# Petition — Southern Pacific Transportation Co. v. Norman

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983
- **Citation:** 460 U.S. 1023

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0284%3A1. Public record. Not legal advice.