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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1999
- **Citation:** 527 U.S. 1036

## Text

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

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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

P
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

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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

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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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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.

60a

ii a

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 designe

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1580%3A1. Public record. Not legal advice.