LARRY ZAPP APPELLANT v. CSX TRANSPORTATION INC APPELLEE

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Court of Appeals of Kentucky.

LARRY ZAPP APPELLANT v. CSX TRANSPORTATION, INC. APPELLEE

NO. 2010–CA–001999–MR

Decided: June 15, 2012

BEFORE:  KELLER AND STUMBO, JUDGES;  LAMBERT, Double SENIOR JUDGE. BRIEF FOR APPELLANT:  Derek Humfleet Lexington, Kentucky BRIEF FOR APPELLEE:  Linsey W. West Kara M. Stewart Lexington, Kentucky

NOT TO BE PUBLISHED

OPINIONAFFIRMING

Larry Zapp appeals from an order of the Jefferson Circuit Court denying his motion for a new trial following a defense verdict in an action brought under the Federal Employers' Liability Act (“FELA”), 45 U.S.C. § 51, et seq.   Zapp contends that the trial court erroneously allowed CSX Transportation, Inc. to introduce a video at trial that was irrelevant to the case at hand and misleading to the jury.   After our review, we affirm.

Zapp worked as a locomotive engineer for approximately 43 years, the last 18 months of which were with CSX, before retiring in January 2001.   Zapp subsequently filed a FELA action against CSX in which he claimed that CSX had failed to provide him with a reasonably safe place to work, which resulted in his diagnosis of carpal tunnel syndrome and caused him to retire. Double

Zapp worked primarily as a “yard engineer,” or “hostler,” with CSX, which involved lining up and moving railcars into and out of the rail yard with a locomotive.   On May 2, 2008, CSX's expert ergonomist, Dr. R. Todd Brown, videotaped CSX locomotive engineer Timothy Eggert for eight hours while Eggert performed what was referred to as the “Y–131 job” at the CSX transfer yard in Indianapolis.   Dr. Brown subsequently performed a statistical analysis of the hand movements made by Eggert on the video and used this analysis to challenge Zapp's claims that the force and repetition required by the job caused his carpal tunnel syndrome.

According to testimony later given by Eggert, the Y–131 job included both “yard switching” and “industry switching.”   Yard switching consists of lining up trains/railroad cars in the rail yard for departure to various locations, while industry switching involves taking the railroad cars to and from actual industries.   When asked about the requirements of the Y–131 job, Eggert described them as follows:

Q. So did the Chevy/GM job, otherwise known as the Y131 job, involve some switching of railcars that had cars on them?   Is that –

A. Yeah. It was a yard switcher and an industry switcher.   You did – you took cars from the transfer yard to Chevrolet, you pulled the cars out that were loaded to go out, and you placed the cars in that were empty to go in.

And then you took the cars that you pulled out and you what they call flat switched them, put them in a specific order, brought them back to the transfer yard, and then took your lunch or whatever.

And then you went out and you switched the cars again, integrated them with other cars to put them on an outbound train that was going to be coming from Avon to the transfer yard, they make a pick-up, then they go to Toledo.

* * *

Q. Okay. Was this a yard switching job or an industry switching job?

A. It was considered both.   It was considered both.   It would do both.

According to Eggert, yard switching requires the use of more buttons and levers on the locomotive's control panel than industry switching, as well as more frequent use of the locomotive's throttle and reverser.   Yard switching also requires more use of the independent brake, which entails a lot of hand and arm movement.   Eggert additionally testified that when engineers are engaged in yard switching, they have to switch more cars than when they are engaged in industry switching and that this typically requires a faster pace of work.

Prior to trial, Zapp filed a motion in limine to exclude the video of Eggert's shift from being introduced as evidence.   Zapp's chief complaint about the video was that it allegedly demonstrated only the industry-switching aspects of the Y–131 job and none of the duties associated with yard switching.   Consistent with Eggert's testimony, he noted that industry switching is less rigorous than yard switching (which he characterizes as his “main job”) and contended that the repetition and ergonomic force required by yard switching, in particular, were key elements of his claim of causation.   Zapp argued that because the video showed only industry switching, it should be excluded as irrelevant and more prejudicial than probative because of its potential to confuse the jury about his job duties.   Zapp further argued that the video should be excluded because the locomotive shown therein was not the same one he had used at CSX and because the levers used by Eggert did not appear to require as much force as the ones he had used while at CSX. However, the trial court denied Zapp's motion after finding that his complaints went towards the evidentiary weight to be given to the video rather than its admissibility.

The jury ultimately returned a unanimous defense verdict for CSX, and Zapp subsequently filed a motion for a new trial based on the trial court's admission of the video into evidence.   The trial court denied the motion, specifically stating in its order that there was no reason to change its original ruling and reiterating that it was proper to permit the jury to see the video.   The court also noted that Zapp had had ample opportunity to challenge the evidentiary weight of the video by pointing out to the jury how the work demonstrated therein may have differed from the work Zapp did at CSX. This appeal followed.

On appeal, Zapp again challenges the admission of the aforementioned video into evidence for the same reasons noted above.   Our standard of review is well-established.   Rulings upon the admissibility of evidence rest within the discretion of the trial judge and will not be reversed in the absence of a clear abuse of that discretion.  Simpson v. Commonwealth, 889 S.W.2d 781, 783 (Ky.1994).  “The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”  Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999).

Zapp argues that the subject video should have been excluded from evidence because it was irrelevant and, in the alternative, because any probative value that the video might have had was outweighed by its prejudicial nature.   Kentucky Rules of Evidence (“KRE”) 401 defines “relevant evidence” as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”   If evidence is not relevant, it is not admissible.   KRE 402.   Moreover, even relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of undue prejudice, confusion of the issues, or misleading the jury[.]”  KRE 403.

Zapp contends that the video was irrelevant and/or misleading because it failed to demonstrate the job that he had primarily performed at CSX, i.e., yard switching.   However, Dr. Brown testified that Eggert did both yard and industry switching in the video, and his notes from the video shoot reflect that Eggert did some yard switching at approximately 8:17 a.m. Moreover, while Eggert could not recall whether he did any yard switching on the day the video was taken, he testified that he normally did both yard and industry switching during the course of a shift and that the Y–131 job included both yard switching and industry switching.   This is notable because Zapp acknowledged at trial that he had performed the tasks associated with the Y–131 job “a good percentage” of the time that he worked at CSX. Moreover, payroll records reflect that he performed the Y–131 job almost exclusively in his last two months with CSX. Thus, the video is relevant in that it sheds light on at least some of the work that Zapp performed while at CSX.

We also note that although it is apparent that Zapp's work at CSX involved yard switching, it is unclear just how much of his work involved this particular activity.   He claims that yard switching was his “main job” and that industry switching took up only about 15% of his time during the course of his employment with CSX, but he cites to nothing in the record to support these assertions.   Zapp also cites to nothing in the record supporting his claim that the levers used by Eggert required less force than the ones he had used at CSX. He also fails to demonstrate why Eggert's use of a different locomotive merited exclusion of the video since he does not claim that the controls used by Eggert differed in any way from the ones he had used at CSX. Eggert testified that there was nothing out of the ordinary about the controls he used in the video, that he had operated them as he normally did, and that the video was an accurate reflection of the Y–131 job.   Consequently, it is difficult to give credence to Zapp's argument that the video was misleading to the jury.

Given these facts, we do not believe that the trial court abused its discretion in admitting the video into evidence.   Although Zapp claims that his work at CSX required more repetition and force than the work demonstrated in the video, we agree with the trial court that such a complaint goes more to the question of the evidentiary weight to be given to the video rather than its admissibility.   Zapp had ample opportunity to discount the weight to be given to the video by addressing any dissimilarities between the work depicted therein and the work he considered to be his primary job while at CSX through witness testimony and in closing arguments.   The authorities cited by Zapp in dispute of this position are simply unconvincing.

The judgment of the Jefferson Circuit Court is affirmed.

STUMBO, JUDGE, CONCURS.

KELLER, JUDGE, CONCURS IN RESULT ONLY.

LAMBERT, SENIOR JUDGE: