The Court Rejects Union Pacific Instructions

FN2 (footnote): The court rejected these instructions and gave Union Pacific's Instruction 9, which was a comparative fault instruction based on MAI 8.02.

The propriety of jury instructions on the measure of damages in FELA cases is a substantive issue governed by federal law. However, the form of the instructions and the manner in which the substantive law is submitted to the jury in FELA cases are procedural issues governed by state law. The use of instructions approved by the Missouri Supreme Court for use in FELA cases "is mandatory to the exclusion of all others."

In FELA cases, MAI 8.02 governs damages for an injury to an employee. "Other than the references to taxation, present value, and mitigation of damages, it is essentially the same as MAI 4.01 with the exception that the word 'direct' is deleted from the fifth line of MAI 4.01." MAI 8.02, Committee Comment (1996 Revision). MAI 8.02, like MAI 4.01, does not list or explain the elements of damages. This is to avoid the risk "of the jury being improperly instructed on damages not supported by the record." MAI 4.01, Committee Comment (2002 Revision). It is anticipated that counsel will tell the jury in argument what the lawful items of damages are and which damages are supported by the record. In this case, MAI damage instruction 8.02 was given; any further explanation by instruction was not acceptable procedure under MAI. MAI 8.02 allowed counsel to argue the facts of pain and suffering to the jury, including emotional distress. Under MAI practice, emotional distress resulting from plaintiff's fear of developing cancer was submitted by the "any damages" language in MAI 8.02, and the detail of these damages was reserved for counsel's argument.

Courtesy of Missouri Court of Appeals: Timothy P. Hedgecorth v. Union Pacific Railroad Co

see also:

Court Rejects Instructions Union Pacific's instructions are rejected in asbestos trial
Court rejects instructions in Union Pacific Asbestos case

Instruction B Union Pacific claims Instruction B missing in asbestos case
Union Pacific Asbestos Trial - Instruction B Not Submitted