Kelham v. CSX Transportation, Inc., No. 16-1544 (7th Cir. 2016)

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Kelham, a railroad engineer, halted a mile-long freight train on a parallel track to enable a higher-priority train to pass. Another train, also ordered to wait on the parallel track, failed to stop at a signal and collided with Kelham’s train, causing Kelham’s locomotive to lurch forward slightly. Kelham testified that he had just begun to walk down the stairs to the locomotive’s bathroom and that the lurch caused him to fall down the stairs, injuring his back and aggravating a condition that he had called “spondylitic spondylolisthesis,” the forward slippage of a vertebra, which had previously been asymptomatic but afterward required surgery. The railroad’s experts testified that the “lurch” would have been slight and would not have caused a forward fall; the train conductor sitting with Kelham in the cab did not see him fall. For days after the accident Kelham told no one that he had fallen, nor did he have any visible injuries. The Seventh Circuit affirmed the jury’s rejection of Kelham’s claims under the Federal Employers’ Liability Act, 45 U.S.C. 51. The trial judge correctly rejected Kelham’s objections to admitting the evidence about his history of back problems and statements from the depositions of his doctors. It was not unreasonable for a jury to find that Kelham had fabricated the claim and that the railroad’s negligence had no causal relation to his injuries.

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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 16 1544 CHANCE T. KELHAM, Plaintiff Appellant, v. CSX TRANSPORTATION, INC., Defendant Appellee. ____________________ Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 2:12 cv 00316 — Andrew P. Rodovich, Magistrate Judge. ____________________ ARGUED SEPTEMBER 22, 2016 — DECIDED OCTOBER 27, 2016 ____________________ Before BAUER, POSNER, and MANION, Circuit Judges. POSNER, Circuit Judge. The plaintiff, Chance Kelham, a railroad engineer, sued the railroad that employed him, ac cusing it of having negligently caused him to be injured, for which he seeks compensation under the Federal Employers’ Liability Act, 45 U.S.C. §§ 51 et seq. The case was tried to a jury, which exonerated the railroad, precipitating this ap peal. 2 No. 16 1544 On the day of the accident that Kelham claims caused his injury, he was driving a mile long freight train comprised of two locomotives and 69 empty cars. Ordered to halt the train briefly on a parallel track to enable a train with a higher pri ority to pass it, Kelham duly halted his train. Unfortunately another train, which was also supposed to wait on the paral lel track, failed to stop at a red stop signal and collided with Kelham’s train from behind. Because of the length of his train and the weight of its locomotive (212 tons), the collision caused the locomotive to lurch forward slightly. A mechani cal engineer testifying for the railroad compared what a for ward facing video camera attached to the front of Kelham’s locomotive showed to what was shown by a video camera attached to another locomotive of the same make and model. That locomotive was placed in the same location on the tracks as the locomotive of Kelham’s train when it had be gun its lurch, and was then moved slowly forward so that the video from its camera could be compared with the video from the camera attached to the front of Kelham’s locomo tive. The comparison indicated that the lurch forward could not have exceeded seven or eight inches, or lasted more than a third of a second—numbers that the engineer testified in dicated that the train had accelerated as a result of the colli sion at an average of 13.5 feet per second squared. Kelham complains that the engineer compared the two videos by eye rather than by mathematical calculations, didn’t measure the height of the camera on the comparison locomotive, and didn’t account for the “bounce and shud der” movement of the train. But the trial judge correctly ruled that these objections could be adequately explored on cross examination. No. 16 1544 3 Kelham’s claim that the locomotive “bounced” vertically is implausible given the locomotive’s weight and the slight ness of the lurch, and while he points to testimony from Knipp, the other conductor in the cab at the time of the acci dent, that the locomotive “bounced … back and forth,” that isn’t the same as bouncing up and down. Kelham also claims that the “bounce and shudder” are visible in the video of the accident, but CSX’s expert, who watched the video, disa greed, and the jurors were shown the video at trial and could decide for themselves. The jury rejected Kelham’s challenges to the railroad’s testimony, awarding judgment to the railroad. The railroad concedes that the accident was caused by the negligence of its employees—the crew of the second train who ran the red light; the issue is whether the lurch re sulting from the impact of the second train when it collided with Kelham’s train caused the injuries of which he com plains. He testified that when the lurch occurred he’d just risen from his seat in the locomotive cab and begun to walk down the three stairs to the locomotive’s bathroom. The stairwell faced forward, so someone walking down the stairs would be facing the front of the train. Kelham claims that as he began to walk down, the lurch from the impact caused him to fall forward—almost indeed to somersault—down the stairs, causing a serious injury to his back which aggra vated a condition that he had called “spondylitic spondylo listhesis”—the forward slippage of a vertebra—which had been asymptomatic before the accident but afterward re quired surgery. A biomechanical engineer testified for the railroad that the forward lurch of the locomotive should have pushed 4 No. 16 1544 Kelham backward rather than forward, since he was facing the front of the train at the time of the accident. If you’re sit ting in the back seat of a taxi stopped for a traffic light, then when the light changes and the cab surges ahead you’ll feel yourself pushed against the back of your seat, while if the taxi was moving and then slowed or stopped you would feel yourself pushed forward, toward the divider between the front and rear seats. The engineer further testified that if the lurch had pushed Kelham backward without causing him to hit the back wall of the locomotive cab, it would have been too weak to injure him. In addition the train conductor sit ting next to Kelham in the locomotive cab did not see him fall when the locomotive lurched. And for days after the ac cident he told no one that he’d fallen, even though he spent a good deal of that time with coworkers, supervisors, and medical personnel. Nor had he any bruises or any other visi ble injuries from the fall, even though he testified that at the end of the somersault his back and neck were against a bulkhead door and his feet were over his head. He argued that the biomechanical engineer had ignored the “bounce and shudder” and assumed he’d been positioned upright at the time of the accident, while he claims that he was learning forward, that the studies cited by the engineer of how people who are standing on a platform react when the platform moves don’t apply to someone who is walking down stairs, as Kelham claims he was, and that the engineer did not cite studies on the aggravation of spondylitic spondylolisthesis specifically—but again the trial judge correctly ruled that Kelham’s objections could be explored on cross examination, and the jury didn’t have to believe him. There is no question that Kelham has serious back pain, but the railroad presented evidence that the pain preexisted No. 16 1544 5 the forward lurch of his train. Indeed he’d begun complain ing of back pain in 2007, four and a half years before the col lision, and the pain had worsened over time. An MRI on Oc tober 5, 2009 revealed a herniated disc and a bulging disc, along with the spondylitic spondylolisthesis. On the recom mendation of an orthopedic surgeon he was given a “nerve root block” (a strong anesthetic) a week later and in the fol lowing months received epidural steroid injections from a pain management specialist. A few weeks after the nerve root block he complained of pain and obtained prescriptions for morphine and Vicodin—opioid pain medications—and had continued to receive and fill prescriptions for the drugs up until the time of the accident, including five times in the five months immediately preceding it. His back pain persisted after the accident, eventually leading him to have surgery; we say “persisted” because by his own admission it was similar to the pain that he had ex perienced and taken opioids to alleviate before the accident. Indeed he told medical staff—repeatedly—that he was seek ing treatment for symptoms that he’d been experiencing for years. And indeed the surgery he had was for the same back pain for which he’d taken opioids before the accident. His post accident surgeon conceded in a deposition that “sur gery was an option for [Kelham]” before the accident, and that he would defer to CSX’s expert on whether the lurch could have caused Kelham’s post accident symptoms. And Kelham’s pre accident doctor conceded in a deposition that the spondylitic spondylolisthesis, which Kelham claims be came symptomatic only after the accident, could have been responsible for some of his pre accident symptoms. Indeed it would be a miracle had those symptoms vanished right be fore the lurch (they couldn’t have vanished a significant time 6 No. 16 1544 before it as otherwise he would have stopped taking the opioids, which are dangerous medicines), only to recur—the identical symptoms—as a consequence of the lurch. And the trial judge correctly rejected Kelham’s objections to admit ting the evidence about his history of back problems and the unfavorable statements from the depositions of his pre and post accident doctors. After the surgery he was advised to undergo physical therapy, which his medical records indicate that he did but only intermittently, and though he has only modest func tional limitations, which would not prevent him from work ing in some capacity for a railroad, he has declined to seek reemployment in the railroad industry. It was not unreason able for a jury to find that Kelham had fabricated the claim that he was injured by the lurch, as unless the railroad bought his story it would not be required by the Federal Employers’ Liability Act to compensate Kelham for the cost of the surgery that he needed to repair the consequences of pre accident ailments for which the railroad was not respon sible. The jury was entitled to conclude that the negligence of the railroad that resulted in the collision and ensuing lurch had no causal relation to his injuries—that, to repeat, the injuries were the product of ailments that preceded the lurch. AFFIRMED

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