USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 97-1063
MICHAEL MCGRATH,
Plaintiff - Appellant,
v.
CONSOLIDATED RAIL CORPORATION,
Defendant - Appellee.
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No. 97-1064
MICHAEL MCGRATH,
Plaintiff - Appellee,
v.
CONSOLIDATED RAIL CORPORATION,
Defendant - Appellant.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Godbold,* Senior Circuit Judge,
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and Barbadoro,** District Judge.
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* Of the Eleventh Circuit, sitting by designation.
** Of the District of New Hampshire, sitting by designation.
Alan D. Voos, with whom Collins, Collins & Kantor, P.C. was
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on brief for appellant Michael McGrath.
Leonard F. Zandrow, Jr., with whom Michael B. Flynn and
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Brister & Zandrow, LLP were on brief for appellee Consolidated
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Rail Corporation.
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February 12, 1998
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TORRUELLA, Chief Judge. On June 13, 1995, plaintiff-
TORRUELLA, Chief Judge.
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appellant Michael McGrath ("McGrath") commenced this action for
personal injuries he suffered as an employee of defendant-
appellee Consolidated Rail Corporation ("Conrail"). McGrath
alleges that Conrail was negligent in failing to provide him with
a safe work place pursuant to the Federal Employers' Liability
Act ("FELA"), 45 U.S.C. 51 et seq., and was liable under the
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Federal Boiler Inspection Act ("Boiler Act"), 45 U.S.C. 23,1
for requiring him to work with a locomotive that was in a
defective condition. After a jury trial, the district court
entered judgment in favor of Conrail on both the negligence and
Boiler Act claims.
McGrath appeals on three grounds. Appellant argues
that the trial court erred (1) in allowing into evidence
McGrath's receipt of collateral source benefits; (2) in
submitting to the jury the legal question of whether the
locomotive in question was "in use" for purposes of the Boiler
Act; and (3) in instructing the jury on the Boiler Act claim.
Conrail cross-appeals on the issue of whether the Boiler Act
applies to the facts of this case. We find no abuse of
discretion with respect to the admission of collateral source
evidence. However, the district court erroneously submitted the
"in use" question to the jury. As a matter of law, we find that
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1 Although the Boiler Act was recodified on July 5, 1994, see 49
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U.S.C. 20701, we will refer to 23 because that provision was
in effect at the time of McGrath's injury. In addition, in
charging the jury, the district court applied 23.
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the Boiler Act applies to the instant case. Accordingly, we
affirm the jury verdict for the employer on McGrath's negligence
theory, but vacate and remand the verdict for Conrail on his
Boiler Act claim.
I. BACKGROUND
I. BACKGROUND
On appeal, we summarize the facts in the light most
favorable to the verdict-winner, consistent with record support.
See Wainright Bank & Trust Co. v. Boulos, 89 F.3d 17, 19 (1st
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Cir. 1996). McGrath was a Conrail engineer employed as a
"shifter," or an engineer for short runs, who usually moved
trains between local depots. He was responsible not only for
operating the train, but also for attaching individual cars to
the locomotive. On March 21, 1994, he reported to work at
Conrail's Beacon Park office in Allston, Massachusetts. McGrath
was the engineer on a job identified by Conrail symbol "WABP-11."
The crew that worked WABP-11 consisted of an engineer (McGrath),
a conductor, and a brakeman. The train used to perform WABP-11
was made up of at least one locomotive and several railroad cars.
On March 21, 1994, the WABP-11 was scheduled to service Conrail's
industrial customers in South Boston.
McGrath was assigned to locomotive number 2013, which
was coupled back-to-back with another locomotive. McGrath
approached both locomotives, which had their engines running, and
boarded the second locomotive to cross over into locomotive
number 2013. As soon as he entered the cabin of number 2013,
McGrath started to walk toward the daily inspection card. In the
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cabin, McGrath lost his balance when he stepped on an acorn-
shaped nut. He prevented himself from falling by grabbing the
four-foot high engineer's control stand. Consequently, he
suffered injuries to his shoulder, neck and back. One of
Conrail's defenses at trial was that McGrath was malingering,
i.e., feigning physical disability to avoid work and to continue
receiving disability payments. For purposes of rendering its
verdict, the jury assumed that the accident described above did
occur.
II. DISCUSSION
II. DISCUSSION
A. Collateral Source Evidence
A. Collateral Source Evidence
McGrath argues that the district court committed
reversible error by allowing into evidence his collateral sources
of income, including disability pension payments under the
Railroad Retirement Act and supplemental credit disability
insurance payments on his automobile. Under the collateral
source rule, the plaintiff need not offset his or her recovery
from the defendant by the amount of any benefits received from a
source collateral to the defendant. See Lussier v. Runyon, 50
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F.3d 1103, 1107 (1st Cir. 1995). The rule mitigates the danger
of the jury finding no liability or reducing a damage award "when
it learns that plaintiff's loss is entirely or partially
covered." Moses v. Union Pac. R.R., 64 F.3d 413, 416 (8th Cir.
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1995); see also Tipton v. Socony Mobil Oil Co., 375 U.S. 34, 36-
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37 (1963) (per curiam). However, the rule is not absolute and
courts have carved out exceptions to the collateral source
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doctrine. See Moses, 64 F.3d at 416 (allowing collateral source
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evidence where the plaintiff's case itself has made the existence
of such evidence of probative value); Santa Mar a v. Metro-North
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Commuter R.R., 81 F.3d 265, 273 (2d Cir. 1996) (holding
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collateral source evidence admissible if plaintiff puts financial
status at issue); Simmons v. Hoegh Lines, 784 F.2d 1234, 1236
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(5th Cir. 1986) (finding collateral source evidence admissible
for limited purpose of proving another matter if little
likelihood of prejudice and no strong potential for improper use,
and a careful qualifying jury instruction is given). We review
the trial court's admission of collateral source evidence for
abuse of discretion. See Blinzler v. Marriott Int'l, Inc., 81
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F.3d 1148, 1158 (1st Cir. 1996).
According to McGrath, the Supreme Court's decision in
Eichel v. New York Cent. R.R. Co., 375 U.S. 253 (1963) (per
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curiam), applies to his FELA action and mandates the exclusion of
collateral source evidence in such cases. In Eichel, the Court
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held that evidence of disability payments under the Railroad
Retirement Act was inadmissible due to the fact that the
likelihood of misuse by the jury clearly outweighed the value of
such evidence. See id. at 317. In particular, the Supreme Court
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noted that "[i]nsofar as the evidence bears on the issue of
malingering, there will generally be other evidence having more
probative value and involving less likelihood of prejudice than
the receipt of a disability pension." Id.
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We do not read Eichel as requiring the per se exclusion
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of collateral source evidence in FELA cases. As we noted in
DeMedeiros v. Koehring Co., 709 F.2d 734 (1st Cir. 1983), the
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narrower question in Eichel was simply "whether or not to uphold
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the district court's discretionary ruling." 709 F.2d at 741.
Indeed, although the Supreme Court decided Eichel prior to the
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enactment of the current Federal Rules of Evidence, the analysis
in the Eichel decision "does not appear inconsistent with Rule
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403." Savoie v. Otto Candies, Inc., 692 F.2d 363, 371 n.8 (5th
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Cir. 1982). Rule 403 "confer[s] broad discretion upon the
district court to weigh unfair prejudice against probative
value." 709 F.2d at 741.
In the instant case, we find that the trial judge did
not abuse his discretion in allowing the receipt of collateral
source benefits into evidence under a Rule 403 balancing. As its
motion in limine to admit the collateral source evidence argues,
Conrail offered the evidence of McGrath's disability payments on
the issue of McGrath's credibility. Specifically, Conrail
presented collateral source evidence to show McGrath's lack of
motivation for returning to work. In allowing Conrail to
question McGrath about collateral source evidence, the district
court, on several occasions, issued cautionary instructions to
the jury, advising it to consider the evidence only on the issue
of malingering. In one instance where McGrath's tax return was
admitted into evidence, the court specifically noted that "any
references in there to [collateral] sources of income are not to
reduce any compensation he may receive here or to increase it,
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but only on the issue of his motivation to go back to work . . .
."
In oral argument, McGrath's attorney argued that such
instructions did not cure the defect because Eichel precludes the
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use of such evidence on the precise issue of malingering.
However, we do not believe that the Eichel court established a
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bright-line rule barring the admission of collateral source
evidence on the issue of malingering. The Supreme Court simply
determined that the district court abused its discretion because
the prejudicial impact of the evidence outweighed its probative
value. Here, we come to the opposite conclusion. "If there is
little likelihood of prejudice and no strong potential for
improper use, and a careful qualifying jury instruction is given,
then receipt of compensation benefits may be admissible for the
limited purpose of proving another matter." Simmons v. Hoegh
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Lines, 784 F.2d 1234, 1236 (5th Cir. 1986); see also Phillips v.
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Western Co. of N. Am., 953 F.2d 923, 930 (5th Cir. 1992). We
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find that the district court properly allowed testimony regarding
collateral source income, and thus, we need not reach Conrail's
argument that McGrath failed to preserve the issue on appeal.
McGrath also objects to several questions at trial
about the value of a home he and his wife were planning to build
on a lot in Florida. McGrath interjected a timely objection to a
specific question about the home's value and the district court
sustained it before the witness, McGrath's wife, could respond.
After the objection was sustained, Conrail asked no further
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questions about the lot or the home. Under these circumstances,
we see no reversible error.
B. Applicability of Boiler Act
B. Applicability of Boiler Act
Conrail cross-appeals the district court's orders
denying its motion and renewed motion for judgment as a matter of
law. Conrail argues that, as a matter of law, the Boiler Act
does not apply to McGrath's circumstances because the locomotive
in question was not "in use" for purposes of the Act. The Boiler
Act provides in pertinent part:
It shall be unlawful for any carrier to use
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or permit to be used on its line any
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locomotive unless said locomotive, its
boiler, tender, and all parts and
appurtenances, thereof are in proper
condition and safe to operate in the service
to which the same are put, that the same may
be employed in the active service of such
carrier without unnecessary peril to life or
limb, and unless said locomotive, its boiler,
tender and all parts and appurtenances
thereof have been inspected . . . .
45 U.S.C. 23 (emphasis added). Whether a locomotive is "in
use" under the Act is "a question of law for the trial court to
decide and not a question of fact for the jury." Pinkham v.
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Maine Cent. R.R. Co., 874 F.2d 875, 881 (1st Cir. 1989).
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Absolute liability under the Act arise only if the locomotive in
question is "in use." See Crockett v. Long Island R.R., 65 F.3d
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274, 277 (2d Cir. 1995). We review de novo questions of law.
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See UNUM Corp. v. United States, 130 F.3d 501, 502 (1st Cir.
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1997).
"Congressional intent and the case law construing the
statute clearly excludes those injuries directly resulting from
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the inspection, repair and servicing of railroad equipment
located at a maintenance facility." Angell v. Chesapeake and
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Ohio Ry. Co., 618 F.2d 260, 262 (4th Cir. 1980). In addressing
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the "in use" question, this court in Pinkham observed that "the
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determinative factors are the location of the locomotive at the
time of the injury and the activity of the injured party . . . ."
874 F.2d at 882. A locomotive may still be considered "in use"
although it is motionless. See Crockett, 65 F.3d at 277; see
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also Brady v. Terminal R.R. Ass'n of St. Louis, 303 U.S. 10, 13
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(1938).
The facts of this case do not lend themselves to an
easy answer. Locomotive 2013 was neither being serviced in a
place of repair, nor operating on Conrail's main line. Instead,
the locomotive was idling on a yard track, which is located
within the confines of a railroad yard. Yard tracks are used to
store, inspect, classify and switch locomotives and railroad
cars. In addition, although McGrath was part of a transportation
crew, he was also required, as the engineer, to perform certain
inspection duties before moving the locomotive.
However, we agree with the district court's resolution
of this issue in its order denying Conrail's pre-trial summary
judgment motion. The locomotive in question was not being stored
on the yard track or awaiting removal to the engine house for
repairs. Rather, "locomotive number 2013 was running on the yard
track and ready to move into service." McGrath v. Consolidated
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Rail Corp., 943 F. Supp. 95, 97 (D. Mass. 1996). Furthermore, as
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the district court noted, McGrath's inspection duties were
"'incidental to [the] task of operating the train as an
engineer.'" Id. citing Rivera v. Union Pac. R.R. Co., 868 F.
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Supp. 294, 301 (D. Colo. 1994). We hold that the Boiler Act
applies to the instant case. Accordingly, we need to address
McGrath's grounds for dismissal relating to the Boiler Act.
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C. The Jury Instructions
C. The Jury Instructions
McGrath argues that the district court erred in
submitting to the jury the legal question whether the Boiler Act
applies to the instant case. We review the trial court's
instructions to the jury for abuse of discretion. See United
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States v. Shadduck, 112 F.3d 523, 526 (1st Cir. 1997). The
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district court submitted the following instructions, in pertinent
part, to the jury:
Mr. McGrath claims that the Boiler Act
was violated and that as a consequence of the
violation that was at least one of the causes
of injury to him for which he suffered
damage. So the first thing you want to
consider under the Boiler Act is the question
of whether the Boiler Act applies to him.
The congressional intent and the case law
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construing the Boiler Act excludes from its
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coverage those injuries directly resulting
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from the inspection, repair or servicing of
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railroad equipment located at a maintenance
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facility. These injuries are excluded from
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the Boiler Act because they occur in the
course of functions necessary to discover and
correct the unsafe conditions prohibited by
the Boiler Act.
So the first question under the Boiler
Act is, is Mr. McGrath, and he's got to prove
it by a fair preponderance of the evidence,
is he excluded under what I've just told you,
or is he included, is he able to recover
under the Boiler Act?
Transcript at 627-28 (emphasis added). We reiterate that whether
a locomotive is "in use" is "a question of law for the trial
court to decide and not a question of fact for the jury."
Pinkham, 874 F.2d at 881. However, the instructions above ask
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the jury to decide this legal issue.
In instructing the jury, the district court repeats
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almost verbatim the legal considerations the Fourth Circuit
employed in Angell. Compare jury instructions above (emphasized
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language) with 618 F.2d at 262 ("[c]ongressional intent and the
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case law construing the statute clearly excludes those injuries
directly resulting from the inspection, repair and servicing of
railroad equipment located at a maintenance facility"). However,
in Angell, the court itself resolved the issue rather than
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remanding it for consideration by a jury. That was the proper
course.
In the instant case, the jury rendered a general
verdict for Conrail on McGrath's Boiler Act theory. In reaching
its verdict, the jury may have decided that, as a threshold
matter, the Boiler Act did not apply to the facts of McGrath's
case. In that instance, it did not need to reach the issue of
Conrail's liability under the Act. Alternatively, the jury may
have determined that the Boiler Act did apply but Conrail was not
liable under the Act. From the general verdict, we cannot tell
whether the jury's verdict was based on an improper determination
of the "in use" question. The record does reflect that the jury
did consider this threshold issue. One jury question to the
judge was: "Is there any case law that extends the Boiler Act
exclusion regarding inspection and repair to inspections and
repair outside the maintenance yard?" Under these circumstances,
we must vacate the verdict as to the Boiler Act claim and remand.
See Dillard & Sons Constr., Inc. v. Burnup & Sims Comtec, Inc.,
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51 F.3d 910, 916 (10th Cir. 1995) ("erroneous submission of a
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legal question to a jury compels reversal when the jury returns a
general verdict, creating uncertainty as to whether the jury
relied upon an improper resolution of the legal issue"). Since
we remand for new trial on the Boiler Act theory, we need not
reach McGrath's last ground for reversal, which argued that the
district court erred in instructing the jury on Boiler Act
liability.
III. CONCLUSION
III. CONCLUSION
For the foregoing reasons, we affirm the jury verdict
affirm
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for appellee on McGrath's negligence claim, but with respect to
the jury verdict on the Boiler Act claim, we vacate and remand to
vacate remand
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the district court for proceedings in accordance with this
opinion.
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