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April 12, 1982

Gerald W. BYRNE, Plaintiff,
BUFFALO CREEK RAILROAD COMPANY and John J. Hayes, as Chairman of Local 12, a Local Unit of United Transportation Union, Defendants

The opinion of the court was delivered by: ELFVIN


The Complaint in this case states two causes of action. The first is against defendant Buffalo Creek Railroad Company ("Buffalo Creek") for its alleged wrongful refusal to reinstate plaintiff in his employment following a medical leave of absence. The second is against defendant John J. Hayes in his official capacity as Chairman of Local 12, a local unit of the United Transportation Union ("UTU"), for alleged failure adequately to represent plaintiff when he attempted to gain such reinstatement. This court has jurisdiction over both causes of action under the decisions in Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957), and Glover v. St. Louis-S.F.R. Co., 393 U.S. 324, 89 S. Ct. 548, 21 L. Ed. 2d 519 (1969).

 After a non-jury trial and submission by the parties of proposed findings of fact and conclusions of law and replies thereto, I ordered that additional briefing and argument by counsel be had on the issues (1) whether plaintiff is estopped from claiming present ability to perform the duties of a locomotive engineer by reason of his 1977 application for and subsequent receipt of Social Security and Veterans Administration non-service disability benefits pursuant to 42 U.S.C. § 423 and 38 U.S.C. § 521, applying the doctrine of "judicial estoppel" discussed generally in 1B Moore's Federal Practice P 0.405(8), and (2) whether, assuming arguendo that plaintiff has proven the liability of defendants herein, an appropriate remedy would include the submission of plaintiff to examination by a neutral physician to be selected by the parties or by the court.

 Having carefully considered the first matter on which I directed further argumentation, I have concluded that it would be inappropriate at this time, after the trial of this case, to afford defendants the advantage of the affirmative defense of estoppel, which was not pleaded as such in their answers as required by Fed.R.Civ.P. rule 8(c) or at any time argued by defendants prior to my Order directing such argument. No evidence has been presented regarding plaintiff's application for and receipt of these benefits, save plaintiff's oral admissions of these matters upon direct and cross-examination at trial (Tr. 130, 131, 192-194).

 While late amendment to add an affirmative defense may be granted "when there is no prejudice and fairness dictates," (Jakobsen v. Massachusetts Port Authority, 520 F.2d 810, 813 (1st Cir. 1975)), the stricture of Fed.R.Civ.P. rule 15(a) that leave to replead should be "freely given when justice so requires" must be taken to mean justice to both parties (Pollux Marine Agencies v. Louis Dreyfus Corp., 455 F. Supp. 211, 215 (S.D.N.Y.1978)). Addition after trial of an affirmative defense which if meritorious would be largely dispositive of a plaintiff's claim and would provide appropriate grounds for summary judgment would be unfair to the plaintiff, because he needlessly would have proceeded to the expense and personal burden of trial. In this case the injustice to plaintiff would be even greater because it was plaintiff's unsuspecting attorney, on direct examination, who first brought to light the facts of plaintiff's application for disability benefits. Although plaintiff's apparent taking of inconsistent positions regarding his ability to work can hardly be condoned, fairness in the conduct of judicial proceedings militates against permitting amendment to plead such conduct as an affirmative defense under such circumstances.

 I am guided to this conclusion also by my perception that the United States Court of Appeals for the Second Circuit disfavors the extension of estoppel principles to positions previously taken before administrative agencies unless the elements of collateral estoppel are otherwise satisfied (see Roth v. McAllister Bros., Inc., 316 F.2d 143, 145 (2d Cir. 1963); Stella v. Graham-Paige Motors Corporation, 259 F.2d 476, 482 (2d Cir. 1958). Cf. Gleason v. United States, 458 F.2d 171, 175-176 (3d Cir. 1972)), which is inapropos of the case here.

 Buffalo Creek's motion to amend its Answer by adding the affirmative defense of judicial estoppel is accordingly hereby ORDERED denied.

 Findings of Fact and Conclusions of Law

 Byrne began working for Buffalo Creek in 1961 as a fireman-engineer and after four years had advanced to the position of engineer. In February 1969 he entered the hospital for an appendectomy and while there experienced a massive hemorrhage, requiring performance of a total colectomy and a permanent ileostomy. By the latter procedure a permanent opening was made in plaintiff's side for the evacuation of his bowels into a sac fitted to this aperture and worn at all times.

 After a recuperation period of several months, plaintiff's personal physicians, Dr. J.B. (who had performed plaintiff's surgery) and Dr. W.B., examined plaintiff and determined that he was fit to return to his employment. Plaintiff had received assurances from Trainmaster Terrance Farrell, Buffalo Creek's employing officer, and from Joseph Downey, defendant Hayes's predecessor as UTU's general chairman, that he would be returned to his job after recuperating. After being assured by his doctors that he was prepared to return to work, plaintiff visited Farrell who arranged for his examination by Buffalo Creek's local physician, Dr. S.M.

 This doctor assured plaintiff that there was no physical obstacle to his return to work, but informed him that the decision that he was qualified to do so must be made by Dr. W.M., Buffalo Creek's Chief Surgeon, to whose office in Cleveland Dr. S.M. would report his medical findings. After seeing Dr. S.M. plaintiff spoke to Downey asking for assistance in returning to work as soon as possible, and was told that nothing could be done before the Chief Surgeon had acted upon Dr. S.M.'s report. Plaintiff also wrote to Railroad Superintendent C.M. Johnke July 1, 1969 seeking an appointment for the purpose of discussing his return to work. (Plaintiff's Exhibit 1).

 In his report to the Chief Surgeon (Defendant's Exhibit 5), Dr. S.M. indicated the surgical procedures plaintiff had undergone, that plaintiff had four to five bowel movements daily and that plaintiff had regained the fifty pounds he had lost through his illness and subsequent operations. He remarked that, due to the number of daily bowel movements, perhaps he should be placed in some capacity other than that of an engineer. Said report was received by the Chief Surgeon July 7, 1969. On July 22, 1969 the Chief Surgeon wrote to Johnke informing him that plaintiff "is disqualified for all service." (Plaintiff's Exhibit 2.) Upon learning of this communication in early August through his inquiries at Buffalo Creek's office, plaintiff contacted Downey who promised to investigate the matter for plaintiff. On August 9, 1969, in a letter (Plaintiff's Exhibit 3) that Downey admitted he "may have received" (Downey deposition 20), plaintiff wrote "I protest this action (his disqualification) and submit a grievance to you, Chairman Downey, Lodge 12, U.T.U., to initiate steps or procedures under Art. 27 of our Union Agreement which provides for an examination by (Chief Surgeon W.M.) of Cleveland and/or a neutral physician chosen by my physician and the Chief Surgeon (W.M.)." *fn1" Plaintiff also reminded Downey that his doctor had approved him for any type of work and plaintiff asked to be informed if he could be of any assistance in Downey's efforts on his behalf. On August 10, 1969, by a letter (Plaintiff's Exhibit 4) which Downey testified that he believed he had read (Downey deposition 23), plaintiff's wife expressed her inability to comprehend Downey's refusal to represent plaintiff in his effort to gain reinstatement, described her family's destitute circumstances and begged Downey either to utilize the proper procedures himself for plaintiff or to refer plaintiff to someone in the union with the capacity to process his grievance.

 Plaintiff made numerous other contacts with Downey regarding the progress of his claim for reinstatement and Downey spoke informally to various railroad officials other than the Chief Surgeon.

 On September 18, 1969 plaintiff's doctor, Dr. J.B., wrote to the Chief Surgeon expressing his belief that plaintiff was fully able to return to his former work and requesting the Chief Surgeon's views on the subject. (Plaintiff's Exhibit 7.) On October 29, 1969 the Chief Surgeon replied to Dr. J.B. to the effect that a permanent ileostomy "is considered disqualifying in train and engine service," which "is an accepted standard by the Railroad Retirement Board also." (Plaintiff's Exhibit 9.)

 On September 5, 1969 plaintiff's attorney had advised Buffalo Creek that plaintiff contested the Chief Surgeon's disqualification of plaintiff and requested re-examination by the Chief Surgeon pursuant to Article 27. (Plaintiff's Exhibit 5.) On October 27, 1969 plaintiff's attorney wrote to the Chief Surgeon explaining that the railroad had not responded to his efforts to have plaintiff re-examined and requesting such re-examination. (Plaintiff's Exhibit 8.) This request was repeated by plaintiff's attorney by letter dated November 5, 1969. (Plaintiff's Exhibit 10.) In this letter, evidently in view of the contents of the Chief Surgeon's October 29th letter to plaintiff's doctor indicating the Chief Surgeon's inflexible view that an ileostomy is per se disqualifying in train service, plaintiff's attorney suggested that the consideration of plaintiff's claim might be advanced directly to the appointment of a neutral physician pursuant to Article 27.

 On November 10, 1969 the Chief Surgeon wrote to Johnke inquiring whether Johnke wished to have the Chief Surgeon examine plaintiff pursuant to plaintiff's attorney's request. (Plaintiff's Exhibit 11.) The Chief Surgeon on November 14th requested Johnke to have plaintiff report for an examination in Cleveland. (Plaintiff's Exhibit 12.) However, on November 21, 1969, the Chief Surgeon wrote to Mr. R.A. Carroll, a labor relations employee of the railroad, asking if plaintiff's examination should be cancelled in light of Johnke's remarks in a letter to the Chief Surgeon dated November 13th. Johnke's letter is quoted by the Chief Surgeon as indicating that Johnke considered that the Chief Surgeon's October 29th letter to plaintiff's doctor "entailed sufficient cause for disqualification" and that Johnke did not see any purpose in an additional examination. Johnke also is quoted as indicating that he did not desire another ...

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