NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 24 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

LEANN KENNEDY, No. 23-35141

Plaintiff-Appellant, D.C. No. 1:19-cv-00424-JMM

v.

MEMORANDUM*

EASTERN IDAHO RAILROAD, L.L.C.;

WATCO COMPANIES, L.L.C.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Idaho James Maxwell Moody, Jr., District Judge, Presiding

Argued and Submitted March 28, 2024 Seattle, Washington

Before: WARDLAW, PARKER,** and MILLER, Circuit Judges.

Plaintiff-Appellant Leann Kennedy (“Kennedy”) appeals the district court’s

denial of her post-trial motions for a new trial, for renewed judgment as a matter of

law, and to vacate the judgment. In November 2016, Kennedy, then an employee

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Barrington D. Parker, Jr., United States Circuit Judge for the U.S. Court of Appeals for the Second Circuit, sitting by designation. of Defendants-Appellees Watco Companies, LLC d/b/a/ Eastern Idaho Railroad,

LLC (“EIRR”), was involved in a train accident while coupling railroad cars in the

course of her duties. The impact caused her to hit her head and, she contends,

resulted in brain injuries that contributed to the medical conditions from which she

now suffers.

In 2019, Kennedy asserted negligence claims against EIRR under the

Federal Employers’ Liability Act (“FELA”), 45 U.S.C. § 51. The jury found that

EIRR was 60 percent responsible for the coupling accident, that Kennedy was 40

percent responsible, and that Kennedy suffered no damages. The district court

entered judgment in favor of EIRR. We have jurisdiction under 28 U.S.C. § 1291,

and we affirm.

1. Kennedy first contends that the district court erred in denying her motion for

a new trial because the jury’s verdict was impermissibly inconsistent by

apportioning fault but awarding no damages. We review a district court’s denial of

a motion for a new trial for abuse of discretion. Kode v. Carlson, 596 F.3d 608,

611 (9th Cir. 2010). Contrary to Kennedy’s assertion, the jury returned a general

verdict applying relevant negligence law to the facts of this case pursuant to

Federal Rule of Civil Procedure 49(b)—not a special verdict under Rule 49(a).

Thus, Kennedy was required to raise her objection below before the jury was

released. Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020, 1030-36 (9th Cir.

2 2003); Kode, 596 F.3d at 611. Because Kennedy did not do so, she has waived her

right to object to the consistency of the verdict.

In any event, the district court did not abuse its discretion in declining to

disturb the jury’s verdict. The plaintiff in a FELA case “bears the burden of

proving negligence,” and one essential element of a negligence claim is proof of

damages. Mendoza v. South. Pac. Transp. Co., 733 F.2d 631, 632 (9th Cir. 1984);

see Weinberg v. Whatcom Cnty., 241 F.3d 746, 751 (9th Cir. 2001) (“Proof of

damages is required because ‘the purpose of a tort action is to compensate for loss

sustained and to restore the plaintiff to [their] former position.’”) (quoting

Restatement (Second) of Torts § 549(2) cmt. g (1977)).

The record on appeal reflects that Kennedy adduced to the jury, at best, only

minimal evidence of damages. The jury was apparently unpersuaded by her

presentation and awarded her no damages, which it was entitled to do.1 The

district court therefore did not abuse its discretion by declining to second-guess the

jury and denying Kennedy’s motion for a new trial. See Kode, 596 F.3d at 611; see

also Hard v. Burlington Northern R.R., 812 F.2d 482, 486 (9th Cir. 1987) (“We

will not disturb the jury verdict, unless, viewing the evidence in the manner most

1 Kennedy argued to the jury for $8 million in damages in opening and closing, but “opening and closing arguments are not evidence.” Zafiro v. United States, 506 U.S. 534, 541 (1993). Kennedy failed to present evidence of medical expenses she claimed she incurred due to the accident.

3 favorable to the prevailing party, we can say that the court abused its discretion.”),

abrogated on other grounds by Warger v. Shauers, 547 U.S. 40 (2014).

2. Likewise, the district court did not err in denying Kennedy’s motion for

renewed judgment as a matter of law as to EIRR’s negligence and Kennedy’s

comparative fault and damages. “We review de novo the grant or denial of a

renewed motion for judgment as a matter of law.” Pavao v. Pagay, 307 F.3d 915,

918 (9th Cir. 2002). In evaluating a Federal Rule of Civil Procedure 50(b) motion,

“[t]he test is whether the evidence, construed in the light most favorable to the

nonmoving party, permits only one reasonable conclusion, and that conclusion is

contrary to that of the jury.” Alaska Rent-A-Car, Inc. v. Avis Budget Grp., Inc.,

738 F.3d 960, 970 (9th Cir. 2013) (quoting White v. Ford Motor Co., 312 F.3d 998,

1010 (9th Cir. 2002)). The evidence presented at Kennedy’s trial did not permit

only one reasonable conclusion with respect to these issues. While EIRR admitted

that its train conductor was partially at fault for the accident, it argued that

Kennedy’s fault also played a role in the rough coupling, and it presented expert

testimony to that end. The parties therefore were at odds as to the apportionment

of fault between them. We have been clear that the apportionment of fault in

FELA cases is a question of fact for the jury to decide. See Jenkins v. Union

Pacific R. Co., 22 F.3d 206, 212 (9th Cir. 1994) (recognizing that the jury is “to

make factual findings on the issue of comparative negligence”) (quoting Gish v.

4 CSX Transp., Inc., 8890 F.2d 989, 993 (7th Cir. 1989)). Kennedy was therefore

not entitled to judgment as a matter of law.

3. Next, Kennedy contends that the district court erred when, in its explanation

of the verdict form to the jury, it informed the jury that it should consider whether

EIRR’s “negligence [was] an approximate cause of the damage.” She argues that

the district court imposed a proximate cause element that the Supreme Court has

held does not exist for FELA claims. See CSX Transp., Inc. v. McBride, 564 U.S.

685, 688 (2011). Kennedy did not raise this objection below. Consequently, we

review the challenged instruction for plain error, and we see none. C.B. v. City of

Sonora, 769 F.3d 1005, 1016 (9th Cir. 2014) (en banc). We are satisfied that the

district court’s statement did not affect Kennedy’s substantial rights or the fairness

and integrity of the trial. See Bearchild v. Cobban, 947 F.3d 1130, 1139 (9th Cir.

2020). There is no indication that the jury was confused as to the elements of

Kennedy’s FELA claim, and the district court did not introduce any error in its

written jury instructions—only in an oral explanation of the verdict form, which

itself did not mention proximate cause. Any error was therefore harmless.

4. Finally, Kennedy argues that the district court erred in admitting portions of

defense expert Foster Peterson’s testimony, claiming that his discussion of the

physical forces Kennedy might have experienced during the rough coupling were

biomechanical opinions that he was not qualified to give. We review a district

5 court’s decision to admit testimony pursuant to Fed. R. Evid. 702 for abuse of

discretion. United States v. Holguin, 51 F.4th 841, 852 (9th Cir. 2022). District

courts, in their role as gatekeepers, “are vested with broad latitude to decide how to

test an expert’s reliability and whether or not an expert’s relevant testimony is

reliable.” Murray v. Southern Route Maritime SA, 870 F.3d 915, 923 (9th Cir.

2017) (cleaned up). Here, the district court determined that Peterson did not give

opinions outside his area of expertise because he “specifically stated that he could

not testify about the effect of forces on the human body or injury causation,” and

his “testimony was based on sufficient data and reliable principles and methods.”

The district court did not abuse its discretion in reaching this conclusion.

AFFIRMED.

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