                             In the
    United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 04-1960
RICHARD J. SCHMITZ,
                                             Plaintiff-Appellant,
                                v.

CANADIAN PACIFIC RAILWAY COMPANY,
doing business as SOO LINE RAILROAD
COMPANY, a corporation,
                                            Defendant-Appellee.
                          ____________
            Appeal from the United States District Court
               for the Eastern District of Wisconsin.
             No. 00 C 628—J.P. Stadtmueller, Judge.
                          ____________
      ARGUED NOVEMBER 8, 2005—DECIDED JULY 20, 2006
                     ____________


    Before CUDAHY, KANNE, and SYKES, Circuit Judges.
  SYKES, Circuit Judge. Richard Schmitz, a train conductor
for Canadian Pacific Railway Company (“Canadian Pa-
cific”), was walking alongside the tracks late one night
inspecting his train’s brakes with a lantern when he
stepped into a hole and injured his leg. He sued Canadian
Pacific under the Federal Employers’ Liability Act
(“FELA”),1 alleging that Canadian Pacific negligently



1
  Section 1 of the Federal Employers’ Liability Act provides:
“Every common carrier by railroad while engaging in commerce
                                                (continued...)
2                                                       No. 04-1960

allowed trackside vegetation to grow so tall that he could
not see the hole. A jury found Canadian Pacific not negli-
gent.
  Schmitz raises jury instruction errors on appeal. He
argues that the district court improperly instructed the jury
on liability because it omitted an instruction, previously
agreed to, that a federal regulation required Canadian
Pacific to keep vegetation along the track under control. He
also claims the district court erred by instructing the jury
to deliberate on damages regardless of its answers to the
special verdict questions on liability and also by refusing to
give a cautionary instruction to deter juror speculation
about payment of medical and workers’ compensation
benefits.
  We reverse in part and affirm in part. A federal regula-
tion imposed a duty on the railroad to control trackside
vegetation, see 49 C.F.R. § 213.37(c), and the district court
should have so instructed the jury. Indeed, the judge
initially agreed to do so at the jury instructions conference,
but without notice changed his mind and removed the
instruction before charging the jury. Schmitz did not object,
but because he had no notice or opportunity to object to the
district court’s sua sponte changes to the jury instructions,
the lack of an objection does not preclude review. The
remaining claims of instructional error are without merit.
Instructing the jury to deliberate on damages regardless of


1
  (...continued)
between any of the several States . . . shall be liable in damages
to any person suffering injury while he is employed by such
carrier in such commerce, . . . for such injury . . . resulting in
whole or in part from the negligence of any of the officers, agents,
or employees of such carrier, or by reason of any defect or
insufficiency, due to its negligence, in its cars, engines, appliances,
machinery, track, roadbed, works, boats, wharves, or
other equipment.” 45 U.S.C. § 51.
No. 04-1960                                                      3

its findings on liability was not error. Also, a cautionary
instruction to deter juror speculation about medical and
workers’ compensation benefits was not required.


                       I. Background
  This appeal is about jury instructions, so only brief
reference to the evidence adduced at trial is necessary.
Schmitz testified that the hole into which he fell was
surrounded by “a lot of grass around the edges” that “kind
of camouflaged it.” Others who saw the hole, which was
about knee-deep, estimated that the grass surrounding it
was one to two feet tall. One worker who returned to the
site following the accident had trouble finding the hole
because the grass was so thick.
  At the jury instructions conference the judge agreed to
give two instructions that are at the heart of this ap-
peal. First, Schmitz sought a negligence instruction incorpo-
rating 49 C.F.R. § 213.37(c), which provides in relevant
part: “Vegetation on railroad property which is on or
immediately adjacent to roadbed shall be controlled [by the
railroad] so that it does not . . . [i]nterfere with railroad
employees performing normal trackside duties.” The judge
did not adopt Schmitz’s proposed instruction word for word
but agreed to instruct the jury that Schmitz was contending
Canadian Pacific was negligent “[i]n allowing vegetation to
interfere with normal track duties in violation of 49 C.F.R.
[§] 213.321(c),2 which provides in pertinent part” that the
railroad must control vegetation so that it does not interfere



2
  49 C.F.R. § 213.321(c) is identical to 49 C.F.R. § 213.37(c).
Section 213.37(c) applies to track Classes 1 through 5 and
§ 213.321(c) applies to tracks on which trains run at speeds faster
than those permitted on Class 5 tracks. See 49 C.F.R. § 213.1(b).
4                                               No. 04-1960

with those duties. Schmitz accepted the court’s proposed
modified instruction incorporating the federal regulation.
   Schmitz also requested this question on the special
verdict form: “Did [Canadian Pacific] violate 49 C.F.R.
§ 213.37 on [the day of the accident]?” The judge made no
formal ruling on that request during the instructions
conference. Finally, the judge agreed with Schmitz that
the jury should be instructed not to deliberate on damages
if it found for Canadian Pacific on liability.
   By the time the judge instructed the jury, however, he
had changed his mind on some of these matters. As to
liability, he instructed the jury only that Schmitz alleged
Canadian Pacific was negligent for letting vegetation
interfere with normal trackside duties, making no mention
that a federal regulation required Canadian Pacific to
control vegetation so that it would not interfere with
employees’ normal duties. Also, contrary to the judge’s
ruling at the instructions conference, the special verdict
form instructed the jurors to answer the damages questions
regardless of how they answered the prior questions on
liability.
  After the jury retired to deliberate, the judge ex-
plained his change of mind. He stated that 49 C.F.R.
§ 213.37(c) did not create an absolute duty for the railroad
to keep the trackside free of vegetation for Schmitz’s sake.
“[M]ore importantly,” the judge continued, “there was no
cause of action or pleading referenced in Mr. Schmitz’[s]
complaint suggesting that there was a violation of this
particular provision.” Regarding the special verdict instruc-
tions on damages, the court noted that it was “consistent
with this and other courts in our district in personal injury
cases [to] ask[ ] the jury to determine damages irrespective
of how they answered any of the negligence or causation
questions.”
  During deliberations the jury sent a note to the judge
asking whether Schmitz had received any “medical or
No. 04-1960                                                5

worker’s comp payments.” Schmitz asked the court to
instruct the jurors that he was not eligible to collect work-
ers’ compensation—FELA was his only means of recovery.
Instead, the judge instructed the jury that the matters
addressed in its question were “simply not before the court
or the jury.”
  The jury returned a verdict finding Canadian Pacific not
negligent. The jury also set Schmitz’s damages at $15,750.
Schmitz moved for a new trial, arguing that the district
court erred by not instructing the jury about 49 C.F.R.
§ 213.37. Schmitz also asserted that the court’s response to
the jury’s question about medical and workers’ compensa-
tion benefits was inadequate. The district court denied
Schmitz’s motion, holding that Schmitz could not use the
federal regulation to support a negligence per se theory.
Under traditional negligence per se principles, a statute
or regulation defines a defendant’s duty when (among other
things) the statute or regulation was designed to protect
against the type of harm at issue. See generally RESTATE-
MENT (SECOND) OF TORTS § 286 (1965). The regulation in
question, the district court concluded, was designed to
promote safe roadbeds for trains, not safe walkways for
employees. The court also rejected Schmitz’s argument that
a more specific cautionary instruction was necessary in
response to the jury’s question about medical and workers’
compensation benefits.


                      II. Discussion
  All three issues on appeal concern jury instructions,
which we review de novo, as a whole, to be sure they
correctly and completely informed the jury of the law. Byrd
v. Ill. Dep’t of Pub. Health, 423 F.3d 696, 705 (7th Cir.
2005); Calhoun v. Ramsey, 408 F.3d 375, 379 (7th Cir.
2005). We defer to the district court’s choice of language in
the instructions so long as the law is completely and
6                                                No. 04-1960

accurately conveyed. Latino Food Marketers, LLC v. Olé
Mexican Foods, Inc., 407 F.3d 876, 880 (7th Cir. 2005). If it
is not, we must consider whether the shortcomings confused
the jury and prejudiced the objecting party. Byrd, 423 F.3d
at 705. Instructions that are so misleading as to prejudice
the appellant require reversal. Id.


A. 49 C.F.R. § 213.37
  Schmitz first argues that the district court erred when it
refused to instruct the jury that 49 C.F.R. § 213.37(c)
requires the railroad to control trackside vegetation so
that it does not interfere with railroad employees perform-
ing normal trackside duties. The judge initially agreed
during the instructions conference to give an instruction
incorporating the federal regulation but then changed
course and removed any reference to 49 C.F.R. § 213.37(c)
from the instructions before charging the jury. Explain-
ing his decision later, the judge said he decided not to
give the instruction in part because Schmitz did not plead
a violation of the regulation, and Canadian Pacific now
reasserts that rationale on appeal. We do not know why;
this court has repeatedly reiterated that plaintiffs in federal
court need not plead specific facts or legal theories in their
complaints. See, e.g., Sanderson v. Culligan Int’l Co., 415
F.3d 620, 622 (7th Cir. 2005). A complaint requires only a
short and plain statement of the plaintiff’s claim. FED. R.
CIV. P. 8(a); Kolupa v. Roselle Park Dist., 438 F.3d 713, 714
(7th Cir. 2006). Schmitz was not required to allege that
Canadian Pacific violated the duty created by 49 C.F.R. §
213.37(c). Kolupa, 438 F.3d at 714 (“Federal complaints
plead claims rather than facts.”).
  Schmitz’s failure to plead a violation of 49 C.F.R.
§ 213.37(c) was not the only reason the district court
ultimately refused to instruct the jury on the federal
regulation. The court also believed the regulation did not
No. 04-1960                                                  7

create a duty for Canadian Pacific or create liability under a
negligence per se regime. The court concluded that the
regulation was designed to promote safe roadbeds, not safe
working conditions for railroad employees.
  In a typical negligence per se case, a violation of a statute
can be a basis for liability when the statute is intended to
protect against the specific type of harm sustained by the
plaintiff, see RESTATEMENT (SECOND) OF TORTS § 286, but
cases brought under FELA are not typical negligence per se
cases. Kernan v. American Dredging Co., 355 U.S. 426
(1958), which involved a seaman killed in a fire that started
when a navigation regulation was violated, rejected applica-
tion of typical negligence per se principles in FELA cases,
concluding that Congress intended the statute to provide
broad recovery. Id. at 432. The Supreme Court held in
Kernan that when an employer governed by FELA violates
a statutory or regulatory standard and its employee is
injured as a result, the employer may be held liable under
FELA—even if the injury is not the type against which the
statute was meant to protect.
    [T]he theory of the FELA is that where the employer’s
    conduct falls short of the high standard required of him
    by this Act, and his fault, in whole or in part, causes
    injury, liability ensues. And this result follows whether
    the fault is a violation of a statutory duty or the more
    general duty of acting with care, for the employer owes
    the employee, as much as the duty of acting with care,
    the duty of complying with his statutory obligations.
Id. at 438-39.
  Canadian Pacific suggests that Kernan is limited to FELA
cases based on violations of the Safety Appliance Act or the
Boiler Inspection Act, but this argument is meritless. Before
Kernan, the Supreme Court had held in cases involving the
Safety Appliance Act and the Boiler Inspection Act that a
violation of either statute creates liability under FELA if
8                                                  No. 04-1960

the violation causes injury. Kernan, 355 U.S. at 432-33.
Kernan did not involve a violation of either the Safety
Appliance Act or the Boiler Inspection Act; the case in-
volved a violation of a navigation regulation. Id. at 436. The
Court in Kernan extended the FELA liability principles
established in the Safety Appliance Act and Boiler Inspec-
tion Act line of cases, rejecting the argument that those
principles should be limited to cases involving violations of
those two Acts. Id. The Court concluded that because FELA
is the basis of liability, a specific link between the type of
harm sustained and the specific statute or regulation
alleged to have been violated is not necessary. Id. at 438-39.
  Kernan thus established a bright-line rule that a FELA
employer’s violation of a statutory or regulatory duty
gives rise to FELA liability for a resulting employee
injury, regardless of whether the statute or regulation was
meant to protect against the particular harm sustained by
the employee. “In a[ ] FELA action, the violation of a
statute or regulation . . . automatically constitutes a breach
of the employer’s duty and negligence per se and will result
in liability if the violation contributed in fact to the plaintiff
                                                                ’s
injury.” Walden v. Ill. Cent. Gulf R.R., 975 F.2d 361, 364
(7th Cir. 1992).
  So the law is in Schmitz’s favor and the district court did
not instruct the jury correctly. But Schmitz never cited
Kernan or Walden in the district court. Instead, he simply
requested a jury instruction that incorporated Canadian
Pacific’s duty under 49 C.F.R. § 213.37. As applicable to this
case, Rule 51 of the Federal Rules of Civil Procedure
forecloses a party from claiming instructional error unless
he properly objects to the giving or withholding of a re-
quested instruction; proper objection under Rule 51 requires
that specific grounds be asserted. See Schobert v. Ill. Dep’t
of Transp., 304 F.3d 725, 729 (7th Cir. 2002); Hebron v.
Touhy, 18 F.3d 421, 424 (7th Cir. 1994). Review is not
No. 04-1960                                                    9

precluded in this instance, however, because Schmitz was
never given notice or an opportunity to object to the jury
instructions that were ultimately given.
  When this case was tried, Rule 51 required the district
court to inform the parties of its proposed instructions
before closing arguments and provide an opportunity to
object on the record and outside the jury’s presence before
the jury retired for deliberations. FED. R. CIV. P. 51 (2003)
(“The court shall inform counsel of its proposed action upon
the [instruction] requests prior to their arguments to the
jury. . . . Opportunity shall be given to make the objection
out of the hearing of the jury.”). Here, the district court
initially agreed to give most of Schmitz’s liability instruc-
tion—including the federal regulation—during
the instructions conference. At some point after the confer-
ence, however, the judge changed his mind. Without
notifying the parties, the judge returned to the bench and
instructed the jury using different instructions that con-
tained no mention of the regulation. This was contrary to
the requirements of Rule 51. Schmitz relied on the court’s
previously announced agreement to instruct the jury on the
federal regulation and cannot be faulted for failing to lodge
a specific objection when no notice of the court’s action or
opportunity to object was provided. Accordingly, while
Schmitz should have supported his proposed instruction
with citation to authority in the first place, the judge was
required to inform the parties of his sua sponte alteration
of the previously agreed-to instructions and provide an
opportunity to object. Under these circumstances we will
not consider review foreclosed, especially since Schmitz so
clearly pressed for an instruction and special verdict
question incorporating 49 C.F.R. § 213.37.3


3
  This case was tried in 2003, just before certain amendments
to Rule 51 took effect. Effective December 1, 2003, Rule 51
                                                   (continued...)
10                                                    No. 04-1960

   There can be little doubt that the omission of an instruc-
tion on 49 C.F.R. § 213.37 prejudiced Schmitz’s case.
Canadian Pacific argues that the jury still heard the
essence of Schmitz’s claim regarding the regulation—that
Schmitz alleged the railroad was negligent because it
did not keep the vegetation trimmed. But there is a world of
difference between telling the jury that Schmitz alleged the
railroad should have taken a particular precaution and
telling the jury that federal law required the railroad to
take that very precaution. By not instructing the jury on the
federal regulation, the district judge left it up to the jury to
decide whether the railroad had a duty to keep the vegeta-
tion trimmed. The regulation answers that question in the
affirmative—the railroad was required under federal law to
keep the vegetation trimmed. The jury should have been
deciding only whether the railroad violated the regulation
and whether the violation was a cause of Schmitz’s injury.
Schmitz’s case was prejudiced by the district court’s sua
sponte withdrawal of the instruction on the federal regula-
tion, and the case must be remanded for a new trial on
liability.




3
  (...continued)
provides that the district court “must inform the parties of its
proposed instructions and proposed action on the [instruction]
requests before instructing the jury” and “must give the parties an
opportunity to object on the record and out of the jury’s hearing.”
FED. R. CIV. P. 51(b)(1) & (2) (2004). The rule was also amended to
specify that “[a]n objection is timely if . . . a party that has not
been informed of an instruction or action on a request before [the
instructions are given] objects promptly after learning that the
instruction or request will be, or has been, given or refused.” FED.
R. CIV. P. 51(c)(2)(B) (2004). Finally, we note that the 2003
amendments to Rule 51 provide for plain error review of forfeited
instructional error.
No. 04-1960                                                 11

B. Deliberation on Damages
  Schmitz also argues that the jury instructions on damages
were inconsistent and prejudicial. The judge initially agreed
with Schmitz’s request that the jury be instructed not to
answer the damages questions on the special verdict if it
found for Canadian Pacific on liability. As with the instruc-
tion on 49 C.F.R. § 213.37(c), the judge later changed his
mind, and the instructions actually given to the jury were
internally inconsistent on this point. The court instructed
the jury not to needlessly answer questions and also
cautioned jurors not to duplicate damages calculations if it
became necessary for the jury to answer the damages
questions in the special verdict. The special verdict form,
however, directed the jury to answer the questions on
damages “[r]egardless of how you answered any of the
previous questions.” Schmitz argues these instructions
confused the jury, requiring a new trial on damages.
  Schmitz did not make this argument in his postverdict
motion; in any event, it is meritless. The inconsistency
between the instructions and the special verdict form was
not prejudicial. Prejudice in this context could result only if
the jury set damages at an amount less than it other-
wise might have based on the evidence, and Schmitz has
not specifically challenged the actual amount the jury
awarded. Instead, he makes a categorical argument that
when a jury is told to answer damages questions regardless
of how it answers liability questions, there is a “reasonable
likelihood that there would not be full and fair deliberations
on damages.” Schmitz cites no authority for this speculative
argument.
   We note that this circuit’s current pattern jury instruc-
tions (adopted after this case was tried) recommend that
trial judges instruct jurors not to deliberate on damages
if they find for the defendant on liability. See SEVENTH
CIRCUIT PATTERN JURY INSTRUCTION 1.31 (“If you decide for
12                                               No. 04-1960

the defendant[s] on liability, then you should not con-
sider the question of damages.”). But the matter is en-
trusted to the discretion of the trial judge, and the practice
in other jurisdictions is the opposite. See, e.g., Wisconsin
Jury Instructions—Civil, 1700 (“You must answer the
damage question[s] no matter how you answered any of the
previous questions in the verdict.”). Schmitz is essentially
arguing that requiring a jury to deliberate on damages
regardless of how it answers special verdict questions on
liability is prejudicial per se, and there is no support for
that proposition.


C. Jury Question About Workers’ Compensation
  Finally, Schmitz contends the district court should have
given a cautionary instruction in response to the jury’s
question about whether he received medical or workers’
compensation benefits for his injury. The court responded
that such matters were “simply not before the court or the
jury.” Schmitz argues this admonishment was not adequate
to deter the jury from speculating and maintains that the
district court should have specifically instructed the jury
that he could not recover workers’ compensation for his
injuries. He analogizes to an instruction approved in
Norfolk & Western Railway Co. v. Liepelt, 444 U.S. 490
(1980), informing juries that plaintiffs are not taxed on
personal injury awards. Id. at 498. In Liepelt, the Supreme
Court reasoned that such an instruction would do no harm
and could clarify doubt about the taxation of personal injury
damages awards. Id. The Court concluded that an income
tax instruction would prevent the plaintiff from receiving
inflated damages based on speculation about income
taxation and would not run the risk of decreasing the
amount an injured plaintiff is entitled to receive.
  This case is nothing like Liepelt. A jury instruction that
Schmitz had no means of recovery other than FELA
No. 04-1960                                               13

could have prejudiced Canadian Pacific if the jury was
moved to find for Schmitz out of concern that his injury
might otherwise go uncompensated. Other circuits have
held such an instruction to be inappropriate, see Stillman
v. Norfolk & W. Ry. Co., 811 F.2d 834, 838 (4th Cir. 1987);
Weinell v. McKeesport Connecting R.R. Co., 411 F.2d 510,
512 (3d Cir. 1969), and we agree. The district court properly
declined to instruct the jury that Schmitz was ineligible for
workers’ compensation payments. The court’s admonition
that the issues of medical and workers’ compensation
benefits were “simply not before the court or the jury” was
appropriate.
  For the foregoing reasons, the judgment of the district
court is REVERSED in part, AFFIRMED in part, and the case is
REMANDED with instructions for a new trial on liability only.

A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—7-20-06
