Michael Waller v. Kansas City Southern Railway Company

Judgment rendered November 26, 2025.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 56,527-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

MICHAEL WALLER Plaintiff-Appellee

versus

KANSAS CITY SOUTHERN Defendant-Appellant
RAILWAY COMPANY

*****

Appealed from the
First Judicial District Court for the
Parish of Caddo, Louisiana
Trial Court No. 625,812

Honorable Ramon Lafitte, Judge

*****

PHELPS DUNBAR LLP Counsel for Appellant
By: A. Paul LeBlanc, Jr.

KNEZEK LAW
By: Elena A. Knezek
L. Bianca Chretien
Danielle A. Boudreaux

MAYER, SMITH & ROBERTS, LLP Counsel for Appellee
By: Ben Marshall, Jr.

ROVEN CAMP, PLLC
By: John D. Roven
Kevin M. Camp

SCOTT CRICHTON LAW, LLC
By: Scott J. Crichton

LAW OFFICES OF MARY WATSON SMITH, LLC
By: Mary Watson Smith

*****

Before STEPHENS, ROBINSON, and ELLENDER, JJ.

STEPHENS, J.,

This appeal arises out of the First Judicial District Court, Parish of

Caddo, State of Louisiana, the Honorable Ramon Lafitte, Judge, presiding.

An 11-day jury trial was held in this action brought by the plaintiff, Michael

Waller, against the defendant, Kansas City Southern Railroad Company

(“KCS”), for injuries he sustained during the course and scope of his

employment with KCS. The exclusive remedy for any injured railroad

worker lies under the Federal Employer’s Liability Act (“FELA”), 45

U.S.C.A. §§ 51-60. After deliberations, the jury rendered its verdict finding

KCS to be 80% at fault and Waller to be 20% at fault and assessing Waller’s

total damages at $5,380,665.06.

Following a post-trial “Motion to Enter Judgment” filed by Waller, the

trial court rendered a final judgment on May 9, 2024, in which the jury’s

determination of 20% fault on the part of Waller was reflected, but the trial

court did not reduce the damage award to Waller by his percentage of fault,

which resulted in the plaintiff being awarded the full sum of $5,380,665.06.

KCS filed a motion for new trial, which was denied by the trial court on

October 18, 2024. Thereafter, KCS filed the instant appeal. For the reasons

set forth below, we amend the trial court’s judgment, and, as amended,

affirm.

FACTS/PROCEDURAL BACKGROUND

On September 11, 2017, Waller, who had been employed for 17 years

as an electrician at KCS’s Shreveport Diesel Repair Shop (the “Shop”),1 was

1
The Shop is where KCS employees maintain and repair locomotives and related
equipment. Rail tracks run directly into the Shop so that locomotives can be driven into
the Shop and components and other equipment removed for reworking and repair.

almost at the end of his work shift. Instead of using the designated locker

room, Waller changed out of his personal protective equipment (“PPE”) and

into his street clothes at his tool locker in the Shop. Waller, unable to slide

his left shoe over his left heel, and with his left foot not properly in his shoe,

walked over to a fan housing2 lying about seven and one-half feet away on

the Shop floor and leaned against it (in preparation to sitting on the fan

housing). When Waller put his weight against the fan housing, it shifted to

its side and pinned Waller’s left foot underneath, crushing his foot where it

met at the ankle and heel.

Waller’s injuries were severe. His heel was lacerated, and he

sustained permanent damage to his left foot, including internal damage to his

large toe. Waller has had surgery to attempt (unsuccessfully) to restructure

his Achilles tendon. He has developed traumatic arthritis in his big toe joint

and hypersensitivity in his heel which prevents him from walking or bearing

any substantial weight on his left leg. Instability has caused Waller to fall

multiple times. One such fall caused him to aggravate a pre-existing injury

to his wrist. He had two surgeries to repair the damage, but full flexibility

could not be restored. Waller suffers from intense pain, numbness, and

swelling and has been diagnosed with Chronic Regional Pain Syndrome.

Waller filed the instant suit against KCS on September 14, 2020,

seeking damages for his injuries based on negligence on the part of KCS,

arising out of, inter alia, the railroad’s alleged failure to follow Occupational

Safety and Health Administration (“OSHA”) regulations for the safe

2
The fan housing is a piece of equipment used for cooling a locomotive engine
which had been removed and placed in the Shop to be worked on. A fan housing weighs
about 3,000 lbs., is 65 inches tall, and about 15 feet long. This particular fan housing had
been placed on the Shop floor in a “V” configuration rather than on its side.
2

operation of overhead cranes. Various pleadings were filed by both parties

thereafter. On April 21, 2023, KCS filed a motion for partial summary

judgment, in which it argued that it had provided Waller with a reasonably

safe workplace; the accident was solely the fault of Waller; and OSHA

regulations did not apply to the accident, as the crane was not attached or

being used at any point near the time of the accident. This motion was

denied by the trial court. On August 17, 2023, the trial court held a hearing

on five motions in limine—one filed by the plaintiff and four by KCS. One

of many prohibitions sought by KCS was that Waller not be allowed to argue

that any violation of an OSHA standard would constitute negligence per se,

a finding which would bar its contributory negligence defense. At the

hearing, Waller’s attorneys indicated that they would not be submitting this

issue to the jury but rather would pursue it post-trial. Thus, the trial court

granted this requested prohibition sought by KCS.

Prior to trial the parties submitted proposed jury instructions. Waller

tried to submit an instruction on negligence per se, which was objected to by

KCS. The trial court sustained the defendant’s objection and deleted the

requested instruction, and the jury was not instructed on negligence per se.

However, over KCS’s objection, the final verdict form did contain an

interrogatory asking the jury to determine whether KCS had violated ASME

B.30.2 § 2-3.3.33 (a standard incorporated into OSHA).4

The 11-day trial began on January 22, 2024. The main theory of

Waller’s case was that the placement of the fan housing in a “V”

3
ASME stands for American Society of Mechanical Engineers.
4
ASME B.30.2 § 2-3.3.3 deals with management responsibility for training “to
promote proficient performance of a crane operator.”
3

configuration created a workplace hazard because the fan housing was less

stable in this configuration than if it had been laid on its side. In presenting

this theory to the jury, Waller relied, inter alia, on violations of KCS’s

workplace rules and regulations regarding the operation of cranes and a

crane operator’s handling of loads through the testimony of Mark Webster

and Carter Hasty. KCS presented evidence that nothing in ASME B.30.2 §

2-3.3.3 addressed how materials transported by a crane were to be placed or

stored after being transported; instead, that particular section solely

addressed training related to the operation of a crane and did not even

specify what that training should include. Waller’s expert, Mark Webster,

who admitted on cross-examination that KCS trains its crane operators and

that KCS was not cited for any regulatory violation due to this incident,

identified two putative violations of ASME B.30.2 § 2-3.3.3, which

concerned KCS’s inability to identify or document, after Waller’s injury, the

personnel involved in moving the fan housing to the Shop.

Trial concluded on February 5, 2024. After being instructed on the

applicable law, the jury deliberated and returned its verdict, which contained

the following factual findings and damages award:

• KCS was negligent and its negligence was a cause of Waller’s
injuries;
• KCS violated ASME B 30.2 § 2-3.3.3, and this violation was a
cause of Waller’s injuries;
• Waller was negligent, and his negligence was a cause of his
injuries;
• KCS was 80% at fault, and Waller was 20% at fault; and
• Special damages in the amount of $1,440,655.06, and general
damages in the amount of $3,940.000.00, for a total award of
$5,380,655.06.

As noted above, the jury verdict form contained an interrogatory

regarding whether KCS had violated ASME B.30.2 § 2-3.3.3. The jury

4

instructions did not include one on negligence per se; instead, the jury was

instructed that it was allowed to assign fault to Waller if it found his conduct

to be negligent, even if it had determined there had been a violation of

ASME B.30.2 § 2-3.3.3.

Waller then moved for entry of a final judgment on the verdict and

asked the trial court to adjudicate an issue that had not been submitted to the

jury, i.e., whether ASME B.30.2 § 2-3.3.3 was a safety statute, the violation

of which would preclude KCS from asserting the defense of contributory

(comparative) negligence (and could, depending on the judge’s interpretation

of applicable federal law, result in no reduction of the damages awarded to

Waller by the jury based on the percentage of fault assigned to him by the

jury). KCS filed an opposition to the motion, but after a hearing, Waller’s

motion was granted by the trial court, and final judgment awarding Waller

damages in the amount of $5,380,655.06 unreduced by the 20% comparative

fault assessed by the jury to Waller was rendered by the trial court on May 9,

2024.

A motion for new trial filed by KCS was denied by the trial court on

October 18, 2024. This appeal ensued.

DISCUSSION

(1) The trial court erred in denying KCS’s motion for summary
judgment because there was insufficient evidence of negligence
on its part.

According to KCS, the trial court erred in denying its second motion

for summary judgment. KCS urges that it is entitled to a de novo review of

the entire record to determine whether it is entitled to judgment in its favor

as a matter of law on this issue, citing Hall v. Folger Coffee Co., 03-1734

(La. 4/14/04), 874 So. 2d 90. According to KCS, no reasonable juror could
5

have found that KCS failed to provide Waller with a reasonably safe

workplace.

Waller argues that appellate review of the trial court’s denial of KCS’s

motion for summary judgment is foreclosed and notes that after trial on the

merits, the de novo standard applicable pretrial is no longer applicable; the

issue is now reviewed under the manifest error standard applicable to the full

record. According to Waller, the record establishes that KCS violated its

own safety rules and the recognized standards of crane safety, which

provides more than a reasonable basis for the jury’s finding that the hazard

was plainly foreseeable.

We agree with Waller that appellate review of the trial court’s denial

of summary judgment is improper after a full trial on the merits. See, Hood

v. Cotter, 08-0215, p. 7 (La. 12/2/08), 5 So. 3d 819, 823. At this juncture,

this Court is not precluded from considering the issues raised by KCS’s

argument, but they are to be considered in view of the evidence presented at

trial, and under the proper standard of review, which is set forth below.

FELA generally provides the exclusive federal tort remedy for

railroad employees seeking to recover for personal injury sustained in the

course of their employment. Norfolk Southern Railway Co. v. Sorrell, 549

U.S. 158, 165, 127 S. Ct. 799, 166 L. Ed. 2d 638 (2007); Erie Railroad Co.

v. Winfield, 244 U.S. 170, 172, 37 S. Ct. 556, 61 L. Ed. 1047 (1917). FELA

was enacted in response to the dangers of working for the railroad and the

high rate of injuries among railroad employees. Consolidated Rail Corp. v.

Gottshall, 512 U.S. 532, 542-43, 114 S. Ct. 2396, 129 L. Ed. 2d 427 (1994);

Lynch v. Northeast Regional Commuter R.R. Corp., 700 F. 3d 906 (7th Cir.

2012).
6

A railroad is charged with providing a reasonably safe work

environment for its employees. Urie v. Thompson, 337 U.S. 163, 179, n. 16,

69 S. Ct. 1018, 93 L. Ed. 1282 (1949); Huffman v. Union Pacific R.R., 675 F.

3d 412 (5th Cir. 2012), cert. denied, 586 U.S. 1086, 133 S. Ct. 840, 184 L.

Ed. 2d 653 (2013). “FELA’s language is straightforward: Railroads are

made answerable in damages for an employee’s injury or death resulting in

whole or in part from [carrier] negligence.” CSX Transportation Inc. v.

McBride, 564 U.S. 685, 703, 131 S. Ct. 2630, 2643, 180 L. Ed. 2d 637

(2011). Negligence within the meaning of FELA exists if the defendant

railroad “knew or by the exercise of due care should have known” that its

conduct was “inadequate to protect [the plaintiff] and similarly situated

employees.” Urie, 337 U.S. at 178, 69 S. Ct. at 1018.

The initial inquiry is whether the carrier failed to observe that degree

of care “which people of ordinary prudence and sagacity would use under

the same or similar circumstances.” McBride, supra, citing Gallick v.

Baltimore & Ohio R.R. Co., 372 U.S. 108, 117, 83 S. Ct. 659, 9 L. Ed. 2d

618 (1963). The railroad’s duties are measured by what is reasonably

foreseeable under like circumstances. If one has no reasonable ground to

anticipate that a particular condition would or might result in a mishap and

injury, then that party is not required to do anything to correct the condition.

McBride, supra; Gallick, 372 U.S. at 118, n. 7, 83 S. Ct. 659. If negligence

is proved and is shown to have played any part, even the slightest in

producing the injury, Rogers v. Missouri Pacific R.R. Co., 352 U.S. 500, 77

S. Ct. 443, 1 L. Ed. 2d 493 (1957), then the carrier is answerable in damages

even if “the extent of the [injury] or the manner in which it occurred was not

probable or foreseeable.” McBride, 564 U.S. at 703-04, 131 S. Ct. at 2643;
7

Gallick, 372 U.S. at 120-121, 83 S. Ct. 659. The standard of care for both

employer and employee is ordinary prudence under the circumstances.

Huffman, 675 F. 3d at 418; Gautreaux v. Scurlock Marine, Inc., 107 F. 3d

331, 338-39 (5th Cir. 1997).

Determining liability under FELA is a federal question. Sinkler v.

Missouri Pacific R.R. Co., 356 U.S. 326, 78 S. Ct. 758, 2 L. Ed. 2d 799

(1958); Bodenheimer v. New Orleans Public Belt, 02-0441 (La. App. 4 Cir.

5/14/03), 845 So. 2d 1279, writ granted in part on other grounds, 03-1855

(La. 11/14/03), 860 So. 2d 534. Although state courts have concurrent

jurisdiction pursuant to 45 U.S.C. § 56, federal substantive law must be

applied. Monessen Southwestern Railway Co. v. Morgan, 486 U.S. 330, 108

S. Ct. 1837, 100 L. Ed. 2d 349 (1988); Harris v. Kansas City Southern

Railway Co., 55,764 (La. App. 2 Cir. 7/17/24), 399 So. 3d 532, writ denied,

24-01041 (La. 11/14/24), 396 So. 3d 63; Broussard v. Union Pacific

Railroad Co., 29,768 (La. App. 2 Cir. 8/28/97), 700 So. 2d 542, writ denied,

97-2414 (La. 12/12/97), 704 So. 2d 1202; Bodenheimer, supra. However,

state rules of procedure apply in state court. St. Louis Southwestern. Ry. Co.

v. Dickerson, 470 U.S. 409, 105 S. Ct. 1347, 84 L. Ed. 2d 303 (1985);

Harris, supra.

Regarding the standard of review applicable to a jury’s finding of

negligence under FELA, an appellate court may not reverse findings of fact

in a FELA case unless there is a complete absence of probative facts to

support the conclusions reached by the fact-finder. Id.; Richardson v.

Kansas City Southern Ry. Co., 31,735 (La. App. 2 Cir. 4/1/99), 731 So. 2d

1017, writ denied, 99-1267 (La. 6/18/99), 745 So. 2d 607; Broussard,

29,769, p. 10, 700 So. 2d at 548. As stated by the Supreme Court:
8

[W]here … there is an evidentiary basis for the jury’s verdict,
the jury is free to discard or disbelieve whatever facts are
inconsistent with its conclusion. And the appellate court’s
function is exhausted when the evidentiary basis becomes
apparent, it being immaterial that the court might draw a
contrary inference or feel that another conclusion is more
reasonable.

Lavender v. Kurn, 327 U.S. 645, 653, 66 S. Ct. 740, 744, 90 L. Ed. 916

(1946); Lang v. Texas & Pacific Ry. Co., 624 F. 2d 1275, 1278 (5th Cir.

1980); Broussard, supra.

In FELA cases, courts are not free to reweigh the evidence and set

aside the jury verdict merely because the jury could have drawn different

inferences or conclusions or because judges feel that other results are more

reasonable. Tennant v. Peoria & Pekin Union Ry. Co., 321 U.S. 29, 35, 64 S.

Ct. 409, 412, 88 L. Ed. 520 (1944); Heater v. Chesapeake & Ohio Ry. Co.,

497 F. 2d 1243, 1247 (7th Cir. 1974), cert. denied, 419 U.S. 1013, 95 S. Ct.

333, 42 L. Ed. 2d 287 (1974).

We have examined the testimony and evidence presented at trial and

find that there is not a “complete absence of any probative facts” to support

the jury’s factual conclusion that KCS was negligent and that its negligence

played a part in causing Waller’s injury. See, Harris, supra; Richardson,

supra.

Waller’s career-ending injury occurred in KCS’s diesel repair shop

when his left foot was crushed by a 3,000-lb. “V” shaped fan housing that

tipped over when he leaned against it to put his shoe on. This heavy

locomotive component had been placed by another KCS employee 90 inches

from Waller’s tool locker. The identity of the employee who placed the fan

housing in that position rather than on its side was never ascertained by KCS

management. According to Jeri Wright, the KCS claims agent who
9

investigated the accident, the only person she interviewed in connection with

the incident was Waller himself; she did not talk with any other crew

members working on Locomotive 2826, nor did she try to determine how

long the fan housing had been in place or whether there had been a job

briefing.

Waller testified that he utilized his tool locker throughout his eight-

hour shifts, not just to change into and out of PPE, but for access to and

storage of tools and blueprints needed for his job. He stated that other

employees with tool lockers on the shop floor did so as well. He further

testified that at the time he was injured, there was no rule that required him

to change in the west locker room. There was no “one” designated area for

employees to change into and out of their PPE and work boots. He and

other employees had been changing their boots at the tool lockers for about

ten years. Additionally, there was no designated walkway for them to enter

the diesel shop; there were three live rails or tracks between the shop and the

parking lot.

Mark Webster, an expert in forensic engineering who testified for the

plaintiff, related that he is a mechanical engineer whose specialization is in

engineering used in accident investigations. He has 13 patents in materials

handling, including several in lifting systems. Webster is a part of several

professional organizations, including ASME, and has been involved with the

committees which oversee and promulgate standards.

Webster testified that the ASME standards are applicable to all

industries. Specifically, OSHA has adopted and incorporated the B.30.2

standard as a part thereof. He then discussed Subsection 2-3.3.3 and opined

that, in light of KCS’s responses to Waller’s “Requests for Admissions,”
10

KCS failed to meet its responsibilities as an employer as it could not

determine who made the lift that placed the fan housing as it had no

documentation; had no evidence that it provided training to persons who

would operate cranes; had no evidence that persons who moved crane loads

were provided with written and practical examinations regarding said crane

training; and had no certificates or records indicating such training.

Webster also testified that the process of a crane lift does not end when

the load touches the ground. Instead, it ends after the load has been secured

and the lifting equipment, chains, slings, etc., have been removed.

According to Webster, that should not occur until the load has been secured.

Webster further stated that the fan housing was unstable in the position it had

been left; it could have been blocked, secured, or put on its side. Webster

opined “with a reasonable degree of scientific certainty” that allowing the

fan housing to stand on its “V,” unsupported, unshackled, and unblocked,

was unreasonable. The options available were to lay the component down,

block, crib, or jack it, or put a warning sign up. KCS did nothing, stated

Webster.

Excerpts of Casey Hall’s video deposition were played for the jury.

Hall is the safety manager for the railroad in Shreveport. He stated that he is

no longer responsible for training but is now a frontline manager—the safety

department and training department are now separated, something that

happened around 2015 or 2016. The only person he recalls speaking with

about Waller’s accident is Ms. Wright. He didn’t speak with the crew in the

overhaul department, including the foreman or supervisor, to find out who

was responsible for moving the fan housing or who had left it unattended. It

11

was Hall’s opinion that the housing was secured by gravity until it was acted

upon by an “outside force”, i.e., Waller.

Hall confirmed that all KCS employees are governed by the KCS

safety rules—they are given a copy and are expected to know them. They

are trained and tested on them. Employees can be disciplined for violating

the safety rules. Hall stated that using a crane to move heavy equipment is a

frequent part of their daily work, and rules must be strictly observed when

heavy items are moved. In this case, they don’t know whether the fan

housing was moved or set down by someone who was qualified or trained

because they don’t know who moved it. He doesn’t know either way

because he doesn’t have any evidence to support it “either way.” When

asked whether he knew there wasn’t a manual for the particular crane

involved, Hall’s response was that he was made aware of that fact “while

talking to our company counsel.”

Hall admitted that KCS has a rule requiring that one of the ground

person’s responsibilities is to confirm that a load is resting securely before

removing a sling or lifting mechanism and that the fan housing involved in

Waller’s accident was left unattended before being secured. He confirmed

that no task, including a crane movement, is to be commenced until the

involved employees are fully aware of potential hazards and have a plan to

proceed safely, then admitted that he doesn’t know whether such a briefing

was done prior to the fan housing being moved and set down near Waller’s

tool locker.

Excerpts of Jonathan Harris’ video deposition were played for the jury.

Harris testified that he started at KCS at the same time that Waller did; both

men began as laborers. After working as a machinist, Harris became a shift
12

foreman. Harris stated that he has always worked with locomotives at the

diesel facility. In his supervisory position, Harris noted that he observed

Waller to be a good, safe, and cooperative worker. At the time of Waller’s

injury, there were overhaul jobs going on in the back, and they were being

supervised by managers. Cranes were being used to pull the heavy

components out of the locomotives being redone, such as the fan hatches

(housings), engines, generators, and radiators.

Harris stated that he wasn’t involved in the lift of the fan housing that

injured Waller. He has seen fan hatches placed on the floor standing on

three points, and he has seen them on their sides. Placement, whether to put

up straight up “on the points” or tilted to the side, is up to each crane

operator.

Portions of the videotaped deposition of James Koske were played for

the jury as well. Koske is still employed with the railroad, but he noted that

it is no longer KCS; the railroad’s name is now Canadian Pacific Kansas

City or CPKC.5 He is now shop director, although when he started out with

the railroad in 2007, he started out as a journeyman electrician. He worked

with Waller when he started and “picked up a few things from Mr. Waller

that helped me along my way.”

Prior to Waller’s accident, he had not seen any rules, regulations, or

directives concerning permitted or prohibited entry or exit doors to be used

by employees when accessing or exiting the Shreveport diesel shop.

According to Koske, prior to Waller’s accident, employees were free to

change into and out of their street shoes in a locker room. They could then

5
However, the railroad will still be referred to as KCS throughout this opinion.
13

enter or exit the diesel shop from several entrances and exits. After Waller’s

accident, Koske changed that. Koske stated that he put out a Director’s

General Circular #13 on the day following Waller’s accident on that issue.

Koske identified the “Manager’s Report of Employee Injury or Illness”

filled out by the manager on duty at the time of Waller’s incident, and

conceded that it contained two inaccuracies: it answers “N/A” to the

question of whether equipment was involved and “N/A” to the name of the

person making mechanical inspection, date, and time. Koske acknowledged

that the incident occurred as a result of a locomotive component falling on

an employee’s foot. To his knowledge, Waller was not brought up on

disciplinary charges in connection with the accident.

Koske related that he was not aware of the identities of anyone

involved in moving the fan housing on which Waller was injured, nor is he

aware of any documents containing this information. To his knowledge,

there was no job briefing prior to that crane lift. Koske was unable to say

“either way.” Koske “supposed” that had there been an attempt to determine

who was working on that day at that time, someone could have looked at the

duty roster for those days to figure out who had been working overhaul

around the time of the lift.

In his excerpted video deposition testimony, Tyler Goss stated that he

was the “de facto” supervisor in the overhaul area of the diesel shop and

responsible for anyone working in that area, but was not on duty at the time

of Waller’s injury. He received an email informing him of the accident early

the next morning and forwarded it to Ms. Wright. Goss testified that he did

not interview any of the persons working in overhaul or anyone who

otherwise might have witnessed the accident. He stated that he did not
14

direct the placement of the fan hatch, which was placed after its removal

from Locomotive 2826, although it is possible he had input or involvement

in the decision as to when it was removed and its possible placement. He

just had no “recall specifically” nor did he remember a job briefing

“specifically” regarding the removal of the fan hatch from that locomotive.

Regarding employees training for the operation of cranes, Goss

testified that they received “on the job” training, a process that was neither

formalized nor documented.

Carter Hasty testified that he is a journeyman electrician at KCS. He

also has a leadership position with the local union for electricians; there are

other crafts members at the diesel shop as well. Hasty stated that at the time

of Waller’s accident, a few of the senior employees, including Waller, had

tool lockers right by the door to the parking lot. There is a paved walkway

from the parking lot to the shop. Back then, there was no designated path

for employees to use to get into the shop. Additionally, there was no

prohibition against employees coming into or leaving work in their street

shoes—this was something that was commonly done. According to Hasty,

people were allowed to enter through various entry points in their street

shoes.

Hasty further testified that besides the locker room, there were other

places where people changed, such as the overhaul area and at the lockers

underneath the ramps. “Way back” ago they had lockers in the middle of the

shop and some men would change there. According to Hasty, fan housings

were put “anywhere” in the shop they could set them. Whether a housing

would be set on its side or in the V-formation was up to the employee who

placed it.
15

Prior to Waller’s accident, regarding the training they received to

operate cranes, Hasty stated that they got on-the-job training and he recalls

taking a course in 2004 or 2005 from Roger Ferron, who came down from

Canada. KCS also trained them on the General Code of Operating Rules

and KCS’s Safety Rules. On cross-examination, Hasty clarified that the tool

lockers were not a designated area for changing, nor was the overhaul area.

On redirect, Hasty reiterated that there was no requirement that people had

to use the locker room or that employees had to wear their PPE boots when

they left. Instead, people walked through the shop area in their street shoes

to change into their boots for their shift and changed out of their boots into

their street shoes to leave once work was finished.

Ms. Wright stated that she didn’t talk to Carl Shoemake, Koske, or

Hall, or any other members from the crew working on Locomotive 2826.

She also did not try to determine who had put the fan housing in its place,

how long it had been there, whether there had been a job briefing prior to its

placement, etc. at the time of the incident. According to Ms. Wright, “Just

because [the fan housing] was tilted or not tilted, right, doesn’t necessarily

mean that a crane was involved[.] As far as we were all concerned, there

was no crane involvement.”

Roger Ferron testified for KCS. Ferron, a certified health and safety

instructor in both Canada and the United States, stated that he has written

many training programs, including ones for crane safety that are tailored to

specific types of cranes. He identified the crane depicted in a photograph of

the KCS diesel shop as an overhead or Gantry crane. Ferron stated that he

provides training for KCS’s Shreveport engineering and mechanical

department employees and has done so since around 2000. He has included
16

crane safety training classes on a rotating schedule of every third year. This

training includes lifting capacity, how to calculate a lift based on the weight

and shape of the load, and selection and use of proper attachment equipment.

Ferron explained to the jury that “rigging” is the use of attachments to

connect the load to the crane to be safely lifted and moved. A load could be

equipment or material, stuff in a barrel or crate or on a pallet, or heavy tools,

etc.

Ferron testified that his training is in classroom format; he does a

PowerPoint presentation, then together he and the trainees go through the

different steps involved in a lift. At that time, the trainees take part in an

exercise in which they perform calculations to determine how to safely hook

up certain things. The final activity is a written test. Ferron noted that there

is always a sign-in sheet and test involved in each training session, and all

participants must “pass” the test. According to Ferron, the sign-in sheets and

tests are turned over to “whoever is responsible for collecting it” at KCS.

He does not keep them as they are not his—the presentations he prepares for

employers become their property. The training he prepared for KCS

specifically included training for the Gantry crane, which is a “one-person”

operation.

Ferron also stated that the Crane Institute of America also did a three-

day operator training course in Shreveport. Ferron took part as a participant

in this program (to update his credentials). He testified that there were also

KCS employees who took this training. He trained 100% of the employees

in their engineering department at KCS’s request. In 2003, he taught a class

called “Crane and Sling Training” which he repeated in 2006 and 2009. He

17

thinks his last training at the Shreveport yard was the end of 2016 or the

beginning of 2017.

Ferron agreed that loads must be properly blocked prior to being

unhooked and unslung. He noted that management took the same training as

the employees. Ferron further observed that under OSHA, there are special

obligations for management. Specifically, management has the

responsibility of documenting employee training and determining employee

competence. Companies have to train, test, and certify employees who use

cranes or lifts. Ferron stated that having job briefings is part of the process.

Justin Gorman testified that he has worked for KCS since 2013. He

started as an equipment mechanic working in the diesel department, but

since 2018 has worked in the engineering department. When he worked on

locomotives, at the beginning of every shift they had a safety meeting and

job briefing. Gorman stated that he went through the general rules and KCS

safety training as well as the crane training, which included PPE. According

to Gorman, whenever he put down a fan housing, it was in the V-formation

because he felt that was the more stable position. Gorman testified that he

was not a part of the crew that pulled the fan housing out of Locomotive

2826, and he did not place it near Waller’s tool locker on September 11,

2017. On cross-examination, Gorman acknowledged that there is not a rule

as to how a fan housing should be put down on the shop floor.

Both Hall and Koske testified in person for the defense. Hall’s

testimony related to a test he performed on the fan housing to determine how

much weight or pressure it would take to tip it over when it was in the V-

formation; he told the jury the fan housing tipped over when he applied body

weight pressure to it. Koske testified that prior to Waller’s accident, he was
18

unaware that employees were changing into and out of their PPE in work

areas of the repair shop, which was the main reason he issued the director’s

circular preventing that after Waller’s injury. He told the jury that Waller

could have been cited for a disciplinary infraction after his accident for

being in a work area without his proper PPE on, but no citation was issued.

As the above evidence shows, there is a rational basis which supports

the jury’s finding of negligence on the part of KCS. When the plaintiff

rested, KCS moved for a directed verdict, which the trial court denied. The

trial court’s reasons were succinct and this Court surmises form part of what

caused the jury to find KCS to be culpable in this matter.

[There was] no evidence that Mr. Waller used the crane to place
the housing where it was. In fact, no evidence of who used the
crane to place it there, no documentation of it or anything as far
as that [goes was ever given by KCS]. In connection with the
requirement of the PPE, it seems to me, from all accounts, there
was a requirement but it seemed to be very relaxed. People
were changing into their…everyday clothes to leave work
wherever it was convenient.

This assignment of error is meritless.

(2) The trial court erred in modifying the jury’s verdict and
refusing to reduce the amount of damages awarded to Waller
by the percentage of fault assessed to him by the jury.

In this assignment of error, KCS challenges the negligence per se

claim of Waller recognized by the trial court in its final judgment in its

modification of the damage award when it did not reduce the damage award

by the percentage of fault assessed to Waller by the jury based on its legally

flawed determination that ASME B.30.2 § 2-3.3.3 is a safety statute within

the meaning of 45 U.S.C. § 53. According to KCS, Waller’s negligence per

se claim can only be upheld if the facts and law support a negligence per se

claim premised upon violation of this particular regulation. KCS urges that

19

there is neither legal nor factual support for the judgment in this case, which

nullified the jury’s allocation of fault between KCS and Waller and resulted

in an award of monetary damages to Waller of 20% more than the jury

determined as a factual matter was appropriate.

KCS also argues that the trial court’s judgment modified the jury’s

verdict, which is an error of law separate and distinct from the trial court’s

determination that ASME B.30.2 § 2-3.3.3 was a safety statute within the

intendment of 45 U.S.C. § 53. To the extent not resolved by a pretrial

exception or summary judgment, the applicable law pertaining to all triable

issues must be included in the jury instructions and interrogatories. The jury

received no instruction on either negligence per se or the effect its

application would have on the jury’s allocation of fault.

The jury was given the task of determining whether KCS had violated

ASME B.30.2 § 2-3.3.3, then instructed that violation of this regulation was

only one of multiple grounds it could consider in determining KCS’s

negligence. Thereafter, it was instructed on the principles of comparative

negligence, but not regarding negligence per se, nor was the jury told that if

it found that KCS had violated the “federal regulation” there would be any

consequence other than facilitating a finding of negligence. Thus, the jury

was instructed in the law applicable to a case in which no negligence per se

claim was presented. Accordingly, the jury returned its verdict, consistent

with its instructions, finding that KCS’s negligence was due, in part, to a

violation of ASME B.30.2 § 2-3.3.3, and assigning fault to both KCS and

Waller for Waller’s injuries.

According to KCS, absent some internal inconsistency in the verdict

itself, it is legal error to modify or revise a jury’s verdict when rendering
20

judgment on that verdict. Thus, the trial court’s judgment (for this and other

reasons) should be amended to reduce the damages award by at least 20%

(as the next assignment of error is KCS’s claim that this is too low for

Waller’s fault allocation) as per the jury’s verdict.

On the other hand, Waller urges that by answering Special Question

No. 2 on the verdict form, the jury found that KCS violated the mandatary

crane regulations found in OSHA’s B.30.2 and that this violation was a legal

cause of Waller’s injury. Waller asserts that, “consistent with the [attorneys’]

agreement at the pretrial hearing, no one argued the ultimate legal

significance of the jury’s answers to special questions.” Waller further

contends that “[i]t was not until entry of judgment that KCS first claimed

that the jury should have been so informed.” According to Waller,

“[i]rrespective of whether the court was correct in its legal application of §

53, it did not arbitrarily ‘modify’ the jury’s findings.”

The determination of whether OSHA regulations apply and whether

OSHA is a safety statute under 45 U.S.C. § 53 are questions of law.

However, it is unnecessary for this Court to determine whether the trial court

erred in declaring that this OSHA regulation was a safety statute under 45

U.S.C. § 53. We find that the trial court erred in failing to give proper weight

to the jury’s verdict in this matter by making a substantive change to its

verdict.

Trial testimony established that KCS’s safety rules, in addition to

applicable OSHA standards, required that personnel were to assure that loads

were “resting securely.” Safety Mgr. Casey Hall testified that he recreated

the tip over, consulted the rules to uncover the root cause of the incident, and

published a safety alert for distribution in response to the event. Hall agreed
21

that the diesel shop had blocks and cribbing available to secure components,

yet none were used to secure the fan housing that fell on Waller. Several of

Waller’s co-workers testified that they received inadequate training on the

applicable rules and noted that there was no requirement that they wear PPE

on the shop floor at the time of Waller’s injury. The jury could have

concluded reasonably that a 3,000-lb. top-heavy object balanced on three

points left unsecured in a work area regularly accessed by employees in

street shoes directly adjacent to the tool lockers created a foreseeable hazard

for such employees.

Under FELA, the jury could also have considered, as evidence of

negligence, KCS’s noncompliance with national standards of care, which

would necessarily include the regulations applicable to KCS’s management

regarding crane operations and training (ASME B.30.2 § 2-3.3.3, the one

included in the jury interrogatories). As noted by this Court in Manchack v.

Willamette Industries, Inc., 621 So. 2d 649, 652 (La. App. 2 Cir. 1993), writ

denied, 629 So. 2d 1170 (La. 1993), violations of OSHA regulations are

relevant to establishing the liability of a party. See also, Gatlin v. Entergy

Corp., 04-0034, p. 6 (La. App. 4 Cir. 5/4/05), 904 So. 2d 31, 35, writ denied,

05-1509 (La. 12/16/05), 917 So. 2d 1114. However, the reason that

negligence per se should not have been a consideration in this case at all was

because it was not properly before the jury.

It was KCS who brought the issue of negligence per se before the

trial court in the form of a motion in limine, which sought to prohibit the

plaintiff from bringing negligence per se and its potential bar on the

plaintiff’s comparative fault before the jury. The plaintiff never amended

his petition to plead a cause of action alleging negligence per se, which is
22

actually separate and distinct from a FELA negligence claim, nor did he file

a motion for summary judgment on this issue.

We note that KCS did file two motions for summary judgment, both

of which were denied by the trial court; however, neither motion sought

adjudication of whether violation of an OSHA regulation by KCS

constituted negligence per se; instead, inter alia, the railroad asked the trial

court to find that OSHA regulations related to overhead/gantry cranes were

not applicable to this case.

Whether violation of a particular OSHA regulation constitutes

negligence per se is a legal determination that is properly made on summary

judgment or post-trial, but causation, when, as in the instant case, there are

sufficient facts from which a reasonable jury could find that a regulatory

violation contributed in whole or in part to a plaintiff’s injury, is exclusively

for the jury. Rogers, 352 U.S. at 504, 77 S. Ct. at 447; Walden v. Illinois

Central Gulf R.R., 975 F. 2d 361, 364-65 (7th Cir. 1992).

Under FELA, an employer’s fault may consist of a breach of the duty

of care or of a breach of some statutory duty. Kernan v. Am. Dredging, 355

U.S. 426, 432, 78 S. Ct. 394, 2 L. Ed. 2d 382 (1958). If a plaintiff proves a

railroad violated a statutory provision enacted for the purpose of worker

safety, he does not have to prove the elements of foreseeability, duty, or

breach. 45 U.S.C. § 51; Miller v. Union Pacific Railroad Co., 972 F. 3d 979

(8th Cir. 2020); Edwards v. CSX Transportation, Inc., 821 F. 3d 758 (6th Cir.

2016).

During the hearing on the motions in limine, Waller and counsel for

KCS “came to an understanding” that the issues of negligence per se and the

fact that its finding by the jury could nullify any comparative fault on the
23

part of the plaintiff need not be brought up before the jury, but instead was

simply something that would possibly come up after the jury’s verdict. This

was conveyed to the trial court by Waller’s attorney, with no one raising the

implications this could present should the jury return a verdict finding that

KCS violated the OSHA regulation and that Waller was at fault in causing

his injury. Thus, it was decided that the concept of negligence per se would

not be conveyed to the jury, who was to be the fact finder on all issues of

causation in this matter. Neither attorney mentioned negligence per se

during the trial, and no jury instructions were issued by the trial judge on

negligence per se or comparative fault.

The jury’s verdict was rendered on February 5, 2024. The answers to

the interrogatories by the jury were that both parties were at fault; KCS

violated the federal regulation that sets forth requirements for management

regarding crane operations, and this violation played a part, “no matter how

small,” in causing Waller’s injuries; KCS was 80% at fault, and Waller was

20% at fault; and Waller was entitled to damages totaling $5,380,655.06.

La. C.C.P. art. 1916(A) provides in pertinent part, that “[a]fter a trial

by jury, the court shall prepare and sign a judgment in accordance with the

verdict of the jury[.]” Additionally, when there are special interrogatories,

La. C.C.P. art. 1812(D) provides that the court shall enter judgment in

conformity with the jury’s answers to these special questions and according

to applicable law. As noted by the court in Brown v. Breaux Bridge Ventures,

LLC, 16-662, p. 6 (La. App. 3 Cir. 12/7/16), 207 So. 3d 1083, 1087, when

the judgment of the district court does not correspond to the verdict of the

jury, it is invalid on its face. La. C.C.P. art. 1813(C) provides that when the

general verdict and the answers are harmonious, the court shall direct the
24

entry of the appropriate judgment upon the verdict and answers. In a jury

trial, the jury is responsible for finding facts and applying the law, as

charged by the court, to the facts in arriving at a verdict. There is no

provision in Louisiana law for a jury’s verdict to be considered “advisory,”

thereby allowing the trial court to interpret the jury’s verdict or substitute its

own findings of fact. Scott v. American Tobacco Co., Inc., 04-2095 (La.

App. 4 Cir. 2/7/07), 949 So. 2d 1266, writs denied, 07-654, 07-0662 (La.

1/7/08), cert. denied, 553 U.S. 1094, 128 S. Ct. 2908, 171 L. Ed. 2d 842

(2008).

The factual determinations upon which the verdict and interrogatories

were based were made by the factfinder in this case, which was the jury, not

the trial judge. The jury’s verdict and its answers to the interrogatories were

based on the applicable law as explained to them by the trial court in its

instructions and are harmonious. Negligence per se was taken out of the mix

by the parties’ attorneys at the motion in limine hearing as a result of their

agreement to keep that legal doctrine from the jury. Because negligence per

se in this case is not simply a legal determination but a mixed question of

fact and law requiring that factual determinations be made by an informed

jury for its applicability, the trial court erred as a matter of law in failing to

enter judgment that corresponded to the jury’s verdict and interrogatories

made in accordance with the instructions they were given. Thus, we will

amend the trial court’s judgment by reducing the damages awarded to the

plaintiff by the 20% comparative fault assessed to him by the jury.

25

(3) The jury was manifestly erroneous in finding Waller only 20%
at fault.

KCS argues that under the factors set forth in Watson v. State Farm

Fire and Casualty Ins. Co., 469 So. 2d 967 (La. 1985), the jury’s allocation

of only 20% of the fault to Waller is manifestly erroneous.

Waller points out that the jury’s discretion to apportion fault under

FELA is immensely broad. He asserts that the jury’s allocation of fault in

this case is justified by proof of management’s negligence and that of

“unknown” employees, while his mistake was momentarily bracing himself

against the fan housing which he had reason to believe was secured.

At the time of Waller’s accident, Louisiana’s comparative fault system

of negligence allowed a plaintiff to recover if the defendant’s negligence

played a part in the plaintiff’s injury and did not bar a plaintiff from

recovering for his own contributory negligence as long as the plaintiff was

not found to be 100% at fault for the accident.6 La. C.C. art. 2323; Watson,

supra. Under FELA, an employee’s own contributory negligence does not

bar his recovery, although it may diminish recovery in proportion to his

fault. 45 U.S.C. § 53; Sorrell, 549 U.S. at 167, 127 S. Ct. 799; Progressive

Paloverde Ins. Co. v. Estate of Jenkins, No. CV 19-12840, 2020 WL

5819995, at *2 (E.D. La. Sept. 30, 2020).

As noted above, an appellate court may not reverse findings of fact in

a FELA case unless there is a complete absence of any probative facts to

6
Beginning January 1, 2026, Louisiana is shifting to a modified comparative fault
system. La. C.C. art. 2323 as amended by Acts 2025, No. 15, provides that a plaintiff
who is found to be 51% or more at fault will be barred from any recovery. If a plaintiff is
found to be less than 51% at fault, a comparative fault analysis will be performed, and
that plaintiff’s recovery will be reduced in proportion to his percentage of fault. This act
mandates that if the factfinder is a jury, there must be an instruction that a finding of 51%
or greater fault on the part of the plaintiff will result in no recovery.

26

support the fact finder’s conclusions. Richardson, 31,736, p. 6, 731 So. 2d

at 1021; Broussard, 29,769, p. 10, citing, Dennis v. Denver & Rio Grande

Western R.R. Co., 375 U.S. 208, 84 S. Ct. 291, 11 L. Ed. 2d 256 (1963). We

cannot say that the jury’s apportionment of fault is wholly unsupported by

the testimony and other evidence presented at trial. Thus, we find no merit

to this assignment of error.

(4) The jury abused its discretion by awarding excessive general
damages.

In support of this assignment of error, KCS cites jurisprudence

involving “similar” awards. According to KCS, the reasonable range of

general damages in such a case is $100,000 to $2 million. KCS urges this

Court to find that the jury abused its discretion in awarding $3.94 million in

general damages and to reduce that award to the highest reasonable amount,

which it claims is no more than $750,000.7

Consistent with the two-step analysis set forth in Barber Bros.

Contracting Co., LLC v. Capitol City Produce Co., LLC, 23-00788 (La.

12/19/24), 397 So. 3d 404, Waller compared the facts and circumstances of

his case to the general damage awards in several cases involving similar

facts. He urges this Court that the jury was well within its discretion to

make the award it did in this case.

FELA allows recovery of damages for personal injuries to an

employee of a railroad if the injuries resulted “in whole or in part from the

negligence of any of the negligence of any of the [railroad’s] officers,

7
The jury awarded Waller: $600,000 for past physical pain and suffering;
$800,000 for future physical pain and suffering; $400,000 for past mental anguish;
$500,000 for future mental anguish; $200,000 for past disability; $500,000 for future
disability; $60,000 for past disfigurement; $80,000 for future disfigurement; $350,000 for
past loss of capacity for enjoyment of life; and $450,000 for future loss of capacity for
enjoyment of life, for a total general damages award of $3.94 million.
27

agents, or employees.” 45 U.S.C. § 51; Armstrong v. Kansas City Southern

Railway Co., 752 F. 2d 1110 (5th Cir. 1985). The proper measure of damages

under FELA is inseparably connected with the right of action. Accordingly,

it is an issue of substance that must be settled according to the general

principles of law as applied by the federal courts. Morgan, 486 U.S. at 335,

108 S. Ct. 1837; Chesapeake & Ohio Ry. Co. v. Kelly, 241 U.S. 485, 491, 36

S. Ct. 630, 632, 60 L. Ed. 1117 (1916); Harris; supra; Bodenheimer, supra;

Shaw v. Texas and Pacific Ry. Co., 170 So. 2d 874 (La. App. 4 Cir. 1965),

writ denied, 172 So. 2d 703 (La. 1965).

If the railroad’s negligence played any part, no matter how small, in

causing an employee’s injury, then the railroad is liable for the resulting

damages. McBride, supra; Rogers, supra; Harris, supra; Williams v. City of

New Orleans, 04-0655 (La. App. 4 Cir. 1/19/05), 897 So. 2d 744, writ

denied, 05-0416 (La. 4/22/04), 899 So. 2d 580; E’Teif v. National R.R.

Passenger Corp., 98-2503 (La. App. 4 Cir. 4/22/99), 733 So. 2d 155, writ

denied, 99-1500 (La. 9/3/99), 747 So. 2d 548. As with other issues of fact,

jury damage awards in FELA cases have been afforded great weight by the

appellate courts of this state. Id.

We have looked at the particular facts and circumstances of the instant

case as established by the lay and medical testimony and documentary

evidence, as well as at prior awards in similar cases. See, Pete v. Boland

Marine & Mfg. Co., LLC, 23-00170 (La. 10/20/23), 379 So. 3d 636; Harris,

supra. We cannot say that the jury’s award is an abuse of its vast discretion.

Waller’s left foot was crushed where it joined at the ankle and heel

when the 3000-lb. fan housing toppled onto it. He remained trapped under

the large component until his cries were heard by other employees. He has
28

permanent damage to his left foot and internal damage to his large toe on

that foot. Waller has had almost constant pain which cannot be successfully

treated with injections, orthopedic devices, or surgery to lengthen his

Achilles tendon.

Waller had a ten-day hospitalization for infection and wound care

before he was discharged; he then had home health care services and

outpatient wound treatment through December 2017. He participated in

physical therapy for a year but efforts to “harden” his injuries were futile.

Waller has required assistive walking devices since his injury and always

will need them. Waller has developed hallux ridigus, which is severe

arthritis of the big toe which worsens over time. Additionally, his heel is so

sensitive that even the light touch of a bedsheet causes him severe pain. Due

to arthritis and hypersensitivity, Waller is unable to walk or bear any

substantial weight on his left leg.

Instability from his injuries caused Waller to have multiple falls while

maneuvering on crutches. In one fall, he landed on his right hand, causing

aggravation to a preexisting injury to his wrist. Waller had two surgeries

with Dr. Cameron Atchison in Ft. Worth, Texas, one to repair torn cartilage

(although full flexibility could not be restored) and the second to replace his

central wrist joint with a prosthetic ball-and-socket device, which required

bone grinding and resurfacing.

Waller continues to experience intense pain from his injuries. He

experiences alternating hypersensitivity and numbness, constant swelling,

and cannot wear a backed shoe. He has severe functional impairment with a

poor prognosis and has been diagnosed with Chronic Regional Pain

Syndrome, a condition that carries a pain profile that has been considered
29

worse than unprepared childbirth, cancer pain, kidney stones, or a crushed

finger. Spinal injections intended to block the pain pathway from Waller’s

spine to his foot worked as only short-term partial relief. A spinal cord

stimulator implanted at a later date with the purpose of interrupting pain

transmission was unable to be tolerated by Waller, who had surgery for its

removal in 2023.

In order to get some rest, Waller submerges his left leg in a bucket of

ice water to “freeze” it, but he still only sleeps about two to three hours at a

time. His treating physician has advised Waller that the “only obvious route

to significant pain relief” is below the knee amputation, a drastic measure

that must be considered by the plaintiff. Because of his right wrist injury,

Waller now has to use his crutch on the “wrong” side, which increases the

strain on his injured leg. This altered gait causes progressive pain in

Waller’s back, right hip, and right knee, which was the side previously

unaffected by the accident.

Waller is unable to enjoy activities he previously took part in prior to

his accident. Medical and lay testimony show that he can do nothing that is

physically taxing, such as exercising, doing yard work, or traveling to visit

his son or friends. Friends and family members also testified to how his

accident had changed his perception of himself and how others saw him. It

is fair to say that this accident and resulting injuries permanently altered

Waller’s life.

This assignment of error is without merit.

(5) The jury erred in awarding an amount for future medical
expenses that includes costs for procedures Waller has declined.

30

KCS notes that the jury was confronted with high and low amounts

for future medical expense estimates calculated by the parties’ experts. The

jury awarded Waller $396,104.34, the high option calculated by KCS’s

economic expert Chad Garland. This figure was based on the report of

Waller’s expert economist Jefferey Opp, whose calculations were based on

expenses in a worksheet prepared by Victoria Powell, some of which

represented procedures that had been previously declined by the plaintiff.

Thus, argues KCS, the jury’s selection of the “high” option for future

medical expenses is manifestly erroneous and must be reversed. KCS urges

this Court to amend this amount to the “low” estimate provided by Mr.

Garland, $239,106.57.

According to Waller, KCS chose not to call its own CPA, Chad

Garland, as a witness, but introduced his numbers to the jury through a

stipulation and visual exhibit. KCS’s attorney told the jury that Garland’s

range for future medicals was between $239,016.00 and $396,134.00,

depending on the jury’s view of future medical inflation trends, yet now

complains of the jury’s factual determination.

However, we note that the jury also heard the testimony of Victoria

Powell, the certified life planner who spoke at length about the cost of

potential future medical expenses, as well as that of economist Jeffery Opp,

who explained to the jury that even an award to Waller of medical expenses

of $279,000, which was based on conservative future care and did not

include the “speculative” procedures of which KCS complains, could cost

“in today’s dollars” from a low of $234,709 to a high of $416,958.

This assignment of error is without merit. The jury’s award for future

medical expenses was based on an amount which fell within the range of the
31

evidence presented to them, and this Court will not second-guess the jury’s

determination on this issue.

CONCLUSION

For the reasons set forth above, we amend the trial court’s judgment to

reduce the damages awarded to the plaintiff, Michael Waller, by 20%, the

percentage of fault allocated to him by the jury in its verdict. In all other

respects, the judgment of the trial court is affirmed. Costs of this appeal are

assessed equally to the plaintiff, Michael Waller, and the defendant, Kansas

City Southern Railroad.

AMENDED, and as AMENDED, AFFIRMED.

32