Petition for Writ of Certiorari — Kansas City Southern Railway Co. v. Giddens

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og Suoreme Court, U.S.

001286FEB 9 2001

No.

IN THE

Supreme Court of the Anited States

THE KANSAS CITY SOUTHERN RAILWAY COMPANY,

Petitioner,

GARRY V. GIDDENS,

Respondent.

On Petition for a Writ of Certiorari

to the Supreme Court of Missouri

PETITION FOR WRIT OF CERTIORARI

HARLAN D. BURKHEAD*

TODD E. HILTON

LATHROP & GAGE L.C.

2345 Grand Boulevard, Suite 2500

Kansas City, Missouri 64108

(816) 292-2000

*Counsel of Record Counsel for Petitioner

eh CR A TOT ANORN TRON TS IDM CON MERION CREE GRAMS COLNE ye

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 -— WASHINGTON, D. C. 20001

Fanaa

LE OT PN RARE HN A APA

QUESTIONS PRESENTED

1. Whether a jury, which had heard a FELA plaintiff's

evidence that he had earnings loss damages of over

$1,000,000, should have been prevented from hearing the

railroad’s evidence that (a) the plaintiff was already receiving

disability benefits of over $18,000 annually, 76.6% of which

had been funded by the railroad, and (b) the plaintiff was de-

motivated to mitigate his earnings loss by finding gainful

employment because such earnings would decrease his

disability benefits.

Alternatively, if the jury was properly precluded by law

from hearing relevant evidence of the true extent of the

plaintiff's net earnings loss, whether the railroad should have

been granted an offset against the jury’s $1,520,000 verdict in

the amount of the present value of such benefits, so that the

plaintiff not receive a windfall double recovery.

2. Whether a state court may promulgate a jury

instruction and verdict form for FELA pure comparative

negligence cases against a railroad materially different from

the jury instruction and verdict form promulgated for pure

comparative negligence actions against all other citizens of

the state.

Correspondingly, whether a state court’s FELA verdict

form, materially different from the verdict form promulgated

for all other pure comparative negligence cases, which

precludes meaningful review of whether a verdict in an FELA

case is against the weight of the evidence denies due process

and equal protection of the laws to railroads.

(i)

LIST OF PARTIES AND

CORPORATE DISCLOSURE STATEMENT

The parties to this proceeding are the petitioner-defendant,

The Kansas City Southern Railway Company and _ the

respondent-plaintiff, Garry Vance Giddens.

The Kansas City Southern Railway Company is a wholly-

owned subsidiary of Kansas City Southern Lines, Inc., which

is a wholly-owned subsidiary of Kansas City Southern

Industries, Inc., which is publicly held.

TABLE OF CONTENTS

QUESTIONS PRESENTED...........cccsccssessecsesscssconssesseoes

LIST OF PARTIES AND CORPORATE DIS-

CLOSURE STATEMENT..........cccccccssscessessesessssenseces

CPT vik vieccnicnecesseseteesecessasees-... et

Peete clssccisseseseresecessceese....

CONSTITUTIONAL PROVISIONS & STATUTE

cS NS

EL Eee Pe REE CBN ono cccscccccccsccscesesees

1. Legal precedent and case facts material to

exclusion of respondent’s receipt of Railroad

Retirement Act (“RRA”) benefits.......................

Ne een ccccscsecssseces

B. The law qualifying a railroad employee to

apply for RRA benefits.............cccccccccecesseees

C. Facts as to how Giddens accrued his 20

D. Evidence received and excluded on

Giddens’ earnings loss damages.................

2. Legal precedent and procedural facts material

to consideration of whether the State of

Missouri’s requiring different forms of verdicts

in pure comparative negligence cases (a)

against railroads and (b) against any other

citizen defendant frustrates railroads’ rights to

meaningful review of jury verdicts and

constitutes denial of equal protection of the

eR still ristetatenssssccsnesecenccesccesocececesecesececeene

A. The different forms of instructions and

SII UIAINIiiilsttistastsassccseececsececeseseseccececeess

B. Facts material to consideration of the

issue Of Giddens’ fault ............c.ccccccececeseceeee

(iii)

TABLE OF CONTENTS—Continued

REASONS FOR GRANTING THE PETITION ........... 8

I. The Writ Should Be Allowed In Order To

Resolve A Split Among The Circuits And State

Supreme Courts And To Allow For The First

Time Ever Before This Court Full Briefing,

Argument And Consideration Of (A) Whether

RRA Benefits Are From A “Collateral Source”’,

And (B) Whether There Should Be A Per Se

Rule Excluding The Receipt Of Such Evidence

Or Whether Such Ruling Should Be Left To

Trial Court Discretion As -Are Other

Evidentiary Matters Under Rule 403, Federal

Rules Of Evidence And State Court Rules Of

OVER nsncsiinnignnnceneipesgccasinitiidanieuitiamiiaiinmiiniciiiinsisiiais 8

B. Whether RRA _ benefits should be

admissible in evidence in a FELA trial for

purposes other than as an offset to

damages should be expressly left to trial

court discretion and not be a matter of per

B08 CHD GRRE sicstnnssnisianiinsinlisinpibtiialinaiaaiti 12

C. There is conflict among the Circuits and

state courts of highest resort as to the

important federal question presented by

BEGINS <esicannsivcnsntnedannicgebguengiotidiiadaseciaiimmmtion 15

D. Giddens manipulated the system to accrue

his 20 years of service for RRA

CED witkerntinntsnimnieninaimaeoaminin 16

TABLE OF CONTENTS—Continued

As an alternative to admission of RRA

evidence at trial before the jury, at the

very least, KCS, and all railroads, should

be allowed an offset against a plaintiff's

damages determined by the jury in the

amount of the present value of the RRA

benefits so that the plaintiff not receive a

windfall double recovery ..............sseccessessees

COOMRIIB citi nsesiistintiniscciinbcnremactosmnecnssnercsecse

II. The Missouri Courts’ Requirement That FELA

Litigants Utilize A Form Of Verdict Materially

Different From The Form Of Verdict Utilized

In All Other Similar Comparative Negligence

Actions Violates The Supremacy, Equal

Protection And Due Process Clauses Of The

United States Constitution And Conflicts With

The Decisions Of This Court .............ssssessseeeees

A. States may not discriminate against FELA

cesens

The Missouri courts’ requirement that

FELA litigants utilize a form of verdict

that precludes meaningful appellate

review of the jury verdict violates the

equal protection and due process clauses

of the United States Constitution and

conflicts with the decisions of this Court...

1. The Missouri instructional scheme

ViOlateS GUE PTOCESS............sseeeeerreeeeees

2. The Missouri instructional scheme

violates equal protectiOn.............e2++

Page

TABLE OF CONTENTS—Continued

Page

3. The Missouri state instructional

scheme is in_ conflict with |

instructions of the Eighth Circuit |

federal scheme and all other

jurisdictions’ SCHEMES .............scseeees 26

CATIA BOAIEN cososncinsseebietesntinhanbshihacsdbiomsdpannatanaamtenlia 28

APPENDIX

_ Opinion of Missouri Supreme Court dated October :

ET Ma sanensitonsnnnennnpientcsnpsiniitiiestiiapiiniiiidciuig pdatauiaciaiaaiass la :

DEOE0e FS FUNG a coenseisssensininrhacesieadigianicitintamnnanie 25a

Memorandum Order Denying Rehearing.............0.0+:. 34a :

Missouri Approved Instructions (MAI) : ;

NAB OE issih hd crslleeseleenanane anes 35a

DIE DRI ccissniincnsdacecsepsacsannstlectiemaia ide 36a

DEAE FF AU scicseccresciiacsssenntaitnaiaaiainniadiaadammaamaaaa 37a

BEAL FY AEF sscsenistsssciinninatspipeanaaniaiaminmiaicmadel 38a

Eichel v. New York Central Railroad Co.............000+0+ 39a

vii

TABLE OF AUTHORITIES

CASES: Page

Bennett v. Owens-Corning Fiberglas Corp., 896

S.W.2d 464, 467 (Mo. 1995) ......ccecseeeseeeseeenenees 27

City of Chesterfield v. Director of Revenue, 811

S.W.2d 375, 378 (MO. 1991) .....ccccsceereeeeeereennees 27

Dice v. Akron, Canton & Youngstown R.R. Co.,

342 U.S. 359, 365, 367-68 (1952) .......cccecseereees 19

EEOC v. Wyoming Retirement Systems, 771 F.2d

1425, 1431-32 (10th Cir. 1985) ........ccceeeeeerees 18

Eichel v. New York Central Railroad, 375 U.S.

253 (1963) ..cccoccccsrcsccrcccsccccrcccccsecssccsecsorcsssssooosces passim

Giddens v. Kansas City Southern, 29 S.W. 34

8D. ccicscocsecossceseceosscnscnssncscnscssenbosessessnsesocscocssecsnes 15,24

Green v. Denver & Rio Grande Western

Railroad, 59 F.3d 1029 (10th Cir. 1995) ........... 16, 18

Gustafson v. Benda, 661 S.W.2d 11 (Mo. banc

ROTDD cicccecctncscsscscectsccessscessensensqcseescnssssesscsccesseveces 6

Honda Motor Co., Ltd. v. Oberg, 512 U.S. 415,

114 S.Ct. 2331, 2338-40 (1994)........ccccceeeeeeenees 24

Janke v. Duluth & Northwestern R.R. Co., 489

N.W.2d 545 (Minn. App. 1992).........:ccseeeeeees 26

Jones v. Consolidated Rail Corp., 800 F.2d 590

(Gth Cir. 1986).........cccccccscscccsesseseerceeseecsesssoesees 13

' Kansas City Southern Ry. Co. v. Jones, 241 U.S.

1B 1 (1D1G) ...cccceccccccscccrcceecorscccsccceccccccesscessccssoosecs 22

McGrath v. Consolidated Rail Corporation, 136

F.3d 838 (1st Cir. 1998).............cccerreerssereseees 15, 16

McKnett v. St. Louis & San Francisco RR. Co.,

292 U.S. 230, 234 (1934)......ccsecrrceersenreserensnes 19

Merando v. The Atchison, Topeka and Santa Fe

Ry. Co., 232 Kan. 404, 656 P.2d 154 (1982)... 26

Missouri ex rel. Southern Ry. Co. v. Mayfield,

340 U.S. 1, 4 (1950)........ccccccsccrscerserseercesscsssenees 19

Viii

TABLE OF AUTHORITIES—Continued

Page

Missouri Pacific R.R. Co. v. Brown, 862 S.W.2d |

636 (Tex. App. [Tyler] 1993)............cccccseeseseeee 26 |

Mondou v. New York & New Haven RR. Co.,

prc BS Of) ee 21

New York v. U. S., 505 U.S. 144, 148 (1992) ........ 21

O’Ryan v. CSX Transportation, Inc., 255 Ill.

App.3d 214, 626 N.E.2d 374, 193 Ill. Dec. 341

(FED nrranccsnneniniihiniinshstiinctnaparnigtensnmmnitinemsenene 26

Pacific Mutual Ins. Co. v. Haslip, 499 U.S. 1, 20,

ee tk | ek. | Seen 24

Propeller Monticello v. Mollison, 15 U.S. (17

BSOW.) ISZ, 1S CHE, GE (TESS) ccccccccccncscsscecesonese 10

Roth v. Atchison, Topeka and Santa Fe Ry. Co.,

912 S.W.2d 583, 591 (Mo. App. [W.D.] 1995). 26, 27

Sheey v. Southern Pacific Transportation Co.,

631 F.2d 649 (9th Cir. 1980) ...............csccsesceseees 16

Sinclair v. Long Island R.R., 985 F.2d 74 (2d Cir.

SID cnnninesccnesisiiiitibitiinstintiaissiiintnnsbiindisieniiatinitetsse 26

St. Louis Southwestern Railway Co. v. Dickerson,

te 8 | 7). Serene 27

St. Louis Southwestern Ry. Co. v. Grider, 321

Ark. 84, 900 S.W.2d 530 (1995)..........cccssseeeeeee 26

Topping v. CSX Transportation, Inc., 1 F.3d 260

ie Ce Piece sciesepeitncerintieptioincscnscnsciiinistitsiinsptintion 26

Trejo v. Denver & Rio Grande Western Railroad

Co., 568 F.2d 181 (10th Cir. 1977)............ceeeee 13

Wilson v. Burlington Northern R.R. Co., 804

26 Gar Ca Ce eiceitcitserctintne 26

CONSTITUTIONAL PROVISIONS

AND STATUTES:

Se CEs OS OD tictinictninneaieiieniiiiitiinnnia l

PEE CR |, ee 4

BS UBL. § BE cspennresessctnsatnentnsansnsicetmentnntoninensentniition 2,6

TABLE OF AUTHORITIES—Continued

Page

i ad 6, 24, 25

inal 2,23

8 Bos» — — & 4. St PR EEENeenenee 3

of 2 dS OF, ec enrnnenetes 23

Ee We Oe alc cctceanecttecanais 2

MISCELLANEOUS: |

sR eee en shone et 6, 7, 21, 22

aa 6, 7, 20

LIE ASTRO C LER Mee, 6, 7, 20

ER ee onnsinsstpntcctenenenscennnnnnscnonninccensemnsnininnys 6, 7,21, 24

ee a ere

a a ao

IN THE

Supreme Court of the United States

No.

—_——

THE KANSAS CITY SOUTHERN RAILWAY COMPANY,

Petitioner,

Vv.

GARRY V. GIDDENS,

Respondent.

On Petition for a V/rit of Certiorari

to the Supreme Court of Missouri

PETITION FOR WRIT OF CERTIORARI

The Kansas City Southern Railway Company hereby

petitions this Court for a writ of certiorari to review the

judgment of the Supreme Court of Missouri.

OPINION BELOW

The opinion of the Supreme Court of Missouri is reported

at 29 S.W.3d 813 (Appendix to Petition for Certiorari)

(“App.”) (la-24a). The Memorandum Order of the Supreme

Court of Missouri denying rehearing is noted in the Opinion

and attached (App. 34a).

JURISDICTION

The judgment of the Supreme Court of Missouri was

entered on October 17, 2000. The Motion for Rehearing was

denied on November 14, 2000. The jurisdiction of this Court

is invoked under 28 U.S.C §1257(a).

CONSTITUTIONAL PROVISIONS &

STATUTE INVOLVED

This action was commenced under and is governed by the

Federal Employers’ Liability Act (“FELA’’), 45 U.S.C. § 51,

et seq. Section 51 reads in pertinent part: '

U.S.

US.

Every common carrier by railroad while engaged in

commerce between any of the several States or

Territories . . . shall be liable in damages to any person

suffering injury while he is employed 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... .

Constitutional provisions involved are:

CONST. art. VI, cl. 2

This Constitution, and the Laws of the United States

which shall be made in Pursuance thereof; and all

Treaties made, or which shall be made, under the

Authority of the United States, shall be the supreme Law

of the Land; and the Judges in every State shall be bound

thereby, any Thing in the Constitution or Laws of any

State to the Contrary notwithstanding.

CONST. amend. V

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in the

land or naval forces, or in the Militia, when in actual

service in time of War or public danger; nor shall any

person be subject for the same offence to be twice put in

jeopardy of life or limb; nor shall be compelled in any

criminal case to be a witness against himself; nor be

deprived of life, liberty, or property, without due process

' The full text of 45 U.S.C. §51 is set forth at App. 43a.

of law; nor shall private property be taken for public use,

without just compensation.

U.S. CONST. amend. XIV, § 1

All persons born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge

the privileges and immunities of citizens of the United

States; nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal

protection of the laws.

STATEMENT OF THE CASE

Petitioner, The Kansas City Southern Railway Company

(“KCS”), prays review of an opinion affirming a

$1,520,000.00 jury verdict and judgment in favor of

respondent, Garry Giddens, an employee of petitioner.

Giddens was a foreman in the track maintenance-of-way

department who sustained permanent injury to his left hand

when a cable suspended from a crane broke causing the

suspended load, a section of ties with track attached, to drop a

few inches and pin Giddens’ left hand between the track-tie

assembly and a tie on which he had rested his hand.

1. Legal precedent and case facts material to exclusion

of respondent’s receipt of Railroad Retirement Act

(“RRA”) benefits.

A. Legal Precedent

In 1963 this Court handed down its opinion in Eichel v.

New York Central Railroad, 375 U.S. 253 (1963) (App. 39a).

Eichel has been construed to preclude evidence in a FELA

case that the plaintiff is receiving RRA benefits and has been

the source of misconstruction, vexation, confusion and

millions of dollars of double recovery benefits against

railroads.

This important federal question regarding the admissibility

or exclusion of RRA disability benefits in the trial of a FELA

case first arose in the pre-trial motion in limine filed by

Giddens, in which he sought an order excluding from

evidence “any mention whatsoever . . . of any and all

references concerning . . . receipt or entitlement to receive

benefits under the Disability Act of the Railroad Retirement

Administration ....” KCS agreed that due to the constraint

of the Eichel opinion as interpreted by subsequent opinions,

petitioner would not make mention nor attempt to offer

evidence unless respondent “opened the door” to the receipt

of such evidence.

B. The law qualifying a railroad employee to apply

for RRA benefits

Under 45 U.S.C. § 23la(a)(1)(iv), Giddens, in order to

qualify for an occupational disability annuity under the RRA

had to establish to the Railroad Retirement Board’s

satisfaction both that he was disabled from work in his

regular occupation and that he had completed 20 years of

service with the railroad.

C. Facts as to how Giddens accrued his 20 years of

Service

At the time of his injury in May, 1989, Giddens had

accrued 16 years of service, 4 years short of that required by

§ 23la(a)(1)(iv). He convalesced from his injury for

13 months until June, 1990, during which time KCS

continued to pay his wages under a wage continuation

program and contributed to Tier II of the Railroad Retirement

System, out of which occupational disability benefits are

paid. He then returned to work at his same job as a

maintenance-of-way foreman in June, 1990 and worked

through December, 1990, at which time he laid off for

additional treatment, again receiving wage continuation with

employer contributions to Railroad Retirement. He returned

again to his regular job in May, 1991 and worked through

December, 1991. He worked no further for the railroad

thereafter. However, KCS continued his wage continuation

benefits and Railroad Retirement contributions through

October 1992.

By October, 1992, Giddens had also accrued vacation time

and personal leave days which he was able to allocate to

separate future months, and when those benefits were paid to

him, contributions were made to Railroad Retirement, thus

allowing him to attain the requisite 240 months of accredited

service. In October 1992, realizing that he had accrued

sufficient vacation and personal leave days which he could

take day-at-a-time in separate months to obtain the additional

required months of accredited service, Giddens advised that

he was no longer physically able to do the job which he had

done in the past for the railroad. He filed suit against the

respondent in November 1992. Thereafter he applied for and

was awarded RRA benefits.

D. Evidence received and excluded on Giddens

earnings loss damages

The jury heard evidence from two physicians that Giddens

had work restrictions with respect to his injured hand, with

resultant 18% body as a whole disability. It also heard from

the plaintiff's vocational expert that Giddens was “well-

motivated” to return to work. Finally, the jury heard from the

plaintiff's economist that Giddens, age 44 at time of trial in

1998, had sustained a $204,600 past wage loss and would

sustain a future wage loss projected as high as $812,000. The

jury was precluded by the court’s rulings from hearing that

Giddens was receiving over $18,000 per year in RRA

benefits, that the fund out of which these benefits were paid

was funded 76.6% by KCS and that Giddens would have a

dollar-for-dollar reduction of his RRA benefits for each dollar

earnings which he had in excess of $400 per month.

2. Legal precedent and procedural facts material to

consideration of whether the State of Missouri’s

requiring different forms of verdicts in pure

comparative negligence cases (a) against railroads

and (b) against any other citizen defendant

frustrates railroads’ rights to meaningful review of

jury verdicts and constitutes denial of equal

protection of the law.

A. The different forms of instructions and verdicts

The Federal Employers’ Liability Act, 45 U.S.C. § 51, et

seq., is a system of “pure” comparative negligence or fault, —

i.e. contributory negligence of the plaintiff diminishes, but

does not bar, recovery and the plaintiff is entitled to recover

that amount of his total damages which corresponds to the

employer’s percentage of negligence. 45 U.S.C. § 53.

In Gustafson v. Benda, 661 S.W.2d 11 (Mo. banc 1983),

the Supreme Court of Missouri abolished contributory

negligence as an absolute defense in Missouri and adopted

pure comparative negligence under the Uniform Comparative

Fault Act.

Notwithstanding the substantive parallel of the FELA to

the Missouri system of comparative fault for non-FELA

cases, the Supreme Court of Missouri has approved different

forms of instructions for the two different causes of actions.

To compare:

Other Comparative

FELA Cases Fault Cases

Measure of

damages instruction MAI 8.02 (App. 35a) MAI 37.03

(App. 37a)

Form of verdict MAI 36.01 (App. 36a) MAI 37.07

(App. 38a)

An important issue of federal law and, more

fundamentally, constitutional guarantees of due process and

equal protection are raised by the disparate jury instruction

treatment which Missouri courts accord railroad and non-

railroad litigants.

The issue of how the jury was instructed first arose during

the instruction conference after the evidence but before

instruction, argument and submission. Petitioner urged the

giving of MAI 37.03 for measure of damages (App. 37a),

which the court refused but gave instead MAI 8.02 (App.

35a) the measure of damage instruction specifically crafted

for FELA cases. Similarly, petitioner’s proffered form of

verdict under MAI 37.07 (App. 38a), the one used for all non-

FELA cases, was refused in favor of MAI 36.01 (App. 36a),

again an instruction used in Missouri only in application to

railroads as a special “class.” When the court made these

decisions, petitioner excepted and raised the constitutional

objection.”

~ Comparison of App. 36a to App. 38a reveals the distinction

between the two instructional schemes. The scheme for

railroads does not require the jury to state separately its

findings as to percentages of fault and total damages. The

scheme applicable to all other citizen defendants in the State

of Missouri does require separate itemization of percentages

of fault and damages.

B. Facts material to consideration of the issue of

Giddens’ fault

Giddens was the foreman in charge of the work site. There

was no higher supervisor present before or at the time of the

accident. It was his responsibility to determine the methods

of work and to instruct other employees what to do and where

to do it. He was giving hand signals to the crane operator

? “Defendant objects to the form. We will concede that this adheres to

proper MAI format. We object because we believe MAI un-

constitutionally discriminates against railroads by instructing in -FELA

cases differently than in other similar comparative fault cases.” (App.

28a).

who was lifting the load which fell on his hand. He placed

his hand on the tie beneath the suspended load

notwithstanding a specific railroad safety rule.”

REASONS FOR GRANTING THE PETITION

I. The writ should be allowed in order to resolve a

split among the circuits and state supreme courts

and to allow for the first time ever before this Court

full briefing, argument and consideration of (a)

whether RRA benefits are from a “collateral

source”, and (b) whether there should be a per se

rule excluding the receipt of such evidence or

whether such ruling should be left to trial court

discretion as are other evidentiary matters under

Rule 403, Federal Rules of Evidence and state court

rules of evidence.

A. RRA benefits are not collateral source

Notwithstanding a plethora of state and federal court

decisions citing Eichel, the fact is that this federal question of

admissibility into evidence of RRA benefits, which is a

matter of vast economic impact to- this petitioner and the

railroad industry and ultimately society as a whole, was never

fully briefed, argued and considered in the Eichel decision, an

opinion which was rendered in a far different time and

context.

Eichel accepted the lack of dispute between the parties to

that case that RRA disability benefits were a “collateral

source” and then proceeded, via dicta, to say that RRA

benefits are indeed a “collateral source.” The Eichel court

then considered only the railroad’s argument that under the

* KCS Safety Rule 724 states:

When rail is raised, or tie is being nipped up for spiking or tamping,

avoid placing hands or feet in a position where injury might

occur. ...

facts of that case, the evidence of disability payments should

be admissible as bearing on the issue of malingering. The

Eichel opinion, which was a review of a trial court’s exercise

of discretion excluding RRA benefits under the facts of that

case, held that the evidence of the benefits was properly

excluded under the facts of that case.

Eichel merely affirmed a District Court’s exercise of

discretion in excluding RRA disability benefits under the

facts of that FELA case. The Federal District Judge excluded

the railroad’s offer of evidence that the plaintiff was receiving

$190 per month in RRA disability pension payments. The

jury returned a verdict of $51,000.00.

The Court of Appeals for the Second Circuit reversed, 319

F.2d 12, holding that it was prejudicial error to exclude the

RRA evidence. This Court then reversed the Court of

Appeals, effectively reinstituting the judgment and

discretionary rulings of the trial judge.

Eichel is now cited as black letter law that RRA benefits

are of a collateral source. Eichel is no such thing. The

pertinent language is:

Respondent (the railroad) does not dispute that it would

be highly improper for the disability pension payments

to be considered in mitigation of the damages suffered

by petitioner.

Thus it has been recognized that:

The Railroad Retirement Act is substantially a Social

Security Act for employees of common carriers.

* * * The benefits received under such a system of

social legislation are not directly attributable to the

contributions of the employer, so they cannot be

considered in mitigation of the damages caused by the

employer. 375 U.S. 253, 254 (emphasis and paren-

thetical material added).

The opinion continues:

Respondent argues that the evidence of the disability

payments although concededly inadmissible to offset or

mitigate damages, is admissible as bearing on the extent

and duration of the disability suffered by petitioner. /d.

at 254 (emphasis added).

Thus, on the threshold issue of whether RRA disability

benefits are from a collateral source, that issue was not

disputed, but was instead conceded, by New York Central.

The collateral source “issue” was not briefed and argued in

Eichel because it was not an issue due to the railroad’s

concession. However, this petitioner does dispute and does

not concede that RRA disability pension payments are from a

collateral source. RRA benefits are paid from Tier II of the

RRA, 76.6% of which is “directly attributable to the

contributions of the employer.” RRA benefits are not

collateral source.‘

The “collateral source rule,” the wisdom of which is now

significantly under challenge on many fronts, traces back to

Propeller Monticello v. Mollison, 15 U.S. (17 How.) 152, 15

L.Ed. 68 (1854) in which this Court first ruled that a

defendant could not mitigate its exposure by the fact that a

plaintiff had received satisfaction of damages from its own

insurer. This opinion evolved into what is now known as the

“collateral source rule,” which has now been defined:

{I]f an injured person receives compensation for his

injuries from a source wholly independent of the tort-

feasor, the payment should not be deducted from the

*The Tier II fund is established by contributions from the employer

and the employee. An amount equal to 21% of the employee’s earnings,

to a designated maximum, are contributed. The employer contributes

16.1% and the employee 4.9%. The employer’s 16.1% is therefore 76.6%

of the total 21% of earnings contribution.

damages which he otherwise would collect from the tort-

feasor.

Black’s Law Dictionary 262 (6th Ed. 1990) (emphasis

added).

RRA benefits are not “wholly independent of the tort-

feasor.” To the contrary, they are 76.6% dependent on the

tort-feasor. RRA benefits are therefore not within the classic

definition of collateral source.

RRA benefits also do not fall within the spirit and purpose

underlying the collateral source rule. In 1854, when this

Court first recognized the rule, it was considered that

notwithstanding that the rule could provide a windfall to

plaintiffs, public policy nonetheless supported the rule in

order not to discourage the purchase of insurance by

individuals who would lose the benefit of their premium

dollars should the insurance benefit be offset against

damages. This policy is not present in the Railroad

Retirement Act.

Under the Railroad Retirement Act, there is no policy

objective of encouraging the purchase of insurance.

Contributions to the RRA are not a matter of individual

choice. They are not optional. They are mandated by federal

law. Thus, the public policy reason underlying the collateral

source rule is not present with respect to RRA benefits as it

may be with respect to insurance policies purchased as a

matter of individual choice. Applying the collateral source

rule to RRA benefits provides double recovery windfalls to

plaintiffs, without protecting any legitimate interests of those

plaintiffs or furthering society's public policy interests.

Notwithstanding that the collateral source rule was adopted

at a time of far different economic circumstances and that it is

today the subject of increasing scrutiny and legislative

abrogation °, the important fact here is that the collateral

source language in Eichel was attributable to stipulation and

concession by the railroad in that case. The language is dicta.

However, Eiche! is now cited time and time again every week

in FELA trials in the courtrooms of America as establishing

black letter law that RRA benefits are of a collateral source.

B. Whether RRA benefits should be admissible in

evidence in a FELA trial for purposes other than

as an offset to damages should be expressly left

to trial court discretion and not be a matter of

per se rule exclusion

The Eichel court, having inferred by dicta that RRA

benefits were from a collateral source and should therefore

not be considered in mitigation of damages attributable to the

employer, proceeded to consider the trial judge’s

discretionary exclusion of the benefits from evidence as “a

motive for (petitioner’s) not continuing work, and for his

deciding not to continue going back to work after the last

accident.” /d. at 254. The Court of Appeals had concluded

that the disputed evidence should have been admitted because

its probative value outweighed the risk of prejudice. The

Court of Appeals had therefore reversed the trial court’s

* Goldsmith, A Summary of the Collateral Source Rule: The Effects of

Tort Reform and Impact on Multistate Litigation, 53 J.AirL.&Com. 799

(Spring, 1988); McDowell, The Collateral Source Rule-The American

Medical Association and Tort Reform, 24 Washburn L.J. 205 (1985);

O'Connell, A Proposal to Abolish Contributory and Comparative Fault,

With Compensatory Savings by Also Abolishing the Collateral Source

Rule, Law Forum, Vol. 1979, No. 3; Unreason in the Law of Damages:

The Collateral Source Rule, 77 Harv.L.Rev. 741 (1963-64); Cf. S.

Sugarman, Doing Away With Personal Injury Law, 79 and 174-76 (1989)

(collateral source rule should be applied where the funds are derived from

private savings and other forms of family income and wealth, but should

not be applied where the losses are covered by social security, worker's

compensation, employment related health care plans, private pension

plans and group disability insurance).

exercise of discretion. The Supreme Court disapproved of the

Court of Appeals’ substituting its discretion for that of the

trial court.

Under FELA, an injured employee clearly has a duty to

mitigate damages. Trejo v. Denver & Rio Grande Western

Railroad Co., 568 F.2d 181 (10th Cir. 1977); Jones v.

Consolidated Rail Corp., 800 F.2d 590 (6th Cir. 1986).

However, under the RRA, an Act which was adopted at a

different time than the FELA and for different purposes and

which is not in any sense fault-based, a plaintiff like Giddens

sustains a dollar-for-dollar decrease in RRA benefits for each

dollar in excess of $400 per month earned in mitigation of

damages. Thus, the FELA law requiring mitigation of

damages is at cross-purposes with the RRA earnings

limitation law. The RRA creates a disincentive to a FELA

plaintiff to mitigate his damages by finding gainful

employment.

When the jury is left ignorant of this fact and law and is

unaware that a person like Giddens is already receiving over

$18,000 annually in benefits primarily funded by the same

railroad against which he is asking the jury to return a multi-

million dollar verdict, the only natural juror assumption is

that surely Giddens cannot work, because, if he could, he

would not leave a job paying him $35,000 a year. However,

what the jury did not know is that Giddens, while not

working, was receiving in RRA benefits of over $18,000

(over half of what he earned while he was working for the

railroad) and that he cannot earn over $400 per month without

having those benefits decrease. Therefore, the jury’s

assumption that if Giddens could work, he would work,

which is the only reasonable conclusion which the jury can

reach from the evidence (or exclusion thereof), is not valid in

fact.

The 1963 Eichel decision was prior to the 1972 adoption of

the Federal Rules of Evidence, Rule 403 of which provides:

Although relevant, evidence may be excluded if its

probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay,

waste of time, or needless presentation of cumulative

evidence.

Here, the exclusion of the evidence is what results in unfair

prejudice, confusion of the issues, and frequently almost

outright perjury in the courtrooms of America in FELA trials.

In 1963, when Eichel was decided, there was not the

proliferation of “experts” who compound the nature and

extent of an injured plaintiff's damages to astronomical levels

which exists today. This case is a good example.

At this trial, the evidence on damages started with the

plaintiff's treating physician, followed by another physician

who performed a functional capacity examination. The

upshot of these two physicians’ opinions was that Giddens

had 18% body as a whole disability for his injury to his left,

non-dominant hand. The plaintiff then produced a vocational

“expert” who testified that Giddens’ vocational prospects

were bleak indeed, notwithstanding the fact, as the expert

repeated on three occasions, that Giddens was a man who was

“well-motivated” to return to work.° The economist then

followed.

° This vocational expert was Dr. Bernstein whose testimony the trial

court has found opened the door to receipt of RRA evidence after a prior

trial. Although not relevant to the issues here presented, this case has

been tried to three juries. None heard evidence of RRA benefits. The first

jury returned a verdict of $400,000. The trial court granted a new trial

based upon its failure to give a mitigation of damages instruction, and no

appeal was taken. In the second trial, the jury returned a verdict of

$1,400,000. The trial court again granted a new trial, this time because of

an improper inflammatory closing argument by plaintiff's counsel and

also because the Bernstein testimony about how “well-motivated” Mr.

Giddens was to find gainful employment opened the door to evidence of

It is this type of mischief to which we refer when we say —

the exclusion of RRA benefit evidence leads to “almost

outright perjury.” Giddens, by virtue of his receipt of RRA

benefits and threat of loss of some of those benefits if he did

retum to work, was “de-motivated” to return to work.

Giddens knew it. The expert knew it. The trial judge and

counsel knew it. The appellate courts knew it. The only

persons who did not know it were the persons who most

needed to know, the persons deciding what damages Giddens

should receive, the jury.

It cannot be said that receipt of such evidence, which is

clearly relevant and probative, is outweighed, let alone

“substantially” outweighed, by the danger of unfair prejudice

and confusion of the issues or misleading to the jury. To the

contrary, the evil of the jury’s being ignorant of the facts

“substantially outweighs” any chance that the jury might

“misuse” the facts. The jury should receive such evidence. It

is not collateral source. It would not result in confusion or be

misleading. It would contribute to, not endanger, fairness.

C. There is conflict among the Circuits and state

courts of highest resort as to the important

federal question presented by Eichel

Trial courts and courts of appeals with alarming regularity

misconstrue and inconsistently apply the holding in Eichel

and misapply it to cases under the FELA. A clear conflict

between the circuits exist. For example, the First Circuit, in

McGrath v. Consolidated Rail Corporation, 136 F.3d 838

(Ist Cir. 1998), partially adopted the approach which we urge,

the RRA benefits and the fact that Giddens was de-motivated under the

RRA due to its earnings limitation. Although the new trial was affirmed

on the basis of the improper closing argument, the Missouri Court of

Appeals held that Giddens had not opened the door to the receipt of the

RRA benefits and the RRA’s earnings limitations. Giddens v. Kansas

City Southern Ry. Co., 937 S.W.2d 300, 303 (Mo. App. 1996).

i.e. in affirming a defense verdict and the District Court’s

exercise of discretion in allowing the receipt of RRA benefits

under Rule 403, the court affirmed allowance of the evidence

to show McGrati’s lack of motivation to return io work. The

court properly divined the true scope of the Eichel decision

on this issue.. McGrath is thus in conflict with the opinion

on which certiorari is sought here. However, even the

McGrath court, like almost every other court in America, also

falls into the easy trap created by Eichel of reciting that the

RRA benefits are from a collateral source.

In stark contrast to McGrath, however, is Green v. Denver

& Rio Grande Western Railroad, 59 F.3d 1029 (10th Cir.

1995), where the Tenth Circuit clearly construes Eichel as

establishing a bright-line rule excluding disability benefits as

both collateral source and to establish malingering.*

The Ninth Circuit in Sheey v. Southern Pacific

Transportation Co., 631 F.2d 649 (9th Cir. 1980), lines up

with the Tenth Circuit in Green in apparently concluding that

Eichel establishes a per se, black letter, bright-line rule

against admissibility of RRA benefits. It concludes that “a

” “However we do not believe that the Eichel court established a

bright-line rule barring the admission of collateral source evidence on the

issue of malingering. The Supreme Court simply determined that the

District Court abused its discretion because the prejudicial impact of the

evidence outweighed its probative value. Here, we come to the opposite

conclusion.” 136 F.3d 838, 841.

*“If there is confusion in our cases it is unimportant, because we

believe Supreme Court precedent controls this issue. As plaintiff asserts,

Eichel v. New York Central RR, . . . compels the conclusion that the

collateral source rule prohibits admission of RRA disability benefits in a

FELA case. The narrow issue in Eichel was whether evidence of RRA

disability payments was admissible to show malingering by the plaintiff.

The Supreme Court stated that ‘The likelihood of misuse by the jury

clearly outweighs the value of this evidence’ and noted that it had

‘recently had occasion to be reminded that evidence of collateral benefits

is readily subject to misuse by a jury.”” /d. at 1032.

District Court’s Rule 403 discretion is greatly limited in

FELA cases” under Eichel because the Supreme Court there

balanced the probative value of such evidence against any

unfair prejudice and determined that in such cases, “the value

is greatly outweighed by possible prejudice.” Id. at 652. The

rub is, of course, again, that Eichel merely upheld trial court

discretion under the facts of the Eichel case. Eichel did not

establish a reasoned rule that the evidence is per se excluded

in all cases.

D. Giddens manipulated the system to accrue his 20

years of service for RRA eligibility

As is stated in Point C. of the Statement of the Case,

Giddens had 16 years of credited service at the time of his

accident. Following the accident, he convalesced for a total

of 28 months in three stints interrupted by his return to his

same job and work for 15 months in two separate stints.

During the periods of convalescence, KCS paid him wage

continuation and made contributions on his behalf to Tier II.

At the time Giddens stated he no longer could do the job, he

also knew that he had sufficient accrued vacation pay and

sick leave days that he could allocate those days to future

months of service and thus obtain the necessary 240 months

to qualify for his RRA disability pension. His “inability to

work” coinciding with his accruing eligibility for the pension

is not pure coincidence. It was design. Giddens is not the

only rail worker to conclude that it is more difficult to work

after he has accrued his RRA disability eligibility than it was

before accruing such eligibility. Once rail workers have their

RRA eligibility “in the bank,” and receive legal advice that

they can sue their employer under the FELA without a jury’s

hearing about such benefits, the incentive to retire and sue is

strong.

E. As an alternative to admission of RRA evidence

at trial before the jury, at the very least, KCS,

and all railroads, should be allowed an offset

against a plaintiff s damages determined by the

jury in the amount of the present value of the

RRA benefits so that the plaintiff not receive a

windfall double recovery

The jury heard that Giddens had sustained a potential total

wage loss of over $1,000,000. It did not hear that Giddens

was receiving over $18,000 per year in RRA benefits from a

fund principally contributed to by KCS. ~ That the jury’s

verdict of $1,520,000 provided Giddens with a windfall

double-recovery is patent and unarguable.

Although evidence of RRA benefits should be heard by the

jury on other relevant issues such as an FELA’s plaintiff's

disincentive and de-motivation to find gainful employment

and thereby mitigate his damages, if it is concluded that such

evidence should not be heard by the jury, at the very least, a

railroad should be entitled to a credit in the amount of 76.6%

of past RRA benefits received and 76.6% of the present value

of future benefits. In this case, applying the same projections

and discount values utilized by the plaintiff's expert

economist, KCS should be entitled to an offset against this

double-recovery of $223,667.

An offset for such a benefit was allowed by the Tenth

Circuit when the employer was a non-railroad employer in

the case of EEOC v. Wyoming Retirement Systems, 771 F.2d

1425, 1431-32 (10th Cir. 1985). However, curiously and

inexplicably, the same Tenth Circuit did not provide that such

an offset should be allowed to a railroad in Green v. Denver

& Rio Grande Western Railroad Company, 59 F.3d 1029

(10th Cir. 1995).

F. Conclusion

The two page opinion of this Court in Eichel celebrates its

38th birthday this year. Much has changed in the intervening

38 years. The cost to this railroad, not only in this case, but

in literally hundreds of other FELA cases where employees

are receiving RRA benefits and to the railroad industry and,

ultimately, to society as a whole, is steep, multi-million

dollars annually. This unwarranted judicially-sanctioned

double-recovery windfall has lived too long a life.

The time has come for a full exposition of these issues,

which never took place in the oft-misconstrued and mis-cited

Eichel opinion.

II. The Missouri courts’ requirement that FELA

litigants utilize a form of verdict materially

different from the form of verdict utilized in all

other similar comparative negligence actions

violates the supremacy, equal protection and due

process clauses of the United States Constitution

and conflicts with the decisions of this Court.

A. States may not discriminate against FELA

actions

This Court has succinctly and simply summarized the

obligation of state courts entertaining FELA cases:

Nor may a State discriminate disadvantageously against

actions for negligence under the [Federal Employers’

Liability Act] as compared with local causes of action in

negligence. ... [A state satisfies its duty not to

discriminate disadvantageously against FELA actions

only when] all negligence suits in a State are treated in

the same way, by the same mode of disposing equitable,

non-jury, and common law jury issues ....

Dice v. Akron, Canton & Youngstown R.R. Co., 342 U.S.

359, 365, 367-68 (1952) (Frankfurter, J., concurring, in part,

and dissenting, in part) (citing Missouri ex rel. Southern Ry.

Co. v. Mayfield, 340 U.S. 1, 4 (1950); McKnett v. St. Louis &

San Francisco R.R. Co., 292 U.S. 230, 234 (1934) (emphasis

added). The Missouri Approved Instructions (“MAI”) for

FELA cases violates this most basic and fundamental

constitutional precept.

This case was submitted to the jury under FELA theories of

comparative fault. At trial, petitioner proffered, and the trial

court refused, instructions that adhered to the format required

by MAI for instructing a jury in a “typical” comparative fault

negligence case, i.e., a case involving every Missouri

defendant other than an FELA railroad-defendant. Instead,

the trial court gave, over petitioner’s constitutional objection,

the MAI instructions for FELA, which differ fundamentally

from the typical Missouri comparative fault jury instructions.

The divergence between the two schemes is easily

summarized. The MAI comparative fault instructions for all

“non-FELA” cases charge the jury to make two critical

determinations—({1) the parties’ respective percentages of

fault and (2) the plaintiff's total damages, if any fault is

assessed against the defendant. Both of these jury findings of

fact must be explicitly recorded on the verdict form. MAI

37.07.’ Thus, in Missouri “non-FELA” comparative fault

cases, the jury considers the evidence and makes and records

its findings of fact and the trial court thereafter performs the

legal and ministerial act of making the computation of

reducing total damages by the percentage of fault assessed to

a plaintiff.

The MAI scheme for instructing in FELA cases is

inexplicably and unjustiably different. Missouri juries are

charged in the required FELA damages instruction:

* The jury is further informed in the required damages instruction under

the “non-FELA” comparative fault format:

In determining the total amount of plaintiff's damages you must not

reduce such damages by any percentage of fault you may assess to

plaintiff. The judge will compute plaintiff's recovery by reducing

the amount you find as plaintiff's total damages by any percentage

of fault you assess to plaintiff. MAI 37.03.

If you find plaintiff contributorily negligent as submitted

in Instruction No., then your award must be

determined by diminishing total damages in proportion

to the amount of negligence attributable to plaintiff.

MAI 8.02. Correspondingly, the required verdict form for

FELA cases, MAI 36.01, allows for a recording only of a “net

damages” amount and does not permit the jury to record

either percentages of fault or total damages. '°

Missouri state courts have a well-established duty under

the United States Constitution to treat FELA cases “the same

way” they treat other similarly situated negligence actions.

By refusing petitioner’s tendered instructions—the form of

instructions and verdicts used by Missouri courts in all other

negligence actions involving comparative fault—the trial

court committed a constitutional error for which the only

remedy is a new trial.

During the early 1900’s, in response to state court

resistance to hearing FELA cases, this Court handed down a

_ series of decisions requiring that state courts treat FELA

negligence actions the same way other negligence suits

arising under state law are handled. To that end, the Court

struck down a variety of other state schemes which

discriminated against FELA actions. See, e.g., Mondou v.

New York & New Haven R.R. Co., 223 U.S. 1, 57-59 (1912);

see also New York v. U. S., 505 U.S. 144, 148 (1992).

Under the straightforward directions of this Court, state

courts are constitutionally obligated to treat FELA negligence

cases the same way other negligence cases are handled with

regard to “disposing [of] common law jury issues.” Missouri

state courts do not.

'° Demonstrating the inequity (inequality) of the present MAI scheme

for instructing on FELA cases is the fact that the form of verdict required

for FELA comparative fault cases is used in other Missouri cases only

when there is no issue of comparative fault. MAI 36.01.

Here, the respondent’s claims and petitioner’s defenses

were not treated the same as other similarly situated

negligence claims being prosecuted in the state courts of

Missouri. Missouri courts improperly discriminate against

FELA actions by requiring use of MAI 36.01 and thereby

violate the holding in Kansas City Southern Ry. Co. v. Jones,

241 U.S. 181 (1916), that a railroad in an FELA action “has

the Federal right to a fair opportunity to show in diminution

of damages any negligence attributable to the employee.” Id.

at 183 (emphasis added).

B. The Missouri courts’ requirement that FELA

litigants utilize a form of verdict that precludes

meaningful appellate review of the jury verdict

violates the equal protection and due process

clauses of the United States Constitution and

conflicts with the decisions of this Court

1. The Missouri’ instructional scheme

violates due process.

As a result of the disparate treatment afforded FELA action

by the Missouri Approved Instructions, the total amount of

plaintiff's damages and relative apportionment of fault of the

respective parties are not recorded on the verdict form. Apart

from being vague and confusing to lay jurors, these MAI

instructions and procedure violate federal substantive law.

As a result of MAI’s disparate treatment of FELA cases, it is

impossible for the parties or a reviewing court to determine

from the final jury verdict:

a) the gross amount of damages found by the

jury;

b) the jury’s relative apportionment of fault

between the plaintiff and the railroad; and

c) whether the procedure for FELA fault

calculation, mandated by federal substantive

law, was followed, or even whether a

mathematical mistake was made by the jury.

lmemeeemermmenenencnsiensiniainemeieaiiiiiiiiiiiiiitiiiiiiaiaaill

These differences between the two Missouri schemes for

instructing juries unconstitutionally discriminates against

FELA cases and deprives petitioner of meaningful appellate

review in violation of decisions of the United States Supreme

Court as well as in violation of the equal protection, due

process and supremacy clauses of the United States

Constitution. U.S. Const. art. VI, cl. 2; U.S. CoNsT. amend.

V, XIV.

For example, in this case, it is impossible to determine

whether the jury’s “net” verdict of $1,520,000.00 could have

been the result of (a) finding Giddens 0% at fault, with gross

damages of $1,520,000.00, or (b) finding Giddens 90% at

fault, with gross damages of $15,200,000.00. Either finding

would not withstand weight of the evidence scrutiny by an

informed reviewing court. 0% fault to Giddens would be

absurdly against the weight of the evidence on fault, as would

$15,200,000 on damages. However, here, as the Missouri

Supreme Court’s opinion itself shows, the courts in Missouri

are not informed.'!

Given Giddens’ status as the foreman on the job and his

conduct in placing his hand in a position of obvious peril, if -

the jury did not attribute substantial comparative negligence

to him, the verdict would have been against the weight of the

evidence on negligence. However, given the instructional

backdrop above set out, neither the trial court, in attempting

to discharge its duty to determine whether the verdict was

against the weight of the evidence nor the appellate courts, in

attempting to discharge their like duty, knew what percentage

of fault, if any at all, the jury attributed to Giddens. Also,

neither court knew what total damages the jury determined

for Giddens’ damages. The opinion of the Missouri Supreme

Court so establishes:

'' Under Rule 78.02, Missouri Rules of Civil Procedure, a court may

grant a new trial on the ground that a verdict is against the weight of the

evidence.

While the jury award of $1,520,000.00 based on this

evidence was generous, particularly if the jury found

Giddens to be contributorily at fault to a substantial

degree, it was not so grossly excessive . . . that it shocks

the conscience of the Court or causes this Court to

believe that the jury award was based on passion and

prejudice rather than on the evidence. Giddens v.

Kansas City Southern, 29 S.W. 3d 813, 822 (emphasis

added) (App. 14a).

It could be said that the language above indicates the court

assumed Giddens’ fault “to a substantial degree,” but then

concluded that the verdict was still merely “generous,” not

excessive. But the point is the reviewing court did not know

what the jury found.

Obviously, the Missouri Supreme Court did not know “if”

the jury found Giddens contributorily at fault io a “substantial

degree,” or, for that matter, to any degree. Thus, meaningful

judicial review was effectively thwarted and petitioner was

denied due process under the law. See, e.g., Honda Motor

Co., Ltd. v. Oberg, 512 U.S. 415, 426-29, 114 S.Ct. 2331,

2338-40 (1994); Pacific Mutual Ins. Co. v. Haslip, 499 U.S.

1, 20, 111 S.Ct. 1032, 1044 (1991) (both finding that due

process requires that jury damage awards be subject to

meaningful appellate scrutiny). Review of jury verdicts

under the FELA scheme to determine if a verdict is against

the weight of the evidence is thus blind.

2. The Missouri’ instructional scheme

violates equal protection.

The MAI Committee’s reasoning in support of its

discrimination against FELA is erroneous. The MAI

Committee assumes in its Comments that 45 U.S.C. § 53

requires the jury and not the judge to diminish damages.

MAI 8.02 [COMMITTEE COMMENT (1991 REVISION)]. The

cited statute, however, includes no such requirement, but

merely states:

[T]he fact that the employee may have been guilty of

contributory negligence shall not bar a recovery, but the

damages shall be diminished by the jury in proportion to

the amount of negligence attributable to such employee.

45 U.S.C. §53.

The opinion below gave short shrift to petitioner’s

constitutional arguments (App. 15-17a) by Stating that

counsel for the defendant did an inartful job of making a

record at the instruction conference and in briefing the case

before the Missouri Court of Appeals'? and that the

constitutional arguments were therefore “deemed

abandoned.” They were not abandoned. They were merely

disregarded. Treating one class of citizens, railroads,

differently from all other classes of citizens for no rational

reason and thereby depriving that singular class of citizens,

railroads, meaningful appellate review, is not within the

concept of equal protection of the law. We ask that this Court

apply equal protection as it was intended to be by the framers

of the Constitution.

Missouri courts pay slavish adherence to the rule which

they have adopted, Rule 70.02(b), Missouri Rules of Civil

Procedure, that approved instructions “shall be given to the

exclusion of any other instructions on the same subject,”

notwithstanding that the instruction and verdict form which

those same courts have approved violate constitutional

guarantees. Courts should protect the constitutional

guarantees of equal protection, not be the source of their

denial.

“The Missouri Supreme Court accepted discretionary transfer of the

case on its order, Rule 83.04, Missouri Rules of Civil Procedure.

However, it then entered its opinion without further briefing or argument.

3. The Missouri state instructional scheme is

in conflict with instructions of the Eighth

Circuit federal scheme and all other

jurisdictions’ schemes.

Further demonstrating the flaw of the MAI Committee’s

reasoning is that no other jurisdiction uses a “net damages”

approach, but instead all other federal and state jurisdictions

utilize the “total damages/percentages of fault” approach that

the MAI Committee asserts is improper. See, e.g., PATTERN

JURY INSTRUCTIONS [CIVIL] FOR THE EIGHTH CIRCUIT § 7.08

(1995); PATTERN JURY INSTRUCTIONS [CIVIL] FOR THE FIFTH

Circuir § 5.1 (1995); St. Louis Southwestern Ry. Co. v.

Grider, 321 Ark. 84, 900 S.W.2d 530 (1995); O’Ryan v. CSX

Transportation, Inc., 255 Ill. App.3d 214, 626 N.E.2d 374,

193 Ill. Dec. 341 (1993); Missouri Pacific R.R. Co. v. Brown,

862 S.W.2d 636 (Tex. App. [Tyler] 1993); Topping v. CSX

Transportation, Inc., 1 F.3d 260 (4th Cir. 1993); Sinclair v.

Long Island R.R., 985 F.2d 74 (2d Cir. 1993); Janke v. Duluth

& Northwestern R.R. Co., 489 N.W.2d 545 (Minn. App.

1992); PATTERN JURY INSTRUCTIONS [CIVIL] FOR THE

ELEVENTH CIRCUIT § 6.1 (1990); Wilson v. Burlington

Northern R.R. Co., 804 F.2d 607 (10th Cir. 1986); Merando

v. The Atchison, Topeka and Santa Fe Ry. Co., 232 Kan. 404,

656 P.2d 154 (1982).

In Roth v. Atchison, Topeka and Santa Fe Ry. Co., 912

S.W.2d 583, 591 (Mo. App. [W.D.] 1995), a Missouri Court

of Appeals refused to address this same constitutional

objection:

At the outset, we acknowledge strict adherence to MAI

forms and “Notes on Use” is required by our Supreme

Court and recall its admonition that “[i]f this court is to

make this system work, and preserve its integrity and

very existence, we must insist that mandatory directions

be followed and that the pattern instructions be used as

written.

Simply because the questioned instructions are “approved”

instructions, however, does not remedy or erase the

constitutional taint.'* City of Chesterfield v. Director of

Revenue, 811 S.W.2d 375, 378 (Mo. 1991) Bennett v. Owens-

Corning Fiberglas Corp., 896 S.W.2d 464, 467 (Mo. 1995).

This Court previously was confronted with similar stubborn-

as-a-Missouri-mule reliance on MAI and rejected such

reliance when federal substantive rights were involved. See

St. Louis Southwestern Railway Co. v. Dickerson, 470 U.S.

409, 411 (1985). As in Dickerson, the constitutional error

committed by the trial court cannot be justified by

“approved” instructions.

Both the Missouri Court of Appeals, in Roth, and the

Missouri Supreme Court here have been asked to address the

“merits” of the discriminatory and unconstitutional Missouri

instructional scheme. Both have declined. Missouri courts

are obviously loathe to address the “merits” of the

instructional scheme which they themselves have approved

because there is no “merit” to the scheme. It is indefensible.

'® Under the applicable state law, petitioner preserved its constitutional

attack on the Missouri Approved Instructions by timely offering

alternative instructions and by raising its constitutional objections orally at

the instruction conference and in writing at the earliest opportunity

“consistent with good pleading and orderly procedure {i.e., the new trial

motion].” City of Chesterfield v. Director of Revenue, 811 S.W.2d 375,

378 (Mo. 1991) (en banc). The Missouri Supreme Court has noted:

Before the [objected to] instructions were given to the jury, counsel

objected. ... A similar complaint was included in the motion for

new trial that the instructions [were unconstitutional]. This was

sufficient to inform the plaintiff and trial court of the basic flaws in

the instructions and to preserve the issue on appeal.

Bennett v. Owens-Corning Fiberglas Corp., 896 S.W.2d 464, 467 (Mo.

1995) (en banc).

‘ cA

: Ae

CONCLUSION

Two important federal (and constitutional) questions of

impact not only to this case, but to all railroad citizens trying

cases in the State of Missouri, under its unique instructional

scheme, and to all railroad citizens nationwide, under the

Eichel decision, are presented by this Petition. Full briefing

and exposition of the issues in Eichel and its progeny are

overdue. So is the indefensible State of Missouri

instructional scheme. The Court should grant the petition.

Respectfully submitted,

HARLAN D. BURKHEAD*

TODD E. HILTON

LATHROP & GAGE L.C.

2345 Grand Boulevard, Suite 2500

Kansas City, Missouri 64108

(816) 292-2000

*Counsel of Record Counsel for Petitioner

APPENDICES

APPENDIX A

SUPREME COURT OF MISSOURI,

EN BANC

No. SC 82602

GARRY V. GIDDENS,

Respondent,

Vv.

THE KANSAS CITY SOUTHERN RAILWAY COMPANY,

Appellant.

Oct 17, 2000

Rehearing Denied Nov. 14 2000

PER CURIAM.!

In 1989 Garry V. Giddens was injured while working for

his employer, Kansas City Southern Railway Company

(KCS). The injury occurred when a chain attached to a crane

broke causing a track assembly to fall on Giddens’ hand.

Treatment for the hand injury included eight surgeries.

Despite the treatment, Giddens was unable to return to work.

He then filed suit against KCS under the Federal Employer’s

Liability Act (FELA). In this third trial of the suit, the trial

court entered a $1,520,000 judgment for Giddens.? KCS

' This appeal was originally decided by the Court of Appeals, Western

District, in an opinion by the Honorable Laura Denvir Stith. Portions of

that opinion are incorporated without further attribution.

At the first trial in 1994, the jury awarded Giddens $500,000. The

trial court granted a new trial due to failure to give an instruction on

mitigation of damages. At the second trial in April 1995, the jury

awarded Giddens $1,400,000. The trial court again awarded a new trial,

this time on the basis of an improper closing argument by Giddons’

counsel.

appeals the judgment, asserting six claims of error. Finding

that the trial court committed no prejudicial error, the

judgment is affirmed.

Considered in the light most favorable to the verdict, the

evidence at trial showed: In 1989, Giddens was a foreman for

KCS’ maintenance-of-way department, which constructs and

maintains the railroad’s roadbeds and right-of-way. In May

1989, heavy rains in Louisiana caused “wash-outs,” i.e., areas

where the ballast under the ties and the rail are washed away,

leaving the rail and ties suspended without roadbed support.

Wash-out repair was not within Giddens’ general duties, but

KCS assigned him and his crew to washout repair.

On May 18, 1989, Giddens’ supervisor, Larry Dobson,

instructed him to begin repair work at milepost 612 and told

him that a KCS locomotive crane would be there. Giddens

and his crew were told to use the chains located on the crane

to lift the tracks out of the way while cross-tie supports were

inserted underneath the tracks.

On May 19, Giddens and his crew began to repair the

wash-out damage at milepost 612. Giddens had never before

performed wash-out repair by using a crane. At the work site,

a division engineer instructed Giddens to use a backhoe to

move all of the old fill and mud in the surrounding area

underneath the suspended track. This would build a

foundation more quickly than would stacking the cross-tie

support. The engineer said that, if the old mud did not

completely refill the hole under the tracks, Giddens and his

crew could “shim” the landfill by taking ties and building a

box structure on top of the fill.

Giddens and his crew climbed up the sides of the mud-

filled foundation in order to build up a mini-crib on top of the

mud. As Giddens inserted a tie underneath the track, he

placed his left hand on top of the tie to steady himself. While

his hand was on top of the tie, the chain from the crane

I RL PLL EL TITY INT SU 9

holding the track assembly broke, causing the suspended

track to drop and pin Giddens’ left hand between the tracks

and the tie at the top of the crib. After approximately three to

five minutes, those at the scene were able to attach the chain

back to the crane and lift the track off Giddens’ left hand.

Giddens received hospital emergency treatment and was

subsequently treated by a hand specialist. He suffered crush-

type fractures of the middle, ring, and small fingers of his left

hand. Several reconstructive surgeries were performed on his

left hand to repair the damage. While Giddens was receiving

the initial treatment for his hand injury, he was not permitted

to return to work. He remained on KCS’ payroll through its

wage continuation program.

Giddens’ injury was sufficiently severe that he was not

released to return to work for KCS until June 1990. In

December 1990, Giddens left work for vacation and

additional tendon surgery. He returned to work in May 1991.

In December 1991, Giddens again took a vacation and under-

went additional surgery. Two months later, Giddens

attempted to return to work, but a KCS physician disqualified

him from work because of safety concerns regarding his

ability to lift heavy objects. Subsequent surgeries followed. In

the summer of 1992, Giddens attempted to return to work

again, but failed a KCS field test. At this time, Giddens was

notified that he would be taken off the wage continuation

program as of October 1992.°

Giddens filed this suit in November 1992. He filed

interrogatories and a request for production asking for the -

names of persons who had obtained written statements from

Giddens, including a video or motion picture of him, and for

; Although Giddens was taken off KCS’ wage continuation program,

he remained eligible for disability pension benefits under the Railroad

Retirement Act.

copies of those statements and videotapes. No videotapes

were taken at that time.

Before the third trial, KCS hired an investigator to watch

Giddens. The investigator made videotapes of his surveillance

in April 1997. These were sent to counsel for KCS on May 16

and June 3. The videotapes showed Giddens performing

various activities, including raking leaves, sweeping and

clearing natural debris, breaking tree branches and sticks,

Carrying tree limbs, gathering trash, and mowing the lawn

with a push mower. In some parts of these videotapes,

Giddens appeared to be using his injured hand to hold or push

items.

On July 3, KCS conducted a supplemental deposition of

Giddens. The existence of the videotapes had not been

disclosed to Giddens. At the deposition, counsel for KCS

again questioned Giddens concerning the physical limitations

associated with his injured hand-this time specifically

addressing the types of activities captured on the video

surveillance. KCS asserts that Giddens’ answers as to his

ability to perform various activities were seriously at odds

with what the videotapes showed he could do in at least ten

respects. According to Giddens, his testimony and the

videotapes are not inconsistent, since the questions were

vague or dealt with abilities not depicted in the videotapes in

various respects.

On July 8, KCS served an amended discovery response

advising Giddens of the existence of the videotape

surveillance. Giddens’ attorneys subsequently deposed the

investigator who performed the video surveillance. He

explained when and how he obtained the videotapes and sent

them to counsel for KCS.

Giddens then filed a motion to exclude the video

surveillance tapes from evidence on the basis that KCS failed

seasonably to divulge information regarding the videotapes

by keeping them secret until after Giddens’ supplemental

deposition. The motion also requested such other relief as the

court deemed proper, including striking KCS’ pleadings or

imposing other sanctions.

Giddens’ motion was not ruled until the day of trial

January 13, 1998. The judge held that KCS had violated

discovery rules by failing seasonably to supplement its

interrogatory answers concerning its videotape “state-

ments” of Giddens. The judge did not exclude the videotapes

as a sanction for the discovery violation, however, because he

believed the tapes might be needed so that the jury could see

what activities Giddens could perform. Instead, he sanctioned

KCS by prohibiting use of Giddens’ post-surveillance

deposition testimony, even for impeachment purposes.

At trial, Giddens testified about his physical condition and

limitations. His answers were consistent with what the video-

tape surveillance showed about his condition. His prior trial

testimony was not used to impeach him. His testimony was

not fully consistent with portions of his excluded deposition

testimony, which indicated a more limited physical capacity.

Giddens also provided testimony from three expert

witnesses, including: (1) a railroad specialist who testified as

to the alleged deficiencies in KCS’ operations; (2) a

psychologist-rehabilitation specialist who testified as to his

injuries and his rehabilitation; and (3) an economist who

testified as to his lost wages. Giddens further introduced

OSHA regulations allegedly violated by KCS as evidence of

KCS’ negligence in operating and maintaining the work site.

The court entered judgment in accordance with the jury’s -

verdict. All KCS post-trial motions were overruled. KCS

appeals.

KCS challenges the submissibility of Giddens’ case and

argues that the trial court erred in failing to grant its motion

for judgment notwithstanding the verdict (JNOV). The

standard of review of denial of a JNOV is essentially the

same as for review of denial of a motion for directed verdict.

A case may not be submitted unless each and every fact

essential to liability is predicated upon legal and substantial

evidence. Houghton v. Atchison, Topeka & Santa Fe Railroad

Co., 446 S.W.2d 406, 409 (Mo. banc 1969). In determining

whether the evidence was sufficient to support the jury’s

verdict, the evidence is viewed in the light most favorable to

the result reached by the jury, giving the plaintiff the benefit

of all reasonable inferences and disregarding evidence and

inferences that conflict with that verdict. Jd. This Court will

reverse the jury’s verdict for insufficient evidence only where

there is a complete absence of probative fact to support the

jury’s conclusion. Seitz v. Lemay Bank and Trust Co., 959

S.W.2d 458, 461 (Mo. banc 1998).

Under FELA, the employer has a duty to provide its

employees with a reasonably safe place to work. If the em-

ployer’s negligence plays any part, even the slightest part, in

producing the employee’s injury, then a submissible case is

made. Qualls v. St. Louis Southwestern Ry. Co., 799 §.W.2d

84, 85-86 (Mo. banc 1990). Contributory negligence by the

employee will not bar recovery but may diminish the amount

of recovery in proportion to the amount of employee

negligence. Wilmoth v. Chicago, Rock Island and Pacific R.

Co., 486 S.W.2d 631, 636 (Mo.1972).

KCS asserts an exception to the usual comparative fault

rule applies here because, as foreman, Giddens was in charge

of the job site and assumed an independent duty to follow

KCS’ safety rules. Those rules precluded him from putting

his hand under the railroad tracks while they were raised.

However, the cases cited by KCS conflict with the adoption

of a comparative fault system under which employee

negligence is not used as a complete bar to recovery, but

merely as a reduction to the recovery. Jd. KCS’ reliance on

Walker v. Lykes Bros. S.S. Co., 193 F.2d 772 (2nd Cir.1952),

is misplaced as it is a Jones Act case rather than a FELA case.

Viewing the evidence in the light most favorable to

Giddens, there was evidence that Giddens was inexperienced

in both crane use and wash-out repair, that KCS failed to

provide the proper equipment to perform the wash-out repair,

and that the working conditions were unsafe. A jury could

reasonably infer from this evidence that KCS was negligent

in providing an unsafe work environment and that its lack of

care played at least some part in Giddens’ injury. Although

KCS’ evidence contradicted Giddens’ testimony, and

although KCS argues that its testimony was more credible

and cast serious doubt on Giddens’ version of events, it was

up to the jury to make its own credibility determinations as

well as any inferences of negligence from the evidence.

The trial court did not err in overruling KCS’ JNOV

motion.

KCS also challenges errors by the trial court in ruling on

the admission of evidence, in imposing sanctions for discov-

ery violations and in instructing the jury. The trial court is

vested with broad discretion regarding rulings on the

admission of evidence and the imposition of sanctions for

discovery violations. Judicial discretion is abused when the

trial court’s ruling is clearly against the logic of the circum-

stances then before the court and is so arbitrary and

unreasonable as to shock the sense of justice and indicate a

lack of careful consideration. Anglim v. Missouri Pac. R.R.,

832 S.W.2d 298, 303 (Mo. banc), cert. denied, 506 U.S.

1041, 113 S.Ct. 831, 121 L.Ed.2d 701 (1992). The failure to

submit an instruction to which a party is entitled is error, but

such error will warrant reversal only when the merits of the

action have been materially affected and when the error is

properly preserved. See Goff v. St. Luke’s Hosp. of Kansas

City, 753 S.W.2d 557, 564 (Mo. bane 1988).

KCS asserts the trial court erred in concluding that KCS

failed seasonably to supplement discovery and in imposing a

discovery sanction by barring introduction of Giddens’

videotaped deposition testimony at trial. KCS asserts that: (1)

its supplementation of its interrogatory answers was

seasonable in that it notified Giddens of the videotapes at

least seven months prior to trial, and (2) even if its

supplementation was not seasonable, barring introduction of

the deposition testimony for impeachment purposes was error

because it prevented the jury from knowing that Giddens had

previously testified under oath inconsistently with his

testimony at this trial and, thus, was not a credible witness.

Here, the trial court imposed a sanction for a discovery

violation in connection with a failure to reveal timely the

videotape surveillance of Giddens. Rule 56.01 allows

discovery of a party’s statements concerning the action, as

follows:

A party may obtain without the required showing a

statement concerning the action or its subject matter

previously made by that party. For purposes of this

paragraph, a statement previously made is: (a) a written

statement signed or otherwise adopted or approved by

the person making it, or (b) a stenographic, mechanical,

electrical, audio, video, motion picture or other

recording, or-a transcription thereof, of the party or of a

statement made by the party and contemporaneously

recorded.

Rule 56.01(b)(3) (emphasis added). A videotape of a party

constitutes a “statement” of the party within the meaning of

Rule 56.01. State ex rel. Missouri Pacific v. Koehr, 853

S.W.2d 925 (Mo. banc 1993). The video surveillance tapes in

this case are discoverable.

As previously noted, by interrogatories propounded in

1993, Giddens asked KCS whether it had any knowledge of

videotapes of Giddens taken since the time of the accident. In

its original response, KCS answered in the negative, for at

that time it had no such videotapes. Under Rule 56.01(e), a

party has an obligation seasonably to amend its answer to an

interrogatory if an initial response becomes inaccurate due to

later events. That rule requires:

(e) Supplementation of Responses. A party who has

responded to written interrogatories with a response that

was complete when made is under no duty to

supplement the response to include _ information

thereafter acquired, except as follows:

* * * *

(2) A party is under a duty to amend a prior response

seasonably if the party obtains information upon the

basis of which a party knows that the response (A) was

incorrect when made or (B) though correct when made is

no longer true.

Rule 56.01(e) (emphasis added).

Here, the parties agree that under Koehr and Rule 56.01(e)

KCS had a duty seasonably to supplement its prior inter-

rogatory answers by informing Giddens in writing of the

existence of the videotapes. The parties disagree whether

KCS’ supplementation was “seasonable” and whether the

court properly sanctioned KCS.

The construction given by the federal courts to their rules

does not control the interpretation of our state rules, even if

the rules themselves are nearly identical. However, the

experiences of those courts in applying rules similar to our

own are illustrative; Martin v. City of Washington, 848

S.W.2d 487, 495 (Mo. banc 1993). Federal Rule of Civil

Procedure 26(e)(2) is similar to our Rule 56.01(e). Both

require a “seasonable’” amendment to prior responses to

interrogatories. For purposes of the _ federal _ rule,

supplementation need not be made as each item of

information is learned but should be made at appropriate

10a

intervals during the discovery period, with special promptness

as the trial date approaches. Fed. R.Civ.P. 26(e), Advisory

Committee Note 1993. In this case, the videotapes were

disclosed within two months of the time they were made and

seven months before trial. This is more than sufficient time to

allow a party to prepare for trial.

Giddens contends that consideration of the time to prepare

for trial is not the only criteria. He urges that he was

prejudiced because the videotapes were not disclosed prior to

his last deposition. Revelation of the videotapes prior to the

supplemental deposition could only be prejudicial if Giddens

were to lie at his supplemental deposition, and the rules are

not intended to provide a means by which a plaintiff may

avoid the truth or avoid being caught in a lie. If Giddens is

completely truthful in his answers to questions propounded at

the deposition, then no prejudice occurs. Although the time to

prepare for trial is not the only factor in determining if a

supplemental disclosure is seasonable, in this case Giddens

fails to show any prejudice or any other factor indicating a

lack of seasonable supplementation. Koehr does not require a

different result. That case involved answers to interrogatories

in the first instance not supplementation. The trial court

abused its discretion in finding that the videotapes were not

seasonably disclosed.

Although the trial court erred by imposing a sanction for

KCS’ alleged discovery violation, the sanction imposed did

not prejudice KCS. The court permitted the videotapes to be

shown to the jury. The jury, thus, heard and saw relevant evi-

dence relating to the extent of Giddens’ physical injuries.

KCS appears to suggest that the deposition testimony

should have been admitted simply to impeach the general

credibility of Giddens. It was not prevented, however, from

impeaching Giddens with respect to any specific testimony by

use of the videotape or with his prior testimony from the first

or second trial on first or second deposition. The use of the

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other materials was sufficient to ensure that the jury had the

information necessary to evaluate the testimony properly. The

trial court’s sanction, although erroneous, did not prejudice

KCS.

KCS next asserts that the trial court erred in permitting

Giddens’ counsel to read and display to the jury certain regu-

lations promulgated under the Occupational Safety and

Health Act, 29 U.S.C. sections 651, et seq. (OSHA). The

OSHA regulations at issue concerned the type of chains used

on the locomotive crane that lifted the railroad track and the

OSHA requirements that such chains be tested, inspected, and

labeled for their appropriate use. John Edwin Blaylock, a

division engineer, and Larry Dobson, KCS’ company

representative, testified to KCS’ compliance with OSHA

regulations. Both witnesses testified that they were not

familiar with the OSHA regulations. During closing

argument, Giddens’ counsel referred to the OSHA

regulations, argued KCS’ duty to know applicable OSHA

regulations, and to follow them, and argued KCS’ conduct

failed to meet these OSHA regulations when it failed properly

to test, inspect and tag the chains.

OSHA regulations offered as evidence of the standard of

care owed by a party are competent evidence relevant to the

question of negligence. See Schneider v. Union Elec. Co., 805

S.W.2d 222, 229 (Mo.App.1991). Moreover, such rules and

regulations promulgated pursuant to federal statutes may be

judicially noticed and considered as evidence. See Kawin v.

Chrysler Corp., 636 S.W.2d 40, 44 (Mo. banc 1982). A trial

court may permit pertinent rules of this type to be read into

evidence and a violation of the substance of pertinent rules

may be hypothesized as evidence supporting a jury finding of

negligence. /d.; Hough v. Rapidair, Inc., 298 S.W.2d 378,

383 (Mo. banc 1957).

KCS argues that the OSHA regulations Giddens introduced

into evidence were not in effect at the time of the accident in

ba Dare a!

12a

1989; the regulations from the 1984 volume of the Code of

Federal Regulations were offered at trial. KCS does not

dispute, in its reply brief, Giddens’ contention that the

relevant regulations remained the same from 1979 to 1993.

Giddens presented sufficient evidence of the relevance and

applicability of the OSHA regulations at issue to allow their

admission.

Finally, while KCS argues that Giddens used the OSHA

regulations as a basis for arguing negligence per se, the

OSHA regulations were used only to support the argument

that KCS breached a standard of care it owed to its employees

by violating the regulations. For this purpose, the regulations

were competent evidence that could be considered by the

jury, along with other evidence bearing upon the question of

KCS’ negligence. See, e.g., Schneider, 805 S.W.2d at 229.

Negligence per se was neither argued nor submitted.

Therefore, it was not error for the trial court to admit

evidence of the OSHA regulations and their alleged violation

by KCS.

As it was not error to admit the OSHA regulations, KCS’

argument that the trial court erred in failing to give the jury an

instruction withdrawing from its consideration evidence of

the regulations and of KCS’ alleged violation of them is

rejected.

KCS asserts the trial court erred in failing to find that the

amount of the jury verdict was against the weight of the evi-

dence in that: (1) the $1,520,000 award was so grossly

excessive as to indicate bias, passion and prejudice on the

part of the jury; (2) there was insufficient evidence to support

the amount of the award; and (3) the amount of the award v. us

so large as to show that the jury failed to follow the court’s

instruction that Giddens had a duty to mitigate damages.

The standard of review of a claim that the trial court erred

in failing to find the verdict excessive is a narrow one: an

appellant must show both that the verdict is excessive and

13a

that some event occurred at trial that incited the bias and

prejudice of the jury. The mere size of the verdict does not in

and of itself establish that it was the result of bias or passion

and prejudice without showing some other error was

committed during the trial. Means v. Sears, Roebuck & Co.,

550 S.W.2d 780, 788 (Mo. banc 1977). KCS has failed to

meet this standard, for it has failed to identify any trial event

that could have caused the bias and prejudice it claims

occurred. The errors specifically alleged have not been found

to be meritorious; therefore, they cannot serve as a predicate

for a finding of excessiveness of the verdict.

KCS also fails to meet the second prong of the

excessiveness test by showing that the size of the verdict is so

grossly excessive as to shock the conscience because it is

glaringly unwarranted. In reviewing verdicts to determine if

they are excessive, appellate courts overturn only those ver-

dicts that are obviously out of line and grossly improper. To

obtain relief on the basis of excessive verdict, the defendants

must demonstrate that the verdict is glaringly unwarranted so

as to shock the conscience of the court. Tune v. Synergy Gas

Corp., 883 S.W.2d 10, 21 (Mo. banc 1994). The test applied

by appellate courts is not fine-tuned and should not be; the

appellate courts generally defer to the jury’s decision as to the

amount of damages. This is as it should be because the deter-

mination of the amount of damages is a task that lay juries are

particularly able to perform. /d.

Here, as a result of the accident, Giddens sustained

permanent injury to his left hand, limiting the dexterity and

overall strength in his left arm. The injury was sufficiently

severe that he was unable to work for one year after the injury

and required repeated surgeries and consequent additional

month off work while he recovered. A disability evaluation

rated Giddens at a 30% disability of the left upper extremity

and an 18% disability of the body as a whole. At the time of

trial, Giddens was 44 years old with a high school education.

14a

Giddens’ entire work history consisted of heavy labor for the

railroad. He was ultimately let go by the railroad because he

was unable to continue employment in this line of work due

to his injury. A rehabilitation specialist testified that Giddens’

future employment opportunities would be limited to areas of

light and sedentary work requiring minimal use of the left

hand. The specialist offered the opinion that, even were

Giddens able to find employment of this nature, it most likely

would be an unskilled, minimum wage job and that, because

of Giddens’ injury, it was reasonable to expect he would

suffer periods of unemployment. A professor of economics

testified that the present value of Giddens’ total lost earnings

ranged from a high of $1,017,019, to a low of $541,836,

depending on when Giddens would have retired and whether

he would be able to find minimum wage employment.

While the jury award of $1,520,000 based on this evidence

was generous, particularly if the jury found Giddens to be

contributorily at fault to a substantial degree, it was not so

grossly excessive, in light of the amount of his past and

potential future lost wages and in light of his injuries, pain

and suffering, that it shocks the conscience of the Court or

causes this Court to believe that the jury award was based on

passion and prejudice rather than on the evidence.

In its next point, KCS objects to the manner in which the

trial court directed the jury to record its damage determina-

tions.

In most Missouri cases the jury is asked to determine a

total amount of damages and the percentage of fault of

plaintiff and of defendant, and the jury is told that the judge

will reduce the total damages awarded by the percentage of

fault attributed to plaintiff. See, e.g., MAI 37.03. FELA,

however, requires the jury rather than the judge to diminish

the total damages by the comparative fault of the plaintiff.

45 U.S.C. sec. 53. For this reason, the jury in FELA cases is

instructed that after it determines the sum of damages to

15a

which it believes plaintiff is entitled as a result of the

defendant’s conduct, “If you find plaintiff contributorily

negligent as submitted in Instruction Number then

your award must be determined by diminishing plaintiff’s

total damages in proportion to the amount of negligence

attributable to plaintiff.” MAI 8.02. The Committee Com-

ment to MAI 8.02 explains this variance:

The submission of comparative fault in an F.E.L.A.

case differs from the method in Chapter 37.00 for use in

cases based on Missouri law. F.E.L.A. cases are

governed by federal law. Under 45 U.S.C. Sec. 53, the

jury diminishes damages in proportion to the employee’s

negligence. Under Chapter 37.00, the jury determines

total damages and plaintiffs percentage of fault but the

judge makes the actual computation diminishing total

damages to the amount recoverable by plaintiff.

MAI 8.02, Committee Comment (1996 Revision).

KCS objected to instructing the jury in accordance with

MAI 8.02 on the basis that this instruction “uncon-

stitutionally discriminates against railroads by instructing in

FELA cases differently than in other similar comparative

fault cases.” KCS never elaborated on this objection by ex-

plaining for the trial court how or why this alleged

discrimination was unconstitutional, and the trial court

overruled the objection. In this Court, KCS now argues that

the instruction and verdict form are unconstitutional in that

they treat railroads differently from other negligent

defendants and that this violates the Missouri and United

States constitutions’ due process, equal protection and

supremacy Clauses.

KCS has failed to preserve its claim that the manner of

submitting FELA cases violates the Missouri constitution. It

nowhere cites to provisions of the Missouri constitution that

are allegedly violated (Missouri, of course, has no supremacy

l6a

clause), nor does it argue how they are violated. It limits the

argument portion of its brief to a discussion of the alleged

violation of federal law and the federal constitution. We

accordingly do not further address its claims of violation of

the Missouri Constitution. Beatty v. State Tax Comm'n, 912

S.W.2d 492, 498-99 (Mo. banc 1995).

KCS does allege in its argument in this Court that due

process is violated because the parties and the appellate

courts have no means of determining whether the jury

correctly made its mathematical computations in diminishing

total damages by the amount of plaintiff's negligence or

whether it properly reduced total damages by plaintiff’s fault

in the first instance. It urges that this denies meaningful

judicial review. This is not the same argument that KCS made

to the trial court below. There, it argued not that the

instruction was vague or ambiguous, or denied the parties

meaningful appellate review, but rather that the instruction

unconstitutionally discriminated between FELA and non-

FELA cases. Where an alleged error on appeal relating to an

instruction differs from the objections made to the trial court,

the error may not be reviewed on appeal. Seidel v. Gordon A.

Gundaker Real Estate Co., Inc., 904 S.W.2d 357, 364

(Mo.App.1995); see State v. Hankins, 642 S.W.2d 606, 611

(Mo. 1982). This portion of KCS’ argument also is not

preserved.

The bulk of KCS’ argument in this Court on the issue of

submission of damages asserts that the distinction between

how the jury records its damage verdict in FELA and non-

FELA cases constitutes unconstitutional “discrimination”

against FELA cases. It never explains in the argument

portions of its brief how this alleged discrimination rises to a

constitutional level, or what constitutional provisions are

violated or how the violation occurs. In its point relied on,

KCS suggests a violation of the equal protection clause, but it

never refers to that clause in its argument nor does it cite any

17a

Cases supporting an equal protection claim. That argument is

deemed abandoned.

While KCS also fails to refer to the supremacy clause

directly in the argument section of its brief, it does support its

discrimination argument by citing to a number of federal

cases that have struck down state laws discriminating against

the bringing of FELA actions. See, e.g., New York v. United

States, 505 U.S. 144, 112 S.Ct. 2408, 120 L.Ed.2d 120

(1992); Dice v. Akron, Canton & Youngstown R.R. Co.. 342

U.S. 359, 72 S.Ct. 312, 96 L.Ed. 398 (1952); Mondou v. New

York & New Haven R.R. Co., 223 U.S. 1, 32 S.Ct. 169, 56

L.Ed. 327 (1912). It notes these cases do not allow a state to

“discriminate disadvantageously against actions for

negligence under the Federai Act as compared with local

causes of action in negligence.” While most of these cases do

not address the supremacy clause issue, Mondou and McKnett

v. St. Louis & S.F. Ry. Co., 292 U.S. 230, 54 S.Ct. 690-78

L.Ed. 1227 (1934), cite that clause as a basis for striking

down application of state law in FELA cases regarding

jurisdictional issues. Mondou, 223 U.S. at 57-59, 32 S.Ct.

169.

Here, however, KCS has not identified any way in which

Missouri is discriminating disadvantageously against actions

for negligence under FELA. It is simply objecting to how

Missouri allows the jury to record its damage verdict in such

cases, not to law governing the standards under which such

damages may be awarded or the amount of damages that may

be awarded. KCS cites no authority for the proposition that it

is disadvantageous to FELA actions if jury instructions are

not identical in FELA and non-FELA cases, and none is

found. Moreover, none of these cases addresses the issue now

raised by KCS, that it is unconstitutional to require a jury to

break out its damages and comparative fault determination

separately in non-FELA cases but not in FELA cases.

Accordingly, KCS’ constitutional arguments are rejected.

18a

In its last point on appeal, KCS asserts the trial court erred

in refusing to admit evidence of Giddens’ Railroad Re-

tirement Disability Benefits. As a general rule, evidence of a

plaintiffs receipt of disability pension payments under the

Railroad Retirement Act is inadmissible at trial under the

“collateral source doctrine” because its probative value is

outweighed by its potential prejudicial effect on the jury.

Eichel v. New York Cent R.R. Co., 375 U.S. 253, 84 S.Ct.

316, 11 L.Ed.2d 307 (1963). Numerous rationales have been

used to justify the application of the coliateral source rule.

See Washington by Washington v. Barnes Hosp., 897 S.W.2d

611, 619 (Mo. banc 1995). KCS argues, however, that the

rationale behind exclusion of collateral source payments does

not apply to Giddens’ pension benefits, since they are funded,

at least in part, by the railroads themselves. Eichel forecloses

this argument.

Nevertheless, KCS argues that an exception to the

collateral source rule has been recognized where the plaintiff

injects his financial condition into a case. Moore v. Missouri

Pacific R. Co., 825 S.W.2d 839, 842-43 (Mo. banc 1992).

KCS is precluded from raising this issue by the law of the

case doctrine. The general rule is that the decision of a court

is the law of the case for all points presented and decided, as

well as for matters that arose prior to the first adjudication

and might have been raised but were not. The court’s decision

remains the law of the case throughout all subsequent

proceedings, both in the trial and appellate courts. Shahan v.

Shahan, 988 S.W.2d 529, 533 (Mo. banc 1999). This doctrine

applies in this case because the issue of whether the testimony

of the rehabilitation specialist as to Giddens’ motivation to

work opened the door for introduction of evidence of Gid-

dens’ pension benefits was determined unfavorably to KCS in

the first appeal of this case. Giddens v. Kansas City Southern

Ry. Co., 937 S.W.2d 300, 305 (Mo. App. 1996). KCS is not

free to re-litigate this issue now.

The judgment of the trial court is affirmed.

eer le

PO nw Sta! by’ «

LIMBAUGH and COVINGTON, JJ., concur; WOLFF, J.,

concurs in separate opinion filed; WHITE and BENTON, JJ.,

concur in opinion of WOLFF, J.

PRICE, C.J., and HOLSTEIN, J., not participating.

MICHAEL A. WOLFF, Judge, concurring.

The trial judge was correct in determining that the railroad

and its attorneys violated the duty seasonably to supplement,

under our Rule 56.01(e), as to the existence of surveillance

videotapes of plaintiff Gidden. We should interpret the word

“seasonably” to refer to the time standard for interrogatories.

Applying the time standard for interrogatories to this case, the

railroad had an obligation to correct its answer to the

interrogatory within 30 days after it learned that it had

videotapes of Giddens.

“We have come a long way since the days of the ‘sporting

theory of justice.’ State ex rel. State v. Riley 992 S.W.2d 195,

197 (Mo. banc 1999). Pre-trial discovery performs important

and legitimate functions. Liberal discovery aids in overall

trial preparation, narrowing of issues, promotion of early

settlements, and most importantly, the ascertainment of truth.

Our rules should be interpreted to promote the search for truth

and evenhandedly minimize game playing by lawyers on both

sides of counsel table.

The supplementation rule promotes the search for truth. It

eliminates the need for periodic waves of repetitive interroga-

tories. Prior to the 1970 version of Federal Rule 26, upon

which our Rule 56.01 is based, federal decisions recognized

that a court, in ordering a party to answer an interrogatory,

could expressly provide that the interrogated party was under

a continuing duty to supplement in light of new information.

Some courts held that the discovering party itself could make

the interrogatories continuing by so providing in_ its

interrogatories, while other courts refused to allow this. See 8

CHARLES ALAN WRIGHT, ARTHUR R. MILLER & RICHARD L.

te opin ea

i. CA caee a

20a

MARCUS, FEDERAL PRACTICE AND PROCEDURE sec. 2048 (2d

ed.1994),.

Rule 56.01(e) requires a party “seasonably” to supplement

its interrogatory, answers as to the identity of witnesses, in-

cluding experts, or when the party learns that an interrogatory

response was incorrect when made or is no longer true. If we

were to deem these interrogatories as continuing, then the

duty “seasonably” to supplement would logically incorporate

the time limit in our Rule 57.01(a), which in this instance

would be 30 days after the date that “the party obtains

information upon the basis of which the party knows that the

response (A) was incorrect when made or (B) though correct

when made is no longer true.” Rule 56.01(e)(2).

There is no reason the time limit for supplementing an

interrogatory answer should be different from the time limit

for answering an interrogatory in the first place.

The use of the word “seasonably” in the rule, rather than

specific reference to time limits, recognizes the flexibility

needed when a trial date is imminent, which was not the case

here. The court of appeals in State ex rel. Missouri Highway

and Transportation Commission v. Pully, 737 S.W.2d 241,

244-45 (Mo.App. 1987), reads the word “seasonable” to mean

“reasonable.” In cases where trial is imminent, use of a 30-

day time limit would be unreasonable. This interpretation

would track the flexibility given in Rule 57.01(a) for the court

to allow a shorter or longer time than 30 days for the

answering of interrogatories. The presumption in all cases

should be that the 30-day time limit for interrogatories applies

| to the duty to supplement. The presumption is overcome

where circumstances, such as the timing of the trial setting or

pretrial discovery order, warrant a shorter or longer time. No

such circumstances appear in this case.

If a party with a surveillance videotape wishes to withhold

that evidence from discovery until the plaintiff has been

5 AEE Sk SINR A ME ERAT EN

————————

2la

deposed, the party—in this case the railroad— should seek a

protective order under Rule 56.01(c) or an order under Rule

56.01(d) as to the sequence and timing of discovery. To fail-

to disclose even the existence of such materials, which have

properly been requested, does not further the search for truth

and violates our discovery rules.

Federal courts sometimes permit a delay in production of a

plaintiffs statements by issuing a protective order allowing

the defendant to delay disclosure of statements until after the

plaintiff's deposition has occurred. See Torres-Paulett v. Tra-

dition Mariner, Inc., 157 F.R.D. 487, 489 (S.D.Cal.1994);

Smith v. Central Linen Service Co., 39 F.R.D. 15, 18

(D.Md.1966). Where no protective order has been requested,

federal courts have held that the statement must be produced.

See, e.g., Willard v. Constellation Fishing Corp., 136 F.R.D.

28 (D.Mass. 1991). The same protective order provisions are

available under our Rule 56.01(c). —

With due respect to the federal precedents, a motion for

protective order does not precisely fit this situation, because

the grounds for such an order are “to protect a party or person

from annoyance, embarrassment, oppression, or undue

burden or expense.”’ The more appropriate motion, it seems

' Rule 56.01(c) provides:

from whom discovery is sought, and for good cause shown, the

court may make any order which justice requires to protect a party

or person from annoyance, embarrassment, oppression, or undue

burden or expense, including one or more of the following:

(1) that the discovery not be had;

(2) that the discovery may be had only on specified terms and

conditions, including a designation of the time or place;

(3) that the discovery may be had only by a method of discovery

other than that selected by the party seeking discovery;

(4) that certain matters not be inquired into, or that the scope of

the discovery be limited to certain matters;

FORD ES a

22a

to me, is a motion under Rule 56.01(d)” which allows the

court, “in the interest of justice,” to set the sequence of

discovery.’ Thus, under this provision, a court could order

that the videotapes be withheld until the plaintiff's deposition

has been taken. Rule 56.01(c) requires a party to show “good

cause” to obtain a protective order, and Rule 56.01(d) recites

“as justice requires.” The federal trial court cases cited above

suggest that a defendant would be entitled to a protective

order by simply asserting that the defendant wants the benefit

of an unrefreshed recollection of the facts. Other trial judges,

however, might require a party to show, by reference to

pleadings and discovery, the possibility that a plaintiff's

claims may be overblown.

(5) that discovery be conducted with no one present except

persons designated by the court;

(6) that a deposition after being sealed be opened only by order

of the court;

(7) that a trade secret or other confidential research,

development, or commercial information not be disclosed or be

disclosed only in a designated way;

(8) that the parties simultaneously file specified documents or

information enclosed in sealed envelopes to be opened as directed

by the court.

If a motion for a protective order is denied in whole or in part,

the court may, on such terms and conditions as are just, order that

any party or person provide or permit discovery. The provisions of

Rule 61.01 apply to the award of expenses incurred in relation to the

motion.

(Rule 56.01(c) is similar to federal Rule 26(c).)

? (d) Sequence and Timing of Discovery. Unless the court upon

motion, for the convenience of parties and witnesses and in the interests of

justice, orders otherwise, methods of discovery may be used in any

sequence and the fact that a party is conducting discovery, whether by

deposition or otherwise, shall not operate to delay any party’s discovery.

* Our Rule 56.01(d) is similar to federal Rule 26(d).

SS a ee ee ee

23a

Requiring a party possessing statements or surveillance

video to move for an order will prevent knowing concealment

of discoverable materials that have been properly requested.

When a party is required to seek an order to withhold

disclosure of such material temporarily, the defendant may

still have the benefit of getting the plaintiff’s version of the

facts on the record before producing a statement that might

affect plaintiff's testimony. An order should also ensure that

the plaintiff will have the statement in time to prepare for

trial.

This interpretation would have the salutary effect of

ensuring that the deponent is careful not to exaggerate,

because the deponent cannot be sure what written or

videotaped statement may be produced in discovery after the

deposition. See 23 AM JUR. 2d Deposition and Discovery sec.

46 (1983).

In this case, when plaintiff’s counsel was served with a

notice that his client was to be deposed again, the railroad

should have moved for an order allowing it not to disclose the

videotaped surveillance until after the deposition was taken.

If such a motion is not required, the option is for plaintiff’s

counsel to file a specific request for supplementation of the

previous interrogatories, or a repetitive set of interrogatories,

and then go to the court to have the time shortened for the

responses so that the attorney can get answers before the

client’s deposition. While our Rule 56.01(e)(3) allows for

such repetitive requests, we should not clutter up the dis-

covery process by encouraging their use.

When we interpret the word “seasonably” as presumptively

incorporating the time limits of the interrogatory rules, we

have a more precise standard for determining when the

supplementation rule is violated. In this case, the railroad was

required to disclose the videotapes no later than June 15, and

July 3, 1997, which were 30 days following the respective

dates on which the railroad’s attorney received the two

a nL nes See ee ee nines

24a

videotapes. However, the videotapes were not disclosed until

July 8, 1997, after the plaintiff's deposition was concluded.

Under this standard, the trial court did not abuse its discretion

in imposing a sanction on the railroad for failing seasonably

to supplement its answers."

If we uphold the trial judge’s conclusion that the railroad

violated its duty “seasonably” to supplement its interrogatory

answers, then the trial judge’s sanction— prohibiting use of

the deposition at trial— makes sense. The resolution by the

trial judge furthered the trial as a search for truth. The trial

judge appropriately allowed the railroad to use the

surveillance videos to minimize the plaintiff’s injuries. What

the trial judge prohibited was the use of the alleged “gotcha”

deposition; at most the deposition may have shown that

Giddens had previously exaggerated his injuries or the extent

of his disability. Juries of course do penalize plainiiffs, some-

times in the measure of damages, if they believe a plaintiff

has exaggerated, lied, or is a malingerer. Wha’ ihe railroad

was deprived of, in this instance, was perhaps the opportunity

for some jury justice that would not have been legally

relevant to the real issues in the case, i.e., whether the railroad

was negligent and what were the nature and extent of the

plaintiff’s injuries.

I would uphold the trial judge’s resolution of this issue. I

concur in the result reached by the principal opinion, and in

the analyses of the other issues in the principal opinion.

* The deposition was held on July 3, 1997. It is possible that the

second videotape would not have been seasonably produced, under this

standard. But certainly the first videotape, from May 15, 1997, would

have been disclosed, or an appropriate order sought

25a

APPENDIX B

[Filed Nov. 1, 2000]

IN THE SUPREME COURT OF MISSOURI

GARRY V. GIDDENS

Plaintiff/Respondent,

THE KANSAS CITY SOUTHERN RAILWAY COMPANY,

Defendant/Appellant.

APPELLANT KANSAS CITY SOUTHERN’S

MOTION FOR REHEARING

Comes now appellant. The Kansas City Southern Railway

Company, pursuant to Rule 84.17, and moves that the Court

grant rehearing on the Opinion of the Court filed on October

17, 2000 and, in support thereof, appellant states:

With respect to the issue of timeliness of supple-

mentation of discovery responses and the trial court’s

sanction imposed (Opinion Per Curiam Op.

8-12):

1. In stating: “(Giddens’ trial) testimony was not fully

consistent with portions of his excluded deposition

testimony,” Per Curiam p. 6. and that “The (excluded)

deposition may have shown that Giddens had previously

exaggerated his injuries or the extent of his disability”,

Concurring Opinion. p. 6, the Opinion has overlooked

material matters of fact in the case, i.e. that the wrongfully

excluded deposition testimony was not just a matter of not

being “fully consistent” or an “exaggeration.” It was lies. See

Exhibit “A” hereto.

2. The Per Curiam Opinion’s conclusion that although the

trial court abused its discretion and erred in excluding

‘i

;

26a

Giddens’ deposition testimony, such did not result in

prejudice to the defendant overlooks the material matter of

fact that the plaintiff’s testimony here as to the defendant’s

alleged negligent conduct contributing to cause his injury was

largely uncorroborated and thus was subject to only the same

“guarantee of trustworthiness” (i.e. Mr. Giddens’ truthful-

ness) as Mr. Giddens’ testimony as to the extent of his

injuries. That the finder of fact in this case, the jury, was not

allowed to hear Mr. Giddens’ sworn deposition testimony,

which was clearly relevant and material and admissible under

Rule 57.07 and the other authorities cited, did result in

substantial prejudice to the Kansas City Southern. The finder

of fact was prevented from hearing and considering that a

person who, at the time of giving his sworn deposition

testimony, was prepared to lie to them as to the extent of his

injuries would be just as inclined to lie as to the cause of his

injuries. This is not a matter of the appellant’s being deprived

of “the opportunity for some jury justice that would not have

been legally irrelevant to the real issues in the case,”

Concurring Opinion p. 6, it is a matter that the appellant was

denied the opportunity for jury justice period.

3. Ten years ago, prior to the amendment to Rule

56.01(b)(3), making surveillance materials discoverable as a

“statement” of the plaintiff, Mr. Giddens would have come

into this courtroom and testified exactly as he did in his

deposition, which was excluded. Defendant would then have

shown the videotape clearly establishing the falsity of that

testimony. Mr. Giddens, had he received any verdict whatso-

ever at the hands of the jury, would surely not have received

$1,520,000. Again, this is not “jury justice” on an irrelevant

issue, unless truth in the courtroom is irrelevant and the right

to test and impeach testimony is no longer relevant in the

adversarial system. This does not indicate progress in the law.

27a

With respect to the excessiveness of the verdict and judgment

(Per Curiam Op. 13-16):

4. In holding (Per Curiam Opinion p. 14): “The errors

specifically alleged have not been found to be meritorious;

therefore, they cannot serve as a predicate for a finding of

excessiveness of the verdict,” the Per Curiam Opinion

overlooks the fact that the Per Curiam Opinion did find that

the specification of error pertaining to the seasonability of the

supplementation of discovery responses and the trial court’s

erroneous imposition of sanctions was meritorious. The Per

Curiam Opinion merely dismisses such meritorious

specification of error as being non-prejudicial.

5. The Opinion further overlooks and misinterprets

existing law in that, in order for an appellate court to find

excessiveness of verdict the irregularity occurring at trial

need not rise to the level of reversible error standing by itself.

It need only be an “error or occurrence sufficient to incite

prejudice.” Smith v. Archbishop of St. Louis, 632 S.W.2d 516

(Mo. App. 1982):

To successfully claim that the award is so excessive as to

show jury prejudice defendant must present evidence of

some error or occurrence at trial sufficient to incite

prejudice. /d. at 524. (Emphasis added)

With respect to the specification of error that the jury was

wrongfully instructed with respect to its damage

determinations (16-19):

6. The Opinion itself, when it states “While the jury award

of $1,520,000 based on this evidence was generous,

particularly /F the jury found Giddens to be contributorily at

fault to a substantial degree. . . .” proves the very point which

Kansas City Southern attempted to make in this case. This

Court does not know what the jury found regarding Mr.

Giddens’ fault. Neither did the Court of Appeals. Neither did

the trial court. The reason they did not is the erroneous MAI

damage instruction given to them by the trial court.

28a

The Per Curiam Opinion says, p. 17, that the appellant

abandoned this point by not explaining for the trial court how

MAI unconstitutionally discriminates against railroads. This

issue was “explained” and argued thoroughly to the trial

court, more off the record than on. That is why, when the trial

court went on the record to record the instructions, the court

said: “All right. I want to go, finally over the instructions on

the record.” (emphasis added) (Tr. 565).

Even in the very brief record made, counsel for appellant,

objected on the record to the jury instructions which are

peculiar under MAI to Federal Employers’ Liability Act

cases, only i.e.:

Defendant objects to the form. We will concede that this

adheres to proper MAI format. We object because we

believe MAI unconstitutionally discriminates against

railroads by instructing in FELA cases differently than in

other similar comparative fault cases. (Tr. 566)

And then further, specifically with respect to MAI 8.02,

counsel for appellant stated: “We think (8.02) ought to be

modified as per other comparative fault cases.” (Tr. 568)

True, the words “equal protection” do not appear of record.

However, we respectfully submit that what “equal protection”

is all about is equal treatment of citizens under the law which,

the MAI instructional scheme is not.

We respectfully disagree with the Court’s comment, Per

Curiam Op. 19: “Here, however, KCS has not identified any

way in which Missouri is discriminating disadvantageously

against acts of negligence under FELA.” What the Missouri

instructional scheme for FELA cases does, by not requiring

the jury to state percentages of fault which it has found,

effectively thwarts meaningful review of a jury’s verdict

either by a trial court or an appellate court. It thus does, in the

most fundamental sense, “discriminate disadvantageously”

against the KCS and railroads. That this Court did not know

29a

what the jury found is clearly established from the Court’s

Opinion, Per Curiam Op. P. 15, “While the jury award of

$1,520,000 based on this evidence was generous, particularly

IF the jury found Giddens to be contributorily at fault to a

substantial degree, . . .” (emphasis added) establishes that

neither this Court nor the trial court could know “if,” because

of the instructional scheme which does discriminate

disadvantageously against KCS and all railroads in FELA

trials. The Opinion thus overlooks material matters of fact,

law and the briefing before it in this regard. —

With respect to the specification of error that the jury should

have been allowed to know that Mr. Giddens was receiving a

Railroad Retirement Board disability pension funded by this

defendant (Per Curiam Op. 19-20):

7. The Per Curiarn Opinion. p. 20, dismisses this

contention under “the law of the case doctrine.” True. this

matter was determined unfavorably to the KCS in the

plaintiff's appeal of this case. Giddens v. Kansas City

Southern Ry. Co., 937 S.W.2d 300, 305 (Mo. App. 1996).

However, this version of Giddens was an opinion of the

Missouri Court of Appeals. The Missouri Supreme Court is

not bound, under the law of the case doctrine, by an opinion

of a lower court.

CONCLUSION

The jury in this case, the fact finder, was prevented from

hearing impeachment fact evidence which had a direct,

substantial and prejudicial effect on its excessive verdict.

Thus, the jury, for no good, but erroneous, reasons, was

operating partly in the dark. Similarly, when it came time for

the trial court, the Court of Appeals and this Court to attempt

to review the propriety of the jury’s verdict, all of these courts

were preciuded from meaningful review by reason of the fact

that none of the courts has any idea of what percentages of

fault were found or what total damages the jury assessed.

30a

This is because of an unconstitutionally defective instruc-

tional scheme applicable only in Federal Employers’ Liability

Act cases, which “discriminates disadvantageously” against

railroads because they are effectively denied their right of

judicial review of a jury’s verdict. Thus, in certain material

respects, the jury did not know, and in other material respects,

the reviewing courts do not know. Justice this blind is no

justice at all.

Respectfully submitted

LATHROP & GAGE L.C.

/s/ Harlan D. Burkhead

HARLAN D. BURKHEAD #22239

2345 Grand Boulevard

Kansas City, MO 64018

(816) 292-2000 FAX: 292-2001

An Attomey for Defendant/Appellant

3la

APPENDIX C

TRANSCRIPT OF PROCEEDINGS

DEPOSITION TESTIMONY, 7/3/97, Ex. 89

Q. Your home there in Pollock, do you do your yard

work there?

A. My kids do.

Q. You don’t do any of it or do you do some of it?

A. I try to get out of all of it. I have to supervise, make

sure—because they’re still young, but they do it.

TRIAL TESTIMONY, 1/21/98, Tr. 399, et seg.

Q. Do you do yard work now?

A. Yes, sir, [can do my yard work.

* * * *

DEPOSITION TESTIMONY, 7/3/97, Ex. 89

Q. Can you rake?

A. Not really good. I can prop it on this hand and do like

that, but we don’t rake the yard anyway.

TRIAL TESTIMONY, 1/21/98, Tr. 399, et seq.

Q. Can you rake?

A. Ican.

i. a a.

DEPOSITION TESTIMONY, 7/3/97, Ex. 89

Q. Can you sweep, for instance, with your—

A. I sweep with my right hand.

TRIAL TESTIMONY, 1.21.98, Tr. 399, et seg.

Q. Can you sweep?

A. Yes, sir.

* * * *

DEPOSITION TESTIMONY, 7/3/97, Ex. 89

Q. Can you twist things with your left hand?

A. No. Like a jar or something?

- 32a

Q. Right.

A. No. Ihave to use my right hand to open it.

TRIAL TESTIMONY, 1/21/98, Tr. 399, et seq.

Q. Can you twist with your left hand?

A. CanI twist? To a degree yes. My wrist, yes.

* * * *

DEPOSITION TESTIMONY, 7/3/87, Ex. 89

Q. Can you use your left hand, for instance, to break

things like if you were breaking a stick between your left and

right hand?

A. No.

TRIAL TESTIMONY, 1/21/98, Tr. 399, et seq.

Q. Can you go out and break sticks?

A. Ican break with my right hand. I can hold them to a

degree, with these fingers, in my left, yes.

* * * *

DEPOSITION TESTIMONY, 7/3/97, Ex. 89

Q. Can you carry limbs in your left hand?

A. I pull them with my right hand. I might if they’re

little ones. I could stack them in my arm.

TRIAL TESTIMONY, 1/21/98, Tr. 399, et seq.

Q. Do you carry limbs?

A. Ican carry limbs.

* * * *

DEPOSITION TESTIMONY, 7/3/97, Ex. 89

Q. Like if you’re picking up trash and throwing it, could

you throw it with your left hand?

A. No, I don’t—I don’t know.

TRIAL TESTIMONY, 1/21/98, Tr. 399, et seq.

Q. Have you thrown trash?

33a

A. I can throw trash. I can do any of that. You know, as

long as I don’t overload myself, I can do just about any of

that, yes.

* * * *

DEPOSITION TESTIMONY, 7/3/97, Ex. 89

Q. Are you abie to use your left hand to pull things?

A. No, sir.

TRIAL TESTIMONY, 1/21/98, Tr. 399, et seq.

Q. Can you pull on things?

A. Ican.

* * * *

DEPOSITION TESTIMONY, 7/3/97, Ex. 89

Q. Can you use it to hold things and carry things?

A. No, sir.

TRIAL TESTIMONY, 1/21/98, Tr. 399, et seq.

Q. Can you carry things? :

A. Toacertain weight, yes.

* * * *

DEPOSITION TESTIMONY, 7/3/97, Ex. 89

Q. Can you, for instance, push a lawn mower?

A. If—Ican push a little bit with my right hand.

TRIAL TESTIMONY, 1/21/98, Tr. 399, et seq.

Q. Can you push?

A. Yes.

34a .

APPENDIX D

[Logo]

CLERK OF THE SUPREME COURT

STATE OF MISSOURI

POST OFFICE BOX 150

JEFERSON CITY, MISSOURI 65102

THOMAS F. SIMON TELEPHONE

CLERK (573) 751-4144

November 14, 2000

Mr. Harlan D. Burkhead

Suite 2800

2345 Grand Boulevard

Kansas City, MO 64108-2684

In Re: Garry V. Giddens vs. The Kansas City Southern

Railway Company Missouri Supreme Court No.

SC82602

Dear Mr. Burkhead:

Please be advised that the Court entered the following order

on this date in the above-entitled cause:

“Appellant’s motion for rehearing overruled. Price, C.J.,

and Holstein, J., not participating.”

Very truly yours,

THOMAS F. SIMON

/s/ Cynthia L. Turley

CYNTHIA L. TURLEY

Deputy Clerk, Court en Banc

cc:

Mr. Patrick S. O’Brien

35a

APPENDIX E

INSTRUCTION NO. 10

If you find in favor of plaintiff, then you must award

plaintiff such sum as you believe will fairly and justly

compensate plaintiff for any damages you believe plaintiff

sustained and is reasonably certain to sustain in the future as a

result of the occurrence mentioned in the evidence. Any

award of future pecuniary damages must be included at

present value. Any award you make is not subject to income

tax. If you find that plaintiff failed to mitigate damages as

submitted in Instruction Number 8, in determining plaintiff’s

total damages you must not include those damages which

would not have occurred without such failure. If you find

plaintiff contributorily negligent as submitted in Instruction

Number 7, then your award must be determined by

diminishing plaintiff's total damages in proportion to the

amount of negligence attributable to plaintiff.

MAI 8.02 [1996 Revision]

Submitted by plaintiff Garry Giddens

36a

APPENDIX F

VERDICT

NOTE: Complete this form by writing in the name required

by your verdict.

On the claim of plaintiff Garry Giddens for personal

injuries against defendant Kansas City Southern Railway

Company, we, the undersigned jurors, find in favor of:

(Plaintiff Garry Giddens) or (Defendant Kansas City Southern Railway Company)

NOTE: Complete the following paragraph only if the above

finding is in favor of plaintiff Garry Giddens.

We, the undersigned jurors, assess the damages of plaintiff

Garry Giddens at $ (stating the amount).

NOTE: All jurors who agree to the above must sign below:

MAI 36.01 [1980 Revision]

Submitted by plaintiff Garry Giddens

37a

APPENDIX G

DEFENDANT’S INSTRUCTION CC

If you assess a percentage of fault to defendant in Verdict

A, then, disregarding any fault on the part of plaintiff, you

must determine the total amount of plaintiff’s damages to be

such sum as will fairly and justly compensate plaintiff for any

damages you believe he sustained and is reasonably certain to

sustain in the future as a result of the accident mentioned in

the evidence. Any award of future pecuniary damages must

be included at present value. Any award you make is not

subject to income tax. You must state the total amount of

plaintiff's damages in your verdict.

If you find that plaintiff failed to mitigate damages as

submitted in Instruction Number ___, in determining plain-

tiff’s total damages you must not include those damages

which would not have occurred without such failure.

In determining the total amount of plaintiff's damages you

must not reduce such damages by any percentage of fault you

may assess to plaintiff. The judge will compute plaintiff’s

recovery by reducing the amount you find as plaintiff’s total

damages by any percentage of fault you assess to plaintiff.

NOT IN MAI

MAI 8.02 [1996 Revision] modified by MAI 37.03 [1986

New] (modified)

Submitted by defendant The Kansas City Southern Railway

Company

38a

APPENDIX H

DEFENDANT’S INSTRUCTION EE

Note: Complete the following paragraph by filling in the

blanks as required by your verdict. If you assess a

percentage of fault to any of those listed below, write

in a percentage not greater than 100%, otherwise write

in “zero” next to that name. If you assess a percentage

of fault to any of those listed below, the total of such

percentages must be 100%.

On the claim of plaintiff Garry Giddens for personal injury

against defendant KCS, we, the undersigned jurors, assess

percentages of fault as follows:

Defendant KCS % (zero to 100 %)

Plaintiff Garry Giddens % (zero to 100 %)

TOTAL % (zero to 100 %)

Note: Complete the following paragraph if you assessed a

percentage of fault to defendant.

We, the undersigned jurors, find the total amount of

plaintiff’s damages for personal injury, disregarding any fault

on the part of plaintiff to be $ (stating the amount).

Note: The judge will reduce the total amount of plaintiff's

damages by any percentage of fault you assess to

plaintiff.

Note: All jurors who agree to the above must sign below.

NOT IN MAI

MAI 37.07 [1986 New] (modified)

Submitted by defendant The Kansas City Southern Railway

Company

39a

APPENDIX I

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

No. 480

EICHEL

¥;

NEW YORK CENTRAL RAILROAD Co.

Dec. 16, 1963.

PER CURIAM.

Petitioner, who had been employed by respondent New

York Central Railroad for 40 years, brought this action

against respondent under the Federal Employers’ Liability

Act, 35 Stat. 65, as amended, 45 U.S.C. § 51 et seq., in the

District Court for the Southern District of New York. The

complaint alleged that in 1960, as a result of respondent’s

negligence petitioner suffered a permanently disabling injury.

The jury returned a verdict of $51,000 for petitioner and the

District Court entered judgment in accordance with that

verdict. Respondent offered evidence that petitioner was

receiving $190 a month in disability pension payments under

the Railroad Retirement Act of 1937, 50 Stat. 309, as

amended, 45 U.S.C. § 228b(a) 4.

This evidence was offered for the purpose of impeaching

the testimony of petitioner as to his motive for not returning

to work and as to the permanency of his injuries. The trial

court excluded the evidence in response to the objection of

petitioner’s counsel. The Court of Appeals for the Second

Circuit reversed, holding it prejudicial error to exclude the

evidence of the disability pension, and remanded “for a new

40a

trial, limited, however, to the issues of injury and resulting

damages * * *.” 2 Cir., 319 F.2d 12, 14. The court affirmed

the judgment as to the determination of negligence.” Ibid. We

grant certiorari and reverse the judgment of the Court of

Appeals.

Respondent does not dispute that it would be highly

improper for the disability pension payments to be considered

in mitigation of the damages suffered by petitioner. Thus it

has been recognized that:

“The Railroad Retirement Act is substantially a Social

Security Act for employees of common carriers. * * *

The benefits received under such a system of social

legislation are not directly attributable to the

contributions of the employer, so they cannot be

considered in mitigation of the damages caused by the

employer.” New York, N. H. & H.R. Co. v. Leary, | Cir.,

204 F.2d 461, 468, cert. denied, 346 U.S. 856, 74 S.Ct.

71, 98 L.Ed. 370.'

Respondent argues that the evidence of the disability

payments, although concededly inadmissible to offset or

mitigate damages, is admissible as bearing on the extent and

duration of the disability suffered by petitioner. At the trial

counsel for respondent argued that the pension would show

“a motive for [petitioner’s] not continuing work, and for his

deciding not to continue going back to work after the last

accident.” On the basis of this argument the Court of Appeals

concluded that the disputed evidence should have been

admitted because: “Its substantial probative value cannot

reasonably be said to be outweighed by the risk that it will

* * * create substantial danger of undue prejudice through

' See Sinovich v. Erie R. Co., 3 Cir., 230 F.2d 658, 661; Page v. St

louis S. Ray. Co., 5 Cir., 312 F.2d 84, 94. see also Gregory and Kalven,

Cases and Materials on Torts (1959), pp. 480-482; McCormick, Damages

(1935), p. 310 n. 2; Comment, 38 Mich.|.Rev.1073.

4la

being considered by the jury for the incompetent purpose of a

set-off against lost earnings.” 310 F.2d, at 20.

We disagree. In our view that likelihood of misuse by the

jury clearly outweighs the value of this evidence.” Insofar as

the evidence bears on the issue of malingering, there will

generally be other evidence having more probative value and

involving less likelihood of prejudice than the receipt of a

disability pension. Moreover, it would violate the spirit of the

federal statutes if the receipt of disability benefits under the

Railroad Retirement Act of 1937, 50 Stat.309, as amended 45

U.S.C. §228b(a) 4, were considered as evidence of

malingering by an employee asserting a claim under the

Federal Employers’ Liability Aci. We have recently had

occasion to be reminded that evidence of collateral benefits is

readily subject to misuse by a jury. Tipton v. Socony Mobil

Oil Co., Inc., 375 U.S. 34, 84 S.Ct. 1. It has long been

recognized that evidence showing that the defendant is

insured creates a substantial likelihood of misuse.* Similarly,

we must recognize that the petitioner’s receipt of collateral

social insurance benefits involves a substantial likelihood of

prejudicial impact. We hold therefore that the District Court

properly excluded the evidence of disability payments.

Accordingly, the judgment of the Court of Appeals is

reversed and the case remanded for proceedings consistent

with his opinion.

Reversed and remanded.

Mr. Justice DOUGLAS concurs in the result.

Mr. Justice HARLAN, concurring in part and dissenting in

part.

> Cf. McCormick, Evidence (1954), c. 19: 2 Wigmore, Evidence

(1940), § 282a.

* See Kalven. The Jury, the Law, and the Personal Injury Damage

Award, 19 Ohio St. LJ 158, 169.

See notes 1-3, supra.

42a

Once again I am obliged to record my view that certiorari

should not have been granted in a case of this kind, involving

only a question of the admissibility of evidence in a suit

under the Federal Employers’ Liability ACT, 35 Stat. 65, as

amended, 45 U.S.C. § 51. See my dissenting opinion in

Tipton v. Socony Mobil Oil Co., Inc., earlier this Term, 84

S.Ct, p.3.

On the merits, I agree with the majority that the judgment

below should be reversed, but for different reasons. Whether

or not evidence that the petitioner was receiving disability

pension payments under the Railroad Retirement Act of 1937

50 Stat. 307, as amended, 45 U.S.C. § 228a, should have been

admitted depends on a balance between its probative bearing

on the issue as to which it was offered, in this case the

respondent’s claim that petitioner was a malingerer, and the

possibility of prejudice to the petitioner resulting from the

jury’s consideration of the evidence on issues as to which it is

irrelevant. When a balance of this sort has to be struck, it

should, except in rare instances, be left to the discretion of the

trial judge, subject to review for abuse. See Uniform Rules of

Evidence, Rule 303. It is he who is in the best position to

weigh the relevant factors, such as the value of the disputed

evidence as compared with other proof adducible to the same

end and the effectiveness of limiting instructions. Believing

that this rule should have been followed here, I concur in

reversing the judgment below, which not only held the

evidence not inadmissible as a matter of law but also directed

its admission on retrial.

For the same reasons, however, I dissent from the

majority’s holding that the evidence is required to be

excluded. I see no reason why evidentiary questions should

be given different treatment when they arise in an F.E.L.A.

case than when they arise in other contexts

43a

APPENDIX J

§ 51. Liability of common carriers by railroad, In

Interstate or foreign commerce, for Injuries to

employees from negligence; employee defined

Every common carrier by railroad while engaging in

commerce between any of the several States or Territories, or

between any of the States and Territories, or between the

District of Columbia and any of the States or Territories, or

between the District of Columbia or 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, engines,

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 of 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 entitled to the benefits of this chapter.

(Apr. 22, 1908, c. 149, § 1, 35 Stat. 65; Aug. 11, 1939, c. 685,

§ 1, 53 Stat. 1404.)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.