                           STATE OF MICHIGAN

                            COURT OF APPEALS



JASON REINEKE,                                                       UNPUBLISHED
                                                                     January 25, 2018
               Plaintiff-Appellee,

v                                                                    No. 331878
                                                                     Wayne Circuit Court
GRAND TRUNK WESTERN RAILROAD                                         LC No. 14-015048-NO
COMPANY,

               Defendant-Appellant.


Before: JANSEN, P.J., and FORT HOOD and RIORDAN, JJ.

PER CURIAM.

        In this Federal Employers’ Liability Act (FELA), 45 USC 51 et seq., action, defendant,
Grand Trunk Western Railroad Company, appeals as of right the trial court’s judgment on the
$75,000 jury verdict in favor of plaintiff, Jason Reineke. For the reasons stated herein, we
affirm.

                    I. RELEVANT FACTS AND PROCEDURAL HISTORY

       Defendant hired plaintiff to work as a brakeman in 2001. Shortly thereafter, plaintiff was
promoted to train conductor, which required him to move freight, give engineers instructions
regarding moving freight, assemble and disassemble train cars in the rail yard, and provide
general rail service and maintenance.

        Plaintiff worked the “Hump 120” shift at defendant’s Flat Rock Yard site, which required
plaintiff to separate and categorize train cars coming into the yard. A portion of plaintiff’s job
duties required him to throw manual track switches in order to separate sections of train cars and
move them onto different tracks. Plaintiff would throw the track switches, and once they were
properly aligned, he would pull a lever that would raise the pin holding the sets of train cars
together. After the pin was raised, the appropriate section of cars would separate from the rest of
the train, and then hit the other end of a plateau that the train cars were resting on. Using gravity
to roll down the hill, the train cars would follow the proper rail route, created by throwing
various rail switches, to the preselected track.

       Plaintiff testified at trial that some of the pin levers would require him to pull multiple
times before the pin would raise. During some of those pulls, the pin lever would come to an
abrupt stop causing vibrations to travel though the lever into plaintiff’s arm. Plaintiff testified

                                                -1-
that when a pin was functioning properly, there was little resistance. However, when plaintiff
pulled a malfunctioning lever, he had to flex his wrists and try multiple times. Occasionally,
some of the track switches would be difficult to throw. If the track switch was poorly
maintained, i.e., not adequately lubricated, it required approximately 40 pounds of force to throw
and plaintiff would have to use both hands, flex his wrists, and use a great deal of strength.
Plaintiff would orally report issues with track switches and pin levels to his supervisors. If the
track switch or pin lever was so poorly maintained that it would be either entirely inoperable or
would risk immediate physical injury, plaintiff would refuse to operate it.

        In 2010, plaintiff began experiencing numbness and tingling in his hands after working as
a conductor.1 In 2011, plaintiff finally went to see Dr. Manish R. Gupta, a plastic,
reconstructive, and general surgeon in Ohio after his numbness and tingling turned to pain. Dr.
Gupta performed clinical tests to determine if plaintiff was suffering from carpal tunnel
syndrome (CTS). Dr. Gupta eventually sent plaintiff to Dr. David Szymanski for further testing.
Dr. Szymanski, a board certified neurologist, performed a nerve conduction test and an
electromyography (EMG) on plaintiff’s hands and wrists. These tests indicated that plaintiff was
suffering from moderate bilateral CTS. Dr. Gupta recommended surgery to alleviate plaintiff’s
symptoms. Surgery was performed, after which Dr. Gupta was able to confirm plaintiff’s CTS
diagnosis. Upon returning to work, plaintiff used anti-vibration gloves when working in the rail
yard, and his symptoms of numbness, pain, and tingling never returned.

        On November 21, 2014, plaintiff brought the instant action under FELA, a federal statute
enacted by the United States Congress to “provide a federal remedy for railroad workers who
suffer personal injuries as a result of the negligence of their employer or their federal
employees.” Atchison, Topeka & Santa Fe R Co v Buell, 480 US 557, 561; 107 S Ct 1410; 94 L
Ed 2d 563 (1987). Plaintiff alleged that defendant had failed to provide a reasonably safe work
environment, which caused his CTS. Specifically, plaintiff claimed that defendant had a
statutory duty to properly maintain the pin levers, as required by the Federal Safety Appliance
Act (FSAA), 49 USC 20302 et seq., and that defendant was negligent in performing that duty, as
well as maintaining the track switches.

        Defendant filed two motions for summary disposition pursuant to MCR 2.116(C)(10).
Defendant first argued that it did not have actual notice of the alleged negligent state of the pin
levers and track switches, which plaintiff was required to prove to succeed on its claim brought
under FELA. Defendant also argued that there was no admissible evidence that its alleged
negligence caused plaintiff’s CTS. Specifically, defendant took issue with the expert witness
opinion testimony on causation from Dr. Gupta and Dr. Steven Newman, a specialist in
neurology familiar with the diagnosis and treatment of CTS, who had performed a differential
diagnosis on plaintiff. The trial court denied both motions, determining that causation and notice
were both questions for the jury.




1
  We note that in 2011, plaintiff accepted a position with his workers’ union, which required him
to work outside of the rail yard three to four days per week.


                                                -2-
        As the case proceeded toward trial, plaintiff and defendant filed numerous motions in
limine. Relevant to the present case, defendant moved the trial court to preclude plaintiff’s
medical experts from testifying about causation in Motion in Limine Number 10. Defendant
once again provided the same argument regarding the allegedly insufficient factual and scientific
foundation on which the expert witnesses relied. The trial court denied Motion in Limine
Number 10, and opined that it would not preclude the testimony of plaintiff’s medical experts
regarding causation because they failed to use defendant’s preferred catchwords, but noted that
defendant could object to the doctors’ testimony at trial when the foundation had been laid out
before the jury.

        Trial commenced on February 1, 2016. After the close of the plaintiff’s case-in-chief,
defendant made a motion for directed verdict, once again arguing that plaintiff’s expert wtiness
testimony on causation amounted to speculation and conjecture, which was not enough to go to
the jury on the issue of defendant’s negligence. Defendant also argued that there was no
evidence of notice, for the same reasons raised in its motions for summary disposition, which
also required a directed verdict in favor of defendant. The trial court denied defendant’s motion.

        After hearing all of the evidence, the jury determined that the faulty pin levers violated
the FSAA, which caused, in part, plaintiff’s injuries. The jury also found that defendant was
negligent with respect to plaintiff, and that plaintiff’s injuries were caused, at least in part, by
defendant’s negligence. The jury then found that plaintiff was also negligent, and that his own
negligence caused some of his injuries. The jury indicated that 45% of the negligence that led to
plaintiff’s CTS was attributable to plaintiff. Finally, the jury found that plaintiff suffered
$75,000 in damages. The trial court entered a judgment on that verdict on February 17, 2016.
This appeal followed.

                               II. EXPERT WITNESS OPINIONS

       Defendant argues the trial court committed error requiring reversal by denying its motion
in limine to bar Dr. Gupta and Dr. Newman’s expert witness testimony on causation. We
disagree.

        We review a trial court’s evidentiary decisions for an abuse of discretion. Mitchell v
Kalamazoo Anesthesiology, PC, ___ Mich App ___, ___; ___ NW2d ___ (2017) (Docket No.
331959); slip op at 3. “A trial judge abuses the court’s discretion when the judge selects an
outcome that is outside the range of principled outcomes.” Id. (citation omitted). Further,
“questions of law underlying evidentiary rulings, including the interpretation of statutes and
court rules,” are reviewed de novo. Elher v Misra, 499 Mich 11, 21; 878 NW2d 790 (2016).

       Although FELA cases filed in state court require trial courts to rely on federal substantive
law, “questions of procedure and evidence [are] to be determined according to the law of the
forum [state].” Chesapeake & Ohio R Co v Kelly, 241 US 485, 491; 36 S Ct 630; 60 L Ed 1117
(1916). Indeed, MRE 702 and MCL 600.2955 govern the admissibility of expert witness
testimony.

       MRE 702 provides:



                                                -3-
               If the court determines that scientific, technical, or other specialized
       knowledge will assist the trier of fact to understand the evidence or to determine a
       fact in issue, a witness qualified as an expert by knowledge, skill, experience,
       training, or education may testify thereto in the form of an opinion or otherwise if
       (1) the testimony is based on sufficient facts or data, (2) the testimony is the
       product of reliable principles and methods, and (3) the witness has applied the
       principles and methods reliably to the facts of the case.

Accordingly, MRE 702 requires trial courts to act as gatekeepers with respect to admitting
scientific, technical, or other specialized evidence, and must ensure that expert witness testimony
is reliable. Gilbert v DaimlerChrysler Corp, 470 Mich 749, 782; 685 NW2d 391 (2004), citing
Daubert v Merrell Dow Pharmaceuticals, Inc, 509 US 579; 113 S Ct 2786; 125 L Ed 2d 469
(1993).

       Additionally, MCL 600.2955 provides, in relevant part:

               (1) In an action for . . . injury to a person or property, a scientific opinion
       rendered by an otherwise qualified expert is not admissible unless the court
       determines that the opinion is reliable and will assist the trier of fact. In making
       that determination, the court shall examine the opinion and the basis for the
       opinion, which basis includes the facts, technique, methodology, and reasoning
       relied on by the expert, and shall consider all of the following factors:

               (a) Whether the opinion and its basis have been subjected to scientific
       testing and replication.

              (b) Whether the opinion and its basis have been subjected to peer review
       publication.

              (c) The existence and maintenance of generally accepted standards
       governing the application and interpretation of a methodology or technique and
       whether the opinion and its basis are consistent with those standards.

               (d) The known or potential error rate of the opinion and its basis.

              (e) The degree to which the opinion and its basis are generally accepted
       within the relevant expert community. As used in this subdivision, “relevant
       expert community” means individuals who are knowledgeable in the field of
       study and are gainfully employed applying that knowledge on the free market.

              (f) Whether the basis for the opinion is reliable and whether experts in that
       field would rely on the same basis to reach the type of opinion being proffered.

               (g) Whether the opinion or methodology is relied upon by experts outside
       of the context of litigation.




                                                -4-
        Although a trial court “shall consider all of the factors listed in MCL 600.2955(1),” Clerc
v Chippewa Co War Mem Hosp, 477 Mich 1067, 1068; 729 NW2d 221 (2007), not all seven
factors are relevant in every case. Elher, 499 Mich at 27. So long as all seven factors are
considered by the trial court, the “statute does not require that each and every one of those seven
factors must favor the proffered testimony.” Chapin v A & L Parts, Inc, 274 Mich App 122, 137;
732 NW2d 578 (2007) (opinion by DAVIS, J.)

       The trial court’s inquiry when determining admissibility of expert witness testimony is
not “whether an expert’s opinion is necessarily correct or universally accepted. The inquiry is
into whether the opinion is rationally derived from a sound foundation.” People v Unger, 278
Mich App 210, 217; 749 NW2d 272 (2008), quoting Chapin, 274 Mich App at 139 (opinion by
DAVIS, J.) Indeed, this Court has previously determined that “the trial court’s role as gatekeeper
does not require it to search for absolute truth, to admit only uncontested evidence, or to resolve
genuine scientific disputes.” Unger, 278 Mich App at 217, quoting Chapin, 274 Mich App at
139 (opinion by DAVIS, J.) Rather,

        [t]he standard focuses on the scientific validity of the expert’s methods rather than
        on the correctness or soundness of the expert’s particular proposed testimony. An
        expert’s opinion is admissible if it is based on the “methods and procedures of
        science” rather than “subjective belief or unsupported speculation.” [Unger, 278
        Mich App at 217-218 (citation omitted), quoting Daubert v Merrell Dow
        Pharmaceuticals, Inc, 509 US 579, 590; 113 S Ct 2786; 125 L Ed 2d 469 (1993).]

Put simply, the role of the trial court as gatekeeper is merely to “ensure that the trier of fact is not
called on to rely in whole or in part on an expert opinion that is only masquerading as science.”
Chapin, 274 Mich App at 139 (opinion by DAVIS, J.)

        Dr. Gupta and Dr. Newman’s proffered testimony regarding causation was far from
“masquerading as science.” In fact, the expert witness testimony presented by Dr. Gupta and Dr.
Newman is the type of expert witness testimony properly relied on by trial courts every day.
Carpal tunnel syndrome (CTS) is not a unique or unusual injury or illness. Dr. Gupta is a board
certified general surgeon and board certified plastic surgeon who regularly encounters and treats
patients with CTS, including plaintiff. When treating plaintiff, Dr. Gutpa relied on his own
experiences treating patients with CTS, the medically recognized causes of CTS, and the results
of plaintiff’s EMG test, which indicated that plaintiff was suffering from moderate bilateral CTS.

       Dr. Gupta’s opinion on causation in this matter was given in response to a hypothetical in
which certain facts were “assumed.” Generally, an expert opinion on causation that is solely
“based upon only hypothetical situations is not enough to demonstrate a legitimate causal
connection between a defect and injury.” Teal v Prasad, 283 Mich App 384, 394-395; 772
NW2d 57 (2009). However, if a hypothetical is based upon “specific facts that would support a
reasonable inference of a logical sequence of cause and effect,” there is no error. Id. (emphasis
added.) There must be facts in evidence to support an expert witness’ opinion. Id. at 395.




                                                  -5-
        The hypothetical posed to Dr. Gupta assumed facts actually testified to by plaintiff. 2
Namely, plaintiff testified that in the course of his employment, he was required to throw
railroad switches and levers, and sometimes those switches were jammed, or stopped, or
otherwise improperly maintained. Therefore, to operate those switches and levers required
plaintiff to use “extra force multiple times” while his wrists were in an awkward, or flexed,
position. Those specific facts, actually testified to by plaintiff, when considered alongside Dr.
Gupta’s personal knowledge of CTS, as well as Dr. Gupta’s personal knowledge of plaintiff’s
medical history, assisted Dr. Gupta in forming an opinion on causation.

        Likewise, Dr. Newman, who conducted a differential diagnosis on plaintiff, is a board
certified neurologist with an impressive CV, who also specializes in physical medicine and
rehabilitation, and diagnoses and treats patients with CTS on a daily basis. Dr. Newman relied
on his extensive experience treating patients with CTS when he testified that, “the most common
cause of carpal tunnel syndrome in our society is constant or repetitive activities of an industrial
nature, assembly line nature, heavy equipment operation, vibration and the like.” Dr. Newman
also took into consideration plaintiff’s testimony and medical history when concluding that
plaintiff’s work-related activities caused, or at the very least contributed to, plaintiff’s CTS.

        In concluding that the trial court failed to act as gatekeeper, the dissent seems to suggest
that the methodology used by Dr. Gupta and Dr. Newman does not provide an adequate
foundation for their expert opinion. However, we conclude that the methodology used by Dr.
Gupta and Dr. Newman was thorough. Both experts took into consideration the medically
accepted causes of CTS, their personal experience diagnosing and treating patients with CTS,
plaintiff’s medical history, including results of an EMG and a post-surgical diagnosis, as well as
plaintiff’s work history. Short of going out into the field, so to speak, and personally
investigating the force required to throw railroad switches or levers, it is unclear what
methodology, exactly, would be required to bolster the foundation of Dr. Gupta and Dr.
Newman’s testimony. Placing such an expectation on a medical expert regarding a run of the
mill case of CTS is unreasonable, inconsistent with Michigan jurisprudence, and frankly
ridiculous.




2
  During Dr. Gupta’s deposition, defense counsel objected to Dr. Gupta’s opinion on causation
because “there’s no foundation for the doctor’s answer, it calls for speculation, and it’s based on
facts not in evidence.” Similarly, during Dr. Newman’s deposition, defense counsel objected to
Dr. Newman’s opinion on causation on the basis that “there’s no foundation and [it] calls for
speculation.” By the time Dr. Gupta’s and Dr. Newman’s video depositions were played at trial,
plaintiff’s testimony had cured all foundational issues raised during Dr. Gupta’s and Dr.
Newman’s depositions, rendering defense counsel’s objections moot. See MRE 703, which
states in relevant part: “The facts or data in the particular case upon which an expert bases an
opinion or inference shall be in evidence.” Accordingly, to the extent that defense counsel
objected to Dr. Gupta’s and Dr. Newman’s causation opinions at trial on the basis that they
lacked a scientific or legal foundation, those objections may be unpreserved.


                                                -6-
        We further note that with respect to causation, the jury clearly determined that plaintiff’s
own negligence contributed to his injuries. Specifically, the jury verdict form reflects that the
jury found plaintiff was 45% comparatively negligent in causing his own injuries. It is likely
that the jury’s finding regarding plaintiff’s comparative negligence was in response to
defendant’s own expert witness testimony on causation. Assuming arguendo that the trial court
did abdicate its gatekeeping responsibilities, defense counsel was able to produce their own
experts to testify regarding causation, and the jury was able to consider the two conflicting
causation theories. Accordingly, any error would be harmless, and does not warrant appellate
relief. See Craig ex rel Craig v Oakwood Hosp, 471 Mich 67, 76; 864 NW2d 296 (2004), citing
MCR 2.613(A) and MRE 103(a) (quotation marks and brackets omitted), where our Supreme
Court articulated that “any error in the admission or exclusion of evidence will not warrant
appellate relief unless refusal to take this action appears . . . inconsistent with substantial justice,
or affects a substantial right of the opposing party.”

        We believe that the dissent would agree that it would be refreshing to see trial courts
more frequently fully articulate their reasoning behind evidentiary or procedural rulings.
However, even on the record before us, we cannot conclude that it was outside the range of
principled outcomes to deny defendant’s motion in limine regarding Dr. Gupta’s and Dr.
Newman’s opinions on causations, particularly when doing so would vacate an otherwise sound
jury verdict, and any error on the part of the trial court was, in fact, harmless.

        Briefly, we note that we find the dissent’s discussion of a Federal circuit split regarding
the admissibility of expert witness testimony regarding causation in cases involving FELA to be
confusing. As noted supra, the trial court was required to apply substantive federal law, but
because plaintiff brought his case in state court, Michigan procedural and evidentiary rules
applied. This principle is elementary civil procedure. What any federal court may have
concluded regarding the admissibility of evidence, or how any federal court may have interpreted
Michigan law, is immaterial. Regardless, even if this Court were to look to the Federal circuit
courts for guidance or illustration, it would not rely on the Seventh Circuit, particularly where
the Sixth Circuit, which is routinely exposed to Michigan procedural and evidentiary law, has
addressed this exact issue. See Handyman v Norfolk & Western R Co, 243 F 3d 255, 265 (CA 6,
2001), where the Sixth Circuit concluded that requiring a plaintiff to establish “a dose/response
relationship or threshold level in a situation where there has been no scientific study conducted
specifically on railroad breakmen [would] essentially . . . foreclose plaintiffs from recovering for
CTS against negligent employers unless their particular job has been the subject of a national,
epidemiological study on CTS.”

        Further, the dissent ignores a recent case from the United States District Court for the
Eastern District of Michigan involving the same defendant in this case defending a similar FELA
action from a former employee who developed osteoarthritis (OA) in his knees due to his
working conditions. See Dixon v Grand Trunk Western R Co, 259 F Supp 3d 702 (ED Mich,
2016). In Dixon, Defendant raised similar arguments relating to the lack of scientific foundation
supporting plaintiff’s expert witness testimony regarding causation. Id. at 708-709. The United
States District Court for the Eastern District of Michigan, citing Handyman, determined that
expert witness opinions on causation were properly admitted where plaintiff’s expert spoke with
the plaintiff, evaluated the plaintiff’s work history and medical history, and then, relying on the
expert’s own experience treating patients with OA, determined that the “those motions

                                                  -7-
[performed by the plaintiff in the course of his employment with defendant] could likely cause
the sort of OA from which [the plaintiff] suffers.” Id.

                          III. DENIAL OF SUMMARY DISPOSITION

        Defendant next argues that the trial court erroneously denied its motions for summary
disposition and its motion for directed verdict. We disagree.

        This Court reviews a trial court’s decision on a motion for summary disposition de novo.
Bergman v Cotanche, 319 Mich App 10, 15; 899 NW2d 754 (2017). This Court’s review of a
trial court’s decision regarding a directed verdict is also reviewed de novo. Conlin v Upton, 313
Mich App 243, 254; 881 NW2d 511 (2015). “When deciding a motion for directed verdict, the
evidence and all legitimate inferences are viewed in the light most favorable to the nonmoving
party.” Chelik v Capitol Transp, LLC, 313 Mich App 83, 88-89; 880 NW2d 350 (2015). “Such
a motion should be granted only if the evidence viewed in this light fails to establish a claim as a
matter of law.” Id. at 89 (internal quotation marks omitted).

         We first address defendant’s summary disposition related claims. Below, defendants
moved for summary disposition under MCR 2.116(C)(10). “A motion for summary disposition
brought pursuant to MCR 2.116(C)(10) tests the factual support for a claim.” Patrick, ___ Mich
App at ___; slip op at 4 (citation omitted). Under MCR 2.116(C)(10), the pleadings, admissions,
and other evidence submitted by the parties is viewed in a light most favorable to the nonmoving
party. Id. “A genuine issue of material fact exists when the record, giving the benefit of
reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might
differ.” West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). “It is well settled
that the [trial] court may not weigh the evidence or make determinations of credibility when
deciding a motion for summary disposition. Moreover, a [trial] court may not make findings of
fact; if the evidence before it is conflicting, summary disposition is improper.” Patrick, ___
Mich App at ___; slip op at 5 (brackets, quotation marks, and citations omitted).

        Defendant’s motion for summary disposition was premised on the argument that plaintiff
failed to provide any credible evidence regarding causation, and that plaintiff failed to provide
notice of the alleged improperly maintained track switches and pin levers, as required under
FELA. The trial court denied defendant’s motion, determining that causation was a question for
the jury based on the expert testimony provided.

       Under FELA,

       Every common carrier by railroad . . . shall be liable in damages to any person
       suffering injury while he is employed by such carrier . . . for such injury or death
       resulting in whole or in part from the negligence of any of the officers, agents, or
       employees of such carrier. 45 USC 51.

FELA’s language on causation is “as broad as could be framed,” and “the test of a jury case is
simply whether the proofs justify with reason the conclusion that the employer negligence played
any part, even the slightest, in producing the injury or death for which damages are sought.”
CSX Transp, Inc, v McBride, 564 US 685, 691-692; 131 S Ct 2630; 180 L Ed 2d 637 (2011)
(citations omitted). As previously discussed, plaintiff did provide credible evidence regarding
                                                -8-
causation through the expert witness testimony of Dr. Gupta and Dr. Newman. Further, even
without expert testimony on causation, plaintiff provided sufficient circumstantial evidence from
which a reasonable jury may infer that defendant’s negligence caused plaintiff’s CTS. See
Rogers v Missouri Pacific R Co, 352 US 500, 508; 77 S Ct 443; 1 L Ed 493 (1957), where the
United States Supreme Court opined that “[t]he burden of the employee is met, and the
obligation of the employer to pay damages arises, when there is proof, even though entirely
circumstantial, from which the jury may with reason make th[e] inference” that the negligence of
an employer played any part in causing the injury at issue.

        In his deposition, plaintiff testified that he began to suffer from numbness and tingling in
both hands after working a 10-hour Hump 120 shift, during which he would encounter a great
deal of malfunctioning pin levers and insufficiently lubricated track switches. Plaintiff’s
numbness and tingling eventually progressed to pain, and he sought medical advice from Dr.
Gupta. Dr. Gupta recommended plaintiff begin wearing anti-vibration gloves while at work, and
sent him for further testing. Dr. Szymanski performed a nerve conduction test and an EMG,
which lead to plaintiff’s CTS diagnosis. Dr. Gupta confirmed that diagnosis after operating on
both of plaintiff’s wrists. Surgical intervention completely resolved plaintiff’s symptoms. When
plaintiff returned to work, he continued to wear the anti-vibration gloves, and his CTS symptoms
did not return. Accordingly, a reasonable jury could have inferred from the aforementioned
circumstantial evidence that plaintiff’s use of the negligently maintained track switches and pin
levers caused his CTS. Therefore, the trial court did not commit error requiring reversal by
denying defendant’s motion for summary disposition regarding causation.

        Defendant also moved for summary disposition on the basis that plaintiff failed to
provide the requisite notice of the alleged improperly maintained track switches and pin levers.
The trial court denied defendant’s motion for summary disposition, again finding notice to be a
question for the jury. We agree.

        Under FELA, defendant could not be found to be negligent “absent proof that [the defect
complained of] was known, or should or could have been known, by defendant with opportunity
to correct it.” Szekeres v CSX Transp, Inc, 617 F3d 424, 430-431 (CA 6, 2010) (internal
quotations omitted). “[N]otice under [ ] FELA may be either actual or constructive[.]” Id. at
431. “If negligence is proved, however, and is shown to have played any part, even the slightest,
in producing the injury, then the carrier is answerable in damages even if the extent of the
[injury] or the manner in which it occurred was not probable or foreseeable.” McBride, 564 US
at 703-704 (internal quotation marks and citations omitted.) Notice to a carrier need only include
notice of the actual defect. Id.

         Although defendant claims it was not provided with notice, in his deposition, plaintiff
testified that he had informed management on multiple occasions that some track switches were
too hard to throw because they were not sufficiently lubricated, and that there were
malfunctioning pin levers that required multiple pins and were causing significant vibrations.
This testimony plainly supports the trial court’s conclusion that there was a question of fact for
the jury regarding whether plaintiff provided defendant with actual notice of the alleged defects.
Accordingly, the trial court did not commit error requiring reversal by denying defendant’s
motion for summary disposition.


                                                -9-
        Defendant’s motion for directed verdict was also properly denied. At the close of
plaintiff’s proofs, defendant moved the trial court for a directed verdict of no liability, arguing
that plaintiff failed to present sufficient evidence of causation, and likewise, failed to present
evidence of notice. However, the evidence presented by plaintiff during his case-in-chief was
identical to the evidence presented in response to defendant’s motions for summary disposition,
and created reasonable inferences that plaintiff’s CTS was caused, at least in part, by defendant’s
negligence, and that defendant received actual notice. Accordingly, because plaintiff did not fail
to establish his claim as a matter of law, defendant’s motion for directed verdict was properly
denied.

                                   IV. JURY INSTRUCTIONS

       Finally, defendant argues the trial court abused its discretion by instructing the jury
regarding assumption of risk. We disagree.

        “We review a trial court’s decision regarding jury instructions for an abuse of discretion.”
Alfieri v Bertorelli, 295 Mich App 189, 196; 813 NW2d 772 (2012). “An abuse of discretion
occurs when the trial court chooses an outcome falling outside the range of principled
outcomes.” Edry v Adelman, 486 Mich 634, 639; 786 NW2d 567 (2010). “[J]ury instructions
must be reviewed as a whole, rather than extracted piecemeal to establish error in isolated
portions.” Hill v Sacka, 256 Mich App 443, 457; 666 NW2d 282 (2003) (internal quotation
marks omitted). “There is no error requiring reversal if, on balance, the theories of the parties
and the applicable law were adequately and fairly presented to the jury.” Id. at 457-458.
Reversal is not required unless failing to do so would be “inconsistent with substantial justice.”
MCR 2.613(A).

       In 1939, the United States Congress amended FELA to preclude employers from raising
assumption of risk as a defense. See Gottshall, 512 US at 542-543. Accordingly, FELA now
provides:

              In any action brought against any common carrier under or by virtue of
       any of the provisions of [FELA] to recover damages for injuries to . . . any of its
       employees, such employee shall not be held to have assumed the risks of his
       employment in any case where such injury . . . resulted in whole or in part from
       the negligence of any of the officers, agents, or employees of such carrier; and no
       employee shall be held to have assumed the risks of his employment in any case
       where the violation by such common carrier of any statute enacted for the safety
       of employees contributed to the injury . . . of such employee. [45 USC 54.]

However, FELA does allow for an employer to argue that a plaintiff’s own negligence
contributed to his or her injury, and that any jury award should be reduced by that amount. See
45 USC 53, which provides:

              In all actions . . . brought against any such common carrier by railroad
       under . . . any of the provisions of [FELA] . . . the fact that the employee may
       have been guilty of contributory negligence shall not bar a recovery, but the



                                               -10-
       damages shall be diminished by the jury in proportion to the amount of
       negligence attributable to such employee.

       “At common law, the distinction between assumption of the risk and contributory
negligence is well-settled. Assumption of the risk arises out of the knowing and voluntary
acceptance of a dangerous condition.” Butynski v Springfield Terminal R Co, 592 F 3d 272, 279
(CA 1, 2010). Contributory negligence, meanwhile, “arises out of any careless act or omission
on the plaintiff’s part tending to add new dangers to [existing] conditions.” Id. (internal
quotation marks omitted; alteration in original). Put simply, plaintiff cannot be found to be
negligent for continuing his work even while aware of defendant’s negligent maintenance of the
equipment being used. See id. Plaintiff does not assume the risk of defendant’s negligence by
continuing to do his job. 45 USC 54.

        Defendant argues that the trial court committed error requiring reversal by instructing the
jury on assumption of risk. “Jury instructions should include all the elements of the plaintiff’s
claims and should not omit material issues, defenses, or theories if the evidence supports them.”
Freed v Salas, 286 Mich App 300, 327; 780 NW2d 844 (2009) (internal quotation marks
omitted). The pertinent question to consider is whether, “on balance, the theories of the parties
and the applicable law are adequately and fairly presented to the jury.” Moore v Detroit
Entertainment, LLC, 279 Mich App 195, 223; 755 NW2d 686 (2008) (internal quotation marks
omitted). “The statutory elimination of the defense of assumption of risk, when read to the jury
in FELA cases where that ‘defense’ has been neither pleaded nor argued, serves only to obscure
the issues in the case.” Heater v Chesapeake & Ohio R Co, 497 F 2d 1243, 1249 (CA 7, 1974)
(internal quotation marks omitted). However, where the issue of assumption of risk has been
raised, and the jury might face confusion regarding the difference between contributory
negligence and assumption of risk, the assumption of risk jury instruction is properly given in
FELA cases. Tersiner v Union Pacific R Co, 947 F 2d 954 (CA 10, 1991).

        The assumption of risk jury instruction was properly given by the trial court where
defendant raised the issue during trial. While cross-examining plaintiff, defendant asked whether
plaintiff personally chose to work the Hump 120 shift, even though his seniority may have
afforded him the opportunity to work a less “stressful” position. Further, during closing
arguments, defendant made the following statement to the jury:

       [Plaintiff] also could have worked in the shanty if he thought his job was causing
       him problems with his hands and wrist, and if he was in the shanty he would
       simply use the mouse to click on the switch and the switches would line, he
       wouldn’t be pulling any pins.

        In light of defendant’s eliciting that testimony and making that argument, plaintiff moved
for the trial court to provide an assumption of risk instruction to the jury. Over defendant’s
objection, the trial court read the following instruction to the jury:

               Section 4 of [FELA] provides in part, in an action brought against any
       common carrier, to recover damages for injuries to any of its employees. Such
       [sic] employees shall not be held to have assumed the risk of its employment in
       any case where such injury resulted in whole or part from the negligence of any of

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       the officers, agents, or employees of such carrier, and no employee shall be held
       to have assumed the risk of his employ[ment] in any case where the violation by
       such a common carrier of any statute enacted for the safety of the employees
       contributed to the injury . . . or death of such employees.

Defendant argued before the trial court and now on appeal that the assumption of risk jury
instruction served only to confuse the jury regarding plaintiff’s contributory negligence.

        As noted, however, a jury instruction is not error when, “on balance, the theories of the
parties and the applicable law are adequately and fairly presented to the jury.” Moore, 279 Mich
App at 223 (internal quotation marks omitted). Further, in FELA actions, assumption of risk is
not a permitted defense, but contributory negligence can reduce the award of damages. 45 USC
53-54. By repeatedly raising the issue that plaintiff’s seniority could have allowed him to take a
less physically taxing job, defendant was suggesting to the jury that plaintiff “knowing[ly] and
voluntar[ily] accept[ed] a dangerous condition.” Butynski, 592 F 3d at 279. That argument alone
would not trigger an assumption of risk instruction. However, the argument that plaintiff used
the wrong posture to pull the track switches or should not have pulled the pin lever so hard to
cause vibrations, which relates to whether plaintiff was contributorily negligent, and accordingly,
an assumption of risk instruction was appropriate. See Moore v Detroit Entertainment, LLC, 279
Mich App 195, 223; 755 NW2d 686 (2008). This case differs substantially from a case where
the assumption of risk jury instruction is read but there was nothing at trial to suggest that
assumption of risk was at issue. See Heater v Chesapeake and Ohio R Co, 497 F 2d 1243, 1249
(CA 7, 1974). Therefore, we conclude that the trial court’s jury instructions were properly
tailored to ensure that the jury was “fairly and adequately instructed” regarding the parties’
arguments and the applicable law. See Moore, 279 Mich App at 223.

       Affirmed.


                                                            /s/ Kathleen Jansen
                                                            /s/ Karen M. Fort Hood




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