Background
On August 14, 2017, Chaylea Cramer, a dispatcher at Union Pacific Railroad’s Omaha dispatch center, rolled her left ankle while descending a flight of stairs toward the restroom. She stepped on the transition between a terrazzo stair surface and the carpeted landing, causing her ankle to give way. Although she walked off the injury that night, Cramer ultimately underwent multiple surgeries on both ankles over the following years. A clinical record from the day after the incident reflected that she had told the occupational health nurse she “was in a hurry,” and a personal injury report she completed a month later similarly attributed the accident in part to being “in a hurry.” Cramer filed suit against Union Pacific under the Federal Employers’ Liability Act (FELA) in July 2020, alleging the railroad failed to provide a reasonably safe workplace and maintain its stairwell properly.
Two significant factual disputes shaped the trial. First, Cramer had a preexisting bilateral pes cavus (high-arch) foot condition that, according to Union Pacific’s orthopedic expert, predisposes individuals to ankle sprains and contributed to the surgeries beyond the first. Cramer’s treating orthopedist, Dr. Scott McMullen, disputed that the condition caused the workplace injury or necessitated the follow-up procedures, but conceded on cross-examination that pes cavus can predispose people to rolling their ankles on stairs. Second, the parties disputed whether Cramer was rushing at the time of the fall. After a six-day trial in July 2024, the jury returned a verdict on verdict form No. 3, finding both parties had met their burdens: it assessed Cramer 95% negligent and Union Pacific 5% negligent, and awarded $287,600 in total damages (including $41,600 in past wage loss and $225,000 in pain and suffering, but zero for future lost earnings or future household services). Both parties moved post-verdict — Cramer for judgment notwithstanding the verdict and a new trial; Union Pacific to amend the judgment — and the district court denied all motions. Both parties appealed.
The Nebraska Supreme Court moved the case to its docket and considered four principal issues: (1) whether the jury instruction on apportionment due to Cramer’s preexisting pes cavus condition was proper; (2) whether the comparative-fault instruction and the jury’s reduction of the damage award were proper; (3) whether the trial court abused its discretion in excluding Dr. McMullen’s opinion that Cramer’s worklife would be shortened by approximately 15 years; and (4) whether Union Pacific was entitled to a setoff under 45 U.S.C. § 55 for short-term disability payments made to Cramer.
The Court’s Holding
The Nebraska Supreme Court affirmed the district court on all issues. On apportionment, the court held that jury instruction No. 14 — informing the jury that Union Pacific is liable only for damages caused by the August 2017 incident, but is liable for all damages if the jury cannot separate those caused by the preexisting condition from those caused by the accident — was proper under FELA. The court reaffirmed that an apportionment instruction is appropriate where there is evidence of a preexisting condition and the degree of aggravation cannot be determined with precision. Here, conflicting expert testimony about whether Cramer’s pes cavus contributed to her injuries and surgeries provided sufficient evidentiary basis for the instruction. The court also rejected Cramer’s contention that the jury, rather than the court, should not have been permitted to reduce her damages for comparative fault, noting that the instructions as a whole — read together — correctly stated the law under 45 U.S.C. § 53 and that the jury is presumed to have followed them.
On the exclusion of McMullen’s worklife-expectancy opinion, the court upheld the trial court’s Daubert/Schafersman gatekeeping ruling. The trial court had repeatedly sustained foundation objections and afforded Cramer’s counsel multiple opportunities to establish a reliable methodology. During the offer of proof, McMullen conceded that no medical formula or methodology existed that he had used or was aware of; he testified only that he relied on his general training and experience. The Nebraska Supreme Court held that the trial court did not abuse its discretion in concluding that this was insufficient under the applicable reliability standards — distinguishing between permissible general testimony about injury progression (which McMullen was allowed to give) and the specific quantified opinion (15 years of lost worklife) that required a more rigorous methodological foundation.
Key Takeaways
- Under FELA, an apportionment instruction is appropriate whenever evidence supports that a preexisting condition contributed to an employee’s injuries and the degree of aggravation is uncertain — even if the condition was asymptomatic before the workplace incident and even if the employee’s own expert disputes causation.
- A FELA plaintiff’s expert may offer general prognosis testimony about injury deterioration without a formal methodology, but a specific quantified opinion on lost worklife expectancy requires the expert to articulate a reliable methodology beyond general training and experience; the absence of any formula or disciplinary standard is a legitimate basis to exclude the opinion under Daubert/Schafersman.
- In Nebraska, jury instructions in FELA cases must be read as a whole; an instruction quoting 45 U.S.C. § 53’s comparative-fault reduction language is not prejudicial error merely because it omits an explicit statement that the court, rather than the jury, performs the arithmetic reduction, so long as the instructions are not misleading overall.
- A motion to alter or amend a judgment and a motion for new trial are both reviewed for abuse of discretion; the appellate court will not disturb those rulings simply because the jury weighed disputed factual evidence — such as conflicting accounts of whether the plaintiff was rushing — differently than the plaintiff would have preferred.
Why It Matters
This decision reinforces the evidentiary gatekeeping role of trial courts in FELA litigation when railroad employees seek damages for diminished future earning capacity. By affirming the exclusion of a treating physician’s worklife-loss opinion that rested solely on general experience with no identifiable methodology, the court signals that plaintiffs cannot substitute credentialed expertise for analytical rigor — even when the expert is the long-treating physician with firsthand knowledge of the patient’s condition. Defense counsel in similar cases can use this decision to challenge worklife-expectancy opinions that lack an articulated methodological framework.
The decision also clarifies Nebraska practice on apportionment instructions in FELA cases involving preexisting conditions. The court confirms that an asymptomatic preexisting condition does not automatically preclude an apportionment instruction; the threshold question is simply whether the evidence is sufficient for a reasonable jury to conclude that the condition played some role in the plaintiff’s damages. Plaintiffs’ counsel handling FELA ankle or orthopedic injury cases should be prepared to counter expert testimony about structural predispositions — such as pes cavus — at the motion-in-limine stage, as failure to exclude such evidence may open the door to a full apportionment instruction even when the condition was never previously symptomatic.