Petition for Writ of Certiorari — Hayden v. Consolidated Rail Corp.

FILED

28163

No. is S APR 1 21999

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1998

JAMES HAYDEN,

Petitioner,

ve

CONSOLIDATED RAIL CORPORATION,

Respondent.

On PETITION For Writ OF CERTIORARI

To Tue UNITED STATES COURT OF APPEALS

For Tue Sixt Circuit

PETITION FOR WRIT OF CERTIORARI

E.J. LEIZERMAN

Counsel of Record

E.J. LEIZERMAN & ASSOCIATES

717 MADISON AVENUE

ToLepo, Oulo 43624

(419) 243-1010

Attorney for Petitioner

BECKER GALLAGHER LEGAL PUBLISHING, INC., CINCINNATI, OHIO 800-890-5001

ee tem

QUESTIONS PRESENTED

Does the Federal Employers’ Liability Act protect a

railroad worker who sustains a myocardial

infarction/heart attack which is objectively and

directly related to the railroad’s negligence in ordering

unsafe work assignments?

Is a myocardial infarction/heart attack a physical

injury for which suit may be maintained under the

Federal Employers’ Liability Act?

LIST OF PARTIES

All parties to the proceedings in the court whose

judgment is sought to be reviewed here are named in

the caption of the case.

JAMES HAYDEN,

Petitioner,

v.

CONSOLIDATED RAIL CORPORATION,

Respondent.

il

TABLE OF CONTENTS

Rn II Sk er rs te i

WEE na aide Spite Gere es woe hoy il

So, BORER SU i NARS OS Ron RT ili

Pe 10 rt i V

II i i eis oe l

Wee MN 2 ee ee ]

a RRR ESSE AIRES Gian eat i ae ta 2

nn I oe 3

Reasons for Granting the Writ ................. 12

I re ea 23

Appendix

Appendix A

Order granting Petition for rehearing,

ME eS A la

Appendix B

IE STIG 5 i 3a

Appendix C

District Court Decision, 5/1/95........... 10a

ili

Appendix D

Affidavit of William Brown ............. 22a

Appendix E

Affidavit of Robert Tschirret ............ 25a

Appendix F

Affidavit of James Hayden.............. 3la

Appendix G

Affidavit of Sheldon L. Brownstein, M.D. ... 37a

Appendix H

Bailey v. Norfolk & Western Railway Co. .... 41a

iV

TABLE OF AUTHORITIES

Cases

Bailey v. Norfolk & W. Ry. Co., 1997 WL

12815% (Mo. App., March 18, 1997) . .

Beeber v. Norfolk Southern Corp.

F. Supp. 1364 (N.D. Ind. 1990) ......

Blair v. Baltimore & O.R.Co.,

She i Ee A a es a

Byrd v. Blue Ridge Rural Elec. Cooperative,

Dae IAB. det CAPO) 68 8S Cae oes

Carlisle v. Consolidated Rail Corp.,

D4 i ths DRAPE 5s ee ee ee

Consolidated Rail Corp. v. Gottshall,

PR is DARE 6s 00 & 68 kw

Dunn v. Conenaugh & Black Lick R.R.,

Ot Ne 6a ew eee

Ellis v. Union Pac. R. Co.,

See Us Ue PO 66 a ee es

Empey v. Grand Trunk W.R.R.,

Pe Me WN a

Fletcher v. Union Pac. R.Co., 621 F.2d 902

(8" Cir. 1980), cert.denied.

OAS US. BRIO) Beck Oh te SES

Isgott v. Seaboard Coastline R.R.,

Bae SN, Bhat CaP BPI ED 66 ne bs

Knobel v. Pennsylvania R.Co.,

SZ 2. seep. F714 CW. Pe. I9G)) oi es

Massimiani v. Monongahela R. R.,

ae Fs AeA EO AOTE) 6k so eR

Metro-North Commuter R.R. v. Buckley,

PW El RED 5 be oa NS AKO Sak oe

Miller v. Elgin, J. & E. Ry. Co.,

L?t ¥. 20 weet Coe. 1989) ee

Nutall v. Reading Co.,

dod &s ee ae Ge GE, BI i ee RRS

Rogers v. Missouri Pac. R. Co.,

SOR Sic IPO T Re «ob eos wR ES 15,

Saab v. Norfolk & Portsmouth Belt Line R.R.,

LAG Bild Be Fee UTE OE

St. Louis v. S.F.R. Co. v. King,

SOe Fs MO Gee ens SHOR oS Sank aS

Southern Ry. v. Welch,

24) Fs 28 SOO OR Cis P98?) 6 ee Bes

Stewart v. Baltimore & O.R. Co.,

Sat ee Ree Me BONED ob 6 ek

Stone v. New York C. & St. L. R. Co.,

ew Ae re RED ras ow le Ss hk we

Szymanski v. Columbia Transp. Co.,

154 F. 3d 991 (6 Cir. 1998) .........:; passim

Tennant v. Peoria & P.U.R. Co.,

8 TE A is ns a a Se 15

Tiller v. Atlantic Coast Line R. Co.,

oe RE Eo cs Sie RG ee aera ae ae ar ge ea 13

Urie v. Thompson,

BAF 17S: SGD 1I00D) secs ss os Se ee ae 13

Walsh v. Consolidated Rail Corp.,

935 F. Supp. 385 (W.D. Pa. 1997) ... 21, 22, 23

Wilkerson v. McCarthy,

S96 1S 58 CE os bee ee 8 13

Ybarra v. Burlington Northern, Inc.,

689 F. 2d 147 (6" Cir. 1982) ..... 2. 2a se 19

Statute

0 0 Se TIS) 6 a EN 8 am ]

BST Oe Se PEP ERE Ae ERS 2; Sao

BT Ok CERN oS RRR 3

BGS O Gh a. oe a REARS CO 3

Vil

PETITION FOR A WRIT OF CERTIORARI

James Hayden respectfully petitions for a writ of

certiorari to review the judgment of the United States Court

of Appeals for the Sixth Circuit.

OPINIONS BELOW

The original panel decision of the United States Court

of Appeals for the Sixth Circuit is not officially reported and

is reproduced in the Appendix at App. 3a. The Order of the

United States Court of Appeals for the Sixth Circuit granting

Consolidated Rail Corporation’s petition for rehearing,

vacating the panel decision and affirming the judgment of the

district court is not officially reported and is reproduced at

App. la. The opinion of the United States District Court for

the Northern District of Ohio is not officially reported and is

reproduced at App. 10a.

The en banc decision of the United States Court of

Appeals for the Sixth Circuit in Szymanski v. Columbia

Transportation Co., upon which the panel based its order

granting the petition for rehearing, vacating the prior

decision, and affirming the judgment of the district court is

reported at 154 F.3d 591 (6" Cir. 1998) (en banc).

JURISDICTION

The order of the United States Court of Appeals for

the Sixth Circuit granting Respondent’s petition for rehearing,

vacating the prior panel decision, and affirming the judgment

of the district court was entered on was entered on January

13, 1999. The jurisdiction of this Court is invoked under 28

U.S.C. §1254 (1).

STATUTE INVOLVED

This case involves the Federal Employers’ Liability

Act, 45 U.S.C. §51:

POTTS Ys PARDEE Leh TAE DI ALAN HET LEAS ON THEY .

ee

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 per 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 noon, 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 os 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.

STATEMENT OF THE CASE

A. Proceedings Below

Petitioner James Hayden was a 30 year veteran

railroad conductor with the Respondent Consolidated Rail

Corporation (hereinafter “Conrail” or the “railroad”), who

suffered his third myocardial infarction on June 24, 1992,

hours after completing his shift. Prior to June 24, 1992, Mr.

Hayden had sustained two on-the-job myocardial infarctions,

both of which were well documented and acknowledged by

Conrail. Nevertheless, Conrail cleared him to work and, on

June 24, 1992, Mr. Hayden suffered his third heart attack,

allegedly as the result of Conrail’s actions in ordering Mr.

Hayden to work an inordinate number of hours over a

substantial period of time.

A complaint for personal injury alleging negligence

under the Federal Employers’ Liability Act, 45 U.S.C. §§51-

60, was filed in the United States District Court for the

Northern District of Ohio.' The railroad ultimately moved for

summary judgment on the sole theory that Mr. Hayden’s heart

attack was not reasonably foreseeable, notwithstanding the

railroad’s actual knowledge of the two previous myocardial

infarctions.

Petitioner opposed the motion with evidence that the

railroad’s knowledge of his cardiac condition was sufficient

to withstand summary judgment. In its Reply Brief, the

railroad asserted that this court’s decision in Consolidated

Rail Corp. v. Gottshall, and Carlisle v. Consolidated Rail

es

' The District Court’s jurisdiction was based upon 45

U.S.C. §56.

Corp., 512 U.S. 532 (1994), precluded recovery.

The district judge granted the motion, relying on

Gottshall/Carlisle, as well as its earlier decision in Szymanski

v. Columbia Transp. Co., holding essentially that a heart

attack by its very nature was an emotional, not a physical

injury.

Hayden appealed to the United States Court of Appeals

for the Sixth Circuit. The plaintiff in Szymanski had also

appealed, and the two cases were argued on the same day

before the same three judge panel. By 2-1 vote, the panel

reversed the district judge in both cases, rendering the more

detailed opinion in Szymanski.

Both Conrail and the defendant in Szymanski filed

petitions for rehearing. The Szymanski petition was granted

and that case was reargued en banc. Conrail’s petition for

rehearing was held in abeyance pending the en banc decision

in Szymanski. On August 31, 1998, Szymanski was decided.

The en banc court rejected the reasoning of the panel majority

and the Sixth Circuit en banc affirmed the district court. 154

F.3d 591.” On January 13, 1999, the three judge panel in the

instant case acted on Conrail’s petition for rehearing, which

had been held in abeyance, granting the petition vacating the

prior panel decision and affirming the district court’s

judgment in light of the en banc decision in Szymanski.

(App. la)

? It is understood that Mr. Szymanski’s estate elected not to

seek certiorari. Petitioner, of course, does seek to have this Court

reveiw the significant issues presented.

4

«giana

B. Statement of Facts

P Introduction

This is an action brought pursuant to the Federal

Employers’ Liability Act, 45 U.S.C. §51 et seq., to recover

compensatory damages for a heart attack (myocardial

infarction) sustained by the petitioner, James Hayden, on or

about June 24, 1992 and arising out of the course and scope

of his employment as a train conductor. As set forth in the

Complaint Mr. Hayden had a pre-existing coronary condition

which was known to the railroad and,

5. Notwithstanding said knowledge,

defendant gave plaintiff medical

clearance to return to work. For at

least a year prior to June 24, 1992 the

defendant, with full knowledge of

plaintiff's pre-existing heart condition,

required plaintiff to work an excessive

and inordinate number of hours, and

that this work pattern had been in

effect for more than the immediate

preceding year thereto.

6. On June 24, 1992, plaintiff suffered a

myocardial infarction which was

directly and proximately caused by the

negligence of the defendant,

Consolidated Rail Corporation, in one

or more of the following particulars:

A. Knowingly requiring plaintiff to

do work which was beyond his

physical capacity;

B. Requiring plaintiff to perform

5

work which would normally be

performed by more than one

person;

ie Knowingly permitting plaintiff

to continue on a job despite

knowledge that the work was

beyond his physical capacity;

D. Requiring or permitting

plaintiff to continue excessive

work assignments despite

knowledge that his prior illness

had impaired his ability to do

the particular job.

Nowhere in the complaint is there any allegation,

expressed or implied, purporting to state a claim for negligent

infliction of emotional distress. Yet Respondent relied on

Consolidated Rail Corp. v. Gottshall and Carlisle v.

Consolidated Rail Corp. 512 U.S.532 (1994), contending that

a heart attack caused by excessive work is not a physical

injury, but rather an emotional injury. This ultimately, albeit

erroneously, became the linchpin of the District Court

decision. The plaintiff maintained in the district court and in

the court of appeals, and continues to maintain in this Court,

that the heart like the shoulder, neck or leg, is a body part

capable of being physically abused.

In the district court, Mr. Hayden responded to the

railroad's argument by submitting various depositions and

affidavits. These evidentiary materials, which were largely

unaddressed by the district judge and by the court of appeals,

sought to establish that the railroad intentionally and

deliberately compelled Mr. Hayden to work more hours on a

routine basis than any other conductor in the Dearborn

Division, irrespective of how hazardous it may be to any of

6

Se ERE Dre ets ered eee ee RST ert ERATED ARES

its employees and in particular to Mr. Hayden,

notwithstanding his known cardiac condition.

2. The Railroad Caused Mr. Hayden's Heart

k By Delil ly Calling Hi Worl

E Di Numi

Hours

Conrail’s position in the courts below has been that

under its interpretation of Gottshall, it can intentionally assign

excessive work to an otherwise healthy man to the point of

causing a myocardial infarction, and then claim that the FELA

does not afford railroaders protection against heart attacks

caused by too much work, theorizing that by its very nature,

a myocardial infarction is only a physical manifestation of an

emotional injury. The facts, however, belie such a

contention, which was adopted by the courts below. In the

district court, petitioner presented a number of affidavits,

which were never seriously challenged or rebutted by

Conrail. These affidavits established certain uncontested facts

and are summarized as follows:

Petia Meal a Wak he 8 :

Number of Times

At the time of this third heart attack and for some time

prior thereto, petitioner had been on the conductor's extra list,

which is a rotating pool of conductors who would be called

for work assignments as their name rotated or came up on the

list.’ An affidavit (App. 22a) from a crew dispatcher (caller),

> When so called, a conductor such as Mr. Hayden has no

option to decline the additional assignments. They are mandatory.

7

William Brown, filed by petitioner in opposition to the

railroad’s motion for summary judgment, established that

trainmen would often use illness or sickness as an excuse to

avoid working when called even though they were not, in

fact, sick or ill. As a result, it was the practice of the crew

callers to take conductors out of their proper rotation and "to

always call first those men who we knew would not lie even

though we called them a disproportionate number of times."

Petitioner was among those conductors who would be

called more often than his appropriate rotation because he

would not lie about using illness or sickness as an excuse.

As stated in paragraph 6 of Mr. Brown’s affidavit:

James Hayden was a conductor who I frequently

called. The number of calls to him were

disproportionate and exceeded the number of calls to

most other men. Mr. Hayden would almost never rely

upon sickness or illness as an excuse for not making

himself available.

Indeed, Mr. Hayden often warned Conrail and told

them that the excessive work was going to give him another

heart attack, and he continually complained to other crew

callers that he was being picked on and continued to remind

them of his heart condition. To show just how unreasonable

the situation was, Mr. Hayden was called to take a train to

Chicago even though he was on vacation.

b. Local Union President Opined that Railroad

Intentionally Deviated From Established

Procedure

Also submitted in opposition to the motion for

summary judgment was the Affidavit of Robert Tschirret who

had been a Conrail employee since 1968 and for fifteen years

had been President of Local 2 (formerly Local 550) of the

United Transportation Union, to which Mr. Hayden belonged

(App. 25a).

It was Mr. Tschirret's experience that Conrail

"deviated from the established procedures for calling men

such as James Hayden to work out of the Dearborn Division,

resulting in some individuals, such as plaintiff, being called

an excessive number of times", notwithstanding that Conrail

“knew of Mr. Hayden’s heart condition as his name was used

by example...regarding inadequate manpower and its

accompanying dangers and hazards.”

Further and of equal importance, it was also Mr.

Tschirret's experience that there had been a deliberate

depletion in manpower in the Dearborn Division since the

early 1980's. This was accomplished by both buy-outs and

lay-offs. Yet, by 1990 or 1991, rail traffic had increased,

thereby increasing the stress and strain on the men, including

Mr. Hayden.

The union repeatedly complained to Conrail about the

inadequate number of qualified men in the conductor pool. In

fact, with regard to the men who were furloughed or laid-off,

Mr. Tschirret demanded, if not begged, for the return to work

of these laid off men. Although the railroad presented

evidence that it was the union which fought against more men,

Mr. Tschirret strongly disagreed. Further, with regard to the

laid-off men, Conrail failed to bring these men back until after

Mr. Hayden's heart attack of June 24, 1992. It was Mr.

Tschirret's opinion, based upon his experience in labor

relations and conductor/brakeman safety that:

. . the conduct and policy of Consolidated

Rail Corporation in permitting the reduction of

qualified men available in the conductor/brakeman

pools for which James Hayden was employed was at

worst a wanton disregard for the health and safety of

the conductor/brakemen, such as James Hayden, and,

at best, was negligent conduct by Consolidated Rail

Corporation.

mi Petitioner's Affidavit Established Excessive

Work Schedule

Mr. Hayden submitted an affidavit in which he related

a typical work week. (App. 3la) For the week selected by

Mr. Hayden, January 14 - January 21, 1992, he stated in his

affidavit as follows:

Of the 168 hours in the week, I was bound to

the railroad for 112 hours and 25 minutes either on

duty, subject to call, traveling to or from the job, or

getting required sleep while out of town. That left 55

hours and 35 minutes at home, probably 20-25 of

which was sleep time, leaving approximately 30 hours

truly free to spend with my family or for myself. Of

course, some of that was late at night or early in the

morning.

d. Petit *s Cardiologist Established Cansati

Finally, Mr. Hayden's board certified cardiologist

reviewed petitioner’s affidavit, along with portions of Mr.

Hayden's deposition, and other material. Dr. Brownstein’s

affidavit (App. 37a) expressed his opinion with regard to

plaintiff's work regimen as follows:

10

7. Based upon my review of all of the above,

it is my opinion that Conrail was negligent in not

requiring a modification or reduction of Mr. Hayden's

work schedule, and that the work regimen that Mr.

Hayden was required to maintain from at least January

1, 1992 to the date of his myocardial infarction of

June 24, 1992 was more likely than not a contributing

factor to that myocardial infarction.

* * *

9. It is further my opinion that it was

negligent, or not a reasonably safe work practice, to

require Mr. Hayden to work the hours he did under

the circumstances and in light of his well known

cardiological history.

District Judge David A. Katz accepted the railroad’s

arguments and characterized plaintiff's claim solely as one of

emotional distress.* He then proceeded to analyze the case in

light of Consolidated Rail Corp. v. Gottshall, supra, and its

companion case, Carlisle v. Consolidated Rail Corp., and

concluded that, heart attacks were not compensable physical

injuries within the ambit of the FELA, because they are

nothing more than physical manifestations of emotional

distress. Summary judgment for defendant was accordingly

granted.

* As noted, the railroad never addressed the facts set forth

in the foregoing affidavits, except to suggest that Mr. Hayden had

the seniority to bid on other work, a fact contested by Petitioner.

The decision did not turn on that fact, however, as the railroad

relied exclusively on Gottshall, claiming that the heart attack was

an emotional injury.

1]

Plaintiff appealed that decision to the Sixth Circuit

Court of Appeals. By a 2-1 vote, the panel reversed the

district court decision. (App. 3a) A petition for rehearing

filed by Conrail was held in abeyance pending an en banc

determination by the Sixth Circuit in Szymanski v. Columbia

Transp. Co., supra, also decided by Judge Katz, and

addressing precisely the same issue. Szymanski was decided

on August 31, 1998, and is reported at 154 F.3d 591 (6" Cir.

1998) on January 13, 1999, the railroad’s petition for

rehearing was granted, the original panel decision vacated,

and the district court judgment affirmed. (App. 1a)

REASONS FOR GRANTING THE PETITION

I. THE COURT BELOW GROSSLY

MISCHARACTERIZED THIS COURT’S

DECISION IN CONSOLIDATED RAIL CORP. V.

GOTTSHALL BY ERRONEOUSLY

CONCLUDING THAT HEART ATTACKS ARE

NOT COMPENSABLE UNDER THE FEDERAL

EMPLOYERS’ LIABILITY ACT

A heart attack is a physical injury which is

compensable under the FELA. Yet, the en banc decision of

the Sixth Circuit in Szymanski v. Columbia Transp. Co., 154

F.3d 591 (6" Cir. 1998), holding to the contrary, and which

forms the basis for the rehearing and affirmance of the district

court in this case, has turned the FELA on its head and has

sorely done injustice both to the Congressional intent behind

the FELA and numerous decisions of this Court. If permitted

to stand, the Sixth Circuit’s decision will have far-reaching

consequences in all future litigation brought under the FELA.

By misinterpreting and misapplying this Court’s very limited

holding in Gottshall to a case involving physical injury to

Petitioner's heart, an injury which is not within even the most

12

ae

expansive reading of Gottshall, the courts below have

creatively changed the face of the FELA by holding as a

matter of law that heart attacks are, by their very nature,

stress inducted emotional injury and therefore fail under

Gottshall. Yet in the almost 100 year history of the FELA,

this Court has never spoken to whether or not heart attacks

are physical injuries which are compensable under FELA.

The question that must be asked is how a myocardial

infarction or heart attack can be analogized to a purely

emotional claim or mental disturbance. It is submitted that it

simply cannot. Yet that is precisely what the Court of

Appeals has done in this case.

As Mr. Justice Douglas stated in his oft quoted

concurrence in Wilkerson v. McCarthy, 336 U.S. 53, 66

(1949), the FELA was enacted in order “to put on the rail

industry some of the cost for legs, eyes, arms and lives which

it consumes in its operations.” This theme has been reiterated

time and again by this court. See, e.g., Urie v. Thompson,

337 U.S. 163 (1949); Tiller v. Atlantic Coast Line R. Co.,

318 U.S. 54 (1943); Consolidated Rail Corp. v. Gottshall,

512 U.S. 532 (1994).

This Court has also repeatedly held that because the

FELA is remedial in nature, it must be liberally construed to

effect its humanitarian purposes. See, e.g., Urie v.

Thompson, supra; Gottshall, supra. In Gottshall, this Court

applied these principles by deciding whether “purely

emotional injury was ... compensable under FELA.” 512

U.S. at 541 (emphasis supplied).

Patently, the only issue before this Court in Gottshall

was the availability of recovery under FELA for a “new

category of claims”-negligent infliction of emotional distress.

13

al

Id. Gottshall and its companion case, Carlisle v. Consolidated

Rail Corp., did not purport to address physical injury, such

as a heart attack. In short, the gravamen of Gottshall and

Carlisle is “emotional harm.” See Metro-North Commuter

R.R. Co. v. Buckley, 521 U.S. 424 (1997). Yet, the Court of

Appeals, by applying its decision in Szymanski to this case,

has transformed a “standard negligence case ... into

something [it is] not - [a] negligent infliction of emotional

distress claim.” Szymanski, 154 F.3d at _597 (Moore, J.

dissenting)

This case is not and has never been about emotional

distress or psychological injury. This is not a case where the

plaintiff at any time sought to make Conrail the insurer of his

“emotional well being and mental health.” Gofrtshall, 512

U.S. at 554. It is about a physical injury to Mr. Hayden's

heart muscle caused, in whole or in part, by the negligence of

Conrail in compelling Mr. Hayden to work unusual and

extraordinary work loads, notwithstanding its actual

knowledge of Mr. Hayden’s cardiac history.

Such cases have traditionally been accorded

recognition under the FELA. Indeed, courts have allowed

recovery for heart attacks even in the absence of proof of any

other bodily injury. See, e. g., Williams v. Atlantic Coast

Line R. Co., 199 F. 2d 744 (5" Cir. 1951); Miller v. Elgin,

J. & E. Ry. Co., 177 F.2d 244 (7" Cir. 1949); Stewart v.

Baltimore & O. R. Co., 137 F. 2d 527 (2d Cir. 1943). Yet,

what the Sixth Circuit has essentially held is that all heart

attacks are, by their nature, stress induced, or must be caused

by physical impact and, under its interpretation of Gottshall,

heart attacks are no longer compensable under the FELA,

irrespective of the negligence or dangers of the work

assignments.

4

Petitioner respectfully submits that this far exceeds this

court’s limited holding in Gottshall. That this Court intended

its decision to reach only to negligent infliction of emotional

distress claims is underscored by the Third Circuit’s analysis

in Gottshall on remand. Gottshall v. Consolidated Rail

Corp., 56 F.3d 530, 533 (3d. Cir. 1995): “The court found

support ... for extending the FELA’s coverage to purely

emotional claims.” (emphasis supplied) The Third Circuit

went on to define a “purely emotional claim” as “mental

disturbance unaccompanied by a contemporaneous infliction

of physical injury.” /d., fn.3 (emphasis supplied)

Additionally, by concluding as a matter of law that

Petitioner's heart attack was caused by too much rather than

too dangerous work, the court below improperly invaded the

province of the jury. The Seventh Amendment to the United

States Constitution creates a “federal policy favoring jury

decisions of disputed fact questions.” Byrd v. Blue Ridge

Rural Elec. Cooperative, 356 U.S. 525, 538 (1958 ). And

this Court has repeatedly held that trial by jury is part of the

remedy afforded to injured railroaders under the FELA. See,

e.g., Rogers v. Missouri Pac. R. Co., 352 U.S. 500 (1957);

Ellis v. Union Pac. R. Co., 329 U.S. 649 (1947); Tennant v.

Peoria & P.U.R.Co., 321 U.S. 29 (1944).

Petitioner has not been afforded substantial justice. He

has presented a cognizable claim for physical injury under the

FELA, but has been deprived of his opportunity to allow a

jury to determine the railroad’s liability because the Sixth

Circuit has misapplied this Court’s decision in Gottshail to the

facts of this case. It is respectfully submitted that this Court

grant this petition and define the status of heart attacks under

the FELA.

15

Il. BY ERRONEOUSLY APPLYING GOTTSHALL

TO THE FACTS OF THIS CASE, THE SIXTH

CIRCUIT HAS UNJUSTIFIABLY LIMITED A

RAILROAD EMPLOYEE’S' RIGHT TO

RECOVER DAMAGES FOR HEART ATTACK

BASED ON TRADITIONAL NEGLIGENCE

THEORIES

Petitioner respectfully submits that when this Court

observed in the Carlisle portion of Gottshall, that there can be

no FELA recovery for “too much” work, only “too

dangerous” work, this Court intended that such a principle be

applied only in the context of a claim for purely emotional

injury premised on a pleaded theory of negligent infliction of

emotional distress. In this case, however, Petitioner never

pleaded such an injury or such a theory of recovery. Rather,

the entire record below established that from the institution of

the suit, through the summary judgment process, and in the

Court of Appeals, Petitioner contended without deviation or

change in theory, that Conrail was negligent in failing to

provide sufficient manpower, thus compelling Mr. Hayden to

work long and arduous hours, and in assigning him to this

type of work regimen despite having actual knowledge of his

prior cardiac history, which resulted in reinjury to his heart

muscle, not to his psyche or emotional well-being.

Simply stating, as the courts below have done, that a

heart attack caused by “too much work” is not compensable

begs the question of why was there too much work.

Petitioner submits that this question should have been, but

was not, analyzed by the Court of Appeals in light of the

specific theories of negligence pleaded and upon which

substantial evidence was presented in the trial court, namely

16

insufficient manpower and negligent assignment.”

As will be shown below, these are traditional FELA

negligence theories, where “too much work” can become

dangerous. Inasmuch as these traditional theories of recovery

are well beyond the scope of this Court’s holding in Gottshall,

however, the Sixth Circuit has effectively negated almost a

century of FELA law, since “an employer’s failure to provide

adequate assistance to its employees can constitute a breach of

the employer’s duty under the FELA.” Beeber v. Norfolk

Southern Corp., 754 F. Supp. 1364, 1372 (N.D. Ind. 1990).

A. Insufficient Manpower

If a railroad worker injures his back while attempting

to move a 1000 pound pipe with an inadequate number of men

assisting him, he may recover under the FELA. Blair v.

Baltimore & O. R. Co., 323 U.S. 600 (1945). See also Stone

v. New York C. & St. L. R. Co., 344 U.S. 407 (1953). In

short, injury caused by insufficient manpower is cognizable

under the statute.

The evidence adduced in opposition to the motion for

summary judgment filed by Conrail established that Conrail

had deliberated depleted its manpower in the conductor pool

and, as a result of this decrease in the number of qualified

available men, Mr. Hayden was called upon more frequently

to perform his duties as a conductor. Thus in a typical week,

Mr. Hayden worked or was subject to call 112 hours out of

> In this regard, the instant case differs significantly from

Szymanski, where these elements of negligence were never pleaded

or briefed.

17

au

ey

4

4

2

*

168 hours.°

Insufficient manpower is an example of how "too

much work" can become too dangerous to the point of

establishing liability under the FELA, where the minimal

requirement for submitting the case to the trier of fact is

whether the railroad's negligence played any part, no matter

how slight, in producing the injuries complained of. Rogers,

supra. By way of illustration, if the railroad originally used

eight men to carry 1,000 kegs of spikes, each weighing 100

pounds, and then reduced the available manpower to two men,

yet expected the same work to be done within a similar period

of time, and one of the men became injured as the result of

the extraordinary workload, the railroad should not be able to

avoid suit under the FELA by claiming the injury was caused

by “too much work”.

The instant case presents equally compelling evidence

of the railroad's negligence in reducing manpower to

dangerous proportions. The evidence adduced by petitioner

and submitted to the trial court in opposition to the railroad's

motion for summary judgment established that Conrail made

a conscious and deliberate decision to reduce its work force.’

Yet, the Sixth Circuit has permitted Conrail to extricate itself

from the situation it created by holding that Mr. Hayden's

° When not on duty Mr. Hayden nevertheless had to

remain at home lest he miss a call to report to work, thereby

subjecting himself to employee discipline.

’ In this regard, it is fair to infer that from a cost-benefit

perspective, it is less costly to pay overtime than to hire new

people. By so opting, Conrail apparently made a conscious

decision that employee health and safety must yield to such a cost-

benefit scenario.

18

myocardial infarction was emotionally stress induced.

Clearly, if an employee overexerts himself because he

is required to do work normally accomplished by more than

one person, he may recover for the injury caused by the

overwork. See, e.g., Southern Ry. v. Welch, 247 F.2d 340

(6" Cir. 1957) (insufficient help made work "harder;” liability

sustained). This has been the law since the FELA was

enacted. Gottshall and Carlisle have no application to this

theory and to hold, as the Court of Appeals has done, that a

myocardial infarction brought on in whole or in part by

overwork occasioned by insufficient manpower is not

actionable, perverts the beneficent purposes of the Act.

B. Negligent Assignment.

Just as it is well established that a railroad employee

may recover under the FELA for the negligence of the

railroad in failing to provide adequate assistance or

manpower, it is equally well settled that where a railroad

forces a sick, injured or disabled employee, of whose illness,

injury or disability the railroad knew or should have known,

into work for which he is not fitted because of his condition,

recovery under the FELA may be had. This is commonly

referred to as negligent assignment. Ybarra v. Burlington

Northern, Inc., 689 F.2d 147 (8th Cir. 1982); Nutall v.

Reading Co., 235 F.2d 546 (3d Cir. 1956). At the very least,

where an employee's supervisor orders him to perform a task

which an employee’s physician has said he could not or

should not perform because of a pre-existing condition, a jury

question on negligent assignment is raised. See, e.g., Saab v.

Norfolk & Portsmouth Belt Line R.R., 278 S.E.2d 795 (Va.

1981); Jsgett v. Seaboard Coastline R. R., 332 F.Supp. 1127

(D.S.C. 1971). The negligent assignment in this case was

requiring a man with known cardiac problems to work more

19

hours than any other conductor in the Division.

In the leading case of Fletcher v. Union Pac. R. R.,

621 F.2d 902 (8th Cir. 1980), cert. denied, 449 U.S. 1110

(1981), plaintiff had sustained a back injury and, despite the

railroad's knowledge of same, reassigned plaintiff to his old

position as a sectionhand. Holding that plaintiff had made a

submissible jury question on the negligent assignment theory,

the Eighth Circuit stated in pertinent part that “returning

Fletcher to work played a part in causing his present

condition [and] whether the assignment was negligent is a

question of fact...” 621 F.2d at 909. (emphasis supplied)

See, also, Dunn v. Conemaugh & Black Lick R.R., 267 F.2d

571 (3d Cir. 1957); Empey v. Grand Trunk Western R.R., 710

F. Supp. 653 (W.D. Mich. 1987), aff’d, 689 F. 2d 293 (6"

Cir. 1989); Massimiani v. Monongahela R.R., 339 F.Supp.

32 (W.D.Pa. 1972); Knobel v. Pennsylvania R. Co., 192 F.

Supp. 771 (W.D. Pa. 1961), aff'd, 296 F.2d 737 (3d Cir.

1962); St. Louis-S.F. R. Co. v. King, 368 P.2d 835 (Okla.

1961).

In the case at bar, the record before the district judge

established that Conrail, by and through its medical

department, knew of Mr. Hayden's prior cardiac history as

early as 1985. There is also record evidence that Mr. Hayden

complained to crew caller William Brown and others

regarding his cardiac condition.

Clearly, then, the railroad had knowledge of Mr.

Hayden's prior cardiac condition, and this knowledge was not

confined to the medical department and crew dispatchers but

went as high as Conrail's Director of Crew Dispatching,

Philip Filippelli. See the affidavit of Robert Tschirret who

testified that Conrail was warned about the potential for injury

specifically to Mr. Hayden. In light of the great body of law

20

cited herein, there was patently more than sufficient evidence

adduced below from which the trier of fact could conclude

that it was negligent to compel Mr. Hayden to work the

schedule he was forced to maintain. Had plaintiff suffered

from a prior back injury and the railroad had assigned to him

the task of repeatedly picking up rail ties, the negligence

claim would be apparent. It should be no less viable under

the facts presented. The heart, like the shoulder, bicep, or

back, is a body part capable of being physically abused.

Plaintiff alleged and presented substantial, competent , and

unrebutted evidence that the railroad excessively assigned him

to a job which abused an already compromised cardiac

condition. Nowhere in Gottshall is there any intimation that

negligent assignment, if properly proved, is no longer

cognizable under the FELA. The Sixth Circuit's

misinterpretation of Gottshall, however, foreshadows a death

knell to that long recognized theory of FELA negligence.

il. POST-GOTTSHALL DECISIONS HAVE NOT

UNIFORMLY APPLIED AND INTERPRETED

THAT DECISION RESULTING IN

INCONSISTENT DECISIONS

In the relatively short time since Gottshall was

decided, a number of state and lower federal courts have

grappled with its applicability to stroke or coronary medical

conditions. At least two decisions are totally contrary to the

result in this case and in Szymanski. As stated earlier, in the

almost 100 years of the FELA this Court has never addressed

the issue of whether heart attacks are physical injuries

recognized under the FELA. The emerging conflict may well

be eliminated if the court accepts this case.

In Walsh v. Consolidated Rail Corp., 937 F. Supp.

380, aff'd on reconsideration, 937 F. Supp. 385 (E.D. Pa.

21

1997), plaintiff was a conductor like Petitioner herein. The

railroad had knowledge of Walsh’s hypertensive condition,

yet continued to assign him to “stressful jobs ... beyond his

physical capacity.” 937 F. Supp. at 381. Walsh suffered a

stroke and brought suit under the FELA.

Conrail moved for summary without citing Gottshall.

The motion was denied. Conrail then applied for

reconsideration contending Gottshall precluded the claim. /d.

at 386. The motion was again denied, the court observing

that “[t] he facts presented in the instant case invoke neither

the letter nor the spirit of the Gottshall decision.” /d at 387.

The Walsh court continued by noting that:

Gottshall’s instructional value lies largely in claims for

negligent infliction of emotional distress which present

that same emotional injuries (albeit with physical

manifestations) that Carlisle and Gottshall presented.

ld.

Likewise, Gottshall’s applicability to a case involving

coronary artery disease was rejected in Bailey v. Norfolk &

W. Ry. Co., 1997 WL 124153 (Mo. App., March 18, 1997)

(App. 41a). Medical evidence presented in that case

established that Bailey, a railroad brakeman, suffered heart

problems at least partially as a result of his hours of work and

Sleep deprivation. Affirming a judgment for the plaintiff, the

Missouri court concluded that :

Bailey’s coronary artery disease and gastritis are

physical injuries. His claim is one for negligent

infliction of a physical injury; not an emotional one.

The portions of Gottshall/Carlisle which concern the

proper scope of the availability of a claim for

22

negligent infliction of emotional distress are

inapplicable.

1997 WL 124153 at *6.

To be sure, there are decisions which are contrary to

Walsh and Bailey and which are consistent with the analysis

of the Sixth Circuit in Szymanski. Yet it cannot be gainsaid

the rights, duties and obligations of the parties to an FELA

action are governed by uniform federal law. That uniformity

and predictability is lacking where a growing number of

courts have grappled with the interpretation and applicability

of Gottshall on fairly analogous facts. This case presents this

Court with an ideal opportunity to definitively determine

whether a heart attack is a physical injury which is cognizable

under the Federal Employers’ Liability Act.

CONCLUSION

For the reasons stated herein, it is respectfully

submitted that the petition for a writ of certiorari should be

granted.

/s/

E. J. Leizerman

E. J. Leizerman & Associates

717 Madison Avenue

Toledo, Ohio 43624

(419) 243-1010

(419) 243-8200 FAX

Counsel for Petitioner

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

[Filed January 13, 1999]

No. 95-3558

NOT RECOMMENDED FOR

FULL-TEXT PUBLICATION

JAMES HAYDEN,

Plaintiff-Appellant,

Vv.

CONSOLIDATED RAIL

CORPORATION,

)

)

)

)

)

)

)

Defendant-Appellee. )

)

ON PETITION FOR REHEARING

ORDER

Before: BOGGS and MOORE, Circuit Judges, and

HILLMAN, District Judge.

The Honorable Douglas W. Hillman, United States

District Judge for the Western District of Michigan, sitting by

la

Per Curiam. In light of this court's en banc opinion

in Szymanski v. Columbia Transportation Co., 154 F.3d 591

(6th Cir. 1998) (eh banc), we grant the petition for rehearing

and vacate the prior panel decision. We AFFIRM the

judgment of the district court.

ENTERED BY ORDER OF THE COURT

/s/

Leonard Green, Clerk

designation.

2a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

[Filed February 27, 1997]

No. 95-3558

NOT RECOMMENDED FOR

FULL-TEXT PUBLICATION

JAMES HAYDEN,

Plaintiff-Appellant,

V.

CONSOLIDATED RAIL

CORPORATION,

Defendant-Appellee.

Ne me eee ee ee ee ee ee

OPINION

BEFORE: BOGGS and MOORE, Circuit Judges, and

HILLMAN, District Judge.”

The Honorable Douglas W. Hillman, United States

District Judge for the Western District of Michigan, sitting by

designation.

3a

Panel Decision, 2/27/97

KAREN NELSON MOORE, Circuit Judge.

Plaintiff-Appellant James Hayden appeals the district court's

order granting summary judgment to Defendant-Appellee

Consolidated Rail Corporation ("Conrail"). The district court

granted summary judgment on the ground that the alleged

injuries were workplace stress injuries that are not cognizable

under the Federal Employers’ Liability Act ("FELA"), 45

U.S.C. §§ 51-60, pursuant to the Supreme Court's decision

in Consolidated Rail Corp. v, Gottshall, 114 S. Ct. 2396

(1994). For the reasons stated below, we reverse the district

court's order granting summary judgment and remand the

case to the district court.

I. BACKGROUND

Hayden began working as a conductor for Conrail in

1963. In 1973, Hayden had a heart attack and was off work

for six months. Hayden notified Conrail about the heart

attack, and Conrail's doctor authorized Hayden to return to

work. In 1975, Hayden suffered a second heart attack or

cardiac problem, and again was off work for about six

months. Between 1975 and 1992, Hayden was not treated for

cardiac problems, and had no restrictions placed on his

activities. In 1989, Conrail requested that Hayden have an

annual physical examination, but Hayden alleges that Conrail

negligently failed to require him to undergo such

examinations.

At some point after 1983, Hayden was placed on the

“conductor's extra list," a pool of conductors who may be

called for work assignments in a rotating order. Conrail called

Hayden more often than other conductors because he was

experienced and did not make excuses to avoid working. On

4a

Panel Decision, 2/27/97

June 23, 1992, after a vacation, Hayden returned to work. On

June 24, 1992, while off-duty, Hayden had a third heart

attack.

Hayden sued Conrail pursuant to the FELA, alleging that

Conrail negligently caused his heart attack by requiring him

to work an "inordinate and excessive" number of hours. The

district court granted Conrail's motion for summary

judgment, finding that the gravamen of Hayden's complaint

was overwork, and that Hayden's complaint thus was

foreclosed by the Supreme Court's decision in Gottshall.

Hayden appealed the district court's decision to this court.

II. THE FELA IN GENERAL

We review the district court's decision granting

summary judgment de novo, using the same standards as

applied by the district court. Middleton v. Reynolds Metals

Co., 963 F.2d 881,882 (6th Cir. 1992). Summary judgment

is proper if the evidence submitted shows that there is no

genuine issue of material fact and that the moving party is

entitled to judgment as a matter of law. City Management

Corp, v. U.S. Chemical Co., 43 F.3d 244, 250 (6th Cir.

1994). We consider all facts and inferences drawn therefrom

in the fight most favorable to the non-moving party. Id.

The FELA, in 45 U.S.C. § 51, provides that:

Every common carrier by railroad . . . shall be

liable in damages to any person suffering

injury while he is employed by such carrier in

[interstate] commerce. . . for such injury or

death resulting in whole or in part from the

Sa

Panel Decision, 2/27/97

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.

To recover damages pursuant to the FELA, a plaintiff must

show that he was injured while in the scope of his

employment; that his employment was in furtherance of his

employer's interstate business; that his employer was

negligent; and that the employer's negligence played, some

part in causing the injury for which he seeks compensation.

Green v. River Terminal Ry, 763 F.2d 805, 808 (6th Cir.

1985). Liability may be imposed only if the harm was

reasonably foreseeable by the employer. Id. However, the

FELA is to be "liberally construed in favor of the injured

plaintiff," and the courts' power to direct verdicts is limited.

Id. at 806. Under the FELA, "the test of a jury case is simply

whether the proofs justify with reason the conclusion that

employer negligence played any part, even the slightest, in

producing the injury or death for which damages are sought."

Rogers v. Missouri Pacific R.R., 352 U.S. 500, 506 (1957).

FELA employers have a duty to use reasonable care to

furnish their employees with a safe place to work. Ragsdell v.

Southern Pacific Transp. Co. ,688 F.2d 1281, 1283 (9th Cir.

1982). Employers also may be negligent if they assign

employees tasks that are beyond their physical capacities.

Fletcher v. Union Pacific R.R., 621 F.2d 902, 908-09 (9th

Cir. 1980), cert. denied, 449 U.S. 1110 (1981). Injuries may

be compensable under the FELA even if they are caused by

the cumulative effect of a series of incidents. Id. at 909.

6a

4

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}

Panel Decision, 2/27/97

iil. HEART ATTACK CLAIMS UNDER THE FELA

In a companion case, Szymanski vy. Columbia

Transportation Co., No. 95-3205, we have explained in a

published opinion our analysis of heart attack claims under the

FELA (and also the Jones Act). See Szymanski slip opinion

at part IfI. Our reasoning in Szymanski applies equally here.

Our survey of the caselaw indicates that physical

injuries, such as heart attacks, are compensable under the

FELA when they are negligently caused by physical stress or

by extraordinary non-physical stress. Heart attacks caused by

ordinary non-physical workplace stress are not compensable,

because such plaintiffs will be unable to prove that their

employers were negligent in providing a workplace with

ordinary workplace stress. An employer breaches no duty by

failing to prevent ordinary workplace stress. To hold an

employer liable for the results of ordinary workplace stress

would surely make that employer an insurer of its employees'

health, a result that we do not believe Congress would intend

and that we do not suggest.

In this case, however, the district court erred in

believing that Gottshall precludes the possibility of recovery

for a heart attack negligently caused by physical stress or

extraordinary nonphysical stress. Upon remand, the district

court should analyze whether summary judgment is

appropriate on Hayden's claim using this standard, i.e., the

district court should determine whether Hayden can show a

genuine issue that his heart attack at least in part was

negligently caused by physical conditions in the workplace or

by extraordinary workplace stress. Hayden's complaint asserts

that Conrail, which knew of his medical history, assigned him

Ta

Panel Decision, 2/27/97

to work excessive hours in spite of his cardiac problems. The

district court must determine whether there is a genuine issue

that Conrail negligently subjected Hayden to extraordinary

workplace stress, or whether the stress complained of by

Hayden was within the realm of ordinary workplace stress and

hence not compensable under the FELA.

IV. CONCLUSION

Because the district court analyzed Hayden's claims

using an improper legal standard, we REVERSE the district

court's order granting summary judgment to Conrail, and

REMAND the case to the district court for further

proceedings in accordance with this opinion.

Hayden v. Consolidated Rail Corporation, No. 95-3558

BOGGS, Circuit Judge, dissenting. For the reasons

I have stated in my separate opinion in Szymanski v. Columbia

Transportation Co., No. 95-3205, 1997 FED App. 0063P

(6th Cir. Feb. 19, 1997), I would also affirm the district court

in this case. In Hayden's case, his only complaint is explicitly

the number of hours that he had worked, a quintessential case

of "too much work." Again, this distinguishes this situation

from a case such as Voytko v. Conrail, 1996 WL 452934, *1

(6th Cir. Aug. 8, 1996) (unpublished), where even though the

ultimate injury may have been emotionally related, the

conditions involved were physical and extreme.

Finally, | would affirm the district court in this case

for the additional reason that on this record, Hayden cannot

prove negligence. He was completely in control of his work

situation. He could have rearranged his schedule or taken

8a

Panel Decision, 2/27/97

another job, but he then would have earned less money (JA

11-12). In light of Gotthall and Carlisle, 1 do not see how it

is possible for a worker to undertake willingly a job that is

acceptable under the union labor agreement, when he need not

do so in order to retain his employment, and then complain

that the quantity of work has given him a heart attack.

The additional claim of negligence based on the

company's failure to administer an annual physical exam,

after telling him that they would do so, is insufficient under

the conditions of this case when there is no indication that

Hayden ever asked for the exam, nor that he forewent any

other treatment in reliance upon the Conrail statement. In fact,

Hayden had continued to visit his own doctor, and that doctor

did not detect any problems or suggest any treatment that

would have prevented the heart attack.

I therefore respectfully dissent.

9a

APPENDIX C

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

[Filed May 1, 1995]

Case No. 3:93 CV 7007

JAMES HAYDEN,

Plaintiff,

CONSOLIDATED RAIL

CORPORATION,

Defendant.

a Te oe I Se a ee eee ee

MEMORANDUM OPINION

KATZ, J.

This matter comes before the Court for determination

on Defendant's motion for summary judgment pursuant to

Fed. R. Civ. P. Rule 56. Defendant's motion is supported by

a memorandum of law, the pleadings, and various deposition

and affidavit testimony. The Court has reviewed the Plaintiff's

brief in response to the motion for summary judgment and the

briefs of the parties supplemental to the initial briefs each has

filed.

10a

ate sires Baik

nile bi etate ak ee ~

District Court Decision, 5/1/95

I. FACTUAL BACKGROUND

Tie facts of this case are relatively uncontroverted.

Plaintiff, James Hayden, commenced working for Defendant

Consolidated Rail Corporation ("Conrail") in 1963. He

sustained a myocardial infarction in 1973, which heart attack

was immediately reported to the Defendant. At that time he

was off work for six months, after which a doctor retained by

Conrail gave Plaintiff a physical and authorized him to return

to work. In 1975 Plaintiff had a second heart problem, which

was either a heart attack or an artery problem, and again he

was off work for approximately six months, after which he

was again evaluated and returned to work. At no time between

1975 when the Plaintiff returned to work until June of 1992

was Plaintiff treated regarding his artery or heart condition.

No restrictions or limitations were placed upon his

employment activities by his physicians or by Conrail

physicians after review of reports by Plaintiff's doctors.

During that seventeen year period, the only medication which

was ordered by physicians to be taken by the Plaintiff was a

daily aspirin and daily medication to maintain an acceptable

cholesterol level.

In 1983 the Plaintiff relocated to Toledo, Ohio and

came under the care of a board certified cardiologist, Pooran

Barman, M.D. In 1989, Plaintiff was requested to participate

in Conrail's routine physical program and was eventually

referred to Conrail's medical director in Dearborn, M ichigan.

There ensued correspondence between physicians, clearly

indicating that Conrail's physician was aware of the Plaintiff's

medical history. Dr. Barman corresponded with the medical

director of Conrail on August 29, 1989, which letter related

the history and current evaluation of the Plaintiff. At that time

lla

District Court Decision, 5/1/95

Plaintiff was asymptomatic and no medications other than

daily aspirin and Lopid were prescribed.

In June 1992 Plaintiff returned from vacation to work

on June 23, 1992 and the following day awoke with pains in

his arms. Plaintiff was having his third myocardial infarction.

Dr. Barman performed a cardiac catheterization which

revealed this heart attack.

At the time of this latest heart attack, Plaintiff had

been for some time on the conductor's extra list, which is a

rotating pool of conductors capable of being called for work

assignments as their name came up on the list. It is clear that

Plaintiff was called more often than by lot, primarily because

of his experience and the fact that he was a willing and able

worker who did not propound excuses when he did not feel

like going to work.

Il. SUMMARY JUDGMENT STANDARD

As an initial matter, the Court sets forth the relative

burdens of the parties once a motion for summary judgment,

is made. Summary judgment must be entered "against a party

who fails to make a showing sufficient to establish the

existence of an element essential to that party's case, and on

which that party will bear the burden of proof at trial."

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Of

course, the moving party always bears the initial

responsibility of informing the district court of the basis for

its motion, and identifying those portions of "the pleadings,

depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any," which it believes

demonstrate the absence of a genuine issue of material fact.

12a

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5

£

+

3

:

District Court Decision, 5/1/95

477 U.S. at 323. The burden then shifts to the nonmoving

party who "must set forth specific facts showing that there is

a genuine issue for trial." Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 250 (1986) (quoting Fed. R. Civ. P. 56(e)).

Once the burden of production has so shifted, the party

opposing summary judgment cannot rest on its pleadings or

merely reassert its previous allegations. It is not sufficient to

"simply show that there is some metaphysical doubt as to the

material facts." Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 586 (1986). Rather, Rule 56(e)

"requires the nonmoving party to go beyond the [unverified]

pleadings" and present some type of evidentiary material in

support of its position. Celotex Corp., 477 U.S. at 324.

Summary judgment shall be rendered if the pleadings,

depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show there is no

genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law. Fed. R. Civ. P.

56(c).

lil. ELEMENTS OF NEGLIGENCE

ALLEGED BY PLAINTIFF

While there are varying claims of negligence asserted

by the Plaintiff, the gravamen of his claims can be reduced to

two significant issues. The first and primary issue is

Plaintiff's claim that "Defendant, with full knowledge of

Plaintiff's pre-existing heart condition, required, Plaintiff to

work an excessive and inordinate number of hours, and that

this work pattern had been in effect for more than the

immediate preceding year." In short, Plaintiff alleges that he

was overworked. Additionally, Plaintiff alleges that the

13a

District Court Decision, 5/1/95

Defendant in the late 1980s articulated a requirement that

Plaintiff submit to an annual physical by company physicians,

but after the first such physical no additional physicals were

given. There is no indication from the record that Plaintiff

requested such physicals, that Defendant demanded Plaintiff

submit to such annual physicals, or that any such annual

physicals would have revealed a condition which would gave

required a contraction of Plaintiffs work regimen.

To support its primary allegation of negligence,

Plaintiff has asserted that there was a planned reduction in

work force which resulted in this Plaintiff, as well as others,

having to work more days and hours than reasonably should

have been required. With respect to this allegation, there is

considerable disagreement between Plaintiffs witnesses and

tuuse of the Defendant's, not as to the reduction in work

force, but as to the need for additional personnel and the

reasons for such reduction.

IV. FEDERAL EMPLOYER'S LIABILITY ACT

The Federal Employer's Liability Act ("FELA"), 45

U.S. C. § 51 et seq., is a broad remedial statute which is to

be construed liberally in order to effectuate its purposes. Urie

v. Thompson, 337 U.S. 163 (1949); Green v. River T.R. Co.,

763 F.2d 805 (6th Cir. 1985). Section 1 of the FELA

provides in part:

Every common carrier by railroad while

engaging in [interstate] commerce *** shall be

liable in damages to any person suffering

injury while he is employed by such carrier in

such commerce *** resulting in whole or in

l4a

District Court Decision, 5/1/95

part from the negligence of [the carrier]***

Cases abound which evidence the liberal spirit of the Act, and

that the law requires only a minimum amount of evidence to

establish liability under the FELA. The proof needed to get to

a jury in an FELA case is merely whether "employer

negligence played any part, even the slightest, in producing

the injury." Cons. Rail Corp. v. Gottshall, 114 S.Ct. 2396,

2404 (1994), citing Rogers v. Missouri Pacific R.R., 352 U.

S. 500, 506 (1957).

As articulated by the Supreme Court, the FELA "does

not make the employer the insurer of the safety of his

employees while they are on duty, the basis of his liability is

his negligence, not the fact that injuries occur." Jd. It is clear

that the traditional common law negligence elements of duty,

breach, causation and damages remain applicable. Moody v.

Boston & Main Corp., 921 F.2d 1 (1990); Robert v. Cons.

Rail Corp., 832 F.2d 3 (Ist Cir. 1987).

V. THE CARLISLE CASE

While the Defendant had initially based its summary

judgment motion on other issues and cases, it is clear that the

case upon which it now relies is the Carlisle case, one of the

branches in Conrail v. Gottshall cited above.

Briefly stated, the Carlisle case involved a dispatcher

for Conrail who was responsible for the efficient movement

of passengers and cargo. There was no doubt that poor

equipment and staff reductions made the job extremely taxing

and stressful. The record indicated that railroad workers

complained on a regular basis about safety problems. In 1988

lSa

District Court Decision, 5/1/95

Carlisle was promoted to train master and given more hours,

more responsibilities and incurred resultant stress. He began

to experience insomnia, headaches, depression and weight

loss. After working a period of weeks in which he put in 12 -

15 hour shifts, he suffered a nervous breakdown. The

resultant litigation under the FELA was for negligent

infliction of emotional distress. Plaintiff Carlisle asserted

that Conrail breached its duty to provide him a safe workplace

by forcing him to work under unreasonably stressful

conditions, causing his illness.

The Third Circuit affirmed the District Court's ruling

permitting such claim to go forward. It concluded that the

conditions of the case made it reasonably foreseeable that such

unsafe conditions would lead to the Plaintiffs injuries.

The Gottshall and Carlisle cases were joined before

the Supreme Court. The Court reversed the Third Circuit and

rejected the foreseeability test it had applied. In its' opinion

the Court set forth a new test for emotional distress cases

brought under the FELA. The Court noted that Carlisle's

injury was "mental or emotional harm (such as fright or

anxiety) that is caused by the negligence of another and that

is not directly brought about by a physical injury, but that

may manifest itself in physical symptoms." /d. at 2405. The

Court reviewed the common law of negligent infliction of

emotional distress and held that the right of recovery for such

an injury is limited to Plaintiffs who are within the "zone of

danger." The zone of danger test limits recovery to those

"who sustain a physical impact as a result of Defendant's

negligent conduct, or who are placed in immediate risk of

physical harm by that conduct." /d. at 2406.

16a

i

j

District Court Decision, 5/1/95

In its application of the zone of danger test to

Carlisle's claim the Court determined that there was no event

or occurrence which caused Carlisle to sustain physical

impact or which placed Carlisle in imminent risk of physical

harm. (The core of Carlisle's complaint was that he had been

given too much -- not too dangerous work - to do). /d. at

2412. The Court ruled:

We find no support in the common law for the

[Third Circuit's] unprecedented holding,

which would impose a duty to avoid creating

a stressful work environment, and thereby

dramatically expand employer's FELA liability

to cover the stresses and strains of everyday

employment. Indeed, the Third Circuit's ruling

would tend to make railroads the insurer's of

the emotional well being and mental health of

their employees. We have made clear,

however, that FELA is not an insurance

Statute.

Id. at 2409.

VI. APPLICATION OF THE CARLISLE CASE TO

PLAINTIFF'S CLAIM

Defendant claims that the Carlisle decision is

dispositive of the instant case. It perceives that the Plaintiff’ s

claims are for negligent infliction of stress and emotional

distress which Plaintiff claims resulted in a third heart attack.

Pursuant to the decision in the Carlisle case, if it controls,

Plaintiff would be barred from recovery because of his

exclusion from the zone of danger coverage - there was no

17a

District Court Decision, 5/1/95

"injury." Hayden does not allege any direct physical impact

or imminent threat of physical harm; therefore, according to

the Defendant, Plaintiff's claim for emotional distress must

fail and Defendant's motion for Summary judgment must be

granted.

In addition to relying upon the Carlisle case Defendant

relies upon this Court's decision in Szymanski, Administratrix

v. Columbia Transportation Co., a division of Oglebay-

Norton Co., Case No. 3:93 CV 7423, rendered on January

30, 1995, and the decision of the District Court for the

Northern District of New York in Capriotti v. Cons. Rail,

1995 WL 115712. This case is different from Szymanski in

that there the Plaintiff's decedent claimed not mental or

emotional damage, but rather claimed that the heart attack he

experienced was caused by arduous physical labor in

combination with general stress. In this case, the Plaintiff

alleges that he was merely overworked, which created stress

resulting in the heart attack he experienced.

The Eastern District of Pennsylvania was faced with

a similar contention in Dennis v. Cons. Rail Corp., 1994 WL

494453 (E.D. Pa. Sept. 7, 1994). In that case the Plaintiff

tried to characterize his claim as one for purely physical

injury rather than stress and emotional distress leading to the

heart attack. The District Court rejected the Plaintiff's

contentions, reasoning that the claim was indeed the same as

Carlisle - a claim for too much, not too dangerous, work.

Similarly, this Court rejects Plaintiff's reasoning and

his claim must fail under the Carlisle case. There is no claim

by the Plaintiff which identifies any condition existing at

Conrail which was dangerous? The gravamen of the

18a

aXe eee

District Court Decision, 5/1/95

Plaintiff's claim is that the cumulative effect of excessive

duties and hours of work created a stressful environment

which caused the heart attack of which he complains. The

core of his complaint is identical to that of Carlisle: "That he

had been given too much -not too dangerous - work to do."

Carlisle, at 114 S.Ct. 2412.

Again, Plaintiff asserts that the harm he is claiming is

fundamentally different from the harm suffered by Carlisle in

that Plaintiff is not claiming mental or emotional harm, but

rather is claiming that the heart attack was a physical result of

long hours of labor which produced general stress. Plaintiff

suffered a heart attack while Carlisle suffered physical

manifestations of stress such as nausea, insomnia etc. As this

Court stated in Szymanski, "although the physical

manifestations suffered by Plaintiff may be different from

those suffered by Carlisle, the cause and effect is the same.

Both men claim to have suffered physical illnesses due to

overwork."

The instant case, like the Carlisle case, involves "too

much - not too dangerous work." The acts of the Defendant

in this case are not nearly as egregious as the acts by the

Defendant in the Carlisle case, and this Court cannot find a

distinction from the result in the Carlisle case and that which

it must reach in this case. '

This conclusion is further supported by the well-

reasoned decision of the District Court for Western Division of

New York in Barlette v. Cons. Rail Corp., Case No. 92-CV251S,

1994 WL 721342 (WDNY Dec. 6, 1994). In that case, the Plaintiff

alleged that Defendant negligently retained and failed to properly

supervise his supervisor, who subjected Plaintiff to harassment and

19a

District Court Decision, 5/1/95

VII. CONCLUSION

For the reasons set forth above, this Court will grant

Defendant's motion for summary judgment.

IT IS SO ORDERED.

/s/

DAVID A. KATZ

U.S. DISTRICT JUDGE

threatened termination of his employment, causing emotional

distress with physical manifestations. The Court held that Plaintiff's

cause of action did not fall within the zone of danger test enunciated

in the Gotschall and Carlisle cases and, therefore, did not state a

cause of action under the FELA.

20a

District Court Decision, 5/1/95

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

[Filed May 1, 1995]

Case No. 3:93 CV 7007

JAMES HAYDEN.

)

Plaintiff, )

)

Vv. )

)

CONSOLIDATED RAIL )

CORPORATION, )

Defendant. )

cs

|

JUDGMENT ENTRY

KATZ, J.

For the reasons stated in the Memorandum Opinion

filed contemporaneously with this entry, IT IS HEREBY

ORDERED, ADJUDGED and DECREED that Defendant’s

motion for summary judgment (Doc. No. 20) is granted.

/s/

DAVID A. KATZ

U.S. DISTRICT JUDGE

2la

APPENDIX D

AFFIDAVIT

STATE OF OHIO )

:SS )

COUNTY OF LUCAS )

I, William Brown, being first duly sworn, depose and state as

follows:

l. I am a retired railroad employee. I have been

employed by the Consolidated Rail

Corporation and its predecessor railroads since

1945 and retired on or about August 1, 1988.

2. For the last twelve (12) years of my

employment, I was employed by Consolidated

Rail Corporation as a crew dispatcher. My

primary duty was to assemble train crews, by

telephone, and order them to work.

a: During the twelve (12) years that I was a crew

dispatcher for the Consolidated Rail

Corporation, virtually all of my employment

was at Toledo, Ohio at either the Central

Union Terminal or at Stanley Yard. During the

years that I was crew dispatcher for

Consolidated Rail Corporation it was my

experience that the railroad put extensive

pressure on myself and all other crew

dispatchers working in the Toledo area. It was

22a

Affidavit of William Brown

my opinion and experience that my supervisors

did not care how we managed to assemble the

crews as long as the crews were called and

assembled. We worked under the threat of

penalty if we ever failed to adequately and

timely supply the crews that were required.

It was extremely common for men to use

illness or sickness as an excuse for their

unavailability. It was my experience as a

crewcaller, that it was the custom and practice

of the trainmen to be deceptive and dishonest

when called in to work. Many times the same

men who would indicate that they were

unavailable because of illness or sickness

would also confide in me that they were using

this explanation as an excuse when they were

not actually sick or ill.

As a result of the men lying about sickness and

illness, it became the practice of myself and

other crew callers to always call first those

men who we knew would not lie even through

we called them a disproportionate number of

times.

To my knowledge and experience, James

Hayden was a conductor who | frequently

called. The number of calls to him were

disproportionate and exceeded the number of

calls to most other men. Mr. Hayden would

almost never rely upon sickness or illness as

an excuse for not making himself available.

23a

Affidavit of William Brown

7 I knew from conversations with Mr. Hayden

that he had heart problems. He would often tell

me that all of this work was going to give him

another heart attack. I told him that this was

none of my concern; I had a job to do.

Further, because his name continued to appear

on duty lists, I would call him and he would

rarely refuse to accept his work assignments.

Many times Mr. Hayden would question as to

whether I was "picking on" him because he

and a few others were called far more

frequently than the typical or average

conductor-brakeman in the Toledo area.

9. While I do believe it is a fair statement to say

that we did "pick on" Mr. Hayden, we also

"picked on" some other individuals whose

names I cannot recall at this time.

FURTHER AFFIANT SAYETH NOT.

/s/

WILLIAM BROWN

Sworn to before m and subscribed in my presence

appeared William Brown this 24" day of January, 1995.

/s/

E.J. LEIZERMAN, Attorney at Law

24a

APPENDIX E

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

Case No. 3:93 CV 7007

JAMES

Plaintiff,

¥,

CONSO

CORPORATION,

Defendant.

HAYDEN,

LIDATED RAIL

Robert Tschirret, being duly sworn, states as follows:

l.

AFFIDAVIT OF ROBERT TSCHIRRET

and the same today.

25a

Since March 6, 1968, I have been continuously

employed by Consolidated Rail Corporation

and its predecessor, Penn Central Railroad. as

a road brakeman or road conductor, whose

duties and responsibilities are essentially one

Approximately sixty (60) days after my date

of service, I became a member of Local 2

(formerly Local 550) of the United

Affidavit of Robert Tschirret

Transportation Union (UTU) and have

remained in good standing to date. During my

membership with the United Transportation

Union I have served as Parliamentarian, Vice

President and President of Local 2 (formerly

Local 550). I am currently President and have

continuously remained our Local's president

for the past fifteen (15) years. I have also

served as a delegate to the National

Convention of the UTU.

a. As President of Local 2, I have participated in

discussions and negotiations with my

counterparts within Consolidated’ Rail

Corporation’s (hereinafter referred to as

Conrail) Dearborn Division such as Phillip

Filippelli, who is Director of Crew

Dispatchers and his predecessor and their

counterparts, in Conrail management regarding

manpower and associated issues.

4. As part of our contractual agreements with

conrail under the Railway Labor Act, there

exists a "Black Book", with which I am

familiar, and which sets forth the procedures

by which qualified trainmen, such as James

Hayden, are called from their assigned pools.

7 It has been my experience that Mr. Filippelli

or others within Conrail have deviated from

the established procedures for calling such as

James Hayden to work out of the Dearborn

Division, resulting in some individuals, such

26a

Affidavit of Robert Tschirret

as James Hayden, being called a

disproportionate or excessive number of times.

6. I has been my experience that there has been a

depletion of conductor/brakeman manpower in

the Dearborn Division over the past five (5) to

ten (10) years. As far back as the early

1980’s, Conrail started a program to buy-out

conductor/brakeman jobs, significantly

reducing the number of qualified conductors

available for the same work, thereby

increasing the workload. Yet, by 1990 or

1991, rail traffic increased, thereby increasing

the stress and strain on the conductors, such as

James Hayden, qualified to work in their

respective pools.

¥ Further, in the early 1980’s, Conrail initiated

a program to reduce the work force by

furloughing or laying off conductor/brakeman

positions. This program eventually resulted in

the lay off of approximately 250 men in what

is now known as the Dearborn Division. By

the late 1980’s and early 1990’s, it became

apparent that these men were desperately

needed to relieve the overworking and physical

and mental stress of the available

conductor/brakeman, such as James Hayden.

8. I have known James Hayden for approximately

75 years, and I have personal knowledge that

he was an employee assigned to the Toledo

West Extra Conductor Pool/Board.

27a

Affidavit of Robert Tschirret

9.

10.

11.

hie;

33:

Further, based on my knowledge of the

operation of Mr. Hayden's pool, It is my

opinion that the railroad's conduct in

diminishing the number of qualified

conductors in the pool, placed unusual physical

and mental stress on our conductors.

We have made repeated complaints to Mr.

Filippelli and his predecessor about the

inadequate number of qualified conductors,

such as James Hayden, assigned to the

conductor pool.

I have been presented with, and have read

portions of, the deposition of Philip Filippelli

taken in this case on December 28, 1994. I

strongly disagree with his contention or

testimony that it was the representatives of the

UTU who resisted the employment or addition

of more men for the conductor pools, such as

Mr. Hayden's. Clearly, it was Mr. Filippelli

and other representatives of Conrail who

refused to hire more men.

Further, it is my opinion that because of

Conrail's failure or refusal to hire more men in

the conductor pool, it was dangerous and

hazardous to the health and safety of our men,

such as James Hayden.

During the negotiating sessions with Mr.

Filippelli, his counterparts, or his predecessor,

it was my position as well as that of my

28a

Affidavit of Robert Tschirret

14.

15.

16.

17.

colleagues within Local 2 (Local 550) to

demand, if not beg, for the return of the men

who had been laid off, as referred to in

paragraph 7.

While Mr. Filippelli acknowledged the need

for more men as early as 1990 or 1991, he

either deliberately failed to or was not given

authority by his superiors to bring these men

back until approximately the end of 1992 or

the beginning of 1993, clearly after Mr.

Hayden's third heart attack.

It was the ongoing policy of the union to ask

the railroad to call back these laid off men for

the sake of the health and safety of the

conductors currently working. Conrail

consistently refused to do so until well after

Mr. Hayden's heart attack in June, 1992.

Both the union and myself, as well as Mr.

Filippelli's office knew of Mr. Hayden's heart

condition as his name was used by example in

the course of our discussions and negotiations

regarding inadequate manpower and _ its

accompanying dangers and hazards.

Based upon my experience and knowledge

through my years of employment as a

conductor/brakeman and service to my union

I consider myself to be an expert on railway

management and safety of

conductor/brakemen. It is my opinion to a

29a

Affidavit of Robert Tschirret

reasonable degree of probability within my

expertise, as are all other opinions expressed

herein, that the conduct and policy of

Consolidated Rail Corporation in permitting

the reduction of qualified men available in the

conductor/brakeman pools for which James

Hayden was employed, was at worst, a wanton

disregard for the health and safety of the

conductor/brakemen, such as James Hayden

and, at best, was negligent conduct by

Consolidated Rail Corporation.

FURTHER AFFIANT SAYETH NOT.

/s/

ROBERT TSCHIRRET

Sworn to before me and subscribed in my presence

appeared Robert Tschirret this 2" day of February, 1995.

/s/

PATSY E. FERGUSON,

NOTARY PUBLIC

30a

APPENDIX F

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

Case No. 3:93 CV 7007

JAMES HAYDEN,

Plaintiff,

wa

CONSOLIDATED RAIL

CORPORATION,

Defendant.

~~” al — — _— ~~ —- a ee

AFFIDAVIT OF JAMES HAYDEN

James Hayden, being duly sworn, states as follows:

l.

I am the plaintiff in the within action and have

personal knowledge of the facts contained

herein.

When my deposition was taken on June 24,

1993, I did not have my time book with me. I

did have a chart that I had prepared from my

time book which was marked as a deposition

exhibit.

3la

Affidavit of James Hayden

z In this chart, I attempted to show hours on

duty and off duty over a period of time. I

believe there was some confusion regarding

my verbal explanation of the chart and,

therefore, I submit the following written

narrative of a typical work week in the months

just preceding my heart attack of June 24,

1992.

4. I have chosen the week of January 14, 1992

through January 21, 1992 as _ being

representative of the type of work schedule I

had to contend with. Some weeks were not as

bad; some were worse. The information which

follows is taken directly from the notations I

made in my time book contemporaneously

with the events stated. My time book is

available for the court's inspection should it so

desire:

On January 14, 1992 I was called at home at

7:00 p.m. I traveled to Central Union Terminal in

Toledo, Ohio and went on duty at 9:00 p.m., taking

train number TOEL 4 to Elkhart, Indiana. I was off

duty in Elkhart at 6:00 a.m. on January 15, 1992 and

arrived at my motel in Elkhart at 7:30 a.m. (Typically

it takes one and one-half hours from the time I go off

duty in Elkhart to the time I check into the motel). At

that time, I would have gone to sleep in my motel

room.

On January 15, 1992, I was subject to call in

Elkhart at 12:00 noon and thus, I had to remain in or

32a

Affidavit of James Hayden

around my motel room. I was actually called at 8:35

p.m. at went on duty in Elkhart at 10:35 p.m., taking

train number ELCO 5 to Toledo, Ohio. I was off duty

in Toledo at 6:45 a.m. on January 16, 1992 and

returned home and went to sleep. Typically, it would

have taken me 45 minutes to washup, check out and

drive home.

I was subject to call on January 16, 1992 at

12:45 p.m. and, accordingly, remained at home until

I was called at 8:35 p.m., going on duty at Central

Union Terminal at 10:35 p.m. on January 16, 1992,

to take train number TV 79 to Elkhart.

I was off duty in Elkhart at 2:45 a.m. on

January 17, 1992, went to my motel, slept for about

six hours, and was subject to call at 8:45 a.m. on

January 17, 1992. I remained in the motel until I was

actually called in Elkhart at 5:00 p.m. on January 17,

1992, going on duty at 7..00 p.m. for train number

CJSA 7, to Toledo.

I was off duty in Toledo at 11:30 p.m. on

January 17, 1992 and got home at approximately

midnight. I saw my wife briefly and went to Sleep. |

was subject to call at 5:30 a.m. on January 18, 1992

and accordingly stayed home all day until I was called

at 6:00 p.m. to go on duty at Central Union Terminal

at 8:00 p.m. to take train number BUEL 8 to Elkhart.

I was off duty in Elkhart at 12:45 a.m. on

January 19, 1992. Upon my arrival in Elkhart, I was

told to take four hours off and be prepared to go back

33a

Affidavit of James Hayden

on duty at 4:45 a.m. on January 19, 1992 to take train

number ELPI 9X to Toledo, arriving in Toledo at

9:45 a.m.

I was off duty in Toledo at 9:45 a.m. on

January 19, 1992 cleaned up, checked out and went

home, arriving at approximately 10:30 a.m. and slept

approximately 4-5 hours before being subject to

mandatory availability at 3:45 p.m. on January 19,

1992. I was called at 6:00 p.m. on January going on

duty at 8:00 p.m. for train number OIEL 8 to Elkhart.

I was off duty in Elkhart at 2:00 a.m. on

January 20, 1992 and subject to call at 8:00 a.m. on

January 20, 1992. I was called at 6:00 p.m., going on

duty at 8:00 p.m. on January 20, 1992 for train

number PXPI 9 to Toledo. I went off duty in Toledo

at 4:00 a.m. on January 21, 1992.

Of the 168 hours in the week, I was bound to

the railroad for 112 hours and 75 minutes either on

duty, subject to call, traveling to or from the job, or

getting required sleep while out of town. That left 55

hours and 35 minutes at home, probably 20-25 of

which was sleep time, leaving approximately 30 hours

truly free to spend with my family or for myself. Of

course, some of that was late at night or early in the

morning.

a My attorney, E. J. Leizerman, has provided

me with a copy of the Affidavit of William

Brown dated January 23, 1995, which I have

read.

34a

Affidavit of James Hayden

6.

10.

11.

Although I know that Mr. Brown retired in

1989, I can state that the operations of Conrail

or its crew callers never really changed from

that date until the date of my heart attack in

1992.

During the years 1991 and 1992 up to the time

of my heart attack, I continued to complain to

the various dispatchers who would call me.

that they were picking on me and asked why

were they always calling me?

I also voiced my concerns to them about my

Cardiac condition, as I had done with Mr.

Brown as he has indicated in his Affidavit.

The most common response I would get from

the crew callers was that unless I was prepared

to tell them I was sick or ill, they would

continue to call me.

In fact, to give but one example of the

frequency in which I was called. during my

vacation in June, 1992, just prior to my last

heart attack, I received a call at home to take

a train to Chicago. The crew caller told me

that they called me because they had no

qualified people available at that time.

It was well known to me that through attrition

and buy-outs, Conrail had a shortage of

available and qualified conductors. Had more

men been available, I would not have been

35a

Affidavit of James Hayden

subjected to the type of schedule shown above.

FURTHER AFFIANT SAYETH NOT.

/s/

JAMES HAYDEN

Sworn to before me and subscribed in my presence

appeared James Hayden this 30" day of January, 1995.

/s/

PATSY E. FERGUSON

Notary Public

36a

APPENDIX G

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

Case No. 3:93 CV 7007

JAMES HAYDEN.

Plaintiff,

V.

CONSOLIDATED RAIL

CORPORATION,

Defendant.

NN ee See ee SN”

AFFIDAVIT OF SHELDON L.

BROWNSTEIN, M.D.

Sheldon L. Brownstein, M.D., being duly sworn states as

follows:

‘ I am a Board Certified Cardiologist, licensed

to practice medicine in the State of Ohio. ]

have been James Hayden's treating

Cardiologist since June 26, 1992.

: I have reviewed and relied upon to the history

which I took from Mr. Hayden, as well as

portions of his deposition of June 24, 1993.

37a

Affidavit of Sheldon Brownstein, M.D.

Mr. Hayden's Affidavit of January 30, 1995,

and portions of the deposition of Taras

Nowosiwsky, M.D. taken on January 4, 1995,

in addition to portions of Mr. Hayden's

medical records.

On or about June 24, 1992, prior to my seeing

Mr. Hayden, he had developed an enzymatic

myocardial infarction, and further testing

demonstrated that his injection fraction was

25%.

A subsequent’ electrophysiology study

demonstrated that Mr. Hayden had a very

rapid ventricular tachycardia which was

refractory to medication. Accordingly, on July

7, 1992, Mr. Hayden underwent implantation

of an automatic cardioverter defibrillator for

the purpose of protecting him from dizzy

spells and possible sudden cardiac death.

In the history that was given to me by Mr.

Hayden, he stated that he was a

brakeman/conductor for Consolidated Rail

Corporation, and that he had been required to

report to work on an extremely frequent basis

between January 1, 1992 and June 24, 1992.

I was also aware, based upon the history given

to me by Mr. Hayden, that he had a pre-

existing coronary condition prior to the

myocardial infarction of June 24, 1992, with

past episodes of myocardial infarctions (heart

38a

Affidavit of Sheldon Brownstein, M.D.

10.

attacks). This history clearly was known to

Mr. Hayden's employer, Consolidated Rail

Corporation.

Based upon my review of all of the above, it is

my opinion that Conrail was negligent in not

requiring a modification or reduction of Mr.

Hayden's work schedule, and that the work

regimen that Mr. Hayden was required to

maintain from at least January 1, 1992 to the

date of his myocardial infarction of June 24,

1992 was more likely than not a contributing

factor to that myocardial infarction.

It is further my opinion that the myocardial

infarction of June, 1992 was a direct proximate

cause or need for the permanent surgical

implantation of a internal cardioverter

defibrillator.

it is further my opinion that it was negligent,

Or not a reasonably safe work practice, to

require Mr. Hayden to work the hours he did

under the circumstances and in light of his well

known cardiological history.

I also note in reading the deposition of Dr.

Nowosiwsky that although initially Conrail

wanted Mr. Hayden to undergo annual medical

examinations (as opposed to the normal three

year examination), Conrail failed to follow up

on that and failed to require Mr. Hayden to

undergo annual examinations after 1989. It Is

39a

Affidavit of Sheldon Brownstein, M.D.

my opinion that given Mr. Hayden's history of

pre-existing myocardial infarctions and a 35%

ejection fraction the Consolidated Rail

Corporation medical department committed an

unsafe or negligent work practice in not

requiring or providing annual examinations by

a physician familiar with both Mr. Hayden's

medical history and the specific job demands

of the particular employee.

11. ‘It is my opinion that the failure to give an

annual examination by a physician familiar

with both Mr. Hayden’s medical history and

his specific job demands fell beneath

reasonable acceptable medical standard given

the Conrail medical department’s prior

knowledge of Mr. Hayden’s medical history.

12. All of the opinions expressed herein are stated

to a reasonable degree of medical probability.

FURTHER AFFIANT SAYETH NOT.

/s/

Sheldon L. Brownstein, M.D.

Sworn to before me and subscribed in my presence

appeared Sheldon L. Brownstein, M.D. this 31" day of

January, 1995.

/s/

E.J. Leizerman, Attorney at Law

40a

APPENDIX H

NOTICE: THIS OPINION HAS NOT BEEN RELEASED

FOR PUBLICATION IN THE PERMANENT LAW

REPORTS. IT MAY BE SUBJECT TO A MOTION FOR

REHEARING OR TRANSFER. IT MAY BE MODIFIED,

SUPERSEDED OR WITHDRAWN.

JAMIE BAILEY, Plaintiff-Respondent,

P

NORFOLK AND WESTERN

RAILWAY COMPANY, Defendant-Appellant.

No. 70194

COURT OF APPEALS OF MISSOURI,

EASTERN DISTRICT, DIVISION FOUR

March 18, 1997

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

Julian L. Bush.

KAROHL, Judge

*1 Former employer, Norfolk and Western Railway

Company (N & W), appeals from: (1) a judgment granting

former employee, Jamie Bailey (Bailey), $404,475. on his

claim under the Federal Employers’ Liability Act (FELA) 45

U.S.C. §§ 51-60, for damages for coronary artery disease and

gastritis allegedly caused by N & W's negligence; and, (2) an

order overruling its Motion for Judgment Notwithstanding the

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Bailey v. Norfolk and Western Railway Company

Verdict, or Remittitur, or in the Alternative, Motion for a

New Trial.

FACTS

Bailey worked as an "over-the-road" brakeman for N & W

from 1962 until 1990. Bailey would ride on the train from one

rail yard to another, and perform many tasks to keep the train

running. One of his duties was to make repairs when

necessary. The work of a brakeman is hard work.

Bailey was an on-call worker. He was subject to be called in,

"24 hours a day, 7 days a week, 365 days out of the year."

The on-call nature of his job resulted in a very erratic work

schedule. He would sometimes work in the morning, other

times in the evening and still other times in the middle of the

night. It was very difficult to anticipate when he would be

called for his next shift. He testified that as a result of his

unpredictable work schedule, "I couldn't get rest. I didn't

know when to go to sleep, or when to get up, I couldn't, I just

couldn't get any rest."

Bailey's difficulty in getting adequate rest was exacerbated by

the away-from-home sleeping dormitory provided by N & W

at its North Kansas City yard. Other employees of N & W

testified the dormitory was not a good place to get sleep. The

dormitory was too noisy, the temperature too hot or too cold

and the lighting too bright.

The walls of the dormitory were not well insulated against

noise. The dormitory was less than 40 feet away from

refueling tracks where engines were switched and cars

banged. Also, the sound of trains traveling 25 miles an hour

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Bailey v. Norfolk and Western Railway Company

along the nearby mainline tracks could be heard within the

dormitory. The yard received a lot of outside traffic. The

noise of grocery and trash trucks would crash through the

dormitory. The sounds of employees working in the yard with

jack hammers and other maintenance equipment could be

heard within the dormitory. One employee testified, "the

sound went completely through the dormitory. . . . like

you['re] walking down the street and walking by somebody

with a jack hammer." Many noises coming from within the

dormitory would also disrupt the sleep of employees

including: a "tremendous banging noise" from the climate

control system, knocks on doors for employees who were

called back to work and scraping noises of beds being moved

by cleaning personnel.

The lack of adequate climate control in the dormitory also

disrupted employees' sleep. The manager of the dormitory

testified, "for a long time the thermostat contro] was kept

locked up and we couldn't get [to] it to control it." The vent

covers were regularly broken or missing. In the summer, the

air conditioning ran constantly, cooling the rooms so much

employees would have to open windows to warm the rooms.

letting in all the outside noise. In the winter, the rooms near

the boilers would have floor temperatures of up to 95.7

degrees and the rooms further away would get so cold that on

one occasion ice formed on an inside wall.

*2 The lighting in the dormitory also disrupted sleep. It was

difficult to create a dark sleeping environment when

attempting to rest during daylight hours. According to Bailey,

"half the rooms didn't have curtains."

N & W had notice that the dormitory was not conducive to

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Bailey v. Norfolk and Western Railway Company

sleep. The manager of the dormitory received several

complaints about the sleeping conditions. She relayed these

complaints to her supervisors.

The Railway Labor Executive Association (RLEA) represents

railroad workers before Congress, the Interstate Commerce

Commission and the Federal Railroad Administration (FRA).

In 1974, RLEA filed a petition with FRA requesting sleeping

facilities be moved away from the yards where railroad

switching occurs because the noise prevented railroad workers

from receiving adequate rest. In 1976, Congress amended the

Hours of Service Act making it unlawful for a railroad to

provided away-from-home employee lodging which does not

provide a meaningful opportunity for rest free from

interruptions caused by noise under the control of the

railroad. See 45 U.S.C. § 62(a)(3)(1976).

N & W also had constructive notice that inadequate rest could

cause health problems. One of N & W's experts agreed with

the proposition that "shift work, shift variability and sleep

deprivation over long periods of time endured chronically,

may contribute to the formation of coronary artery disease.”

The same expert also conceded that information on the

possible health consequences of inadequate rest has been

available to the railroad industry for a long time.

Bailey was diagnosed with ulcers in 1982 or 1983. In June

1989, he was diagnosed with coronary artery disease. He

underwent an angioplasty to open a blockage in excess of 90%

on the right side of his heart. In April 1990, Bailey retired

from N & W because of his heart and stomach conditions.

Since 1989, Bailey has been diagnosed with four other

blockages in his heart and arteries.

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Bailey v. Norfolk and Western Railway Company

At trial, four medical experts opined that Bailey's physical

injuries were partially caused by his hours of work and his

deprivation of sleep over his 28-year career. One doctor

testified:

the body has an internal clock, a very powerful clock,

circadian clock which dictates the time of day in which

you are maximally alert for sleeping. . . . So this

biological clock, we've learned more recently, is the

reason why shift workers have so much difficulty. The

biological clock intends, if we can Say it that way, for

you to be awake during the day and at sleep at night.

When that isn't the case, then there is physiological

consequences.

He also identified two health consequences resulting from the

disruption of the circadian clock: "The first is gastrointestinal

disease, most prominent there is ulcers, stomach ulcers. The

second is cardiovascular problems; angina, heart attacks,

heart pains . . ." and coronary artery occlusion. He concluded

that Bailey's work schedule and dormitory sleeping

environment provided to him during his 28-year career,

contributed to the cause of his gastritis and his coronary artery

disease.

DISCUSSION

*3 In its first point, N & W argues the trial court erred in

overruling its motions for directed verdict because Bailey had

failed to make a submissible case under FELA for heart

disease and gastritis. It contends Bailey failed to make a

submissible case because he failed to meet the United States

Supreme Court's "zone of danger" test.

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Bailey v. Norfolk and Western Railway Company

Section 1 of FELA provides that "every common carrier by

railroad . . . shall be liable in damages to any person suffering

injury while he is employed by such carrier . . . 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." 45 U.S.C. § 51.

N & W argues the United States Supreme Court in

Consolidated Rail Corp. v. Gottshall and Carlisle, 512 U.S.

532, 114 S. Ct. 2396, 129 L. Ed. 2d 427 (1994), held that

claims like Bailey's are not cognizable under FELA. N & W's

argument appears to rely on one of two propositions; either:

(1) Gottshall/Carlisle's "zone of danger" test limits recovery

under FELA for any kind of injury, even purely physical

ones, to employees "who sustain a physical impact as a result

of a defendant's negligent conduct, or who are placed in

immediate risk of physical harm by that conduct.” 114 S. Ct.

at 2406; or, (2) Bailey's claim is a work-related-stress claim

and such claims, even if they involve purely physical injuries,

are not cognizable because Bailey did not suffer his injuries

while he was within the "zone of danger."

To the extent N & W's argument relies on the first

proposition, it miusstates the Gottshall/Carlisle decision.

Gottshall/Carlisle does not stand for the proposition that only

claims for injuries, physical or otherwise, that are caused by

physical impact or the threat of imminent physical harm are

cognizable under FELA. The issue in Gottshall/Carlisle was

"the proper standard for evaluating claims for negligent

infliction of emotional distress that are brought under the

Federal Employers’ Liability Act." 114 S. Ct. at 2400. The

Court held "that claims for damages for negligent infliction of

emotional distress are cognizable under FELA." 114 S. Ct. at

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Bailey v. Norfolk and Western Railway Company

2407. However, it limited the scope of recovery for

negligently inflicted emotional distress under FELA to

emotional injuries, and related physical manifestations of the

emotional injuries, caused by a physical impact or the threat

of imminent physical harm. 114 S. Ct. at 2410-2411. The

Federal common law "zone of danger" test adopted by the

Gottshall/Carlisle Court was designed to limit the scope of

recovery for claims of negligent infliction of emotional

distress under FELA, and not for all FELA claims.

N & W's argument also appears to rely on the proposition that

Bailey's claim is a work-related-stress claim and such claims

are not cognizable under FELA. N & W relies on dicta in

Gottshall/Carlisle where the Court considered the claim of

Alan Carlisle. Carlisle was a trainmaster for Consolidated

Rail Corp. (Conrail). Reductions in staff required Carlisle to

take on additional duties and work long and erratic hours. As

a result Carlisle experienced insomnia, headaches. depression,

weight loss and eventually a nervous breakdown. Carlisle

sued Conrail for negligent infliction of emotional distress

under FELA. 114 S. Ct. at 2402. The Supreme Court held:

*4 Carlisle's work-stress-related claim plainly does

not fall within the common law's conception of the

zone of danger, and Carlisle makes no argument that

it does. Without any support in the common law for

such a claim, we will not take the radical step of

reading FELA as compensating for stress arising in

the ordinary course of employment. In short, the core

of Carlisle's complaint was that he "had been given

too much--not too dangerous--work to do. That is not

our idea of an FELA claim." Lancaster v. Norfolk and

Western Railway Company, 773 F.2d 807, 813.

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Bailey v. Norfolk and Western Railway Company

Id. at 2411-2412. (Our emphasis.)

N & W would extend this dicta to preclude claims for

injuries, even physical ones, which are based on a stressful

— work schedule. Bailey argues this dicta should not be

interpreted or construed in isolation. He argues in his brief:

it is clear that the Gottshall Court's plain intendment

in granting certiorari in the cases below was to resolve

the issue regarding the standard for cognizability of

F.E.L.A. claims for negligent infliction of emotional

distress. . . . When further considering the factual

context presented in the Gottshall and Carlisle cases,

it is clear that the "stress" alleged by those plaintiffs

was emotional distress. . . . With the foregoing in

mind, it is simply absurd to pull the above-quoted

"work-related stress" language from the Gottshall

decision and attempt to construe it separate and apart

from the entire context of the case, which focuses on

emotional injury.

There are cases which have interpreted Gottshall/Carlisle as

precluding such work-related-stress claims involving heart

diseases. See Dennis v. Consolidated Rail Corp., 1994 WL

494453 (E.D. Pa.); Capriotti v. Consolidated Rail Corp., 878

F. Supp. 429 (N.D. N.Y. 1995); Keith v. Consolidated Rail

Corp., U.S.Dist.Ct., E.D. of Michigan, Southern Division,

No. 95-CV-70216 (June 18, 1996). [FN1]

Even Bailey's authority, Walsh v. Consolidated Rail Corp.,

937 F. Supp. 380 (E.D. Pa. 1996), acknowledges,

[w]hile Gottshall purportedly limits the class of

potential claimants of negligent infliction of emotional

distress to those who actually fall within the relevant

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Bailey v. Norfolk and Western Railway Company

zone of danger, several courts have relied on this

decision when refusing to recognize a cause of action

under FELA to compensate for stress arising in the

ordinary course of employment.

Id. at 388. The Walsh court held, "FELA does not provide

relief for victims of routine, job related stress . . .." Id. at

389.

The plaintiff in Walsh filed a complaint against Conrail under

FELA, alleging that the railroad's negligence caused him to

suffer a stroke. Id. at 382. Walsh argued, "Conrail

inadequately staffed its operations, resulting in a more

strenuous work schedule; contracted with physicians who

failed to properly evaluate and treat his hypertension; and

required him to perform work beyond his Capacity and

aggravated his hypertension, a known disability." Id. at 383.

*5 The Walsh court first examined whether Walsh's injury

was emotional or physical. It held, "Gottshall's instructional

value lies largely in claims for negligent infliction of

emotional distress which present the same emotional injuries

(albeit with physical manifestations) that Carlisle and

Gottshall presented." 937 F. Supp. at 387. The court

determined,

Walsh presents a claim for negligent infliction of a

physical injury completely distinct from the emotional

and mental injuries addressed in Gottshall. . . . Walsh

does not assert that Conrail's negligence caused a

mental or emotional injury which then manifested

itself through physical symptoms, .. . . Indeed, his

case does not contain any "emotional" component:

notably absent from Walsh's Complaint is any mention

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Bailey v. Norfolk and Western Railway Company

of emotional injury.

Id. at 387-388. (Our emphasis.)

Similarly here, Bailey's alleged injuries, heart disease and

gastritis, were purely physical. His medical experts testified

his heart disease and gastritis were, in part, caused by the

inadequate sleeping facilities negligently maintained by N &

W. They testified N & W's inadequate sleeping facilities

caused Bailey's sleep deprivation and disrupted his "circadian

rhythms", a physiological and not a mental or an emotional

process, which ultimately caused his heart disease and

gastritis.

The Walsh court found support for its decision to distinguish

Walsh's claims from the emotional injuries discussed in

Gottshall/Carlisle from the policy considerations discussed in

that Supreme Court decision. The Gottshall/Carlisle Court

noted several policy considerations supported its imposition

of the "zone of danger" test for FELA claims of negligent

infliction of emotional distress. It observed that many of these

policy considerations were "based on the fundamental

differences between emotional and physical injuries."

Gottshall/Carlisle, 114 S. Ct. at 2405. It also observed,

[b]ecause [all of the causes] of emotional disturbance

[are] usually not as readily apparent as that of a

broken bone . . . [the] recognition of a cause of action

for [emotional] injury when not related to any physical

trauma may inundate judicial resources with a flood of

relatively trivial claims, many of which may be

imagined or falsified, and that liability may be

imposed for highly remote consequences of a negligent

act.

Id. citing Maloney v. Conroy, 208 Conn. 392, 397-398, 545

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Bailey v. Norfolk and Western Railway Company

A.2d 1059, 1061 (1988). The Court found the possibility of

the absence of finite limits on the number of persons who

might suffer emotional injury as a result of a given negligent

act, particularly significant. Id. The Walsh court held that the

Supreme Court's concerns were not relevant to this claim

because of the certainty and predictability of the physical

injury alleged. Walsh, 937 F. Supp. at 388.

We also review a case where the Supreme Court's concerns

are inapplicable. Bailey's physical injuries were certain and

predictable. Allowing Bailey's claim would not result in

unlimited liability. Only a finite number of persons could

pursue claims that an inadequate sleeping facility , negligently

maintained by their employer, disrupted their circadian

rhythms resulting in coronary artery disease and gastritis.

*6 Bailey's coronary artery disease and gastritis are physical

injuries. His claim is one for negligent infliction of a physical

injury; not an emotional one. The portions of

Gottshall/Carlisle which concern the proper scope of the

availability of a claim for negligent infliction of emotional

distress are inapplicable.

Some courts have relied on the Gottshall/Carlisle dicta to

preclude all FELA work-related-stress claims. "In refusing to

entertain claims which assert nothing more than job related

stress, Gottshall and its progeny draw a distinction between

FELA claims alleging that the railroad assigned 'too much'

work and those alleging that the railroad assigned work that

was ‘too dangerous.'" Walsh 937 F. Supp. at 389.

In Capriotti v. Consolidated Rail Corp., 878 F. Supp. 429

(N.D. N.Y. 1995), the court refused to recognize a claim that

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Bailey v. Norfolk and Western Railway Company

alleged the cumulative effect of the employee's "duties and

responsibilities and the long hours of work created a stressful

environment which caused his injury." Id. at 433. The court

held that kind of claim is identical to Carlisle's: "'that he had

be [sic] given too much--not too dangerous--work to do.'" Id.

citing Gottshall/Carlisle, 114 S. Ct. at 2412. The court noted

that the employee had "not identified any particular condition

existing at Conrail that was dangerous." Capriotti, 878 F.

Supp. at 433. Bailey did not allege or try a claim, based on

stress as the cause of his physical injuries.

The Walsh court observed, in the cases _ after

Gottshall/Carlisle that fell on the "too dangerous” side of the

equation, the employees identified a particular, discrete

condition of their employment that made their jobs "too

dangerous." Walsh, 937 F. Supp. at 389. In Walsh, the

particular and discrete condition that made his job "too

dangerous" was the misdiagnosis and treatment of his

hypertension. Id. Here, the particular and discrete condition

that made Bailey's job "too dangerous" was the inadequately

maintained sleeping facilities.

Bailey's claim is cognizable under FELA. The

Gottshall/Carlisle Court's "zone of danger" test is not a

prohibition because Bailey's claim is not for negligent

infliction of emotional distress, nor is it merely a negligent

failure to provide a stress-free work environment claim. His

claim is for a failure to exercise reasonable care in providing

a reasonably safe place to work and reasonable conditions in

which to work where the railroad had notice of the hazardous

conditions in the dormitory. Lodging accommodations

provided by the railroad for its employees are work

conditions. See Empey v. Grand Trunk Western Railroad

52a

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Bailey v. Norfolk and Western Railway Company

Co., 869 F.2d 293 (6th Cir. 1989); Carney v. Pittsburgh &

Lake Erie Railroad Co., 316 F.2d 277 (3rd Cir. 1963); and

Mostyn v. Delaware, L.& W. R. Co., 160 F.2d 15 (2nd Cir.

1947). The duty to provide reasonably safe conditions is a

traditional and recognized one under FELA. Walsh, 937 F.

Supp. at 390. Bailey presented evidence which supported

findings that N & W breached its duty. He was an on-call

employee who stayed overnight in an in-yard dormitory

owned and inadequately maintained, by N & W.

*7 [W]here [the railroad] has breached... . [a]

traditional and recognized duty, and a nexus exists

between the breach and the resulting injury, a FELA

claim exists so long as [the railroad's] breach played

even a slight role in causing the physical injury. This

remains true even if the stress of general working

conditions acts in concert with [the railroad's] breach

and plays an intervening and contributory role, albeit

a minor one, in producing the injury.

Walsh, 937 F. Supp. at 390. Point denied.

N & W also argues, in a subpoint, Bailey failed to make a

submissible negligence claim under FELA. To establish a

submissible case under FELA, the plaintiff must show that the

railroad had a duty to provide him with a reasonably safe

place to work, that the railroad breached its duty of care, that

this lack of due care played some part, however slight, in

producing the plaintiff's injury and that the injury was

reasonably foreseeable. White v. Union Pacific Railroad

Company, 871 S.W.2d 50, 53 (Mo. App. E.D. 1993).

N & W argues Bailey failed to make a submissibie case that:

(1) his working conditions were unsafe: and, (2) the railroad

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Bailey v. Norfolk and Western Railway Company

could reasonably foresee that its alleged negligence would

result in his coronary artery disease.

Bailey's evidence supported a finding of unsafe conditions in

N & W's sleeping facilities. The dormitory was often too

noisy, too hot or too cold and too bright. These conditions

coupled with an erratic work schedule contributed to Bailey's

severe sleep deprivation which disrupted his circadian

rhythms, ultimately causing his coronary artery disease and

gastritis. N & W had actual knowledge its dormitory was

substandard. Bailey's evidence clearly supported a finding that

his sleeping facilities were unsafe.

The issue of foreseeability is generally a jury question.

Stewart v. Alton and Southern Railway Company, 849

S.W.2d 119, 125 (Mo. App. E.D. 1993). Judicial review is

limited to the reasonableness of the jury finding. Id. It is

knowledge or anticipation of the possibility of harm to

plaintiff, not of the exact nature of the injury, that is

determinative. Id. N & W received several complaints

detailing the poor conditions of the dormitory, it knew of the

erratic hours Bailey worked, and it also knew of the hard

labor required of brakemen. It was reasonably foreseeable that

these working conditions would adversely affect periods of

rest and sleep and could cause Bailey to suffer some kind of

injury. Even one of N & W's experts testified that "shift

work, shift variability and sleep deprivation over long periods

of time endured chronically, may contribute to the formation

of coronary artery disease." The same expert also conceded

that information on the possible health consequences of

inadequate rest has been available to the railroad industry for

a long time. Bailey presented sufficient evidence to support

findings of defect, causation, a reasonably foreseeable result

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Bailey v. Norfolk and Western Railway Company

and physical injury. Subpoint denied.

*8 N & W argues in another subpoint that "PLAINTIFF

FAILED TO MAKE A SUBMISSIBLE CASE UNDER THE

FEDERAL EMPLOYERS' LIABILITY ACT ON

DEFENDANT'S ALLEGED NEGLIGENCE _IN

PURPORTEDLY VIOLATING THE HOURS OF SERVICE

ACT BECAUSE HE IS STILL BOUND BY THE

PARAMETERS OF CARLISLE."

The Hours of Service Act, 49 U.S.C. § 61 et seq. imposes

many duties on railroads concerning limits on how many

consecutive hours a railroad can schedule an employee for

work and the quality of sleeping quarters for employees

voluntarily provided by the railroad. Although there is no

private right of action under the Hours of Service Act, United

Transportation Union v. Lewis, 699 F.2d 1109 (11th Cir.

1983), Bailey claims he is entitled to recover under FELA

because N & W's violation of the Hours of Service Act

amounts to negligence per se.

"It is well-settled that the FELA requires a finding of

negligence per se when there has been a violation of a safety

statute specifically aimed at the railroad industry." Ries v.

National R.R. Passenger Corp., 960 F.2d 1156, 1159 (3rd

Cir. 1992). "The Safety Appliance, Boiler Inspection and

Hours of Service Acts are all phrased in terms of "it shall be

unlawful," which is the usual phrasing of a statute establishing

negligence per se." Id. at 1164.

The court submitted Jury Instruction No. 13 based on Bailey's

theory that N & W violated § 62(a)(3) of the Hours of

Service Act. Section 62(a)(3) provides,

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Bailey v. Norfolk and Western Railway Company

(a) Limitations

It shall be unlawful for any railroad. its officers or

agents, subject to this chapter--

(3) to provide sleeping quarters for employees

(including crew quarters, camp or bunk cars, and

trailers) which do not afford such employees an

opportunity for rest, free from interruptions caused by

noise under the control of the railroad, in clean, safe,

and sanitary quarters; . .

N & W argues "even assuming arguendo that Jamie Bailey

proved a violation of Section 45 U.S.C. 62(a)(3) of the Hours

of Service Act so as to constitute negligence per se under the

FELA .. . his claim is still bound by the limitations of

Carlisle." N & W argues Capriotti controls the issue. The

Capriotti court noted,

[iJn this case, plaintiff does not seek to recover

directly under the [Hours of Service Act], but seeks to

recover under FELA, and thus, despite invoking the

relaxed standards of proof under negligence per se, he

is still bound by the FELA parameters established in

Carlisle; . . . in emotional distress cases the plaintiff

must prove that he was within the zone of danger.

Capriotti, 878 F. Supp. at 434. In our view, for the

reasons previously discussed Gottshall/Carlisle does not

apply. This is not an emotional distress case, nor is it a work-

related-stress case. Subpoint denied.

N & W argues the trial court erred when it instructed the jury

not to consider opinion testimony of a doctor who testified for

N & W and offered an opinion which conflicted with his

deposition testimony. The instruction was the court's remedy

56a

Bailey v. Norfolk and Western Railway Company

for N & W's failure to alert Bailey of the surprise testimony.

It assigns six reasons why this was reversible error. The trial

court held:

*9 Dr. Geltman's deposition testimony earlier taken as

a whole was to the effect . . . he did not believe that

the working conditions were a significant cause of

[Bailey's] heart disease, that he was unwilling to rule

out categorically that it played an insignificant or

insubstantial or minor role in causing [Bailey's] heart

disease.

The essence of his testimony in trial was that he

categorically ruled out that there was even a minor or

insubstantial causal relationship between the working

conditions and the heart disease. . . . This was a

Significant change in his testimony between the

deposition and the trial.

The trial court instructed the jury:

The opinion of Dr. Edward Geltman that plaintiff

Jamie Bailey's work schedule, sleep deprivation and

circadian rhythm disruption, was not even an

insignificant cause of Jamie Bailey's atherosclerotic

heart condition, is stricken from the record and you

shall not consider such evidence in arriving at your

verdicts.

Obviously, the trial court concluded the expert's changed

testimony was an unfair surprise.

N & W first argues the trial court erred because Dr.

Geltman's opinion and testimony at trial had not changed

from his deposition testimony. Dr. Geltman gave two

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Bailey v. Norfolk and Western Railway Company

depositions, one in 1993 and one in 1995. In his first

deposition Dr. Geltman testified that inadequate sleep,

improper diet, overexertion and harassment “are relatively

minor contributors to the development of various forms of

heart disease. Not absolutely unrelated, but relatively minor

contributors." He also testified "I cannot exclude [stress

related factors] 100 percent, but I believe that it is a very

minor contributor."

Near the end of his testimony in his first deposition Geltman

testified:

I believe that these various factors alleged to have

been applied to Mr. Bailey by the railroad certainly

are not major contributors. I did not say they had zero

effect, but I also cannot say to a reasonable degree of

medical certainty they had any effect. I can't say that

they didn't have any effects, but I can't say to a

reasonable degree of medical certainty that they

contributed. (Our emphasis.)

In his second deposition Dr. Geltman testified that the

association between shift work, disturbances in diurnal

variation and circadian rhythm, and atherosclerosis, coronary

artery disease and peptic ulcer disease is "very loose."

I believe there is no consensus in the medical

community that disturbances of circadian rhythm as

occur in shift work are any kind of meaningful risk

factor for coronary artery disease. Especially when

compared to the standard risk factors of lipid

abnormalities, hypercholesterolemia, family history,

hypertension, diabetes, smoking, all the standard risk

factors. Of those, if you factor in all of those, any

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Bailey v. Norfolk and Western Railway Company

effect, if any, of the shift work is trivial or very

minor.

Throughout his second deposition, Dr. Geltman conceded he

could not categorically rule out Bailey's work schedule and

sleep disruption as a cause of his coronary artery disease or

gastritis. At trial Dr. Geltman testified he did not find a causal

relationship between Bailey's work schedule or the conditions

of his dormitory and his heart disease. Bailey's attorney,

during cross-examination, read excerpts of Dr. Geltman's

deposition testimony that "any effect, if any, of the shift work

is trivial or minor." He asked Dr. Geltman, "Was that your

testimony?" Dr. Geltman responded, "Yes, it was." Bailey's

attorney then asked, "But today you're ruling it out

completely?" Dr. Geltman responded, "Yes."

*10 N & W relies on a solitary passage of Dr. Geltman's

deposition testimony to argue Dr. Geltman did rule out

completely Bailey's shift work as a cause of his disease. N &

W relies on Dr. Geltman's testimony that "I'm not sure |

would phrase it the way that nothing ever makes a difference

one whit because that makes me sound insensitive. I believe

that there's not a causative relationship between his shift

schedule and his having had an angioplasty."

This testimony, read in isolation, eliminates the shift schedule

as a cause for Bailey's angioplasty. However, shortly after

giving this opinion, Dr. Geltman, clarified whether he knew

if shift work over a long duration could contribute to the

development of atherosclerosis. He testified, "I don't know

whether or not, even though there was a. statistical

association, whether that was meaningful or not in terms of

causation in Mr. Bailey." Throughout his deposition

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Bailey v. Norfolk and Western Railway Company

testimony Geltman did not completely rule out Bailey's erratic

work schedule and his inadequate sleeping dormitory as a

cause of his coronary artery disease and gastritis.

The record supports a trial court finding Dr. Geltman's

opinion clearly changed between the time he gave his

depositions and when he testified at trial. Dr. Geltman agreed

he had changed his opinion.

The trial court found: (1) Dr. Geltman's opinion had

significantly changed between the depositions and trial; (2)

"there was no supplementation of the deposition"; and (3) "as

a consequence, . . . Rule 56 has been violated." The trial

court has broad discretion in fashioning a remedy for the

failure of a party to properly disclose the opinions of its

experts or the factual basis for reaching their conclusions.

Cremer v. Missouri Pacific Railroad Company, 811 S.W.2d

23, 25 (Mo. App. 1991).

N & W argues Rule 56.01(e)(2) applies to changes in

responses to written interrogatories and not to deposition

testimony. Rule 56.01(e)(2) states:

(e) Supplementation of Responses. A party who has

responded to written interrogatories with a response

that was complete when made is under no duty to

supplement the response to include information

thereafter acquired, except as follows:

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

seasonably if the party obtains information upon the

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

was incorrect when made or (B) though correct when

made is no longer true.

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Bailey v. Norfolk and Western Railway Company

In Gassen v. Woy, M.D., 785 S.W.2d 601 (Mo. App. 1990),

the Western District of this Court held:

The rules make no express provision, in the case of

pre-trial discovery by deposition, for an obligation to

supplement responses under similar circumstances

where a truthful answer when given later ceases to be

correct. Considered as a whole, however, the rules

and the case authority suggest that such duty is

implied as a component of the discovery process.

Id. at 603. The Eastern and Southern Districts of this Court

have never explicitly adopted the Woy, M.D. reasoning. See

Stallings v. Washington University, 794 S.W.2d 264 (Mo.

App. 1990); and Darnaby v. Sundstrom, 875 S.W.2d 195

(Mo. App. S.D. 1994).

*11 The rules relating to discovery were designed to

eliminate, as far as possible, concealment and surprise in the

trial of lawsuits and to provide a party with access to anything

that is "relevant" to the proceedings and subject matter of the

case not protected by privilege. State ex rel. Plank v. Koehr,

831 S.W.2d 926, 927 (Mo. banc 1992).

Rule 56.01(b)(4)(b) provides:

(4)Trial Preparation: Experts. Discovery of facts

known and opinions held by experts, otherwise

discoverable under the provisions of Rule 56.01(b)(1)

and acquired or developed in anticipation of litigation

or for trial, may be obtained only as follows:

(b) A party may discover by deposition the facts and

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Bailey v. Norfolk and Western Railway Company

opinions to which the expert is expected to testify.

Under this rule, Bailey was entitled to discover by

deposition the facts and opinions to which Dr.

Geltman was expected to testify. Bailey's attorney

relied on Dr. Geltman's deposition testimony that he

could not categorically rule out Bailey's injuries were

related to his work conditions. In his opening

statement, Bailey's attorney explained to the jury that

his opening statement is not evidence but "if I tell you

that something's going to be in evidence, it's really

my assurance Or my promise to you that's what I'm

going to prove and I want you to hold me to that...

." Later in the opening statement he spoke of the

evidence saying,

You're going to hear some contrary evidence. . .

[however,] no doctor is going to look at you and say,

"No, I rule out that possibility."

What they're all going to say is okay, . . .even

assuming that Jamie Bailey's work and sleep

arrangement and lodging and fatigue was a factor in

bringing about heart disease and ulcers, it was

minimal, they're going to say it was negligible by

comparison to the primary risk factors... .

When Dr. Geltman changed his opinion at trial and

categorically ruled out Bailey's work conditions as a

cause, even an insignificant cause, he gave surprising

testimony. The surprise, distinguished from the nature

of the revised opinion, created a possibility of

prejudice which the trial court "cured" by a

withdrawal instruction. To allow an expert to change

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Bailey v. Norfolk and Western Railway Company

his opinion after deposition and before trial without

notice to the opposing party would frustrate the

purpose of Rule 56.01(b)(4)(b). Allowing such

changes in opinion after an opening statement relying

on the deposition opinion, without sanction, would

prevent a party from discovering by deposition the

actual facts and opinions to which the expert is

expected to testify. It would also run counter to the

purpose of discovery rules to eliminate, as far as

possible, concealment and surprise in the trial of

lawsuits. State ex rel. Plank, 831 S.W.2d at 927.

We hold the trial court did not abuse its discretion when it

instructed the jury to disregard Dr. Geltman's testimony "that

plaintiff Jamie Bailey's work schedule, sleep deprivation and

circadian rhythm disruption, was not even an insignificant

cause of Jamie Bailey's atherosclerotic heart conditicn,"

because the trial testimony conflicted with plaintiff's opening

statement. By so instructing, the trial court merely maintained

the position of the parties during discovery and at the

beginning of the trial. It also protected the integrity of the

discovery process.

*12 N & W also argues the trial court gave a defective

withdrawal instruction. M.A.I. 34.01 Fourth Edition

provides,

34.01 [1978 Revision] Withdrawal Instructions--General

Comment

A withdrawal instruction is only to be given when

during the course of the trial a false issue, improper

evidence, or evidence of an abandoned issue has been

injected. The purpose of a withdrawal instruction may

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Bailey v. Norfolk and Western Railway Company

be served by the court sustaining a motion to strike

and admonishing the jury to disregard the evidence.

However, in certain instances, the trial court may

determine that such action is inadequate, inappropriate

or untimely and that a written instruction is necessary.

Evidence, rather than an entire issue, may also

properly be withdrawn by instruction. In the event

evidence, rather than an issue, is sought to be

withdrawn from the jury's consideration, care must be

taken that such evidence does not also concern an

issue still before the jury.

N & W argues: (1) the trial court's striking of, and instructing

to ignore, portions of Dr. Geltman's testimony was a

"withdrawal instruction" governed by M.A.I. 34.01; (2) the

"withdrawn" evidence concerned "an issue still before the

jury", i.e. causation; and (3) the giving of the instruction

constituted prejudicial error.

The trial court was not giving an M.A.I. 34.01 "Withdrawal

Instruction." None of the stated purposes for such instruction

were involved. It was merely striking testimony as a sanction

for N & W's failure to comply with discovery rules. The use

of a withdrawal instruction under M.A.I. 34.01 is to avoid

misleading the jury on a specious issue. Bradley v. Browning-

Ferris Industries, Inc., 779 S.W.2d 760, 765 (Mo. App.

1989). The purpose of the direction in this case was to protect

the integrity of the discovery process, not to avoid misleading

the jury on a false or abandoned issue or legally improper

evidence. N & W's argument has no merit.

N & W also argues "the trial court's Instruction was so poorly

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Bailey v. Norfolk and Western Railway Company

worded as to be confusing and misleading, and its prejudicial

effect is demonstrated by the court's own comments regarding

it." N & W calls attention to the trial court's comment, "It

seems to me to be an importani issue. It seems to me as an

issue the case can turn on. If the jury believed your witness

today, his testimony here today, the plaintiff loses." The trial

court was not commenting on the instruction, it was

commenting on the potential prejudicial effect of Dr.

Geltman's surprise testimony. The instruction's wording was

clear and targeted to the surprise testimony. In his deposition

Dr. Geltman could not rule out sleep deprivation as possibly

being an insignificant cause of Bailey's injuries. The

instruction was a trial court remedy intended to restore the

status quo ante. It was not misleading or confusing.

N & W also argues the striking of testimony was unwarranted

in light of the facts reflected in the record. It argues, "[Bailey]

wanted (and persuaded the Court to give him) the best of two

worlds: to attempt to discredit [N & W's] key witness by

confrontation and cross-examination, and then to sandbag the

defense by having the Court strike Dr. Geltman's testimony

and thereby destroy [N & W's] case."

*13 During his direct testimony, Dr. Geltman eliminated

Bailey's shift work, circadian disruption and sleep deprivation

as a cause of his coronary artery disease. Bailey, during

cross-examination, obtained a concession that Dr. Geltman's

direct testimony represented a change in his opinion given at

deposition. The cross-examination confirmed Dr. Geltman

intended to render a new opinion when he testified on direct,

"there's no credible evidence to show that the conditions at

the dormitory or [Bailey's] work schedule in any way

contributed to his development of coronary artery disease."

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Bailey v. Norfolk and Western Railway Company

(Our emphasis.) If Bailey received a dual benefit, it was

deemed necessary by a failure to inform him before trial that

Dr. Geltman was going to testify there was no causation. The

trial court acted well within its discretion when it withdrew

Geltman's surprise opinion testimony.

In its final point, N & W argues the trial court erred in

refusing to give its contributory negligence instruction C. The

trial court gave N & W's tendered Jury Instruction No. 10,

which substantially duplicated Instruction C except it omitted

the clause "or plaintiff failed to disclose to defendant that he

had heart or gastrointestinal problems... ."

N & W argues it had adduced ample evidence of the fact that

Bailey failed to inform N & W of his heart and gastritis

problems. N & W offered, and the court refused, the

following instruction:

You must find plaintiff contributorily negligent if you

believe:

First, plaintiff failed to follow a low fat diet; or

plaintiff failed to disclose to defendant that he had

heart or gastrointestinal problems, and

Second, plaintiff in any one or more of the respects

submitted in Paragraph First, was thereby negligent,

and

Third, such negligence of plaintiff directly contributed

to cause his injury.

(Our emphasis.)

Trial courts are obligated to submit a contributory negligence

instruction if there is slight proof of contributory negligence.

Mateer v. Union Pacific Systems, 873 S.W.2d 239, 243 (Mo.

App. E.D. 1993). In Conley v. Burlington Northern Railroad

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Bailey v. Norfolk and Western Railway Company

Company, 765 S.W.2d 272 (Mo. App. 1988), we held the

trial court had not erred in submitting a contributory

negligence instruction where plaintiff failed to report pain

resulting from continuing to work on a sprained ankle. Id. at

275. We observed,

A layman is held to know what the experiences of

daily life teach and that which is commonly

understood and believed. The jury could believe that

plaintiff knew or should have known that he was

risking some damage to his sprained ankle by

continuing to work upon the painful ankle, and that his

failure to report the pain was negligence on his part--

even though, as was no doubt the case, he did not

realize the extent of the disability which might result,

or. . . he "did not know and appreciate the gravity of

the consequences. "

Id. at 274. In Mateer, plaintiff brought suit under FELA for

back injuries allegedly caused by repetitive traumas arising

from the daily duties of his railroad work. We held the trial

court properly rejected a contributory negligence instruction

because it was not supported by the evidence. Mateer, 873

S.W.2d at 244. We noted all the medical authorities who had

examined Mateer prior to 1987, attempted to find causation

on the basis of conditions unrelated to his work. Id. "Mateer,

as a layman, cannot be held to possess knowledge that

performance of his duties as a lube person were causing a

back problem where none of the medical authorities reached

that diagnosis prior to 1987." Id. The duty to report and desist

depends on employee knowledge of work related causation of

injury. There was no evidence to support the finding Bailey

knew or should have known N & W's sleeping facilities and

his erratic work schedule were medical causes of his coronary

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Bailey v. Norfolk and Western Railway Company

artery disease and gastritis.

*14 Furthermore, no evidence was presented to support a

finding that Bailey's failure to disclose to N & W his coronary

artery disease and gastritis directly contributed to exacerbate

his medical condition. N & W defended on the basis the

dormitory and work conditions did not cause disruption of

sleep and circadian rhythms and did not contribute to Bailey's

physical injuries. Even had Bailey known and informed N &

W that his working conditions caused his heart and stomach

diseases, N & W would not have made any changes in the

dormitory which it knew was substandard. It has consistently

refused to accept the conditions as a cause of Bailey's injuries.

Point denied.

We affirm.

Mary Rhodes Russell, P.J. and Paul J. Simon, J., concur.

FN1 Some of these cases interpret the Gottshall/Carlisle

dicta as addressing duties imposed by FELA suggesting that

FELA does not impose a duty on employers to maintain a

stress-free work environment, even if the stress causes

purely physical injuries. Other cases interpret the dicta as

addressing the nature of injuries resulting from work-

related-stress. These cases suggest that work-related-stress

claims necessarily involve emotional injuries. The injuries

are emotional, even if they involve physical manifestations,

because they are caused by stress.

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