CSX TRANSPORTATION, INC. V. JOHN X. BEGLEY
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RENDERED: MAY 20, 2010
TO BE PUBLISHED
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2008-SC-000643-DG
CSX TRANSPORTATION, INC.
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APPELLANT
ON REVIEW FROM COURT OF APPEALS
CASE NO . 2007-CA-001380-MR
PERRY CIRCUIT COURT NO. 03-CI-00184
JOHN X. BEGLEY
APPELLEE
OPINION OF THE COURT
AFFIRMING
This appeal concerns an action filed by John X. Begley under the Federal
Employers Liability Act (FELA) . 1 Begley claimed that he developed
osteoarthritis in his knees and hips due to his work for CSX Transportation,
Inc . as a brakeman/conductor . The Court of Appeals affirmed a Perry Circuit
Court judgment that awarded Begley damages following a favorable jury
verdict. We granted CSX's motion for discretionary review to consider whether
the Court of Appeals erred by affirming the trial court's refusal to give tendered
instructions concerning proximate cause, foreseeability of harm, non-taxability
of damages, and reduction of damages to present value. Having considered the
1 45 U.S .C . §§ 51-60 .
evidence and the parties' arguments, we conclude that the trial court erred in
some respects but committed no error that compels reversal.
Begley was born in 1942 . He worked for CSX from 1970 to 1998, when
he retired due in part to hip and knee pain that he had experienced since the
mid-1990s . Physicians attributed his symptoms to osteoarthritis, a
degenerative condition . During the initial twenty years of Begley's twentyeight-year employment, his job required him to jump from slow-moving trains
onto coarse gravel along the tracks, to perform various activities, and then to
get back on the trains . The maneuvers were known as moving mounts and
dismounts . He stated that he performed them anywhere from five to twenty
times per day on trains that were moving at five to six miles per hour and
sometimes faster. CSX discontinued the practice in 1990.
Begley filed this FELA action in 2003 . He alleged that CSX failed to
provide a safe work environment and that work-related cumulative trauma
contributed to causing his arthritic condition. The claim sought damages only
for past and future pain and suffering.
Dr. Chaney, a family physician, diagnosed and treated Begley for severe
osteoarthritis in his knees and hips. He informed Begley early in 2003 that the
condition was work-related. Dr. Chaney described the condition as a
degenerative process that occurs with aging but is accelerated by factors such
as obesity and repetitive trauma. He opined that the practice of mounting and
dismounting trains that were traveling at five to six miles per hour accelerated
the arthritic process, contributing to the development of Begley's osteoarthritis .
Informed on cross-examination that the practice ended in 1990, he responded
affirmatively to statements by defense counsel that the practice could not
accelerate anything for which he treated Begley in 1997 and 1998 and that he
could no longer "make this causation relationship ." He testified on re-direct,
however, that the moving mounts and dismounts performed until 1990 were "a
contributing factor to [Begley's] osteoarthritis ."
Begley also offered testimony from Tyler Kress, Ph.D ., a safety engineer
who specialized in human biomechanics . Dr . Kress testified that force,
posture, repetition/ frequency, cold, and vibration are risk factors for
microtrauma, which eventually causes tissue damage and produces what is
known as a cumulative trauma or "wear and tear" injury. He stated that
extensive scientific literature, some dating to the 1970s, discussed the risk
factors for such injuries . Dr. Kress characterized as "poor job practice," a
requirement that workers mount and dismount moving equipment from terrain
such as mud or ballast (i.e., coarse gravel), explaining that the practice would
put them at risk for both acute and cumulative trauma injuries.
The defense focused on the issues of negligence and causation. CSX's
former head of safety testified concerning precautions the company took to
prevent injuries to employees. He stated that mounting and dismounting
moving equipment was an industry practice conducted safely at CSX and that
the company led the industry in discontinuing the practice in 1990.
Dr. Love, an orthopedic specialist, concluded from examining Begley
twice that the degenerative condition in his knees and hips was both severe
and disabling but did not result from work-related repetitive trauma or
overuse. He reported that he did "not believe [Begley's] work in any way
contributed to his condition." Dr. Love testified subsequently that he had seen
CSX's training films showing mounts and dismounts . Having done so, he
thought that performing the maneuvers with a slow-moving train was actually
less stressful on the knees and hips from a biomechanical standpoint than
performing them with a stationary train . He considered the maneuvers to be
safe with respect to the risk of knee and hip injuries but to be unsafe with
respect to the risk of foot and ankle injuries. Dr. Love attributed Begley's knee
and hip condition to a natural deterioration of the joints and cartilage due to
age and perhaps also to an autoimmune condition known as ankylosing
spondylitis. He insisted that Begley's work neither caused nor contributed to
his present condition, which would be identical had he never performed a
moving mount or dismount .
CSX tendered instructions at the close of proof concerning proximate
cause, foreseeability of harm, reduction of damages to present value, and nontaxability of damages, all of which the trial court refused. The jury returned a
verdict of $250,000 .00 and apportioned fault equally to CSX and Begley, after
which the trial court entered judgment for Begley in the amount of
125,000 .00. CSX appealed .
I. The Federal Employers' Liability Act
The death and maiming of thousands of interstate railroad workers
during the late 1800s provided the impetus for 45 U.S.C . §§ 51-60, the Federal
Employers' Liability Act ("FELA").2 Congress enacted the FELA in 1908 to
provide a uniform method of compensating injured railroad workers and their
survivors.3 The FELA is not a type of workers' compensation statute and does
not ensure benefits for all work-related injuries .
The FELA bases a cause of action on employer negligence but departs
from common-law tort principles by prohibiting employers from exempting
themselves through contract;4 by eliminating certain common-law tort
defenses, such as the fellow servant rules and assumption of risk;6 and by
limiting the effect of contributory negligence .? Although the FELA authorizes a
federal cause of action, Congress gave state and federal courts concurrent
jurisdiction over FELA claims. The FELA is broad, remedial legislation and is
to be construed liberally in order to accomplish its humanitarian purpose-9
2 See Urie v. Thompson, 337 U.S. 163, 181 (1949) .
3 Brady v Southern R. Co., 320 U.S. 476 (1943) .
4 45 U.S.C. § 55.
5 45 U.S.C. § 51 .
6 45 U.S.C. § 54.
7 45 U .S.C. § 53 states, in pertinent part, as follows :
[T]he 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 .
8 45 U .S .C. § 56 .
Urie v. Thompson, 337 U.S. at 180-81 .
45 U.S .C . § 51 provides, in relevant part:
Every common carrier by railroad while engaging in
commerce . . . shall be liable in damages to any person
suffering injury while he is employed by such carrier
in such commerce . . . 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.
The FELA preempts all state law concerning an interstate railroad's
liability for an employee's death or personal injury due to the railroad's
negligence. 10 Thus, the substantive law that governs a FELA action is federal,
regardless of whether it is brought in state or federal court." Federal
decisional law governs what constitutes negligence in a FELA claim 12 and
requires a plaintiff to prove the traditional common-law elements of negligence,
including duty, breach, foreseeability, causation, and injury in order to
prevail. 13 Federal law also governs the parties' burden of proof on the merits ; 14
the sufficiency of the evidence ; 15 the substantive law required in instructions, 16
to Chicago, M. & St. P. Ry. Co. v. Coogan, 271 U.S . 472 (1926) .
Urie, 337 U.S. at 174 ; Chesapeake & O. Ry. Co. v. Stapleton, 279 U.S. 587, 593
(1929) .
13
14
15
Coogan, 271 U.S. at 474; Adams v. CSX Transportation, Inc., 899 F.2d 536 (6th Cir.
1990).
Central Vermont R. Co. v. White, 238 U.S. 507 (1915) (federal law places burden of
proving contributory negligence on defendant, rendering state rule requiring
plaintiff to prove that he was not guilty of contributory negligence inapplicable to
FELA claim) .
Brady, 320 U.S. at 479 ; Western & Atlantic R.R. v. Hughes, 278 U.S . 496 (1929) ;
Coogan, 271 U.S . at 474.
and the proper measure of damages, 17 including the prohibition against
prejudgment interesti 8 and the requirement that future damages be reduced to
present value19 and measured in after-tax dollars.20
The law of the forum governs procedural matters when a FELA claim is
tried in state court.21 Thus, state and local rules concerning pleading, 22
verdicts, 23 the form of jury instructions, 24 admissibility of evidence,2s
16
17
St. Louis Southwestern Ry. Co. v. Dickerson, 470 U.S . 409 (1985) (error in FELA
action to refuse instruction on present value) ; Norfolk & Western Ry. Co. v. Liepelt,
444 U.S . 490 (1980) (whether error to refuse instruction in FELA action that
damages are exempt from income tax a federal question) .
Chesapeake & O. Ry. Co. v. Kelly, 241 U .S . 485 (1916) (proper measure of damages
a federal question, inseparable from right of action) .
18 Monessen Southwestern Ry. Co. v. Morgan, 486 U.S. 330 (1988) (state court may not
award prejudgment interest in FELA action pursuant to local practice) .
19 Kelly, 241 U.S . at 491 (future payments or other pecuniary benefits should be
awarded based on their present value) .
20 Liepelt, 444 U.S. at 496 (federal law exempts damages received due to personal
injury from income tax) .
21
See White, 238 U.S. at 511 .
22
Brown v. Western Railway ofAlabama, 338 U.S. 294, 296 (1949) (state rule
23
24
25
requiring pleading allegations to be construed most strongly against pleader posed
unnecessary burden on plaintiffs assertion of federal rights) ; Davis v. Wechsler,
263 U.S. 22 (1923) (local practice permitting defendant to unite plea as to
jurisdiction and defense on merits could not defeat assertion of federal right).
Arnold v. Panhandle & Santa Fe Railway Co., 353 U.S . 360 (1957) (error in FELA
claim to apply state law requiring general verdict to yield to inconsistent specific
findings) .
See, e.g., Pryor v. National R.R. Passenger Corp ., 703 N .E.2d 997, 1000-01 (Ill. App.
1998); Duren v. Union Pacific R. Co., 980 S.W.2d 77, 79 (Mo. App . 1998) .
Liepelt, 444 U.S . at 492-93 (whether evidence concerning federal taxes on decedent's
earnings was properly excluded is a federal question, but trial court is not
required to permit such evidence where future tax impact de minimus)l Lavender
v. Kum, 327 U.S. 645 (1946) (admissibility of evidence in FELA action a matter for
trial court absent abuse of discretion) ; Kelly, 241 U.S . at 491 (forum law
determines evidence admitted to show the method for calculating present value) .
reviewability of damages for excessiveness,26 and other procedures27 generally
govern FELA claims unless their application is found to diminish, destroy, or
interfere with a right or obligation created by the FELA . The cases indicate and
the Supreme Court acknowledges that formulating a clear rule to distinguish
what is procedural from what is substantive is impossible .28
II. Jury Instructions
The purpose of instructing a jury is to guide jurors in applying the law
correctly to the facts in evidence. Pattern jury instructions used in FELA cases
tried in federal court tend to be lengthy and detailed .29 Kentucky state courts
take a "bare bones" approach to jury instructions, however, leaving it to
counsel to assure in closing arguments that the jury understands what the
instructions do and do not mean.30 A proper instruction correctly advises the
jury "'what it must believe from the evidence in order to return a verdict in
26
27
28
29
30
Louisville & N. R. Co. v. Holloway, 246 U .S. 525 (1918) (court held that it lacked
power to review state high court's decision that damages not excessive where state
court did not necessarily misconstrue federal law) .
See Louisville & N. R. Co. v. Stewart, 241 U .S . 261 (1916) (court upheld local
practice imposing 10% penalty on party obtaining supersedeas ifjudgment
affirmed). But see Morgan, 486 U .S . 340 (error to refuse reduction to present
value based on state rule equating future inflation with future interest rates) ;
Jones & Laughlin Steel Corp . v. Pfeifer, 462 U.S. 523, 546-52 (1983) (state law does
not control method for calculating present value in federal right of action) ;
Holloway, 246 U.S . at 528-29 (state rule requiring present value of future losses to
be computed at state's legal interest rate inapplicable to FELA claim) .
Brown v. Western Railway ofAlabama, 338 U.S. 294, 296 (1949) .
See, e.g., 3A Kevin F. O'Malley et al ., FEDERAL JURY Practice AND INSTRUCTIONS, ch.
155 (5th ed. 2001) .
See Lumpkins v. City ofLouisville, 157 S.W.3d 601 (Ky. 2005) ; Young v. J. B. Hunt
Transportation, Inc., 781 S .W.2d 503, 506 (Ky. 1989) .
favor of the party who bears the burden of proof on that issue. "31 Regardless
of what form jury instructions take, they must state the applicable law
correctly and neither confuse nor mislead jurors .32 A trial court has a duty to
give a correct instruction when a party offers an erroneous or misleading
instruction on a proper issue . 33
A. Proximate Cause
The elements of a FELA claim are determined by federal common law
unless abrogated specifically by the Act.34 The FELA imposes liability for an
employee's injury that results "in whole or in part" from the railroad's
negligence and reduces rather than prohibits a recovery due to the injured
worker's contributory negligence . It contains no express abrogation of
common-law proximate cause; thus, courts applied common-law proximate
cause concepts and adhered to the rule that "[railroad] negligence must be a
link in an unbroken chain of reasonably foreseeable events" causing the
worker's injury.35 Cases indicate that lower courts had difficulty applying
proximate cause concepts to FELA claims .36 They also indicate that courts had
31
32
33
34
3s
36
Alice, Inc. v. Wilkey, 173 S.W.3d 226, 229 (Ky. 2005) .
Drury v. Spalding, 812 S.W.2d 713 (Ky. 1991) .
Murphy v. Harmon, 291 Ky. 504, 165 S.W.2d 11 (1942) .
Sinkler v. Missouri Pacific R. Co., 356 U .S. 326, 329 (1958).
Brady, 320 U.S. at 484.
See, e.g., Tennant v. Peoria & P. U. Ry. Co., 321 U.S. 29, 32 (1944), in which the
court noted that a FELA plaintiff must prove that the defendant's negligence "was
the proximate cause in whole or in part of the [plaintiffs injury]" and reversed a
lower court's finding that there was insufficient proof of proximate causation to
create a jury question.
even greater difficulty with the distinctions between proximate cause in a FELA
action and in a common-law negligence action.
Coray v. Southern Pacific Co. 37 concerned the application of proximate
cause principles to a case where there was evidence of consecutive employer
and employee fault. At issue was a claim for the death of a railway worker who
crashed the flat-top motorcar that he operated into the rear end of a freight
train that had stopped unexpectedly due to a defect in its brake lines .
Although the defect violated the Federal Safety Appliance Act, providing
evidence of railroad negligence, the trial court directed a verdict for the railroad
based on evidence that the worker was looking backwards immediately before
the crash and failed to apply the motorcar's brakes. The state appellate court
upheld the decision. It reasoned that the train's unexpected stopping was a
cause of the injury in a philosophical sense, insofar as it created a condition
upon which the worker's negligence operated, but was not the proximate cause
in a legal sense because it was not "a substantial as well as actual factor" in
causing the injury. The Supreme Court reversed. Finding implicitly that both
parties' negligence proximately caused the injury, the court stated that the "in
whole or in part" language from 45 U .S .C. § 51 entitled the worker to recover if
employer negligence was "the sole or a contributory proximate cause" of
injury. 38 The court reasoned that the statutory language is "simple and direct;"
that it makes employers responsible for injuries "resulting in whole or in part"
335 U .S . 520 (1949) .
38 Coray, 335 U .S . at 523 .
37
10
from employer negligence ; and that "[c]onsideration of its meaning by the
introduction of dialectical subtleties can serve no useful interpretative
purpose . "39
Rendered shortly after Coray, the majority and two minority opinions in
Carter v. Atlanta & St. Andrews Bay Ry. Co. 4o again concerned the application
of traditional proximate cause concepts to a FELA claim. In Carter the
Supreme Court reversed the Fifth Circuit's decision to affirm a directed verdict
for the railroad. The Fifth Circuit agreed with the trial court that the failure of
a rail car to couple on the first of two impacts was a remote rather than
proximate cause of an injury that occurred in the second impact. Citing
Coray4 l for the principle that a plaintiff may prevail by convincing the jury that
the railroad's negligence is "a contributory proximate cause" of injury, the
Supreme Court held that the evidence of causation was sufficient to create a
jury question . An opinion by Justice Frankfurter indicated that he considered
certiorari to be granted improvidently in a case where a trial and appellate court
had "wrestled with the phantoms of proximate cause" and the merits involved
only an evaluation of the record . The opinion noted that workers'
compensation laws avoid "the inevitably casuistic efforts to apply concepts of
'negligence,' proximate cause,' and contributory negligence" under the FELA by
3 9 Coray, 335 U.S. at .524.
40
41
338 U.S. 430, 434-35 (1949) .
335 U.S. at 523.
dealing with industrial injuries under the principle of insurance rather than
negligence .42
The parties in the present case cite to Rogers v. Missouri Pacific Railroad
Co.,43 a subsequent case in which the Supreme Court addressed the effect of
the FELA's "in whole or in part" language on traditional proximate cause
concepts. In Rogers the worker's primary duty was to burn off weeds beside
the railroad tracks, but he was instructed to stop doing so when a train passed
in order to watch for hotboxes . Flames from burning weeds spread while he
was performing the latter duty. Moving blindly away from the flames, he was
injured when he slipped on loose gravel that the employer left on the surface of
a culvert and fell . Reversing a state court decision, the Supreme Court found
adequate evidence to create a jury question concerning causation but rejected
a standard requiring the worker to show that the injury would not have
occurred but for the employer's negligence or absent its negligent act. The
court reasoned :
That is language of proximate causation which makes
a jury question dependent upon whether the jury may
find that the defendant's negligence was the sole,
efficient, producing cause of injury. 44
The court concluded that the test of a jury case under the FELA is whether the
evidence permits a reasonable conclusion "that employer negligence played any
42
43
44
Carter, 338 U.S . at 437.
352 U.S. 500, 507 (1957) .
Rogers, 352 U .S . at 506.
12
part, even the slightest, in producing the injury or death for which damages are
sought . "45
The Supreme Court has yet to state clearly whether Coray, Carter, and
Rogers altered the common-law proximate cause standard or simply construed
45 U.S .C . § 51 as rejecting the "sole proximate cause" test in favor of an "a
proximate cause" test. Dictum found in some subsequent cases indicates that
traditional proximate causation is inapplicable in FELA cases.46 The court
declined to address what the causation standard should be in Norfolk Southern
Ry. Co. v. Sorrell, 47 holding only that a state court erred by failing to subject
FELA plaintiffs and defendants to the same standard for proving negligence
and contributory negligence . 48 Concurring opinions by Justices Souter and
Ginsburg differed concerning the implications of Rogers on proximate cause
concepts .49
The prevailing view in this circuit as expressed in Tyree v. New York
Central Railroad Co. 50 is that the FELA does not require a finding of proximate
45
46
Id.
Consolidated Rail Corp. v. Gottshall, 512 U .S. 532, 543 (1994), indicates that a
relaxed standard of causation applies to FELA claims . An earlier case, Crane v.
Cedar Rapids & Iowa City Railway Co., 395 U.S. 164, 166 (1969), indicates that
an employee claiming under the FELA "is not required to prove common-law
proximate causation but only that his injury resulted 'in whole or in part' from the
railroad's violation of the Act. . . ." (citations omitted) .
47 549 U.S . 158 (2007) .
48 At issue were Missouri approved instructions that allowed a finding for the plaintiff
if railroad negligence contributed "in whole or in part" to the injury; whereas, they
allowed a finding of contributory negligence if the plaintiffs negligence "directly
contributed to cause" the injury.
49 Sorrell, 549 U .S . at 172-82 .
50 382 F .2d 524 (6th Cir. 1967), cert. denied, 389 U.S. 1014 (1967).
13
causation. Acknowledging that the Mathes and Devitt5 l instruction the
plaintiff requested would have been proper but noting the difficulty of defining
proximate cause clearly in FELA cases, the court opined that "it would be
better. . . if no mention of proximate causation whatever was made to the
jury. 1152 The court recommended, instead, an instruction stating that an
employer is liable for damages if its negligence played any part, even the
slightest, in producing the injury; that the employer's negligence and
employee's negligence, if any, must be compared ; and that the recovery must
be diminished in proportion to the employee's negligence . In Hamilton v. CSX
Transportation, Inc., 53 the Kentucky Court of Appeals relied on Tyree and a
subsequent Sixth Circuit case54 to state that proximate cause instructions
51
52
53
54
Mathes and Devitt, FEDERAL JURY PRACTICE AND INSTRUCTIONS, § 84 .12 (1965) . The
instruction states: "An injury or damage is proximately caused by an act, or failure
to act, whenever it appears, from a preponderance of the evidence in the case, that
the act or omission played any part, no matter how small, in bringing about or
actually causing the injury or damage. So, if you should find, from the evidence in
the case, that any negligence of the defendant contributed, in any way or manner,
toward any injury or damage suffered by the plaintiff, you may find that such
injury or damage was proximately caused by the defendant's act or omission ."
Tyree, 382 F.2d at 529.
208 S.W.3d 272, 278 (Ky. App. 2006) . The appellate court found the jury
instructions to be prejudicial insofar as the "in whole or in part" language of
causation from 45 U.S.C . § 51 was "buried" in a separate proximate cause
definition . Moreover, an interrogatory requiring employer negligence to be "a
substantial cause" of Hamilton's injury ignored the language entirely. The court
stated that Rogers adopted a relaxed standard of causation that abrogated
traditional common-law tests of proximate cause and did not suggest that a FELA
plaintiff must show "substantial cause" in order to prevail.
Hausrath v. New York Central Railroad Co., 401 F.2d 634, 636-38 (6th Cir. 1968).
The Hausrath court found reversible error under both common law and FELA
negligence concepts in instructions that employer negligence must be "the direct
and proximate cause" of injury; that "proximate cause means the closest cause,
the direct cause, the cause but for which this would never have happened in the
first place;" and that used the phrase "the proximate cause," "the direct cause," or
14
should be avoided in FELA cases and that a causation instruction should
"reflect the U.S. Supreme Court's language in Rogers."
CSX asserts that the Court of Appeals erred in the present case by
affirming the trial court's refusal to give a requested instruction on proximate
causation and by declining an invitation to rely on Justice Souter's concurring
opinion in Sorrell55 as a basis to revisit Hamilton. The crux of its argument is
that Rogers and Hamilton address a FELA plaintiffs right to recover when an
injury has multiple causes but fail to address direct causation and, thus, are
not authority for refusing to instruct on proximate cause . CSX concludes that
proximate cause remains an essential element of a FELA claim under Rogers
and, thus, that a jury must be instructed on proximate cause.
The instruction tendered by CSX required Begley to prove that its
negligence "contributed proximately, in whole or in part" to his injury and
stated, "It is not enough for [Begley] to show that the Defendant's negligence, if
.any, was an indirect or remote cause of his injury." The record indicates that
Begley objected based on Hamilton, after which CSX offered to delete the word
"proximately ." We conclude that the trial court did not err by refusing the
amended instruction and leave the question of whether the FELA generally
55
"the real cause" repeatedly. The court explained that the instructions failed to
indicate that the defendant's negligence need only be "a proximate cause" of
injury. Moreover, they failed to state or emphasize sufficiently that an employer is
liable under the FELA for injuries "resulting in whole or in part" from its
negligence .
549 U.S. at 172 .
15
requires a proximate cause instruction for another day. Such an instruction
was unnecessary under the evidence in this case .
Begley introduced evidence from Drs . Chaney and Kress that repetitive
microtrauma incurred during twenty years of performing moving mounts and
dismounts accelerated the development of his non-work-related arthritic
condition . Testifying for CSX, Dr. Love stated that Begley's work did not in any
way contribute to his age-related degenerative condition, which was identical to
what it would have been had he never performed a moving mount or dismount.
Thus, both parties' evidence established direct or proximate causation (i.e., an
unbroken chain of causation),56 be it from multiple causes (work-related
microtrauma and natural aging) or from a single cause (natural aging) .
Although Dr. Love's testimony created a dispute over whether Begley's
work affected the development of his degenerative condition, it failed to create a
dispute over whether his work, if it accelerated the development of his
condition, did so directly or indirectly. Evidence that the exposure to
microtrauma ceased in 1990 was a consideration for the jury when weighing
the conflicting medical testimony. Although temporal remoteness may show a
lack of proximate causation on other facts, nothing in this claim indicates that
aging acted as an intervening superseding cause or that microtrauma affected
the development of Begley's degenerative condition only indirectly.
56
See Atchison, Topeka, & Santa Fe Railway Co. v. Calhoun, 213 U.S. 1, 7 (1909) . The
Supreme Court explained in this pre-FELA case, "Where, in the sequence of events
between the original default and the final mischief an entirely independent and
unrelated cause intervenes, and is of itself sufficient to stand as the cause of the
mischief, the second cause is ordinarily regarded as the proximate cause and the
other as the remote cause ."
16
The trial court did not err in refusing CSR's amended instruction
because the evidence established proximate cause and created no jury question
over the issue. Moreover the jury might have construed the instruction to
mean that the law precluded a finding that CSR's negligence contributed "in
whole or in part" to the development of Begley's osteoarthritis if it considered
the microtrauma to be "remote" inasmuch as it occurred from 1970 to 1990.
Having denied CSR's instruction, the trial court instructed the jury that a
railroad is liable for injuries resulting in whole or in part from its negligence .
The instructions permitted a finding for Begley if CSX failed to exercise
ordinary care and its failure to do so "was a factor, no matter how slight, in
contributing in whole or in part to the development of arthritis in the Plaintiffs
knees and hips." The court instructed the jury upon a positive finding to
determine whether Begley failed to exercise ordinary care for his own safety
and, if he failed to do so, whether his conduct was a factor, no matter how
slight, in contributing in whole or in part to the arthritis. Finally, the court
instructed the jury upon a positive finding to assign a percentage of fault to
each party. The jury received adequate instructions under the evidence .
B. Foreseeability
CSX asserts that the trial court erred by refusing to give a tendered
instruction on foreseeability . The proposed instruction stated in relevant part
There is a requirement in establishing negligence,
namely that [CSX] . . . using ordinary caution and
prudence, should have foreseen that some injury
would probably arise from their acts . I tell you this
because "reasonable foreseeability of harm" is an
essential ingredient of the Federal Employers' Liability
17
Act negligence . The railroad's duty is measured by
what is reasonably foreseeable under the
circumstances, by what in the light of the facts then
known, should reasonably have been anticipated.
(emphasis original) .
If you find that the claimed injuries to the Plaintiff
[were] not reasonably foreseeable to the railroad, your
verdict must be in favor of the Defendant. (emphasis
added) .
CSX states correctly that common-law negligence requires proof that the
defendant knew or should have known that its conduct created a reasonable
likelihood of injury. We acknowledge that foreseeability of harm is an essential
element of negligence under the FELA. 57 We conclude, however, that the trial
court did not err because the requested instruction might have misled the jury
and because the trial court's instructions addressed foreseeability adequately.
Gallick v. The Baltimore and Ohio Railroad Co. 58 indicates that a separate
foreseeability instruction is not required in FELA cases if the jury is instructed
that the defendant's duty is "measured by what a reasonably prudent person
would anticipate" under the same or similar circumstances. The court noted
also that a defendant "need not foresee the particular consequences of [its]
negligent acts" but only that its conduct would reasonably be anticipated to
result in harm. 59 Thus, a defendant is liable for even the improbable or
unexpectedly severe results of its negligence. 6o
57 Inman v. Baltimore & O.R. Co., 361 U.S . 138, 140 (1959) .
$ 8 372 U .S . 108, 118 (1963) .
59 Gallick, 372 U.S . at 120.
60 Id .
18
Mindful that a FELA defendant need not foresee the particular type of
injury that occurred, we conclude that the reference in the second paragraph of
the tendered instruction to "the claimed injuries" might have misled the jury in
this case. When read in the context of the entire instruction and the facts, the
reference might have led the jury to think erroneously that it must find for the
defendant if it considered an acute injury to be a foreseeable consequence of
performing moving mounts and dismounts but did not consider the
development of osteoarthritis in the knees and hips to be foreseeable . Thus,
the trial court did not err in refusing the instruction .
Attacking the instructions that were given, CSX asserts that the use of
the words "risks or dangers" in Instruction 5 rather than "risk of injury" might
have misled the jury to conclude that performing moving mounts and
dismounts was "generally risky" but not that CSX should have known that it
"was also potentially injurious in the relevant sense." We disagree.
The jury received instructions that complied with the foreseeability
requirement as construed in Gallick. Instruction 3 informed the jury that CSX
was liable for injuries to employees that resulted in whole or in part from its
negligence, "including negligence related to its work practices ." Instruction 4
defined negligence as doing some act that a reasonably prudent person or
corporation would not do under similar circumstances or failing to do what a
reasonably prudent person or corporation would do under similar
circumstances. It equated negligence with a "failure to use ordinary care under
the circumstances ." Instruction 5 required CSX "to use ordinary care under
19
the circumstances" to provide Begley "with a reasonably safe place in which to
work" and "to guard against risks or dangers of which it knew, or by the
exercise of ordinary care should have known ." The instruction defined ordinary
care as "the care an ordinarily prudent railroad acting under the same or
similar circumstances would exercise under the facts presented in this case."
The jury found under Instruction 5 that CSX "failed to exercise the care
required of it" and that its failure "was a factor, no matter how slight, in
contributing in whole or in part to the development of osteoarthritis in
[Begley's] legs and hips." The jury made clear by doing so that it thought CSX
should have realized when requiring employees to perform moving mounts and
dismounts that the maneuvers could reasonably be anticipated to result in
injury . Gallick indicates that the FELA requires no more . 61
C . Non-taxation of Damages
CSX asserts that the trial court committed reversible error by refusing to
instruct the jury as follows:
You are charged that any award made to plaintiff as
damages in this case, if any award is made, is not
subject to federal or state income taxes, and you
should not consider such taxes in fixing the amount of
an award made to plaintiff, if you make any.
CSX's argument relies on Norfolk & Western Ry. Co. v. Liepelt62 for two
principles : 1 .) that personal injury awards are exempt from state and federal
61
62
872 U.S. at 118-19 .
444 U.S. 490 (1980) .
20
income tax;63 and 2 .) that refusing to instruct the jury concerning the
exemption constitutes reversible error. Although we agree that the trial court
erred by failing to give the requested instruction, we do not agree that the error
compels us to reverse in this case.
Most states, including Kentucky,64 consider tax implications to be
immaterial to the calculation of damages for personal injury. The U. S.
Supreme Court reached the opposite conclusion with respect to FELA claims in
Liepelt. This case involves a FELA claim and CSX tendered an instruction that
closely resembled the instruction addressed in Liepelt. We conclude, therefore,
that the trial court erred by refusing to give the instruction . The issue then
becomes whether Liepelt compels reversal.
Liepelt involved a wrongful death claim brought in state court under the
FELA. Objecting at trial to the plaintiffs use of gross earnings to prove
pecuniary damages, the defendant offered to produce expert testimony that
estimated the income taxes on the decedent's past and future earnings to be
about $57,000 and placed the net pecuniary loss at $138,327, which was
significantly less than the plaintiffs evidence . The trial court refused to admit
the evidence and also refused to instruct the jury that a damage award would
63
64
See 26 U.S.C. § 104(a)(2) (gross income excludes damages received on account of
personal injuries) ; KRS 141 .010(9) (adopts Internal Revenue Code definition of
gross income).
See Paducah Area Public Library v. Terry, 655 S.W.2d 19 (Ky. 1983) ; Louisville &
Nashville Railroad Co., Inc. v. Mattingly, 339 S .W.2d 155 (Ky. 1960) . See also 16
A.L.R.4th 589 (1982) .
21
not be subject to income tax. 65 The jury awarded damages of $775,000
although the plaintiffs expert placed the loss at a present value of $302,000
plus the value of the care and training that the decedent would have provided
his young children.
Appealing both rulings, the defendant argued that the jury must have
assumed the award would be taxed or it would not have rendered a verdict
more than double the plaintiffs proof. The plaintiff attributed the excess to
non-pecuniary damages. The Supreme Court stated that whether it was error
to exclude its evidence concerning the federal taxes on the decedent's earnings
and to refuse the defendant's instruction were federal questions. Having
determined that both the evidentiary and instructional rulings were erroneous,
the court reversed.
The court acknowledged a judicial policy of considering evidence that
predicted future tax consequences to be too speculative and complex for jury
deliberations in FELA cases but noted that the policy dated to an earlier time,
when federal taxes were relatively insignificant . Mindful of the contemporary
American public's "tax consciousness," the court determined that after-tax
income more closely measures the pecuniary loss to a deceased worker's
survivors than gross income and, thus, is the proper basis of an award. The
court noted, however, that trial courts would not be required to permit such
6s
The requested instruction stated, "[YJour award will not be subject to any income
taxes, and you should not consider such taxes in fixing the amount of your
award." Liepelt, 444 U.S . at 492 .
22
evidence in every case and that it might be more confusing than helpful in
cases where taxes would have a de minimus impact.
Addressing the instructional error, the court noted the discrepancy
between the plaintiffs evidence and the jury's verdict and observed that it was
reasonable to suppose the jury inflated the award under the erroneous belief
that a portion of it would be paid in taxes. 66 The court noted also that
regardless of whether such speculation was accurate, the defendant's
instruction would do no harm and help prevent the jury from inflating the
award under the mistaken belief that it would be taxed . Thus, the trial court
erred by refusing it.
The Supreme Court has yet to clarify whether Liepelt mandates reversal
whenever a trial court refuses to instruct the jury that damages are exempt
from state and federal income tax. Of the lower federal appellate courts, the
Fourth, Fifth, and Eighth circuits have considered whether such an error is
reversible per se.67 Their conclusions differed .
66
67
444 U.S. at 497.
Two cases, by the Fourth and Tenth Circuits, concerned other issues regarding the
applicability of Liepelt. In Allred v. Maersk Line, Ltd., 35 F.3d 139, 141-42 (4th Cir.
1994), the trial court refused the defendant's taxation instruction and the jury
awarded $1,000,000, after which the plaintiff agreed to a remittutur to $500,000 .
The defendant appealed based among other things on the instructional error and
inadequacy of the remittitur . The Fourth Circuit reversed and remanded for a new
trial concerning damages, having determined that Liepelt applies to Jones Act
claims and is not limited to cases concerning lost wages. Fulton v. St. Louis-San
Francisco Ry. Co., 675 F.2d 1130, 1134-35 (10th Cir. 1982), holds that no manifest
injustice results from applying Liepelt retrospectively because to do so merely
requires a retrial on damages before a properly-instructed jury. Neither case
indicates that a harmless error argument was raised. Nor does Gulf Offshore Co.
v. Mobil Oil Corp., 453 U.S . 473 (1981), on which they relied for the principle that
23
In Cazad v. Chesapeake and Ohio Ry. Co . 68 the Fourth Circuit held
without analysis that Liepelt mandated reversal based on the trial court's
refusal to instruct the jury that an award is not subject to taxation. The Fifth
Circuit rejected an argument in O'Byrne v. St. Louis Southwestern Railway
C0. 69 that a refusal to give the instruction was harmless error, convinced that
the Supreme Court did not consider the size of the gap between the plaintiffs
evidence and the jury verdict to be significant to the Liepelt holding. Neither
decision addressed the fact that Liepelt involved two erroneous rulings and
failed to attribute the decision to reverse to either of them alone. Focusing on
that fact, the Eighth Circuit determined in Flanigan v. Burlington Northern,
Inc. 70 that Liepelt does not require reversal in every instance that a trial court
refuses a taxation instruction .
Flanigan concerned a FELA claim brought in federal court in which the
trial court refused a taxation instruction. Affirming despite the error, the
Eighth Circuit reasoned that federal court jury instructions are subject to a
harmless error rule that places on the appellant the burden to show that
prejudice resulted from the error.71 The court noted that the reversal in Liepelt
was based on the trial court's combined evidentiary and instructional errors.
The court noted also that, unlike the defendant in Liepelt, this defendant was
Liepelt announced a common-law rule governing all claims decided under federal
law.
622 F.2d 72 (4th Cir. 1980).
69 632 F.2d 1285, 1287 (5th Cir. 1980) .
70 632 F.2d 880 (8th Cir. 1980), cert. denied, 450 U.S. 921 (1981) .
71 Id. at 889. See FCRP 61 .
68
24
not precluded from introducing evidence of net earnings and pointed to no
evidence that the jury inflated the award on the erroneous belief that it would
be taxed. Moreover, the verdict was not excessive, was supported by the
evidence, and indicated that the jury was not operating under a misconception
concerning taxes . Like the Eighth Circuit and some other state appellate
courts,72 we do not read Liepelt as requiring the conclusion that a refusal to
give a tax instruction always constitutes reversible error.
The present case was tried in state court. CSX notes that CR 61 .01
presumes erroneous jury instructions to be prejudicial. Moreover, unlike the
Flanigan court's interpretation of FRCP 61, Kentucky courts have construed
CR 61 .01 as placing the burden on the appellee to show a lack of prejudice. 73
Asserting that the evidence does not permit Begley to meet his burden of
showing a lack of prejudice, CSX concludes that his award must be reversed.
CSX argues that one can only speculate about whether the size of the
verdict resulted from a mistaken assumption that damages are taxed because
the jury might have reached either of two conclusions. First, the jury might
have thought that $250,000 fairly compensated Begley's pain and suffering and
failed to consider any tax implications . Or, second, the jury might have
thought that a sum less than $250,000 would compensate Begley for his
damages but then raised the sum to $250,000 in the mistaken belief that the
72
73
See, e.g., Dallas v. Burlington Northern Inc., 689 P.2d 273 (Mont. 1984) (error
harmless where verdict equaled plaintiffs proofl ; Marlow v. Atchison, Topeka &
Santa Fe Ry. Co., 671 P.2d 438 (Colo . App. 1983) (error harmless where no
showing that award excessive) .
McKinney v. Heisel, 947 S.W.2d 32, 35-36 (Ky. 1997).
25
award would be taxed . CSX concludes that Begley must lose because neither
conclusion is more persuasive . We disagree and note that the jury might have
reached other conclusions as well. 74
An appellate court must reverse a judgment when a substantial
likelihood exists that the instructions confused or misled the jury75 or when the
court cannot determine from the record that an erroneous instruction did not
affect the verdict. 76 When considering a claim of harmless error under CR
61 .01, the court determines whether the result probably would have been the
same absent the error77 or whether the error was so prejudicial as to merit a
new tria1.78 Having reviewed the record and considered the size of the award,
we think it more likely that the jury determined what amount would
compensate Begley fairly and failed to consider any tax implications. We
conclude, therefore, that the error in refusing the instruction was not so
prejudicial as to warrant a new trial.
74
75
76
Instructions 7 and 8 directed the jury to apportion fault and stated that CSX was
not responsible for the percentage of negligence assigned to Begley. Instruction 9
directed the jury to award damages for past and future pain and suffering in an
amount not to exceed $500,000 . The instruction failed to state that the amount
should equal the total Begley would be allowed to recover if his contributory fault
were disregarded. Thus, having apportioned 50% fault to CSX, the jury might
have determined that $250,000 compensated Begley fairly for CSX's fault and
failed to consider any tax implications . Or the jury might have thought that a
lesser sum compensated him fairly for CSX's fault and raised the sum to $250,000
in the mistaken belief that the award would be taxed.
See McKinney, 947 S.W.2d at 35-36; Drury v. Spalding, 812 S.W.2d 713, 717 (Ky.
1991) .
City ofMiddlesboro v. Brown, 63 S.W.3d 179, 182 (Ky. 2001) ; Prichard v. Kitchen=
242 S.W.2d 988, 992 (Ky. 1951).
77 Keesee v. Smith, 289 Ky. 609, 159 S .W.2d 56, 58 (1941) ; Ritchie v. Perry County,
276 Ky. 57, 58, 122 S.W.2d 988 (1938) .
78 Hamilton, 208 S .W.3d at 275.
26
Although Begley's attorney requested $500,000 for past and future pain
and suffering, the jury apportioned 50% fault to CSX and then awarded
damages of $250 ;000, which the trial court reduced by 50% to $125,000 . The
fact that a jury awards less than the plaintiff requests may or may not indicate
that the trial court's failure to give a proper tax instruction was harmless .
More significant to the analysis is whether the verdict was excessive under the
evidence .79
A verdict is excessive under the evidence if it "cause[s] the mind at first
blush to conclude that it was returned under the influence of passion or
prejudice on the part of the jury."8o Even if liberal, an award that does not
shock the conscience or is not clearly excessive may not be set aside.s1 The
award in the present case was not clearly excessive under the evidence .
Begley's award compensated him for approximately 27 years of pain and
suffering due to his injury. 82 Even Dr. Love testified that Begley suffered
presently from severe, end-stage arthritis in his knees and hips . Dr. Love
acknowledged that "if I had his hips, I would have trouble walking a block" and
stated that Begley would need to consider knee and hip replacements in the
future. We affirm because the evidence indicates that the verdict was
See Flanigan, 632 F.2d at 890 . We acknowledge that Kentucky differs from
Flanigan by placing the burden on the appellee to prove a lack or prejudice due to
instructional error. Nonetheless, we agree with Flanigan insofar as a verdict that
is not excessive under the evidence shows a probable lack of prejudice .
$0 Louisville & Nashville Railroad Co, Inc. v. Mattingly, 339 S.W.2d 155, 160-61 (Ky.
1960) .
8 1 Id.
82 The period ran from the mid 1990s until his April 2007 trial and thereafter for the
15 years estimated to remain in his life expectancy.
79
27
reasonable and was not returned under the influence of passion or prejudice .
The record indicates that the jury determined what amount would compensate
Begley reasonably for past and future pain and suffering and did not inflate
that amount in the mistaken belief that it would be taxed.
D . Present Value of Non-economic Damages
CSX complains that the trial court refused to instruct the jury on present
value as follows:
If you find in favor of the Plaintiff and decide to make
an award for pain and suffering in the future, you
must take into account the fact that the money
awarded by you is being received all at one time
instead of over a period of time extending into the
future and that the Plaintiff will have the use of this
money in a lump sum. You must, therefore, determine
the present value or present worth of the money which
you award for future pain and suffering.
The Supreme Court determined in Chesapeake & Ohio Ry. Co. v. Kelly83
that "when future payments or other pecuniary benefits are to be anticipated,
the verdict should be made up on the basis of their present value only." Thus,
a FELA defendant is entitled to an instruction that the lump sum awarded for
future economic damages must be based on the present value of the stream of
income the plaintiff expects to lose due to the injury or the stream of medical
and other expenses that the plaintiff expects to incur. CSX asserts that the
rule applies to future pain and suffering as well as to economic damages and
that the trial court committed reversible error in this case by refusing the
instruction. We disagree .
83
241 U.S. 485, 491 (1916) .
28
Kelly and the subsequent Supreme Court cases addressing present value
concerned future economic damages. 84 The court has yet to decide squarely
whether damages for future pain and suffering must also be reduced to present
value . Our research reveals no uniform rule among the lower federal courts
that have addressed the matter in a case controlled by federal law. Most
federal circuits, 85 most states, 86 and the Restatement (Second) of Torts 87 favor
exempting future noneconomic damages from the present value rule . Absent a
decision by the Sixth Circuit, we find the majority view to be more persuasive
and note its conformity with Kentucky laws$
Chicago & .1V W. Ry. Co. v. Candler89 explains that damages for pain and
suffering are exempt from the present value rule because they differ in kind
from damages for future wages and expenses . Damages for future wages
involve the loss of an anticipated stream of income, the amount of which can
be calculated from market-based factors such as past wages, fringe benefits,
84
See Monessen Southwestern Ry. Co. v. Morgan, 486 U.S . 330 (1988) ; St. Louis
Southwestern Ry. Co. v. Dickerson, 470 U.S . 409 (1985) ; Jones & Laughlin Steel
Corp . v. Pfeifer, 462 U .S. 523 (1983) .
5 Flanigan v. Burlington Northern, Inc., 632 F.2d 880 (8th Cir. 1980), cert. denied 450
U.S . 921 (1981); Taylor v. Denver & Rio Grande Western Railroad Co., 438 F. 2d
351, 352-53 (10th Cir. 1971) ; Texas & Pacific Railway Co. v. Buckles, 232 F.2d
257, 264 (5th Cir. 1956), cert. denied, 351 U.S . 984 (1956). Compare DeChico v.
Metro-North Commuter R.R ., 758 F.2d 856 (2d Cir. 1985) .
86 See Oliveri v. Delta Steamship Lines, Inc., 849 F.2d 742, 750-51(1988) .
87 § 913A (1979) .
The Restatement indicates that the present worth reduction applies
to future pecuniary losses, such as future lost earnings and medical expenses . It
does not apply to awards for future noneconomic damages such as pain and
suffering or emotional distress .
8
88
89
See Louisville & N.R. Co. v. Gayle, 204 Ky. 142, 263 S.W. 763 (1924).
283 F. 881 (8th Cir. 1922) .
29
and unreimbursed employee expenses ; anticipated wage increases due to
raises and promotions ; remaining work life ; and infiation . 90 Damages from an
injury also include expenses, such as for future medical care, which can
likewise be calculated from relevant market-based factors. Predicting the total
anticipated loss for each future year involves some degree of speculation, but
an annual figure can be calculated with reasonable certainty and reduced to
present value. Such is not the case with pain and suffering.
No objective standard exists to measure degrees of physical and
emotional pain and suffering and no market exists to determine their economic
value. Thus, awards for future pain and suffering involve a greater degree of
speculation than those for economic losses . The factual bases for such
damages include the nature and extent of the injury and its likely effect on the
plaintiff. Although argument based on a per diem figure may assist a jury in
reaching a fair and reasonable dollar amount as compensation for pain and
suffering, experience teaches us that plaintiffs may or may not experience pain
and suffering in a predictable pattern each day or each year . Thus, use of the
method should not be construed to imply an undue degree of precision in
anticipating the probable degree of pain and suffering that a plaintiff will
experience at a given time. Jurors determine what fairly and adequately
compensates a plaintiff under the evidence "guided by their observation,
experience and sense of fairness and right. "91
Id. at 884-85 . See also Pfeifer, 462 U.S. at 533-53 .
91 Candler, 283 F. at 885. See also Gayle, 263 S.W. at 763 .
90
30
We conclude that the trial court did not err by refusing CSX's present
value instruction. Instruction 9 directed the jury, if it found CSX to be
negligent, to "find from the evidence and award [Begley] such . . . damages, if
any, you believe he has sustained as a result of mounting and dismounting
moving equipment." Verdict Form B indicates that the jury awarded Begley
$250,000 in damages for pain and suffering "to fairly and adequately
compensate [him] for his injuries." Such damages need not be reduced to
present value.
The decision of the Court of Appeals is affirmed.
All sitting. All concur .
COUNSEL FOR APPELLANT,
CSX TRANSPORTATION, INC. :
James E. Cleveland, III
James Wade Turner
Alexander C. Ward
Huddleston Bolen LLP
855 Central Avenue
Suite 301
P.O . Box 770
Ashland, KY 41105
COUNSEL FOR APPELLEE,
JOHN X. BEGLEY:
Thomas Ira Eckert
P.O. Box 7272
Hazard, KY 41702
John Oaks Hollon
Alva A. Hollon, Jr.
Sams 8, Hollon, P.A.
9424 Baymeadows Road
Suite 160
Jacksonville, FL 32256-7967
COUNSEL FOR AMICUS CURIAE,
ASSOCIATION OF AMERICAN RAILROADS (-AAR") :
David T. Klapheke
Boehl, Stopher 8s Graves, LLP
2300 Aegon Center
400 West Market Street
Louisville, KY 40202-3354
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