McGowan v. Ill. Cent. R.R. Co.

2016 IL App (4th) 150848-U

BRIAN MCGOWAN, Special Administrator of the Estate of PAUL MCGOWAN, Deceased,and BARBARA MCGOWAN, Individually. Plaintiffs-Appellees, v. ILLINOIS CENTRAL RAILROAD COMPANY, Defendant-Appellant.

NO. 4-15-0848

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

October 18, 2016

NOTICE

This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from Circuit Court of McLean County

No. 08L177

Honorable Rebecca Simmons Foley, Judge Presiding.

JUSTICE STEIGMANN delivered the judgment of the court.

Justices Holder White and Appleton concurred in the judgment.

ORDER

¶ 1 Held: In this negligence action brought under the Federal Employers' Liability Act, the appellate court affirmed the jury's verdict against the defendant, Illinois Central Railroad Company, but vacated the award of damages and remanded for a new damages hearing.

¶ 2 In September 2003, the decedent, Paul McGowan, was diagnosed with lung cancer. He succumbed to the cancer in December 2003.

¶ 3 In December 2008, the administrator of Paul's estate, his son, Brian McGowan, filed a 13-count complaint seeking damages from various defendants because of Paul's lung cancer and resulting death. This appeal involves only one count as alleged against defendant, Illinois Central Railroad Company (Central). Accordingly, we limit our discussion to the issues surrounding that count.

¶ 4 In count IV of his complaint, Brian sought damages under the Federal Employers' Liability Act (FELA) (45 U.S.C.A. §§ 51 to 60 (2006)), alleging that Paul had worked for Central, where he was exposed to asbestos as a result of Central's negligence, which caused his lung cancer and resulting death.

¶ 5 In February 2009, Central moved to dismiss count IV, arguing that Brian brought that claim outside the three-year statute-of-limitations period provided by section 56 of FELA (45 U.S.C.A. § 56 (2006)). The trial court denied that motion.

¶ 6 In February 2015, a jury trial began on count IV. After the close of evidence, the trial court gave the jury a special interrogatory, asking whether count IV complied with the limitations requirements of section 56. The jury answered in the affirmative.

¶ 7 Thereafter, the jury returned a verdict for Brian and against Central, awarding Brian a total of $3,452,500 in damages ($2,055,833 for "pecuniary loss" to Paul's family members because of Paul's death and $1,396,667 for pain, suffering, and loss of life to Paul). The trial court later reduced the damages award to $2,940,583 in response to Central's posttrial motion.

¶ 8 On appeal, Central raises various issues concerning the statute of limitations and damages. For the reasons that follow, we affirm the jury's verdict but vacate the damages award and remand for a new damages hearing.

¶ 9 I. BACKGROUND

¶ 10 In September 2003, Paul was diagnosed with lung cancer. He died on December 4, 2003. In December 2008, Brian was appointed special administrator of Paul's estate.

¶ 11 On December 5, 2008, Brian filed a complaint. Pertinent to this appeal is count IV, in which Brian alleged, under FELA, that Central's negligence caused Paul to be exposed to asbestos, which caused his lung cancer and eventual death.

¶ 12 In February 2009, Central filed a motion to dismiss count IV of Brian's complaint.

(Central did not cite any state or federal statute under which the motion to dismiss was brought.) Central argued that Brian's claim fell outside the applicable statute of limitations, governed by section 56 of FELA (45 U.S.C. § 56 (2006)). The trial court denied Central's motion.

¶ 13 In February 2015, the cause proceeded to a jury trial. Brian presented evidence supporting his claim that Central's negligence caused Paul to be exposed to asbestos during his employment with Central, which, in turn, caused Paul's lung cancer and eventual death.

¶ 14 After Brian finished presenting evidence, Central moved for a directed verdict under section 2-1202 of the Code of Civil Procedure (735 ILCS 5/2-1202 (West 2008)), arguing, inter alia, that Brian's claim was barred by the statute of limitations. The trial court denied that motion, concluding that the jury should determine certain factual issues that control when the statute of limitations began to run.

¶ 15 After presenting its case, Central again moved for a directed verdict, renewing its claim that Brian's cause of action was barred by the statute of limitations. The trial court denied that motion.

¶ 16 The trial court then conducted a jury instruction conference, at which Central tendered several jury instructions on the following issues: (1) the applicable statute of limitations; and (2) damages. The court denied the instructions tendered by Central on those issues and, instead, granted and gave the instructions tendered by Brian.

¶ 17 In addition, the jury received the following special interrogatory:

¶ 18 "Was the complaint filed within three years from the date on which the estate's administrator knew, or reasonably should have known both a death occurred and that the death was wrongfully caused?"

¶ 19 The jury answered the interrogatory in the affirmative and returned a verdict for Brian and against Central.

¶ 20 The jury awarded Brian $3,452,500 in damages, $2,055,833 of which was awarded for pecuniary losses suffered by Paul's family as a result of his death. The jury found further that Paul was contributorily negligent in the amount of 10%, which reduced the award to $3,107,250. The trial court later entered judgment on the jury's verdict.

¶ 21 In April 2015, Central filed a motion for judgment notwithstanding the verdict. In September 2015, after conducting hearings, the trial court denied the motion, except as to the issue of a setoff. Accordingly, the court reduced the damages award to $2,940,583.

¶ 22 This appeal followed.

¶ 23 II. ANALYSIS

¶ 24 Defendant raises multiple arguments concerning the following topics: (1) the statute of limitations and (2) damages. We address those two areas in turn.

¶ 25 A. Statute of Limitations

¶ 26 Central raises various arguments concerning the statute of limitations. As best we can tell, Central's arguments fall into two general categories: (1) issues of law concerning the content of the special interrogatory and the jury instructions; and (2) issues of fact concerning whether the jury's interrogatory finding that Brian's claim complied with the statute of limitations was against the manifest weight of the evidence. We address those arguments in turn and reject them all.

¶ 27 1. Statutory Language and the Standard of Review

¶ 28 Although Central did not describe its motion to dismiss as such, we interpret that filing as a motion to dismiss pursuant to section 2-619(a)(5) of the Code of Civil Procedure (735ILCS 5/2-619(a)(5) (West 2008)), for an "action [that] was not commenced within the time limited by law." We review a trial court's decision whether to dismiss a cause of action under section 2-619(a)(5) de novo. Klancir v. BNSF Ry. Co., 2015 IL App (1st) 143437, ¶ 16, 40 N.E.3d 438 (addressing the dismissal of the plaintiff's FELA claim under section 2-619(a)(5)).

¶ 29 Section 56 of FELA provides that "[n]o action shall be maintained under this chapter unless commenced within three years from the day the cause of action accrued." 45 U.S.C.A. § 56 (2006). Under the federal discovery rule, a cause of action accrues "when a reasonable person knows or in the exercise of reasonable diligence should have known both of the injury and its governing cause." Fries v. Chicago & Northwestern Transportation Co., 909 F.2d 1092, 1095 (1990). For cases brought under FELA, the three-year statute-of-limitations period is "a condition of liability constituting a substantial part of the right created" and "federal law controls all substantive rights." (Internal quotations omitted.) Noakes v. National R.R. Passenger Corp., 312 Ill. App. 3d 965, 967, 729 N.E.2d 59 (2000) (superseded by statute on other grounds). Compliance with the three-year statute of limitations contained in section 56 of FELA is a "condition precedent" to recovery. Emmons v. Southern Pacific Transportation Co., 701 F.2d 1112, 1117 (West 1983). The burden is therefore on the plaintiff to establish compliance with the limitations period. Axe v. Norfolk Southern Ry. Co., 2012 IL App (5th) 110277, ¶ 11, 972 N.E.2d 243.

¶ 30 2. The Special Interrogatory

¶ 31 Central raises both an issue of law and an issue of fact as to the special interrogatory. First, as to the law, Central argues that the special interrogatory improperly described the law surrounding the FELA statute of limitations. Second, as to the facts, Central argues that, even if the interrogatory accurately reflected the statute-of-limitations law, the jury's "Yes" find-ing was against the manifest weight of the evidence. (Importantly, Central does not argue that the trial court erred by referring the statute-of-limitations issue to the jury.)

¶ 32 a. Did the Special Interrogatory

Accurately Describe the Statute of Limitations?

¶ 33 The trial court issued the following special interrogatory to the jury:

"Was the complaint filed within three years from the date on which the estate's administrator knew, or reasonably should have known both a death occurred and that the death was wrongfully caused?"

¶ 34 Central argues that the special interrogatory was flawed as a matter of law in the following two ways: (1) the interrogatory asked whether Brian filed his complaint within three years of when he knew or should have known that Paul's death was "wrongfully" caused; and (2) the interrogatory was based on the trial court's understanding of the Illinois state law discovery rule instead of the applicable federal discovery rule.

¶ 35 i. State vs. Federal Discovery Rule

¶ 36 Central argues that the trial court erred by incorporating Illinois' state law discovery rule in the interrogatory instead of the federal discovery rule. While we agree with...