X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
The full case caption appears at the end of this opinion. COFFEY, Circuit Judge. Brian Kossman broughtthis action against his employer, NortheastIllinois Regional Commuter Railroad d/b/a Metra(Metra), pursuant to the Federal Employers’Liability Act, 45 U.S.C. sec. 51 et seq. (FELA),claiming that he suffered a shoulder injury inthe course of his employment while unloadingsupplies from a delivery truck. After trial, thejury returned a verdict for Kossman in the amountof $304,000, [FOOTNOTE 1] Metra moved for judgment as amatter of law or, in the alternative, for a newtrial. The court [FOOTNOTE 2] denied the motions and Metraappeals. We affirm. I. BACKGROUND The facts of this case are quite simple.Kossman, employed as an “extra clerk” [FOOTNOTE 3] forMetra, was directed, on September 9, 1994, toassist in the unloading of a truck which had comein with 55-gallon barrels of cleaning supplies onpallets; a task he had done approximately fiftytimes in the past. According to Kossman, thisload was unusual in that, instead of each palletcontaining a single 55-gallon barrel, some of thepallets in this shipment contained as many asthree 55-gallon barrels. The employees were assisted in removing andtransporting the pallets from the bed of thedelivery truck to the warehouse by a pallet jack.A pallet jack is a four-wheeled, hydraulic liftdevice designed for lifting and moving heavyloads from one location to another. To move apallet, the forks of the jack are placed underthe top deck of the loaded pallet, and thehydraulic lift, when activated, raises the palletoff the floor. The jack (now with the loadedpallet) is then normally rolled off the bed ofthe truck and onto the loading dock. While Kossman was in the process of unloadingthe cleaning supplies, the forks of the jackbecame locked, in an unmovable position, under apallet loaded with three 55-gallon barrels. AsKossman attempted to free the jack, he “kind ofheard a little pop or crack [in his shoulder],but [he] didn’t really think anything of it atthe time because it [sic] wasn’t immediate pain.”After he unsuccessfully attempted to free thejack, Kossman asked one of his co-workers forassistance, and the two men eventually freed thejack, but Kossman still faced other obstacles; a3-6 inch vertical space existed between thetruck’s unloading gate and the dock. [FOOTNOTE 4] In order to unload the pallets, as Kossman wasrequired to do that day, employees are forced tomake a running jump with the loaded pallet jack,leaping from the truck bed to the dock below.Because of the configuration of the dock, theemployees are then forced to make an immediateand sharp turn to avoid crashing into, or flyingover, a railing on the other side of the loadingdock. As Kossman attempted to perform thismaneuver with the jack holding the three 55-gallon barrels, he “just felt a strain, like Ihad pulled a muscle or something.” Immediately after the incident Kossman only feltlike he had a muscle strain, but the next day hisarm “was totally immobilized” and he “couldn’tmove it at all” because of the pain anddiscomfort. Kossman visited the company doctorand was immediately “taken out of service.”Because Kossman’s pain continued, he went to anorthopedic surgeon and was directed to undergoarthroscopic surgery on his shoulder; a procedurehe had twice, once in 1995 and again in 1998.Despite these surgeries and physical therapy, andalthough he has now regained some of the lostrange of motion in his shoulder, Kossman “isnever comfortable” and is still unable to returnto work and perform his usual duties, and has yetto return to any form of employment. [FOOTNOTE 5] Based on the injury suffered while unloadingthe barrels of cleaning supplies, Kossman filedthis action against Metra alleging that Metrafailed to provide him with a safe place to workby: 1) failing to adopt and implement a safemethod and procedure for unloading supplies; 2)failing to provide adequate equipment; 3)assigning him work that was beyond his knownphysical ability; 4) failing to providesufficient personnel to unload the supplies; 5)improperly training him to use unsafe methods; 6)improperly supervising him; 7) failing toproperly secure the loading pallet; and 8)failing to exercise ordinary care to provide himwith a safe place to work. The complaint allegedthat one or more of the foregoing negligent actsor omissions caused, in whole or in part,Kossman’s shoulder injury. Because neither party requested a specialverdict, the trial judge allowed the jury toreturn a general verdict for Kossman (withoutanswering any interrogatories). After the juryawarded Kossman $304,000, Metra moved forjudgment as a matter of law or, in thealternative, for a new trial. With respect to Kossman’s claim that Metrafailed to adopt and implement a safe method andprocedure for unloading the pallets from thetruck, the trial judge concluded that Kossman didprovide sufficient evidence to support the jury’sverdict. The court reasoned that the jury, viewing Plaintiff’s [evidence] andusing its own common sense, could have concludedthat pushing and pulling a five-foot-long palletjack loaded with from 1200 to 1500 pounds ofcargo at a speed that would allow the jack tojump a three- to six-inch gap and require thejack operator to quickly turn the handle, uponlanding, to avoid being thrown into or over therailing, which was located about five feet fromwhere the pallet landed, was unreasonably unsafe.Based on the evidence presented in the case, thisis the only theory on which the jury could havesupported its decision, and it is not anunreasonable one. The magistrate judge then denied Metra’s motionsfor judgment as a matter of law and for a newtrial. Metra appeals. II. ISSUES On appeal Metra argues that the district courterred in: 1) denying its motions for judgment asa matter of law and for a new trial; and 2)informing the jury that Kossman was ineligiblefor worker’s compensation benefits. III. ANALYSIS A. The FELA FELA, enacted in 1908, provides a federal tortremedy for railroad employees, such as Kossman,injured on the job. See Williams v. NationalRailroad Passenger Corp., 161 F.3d 1059, 1061(7th Cir. 1998). Unlike worker’s compensationstatutes, FELA requires Kossman to provenegligence on the part of Metra. See id. However,the Supreme Court has held that the negligencestandard is relaxed in FELA cases and aplaintiff, in order to get his case to the jury,need only produce evidence which demonstratesthat the “‘employer['s] negligence played anypart, even the slightest, in producing the injury.’”Consolidated Rail Corp. v. Gottshall, 512 U.S.532, 543 (1994) (quoting Rogers v. MissouriPacific R. Co., 352 U.S. 500, 506 (1957)). Aplaintiff, therefore, carries a lighter burden ina FELA action than in an ordinary negligencecase. See Harbin v. Burlington Northern Ry. Co.,921 F.2d 129, 132 (7th Cir. 1990) (notingexamples of FELA actions submitted to jury basedonly upon “evidence scarcely more substantialthan pigeon bone broth”). Furthermore, courts”have interpreted [FELA] liberally in light ofits humanitarian purposes.” Williams, 161 F.3d at1061 (citing Metro-North Commuter R. Co. v.Buckley, 521 U.S. 424, 429 (1997)). All this being true, FELA “is not an insurancestatute.” Gottshall, 512 U.S. at 554. A plaintiffbringing an action under FELA “who fails toproduce even the slightest evidence ofnegligence” should not be permitted to go totrial. Williams, 161 F.3d 1061-62. In otherwords, a plaintiff who brings a successful claimunder FELA must establish that the defendantbreached its duty by demonstrating that “areasonable person would foresee [the allegedcircumstances] as creating a potential for harm.”McGinn v. Burlington Northern R.R. Co., 102 F.3d295, 300 (7th Cir. 1996). Given the plaintifffriendly nature of FELA, it is easy to understandwhy the trial judge did not commit error whendenying Metra’s motions for judgment as a matterof law and for a new trial. B. Motions for Judgment as a Matter of Law and fora New Trial As stated previously, Metra challenges thedistrict court’s denial of its post-trial motionsfor judgment as a matter of law or,alternatively, for a new trial. We review thedenial of a motion for judgment as a matter oflaw de novo. See Tincher v. Wal-Mart Stores,Inc., 118 F.3d 1125, 1129 (7th Cir. 1997).Judgment as a matter of law may be entered where”there is no legally sufficient evidentiary basisfor a reasonable jury to find for [a] party on[an] issue.” Fed. R. Civ. P. 50. Furthermore,this Court must, after reviewing the record anddrawing all reasonable inferences in the lightmost favorable to Kossman, determine whether theverdict is supported by sufficient evidence. SeeTincher, 118 F.3d at 1129. Although we review thedenial of a motion for judgment as a matter oflaw de novo, our review of the denial of Metra’smotion for a new trial is under the abuse ofdiscretion standard. See Robinson v. BurlingtonNorthern R.R., 131 F.3d 648, 656 (7th Cir. 1997).Additionally, we will not overturn a jury’sverdict “[a]s long as there is a reasonable basisin the record to support it.” Id. In the present case, Kossman was directed tounload cleaning supplies from a truck parked atthe loading dock, and consistent with Metra’spolicy, Kossman was required to push and pull afive-foot-long pallet jack loaded with three 55-gallon drums that weighed approximately 1200 to1500 pounds. In order to accomplish the unloadingof these pallets, Kossman was forced to pull theload with enough speed so as to allow thehydraulic jack, holding the loaded pallet, tojump a three- to six-inch space. [FOOTNOTE 6] Kossman,after generating the necessary speed to jump thegap and land on the loading dock, was alsorequired to make an immediate and sharp turn inorder to avoid being catapulted into, or goingover, the railing which was located a mere fivefeet from the point where the loaded jack leftthe truck. The jury was well within itsdiscretion to conclude that this was a mostunsafe practice and that Metra should haveforeseen that such an unloading practice couldresult in an injury. We are also of the opinionthat with the information cited above in therecord there is more than a reasonable basis inthe record to support the jury’s conclusion thatKossman was injured when he was unloading theloaded pallets from the truck in the mannerdescribed above because of Metra’s failure toadopt and implement a safe method and procedurefor unloading the pallets from the truck.Accordingly, we agree with the trial judge thatMetra was not entitled to judgment as a matter oflaw. Metra also attacks the jury verdict, claimingthat it should have been given a new trialbecause the evidence was insufficient to supportthe jury’s verdict and the damages awarded toKossman were excessive. With respect to the claim that there wasinsufficient evidence presented to the jury tosupport its verdict, we are of the opinion thatthe evidence before the jury, described above,did, in fact, provide more than a sufficientbasis for a reasonable jury to return a verdictfor Kossman. This is especially true because eventhough some of the issues presented to the jurywere later ruled to be legally insufficient,Metra, for reasons unexplained, failed to requesta special verdict or a general verdict withanswers to written interrogatories. Because thedefendant never requested any special form ofverdict, the jury only returned a general verdictfor Kossman. And when a jury only returns ageneral verdict, we need only find support in therecord for one of the theories presented to thejury in order to affirm the jury award. See,e.g., Wassel v. Adams, 865 F.2d 849, 855 (7thCir. 1989); Culli v. Marathon Petroleum Co., 862F.2d 119, 123 (7th Cir. 1988). As detailed above, the jury was provided withsufficient evidence to reasonably conclude thatthe procedure Kossman was required to employ inorder to remove pallets loaded with three 55-gallon barrels was unreasonably dangerous andthat an injury, such as the one suffered byKossman, was or should have been foreseeable toMetra. We thus refuse to hold that the districtcourt abused its discretion in refusing to grantMetra a new trial based on the sufficiency of theevidence. As noted above, the jury awarded Kossman$100,000 for loss of future income. Metra claimsthat because this award was against the manifestweight of the evidence, the judge abused hisdiscretion in denying its motion for a new trial.However, we will not reverse an award of damagesfor lost wages because of questionableassumptions unless it yields an unreasonableresult. See O’Shea v. Riverway Towing Co., 677F.2d 1194, 1201 (7th Cir. 1982). Indeed, “[a]trial judge may vacate a jury’s verdict forexcessiveness only when the award was monstrouslyexcessive or the award had no rational connectionto the evidence.” Debiasio v. Illinois CentralR.R., 52 F.3d 678, 686 (7th Cir. 1995) (citationsand internal quotations omitted). On appeal, Metra claims that the award of$100,000 for loss of future earnings wasexcessive and against the manifest weight of theevidence because: 1) the injury was not as severeas Kossman claimed; and 2) Kossman’s “vocationaleconomist” should not have been allowed totestify. In order to support its claim that Kossmanexaggerated the severity of his injury, Metraargues that there was a general “lack oftruthfulness throughout this case” by Kossman asevidenced by the fact that Kossman had lied onhis employment application and at a depositionwhen asked about previous felony convictions.Metra also points to the surveillance videostaken of Kossman while he was at the beach whichdemonstrate, according to Metra, that Kossman didnot suffer any severe injuries. The problem with Metra’s arguments is that thejury had all this information before it and choseto credit the testimony of Kossman and the factthat he had already undergone two arthroscopicsurgeries on his shoulder as a result of theinjury he suffered during the course of hisemployment with Metra and was preparing to havea third. And as we have long held, [w]e will not second-guess a jury on credibilityissues. While this court’s review is confined tothe “cold pages” of an appellate transcript, thejury had an opportunity to observe the verbal andnon-verbal behavior of the witnesses, includingthe subject’s reactions and responses to theinterrogatories, their facial expressions,attitudes, tone of voice, eye contact, postureand body movements . . . . [I]t is not the taskof this appellate court to reconsider theevidence or assess the credibility of thewitnesses. Hasham v. California State Bd. of Equalization,200 F.3d 1035, 1047 (7th Cir. 2000) (citingUnited States v. Hickok, 77 F.3d 992, 1006 (7thCir. 1996)). The simple fact is that the jury had everyopportunity to review, observe, and digest thevideo that Metra offered into evidence showingKossman engaging in activity which allegedly wasinconsistent with his claimed injury. Metra alsointroduced into evidence the fact that Kossmanhad lied on his employment application and at adeposition when asked about previous felonyconvictions. Despite all this, the jury stillchose to credit Kossman’s testimony, and we areof the opinion that Kossman’s testimony andevidence was not so lacking as to prohibit thejury from relying on his testimony, and wetherefore decline Metra’s invitation to revisitcredibility determinations made by the jury. Noris the award of $100,000 for loss of futureincome so outrageous as to be excessive. We areconvinced that Metra is not entitled to a newtrial based on Kossman’s testimony beinginsufficient to support the jury’s award ofdamages. Metra also claims that the judge erred inadmitting the testimony of Kossman’s “vocationaleconomist,” Stanley Hunton, because he waswithout the necessary “education, training, orexperience which would allow him to testify as tothe plaintiff’s economic loss or the presentvalue required to replicate the plaintiff’sclaimed economic loss.” However, Metra’s argumentaddressing this issue is inadequate to preservethe issue for review because, in an argument thatspans less than one page in length and containsonly one case citation, Metra merely makes ageneral statement that Hunton was unqualified totestify, but does not articulate what standardthe trial judge should have used or what contraryevidence it put forth as to the plaintiff’s lossof future earnings. See Tyler v. Runyon, 70 F.3d458, 466 (7th Cir. 1995) (“This court has no dutyto research and construct legal argumentsavailable to a party.”); Ehrhart v. Secretary ofHealth and Human Serv., 969 F.2d 534, 537 n. 5(7th Cir. 1992) (“[C]ompelling the court to takeup a burdensome and fruitless scavenger hunt forarguments is a drain on its time andresources.”). Metra’s bare accusation that theaward was too high is not enough to call intoquestion the judge’s decision to allow Hunton totestify. Furthermore, Metra merely makesreference to arguments made in its motion inlimine to the district court, a practice that isdisfavored. See generally Fed. R. App. P.28(a)(6). Because Metra failed to adequatelyaddress the issue of Hunton’s ability to testifyat trial in its brief, we hold that Metra haswaived this issue. Consequently, we do notconsider this issue any further. C. Worker’s Compensation Metra’s final argument on appeal is that thedistrict court erred in informing the jury thatKossman was ineligible for worker’s compensation.When the subject of Kossman’s ineligibility cameup before trial, the court informed the partiesthat it planned on telling the jury that “you maywonder why Kossman is suing Metra for an injurythat is normally covered by workmen’scompensation. Well, in most cases railroademployees are not covered by workmen’scompensation and must file a suit under [FELA] inorder to be compensated.” It is important topoint out that before the magistrate judgeinformed the jury of the unavailability ofworker’s compensation, he specifically asked therespective counsel for Metra and for Kossman ifsuch language was acceptable, and both responded,”[t]hat’s fine.” Given that counsel for Metra not only failed toobject to this approach by the district court,but affirmatively supported the judge informingthe jury that Kossman was ineligible for worker’scompensation benefits, we are of the opinion thatMetra has waived this issue on appeal. See, e.g.,United States v. Durman, 30 F.3d 803, 810 (7thCir. 1994). Consequently, the decision of the district courtis AFFIRMED. :::FOOTNOTES::: FN1 The jury’s general verdict stated that Metrashould pay $50,000 for disability, $0 fordisfigurement, $50,000 for pain and suffering,$104,000 for loss of past earnings, and $100,000for present value of future lost earnings. FN2 By agreement of the parties, the case wasassigned to Magistrate Judge Arlander Keys. FN3 As an “extra clerk,” Kossman performed a varietyof jobs, including assisting passengers throughthe gates and with train information, ticketcollection, maintenance, snow clearing, spreadingsalt, delivering packages, janitorial services,and occasionally unloading trucks. FN4 The hydraulic gate at the back of the truck waslowered toward the loading dock but the hydraulicgate did not fit flush with the floor of theloading dock. As Kossman’s supervisor, JamesSimpson, testified, the gap was “a couple ofinches at least.” FN5 We note that Metra introduced a series ofsurveillance videos of Kossman taken on the beachin 1996 after he was supposedly completelydisabled from work and suffering somedisfigurement in his shoulder. The videos,according to Metra, portray the plaintiff walkingon the beach without a shirt and Kossman seems tobe engaging in “normal recreational activities,”unrestricted use of his left shoulder, and noevidence of Kossman’s alleged disfigurement ofthe shoulder (one side being lower than theother) is displayed. FN6 Simpson admitted that, “I know they had to pullit pretty fast. . . . Two men had to push, andthe other had to pull. It had to be a coordinatedeffort.”
Kossman v. Northeast Illinois Regional Commuter Railroad Corp. In the United States Court of Appeals For the Seventh Circuit No. 99-2255 BRIAN A. KOSSMAN, Plaintiff-Appellee, v. NORTHEAST ILLINOIS REGIONAL COMMUTER RAILROADCORPORATION, doing business as Metra/MetropolitanRail, Defendant-Appellant. Appeal from the United States District Courtfor the Northern District of Illinois, Eastern Division.No. 96 C 8045–Arlander Keys, Magistrate Judge. Argued January 12, 2000–Decided May 2, 2000 Before POSNER, Chief Judge, COFFEY and RIPPLE,Circuit Judges.
 
Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.

More From ALM

Premium Subscription

With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
View Now

Team Accounts

Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
View Now

Bundle Subscriptions

Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
View Now

The Asia Legal Awards (ASLA) 2022

June 29, 2022
Hong Kong

Where the region's top lawyers, law firms and in-house teams will gather to celebrate their most stellar achievements of the year.


Learn More

Pennsylvania Legal Awards 2022 (PALA)

June 29, 2022
PA

The Legal Intelligencer honors lawyers leaving a mark on the legal community in Pennsylvania with their dedication to law.


Learn More

Elite Trial Lawyers 2022 (ETL)

July 14, 2022
New York, NY

The National Law Journal Elite Trial Lawyers recognizes U.S.-based law firms performing exemplary work on behalf of plaintiffs.


Learn More

Commercial Finance Associate (Flexible location)


Duane Morris LLP seeks two commercial finance associates to join its strong and growing 190+ lawyer Corporate Practice Group. The ideal cand...


Apply Now ›

Commercial Litigation Associate


Duane Morris LLP has an opening in its San Francisco office for a commercial litigation associate to join its team. The ideal candidate wil...


Apply Now ›

Associate Attorney


Long Island Law Firm with offices in Hauppauge and Garden City seeking associate with 2-5 years experience concentrating in the areas of ma...


Apply Now ›

MCCORMICK & PRIORE, P.C.

06/23/2022
TLI Web

IN MEMORIUM: With a profound sense of sadness, McCormick & Priore announces that Harry A Short, Jr., a preeminent products liability defense lawyer in Philadelphia with a career that spanned over sixty-five (65) years, passed away on June 14, 2022.


View Announcement ›

STARR GERN DAVISON & RUBIN

06/20/2022
NJLJ Web

Starr Gern Davison & Rubin, PC. Attorneys at Law are pleased to announce that SHELLEY L. STANGLER, ESQ. has joined the firm as of Counsel.


View Announcement ›