Granfield v. CSX Transportation, Inc.

United States Court of Appeals
For the First Circuit

No. 09-1302

ROBERT GRANFIELD,

Plaintiff, Appellee,

v.

CSX TRANSPORTATION, INC.,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

Before

Lynch, Chief Judge,
Torruella and Boudin, Circuit Judges.

Michael B. Flynn, with whom Carolyn M. Blake, Seth C. Turner,
and Flynn & Wirkus, P.C., were on brief for appellant.
Patrick J. Donoghue, with whom Collins, Collins & Donoghue,
P.C., was on brief for appellee.

March 12, 2010
 TORRUELLA, Circuit Judge. Defendant-appellant CSX

Transportation, Inc. ("CSXT") is appealing from the district

court's denial of its motion for judgment as a matter of law or a

new trial, after a jury awarded $250,000 to plaintiff-appellee

Robert Granfield ("Granfield"), based on a finding that CSXT

violated both the Federal Employer's Liability Act ("FELA"), 45

U.S.C. § 51 et seq., and the Locomotive Inspection Act ("LIA"), 49

U.S.C. § 20701 et seq. Granfield, a locomotive engineer employed

by CSXT, claimed he developed lateral epicondylitis,1 or "tennis

elbow," as a result of having to manipulate defective controls

found in the cabin of his locomotive. After a ten-day trial and

the district court's denial of several dispositive motions by CSXT,

the jury returned a verdict in favor of Granfield.

CSXT appeals from the judgment and claims the district

court erred in: (1) not dismissing the case under the FELA statute

of limitations; (2) allowing Granfield's medical expert witness to

testify on causation; (3) admitting a letter containing irrelevant

and prejudicial statements, even though the district court

overruled itself and eventually held the letter inadmissible; (4)

refusing to order a new trial despite Granfield's counsel's

allegedly improper statements at closing argument; and (5) denial

1
Lateral epicondylitis is defined as inflammation and pain over
the outer side of the elbow involving the lateral epicondyle of the
humerus usually resulting from excessive or violent twisting
movements of the hand. Webster's Third New International
Dictionary Unabridged 2356 (2002).

-2-
of its motions for a new trial or judgment notwithstanding the

verdict based on the cumulative error doctrine. After careful

review of each issue in this highly contested case, we find no

error by the district court and therefore affirm the jury verdict.

I. Background2

We begin by briefly describing Granfield's work history,

the alleged condition of the equipment he was required to operate,

and the statutory framework that governs this case.

Granfield was a railroad worker for over thirty years.

From 1978 until April 2000, he worked as a locomotive engineer,

road foreman, and trainmaster for Consolidated Rail Corporation and

the Massachusetts Bay Transportation Authority. On April 1, 2000,

he began working for CSXT as a locomotive engineer, primarily based

out of Framingham, Massachusetts. On March 6, 2006, he underwent

surgery in his right elbow, and has been unemployed since.3

While employed by CSXT, Granfield was required to operate

almost exclusively the GP40 6200 series locomotives. As part of

the normal operation of these locomotives, he manipulated an array

of controls, among them the alerter buttons, brake levers,

reverser, sander, throttle, and whistle. Of concern to us here are

2
We present these facts in the light most favorable to the
verdict.
3
Granfield testified at trial that he was currently unemployed
and that the last time he worked was on March 5, 2006.

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the alerter buttons and throttles, which Granfield claims were

defective and the cause of his injuries.4

The alerter is a device that triggers an audible warning

that automatically sounds at various intervals while the locomotive

is being operated, in order to prevent an engineer from falling

asleep at the controls. This mechanism is reset by simply pressing

a button. The throttle is important for locomotive engineers as it

helps them adjust the speed of the locomotive. It works by

regulating the output horsepower generated by the engine, which in

turn influences the train's speed. The throttle is controlled by

sliding its handle with no more force than is required to turn a

door handle.5

Granfield testified that he had experienced problems with

the throttles in the GP40 6200 locomotives since beginning to work

for CSXT in 2000. Mainly, he complained that the placement of the

throttle would not correspond with engine output, and as a result

he had to "jiggle" the throttle handle back and forth until the

desired speed was achieved.

4
Although in his complaint Granfield cited other deficiencies
with the locomotives he operated, at trial the weight of the
evidence Granfield presented was aimed at proving that only the
throttles and alerter buttons malfunctioned and caused his
injuries.
5
When functioning properly, which Granfield contends they were
not.

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 Granfield also complained that the alerter was sounding

too frequently, which caused him to push the alerter button more

often than would normally be required. Depending on the model of

the locomotive, these buttons were sometimes located in

uncomfortable locations in the cabin and sometimes had to be

"smacked" in order for them to deactivate the alerter.

It is unclear exactly when Granfield began to experience

symptoms in his elbows. At his deposition, he stated that he had

experienced pain in his left elbow in April 2003. During the

trial, he testified that he began feeling pain in his left elbow

around February or March 2003. He testified that his arm was

aching and sore to the touch. He also testified at trial that his

arm felt swollen and his little finger in both hands tingled,

resembling a numbing sensation.

On May 28, 2003, due to the pain in his elbow and

tingling of his little fingers, Granfield visited Dr. Chakraborty,

a cardiologist who had treated him in the past for a heart

condition. Granfield complained of pain, stiffness, aching,

burning, tightness of the arm, and tingling in his small finger.

Dr. Chakraborty examined Granfield's elbow and noticed "some kind

of inflammation," but testified that he did not know what was

causing the inflammation. Dr. Chakraborty then referred Granfield

to an orthopedic surgeon -- Dr. Carl Spector -- for further

treatment. Dr. Chakraborty testified at that he did not remember

-5-
whether Granfield mentioned that he thought his pain was related to

his work at the time.

On July 8, 2003 Granfield paid a visit to Dr. Spector.

During this visit, Dr. Spector noted that Granfield reported he had

been experiencing symptoms in his left elbow for approximately

eight months (i.e., since December 2002, which was inconsistent

with Granfield's testimony). Granfield also informed Dr. Spector

that his symptoms manifested themselves gradually and progressively

worsened. After an examination and long discussion with Granfield,

Dr. Spector diagnosed him with lateral epicondylitis in the left

elbow.

Dr. Spector determined that Granfield's lateral

epicondylitis was being caused by the repetitive back and forth

manipulation of what he deemed to be "levers" inside the locomotive

cabin. Granfield maintained throughout the trial that it was

during this visit that he first became aware of the connection

between his work activities and his injury.

After his July 8, 2003 visit, Granfield continued seeing

Dr. Spector for followup treatment. During one of these visits, on

January 21, 2005, Dr. Spector diagnosed Granfield with bilateral

epicondylitis of the left and right elbows. In his report

concerning this visit, Dr. Spector noted that Granfield should not

continue working, and recommended physical therapy. After

finishing his physical therapy course, Granfield was reevaluated by

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Dr. Spector on March 4, 2005, and was found to be in good condition

and suffering no pain.

By October 2005, however, Granfield's condition had

deteriorated and he was suffering from significant pain rising from

his right lateral epicondyle (right elbow). During his October 28,

2005 visit, Dr. Spector noted that Granfield had re-injured himself

at work, and diagnosed him with recurrent severe lateral

epicondylitis of the right elbow.

On March 6, 2006, Dr. Spector operated on Granfield's

right elbow. Following the operation, Granfield's condition

improved, although he still suffered from epicondylitis in his left

elbow. In his notes concerning Granfield's visit on November 9,

2006, Dr. Spector mentioned that Granfield would be unable to

continue to work as a locomotive engineer.

On June 19, 2006, Granfield filed a complaint against

CSXT in the U.S. District Court for the Western District of New

York. In it, he charged that CSXT required him to operate

locomotives with malfunctioning equipment, including the alerters

and throttles, which caused him to suffer his injuries. Granfield

also averred that CSXT's failure to adequately maintain its

locomotives was a violation of both FELA, 45 U.S.C. § 51 et seq.,

and LIA, 49 U.S.C. § 20701 et seq.

FELA regulates the liability of railroad common carriers

who engage in interstate or foreign commerce, for injuries

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sustained by their employees due to the carrier's negligence.

Section 1 of the statute states that these interstate railroad

carriers will be liable in damages "to any person suffering injury

while he is employed by such carrier in such commerce." 45 U.S.C.

§ 51. In a FELA liability action by an employee against a railroad

carrier, the principle of contributory negligence and diminution of

damages applies. 45 U.S.C. § 53. Therefore, if an employee's

injuries not only result from the carrier's negligence, but also

from his own, the employee's damages "shall be diminished by the

jury in proportion to the amount of negligence attributable to such

employee." Id. This principle, however, will not apply if the

employee's injury is found to have been contributed to by the

carrier's violation of any statute enacted for the safety of its

employees. Id.6

"Federal decisional law formulating and applying the

concept [of negligence] governs" FELA actions. Urie v. Thompson,

337 U.S. 163, 174 (1949). Section 6 of FELA creates a three-year

statute of limitations for all actions under section 1 of the

statute, counted from the day the cause of action accrued. 45

U.S.C. § 56.

6
In this case, the jury found CSXT 60% negligent under FELA.
However, since the jury also found CSXT had violated the LIA, a
"statute enacted for the safety of its employees," CSXT was
required to pay 100% of Granfield's damages.

-8-
 Granfield also sued under LIA, formerly known as the

Boiler Inspection Act.7 By its own terms, the LIA does not purport

to confer any right of action upon injured employees. Urie, 337

U.S. at 188 (1949). Its role, rather, is to supplement the FELA by

imposing on interstate railroad carriers an absolute and continuing

duty to provide safe equipment. Id. (citing Lilly v. Grand Trunk

W. R. Co., 317 U.S. 481, 485 (1943)). The Urie court concluded

that the legislative intent behind section 1 of FELA was to treat

a violation of the safety standards under the LIA as negligence --

what is sometimes called negligence per se. Urie, 337 U.S. at 188-

89.

Therefore, the LIA, when read in conjunction with section

3 of FELA, fastens strict liability on railroad carriers who

violate its safety standards. In this case, the jury determined

that CSXT had violated the LIA, which liberated Granfield from the

burden of having to prove negligence. He did, however, have to

prove that the condition of the throttles and alerters were

causally related to his injuries. As we discuss below, these

points were highly contested by CSXT.

On August 17, 2006, the case was transferred to the

District of Massachusetts, Western Division. CSXT then filed a

Motion for Summary Judgment dated May 2, 2008, where it argued,

7
The BIA, 45 U.S.C. § 23, was recodified in 1994 as the Federal
Locomotive Inspection Act. See Pub. L. No. 103-272, § 1(a).

-9-
inter alia, that Granfield's claim of bilateral epicondylitis was

time-barred under the FELA three-year statute of limitations. See

45 U.S.C. § 56. After hearing oral arguments on the motion, the

district judge denied CSXT's motion and scheduled the case for

trial.

On October 20, 2008, trial commenced and ten days later,

on October 30, the jury rendered its verdict in favor of Granfield.

In the Special Verdict form issued to the jury, the Court asked it

to find whether or not CSXT was negligent under FELA, and whether

or not CSXT violated the LIA. The jury answered "yes" to both

questions and awarded $250,000 to Granfield.

On October 29, before the jury had returned its verdict,

CSXT had filed a Supplemental Renewed Motion for Judgment as a

Matter of Law, where it basically reargued its statute of

limitations defense. The motion was denied by the district court

on October 31. In its short Endorsed Order denying the motion, the

Court noted that CSXT failed to present its arguments on the

statute of limitations defense to the jury, and never offered them

as part of a proposed special verdict either.

CSXT again filed a Post-Trial Renewed Motion for Judgment

as a Matter of Law, along with a supporting Memorandum of Law on

November 17, 2008. In these documents, CSXT rehashed its statute

of limitations arguments from its previous motions and added

others, based on the arguments adopted by Granfield's counsel

-10-
during closing statements. The district court again denied CSXT's

Motion on February 2, 2009. On March 3, 2009, CSXT entered a

Notice of Appeal. CSXT now maintains that the district court erred

in rejecting its statute of limitations arguments. Specifically,

CSXT appeals from the denial of its May 2, 2008 Motion for Summary

Judgment and its November 17, 2008 Post-Trial Renewed Motion for

Judgment as a Matter of Law.8

II. Discussion

A. Statute of Limitations

i. Applicable Law

For cases where an employee has been injured over a

period of time as the result of continued exposure to unsafe

conditions, rather than as a result of a single traumatic event,

the Supreme Court adopted the discovery rule, thereby recognizing

that a cause of action accrues "only when the accumulated effects

of the deleterious substances manifest themselves." Urie, 337 U.S.

at 170 (citation omitted). Later, in United States v. Kubrick, the

Court rejected "the notion that tort claims in general or

malpractice claims in particular do not accrue until a plaintiff

learns his injury was negligently inflicted," although it left open

the question of whether a plaintiff needs to know the injury's

8
We only review the motion for judgment as a matter of law since
"defendant's motion for summary judgment has been overtaken by
subsequent events, namely, a full-dress trial and an adverse jury
verdict." See Rivera-Torres v. Ortiz Vélez, 341 F.3d 86, 92 (1st
Cir. 2003).

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cause for the purpose of determining accrual. 444 U.S. 111, 119-

20 (1979) (emphasis added).

FELA states that "[n]o action shall be maintained under

this chapter unless commenced within three years from the day the

cause of action accrued." 45 U.S.C.A. § 56. We have previously

interpreted this part of FELA to mean that "plaintiff has the duty

of alleging that he has brought his action in due time." Brassard

v. Boston & Maine R.R., 240 F.2d 138, 141 (1st Cir. 1957) (citing

Am. R. Co. of Porto Rico v. Coronas, 230 F. 545, 547 (1st Cir.

1916) (commenting in dicta that "it was incumbent upon the

plaintiff to allege and prove that his [FELA] cause of action was

brought within the time limited"), overruled on other grounds by

Reading Co. v. Koons, 271 U.S. 58, 60-64 (1926) (additional

citation omitted). Cf. Emmons v. S. Pac. Transp. Co., 701 F.2d

1112, 1118 (5th Cir. 1983) (holding that burden is on claimant to

allege and prove that his cause of action was commenced within the

three-year statute of limitations period); Carpenter v. Erie R.

Co., 132 F.2d 362, 362 (3d Cir. 1942) (dismissing FELA complaint

where it "appear[ed] from the face of the complaint that the

plaintiff's cause of action arose more than fourteen years before

the suit was commenced," because it is "incumbent upon one suing

under the act to allege and prove that his cause of action was

brought within the time limited") (citation omitted); but see

Campbell v. Grand Trunk W. R.R. Co., 238 F.3d 772, 775 (6th Cir.

-12-
2001)(finding that in a FELA case the statute of limitations is an

affirmative defense). Several courts of appeals, as well as our

own, have interpreted both Urie and Kubrick to mean that the three-

year statute of limitations period begins to run when a plaintiff

knows, or should know, of her injury and its cause. Albert v.

Maine Cent. Ry. Co., 905 F.2d 541, 543-44 (1st Cir. 1990); see

e.g., Townley v. Norfolk & W. Ry. Co., 887 F.2d 498, 501 (4th Cir.

1989); Kichline v. Consol. Rail Corp., 800 F.2d 356, 360-61 (3d

Cir. 1986); DuBose v. Kansas City So. Ry. Co., 729 F.2d 1026, 1030-

31 (5th Cir. 1984). In Albert, we also held that once a plaintiff

reaches the conclusion that she has an injury, and that such injury

was caused by her employment, she has a duty to investigate the

situation in order to confirm or deny her belief. Albert, 905 F.2d

at 544.

ii. Scope of Review

We review de novo the district court's denial of CSXT's

motion for judgment as a matter of law, examining "the evidence

presented to the jury, and all reasonable inferences that may be

drawn from such evidence, in the light most favorable to the jury

verdict." Cigna Ins. Co. v. Oy Saunatec, Ltd., 241 F.3d 1, 8 (1st

Cir. 2001) (citation omitted). We will reverse denial of said

motion "only if reasonable persons could not have reached the

conclusion that the jury embraced." Sánchez v. Puerto Rico Oil

Co., 37 F.3d 712, 716 (1st Cir. 1994).

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 iii. Analysis

CSXT contends that Granfield had the burden of proving

his suit was filed in compliance with the FELA statute of

limitations and that Granfield failed to do so, requiring judgment

as a matter of law for CSXT. In its briefs, CSXT essentially

rehashes the arguments it made in its motions for summary judgment

and judgment as a matter of law. Both motions were denied by the

district court, which found that the question of whether Granfield

had complied with the three-year statute of limitations was one for

the trier of fact to decide. We agree.

We have reiterated that

[a]pplication of the discovery rule ordinarily
involves questions of fact and therefore in
most instances will be decided by the trier of
fact. In particular, application of the
discovery rule involves determining what the
plaintiff knew or should have known, which is
a factual question that is appropriate for the
trier of fact. Determining when a plaintiff
had notice of the likely cause of her injury
is one example of such a determination.

Genereux v. Am. Beryllia Corp., 577 F.3d 350, 360 (1st Cir. 2009)

(internal citations and quotation marks omitted). In this case,

CSXT failed to argue to the jury, the trier of fact, that Granfield

did not meet the FELA statute of limitations. Indeed, CSXT failed

to make this an issue at trial at all, and failed to request a

question on the statute of limitations in the special verdict form.

At oral argument, CSXT's counsel explained this was a strategic

decision. CSXT now points to circumstantial evidence presented at

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trial which it argues should have led the district court to

conclude as a matter of law that Granfield knew or should have

known of his injury and its cause more than three years before

filing his complaint.

However, as the district court explained when it rejected

CSXT's statute of limitations arguments on the papers, the question

of when plaintiff's claim arose was a factual one, and plaintiff

put forth sufficient evidence to support its theory that the claim

arose within the limitations period. On review, we view the

evidence in the light most favorable to the nonmovant, Granfield.

In his notes from Granfield's visit to him on July 8,

2003, Dr. Spector noted that Granfield had complained to him of

feeling "symptoms" in his left elbow since December 2002. However,

the record is unclear as to what these symptoms were, and whether

they rose to the magnitude to lead Granfield to consider himself

"injured." Generally, de minimis aches and pains are not

considered to be an injury for the purposes of the FELA statute of

limitations. Green v. CSX Transp., Inc., 414 F.3d 758 (7th Cir.

2005); see also Lancaster v. Norfolk & W. Ry. Co., 773 F.2d 807,

821 (7th Cir. 1985) (rejected on other grounds by Teague v. Nat'l

R.R. Passenger Corp., 708 F. Supp. 1344 (D. Mass. 1989)).

At trial, Granfield specifically testified that he was

feeling pain in his left elbow; aching, soreness, and swelling in

his arm; and tingling in his little finger "around February or

-15-
March 2003." A few months later, in late May 2003, Granfield went

to see his cardiologist, Dr. Chakraborty, who, after examining

Granfield, was unable to diagnose him and thus referred him to Dr.

Spector. Although at this point there may have been enough

evidence presented to the jury to support a finding that Granfield

knew he was injured as of May 2003, the same cannot be said for

Granfield's knowledge of the cause of his injury.

During the visit to Dr. Chakraborty, there apparently was

no discussion of Granfield's work. The first time we know for

certain that Granfield became aware of the possible connection

between his work and his injury was during his visit to Dr. Spector

on July 2003, when Dr. Spector informed him of the connection.

Granfield filed his complaint on June 19, 2006. In order to find

for CSXT, the jury would have to find that Granfield knew or should

have known, before seeing Dr. Spector, that he was injured and that

his employment was the cause of his injuries.

We cannot say, as CSXT requests, that as a matter of law

Granfield should have been able to diagnose himself with

epicondylities, or have known that his condition was caused by his

work as a locomotive engineer. Given all of the evidence presented

by Granfield on this issue, we find that a reasonable jury could

have concluded that Granfield's claim was not time barred, had CSXT

chosen to contest this showing by asking for jury instruction and

arguing the matter to the jury.

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 B. Dr. Spector's Testimony

At trial, Dr. Spector was Granfield's sole medical

causation witness. CSXT first challenged Dr. Spector's testimony

in its May 2, 2008 Motion for Summary Judgment. In its motion,

CSXT argued that Dr. Spector's opinions were inadmissible under the

Federal Rule of Evidence 702 and the seminal case of Daubert v.

Merrell Dow Pharmacy, Inc., 509 U.S. 579 (1993), and its progeny.

The inadmissibility of Dr. Spector's opinions, CSXT argued, would

leave Granfield without any proof as to the element of causation.

This in turn would warrant summary judgment in favor of CSXT.

On June 25, 2008, the district judge heard oral arguments

on the matter, and afterwards entered an oral order denying the

Motion for Summary Judgment. The district judge determined that

[a]s far as causation goes, I think Doctor
Spector's enough to get over the hurdle. He
might not clear it by two feet, but he's over
it, and we'll have an interesting conflict
between the experts on the question of whether
the failure to use reasonable care is casually
related to the tennis elbow.

Prior to trial, on August 18, 2008, CSXT filed a Motion

in Limine to Exclude Plaintiff's Expert, Dr. Carl Spector, from

Testifying. CSXT reargued its position that Dr. Spector's opinions

were not based on sufficient facts or data, or on reliable

scientific methodology. At the Pretrial Conference Hearing on

October 8, 2008, the district court denied CSXT's Motion in Limine

without prejudice.

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 i. Scope of Review

At the time of trial, Dr. Spector had been licensed to

practice orthopedic medicine and surgery in the Commonwealth of

Massachusetts for approximately thirty-five years. He was also a

board certified orthopedic surgeon. Dr. Spector estimated that

every year he treated over a hundred patients with lateral

epicondylitis.

During his testimony at trial, Dr. Spector stated that

the first time he saw Granfield was on July 8, 2003, when he was

referred to his office by Dr. Chakraborty. Dr. Spector also

testified that at this meeting he had a long discussion with

Granfield about the symptoms he was having, as well as Granfield's

work as a locomotive engineer. The following exchange took place

when Granfield's attorney conducted the direct examination of Dr.

Spector:

Q. Did you gain an understanding of basically what
[Granfield] did for work?

A. Yes.

Q. And what was the understanding that you gained?

A. Well, the thing is he has a problem with his elbow.
The thing is he has lateral epicondylitis. So I
then –- most people when they have lateral
epicondylitis, they don't know what they have, one.
Two, they don't know what causes it. So the main
thing is to explain what they have and what causes
it.

So once I went over what it is, then you drive as
an engineer and you're using levers so I explained
to him what is causing it. So it's important for me

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 to know what he does. So he has these levers that
he uses and we discussed it.

Q. And the fact that he --

A. Why you explain it to the patient is so they can
avoid doing what aggravates it or do something to
compensate for it.

Dr. Spector referred to the instruments Granfield was

required to operate as "levers." When asked to demonstrate the

motion that caused Granfield's epicondylitis, Dr. Spector

demonstrated a "back and forth" movement of a "lever," which he

maintained caused Granfield to use the dorsal muscles of his

forearm.

Later on, Granfield's counsel asked Dr. Spector to assume

that the throttles and alerter buttons were defective, and that the

throttle was a lever, while the alerter was a button. The

following question was then asked, over CSXT's objection:

Q. ... Doctor, assuming those facts do you have an
opinion within a reasonable degree of medical
certainty whether or not Mr. Granfield's lateral
epicondylitis in his right elbow was caused by
these repetitive movements associated with
manipulating these defective controls?

...

A. I can state with a degree of medical certainty that
what you said is true. That having to increase
these motions because of the defective working of
these levers caused him to have this condition.

Q. Why do you believe that?

A. It's well known that this type of repetitive injury
causes this condition, lateral epicondylitis, and

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 by having to do these extra repetitive motions
would have caused this injury.

During his cross-examination, Dr. Spector admitted that

he could not quantify the amount of force nor the number of

repetitions that Granfield had to carry out in order to manipulate

the throttles and alerters.

After Dr. Spector's direct examination concluded, CSXT

moved to have his testimony stricken. CSXT reiterated the lack of

a Daubert hearing, and argued that Dr. Spector failed to testify on

the standards of repetition, force, and posture accepted in the

medical community. The district court denied the Motion.

CSXT again maintained that Dr. Spector's opinions were

inadmissible in its November 17, 2008 Post-Trial Renewed Motion for

Judgment as a Matter of Law. In addition, in its Motion for New

Trial filed on the same day, CSXT also claimed that the jury

should have been instructed by the district court that expert

testimony was necessary to prove causation. The district court

denied both motions.

CSXT now appeals from the district court's denial of its

Motion in Limine to Exclude Plaintiff's Expert, dated August 18,

2008; its Post-Trial Renewed Motion for Judgment as a Matter of

Law; and its Motion for New Trial, both dated November 17, 2008.

CSXT argues that Plaintiff's causation expert, Dr.

Spector, should have been precluded from qualifying as an expert on

the cause of Plaintiff's injuries because Dr. Spector's testimony

-20-
was not based upon sufficient facts or data, and also that it was

not based on reliable scientific methodology. In the alternative,

CSXT contends that Dr. Spector's opinion at trial did not provide

sufficient evidence for a rational jury to find for Plaintiff on

the issue of causation. We disagree.

As to CSXT's first contention, we review a district

court's ruling admitting or excluding expert testimony under the

Federal Rules of Evidence for abuse of discretion, Forrestal v.

Magendantz, 848 F.2d 303, 305 (1st Cir. 1988), giving broad

deference to the determination made by the district court as to the

reliability and relevance of expert testimony. Beaudette v.

Louisville Ladder, Inc., 462 F.3d 22, 25 (1st Cir. 2006) (citing

Gen. Elec. Co. v. Joiner, 522 U.S. 136, 143 (1997)); see also

United States v. 33.92356 Acres Of Land, 585 F.3d 1, 7 (1st Cir.

2009).9 CSXT's second argument requires us to review the denial of

the motion for judgment as a matter of law, which we do de novo.

Butynski v. Springfield Terminal R. Co., 592 F.3d 272, 276 (1st

Cir. 2010).

In Daubert, the Court outlined a flexible, non-exclusive

set of criteria for admitting expert testimony. 509 U.S. 593-95.

9
In its brief in chief, CSXT argued that the proper standard of
review was clear error since CSXT had filed a motion in limine to
exclude Dr. Spector's testimony and the district court denied it
without prejudice. We continue to assert that the proper standard
of review of a denial of admission of expert testimony is abuse of
discretion.

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The Court considered (1) whether a theory or technique can be (and

has been) tested; (2) whether the theory or technique has been

subjected to peer review and publication; (3) the known or

potential rate of error; (4) and general acceptance in the relevant

scientific community. Id. at 593-95. "The inquiry envisioned by

Rule 702 is, [the Court] emphasize[d], a flexible one." Id. at 594.

Since Daubert, courts have expanded that criteria to

include, for example, whether the testimony was prepared for the

purpose of the litigation or whether it was something that the

expert did in her ordinary practice. See Johnson v. Manitowoc Boom

Trucks, Inc., 406 F. Supp. 2d 852, 865 (M.D. Tenn. 2005) (noting

that an important factor is whether the expert is testifying about

matters arising naturally and independently of litigation or

whether opinions are developed solely for the purpose of

testifying); Allison v. McGhan Med. Corp., 184 F.3d 1300, 1319-21

(11th Cir. 1999) (affirming trial court's decision to exclude

expert testimony based, in part, on the fact that the expert

created his testimony solely in preparation for trial).

Applying the law to these facts, we first find that CSXT

has failed to clear these hurdles, and that the district court did

not abuse its discretion in admitting Dr. Spector's testimony. Dr.

Spector is an orthopedic surgeon who specializes in repetitive

stress injuries. Dr. Spector regularly diagnoses repetitive stress

injuries, and treats 100 to 150 patients per year for lateral

-22-
epicondylitis. At the time of the trial, Dr. Spector had seen more

than 2,000 cases of epicondylitis.

We agree with the district court that CSXT is "making

something which is relatively simple more complicated." Dr.

Spector testified that repetition causes epicodylitis, and that

more repetition makes it more likely that a patient will develop

lateral epicondylitis. The district court explained:

We have testimony that because of the defect
there was more repetition. Now the jury may
not accept the doctor's testimony on that.
They may believe somebody that says that this
type of repetition can never cause
epicondylitis whether it's a little bit or a
lot, but the essence of the doctor's
testimony, the jury may find, is that he says
this type of movement will cause epicondylitis
and the risk of epicondylitis increases the
more that you have to make that kind of
movement.

CSXT makes much of the fact that Dr. Spector did not rely

on peer-reviewed studies in his causation diagnosis. The mere fact

of publication, or lack thereof, in a peer-reviewed journal is not

a determinative factor in assessing the scientific validity of a

technique or methodology on which an opinion is premised. Daubert,

509 U.S. at 593 ("Publication (which is but one element of peer

review) is not a sine qua non of admissibility . . . .").

CSXT also takes issue with Dr. Spector's method of

analysis, differential diagnosis (a determination of which of two

or more diseases, presenting with similar symptoms, had caused a

patient's ailments). We have previously agreed that a differential

-23-
diagnosis is a proper scientific technique for medical doctor

expert testimony. See Feliciano-Hill v. Principi, 439 F.3d 18, 25

(1st Cir. 2006); see also Bitler v. A.O. Smith Corp., 391 F.3d

1114, 1123 (10th Cir. 2004) (collecting cases holding that

qualified doctor's differential diagnosis of patient was

sufficiently reliable for Rule 702 and Daubert purposes).

Given the above, and the fact that Dr. Spector's opinion

was formed before litigation was contemplated, we find that the

district court did not abuse its discretion in admitting Dr.

Spector as an expert on the issue of causation.

The remainder of CSXT's objections to Dr. Spector, even

while cloaked as objections to his qualifications under Rule 702,

are actually objections about the weight of the evidence. Cf.

McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1044 (2d Cir. 1995)

(holding that "[d]isputes as to the strength of [expert']

credentials, faults in his use of differential etiology as a

methodology, or lack of textual authority for his opinion, go to

the weight, not the admissibility, of his testimony."). Here we

also find that CSXT has failed to satisfy its burden of proving

that Dr. Spector's testimony was insufficient to establish

causation.

This argument properly relates to CSXT's appeals from the

district court's denial of its motion for judgment as a matter of

-24-
law and for a new trial and is thus reviewed, respectively, de novo

and for abuse of discretion.

Dr. Spector testified at trial that the "force [used] is

not the important part. It's the repetition . . . that causes scar

tissue and bilateral epicondylitis and that having to increase

these motions because of the defective working of these levers

caused [Granfield] to have this condition."

CSXT did not present their own expert to rebut Dr.

Spector's testimony, although it has listed one on the witness

list. CSXT also did not offer any medical expert testimony on the

causation issue. Considering the above, we find that a reasonable

jury could have found Dr. Spector presented sufficient evidence to

find that CSXT caused Granfield's injuries.

C. The Roberts Letter

The Brotherhood of Locomotive Engineers ("BLE"), of which

Granfield was a member, collected locomotive work reports, or

"5001B reports," between 2000 and 2006. Engineers were required by

a BLE directive to fill out these reports periodically, annotating

any defects they encountered while operating the locomotives.

William Munger, then local chairman of BLE, was in charge of

collecting the reports. According to the testimony of its General

Chairman, Thomas Roberts, the BLE wanted to perform a

"comprehensive study" on these reports.

-25-
 Roberts conducted a review of the reports gathered by

Munger, and subsequently sent a letter to Richard Regan, CSXT's

Chief Mechanical Officer, concerning the condition of the

locomotives. In this letter, dated January 20, 2004, Roberts

stated, inter alia, the following:

This is in reference to a number of CSX
locomotives . . . and their potential danger
to the health of CSX Engineers . . . due to
their degenerated condition.

[B]ill Munger, has made a comprehensive
study of the dangerous disrepair of these
locomotives . . . . [H]is color photo study of
the neglected locomotives is attached . . . .
[H]is efforts have yet to result in a safe
workplace CSX Northern District Engineers in
Framingham.

Thus and therefore, I request immediate
relief from your office to fix or replace
these dangerous locomotives before serious
injury strikes, and irreparable damage is
done.

During Roberts' cross-examination at trial, CSXT

questioned him as to the comprehensiveness of Munger's study. When

Roberts answered that he did not know, CSXT's counsel approached

him and used the above letter to refresh his memory.10

Afterwards, during the redirect examination of Roberts,

Granfield's counsel sought to introduce the letter into evidence.

The district court admitted the letter into evidence, over CSXT's

10
Roberts had previously been precluded from testifying on the
state of the locomotives.

-26-
objection, reasoning that as CSXT used the letter to refresh a

witness' memory, Granfield had the right to offer it into evidence.

During the marshaling of evidence, at the time when the

jury was about to commence its deliberations, the district court

overruled its original admission of the letter. The court struck

the whole letter and determined that it should not be provided to

the jury for its deliberations. The contents of the letter were

not read to the jury, nor were they admitted into evidence.

In its November 17, 2008 Motion for New Trial and

supporting Memorandum of Law, CSXT argued, inter alia, that it was

unfairly prejudiced by the Court's initial admission of the letter.

CSXT now appeals from the denial of this motion by the district

court on February 2, 2009.

i. Standard/Scope of Review

We review a denial of a Motion for a New Trial under an

abuse of discretion standard. Simon v. Navon, 71 F.3d 9, 13 (1st

Cir. 1995). We have sent cases back for a new trial when we have

found the trial court abused its discretion in not granting a new

trial where it had admitted irrelevant and highly prejudicial

damages evidence which tainted the award. Soto Lebrón v. Fed.

Express Corp., 538 F.3d 45 (1st Cir. 2008).

This court's standard for determining whether the

admission of such evidence resulted in harmless error is "whether

we can say 'with fair assurance . . . that the judgment was not

-27-
substantially swayed by the error . . . .'" Stacey Marie Vincent v.

Louis Marx & Co., 874 F.2d 36, 41 (1st Cir. 1989). "The centrality

of the evidence, its prejudicial effect, whether it is cumulative,

the use of the evidence by counsel, and the closeness of the case

are all factors which bear on this determination." Id.

ii. Analysis

Typically, when a party uses a writing to refresh a

witness's memory, the opposing party has the right to offer "those

portions [of the writing] which relate to the testimony of the

witness" into evidence. Fed. R. Evidence 612. Rule 612 also

states that "[i]f it is claimed that the writing contains matters

not related to the subject matter of the testimony the court shall

examine the writing in camera, excise any portions not so related,

and order delivery of the remainder to the party entitled thereto."

Id. Rule 612 has never been construed to require that a writing

used to refresh a witness' recollection must be independently

admissible into evidence. United States v. Shinderman, 515 F.3d 5,

18 (1st Cir. 2008).

Here, the letter impeached by CSXT contained general and

possibly prejudicial language on the state of the locomotives,

mainly that they were in "degenerated condition," "dangerous

disrepair," and presented an unsafe workplace for CSXT engineers.

During cross-examination, CSXT's counsel used the letter to refresh

Robert's recollection as to the "comprehensiveness" of the study

-28-
carried out by Munger. At re-direct, Granfield's counsel

introduced the letter into evidence, over CSXT's objection, and

asked Roberts what the letter said. The district court refused to

allow Roberts to read the letter aloud, reasoning that the jury

would be able to read it on their own later. Granfield's counsel

then asked Roberts four questions relating to the letter. In

response to these questions, Roberts testified that he thought the

locomotives provided a risk of serious injury and had slipped into

a state of disrepair, due to holes being present on the floor,

among other things.

CSXT maintains that the testimony elicited from Roberts

through the use of the letter was highly prejudicial and

substantially swayed the jury. Furthermore, CSXT contends the

letter undermined its efforts to prove it employed reasonable care

in the maintenance of its locomotives.

We ultimately find that this testimony, even assuming its

admission was error, was harmless. Several reasons guide us in

this determination.

First, the letter was never read out loud to the jury, so

any prejudice came from Roberts' testimony on the state of the

locomotives. This testimony, including the phrases "state of

disrepair" and "risk of serious injury," was brief and was

cumulative with the other evidence presented relating to the state

of the locomotives.

-29-
 Second, during the re-cross CSXT's counsel was able to

confront Roberts on the contents of the letter. During this

confrontation, Roberts admitted that the Munger study referenced in

the letter only concerned the floors of the locomotives, which were

apparently plagued by holes. Roberts further admitted that nothing

in the letter had any relevancy to the state of the throttles and

alerters, the main issue at trial. At this point, any prejudicial

effect on the jury was neutralized by CSXT's counsel. CSXT's

counsel adequately established that the letter was irrelevant to

the condition of the throttles and alerters and was instead only

relevant to the condition of the floors of the locomotives.11

Finally, the letter never actually reached the jury.

Considering the above, we find that the brief statements by Roberts

as to the contents of the letter was harmless error.

D. Closing Arguments

After the conclusion of closing arguments, CSXT counsel

objected, arguing that Granfield's counsel had twice attacked him

personally and also misstated what the evidence was concerning

other engineers who had developed epicondylitis from operating the

same locomotives Granfield was required to operate.

In particular, CSXT objected to the following statement

made by Granfield's counsel during his closing argument:

11
No evidence was presented at trial and no argument has been
offered that the condition on the locomotives' floor was related to
Granfield's lateral epicondylitis.

-30-
 Mr. Flynn is the one who says nobody else got
it. What witness came in and said, "Yeah,
there's been no other claims by other
engineers saying that they have lateral
epicondylitis due to the throttles and
alerters." What witness said that? I didn't
hear that witness. Maybe I wasn't there that
day. I'm pretty sure I was here every day. The
only one who said that was Mr. Flynn. And what
Mr. Flynn says isn't evidence.

CSXT pointed out that John O'Neill, a trainmaster working for CSXT

and one of its witnesses, testified at trial that no engineer,

other than Granfield, had ever complained of developing

epicondylitis as a result of the condition of the throttles and

alerters in the locomotives Granfield was required to operate.12

The district judge heard the objection and decided to

give a general curative instruction to the jury before its general

instructions. The judge stated:

I wanted to remind you that although
the attorneys would not deliberately mislead
you, it may be, as you review your own notes
or the recollection of the testimony, that
there's some inconsistencies or an
inconsistency or two, or whatever, between
what the attorney said in their closings as to
what they thought the evidence showed and what
your recollection of the evidence was. Please
remember to be guided by your own recollection

12
The following exchange took place during O'Neill's direct
examination by CSXT:

Q. Has any engineer, other than Mr. Granfield, ever
complained they have developed tennis elbow as a
result of the condition of throttles or alerters in
the 6200 series locomotives between 2000 and 2006?

A. No.

-31-
 of the evidence, your collective recollection,
as you go through your deliberations and that
if there are inconsistencies, of course follow
your own recollections and not follow the
attorneys' representations.

After the trial ended, CSXT again made the argument that

Granfield's counsel's comments were inappropriate and warranted a

new trial in its November 17, 2008 Motion for New Trial. This

time, however, CSXT enumerated a litany of additional statements

made by Granfield's counsel during closing arguments which it

considered also to be improper and warranted a new trial. CSXT

argued that the statements unfairly prejudiced the jury and that

the curative instructions from the district judge were not enough

to overcome their prejudicial effect.

Specifically, CSXT alleged that Granfield's counsel made

improper remarks as he: (1) asked the jury to walk in Granfield's

shoes; (2) misstated facts and evidence presented at trial; (3)

interjected his personal opinions and beliefs regarding the

credibility of witnesses; and (4) interjected emotional,

inflammatory, and prejudicial elements into jury deliberations.

CSXT also argued that the district court's curative instruction was

insufficient to counter the alleged prejudice caused on the jury by

Granfield's counsel's improper remarks.

As stated previously, CSXT's Motion for New Trial was

denied on February 2, 2009, and CSXT now appeals from this

decision.

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 i. Standard/Scope of Review

We review the comments timely objected to under an abuse

of discretion standard.13 "Absent an abuse of discretion, we will

defer to the district court's denial of a motion for a new trial on

the basis of improper argument or conduct of counsel." P.R.

Aqueduct & Sewer Auth. v. Constructora Lluch, Inc., 169 F.3d 68,

81-82 (1st Cir. 1999); see also Johnson v. Nat'l Sea Prods., Ltd.,

35 F.3d 626, 631 (1st Cir. 1994).

In assessing the effect of allegedly improper conduct by

counsel, the Court must examine the totality of the circumstances,

including (1) the nature of the comments; (2) their frequency; (3)

their possible relevance to the real issues before the jury; (4)

the manner in which the parties and the court treated the comments;

(5) the strength of the case; and (6) the verdict itself. See

Forrestal, 848 F.2d at 309; see also González Marín v. Equitable

Life Assurance Soc'y, 845 F.2d 1140, 1147 (1st Cir. 1988).

On the other hand, untimely objections, which a party

fails to make immediately after closing arguments, are reviewed for

plain error. Smith v. Kmart Corp., 177 F.3d 19, 25 (1st Cir.

1999). Thus CSXT must establish that (1) an error was committed;

(2) the error was "plain" (i.e. obvious and clear under current

law); (3) the error was prejudicial (i.e. affected substantial

13
Namely, the comment on what the evidence was on other engineers
who had developed epicondylitis from operating the alerters and
throttles on the 6200 series locomotives.

-33-
rights); and (4) review is needed to prevent "a miscarriage of

justice or [if the error has] seriously affected the fairness,

integrity or public reputation of the judicial proceedings."

Coastal Fuels of P.R., Inc. v. Caribbean Petroleum Corp., 79 F.3d

182, 189 (1st Cir. 1996). See also Chute v. Sears Roebuck & Co.,

143 F.3d 629, 631 (1st Cir. 1998); United States v. Bartelho, 129

F.3d 663, 673 (1st Cir. 1997); Cambridge Plating Co., Inc. v.

Napco, Inc., 85 F.3d 752, 767 (1st Cir. 1996) ("Plain error is a

rare species in civil litigation, encompassing only those errors

that reach the pinnacle of fault.") (internal quotations omitted).

ii. Analysis

We begin first by addressing the comment timely objected

to by CSXT. CSXT argues that, during closing argument, Granfield's

counsel misstated what the evidence was concerning other engineers

who had developed epicondylitis, as a result of operating the GP40

6200 series locomotives. CSXT pointed out that one of its

witnesses, O'Neill, had testified that no engineer, other than

Granfield, had complained of developing the injury as a result of

the condition of the throttles and alerters in the 6200 series

locomotives. After CSXT objected to Granfield's counsel's remarks,

Granfield's counsel countered that O'Neill did not possess the

requisite knowledge and information from which to testify on the

amount of engineers, if any, who had complained of developing

lateral epicondylitis.

-34-
 The jury heard O'Neil's testimony and even if counsel's

remarks had a tendency to mislead, we believe the brief comments

were sufficiently neutralized by the district judge's curative

instructions. See Hatfield-Bermúdez v. Aldanondo-Rivera, 496 F.3d

51, 64 (1st Cir. 2007).

As to the unobjected-to alleged errors, CSXT contends

that Granfield's counsel made an improper statement when he asked

the jury to walk in Granfield's shoes "for just a couple of hours

while you're thinking about his case." There can be little doubt

that suggesting to the jury that it put itself in the shoes of a

plaintiff is improper. Forrestal, 848 F.2d at 309. The walking in

plaintiff's shoes argument, or as it is sometimes called, the

Golden Rule argument, has been "universally condemned because it

encourages the jury to depart from neutrality and to decide the

case on the basis of personal interest and bias rather than on

evidence." Id. (internal quotations omitted); see also Ivy v. Sec.

Barge Lines, Inc., 585 F.2d 732 (5th Cir. 1978) rev'd en banc on

other grounds, 606 F.2d 524 (5th Cir. 1979) (en banc), cert.

denied, 446 U.S. 956 (1980). Nonetheless, we have never held that

the use of such language is per se reversible error. To the

contrary, we have held that we will engage in a totality of the

circumstances analysis which "[f]irst and foremost [recognizes] the

deference due the district court's judgment." Forrestal, 848 F.2d

at 309.

-35-
 Nevertheless, we believe that these sorts of remarks by

were adequately dealt with by the district judge's instructions,

and conclude that no plain error occurred. See Forrestal, 848 F.2d

at 310; see also Blevins v. Cessna Aircraft Co., 728 F.2d 1576

(10th Cir. 1984).

Second, CSXT objects to several statements made by

Granfield's counsel during closing argument, arguing that such

statements misstated the facts and evidence presented at trial.

Two examples of these statements are: (1) "the plaintiff had no

ability to take a locomotive out of service;" and (2) "Mr.

Granfield, this is his only opportunity to get compensation in this

case for his injuries."

As to the first statement, federal regulations require

that a locomotive engineer take the locomotive out of service if it

is unsafe. The second statement, according to CSXT, ignored the

fact that Granfield was then receiving $38,000 a year in Railroad

Retirement Board Benefits. Again, we believe that individually and

cumulatively, the statements cited failed to raise to the level of

plain error.

The same can be said for the other statements CSXT is

objecting to: the statements attacking the credibility of CSXT's

witnesses and the remarks allegedly interjecting "emotional,

inflammatory and prejudicial elements" into jury deliberations.

The district judge properly dealt with these by instructing the

-36-
jury to only consider the evidence, and not be swayed by emotions

or sympathy. Thus, no plain error was committed.14

For the reasons stated above, we affirm the judgment.

Affirmed.

14
CSXT also requests that we enter judgment in its favor, or in
the alternative order a new trial, based on the cumulative error
doctrine outlined in United States v. Sepúlveda, 15 F.3d 1161,
1195-96 (1st Cir. 1993). Given that we have found the district
court committed no errors, we decline to do so.

-37-