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Abernathy v. Eastern Illinois Railroad Company

United States Court of Appeals, Seventh Circuit

October 16, 2019

Marvin Abernathy, Plaintiff-Appellee, Cross- Appellant,
Eastern Illinois Railroad Company, Defendant-Appellant, Cross-Appellee.

          Argued 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. Myerscough, Judge.

          Before Kanne, Sykes, and Hamilton, Circuit Judges.


         Plaintiff 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.

         A jury 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.

         I. Facts

         Abernathy 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.

         In 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.

         Abernathy 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.

         The 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.

         II. The Trial

         Abernathy 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.

         Probus 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.

         Abernathy 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.

         Abernathy 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.

         The 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.

         After 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 it.

         The 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.

         III. L ...

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