Marvin Abernathy v. Eastern Illinois Railroad Comp ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 18-2068 & 18-2153
MARVIN ABERNATHY,
Plaintiff-Appellee, Cross-Appellant,
v.
EASTERN ILLINOIS RAILROAD COMPANY,
Defendant-Appellant, Cross-Appellee.
____________________
Appeals from the United States District Court for the
Central District of Illinois.
No. 3:15-cv-03223-SEM-TSH — Sue E. Myerscough, Judge.
____________________
ARGUED FEBRUARY 6, 2019 — DECIDED OCTOBER 16, 2019
____________________
Before KANNE, SYKES, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. Plaintiff Marvin Abernathy was
injured while working for defendant Eastern Illinois Railroad
Company. He sued under the Federal Employers’ Liability
Act (FELA), 45 U.S.C. § 51 et seq., alleging that the Railroad
negligently failed to provide reasonably safe working condi-
tions by failing to provide appropriate equipment for the job
he was doing when he was hurt.
2 Nos. 18-2068 & 18-2153
A jury awarded Abernathy $525,000 in damages. The Rail-
road moved for judgment as a matter of law or a new trial.
The district court denied both requests, and the Railroad has
appealed, raising a host of issues. Abernathy has filed a cross-
appeal asserting that the district court erred by not awarding
him sufficient costs to cover his expert witness fees. We affirm
Judge Myerscough’s decisions in all respects.
I. Facts
Abernathy worked as a track inspector for the Eastern Illi-
nois Railroad Company. His duties included replacing and
repairing railroad ties. On September 13, 2012, the Railroad
sent Abernathy and another employee, Richard Probus, to re-
pair a railroad crossing about six or seven miles away from
the Railroad’s yard in Charleston, Illinois. Abernathy was in
charge of the job. The repair required him and Probus to
transport six ties from the yard to the crossing.
In 2012, the Railroad had a “tie crane,” a vehicle that runs
on the railroad tracks and is well-suited to transporting rail-
road ties, but it had been out of commission for years. Aber-
nathy and Probus had only two options for transporting the
ties: a backhoe or a pickup truck, either of which would need
to travel on public roads rather than railroad tracks. Aber-
nathy chose to use the backhoe. He testified that he had never
used the pickup truck to haul ties before, but that he had used
the backhoe for similar jobs numerous times, although not on
public roads and not with this heavy a load. Abernathy and
Probus loaded four ties into the bucket of the backhoe and
two across the top of the bucket, resting on the arms of the
machine. Abernathy testified that when the bucket is rolled
back, it locks the resting ties into place. Abernathy drove the
Nos. 18-2068 & 18-2153 3
backhoe along a public highway. Probus followed in the
pickup, which was loaded with tools needed to install the ties.
Abernathy drove in low gear, but he started to experience
“road bounce.” He started braking, and two ties fell out of the
backhoe’s bucket. Abernathy stopped on the shoulder of the
road and tried to lift the ties back into the bucket. In lifting a
tie, he injured his back. He also smashed a finger between the
tie he was holding and another tie in the bucket. Despite the
accident, Abernathy and Probus were able to finish reloading
the ties, and they resumed their trip and finished the repair
job. Abernathy remained in pain for the rest of the day.
The following morning, Abernathy reported the injury to
Tim Allen, the general manager of the Railroad. Allen told
him “to take it easy” and “be on light duty” for a while. Ab-
ernathy worked through the pain on lighter duty for the next
year but was unable to return to his regular work. The Rail-
road terminated his employment in February 2014. He even-
tually had physical therapy, epidural injections, and then sur-
gery in 2016. After the surgery, he continued to experience
pain in his back and legs. At the time of trial, his surgeon had
still not cleared him for any type of work.
II. The Trial
Abernathy sued the Railroad under the FELA, 45 U.S.C
§ 51, alleging that it had been negligent in failing to provide
an operable tie crane and requiring him to use the backhoe,
which was inadequate for his assigned task of transporting
the ties. The trial lasted three days. Abernathy testified and
called three other lay witnesses: his wife Carrie Abernathy,
Richard Probus, and Lowell McElwee, a Railroad engineer
who worked with Abernathy.
4 Nos. 18-2068 & 18-2153
Probus testified that on the day of Abernathy’s injury, they
could not have used the pickup truck to transport the ties be-
cause they needed the pickup truck to transport the other
equipment needed to install the ties. Probus also testified that
the Railroad had acquired an operable tie crane after Aber-
nathy’s accident. Probus explained that the tie crane was now
being used to transport ties and that manual lifts of ties were
not necessary with the new machine. He stated that the avail-
ability of the tie crane makes his job safer.
Abernathy testified that when the Railroad’s tie crane had
been operational, he used it regularly. He explained that the
tie crane was the preferred method for moving ties because it
did not require manual lifting or traveling on public roads. He
also testified that before his 2012 injury, he had repeatedly
asked the Railroad to replace the tie crane.
Abernathy also presented the depositions of Doctors Renu
Bajaj, James Kohlman, and Thomas Lee. Dr. Lee, Abernathy’s
surgeon, offered testimony relevant to damages and causa-
tion. He testified that he did not expect Abernathy to regain
the level of functionality he had prior to his accident. He also
testified that Abernathy certainly would not be able to return
to work involving heavy manual labor. Dr. Lee also said that,
to a reasonable degree of medical certainty, Abernathy’s
symptoms were caused or aggravated by the lifting accident
in September 2012.
The Railroad called four witnesses: general manager Tim
Allen; Everett Fletcher; Gayle Garrett, the office secretary for
the Railroad; and Kendall Mulvaney, the superintendent of
R&R Contractors, testifying as an expert witness in railroad
repair and maintenance. The Railroad defended on the theory
Nos. 18-2068 & 18-2153 5
that a backhoe is a generally accepted method for transport-
ing ties in the rail repair industry.
After the close of Abernathy’s case-in-chief, the Railroad
moved for judgment as a matter of law under Federal Rule of
Civil Procedure 50(a), which the court denied. The Railroad
renewed its motion under Rule 50(b) at the close of all evi-
dence and prior to the verdict, and the court again denied it.
The jury found that the Railroad was negligent and that its
negligence contributed to Abernathy’s injuries. The jury cal-
culated Abernathy’s total damages to be $750,000. However,
the jury found that Abernathy was also at fault for thirty per-
cent of the total fault, which meant the jury awarded a net
verdict of $525,000. The district court denied the Railroad’s
post-trial motions for judgment as a matter of law or a new
trial. The district court also awarded costs to Abernathy as the
prevailing party but rejected his request to include as costs
$3,800 in witness fees paid to Doctors Lee and Bajaj. The Rail-
road has appealed the judgment against it, and Abernathy has
cross-appealed the denial of his request for expert witness
fees as part of his costs.
III. Legal Analysis
We take up the issues on appeal in three groups. First, we
address the Railroad’s arguments for judgment as a matter of
law on the theory that Abernathy’s evidence was insufficient.
Second, we address the Railroad’s arguments that the district
court abused its discretion in admitting certain evidence at
trial. Third, we address Abernathy’s cross-appeal on the
award of costs.
6 Nos. 18-2068 & 18-2153
A. Judgment as a Matter of Law
The FELA provides a federal remedy for railroad employ-
ees who are injured on the job. To prove a claim under the
FELA, a plaintiff must prove “the traditional common law el-
ements of negligence, including foreseeability, duty, breach,
and causation.” Fulk v. Illinois Central Railroad Co., 22 F.3d 120,
124 (7th Cir. 1994). However, “[b]ecause it is meant to offer
broad remedial relief to railroad workers, a plaintiff’s burden
when suing under the FELA is significantly lighter than in an
ordinary negligence case.” Holbrook v. Norfolk Southern Rail-
way Co., 414 F.3d 739, 741–42 (7th Cir. 2005); see also Harbin v.
Burlington Northern Railroad Co., 921 F.2d 129, 131 (7th Cir.
1990) (“It is well established that the quantum of evidence re-
quired to establish liability in an FELA case is much less than
in an ordinary negligence action.”). A railroad-employer is li-
able where “employer negligence played any part, even the
slightest, in producing the injury.” Rogers v. Missouri Pacific
Railroad Co., 352 U.S. 500, 506 (1957).
The Railroad challenges the sufficiency of evidence as to
all elements of negligence. We consider duty and breach to-
gether, and foreseeability and causation separately. “This
Court reviews sufficiency of the evidence challenges de novo,
viewing the evidence in the light most favorable to the non-
moving party and drawing all inferences in [his] favor.”
Crompton v. BNSF Railway Co., 745 F.3d 292, 295 (7th Cir. 2014).
We “will overturn a jury verdict ‘only when there is a com-
plete absence of probative facts to support the conclusion
reached.’” Id. at 29596, quoting Lavender v. Kurn, 327 U.S. 645,
653 (1946). Here, probative evidence supported the jury’s ver-
dict that Abernathy established each element of negligence.
Nos. 18-2068 & 18-2153 7
The district court did not err in declining to overturn the
jury’s verdict.
1. Duty & Breach
The Railroad had a duty to provide Abernathy a reasona-
bly safe working environment. See Crompton, 745 F.3d at 296.
The Railroad points out correctly that it “could have provided
a reasonably safe workplace notwithstanding the fact that
safer workplace alternatives exist.” Taylor v. Illinois Central
Railroad Co., 8 F.3d 584, 586 (7th Cir. 1993). The Railroad ar-
gues that Abernathy produced no evidence that the equip-
ment available to haul ties (the backhoe and pickup truck) and
the way in which he was trained to perform a manual lift were
unsafe. Instead, Abernathy produced evidence pertaining to
the absence of the tie crane. The tie crane evidence, the Rail-
road argues, showed only that there was a safer alternative to
the backhoe and pickup, which is not sufficient to establish
negligence. See Darrough v. CSX Transportation Inc., 321 F.3d
674, 676 (7th Cir. 2003) (railroad does not have duty to provide
the safest working environment).
The Railroad’s argument relies on the faulty premise that
evidence of safer alternatives can never even be relevant to
whether an employer exercised reasonable care. When a rail-
road assigns an employee a task using a particular method
and the employee is injured while executing the task, evi-
dence of a safer alternative method is relevant to whether the
method provided was reasonable. See Stone v. New York, Chi-
cago & St. Louis Railroad Co., 344 U.S. 407, 409 (1953) (plaintiff
was injured pulling ties using the method his supervisor in-
structed him to use; evidence of three alternative methods for
pulling ties was relevant to whether railroad was negligent).
Based on all the evidence presented, the jury could reasonably
8 Nos. 18-2068 & 18-2153
have found that it was not reasonably safe to assign Aber-
nathy to replace the ties without an operable tie crane.
The Railroad’s argument as to the safety of a manual lift is
similarly flawed. Abernathy did not argue that under all cir-
cumstances, the Railroad is negligent if it requires an em-
ployee to perform a manual lift. He argued that the Railroad
was negligent where it could have provided employees with
equipment that prevented the need for impromptu manual
lifts on public roads but chose not to repair or replace this
equipment.
The Railroad’s reliance on Walker v. Northeast Regional
Commuter Railroad, 225 F.3d 895 (7th Cir. 2000), is thus mis-
placed. In Walker, we affirmed summary judgment for a rail-
road in an FELA case for injuries from performing a manual
lift. Plaintiff Walker worked as a machinist in a repair shop.
He injured his back lifting a replacement blade for a machine
that cut metal. Id. at 896. The blade weighed about 140
pounds, and Walker lifted it with one other employee. Id. A
crane and a forklift were available to the men but could not be
used to assist in the lift because of the configuration of the
shop. Walker argued that his employer was negligent in re-
quiring him to lift more than fifty pounds and “in configuring
the shop in such a way as to prohibit the use of mechanical
lifting aids.” Id. at 898.
Walker is distinguishable. First, Walker actually made an
explicit argument that his employer’s demand that he lift
more than fifty pounds was sufficient by itself to support a
finding of negligence. In rejecting this argument, we con-
trasted the case with those in which plaintiffs “showed the
availability of alternative methods and safeguards that would
ensure employee safety” and found telling that Walker
Nos. 18-2068 & 18-2153 9
produced no evidence that he or any other machinists “had
complained about problems in changing the blade on other
occasions.” Id. In this case, Abernathy offered evidence of
safer alternatives and prior employee complaints about the
lack of an operable tie crane. As to the second argument about
the shop configuration, Walker presented no evidence that the
manual lift in his case was not reasonably safe given the cir-
cumstances, and in fact he “testified that he and [his co-lifter]
assumed that they could pick up the blade” with no problem.
Id. at 899.
Here, however, Abernathy offered evidence that the tie
crane was the appropriate equipment to use for the job he was
performing with a backhoe on the day he was injured. Allen’s
testimony on cross-examination and Probus’s testimony al-
lowed the jury to find that the pickup truck was not an ade-
quate alternative. Abernathy and Probus both testified that an
operable tie crane made their work safer. Abernathy ex-
plained that the tie crane allowed employees to avoid manual
lifts and traveling on public roads. The jury could reasonably
have found that the Railroad did not provide Abernathy with
equipment appropriate for the task he was assigned and that
his working environment was not reasonably safe.
2. Foreseeability
Abernathy was required to show that it was foreseeable to
the Railroad that transporting ties using a backhoe or pickup
as opposed to a tie crane “would or might result in a mishap
and injury.” CSX Transportation, Inc. v. McBride, 564 U.S. 685,
703 (2011), quoting Gallick v. Baltimore and Ohio Railroad Co.,
372 U.S. 108, 118, n.7 (1963). To establish foreseeability, “a
plaintiff must show that the employer had actual or construc-
tive notice” of potential harm. Holbrook v. Norfolk Southern
10 Nos. 18-2068 & 18-2153
Railway Co., 414 F.3d 739, 742 (7th Cir. 2005). The railroad may
be liable “even if ‘the extent of the [injury] or the manner in
which it occurred’ was not ‘probable’ or ‘foreseeable.’”
McBride, 564 U.S. at 70304, quoting Gallick, 372 U.S. at 12021
& n.8 (alteration in McBride; emphasis added here). The Rail-
road argues that Abernathy failed to prove negligence be-
cause he failed to show that his injury was foreseeable. The
Railroad argues that it could not have known that Abernathy
would use the backhoe or that doing so would result in
dropped ties. The backhoe, the Railroad points out, had been
used to transport ties without incident on multiple prior oc-
casions and there was no defect in the machine that caused
the tie to fall. Further, as the Railroad’s expert, Mulvaney, tes-
tified, a backhoe was an accepted method in the railroad re-
pair injury for transporting ties. From these facts, the Railroad
contends there was insufficient proof of foreseeability.
The Railroad’s argument misunderstands what the FELA
requires. Abernathy does not need to show that the Railroad
could have foreseen the particular consequences of its negli-
gence. He needed to show only that “a particular condi-
tion”—here, the absence of appropriate equipment—“would
or might result in” any type of “mishap and injury.” McBride,
564 U.S. at 703, quoting Gallick, 372 U.S. at 118 n. 7 (emphasis
added here); see Gallick, 372 U.S. at 11820 (potential harm
was foreseeable where railroad had allowed stagnant pool of
filthy water to remain near worksite and employee was bitten
by an insect, which led to infection and ultimately amputation
of both legs). Abernathy needed to show only “circumstances
which a reasonable person would foresee as creating a poten-
tial for harm.” McGinn v. Burlington Northern Railroad Co., 102
F.3d 295, 300 (7th Cir. 1996).
Nos. 18-2068 & 18-2153 11
The evidence here supported a finding that a reasonable
person in the Railroad’s position could have foreseen that
transporting ties in a backhoe or pickup could lead to injury.
The Railroad knew that its tie crane had not been operational
since 2008. Abernathy offered evidence that he had repeatedly
asked the Railroad to repair or replace it. Abernathy and Pro-
bus both testified that the tie crane was safer to use in hauling
ties, in part because it prevented employees from having to
lift ties manually and travel on public roads.
3. Causation
In support of judgment as a matter of law, and now on
appeal, the Railroad argued that even if it was negligent in
failing to provide a tie crane, Abernathy failed to prove that
the alleged negligence caused his injuries. Abernathy’s man-
ual lift, the Railroad contends, caused his injuries, and this lift
was an act subsequent to and independent of any safety issues
that arose because the tie crane was not available.
The Railroad’s argument conflicts with the liberal causa-
tion standard under the FELA. “Juries in such cases are
properly instructed that a defendant railroad ‘caused or con-
tributed to’ a railroad worker’s injury ‘if [the railroad’s] neg-
ligence played a part—no matter how small—in bringing
about the injury.” McBride, 564 U.S. at 705; see also Harbin v.
Burlington Northern Railroad Co., 921 F.2d 129, 131 (7th Cir.
1990), quoting Rogers v. Missouri Pacific Railroad Co., 352 U.S.
500, 506 (1957) (“For under the FELA, ‘the test of a jury case is
simply whether the proofs justify with reason the conclusion
that employer negligence played any part, even in the slightest,
in producing the injury… .”) (emphasis in Harbin). “The FELA
vests the jury with broad discretion to engage in common
12 Nos. 18-2068 & 18-2153
sense inferences regarding issues of causation and fault.”
Crompton v. BNSF Railway Co., 745 F.3d 292, 296 (7th Cir. 2014).
There was sufficient evidence here that the Railroad’s neg-
ligence played a part in bringing about Abernathy’s injury.
Abernathy had to use the backhoe on a public roadway to
transport the ties because the Railroad had not repaired or re-
placed its tie crane, which had been out of service for years.
Vibrations caused a tie to fall off the backhoe and onto the
public roadway that Abernathy was forced to use because of
the absence of a tie crane. Abernathy had to remove the tie,
which was obstructing the public road, and he had to do it
quickly. He had no option other than to lift the tie manually
back into the backhoe, which injured his back. A reasonable
jury could infer that the Railroad’s negligence played some
part in causing Abernathy’s injury. The district court correctly
denied the Railroad’s motion for judgment as a matter of law.
B. New Trial Motion Based on Evidentiary Rulings
The Railroad also argues that the district judge erred in
three decisions to admit evidence, contending that each is suf-
ficient to warrant a new trial. We review the denial of a new
trial motion for an abuse of discretion. See, e.g., Johnson v. Gen-
eral Board of Pension & Health Benefits of United Methodist
Church, 733 F.3d 722, 730 (7th Cir. 2013); Kossman v. Northeast
Illinois Regional Commuter Railroad, 211 F.3d 1031, 1036 (7th
Cir. 2000). We find no abuse of discretion in any of the chal-
lenged evidentiary rulings.
1. Testimony of Timothy Allen
First, the Railroad objects to a line of cross-examination of
its general manager, Timothy Allen, regarding his own use of
a company pickup truck to transport railroad ties. The
Nos. 18-2068 & 18-2153 13
Railroad argues that Allen’s use of the truck was so dissimilar
from the way Abernathy might have used the truck on the day
he was injured as to make the evidence irrelevant.
Again, Abernathy had to prove that the Railroad did not
provide a reasonably safe method for transporting railroad
ties. See Brown v. Western Railway of Alabama, 338 U.S. 294, 297–
98 (1949). The Railroad argued that the pickup truck was a
reasonably safe and available way for Abernathy to do his job.
Allen testified that he thought Abernathy should have used
the pickup truck rather than using the backhoe to haul ties on
a public road.
During cross-examination, Allen acknowledged that on
one occasion, he had used the same pickup to take 20 to 25
rejected railroad ties to a friend. Allen admitted that, assum-
ing each tie weighed just 140 pounds, hauling 20 ties would
have meant the pickup truck was carrying 2,800 pounds.1 The
pickup truck was rated to haul only 1,500 pounds. When
asked about this discrepancy, Allen said he had not been
aware that he had been operating the pickup truck at almost
double its load capacity. Probus later testified that he and Ab-
ernathy chose not to use the pickup on the day of Abernathy’s
injury because they could not use it to haul both the ties and
the tools needed for the job.
Judge Myerscough acted well within her discretion in al-
lowing this line of cross-examination. Evidence is relevant if
it has any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable
1 The jury heard conflicting testimony regarding the weight of rail-
road ties. For purposes of this line of questioning, it was assumed that the
average railroad tie weighs 140 pounds.
14 Nos. 18-2068 & 18-2153
or less probable than it would be without the evidence. Fed.
R. Evid. 401. The testimony about Allen’s previous use of the
pickup satisfied this definition. It was relevant for the jury to
know that when Allen testified that the pickup truck was a
reasonably safe alternative method available to Abernathy—
a key point for the Railroad’s defense—he was not familiar
with the pickup’s hauling capacity. That rebuttal was espe-
cially relevant given Probus’s testimony that he and Aber-
nathy chose not to use the pickup in part because of the
truck’s load limit.
2. Testimony about ADM
Second, the Railroad objects to the admission of evidence
regarding the financial ties of its expert witness, Kevin Mul-
vaney, to the Railroad’s parent company, the agribusiness gi-
ant Archer Daniels Midland Company (“ADM”). Before trial,
the district court had granted the Railroad’s unopposed mo-
tion in limine barring mention of its relationship to ADM. At
trial, the court reversed that ruling after Abernathy’s counsel
explained that they had not known before trial that Mulvaney
would testify. The district court let Abernathy’s counsel ask
Mulvaney whether ADM was the largest customer of his em-
ployer. He answered “yes.” In response to the next question,
Mulvaney said he did not know whether ADM was the Rail-
road’s parent company.
The court did not abuse its discretion in allowing these
questions. Bias is a “permissible and established basis of im-
peachment.” United States v. Abel, 469 U.S. 45, 50 (1984) (hold-
ing that government’s evidence as to a defense witness’s bias
was properly admitted). Bias is the “quintessentially appro-
priate topic for cross examination.” Bachenski v. Malnati, 11
F.3d 1371, 1375 (7th Cir. 1993). We have held repeatedly that
Nos. 18-2068 & 18-2153 15
parties should be granted reasonable latitude in cross-exam-
ining witnesses for bias. See, e.g., United States v. Manske, 186
F.3d 770, 777 (7th Cir. 1999), citing United States v. Frankenthal,
582 F.2d 1102, 1106 (7th Cir. 1978).
The information involving ADM did not become relevant
to bias until Mulvaney took the stand. In choosing to call an
expert witness with economic ties to ADM, the Railroad made
its parent-subsidiary relationship with ADM relevant to show
potential bias on the part of Mulvaney. The district court did
not abuse its discretion by allowing this evidence of arguable
bias.
3. The Tie Crane Evidence
The Railroad’s third evidentiary challenge is to admission
of evidence regarding the tie crane. The Railroad argues on
appeal, as it did at trial, that this evidence is not relevant to
whether the available methods of transporting ties when Ab-
ernathy was injured (i.e., the backhoe and the pickup truck)
were reasonably safe. The Railroad also contends that this ev-
idence confused the jury because it implied that the Railroad
had a duty to employ the safest methods available, instead of
just reasonably safe methods. The Railroad is particularly crit-
ical of the court’s admission of evidence that it bought a new
tie crane after Abernathy’s injury. (The Railroad’s briefs on
appeal do not cite Federal Rule of Evidence 407, which ad-
dresses evidence of subsequent remedial measures, but its ar-
guments invoke that rule’s rationale.)
As explained above, the Railroad is right that an employer
can provide a reasonably safe workplace even if safer work-
place alternatives exist, and evidence of a safer alternative is
not conclusive evidence of negligence. See Taylor v. Illinois
16 Nos. 18-2068 & 18-2153
Central Railroad Co., 8 F.3d 584, 586 (7th Cir. 1993) (“proof of a
safer alternative is not necessarily proof of negligence”). Nev-
ertheless, evidence of safer alternative methods is still rele-
vant to show that the available methods were not reasonably
safe. See Stone v. New York Central & St. Louis Railroad Co., 344
U.S. 407, 409 (1953). Such evidence is relevant to show indus-
try standards and to establish whether a given method is rea-
sonably safe relative to alternatives. See Rogers v. Missouri Pa-
cific Railroad Co., 352 U.S. 500, 503 (1957) (reinstating jury ver-
dict for injured employee in light of evidence of safer alterna-
tive method). Thus, evidence of the tie crane was relevant to
the issues of duty and breach, and specifically to determine
whether the methods the Railroad made available to Aber-
nathy were in fact reasonably safe. The jury was permitted to
make inferences from evidence presented on an alternative
method, the tie crane. That does not mean the jury applied an
incorrect standard (requiring the safest possible workplace).
The jury instructions stated correctly that the applicable
standard is that the “FELA requires defendant to exercise rea-
sonable care to provide a reasonably safe workplace.”
The evidence that a new tie crane was purchased after Ab-
ernathy’s injury was also admissible. Rule 407 generally pre-
vents admission of evidence of subsequent remedial
measures to prove fault, but the rule and our precedents ex-
pressly permit this evidence if, among other reasons, “the fea-
sibility of the remedial measure” is contested. See, e.g., Ross v.
Black & Decker Inc., 977 F.2d 1178, 1184–85 (7th Cir. 1992) (af-
firming admission of subsequent remedial measures where
defendant disputed feasibility).
In this case, the Railroad chose to contest the feasibility of
both purchasing a new tie crane and fixing the old one. At trial
Nos. 18-2068 & 18-2153 17
and in deposition testimony, the Railroad’s witnesses offered
several reasons why the Railroad chose not to make a tie crane
available in the four years or so between the original tie
crane’s breakdown and Abernathy’s injury. These reasons in-
cluded that the cost of repairing the original tie crane or buy-
ing a new one was prohibitively high, that the original tie
crane was not used enough to justify the expense, and that the
Railroad was concerned that any money spent would be
wasted because Abernathy would misuse the machine so that
it would soon break down again.
We can assume that if the Railroad had chosen to stipulate
before trial to the feasibility of making a tie crane available to
Abernathy, he would not have been allowed to present evi-
dence of the post-injury purchase of a new tie crane. See Ross,
977 F.2d at 1185. But the Railroad could not both dispute fea-
sibility and block Abernathy from introducing contrary evi-
dence to show that it would have been feasible to replace the
equipment. If the Railroad was concerned that the jury might
use this evidence to infer negligence improperly, it also could
have requested a limiting jury instruction. It did not. See
Trytko v. Hubbell, Inc., 28 F.3d 715, 725 (7th Cir. 1994), citing
United States v. Murzyn, 631 F.2d 525, 531 (7th Cir. 1980). The
district court did not err by admitting this evidence.
C. Plaintiff’s Bill of Costs
Following trial, Abernathy filed a bill of costs. The only
point of controversy is his claim for $3,800 for fees paid to his
treating physicians for their depositions. The Railroad ob-
jected to these costs on the ground that 28 U.S.C. § 1821(b)
limits witness fees to forty dollars per day unless some other
provision of law provides for a higher rate. The district court
18 Nos. 18-2068 & 18-2153
agreed with the Railroad and limited the witness fees in the
bill of cost to forty dollars per witness per day.
We review the district court’s award of costs for an abuse
of discretion. See Halasa v. ITT Educational Services, Inc., 690
F.3d 844, 852 (7th Cir. 2012); Stanley v. Cottrell, Inc., 784 F.3d
454, 464 (8th Cir. 2015). However, we review legal questions
related to the cost award de novo. See Central States, Southwest
Areas Pension Fund v. White, 258 F.3d 636, 640 (7th Cir. 2001)
(standard of appellate review is de novo on a question of law
in interpreting a statute); see also Stanley, 784 F.3d at 464.
Both doctors’ video depositions were sought by Aber-
nathy himself, and he presented them as evidence at trial. He
contends that Federal Rules of Civil Procedure 26(b)(4)(E)(i)
and 54(d)(1) work together to supersede the forty-dollar-per-
day limit of § 1821 and allow him, as the prevailing party, to
recover the entire “reasonable fee” he paid his expert wit-
nesses for their depositions.
We affirm the district court’s denial of the higher witness
fees. Abernathy’s argument is contrary to the Supreme
Court’s interpretation of the interaction between these rules
set forth in Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 U.S.
437 (1987), and is not supported by Seventh Circuit precedent.
The district court properly limited the witness fees the Rail-
road must pay to forty dollars per witness per day.
In Halasa, we affirmed the district court’s ruling that the
prevailing defendant could be reimbursed for fees related to
the deposition of an expert witness in excess of forty dollars
per day under Rule 26(b)(4)(E)(i). We held that the “reasona-
ble fee” requirement in Rule 26(b)(4)(E)(i) can, in certain cases,
supersede the specific payment schedule in § 1821(b). 690 F.3d
Nos. 18-2068 & 18-2153 19
at 852. However, the district court decision in that case was
based on the fact that the deposition of that expert witness,
though initially paid for by the defendant, had been taken by
the plaintiff. Halasa v. ITT Educational Services, Inc., 2012 WL
639520, at *2 (S.D. Ind. Feb. 27, 2012) (“Federal Rule of Civil
Procedure 26(b)(4)(E)(i) provides that the party who deposes
an expert witness—which in this case was Halasa—shall ‘pay
the expert a reasonable fee for time spent.’”). The defendant
in Halasa had not insisted that plaintiff pay its witness at the
time of the deposition, as it could have under Rule
26(b)(4)(E)(i). Instead, the defendant had paid its own witness
his usual expert fee for time spent on the deposition the plain-
tiff had taken. The defendant waited until its final bill of costs
to request that payment under Rule 26(b)(4)(E)(i).
Thus, because the defendant in Halasa was the prevailing
party and because plaintiff, as the party who had sought the
deposition of the defendant’s expert, had an obligation under
the Rule 26(b)(4)(E)(i) to pay the costs of that deposition, the
district court was permitted to order that the defendant be
awarded the amount of reasonable witness fees it actually
paid, regardless of the fee limits set forth in 28 U.S.C.
§ 1821(b). Here, however, Abernathy is not asking that the
costs of the depositions be reimbursed under Rule
26(b)(4)(E)(i). He instead seeks to have the costs of deposing
his own expert witnesses reimbursed under Rule 54(d)(1)
alone, a question that was not addressed in Halasa.
This case is much closer to the Supreme Court’s decision
in Crawford Fitting, which rejected Abernathy’s interpretation
of these rules. The issue in Crawford Fitting was whether a
party could be reimbursed under Rule 54(d)(1) for the higher
expert fees it had paid to have its own expert witness testify
20 Nos. 18-2068 & 18-2153
at trial. 482 U.S. at 438–39. The Court rejected that claim, hold-
ing that “when a prevailing party seeks reimbursement for
fees paid to its own expert witnesses, a federal court is bound
by the limit of § 1821(b), absent contract or explicit statutory
authority to the contrary.” Id. at 439. The Court found that the
rule and statute did not conflict, and that while Rule 54(d)(1)
permits prevailing parties to recover costs, § 1821(b) places a
limit on the amount that can be recovered. Id. at 444–45.
Abernathy argues that we should distinguish Crawford Fit-
ting and instead follow and extend the reasoning of the Eighth
Circuit in Stanley v. Cottrell, Inc., 784 F.3d 454, 464–65 (8th Cir.
2015), which allowed Cottrell, the prevailing party, to recover
the full expert witness fees it actually paid to Stanley under
Rule 26(b)(4)(E)(i) during discovery to take the deposition of
Stanley’s expert witness. Whether Stanley was correct or not
on its own facts, its reasoning does not extend to the case be-
fore us, where the prevailing party seeks to recover full expert
fees for the depositions of his own expert witnesses. This is
Crawford Fitting, except that we address here expert deposi-
tions rather than expert trial testimony. It would be a mistake
to limit Crawford Fitting on that basis. If we held that prevail-
ing parties could recover under Rule 54(d) the full costs of de-
posing their own expert witnesses before trial, but not of call-
ing those expert witnesses to testify live at trial, see Crawford
Fitting, we would create an incentive for parties to offer expert
depositions at trial in lieu of live expert testimony. Nothing in
the text or logic of the rules calls for such a perverse incentive,
and we see no persuasive reason to distinguish this case from
Crawford Fitting.
The judgment of the district court and its award of costs
are AFFIRMED.