The opinion of the court was delivered by: Townes, United States District Judge
This is an action brought by a locomotive engineer to recover damages for injuries sustained when the train he was operating collided with a maintenance crane. In April 2005, after a week-long trial on the issue of causation and damages, a jury returned a verdict in favor of plaintiff, but awarded him only $75,000 for past pain and suffering, $25,000 for future medical expenses, and nothing for future pain and suffering or for past or future wage losses. Plaintiff now moves for a new trial pursuant to Fed. R. Civ. P. 59, arguing (1) that the jury's verdict was against the weight of the evidence, (2) that the verdict was internally inconsistent and (3) that the Court's ruling on one of defendant's motions in limine was erroneous. For the reasons set forth below, plaintiff's motion is denied.
In September 2002, plaintiff Robert Litras, a locomotive engineer employed by defendant Long Island Railroad, brought this action pursuant to the Federal Employers' Liability Act ("FELA"), 45 U.S.C. § 51 et seq., to recover for injuries he sustained in a railroad accident on May 17, 2001.In April 2003, defendant stipulated that it would not contest liability for compensatory damages. Thereafter, the only issues remaining for trial were which, if any, of plaintiff's several injuries were caused, even in the slightest, by defendant's negligence, and the amount necessary to compensate plaintiff for said injuries.
Defendant's Second Motion in Limine
Prior to the start of the April 2005 trial in this action, the parties made several motions in limine, only one of which is relevant herein. That motion -- defendant's second motion in limine, filed and dated March 9, 2005 -- sought to preclude plaintiff from offering "evidence or testimony that the LIRR improperly refused to authorize . . . back surgery . . . or . . . a discogram of the plaintiff . . . ." Defendant's Memorandum of Law in Support of its Motion in Limine, dated Mar. 9, 2005, at 9. Defendant argued that claims concerning the authorization of medical care were "minor disputes" under the Railway Labor Act ("RLA"), 45 U.S.C. § 151 et seq., and that this Court lacked subject matter jurisdiction over such disputes. Id. at 1. In response, plaintiff stated that he was not raising a claim concerning defendant's refusal to authorize the surgery or the discogram, but was seeking "to present evidence of these facts regarding his requests for authorization of surgery, and the subsequent failure of the Defendant to either approve or deny said requests" in order to explain why plaintiff had not yet had surgery. Memorandum in Support of Plaintiff's Motion to Oppose Defendant's Motion in Limine, dated Mar. 16, 2005, at 2.
On April 4, 2005, this Court granted defendant's motion, thereby precluding plaintiff from introducing evidence that the defendant had refused to authorize the discogram and had not yet ruled on plaintiff's request for authorization to perform surgery on plaintiff's lumbar spine. Immediately thereafter, the parties proceeded to trial in this case. Because plaintiff's first two arguments upon the instant motion for a new trial are fact-specific, it is necessary to summarize the evidence adduced at trial in some detail.
On May 17, 2001, plaintiff was operating the lead unit of a multiple-unit, electrically powered train on an eastbound run to Far Rockaway Station (T. 499, 501).*fn1 As his train was approaching a crane operating on an adjacent track, the crane unexpectedly swung into the path of plaintiff's train (T. 502). Although the train was traveling at only 25 miles per hour, the impact tore a hole in the roof of the car in which plaintiff was seated. Id.
At the time of the collision, plaintiff was seated behind a console in a booth located at the very front of the train, holding down a "controller" which had to be continuously depressed to prevent the train from stopping automatically (T. 500). Plaintiff was not struck by the crane itself, but was thrown forward into a standing position (T. 502-04). His hand came off the controller, activating the emergency brakes which, together with the force of impact, brought the train to a sudden halt (T. 502).
Plaintiff testified that, even before he fell back into his chair, he felt back pain unlike any he had felt before (T. 504). However, when an ambulance arrived, plaintiff told the paramedics that he did not want a backboard. Id. Indeed, plaintiff did not need to be carried from the train, but climbed down an egress ladder and walked to an ambulance, in which he sat upright for the ten-minute ride to Franklin General Hospital (T. 505-06, 551).
There, plaintiff was examined in the emergency room. Although plaintiff recalled complaining of throbbing pain across his lower back, he was not even X-rayed (T. 506-07). Instead, he was provided with a single pill containing a muscle relaxant and a pain killer and released (T. 553).
The next morning, plaintiff had pain in his neck, which radiated "down the shoulder and into the bicep," and a "throbbing and pinching" sensation in his fingertips (T. 514). After attending a meeting with LIRR's General Superintendent of Transportation, plaintiff visited his family doctor, who prescribed Skalaxin (a prescription pain killer) and recommended that plaintiff "take off at least seven days as a precaution" (T. 511). Plaintiff took the Skalaxin for approximately two weeks, but never refilled the prescription (T. 555).
Shortly after the accident, plaintiff's union referred him to an orthopedist, Dr. Ajemian, who prescribed physical therapy (T. 515, 569). This therapy, which involved "massage, heat massage [and] ultrasound," made plaintiff's neck feel "considerably better" (T. 517-18). Nonetheless, plaintiff did not return to work until September 10, 2001 -- 115 days after the accident.
During this 115-day period, plaintiff was examined regularly by defendant's doctors. In August 2001, Dr. Ajemian told plaintiff that the railroad wanted him to return to light duty (T. 558). Plaintiff responded that he did not feel ready to do so. Dr. Ajemian did not tell plaintiff not to return to work, but said, "[T]hen, we'll deal with the railroad" (T. 559). It is not clear what Dr. Ajemian meant by this comment or what he did thereafter.
On September 5, 2001, plaintiff started seeing a new orthopedist, Dr. Jeffrey Meyer. Although plaintiff claimed that he stopped seeing Dr. Ajemian because the doctor kept him waiting for hours (T. 522), Robert Willis -- the Health and Welfare Secretary of plaintiff's union and the person who referred plaintiff to Dr. Meyer -- testified that plaintiff had "wanted a second opinion" (T. 364). Dr. Meyer admitted having "many" patients who attempted to "milk [an injury] for whatever it is worth," but opined that plaintiff was not such a patient because plaintiff "wanted to work" (T. 190-91). However, plaintiff, who was examined by Dr. Meyer's partner, Dr. Yerys, upon his initial visit to Dr. Meyer's office, testified that he "more than likely" told Dr. Yerys that he was not ready to return to work (T. 561). Plaintiff also testified that he "probably" said that he did not want to work light duty during his first meeting with Dr. Meyer (T. 562).
Following his September 5, 2001, examination of plaintiff, Dr. Yerys noted that, with physical therapy, plaintiff had made "excellent progress in the cervical spine" and had excellent range of motion in his neck (T. 230-31). Plaintiff continued to have numbness and tingling in his right hand and a limited range of motion in the lower spine, but Dr. Yerys did not tell plaintiff that he was unable to perform light duty (T. 231).
Plaintiff saw Dr. Meyer for the first time on October 9, 2001. Plaintiff principally complained of numbness in his right hand, but also complained of lower back pain (T. 174). Although plaintiff had a "palpable spasm in his back" (T. 181), Dr. Meyer determined that plaintiff could perform "light duty" (T. 190). Dr. Meyer prescribed a "back hardening" regimen of physical therapy, with a view to returning plaintiff to full duty. Id.
Plaintiff returned to Dr. Meyer's office once more on November 27, 2001, about the time he returned to work full time. By then, his cervical and lumbar strains were resolved (T. 193), and Dr. Meyer cleared plaintiff to return to full duty. After that, plaintiff did not return to Dr. Meyer's office for more than six months.
When Dr. Meyer next examined plaintiff, on June 7, 2002, plaintiff was working out at the gym three or four times a week (T. 198-99). Plaintiff was doing light weight training, using machines such as the shoulder press, and doing such cardiovascular exercises as riding the stationary bicycle (T. 566). Plaintiff reported "no significant neck pain," but had "residual midline low back pain" (T. 198, 241). The back pain was not "significantly different" than it had been in the middle of 2001 (T. 198-99, 241), so Dr. Meyer referred plaintiff to a Dr. Fryman for an epidural steroid injection. While plaintiff testified that the injection was very painful (T. 519), Dr. Meyer recalled that plaintiff reported "significant improvement" following the injection (T. 202).
By November 15, 2002, plaintiff's principal complaint was of shoulder pain which, plaintiff reported, was worse than his back pain which, in turn, was worse than his neck pain. Plaintiff claimed that his symptoms were "significantly worse," and that he had taken to using his other hand to operate the controls of the train (T. 204). While Dr. Meyer testified that it was common "to see a combination of neck and shoulder pain," he admitted that he was "uncertain" as to whether plaintiff's rotator cuff tendinitis was caused by the accident (T. 205, 271).
Dr. Meyer subsequently referred plaintiff to a surgeon, Dr. Marc Chernoff, to discuss surgical options. When Dr. Chernoff first examined plaintiff in January 2003, plaintiff's "worst problem . . . was his lower back followed by his shoulder and neck" (T. 565). Dr. Chernoff determined that plaintiff had a herniated disk between his fourth and fifth lumbar vertebrae (i.e., at L 4-5), a herniated disk between his fourth and fifth cervical vertebrae (i.e., at C 4-5), and a bulging disk at C 5-6 (T. 69). Dr. Chernoff proposed performing surgery on plaintiff's lower back, in which he would remove a portion of the herniated disk and fuse the L 4 and L 5 vertebrae.
Dr. Chernoff did not propose performing surgery on plaintiff's cervical vertebrae. Although Dr. Chernoff stated that physical therapy could not repair damage to cervical disks, he nonetheless suggested that physical therapy could control neck pain:
Q: Does physical therapy solve a herniated disk problem either in the cervical spine and the neck, does it make the disk go back into place?
A: No, it really doesn't but it tries to strengthen the muscle so it overcompensate[s] for it to see ...