[00:00:03] Speaker 04:
May it please the court.

[00:00:05] Speaker 04:
My name is Michael Bloodfogel.

[00:00:06] Speaker 04:
I represent LeAnn Kennedy.

[00:00:10] Speaker 04:
The issues in this case are unusual, but they're not actually very complicated.

[00:00:15] Speaker 04:
And I'll go through them in order.

[00:00:18] Speaker 04:
The first one is the verdict form.

[00:00:20] Speaker 04:
And the first question with the verdict form is, is this verdict form a special verdict or a general verdict?

[00:00:27] Speaker 04:
And I think the starting point for saying it must be a special verdict is that the defendant identified it as a special verdict form when they submitted it in the jury instructions.

[00:00:38] Speaker 04:
And I assume the defendant did that because they were trying to set up an appellate issue in case the verdict went adversely to them.

[00:00:45] Speaker 04:
But the second reason I would say it's a special verdict is all the pattern instructions are referred to in the reply brief at pages 5 through 7, where every federal circuit court that I could find that had

[00:00:57] Speaker 04:
verdict form similar to the one used in this case.

[00:01:00] Speaker 04:
And the State Supreme Court of Idaho, which is where this case was venued, they all concluded these are special verdicts or they're special interrogatories.

[00:01:09] Speaker 02:
I'm looking at the form.

[00:01:10] Speaker 02:
It looks like a general form to me.

[00:01:11] Speaker 02:
It asks, do you find the plaintiff has proved by preponderance of the evidence or the defendant was negligent?

[00:01:21] Speaker 02:
or was the defendant's negligence a cause of the injury and so forth and so on.

[00:01:27] Speaker 02:
So this is not asking the jury to find facts.

[00:01:31] Speaker 02:
This is asking the jury to reach conclusions about whether a party has carried the requisite burden of proof and so forth.

[00:01:42] Speaker 04:
Well, and I would submit

[00:01:44] Speaker 04:
It is asking the jury to make findings of fact, 14 different findings of fact.

[00:01:49] Speaker 04:
And the precedent.

[00:01:50] Speaker 03:
But not just findings of fact, to apply.

[00:01:53] Speaker 03:
The fact of the law.

[00:01:54] Speaker 03:
Negligence is not a fact.

[00:01:57] Speaker 03:
It's a conclusion that you draw by applying some legal standard to the facts, right?

[00:02:03] Speaker 04:
Well, certainly.

[00:02:04] Speaker 04:
But I would submit that the case law, too, agrees with me on this point.

[00:02:10] Speaker 04:
Bork case out of the Fifth Circuit, even this circuit's precedents have had cases with similar verdict forms, and every time is concluded these are special verdicts.

[00:02:21] Speaker 04:
One of the arguments the defendants are making here and that the trial court made is, well, the jury had to look at instructions before it could make these findings.

[00:02:31] Speaker 04:
And I would agree, but even Rule 49A specifically says there will be instructions to help the jury make each of these findings.

[00:02:39] Speaker 04:
So I'd submit, when you look at the case law, how all the pattern instructions look at this, when all the pattern instructions have very similar questions.

[00:02:48] Speaker 04:
And for example, the Seventh Circuit pattern instruction on FELA cases is very similar to what

[00:02:54] Speaker 04:
the jury had the answer here.

[00:02:55] Speaker 04:
And the Seventh Circuit refers to it.

[00:02:57] Speaker 02:
All right.

[00:02:57] Speaker 02:
Well, look, assuming arguing though, you're right.

[00:02:59] Speaker 02:
And we don't have to resolve that at this moment.

[00:03:06] Speaker 02:
That means that you didn't waive your objection.

[00:03:11] Speaker 02:
So what follows from that?

[00:03:13] Speaker 04:
Correct.

[00:03:14] Speaker 04:
Correct.

[00:03:14] Speaker 04:
So what follows from that is then we have to look to

[00:03:17] Speaker 04:
Is there a reasonable way to reconcile the jury's answers?

[00:03:21] Speaker 04:
And the case law is clear.

[00:03:22] Speaker 04:
If there is a reasonable way to reconcile the jury's answers, then we have to go with the verdict the jury had.

[00:03:29] Speaker 04:
And that's the Gallic case from the US Supreme Court, from et cetera.

[00:03:33] Speaker 04:
So I would submit there is no reasonable way to reconcile the jury's answers.

[00:03:38] Speaker 02:
Which answer?

[00:03:39] Speaker 02:
Let's take them.

[00:03:40] Speaker 02:
Let's break that down.

[00:03:41] Speaker 02:
Which one do you believe that there is no reasonable way to reconcile?

[00:03:47] Speaker 04:
Certainly.

[00:03:48] Speaker 04:
So I would submit there are three of them.

[00:03:49] Speaker 04:
But the first one is 1B, where the question was, do you find that defense negligence was a cause of injury or damage to the plaintiff?

[00:04:00] Speaker 04:
And the jury answered yes.

[00:04:02] Speaker 04:
And the form instructed the jury that if they had answered no, they were not to answer any more questions, sign the form, and they're done.

[00:04:11] Speaker 04:
So then the next question was 2B.

[00:04:13] Speaker 04:
And it was asking, do they find that the plaintiffs own negligence?

[00:04:17] Speaker 04:
was a cause of the plaintiff's injury or damage?

[00:04:20] Speaker 04:
And the jury again answered yes.

[00:04:22] Speaker 04:
Then question three is, what proportion or percentage of the plaintiff's injury or damage do you find to have been caused by the negligence of the respective parties?

[00:04:33] Speaker 04:
And the jury allocated damages, I think 40% to the plaintiff, 60% to the defendant.

[00:04:38] Speaker 04:
OK.

[00:04:38] Speaker 04:
So I think all three of those answers presuppose there was an injury or damage to the plaintiff.

[00:04:44] Speaker 04:
So in question four,

[00:04:46] Speaker 04:
Advises the jury, if you answered yes to questions 1A and 1B, what sum of money do you find, and it goes on, to be the total amount of the plaintiff's damages?

[00:04:57] Speaker 02:
I don't see the inconsistency.

[00:04:58] Speaker 02:
The jury could have answered those in just this way, but included that you hadn't carried your burden of proven damages.

[00:05:06] Speaker 02:
It wasn't the railroad's burden to disprove damages.

[00:05:10] Speaker 02:
You had to prove what the damages were.

[00:05:14] Speaker 04:
Well, and I would agree with that, except that the jury had just said three different times the plaintiff was injured or damaged.

[00:05:20] Speaker 04:
But you still had to prove the amount, right?

[00:05:24] Speaker 04:
Certainly.

[00:05:24] Speaker 04:
So if the jury had entered.

[00:05:25] Speaker 02:
But you didn't do that.

[00:05:29] Speaker 04:
Well, A, I believe.

[00:05:30] Speaker 03:
Or so they could have both concluded.

[00:05:31] Speaker 04:
Well, OK, fair.

[00:05:32] Speaker 04:
Exactly.

[00:05:33] Speaker 04:
And I'll get to that second point in a moment.

[00:05:35] Speaker 04:
But once the jury decides the plaintiff is injured or damaged, I would submit they have to enter a figure.

[00:05:42] Speaker 02:
No, you've got to prove it first.

[00:05:44] Speaker 02:
Well, and I approve the amount in the you went to damn you went to damages in your closing argument, right?

[00:05:51] Speaker 02:
And the jury, right?

[00:05:53] Speaker 02:
Yes.

[00:05:54] Speaker 02:
And the only other I mean, you you you put in

[00:06:00] Speaker 02:
earnings proof during the evidentiary portion of your presentation.

[00:06:08] Speaker 02:
But as I read the record, the only place you got up to the $8 million was in closing argument.

[00:06:17] Speaker 02:
And as we know, the judge instructed the jury that closing arguments were not evidence.

[00:06:29] Speaker 04:
If I was here trying to say the jury awarded some amount of damages, but it was too little, that's almost impossible to prove as an appellant.

[00:06:38] Speaker 04:
I would agree with you.

[00:06:39] Speaker 04:
If they awarded some amount, but I'm here saying, well, they should have awarded $8 million.

[00:06:43] Speaker 04:
And what was submitted to the jury, there was certainly evidence of pain and suffering even day after the incident.

[00:06:51] Speaker 04:
There was ample evidence of lost earnings.

[00:06:54] Speaker 04:
Jury didn't believe your testimony.

[00:06:57] Speaker 04:
Well,

[00:06:57] Speaker 04:
The jury is free to disbelieve plaintiff's testimony, but all of the testimony was to the effect of the plaintiff sustained damages in the incident, even their independent medical examiner.

[00:07:09] Speaker 04:
Her testimony, and I quote her, is, so first and foremost, she sustained the injury in November of 2016.

[00:07:16] Speaker 04:
That's their own independent medical examiner.

[00:07:22] Speaker 04:
Everyone acknowledged she had the incident,

[00:07:26] Speaker 04:
And the next day, she is with Dr. North getting treatment for it, for which he prescribes pain medication.

[00:07:33] Speaker 04:
So I'd submit all of the evidence was that she at least had some pain and suffering from the incident.

[00:07:40] Speaker 04:
So that would go to my second point is, aside from the inconsistency, which I maintain it was legally inconsistent in the Bork case from the Fifth Circuit is nearly identical in what happened, but beyond that,

[00:07:54] Speaker 04:
All of the evidence was that she sustained some kind of damage from the incident.

[00:07:59] Speaker 04:
There wasn't any evidence that the jury could reach toward and say, no, we believe this, even their own IME.

[00:08:07] Speaker 04:
She disputed the extent of the injury.

[00:08:09] Speaker 04:
She said, I'm not even sure it was a concussion.

[00:08:14] Speaker 04:
What do you think the jury did here?

[00:08:15] Speaker 04:
I think we had a confused jury that deliberated for six hours.

[00:08:20] Speaker 04:
I think potentially we had a divided jury.

[00:08:22] Speaker 04:
A what?

[00:08:23] Speaker 04:
a divided jury, which could possibly explain this inconsistency.

[00:08:28] Speaker 04:
We had the four notes from the jury that all, to me, illustrate some sort of confusion.

[00:08:35] Speaker 04:
But if your question is, what do I think really happened?

[00:08:37] Speaker 02:
Well, you know, that happens in all jury cases.

[00:08:39] Speaker 02:
We don't know what the jury, we don't know what goes on in the jury room.

[00:08:43] Speaker 02:
We don't know who the jury believed, who they didn't believe.

[00:08:51] Speaker 02:
The verdict, this verdict form seems to suggest to me that they just didn't believe your case.

[00:08:57] Speaker 04:
Well, and I would submit if they didn't believe the case, answer no to 1B.

[00:09:03] Speaker 04:
Then I'm still here saying that's against the weight of the evidence and all that.

[00:09:06] Speaker 04:
But at least then it's legally consistent.

[00:09:08] Speaker 04:
It's them saying, we don't think she was injured in the occurrence.

[00:09:12] Speaker 04:
That's internally consistent, at least.

[00:09:14] Speaker 00:
Counsel, can I just ask you, did you put in documentation

[00:09:21] Speaker 00:
of how much money was lost in wages and benefits, for example, or what the medical expenses were.

[00:09:33] Speaker 00:
Did you put in actual dollar amounts before the jury?

[00:09:37] Speaker 04:
Yes, Your Honor, twofold.

[00:09:40] Speaker 04:
As far as her wage loss, we put in evidence her tax returns, which showed she was making

[00:09:46] Speaker 04:
just under $47,000 a year in 2015 and 2016.

[00:09:49] Speaker 04:
And there's ample testimony she had not worked since she was fired within a month of the occurrence.

[00:09:56] Speaker 04:
And we had Dr. Anderi, who said she was not employable in any competitive job market.

[00:10:02] Speaker 04:
As far as past medical expenses, there were not.

[00:10:05] Speaker 04:
We did have the life care planner's testimony, which, as I point out in the reply brief, if we were trying to defend a multimillion dollar verdict, I would have made sure to get that in the record.

[00:10:14] Speaker 04:
But certainly, we had evidence on the lost earnings, and that is in the appellate record.

[00:10:20] Speaker 04:
The third and fourth issues I want to go to quickly.

[00:10:24] Speaker 04:
The first is Foster Peterson, who is a railroad operations expert.

[00:10:31] Speaker 04:
So his testimony on if he thought she was going too fast or what were the rules, et cetera, all of that would be admissible normally.

[00:10:40] Speaker 04:
He, by his own admission, had no qualifications to give opinions on biomechanics, human anatomy, medical issues.

[00:10:48] Speaker 04:
He repeatedly said he was not going to give any opinions on force levels, but then he did.

[00:10:54] Speaker 02:
And he got chopped up on these issues on cross-examination.

[00:10:59] Speaker 04:
Some, but the rule 702 says that's not the only remedy if

[00:11:06] Speaker 04:
you present an expert who is not qualified on a subject, they are not supposed to testify on the subject.

[00:11:13] Speaker 04:
I completely understand.

[00:11:14] Speaker 04:
On railroad operations, for example, we can cross-examine if there's just a difference about conclusions.

[00:11:22] Speaker 02:
It may have been debatable about whether he stepped over the line a bit from his formal expertise.

[00:11:33] Speaker 02:
You know, I may not have admitted it, another George may have, but this is abuse of discretion.

[00:11:39] Speaker 02:
And also, you've got a homeless error issue that squarely confronts you in this one.

[00:11:45] Speaker 02:
Well, and I'd submit- All these issues you are complaining about, you chopped them up on cross-examination.

[00:11:52] Speaker 04:
And I'd submit two things.

[00:11:53] Speaker 04:
One is cross-examination is not the first remedy.

[00:11:56] Speaker 04:
The first remedy is, is the person qualified?

[00:11:58] Speaker 04:
When they say they're not qualified,

[00:12:01] Speaker 04:
that alone should disqualify the testimony.

[00:12:03] Speaker 04:
As far as homeless error- You're saying we should have a new trial based on that?

[00:12:08] Speaker 04:
When the jury awards no damages and they heard testimony, supposedly expert testimony, that the forces my client experienced were no more than one would experience in a sneeze or from a slap of the back, yes, I think there's very sharp potential that that was prejudicial error toward my client.

[00:12:28] Speaker 04:
And why was that outside the scope of his expertise?

[00:12:31] Speaker 04:
He specifically said it was outside the scope of his expertise.

[00:12:34] Speaker 04:
He said he had no biomechanical expertise.

[00:12:36] Speaker 04:
The only reason... Right, but I guess...

[00:12:40] Speaker 03:
Maybe this is like it seems to me one could draw a distinction between you know, but biomechanical expertise is you know, what is the effect of a force on the human body?

[00:12:52] Speaker 03:
but Somebody who's just describing some from like a from a physics point of view, you know What different forces are might use, you know a force experienced by the body as an example of like you know to give a sense of the magnitude of different forces and this seems to be that which does seem

[00:13:10] Speaker 03:
at least arguably within the range of expertise or at least enough that it seems like a plausible exercise of discretion by the district court.

[00:13:17] Speaker 03:
So why, what's wrong with looking at it that way?

[00:13:20] Speaker 04:
And I would submit that his affirmative testimony about I don't have expertise in these things, I'm not going to opine on these things, I'm not qualified to opine on those things, even excludes the second category you just described.

[00:13:32] Speaker 04:
And I'd also submit, even in the defendant's response brief here, they're saying, well, he didn't give any opinions that went toward whether or not Ms.

[00:13:39] Speaker 04:
Kennedy could have been injured in the collision.

[00:13:42] Speaker 04:
OK, given that, then what is the relevance of these articles he's read on sneezes or being slapped in the back or anything?

[00:13:50] Speaker 04:
And if we're admitting this kind of testimony, it creates confusion, because I think the jury would legitimately think, if I'm hearing this, it must be relevant and something I should consider.

[00:14:00] Speaker 04:
So I will save time for my rebuttal, but for these and the other reasons stated in the briefing, I think reversal is required.

[00:14:05] Speaker 03:
Thank you.

[00:14:18] Speaker 01:
Good morning, Your Honors.

[00:14:19] Speaker 01:
May it please the court, Paul Stewart, on behalf of defendants below APA-LE's, before this court, Eastern Idaho Railroad and Wadco Companies.

[00:14:29] Speaker 01:
I was trial counsel in the district court below, together with my partner, Scott Safrice.

[00:14:37] Speaker 01:
This trial was not long.

[00:14:38] Speaker 01:
It was not necessarily complex.

[00:14:42] Speaker 01:
Perhaps it was not perfect, but it was a fair trial.

[00:14:46] Speaker 01:
Miss Kennedy had her day in court, and the jury simply did not accept her case.

[00:14:52] Speaker 01:
I'll start with the contention that my colleague led with as well, that being the proposed jury verdict we submitted as part of our proposed jury instructions in this case.

[00:15:05] Speaker 01:
It was a proposed verdict form.

[00:15:07] Speaker 01:
I did label it special verdict form.

[00:15:11] Speaker 01:
That was my mistake.

[00:15:12] Speaker 01:
It was certainly not trying to set up an appealable issue.

[00:15:16] Speaker 01:
It was a mistake, but it was also

[00:15:23] Speaker 01:
mistake that I believe other practitioners and even the courts have confused.

[00:15:27] Speaker 01:
I think it's the Floyd v. Laws case where the Ninth Circuit recognizes that some appellate courts incorrectly apply those foregoing terms.

[00:15:39] Speaker 02:
I mean the issue is what is this a special or is this a special or general verdict?

[00:15:45] Speaker 01:
It's a general verdict with written questions because it's asking the jury to apply the legal instructions to the facts.

[00:15:54] Speaker 01:
And I think the Seventh Circuit model instruction, it's not law, it's a proposed special instruction just like the Ninth Circuit pattern jury instructions are.

[00:16:06] Speaker 01:
I think that's also mislabeled as a special verdict form.

[00:16:10] Speaker 01:
I believe that's a general verdict form with written questions as well.

[00:16:14] Speaker 01:
I think the Seventh Circuit made the same mistake that I made.

[00:16:19] Speaker 01:
And to the point of, yes, especially- Why isn't this verdict inconsistent?

[00:16:26] Speaker 01:
It's not inconsistent, Your Honor, because while, well, there's multiple reasons it's not consistent.

[00:16:34] Speaker 02:
Give us your best three.

[00:16:36] Speaker 01:
OK, I'm going to limit it to two.

[00:16:38] Speaker 01:
The first of all is she did not prove up damages.

[00:16:42] Speaker 01:
There was no very little evidence that Miss Kennedy was damaged in this case.

[00:16:48] Speaker 03:
Right, but if that's the case, then shouldn't the answer to was the defendant's negligence a cause of injury or damage to the plaintiff?

[00:16:56] Speaker 03:
That should have been no, right, if she didn't suffer any damage.

[00:17:00] Speaker 01:
Well, I would point out that that written question says injury or damage.

[00:17:07] Speaker 01:
I think that written question goes to the element of causation.

[00:17:14] Speaker 01:
The way it's read, it does say, did the negligence cause injury or damage?

[00:17:18] Speaker 01:
So I would say.

[00:17:21] Speaker 03:
But it may be directed to causation.

[00:17:25] Speaker 03:
But if there was no damage,

[00:17:30] Speaker 03:
How could this, are you drawing a distinction between injury and damage, that it was a cause of injury but not damage?

[00:17:35] Speaker 03:
And was the jury instructed that those were different things?

[00:17:39] Speaker 01:
The jury was not instructed that those were different things.

[00:17:42] Speaker 01:
I think it speaks for itself, that it's used in the disjunctive.

[00:17:47] Speaker 01:
And I think there can be an injury, an injury that's so insignificant that it's not compensable.

[00:17:54] Speaker 01:
I think that

[00:17:56] Speaker 01:
that situation occurred in the fleece case out of New York.

[00:18:00] Speaker 01:
In that case, there was a summary judgment finding that the railroad was liable, but still, the plaintiff failed to prove damages, gave zero dollars in damages, and the verdict was deemed consistent.

[00:18:13] Speaker 00:
Well, let's take the lost wages and benefits to date of trial.

[00:18:20] Speaker 00:
Your friend on the other side said that

[00:18:25] Speaker 00:
He did put in evidence of two prior years, wages and benefits that she hadn't worked since the accident.

[00:18:39] Speaker 00:
I think that would be enough to come up with a figure and then take 40% of it and put it in the 4A box.

[00:18:55] Speaker 00:
How do you explain that they didn't even compensate her for that?

[00:19:01] Speaker 01:
Well, two points to that.

[00:19:03] Speaker 01:
First of all, that evidence, I believe, was perhaps read into the record.

[00:19:09] Speaker 01:
There was no witness testimony.

[00:19:11] Speaker 01:
Obviously, there was no economist who testified in this case.

[00:19:16] Speaker 01:
The tax returns, I didn't see any

[00:19:19] Speaker 01:
pay stubs or actual proof of income, but the tax returns reflecting an entire year's pay were admitted.

[00:19:31] Speaker 01:
That's true.

[00:19:33] Speaker 01:
What was not admitted was

[00:19:36] Speaker 01:
the wages she missed from the day of the accident until the day she was cleared to return to work for about eight days and in the briefing I attempt to make this point is that

[00:19:54] Speaker 01:
To the extent that she was entitled to any lost wages, it would have been limited to that brief period of time.

[00:20:01] Speaker 01:
And to ask the jury to take four or five years of tax returns showing a yearly income, that certainly wasn't argued for.

[00:20:13] Speaker 01:
I suppose they could have gone through the mathematical machinations to try to come to a reasonable figure.

[00:20:24] Speaker 01:
Did I answer the court's question?

[00:20:26] Speaker 00:
Well, I'm just saying there was some evidence that she did have lost wages and benefits.

[00:20:32] Speaker 00:
And the prior answer that on the causation question would say that they believed it was caused by the accident.

[00:20:45] Speaker 00:
And so wouldn't they have been able to come up with some number, proportionate number,

[00:20:52] Speaker 00:
for wages.

[00:20:53] Speaker 00:
I don't know what other evidence was introduced as to specific damages.

[00:21:01] Speaker 00:
Your friend said that he didn't introduce medical bills.

[00:21:05] Speaker 00:
So I don't know, but it seems that he did introduce evidence of some damages.

[00:21:13] Speaker 01:
Your Honor, I would agree that the tax returns were submitted as evidence.

[00:21:20] Speaker 01:
I believe if the jury had awarded money for lost wages, if evidence had been put on for past medical expenses, and the jury awarded some monetary damages for one of those items, one of those categories of damages,

[00:21:41] Speaker 01:
This would be a different case.

[00:21:43] Speaker 01:
But in this case, the lines of seven zeros in the damages question were remarkably consistent.

[00:21:56] Speaker 01:
Going back to Judge Parker's question,

[00:21:59] Speaker 01:
They didn't prove their damages as was their burden to prove.

[00:22:05] Speaker 01:
And it's consistent with plaintiff's theory of the case.

[00:22:09] Speaker 01:
They asked for an all or nothing verdict.

[00:22:13] Speaker 01:
The case presented to the jury is completely different than the case they're presenting to this court.

[00:22:19] Speaker 01:
Here, they're saying, well, at the very least, she had some pain and suffering.

[00:22:26] Speaker 01:
And that is not proven.

[00:22:29] Speaker 01:
That is, we highly contested that.

[00:22:32] Speaker 02:
Well, she testified to that, didn't she?

[00:22:37] Speaker 01:
I don't recall that she testified to that in any great length.

[00:22:42] Speaker 02:
She testified to her medical— Testified she got hurt when she bumped her hair.

[00:22:45] Speaker 02:
That's pain and suffering, I suppose.

[00:22:50] Speaker 01:
Your Honor, you're right.

[00:22:51] Speaker 01:
She did testify that she bumped her head.

[00:22:54] Speaker 01:
I would point out to the Tano VSS President Mason case, which states, the measurement of pain is inescapably subjective.

[00:23:04] Speaker 01:
It is not the appellate's court function to second guess the triers of fact who heard the plaintiff speak for himself.

[00:23:12] Speaker 00:
So Council, what about the fact that she was diagnosed after the incident with whiplash and a mild concussion?

[00:23:21] Speaker 01:
So that was, diagnosis was made by Dr. North.

[00:23:25] Speaker 01:
We saw her the day after the accident.

[00:23:28] Speaker 01:
That diagnosis was made completely on her own report to Dr. North.

[00:23:36] Speaker 01:
It was, and if, you know, obviously there were, or at least from the record that I can recall, there was no objective sign of bruising or abrasion.

[00:23:47] Speaker 01:
So he was going off of her word.

[00:23:50] Speaker 01:
And if the jury did not believe Mrs. Kennedy, as they had every right not to believe, then they could disbelieve the testimony, or sorry, disbelieve the report she made to Dr. North and disbelieve that diagnosis.

[00:24:08] Speaker 01:
Another way this verdict can be reconciled, as Judge Moody did below, is the fact that Ms.

[00:24:15] Speaker 01:
Kennedy had well-documented and significant pre-existing conditions.

[00:24:21] Speaker 01:
Even before this incident, the year before this incident, she was seeing a psychologist.

[00:24:27] Speaker 01:
And I think it was in February 2016 where she was working with that psychologist to complete a disability paperwork

[00:24:39] Speaker 01:
in that she was alleging that her condition, her medical condition, her mental condition was so severe that she qualified for a disability.

[00:24:50] Speaker 01:
She had a long-term, appears to be a long-term conversion disorder, and that's a mental health disorder that arises from likely trauma, childhood trauma and abuse.

[00:25:05] Speaker 01:
These things had nothing to do with the alleged heart joint at Eastern Idaho Railroad.

[00:25:14] Speaker 01:
As to the testimony given by Foster Peterson, yes, he was a defense expert.

[00:25:20] Speaker 01:
He testified to railroad operations, rules, and train dynamics.

[00:25:28] Speaker 01:
He did testify that the acceleration, the head acceleration specifically involved in a normal

[00:25:35] Speaker 01:
coupling of railroad cars was about 1.5, sorry, 0.5 to 1G acceleration.

[00:25:42] Speaker 01:
And to illustrate that, he gave, jurors obviously are not familiar with how railroad cars are joined.

[00:25:52] Speaker 01:
So to illustrate that point, he gave examples of things they could relate to, sneezing, a slap on the back.

[00:26:00] Speaker 01:
Mr. Peterson admitted that he was not a biomechanical expert.

[00:26:06] Speaker 01:
He admitted that he was not offering opinions about whether Ms.

[00:26:10] Speaker 01:
Kennedy was injured.

[00:26:13] Speaker 01:
And as Judge Parker noted, plaintiff's counsel did vigorously cross-examine him, at which point he admitted that the acceleration

[00:26:26] Speaker 01:
in a hard joint or a rough coupling would be greater than a slap on the back just because of the masses involved.

[00:26:40] Speaker 01:
There was a point raised in the briefing that Ms.

[00:26:44] Speaker 01:
Kennedy was entitled to judgment as a matter of law or a directed verdict on her negligence.

[00:26:52] Speaker 01:
That is something we disagree with.

[00:26:55] Speaker 01:
And what it comes down to is the speed Ms.

[00:26:58] Speaker 01:
Kennedy was going at the time of the coupling.

[00:27:02] Speaker 01:
If she was going more than four miles an hour, she was in violation of G Corps 7.4.

[00:27:08] Speaker 01:
The testimony about the speed she was going was disputed.

[00:27:13] Speaker 01:
She had told one medical provider that she was going 8 to 10 miles an hour.

[00:27:19] Speaker 01:
When she testified, she could only say that she was going under 10 miles an hour, which, conveniently enough, was the speed limit of the yard.

[00:27:34] Speaker 01:
And I think the reason she took that approach was because she wanted to leave the door open to argue that this joiner, this joint, was more rough, harder than a normal coupling made of four miles an hour.

[00:27:53] Speaker 01:
She slammed her head.

[00:27:54] Speaker 01:
She saw stars.

[00:27:55] Speaker 01:
It had to be going fast.

[00:27:57] Speaker 01:
Or that was her theory, as I

[00:28:00] Speaker 01:
understand it.

[00:28:02] Speaker 01:
So we know the rules Ms.

[00:28:04] Speaker 01:
Kennedy potentially broke.

[00:28:06] Speaker 01:
We know there was disputed evidence.

[00:28:08] Speaker 01:
And if she was going at a speed of eight to 10 miles an hour, and that's the speed that the collision occurred at, then it's 100% her fault.

[00:28:18] Speaker 01:
And that's what was argued to the jury.

[00:28:20] Speaker 01:
The jury came back and split the fault roughly 50-50.

[00:28:26] Speaker 01:
Sorry.

[00:28:27] Speaker 01:
Exactly.

[00:28:28] Speaker 01:
40% to Ms.

[00:28:29] Speaker 01:
Kennedy, 60% to the railroad.

[00:28:33] Speaker 01:
The last point I want to touch on is the allegation that there was some impropriety and error when the district court slipped up when he was explaining the verdict form to the jury.

[00:28:47] Speaker 01:
He mentioned the transcript reflects, he said, approximate cause.

[00:28:51] Speaker 01:
It could have been proximate, more likely.

[00:28:55] Speaker 01:
That was not something that was scripted in the jury instructions.

[00:28:58] Speaker 01:
The district court was simply explaining the verdict form.

[00:29:03] Speaker 01:
No one noticed.

[00:29:04] Speaker 01:
No one objected.

[00:29:05] Speaker 01:
The jury was submitted or given written questions or written instructions that were appropriate.

[00:29:12] Speaker 01:
And as the court has already pointed out, the jury found that Ms.

[00:29:15] Speaker 01:
Kennedy and the railroad were the cause of injury or damage.

[00:29:19] Speaker 01:
So the fact that

[00:29:21] Speaker 01:
There was some misstatement about cause that went unnoticed, seems much ado about nothing.

[00:29:29] Speaker 01:
We'd ask that this court affirm the district court's denial of plaintiff's motion for a new trial.

[00:29:35] Speaker 01:
Thank you.

[00:29:36] Speaker 03:
Thank you.

[00:29:42] Speaker 04:
I'll make two quick points.

[00:29:44] Speaker 04:
The first is on the general verdict versus special verdict issue.

[00:29:47] Speaker 04:
The Zang case, Z-H-A-N-G, that I discussed beginning on page 30 of the opening brief gives an excellent analysis from this court of when you have a special verdict and when you have a general verdict.

[00:30:01] Speaker 04:
if you follow along its reasoning, what was here was a special verdict.

[00:30:05] Speaker 04:
The second point I want to make, based on what the argument was made, is he indicated that Dr. North's diagnoses the following day after the incident were all based on the plan's presentation.

[00:30:15] Speaker 04:
And in the reply brief at pages 17 and 18, I have a block quote from Dr. North

[00:30:21] Speaker 04:
where he states his diagnoses were not just based on the history he was given.

[00:30:24] Speaker 04:
It was also based on the presentation and his own findings.

[00:30:29] Speaker 04:
So again, I did not hear.

[00:30:30] Speaker 02:
Isn't the problem here that there was ample evidence that your client had substantial medical issues that predated this incident?

[00:30:45] Speaker 02:
You know, we're not, we're not juries.

[00:30:48] Speaker 02:
We weren't there.

[00:30:50] Speaker 02:
And we're not able to look at the witnesses.

[00:30:54] Speaker 02:
We're not able to catch nuances from the record.

[00:30:57] Speaker 02:
You know, very often, you know, the written, the transcript doesn't really catch, in some respects, what goes on at a jury trial.

[00:31:07] Speaker 02:
And in the day, the jury just didn't believe your client.

[00:31:12] Speaker 02:
And that's what the jury verdict reflects.

[00:31:17] Speaker 02:
I'm sorry.

[00:31:21] Speaker 04:
I interrupted you.

[00:31:22] Speaker 02:
No, no.

[00:31:23] Speaker 04:
Go ahead.

[00:31:25] Speaker 04:
And again, I would say, if the jury just did not believe the client, didn't believe my client, they would have answered no to 1B.

[00:31:32] Speaker 04:
I assume they would have done it fairly quickly, and we would have moved on.

[00:31:37] Speaker 04:
The fact that they answered 1B, yes, and then awarded damages

[00:31:42] Speaker 04:
or award no damages at the end, again, I find legally inconsistent.

[00:31:48] Speaker 02:
Well, the jury could have just concluded, and I spend some time looking at the transcript, there just wasn't any really proof of damages.

[00:32:07] Speaker 04:
Again, if they found that, if they thought there is no proof of damages.

[00:32:11] Speaker 02:
Well, they put zeros, so they were obviously, that's what they found.

[00:32:14] Speaker 02:
I mean, you didn't get to $8 million until the end of your closing argument.

[00:32:22] Speaker 04:
Well, certainly.

[00:32:22] Speaker 04:
And if I was here saying they awarded some amount of money, but they should have awarded $8 million, I think all of you justifiably could say,

[00:32:33] Speaker 04:
You didn't put on enough evidence of $8 million, and the jury was well within its rights not to award that.

[00:32:39] Speaker 04:
And you'd all be right.

[00:32:41] Speaker 04:
What I would submit is there was evidence of some damages, certainly more than zero.

[00:32:47] Speaker 04:
And the argument, we just heard.

[00:32:53] Speaker 04:
We did not hear of any doctor who testified she had no damages whatsoever from the incident.

[00:32:59] Speaker 02:
I mean, the jury here was just sending a message about what they thought of your case.

[00:33:06] Speaker 04:
Well, number one, they are still like, when I present a motion for a directed verdict on this issue, the defendant has to identify more than a centella of evidence that suggests she was not damaged.

[00:33:18] Speaker 04:
They didn't do that.

[00:33:20] Speaker 04:
But the second point is, if the jury wants to send the message, at the very least, they ought to do that, or they're required to do that consistently.

[00:33:28] Speaker 04:
Thank you.

[00:33:28] Speaker 03:
Thank you very much.

[00:33:29] Speaker 03:
We thank both counsel for their arguments.

[00:33:32] Speaker 03:
The case is submitted.