McKahan v. CSX Transp., Inc.McKahan v. CSX Transp., Inc.
Rendered on October 8, 2009
Stege & Michelson Co., LPA, and Andrew J. Thompson, for appellee.
Burns, White & Hickton, LLC, David A. Damico, Ira L. Podheiser and Nicole E. Bazzy, for appellant.
APPEAL from the Franklin County Court of Common Pleas
TYACK, J.
{¶1} Plaintiff-appellee, William E. McKahan, was a veteran railroad employee of defendant-appellant, CSX Transportation, Inc. Towards the end of his employment with CSX, McKahan developed, among other things, carpal tunnel syndrome, which ultimately prevented him from working. He filed suit against CSX for failing to maintain a safe working environment, pursuant to the Federal Employers’ Liability Act (“FELA“). During a jury trial, CSX objected to various trial court rulings over the admissibility of evidence, and jury instructions. The jury ultimately awarded McKahan damages totaling $459,487.64.
{¶2} Appellant, CSX, assigns seven errors for our review:
- THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY NOT GRANTING A JURY INSTRUCTION PERMITTING THE JURY TO APPORTION DAMAGES FOR MCKAHAN‘S INJURIES BASED ON ALL CONTRIBUTING FACTORS, INCLUDING THOSE NOT INVOLVING MCKAHAN‘S CONTRIBUTORY NEGLIGENCE.
- THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY PRECLUDING CSX FROM REFERENCING MCKAHAN‘S RAILROAD EMPLOYMENT PRIOR TO JUNE 1, 1999.
- THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ADMITTING TESTIMONY REGARDING DAMAGES OTHER THAN FOR THOSE CLAIMED IN THE COMPLAINT (BILATERAL CARPAL TUNNEL SYNDROME).
- THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY PERMITTING THE JURY TO HEAR TESTIMONY FROM A CO-WORKER REGARDING MCKAHAN‘S ALLEGED LOST WAGES DAMAGES.
- THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ADMITTING THE EXPERT TESTIMONY OF MCKAHAN‘S EXPERT WITNESSES, GERALD ROSENBERG AND MICHAEL SHINNICK, AND COMPOUNDED THIS ERROR BY REFUSING TO GRANT A DAUBERT HEARING.
- THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY REFUSING TO GRANT CSX‘S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT.
- THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN NOT GRANTING A NEW TRIAL, OR REMITTING THE VERDICT, DUE TO THE EXCESSIVENESS OF THE VERDICT.
{¶4} The first assigned error concerns the trial court‘s refusal to allow one of appellant‘s proposed jury instructions—concerning the apportionment of damages related to McKahan‘s comparative negligence.
{¶5} Under the FELA, a railroad is liable for damages to any person who suffers an injury while in the railroad‘s employ, provided that the injury is the result, in whole or in part, of the railroad‘s negligence. Gallick v. Baltimore & Ohio R.R. Co. (1963), 372 U.S. 108, 116, 83 S.Ct. 659. If there is evidence that any employer negligence caused the harm, or enough to justify the jury‘s determination that employer negligence played a role in producing harm, it is error to refuse to accept the jury‘s verdict against a railroad in a suit under FELA,
{¶6} The only exceptions to the employer‘s liability are: 1) the employee‘s own (contributory) negligence; and 2) situations where the employer‘s negligence causes an injury that is better classified as the aggravation of a pre-existing condition. See Norfolk & Western Ry. Co. v. Ayers (2003), 538 U.S. 135, 159–60, 123 S.Ct. 1210;
{¶7} In this case, the jury found that McKahan was five percent negligent, and the damage award was reduced appropriately. The railroad proffered other theories about how McKahan developed carpal tunnel—that he allegedly suffered from some underlying neurological disorder, he was old, and was a heavy drinker. The jury ultimately determined, however, that the railroad was 95 percent responsible for McKahan‘s injuries. Thus, the trial court followed applicable law in charging the jury, allowing it to apportion five percent of the negligence to the plaintiff. We do not see any evidence that the trial court abused its discretion with regard to the jury instruction at issue.
{¶8} The first assignment of error is overruled.
{¶9} In the second assigned error, appellant challenges one of the trial court‘s evidentiary rulings on its motion in limine relating to McKahan‘s pre-1999 employment record. A motion in limine is preemptive trial tactic that elicits a ruling to either exclude or admit certain evidence, usually on the basis of unfair prejudice. See, e.g., Illinois Controls, Inc. v. Langham (1994), 70 Ohio St.3d 512, 526; State v. Black, 172 Ohio App.3d 716, 719, 2007-Ohio-3133. As the decision to admit or exclude evidence is squarely left to the discretion of the trial court, we will not disturb a trial court‘s ruling on a motion in limine absent an “abuse of discretion that amounted to prejudicial error.” Id.
{¶10} Appellant has not demonstrated that the trial court abused its discretion in this regard, and in fact, has failed to cite any case law, or present any cogent legal argument in support of this assigned error, as required by
{¶11} The third assignment of error is also evidentiary in nature. Here, appellant argues that the trial court‘s admission of testimony regarding damages not specifically described in the complaint was unfairly prejudicial. Although appellant makes a cursory citation to
{¶12} The third assignment of error is overruled.
{¶13} The fourth assignment of error, also evidentiary in nature, concerns the trial court‘s decision allowing a non-expert witness to testify about McKahan‘s lost wages. The abuse of discretion standard of review applies here, too. See Miller v. Bike Athletic Co. (1998), 80 Ohio St.3d 607, 616.
{¶14} Expert testimony is intended to “assist the trier of fact in determining a fact issue or understanding the evidence.” Id. at 611. According to
{¶15} Here, the trial court allowed McKahan to present evidence of his lost wages using a lay, or fact witness, who was one of his co-workers. Appellant argues that this was unfairly prejudicial because the fact witness McKahan presented “had a differing work schedule and earnings history.” (Appellant‘s Brief, at 17.) Although appellant
{¶16} Simply because litigants often hire experts to proffer opinions and testimony concerning lost wages, does not mean that such an expert witness is necessary or required. Relevant evidence is that which tends to make any fact at issue either more probable or less probable than without considering the evidence. The trial court found that McKahan‘s witness had personal knowledge of the fact(s) at issue, and that the witness was competent to testify; thus, the court allowed the testimony.
{¶17} The fourth assignment of error is overruled.
{¶18} Appellant‘s final evidentiary challenge is in the fifth assignment of error, which asserts that the trial court erred by admitting McKahan‘s expert witnesses, Drs. Rosenberg and Shinnick. “In so doing, the trial court clearly abdicated its gatekeeper function, which is to prevent the jury from considering unscientific junk science.” (Appellant‘s Brief, at 18.) Again, we review for abuse of discretion. See Miller, supra.
{¶19} Here, appellant sets forth the basic case law concerning the qualification of expert witnesses, citing Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993), 509 U.S. 579, 596, 113 S.Ct. 2786, and its Ohio equivalent, Miller, supra. Again, appellant fails to demonstrate how the trial court abused its discretion in qualifying these experts. Appellant takes issue with Dr. Shinnick‘s qualifications by attacking the fact that he is not a medical doctor, and that he could not testify as to the medical causes of McKahan‘s injuries. Dr. Shinnick, however, is an expert in ergonomics, and did not opine on medical evidence per se. By contrast, McKahan‘s other medical expert, Dr. Rosenberg, is a
{¶20} Accordingly, we overrule the fifth assignment of error.
{¶21} In the seventh assigned error, appellant argues that the trial court abused its discretion by denying the railroad‘s request for a new trial, based on “excessiveness of the verdict.” Again, we review for an abuse of discretion. See Malone v. Courtyard by Marriott L.P. (1996), 74 Ohio St.3d 440, 448.
{¶22} Under
{¶23} The railroad‘s argument that the jury‘s verdict is not supported by the evidence is based entirely on McKahan‘s presentation of evidence of lost wages. (Appellant‘s Brief, at 24.) The argument here is essentially the same as the fourth
{¶24} The seventh assignment of error is overruled.
{¶25} In the sixth assignment of error, the railroad argues that the trial court erred by denying appellant‘s motion for judgment notwithstanding the verdict (“JNOV“), pursuant to
{¶26} As with motions for directed verdict, JNOV motions present purely legal questions, which test the sufficiency of the evidence supporting the verdict. Id.; see also Wagner v. Roche Laboratories, 77 Ohio St.3d 116, 119, 1996-Ohio-85. Thus, on appeal, we consider neither the weight of the evidence, nor the credibility of the witnesses. If there is substantial, competent evidence to support the verdict, or non-moving party, evidence upon which reasonable minds might reach different conclusions, the motion must be denied. Id. (quoting Kellerman v. J.S. Durig Co. (1964), 176 Ohio St. 320).
{¶27} Appellant‘s argument that the verdict should be set aside is based on an alleged minor inconsistency in the jury interrogatories: “When the jurors returned their answers to interrogatories, five (5) jurors had found both parties negligent; however, one (1) of them found only CSX negligent, and did not find McKahan negligent (the other two
{¶28} Appellee is correct in stating that the general rule in this circumstance is that any objection to an inconsistency between a general verdict and a jury interrogatory is waived unless it is made before the court discharges the jury. Cooper v. Metal Sales Mfg. Corp. (1995), 104 Ohio App.3d 34, 42. The reasoning for this rule is that in situations where an inconsistency is present, the best option is to recall the jury, so that they may clarify their position. Id. (citing Shaffer v. Maier, 68 Ohio St.3d 416, 1994-Ohio-134). By waiting until after the jury has been discharged, this best option is no longer available to the trial court.
{¶29} Here, the trial transcript makes clear that appellant‘s counsel did not make any sort of objection after polling the jury, and both counselors agreed that the jury be discharged. (Tr. 156–57.) Thus, appellant‘s first objection to the jury‘s interrogatories was presented in its motion JNOV. Appellant‘s argument was therefore waived.
{¶30} Even if we were to assume that appellant had properly preserved this argument for appeal, appellant has still failed to demonstrate that the trial court should have granted its motion. Eight jurors found the railroad negligent; six of those finding that the railroad‘s negligence was the cause of McKahan‘s injuries. Those same six jurors agreed on an apportionment of liability, and award of damages, and signed the general verdict form for McKahan. Appellant argues that because one of the jurors signed interrogatory No. 4 (plaintiff‘s causation), but not interrogatory No. 3 (plaintiff‘s negligence), that the verdict should somehow be disregarded or thrown out, as though it
{¶31} Appellant has failed to demonstrate reversible error with regard to its JNOV motion, and we therefore overrule the sixth assignment of error.
{¶32} Having overruled all seven assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
CONNOR, J., concurs.
SADLER, J., concurs separately.
SADLER, J., concurring separately.
{¶33} While I concur in the disposition of appellant‘s assignments of error, I write separately to explain my rationale for overruling the fourth and seventh assignments of error.
{¶34} Under the facts of this case, evidence quantifying appellee‘s past lost wages was not “beyond the knowledge or experience possessed by lay persons” and there was no demonstrated need to “dispel[ ] a misconception common among lay persons” about the subject.
{¶35} With respect to the seventh assignment of error, it is important to note that the jury‘s damages award consists of $109,487.64 for past lost wages and $350,000 for pain, suffering, emotional distress, and loss of quality of life. Appellant argues that both awards were not sustained by the weight of the evidence (pursuant to
{¶36} With respect to the pain-and-suffering award, appellant‘s brief contains no specific argument as to why this award is not sustained by the weight of the evidence. The award encompassed both past and future pain and suffering. ” ‘[P]ain and suffering are subjective feelings, [and] the injured person‘s testimony is the only direct proof of such damages. * * * Therefore, lay testimony is sufficient by itself to prove past pain and suffering damages.’ ” Barker v. Netcare Corp., 147 Ohio App.3d 1, 18, 2001-Ohio-3975, quoting Youssef v. Jones (1991), 77 Ohio App.3d 500, 505. Both appellee and his wife testified about appellee‘s pain, suffering, and loss of quality of life. “Generally in the case
{¶37} Appellant also argues that the pain-and-suffering award is grossly excessive and was given under the influence of passion or prejudice, but points to no evidence to support this claim. In considering a motion under
{¶38} For all of the foregoing reasons, I concur in the disposition of appellant‘s fourth and seventh assignments of error. I likewise concur in the disposition of the remaining assignments of error.
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