Petition for Writ of Certiorari — Union Pacific Railroad Co. v. Hedgecorth (No. 06-1444)

e— , eo a & sia al - F) " ee oD Re ha Bam > os ee ‘

; Supreme Court, U.S.

; (-D FILED

061444 APR3 0 2007

No. —__OFFICE OF THE CLERK

In the

Supreme Court of the United States

UNION PACIFIC RAILROAD COMPANY,

Petitioner,

V.

TIMOTHY P. HEDGECORTH,

Respondent.

On Petition for a Writ of Certiorari

to the Missouri Court of Appeals

PETITION FOR WRIT OF CERTIORARI

JAMES W. Erwin

Counsel of Record

Tracy J. CowANn

KAREN M. VOLKMAN

THOMPSON COBURN LLP

One US Bank PLAZA

St. Louis, Missour: 63101

(314) 552-6000

(314) 552-7000 fax

Counsel for Petitioner

Becker Gallagher - Cincinnati, OH - Washington, D.C. - 800.890.5001

7 Pree. ao 9 he «_ OB eee elClUe ——s Sn OO ae lle Oe ee

i

QUESTION PRESENTED FOR REVIEW

Whether a defendant in an action brought under the

Federal Employers’ Liability Act, 45 U.S.C. § 51 ef seq., in

which the plaintiff seeks damages for fear of cancer is entitled

to an instruction requiring the jury to find that the plaintiff's

alleged fear is genuine and serious.

il

PARTIES TO THE PROCEEDINGS

Pursuant to Supreme Court Rule 14.1, petitioner states

that all parties to the proceedings in the court whose judgment

is sought to be reviewed are listed in the caption.

iii

RULE 29.6 STATEMENT

Union Pacific Railroad Company is a wholly owned

subsidiary of Union Pacific Corporation and Southern Pacific

Rail Corporation. Southern Pacific Rail Corporation is a

wholly owned subsidiary of Union Pacific Corporation.

Dodge & Cox is the only publicly held company that owns ten

percent or more of the stock of Union Pacific Corporation.

iV

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW .......... i

PARTIES TO THE PROCEEDINGS ............ ii

ob She BB ae ty 2) ar arr eee ill

We Te TPE kk ec ck eta hae eee iv

py Re OM Ae 8 6g reir vi

Se era 6 sc ks oa ae a ee ates ]

OI oj he oe ce ee Oe ee es l

STATUTES OR OTHER PROVISIONS INVOLVED . 1

BV AT GETS GF BEE CA 6k cece teens 2

A: DEMOTY TRV ow ww i ews 3

es Paes I og ee ee eee ta es a

CC PN i oe hh wee eS ee es 6

REASONS FOR GRANTING THE WRIT ......... 9

I. THE MISSOURI COURTS MAY NOT DISREGARD

THIS COURT’S REQUIREMENT THAT THE

INSTRUCTIONS IN A FELA ACTION MUST

REFLECT FEDERAL SUBSTANTIVE LAW .... 10

a aoe kre Ba ee alee Woe ae Raat 17

APPENDIX

Appendix A: 1/30/07 Missouri Supreme Court

ore eae a ar ae en eae ere a ee la

hi ia gine aie hee os he oe, alae ened 3a

dg CU w Oo oe oe ee ee he eek ee ae Sa

Appendix D: 5/19/05 Missouri Circuit Court

Defendant Union Pacific Railroad Company’s Motion

for A New Trial Or, In The Alternative, Remittitur 20a

Appendix E: Missouri Circuit Court Judgment ... 74a

I Er ia a ea gg ag 77a

Appendix G: Instruction Number7 .......... 79a

Appendix H: Instruction Number9 .......... 80a

Appendix I: Instruction Number A ........... 8la

Appendix J: Instruction Number B ........... 83a

Appendix K: 4/11/05 Trial Transcript ......... 85a

PE Fst VG Ses PE ses ie es oe wes 88a

vi

TABLE OF AUTHORITIES

CASES

Amchem Products, Inc. v. Windsor,

ee ee oo os oa ba ew oe 16

Carey v. Piphus,

ee ee En eee ce eek eens 15

Chesapeake & Ohio Railway Company v. Kelly,

eR ee ee re eee 10, 15

Coffman v. Keene Corporation,

608 A.2d 416, 257 N.J.Super. 279 (1992) ....... 13

Consolidated Rail Corporation v. Gottshall,

SEF 0S Se ok vee si wees Beer Ere 3,9

Kauzlarich v. Atchison, Topeka and Santa Fe Railway

Company,

910 S.W.2d 254 (Mo.banc 1995) ............. 14

Metro-North Commuter Railroad Company v. Buckley,

ee At, LE ec ee ee ee eS %, 44, 12, 13

Monessen Southwestern Ry. Co. v. Morgan,

Sls SU SN 6 ae ee ee 4,9, 10, 11

New York Cent. R.R. v. Winfield,

ee Rd Ne EE 3 oo ak se ie Wd a ee 16

Norfolk & Western Railway Company v. Ayers,

SE SRP EE. ine ob on ee 6 a aaa ea passim

Vil

Patterson v. P.H.P. Healthcare Corp.,

Pere We COR: FIN ks BS 16

Seaford v. Norfolk southern Railway Company,

824 N.E.2d 94, 159 Ohio App.3d 374 (2004)

rev'd on other grounds 835 N.E.2d 717,

HUG GRR GA.O6 SIU CS 6 ks rr ee eS 14

Smith v. A.C. & S., Inc.,

are eee ee SOE kc cd Pee ek 13

St. Louis Southwestern Railway Company v. Dickerson,

sich cle ric So cake Saag EES EEE OIE OR Be passim

Urie v. Thompson, 337 U.S. 163 (1949) ........ passim

Vadie v. Miss. State Univ.,

2am Foe Pe GE, Dg ee ees 15, 16

STATUTES AND RULES

eR SUPE 6 6 oo 5 RANG RE 1

oe Le re rere we eer ae 15

a in bE eas os ee eee 3

OF ares EEO 0k ks a ke so Ae Oe ‘1,3

OSA a Oe nee ee hh eae eee 2

PET DURE 6c oko we oe eae ee 15

ee. See. GA Es Oe Ser een eee 8

CS ee 8

OTHER

ABA Commission on Asbestos Litigation Report to the House

of Delegates at 7 available at http://www.abanet.org/

leadership/recommendations03/302.pdf............ 16

The Asbestos Blob, Cont., Wall St. J., Apr. 6, 2004,

available at http://pqasb.pqarchiver.com/wsj/access/608896

l

PETITION FOR WRIT OF CERTIORARI

Petitioner Union Pacific Railroad Company (“Union

Pacific”) respectfully petitions for a writ of certiorari to

review the judgment of the Missouri Court of Appeals.

OPINIONS BELOW

The opinion of the Missouri Court of Appeals affirming

the judgment of the trial court is published at 210 S.W.3d 220

(Mo. Ct. App. 2006) and is reproduc€d in the Petition

Appendix (“Pet. App.”) at 5a-19a. The Missouri Court of

Appeals’ order denying rehearing and/or transfer to the

Missouri Supreme Court is reproduced at Pet. App. 3a-4a.

The order of the Missouri Supreme Court denying an

application for transfer from the Missouri Court of Appeals

is reproduced at Pet. App. la-2a.

JURISDICTION

The judgment of the Missouri Court of Appeals was

entered on August 22, 2006. Pet. App. 5a. The Missouri

Court of Appeals denied rehearing and transfer to the

Missouri Supreme Court on October 11, 2006. Pet. App. 3a-

4a. The Missouri Supreme Court denied transfer on January

30, 2007. Pet. App. la-2a. This Court has jurisdiction

pursuant to 28 U.S.C. § 1257(a).

STATUTES OR OTHER PROVISIONS INVOLVED

Relevant portions of the Federal Employers’ Liability Act,

45 U.S.C. § 51 et seq., are reproduced at Pet. App. 88a-89a.

Missouri Approved Jury Instructions (“MAI”) 8.02, 24.01,

37.01, and 37.03, as modified and given by the lower court,

are reproduced at Pet. App. 79a-80a.

2

STATEMENT OF THE CASE

State courts have jurisdiction, under the Federal

Employers Liability Act (*FELA”), 45 U.S.C. §§ 51-60,

over personal injury claims brought by railroad employees

against their employer. The state courts must apply the

common law “as established and applied in the federal courts”

in FELA cases. Urie v. Thompson, 337 U.S. 163, 174

(1949).

This Court, in Norfolk & Western Railway Company v.

Ayers, held that plaintiffs who had developed an asbestos-

related disease may recover damages for their alleged fear of

cancer, subject to “an important reservation” that the alleged

fear is “genuine and serious.” 538 U.S. 135, 141, 158

(2003). In response to concerns that there would be jury

speculation as to proper compensation for such damages, the

Court said that “verdict control devices. . . . [including] on

a defendant’s request, a charge that each plaintiff must prove

any alleged fear to be genuine and serious” will protect

railroad defendants against unlimited and unpredictable

liability. Jd. at 159 n.19.

Union Pacific sought just such a “verdict control device”

- a jury instruction that spelled out, in accordance with Ayers,

exactly what the jury had to find to award damages for fear of

cancer. The trial court refused the instruction because it was

not found in the Missouri pattern instructions. It subsequently

entered a $240,000 judgment against Union Pacific in favor

of the respondent, despite the paucity of evidence supporting

respondent’s fear of developing cancer. This ruling was in

direct conflict with this Court’s decisions, including its

decision prohibiting a state court from rejecting a proffered

jury instruction merely because it is not found in state-

approved instructions such as the MAI.

3

Certiorari is warranted because the Missouri court, in a

FELA action, resolved a question of substantive law in a way

that conflicts with relevant decisions of this Court.

Alternatively, the proper resolution of the question presented

is so plain, and the conflict with the Court’s precedent so

egregious, that summary reversal should be considered by the

Court.

A. Statutory Background

Congress enacted the FELA as a broad remedial statute to

provide relief for injured railroad workers who worked in

unsafe or hazardous conditions. Urie v. Thompson, 337 U.S.

at 181. “In order to further FELA’s humanitarian purposes,

Congress did away with several common-law tort defenses

that had effectively barred recovery by injured workers.”

Consolidated Rail Corporation v. Gottshall, 512 U.S. 532,

542 (1994). FELA, however, is not a worker’s compensation

statute. In fact, this Court has “insisted that FELA ‘does not

make the employer the insurer of the safety of his employees

while they are on duty.” Gottshall, 512 U.S. at 543.

Section 1 of FELA renders “[e]very common carrier by

railroad . . . liable in damages to any person suffering injury

while . . . employed by [the] carrier” if the “injury or death

resulted] in whole or in part from the carrier’s negligence.”

45 U.S.C. § 51. Absent express statutory departures, the

requisite elements of a FELA cause of action are determined

by the common law “as established and applied in the federal

courts.” Urie, 337 U.S. at 174. The scope of FELA “is a

federal question not varying in accordance with the differing

conceptions of negligence applicable under state and local

laws.” Jd. Uniformity under FELA is vital in light of the

wide latitude FELA plaintiffs have to select a forum in which

to bring suit. 45 U.S.C. § 56.

4

Federal substantive law governs on questions concerning

the measure of damages in FELA cases. See Monessen

Southwestern Ry. Co. v. Morgan, 486 U.S. 330, 335. The

well-settled rule is that “the propriety of jury instructions

concerning the measure of damages in an FELA action is an

issue of ‘substance’ determined by federal law.” St. Louis

Southwestern Railway Company v. Dickerson, 470 U.S. 409,

411 (1985).

B. Factual Background

Respondent Timothy Hedgecorth (“Hedgecorth”) worked

as a Clerk for Union Pacific. Trial Transcript (“Tr.”) 172-

79, 181. He worked at the railroad’s headquarters building

located in St. Louis, Missouri until being transferred to

Omaha, Nebraska. /d. at 173-84.

He never experienced any symptoms of an asbestos-

related disease. /d. at 700; L.F. 619-21, 626; S.L.F. 31.!

Nevertheless, he participated in an attorney-sponsored

screening for asbestos-related diseases. Tr. 143, 195-96. He

was notified that he had asbestosis. /d. at 196. His attorney

referred him to a pulmonary specialist, Dr. Jill Ohar, for

further evaluation. Tr. 196-97, 227-28. He told the specialist

and testified at trial that he believed.he had been exposed to

asbestos while working in the St. Louis office building. Tr.

197; S.L.F. 14. Dr. Ohar told Hedgecorth he had “very

mild” asbestosis, and described the health problems, including

cancer, that are associated with asbestos exposure. Tr. 198-

99; S.L.F. 17, 19-20, 38. He claims her mention of cancer

' “LF” citations are to the “Legal File” and “S.L.F.” citations are

to the “Supplemental Legal File” submitted to the Missouri Court

of Appeals, which contains excerpts of the trial record.

5

“knocked [him] off his feet” because “cancer is a scary

word.” Tr. 199.

In 2000 or 2001, Hedgecorth learned that he had a tumor

in his back, which was diagnosed as a myxofibrosarcoma.

Tr. 200-01. This cancer is not associated with asbestos

exposure. /d. at 477, 593-94. Hedgecorth underwent three

surgeries and radiation for this cancer. Jd. at 201. He claims

he worries about a recurrence of this cancer. /d. at 226.

Yet, the physician who treated his prior disease testified that

he was “stoic” or indifferent when diagnosed and treated for

his cancer. Def. Union Pacific Railroad Company’s Mem. of

Law in Supp. of its Mot. for a New Trial or, in the

alternative, Remittitur, Exh. C (Pet. App. 66a-73a).

Hedgecorth provided the only evidence regarding his

alleged fear of cancer. He claims he thinks about the

possibility that he may develop an asbestos-related cancer.

Tr. 204. However, he never sought any type of counseling

or psychiatric treatment. /d. at 228. Nor did friends or co-

workers corroborate his self-described concerns. He offered

no evidence that he or one of his physicians believed he

Should receive psychiatric treatment or psychological

counseling. He also did not indicate that his concerns related

to his alleged asbestos exposure have caused nightmares or

sleepless nights or affected his work life or friendships.

According to Hedgecorth, Dr. Ohar told him that he

needed to “keep an eye” on his asbestosis. Tr. 198. Yet,

other than his single, litigation-driven visit, he has not seen

Dr. Ohar or another pulmonologist for follow-up care. Tr.

228-29. Nor did Hedgecorth say that, because of asbestos

exposure, he now sees a general practitioner more often than

he did in the past.

6

Hedgecorth has been a moderate to heavy smoker most of

his life and knows that his smoking history puts him at risk of

developing cancer. Tr. 226-27. He admitted that he is

“worried” about developing a smoking-related disease such

as cancer and emphysema. /d. Yet, he has continued to

smoke cigarettes despite multiple admonitions from his

physicians about the serious risks involved. /d. at 199-200,

227.

C. Proceedings Below

Hedgecorth brought suit under the FELA, alleging that

Union Pacific failed to provide “reasonably safe conditions

for work,” “reasonably safe appliances,” and “reasonably

safe methods of work.” Pet. 3 (L.F. 28). He sought

damages for his asbestosis and fear of cancer, as well as lost

earning capacity and potential medical expenses. Pet. 5 (L.F.

30). The case was tried by a jury in a Missouri state court

and Union Pacific argued that Hedgecorth’s fear of cancer

was not “genuine and serious.” Tr. 800.

Union Pacific asked the court to instruct the jury with

respect to the elements of Hedgecorth’s fear of cancer claim.

Tr. 762-64 (Pet. App. 85a-87a). It argued that the Ayers

decision required the court to instruct the jury with respect to

the elements of Hedgecorth’s fear of cancer claim,

specifically the requirement that a plaintiff must prove that his

alleged fear of cancer is “genuine and serious.” /d. The trial

judge rejected Union Pacific’s request.

The instructions the trial court gave failed to provide the

jury with any meaningful guidance regarding Hedgecorth’s

fear of cancer claim. The comparative fault instruction based

on MAI 8.02, which governs damages in a FELA case,

instructed the jury to “award plaintiff such sum as will fairly

7

and justly compensate plaintiff for any damages you believe

plaintiff sustained and is reasonably certain to sustain in the

future as a result of the occurrence mentioned in evidence. ”

Pet. App. 80a. This instruction did not describe the “injury”

at issue or inform the jury, consistent with Ayers’ command,

that Hedgecorth is only entitled to fear of cancer damages if

he proves his fear is “genuine and serious.”* /d. The

instruction based on MAI 24.01 also failed to describe the

injury at issue or inform the jury of the requirements for

recovery of damages for fear of cancer.? Pet. App. 79a.

? Instruction No. 9 instructed the jury as follows:

If you assess a percentage of fault to defendant, then,

disregarding any fault on the part of plaintiff, you must

determine the total amount of plaintiff's damages to be such

sum as will fairly and justly compensate plaintiff for any

damages you believe he sustained and is reasonably certain

to sustain in the future as a result of the occurrence

mentioned in evidence. You must state such total amount of

plaintiff's damages in your verdict.

In determining the total amount of plaintiff's damages you

must not reduce such damages by any percentage of fault

you may assess to plaintiff. The judge will compute

plaintiff's recovery by reducing the amount you find as

plaintiff's total damages by any percentage you assess to

plaintiff. Any award of future pecuniary damages must be

included at present value. Any award you make is not

subject to income taxes.

> Instruction No. 7 instructed the jury as follows:

In your verdict you must assess a percentage of fault to defendant

whether or not plaintiff was partly at fault if you believe:

8

The jury returned a verdict against Union Pacific in favor

of Hedgecorth on April 19, 2005, awarding $240,000.00 in

damages. Judgment; Verdict (Pet. App. 74a-78a). The trial

court did not rule on Union Pacific’s motion for a new trial,

effectively denying it. L.F. 24; Mo. Sup. Ct. R. 78.06.

On appeal, Union Pacific challenged the trial court’s

rejection of Union Pacific’s tendered instruction on the issue

of fear of cancer. Pet. App. Sa. The Missouri Court of

Appeals rejected the challenge and affirmed the judgment of

the trial court. It explained that “MAI damage instruction

8.02 was given; [and] any further explanation by instruction

was not acceptable procedure under MAI.” Pet. App. 17a.

It reasoned that Ayers did not require “not-in-MAI

instructions detailing or explaining damages based on a fear

of developing cancer.” Pet. App. 18a-19a.

The Missouri Court of Appeals denied Union Pacific’s

motion for rehearing on October 11, 2006 and simultaneously

denied Union Pacific’s petition for transfer to the Missouri

Supreme Court. Pet. App. 3a-4a. Union Pacific

subsequently filed an Application for Transfer with the

Missouri Supreme Court. Pet. App. la-2a. This is similar to

a petition for a writ of certiorari. See Mo. Sup. Ct. R. 83.04.

The Missouri Supreme Court denied transfer on January 30,

2007. Pet. App. la-2a.

First, defendant failed to provide reasonably safe conditions

for work, and

Second, defendant was thereby negligent, and

Third, such negligence resulted in whole or in part in

injury to plaintiff.

9

REASONS FOR GRANTING THE PETITION

The FELA is not intended to transform railroads into the

“insurers of the emotional well-being and mental health of

their employees.” Gottshall, 512 U.S. at 554. The courts,

when interpreting the law, “must consider the general impact,

on workers as well as employers, of the general liability rules

they . . . thereby create.” Metro-North Commuter Railroad

Company v. Buckley, 521 U.S. 424, 438 (1997). In

accordance with these principles, the Court, in Norfolk &

Western Railway Company v. Ayers, was careful to limit

recovery for “fear of cancer” damages to those complainants

who demonstrate that their fear is “genuine and serious.”

Ayers, 538 U.S. at 158.

To control against frivolous claims and potential jury

speculation, Ayers said that defendants could seek verdict

control devices, such as jury instructions, that specifically

require a finding sufficient to support damages for fear of

cancer. The Missouri court’s strict adherence to procedural

rules ~ jury instructions regarding damages under the FELA

which do not reflect Ayers’ “genuine and serious”

requirement - impermissibly denies a defendant its federal

substantive rights. The lower court’s rejection of Union

Pacific’s tendered instructions on the issue of fear of cancer

is directly contrary to this Court’s decision in Ayers and those

decisions which require jury instructions concerning the

measure of damages in a FELA action to reflect federal

substantive law. Jd. at 158-59; Morgan, 486 U.S. at 335;

Dickerson, 470 U.S. at 411. Accordingly, this Court should

grant review.

10

I. THE MISSOURI COURTS MAY NOT DISREGARD

THIS COURT’S REQUIREMENT THAT THE

INSTRUCTIONS IN A FELA ACTION MUST

REFLECT FEDERAL SUBSTANTIVE LAW

The mandatory jury instructions promulgated by the

Missouri courts do not instruct the jury that to recover

damages for fear of cancer it must find that the plaintiff's fear

is “genuine and serious” as required by Ayers. The court

below held that the trial court’s rejection of Union Pacific's

tendered instruction on the issue of fear of cancer was not

erroneous because the applicable damages instruction, MAI

8.02, is mandatory. However, failing to instruct the jury as

to substantive federal law because it does not fit a pattern jury

instruction conflicts with prior decisions of this Court.

Morgan, 486 U.S. at 335; Dickerson, 470 U.S. at 411.

This Court has repeatedly held that the parties in FELA

cases are entitled to jury instructions that fully and accurately

convey the requirements of the governing federal substantive

law. As early as 1916, a mere eight years after the enactment

of the FELA, this Court held that a defendant in a FELA case

is entitled to have the jury instructed that “when future

payments or other pecuniary benefits are to be anticipated, the

verdict should be made up on the basis of their present value

only.” Chesapeake & Ohio Railway Company v. Kelly, 241

U.S. 485, 491 (1916).

In 1985 and 1988, the Court reaffirmed its prior holding.

In St. Louis Southwestern Railroad Company v. Dickerson,

the Court held that a Missouri court’s refusal to instruct a

FELA jury that any future losses awarded to the plaintiff must

be reduced to present value, because it was not provided for

in the MAI, was at odds with federal law. 470 U.S. at 411-

12. The Dickerson court noted that “the propriety of jury

11

instructions concerning the measure of damages in an FELA

Case is an issue of ‘substance’ determined by the federal law.”

Id. at 411. Accordingly, a state court may not reject a

proffered jury instruction simply because it is not found in

State-approved instructions. /d.

The Court again reversed the decision of a lower court in

Monessen Southwestern Railway Company v. Morgan,

because the tendered instruction did not reflect that future

losses must be reduced to present value. 486 U.S. at 342.

This Court did so because federal substantive law governs the

measure of damages in a FELA case. /d. at 335.

This Court has repeatedly embraced limitations on the

damages a FELA plaintiff may recover for emotional distress

injuries, in particular, damages for “fear of cancer.” It has

twice analyzed the circumstances in which recovery is

permitted. Both decisions demonstrate the importance of

tendering instructions which accurately reflect the limitations

imposed by federal substantive law.

In its first opinion on the subject, Metro-North Commuter

R.R. Co. v. Buckley, the Court refused to permit recovery for

fear of cancer where the plaintiff had extensive asbestos

exposure, but had not developed asbestosis or any other

cognizable physical injury. 521 U.S. at 428-38. The Court

explained that fear of cancer is a subcategory of the tort of

negligent infliction of emotional distress. Under the common

law, recovery for negligently caused emotional distress,

which is unaccompanied by physical injury, is the exception

rather than the rule. /d. at 429-30. Permitting recovery of

emotional distress damages for fear of cancer in these

circumstances could not be squared with the FELA’s common

law underpinnings.

12

This Court identified several policy considerations which

counseled against recognizing a right of recovery. First, the

difficulties associated with distinguishing between valid or

important claims and invalid or trivial claims were examined.

The Court noted that, in today’s society, exposure to

carcinogens is ubiquitous, and everyone faces a substantial

risk of developing cancer. /d. at 434-35. Although asbestos

exposure increases this risk, the increase is not so substantial

that it provides reasonable assurances that the plaintiff's

professed fears are valid and genuine. /d. Plaintiff testified

that he feared developing an asbestos-related disease, yet he

“sought no professional help to ease his distress, and

presented no medical testimony concerning his mental

health.” Jd. at 445. He also continued to smoke cigarettes,

ignoring his doctors’ warnings to quit. /d. at 433-34. In

addition, the Court noted that a rule permitting recovery in

the absence of physical injury could result in unpredictable,

yet massive liability which could diminish the likelihood of

recovery by persons with real injuries. /d. at 435-36.

Against this background, the Court returned to the subject

of recovery for fear of cancer in Norfolk & Western Railway

Company v. Ayers. 538 U.S. 135. Several plaintiffs who

developed asbestosis sought recovery for “their fear of

developing cancer” as part of their damages. /d. at 142. The

Court held that plaintiffs who had developed an asbestos-

related disease may recover damages for their alleged fear of

cancer. /d. at 141.

Although the Ayers Court held that fear of cancer damages

are recoverable when the plaintiff has sustained an injury, it

did not dismiss Metro-North’s policy concerns. The Ayers

majority cautioned that the rule permitting recovery of fear of

cancer damages is subject to “an important reservation”: the

13

plaintiff must “prove that his alleged fear is genuine and

serious.”* Jd. at 158.

Ayers emphasized that “[vjerdict control devices,”

including, “on a defendant’s request, a charge that each

plaintiff must prove any alleged fear to be genuine and

serious” would allow juries to distinguish between valid and

invalid claims, and ameliorate any concerns that juries will

make arbitrary and unpredictable damages awards, having

crippling financial consequences for the defendants. /d. at

158 n.17, 159 n.19, 178-81, 184-86. A “fear of cancer

claim” unsupported by corroborative objective evidence

would be “notably” thin, according to the Court. Jd. at 158

& n.18.

The lower court turned a blind eye to the substantive law

set forth in Ayers. Specifically, it ignored the requirement

that a claimant’s fear must be “genuine and serious” before he

or she may recover damages for fear of cancer. See id. at

158; Pet. App. 14a-19a. By ignoring this portion of the Ayers

decision, the lower court effectively stripped Union Pacific of

its substantive rights, i.e. its right to have the fact-finder

evaluate the complainant’s fear of cancer in light of this

requirement. This is contrary to the Court’s mandate in

Metro-North Commuter Railroad Company v. Buckley that the

court must consider the general impact of its action on

workers as well as employers. 521 U.S. at 438. It is also

contrary to the decisions of other state courts which require

* The Ayers court recognized that both federal and state courts

embraced this requirement. /d. at 157-58 (citing Smith v. A.C. &

S., Inc., 843 F.2d 854, 859 (5" Cir. 1988); Coffman v. Keene

Corporation, 608 A.2d 416, 424-25, 257 N.J.Super. 279, 293-94

(1992)).

14

a complainant to demonstrate, in accordance with and since

Ayers, that his or her fear is “genuine and serious.” See

Seaford v. Norfolk Southern Railway Company, 824 N.E.2d

94, 112, 159 Ohio App.3d 374, 398 (2004) rev'd on other

grounds, 835 N.E.2d 717, 106 Ohio St.3d 430 (2005).

The Missouri courts’ reliance on standard jury

instructions, the MAI, to convey this requirement is not only

insufficient, but it flies in the face of this Court’s decision in

Dickerson. MAI 8.02 and 24.01, even as modified and

given, failed to describe what “injury” was at issue or inform

the jury of the elements of Hedgecorth’s fear of cancer claim.

Pet. App. 79a-80a. In fact, the instructions given plainly did

not even mention Ayers’ “genuine and serious” requirement.

Id. Nor did the instructions inform the jury that fear of

cancer, as a species of negligently inflicted emotional distress,

was a distinct element of Hedgecorth’s alleged damages. /d.

The court below concluded that this requirement was

satisfied by MAI 8.02. Pet. App. 17a-18a. Yet, even

Missouri’s highest court has held that MAI 8.02 alone is not

always sufficient to convey the substantive elements of a

plaintiff's entitlement to damages under the Federal

Employers’ Liability Act. See Kauzlarich v. Atchison,

Topeka and Santa Fe Railway Company, 910 S.W.2d 254,

258 (Mo.banc 1995)(holding that the trial court’s refusal to

submit a separate mitigation of damages instruction was at

odds with federal law on a federal question and in error and

noting that MAI 8.02 is insufficient in a FELA case to submit

matters of federal substantive law).

The lower court’s refusal to look beyond the MAT is in

direct conflict with this Court’s decisions in Ayers and

Dickerson. In this case, as in Dickerson, the Missouri Court

of Appeals upheld the trial court’s refusal to submit

15

instructions, which conveyed federal substantive law, simply

because these instructions were not set forth in the MAI.

First, the lower court erroneously concluded that “Ayers

did not discuss or authorize jury instructions” concerning a

plaintiff's entitlement to fear of cancer damages and,

accordingly, a non-MAI instruction on this issue was not

required. Pet. App. 18a-19a. This Court, in Ayers, discussed

the use of jury instructions in “fear of cancer” cases. It

authorized the use of jury instructions, “on a defendant’s

request,” regarding the requirement that a plaintiff must prove

that any alleged fear was “genuine and serious.” 538 U.S. at

159 n.19. This, the Ayers court reasoned, allowed juries to

distinguish between valid and invalid claims. Jd. At least one

state has recognized that Ayers entitles a defendant to an

instruction on this issue. See KS-PIKCIV § 132.20

(recognizing that Ayers “suggests that [a] defendant would be

entitled to an instruction that ‘plaintiff must prove any alleged

fear to be genuine and serious.’”)

Even if Ayers did not authorize an instruction on this

issue, it is well-settled that the tendered instructions must

reflect federal substantive law with respect to damages. See

Kelly, 241 U.S. at 491; Dickerson, 470 U.S. at 411. Because

Ayers delineated the measure of damages for fear of cancer in

a FELA case, the well-settled rule is that the courts should

allow a party to instruct the jury on its “genuine and serious”

requirement. /d. Indeed, this Court has long-recognized that,

in awarding damages for mental suffering or emotional

distress, “[j]uries must be guided by appropriate instructions

and an award of damages must be supported by competent

evidence.” Carey v. Piphus, 435 U.S. 247, 264 n. 20 (1978).

At least one circuit has recognized that this reasoning should

not be confined to cases brought under 42 U.S.C. § 1983 and

noted that “Carey is applicable to all ‘cases involving federal

16

claims for emotional harm.’” Vadie v. Miss. State Univ. , 218

F.3d 365, 376, n. 26 (5" Cir. 2000), quoting Patterson v.

P.H.P. Healthcare Corp., 90 F.3d 927, 938, n.11 (5" Cir.

1996).

It is of paramount importance that this Court ensure that

courts apply federal substantive law and do not depart from

binding precedent. FELA is intended to create a uniform

federal remedy throughout the United States. New York Cent.

R.R. v. Winfield, 244 U.S. 147, 149 (1917). The failure to

convey the requirements for recovery of fear of cancer

damages is antithetical to the statutory purpose.

The instruction is particularly important in non-malignant

asbestos cases, such as the one brought by Hedgecorth. This

Court previously recognized “the danger that no

compensation will be available for those with severe injuries

caused by asbestos.” Ayers, 538 U.S. at 169 (citing Amchem

Products, Inc. v. Windsor, 521 U.S. 591, 598). “Asbestos

litigation has driven 57 companies, which employed hundreds

of thousands of people, into bankruptcy, including 26

companies that have become insolvent since January 1,

2000.” Jd. In 2003, the year after Hedgecorth filed suit,

over 100,000 asbestos claims were filed, “the most in a single

year.” Editorial, The Asbestos Blob, Cont., Wall St. J., Apr.

6, 2004, available at http://pqasb.pqarchiver .com/ws)}/access/

608896011.html. “[A] large and growing proportion of the

claims entering the system in recent years were submitted by

individuals[, like Hedgecorth,] who have not incurred an

injury that affects their ability to perform activities of daily

life.” ABA Commission on Asbestos Litigation Report to the

House of Delegates at 7 available at http://www. abanet.org/

leadership/recommendations03/302.pdf.

17

This case illustrates that excessive damages may be

awarded to unimpaired FELA plaintiffs if juries are not

instructed with respect the elements of their claim.

Hedgecorth’s self-described concerns about asbestos and

cancer hardly portrayed an individual burdened with

significant and enduring fears for his health. He maintained

a vigorous exercise regimen, professed that he had no

physical problems, and continued to smoke cigarettes. Tr.

199, 205, 228, 231-235. There was precious little evidence

of Hedgecorth’s fear of cancer. Yet, the jury still returned an

award of $300,000.00 gross damages. Pet. App. 77a-78a.

For all of these reasons, this Court’s review, or in the

alternative summary reversal, is warranted.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted. Alternatively, this Court may

wish to consider summarily reversing the decision below.

Respectfully Submitted,

James W. Erwin

Counsel of Record

Tracy J. Cowan

Karen M. Volkman

THOMPSON COBURN LLP

One US Bank Plaza

St. Louis, Missouri 63101

(314) 552-6000

(314) 552-7000 fax

Counsel for Petitioner

—

Ss tas alain Ka vere at Y ie fe

*

APPENDIX

la

APPENDIX A

In The Supreme Court of Missouri

SC88098

ED86817

January Session, 2007

Timothy P. Hedgecorth,

Respondent,

vs. (TRANSFER)

Union Pacific Railroad Company,

Appellant.

i a a Le a a

Now at this day, on consideration of the appellant’s

application to transfer the above-entitled cause from the

Missouri Court of Appeals, Eastern District, it is ordered that

the said application be, and the same is hereby denied.

STATE OF MISSOURI-Sct.

I, Thomas F. Simon, Clerk of the Supreme Court of the

State of Missouri, certify that the forgoing is a full, true and

complete transcript of the judgment of said Supreme Court,

entered of record at the January Session, 2007, and on the 30"

day of January, 2007, in the above-entitled cause.

2a

Given under my hand and seal of

said Court, at the City of Jefferson,

this 30" day of January, 2007.

/s/Thomas T. Simon Clerk

D.C.

3a

APPENDIX B

In The Missouri Court of Appeals

Eastern Division

TO: Attorneys of Record

FROM: Laura Thielmeier Roy, Clerk

»

DATE: October 11, 2006

RE: Motions For Rehearing And/Or Transfer to

Supreme Court Denied

:. ED86188 STATE OF MISSOURI, RES V

JOYCE BATTLE, APP

2. ED86229 STATE OF MISSOURI, RES V

MARCO FRANKLIN, APP

3 ED86330 IN THE INTEREST OF: B.D.P. II

4. ED86510 MICHAEL BLACK, APP V U-HAUL

COMPANY, RES

3 ED86678 STATE OF MISSOURI, RES V

LANCE A COLE, APP

6. ED86773 STATE OF MISSOURI, RES V

MICHAEL J JACKSON, APP

4 ED86817 TIMOTHY HEDGECORTH, RES V

UNION PACIFIC RR, APP

8. ED86840 STATE OF MISSOURI, RES V

DENNIS MATHIS, APP

9. ED86908 STATE OF MISSOURI, RES V

TERRY ADAMS, APP

10.

11.

$2.

so

4a

ED87027 TAMARA COOPER, APP V

ALBACORE HOLDINGS, RES

ED87122 ROBERT MOYNIHAN, APP V

PATRICK GUNN, RES

ED875 l¢g KIM FELD, APP V TREAS OF MO

“* SEC INJ FUND, RES

ED87598 JOHN HOFF, RES V ST. CLAIR

SCHOOL DIST, APP

Sa

APPENDIX C

In The Missouri Court of Appeals

Eastern Division, Division Three

No. ED86817

Appeal from the Circuit Court of the City of St. Louis

[Filed August 22, 2006]

Timothy P. Hedgecorth,

Plaintiff/Respondent,

V.

Union Pacific Railroad Company,

Defendant/Appellant.

i i ee ee a

Plaintiff, a railroad employee, filed a lawsuit against his

employer, the defendant railroad, under the Federal

Employers’ Liability Act [FELA], 45 U.S.C. sections 51, et.

seq., to recover damages for personal injuries suffered from

exposure to asbestos. The jury returned a verdict in plaintiff's

favor upon which the trial court entered judgment. On appeal,

the railroad claims that the trial court erred 1) in denying its

motion for JNOV because, it argues, plaintiff's evidence

established only a mere possibility of exposure to asbestos,

and 2) in refusing to give the railroad’s fear of developing

cancer instructions. We affirm.

6a

FACTUAL BACKGROUND

1. The Parties

Plaintiff, Timothy P. Hedgecorth, was an employee of

defendant, Union Pacific Railroad Company (Union Pacific),

and its predecessor, Missouri Pacific Railroad Company

(Missouri Pacific), from 1971 through the time of trial.

Missouri Pacific and Union Pacific merged in the mid-1980s.

From 1971 until 1983, plaintiff worked on the fifth floor of

Missouri Pacific’s twenty-two-story office building in St.

Louis, Missouri. From 1983, until the building closed in

2004, plaintiff worked on other floors in the building.

2. Chronology

Prior to 1970, insulation-wrapped pipes ran under the

building’s ceilings. These pipes were later covered by

dropped ceilings. Sometime after 1971, Missouri Pacific

engaged in a remodeling project that involved removing the

dropped ceilings and drilling through the floors to run

computer wiring.

When Missouri Pacific was removing the dropped ceiling

on the fifth floor and drilling through the sixth floor to the

fifth floor ceiling in order to run the computer wiring,

plaintiff was working on the fifth floor. When the ceiling was

removed, the insulation-wrapped pipes in file ceiling were

exposed. The insulation around the pipes was in very poor

condition, chipping and coming loose. During that

construction, which lasted close to a year, dust and larger

particles would fall from the ceiling onto plaintiff's and his

co-workers’ desks. Every morning, plaintiff and his co-

workers would have to wipe away a thick, heavy coating of

7a

dust and other particles on their desks with wet towels. The

dust and debris collected on the desks several times a day.

In January 1988, Harmon Engineering Associates, Inc.

conducted an asbestos survey of the building. Harmon found

white to gray paper type insulation material on the straight

portion of almost all steam piping and approximately half of

the domestic water piping. All forty-three samples taken of

this material contained asbestos ranging from fifty-five to one

hundred percent. Harmon found white, gray or tan

cementitious pipe fitting insulation on the pipe joints, fittings,

and valves of almost all of the steam, chilled water, and

domestic water piping. Fifty-one of fifty-two samples of this

material contained asbestos ranging from twenty to seventy-

eight percent. The water piping insulation was moderately

friable in fair to poor condition, and was found above the

ceiling in the occupied floors one through twenty-two. The

steam piping insulation was also moderately friable in fair to

poor condition, and was found in the main pipe chase.

Additionally, there were asbestos-wrapped chilled water pipes

in the main pipe chases and branches to the air handling units

on each floor.

The survey reported that although the pipe insulation in

the ceiling was protected by the dropped ceiling, the potential

for exposure may be increased when disturbed by physical

damage or by improperly conducted maintenance operations.

The survey recommended the removal of the asbestos-

wrapped pipes above the dropped ceilings on all floors.

The “Union Pacific St. Louis Office Building Asbestos

Operations and Maintenance Plan” (the Asbestos Plan), dated

January 1990, indicated that most of the pipe and duct

insulation in the building contained asbestos greater than one

percent by volume. The Asbestos Plan assessed the condition

8a

of the asbestos-containing materials in the building from

“fair” to “significantly damaged.” The Asbestos Plan

indicated that routine maintenance tasks could disturb existing

asbestos-containing pipe and duct insulation, including

electrical service connections, cable pulling through pipe

chases, conduit runs through pipe chases, sprinkler system

repair, HVAC equipment balancing, and any work in which

asbestos insulation materials could be accidentally or

intentionally disturbed.

In 1996, AMI Group, Inc. provided a Periodic

Reassessment of asbestos in the building for Union Pacific.

The reassessment indicated that the pipe/duct insulation in the

attics was in poor condition with large amounts of debris and

dust, which was a cause for concern because the dust was

pulled down the pipe chases where it had the potential to

spread throughout the building.

In the late 1990s, Union Pacific began the process of

having contractors remove asbestos from the building. Among

other notices, Union Pacific notified employees that asbestos

was being removed from the building, including the fifth floor

in the area where plaintiff had previously worked, as well as

the eighth floor computer room where plaintiff was then

working. Union Pacific also announced that asbestos was

being removed from the air handling system.

Prior to July 2000, plaintiff had a chest x-ray taken that

was positive for asbestosis. On July 3, 2000, plaintiff

consulted Jill Ohar, M.D., a board-certified physician in

internal medicine and pulmonary medicine, who had

researched and published in the area of asbestos-related lung

diseases. At the time of plaintiffs examination, Dr. Ohar was

a pulmonary specialist at St. Louis University. Dr. Ohar

advised plaintiff that he had a mild case of asbestosis, and

9a

described the serious health problems, including cancer, that

were associated with asbestos exposure.

In her videotaped deposition at trial, Dr. Ohar explained

asbestosis as the scarring in the lungs that is caused by the

inhalation of asbestos fibers and the resulting inflammation.

Dr. Ohar testified that inhalation of asbestos fibers causes an

inflammatory response in the lungs. Some fibers are cleared,

but a large number are retained in the lungs and continue to

incite ongoing inflammation that eventually results in

scarring. Dr. Ohar further explained that to make a diagnosis

of asbestosis, there must be 1) inhalation of asbestos fibers or

an exposure, 2) a minimum latency period of ten years, and

3) x-ray evidence of scarring in the lungs or pathologic

evidence. Dr. Ohar elaborated that the latency period is

required because it takes at least ten years for the scarring to

develop from the inflammation caused by inhaled fibers.

Dr. Ohar testified that she obtained an exposure history

from plaintiff. Plaintiff told her about the constant remodeling

and how he would enter his work area and find his computer

and desk covered with thick dust from the remodeling. He

also told her about Union Pacific’s subsequent efforts to clean

out asbestos tiles and remove asbestos from the dropped

ceiling and around pipes above him. Dr. Ohar reported that

plaintiff's x-ray showed mild scarring on the lungs and that

two other doctors who read the x-ray, including a board

certified radiologist and a B-reader, concurred.

Dr. Ohar gave her opinion to a reasonable degree of

medical certainty that plaintiff had a very mild case of

asbestosis on July 3, 2000. She based her opinion on her

examination and testing of plaintiff; plaintiffs description of

his history of asbestos exposure; the latency period; the

radiographic findings, including the chest x-ray that

10a

demonstrated abnormalities consistent with asbestosis; and her

medical background. Dr. Ohar further testified that after

reviewing the medical reports of Union Pacific’s experts, her

diagnosis was unchanged.

Dr. Ohar testified that exposure to asbestos under the

circumstances described by plaintiff would cause plaintiff's

asbestosis. Dr. Ohar also testified that if the dust on plaintiff's

desk had been asbestos-related dust, then the asbestos waste

could have caused exposure levels that were as bad as that

caused by the actual removal of asbestos from the pipes. Dr.

Ohar cited as authority several published papers that

demonstrated that sweeping or cleaning up asbestos waste

caused these similar exposure levels.

PROCEDURAL BACKGROUND

On February 1, 2002, plaintiff filed a petition against

Union Pacific to recover damages under the Federal

Employers’ Liability Act [FELA], 45 U.S.C. section 51, ef.

seq., for his injuries from asbestos exposure. The case was

tried before a jury. During the instruction conference, Union

Pacific offered two not-in-MAI instructions addressing

recovery of damages based on emotional distress from fear of

developing cancer, which the trial court rejected. The jury

returned a verdict assessing eighty percent fault to Union

Pacific and twenty percent fault to plaintiff. The jury found

the total amount of plaintiff's damages, disregarding plaintiffs

fault, to be $300,000.00. The trial court entered judgment

lla

against Union Pacific in the amount of $240,000.00. Union

Pacific raises two points on appeal.'

DISCUSSION

I. Submissibility

In its first point, Union Pacific asserts that the trial court

erred in denying its motion for judgment notwithstanding the

verdict because plaintiff failed to make a submissible case in

that plaintiff's evidence established only a mere possibility of

asbestos exposure. Union Pacific argues specifically that Dr.

Ohar’s diagnosis of asbestosis could not be considered

evidence of plaintiffs exposure to asbestos because Dr. Ohar’s

diagnosis assumed that plaintiff had been exposed to asbestos,

based on plaintiffs self-reported history of exposure. Union

Pacific further argues that plaintiff's remaining evidence of

his alleged asbestosis is speculative because plaintiff failed to

establish that he was exposed to airborne asbestos fibers, and

Union Pacific’s evidence that plaintiff was not exposed to

asbestos was not rebutted.

We review the trial court’s denial of a motion for

judgment notwithstanding the verdict to determine if the

plaintiff made a submissible case. Giddens v. Kansas City

Southern Ry. Co., 29 S.W.3d 813, 818 (Mo. banc 2000). A

plaintiff makes a submissible case if each and every fact

essential to liability is predicated on legal and substantial

evidence. /d. In determining submissibility, we view the

evidence and all reasonable inferences in the light most

' We do not review errors raised in the argument portion of a brief

that are not set out in the point relied on. Chancellor Development

Co. v. Brand, 896 S.W.2d 672, 678 (Mo. App. 1995).

12a

favorable to the verdict, and we disregard all contrary

evidence and inferences. /d. Whether evidence is substantial

and whether the inferences drawn are reasonable are questions

of law that we review de novo. Savory v. Hensick, 143

S.W.3d 712, 716 (Mo. App. 2004). We will not reverse a

jury’s verdict unless there is a complete absence of probative

fact to support the jury’s conclusion. Giddens, 29 S.W.3d at

818.

In determining whether plaintiff produced sufficient

evidence to make a submissible case under FELA, we apply

federal law. Urie v. Thompson, 337 U.S. 163, 174,

69 S.Ct. 1018, 1027, 93 L.Ed. 1282 (1949); Briggs v. Kansas

City Southern Ry. Co., 925 S.W.2d 908, 911 (Mo. App.

1996). A trial court should submit a case to the jury if there

is any evidence to support the employer’s negligence. Zibung

v. Union Pacific R. Co., 776 S.W.2d 4, 5 (Mo. banc 1989).

To make a submissible FELA case, an employee must show

that 1) the employer had 2 duty to provide a reasonably safe

work place, 2) the employer’s lack of care played some part,

however slight, in producing the injury, and 3) the injury was

reasonably foreseeable. Ramsey v. Burlington North. & Santa

Fe Ry., 130 S.W.3d 646, 651 (Mo. App. 2004). Evidence of

an employer’s negligence can be slight or minimal. Zibung,

776 S.W.2d at 5.

It is well established that the quantum of evidence

required to establish liability in a FELA case is much

less than in an ordinary negligence action. Harbin v.

Burlington Northern R.R. Co., 921 F.2d 129, 131

(7 Cir. 1990). A trial judge must submit a FELA case

to the jury when there is even slight evidence of

negligence. /d. The test is simply whether the

evidence justifies with reason the conclusion that

employer negligence played any part, even the

13a

slightest, in producing the employee’s injury. Rogers

v. Missouri Pac. R. Co., 352 U.S. 500, 506, 77 S.Ct.

443, 1 L.Ed.2d 493 (1957).

Duncan v. American Commercial Barge Line, 166 S.W.3d 78,

83 (Mo. App. 2004). See also Giddens, 29 S.W.3d at 818:

Ramsey, 130 S.W.3d at 651.

Asbestosis is a cognizable injury under FELA. Norfolk &

Western Ry. Co. v. Ayers, 538 U.S. 135, 148,

123 S.Ct. 1210, 1218, 155 L.Ed.2d 261 (2003).

Union Pacific first argues that plaintiff did not make a

submissible case because Dr. Ohar did not give an opinion on

whether plaintiff had been exposed to asbestos, and her

opinion that plaintiff has asbestosis is not in itself proof that

plaintiff was exposed to asbestos because her diagnosis was

based on plaintiff's self-reported history of exposure. This

argument does not affect the submissibility of plaintiff's case

because plaintiff did not depend on Dr. Ohar to give an

opinion that he was exposed to asbestos, and, as set forth

below, plaintiff adduced substantial evidence from which the

jury could infer exposure.

This takes us to Union Pacific’s second argument under

this point, which is that plaintiff's other evidence of his

alleged asbestos exposure was speculative. Union Pacific

contends that none of plaintiff's evidence supported an

inference that plaintiff was exposed to airborne ashestos

fibers. We disagree.

Plaintiff adduced evidence of the presence of asbestos

throughout the building, including in the insulation on the

overhead pipes and in the air handling system. Plaintiff also

adduced evidence of the construction work around the

14a

asbestos-insulated pipes in the 1970s that created substantial

dust on a daily basis in plaintiffs work area. The Asbestos

Plan indicated that electrical work and drilling around

asbestos-insulated pipes could disturb the asbestos. Dr. Ohar

testified that inhalation of asbestos fibers causes asbestosis,

and that if the dust created in plaintiff's work environment

contained asbestos fibers, exposure to asbestos under the

circumstances described by plaintiff would have caused

plaintiff's asbestosis. There was sufficient evidence from

which a jury could find asbestos was pregent, disturbed, and

released in plaintiff's work environment, and that plaintiff was

therefore exposed to asbestos.

Union Pacific claims that it produced unrebutted evidence

that the asbestos-containing materials in the building produced

only a miniscule level of airborne asbestos fibers. Under our

standard of review, we do not consider Union Pacific’s

contrary evidence and inferences. Giddens, 29S.W.3d at 818.

We disregard all evidence that does not support a plaintiff's

case. See Steward v. Goetz, 945 S.W.2d 520, 528 (Mo. App.

1997). There was sufficient evidence of causation to submit

the issue for the jury. Point one is denied.

Il. Refusal of Instructions

In its second point, Union Pacific first asserts that the trial

court erred in refusing to give to the jury either of its

proposed not-in-MAI instructions explaining when damages

for emotional distress based on a fear of developing cancer

may be recovered. Union Pacific argues that it was entitled to

jury instructions that reflected the holding in Ayers, 538 U.S.

at 157, that FELA permits damages to be recovered for

emotional distress based on a fear of developing cancer if that

fear is “genuine and serious.”

Va

15a

Union Pacific complains that the following proferred

instructions were not submitted to the jury:

Instruction No. A

In determining whether plaintiff has suffered

ernotional distress resulting from any reasonable fear

of developing cancer as a result of his diagnosis of

asbestosis, you must determine whether he has

demonstrated that his fear is genuine and serious. In

order to award damages to plaintiff for any emotional

distress, you must be persuaded, by a preponderance

of the evidence, that his emotional distress is an actual

injury.

In making this determination, you may take into

account whether or not plaintiff has voiced more than

a generMt concern about his future health, whether or

not he has suffered from insomnia or other stress-

related conditions, whether or not he has sought

psychiatric or medical attention for his symptoms,

whether he has consulted counselors or ministers

concerning his fear, whether he has demonstrated any

physical symptoms as a result of his fear, and whether

he has produced witnesses who can corroborate his

fear.

Unless you determine that their fear is genuine and

serious, and he has suffered actual emotional injury as

a result of this fear, you cannot find for the Plaintiffs.

Instruction No. B

[n order to find in favor of plaintiff for emotional

distress resulting from any reasonable fear of

16a

developing cancer as a result of asbestosis, you must

believe:

First, plaintiff suffers actual emotional

injury as a result of his fear of cancer relating

to asbestosis; and

Second, plaintiff has taken actions

indicating more than a general concern about

his future health or has demonstrated physical

symptoms as a result of his fear of cancer.

The court rejected these instructions and gave Union Pacific’s

Instruction 9, which was a comparative fault instruction based

on MAI 8.02.”

? Instruction No. 9

If you assess a percentage of fault to defendant, then,

disregarding any fault on the part of plaintiff, you must

determine the total amount of plaintiff's damages to be

such sum as will fairly and justly compensate plaintiff for

any damages you believe he sustained and is reasonably

certain to sustain in the future as a result of the occurrence

mentioned in evidence. You must state such total amount

of plaintiff's damages in your verdict.

In determining the total amount of plaintiff's damages

you must not reduce such damages by any percentage of

fault you may assess to plaintiff. The judge will compute

plaintiff's recovery by reducing the amount you find as

plaintiffs total damages by any percentage you assess to

plaintiff. Any award of future pecuniary damages must be

included at present value. Any award you make is not

subject to income taxes.

17a

The propriety of jury instructions on the measure of

damages in FELA cases is a substantive issue governed by

federal law. See Clark v. Missouri & Northern Arkansas R.R.,

157 S.W.3d 665, 671 n.3 (Mo. App. 2004). However, the

form of the instructions and the manner in which the

substantive law is submitted to the jury in FELA cases are

procedural issues governed by state law. Dunn v. St. Louis-

San Francisco Ry. Co., 621 S.W.2d 245, 254 (Mo. banc

1981); Cupp v. National R.R. Passenger Corp.,

138 S.W.3d 766, 773 n.1 (Mo. App. 2004). The use of

instructions approved by the Missouri Supreme Court for use

in FELA cases “is mandatory to the exclusion of all others.”

Griffith v. St. Louis-San Francisco R. Co. , 559 §.W.2d 278,

280 (Mo. App. 1977), cert. denied, 436 U.S. 926,

98 S.Ct. 2821, 56 L.Ed.2d 769 (1978). Thus, if MAI 8.02 is

applicable, it must be given. Gilliam v. Chicago & North

Westem Transp. , 859 S.W.2d 155, 161-62 (Mo. App. 1993)

In FELA cases, MAI 8.02 governs damages for an injury

to an employee. /d. “Other than the references to taxation,

present value, and mitigation of damages, it is essentially the

same as MAI 4.01 with the exception that the word ‘direct’ is

deleted from the fifth line of MAI 4.01.” MAI 8.02,

Committee Comment (1996 Revision). MAI 8.02, like MAI

4.01, does not list or explain the elements of damages. This

is to avoid the risk “of the jury being improperly instructed on

damages not supported by the record.” MAI 4.01, Committee

Comment (2002 Revision). If is anticipated that counsel will

tell the jury in argument what the lawful items of damages are

and which damages are supported by the record. /d.; see also

MAI, Why and How to Instruct a Jury, LX XII (6th ed. 2002).

In this case, MAI damage instruction 8.02 was given; any

further explanation by instruction was not acceptable

procedure under MAI. See Dunn, 621 S.W.2d at 253;

18a

Marshell v. Burlington Northern, Inc., 637 S.W.2d 168, 169

(Mo. App. 1982); Brazell v. St. Louis Southwestern Ry. Co..,

632 S.W.2d 277, 285 (Mo. App. 1982); Rule 70.02(b). MAI

8.02 allowed counsel to argue the facts of pain and suffering

to the jury, including emotional distress. See Duncan,

166 S.W.3d at 86-87 (involving same language in MAI 8.01).

Under MAI practice, emotional distress resulting from

plaintiff's fear of developing cancer was submitted by the

“any damages” language in MAI 8.02, and the detail of these

damages was reserved for counsel’s argument.

Union Pacific argues that Ayres requires an addition to the

MAI instruction. We have no authority to decide that an

applicable MAI instruction must be supplemented to conform

to case law. Marshell, 637 S.W.2d at 169. See also

Botanicals on the Park, Inc. v. Microcode, 7 S.W.3d 465,

470 (Mo. App. 1999). If we believe that the MAI instructions

misstate or do not fully state the law, our only course of

action is to transfer the appeal to the Missouri Supreme Court.

Lindsay v. McMilian, 649 S.W.2d 491, 494 (Mo. App. 1983).

We conclude that there is no reason to transfer this appeal

because Ayres does not require not-in-MAI instructions

detailing or explaining damages based on a fear of developing

cancer. In Ayres, plaintiffs had been diagnosed with asbestosis

caused by exposure to asbestos at their workplace.

538 U.S. at 141. Plaintiffs pursued a claim for damages in

state court, including damages for mental anguish, resulting

from their fear of developing cancer. /d. at 142. The railroad

employer sought a jury instruction that disallowed fear of

cancer damages except for those plaintiffs who proved both

“an actual likelihood of developing cancer” and “physical

manifestations” of the alleged fear. Jd. at 143. The trial court

rejected this instruction, and instead, instructed that “[A]ny

plaintiff who has demonstrated that he has developed a

19a

reasonable fear of cancer that is related to proven physical

injury from asbestos is entitled to be compensated for that fear

as a part of the damages you may award for pain and

suffering.” /d.

The Court held that the “mental anguish damages resulting

from the fear of developing cancer may be recovered under

the FELA by a railroad worker suffering from the actionable

asbestosis caused by work-related exposure to asbestos.” Id.

at 141. However, although the state trial court in Ayres had

instructed the jury on damages for fear of developing cancer,

the Court in Ayres did not discuss or authorize jury

instructions on this issue, but merely ruled on substantive law.

Since the form of instructions is a matter of Missouri law, the

Ayres holding does not require a change to the form of

approved MAI instructions.

Tendered instructions A and B were not authorized by

MAI. The trial court did not err in rejecting them. Point two

is denied.

The judgment of the trial court is affirmed.

/s/Kathianne Knaup Crane

Kathianne Knaup Crane, Presiding

Judge

Lawrence E. Mooney, J. and Booker T. Shaw, J ., concur.

20a

APPENDIX D

In The Circuit Court of Missouri of the City of St. Louis

State of Missouri

Cause No. 022-337

Division No. 11

[Filed May 19, 2005]

Timothy P. Hedgecorth,

Plaintiff,

V.

Union Pacific Railroad Company,

Defendant.

ee ee ee

DEFENDANT UNION PACIFIC RAILROAD

COMPANY’S MOTION FOR A NEW TRIAL OR,

IN THE ALTERNATIVE, REMITTITUR

COMES NOW Defendant Union Pacific Railroad

Company (“Union Pacific”), by and through counsel, and for

its Motion for New Trial or, in the alternative, Remittitur as

follows:

1. Plaintiff Timothy P. Hedgecorth (“Plaintiff”), a

clerical employee of Union Pacific, filed this action pursuant

to the Federal Employers’ Liability Act (“FELA”),

2la

45 U.S.C. § 51, et seq., alleging that he developed an

asbestos-related disease as a result of exposure to airborne

asbestos while working in the Union Pacific office building

located at 210 N. 13" Street in St. Louis, Missouri.

2. The Court entered judgment in the amount of

$240,000.00 on the jury’s $300,000 verdict in favor of

Plaintiff in which it assessed Plaintiff twenty percent (20%) of

the fault. Union Pacific is entitled an Order granting it a New

Trial based upon a multitude of errors. In the alternative,

Union Pacific requests a substantial remittitur.

3. In further support, Union Pacific hereby incorporates

by reference its accompanying Memorandum of Law filed

contemporaneously herewith.

WHEREFORE, Defendant Union Pacific Railroad

Company respectfully requests that the Court enter an Order

granting a new trial or, in the alternative, a substantial

remittitur.

Respectfully submitted,

By: /s/Tracy J. Cowan

Tracy J. Cowan, #40229

Karen M. Volkman, #49245

One US Bank Plaza

St. Louis, Missouri 63101

314-552-6000

FAX 314-552-7000

and

22a

Randall A. Jordan, Pro Hac Vice

Helen Moses, Pro Hac Vice

Jordan & Moses

1804 Frederica Road, Suite C

St. Simons Island, GA 31522

Attorneys for Defendant

Union Pacific Railroad Company

23a

IN THE CIRCUIT COURT OF MISSOURI OF THE

CITY OF ST. LOUIS

STATE OF MISSOURI

Cause No. 022-337

Division No. 11

[Filed May 19, 2005]

Timothy P. Hedgecorth,

Plaintiff,

Vv.

Union Pacific Railroad Company,

Defendant.

i i ee i ee i a

DEFENDANT UNION PACIFIC RAILROAD

COMPANY’S MEMORANDUM IN LAW IN

SUPPORT OF ITS MOTION FOR A NEW TRIAL, OR

IN THE ALTERNATIVE, FOR REMITTITUR

COMES NOW Defendant Union Pacific Railroad

Company (“Union Pacific”), by and through counsel, and for

its Memorandum of Law in Support of its Motion for anew

Trial, or in the alternative, Remittitur states as follows:

INTRODUCTION

Plaintiff Timothy P. Hedgecorth (‘Plaintiff’), a clerical

employee of Union Pacific, filed this action pursuant to the

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

et seg., alleging that he developed an asbestos-related disease

24a

as a result of exposure to airborne asbestos while working in

the Union Pacific office building located at 210 N. 13" Street

in St. Louis, Missouri (“St. Louis office building”). The

Court entered judgment in the amount of $240,000.00 on the

jury’s $300,000,00 verdict in favor of Plaintiff, after reducing

the amount for the twenty percent (20%) fault assessed to

Plaintiff.

Union Pacific is entitled an Order granting it a new trial

and/or substantial remittitur based upon a multitude of errors

committed during the trial. First, the Court allowed the

testimony of witnesses only disclosed at most ten (10) days

prior to the trial, which entirely changed the complexity of the

exposure allegations against Union Pacific from Plaintiff's

prior deposition testimony and Plaintiff's written discovery

responses. In addition, the Court’s admission of the recently

disclosed co-worker testimony was extremely prejudicial,

irrelevant, misleading and unfounded since the co-workers

were allowed to characterize materials in the building as

containing asbestos, despite a complete lack of expertise or

qualifications to identify asbestos-containing products, and

were allowed to provide unreliable irrelevant lay testimony

concerning purported asbestos products and potential

exposures in areas where Plaintiff never worked and for time

periods when Plaintiff was not in the same area or location.

This testimony was completely different from Plaintiff's

original claimed exposures and the evidence discovered up to

trial and created an entirely misleading and unreliable

mischaracterization of continuous and systematic exposures to

asbestos, despite there being no credible scientific or fact

evidence to support this testimony.

Second, the Court erred in refusing to submit Tendered

Instructions A through F to the jury and in submitting

Instruction No. 8 based upon MAI 32.07(B). For instance, the

25a

Court refused to submit Tendered Instructions A or B to

define the very specific proof requirements pertaining to any

fear of cancer claims for asbestosis, as set forth by the United

States Supreme Court in Norfolk and W. Ry. Co. v. Ayers,

123 S.Ct. 1210 (2003). Without such an instruction, the jury

was given discretion to award Plaintiff monetary damages

based upon fear of cancer without any guidelines whatsoever

to determine whether his stated fear was compensable. In

addition, the instructions submitted, including specifically

Instructions 7 and 9, allowed the jury to assume that any

expression of fear is an injury that is compensable in and of

itself. Tendered Instructions C through F also correctly stated

the law and the evidence adduced at trial and their absence,

particularly with the submission of Instruction No. 8, created

jury confusion, misstated the law, severely prejudiced Union

Pacific and created reversible error.

Third, the Court erred by allowing the admission into

evidence of the reports of Richard B. Levine, M.D. and M.

Sundarem, M.D., expert witnesses identified by Plaintiff,

despite Plaintiff's failure to produce these individuals for

deposition as required by the Court’s scheduling order and

after repeated requests by Union Pacific. This error was

further compounded by granting Plaintiff’s objection to Union

Pacific’s closing argument requesting the jury to draw an

adverse inference from Plaintiff's failure to produce these

witnesses at trial.

Fourth, the jury’s verdict is against the weight of the

evidence and is grossly excessive given the lack of evidence

of damages suffered by Plaintiff. Plaintiff offered absolutely

no evidence of loss of past or future wages or reduced earning

capacity. Evidence of any pain and suffering was also non-

existent. To the extent that Plaintiff attempted to present any

evidence of emotional distress damages for fear of cancer, this

26a

evidence was wholly insufficient to justify an award of

damages, particularly in light of the strict criteria established

by the Ayres Court for the award of such damages.

Accordingly, the jury’s verdict should be reversed and a new

trial ordered or, at the very least, a substantial remittitur of

damages should be ordered.

Finally, the Court committed reversible error based on

numerous other rulings, including: (1) the exelusion of

evidence of medications taken by Plaintiff fer depression prior

to his alleged diagnosis of asbestosis; (2) the limitation of

testimony by Union Pacific’s experts concerning their

inspection of the St. Louis office building, particularly given

the unreliable and unfounded lay opinion testimony of

Plaintiff and his co-workers, (3) the introduction of evidence

concerning the knowledge of “Railroad Doctors” in 1935; (4)

allowing Plaintiff to introduce the deposition, including cross-

examination, of Dr. Herbert Shapiro in Plaintiff s case; and

(5) the exclusion of portions of the videotaped deposition of

Jill Ohar, M.D., taken by Union Pacific after Plaintiff

presented Dr. Ohar’s in his case.

ARGUMENT

A. The Exposure Testimony of Plaintiff, Vicki Kalal,

Frances Beltz, Earl Chilton and Cheri L. Jones

amounted to Inadmissible Lay Opinion Testimony

Plaintiff offered only his own testimony and the testimony

of four co-workers to establish his alleged exposure to

asbestos - the ultimate issue in this case. However, all of this

testimony was unreliable lay opinion testimony without any

credible basis to establish asbestos exposure. Moreover,

Plaintiff did not even identify these witnesses until ten (10)

days prior to trial.

27a

According to the Plaintiff, there were two places in the

building and two instances where he believed he was exposed

to asbestos:

1) In the mid-1970’s, renovation work was occurring

around his work station in the fifth floor annex. Trial Tr. at

186, line 6-188, line 21, 190, line 10-191, line 7. For several

months, Plaintiff testified that he would come in to work in

the morning and had to wipe his desk down with a wet paper

towel to remove the dust that had accumulated overnight. /d.

at 190, line 21-191, line 7. He testified that this wiping

proeedure took a minute or so. /d. at 216, lines 20-21.

2) In the mid-1980’s, when Plaintiff was working in the

computer room on the eighth floor, he saw men in protective

suits On site to remove asbestos behind a wall /d. at 193, line

9-194, line 7. This occurred on one evening. /d. Significantly,

Hedgecorth admitted that he has no information that would

qualify him to identify asbestos-containing material. /d. at

216, line 25- 217, line 3.

Vicki Kalal (“Kalal”) had a desk next to Plaintiff in the

fifth floor annex for some period of time. Trial Tr. at 110,

line 21-111, line 5. She could not recall, however, when or

how long she worked with Plaintiff. Jd. at 120, lines 10-18.

Kahal testified that she believed there was asbestos material

in the building; she based this belief largely on the notices

which came out concerning abatement in the 1990s, which

instructed employees to stay away from areas where

abatement work was being done. /d. at 116, line 13-117, line

19, 118, line 22-119, line 8. With regard to asbestos-

containing products, she testified over the objection of Union

Pacific as follows:

28a

Q. So the pipes that you talked about earlier do you

believe that those had exposure to asbestos?

MR. COWAN: Objection, leading, lack of

foundation of this witness.

THE COURT: Overruled.

Q. (By Mr. Hagerty): Go ahead.

A. What was the question?

Q. The pipes that you were working under when this dust

was coming down, did you believe those had been

wrapped in asbestos?

A. Oh, yes.

Id. at 117, lines 9-19.

Q. (By Mr, Hagerty): _In the stairwells that you used,

typically, did you observe asbestos in the stairwells?

A. I don’t -

MR. COWAN: Objection. Lack of Foundation

and expertise. Objection.

THE COURT: Overruled.

Q. (By Mr. Hagerty): Go ahead.

A. Until they did the major remodeling in the stairwell

everything was pretty dirty, so I wouldn’t be aware of

what it was, but you didn’t see stuff laying around.

29a

Id. at 118, line 22-119, line 8. Kalal admitted that she had no

ability or expertise to identify asbestos-containing products

nor did she have any specific knowledge as to where any

asbestos-containing products were located in the building. /d.

at 120, line 25-121, lines 5, 16, 21.

Francis Beltz (“Beltz”) also testified as to her observations

of renovations and abatement procedures at the building. /d.

at 128, line 17-129, line 19, 131, line 16-132, line 5, 141,

lines 17-21. Beltz testified that she worked on the eighth floor

when Plaintiff worked in the computer room on this floor. Jd.

at 128, lines 10-16. She could not remember when they

worked on the eighth floor at the same time. /d. at 150, lines

2-20. She testified, with regard to the eighth floor, as follows:

Q. Now I want to ask you about the 8" floor, Fran, in

particular. Did there come a time when you believe

looking back that you were exposed to asbestos there?

MR.COWAN: Objection, Your Honor, lack of

foundation and lack of expertise.

THE COURT: = Overruled.

Q. (By Mr. Hagerty): Go ahead.

A. Yes. The year 1970 to ‘71 when we were working as

key punch operators they enclosed us in this plastic

and they were removing one wall to add an extra room

to the department and they were removing the sinks.

We had sinks we actually used to wash up and they

were removing the sinks, and the piping, and the

plaster, and the floor, and there was so much debris.

30a

It was like snow in there, and we used to

sometimes sit there with our coffee and put our IBM

cards on top of the coffee cup so it wouldn’t fill up

with the debris that was all around us. We would go

home and our hair would be white. Of course they had

plastic up, but the plastic enelosed us. We were

enclosed within that plastic.

Id. at 128, line 17-129, line 12. Beltz also testified as to

remodeling on the second floor-even though Plaintiff did not

work on this floor. Jd. at 134, line 23-135, line 9. She

testified as to conditions on the fifth floor, including by

referring to pictures of this floor - Plaintiffs Exhibits 28 and

30, which were introduced into evidence - even though she

admitted that Plaintiff did not work in this area at the same

time. Jd. at 137, line 5-140, line 22, 150, line 21-151, line

11, 155, line 23-158, line 10. Belz admitted that she had not

been trained in identifying asbestos-containing products and

did not know how to determine whether or not specific

products contained asbestos. /d. at 143, line 25-144, line 5.

Earl Chilton (“Chilton”) testified on behalf of Plaintiff.

His only experience with Plaintiff was working with him

sometime in the 1970s on the Fifth Floor. /d. at 296, lines 8-

10. He also offered testimony concerning the presence of

asbestos-containing products in the office building:

Q. Were they insulated then, those pipes?

A. I would assume that’s what the asbestos did.

MR. COWAN: Objection, Your Honor.

THE COURT: Overruled.

31a

Id. at 280, line 25-281, line 3. See also id. 284, line 6-291,

line 12, 292, line 9-294, line 22, 298, line 21-301, line 8.

Chilton, like the other lay witnesses admitted that he had no

qualifications to identify asbestos versus non-asbestos

products. /d. at 296, lines 4 - 7.

Furthermore, Cheri L. Jones testified as to dusty

conditions during a two week time period on the fifth floor

main, even though she testified that Plaintiff worked on five

annex during this time. /d. at 250, line 24-251, line 5, 252,

lines 9-13, 253, lines 12-19. Jones testified to dusty condition

on other floors - without regard to Plaintiff's presence on

these floors during the same time period. /d. at 255, line 18-

256, line 8, More importantly, Jones only testified that the

work environment was sometimes dusty, but never testified,

and could not have testified, that the dust contained asbestos.

Id. at 244, line 18, 272, line 11.

In Missouri, “[{a] lay witness generally cannot render an

opinion as to the ultimate issue in a case.” Mohr v. Mobley,

938 S.W.2d 319, 322 (Mo. App. 1997). According to the

Mohr court:

Section 490.065 RSMO 1994 authorizes an expert

witness to render an opinion on an ultimate issue in a

case ‘if scientific, technical or other specialized

knowledge will assist the trier of fact to understand the

evidence or to determine a fact in issue.’ .... We are

not aware of any authority, however, which suggests

that lay opinion testimony should be admitted as to the

ultimate issue of the ease. The long-standing rule is to

the contrary.

Id. The Mohr court also noted,

32a

... [lay] witnesses generally do not give opinions or

make conclusionary statements in their testimony,

unless they personally observed events, in which case

they may testify to their comprehension of what they

have seen in a descriptive manner which actually

constitutes a conclusion, opinion, or inference, ‘if the

inference is common and accords with the ordinary

experiences of everyday life.’

938 S.W.2d at 322-323.

The expert testimony of plaintiff and his co-workers is

necessarily inadmissible lay opinion about whether Plaintiff

was exposed to asbestos at Union Pacific or not. It is opinion

testimony because none of the witnesses knew for a fact

whether the dust or the pipes they observed contained

asbestos. It was their “opinion” that this was the case because

they simply knew that it was for various, speculative reasons.

These opinions were of the “inadmissible lay” variety because

none of the witnesses who gave them possessed the expertise

to distinguish a material or cloud of dust that contained

asbestos from a material or cloud of dust that did not. If any

witness did possess that expertise, evidence of that ability was

never established and the opinions fail for lack of foundation.

To analogize, trial counsel in toxic tort cases tend to read

a lot of medical articles and may know a fair amount about the

medical aspect of such cases. However, no Court would allow

such an attorney to give opinions from the witness stand about

medical issues. Mr. Hedgecorth and his co-workers, mostly

clerical employees at the railroad, face the same restraints in

their opinion testimony. At trial, they were allowed to venture

far beyond their areas of expertise when they opined about the

plaintiffs “asbestos exposure” at the St. Louis office building.

It was simply inadmissible lay opinion.

33a

In FELA cases, it has been established that this kind of lay

opinion is not sufficient to establish exposure to toxic

substances. In Wills v. Amerada Hess Corp. , 379 F.3d 32 (2d

Cir. 2004), the U.S. Court of Appeals for the Second Circuit

affirmed a grant of summary judgment in a toxic tort case

brought by a seaman’s widow pursuant to the Jones Act. The

trial court had excluded the testimony of the plaintiff's

medical causation expert on the ground, inter alia, that he

relied on a co-worker’s account of toxic exposure to conclude

that the plaintiff had been injured as a result of exposure to

chemicals while on board ship:

[The medical expert’s] proposed expert testimony on

the issue of dosage amount also relied on the affidavit

testimony of...a seaman who worked on the same

ships as decedent for a period of five months. In his

affidavit, [the seaman] averred that he and other

seamen had suffered from various ailments that could

be attributed to harmful exposure to toxins [and]

referred to conversations that he had with decedent

regarding decedent’s symptoms of exposure to

dangerous toxins. Based on these observations, [the

seaman] opined that decedent was exposed to a

harmful dose of toxins while aboard defendants’ ships.

[The medical expert] relied on [the seaman’s]

testimony in concluding that exposure to toxins while

aboard defendants’ ships was the cause of decedent’s

Squamous Cell carcinoma. The district court, however,

found Miller’s testimony insufficient to support expert

testimony....

We agree with the district court that [the seaman’s]

testimony was insufficient to establish that decedent

had been exposed to a harmful amount of toxins or

that such exposure caused his cancer. First, ... a

34a

seaman lacked the “practical experience and

necessary academic training” to analyze and quantify

the dosage of the toxins emitted aboard defendants’

ships.... Absent Some technical or professional

expertise in detecting and quantifying toxic emissions,

[the seaman’s] testimony was insufficient to establish

dosage amount.

379 F.3d at 49 (emphasis added) (citations omitted).

Obviously, the identification of asbestos-containing products

and the assessment of the amount of exposure an individual

might have are not within the “ordinary experiences of

everyday life” of a clerical employee who works in an office

building. Such conclusions require significant industrial

hygiene or engineering expertise.

The prejudice caused by the testimony of Plaintiff, Kalal,

Beltz, Chilton and Jones, in addition to the admission of

Exhibits 28 and 30, struck at several levels. This testimony

inflamed and prejudiced the jury against Union Pacific by

implying that workers at the office building located at the St.

Louis office building - including Plaintiff - were exposed to

high concentrations of asbestos fibers throughout the course

of their employment, even though these individuals had

absolutely no basis for reaching these conclusions. See also

Def. Union Pacific Railroad Company’s Mot. in Limine

regarding Co-Worker Test. The prejudice to Union Pacific

was compounded by the fact that the Court excluded the

testimony of Plaintiff's expert, Jili Ohar, M.D., where she

stated that she “would have to rely on an industrial hygienist”

to determine if dust contained asbestos fibers. Trial Tr. at

765, lines 7-18; 2/8/05 Videotaped Dep. of Jill Ohar, M.D.

by Defendant at 53, line 15-18 attached hereto as Exhibit A

and incorporated herein by reference.

35a

Union Pacific was further prejudiced by the witnesses’

inability to relate any purported exposures directly to

Plaintiff. In fact, the witnesses could not link the purported

exposures to floors on which Plaintiff worked or the

timeframe during which he worked on these floors. In

Missouri, “[e]vidence of similar facts, conditions, or

occurrences is generally inadmissible unless conditions are

demonstrated to be the same.” Dillman v. Missouri Highway

and Transportation Commission, 973 S.W.2d 510, 512 (Mo.

App. E.D. 1998); Govreau v. Nu-Way Concrette Forms, Inc.,

73 S.W.3d 737, 743 (Mo. App. E.D. 2002). “Such evidence

must be of an accident of like character, occurring under

substantially the same conditions, and it must be one resulting

from the same cause. Dillman, 973 S.W.2d at 512.

This baseless testimony misled and distracted the jury

from the issue of Plaintiff's individual exposure to asbestos,

leaving them with the impression that he was, in fact, exposed

to harmful levels of asbestos fibers numerous times over many

years and/or as a result of the cumulative renovations at this

building over the years. See Def. Union Pacific Railroad

Company’s Mot. in Limine to Exclude Evidence or Test.

Concerning Repairs to, Abatement Work on and/or the

Presence of Asbestos-Containing Products on any Floors other

than those Floors where Pl. Timothy Hedgecorth Worked:

Def. Union Pacific Railroad Company’s Mot. in Limine to

Exclude Evidence or Test. From any Individuals who Worked

on Floors other than those Floors where Pi. Timothy

Hedgecorth Worked. These errors were also compounded by

the Court’s failure to limit this testimony to a relevant time

period, thereby giving the jury the impression that the all the

purported occurrences were when the co-workers worked with

Plaintiff and were relevant to an assessment of Plaintiff’s

exposures and resulting injury, even though any exposures

after 1990 were not relevant as urged by Union Pacific in its

36a

Motion in Limine. See Def. Union Pacific Railroad

Company’s Mot. in Limine to Exclude any Evidence or Test

Regarding Any Exposure after 1990. See also Def. Union

Pacific Railroad Company’s Mot. in Limine to Exclude any

Evidence or Testimony regarding any Exposures prior to the

Commencement of Abatement Work. The net effect of these

errors left the jury with an extremely overinflated and

distorted perception of the presence of asbestos-containing

products in the St. Louis office building and of Plaintiff's

purported exposures at this location.

Union Pacific suffered further prejudice because Plaintiff

failed to seasonably identify these witnesses in accordance

with the Missouri Rules of Civil Procedure, thereby denying

Union Pacific the opportunity to conduct adequate discovery

with regard to the issues raised by these witnesses. See Def.

Union Pacific Railroad Company’s Mot. in Limine to Exclude

the Trial Testimony. of Any Witnesses not Identified during

Discovery by Pl. Timothy Hedgecorth; Trial Tr. at 272, line

25 - 274, line 21. “The rules of discovery are designed to

allow the litigants to determine the facts prior to trial, obtain

access to information about the respective contentions, to

preserve evidence, prevent concealment and unjust

surprise, and formulate issues for trial.” Moore v. Weeks, 85

S.W.3d 709, 722 (Mo. App. W.D. 2002)(emphasis added).

Where, as in this case, a party has consciously avoided

identifying witnesses in its discovery responses, settled

Missous1 case law supports the exclusion of the undisclosed

witnesses at trial. See Moore, 85 S.W.3d at 722 (excluding a

witness who had not been identified in response to discovery

and was to testify concerning a matter of public record);

Wilkerson v. Prelutsky, 943 S.W.2d 643, 648-50 (Mo. Banc

1997)(excluding testimony of treating physician on the issue

of causation as a sanction for plaintiff's failure to identify this

witness in answers to interrogatories); Sample v. Witt, 712

37a

S.W.2d 394, 397 (Mo. App. W.D. 1986)(excluding testimony

of a witness not identified in answers to interrogatories).

Granted, Union Pacific deposed these witnesses prior to

their trial testimony, but during the trial itself. As a result,

Union Pacific had only limited time, thirty (30) to forty-five

(45) minutes in each case, to take the deposition and,

therefore, did not have adequate time to inquire into the scope

of these witnesses’ knowledge, investigate any of the issues

raised by their testimony and prepare to respond to their

testimony.

Accordingly, the Court should Order a new trial based

upon the admission of this unreliable lay opinion testimony

which was prejudicial to Union Pacific and substantially

affected the verdict in favor of Plaintiff. See, e.g., Hawley v.

Merritt, 452 S.W.2d 604, 612 (Mo. App. 1970); Rogers v.

Toro Manufacturing Company, 522 S.W.2d 632, 639 (Mo.

App. 1975).

B. The Court Erred in its Instructions

The Court erred in rejecting Defendant’s Tendered

Instructions A through F and giving Instruction No. 8 based

upon MAI 32.07(B).

1. Instructions A and B.

Tendered Instructions A and B instructed the jury

on the issue of emotional distress damages based upon

his alleged fear of developing cancer. Trial Tr. at 763,

line 6-764, line 6. Instructions A and B were as

follows:

38a

Instruction No. A

In determining whether plaintiff has suffered

emotional distress resulting from any reasonable fear

of developing cancer as a result of his diagnosis of

asbestosis, you must determine whether he has

demonstrated that his fear is genuine and serious. In

order to award damages to plaintiff for any emotional

distress, you must be persuaded, by a preponderance

of the evidenee, that his emotional distress is an actual

injury.

In making this determination, you may take into

account whether or not plaintiff has voiced more than

a general concern about his future health, whether or

not he has suffered from insomnia or other stress-

related conditions, whether or not he has sought

psychiatric or medical attention for his symptoms,

whether he has consulted counselors or ministers

concerning his fear, whether he has demonstrated any

physical symptoms as a result of his fear, and whether

he has produced witnesses who can corroborate his

fear.

Unless you determine that his fear is genuine and

serious, and he has suffered actual emotional injury as

a result of this fear, you cannot find for [plaintiff].

Instruction No. B

In order to find in favor of plaintiff for emotional

distress resulting from any reasonable fear of

developing cancer as a result of asbestosis, you must

believe:

39a

First, plaintiff suffers actual emotional injury as a

result of his fear of cancer relating to asbestosis; and

Second, plaintiff has taken actions indicating more

than a general concern about his future health or has

demonstrated physical symptoms as a result of his fear

of cancer.

There is no MAI instruction on the issue of emotional

distress damages for fear of cancer. “When no MAI

instruction is available the jury must be instructed on the

applicable rules of law under an appropriate instruction which

follows the law and is so composed that a jury of ordinary

people can understand it.” McMullin v. Borgers, 806 S.W.2d

724, 730 (Mo. App. 1991).

Plaintiff's claim for emotional distress damages has very

specific proof requirements set forth by the United States

Supreme Court. In Norfolk & W. Ry. Co. v. Ayers; 123 S. Ct.

1210 (2003), the Supreme Court was specifically faced with

the question of “whether a [FELA] plaintiff [who has been

diagnosed with asbestos]...can recover damages for fear of

[asbestos-related] cancer...without proof of physical

manifestations of the claimed emotional distress.” 123 S.Ct.

at 1223 [emphasis added]. The court responded to this

question as follows:

Our answer is yes, with an important reservation. We

atffirm only the qualification of an asbestosis sufferer

to seek compensation for fear of cancer as an element

of his asbestosis-related pain and suffering damages.

It is incumbent upon such a complainant, however to

prove that his alleged fear is genuine and serious....

40a

123 S.Ct. at 1223 (emphasis added). The Supreme Court

specifically stated that it was not ruling on the sufficiency of

the -evidenee of emotional distress presented by the Ayers

plaintiffs, 123 S.Ct. at 1224, but cited two cases as guidance

for its “genuine and serious” requirement. As noted in the

decision, the Fifth Circuit in Smith v. ACandS, Inc. , 843 F.2d

854, 859 (5" Cir. 1988) found that an asbestotic’s testimony

voicing a “general concern for one’s future health” was

insufficient as a matter of law to prove emotional distress

damages for fear of cancer. On the other hand, the court

referred to Coffman v. Keene Corp. , 608 A.2d416(N.J. App.

1992), in which a plaintiff's testimony that he was angry and

frightened upon being diagnosed with asbestosis, and that his

fright was “magnified by the experience of his brother-in-law,

who had physically wasted and died from asbestos-related

cancer after his own diagnosis of asbestosis, was found to be

a sufficient showing of emotional distress.

The court was expressly critical of the “notably thin”

proof of emotional distress offered by the plaintiffs in Ayers:

one of the claimants did not testify to having any

concern about cancer; another testified that he was

more afraid of shortness of breath from his asbestosis

than of cancer. Others testified to varying degrees of

concern over developing the disease; no claimant

presented corroborative evidence of his fear.

Ayers at 1224, n. 18. The court stated that this proof “might

well have succumbed to a straightforward sufficiency-of-the-

4la

evidence objection,”' a which apparently was not raised inthe

trial court. Ayers at 1224.

The Supreme Court’s requirement of proof that the

claimed emotional distress is “genuine and serious” follows

a line of precedent requiring demonstrable evidence of

emotional distress for pain and suffering damages resulting

from violations of federal law. In Carey v. Piphus, 435 U.S.

247 (1978), the court specifically required evidence of “actual

injury” as proof of emotional distress:?

Distress is a personal injury familiar to the law,

customarily proved by showing the nature and

circumstances of the wrong and its effect on the

plaintiff....We use the term “distress” to include

mental suffering or emotional anguish. Although

' It is significant that the Ayres court, although rejecting an

absolute requirement of physical manifestation of emotional

distress, nonetheless noted that the absence of a physical

manifestation might well render a plaintiff’s proof insufficient for

a significant recovery, thus suggesting that physical manifestation

might be an element of the required “genuine and serious”

showing, Ayres 123 at 1224, n. 17.

* Carey dealt with damages resulting from a deprivation of due

process actionable under 42 U.S.C. § 1983. The approach has been

followed in non-constitutional cases and the Fifth Circuit has held

that “the Court’s reasoning was not confined to § 1983” and that

the Carey analysis is thus applicable to all cases involving federal

claims for emotional harm.” Vadie v. Miss. State Univ., 218 F.3d

365, 376, n. 26 (S" Cir. 2000), quoting Patterson v. P.H.P.

Healthcare Corp., 90 F.3d 927, 938, n. 11 (5" Cir. 1996).

42a

essentially subjective, genuine injury’ in this respect

may be evidenced by one’s conduct and observed by

others ....

435 U.S. 247, 263-64 and n. 20 (emphasis added). As in

FELA jurisprudence, the Carey court mandated an analysis

rooted in tort common law rules “defining the elements of

damages and the prerequisites for their recovery.” 435 U.S.

at 258-58. Following this lead, a number of circuit courts

have devised tests for sufficiency of evidence of mental

anguish claims which are entirely consistent with the Ayers

court’s “genuine and serious” requirement, and are

enlightening as to the sufficiency of evidence necessary to

prove” genuine and serious” fear.

The Eighth Circuit, moreover, has held that “any award

for emotional distress must be supported, by competent

evidence of a ‘genuine injury,’” and that a plaintiff's

testimony in this regard must “identify and describe the kind

of severe emotional distress” worthy of compensation.

Forshee v. Waterloo Industries, Inc., 178 F.3d 527, 531 (8"

Cir. 1999). The Eighth Circuit is consistent with the other

circuits who require some objective evidence of emotional

distress. See e.g. Price v. Charlotte, 93 F.3d 1241, 1251-

1252 (4"Cir. 1996) (“evidence of the emotional distress must

be demonstrable, genuine, and adequately explained”);

Patterson, 90 F.3d 927, 939-940 (5" Cir. 1996)(denying

emotional distress compensatory damages to a plaintiff who

testified to frustration, loss of self-esteem, hurt, anger, and

paranoia, but “presented no corroborating testimony [and did

> Notably, the Carey court required proof of a “genuine injury”;

the Carey court required proof that the claimed emotional distress

is “genuine and serious.”

43a

not] offer expert medical or psychological evidence of

damages caused by his alleged distress ... [nor any evidence

of] sleeplessness, anxiety or depression....”); Rakovich v.

Wade, 819 F.2d 1298, 1305 (7" Cir. 1990)(emphasis in

original), vacated en banc on other grounds, 850 F.2d 1180,

cert. denied, 488 U.S. 968 (1988) (requiring proof of

“demonstrable emotional distress,” greater than a plaintiff’ s

testimony that “just point[s] to circumstances of the [breach

of duty] which might support an inference of such injury”);

Nekolav v. Painter, 653 F.2d 1164, 1172-73 (7" Cir. 1981),

cert. denied, 455 U.S. 1021 (1982) (emotional distress

damage award reversed: a “single statement by a party that he

was ‘depressed’, ‘a little despondent’, or even completely

humiliated’ ... is not enough to establish injury”).

The analysis in these and other cases is entirely consistent

with the Ayers “genuine and serious” requirement, as

illustrated by the Smith and Coffman cases. Compare, e.g.,

Knussman v, Maryland, 272 F.3d 625, 640 (4" Cir.

2001)(plaintiff's and physician’s testimony that he suffered

chest pains, palpitations, depression, panic attacks sufficient

to sustain “some award” for emotional distress); Turie v.

Holland Hospitality, 85 F.3d 1211, 1215-16 (6" Cir. 1996)

(plaintiff's testimony of nightmares, weight loss, and

excessive nervousness sufficient to sustain damage award);

DeNieva v. Reyes, 966 F.2d 480, 487 (9" Cir. 1992)

(testimony of insomnia, dizziness and vomiting sufficient to

sustain damage award); Vadie, 218 F.3d 365, 377-78 (5"Cir.

2000) (plaintiff's testimony that he became “‘sick, totally ill,

physically, mentally, and everything ... [and] took many

doctors, many pills” sufficient to sustain damage award); with

Forshee. 178 F.3d at 531 (proof insufficient as a matter of

law where plaintiff’suffered no physical injury, was not

medically treated for any psychological or emotional injury,

and no other witness corroborated any outward manifestation

44a

of emotional distress”); Rodgers v. Fisher Body Div., Gen'l

Motors Corp., 739 F.2d 1102 (6"Cir. 1984) (damage award

reversed where plaintiff testified to no manifestations of

alleged distress); and cases cited supra.

The Eighth Circuit, moreover, has denied recovery as a

matter of law in federal emotional distress claims where there

was insufficient evidence of mental anguish:

An award of damages for emotional distress must be

supported by competent evidence of “genuine injury.”

While a compensatory damage award may be based

solely on plaintiffs own testimony, [the plaintiff's}

testimony did not identify and describe the kind of

severe emotional distress that warranted...

award....{Plaintiff] suffered no physical injury, she

was not medically treated for any psychological or

emotional injury, and no other witness corroborated

any outward manifestation of emotional distress.

Forshee, 178 F.3d at 531. Tendered Instructions A-B set forth

these requirements in a simple, brief and impartial matter and

should have been given to the jury. It set forth each of the

elements which must be present for an individual to recover

for emotional distress due to fear of cancer in a

straightforward common sense manner that could be

understood by a jury composed of ordinary people. This is

particularly true since the instrwctions submitted, particularly

Instructions 7 and 9, allow the jury to assume that any

expression of fear is an injury that is compensable in itself. By

failing to give either of these instructions, the Court gave the

jury absolutely no guidance on an issue that the United States

Supreme Court has stated is a very complicated question. The

Court’s refusal to give these instructions severely prejudiced

Union Pacific and requires a new trial.

45a

2. Instructions C and 8.

The Court also erred in rejecting Union Pacific’s Tendered

Instruction C and giving Instruction No. 8 based upon MAI

32.07(B). Trial Tr. at 764, lines 7 - 17. Instruction C stated:

Instruction No. C

In your verdict you must access a percentage of fault to

plaintiff whether or not defendant was partly at fault if you

believe:

First, plaintiff continued to smoke after being advised by

a physician to stop smoking, and,

Second, plaintiff was thereby negligent, and

Third, such negligence resulted in whole or in part in

injury to plaintiff.

Instruction No. 8, which was give by the Court, stated:

Instruction No. 8

In your verdict you must access a percentage of fault to

plaintiff whether or not defendant was partly at fault if you

believe:

First, plaintiff continued to smoke after being advised by

a physician to stop smoking, and,

Second, plaintiff was thereby negligent, and

Third, such negligence of plaintiff directly contributed to

cause his injury.

46a

The Court erred in giving Instruction No. 8 because

paragraph three of MAI 32.07(B) misstates the applicable

causation standard under the FELA. The approved version of

MAI 32.07(B) states a causation standard of “directly

contributed to cause” while the approved version of MAI

24.01, which was given by the Court, states a causation

standard of “contributed in whole or in part.” The FELA

imposes a pure comparative fault system, with the same

standard of causation governing both the defendant’s and the

plaintiffs fault. See 45 U.S.C. §§ 51 and 53; Fashauer v. New

Jersey Transit Rail Operations, Inc., 57 F.3d 1269, 1282-83

(3d Cir. 1995); Gavagan v. United States, 955 F.2d 1016,

1019 n.7 (5 Cir. 1992) (“[T]he same general negligence. .,

and causation standards apply to both employer and employee

in Federal Employers’ Liability Act...cases.”). Thus,

Instruction No. 8 and MAI 32.07(B) misstate the law by

imposing a much higher standard of causation (“directly

contributed”) upon the defendant than the standard: imposed

upon the plaintiff in Instruction No. 7 and MAI 24.01

(“contributed in whole or in part”). The Court’s submission

of Instruction No. 8, instead of Instruction C, severely

prejudiced Union Pacific and misstated the law. Accordingly,

Union Pacific is entitled to a new trial.

3. Instructions D and E.

The Court also erred in rejecting Union Pacific’s

Tendered Instructions D regarding mitigation of damages.

Trial Tr. at 764, lines 18-23. Instructions D and E stated:

Instruction D

If you find in favor of plaintiff, you must find

plaintiff failed to mitigate damages if you believe:

47a

First, plaintiff continued to smoke cigarettes after the

diagnosis of his alleged condition,

Second, plaintiff thereby failed to use ordinary care,

and

Third, plaintiff thereby sustained damage which would _

not have occurred otherwise.

Instruction E

If you find plaintiff failed to mitigate damages as

submitted in Instruction Number D, in determining

plaintiff's total damages you must not include those

damages which would not have occurred without such

failure.

“Under federal law an employee has a duty to mitigate

damages” Hawkes III v. Norfolk & Western Railway

Company, 876 S.W.2d 705, 706 (Mo. App. 1994). A

“plaintiff's failure to mitigate damages is an affirmative

defense which must be pleaded and proved by defendant, and

defendant is entitled to a separate instruction on mitigation of

damages if supported by substantial evidence.” MAI

32.07(A), Committee Comment (1996 New)(citing Kauzlarich

v. Atchison, Topeka and Santa Fe Ry. Co., 910 S.W.2d 254

(Mo. banc 1995). Union Pacific asserted affirmative defenses

based upon failure to mitigate damages. See Answer, Am.

Answer. Plaintiff, moreover, continued to smoke after

purportedly being diagnosed with asbestosis. Trial Tr. at 209,

lines 20-22. Just like a FELA plaintiff has a duty to mitigate

damages by returning to gainful employment, a FELA

plaintiff seeking damages for emotional distress for fear of

cancer has a duty to lessen or mitigate that fear and,

ultimately, the chances of developing cancer by refraining

48a

from those activities which may increase that individual’s

likelihood of developing cancer. Thus, a mitigation of

damages instruction was appropriate in this case. Kauzlarich,

910 S.W.2d at 258. Accordingly, Union Pacific is entitled to

a new trial

4. Instruction F.

Instruction F, the withdrawal instruction, also should have

been given. Trial Tr. at 764, line 24 - 765, line 3. The Court

granted Union Pacific’s Motion in Limine to exclude any

evidence or testimony regarding lost wages and reduced

earning capacity. See Def. Union Pacific Railroad Company’s

Mot. in Limine regarding Lost Wages, Reduced Earning

Capacity and Pain and Suffering. Instruction F stated:

Instruction No. F

The issues of the plaintiff's past loss of wages and

benefits and future loss of wages and benefits are

withdrawn from the ease and you are not to consider

such issues in arriving at your verdict.

Plaintiff presented no real evidence of past or future lost

wages or reduced earning capacity. However, Plaintiff

testified that he hoped to work five (5) more years, until age

60 “God willing,” Trial Tr. at 185, lines 18-21.

“Withdrawal instructions should be given when there is

evidence, which might mislead the jury in its consideration of

the case as pleaded and submitted.” Arnold v. Ingersoll-Rand

Company, 908 S.W.2d 757, 764 (Mo. App. 1995), “Where

there is evidence in the case which might raise a false issue,

it is reversible error for the trial court to fail to give an

instruction withdrawing such evidence from the jury’s

49a

consideration.” Harris v. Washington, 654 S.W.2d 303, 307

(Mo. App. 1983). In Dillard v. Atchison, Topeka and Santa

Fe Railway Company, the Court held in a FELA action that

the trial court committed reversible error in failing to give a

withdrawal instruction where there was no evidence of future

loss of wages. 882 S.W.2d 211, 214 (Mo. App. 1994). In

this matter, the Court’s failure to give Instruction F

prejudiced Union Pacific because his testimony that he hoped

to work until age 60 “God willing,” left the jury with the

false impression that Plaintiff may not be able to work until

age 60 because of his purported asbestos and sought damages

for lost wages and reduced earning capacity, even though

Plaintiff presented no evidence of such damages and the Court

granted Union Pacific’s motion in limine on this issue. See

Harris, 654 S.W.2d at 307; Dillard, 882 S.W.2d at 214.

5. Conclusion.

Based on the foregoing, The Court should order a new

trial based upon these instructional errors. Sam Snead School

of Golf v. Anchor Casualty Company, 386 S.W.2d 412, 416

(Mo. 1965); Mal Spinrad of St. Louis, Inc. v. Karman, Inc..,

690 S.W.2d 460, 465 (Mo. App. 1985); Kauzlarich, 910

S.W.2d at 258; Harris, 654 S.W.2d at 307; Dillard, 882

S.W.2d at 214.

C. The Admission of Testimony concerning the

findings of Richard B. Levine, M.D. and M.

Sundarem, M.D. Unduly Prejudiced Union Pacific

and Union Pacific should have been allowed to

argue an Adverse Inference based upon their

Failure to Testify

Throughout the trial of this matter, Plaintiff and his

medical expert, Dr. Jill Ohar, referred to conclusions reached

50a

by Richard B. Levine, M.D. and M. Sundarem, M.D. Both

Dr. Levine and Dr. Sundarem are purportedly B-Readers or

individuals with specialized training to score abnormalities on

chest films that are related to industrial exposure. These

alleged experts were engaged by Plaintiff's counsel for

purposes of this litigation. Union Pacific, therefore, could not

contact either Dr. Levine and Dr. Sundarem to inquire as

their opinions and conclusions concerning Plaintiff's alleged

condition nor the basis there of prior to the production of

these witnesses for a deposition by Plaintiff. See Missouri

Supreme Court Rule 56.01(b)(4)(b). Plaintiff, however, never

produced either Dr. Levine or Dr. Sundarem for a deposition

in this matter despite Union Pacific’s repeated requests to

depose them. See Def. Union Pacific Railroad Company’s

Mot. in Limine to Exclude the Trial Test. of Any Expert

Witness Offered by Pl. other than Jill Ohar, M.D. and to

Strike the Expert Reports of Richard B. Levine and M.

Sundarem, M.D. The Court, moreover, denied Union

Pacific’s request to bar references to these individuals. /d.

Settled Missouri case law supports the exclusion of expert

witnesses who have not been produced for a deposition prior

to trial. See Wilkerson v. Prelutsky, 943 S.W.2d 643, 648-50

(Mo. banc 1997); Goede v. Aerojet General Corporation 143

S.W.3d 14, 23-24 (Mo. App. E.D. 2004); Ellis v. Union

Electric Company, 729 S.W.2d 71, 75-76 (Mo. App. E.D.

1987); Koonee v. Union Electric Company, 831 S.W.2d 702,

704 (Mo. App. E.D. 1992). In Ellis v. Union Electric

Company, the Missouri Court of Appeals for the Eastern

District noted that “[c]ompetent trial preparation requires

identification of an adverse party’s expert in sufficient time

before trial to allow for investigation of the qualifications of

the proposed expert, his opinions, conclusions and the basis

therefor...[and] his relationship with the parties or their

attorneys... among other matters,” 729 S.W.2d at 75. The

3 Sla

logical outgrowth of these decisions is that references to other

expert witnesses and their conclusions should be also excluded

from evidence at trial where the adverse party does not have

an opportunity to inquire into the reasons for the expert’s

opinions and conclusions.

Here, Plaintiff referred to the finding of these individuals

numerous times during the course of trial and admitted both

reports into evidence. Trial Tr. at 85, lines 17-19, 242, lines

36, 494, lines 17-25, 495, 1-10, 605, lines 13-23, 606, lines

10-14 — 22-24, 759, lines 21-23, 760, lines 7-15, 779, lines

17-21, 806, lines 20-23; 2/8/05 Videotaped Dep. of Jill Ohar,

M.D. at 15, line 25-16, line 19, 17, lines 2-7, 34, lines 1-8,

41, lines 10-14. Plaintiff's repeated references to Dr. Levine’s

and Dr. Sundarem’s diagnosis of asbestosis in Plaintiff

prejudiced Union Pacific by implying to the jury that they

were qualified to render the opinions set forth in their reports

and that their conclusions were otherwise competent and

reliable. In fact, Union Pacific never had an opportunity to

cross-examine either physician on their qualifications or

opinions. This testimony, therefore, should have been

excluded. Hawley 452 S.W.2d at 609, 612; Rogers 522

S.W.2d at 639.

In the alternative, Union Pacific should have been allowed

to argue an adverse inference based upon their failure to

appear. Union Pacific, in closing, argued that the jury had

heard the names of “two other doctors... a Doctor Levine,...

and a Dr. Sundarem ... but you hadn’t heard them walk up

here --.” Trial Tr. at 796, lines 6-14. The Court sustained

Plaintiff's objection on the ground that it was an improper

adverse inference argument. /d. at 796, lines 12-15.

“(Cjounsel is given wide latitude to suggest inferences from

evidence on closing argument.” Moore v. Missouri Pacific

Railroad Company, 825 S.W.2d 839, 844 (Mo. banc 1992).

52a

“Where a witness is not equally available to both parties, it is

prejudicial error for the trial court to prevent the party to

whom the witness is not equally available from requesting the

jury to draw an adverse inference from the failure of the

opposing party to produce the witness.” Piper v. Union

Pacific Railroad Company, 847 S.W.2d 907, 910 (Mo. App.

1993). In Piper, the Missouri Court of Appeals held that it

was error to deny Missouri Pacific the opportunity to invoke

the adverse inference rule as to a plaintiff's treating physician

who initially diagnosed his heating loss, even though his

records were before the jury. /d. at 911.

Neither Dr. Levine or Dr. Sundarem were available to

Union Pacific until produced by Plaintiff. There is always risk

of making tactical decisions about trying a lawsuit. By failing

to produce these experts for deposition and failing to bring

them to trial, plaintiff ran the risk of hearing an adverse

inference argument. That is fair and the Court’s refusal to

allow Union Pacific to make that argument simply was not.

Accordingly, Union Pacific should have been allowed to

invoke the adverse inference rule in its closing, as in Piper,

based upon Plaintiff's failure to produce for deposition either

of these physicians. /d.

A new trial, therefore, must be granted because Union

Pacific was prejudiced by the references to and admissions

into evidence of the reports of Drs. Levine and Sundarem and

should have been able to invoke the adverse inference rule in

its closing. Hawley, 452 S.W.2d at 609, 612; Rogers, 522

S.W.2d at 639; Piper, 847 S.W.2d at 911.

53a

D. Union Pacific was prejudiced by the Omission of

References to Medication taken by Plaintiff for

Depression

Union Pacific was also prejudiced by the omissions and

references to antidepressant medications taken by plaintiff

prior to his diagnosis of asbestosis. At trial Union Pacific

attempted to offer portions of Dr. Carmichael’s deposition

concerning Plaintiff's use of antidepressant medications into

evidence. Trial Tr. at 336, line 5-337, line 15. See 11/9/04

Deposition of Kim Carmichael, M.D. at 16, lines 12-20

attached hereto as Exhibit B and incorporated herein by

reference. “All facts and circumstances which are relevant to

the issues of the case are admissible, unless their exclusion is

required by some established principle of evidence.”

McFadden v. McFadden, 509 S.W.2d 795, 7981 (Mo. App.

1974). “Evidence is relevant if it tends to prove or disprove

a fact in issue or if it tends to corroborate evidence which is

relevant and which bears on the principal issues.” Reed v.

Rope, 817 S.W.2d 503, 510 (Mo. App. 1991). Here,

testimony concerning Plaintiff's taking of antidepressants was

clearly relevant as he placed his mental health status at issue

by seeking damages for emotional distress based upon fear of

cancer and mentioned these problems in his opening statement

and testimony. Trial Tr. at 102, lines 7-8, 198, line 24-199,

line 7, 204, lines 7-19, 225, lines 8-10, 226, line 6, 227, line

111, 228, lines 21-23. Any testimony concerning Plaintiff's

current mental health problems was relevant to show that

Plaintiff's purported emotional distress damages were caused

by other factors, potentially prior to his asbestosis diagnosis.

Union Pacific was severely prejudiced by the exclusion of this

evidence because it did not have the opportunity to argue

alternative causes of Plaintiff's purported damages to the jury.

See Overtrop v. Bi-State Redevelopment Corp., 521 S.W.2d

488, 492 (Mo App. 1975); Yerington v. La-Z-Boy Inc., 124

54a

S.W.3d. 517, 522-23 (Mo. App. 2004). Accordingly, the

Court should grant a new trial based upon the exclusion of

this testimony. /d.

E. Error in limiting testimony regarding inspection of

the building located at 210 N. 13" Street

The Court also erred by excluding any testimony by

Union Pacific’s industrial hygiene experts, Larry Liukonen

and Frank Weir, Ph.D., regarding their opinions following

their inspection of the St. Louis office building other than that

their previous opinions had not changed. Trial Tr. at 339, line

4-342, line 11. Although Mr. Liukonen and Dr. Weir were

entitled to testify that their opinions had not changed since

their inspection, they should have been entitled to offer

specific testimony concerning their observations during the

inspection. This evidence is clearly relevant as “it tends to

prove or disprove a fact in issue or tends to corroborate

evidence which is relevant and bears on the principal issue.”

Reed, 817 S.W.2d at 510. Mr. Liukonen and Dr. Weir’s

opinions derived from their inspection of the building

certainly fall within this category as it addresses the unfettered

lay testimony offered by Plaintiff and his co-workers

concerning the presence of asbestos-containing materials in

this building. The exclusion of this testimony prejudiced

Union Pacific by depriving it of an opportunity to disprove

the unfounded prejudicial testimony offered by Plaintiff's lay

witnesses. Accordingly, because Union Pacific was prejudiced

by the exclusion of this expert testimony, it is entitled to a

new trial. See Overtrop, 521 S.W.2d at 492; Yerington, 124

S.W.3d at 522-23.

5Sa

F. Plaintiff's Questions regarding the knowledge of

“Railroad Doctors” in 1935

It was plain error such that Union Pacific is entitled to a

new trial, for Plaintiff to question Dr. Frank Weir, Union

Pacific’s industrial hygiene expert, regarding the knowledge

of railroad doctors in 1935. In accordance with leading FELA

case law, a plaintiff must establish as a foundation either that

Union Pacific had actual knowledge of the contents of such

medical and scientific state-of-the-art evidence, or, as a

member of the railroad industry, can reasonably be deemed to

have had constructive knowledge of such evidence before or

during the Plaintiff's railroad employment, before such

evidence can come in. See CONRAIL v. Gottshall, 512 U.S.

532 (1994); Gallick v. Baltimore and Ohio R.R. Co., 372

U.S. 108 (1963); Williams v. National Railroad Passenger

Corp., 161 F.3d 1059 (7" Cir. 1998); Bagley v. CSX Transp.

Inc., 465 S.E.2d 706 (Ga. App. 1995). In questioning Dr.

Weir regarding what “railroad doctors” knew in 1935

concerning pneumoconiosis, Plaintiff did not establish that

Union Pacific or its physicians had such knowledge. Trial Tr.

at 752, line 2-754, line 4. This prejudiced Union Pacific by

implying that it had knowledge of asbestosis as early as 1935

without any evidence of such knowledge. The Court,

therefore, must grant Union Pacific a new trial because of this

error.

G. The Court Erred in allowing Plaintiff to Introduce

the Deposition of Dr. Herbert Shapiro in his case

In Missouri, “faJ]s a general rule the introduction of a

deposition or a part thereof by a party for any purpose other

than contradiction or impeachment makes the deponent the

witness of the party introducing it.” Eickmann v. St. Louis

Public Service Company, 323 S.W.2d 802 (Mo. 1959). Union

56a

Pacific took Dr. Shapiro’s deposition for use at trial. 3/28/05

Videotaped Deposition of Herbert Shapiro, M.D. at 5, line

19-22 attached hereto as Exhibit C and incorporated herein by

reference. The Court should not have allowed Plaintiff to play

Plaintiff’s cross-examination in his case because it allowed

Plaintiff's counsel to ask leading questions in violation of

basic rules of evidence while at the same time transforming

Dr. Shapiro from Union Pacific’s witness to Plaintiff's

witness.

H. The Court should Order a New Trial because the

Verdict is Against the Weight of the Evidence or, in

the alternative, a Substantial Remittitur

Missouri Rule of Civil Procedure 78.02 provides that a

court may order a new trial where the verdict is against the

weight of the evidence. See Carpenter v. Chrysler

Corporation, 853 $.W.2d 346, 359 (Mo. App. 1993).

The Eastern District of the Missouri Court of Appeals

recently addressed a case where it defined the circumstances

that either justify or require a newtrial or remittitur. In /nce

v. Money’s Bldg & Development, 135 S.W.3d 475, 478-79

(Mo. App, E.D. 2004), the court distinguished between

verdicts considered “grossly excessive” and those that are

“merely excessive”:

A jury’s verdict for an amount not supported by the

evidence can be either grossly excessive or merely

excessive. A grossly exeessive verdict indicates bias

and prejudice on the part of the jury, and requires a

new trial to be ordered. In contrast, a merely

excessive verdict occurs when a jury made an honest

mistake in weighing the evidence as to the nature and

extent of the injury, in fixing the damages, and in

57a

subsequently awarding a disproportionate amount of

money. Such a mistake can be corrected without a new

trial by requiring a remittitur of a portion of the

amount awarded.

Id. at 135 S.W.3d at 478 (emphasis added). Thus, according

to the /nce decision, a grossly excessive verdict requires a

new trial and a “merely excessive” verdict can be corrected

by a remittitur. /d.

Union Pacific respectfully submits that the jury’s

$300,000,00 verdict was grossly excessive, even when

reduced by Plaintiff's 20% comparative fault. The only

evidence of damages offered by Plaintiff were emotional

distress damages based upon his alleged fear of developing

cancer. The Court erroneously denied Union Pacific’s Motion

in Limine on this issue. Plaintiff has not suffered lost wages

or incurred medieal expenses. Evidence of damages for pain

and suffering was non-existent and should have been excluded

despite the Court’s erroneous ruling on Union Pacific’s

motion in limine regarding this issue.

As set forth above, claims for emotional distress damages

for fear of cancer have very specific proof requirements set

forth by the United States Supreme Court. Plaintiff did not

identify or describe any kind of emotional distress at all. He

produced no evidence that he suffered physical injury. He

admitted that he was not medically treated for any

psychological or emotional injury. No other witness

corroborated any outward manifestation of emotional distress:

in fact, Dr. Shapiro testified that Plaintiff was “stoic” when

he learned that he had sarcoma, a cancer completely unrelated

to asbestos exposure. 3/28/05 Deposition of Dr. Herbert

Shapiro at 13, lines 14-19, 14, lines 10-19, 18, line 21-19,

line 1, 21, line 11-22, line 1, 24, lines 2,11, Exhibit C.

58a

Plaintiff's testimony that he “worries” about developing

asbestos-related cancer, standing alone, is utterly insufficient

for an award of emotional distress damages as contemplated

by Ayers. Indeed, the Ayers court cited with approval the case

of Smith v. A. C. & S., Inc., 843 F.2d 854, 859 (Sth Cir.

1988), quoting the holding of the case as stating “general

concern for [one’s] future health” is held insufficient to

support recovery for an asbestosis sufferer’s fear of cancer. 4

Plaintiff testified to no more than a “general concern.”

No one will ever know exactly how the jury arrived at its

$300,000.00 verdict. The most logical explanation is that the

jury heard the testimony about the unsubstantiated exposures

to asbestos Plaintiff purportedly endured and decided to

compensate Plaintiff with a gross mount of money for his

“general concerns” about his future health. Plaintiffs’

damages, however, should be limited to the risks associated

with the purported asbestos exposure, exclusive of those risks

associated with cigarette smoking. See Dafler v. Raymark

Industries, Inc., 259 N.J.Super. 17, 35, 611 A.2d 136, 145-

46 (1992); Brisboy v. Fibreboard Corporation, 429 Mich.

$40, 552, 418 N.W.2d 650, 655 (1988). Dr. Bernard Gee

testified that Plaintiffs risk of developing cancer increased

exponentially because he was a smoker. Trial Tr. at 476, lines

7-13. Union Pacific should not be liable for these damages

and the Court should have instructed it as such and

erroneously denied Union Pacific’s motion in limine on the

synergistic effect of smoking. Regardless of the reason, a

$300,000.00 verdict, even reduced to $240,000.00 is grossly

excessive. This grossly excessive verdict requires a new trial.

This Court has the discretion and should exercise it to order

a new trial because the damages assessed were not based upon

the evidence.

59a

If the Court does not order a new trial, it should remit the

verdict substantially. In applying the remittitur statutes courts

look to a number of factors: (1) loss of income, both present

and future; (2) medical expenses; (3) plaintiff's age; (4) the

nature and extent of plaintiff's injuries; (5) economic

considerations; (6) awards given and approved in comparable

cases; and (7) the superior opportunity for the jury and the

trial court to evaluat< plaintiffs injuries and other damages.

Othman v. Wal-Mart Stores, Inc., 91 S.W.3d 684, 687 (Mo.

App. E.D. 2002). Ultimately, the test for remittitur is

determining an amount to fairly and reasonably compensate

the plaintiff for the injuries sustained. Jd.

Five of the factors stated above strongly suggest a

substantial remittitur. The first factor is loss of income.

Plaintiff has not submitted any evidence of lost income-

present or future. He plans to continue working for Union

Pacific until age 60. Trial Tr. at 185, lines 18-21. The second

factor is medical expenses - Plaintiff had none. Plaintiff's age

of 55 is not really important; many plaintiffs are younger or

older. The nature and extent of Plaintiff's injuries are simply

not the type of injuries that support a $300,000.00 verdict. He

still goes to work everyday and, more importantly, he works

out- rigorously by his own admission, an average of five (5)

days per week. Trial Tr. at 205, lines 8-10, 206, lines 3-11.

Plaintiff also testified to no more than a “general concern”

about the possibility of developing cancer.

The sixth factor, awards given and approved in

comparable cases, is not the sole test for remittitur, however,

it certainly favors one. Hatch v. V.P. Fair Foundation, 990

S.W.2d 126, 141 (Mo. App. 1999). Recently, in Quarles v.

Advocate Mines, Ltd., a jury awarded $50,000.00 for fear of

cancer to an insulator who claimed he suffered from

asbestosis and pleural disease. See 6 Trials Digest 8" 1, 2005

60a

WL 288657 (Cal. Superior 2005). The fact that this case

involves a plaintiff with no significant industrial exposures

cries out for a substantial remittitur.

Based on the foregoing, the verdict is against the weight

of the evidence, or at the very least, excessive in light of the

evidence, and a new trial and/or substantial remittitur should

be ordered.

CONCLUSION

For the reasons stated herein, the Court must grant a new

trial, or in the alternative, a substantial remittitur.

Respectfully submitted,

THOMPSON COBURN LLP

By: /s/Tracy J. Cowan

Tracy J. Cowan, #40229

Karen M. Volkman, #49245

One US Bank Plaza

~ St. Louis, Missouri 63101

314-552-6000

FAX 314-552-7000

and

Randall A. ‘ordan, Pro Hac Vice

Mary Helen Moses, Pro Hac Vice

Jordan & Moses

1804 Frederica Road, Suite C

St. Simons Island, GA 31522

Attorneys for Defendant

Union Pacific Railroad Company

6la

EXHIBIT A

IN ‘THE CIRCUIT COURT OF MISSOURI OF THE

CITY OF ST. LOUIS STATE OF MISSOURI

Cause No. 022-337

Division No. 11

[Taken February 8, 2005]

Timothy P. Hedgecorth,

Plaintiff,

¥.

Union Pacific Railroad Company,

Defendant.

Nee Nee ee Ne eee ee”

The Videotaped Deposition of JILL OHAR, M.D.

taken by Counsel for the Defendant

Winston-Salem, North Carolina

February 8, 2005

Reported by: Stephanie Fischer

Court Reporter

Notary Public

State of North Carolina

62a

[Page 53]

A. I don’t know why the CT scans were done, but I think

that could be a safe assumption.

Q. The cancer that he’s been diagnosed with already has

nothing to do with asbestos, dues it?

A. That’s correct.

Q. Just -- I’m going to go back into something that we

talked about, but I just want to clarify.

As to any of the claimed exposures that Mr.

Hedgecorth has, you have no independent facts to contirm or

refute any of those exposures?

MR. HAGERTY: Object. Asked and answered.

A. I didn’t go to work with him those days, no. And that

would be the only way I could independently --

BY MR. COWAN:

Q. And you don’t know the content of any of the dust that

he would complain about on his desk?

A. No, sir. I would have to rely on an industrial hygienist

to do that.

Q. And if there were air-quality reports prepared by

Union Pacific assessing the air quality of the building, would

that be of any significance to you? Or would it not matter to

you since it’s not really your background anyway?

63a

A. Number 1, it’s not my background but, Number 2, if

the air quality wasn’t where he was sitting, I don’t think it has

a lot relevance to the patient.

AK KE

64a

E IT B

IN THE CIRCUIT COURT

TWENTY-SECOND JUDICIAL CIRCUIT

ST. LOUIS CITY

[Taken November 9, 2004]

Ron Goacher, James Devereaux

Timothy P. Hedgecorth,

Plaintiffs,

)

)

)

)

v. )

‘ }

Union Pacific Railroad Company, )

Defendant. )

)

Deposition of DR. KIM CARMICHAEL

November 9, 2004

TINA M. STUMPF, RPR, CSR

ILLINOIS CSR # 084-003469

GORE, PERRY, GATEWAY & LIPA REPORTING

COMPANY

515 OLIVE STREET, SUITE 700

ST. LOUIS, MISSOURI 63101

(314) 241-6750 1-800-878-6750

[Page 10]

takes Lozol, which is a diuretic which helps to decrease his

calcium excretion in his urine; and he also takes other

medication, a citrate type of medication to keep him from

6Sa

forming kidney stones. He takes a potassium pill because you

lose potassium with the dieretic. He takes Allopurinol, which

is a medicine that lowers the uric acid. That also helps to treat

his kidney stones. He has taken Paxil and Alprazolam, which

are two medications that he’s taking for some chronic mild

depression and they seem to help pretty well.

Q Is he still on some type of antidepressant medication?

A To my best recollection, but not having that record in

front of me right now, I can’t say for absolutely sure, but I’m

quite sure he is. And he also takes a medication for erectile

dysfunction. He’s tried Viagra and Levitra and Cialis; and

whichever one he’s taking now, I don’t immediately recall,

but he’s taking that.

Q I noticed references in the medical to sinus problems

or rhinitis?

A Uh-huh.

Q Is he currently, or at least as far back as the medical

records go, taking any types of

*e# KK

66a

EXHIBIT C

{Taken March 28, 2005}

Timothy P. Hedgecorth,

Plaintiff,

v.

Union Pacific Railroad Company,

Defendant.

ee ee

Deposition of DR. HERBERT SHARIPO

March 28, 2005

[Page 13]

cancerous?

A Sarcoma means cancer, yes.

Q So Mr. Hedgecorth, in effect, was diagnosed with

some type of cancer at that time?

A That’s correct.

Q Okay. Do you recall how long after you received the

pathology when you met with Mr. Hedgecorth and informed

him of the diagnosis?

A Well, the surgery was done on the 13th of May. For

reasons which I am not clear at this point he didn’t return

67a

until June 26th, at which time I had the conversation with him

regarding the diagnosis.

Q When you indicated to Mr. Hedgecorth that the results

indicated the mass was cancerous, what was his reaction?

A Well, I have to say that Mr. Hedgecorth, throughout

the course of treatment from beginning to end, was rather --

I would say rather stoic. He accepted the diagnosis and the

recomumended treatment without any great emotional response

that I can recall. He said, Yes, okay, fine, we’ll do it, that

type of response, and then went ahead and did it.

Q Is there anything about this particular cancer that -- let

me rephrase this. Is this the type of cancer -- the type of

cancer that Mr. Hedgecorth was diagnosed with, is that the

type of cancer that can metastasize and spread to other

portions of a person’s body?

A Absolutely.

Q Okay. Did you explain that to Mr. Hedgecorth?

A Yes.

Q Okay. And, again, would your characterization of his

reaction be the same when you explained that possibility to

him?

A Well, don’t forget, it’s been a while since I’ve seen

him, recall every bit -- my overall impression of Mr.

Hedgecorth’s response to his circumstances and to my

recommendations were one of stoicism, of acceptance, and

certainly there was no great anguish or angst or crying out or

whatever about his diagnosis.

68a

Q And what was the planned course of treatment to treat

the cancer that had been diagnosed?

A Well, the -- initially the tumor, when it recurred,

wasn’t known for a cancer. As a matter of fact, it took quite

a bit of pathological

* * * K O*

[Page 18}

obviously I didn’t give it to him so I didn’t discuss how it was

going to be administered. I was one who recommended that

once his wound is healed that he should proceed on with

radiation therapy.

Q So you recommended it as a further course of

treatment?

A Yes. Yes.

Q When you recommended this to Mr. Hedgecorth, did

he ever indicate that he was concerned that radiation therapy

may -- let me rephrase this. When you recommended to Mr.

Hedgecorth that he undergo radiation therapy, did he ever

indicate to you that he had been diagnosed with asbestosis and

was concerned that the radiation therapy could somehow

exacerbate what he alleges is his condition?

A Again, I have -- I have-- he may have mentioned it. I

have no recollection and as far as I know, I did not record that

in my records, so the answer is no.

Q So, did he have any concerns whatsoever about

undergoing radiation therapy?

69a

A Ido not believe so. As I said, I think that he managed

the whole thing in a rather stoic fashion without explaining

too much about anything else.

Q Okay. Can we mark this as Exhibit B? It’s previously

been marked as Hedgecorth 000575 through 577. I have

another one around here, but -- here it is.

MR. HAGERTY: _ Thank you.

(Defendant’s Deposition Exhibit B marked for

identification. )

Q (By Ms. Volkman) The document that I’ve just

handed you, was that signed by you, Dr. Shapiro?

A Yes, it is.

Q And could you identify that document for me?

A This is a history and physical written out by the

surgical resident at the time. And I simply put my approving

signature on it.

Q With regard to Mr. Hedgecorth’s--and let me back up

a second. This was -- is dated on June 27, 2003, correct?

A That’s correct.

Q And that was the day of Mr. Hedgecorth’s re-

excision? |

A That’s correct.

Q Okay. And with regard to his mental state

70a

* eK K€

{Page 21]

exams.

Q So over the course of the next almost eight or ten

months, you saw him five more times, would that be correct?

A That’s correct.

Q Okay. And during those visits, did Mr. Hedgecorth

have any concerns about his -- the way his treatment was

progressing?

A_ No, his behavior was consistent with what I’ve already

said.

Q Did he ever indicate to you during those visits or any

prior visits that he had fears or concerns about his condition

getting worse?

A You mean the tumor condition or --

Q His overall health, the tumor spreading.

A That’s not the kind of thing I necessarily would put in

my medical records. I tend to stay focused on the surgical

status and that wasn’t recorded in my records. But, again, I

will say Mr. Hedgecorth’s behavior was rather stoic. I mean,

I’m not going to say that Mr. Hedgecorth was not upset. I’m

just saying how he outwardly appeared when he was in the

office.

Tila

Q There was no expression of being upset to you, is that

correct?

A No, no.

Q Did he ever indicate that he was losing sleep or

suffering from insomnia because he was concerned about the

myxofibroma diagnosis?

A Again, I don’t have any recollection of that. He may

have said that. It’s the kind of thing I probably would not

have necessarily recorded in my records.

Q But to the best of your recollection?

A To the best of my knowledge I don’t have any

recollection that he said that.

Q Did he ever indicate that he was losing weight because

he was concerned about the cancer spreading or getting

worse?

A Ihave no recollection of that either

Q Doyou have any recollection of him stating to you that

he would -- was becoming physically ill, perhaps having

nausea or cold sweats because he had concerns about his

cancer diagnosis and reoccurrence or spreading of the

disease?

A Ihave no recollection of that either.

Q Do you have any recollection that he suffered from

any type of stress related condition because of concerns about

his cancer diagnosis of the -

- ?

72a

* * *K *K *

[Page 24]

A His partner, but I don’t remember his name.

Q Okay. After the excision in June of ‘03, was it

possible that a mass or tumor could grow back? Is there a

possibility of reoccurrence?

A Oh, absolutely.

Q And you talked to Mr. Hedgecorth about that?

A Yes.

Q Okay. And, again, would you describe his reaction as

being stoic?

A_ Yes, I would.

Q Okay. Do you have any reason to believe that Mr.

Hedgecorth’s ~ the myxofibroma, that cancer was in any way

related to asbestos exposure?

A_ Ido not have any reason to believe that it is related to

it. ,

Q Okay. What causes this type of cancer?

A 1don’t know. I don’t think anybody has an answer for

that.

73a

Q Could the prior lesions that he had on the back and the

buttocks which were removed in ‘02, could those have been,

in your opinion, caused by asbestos exposure?

A No.

Q Looking at your records that we received,

** KK *

74a

APPENDIX E

MISSOURI CIRCUIT COURT

TWENTY-SECOND JUDICIAL CIRCUIT

(ST. LOUIS CITY)

Cause No. 022-337

Division No. 11

[Filed April 19, 2005]

Timothy P. Hedgecorth, )

Plaintiff, )

)

v. )

)

Union Pacific Railroad Company, )

Defendant. )

)

JUDGMENT

This action came before this Court and a Jury. The parties

appeared in person and by their respective attorneys. The

issues have been duly tried and the Jury rendered its

verdict(s).

VERDICT

Whereas, on the claim of _Timothy Hedgecorth_for

personal injuries , against Union Pacific R. Co. , [the Jury

75a

found in favor of the (Plaintiff), (Defendant)] (and/or) [the

Jury assessed the percentages of fault as follows:]

Defendant UPR. Co.

Plaintiff Timothy Hedgecorth

The Jury found the total damages of (Plaintiff), (Defendant),

disregarding any fault on the part of (Plaintiff), (Defendant),

to be $300,000 Dollars and 00 Cents.

WHEREFORE, it is hereby ordered and adjudged that

Plaintiff Timothy Hedgecorth have and recover of:

Union Pacific R. Co. $240,000

[Cost of this action to be taxed against the (Plaintiff(s)),

(Defendant(s))} or [Cost waived].

/s/Patrick Hagerty _ 32991

Attorney for Plaintiff, Bar#

701 Market Ste 800

Address

314-241-5670

Phone #

/s/Tracy J. Cowan #40229

Attorney for Defendant, Bar#

1 U.S. Bank Plaza

Address

314-552-6138

Phone #

76a

SO ORDERED:

/s/Mark H. Neill

Judge, Division No. 11

Judge No. 24138

T7a

APPENDIX F

VERDICT

Note: Complete the following paragraph by filling in the

blanks as required by your verdict. If you assess a

percentage of fault to any of those listed below, write

in a percentage not greater than 100%, otherwise

write in “zero” next to that name. If you assess a

percentage of fault to any of those listed below, the

total of such percentages must be 100%.

On the claim of plaintiff Timothy Hedgecorth for

personal injury, the we, the undersigned jurors, assess

percentages of fault as follows:

Defendant Union Pacific 80% (zero to 100%)

Railroad Company

Plaintiff Timothy 20% (zero to 100%)

Hedgecorth

TOTAL 100% (zero OR 100%)

Note: Complete the following paragraph if you assessed a

percentage of fault to defendant:

We, the undersigned jurors, find the total amount of

plaintiff's damages, disregarding any fault on the part of

plaintiff to be $ 300,000 (stating the amount).

Note: All jurors who agree to the above must sign below.

i

/s/

/s/

/s/

/s/

/s/

/s/

78a

/s/

/s/

/s/

/s/

79a

APPENDIX G

Instruction Number 7

In your verdict you must assess a percentage of fault to

defendant whether or not plaintiff was partly at fault if you

believe:

First, defendant failed to provide reasonably safe

conditions for work, and

Second, defendant was thereby negligent, and

Third, such negligence resulted in whole or in part in

injury to plaintiff.

MAI 24.01 (modified by 37.01)

Offered by Plaintiff

80a

APPENDIX H

Instruction Number 9

If you assess a percentage of fault to defendant, then,

disregarding any fault on the part of plaintiff, you must

determine the total amount of plaintiff's damages to be such

sum as will fairly and justly compensate plaintiff for any

damages you believe he sustained and is reasonably certain to

sustain in the future as a result of the occurrence mentioned

in evidence. You must state such total amount of plaintiffs

damages in your verdict.

In determining the total amount of plaintiff's damages you

must not reduce such damages by any percentage of fault you

may assess to plaintiff. The judge will compute plaintiff's

recovery by reducing the amount you find as plaintiffs total

damages by any percentage you assess to plaintiff. Any award

of future pecuniary damages must be included at present

value. Any award you make is not subject to income taxes.

MAI 37.03 (modified by 8.02)

Submitted by Defendant

8la

APPENDIX I

Instruction Number A

In. determining whether plaintiff has suffered emotional

distress resulting from any reasonable fear of developing

cancer as a result of his diagnosis of asbestosis, you must

determine whether he has demonstrated that his fear is

genuine arid serious. In order to award damages to plaintiff

for any emotional distress, you must be persuaded, by a

preponderance of the evidence, that his emotional distress is

an actual injury.

In making this determination, you may take into account

whether or not plaintiff has voiced more than a general

concern about his future health, whether or not he has

suffered from insomnia or other stress-related conditions,

whether or not he hgs sought psychiatric or medical attention

for his symptoms, whether he has consulted counselors or

ministers concerning his fear, whether he has demonstrated

any physical symptoms as a result of his fear, and whether he

has produced witnesses who can corroborate his fear.

Unless you determine that their fear is genuine and

serious, and he has suffered actual emotional injury as a result

of this fear, you cannot find for the Plaintiffs.

Non-MAI

See Norfolk & W. Ry Co. v. Ayers, 123 S.Ct. 1210 (2003);

Carey v. Piphus, 435 U.S. 247 (1978); Smith v. ACandS,

Inc. , 843 F.2d 854, 859 (5" Cir: 1988); Vadie v. Miss. State

82a

Univ. , 218 F.3d 365, 376, n. 26 (5™ Cir. 2000); Forshee v.

Waterloo Industries, Inc. , 178 F.3d 527, 531 (8" Cir. 1999);

Price v. Charlotte, 93 F.3d 1241, 1251-52 (4" Cir. 1996);

Turie v. Holland Hospitality, 85 F.3d 1211, 1215-16 (6" Cir.

1996); DeNieva v. Reyes, 966 F.2d 480, 487 (9" Cir. 1992);

Biggs v. Village of Dupo, 892 F.2d 1298, 1305 (7" cir.

1990); Coffman v. Keene Corporation, 257 N.J.Super. 279,

608 A.2d 416 (1992).

Submitted by Defendant

Rejected MHM 4-19-05

83a

APPENDIX J

a, Instruction No. B

In order to find in favor of plaintiff for emotional distress

resulting from any reasonabl fear of developing cancer as a

result of asbestosis, you must believe:

First, plaintiff suffers actual emotional injury as a result

of his fear of cancer relating to asbestosis; and

Second, plaintiff has taken actions indicating more than a

general concern about his future health or has demonstrated

physical symptoms as a result of his fear of cancer.

Non-MAI

See Mehrer v. Diagnostic Imaging Center, P.C., 157 S.W.3d

315, 323 (Mo. App. 2005); McMullin v. Borgers, 806

S.W.2d 724, 730 (Mo. App. 1991); Norfolk & W. Ry Co. v.

Ayers, 123 S.Ct. 1210 (2003); Carey v. Piphus, 435 U.S. 247

(1978); Smith v. ACandS, Inc. , 843 F.2d 854, 859 (Sth Cir.

1988); Vadie v. Miss. State Univ., 218 F.3d 365, 376, n. 26

(5th Cir. 2000); Forshee v. Waterloo Industries, Inc., 178

F.3d 527, 531 (8 Cir. 1999); Price v. Charlotte, 93 F.3d

1241, 1251-52 (4" Cir. 1996); Turic v. Holland Hospitality,

85 F.3d 1211, 1215-16 (6" Cir. 1996); DeNieva v. Reyes, 966

F.2d 480, 487 (9" Cir. 1992); Biggs v. Village of Dupo, 892

F.2d 1298, 1305 (7" Cir. 1990); Coffman v. Keene

Corporation, 257 N.J.Super. 279, 608 A.2d 416 (1992).

84a

Submitted by Defendant

Rejected MHM 4-19-05

85a

APPENDIX K

Trial Transcript Excerpts

Timothy P. Hedgecorth,

Plaintiff,

V.

Union Pacific Railroad Company,

Defendant.

a i i i i ee

Trial Transcript of April 11, 2005

Cause No. 022-337

Margaret R. Cole, Certified Court Reporter

[Page 762]

MR. COWAN: _ Judge, were you also going to put

the refused instructions on the record?

THE COURT: _ I apologize. I will do that while Pat is

looking at that. We have instructions A through F submitted

by defendant. Those have been rejected by the Court. If the

defendant wishes to put anything else on the record regarding

those instructions, by all means, please do so at this time.

86a

MR. COWAN: Your Honor, Instructions both A and

B relate to the Ayres decision and the concept that there has to

be some guidance to the jury as to what an award for fear of

cancer from emotional distress would be. Based upon the

Ayres decision it makes it clear that not just any general

concern for your health is sufficient for a claim for fear of

cancer, but that the claims have to be genuine and serious.

Instruction A the defendant had originally submitted based

on conversations with the Court last night and references to

the MIA and case law relating to non-MAI instructions,

defendant attempted to provide a narrowed down version of

the Ayres instruction and also to finding what the claims for

reasonable fear of developing cancer are, and we believe that

the jury has to be given some type of guidance on this claim

because the Supreme Court has made it clear that it’s

something beyond just a general concern for your health, but

an actual emotional injury. Since federal common law governs

the plaintiff's substantive claims we believe it’s appropriate to

instruction on that.

Finally, just with respect to that Rule 70.02 of the

Missouri Supreme Court Rules it certainly allows for non-

MAI instructions when there is no applicable MAI instruction,

which in this case given the recency of the Ayres decision

there would not be.

Similarly, as to Instruction Number C we believe it’s

appropriate based on a comparative fault theory to instruct the

jury that the plaintiff has the same standard of causation as the

defendant for purposes of plaintiff's negligence that i.e, that

his negligence would have resulted in whole or part in injury

to the plaintiff.

87a

We cited New Jersey case law 3rd Circuit case law on this

point, which would support that since the jury essentially, is

assessing percentages between the two that it would be

confusing for them to look at two different standards to do

that.

Finally, exhibits or Instructions D and E relate to

plaintiff's failure to mitigate damages, and given that plaintiff

will be seeking damages for fear of cancer and potential future

pecuniary damages the fact that plaintiff continued to smoke

after his diagnosis would indicate fair to mitigating.

And finally, just with respect to the withdrawal of the loss

of wages and benefits that plaintiff has never

88a

APPENDIX L

UNITED STATES CODE ANNOTATED

TITLE 45. RAILROADS

CHAPTER 2--LIABILITY FOR INJURIES TO

EMPLOYEES

45 U.S.C. § 51. Liability of common carriers by railroad,

in interstate or foreign commerce, for injuries to

employees from negligence; employee defined

Every common carrier by railroad while engaging in

commerce between any of the several States or Territories, or

between any of the States and Territories, or between the

District of Columbia and any of the States or Territories, or

between the District of Columbia or any of the States or

Territories and any foreign nation or nations, shall be liable

in damages to any person suffering injury while he is

employed by such carrier in such commerce, or, in case of the

death of such employee, to his or her personal representative,

for the benefit of the surviving widow or husband and

children of such employee; and, if none, then of such

employee’s parents; and, if none, then of the next of kin

dependent upon such employee, for such injury or death

resulting in whole or in part from the negligence of any of the

officers, agents, or employees of such carrier, or by reason of

any defect or insufficiency, due to its negligence, in its cars,

engines, appliances, machinery, track, roadbed, works, boats,

wharves, or Other equipment.

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

such employee shall be the furtherance of interstate or foreign

89a

commerce; or shall, in any way directly or closely and

substantially, affect such commerce as above set forth shall,

for the purposes of this chapter, be considered as being

employed by such carrier in such commerce and shall be

considered as entitled to the benefits of this chapter.

Current through P.L. 110-16 approved 03-28-07