UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1345
LARRY L. KOGER,
Plaintiff - Appellee,
v.
NORFOLK SOUTHERN RAILWAY COMPANY,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield. David A. Faber, Senior
District Judge. (1:08-cv-00909)
Submitted: December 10, 2010 Decided: January 3, 2011
Before WILKINSON, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John H. Mahaney, II, J. Jarrod Jordan, HUDDLESTON BOLEN, LLP,
Huntington, West Virginia, for Appellant. James L. Farina,
Steven P. Garmisa, HOEY & FARINA, P.C., Chicago, Illinois, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Norfolk Southern Railway Company (“Norfolk Southern”)
appeals the district court’s judgment and $3,431,026 award to
Larry Koger, a former employee injured allegedly due to Norfolk
Southern’s negligence. Norfolk Southern argues that the
district court erred in its instructions to the jury and erred
by denying its motion for a new trial after Koger’s attorney
made allegedly improper remarks to the jury during closing
arguments. We affirm.
I. Jury Instructions
Koger, who sued Norfolk Southern under the Federal
Employers Liability Act (“FELA”), was a Norfolk Southern train
conductor who was injured when the locomotive he was riding in
derailed while leaving a Norfolk Southern train yard in West
Virginia. Prior to trial, the district court concluded that
Norfolk Southern was negligent as a matter of law, but allowed
Norfolk Southern to argue that Koger was contributorily
negligent.
The court’s “statement of the case” to the jury read
as follows:
Plaintiff Larry L. Koger claims damages under [FELA]
for personal injuries alleged to have been suffered as
a result of negligence by defendant Norfolk Southern
Railway Company.
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Defendant Norfolk Southern Railway Company asserts
that plaintiff Larry L. Koger was not injured as a
result of any negligence by defendant.
. . .
Since a corporation can act only through its officers,
or employees, or other agents, any negligent act or
omission of an officer, or employee, or other agent of
a corporation, in the performance of that person’s
duties, is held in law to be the negligence of the
corporation.
Norfolk Southern claims that the jury could have misread the
final paragraph to allow them to impute Koger’s negligence, if
any, back to Norfolk Southern. We do not agree.
In determining whether the district court erred in
instructing the jury, we review the district court’s jury
instructions “in their entirety and as part of the whole trial
and focus on whether the district court adequately instructed
the jury regarding the elements” of the tort and the defendant’s
defenses. United States v. Wilson, 198 F.3d 467, 469
(4th Cir. 1999) (discussing criminal jury instructions)
(citation omitted). On review, jury instructions must be viewed
as a whole. Hardin v. Ski Venture, Inc., 50 F.3d 1291, 1294
(4th Cir. 1995). We review the instructions given by a district
court for abuse of discretion. United States v. Jeffers, 570
F.3d 557, 566 (4th Cir.), cert. denied, 130 S. Ct. 645 (2009).
Norfolk Southern claims that the court’s instructions
to the jury were incorrect as a matter of law, and highly
prejudicial to its defense. They cite to pattern jury
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instructions that would have included a caveat that the
negligence of employees, other than the plaintiff, is to be
imputed to the employer. Reviewing the jury instructions as a
whole, though, we do not conclude that the court abused its
discretion. In other instructions, the court gave detailed
information to the jury related to calculating the respective
fault of the parties and how those calculations affected their
verdict. Accordingly, the court’s instructions were not
erroneous.
II. Improper Closing Statement
Koger’s theory of the case was apparently that Norfolk
Southern’s management employees falsified evidence and
misrepresented certain findings to the court. After discussing
this claim, in closing remarks, counsel for Koger told the jury
that they should “send a message” to Norfolk Southern. Norfolk
Southern objected before counsel could finish, and the court
sustained the objection. Norfolk Southern moved, following the
verdict, for a new trial in part based on this improper remark.
The district court denied the motion.
We review a district court’s denial of a motion for a
new trial for abuse of discretion. See United States v.
Fulcher, 250 F.3d 244, 249 (4th Cir. 2001). Norfolk Southern
claims that Koger’s statement that the jury must “send a
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message” constituted a covert request for punitive damages,
which are not available in FELA actions. Koger argues that his
remarks were not improper, and that in any event, the district
court sustained an objection to the remarks.
We have reviewed the record, and we conclude that the
“send a message” comment was not a request for punitive damages,
and the district court did not abuse its discretion in denying
the motion for a new trial, especially in light of the fact that
an objection to the comments was sustained.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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