                   IN THE COURT OF APPEALS OF IOWA

                                 No. 15-0908
                           Filed November 9, 2016


FRANKLIN DAVID BARKER,
    Plaintiff-Appellee,

vs.

UNION PACIFIC RAILROAD COMPANY,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Douglas F. Staskal,

Judge.



      Union Pacific Railroad Company appeals the judgment entered following a

jury’s award of damages to Franklin Barker on his claim under the Federal

Employers’ Liability Act. AFFIRMED.




      Thomas A. P.       Hayden   of   Hayden   Reinhart, L.L.C.,   Pittsburgh,

Pennsylvania, Alice E. Loughran of Steptoe & Johnson L.L.P., Washington, DC,

and Bruce E. Johnson of Cutler Law Firm, P.C., West Des Moines, for appellant.

      Christopher H. Leach and Gene C. Napier of Hubbell Law Firm, L.L.C.,

Kansas City, Missouri, and Joseph M. Galligan of Galligan Reid, P.C., Des

Moines, for appellee.



      Heard by Vaitheswaran, P.J., and Potterfield and Bower, JJ.
                                         2


VAITHESWARAN, Presiding Judge.

       Franklin Barker worked as a conductor for Union Pacific Railroad

Company.        After developing a condition affecting his kidneys, he sued the

company under the Federal Employers’ Liability Act (FELA), alleging he was

required to perform “dangerously excessive amounts of work.”         Union Pacific

defended in part by asserting Barker’s genetic makeup made him susceptible to

the condition. A jury awarded Barker $3,543,716. On appeal, Union Pacific

contends (1) Barker failed to prove negligence or “present sufficient evidence on

causation”; (2) the district court erred “by allowing expert testimony [from a

treating physician] on causation”; and (3) the jury instructions were “erroneous

and highly prejudicial.”

I.     Negligence and Causation

       The jury was instructed Barker would have to prove the following elements

of his claim:

              1. [Union Pacific’s] employees were negligent by failing to
       provide a reasonably safe workplace for [Barker].
              2. [Union Pacific’s] negligence played any part in causing
       [Barker’s] injury and damages.
              3. The nature and amount of damages.

Union Pacific takes issue with the first two elements of this instruction.      Our

review is for substantial evidence. See Dudley v. Ellis, 486 N.W.2d 281, 283

(Iowa 1992) (“If there is substantial evidence to support each of the elements of a

plaintiff’s claim, a motion for directed verdict or for judgment notwithstanding the

verdict should be denied.”).
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          A.     Negligence

          The jury was instructed negligence means “the failure to use ordinary

care.” See Fletcher v. Union Pac. R.R. Co., 621 F.2d 902, 909 (8th Cir. 1980)

(“The railroad is negligent if it knew or should have known that its assignment

exposed the employee to an unreasonable risk of harm.”). A reasonable juror

could have found the following facts.

          A minute before midnight on a cold night in January, Barker was assigned

to a railroad yard in Ames. The person who had trained him to work in this yard

recommended “that anyone that hasn’t worked that yard with familiarity get a

pilot[1] or someone that is more familiar with the yard than they are.” The training

supervisor testified Barker “did not have the experience to be working that yard

by himself.” He said he “probably instructed” Barker that, if he was unsure about

something, “he should ask anybody, not just the manager, engineer, make a

phone call, call up the dispatcher and say, I am having problems.”                       He

acknowledged “[m]anagers are very hard to get ahold of.”

          Barker confirmed that his training supervisor told him, “Don’t come back to

[the Ames] yard without a pilot or some other form of help. . . . This is too big a

job for one person.” When Barker received the assignment, he told the crew

caller he was “not real familiar with that job” and he “needed help with it.” The

crew caller responded, “Your engineer has worked that yard a hundred times,

and he will know everything you need for the job.” Barker “did not get a pilot.”

          Barker completed the Ames job “just before noon.”              The job required

Barker to walk approximately ten miles in the cold and snow, kneel to grab and

1
    According to Barker, “A pilot is an experienced conductor that can help with the work.”
                                         4


couple air hoses, fix air leaks along the way, reposition the train, and climb up

and down the cars to pull and release hand levers and brakes.

      At the end of his shift, Barker “noticed some stiffness and soreness.” After

returning to his home base, he was “very sore” and “[c]ould hardly stand up.”

Barker “knew he was hurting,” and he told his manager the “job was way too

difficult for one man to handle on his own.” Barker subsequently experienced

kidney failure, which, according to his physician Dr. Thomas, was caused by a

muscle breakdown condition known as rhabdomyolysis.

      A railroad safety consultant called by Barker testified that Barker was

required to place ninety-six railroad cars together “in three tracks and they had to

be doubled over to put them in one track and then once again separated

because there wasn’t room to get around them so there was quite a maneuver to

accomplish all that.” The consultant opined that Barker was required to perform

“a tremendous amount of work” and

      with the incidentals like having to stop and walk again . . . plus the
      getting on and off the cars and the engines and all the hand brake
      sets and releases, ultimately the extra amounts of walking that had
      to be done and the air brake problems that took place, it was a
      phenomenal amount of work for the amount of time in which it was
      done.

He stated that, in his forty-five years in the business, he had never seen “this

much work done or even assigned to a one-man crew or probably even a two-

man crew.” He continued, “Mr. Barker was given more work to do than should

reasonably have been expected of a person” and it should have been “well

known” to Union Pacific that the amount of assigned work could lead to injury.
                                           5


He reiterated it “was extremely excessive for them to expect that amount of work

out of one man in that location.”

       The jury reasonably could have found that Union Pacific failed to use

ordinary care in assigning Barker work.           The record contains substantial

evidence to support the negligence element.

       B.     Causation

       “FELA’s language on causation . . . ‘is as broad as could be framed.’”

CSX Transp., Inc. v. McBride, 564 U.S. 685, 691 (2011) (citation omitted). The

statute provides for “a relaxed standard of causation.” Id. (citation omitted). The

test “is simply whether the proofs justify with reason the conclusion that employer

negligence played any part, even the slightest, in producing the injury or death

for which damages are sought.” Id.; accord Fletcher, 621 F.2d at 909 (“The test

of causation under the FELA is whether the railroad’s negligence played any

part, however small, in the injury which is the subject of the suit.”).

       As noted, Dr. Thomas treated Barker for kidney failure, which he opined

was caused by rhabdomyolysis. He explained that Barker’s “muscle enzymes in

the blood were very elevated” and “his muscle had severely broken down.” He

also testified the kidney damage was “permanent” and “progressive.”         When

asked about Barker’s later-diagnosed genetic condition known as LCHAD, he

opined that Barker never manifested anything consistent with this condition. In

his view, the level of exertion Barker described would have caused

rhabdomyolysis regardless of any genetic factors. He rhetorically asked, “Why

would we talk about birth defect when that happened 56 years ago? . . . [T]here

was a very strong history of severe muscle exertion which is a very known cause
                                        6


of muscle injury. So at that point I did not look for [LCHAD].” He summarized his

opinion as follows: “Kidney failure obvious.     Why?     Rhabdomyolysis.     Why

rhabdomyolysis? Muscle exertion.”

       The jury also heard from an expert called by Union Pacific, who discussed

a case study suggesting LCHAD caused rhabdomyolysis. This expert opined

that the type of effort expended by Barker was “just not consistent with the

development of exertional rhabdomyolysis that is laid out in the literature, in the

scientific and medical literature.”

       The jury reasonably could have afforded Dr. Thomas’ testimony more

weight, given his first-hand knowledge of Barker’s condition.        See State v.

Jacobs, 607 N.W.2d 679, 686 (Iowa 2000).         The record contains substantial

evidence to support the causation element. See Easton v. Howard, 751 N.W.2d

1, 5 (Iowa 2008) (“When reasonable minds would accept the evidence as

adequate to reach the same findings, evidence is substantial.”).

II.    Dr. Thomas’ Qualifications

       Union Pacific challenges Dr. Thomas’ qualifications as an expert. The

company argues his testimony “implicated at least three different scientific

fields—genetics, physiology, and nephrology—and it is undisputed he lacked

qualifications in two of those fields.” The district court rejected this argument,

reasoning, as follows: “The testimony at issue is from a board-certified kidney

specialist about a recognized medical condition affecting kidneys.        It is not

testimony about some novel scientific or technical theory.” Our review of this

ruling is for an abuse of discretion. See Ranes v. Adams Labs., Inc., 778 N.W.2d

677, 685 (Iowa 2010).
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       Iowa has long been committed to a “liberal view on the admissibility of

expert testimony.” Quad City Bank & Tr. v. Jim Kircher & Assocs., P.C., 804

N.W.2d 83, 92 (Iowa 2011). But even if our state espoused a more stringent

standard, Dr. Thomas would have easily satisfied that standard. Union Pacific

concedes Dr. Thomas’ expertise in kidney disease.            His medical education,

internship in internal medicine, and experience with direct patient care also

afforded him expertise in physiology and genetics. In light of his background, the

district court did not abuse its discretion in finding Dr. Thomas well-qualified to

opine on Barker’s condition.

III.   Jury Instructions

       Union Pacific contends (A) the jury should have been instructed to

apportion damages based on Barker’s “preexisting condition” of LCHAD; (B) an

instruction withdrawing assumption-of-risk as an issue was misleading; (C) the

jury should have received a foreseeability instruction; and (D) the jury should

have received a mitigation-of-damages instruction. Our review is on error. See

Rivera v. Woodward Res. Ctr., 865 N.W.2d 887, 891 (Iowa 2015).

       A.     Apportionment Instruction

       Union Pacific requested the following apportionment instruction:

              There has been evidence that [Barker] had a genetic
       disease,     Long-Chain       3-Hydroxyacyl-CoA        Dehydrogenase
       Deficiency (“LCHAD”), that pre-existed the events that are the
       subject of this lawsuit. In your deliberations, if you find for [Barker],
       you should distinguish between the amount of damages sustained
       by [Barker] as a result of the injuries claimed in this case and the
       amount of damages sustained by [Barker] as a result of his pre-
       existing conditions. [Barker] is not entitled to any damages you
       have determined are the result of his pre-existing conditions. Any
       award must not include damages that, because of [Barker’s]
       preexisting LCHAD disease condition, probably would have
                                         8


       occurred anyway in the future if [Barker] had not had his first
       episode of rhabdomyolysis on January 30, 2007.

       In declining to give this instruction, the district court reasoned in part as

follows:

              Apportionment may have been appropriate if Barker had
       manifested some known disability as a result of his LCHAD that
       was aggravated by the work performed for the railroad. However,
       there is no evidence in this case that Barker knew he had LCHAD
       or that he suffered some identifiable disability as a result of having
       LCHAD. Rather, this is a classic case for the “eggshell plaintiff”
       instruction, which was given.

The court’s reasoning finds support in Waits v. United Fire & Casualty Co., 572

N.W.2d 565 (Iowa 1997). There, our supreme court considered an instruction

similar to Union Pacific’s proposed instruction. The court stated:

       [The] mere existence of a prior non-disabling, asymptomatic, latent
       condition is not a defense. A tort-feasor whose act, superimposed
       upon such a condition, results in an injury may be liable in damages
       for the full disability. In these cases the injury, and not the dormant
       condition, is deemed to be the proximate cause of the pain and
       disability.

Waits, 572 N.W.2d at 577 (citation omitted). As Union Pacific points out, Waits is

not a railroad case under FELA. Nonetheless, the quoted language is instructive

and finds support in FELA cases. See McLaughlin v. BNSF Ry. Co., 300 P.3d

925, 935 (Colo. App. 2012) (“Giving an aggravation instruction is not appropriate

where the pre-existing condition was asymptomatic, but is appropriate where

there is evidence that the plaintiff had previously suffered pain or symptoms from

the condition, and the condition allegedly was aggravated by the incident.”); cf.

Stevens v. Bangor & Aroostook R.R. Co., 97 F.3d 594, 601, 603 (1st Cir. 1996)

(“[I]f the factfinder cannot separate injuries caused or exacerbated by the

accident from those resulting from a pre-existing condition, the defendant is liable
                                           9

for all such injuries.”); Sauer v. Burlington N. R.R. Co., 106 F.3d 1490, 1494-95

(10th Cir. 1996) (finding “evidence that a substantial, identifiable portion of [the

plaintiff’s] injuries was not attributable to” the defendant).

       Turning to the record, Dr. Thomas testified that Barker “did not manifest

any signs of LCHAD prior to this episode.” Dr. Thomas explained,

       Rhabdomyolysis can occur when somebody has LCHAD but when
       somebody has LCHAD the rhabdomyolysis should start at a very
       young age: Infancy, childhood, teenage. The fact that he never had
       any such manifestation in his entire lifetime up to the age of 55 tells
       me that . . . he has had no manifestations of LCHAD.

He also noted that the geneticists who diagnosed Barker with LCHAD “did not

comment that that was the cause of his muscle breakdown or that is the cause of

his muscle breakdown.” Because Barker’s LCHAD was latent, the district court

had no obligation to give Union Pacific’s proposed instruction. See Sleeth v.

Louvar, 659 N.W.2d 210, 216 (Iowa 2003) (noting “defendant point[ed] to no

evidence that [the plaintiff] had any disability or pain prior to the accident”);

Becker v. D & E Distrib. Co., 247 N.W.2d 727, 731 (Iowa 1976) (noting the

plaintiff’s “prior foot condition was asymptomatic before the collision and

consequent leg injury” and “it was not disabling in any way”).

       In any event, the damages instruction given by the court exhorted the jury

to assess only the amount “caused in any part by the defendant’s negligence, as

proved by the evidence.” This instruction captured the concept Union Pacific

hoped to convey through its proposed instruction. See Lancaster v. Norfolk & W.

Ry. Co., 773 F.2d 807, 823 (7th Cir. 1985) (noting the damages instruction was

“sufficiently general to allow . . . the jury to adjust damages downward for the

probability that something other than tortious misconduct would have triggered
                                               10


[the plaintiff’s] latent schizophrenia”). We conclude the district court did not err in

declining to give the jury Union Pacific’s proposed instruction on apportionment

of damages.

          B.     Assumption-of-Risk Withdrawal Instruction

          The jury was instructed, “The law does not require that [Barker] assume

the risks of his employment.” Union Pacific characterizes this instruction as a

withdrawal of the assumption-of-risk defense. The railroad concedes assumption

of risk is not a viable defense in FELA cases and acknowledges the instruction is

a correct statement of the law.2            The railroad simply argues it solicited no

evidence that Barker assumed the risk of his injury and, accordingly, the court

should not have given the instruction.

          To the contrary, Union Pacific elicited testimony from one of its managers

regarding the level of work performed by employees and the type of assistance

available to them.         On direct examination by Union Pacific’s attorney, the

manager testified, “You could refuse the job and . . . they would probably call you

in and ask you about. But, you know, . . . that’s what you’re hired to do is pick up

a train by yourself.”          This testimony alone was sufficient to support the

assumption-of-risk-withdrawal instruction. But there was more. As the district

court stated:

2
    45 U.S.C. section 54 provides:
                  In any action brought against any common carrier under or by
         virtue of any of the provisions of this chapter to recover damages for
         injuries to . . . any of its employees, such employee shall not be held to
         have assumed the risks of his employment in any case where such injury
         . . . resulted in whole or in part from the negligence of any of the officers,
         agents, or employees of such carrier; and no employee shall be held to
         have assumed the risks of his employment in any case where the
         violation by such common carrier of any statute enacted for the safety of
         employees contributed to the injury . . . of such employee.
                                           11


       The combination of factors of the railroad’s emphasis in its defense
       on the facts that the plaintiff was performing only duties that were
       part of his normal job, that he did not himself believe he was over-
       exerting himself, that his injuries were the consequence of a
       genetic condition and not over-exertion and the testimony of an
       engineer that for the plaintiff to ask for help would have been “going
       totally against what you agreed to when you were hired,” led the
       court to conclude the assumption-of-risk instruction was warranted.

We discern no error in the court’s ruling.

       C.     Foreseeability Instruction

       Union Pacific proposed the addition of language to the instruction defining

negligence. Specifically, the railroad sought a paragraph highlighting its inability

to foresee Barker’s genetic condition.

       “‘[R]easonable foreseability of harm’ . . . is indeed ‘an essential ingredient

of [FELA] negligence.’”    CSX Transp., Inc., 564 U.S. at 703 (emphasis and

citation omitted) (alterations in original). “If negligence is proved, however, and is

shown to have ‘played any part, even the slightest, in producing the injury,’ then

the carrier is answerable in damages even if ‘the extent of the [injury] or the

manner in which it occurred’ was not ‘[p]robable’ or ‘foreseeable.’” Id. at 703-04

(emphasis and citation omitted) (alterations in original). As our highest court

stated, “[I]t is clear that Congress intended to greatly lower the bar for injured

workers covered by the act, and to liberally allow recovery in cases that would

not be allowed under general principles of tort law.” Klein v. Chi. Cent. & Pac.

R.R. Co., 596 N.W.2d 58, 60 (Iowa 1999). Under this standard, the district court

did not err in declining to amplify the jury instruction on negligence with additional

facts detailing Union Pacific’s claimed inability to foresee Barker’s genetic

condition.
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       D.     Mitigation-of-Damages Instruction

       Union Pacific contends the district court erred in refusing to give its

proposed mitigation-of-damages instruction.       The district court thoroughly

addressed this issue as follows:

              While there is no doubt that a plaintiff is required to take
       reasonable steps to mitigate damages, the evidence in this case
       did not warrant giving such an instruction. As to Barker’s [two day]
       delay in seeking medical treatment, there is no evidence that he
       acted unreasonably by not seeking care sooner. While the
       reasonableness of a delay in seeking care might not be the subject
       of expert testimony the evidence, in the court’s view, would not
       have warranted even a lay conclusion of unreasonableness in
       Barker’s conduct in seeking medical care. More importantly,
       however, is the fact that there is no evidence that any delay
       contributed to a worsening of Barker’s damages. The same
       observation is true with respect to his failure to follow the
       recommended [low-fat] diet—there is no evidence that this failure
       contributed to his damages in any way.

We discern no error in this ruling.

       Finding substantial evidence to support the elements of Barker’s cause of

action, no abuse of discretion in the district court’s refusal to disqualify Dr.

Thomas, and no error in the challenged jury instructions, we affirm the jury award

in favor of Barker.

       AFFIRMED.
