                IN THE COURT OF APPEALS OF TENNESSEE

                                                    FILED
TRABON GENTRY, as the Executor   )   C/A NO. 03A01-9610-CV-00341
for the Estate of DONNIE R.      )                  July 22, 1997
GENTRY, Deceased,                )
                                 )                  Cecil Crowson, Jr.
     Plaintiff-Appellant,        )                  Appellate C ourt Clerk
                                 )   APPEAL AS OF RIGHT FROM THE
                                 )   HAMILTON COUNTY CIRCUIT COURT
v.                               )
                                 )
                                 )
NORFOLK SOUTHERN RAILWAY COMPANY,)
                                 )   HONORABLE ROBERT M. SUMMITT,
     Defendant-Appellee.         )   JUDGE




For Appellant                        For Appellee

B. STEWART JENKINS                   CLAYTON M. WHITTAKER
ROBERT D. BRADSHAW                   Foster, Foster, Allen &
Jenkins & Bradshaw, P.C.               Durrence
Chattanooga, Tennessee               Chattanooga, Tennessee




                           OPINION




AFFIRMED AND REMANDED                                          Susano, J.

                                 1
          This is a suit for damages brought under the Federal

Employers’ Liability Act, 51 U.S.C. § 51, et seq. (FELA), by the

Executor of the Estate of Donnie R. Gentry (Gentry).   The

Executor sued Gentry’s employer, Norfolk Southern Railway

Company (Norfolk Southern), alleging that Norfolk Southern’s

negligence had caused Gentry to suffer a fatal heart attack while

on the job.   As expressed in answers to interrogatories, the jury

found that Norfolk Southern was negligent; however, it then

concluded that such negligence did not cause Gentry’s death.     The

jury thus returned a verdict in favor of Norfolk Southern.     The

Executor appealed the trial court’s judgment entered on the

jury’s verdict, raising various issues which substantially

present the following questions for our review:



          1. Does the record contain material evidence
          to support the jury’s determination that
          Norfolk Southern’s negligence did not cause,
          in whole or in part, Gentry’s death?

          2. Did defense counsel improperly vouch for
          the credibility of a witness and make
          prejudicial remarks based upon facts outside
          the record, thereby impermissibly affecting
          the jury’s verdict?

          3. Did the trial court err in giving the
          jury an instruction regarding purely
          emotional injuries?



                             I.   Facts



          At the time of his death, Gentry was employed as a

lieutenant with the Norfolk Southern police department.      In each

year since 1985, Gentry had undergone an annual physical

examination, as required by the railroad.   Norfolk Southern had

designed an evaluation form and procedure to be followed by the

                                  2
physicians selected to perform the examinations.    Neither the

procedure nor the form provided for inquiry into the employee’s

family history of disease.    The results of the yearly

examinations were typically reviewed by Dr. J.P. Salb, Norfolk

Southern’s Director of Medical Services.



           In 1987, Gentry was informed by Dr. Salb that his

cholesterol level was 69 points over the recommended maximum

level of 200.    Dr. Salb recommended that Gentry observe a low-fat

diet.   Following Gentry’s physical in 1988, Dr. Salb recommended

that he lose at least seven pounds, which he had gained since the

last examination.    In 1989, Dr. Salb again recommended that

Gentry lose weight.    Dr. Salb subsequently discontinued his

practice of writing follow-up letters to the employees, and

Gentry received no further communication from Dr. Salb regarding

the results of his yearly examinations.    Gentry continued,

however, to exhibit several risk factors for coronary artery

disease, including high cholesterol and triglyceride levels,

smoking and obesity.



           At his examination in July, 1991, Gentry complained of

having suffered chest pain for three or four months.      Although

his cholesterol and weight had dropped temporarily in 1990, they

had returned to elevated levels by the time of his 1991 physical.

However, the examining physician, Dr. Nat Swann, noted that the

results of Gentry’s electrocardiogram were normal and apparently

concluded that Gentry’s chest pain was likely the result of

indigestion.    Dr. Swann scheduled gall bladder and

gastrointestinal tests, but Gentry did not return to undergo


                                  3
those tests.    Dr. Swann did not diagnose Gentry as having

coronary artery disease, nor did he discover that Gentry had a

family history of that affliction.



            In the months leading up to his death, Gentry continued

to suffer chest pain.     His wife expressed her concern that there

could be a problem with his heart, but he assured her that it was

merely indigestion.     On June 12, 1992, Gentry suffered a fatal

heart attack while investigating a train derailment.        The medical

examiner determined the causes of death to be an acute myocardial

infarction, i.e., blockage of an artery to the heart, and

coronary atherosclerosis, i.e., deposits of cholesterol in the

arteries.   He also viewed Gentry’s obesity as a contributing

cause.



            The Executor brought suit on behalf of Gentry’s estate,

alleging that Norfolk Southern was negligent in failing to

diagnose Gentry’s coronary artery disease in failing to warn him

of his condition, and in continuing to place him in a stressful

work environment.     Following a trial, the jury found that

although Norfolk Southern was negligent, its negligence did not

cause Gentry’s death, in whole or in part.



               II.   The Federal Employers’ Liability Act



            The FELA provides, in pertinent part, that



            [e]very common carrier by railroad while
            engaging in commerce between any of the
            several States... shall be liable in damages
            to any person suffering injury while he is

                                    4
          employed by such carrier in such commerce,
          or, in case of the death of such employee, to
          his or her personal representative... for
          such injury or death resulting in whole or in
          part from the negligence of any of the
          officers, agents, or employees of such
          carrier...



45 U.S.C. § 51.    The parties stipulated that at the time of

Gentry’s death: 1) Gentry was an employee of Norfolk Southern; 2)

he was performing duties in the course of his employment; and 3)

Norfolk Southern was a common carrier by railroad, engaged in

interstate commerce.    Thus, the issues left for the jury to

determine were whether Norfolk Southern was negligent and whether

that negligence caused, in whole or in part, Gentry’s injuries

and death.    As noted earlier, the jury did find that Norfolk

Southern was negligent.    Norfolk Southern concedes in its brief

that there was evidence of negligence--on the part of its

physicians--from which the jury could have reached such a

conclusion.    Therefore, the central issue on this appeal involves

the question of causation.    We must determine whether the record

contains material evidence from which the jury could have

concluded that Norfolk Southern’s negligence did not cause

Gentry’s death.



          The United States Supreme Court has stated that the

provisions of the FELA, including those relative to causation,

are to be liberally construed to further Congress’ remedial goal.

Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 114 S.Ct.

2396, 2404, 129 L.Ed.2d 427 (1994).    In Consolidated Rail

Corporation, the Court reaffirmed an earlier holding regarding

causation under the FELA:


                                  5
          . . .we held in Rogers v. Missouri Pacific R.
          Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d
          493 (1957), that a relaxed standard of
          causation applies under FELA. We stated that
          “[u]nder this statute the test of a jury case
          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., at 506,
          77 S.Ct., at 448.



Consolidated Rail Corp., 114 S.Ct. at 2404.



                    III.     Standard of Review



          The United States Supreme Court has held that a jury’s

determination in a FELA case is entitled to great weight on

appeal:



          Only when there is a complete absence of
          probative facts to support the conclusion
          reached [by the jury] does a reversible error
          appear.



Dennis v. Denver & Rio Grande Western R.R. Co., 375 U.S. 208, 84

S.Ct. 291, 293, 11 L.Ed.2d 256 (1963)(quoting Lavender v. Kurn,

327 U.S. 645, 66 S.Ct. 740, 744, 90 L.Ed. 916 (1946)).    In

Lavender, the Court stated that in an FELA case, where the

circumstances evidence a reasonable basis for the jury’s verdict,

an appellate court may not weigh the evidence or assess the

credibility of witnesses and arrive at a contrary conclusion.

Lavender, 66 S.Ct. at 744.    The Court further noted that



          the appellate court’s function is exhausted
          when that evidentiary basis becomes apparent,

                                  6
           it being immaterial that the court might draw
           a contrary inference or feel that another
           conclusion is more reasonable.



Id.



                IV.   Jury’s Finding of No Causation



           We have determined that the record does contain

material evidence from which the jury could have concluded that

Norfolk Southern’s negligence did not play any part, “even the

slightest,” in Gentry’s death.   For example, there was evidence

that Gentry smoked up to a pack and a half of cigarettes each

day; that Gentry was overweight and did not follow Dr. Salb’s

suggestion that he lose weight; and that he continued to register

a high cholesterol level, despite having been advised to take

steps to lower it.    Robert Waggoner of Norfolk Southern testified

that Gentry had told him that he had a problem with his EKG, as

well as high cholesterol, but that he was going to have to

postpone some necessary tests.        In addition, the record

indicates that Gentry failed to return to Dr. Swann’s office, or

to see another physician, for the gastrointestinal testing that

Dr. Swann had ordered in response to Gentry’s complaints of chest

pain.   Mrs. Gentry testified that she had expressed to Gentry her

concern that his chest pain could have been the result of a heart

problem.   Gentry, however, assured her it was not related to his

heart, and he took no further steps to have the problem

diagnosed.



           Given the foregoing, we find the jury’s conclusion --


                                  7
that Gentry’s death was caused by factors other than Norfolk

Southern’s negligence -- to be supported by the evidence.     Where

the record contains an evidentiary basis to support its verdict,

the jury is at liberty to discard any facts that are inconsistent

with its determination.    Dennis, 84 S.Ct. at 293; Lavender, 66

S.Ct. at 744.   Therefore, any countervailing evidence is

essentially of no consequence on this appeal.   Our role is

confined to determining whether the record reflects evidence from

which the jury could have reached the conclusion that it did.

Once such evidence “becomes apparent”, as it has upon our review

of the record, our inquiry into this issue is concluded.      Id.



                  V.   The Executor’s Other Issues



            We will now address the remaining issues raised by the

Executor.   The Executor argues that the trial court should have

granted his motion for a new trial, based upon alleged misconduct

during closing argument by Norfolk Southern’s counsel.

Specifically, the Executor insists that defense counsel

improperly vouched for the credibility of a witness and made

prejudicial remarks to the jury that were based upon facts

outside the record, and that such statements unduly influenced

the jury’s verdict.



            The Executor contends that defense counsel’s statement

that the witness Robert Waggoner “is a very honest and forthright

person” violated Disciplinary Rule 7-106(C)(4) of the Code of

Professional Responsibility and was hence improper.    That section

provides, in pertinent part, as follows:


                                  8
            In appearing in a professional capacity
            before a tribunal, a lawyer shall not:

                             *    *    *

            [a]ssert the lawyer’s personal opinion... as
            to the credibility of a witness....



Rule 8, Tenn. S. Ct. R., DR 7-106(C)(4).    It appears that Norfolk

Southern offered Waggoner’s testimony primarily to show that

Gentry had been aware of his heart problem, and that he had

postponed the scheduled gall bladder and gastrointestinal tests.

The Executor also points out that defense counsel argued that if

the jury believed Waggoner’s testimony, then the jury would be

obligated to return a verdict for Norfolk Southern.    He contends

that by vouching for Waggoner’s honesty, defense counsel

improperly reinforced and accredited his testimony, thus

influencing the jury’s verdict.



            Following the Executor’s objection to defense counsel’s

comments, the trial court offered this cautionary instruction to

the jury:



            whether a witness was telling the truth is
            strictly for you, the jury, to decide. You
            must ignore references to witnesses as honest
            and telling the truth. I will instruct you
            on how to judge credibility in my
            instructions later.



During its jury charge, the trial court offered additional

instructions regarding the proper assessment of the credibility

of the witnesses.



            We believe that any error that may have occurred in

                                  9
this regard was corrected by the court’s subsequent instructions

to the jury.    Furthermore, when the record is considered as a

whole, it is unlikely that defense counsel’s statements regarding

Waggoner affected the jury’s verdict.      Accordingly, we hold that

the trial court did not abuse its discretion in refusing to grant

a new trial on this ground.



          The Executor next contends that defense counsel made

highly prejudicial comments to the jury, based upon facts outside

the record, regarding Gentry’s relationship with his severely

retarded son.    At the time of his death, Gentry was paying $400

per month to his ex-wife as child support for the benefit of his

son Jeff, who suffered from cerebral palsy and mental

retardation.    During his argument on the issue of damages

recoverable for Jeff Gentry’s loss of his father’s financial

support, defense counsel stated that “from the time of the

divorce, Mr. Gentry never went back to see his son, never did.

He never added anything at all.”      The Executor contends that

these remarks had the prejudicial effect of creating an

unfavorable impression of Gentry in the minds of the jurors.

Norfolk Southern, on the other hand, contends that the statements

were based upon a reasonable inference to be drawn from the

testimony of Gentry’s ex-wife, who stated that she had only seen

Gentry “in passing” since their divorce.



          These statements of defense counsel were made in the

context of Norfolk Southern’s argument that, with regard to the

issue of damages, Gentry’s estate was entitled to recover no more

than $400 a month for the benefit of Jeff Gentry.      They were not


                                 10
relevant to the question of causation, an element which the jury

concluded the Executor had failed to prove.     We do not believe

that the jury’s determination regarding causation was affected by

defense counsel’s comments about Gentry’s relationship with his

son.    Furthermore, the record indicates that Gentry’s son lived

with his ex-wife and was completely dependent upon her for his

care.    It is a reasonable inference from these living

arrangements that Gentry would have frequently seen his ex-wife

if and when he visited his son.    Defense counsel’s remarks,

therefore, were reasonably based upon the ex-wife’s testimony

that she had only seen Gentry “in passing” since their divorce.

In any event, as previously noted, we do not believe that these

comments, even if unsupported by the evidence, affected the

jury’s verdict.    Therefore, the trial court did not abuse its

discretion in refusing to award a new trial on that basis.



            Finally, the Executor contends that the trial court

erred by instructing the jury regarding emotional injuries, the

zone of danger, and workplace stress under the FELA.      The

Executor argues that the instruction was confusing, irrelevant,

and given out of order, and that it therefore improperly affected

the jury’s verdict.    We disagree.    The instruction contains an

accurate statement of the law.    It was warranted under the

circumstances of this case.    The Executor’s theory of the case,

as composed by his counsel, was read to the jury by the trial

judge.    It included the argument that the physical and mental

stress placed upon Gentry had created an unsafe place to work,

thereby contributing to Gentry’s heart attack and death.

Furthermore, during his closing argument, counsel for the


                                  11
Executor told the jury that the stress placed upon Gentry

represented “an important part” of his case.    Nevertheless, the

United States Supreme Court has refused to read the FELA to allow

recovery solely for stress in the ordinary course of employment.

See Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 114 S.Ct.

2396, 2412, 129 L.Ed.2d 427 (1994).    Norfolk Southern was thus

entitled to such an instruction, which was both relevant to a

portion of the Executor’s theory of the case and necessary to

ensure that the jury would not erroneously award damages for

workplace stress causing emotional injuries, even if related to

Gentry’s heart attack.



            We find that the trial court did not err in giving the

requested instruction on emotional injuries.



                           VI.   Conclusion



            Given the foregoing, we hold that the record does

contain material evidence to support the jury’s conclusion that

Norfolk Southern did not cause, “even [in] the slightest,” the

death of Donnie R. Gentry.    The Executor’s issues pertaining to

defense counsel’s alleged misconduct and the trial court’s

instructions to the jury are found to be without merit.



            Accordingly, the judgment of the trial court is

affirmed.    Costs on appeal are assessed against the Appellant and

his surety.    This case is remanded to the trial court for the

collection of costs assessed there, pursuant to applicable law.




                                  12
                                 __________________________
                                 Charles D. Susano, Jr., J.



CONCUR:


_________________________
Houston M. Goddard, P.J.


_________________________
Herschel P. Franks, J.




                            13
