Carlson v. BNSF Ry. Co.

Jason Carlson, Appellant, v. BNSF Railway Company, Respondent.

A18-0966

STATE OF MINNESOTA IN COURT OF APPEALS

May 20, 2019

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2018).

Reversed and remanded

Bratvold, Judge

Hennepin County District Court

File No. 27-CV-16-11771

Paula M. Jossart, Jossart Law Office, Burnsville, Minnesota; and

Christopher J. Moreland, Halunen Law, Minneapolis, Minnesota (for appellant)

Stephen M. Warner, Allison V. LaFave, Arthur, Chapman, Kettering, Smetak & Pikala, P.A., Minneapolis, Minnesota; and

Marianne Auld (pro hac vice), Kelly Hart & Hallman, LLP, Fort Worth, Texas (for respondent)

Considered and decided by Reilly, Presiding Judge; Bratvold, Judge; and Kalitowski, Judge.^*

UNPUBLISHED OPINION

BRATVOLD, Judge

In an appeal from a final judgment on his claim for damages under the Federal Employers' Liability Act (FELA), 42 U.S.C. §§ 51-60 (2012), appellant argues that the district court erred by granting respondent's motion for judgment as a matter of law (JMOL) on the jury's award for loss of earning capacity. Because the evidence was legally sufficient to submit the issue to the jury, we reverse and remand for entry of an amended judgment in favor of appellant.

FACTS

BNSF Railway Company (BNSF) hired appellant Jason Carlson in 2006. For about 12 years, Carlson primarily worked as a locomotive conductor, which required him to handle paperwork and perform physical tasks such as tying handbrakes, throwing switches, walking over railway crossing platforms, and performing air brake tests. Carlson's position generally required a significant amount of walking throughout the four seasons and in "[d]usty, uneven" conditions.

A. The November 2015 and May 2016 incidents and Carlson's medical care

On November 11, 2015, Carlson conducted a locomotive traveling from the Northtown railyard in Minneapolis to Dilworth. The departing crew told Carlson and his co-worker, an engineer, that the locomotive had a bad toilet, and that they had reported the problem. Before the locomotive left the railyard, Carlson noticed a "citrus smell," and saw a "blue puddle" underneath the toilet. Carlson reported the problem. The smell became worse after the locomotive starting moving. Carlson described the cab as "really confined."Carlson also stated that he had observed "clumps on the [toilet] floor" and the cab conditions were "nasty." During the trip, Carlson felt nauseated, had a headache, and was sweating. Carlson again reported the toilet problem; mechanical told him the toilet would be checked later. Overall, Carlson travelled under the described conditions for "well over 12 hours."

When Carlson arrived in Dilworth on November 12, he had a headache, a "really tight throat," and felt nauseated. Even after he left the locomotive, Carlson was "coughing up phlegm" and "couldn't sleep." Carlson returned to work as scheduled but his symptoms persisted. For example, soon after the November 11 incident, Carlson's knees became weak, he felt dizzy, and started to sweat. When this happened a second time, he went to the emergency room on November 17 and the physician prescribed a steroid nebulizer and an inhaler.

On November 18, Carlson returned to the emergency room because he "wasn't getting any relief from the initial symptoms." The emergency room physician recommended that Carlson see a primary care doctor. Carlson then saw a primary care doctor, who ordered additional respiratory medications. Carlson testified that he continued to experience symptoms, for which he sought medical treatment and was "searching for what was going on four to five months." Carlson also testified that, during this time, he was "missing a lot of work."

In April 2016, Carlson sought treatment from Dr. Karin Pacheco at National Jewish Health, which is a Denver hospital that is affiliated with the University of Colorado and is known for its treatment of respiratory diseases. Dr. Pacheco specializes inoccupational/environmental medicine. Carlson submitted to various medical tests, after which Dr. Pacheco diagnosed him with reactive airways dysfunction syndrome (RADS), which is "the new onset of asthma related to irritant exposures." He was also diagnosed with "some vocal cord dysfunction."

At about the time he started to see Dr. Pacheco, Carlson began using a face mask while at work and continued using an inhaler. Carlson nonetheless sometimes experienced choking or burning eyes while he was working.

On May 3, 2016, the cab in Carlson's locomotive "became full of smoke." Soon after, Carlson sought medical treatment at an emergency room. After this visit to the emergency room, the BNSF medical department placed Carlson on unpaid medical leave for 30 days. Carlson returned to work without restrictions in June 2016.

B. Carlson's lawsuit and medical testimony at trial

Carlson sued BNSF in July 2016 under FELA, asserting that BNSF had violated the Locomotive Inspection Act (LIA), 49 U.S.C. §§ 20701-20703 (2012), and other safety regulations, that BNSF negligently caused his injuries in the November 11, 2015, and May 3, 2016, incidents, and that BNSF was liable for his resulting damages, including past and future pain and suffering, health care expenses, loss of income, and loss of earning capacity. Carlson's case was tried to a jury in October 2017.

During trial, Carlson testified that he saw Dr. Pacheco "every three months" during 2016, two times in 2017, and was still receiving treatment. Carlson also testified that he was continuing treatment with his primary care doctor as well as taking six prescribedmedications. Before the November 11 incident, Carlson did not take any of these medications.

Carlson offered into evidence Dr. Pacheco's video trial deposition, which was recorded in September 2017. Dr. Pacheco testified that Carlson should continue to take his currently-prescribed medications for the foreseeable future. She also stated that, based on her physical examination of Carlson and his test results, along with other information, that

[Carlson] had developed RADS. He met the criteria. He had an irritant exposure, he had the immediate onset of symptoms, he had the demonstration of asthma by [testing]. And then he had irritant-triggered vocal cord dysfunction. We could see it. And also he behaved clinically in terms of the triggering by various irritants and the fact that he found the speech therapy techniques useful.

Dr. Pacheco also testified that, in her medical opinion, Carlson had sustained an injury during the November 11, 2015, incident, which resulted in his RADS and irritant-induced vocal-cord dysfunction. Dr. Pacheco testified that Carlson's RADS was likely permanent, even though she had initially told Carlson that RADS "typically resolve[s] over time." Dr. Pacheco testified that she did not limit or restrict Carlson's work as a conductor and explained that Carlson's health was generally better than when he first began treating with her because he was managing his asthma with his inhaler by using it about "once a day at work." Dr. Pacheco also testified that she "didn't have a lot of concerns" about Carlson continuing to work as a locomotive conductor, in part, because he "started to use a mask to reduce his inhalational exposures."

C. Evidence regarding Carlson's lost earning capacity

Dr. Pacheco wrote two letters in 2016 about Carlson's injuries and his return to work, both of which were received into evidence during trial. She testified about a June 2016 letter, in which she stated that Carlson may "need a change in his work environment" if his symptoms did not improve but he was "currently fit to return to duty." In a November 2016 letter, which was received during Carlson's testimony, Dr. Pacheco stated that Carlson could return to work without limitations but "[h]is asthma may be triggered by irritants, and he may benefit in the future from a job environment that limits exposure to vapors, dusts, gases, and fumes."

The jury also received evidence from a treating physician who did not testify, Dr. David Yehl. In May 2016, shortly after Carlson's second locomotive incident, Dr. Yehl's letter to BNSF stated that Carlson "suffers from asthma that is exacerbated by exposure to workplace chemicals" and that he would "benefit [from] a job environment that limits future potential exposure to any chemicals or inhalants."

Carlson offered evidence that, at the time of his injury, his wages averaged $494 per day, but the amount he earned depended on how many locomotive trips he conducted, which, in turn, depended on which "pool" he was assigned. Because of his seniority, Carlson could opt to work for either of two pools: the "extra board" or the "long haul." When working for the extra-board pool, Carlson had "random" assignments that sometimes involved working in the railyard. When working for the long-haul pool, Carlson conducted a locomotive from one point to another on a specific schedule. Working in the extra-board pool allowed Carlson to take more locomotive trips because he could return to work within12 hours, which increased his earnings. Working in the long-haul pool required Carlson to take fewer locomotive trips, because he had to take 24 to 48 hours off between shifts.

Before the November 2015 incident, Carlson chose to work in the extra-board pool to increase his earnings. After November 2015, Carlson used his seniority status to switch to the long-haul pool, which allowed him to follow Dr. Pacheco's advice and take a "break from the industrial environment." Carlson testified that he found the long-haul pool less industrial for two reasons. First, the long-haul locomotives generally had newer cabs; and second, Carlson avoided exposing himself to the industrial environment of the railyard. As a result of this change in his work pool, Carlson testified that he now works about half as many locomotive trips, which decreased his earnings.

D. BNSF's JMOL motions

After Carlson...