Jury award of $19.3 million in Cumulative Trauma Claim is Vacated Due to Failure to Allow Jury To Apportion Damages to "Other Factors"
The Court of Special Appeals, in CSX Transportation, Inc. v Richard Bickerstaff1, held that the lower court's failure to allow the jury to apportion damages based upon non-negligent factors was a prejudicial error that resulted in a vacated judgment.
This case arose from injuries suffered by nine different employees as a result of working for defendant CSX Transportation Inc. The plaintiffs successfully alleged at trial that their injuries, mostly knee, were a result of their employment with CSX. More specifically, CSX improperly placed mainline ballast (large pieces of rock) in areas which the plaintiffs walked, crouched, kneeled, and crawled while performing their duties.
After trial, a jury awarded a total of $19.3 million to the injured employees. This amount was reached by determining the percentage of fault attributed to both CSX and the plaintiffs and apportioning the damages accordingly.
Following the verdict, CSX appealed to the Court of Special Appeals to Maryland on numerous evidentiary grounds. The relevant issue, vacating the award and remanding the case back to the lower court, was CSX's contention that the trial court erroneously refused to allow the jury to apportion the plaintiffs' damages based upon other causes.
At trial, CSX requested three separate instructions on apportionment and proposed a verdict sheet that allowed the jury to assign liability (of plaintiffs') injuries to other factors in addition to CSX's negligence and plaintiff's contributory negligence. One such instruction, which was refused by the court, ordered the jury to determine, if they found a pre-existing condition, to determine how much of the plaintiff's injury was due to the pre-existing condition(s) and how much was a result of CSX's aggravation of their pre-existing conditions.
The proper measure of damages, according to the Supreme Court, under FELA is "federal in character" and therefore, "a matter governed by federal law". A plaintiff's injury or illness may result from multiple causes including, employer's negligence, the plaintiff's contributory negligence, third-party negligence, and non-negligent causes. FELA recognizes the doctrine of contributory damages and provides a diminution of damages in cases in which the plaintiff's negligence contributed to their own injuries. When a case involves third-party negligence, the employee can still recover the full amount of damages by the employer and the employer may bring a separate indemnification and contribution action upon the joint tortfeasor.
There has been a long line of FELA case law in which courts permitted the apportionment of damages for non-negligent causes. For example, in Lancaster v. Norfolk & W. Ry. Co., 773 F.2d 807 (7th Cir. 1985), the court acknowledged that apportionment was proper in FELA cases when the "tort victim is highly vulnerable to injury and the damages he suffered must therefore be discounted by the probability but for had he lived a normal life. Also, in Evans v. United Arab Shipping Co., 790 F. Supp. 516 (D.N.J.1992), the court stated that when an employer's negligence aggravated a preexisting condition the defendant must compensate the plaintiff only for the aggravation itself and not for a preexisting condition. Therefore, FELA has allowed apportionment of damages for non-negligent causes of the employee's injuries.
More applicable to this case however, have been recent appellate cases establishing that FELA permits the jury to apportion damages when the employee's damages were caused by the employer and a non-negligent factor. Nichols v. Burlington N. & Santa Fe Ry. Co. 148 P.3d 212 (Colo.Ct.App.2006) asserted that the jury should be instructed that if it finds for the plaintiff on the issue of liability, it should award damages only for the aggravation of the plaintiff's preexisting condition where sufficient evidence exists to indicate an injury may have resulted from the aggravation of a pre-existing injury.
Perhaps the closest case on point is Meyer, a case in the Superior Court of Pennsylvania (865 A.2d 868). In Meyer the Court held that the trial court erred in its refusal to charge the jury on the principle of apportionment of damages when the appellee had a preexisting degenerative disc condition. The railroad contended that because its experts testified at trial that the disc injury could have been caused by a preexisting condition, the railroad was entitled to charge the jury on apportionment of damages. The Court, in Meyer, concluded that because the jury instruction did not allow apportionment (aside from contributory negligence) and did not mention a pre-existing condition as a possible cause for the injury then it found a reversible error for the omission of such basic and fundamental material in the jury instruction.
In this case the defendant, CSX, introduced expert testimony establishing the possibility that plaintiffs' prior medical conditions and other factors played a role in the injuries they claimed to have suffered while working for CSX. The Court then turned to the issue whether there was sufficient evidence introduced at trial to support a request for apportionment instructions. The court in Meyer concluded that a defendant does not need to produce an exact percentage to a specific certainty but is only required to produce some evidence to support its proposed apportionment instruction. Therefore, CSX was required to show this Court that it had introduced some evidence at trial tending to establish the need for an apportionment instruction.
At trial, CSX solicited expert testimony that set forth major risk factors for the types of knee injuries suffered by the plaintiffs. The factors, according to the expert, include (but are not limited to), obesity, age, heredity, genetic factors, acute trauma or acute injury. The expert explained, in great detail, how each of the risk factors possibly could contribute to the type of injuries suffered by the plaintiff. Age, for example, is a risk factor because as people get older they tend to develop arthritic changes because of increased stress on the joints. Another factor included obesity which, the expert testified, increases the stress on a person's joints. Finally, (although not an exhaustive list) the expert testified that repetitive or cumulative trauma results from increased and constant pressure on a joint.
Having examined the evidence, presented by CSX's expert testimony, the Court then decided whether it was "enough" evidence to warrant an apportionment instruction. First, all the plaintiffs shared the risk factor of repetitive or cumulative trauma in performing the duties of their job. Also, age was a shared risk factor because all plaintiffs were over 50 years of age and the evidence presented at trial showed that more than 30 percent of men over 55 years old have problems of the knees similar to the plaintiffs. An expert, in the area of orthopedic surgery, testified to each of the plaintiffs' individual conditions that may pose a risk factor. This Court found that CSX's evidence was sufficient to warrant a proper jury instruction to apportion damages based upon the non-negligent causes.
The Court ultimately determined that the trial court committed prejudicial error in its charge to the jury on the apportionment of damages. Accordingly, because the trial court refused to allow the jury to consider non-negligent factors in apportioning damages, the judgment was vacated and case remanded for a new trial on damages.
- CSX Transportation, Inc. v. Bickerstaff, et al., -- A.2d ---, 2009 WL 2619691 (Md. App.) Notice: This opinion has not been released for publication in the permanent law reports. Until released, it is subject to revision or withdrawal.
Gordon, Elias & Seely, L.L.P., represents clients in all aspects of personal injury and wrongful death. They are a boutique law firm with a nationwide practice focusing on FELA, Jones Act-Admiralty-Maritime Law and the associated Jones Act Blog and Trucking Accident Litigation. Gordon, Elias & Seely, L.L.P., was formed in 2000. Attorneys Steve Gordon and R. Todd Elias bring over 39 years of combined experience to the representation of their clients. The firm has the experience and resources to pursue recovery from large corporate defendants and/or their insurers.