Denning v. CSX Transp., Inc.

WILLIAM J. DENNING v. CSX TRANSPORTATION, INC.

No. M2012-01077-COA-R3-CV

COURT OF APPEALS OF TENNESSEE AT NASHVILLE

June 11, 2013 Session

Filed October 9, 2013

Direct Appeal from the Circuit Court for Sumner County

No. 25993C

C. L. Rogers, Judge

This appeal arises from a jury verdict in favor of Plaintiff in an action filed pursuant to the Federal Employers' Liability Act ("FELA"). Defendant appeals denial of its motion for judgment notwithstanding the verdict and the trial court's determination that post-judgment interest is properly awarded in the amount provided by Tennessee Code Annotated § 47-14-121 and not federal law. On cross-appeal, Plaintiff appeals the trial court's decision to exclude certain evidence and its determination that post-judgment interest is properly calculated from the date the trial court entered judgment on the jury verdict rather than the date the jury rendered its verdict as provided by Tennessee Code Annotated § 47-14-122. We affirm denial of Defendant's motion for judgment notwithstanding the verdict and the trial court's evidentiary decisions. We also affirm the trial court's determination that post-judgment interest is properly awarded at the rate provided by Tennessee Code Annotated § 47-14-121. We reverse the trial court's determination that post-judgment interest accrues fro m the date provided by federal law. We hold that state law controls the calculation of post-judgment interest to be awarded in FELA actions adjudicated in state court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in

part, Reversed in part and Remanded

DAVID R. FARMER, J., delivered the opinion of the Court, in which HOLLY M. KIRBY, J., and J. STEVEN STAFFORD, J., joined.

Christopher W. Cardwell and Mary Taylor Gallagher, Nashville, Tennessee, Andrew E. Tauber, Washington, DC and Kendra L. Smith Canonsburg, PA, for the appellant, CSX Transportation, Inc.

James Bryan Mosely, Murfreesboro, Tennessee and Joshua Leizerman, Toledo, Ohio, for the appellee, William J. Denning.

OPINION

Plaintiff/Appellee William J. Denning (Mr. Denning) was employed by Defendant CSX Transportation, Inc. ("CSXT") from 1963 through 2001, initially as a brakeman and, from 1978, as an engineer. In September 2004, Mr. Denning commenced an action against CSXT in the Circuit Court for Sumner County pursuant to the Federal Employers' Liability Act ("FELA"), codified at 45 U.S.C. §§ 51 et. seq., the Safety Appliance Act, codified at 49 U.S.C. § § 20301 et seq.; the Locomotive Inspection Act, codified at 49 U.S.C. § § 20701 et seq; and Title 49, Chapter II, Part 229 - Railroad Locomotive Safety Standards, Subpart C - Safety Requirements, § § § 229.41, 229.43, and 229.45. In his complaint as amended in March 2006, Mr. Denning alleged that CSXT's intentional conduct and negligent acts and omissions caused him to suffer injuries including cancer, asthma, neurological impairment, pulmonary diseases and other disorders resulting from exposure to asbestos, diesel exhaust and other carcinogens. He enumerated twelve alleged negligent acts and omissions, including violations of the Safety Appliance Act, the Locomotive Inspection Act, and Railroad Locomotive Safety Standards. Mr. Denning prayed for damages in an amount to exceed $25,000, punitive damages, attorneys' fees and costs. Considerable pre-trial proceedings, including a May 2007 McDaniel hearing, resolved the majority of Mr. Denning's claims. In November 2007, the trial court denied CSXT's motion in limine to preclude Mr. Denning from introducing evidence that exposure to diesel caused him to suffer Chronic Obstructive Pulmonary Disease ("COPD"). That claim was heard by a jury on November 5, 2007. The parties filed cross-motions for a mistrial, which the trial court granted in December 2007.

In February 2008, Mr. Denning moved the trial court to reconsider its ruling following the 2007 McDaniel hearing that Mr. Denning's arguments that stomach and esophageal cancer can be caused by exposure to diesel exhaust were inadmissible. The trial court denied this motion by order entered April 14, 2008. In November 2011, Mr. Denning's claim that CSXT negligently caused him to be exposed to diesel exhaust that resulted in COPD was again heard by a jury.

Following a four-day trial, on November 18, 2011, the jury returned a verdict in favor of Mr. Denning, finding that CSXT had violated the Locomotive Inspection Act. The jury determined that Mr. Denning had suffered damages in the amount of $250,000. The jury also determined that Mr. Denning was 90 percent at fault for his injuries. Following proposed judgments by the parties that differed with respect to the date from which post-judgment interest rightfully accrued, the trial court adopted the jury's finding that CSXT had violated the Locomotive Inspection Act and concluded that allocation of fault principles therefore did not apply. It also adopted Mr. Denning's argument that post-judgment interest should accrue pursuant to Tennessee Code Annotated § § 47-14-121 & 122, and awarded Mr. Denningpost-judgment interest in the amount of ten percent per annum from the date of the jury's verdict.¹ The trial court entered judgment on verdict on December 12, 2011.

In January 2012, CSXT filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. It also moved the trial court to alter or amend the judgment to limit Mr. Denning's recovery of post-judgment interest to the prevailing federal rate of .12 percent to be calculated beginning December 2, 2011, the date the trial court entered judgment on the jury verdict. By order entered April 4, 2012, the trial court denied CSXT's motion for a judgment notwithstanding the verdict or a new trial. The trial court held CSXT's motion to alter or amend in abeyance and granted CSXT ten days to supply law to support its argument that the federal law should control the rate and accrual date of post-judgment interest. By order entered May 1, 2012, the trial court granted in part and denied in part CSXT's motion to alter or amend. The trial court concluded that, pursuant to applicable federal law, interest should be calculated from December 12, 2011, the date it entered judgment on the jury verdict. Noting that CSXT had offered no statutory or case law to support its position that the federal post-judgment interest rate was applicable in a FELA action in state court, the trial court concluded that Mr. Denning was entitled to the State post-judgment interest rate of ten percent per annum. CSXT filed a timely notice of appeal to this Court.

Issues Presented

The issues raised for our review, as presented by CSXT, are:

1. Whether defendant CSX Transportation, Inc. ("CSXT") was entitled to a judgment notwithstanding the verdict, when plaintiff William Denning's only evidence of general and specific causation was opinion testimony from his treating physician, who lacked any scientific basis for his opinions.

2. Whether the trial court erred when, in a case brought under the Federal Employer's Liability Act, it applied Tennessee law, rather than federal law, as to post-judgment interest?

Mr. Denning raises two additional issues on cross-appeal:

1. Whether the trial court erred by not awarding interest in accordance with Tenn. Code Ann. § 47-14-122.

2. Whether the trial court erred by excluding evidence that diesel exhaust can cause esophageal cancer.

Standard of Review

A Tennessee Rule of Civil Procedure 50.02 motion for judgment notwithstanding the verdict is subject to the review applicable to a Rule 50.01 motion for directed verdict. Walker v. CSX Transp., Inc., No. M2010-00932-COA-R3-CV, 2011 WL 578780, at *2 (Tenn. Ct. App. Feb. 16, 2011)(citations omitted). The motions may be granted "only when the evidence in the case is susceptible to but one conclusion." Childress v. Currie, 74 S.W.3d 324, 328 (Tenn.2002)(citation omitted). On appeal, we review the trial court's determination de novo, viewing the evidence in a light most favorable to the non-moving party and drawing all reasonable inferences in that party's favor. Biscan v. Brown, 160 S.W.3d 462, 470 (Tenn. 2005)(citations omitted). Similarly, the determination of whether federal or state law is applicable is a question of law which we review de novo, with no presumption of correctness for the determination of the trial court. See Morgan Keegan & Co. v. Smythe, 401 S.W.3d 595, 602 (Tenn. 2013)(whether an action is preempted by federal law is a question of law that appellate courts review de novo).

Discussion

As noted above, Mr. Denning brought this cause of action under FELA, and the jury's award of damages to Mr. Denning arises from the jury's finding that CSXT violated the Locomotive Inspection Act ("LIA"). The LIA provides, in relevant part:

A railroad carrier may use or allow to be used a locomotive or tender on its railroad line only when the locomotive or tender and its parts and appurtenances-

(1) are in proper condition and safe to operate without unnecessary danger of personal injury;

(2) have been inspected as required under this chapter and regulations prescribed by the Secretary of Transportation under this chapter; and

(3) can withstand every test prescribed by the Secretary under this chapter.

49 U.S.C. § 20701.² The United States Supreme Court has concluded that the LIA "'manifest[s] the intention [of Congress] to occupy the entire field of regulating locomotive equipment[.]'" Kurns v. R.R. Friction Prods. Corp., 132 S. Ct. 1266 (U.S. 2012)(quoting Napier v. Atlantic Coast Line R. Co., 272 U.S. 605, 611, 47 S. Ct. 207 (1926)). The LIA does not confer a separate cause of action, but "merely makes violation of its prohibitions 'unlawful.'" Urie v. Thompson, 337 U.S. 163, 188, 69 S.Ct. 1018, 1034 (1949). It "supplements the Federal Employers' Liability Act by imposing on interstate railroads 'an absolute and continuing duty' to provide safe equipment." Id. (quoting Lilly v. Grand Trunk Western R. Co., 317 U.S. 481,...