Free Trial Brief - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Phillip S. Figa Civil Action No. 03-cv-2451-PSF-CBS

BRYCE E. CARLEY, Plaintiffs, v. UNION PACIFIC RAILROAD COMPANY, a corporation, Defendant.

DEFENDANT'S TRIAL BRIEF

COMES NOW Defendant, Union Pacific Railroad Company ("Union Pacific"), by and through its undersigned attorneys, and hereby submits the following Trial Brief. I. FACTS On July 11, 2002, conductor Bryce E. Carley claims that as he was applying the hand brake on the car designated UPFE 466316 when the rod linking the hand brake chain to the bell crank snapped causing him to injure his left shoulder. On September 19, 2002, Dr. Cameron performed an arthroscopic surgery during which time she removed a large subacromial spur and found and repaired a tear in the labrum. Dr. Cameron has testified that this large subacromial spur was a pre-existing condition that was aggravated by the accident. On October 22, 2002, Dr. Cameron saw Mr. Carley and at that time Mr. Carley was complaining of pain in his left shoulder. Mr. Carley continued

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to complain of pain in his left shoulder and Dr. Cameron planned to perform another arthroscopic surgery to fix a loose tissue tack in the labrum. Dr. Cameron moved from Cheyenne to Casper and Mr. Carley transferred his care to Dr. Richard Hawkins of the Steadman Hawkins Clinic in Vail, Colorado. On February 18, 2003, Dr. Hawkins

arthroscopically examined the left shoulder and found a detached labrum, an intact rotator cuff and a Bankart lesion on the glenoid surface. Dr. Hawkins performed a left shoulder Bankart repair, attached the labrum and performed a left shoulder thermal capsular shrinkage. On May 5, 2003, Mr. Carley was seen by Dr. Hawkins and at that time Mr. Carley reported that he had left shoulder pain which Dr. Hawkins thought was post-surgical subacromial scarring and stiffness. Dr. Hawkins injected the stiff left shoulder and

prescribed physical therapy. In the latter part of June, 2003, Dr. Hawkins performed an AC joint resection removing a spur in the AC joint in Mr. Carley's left shoulder. Dr. Hawkins has testified that the spur in the AC joint was present before the accident and that the accident aggravated this pre-existing condition. On December 15, 2003, Mr. Carley complained to Dr. Hawkins that the AC joint resection did not help to relieve his left shoulder pain. Dr. Hawkins recommended a biceps release which Mr. Carley

declined. Dr. Hawkins was of the opinion that Mr. Carley was at Maximum Medical Improvement. Bronco Sports Medicine performed a Functional Capacity Evaluation in early October of 2004. The Union Pacific Medical Department reviewed this FCE and

released Mr. Carley to return to work as a conductor. Mr. Carley was afraid that if he

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returned to work as a conductor he would re-injure his shoulder. However, he expressed some interest in returning to work as an engineer. Manager of Operating Practices Dave Stimac put Mr. Carley in the engineer training class starting on October 25, 2004. Mr. Carley's engineer seniority date was changed to the date he would have had if he had entered the engineer's class which started in the Fall of 2002. On April 15 of 2005 Mr. Carley became a fully qualified locomotive engineer with a seniority date that will ensure that he will never be put back as a conductor. II. APPORTIONMENT FOR PRE-EXISTING CONDITIONS Defendant has tendered a jury instruction, a carrying instruction and a special verdict form covering the issue of aggravation of pre-existing condition and apportionment of damages to the pre-existing condition. Defendant provides the

attached copy of the Tenth Circuit's decision in Sauer v. Burlington Northern Railroad Company, 106 F.3d 1490 (10th Cir. 1997) and a copy of the jury instruction and special verdict form that was used by the trial court in the Sauer case and approved by the Tenth Circuit in support of Defendant's argument that the Court should give the jury Defendant's tendered instruction on aggravation of pre-existing condition, and the carrying instruction and verdict form covering the issue of aggravation of pre-existing condition and apportionment of damages to that pre-existing condition. Defendant anticipates that Plaintiff may argue that the jury should not be given an instruction on aggravation of pre-existing condition and that the carrying instruction and verdict form should not include the issue of aggravation of pre-existing condition based on the U.S. Supreme Court's decision in Norfolk & Western Ry. Co. v. Ayers, 123

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S.Ct. 1210 (2003). However, the issue before the Ayers Court was the apportionment of a third-party's concurrent negligence rather than a plaintiff-employee's pre-existing condition. In Myers v. Union Railroad, 865 A.2d 857 (Pa. Super. 2004), the Superior Court of Pennsylvania found that the trial court had committed reversible error when it refused, pursuant to its interpretation of Ayers, to give the railroad's requested jury instruction on aggravation of pre-existing condition. In the Meyer case, Union Railroad's expert medical witnesses testified that Mr. Meyer's accident aggravated pre-existing degenerative disc disease in his back. Therefore, Union Railroad argued that it was entitled to a jury instruction on aggravation of a pre-existing condition. Union Railroad argued that under the FELA, a railroad employer is only required to pay for damages caused by its negligence. Specifically, Union Railroad maintained that the FELA allows damages to be apportioned in instances where the employee's injury was an aggravation of a pre-existing condition. Based on the holding in Ayers, the trial court refused to give Union Railroad's proposed jury instruction on aggravation of a preexisting condition. On appeal Union Railroad argued that the court's charge did not properly instruct the jury on this issue and that the error was fundamentally unfair and prejudicial to the railroad's defense. On appeal, the Superior Court of Pennsylvania overturned the decision of the trial court, stating as follows: "[In Ayers] Justice Ruth Bader Ginsberg concluded that FELA does not sanction apportionment of damages between a railroad employer and a concurrently liable third party." Id. at 865. (Emphasis added). The Superior Court

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specifically noted that Justice Ginsberg's opinion "did not address whether a plaintiff's pre-existing condition was apportionable under FELA..." Id. at 865. (Emphasis

added). The Superior Court of Pennsylvania refused to extend the holding in Ayers to support the trial court's refusal to instruct the jury on aggravation of pre-existing condition. As such, any reliance on Ayers by Plaintiff to support his argument that Defendant is not entitled to a jury instruction on aggravation of pre-existing condition is misplaced. In Rust v. Burlington Northern and Santa Fe Railway Co., 308 F.Supp.2d 1230 (D.Colo. 2003), defendant argued that plaintiff's injuries were caused in part by a "preexisting degenerative medical condition." 308 F.Supp.2d at 1230. Plaintiff filed a

motion in limine to exclude evidence of this condition, arguing that it was inadmissible under Ayers. The district court rejected this argument, finding that "Ayers is by no means dispositive." 308 F.Supp.2d at 1231. Turning to the more relevant authority of Sauer v. Burlington Northern Railroad Co., 106 F.3d 1490 (10th Cir. 1996), and Stevens v. Bangor and Aroostook Railroad Co., 97 F.3d 594 (1st Cir. 1996), the Court found that evidence of the plaintiff's pre-existing medical condition is relevant to the issues of both liability and damages. Id. Thus, contrary to Plaintiff's arguments, Sauer, and not Ayers, controls the issue of the Defendant's right to a jury instruction on aggravation of a preexisting condition. III. MITIGATION OF DAMAGES A party is entitled to an instruction on its theory of the case whenever it produces evidence to support it. Wilson v. Union Pac. R.R. Co., 56 F.3d 1226 (10th Cir. 1995). A

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railroad employee has a duty to mitigate damages by returning to gainful employment as soon as reasonably possible. Taylor v. Denver & Rio Grande W.R.R. Co., 438 F.2d 351 (10th Cir. 1971). A railroad employee who is able to look for work does not satisfy his duty to mitigate by waiting passively for employment to be offered. The opportunity to mitigate is not merely the opportunity to accept a job, but the opportunity to seek appropriate work when one is able to do so. If that opportunity is shown to exist, the issue of mitigation should be submitted to the jury. Wilson v. Union Pac. R.R. Co., 56 F.3d 1226 (10th Cir. 1995). The evidence will establish that Plaintiff was release to return to work as a conductor and refused to return to work as a conductor. Based on the foregoing there is sufficient evidence for the jury to conclude that Plaintiff was able to work and had an opportunity to seek appropriate work. A

determination of whether Plaintiff's conduct constitutes a reasonable effort to mitigate his damages under the circumstances is a question of fact for the jury. As such,

Defendant requests that the trial court instruct the jury on mitigation of damages. See Trejo v. Denver & Rio Grande W. R.R. Co., 568 F.2d 181 (10th Cir. 1977). DATED this 8th day of September, 2005. Respectfully submitted,

_s/Mark C. Hansen_______ MARK C. HANSEN Union Pacific Railroad Company 1331 17TH Street, Suite 406 Denver, CO 80202 (303) 964-4583 FAX: (303) 964-4585

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CERTIFICATE OF SERVICE I hereby certify that on this 8th day of September, 2005, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: [email protected] Sabina Y. Chung, Esq. Jack D. Robinson, Esq. SPIES, POWERS & ROBINSON, P.C. 1660 Lincoln Street, Suite 2220 Denver, CO 80264 Fredric A. Bremseth, Esq. Thomas W. Geng, Esq. BREMSETH LAW FIRM 810 East Lake Street Wayzata, MN 55391

[email protected]

I certify that there are no non CM/ECF participants in this case.

_s/Mark C. Hansen_______ MARK C. HANSEN Union Pacific Railroad Company 1331 17TH Street, Suite 406 Denver, CO 80202 [email protected]

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