Gentry v. Norfolk

IN THE COURT OF APPEALS OF TENNESSEE
FILED
TRABON GENTRY, as the Executor ) C/A NO. 03A01-9610-CV-00341
for the Estate of DONNIE R. ) July 22, 1997
GENTRY, Deceased, )
) Cecil Crowson, Jr.
Plaintiff-Appellant, ) Appellate C ourt Clerk
) APPEAL AS OF RIGHT FROM THE
) HAMILTON COUNTY CIRCUIT COURT
v. )
)
)
NORFOLK SOUTHERN RAILWAY COMPANY,)
) HONORABLE ROBERT M. SUMMITT,
Defendant-Appellee. ) JUDGE
For Appellant For Appellee
B. STEWART JENKINS CLAYTON M. WHITTAKER
ROBERT D. BRADSHAW Foster, Foster, Allen &
Jenkins & Bradshaw, P.C. Durrence
Chattanooga, Tennessee Chattanooga, Tennessee
OPINION
AFFIRMED AND REMANDED Susano, J.
1
This is a suit for damages brought under the Federal
Employers’ Liability Act, 51 U.S.C. § 51, et seq. (FELA), by the
Executor of the Estate of Donnie R. Gentry (Gentry). The
Executor sued Gentry’s employer, Norfolk Southern Railway
Company (Norfolk Southern), alleging that Norfolk Southern’s
negligence had caused Gentry to suffer a fatal heart attack while
on the job. As expressed in answers to interrogatories, the jury
found that Norfolk Southern was negligent; however, it then
concluded that such negligence did not cause Gentry’s death. The
jury thus returned a verdict in favor of Norfolk Southern. The
Executor appealed the trial court’s judgment entered on the
jury’s verdict, raising various issues which substantially
present the following questions for our review:
1. Does the record contain material evidence
to support the jury’s determination that
Norfolk Southern’s negligence did not cause,
in whole or in part, Gentry’s death?
2. Did defense counsel improperly vouch for
the credibility of a witness and make
prejudicial remarks based upon facts outside
the record, thereby impermissibly affecting
the jury’s verdict?
3. Did the trial court err in giving the
jury an instruction regarding purely
emotional injuries?
I. Facts
At the time of his death, Gentry was employed as a
lieutenant with the Norfolk Southern police department. In each
year since 1985, Gentry had undergone an annual physical
examination, as required by the railroad. Norfolk Southern had
designed an evaluation form and procedure to be followed by the
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physicians selected to perform the examinations. Neither the
procedure nor the form provided for inquiry into the employee’s
family history of disease. The results of the yearly
examinations were typically reviewed by Dr. J.P. Salb, Norfolk
Southern’s Director of Medical Services.
In 1987, Gentry was informed by Dr. Salb that his
cholesterol level was 69 points over the recommended maximum
level of 200. Dr. Salb recommended that Gentry observe a low-fat
diet. Following Gentry’s physical in 1988, Dr. Salb recommended
that he lose at least seven pounds, which he had gained since the
last examination. In 1989, Dr. Salb again recommended that
Gentry lose weight. Dr. Salb subsequently discontinued his
practice of writing follow-up letters to the employees, and
Gentry received no further communication from Dr. Salb regarding
the results of his yearly examinations. Gentry continued,
however, to exhibit several risk factors for coronary artery
disease, including high cholesterol and triglyceride levels,
smoking and obesity.
At his examination in July, 1991, Gentry complained of
having suffered chest pain for three or four months. Although
his cholesterol and weight had dropped temporarily in 1990, they
had returned to elevated levels by the time of his 1991 physical.
However, the examining physician, Dr. Nat Swann, noted that the
results of Gentry’s electrocardiogram were normal and apparently
concluded that Gentry’s chest pain was likely the result of
indigestion. Dr. Swann scheduled gall bladder and
gastrointestinal tests, but Gentry did not return to undergo
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those tests. Dr. Swann did not diagnose Gentry as having
coronary artery disease, nor did he discover that Gentry had a
family history of that affliction.
In the months leading up to his death, Gentry continued
to suffer chest pain. His wife expressed her concern that there
could be a problem with his heart, but he assured her that it was
merely indigestion. On June 12, 1992, Gentry suffered a fatal
heart attack while investigating a train derailment. The medical
examiner determined the causes of death to be an acute myocardial
infarction, i.e., blockage of an artery to the heart, and
coronary atherosclerosis, i.e., deposits of cholesterol in the
arteries. He also viewed Gentry’s obesity as a contributing
cause.
The Executor brought suit on behalf of Gentry’s estate,
alleging that Norfolk Southern was negligent in failing to
diagnose Gentry’s coronary artery disease in failing to warn him
of his condition, and in continuing to place him in a stressful
work environment. Following a trial, the jury found that
although Norfolk Southern was negligent, its negligence did not
cause Gentry’s death, in whole or in part.
II. The Federal Employers’ Liability Act
The FELA provides, in pertinent part, that
[e]very common carrier by railroad while
engaging in commerce between any of the
several States... shall be liable in damages
to any person suffering injury while he is
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employed by such carrier in such commerce,
or, in case of the death of such employee, to
his or her personal representative... for
such injury or death resulting in whole or in
part from the negligence of any of the
officers, agents, or employees of such
carrier...
45 U.S.C. § 51. The parties stipulated that at the time of
Gentry’s death: 1) Gentry was an employee of Norfolk Southern; 2)
he was performing duties in the course of his employment; and 3)
Norfolk Southern was a common carrier by railroad, engaged in
interstate commerce. Thus, the issues left for the jury to
determine were whether Norfolk Southern was negligent and whether
that negligence caused, in whole or in part, Gentry’s injuries
and death. As noted earlier, the jury did find that Norfolk
Southern was negligent. Norfolk Southern concedes in its brief
that there was evidence of negligence--on the part of its
physicians--from which the jury could have reached such a
conclusion. Therefore, the central issue on this appeal involves
the question of causation. We must determine whether the record
contains material evidence from which the jury could have
concluded that Norfolk Southern’s negligence did not cause
Gentry’s death.
The United States Supreme Court has stated that the
provisions of the FELA, including those relative to causation,
are to be liberally construed to further Congress’ remedial goal.
Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 114 S. Ct.
2396, 2404, 129 L. Ed. 2d 427 (1994). In Consolidated Rail
Corporation, the Court reaffirmed an earlier holding regarding
causation under the FELA:
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. . .we held in Rogers v. Missouri Pacific R.
Co., 352 U.S. 500, 77 S. Ct. 443, 1 L. Ed. 2d
493 (1957), that a relaxed standard of
causation applies under FELA. We stated that
“[u]nder this statute the test of a jury case
is simply whether the proofs justify with
reason the conclusion that employer
negligence played any part, even the
slightest, in producing the injury or death
for which damages are sought.” Id., at 506,
77 S.Ct., at 448.
Consolidated Rail Corp., 114 S.Ct. at 2404.
III. Standard of Review
The United States Supreme Court has held that a jury’s
determination in a FELA case is entitled to great weight on
appeal:
Only when there is a complete absence of
probative facts to support the conclusion
reached [by the jury] does a reversible error
appear.
Dennis v. Denver & Rio Grande Western R.R. Co., 375 U.S. 208, 84
S. Ct. 291, 293, 11 L. Ed. 2d 256 (1963)(quoting Lavender v. Kurn,
327 U.S. 645, 66 S. Ct. 740, 744, 90 L. Ed. 916 (1946)). In
Lavender, the Court stated that in an FELA case, where the
circumstances evidence a reasonable basis for the jury’s verdict,
an appellate court may not weigh the evidence or assess the
credibility of witnesses and arrive at a contrary conclusion.
Lavender, 66 S.Ct. at 744. The Court further noted that
the appellate court’s function is exhausted
when that evidentiary basis becomes apparent,
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it being immaterial that the court might draw
a contrary inference or feel that another
conclusion is more reasonable.
Id.
IV. Jury’s Finding of No Causation
We have determined that the record does contain
material evidence from which the jury could have concluded that
Norfolk Southern’s negligence did not play any part, “even the
slightest,” in Gentry’s death. For example, there was evidence
that Gentry smoked up to a pack and a half of cigarettes each
day; that Gentry was overweight and did not follow Dr. Salb’s
suggestion that he lose weight; and that he continued to register
a high cholesterol level, despite having been advised to take
steps to lower it. Robert Waggoner of Norfolk Southern testified
that Gentry had told him that he had a problem with his EKG, as
well as high cholesterol, but that he was going to have to
postpone some necessary tests. In addition, the record
indicates that Gentry failed to return to Dr. Swann’s office, or
to see another physician, for the gastrointestinal testing that
Dr. Swann had ordered in response to Gentry’s complaints of chest
pain. Mrs. Gentry testified that she had expressed to Gentry her
concern that his chest pain could have been the result of a heart
problem. Gentry, however, assured her it was not related to his
heart, and he took no further steps to have the problem
diagnosed.
Given the foregoing, we find the jury’s conclusion --
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that Gentry’s death was caused by factors other than Norfolk
Southern’s negligence -- to be supported by the evidence. Where
the record contains an evidentiary basis to support its verdict,
the jury is at liberty to discard any facts that are inconsistent
with its determination. Dennis, 84 S.Ct. at 293; Lavender, 66
S.Ct. at 744. Therefore, any countervailing evidence is
essentially of no consequence on this appeal. Our role is
confined to determining whether the record reflects evidence from
which the jury could have reached the conclusion that it did.
Once such evidence “becomes apparent”, as it has upon our review
of the record, our inquiry into this issue is concluded. Id.
V. The Executor’s Other Issues
We will now address the remaining issues raised by the
Executor. The Executor argues that the trial court should have
granted his motion for a new trial, based upon alleged misconduct
during closing argument by Norfolk Southern’s counsel.
Specifically, the Executor insists that defense counsel
improperly vouched for the credibility of a witness and made
prejudicial remarks to the jury that were based upon facts
outside the record, and that such statements unduly influenced
the jury’s verdict.
The Executor contends that defense counsel’s statement
that the witness Robert Waggoner “is a very honest and forthright
person” violated Disciplinary Rule 7-106(C)(4) of the Code of
Professional Responsibility and was hence improper. That section
provides, in pertinent part, as follows:
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In appearing in a professional capacity
before a tribunal, a lawyer shall not:
* * *
[a]ssert the lawyer’s personal opinion... as
to the credibility of a witness....
Rule 8, Tenn. S. Ct. R., DR 7-106(C)(4). It appears that Norfolk
Southern offered Waggoner’s testimony primarily to show that
Gentry had been aware of his heart problem, and that he had
postponed the scheduled gall bladder and gastrointestinal tests.
The Executor also points out that defense counsel argued that if
the jury believed Waggoner’s testimony, then the jury would be
obligated to return a verdict for Norfolk Southern. He contends
that by vouching for Waggoner’s honesty, defense counsel
improperly reinforced and accredited his testimony, thus
influencing the jury’s verdict.
Following the Executor’s objection to defense counsel’s
comments, the trial court offered this cautionary instruction to
the jury:
whether a witness was telling the truth is
strictly for you, the jury, to decide. You
must ignore references to witnesses as honest
and telling the truth. I will instruct you
on how to judge credibility in my
instructions later.
During its jury charge, the trial court offered additional
instructions regarding the proper assessment of the credibility
of the witnesses.
We believe that any error that may have occurred in
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this regard was corrected by the court’s subsequent instructions
to the jury. Furthermore, when the record is considered as a
whole, it is unlikely that defense counsel’s statements regarding
Waggoner affected the jury’s verdict. Accordingly, we hold that
the trial court did not abuse its discretion in refusing to grant
a new trial on this ground.
The Executor next contends that defense counsel made
highly prejudicial comments to the jury, based upon facts outside
the record, regarding Gentry’s relationship with his severely
retarded son. At the time of his death, Gentry was paying $400
per month to his ex-wife as child support for the benefit of his
son Jeff, who suffered from cerebral palsy and mental
retardation. During his argument on the issue of damages
recoverable for Jeff Gentry’s loss of his father’s financial
support, defense counsel stated that “from the time of the
divorce, Mr. Gentry never went back to see his son, never did.
He never added anything at all.” The Executor contends that
these remarks had the prejudicial effect of creating an
unfavorable impression of Gentry in the minds of the jurors.
Norfolk Southern, on the other hand, contends that the statements
were based upon a reasonable inference to be drawn from the
testimony of Gentry’s ex-wife, who stated that she had only seen
Gentry “in passing” since their divorce.
These statements of defense counsel were made in the
context of Norfolk Southern’s argument that, with regard to the
issue of damages, Gentry’s estate was entitled to recover no more
than $400 a month for the benefit of Jeff Gentry. They were not
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relevant to the question of causation, an element which the jury
concluded the Executor had failed to prove. We do not believe
that the jury’s determination regarding causation was affected by
defense counsel’s comments about Gentry’s relationship with his
son. Furthermore, the record indicates that Gentry’s son lived
with his ex-wife and was completely dependent upon her for his
care. It is a reasonable inference from these living
arrangements that Gentry would have frequently seen his ex-wife
if and when he visited his son. Defense counsel’s remarks,
therefore, were reasonably based upon the ex-wife’s testimony
that she had only seen Gentry “in passing” since their divorce.
In any event, as previously noted, we do not believe that these
comments, even if unsupported by the evidence, affected the
jury’s verdict. Therefore, the trial court did not abuse its
discretion in refusing to award a new trial on that basis.
Finally, the Executor contends that the trial court
erred by instructing the jury regarding emotional injuries, the
zone of danger, and workplace stress under the FELA. The
Executor argues that the instruction was confusing, irrelevant,
and given out of order, and that it therefore improperly affected
the jury’s verdict. We disagree. The instruction contains an
accurate statement of the law. It was warranted under the
circumstances of this case. The Executor’s theory of the case,
as composed by his counsel, was read to the jury by the trial
judge. It included the argument that the physical and mental
stress placed upon Gentry had created an unsafe place to work,
thereby contributing to Gentry’s heart attack and death.
Furthermore, during his closing argument, counsel for the
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Executor told the jury that the stress placed upon Gentry
represented “an important part” of his case. Nevertheless, the
United States Supreme Court has refused to read the FELA to allow
recovery solely for stress in the ordinary course of employment.
See Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 114 S. Ct.
2396, 2412, 129 L. Ed. 2d 427 (1994). Norfolk Southern was thus
entitled to such an instruction, which was both relevant to a
portion of the Executor’s theory of the case and necessary to
ensure that the jury would not erroneously award damages for
workplace stress causing emotional injuries, even if related to
Gentry’s heart attack.
We find that the trial court did not err in giving the
requested instruction on emotional injuries.
VI. Conclusion
Given the foregoing, we hold that the record does
contain material evidence to support the jury’s conclusion that
Norfolk Southern did not cause, “even [in] the slightest,” the
death of Donnie R. Gentry. The Executor’s issues pertaining to
defense counsel’s alleged misconduct and the trial court’s
instructions to the jury are found to be without merit.
Accordingly, the judgment of the trial court is
affirmed. Costs on appeal are assessed against the Appellant and
his surety. This case is remanded to the trial court for the
collection of costs assessed there, pursuant to applicable law.
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__________________________
Charles D. Susano, Jr., J.
CONCUR:
_________________________
Houston M. Goddard, P.J.
_________________________
Herschel P. Franks, J.
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