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March 21, 1995


Appeal from the Circuit Court of St. Clair County. No. 92-L-367. Honorable Jerome F. Lopinot, Judge, presiding.

Presiding Justice Maag delivered the opinion of the court: Chapman, J., with Lewis, J., concurring.

The opinion of the court was delivered by: Maag

PRESIDING JUSTICE MAAG delivered the opinion of the court:

Plaintiff, James Green, filed a one-count complaint under the Federal Employers Liability Act (45 U.S.C. § 51 et seq. (1988)) (FELA) against his employer, Union Pacific Railroad Company (U.P.). He alleged that on November 25, 1991, he was injured when the tread of his boot caught in a metal grating, causing him to injure his knee. Various charges of negligence on the part of his employer were alleged. The U.P. denied that it was negligent and alleged that Green was contributorily negligent, thereby contributing to or causing his own injury. The jury returned a general verdict in favor of Green. U.P. filed a posttrial motion, which was denied. It now appeals.

U.P. first claims that the circuit court erred when it granted a motion in limine filed by Green prohibiting it from referencing, commenting on, or eliciting testimony on the Americans with Disabilities Act (42 U.S.C. § 12101 et seq. (1990)) (ADA). According to U.P., the ADA was a proper subject for testimony and was relevant on the issue of Green's alleged loss of future earning capacity.

We begin the inquiry by determining what was excluded in limine. On the first day of trial, Green made a motion to exclude reference to the ADA. The court granted the motion and ordered that no reference should be made to the ADA. It went on to state in its order that U.P. could present evidence on "the things you can do for him [Green], but leave the Federal Act out." Counsel were then told that when the point was reached where U.P. wanted to "inject" the ADA into the case, the court would hear argument on the issue.

The following day, Green's counsel raised the ADA issue again. He amended his motion to exclude not only specific mention of the ADA but also use of the phrase "reasonable accommodations". It was Green's position that the phrase amounted to "code words" for the ADA. U.P.'s counsel objected and stated: "Saying 'reasonable accommodations', judge, that doesn't point to anything. That doesn't point to the ADA."

The court allowed the motion but again reiterated that the U.P. could present factual evidence about what it could do for Green, such as modifying his workplace or job to "fit his physical problems". U.P.'s counsel sought clarification, asking: "'Reasonable accommodations' those two words cannot come out of the mouths of any of the *** [defense witnesses][?]" (Emphasis added.) The court stated, "That's my ruling."

The next event occurred while Green's counsel was cross-examining a U.P. witness. In an effort to impeach the witness with his deposition testimony, a number of prior questions and answers were read from a deposition. One deposition question included the phrase "absolute accommodation" and another included the word "accommodation". U.P. counsel did not object, but at the conclusion of the cross-examination she argued that the door had been opened. Then, in contradiction of her earlier argument at the hearing on the motion in limine, she claimed that as to "accommodations", "That's a buzz word for the ADA." The court refused to allow evidence of the ADA at that point.

U.P. argues that a court should not exclude, in limine, evidence that is relevant and admissible (citing Bradley v. Caterpillar Tractor Co. (1979), 75 Ill. App. 3d 890, 394 N.E.2d 825, 31 Ill. Dec. 623). Additionally, it argues that each party is entitled to present evidence relevant to its theory of the case (citing Marut v. Costello (1965), 34 Ill. 2d 125, 214 N.E.2d 768). We agree with both propositions. We disagree, however, with the claim that the ADA was relevant and admissible in this FELA case.

As a threshold matter, we believe that the ADA itself precludes its use by the U.P. in this case to limit the damages awarded under the FELA due to loss of future earning capacity. It is beyond dispute that loss of future earning capacity is a proper element of damage under the FELA. ( Bissett v. Burlington Northern R.R. Co. (8th Cir. 1992), 969 F.2d 727, 731; Lewis v. Cotton Belt Route-St. Louis Southwestern Ry. Co. (1991), 217 Ill. App. 3d 94, 116-17, 576 N.E.2d 918, 936, 159 Ill. Dec. 995.) The ADA specifically provides, "Nothing in this Act shall be construed to invalidate or limit the remedies, rights, and procedures of any federal law or law of any state orpolitical subdivision of any state or jurisdiction that provides greater or equal protection for the rights of individuals with disabilities than are afforded by this Act." 42 U.S.C. § 12201(b) (1990).

The avowed purpose for the proposed introduction of evidence concerning the ADA was to diminish Green's claim for damages. Thus, his FELA remedy would be limited in violation of the foregoing provision. This would be true whether Green was claiming a present inability to work or a future inability to work.

The ADA was not intended to diminish other remedies to the injured and disabled. Section 12201(b) of the Act is a concise statement of this fact.

Even in the absence of the foregoing section of the ADA, the evidence would have been inadmissible. The U.P. cites decisions from various jurisdictions that have held evidence of other regulations or standards to be admissible in an FELA case (see, e.g., Albrecht v. Baltimore & Ohio Ry. Co. (4th Cir. 1987), 808 F.2d 329 (OSHA regulations admissible on the issue of negligence); Beissel v. Pittsburgh & Lake Erie Ry. Co. (3d Cir. 1986) (Federal railway regulations admissible in FELA action); Marshall v. Burlington Northern, Inc. (9th Cir. 1983), 720 F.2d 1149 (Railway Safety Act regulations admissible in FELA case)). From these decisions it posits that evidence of the ADA should also be admitted. We disagree.

Evidence of these other statutes and regulations was admitted to assist the trier of fact in its evaluation of the past conduct which was at issue in the case. This past conduct was fixed and certain. The conduct of the plaintiff and defendant may have been disputed, but it is the function of a jury to resolve disputed issues of fact. In the case at bar, the purpose for the proposed introduction of evidence concerning the ADA was, according to U.P.'s brief, to "refute[] plaintiff's claim of possible future unemployment." Clearly what the U.P. was seeking was the opportunity to hypothesize a set of future events that potentially could lead to a claim by Green at some point in the future that he was unable to continue working. Then under this hypothetical set of facts, the U.P. desired to have a witness testify about his understanding of what the ADA would require of it as Green's employer.

If this was allowed, two lawsuits would be taking place at the same time in any FELA or personal injury suit containing a claim of future wage loss or loss of earning capacity. Both an ADA and FELA claim would be simultaneously tried. The court would have to assume the role of fortune teller, because no one knows whether the ADA will be in existence next month, next year, or forever. Will it be amended? Will it be repealed? Who knows? Not this court, not the trial court, and certainly not the plaintiff or defendant.

Compare this situation to the other instances cited by U.P. where regulations and standards have been admitted into evidence, and the difference is readily apparent. Those standards and regulations all were in effect at the time of the event giving rise to the lawsuit. The rules were ...

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