Opinion
No. 107,533.
2013-12-27
Steven DAVILA, Appellee, v. BNSF RAILWAY COMPANY, Appellant.
Appeal from Wyandotte District Court; Daniel A. Duncan, Judge. William P. Coates, Jr. and Leo Logan, of Coates & Logan, LLC, of Overland Park, and Alice E. Loughran, of Steptoe & Johnson LLP, of Washington, DC, for appellant. Davy C. Walker, of Law Offices of Davy C. Walker, of Kansas City, and Daniel J. Cohen, pro hac vice, of St. Louis, Missouri, for appellee.
Appeal from Wyandotte District Court; Daniel A. Duncan, Judge.
William P. Coates, Jr. and Leo Logan, of Coates & Logan, LLC, of Overland Park, and Alice E. Loughran, of Steptoe & Johnson LLP, of Washington, DC, for appellant. Davy C. Walker, of Law Offices of Davy C. Walker, of Kansas City, and Daniel J. Cohen, pro hac vice, of St. Louis, Missouri, for appellee.
Before McANANY, P.J., HILL and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
Burlington Northern Santa Fe (BNSF) Railway Company claims three errors in this appeal of an award of damages to Steven Davila, an employee injured in an attack by a coworker. This action is controlled by the Federal Employers' Liability Act, found at 45 U.S.C. § 51 et seq.
The Railroad claims Davila's injuries were not foreseeable and therefore it should not be held liable for these injuries. Because several of the Railroad's supervisors had actual notice of prior assaults by the employee that injured Davila, we hold the question of foreseeability became a question of fact for the jury to decide. We see no reason to disturb the jury's verdict.
The Railroad also contends the trial court should not have granted Davila a new trial based upon the admission of evidence in the first trial about collateral sources of income or other benefits available to Davila. Federal circuit courts of appeal have consistently rejected the admission of evidence of collateral benefits. We follow the majority rule and reject the Railroad's invitation to the contrary. Because there were 17 references to collateral source benefits available to Davila in the first trial, we hold the trial court did not abuse its discretion when it ordered a new trial.
In its final claim of error, the Railroad attacks the admission of evidence of violent acts of other Railroad employees at the railway yard where Davila worked. Additionally, the Railroad complains that the trial court erred when it refused to admit rebuttal evidence of a prior violent confrontation between Davila and a police officer. The Railroad's first claim is not preserved for appellate review because it failed to lodge a contemporaneous objection to the evidence when it was admitted. Because the trial court modified its prior ruling limiting the admission of any evidence about prior fights involving Davila, we deem the Railroad has waived any complaint about this because it simply failed to ask any further questions about the incident. We affirm.
Here is Davila's personal and work history.
Davila began work as a carman at the Argentine railway yard in Kansas City for the BNSF Railway Company (the Railroad) in 1994.
In 2004, Davila began receiving Interferon treatments for Hepatitis C. In some patients, this treatment can precipitate or exacerbate symptoms of depression. Because of his treatment, Davila required medical leave and began seeing psychiatrist Dr. Paul Owens on an outpatient basis for multiple psychiatric problems, including depression. Dr. Owens believed Davila needed regular and continuous psychiatric care, including a variety of antipsychotic medications, antidepressants, and mood stabilizers. A May 2005 hospital consultation found “mood issues with anger and depression.” By mid–2005, Davila's psychiatric symptoms had “substantially improved” enough to return to work.
Then, in 2006, Davila and Ronnie Beach, a coworker, got into a disagreement over Davila's use of a work vehicle. Beach “head-butted” Davila. Davila sustained a bloody nose and an injured shoulder.
In response, the Railroad suspended both Davila and Beach from work pending a formal investigation. Then, in March 2007, the Railroad terminated Beach's employment.
Davila received a 60–day suspension and a 3–year probationary period for violating the altercation rules and use of unsuitable language. Beach appealed his termination.
The Public Law Board reversed the Railroad's decision to terminate Beach, who then returned to the Argentine workplace in August 2008. After hearing of the Board's decision, Davila telephoned Dr. Owens “afraid ... very upset and concerned.” Dr. Owens responded by doubling Davila's dosage of Geodon, a mood-stabilizing drug. Dr. Owens testified Beach's return to work further aggravated Davila's mental health condition.
In February 2009, Davila drove a work vehicle into the side of a rail car. The Railroad brought disciplinary charges against Davila and subsequently terminated him on April 3, 2009, for failing to operate the work vehicle properly. Davila appealed, and the Board upheld his termination. Davila has remained unemployed and believes he is no longer employable because of his deteriorated mental condition. Dr. Owens found that Davila's termination affected his existing psychiatric conditions and concluded Davila is permanently and totally disabled.
Davila files suit.
Davila filed an action in the district court against the Railroad in August 2009. He sought damages under the Federal Employers' Liability Act, (FELA) 45 U.S.C. § 51 et seq. He alleged permanent physical and psychological injuries caused by Beach during the time of their employment with the Railroad. Davila attributed his injuries to the negligence of the Railroad. There were two jury trials in this case.
The second jury returned a verdict for Davila and awarded over $900,000 in damages, less 4 percent for his personal negligence. The Railroad moved for judgment as a matter of law and, in the alternative, for a new trial or remittitur. All of these motions were denied by the trial court. Ultimately the court awarded judgment against the Railroad in the amount of $879,907.51.
A brief review of FELA is useful.
Having no system of workers compensation for employees injured on the job, railroad employees can sue their employers for damages caused by the railroad's negligence. Under FELA, a railroad employee can recover for injuries sustained because of his or her employer's negligence:
“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 ... resulting in whole or in part from the negligence of ... employees of such carrier....” 45 U.S.C. § 51 (2006).
FELA actions may be brought in Kansas courts but are subject to substantive federal law. See Grube v. Union Pacific R.R. Co., 256 Kan. 519, Syl. ¶ 2, 886 P.2d 845 (1994).
In order to recover, a plaintiff must prove the traditional common-law elements of negligence. That includes duty, breach of a duty, foreseeability of injury, and causation. See Williams v. National R.R. Passenger Corp., 161 F.3d 1059, 1062 (7th Cir.1998).
Davila's claim is that FELA holds an employer liable where the railroad fails to prevent a reasonably foreseeable injury to an employee by a coworker, regardless of whether or not the injury occurred due to intentional or criminal misconduct. See Harrison v. Missouri Pacific Railroad Co., 372 U.S. 248, 249, 83 S.Ct. 690, 9 L.Ed.2d 711(1963).
Generally speaking, foreseeability of harm is a question of fact for a jury to decide. Elston v. Union Pacific R. Co., 74 P.3d 478, 483 (Colo.App.2003).
Again, the test centers on reasonable prudence:
“[T]he [FELA] plaintiff must prove that the railroad, with the exercise of due care, could have reasonably foreseen that a particular condition could cause injury. [Citations omitted.] The defendant's duty is measured by what a reasonably prudent person should or could have reasonably anticipated as occurring under like circumstances. [Citation omitted.]” Davis v. Burlington Northern, Inc., 541 F.2d 182, 185,cert. denied429 U.S. 1002 (8th Cir.1976).
We point out that a railroad is not an insurer. “ ‘If [the railroad] has no reasonable ground to anticipate that a particular condition ... would or might result in a mishap and injury, then [the railroad] is not required to do anything to correct [the] condition.’ [Citation omitted.]” CSX Transp., Inc. v. McBride, 564 U.S. ––––, 131 S.Ct. 2630, 2643, 180 L.Ed.2d 637 (2011).
We examine the evidence of prior workplace violence by Beach.
Beach was involved in several violent incidents on the job prior to his battery of Davila in December 2006. These incidents include four assaults on coworkers and a threat to a carman and his family:
• Dennis Losier, a retired Railroad carman, testified about an altercation with Beach prior to 2000 where a couple of employees had to pull Beach off him after Beach had “put a choke hold” on him. Losier testified he did not report the incident.
• Beach assaulted his supervisor Don Wheeler in 2000, when Beach went to Wheeler's office and grabbed Wheeler by the shoulder in his chair, spun him around, and knocked him out of his chair. After an investigation, the Railroad suspended Beach for 90 days and imposed a 3–year probationary period.
• Another carman, Dennis Brown, testified about “two incidents, maybe one, set in motion” in August 2006. In the first incident, Beach was present at an argument between Brown and a coworker. Beach did not like the way Brown was talking to the other employee and ran toward Brown, who, in response, pushed Beach to the ground and threatened to hurt Beach if he did not leave the room. As to this incident, Brown testified “nothing was ever reported,” but that some supervisors knew what had happened. A few weeks later, Brown and Beach got into a disagreement over who could sit in a particular chair. Brown, when leaving, played a “prank” by pouring a bucket of water on the chair. Beach became “ticked” and later charged at Brown, who stopped him with a defensive move. Brown testified that several foremen knew of this incident and, to his knowledge, the Railroad did not conduct an investigation of either incident.
• Carman Mark Bullock testified Beach threatened him and his family after Bullock had told Beach to be more careful with his marijuana use at work. Bullock also testified that he “never turned him in, had no intention to.”
• We do not believe that knowledge of the episodes of Beach's aggression toward Losier and Bullock can be imputed to the Railroad because they were never reported. But the Railroad admittedly knew of the aggression toward Wheeler in 2000 as it imposed a disciplinary sanction upon Beach for his acts.
The Railroad's attempt to depict this as an isolated prior event is far from persuasive when it admits several of its supervisors had actual notice of the incidents between Beach and Brown. Those acts took place a mere 4 months prior to Beach's confrontation with Davila.
Several cases persuade us that this matter was not a question of law for the court, but a question for the jury. In Ballard v. Union Pacific R.R. Co., 279 Neb. 638, 645, 781 N.W.2d 47 (2010), the court opined that to prove the railroad's negligence, the plaintiff must show that the railroad had knowledge of the employee's propensities and failed to act on this information. In Grasso v. Long Island Rail Road, 306 A.D.2d 378–379, 760 N.Y.S.2d 864 (2003), it was sufficient to have the jury determine the question of foreseeability where the railroad had actual notice of a prior incident causing injury to a fellow employee, even if disciplinary action was taken. Before that, in McMillan v. National R.R. Passenger Corp., 648 A.2d 428, 435–36 (D.C.1994), the appellate court ruled that the lower court erred in granting a directed verdict in favor of the Railroad because the railroad supervisors were aware that their employee had punched other workers before punching the plaintiff but did not take any action to report or reprimand him.
Even discounting the violent acts between Beach and Losier and Bullock, and the incidents involving Beach and Wheeler in 2000 and Beach and Brown in 2006, there is ample evidence to submit such a question to the jury. With the proof presented in this record, the question of whether the Railroad could have reasonably foreseen the incident became a question of fact for the jury to resolve, not the court. We find no error here.
We see no abuse in granting a second jury trial
District courts have discretion to grant or deny a new trial under K.S.A.2012 Supp. 60–259(a). This court will not disturb a ruling on a motion for new trial on appeal except upon a showing of abuse of discretion. National Bank of Andover v. Kansas Bankers Surety Co., 290 Kan. 247, 280, 225 P.3d 707 (2010). A judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. Critchfield Physical Therapy v. The Taranto Group, Inc., 293 Kan. 285, 292, 263 P.3d 767 (2011). Here, the Railroad bears the burden of showing such abuse of discretion. See Harsch v. Miller, 288 Kan. 280, 293, 200 P.3d 467 (2009).
The collateral source evidence at issue.
Prior to trial, the trial court granted Davila's pretrial motion in limine seeking the exclusion of references to any evidence barred by the collateral source rule, including, but not limited to, “Railroad Retirement Board sickness benefits or disability benefits, Providence or Aetna supplemental benefits, [and] unemployment benefits.” After the first trial, Davila complained of the following five references to collateral source benefits in order of occurrence.
1. Aetna: During cross-examination of Dr. Owens, the Railroad's attorney placed on the projector a “large blow-up of an Aetna Application for Benefits, completed by [Davila] himself.” (Of note, the Railroad did not include a copy of Exhibit 411 in the record.) Davila's attorney objected. The trial court ruled, “It's a collateral source we don't need to be brought into the trial,” and had the Railroad redact the form to remove any reference to insurance. Davila's counsel stated for the record, “I'm reserving my right to seek further relief at the appropriate time, based on this issue. I understand my objection has been sustained. I'm not sure that sustained objection will cure the [prejudice].” Davila's attorney declined a curative instruction, believing “that [would] only enhance the prejudicial effect.”
2. Exhibit 411: During cross-examination of Davila, the Railroad showed him defendant's exhibit 411—paperwork dated May 11, 2007. Of note, the Railroad did not include a copy of Exhibit 411 in the record but states in its brief that this exhibit is a “Statement of Sickness” form Davila filled out after his injury. The Railroad's attorney then asked Davila, “And on the back part over here, under Section C, one of the questions is, are you, according to you, applying for benefits, because you were injured at work or have a work-related illness. You checked what?” (Emphasis added.) Davila responded, “No.” Davila's attorney objected. The Railroad's counsel argued, “I was avoiding anything about collateral, since I was careful with my question.” The trial court sustained the objection, noting, “I don't know how a benefit can't be a collateral source.” To which the Railroad's attorney responded, “I apologize if I violated the Court's rulings.”
3. Dr. Leroy Grossman's deposition: Over Davila's objection, the trial court allowed the report of Dr. Grossman, an economist, to be read to the jury. During his deposition, the Railroad's attorney asked Dr. Grossman about any retirement “inducements” for railroad workers. Dr. Grossman responded, “It's called the 30/60 rule.” Davila's attorney objected under the collateral source rule. Dr. Grossman testified that the 30/60 rule permits a worker in the railroad industry with 30 years of credited service to retire at age 60 with pension benefits. The Railroad's attorney asked, “Do you know if Mr. Davila had intended to take advantage of the 30/60 rule?” Dr. Grossman responded, “He would not be eligible to retire, is my understanding, at age 60 because he would not have had 30 years of credible [ sic ] service.”
4. Dr. William Logan's cross-examination: During cross-examination of the Railroad's medical expert, the following exchange occurred between Davila's attorney and Dr. Logan regarding Davila's ability to return to work:
“Q. This stuff about Steve appealing the termination of his job. First of all, if Dr. Owens is correct, and Steve, in fact, is not able to work because of his psychiatric condition, it wouldn't matter if his appeal were successful or not, would it?
“A. Well, actually I think it would. If he appealed and got his job back and was not able to work currently, he could go on disability as he had done on a number of occasions under Dr. Owen's signature, and still retain his salary and benefits.” (Emphasis added.)
Davila's attorney objected to the testimony and the Railroad's failure to advise its witnesses on collateral source rules. Davila's attorney argued the testimony was prejudicial and noted it provided “a basis for mistrial, which-and certainly a new trial.” The trial court then asked, “You want a mistrial?” Davila's attorney responded, “I'm not asking for one, I'm telling you that this is that prejudicial. I think I would be entitled to one if I asked for it. I think the man has just given me a new trial.” The district court, at Davila's attorney's request, had the Railroad's attorney instruct its witness not to do that again.
5. Box of Medical Records: During trial, the parties stipulated to the admissibility of a box containing Davila's health care records. Before the box was sent to the jury, Davila's counsel expressed concern that the medical records might not be fully redacted of collateral source information but noted that the Railroad's counsel had assured him that it had been done. The Railroad's attorney told the trial court, “I hope that's true, Judge. I told my paralegal ... how to do it and what to do, but I haven't gone through each piece of paper.” The trial court responded, “I'll take your representation that you did it. After 30 years if I can't rely on your word, then it's too late to change.” The Railroad concedes that 13 documents in the box of records contained references to benefits and the documents “indicated, at best, that [Davila] had applied for disability benefits.”
Prior FELA cases are important in deciding this matter.
The admission of collateral source benefits in FELA actions is generally disfavored. This issue is controlled by a United States Supreme Court case, Eichel v. New York Central R. Co., 375 U.S. 253, 84 S.Ct. 316, 11 L.Ed.2d 307 (1963).
In Eichel, the United States Supreme Court reversed the United States Court of Appeals for the Second Circuit after finding that the federal district court had properly excluded evidence of the receipt of disability payments.
“In our view the likelihood of misuse by the jury clearly outweighs the value of this evidence. Insofar as the evidence bears on the issue of malingering, there will generally be other evidence having more probative value and involving less likelihood of prejudice than the receipt of a disability pension. Moreover, it would violate the spirit of the federal statutes if the receipt of disability benefits under the Railroad Retirement Act ... were considered as evidence of malingering by an employee asserting a claim under the Federal Employers' Liability Act.... It has long been recognized that evidence showing that the defendant is insured creates a substantial likelihood of misuse. Similarly, we must recognize that the petitioner's receipt of collateral social insurance benefits involves a substantial likelihood of prejudicial impact.” 375 U.S. at 255.
The federal circuits have consistently interpreted Eichel to preclude admission of evidence of collateral benefits. E.g., Green v. Denver & Rio Grande Western R. Co., 59 F.3d 1029, 1033 (10th Cir.1995); Riddle v. Exxon Transp. Co., 563 F.2d 1103, 1107 (4th Cir.1977); Fuhrman v. Reading Company, 439 F.2d 10, 14 (3d Cir.1971); Schroeder v. Pennsylvania Railroad Company, 397 F.2d 452, 456–57 (7th Cir.1968); Caughman v. Washington Terminal Company, 345 F.2d 434, 435–36 (D.C.Cir.1965).
We examine the Railroad's argument on the collateral source rule .
The Railroad contends that because none of the evidence Davila complained about stated he was actually receiving benefits from other sources for his injuries, the admission of the evidence could not violate the rule. It cites a case from the First Circuit Court of Appeals in support, Crowther v. Consolidated Rail Corp., 680 F.3d 95 (1st Cir.2012).
The Crowther court held the collateral source rule is meant to guard against the risk of either (1) the jury finding no liability because the worker had received such benefits, or (2) the jury reducing a damage award by the amount of the compensation received from other sources. The Court decided it was bound by the ruling in McGrath v. Consolidated Rail Corp., 136 F.3d 838, 841 (1st Cir.1998), which refused to follow Eichel and upheld the admission of collateral source benefits under Federal Rule of Evidence 403 to show malingering and lack of motivation to return to work. 680 F.3d at 98–100.
Our research has not discovered any other circuit that follows this reasoning. The Eichel holding is very clear. Any admission of collateral source evidence is outweighed by the danger of unfair prejudice and confusion to the jury. 375 U.S. at 254. The Eichel Court clearly ruled that submitting evidence showing that a FELA plaintiff is insured creates a substantial likelihood of misuse. 375 U.S. at 254. Even though the Eichel Court did not specifically state that a plaintiff must be in receipt of, or have received, insurance benefits, the 7th Circuit Court of Appeals noted in Schroeder, 397 F.2d at 457, “The “ smell ” of insurance ... must be presumed to affect a jury adversely to a [FELA] plaintiff's cause.' “ (Emphasis added.)
By our account, there were 17 references to collateral source benefits in the first trial. The record clearly indicates that the jury viewed an application for benefits completed by Davila. The jury also heard the Railroad's attorney ask Davila about applying for disability benefits. Also, the jury heard Dr. Logan testify that Davila could “still retain his salary and benefits” by claiming disability benefits. Also, the jury heard deposition testimony referring to Davila and the 30/60 rule, or railroad pension benefits. And, finally, the jury had access to 13 documents that made reference to disability benefits.
The Railroad argues that the box of documents was never viewed by the jury. Whether the jury viewed them or not is not the question because clearly they were admitted in violation of the order in limine issued by the trial court.
It seems to us that the trial court is in the best position to determine the impact these violations had on the jury's deliberations. See State v. Crum, 286 Kan. 145, 160, 184 P.3d 222 (2008).
The Railroad complains that the trial court did not undertake any prejudice inquiry. But we note that the Railroad never objected to the trial court's findings. In the absence of any objection to any alleged inadequate findings of fact or legal principles, the trial court is presumed to have found all facts necessary to support its order. Hill v. Farm Bur. Mut. Ins. Co., 263 Kan. 703, 706, 952 P.2d 1286 (1998).
We find no abuse of discretion by the trial court when it ordered a new trial in this case.
Evidentiary questions must be preserved with an objection.
The Railroad contends it should be granted a new trial because the trial court admitted evidence about workplace violence committed by other employees. Davila counters with the argument that this issue is not properly preserved for appeal. Davila is correct.
The law, K.S.A. 60–404, directs that a verdict shall not be set aside or reversed on account of any erroneous admission of evidence unless there appears of record an objection to the evidence timely interposed and so stated as to make clear the specific ground of objection. Our Supreme Court has directed in State v. King, 288 Kan. 333, 349, 204 P.3d 585 (2009), that in accordance with the plain language of K.S.A. 60–404, evidentiary claims must be preserved by way of a contemporaneous objection for those claims to be reviewed on appeal.
The Railroad argues that the trial court's ruling from the second trial, which stated objections made on exhibits during the first trial were preserved for the second trial, also encompassed any similar objections to witness testimony about the workplace conditions at the Argentine yard. The transcript of the hearing indicates the parties and trial court only discussed exhibits and at no point mentioned witness testimony. The Railroad did not seek any clarification regarding witness testimony at that hearing. The record also indicates that the Railroad did not made a timely and specific contemporaneous objection to any of the evidence it now challenges on appeal when it was offered during the second trial. We note that in the first trial the Railroad requested and was granted a continuing objection to any witness testimony involving unrelated incidents of violence at the Argentine railway yard. We note that the Railroad did not make a similar objection during the second trial.
We hold under these circumstances that the Railroad has failed to preserve this issue for appeal.
For its final point, the Railroad contends the trial court erred when it refused to allow it to introduce evidence concerning a confrontation between Davila and a police officer. We conclude that this matter has been waived by the Railroad.
The trial court had ruled that any evidence of an altercation or arrest of Davila was inadmissible unless at trial Davila denied any such event. Then, at a sidebar conference the trial court modified its limiting order and told the Railroad's counsel that counsel could ask Davila about any fight. The Railroad's counsel asked no further substantive questions about the incident.
In light of the fact that the trial court modified its prior order, thus permitting a further inquiry into other fights in which Davila had engaged, we will not concern ourselves on appeal with complaints about the terms of the original order before it was modified. This issue has been waived by the Railroad.
Affirmed.