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04/07/94 GARY PRUETT v. NORFOLK AND WESTERN RAILWAY

April 7, 1994

GARY PRUETT, PLAINTIFF-APPELLEE,
v.
NORFOLK AND WESTERN RAILWAY COMPANY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Madison County. No. 89-L-1832. Honorable Nicholas G. Byron, Judge Presiding.

Petition for Leave to Appeal Denied October 6, 1994.

Goldenhersh, Lewis, Rarick*

The opinion of the court was delivered by: Goldenhersh

JUSTICE GOLDENHERSH delivered the opinion of the court:

Defendant, Norfolk and Western Railway Company, appeals from a judgment in favor of plaintiff, Gary Pruett, in an action brought by plaintiff under the Federal Employers' Liability Act (FELA) (45 U.S.C.A. § 51 et seq. (1986)). Defendant contends that (1) the trial court erred in limiting defendant's cross-examination of one of plaintiff's expert witnesses; (2) the trial court erred in directing a verdict against defendant on the issue of plaintiff's contributory negligence; and (3) the trial court erred in refusing to instruct the jury on plaintiff's preexisting back condition. We affirm.

I

This action arose from an injury plaintiff sustained in the courseof his employment for defendant. Plaintiff worked as a switchman for defendant and its predecessor from 1973 until 1988. On December 5, 1988, plaintiff was assigned to work at Luther Yard in St. Louis, Missouri. It was plaintiff's responsibility to throw a Racor 20-C switch to enable an oncoming train to change tracks. As plaintiff attempted to throw the switch, it stuck, causing severe injury to plaintiff's back.

At trial, there was testimony that defendant had received prior complaints about the Racor 20-C model switch which caused plaintiff's injury. There was also evidence that just days before plaintiff's injury another employee of defendant reported problems with the same switch plaintiff used on December 5, 1988. Plaintiff testified that he followed the prescribed technique for throwing the switch, and there was no indication of any problem until the instant the switch stuck. Both plaintiff and Fred Barton, another switchman working on the Luther Yard at the time, testified it was necessary for plaintiff to complete throwing the switch in order to avert a risk of a train derailment.

Dr. James E. Segrist was plaintiff's initial treating physician. He testified that he first saw plaintiff five days after the incident. Dr. Segrist ordered an MRI, which was taken on January 19, 1989. The MRI showed degenerative changes in the lumbar area of plaintiff's spine. Dr. Segrist testified that, in his medical opinion, the degenerative changes antedated the December 5, 1988, injury. Other medical experts, Dr. John Wagner and Dr. David Schreiber, testified that the condition at L5-S1 preexisted the December 5 injury and could have been caused by the normal aging process or a prior injury. Plaintiff testified that before the accident, he had never experienced any pain, nor had he sought treatment for this condition. Since the accident, however, plaintiff has experienced chronic back pain with associated problems in his extremities. As a result of plaintiff's injuries, he was unable to resume his career and will require ongoing therapy.

The jury returned a verdict in favor of plaintiff and awarded him $867,000 in damages.

II

In this appeal, defendant first contends that the trial court erred in limiting its cross-examination of plaintiff's medical expert, Dr. David Schreiber, concerning his bias and financial interest in this case. Specifically, defendant argues that the court improperly precluded defense counsel from refreshing Dr. Schreiber's recollection of: (1) the names and dates of prior testimony given by him in other railroad cases; (2) the frequency with which he has examined, treated, or testified on behalf of the plaintiffs' bar since 1978; and (3) the specific amount he has charged for his deposition testimony since 1978.

On direct examination, Dr. Schreiber testified as to his hourly rate for giving depositions or in-court testimony and the total number of court appearances he has made on behalf of patients represented by plaintiff's attorney's office in the four years prior to this trial.

On cross-examination, Dr. Schreiber testified that he had also testified in two other cases for members of plaintiff's counsel's office, both of which were also against railroad defendants. Dr. Schreiber stated the fees he charged for the last two cases he appeared in, as well as his total charges for his work on the case at bar. He also testified as to the number of years he has ...


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