Appendix — Illinois Central Central Railroad Railroad Co. Co. v. Copple (No. 08-271)
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APPENDIX A
DECISION OF THE APPELLATE COURT OF
ILLINOIS, FIFTH DISTRICT
FILED JANUARY 22, 2008
[Filed Jan 22, 2000 Louis E. Costa,
Clerk Appellate Court, 5" Dist]
NO. 5-06-0618
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
XON BLACKBURN et al., Appeal from the
Circuit Court of
Plaintiffs, Marion County.
and
DELBERT COPPLE, CARL
HEINRICHSMEYER, and
DONALD HYATT,
Plaintiffs-Appellees,
Vv No. 04-L-25
ILLINOIS CENTRAL Honorable
RAILROAD COMPANY, Patrick J. Hitpas,
Judge, presiding.
. Defendant-Appellant
2a
JUSTICE SPOMER delivered the opinion of the
court.
The defendant, [Illinois Central Railroad
Company (the Railroad), appeals from the order of
the circuit court of Marion County that entered a
judgment on jury verdicts in favor of plaintiffs
Delbert Copple, Carl Heinrichsmeyer, and Donald
Hyatt (the plaintiffs). For the reasons set forth
below, we affirm the judgment of the circuit court.
FACTS
The plaintiffs are among a group of 24 plaintiffs
who sued the Railroad for claims arising under the
Federal Employers’ Liability Act (FELA) (45 U.S.C.
§51 et seq. (2000)), whereby they alleged they were
injured when they were exposed to asbestos, diesel
exhaust, and other dangerous products during the
course of their employment. The plaintiffs claimed,
inter alia, that the Railroad negligently failed to
provide them with a reasonably safe place to work.
The Railroad filed a motion to sever the cases for
trial, and the circuit court granted the motion in part
by consolidating the plaintiffs’ cases into groups of
four for trial. The plaintiffs’ cases were the second
group to be tried together before a jury. The other
plaintiff in their group did not participate in the trial
for reasons unrelated to this appeal. The verdicts in
the first group’s trial were previously affirmed on
appeal. Xon Blackburn v. Illinois Central R.R. Co.,
No. 5-06-0417 (2007) (unpublished order under
Supreme Court Rule 23 (166 Il. 2d R. 23)).
Delbert Copple was 79 years old at.the time of the
trial. Mr. Copple worked for the Railroad
continuously from 1950 to 1986 as a stockman and
laborer in various facilities in and around Centralia.
3a
He testified that in his work, he was exposed to
asbestos-containing products, including asbestos
sleeves, gaskets, brake shoes, and firebrick. Carl
Heinrichsmeyer was 62 years old at the time of the
trial. Mr. Heinrichsmeyer worked for the Railroad
from 1963 until 1982, also in and around Centralia.
He worked at various times as a_ stockman,
chauffeur, and store clerk, and he testified that he
also handled asbestos sleeves and gaskets. Donald
Hyatt was 70 years old at the time of the trial. Mr.
Hyatt worked for the Railroad from 1969 to 1999,
beginning at the facility in Champaign. From 1970
until 1984, Mr. Hyatt was responsible for
maintaining water and steam lines at various
facilities from Champaign to Effingham. During his
employment, Mr. Hyatt was exposed to asbestos
piping and boiler insulation.
In 2003, the plaintiffs attended a screening set up
by the attorneys working for their union. After the
screening, Dr. Alvin Schonfeld diagnosed the
plaintiffs with asbestosis, which is defined as the
scarring of the lungs created by asbestos fibers. At
the trial, Dr. Schonfeld testified that the plaintiffs’
asbestos exposure during their employment with the
Railroad caused, in whole or in part, their injuries.
After a lengthy trial at which each side presented
numerous lay and expert witnesses, the jury
returned verdicts in favor of the plaintiffs, awarding
$220,000 in damages to Mr. Copple, $167,000 to Mr.
Heinrichsmeyer, and $220,000 to Mr. Hyatt. The
circuit court denied the Railroad’s motions for a
directed verdict, made at the close of the plaintiffs’
evidence and again at the end of the trial. The
circuit court denied the Railroad’s posttrial motions
and entered a finding pursuant to Illinois Supreme
4a
Court Rule 304(a) (210 Ill. 2d R. 304(a)). The
Railroad filed a timely notice of appeal. We will set
forth additional facts from the record as needed to
explain our resolution of each issue on appeal.
ANALYSIS
1. Instructing the Jury on the Fear of Cancer
The Railroad argues that the circuit erred in
instructing the jury on the fear of cancer. The
Railroad’s argument on this issue is twofold. First,
the Railroad argues that the circuit court erred in
refusing to instruct the jury that in order to award
damages for the fear of cancer, the jury must find
that the fear must significantly and detrimentally
affect the ability to carry on everyday life and work.
Second, the Railroad argues that there was
insufficient evidence presented to warrant a jury
instruction on the fear of cancer as an element of
damage for each plaintiff. We will address each
argument in turn.
The United States Supreme Court has held that
an asbestosis claimant, upon demonstrating a
reasonable fear of cancer stemming from the
claimant’s existing disease, can recover for that fear
as a part of asbestosis-related pain-and-suffering
damages in a suit brought under FELA. Norfolk &
Western Ry. Co. v. Ayers, 538 U.S. 135, 157, 155 L.
Ed. 2d 261, 281, 123 S. Ct. 1210, 1223 (2003).
However, it is incumbent upon the claimant to prove
that his alleged fear is genuine and serious. Ayers,
538 U.S. at 157, 155 L. Ed. 2d at 281, 123 S. Ct. at
1223. In this case, the circuit court instructed the
jury separately regarding each plaintiff as follows:
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“If you decide for the plaintiff *** on the
question of liability, you must then fix the
amount of money which will reasonably and fairly
compensate him for any of the following elements
of damages proved by the evidence to have
resulted, in whole or in part, from the negligence
of the defendant, taking into consideration the
nature, extent[,] and duration of the injury.
aK OOK
The genuine and serious fear of cancer
experienced and reasonably certain to be
experienced in the future.”
The circuit court refused the Railroad’s proposed
instruction, which stated: “In order to recover for
fear of cancer, a plaintiff must demonstrate that his
fear is genuine and serious. This means fear that
significantly and detrimentally affects the ability to
carry on everyday life and work.” This proposed
instruction was modeled after Justice Breyer’s
partial dissent in Ayers, in which he stated that he
would “permit recovery where the fear of cancer is
unusually severe—where it significantly and
detrimentally affects the plaintiffs ability to carry on
with everyday life and work.” 538 U.S. at 187, 155 L.
Ed. 2d at 300, 123 S. Ct. at 1239 (Breyer, J.,
concurring in part and dissenting in part). The
Railroad argues that Justice Breyer is proposing a
definition of “genuine and serious.” However, he is in
fact, proposing a more stringent standard than that
handed down by the majority in Ayers. Accordingly,
the circuit court did not err when it rejected the
Railroad’s tendered instruction and instructed the
jury in accordance with the majority opinion in
Ayers.
6a
We now turn to the issue of whether the circuit
court erred in determining that there was sufficient
evidence to support a jury instruction on the fear of
cancer regarding each plaintiff. Our review of the
record reveals that Dr. Douglas Pohl testified that
asbestos is carcinogenic and that a person who has
been exposed to asbestos is at an increased risk of
cancer. Dr. Schonfeld also testified that asbestosis
sometimes causes cancer. Mr. Copple testified that
he is concerned, even worried, about the prospect of
developing cancer. Mr. Heinrichsmeyer testified that
he is concerned about taking care of his family in the
event that he contracts the disease. Mr. Hyatt
testified that cancer is on his mind all the time and
that he had pneumonia in January and thought he
might have been contracting cancer at that time. We
find this evidence sufficient to support the circuit
court’s decision to instruct the jury that it could
award each plaintiff damages for the fear of cancer
should it find that fear to be genuine and serious.
2. Denial of the Motion for a New Trial on the Issue
of Damages or a Remittitur
a. Standard of Review
The Railroad also argues that the circuit court
erred in denying its motion for a new trial on the
entire damages award and in denying its alternative
motion for a remittitur on the future-medical-
expense and pain-and-suffering awards. When we
review a circuit court’s ruling on a motion for a new
trial on the issue of compensatory damages, the
standard of review is whether the verdict is against
the manifest weight of the evidence. Hollowell uv.
Wilder Corp. of Delaware, 318 Ill. App. 3d 984, 990
7a
(2001) (citing Maple v. Gustafson, 151 Ill. 2d 445, 454
(1992)). “A verdict is against the manifest weight
when it is arbitrary, unreasonable, or not based upon
any evidence.” MHollowell, 318 Ill. App. 3d at 990
(citing Maple, 151 Ill. 2d at 454). The standard of
review for the circuit court’s ruling on a motion for a
remittitur is whether the circuit court abused its
discretion. Hollowell, 318 Ill. App. 3d at 991.
In addition to the standard of review, it is
important to note several principles that are
applicable when reviewing a damages award. “The
determination of damages is a question reserved to
the trier of fact, and a reviewing court will not lightly
substitute its opinion for the judgment rendered in
the trial court.” Richardson v. Chapman, 175 Ill. 2d
98, 113 (1997). “An award of damages will be
deemed excessive if it falls outside the range of fair
and reasonable compensation or results from passion
or prejudice, or if it is so large that it shocks the
judicial conscience.” Richardson, 175 Ill. 2d at 113.
“When reviewing an award of compensatory damages
for a nonfatal injury, a court may consider, among
other things, the permanency of the plaintiffs
condition, the possibility of future deterioration, the
extent of the plaintiffs medical expenses, and the
restrictions imposed on the plaintiff by the injuries.”
Richardson, 175 Ill. 2d at 113-14.
b. The Identical Awards
Before turning to our analysis of the specific
items of damages awarded to each of the plaintiffs,
we recognize that in several places in the Railroad’s
brief, the Railroad points to the fact that the jury
made identical awards to the plaintiffs for the fear of
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cancer, disability, and pain and suffering and
identical awards to Mr. Copple and Mr. Hyatt for
future medical expenses. The Railroad directs this
court’s attention to that fact in support of its
arguments that the trials should have been severed;
that the jury should have been instructed on a
definition of “genuine and serious” in relation to the
fear of cancer; and that without evidence of life
expectancy the jury should not have been instructed
to consider, in assessing the awards for future
medical expenses, how long the plaintiffs are likely
to live. Although we have analyzed these specific
issues in other parts of this opinion and found no
error, we find it provident to consider whether the
identical awards, in and of themselves, would
necessitate a new trial on damages.
We find no authority in Illinois, and the Railroad
points to none, that stands for the proposition that
identical awards, in and of themselves, are reversible
error. In light of this, we have examined how this
issue has been handled by other jurisdictions. In so
doing, we were persuaded by the reasoning of the
Kansas Supreme Court, which stated as follows:
“The ‘[“‘Jonly standard for
evaluation is such amount as
reasonable persons estimate to be
fair compensation for the injuries
suffered.("’ (Emphasis added.)
Morris v. Francisco, 238 Kan. [71,]
77-78[, 708 P.2d 498, 503-04 (1985)]
(quoting Ratterree v. Bartlett, 238
Kan. [11,] 23[, 707 P.2d 1063, 1072
(1985)}). There is no per se rule
which discredits identical awards,
and there is no provision in current
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law for comparison of one plaintiffs
recovery with another’s to serve as
the basis for overturning a jury’s
verdict.” Kuhl v. Atchison, Topeka &
Santa Fe Ry. Co., 250 Kan. 332, 344,
827 P.2d 1, 9 (1992).
The Kansas Supreme Court went on to explain
that if reasonable persons could estimate the
damages of each individual plaintiff to be a fair
compensation for the injuries suffered, without
comparing them to each other, then the identical
awards should be upheld. Kuhl, 250 Kan. at 344,
827 P.2d at 9. Similar conclusions have been
reached by the Maine Supreme Court, as well as the
United States Court of Appeals for the Ninth Circuit.
See Harris v. Soley, 2000 ME 150, 127, 756 A.2d 499,
508 (2000); Lambert v. Ackerley, 180 F.3d 997, 1011
(9th Cir. 1999). We find this analysis persuasive for
our purposes here, especially in light of the fact that
all three plaintiffs were similarly diagnosed with
asbestosis and had similar physical manifestations of
this disease, presenting with symptoms of shortness
of breath and some limitations on their levels of
exertion. Although Mr. Copple was 79 years old at
the time of the trial, while Mr. Heinrichsmeyer was
62 and Mr. Hyatt was 70, a reasonable jury could
conclude that because longevity is uncertain, similar
awards for future damages were justified based on
the similarity of their asbestosis-related conditions.
Accordingly, we decline to substitute our judgment
for that of the jury solely on the basis of identical
awards.
c. Future Medical Expenses
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We begin our analysis of the particular verdicts at
issue with the award for future medical expenses.
The jury awarded Mr. Copple and Mr. Hyatt each
$100,000, and it awarded Mr. Heinrichsmeyer
$47,000 for future medical expenses. We cannot say
that these awards are against the manifest weight of
the evidence or that the circuit court abused its
discretion in denying the motion for a remittitur with
regard to future medical expenses. Dr. Schonfeld
testified that because the plaintiffs were diagnosed
with asbestosis, they would need periodic X rays,
medical exams, and _ colonoscopies. Similarly,
Dr. Pohl testified that an asbestosis patient must
have routine pulmonary testing throughout his life.
Mr. Copple testified that he plans to monitor his
condition with his family doctor. Mr.
Heinrichsmeyer testified that he also plans to
monitor his health. Mr. Hyatt testified, without
objection, that his doctor told him he would need a
chest X ray every year.
The Railroad argues that these verdicts should be
reversed because the plaintiffs did not produce
evidence of any specific medical expenses that they
would incur in the future other than “generic
references” to periodic visits to a physician for a
chest X-ray. However, “the trier of fact enjoys a
certain degree of leeway in awarding compensation
for medical costs that, as shown by the evidence, are
likely to arise in the future but are not specifically
itemized in the testimony.” Richardson, 175 Ill. 2d at
112. The Railroad also points to the plaintiffs’
counsel’s statement during closing argument that a
“fair figure” for future medical expenses would be
$5,000. However, “[a] jury’s award of a verdict
higher than that requested by counsel does not, by
lla
itself, indicate that the jury acted out of passion or
prejudice.” Tri-G, Inc. v. Burke, Bosselman &
Weaver, 222 Ill. 2d 218, 250-51 (2006) (quoting Fedt
v. Oak Lawn Lodge, Inc., 132 Ill. App 3d 1061, 1072
(1985)).
We find that the amounts awarded fall within a
range of fair and reasonable compensation for
periodic X-rays, exams, and other diagnostic testing
that the evidence shows the plaintiffs will face due to
the asbestosis diagnosis. In addition, these amounts
are not so large that we can say that they are based
on juror passion or prejudice or that they shock the
judicial conscience. Accordingly, we will not
substitute our judgment for that of the jury. The
circuit court did not err in allowing the jury’s verdict
with regard to future medical expenses to stand.
d. Pain and Suffering, Disability, and Fear of
Cancer
We now turn to the jury’s award to the plaintiffs
for pain and suffering and disability and fear of
cancer. The jury awarded each of the plaintiffs
$15,000 for pain and suffering, $75,000 for disability,
and $30,000 for fear of cancer. Dr. Alvin Schonfeld
testified that the plaintiffs suffered from asbestosis,
a permanent condition, which was caused, in whole
or in part, by their employment with the Railroad.
Dr. Schonfeld testified that the plaintiffs’ complaints
of shortness of breath were consistent with his
findings of asbestosis and that the plaintiffs were at
an increased risk of developing cancer as a result of
their exposure to asbestos. Dr. Donald Breyer
testified that the plaintiffs’ chest X rays contained
varying degrees of abnormalities consistent with
a
12a
asbestosis. Mr. Copple testified that he gets winded
when he works out at the gym and when walking up
stairs. Mr. Heinrichsmeyer testified that just about
every activity makes him short of breath. He
testified that he is not able to work the same hours
he used to work at his tavern, due to shortness of
breath. Although he plays golf, he must use a golf
cart. Mr. Hyatt testified that he would have to stop
halfway up the stairs due to shortness of breath.
Dr. Pohl testified that the plaintiffs’ complaints were
consistent with his diagnosis of asbestosis. The
plaintiffs testified that they experience shortness of
breath to varying degrees, and they gave some
indication on how this impacts their lives.
In addition to the testimony of the plaintiffs,
expert testimony was presented that asbestosis has
the very real potential to worsen in the future. In
addition, expert testimony was presented regarding
the increased risk of cancer, and the plaintiffs
testified regarding the concern and worry this caused
them. As explained elsewhere in this opinion, the
jury was correctly instructed on these elements of
damages, and it was within its discretion to assess a
monetary value for these noneconomic items of
damage. Because we cannot say that the amounts
awarded fall outside the range of fair and reasonable
compensation or result from passion or prejudice or
that the amounts awarded are so large that they
shock the judicial conscience, we will not disturb the
award. Accordingly, the circuit court did not err
when it denied the Railroad’s motion for a new trial
on damages or a remittitur.
(The following material is nonpublishable
under Supreme Court Rule 23.]
13a
3. Instructing the Jury on Negligence and Damages
a. Standard of Review
The Railroad argues that the circuit court erred
by instructing the jury on the issues of negligence
and damages. “A litigant has the right to have the
jury clearly and fairly instructed upon each theory
which was supported by the evidence.” Leonardi v.
Loyola University of Chicago, 168 [l. 2d 83, 100
(1995) (citing Ervin v. Sears, Roebuck & Co., 65 Il.
2d 140, 145 (1976)). “However, it is error to give an
instruction not based on the evidence.” Leonardi,
168 Il]. 2d at 100. “The question of what issues have
been raised by the evidence is within the discretion
of the trial court.” Leonardi, 168 Ill. 2d at 100. “The
evidence may be slight; a reviewing court may not
reweigh it or determine if it should lead to a
particular conclusion.” Leonardi, 168 Ill. 2d at 100.
“The test in determining the propriety of tendered
instructions is whether the jury was fairly, fully, and
comprehensively informed as to the _ relevant
principles, considering the instructions in their
entirety.” Leonardi, 168 Ill. 2d at 100.
b. Instructions on Negligence
We note that heading “L” in the Railroad’s brief
includes a statement that the circuit court abused its
discretion in instructing the jury regarding the
Railroad’s negligence. However, the Railroad’s brief
is devoid of any argument regarding any error the
circuit court might have made in instructing the jury
on negligence. Pursuant to Illinois Supreme Court
l4a
Rule 341(h)(7) (210 Ml. 2d R. 341(h)(7)), points not
argued in the appellant's brief are waived.
Moreover, even if the Railroad had not waived the
issue of the jury instructions on negligence, there is
ample evidence in the record upon which the circuit
court could base those instructions, as we have
explained below with regard to the circuit court’s
denial of the Railroad’s motion for a judgment
notwithstanding the verdict on the issue of
negligence. Accordingly, the circuit court did not err
in instructing the jury with regard to negligence.
c. Instructions on Future Medical Expenses
With regard to damages, the Railroad argues that
the circuit court abused its discretion when it
instructed the jury it could award the plaintiffs
damages for future medical expenses. As previously
noted with regard to the motion for a new trial on
damages, our review of the record reveals that there
was enough evidence for the circuit court to so
instruct the jury. Dr. Schonfeld testified that
because the plaintiffs were diagnosed with
asbestosis, they would need periodic X rays, medical
exams, and _ colonoscopies. Similarly, Dr. Pohl
testified that an asbestosis patient must have
routine pulmonary testing throughout his life.
Copple testified that he plans to monitor his
condition with his family doctor. Heinrichsmeyer
testified that he also plans to monitor his health.
Hyatt testified, without objection, that his doctor told
him he would need a chest X ray every year. From
this testimony, we conclude that there was “some
evidence” to warrant a _ future-medical-expense
instruction. See Mikus v. Norfolk & Western Ry. Co.,
15a
312 Ill. App. 3d 11, 33 (2000) (holding that expert
testimony that future medical treatment is required
is sufficient to warrant a future-medical-expense
instruction). Accordingly, the circuit court did not
err when it instructed the jury that it could award
future medical expenses to the plaintiffs.
d. Instructions on Present Cash Value
In a related argument, the Railroad argues that
the circuit court erred when it instructed the jury
that it must reduce any future-medical-expense
award to present cash value but failed to instruct the
jury on the requisite methods to calculate present
cash value. The circuit court instructed the jury on
present cash value as follows.
“In computing the damages arising
in the future because of future medical
expenses([,] you must determine their
present cash value. ‘Present cash value’
means the sum of money needed now,
which, when added to what that sum
may reasonably be expected to earn in
the future, will equal the amount of the
expenses at the time in the future when
the expenses must be paid.
Damages for pain and suffering
and disability are not reduced to
present cash value.”
This instruction was taken verbatim from Illinois
Pattern Jury Instructions, Civil, No. 34.02 (2006)
(hereinafter IPI Civil (2006)). There is no
requirement that actuarial or statistical evidence be
present to guide the jury in its determination of
16a
present cash value when this instruction is given.
See Robinson v. Greeley & Hansen, 114 Ill. App. 3d
720, 725 (1983); Crabtree v. St. Louis-San Francisco
Ry. Co., 89 Tl. App. 3d 35, 39 (1980). The Railroad
does not contest the definition of “present cash value”
contained in the instruction, does not claim the jury
improperly computed present cash value, and did not
submit another formula that it believed better
explained the method of arriving at present cash
value. See Robinson, 114 Ill. App. 3d at 725. We
recognize, as did the courts in Robinson and
Crabtree, that actuarial evidence is often helpful to
juries in reducing damages to monetary figures.
Robinson, 114 Ill. App. 3d at 725; Crabtree, 89 IIl.
App. 3d at 39. However, that evidence could have
been presented by the Railroad had it felt that it was
necessary. See Robinson, 114 Ill. App. 3d at 725;
Crabtree, 89 Ill. App. 3d at 39. Accordingly, the
circuit court did not err in instructing the jury on
present cash value.
e. Instructions on Pain and Suffering and Disability
The Railroad also argues that the circuit court
erred in instructing the jury on pain and suffering
and disability. However, as set forth above, we find
ample evidence to support the jury’s verdicts for the
plaintiffs for both of these elements of damage.
Accordingly, we find no error in the circuit court’s
instructions in these areas.
f. Instructions Regarding the Plaintiffs Longevity
17a
With regard to the instructions on future
damages, the Railroad also takes issue with the
circuit court instructing the jury in accordance with
IPI Civil (2006) No. 34.01. That instruction provided
as follows:
“If you find that a plaintiff is entitled
to damages arising in the future
because of injuries, you must determine
the amount of these damages which will
arise in the future.
If these damages are of a continuing
nature, you may consider how long they
will continue. If these damages are
permanent in nature, then in computing
these damages you may consider how
long the plaintiff is likely to live.”
The Railroad contends it was error to give this
instruction without mortality tables in evidence to
instruct the jury on how long the plaintiffs are likely
to live. However, the Railroad points to no authority,
and our research reveals none, that requires those
tables to be admitted into evidence prior to
instructing the jury that it may consider how long
the plaintiff is likely to live in assessing future
damages. In fact, IPI Civil (2006) No. 34.04 instructs
the jury on the use of mortality tables if and when
they are entered into evidence. That instruction
states that the jury is only to use mortality tables “in
connection with other evidence relating to the
probable life expectancy of the plaintiff in this case,
including evidence of his occupation, health, habits,
and other activities, bearing in mind that some
persons live longer and some persons less than the
average.” IPI Civil (2006) No. 34.04. As is the case
with the actuarial data, the Railroad was free to offer
18a
mortality tables into evidence. The circuit court did
not err in giving IPI Civil (2006) No. 34.01.
4. Denial of the Motion for a Judgment
Notwithstanding the Verdict
a. Standard of Review
The Railroad argues that the trial court erred in
denying its motion for a judgment notwithstanding
the verdict (n.o.v.) because the plaintiffs failed to
present any evidence that the Railroad acted
negligently toward them or that they were injured as
a result of any negligent conduct. The Railroad
further argues that the plaintiffs failed to offer any
evidence of pain, suffering, or loss of a normal life
expectancy. To analyze these issues on appeal, we
begin with the standard the circuit court must
employ in ruling on a motion for a judgment n.o.v.,
as well as our standard of review. “[A] judgment
n.o.v. is properly entered in those limited cases
where ‘all of the evidence, when viewed in its aspect
most favorable to the opponent, so overwhelmingly
favors movant that no contrary verdict based on that
evidence could ever stand.’” Maple v. Gustafson, 151
Ill. 2d 445, 453 (1992) (quoting Pedrick v. Peoria &
Eastern R.R. Co., 37 ll. 2d 494, 510 (1967). “Put
another way, ‘a motion for judgment
(notwithstanding the verdict] presents “a question of
law as to whether, when all of the evidence is
considered, together with all reasonable inferences
from it in its aspect most favorable to the plaintiffs,
there is a total failure or lack of evidence to prove
any necessary element of the [plaintiffs] case”’”
Blount v. Stroud, Nos. 1-06-2428, 1-06-2968, slip op.
at 9 (September 28, 2007) (quoting York v. Rush-
19a
Presbyterian-St. Luke’s Medical Center, 222 Ill. 2d
147, 178 (2006) (quoting Merlo v. Public Service Co.
of Northern Illinois, 381 Ill. 300, 311 (1942))).
Appellate courts employ a de novo standard of review
when reviewing decisions on motions for a judgment
n.o.u. McClure v. Owens Corning Fiberglas Corp.,
188 Ill. 2d 102, 132 (1999).
b. Liability
With regard to the Railroad’s argument that the
circuit court erred in denying its motion for a
judgment n.o.v. because the plaintiffs failed to
present evidence on the issue of liability, FELA
provides as follows:
“Sec 1 of [FELA] makes the carrier
liable in damages for any injury or
death ‘resulting in whole or in part from
the negligence’ of any of its ‘officers,
agents, or employees.’ *** At common
law the duty of the employer to use
reasonable care in_ furnishing his
employees with a safe place to work was
plain. ([Citation.] That rule is deeply
engrained in federal jurisprudence.
[Citations] *** [I]t is a duty which
becomes ‘more imperative’ as the risk
increases. *** It is that rule which
obtains under [FELA].” Bailey ov.
Central Vermont Ry., 319 U.S. 350, 352-
53, 87 L. Ed. 1444, 1447, 63 S. Ct. 1062,
1063-64 (1943).
The most basic question for the court in every
FELA case is “whether the proofs justify with reason
20a
the conclusion that employer negligence played any
part, even the slightest, in producing the injury or
death for which damages are sought.” Rogers uv.
Missouri Pacific R.R. Co., 352 U.S. 500, 506, 1 L. Ed.
2d 493, 499, 77 S. Ct. 443, 448 (1957). The quantum
of evidence necessary to support a jury verdict of
liability in a FELA case is “much less than in an
ordinary negligence case.” Lewis v. Cotton Belt
Route-St. Louis Southwestern Ry. Co., 217 Ill. App.
3d 94, 112 (1991). That causes other than employer
negligence have played a role in the plaintiffs injury
does not preclude a finding of negligence against the
employer. Rogers, 352 U.S. at 506, 1 L. Ed. 2d at
499, 77 S. Ct. at 448.
Our review of the record on appeal leaves no
doubt that the plaintiffs submitted evidence from
which the jury could determine that the Railroad
knew or should have known that the plaintiffs were
exposed to harmful levels of asbestos during their
employment and that they were injured as a result of
this exposure. Without objection, the plaintiffs
introduced exhibits that indicated that the Railroad
was aware of the risks of asbestos exposure as early
as the mid-1930s, that asbestos was dangerous
whether workers handled it themselves or were only
near others using it, and that certain safety
precautions could lessen those risks. Lyndle Burton,
the Railroad’s manager of industrial hygiene,
acknowledged that, from an industrial hygiene
perspective, a failure to implement the safety
precautions recommended in the exhibits was
unreasonable based on the knowledge reflected in
the exhibits that asbestos is dangerous.
Charles Garrett, the Railroad’s senior risk
mitigation officer, testified that he investigates
2la
claims against the Railroad for lung injuries from
substances such as asbestos. He testified that the
Railroad’s discovery responses included statements
that it did not issue any written warnings to its
employees about the hazards of asbestos exposure,
and the Railroad did not deny that asbestos was used
in the workplaces where the plaintiffs were
employed. The plaintiffs testified at length and in
detail regarding how they were exposed to asbestos
materials and they were present when asbestos dust
was in the air in the various facilities where they
worked. The plaintiffs also testified that the
Railroad did not provide them with respirators to
filter out the dust, did not tell them that exposure to
asbestos dust might be dangerous, and did not advise
them to take any safety precautions, such as wetting
down the dust, when working with or around
asbestos.
The plaintiffs’ expert witness, Dr. Michael
Ellenbecker, a curtified industrial hygienist, testified
that the medical and surgical section of the
Association of American Railroads, of which the
Railroad was a member, recognized as early as 1937
that asbestos used in the Railroad’s workplaces
posed a hazard. He stated that the railroad industry
recognized the concept of bystander exposure to
asbestos as early as 1940 and that the plaintiffs were
exposed to very high and unsafe levels of asbestos
during their employment with the Railroad, even
though methods to reduce exposure to asbestos were
available. He concluded that the Railroad did not
provide the plaintiffs with a reasonably safe place to
work. There is no doubt from our review of the
record that the plaintiffs produced sufficient
22a
evidence of FELA liability to withstand a motion for
a judgment n.o.v.
c. Damages
In addition, we cannot say that the plaintiffs
failed to produce sufficient evidence of damages to
withstand a motion for a judgment nov. As
explained above, we find ample evidence in the
record to support the jury’s verdicts. Because the
plaintiffs put forth some evidence for each element
necessary to prove their FELA claims, we find that
the circuit court did not err in denying the Railroad’s
motion for a judgment n.o.v.
5. Denial of the Motion to Sever
The Railroad argues that the circuit court erred
by failing to sever the plaintiffs’ trials because their
claims lacked the requisite commonality to justify
consolidation. Specifically, the Railroad contends
that the plaintiffs were allegedly exposed to asbestos
when they worked at different facilities, during
different time periods, for markedly different
durations, in different trades, through the use of
different products. “An action may be severed, and
actions pending in the same court may be
consolidated, as an aid to convenience, whenever it
can be done without prejudice to a substantial right.”
735 ILCS 5/2-1006 (West 2004). The trial court has
broad discretion in matters of consolidation and
severance, which discretion is to be guided by
considerations of convenience and the rights of the
parties. Needy v Sparks, 51 Ill. App. 3d 350, 355-56
23a
(1977). “Where separate causes are of the same
nature, involve the same or like issues[,] and depend
largely upon the same evidence, consolidation is not
an abuse of discretion.” Ad-Ex, Inc. v. City of
Chicago, 247 Ill. App. 3d 97, 103 (1993). Indeed, in
at least one instance, this court has found
consolidation proper with regard to three personal
injury claims and one wrongful death claim where
the jury was properly instructed, the evidence was
not confusing or misleading, and the record did not
show any prejudice to the defendant. Pickering v.
Owens-Corning Fiberglass Corp., 265 Ill. App. 3d
806, 811-12 (1994). “Inherent in the power to
consolidate is the authority to integrate evidence at a
joint trial in the interest of convenience and
economy.” Pickering, 265 Ill. App. 3d at 8.11.
We agree with the plaintiffs that the trial of their
cases together was not unfair to the Railroad. The
evidence regarding the Railroad’s knowledge of the
hazards of asbestos in the workplace and the
available safety measures for reducing those risks
was the same for all three plaintiffs. The Railroad’s
knowledge of these hazards was not dependent upon
location, so the fact that the plaintiffs may have
worked at different locations is not dispositive of the
severance issue. We recognize that the jury had to
assess the damages issues for each of the three
plaintiffs separately. However, we find that the trial
court balanced this factor with the need for
convenience in the administration of justice and
determined that the jury could handle the separate
damages of three or four plaintiffs at the same time
without causing substantial prejudice to the
Railroad. The jury was properly instructed that it
was to determine the cases of each plaintiff
24a
separately on its own merits. We find that the
decision to allow a consolidated trial of three
plaintiffs was not an abuse of discretion.
6. Denial of Motion for Leave to File Third-Party
Complaint for Contribution
On March 9, 2006, less than three months before
the start of the jury trial under review, the Railroad
filed a motion for leave to file a third-party complaint
against nine asbestos manufacturers and one
insurance company. In the motion, the Railroad
alleged that it should be allowed to file the third-
party complaint because “it is necessary to ensure
that [the Railroad] does not pay more than its pro
rata share of any responsibility it may have for
plaintiffs’ claimed injuries.” The Railroad alleged
that it had not filed the motion earlier because it
“needed to conduct an investigation with respect to
those companies or entities that may be responsible
for plaintiffs’ claimed injuries.” The Railroad blamed
its late filing on the plaintiffs, who “did not provide
information in response to defendant’s discovery
requests regarding other lawsuits until August
2005.” The Railroad alleged that it “then, at its own
considerable expense, traveled to Florida and
reviewed those files to obtain copies of all relevant
pleadings.” On March 15, 2006, the circuit court
denied the motion as untimely with regard to the
trial of the plaintiffs, although it later granted the
motion for future trials.
Although the trial court may allow a FELA
defendant to file a third-party complaint for
contribution (Norfolk & Western Ry. Co. v. Ayers, 538
U.S. 135, 162, 155 L. Ed. 2d 261, 284, 123 S. Ct.
25a
1210, 1226 (2003)), the circuit court is justified in
exercising its discretion to deny leave to file a third-
party complaint when a late filing would delay the
underlying trial. Grimming v. Alton & Southern Ry.
Co., 204 Ill. App. 3d 961, 977-78 (1990). The
appropriate time for the Railroad to have filed its
third-party complaint for contribution was within the
time for it to file its answer. See Grimming, 204 III.
App. 3d at 977.
In its motion, the Railroad did not assert that
when it filed its answer in April 2004, it did not
know or have records of the manufacturers providing
asbestos products to the facilities at which the
plaintiffs worked. When the Railroad filed its
answer, it failed to file a request for an extension of
time within which to file its third-party complaint.
Rather, the Railroad waited until almost two years
after it had filed its answer and less than three
months before the trial under review to request leave
to file a third-party complaint. As in Grimming, if.
the circuit court had granted the Railroad’s motion
for the trial under review, 10 additional third-party
defendants would have been brought into the case,
necessarily delaying the trial. The fact that the
circuit court granted the motion for subsequent trials
substantiates the fact that the circuit court’s denial
was based on the delay. It was not an abuse of the
circuit court’s discretion for the court to determine
that it was a prejudice to these plaintiffs on the
immediate trial docket to grant the motion for leave
to file a third-party complaint.
7. Exclusion of Evidence of Absence of Warnings
From Asbestos Manufacturers
26a
The Railroad’s fourth issue on appeal is that the
circuit court erred in granting the plaintiffs’ motion
in limine to exclude evidence that the manufacturers
of the asbestos-containing products used in the
Railroad’s facilities did not include warnings on their
packages. The Railroad argues that evidence
regarding warnings is relevant to the issue of
foreseeability and, therefore, properly admitted.
“Whether granted or denied, a motion in limine
itself does not preserve the issue for appellate
review.” Bergman v. Kelsey, 375 Ill. App. 3d 612,
635 (2007) (quoting Sullivan-Coughlin v. Palos
Country Club, Inc., 349 Ill. App. 3d 553, 561 (2004)).
“Rather, to preserve an error in the exclusion of
evidence, the proponent of the evidence must make
an adequate offer of proof in the [circuit] court.’ ”
Bergman, 375 Ill. App. 3d at 635 (quoting Sullivan-
Coughlin, 349 Ill. App. 3d at 561). “ ‘Failure to make
such offer of proof results in waiver of the issue on
appeal.’” Bergman, 375 Il. App. 3d at 635 (quoting
Sullivan-Coughlin, 349 Tl. App. 3d at 561).
Here, as set forth in the Railroad’s reply brief, the
only offer of proof that the Railroad made concerning
warnings on asbestos products was during the video
evidence deposition of the plaintiffs’ expert industrial
hygienist, Michael J. Ellenbecker. During this
deposition, the Railroad presented Mr. Ellenbecker
with a document that, according to the Railroad,
dealt with Kaylo pipe insulation, an insulating
product made by Owens-Corning in the 1950s. The
Railroad had Mr. Ellenbecker read some writing on
the document that stated “non[Jirritating to the skin
and non[jtoxic.” We find that, even if evidence of
warnings on asbestos products was relevant to the
issue of foreseeability, the Railroad failed to lay the
7
27a
proper foundation for the admission of this evidence
within its offer of proof. The offer of proof did not set
forth any evidence tending to prove that the Railroad
used that particular product, when the Railroad used
the product, that anyone at the Railroad saw the
statement on the exhibit, or whether the Railroad
relied on the statement. Accordingly, it was not an
abuse of discretion to exclude the evidence set forth
in the offer of proof. We find the issue of
admissibility waived for all other direct evidence of
warnings on asbestos products, because absent an
offer of proof, there is no way to determine whether a
proper foundation for the admission of that evidence
was established.
8. Sustaining Objection to Recross-Examination of
Dr. Pohl on Lack of Warnings
The Railroad also argues that the circuit court
erred in sustaining an objection to the Railroad’s
cross-examination of the _ plaintiffs’ expert,
Dr. Douglas Pohl, regarding the absence of warnings
on asbestos products until the 1960s, after Dr. Fohl
testified to that effect on direct examination. On
direct examination, the following colloquy occurred
between counsel for the plaintiffs and Dr. Pohl:
“Q. In 1969, Don Hyatt started
working at a job for the *** Railroad
where he would remove asbestos pipe
covering and reapply it, sometimes
make this mud that you’ve talked about
and those sorts of activities. What is
your opinion, sir, based upon a
reasonable degree of medical certainty
as to whether it was generally known by
28a
1969 that those types of activities
carried a risk of asbestos disease?
A. Of course it was. The warnings
were starting to go on products in 1964.
So, clearly, industry was well aware of
the dangers and they were actually
putting warning labels on the products.
The problem was and was recognized
that if not all the products had the
warnings or the products were delivered
to the workers without warnings-—
Q. Let me interrupt you there, sir.”
The Railroad did not object or ask that Dr Pohl’s
answer be stricken. After the direct examination
ended, the Railroad conducted a brief cross-
examination of Dr.Pohl with respect to his
credentials, his possible bias as a hired expert
witness who testifies primarily on behalf of plaintiffs,
his lack of specific knowledge of the plaintiffs’
specific histories of exposure and medical conditions,
and other matters unrelated to the product-warnings
issue. On redirect, counsel for the plaintiffs
questioned Dr. Pohl only on issues elicited by the
Railroad on_ cross-examination. On _srecross-
examination, the Railroad stated as follows: “One
last area, Your Honor. You mentioned, Dr. Pohl,
that when you talked about the scientific literaturef[,]
warnings from manufacturers didn’t come in until
the 1960[]s and early “70[]s—”
At that time, the attorney for the plaintiffs
objected on the basis that the questioning violated
the circuit courts order in limine. The attorney for
the Railroad argued that the plaintiffs opened the
door to this questioning by eliciting information on
the warnings issue on direct. However, he did not
29a
make an offer of proof. From the record, it appears
that counsel was going to reiterate what Dr. Pohl
had testified to on direct, that manufacturers began
to put warnings on their products in the 1960s. We
can only guess what the remaining portion of
counsel’s question was going to be. This, again,
highlights the importance of making an adequate
offer of proof. “When a party seeks to have a
reviewing court determine whether the trial court’s
evidentiary rulings improperly restricted’ the
examination of a witness, the record must be clear
regarding what the witness’[s] testimony would have
been.” Holder v. Caselton, 275 Tll. App. 3d 950, 955
(1995). The purpose and importance of an offer of
proof have been described as follows:
“[Olffers of proof are designed to
eliminate such speculation and not only
to give the trial court the opportunity to
better understand the nature of the
proffered evidence—and thereby
reevaluate its prior ruling—but also to
give courts of review the opportunity to
see precisely the nature of the evidence
the appellant complains the trial court
improperly excluded.” Holder, 275 Ill.
App. 3d at 955 (quoting People v. Land,
241 Ill. App. 3d 1066, 1086 (1993)).
Because the Railroad failed to make an adequate
offer of proof at the trial, this court cannot know the
exact nature of the evidence the Railroad claims the
circuit court erroneously excluded. See Holder, 275
Ill. App. 3d at 956. We decline to speculate about
what question counsel was attempting to ask
Dr. Pohl and what Dr. Pohl’s testimony would have
been. Accordingly, we have no basis upon which to
30a
conclude that the circuit court erred in excluding the
recross-examination of Dr. Pohl.
9. Excluding Evidence of Customs and Practices or
Other Companies or Industries
The Railroad argues that the circuit court erred
in excluding evidence of customs and practices of
other companies or industries in dealing with the
dangers associated with asbestos at the time of the
plaintiffs’ employment. The circuit court granted the
plaintiffs’ motion in limine to exclude this evidence.
However, the Railroad did not make any offer of
proof regarding this evidence. As explained above
with regard to the evidence of the lack of warnings
on asbestos-containing products, there is no way for
this court to review the propriety of the circuit
court’s ruling on this issue because there is no way of
knowing what the evidence would have shown.
Accordingly, we find this issue waived.
10. Allowing Evidence of the Diagnosis of a
Nonplaintiff
The Railroad argues that the circuit court erred
by allowing evidence of the specific diagnosis of a
plaintiff not involved in the trial during the
plaintiffs’ cross-examination of the Railroad’s expert
radiologist, Brent Harrison, M.D. On direct
examination, Dr. Harrison testified that based on his
review of the plaintiffs’ chest X rays, they did not
truly have the asbestos-related disease with which
they had been diagnosed by Dr. Schonfeld. During
cross-examination, counsel for the plaintiffs
3la
established that Dr. Harrison had been acquainted
with defense counsel for several years. Counsel then
stated to Dr. Harrison that he wished to review the
diagnoses set forth in Dr. Harrison’s reports with
regard to other injured claimants referred to
Dr. Harrison by counsel for the Railroad. The
Railroad objected on the basis of relevance, and the
circuit court overruled the objection. The Railroad
requested a continuing objection, which the circuit
court noted. Counsel for the plaintiffs then
proceeded to verify with Dr. Harrison that his
reports on several other injured claimants stated,
“(T]here is no evidence of active disease and nothing
to suggest previous occupational exposure.”
Dr. Harrison answered each leading question in the
affirmative but kept interjecting that there was more
in the reports’ summaries than counsel was
suggesting.
Counsel for the plaintiffs then asked the same
question about Dr. Harrison’s report on Daniel
Hogan, a nonplaintiff associated with a previous trial
group in this matter. Dr. Harrison again verified
that he had reached the same conclusion-that “there
is no evidence of active disease and nothing to
suggest previous occupational exposure”—but again
interjected that there was more written in Mr.
Hogan’s summary than counsel for the plaintiffs had
read. Counsel then stated, “Right, because Dan
Hogan had cancer and had part of his lung removed,
isn’t that true?” The Railroad then objected, again
on the basis of relevance. The circuit court did not
rule on this objection, and the questioning continued
concerning another claimant.
According to the Railroad, the circuit court should
have sustained the Railroad’s objection and stricken
32a
the question concerning Mr. Hogan from the record.
However, the plaintiffs correctly point out that the
Railroad did not properly preserve this error for
review because it failed to obtain a ruling on its
objection. See Harris Trust & Savings Bank uv.
Abraham-Zwirn, 314 Tl. App. 3d _ 527, 540 (2000)
(citing People v. Waller, 67 Ill. 2d 381, 386 (1977)).
In addition, we may consider this issue waived
pursuant to Illinois Supreme Court Rule 341(h)(7)
(210 Ill. 2d R. 341(h)(7)), because the Railroad cites
no authority for its position. See also Piasa Motor
Fuels v. Industrial Comm’n, 368 [ll. App. 3d 1197,
1205 (2006). Accordingly, we find that the Railroad
has waived this issue on appeal.
Moreover, “[a] reviewing court will grant reversal
based on evidentiary rulings only when the error was
substantially prejudicial and affected the outcome of
the trial.” Bachman v. General Motors Corp., 332 IIl.
App. 3d 760, 785 (2002). “The burden is on the party
seeking reversal to establish prejudice.” Bachman,
332 Il. App. 3d at 785. We do not believe that the
Railroad has met its burden to establish such
prejudice. The Railroad’s contention in this regard is
that Mr. Hogan’s condition bolstered the plaintiffs’
claims of their alleged fear of cancer. However, even
absent the question from counsel regarding a
nonplaintiffs cancerous condition, the Railroad
introduced credible evidence, in the form of expert
testimony, that a person with asbestosis is at an
increased risk of cancer. Accordingly, we cannot find
that the question affected the outcome of the trial,
and we decline to reverse the judgment of the circuit
court on this basis.
33a
11. Excluding Evidence of Other Medical Conditions
of the Plaintiffs
The Railroad also claims that the circuit court
erred when it granted the plaintiffs’ motion in limine
to exclude evidence of their medical conditions that
were not alleged to be asbestos-related. However,
the Railroad fails to cite to the record to direct this
court to any offer of proof made by the Railroad at
the trial regarding evidence of any of the other
medical conditions it sought to have admitted. This
is a violation of M[llinois Supreme Court Rule
341(hX(7) (210 Ill. 2d R. 341(h)(7)), which requires
that the argument portion of the appellant’s brief
include citation of the pages of the record relied on.
In addition, we note that the Railroad’s brief
incorrectly describes the circuit court’s ruling. The
circuit court granted the plaintiffs’ motion in limine
. to exclude “any reference or evidence that any
plaintiff suffered from any disease other than those
claimed herein unless defendant can first lay a
proper foundation that the other illness or disease is
connected to the plaintiffs currently claimed illness
or symptoms.” (Emphasis added.) The circuit court’s
ruling was a correct reflection of the law. The
Illinois Supreme Court has held that such a
foundation is necessary before introducing evidence
of other injuries. See Voykin v. Estate of DeBoer, 192
Ill. 2d 49, 59 (2000). Without an adequate offer of
proof, neither the circuit court nor this court has any
way of knowing whether the Railroad could establish
an adequate foundation for the evidence it sought to
introduce or whether expert testimony was necessary
to establish the relationship between the plaintiffs’
complaints and their other injuries and conditions
34a
See Voykin, 192 Ill. 2d at 59. Hence, we find this
issue waived with regard to any evidence for which
there was no offer of proof and for which the Railroad
fails to cite to the record.
Although waived for a failure to cite to the record
on appeal, our review of the record establishes that
the Railroad did attempt to ask Mr. Hyatt on cross-
examination whether he has high blood pressure.
The plaintiffs objected, citing the circuit court’s order
in limine which required that a proper foundation be
established for the admission of evidence of another
medical condition. During a sidebar, the Railroad
explained to the circuit court that it wished to ask
Mr. Hyatt whether anyone had ever told him his
high blood pressure could be attributed to his
shortness of breath and whether he was following his
doctor’s advice about taking medication for high
blood pressure. The circuit court asked the Railroad
if it had any witness who could attribute high blood
pressure to shortness of breath. The Railroad
replied: “I don’t know, Your Honor. I was just going
to ask him if anybody ever told him that.” The
plaintiffs pointed out that the Railroad had disclosed
no expert opinion on the matter. The circuit court
sustained the objection. We find that this was
proper because the Railroad was unable to establish
the requisite foundation under Voykin. 192 Ill. 2d at
59.
12. Denying the Railroad’s Motion to Quash the
Subpoena of Lyndle Burton
The Railroad argues that the circuit court erred
by denying the Railroad’s motion to quash the
plaintiffs’ Illinois Supreme Court Rule 237 (210 Ml.
35a
2d R. 237) subpoena, which compelled the testimony
of the Railroad’s employee, Lyndle Burton. Rule
237(b) provides that the appearance at a trial of a
person who at the time of the trial is an officer,
director, or employee of a party may be required by
serving the party with a notice designating the
person who is required to appear. 210 Ill. 2d R.
237(b). “Compelling the appearance of a party at
trial is a matter for the sound discretion of the trial
court, and the court’s power to order a party to
appear should only be exercised for a good cause and
in such a manner that a party may not be subject to
harassment, oppression[,] or hardship.” Pickering v
Owens-Corning Fiberglas Corp., 265 ll. App. 3d 806,
816 (1994).
According to the Railroad, compelling Burton’s
appearance was error because Burton was not hired
until 2003 and thus had no relevant information
regarding the Railroad’s industrial hygiene practices
and procedures during the plaintiffs’ employment
from 1939 to 1979. We note that the plaintiffs did
not file a response to the motion to quash and that
the transcript of the final pretrial conference, which
according to the docket sheet is when the circuit
court heard arguments on the motion to quash, is not
a part cf the record on appeal. Therefore, we have no
way of knowing the justification given by the
plaintiffs for compelling Burton’s attendance at the
trial. However, our review of the record reveals that
Burton was called as an adverse witness at the trial
pursuant to section 2-1102 of the Illinois Code of
Civil Procedure (735 ILCS 5/2-1102 (West 2004)). On
cross-examination, he testified to his qualifications
as an expert witness in the field of industrial hygiene
and explained the nature of the field to the jury. He
36a
testified that the purpose of an industrial hygienist
is to ensure a safe workplace and that he was the
first hygienist to be hired by the Railroad despite the
field having been in existence since at least the
1940s.
Burton further testified that he was familiar with
the “AAR documents,” which is a group of documents
that were admitted into evidence without objection.
These documents consist of various letters and
meeting notes obtained from the Association of
American Railroads (the AAR), of which the Railroad
is a member. Without objection, counsel for the
plaintiffs reviewed these documents with Burton,
and based on these documents. Burton opined that
the Railroad knew that asbestos could potentially be
hazardous in the 1930s. Burton further opined that
the MRailroad’s’ failure to implement’ the
recommendations set forth in the AAR documents,
such as air testing, wetting down asbestos to
minimize dust, and the use of respirators, would
have been an unreasonable safety practice at the
time that these recommendations were issued.
Furthermore, Burton explained to the jury the
concept of bystander exposure. Based on the
foregoing testimony by Burton, we cannot say that
the circuit court’s order compelling his attendance at
the trial pursuant to Illinois Supreme Court Rule
237 was an abuse of discretion. Burton clearly had
information relevant to the issues of liability in this
action.
13. Prohibiting the Railroad From Cross-Examining
Dr. Breyer on the “Gitlin Study”
:
37a
The Railroad next argues that the circuit court
erred when it prohibited the Railroad from cross-
examining the plaintiffs’ expert, Donald A. Breyer,
M.D., concerning the “Gitlin Study.” “Decisions of
the trial court on the admission of evidence will not
be disturbed absent an abuse of discretion.”
Bowman v, University of Chicago Hospitals, 366 Il.
App. 3d 577, 587 (2006). “A court abuses its
discretion when no reasonable person would agree
with the trial court’s decision.” Bowman, 366 Il.
App. 3d at 587. “In general, cross-examination of an
expert witness with material from ‘a recognized text
or treatise is proper where either the court has taken
judicial notice of the author’s competence [citation]
or, absent concession by the witness, the cross-
examiner proves the text or treatise is authoritative
{citations].’” Bowman, 366 Ill. App. 3d at 587
(quoting People v. Johnson, 206 Ill. App. 3d 875, 879
(1990)). “The author’s competence is established if
the judge takes judicial notice of it{] or if it is
established by a witness expert in the subject.”
Darling v. Charleston Community Memorial
Hospital, 33 Il. 2d 326, 336 (1965).
Here, the circuit court granted the plaintiffs’
motion in limine to exclude “[a]ny reference to a
publication by Gitlin, et al., unless defendant can
first establish, outside the presence of the jury, an
acceptable foundation for reference to the article in
the presence of the jury.” The only offer of proof
made by the Railroad was during the cross-
examination of Dr. Breyer, who testified via video
evidence deposition. Dr. Breyer testified that he is a
diagnostic radiologist and a “B-reader” who is
certified by the National Institute of Occupational
Safety and Health. As Dr. Breyer explained, a B-
38a
reader conducts side-by-side comparisons of patients’
chest X-rays with standard films that reflect varying
degrees of exposure to asbestos. Dr. Breyer testified
that he conducted B-read examinations of all three
plaintiffs’ chest X-rays. On each plaintiffs B-read,
Dr. Breyer testified to varying degrees of
abnormalities consistent with asbestosis.
On cross-examination, the Railroad asked
Dr. Breyer if he was familiar with the Gitlin Study.
Dr. Breyer testified that he had heard of the study
and had read the article about a year befcre his
testimony. Dr. Breyer verified that the article on the
Gitlin Study appeared in the Journal of Academic
Radiology, which is a _ peer-reviewed journal.
Dr. Breyer admitted that when he was publishing in
his academic career, he relied upon various review
articles as source material. The Railroad then asked
Breyer if the Gitlin Study is the type of article that
he would have looked at if he was going to express an
opinion or write an article on the same topic.
Dr. Breyer answered that he could only say that it is
an article in a peer-reviewed journal. Dr. Breyer
then explained that it was his understanding that
the authors of the Gitlin Study had compared some
B-reader findings with their own findings and had
concluded that these B-reader radiologists had a
higher number of positive findings than they did.
Dr. Breyer did not recall the exact figures. The
article itself does not appear in the record on appeal.
Based on the foregoing, we cannot say that it was
an abuse of discretion to exclude the cross-
examination of Dr. Breyer concerning the Gitlin
Study. A reasonable person could find that the
Railroad’s offer of proof did not establish the authors’
competence or the authoritative nature of the article.
39a
We recognize that Dr. Breyer admi-ted that the
article was published in a peer-reviewed journal.
However, the authors of the article were not even
identified, and we decline to hold that proof that a
study is published in a peer-reviewed journal
_ establishes, as a matter of law, the requisite
foundation. Accordingly, we will not reverse the
judgment of the circuit court on this basis.
14. Excluding Testimony Regarding the “Halley
Study”
Finally, the Railroad argues that the circuit court
erred when it precluded the Railroad from eliciting
testimony regarding the “Halley Study.” According
to the Railroad’s brief, the Railroad attempted to
elicit testimony regarding the Halley Study from the
plaintiffs’ industrial hygiene expert, Dr. Michael
Ellenbecker, on cross-examination, as well as the
Railroad’s own industrial hygiene expert, Dr. Francis
Weir, on direct examination. Both experts testified
via video evidence deposition. Although the Railroad
cites to the record where the circuit court’s ruling can
be found regarding the cross-examination of Michael
Ellenbecker, it fails to cite to the ruling regarding
Dr. Weir and fails to cite the actual testimony that
was stricken from the video evidence depositions of
the experts and served as the Railroad’s offer of
proof. Again, this is a clear violation of Illinois
Supreme Court Rule 341(h)(7) (210 Tl. 2d R.
341(hX7)), and we could consider this issue waived
on this basis
Despite the Railroad’s clear violation of Rule
341(h)(7), we have scoured the record for the
testimony and argument needed to resolve the issue
40a
on appeal. Our review of the record reveals that
Dr. Ellenbecker testified on direct examination that
he took into consideration a study, entitled the
“Millette Study,” in rendering his opinion that the
plaintiffs were exposed to significant levels of
asbestos in the course of their employment with the
Railroad. Millette had simulated several activities
involving asbestos that were occurring in the
railroad industry during the relevant time period
and had measured the exposure levels for those
activities. On cross-examination, the Railroad asked
Dr. Ellenbecker whether he was aware of the Halley
Study, a study that reported that an inspector in
Huntington, West Virginia, had taken a
measurement of exposure at a railroad facility
during the mixing of asbestos mud and had
determined that there was an acceptable exposure
level. Dr. Ellenbecker testified, over the plaintiffs’
objection, that he was aware of the study and that, in
his opinion, the study reached an_ erroneous
conclusion. At the trial, the circuit court sustained
the plaintiffs’ objection to cross-examination of
Dr. Ellenbecker using the Halley Study, and this
testimony was cut from the video that was shown to
the jury at the trial.
During the Railroad’s case in chief, the Railroad
requested that it be permitted to read to the jury the
prior testimony of Dr. Weir (from the trial of a prior
group of plaintiffs in this cause) due to Dr. Weir’s
unavailability. During the prior trial, Dr. Weir
testified that he had conducted a literature review
which included the Halley Study. He then described
the report and its findings, explaining that it was
published by a public agency. At no time did
Dr. Weir testify that he considered the author to be
4la
competent or the study to be authoritative. Upon
objection in the prior trial, the Railroad asserted that
Dr. Weir had not relied on the Halley Study in
forming his opinions and that the Halley Study was
being offered as circumstantial proof that the
Railroad had knowledge of the study. At the prior
trial, the circuit court overruled the objection to this
testimony, allowing Dr. Weir’s testimony.
The plaintiffs objected to the reading of Dr. Weir’s
testimony at the trial under review, on the basis of
hearsay, and the circuit court overruled the
objection. Prior to the circuit court’s ruling on the
objection, counsel for the Railroad stated, “The
Halley material would also have to be excluded.” Co-
counsel for the Railroad then stated, “We talked
about Halley. You already ruled that out in
Ellenbecker’s testimony, presuming your ruling is
the same.” Following the circuit court’s ruling that
the testimony could be read to the jury, the following
colloquy between counsel and the circuit court
occurred.
“THE COURT: Okay. Anything else
before the jury comes in? You need time
to clean that up?
MR. GAVIN [counsel for’ the
plaintiffs]: Yes. I mean I feel like I
need to make a record on a lot of this
Dr. Weir testimony because there is a
lot of stuff in here that—there are pages
of discussion about the Halley and stuff.
THE COURT: Okay. You agree to
take that out?
MR. KURZ _ (counsel for’ the
Railroad]: Well, I agree I'll abide by
your ruling.
42a
THE COURT: You agree it’s coming
out?
MR. KURZ: I think it should come
in, but I understand your ruling.
THE COURT: Why don’t the two or
three of you take a few minutes, see
what you can excise out of there. If you
don’t agree, I'll rule.
MR. KURZ: That’s fine.”
The record reflects that the Railroad read to the
jury the testimony of Dr. Weir, excluding his
testimony about the Halley Study, without further
argument on the issue of its admissibility .
We will first address the circuit court’s decision to
exclude the Railroad’s’ cross-examination of
Dr. Ellenbecker regarding the Halley Study. The
Railroad did not obtain Dr. Ellenbecker’s concession
that the Halley Study was an authoritative source of
information in the field of industrial hygiene or that
the author of the Halley Study was competent to
render the conclusions that were rendered in that
study. See Bowman, 366 Ill. App. 3d at 587 (quoting
Johnson, 206 Ill. App. 3d at 879); Darling, 33 Ill. 2d
at 336. In fact, Dr. Ellenbecker testified to just the
opposite. Dr. Ellenbecker testified that the Halley
Study reached an erroneous conclusion. In addition,
even if Dr. Weir’s testimony concerning the Halley
Study had been admitted, Dr. Weir did not testify
about the authoritative nature of the Halley Study.
In fact, the Railroad conceded during Dr. Weir’s
testimony at the first trial that Dr. Weir’s testimony
regarding the Halley Study was not offered as a
source that Dr. Weir relied upon in reaching his
opinions in this matter. According to the Railroad,
Dr. Weir’s testimony regarding the existence of the
43a
Halley Study was being offered in the first trial only
as circumstantial evidence that the Railroad might
have had knowledge of its conclusions. Accordingly,
we find that the circuit court’s ruling was not an
abuse of discretion because a reasonable person
could reach the same conclusion that the Railroad
again failed to lay the requisite foundation to use the
Halley Study for the purpose of cross-examination.
We now turn to the exclusion of Dr Weir’s
testimony about ‘he Halley Study. The circuit court
clearly stated that the parties should excise all the
testimony that they agreed to excise from Dr. Weir’s
testimony and that if there was anything they did
not agree on, the circuit court would rule. The
Railroad then read Dr. Weir’s testimony to the jury,
excluding his testimony about the Halley Study,
without any further argument. Accordingly, we find
that the Railroad failed to properly preserve any
alleged error on the part of the circuit court in
excluding Dr. Weir’s testimony on the Halley Study,
by stipulating to its exclusion
[The preceding material is non publishable
under Supreme Court Rule 23.]
CONCLUSION
For the foregoing reasons, the judgment of the
circuit court is affirmed.
Affirmed
WELCH and WEXSTTEN, II, concur.
44a
APPENDIX B
SUPREME COURT OF ILLINOIS
DENIAL OF PETITION FOR LEAVE
TO APPEAL
SUPREME COURT OF ILLINOIS
THURSDAY, MAY 29, 2008
THE FOLLOWING CASES ON THE LEAVE TO
APPEAL DOCKET WERE DISPOSED OF AS
INDICATED:
No. 106053 - Xon Blackburn et al. (Delbert Copple
et al., respondents, v. Illinois Central
Railroad Company, petitioner). Leave
to appeal. Appellate Court, Fifth
District. (5-06-0618)
Petition for leave to appeal
denied.
45a
APPENDIX C
FEDERAL EMPLOYERS LIABILITY ACT
45 USC § 51
§ 51. Liability of common carriers by railroad, in
interstate or foreign commerce, for injuries to
employees from negligence; definition of employees
Every common carrier by railroad while engaging
in commerce between any of the several States or
Territories, or between any of the States and
Territories, or between the District of Columbia and
any of the States or Territories, or between the
District of Columbia or any of the States or
Territories and any foreign nation or nations, shall
be liable in damages to any person suffering injury
while he is employed by such carrier in such
commerce, or, in case of the death of such employee,
to his or her personal representative, for the benefit
of the surviving widow or husband and children of
such employee; and, if none, then of such employee’s
parents; and, if none, then of the next of kin
dependent upon such employee, for such injury or
death resulting in whole or in part from the
negligence of any of the officers, agents, or employees
of such carrier, or by reason of any defect or
insufficiency, due to its negligence, in its cars,
engines, appliances, machinery, track, roadbed,
works, boats, wharves, or other equipment.
Any employee of a carrier, any part of whose
duties as such employee shall be the furtherance of
interstate or foreign commerce; or shall, in any way
46a
directly or closely and substantially, affect such
commerce as above set forth shall, for the purposes of
this Act be considered as being employed by such
carrier in such commerce and shall be considered as
entitled to the benefits of this Act and of an Act
entitled “An Act relating to the liability of common
carriers by railroad to their employees in certain
cases” (approved April 22, 1908) [45 USCS §§ 51 et
seq.] as the same has been or may hereafter be
amended.
47a
45 USC § 53
§ 53. Contributory negligence; diminution of
damages
In all actions hereafter brought against any such
common carrier by railroad under or by virtue of any
of the provisions of this act [45 USCS §§ 51 et seq.] to
recover damages for personal injuries to an
employee, or where such injuries have resulted in his
death, the fact that the employee may have been
guilty of contributory negligence shall not bar a
recovery, but the damages shall be diminished by the
jury in proportion to the amount of negligence
attributable to such employee: Provided, That no
such employee who may be injured or killed shall be
held to have been guilty of contributory negligence in
any case where the violation by such common carrier
of any statute enacted for the safety of employees
contributed to the injury or death of such employee.
48a
45 USC § 56
§ 56. Actions; limitation; concurrent jurisdiction
of courts
No action shall be maintained under this act [45
USCS §§ 51 et seq.] unless commenced within three
years from the day the cause of action accrued.
Under this act [45 USCS §§ 51 et seq.] an action
may be brought in a circuit [district] court of the
United States, in the district of the residence of the
defendant, or in which the cause of action arose, or in
which the defendant shall be doing business at the
time of commencing such action. The jurisdiction of
the courts of the United States under this act [45
USCS §§ 51 et seq.) shall be concurrent with that of
the courts of the several States.
49a
APPENDIX D
DELBERT COPPLE TRIAL TESTIMONY
Q. Did the railroad ever tell you to go toa
doctor periodically to check your health?
A. No.
Q. And then you retired in 1986:
A. Yes.
Q. And you’ve been enjoying retirement
since then?
A. Yes.
Q. Mr. Copple, when did you first find out
that you had been injured by your exposure to
asbestos on the railroad?
A. Had to go to Mt. Vernon to Dr.
Schonfeld in 2003 I believe.
Q. Dr. Schonfeld?
A. Yes.
Q. When you went to see Dr. Schonfeld,
had you had an x-rays taken to you knowledge?
A. I can’t remember.
Q. Did he talk with you?
A. Yes.
Q. Did he examine you?
A. Yes.
Q. Did he listen to your heart and lungs?
A. Yes.
Q. Did he talk with you about your work?
50a
A. In Centralia.
Q. I meant more specifically, do you live in
a home?
A. Yes.
Q. And how much land do you live on?
A. I think my lot measures about 175 by
175, 150.
Q. What do you do day to day?
A. basically baby-sit or help my wife baby-
set. General repairs and things like this around the
house.
Q. Do you have any activities that require
exertion?
A. I workout, we have got a center there in
Centralia.
Q. What do you do there?
A. I walk, and we have various machines, I
workout on those.
Q. How is you breathing affected when you
exert yourself.
A. You know, you get winded.
Q. As you sat here in this trial in the chair,
have you been short of breath?
A. As long as I'm not active ['m not. But I
walked up the stairs yesterday morning and I was
breathing hard..
Q. Delbert, did you smoke cigarettes in
your life?
5la
Q. So have you read about it prior to the
beginning of this trial? Do you understand what I’m
saying?
A. No.
Q. Before this trial began, had you done a
little bit of reading on it?
A. Yes.
Q. And then, of course, you said you heard
about it today?
A. Yes.
Q. Now, how do you feel, Delbert, about
the prospect that you may develop one or more of
these diseases?
A. Well, I’m concerned about it. I’m even
worried about it.
Q. And let’s talk a little bit about that.
Can you expand on that a little bit more? I mean,
how often do you think about it, what affect does it
have on your mood or your willingness or desire to
do things, that sort of thing?
MR. KURZ: Objection, Your Honor, it
calls for a narrative, it’s also suggestive.
THE COURT: To the extent that it
calls for a narrative, [ll sustain that. I think it
should be confined, at best, to question and answer.
Q. (MR. GAVIN CONTINUING) Thank
you, Your Honor. Delbert, what effect does this have
on your day to day activities?
A. It’s on my mind a lot. As far as
interfering with my everyday life, it hasn’t so far.
But I do think about it a lot.
Q. Have you gone to a psychiatrist?
A. No.
52a
Q. Have you gone to a psychologist?
A. No.
Q. Has the doctor been giving you medicine
for it?
A. No.
Q. What do you intend to do about
monitoring your health in the future?
A. I have an appointment with Dr.
Ezpeleta, I think he said it was the 18” of this
month, or sorry, April. And I have another
appointment in July and we talked about it a little
that we'll stay on top of it as best we can he said.
Q. And that will involve going back to him
every now and then?
A. Yes, I’ve got an appointment in July.
Q. Where do you live, Delbert?
A. No.
Q. Would you recognize him if he walked
into the room?
A. I don’t know.
Q. You haven’t had any discussions with
your own doctors, not Dr. Schonfeld, but your own
doctors about cancer and the likelihood of developing
cancer. You told us you were concerned with -- did I
understand you to say a moment ago you knowledge
of the potential of cancer, while you’ve done a little
bit of reading, your knowledge really stemmed from
the testimony you've heard so far, right?
A. Would you repeat that, sir.
Q. Did I understand you to say that your
concerns about cancer and the knowledge you have
53a
about potential for cancer have been stirred up by
what you’ve heard this week?
A. Right, yes.
Q. So it wasn’t until you heard Dr. Pohl
that you learned a lot of things you did today?
A. Right.
Q. You wife couldn’t be here because she’s
baby-sitting your grandchildren?
A. Just one.
Q. The six year old is in school?
54a
APPENDIX E
CARL HEINRICHSMEYER TRIAL TESTIMONY
Q. How do you feel about — well, what is
your understanding of whether you have a risk of
developing cancer from your asbestos exposure?
A. What’s my understanding?
Q. Yes.
A. After your first day -- what I read I
wasn’t real happy. My wife can verify that if she
needs to. But it makes you wonder. It does. I don’t
feel bad, but I don’t know what’s going on in there.
And this longevity stuff or whatever words you used,
is right there.
Q. Do you have any concern over that?
A. Oh, yeah.
Q. How does your concern or your feelings
about it affect you from day to day?
A. Well, right now all my ducks aren’t in a
row, and I’m going to have to get my life better and
have things set up better to take care of my family
and what’s left. If I’d go, we’re not in real good shape
right now. It’s more of a day to day thing taking care
of my future. I need to think about that now.
Q. What do you intend to do to have your
health monitored?
A. Well, I go to a doctor, I’m through the
VA because I don’t have any health insurance. So,
unfortunately, when I say my local doctor, they
switch so much on you I don’t really have one per se.
I have turned it into the VA and this and that.
55a
Q. You went over to see Dr. Schonfeld and
you recall talking to him a little bit. You said you
don’t recall talking about your history, but you recall
doing the breathing test and the examination, is that
right?
A. Yes.
Q. You didn’t complain to him of any
shortness of breath at that time, did you, sir?
A. I did after I got through with the test.
Q. Well, that’s hard work doing the test,
right?
A. Yes.
Q. But the actual -- when you got there
and he asked you how you're doing day to day, you
weren’t having any shortness of breath?
A. Can’t say that. If I exercise.
Q. If you exercise a lot, sure. Now, in fact,
when we talked last year you felt that your health
was pretty good, right --
A. Yes, sir, it was.
Q. -- do you recall] that? You've had a bit of
a downturn with your diabetes?
A. Yes.
Q. After you saw Dr. Schonfeld, he did not
give you, as you left that day, a report detailing his
findings, did he, sir?
A. No.
Q. And he didn’t mail you one either, did
he?
A. No.
Q. In fact, you haven’t received or seen his
report until about three years later?
56a
Right.
You just got it recently, right?
Yes.
Did Dr. Schonfeld send it to you?
I don’t remember, I’m sorry.
Where did you get it from, do you know?
No. I don’t know.
PoPO&rp&p
Q. Now, currently you go to the VA center
as a veteran for your care; is that right?
A. Yes.
Q. There is one in Mt. Vernon, as I recall,
and there is a larger facility in Marion?
A, Yes.
Q. Now, as I understand your testimony,
you haven’t told any doctors at the VA center about
what Dr. Schonfeld found, but recently you’ve mailed
the material to them?
A. Yes.
Q. Okay. So -- and you did that when, last
A. I’m not sure.
Q. Was it within the last -- was it in the
year 2006?
A. Yes.
Q. So you see Dr. Schonfeld in April of
2003, and the first you send this off to a doctor is
2006, true?
A. Yes.
Q. Okay. You haven’t sought any medical
care, psychiatric, psychological, any type of
counseling for stress or anxiety, true?
57a
A. True.
Q. You haven’t asked them for any
medications for anxiety, stress, that type of thing?
A. No.
Q. You're able to do the things you need to
do around the house stili?
A. No.
Q. You lost that ability? Is that based on
the diabetes?
A. Yes.
58a
APPENDIX F
DONALD HYATT TRIAL TESTIMONY
Q. As you sit here today, what’s your
understanding as to whether asbestos causes cancer?
MR. ANDREKANIC: Object to the form
of the question, it’s leading, it also calls for a medical
conclusion.
THE COURT: Overruled. I don’t think
it’s leading. Overruled.
THE WITNESS: Cancer.
Q. (MR. GAVIN CONTINUING) Now,
how have you learned about that over the years?
A. I learned about it after I was working in
the environmental department.
Q. Okay. And how does’ your
understanding that asbestos causes cancer affect you
today knowing that you’ve been exposed to asbestos
and having been diagnosed with asbestosis?
A. Shortness of breath.
Q. I meant psychologically or emotionally.
A. Well, I'd say it’s on my mind all the
time, that's the reason I went to my doctor in the
first place. I had pneumonia in January and I
thought maybe something was coming on me then.
And I went to the doctor and we got it straightened
out.
Q. You said you had pneumonia in
January and you said I thought something was
coming on me then. What do you mean by that?
A. Well, I felt terrible and --
59a
Q. What did you think was coming on you?
A. Anything. They talked about this
asbestos and everything. I knowed I had a -- he said
I had a problem, so I thought maybe I was -- a
problem was coming up. I might be getting
something starting up on me.
Q. Now, have you been to a psychiatrist for
this issue of your fear of asbestos disease?
A. No, I haven’t.
Q. Have you been to a psychologist for that
reason?
A. No, sir.
Q. But you have talked to Dr. Collins?
A. I have talked to Dr. Collins.
Q. Now earlier when [I asked you a
question you told me you mentioned shortness of
breath. Are you short of breath?
A. Yes, sir.
Q. What causes you to be short of breath or
what do you link it to?
A. Well, I don’t know. I was short of
breath before I had my heart surgery and then I had
heart surgery and I felt like a new man. And now
that I feel kind of shortness of breath if I exert
myself very long. —
Q. Okay. Well, you’ve been sitting here, of
course, for three years. As you sat there and listened
to the evidence, were you short of breath just sitting
there?
A. No.
Q. Have you used the steps here to get up
to court?
A. No.
60a
Q. If you were to climb up one flight of
those steps, would --
A. I'd have to stop half way up.
Q. That makes you short of breath?
A. Yes, sir.
Q. Now, you recently were examined at the
request of the railroad by a doctor in St. Louis, right?
A. Yes, sir
Q. And that doctor advised you to see your
heart doctor?
A Yes, sir.
Q Did you do that?
A. Yes, sir, Friday after I was there.
Q. You did it as quickly as you could?
A. Yes, sir.
Q. Did that heart doctor perform a number
of tests on you?
A Yes, sir.
Q. After those tests, was your medical care
changed in any way?
A. No.
Q. In other words, he didn’t order further
surgery or more medicine or anything like that?
A. No. He gave me a clean bill of health as
far as my heart was concerned.
Q. Does your shortness of breath interfere
in any of your daily activities around the home that
you've talked about?
A. Yes. If I mow my yard I've got to stop
and rest.
Q. What kind of mower do you use?
6la
A. I've got a walking behind mower, weed
mower. And I mow the yard with the big mower,
riding mower.
Q. What size area do you walk behind a
mower to mow?
A. Along the road and down along the
road.
Q. How long does it take you to complete
that job with rests?
A. About an hour.
Q. Do you become short of breath when you
do that?
A. Yes, sir. Have to stop, shut her down
for a while and rest a while.
Q. When did you have the bypass surgery?
A. 2001.
Q. 2001. All right. So when was it that
you began to experience the shortness of breath that
you've told these folks about?
About a year ago.
Did you go anywhere, talk to anybody?
Yeah.
Who did you go to?
Dr. Collins.
I'm looking at Dr. Collins records right
now.
Okay. Read it.
In fact, it says April 7th of 2006 --
MR. GAVIN: Your Honor, you can't just
read from a medical record.
THE COURT: Sustained.
Q. (MR. ANDREKANIC CONTINUING)
Let me ask the question this way. In April of -- on
ore OPohpPpop
62a
April 7th of 2006, did you ever tell Dr. Collins that
you were short of breath and that it was a few
months duration?
A. I think so.
Q. All right. So it wasn't a year ago, back
in April, a month ago, you told Dr. Collins it was only
for a few months; is that right?
A. Whatever it says there.
Q. And you knew that your case was
already set for trial?
A. No.
Q. You didn't know your case was set for
trial?
A. I don't know that it was. When did I
find out?
Q. In April of 2006, a month ago, you didn't
know that you were going to be in this courtroom
today?
A. Yes.
Q. You told the jury that you had been
going to your family doctor, Dr. Collins, rather
regularly over the course of the years; is that correct?
A. Yeah.
Q. You didn't consider Dr. Schonfeld to be
a treating physician, you considered Dr. Schonfeld to
be this doctor who the lawyers hired as part of this
screening; is that right?
A. Probably so.
Q. Probably or yes?
A. Yes
63a
APPENDIX G
FEAR OF CANCER INSTRUCTION
If you decide for the plaintiff, Delbert Copple, on
the question of liability, you must then fix the
amount of money which will reasonably and fairly
compensate him for any of the following elements of
damages proved by the evidence to have resulted, in
whole or in part, from the negligence of the
defendant, taking into consideration the nature,
extent and duration of the injury:
The disability experienced and reasonably certain
to be experienced in the future.
The pain and_ suffering experienced and
reasonably certain to be experienced in the future as
a result of the injuries.
The genuine and serious fear of cancer
experienced and reasonably certain to be experienced
in the future.
The present cash value of the reasonable
expenses of medical care, treatment and services
reasonably certain to be received in the future.
Whether any of these elements of damages has
been proved by the evidence is for you to determine.
Plaintiff Copple’s Instruction No.31B
I.P.I Nos. 30.01, .04, 04.01, 04.02, 05, and .06
(2006).
64a
APPENDIX H
DEFENDANT’S PROPOSED FEAR OF CANCER
INSTRUCTIONS DENIED BY TRIAL COURT
DEFENDANT’S PROPOSED INSTRUCTION
NO. _4
In order to recover for fear of cancer, a plaintiff
must demonstrate that his fear is genuine and
serious.
This means fear that. significantly and
detrimentally affects the ability to carry on every day
life and work.
me ttn b dak on igs il lpi aaa Str ce CS Paes Mk tee he ee ee a RS ee se A a a a hee BRS 2 a ee rb
65a
4 DEFENDANT’S PROPOSED INSTRUCTION
N O. ae” See
In order to recover for fear of cancer, a plaintiff
“@ must prove that it is more probably true than not
true that his fear is genuine and serious.
4 Ayers v. Norfolk & Western Railway
: 538 U.S. 135 (2003)
66a
APPENDIX I
VERDICT FORMS
VERDICT FORM A
We, the jury, find for Delbert Copple and against
Illinois Central Railroad Company.
We assess the damages in the sum of
$__ 220,000.00 _, itemized as follows:
The disability experienced and reasonably certain
to be experienced in the future $__75,000.00 _;
The pain and _ suffering experienced and
reasonably certain to be experienced in the future as
a result of the injuries $__15,000.00 __;
The genuine and serious fear of cancer
experienced and reasonably certain to be experienced
in the future $_30,000.00__; and
The present cash value of the reasonable
expenses of medical care, treatment and services
reasonably certain to be received in the future
$ 100,000.00
TOTALS $_ 220,00
Foreperson
fs/ fs/
ls/ fs/
ee. /s/
/s/ [s/
/s/ /s/
67a
[Filed, Clerk of the Circuit Court, June 01, 2006
Ronda Yates, Marion County, Salem Illinois]
%
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ex
—
68a
VERDICT FORM D
We, the jury, find for Carl Heinrichsmeyer
against Illinois Central Railroad Company.
We assess the damages in the sum of
$_ 167,000.00 _, itemized as follows:
The disability experienced and reasonably certain
to be experienced in the future $_75,000.00 ;
The pain and _ suffering experienced and
reasonably certain to be experienced in the future as
a result of the injuries $__15,000.00 ;
The genuine and serious fear of cancer
experienced and reasonably certain to be experienced
in the future $__ 30,000.00 _; and
The present cash value of the reasonable
expenses of medical care, treatment and services
reasonably certain to be received in the future
$__ 47,000.00
TOTALS $__ 167,000.00
Foreperson
/s/ /s/
[s/ [s/
{s/__ fs/
/s/ [s/
/s/ /s/
/s/ /s/
[Filed, Clerk of the Circuit Court, June 01, 2006
Ronda Yates, Marion County, Salem Illinois]
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69a
VERDICT FORM F
We, the jury, find for Donald Hyatt against
Illinois Central Railroad Company.
We assess the damages in the sum of
$_220,000.00 __, itemized as follows:
The disability experienced and reasonably certain
to be experienced in the future $__75,000.00__ ;
The pain and_ suffering experienced and
reasonably certain to be experienced in the future as
a result of the injuries $__15,000.00_;
The genuine and serious fear of cancer
experienced and reasonably certain to be experienced —
in the future $_30,000.00 ; and
The present cash value of the reasonable
expenses of medical care, treatment and services
reasonably certain to be received in the future
$_100,000.00 __.
TOTALS $__ 220,000.00
Foreperson
/s/ /s/
/s/ /s/
/s/ /s/
/s/ /s/
/s/ /s/
/s/ /s/
(Filed, Clerk of the Circuit Court, June 01, 2006
Ronda Yates, Marion County, Salem Illinois]
70a
APPENDIX J
FIRST TRIAL GROUP
JOSEPH DENK TRIAL TESTIMONY
Q. I mean, you had to make a real effort?
A. Yes, sir.
Q. Do you remember Dr. Schonfeld? on
A. Yes, sir.
Q. Did he tell you in 2002 that you had
asbestosis?
A. Yes, sir.
Q. Did he tell you anything about asbestos and
your risk of cancer?
A. That was my first indication of the asbestos
being as effective as it is.
Q. As being a cancer causing?
A. Yes.
Q. Now Joe, you mention your wife passed away
about a year ago?
A. Yes, sir.
Q. What did she die from, Joe?
MR. KURZ: Objection, relevance, Your Honor.
THE COURT: Im going to allow it over
objection. I think I know where this is going.
THE WITNESS: She had a battle with cancer
seven years. She had a radical mastectomy and five
years later she had pancreas cancer.
Q. (MR. GAVIN CONTINUING) She had
pancreatic cancer, right?
7la
A. Yes.
Q. Now, of course, you were with your wife while
she was ill, right?
A. Yes.
; Q. And did you see how her cancer, both cancers,
affected her?
MR. KURZ: Same objection. May I show a
continuing objection?
THE COURT: Yes, you can show a continuing
objection.
THE WITNESS: We were married 64 years so
I was constantly with her. Even at a deposition and
everything else. The gentleman said they would halt
the deposition and let me go home because my wife
was on her death bed at that time. But we continued
the deposition. For all concerns we did that.
Q. (MR. GAVIN CONTINUING) I’m going to say
this bluntly to you, Joe. Did you see how your wife
suffered with her cancer?
A. Yes.
Q. Now Joe, after you saw how your wife suv” ered
with her cancer, how do you feel about getting cancer
from asbestos exposure?
A. Well, it’s not a very good feeling to have
something that affects yourself. After -- like I say, 64
years together, no matter what it is you’re one
person and whatever affects one affects the other.
72a
APPENDIX K
DANIEL HOGAN TRIAL TESTIMONY
A. And the first thing this doctor did was make
me have a physical. And with the physical I had a
chest x-ray and he seen a spot on my lung that he
didn’t like. He sent me to a lung specialist. The lung
specialist gave me a CAT scan, a lung scan and he
spotted what he thought was a tumor on the back of
my right upper lobe of my right lung. And when they
tell you that, you don’t think, well, could be nothing.
But the surgeons I knew from where I worked, I took
the pictures to them, friends of mine, wanted to
know what they thought, second opinion. And all of
them said get it taken out right away, whenever you
can. Now, this was in December of 1999 and I seen a
surgeon right away and he set it up. They operated
on me January 7th, 2000.
Q. And did you find out that this spot was
cancer?
A. It was a tumor. The doctor looked at -- well,
they opened me up from my neck down to my hip and
when he seen the tumor he thought it was too bad to
just take the tumor out, so they took the upper lobe
of my right lung out, the whole lobe. That’s 20
percent of your lung.
Q. How did you feel when you found out it was
diagnosed as cancer?
A. Oh, God, scares the heck out of you. Lung
cancer anyway, any kind of cancer scares you. I had
a family member die of cancer so | know what it was
like.
73a
Now, Dan, how long were you in the hospital?
I’m going to say three or four weeks.
That long in the hospitals?
Right.
How did you feel after the surgery?
Oh, God, you hurt. You were hurting after the
surgery then you can’t breathe. I had oxygen on me
most of the time. And you are worried about it
because you don’t know if it’s malignant or isn’t
malignant. And he said the lymph nodes around the
upper lobe of my right lung didn’t look that bad so he
didn’t take them out. And when they had the tumor
tested, it was a malignant tumor.
It was?
It was.
Okay. Now --
So that scares you too.
And were you frightened about the process?
You’re right. You got to be frightened about
that, any kind of cancer.
Q. Okay. Now we’re in about January, February
2000, right?
A. Right.
>OPOPO
rPoPO&P&
A. He didn’t get into that. He just said it could
have been. The tumor could have been caused by
asbestos.
Q. Well, how have you done since 2003 in the
sense of how you feel? I mean, how do you feel?
A. I feel all right. But you still got to think about
you had the cancer, you know. Like I said, I had a
relative die from cancer and, you know, you don't
74a
know if it’s going to come back or not. So you always
worry about it.
Q. So are you concerned today about whether you
are gcing to get lung cancer?
A. Oh, sure, sure, you are.
Q. And how does that affect you, Dan?
A. Well, you hope that it didn’t mastisize and get
to other parts of your body. Because down the line I
had a PSA test and my PSA was elevated. So Dr.
Chandon, my family doctor, sent me to a urologist.
The urologist took some tests on me and said I had a
-- I had to go in for radiation treatment, I had an
elevated PSA.
Q. Let me interrupt, okay, because we have to
follow some rules here. So you went and found out
you had an abnormal PSA test?
A. Right.
Q. And this is a prostate thing, right?
A. Right.
Q. Knowing you had had lung cancer, what did
that make you think?
A. Well, you never know if the lung cancer caused
the prostate cancer. You don’t know.
MR. PETERS: Your Honor, can we approach?
THE COURT: Yes.
(Whereupon a side bar commenced.)
THE COURT: For the record, we’re at a side
bar outside the hearing of the jury.
MR. PETERS: Your Honor, I was barred by a
pretrial motion from getting into any other condition
this individual had that didn’t relate to his
symptoms. He had prostate cancer, that’s unrelated.
There is no testimony that’s connected to his
75a
exposure. He also has skin cancer as a problem that
he’s being treated with now. His prostate cancer was
in 2001. The question was after 2000. Now we have
got this out there, this prostate thing, where this
guy’s afraid after he got his cancer -- because he got
prostate cancer he should be more afraid from
getting more cancer. I was barred from getting into
it. I don’t know if this witness wasn’t counseled or
didn’t follow what Mr. Gavin told him, but he should
not have even mentioned this. I move for a mistrial
and have the testimony be stricken in a lesser
alternative.
THE COURT: The attorneys have agreed that
the prostate cancer in itself has nothing to do
whatsoever with this case, it is unrelated to any lung
cancer. And the attorneys have agreed that it is
unrelated to any of the issues in this case. So you
should in no way consider that prostate cancer is a
result of anything having to do with this lawsuit.
And you should not consider that in any way in your
deliberations. You may proceed.
Q. (MR. GAVIN CONTINUING) Dan, just a
couple more points. Do you experience today
shortness of breath?
A. I always have, yes, I do.
Q. Are there certain things that cause you to be
short of breath more than others?
A. Well, the further you walk the more shortness
of breath you'll have.
Q. And then finally, Dan, for your medical
treatment, for your lung cancer, did you get medical
bills from doctors and hospitals and things? Did you
get the bills? Were there medical bills?
76a
A. There were.
MR. GAVIN: Okay. Thank you, Your Honor,
that’s all I have.
THE COURT: Mr. Peters, you may proceed.
CROSS EXAMINATION
QUESTIONS BY MR. PETERS:
Q. Mr. Hogan, good afternoon.
A. Good afternoon.
Q. We talked a little bit about your lung cancer
and some of the concerns you have with that lung
cancer; is that correct?
A. Pardon me?
Q. You’ve talked a little bit about the fact that --
A. Yes, sir, I did.
Q. Has anybody taken the time to tell you that
for all practical purposes you are cured?
A. No.
Q. Did Dr. Schonfeld tell you that?
A. No.
Q. Did any of your treating doctors tell you that?
A. No.
Q. Is that something you’d like to know if it’s
true?
A. Sure.
Q. Okay. What would that do to your fear if you
found out that you were essentially cured?
A. Well, I don’t know if they ever know that.
Q. If a doctor told you that,.would that make you
feel better?
A. It makes you feel better, but --
77a
Q. Now, you were talking a little bit about your
work. Well, actually quite a bit about it. There
weren’t diesel engines operating every day in the
shops, correct?
A. No.
78a
APPENDIX L
FIRST TRIAL GROUP
VERDICT FORMS
VERDICT FORM B
(Received, Clerk Appellate Court, 5th District Mt.
Vernon, IL, Jan. 24, 2007]
[Filed, Jan. 24, 2007, Louis E.. Costa, Clerk,
Appellate Court, 5th District]
We, the jury, find for Daniel Hogan and against
Illinois Central Railroad Company and further find
the following:
First: Without taking into consideration the
question of reduction of damages due to the
negligence of Daniel Hogan we find that the total
amount of damages suffered by Daniel Hogan as a
result, in whole or in part, of the occurrences in
question is $_310,000_, itemized as follows:
The disfigurement resulting from the injury
90;
Loss of a normal life experienced and reasonably
certain to be experienced in the _ future
$50,000 .
The pain and_ suffering experienced and
reasonably certain to be experienced in the future as
a result of the injuries $__200,000 :
The fear of cancer experienced and reasonably
certain to be experienced in the future $__0 _; and
79a
The reasonable expense of necessary medical
care, treatment, and services received
$_60,000 __.
TOTAL $_ 310,000
Second: we find that the percentage of such
negligence attributable to Daniel Hogan is _65_
percent (%).
Third: After reducing the total damages
sustained by Daniel Hogan by the percentage of
negligence attributable to Daniel Hogan we assess
Daniel Hogan’s recoverable damages in the sum of
$ 108,500
[Filed, Clerk of the Circuit Court, March 30, 2006
Ronda Yates, Marion County, Salem Illinois]
80a
VERDICT FORM B
Daniel Hogan
Foreperson
/s/ [s/
/s/ /s/
/s/ /s/
fs/ __ Is/
ls/ /s/
/s/ ls/
8la
VERDICT FORM D
We, the jury, find for Joseph Denk and against
Illinois Central Railroad Company.
We assess the damages in the sum of
$ 150,000 __, itemized as follows:
Loss of a normal life experienced and reasonably
certain to be experienced in the future
$__ 50,000 :
The pain and _ suffering experienced and
reasonably certain to be experienced in the future as
a result of the injuries $__ 100,000 > and
The fear of cancer experienced and reasonably
certain to be experienced in the future $__O
TOTAL $_ 150,000
Foreperson
/s/ /s/
/s/ /s/
/s/ /s/
/s/ /s/
/s/ /s/
/s/ /s/
[Filed, Clerk of the Circuit Court, March 30, 2006
Ronda Yates, Marion County, Salem Illinois]
82a
APPENDIX M
THURSTON HENSLEY v. CSX
TRANSPORTATION, INC.
No. E2007-00323-COA-R3-CV
COURT OF APPEALS OF TENNESSEE, AT
KNOXVILLE
2008 WL 683755
February 6, 2008, Session, at the University of
Tennessee College of Law
March 14, 2008, Filed
OPINION BY: CHARLES D. SUSANO, JR.
OPINION
Thurston Hensley (“Employee”) sued CSX
Transportation, Inc. (“Railroad”) pursuant to the
Federal Employees Liability Act (“FELA”), 45 U.S.C.
§§ 51-60 (2008), alleging that he contracted toxic
encephalopathy and asbestosis in the course and
scese of his employment as an electrician with
Raiizead. The case was tried to a jury, which found
in favor of Employce and awarded him $ 5,000,000 in
compensatory damages. Railroad appeals, alleging
that the trial court erred in the following ways: by
directing a verdict against it on the Railroad’s
83a
statute of limitations defense; by charging the jury
with divergent standards of negligence and causation
with regard to Railroad’s negligence and Employee’s
negligence; by giving the jury a verdict form that,
according to Railroad, predetermined the issue of
whether Employee actually had the diseases he
claims; by failing to instruct the jury that a plaintiffs
fear of cancer must be “genuine and serious”; by
failing to declare, as a matter of law, that Employee’s
evidence did not satisfy that standard; and by failing
to declare a mistrial because of Employee’s closing
argument, which Railroad claims was inflammatory.
We reject all of Railroad’s arguments. Accordingly,
we affirm.
OPINION
I.
Only a very brief outline of the facts is needed
here; additional details will be discussed as
appropriate in our analyses of the issues raised by
Railroad. Employee began working as an electrician
for Railroad in 1971. His work exposed him to
asbestos and to a cleaning agent called Dowclene.
These exposures form the basis of Employee’s
lawsuit against Railroad. Employee claims [*3] that
repeated, long-term, high-dose exposure to these
substances caused him to contract asbestosis, a lung
disease, and toxic encephalopathy, a brain disease.
Employee presented evidence that Railroad was
aware for years of the dangers posed by asbestos and
Dowclene, but that it still exposed him to them,
failed to educate him about the risks and failed to
provide adequate safeguards to ensure that his
working conditions were safe. Railroad denies all of
84a
the operative allegations of the complaint.
Specifically, it contends that Employee does not have
either asbestosis or encephalopathy; that his
exposure to asbestos and Dowclene was minimal and
non-damaging; that whatever physical ailments he
has were not caused by such exposure; and that
Employee was educated about the risks and that
proper safety procedures were followed. The jury
sided with Employee. Railroad appeals.
State and federal courts have concurrent
jurisdiction over FELA claims. See 45 U.S.C. $56.
“In FELA cases tried in state courts, the applicable
state rules generally govern procedural matters,
while federal law controls as to all matters of
substantive law.” Jennings v. Illinois Cent. R.R. Co.,
993 S.W.2d 66, 70 (Tenn. Ct. App. 1998). State
procedural rules give way to federal law if
“application of [state] rules would interfere with a
partys substantive federal rights or defenses.”
Pomeroy v. Illinois Cent. R.R. Co., No. W2004-01238-
COA-R3-CV, 2005 Tenn. App. LEXIS 294, 2005-WL
1217590, at *12 (Tenn. Ct. App. W.S., filed May 19,
2005) (citing Brown v. W. Ry. of Ala., 338 U.S. 294,
296, 70 S. Ct. 105, 94 L. Ed. 100 (1949)).
The United States Supreme Court has held that a
jury verdict in a FELA case is entitled to great
weight on appeal. See Biddle v. Norfolk S. Ry. Co.,
No. E1999-025840-COA-R3-CV, 2000 Tenn. Arp.
LEXTS 560, 2000 WL 1185575, at *6 (Tenn. Ct. App.
E.S., filed August 22, 2000); Gentry v. Norfolk S. Ry.
Co., No. 03A01-9610-CV-00341, 1997 Tenn. App.
LEXIS 505, 1997 WL 406377, at *3 (Tenn. Ct. App.
E.S, filed July 22, 1997). “Only when there is a
complete absence of probative facts to support the
conclusion reached (by the jury) does a reversible
85a
error appear.” Dennis v. Denver & Rio Grande W.
R.R. Co., 375 U.S. 208, 210, 84 S. Ct. 291, 11 L. Ed.
2d 256 (1963) (qucting Lavender v. Kurn, ‘327 U.S.
645, 653, 66 S. Ct. 740, 90 L. Ed. 916 (1946)). Thus,
where Railroad challenges the sufficiency of the
evidence to support an aspect of the jury’s verdict, we
may not re-weigh the evidence or assess the
credibility of witnesses in reaching a conclusion
contrary to the verdict. Lavender, 327 U.S. at 652-53.
Our “function is exhausted when [the verdict’s]
evidentiary basis becomes apparent, it being
immaterial that the [reviewing] court might draw a
contrary inference or feel that another conclusion is
more reasonable.” Id. at 653. This is essentially the
standard of review for jury cases under Tennessee
law, pursuant to which we are “required to take the
strongest legitimate view of all the evidence in favor
of the verdict, to assume the truth of all [evidence]
that tends to support [the verdict], allowing all
reasonable inferences to sustain the verdict, and to
discard all [evidence] to the contrary.” Forrester uv.
Stockstill, 869 S.W.2d 328, 329 (Tenn. 1994) (citation
omitted). In short, we must affirm the jury’s verdict
if there is any material evidence to support it. Jd.
In addition to sufficiency questions, Railroad
challenges the propriety of some of the jury
instructions. Because the substantive law of FELA
cases is federal, jury instructions must correctly
reflect the controlling federal common law. Palmer v.
Norfolk-Southern Ry. Co., No. 03A01-9309-CV-00313,
1994 Tenn. App. LEXTS 162, 1994 WL 111037, at *2
(Tenn. Ct. App. E.S., filed March 30, 1994). The
determination of whether jury instructions are
proper is a question of law to be reviewed by us de
novo with no presumption of correctness. See
86a
Solomon v. First Am. Nat'l Bank, 774 S.W.2d 935,
940 (Tenn. Ct. App. 1989). “Since the instructions are
the sole source of the legal principles needed to guide
the jury’s deliberations, trial courts must give
substantially accurate instructions concerning the
law applicable to the matters at issue.” Ladd uv.
Honda Motor Co., 939 S.W.2d 83, 94 (Tenn. Ct. App.
1996) (citations omitted). However, “[jjury
instructions need not be perfect in every detail.” Id.
We must consider the jury charge as a whole, and we
will not invalidate it if it fairly defines the legal
issues in the case and does not mislead the jury. See
Hunter v. Burke, 958 S.W.2d 751, 756 (Tenn. Ct. App.
1997). The federal courts take a similar approach:
We review jury instructions as a whole
to determine whether they adequately
inform the jury of the _ relevant
considerations and provide a basis in
law for aiding the jury in reaching its
decision. A judgment on a jury verdict
may be vacated when the instructions,
viewed as a whole, were confusing,
misleading, and prejudicial. It is ‘not
error to refuse to give a requested
instruction that correctly states the law,
as long as the instructions actually
given fairly and adequately cover the
material issues.
Jones v. Consolidated Rail Corp., 800 F.2d 590,
592 (6th Cir. 1986) (citations omitted).
Standards of review for the additional issues
raised by Railroad will be discussed as those issues
are reached by us. We address each of Railroad’s five
issues in turn.
87a
IT.
Railroad first argues that the trial court erred
when it directed a verdict for the Employee with
respect to Railroad’s claim that Employee’s suit was
filed outside the FELA’s three-year statute of
limitations. A directed verdict “is appropriate only
when the evidence is susceptible to but one
conclusion.” Alexander v. Armentrout, 24 S.W.3d 267,
271 (Tenn. 2000). In reviewing whether a trial court
acted properly in directing a verdict, we must “take
the strongest legitimate view of the evidence
favoring” the party against whom the verdict was
granted. Id. (quoting Long v. Mattingly, 797 S.W.2d
889, 892 (Tenn. Ct. App. 1990)). If reasonable minds
could differ as to the conclusions to be drawn from
the evidence presented, a directed verdict is not
appropriate.
Employee was diagnosed with toxic
encephalopathy and asbestosis on May 24, 2000; he
filed suit on January 10, 2002, less than two years
later and well within the three-year statute of
limitations. However, as Railroad rightly points out,
the test for statute of limitations purposes is not
necessarily whether a formal diagnosis has occurred.
The statute begins to run as soon as the injured
party is “in possession of the critical facts” necessary
to discover that a potential cause of action exists -
namely, “that he has been hurt and who has inflicted
the injury.” United States v. Kubrick, 444 U.S. 111,
122, 100 S. Ct. 352, 62 L. Ed. 2d 259 (1979). Railroad
also correctly notes that an affirmative duty to
investigate one’s symptoms and their causes arises
when a claimant “should have known” that such an
investigation was needed; in these cases, the statute
of limitations will “start[] to run when a reasonable
88a
person would know enough to prompt a deeper
inquiry[.]” Nemmers v. United States, 795 F.2d 628,
631 (7th Cir. 1986). The question that must be
answered, therefore, is not simply when Employee
was first diagnosed with the subject illnesses, but
when he first knew - or should have known - of the
critical facts: (1) that he had these illnesses, and
(2) that they were caused by Railroad. If he knew or
should have known the critical facts prior to January
10, 1999, then his action is time-barred.
Railroad contends that the trial court sidestepped
this critical timing issue by ruling that the statute of
limitations was equitably tolled because of brain
damage to Employee - allegedly a symptom of his
solvent exposure - during the period when the
statute might otherwise have run. Although it is
unclear to us whether the trial court was invoking
“equitable tolling” or was simply applying the
reasonable-person standard to Employee’s
circumstances, it is true that Employee’s alleged
brain damage was initially the court’s sole stated
rationale for ruling as it did on this point:
[Rlegardless of the cause of this man’s
condition[,] in terms of his memory,
brain functioning, whatever you want to
call his deficit, I think that precludes
the statute of limitations issue that he
knew or should have known of what he
complains of in this lawsuit.
However, the court later cited an additional
rationale for its conclusion that the statute of
limitations had not run on Employee’s claim: namely,
that the quantum of Employee’s pre-1999 knowledge
was insufficient to support a finding that he knew or
89a
should have known the critical facts, regardless of
whether he was suffering brain damage during the
period in question. The court stated:
I have really already ruled that I don’t
believe, given the factual scenario of
this case if nothing else, that somebody
with brain damage could have known or
should have known.
* * *
I remember also that besides my feeling
about it as known or should have
known, that his first symptoms, if I’m
not mistaken, were headache and
bloating. Certainly as I remember the
proof, that was not classic symptoms of
[toxic encephalopathy]. I don’t know
that with this big of a disputed and
complicated diagnosis that any of us
would have known that bloating and
headaches could be a problem. If my
recollection of the proof is correct, [and]
I stand to be corrected, thats what I’m
going to rule on that.
Railroad’s attorney did not take up the trial
judge’s offer to “correct(]” her “recollection of the
proof” - probably because the court's recollection was
accurate, as will be seen.
We believe this second rationale for the trial
court’s conclusion on the statute of limitations issue
is more convincing than the “brain damage”
rationale. Accordingly, we decline to address
Railroad’s arguments with respect to the trial court’s
“brain damage” theory, since the lower court’s ruling
90a
will stand so long as the second theory is adequately
supported. We “will affirm a decree correct in result,
but rendered upon different, incomplete, or
erroneous grounds.” Continental Cas. Co. v. Smith,
720 S.W.2d 48, 50 (Tenn. 1986). See also Shutt v.
Blount, 194 Tenn. 1, 249 S.W.2d 904, 907 (Tenn.
1952) (“if the Trial Judge reached the right result for
the wrong reason, there is no reversible error”).
As the trial court noted, the only evidence
presented by Railroad that might be seen as tending
to establish both “critical facts” - Employee’s claimed
illnesses and their purportedly work-related cause -
relates to two particular symptoms: headaches and
bloating. Yet although there was evidence that
Employee had these symptoms prior to 1999 and
suspected that they might be work-related, no
evidence was presented that they were work-related,
i.e., that they actually resulted from Employee’s
exposure to solvents or asbestos, or that they are in
fact symptoms of Employee’s encephalopathy or
asbestosis. Indeed, Employee’s doctor, Michael Kelly,
while under cross examination by Railroad’s counsel,
conceded that the headaches were not a symptom of
solvent exposure:
Q: Mr. Hensley told you he has constant
headaches.
A: He does have headaches.
Q: And I think you'll agree with me that
headaches are not a symptom of - a
chronic symptom of exposure _ to
solvents.
A: You wouldn’t expect them to be,
correct.
9la
Further, as Employee notes in his brief, “No
witness testified that the bloating was the result of
chemicals at all.” In its reply brief, Railroad does not
contest this point, and appears to concede the
“headaches” issue, describing Employee's “belief of a
link” between headaches and solvent exposure as
“incorrect.” This is crucial, because Railroad’s
argument relies heavily upon testimony that
Employee was urged by fellow employees and by his
wife to see a “poison doctor” for his headaches and
bloating. There is no evidence that anyone urged
Employee to see a “poison doctor” about his other,
ultimately more relevant symptoms (e.g., dizzy
spells, cognitive problems, shortness of breath), nor
is there any other evidence to suggest that Employee
knew or should have known that those symptoms
were work-related. Railroad’s argument
fundamentally rests upon the notion that Employee
knew or should have known that his headaches and
bloating were work-related - even though, according
to this record, they were not.
Railroad says this is immaterial. “It matters not
whether Plaintiff was correct in his belief that the
headaches were caused by solvents,” Railroad argues
in its brief. “The legal issue is whether his belief
raised a duty to investigate, thus triggering the
running of the statute of limitations.” We disagree
with this logic insofar as it appears to suggest that
knowledge of any purportedly work-related symptom
- even if ultimately proven non-work-related and, in
any event, irrelevant to the claims at issue - gives
rise to a general duty to investigate one’s physical
condition, which in turn causes the statute of
limitations to run with regard to any and all
unknown work-related injuries that may happen to
92a
exist contemporaneously with the known, non work-
related injury. This seems to us the necessary
implication of Railroad’s argument, and we cannot
accept it. Contrary to Railroad’s contention, we hold
that it does matter whether the condition that a
plaintiff is under a duty to investigate is the same
condition that he is seeking damages for. The duty to
investigate is, at least broadly speaking, condition-
specific. A defendant cannot rely on a plaintiffs prior
erroneous belief that a different, unrelated condition
was work-related in order to retroactively trigger the
statute of limitations on the far more serious
condition that the plaintiff ultimately discovers and
for which he sues.
If Employee were suing for damages caused by
his headaches and bloating, his action might well be
time-barred; certainly under that scenario a fact
issue for the jury would have been created. However,
he is not suing for “headaches and bloating,” but
rather for damages caused by toxic encephalopathy
and asbestosis. There is absolutely no evidence
linking his headaches or bloating to these conditions,
nor any evidence suggesting that his pre-1999
knowledge of actual encephalopathy and asbestosis
symptoms - such as cognitive problems and shortness
of breath - was coupled with knowledge sufficient to
put him on notice of a connection between those
symptoms and his work for Railroad. Nor do we
believe that the evidence presented regarding
Employee’s encephalopathy and asbestosis symptoms
could have given rise to a reasonable inference that
such constructive notice existed. Perhaps a jury
could conclude that Employee had a vague suspicion
of his injuries and their causes, but we agree with
the Supreme Court of Virginia that “[a]n employee’s
93a
mere suspicion of an injury or its probable cau: e,
standing alone, is not the operative standard for
determining when a cause of action accrues under
FELA.” Gay v. Norfolk & W. Ry. Co., 253 Va. 212,
483 S.E.2d 216, 217 (Va. 1997) (emphasis added).
For all of these reasons, we conclude that a directed
verdict in Employee’s favor on this issue was proper.
Simply stated, Railroad did not present the evidence
needed to establish a statute of limitations defense,
and thus there was no factual dispute to be resolved
by a jury.
Ill.
A
Railroad’s second argument is that the judgment
must be reversed because the jury instructions and
verdict form created a “double standard” between, on
the one hand, the levels of negligence and causation
that Employee was required to prove, and, on the
other hand, the levels of comparative negligence and
causation that Railroad was required to prove.
Railroad asserts that such inconsistency was
declared improper by the United States Supreme
Court in Norfolk S. Ry. Co. v. Sorrell, 549 U.S. 158,
127 S. Ct. 799, 166 L. Ed. 2d 638 (2007), a case that
was decided after the judgment below but before this
appeal.
The judge instructed the jury, in pertinent part,
as follows:
In this action Mr. Hensley has the
burden of _ establishing by a
preponderance of the evidence all the
facts necessary to prove the following
issues: Was CSX negligent, even in the
94a
slightest; and did that negligence cause
injury to Mr. Hensley; and what
damages, if any, is he entitled to.
The defendant, CSX has the burden of
establishing by a preponderance of the
evidence all of the facts necessary to
prove the following issues: was Mr.
Hensley negligent, and did_ that
negligence contribute to his injuries.
* * *
If a carrier such as CSX Transportation
was negligent and its negligence was a
cause in whole or in part of Mr.
Hensley’s injuries, CSX Transportation
is liable in damages, although CSX
Transportation’s negligence was not the
sole cause of the injuries and although
the negligence of a third person may
have contributed in equal, greater, or
lesser degree in causing injury.
In deciding this case you must
determine the fault, if any, of each of
the parties. If you find more than one of
the parties at fault, you will then
compare the fault of the parties. To do
this you will need to know the definition
of fault. CSX is at fault if you find that
CSX was negligent, even tn the slightest,
and that the negligence was a legal
cause of injury to Mr. Hensley. The
plaintiff, Mr. Hensley, is a[t] fault if you
find that he was negligent and that
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negligence was a legal cause of his
injury.
* * *
If you find that CSX was negligent, even
in the slightest, and/or Mr{[.] Hensley
was negligent and that this negligence
was a legal cause of the injury or
damages for which a claim is made, you
have found that party to be at fault.
(Emphasis added.) In addition, the verdict form
stated as follows:
1. Do you believe from the evidence that
CSX was negligent, even the slightest,
and such negligence was a cause, in
whole or in part, of the asbestosis the
Plaintiff claims?
YES NO
2. Do you believe from the evidence that
CSX was negligent, even the slightest,
and such negligence was a cause, in
whole or tin_ part, of the _ toxic
encephalopathy the Plaintiff claims?
YES NO
If you check “NO” to both numbers I &
2, please return to the courtroom.
3. Do you believe from the evidence that
Mr. Hensley was negligent and such
negligence was a cause of his claimed
[injuries?]
96a
(Emphasis in paragraphs 1, 2, and 3 added; other
emphasis in original).
Railroad argues that these instructions and the
jury verdict form are improper under Sorrell, a case
that arose out of Missouri litigation under FELA in
which the instructions stated that the employee is
contributorily negligent if his negligence “directly
contributed to cause” the injury, Sorrell, 127 S. Ct. at
803, while the railroad is judged by whether its
negligence “contributed in whole or in part” to the
injury. Id. at 814. The Supreme Court invalidated
that instruction, saying it was based on an incorrect
reading of FELA, and declared that “the same
standard of causation applies to railroad negligence
under Section 1 fof FELA] as to plaintiff contributory
negligence under Section 3.” Id. at 808.
The parties take contrary positions with respect
to Sorreii’s applicability to various aspects of this
case, including whether the standards of not just
causation, but also negligence (i.e., breach), must be
equal. For the sake of argument only, we will assume
that Railroad is correct and that the instructions and
verdict form in the instant case are improper under
Sorrell. Railroad still loses this issue because it
explicitly conceded the correctness of the trial court’s
jury instruction on the issue at hand, thereby
inviting any error that the trial court may have
committed.
B
“Tenn. R. Civ. P. 51.02 provides that a party may
seek a new trial because of an inaccurate instruction,
even if it did not object to the instruction at trial.”
Grandstaff v. Hawks, 36 S.W.3d 482, 489 (Tenn. Ct.
App. 2000). In the instant case, Railroad cited both
97a
the jury instructions and the verdict form’ in its
motion for a new trial.” However, Railroad cannot
claim the protection of Rule 51.02, because Railroad
did not merely fail to object at trial to the
instructions and form; it affirmatively acquiesced in
them, explicitly asserting that they were legally
correct. The transcript clearly demonstrates this fact:
[EMPLOYEE’S COUNSEL]: I handed
you what really is the verdict - one of
the proposed verdict forms, and my
point was that the - as to causation, I
looked at our causation instructions and
the causation instruction I think just
' We note that, although a party’s failure to object is
nonfatal with regard to erroneous instructions, omissions from
jury instructions must be objected to, or the issue is waived.
Rule v. Empire Gas Corp., 563 S.W.2d 551, 553 (Tenn. 1978). In
addition, errors or omissions in a verdict form are waived
unless objected to at trial. Keith v. Murfreesboro Livestock
Market, Inc., 780 S.W.2d 751, 759 (Tenn. Ct. App. 1989).
However, as will be seen, we hold that Railroad invited error
with regard to all of the disputed instructions and the verdict
form. Thus, we need not decide whether the purported problems
with the instructions are properly characterized as errors or as
omissions, nor whether Railroad’s objection to other aspects of
the verdict form, coupled with its offer of an alternative verdict
form that did not contain the language disputed here, is
sufficient to establish that Railroad raised the verdict-form
issue.
* Railroad’s motion objects specifically to the
inconsistent negligence standards. The motion makes no
specific comment on the inconsistent causation standards.
Employee contends that the motion raises only the negligence
issue, not the causation issue. As will be seen, we need not
decide this question, as we find that both issues were conceded
notwithstanding the motion for a new trial.
98a
needs to be added in whole or in part
under - under the claim of negligence,
whenever there’s a reference to cause, it
just should be comma, in whole in or
part. Because under FELA law, unlike
regular negligence actions, the law is in
whole or in part.
[RAILROAD’S COUNSEL:] I agree with
that, Your Honor.
* * *
[EMPLOYEE’S COUNSEL:] And its
negligence was a cause, in whole or in
part. And, really, the theme throughout
all the instructions, whenever the
question is about cause or causation,
should just be that same _ entry
throughout that and that would satisfy
the causation aspect of the case.
THE COURT: Okay.
[EMPLOYEE’S COUNSEL:] The other
issue that I think we raised yesterday,
Your Honor, I think we're [i.e.,
Employee and Railroad] probably in
agreement on this as well. It relates to
the negligence standard.
THE COURT: Okay.
[EMPLOYEE’S COUNSEL:] It’s the
same type of situation under FELA. It’s
negligence, comma, even the slightest,
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comma. Because under the FELA law
the burden or the standard is much less
than the _ regular negligence, _ so
whenever Your Honor gives instructions
on negligence, it’s even the slightest
negligence.
THE COURT: Okay.
[EMPLOYEE’S COUNSEL:] I think
we're in agreement on that, aren’t we,
Randy [Railroad’s counsel]?
([RAILROAD’S COUNSEL:] Yeah, I’m
fine with that, Your Honor. I don’t like
it, but it’s the law.
[EMPLOYEE’S COUNSEL:] It’s
amazing. I like it when lawyers know
the law. And Randy, obviously, has
handled enough of these railroad cases
that [he knows] that’s the law and we’re
stuck with it.
* *
[EMPLOYEE’S COUNSEL:] [IJf Your
Honor does decide to give the
comparative negligence [instruction] .. .
the “in whole or in part” part for the
railroad doesn’t apply to Mr. Hensley.
THE COURT: Correct.
[(EMPLOYEE’S COUNSEL:] That’s only
for the railroad.
100a
THE COURT: That’s why I just added
on on the top one, the Plaintiff, was
CSX negligent in whole or in part and
did that negligence cause injury.
[EMPLOYEE’S COUNSEL:] Actually,
the negligence is even in the slightest,
the causation is in whole or in part.
THE COURT: I'm sorry. All right.
[EMPLOYEE’S COUNSEL:] It’s
complicated. It took me several years to
figure this thing out.
THE COURT: Even in the slightest?
[EMPLOYEE’S COUNSEL] Even in the
slightest.
THE COURT [addressing Railroad’s
counsel]: Is that - I understand you
don’t like it, but is that all right with
you?
[RAILROAD’S COUNSEL:] It makes me
a little ill every time I hear it, but that’s
where we are, Judge.
THE COURT: Okay.
(Emphasis added.)
Although Railroad could have overcome a mere
failure to object to purportedly’ erroneous
instructions by taking issue with them in its motion
for a new trial, its concessions at trial constitute
“invited error,” which is not so easy to overcome. As
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this court noted in Knoxville Cmty. Dev. Corp. v.
Bailey, No. E2004-01659-COA-R3-CV, 2005 Tenn.
App. LEXIS 359, 2005 WL 1457750, at *5 (Tenn. Ct.
App. E.S., filed June 21, 2005), invited error is
separate and distinct from mere failure to object
under Rule 51.02. We pointed out in Bailey that the
Tennessee Supreme Court held in a 1937 case -
admittedly before the adoption of Rule 51.02 - that
the rule of invited error applies to jury instructions.
Gentry v. Betty Lou Bakeries, 171 Tenn. 20, 100
S.W.2d 230, 231 (Tenn. 1937). That statement of law
was reiterated in a post-Rule 51.02 case, Roseberry v.
Lippner, 574 S.W.2d 726, 729 (Tenn. 1978), in which
the Supreme Court held that an erroneous jury
instruction “was invited error, and plaintiff will not
be heard to complain on appeal of error which she
induced the Court to commit.” But the clearest and
most directly applicable analysis of the interplay
between invited error and Rule 51.02 comes from
Haddock v. Lummus Cotton Gin Co., 552 S.W.2d
390, 391 (Tenn. Ct. App. 1976), in which this court
refused to consider a plaintiffs argument against the
validity of an instruction about which he had stated
at trial, “The Plaintiff does not object to the
instructions as given. We don’t think it prejudices
the Plaintiffs case.... I have no objection to the
charge.” The Court of Appeals, after quoting Rule
51.02, stated:
Admittedly, if Plaintiff had made no
comment on the portion of the charge
complained of on this appeal, under
51.02 he could assign error to any
portion of the charge in this Court.
However, since the Plaintiff took
affirmative action by asking for
102a
permission to amend his theory of the
case to conform to the charge of the
Court and approved the charge, we hold
that Plaintiffs assignment of error in
this Court is not authorized by 7.R.C.P.
§1.02.
The situation is analogous to a party
assigning error te a charge which he
had requested. After the jury’s verdict,
it was too late to question the
correctness of the charge.
It is, therefore, unnecessary to discuss
the cases cited and relied upon by
Appellant relating to the correctness of
the charge complained of.
Id. at 392. The facts of Haddock are directly on
point with the facts in the instant case. Like the
plaintiff in Haddock, the defendant here, Railroad,
“took affirmative action” by explicitly acquiescing to
both the disputed instructions and the verdict form.
By saying “I agree with that” and “I don’t like it, but
it’s the law” and “[iJt makes me a little ill every time
I hear it, but that’s where we are,” Railroad, in the
words of the Haddock court, “approved the
charge[s].” After losing the case, Railroad attempted
to “unring the bell” in its motion for a new trial, but
it was too late. It invited the very error of which it
now complains.
C.
Admittedly, the issues of invited error and waiver
are complicated by the intervening precedent of
103a
Sorrell. When the United States Supreme Court
“applies a rule of federal law to the parties before it,
that rule is the controlling interpretation of federal
law and must be given full retroactive effect in all
cases still open on direct review and as to all events,
regardless of whether such events predate or
postdate our announcement of the rule.” Harper uv.
Va. Dept. of Taxation, 509 U.S. 86, 97, 113 S. Ct.
2510, 125 L. Ed. 2d 74 (1993). This principle of
retroactivity could be weakened by strict application
of the rule prohibiting litigants from appealing errors
that they invited, or did not object to, at trial, where
the error was not apparent prior to the Supreme
Court ruling. Such a holding would risk encouraging
a flood of frivolous trial objections, since it would
create a powerful incentive for attorneys to raise
every currently invalid objection that could
conceivably be vindicated by an unexpected Supreme
Court ruling months or years in the future. On the
other hand, completely eviscerating the doctrines of
waiver and invited error’ in all cases wherein the law
changes during the pendency of an appeal would
undermine the important purposes of those
* Waiver and invited error are, as just noted, two
distinct legal doctrines. Waiver is applicable to verdict forms
and jury-instruction omissions, but inapplicable to erroneous
instructions; invited error is applicable to all of the above.
However, both doctrines involve situations where a litigant has
failed to preserve an issue for appeal, whether through action
(inviting error by acquiescing in a decision) or through inaction
(waiving an issue by failing to object to a decision). Thus, for
purposes of determining whether an intervening change in
precedent excuses a litigant’s failure to preserve an issue, there
is little difference between waiver and invited error; the latter
is, for these purposes, essentially just an enhanced version of
the former.
104a
doctrines. This latter point was implicitly recognized
by the Tennessee Supreme Court in McIntyre v.
Balentine, 833 S.W.2d 52 (Tenn. 1992), the landmark
case that replaced contributory negligence with
comparative negligence in Tennessee. The High
Court declared that “[t]he principles set forth today
apply to (1) all cases tried or retried after the date of
this opinion, and (2) all cases on appeal in which the
comparative fault issue has been raised at an
appropriate stage in the litigation.” Id. at 58
(emphasis added). In other words, parties who had
not objected at trial to the all-or-nothing contributory
negligence scheme were out of luck - even though
that scheme was undoubtedly thought to be “the law”
when their cases were tried.
Although the court in McIntyre did not
specifically explain its reasoning with regard to
retroactivity, it is likely that the court was cognizant
of the fact that a raging debate about the merits of
comparative versus contributory negligence had been
ongoing well before the decision in McIntyre, and
Tennessee was one of only a handful of states still
using the traditional all-or-nothing approach until
McIntyre brought Tennessee into line with the
majority of other jurisdictions. In other words, it
could not be said that the ruling was a complete
surprise. Although contributory negligence remained
the law until McIntyre, it was widely known that a
change might be coming. Indeed, the court had put
everyone on notice of a possible change fifteen years
earlier by stating, “We do not deem it appropriate to
consider making such a change [from contributory to
comparative negligence] unless and until a case
reaches us wherein the pleadings and proof present
an issue of contributory negligence accompanied by
105a
advocacy that the ends of justice will be served by
adopting the rule of comparative negligence.” Street
v. Calvert, 541 S.W.2d 576, 586 (Tenn. 1976). The
Supreme Court quoted this language in McIntyre and
stated, “Such a case is now before us.” 833 S.W.2d at
56. It seems fair, therefore, that the court limited the
ruling’s retroactivity to those cases where the issue
had been raised at trial. In essence, this approach
strikes a balance between the important purposes
served by retroactivity, on the one hand, and waiver
or invited error, on the other.
Such a balancing approach was championed by
Judge Richard A. Posner of the United States Court
of Appeals for the Seventh Circuit when he declared
that “[a] party should be allowed to take advantage
of a decision rendered during the pendency of his
case, even if he had not reserved the point decided, if
the decision could not reasonably have _ been
anticipated.” McKnight v. Gen. Motors Corp., 908
F.2d 104, 108 (7th Cir. 1990) (emphasis added). That
last point, we think, is crucial. Closing the door on
waived arguments only where the intervening
change in precedent “could . .. reasonably have been
anticipated” respects and adheres to the spirit of
both of the competing legal principles, requiring
parties to raise all pertinent or potentially pertinent
issues at trial but declining to penalize them for
failing to raise issues whose resolution in their favor
was totally unforeseeable. Moreover, with respect to
Judge Posner’s expressed fear that universal
application of the waiver doctrine “would induce
parties to drown the trial judge with reservations,”
Id., his “could not reasonably have been anticipated”
rule is philosophically consistent with Rule 11 of
both the federal and Tennessee Rules of Civil
106a
Procedure, which prohibit attorneys from making a
representation to the court unless “the claims,
defenses, and other legal contentions therein are
warranted by existing law or by a nonfrivolous
argument for the extension, modification, or reversal
of existing law or the establishment of new law.”
Tenn. R. Civ. P. 11.02(2) (2007) (emphasis added); see
also Fed R. Civ. P. 11(6)(2). The McKnight rule
avoids creating incentive for attorneys to make
arguments that are “frivolous” when raised, but
penalizes them for failing to make “nonfrivolous”
arguments for changes to the law where such
changes could reasonably have been anticipated.
D.
This analysis brings us, of course, to the question
of whether the changes wrought by Sorrell could
reasonably have been anticipated by Railroad. The
answer, we think, is clearly yes. In fact, we can goa
step further and say that the changes were
anticipated. After all, as noted earlier, Railroad
complained about the very question at issue here in
its motion for a new trial. That motion was filed on
October 27, 2006, more than two months before the
Sorrell decision was announced. The law did not
change during the 29 days between the above-quoted
discussion - in which Railroad’s attorney said of the
disputed instructions, “I don’t like it, but it’s the law”
- and the filing of Railroad’s motion for a new trial,
which argued that the instructions were “erroneous
statements of the law” that “set[] up a clear double
standard.”
A brief timeline of events will help clarify
matters. On May 15, 2006, the United States
Supreme Court announced that certiorari had been
eae”
ahs
107a
granted by the Court in the Sorrell case to address
the following question: “Whether the court below
erred in determining that the causation standard for
railroad negligence under the Federal Employers
Liability Act (‘FELA’) differs from the causation
standard for employee contributory negligence.”
Norfolk Southern Ry. Co. v. Sorrell, 547 U. S. 1127,
126 S. Ct. 2018, 2018, 164 L. Ed. 2d 778 (2006)
(Mem.); 2005 U.S. Briefs 746, Brief of Petitioner
(U.S. S. Ct. Briefs 2006). At that time, the pre-trial
phase of the instant case was well underway.
More than three months after the Supreme Court
agreed to hear Sorrell, Railroad in the instant case
submitted its proposed jury instructions, which
included equivalent standards of causation in Charge
No. 13, and also its proposed verdict form, which
included equivalent standards of negligence and
causation. The trial below began on September 12,
2006.
On September 27, the trial court, in the course of
scheduling a discussion of the proposed jury
instructions for the following morning, stated:
Well, I mean, [Railroad] may not object
{to Employee’s proposed instructions]. I
mean, they may realize that’s the case
law. I don’t know the case law that well
and I want yall to make certain there’s
not error there.
(Emphasis added.) As can be seen, the trial judge
admitted being somewhat unfamiliar with the
relevant case law and thus wanted to ensure that
both parties had ample opportunity to raise and
argue any legal objections they might have to the
court’s proposed instructions. Yet the next day,
108a
September 28, when given that opportunity,
Railroad’s attorney conceded the _ instructions’
legality, as already noted. He said, “I agree with” the
causation instructions on the verdict form; he further
stated, “I’m fine with [the negligence standard in the
jury instructions] . . . I don’t like it, but it’s the law”;
and he admitted that the divergent standards for
negligence and contributory negligence “makes me a
little ill every time I hear it, but that’s where we are,
Judge.”
The following morning, September 29, shortly
before charging the jury, the trial court asked the
parties, “Is there any other part of the charge ... Is
there anything else you all saw that you didn’t
like[?]” Railroad’s attorney responded that Railroad
was satisfied with the instructions, “[wlith some
exceptions that we want to make probably after the
charge is given about the Court’s failure to give some
things that we talked about.” The court - clearly
wanting to settle any important issues before giving
the charge - replied, “Besides the fear of cancer
charge, is there anything else in particular that you
are unhappy about?” Railroad’s attorney responded
by asking the court to alter an instruction relating to
foreseeability, but said nothing about the negligence
and causation “double standard.” At no point did
Railroad indicate that it was “particular[ly]
unhappy” about that issue, nor indeed that it was
“unhappy” at all. The court subsequently charged the
jury with the now-disputed instructions and gave the
jury the now-disputed verdict form. When Railroad
made its promised exceptions, shortly after the jury
was charged, it did not except to the court’s refusal to
give the jury its Charge No. 13, the proposed
instruction that would have provided for a uniform
109a
causation standard. Railroad did except to the
court’s refusal to use the more detailed verdict form
that Railroad had submitted, but this exception
appears to have been based on other grounds
(specifically, the “fact of disease” issue that we will
address in the next section of this opinion). In sum,
during the time period between Railroad’s concession
and the end of the trial, the record shows no
indication that Railroad ever told the court it had
changed its mind about the previously conceded
legality of the now-disputed instructions and verdict-
form language.
The jury returned its verdict later that day,
September 29. The court’s judgment was entered on
October 2. Approximately one month later, on
October 27, Railroad filed its motion for a new trial.
It stated, as one of 16 reasons why a new trial should
be granted, that “[t]he Court erroneously charged the
jury on the standard of care to utilize in assessing
the negligence of [Railroad], and then compounded
the error by 1) articulating a separate and different
standard of care for assessment of Plaintiffs
negligence and 2)emphasizing the errors’ by
restating them on the jury verdict form.” The
memorandum in support of the motion elaborates on
this claim, asserting that the jury was presented
with a “clear double standard.” Railroad argued in its
memorandum as follows:
In short, the Court’s charge presents a
relaxed “even in_ the - slightest”
negligence standard for defendant
[Railroad] but a normal _ pure
“negligence” standard for the Plaintiff.
110a
[Railroad] respectfully submits both
aspects of the charge are erroneous
statements of the law and clearly
prejudicial.
(Emphasis added.) It is worth reiterating that,
exactly one month earlier, Railroad’s attorney had
said of the very instruction at issue, “I don’t like it,
but it’s the law.” No United States Supreme Court
opinion was released during the intervening month
that could have converted the instruction’s contents
from “the law” into “erroneous statements of the
law.” Rather, it seems that Railroad simply changed
its mind. In any event, Railroad’s motion for a new
trial cites, among other cases, Page v. St. Louis
Southwestern Ry. Co., 349 F.2d 820 (5th Cir. 1965)
in support of its contention that the previously
agreed-to instructions were in fact erroneous.
Railroad described Page as “a clear ruling that the
standard of negligence for employee and employer is
the same under FELA.” This citation is significant
because, when Sorrell was decided 75 days later, the
majority opinion referred to Page as “(t]he most
thoughtful treatment” of the issue, and essentially
adopted Page’s reasoning.
The Supreme Court released its Sorrell opinion
on January 10, 2007. Less than two weeks later, on
January 23, the trial court in the instant case
rejected Railroad’s motion for a new trial. The court
noted the brand-new Sorrell opinion, stating that
Railroad had “supplemented [its] argument” by
bringing the case to the court’s attention. However,
the trial court stated that “{a] review of the case does
not change the Court’s opinion as to. the
appropriateness of the charge.” The court then
llla
essentially cited a waiver or invited error theory in
support of its decision, noting, “The Court held
several jury charge/verdict for[m] conferences with
counsel before the charge was communicated to the
”
Jury.
Railroad filed its notice of appeal on February 9,
2007. Railroad now argues that the trial court should
have used Railroad’s proposed instructions, and that,
although Railroad subsequently agreed to the
instructions that the court used instead, Sorrell so
fundamentally changed the law that it is unfair to
hold Railroad to the normal rules of waiver and
invited error. Yet under the test already articulated -
whether the change in the law “could . . . reasonably
have been anticipated” - it is abundantly clear that
Railroad cannot now claim the benefit of Sorrell after
having so explicitly disavowed its legal
underpinnings at trial.
E.
Railroad’s briefs are strikingly inconsistent in
their characterization of Sorrell’s impact on the law
and, by implication, the foreseeability of the High
Court’s ruling in that case. On the one hand,
Railroad states that Sorrell “confirmed what most
courts had already held - that railroads and
employees should be subject to equivalent causation
standards in determining negligence[.]” (Emphasis
added.) Later, Railroad asserts that Sorrell “resolved
a long-running split of authority[.]” Yet Railroad goes
on to assert that it “should not now be penalized in
this appeal because at trial it followed then-
prevailing law on the standard of causation and
negligence for railroad FELA liability.” (Emphasis
added). Railroad adds that it “could not have invited
112a
error because the trial court’s ruling was consistent
with the governing law at the time of trial.”
(Emphasis added). Needless to say, the notion that
Railroad reasonably relied upon settled, “governing,”
“then-prevailing” pre-Sorrell law, which Sorrell then
unexpectedly overturned, is difficult to square with
the assertion that Sorrell “confirmed what most
courts had already held.” In addition, it is difficult to
understand how Railroad can now rely on the jury
instructions that it submitted at trial, before Sorrell,
as being the proper application of post-Sorrell law,
yet contend that its acquiescence at trial to the
court’s instructions should be disregarded because
Sorrell so drastically and unexpectedly changed the
law. If that is the case, why did Railroad submit
legally unsupportable instructions? Railroad cannot
have it both ways.
The bottom line is this: Railroad was given ample
opportunity to argue that its submitted instructions
were proper under existing law, including Page and
the various other cases that represent, in Railroad’s
words, “what most courts had already held” before
Sorrell. Presented with this opportunity to convince
the trial court of its position, Railroad instead chose -
despite having submitted instructions that it claims
are now proper - to concede the point, explicitly
declaring the court’s instructions legally correct. The
trial court, which had previously told the attorneys
that “I don’t know the case law that well and I want
yall to make certain there’s not error there,”
understandably saw no need to pursue this
particular issue further. After all, Railroad had
conceded the point, and there were many other
contested issues to resolve in this complex case. Yet
now, having invited the result that it now describes
113a
as error, Railroad seeks to revive the issue. This it
cannot do. We will not allow Railroad to change its
position on appeal after specifically conceding the
point in question because of a supposedly drastic
change in the law that Railroad should have
anticipated, and indeed did anticipate (albeit
inconsistently). The propriety of negligence and
causation instructions that impose a “double
standard” on plaintiffs and defendants under FELA
was an unresolved legal issue that Railroad needed
to preserve at trial if it wished to assert error on
appeal, and Railroad failed to do so. Therefore, we do
not reach the substantive merits of the claim.‘
IV.
Railroad’s third issue requires a much shorter
discussion. Railroad claims that the verdict form
improperly presupposes the fact of Employee’s
claimed diseases, toxic encephalopathy and
asbestosis. We quote again from the first two
questions on the form, with a different emphasis this
time:
1. Do you believe from the evidence that
CSX was negligent, even the slightest,
and such negligence was a cause, in
whole or in part, of the asbestosis the
Plaintiff claims
YES NO
* We emphasize again that our opinion does not
presuppose anything about the outcome of this issue if Railroad
had properly preserved it. We simply do not decide that point
because Railroad’s invited error pretermits it.
1l4a
2. Do you believe from the evidence that
CSX was negligent, even the slightest,
and such megligemce was a cause, in
whole or in part, of the toxic
encephalopathy the Plaintiff claims
YES NO
(Emphasis added.) Railroad argues that the court
erred by consolidating the issue of whether Plaintiff
has the diseases in with the question of whether
Railroad negligently caused those alleged diseases.
This is in contrast to Railroad’s proposed verdict
form, which begins with the questions, “Do you find
from a preponderance of the evidence that the
Plaintiff suffers from toxic encephalopathy?” and “Do
you find from a preponderance of the evidence that
the Plaintiff suffers from asbestosis?” Only then does
it proceed to ask about negligence and causation.
Railroad contends that the court’s approach
“effectively and erroneously granted Plaintiff a
directed verdict on this issue[.)”
We disagree. The necessary first step in
answering the questions posed by the verdict form is
to decide whether Employee's claims of disease are
proven by the evidence. This necessity is implied by
the form’s language and by common sense, and
nothing in the court’s language suggests otherwise.
The form does not predetermine the question of
whether Employee has the diseases; it states only
that Employee has made a “claim,” not that the
claim is true. Merriam-Webster defines the verb “to
claim” as meaning “to assert especially with
conviction and in the face of possible contradiction or
doubt.” Webster’s Third New International Dictionary
115a
414 (1993). Railroad certainly did try to contradict
the claims. Indeed, in its closing argument, Railroad
argued as follows:
He doesn’t have asbestosis, the disease
he has sued CSX for, therefore he can’t
win that part of this case.
Now, you can dispose of the asbestos
piece of this case pretty quickly once
you get back in the jury room. You elect
a foreperson. One thing you can do is
say, all right, let’s take a vote. Let’s take
a quick vote. Do we believe Mr. Hensley
has asbestosis or not. If all of you say
no, then you're done. You can start
talking about solvents.
This is just one example. Both parties made clear,
throughout the trial and in closing arguments, that
whether Employee suffered from the diseases in
question was very much a disputed issue. We see no
reason to imagine that the jury was confused about
the nature of its duty to determine the facts on these
crucial issues, especially given how vigorously each
side argued them.
In summary, the verdict form states that
Employee claims to have the diseases in question,
and asks the jury to make an overall determination
of whether he is entitled to a verdict in his favor on
these claims. Certainly, the court could have broken
these questions down into their component parts, but
it was not obligated to do so, and its decision to use a
more succinct form did no harm to anyone. If the
answer to either question (or both) had been “no,” we
might have been left wondering whether the jury had
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concluded that the disease did not exist, or rather
that it existed but the Railroad was not responsible
for it. But the jury answered “yes,” which leaves no
doubt about what facts they found. It is implausible
to suppose that the jury believed Railroad was the
negligent cause of a nonexistent disease. In any
event, it is reasonable to assume the jury knew the
meaning of the word “claim,” and, as such, we find no
error here.
V.
In its fourth issue, Railroad argues that
Employee’s evidence of a compensable “fear of
cancer” failed to meet the requirement of Norfolk &
W. Ry. Co. v. Ayers, 538 Us. 135, 157, 123 S. Ct.
1210, 155 L. Ed. 2d 261 (2003), that it be “genuine
and serious,” and that the trial court erred by failing
to instruct the jury on that standard. We will
address the second point first, as it is more easily
dispensed with.
The Court in Ayers held that a complainant with
asbestosis can recover damages under FELA for fear
of cancer when that fear “stems from a current
injury,” id. at 159, with the “important reservation”
that “[i]Jt is incumbent upon such a complainant...
to prove that his alleged fear is genuine and serious.”
Id. at 157. However, the Court declined to go further,
specifically limiting its holding to the above-stated
narrow issue. As the Missouri Court of Appeals
explained in Hedgecorth v. Union Pac. R.R. Co., 210
S.W.3d 220, 228-29 (Mo. Ct. App. 2006), “Ayers does
not require ... instructions detailing or explaining
damages based on a fear of developing cancer... .
[T]he Court in Ayers did not discuss or authorize jury
instructions on this issue, but merely ruled on
117a
substantive law.” We agree with this analysis of
Ayers. Railroad does not point us to any other cases
containing a requirement that the Ayers test or a
similar standard be communicated to the jury, nor
have we found any. We suspect this is because such a
requirement would make little sense.
One purpose of the “genuine and_ serious”
requirement, we believe, is to protect defendants
from excessive verdicts based on appeals to jurors’
passions with respect to the deeply emotional issue
of cancer. Because the mere suggestion of a
possibility of cancer has the potential to evoke raw
emotions, a juror may be swayed by the barest shred
of evidence that a defendant has caused a plaintiff to
suffer an increased risk and/or fear of cancer, and
may be tempted to overcompensate the plaintiff for
such a risk or fear. In light of this reality, little if any
purpose would be served by instructing the jury that
the plaintiffs fear must be “genuine and serious.”
Juries do not routinely grant multimillion-dollar
awards for injuries that the jurors regard as non-
genuine or unserious. Any juror who might be
predisposed to grant a large award based on shaky
evidence of a fear of cancer is unlikely to be swayed
by the language of Ayers. Rather, it is for the courts
to serve as gatekeepers in this regard, to ensure that
fear of cancer claims do not go to the jury unless
there is credible evidence of a “genuine and serious”
fear.
That brings us back to the question of whether
Employee introduced sufficient evidence to support a
fear of cancer claim under Ayers. We find that he did.
Railroad does not dispute the well-established link
between asbestosis and an increased risk of cancer.
However, as Railroad correctly notes, establishing
118a
that increased risk is not enough; Employee must
also prove that he had a genuine and serious fear of
cancer. On this point, Railroad makes much of
Employee’s testimony that he has “some concern”
over getting cancer “in the back of my mind,” like “a
little cloud” hanging over his head. Railroad
compares this testimony to the evidence in Seaford v.
Norfolk S. Ry. Co., 824 N.E.2d 94, 111-12, 159 Ohio
App. 3d 374, 2004 Ohio 6849 (Ohio Ct. App. 2004),
reud on other grounds, 106 Ohio St. 3d 430, 2005
Ohio 5407, 835 N.E.2d 717 (Ohio 2005), wherein the
plaintiff was denied fear-of-cancer damages under
the Ayers test because there was no evidence beyond
a single, vague statement of “worry” and “concern.”
However, in the instant case, vague statements of
concern do not represent the full extent of
Employee’s testimony. He also testified that he
experiences “anxiety” - a term referenced in Seaford,
in contrast to mere “worry” and “concern,” as part of
the dictionary definition of fear: “the general term for
the anxiety and agitation felt at the presence of
danger.” 824 N.E.2d at 112 (quoting Webster’s New
World Dictionary). Employee also testified that he
takes Xanax for his anxiety, in part because of his
fear of cancer:
Q: For your anxiety, why did [Dr. Perry]
give [Xanax] to you? What kind of
anxiety do you have that you have to
take medicine for?
A: Well, I just feel like, you know, my
chest - I get tightness in my chest and
can’t - I smother and I sit and worry. I
think about - you know, this asbestos in
my lungs, it’s apt to cause - i don’t say
119a
I’ve got it, but it’s apt to cause cancer of
the lungs.
Railroad asserts that “[t]his testimony ... was
subsequently impeached on _ cross-examination,”
when Employee testified that he began taking Xanax
before being diagnosed with asbestosis. Yet that fact
does not necessarily preclude a jury finding that at
least part of the reason Employee has continued to
take Xanax is because of his fear of cancer. Such a
finding would be a reasonable inference that a jury
could justifiably make from the evidence presented.
Similarly, Dr. Perry’s testimony that he does not
know the cause of Employee’s anxiety does not, as a
matter of law, establish that no jury could possibly
conclude that fear of cancer was one of the causes.
Railroad’s assertion that “there is no evidence that
[Employee’s] use of medication was in any way
related to a concern about getting cancer” is s
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