Geoffrey Crowther v. CONSOLIDATED RAIL CORPORATION and CSX TRANSPORTATION, INC.

United States Court of Appeals
For the First Circuit
No. 11-1578
GEOFFREY CROWTHER,
Plaintiff, Appellant,
v.
CONSOLIDATED RAIL CORPORATION and CSX TRANSPORTATION, INC.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael Ponsor, U.S. District Judge]
Before
Selya, Circuit Judge,
Souter, Associate Justice,*
and Lipez, Circuit Judge.
Thomas J. Joyce, III for appellant.
Andrew E. Tauber, with whom Paul W. Hughes, Mayer Brown LLP,
Michael B. Flynn, Heather M. Gamache, and Flyyn & Wirkus, PC were
on brief, for appellees.
May 18, 2012
* The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.

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SOUTER, Associate Justice. This is an appeal brought in
consolidated negligence actions under the Federal Employers’
Liability Act (FELA), 45 U.S.C. § 51 et seq., against the two
railroad defendants by a former employee, Geoffrey Crowther, who
held various laboring and supervisory positions over the course of
30 years. The claims in issue before us are for causing
cumulative, or wear-out, injuries to the neck, knees, left elbow
and thumb, and for accidental injury to the left forearm while
driving a spike in 2005.
Crowther first filed separate actions for the cumulative
injuries and for the accidental damage in the Pennsylvania County
Court of Common Pleas on September 21, 2007, each of which was
dismissed without prejudice and subject to an understanding, not
disputed here, that any challenge to the timeliness of the claims,
if renewed elsewhere, would be governed by the Pennsylvania entry
date. Crowther filed a federal complaint in the district of
Massachusetts for the wear-out injuries on March 5, 2009, together
with separate claims for aggravation of physical conditions, not
previously raised. Later in the same year, he filed a federal
complaint for the accidental injury to the forearm. The district
court granted defendants’ motion for judgment as a matter of law as
to most of Crowther’s claims; those remaining were tried to
defendants’ verdicts.
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In this appeal, Crowther assigns error to granting the
defendants judgment as a matter of law (rejecting the neck and knee
claims as untimely and the remaining claims insofar as they rested
on alleged failures to perform ergonomic analyses of Crowther’s
activities or provide adequate tools), and to admitting evidence
that Crowther was receiving disability benefits under the Railroad
Retirement Act, 45 U.S.C. § 201 et seq. We review the grants of
judgment as a matter of law de novo, Cruz-Vargas v. R.J. Reynolds
Tobacco Co., 348 F.3d 271, 275 (1st Cir. 2003), and the admission
of collateral source evidence for abuse of discretion, McGrath v.
Consol. Rail Corp., 136 F.3d 838, 841 (1st Cir. 1998). We affirm
on all issues.
The federal statute requires that FELA claims be brought
within three years, 45 U.S.C. § 56, a period running from the date
that a plaintiff knows or has reasonable grounds to know of an
injury as caused by employment, Granfield v. CSX Transp., Inc., 597
F.3d 474, 482 (1st Cir. 2010). Thus, in order to fall within the
period for which suit is allowable, the wear-out injuries must have
become identifiable as work-related on September 21, 2004, or
later, and the aggravation injuries on or after March 5, 2006.
Crowther does not now contest the court’s conclusion that the
aggravation claims were untimely, appealing only the judgment at
the close of the plaintiff’s case of the action for neck and knee
wear-out, which was based on findings by the court under Federal
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Rule of Civil Procedure 50(a) that the evidence could not support
a reasonable jury finding that Crowther sued while the three-year
window was open.
As for the knees, the evidence included a 2007 medical
questionnaire on which Crowther reported pain in the knees
attributable to a fall at work in 1977; a separate physician’s
note, also from 2007, that Crowther had reported that his knees
became painful in 2002 “probably due to overuse at work”; 1 and a
1998 medical history form that recorded Crowther’s claim of a “work
injury” of a “bothersome” knee and back owing to a fall twenty
years before. As against this evidence of injury and pain
understood as related to his work, we have been directed to nothing
but general testimony that Crowther had recovered from a past right
knee injury and his knee pain was not continuous from 1992 to the
time of trial. Just as significantly, Crowther directs us to no
evidence to the effect that at some point within the limitations
period he first had reason to associate knee pain with his railroad
employment.
On the evidence, then, no fact-finder could reasonably
have inferred that Crowther became aware of a work connection with
his knee pain only after mid-September of 2004. Although Crowther
1 It is undisputed that a 1986 x-ray of the right knee carried
a doctor’s note that Crowther had said he had injured the knee at
work the previous day. But we have not found the note in any
appendix to the briefs, or discovered any other access to it.
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stresses at length that the cases construing a FELA plaintiff’s
right to get his case before a jury require not much more than a
scintilla of evidence in plaintiff’s favor on a disputed point, see
e.g., Aparicio v. Norfolk & Western Ry. Co., 84 F.3d 803, 809-10
(6th Cir. 1996), abrogated in part on other grounds by Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000), nothing but
sympathy could obscure the apparent untimeliness of the knee claim
here, and the Rule 50(a) judgment was undoubtedly correct.
The same is true as to the claim of neck injury. A
physician’s note from 2002 described Crowther as a railroad worker
doing heavy work as a welder, complaining of right shoulder and arm
pain and neck pain. Crowther testified, in a deposition, read into
the record in his cross-examination, that the doctor “said whatever
you’re doing right now . . . . I would get away from it. Find
something like a management job or something. . . . Dr. Bausten
said, I recommend that you just, you know, whatever, you’re
welding, get away from it. So that’s what I did.” While Crowther
took the position at trial that he did not perceive a work relation
until later, we have been directed to only one direct comment on
the prior deposition testimony, a reference to seeking the 2002
medical attention for carpal tunnel syndrome, and a vague statement
responding to his lawyer’s question about when he knew of work
relation: “the whole thing with my [left] thumb, my [left] elbow
and my neck was 2005.” The trial judge was not exaggerating when
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he remarked that he failed to see how counsel could argue with a
straight face that Crowther did not know of his neck problem in
2002 and understand its possible relation to his work.
We likewise see no error in entering judgment as a matter
of law on the negligence claims based on inadequate tools and
failure to obtain ergonomic studies of the activities required to
perform Crowther’s various jobs. The only evidence that proper
tools were lacking related to 2005, the year of the accidental
forearm injury. As to that specific injury, the theory was
submitted to the jury (and rejected), but was properly barred with
respect to the wear-out injury claims for cumulative effects of
continually negligent conduct: there simply was no evidence of a
persisting failure to provide adequate equipment over time.
Unlike the tools claim, the claimed failure to conduct
ergonomic studies of Crowther’s job activities was raised only as
a cause of the cumulative, wear-out injuries (and only against
Consolidated Rail Corporation). While there is no question that
Consolidated commissioned no such studies, this claim was rejected,
quite properly, for the failure of Crowther’s expert, or any other
witness, to show how such studies would reasonably have made a
difference in the way the railroad treated Crowther. His counsel
has not called our attention to any evidence that job assignments
or instructions for performing assigned work might have changed in
light of any understanding that ergonomic studies would have
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fostered. There is thus no indication of any basis for a jury to
conclude that inattention to ergonomics caused any harm to
Crowther.
Crowther’s final assignment of error goes to the
admission of evidence of malingering, which was relevant to his
claim of loss from continuing disability attributable to the
negligence of the railroads in causing chronic or wear-out injury
to his left elbow and thumb, and to the negligence of CSX alone in
causing the accidental injury to his left forearm while working on
track in New Bedford. The two ensuing verdicts were special, not
general, being findings of no negligence with respect to either
wear-out or accident. Crowther argues that each should be set
aside because the court granted a pretrial motion to allow the
defendants to introduce evidence that Crowther was getting around
$3,000 per month in disability benefits under the Railroad
Retirement Act. The court thus refused to apply the rule against
admitting evidence of a defendant’s receipt of compensation for
injury from a source collateral to the defendant. More
specifically, Crowther says that admitting the evidence violated
the holding in Eichel v. New York Cent. R.R. Co., 375 U.S. 253
(1963) (per curiam), which he reads as flatly precluding admission
of collateral source evidence in trials of FELA claims like this
one. We think, however, that under this circuit’s holding in
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McGrath, 136 F.3d 838, there was no error in allowing the jury to
consider this evidence.
The collateral source rule is meant to guard against two
risks: that after a jury has found liability and goes on to assess
damages it will deduct from the appropriate award whatever
compensation a plaintiff is receiving for injuries from a source
other than a liable defendant (health insurance benefits, say), and
the more general risk that a jury will regard the receipt of such
benefits as a reason to avoid finding liability at all in a close
case. See id. at 840. Eichel was a FELA case in which the rule
was applied and explained in a per curiam opinion, prior to the
adoption of the Federal Rules of Evidence. There was no question
in that case that receipt of continuing benefits from a collateral
source could be relevant, in showing both that the defendant was
malingering in order to claim greater harm than he actually
suffered and that he was failing to take the required steps to
mitigate damages. But the Court reasoned that admission of such
evidence raised a substantial likelihood of prejudicial impact,
whereas in most cases there would be other evidence of any
malingering, thus eliminating the justification for raising
collateral source risks. The Court concluded by upholding a trial
judge’s exclusion of collateral source evidence. Eichel, 375 U.S.
at 255.
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While Eichel is generally regarded as laying down an
unqualified rule against revealing a collateral source in a FELA
case, see, e.g., Green v. Denver & Rio Grande Western R.R. Co., 59
F.3d 1029 (10th Cir. 1995); Wilcox v. Clinchfield R.R. Co., 747
F.2d 1059 (6th Cir. 1984), this circuit has read the per curiam
opinion less globally as simply affirming the trial judge’s
discretionary judgment to exclude in that case (consistently with
the current Federal Rule of Evidence 403, leaving a trial court
with discretion to exclude otherwise relevant evidence if its
probative value is substantially outweighed by the danger of unfair
prejudice), McGrath, 136 F.3d at 841. Since we are bound by this
panel decision in the absence of intervening and binding authority,
we will apply McGrath and review for abuse of discretion, id. at
841, with deference being given to the trial court’s weighting of
the relative probative and prejudicial tendencies, Fitzgerald v.
Expressway Sewerage Constr., Inc., 177 F.3d 71, 75 (1st Cir. 1999).
One of the prejudicial dangers posed by collateral source
evidence may be put aside at the outset, the risk that a jury will
offset actual damages by the amount of the benefits being paid. As
mentioned, the verdicts were special findings of no negligence,
eliminating any consideration of damages that could have been
affected by the disputed evidence. The point would be the same,
however, even if the verdict had been general. Although the judge
took great pains to instruct the jury prior to Crowther’s cross-
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examination that he was entitled to the benefits he was receiving,
and that they could not be subtracted from any award of damages the
jury might otherwise make, Crowther turned around and asked the
jurors to make the very offset the court’s instructions had
forbidden. As his counsel told the judge, he may well have taken
this position to minimize the danger that the benefits evidence
would distort the jurors’ judgment on the issue of railroad
negligence, but the fact remains that Crowther gave up the benefit
of careful instructions against offset.
His claim of error subject to McGrath consequently boils
down to whether letting in the evidence of benefits raised such an
unjustifiable risk of swaying the jury’s judgment on the issue of
negligence itself as to amount to abuse of discretion even under a
deferential standard. There is evidence pointing each way. As the
Supreme Court surmised generally in Eichel, 375 U.S. at 255,
malingering was an issue here quite independently of collateral
source evidence. The jury learned that Crowther declined to avail
himself of the retraining CSX provided for injured employees and
his decision could not be interpreted as an act of hopeless
resignation; the evidence showed that he customarily took a daily
four-mile walk, went swimming five days a week and cycling three
days, could lift a kayak, and go fishing and snowshoeing. This
demonstration of reluctance to return to gainful work, combined
with the showing of physical activity, certainly shot holes through
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the disability claim and if considered in isolation would be a good
reason to conclude that it was reversible error to admit cumulative
collateral source evidence.
In the other direction, that threat was mitigated by the
court’s instructions. The court pointed out that “[a]n injured
party is under a legal obligation to mitigate his damages; that is,
to minimize the economic loss resulting from his injury by
accepting and resuming gainful employment as soon as he reasonably
can.” The explanation was clear that the evidence of benefits was
allowed in only as it might indicate whether Crowther had fulfilled
his “obligation, if he’s asking for compensation or damages to
replace lost wages, to engage in whatever work he is capable of
engaging in.” And the court reminded the jurors that “the
defendants bear the burden of proving a failure to mitigate on the
part of plaintiff by a preponderance of the evidence.”
But the more powerful reason showing that the
discretionary ruling in favor of apprising the jury of the
collateral benefits was ultimately reasonable is simply that
Crowther’s own testimony elevated the benefits evidence from merely
circumstantial to a component of direct evidence of purposeful
malingering. At a pretrial deposition, Crowther’s counsel made it
clear that the reason his client was not working was “because he is
on a disability annuity . . . . That’s why he is not working
okay.” At trial, prior to Crowther’s testimony, counsel made the
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same point, telling the judge that if Crowther worked he would lose
his disability income. But it was during redirect examination by
his own counsel that Crowther candidly confirmed what his counsel
had earlier represented.
Counsel: Is it your understanding that if you were
working, that you would lose your disability from the
Railroad Retirement Board?
Crowther: Yes.
Counsel: And that’s the reason you’re not
working.
Crowther: Yes.
This testimony is an admission of malingering, the most convincing
possible evidence on this point, so powerful that its probative
value, in light of the limiting instruction, could not have been
substantially outweighed by the danger of any prejudice that could
be called unfair.
We assume, of course, that Crowther would have seen no
occasion to make such an admission if the court had not ruled the
collateral source evidence admissible in the first instance, but it
was his own (or his lawyer’s own) choice to incorporate the fact
revealed by that evidence into an avowal of the intentional
malingering that the railroads sought to show. Thus, however we
might analyze the merits of the pretrial ruling based on the
information then before the judge, the evidence at trial
demonstrated beyond serious question that the disclosure of
collateral benefits did not place him under any disadvantage that
the facts did not fully warrant.
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Affirmed.
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