United States Court of Appeals
For the First Circuit
No. 96-1134
DAVID D. STEVENS,
Plaintiff, Appellee,
v.
BANGOR AND AROOSTOOK RAILROAD COMPANY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Eugene W. Beaulieu, U.S. Magistrate Judge]
Before
Torruella, Chief Judge,
Cyr and Lynch, Circuit Judges.
Jeffrey T. Edwards, with whom Elizabeth J. Wyman and Preti,
Flaherty, Beliveau & Pachios, Portland, ME, were on brief, for
appellant.
Robert M. Byrne, Jr., with whom Thornton Early & Naumes,
Boston, MA, and Craig J. Rancourt, Biddeford, ME, were on brief,
for appellee.
October 9, 1996
LYNCH, Circuit Judge. David Stevens, a railway
LYNCH, Circuit Judge.
trackman with sixteen years of service at the Bangor &
Aroostook Railroad Company, suffered back injuries from an
accident on the job. The jury in his Federal Employers'
Liability Act action awarded him $450,000.1 The Railroad
appeals from the verdict and the denial of its motion for a
new trial, saying the evidence showed neither negligence nor
foreseeability and that certain evidentiary rulings were in
error.
The Railroad raises two issues of weight. It
argues it was unfairly prejudiced by the exclusion of
evidence of a cardiac event suffered by plaintiff two weeks
before trial. It also argues that the court erred in
instructing the jury that, while defendant was responsible
only for the aggravation of a pre-existing condition, the
jury must find for plaintiff if it could not separate the
injury caused by the condition from that caused by the
accident. These health-related issues require us to address
questions not resolved before now in this Circuit. We
affirm, though with some sympathy for the tribulations faced
by trial counsel.
I.
1. The jury found the Railroad responsible for 90% of
Stevens' injuries; Stevens responsible for 10%.
-2-
2
The jury could reasonably have believed the facts
to be as follows:
On a winter morning in northern Maine, February 19,
1994, there was a train derailment on the main line to the
Millinocket Yard of the Railroad. The derailment tore up
some tracks, which had to be repaired promptly. The
Millinocket Yard is an important junction point, and the oil
tank cars that fuel the local industry travel along its main
line.
David Stevens, a trackman and machine operator,
arrived at the yard around 7 a.m. at the request of his
foreman. Stevens' job involved heavy manual labor, and that
morning he helped repair the consequences of the derailment.
After clearing away torn rail and scrap metal, Stevens and a
co-worker, David Ireland, were asked to get lengths of rail
to repair the damaged track.
The rail was kept in the X-198 railcar, known as
the "wreck car." Different weights of thirty-nine foot
lengths of rail were piled in the car,2 some lying on their
sides, some on their bases. The rails were in disarray,
piled to a height of about two to three feet above the base
of the car. Their surface was uneven and there were
2. The "weight" of a rail is the weight in pounds of a three
foot section. This car had varying lengths of 100 pound, 112
pound, and 115 pound rail, each of which has a somewhat
different shape and size.
-3-
3
irregular gaps between the pieces of rail. In violation of
the Railroad's own safety rules, the wreck car had been
loaded using inappropriate equipment and had not been
blocked, thus leading to the gaps between the rails.
Stevens' task was to climb onto the rails in the
wreck car and position the rails so that his co-worker,
Ireland, operating a machine called a pettibone, could secure
the rail with the pettibone's tongs. Stevens first shoveled
snow and ice off the portion of the wreck car where he needed
to work. The two men then successfully offloaded six rails,
with Ireland operating the pettibone in response to Stevens'
hand signals. Then Stevens, standing atop the rails in the
wreck car, reached up for the tongs of the pettibone to guide
it down to the seventh rail. He slipped and fell. His right
leg, up to his groin, went down a gap in the rails. He
twisted as he fell and felt a sharp pain in his back. With
difficulty and great pain, he extricated himself. Declining
co-workers' offers to take him to the hospital and wanting to
earn the $20 an hour overtime pay, Stevens continued working
for eighteen more hours.
When he went home, the pain continued, as it did
when he returned to work on February 25, 1994. On February
28, unable to continue working due to the pain, he went to
the hospital. He was first diagnosed with lumbar strain, but
when physical therapy did not improve his condition, his
-4-
4
orthopedic surgeon ordered an MRI, which showed early
degenerative disk disease and some narrowing of the disks.
He has since been in physical and occupational therapy,
unable to return to his job because his back pain disables
him from physical labor. Jobs in his area of Maine are few
and far between, particularly once employment requiring heavy
manual labor is excluded. Stevens, who is married and has
children, works sporadically as an animal control officer at
about $75 a week and earns small sums as the owner of a
delivery truck.
Before Stevens' accident, the Railroad had at times
loaded the rails onto transport cars in a regular tiered
fashion. The Railroad had decided even before the accident
to switch to this system for the wreck car because it would
be more efficient. It would also be safer because it would
be easier for the pettibone operator to grab the rails and so
reduce the need for a trackman to climb onto the rails to
guide the pettibone's tongs.
II.
Sufficiency of the Evidence and New Trial Motion
The Federal Employers' Liability Act was enacted in
1908 to provide railroad workers with a federal remedy for
personal injuries suffered as a result of the negligence of
their employers or fellow workers. Consolidated Rail Corp.
v. Gottshall, 114 S. Ct. 2396, 2404 (1994); Robert v.
-5-
5
Consolidated Rail Corp., 832 F.2d 3, 5-6 (1st Cir. 1987)
(citing Atchison T. & S.F. R.R. v. Buell, 480 U.S. 557, 561
(1987)). FELA is a broad remedial statute and has been
liberally construed to effectuate the congressional intent of
protecting railroad employees. Id. (citing Sinkler v.
Missouri Pac. R.R., 356 U.S. 326, 330 (1958)). The standard
for liability under FELA is low, although the statute does
not impose absolute liability on employers. Moody v. Boston
& Maine Corp., 921 F.2d 1, 3 (1st Cir. 1990).
A FELA plaintiff must prove the traditional common
law elements of negligence -- duty, breach, damages,
causation, and foreseeability. Robert, 832 F.2d at 6.
Specifically, he must show that his employer breached its
duty to maintain a safe workplace, that he was harmed by that
breach, and that the harm was foreseeable. The employer's
duty to maintain a safe workplace does not require all
dangers to be eradicated, but it does demand the elimination
of those that can reasonably be avoided in light of the
normal requirements of the job. Conway v. Consolidated Rail
Corp., 720 F.2d 221, 223 (1st Cir. 1983), cert. denied, 466
U.S. 937 (1984). FELA provides that railroad employers are
liable for injuries to their employees "resulting in whole or
in part" from the employer's negligence. 45 U.S.C. 51
(emphasis added); see also Robert, 832 F.2d at 6 ("[U]nder
-6-
6
FELA negligent employers cannot escape liability merely
because other causes contribute to the injury.").
Measured against these standards, the evidence was
sufficient to impose liability. The Railroad argues that
there was no negligence on its part causing Stevens to slip
and no way for it to foresee that Stevens would be injured.
Neither the challenge to the sufficiency of the
evidence nor the appeal from the denial of the new trial
motion is well taken.
Stevens was injured when he fell into a gap between
the rails created by their haphazard arrangement in the wreck
car. The disarray also increased the number of times the
trackman had to climb atop the rails in the wreck car to help
the pettibone operator, thus making it more likely a worker
would fall and slip into a gap between the rails. Although
Stevens had cleared away the ice and snow from the area where
he was working, it was certainly foreseeable that, given the
uncertain footing underneath, a trackman would fall. It was
also foreseeable that on falling, he would slip into a gap
and be injured or suffer greater injuries than he otherwise
would have. Stevens has proffered more than enough to meet
his burden.
Subsequent Remedial Measures
The Railroad claims that two items of evidence -- a
post-accident photograph of a wreck car whose rails are
-7-
7
arranged in a tiered fashion, and references to comments made
at a company safety meeting following the accident -- were
admitted into evidence in violation of Fed. R. Evid. 407,
which prohibits the introduction of a defendant's subsequent
remedial measures.
We doubt that Rule 407 applies at all here. As to
the photograph showing a car with the rails arranged in
tiers,3 the jury was told only that it depicted an
arrangement of the type Stevens had seen on other cars on
which he had worked before his accident. The jury was not
informed of the date of the photograph and was not told that
it portrayed a subsequent remedial measure. The photograph
was properly admitted to show the Railroad's past practice
and standard of care.
The jury also did not know that the challenged
references to statements by Mr. Cote, the Railroad's
roadmaster, concerned statements made during a post-accident
safety meeting. The references to Cote's statements were
supported by notes taken by one of the Railroad's foremen,
Thomas Bell.4 The jury never saw the notes, and the
3. The photograph was a fair representation of rails aligned
in a row, same sides up, which Stevens had walked on in other
cars prior to the accident. It showed a different, less
dangerous alignment than the alignment in the wreck car on
which he was injured.
4. The notes said that, "Rails still coming in from Derby
on supply cars a mess rails every which way and Holes in the
floor of car . . . . RNC [Robert N. Cote] mentioned [time of
-8-
8
references to Cote's statements were admitted for impeachment
purposes only. Cote had testified that he had never stated
the rails on the wreck car were in disarray at the time of
the plaintiff's accident and that he remembered the rails as
having been arranged neatly. His later statement about the
condition of the rails at the time of the accident could be
understood to be to the contrary and was thus fair game.
Thus, because the evidence was not presented to the
jury directly or by inference as subsequent remedial
measures, Rule 407 does not apply. Even if Rule 407 applied,
the exception within the rule would also apply:
This rule does not require the exclusion
of evidence of subsequent measures when
offered for another purpose, such as
proving ownership, control, or
feasibility of precautionary measures, if
controverted, or impeachment.
This evidence fell within the exception. These two rulings
fell well within the sound discretion of the trial judge.
See Blinzler v. Marriott Int'l, Inc., 81 F.3d 1148, 1158 (1st
Cir. 1996); Roy v. Star Chopper Co., 584 F.2d 1124, 1134 (1st
Cir. 1978), cert. denied, 440 U.S. 916 (1979).
Cardiac Event
Two weeks before trial and two and a half weeks
after the jury was impanelled, Stevens was hospitalized on
November 11, 1995. Stevens was diagnosed with a threatened
Stevens' accident] as an example."
-9-
9
anterior septal myocardial infarction5 and was released on
November 14, 1995. The parties agreed that the cardiac event
was not caused in any way by Stevens' accident or consequent
injuries.
The Railroad was not permitted to cross-examine
Stevens about his cardiac event or to introduce the medical
records into evidence. The Railroad argued that such
examination was pertinent to Stevens' life and work
expectancy. The court excluded all evidence about the
cardiac event because the Railroad failed to proffer expert
testimony to link it to life expectancy or work expectancy.
Absent such testimony the court felt that the evidence would
have been speculative and unduly prejudicial. The trial
court also excluded the evidence in part based on its
understanding "that any independent event that the defendant
is not responsible for in reference to his health and
condition could not be considered by [the jury] for purposes
of awarding damages."
This latter basis for the trial court's ruling was
erroneous. If post-accident health problems have an impact
on a plaintiff's ability to work or on his life expectancy
and arise independently of the accident, defendant is
entitled to adduce evidence of such problems in an effort to
5. An impending heart attack was averted by treatment at the
hospital.
-10-
10
reduce a potential damages award. In FELA cases plaintiff
must prove pre-injury and post-injury earning potential.
Quinones-Pacheco v. American Airlines, 979 F.2d 1, 6-7 (1st
Cir. 1992). As the Sixth Circuit held in a FELA case, Harris
v. Illinois Cent. R.R., 58 F.3d 1140 (6th Cir. 1995):
If [plaintiff] had died in 1992 of a
heart attack unrelated to his fall at
work, the period for which his estate
could recover lost earnings would have
been cut off at the point of death. See
Dixon v. International Harvester Co., 754
F.2d 573, 588-90 (5th Cir. 1985). If his
heart condition would have rendered him
incapable of working as a carman,
similarly, we think it would be error to
allow testimony on his potential earnings
as a carman beyond the point at which his
work as a carman would have had to cease
even if he had never injured his leg and
back.
Id. at 1144-45; accord Agosto v. Trusswal Sys. Corp., 142
F.R.D. 118, 120 (E.D. Pa. 1992); Smith v. Southland Corp.,
738 F. Supp. 923, 926 (E.D. Pa. 1990).
That does not mean the trial judge erred in
excluding the evidence, particularly in light of his
alternative grounds for doing so. A decision to exclude
evidence is reviewed for abuse of discretion. Blinzler, 81
F.3d at 1158. Here, the Railroad commendably concedes that
in the ordinary course, evidence of unrelated post-accident
health problems without medical testimony as to their effect
on plaintiff's life and work expectancy would be unduly
speculative. See, e.g., Meller v. Heil Co., 745 F.2d 1297,
-11-
11
1303 (10th Cir.) (excluding evidence of the decedent's drug
use in a wrongful death action in part due to the absence of
a medical foundation for the defendant's claim that the
decedent's life expectancy would have been diminished by his
drug use), cert. denied, 467 U.S. 1206 (1984). The Railroad
says that it did not have enough time to develop such
testimony, that the court denied its motion for a
continuance,6 and that the exclusion was therefore error.
Although close, we find no abuse of discretion in
light of three factors. First, the timing, while difficult,
was far from impossible. The Railroad acknowledges that it
received notification of the plaintiff's myocardial event at
least ten days before the trial was scheduled to begin.
Nothing prevented the defendant from starting to look for an
expert witness at that time. The Railroad was promptly given
the medical records, and it interviewed the attending
physician. The defendant did not begin to put on its case
until December 4, effectively giving it over two weeks
(albeit subject to the Thanksgiving holiday weekend), to
locate an expert witness.
6. The Railroad's request for a continuance was based on its
representation that it needed to investigate the issue
further. The court denied the continuance based on that
representation and directed plaintiff's counsel to give the
defense all the medical information it had. The hospital
records were promptly provided. No specific request was made
for a continuance in order to locate an expert witness.
-12-
12
Second, there is very little evidence establishing
prejudice to the Railroad. There was no offer of proof as to
what a potential cardiologist expert witness would say to
link the cardiac event causally to the legal issues. We are
left not knowing whether there is, in fact, any colorable
claim of linkage. There is not even a clear record of when
the Railroad first received the hospital records or what
steps it took in response, although at oral argument both
counsel attempted to recreate the sequence from memory.
Third, during the trial, well after it received
notice of the plaintiff's cardiac event, the Railroad entered
into a stipulation based on mortality tables as to the life
and work expectancy of a typical man of plaintiff's age who
was of average health. The jury was instructed that it could
consider the stipulation along with other evidence. In the
face of the stipulation and the absence of even a proffer to
link the cardiac event to plaintiff's life and work
expectancy, it was hardly an abuse of discretion for the
court to exclude the evidence.
Vocational Testimony
Similarly, we reject the challenge to the testimony
of plaintiff's vocational expert. The Railroad says the
testimony lacked adequate factual basis and complains that it
was sandbagged when, on cross-examination, it learned for the
first time that the expert had updated her research just
-13-
13
before and during the trial in violation of a pre-trial
scheduling order (and, although not mentioned by the
defendant, of Fed. R. Civ. P. 26(e)(1) as well). A trial
court has wide discretion in determining the admissibility of
expert testimony, and we will reverse its decision only when
there has been a clear abuse of discretion. Allied Int'l,
Inc. v. International Longshoreman's Ass'n., 814 F.2d 32, 40
(1st Cir.), cert. denied, 484 U.S. 820 (1987).
The expert's vocational evaluation report was based
on her review of the plaintiff's medical records and prior
work experience, a meeting with the plaintiff during which
they discussed his skills and interests, and her review of
jobs available in the area. The expert testified that the
information she relied upon was the sort typically used by
persons in her field. The Railroad made no proffer that
vocational experts rely on different types of information
than did plaintiff's expert. We think the foundation laid
was adequate.
As to the expert's last minute research and the
lack of notice to the Railroad, this is a trial management
issue within the trial court's discretion. The trial judge
recognized that the expert adhered to the same opinions which
had been timely disclosed to the Railroad. The court quite
properly offered to instruct the jury that it should
disregard any information the expert acquired after
-14-
14
submitting her report. The Railroad did not take the trial
court up on this offer and did not ask for additional time
before continuing cross-examination. There was no abuse in
the ruling that the violation of the pre-trial scheduling
order did not warrant striking the expert's entire testimony.
Jury Instructions
The Railroad's final claim is that the trial court
improperly instructed the jury on the issue of damages and
that this was sufficiently prejudicial, based on the record
as a whole, to warrant a reversal of the judgment. The
question, one of first impression for this court, is which
side should prevail on this issue in a FELA action when there
is adequate expert testimony that an accident aggravated a
pre-existing condition7 but the jury cannot separate the pain
or disability caused by the pre-existing condition from that
resulting from the accident. We believe that the balance
tips in favor of compensating the FELA plaintiff, and so
uphold the jury instructions.
Ample evidence was presented at trial that Stevens
suffered from degenerative disk disease prior to his February
1994 accident. There was also testimony that degenerative
7. This case does not involve the problem of the
admissibility of the expert's testimony if the expert is
unable to ascertain whether the trauma of the accident would
exacerbate a prior condition of this particular patient. Cf.
Rotman v. National R.R. Passenger Corp., No. 95-P-277, 1996
W.L. 528878 (Mass. App. Ct. Sept. 18, 1996).
-15-
15
disk disease is a process of aging. However, Stevens
presented expert testimony that the accident caused an
aggravation of his pre-existing condition. His treating
physician testified that, while "there must have been some
degenerative disk disease present" before the accident, "it
was silent[,] [s]o he did not feel anything," and that the
accident caused him to feel the condition for the first time.
There was also evidence, however, that plaintiff had
experienced back pain prior to the accident.
The trial judge instructed the jury as follows:
There is evidence in this case that
plaintiff had a pre-existing injury or
condition which existed prior to February
19, 1994. The railroad is only liable
for damages you find to be caused by the
occurrence of February 19, 1994. If you
find that plaintiff's pre-existing
condition made him more susceptible to
injury than a person in good health, the
defendant is responsible for all injuries
suffered by the plaintiff as a result of
the defendant's negligence, even if those
injuries are greater than would have been
suffered by a person in good health under
the same circumstances.
If you find that defendant
negligently caused further injury or
aggravation to plaintiff's pre-existing
condition, plaintiff is entitled to
compensation for all of plaintiff's
damages caused by the incident, including
that further injury or aggravation. If
you cannot separate the pain or
disability caused by the pre-existing
condition from that caused by the
occurrence of February 19, 1994, then the
defendant is liable for all of
plaintiff's injuries.
-16-
16
The defendant takes issue with the last sentence. However,
the instructions correctly stated the law.
It is true that as a general matter, when a
defendant's negligence aggravates a plaintiff's pre-existing
health condition, the defendant is liable only for the
additional increment caused by the negligence and not for the
pain and impairment that the plaintiff would have suffered
even if the accident had never occurred. See, e.g., Evans v.
United Arab Shipping Co., 790 F. Supp. 516, 519 (D.N.J.
1992), aff'd, 4 F.3d 207 (3d Cir. 1993); cf. Shupe v. New
York Cent. Sys., 339 F.2d 998, 1000 (7th Cir.), cert. denied,
381 U.S. 937 (1965). Contrary to the defendant's premise,
the jury was so instructed here. But that general statement
of law does not provide a complete response to the question
of which party prevails when the harm due to the pre-existing
condition is inseparable from the harm due to the accident.
We turn first to the language of the FELA, which
tends to favor the plaintiff but which is not dispositive.
Section 1 of FELA states: "[Defendant] shall be liable in
damages . . . resulting in whole or in part from the
negligence of [defendant, its agents, or employees]." 45
U.S.C. 51 (emphasis added). This language suggests, as the
jury instruction indicated, that once the plaintiff puts
forth credible evidence of causation -- that the Railroad's
negligence has aggravated a pre-existing condition -- the
-17-
17
defendant will be liable for damages even if the jury cannot
separate the amount of harm caused by the accident from the
amount of harm caused by the pre-existing condition.
However, the statutory language does not provide explicit
instructions about the appropriate apportionment of damages
when the causes of plaintiff's disability are inseparable.
More helpful is a consideration of the primary
statutory purpose: "to eliminate a number of traditional
defenses to tort liability and to facilitate recovery in
meritorious cases." Atchison T. & S.F. R.R. v. Buell, 480
U.S. 557, 561 (1987). "Specifically, the statute abolished
the fellow servant rule, rejected the doctrine of
contributory negligence in favor of that of comparative
negligence, and prohibited employers from exempting
themselves from FELA through contract; a 1939 amendment
abolished the assumption of risk defense." Gottshall, 114 S.
Ct. at 2404. Allowing a defendant to escape liability
because of the jury's inability to separate the disability
due to plaintiff's pre-existing condition from that due to
the accident would prevent the plaintiff from recovering
damages for the aggravation in what the factfinder has
determined to be a meritorious case. This would defeat the
remedial purpose of the statute.8
8. Indeed, FELA and other federal statutes incorporate the
"eggshell skull" rule to prevent defendant from avoiding
liability in certain cases. See, e.g., Jordan v. Atchison,
-18-
18
When the statutory language and purpose are not
dispositive, "[t]he third resort of puzzled courts is to
policy, principally the policy Congress was seeking to
implement in adopting the statute." Wilson v. Bradlees, No.
95-2293, 1996 WL 534913, at *4 (1st Cir. Sept. 25, 1996).
While we are aware that FELA interpretation is a matter of
federal law, the Act is founded on common law concepts
subject to explicit statutory qualifications. Id. It is
therefore appropriate to look to the Restatement of Torts for
guidance on the relevant policy issues, as indeed the Supreme
Court and the courts of appeals have done in the past. See,
e.g., Gallick v. Baltimore & O. R.R., 372 U.S. 108, 120
(1963); Buckley v. Metro-North Commuter R.R., 79 F.3d 1337,
1346 (2d Cir. 1996); Lockard v. Missouri Pac. R.R., 894 F.2d
299, 305 (8th Cir.), cert. denied, 498 U.S. 847 (1990).
The Restatement provides some assistance in its
discussion of apportionment of indivisible damages,
explaining:
T. & S.F. Ry., 934 F.2d 225, 228-29 (9th Cir. 1991) (FELA
case noting that it is a well-settled principle of tort law
that the defendant must take the plaintiff as it finds him);
cf. Avitia v. Metropolitan Club of Chicago, 49 F.3d 1219,
1227-28 (7th Cir. 1995) (same under Fair Labor Standards
Act); Doty v. Sewall, 908 F.2d 1053, 1059 (1st Cir. 1990)
(same under Landrum-Griffin Act). And the principle that
indivisible harm results in imposing full liability on
defendants is recognized in other areas of federal law as
well. See, e.g., Price v. United States Navy, 39 F.3d 1011,
1018 (9th Cir. 1994) (CERCLA).
-19-
19
Where two or more causes combine to
produce such a single result, incapable
of division on any logical or reasonable
basis . . . the courts have refused to
make an arbitrary apportionment . . . and
each of the causes is charged with
responsibility for the entire harm.
Restatement (Second) of Torts 433A(2) cmt. i, at 439
(1965). Thus, a defendant gets the benefit of apportionment
of harm only if "there is a reasonable basis for determining
the contribution of each cause to a single harm." Id.
433A(1)(b), at 434. If not, the defendant is liable for the
whole. According to 433A, both the defendant's negligence
and the plaintiff's pre-existing condition are deemed the
cause of the entire harm, thus imposing the burden of the
whole on both. But this tie is broken by the congressional
intent to implement a policy benefitting injured railway
workers.9
An additional policy argument that supports
upholding the jury instruction may be found in the
Restatement's discussion of the related question of who has
9. The illustrations for the above quoted Restatement
comments are primarily taken from cases involving multiple
tortfeasors. However, the Restatement indicates that "[s]uch
entire liability is imposed where some of the causes are
innocent . . . ." Id. 433A(2) cmt. i, at 439; cf. id. app.
at 140 (1966) (noting that "as to an original injury followed
by negligent treatment," the treating physician "is liable
only for the aggravation he has caused"). The instant case
is closely analogous, and the parallel between aggravation of
a pre-existing condition and the harm caused by multiple
tortfeasors has been drawn by several courts. See, e.g.,
Lovely v. Allstate Ins. Co., 658 A.2d 1091, 1092 (Me. 1995).
-20-
20
the burden as to apportionment of damages when such an
apportionment is possible:10
The reason for the exceptional rule
placing the burden of proof as to
apportionment upon the defendant or
defendants is the injustice of allowing a
proved wrongdoer . . . to escape
liability . . . . In such a case the
defendant may justly be required to
assume the burden of producing that
evidence, or if he is not able to do so,
of bearing the full responsibility.
Id. 433B(2) cmt. d, at 444.11 The comment concludes, "As
between the proved tortfeasor who has clearly caused some
harm, and the entirely innocent plaintiff, any hardship . . .
should fall upon the former." Id.
10. At trial, defendant asked for a jury instruction
indicating that if the causes of plaintiff's injuries were
separable, plaintiff had the burden of proof on the extent to
which the accident caused the aggravation of the pre-existing
condition. Because this case involves an instruction on
indivisible injuries, we need not decide the question of who
bears the burden as to aggravation of a pre-existing
condition when the damages are separable. However, to the
extent that the Railroad is contending that plaintiff bears
the entire burden of proving damages, we note that this
argument is undercut by the statutory scheme, which makes
comparative negligence an affirmative defense. But cf. Dale
v. Baltimore & O. R.R., 552 A.2d 1037, 1041 (Pa. 1989) (in
FELA case, it was error to instruct jury that "if it found
the railroad negligent, the railroad was responsible for the
entirety of damages, whether or not its negligence caused
those damages in whole or in part," because implicit in the
comparative negligence scheme is the principle that defendant
is only liable to the extent that its negligence causes harm,
whether the other causes are the employee's own negligence or
a pre-existing health condition).
11. The rule placing the burden as to apportionment on the
defendant has also been adopted by at least one court
interpreting a similar federal statute. Maurer v. United
States, 668 F.2d 98, 100 (2d Cir. 1981) (Public Vessels Act).
-21-
21
The primary policy argument against shifting the
burden of proving apportionment to defendant is that
plaintiff is in the better position to prove what portion of
his injuries was caused by the accident. LaMoreaux v. Totem
Ocean Trailer Express, Inc., 632 P.2d 539, 545 (Alaska 1981).
However, given discovery of medical records and the
availability of medical examinations of plaintiff by
defendant's doctor, Fed. R. Civ. P. 35, it is not unfair to
place on defendant that burden and the consequences of not
meeting it.
We therefore think the better rule, particularly in
light of FELA's broad remedial purposes, is that if the
factfinder cannot separate injuries caused or exacerbated by
the accident from those resulting from a pre-existing
condition, the defendant is liable for all such injuries.12
Affirmed.
12. Cf. Varhol v. National R.R. Passenger Corp., 909 F.2d
1557, 1564 (7th Cir. 1990) (upholding use of interrogatories
asking jury "to determine what portion of [plaintiff's]
condition . . . resulted from the [accident], and, if it
could determine that portion, to take it into account in
determining damages" (emphasis added)).
-22-
22