Lisa A. Boyd v. BNSF Railway Company

12/17/2018
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
September 12, 2018 Session

LISA A. BOYD v. BNSF RAILWAY COMPANY

Appeal from the Circuit Court for Shelby County
No. CT-000605-15 Felicia Corbin Johnson, Judge
___________________________________

No. W2017-02189-COA-R3-CV
___________________________________

This is an FELA1 case arising out of an accident that occurred at the railroad’s intermodal
facility in which a railroad employee was crushed by a container box being lifted off of a
holster truck. The jury entered a verdict in favor of the employee, determining she was
zero percent at fault for the accident, despite allegations that she had failed to set the
holster truck brakes. The railroad moved for a new trial, raising several evidentiary
issues and asserting that the jury’s failure to find the employee contributorily negligent
was against the clear weight of the evidence. The trial court denied the motion. We
affirm the trial court’s order on jury verdict, as remitted.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed and
Remanded

ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which THOMAS R.
FRIERSON, II, and KENNY ARMSTRONG, JJ., joined.

Marianne M. Auld and Jody S. Sanders, Fort Worth, Texas and John G. Wheeler, Tupelo,
Mississippi, for the appellant, BNSF Railway Company.

Jeffrey E. Chod, Denver, Colorado, and Robert M. Frey, Ridgeland, Mississippi and
Stephen R. Leffler, Memphis, Tennessee, for the appellee, Lisa A. Boyd.

OPINION

BACKGROUND AND PROCEDURAL HISTORY

This case arises out of an accident that occurred at BNSF Railway Company’s
(“Defendant”) intermodal facility in Memphis, Tennessee. On September 15, 2014, Lisa
1
The Federal Employers’ Liability Act (“FELA”), 45 U.S.C. §51 et seq., is a federal statute
enacted in 1908 to protect and compensate railroad workers injured on the job.
Boyd (“Plaintiff”) and Matt Carnell, both intermodal equipment operators,2 were working
the night shift as a holster truck driver and a production crane operator, respectively.
Plaintiff pulled the truck into a spot adjacent to Mr. Carnell’s crane for him to remove the
shipping container from the truck chassis. Plaintiff then exited the truck and took a
break. It is a major point of contention whether Plaintiff set the parking brakes as she
exited the truck. After Plaintiff had exited the truck, Mr. Carnell brought the crane head
down and latched onto the shipping container, but, as he began to pull back, the entire
truck moved backwards because the container would not disengage from the chassis.
Plaintiff signaled for Mr. Carnell to stop and to put pressure back down onto the truck.
Once Mr. Carnell did so, the truck stopped moving. Plaintiff then attempted to reenter
the truck. While standing at the rear of the cab, she “heard a screech,” and then the
shipping container “flew up” and hit her, crushing her between the container and cab of
the truck and causing serious injuries.

Plaintiff filed this action on February 11, 2015 in the Shelby County Circuit Court.
In her Complaint, pursuant to the Federal Employers’ Liability Act (“FELA”), Plaintiff
claimed that her injuries were caused by Defendant’s negligence and sought
$5,930,820.00 in damages. Pursuant to a December 2, 2016 scheduling order, the trial
court set April 28, 2017 as “[t]he deadline for filing all motions other than motions in
limine, including dispositive motions and motions regarding expert witnesses[.]”
Plaintiff never filed any such motions.

The case was tried before a jury, beginning on June 19, 2017. At trial, a major
issue of contention between the parties was whether Plaintiff had set the brakes of the
holster truck before exiting the truck. Throughout her trial testimony, Plaintiff
maintained that she could not remember whether she set the brakes before she exited the
truck. Mr. Carnell, however, recounted different versions of the story on separate
occasions. For example, in his trial testimony, Mr. Carnell claimed that he set both
brakes when he got down from the crane to assist Plaintiff and entered the truck. During
cross-examination, however, Plaintiff’s counsel brought to Mr. Carnell’s attention certain
photographs that were taken soon after the accident by Katherine Foster—a claims
representative for Defendant—showing that only one of the holster truck brakes had been
set. Additionally, Plaintiff’s attorney also presented Mr. Carnell with his deposition
testimony, wherein he claimed that he never set—or even looked at—the brakes. On re-
direct, Defendant attempted to offer a subsequent portion of Mr. Carnell’s deposition
testimony wherein he testified that he did remember setting both brakes in the holster
truck. Plaintiff lodged numerous objections, and the trial court eventually excused Mr.
Carnell and the jury from the courtroom to discuss the admissibility of this evidence with

2
Intermodal equipment operators are generally trained on three different jobs: (1) driving the
holster trucks that carry containers; (2) working as groundsmen during the loading and unloading process;
and (3) operating the cranes that load and unload the containers.
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both parties.3 Ultimately, the trial court sustained Plaintiff’s objection, prohibiting
Defendant from rehabilitating Mr. Carnell with his deposition testimony.

Later, Defendant called Dr. Steve Arndt to the stand to testify. Dr. Arndt testified
as to his specialization in “human factors,” which he described as the study of the
“capabilities and limitations of people as they interact with tools, technology, their
environment, organizations, and other people and information.” Defendant tendered Dr.
Arndt as an expert in the area of human factors and he was received as such without
objection. Defendant then asked Dr. Arndt to “share with us what your opinions were in
this case[,]” to which Plaintiff objected. In the ensuing bench conference, Plaintiff,
asserting that Dr. Arndt was about to testify as to whether Plaintiff complied with the
rules and policies of her work, argued that he was not qualified to offer such an opinion,
noting that Dr. Arndt was tendered as a human factors expert, not a rules expert.
Defendant admitted that it had “no quarrel with the substance of the objection[,]” but
rather took issue with “the timeliness of it.” The “timeliness” referred to by Defendant
concerned the fact that Plaintiff never filed any motion in limine objecting to Dr. Arndt as
an expert witness by April 28, 2017—the deadline for such motions as set by the trial
court’s December 2, 2016 scheduling order. Ultimately, the trial court again sustained
Plaintiff’s objection.

At the conclusion of Plaintiff’s case-in-chief, Defendant moved for a directed
verdict pursuant to Rule 50.01 of the Tennessee Rules of Civil Procedure, which the trial
court denied. Defendant again moved for a directed verdict at the conclusion of all of the
evidence, but the trial court again denied the motion. The jury deliberated and returned
its verdict on June 24, 2017, determining that Defendant was negligent in one or more of
the particulars alleged by Plaintiff and that such negligence caused or contributed to the
damages alleged by Plaintiff. The jury awarded the Plaintiff a judgment against the

3
In fact, before excusing Mr. Carnell and the jury, the trial court had held two bench conferences
in which it cautioned Defendant’s counsel about leading Mr. Carnell on re-direct. During the third bench
conference, after more leading objections by Plaintiff’s counsel, the trial court stated the following:

Okay. We get down to the very end and we have a problem here. There
was leading throughout the whole, pretty much the whole Redirect of [Mr. Carnell.] . . . .
Did you not realize that you were leading the witness? He would say one
thing, you would – each question you asked would suggest the answer. And even when
he gave a different answer – when he gave an answer, then you would correct him, and
then he would say, oh, yes. But it was clearly contradictory to what he had testified on
cross-examination.
. . . . I mean, I understand that you may know the case, and documents,
and things better than him, but you can’t substitute your testimony for the witness.

Ultimately, after much deliberation between the parties, the trial court sustained Plaintiff’s
objection.

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Defendant in the amount of $5,021,016.00 and found no comparative fault on the part of
the Plaintiff. The trial court entered its Order on Jury Verdict on July 11, 2017.

On July 18, 2017, Plaintiff filed a motion for discretionary costs totaling
$18,768.65. On August 10, 2017, pursuant to Rules 50.02, 59.02, and 59.04 of the
Tennessee Rules of Civil Procedure, Defendant filed a motion asking the trial court to
enter a judgment in accordance with its motion for directed verdict or, in the alternative,
to order a new trial or suggest a remittitur. Defendant’s motion asserted that the jury’s
failure to find Plaintiff comparatively negligent was against the clear weight of the
evidence, that the trial court erred by excluding testimony by Defendant’s expert witness
regarding Plaintiff’s fault, and that the jury’s award of damages was unsupported by the
evidence. The trial court conducted a hearing on the motions on October 6, 2017 and, on
October 13, 2017, entered its order denying Defendant’s motion for judgment in
accordance with its motion for directed verdict or in the alternative it’s motion for new
trial. The trial court did, however, suggest a remittitur of the jury’s verdict from
$5,021,016.00 to $4,544,573.10 based on the lack of evidence supporting the jury’s
awards for future loss of earning capacity and future medical expenses, which Plaintiff
accepted under protest. Defendant timely appealed.4

ISSUES PRESENTED

The parties raise several issues on appeal; however, we rephrase and consolidate
such issues as follows:

1. Whether the trial court erred by denying Defendant’s motion for a new trial.

4
The trial court did not reach a conclusion as to Plaintiff’s motion for discretionary costs at the
October 6, 2017 hearing, and it was not ruled upon in its October 13, 2017 order. After the trial court
granted her leave to amend, Plaintiff filed an amended motion for discretionary costs on January 18,
2018, which the trial court granted the next day, awarding Plaintiff discretionary costs in the amount of
$17,468.65. This does not affect the timeliness of Defendant’s appeal. See Tenn. R. Civ. P. 54.04(2)
(“The trial court retains jurisdiction over a motion for discretionary costs even though a party has filed a
notice of appeal.”). Citing Rule 54.04 of the Tennessee Rules of Civil Procedure, this Court has noted:

Normally, the filing of a notice of appeal places jurisdiction of a case in our court and
deprives the trial court of jurisdiction to act further. Any additional matter that needs to
be addressed in the trial court must be addressed once the trial court reacquires
jurisdiction. A motion for discretionary costs, however, is different; a trial court “retains
jurisdiction over a motion for discretionary costs even though a party has filed a notice of
appeal.” The retention of the issue of discretionary costs does not prevent [a] judgment
from being final for purposes of appeal.

Roberts v. Roberts, No. E2009-02350-COA-R3-CV, 2010 WL 4865441, at *8 (Tenn. Ct. App. Nov. 29,
2010) (internal citations omitted).

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 2. Whether the trial court erred by limiting Defendant from introducing a
subsequent portion of Mr. Carnell’s deposition testimony after Plaintiff
impeached him with the same deposition.
3. Whether the trial court erred by excluding portions of Dr. Arndt’s expert
witness testimony.
4. Whether the trial court erred by failing to determine that the jury’s award of
$3,000,000 for future pain and suffering damages was excessive and a result
of passion and prejudice.

STANDARD GOVERNING NEW TRIAL DETERMINATIONS IN FELA CASES TRIED IN
STATE COURT

As our Supreme Court has recently stated, “[i]n FELA cases, a motion for a new
trial is governed by the federal standard, pursuant to which a trial court has the power and
duty to order a new trial whenever, in its judgment, this action is required to prevent an
injustice.” Payne v. CSX Transp., Inc., 467 S.W.3d 413, 440 (Tenn. 2015). As this Court
has noted, “[t]he standard federal courts employ in deciding whether to grant a new trial
is whether the verdict is against the ‘clear weight’ of the evidence.” Blackburn v. CSX
Transp., Inc., No. M2006-01352-COA-R10-CV, 2008 WL 2278497, at *5 (Tenn. Ct.
App. May 30, 2008). However, “new trials are not to be granted on the grounds that the
verdict was against the weight of the evidence unless that verdict was unreasonable,”
meaning that “if a reasonable juror could reach the challenged verdict, a new trial is
improper.” Id. at *5-6 (quoting Tisdale v. Fed. Exp. Corp., 415 F.3d 516, 528-29 (6th
Cir. 2005)). Accordingly, because the federal standard is applicable and because Federal
Rule of Civil Procedure 59 governs federal new trial determinations, we have recognized
that, “in order to grant a new trial in an FELA case tried in state court, the trial court must
find that the verdict is against the clear weight of the evidence.” Id. at *16.

STANDARD OF REVIEW

“In federal court, orders on new trial motions based on sufficiency of the evidence
are reviewed on an abuse of discretion standard.” Id. “A trial court abuses its discretion
in its decision on a new trial if the court (a) relies on clearly erroneous findings of facts,
(b) improperly applies the law, (c) uses an incorrect legal standard, or (d) is otherwise
‘clearly erroneous.’” Id. (citing United States v. Blackwell, 450 F.3d 737, 768 (6th Cir.
2005)). “In determining whether a trial court has abused its discretion, it is appropriate to
look not only to the written opinion, but also any oral ruling in the matter.” Id. (citing
Fortenberry v. New York Life Ins. Co., 459 F.2d 114, 115-16 (6th Cir. 1972)).

DISCUSSION

A. Trial Court’s Denial of Defendant’s Motion for New Trial

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 Defendant’s first assignment of error is that the trial court erred by denying its
motion for a new trial. First, Defendant argues that the trial court abused its discretion by
failing to conduct a proper review as a thirteenth juror on its motion for new trial. This
Court has noted, however, that federal decisions “expressly disclaim” the thirteenth juror
description. See id. at *7 (“We believe that the differences between the standards are
both apparent and significant.”); see also Jordan v. Burlington Santa Fe R.R. Co., No.
W2007-00436-COA-R3-CV, 2009 WL 112561, at *22 (Tenn. Ct. App. Jan. 15, 2009)
(“The Blackburn Court explained that the Tennessee standard and the federal standard for
reviewing motions for new trial are not the same or even substantially similar.”). The
Blackburn Court expounded upon this distinction: “The standards are quite different
since the Tennessee standard uses ‘preponderance’ of the evidence, while the federal
standard requires that the verdict be outweighed by the ‘clear’ weight of the evidence.”
Blackburn, 2008 WL 2278497, at *7. It continued:

Under state law, if a judge is “dissatisfied” with a jury verdict then the trial
court is at liberty to order a new trial. Under the federal standard, the
verdict must be unreasonable. Under state law a court must make an
independent decision, while under federal law if a reasonable juror could
have reached the verdict, the trial court is to defer.

Id. Accordingly, Defendant’s argument that the trial court failed to conduct a proper
review as a thirteenth juror is unfounded.

The record reflects, however, that the trial court, on several occasions, did refer to
itself as the thirteenth juror. The trial court also stated that it made an independent
review of the evidence.5 Such references suggest that the trial court may have applied the
Tennessee standard or improperly conflated it with the federal standard. After our review
of the record, however, we are of the opinion that the trial court was merely recognizing
its duty to review a jury’s verdict in a motion for new trial and offering a comparison to
the Tennessee standard. Throughout the hearing, the trial court demonstrated that it
understood its role was to determine whether the jury’s verdict was against the clear
weight of the evidence, as did the attorneys.6

Even had the trial court applied the Tennessee standard, this Court has noted that
such a mistake is irrelevant if the motion for new trial is denied:

5
Stressing the non-independence of the trial court’s review under the federal standard, this Court
has noted that the trial judge “should not set the verdict aside as against the weight of the evidence merely
because, if he had acted as trier of fact, he would have reached a different result; and in that sense he does
not act as a thirteenth juror in approving or disapproving the verdict.” Blackburn, 2008 WL 2278497, at
*5 (quoting 6A Moore’s Federal Practice § 59.08[5] (1996)).
6
In fact, at the hearing on Defendant’s motion for new trial, the trial court stated that, “[i]n FELA
cases … a motion for a new trial is governed by the federal standard.”
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 In this case, the trial judge denied the motion for new trial upon finding that
the jury’s verdict was supported by the preponderance of the evidence.
Under the circumstances of this case, it is not necessary to remand the case
for the trial judge to reconsider the motion under the federal standard. If
the trial judge found that the evidence does not preponderate against the
jury’s verdict, then, by necessity, he found that the verdict is not against the
clear weight of the evidence.

Jordan, 2009 WL 112561, at *23. Such logic would be applied here as well.

Next, Defendant argues that the trial court abused its discretion by failing to grant
a new trial, asserting that the jury’s failure to find Plaintiff contributorily negligent was
against the clear weight of the evidence. In its ruling, the trial court stated that “the
verdict was supported by the evidence in terms of there not being any finding of
contributory negligence on behalf of [Plaintiff].” We agree.

According to Defendant, the evidence established that, when Plaintiff exited the
holster truck, she failed to set the brakes, and that by climbing back onto it when it was
moving, she put herself in an unsafe position. This assertion of contributory negligence,
however, is controverted by numerous pieces of evidence that were introduced at trial. In
Defendant’s General Claims and Litigation System Claims file, the cause of the accident
is listed as “SWAYING CONTAINER BEING LIFTED.” Similarly, in response to
Plaintiff’s interrogatory as to the cause of the accident, Defendant, again, listed “Swaying
container being lifted” as the cause. These records explicitly denote that Plaintiff’s
injury—in Defendant’s own words—was caused by a swaying container being lifted, not
by Plaintiff’s alleged failure to set the holster truck’s brakes or by her climbing back onto
the truck.

Moreover, other internal records indicate that neither setting the brakes nor
climbing back onto the holster truck is addressed by a specific rule issued by Defendant.
In an email exchange between Doug Gage, senior manager of hub operations at Memphis
Intermodal Terminal, and Ryan Perry, Defendant’s Southeast Regional Manager as well
as Mr. Gage’s direct supervisor, Mr. Perry inquired: “Do we have specific written
instructions against getting out of your vehicle during live lifting operations? Or standing
on the catwalk? Do we have specific written instructions about engaging the brakes on
the holster?” Mr. Gage’s response: “I do not believe there is a written rule on any of
these, they are best practices.”

Other witness testimony supported the above proposition, as well—that the
accident was caused by a swaying container rather than by Plaintiff’s alleged failure to
set the brakes or by her climbing back onto the holster truck. Several witnesses testified
that, when lifting containers from the holster trucks, the crane operator is never to lift it
straight up, because such a lift could cause a pendulum effect. Several of these same
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witnesses and others also testified that, if the lifting procedure is performed correctly, the
container being lifted will never swing back and hit the holster truck. It is undisputed
that the container being lifted by Mr. Carnell swung into the back of the holster truck and
struck Plaintiff. Accordingly, from this evidence, a jury could reasonably conclude that
Mr. Carnell performed an improper lifting procedure, causing the container to swing and
strike the holster truck and Plaintiff. This conclusion can be supported by additional
evidence. On the night of the accident, Mr. Carnell was operating a production crane.
Defendant’s internal documents reflect, however, that Mr. Carnell was never officially
certified to operate a production crane. Mr. Carnell’s Crane Operator Certification, dated
June 13, 2014, contains two handwritten notations: “Will need more experience on
production side” and “Stacking crane only – In a few weeks can do the production
crane.” According to Mr. Carnell, he understood these comments to mean that he could
operate a production crane in three weeks. But, according to Andrew Jenkins’ testimony,
director of system safety for the hub and facility operations for Defendant, Mr. Carnell
was never formally released or certified as a crane operator for a production crane.

There is also photographic evidence that one of the holster truck brakes was set.
Another photograph from the same exhibit collection shows skid marks—allegedly from
the holster truck operated by Plaintiff—which suggests that the truck was dragged by the
crane. At trial, Mr. Carnell testified that, after he exited the crane and rushed to Plaintiff,
he set both brakes in the holster truck. During his deposition, however, he testified that
he did not set either of the brakes. Plaintiff, too, was adamant that Mr. Carnell did not set
the brakes. Regardless, Willie Hamilton, one of Plaintiff’s coworkers, testified that a
holster truck can be dragged even if both brakes have been set. Considering all of the
evidence presented to it, a jury could reach the reasonable conclusion that Plaintiff—not
Mr. Carnell—set the one brake and that Mr. Carnell, as a result of his improper lift
procedure, dragged the holster truck.

Defendant also argues that, in denying its motion for new trial, the trial court
erroneously relied on legally insufficient evidence. Specifically, Defendant asserts that
“the trial court’s denial hinged exclusively on a single piece of unsupported evidence”—
the skid mark photograph referenced above. Defendant’s assertion is untenable. The
trial court’s decision did not “hinge exclusively” on the photograph because it considered
all of the evidence discussed heretofore; and the photograph is not “unsupported” or
“insufficient” evidence because, as part of an exhibit received and marked as evidence,
the photograph itself was evidence.

After our review of the record, and for the reasons discussed above, we are of the
opinion that a reasonable juror could reach the challenged verdict, and, as such, a new
trial is improper. Accordingly, the trial court did not abuse its discretion in denying
Defendant’s motion for new trial.

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 B. Evidentiary Issues

Defendant’s second assignment of error is that the trial court improperly limited
certain evidence that, according to Defendant, would support its contributory negligence
defense.

The first evidentiary issue relates to the deposition testimony of Mr. Carnell. As
the record indicates, and as previously discussed, after Mr. Carnell had testified that he
set both of the holster truck brakes, Plaintiff impeached him with testimony from his
deposition wherein he claimed that he never set either of the brakes. On re-direct, the
trial court rejected Defendant’s attempt to offer a subsequent portion of Mr. Carnell’s
deposition testimony in which he testified that he did remember pulling both brakes in the
holster truck. On appeal, Defendant asserts that the trial court’s decision to exclude the
subsequent portions of Mr. Carnell’s deposition testimony contradicted two different
rules—(1) the prior consistent statement rule and (2) the rule of completeness—thereby
prejudicing Defendant. We will address each rule and its alleged applicability in turn.

After our review of the relevant provisions of Tennessee law, we are of the
opinion that the rule for prior consistent statements is inapplicable here. Tennessee Rule
of Civil Procedure 32.01 provides that “[a]ny deposition may be used by any party for the
purpose of contradicting or impeaching the testimony of deponent as a witness.” Tenn.
R. Civ. P. 32.01(1). Contrast this language with that of Federal Rule of Civil Procedure
32, which provides that “[a]ny party may use a deposition to contradict or impeach the
testimony given by the deponent as a witness, or for any other purpose allowed by the
Federal Rules of Evidence.” Fed. R. Civ. P. 32(a)(2) (emphasis added).7 While Federal
Rule of Civil Procedure 32 indicates that a deponent-witness may be impeached and
rehabilitated by that deponent-witness’s deposition testimony, Tennessee Rule of Civil
Procedure 32.01 maintains that deposition testimony—as it pertains to the deponent-
witness—may be used only for impeachment purposes. Accordingly, the trial court’s
decision to exclude Mr. Carnell’s deposition testimony did not violate the rule for prior
consistent statements.

The rule of completeness can be found in both Tennessee rules of evidence and
procedure. Tennessee Rule of Evidence 106 provides that “[w]hen a writing or recorded
statement or part thereof is introduced by a party, an adverse party may require the
introduction at that time of any other part or any other writing or recorded statement
which ought in fairness to be considered contemporaneously with it.” Tenn. R. Evid.
106. Likewise, Tennessee Rule of Civil Procedure 32.01(4) provides that “[i]f only part
7
One such purpose can be found in Federal Rule of Evidence 801(d)(1), which provides that a
prior consistent statement may be admissible—as an exclusion to hearsay—either “to rebut an express or
implied charge that the declarant recently fabricated it or acted from a recent improper influence or
motive in so testifying” or “to rehabilitate the declarant’s credibility as a witness when attacked on
another ground[.]” Fed. R. Evid. 801(d)(1)(B)(i)-(ii).
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of a deposition is offered in evidence by a party, an adverse party may require the
introduction at that time of any other part which ought in fairness to be considered
contemporaneously with it.” Tenn. R. Civ. P. 32.01(4). Plaintiff seizes upon the
language conveying contemporaneousness, asserting that the rule of completeness should
have been applied, if at all, “at that time” when Mr. Carnell was impeached by his own
deposition testimony. According to Plaintiff, because Defendant “sat silent” for the
remainder of Plaintiff’s cross-examination of Mr. Carnell, the rule of completeness is
inapplicable. This Court, however, has ruled otherwise. Addressing the rule of
completeness in Wilkes v. Fred’s, Inc., we noted:

[T]he rule regards the timing of the introduction of other portions of the
deposition and reflects rule 106 of the Tennessee Rules of Evidence.
Additionally, however, if the trial court determines that fairness does not
demand that the various portions be considered at the same time, admissible
portions of the deposition may be introduced during the other party’s case-
in-chief or on rebuttal.

Wilkes v. Fred’s, Inc., No. W2001-02393-COA-R3-CV, 2002 WL 31305202, at *4
(Tenn. Ct. App. Aug. 20, 2002). Here, the trial court never made a determination that
“fairness demand[ed] that the various portions be considered at the same time[.]”
However, while Defendant should not have been prohibited from introducing the
subsequent portion of Mr. Carnell’s deposition testimony on re-direct, we are of the
opinion that such error was harmless.

Tennessee Rule of Appellate Procedure 36 provides that “[a] final judgment from
which relief is available and otherwise appropriate shall not be set aside unless,
considering the whole record, error involving a substantial right more probably than not
affected the judgment or would result in prejudice to the judicial process.” Tenn. R. App.
P. 36(b). The record in this case shows that during cross-examination—but before he
was impeached—Mr. Carnell acknowledged that he had told Ms. Foster that he set both
brakes.8 Plaintiff then impeached Mr. Carnell with his deposition testimony, wherein he
admitted he did not set the brakes. On re-direct, Defendant sought to introduce the
following testimony from Mr. Carnell’s deposition:

8
The exact exchange is as follows:

Q: [Y]ou pulled both brakes up?
A: Yes, sir.
Q: Now, my question though, you told that to Ms. Foster after you were with her in the
crane, photographs were being taken, you told her that in your statement; right?
A: Yes.

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 Q: Now, you indicate [in your statement to Ms. Foster] that you set both
brakes when you got to the holster truck. Do you see that?
....
A: Yes. Yes. I see that.
Q: So does that refresh your recollection that when you got into the holster
truck, is it your recollection that you set both brakes?
A: Okay. Yes.
Q: And that includes both the red and white knobs shown in Exhibit 16?
A: Correct.
Q: That’s what you were referencing, when you got down there, you would
have pulled both of those; correct?
A: Correct.

Defendant asserts that, had it been permitted to introduce this testimony, it would have
clarified Mr. Carnell’s trial testimony and “combat[ted] the jury’s misimpression that
Carnell had changed his testimony about setting the brakes and, thus, lacked
credibility[.]” We disagree. The above-quoted portion of Mr. Carnell’s deposition
testimony would neither clarify his trial testimony nor restore his credibility. In essence,
Defendant wished to introduce a portion of Mr. Carnell’s deposition testimony, the
substance of which the jury had already heard because Mr. Carnell himself had already
stated it on cross-examination. Moreover, the above-quoted portion of Mr. Carnell’s
deposition testimony directly conflicts with the physical evidence. Mr. Carnell testified
that he set both brakes, during his deposition, however, Mr. Carnell also testified that he
did not set the brakes or even look at the brakes. Neither of the two sides of his
testimony, however, can be reconciled with the photographs taken by Ms. Foster, which
were introduced into evidence and which clearly show that only one of the two brakes
was set. Under Tennessee Rule of Appellate Procedure 36(b), an error is prejudicial if it
“more probably than not” affected the judgment. For the foregoing reasons, we are of the
opinion that limiting Defendant from introducing the subsequent portion of Mr. Carnell’s
deposition testimony did not affect the judgment and was, therefore, harmless error.

The second evidentiary issue relates to the testimony of Defendant’s human
factors expert, Dr. Arndt. As the record indicates, the December 2, 2016 scheduling
order set April 28, 2017 as the deadline for filing all motions regarding expert witnesses.
At trial, Defendant tendered Dr. Arndt as an expert in the area of human factors, and he
was received as such without objection. Plaintiff never filed a motion in limine regarding
Defendant’s expert witnesses by the scheduling order deadline, but when Defendant
asked Dr. Arndt at trial to “share with us what your opinions were in this case[,]” Plaintiff
objected. Specifically, Plaintiff maintained that Defendant was “going to have [Dr.
Arndt] testify that, in his opinion, [Plaintiff] violated the brake rule, 12.9, and had she
complied with that rule, the truck wouldn’t have rolled.” Thus, according to Plaintiff, Dr.
Arndt’s testimony should be limited to human factors issues and not rule violation issues.

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Defendant took issue with Plaintiff’s objection, arguing that it should have been raised by
the scheduling order deadline. The trial court ultimately sustained Plaintiff’s objection.

We review a trial court’s decision regarding the admissibility of expert witness
testimony under an abuse of discretion standard. As discussed by the Tennessee Supreme
Court:

Generally, questions pertaining to the qualifications, admissibility,
relevancy, and competency of expert testimony are matters left to the trial
court’s discretion. We may not overturn the trial court’s ruling admitting or
excluding expert testimony unless the trial court abused its discretion. A
trial court abuses its discretion if it applies an incorrect legal standard or
reaches an illogical or unreasonable decision that causes an injustice to the
complaining party.

Brown v. Crown Equip. Corp., 181 S.W.3d 268, 273 (Tenn. 2005) (internal citations
omitted). “The trial court, therefore, must determine that the expert testimony is reliable
in that the evidence will substantially assist the trier of fact to determine a fact in issue
and that the underlying facts and data appear to be trustworthy.” Id. at 274. “Moreover,
we emphasize that it is a trial court’s responsibility to act as a gatekeeper regarding the
admissibility of expert testimony.” State v. Lowe, 552 S.W.3d 842, 871 (Tenn. 2018).
“[T]he trial court must assure itself that the [expert’s] opinions are based on relevant
scientific methods, processes, and data, and not upon an expert’s mere speculation.” Id.
(internal quotations and citations omitted). Plaintiff argues on appeal that her failure to
file a motion in limine objecting to certain of Dr. Arndt’s opinions prior to trial does not
preclude the trial court from enforcing “its own independent responsibility as a
‘gatekeeper.’” We agree.

In sustaining Plaintiff’s objection and limiting Dr. Arndt’s testimony, the trial
court maintained that it could not find a connection between his qualifications as a human
factors expert—which, in Dr. Arndt’s own words, involves the study of the “capabilities
and limitations of people as they interact with tools, technology, their environment,
organizations, and other people and information”—and his opinion that “[t]he incident
would have been avoided had [Plaintiff] followed the warning placard in the truck[.]”
After our review of the record, we agree with the trial court. Dr. Arndt’s opinion outside
of his area of expertise was mere speculation and, in the words of the trial court, was
“[not] going to be helpful to the jury”. Accordingly, we are of the opinion that there was
no error in the trial court’s limiting Dr. Arndt from opining as to Plaintiff’s alleged
violation of a company rule or practice.

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 C. Pain and Suffering Damages

Defendant’s final assignment of error is that the trial court erred in denying its
motion for new trial or remittitur because the jury’s award of $3,000,000 for future pain
and suffering damages was excessive and a result of passion and prejudice. We disagree.

As discussed above, in order to grant a new trial in a FELA case tried in state
court, the trial court must apply the federal standard and find that the verdict is against
the clear weight of the evidence. “The question of whether a jury verdict is excessive is
‘resolved by the discretionary consideration of the trial judge.’” Jordan, 2009 WL
112561, at *17 (quoting Cutter v. Cincinnati Union Terminal Co., 361 F.2d 637, 639 (6th
Cir. 1966)). “In a FELA case, a ‘verdict with judgment thereon generally will not be
disturbed on grounds of excessiveness unless it clearly appears to be unsupported by the
evidence.’” Id. (quoting Palmer v. Norfolk S. Ry. Co., No. 03A01-9309-CV-00313, 1994
WL 111037, at *5 (Tenn. Ct. App. Mar. 30, 1994)).

In its ruling, the trial court stated that the $3,000,000 was not excessive “given the
extent of [Plaintiff’s] permanent injuries, the nature of her physical injuries, and the
PTSD[.]” As to the effect the accident had on her life, Plaintiff testified: “It’s pretty
much affected everything I do.” Plaintiff also testified as to her feeling of vulnerability,
her inability to sleep, and her general lack of enjoyment in everyday activities.
Regarding her PTSD, Plaintiff detailed her specific triggering events and her coping
mechanisms for them. Dr. Joseph Hunter, Plaintiff’s primary doctor, testified that the
accident permanently disabled Plaintiff from being able to return to her regular
occupation. Dr. Michael Steur, an interventional pain management doctor to whom Dr.
Hunter referred Plaintiff, testified that his future prognosis regarding Plaintiff’s injuries
was that they would be permanent, and that she would more than likely need between two
and five SI joint injections annually. Upon reviewing this testimony and other evidence
in the record, we find no evidence that the jury’s verdict was the result of passion,
prejudice, or unaccountable caprice. The evidence supports the jury’s award of
$3,000,000 for Plaintiff’s future pain and suffering, and, accordingly, the trial court did
not abuse its discretion in denying Defendant’s motion for new trial or remittitur.

CONCLUSION

For the foregoing reasons, the trial court’s Order on Jury Verdict, as remitted by
the trial court, is affirmed.

_________________________________
ARNOLD B. GOLDIN, JUDGE

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