            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                         STATE OF MICHIGAN

                          COURT OF APPEALS



STEVEN R. LILLY,                                                  UNPUBLISHED
                                                                  January 17, 2019
              Plaintiff-Appellee/Cross-Appellant,

v                                                                 No. 338677
                                                                  Wayne Circuit Court
GRAND TRUNK WESTERN RAILROAD                                      LC No. 16-001908-NO
COMPANY,

              Defendant-Appellant/Cross-
              Appellee.


Before: K. F. KELLY, P.J., and RIORDAN and GADOLA, JJ.

PER CURIAM.

        Defendant appeals by right a final judgment following a jury trial on plaintiff’s action
under the Federal Employers Liability Act (“FELA”), 45 USC 51 et seq. We affirm but order
remittitur.

                                      I. BASIC FACTS

       Plaintiff alleged that his early-onset osteoarthritis (“OA”) requiring bilateral hip
replacement was due to repetitive cumulative trauma he experienced during his decades working
as a carman for defendant. Plaintiff argued that defendant failed to provide him with a safe
working environment. In contrast, defendant argued that plaintiff was provided a safe working
environment and that plaintiff’s OA was attributed to a congenital hip condition known as
femoral acetabular impingement (FAI). The jury found for plaintiff. The trial court denied
defendant’s many post-trial motions. Defendant now appeals by right.1

                                 II. PLAINTIFFS’ EXPERTS


1
 Plaintiff has filed a cross-appeal on certain evidentiary rulings. However, because we affirm,
we do not need to address plaintiff’s cross-appeal.
       Defendant argues the trial court abused its discretion when it denied defendant’s motions
to exclude Dr. Robert Owens Andres as an expert in ergonomics and biomechanics and Dr.
Robert Samuel Widmeyer as an expert in orthopedic surgery. We disagree.

               We review the circuit court’s decision to exclude evidence for an abuse of
       discretion. An abuse of discretion occurs when the trial court chooses an outcome
       falling outside the range of principled outcomes. We review de novo questions of
       law underlying evidentiary rulings, including the interpretation of statutes and
       court rules. The admission or exclusion of evidence because of an erroneous
       interpretation of law is necessarily an abuse of discretion. [Elher v Misra, 499
       Mich 11, 21; 878 NW2d 790 (2016) (quotation marks and footnotes omitted.]

       “When a party files a FELA case in state court, we apply federal substantive law to
adjudicate the claim while following state procedural rules.” Hughes v Lake Superior &
Ishpeming R Co, 263 Mich App 417, 421; 688 NW2d 296 (2004) (citation omitted). MRE 702
and MCL 600.2955 govern the admissibility of expert witness testimony.

       MRE 702 provides:

       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.

The trial court’s role is that of a gatekeeper and it may “admit evidence only once it ensures,
pursuant to MRE 702, that expert testimony meets that rule’s standard of reliability.” 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).

       Similarly, 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.



                                                -2-
       (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.

Not all seven factors are relevant in every case. Elher, 499 Mich at 27. While each factor is to
be considered by the trial court, not every factor must favor the proffering party. Chapin v A & L
Parts, Inc, 274 Mich App 122, 137; 732 NW2d 578 (2007).

       Additionally, a 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.
“[T]he 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. Instead, the focus is on the scientific validity of the
expert’s method, not the correctness or soundness of the expert’s testimony.” 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).

                                          A. ANDRES

        The trial court did not abuse its discretion when it denied defendant’s motion to exclude
Andres from testifying. Andres received an undergraduate degree in Engineering Science from
the University of Michigan (“UM”) in 1973, a Master’s degree from UM in 1976, and PhD in
bioengineering from the UM in 1979. His PhD was funded by NASA and the National Institutes
of Occupational Safety and Health (“NIOSH”). Andres did one year of post-doctoral work and
was a lecturer at UM for four years. He left in 1984 to work in a joint appointment at the
Department of Exercise Science and Industrial Engineering at the University of Massachusetts
until 1992. In 1993, Andres incorporated his business – Ergonomic Engineering, Inc. He
assisted companies whose employees had an occurrence of muscular or skeletal injuries. Andres
published approximately 50 peer review publications.

      Andres estimated that he had been in railroad yards more than 150 times and had
conducted 29 site inspections for carmen over the years. In fact, Andres received funding from


                                                -3-
the Federal Railroad Administration (“FRA”) to perform research on the effects of walking on
different sized rocks. Andres’s June 22, 2016, report concluded:

              The following conclusions have been reached based on my review of the
       material and my education, training, experience, and background in ergonomics
       research and the practice of ergonomics with industrial clients:

               Performing the job tasks of carmen/car inspectors generally exposes
       workers to certain ergonomic risk factors (i.e. lifting, walking on uneven surfaces,
       kneeling and squatting) which generally have been associated with (among other
       injuries and/or illnesses) cumulative trauma disorders of the lower extremities and
       specifically the hips. Based on what I have learned and observed, including my
       knowledge and analysis of Mr. Lilly’s work, during the relevant time period,
       generally Mr. Lilly was exposed to repetitive work in several of his job tasks (e.g.
       walking on uneven surfaces, squatting or kneeling to replace brake shoes,
       crawling under cars to chalk tail pin retainer bolts, coupling air hoses). This
       repetitive work required awkward postures of the lower extremities and involved
       the exertion of forces to climb, lift, push, pull, and carry.

               Generally, to mitigate the effects of certain ergonomic risk factors for
       cumulative trauma disorders of the lower extremities, it is recommended by
       OSHA, the AAR, NSC, NIOSH, and GAO[2], and me in my industrial practice,
       that a company:

                  1. Perform an ergonomic screening or job analysis to prioritize jobs
                     for intervention. Based on the materials I have seen at this point,
                     during the relevant time period, [defendant] generally did not
                     perform such an ergonomic screening or job analysis to prioritize
                     jobs for interventions.

                  2. Implement engineering (preferably) or administrative controls to
                     decrease worker exposure to ergonomic risk factors by reducing
                     force exertion requirements, improving working positions to
                     reduce awkward posture, or improving working conditions like the
                     walking surfaces. Based on the material I have seen, during the
                     relevant time period, [defendant] generally did not implement such
                     engineering and/or administrative controls. Crew sizes were
                     decreased, no systematic walkway maintenance programs were
                     implemented, and a tool to make it easier to couple air hoses in
                     cold weather (Mertin’s bar) was not provided.




2
  At a separate motion hearing, the trial court ruled that some of these entities could not be
referenced and should be redacted from Andres’s report.


                                               -4-
                   3. Administer the following ergonomic training to its employees:
                      ergonomic risk factors for the lower extremity and early signs and
                      symptoms of musculoskeletal disorders. Based on the materials I
                      have seen, during the relevant time period, [defendant] generally
                      did not administer such ergonomic training in the following regard:
                      Mr. Lilly was not trained to recognize lower extremity ergonomic
                      risk factors, and he was not told about early signs and symptoms of
                      musculoskeletal disorders.

              Generally, to treat and control certain lower extremity work-related
       musculoskeletal disorders of a non-traumatic origin, it is recommended by OSHA,
       the AAR, NSC, NIOSH, the GAO, and me in my industrial practice, that a
       company implement the following medical management program: utilize
       symptom surveys, and encourage early reporting of signs and symptoms. Based
       on the materials I have seen, during the relevant time period, [defendant]
       generally did not implement such a program in that they never administered
       symptoms surveys nor did they encourage the early reporting of signs and
       symptoms.

               In summary, for all of the reasons cited above, it is my opinion that
       [defendant] failed to provide Mr. Lilly with a reasonable safety and health
       program that dealt with ergonomic issues that met standard industry work
       practices, and, as such, failed to provide Mr. Lilly with a reasonably safe work
       place.

        Defendant’s primary argument in the trial court and on appeal is that Andres could not
define a threshold level of exposure, which would determine whether and when a carman would
develop hip OA. A similar argument was rejected in Hardyman v Norfolk & Western R Co, 243
F 3d 255, 265 (CA 6, 2001). In that case, 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 brakemen [would] essentially . . . foreclose
plaintiffs from recovering for [carpal tunnel syndrome (“CTS”)] against negligent employers
unless their particular job has been the subject of a national, epidemiological study on CTS.” It
follows that requiring such evidence regarding hip OA would be unduly burdensome on a
plaintiff. Here, Andres’s opinions were based on peer-reviewed articles addressing the risks
associated with repetitive tasks. Andres’s methods could be tested but the industry worked to
suppress publication of such results. Andres’s opinion that cumulative trauma is associated with
the risk of OA is generally accepted by the scientific community and other courts have endorsed
Andres’s methodology. There was support for his theory that plaintiff’s hip OA was the result of
cumulative trauma.

       In Dixon v Grand Trunk Western RR Co, 259 F Supp 3d 702 (ED Mich 2016), this same
defendant raised a number of similar arguments where the plaintiff claimed that his knee OA was
the result of his working conditions. The defendant argued that there was a lack of scientific
foundation supporting the plaintiff’s expert witness testimony regarding causation. The United
States District Court for the Eastern District of Michigan, citing Hardyman, determined that
expert witness opinions on causation were properly admitted because the plaintiff’s expert spoke

                                                -5-
with the plaintiff, evaluated the plaintiff’s work history and medical history, and then, relying on
the expert’s expertise, determined “those motions [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. The same is true here. Andres’s opinions were rationally derived from a sound
foundation. He interviewed plaintiff, considered plaintiff’s medical records, case materials,
scientific literature, and other material concerning exposure to ergonomic risk facts. There was
no reason to inspect plaintiff’s jobsite because Andres properly relied on plaintiff’s self-reported
history.

      The trial court did not abuse its discretion when it denied defendant’s motion to strike
Andres’s testimony.

                                         B. WIDMEYER

        The trial court did not abuse its discretion when it denied defendant’s motion to exclude
Widmeyer from testifying. Widmeyer is a board certified orthopedic surgeon. He was licensed
to practice in Virginia, North Carolina, Florida, and Maryland and had been qualified to testify as
an expert in repetitive trauma in each of those states. Widmeyer treated a number of railroad
workers for acute injuries over the years. He first learned of the concept of cumulative trauma
injury in medical school in 1964. Widmeyer personally examined plaintiff and reviewed all of
his records. Widmeyer also reviewed deposition transcripts and plaintiff’s job description. He
made the following observations:

               The first is there is no question at all that Mr. Lilly’s work tasks during his
       decades of employment with the Railroad have far exceeded the limits that his hip
       joints could withstand. As a result at a very young age he has experienced
       progressive and complete destruction of his hip joints from those activities . . .

              He is clearly unable to do his regular work and the restrictions placed on
       him by his orthopedic surgeon will remain permanent.

               He has no other risk factors that would contribute to the early destruction
       of the joints such as family history of arthritis, any underlying arthritic or other
       disease processes, and he has had no specific acute trauma to either hip joint from
       a single event, merely the repetitive overactivity of the joints placed under an
       abnormal strain and in unusual positions.

               His situation is very simplistic. His activities with the Railroad have been
       entirely responsible for the destruction of his hip joint, and therefore all of the
       treatment of hip joints related to his Railroad employment, and any future
       treatment that he may require regarding his hip joints will be related to his
       employment with the Railroad.

        Widmeyer testified that there were peer review journal articles and trade publications that
supported the concept of cumulative trauma disorder as a cause of arthritis. Widmeyer testified
that “repetitive injury has been going on forever and it still is.” Widmeyer had opportunities to
observe carmen performing their tasks in railroad yards. He also had an opportunity to walk on
mainline ballast. The ballast put undue stress on the lower extremities. Likewise, kneeling and
                                                -6-
twisting extended the joints past the neutral position and caused torqueing. Specifically, in terms
of plaintiff, Widmeyer calculated over his 15 years working as a carman, plaintiff performed four
million squats inspecting railcar and six million squats inspecting the autorack, which was
“excessive and repetitive.”

        Plaintiff, whom Widmeyer personally examined, was not obese or overweight. He was
relatively young at age 54. Widmeyer concluded that “the massive overuse of his hip joints in
abnormal positions with abnormal loadings day after day after decade after decade simply wore
the joints down.” As for the theory that plaintiff suffered from FAI, Widmeyer opined that
plaintiff would have had problems much sooner if he had FAI. Widmeyer believed that it was a
contributing cause of plaintiff’s problems and that he had it at the time he had his arthritis.
However, while defendant’s expert suggested that the FAI caused the osteoarthritis, it was
Widmeyer’s opinion that the OA caused the impingement. Plaintiff had a gradual destruction of
the hip joints and the cartilage wore down.

       As with Andres, the trial court properly concluded that Widmeyer’s testimony was not
based on junk science. Widmeyer spoke with plaintiff, evaluated plaintiff’s work history and
medical history, and then, relying on his own medical expertise in treating patients with OA,
determined that plaintiff’s work tasks during his decades of employment with defendant far
exceeded the limits that his hip joints could withstand.

     The trial court did not abuse its discretion when it denied defendant’s motion to strike
Widmeyer’s testimony.

          III. DEFENDANT’S MOTIONS FOR DIRECTED VERDICT AND JNOV

       Defendant argues that plaintiff’s case should have been dismissed, given the absence of
evidence that defendant knew or should have known that plaintiff’s work environment was
unreasonably unsafe. We disagree.

               This Court reviews de novo the trial court’s decisions on a motion for a
       directed verdict and a motion for JNOV. A directed verdict is appropriate only
       when no factual question exists on which reasonable jurors could differ. The
       appellate court reviews all the evidence presented up to the time of the directed
       verdict motion, considers that evidence in the light most favorable to the
       nonmoving party, and determines whether a question of fact existed. In reviewing
       the decision on a motion for JNOV, this Court views the testimony and all
       legitimate inferences drawn from the testimony in the light most favorable to the
       nonmoving party. If reasonable jurors could honestly have reached different
       conclusions, the jury verdict must stand. [Diamond v Witherspoon, 265 Mich
       App 673, 681–82; 696 NW2d 770, 776 (2005) (citations omitted).]

       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.]
                                                -7-
        “[W]hen Congress enacted FELA in 1908, its attention was focused primarily upon
injuries and death resulting from accidents on interstate railroads. Cognizant of the physical
dangers of railroading that resulted in the death or maiming of thousands of workers every year,
Congress crafted a federal remedy that shifted part of the human overhead of doing business
from employees to their employers.” Consol Rail Corp v Gottshall, 512 US 532, 542; 114 S Ct
2396, 2403–2404; 129 L Ed 2d 427 (1994) (citation and quotation marks omitted). To effectuate
this remedial goal, “a relaxed standard of causation applies under FELA.” Id. 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).

        “A railroad has a duty to use reasonable care in furnishing its employees with a safe place
to work.” Atchison, Topeka & Santa Fe R Co v Buell, 480 US 557, 558; 107 S Ct 1410; 94 L Ed
2d 563 (1987). The FELA is not, however, a workers’ compensation statute; rather, the basis of
an employer’s liability “is his negligence, not the fact that injuries occur.” Gottshall, 512 US at
543. What constitutes negligence under the FELA is a federal question that “generally turns on
principles of common law.” Id.

        To prevail under the FELA, a plaintiff need not show that the employer had actual notice
of a dangerous condition in the workplace. Szekeres v CSX Transp, Inc, 617 F3d 424, 430–431
(CA 6, 2010). “The law is clear that notice under the FELA may be shown from facts permitting
a jury to infer that the defect could have been discovered by the exercise of reasonable care or
inspection.” Id. at 430.

                Reasonable foreseeability of harm . . . is indeed an essential ingredient of
       FELA negligence. The jury, therefore, must be asked, initially: Did the carrier
       fail to observe that degree of care which people of ordinary prudence and sagacity
       would use under the same or similar circumstances? In that regard, the jury may
       be told that the railroad’s duties are measured by what is reasonably foreseeable
       under like circumstances. Thus, if a person has no reasonable ground to
       anticipate that a particular condition . . .would or might result in a mishap and
       injury, then the party is not required to do anything to correct the condition. 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. [CSX Transp, 564 US at 703–704 (footnotes, citations and quotation
       marks omitted).]

“The 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 the inference” that the negligence of an employer played any part in causing the injury at
issue. Rogers v Missouri Pacific R Co, 352 US 500, 508; 77 S Ct 443; 1 L Ed 2d 493 (1957).

        The trial court correctly determined that knowledge was a matter for the jury to decide.
In his report, Andres opines that:


                                                -8-
             The [Association of American Railroads (“AAR”)] also evaluated an
       ergonomics process to advance safety at the railroads (Ergonomics Programs at
       Heavy, Industrial Corporations, AAR Research and Test Department, by P.
       McMahan and G. Page, February, 1994). The process involved six major
       elements:

                  1. Define and design the work processes,

                  2. Worksite analysis and monitoring,

                  3. Analysis of possible problems and solution options,

                  4. Implementation of solutions,

                  5. Training and education, and

                  6. Medical management.

Andres then reviewed the commonly accepted ergonomic risk factors for the lower extremities
and how OA has been associated with occupational activities like those plaintiff experienced.
Andres noted that defendant could have screened for the presence of known risk factors, but
failed to do so. In fact, the industry resisted ergonomics. Andres concluded that defendant: (1)
failed to perform a systemic worksite analysis as part of a comprehensive safety and health
program taking ergonomics into consideration; (2) failed to implement systematic hazard
prevention and control as part of a comprehensive safety and health program taking ergonomics
into consideration; (3) failed to provide medical monitoring of employees for musculoskeletal
disorders and intimidated those from reporting early signs and symptoms of musculoskeletal
disorders, thereby failing to implement a medical management program with ergonomics in
mind; and, (4) failed to provide effective training to understand what cumulative trauma was or
to recognize early signs. He concluded that defendant “failed to provide Mr. Lilly with a
reasonable safety and health program that dealt with ergonomic issues that met standard industry
work practices, and, as such, failed to provide Mr. Lilly with a reasonably safe work place.”

       The trial court properly denied defendant’s motion for directed verdict and JNOV,
leaving the issue of notice for the jury to decide.

                                      IV. PRECLUSION

       Defendant argues that plaintiff’s ballast claims were precluded by the Federal Railway
Safety Act (“FRSA”), 49 USC 20101 et seq. We disagree.

       “Whether a federal law preempts a state law or precludes another federal law is a
question of law which we review de novo.” Nickels v Grand Trunk W RR, Inc, 560 F3d 426, 429
(CA 6, 2009).

        Defendant relies primarily on the Nickels decision. The plaintiffs in Nickels each claimed
that the defendant railroads failed to provide a safe working environment by using large mainline
ballast underneath and adjacent to tracks with heavy foot traffic. Nickels, 560 F 3d at 428. The

                                               -9-
district courts granted the defendants’ motion for summary judgment, finding that the plaintiffs’
FELA claims would undermine the FRSA’s express intent to achieve national uniformity in
railroad safety regulations. Id. The Sixth Circuit had to examine the interplay between FELA
and FRSA, both of which are designed to promote railway safety. FELA provides work safety to
railroad employees while FRSA seeks to promote safety in every area of railroad operations to
reduce accidents. Id. at 429. The FRSA contains a preemption clause in order to ensure that
“[l]aws, regulations, and orders related to railroad safety . . . shall be nationally uniform to the
extent practicable.” 49 USC 20106(a)(1). The preemption clause provides that the states may
regulate railroad safety “until the Secretary of Transportation . . . prescribes a regulation or
issues an order covering the subject matter of the State requirement.” 49 USC § 20106(a)(2). As
to ballast, the FRSA provides:

       Unless it is otherwise structurally supported, all track shall be supported by
       material which will—

       (a) Transmit and distribute the load of the track and railroad rolling equipment to
       the subgrade;

       (b) Restrain the track laterally, longitudinally, and vertically under dynamic loads
       imposed by railroad rolling equipment and thermal stress exerted by the rails;

       (c) Provide adequate drainage for the track; and

       (d) Maintain proper track crosslevel, surface, and alinement. [49 CFR 213.103.]

        Citing Lane v RA Sims, Jr, Inc, 241 F 3d 439, 443 (5th Cir 2001) and Waymire v Norfolk
& W Ry Co, 218 F 3d 773, 776 (7th Cir 2000), the Sixth Circuit confirmed that the uniformity
demanded by the FRSA can only be achieved if the regulations are applied similarly to FELA
claims. Nickels, 560 F 3d at 430. The Court added that although “Lane and Waymire addressed
FELA claims of unsafe train speed in light of FRSA speed-limit regulations, the FRSA’s concern
for uniformity leads us to reach the same conclusion regarding ballast regulations. And while
railroads may face a lesser likelihood of state-law claims alleging negligent ballast composition,
any exposure to conflicting standards undermines uniformity.” Id. Therefore, “the plaintiffs’
claims are precluded by the FRSA if they would have been preempted if brought by a non-
employee under state law.” Id.

         The Nickels Court concluded that regulation 49 CFR 213.103 covered the subject matter
of the plaintiffs’ claims. It noted that “[r]ather than prescribing ballast sizes for certain types or
classes of track, the regulation leaves the matter to the railroads’ discretion so long as the ballast
performs the enumerated support functions. In this way, the regulation substantially subsumes
the issue of ballast size.” Nickels, 560 F3d at 431. The Court further noted that there need not
be any inconsistency for pre-emption to apply: “the fact that track stability and safe footing are
not mutually exclusive does not mean that § 213.103 has not covered the subject of ballast size.
Preclusion and preemption under the FRSA are not limited to situations where the federal or
state standard is incompatible with a regulation.” Nickels, 560 F3d at 431–432.

       As the parties note, Nickels has not been uniformly applied, with some courts following
Nickels and other declining to do so. Plaintiff notes that, regardless, Nickels has been abrogated
                                                -10-
by POM Wonderful LLC v Coca-Cola Co, 573 US 102; 134 S Ct 2228; 189 L Ed 2d 141 (2014).
However, even if we found that POM had no impact on Nickels, defendant is not entitled to relief
on this issue. Specifically, plaintiff never alleged that defendant used improper ballast. Instead,
the issue was raised by defendant’s motion in limine and further addressed by their own expert.
Plaintiff’s counsel did not reference ballast in his opening or closing statements. While there
was testimony of the difficulty on walking on different sized ballasts, the focus at trial was
whether squatting, bending, kneeling, and awkward positions placed undue weight on plaintiff’s
hips, contributing to his hip OA. Plaintiff alleged that defendant failed to provide a reasonably
safe workplace for reasons beyond the issue of ballast. Plaintiff did not suggest that the ballast
was inappropriate; he suggested that defendant failed to provide a reasonable safety and health
program that dealt with ergonomic issues. The trial court instructed the jury regarding plaintiff’s
theory of the case:

              Plaintiff, Steven Lilly, alleges that Defendant, Grand Trunk Western
       Railroad Company, at the time and place in question was negligent in the
       following particulars.

               That Grand Trunk Western Railroad Company through its employees or
       agents failed to provide Plaintiff Steven Lilly with a reasonably work safe place
       by failing to implement a reasonable safety and health program that dealt with
       ergonomic issues that met standard industry work practices.

              Including but not limited to a failure to perform an ergonomic screening or
       job analysis, failing to increase engineering or administrative controls, to decrease
       worker exposure to ergonomic risk factors.

               Failing to train employees on ergonomic risk factors of the lower
       extremities, and early signs and symptoms of musculoskeletal disorders, and by
       failing to provide appropriately empowered and appropriate tools to perform his
       work task in a reasonably safe manner.

       Defendant is not entitled to relief on this issue regardless of whether the FRSA precluded
reference to ballast size and suitability.

                                   V. JURY INSTRUCTIONS

                                 A. STANDARD OR REVIEW

        “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


                                               -11-
jury.” Id. at 457–458. Reversal is not required unless failing to do so would be “inconsistent
with substantial justice.” MCR 2.613(A).

                 B. PLAINTIFF’S ALLEGED PRE-EXISTING CONDITION

        Defendant argues that the trial court impermissibly failed to instruct the jury about the
effect of plaintiff’s pre-existing FAI.

        The trial court did not abuse its discretion when it refused to give defendant’s requested
instructions because defendant’s expert testified that plaintiff’s alleged pre-existing FAI would
have resulted in his hip OA regardless of what he did at work. Therefore, defendant denied
playing any part in causing plaintiff’s injuries. Moreover, the jury was properly instructed that it
could not find for plaintiff if it did not first conclude that defendant’s negligence caused or
contributed to his injury. The trial court instructed the jury:

               In order to prove the essential elements of Plaintiff Steven Lilly’s claims
       against Defendant, Grand Trunk Western Railroad Inc, Plaintiff Steven Lilly has
       the burden to establish by a preponderance of the evidence in this case the
       following facts.

              First, that Defendant Grand Trunk Western Railroad, Inc was negligent in
       one or more of the particulars alleged.

               And 2, that Defendant Grand Trunk Western Railroad’s negligence caused
       or contributed in whole or in part to some injury and consequent damage
       sustained by Plaintiff, Steven Lilly.

The jury was, therefore, equipped with the knowledge that defendant could not be negligent if it
did not cause plaintiff’s injury.

                     C. SPECIAL INSTRUCTION ON DOSE RESPONSE

        Defendant argues that the trial court’s instruction concerning dose response was harmful
error and that the jury should have been allowed to consider the lack of a dose response
relationship. We disagree.

       At plaintiff’s request, the trial court instructed the jury:

              A plaintiff does not have the burden of proving causation by producing
       medical studies involving railroad workers or studies which establish a base level
       of exposure which will cause a worker to develop a medical condition when that
       level will always vary from individual to individual.

               Stated more succinctly, Plaintiff does not need to prove a dose response
       relationship.

      Defendant takes this opportunity to repeat the causation arguments previously rejected.
Defendant’s primary argument in the trial court was that plaintiff could not define a threshold

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level of exposure where a carman would develop hip OA. A similar argument was rejected in
Hardyman. In that case, 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 [brakemen would] essentially . . . foreclose plaintiffs
from recovering for [carpal tunnel syndrome (“CTS”)] against negligent employers unless their
particular job has been the subject of a national, epidemiological study on CTS.” Hardyman,
243 F 3d at 265. It follows that requiring such evidence regarding hip OA and an instruction
thereon would have been inappropriate.

                                 D. ASSUMPTION OF RISK

        Defendant argues that the trial court improperly instructed the jury on assumption of the
risk because assumption of risk is not a defense under FELA. We disagree.

       45 USC 54 clearly provides that assumption of the risk is not a defense to a FELA action.
The statute 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.

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. 45
USC 53 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 damages
       shall be diminished by the jury in proportion to the amount of negligence
       attributable to such employee.

Therefore, plaintiff cannot be found to be negligent for continuing his work even if he is aware
of defendant’s negligence, but plaintiff can be found contributorily negligent.

        “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).



                                              -13-
        The assumption of risk jury instruction was properly given by the trial court where
defendant raised the issue during trial. During cross-examination, plaintiff acknowledged that
the physical tasks came with the territory of being a carman. Defendant appeared to suggest that
plaintiff knowingly and voluntarily accepted a dangerous condition.

                                         VI. DAMAGES

       Defendant argues that the jury ignored the trial court’s instruction to reduce their verdict
to present day value. Defendant maintains that the trial court should have granted defendant’s
motion for new trial and reduced the verdict to present value in the final judgment. We agree.

        Excessive damages “influenced by passion or prejudice” can form the basis of a new
trial. MCR 2.611(1)(d). “Alternatively, a trial court may offer the prevailing party an
opportunity to consent to judgment in the highest amount the court finds is supported by the
evidence.” Heaton v Benton Const Co, 286 Mich App 528, 538; 780 NW2d 618 (2009). “This
Court reviews a trial court’s decision regarding a motion for remittitur or a new trial for an abuse
of discretion.” Id. “An abuse of discretion occurs when a court chooses an outcome that is
outside the range of principled outcomes.” Id.

       During closing arguments, plaintiff’s counsel discussed the total economic loss plaintiff
had suffered :

               But Column 3, all right, Column 3, is what Mr. Lilly’s past wage loss is.
       And if you add up those, and if you need a calculator, we can get you a calculator.
       But if you add up 51 to 55, you’re going to come up with $252,502.

               And if you calculate his future wage loss from 2017 ‘til the time he’s 65,
       you’re going to come up with a total of $1,015,285. That’s the economic loss.
       That’s the total economic loss.

And when discussing Question #4 of the Verdict Form during closing arguments, plaintiff’s
counsel urged:

                Four, what is the total amount of Plaintiff’s damages that he has
       sustained? Well I suggest to you that 1,015,285 is the economic loss. I suggest to
       you that $1,500,000 is the compensation for the loss of his health, the loss of his
       vitality, the loss of his involvement with his family.

              So if you add those two up you’ve got 1.5 million and you’ve got
       $1,015,285, and I could do it on the pad but I’s, I’ll do it in my head, okay. It’s
       $2,515,285.

       The trial court then instructed the jury:

               If you find that Plaintiff Steven Lilly is reasonably certain to lose earnings
       in the future, then you must determine the present value in dollars of such future
       damages since the award of future damages necessarily requires that payment be


                                                   -14-
       made now in one lump sum, and Plaintiff Steven Lilly will have use of the money
       now for a loss that will not occur until some future date.

              You must decide what those future loses [sic] will be and then make a
       reasonable adjustment for current value.

        The jury calculated plaintiff’s damages at $2,515,285. The jury verdict form did not ask
the jury to provide separate awards for economic and non-economic damages. It simply
provided: “QUESTION NO. 4: What is the total amount of plaintiff’s damages plaintiff has
sustained?” The jury answered $2,515, 285.

         “[T]he adequacy of the amount of the damages is generally a matter for the jury to
decide.” Heaton, 286 Mich App at 538. “[A] verdict should not be set aside merely because the
method the jury used to compute damages cannot be determined.” Id. Here, there is no room for
guesswork. Clearly, the method the jury utilized was that suggested by plaintiff’s counsel –
adding economic damages ($1,015,285) to non-economic damages ($1,500,000) for a grand total
of $2,515, 285. The jury obviously failed to follow the trial court’s instruction to reduce
damages to present value. The award should be reduced to reflect plaintiff’s expert’s
conclusions that plaintiff’s loss of future earnings – reduced to present value – is $947,355 –a
difference of $67,930. Pursuant to MCR 2.611(E)(1), the trial court abused its discretion in
failing to reduce the award.

        Affirmed in part, reversed in part, and remanded to grant remittitur. We do not retain
jurisdiction.

                                                           /s/ Kirsten Frank Kelly
                                                           /s/ Michael J. Riordan
                                                           /s/ Michael F. Gadola




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