USCA1 Opinion

United States Court of Appeals

For the First Circuit
____________________

No. 96-1134

DAVID D. STEVENS,

Plaintiff, Appellee,

v.

BANGOR AND AROOSTOOK RAILROAD COMPANY,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Eugene W. Beaulieu, U.S. Magistrate Judge]

_____________________

____________________

Before

Torruella, Chief Judge,

___________

Cyr and Lynch, Circuit Judges.

______________

____________________

Jeffrey T. Edwards, with whom Elizabeth J. Wyman and

__________________
__________________
Flaherty, Beliveau & Pachios, Portland,
_____________________________

ME, were on

Preti,
______

brief, for

appellant.
Robert M. Byrne, Jr., with
_____________________
Boston,

whom Thornton Early & Naumes,

_________________________

MA, and Craig J. Rancourt, Biddeford, ME, were on brief,

_________________

for appellee.

____________________

October 9, 1996
____________________

LYNCH,
LYNCH,

Circuit Judge.
Circuit Judge.
______________

David Stevens,

a railway

trackman

with

sixteen years

Aroostook Railroad

accident

on the

Liability

of

service

at

Company, suffered back

job.

Act action

The jury

awarded him

appeals from the verdict

new trial, saying the

the Bangor

injuries from

in his

&

an

Federal Employers'

$450,000.1

The Railroad

and the denial of its motion

for a

evidence showed neither negligence nor

foreseeability and that

certain evidentiary rulings were

in

raises two

weight.

It

exclusion

of

error.

The

argues

it

was

evidence of a

before

trial.

instructing the

Railroad

unfairly

issues

prejudiced

by

cardiac event suffered by

It also

jury that,

argues

that

of

the

plaintiff two weeks

the

while defendant

court erred

in

was responsible

only

for the

aggravation of

jury must find

for plaintiff

injury

by

caused

the

a pre-existing

if it could

condition from

accident.

These health-related

questions

not

resolved

affirm, though with some

condition, the

not separate

that

caused

the

by the

issues require us to address

before now

in

this

Circuit.

We

sympathy for the tribulations faced

by trial counsel.

I.

____________________

1.

The

jury

found

the

Railroad responsible

Stevens' injuries; Stevens responsible for 10%.

-22

for

90%

of

The jury could

reasonably have believed the

facts

to be as follows:

On a winter morning in northern Maine, February 19,

1994, there was

a train derailment

Millinocket Yard

some

tracks,

of the

which

Millinocket Yard is

had

Railroad.

to

be

on the main line

to the

The derailment

tore up

repaired

promptly.

The

an important junction point, and the oil

tank

cars that fuel the local industry travel along its main

line.

David

arrived

at the

foreman.

Stevens,

yard around

7 a.m.

Stevens' job involved

morning he helped repair

After

a trackman

and

machine operator,

at the

request of

his

heavy manual labor, and that

the consequences of the derailment.

clearing away torn rail and scrap metal, Stevens and a

co-worker,

David Ireland, were asked to

get lengths of rail

to repair the damaged track.

The

the

"wreck

lengths

sides,

rail was kept

car."

Different

in the X-198

weights

of rail were piled in the

some on

piled to a

their bases.

The

railcar, known as

of thirty-nine

foot

car,2 some lying on their

rails were

height of about two to three

in disarray,

feet above the base

of

the car.

Their

surface

was

uneven

and

there

were

____________________

2.

The "weight" of a rail is the weight in pounds of a three

foot section.
pound,

and

This car had varying lengths of 100 pound, 112

115 pound

rail, each

different shape and size.

-33

of

which has

a somewhat

irregular gaps between the

the Railroad's

loaded

using

own

pieces of rail.

safety rules,

inappropriate

the

equipment

In

violation of

wreck car

and

had

had

not

been

been

blocked, thus leading to the gaps between the rails.

Stevens' task

wreck

car and

was to climb

position

the rails

onto the rails

so

that his

in the

co-worker,

Ireland, operating a machine called a pettibone, could secure

the rail with the pettibone's tongs.

Stevens first shoveled

snow and ice off the portion of the wreck car where he needed

to

work.

The two men then successfully offloaded six rails,

with Ireland operating the

hand signals.

Then

pettibone in response to Stevens'

Stevens, standing atop the rails

in the

wreck car, reached up for the tongs of the pettibone to guide

it down to the seventh rail.

He slipped and fell.

His right

leg, up

to his

groin, went

twisted

as he fell and felt a

difficulty and great pain,

down a

gap in

the rails.

sharp pain in his back.

he extricated himself.

He

With

Declining

co-workers' offers to take him to the hospital and wanting to

earn the $20 an hour overtime

pay, Stevens continued working

for eighteen more hours.

When he

when he returned

28, unable

pain continued, as

to work on February 25, 1994.

to continue working

the hospital.

when

went home, the

due to the pain,

it did

On February

he went to

He was first diagnosed with lumbar strain, but

physical therapy

did

not improve

-44

his condition,

his

orthopedic

surgeon

degenerative disk

He

has

unable

since been

ordered

an

disease and

in

MRI,

him from physical labor.

showed

some narrowing of

physical

to return to his

which

the disks.

and occupational

job because his

early

therapy,

back pain disables

Jobs in his area of Maine

are few

and far between, particularly once employment requiring heavy

manual

labor is excluded.

Stevens, who is

married and has

children, works sporadically as

about

$75 a

week and

an animal control officer at

earns small

sums as

the owner

of a

delivery truck.

Before Stevens' accident, the Railroad had at times

loaded

fashion.

the rails

cars in

The Railroad had decided even

to switch to

be more

onto transport

a regular

before the accident

this system for the wreck car

efficient.

It would also

tiered

because it would

be safer because it would

be easier for the pettibone operator to grab the rails and so

reduce the need

for a trackman

to climb

onto the rails

guide the pettibone's tongs.

II.

Sufficiency of the Evidence and New Trial Motion

________________________________________________

to

The Federal Employers' Liability Act was enacted in

1908 to provide

railroad workers with

personal injuries suffered

their employers

v.

Gottshall,
_________

as a result of

or fellow workers.

114 S.

Ct.

a federal remedy

2396,

-55

for

the negligence of

Consolidated Rail Corp.

_______________________

2404

(1994);

Robert
______

v.

Consolidated Rail Corp., 832

_________________________

F.2d 3,

5-6 (1st

Cir. 1987)

(citing Atchison T. & S.F. R.R. v. Buell, 480 U.S.

________________________
_____

557, 561

(1987)).

has been

FELA is

a broad

remedial

statute and

liberally construed to effectuate the congressional intent of

protecting

railroad

employees.

Id.
___

(citing

Missouri Pac. R.R., 356 U.S. 326, 330 (1958)).

___________________

for liability under

FELA is low,

Sinkler
_______

The standard

although the statute

not impose absolute liability on employers.

v.

does

Moody v. Boston
_____
______

& Maine Corp., 921 F.2d 1, 3 (1st Cir. 1990).

_____________

A FELA plaintiff must prove the traditional

law

elements

of

negligence

--

duty,

breach,

common

damages,

causation,

and

Specifically,

foreseeability.

he must

Robert, 832
______

show that

F.2d

his employer

at

6.

breached its

duty to maintain a safe workplace, that he was harmed by that

breach, and

duty to

that the harm

maintain

was foreseeable.

safe workplace

does

dangers to be eradicated, but it does

of

those

that can

reasonably be

normal requirements of the job.

Corp., 720 F.2d 221,

_____

U.S. 937 (1984).

The employer's

not

require

all

demand the elimination

avoided

in light

of the

Conway v. Consolidated Rail

______
_________________

223 (1st Cir. 1983), cert. denied, 466

_____________

FELA provides that

railroad employers are

liable for injuries to their employees "resulting in whole or

__

in part" from
________

the employer's

(emphasis added);

negligence.

see also Robert,

45 U.S.C.

832 F.2d at

51

6 ("[U]nder

___ ____ ______

-66

FELA

negligent

employers

cannot

escape

liability

merely

because other causes contribute to the injury.").

Measured against these

standards, the evidence was

sufficient

to impose

liability.

there was no negligence

and no way for

evidence

The Railroad

argues that

on its part causing Stevens

it to foresee that Stevens would

Neither

the challenge

nor the

appeal from

to the

to slip

be injured.

sufficiency of

the denial

of the

the

new trial

motion is well taken.

Stevens was injured when he fell into a gap between

the rails created by their haphazard arrangement in the wreck

car.

The

disarray also

increased the number

of times

the

trackman had to climb atop the rails in the wreck car to help

the pettibone operator,

would fall

thus making it more

and slip into a gap

likely a worker

between the rails.

Although

Stevens had cleared away the ice and snow from the area where

he was working, it was certainly foreseeable

that, given the

uncertain footing

also

underneath, a trackman would fall.

foreseeable that on falling,

and be injured

would have.

he would slip

or suffer greater injuries than

Stevens

It was

into a gap

he otherwise

has proffered more than enough

to meet

his burden.

Subsequent Remedial Measures

____________________________

The Railroad claims that two items of evidence -- a

post-accident

photograph

of a

-77

wreck

car

whose rails

are

arranged in a tiered fashion, and references to comments made

at

a company safety

admitted into

which

meeting following the

evidence in

violation of

accident -- were

Fed. R.

Evid. 407,

prohibits the introduction of a defendant's subsequent

remedial measures.

We doubt that Rule 407 applies at

the

photograph

tiers,3

the

showing a

jury

arrangement of the

which

was

car

told

only

type Stevens

he had worked before

with the

that

all here.

rails

it

had seen on

his accident.

As to

arranged in

depicted

an

other cars

on

The jury was not

informed of the date of the

photograph and was not told that

it portrayed

a subsequent remedial measure.

was properly

admitted to

The photograph

show the Railroad's

past practice

and standard of care.

The

references

jury also

to

did

statements

not know

by

Mr.

that the

Cote,

the

challenged

Railroad's

roadmaster, concerned statements made during

a post-accident

safety

statements were

meeting.

The references

supported by notes

Thomas

Bell.4

The

taken by one

jury

to Cote's

of the Railroad's

never

saw

the

notes,

foremen,

and

the

____________________

3.

The photograph was a fair representation of rails aligned

in a row, same sides up, which Stevens had walked on in other

cars

prior to

the accident.

It

showed a

different, less

dangerous alignment

than the alignment

in the wreck

car on

which he was injured.

4.

The notes said

on supply

that, "Rails still coming in

from Derby

cars a mess rails every which way and Holes in the

floor of car . . . . RNC [Robert N. Cote] mentioned

[time of

-88

references to Cote's statements were admitted for impeachment

purposes only.

the rails

Cote

had testified that he had

on the wreck car

were in disarray at

never stated

the time of

the plaintiff's accident and that he remembered the rails

having been arranged

neatly.

condition of the rails

His later

as

statement about the

at the time of the accident

could be

understood to be to the contrary and was thus fair game.

Thus, because the evidence was not presented to the

jury

directly

or

by

inference

measures, Rule 407 does not apply.

as

subsequent

remedial

Even if Rule 407 applied,

the exception within the rule would also apply:

This rule does

not require the exclusion

of evidence of

subsequent measures

offered

for

proving

another
ownership,

purpose,

when

such

control,

as
or

feasibility of precautionary measures, if

controverted, or impeachment.

This evidence fell

fell well

within the exception.

within the

sound discretion

These

of the

two rulings

trial judge.

See Blinzler v. Marriott Int'l, Inc., 81 F.3d 1148, 1158 (1st

___ ________
____________________

Cir. 1996); Roy v. Star Chopper Co., 584 F.2d 1124, 1134 (1st
___
________________

Cir. 1978), cert. denied, 440 U.S. 916 (1979).

____________

Cardiac Event
_____________

Two

after the

weeks before trial

jury was

November 11, 1995.

and two

impanelled, Stevens was

and a

hospitalized on

Stevens was diagnosed with

____________________

Stevens' accident] as an example."

-99

half weeks

a threatened

anterior septal myocardial

November 14, 1995.

was

infarction5 and

was released

on

The parties agreed that the cardiac event

not caused in any way by Stevens' accident or consequent

injuries.

The Railroad

was

not permitted

Stevens

about his cardiac event or

records

into

examination

evidence.

was

pertinent

The

to

to

cross-examine

to introduce the medical

Railroad

Stevens'

argued

life

that

such

and

work

expectancy.

The

cardiac event

because the Railroad failed

testimony to link

court

excluded all

been speculative

court

also

excluded

and

felt that the evidence would

evidence in

part

understanding "that any independent event

is

not

responsible for

in

the

work expectancy.

unduly prejudicial.

the

about

to proffer expert

it to life expectancy or

Absent such testimony the court

have

evidence

reference

condition could not be considered by [the

The

based

trial

on

its

that the defendant

to

his

health

and

jury] for purposes

of awarding damages."

This latter basis for

erroneous.

on

and

If post-accident health problems

a plaintiff's ability to

arise

the trial court's ruling was

independently

of

work or on

the

have an impact

his life expectancy

accident,

defendant

is

entitled

to adduce evidence of such problems in an effort to

____________________

5.

An impending heart attack was averted by treatment at the

hospital.

-1010

reduce a potential

damages award.

In FELA cases

plaintiff

must

prove

pre-injury

Quinones-Pacheco v.
________________

Cir. 1992).

and

post-injury

earning potential.

American Airlines, 979 F.2d

_________________

1, 6-7 (1st

As the Sixth Circuit held in a FELA case, Harris

______

v. Illinois Cent. R.R., 58 F.3d 1140 (6th Cir. 1995):

___________________

If [plaintiff] had died in 1992 of a

heart attack

unrelated

work,

the

could

recover

to his

period for

fall

at

which

his estate

lost earnings

would have

been cut off at the point of

death.

See
___

Dixon v. International Harvester Co., 754

____________________________________
F.2d 573, 588-90 (5th Cir. 1985).
heart condition would
incapable

of

have rendered

working

similarly, we think it

If his

as

him

carman,

would be error to

allow testimony on his potential earnings

as a carman beyond the point at which his
work as a carman
even if he had
back.

would have had to cease

never injured his leg and

Id. at
___

1144-45; accord
______

F.R.D. 118,

Agosto v.
______

120 (E.D. Pa.

Trusswal Sys. Corp., 142

____________________

1992); Smith v.
_____

Southland Corp.,
_______________

738 F. Supp. 923, 926 (E.D. Pa. 1990).

That

excluding

does

the

not

evidence,

alternative grounds for

evidence is reviewed

F.3d at 1158.

mean

the

trial

particularly

doing so.

judge

in

in the ordinary course,

in

of

his

light

decision to

for abuse of discretion.

Here, the Railroad

erred

exclude

Blinzler, 81
________

commendably concedes that

evidence of unrelated post-accident

health problems without medical

testimony as to their effect

on

expectancy

plaintiff's

speculative.

life and

See, e.g.,
_________

work

would be

Meller v. Heil Co., 745

______
________

unduly

F.2d 1297,

-1111

1303 (10th

use in

Cir.) (excluding evidence of

a wrongful death action in part due to the absence of

medical

foundation for

the

decedent's life expectancy would

drug

the decedent's drug

defendant's

claim that

the

have been diminished by his

use), cert. denied, 467 U.S. 1206 (1984).

____________

The Railroad

says

that

it

testimony,

did not

that

have

the

enough

court

time

denied

its

to develop

motion

such

for

continuance,6 and that the exclusion was therefore error.

Although close,

light of three factors.

was far from

ten

First,

impossible.

received notification

least

we find no abuse

the timing, while difficult,

The Railroad acknowledges

days before

the

expert witness at that time.

medical

physician.

until

(albeit

records,

The

December

trial was

subject

and

to

scheduled

to begin.

starting to look for an

The Railroad was promptly given

it

interviewed

defendant did not begin

4,

that it

of the plaintiff's myocardial event at

Nothing prevented the defendant from

the

of discretion in

effectively

attending

to put on its

giving it

the Thanksgiving

the

over

holiday

two

case

weeks

weekend), to

locate an expert witness.

____________________

6.

The Railroad's request for a continuance was based on its

representation

that

further.

court denied

The

representation
defense all

it

needed

to

investigate

the continuance

and directed plaintiff's

the medical information

records were promptly provided.

the

based on

that

counsel to give the

it had.

The

hospital

No specific request was made

for a continuance in order to locate an expert witness.

-1212

issue

Second,

there is very little evidence establishing

prejudice to the Railroad.

what

a potential

There was no offer of proof as to

cardiologist expert

witness would

say to

link the cardiac event causally to the legal issues.

left not

knowing whether

claim of linkage.

the

steps

in fact,

There is not even a

Railroad first

it took in

there is,

received

any colorable

clear record of when

the hospital

response, although

We are

records or

at oral

what

argument both

counsel attempted to recreate the sequence from memory.

Third,

during the

trial,

well after

it received

notice of the plaintiff's cardiac event, the Railroad entered

into a stipulation based

on mortality tables as to

the life

and work expectancy of

a typical man of plaintiff's

was of average health.

The jury was instructed that it could

consider

the stipulation along with other

face of the

link

the

age who

evidence.

In the

stipulation and the absence of even a proffer to

cardiac

expectancy, it

event

was hardly

to

plaintiff's

an abuse

of

life

and

discretion for

work

the

court to exclude the evidence.

Vocational Testimony
____________________

Similarly, we reject the challenge to the testimony

of

plaintiff's vocational

expert.

The

Railroad says

the

testimony lacked adequate factual basis and complains that it

was sandbagged when, on cross-examination, it learned for the

first

time that

the expert

had updated

her

research just

-1313

before

and

scheduling

defendant, of

during the

order

trial

(and,

in violation

although

Fed. R. Civ.

not

P. 26(e)(1)

of

a pre-trial

mentioned

as well).

by

the

A trial

court has wide discretion in determining the admissibility of

expert testimony, and we will

reverse its decision only when

there

has been a clear

abuse of discretion.

Allied Int'l,
_____________

Inc. v. International Longshoreman's Ass'n., 814 F.2d 32, 40

____
____________________________________

(1st Cir.), cert. denied, 484 U.S. 820 (1987).

____________

The expert's vocational evaluation report was based

on her review

of the plaintiff's

work experience,

they discussed

jobs

a meeting

with the plaintiff

his skills and

available in the area.

The expert

relied upon was

persons

field.

vocational experts

than

rely

review of

testified that the

the sort typically

used by

The Railroad

made no

proffer that

on different

types of

information

did plaintiff's expert.

was adequate.

prior

during which

interests, and her

information she

in her

medical records and

We think

the foundation laid

As

lack

to the

of notice to the

issue within the

expert's last

minute research

Railroad, this is

trial court's discretion.

and the

a trial management

The trial judge

recognized that the expert adhered to the same opinions which

had been timely disclosed

properly

offered

disregard

any

to

to the Railroad.

instruct

information

the

the

-1414

jury

expert

The

that

court quite

it

acquired

should

after

submitting her report.

court up

on this offer and

before continuing

the

The Railroad did not take

ruling that

did not ask

cross-examination.

the violation

for additional time

There was

of the

the trial

no abuse in

pre-trial scheduling

order did not warrant striking the expert's entire testimony.

Jury Instructions
_________________

The Railroad's final claim

improperly

that this

as a

instructed the jury

on the issue

was sufficiently prejudicial, based

whole, to

question,

is that the trial court

warrant a

one of first

reversal

of the

impression for this

of damages and

on the record

judgment.

The

court, is which

side should prevail on this issue in a FELA action when there

is adequate

expert testimony

that an accident

aggravated a

pre-existing condition7 but the jury cannot separate the pain

or disability caused by

the pre-existing condition from that

resulting from

the accident.

tips in

of compensating

favor

We

believe that the

the FELA

balance

plaintiff, and

so

uphold the jury instructions.

Ample evidence

was presented at trial that Stevens

suffered from degenerative disk disease prior to his February

1994 accident.

There

was also testimony

that degenerative

not

problem

____________________

7.

This

case

admissibility

does
of the

involve

expert's

the

testimony if

of

the expert

the
is

unable to ascertain whether the trauma

of the accident would

exacerbate a prior condition of this particular patient.

Rotman v.
______

National R.R. Passenger Corp.,

_____________________________

Cf.
___

No. 95-P-277, 1996

W.L. 528878 (Mass. App. Ct. Sept. 18, 1996).

-1515

disk

disease

presented

aggravation

is

expert

of his

process

testimony

of aging.

that

pre-existing

the

However,

accident

condition.

His

Stevens

caused

an

treating

physician testified

that, while

"there must have

degenerative disk disease present"

was

silent[,] [s]o he did

been some

before the accident,

not feel anything,"

"it

and that the

accident caused him to feel the condition for the first time.

There

was

also

evidence,

however,

that

plaintiff

experienced back pain prior to the accident.

The trial judge instructed the jury as follows:

There is evidence in this

plaintiff

had

case that

a pre-existing

injury or

condition which existed prior to February

19,

1994.

The

railroad is

for damages you find

only liable

to be caused by the

occurrence of February 19, 1994.

find

that

condition

plaintiff's
made

him more

injury than a person in

If

you

pre-existing
susceptible to

good health, the

defendant is responsible for all injuries

suffered by the plaintiff as a

result of

the defendant's negligence, even if those

injuries are greater than would have been

had

suffered by a person in good health under

the same circumstances.
If

you

find

that

defendant

negligently

caused

aggravation

to plaintiff's

pre-existing

condition,

plaintiff

entitled

compensation

for

further

all

is
of

injury

or

to

plaintiff's

damages caused by the incident, including

that

further injury or

you

cannot

separate

disability

caused

condition

from

by
that

aggravation.
the
the

pain

If
or

pre-existing

caused

by

the

occurrence of February 19, 1994, then the

defendant

is

liable

plaintiff's injuries.

-1616

for

all

of

The defendant takes issue

with the last sentence.

However,

the instructions correctly stated the law.

It

is

true

that

as a

defendant's negligence aggravates a

health

condition,

the

defendant

general

matter,

when

plaintiff's pre-existing

is liable

only

for

the

additional increment caused by the negligence and not for the

pain and

impairment that

the plaintiff would

even if the accident had never occurred.

United Arab Shipping Co.,

__________________________

790 F.

Supp.

have suffered

See, e.g., Evans v.

_________ _____

516, 519

(D.N.J.

1992), aff'd,
_____

4 F.3d 207

(3d Cir. 1993);

cf. Shupe v.
___ _____

New
___

York Cent. Sys., 339 F.2d 998, 1000 (7th Cir.), cert. denied,
_______________
____________

381 U.S.

the

937 (1965).

Contrary to the

jury was so instructed here.

of law does not

defendant's premise,

But that general statement

provide a complete response to

the question

of which party prevails when the harm due to the pre-existing

condition is inseparable from the harm due to the accident.

We

tends to

turn first to

negligence

U.S.C.

the FELA, which

but which is

not dispositive.

favor the plaintiff

Section 1 of

damages

the language of

FELA states:

"[Defendant] shall

resulting in

of [defendant,

whole

its agents,

51 (emphasis added).

be liable

or in part
____________

in

from the

or employees]."

45

This language suggests, as the

jury instruction

indicated,

that once

forth credible

evidence of causation --

negligence has

aggravated a

the

pre-existing

plaintiff

puts

that the Railroad's

condition --

the

-1717

defendant

will be liable for damages even if the jury cannot

separate the amount of

harm caused by the accident

from the

amount

of

harm

caused

by

the

However, the

statutory language

instructions

about the appropriate

pre-existing

does

condition.

not provide

explicit

apportionment of damages

when the causes of plaintiff's disability are inseparable.

More

statutory

defenses

purpose:

to tort

meritorious

U.S. 557,

the

helpful is

liability

561 (1987).

and to

number

contributory

negligence

in

of traditional

negligence,

and

prohibited

FELA

through

in

v. Buell, 480
_____

the statute abolished

rejected

favor of

primary

facilitate recovery

"Specifically,

rule,

from

of the

Atchison T. & S.F. R.R.

________________________

servant

themselves

consideration

"to eliminate

cases."

fellow

the

that

employers

contract; a

doctrine

of

from

1939

of

comparative

exempting

amendment

abolished the assumption of risk defense."

Ct.

at

2404.

because of

due to

the

Allowing a

the jury's

defendant

damages

for

the

prevent

escape liability

the disability

condition from that

the

aggravation

determined to be a

to

inability to separate

plaintiff's pre-existing

accident would

Gottshall, 114 S.
_________

plaintiff from

in what

meritorious case.

the

due to

recovering

factfinder

This would

has

defeat the

remedial purpose of the statute.8

____________________

8.

Indeed, FELA and

other federal statutes incorporate the

"eggshell

skull" rule

to

liability

in certain cases.

prevent defendant

from

avoiding

See, e.g., Jordan v. Atchison,

_________ ______
_________

-1818

When

dispositive,

policy,

the

statutory language

"[t]he third

principally

the

resort

policy

implement in adopting the statute."

95-2293, 1996 WL

While

534913, at

we are aware that

federal law,

the

Act

and purpose

of puzzled

Congress

was

courts is

to

seeking

to

Wilson v. Bradlees,
______
________

*4 (1st Cir.

Sept. 25,

FELA interpretation is

is founded

are not

on

common

No.

1996).

a matter of

law

concepts

subject

to explicit statutory

qualifications.

Id.
___

It is

therefore appropriate to look to the Restatement of Torts for

____________________

guidance on the relevant policy issues, as indeed the Supreme

Court and

e.g.,
____

the courts of appeals have done in the past.

Gallick
_______

(1963); Buckley
_______

1346

v. Baltimore & O. R.R.,

_____________________

372 U.S.

v. Metro-North Commuter R.R.,

_________________________

See,
____

108, 120

79 F.3d 1337,

(2d Cir. 1996); Lockard v. Missouri Pac. R.R., 894 F.2d

_______
__________________

299, 305 (8th Cir.), cert. denied, 498 U.S. 847 (1990).
____________

The

discussion

explaining:

Restatement
___________

of

provides some

apportionment

of

assistance

indivisible

in its

damages,

____________________

T. & S.F. Ry., 934

______________

F.2d 225,

case noting that it

is a well-settled principle of

that
cf.
___

Avitia v. Metropolitan Club of Chicago, 49

______
______________________________
(7th Cir.

Act); Doty v.
____

1995)

(same under

Sewall, 908
______

defendants is

harm

results

Fair Labor

F.2d 1053, 1059

under Landrum-Griffin

indivisible

well.

1991) (FELA
tort law

the defendant must take the plaintiff as it finds him);

1227-28

(same

228-29 (9th Cir.

Act).
in

recognized in other

full

areas of

Standards

(1st Cir.

And the

imposing

F.3d 1219,

1990)

principle that
liability

on

federal law

as

See, e.g., Price v. United States Navy, 39 F.3d 1011,

_________ _____
__________________

1018 (9th Cir. 1994) (CERCLA).

-1919

Where

two

or

more

produce such a

causes

single result,

of division on any logical

basis .

. .

combine

to

incapable

or reasonable

the courts have

refused to

make an arbitrary apportionment . . . and

each

of

the

causes

is

charged

with

responsibility for the entire harm.

Restatement (Second) of Torts

_______________________________

(1965).

of

433A(2)

cmt. i,

Thus, a defendant gets the benefit

at

439

of apportionment

harm only if "there is a reasonable basis for determining

the contribution

of each

433A(1)(b), at 434.

whole.

According to

cause to

a single

If not, the defendant

433A,

harm."

Id.
___

is liable for the

both the defendant's negligence

and the

plaintiff's pre-existing

cause of the

whole on both.

intent

entire harm,

But

condition

thus imposing the

this tie is broken by

to implement

policy

are deemed

the

burden of

the

the congressional

benefitting injured

railway

workers.9

An

upholding

additional

the

jury

policy

instruction

Restatement's discussion
___________

argument

may

be

that

found

of the related question

supports

in

the

of who has

____________________

9.

The

comments

illustrations

are primarily taken

tortfeasors.
entire

for

the

above

from cases

quoted

Restatement
___________

involving multiple

However, the Restatement indicates that "[s]uch

___________

liability is

innocent . . . ."

Id.
___

imposed where

some of

the causes

are

433A(2) cmt. i, at 439; cf. id. app.

___ ___

at 140 (1966) (noting that "as to an original injury followed

by negligent treatment,"

the treating

physician "is

only for the aggravation

he has caused").

The

liable

instant case

is closely analogous, and the parallel between aggravation of

a

pre-existing condition

tortfeasors has

and

been drawn

the harm

caused by

by several courts.

multiple

See, e.g.,
__________

Lovely v. Allstate Ins. Co., 658 A.2d 1091, 1092 (Me. 1995).
______
_________________

-2020

the

burden

as

to apportionment

apportionment is possible:10

of

damages

when such

an

The reason for the

placing

the

apportionment

exceptional rule

burden

of

upon

the

proof

as

to

defendant

or

defendants is the injustice of allowing a

proved

wrongdoer

liability . .
defendant
assume

. .

may

the

In such

justly

burden

evidence, or if

be

of

to

escape

a case

the

required

to

producing

that

he is not able to do so,

of bearing the full responsibility.

Id.
___

433B(2)

between

cmt. d, at 444.11

the proved

The

tortfeasor who

comment concludes, "As

has clearly

caused some

harm, and the entirely innocent plaintiff, any hardship . . .

should fall upon the former."

Id.
___

____________________

10.

At

trial,

indicating that

defendant
if the

asked

for

jury

causes of plaintiff's

instruction
injuries were

separable, plaintiff had the burden of proof on the extent to

which the accident caused the aggravation of the pre-existing

condition.

Because

this

case involves

an instruction

indivisible injuries, we need not decide the question

bears

the

burden

condition when the

extent that

to

aggravation

burden

of proving

is undercut

by the

v. Baltimore & O. R.R., 552

____________________
case, it was error

entirety

of damages,

we note

that

statutory scheme,

the

defense.

this

which makes
But cf. Dale
_______ ____

A.2d 1037, 1041 (Pa.

1989) (in

that "if it found

railroad was responsible for the

whether or

those damages in whole

pre-existing

However, to

to instruct jury

the railroad negligent, the

of who

that plaintiff bears

damages,

comparative negligence an affirmative

FELA

of

damages are separable.

the Railroad is contending

the entire
argument

as

on

not its

negligence caused

or in part," because implicit

in the

comparative negligence scheme is the principle that defendant

is only liable to the extent that its negligence causes harm,
whether the other causes are the employee's own negligence or
a pre-existing health condition).

11.

The rule placing the

defendant

has

interpreting

also

burden as to apportionment

been

a similar

adopted

by

federal statute.

at

least one
Maurer
______

on the
court

v. United
______

States, 668 F.2d 98, 100 (2d Cir. 1981) (Public Vessels Act).
______

-2121

The

burden

plaintiff

his

of

primary policy

proving

argument against

apportionment

to

shifting the

defendant

is

that

is in the better position to prove what portion of

injuries was caused by the accident.

LaMoreaux v. Totem
_________
_____

Ocean Trailer Express, Inc., 632 P.2d 539, 545 (Alaska 1981).
___________________________

However,

given

discovery

of

medical

records

and

the

availability

defendant's

place on

of

medical

examinations

doctor, Fed. R. Civ. P. 35,

defendant that burden

of

plaintiff

by

it is not unfair to

and the consequences

of not

meeting it.

We therefore think the better rule, particularly in

light

of FELA's

broad

remedial purposes,

factfinder cannot separate injuries

the

accident

from

those

is

that if

the

caused or exacerbated by

resulting

from

pre-existing

condition, the defendant is liable for all such injuries.12

Affirmed.

____________________

12.

Cf. Varhol
___ ______

v. National R.R. Passenger Corp.,

______________________________

1557, 1564 (7th Cir.

asking

jury

condition

. .

"to

909 F.2d

1990) (upholding use of interrogatories

determine

. resulted

what
from the

could determine that portion, to

______________________________

portion of

[accident], and,
take

determining damages" (emphasis added)).

-2222

[plaintiff's]

it into

if it
_____

account in