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Lenora Rodriguez v. Northeast Illinois Regional Commuter Railroad Corporation

January 24, 2012

LENORA RODRIGUEZ,
PLAINTIFF-APPELLANT,
v.
NORTHEAST ILLINOIS REGIONAL COMMUTER RAILROAD CORPORATION, D/B/A METRA/METROPOLITAN RAIL, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. No. 07 L 1708 Honorable James P. Flannery, Judge Presiding.

The opinion of the court was delivered by: Justice Connors

JUSTICE CONNORS delivered the judgment of the court, with opinion.

Presiding Justice Quinn and Justice Cunningham concur in the judgment and opinion.

OPINION

¶ 1 Plaintiff Lenora Rodriguez sued defendant Metra, her employer, under the Federal Employers' Liability Act (45 U.S.C. § 51 (2006)). A jury awarded her over $100,000 in damages for lost wages and pain and suffering, but awarded nothing for disability. On appeal, she contends that the jury's verdict is legally inconsistent and against the manifest weight of the evidence and seeks a new trial on damages limited to the issue of disability. Rodriguez also contends that the trial court erred in limiting the scope of the redirect examination of her medical expert notwithstanding the fact that the topic was addressed in cross-examination. For the following reasons, we affirm the judgment of the circuit court.

¶ 2 I. BACKGROUND

¶ 3 Rodriguez began working as an assistant conductor for Metra in 2005. Primarily, her job involved taking tickets on passenger trains. Her position also required her to "throw switches" at the train yard at the beginning and end of her shift, which means pulling and pushing the levers that change the direction of the railroad tracks. Throwing switches can require conductors to exert up to 100 pounds of force.

¶ 4 On August 27, 2006, Rodriguez was assigned to work as a switch tender, exclusively throwing switches to redirect trains as they approached a work zone. At the end of the work day, a switch got "hung up" and required Rodriguez to exert more force to push the lever down. She then heard something "pop" and felt pain radiating through her back and left shoulder. She reported the incident to her supervisor and saw Metra's doctor, Dr. Stephen Hartsock, the next day. After an initial examination and MRI, Rodriguez was diagnosed as having a "small, full-thickness tear" of her rotator cuff.

¶ 5 Rodriguez filed this lawsuit against defendant in February of 2007 under the Federal Employers' Liability Act (FELA) (45 U.S.C. § 51 (2006)), alleging that Metra negligently failed to provide her with a safe workplace because it did not properly maintain the switch equipment that caused her injury. After trial, a jury found in favor of Rodriguez on liability. The verdict form instructed the jury to indicate the total amount awarded to Rodriguez and to itemize the damages according to past and future disability, past and future pain and suffering, and past and future lost wages and benefits. The jury awarded Rodriguez a total of $107,000, itemized as $75,000 for pain and suffering and $32,000 for lost wages. It awarded nothing for disability.

¶ 6 Rodriguez's first argument on appeal is that she is entitled to a new trial on disability damages because the jury's verdict was legally inconsistent and against the manifest weight of the evidence. The following testimony relevant to the issue of disability damages was adduced at trial.

¶ 7 Rodriguez called Dr. Dennis Gates to testify as an expert in orthopedic surgery. Although Dr. Gates never examined Rodriguez, he reviewed all of the medical records prepared by each physician or surgeon Rodriguez saw and prepared a chart summarizing those records. Dr. Gates testified to the dates of each visit, a brief description of what occurred, and any relevant notes made by the doctors. He testified that at Rodriguez's first medical visit the day after her shoulder injury, Dr. Hartsock restricted her to sedentary work. About a week later, Dr. Hartsock told Rodriguez to stop working altogether and begin physical therapy.

¶ 8 About a month later, Rodriguez was referred to Dr. James Davis, an orthopedist. Dr. Davis noted that Rodriguez's range of motion had increased and he told Rodriguez that she could return to work as a conductor but limited the activities that she could perform.

¶ 9 Rodriguez also saw Dr. Hartsock again at this time. Dr. Gates testified that there was some "confusion" in Dr. Hartsock's notes for the visit. Dr. Hartsock indicated that he told Rodriguez to "continue light duty[, but] Dr. Davis hadn't really mentioned that." Nevertheless, Dr. Gates testified, Rodriguez was "on light duty, which means no lifting over 20 pounds and nothing overhead." Dr. Hartsock also ordered an MRI, which revealed that Rodriguez had a "small but full-thickness tear of the rotator cuff." Dr. Gates also testified that the tear shown on the MRI was consistent with Rodriguez's description of pushing the switch with an outstretched arm.

¶ 10 Dr. Hartsock then referred Rodriguez to Dr. Brian Cole, an orthopedic surgeon, for a consultation. Dr. Cole ultimately concluded that Rodriguez would need surgery to repair the rotator cuff tear and he performed the surgery in December of 2006. On May 21, 2007, about five months after the surgery, Dr. Cole released Rodriguez to return to work as a conductor without restrictions. She continued physical therapy and took pain medication at that time.

¶ 11 Dr. Gates testified that Rodriguez returned to Dr. Cole in July of 2007 complaining of pain in her left shoulder. Dr. Cole told her that she would continue to experience some discomfort for a while. Rodriguez continued to work, although she called in sick on days that she felt great pain. On January 14 or 15, 2008, after Rodriguez threw a switch, her left shoulder got stiff and she could not move it. Rodriguez saw Dr. Hartsock the next day. He again restricted Rodriguez to light-duty work, lifting no more than 10 pounds.

¶ 12 Dr. Gates testified that Rodriguez got a second opinion from another orthopedic surgeon, Dr. David Smith, about a month later. Dr. Smith ordered another MRI. Dr. Gates testified that a radiologist concluded that Rodriguez had a possible partial-thickness tear of the rotator cuff. Dr. Smith noted inflammation around the tendon.

¶ 13 Rodriguez returned to Dr. Cole in April of 2008 and provided him with Dr. Smith's MRI. Dr. Cole directed Rodriguez to undergo a functional capacity examination (FCE), which compares Rodriguez's physical abilities to the requirements of her job as a conductor. Ridge Rehab conducted Rodriguez's FCE in May of 2008. Among other things, Rodriguez's job required her to lift and carry 10 to 20 pounds occasionally, push and pull up to 100 pounds, and reach overhead occasionally. Rodriguez could lift and carry 10 to 20 pounds, but her "deficit was in pushing and pulling 100 pounds." The FCE concluded that Rodriguez could perform light-duty work, but could not return to work as a conductor.

¶ 14 Dr. Gates then testified that Rodriguez returned to Dr. Smith about a week after performing the FCE. She continued to complain of constant pain in her shoulder. According to Dr. Gates, Dr. Smith reviewed the FCE and concluded that Rodriguez "was at MMI," meaning she had reached her maximum medical improvement and her shoulder would not get any better. Dr. Smith concluded that Rodriguez could not return to work as a conductor. He also stated that Dr. Cole could be of no further assistance to her.

¶ 15 Dr. Gates then testified that in his opinion, Rodriguez had a torn rotator cuff repaired by surgery and she possibly tore her rotator cuff again after surgery. Dr. Gates also testified that in his opinion, "[i]t seemed reasonable" that Rodriguez's injuries were caused by the accident that occurred in August of 2006 when she was throwing switches. Dr. Gates opined that Rodriguez's prognosis was "guarded[,] which simply means that things aren't going the best. We don't really know what's going to happen. I thought that most likely she's going to need an arthroscopic evaluation to look inside the shoulder again with a telescope and to clean out whatever is there but we really don't know." He also opined that she would need physical therapy in the future and, more likely than not, occasional cortisone injections.

¶ 16 Dr. Gates then testified that in his opinion, Rodriguez has a disability as a result of her injury, surgery, and treatment. He defined disability as "the inability to perform certain actions usually in regard to [one's] work status." He stated that in his opinion, Rodriguez's disability is that she can perform "the light level of work which means that she could not return to her duties as a conductor."

¶ 17 On cross-examination, Dr. Gates acknowledged that he had a copy of the conductor's job description prepared by Metra at the time that he issued his expert report. He acknowledged that the job description says that a conductor must be able to exert 30 to 100 pounds of occasional push force to throw a switch. The job description also stated that "overall this job would be classified as light in physical demand according to the Department of Labor Dictionary of Occupational Titles." Dr. Gates also acknowledged that in January of 2008, Dr. Hartsock twice described Rodriguez's complaints of pain as "out of proportion" with her physical examination and "inconsistent."

¶ 18 Dr. Gates was then shown a report issued to another one of Rodriguez's doctors by Accelerated Rehabilitation Center stating that as of July 16, 2009, Rodriguez was experiencing no pain in her left shoulder and she was successfully discharged from rehabilitation.*fn1

Rodriguez's counsel sent a copy of that report to Metra along with a letter requesting that Metra consider returning Rodriguez to her position as a conductor. Dr. Gates was asked whether the information contained in the report would change any of his opinions. Dr. Gates testified that "reading this whole letter over here and not just the paragraph you mentioned [about experiencing no pain in her shoulder] but the whole thing[,] it seems that she has really been rehabilitated so, yes, I'd have to change my opinion." However, on redirect examination, Dr. Gates testified that the July 16, 2009, report did not state that Rodriguez had "reached the functional capacity of being able to push 30 to 100 pounds occasionally, the push force to throw a switch."

¶ 19 Rodriguez then called Terry Cordray to testify as an expert in vocational rehabilitation. Cordray conducted an interview with Rodriguez and reviewed her medical records. He compared Rodriguez's physical capabilities to the demands of the job of conductor. As a conductor, Rodriguez must be able to push and pull up to 100 pounds in order to throw a switch. Cordray testified that according to the Department of Labor guidelines, that level of work is classified as heavy duty. Cordray further opined that Metra's job description classifying the job as light duty was wrong.

¶ 20 Cordray noted that Dr. Smith released Rodriguez to work at a light-duty level in May of 2008. He also noted that Dr. Smith determined that Rodriguez had reached maximum medical improvement and, therefore, she could never return to work as a conductor. Cordray opined that Rodriguez's shoulder injury was the only reason that she could not work as a conductor.

¶ 21 Cordray stated that Rodriguez's shoulder injury is an impairment that prevents her from doing her job; thus, Rodriguez has a disability. As a consequence of her disability, Rodriguez was restricted in the number of jobs she could apply for. Cordray analyzed Rodriguez's education and previous work experience and concluded that she was only capable of earning a maximum of $14 per hour. On cross-examination, he admitted that his opinions might change if he learned that in July of 2009, Rodriguez sought medical clearance to return to work as a conductor.

¶ 22 Cornelius Hoffman then testified as Rodriguez's economic expert. He testified that while employed at Metra, Rodriguez earned about $41,000 in net wages. Relying on Cordray's analysis, which concluded that Rodriguez was limited to earning about $30,000 per year, Hoffman concluded that Rodriguez would lose approximately $11,000 per year in future earnings. He then determined that Rodriguez's future lost earnings and her lost benefits over the 18.5 years Rodriguez is expected to remain in the work force would result in future lost earnings and benefits of $456,000 to $500,000.

¶ 23 On cross-examination, Hoffman acknowledged that his analysis relied on Cordray's assessment of Rodriguez's ability to make money. He also acknowledged that if Dr. Gates had testified that Rodriguez appeared to have rehabilitated herself and could return to work as a conductor, she would experience no wage loss.

¶ 24 Rodriguez also testified about her disability. She confirmed that she was placed on restricted work duty while she was injured. She also testified that after her surgery, she was immobilized in a sling for four to five weeks. Both before and after surgery, Rodriguez testified that she was unable to go shopping, wash her hair, or participate in recreational activities.

¶ 25 Metra tendered the evidence deposition of Dr. Cole in its case. Dr. Cole stated that after rotator cuff surgery like Rodriguez's, a patient "could expect to have residual discomfort with some activities. *** Possibly forever." When asked if residual discomfort would "permanently keep her from physically being able to do the things that she did before surgery," Dr. Cole said, "I don't know. It depends. Everyone's different. *** Many patients have some residual deficits after rotator cuff repair." Nevertheless, he had no record of Rodriguez complaining that she could not engage in any activities that she participated in before her surgery.

¶ 26 When Rodriguez returned to Dr. Cole in May of 2007, he stated that Rodriguez showed good progress after her December 2006 surgery and her physical therapy was going well. Although Rodriguez complained of symptoms at that time, he prescribed an anti-inflammatory medication and released her to return to work. He found that Rodriguez's "[m]otion was not normal but highly functional and strength was good and pain was minimal." He believed that Rodriguez had "healed sufficiently" to return to work as a conductor for Metra without any physical restrictions or limitations.

¶ 27 When Rodriguez returned to see Dr. Cole in March of 2008, she presented him with the MRI performed by Dr. Smith. Dr. Cole stated that the MRI showed that Rodriguez's rotator cuff appeared to be intact and did not retear, despite her complaints of debilitating pain. During Dr. Cole's physical examination, Rodriguez appeared somewhat weak and complained of pain with overhead positioning. He treated her with a cortisone shot.

ΒΆ 28 Rodriguez saw Dr. Cole again in April of 2008. She "continued to have pain that [Dr. Cole] couldn't really substantiate and project an etiology or cause of." Therefore, he ordered her to undergo a FCE to "gain an objective description of what her limitations should be." Dr. Cole stated that in the meantime, Rodriguez could return to work "with limited use of the upper [left] extremity to include no overhead lifting activities, no lifting, pushing or pulling greater than ...


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