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Monarch v. Southern Pacific Transportation Co.3/25/1999
CERTIFIED FOR PARTIAL PUBLICATION *
In a bifurcated proceeding, the jury found that appellant's action under the Federal Employers' Liability Act (hereafter the FELA) (45 U.S.C. ยง 51 et seq.) to recover damages for his loss of hearing was barred by the three-year statute of limitations. The court subsequently entered judgment in favor of respondent, and this appeal ensued.
Appellant complains that the trial court erred by bifurcating the statute of limitations issue, altering the order of proof, excluding evidence of equitable estoppel, instructing the jury, and dismissing his fraud cause of action. We find that no prejudicial errors were committed, and affirm the judgment.
STATEMENT OF FACTS
Appellant began his employment with Southern Pacific in 1963, and worked thereafter as a switchman, brakeman, and conductor. During the course of his employment duties until 1990, appellant was regularly subjected to loud, irritating noises from the locomotive engine, wheels and train whistle. The intensity of the noise varied with appellant's location on the train and the duties he performed. Southern Pacific never informed appellant that the "noise" he experienced would cause permanent harm to his hearing.
In 1984, Southern Pacific retained M.T.S. Associates (hereafter M.T.S.), a consulting company that provides "hearing conservation programs" to the railroad and other industries, to collect sound level survey information, "educate employees on the hazards of noises and what they could do to protect themselves," and conduct hearing evaluations of Southern Pacific's employees. The primary purpose of the educational aspect of the M.T.S. program implemented for respondent was to inform "railroad employees that certain levels of sound could damage their hearing." Employees were also advised that when the decibel level reached the point that they were forced to "raise their voice" to be heard in conversation, they needed to use "ear protection." The hearing evaluations were "strictly for monitoring purposes," and did not diagnose the cause of hearing loss or notify employees that they had an "on-the-job related" injury .
Appellant became aware that he suffered from hearing loss in 1984, when he was directed by Southern Pacific to take a hearing test. According to a "test card" used by M.T.S., an audiogram performed upon appellant on May 25, 1984, indicated that he suffered hearing impairment(that is an "increase in the decibel threshold"(in the left ear, while his right ear then tested "normal." The audiogram result was consistent with appellant's complaint to the technician of "hearing difficulty" in his left ear. Appellant was furnished with fitted earplugs by the technician following the 1984 test. Appellant acknowledged that he "had a concern" with his hearing in 1984, but felt it "was minor."
Appellant's hearing was tested again by M.T.S. on April 6, 1989. He then told the technician that he thought his hearing was "worse." In regard to the state of his hearing in 1989, appellant testified at trial, "I knew I had a problem." An audiogram taken in 1989 found no significant change in the left ear, but detected deterioration in the higher frequencies in the right ear. The audiogram results revealed that appellant suffered from "high above normal range of hearing loss." Due to the "change in hearing" in the right ear, the evaluator made a notation on the test card questioning appellant's claim that he used hearing protection. A notation was also made that appellant was "put on the list for counseling" and further observation, and given the admonition, "strongly urge ear protection at all times in noise." He was again "fitted for earpl
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