CSX TRANSPORTATION, INC. VS. BEGLEY (JOHN X.)Annotate this Case
RENDERED: AUGUST 8, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
CSX TRANSPORTATION, INC.
APPEAL FROM PERRY CIRCUIT COURT
HONORABLE WILLIAM ENGLE, III, JUDGE
ACTION NO. 03-CI-00184
JOHN X. BEGLEY
** ** ** ** **
BEFORE: DIXON, LAMBERT, AND STUMBO, JUDGES.
DIXON, JUDGE: CSX Transportation, Inc., appeals from a judgment of the Perry
Circuit Court following a jury verdict awarding damages to CSX’s former
employee, John X. Begley, pursuant to the Federal Employers’ Liability Act, 45
U.S.C. §§ 51-60 (hereinafter “FELA”).
Begley, who was born in 1942, began working for CSX at its railroad
yard in Hazard, Kentucky, in June 1970. For twenty years, Begley’s job duties
required him to jump out of slow-moving train cars, landing on the large gravel, or
ballast, surrounding the tracks.1 Begley retired from CSX in 1998, and thereafter
sought treatment for pain in his knees, hips, and back. In March 2003, Begley filed
suit against CSX pursuant to FELA, alleging CSX failed to provide a safe working
environment, which caused Begley to develop debilitating osteoarthritis in his
knees and hips. Following a lengthy discovery period, a jury trial commenced on
April 9, 2007.
Begley testified at trial and called several witnesses, including his
treating physician, Dr. James Chaney, and Tyler Kress, Ph.D., an engineering
expert. CSX called several witnesses, including Dr. Robert Love, an orthopedic
surgeon, who had performed two independent medical examinations of Begley.
The four-day trial concluded on April 16, 2007. The jury returned a
verdict awarding Begley $250,000.00 for pain and suffering, but also assessed
Begley’s comparative fault at 50%. Accordingly, the trial court entered judgment
in favor of Begley for the sum of $125,000.00. CSX moved for judgment
notwithstanding the verdict, or alternatively, a new trial. The court denied the
post-trial motions, and this appeal followed.
FELA states that, “[e]very common carrier by railroad . . . shall be
liable in damages to any person suffering injury while he is employed by such
carrier . . . for such injury . . . resulting in whole or in part from the negligence of 
CSX discontinued the requirement of dismounting moving trains in 1990.
the . . . carrier.” 45 U.S.C. § 51. In Hamilton v. CSX Transp., Inc., 208 S.W.3d
272, 275 (Ky. App. 2006), a panel of this Court addressed FELA:
What constitutes ‘negligence’ under FELA ‘is a federal
question, not varying in accordance with the differing
conceptions of negligence applicable under state and
local laws for other purposes. Federal decisional law
formulating and applying the concept governs.’ Urie v.
Thompson, 337 U.S. 163, 174, 69 S.Ct. 1018, 1027, 93 L.
Ed. 1282 (1949). It is well-established that FELA
plaintiffs have a lower standard of proof than plaintiffs in
ordinary negligence cases. See Harbin v. Burlington
Northern R. Co., 921 F.2d 129, 131 (7th Cir.1990). A
key difference between a statutory FELA action and a
common law negligence action is that in order to satisfy
the causation element in a FELA action, a plaintiff need
only show that the employer ‘in whole or in part’ caused
his or her injury. Rogers v. Missouri Pacific R. Co., 352
U.S. 500, 507, 77 S.Ct. 443, 449, 1 L.Ed.2d 493 (1957).
The United States Supreme Court has specifically
described the FELA plaintiff's burden as follows: ‘Under
this statute, the test of a jury case is simply whether the
proofs justify with reason the conclusion that employer
negligence played any part, even the slightest, in
producing the injury or death for which damages are
sought.’ Id., 352 U.S. at 506, 77 S.Ct. at 448.
Accordingly, FELA actions are ‘significantly different’
from the ordinary negligence claim. Id., 352 U.S. at 50910, 77 S.Ct. at 450.
On appeal, CSX alleges that Begley’s causation evidence was
insufficient and that the trial court erroneously failed to instruct the jury on several
issues. After thoroughly reviewing the record before us, we disagree.
I. Causation Evidence
CSX first argues that Dr. Chaney’s medical causation testimony was
inadmissible pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and Kentucky Rules of Evidence
702. However, this argument was not raised before the trial court; consequently,
we decline to address it here. Skaggs v. Assad, 712 S.W.2d 947, 950 (Ky. 1986).
CSX alternatively argues it was entitled to a directed verdict because
Dr. Chaney’s testimony was insufficient to submit the case to the jury. As the
basis for its argument, CSX opines that Dr. Chaney’s testimony as to medical
causation was rendered unreliable on cross-examination when Dr. Chaney
conceded that he was unaware the practice of dismounting moving trains was
abandoned in 1990, eight years before Begley retired. CSX contends Dr. Chaney’s
erroneous assumption as to duration of exposure precludes a finding of causation.
After reviewing the record, it is clear that Dr. Chaney believed
Begley’s occupation contributed to his condition. Although his testimony was
inconsistent on cross-examination, Dr. Chaney reiterated that mounting and
dismounting the moving train cars contributed to Begley’s osteoarthritis, “a
degenerative, progressive illness.” Despite CSX’s complaints, it was within the
province of the jury to weigh the credibility of Dr. Chaney’s testimony.
Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991).
Furthermore, contrary to CSX’s assertion, we do not perceive this
case as so complex that specialized medical testimony, other than that offered by
Dr. Chaney, was required for the jury to infer a causal connection between
dismounting moving trains and Begley’s degenerative osteoarthritis. See Ulfik v.
Metro-North Commuter R.R., 77 F.3d 54, 59-60 (2nd Cir. 1996) (“[T]he trier of
fact could reasonably determine, without expert testimony, that prolonged
exposure to paint fumes would cause headache, nausea, and dizziness.”).
Likewise, the jury also heard scientific testimony from Tyler Kress, Ph.D.,
regarding the risks of dismounting moving trains and the potential for cumulative
“‘The burden of the employee is met, and the obligation of the
employer to pay damages arises, when there is proof, even though entirely
circumstantial, from which the jury may with reason make that inference.’” Booth
v. CSX Transp., Inc., 211 S.W.3d 81, 85 (Ky. App. 2006) (quoting Rogers, 352
U.S. at 508, 77 S.Ct. 443, 449). In the case at bar, sufficient evidence was
submitted for the jury to infer causation. We conclude the trial court did not err by
denying CSX’s motion for a directed verdict.
II. Jury Instructions
“Alleged errors regarding jury instructions are considered questions of
law that we examine under a de novo standard of review. Instructions must be
based upon the evidence and they must properly and intelligibly state the law.”
Hamilton, 208 S.W.3d at 275 (citations and quotation marks omitted.).
A. Proximate Cause
CSX argues that the trial court erred by refusing to give the jury a
proximate cause instruction. This argument is without merit.
In Hamilton, supra, a panel of this Court acknowledged that the
United States Supreme Court’s decision in Rogers, supra, “depart[ed] from
traditional common-law tests of proximate causation.” Hamilton, 208 S.W.3d at
278. We reiterate that Rogers enunciated the relaxed standard for a FELA claim:
“Under this statute the test of a jury case is simply whether the proofs justify with
reason the conclusion that employer negligence played any part, even the slightest,
in producing the injury or death for which damages are sought.” Rogers, 352 U.S.
at 506, 77 S.Ct. at 448 (emphasis added); Hamilton, 208 S.W.3d at 275. CSX
urges us to revisit our decision in Hamilton, supra, pursuant to the concurring
opinion in a recent United States Supreme Court decision, Norfolk Southern Ry.
Co. v. Sorrell, 549 U.S. 158, 127 S.Ct. 799, 66 L.Ed.2d 638 (2007). However, we
are not persuaded by CSX’s reliance on the concurring opinion in Sorrell.
Consequently, we decline to revisit Hamilton, and we conclude the trial court
properly denied CSX’s requested instruction on proximate causation.
CSX next argues that the trial court erred when it refused to give the
jury a separate foreseeability instruction. CSX points out “that reasonable
foreseeability of harm is an essential ingredient of [FELA] negligence.” Gallick v.
Baltimore & Ohio R. R. Co., 372 U.S. 108, 117, 83 S.Ct. 659, 665, 9 L.Ed.2d 618
(1963). While we agree with CSX that foreseeability is a necessary component of
any negligence case, we conclude the trial court adequately instructed the jury
without issuing a separate foreseeability instruction.
“If the statements of law contained in the instructions are substantially
correct, they will not be condemned as prejudicial unless they are calculated to
mislead the jury.” Hamilton, 208 S.W.3d at 275 (citation and quotation marks
omitted). Here, instruction number five advised the jury as to CSX’s duty of care
and stated in part: “This duty included the duty to guard against risks or dangers of
which it knew, or by the exercise of ordinary care should have known.” We
conclude the “knew” and “should have known” language was accurate and
sufficiently advised the jury as to foreseeability of harm. The trial court did not
C. Taxation of Damages
CSX contends the trial court committed reversible error by refusing to
instruct the jury that an award of damages is non-taxable. CSX relies on Norfolk
& W. Ry. Co. v. Liepelt, 444 U.S. 490, 100 S.Ct. 755, 62 L.Ed.2d 689 (1980),
where the Court found it was reversible error to refuse a non-taxable instruction in
a wrongful death case under FELA. Id. at 498, 100 S.Ct. at 759. While there are
factual differences between Liepelt and the case at bar, the Court’s holding is clear:
We hold that it was error to refuse the requested
instruction in this case. That instruction was brief and
could be easily understood. It would not complicate the
trial by making additional qualifying or supplemental
instructions necessary. It would not be prejudicial to
either party, but would merely eliminate an area of doubt
or speculation that might have an improper impact on the
computation of the amount of damages.
Id., 100 S.Ct. at 759-60.
CSX contends that, pursuant to Liepelt, it is entitled to a new trial on
damages. Begley, however, contends the omission of the non-taxable instruction
was not prejudicial to CSX and constituted harmless error. See Kentucky Rules of
Civil Procedure (CR) 61.01. Begley points out that, although he sought
$500,000.00 in damages, the jury awarded $250,000.00 and apportioned Begley’s
comparative fault at 50%. Furthermore, we find instructive an Eighth Circuit
Court of Appeals opinion which suggested that “the prejudicial effect of a failure
to give a nontaxability instruction should be decided on the existence of evidence
that the jury did, in fact, operate under a false impression of the tax laws.”
Flanigan v. Burlington Northern Inc., 632 F.2d 880 (8th Cir. 1980) (citation
omitted). The record in this case fails to reveal evidence that the jury inflated the
award of damages to compensate for income taxes. Consequently, we find CSX
suffered no prejudice, and we conclude the error was harmless.
D. Duty to Mitigate
Next, CSX claims the trial court committed reversible error by failing
to instruct the jury as to Begley’s duty to mitigate his damages. CSX cites Jones v.
Consolidated Rail Corp., 800 F.2d 590 (6th Cir. 1986), where the Court
“acknowledge[d] the well-established rule that an injured plaintiff has a duty to
mitigate his damages.” Id. at 593 (citation omitted). However, the Court went on
to state that, “we see no reason, and defendant has presented us with no reason, to
create in FELA cases an exception to the general rule that the defendant has the
burden of proving that the plaintiff could, with reasonable effort, have mitigated
his damages.” Id. at 594 (emphasis added).
Here, CSX claims that Begley failed to follow reasonable medical
advice to undergo knee and hip replacement surgery and lose weight. Curiously, in
its appellate brief, CSX failed to cite any specific evidence in the record supporting
its assertions. CR 76.12(4)(c)(v). After reviewing the record, we find no evidence
to support an instruction that Begley unreasonably failed to mitigate his damages.
Accordingly, the court did not err by refusing to instruct the jury on mitigation.
E. Reduction of Damages to Present Value
Finally, CSX contends the court erroneously refused to instruct the
jury that damages for future pain and suffering must be reduced to present value.
CSX relies on Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 536-37, 103
S.Ct. 2541, 2550, 76 L.Ed.2d 768 (1983), where the Court stated:
It has been settled since our decision in Chesapeake &
Ohio R. Co. v. Kelly, 241 U.S. 485, 36 S.Ct. 630, 60 L.
Ed. 1117 (1916) that ‘in all cases where it is reasonable
to suppose that interest may safely be earned upon the
amount that is awarded, the ascertained future benefits
ought to be discounted in the making up of the award.’
Id., at 490, 36 S.Ct., at 632.
However, Begley argues that CSX construes Pfeifer too broadly, as
that case specifically addressed the proper method for valuating the “impaired
earning capacity” of a disabled worker. Id. at 533, 103. S.Ct. at 2548. Indeed,
Kelly, supra, cited by the Pfeifer Court, addressed valuating the “deprivation of
future benefits” to the decedent’s family. Kelly, 241 U.S. at 491, 36 S.Ct. at 632.
In Paducah Area Public Library v. Terry, 655 S.W.2d 19 (Ky. App.
1983), an automobile negligence case, this Court discussed valuation of future
damages. Id. at 24. This Court stated:
We are well aware of the rule, almost universally applied,
in Federal Employers' Liability cases, (45 U.S.C. § 51 et
seq. (1981)), and Jones Act cases, (46 U.S.C. § 688
(1979)), that awards for future loss of income must be
reduced to their present worth. Evidence is received with
this objective in mind. The defendant, if plaintiff fails to
do so, may adduce his own proof on present value by
direct evidence or by cross-examination. The jury is
instructed that their award shall be in present worth, but
the present worth rule does not apply to any award for
pain and suffering.
Id. (emphasis added), citing Louisville & Nashville R.R. Co. v. Gayle, 204 Ky. 142,
263 S.W. 763 (Ky. 1924), and Kelly, supra. Furthermore, in O'Byrne v. St. Louis
Southwestern Ry. Co., 632 F.2d 1285, 1286 (5th Cir. 1980), the Court stated,
“while awards for future earnings and medical expenses should be reduced to
present value, damages for future pain and suffering should not.” Finally, in
Flanigan, 632 F.2d at 886, the Eighth Circuit concluded a present value instruction
as to pain and suffering was inappropriate. The Court held:
The same amount of pain and suffering does not occur
from year to year nor can the degree of pain and suffering
that will occur in any year be quantified with any degree
of certainty. Requiring the reduction of an award for pain
and suffering to its present value would improperly allow
a jury to infer that pain and suffering can be reduced to a
precise arithmetic calculation.
Id.; See also Taylor v. Denver & Rio Grande Western R.R., 438 F.2d 351, 352-53
(10th Cir. 1971).
Based upon the foregoing, we conclude CSX was not entitled to a
present value instruction. Accordingly, the trial court did not err in refusing the
instruction tendered by CSX.
For the reasons stated herein, the judgment of the Perry Circuit Court
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
James W. Turner
James E. Cleveland, III
Alexander C. Ward
Huntington, West Virginia
Alva A. Hollon, Jr.
John O. Hollon
Thomas I. Eckert