McGrath v. Consolidated Rail Corp.

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 97-1063

MICHAEL MCGRATH,
Plaintiff - Appellant,

v.

CONSOLIDATED RAIL CORPORATION,
Defendant - Appellee.

No. 97-1064

MICHAEL MCGRATH,
Plaintiff - Appellee,

v.

CONSOLIDATED RAIL CORPORATION,
Defendant - Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Torruella, Chief Judge,

Godbold,* Senior Circuit Judge,

and Barbadoro,** District Judge.

* Of the Eleventh Circuit, sitting by designation.

** Of the District of New Hampshire, sitting by designation.

Alan D. Voos, with whom Collins, Collins & Kantor, P.C. was

on brief for appellant Michael McGrath.
Leonard F. Zandrow, Jr., with whom Michael B. Flynn and

Brister & Zandrow, LLP were on brief for appellee Consolidated

Rail Corporation.

February 12, 1998

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TORRUELLA, Chief Judge. On June 13, 1995, plaintiff-
TORRUELLA, Chief Judge.

appellant Michael McGrath ("McGrath") commenced this action for

personal injuries he suffered as an employee of defendant-

appellee Consolidated Rail Corporation ("Conrail"). McGrath

alleges that Conrail was negligent in failing to provide him with

a safe work place pursuant to the Federal Employers' Liability

Act ("FELA"), 45 U.S.C. 51 et seq., and was liable under the

Federal Boiler Inspection Act ("Boiler Act"), 45 U.S.C. 23,1

for requiring him to work with a locomotive that was in a

defective condition. After a jury trial, the district court

entered judgment in favor of Conrail on both the negligence and

Boiler Act claims.

McGrath appeals on three grounds. Appellant argues

that the trial court erred (1) in allowing into evidence

McGrath's receipt of collateral source benefits; (2) in

submitting to the jury the legal question of whether the

locomotive in question was "in use" for purposes of the Boiler

Act; and (3) in instructing the jury on the Boiler Act claim.

Conrail cross-appeals on the issue of whether the Boiler Act

applies to the facts of this case. We find no abuse of

discretion with respect to the admission of collateral source

evidence. However, the district court erroneously submitted the

"in use" question to the jury. As a matter of law, we find that

1 Although the Boiler Act was recodified on July 5, 1994, see 49

U.S.C. 20701, we will refer to 23 because that provision was
in effect at the time of McGrath's injury. In addition, in
charging the jury, the district court applied 23.

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the Boiler Act applies to the instant case. Accordingly, we

affirm the jury verdict for the employer on McGrath's negligence

theory, but vacate and remand the verdict for Conrail on his

Boiler Act claim.

I. BACKGROUND
I. BACKGROUND

On appeal, we summarize the facts in the light most

favorable to the verdict-winner, consistent with record support.

See Wainright Bank & Trust Co. v. Boulos, 89 F.3d 17, 19 (1st

Cir. 1996). McGrath was a Conrail engineer employed as a

"shifter," or an engineer for short runs, who usually moved

trains between local depots. He was responsible not only for

operating the train, but also for attaching individual cars to

the locomotive. On March 21, 1994, he reported to work at

Conrail's Beacon Park office in Allston, Massachusetts. McGrath

was the engineer on a job identified by Conrail symbol "WABP-11."

The crew that worked WABP-11 consisted of an engineer (McGrath),

a conductor, and a brakeman. The train used to perform WABP-11

was made up of at least one locomotive and several railroad cars.

On March 21, 1994, the WABP-11 was scheduled to service Conrail's

industrial customers in South Boston.

McGrath was assigned to locomotive number 2013, which

was coupled back-to-back with another locomotive. McGrath

approached both locomotives, which had their engines running, and

boarded the second locomotive to cross over into locomotive

number 2013. As soon as he entered the cabin of number 2013,

McGrath started to walk toward the daily inspection card. In the

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cabin, McGrath lost his balance when he stepped on an acorn-

shaped nut. He prevented himself from falling by grabbing the

four-foot high engineer's control stand. Consequently, he

suffered injuries to his shoulder, neck and back. One of

Conrail's defenses at trial was that McGrath was malingering,

i.e., feigning physical disability to avoid work and to continue

receiving disability payments. For purposes of rendering its

verdict, the jury assumed that the accident described above did

occur.

II. DISCUSSION
II. DISCUSSION

A. Collateral Source Evidence
A. Collateral Source Evidence

McGrath argues that the district court committed

reversible error by allowing into evidence his collateral sources

of income, including disability pension payments under the

Railroad Retirement Act and supplemental credit disability

insurance payments on his automobile. Under the collateral

source rule, the plaintiff need not offset his or her recovery

from the defendant by the amount of any benefits received from a

source collateral to the defendant. See Lussier v. Runyon, 50

F.3d 1103, 1107 (1st Cir. 1995). The rule mitigates the danger

of the jury finding no liability or reducing a damage award "when

it learns that plaintiff's loss is entirely or partially

covered." Moses v. Union Pac. R.R., 64 F.3d 413, 416 (8th Cir.

1995); see also Tipton v. Socony Mobil Oil Co., 375 U.S. 34, 36-

37 (1963) (per curiam). However, the rule is not absolute and

courts have carved out exceptions to the collateral source

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doctrine. See Moses, 64 F.3d at 416 (allowing collateral source

evidence where the plaintiff's case itself has made the existence

of such evidence of probative value); Santa Mar a v. Metro-North

Commuter R.R., 81 F.3d 265, 273 (2d Cir. 1996) (holding

collateral source evidence admissible if plaintiff puts financial

status at issue); Simmons v. Hoegh Lines, 784 F.2d 1234, 1236

(5th Cir. 1986) (finding collateral source evidence admissible

for limited purpose of proving another matter if little

likelihood of prejudice and no strong potential for improper use,

and a careful qualifying jury instruction is given). We review

the trial court's admission of collateral source evidence for

abuse of discretion. See Blinzler v. Marriott Int'l, Inc., 81

F.3d 1148, 1158 (1st Cir. 1996).

According to McGrath, the Supreme Court's decision in

Eichel v. New York Cent. R.R. Co., 375 U.S. 253 (1963) (per

curiam), applies to his FELA action and mandates the exclusion of

collateral source evidence in such cases. In Eichel, the Court

held that evidence of disability payments under the Railroad

Retirement Act was inadmissible due to the fact that the

likelihood of misuse by the jury clearly outweighed the value of

such evidence. See id. at 317. In particular, the Supreme Court

noted that "[i]nsofar as the evidence bears on the issue of

malingering, there will generally be other evidence having more

probative value and involving less likelihood of prejudice than

the receipt of a disability pension." Id.

We do not read Eichel as requiring the per se exclusion

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of collateral source evidence in FELA cases. As we noted in

DeMedeiros v. Koehring Co., 709 F.2d 734 (1st Cir. 1983), the

narrower question in Eichel was simply "whether or not to uphold

the district court's discretionary ruling." 709 F.2d at 741.

Indeed, although the Supreme Court decided Eichel prior to the

enactment of the current Federal Rules of Evidence, the analysis

in the Eichel decision "does not appear inconsistent with Rule

403." Savoie v. Otto Candies, Inc., 692 F.2d 363, 371 n.8 (5th

Cir. 1982). Rule 403 "confer[s] broad discretion upon the

district court to weigh unfair prejudice against probative

value." 709 F.2d at 741.

In the instant case, we find that the trial judge did

not abuse his discretion in allowing the receipt of collateral

source benefits into evidence under a Rule 403 balancing. As its

motion in limine to admit the collateral source evidence argues,

Conrail offered the evidence of McGrath's disability payments on

the issue of McGrath's credibility. Specifically, Conrail

presented collateral source evidence to show McGrath's lack of

motivation for returning to work. In allowing Conrail to

question McGrath about collateral source evidence, the district

court, on several occasions, issued cautionary instructions to

the jury, advising it to consider the evidence only on the issue

of malingering. In one instance where McGrath's tax return was

admitted into evidence, the court specifically noted that "any

references in there to [collateral] sources of income are not to

reduce any compensation he may receive here or to increase it,

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but only on the issue of his motivation to go back to work . . .

."

In oral argument, McGrath's attorney argued that such

instructions did not cure the defect because Eichel precludes the

use of such evidence on the precise issue of malingering.

However, we do not believe that the Eichel court established a

bright-line rule barring the admission of collateral source

evidence on the issue of malingering. The Supreme Court simply

determined that the district court abused its discretion because

the prejudicial impact of the evidence outweighed its probative

value. Here, we come to the opposite conclusion. "If there is

little likelihood of prejudice and no strong potential for

improper use, and a careful qualifying jury instruction is given,

then receipt of compensation benefits may be admissible for the

limited purpose of proving another matter." Simmons v. Hoegh

Lines, 784 F.2d 1234, 1236 (5th Cir. 1986); see also Phillips v.

Western Co. of N. Am., 953 F.2d 923, 930 (5th Cir. 1992). We

find that the district court properly allowed testimony regarding

collateral source income, and thus, we need not reach Conrail's

argument that McGrath failed to preserve the issue on appeal.

McGrath also objects to several questions at trial

about the value of a home he and his wife were planning to build

on a lot in Florida. McGrath interjected a timely objection to a

specific question about the home's value and the district court

sustained it before the witness, McGrath's wife, could respond.

After the objection was sustained, Conrail asked no further

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questions about the lot or the home. Under these circumstances,

we see no reversible error.

B. Applicability of Boiler Act
B. Applicability of Boiler Act

Conrail cross-appeals the district court's orders

denying its motion and renewed motion for judgment as a matter of

law. Conrail argues that, as a matter of law, the Boiler Act

does not apply to McGrath's circumstances because the locomotive

in question was not "in use" for purposes of the Act. The Boiler

Act provides in pertinent part:

It shall be unlawful for any carrier to use

or permit to be used on its line any

locomotive unless said locomotive, its
boiler, tender, and all parts and
appurtenances, thereof are in proper
condition and safe to operate in the service
to which the same are put, that the same may
be employed in the active service of such
carrier without unnecessary peril to life or
limb, and unless said locomotive, its boiler,
tender and all parts and appurtenances
thereof have been inspected . . . .

45 U.S.C. 23 (emphasis added). Whether a locomotive is "in

use" under the Act is "a question of law for the trial court to

decide and not a question of fact for the jury." Pinkham v.

Maine Cent. R.R. Co., 874 F.2d 875, 881 (1st Cir. 1989).

Absolute liability under the Act arise only if the locomotive in

question is "in use." See Crockett v. Long Island R.R., 65 F.3d

274, 277 (2d Cir. 1995). We review de novo questions of law.

See UNUM Corp. v. United States, 130 F.3d 501, 502 (1st Cir.

1997).

"Congressional intent and the case law construing the

statute clearly excludes those injuries directly resulting from

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the inspection, repair and servicing of railroad equipment

located at a maintenance facility." Angell v. Chesapeake and

Ohio Ry. Co., 618 F.2d 260, 262 (4th Cir. 1980). In addressing

the "in use" question, this court in Pinkham observed that "the

determinative factors are the location of the locomotive at the

time of the injury and the activity of the injured party . . . ."

874 F.2d at 882. A locomotive may still be considered "in use"

although it is motionless. See Crockett, 65 F.3d at 277; see

also Brady v. Terminal R.R. Ass'n of St. Louis, 303 U.S. 10, 13

(1938).

The facts of this case do not lend themselves to an

easy answer. Locomotive 2013 was neither being serviced in a

place of repair, nor operating on Conrail's main line. Instead,

the locomotive was idling on a yard track, which is located

within the confines of a railroad yard. Yard tracks are used to

store, inspect, classify and switch locomotives and railroad

cars. In addition, although McGrath was part of a transportation

crew, he was also required, as the engineer, to perform certain

inspection duties before moving the locomotive.

However, we agree with the district court's resolution

of this issue in its order denying Conrail's pre-trial summary

judgment motion. The locomotive in question was not being stored

on the yard track or awaiting removal to the engine house for

repairs. Rather, "locomotive number 2013 was running on the yard

track and ready to move into service." McGrath v. Consolidated

Rail Corp., 943 F. Supp. 95, 97 (D. Mass. 1996). Furthermore, as

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the district court noted, McGrath's inspection duties were

"'incidental to [the] task of operating the train as an

engineer.'" Id. citing Rivera v. Union Pac. R.R. Co., 868 F.

Supp. 294, 301 (D. Colo. 1994). We hold that the Boiler Act

applies to the instant case. Accordingly, we need to address

McGrath's grounds for dismissal relating to the Boiler Act.

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C. The Jury Instructions
C. The Jury Instructions

McGrath argues that the district court erred in

submitting to the jury the legal question whether the Boiler Act

applies to the instant case. We review the trial court's

instructions to the jury for abuse of discretion. See United

States v. Shadduck, 112 F.3d 523, 526 (1st Cir. 1997). The

district court submitted the following instructions, in pertinent

part, to the jury:

Mr. McGrath claims that the Boiler Act
was violated and that as a consequence of the
violation that was at least one of the causes
of injury to him for which he suffered
damage. So the first thing you want to
consider under the Boiler Act is the question
of whether the Boiler Act applies to him.
The congressional intent and the case law

construing the Boiler Act excludes from its

coverage those injuries directly resulting

from the inspection, repair or servicing of

railroad equipment located at a maintenance

facility. These injuries are excluded from

the Boiler Act because they occur in the
course of functions necessary to discover and
correct the unsafe conditions prohibited by
the Boiler Act.
So the first question under the Boiler
Act is, is Mr. McGrath, and he's got to prove
it by a fair preponderance of the evidence,
is he excluded under what I've just told you,
or is he included, is he able to recover
under the Boiler Act?

Transcript at 627-28 (emphasis added). We reiterate that whether

a locomotive is "in use" is "a question of law for the trial

court to decide and not a question of fact for the jury."

Pinkham, 874 F.2d at 881. However, the instructions above ask

the jury to decide this legal issue.

In instructing the jury, the district court repeats

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almost verbatim the legal considerations the Fourth Circuit

employed in Angell. Compare jury instructions above (emphasized

language) with 618 F.2d at 262 ("[c]ongressional intent and the

case law construing the statute clearly excludes those injuries

directly resulting from the inspection, repair and servicing of

railroad equipment located at a maintenance facility"). However,

in Angell, the court itself resolved the issue rather than

remanding it for consideration by a jury. That was the proper

course.

In the instant case, the jury rendered a general

verdict for Conrail on McGrath's Boiler Act theory. In reaching

its verdict, the jury may have decided that, as a threshold

matter, the Boiler Act did not apply to the facts of McGrath's

case. In that instance, it did not need to reach the issue of

Conrail's liability under the Act. Alternatively, the jury may

have determined that the Boiler Act did apply but Conrail was not

liable under the Act. From the general verdict, we cannot tell

whether the jury's verdict was based on an improper determination

of the "in use" question. The record does reflect that the jury

did consider this threshold issue. One jury question to the

judge was: "Is there any case law that extends the Boiler Act

exclusion regarding inspection and repair to inspections and

repair outside the maintenance yard?" Under these circumstances,

we must vacate the verdict as to the Boiler Act claim and remand.

See Dillard & Sons Constr., Inc. v. Burnup & Sims Comtec, Inc.,

51 F.3d 910, 916 (10th Cir. 1995) ("erroneous submission of a

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legal question to a jury compels reversal when the jury returns a

general verdict, creating uncertainty as to whether the jury

relied upon an improper resolution of the legal issue"). Since

we remand for new trial on the Boiler Act theory, we need not

reach McGrath's last ground for reversal, which argued that the

district court erred in instructing the jury on Boiler Act

liability.

III. CONCLUSION
III. CONCLUSION

For the foregoing reasons, we affirm the jury verdict
affirm

for appellee on McGrath's negligence claim, but with respect to

the jury verdict on the Boiler Act claim, we vacate and remand to
vacate remand

the district court for proceedings in accordance with this

opinion.

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