Petition — Southern Pacific Transportation Co. v. Norman

Supreme Court, U.S.

82-1182 | a: D

|

JAN JE 1983

ALEXANDER L. STEVAS

POG: sce: bin pac

IN THE

Supreme Court of the United States

October Term, 1983

SOUTHERN PACIFIC TRANSPORTATION COMPANY,

Petitioner,

vs.

Jimmy L. NORMAN,

Respondent.

Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit.

JosEPH H. CUMMINS,

JOHN J. CORRIGAN,

888 West Sixth Street,

Suite 300,

Los Angeles, Calif. 90017,

(213) 680-4400,

Attorneys for Petitioner,

Southern Pacific Transportation Company.

Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622

.

Questions Presented for Review.

1. Whether a jury instruction on the subject of causation

in an action for personal injuries under the Federal Em-

ployees Liability Act, hereinafter FELA, may properly in-

clude the phrase ‘‘no matter how small’’.

2. Whether the overall jury charge in an FELA case,

which uses the words ‘‘proximate’’ or ‘‘proximately’’ some

fourteen times is prejudicially deficient if it does not include

a definition of proximate causation.

3. Whether the principle of proximate causation must

be included in the jury charge in an action for personal

injuries brought under the FELA.

4. Whether a jury in a FELA case may award damages

for future pain and suffering in the total absence of any

evidence that the plaintiff will in fact have pain and suffering

in the future.

List of All Parties.

All parties appear in the caption of the case.

Designation of Corporate Relationships.

Southern Pacific Transportation Company, filing this

Petition for Writ of Certiorari as Petitioner in this proceed-

ing, states that:

This is its original Designation of Corporate Relation-

ships.

Southern Pacific Company is the parent company of

Southern Pacific Transportation Company.

Southern Pacific ‘Transportation Company has an own-

ership interest in the following subsidiaries:

Central California Traction Company

Harbor Belt Line Railroad Company

Los Angeles Union Passenger Terminal

The Ogden Union Railway & Depot Company

Portland Terminal Railroad Company

Portland Traction Company

St. Louis Southwestern Railway Company

Sunset Railway Company

Trailer Train Company

Southern Pacific Transportation Company owns an indirect

ownership interest in the following companies through its

ownership of St. Louis Southwestern Railway Company:

Acton & Southern Railway Company

Arkansas & Memphis Railway, Bridge & Union Depot

Company

Dallas Terminal Railway & Union Depot Company

Glascar, Inc.

Kansas City Terminal Railway Company

Main Street Warehouse Company

St. Louis Southwestern Railway Company of Texas

Southern Illinois & Missouri Bridge Company

The Southwestern Town Los Corporation

Terminal Railroad Association of St. Louis

eee

TABLE OF CONTENTS

Page

Questions Presented for Review ................cceceeeeees i

OO Sie Ge WIE cckdesadaubcueuessccdecunancetnsoacavessies i

Designation of Corporate Relationships .................. ii

SINE GUNES Sutieddannteaaecnsrstapaenabssabanedstdncsxsuns l

INE oni cick sasvavaciniens sccadsmobseebeseaconansnane l

ET TEIN fons cho cunechuntsnedsuamieccennubecwnenanes 2

Statement of the Case ....... Kab eadananencetMRecdaubauiandal 2

PEI ado pi Pale Frsvisosakeun ty sncvcoupustssinnnsyanvspeusasenh 8

Point I

This Court Has Not Spoken Authoritatively on the

Proper Content and Wording of Causation Instruc-

tions in Jury Trials Under the FELA ............... 8

Point Il

The Principle of Proximate Causation Should Be In-

cluded and Defined in the Instructions to the Jury

Dy Cea PE ide darter sananccedenavonss vachuesesana 9

Point III

Inclusion of the Phrase ‘‘No Matter How Small’’ in

an FELA Causation Instruction Is Prejudicial

MUU “cc cud das ausssuauucdchodiesuanewarbibedeisasiacneeriese 1]

Point IV

A Jury in an FELA Case May Not Award Damages

for Future Pain and Suffering in the Absence of

Competent Testimony That Future Pain and Suf-

SE EN IED, cilcinedoantebacticadeuseesssncesasee ss 15

RRL rcatabunscucursdsbalsaeneieusetebiremincasatineans 20

Appendix A. Memorandum ...............065 App. p. 1

Order on Motion for Stay of Mandate (Rule 41(b)

SUM ECD cats ch candavessanssayubhonaknosenesscnnatease 3

iv

TABLE OF AUTHORITIES

Cases Page

Almandarez v. Atchison, Topeka & S. Fe Railway, 426

Fee WD CEM PIG SUR MGEEGD scsancssniectacsscvsecsxacsone 10

Bertrand v. Southern Pacific, 282 F.2d 569 (1960, 9th

MUR hdd bu cdek a dhedshachiverdinrcausGkeskeisassedcanesaavenees 9

Campbell v. American Foreign SS Corp., 116 F.2d 926

(1941, 2nd Cir.), cert. den. 313 U.S. 573, 85 L.Ed.

RIT ccd tncunubdsdvidesesayasitassaiuesecanacesoicssei ety 16, 18

Coray v. Southern Pacific, 335 U.S. 520, 93 L.Ed. 208

SRE cove vevuns sna vacncicvisesdompuserateseacivelsionsnaest 8

Day v. Gulley S.Ct. of Ohio (1963) 191 N.E.2d 732

Sa pbususwebechsurcasenninl eu enacmatantidanandyeands cnpeneenkees 17

DeLima v. Trinidad Corporation, 302 F.2d 585 (1962

SIGE irate hetessivcdelaubabtcdaleddateduacetchinnsrses 9, 10

Dutton v. Southern Pacific Transportation Company,

316 S.W.2d 782 (Tex.S.Ct., 1978) ......0c0ccee0 9, 14

Ely v. Reading Company, 424 F.2d 758 (1970, 3rd

ee se dikededinesgieydacusddcusnavexddeaksasacuyssaceebes 9, 14

Funseth v. Great Northern Railway, 399 F.2d 918

SRE dy anecadagbepcdeusscnrecsmeccantnces serkendcennkis 9, 10

Hack v. State Farm Mutual, S.Ct. of Wis. (1967) 154

POR cA NO ci nikueedciscaucisterd,dheeenstustonudienineuss 17

Hausrath v. New York Central Railroad Company, 401

Pee Ae Cs UIE AD da cadeceserccvdenssscacesas 9, 10

lannacito v. Denver & Rio Grande Western Railroad,

380 F.2d 1019 (1967, 10th Cir.) ...............4.. 10, 14

Idzojic v. Pennsylvania Railroad Company, 431 F.2d

PE ARETE UD fo chsasscieisiesapdeesvinvinseceacaa 9

Lucas v. State Farm Mutual (1962) 17 Wis. 2d 568,

117 N.W. 2d 660, cert. den. 373 U.S. 922, 10

ROME Grn vcicd choc en vicbontbnrirnnnch stn xenistllseeesieds

Page

Maples v. Bryce, S.Ct. of Okla. (1967) 429 P.2d 741

Lesddiodas<adenutapersarasesas ss dpahassveniaiabslwacadenoecauas i7

Morrison v. New York Central, 361 F.2d 319 (1966,

MUNI = 5 fut oeeeccns ii ncnschciulens bessnenebucontartadeen 14

Ostreng v. Lowery, S.Ct. of Wis. (1968) 155 N.W. 2d

PP Lda sivhensdsdcasletisoressacetuadusdsagiaspaconobauncios 18

Page v. St. Louis Southwestern Railway, 312 F.2d 84

SID scncneis Caildavavawiceusavouuenetecnecces 9

Parker v. Atchison, Topeka, & Santa Fe Ry Co., 263

SENNA WOE CEDMEED : dnccdutcacersseusesevcduscsonanant 9

Rogers v. Missouri Pacific Railway Company, 352 U.S.

UU, 1 L.BG.20 SIS (1987) .......0.ceeeess 8,9, 12, 14

Southern Pacific Co. v. Guthrie, 186 F.2d 926 (1951,

IE Sata Cindidis date niiddaninsonkeusindscickonssataasane 15

Tyree v. New York Central Railroad Co., 361 F.2d 319

SN MEAD sc cinccrescsnncocknscdesauendatacascacs 10, 14

Waller v. Southern Pacific, 66 Cal.2d 201, 57 Cal.Rptr.

SAT sabdcisikaiuiasesinasanaanensovisévesigustentied 9

Statutes

United States Code, Title 28, Sec. 1254(1) ............. l

United States Code, Title 45, Sec. 51 ............ 2,9, 14

Textbooks and Treatises

18 American Law Reports 3d, p. 10 ..................084 16

California Book of Approved Jury Instructions, Instr.

RESULT in vkenissGiberkadedendenjasvesenasaiansapedeaosies 6

California Book of Approved Jury Instructions, Instr.

PEE SNOUT cnakccubsvapeessadssaparacbeviabieoerans 7

Devitt & Blackmar, Federal Jury Practice and Instruc-

oes, 56 EG. (IST TF) Bee. DAS vvcvcevsccecces a, Ay On

Mathes, William, ‘‘Jury Instructions and Forms for Fed-

eral Civil Cases’’ 28 FRD 497 .............. ‘addeaniane 11

ae

IN THE

Supreme Court of the United States

October Term, 1983

SOUTHERN PACIFIC TRANSPORTATION COMPANY,

Petitioner,

vs.

Jimmy L. NORMAN,

Respondent.

Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit.

OPINIONS BELOW.

The memorandum opinion of Circuit Judges Alarcon,

Poole, and Boochever of the United States Court of Appeals

for the Ninth Circuit was filed on November 24, 1982, and

is not yet reported. The Order for Stay of Mandate pending

the filing of a petition for writ of certiorari in the clerk’s

office of the Supreme Court of the United States on or before

January 12, 1983 was filed on December 20, 1982. The

opinion and order are appended hereto as Appendix A.

JURISDICTION.

The unreported memorandum opinion of the Ninth Circuit

was filed on November 24, 1982. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

sete

STATUTES INVOLVED.

Section 51 of Title 45, United States Code, reads as

follows:

‘*Every common carrier by railroad while engaging in

commerce between any of the several States or Ter-

ritories, or between any of the States or Territories, or

between the District of Columbia and any of the States

or Territories and any foreign nation or nations, shall

be liable in damages to any person suffering injury

while he is employed by such carrier in such commerce,

or, in case of the death of such employee, to his or her

personal representative, for the benefit of the surviving

widow or husband and children of such employee; and,

if none, then of such employee’s parents; and, if none,

then of the next of kin dependent upon such employee,

for such injury or death resulting in whole or in part

from the negligence of any of the officers, agents, or

employees of such carrier, or by reason of any defect

or insufficiency, due to its negligence, in its cars, en-

gines, appliances, machinery, track, roadbed, works,

boats, wharves, or other equipment.

‘‘Any employee of a carrier, any part of whose duties

as such employee shall be the furtherance interstate or

foreign commerce; or shall, in any way directly or

closely and substantially, affect such commerce as

above set forth shall, for the purposes of this chapter,

be considered as being employed by such carrier in

such commerce and shall be considered as entitied to

the benefits of this chapter.’’

STATEMENT OF THE CASE.

This action under the FELA arises from the injury to

plaintiff Jimmy L. Norman while at work on May 11, 1978,

while employed by defendant as a student foreman in its

Maintenance of Way Department. He was working that day

under the immediate supervision of section foreman R.J.

oo, ee

Parker at a derailment site near Ontario, California. Parker

and plaintiff were assigned to go to another location ap-

proximately one-quarter mile distant, where the two of them

were to raise and level the rails. They were instructed to

travel to the new area on board a self-propelled tamping

machine. Plaintiff and his foreman loaded a shovel and other

tools on the tamper. Plaintiff stood next to the operator's

cab holding on to a steel handhold while the tamper was

moved to the new work area. Parker dismounted first, after

the tamper came to a stop. As plaintiff began to dismount,

he turned, tripped, lost his balance and fell to the ground,

landing in a sitting position. Parker and plaintiff then looked

and saw a shovel handle, which apparently had shifted dur-

ing the brief transit, lying partially across the gate opening

on the tamper deck.

At the time of impact, plaintiff felt a shock but no great

pain. His back felt ‘‘tight’’ when he arrived home. He went

to a chiropractor that same same night and had his back

manipulated. The next day he went to his family doctor,

Leslie Wyatt, M.D. who examined him and arranged for

him to have the use of a traction device at home and for

outpatient therapy at Doctor’s Hospital. After a few weeks,

plaintiff switched to the care of a Dr. Acord, who continued

his therapy, prescribed an exercise program, and arranged

to have him admitted in Memorial Hospital on July 17, 1978

where he stayed seven (7) days receiving physical therapy.

On August 30, 1978, plaintiff returned to work with Dr.

Acord’s approval and performed light work in the office

only until September 15, 1978, when Dr. Acord ordered

him off the job again. Dr. Acord then recommended that

plaintiff enroll in a spinal back program at Memorial Hos-

pital which would involve him being an inpatient for perhaps

six (6) months. Plaintiff refused when he learned the pro-

gram would require him to see a psychiatrist. An argument

saci tcets

between Dr. Acord and plaintiff over the psychiatrist issue

followed and plaintiff switched to the care of a Dr. Olivett.

This doctor prescribed continued physical therapy, first as

an outpatient, and finally commencing October 9, 1978 for

one week.

With approval of Dr. Olivett, he again returned to work

on October 30, 1978 and worked on and off until May 7,

1979. Since May 7, 1979, he worked as a field supervisor

without day-to-day physical problems but with flare-ups

now and then until time of trial.

During trial, plaintiff would get a low backache walking

from the parking lot to the courthouse which would go away

after he sat down for awhile. His condition had not changed

during the six months preceding trial. He felt more pain and

stiffness upon arising during cold weather than in hot

weather. Plaintiff stated that on occasion he had a feeling

of numbness and tingling on the outside of his left leg and

foot.

Dr. Charles E. Wexler, a radiologist and an expert in

thermography, had a technician perform a thermogram ex-

amination of plaintiff on November 2, 1979. A thermogram

is a ‘heat picture’’ which reads the infrared radiations em-

anating from the subject. Dr. Wexler interpreted plaintiff's

thermogram as showing irritation of the Sth lumbar nerve

on his left side. The thermogram does not indicate why the

nerve root is irritated but simply that it és irritated. Dr.

Wexler testified that the possible causes of irritation include

muscular dimentis spasm, a tumor pressing on the nerve

root, and infection around the nerve root, all of which Dr.

Wexler considers unlikely; and a herniated lumbar disc

pressing on the nerve root, or scarring of the nerve root,

which he considers more likely. Dr. Wexler (urther testified

that although not an orthopedist, he thinks that either con-

dition could be caused by a fall such as that suffered by

a a

plaintiff. He did not testify as to any prognosis for Mr.

Norman.

No other doctor testified as to plaintiff's medical

condition or prognosis.

The trial court gave an instruction, numbered for iden-

tification as No. 41, requested by plaintiff, which defined

causation in the following terms:

‘For purposes of this action, injury or damage is said

to be caused or contributed to by an act or failure to

act when it appears from a preponderance of the evi-

dence in the case that the act or omission played any

part, n~ matter how small, in bringing about or actually

causing the injury or damage. So if you should find

from the evidence in the case that any negligence of

the defendant contributed in any way toward any injury

or damage suffered by the plaintiff, you may find that

such injury or damage was caused by the defendant's

act or omission. (emphasis added)

‘Stated another way, an act or omission is the cause

of injury or damage if the injury or damage would not

have happened but for the act or omission, even though

the act or omission combined with other causes."

Devitt & Blackmar, Federal Jury Practice and Instruc-

tions, 3d Ed. (1977), Section 94.13.

Defendant timely objected to the giving of this instruction

both in its written Objections .» Plaintiff's Requested In-

structions filed August 8, 1980, and in the oral discussion

of proposed instructions in chambers on August 15, 1980

during trial,

Defendant requested that the trial court instruct the jury

on the subject of proximate causation as follows:

‘*An injury is proximately caused by an act or omission

whenever it appears that the act or omission played

any part whatever in actually bringing about or causing

oe

the injury. So if you find from the evidence that any

negligence on the part of defendant SOUTHERN PA-

CIFIC TRANSPORTATION COMPANY or plaintiff

contributed in any way or manner toward any injury

suffered by plaintiff, you will find that injury was prox-

imately caused by such act or omission.”

This instruction was identified as No. 42 in discussions

between counsel and the trial court in chambers. It is a

modification of Instruction No. 11.14 from California Book

of Approved Jury Instructions with the objectionable words

““no matter how small’’ deleted and the word ‘‘whatever’’

substituted therefor. This instruction was rejected by the

trial court.

Defendant also requested the following instruction on the

subject of proximate causation:

**An injury is proximately caused by an act or omission

whenever it appears that the act or omission contributed

in whole or in part, or played any part, in actually

bringing about or causing the injury. So if you find

from the evidence that any negligence on the part of

defendant, SOUTHERN PACIFIC TRANSPORTA-

TION COMPANY, or plaintiff contributed in any way

or manner toward any injury suffered by plaintiff, you

will find that injury was proximately caused by such

act or omission’’.

This instruction was identified as No. 43 in discussions

between counsel and the trial court in chambers. It was

rejected by the trial court. This instruction was also modified

from Instruction No. 11.14 from California Book of Ap-

proved Jury Instructions by substituting the statutory phrase

‘in whole or in part’’ for the objectionable phrase ‘‘no

matter how small’’.

ss

Defendant requested an instruction which was identified

in discussions between counsel and the court as No. 36

which, as modified in those discussions, read as follows:

‘*It was the continuing duty of the plaintiff to exercise

ordinary care for his own safety. If he failed in such

duty he himself was negligent. If his negligence was

the sole proximate cause of his injury, then he may not

recover.’’ (Defendant's Requested Jury Instructions,

B.A.J.1. 11.18, modified.)

This final proposed instruction on the subject of proximate

causation was rejected by the trial court.

The jury verdict awarded plaintiff total damages of

$150,000. There were three items of possible damage sub-

mitted to the jury:

1. Past wage loss, in an amount claimed by plaintiff's

counsel in final argument to be $11,321.00.

2. Past pain and suffering, in an amount claimed by

plaintiff's counsel in final argument to be $29,750.

3. Future pain and suffering, in an amount claimed by

plaintiff's counsel to be $211,984.

The jury verdict also assessed fifty percent of the com-

parative negligence to plaintiff, thereby reducing the amount

of judgment to $75,000, plus interest and costs.

ARGUMENT.

The decision below should be reviewed because it erro-

neously interprets both the Federal Employers Liability Act

and this Court's decision in Rogers v. Missouri Pacyie

Railway Company, 352 U.S, 500, 1 L.Bd.2d 515 (1957),

The decision of the Court of Appeals decides two important

questions of federal law, which should be, but have not

been settled by this Court, and which are likely to recur,

These two issues are what is the proper content of the

causation instructions in an FELA case, and whether a jury

in an FELA case may award damages for future pain and

suffering in the complete absence of testimony that future

pain and suffering will exist,

Further, there exists a conflict on these two issues among

the decisions of the various courts of Appeals,

Point I

This Court has not spoken authoritatively on the proper

content and wording of causation instructions in

jury trials under the FELA,

It is clear that the common law doctrine of proximate

causation was modified by the adaption of the FELA, Coray

v, Southern Pacific, 335 U.S, 520, 93 L.Ed, 208 (1949),

Rogers v, Missouri Pacific, supra, Virtually every case

since 1957 involving causation under the FELA cites Rogers

for authority, Defendant contends that the decision in Rogers

has been misinterpreted by many of the subsequent decisions

of the courts of Appeals, including the decision of the Ninth

Circuit herein,

In Rogers the Court granted certiorari to determine if the

court below had invaded the jury's function, and eventually

held that the Supreme Court of Missouri had erred in holding

as a matter of law that the evidence did not support the jury

verdict for the plaintiff railroad employee, The court did not

ae

consider nor comment upon instructions in FELA cases, a

fact subsequently noted by several Court of Appeals deci-

sions, Bertrand v. Southern Pacific, 282 F.2d 569 (1960,

9th Cir,), Funseth v, Great Northern Railway, 399 F.2d

918 (1968, 9th Cir.), Ely v. Reading Company, 424 F.2d

758 (1970, 3rd Cir,), /dzojie v. Pennsylvania Railroad Com-

pany, 431 F.2d 1029 (1970, 3rd Cir,), Page v. St. Louis

Southwestern Railway, 312 F.2d 84 (1963, Sth Cir.),

A similarly impressive list of cases have held, to the

contrary, that the Rogers decision does require new and

modified causation instructions in FELA or Jones Act cases,

DeLima vy, Trinidad Corporation, 302 F.2d 585 (1962, 2d

Cir,), Hausrath v, New York Central Railroad Company,

401 F.2d 634 (1968, 6th Cir,), Parker v. Atchison, Topeka,

& Santa Fe Ry, Co,, 263 Cal, App.2d 675 (1968), Waller

v, Southern Pacific, 66 Cal.2d 201, 57 Cal. Rptr, 353

(1967). Dutton v, Southern Pacific Transportation

Company, 576 §.W.2d 782 (Tex.S.Ct., 1978),

This Court is the only court which can settle the contro-

versy about the meaning of the Rogers decision authorita-

tively, The issue of proper wording of causation instructions

recurs frequently, in every FELA trial in fact, and should

be finally resolved by the court,

Point II

The principle of proximate causation should be included

and defined in the instructions to the jury in an

FELA case,

Although the common law doctrine of proximate caus-

ation was modified by the adoption of the FELA, the doc-

trine was not eliminated, It remains proper to instruct the

jury on the meaning of proximate causation in connection

with the use of the phrase ‘in whole or in part’’ from 45

U.S.C, 51 which modifies the common law doctrine of

ei

proximate causation in FELA cases, Funseth v. Great

Northern Railway Company, supra. lannacito v. Denver

& Rio Grande Western Railroad, 380 F.2d 1019 (1967,

10th Cir), Tyree v. New York Central Railroad Co., 361

F.2d 319 (1967, 6th Cir,), In conflict are cases holding it

is error to give a common law proximate cause instruction,

Hausrath v, New York Central, supra, Almandares vy.

Atchison, Topeka, & S. Fe Railway, 426 F.2d 1095 (1970,

Sth Cir,), DeLima v, Trinidad Corp., supra.

This conflict can only be resolved by this court,

In this case, Defendant's Instruction No, 43 on the subject

of causation, contained a definition of proximate causation

couched in the ‘in whole or in part’’ terminology of the

statute, Its rejection by the trial court constituted reversible

error, but the opinion of the Ninth Circuit blandly states:

“The jury instructions correctly stated the law regard-

ing the standard of causation applicable in actions under

the FELA, See Rogers v. Missouri Pacific Railway,

332 U.S, 500 (1957); Devitt & Blackmar, Federal Jury

Practice and Instructions, Instruction 94.13 (3rd ed.

1977)"', Moreover, the causation instruction did not

confuse the jury by failing to refer to ‘proximate’’

causation, In light of the instruction cautioning the jury

that all the instructions were to be taken together, the

jury could be expected to understand that the causation

instruction given also included the principle of proxi-

mate causation in other instructions, "’

The Ninth Circuit opinion here explicitly concedes that the

principle of proximate causation should have been included

in the causation instruction given (as in the instruction tend-

ered by defendant, but rejected), The opinion then avers

that the jury could read into the causation instruction the

principle of proximate causation as found in other instruc:

tions, This reasoning is faulty because nowhere in the entire

| a

charge to the jury was proximate causation defined or

explained.

The jury charge contained the word ‘‘proximate’’ or

‘*proximately’’ some fourteen times. The definition of

‘*proximate’’ would normally come in the causation instruc-

tion, such as No. 42 or No. 43 tendered by Southern Pacific.

The causation instruction given, Devitt & Blackmar, No.

94.13, has omitted the definition of proximate causation.

Thus, the jury in the instant case received fourteen confusing

references to proximate causation and no explanation at all

of the term *‘proximate causation’’ in the causation instruc-

tion given. Defendant contends this is error requiring a new

trial with proper instructions.

Point Ill

Inclusion of the phrase ‘‘no matter how small’’ in an

FELA causation instruction is prejudicial error.

The causation instruction given included the argumen-

tative phrase ‘‘no matter how small’’ as found in Devitt

& Blackmar, 94.13. Instruction No. 41 is taken from the

third edition of Devitt & Blackmar, supra. It is the direct

descendant of an instruction originally published by U.S.

District Court Judge William Mathes, in his article *‘Jury

Instructions and Forms for Federal Civil Cases’’ published

at 28 FRD 497. In the original version, the objectionable

phrase ‘‘no matter how small’’ does appear but the use of

the modifying phrase ‘‘proximately caused’’ also appears,

as follows:

‘*An injury is proximately caused by an act or omission

whenever it appears that the act or omission played

any part, no matter how small, in actually bringing

about or causing the injury. So if you find from the

evidence that uny negligence on the part of the defen-

dant contributed in any way or manner toward any

—

injury suffered by plaintiff, you may find that injury

was proximately caused by defendant’s act or omis-

sion.”’

The same instruction in the same words was included in the

book Federal Jury Practice and Instructions jointly au-

thored by Judge Mathes and Judge Devitt in 1965 By the

time the second edition came out in 1970, Judge Mathes

had died and was replaced as a co-author by Professor Black-

mar. The subject instruction is included in that edition as

Instruction No. 89.13 and reads the same as Instruction

94.13 in the third edition, tendered and given in this case.

When Judge Mathes drafted the original version of this

instruction, he apparently based the phrase *‘no matter how

small’’ on the two words ‘‘however small’’ found in the

dictum portion of the Rogers case, when the court com-

mented that ‘‘for practical purposes the inquiry in these

cases today rarely presents more than the single question

whether negligence of the employer played any part, how-

ever small, in the injury or death which is the subject of the

suit.’’ 352 U.S. 500, 507, 1 L.Ed. 2d 493, 500.

The argumentative aspect of ‘‘no matter how small’’

should be fairly obvious. Reference to the argument made

by Edwin C. Martin, counsel for plaintiff, in the instant

case is illustrative.

Mr. Martin employed the phrase ‘‘no matter how small”’

five times in his argument to the jury. Practically his first

words to the jury in argument were these:

‘*One important principle is on the subject of causation.

You will hear the court instruct you on this and it says

that if the negligence of the railroad played any part,

no matter how small, any negligence on their part,

caused any damage to the plaintiff, then they are re-

sponsible for it.

—, a

‘*Now the exact wording will come from the judge and

you will hear the judge say that and hopefully you will

remember what I have said.

‘‘Now, that is protective, broad and sweeping. A grain

of sand in any negligence, no matter how small, renders

the railroad liable.’’ (emphasis added)

This is mysterious logic and must have been confusing to

the jury. Mr. Martin then went on to argue:

‘‘Now, let’s review some of the evidence and try to

fit the facts upon against this law saying that any neg-

ligence, no matter how small, and any negligence,

comparative negligence, which I will be talking about

in a minute to you, where you are going to balance

negligence that you will find on the part of the plaintiff

and any you find on the part of the defendant.’’

(emphasis added)

Here again, counsel for plaintiff is emphasizing that the

important thing for the jury to remember about this law is

**no matter how small’’.

Later in argument, counsel for plaintiff talks about

comparative fault:

‘‘And this is a separate question from that first legal

instruction I was talking to you about on the subject

of causation. Remember the first one says that the

railroad — anyway, no matter how small, was negli-

gent -— at negligence, played any part in causing any

damage, they are responsible. Okay.’’ (emphasis

added)

The final reference to ‘tno matter how small’’ in plaintiff's

argurnent was in these words:

“You will remember that we talked about causation.

Any case no matter how small, any negligence, any

damage, and you will hear that.’’ (emphasis added)

a te

The message that counsel for plaintiff is apparently preach-

ing in this part of his argument is that railroad plus ‘‘no

matter how small’’ equals railroad is liable. This chain of

logic is certainly simple enough for a jury to understand

which probably explains Mr. Martin’s repeated use of the

magic phrase. Defendant submits that while simple, it is

also improper and misleading and should not be condoned

by this Court. Neither should the trial courts sponsor the

use of the argumentative polemic ‘‘no matter how small’’

in place of the perfectly adequate phrase ‘‘in whole or in

part’’ provided in 45 U.S.C. 51.

The use of ‘‘no matter how small’’ subverts the FELA

and places the trial court’s thumb squarely on the plaintiff's

side of the scales of justice, and virtually guarantees a ver-

dict against the railroad. The decision in Rogers does not

so tip the scales of justice.

The statutory phrase ‘‘in whole or in part’’ is much to

be preferred to the argumentative ‘‘no matter how small’.

The use of ‘‘in whole or in part’’ has been endorsed by

several Courts of Appeals, including the Third Circuit, Ely

v. Reading Company, supra, the Sixth Circuit, Morrison

v. New York Central, 361 F.2d 319 (1966, 6th Cir.). Tyree

v. New York Central, supra, and the Tenth Circuit, /an-

nacito v. Denver & Rio Grande, supra.

Refusal to give the ‘‘no matter how small’’ instruction

was held on appeal to be without error in /annacito and

Tyree. In a Texas case, the trial judge excised ‘‘no matter

how small’’ from the tendered instruction and the Texas

Supreme Court made no criticism. Dutton v. Southern

Pacific, supra.

Railroad defendants are entitled to have the crucial subject

of causation explained to the jury without the use of the

emotional and argumentative phrase ‘‘no matter how

small.”’

ee,

Point IV

A jury in an FELA case may not award damages for

future pain and suffering in the absence of com-

petent testimony that future pain and suffering will

occur.

While this Court has not expressly ruled on the question,

all eleven circuits are today committed to the doctrine that

there should be some appellate supervision over the size of

jury verdicts. 6A Moore’s Federal Practice $59.08(6).

There is a line of cases holding that where there is in-

sufficient evidence to support the verdict as to damages,

new trial should be granted. The Ninth Circuit, sitting in

bank, declared upon review of an FELA case:

‘“‘We put to one side those cases in which it can be

demonstrated that the verdict includes amounts allowed

for items of claimed damage of which no evidence

whatever was produced. Such total want of evidence

upon a portion of the case would give rise to a question

of law in the same manner in which a question of law

is presented when, upon motion for a directed verdict,

there appears an insufficiency of evidence as to the

whole case.’’ Southern Pacific Co. v. Guthrie, 186

F.2d 926, 931 (1951, 9th Cir.)

This is such a case.

The only medical evidence received at trial was the tes-

timony of thermographer Dr. Charles Wexler, whose tes-

timony, interpreted in the light most favorable to plaintiff,

is that on November 21, 1979, plaintiff, by thermogram

examination, was shown to have irritation of the 5th lumbar

nerve on his left side. Counsel for plaintiff conceded in final

argument that this is the only medical evidence in the case.

There is no evidence of diagnosis or prognosis by any other

medical doctor. Dr. Wexler’s opinion that on one day in

1979 plaintiff had an irritated nerve root cannot be stretched

into a prognosis of future pain and suffering.

Not only did no medical witness testify as to the prob-

ability of future pain and suffering on the part of plaintiff

Jimmy L. Norman, but there was no such testimony from

any witness. Plaintiff himself testified as to intermittant pain

and suffering from the date of injury up to the time of trial,

but of course could not and did not testify as to future pain

and suffering.

As a general rule, damages for future pain and suffering

cannot be recovered in a personal injury action if there is

no evidence that pain and suffering will continue in the

future. There is an excellent annotation on this subject at

18 A.L.R. 3d 10. One line of cases requires that there must

be medical testimony that the pain and suffering will con-

tinue in the future. Campbell v. American Foreign SS Corp.,

116 F.2d 926 (1941, 2nd Cir.), cert. den. 313 U.S. 573,

85 L.Ed. 1530. In that case plaintiff received a jury verdict

under the Jones Act, including an award for future ‘‘cure

and maintenance’’. The trial court reduced the amount of

this award but left intact three years’ ‘‘cure and mainte-

nance’’ in the future. The Second Circuit reversed, stating

that the evidence was insufficient to sustain either the jury

verdict or the reduced amount directed by the court. The

opinion notes that:

‘No physician predicted that the plaintiff would be

incapacitated for three years beyond the date of trial.”’

Page 928

and

‘*The medical testimony is too indefinite to justify a

verdict based on an award of maintenance at $2.50 for

a term of three years.’’ Page 929.

In a 1962 case, the Supreme Court of Wisconsin held

that the unsupported subjective statements of the injured

sidall Ieoe

party were not sufficient to allow recovery for future pain

and suffering and that competent objective medical findings

were necessary. Lucas v. State Farm Mutual (1962) 17 Wis.

2d 568, 117 N.W. 2d 660, cert. den. 373 U.S. 922, 10

L.Ed. 2d 423. In some cases where the injuries are obvious

to jury inspection, medical evidence is not required, but

competent medical testimony usually is required to justify

damages for future pain and suffering when the injuries are

such that they cannot be objectively determined or that a

jury of laymen cannot know with reasonable certainty that

there will be future pain and suffering. Hack v. State Farm

Mutual, S.Ct. of Wis. (1967) 154 N.W. 2d 320.

In 1967, the Supreme Court of Oklahoma held that a

fractured jaw, loss of teeth, possible concussion and back

injuries were not the kind of injuries which would allow the

award for future pain and suffering damages without sup-

porting medical testimony. Maples v. Bryce, S.Ct. of Okla.

(1967) 429 P.2d 741. Where the symptoms of the claimed

injury are subjective in nature at the time of trial, there must

be expert medical testimony as to future pain and suffering

to support damages for future pain and suffering, Day v.

Gulley, S.Ct. of Ohio (1963) 191 N.E. 2d 732. The plaintiff

in the Day case had neck, wrist, hand and low back com-

plaints but medical witnesses could not make a prediction

as to the duration of low back pain in the future.

Another low back case in Wisconsin involved claimed

permanent back injuries. There was evidence that the plain-

tiff had suffered a painful and disabling injury to his back.

The plaintiff had testified his back was painful and interfered

with his work and sleep. The court observed ‘‘there was,

however, no medical evidence that the back condition was

permanent or was likely to cause future pain and suffering”’

and held that an award for future pain and suffering when

the symptoms are subjective in nature must be supported

by the opinion of a medical expert which is based upon a

Se

medical certainty or probability. Ostreng v. Lowery, S.Ct.

of Wis. (1968) 155 N.W. 2d 558.

Thus, we see that at least one circuit, and the Supreme

Courts of several states have held there can be no recovery

for future pain and suffering without competent medical

testimony to support the award. The circuit decision, Camp-

bell v. American Foreign S.S. Corp., supra, was in a Jones

Act case, (which adopts the FELA by reference) thus

affording precedent in an FELA case.

The jury award in the instant matter awarded a substantial

sum for future pain and suffering. In final argument, only

three items of damage were argued by counsel for plaintiff

and submitted to the jury. They were past wage loss, past

pain and suffering, and future pain and suffering. The

amounts requested by counsel for plaintiff in final argument

were:

Future pain and suffering $211,984 83.7%

Past pain and suffering 29,750 11.8%

Past wage loss 11,321 4.5%

$253,055 100.0%

The jury verdict was in the total sum of $150,000 for all

three items of damages combined.

Note that future pain and suffering accounts for 83.7%

of the plaintiff's request. If the jury alloted the same per-

centage share of its award to future pain and suffering, the

award would be $125,550. Another way to interpret the jury

award would be to assume that the jury gave the exact

amounts requested for past pain and suffering and past wage

loss, which would leave $108,929 out of the $150,000 total

award attributable to future pain and suffering. We do not

know exactly what theory the jury followed but by any

possible theory they must have awarded a very substantial

amount of money for future pain and suffering since it is

a

extremely unlikely that they would have awarded an amount

far in excess of that requested by plaintiff for past wage loss

and past pain and suffering.

The Ninth Circuit opinion disposes of this argument by

stating:

‘*Finally, the district court did not abuse its discretion

in denying Southern Pacific’s motion for a new trial.

The damage award of $150,000 was not excessive.

There were sufficient facts presented to justify the

court’s instruction for future pain and suffering and no

objection was made to that instruction.”’

This response misses the point of our argument altogether.

Defendant did not appeal because it claims the instruction

should not have been given. Since counsel for defendant

clearly did not object to the instruction at time of trial,

defendant has not contended that the instruction should not

have been given. Our contention is that since there is no

evidence whatever in the record that plaintiff will suffer any

future pain and suffering, the jury award for damages for

future pain and suffering cannot stand.

The Ninth Circuit cannot create evidence where there is

none, simply by stating that it does exist. This issue was

incorrectly addressed by the court below.

The issue of future pain and suffering will recur frequently

in FELA cases. The railroad employers and employees need

a definitive statement by this court to govern the conduct

of future FELA cases. This court has not spoken on this

issue in the past, so far as petitioner can determine.

Petitioner suggests that the correct standard should be,

as stated in the cases cited above, that competent medical

testimony that future pain and suffering will occur is a

necessary foundation for an award of future pain and suf-

fering in an FELA case.

That foundation clearly is missing in the instant case.

px

CONCLUSIO? .,

This court should grant certiorari and the judgment below

should be reversed.

Respectfully submitted,

JOSEPH H. CUMMINS,

JOHN J. CORRIGAN,

Attorney for Petitioner,

Southern Pacific Transportation

Company.