In this case, a railroad worker who was diagnosed with lung cancer filed suit under the Federal Employer’s Liability Act (FELA) alleging the railroad had exposed him to asbestos as well as other hazardous materials. The jury awarded $8.6 million, finding the railroad negligent and negligent per se, but it also found the decedent was 62 percent at fault due to his smoking history. Following the return of the verdict, the trial court instructed the jury that because of its finding that the railroad had violated safety regulations, FELA did not allow for a damages reduction based upon the employee’s contributory fault. The jury deliberated again and then returned a verdict of $3.2 million.
After a rather convoluted course, which can be read in the below decision, several issues ended up before the court. One of the issues was whether the trial judge erred by providing the additional instructions on FELA after the jury returned its original verdict, rather than determining whether the amount was against the clear weight of the evidence. Finding no other errors but on this issue, the court ordered a new trial on the issue of damages only.
As the court held: “In our view, the instructions as a whole, which were provided to the jury prior to its initial deliberations, ‘“fairly define[d] the legal issues involved in the case and d[id] not mislead the jury.’” Nye, 347 S.W.3d at 699 (quoting Otis, 850 S.W.2d at 446). In response to the special verdict form, as instructed, the jury found that the total amount of damages to be awarded, “without any deduction for any [contributory] negligence” on the part of Mr. Payne, was $8.6 million. Because the jury found the defendant to be negligent per se, a finding of liability that was not rejected by Judge Wimberly, FELA does not allow for the reduction or apportionment of damages based on contributory negligence. 45 U.S.C. § 53; see Lindsay, 233 U.S. at 49-50. In our view, Judge Wimberly erred by providing additional instructions and inviting the jury to reconsider its initial award, which was based upon a substantially accurate statement of the law. Cf. Shepard v. Grand Trunk W.R.R., No. 92711, 2010 WL 1712316, at *13-14 (Ohio Ct. App. Apr. 29, 2010) (holding that, in a FELA case where the jury found negligence per se, the defendant railroad could not challenge the validity of the verdict through post-verdict discussions indicating that the jury believed the total award would be reduced by the plaintiff’s contributory negligence).”