
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 97-1063                                   MICHAEL MCGRATH,                                Plaintiff - Appellant,                                          v.                            CONSOLIDATED RAIL CORPORATION,                                Defendant - Appellee.                                 ____________________          No. 97-1064                                   MICHAEL MCGRATH,                                Plaintiff - Appellee,                                          v.                            CONSOLIDATED RAIL CORPORATION,                                Defendant - Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                           Godbold,* Senior Circuit Judge,                                     ____________________                           and Barbadoro,** District Judge.                                            ______________                                _____________________                                        ____________________          *  Of the Eleventh Circuit, sitting by designation.          **  Of the District of New Hampshire, sitting by designation.               Alan D. Voos, with whom  Collins, Collins & Kantor, P.C. was               ____________             _______________________________          on brief for appellant Michael McGrath.               Leonard  F. Zandrow,  Jr.,  with whom  Michael B.  Flynn and               _________________________              _________________          Brister  & Zandrow, LLP  were on brief  for appellee Consolidated          _______________________          Rail Corporation.                                 ____________________                                  February 12, 1998                                 ____________________                                         -2-                    TORRUELLA, Chief Judge.   On June 13,  1995, plaintiff-                    TORRUELLA, Chief Judge.                               ___________          appellant Michael  McGrath ("McGrath") commenced this  action for          personal  injuries he  suffered  as  an  employee  of  defendant-          appellee  Consolidated  Rail  Corporation ("Conrail").    McGrath          alleges that Conrail was negligent in failing to provide him with          a safe work  place pursuant to  the Federal Employers'  Liability          Act ("FELA"), 45  U.S.C.   51 et  seq., and was liable  under the                                        ________          Federal Boiler  Inspection Act ("Boiler  Act"), 45 U.S.C.    23,1          for requiring  him  to  work with  a  locomotive that  was  in  a          defective  condition.   After a  jury trial,  the district  court          entered judgment in  favor of Conrail on both  the negligence and          Boiler Act claims.                    McGrath  appeals on  three  grounds.   Appellant argues          that  the  trial  court  erred  (1)  in  allowing  into  evidence          McGrath's  receipt   of  collateral   source  benefits;  (2)   in          submitting  to  the  jury  the  legal  question  of  whether  the          locomotive in  question was "in  use" for purposes of  the Boiler          Act; and (3)  in instructing  the jury on  the Boiler Act  claim.          Conrail  cross-appeals on  the issue  of whether  the Boiler  Act          applies to  the  facts  of  this  case.   We  find  no  abuse  of          discretion with  respect to  the admission  of collateral  source          evidence.   However, the district court erroneously submitted the          "in use" question to the jury.   As a matter of law, we find that                                        ____________________          1  Although the Boiler Act was recodified on July 5, 1994, see 49                                                                     ___          U.S.C.   20701, we will refer to    23 because that provision was          in effect  at the  time of  McGrath's injury.    In addition,  in          charging the jury, the district court applied   23.                                          -3-          the  Boiler Act  applies to  the instant  case.   Accordingly, we          affirm the jury verdict for the employer on  McGrath's negligence          theory,  but vacate  and remand  the verdict  for Conrail  on his          Boiler Act claim.                                    I.  BACKGROUND                                    I.  BACKGROUND                    On appeal, we  summarize the  facts in  the light  most          favorable  to the verdict-winner, consistent with record support.          See Wainright  Bank & Trust  Co. v. Boulos,  89 F.3d 17,  19 (1st          ___ ____________________________    ______          Cir.  1996).   McGrath  was  a  Conrail  engineer employed  as  a          "shifter,"  or an  engineer  for short  runs,  who usually  moved          trains between  local depots.   He was  responsible not  only for          operating the train,  but also for  attaching individual cars  to          the  locomotive.   On  March 21,  1994, he  reported  to work  at          Conrail's  Beacon Park office in Allston, Massachusetts.  McGrath          was the engineer on a job identified by Conrail symbol "WABP-11."          The  crew that worked WABP-11 consisted of an engineer (McGrath),          a conductor, and  a brakeman.  The train  used to perform WABP-11          was made up of at least one locomotive and several railroad cars.          On March 21, 1994, the WABP-11 was scheduled to service Conrail's          industrial customers in South Boston.                    McGrath was assigned  to locomotive number  2013, which          was  coupled  back-to-back  with  another  locomotive.    McGrath          approached both locomotives, which had their engines running, and          boarded  the  second  locomotive to  cross  over  into locomotive          number  2013.  As  soon as he  entered the cabin  of number 2013,          McGrath started to walk toward the daily inspection card.  In the                                         -4-          cabin,  McGrath lost  his balance  when he  stepped on  an acorn-          shaped nut.   He prevented  himself from falling by  grabbing the          four-foot  high  engineer's  control  stand.    Consequently,  he          suffered  injuries  to his  shoulder,  neck  and  back.   One  of          Conrail's defenses  at trial  was that  McGrath was  malingering,          i.e., feigning physical disability to avoid  work and to continue          receiving disability  payments.   For purposes  of rendering  its          verdict, the jury  assumed that the accident  described above did          occur.                                   II.  DISCUSSION                                   II.  DISCUSSION                    A.  Collateral Source Evidence                    A.  Collateral Source Evidence                    McGrath  argues  that  the   district  court  committed          reversible error by allowing into evidence his collateral sources          of  income,  including  disability  pension  payments  under  the          Railroad  Retirement  Act  and   supplemental  credit  disability          insurance  payments  on  his automobile.    Under  the collateral          source rule,  the plaintiff need  not offset his or  her recovery          from the defendant by  the amount of any benefits received from a          source collateral  to the defendant.   See Lussier v.  Runyon, 50                                                 ___ _______     ______          F.3d 1103, 1107 (1st  Cir. 1995).  The rule  mitigates the danger          of the jury finding no liability or reducing a damage award "when          it   learns  that  plaintiff's  loss  is  entirely  or  partially          covered."  Moses v. Union Pac.  R.R., 64 F.3d 413, 416 (8th  Cir.                     _____    ________________          1995); see also Tipton v. Socony Mobil  Oil Co., 375 U.S. 34, 36-                 ________ ______    _____________________          37 (1963) (per curiam).  However,  the rule  is not  absolute and          courts  have carved  out  exceptions  to  the  collateral  source                                         -5-          doctrine.  See Moses, 64  F.3d at 416 (allowing collateral source                     ___ _____          evidence where the plaintiff's case itself has made the existence          of such evidence  of probative value); Santa Mar a v. Metro-North                                                 ___________    ___________          Commuter  R.R.,  81  F.3d  265,  273  (2d   Cir.  1996)  (holding          ______________          collateral source evidence admissible if plaintiff puts financial          status at  issue); Simmons  v. Hoegh Lines,  784 F.2d  1234, 1236                             _______     ___________          (5th  Cir. 1986)  (finding collateral source  evidence admissible          for  limited  purpose   of  proving  another  matter   if  little          likelihood of prejudice and no strong potential for improper use,          and a careful  qualifying jury instruction is given).   We review          the trial  court's admission  of collateral  source evidence  for          abuse of  discretion.  See  Blinzler v. Marriott Int'l,  Inc., 81                                 ___  ________    _____________________          F.3d 1148, 1158 (1st Cir. 1996).                    According to McGrath,  the Supreme Court's  decision in          Eichel v.  New York  Cent. R.R.  Co., 375  U.S.  253 (1963)  (per          ______     _________________________          curiam), applies to his FELA action and mandates the exclusion of          collateral source evidence  in such cases.  In  Eichel, the Court                                                          ______          held  that evidence  of disability  payments  under the  Railroad          Retirement  Act  was  inadmissible  due  to  the  fact  that  the          likelihood of misuse by the  jury clearly outweighed the value of          such evidence.  See id. at 317.  In particular, the Supreme Court                          ___ __          noted  that "[i]nsofar  as the  evidence  bears on  the issue  of          malingering, there will  generally be other evidence  having more          probative value and  involving less likelihood of  prejudice than          the receipt of a disability pension."  Id.                                                 __                    We do not read Eichel as requiring the per se exclusion                                   ______                                         -6-          of collateral  source evidence  in FELA  cases.  As  we noted  in          DeMedeiros v.  Koehring Co.,  709 F.2d 734  (1st Cir.  1983), the          __________     ____________          narrower question in Eichel was  simply "whether or not to uphold                               ______          the  district court's discretionary  ruling."   709 F.2d  at 741.          Indeed, although  the Supreme Court  decided Eichel prior  to the                                                       ______          enactment of the current Federal Rules  of Evidence, the analysis          in  the Eichel decision  "does not appear  inconsistent with Rule                  ______          403."  Savoie v. Otto Candies,  Inc., 692 F.2d 363, 371 n.8  (5th                 ______    ___________________          Cir.  1982).   Rule  403  "confer[s]  broad discretion  upon  the          district  court  to  weigh  unfair  prejudice  against  probative          value."  709 F.2d at 741.                    In the instant  case, we find that the  trial judge did          not  abuse his discretion  in allowing the  receipt of collateral          source benefits into evidence under a Rule 403 balancing.  As its          motion in limine to admit the  collateral source evidence argues,          Conrail  offered the evidence of McGrath's disability payments on          the  issue  of  McGrath's  credibility.    Specifically,  Conrail          presented  collateral source evidence  to show McGrath's  lack of          motivation  for  returning  to  work.   In  allowing  Conrail  to          question McGrath  about collateral source  evidence, the district          court,  on several  occasions, issued cautionary  instructions to          the jury, advising it to consider the evidence only  on the issue          of malingering.   In one instance where McGrath's  tax return was          admitted  into evidence, the  court specifically noted  that "any          references in there to [collateral]  sources of income are not to          reduce any  compensation he may  receive here or to  increase it,                                         -7-          but only on the issue of his motivation  to go back to work . . .          ."                    In oral  argument, McGrath's attorney argued  that such          instructions did not cure the defect because Eichel precludes the                                                       ______          use  of such  evidence  on  the  precise  issue  of  malingering.          However, we  do not believe  that the Eichel court  established a                                                ______          bright-line rule  barring  the  admission  of  collateral  source          evidence on the  issue of malingering.  The  Supreme Court simply          determined  that the district court abused its discretion because          the prejudicial impact  of the evidence outweighed  its probative          value.  Here, we come to  the opposite conclusion.  "If there  is          little  likelihood of  prejudice  and  no  strong  potential  for          improper use, and a careful qualifying jury instruction is given,          then receipt of compensation  benefits may be admissible for  the          limited purpose of  proving another  matter."   Simmons v.  Hoegh                                                          _______     _____          Lines, 784 F.2d 1234, 1236 (5th Cir.  1986); see also Phillips v.          _____                                        ________ ________          Western Co. of  N. Am., 953  F.2d 923, 930 (5th  Cir. 1992).   We          ______________________          find that the district court properly allowed testimony regarding          collateral source income,  and thus, we need  not reach Conrail's          argument that McGrath failed to preserve the issue on appeal.                    McGrath  also  objects to  several  questions at  trial          about the value of a home he  and his wife were planning to build          on a lot in Florida.  McGrath interjected a timely objection to a          specific question about the  home's value and the  district court          sustained it before  the witness, McGrath's wife,  could respond.          After  the  objection  was sustained,  Conrail  asked  no further                                         -8-          questions about the lot or  the home.  Under these circumstances,          we see no reversible error.                    B.  Applicability of Boiler Act                    B.  Applicability of Boiler Act                    Conrail  cross-appeals  the   district  court's  orders          denying its motion and renewed motion for judgment as a matter of          law.  Conrail  argues that, as  a matter of  law, the Boiler  Act          does  not apply to McGrath's circumstances because the locomotive          in question was not "in use" for purposes of the Act.  The Boiler          Act provides in pertinent part:                    It shall be  unlawful for any carrier  to use                                                           ______                    or   permit  to  be  used  on  its  line  any                    ________________________________________                    locomotive   unless   said   locomotive,  its                    boiler,   tender,    and   all    parts   and                    appurtenances,   thereof   are    in   proper                    condition and safe to  operate in the service                    to which the same are put, that  the same may                    be  employed in  the active  service of  such                    carrier without unnecessary peril to life  or                    limb, and unless said locomotive, its boiler,                    tender  and   all  parts   and  appurtenances                    thereof have been inspected . . . .          45 U.S.C.    23 (emphasis  added).  Whether  a locomotive  is "in          use" under the  Act is "a question of law for  the trial court to          decide  and not  a question of  fact for  the jury."   Pinkham v.                                                                 _______          Maine  Cent.  R.R.  Co.,  874  F.2d 875,  881  (1st  Cir.  1989).          _______________________          Absolute liability under the Act  arise only if the locomotive in          question is "in  use."  See Crockett v. Long Island R.R., 65 F.3d                                  ___ ________    ________________          274, 277 (2d  Cir. 1995).   We review de  novo questions of  law.                                                __  ____          See UNUM  Corp. v.  United States,  130 F.3d  501, 502 (1st  Cir.          ___ ___________     _____________          1997).                    "Congressional intent and the  case law construing  the          statute clearly  excludes those injuries directly  resulting from                                         -9-          the  inspection,  repair  and  servicing  of  railroad  equipment          located at  a maintenance facility."   Angell  v. Chesapeake  and                                                 ______     _______________          Ohio Ry. Co., 618  F.2d 260, 262 (4th Cir. 1980).   In addressing          ____________          the "in use"  question, this court in Pinkham  observed that "the                                                _______          determinative factors are the  location of the locomotive at  the          time of the injury and the activity of the injured party . . . ."          874 F.2d  at 882.  A locomotive may  still be considered "in use"          although  it is motionless.   See Crockett,  65 F.3d  at 277; see                                        ___ ________                    ___          also Brady v. Terminal  R.R. Ass'n of St. Louis, 303  U.S. 10, 13          ____ _____    _________________________________          (1938).                    The facts  of this  case do not  lend themselves  to an          easy answer.   Locomotive  2013 was neither  being serviced  in a          place of repair, nor operating  on Conrail's main line.  Instead,          the  locomotive was  idling on  a  yard track,  which is  located          within the confines of a railroad yard.   Yard tracks are used to          store,  inspect, classify  and  switch  locomotives and  railroad          cars.  In addition, although McGrath was part of a transportation          crew, he was  also required, as the engineer,  to perform certain          inspection duties before moving the locomotive.                    However, we agree with the district court's  resolution          of this issue  in its order  denying Conrail's pre-trial  summary          judgment motion.  The locomotive in question was not being stored          on  the yard  track or awaiting  removal to the  engine house for          repairs.  Rather, "locomotive number 2013 was running on the yard          track and ready  to move into service."   McGrath v. Consolidated                                                    _______    ____________          Rail Corp., 943 F. Supp. 95, 97 (D. Mass. 1996).  Furthermore, as          __________                                         -10-          the  district  court  noted,  McGrath's  inspection  duties  were          "'incidental  to  [the]  task  of  operating  the  train   as  an          engineer.'"  Id.  citing Rivera v.  Union Pac. R.R.  Co., 868  F.                       __   ______ ______     ____________________          Supp. 294,  301 (D.  Colo. 1994).   We hold  that the  Boiler Act          applies to  the instant  case.  Accordingly,  we need  to address          McGrath's grounds for dismissal relating to the Boiler Act.                                         -11-                    C.  The Jury Instructions                    C.  The Jury Instructions                    McGrath  argues  that  the   district  court  erred  in          submitting to the jury the  legal question whether the Boiler Act          applies  to  the instant  case.    We  review the  trial  court's          instructions to  the jury  for abuse of  discretion.   See United                                                                 ___ ______          States  v. Shadduck,  112 F.3d  523,  526 (1st  Cir. 1997).   The          ______     ________          district court submitted the following instructions, in pertinent          part, to the jury:                         Mr. McGrath claims  that the Boiler  Act                    was violated and that as a consequence of the                    violation that was at least one of the causes                    of  injury  to  him  for  which  he  suffered                    damage.    So  the first  thing  you  want to                    consider under the Boiler Act is the question                    of  whether the  Boiler Act  applies to  him.                    The  congressional  intent and  the case  law                    _____________________________________________                    construing the  Boiler Act excludes  from its                    _____________________________________________                    coverage  those  injuries  directly resulting                    _____________________________________________                    from the  inspection, repair or  servicing of                    _____________________________________________                    railroad equipment  located at  a maintenance                    _____________________________________________                    facility.  These  injuries are excluded  from                    _________                    the Boiler  Act  because they  occur  in  the                    course of functions necessary to discover and                    correct the  unsafe conditions  prohibited by                    the Boiler Act.                         So the  first question under  the Boiler                    Act is, is Mr. McGrath, and he's got to prove                    it by a  fair preponderance of the  evidence,                    is he excluded under what I've just told you,                    or  is he  included,  is he  able to  recover                    under the Boiler Act?          Transcript at 627-28 (emphasis added).  We reiterate that whether          a locomotive  is "in  use" is "a  question of  law for  the trial          court  to decide  and  not  a question  of  fact for  the  jury."          Pinkham, 874  F.2d at 881.   However, the instructions  above ask          _______          the jury to decide this legal issue.                    In instructing  the  jury, the  district court  repeats                                         -12-          almost  verbatim the  legal  considerations  the  Fourth  Circuit          employed  in Angell.  Compare jury instructions above (emphasized                       ______   _______          language)  with 618 F.2d at  262 ("[c]ongressional intent and the                     ____          case law construing  the statute clearly excludes  those injuries          directly resulting from  the inspection, repair and  servicing of          railroad equipment located at a maintenance facility").  However,          in  Angell,  the court  itself  resolved  the  issue rather  than              ______          remanding  it for consideration  by a jury.   That was the proper          course.                    In  the instant  case,  the  jury  rendered  a  general          verdict for Conrail on McGrath's  Boiler Act theory.  In reaching          its  verdict, the  jury may  have  decided that,  as a  threshold          matter, the  Boiler Act did not  apply to the facts  of McGrath's          case.  In that  instance, it did not  need to reach the issue  of          Conrail's liability under the  Act.  Alternatively, the  jury may          have determined that the Boiler Act did apply but Conrail was not          liable under the  Act.  From the general  verdict, we cannot tell          whether the jury's verdict was based on an improper determination          of the "in use" question.  The record does reflect that  the jury          did  consider this  threshold issue.   One  jury question  to the          judge was:   "Is there any case  law that extends the  Boiler Act          exclusion  regarding  inspection  and repair  to  inspections and          repair outside the maintenance yard?"  Under these circumstances,          we must vacate the verdict as to the Boiler Act claim and remand.          See Dillard  & Sons Constr., Inc. v.  Burnup & Sims Comtec, Inc.,          ___ _____________________________     __________________________          51 F.3d  910, 916  (10th Cir. 1995)  ("erroneous submission  of a                                         -13-          legal question to a jury compels reversal when the jury returns a          general  verdict, creating  uncertainty as  to  whether the  jury          relied upon an  improper resolution of the legal  issue").  Since          we  remand for new  trial on the  Boiler Act theory,  we need not          reach McGrath's last ground  for reversal, which argued that  the          district  court  erred  in instructing  the  jury  on Boiler  Act          liability.                                   III.  CONCLUSION                                   III.  CONCLUSION                    For the foregoing  reasons, we affirm the  jury verdict                                                   affirm                                                   ______          for appellee on  McGrath's negligence claim, but  with respect to          the jury verdict on the Boiler Act claim, we vacate and remand to                                                       vacate     remand                                                       ______     ______          the  district court  for  proceedings  in  accordance  with  this          opinion.                                         -14-
