February 6, 2019
Appeals from the United States District Court for the Central
District of Illinois. No. 3:15-cv-03223-SEM-TSH - Sue E.
Kanne, Sykes, and Hamilton, Circuit Judges.
HAMILTON, CIRCUIT JUDGE.
Marvin Abernathy was injured while working for defendant
Eastern Illinois Railroad Company. He sued under the Federal
Employers' Liability Act (FELA), 45 U.S.C. § 51 et
seq., alleging that the Railroad negligently failed to
provide reasonably safe working conditions by failing to
provide appropriate equipment for the job he was doing when
he was hurt.
awarded Abernathy $525, 000 in damages. The Railroad moved
for judgment as a matter of law or a new trial. The district
court denied both requests, and the Railroad has appealed,
raising a host of issues. Abernathy has filed a cross-appeal
asserting that the district court erred by not awarding him
sufficient costs to cover his expert witness fees. We affirm
Judge Myerscough's decisions in all respects.
worked as a track inspector for the Eastern Illinois Railroad
Company. His duties included replacing and repairing railroad
ties. On September 13, 2012, the Railroad sent Abernathy and
another employee, Richard Probus, to repair a railroad
crossing about six or seven miles away from the
Railroad's yard in Charleston, Illinois. Abernathy was in
charge of the job. The repair required him and Probus to
transport six ties from the yard to the crossing.
2012, the Railroad had a "tie crane," a vehicle
that runs on the railroad tracks and is well-suited to
transporting railroad ties, but it had been out of commission
for years. Abernathy and Probus had only two options for
transporting the ties: a backhoe or a pickup truck, either of
which would need to travel on public roads rather than
railroad tracks. Abernathy chose to use the backhoe. He
testified that he had never used the pickup truck to haul
ties before, but that he had used the backhoe for similar
jobs numerous times, although not on public roads and not
with this heavy a load. Abernathy and Probus loaded four ties
into the bucket of the backhoe and two across the top of the
bucket, resting on the arms of the machine. Abernathy
testified that when the bucket is rolled back, it locks the
resting ties into place. Abernathy drove the backhoe along a
public highway. Probus followed in the pickup, which was
loaded with tools needed to install the ties.
drove in low gear, but he started to experience "road
bounce." He started braking, and two ties fell out of
the backhoe's bucket. Abernathy stopped on the shoulder
of the road and tried to lift the ties back into the bucket.
In lifting a tie, he injured his back. He also smashed a
finger between the tie he was holding and another tie in the
bucket. Despite the accident, Abernathy and Probus were able
to finish reloading the ties, and they resumed their trip and
finished the repair job. Abernathy remained in pain for the
rest of the day.
following morning, Abernathy reported the injury to Tim
Allen, the general manager of the Railroad. Allen told him
"to take it easy" and "be on light duty"
for a while. Abernathy worked through the pain on lighter
duty for the next year but was unable to return to his
regular work. The Railroad terminated his employment in
February 2014. He eventually had physical therapy, epidural
injections, and then surgery in 2016. After the surgery, he
continued to experience pain in his back and legs. At the
time of trial, his surgeon had still not cleared him for any
type of work.
sued the Railroad under the FELA, 45 U.S.C § 51,
alleging that it had been negligent in failing to provide an
operable tie crane and requiring him to use the backhoe,
which was inadequate for his assigned task of transporting
the ties. The trial lasted three days. Abernathy testified
and called three other lay witnesses: his wife Carrie
Abernathy, Richard Probus, and Lowell McElwee, a Railroad
engineer who worked with Abernathy.
testified that on the day of Abernathy's injury, they
could not have used the pickup truck to transport the ties
because they needed the pickup truck to transport the other
equipment needed to install the ties. Probus also testified
that the Railroad had acquired an operable tie crane after
Abernathy's accident. Probus explained that the tie crane
was now being used to transport ties and that manual lifts of
ties were not necessary with the new machine. He stated that
the availability of the tie crane makes his job safer.
testified that when the Railroad's tie crane had been
operational, he used it regularly. He explained that the tie
crane was the preferred method for moving ties because it did
not require manual lifting or traveling on public roads. He
also testified that before his 2012 injury, he had repeatedly
asked the Railroad to replace the tie crane.
also presented the depositions of Doctors Renu Bajaj, James
Kohlman, and Thomas Lee. Dr. Lee, Abernathy's surgeon,
offered testimony relevant to damages and causation. He
testified that he did not expect Abernathy to regain the
level of functionality he had prior to his accident. He also
testified that Abernathy certainly would not be able to
return to work involving heavy manual labor. Dr. Lee also
said that, to a reasonable degree of medical certainty,
Abernathy's symptoms were caused or aggravated by the
lifting accident in September 2012.
Railroad called four witnesses: general manager Tim Allen;
Everett Fletcher; Gayle Garrett, the office secretary for the
Railroad; and Kendall Mulvaney, the superintendent of R&R
Contractors, testifying as an expert witness in railroad
repair and maintenance. The Railroad defended on the theory
that a backhoe is a generally accepted method for
transporting ties in the rail repair industry.
the close of Abernathy's case-in-chief, the Railroad
moved for judgment as a matter of law under Federal Rule of
Civil Procedure 50(a), which the court denied. The Railroad
renewed its motion under Rule 50(b) at the close of all
evidence and prior to the verdict, and the court again denied
jury found that the Railroad was negligent and that its
negligence contributed to Abernathy's injuries. The jury
calculated Abernathy's total damages to be $750, 000.
However, the jury found that Abernathy was also at fault for
thirty percent of the total fault, which meant the jury
awarded a net verdict of $525, 000. The district court denied
the Railroad's post-trial motions for judgment as a
matter of law or a new trial. The district court also awarded
costs to Abernathy as the prevailing party but rejected his
request to include as costs $3, 800 in witness fees paid to
Doctors Lee and Bajaj. The Railroad has appealed the judgment
against it, and Abernathy has cross-appealed the denial of
his request for expert witness fees as part of his costs.