
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________          No. 96-1134                                  DAVID D. STEVENS,                                 Plaintiff, Appellee,                                          v.                        BANGOR AND AROOSTOOK RAILROAD COMPANY,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                   [Hon. Eugene W. Beaulieu, U.S. Magistrate Judge]                                             _____________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                            Cyr and Lynch, Circuit Judges.                                           ______________                                 ____________________               Jeffrey T. Edwards, with whom Elizabeth J. Wyman and  Preti,               __________________            __________________      ______          Flaherty, Beliveau  & Pachios, Portland,  ME, were on  brief, for          _____________________________          appellant.               Robert M. Byrne,  Jr., with  whom Thornton  Early &  Naumes,               _____________________             _________________________          Boston,  MA, and Craig J. Rancourt, Biddeford, ME, were on brief,                           _________________          for appellee.                                 ____________________                                   October 9, 1996                                 ____________________                      LYNCH,  Circuit  Judge.   David Stevens,  a railway                      LYNCH,  Circuit  Judge.                              ______________            trackman  with  sixteen years  of  service  at  the Bangor  &            Aroostook Railroad  Company, suffered back  injuries from  an            accident  on the  job.   The jury  in his  Federal Employers'            Liability  Act action  awarded him  $450,000.1   The Railroad            appeals from the verdict  and the denial of its motion  for a            new trial, saying the  evidence showed neither negligence nor            foreseeability and that  certain evidentiary rulings were  in            error.                      The  Railroad  raises two  issues  of  weight.   It            argues  it  was  unfairly  prejudiced  by  the  exclusion  of            evidence of a  cardiac event suffered by  plaintiff two weeks            before  trial.    It also  argues  that  the  court erred  in            instructing the  jury that,  while defendant  was responsible            only  for the  aggravation of  a pre-existing  condition, the            jury must find  for plaintiff  if it could  not separate  the            injury  caused  by  the  condition from  that  caused  by the            accident.  These health-related  issues require us to address            questions  not  resolved  before now  in  this  Circuit.   We            affirm, though with some  sympathy for the tribulations faced            by trial counsel.                                          I.                                            ____________________            1.  The  jury  found  the  Railroad responsible  for  90%  of            Stevens' injuries; Stevens responsible for 10%.                                         -2-                                          2                      The jury could  reasonably have believed the  facts            to be as follows:                      On a winter morning in northern Maine, February 19,            1994, there was  a train derailment  on the main line  to the            Millinocket Yard  of the  Railroad.   The derailment  tore up            some  tracks,  which  had  to  be  repaired  promptly.    The            Millinocket Yard is  an important junction point, and the oil            tank  cars that fuel the local industry travel along its main            line.                      David  Stevens,  a trackman  and  machine operator,            arrived  at the  yard around  7 a.m.  at the  request of  his            foreman.  Stevens' job involved  heavy manual labor, and that            morning he helped repair  the consequences of the derailment.            After  clearing away torn rail and scrap metal, Stevens and a            co-worker,  David Ireland, were asked to  get lengths of rail            to repair the damaged track.                      The  rail was kept  in the X-198  railcar, known as            the  "wreck  car."   Different  weights  of thirty-nine  foot            lengths  of rail were piled in the  car,2 some lying on their            sides,  some on  their bases.   The  rails were  in disarray,            piled to a  height of about two to three  feet above the base            of  the car.    Their  surface  was  uneven  and  there  were                                            ____________________            2.  The "weight" of a rail is the weight in pounds of a three            foot section.  This car had varying lengths of 100 pound, 112            pound,  and  115 pound  rail, each  of  which has  a somewhat            different shape and size.                                         -3-                                          3            irregular gaps between the  pieces of rail.  In  violation of            the Railroad's  own  safety rules,  the  wreck car  had  been            loaded  using  inappropriate  equipment  and  had  not   been            blocked, thus leading to the gaps between the rails.                      Stevens' task  was to climb  onto the rails  in the            wreck  car and  position  the rails  so  that his  co-worker,            Ireland, operating a machine called a pettibone, could secure            the rail with the pettibone's tongs.   Stevens first shoveled            snow and ice off the portion of the wreck car where he needed            to  work.  The two men then successfully offloaded six rails,            with Ireland operating the  pettibone in response to Stevens'            hand signals.  Then  Stevens, standing atop the rails  in the            wreck car, reached up for the tongs of the pettibone to guide            it down to the seventh rail.  He slipped and fell.  His right            leg, up  to his  groin, went  down a  gap in  the rails.   He            twisted  as he fell and felt a  sharp pain in his back.  With            difficulty and great pain,  he extricated himself.  Declining            co-workers' offers to take him to the hospital and wanting to            earn the $20 an hour overtime  pay, Stevens continued working            for eighteen more hours.                      When he  went home, the  pain continued, as  it did            when he returned  to work on February 25, 1994.   On February            28, unable  to continue working  due to the pain,  he went to            the hospital.  He was first diagnosed with lumbar strain, but            when  physical therapy  did  not improve  his condition,  his                                         -4-                                          4            orthopedic  surgeon  ordered  an  MRI,   which  showed  early            degenerative disk  disease and  some narrowing of  the disks.            He  has  since been  in  physical  and occupational  therapy,            unable  to return to his  job because his  back pain disables            him from physical labor.   Jobs in his area of Maine  are few            and far between, particularly once employment requiring heavy            manual  labor is excluded.   Stevens, who is  married and has            children, works sporadically as  an animal control officer at            about  $75 a  week and  earns small  sums as  the owner  of a            delivery truck.                      Before Stevens' accident, the Railroad had at times            loaded  the rails  onto transport  cars in  a regular  tiered            fashion.   The Railroad had decided even  before the accident            to switch to  this system for the wreck car  because it would            be more  efficient.  It would also  be safer because it would            be easier for the pettibone operator to grab the rails and so            reduce the need  for a trackman  to climb  onto the rails  to            guide the pettibone's tongs.                                         II.            Sufficiency of the Evidence and New Trial Motion            ________________________________________________                      The Federal Employers' Liability Act was enacted in            1908 to provide  railroad workers with  a federal remedy  for            personal injuries suffered  as a result of  the negligence of            their employers  or fellow workers.   Consolidated Rail Corp.                                                  _______________________            v.  Gottshall,  114 S.  Ct.  2396,  2404  (1994);  Robert  v.                _________                                      ______                                         -5-                                          5            Consolidated  Rail  Corp., 832  F.2d 3,  5-6 (1st  Cir. 1987)            _________________________            (citing Atchison T. & S.F.  R.R. v. Buell, 480 U.S.  557, 561                    ________________________    _____            (1987)).    FELA is  a broad  remedial  statute and  has been            liberally construed to effectuate the congressional intent of            protecting  railroad  employees.    Id.  (citing  Sinkler  v.                                                ___           _______            Missouri  Pac. R.R., 356 U.S. 326, 330 (1958)).  The standard            ___________________            for liability under  FELA is low,  although the statute  does            not impose absolute liability on employers.   Moody v. Boston                                                          _____    ______            & Maine Corp., 921 F.2d 1, 3 (1st Cir. 1990).            _____________                      A FELA plaintiff must prove the traditional  common            law  elements  of   negligence  --  duty,   breach,  damages,            causation,  and  foreseeability.    Robert, 832  F.2d  at  6.                                                ______            Specifically,  he must  show that  his employer  breached its            duty to maintain a safe workplace, that he was harmed by that            breach, and  that the harm  was foreseeable.   The employer's            duty to  maintain  a  safe workplace  does  not  require  all            dangers to be eradicated, but it does  demand the elimination            of  those  that can  reasonably be  avoided  in light  of the            normal requirements of the job.   Conway v. Consolidated Rail                                              ______    _________________            Corp., 720 F.2d 221,  223 (1st Cir. 1983), cert.  denied, 466            _____                                      _____________            U.S. 937 (1984).   FELA provides that  railroad employers are            liable for injuries to their employees "resulting in whole or                                                                       __            in  part" from  the employer's  negligence.   45 U.S.C.    51            ________            (emphasis added);  see also Robert,  832 F.2d at  6 ("[U]nder                               ___ ____ ______                                         -6-                                          6            FELA  negligent  employers  cannot  escape  liability  merely            because other causes contribute to the injury.").                        Measured against these  standards, the evidence was            sufficient  to impose  liability.   The Railroad  argues that            there was no negligence  on its part causing Stevens  to slip            and no way for  it to foresee that Stevens would  be injured.                      Neither  the challenge  to the  sufficiency of  the            evidence  nor the  appeal from  the denial  of the  new trial            motion is well taken.                      Stevens was injured when he fell into a gap between            the rails created by their haphazard arrangement in the wreck            car.  The  disarray also  increased the number  of times  the            trackman had to climb atop the rails in the wreck car to help            the pettibone operator,  thus making it more  likely a worker            would fall  and slip into a gap  between the rails.  Although            Stevens had cleared away the ice and snow from the area where            he was working, it was certainly foreseeable  that, given the            uncertain footing  underneath, a trackman would fall.  It was            also  foreseeable that on falling,  he would slip  into a gap            and be injured  or suffer greater injuries than  he otherwise            would have.  Stevens  has proffered more than enough  to meet            his burden.            Subsequent Remedial Measures            ____________________________                      The Railroad claims that two items of evidence -- a            post-accident  photograph  of a  wreck  car  whose rails  are                                         -7-                                          7            arranged in a tiered fashion, and references to comments made            at  a company safety  meeting following the  accident -- were            admitted into  evidence in  violation of  Fed. R.  Evid. 407,            which  prohibits the introduction of a defendant's subsequent            remedial measures.                      We doubt that Rule 407 applies at  all here.  As to            the  photograph  showing a  car  with the  rails  arranged in            tiers,3  the  jury  was  told   only  that  it  depicted   an            arrangement of the  type Stevens  had seen on  other cars  on            which  he had worked before  his accident.   The jury was not            informed of the date of the  photograph and was not told that            it portrayed  a subsequent remedial measure.   The photograph            was properly  admitted to  show the Railroad's  past practice            and standard of care.                      The  jury also  did  not know  that the  challenged            references   to  statements  by   Mr.  Cote,  the  Railroad's            roadmaster, concerned statements made during  a post-accident            safety  meeting.   The references  to Cote's  statements were            supported by notes  taken by one  of the Railroad's  foremen,            Thomas  Bell.4   The  jury  never  saw  the  notes,  and  the                                            ____________________            3.  The photograph was a fair representation of rails aligned            in a row, same sides up, which Stevens had walked on in other            cars  prior to  the accident.   It  showed a  different, less            dangerous alignment  than the alignment  in the wreck  car on            which he was injured.            4.   The notes said  that, "Rails still coming in  from Derby            on supply  cars a mess rails every which way and Holes in the            floor of car . . . . RNC [Robert N. Cote] mentioned  [time of                                         -8-                                          8            references to Cote's statements were admitted for impeachment            purposes only.  Cote  had testified that he had  never stated            the rails  on the wreck car  were in disarray at  the time of            the plaintiff's accident and that he remembered the rails  as            having been arranged  neatly.  His later  statement about the            condition of the rails  at the time of the accident  could be            understood to be to the contrary and was thus fair game.                      Thus, because the evidence was not presented to the            jury   directly  or  by   inference  as  subsequent  remedial            measures, Rule 407 does not apply.  Even if Rule 407 applied,            the exception within the rule would also apply:                      This rule does  not require the exclusion                      of evidence of  subsequent measures  when                      offered  for  another  purpose,  such  as                      proving     ownership,    control,     or                      feasibility of precautionary measures, if                      controverted, or impeachment.            This evidence fell  within the exception.  These  two rulings            fell well  within the  sound discretion  of the  trial judge.            See Blinzler v. Marriott Int'l, Inc., 81 F.3d 1148, 1158 (1st            ___ ________    ____________________            Cir. 1996); Roy v. Star Chopper Co., 584 F.2d 1124, 1134 (1st                        ___    ________________            Cir. 1978), cert. denied, 440 U.S. 916 (1979).                        ____________            Cardiac Event            _____________                      Two  weeks before trial  and two  and a  half weeks            after the  jury was  impanelled, Stevens was  hospitalized on            November 11, 1995.   Stevens was diagnosed with  a threatened                                            ____________________            Stevens' accident] as an example."                                         -9-                                          9            anterior septal myocardial  infarction5 and  was released  on            November 14, 1995.  The parties agreed that the cardiac event            was  not caused in any way by Stevens' accident or consequent            injuries.                      The Railroad  was  not permitted  to  cross-examine            Stevens  about his cardiac event or  to introduce the medical            records  into  evidence.    The  Railroad  argued  that  such            examination  was  pertinent   to  Stevens'   life  and   work            expectancy.    The  court  excluded all  evidence  about  the            cardiac event  because the Railroad failed  to proffer expert            testimony to link  it to life expectancy or  work expectancy.            Absent such testimony the court  felt that the evidence would            have  been speculative  and  unduly prejudicial.   The  trial            court  also  excluded  the  evidence in  part  based  on  its            understanding "that any independent event  that the defendant            is  not  responsible for  in  reference  to  his  health  and            condition could not be considered by [the  jury] for purposes            of awarding damages."                      This latter basis for  the trial court's ruling was            erroneous.   If post-accident health problems  have an impact            on  a plaintiff's ability to  work or on  his life expectancy            and  arise  independently  of  the   accident,  defendant  is            entitled  to adduce evidence of such problems in an effort to                                            ____________________            5.  An impending heart attack was averted by treatment at the            hospital.                                         -10-                                          10            reduce a potential  damages award.   In FELA cases  plaintiff            must  prove  pre-injury  and  post-injury  earning potential.            Quinones-Pacheco v.  American Airlines, 979 F.2d  1, 6-7 (1st            ________________     _________________            Cir. 1992).  As the Sixth Circuit held in a FELA case, Harris                                                                   ______            v. Illinois Cent. R.R., 58 F.3d 1140 (6th Cir. 1995):               ___________________                           If [plaintiff] had died in 1992 of a                      heart attack  unrelated  to his  fall  at                      work,  the  period for  which  his estate                      could  recover  lost earnings  would have                      been cut off at the point of  death.  See                                                            ___                      Dixon v. International Harvester Co., 754                      ____________________________________                      F.2d 573, 588-90 (5th Cir. 1985).  If his                      heart condition would  have rendered  him                      incapable   of   working  as   a  carman,                      similarly, we think it  would be error to                      allow testimony on his potential earnings                      as a carman beyond the point at which his                      work as a carman  would have had to cease                      even if he had  never injured his leg and                      back.            Id. at  1144-45; accord  Agosto v.  Trusswal Sys.  Corp., 142            ___              ______  ______     ____________________            F.R.D. 118,  120 (E.D. Pa.  1992); Smith v.  Southland Corp.,                                               _____     _______________            738 F. Supp. 923, 926 (E.D. Pa. 1990).                      That  does  not  mean  the  trial  judge  erred  in            excluding  the  evidence,   particularly  in  light   of  his            alternative grounds for  doing so.    A  decision to  exclude            evidence is reviewed  for abuse of discretion.   Blinzler, 81                                                             ________            F.3d at 1158.   Here, the Railroad  commendably concedes that            in the ordinary course,   evidence of unrelated post-accident            health problems without medical  testimony as to their effect            on  plaintiff's  life and  work  expectancy  would be  unduly            speculative.  See, e.g.,  Meller v. Heil Co., 745  F.2d 1297,                          _________   ______    ________                                         -11-                                          11            1303 (10th  Cir.) (excluding evidence of  the decedent's drug            use in  a wrongful death action in part due to the absence of            a  medical  foundation for  the  defendant's  claim that  the            decedent's life expectancy would  have been diminished by his            drug  use), cert. denied, 467 U.S. 1206 (1984).  The Railroad                        ____________            says  that  it  did not  have  enough  time  to develop  such            testimony,   that  the   court  denied   its  motion   for  a            continuance,6 and that the exclusion was therefore error.                      Although close,  we find no abuse  of discretion in            light of three factors.  First,  the timing, while difficult,            was far from  impossible.  The Railroad acknowledges  that it            received notification  of the plaintiff's myocardial event at            least  ten  days before  the  trial was  scheduled  to begin.            Nothing prevented the defendant from  starting to look for an            expert witness at that time.  The Railroad was promptly given            the  medical  records,  and  it  interviewed   the  attending            physician.  The  defendant did not begin  to put on its  case            until  December  4,  effectively  giving it  over  two  weeks            (albeit  subject  to  the Thanksgiving  holiday  weekend), to            locate an expert witness.                                            ____________________            6.  The Railroad's request for a continuance was based on its            representation  that  it  needed  to  investigate  the  issue            further.   The  court denied  the continuance  based on  that            representation  and directed plaintiff's  counsel to give the            defense all  the medical information  it had.   The  hospital            records were promptly provided.  No specific request was made            for a continuance in order to locate an expert witness.                                         -12-                                          12                      Second,  there is very little evidence establishing            prejudice to the Railroad.  There was no offer of proof as to            what  a potential  cardiologist expert  witness would  say to            link the cardiac event causally to the legal issues.   We are            left not  knowing whether  there is,  in fact,  any colorable            claim of linkage.   There is not even a  clear record of when            the  Railroad first  received  the hospital  records or  what            steps  it took in  response, although  at oral  argument both            counsel attempted to recreate the sequence from memory.                      Third,  during the  trial,  well after  it received            notice of the plaintiff's cardiac event, the Railroad entered            into a stipulation based  on mortality tables as to  the life            and work expectancy of  a typical man of plaintiff's  age who            was of average health.  The jury was instructed that it could            consider  the stipulation along with other  evidence.  In the            face of the  stipulation and the absence of even a proffer to            link  the   cardiac  event  to  plaintiff's   life  and  work            expectancy, it  was hardly  an abuse  of  discretion for  the            court to exclude the evidence.            Vocational Testimony            ____________________                      Similarly, we reject the challenge to the testimony            of  plaintiff's vocational  expert.   The  Railroad says  the            testimony lacked adequate factual basis and complains that it            was sandbagged when, on cross-examination, it learned for the            first  time that  the expert  had updated  her  research just                                         -13-                                          13            before  and  during the  trial  in violation  of  a pre-trial            scheduling   order  (and,  although   not  mentioned  by  the            defendant, of  Fed. R. Civ.  P. 26(e)(1)  as well).   A trial            court has wide discretion in determining the admissibility of            expert testimony, and we will  reverse its decision only when            there  has been a clear  abuse of discretion.   Allied Int'l,                                                            _____________            Inc. v. International Longshoreman's  Ass'n., 814 F.2d 32, 40            ____    ____________________________________            (1st Cir.), cert. denied, 484 U.S. 820 (1987).                        ____________                      The expert's vocational evaluation report was based            on her review  of the plaintiff's  medical records and  prior            work experience,  a meeting  with the plaintiff  during which            they discussed  his skills and  interests, and her  review of            jobs  available in the area.   The expert  testified that the            information she  relied upon was  the sort typically  used by            persons  in her  field.   The Railroad  made no  proffer that            vocational experts  rely  on different  types of  information            than  did plaintiff's expert.   We think  the foundation laid            was adequate.                      As  to the  expert's last  minute research  and the            lack  of notice to the  Railroad, this is  a trial management            issue within the  trial court's discretion.   The trial judge            recognized that the expert adhered to the same opinions which            had been timely disclosed  to the Railroad.  The  court quite            properly  offered  to  instruct   the  jury  that  it  should            disregard   any   information  the   expert   acquired  after                                         -14-                                          14            submitting her report.   The Railroad did not take  the trial            court up  on this offer and  did not ask  for additional time            before continuing  cross-examination.  There was  no abuse in            the  ruling that  the violation  of the  pre-trial scheduling            order did not warrant striking the expert's entire testimony.            Jury Instructions            _________________                      The Railroad's final claim  is that the trial court            improperly  instructed the jury  on the issue  of damages and            that this  was sufficiently prejudicial, based  on the record            as a  whole, to  warrant a  reversal  of the  judgment.   The            question,  one of first  impression for this  court, is which            side should prevail on this issue in a FELA action when there            is adequate  expert testimony  that an accident  aggravated a            pre-existing condition7 but the jury cannot separate the pain            or disability caused by  the pre-existing condition from that            resulting from  the accident.   We  believe that the  balance            tips in  favor  of compensating  the FELA  plaintiff, and  so            uphold the jury instructions.                      Ample evidence  was presented at trial that Stevens            suffered from degenerative disk disease prior to his February            1994 accident.   There  was also testimony  that degenerative                                            ____________________            7.  This   case  does   not  involve   the  problem   of  the            admissibility  of the  expert's  testimony if  the expert  is            unable to ascertain whether the trauma  of the accident would            exacerbate a prior condition of this particular patient.  Cf.                                                                      ___            Rotman v.  National R.R. Passenger Corp.,  No. 95-P-277, 1996            ______     _____________________________            W.L. 528878 (Mass. App. Ct. Sept. 18, 1996).                                         -15-                                          15            disk  disease  is  a  process  of aging.    However,  Stevens            presented  expert  testimony  that  the  accident  caused  an            aggravation  of his  pre-existing  condition.   His  treating            physician testified  that, while  "there must have  been some            degenerative disk disease present"  before the accident,  "it            was  silent[,] [s]o he did  not feel anything,"  and that the            accident caused him to feel the condition for the first time.            There  was  also   evidence,  however,  that  plaintiff   had            experienced back pain prior to the accident.                      The trial judge instructed the jury as follows:                           There is evidence in this  case that                      plaintiff  had  a pre-existing  injury or                      condition which existed prior to February                      19,  1994.  The  railroad is  only liable                      for damages you find  to be caused by the                      occurrence of February 19, 1994.  If  you                      find   that    plaintiff's   pre-existing                      condition  made  him more  susceptible to                      injury than a person in  good health, the                      defendant is responsible for all injuries                      suffered by the plaintiff as a  result of                      the defendant's negligence, even if those                      injuries are greater than would have been                      suffered by a person in good health under                      the same circumstances.                           If    you   find    that   defendant                      negligently  caused   further  injury  or                      aggravation  to plaintiff's  pre-existing                      condition,   plaintiff  is   entitled  to                      compensation   for  all   of  plaintiff's                      damages caused by the incident, including                      that  further injury or  aggravation.  If                      you   cannot   separate   the   pain   or                      disability  caused  by  the  pre-existing                      condition   from   that  caused   by  the                      occurrence of February 19, 1994, then the                      defendant   is   liable   for    all   of                      plaintiff's injuries.                                         -16-                                          16            The defendant takes issue  with the last sentence.   However,            the instructions correctly stated the law.                      It  is  true  that  as a  general  matter,  when  a            defendant's negligence aggravates a  plaintiff's pre-existing            health  condition,  the  defendant  is liable  only  for  the            additional increment caused by the negligence and not for the            pain and  impairment that  the plaintiff would  have suffered            even if the accident had never occurred.  See, e.g., Evans v.                                                      _________  _____            United  Arab Shipping  Co.,  790 F.  Supp.  516, 519  (D.N.J.            __________________________            1992), aff'd,  4 F.3d 207  (3d Cir. 1993);  cf. Shupe v.  New                   _____                                ___ _____     ___            York Cent. Sys., 339 F.2d 998, 1000 (7th Cir.), cert. denied,            _______________                                 ____________            381 U.S.  937 (1965).   Contrary to the  defendant's premise,            the  jury was so instructed here.  But that general statement            of law does not  provide a complete response to  the question            of which party prevails when the harm due to the pre-existing            condition is inseparable from the harm due to the accident.                      We  turn first to  the language of  the FELA, which            tends to  favor the plaintiff  but which is  not dispositive.            Section 1 of  FELA states:  "[Defendant] shall  be liable  in            damages  .  .  .  resulting in  whole  or  in  part  from the                                                   ____________            negligence  of [defendant,  its agents,  or employees]."   45            U.S.C.   51 (emphasis added).  This language suggests, as the            jury instruction  indicated,  that once  the  plaintiff  puts            forth credible  evidence of causation --  that the Railroad's            negligence has  aggravated a  pre-existing  condition --  the                                         -17-                                          17            defendant  will be liable for damages even if the jury cannot            separate the amount of  harm caused by the accident  from the            amount  of   harm  caused  by   the  pre-existing  condition.            However, the  statutory language  does  not provide  explicit            instructions  about the appropriate  apportionment of damages            when the causes of plaintiff's disability are inseparable.                      More  helpful is  a  consideration  of the  primary            statutory  purpose:  "to eliminate  a  number  of traditional            defenses  to tort  liability  and to  facilitate recovery  in            meritorious  cases."  Atchison T.  & S.F. R.R.  v. Buell, 480                                  ________________________     _____            U.S. 557,  561 (1987).  "Specifically,  the statute abolished            the   fellow   servant   rule,  rejected   the   doctrine  of            contributory  negligence  in  favor of  that  of  comparative            negligence,   and   prohibited   employers   from   exempting            themselves  from  FELA  through  contract; a  1939  amendment            abolished the assumption of risk defense."  Gottshall, 114 S.                                                        _________            Ct.  at  2404.    Allowing a  defendant  to  escape liability            because of  the jury's  inability to separate  the disability            due to  plaintiff's pre-existing  condition from that  due to            the  accident would  prevent  the  plaintiff from  recovering            damages  for  the  aggravation  in what  the  factfinder  has            determined to be a  meritorious case.  This would  defeat the            remedial purpose of the statute.8                                            ____________________            8.   Indeed, FELA and  other federal statutes incorporate the            "eggshell  skull" rule  to  prevent defendant  from  avoiding            liability  in certain cases.   See, e.g., Jordan v. Atchison,                                           _________  ______    _________                                         -18-                                          18                      When  the  statutory language  and purpose  are not            dispositive,  "[t]he third  resort  of puzzled  courts is  to            policy,  principally  the  policy  Congress  was  seeking  to            implement in adopting the statute."  Wilson v. Bradlees,  No.                                                 ______    ________            95-2293, 1996 WL  534913, at  *4 (1st Cir.  Sept. 25,  1996).            While  we are aware that  FELA interpretation is  a matter of            federal law,  the  Act  is founded  on  common  law  concepts            subject  to explicit statutory  qualifications.   Id.   It is                                                              ___            therefore appropriate to look to the Restatement of Torts for                                                 ____________________            guidance on the relevant policy issues, as indeed the Supreme            Court and  the courts of appeals have done in the past.  See,                                                                     ____            e.g.,  Gallick  v. Baltimore  & O.  R.R.,  372 U.S.  108, 120            ____   _______     _____________________            (1963); Buckley  v. Metro-North Commuter R.R.,  79 F.3d 1337,                    _______     _________________________            1346  (2d Cir. 1996); Lockard v. Missouri Pac. R.R., 894 F.2d                                  _______    __________________            299, 305 (8th Cir.), cert. denied, 498 U.S. 847 (1990).                                 ____________                      The  Restatement  provides some  assistance  in its                           ___________            discussion   of   apportionment   of   indivisible   damages,            explaining:                                            ____________________            T. &  S.F. Ry., 934  F.2d 225,  228-29 (9th Cir.  1991) (FELA            ______________            case noting that it  is a well-settled principle of  tort law            that  the defendant must take the plaintiff as it finds him);            cf.  Avitia v. Metropolitan  Club of  Chicago, 49  F.3d 1219,            ___  ______    ______________________________            1227-28  (7th Cir.  1995)  (same under  Fair Labor  Standards            Act); Doty v.  Sewall, 908  F.2d 1053, 1059  (1st Cir.  1990)                  ____     ______            (same  under Landrum-Griffin  Act).   And the  principle that            indivisible  harm  results  in  imposing  full  liability  on            defendants is  recognized in other  areas of  federal law  as            well.   See, e.g., Price v. United States Navy, 39 F.3d 1011,                    _________  _____    __________________            1018 (9th Cir. 1994) (CERCLA).                                         -19-                                          19                      Where  two  or  more  causes  combine  to                      produce such a  single result,  incapable                      of division on any logical  or reasonable                      basis .  . .  the courts have  refused to                      make an arbitrary apportionment . . . and                      each  of  the  causes  is   charged  with                      responsibility for the entire harm.            Restatement  (Second)  of Torts     433A(2)  cmt. i,  at  439            _______________________________            (1965).  Thus, a defendant gets the benefit  of apportionment            of  harm only if "there is a reasonable basis for determining            the contribution  of each  cause to  a single  harm."  Id.                                                                      ___            433A(1)(b), at 434.  If not, the defendant  is liable for the            whole.  According to   433A,  both the defendant's negligence            and the  plaintiff's pre-existing  condition  are deemed  the            cause of the  entire harm,  thus imposing the  burden of  the            whole on both.  But  this tie is broken by  the congressional            intent  to implement  a  policy  benefitting injured  railway            workers.9                      An   additional   policy  argument   that  supports            upholding  the   jury  instruction   may  be  found   in  the            Restatement's discussion  of the related question  of who has            ___________                                            ____________________            9.  The  illustrations  for   the  above  quoted  Restatement                                                              ___________            comments  are primarily taken  from cases  involving multiple            tortfeasors.  However, the Restatement indicates that "[s]uch                                       ___________            entire  liability is  imposed where  some of  the causes  are            innocent . . . ."  Id.   433A(2) cmt. i, at 439; cf. id. app.                               ___                           ___ ___            at 140 (1966) (noting that "as to an original injury followed            by negligent treatment,"  the treating  physician "is  liable            only for the aggravation  he has caused").  The  instant case            is closely analogous, and the parallel between aggravation of            a  pre-existing condition  and  the harm  caused by  multiple            tortfeasors has  been drawn  by several courts.   See,  e.g.,                                                              __________            Lovely v. Allstate Ins. Co., 658 A.2d 1091, 1092 (Me. 1995).            ______    _________________                                         -20-                                          20            the  burden  as  to apportionment  of  damages  when such  an            apportionment is possible:10                           The reason for the  exceptional rule                      placing   the  burden  of   proof  as  to                      apportionment   upon  the   defendant  or                      defendants is the injustice of allowing a                      proved   wrongdoer  .   .  .   to  escape                      liability . .  . .   In such  a case  the                      defendant  may  justly  be   required  to                      assume  the  burden  of   producing  that                      evidence, or if  he is not able to do so,                      of bearing the full responsibility.            Id.   433B(2)  cmt. d, at 444.11  The  comment concludes, "As            ___            between  the proved  tortfeasor who  has clearly  caused some            harm, and the entirely innocent plaintiff, any hardship . . .            should fall upon the former."  Id.                                           ___                                            ____________________            10.  At  trial,   defendant  asked  for  a  jury  instruction            indicating that  if the  causes of plaintiff's  injuries were            separable, plaintiff had the burden of proof on the extent to            which the accident caused the aggravation of the pre-existing            condition.   Because  this  case involves  an instruction  on            indivisible injuries, we need not decide the question  of who            bears  the  burden  as   to  aggravation  of  a  pre-existing            condition when the  damages are separable.   However, to  the            extent that  the Railroad is contending  that plaintiff bears            the entire  burden  of proving  damages,  we note  that  this            argument  is undercut  by the  statutory scheme,  which makes            comparative negligence an affirmative  defense.  But cf. Dale                                                             _______ ____            v. Baltimore &  O. R.R., 552  A.2d 1037, 1041 (Pa.  1989) (in               ____________________            FELA  case, it was error  to instruct jury  that "if it found            the railroad negligent, the  railroad was responsible for the            entirety  of damages,  whether or  not its  negligence caused            those damages in whole  or in part," because implicit  in the            comparative negligence scheme is the principle that defendant            is only liable to the extent that its negligence causes harm,            whether the other causes are the employee's own negligence or            a pre-existing health condition).            11.  The rule placing the  burden as to apportionment  on the            defendant  has  also  been  adopted  by  at  least one  court            interpreting  a similar  federal statute.   Maurer  v. United                                                        ______     ______            States, 668 F.2d 98, 100 (2d Cir. 1981) (Public Vessels Act).            ______                                         -21-                                          21                      The  primary policy  argument against  shifting the            burden   of  proving  apportionment   to  defendant  is  that            plaintiff  is in the better position to prove what portion of            his  injuries was caused by the accident.  LaMoreaux v. Totem                                                       _________    _____            Ocean Trailer Express, Inc., 632 P.2d 539, 545 (Alaska 1981).            ___________________________            However,  given   discovery  of   medical  records   and  the            availability   of  medical   examinations  of   plaintiff  by            defendant's  doctor, Fed. R. Civ. P. 35,  it is not unfair to            place on  defendant that burden  and the consequences  of not            meeting it.                      We therefore think the better rule, particularly in            light  of FELA's  broad  remedial purposes,  is  that if  the            factfinder cannot separate injuries  caused or exacerbated by            the  accident  from  those   resulting  from  a  pre-existing            condition, the defendant is liable for all such injuries.12                      Affirmed.                                            ____________________            12.  Cf. Varhol  v. National  R.R. Passenger Corp.,  909 F.2d                 ___ ______     ______________________________            1557, 1564 (7th Cir.  1990) (upholding use of interrogatories            asking  jury  "to  determine  what  portion of  [plaintiff's]            condition  . .  . resulted  from the  [accident], and,  if it                                                                    _____            could  determine that  portion, to  take  it into  account in            ______________________________            determining damages" (emphasis added)).                                         -22-                                          22
