                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2008-CA-01831-SCT

ROBERT W. KENNEDY

v.

ILLINOIS CENTRAL RAILROAD COMPANY

                           ON MOTION FOR REHEARING

DATE OF JUDGMENT:                          10/15/2008
TRIAL JUDGE:                               HON. MICHAEL M. TAYLOR
COURT FROM WHICH APPEALED:                 PIKE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                   JOHN TIMOTHY GIVENS
                                           TIMOTHY W. PORTER
                                           PATRICK C. MALOUF
                                           WILLIAM S. GUY
                                           C. E. SOREY, II
                                           WAYNE DOWDY
ATTORNEYS FOR APPELLEE:                    LONNIE D. BAILEY
                                           GLENN F. BECKHAM
NATURE OF THE CASE:                        CIVIL - PERSONAL INJURY
DISPOSITION:                               REVERSED AND REMANDED - 03/11/2010
MOTION FOR REHEARING FILED:                01/20/2010
MANDATE ISSUED:


       EN BANC.

       CARLSON, PRESIDING JUSTICE, FOR THE COURT:

¶1.    The motion for rehearing filed by Counsel for the Appellee, Illinois Central Railroad

Company is granted. The prior opinion is withdrawn, and this opinion is substituted therefor.

¶2.    Robert W. Kennedy filed this action against Illinois Central Railroad Company

pursuant to the Federal Employers’ Liability Act for damages he incurred as a result of

alleged exposure to asbestos. After the defense rested its case-in-chief during the course of
the trial, the Pike County Circuit Court directed a verdict on the issue of damages in favor

of Illinois Central Railroad Company, and thereafter entered a final judgment, from which

Robert W. Kennedy has appealed to this Court. Finding error, we reverse the trial court’s

judgment in favor of Illinois Central Railroad Company and remand this case for further

proceedings consistent with this opinion.

               FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶3.    Robert Kennedy was an employee of Illinois Central Railroad Company (Illinois

Central) from 1948 until his retirement in 1992. Kennedy allegedly developed asbestosis,

and on August 31, 2006, he filed suit against Illinois Central claiming exposure to asbestos

while an employee of Illinois Central in McComb. Kennedy alleged that, pursuant to the

Federal Employers’ Liability Act (FELA), 45 U.S.C.A. § 51 (2009), Illinois Central was

negligent, inter alia, for failing to provide him with a reasonably safe workplace and failing

to warn him of the hazards of exposure to asbestos.

¶4.    On August 25, 2008, the jury trial of this matter commenced in the Pike County

Circuit Court, Judge Michael M. Taylor presiding. At the conclusion of all the evidence, on

August 29, 2008, Judge Taylor directed a verdict in favor of Illinois Central, stating, in part:

       The evidence is simply, in the Court's opinion – even when viewed under the
       very deferential standard that the Court's called upon to exercise in this case,
       and accepting as true all the Plaintiff's evidence, there is simply nothing to tie
       an award – certainly an award of economic damages to, and nor (sic) has the
       Court heard anything to tie an award of noneconomic damages to. And so for
       those reasons the Court will grant the Motion for Directed Verdict.
       ...
       And I probably didn't speak precisely there. And it's not so much a question
       – obviously pain and suffering are always difficult to quantify, and they're not

                                               2
       subject to any sort of absolute calculation. My saying that there was no
       rational basis for any – to support an award goes more to another issue. And,
       like I say, I explained it probably poorly, which is to say that I did not hear
       testimony from the witness stand, even in view – accepting as true everything
       your witnesses said, with all reasonable inferences flowing from that, that Mr.
       Kennedy would be better off today without asbestosis. And that's the basis of
       my ruling is that I understand you're saying he would be, and asbestosis is not
       a good thing and – but there's no – I did not hear – there is not in the record
       testimony to support an award that Mr. Kennedy would be better off today
       without asbestosis, that he would be in any different condition than he is now.

Subsequently, on October 20, 2008, the trial court entered its Judgment on Motion for

Directed Verdict and dismissed the case with prejudice. As a result, Kennedy perfected this

appeal.

                                      DISCUSSION

¶5.    Kennedy presents but one issue for this Court to decide.

       WHETHER THE CIRCUIT COURT ERRED IN DIRECTING A
       VERDICT FOR ILLINOIS CENTRAL RAILROAD COMPANY ON
       THE ISSUE OF DAMAGES.1

¶6.    In reviewing directed verdicts, this Court’s standard of review is de novo. Owens v.

Miss. Farm Bureau Cas. Ins. Co., 910 So. 2d 1065, 1069 (Miss. 2005) (citing Skrmetta v.

Bayview Yacht Club, Inc., 806 So. 2d 1120, 1124 (Miss. 2002); Morgan v. Greenwaldt, 786

So. 2d 1037, 1041 (Miss. 2001)). “In reviewing a motion for a directed verdict this Court



       1
        Robert Kennedy concedes in his brief that he did not present any evidence at trial
concerning economic damages. Specifically, Kennedy asserts in his brief that “[w]hile the
Appellant may not have introduced any proof of economic damages at trial, the jury was still
entitled to consider the issue of noneconomic damages.” Thus, we focus today on the sole
issue of whether the trial judge should have allowed the jury to consider an award of
noneconomic damages.

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must decide whether the facts presented, together with any reasonable inferences, considered

in the light most favorable to the nonmoving party, point so overwhelmingly in favor of the

movant that reasonable jurors could not have returned a verdict for the plaintiff.” Robley v.

Blue Cross/Blue Shield of Miss., 935 So. 2d 990, 996 (Miss. 2006) (citation omitted). “If

we find that the evidence favorable to the non-moving party and the reasonable inferences

drawn therefrom present a question for the jury, the motion should not be granted.” Morgan,

786 So. 2d at 1041-42 (citation omitted).

¶7.    This claim was brought under FELA, which provides in pertinent part that:

       Every common carrier by railroad while engaging in commerce between any
       of the several States or Territories, or between any of the States and
       Territories, or between the District of Columbia and any of the States or
       Territories, or between the District of Columbia or any of the States or
       Territories and any foreign nation or nations, shall be liable in damages to any
       person suffering injury while he is employed by such carrier in such
       commerce, or, in case of the death of such employee, to his or her personal
       representative, for the benefit of the surviving widow or husband and children
       of such employee; and, if none, then of such employee's parents; and, if none,
       then of the next of kin dependent upon such employee, 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, or by reason of any defect or insufficiency, due
       to its negligence, in its cars, engines, appliances, machinery, track, roadbed,
       works, boats, wharves, or other equipment.

45 U.S.C.A. § 51.

¶8.    This Court has stated that “‘[t]o prevail under the Act, a plaintiff must prove that (1)

the defendant is a common carrier by railroad engaged in interstate commerce; (2) he was

employed by the defendant with duties advancing such commerce; (3) his injuries were

sustained while he was so employed; and (4) his injuries resulted from the defendant's


                                              4
negligence.’” Canadian Nat’l/Ill. Cent. R.R. Co. v. Hall, 953 So. 2d 1084, 1090-91 (Miss.

2007) (quoting Smith v. Med. & Surgical Clinic Ass'n, 118 F.3d 416, 419 (5th Cir. 1997)).

FELA is founded on common-law concepts of negligence and injury. Consol. Rail Corp.

v. Gottshall, 512 U.S. 532, 543, 114 S. Ct. 2396, 2404, 129 L. Ed. 2d 427 (1994). However,

“FELA supplants an employer’s common law duty with a ‘far more drastic duty of paying

damages for injury or death at work due in whole or in part to the employer’s negligence.’”

Canadian Nat’l/Ill. Cent. R.R. Co., 953 So. 2d at 1091 (quoting Rogers v. Mo. Pac. R.R.

Co., 352 U.S. 500, 507-08, 77 S. Ct. 443, 449, 1 L. Ed. 2d 493, 500 (1957)).

¶9.    Kennedy argues that a significantly lower burden of proof is imposed upon the

plaintiff under FELA; however, Illinois Central asserts that only the causation prong of a

common-law negligence analysis is modified by FELA. “Under the statute, the plaintiff’s

burden of proving causation is significantly relaxed compared to the burden in an ordinary

negligence action. The question is ‘whether negligence of the employer played any part,

however small, in the injury or death which is the subject of the suit.’” Id. (citing Consol.

Rail Corp., 512 U.S. at 543; quoting Rogers, 352 U.S. at 508). When there is proof, even

though entirely circumstantial, from which a jury may with reason make this inference of

employer negligence, the burden of the employee is met, and the obligation of the employer

to pay damages arises. Rogers, 352 U.S. at 508.

¶10.   In today’s case, the trial court ruled that there were questions for the jury with respect

to duty, breach, and causation, or, in other words, that reasonable jurors could have returned

a verdict for Kennedy as to these elements of a negligence claim; but, on the other hand, the

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trial court determined that on the issue of damages, there was no evidence to support a jury

verdict for economic or noneconomic damages, and there was no testimony “to support an

award that Mr. Kennedy would be better off today without asbestosis, that he would be in

any different condition than he is now.” However, we have stated that “‘unless the evidence

is so speculative that no reasonable juror could find more than nominal damages,’ the trial

court may not direct a verdict against the plaintiff.” Tupelo Redev. v. Gray Corp., Inc., 972

So. 2d 495, 516 (Miss. 2007) (quoting Wall v. Swilley, 562 So. 2d 1252, 1256 (Miss.1990)).

Damages must be shown with reasonable certainty and should not be left to only speculation

and conjecture. Flight Line, Inc. v. Tanksley, 608 So. 2d 1149, 1164 (Miss. 1992) (citations

omitted). However, a plaintiff should not be deprived of the right to recover simply because

of the inability to prove with absolute certainty the extent of the loss. Id. (citations omitted).

“‘If the damage is certain, the fact that its extent is uncertain does not prevent a recovery.’”

Id. (citations omitted). Further, “[t]he amount of damages to be awarded to an injured

litigant is primarily a question of fact for the jury.” Edwards v. Ellis, 478 So. 2d 282, 289

(Miss. 1985) (citations omitted).

¶11.   The testimony of Dr. Barry L. Whites, Dr. Arnold Brody, and Kennedy presented

issues for jury determination. Dr. Whites, a pulmonologist, testified to a reasonable degree

of medical certainty that he thought Kennedy suffered from asbestosis.2 He testified that x-

rays of Kennedy’s lungs revealed linear markings which mean “fibrosis or scarring . . . . It


       2
      Dr. Whites testified to a reasonable degree of medical certainty that he thought
Kennedy suffered from emphysema as well.

                                                6
can be from asbestos, it can be from other interstitial3 lung disease, but it is obviously an

abnormality that shouldn’t be there.” Dr. Whites stated that in patients with scarring in the

lung, one hears what are referred to as crackles or Velcro rales, and he further testified to

hearing Velcro rales in both of Kennedy’s lungs, attributable to asbestosis. Dr. Whites also

affirmed that asbestosis is a disease that may progress, and it does not regress. Further, he

agreed that asbestos alone is a carcinogen and can cause cancer. Dr. Whites likewise

testified that, based on a pulmonary function test done in 2003, Kennedy had “airflow

obstruction, chronic airflow obstruction, he has findings here that are also consistent with

asbestos-related lung disease.” 4 According to Dr. Whites, asbestos, by itself, could cause

airflow obstruction, and asbestos had reduced Kennedy’s lung reserve. Dr. Whites also

testified that Kennedy’s two disease processes, emphysema and asbestosis, occurring

simultaneously, had further reduced Kennedy’s lung reserve.

¶12.   Dr. Arnold Brody, a Ph.D. researcher in the area of asbestos-related lung disease,

testified by video deposition that if a person had asbestosis, the lung’s elastic tissue was

replaced by scar tissue, “so a person’s lung can become stiff, and that’s when, if you measure

a restrictive process, that means a person has a stiff lung, that means they are restricted from

taking a deep breath.” Dr. Brody also testified to ways in which asbestosis causes shortness

of breath. Kennedy testified that he was in generally good health and did not have any


       3
        Interstitial is defined as “situated between the cellular components of an organ or
structure.” Webster’s New World Dictionary 707 (3rd College Ed. 1988).
       4
           This also was attributed to Kennedy’s severe emphysema.

                                               7
problems breathing when he quit smoking and retired in 1992, but he began experiencing

shortness of breath in 1994. He stated that his breathing had gotten worse since he quit

smoking, and he needed oxygen when doing any activities. Kennedy further testified that

he once was fairly active, but could no longer quail hunt, garden, or fish as he once did

because of his breathing problems. He also stated that he could no longer perform his yard

work; it took all of his “wind” to crank his chainsaw or weedeater, resulting in insufficient

energy to actually use his yard tools. Kennedy further testified that he had to purchase a

riding lawn mower and an electric weedeater to accomplish any yard work, but even when

operating a riding lawn mower, he was “in trouble” if the mower got stuck.

¶13.   The record before this Court provides evidence from which a reasonable juror could

find noneconomic damages.

       “‘Noneconomic damages’ means subjective, nonpecuniary damages arising
       from death, pain, suffering, inconvenience, mental anguish, worry, emotional
       distress, loss of society and companionship, loss of consortium, bystander
       injury, physical impairment, disfigurement, injury to reputation, humiliation,
       embarrassment, loss of the enjoyment of life, hedonic damages, other
       nonpecuniary damages, and any other theory of damages such as fear of loss,
       illness or injury.”

Miss. Code Ann. § 11-1-60(1)(a) (Supp. 2009). The testimony discussed supra certainly

created a question of fact for the jury with respect to pain, suffering, inconvenience, physical

impairment, disfigurement, and loss of the enjoyment of life. It was undisputed that Kennedy

also suffered from emphysema. However, it is a well-settled principle of tort law that the

defendant must take the plaintiff as the defendant finds him. See Jordan v. Atchison,

Topeka & Santa Fe Ry. Co., 934 F.2d 225, 228-29 (9th Cir. 1991) (FELA case). Further,

                                               8
under FELA, an employer is liable for damages for injury or death at work due in whole or

in part to the employer’s negligence. Canadian Nat’l/Ill. Cent. R.R. Co., 953 So. 2d at 1091

(citation omitted).

¶14.   We are thus constrained to find that the evidence favorable to Kennedy and the

reasonable inferences which could be drawn from the evidence presented questions for the

jury, not only with respect to duty, breach, and causation, but also as to noneconomic

damages. Stated differently, from the evidence found in the record before us, as well as all

reasonable inferences which may be drawn from the evidence, viewed in the light most

favorable to Kennedy, we cannot safely say that reasonable and fair-minded jurors in the

exercise of impartial judgment could have found only for Illinois Central on the issue of

noneconomic damages. Tupelo Redev., 972 So. 2d at 513. Therefore, we find that the

learned trial judge erred in granting a directed verdict in favor of Illinois Central at the

conclusion of the presentation of the evidence in this case.

                                     CONCLUSION

¶15.   Finding that the trial court erred in granting a directed verdict on the issue of

noneconomic damages and entering judgment in favor of Illinois Central Railroad Company

on the issue of noneconomic damages, we reverse the judgment of the Circuit Court of Pike

County, and remand this case for a new trial on all issues, consistent with this opinion.

¶16.   REVERSED AND REMANDED.

    WALLER, C.J., GRAVES, P.J., DICKINSON, LAMAR, KITCHENS,
CHANDLER AND PIERCE, JJ., CONCUR.        RANDOLPH, J., NOT
PARTICIPATING.

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