First Circuit finds for railroads in suit over cumulative injuries

By Jessica M. Karmasek | May 25, 2012


BOSTON (Legal Newsline) - A federal appeals court last week upheld a ruling in favor of two railroad companies in a case over a former employee's cumulative injuries.

The employee, Geoffrey Crowther, worked for defendants Consolidated Rail Corporation and CSX Transportation Inc. for about 30 years.

In September 2007, he filed separate lawsuits in a common pleas court against the defendants for causing cumulative, or wear-out, injuries to his neck, knees, left elbow and thumb after years of doing hard labor. The suits were dismissed without prejudice.

Not even two years later, in March 2009, Crowther filed another complaint against the defendants. This time, in the U.S. District Court for the District of Massachusetts, but for the same wear-out injuries, along with other claims for aggravation of physical conditions.

That same year, he filed another federal complaint against the railroad companies. This time, for an accidental injury he received to his left forearm while driving a spike in 2005.

The district court granted the defendants' motion for judgment as a matter of law as to most of Crowther's claims. Those remaining were tried to defendants' verdicts.

On appeal to the U.S. Court of Appeals for the First Circuit, Crowther argues that the lower court erred in granting the defendants judgment as a matter of law.

He also argues that the court was wrong to reject his neck and knee claims as untimely and the remaining claims insofar as they rested on alleged failures to perform ergonomic analyses of his activities or provide adequate tools.

Crowther also contends the court erred in admitting evidence that he was receiving disability benefits under the federal Railroad Retirement Act.

The First Circuit, in its May 18 ruling, affirmed the district court's decision on all issues.

On the evidence, no fact-finder "could reasonably have inferred that Crowther became aware of a work connection with his knee pain only after mid-September of 2004," wrote David H. Souter, retired U.S. Supreme Court justice, sitting by designation.

"Although Crowther stresses at length that the cases construing a (Federal Employers' Liability Act) plaintiff's right to get his case before a jury require not much more than a scintilla of evidence in plaintiff's favor on a disputed point, nothing but sympathy could obscure the apparent untimeliness of the knee claim here, and the Rule 50(a) judgment was undoubtedly correct."

The same is true as to Crowther's claim of neck injury, the First Circuit said.

"A physician's note from 2002 described Crowther as a railroad worker doing heavy work as a welder, complaining of right shoulder and arm pain and neck pain. Crowther testified, in a deposition, read into the record in his cross-examination, that the doctor said 'whatever you're doing right now... I would get away from it. Find something like a management job or something,'" Souter wrote.

"The trial judge was not exaggerating when he remarked that he failed to see how counsel could argue with a straight face that Crowther did not know of his neck problem in 2002 and understand its possible relation to his work."

The First Circuit also saw no error in the district court's entering judgment as a matter of law on the negligence claims based on inadequate tools and failure to obtain ergonomic studies of the activities required to perform Crowther's various jobs.

"The only evidence that proper tools were lacking related to 2005, the year of the accidental forearm injury. As to that specific injury, the theory was submitted to the jury (and rejected), but was properly barred with respect to the wear-out injury claims for cumulative effects of continually negligent conduct: there simply was no evidence of a persisting failure to provide adequate equipment over time," Souter wrote.

The district court also did not err in allowing the jury to consider evidence that Crowther was receiving railroad retirement benefits, the First Circuit said.

"The explanation was clear that the evidence of benefits was allowed in only as it might indicate whether Crowther had fulfilled his 'obligation, if he's asking for compensation or damages to replace lost wages, to engage in whatever work he is capable of engaging in.' And the court reminded the jurors that 'the defendants bear the burden of proving a failure to mitigate on the part of plaintiff by a preponderance of the evidence,'" Souter explained.

"But the more powerful reason showing that the discretionary ruling in favor of apprising the jury of the collateral benefits was ultimately reasonable is simply that Crowther's own testimony elevated the benefits evidence from merely circumstantial to a component of direct evidence of purposeful malingering.

"At a pretrial deposition, Crowther's counsel made it clear that the reason his client was not working was 'because he is on a disability annuity... That's why he is not working okay.'"

From Legal Newsline: Reach Jessica Karmasek by email at

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