OF JUDGMENT: 01/19/2018
COUNTY CIRCUIT COURT, HON. JANNIE M. LEWIS-BLACKMON TRIAL
ATTORNEYS FOR APPELLANT: M. QUENTIN EMICK JR. C. E. SOREY II
ATTORNEYS FOR APPELLEE: GLENN F. BECKHAM HARRIS FREDERICK
BARNES, C.J., McDONALD AND C. WILSON, JJ.
This is an appeal regarding a claim that Arthur Young, an
injured railroad employee, brought against Illinois Central
Railroad Company (Illinois Central) pursuant to the Federal
Employer's Liability Act (FELA), 45 U.S.C. § 51 et
seq. (2018). During trial, Illinois Central challenged the
testimony of two of Young's experts. The circuit court
granted said motion. Thereafter, a Holmes County jury found
Illinois Central liable for the total amount of $1, 300, 000.
Illinois Central challenged the verdict in several post-trial
motions. It filed a motion for judgment notwithstanding the
verdict (JNOV) on the jury's award of $1, 000, 000 for
future damages and $100, 000 for partial and total
disability. Illinois Central also filed three motions for a
new trial, claiming (1) that the jury's additional
verdict of $100, 000 for past and present physical pain and
suffering and $100, 000 for past and present emotional
suffering was against the overwhelming weight of the
evidence; (2) that the court erred in its rulings during the
jury-selection process; and (3) that the court erred in the
jury instructions given. The circuit court denied Illinois
Central's post-trial motions except for the JNOV motion
regarding the jury's verdict of $1, 000, 000 in future
lost wages which the court granted. Young appealed the
circuit court's judgment regarding the court's
exclusion of two of his expert witnesses and the future lost
wages. Finding no error, we affirm.
AND PROCEDURAL HISTORY
Young, a high school graduate with one year of college
education, was hired to work for Illinois Central as a
trackman in 2007. On January 11, 2008, Young was working for
Illinois Central in Memphis, Tennessee. In the course of his
duties, Young was riding as a passenger in a Kubota tractor
driven by his coworker, Jerry Brooks Jr., when a dump truck
operated by Illinois Central's employee Michael Paul
Wallace backed into the Kubota. The collision caused the
Kubota to roll over. Young reported the incident to his
foreman, to his supervisor, and to the assistant chief. Young
contends that although he asked to go to the hospital, he did
not go because his foreman, his supervisor, and the assistant
chief did not want an accident report to be filed. Young
wrote a statement in which he said that he only injured his
elbow. But Young later contended that he felt pain in his
elbow, head, neck, and back immediately after the accident.
Young was sent home for the rest of the weekend, but he did
not seek immediate medical attention.
The medical testimony showed that Young was treated by his
local physician, Dr. Downer, for flu-like symptoms and/or his
bronchitis on February 26, 2008; March 3, 2008; March 20,
2008; June 9, 2008; September 18, 2008; October 6, 2008; and
October 14, 2008. But he never mentioned having any injuries
as a result of the accident at any appointment.
In August 2008, Young wrote a letter to Illinois Central
indicating that he was having mental and emotional issues as
a result of the accident. Illinois Central granted him a
medical leave of absence from August 4, 2008, to October 20,
2008. During Young's leave of absence, he sought
psychological assistance for his nightmares from Life
Between October 20, 2008, and August 5, 2016, Young received
sporadic orthopaedic medical care from Dr. Ronald Childress.
Young's initial visit to Dr. Childress was the first time
that Young complained of his alleged back injuries as a
result of the accident. Throughout this time, Young continued
to work for Illinois Central, and he was promoted to the
position of a production-support foreman.
On May 27, 2010, Arthur Young filed a complaint pursuant to
FELA against Illinois Central in the Holmes County Circuit
Court. Young sought to recover for the injuries and related
damages he suffered during the January 2008 job-related
accident. Illinois Central answered and denied that Young
suffered any injuries.
In a pre-trial order filed on August 22, 2017, Young
designated three experts to testify at trial-Dr. Ronald G.
Childress, his treating orthopedic physician; Dr. Frank
Giles, a vocational expert; and Dr. Larry Lynch, an
economist. In the pre-trial order, Illinois Central also
admitted that the January 11, 2008 accident was due to the
failure to use reasonable care by one of its employees, other
than Young. But Illinois Central did not admit that Young
suffered the injuries he claimed. Therefore, the sole issue
at trial became damages.
The case proceeded to trial on October 2, 2017. During trial,
Young testified that he was hired as a track laborer but that
his current position was to work as a production-support
foreman. He stated that his current job entailed much of the
same hard labor. He stated that after the accident he felt
pain in his head, neck, back, and elbow, but he did not go to
the hospital immediately after the accident allegedly because
Illinois Central did not want an accident report to be filed.
He stated that although he continued to go to work, he also
continued to have pain. Further, Young testified that he did
not feel that he could work much longer because it was
getting hard for him to do anything.
Dr. Childress, Young's treating orthopaedic physician,
also testified at trial. Dr. Childress testified that he
first saw Young on October 20, 2008, and that Young
complained of back injuries as a result of the accident. At
Young's initial visit, Dr. Childress's impressions
were that Young had an acute lumbar spine strain with
tendency for some numbness and tingling in his feet. He also
testified that Young had a tension headache coming from an
acute cervical spine strain. Dr. Childress recommended an MRI
scan and EMG nerve-conduction study; he also prescribed Young
Daypro Darvocet medication. Young was told to follow up
within two months or after the tests were completed. The MRI
scan was performed on March 10, 2009. The MRI scan documented
a small left-lateral C3-C4 disc bulge versus a mild bony
hypertrophic spurring at the left C3/4 uncovertebral joint,
but there was no evidence of spinal or neuroforaminal
stenosis. There was a mild desiccation and disc degeneration
at C2/3 and C3/4. Young did not follow up to get these
results until July 12, 2011, more than two years later.
On that visit, Dr. Childress advised Young of the MRI-scan
findings. Dr. Childress also testified that Young informed
him that he "was having difficulty with the prescribed
medication"; therefore, Dr. Childress advised Young to
start taking over-the-counter pain medication. Although Dr.
Childress advised Young to follow up with him within two
months, Young's next visit was on February 21, 2014.
During that visit, Dr. Childress observed "fair mobility
of his cervical spine with rotation of thirty degrees lateral
bending, of five degrees." "He had some tenderness
in his upper back and his lumbar spine to palpation."
Therefore, Dr. Childress encouraged Young to do stretches and
light exercises. Young's next saw Dr. Childress on May
30, 2014. During that visit, Dr. Childress noted that Young
was restricted in his mobility. Young reported to Dr.
Childress that he was functioning but that he was struggling
to function. Dr. Childress encouraged Young to do heat
treatments with hot towels and hot tub soaks. Dr. Childress
also recommended that Young see him within three months, but
Young did not return until August 14, 2015. During that
visit, Dr. Childress advised Young to take over-the-counter
medicine for his pain but to refrain from heavy activities if
the pain did not subside. Young's last visit with Dr.
Childress was on August 5, 2016. Dr. Childress concluded that
Young suffered trauma from the January 2008 accident and that
he had both an acute and a chronic cervical and lumber spine
strain with cervical and lumbar disc pathology associated
with his strain. Dr. Childress advised Young that if he had
increasing problems and difficulty to the extent that he did
not feel safe working that he should request time off or
consider other options for intervention.
On direct examination, Young's counsel asked Dr.
Childress about Young's ability to continue with his
Q: Do you have an opinion based upon a reasonable degree of
medical probability of Mr. Young's ability to continue
with this particular profession?
A: I don't think it's in his best interest or the
company's best interest to have him do so because he has
[an] underlying structural problem. The fear is that he could
further damage those areas that already have abnormality. He
could make the disc rupture bigger to the extent he has to
have a surgery. So that in my mind it would be better for him
to do a job that does not require the severe straining,
lifting, walking on uneven surfaces, et cetera, in an effort
to avoid a problem that forces him to have a procedure done.
But on cross examination, Dr. Childress testified:
Q: I'm wrapping [up] here, Dr. Childress. You testified
on direct examination that you would not recommend Mr. Young
continue the very heavy work he's doing now, vibrating
tools, uneven surface, working on uneven surfaces. But you
also testified in ...