel asked Dr. Childress about Young's ability to continue with his particular profession:

Q: Do you have an opinion based upon a reasonable degree of medical probability of Mr. Young's ability to continue with this particular profession?

A: I don't think it's in his best interest or the company's best interest to have him do so because he has [an] underlying structural problem. The fear is that he could further damage those areas that already have abnormality. He could make the disc rupture bigger to the extent he has to have a surgery. So that in my mind it would be better for him to do a job that does not require the severe straining, lifting, walking on uneven surfaces, et cetera, in an effort to avoid a problem that forces him to have a procedure done.

¶12. But on cross examination, Dr. Childress testified:

Q: I'm wrapping [up] here, Dr. Childress. You testified on direct examination that you would not recommend Mr. Young continue the very heavy work he's doing now, vibrating tools, uneven surface, working on uneven surfaces. But you also testified in your deposition he could probably be a manager indefinitely?

A: It depends on what the managing job entails. If it does not entail uneven surfaces, heavy tools, vibratory tools, and more or less that doesn't require strenuous activity, he'd have better longevity, better safety, and better capability to function.

Q: But you're not saying Mr. Young can't work anymore, are you?

A: No.

¶13. Following Dr....