                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 05a0189n.06
                           Filed: March 15, 2005

                                       No. 03-6331

                        UNITED STATES COURT OF APPEALS
                             FOR THE SIXTH CIRCUIT


DAVID L. ROGERS, Individually;
ANN MOSTOLLER, Trustee, of the
Bankruptcy Estate of David L. Rogers,

       Plaintiffs-Appellees,                          On Appeal from the United
                                                      States District Court for the Eastern
v.                                                    District of Tennessee

NORFOLK         SOUTHERN          RAILWAY
COMPANY,

       Defendant-Appellant.
                                            /

BEFORE:       RYAN and COOK, Circuit Judges; BELL, District Judge.*

       RYAN, Circuit Judge.        The defendant, Norfolk Southern Railway Company,

appeals from a final judgment entered upon a jury verdict in favor of the plaintiff, David L.

Rogers, following a trial on Rogers’s claims under the Federal Employers’ Liability Act

(FELA), 45 U.S.C. §§ 51-60, and the Federal Safety Appliance Act (FSAA), 49 U.S.C. §§

20301-20306. For the following reasons, we AFFIRM.

                                                I.

       On August 23, 2000, Rogers and two coworkers were collecting railcars for a

customer in Norfolk’s Calhoun rail yard in eastern Tennessee. Rogers spotted eleven

railcars he needed on the west end of a “cut” of approximately thirty railcars. According to

       *
      The Honorable Robert Holmes Bell, Chief United States District Judge for the
Western District of Michigan, sitting by designation.
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Rogers, the railcars all appeared to be coupled to one another. Rogers instructed his

engineer to back his engine towards the west end of the cut in order to couple with the

eleven needed railcars. Before disengaging the eleven railcars, Rogers noted that the

hand brake chains on the twelfth and fourteenth railcars appeared to be taught, indicating

to him that the hand brakes had been fully applied by a previous crew. Confident that the

remaining railcars were secure, Rogers uncoupled the eleventh railcar from the twelfth

railcar and instructed his engineer to pull the line of eleven needed railcars off the holding

track. After several minutes, Rogers noticed that some of the railcars they left behind were

rolling and sliding toward them. He turned to run toward the moving railcars, intending to

mount them and engage additional hand brakes to avoid a crash. In doing so, he slipped

on some rocks and badly injured his knee. The railcars continued to roll and slammed into

the line of railcars his crew had just removed.

       On January 18, 2002, Rogers filed a complaint against Norfolk, seeking damages

under FSAA and FELA for the injury to his knee. Rogers alleged that Norfolk was strictly

liable for his injuries under FSAA because the railcars that rolled away were not equipped

with “efficient hand brakes,” 49 U.S.C. § 20302(a)(1)(B), and “couplers [that coupled]

automatically by impact,” 49 U.S.C. § 20302(a)(1)(A). Rogers also alleged that Norfolk was

liable under FELA because he had suffered an “injury . . . resulting in whole or in part from

the negligence of” his former employer. 45 U.S.C. § 51. After a four-day trial, the jury

returned a verdict in favor of Rogers, finding that: (1) Norfolk’s violation of FSAA caused

damage to Rogers; (2) Norfolk’s negligence under FELA caused damage to Rogers; (3)

Rogers was not negligent; and (4) Rogers had proven damages totaling $2,305,165.
(No. 03-6331)                                -3-

Norfolk subsequently filed motions for judgment as a matter of law and for a new trial, both

of which were denied by the district court. Norfolk then filed a timely notice of appeal.

                                              II.

                                              A.

       Norfolk first contends that FSAA is inapplicable to this case because the railcars that

rolled away were not “in use.” It has long been established that the provisions of FSAA

only apply to trains and railcars that are actually “in use.” Brady v. Terminal R.R. Ass’n,

303 U.S. 10, 13 (1938). We need not decide whether Norfolk is strictly liable under FSAA

because, even assuming FSAA is inapplicable here, the jury’s determination of fault based

on Norfolk’s negligence, which Norfolk does not appeal, is itself sufficient to affirm the

district court’s judgment.

       The jury found that: (1) Norfolk was negligent under FELA and that such negligence

was a legal cause, in whole or in part, of the damage to Rogers; and that (2) Norfolk

violated the provisions of FSAA and that the violation was a legal cause, in whole or in part,

of the damage to Rogers. In its memorandum denying Norfolk’s post-judgment motion for

a new trial and for judgment as a matter of law, the district court explained that there was

sufficient evidence from which the jury could find that Norfolk was negligent vis-à-vis its

employees’ failure to exercise reasonable care, either by its failure to test the security of

the couplers by “stretching” the segment of railcars that rolled away, or by its failure to

apply fully the hand brakes in order to prevent the railcars from moving. In other words, the

jury’s finding of negligence was not based upon a determination that the hand brakes were

inefficient or that the couplers failed to couple automatically by impact in violation of FSAA.

Rather, it rested upon a finding of the railroad-employer’s simple negligence. Accordingly,
(No. 03-6331)                                -4-

because Norfolk does not appeal the jury’s finding of negligence, which independently

supports the jury’s determination of liability, we need not decide whether Norfolk is also

liable under FSAA.

                                              B.

       Norfolk also argues that the district court abused its discretion in admitting the

testimony of David Engle as expert opinion. Engle testified that, in his opinion, Norfolk had

violated FSAA because: (1) the hand brakes on the railcars that rolled away were

“inefficient”; and (2) the couplers on the railcars that rolled away failed to couple

automatically by impact. Contrary to Norfolk’s assertion in its response to Rogers’s Rule

28(j) letter, neither Engle’s Rule 26 report, nor his testimony at trial, reveal that he offered

any opinion as to whether Norfolk had been negligent. Thus, even assuming it was

improper to admit Engle’s testimony as expert opinion, the error would not require reversal

because his opinion had no impact on the jury’s unchallenged finding of negligence.

                                              C.

       Norfolk next contends that the district court erroneously instructed the jury that “loss

of enjoyment of life” and “pain and suffering” were separate elements of Rogers’s claim for

damages. Norfolk, however, did not object to the district court’s jury instructions on this

basis. “‘The law in this circuit generally requires a formal objection, which should in most

circumstances be made both before and after the jury instructions are read to the jury.’”

Preferred RX, Inc. v. Am. Prescription Plan, Inc., 46 F.3d 535, 547 (6th Cir. 1995) (citation

omitted). Counsel’s failure to make an objection at trial “results in a waiver of the objection

advanced on appeal, and the jury verdict can be reversed only for plain error.” Id. at 548.

Plain error exists “where the error was obvious and prejudicial and require[s] action by the
(No. 03-6331)                                -5-

reviewing court in the interests of justice.” Ivey v. Wilson, 832 F.2d 950, 955 (6th Cir. 1987)

(internal quotation marks and citations omitted).

       We note that there is some authority outside this circuit indicating that “loss of

enjoyment of life” and “pain and suffering” should not be treated as separate elements of

damages in FELA cases. See, e.g., Dugas v. Kansas City S. Ry. Lines, 473 F.2d 821, 826-

27 (5th Cir. 1973). The courts consistently uphold such instructions, however, in cases

brought under the Jones Act, 46 U.S.C. § 688, which is construed in pari materia with

FELA, when there was no objection made at trial. See, e.g., Earl v. Bouchard Transp. Co.,

917 F.2d 1320, 1325-26 (2d Cir. 1990); Wood v. Diamond M. Drilling Co., 691 F.2d 1165,

1169 (5th Cir. 1982). In this case, the district court’s unchallenged instructions to the jury

distinguished between “loss of enjoyment of life” and “pain and suffering” in a way that

tended to preclude any duplication of damages awarded by the jury. We are satisfied that

the district court did not commit plain error in giving the instructions.

                                              D.

       Finally, Norfolk argues the district court abused its discretion by failing to order a

new trial based on the excessiveness of the jury verdict. The jury awarded damages to

Rogers totaling $2,305,165: $1,159,808 for future lost earning capacity, $145,357 for past

lost earning capacity, $500,000 for loss of enjoyment of life, and $500,000 for pain and

suffering. A jury award alleged to be excessive will be affirmed unless it is “(1) beyond the

range supportable by proof or (2) so excessive as to shock the conscience, . . . or (3) the

result of a mistake.” Leila Hosp. & Health Ctr. v. Xonics Med. Sys., Inc., 948 F.2d 271, 278

(6th Cir. 1991).
(No. 03-6331)                               -6-

       At trial, Rogers offered the expert testimony of an economist, Dr. Francis Rushing,

who presented an economic analysis of the salary and benefits Rogers would have

received over the expected course of his work life had he not injured his knee. The jury

apparently relied heavily on Dr. Rushing’s testimony, since its award for future lost earning

capacity was identical to the estimate given by Dr. Rushing, a figure based on Rogers’s

pre-injury work life expectancy of 28 years. Dr. Rushing’s estimate did not account for any

future income Rogers might earn to offset his financial loss, even though Dr. Rushing

testified that Rogers still possessed 10.7 years of work life expectancy despite his knee

injury. In light of this testimony, Rogers’s attorney conceded during closing argument that

the jury should reduce Rogers’s work life expectancy by 10.7 years and award Rogers only

61 percent of $1,159,808, the estimated amount of future lost earning capacity given by Dr.

Rushing.

       Although the jury apparently ignored counsel’s request and awarded the full amount

to Rogers, the award is not necessarily unsupported by the evidence or the result of a

mistake. Rogers testified that as a result of his injury, he has been unable to secure

employment and has been rejected by over 70 different employers, including Norfolk. In

Grunenthal v. Long Island Railway Co., the defendant railroad company, like Norfolk, was

sued by a former railroad employee for damages under FELA. 393 U.S. 156 (1968). The

railroad argued that the jury’s award for loss of future earnings was excessive. The

Supreme Court disagreed:

       Although petitioner’s medical witness testified that the condition of his foot
       would not prevent petitioner from engaging in “sedentary work,” petitioner’s
       unchallenged evidence of his unsuccessful efforts to obtain and keep jobs of
       that kind might reasonably have led the jury to decide that petitioner’s
       chances of obtaining or holding any employment were most doubtful.
(No. 03-6331)                               -7-

       Petitioner testified that his applications for work had often been turned
       down[.]”

Id. at 161. Similarly, the jury here could have reasonably concluded that Rogers’s award

for loss of future earnings should not be reduced in light of his unsuccessful attempts to

obtain employment.

       Regarding the award for “loss of enjoyment of life” and “pain and suffering,” Rogers

offered testimony that he had undergone two knee operations, was in constant need of pain

medication, and was facing a possible knee replacement surgery. He also testified that he

suffers constant pain on a daily basis, is unable to provide for his children or perform many

of the ordinary activities of parenthood, and is unable to sleep well. We cannot conclude

that Rogers’s noneconomic damages exceed the range supported by the evidence.

       We have carefully reviewed the record and find no reason to upset the jury’s award

of damages. Accordingly, the district court did not abuse its discretion in denying Norfolk’s

motion for a new trial based on the alleged excessiveness of the jury verdict.

                                             III.

       For the foregoing reasons, the judgment of the district court is AFFIRMED.
