NO. 84-07
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984
LOUIS J. DALLAS,
Plaintiff and Respondent,
-vs-
BURLIfJGTON NORTHER'X , I J
EC .,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable H. William Coder, Judge presiding.
COUNSEL OF PACORD:
For Appellant:
I<. Kent Koolen argued, Billings, Montana
For Respondent:
Terry Trieweiler argued, Whitefish, Montana
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Submitted: September 27, 1984
Decided: October 15, 1984
Filed: dlb; i i I984
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Clerk
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of
the Court.
Louis Dallas brought an action in the Eighth Judicial
District Court pursuant to the Federal Employers' Liability
Act (FELA) seeking damages for personal injuries sustained
during the course of his employment with Burlington Northern,
Inc. (BN) . Following jury trial a verdict was returned in
favor of plaintiff in the amount of $477,000. Burlington
Northern's motion for a new trial was denied. This appeal
followed. We affirm.
Louis Dallas began working for BN in 1971 as a switchman
and brakeman. In 1975 he was promoted to locomotive
engineer.
On October 18, 1980, Dallas was operating a freight
train from Glasgow, Montana to Minot, North Dakota. He
stopped the train on a siding at Blair, Montana to permit a
westbound train with a superior right to pass. While stopped
on the siding, Dallas decided to use the rest room
facilities.
The toilet compartment, located in the nose of the
locomotive two feet below the floor level of the cab, was
entered through a low doorway on the front wall of the cab.
The stair-step into the compartment was an iron box which
also served as a toolbox. The toolbox structure, two feet
long by one foot high, was secured to the floor of the
compartment by spot welds.
Dallas claims that as he stood with both feet on the
step his weight transferred to the front causing the back to
come completely loose thereby tipping the step forward. When
the step tipped forward Dallas testified that he fell against
the side of the locomotive injuring his left shoulder, lower
neck and back and left knee.
Dallas stated that after his fall, the step was
completely on its side revealing the broken spot welds. The
break in the welds was confirmed by an inspection conducted
by the mechanical department when the locomotive arrived at
Minot, North Dakota. One of the three inspectors who tested
the step in Minot, testified that, despite the broken welds,
he was unable to cause the step to tip forward as described
by Dallas.
There were no eye witnesses to Dallas' accident other
than Dallas himself. A witness statement was taken from the
locomotive fireman, James Morehouse, which indicated that
Morehouse did not see Dallas fall, but heard "banging and all
kinds of commotion . . ." Morehouse died in an off-duty
accident shortly after Dallas' accident, and his unsworn
statement was received in evidence.
Following the accident, Dallas returned to Glasgow,
Montana, acting as fireman instead of engineer because of
soreness resulting from his fall. On October 20, 1980, a
physician's assistant at the Smith Clinic in Glasgow examined
Dallas for his injuries. He found tenderness along the left
paravertebral muscle, diagnosed a muscle spasm and prescribed
rest, heat and relaxants.
When his condition did not improve Dallas was referred
to Dr. Peter Teal, an orthopedic surgeon in Billings,
Montana. On November 4, 1980 Dr. Teal diagnosed an acute
strain of the upper thoracic and lower cervical spine and
prescribed physical therapy and muscle relaxants.
Dallas sought a second medical opinion from Dr. James
I,aidlaw, an orthopedic surgeon, in Kalispell, Montana. He
continued under Dr. Laidlaw's treatment of physical therapy,
medication and cervical traction until the latter part of
1981. Dr. Laidlaw referred Dallas to Dr. Schimpff, a
neurologist, who cared for Dallas from November, 1981 to
June, 1983. Dr. Schimpff ' s recommended course of treatment
was intermittent use of anti-inflammatory agents,
intermittent physical therapy, and curtailment of physical
activities. Dr. Schimpff was unable to pinpoint a single
basis for plaintiff's complaints, but offered three possible
diagnoses: either a herniated cervical disc; a thoracic
outlet syndrome; or a chronic strain.
No myelogram nor surgical procedures were performed in
connection with this injury. Dallas was hospitalized for
injuries sustained in a head-on automobile accident on August
18, 1982, but never was admitted to a hospital as a result of
the accident which is the subject of this appeal.
Dallas presented evidence that he was only able to work
about 70% of the time without aggravating his symptoms. He
claimed a loss of future earning capacity equivalent to a 30%
reduction in his full-time wages. An economist testified
that Dallas' past wage loss was approximately $62,000 and his
loss of future earning capacity was $415,000.
The trial court granted a partial summary judgment in
favor of Dallas finding that BN had violated the Federal
Boiler Inspection Act. The issues of causation and damages
were submitted to the jury. A verdict was returned which
awarded $477,000, a figure which equals the sum of past lost
wages And loss of future earning capacity as reflected in the
economic projection of plaintiff's expert.
Burlingtion Northern presents the following issues on
appeal :
1. Whether the trial court erred in granting Dallas'
motion for partial summary judgment on the violation of the
Federal Boiler Inspection Act?
2. Whether the medical testimony offered by Dallas'
physicians was sufficiently certain to be admitted and
sufficiently probative to carry plaintiff's burden of proof
on the medical issues?
3. Whether the trial court erred in refusing to
instruct the jury regarding the effect of income taxes on the
damages claimed by Dallas and awarded by the jury?
4. Whether the trial court erred in permitting Dallas
to present testimony of a previously unidentified rebuttal
witness?
5. Whether the verdict was excessive as a matter of
law?
Summary judgment is not a substitute for trial and can
only be granted when the record discloses no genuine issue of
material fact entitling the moving party to a judgment as a
matter of law. Hansen v. Transamerica Inc. Co. (1978), 175
Mont. 273, 573 P.2d 663.
Here the evidence clearly shows that the welds were
broken. There is a conflict in the evidence respecting
whether the breaking of the welds would cause the step to tip
thereby causing the accident in question. The question
becomes whether the Federal Boiler Inspection Act is violated
as a matter of law given this factual record. The Act
provides in relevant part that:
"It shall be unlawful for any carrier to use or
permit to be used in 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 from time to time in
accordance with the provisions of sections 28 to 30
and 32 of this title and are able to withstand such
test or tests as may be prescribed in the rules and
regulations as may be hereinafter provided for."
45 U.S.C. section 23.
Plaintiff's action was instituted under the Federal
Employers' Liability Act, (FELA), 45 U.S.C. section 51, which
provides in relevant part that:
"Every common carrier by railroad while engaging in
commerce between any of the several States and
Territories ... shall be liable in damages to any
person suffering injury while he is employed by
such carrier in such commerce ... for such injury
or death resulting in whole or in part from the
negligence of any of the officers, agents, or
employees of such carrier, or by reason of any
defect or insufficiency, due to its negligence, in
its cars, engines ... or other equipment."
The United States Supreme Court discussed absolute
liability features of section 23 and its interrelation with
section 51, in Lilly v. Grand Trunk Western R. Co. (19431,
317 U.S. 481, 485-86, 63 S.Ct. 347, 87 L.Ed. 411. The Supreme
Court said:
"Negligence is not the basis for liability under
the Act. Instead, it 'imposes upon the carrier an
absolute and continuing duty to maintain the
locomotive, and all parts and appurtenances
thereof, in proper condition, - safe to
and
operate ...without unnecessary peril to life or
limb.' (citations omitted.) Any employee engaged
in interstate commerce who is injured by reason of
a violation of the Act may bring his action under
the Federal Employer's Liability Act, charging the
violation of the Boiler Inspection Act (citations
omitted.) The Act, like the Safety Appliance Act,
is to be liberally construed in light of its prime
purpose, the protection of employees and others by
requiring the use of safe equipment. I' (Emphasis
added. )
We must engage liberal construction in favor of
protecting the employees. We construe the carrier's
obligation under the Act to be dual. The carrier must
maintain locomotive parts and appurtenances in proper
condition - must
and maintain the locomotive in such a
condition as to prevent unnecessary peril to life or limb.
The railroad in this case was obligated under the Act to
perform both duties and its failure in either regard rendered
it in violation. Here the undisputed facts show that the
spot welds were broken; therefore parts and appurtenances
were not in proper condition. The trial court was entitled
to find a violation of the Act from the existence of broken
spot welds without more.
The trial court properly left the question of causation
to the jury. The jury was correctly instructed that BN
violated the Act but before the jury could find for the
plaintiff they must find that the defective welds caused an
accident injuring Dallas. We find the trial court properly
interpreted and applied the federal law.
BN contends that plaintiff's medical evidence was not
sufficiently certain to be admissible. BN further argues
that the medical testimony is so speculative that it failed
to provide a basis for consideration of permanent impairment
to earning capacity.
Dallas primarily relied upon the testimony of Dr. Peter
V. Teal, the orthopedic surgeon, and Dr. Robert D. Schimpff,
the neurologist.
The thrust of BN's argument is that these two doctors
were unable to pinpoint the exact etiology of Dallas' injury.
Certainly the record does not support a finding that Dallas
suffered from a herniated disc. On cross-examination, Dr.
Teal testified as follows:
"Q. So it is not your opinion then, to any
reasonable degree of medical certainty, that his
problems, his complaints are due to an injury of
the disc in the spine?
"A. No, I cannot say with any reasonable degree of
medical certainty that he injured his disc in his
spine. "
Dr. Schimpff testified that Dallas' injury was one of
three things: (1) a soft tissue injury (2) a thoracic
outlet syndrome (3) a herniated disc. Dr. Schimpff was
unable to determine which of the three conditions was
producing symptoms.
There is abundant medical testimony in the record to
support Dallas' claim of injury. That claim does not fail
because of the doctors' uncertainty about the type of injury
involved. Many of the symptoms produced by the three
described etiologies are similar. The doctors agreed that
the plaintiff was injured as the result of the trauma
suffered in the accident. That is sufficient.
BN contends there is insufficient evidence of
permanency. With respect to evidence of permanent injury the
following questions, objections and answer are taken from the
record:
"Q. Do you feel that his present condition then
and restrictions from that condition are permanent?
"MR. KOOLEN: Objection is leading.
"In your opinion, are then his present limitations
permanent?
"MR. KOOLEN: Objection.
"THE COURT: I will let him answer that.
"Q. Let me re-ask the question. Based upon your
examinations and treatment of Mr. Dallas over the
length of time that you have described, in your
opinion that his condition is stabilized, do you
have an opinion whether his condition is going to
get any better in the future?
"A. Based on the fact that I have not seen many
changes in his condition over the last many months,
I don't see any indication, any medical indication
that would suggest that he would enter into a
recovery period. Being an optimist as I am, I
would hope that he would enter into a recovery
period but I think we have adopted measures which
allow him to exist productively although with
intermittent discomfort and I don't really expect
that to change."
We agree with BN that the answer given by Dr. Schimpff
is not strong and clear. This Court has generally adhered to
a test of "reasonable medical certainty" as the basis for
admissibility although we do not require of doctors the same
strictness in testifying that was once required. See
Stordahl v. Rush Implement Company (1966), 148 Mont. 13, 417
P.2d 95. Although we still formally adhere to a "reasonable
medical certainty" standard, the term is not well understood
by the medical profession. Little, if anything, is "certain"
in science. The term was adopted in law to assure that
testimony received by the fact finder was not merely
conjectural but rather was sufficiently probative to be
reliable. We are striving for, what in fact, is a
probability rather than a possibility. Our evidentiary
standards are satisfied if medical testimony is based upon an
opinion that it is "more likely than not. " We find that Dr.
Schimpff's testimony regarding "permanency" was sufficient
for the jury to find it probable that Dallas' present
symptomatic condition would not improve during his lifetime.
BN contends that the trial court erred in refusing to
instruct the jury on the nontaxability of any award made by
the jury. BN relies upon the United States Supreme Court
case of Norfolk and Western RR v. Liepelt (19801, 444 U . S .
490, 100 S.Ct. 755, 62 L.Ed.2d 689. The Supreme Court held
it was reversible error to fail to instruct on the
nontaxability of the award where a jury, in a wrongful death
case, awarded more than twice the amount plaintiff's proof
showed for loss of support. The court was convinced that the
jury had added to the award an amount for claimant to be able
to satisfy an income tax obligation on the award. The court
said:
" ' [t]o put the matter simply, giving the
instruction can do no harm, and it can certainly
help by preventing the jury from inflating the
award and thus overcompensating the plaintiff on
the basis of an erroneous assumption that the
judgment will be taxable. ' I
' (citations omitted. )
444 U.S. at 498.
In Flanagan v. Burlington Northern, Inc. (8th Cir.
1980), 632 F.2d 880, Chief Judge Donald P. Lay, writing for
the Court, distinguished Flannagan from Liepelt. In
Flannagan the jury, unlike the jury in Liepelt, had not
awarded an amount clearly in excess of plaintiff's proven
damage figure. Judge Lay said:
". . .
the prejudicial effect of a failure to give
a nontaxability instruction should be decided on
the existence of evidence that the jury did, in
fact, operate under a false impression of the tax
laws." Flanaqan, 632 F.2d at 890.
In addressing the Liepelt decision, the opinion said:
'.
I .
. The Liepelt jury awarded the plaintiff
$775,000 whereas the plaintiff's own economist
testified to lost earnings of only $302,000. This
large disparity between the evidence and the
verdict greatly influenced the Supreme Court in
deciding that the failure of the trial court to
give a nontaxability instruction was prejudicial
error." -Id.
In this case the jury awarded $477,000 which was the
exact figure projected by the economist for lost wages and
loss of earning capacity. This jury clearly did not award a
sum for some future tax obligation. Therefore, any error in
failing to give a nontaxibility instruction is harmless.
BN claims error in admitting rebuttal testimony from a
witness not noticed. However BN produced a witness, not
previously noticed as an expert, to testify that freight
locomotives do not vibrate unduly. Such testimony was
offered to refute plaintiff's claimed inability to work. To
rebut this plaintiff offered testimony from a witness not
previously disclosed. The testimony vividly demonstrated the
vibration characteristics of a freight locomotive. The
testimony was rebuttal. No statute or rule mandates notice.
There was no court order requiring notice. Notice was not
required.
BN also argues that the testimony offered by the
rebuttal witness should have been introduced in plaintiff's
case in chief. Admission of rebuttal testimony invokes the
discretion of the trial court. McGee v. BN (1977), 174 Mont.
466, 571 P.2d 784, 792. We find no abuse of discretion in
this case.
Finally, BN argues the verdict was excessive. Dallas
testified that his injury and consequent pain reduced his
mileage by 30%. Locomotive engineers are paid by the mile.
Rased upon this testimony an economist projected loss of
future earning capacity at $415,000. Lost earnings to date
of trial were $62,000. The total was $477,000, the exact
amount of the jury's award.
The award is large considering that the medical
testimony only supports a permanent soft tissue injury in the
neck and back. However, the testimony showed that Dallas
earned $1.08 per mile and, without injury, averaged more than
4,000 miles per month. An annual income of $50,000,
diminished by 30%, represents a very significant loss of
earning capacity. The economist's projection was based upon
this evidence a.nd supports the jury's award.
The only uncontroverted fact, the existence of defective
spot welds, was removed from the jury. All controverted
facts were submitted to the jury under proper instructions.
The jury resolved nearly all factual controversies in favor
of Dallas which they were entitled to do. We find no error.
The judgment in favor of Dallas is
We concur:
v-4&
Chief Justice
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