Opposition Brief — Kansas City Southern Railway Co. v. Giddens

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No. 00-1286

In The

Supreme Court of the United States

THE KANSAS CITY SOUTHERN

RAILWAY COMPANY,

Petitioner,

GARRY V. GIDDENS,

Respondent.

On Petition For Writ Of Certiorari

To The Supreme Court Of Missouri

BRIEF FOR RESPONDENT IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

Patrick S. O’BrIEN

Newton G. McCoy, Of Counsel

(Counsel of Record)

C. MARSHALL FRIEDMAN, P.C.

1010 Market Street, Suite 1340

St. Louis, MO 63101

(314) 621-8400

Counsel for Respondent

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Whether KCS’s claim that it was entitled to a set-

off of Railroad Retirement disability payments is properly

before the Court when it was not presented to or decided

by the Missouri Supreme Court.

Whether the holding of Eichel v. New York Central R.

Co., 375 U.S 253 (1963), that Railroad Retirement disabil-

ity payments may not be set-off against an award of

damages in an FELA case, a matter of statutory construc-

tion of the FELA and the Railroad Retirement Act, should

be disturbed when Congress has not amended either

statute to provide for such a set-off and Eichel and the

authorities upon which it relied properly construed these

- statutes.

Whether the Missouri courts below erred in exclud-

ing evidence of Railroad Retirement disability payments

received by plaintiff under the standard established by

Eichel, and followed by Missouri caselaw, of determining

whether the probative value of the evidence of disability

payments is outweighed by the danger of prejudicial

effect on the jury.

2. Whether KCS’s Due Process and Equal Protection

Claims under the U.S. Constitution are properly before

the Court when the Missouri Supreme Court rejected

those claims on the basis of an independent and adequate

state ground of decision.

Whether the damage instruction and verdict form

used in this case, modeled on Missouri Approved Instruc-

tions, violated federal statutory or constitutional law,

QUESTIONS PRESENTED - Continued

under the FELA, the Due Process Clauses of the Fifth and

Fourteenth Amendments, the Equal Protection Clause of

the Fourteenth Amendment or the Supremacy Clause,

when they provided for the jury, rather than the judge, to

reduce damages in an FELA in proportion to contributory

negligence, in accordance with the plain language of 45

U.S.C. § 53, and when the damage instruction and verdict

form KCS claims should have been given require the

judge, rather than the jury, to reduce the damages, con-

trary to 45 U.S.C. § 53.

ili

TABLE OF CONTENTS

Page

i SPRUIIIOOOT TT CTEE ETT CTT Tee i

ee ee ee ee iii

PETES EEPEEETT CET ITT ECCT E CTT Vv

RRND PIO ovr rece ccc ccesteccsecesecseesccnt 1

ee ab hue kn seseesesaccseneds 1

Constitutional Provisions and Statutes Involved....

ee bata ekedevueucssceuewe

PURI osc cc ccc esc ccccccceseccessecsccscecess 4

KCS’s Claim That It Should Have Been Allowed A

Set-Off Based On Railroad Retirement Disability

Payments Is Not Properly Before This Court

Because It Was Not Presented To Or Decided By

The Missouri Supreme Court, And Is Without

Merit In Any Event. In Excluding Evidence Of

Such Disability Payments, The Missouri Courts

Properly Applied The Same Standard KCS Urges

This Court To Adopt, That Of Weighing Probative

Value Against Prejudicial Effect. No Error Has

SE Sse kc ceecccccccse Peadeesaneneanaaas nd 4

TABLE OF CONTENTS - Continued

Page

This Court Is Without Jurisdiction Of KCS’s Due

Process And Equal Protection Claims Because The

Judgment As To Those Issues Rests Upon An Inde-

pendent And Adequate State Ground Of Decision.

The Due Process Claim Is Also Without Merit As A

Matter Of Substance. KCS’s Equal Protection And

Supremacy Clause Claims Are Without Merit

Because The Missouri Instruction And Verdict

Form Requiring That The Jury, Rather Than The

Judge, Reduce Damages For Contributory Negli-

gence In An FELA Case, Conforms To The Explicit

Directive Of The Plain Language Of The Control-

ling Federal Statute, 45 U.S.C. § 53, Stating That

The. Damages “Shall Be Diminished By The

DU ee obec ns 004 bn ne tde een vanes bias eeaebes ane ae

RIN eae a Gacu. cue bog wale ea arnt uae

Appendix

Giddens v. Kansas City Southern Railway Co., 937

S.W.2d 300 (Mo.App.1996) (Giddens I)...... App.

ee ee re x ca eo 0s dene eae’ App.

et ia ee ran eeakec oe aed abusbiusee cual App.

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Adams v. Robertson, 520 U.S. 83 (1997)................ 5

Bankers Life and Casualty Co. v. Crenshaw, 486 U.S

FE URN 0c 0 06 awk R Ne ee hnns bee Cake eee koe 5, 19

Burlington Northern Railroad Co. v. Ford, 504 U.S.

OU SE on. Kees hud ceectun kin boasd cee 23, 28

Eichel v. New York Central R. Co., 375 U.S. 253

GRP = Sti vncodvenecase nis 4eb4e59554005000 40 passim

Enterprise Irrigation District v. Farmers Mutual

Lanes Ce, Dae Wi Bae CRDi acdc cccasacincasanes 21

Eustis v. Bolles, 150 US. 361 (1893).............5... au

Fox Film Corp. v. Muller, 296 U.S. 207 (1935) ........ 21

Gladden v. P. Henderson & Co., 385 F.2d 480 (3rd

Cir. 1967), cert. denied, 390 U.S. 1013 (1968) ....... 12

Green v. Denver & Rio Grand Western R. Co., 59 F.3d

1029 (10th Cir.), cert. denied, 516 U.S. 1009 (1995) .... 11

Griffin v. United States, 502 U.S. 46 (1991)........... 22

Here v. Pitcairn, 324 US. 117 (1945) ... ccc ccccccees 21

Herndon v. Georgia, 295 U.S. 441 (1935).............. 21

Illinois Brick Co. v. Illinois, 431 U.S. 736 (1977)...... ‘ 8

Lange v. Missouri Pacific R.R. Co., 703 F.2d 322 (8th

Cok De 54s hGnueeeber konsasntdas don peeeromsaes 12

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

gt ae | PP ree Terre re tr Ti Ter rere 17

TABLE OF AUTHORITIES — Continued

Page

Michigan v. Long, 463 U.S. 1032 (1983)............... 21

Murdock v. City of Memphis, 20 Wall. (U.S.) 590

PE co ttatéchechesshscenvansdssul cvaeeueueuedes 21

Murray's Lessee v. Hoboken Land & Improvement Co.,

OD FEW. S78 CURSE s cs cc ctcvccacsncsccssesscassage 22

New York, N.H. & H.R. Co. v. Leary, 204 F.2d 461

(1st Cir.), cert. denied, 346 U.S. 856 (1953) ..... 5, 6, 7

Rogers v. Missouri Pacific Railway Co., 352 U.S 500

SU 6 ck adh eseck eee ecssedbabeuanecuesaeveneesieee 29

St. Louis Southwestern Ry. v. Dickerson, 470 U.S. 410

SEE c6vsavnevse0bececexe advan eeal ie cee 29

Starks v. Rent-A-Center, 58 F.3d 358 (8th Cir. 1995) .... 20

Street v. New York, 394 U.S. 580 (1969) ............... 5

Topping v. CSX Transportation, 1 F.3d 260 (4th Cir.

NN bcs on ad ashw We 0 usbeeeuacds been eerassenaeeee 28

Webb v. Webb, 451 U.S 493 (1981) ................. 5, 19

Wilson v. Burlington Northern Railroad Co., 804 F.2d

COE GE ES oc 0.05 0.0.00.000006asbhndeeessae 28

STATE CASES

Giddens v. Kansas City Southern Railway Co., 29

S.W.3d 813 (Mo. banc 2000)............ 1, 3, 9, 18, 23

Giddens v. Kansas City Southern Railway Co., 937

S.W.2d 300 (Mo.App.1996) (Giddens I)......... passim

Gustafson v. Benda, 661 S.W.2d 11 (Mo. banc 1983) .... 24

Janke v. Duluth & Northeastern Railroad Co., 489

IN, W.2d S65 (MiRR.App.1992). oc cccccccccnccsccecs 27

Vii

TABLE OF AUTHORITIES - Continued

Kauzlarich v. Atchison, Topeka and Sante Fe Railway

Co., 910 S.W.2d 254 (Mo. banc 1995).............. 29

Martin v. McNeill, 957 S.W.2d 360 (Mo.App.1997) .... 22

Moore v. Missouri Pacific R. Co., 825 S.W.2d 839

Ce: ND. BOOE a 60.5 cdeeee nee ccask se aaneewhiaaer 9, 12

O’Ryan v. CSX Transportation, Inc., 626 N.E.2d 374

SD shun nek eincncstschcetstescenbeessas 28

Shiyr v. Pinckney, 896 S.W.2d 69 (Mo.App.1995)...... 22

St. Louis Southwestern Railway Co. v. Grider, 900

RONG CE CINE DOMED 2 6 eo secusdvassccsessensecacs 27

CONSTITUTIONAL PROVISIONS

Due Process Clause of the Fifth Amendment to the

U.S. Constitution, U.S. CONST., amend. V...18, 19, 20

Due Process Clause of the Fourteenth Amendment

to the U.S. Constitution, U.S. CONST., amend.

Ef eer 18, 19, 20

Equal Protection Clause of the Fourteenth

Amendment to the U.S. Constitution, U.S.

Ceres, GUNG, FEU © Bo cascccscatsccsses 9, 22,

Supremacy Clause of the U.S. Constitution U.S.

Gate: Gee Wie ME Misc ce seesesancceabecsaas 19, 28, 29

FEDERAL STATUTES

26 U.S.C. §§ 1500, 1520................. er see 7

i ee oe 1

Pe | ne 10

45 US.C. §§ 228c, 2280, 228p..........eeeeeeeeeeeees 7

Vii

TABLE OF AUTHORITIES - Continued

ee me he ee es 2

Railroad Retirement Act of 1937, 45 U.S.C. § 228a...5, 6

Section 3 of the Federal Employers’ Liability Act

(PELA), UB. § FD .nccacccccccccccscscass passim

Section 5 of the FELA, 45 U.S.C. § 55......... a

Court Rutes

Rule 51, Federal Rules of Civil Procedure........ 19, 20

Rule 403, Federal Rules of Evidence .......... 8, 13, 17

Rule 70.03, Missouri Rules of Civil Procedure... ..18, 20

Rule 83.09, Missouri Rules of Civil Procedure........ 3

OtTHER AUTHORITIES

MAI 8.02 and Committee Comment (1996), Mis-

souri Approved Instructions (MAI) (5th ed.

ON bKRbRApAdseNmevsecadac pins eeendd ane es 19, 23, 29

MAI, Chapter 37.01, Missouri Approved Instruc-

ee Pr Pe rr ee rere 24

Manual of Model Civil Jury Instructions for the

District Courts of the Eighth Circuit, Committee

Comments to Instruction 7.08, pp. 243-44 (1999) .... 25

]

TABLE OF AUTHORITIES - Continued

Page

Devitt, Blackmar & Wolff, FEDERAL JURY PRAC-

TICE AND INSTRUCTIONS: Civil §§ 94.18 &

a SS oe ea at ca adic acgk anton 26

9th Cir. Civ. Jury INSTR. 8.2.6 (1997) ............... 26

Arkansas Model Jury Instructions, Civil (AMI

Civil 3d) 1904 and 1913, pp. 205 and 215......... 27

Illinois Pattern Instructions, IPI (Civil) (1995),

8 SER AP rye yy rs PESTS Eee oe Eee 28

Pattern Instructions, Kansas, Civil 3d (PIK-Civil

ye BERR rey he ety AR gaan hel te ey ge ee 28

Uniform Comparative Fault Act (UCFA)............. 24

BRIEF FOR RESPONDENT IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

Respondent, Garry V. Giddens (hereinafter “Gid-

dens” or “plaintiff”), respectfully requests that the Court

deny the Petition for a Writ of Certiorari filed herein by

Petitioner Kansas City Southern Railway Company (here-

inafter “KCS” or “defendant”).

OPINIONS BELOW

The opinion of the Missouri Supreme Court, en banc,

in this case is reported at 29 S.W.3d 813. It is reproduced

in the Petition, in Appendix A to the Petition. Because the

opinion of the Missouri Supreme Court ruled one of the

issues in part on the basis of the law of the case, the

opinion in the prior appeal, Giddens v. Kansas City South-

ern Railway Co., 937 S.W.3d 300 (Mo.App.1996) (“Giddens

I"), is reproduced in the Appendix to this Brief For

Respondent In Opposition to Petition for Writ of Cer-

tiorari.

JURISDICTIONAL STATEMENT

KCS invokes the jurisdiction of this Court pursuant

to 28 U.S.C. § 1257(a). As will be set forth below, plaintiff

Giddens submits that this Court is without jurisdiction of

certain of the questions KCS seeks to present because the

judgment of the Missouri Supreme Court on these points

rests upon an independent and adequate state ground of

decision. Plaintiff agrees that the Petition was filed within

ninety (90) days of the denial of KCS’s Motion for Rehear-

ing in the Missouri Supreme Court.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

In addition to those provisions mentioned in the

Petition, plaintiff Giddens submits that the Petition |

herein also involves the provisions of Section 3 of the

Federal Employers’ Liability Act (FELA), 45 U.S.C. § 53,

which provides that contributory negligence will not bar

recovery in an FELA case but that “the damages shall be

diminished by the jury in proportion to the amount of

negligence attributable” to the employee. (emphasis sup-

plied). It also involves Section 5 of the FELA, 45 U.S.C.

§ 55, which defines and limits the set-offs which may be

allowed in an FELA case. The full text of these statutory

provisions is set forth in the Appendix.

smh 4

STATEMENT OF THE CASE

Petitioner KCS has filed a Petition for Writ of Cer-

tiorari seeking review of the decision of the Missouri

Supreme Court, en banc, affirming a judgment in favor of

Respondent Garry V. Giddens, in an action under the

FELA, 45 U.S.C. § 51, et seq., for severe personal injuries

sustained by plaintiff during the course of his employ-

ment by KCS. Plaintiff was 44 years of age at the time of

the most recent trial, and is now 47. He has only a 12th

grade education. Prior to his injury in May, 1989, he had :

worked for KCS since April, 1973, and was a working

foreman at the time of his injury. This was the third time )

this case has been tried to a jury. In each of the three trials

the jury has returned a verdict in favor of plaintiff Gid-

dens and against KCS on liability. The trial court ordered

a new trial after the first verdict in favor of plaintiff in the i

sum of $500,000, due to failure to give a mitigation of

damages instruction requested by KCS. Upon retrial, the

“oan NE

jury returned a verdict in favor of plaintiff in the sum of

$1,400,000. The trial court granted KCS’s motion for new

trial, based upon alleged impropriety in plaintiff’s jury

argument, and the trial court’s opinion that it had erred

in excluding evidence of Railroad Retirement disability

payments received by plaintiff. The Missouri Court of

Appeals affirmed the order granting KCS a new trial,

refusing to disturb the trial court’s discretionary finding

that parts:of plaintiff’s jury argument had been improper.

Giddens I, 937 S.W.2d 300 (Mo.App.1996). In Giddens I, the

Court of Appeals also held that the trial court had erred

in granting a new trial based upon its refusal to admit the

evidence offered by KCS of Railroad Retirement disability

payments, holding the trial court had properly excluded

that evidence in the first instance. Plaintiff’s application

for transfer to the Missouri Supreme Court, opposed by

KCS, was denied. Upon retrial, the jury returned a unani-

mous verdict in favor of Plaintiff in the amount of

$1,520,000. A panel of the Missouri Court of Appeals,

Western District, affirmed the judgment. The Missouri

Supreme Court granted KCS’s application to transfer the

case to the Missouri Supreme Court. The record and

briefs filed in the Court of Appeals were also the record

and briefs before the Supreme Court, which then resolved

the case “as if on original appeal.” Rule 83.09, Missouri

Rules of Civil Procedure. The Missouri Supreme Court

affirmed the judgment of the trial court. Giddens v. Kansas

City Southern Railway Co., 29 S.W.3d 813 (Mo. banc 2000).

KCS has now filed its Petition for Writ of Certiorari

seeking review of that decision.

ARGUMENT

KCS’s Claim That It Should Have Been Allowed A

Set-Off Based On Railroad Retirement Disability Pay-

ments Is Not Properly Before This Court Because It Was

Not Presented To Or Decided By The Missouri Supreme

Court, And Is Without Merit In Any Event. In Excluding

Evidence Of Such Disability Payments, The Missouri

Courts Properly Applied The Same Standard KCS Urges

This Court To Adopt, That Of Weighing Probative Value

Against Prejudicial Effect. No Error Has Been Shown.

As part of its first Question Presented, KCS asks this

Court to grant a writ of certiorari to consider whether

KCS should have been granted a set-off of Railroad

Retirement disability payments against the award of

damages in this case. KCS argues in this Court that it

should receive a set-off of $223,667. This is the amount of

the Railroad Retirement disability payments received by

plaintiff in the past and the present value of the amount

of Railroad Retirement disability payments KCS projects

plaintiff will receive in the future that KCS deems attribu-

table to its payments to the Railroad Retirement system.

However, this Court is without jurisdiction to con-

sider this question because it was not presented or

decided on appeal in the court below. KCS’s claims of

error on appeal, as set forth in its Points Relied On in its

appellate brief in the courts below, did not include any

claim that the trial court erred by not setting off the

damage award by Railroad Retirement disability pay-

ments, as it now urges in this Court. The Missouri Court

of Appeals, and the Missouri Supreme Court after trans-

fer, thus did not consider or decide any such claim of

alleged error. Nor was such a claim of alleged error raised

or decided in Giddens I.

To confer jurisdiction upon this Court, the issue must

have been presented in such a manner that it was neces-

sarily decided by the Missouri Supreme Court. “[W]hen,

as here, the highest state court has failed to pass upon a

federal question, it will be assumed that the omission was

due to want of proper presentation in the state courts,

unless the aggrieved party can affirmatively show the

contrary.” Street v. New York, 394 U.S. 580, 582 (1969). See

also Webb v. Webb, 451 U.S 493 (1981); Bankers Life and

Casualty Co. v. Crenshaw, 486 U.S 71 (1988); Adams v.

Robertson, 520 U.S. 83 (1997). No such showing can be

made by KCS in this case, because the claim was simply

not raised on appeal in the Missouri courts.

Additionally, review of this Court’s decision in Eichel

v. New York Central R. Co., 375 U.S. 253 (1963), and the

authorities relied upon by Eichel, make it clear that as a

matter of substance the petition for writ of certiorari

should not be granted on this issue. The Eichel opinion

could not state more clearly that Railroad Retirement

disability payments may not be used to offset or mitigate

damages. 375 U.S at 255. In so stating, this Court relied

upon and cited with approval the opinion of the First

Circuit in New York, N.H. & H.R. Co. v. Leary, 204 F.2d 461

(1st Cir.), cert. denied, 346 U.S. 856 (1953) Leary’s holding,

that Railroad Retirement disability benefits may not be

used to offset or mitigate damages, was based upon statu-

tory construction of Section 5 of the FELA, 45 U.S.C. § 55,

along with the Railroad Retirement Act.

45 U.S.C § 55 very specifically defines and limits the

set-offs that may be claimed by a defendant railroad in an

FELA action. It provides (emphasis supplied):

earn

Any contract, rule, regulation, or device

whatsoever, the purpose or intent of which shall

be to enable any common carrier to exempt

itself from any liability created by this chapter,

shall to that extent be void: Provided, That in

any action brought against any such common

carrier under or by virtue of any of the provi-

sions of this chapter, such common carrier may

set off therein any sum it has contributed or

paid to any insurance, relief benefit, or indem-

nity that may have been paid to the injured

employee or the person entitled thereto on

account of the injury or death for which said

action was brought.

The enumeration of these specific items which may

be set off in an FELA case implies the exclusion of any

other permissible set-offs. The structure of § 55 also

clearly indicates that no set-offs other than those enumer-

ated are permissible in FELA cases, because the set-offs

provided for in § 55 are listed only in a proviso to the

general provision of the statute that all devices exempt-

ing a railroad from liability under the FELA are void. The

holding of Leary, adopted by this Court in Eichel, was that

Railroad Retirement disability payments were not among

the set-offs that could lawfully be taken in an FELA case

within the meaning of § 55, and therefore no set-off was

permissible. The Leary court reasoned as follows:

Under § 55 of the Federal Employers’ Lia-

bility Act, 45 U.S.C.A. § 55, the defendant’s right

of set-off for certain contributions to employee

disability payments is limited to amounts paid

“on account of the injury or death for which

said action was brought.” The Railroad Retire-

ment Act of 1937, 45 U.S.C.A. § 228a et seq.

authorizes disability payments only for

employees who have reached sixty years of age

or have completed thirty years of service. We

think these age and service requirements for

disability payments remove these payments

from the coverage of § 55 of the Federal

Employers’ Liability Act. Accident indemnity

strictly speaking does not seem to be within the

Congressional intent disclosed in the Retirement

Act of 1937. Hetrick v. Reading Co., D.C.N.J.1941,

39 F.Supp. 22. Thus, this is not a set-off autho-

rized by § 55 because we think the retirement

fund is not an “insurance, relief benefit, or

indemnity” within the meaning of that section.

The Railroad Retirement Act is substantially a

Social Security Act for employees of common

carriers. The retirement fund is supported by

tax collections from the employer and employee,

26 U.S.C. §§ 1500, 1520, and to a limited extent

by the general public, 45 U.S.C.A. §§ 228c, 2280,

228p. 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 dam-

ages caused by the employer. See McCarthy v.

Palmer, 2 Cir., 1940, 113 F.2d 721, certiorari

denied, 1940, 311 U.S. 680, 61 S.Ct. 50, 85 L.Ed.

438.

New York, N.H. & H.R. Co. v. Leary, 204 F.2d 461, 467-68

(1st Cir.), cert. denied, 346 U.S. 856 (1953). It has been more

than 37 years since this Court adopted this construction

of § 55 and the Railroad Retirement Act. It is a construc-

tion that follows readily from the plain language used by

Congress in these statutes. Congress has not amended

either § 55 or the Railroad Retirement Act to allow rail-

road defendants to set-off Railroad Retirement disability

payments in FELA actions. KCS cites no case that has

held that such a set-off should be allowed. There is no

conflict among the federal or state courts on this point. If

Congress wished to allows such a set-off in the face of

this settled statutory construction, it could have amended

either § 55 or the Railroad Retirement Act to do so. It has

chosen not to so amend either statute. “[C]onsiderations

of stare decisis weigh heavily in the area of statutory

construction, where Congress is free to change this

Court’s interpretation of its legislation.” Illinois Brick Co.

v. Illinois, 431 U.S. 736 (1977). There is a “presumption of

adherence” to this Court’s prior decisions “concerning

legislative enactments.” Id. at 736-37. There is no reason

for the Court to re-examine this issue of statutory con-

struction. The writ should be denied.

In the remainder of its first Question Presented, KCS

asks this Court to review whether the trial court properly

sustained plaintiff's objections to admission of evidence

of the Railroad Retirement disability payments received

by plaintiff, when offered by KCS to prove that such

payments gave him a disincentive to mitigate his earn-

ings loss by finding employment because his earnings

might decrease his railroad retirement disability benefit.

KCS claims that there is a split between the circuits and

state supreme courts as to whether “there should be a per

se rule excluding 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 rules of evidence.” Petition at 8.

Rule 403 of the Federal Rules of Evidence provides for the

exclusion of evidence, even if logically relevant, “if its

probative value is substantially outweighed by the dan-

ger of unfair prejudice, confusion of the issues, or mis-

leading the jury.” It is most respectfully submitted that

the “conflict” KCS asks this Court to resolve is not pre-

sented by this case and is, in any event, for the most part

non-existent.

The Missouri Supreme Court addressed the merits of

this issue in part, stating that “as a general rule” evidence

a a

of Railroad Retirement disability payments is not admis-

sible in an FELA case “because its probative value is

outweighed by the potential prejudicial effect on the

jury,” and relying on Eichel. 29 S.W.3d at 824, Petition at

18a. It thus did not regard Eichel as establishing a per se

rule of inadmissibility. It did not address the argument

that the “door had been opened” to the admission of such

evidence, based upon the rule of the law of the case (29

S.W.3d at 824-825; Petition at 18a), since the issue of the

admissibility of the disability payments on this basis had

been resolved against KCS in Giddens I. The evidence

submitted by KCS to the trial court on retrial in support

of admission of disability payments, leading to the judg-

ment now before the Court, was identical to that in

Giddens I, because it consisted of reading portions of the

record from Giddens I and depositions previously read

during the earlier trial. Giddens I thus contains a fuller

explanation of the exclusion of the disability payments in

this case, and is reproduced in the Appendix to this Brief.

Giddens I, and the cases upon which it relied, did not

establish a per se rule of exclusion either. They recognize

that there may be circumstances under which such evi-

dence should be admitted because the probative value of

disability payments outweighs the prejudicial effect in

those cases. See, e.g., Moore v. Missouri Pacific R. Co., 825

S.W.2d 839, 842-43 (Mo. banc 1992) (affirming admission

of Railroad Retirement disability payments in an FELA

case).

This Court’s decision in Eichel did not establish a per

se rule of exclusion of Railroad Retirement disability pay-

ments. Indeed, although Eichel was decided before Rule

403 was adopted, Eichel analyzed the issue in terms

weighing probative value against prejudicial effect. Evi-

dence of the monthly Railroad Retirement disability pay-

ments 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,” 375

U.S. at 354, and to “show a motive for (petitioner’s) not

returning work and for his deciding not to go back to

work after the last accident.” 375 U.S. at 255-56. The

district court sustained an objection to this evidence but

the Court of Appeals reversed, holding the probative

value of the disability payments was not outweighed by

the “danger of undue prejudice through being considered

by the jury for the incompetent purpose of a set-off

against lost earnings.” 375 U.S. at 255. In reversing the

Court of Appeals, in effect approving the district court's

action in excluding the payments, this Court weighed

probative value against prejudicial effect and held:

We disagree. In our view the 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 Rail-

road 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 Act. 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 show-

ing that the defendant is insured creates a sub-

stantial likelihood of misuse. Similarly, we must

ee oe one ee |

recognize that the petitioner’s receipt of collat-

eral social insurance benefits involves a substan-

tial likelihood of prejudicial impact.

Eichel, 375 U.S. at 255 (footnotes omitted).

Contrary to KCS’s argument, Eichel’s holding that

Railroad Retirement disability payments could not be set-

off from the damages in an FELA case was not dicta. It

was a necessary predicate to the evidentiary holding that

the probative value of the evidence was outweighed by

its prejudicial effect. Green v. Denver & Rio Grand Western

R. Co., 59 F.3d 1029, 1033 (10th Cir.), cert. denied, 516 U.S.

1009 (1995). Part of the prejudicial effect recognized in

Eichel was the substantial likelihood of misuse of evi-

dence of disability payments as a set-off of damages for

lost earnings. The admission of such evidence may also

improperly influence the jury’s consideration of liability

issues. Green, 59 F.3d at 1033-34.

Eichel gave the lower courts very specific and direct

guidance about how probative value should be weighed

against prejudicial effect in the normal FELA case. It

clearly states that in the normal case in which the issue

arises, the probative value of disability payments will

most likely be outweighed by its prejudicial effect, when

offered as evidence of malingering or to establish a

motive for not working. The lower courts have followed

the guidance given by Ejichel, and have generally

excluded evidence of Railroad Retirement disability pay-

ments.

The lower courts, however, including Missouri courts

and specifically the Court of Appeals in Giddens I, have

also recognized exceptions to the general guidance given

by Eichel about how the probative value of disability

payments should be weighed against prejudicial effect.

One established exception is when the issue of the plain-

tiff’s financial status is injected into the case in such a

way as to suggest financial distress. See Moore v. Missouri

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

Gladden v. P. Henderson & Co., 385 F.2d 480 (3rd Cir. 1967),

cert. denied, 390 U.S. 1013 (1968); Lange v. Missouri Pacific

R.R. Co., 703 F.2d 322 (8th Cir. 1983). In such a case, the

court may properly conclude that the probative value of

the evidence of disability payments is not outweighed by

its prejudicial effect, and may allow admission of that

evidence. Thus, if a plaintiff simply makes a claim for

wage loss due to his injury, and presents evidence of his

efforts, if any, to mitigate his wage loss, application of

Eichel will generally result in the conclusion that disabil-

ity payments should not be admitted because the proba-

tive value is outweighed by prejudicial effect. But if a

plaintiff receiving Railroad Retirement disability pay-

ments goes beyond that, injecting his financial status into

the case in such a way as to suggest financial distress, the

railroad is entitled to rebut that suggestion by showing

the monthly disability payments. In Giddens I, the Court

of Appeals actually expanded this exception to the guid-

ance given by Eichel, stating that it was not limited to

cases in which the issue of financial distress is injected

into the case by plaintiff's own testimony, but also

included cases in which the issue was injected by another

witness. Giddens I, 937 S.W.2d at 304-305, App. 8-9.

In this case, KCS contends that the testimony of

plaintiff’s vocational rehabilitation expert, Dr. Samuel

Bernstein, opened the door to evidence of his disability

payments in this manner. In discussing, his recommenda-

tions for plaintiff’s vocational retraining or rehabilitation,

he testified that he felt plaintiff “was well motivated.” He

believed that plaintiff “wanted to do something with his |

life. He’s interested in working.” Giddens I, 937 S.W.2d at

304, App. 7. In Giddens I, the Court of Appeals held this

eee eT Oe ME Ie eT eT eo

testimony did not inject plaintiff’s financial status into

the case, or suggest financial distress, and did not open

the door to admission of disability payments. This testi-

mony on its face refers to plaintiff's psychological motive

for wanting to work, for wanting “to do something with

his life,” not to motivation based upon dire financial

distress. Giddens I held that the trial court had properly

excluded the evidence at trial in the first instance, and

that it had erred in later granting a new trial based on the

exclusion of the evidence of the disability payments. The

Missouri Supreme Court held this was the law of the

case. The basis for this result is clearly a determination

that on this record, and under Eichel, the probative effect

of the evidence of disability payments was outweighed

by its prejudicial effect in this case. Giddens I was explicit

in recognizing this was the key to analysis under Eichel,

stating that: “Eichel instructs that the relevancy of the

evidence is not the key issue but rather that it is the

balancing of unduly prejudicial evidence against its pro-

bative value.”Giddens I, 937 S.W.2d at 304, App. 6. It is

apparent this is the same basic principle contained in

Rule 403 of the Federal Rules of Evidence.

Because this is the same standard KCS asks this

Court to grant certiorari to apply, this case simply does

not present the issue of whether such a Rule 403 type

approach should be applied to evidence of Railroad

Retirement disability payments, in preference to a rule of

per se exclusion. In reality, KCS is asking this Court to re-

weigh probative value against prejudicial effect on the

facts of this case because it disagrees with the way the

Missouri courts performed this task.

KCS misrepresents and distorts the evidence in this

case in its effort to induce this Court to undertake this

task. KCS represents to this Court that in October 1992,

plaintiff “advised that he was no longer physically able to

do the job he had done in the past for the railroad.”

Petition at 5. It asserts this occurred because plaintiff

realized that he had enough service at that point that he

could stop working and qualify for Railroad Retirement

occupational disability with his accrued vacation time.

There is no evidence of any kind to support the latter

claim. And the first is completely contrary to the record.

The evidence at trial was that it was KCS that determined

that plaintiff would not be allowed to return to work in

October 1992, after it required him to be field tested for

his ability to do his job. The claim KCS makes to this

Court, that plaintiff “manipulated” the system to qualify

for Railroad Retirement occupational disability, rests on

these and other factually inaccurate statements in the

Petition.

Plaintiff was a foreman for KCS. KCS requires its

foremen to be working foremen. They must be able to

perform the same heavy manual labor as the men they

supervise. Plaintiff’s left hand was crushed when a chain

holding up a section of railroad track and a tie broke,

pinning his hand between the rail and another tie his

hand had been placed upon. The full weight of the rail

was on top of his hand for several minutes until it could

be freed.

After receiving emergency treatment, plaintiff was

referred by KCS to Dr. Ramey for treatment. Dr. Ramey

was his primary treating doctor. Plaintiff had the first of

eight surgeries on his hand at the end of May 1989. He

had further hand surgery in September 1989 and Febru-

ary 1990. Dr. Ramey released him to return to work at

KCS in May 1990, and he resumed work in June 1990,

after being examined and cleared by the KCS company

doctor. Clearance vy the KCS company doctor was

required by company procedure before he could return to

work. He worked until December 1990, when he took

some vacation prior to further surgery in January 1991.

He resumed work for KCS in May 1991 after again being

cleared by the company doctor. He was able to do his job

but had to have the men help him out. He continued until

shortly before he had another surgery with Dr. Ramey in

January 1992. Dr. Ramey then cleared him to return to

work with some restrictions.

But when the company doctor then examined him in

February 1992, the company doctor refused to clear him

to return to work, noting he was not physically qualified

to perform essential job duties, and that he was a “defi-

nite safety risk” when it came to lifting heavy objects and

performing fine movement with the left hand. He then

had additional surgery in April 1992, and also had an

infection that required him to be hospitalized. He had

another surgery in July 1992.

In late summer 1992, Dr. Ramey released plaintiff to

return to work with the same restrictions as to lifting

with his left hand, and use of vibrating tools and sledge

hammers that he had as of January 1992. KCS did not

then have plaintiff re-examined by a company doctor to

clear him for return to work, but nevertheless ordered

him to report for a field test, to evaluate his ability to

perform his duties. Under KCS procedures, once plaintiff

had been released by his doctor and cleared for duty by

the company doctor, KCS was entitled to require plaintiff

to pass such a test before returning him to service. When

plaintiff was unable to successfully complete the field

test, KCS refused to let plaintiff return to service. Plaintiff

was taken off the payroll on October 31, 1992 and was not

offered another position. This sequence of events was

described and reviewed in part by the Court of Appeals

in Giddens I. 937 S.W.2d at 302, App. 2-3.

Plaintiff has now had eight surgeries, had three hun-

dred and twenty stitches in his left hand and had eight

pins inserted in his fingers. The uncontroverted medical

testimony of Dr. Ramey and Dr. Romero indicated that

Plaintiff had a significant impairment of his left hand and

left upper extremity. Plaintiff cannot make a fist with his

left hand. Plaintiff cannot open his left hand flat.

Plaintiff was 44 years of age at the time of trial, and

has only a 12th grade education. Prior to his injury in

May, 1989, he had worked for the railroad since April 3,

1973, ever since he was 19 years of age. Dr. Samuel

Bernstein, a rehabilitation specialist, testified that plain-

tiff would be unable to do heavy work, or work requiring

grasping or climbing. He will be restricted to light and

sedentary work, and most such jobs require the use of

two_hands. The jobs he will able to do will be minimum

wage jobs, and, even if he finds such employment, he will

suffer periods of unemployment. Plaintiff has been medi-

cally disqualified from returning to work for KCS by

KCS’s own physicians because he would be a definite

safety risk when it comes to lifting heavy objects and

performing fine motor movements with his left hand. As

of the time of trial, plaintiff had unsuccessfully submitted

more than 60 applications for employment.

It is apparent that plaintiff’s time off work was neces-

sitated by his injuries and multiple surgeries. He returned

to work whenever his treating doctor, who had been

selected by KCS, and the KCS company physician cleared

him to do so. His injuries were real and substantial. They

were not feigned. Plaintiff made no announcement in

October 1992 that he could no longer physically do the

job he had done in the past. That determination was

made by KCS after the field test. And plaintiff did not

consult an attorney until he was taken off the payroll on

October 31, 1992. The timing of when all this occurred

was dictated by the scheduling of his surgeries, the opin-

ions of his treating doctor and the company doctor, and

the timing of KCS’s decision to field test him and remove

him from the payroll. There is certainly no support in the

record for the claim that plaintiff could control any of this

in order to “manipulate” the system.

In this regard, McGrath v. Consolidated Rail Corpora-

tion, 136 F.3d 838 (1st Cir. 1998), the primary case upon

which KCS relies, is factually distinguishable. In McGrath,

the railroad alleged plaintiff was feigning physical dis-

ability to avoid work and continue receiving disability

payments. In this case, there can be no possible claim that

plaintiff feigned his injuries. And in this case, KCS’s own

company doctor has disqualified plaintiff from perform-

ing the duties of his railroad job. It is also questionable

whether McGrath gave due attention to Eichel’s guidance

in weighing probative value against prejudicial effect

under Rule 403. In this regard, it is interesting to note that

to date no subsequent decision has followed McGrath on

this point.

The Missouri courts below applied the same standard

KCS urges this Court to adopt, that of weighing the

probative value of evidence of disability payments

against its prejudicial effect. There has been no showing

that the Missouri courts below applied this standard

improperly in determining that such evidence was prop-

erly excluded in this case. The writ should be denied.

II.

This Court Is Without Jurisdiction Of KCS’s Due Pro-

cess And Equal Protection Claims Because The Judg-

ment As To Those Issues Rests Upon An Independent

And Adequate State Ground Of Decision. The Due Pro-

cess Claim Is Also Without Merit As A Matter Of Sub-

stance. KCS’s Equal Protection And Supremacy Clause

Claims Are Without Merit Because The Missouri

Instruction And Verdict Form Requiring That The Jury,

Rather Than The Judge, Reduce Damages For Contribu-

tory Negligence In An FELA Case, Conforms To The

Explicit Directive Of The Plain Language Of The Con-

trolling Federal Statute, 45 U.S.C. § 53, Stating That The

Damages “Shall Be Diminished By The Jury.”

KCS claims the damage instruction used in this case

to instruct the jury to reduce damages in proportion to

the contributory negligence attributed to plaintiff, if any,

and the verdict form, violated the Due Process Clauses of

the Fifth and Fourteenth Amendments to the United

States Constitution. This Court is without jurisdiction of

that claim because KCS failed to object the damage

instruction and verdict form given by the trial court on

due process grounds at trial. Nor did it object to the

refusal of its proffered damage instruction and verdict

form on due process grounds at trial. The Missouri

Supreme Court declined to address the merits of the due

process claim for that reason. 29 S.W.3d at 823; Petition at

16a. This constitutes an independent and adequate state

ground of decision that bars review in this Court.

Rule 73.03 of the Missouri Rules of Civil Procedure

provides in part that:

Counsel shall make specific objections to

instructions considered erroneous. No party

may assign as error the giving or failure to give

instructions unless that party objects thereto.

before the jury retires to consider its verdict,

stating distinctly the matter objected to and the

grounds of the objection.

The requirement of “stating distinctly the matter objected

to and the grounds of the objection” is the same as that

set forth in Rule 51 of the Federal Rules of Civil Pro-

cedure.

At trial, during the instruction conference, KCS

objected to the verdict directing instruction “because we

believe MAI unconstitutionally discriminates against rail-

roads by instructing in FELA cases differently than in

other similar comparative fault cases.” (T. 566). No speci-

fic provisions of either the Missouri or United States

constitutions were specifically mentioned. No specific

reference was made to Due Process, Equal Protection, or

the Supremacy Clauses of the U.S. Constitution. See Webb

v. Webb, 451 U.S. 493, 501 (1981) (to confer jurisdiction on

this Court at a minimum there should be no doubt that a

federal claim was presented in state court and that state

court was “apprised of the nature and substance of the

federal claim at the time and in the manner required by

state law”); Bankers Life and Casualty Co., 486 U.S. 71

(1988) (claim that punitive damage award “was clearly

excessive, not reasonably related to any legitimate pur-

pose, constitutes excessive fine, and violates constitu-

tional principles” insufficient to support consideration of

Contract Clause, Due Process or Eighth Amendment

claims in this Court).

The only objection made at trial by KCS to the dam-

age instruction, based on Missouri Approved Instructions

(MAI), MAI 8.02, was as follows:

Mr. Ray: The only objection defendant

would have would be that we think it ought to

be modified as per other comparative fault

cases.

The Court: In other words, to follow the

chapter 37 format?

Mr. Ray: Right. (T. 569)

The only objection to the verdict form was:

Mr. Ray: Yes, Your Honor. Once again, we

believe it ought to follow the pattern instruc-

tions set out in chapter 37 of MAI, as done in

other comparative fault cases. (T. 570).

These objections in no way referred to the concept of

due process. They certainly gave the trial court no intima-

tion of the argument KCS advanced on appeal, and now

makes in this Court: that the damage instruction and

verdict form violated KCS’s due process rights under the

Fifth and Fourteenth Amendments on the ground they

deny meaningful appellate review of the jury’s deter-

mination of contributory negligence and damages. As the

Missouri Supreme Court noted, in refusing to reach the

merits of the due process argument on appeal because it

had not been preserved, under Missouri law:

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.

29 S.W.3d at 823; Petition at 16a. Rule 51 of the Federal

Rules of Civil Procedure also requires that “[t]he grounds

of the objection must be specifically stated, and the error

claimed on appeal must be based on the same grounds

stated in the objection.” Starks v. Rent-A-Center, 58 F.3d

358, 361 (8th Cir. 1995). Rule 73.03 of the Missouri Rules

of Civil Procedure, like Rule 51 in the federal system,

serves a legitimate state interest in the proper and orderly

presentation of objections to instructions.!

Thus, the Missouri Supreme Court’s rejection of

KCS’s federal constitutional due process argument rests

upon an independent and adequate state ground of deci-

sion, and this Court is without jurisdiction to review the

due process arguments KCS raises in its Petition. E.g.,

Herb v. Pitcairn, 324 U.S. 117 (1945); Fox Film Corp. v.

Muller, 296 U.S. 207 (1935); Herndon v. Georgia, 295 U.S.

441 (1935); Enterprise Irrigation District v. Farmers Mutual

Canal Co., 243 U.S. 157 (1917); Eustis v. Bolles, 150 U.S. 361

(1893); Murdock v. City of Memphis, 20 Wall. (U.S.) 590

(1875). The adequacy and independence of the state

ground is evident from the face of the opinion of the

Missouri Supreme Court, and fully meets the test of

Michigan v. Long, 463 U.S. 1032, 1042 (1983).

Further, there is no merit to KCS’s due process argu-

ment. In effect, KCS argues that when there are disputes

as to factual issues the jury must resolve to reach its

damage award, a general verdict violates due process as a

matter of federal constitutional law. KCS cites no case

holding that general verdict in an FELA case involving

claims of contributory negligence violates due process.

Nor does KCS cite any case outside the FELA area hold-

ing that a general verdict in a case with factual disputes

relating to damages violates due process as a matter of

federal constitutional law. It cites no case holding a gen-

eral verdict violates due process because a general verdict

does not allow the court to check to see whether the jury

1 Prior to the effective date of the present Rule 70.03, in

1994, Missouri practice allowed a party to raise its specific

objections to instructions for the first time in its motion for new

trial, a provision that encouraged counsel to engage in

“sandbagging” of possible claims of instructional error at trial.

really followed the court’s instructions, or because a gen-

eral verdict does not include specific findings about spec-

ific factual issues, to aid to review of whether the damage

award is against the weight of the evidence. Indeed, such

a holding would appear to be an extraordinary and

unprecedented assertion of federal authority over state

practice, because KCS’s argument would logically require

such a holding to apply to general verdicts in causes of

action arising under state law, as well as those arising

under federal law. Nor does KCS cite any historical prac-

tice in support of its federal due process claim. See Griffin

v. United States, 502 U.S. 46, 51 (1991); Murray's Lessee v.

Hoboken Land & Improvement Co., 18 How. 272, 276-277

(1856). KCS’s due process claims are without merit.

The Missouri Supreme Court appears to have

accepted that KCS’s trial objection of unconstitutional

discrimination, as outlined above, was sufficient to

invoke equal protection principles. However, it also

determined that the manner in which KCS presented its

equal protection claim on appeal was insufficient to pre-

serve the issue under Missouri law. The argument portion

of KCS’s brief on appeal did not cite any equal protection

decision of this Court or any other court in support of its

argument. It did not make any reference to the standards

or tests used to apply the Equal Protection Clause of the

Fourteenth Amendment, much less explicitly apply the

applicable standards to explain how the damage instruc-

tion and verdict form are claimed to violate equal protec-

tion. Under well established Missouri practice, the failure

to cite relevant authority in the argument in support of a

point relied on, or to offer an explanation as to why such .

authority is unavailable, is deemed an abandonment of

the argument. E.g., Martin v. McNeill, 957 S.W.2d 360, 365,

366 (Mo.App.1997); Shiyr v. Pinckney, 896 S.W.2d 69, 71

(Mo.App.1995). The Missouri Supreme Court rejected

KCS’s equal protection argument on this ground, 29

S.W.3d at 823-24; Petition at 16a-17a. This, too, is an

independent and adequate state ground that bars review

in this Court.

KCS’s failure to cite or discuss any authority under

the Equal Protection Clause of the Fourteenth Amend-

ment is not surprising, because such a discussion would

have immediately revealed that its equal protection claim

is completely without merit.

This case does not involve any suspect classification

or fundamental right. There is no basis here for invoking

strict or intermediate level scrutiny in this case. There is

no basis for any heightened level of scrutiny at all.

Instead, the test of equal protection is whether the Mis-

souri FELA damage instruction and the verdict form in

‘this case fail to rationally further a legitimate state inter-

est. E.g., Burlington Northern Railroad Co. v. Ford, 504 U.S.

648, 651 (1992). If they may be understood to rationally

further a legitimate interest, the equal protection claim

must fail. Id.

The rationale for the MAI FELA damage instructions

and verdict form, as set forth in the Committee Comment,

easily meets this test, because the instruction, MAI 8.02, is

designed to conform to the explicit text of the FELA itself.

45 U.S.C. § 53, specifically states that “the fact that the

employee may have been guilty of contributory negli-

gence 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.”

The Committee Comments (1996 revision) to MAI

8.02, Missouri Approved Instructions, Civil (5th ed. 1996)

(MAI), at 103 explain that:

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. § 53, the jury diminishes dam- |

ages in proportion to the employee’s negligence.

Under Chapter 37.00, the jury determines the

total damages and plaintiff's percentage of fault

but the judge makes the actual computation

diminishing total damages to the amount recov-

erable by plaintiff.

(emphasis in original). MAI 8.02 and the MAI verdict

forms for FELA cases provide for the jury rather than the

judge to reduce the damages of the plaintiff in proportion

to the plaintiff's contributory negligence because the

explicit text of the statute states that this is a jury function

in an FELA case.

By contrast, negligence cases under Missouri sub-

stantive law are governed by comparative fault provi-

sions of the Uniform Comparative Fault Act (UCFA).

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

cially adopting UFCA, and abolishing contributory negli-

gence as a complete defense). Section 2 (a) of the UCFA

specifically requires the jury to make findings as to the

total amount of damages if contributory fault is disre-

garded, and the percentage of fault to be allocated to each !

party. Section 2 (c) of the UCFA then specifically requires

the court to reduce the award of damages based on the

findings made by the jury. See 661 S.W.2d at 38-39. The

damage instructions and verdict forms in Chapter 37.00

of MAI are based on these explicit requirements.

The damage instruction and verdict form KCS sub-

mitted to trial court were based on Chapter 37.00 of MAI,

and specifically directed the jury not to reduce the dam-

ages in proportion to contributory negligence. The dam-

age instruction submitted by KCS and refused by the trial

court thus stated in part (Defendant's Instruction CC,

Petition Appendix G, Petition at 37a) (emphasis sup-

plied):

In determining plaintiff's damages you must not

reduce such damages by any percentage of fault

you may assess to plaintiff. The judge will com-

pute plaintiff's recovery by reducing the amount you

find as plaintiff's total damages by any percentage of

fault you assess to plaintiff.

Similarly, the verdict form submitted by KCS and refused

by the trial court (Defendant's Instruction EE, Petition

Appendix H, Petition at 38a) (emphasis supplied) pro-

vided that: =

The judge will reduce the total amount of

plaintiff's damages by and percentage of fault

you assess to plaintiff.

As noted above, such a submission conflicts with the

plain language of 45 U.S.C. § 53, which provides “the

damages shall be diminished by the jury in proportion to

the amount of negligence attributable to such employee.”

(emphasis supplied).

KCS represents to the Court that no other state or

federal jurisdiction provides for the jury to make the

reduction in damages proportionate to plaintiff's contrib-

utory negligence and return a verdict for plaintiff’s net

damages in an FELA case, as Missouri does. That repre-

sentation is not accurate. Although the Eighth Circuit

model civil instructions adopt the approach suggested by

KCS, the Committee Comments specifically provide that

the district court may properly choose instead to instruct

in the same way as was done in this case (the jury is

instructed to reduce the damages and render a net

award), and recognizes that this method is supported by

the explicit plain language of 45 U.S.C. § 53. See Manual

of Model Civil Jury Instructions for the District Courts of

the Eighth Circuit, Committee Comments to Instruction

7.08, p. 243-44 (1999). In this regard, the Committee stated

(emphasis and ellipsis in original):

In cases in which the issue of contributory

negligence has been submitted to the jury, and

the jury has been instructed to make findings on

the issues of contributory negligence and dam-

ages, there is a question whether the jury or the

court should perform the computations which

reduce the total damages by the percentage of

contributory negligence found. The plain lan-

guage of 45 USC § 53 (1908) is that “the dam-

ages shall be diminished by the jury... ”

(emphasis added.) This Committee is not aware

of any case specifically prohibiting a form of

verdict which allows the jury to determine the

percentage of plaintiff’s negligence and permits

the court to perform the mathematical calcula-

tion. State jurisdictions such as Arkansas and

Missouri, and some federal courts, instruct the

jury to reduce the total damages awarded by the

percentage of contributory negligence before

rendering a general verdict for the reduced

amount of total damages. Wilson v. Burlington

Northern, Inc., 670 F.2d 780, 782-83 n. 1 (8th Cir.),

cert. denied, 457 U.S. 1120 (1982) (jury instructed

to perform contributory negligence reduction

computation and to return general verdict for

damage award in reduced amount); note 3

Edward J. Devitt, et al., FEDERAL JURY PRAC-

TICE AND INSTRUCTIONS: Civil §§ 94.18 &

94.21 (4th ed. 1987).

As the Committee Comment notes, Devitt, Blackmar &

Wolff, FEDERAL JURY PRACTICE AND INSTRUC-

TIONS: Civil §§ 94.18 & 94.21 (4th ed. 1987), provides for

the jury in an FELA case to reduce the damages in pro-

portion to contributory negligence and render a net ver-

dict. See also 9th Cir. Civ. Jury INSTR. 8.2.6 (1997) (jury

————

Se ee

instructed to reduce the damages for contributory negli-

gence, if any, in FELA cases).

Of the authorities cited by KCS in support of its

representation to this Court that no other state or federal

jurisdiction provides for the jury to reduce the damages

in an FELA case and render a net verdict (Petition at 26),

several simply do not support KCS’s claim in any way.

For instance, in Janke v. Duluth & Northeastern Railroad

Co., 489 N.W.2d 545 (Minn.App.1992), the trial court gave

a damage instruction telling the jury to reduce plaintiff's

damages in proportion to plaintiff’s contributory negli-

gence, based upon the language of 45 U.S.C. § 53. The

trial court also gave the jury a special verdict form calling

for a finding of total damages, and an apportionment of

fault between plaintiff and defendant. The special verdict

form told the jury to ignore contributory negligence in

assessing damages. The judgment was reversed and

remanded for a new trial on damages because the dam-

age instruction and special verdict form were in conflict.

In St. Louis Southwestern Railway Co. v. Grider, 900 S.W.2d

530 (Ark. 1995), plaintiff’s contributory negligence was

not even an issue. At most, that opinion reflected in

passing how fault was apportioned between a defendant

railroad in an FELA case and a third party tortfeasor

joined in the case based upon state law negligence, a

point that was not at issue on appeal. It did not address

in any way the manner in which damages are to be

reduced in an FELA case based on contributory negli-

gence or whether the jury or the judge is to perform the

reduction. On this point, see Arkansas Model Jury

Instructions, Civil (AMI Civil 3d) 1904 and 1913 at pp.

205 and 215 (in FELA case, the jury reduces the damages

and arrives at the net damages after reduction for con-

tributory negligence).

In other cases cited by KCS, the jury found a percent-

age of contributory negligence but it cannot be deter-

mined from the opinion whether the jury rendered a net

verdict or whether the judge reduced the damages, or it

appears that jury reduced the damages and rendered a

net verdict. E.g., Topping v. CSX Transportation, 1 F.3d 260

(4th Cir. 1993); Wilson v. Burlington Northern Railroad Co.,

804 F.2d 907 (10th Cir. 1986); O’Ryan v. CSX Transporta-

tion, Inc., 626 N.E.2d 374 (Ill.App.1993). The issue of how

the damages were to be reduced for contributory negli-

gence was not at issue in these cases. In fact, under

Illinois Pattern Instructions, the jury, and not the judge,

reduces the damages in proportion to the percentage of

contributory negligence attributed to plaintiff and ren-

ders a net verdict in FELA cases. IPI (Civil) 1995, 166.13.

KCS cites a case from Kansas, but it appears from Pattern

Instructions, Kansas, Civil 3d (PIK-Civil 3d) 132.31, that

in Kansas the jury, and not the judge, reduces the dam-

ages and determines the final net damage award.

Based upon the foregoing, it is evident that it cannot

be demonstrated that MAI lacks a rational basis for its

differing handling of reduction of damages for contribu-

tory negligence in FELA case and reduction of damages

based upon comparative fault in common law negligence

cases under state law. Burlington Northern Railroad Co. v.

Ford, 504 U.S. 648, 651 (1992). The rational basis is appar-

ent: it is the plain language of 45 U.S.C. § 53, which

differs on this point from the directives of the UCFA.

KCS’s equal protection argument is completely without

merit.

KCS’s Supremacy Clause argument must fail for the

same reason. When a federal cause of action, such as an

FELA case, is tried in a state court, federal law as to

matters of substance controls over state procedural rules.

See St. Louis Southwestern Ry. v. Dickerson, 470 U.S. 410,

411 (1985). If the generally applied state rule is not con-

sistent with the applicable federal law as to a matter of

substance, the court must treat the federal cause of action

differently than the state cause of action, by applying

federal law. The Missouri Supreme Court recognizes and

abides by this principle. See, e.g., Kauzlarich v. Atchison,

Topeka and Sante Fe Railway Co., 910 S.W.2d 254, 257-258

(Mo. banc 1995). The decisions of this Court make it clear

that the division between the respective functions, roles

and authority of the jury and the judge in FELA cases is a

matter of substance controlled by federal law. See, e.g.,

Rogers v. Missouri Pacific Railway Co., 352 U.S. 500 (1957).

When an FELA claim is tried in state court, the provisions

of 45 U.S.C § 53 mandate that contributory negligence

does not bar a recovery, but that “damages shall be

diminished by the jury in proportion to the amount of

negligence attributable to such employee.” When MAI

provides that jury, rather than the judge, diminishes the

damages, it thus conforms to the plain meaning of

explicit directive in the text of the controlling federal

statute that creates the cause of action. This does not

violate the Supremacy Clause. To the contrary, MAI 8.02’s

conformity to plain language of 45 U.S.C. § 53, in provid-

ing that the reduction in damages based upon contribu-

tory negligence will be made “by the jury,” illustrates its

fidelity to the principles of the Supremacy Clause.

The writ should be denied.

CONCLUSION

This case is not one appropriate for review by this

Court. As explained above, this Court is without jurisdic-

tion of a number of the issues Petitioner KCS seeks to

present. In addition to these jurisdictional issues, the

judgment of the Missouri Supreme Court is entirely in

accord with the applicable federal statutory and constitu-

tional law. Nothing has been shown to warrant review in

this Court. For all of the foregoing reasons, it is most

respectfully submitted and urged that the Petition for

Writ of Certiorari to the Missouri Supreme Court be

denied.

Respectfully submitted,

Patrick S. O'BRIEN

Newton G. McCoy, Of Counsel

(Counsel of Record)

C. MARSHALL FRIEDMAN, P.C.

1010 Market Street, Suite 1340

St. Louis, MO 63101

(314) 621-8400

Counsel for Respondent

App. 1

937 S.W.2d 300

Missouri Court of Appeals,

Western District.

Gary [sic] V. GIDDENS, Appellant,

KANSAS CITY SOUTHERN

RAILWAY COMPANY, Respondent.

No. WD 51568.

Nov. 26, 1996.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Jan. 28, 1997.

Application to Transfer Denied

Feb. 25, 1997.

Patrick O’Brien, St. Louis, for appellant.

Harland Burkhead, Kansas City, for respondent.

HANNA, Presiding Judge.

Plaintiff, Garry V. Giddens, brought this cause of

action, premised upon the Federal Employer’s Liability

Act, 45 U.S.C. § 51 et seq., for injuries he sustained on May

18, 1989, while working for the defendant as a mainte-

nance-of-way foreman. He appeals from the Circuit

Court’s order granting defendant Kansas City Southern

Railway Company’s Motion for New Trial.

On May 17, 1989, the plaintiff was dispatched to

check a railroad track for water damage due to heavy

rains, which had washed away the roadbed. On May 18,

1989, he was again called to assess further damage along

the right of way. On May 19, 1989, the plaintiff was

instructed to take his crew to milepost 612 to repair the

washout by building a box bridge structure under the

rails to hold them up. He was told to use the crane and

App. 2

caboose chains to lift the rails while the box bridge was

being built.

Upon arriving at milepost 612, the plaintiff was

instructed to supervise a backhoe operator and to place

the washed out mud and rock back into the washout. The

plaintiff and the crew were then to use the locomotive

crane to raise the tracks and place ties on top of the mud

and rock to support the track.

While repairing the tracks, the plaintiff was under a

raised rail assisting in placing ties to shim up the rail.

Because of the slope of the fill material, the plaintiff had

to prop himself up with his left hand while he guided the

ties in with his right hand. While the rails and ties were

in mid-air, the chain broke and they fell on the plaintiff’s

left hand. It took approximately six minutes to remove

the track and ties from the plaintiff’s hand.

The plaintiff sought emergency treatment and spent

the weekend in the hospital. The following Monday, the

plaintiff went to see a physician, selected by the defen-

dant, who specialized ir the treatment of hands. Between

1989 and 1992, the plaintiff underwent seven surgical

procedures, primarily on the long and ring fingers, to

restore function to his left hand.

The plaintiff received treatment and did not work

from the time of the accident until June 1990. He then

worked until December 1990, at which time he took off

until May 1991 for further treatment. He then returned to

work until December 1991. He did not work for the

railroad thereafter.

App. 3

In February 1992, a company doctor examined the

plaintiff for fitness for duty and medically disqualified

him from performing his previous job on the railroad. In

September 1992, the surgeon who operated on the plain-

tiff’s hand advised the defendant’s Division Engineer

that the plaintiff was restricted from lifting anything over

ten pounds with his left hand and was prohibited from

using vibrating tools and sledge hammer.

The defendant had the plaintiff undergo a field test,

which he was unable to successfully complete. Plaintiff

was taken off the payroll on October 31, 1992, and was

not offered another position.

Between the time of the original accident in 1989 and

the plaintiff’s last absence in October 1992, he received

his regular wages under the defendant’s wage continua-

tion program, and he continued to accrue credited

months towards eligibility for the Railroad Retirement

Board disability pension. The first point on appeal con-

cerns the admission of the plaintiff's benefit payments

under the Railroad Retirement Act}.

1 The Railroad Retirement Board annuities are funded

partially by the employer and partially by the employee. Under

Tier Two, the employee pays 4.9 percent on his first $45,000 of

earnings and the employer pays 16.1 percent. Contributions to

the fund by both parties are mandatory. After 20 years of

credited service with the defendant, the employee qualifies for a

disability pension. The employee is limited to $400 per month

outside earnings; any earnings in excess decrease his $1,500

monthly pension dollar for dollar.

App. 4

When the case was first tried, the jury returned a

verdict of $500,000. The trial court sustained the defen-

dant’s motion for new trial on the ground that a mitiga-

tion instruction was not given. No appeal was taken. The

case was retried, and the jury returned a verdict in the

amount of $1,400,000 for the plaintiff. The court sustained

the defendant’s motion for new trial on two grounds,

which now have been briefed on appeal.

Defense counsel sought to introduce evidence of the

plaintiff’s disability payments. The trial court refused to

allow the plaintiff to be questioned about his pension

proceeds because it violated Eichel v. New York Cent. R.R.

Co., 375 U.S. 253, 84 S.Ct. 316, 11 L.Ed.2d 307 (1963). In

the defendant’s motion for new trial, defendant chal-

lenged the trial court’s decision to exclude, from the

jury’s consideration, the fact that the plaintiff had been

receiving, and would continue to receive, disability bene-

fits. The trial court reversed its decision excluding the

evidence, believing Moore v. Missouri Pac. R.R. Co., 825

S.W.2d 839 (Mo. banc 1992) to be the controlling case law.

The defendant maintains that the benefits paid by the

Railroad Retirement Board were not a “collateral source”

payment but were relevant to plaintiff's ability and incen-

tive to work and to his obligation to mitigate damages.

Further, the defendant argues that even if the evidence is

generally excludable, the plaintiff had “opened the door”

to its admission. Specifically, the defendant contends that

the plaintiff’s vocational rehabilitation expert, Dr. Samuel

Bernstein, invited introduction of the evidence when he

testified that the plaintiff was well-motivated to work.

Plaintiff maintains that the evidence of his benefits was

App. 5

not admissible under any set of facts because they consti-

tuted collateral source evidence.

On a motion for new trial, a trial court may recon-

sider its rulings on discretionary matters and may order a

new trial if the court believes its discretion was not

wisely exercised and that the losing party was thereby

prejudiced. State ex rel. Missouri Highway and Transp.

Comm'n v. Pedroley, 873 S.W.2d 949, 953 (Mo.App.1994).

While appellate courts are more liberal in upholding the

grant of a new trial than in denying it, the error com-

plained of still must be prejudicial to the party seeking

the new trial. VonSande v. VonSande, 858 S.W.2d 233, 236

(Mo.App.1993). The error complained of here is that the

evidence which was excluded would have been used to

rebut Dr. Berstein’s testimony.

However, the discretion accorded the trial court in

granting a motion for new trial presupposes a determina-

tion of fact, not law. Highfill v. Brown, 340 S.W.2d 656, 664

(Mo.1960). The trial court must not only be dissatisfied

with the verdict, but there must be some compelling

reason to warrant its dissatisfaction. Van Loon v. St. Joseph

Ry., Light, Heat & Power Co., 271 Mo. 209, 195 S.W. 737

(1917). The trial court’s discretion may not declare incom-

petent evidence to be admissible or competent evidence

to be inadmissible.

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

316, 11 L.Ed.2d 307 (1963), is the seminal case on the issue

of the admissibility of disability payments. In Eichel, the

Supreme Court held that evidence of the plaintiff's

receipt of disability pension payments under the Railroad

App. 6

Retirement Act should not have been received into evi-

dence. Id., 375 U.S. at 254-55, 84 S.Ct. at 317. In so finding,

the Court stated:

At the trial, counsel for respondent argued that

the pension would show “a motive for [peti-

tioner’s] not continuing work, and for his decid-

ing 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 reason-

ably be said to be outweighed by the risk that it

will .. . create substantial danger of undue

prejudice through being considered by the jury

for the incompetent purpose of a set-off against

lost earnings.” We disagree. In our view the

likelihood of misuse by the jury clearly out-

weighs 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 likeli-

hood of prejudice than the receipt of a disability

pension.

Id. (footnote omitted).

Eichel instructs that the relevancy of the evidence is

not the key issue but rather that it is the balancing of

unduly prejudicial evidence against its probative value.

The court came down on the side of the potential harm

that may be caused by the introduction of this evidence

outweighing its probative value. The court held it is

improper for disability pension benefits to be considered

by the jury in assessing mitigation of damages or to show

malingering. In Moore v. Missouri Pac. R.R. Co., 825 S.W.2d

App. 7

839, 842 (Mo. banc 1992), the court acknowledged and

followed the principle of Eichel.

The defendant maintains that the rule set forth in

Eichel is not absolute and that Dr. Bernstein’s testimony

opened the door to rebuttal evidence of the plaintiff's

pension benefits. At trial, Dr. Bernstein was asked what

recommendations he had for vocational retraining or

rehabilitation of the plaintiff. He stated:

I felt [the plaintiff] was well motivated. That's

number one. Motivation is not a problem, as I

saw it, in this particular case.

+ £ * *+* + *

First, he can’t go back and do what he did.

That’s just that. Secondly, the man wants to do

something with his life. He’s interested in working.

+ £ * * + +

Because I felt that he was motivated and

because he’s motivated, I want to encourage him to

go — I told him to look.

The trial court held in its order granting the defen-

dant’s motion for new trial that Dr. Bernstein’s testimony

opened the door to evidence of the disability payments.

Specifically, the trial court stated:

[T]he disability payments create a reason for

plaintiff not to secure employment. Plaintiff

receives $1500 per month in disability pay-

ments. If he earns more than $400 per month the

disability payment is correspondingly reduced

.... Not working for that amount allowed him

to create the impression before this jury that he

had no income. This no doubt encouraged the

jury to award him substantial damages. .. .

App. 8

Some limited evidence about the disability pay-

ments should have been admitted to challenge

Dr. Bernstein’s comments about motivation.

The plaintiff first argues that a witness for the plain-

tiff cannot open the door, claiming that only the plaintiff,

and he alone, can raise the issue of hardship or financial

distress to permit introduction of the evidence of plain-

tiff’s retirement benefits. We have not located any author-

ity that suggests such a requirement. The plaintiff relies

primarily on Moore v. Missouri Pac. R.R. Co. for this argu-

ment. Contrary to his assertion, Moore does not restrict

the introduction of the rebuttal evidence to those times

when the plaintiff himself raises the issue of his dire

financial condition. The court in Moore observed that

“[t]here is no functional distinction between the plaintiff

injecting his dire financial condition on direct examina-

tion or on cross-examination.” Moore, 825 S.W.2d at 842.

Actually, Moore expanded the admissibility of the rebuttal

evidence to the situation when the plaintiff opens the

door by testifying to his dire financial condition on cross-

examination. Id. at 842-43. Importantly, the court stated

that “it is the raising of plaintiff’s financial condition with

the jury” that permits the defendant to rebut with evi-

dence of other financial assistance available to the plain-

tiff, irrespective of whether the evidence is injected

purposefully or through inadvertence. Id. at 843. The

plaintiff therefore cannot circumvent the rule by offering

testimony of his financial hardship through an expert

instead of by his own testimony. We are not persuaded

that only the plaintiff himself may open the door to this

rebuttal evidence. The plaintiff invites such evidence if

his expert witness testifies to plaintiff’s financial distress.

App. 9

The admission of the disability and retirement benefits is

dependent on the direct testimony of plaintiff's adverse

financial condition and not upon which witness offers the

testimony.

The defendant correctly argues that there are excep-

tions to the rule set forth in Eichel. Gladden v. P. Henderson

& Co., 385 F.2d 480, 483-84 (3rd Cir.1967), cert. denied, 390

U.S. 1013, 88 S.Ct. 1262, 20 L.Ed.2d 162 (1968), and Lange

v. Missouri Pac. R.R. Co., 703 F.2d 322, 324 (8th Cir.1983),

both determined that an exception to Eichel’s general rule

of inadmissibility existed in those situations where the

plaintiff injects his financial condition into the lawsuit. In

Gladden, the plaintiff testified that “my bills got behind

and when I went back to work, that was one of the main

reasons I went back to work, was to try to catch my bills

up and support my family.” Gladden, 385 F.2d at 482. The

court found that the defendant was not required to leave

this testimony unchallenged. Id. at 483-84. Likewise in

Lange, the court permitted the defendant to rebut the

plaintiff’s testimony that he had to return to work imme-

diately after back surgery because he had no savings or

disability income with evidence that he had settled a

workers’ compensation claim for a lump sum payment.

Lange, 703 F.2d at 323-24.

In Moore v. Missouri Pac. R.R. Co., 825 S.W.2d 839, 842

(Mo. banc 1992), the Missouri Supreme Court relied on

Gladden and Lange in recognizing an exception to Eichel’’s

general rule of inadmissibility. In Moore, the plaintiff

testified on cross-examination that he could not go back

to a therapist because he could not afford it. Id. at 842.

The court therefore permitted the defendant to challenge

App. 10

this testimony by inquiring about the plaintiff's collateral

source payments. Id.

If the plaintiff injects his financial condition into the

proceedings and implies financial distress, the defendant -

may challenge this evidence by showing that the plaintiff

had financial assistance available. Moore, 825 S.W.2d at

843. Here, Dr. Bernstein testified about the plaintiff’s

motivation to work. The plaintiff’s evidence here was not

similar to Moore’s testimony that he could not continue

his therapy because he could not afford it, id. at 842, or an

employee claiming he was forced to return to work

immediately after surgery because he had no money,

Lange, 703 F.2d at 323-24, or the employee's testimony

that he was behind in his bills and had to go back to work

to catch up on his bills and support his family, Gladden,

385 F.2d at 482. In these cases, the plaintiff's evidence

directly injected the financial situation into the case,

thereby allowing the admission of collateral source evi-

dence to challenge it. The plaintiff’s evidence here did

not suggest financial distress for the purpose of appeal-

ing for jury sympathy or to increase the jury’s award of

damages. See Mateer v. Union Pac. Sys., 873 S.W.2d 239,

245 (Mo.App.1993). In fact, being well motivated to work

falls far short of the mark of the requirements of Moore

that there be evidence of plaintiff’s financial state

designed to evoke sympathy from the jury. See Moore, 825

S.W.2d at 843. The trial court properly excluded the evi-

dence, and its exclusion cannot be a point of error on

which to grant a new trial.

The trial court granted the defendant a new trial on

the alternative ground that plaintiff’s closing argument

was improper. The plaintiff raises a number of points in

App. 11

defense of his closing argument. First, he maintains that

the defendant failed to object to the alleged improper

arguments as a choice of trial strategy and should not be

allowed plain error review. He also contends that the trial

court held, in its order granting a new trial, that the jury

award was not excessive, thereby negating any basis for

the new trial. Finally, he contends that his closing argu-

ment consisted of proper comments on the evidence or

permissible inferences drawn from the evidence and fair

retorts to contentions made by the defendant.

In his motion for new trial, the defendant claimed

that plaintiff’s closing argument violated Rules 3.3 and

3.4 of the Missouri Rules of Professional Conduct and the

trial court’s rulings on defendant’s pretrial motions in

limine, which dealt with the Americans With Disabilities

Act and the discharge and accommodations of the plain-

tiff. The defendant contended that these violations incited

the bias and prejudice of the jury as evidenced by the

excessive damage award to the plaintiff.

Although the defendant failed to object to the plain-

tiff’s closing argument, the point of error was preserved

in its motion for new trial. Following arguments, the trial

court ordered a new trial on this alternative point, stat-

ing: ‘

Defendant is also entitled to a new trial due to

the closing argument of plaintiff. That argument

taken as a whole exceeds the bounds of propri-

ety. It attacks opposing counsel and suggests he

has no interest in the truth. It improperly sug-

gests that the plaintiff risked being fired for

completing the washout repair in another way.

It discusses kicking plaintiff off the railroad to

App. 12

create animosity toward the defendant. The

argument is designed to inflame the jury.

Apparently, it worked. Within one hour the jury

returned a 1.4 million dollar verdict without

requesting any of the exhibits.

Plaintiff directs our first inquiry to defense counsel's

failure to object. Plaintiff properly points out that an

objection would have permitted the trial court to take

corrective action by its ruling, instructions to counsel or

the jury, or both. Further, he contends, an objection and

the court’s ruling would have allowed him to correct his

argument. Plaintiff’s argument is not without merit. It

points out the significance of timely objections as well as

the hazards of plain error review. We are certain that

these factors were not lost on the trial court which con-

sidered them, among others, when it decided the motion

pursuant to the plain error rule. While the plaintiff’s

contention must be given serious consideration by the

trial court, we are presented with another, equally sound

proposition of law, which is that each case must be

decided on its own facts. The motion for new trial enables

the trial court to consider its rulings in a more reflective

atmosphere. Farley v. Johnny Londoff Chevrolet, Inc., 673

S.W.2d 800, 804 (Mo.App.1984).

Further, Rule 78.08 permits the trial court to review

post trial matters, which affect substantial rights, pur-

suant to plain error, when the court finds that a manifest

injustice or miscarriage of justice has resulted. The review

is accomplished by the trial judge, who occupies a far

better position than this court to fairly determine the

effects of unobjected argument, evidence, or court

instructions on the jury’s verdict.

eee ee ee —

App. 13

There is ample authority for the trial court to grant a

new trial because of counsel’s improper argument even

though there was no objection to the argument. In Green-

well v. Huffman, 506 S.W.2d 28, 31 (Mo.App.1974)(citing

Robbins v. Brown-Strauss Corp., 363 Mo. 1157, 257 S.W.2d

643 (1953)), the court stated:

The trial judge was in an excellent position to

gauge the effect of the improper and objection-

able argument, and, if he deemed the overall

effect to have been so prejudicial as to deprive

plaintiff of a fair and impartial trial as he

undoubtedly did, he had the duty to cause the

entry of the new trial order, although no objec-

tion had been made to such argument.

Id. at 31 (emphasis in original) (Robbins, 257 S.W.2d at

648). See also Beer v. Martel, 332 Mo. 53, 55 S.W.2d 482,

484 (1932). Our case law holds that, not only does the trial

court have the authority to grant a new trial, it has the

duty to do so when the effect of the argument was so

prejudicial that a party did not receive a fair trial. This

points out a meaningful distinction between the denial

and grant of a new trial. “On appeal, when a party claims

error because the trial court denied him a new trial, the

party ordinarily must have made a proper and timely

objection to the claimed error to preserve it for

review. ...” Farley v. Johnny Londoff Chevrolet, Inc., 673

S.W.2d 800, 804 (Mo.App.1984). When a party claims

error, as here, because the trial court granted the oppo-

sing party a new trial, the opposing party need not have

made an objection to the error upon which the trial court

granted a new trial. Id. We defer to the trial court’s

discretion granted in Rule 78.08 to review for plain error

affecting substantial rights.

App. 14

Next, the plaintiff contends that the trial court held

the verdict not to be excessive and this showed that the

jury was not moved by bias, passion or prejudice. The

plaintiff asserts that the trial court’s express finding that

the jury verdict of $1.4 million was not excessive is incon-

sistent with a finding of prejudice. In support of his

argument, the plaintiff cites to both a passage in the trial

court’s order granting the defendant’s motion for new

trial, wherein the court acknowledged that the plaintiff

was severely injured, and the court’s cover letter accom-

panying the order, wherein the court stated that there

was no doubt that a jury would return a substantial

verdict each time the case was tried.

A trial court’s ruling on a motion for a new trial is

not required to set forth its reasons for the conclusion

reached or the mental process by which the determina-

tion was made, Resco Constr. Co. v. Dawson Cabinet Co.,

656 S.W.2d 324, 326-27 (Mo.App.1983), and in those cases

when it does, its efforts should be considered as no more

than an attempt to explain the order to the parties and

their attorneys. Even in those cases where the court's

reasons or observations may appear inconsistent with its

ruling, the decision is conclusively presumed to have

been made on the ground stated in the order. Id.

In Bierman v. Langston, 304 S.W.2d 865, 867 (Mo.1957),

the order granting a new trial because of an excessive

verdict was unambiguous, but the memorandum accom-

panying the order stated a legal and non-discretionary

ground. The two reasons were at variance with each

other. The court held that the order allowing a new trial

was the only official repository for the court’s grounds or

for reasons for sustaining a motion for new trial, and that,

App. 15

in those situations where the order is unambiguous and

the memorandum countervails or disputes the order, the

memorandum does not constitute a substitute for the

order. Id.

An observation that plaintiff was severely injured

and that a jury will return a substantial verdict in another

trial are not necessarily inconsistent with a ruling that the

verdict is excessive. These remarks explained to the par-

ties and their attorneys that a jury verdict less than

$1,400,000 would still be substantial for the injuries that

the plaintiff sustained. A trial court’s explanation for its

ruling is a practice which should not be discouraged.

However, the trial court’s comments, obviously designed

to provide an explanation, cannot be used to misconstrue

its order.

However, whether the verdict was excessive is not

necessarily a controlling factor in determining whether

the closing argument was prejudicial. In Tune v. Synergy

Gas Corp., 883 S.W.2d 10, 16-17 (Mo. banc 1994), the trial

court allowed plaintiff to argue a specific dollar figure for

damages for the first time in the final portion of his

closing argument although no damage figure was men-

tioned in the initial part of his argument. Judge Thomas,

writing for a majority of the court, overruled prior case

law that held that the error was prejudicial only if the

damages were excessive. Id. at 21-22. The court noted that

the verdict of $2,850,000.00, even considering the plain-

tiff’s serious injuries, was very substantial and that it was

more reasonable to assume that the improper argument

contributed to an increase in the damages rather than to

assume the contrary, even though the increased verdict

may not be excessive. Id. at 22. However, it is usually

App. 16

impossible to determine whether or how much such an

erroneous argument may have contributed to the verdict.

Id. at 21. The court adopted the rule derived from Lester v.

Sayles, 850 S.W.2d 858 (Mo. banc 1993), “that the party

responsible for error relating to argument on the issue of

damages is charged with a rebuttable presumption that

the error was prejudicial.” Id. at 22. The holding places

upon the party who committed the error the respon-

sibility for rebutting the error’s prejudicial effect, irre-

spective of the size of the verdict.

The plaintiff’s final position is that there was no

impropriety in his closing arguments. The plaintiff argues

that his closing argument was based upon permissible

inferences reasonably drawn from the evidence and was a

fair retort to arguments asserted by the defendant. In

evaluating the plaintiff’s claims, we are cognizant of the

fact that the trial court is in the best position to appraise

the consequence of closing argument and that the appel-

late court may intervene only if it concludes that the trial

court abused that discretion. Hammer v. Waterhouse, 895

S.W.2d 95, 105 (Mo.App. 1995).

The trial court made its decision based on the overall

tenor of plaintiff’s closing argument. The court noted.

examples wherein the plaintiff’s counsel attacked oppo-

sing counsel by suggesting that he “had no interest in the

truth,” where he improperly suggested that the plaintiff

risked being fired for not repairing the washed out track

bed in the way suggested by the defendant, and where he

made an unjustifiable argument about the plaintiff’s ter-

mination with the purpose of creating animosity toward

the defendant. The court characterized the plaintiff’s

argument as designed to inflame the passions of the jury.

App. 17

The parties argue back and forth on this issue, plac-

ing their own spin on their respective positions as to each

other’s understanding of the argument: why the argu-

ment was based on the evidence, whether it was a fair

retort, and why it was no more or less than a malicious

attack on the defendant or its attorney. The plaintiff casts

his argument in neutral terms to suggest that there was

no intent to inflame the jury. On the other hand, the

defendant maintains that the plaintiff's only purpose was

to incite jury passion and bias.

The argument by plaintiff's counsel did make

repeated references to opposing counsel, including that:

(1) all of the defendant’s safety rules which had been

marked and placed in evidence were now opposing coun-

sel’s rules and that opposing counsel decided they had

been violated; and (2) that opposing counsel circum-

vented the truth when trying to explain away plaintiff’s

argument. Plaintiff’s counsel also made references to the

defendant that included: (1) that if an employee got hurt

at this company, its defense is that he broke a safety rule,

and if he can’t work, the company will fire him and the

employee should not look to it for compensation; (2) that

the company “could care less” about safety; and (3) a

personal opinion on the credibility of one of the defen-

dant’s witnesses. Plaintiff's counsel then stated the fol-

lowing:

I think there is a real strong inference here that

the railroad wanted to avoid the whole medical

question and stage this field test, brought him

back, failed him so they could run him right off

the railroad. They’re tired of paying his wage

continuation. They’re tired of paying them. If

App. 18

we can get rid of this guy who, for 20 years gave

us the sweat off his brow and didn’t give them a

moment’s problem. . .. He wasn’t good enough

for Kansas City Southern anymore. They got rid

of him. They didn’t accommodate him like peo-

ple are accommodated on other jobs with dis-

ability.

We believe that the trial judge was justified in its

determination that plaintiff’s closing argument was

unwarranted, untrue, and that the contentions noted

above were not fair retorts, fair comments on the evi-

dence, or reasonable inferences to be drawn therefrom.

These remarks were not on the merits of the case, but

rather were an attempt to inject hatred and prejudice

against opposing counsel and his client. Reckless asser-

tions by counsel, unwarranted by proof and intended to

arouse hatred or prejudice, are condemned as tending to

cause a miscarriage of justice. Critcher v. Rudy Fick, Inc.,

315 $.W.2d 421, 427 (Mo.1958). A charge against opposing

counsel is to be decried. See Tucker v. Kansas City S. Ry.

Co., 765 S.W.2d 308, 311 (Mo.App.1988).

We are mindful that counsel is afforded wide latitude

to argue the evidence and inferences drawn from the

evidence. “[T]he law indulges a liberal attitude toward

argument, particularly where the comment complained of

is fair retort or responds to prior argument of opposing

counsel.” Keith v. Burlington N. R.R. Co., 889 S.W.2d 911,

915-16 (Mo.App.1994). However, a vigorous closing argu-

ment must be directed to the facts, to the reasonable

inferences drawn therefrom, to fair retort to opposing

counsel’s argument, and to the law as applied to the

evidence.

ao ae

App. 19

The determination as to whether a new trial is war-

ranted because of jury argument rests within the trial

court’s sound discretion. Cook v. Cox, 478 S.W.2d 678, 682

(Mo.1972). Appellate review of such discretion is limited

to a determination of whether there has been an abuse of

that discretion. Id. Deference is given to the better posi-

tion of the trial judge to evaluate the prejudicial effect of

the overall tenor of the closing argument. The trial judge

heard the closing argument here and viewed it in its

entirety. The court concluded that the argument’s pur-

pose was to inject matters of an inflammatory nature

before the jury. The trial court’s award of a new trial

because of unwarranted and unjustified argument, was

not an abuse of discretion.

The defendant has raised other issues, which are

moot and we trust will be resolved on retrial.

Order granting a new trial is affirmed.

SMART and EDWIN H. SMITH, JJ., concur.

App. 20

45 U.S.C. § 53

§ 53. Contributory negligence; diminution of damages

In all actions on and after April 22, 1908 brought

against any such common carrier by railroad under or by

virtue of any of the provisions of this chapter to recover

damages for personal injuries to an employee, or where

such injuries have resulted in his death, the fact that the

employee may have been guilty of contributory negli-

gence 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: Provided, That

no such employee who may be injured or killed shall be

held to have been guilty of contributory negligence in

any case where the violation by such common carrier of

any statute enacted for the safety of employees contrib-

uted to the injury or death of such employee.

(Apr. 22, 1908, c. 149, § 3, 35 Stat. 66.)

45 U.S.C. § 55

§ 55. Contract, rule, regulation, or device exempting from

liability; set-off

Any contract, rule, regulation, or device whatsoever,

the purpose or intent of which shal! be to enable any

common carrier to exempt itself from any liability created

by this chapter, shall to that extent be void: Provided, That

in any action brought against any such common carrier

under or by virtue of any of the provisions of this chap-

ter, such common carrier may set off therein any sum it

ay pee ae ae en Eee rere

App. 21

has contributed or paid to any insurance, relief benefit, or

indemnity that may have been paid to the injured

employee or the person entitled thereto on account of the

injury or death for which said action was brought. is

(Apr. 22, 1908, c. 149, § 5, 35 Stat. 66.)

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.