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When an injured worker suing under the Federal Employers Liability Act (FELA) suffers from a pre-existing condition that may have inevitably led to the same injury he sustained in an on-the-job accident, the jury must be instructed to consider an apportionment of damages that accounts for that possibility, the Pennsylvania Superior Court has ruled. In its 22-page opinion in Meyer v. Union Railroad Co., a unanimous three-judge panel overturned a $600,000 verdict in favor of an injured railroad worker, holding that an Allegheny County, Pa., judge erred by failing to instruct the jury to consider whether the plaintiff’s pre-existing degenerative disc disease would have led to the same injury. Judge Mary Jane Bowes, in an opinion joined by Judges Joseph A. Hudock and Maureen E. Lally-Green, found that the federal courts have approved of instructions calling for an apportionment of damages where the defendant presents sufficient evidence connecting the injury to a pre-existing condition. The ruling is a victory for attorney Scott David Clements of Dickie McCamey & Chilcote in Pittsburgh, who argued that Union Railroad was entitled to an apportionment instruction because doctors testifying for the defense opined that plaintiff James D. Meyer’s injuries may have been caused by his degenerative disc disease. Clements argued that Allegheny County Common Pleas Judge Michael A. Della Vecchia refused to give any apportionment instruction, and instead told the jury that, while injuries may have more than one cause, “involvement of any other cause does not prevent a finding for the plaintiff as long as you can find that the employer’s negligence played any part, no matter how slight, in causing an injury.” In the suit, Meyer claimed he was injured while working as a brakeman as he attempted to disconnect a caboose. Meyer testified that, as he pulled on a lever, he “felt something pop” in his right elbow. At first, Meyer said, he did not think the injury was serious; but by the next day, he said, he felt tingling and numbness in his arm. Meyer testified that he attempted to return to work in September 2000, but that the pain in his arm “reached a point where I could no longer work.” Ultimately, Meyer underwent surgery, but said it only partially cured his symptoms and that he continued to suffer from muscle spasms, pain and difficulty turning his neck. He said he has not returned to work since September 2000. At trial, Clements proposed the following jury instruction: “If you find the plaintiff had a pre-existing condition or disability at the time of the accident and that there was a likelihood that he would have sustained the injury about which he complains even if the accident had not occurred, you are to reduce the amount of damages which you award plaintiff by the degree of that likelihood.” Della Vecchia refused to give the instruction, and the jury returned a verdict that said Union Railroad was negligent and had violated the Federal Safety Appliance Act (FSAA). The jury awarded Meyer $600,000 after finding that Union Railroad’s negligence and FSAA violation had played a part in causing Meyer’s injury. On appeal, Union Railroad argued that, under FELA, an employer is required to pay only those damages that its negligence played a part in causing. As a result, the railroad argued, FELA allows for damages to be apportioned where the injury was potentially caused by a pre-existing condition. Clements argued that Union Railroad was entitled to just such an instruction in Meyer’s case because medical experts testifying for the defense told the jury that Meyer’s degenerative disc disease was a possible cause of his injuries. Now the Superior Court has ruled that Clements was right, and that the federal courts have approved of such apportionment instructions. Bowes found that the 10th U.S. Circuit Court of Appeals, in its 1997 decision in Sauer v. Burlington Northern Railroad Co., upheld a trial judge’s instruction to a jury to “reduce the damages by the likelihood that Sauer would eventually have suffered the injury even if the accident had not occurred.” Although the plaintiff in Sauer had not challenged the instruction, Bowes found that the 10th Circuit, in dicta, noted that the instruction was a “correct statement of the law.” Bowes also found that federal case law on apportionment in FELA cases supported Union Railroad’s argument because courts have routinely held that, when a defendant’s negligence merely aggravates a plaintiff’s pre-existing condition, the defendant is liable only for the increased injury caused by its negligence. “Hence, apportionment clearly is within the ambit of FELA,” Bowes wrote. Applying the law to Meyer’s case, Bowes found that Union Railroad was entitled to an apportionment instruction because it had satisfied its evidentiary burden at trial. Bowes noted that two doctors — a neurologist and an orthopedic surgeon — both testified that Meyer’s pre-existing degenerative disc condition could have caused his injury. As a result, Bowes said, “the trial court erred in refusing to charge the jury relating to the apportionment principle.” Bowes found that Union Railroad is entitled to a new trial because “the jury charge did not cover apportionment aside from a reference to comparative negligence and did not even discuss the pre-existing condition as a possible cause for the injury.” Meyer was represented in the appeal by attorney Mark T. Coulter of Peirce Raimond & Coulter in Pittsburgh.

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