Kossman, Brian v. Northeast IL Regiona ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-2255
BRIAN A. KOSSMAN,
Plaintiff-Appellee,
v.
NORTHEAST ILLINOIS REGIONAL COMMUTER RAILROAD
CORPORATION, doing business as Metra/Metropolitan
Rail,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 96 C 8045--Arlander Keys, Magistrate Judge.
Argued January 12, 2000--Decided May 2, 2000
Before POSNER, Chief Judge, COFFEY and RIPPLE,
Circuit Judges.
COFFEY, Circuit Judge. Brian Kossman brought
this action against his employer, Northeast
Illinois Regional Commuter Railroad d/b/a Metra
(Metra), pursuant to the Federal Employers’
Liability Act, 45 U.S.C. sec. 51 et seq. (FELA),
claiming that he suffered a shoulder injury in
the course of his employment while unloading
supplies from a delivery truck. After trial, the
jury returned a verdict for Kossman in the amount
of $304,000,/1 Metra moved for judgment as a
matter of law or, in the alternative, for a new
trial. The court/2 denied the motions and Metra
appeals. We affirm.
I. BACKGROUND
The facts of this case are quite simple.
Kossman, employed as an "extra clerk"/3 for
Metra, was directed, on September 9, 1994, to
assist in the unloading of a truck which had come
in with 55-gallon barrels of cleaning supplies on
pallets; a task he had done approximately fifty
times in the past. According to Kossman, this
load was unusual in that, instead of each pallet
containing a single 55-gallon barrel, some of the
pallets in this shipment contained as many as
three 55-gallon barrels.
The employees were assisted in removing and
transporting the pallets from the bed of the
delivery truck to the warehouse by a pallet jack.
A pallet jack is a four-wheeled, hydraulic lift
device designed for lifting and moving heavy
loads from one location to another. To move a
pallet, the forks of the jack are placed under
the top deck of the loaded pallet, and the
hydraulic lift, when activated, raises the pallet
off the floor. The jack (now with the loaded
pallet) is then normally rolled off the bed of
the truck and onto the loading dock.
While Kossman was in the process of unloading
the cleaning supplies, the forks of the jack
became locked, in an unmovable position, under a
pallet loaded with three 55-gallon barrels. As
Kossman attempted to free the jack, he "kind of
heard a little pop or crack [in his shoulder],
but [he] didn’t really think anything of it at
the time because it [sic] wasn’t immediate pain."
After he unsuccessfully attempted to free the
jack, Kossman asked one of his co-workers for
assistance, and the two men eventually freed the
jack, but Kossman still faced other obstacles; a
3-6 inch vertical space existed between the
truck’s unloading gate and the dock./4
In order to unload the pallets, as Kossman was
required to do that day, employees are forced to
make a running jump with the loaded pallet jack,
leaping from the truck bed to the dock below.
Because of the configuration of the dock, the
employees are then forced to make an immediate
and sharp turn to avoid crashing into, or flying
over, a railing on the other side of the loading
dock. As Kossman attempted to perform this
maneuver with the jack holding the three 55-
gallon barrels, he "just felt a strain, like I
had pulled a muscle or something."
Immediately after the incident Kossman only felt
like he had a muscle strain, but the next day his
arm "was totally immobilized" and he "couldn’t
move it at all" because of the pain and
discomfort. Kossman visited the company doctor
and was immediately "taken out of service."
Because Kossman’s pain continued, he went to an
orthopedic surgeon and was directed to undergo
arthroscopic surgery on his shoulder; a procedure
he had twice, once in 1995 and again in 1998.
Despite these surgeries and physical therapy, and
although he has now regained some of the lost
range of motion in his shoulder, Kossman "is
never comfortable" and is still unable to return
to work and perform his usual duties, and has yet
to return to any form of employment./5
Based on the injury suffered while unloading
the barrels of cleaning supplies, Kossman filed
this action against Metra alleging that Metra
failed to provide him with a safe place to work
by: 1) failing to adopt and implement a safe
method and procedure for unloading supplies; 2)
failing to provide adequate equipment; 3)
assigning him work that was beyond his known
physical ability; 4) failing to provide
sufficient personnel to unload the supplies; 5)
improperly training him to use unsafe methods; 6)
improperly supervising him; 7) failing to
properly secure the loading pallet; and 8)
failing to exercise ordinary care to provide him
with a safe place to work. The complaint alleged
that one or more of the foregoing negligent acts
or omissions caused, in whole or in part,
Kossman’s shoulder injury.
Because neither party requested a special
verdict, the trial judge allowed the jury to
return a general verdict for Kossman (without
answering any interrogatories). After the jury
awarded Kossman $304,000, Metra moved for
judgment as a matter of law or, in the
alternative, for a new trial.
With respect to Kossman’s claim that Metra
failed to adopt and implement a safe method and
procedure for unloading the pallets from the
truck, the trial judge concluded that Kossman did
provide sufficient evidence to support the jury’s
verdict. The court reasoned that
the jury, viewing Plaintiff’s [evidence] and
using its own common sense, could have concluded
that pushing and pulling a five-foot-long pallet
jack loaded with from 1200 to 1500 pounds of
cargo at a speed that would allow the jack to
jump a three- to six-inch gap and require the
jack operator to quickly turn the handle, upon
landing, to avoid being thrown into or over the
railing, which was located about five feet from
where the pallet landed, was unreasonably unsafe.
Based on the evidence presented in the case, this
is the only theory on which the jury could have
supported its decision, and it is not an
unreasonable one.
The magistrate judge then denied Metra’s motions
for judgment as a matter of law and for a new
trial. Metra appeals.
II. ISSUES
On appeal Metra argues that the district court
erred in: 1) denying its motions for judgment as
a matter of law and for a new trial; and 2)
informing the jury that Kossman was ineligible
for worker’s compensation benefits.
III. ANALYSIS
A. The FELA
FELA, enacted in 1908, provides a federal tort
remedy for railroad employees, such as Kossman,
injured on the job. See Williams v. National
Railroad Passenger Corp., 161 F.3d 1059, 1061
(7th Cir. 1998). Unlike worker’s compensation
statutes, FELA requires Kossman to prove
negligence on the part of Metra. See id. However,
the Supreme Court has held that the negligence
standard is relaxed in FELA cases and a
plaintiff, in order to get his case to the jury,
need only produce evidence which demonstrates
that the "’employer[’s] negligence played any
part, even the slightest, in producing the injury.’"
Consolidated Rail Corp. v. Gottshall, 512 U.S.
532, 543 (1994) (quoting Rogers v. Missouri
Pacific R. Co., 352 U.S. 500, 506 (1957)). A
plaintiff, therefore, carries a lighter burden in
a FELA action than in an ordinary negligence
case. See Harbin v. Burlington Northern Ry. Co.,
921 F.2d 129, 132 (7th Cir. 1990) (noting
examples of FELA actions submitted to jury based
only upon "evidence scarcely more substantial
than pigeon bone broth"). Furthermore, courts
"have interpreted [FELA] liberally in light of
its humanitarian purposes." Williams, 161 F.3d at
1061 (citing Metro-North Commuter R. Co. v.
Buckley, 521 U.S. 424, 429 (1997)).
All this being true, FELA "is not an insurance
statute." Gottshall, 512 U.S. at 554. A plaintiff
bringing an action under FELA "who fails to
produce even the slightest evidence of
negligence" should not be permitted to go to
trial. Williams, 161 F.3d 1061-62. In other
words, a plaintiff who brings a successful claim
under FELA must establish that the defendant
breached its duty by demonstrating that "a
reasonable person would foresee [the alleged
circumstances] as creating a potential for harm."
McGinn v. Burlington Northern R.R. Co., 102 F.3d
295, 300 (7th Cir. 1996). Given the plaintiff
friendly nature of FELA, it is easy to understand
why the trial judge did not commit error when
denying Metra’s motions for judgment as a matter
of law and for a new trial.
B. Motions for Judgment as a Matter of Law and for
a New Trial
As stated previously, Metra challenges the
district court’s denial of its post-trial motions
for judgment as a matter of law or,
alternatively, for a new trial. We review the
denial of a motion for judgment as a matter of
law de novo. See Tincher v. Wal-Mart Stores,
Inc., 118 F.3d 1125, 1129 (7th Cir. 1997).
Judgment as a matter of law may be entered where
"there is no legally sufficient evidentiary basis
for a reasonable jury to find for [a] party on
[an] issue." Fed. R. Civ. P. 50. Furthermore,
this Court must, after reviewing the record and
drawing all reasonable inferences in the light
most favorable to Kossman, determine whether the
verdict is supported by sufficient evidence. See
Tincher, 118 F.3d at 1129. Although we review the
denial of a motion for judgment as a matter of
law de novo, our review of the denial of Metra’s
motion for a new trial is under the abuse of
discretion standard. See Robinson v. Burlington
Northern R.R., 131 F.3d 648, 656 (7th Cir. 1997).
Additionally, we will not overturn a jury’s
verdict "[a]s long as there is a reasonable basis
in the record to support it." Id.
In the present case, Kossman was directed to
unload cleaning supplies from a truck parked at
the loading dock, and consistent with Metra’s
policy, Kossman was required to push and pull a
five-foot-long pallet jack loaded with three 55-
gallon drums that weighed approximately 1200 to
1500 pounds. In order to accomplish the unloading
of these pallets, Kossman was forced to pull the
load with enough speed so as to allow the
hydraulic jack, holding the loaded pallet, to
jump a three- to six-inch space./6 Kossman,
after generating the necessary speed to jump the
gap and land on the loading dock, was also
required to make an immediate and sharp turn in
order to avoid being catapulted into, or going
over, the railing which was located a mere five
feet from the point where the loaded jack left
the truck. The jury was well within its
discretion to conclude that this was a most
unsafe practice and that Metra should have
foreseen that such an unloading practice could
result in an injury. We are also of the opinion
that with the information cited above in the
record there is more than a reasonable basis in
the record to support the jury’s conclusion that
Kossman was injured when he was unloading the
loaded pallets from the truck in the manner
described above because of Metra’s failure to
adopt and implement a safe method and procedure
for unloading the pallets from the truck.
Accordingly, we agree with the trial judge that
Metra was not entitled to judgment as a matter of
law.
Metra also attacks the jury verdict, claiming
that it should have been given a new trial
because the evidence was insufficient to support
the jury’s verdict and the damages awarded to
Kossman were excessive.
With respect to the claim that there was
insufficient evidence presented to the jury to
support its verdict, we are of the opinion that
the evidence before the jury, described above,
did, in fact, provide more than a sufficient
basis for a reasonable jury to return a verdict
for Kossman. This is especially true because even
though some of the issues presented to the jury
were later ruled to be legally insufficient,
Metra, for reasons unexplained, failed to request
a special verdict or a general verdict with
answers to written interrogatories. Because the
defendant never requested any special form of
verdict, the jury only returned a general verdict
for Kossman. And when a jury only returns a
general verdict, we need only find support in the
record for one of the theories presented to the
jury in order to affirm the jury award. See,
e.g., Wassel v. Adams, 865 F.2d 849, 855 (7th
Cir. 1989); Culli v. Marathon Petroleum Co., 862
F.2d 119, 123 (7th Cir. 1988).
As detailed above, the jury was provided with
sufficient evidence to reasonably conclude that
the procedure Kossman was required to employ in
order to remove pallets loaded with three 55-
gallon barrels was unreasonably dangerous and
that an injury, such as the one suffered by
Kossman, was or should have been foreseeable to
Metra. We thus refuse to hold that the district
court abused its discretion in refusing to grant
Metra a new trial based on the sufficiency of the
evidence.
As noted above, the jury awarded Kossman
$100,000 for loss of future income. Metra claims
that because this award was against the manifest
weight of the evidence, the judge abused his
discretion in denying its motion for a new trial.
However, we will not reverse an award of damages
for lost wages because of questionable
assumptions unless it yields an unreasonable
result. See O’Shea v. Riverway Towing Co., 677
F.2d 1194, 1201 (7th Cir. 1982). Indeed, "[a]
trial judge may vacate a jury’s verdict for
excessiveness only when the award was monstrously
excessive or the award had no rational connection
to the evidence." Debiasio v. Illinois Central
R.R., 52 F.3d 678, 686 (7th Cir. 1995) (citations
and internal quotations omitted).
On appeal, Metra claims that the award of
$100,000 for loss of future earnings was
excessive and against the manifest weight of the
evidence because: 1) the injury was not as severe
as Kossman claimed; and 2) Kossman’s "vocational
economist" should not have been allowed to
testify.
In order to support its claim that Kossman
exaggerated the severity of his injury, Metra
argues that there was a general "lack of
truthfulness throughout this case" by Kossman as
evidenced by the fact that Kossman had lied on
his employment application and at a deposition
when asked about previous felony convictions.
Metra also points to the surveillance videos
taken of Kossman while he was at the beach which
demonstrate, according to Metra, that Kossman did
not suffer any severe injuries.
The problem with Metra’s arguments is that the
jury had all this information before it and chose
to credit the testimony of Kossman and the fact
that he had already undergone two arthroscopic
surgeries on his shoulder as a result of the
injury he suffered during the course of his
employment with Metra and was preparing to have
a third. And as we have long held,
[w]e will not second-guess a jury on credibility
issues. While this court’s review is confined to
the "cold pages" of an appellate transcript, the
jury had an opportunity to observe the verbal and
non-verbal behavior of the witnesses, including
the subject’s reactions and responses to the
interrogatories, their facial expressions,
attitudes, tone of voice, eye contact, posture
and body movements . . . . [I]t is not the task
of this appellate court to reconsider the
evidence or assess the credibility of the
witnesses.
Hasham v. California State Bd. of Equalization,
200 F.3d 1035, 1047 (7th Cir. 2000) (citing
United States v. Hickok, 77 F.3d 992, 1006 (7th
Cir. 1996)).
The simple fact is that the jury had every
opportunity to review, observe, and digest the
video that Metra offered into evidence showing
Kossman engaging in activity which allegedly was
inconsistent with his claimed injury. Metra also
introduced into evidence the fact that Kossman
had lied on his employment application and at a
deposition when asked about previous felony
convictions. Despite all this, the jury still
chose to credit Kossman’s testimony, and we are
of the opinion that Kossman’s testimony and
evidence was not so lacking as to prohibit the
jury from relying on his testimony, and we
therefore decline Metra’s invitation to revisit
credibility determinations made by the jury. Nor
is the award of $100,000 for loss of future
income so outrageous as to be excessive. We are
convinced that Metra is not entitled to a new
trial based on Kossman’s testimony being
insufficient to support the jury’s award of
damages.
Metra also claims that the judge erred in
admitting the testimony of Kossman’s "vocational
economist," Stanley Hunton, because he was
without the necessary "education, training, or
experience which would allow him to testify as to
the plaintiff’s economic loss or the present
value required to replicate the plaintiff’s
claimed economic loss." However, Metra’s argument
addressing this issue is inadequate to preserve
the issue for review because, in an argument that
spans less than one page in length and contains
only one case citation, Metra merely makes a
general statement that Hunton was unqualified to
testify, but does not articulate what standard
the trial judge should have used or what contrary
evidence it put forth as to the plaintiff’s loss
of future earnings. See Tyler v. Runyon, 70 F.3d
458, 466 (7th Cir. 1995) ("This court has no duty
to research and construct legal arguments
available to a party."); Ehrhart v. Secretary of
Health and Human Serv., 969 F.2d 534, 537 n. 5
(7th Cir. 1992) ("[C]ompelling the court to take
up a burdensome and fruitless scavenger hunt for
arguments is a drain on its time and
resources."). Metra’s bare accusation that the
award was too high is not enough to call into
question the judge’s decision to allow Hunton to
testify. Furthermore, Metra merely makes
reference to arguments made in its motion in
limine to the district court, a practice that is
disfavored. See generally Fed. R. App. P.
28(a)(6). Because Metra failed to adequately
address the issue of Hunton’s ability to testify
at trial in its brief, we hold that Metra has
waived this issue. Consequently, we do not
consider this issue any further.
C. Worker’s Compensation
Metra’s final argument on appeal is that the
district court erred in informing the jury that
Kossman was ineligible for worker’s compensation.
When the subject of Kossman’s ineligibility came
up before trial, the court informed the parties
that it planned on telling the jury that "you may
wonder why Kossman is suing Metra for an injury
that is normally covered by workmen’s
compensation. Well, in most cases railroad
employees are not covered by workmen’s
compensation and must file a suit under [FELA] in
order to be compensated." It is important to
point out that before the magistrate judge
informed the jury of the unavailability of
worker’s compensation, he specifically asked the
respective counsel for Metra and for Kossman if
such language was acceptable, and both responded,
"[t]hat’s fine."
Given that counsel for Metra not only failed to
object to this approach by the district court,
but affirmatively supported the judge informing
the jury that Kossman was ineligible for worker’s
compensation benefits, we are of the opinion that
Metra has waived this issue on appeal. See, e.g.,
United States v. Durman, 30 F.3d 803, 810 (7th
Cir. 1994).
Consequently, the decision of the district court
is
AFFIRMED.
/1 The jury’s general verdict stated that Metra
should pay $50,000 for disability, $0 for
disfigurement, $50,000 for pain and suffering,
$104,000 for loss of past earnings, and $100,000
for present value of future lost earnings.
/2 By agreement of the parties, the case was
assigned to Magistrate Judge Arlander Keys.
/3 As an "extra clerk," Kossman performed a variety
of jobs, including assisting passengers through
the gates and with train information, ticket
collection, maintenance, snow clearing, spreading
salt, delivering packages, janitorial services,
and occasionally unloading trucks.
/4 The hydraulic gate at the back of the truck was
lowered toward the loading dock but the hydraulic
gate did not fit flush with the floor of the
loading dock. As Kossman’s supervisor, James
Simpson, testified, the gap was "a couple of
inches at least."
/5 We note that Metra introduced a series of
surveillance videos of Kossman taken on the beach
in 1996 after he was supposedly completely
disabled from work and suffering some
disfigurement in his shoulder. The videos,
according to Metra, portray the plaintiff walking
on the beach without a shirt and Kossman seems to
be engaging in "normal recreational activities,"
unrestricted use of his left shoulder, and no
evidence of Kossman’s alleged disfigurement of
the shoulder (one side being lower than the
other) is displayed.
/6 Simpson admitted that, "I know they had to pull
it pretty fast. . . . Two men had to push, and
the other had to pull. It had to be a coordinated
effort."