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Dalebout v. Union Pacific Railroad Co.5/6/1999
(For Official Publication)
Second District, Ogden Department The Honorable Roger S. Dutson
Union Pacific Railroad Company (Union Pacific) challenges a jury verdict for Mark S. Dalebout. We reverse and remand in part and affirm in part.
BACKGROUND
We recount the facts in a light most advantageous to the jury's verdict, mentioning contrary evidence only as it aids in understanding our resolution of this appeal. See Patey v. Lainhart, 366 Utah Adv. Rep. 21, 21 (Utah 1999).
Dalebout brought this personal injury action against Union Pacific under the Federal Employers' Liability Act (FELA). See 45 U.S.C. ยงยง 51-60 (1983). He asserted that he was injured by Union Pacific's negligence and requested damages for past and future medical costs, past wage loss, future impairment of earning capacity, and past and future pain and suffering.
Dalebout was twenty-six when he started working for Union Pacific in 1975. He had graduated from high school and completed about two-and-a-half years of college. His prior work history included carpet sales, ski patrol, and ski lift operations. Over the years with Union Pacific, Dalebout worked as a switchman, then brakeman, conductor, and, finally, an engineer.
On February 1, 1993, while Dalebout was working as an engineer running a locomotive, the defective seat in which he sat dropped three or four inches as he tried to open a window. He was jarred and felt sharp pain in his back. Dalebout reported the injury to Union Pacific and took ten days off with pay before returning to work. His doctor diagnosed him with back strain, treating him with physical therapy and anti-inflammatories. Despite the treatment, Dalebout's back remained painful.
Dalebout then visited another doctor, Dr. Bryan. Based on a magnetic resonance image (MRI) and X-rays, Dr. Bryan determined that Dalebout had degenerative disc disease with minimal bulging of two spinal discs. The disc disease had pre-existed the injury, but apparently had not been painful. The injury had then exacerbated the disease, precipitating Dalebout's back pain. Dr. Bryan prescribed more anti-inflammatories. Meanwhile, Dalebout continued the physical therapy exercises on his own and kept doing them through the time of trial.
In further visits to Dr. Bryan, Dalebout described chronic pain in both his back and legs. He also reported that part of his right foot was numb. About three years after the first MRI, Dr. Bryan ordered another one, which showed little change. Dr. Bryan continued prescribing anti-inflammatories.
Via a videotaped deposition shown at trial, Dr. Bryan testified that Dalebout's pain was twenty percent related to his injury and eighty percent related to the pre-existing degenerative disc disease. Dr. Bryan stated that the disc disease would worsen over the years, but he could not predict whether Dalebout's pain would also worsen. Regarding future treatment, Dr. Bryan testified that Dalebout would always need anti-inflammatories and an occasional epidural steroid injection to cope with his lingering backache. He further opined that a thirty-percent chance exists that Dalebout may need back surgery. The doctor stated that Dalebout would not be able to work as an engineer if he underwent the surgery. Without the surgery, though, the doctor testified that there is no reason why Dalebout can not continue to work as an engineer.
Dalebout testified at trial that his back constantly hurts and his legs have become painful too. The pain seems to be slowly worsening, and he has to be careful in his activities to keep from further irritating his back. Indeed, Dalebout
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