                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2005-CA-00206-SCT

CANADIAN NATIONAL/ILLINOIS CENTRAL
RAILROAD COMPANY, A CORPORATION

v.

JAMES WESLEY HALL

DATE OF JUDGMENT:                          10/22/2004
TRIAL JUDGE:                               HON. WINSTON L. KIDD
COURT FROM WHICH APPEALED:                 HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                   CHARLES HENRY RUSSELL, III
                                           CHARLES T. OZIER
ATTORNEYS FOR APPELLEE:                    ROBERT M. FREY
                                           CHRISTOPHER ALLEN KEITH
NATURE OF THE CASE:                        CIVIL - PERSONAL INJURY
DISPOSITION:                               AFFIRMED - 04/12/2007
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       DICKINSON, JUSTICE, FOR THE COURT:

¶1.    This is a claim brought by an injured railroad employee pursuant to the Federal

Employer’s Liability Act (“FELA”), 45 U.S.C. § 51 (1939). A Hinds County jury found the

railroad liable for damages in the amount of $1,501,907.97, and the railroad timely perfected

an appeal.

                   BACKGROUND FACTS AND PROCEEDINGS

¶2.    On August 2, 2000, James Wesley Hall was working for his employer, Canadian

National/Illinois Central Railroad Company (“Illinois Central”), as part of a four-man

railroad switching crew, sorting out railroad cars as they arrived in the Jackson Yard (“the
Yard”). Hall had been doing this job for 39 years. Although Illinois Central had safety rule

T-740 in effect, which stated that employees must not mount moving locomotives except

when necessary, Hall and his co-workers testified that sorting the cars required them to

mount (that is, step or jump onto) moving equipment regularly. On this day, the Yard was

muddy as a result of periodic rain. Hall testified that this mud was greasy and slippery due

to its mixture with rotting feed and oil which regularly leaked from the passing trains. The

slippery mud was neither covered with ballast, nor did the Illinois Central provide any

facilities for the employees to wash the mixture off their boots. Hall testified that he and

other employees complained about the slippery conditions of the Yard, but Illinois Central

did nothing to alleviate the condition.

¶3.    In addition to rule T-740, Illinois Central had a general safety rule in effect which

directed employees to use their discretion in determining whether or not an activity was safe.

The rule further instructed employees to take the time to work safely on the job. Illinois

Central issued Hall and other crew members handheld radio devices, which could be used

to contact one another or notify an engineer that a crew member was going to mount the

moving locomotive, but this was not required. Although there was some testimony that other

employees used the radio devices to stop or slow a locomotive in order to get on, it is

undisputed that on this occasion Hall did not radio the engineer to stop or slow the

locomotive so that he could step aboard.




                                              2
¶4.    Although Hall had successfully mounted a moving locomotive thousands of times a

year during his 39-year career, on this occasion his foot slipped off the moving locomotive,

causing him to fall and sustain serious leg injuries.1

¶5.    Hall filed suit pursuant to FELA, claiming that Illinois Central failed to provide him

with a reasonably safe work environment. At the close of trial, the jury returned a verdict

in favor of Hall in the amount of $1,501,907.97, with no reduction for contributory

negligence on the part of Hall. After being denied relief through post-trial motions, Illinois

Central appealed.

                                            ANALYSIS

¶6.    Illinois Central raises seven issues on appeal, which we have consolidated into five.

Because Illinois Central seeks reversal of a jury verdict, we must review all factual issues in

the light most favorable to and supportive of the verdict. See Henson v. Roberts, 679 So. 2d

1041, 1045 (Miss. 1996) (citing Wells Fargo Armored Serv. Corp., 543 So. 2d 154, 157

(Miss. 1989).




       1
         Illinois Central and the dissent describe Hall’s injury as “a broken leg.” Hall points out that
his injury was much more serious than indicated by Illinois Central and the dissent. Hall states that
“both bones in the upper part of [his] leg were ‘crushed;’ [he] was hospitalized for seventeen days,
during which time they ‘stretched’ his leg out and operated on it, twice, installing two pins the first
time and cutting bone the second time.” Hall was unable to work and that a year later he had to
undergo a third surgery. Hall’s doctors have opined that he will eventually have to undergo a fourth
surgery to replace his knee.

                                                   3
                                 I. POST-TRIAL MOTIONS

¶7.    The first issue is whether the trial court erred in denying Illinois Central’s post-trial

motions. At the close of Hall’s case-in-chief, Illinois Central moved for a directed verdict,

arguing that Hall failed to prove his prima facie case of liability under FELA. The motion

was denied by the trial court. Following the entry of judgment upon the jury verdict, Illinois

Central filled a motion for a judgment not withstanding the verdict, or in the alternative for

a new trial or remittitur. This motion was also denied by the trial court. On appeal, Illinois

Central argues that the trial court erred in denying its post-trial motions, which we shall

separately review.

                                                  A.

¶8.    At the close of Hall’s case-in-chief, Illinois Central moved for a directed verdict

arguing that Hall failed to meet his burden of proof under FELA. Illinois Central argued that

Hall’s four allegations of negligence 2 against Illinois Central were not supported by the

evidence.    The trial court granted the directed verdict on Hall’s claim of inadequate

locomotive maintenance and inspection, but denied the motion as to the other claims.

¶9.    Motions for a directed verdict are provided by the rules of civil procedure to allow one

party to challenge the legal sufficiency of the other party’s case. Miss. R. Civ. P. 50 (a). A



       2
          The four allegations referred to by Illinois Central during its motion for a directed verdict
were each of the allegations made in Hall’s interrogatory answers. In his interrogatory answers, Hall
alleged that Illinois Central violated the FELA by: (1) requiring employees to mount moving
railroad engines; (2) requiring employees to mount moving railroad equipment in bad weather
conditions; (3) negligently allowing debris, oil, and other chemical substances to accumulate in the
walkways; and (4) failing to properly maintain, inspect, and repair the locomotive engine.

                                                  4
motion for a directed verdict is considered by the court before the verdict is rendered or final

judgment is entered. White v. Stewman, 932 So. 2d 27, 32 (Miss. 2006). This Court

conducts a de novo review of a trial court’s grant or denial of a motion for a directed verdict.

Entergy Miss. Inc. v. Bolden, 854 So. 2d 1051, 1055 (Miss. 2003). Because the evidence

must be considered in the light most favorable to the non-movant, Hall is entitled to the

benefit of all favorable inferences that may be reasonably drawn from the evidence

presented. Id. If there is “substantial evidence in support of the verdict, that is, evidence of

such quality and weight that reasonable and fair minded jurors in the exercise of impartial

judgment might have reached different conclusions, affirmance is required.” Cmty. Bank

v. Courtney, 884 So. 2d 767, 772 (Miss. 2004). Therefore, in order to determine whether the

motion for a directed verdict was properly denied, we must address whether Hall put on

sufficient evidence during his case-in-chief to create a question of fact with which reasonable

jurors could disagree.

¶10.   Hall brought his claim against Illinois Central under FELA. FELA provides in

pertinent part that:

       every common carrier by railroad while engaging in [interstate] commerce .
       . . shall be liable for damages to any person suffering injury while he is
       employed by such carrier in such commerce . . . 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. The United States Court of Appeals for the Fifth Circuit has stated that “[t]o

prevail under the Act, a plaintiff must prove that (1) the defendant is a common carrier by

                                               5
railroad engaged in interstate commerce; (2) he was employed by the defendant with duties

advancing such commerce; (3) his injuries were sustained while he was so employed; and

(4) his injuries resulted from the defendant’s negligence.” Smith v. Med. & Surgical Clinic

Ass’n, 118 F.3d 416, 419 (5th Cir. 1997).

¶11.     At issue in this case is whether Hall’s injuries resulted from Illinois Central’s

negligence or, more specifically, whether Hall proved that Illinois Central’s negligence was

the cause of his injuries.

¶12.     Illinois Central argues that in order to recover under FELA, Hall must prove the

traditional common law elements of a negligence cause of action, i.e. duty, breach, causation

and damages. Illinois Central further argues that its duty to Hall under FELA was “to use

reasonable care and prudence so that the work place and the appliances furnished are

reasonably suitable and safe for the purpose and in the circumstances in which they are to be

used.”

¶13.     The United States Supreme Court has established that FELA supplants an employer’s

common law duty with a “far more drastic duty of paying damages for injury or death at

work due in whole or in part to the employer’s negligence.” Rogers v. Missouri Pac. R.R.

Co., 352 U.S. 500, 507–08; 77 S. Ct. 443, 449; 1 L. Ed. 2d 493, 500 (1957). Under the

statute, the plaintiff’s burden of proving causation is significantly relaxed compared to the

burden in an ordinary negligence action. Consolidated Rail Corp. v. Gottshall, 512 U.S.

532, 543; 114 S. Ct. 2396, 2404; 129 L. Ed. 2d 427 (1994). The question is “whether



                                             6
negligence of the employer played any part, however small, in the injury or death which is

the subject of the suit.” Rogers, 352 U.S. at 508.

¶14.   In this case, the jury considered Hall’s claim that Illinois Central failed to provide a

reasonably safe work environment by (1) allowing employees to mount moving equipment;

(2) allowing Hall to mount moving equipment when it had been raining; and (3) allowing the

Yard to accumulate mud and oil on its walkways. 3 In support of its motion for a directed

verdict, Illinois Central argued that Hall failed to prove his work environment was not

reasonably safe, as required under FELA. However, giving Hall the benefit of all favorable

inferences that may be reasonably drawn from the evidence, and considering the relaxed

burden of proving causation, we find that the trial court did not err in denying Illinois

Central’s motion for a directed verdict.

¶15.   Hall’s evidence sufficiently created a question of fact as to whether Illinois Central

failed to provide a reasonably safe work environment. Hall testified that on the day of his

injury, he was acting in accordance with his training and in compliance with Illinois Central’s

safety rules, which required him to mount moving locomotives. Furthermore, William

“Bubba” Kearn, (“Kearn”) Hall’s co-worker, testified that it was part of his job at Illinois

Central to mount moving locomotives. As to Hall’s first claim of negligence, concerning

Illinois Central’s practice of allowing employees to mount moving equipment, Hall’s expert,

Dennis Berquist (“Berquist”), testified that Illinois Central was negligent in maintaining


       3
        Hall failed to put on any evidence with regard to his claim that Illinois Central failed to
maintain the locomotive, therefore, the trial court granted a directed verdict as to this claim.

                                                7
safety rules which allowed its employees to mount and dismount moving locomotives.

Berquist further testified that a majority of the major railroads had enacted safety rules

prohibiting the mounting and dismounting of moving locomotives due to the dangers

involved and the high number of accidents occurring during such activity.

¶16.   Hall testified in support of his second claim that he was required to mount moving

locomotives in the rain, and that the rain caused a slippery mud to form in the Yard, which

accumulated on the workers’ boots. Kearn also testified to the same. Sufficient testimony

was also presented regarding Hall’s third claim. Hall and Kearn both testified as to the

slippery conditions which formed on the walkways in the Yard. Further testimony indicated

that complaints were made to the Railroad regarding these slippery conditions, but nothing

was done to remedy the potential hazzard. Additionally, photographs of the walkways were

also admitted into evidence.

¶17.   Taking into consideration the evidence presented during Hall’s case-in-chief, we find

that there was enough evidence to create a question of fact with regard to Illinois Central’s

alleged negligence. Therefore, we find that the trial court did not err in denying Illinois

Central’s motion for a directed verdict.

                                                B.

¶18.   Illinois Central further argues that the trial court erred in denying its motion for a

J.N.O.V., or in the alternative a new trial. Similar to its claim that it was entitled to a directed

verdict, Illinois Central argues that the evidence presented did not establish liability against

it, and, therefore, the jury verdict should be overturned. A motion for a J.N.O.V. tests the

                                                 8
sufficiency of the evidence, while a motion for a new trial test the weight of the evidence.

Bush v. State, 895 So. 2d 836, 843–44 (Miss. 2005).

¶19.   Although similar to a motion for a directed verdict, a motion for J.N.O.V. allows the

trial judge an opportunity to set aside the jury’s verdict and enter a judgment as a matter of

law. Miss. R. Civ. P. 50 (b). Our standard for review of a denial of a motion for J.N.O.V.

is the same as that for motions for a directed verdict. The evidence is considered “in the light

most favorable to the appellee, giving the appellee the benefit of all reasonable inferences

that may reasonably be drawn from the evidence.” Miss. Transp. Comm’n v. SCI, Inc., 717

So. 2d 332, 338 (Miss. 1998). If there is substantial evidence in support of the verdict,

affirmance is required. Id.

¶20.   Illinois Central focuses its argument on Hall’s admission during cross-examination

that he did not know what caused his foot to slip, and on Berquist’s testimony that Illinois

Central violated industry standards by allowing its employees to mount moving locomotives.

More specifically, Illinois Central argues that Hall’s admission was fatal to his claims that

Illinois Central was negligent in allowing employees to mount moving equipment in the rain

and in maintaining slippery and unsafe walkways. It further claims that Berquist’s testimony

was insufficient to establish either that Illinois Central violated industry customs and

standards, or that the practice of mounting moving equipment could not be done in a

reasonably safe manner. Therefore, Illinois Central asks this Court to either render a verdict

in its favor on all of Hall’s claims, or remand the case for a new trial.



                                               9
¶21.   Hall admitted during cross-examination that he was speculating as to whether his

boots contained the slippery substance at the time of the accident. This admission, however,

is not fatal to Hall’s claim. Evidence in the record clearly established that, on the day of the

accident, it had been raining and the muddy substance was on the ground. The evidence

further established that Hall was walking in the Yard during this period of time, and that

there was no facility to clean his boots. These facts created sufficient circumstantial evidence

for the jury to find that Hall’s boots indeed had mud on them at the time of the accident.

¶22.   Furthermore, a party’s admission that he or she does not know whether a particular

fact is true is far different from an admission that the fact is not true. Our rules of civil

procedure employ only one device whereby a jury is required to accept as true or false a

particular matter. That is, where a party admits a matter in response to a request for

admissions, that matter is “conclusively established,” and the judge will instruct the jury as

such. See Miss. Rule Civ. Pro. 36 (b). That is not the case here.

¶23.   Furthermore, the dissent fails to fully appreciate the testimony of Chad Bishop, Hall’s

co-worker who witnessed the accident. The dissent states that Bishop “testified he didn’t

recall seeing any mud, limestone, or other slippery condition on the soles of Hall’s boots.”

Bishop, however, when asked whether he had the opportunity to observe Mr. Hall’s boots

while he was lying on the ground, answered, “Not really. I saw his boots but I didn’t really

observe them.”




                                              10
¶24.   Thus, the critical question is not whether Hall was personally aware of the mud on his

boots, but rather whether, in viewing the record as a whole, there was sufficient evidence

presented to allow a reasonable juror to conclude that Illinois Central was negligent.

¶25.   In answering this question, our analysis is identical to the above analysis regarding

the denial of the motion for a directed verdict. Illinois Central does not claim that any

evidence or testimony produced during its case-in-chief caused Hall’s claims to fail. Rather,

Illinois Central focuses on the testimony and evidence produced during Hall’s case-in-chief.

Therefore, finding it unnecessary to re-analyze the evidence presented in support of Hall’s

claims, we find that, as to his claim of negligence, Hall produced sufficient evidence for the

jury to consider, and the trial court did not err in denying the motion.

                                              C.

¶26.   With regard to motions for a new trial, this Court has held:

       In contrast to judgments as a matter of law, the motion for a new trial exists for
       an entirely different purpose. Accordingly, a new trial becomes appropriate
       when a trial court determines that error within the trial mechanism itself has
       caused a legally incorrect or unjust verdict to be rendered. The motion for a
       new trial affords the trial courts with an alternative to a grant of a JNOV, and
       provides judges with the opportunity to remedy trial error before an appeal is
       commenced. Whether jury error or otherwise, our law has long recognized the
       importance of this remedial device.

White, 932 So. 2d at 33. Trial courts have the authority to set aside a jury verdict when the

verdict is contrary to the substantial weight of the evidence, but if the jury verdict is

supported by the substantial weight of evidence, it should not be set aside. Id. Cases arising

under FELA are to be left to the jury, and a jury’s verdict can only be set aside “when there


                                              11
is a complete absence of probative facts” to support it. Dennis v. Denver & Rio Grande W.

R.R. Co., 375 U.S. 208, 210; 84 S. Ct. 291; 11 L. Ed. 2d 256 (1963). Arguing that the

evidence presented at trial does not support the jury verdict, Illinois Central asks this Court

to remand this case for a new trial.

¶27.   Again, a repetition of the evidence presented in support of Hall’s claims of negligence

is unnecessary. The jury returned a verdict in favor of Hall in the amount of $1,501,907.97,

and we cannot say that this verdict was against the overwhelming weight of the evidence.

Therefore, the trial court was correct in denying Illinois Central’s motion for a new trial.

                                II. EXPERT TESTIMONY

¶28.   Illinois Central next asserts several assignments of error associated with Hall’s expert,

Berquist, including Berquist’s qualifications to testify as an expert, material referenced in the

expert’s testimony that was not produced in discovery, and the relevance of the expert’s

testimony and opinion. We examine each of these in turn.

                                               A.

¶29.   When reviewing a trial court’s decision to allow or disallow evidence, including

expert testimony, we apply an abuse of discretion standard. Webb v. Braswell, 930 So. 2d

387, 396–97 (Miss. 2006). Furthermore, a trial court’s decision to allow expert testimony

will be reversed only upon a showing of prejudice to Illinois Central. Jones v. State, 918 So.

2d 1220, 1223 (Miss. 2005).




                                               12
¶30.   In 2003, this Court amended Rule 702 of the Mississippi Rules of Evidence, placing

with the trial court the gatekeeping responsibilities of evaluating the admissibility of expert

testimony. Rule 702 now states:

       If scientific, technical, or other specialized knowledge will assist the trier of
       fact to understand the evidence or to determine a fact in issue, a witness
       qualified as an expert by knowledge, skill, experience, training, or education,
       may testify thereto in the form of an opinion or otherwise, if (1) their
       testimony is based upon sufficient facts or data, (2) the testimony is the
       product of reliable principles and methods, and (3) the witness has applied the
       principles and methods reliably to the facts of the case.

¶31.   Since the amendment, we have stated that “[w]e are confident that our learned trial

judges can and will properly assume the role as gatekeeper on questions of admissibility of

expert testimony.” Miss. Trans. Comm’n v. McLemore, 863 So. 2d 31, 40 (Miss. 2003)

(adopting the Daubert test concerning expert testimony). The two-prong test applied by this

Court examines both the relevance and the reliability of expert testimony. Jones, 918 So.

2d at 1227.

¶32.   In this case, the record reflects that during pre-trial motions, the trial judge heard

arguments from both Illinois Central and Hall regarding Berquist’s qualifications under Rule

702. After hearing arguments from both sides, Illinois Central informed the trial judge that

it would voir dire Berquist on his qualifications when Hall put him on the stand. Based on

this information, the trial judge reserved his ruling on the motion in limine until that time.

¶33.   During his direct examination, Berquist testified that he first became involved in the

railroad industry in 1960, and worked as a claim agent until 1973. Part of his job as a claim

agent was to be familiar with the safety rules of the railroad, because in investigating

                                              13
accidents, an investigator must know whether or not there was compliance with the safety

rules. Following a major accident, his job required him to train and educate employees

regarding safety rules.

¶34.   Berquist started a railroad safety consulting business in 1982 and has worked with

attorneys, insurance companies, state transportation departments, and private industries on

the topic of railroad safety regulations since then. Furthermore, Berquist indicated that he

had been qualified as an expert to testify as to the application of railroad safety rules and

accident prevention in various states throughout the country. In addition, Berquist testified

that he is a founding member of the National Association of Railroad Safety Consultants and

has attended and given presentations at various educational seminars.

¶35.   After Hall offered Berquist as an expert, Illinois Central proceeded to voir dire him

as to his qualifications. At the conclusion of this examination, Illinois Central argued that

Berquist did not qualify as an expert witness under Rule 702. Specifically, Illinois Central

argued that Berquist’s work experience as a claims investigator did not involve any

experience as a conductor, brakeman or switchman. Furthermore, Illinois Central argued that

Berquist had essentially self-educated himself regarding the safety of mounting moving

equipment by reading safety rules and studying information compiled from the Internet.

Hall’s counsel clarified that Berquist was not being offered to testify as to the actions of the

switching crew, but was instead being offered to testify as to the railroad industry’s operating

and safety rules and how Illinois Central failed to comply with those standards.




                                              14
¶36.     Taking into consideration the direct testimony of Berquist, Illinois Central’s voir dire

of Berquist and its motion in limine, the trial judge denied Illinois Central’s motion in limine

and allowed Berquist to testify as to the operation of safety rules in the railroad industry. In

applying Daubert to the facts of this case, we cannot say that the trial judge abused his

discretion in allowing Berquist to testify as an expert in the field of operating and safety

rules.

                                                B.

¶37.     Illinois Central also argues that the trial court committed reversible error by allowing

Berquist to reference certain material not provided in discovery. During his trial testimony,

Berquist referenced a booklet published by the Federal Railroad Administration (“FRA”)

containing statistical data on actual causes of railroad accidents. Berquist provided an

opinion of why the practice of mounting and dismounting moving locomotives was

abandoned by a majority of the major railroads. Illinois Central argues on appeal that Hall

failed to disclose any of this information during discovery, thereby committing a “blatant

discovery violation which alone requires reversal of the jury verdict.”

¶38.     During pre-trial discovery, Illinois Central propounded an interrogatory asking Hall

to identify all experts Hall planned to call as witnesses at trial, the subject matter on which

each expert would testify, the substance of the facts and opinions to which each expert would

testify, and the summary of the grounds for each expert opinion. Although Hall did not

identify Berquist in its response to the interrogatory, he later provided Illinois Central with

an expert report authored by Berquist. The report indicated that the practice of mounting and

                                               15
dismounting moving equipment was once an accepted practice, but more recently, railroads

were issuing rules prohibiting the practice. The report further disclosed Berquist’s opinion

that Illinois Central was negligent in failing to provide Hall with reasonably safe and

adequate rules for the performance of his work. The report did not specifically state

Berquist’s opinion as to why the major railroads changed their safety rules with regard to

mounting and dismounting equipment, nor did the report indicate that Berquist would

reference a booklet published by FRA containing statistical data of railroad accidents.

¶39.   During Berquist’s direct examination, counsel for Hall asked Berquist how the

railroad industry reacted to the standard of allowing people to mount and dismount moving

equipment. When Berquist began to answer that over the years a lot of people were getting

hurt, counsel for Illinois Central objected, stating “I don’t think the witness has shown he has

personal knowledge of this other than the two railroads he worked for.” Although the record

reflects several other objections to this line of questioning, no objections were made

regarding an alleged discovery violation.

¶40.   Furthermore, when Berquist was asked during direct examination what documentation

he reviewed that showed him what was occurring when employees were mounting and

dismounting moving equipment, he answered that he reviewed a booklet published by the

FRA containing statistics on railroad accidents.       The record reflects that just prior to

Berquist referencing the FRA material, counsel for Illinois Central objected to the answers

by Berquist as hearsay. The attorneys were asked to approach the bench, at which time a

bench discussion ensued. Presumably, this is the only possible time that Illinois Central may

                                              16
have objected to the FRA material, however, there is no statement on the record regarding

what objections might have been made during this bench conference. Other than the bench

discussion, no other objections to the FRA material were made during the trial.

¶41.   In fact, on cross-examination, the following exchange took place between Berquist

and counsel for Illinois Central regarding the FRA material:

Defendant’s Attorney:       Okay, sir. Now you also referred to an FRA report that was
                            issued in 1988 concerning employee injuries. Do you recall that
                            testimony?

Berquist:                   I referred to FRA materials from ‘88 through actually, I don’t
                            think I said “88. I should have said ‘98 if I said ‘88.

Defendant’s Attorney:       Okay.

Berquist:                   Now there was material back in the 80's, but it wasn’t as well-
                            defined as the more current material.

Defendant’s Attorney:       Well, does that report -- do you have that report with you?

Berquist:                   I have the 80's material with me. I don’t think I have that
                            material that goes back in the earlier years than the ‘88
                            materials. I can take a look but I rather doubt it. No, I don’t see
                            that earlier material with me.

Defendant’s Attorney:       Okay. So you don’t have that material with you here today.

Berquist:                   No, sir.

Defendant’s Attorney:       That’s all I have, Your Honor, Thank You.

¶42.   Illinois Central failed to properly object to Berquist’s testimony regarding reasons

why the major railroads were amending their safety rules and to Berquist’s reference to

statistical information from the FRA booklet. Thus, we find that Illinois Central is now


                                             17
procedurally barred from arguing on appeal that the trial court committed reversible error by

allowing this evidence to be admitted. Cotton v. State, 675 So. 2d 308, 314 (Miss. 1996)

(finding that when objection is made during bench conference, the complaining party must

preserve the record for appeal to avoid being procedurally barred); Fleming v. State, 604 So.

2d 280, 294 (Miss. 1992) (holding the absence of a timely objection causes defendant to be

procedurally barred from asserting the alleged error on appeal).

¶43.   Procedural bar aside, our rules of civil procedure require that a party must disclose the

name of each expert expected to be called as a witness at trial, the subject matter on which

each expert is expected to testify, the substance of the facts and opinions to which the expert

is expected to testify and a summary of the grounds for each opinion. Miss. R. Civ. P.

26(b)(4)(A)(I). When a discovery violation occurs, one of the sanctions available under our

rules of civil procedure is “an order refusing to allow the disobedient party to support or

oppose designated claims or defenses, or prohibiting him from introducing designated

matters in evidence.” Miss. R. Civ. P. 37(b)(2)(B). This Court has stated that “[a]n expert

should not be allowed to testify concerning a subject matter which is not included in the

response to the interrogatory,” and allowance of such would be reversible error. Buskirk v.

Elliott, 856 So. 2d 255, 264 (Miss. 2003).

¶44.   Compliance with the rule involves a fact-intensive comparison between the subject

matter contained in discovery responses and the subject matter of the testimony given by the

expert at trial. Id. This Court has found discovery violations and subsequent exclusion of

expert testimony to be proper when the experts testified as to a subject matter different from

                                              18
the subject matter contained in discovery responses. See, e.g., Coltharp v. Carnesale, 733

So. 2d 780, 786 (Miss. 1999) (trial court committed reversible error by admitting expert

testimony supporting additional theory of plaintiff’s injury not revealed during discovery);

T.K. Stanley Inc. v. Cason, 614 So. 2d 942, 950–51 (Miss. 1992) (trial court erred in

admitting expert testimony regarding permanent disability, as it was a separate subject matter

from causation). However, this Court has established that “where the stated subject matter

in the response necessarily includes the subject matter testified to at trial, it is an abuse of

discretion to exclude the expert’s testimony.” Buskirk, 856 So. 2d at 264.

¶45.   In this case, the alleged discovery violations include testimony regarding reasons why

the major railroads were amending their safety rules and Berquist’s reference to statistical

information from the FRA booklet. As stated previously, Berquist’s expert report stated that

a majority of the major railroads had changed their safety rules regarding the mounting and

dismounting of moving equipment in recent years. Therefore, this Court finds that the

subject matter contained in Berquist’s expert report (that major railroads were changing their

safety rules regarding the mounting and dismounting of moving equipment) included the

subject matter Berquist testified to at trial (reasons why major railroads were amending their

safety rules).4




       4
         Berquist limited his discussion regarding safety rules to “major railroads,” which he stated
did “the majority of the railroading in the United States.” Illinois Cental is considered one of the
“major railroads.” Berquist further testified that the small railroads, of which there are around 400,
typically adopt the safety rules of the nearest major railroad.

                                                 19
¶46.   Accordingly, the discovery violation arguments made by Illinois Central do not

require a reversal of the jury verdict.

                                              C.

¶47.   Illinois Central also argues that Berquist’s testimony and opinions were not relevant.

However, we find no evidence in the record (either in Illinois Central’s motion in limine,

arguments at trial or post-trial motions) that Illinois Central objected to the relevance of

Berquist testimony.     Only now on appeal does Illinois Central argue that Berquist’s

testimony was not relevant. Thus, Illinois Central is procedurally barred from raising this

argument on appeal. Chantey Music Publ’g, Inc. v. Malaco, Inc., 915 So. 2d 1052, 1060

(Miss. 2005) (holding that this Court does “not entertain arguments made for the first time

on appeal as the case must be decided on the facts contained in the record and not on

assertions in the brief”). Procedural bar aside, we find little merit to the argument that the

testimony was not relevant.

                         III. CONTRIBUTORY NEGLIGENCE

¶48.   Illinois Central next argues that the jury’s failure to attribute contributory negligence

to Hall was against the overwhelming weight of the evidence. Illinois Central contends that

the evidence showed that Hall was guilty of contributory negligence because he: (1) failed

to exercise reasonable care under the circumstances by not checking the bottom of his boots

or the ground condition prior to mounting the moving locomotive, (2) failed to radio the

engineer to stop or slow the locomotive prior to the incident, and (3) failed to comply with

Illinois Central’s safety rules.

                                              20
¶49.   Under FELA, the employee has a duty to exercise ordinary care under the

circumstances. Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 338 (5th Cir. 1997).

Illinois Central had the burden of proving that Hall failed to exercise ordinary care under the

circumstances. When reviewing a claim that a jury verdict was contrary to the overwhelming

weight of the evidence, we must accept as true the evidence that supports the verdict, and we

will reverse when convinced that the circuit court has abused its discretion. Watson v. State,

722 So. 2d 475, 480 (Miss. 1998).

¶50.   Illinois Central’s counsel elicited testimony from Hall that he did not check his boots

prior to mounting the locomotive. Also, Kearn testified that when he got mud on his boots,

he would scrape the bottom of his boots off on a seal step to get the excess mud off.

However, both Hall and Kearn testified that when it rained, a slippery mud would form in

the Yard which would accumulate on the workers’ boots, which could only be removed by

washing the boots with water. Hall also testified that he had been walking through the mud

all day on the day of his accident. Additionally, the jury was allowed to view photographs

of the muddy walkways. Hall testified that, despite the rain, employees did not stop and

check their boots before mounting a moving locomotive, although this could be a safe

practice.

¶51.   Illinois Central also claims that Hall was negligent in failing to radio the engineer to

instruct him to stop or slow the locomotive before he attempted to mount. Illinois Central

put on testimony from Chad Bishop (“Bishop”), Hall’s co-worker, who stated that he had

used his radio to slow or stop a locomotive in order to embark. Illinois Central also elicited

                                              21
testimony from Tom Evans (“Evans”), who stated that the normal procedure would be for

an employee to radio the engineer when he is about to mount the moving locomotive.

¶52.   On the other hand, Hall produced evidence to the contrary. Kearn testified that it was

not customary practice for employees to radio an engineer and tell them to stop or slow down

prior to mounting the locomotive. Also, Hall testified that during his 39-year career, he

never used his radio to tell an engineer to slow down or stop because he was trained to catch

the engine. No evidence was presented that radioing an engineer prior to mounting the

moving locomotive was required.

¶53.   Illinois Central also claims that Hall was negligent because he failed to comply with

Illinois Central’s safety rules which instructed employees to use experience, intelligence,

common sense and knowledge of safety rules in determining whether an activity is safe.

Further, rule T-740 stated that employees must not mount moving locomotives except when

necessary and must not attempt to get on or off equipment moving at an unsafe speed.

Illinois Central offered the testimony of Hall’s co-worker, Bishop, who testified that rule T-

740 placed restrictions on employees mounting equipment moving at an unsafe speed.

Bishop further testified that employees were to utilize Illinois Central’s general safety rule,

always using common sense in the performance of their job. Hall testified, however, that on

the day of the accident, he was acting in compliance with Illinois Central’s safety rules and

in accordance with his experience and training.

¶54.   The evidence produced at trial was not overwhelmingly in favor of either side. We

have never held that violation of a safety rule constitutes negligence per se. Such questions

                                              22
are for the jury. Thus, we find the jury’s rejection of Illinois Central’s contributory

negligence claim was not contrary to the overwhelming weight of the evidence.

                               IV. JURY INSTRUCTIONS

¶55.   Illinois Central next claims that the trial court erred in refusing to instruct the jury

concerning fact-specific claims of contributory negligence5 and in instructing the jury that

they could find for Hall on multiple claims of negligence. Following the evidentiary phase

of the trial, Illinois Central requested that the court grant two jury instructions regarding its

claims of Hall’s alleged contributory negligence. The two jury instructions were D-8A and

D-13. Proposed instruction D-8A would have, in a very detailed and fact-specific manner,

instructed the jury that Hall had a duty to exercise reasonable care. Proposed instruction D-

13 would have instructed the jury to consider a violation of company safety rules in

determining whether or not Hall was negligent. Proposed instruction D-8A was modified by

the court and presented to the jury, while proposed instruction D-13 was rejected.

¶56.   Further, Hall proposed jury instruction P-1,6 which instructed the jury to find in favor

of Hall if the jury found that Illinois Central failed to exercise reasonable care in providing




       5
        Although Illinois Central refers to its claims regarding Hall’s alleged negligence as
“contributory negligence” claims, Mississippi law employs a “pure comparative negligence” system.
Miss. Code Ann. § 11-7-15 (Rev. 2004).
       6
         Although the dissent finds the trial court erred in not granting Plaintiff’s proposed
instruction P-10, this instruction is not an issue on appeal. Proposed instruction P-10 was denied
by the trial court.

                                               23
a reasonably safe place for Hall to work, as required by FELA. Hall’s proposed instruction

P-1 was slightly modified 7 and given to the jury.

                                              A.

¶57.   We have established the following standard of review for challenges to jury

instructions:

       The Court does not single out any instruction or take instructions out of
       context; rather, the instructions are to be read together as a whole. A
       defendant is entitled to have jury instructions given which present his theory
       of the case. This entitlement is limited, however, in that the Court is allowed
       to refuse an instruction which incorrectly states the law, is covered fairly
       elsewhere in the instructions, or is without foundation in the evidence.

Spicer v. State, 921 So. 2d 292, 313 (Miss. 2006) (citing Parks v. State, 884 So. 2d 738, 746

(Miss. 2004)). Therefore, in reading the jury instructions as a whole, this Court must

determine whether the jury was properly instructed. Burton v. Barnett, 615 So. 2d 580, 583

(Miss. 1993). Even if one specific instruction arguably is faulty, “[d]efects in specific

instructions do not require reversal ‘where all instructions taken as a whole fairly - although

not perfectly - announce the applicable primary rules of law.’” Id. (citing Payne v. Rain

Forrest Nurseries, Inc., 540 So. 2d 35, 40 (Miss. 1989)).

¶58.   Illinois Central requested that the trial court grant proposed jury instruction D-8A,

which stated:

       The Plaintiff, James Wesley Hall, had a duty to exercise reasonable care for
       his own safety while he was working at the Illinois Central Railroad Company


       7
         The court struck the word “unsafe” as used by Hall in the proposed instruction P-1 and
substituted the word “not reasonably safe.”

                                              24
       facility. Put another way, James Wesley Hall was responsible for exercising
       ordinary care under the circumstances existing at the time of Plaintiff’s
       accident. Such circumstances include the Plaintiff’s experience, weather
       conditions, ground and footing conditions, locomotive speed, and the normal
       and customary procedures and practices when mounting moving locomotives.
       The Court further instructs the jury that if you find from a preponderance of
       the evidence that the Plaintiff, James Wesley Hall, while attempting to mount
       a moving locomotive, failed to exercise reasonable care for his own safety in
       attempting to mount a moving locomotive under the existing circumstances,
       then the Plaintiff was guilty of negligence. If you further find from a
       preponderance of the evidence that such negligence, if any was the sole cause
       of the accident in question and the Plaintiff’s injuries, then it will be your
       sworn duty to return a verdict for Defendant Illinois Central Railroad
       Company.

¶59.   Illinois Central argued that this instruction was necessary to properly instruct the

jurors that, if they found Illinois Central was not negligent and Hall was solely responsible

for his injuries, then the jury must return a verdict in its favor. Illinois Central also argued

that the instruction connected the specific facts of this case with the law, and instructed the

jury on what to consider in determining whether Hall was exercising reasonable care under

the circumstances.

¶60.   Conversely, Hall argued the instruction was properly denied because it failed to

instruct the jury of Illinois Central’s burden of proof, and further failed to address

comparative negligence.

¶61.    The trial judge decided that the proposed instruction would be modified and given.

The instruction, as modified, stated:

       The Court instructs the Jury that the Plaintiff, James Wesley Hall, had a duty
       to exercise reasonable care for his own safety while he was working at the
       Illinois Central Railroad Company facility. The defendant has the burden of
       proof on this issue.

                                              25
¶62.   On appeal, Illinois Central argues that the trial court committed reversible error by

modifying the instruction. Specifically, Illinois Central states that the instruction, “as

modified by the Court and read to the jury, was a blanket, abstract, boilerplate, jury

instruction on a mere legal principle, which was unrelated to the facts and evidence at trial

and the issues of the case.” Illinois Central points out that this Court has instructed

Mississippi trial courts that jury “instructions should be tied to the specific facts of the case

and when given merely in the abstract, may be grounds for error.” A.B. McCarty v. Kellum,

M.D., 667 So. 2d 1277, 1287 (Miss. 1996) (emphasis added).

¶63.   Illinois Central’s argument as to proposed jury instruction D-8 fails for several

reasons. First, McCarty does not stand for the proposition that a trial court’s giving of

abstract instructions to the jury constitutes reversible error. In fact, in McCarty, this Court

cautioned trial courts not to give abstract instructions, but later held that in reviewing the

instructions in toto, the jury was provided with the appropriate facts and standards. 667 So.

2d at 1287. This Court, therefore, found the abstract instruction issue in McCarty to be

without merit. Id. Contrary to the assertion by the dissent that the denial of D-13 and

modification of D-8A caused “ICR’s theory of the case [to be] totally disallowed in the jury

instructions,” Illinois Central’s theory of the case was adequately presented when viewing

the jury instructions in toto. Reading the jury instructions as a whole, Illinois Central’s

theory of Hall’s contributory negligence was adequately presented to the jury through various

other jury instructions, including jury instruction 17 (stating that Hall had a duty to exercise

reasonable care for his own safety), jury instruction 18 (instructing the jury to consider the

                                               26
negligence of both Illinois Central and Hall and assign a percentage of fault, if any, to each)

and jury instruction 22 (a special interrogatory form presented to the jury to find whether

Hall was negligent and whether such negligence contributed to his injuries). Therefore, we

cannot find that the trial judge abused his discretion in denying proposed jury instruction D-

8A.

¶64.   Illinois Central also proposed jury instruction D-13, which would have instructed the

jury as follows:

               The Court instructs the jury that the Defendant, Illinois Central Railroad
       Company, has adopted safety rules for the conduct and safety of its employees
       in the performance of their duties and their work. The Court further instructs
       the jury that you may consider the violation of company safety rules in
       determining whether or not the Plaintiff was negligent at the time of the
       accident in question.

             Illinois Central Railroad Company Safety Rule T-740(b), states:
       “Employees must not: . . . b) Attempt to get on or off when equipment is
       moving at unsafe speed.”

               The Court instructs the jury that if you find from a preponderance of the
       evidence that the Plaintiff violated either of the foregoing safety rule[s], you
       may consider the violation of such rule by the Plaintiff, together with all of the
       facts and circumstances and evidence, in determining whether or not the
       Plaintiff was negligent at the time of the accident. If you further find from a
       preponderance of the evidence that such violation of the Defendant’s safety
       rules, if any, was negligence and was the sole cause of the accident in question
       and the Plaintiff’s injuries, then it would be your sworn duty to return a verdict
       for the Defendant Illinois Central Railroad Company.

¶65.   Illinois Central argued before the trial court that instruction D-13 was needed in order

to instruct the jury on its theory that Hall’s violation of T-740 provided evidence of Hall’s

negligence. On the other hand, Hall argued that the instruction did not adequately state the


                                              27
law because it did not specify that an alleged violation of a safety rule does not prove

negligence on the part of Hall, but is merely a factor. The trial judge later refused proposed

jury instruction D-13 without explanation.

¶66.   Illinois Central argues that D-13 was supported by the evidence and was the only

instruction covering Hall’s alleged violation of the safety rules and, therefore, the trial court

erred in denying the instruction. Hall argues, however, that the trial court did not abuse its

discretion in refusing to grant D-13, but merely followed the ranks of many courts that have

refused to give effect to safety rules allegedly broken by the injured employee.

¶67.   A review of proposed instruction D-13 evidences that the trial judge did not abuse his

discretion in denying the instruction. Although not specifically addressed by the parties, we

find that the evidence did not support a giving of D-13. D-13 asked the jury to consider

whether Hall violated T-740, which instructed employees not to mount equipment moving

at an unsafe speed. There was no testimony that the train in question was moving at an unsafe

speed at the time of the accident. The dissent even notes that “Hall admitted that the

locomotive was traveling at a safe speed.” Our case law is clear that jury instruction must

be supported by the evidence. See Burr v. Miss. Baptist Med. Ctr., 909 So. 2d 721, 726

(Miss. 2005) (the defense is entitled to jury instructions which present its theory of the case,

if supported in the evidence.).

¶68.   Furthermore, the first sentence of instruction D-13 is a statement of fact (that Illinois

Central has adopted safety rules), to which Illinois Central was entitled to put on evidence

showing whether or not such fact was true. The second sentence, (that the jury may consider

                                               28
safety rules), merely points to a specific piece of evidence for the jury to consider and is

repetitive of previous instructions. The jury was instructed to “carefully scrutinize . . . every

matter in evidence,” and this sentence merely repeats that instruction, by pointing to a

specific piece of evidence for the jury to consider. Lastly, there was no entitlement to an

instruction that pointed special attention to T-740. A specific reference to T-740 would be

more appropriate during closing arguments, where the attorneys fairly sum up the arguments

and point to specific facts presented which support their case. Spicer v. State, 921 So. 2d

292, 309 (Miss. 2006). Accordingly, we find that Illinois Central was not entitled to D-13

and the trial judge did not abuse his discretion in denying the instruction.

                                                 B.

¶69.      Illinois Central next claims that the trial court erred in giving instruction P-1, which

stated:

                 In this case the Plaintiff’s claims are asserted under the Federal
          Employers’ Liability Act. The Federal Employers’ Liability Act (known as
          the F.E.L.A.) provides that every common carrier by railroad, while engaged
          in commerce between any of the several states, shall be liable in damages to
          any of its employees who are injured as a result of negligence by the railroad.

                 In this case the Plaintiff claims that the Defendant failed to exercise
          reasonable care, as required by the Federal Employers Liability Act, to provide
          him with a reasonably safe place in which to work. Specifically, the Plaintiff
          claims the following:
                 (1)     That Defendant’s policy and rules regarding the
                         mounting of moving Railroad equipment was not
                         reasonably safe; or
                 (2)     That Defendant failed to promulgate or enact safety rules
                         making the work environment reasonably safe; or




                                                 29
               (3)    That Defendant’s policy and rules regarding the
                      mounting of moving Railroad equipment in inclement
                      weather conditions was not reasonably safe; or
               (4)    That Defendant failed to provide Plaintiff with
                      reasonably safe walkways and reasonably safe walking
                      conditions to utilize when mounting moving Railroad
                      equipment;

               In order to prevail on this claim the Plaintiff must prove each of the
       following by a preponderance of the evidence:
               First: That the Defendant Railroad was “negligent” as claim by the
       Plaintiff; and
               Second: That such negligence was a “legal cause” of damage sustained
       by the Plaintiff.
               The first issue for you to consider under the Federal Employers
       Liability Act claim is whether the Defendant, or any of its employees other
       than the Plaintiff, was “negligent” and if so, whether such negligence was a
       “legal cause” of any damages sustained by the Plaintiff.

¶70.   Illinois Central argues on appeal that Hall testified that the only claim of negligence

he had evidence to support was his allegation that Illinois Central’s practice of allowing

employees to mount and dismount moving equipment was inherently unsafe. Therefore,

Illinois Central argues, the trial court erred by allowed jury instruction P-1, which allowed

the jury to find for Hall on other claims of negligence, specifically, Hall’s claims that Illinois

Central was negligent in failing to provide safe walkways and walking conditions. Hall

points out, however, that there was sufficient evidence presented at trial in support of his

other claims of negligence.8 We agree. As stated earlier, a party does not concede an issue

or waive a claim, simply because the party cannot establish the claim from personal


       8
       As discussed previously, testimony was presented from both Hall and Kearn regarding the
muddy and slippery conditions of the yard during and after rainfall. Additionally, photographs of
the muddy yard were admitted into evidence.

                                               30
knowledge. The pertinent question is whether the evidence, taken as a whole, provides a

sufficient basis for the claim.

¶71.     Jury instructions should be granted only where some supporting evidence has been

presented. Bolden, 854 So. 2d at 1057. A review of the record, including Hall’s testimony

regarding the condition of his boots on the day of the accident, reveals that the entirety of

jury instruction P-1 was supported by the evidence presented. Thus, this issue is without

merit.

                              V. LAY WITNESS TESTIMONY

¶72.     Finally, Illinois Central argues that the trial court committed reversible error by

allowing Hall’s lay witness to testify as to the safety of the locomotive. Prior to trial, Illinois

Central filed a motion in limine seeking to preclude Hall’s expert from offering testimony

regarding locomotive design, arguing that such testimony was an impermissible attempt to

regulate train design, which is precluded by the Federal Locomotive Inspection Act

(“FLIA”).9 49 U.S.C. § 20701. This motion was granted by the trial court.10 At trial, Hall’s

co-worker, Kearn, testified that it was easier to mount a “switching” locomotive than a

“road” locomotive. After several objections by Illinois Central regarding this line of

questioning, the trial court allowed the line of questioning to continue. Illinois Central



         9
        This Act was formerly known as the “Boiler Inspection Act” and is still referenced as such
in some cases.
         10
         The record indicates that the trial court did not rule on the merits of this motion, but rather,
Hall’s counsel did not dispute the motion and indicated that he would not be putting on any evidence
about nonskid paint.

                                                   31
argues that this testimony violates FLIA jurisprudence. In reviewing a trial court’s decision

to allow or disallow evidence, this Court uses and abuse of discretion standard of review.

Webb, 930 So. 2d at 396–97.

¶73.   Compliance with FLIA requires that a locomotive only be used when the locomotive

and its parts “(1) are in proper condition and safe to operate without unnecessary danger of

personal injury; (2) have been inspected as required under this chapter and regulations

prescribed by the Secretary of Transportation under this chapter; and (3) can withstand every

test prescribed by the Secretary under this chapter.” 49 U.S.C. § 20701. FLIA confers upon

the Interstate Commerce Commission the duty to inspect locomotives, as well as prescribe

the rules and regulations for determining fitness of locomotives. Napier v. Atl. Coast Line

R.R. Co., 272 U.S. 605, 612; 47 S. Ct. 207, 209; 71 L. Ed. 432, 438–39 (1926). This,

therefore, excludes state regulation of safety appliances, parts and appurtenances of

locomotives. Id. at 613. The United States Supreme Court has indicated that in passing

FLIA, Congress intended the Act to occupy the entire field of regulating locomotive

equipment. Id. at 611.

¶74.   While it is clear that FLIA preempts any state regulation of locomotive design, a

majority of courts have also found that FLIA preempts common law actions against

locomotive operators and locomotive manufacturers. See, e.g., In re W. Va. Asbestos

Litigation, 592 S.E.2d 818, 822 (W. Va. 2003) (holding asbestos claim against railroad

preempted by the FLIA); General Motors Corp. v. Kilgore, 853 So. 2d 171, 176 (Ala. 2002)

(finding plaintiff’s common law claim against railroad manufacturer to be preempted by

                                             32
FLIA); Scheiding v. General Motors Corp., 993 P.2d 996, 1002 (Cal. 2000) (finding FLIA

preempts employees products liability claim against locomotive manufacture). Therefore,

Illinois Central correctly sought a motion in limine to prevent Hall from asserting any claims

as to the train’s design.

¶75.   Contrary to Illinois Central’s argument, however, we find no violation of FLIA in

Kearn’s testimony. When asked to describe a switch engine, Kearn testified that a switch

engine is an engine specifically built to switch cars, as opposed to a road engine, which is

built differently. He further testified that sometime in the nineties, Illinois Central stopped

using switch engines and started using road engines in the yard. After being asked about the

difference between mounting these two types of engines, Kearn stated, “it’s a difference

between night and day. A switch engine has a bigger foot[,] well, it’s easier to mount, it’s

safer to mount, and it’s just meant for the yard I think.”

¶76.   We fail to see how this testimony violates FLIA, which merely preempts state law

regulations and common law actions regarding locomotive design. Therefore, this claim has

no merit.

                                      CONCLUSION

¶77.   Having considered the arguments set forth by the parties in their briefs to this Court,

and having carefully reviewed the record, we find that Illinois Central’s arguments have no

merit. Therefore, this Court affirms the jury verdict in favor of Hall in the amount of

$1,501,907.97.

¶78.   AFFIRMED.

                                              33
     DIAZ, EASLEY AND RANDOLPH, JJ., CONCUR. SMITH, C.J., DISSENTS
WITH SEPARATE WRITTEN OPINION JOINED BY COBB, P.J., AND CARLSON,
J. WALLER, P.J., AND GRAVES, J., NOT PARTICIPATING.

       SMITH, CHIEF JUSTICE, DISSENTING:

¶79.   The majority holds that the trial court did not err and accordingly affirms the verdict

awarded for damages in favor of Hall for his broken leg and against Illinois Central (“ICR”)

in the amount of $l,50l,907.97. I find several issues in regard to the jury instructions and

expert testimony which in my view constitute error by the trial court. Accordingly, I

respectfully dissent.

¶80. First, in my view, the majority errs in upholding the trial court in its granting of

Plaintiff’s instruction P-1 and 10, which were fact-specific instructions that informed the jury

of Hall’s claims of negligence. This error is compounded by the trial court’s denial of ICR’s

Jury Instruction D-13 and drastic modification of D-8(a), both of which were also fact-

specific instructions containing ICR’s theory of defense, duty of care, violation of ICR’s

safety rule T-740 and claims that it was Hall’s negligence that caused this accident. To grant

plaintiff’s instructions but deny defendant’s was blatantly unfair. The granting of Hall’s

aforementioned instructions without modification allowed the theory of the claim that

inadequate walking conditions caused or contributed to Hall’s accident, when Hall admitted

he didn’t know what caused his accident. The majority further compounds its error in

holding that ICR’s attempt to rely upon a violation of Safety Rule T-740 constituted

negligence per se. That is simply not what ICR’s instruction stated. Instead, the instruction

merely allowed the jury to consider a violation of Safety Rule T-740 as one factor along with

                                              34
any others they might find which may have contributed to negligence in causing this

accident, thus assisting the jury in arriving at their verdict.

¶81.    We have instructed trial courts that “jury instructions should be tied to the specific

facts of the case and when given merely in abstract may be grounds for error.” A.B.

McCarty v. Kellum, M.D., 667 So. 2d 1277, 1287 (Miss. 1995) (quoting T.K. Stanley, Inc.

v. Cason, 614 So. 2d 942, 952 (Miss. 1992); Estate of Lawler v. Weston, 451 So. 2d 739,

741 (Miss. 1984); Harkins v. Paschall, 348 So. 2d 1019, 1023 (Miss. 1977); Freeze v.

Taylor, 257 So. 2d 509, 511 (Miss. 1972)). The McCarty Court made clear that mere

definition of the standard of care does not direct the jury to do anything and that jury

instructions which relate abstract legal principles unrelated to the facts and issues of the case

tend to mislead the jury. Id. In Cason, this Court held that such an abstract instruction

should not be given on retrial. Cason, 614 So. 2d at 952. Further, in Harkins, we

admonished the bench and bar that the use of an abstract instruction without application of

the specific facts of the case under consideration invites reversible error. Harkins, 348 So.

2d at 1023.

¶82.   Furthermore, in reviewing the granting or refusal of jury instructions, our

“overarching concern is that the jury was fairly instructed and that each party's

proof-grounded theory of the case was placed before it.” Splain v. Hines, 609 So. 2d 1234,

1239 (Miss. 1992) (quoting Rester v. Lott, 566 So. 2d 1266, 1269 (Miss. 1990). We have

held that both parties have the right to embody their theories of the case in the jury

instructions provided there is testimony to support it, but only "if made conditional upon the

                                               35
jury's finding that such facts existed." Reese v. Summers, 792 So. 2d 992, 994 (Miss.

2001)(quoting Murphy v. Burney, 27 So. 2d 773, 774 (Miss. 1946)). By denying D-13 and

drastically modifying D-8(a) to an abstract instruction, which merely defines the standard of

care and wholly fails to instruct the jury to do anything, ICR’s theory of the case was totally

disallowed in the jury instructions. Here, the defense was prohibited from presenting their

theories via jury instructions, while the plaintiff’s instructions were all granted.

¶83.   Next, I find myself at odds with the majority concerning the Plaintiff’s expert

Berquist. First, in my view Berquist was not properly qualified under Daubert to testify as

he did in this case regarding Hall’s attempted mounting of the moving locomotive. Berquist

should not have been allowed to testify on this issue as he was not properly qualified as an

expert on switching operations or the operation of safety rules governing the methods or

procedures used in switching operations. Berquist must be able to draw upon some special

skill, knowledge, or experiences to formulate his opinion. Examining Berquist’s background,

we find the record reveals that in 1960 he worked for Northern Pacific Railroad as a claims

agent for two years. Then he worked at Florida East Coast Railroad as a claims agent until

1973. He never worked for another railroad. He was never an engineer, conductor,

switchman or utility man. In 1973, he commenced work for Hastings and Goldman Law

Firm as an investigator assigned to a unit at the firm that represented injured railroad

employees, or FELA plaintiffs. Since1982 he has worked as a self named, “railroad safety

consultant.” He is not certified and holds no professional title, license, or certificate. He has

no formal training on railroad operations or safety rules and has never been tested on the

                                               36
subject matter. More importantly, he has never attempted to mount a locomotive during

switching operations. He neither performed an independent investigation of this accident nor

examined the area of the yard where it occurred. In my view, in order to meet Daubert’s

prongs, Berquist must be experienced or have had advanced training qualifying him to render

an expert opinion regarding mounting of a moving locomotive as it relates to the specific

issues in the case at bar. General experience in a specialized field does not qualify a witness

as an expert. This Court has held that an expert’s testimony is not admissible unless the

witness “possesses peculiar knowledge or information regarding the relevant subject matter

which is not likely to be possessed by a layman.” Nunnally v. R.J. Reynolds Tobacco Co.,

869 So. 2d 373, 384 (Miss. 2004). In a FELA case, the Fifth Circuit Court of Appeals has

held that general experience in one railroad field does not qualify one to testify as an expert

in all railroad fields, especially when the purported expert has no training, experience,

or specialized knowledge whatsoever in the area of his proffered testimony.” Edmonds

v. Illinois Central Gulf Railroad Co., 910 F. 2d 1284, 1287 (5 th Cir. 1990). Berquist’s lack

of education, formal training, or experience in mounting moving locomotives and rules

concerning the same make him unqualified as an expert according to Daubert as well as

M.R.E. 702.

¶84.   The second prong of Daubert is not met either. Berquist is clearly advocating that a

safer method of carrying out his job description existed for Hall (don’t mount a moving

locomotive), because a mere four other railroads out of 400 nationwide have stopped doing

so. In fact, Hall could have checked his boots first, or called the engineer, as he had done

                                              37
moments before, and slowed or stopped the train prior to mounting. The Fifth Circuit Court

of Appeals has addressed this issue of alternative procedure in a FELA case and held that

“the task at which Mr. Soto was injured was one that could be done safely by the method

which he was told to use and was using.” Soto v. Southern Pacific Transp. Co., 644 F.2d

1147 (5 th Cir. 1981); see also Stillman 811 F. 2d at 838 (where that court stated as I have

previously herein, “the relevant inquiry was whether the railroad had exercised reasonable

care, not whether the procedures used by the railroad could have been made safer.”) Id.

This Court should follow and apply here the decisions of the Fifth Circuit in Soto.

¶85.   Further, Hall did not identify Berquist in response to interrogatories, though he did

submit Berquist’s report at a later date. Although the report referenced railroads now issuing

rules prohibiting the practice of mounting moving locomotives, it did not specifically state

Berquist’s opinion as to why these railroads changed their rules. Berquist’s view was that

mounting moving locomotives at any speed is unsafe. Even more critical was the fact that

Berquist’s report did not reference a booklet published by FRA regarding statistical data of

railroad accidents, yet he repeatedly testified regarding statistics from the booklet. Hall

failed to produce the documentation during discovery. Berquist certainly relied heavily

upon it during testimony. It was never offered, identified or introduced at trial. We do not

know for sure if in fact the booklet exists.    Worse yet, as did the Plaintiff in Seymour,

Hall’s expert identified a mere four railroads out of more than 400 operating nationwide in

which an alternative method to ICR’s Safety Rule T-740 was utilized. Berquist’s testimony

strikes me as being nowhere close to a required, reasonable, railroad industry standard

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regarding mounting of moving locomotives during switching operations. Nor does it

reasonably identify this as an inherently unsafe practice that cannot be done in a safe manner.

Standing alone, the facts supplied concerning Hall’s 39-year career of safely mounting

moving locomotives belie such a contention. Berquist’s testimony is insufficient to establish

ICR’s negligence under FELA as a matter of law.

¶86.   Finally, the trial court erred again in allowing testimony of Bubba Kern, Hall’s co-

worker, that it was easier to mount a switching locomotive than a general-purpose

locomotive, the latter of the two being that which was used to switch cars in the yard at the

time of this accident. Prior to trial, the court had properly granted ICR’s motion in limine

precluding testimony beyond FRA regulations governing train and locomotive designs and

the purposes of their use. Developing and propounding specific regulations governing train

design is a proper function only for FRA, and any claim related to the design and/or purpose

of a train (including the one at issue here) is precluded by the Locomotive Inspection Act

under FRA jurisdiction. See 49 U.S.C. 20701. The United States Supreme Court has

considered this statute in Napier v. Atlantic Coast Line R.R. Co., 272 U.S. 605, 613; 47 S.

Ct. 207, 71 L. Ed. 432 (1926) and held that Congress intended the LIA to “occupy the field”

of locomotive equipment regulation. Thus, when a locomotive is in compliance with LIA,

that locomotive is safe as a matter of federal law. Id. Here, Kern was allowed to testify, over

ICR’s objection, that the use of the general-purpose locomotive was unsafe because it was

not a switching locomotive. This testimony put a new theory of negligence before the jury




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which was not established in the pleadings and was not disclosed by Hall’s responses to

ICR’s interrogatories. This error mandates a new trial.

¶87.   Due to these substantial and prejudicial errors, I find that I cannot agree with the

majority to uphold this verdict. These errors combined to cause extreme prejudice to ICR,

which certainly did not receive a fair trial. This is especially egregious where the jury failed

to consider the overwhelming evidence and law in finding no comparative negligence on the

part of Hall.

¶88.   I respectfully dissent.

       COBB, P.J., AND CARLSON, J., JOIN THIS OPINION.




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