U.S. Court of Appeals Rules That Plaintiff’s Objections to Trial Testimony Could Have Been Handled on Cross-Examination

The U.S. Court of Appeals for the Seventh Circuit has affirmed a decision by a federal magistrate judge regarding an injured railroad worker. Chance Kelham, a railroad engineer for CSX Transportation Inc., was operating a mile-long freight train that had two locomotives and 69 empty cars. He was ordered to halt his train briefly on a parallel track to allow another train with a higher priority to pass him. Kelham halted his train.

Problems occurred when a third train, which was also ordered to wait on the parallel track, did not stop and collided with Kelham’s train from behind.

Kelham was injured and sued CSX, claiming it was negligent and was the cause of his injury. He sought compensation under the Federal Employers’ Liability Act (FELA).

At the trial, a mechanical engineer testified for the railroad that the lurch forward of Kelham’s train could not have exceeded seven or eight inches or lasted more than a 1/3 of a second. Testimony was premised on a video taken on another train that was placed in the same location as the one Kelham was driving and moved slowly forward.

CSX conceded that the crash of the trains was caused by the negligence of its employees. The question was whether the lurch forward resulting from the impact of the second train could have caused the injuries of which Kelham complained.

At the trial, Kelham testified that when the lurch occurred, he had just risen from the seat in the locomotive cab and began to walk down the three stairs to the locomotive’s bathroom. The stairwell faced forward, so someone walking down the stairs would be facing the front of the train.

Kelham claimed that as he began to walk down the stairway, the train lurched forward causing him to fall forward, somersaulting down the stairs, causing an injury to his back, which aggravated a previously asymptomatic condition known as spondylolyltic spondylolisthesis, the forward slippage of a spinal vertebrae. He alleged that after the incident he required back surgery.

A biomechanical engineer testified for the railroad that the forward lurch of the locomotive should have pushed Kelham backward rather than forward. In addition, the railroad presented evidence that Kelham’s serious back pain pre-existed the forward lurch of his train. The case was tried before a jury, and the jury found in favor of the CSX, leading to this appeal.

On appeal, Kelham complained that the engineer who testified regarding the train lurch compared the video of Kelham’s train and the comparison train by eye rather than by mathematical calculations, did not measure the height of the camera on the comparison locomotive and did not account for the “bounce and shudder” movement of the train.

Kelham also challenged that testimony of the biomechanical engineer, arguing that the engineer had ignored the train’s bounce and shudder movement and assumed that Kelham had been positioned upright at the time of the incident, while he claimed he was leaning forward.

The appellate court ruled that the trial judge correctly ruled that both of Kelham’s objections could have been explored on cross-examination and that the jury was not required to believe Kelham’s testimony. In addition, the trial judge’s rejection of his objections to admitting the evidence of his history of back problems and unfavorable statements from the depositions of his pre- and post-accident doctors were rejected.

The appeals panel disagreed with Kelham finding that the trial judge did rule correctly. The panel concluded that it was not unreasonable for a jury to find that Kelham had fabricated the claim that he was injured by the lurch, and that the jury was entitled to conclude that the negligence of the railroad that resulted in the collision and ensuing lurch had no causal relation to Kelham’s injuries. Accordingly, the District Court’s decisions were affirmed.

Chance T. Kelham v. CSX Transportation, Inc., No. 16-1544 (U.S. District Court of Appeals for the 7^th Circuit, Oct. 27, 2016).

Kreisman Law Offices has been handling railroad injury cases, construction site injury cases, work-related injury cases and forklift injury cases for individuals and families who have been injured or killed by the negligence of another for more than 40 years, in and around Chicago, Cook County and surrounding areas, including Wilmette, Winnetka, Western Springs, Rosemont, River Forest, Park Forest, Forest Park, Chicago (Lawndale, Back of the Yards, Chinatown, Koreatown, Greek Town, Little Italy, Bucktown, Wrigleyville), Orland Park and Arlington Heights, Ill.