




02-10-375-CV





















COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 



 
 
NO. 02-10-00375-CV
 
 



BNSF Railway Company


 


APPELLANT




 
V.
 




Ronald Nichols


 


APPELLEE



 
 
----------
 
FROM THE 17th
District Court OF Tarrant COUNTY
----------
 
OPINION
----------
          This
is an appeal from a jury verdict in favor of Ronald Nichols in his Federal
Employer’s Liability Act (FELA) suit against BNSF Railway Company.[1] 
In three issues, BNSF contends that there is no evidence that Nichols’s
degenerative disc disease was caused by getting on and off moving railcars,
that the trial court erroneously denied BNSF’s requested jury instructions on
general and specific causation, and that the jury’s negligence finding is not
supported by the evidence because a cumulative trauma injury was not foreseeable. 
We affirm.
Background
          Nichols
worked as a switchman between 1979 and 1995.[2]  A switchman separates
railcars from a train coming into the yard and moves them to different tracks based
on their ultimate destination.  While Nichols was employed as a switchman, he was
required to mount and dismount moving railcars about twenty times per day on a
slow day, or thirty to thirty-five times on a busy day.[3]
 He was trained in doing so safely and was provided a rule book describing how
to do so.  Nichols became an engineer in 1995 and from that time until 2007 no
longer mounted and dismounted moving rail cars.
In
2004, Nichols began having knee pain; in conjunction with his treatment, the
doctor took a lumbar x-ray of Nichols’s spine, which showed no abnormalities.  Nichols
began having neck and shoulder pain in 2005 and went to see a different doctor
in 2006.  Because an MRI of his neck showed some disc herniation and
degeneration, that doctor prescribed Advil.
In
2007, Nichols began seeing Dr. Dan Eidman for his neck and back pain, and he
eventually had surgery to repair the discs in his neck.  Nichols stopped
working for BNSF that same year; Dr. Eidman had already “pulled [him] out” of
work before the surgery.
          Nichols
sued BNSF under FELA, alleging that he had suffered “cumulative trauma
injuries” because of BNSF’s negligence in allowing him to “mount and dismount moving
equipment.”  A jury awarded Nichols $1,560,740, including an award of $399,000
for past medical expenses; the trial court granted a motion to exclude the past
medical expenses and rendered judgment for Nichols for $1,163,960.[4]
Causation
          In
its first issue, BNSF contends that there is no evidence that getting on and
off moving equipment (GOOME) caused Nichols’s injuries.  Included in BNSF’s
discussion of its first issue is the argument that the testimony of Nichols’s
expert, Dr. Eidman, was unreliable.
Applicable
Law
          Under
FELA, every railroad engaging in interstate commerce is liable in damages to
any employee injured during his employment when such injury results in whole or
in part from the railroad’s negligence or by reason of any defect or
insufficiency due to its negligence.  See 45 U.S.C.A. § 51 (West 1988); Union
Pac. R.R. v. Williams, 85 S.W.3d 162, 165 (Tex. 2002); Neloms v. BNSF Ry.,
No. 02-09-00281-CV, 2011 WL 944434, at *1 (Tex. App.––Fort Worth Mar. 17, 2011,
no pet.) (mem. op.).  To prevail on a FELA claim, a plaintiff must show that
the railroad did not use reasonable care when it could have reasonably foreseen
harm.  Union Pac., 85 S.W.3d at 165–66; Neloms, 2011 WL 944434,
at *2.  The defendant’s duty is “measured by what a reasonably prudent person
would anticipate as resulting from a particular condition.”  Union Pac.,
85 S.W.3d at 166 (quoting Gallick v. Balt. & Ohio R.R., 372 U.S.
108, 118, 83 S. Ct. 659, 665–66 (1963)).
The
test for causation under FELA is more relaxed than the common law standard.  CSX
Transp., Inc. v. McBride, 131 S. Ct. 2630, 2636 (2011); see Union Pac.,
85 S.W.3d at 168.  The test of causation under FELA is whether the railroad’s negligence
“played any part, even the slightest, in producing the injury or death for
which damages are sought.”  CSX Transp., Inc., 131 S. Ct. at 2636, 2644
(citing Rogers v. Mo. Pac. R.R., 352 U.S. 500, 506, 77 S. Ct. 443, 448
(1957)); Union Pac., 85 S.W.3d at 168; Neloms, 2011 WL 944434, at
*2.  Despite the lower burden under FELA, a plaintiff still bears the burden of
presenting evidence from which a jury could conclude the existence of a
probable or likely causal relationship as opposed to merely a possible one.  Abraham
v. Union Pac. R.R., 233 S.W.3d 13, 17 (Tex. App.––Houston [14th Dist.]
2007, pet. denied) (citing Edmonds v. Ill. Cent. Gulf R.R., 910 F.2d
1284, 1288 (5th Cir. 1990)), cert. denied, 522 U.S. 1312 (2008).  The
causal link between an event sued upon and the plaintiffs’ injuries must be
shown by competent evidence.  Abraham, 233 S.W.3d at 17.
Although
Nichols’s claim is pursuant to a federal statute, the trial court must follow
state procedure in determining the reliability of expert testimony.  Id. at
18; see Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406 (Tex.), cert.
denied, 525 U.S. 1017 (1998).  To be admissible into evidence, an expert
witness’s testimony must, among other things, be reliable.  E.I. du Pont de
Nemours & Co. v. Robinson, 923 S.W.2d 549, 565 (Tex. 1995).  The expert
must be qualified, and the testimony must be relevant and be based on a
reliable foundation.  Id. at 556.  Expert testimony is unreliable if (1)
it is not grounded in the methods and procedures of science and is thus no more
than subjective belief or unsupported speculation, or (2) there is too great an
analytical gap between the data upon which the expert relies and the opinion he
offers.  Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 800
(Tex. 2006).  The purpose of the reliability determination is not to decide
whether the expert’s conclusions are correct, but only whether the analysis
used to reach them is reliable.  Exxon Pipeline Co. v. Zwahr, 88 S.W.3d
623, 629 (Tex. 2002).
Evidence
Nichols
During
Nichols’s testimony, his attorney played a video that showed railroad workers
engaged in GOOME that was filmed for Burlington Northern (also a predecessor of
BNSF) in 1992.  Nichols testified that he did the same thing that the person in
the video did.  According to Nichols, the step down from the cars to the
ballast (the gravel on which the track sits) was “a good” two feet off the
ground.  Nichols stated that stepping onto ballast was not like stepping onto
flat ground and that “[y]ou could twist one way or another like stepping off on
a golf ball.”  Nichols said that he had never been hurt doing so, however. 
Nichols said that after stepping down, he had to take a few steps, depending on
how fast the cars had been moving.
Nichols
also testified from a 1992 report admitted into evidence; the report is from an
ergonomics manager at Burlington Northern, Bill Barbre.  For the report, Barbre
analyzed video recordings of workers engaged in GOOME and attempted to estimate
the total body forces that would occur during GOOME at different speeds. 
Nichols testified that he had stepped off moving cars at as much as ten miles
per hour, which is higher than the eight miles per hour maximum that Barbre
used for his calculations.[5]  Nichols testified from a
chart attached to the report that total forces on a body from getting off a
moving car at four miles per hour were 8.8 times a person’s body weight, at six
miles per hour were 11.2 times a person’s body weight, and at eight miles per
hour were fifteen times a person’s body weight.[6]  Barbre characterized the
total body forces of fifteen times a person’s body weight at eight miles per
hour as “extreme.”  For a two hundred pound man, this would amount to three
thousand pounds of total body force.
Although
the Santa Fe stopped GOOME in 1993, Nichols testified that the practice did not
cease in the Temple yard where he worked until 1995.  According to Nichols,
production slowed when the practice was stopped in 1995; he did not believe the
practice was allowed so long for the convenience of the workers but to speed up
production.  Nichols testified that although the Santa Fe Middle Division
issued a safety circular in 1988 stating that “[g]etting on or off moving
equipment should be avoided whenever possible,” the Temple yard was not
included in that division, and the Temple yard did not prohibit or discourage
GOOME until 1995.[7]
Lawrence Fleischer
Lawrence Fleischer, the BNSF corporate representative
and an ergonomist, testified that the only company document he could find regarding
why GOOME was stopped was a notice to employees from the Chairman, President,
and CEO Jerry Grinstein and the Executive Vice President of Operations Jack Chain
that the company (Burlington Northern at the time) was ceasing the practice of
GOOME for safety reasons.  The notice says that Burlington Northern is ceasing
the practice of GOOME because it is an inherently dangerous work practice.  But
Fleischer testified that GOOME is not inherently dangerous.  Fleischer was familiar
with an Association of American Railroads[8] study showing that during
1979–86, getting on and off equipment was the main cause of lost-time injuries
to railway workers.  However, Fleischer clarified that the report does not
specify whether the injuries were acute or cumulative trauma injuries.  Moreover,
Fleischer said that it is hard to tell whether a chart in the report showing
injuries occurring from mounting and dismounting equipment applies to moving or
stopped equipment, or both.
According
to Fleischer, the Barbre study was initiated to convince the railyard workers
of the wisdom of discontinuing GOOME.  Fleischer said that his problem with the
Barbre study was that Barbre did not take into account that the men getting on
and off moving railcars were still hanging onto the cars by their arms so that the
total body force would not be distributed solely on the lower body.[9] 
Fleischer testified that he spoke with Barbre, and all of the injuries that
were discussed in the report were acute, not cumulative trauma, injuries.  The
report states that Burlington Northern had a fifty to sixty percent reduction
in accidents from getting on or off equipment within a year after stopping
GOOME, which Fleischer says also supports his discussion with Barbre that the
events referred to in the report are acute trauma events.  Fleischer also agreed
that the report showed that forty-three accidents still occurred from GOOME
even after equipment was required to be stopped.
Fleischer
testified that as a trained ergonomist, when looking for cumulative trauma risk,
he would look for an action that would happen repetitively every thirty seconds
or so, like the actions performed by a machinist or factory worker.  According
to Fleischer, GOOME is not the type of high force activity that would cause
cumulative trauma.  However, he admitted that the cut-off level for just how
much force or repetition can cause injury is not known.  Fleischer also
admitted that as an ergonomist, not a doctor, he could not opine as to what
caused Nichols’s injuries.
Fleischer
testified that he had never seen a study concluding that GOOME causes
degenerative disc disease and that the Barbre report is the only study that has
tried to calculate the forces involved in GOOME.
          Dr.
Dan Eidman
          Dr.
Dan Eidman, an orthopedic surgeon who treated Nichols, testified by video
deposition.  Dr. Eidman performed a cervical fusion on Nichols’s neck in
November 2007, a lumbar fusion on his low back in June 2008, and surgery to
repair Nichols’s left rotator cuff in June 2009.  In Dr. Eidman’s opinion, the
injuries necessitating the surgeries were due to repetitive usage.  Nichols’s
counsel read a definition of cumulative trauma injuries from a 1989 article, Cumulative
Trauma Disorders, which Dr. Eidman agreed with:  “a collective term for
syndromes characterized by discomfort and impairment, disability or persistent
pain in joints, muscles, tendons and other soft tissues, with or without
physical manifestations.”  According to Dr. Eidman, this definition means that
a patient could have symptoms in more than one joint or area of the spine
without any “obvious physical findings” on examination.  He also stated that a
person with the syndrome may have an injury due to repetitive trauma that has
yet to manifest itself.  Dr. Eidman testified that cumulative trauma disorders
have been recognized “for many, many years” and that he had treated them since
the beginning of his practice.[10]  Dr. Eidman said that
cumulative trauma injuries are recognized by the United States government,
specifically NIOSH,[11] the National Institute for
Occupational Safety and Health.
Nichols’s
attorney questioned Dr. Eidman about a NIOSH article that describes how to
diagnose repetitive trauma injury.  Dr. Eidman answered that
[t]he article
indicates that part of the diagnosis would involve evaluating the patient for
objective findings on physical examination, subjective symptoms, as well, would
be important, and then it goes on to say examples of positive physical
findings, include positive maneuvers that are used quite often in our exams in
orthopedic examination surgery, as well as any localized physical findings,
such as redness or joint deformity or loss of motion.
Nichols’s
counsel also questioned Dr. Eidman about a 1997 article from the U.S. Department
of Health and Human Services, entitled Musculoskeletal Disorders and
Workplace Factors, a Critical Review of Evidence for Work-Related
Musculoskeletal Disorders of the Neck, Upper Extremity and Lower Back.[12] 
Dr. Eidman agreed with the following statement from the article:  “Musculoskeletal
Disorders and Workplace Factors found that there is evidence for a causal .
. . relationship between highly-repetitive work and . . . neck and shoulder
musculoskeletal disorders.”  He also agreed with a second statement from the
article:  “There is strong evidence that low-back disorders are associated with
work-related lifting and forceful movements.”
          Dr.
Eidman testified to treating football players with cumulative trauma injuries. 
He said he makes his diagnosis in these cases when the person has a history of
playing high school or college football, shows up five or ten years later with
complaints of neck, back, or shoulder pain, and an MRI shows a tear in the
cartilage, meniscus, or ligament.  According to Dr. Eidman, “most of those
patients do fairly well for several years after their initial injuries, until
such time that they’ve had enough activity to increase the symptoms and
aggravate those areas.”  He believed the cause of their injuries was the direct
contact and the “running and cutting” they do when playing.  Dr. Eidman said
such injuries are common in his practice.
Dr.
Eidman testified that he had also treated joggers with knee problems that he
attributed to constant vibration from running.  He had also treated people with
tennis elbow due to repetitive use of the elbow combined with wrong technique. 
Dr. Eidman testified that it is common for people who do heavy lifting and
manual labor to sustain back or neck injuries due to the repetitive nature of
their work and that he treats quite a few people like that.  Dr. Eidman agreed
that these people’s injuries do not manifest right away but may take quite a
while.
Dr.
Eidman testified that in his practice, he had treated about one hundred railroad
workers with cumulative trauma injuries to their neck or back or shoulder, which
he believed were a result of GOOME.  Dr. Eidman relied on the 1992 Barbre
report in formulating his opinion on causation.  According to Dr. Eidman, GOOME
at the speeds shown in the video would cause force to a person’s lumbar and
cervical spine region.  Dr. Eidman believed that if a person performed GOOME as
shown in the video twenty times a day, over time he would suffer an injury in
his lumbar and cervical spine.  Dr. Eidman testified that getting on equipment
could also cause a rotator cuff injury because the person would have to pull
his whole body weight to get on the train.  According to Barbre’s report, GOOME
at eight miles per hour could put more force on a person’s body than gymnastic vaulting. 
In Dr. Eidman’s opinion, Nichols’s specific activity as a switchman for BNSF––including
engaging in GOOME twenty to thirty-five times per day over an approximately
fourteen-year period––“would contribute to his symptoms and conditions in the neck
and back and shoulder.”  Dr. Eidman agreed that his opinion would be consistent
with the articles referenced in the deposition, which he said he relied on in
forming his opinion.
          On
cross-examination, Dr. Eidman admitted that he had not done any research or
studies on cumulative trauma injuries or on GOOME.  Dr. Eidman had not read any
of Barbre’s testimony on the 1992 study, nor had he heard or read anything Lonn
Hutcheson––the contractor who actually performed the study––has said about the
study.  Dr. Eidman did not know whether the Barbre study had been peer reviewed,
and he did not know of any peer-reviewed study concluding that GOOME causes
cumulative trauma injury.  But Dr. Eidman said that it was his understanding
that GOOME is generally accepted as causing cumulative trauma because the railroads
changed their policies allowing their employees to do it.  Dr. Eidman had no
opinion or basis for saying how much a person must GOOME before doing so will
cause cumulative injury to the neck or shoulders.  Dr. Eidman did not know the extent
to which the theory that GOOME can cause cumulative trauma injury had been
tested, and he agreed that other factors play a part in degenerative disc
disease, such as genetics, age, weight, and general physical condition.  Dr.
Eidman agreed that no studies show degenerative disc disease can result from
running and that, in fact, it is generally recognized that exercise such a
jogging has a preventative component for diseases such as degenerative disc
disease.  Dr. Eidman also agreed that he would have expected Nichols’s symptoms
to manifest themselves before thirteen years had passed.[13]
          Dr.
Eidman agreed that Nichols had a Type 2 curvature of his acromion,[14]
which could have predisposed him to the shoulder problem.  He also testified
that at least eighty-five percent of people thirty-five or forty and older have
degenerative disc disease.  He also agreed that there are a lot of unknowns
surrounding degenerative disc disease and that the relationship between
physical force and degenerative disc disease is unknown.  He agreed that there
is “zero literature” connecting GOOME to musculoskeletal disorders in general,
and degenerative disc disease specifically.  Dr. Eidman made no effort to
quantify the force to which Nichols was exposed and did not know just how much
force would be required to cause his injuries.
Dr.
Eidman testified on redirect that he saw probably a couple hundred people who
had worked at the railroad and who he thought had problems due to GOOME.  When
asked whether he knew of evidence that Nichols had any genetic history of
degenerative disc disease, he answered, “I don’t believe so.”  According to Dr.
Eidman, he would not expect a fifty-year old man to have the type of advanced
changes he saw in Nichols’s back; Dr. Eidman thinks GOOME accelerated the
changes.  Dr. Eidman did not think Nichols’s weight was a factor in his injury,
nor did he have any evidence that Nichols was a runner and could have injured
himself that way.
Dr.
Eidman testified that Nichols told him his symptoms were worse at work.  Nichols
had gone to work for the railroad as a young man and never had another job.  In
Dr. Eidman’s opinion, based on his experience as an orthopedic surgeon and on
the articles mentioned above, the forces to which Nichols was subjected during
GOOME are the cause of his injuries to his back, neck, and shoulders.  He
explained that the cause of cumulative trauma injury is the amount of force
plus the time the force is exerted.  Taking those two factors into account with
Nichols’s testimony, he was likely exposed to about thirty seconds of GOOME per
day.
          After
Nichols’s counsel rested, BNSF moved for a directed verdict on no-evidence of causation. 
The gist of BNSF’s argument is that no study supported Dr. Eidman’s testimony,
Dr. Eidman did not rule out other causes of Nichols’s injuries, and Dr.
Eidman’s opinion is merely based on his ipse dixit testimony.  The trial court
denied the motion.
Analysis
          To
uphold the jury’s verdict on causation, there must be some probative evidence
that work such as Nichols performed would play at least a small part in
bringing about his injuries.  See Huffman v. Union Pac. R.R., 675 F.3d
412, 425 (5th Cir. 2012).  Thus, we look for probative evidence that Nichols’s
degenerative disc disease is the kind of injury than can occur from the
railroad’s negligently allowing him to GOOME in the course of his work as a
switchman.  Id.
          In
Huffman, the plaintiff contended that his osteoarthritis in the knees
was caused by his work as a trainman, which included GOOME.  Id.  The Fifth
Circuit panel stated that “[a]t best, there was evidence that the kind of work
trainmen did, if not performed properly, could increase the chances of
musculoskeletal disorders.”  Id.  The fatal flaw in that case was that
there was no evidence listing osteoarthritis in the knees as a musculoskeletal
disorder that could occur from performing the type of work he did as a
trainman.[15]  Id.
          Here,
as in Huffman, there was probative evidence of the type of work Nichols
did and the type of injuries he has.  According to BNSF, Nichols was required
to also provide evidence of (1) epidemiological studies showing that mounting
and dismounting moving railway cars can cause degenerative disc disease and (2)
the amount of force Nichols himself experienced when getting on and off moving
railcars.
“Cumulative
trauma disorder refers not to one specific injury, but to numerous disorders
caused by the performance of repetitive work over a long period of time.”  Myers
v. Ill. Cent. R.R., 629 F.3d 639, 643 (7th Cir. 2010); Gutierrez v.
Excel Corp., 106 F.3d 683, 686 (5th Cir. 1997).  These types of disorders
result from wear and tear on the body, and they can be the product of many
factors.  Myers, 629 F.3d at 643; Gutierrez, 106 F.3d at 686.
In determining
causation of an injury through differential etiology,[16]
the doctor rules in all the potential causes of a patient’s ailment and then by
systematically ruling out causes that would not apply to the patient, the
physician arrives at what is the likely cause of the ailment.  Myers,
629 F.3d at 644.  There is nothing controversial about that methodology.  Id.;
Tamraz v. Lincoln Elec. Co., 620 F.3d 665, 673–74 (6th Cir. 2010), cert.
denied, 131 S. Ct. 2454 (2011).  The question of whether it is reliable under
Daubert is made on a case-by-case basis, focused on which potential
causes should be “ruled in” and which should be “ruled out.”  Myers, 629
F.3d at 644.  Calling something a “differential diagnosis” or “differential
etiology” does not by itself answer the reliability question but prompts three
more:  (1) Did the expert make an accurate diagnosis of the nature of the
disease? (2) Did the expert reliably rule in the possible causes of it? and (3)
Did the expert reliably rule out the rejected causes?  If the court answers
“no” to any of these questions, the court must exclude the ultimate conclusion
reached.  Tamraz, 620 F.3d at 674.
In a
FELA case involving lateral epicondylitis (an elbow injury), the First Circuit
held that the testimony of an orthopedic surgeon specializing in repetitive
stress injuries was reliable when the surgeon had treated the plaintiff, used
differential diagnosis to determine causation, had regularly diagnosed
repetitive stress injuries, and had treated about 100–150 cases of lateral
epicondylitis per year.  Granfield v. CSX Transp., Inc., 597 F.3d 474, 485–87
(1st Cir. 2010).  The court also held that the expert’s causation testimony was
sufficient to support the jury’s verdict for the plaintiff.  Id. at 487. 
Similar to this case, the expert had testified that it is well known that
repetitive motion causes lateral epicondylitis and that the amount of force and
repetition required before injury occurs is unknown.  Id. at 485.  In
addition, the expert in that case did not rely on peer-reviewed studies, which
the court concluded was not conclusive under Daubert.  Id. at 486
(“The mere fact of publication, or lack thereof, in a peer-reviewed journal is
not a determinative factor in assessing the scientific validity of a technique
or methodology on which an opinion is premised.”); see also Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579, 593, 113 S. Ct. 2786, 2797 (1993) (“Publication
(which is but one element of peer review) is not a sine qua non of
admissibility. . . .”).
We
believe this case is more similar to Granfield than Huffman.  Dr. Eidman
testified that as a thirty-year orthopedic surgeon, he treated many patients
with degenerative disc disease, which is caused by repetitious and forceful
movements.  He ruled out weight, genetics, other activity, and Nichols’s
general condition; he also testified that age itself was not a factor in that
he would not have expected to see the kind of injury he saw with Nichols from a
fifty-year-old man.  Thus, we conclude that Dr. Eidman’s experience in his
practice and the methodology he used to determine causation were sufficient to
render his expert opinion testimony reliable and also sufficient to sustain
Nichols’s burden of proving causation under the standard applicable to FELA
cases.[17]  See Granfield,
597 F.3d at 485–87; Hardyman v. Norfolk & W. Ry., 243 F.3d 255,
261–67 (6th Cir. 2001); see also Synar v. Union Pac. R.R., No.
12-99-00428-CV, 2001 WL 1263573, at *11 (Tex. App.––Tyler 2001, pet. denied)
(not designated for publication) (determining that doctors’ testimony that
ulnar neuropathy was caused by repetitive use of hands and arms in operating
hand brakes and switch equipment was sufficient to prove causation).  We
therefore overrule BNSF’s first issue.
Jury
Charge
BNSF
contends in its second issue that the trial court erred by refusing to include
the following instructions on general and specific causation in the jury
charge:
In order to establish
that exposure to getting on and off moving equipment caused [Nichols’s] back,
neck and/or shoulder conditions, Plaintiff must prove by reliable scientific
evidence that such cumulative exposure generally causes these conditions and
that his exposure specifically caused such conditions. . . .
 
In order to prove
specific causation to getting on and off moving equipment, Plaintiff must
exclude, with reasonable certainty, other plausible causes of his conditions
such as age, genetics, other activities, or no known cause. . . .
 
Plaintiff
must establish [Nichols’s] level of exposure using techniques subject to
objective, independent validation in the scientific community. He must also
prove that such exposure/dose was sufficient to cause his conditions. . . .
The
charge here was substantially similar to the charge recently reapproved by the
United States Supreme Court, as BNSF acknowledges in its reply brief.  See
CSX Transp., 131 S. Ct. at 2640–41.  Thus, we overrule its second issue.
Foreseeability
          In
its third issue, BNSF argues that there was no or insufficient evidence that
GOOME was a defective work practice or that it had a reasonable opportunity to
correct it before it caused injury to Nichols.  According to BNSF,
Because there is no evidence to this day that GOOME can
cause degenerative changes to the cervical or lumbar discs (or could cause a
rotator cuff tear over a decade later), [the Santa Fe] could not have known of
the possibility when Nichols worked as a switchman from 1979-1995.
Nichols’s
testimony that he was required to engage in GOOME is evidence that the railroad
was aware of the practice; thus, the disputed question is whether the railroad
knew or should have known that GOOME created a likelihood that an employee
could suffer injuries to the neck, back, and shoulder.
Reasonable
foreseeability of harm is an essential ingredient of a negligence action under
FELA.  CSX Transp., 131 S. Ct. at 2643.  The jury in such a case must be
asked whether the carrier failed to observe “that degree of care which people
of ordinary prudence and sagacity would use under the same or similar
circumstances.”  Id.  Reasonable foreseeability, then, depends on
whether the carrier had a reasonable ground to anticipate that a particular
condition would or might result in a mishap and injury.  Id.; Union
Pac., 85 S.W.3d at 166.  The test is whether the railroad was or should
have been aware of conditions which created a likelihood that the employee
would suffer the type of injury he did.  Rogers, 352 U.S. at 503, 77 S. Ct.
at 447; Union Pac., 85 S.W.3d at 166, 169.  However, once negligence is
proven, the carrier is liable for damages, regardless of whether the full
extent of the injury or the manner in which it occurred was probable or
foreseeable.  Rogers, 352 U.S. at 503, 77 S. Ct. at 447; Union Pac.,
85 S.W.3d at 166, 169.  In other words, “[t]he test of foreseeability does not
require that the negligent person should have been able to foresee the injury
in the precise form in which it in fact occurred.”  E.g., Green v.
River Terminal Ry., 763 F.2d 805, 808 (6th Cir. 1985).  Under FELA, “a
tortfeasor must compensate his victim for even the improbable or unexpectedly
severe consequences of his wrongful act.”  Gallick, 372 U.S. at 120–21, 83
S. Ct. at 667.
In
evidence was a December 1987 AAR Research Report, which shows that AAR was
researching how to reduce injuries in railroad workers.  The report states that
trainmen and yardmen suffered the most injuries and that one of the major
causes was “getting on an[d] off cars and locomotives.”  The report further
indicates that AAR was involved that year in providing ergonomic and safety
programs for railroads.  Specifically, one of the programs assisted in
redesigning jobs to minimize the chance for overexertion injuries.  This
program was primarily aimed at lifting activities, but was “not restricted to
lifting” and also applied to “lowering, pushing, and pulling tasks.”  The
report also states about railroad jobs in general that “[t]he chances for
injuries from over[]exertion are high in such jobs.”  The report also addresses
force and compression in the lower back as concerns.
Another
AAR study was also in evidence, An Ergonomic Investigation of Railroad Yard
Worker Tasks; it is undated, but it relies on 1986 and 1987 data.  A chart
attached to the report lists lower extremity injuries, upper extremity strains,
and back sprains as typical injury types for mounting and dismounting cars.  A
contributing factor to such injuries was listed as “[s]peed of train.”  That
study followed a small group of workers in one railyard, who experienced less
injuries from mounting and dismounting cars than had been reported nationwide. 
Even so, those workers reported “that they slipped and fell while mounting or
dismounting, suffering strains and sprains of the torso and lower extremities
as a result.”
Although
BNSF’s ergonomist testified that GOOME did not involve the kind of rapid
repetitive activity that he looked for in considering the cause of cumulative
trauma, the jury had evidence to rely on in determining that the railroad
should have known that GOOME caused a significant risk of injury to railyard
workers, specifically overexertion-type injuries.  That there are no studies
specifically linking GOOME and degenerative disc disease does not diminish the
evidence that the railroad industry was aware of the types of risks involved in
railyard work (and GOOME), that it was working on changing work methods to
minimize the occurrence of such injuries, and that those injuries were not
limited to acute injuries but included injuries from overexertion.  Cf.
Allenbaugh v. BNSF Ry., No. CV-09-3086-LRS, 2011 WL 2182430, at *4 (E.D.
Wash. June 6, 2011) (denying summary judgment motion because plaintiff produced
evidence of foreseeability sufficient to create a fact issue); Cook v. CSX
Transp., Inc., 557 F. Supp. 2d 1367, 1373–74 (M.D. Fl. 2008) (same).  We
overrule BNSF’s third issue.
Conclusion
Having overruled all three of BNSF’s issues,
we affirm the trial court’s judgment.
 
 
 
TERRIE LIVINGSTON
CHIEF JUSTICE
 
PANEL: 
LIVINGSTON,
C.J.; DAUPHINOT and WALKER, JJ.
 
DELIVERED:  June 21, 2012




[1]During the period relevant
to this suit, Nichols worked for the Atchison, Topeka & Santa Fe Railway
(the Santa Fe), which in 1995 became BNSF through merger.  Thus, all references
to Nichols’s employer are to BNSF unless stated otherwise.


[2]During 1983–85, Nichols
was furloughed and intermittently worked for the company’s bridges department
instead; he also attended engineer’s school, so he was not continuously working
as a switchman during the entire period.


[3]Sometimes, Nichols also
worked as a brakeman, which involved getting on and off moving railcars, but to
a much lesser extent.


[4]The final judgment award
includes $2,220 in court costs.


[5]The maximum speed at the
Temple yard where Nichols worked was ten miles per hour, so Nichols did not
GOOME at speeds higher than ten miles per hour.


[6]The chart also shows that
total body forces from getting off stopped equipment was 5.2 times a person’s
body weight.


[7]BNSF admitted into
evidence a 1993 rules pamphlet from the Santa Fe indicating that GOOME was
prohibited except as allowed by Operating Circular or in cases of emergency. 
According to Nichols, an Operating Circular either was or may have been issued
for the Temple yard extending the practice of GOOME there until 1995.


[8]Fleischer agreed that
Burlington Northern and the Santa Fe were both members of the AAR, and BNSF is
still a member.


[9]Later, however, Fleischer
testified that he was not sure whether the study took this fact into account.


[10]At the time of his
deposition, Dr. Eidman had been an orthopedic surgeon for thirty years.


[11]NIOSH is the federal
agency responsible for conducting research and making recommendations for the
prevention of work-related injury and illness and is part of the Centers for
Disease Control and Prevention.  Kuiper v. Givaudan, Inc., 602 F. Supp.
2d 1036, 1047 n.4 (N.D. Iowa 2009).


[12]Although the trial court
pre-admitted this article as an exhibit, it is not included in the reporter’s
record.  A note in the index states, “Defendant’s Exhibit 33-D was not tendered
to the Court Reporter at the time of trial, therefore, was not considered
during jury deliberation . . . .”


[13]Contrary to these
calculations, Nichols testified that he ceased work as a switchman in 1995, and
he first experienced neck pain in 2005.


[14]The acromion is “[t]he
lateral extension of the spine of the scapula [shoulder blade] that projects as
a broad flattened process overhanging the glenoid fossa [cavity in the
scapula].”  Stedman’s Medical Dictionary 19, 764, 1725 (28th ed. 2006).


[15]Judge Dennis dissented
from the majority opinion, concluding that the doctors’ testimony including
broad definitions of musculoskeletal disorders was sufficient to support the
jury’s verdict on causation grounds.  Huffman, 675 F.3d at 431 (Dennis,
J., dissenting).


[16]This term is often also
referred to as differential diagnosis.  Myers, 629 F.3d at 644.


[17]In contrast to the
doctors in Myers, Dr. Eidman was well aware of Nichols’s history and had
reviewed materials, such as the Barbre report and the video showing GOOME,
specifically related to the type of work Nichols performed.  629 F.3d at 645. 
Additionally, Dr. Eidman’s testimony is the type of testimony that was missing
in Lewis v. CSX Transp. Inc., 778 F. Supp. 2d 821 (S.D. Ohio 2011), in
which the district court granted summary judgment because of a lack of
scientific evidence, including studies, linking the plaintiff’s carpal tunnel
syndrome and his work on a ballast regulator.


