United States Court of Appeals

Fifth Circuit



## FILED

August 4, 2004

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 03-10534

RENE RIVERA,

Plaintiff-Appellee,

versus

UNION PACIFIC RAILROAD CO.,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Texas

Before BARKSDALE, EMILIO M. GARZA, and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:

In this negligence action under the Federal Employer’s Liabilit y Act (“FELA”), Union Pacific

Railroad Company (“Union Pacific”) appeals the district court’s denial of its alternative motions for

judgment as a matter of law or new trial following a jury verdict in favor of railroad employee Rene

Rivera on his personal injury claims. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Rivera’s FELA action against Union Pacific claimed that he sustained a herniated disk on July

17, 2001, as a result of the railroad’s failure to provide him with a safe work place by assigning him2

to a task which it knew or should have known was beyond Rivera’s physical capabilities. At the time

of the incident in qu est io n, Rivera was employed by Union Pacific as a track welder. His job

responsibilities included “destressing” rails, a process through which sections of the track that have

bowed are restored to their original form in order to avoid derailments. Destressing involves cutting

out small portions of the bowed rail, rewelding the rail, and smoothing the edges of the repaired

section with a “rail shear.” The physically demanding task requires repeated bending, st o o ping,

pulling, pushing, and lifting loads weighing in excess of 10 to 15 pounds.

At some point in early June 2001, Rivera began no t icing pain in his lower back and groin,

which beca me pro gressively worse. On June 28, 2001, Rivera filled out an accident report and

informed his supervisor, Leroy Nettles, that he was suffering from lower back and groin pain. That

same day, Rivera went to Abilene Regional Hospital, where a doctor diagnosed his condition as “low

back strain.” Rivera’s back and groin pain persisted. On July 3, 2001, Rivera sought advice from

a chiropractor, who wrote a note recommending that Rivera be restricted to “moderate work status

at this time.

. . [; n]o heavy lift ing, pushing or pulling.” The July 3 note further stated that Rivera was

to “be re-evaluated in 10 to 14 days.” When Rivera presented the note to Nettles, Nettles requested

clarification of the term “moderate.” Accordingly, Rivera returned to the chiropractor and obtained

a second note dat ed July 5, 2001. That note restricted Rivera to 6 to 8 hours of work a day , and

specified “No heavy lift

ing, pushing, or pulling (Not to exceed 10 to 15 pounds).” The note further

stated that the restrictions “are expected to last until at least 7/17/01.” Although Rivera testified that

he showed Nettles the second note, Nettles denied that he ever saw it.

The following day, July 6, 2001, Rivera went to the emergency room in Abilene, where he

was again diagnosed with low back strain. Dr. Lynn Barlow, who examined Rivera, gave him a note3

instructing that he (1) do no lifting for 5 days; (2) find a doctor for further care on “Monday,” and

(3) follow-up with a doctor if his groin pain persisted. Rivera testified that he gave the note to

Nettles. At Nettles’ urging, Rivera then decided to use the one week he had remaining of his vacation

time to rest.

Rivera testified that upon his return to work on July 16, 2001, he informed Nettles that his

back was “still sore.” T h o ugh Net t les claimed at trial that Rivera said he felt “fine,” Nettles also

testified that he told Rivera that as far as he was concerned, Rivera was st ill on restricted duty

.

Nonetheless, according to Rivera, Nettles directed Rivera to “go to Ranger and destress a rail[;] there

will be a gang out there to help you.” Rivera did so, and worked a full day without incident. The

next day, July 17, Nettles again assigned Rivera to a destressing project. During the course of this

task, Rivera attempted to pick up a rail shear with the assistance of co-worker Mark Lucky. The rail

shear weighed 35 pounds, but the pair had difficult y prying the shear from the track and had to pull

on the shear. Rivera testified that at the moment the rail shear came loose, he “heard a loud pop

noise” and felt sharp, burning pain in his lower back, causing him to collapse to the ground in pain.

The other Union Pacific crew members improvised a back board and stretcher to carry Rivera to a

crossing where he was met by an ambulance. At t he ho spital, Rivera was given steroid shots and

released.

On July 30, 2001, Dr. Robert LeGrand, a neurosurgeon, diagnosed Rivera with a herniated

disk between L5 and S1. Approximately six months later, after attempts at conservative treatment

did not alleviate Rivera’s condition, Dr. LeGrand performed surgery on Rivera’s back.

On March 26, 2002, Rivera brought this FELA action against Union Pacific, seeking damages

for his groin and back injury under a theory of negligent assignment. At trial, Union Pacific orally4

moved for judgment as a matter of law when Rivera rested and at the close of evidence, arguing that

no evidence supported submission of the negligent-assignment issue to the jury “for the reason that

there [was] no medical restriction” limit ing Rivera on July 17, 2001. The district court denied both

motions and submitted t he issue to the jury. The jury found both sides negligent, attributing 95%

fault to Union Pacific and the balance to Rivera, and awarded Rivera $1,196,020, primarily for lost

earning capacity. Rivera moved for judgment for $1,048,420, conceding that there was no evidence

supporting certain expens es fo r which the jury had awarded damages. Union Pacific renewed its

motion for judgment as a matter of law and alternatively moved for a new trial, asserting that it was

not negligent, that Riv era had a herniated disk prior to the July 17 lifting incident, and that no

evidence supported the jury’s findings. The trial judge denied both motions and rendered judgment

in the amount requested by Rivera, plus post-judgment interest at a 10% rate. The trial judge also

denied Union Pacific’s subsequent motion for a new trial, but granted the railroad’s motion to modify

the judgment and issued a nunc pro tunc judgment reducing post-judgment interest to 1.31%. Union

Pacific timely filed notice of appeal.

DISCUSSION

On appeal, Union Pacific challenges the district court’s denial of its alternative motions for

judgment as a matter of law or new trial, arguing that the evidence is insufficient to sustain the jury’s

finding of FELA liability under the “negligent-assignment” doctrine. We affirm.

I. Standards of review

Preliminarily, the parties dispute the standard governing our review of the district court’s

denial of Union Pacific’s motion for judgment as a matter of law. A court may enter judgment as a

matter of law under Rule 50 only where there exists “no legally sufficient evidentiary basis” for the5

jury’s verdict. F ED

. R. C IV

. P. 50(a)(1); V adie v. Mississippi State Univ.

, 218 F.3d 365, 372 (5th

Cir.2000), cert. denied

, 531 U.S. 1113 (2001). The standard for reviewing such motions is the same

in the trial court and on appeal. S pringborn v. American Commercial Barge Lines, Inc.

, 767 F.2d 89,

94 (5th Cir. 1985) (citation omitted). In the FELA context, when a defendant challenges the

sufficiency of the evidence to support a plaint iff’s verdict, we must affirm the denial of the

defendant’s motion for judgment as a matter of law unless there is a complete absence of probative

facts to support the conclusion reached by the jury. Lavender v. Kurn

, 327 U.S. 645, 654 (1946);

Wooden v. Missouri Pacific Railroad Co.

, 862 F.2d 560, 561 (5th Cir. 1989) (applying the complete

absence of evidence standard in a FELA case when reviewing the denial of a defendant’s motion for

a directed verdict under former Rule 50 (citing Allen v. Seacoast Products, Inc.

, 623 F.2d 355, 360

& nn. 5-6 (5th Cir.1980)); Davis v. Odeco, Inc.

, 18 F.3d 1237, 1243 (5th Cir. 1994) (reviewing for

complete absence of evidence the denial of a defendant’s motion for judgment as a matter of law in

a case brought under the Jones Act, which fully incorporates the FELA’s featherweight standard of

review (citing Bommarito v. Penrod Drilling Corp.

, 929 F.2d 186, 188 (5th Cir. 1991)); s ee Lane

v. R.A. Sims

, 241 F .3d 439, 445 (5th Cir. 2001) (reviewing for complete absence of evidence the

denial of a defendant’s motion for judgment on its cross-claim against a co-defendant).

Union Pacific devotes a substantial amount of ink to its assertion that this Court should be

guided by a reasonableness standard in deciding whether to uphold the jury’s verdict. Alt ho ugh

Union Pacific presents several variations of this argument, its contentions boil down to the view that

the Boeing “substantial evidence” standard governs our review in this case. S ee Boeing v. Shipman

,

411 F.2d 365, 374-75 (5th Cir. 1969) (en banc) (providing that a mo t ion for judgment

notwithstanding the verdict should be granted only when the facts and inferences point so strongly1 Rivera and Union Pacific also dispute whether the railroad properly preserved in its

original motion for judgment as a matter of law several issues which the railroad now urges on

appeal -- namely, that the doctrine of negligent assignment includes an element of force missing in

this case, that Rivera's failure to request lighter duties or his "voluntary decision to pick up the rail

shear" precludes recovery, or that Rivera failed to establish a causal connection between the

railroad's conduct and his injury. Because the “complete absence of evidence” standard governs

our review of a denial of a FELA defendant's motion for judgment regardless of whether the

issues urged on appeal were raised in such motion before the jury deliberated, we need not

address whether Union Pacific has waived these issues.

6 and overwhelmingly in favor of a moving party that reasonable persons could not arrive at a contrary

verdict), overruled on other grounds in Gautreaux v. Scurlock Marine, Inc.

, 107 F.3d 331, 335 (5th

Cir. 1997) (en banc). This argument is without merit. Our precedents clearly establish that in this

Circuit, a judgment as a matter of law against the plaint iff in a FELA suit is appropriate “only when

there is a complete absence of probative facts” supporting the plaint iff’s position. W ooden

, 862 F.2d

at 561; Davis

, 18 F.3d at 1243; Bommarito

, 929 F.2d at 188. As we have previously stated, “[t]his

standard is highly favorable to the plaintiff, and recognizes that the FELA is protective of the

plaintiff’s right to a jury trial.” Wooden , 862 F.2d at 561. 1

Similar ly, we review the denial of a motion for new trial brought on the ground that the

verdict is against the great weight of the evidence for abuse of discretion, which we have held to

m ean that the “denial will be affirmed unless there is ‘a clear showing of an abs olute absence of

evidence to support the jury’s verdict.’” Lane , 241 F.3d at 444 (stating in a FELA case involving

a defendant’s jury verdict that “[o]ur ‘review of the denial of a new trial motion is more limit ed than

when one is granted’” (citing W hitehead v. Food Max of Miss., Inc.

, 163 F.3d 265, 269 (5th

Cir.1998) (same, in non-FELA context)). Such showing “‘indicat[es] that the trial court had abused

its discretion in refusing to find the jury’s verdict contrary to the great weight of the evidence.’” Id.7

Consequently, we must not disturb the verdict unless Rivera failed to advance even a marginal claim

for relief. S ee

, e.g.

, Davis

, 18 F.3d at 1241; Boeing Co.

, 411 F.2d at 374-75; accord Phillips v.

Western Co. of North America , 953 F.2d 923, 927 (5th Cir.1992).

II. Analysis

Because the “complete absence of supporting probative facts” standard is appreciably more

deferential to jury verdicts than the reasonable jury standard, we need only consider whether Rivera

adduced sufficient evidence to meet the “featherweight” burden under the FELA. S ee Davis

, 18 F.3d

at 1241 (citing Bommarito , 929 F.2d at 188). We conclude that he did.

The FELA provides the exclusive remedy for a railroad employee injured as a re sult of his

employer’s negligence. S ee

, e.g.

, Wabash R.R. Co. v. Hayes

, 234 U.S. 86, 89 (1914); Janelle v.

Seaboard Coast Line R.R. Co.

, 524 F.2d 1259, 1261 (5th Cir.1975). The statute authori zes an

injured railroad employee to recover damages from his employer for “injury or death resulting in

whole or in part from the [railroad’s] negligence.” 45 U.S.C. § 51. The ul ti m ate fact question i s

whether the railroad exercised reasonable care in creating a reasonably safe working environment.

Urie v. Thompson , 337 U.S. 163, 179 n.16 (1949). The railroad’s duty to create a reasonably safe

work environment encompasses its duty to assign an employee to work for which he or she is

reasonably suited. E mmons v. Southern Pacific Transp. Co.

, 701 F.2d 1112, 1120 (5th Cir. 1983).

A railroad company breaches that duty if it negligently assigns its employee to perform work beyond

his or her physical capacity -- that is, if the railroad knew or should have known of the employee’s

diminished work capacity and, in spite of that knowledge, the railroa d continued to assi gn the

employee to tasks that it knew or should have known would aggravate his or her physical condition.

See id. ; Nat’l R.R. Passenger Corp. v. Krouse , 627 A.2d 489, 496 (D.C. 1993). To prevail in this8

case, Rivera need only adduce some evidence that tends to show that his employer’s neglig e nce

“played any part, even the slightest, in producing [his] injury.” R ogers v. Missouri Pac. R.R. Co.

, 352

U.S. 500, 506 (1957).

A. Fault or breach of the standard of care

Union Pacific asserts that it is entitled to judgment as a matter of law or a new trial because

the evidence presented was insufficient to sustain the jury’s finding that the railroad was negligent.

In support of its position, Union Pacific primarily argues that it could not be liable for Rivera’s back

injury under a theory of negligent assignment because it did not, through Nettles, “force” or “order”

Rivera to destress the rail or lift the rail shear on July 17, 2001. Union Pacific further maintains that

the task to which Nettles assigned Rivera on that date posed no apparent or obvious risk of spinal

injury because his diminished condition was not self-evident, no medical restrictions were in place

on that date, and Rivera failed to request reassignment. These arguments are unavailing.

First, all witnesses agree that when Rivera returned to work, Nettles directed him to do some

task relating to destressing a rail. The parties presented sharply conflicting testimony, however,

regarding exactly what Nettles told Rivera to do. On direct, Nettles denied that Rivera informed him

upon his return to work that he still suffered from back pain. Nonetheless, Nettles testified that: he

told Rivera that he was still on restricted duty; he anticipated that Rivera might overexert himself; he

instructed Rivera to “just stand around and supervise” the destressing project and that he was “not

to do any of the work;” and that the actual welding was to be done by another individual, most likely

Mark Lucky.

Rivera, by contrast, testified that when he returned to work, he told Nettles that his “back

was still sore.” According to Rivera, Nettles nevertheless directed him to “go . . . destress a rail,”2 Rivera testified that the only other qualified welder employed by Union Pacific at that

location, his cousin Artie Rivera, had the day off on July 17, 2001.

9 and told him that there would “be a gang there to help” him. Rivera explained that he complied out

of concern “on behalf

of [his] job.” Rivera further testified that destressing must be done by a

qualified welder, and that he was the only qualified welder for Union Pacific at that work site on the

day in question. 2 Rivera denied that Nettles told him that he was only supposed to supervise, that he

was not “actually” supposed to do any welding, or that Lucky was supposed to weld that day.

Rivera’s testimony was corroborated by both his co-worker, Lucky , and his on-site

destressing supervisor, Eric Meier. Lucky testified that he worked for Union Pacific as a truck driver,

not a welder, and that he never received any training as a welder. Although Lucky was present when

Rivera received instructions to destress the rail, Lucky denied that he heard Nettles tell Rivera that

he was supposed to merely supervise the job. Lucky further denied ever being told by Nettles that

he (Lucky) was supposed to do the welding. Meier similarly testified that Nettles t old him that

Rivera would be the welder for the job. Meier also stated that he did not recall Nettles saying that

Rivera was on restricted duty or that Rivera was only supposed to supervise.

Second, Rivera introduced evidence that the railroad, through Nettles, knew or should have

known that Rivera’s back was indeed in a diminished condition on Ju ly 17 and that the task of

destressing rails places heavy strain on an employee’s back and could possibly cause serious injury.

Although the parties presented conflict ing evidence regarding whether Rivera, upon his return to

work, informed Nettles that he continued to suffer from back pain, Union Pacific does not dispute

that it knew about Rivera’s back condition prior to July 17, 2001, that Rivera was treated on at least

three occasions in late June and early July, 20 01, for lower back and groin strain, and that this10

condition kept Rivera off the job for the week preceding July 17. Rivera testified that he also gave

Nettl es t he July 5, 2001, chiropractor’s note, which instructed that Rivera’s work restrictions

proscribing heavy lifting, pulling, or pushing, were “expected to last until at least 7/17/01.”

Further, on cross-examination by Rivera, both Nettles and Dr. Roy Craig Ponder, the defense

expert, conceded that it would not be prudent for an employer to assign a worker who suffers from

symptoms of disk herniation to “actually do the work” of destressing a ra il. Nettles stated that

destressing is “not the type of job that a person who has a work lim it at io n of not lifting 10 or 15

pounds or not bending or stooping or pulling or pushing should do,” and that assigning heavy work

to a person with an inflamed back “runs the risk of further injury.” Dr. Ponder likewise testified that

“surely” it would be “prudent on the part of any supervisor of a worker who[] [i s] sufferi ng from

[symptoms of herniation] to not assign him to do .

. . heavy lift ing, stooping, bending, that kind of

thing.”

In light of the fo rego ing, we find that the conflicting evidence was a legally sufficient

evidentiary basis for the jury’s finding that Union Pacific was negligent. The jury was entitled to

credit Rivera’s version of the events, and plainly did so in this case. “Needless to say, it is not our

funct ion to re-weigh the evidence or re-evaluate the credibility of witnesses; that is for the jury.”

Lane

, 241 F.3d at 446 (citing Hiltgen v. Sumrall

, 47 F.3d 695, 70 0 (5th Ci r.1995)). Taki ng the

evidence in the light most favorable to the verdict, as we must, we find that the record reveals that

Nettles knew of Rivera’s back condition and that Nettles assigned Rivera to actually destress the rail

-- a task which necessarily requires welding and which he alone, as the only welder available, could

perform. As noted above, Union Pacific admitted that, assuming the truth of these two facts,

assigning Rivera to destress the rail constituted a breach of its duty to assign Rivera to work for3 We note that Union Pacific’s assertion that Rivera’s failure to request reassignment

precludes liability is merely another way of stating that Rivera voluntarily assumed the risk of

injury, and for that reason this argument, too, must fail. See Norfolk & Western Ry. Co. , 538

U.S. at 144-145.

11 which he is reasonably suited. To the ext ent t hat Rivera voluntarily lifted the rail shear, as Union

Pacific asser t s, t he jury was entitled to consider and in fact did consider whether Rivera was

comparatively negligent, as evidenced by the jury’s assignment of 5 % fault to Rivera. S ee Williams

v. The Long Island Railr oad Company , 196 F.3d 402, 407 (2d Cir. 1999). Contrary to Union

Pacific’s assertion, the fact that Rivera perhaps over-exerted himself on July 17 does not preclude a

finding of FELA negligence on the railroad’s part. S ee Norfolk & Western Ry. Co. v. Ayers

, 538

U.S. 135, 144-145 (2003) (stating that Co ngress, in 1939, abrogated the assumption of the risk

doctrine in FELA cases and that “the FELA [also]

. . . ‘rejected the doctrine of contributory

negligence in favor of

. . . comparative negligence’” (quoting Consolidat ed Rail Corporation v.

Gottshall , 512 U.S. 532, 542 (1994) (internal citation omitted)); Williams , 196 F.3d at 407. 3

In sum, because there was not a complete absence o f pro bative facts supporting the jury’s

finding of negligence, we d e cline to set aside the jury’s finding that the railroad breached the

applicable standard of care in assigning R ivera t o a task which it knew or should have known

exceeded his physical capabilities.

B. Causation

Union Pacific next argues that no evidence su ppo rt s t he jury’s finding of a causal nexus

between Nettles’ assignment of Rivera to the destressing project on July 17, 2001, and Rivera’s back

injury. Union Pacific contends that “the only reasonable inference” that can be drawn from t h e

evidence presented is that Rivera sustained his herniated disk before the July 17 incident. According12

to Union Pacific, because the herniated disk preexisted the event s of July 17, any negligence that

occurred on that date could not be “even the slightest cause of the herniated disk.” We disagree.

The Supreme Court has “used the term ‘sligh t est’ to describe the reduced standard of

causation between the employer’s negligence and the employee’s injury in FELA § 51 cases.

Gautreaux v. Scurlock Marine, Inc. , 107 F.3d 331, 335 (5th Cir. 1997) (en banc) (citing Rogers v.

Missouri Pacific R. Co.

, 352 U.S. 500, 506 (1957)). Under the FELA, “‘the t est o f a jury case is

simply whet her t he pro o fs justify with reason the conclusion that employer negligence played any

part, even the slightest, in prod ucing t he injury or death for which damages are sought.’”

Consolidated Rail Corp. v. Gottsall , 512 U.S. 532, 533 (1994) (quoting Rogers , 352 U.S. at 506);

Gautreaux

, 107 F.3d at 335 (quoting Ferguson v. Moore-McCormack Lines, Inc.

, 352 U.S. 521, 523

(1957) (applying same standard in Jones Act case)).

In this case, Rivera’s expert, Dr. Legrand, testified on direct that it was more than likely that

Rivera herniated his disk on July 17, 2001, when, in the course of attempting to lift the 35-pound rail

shear, Rivera heard a pop and was brought to his knees in pain. Dr. LeGrand further testified that

a person suffering from lower back pain would likely suffer further injury if he were to perform heavy

manual labor while the tissue is affected or fatigued.

Rivera presented circumstantial evidence supporting Dr. LeGrand’s opinion. Rivera

introduced evidence that he underwent physical examinations on June 28, July 3, and July 6. On each

occasion, he was diagno sed with low back strain, yet not one of the pre-July 17 medical reports

indicates that the examining doctor even suspected a herniated disk. By contrast, when Dr. LeGrand

saw Rivera soon after the July 17 inc ident , he t o ld Rivera that a “lumbar MR scan would be

advisable” if Rivera’s condition did not improve in two weeks. Further, it was undisputed that13

Rivera’s back condition significant ly deteri orated as of Ju ly 17. Although Rivera had a sore back

prior to July 17, on that date he was rendered disabled, had to be carried off on a stretcher, and later

had to undergo back surgery.

In support of its position, Union Pacific urges this Court to disr egard Dr. LeGrand’s

testimony, arguing that because his opinion rested on the false representation made by Rivera that he

had no back problems prior t o July 17, 2001, the expert’s testimony as to when the herniation

occurred has no probative value. Union Pacific points out that Dr. Ponder, the defense expert,

testified on direct that “within reasonable medical probabilities, the most likely explanation” for

Rivera’s “clinical presentation” was th at “a disk herniation in the lower lumbar regions” was the

source of Rivera’s persistent groin and lower back pain during “late June, 2001,” and thus pre-existed

the July 17 incident. On cross-examination, however, Dr. Ponder twice conceded that feeling a pop

in on e ’s back coupled with a severe onset of pain

-- as Rivera reported to Dr. LeGrand and in the

accident report to the railroad --“would be consistent” with a final herniation of the disk. Dr. Ponder

further agreed that Rivera at least aggravated his back injury on July 17 and had “a great deal more

difficulty at that time.”

Based on the above and our careful review of the entire record in this case, we find that there

was not a complete absence of probative factual evidence on the issue of causation

-- as there must

be to set aside a plain t iff’s jury verdict in a FELA case. S ee Davis, 18 F.3d at 1243 (citing

Bommarito , 929 F.2d at 188). We emphasize that Rivera is entitled to recovery under the FELA if

he adduced merely “some” probative eviden ce t hat Union Pacific’s “negligence played any part --

however small -- in the development of his condition.” Davis , 18 F.3d at 1243 & n.17 (noting that

t he jury is even “entitled to infer causation from unexplained events” ( citing Landry v . Two R.14

Drilling Co.

, 511 F.2d 138, 142 (5th Cir. 1975) (internal citation omitted)). Although Union Pacific

presented evidence that Rivera failed to disclose his history of back and groin pain to Dr. LeGrand,

the difficult

y with the railroad’s argument is that the jury had all of this information before it. Indeed,

the railroad’s able counsel had the opportuni ty to, and did in fact attempt to impeach Dr. LeGrand’s

testimony on cross. Nonetheless, the jury chose to credit the testimony of Rivera and his witnesses.

As noted above, it is not the task of this Court to reconsider the evidence or assess the credibility of

witnesses, and we do not find that the evidence adduced by Rivera was so lacking as to prohibit the

jury from finding a causal nexus between the railroad’s assignment of Rivera to the destressing project

on July 17 and Rivera’s back herniation. S ee Lane

, 241 F.3d at 446; Davis

, 18 F.3d at 1243 & n.17;

Hasham v. California State Bd. of Equalization

, 200 F.3d 1035, 1047 (7th Cir.2000) (declining to

revisit the jury’s decision to credit the plaintiff’s testimony that he sustained injury as a result of his

employer’s negligence notwithstanding the fact that the defendant had offered into evidence a video

showing the plaint iff engaging in activity which allegedly was inconsistent with his claimed injury and

had offered evidence that the plaint iff had lied under oath about his criminal history (citing U nited

States v. Hickok

, 77 F.3d 992, 1006 (7th Cir.1996)). We therefore are convinced that the district

court did not err in denying Union Pacific’s motion for judgment and further agree with the district

court that the railroad is not entitled to a new trial.

CONCLUSION

For the foregoing reasons, we find that there was a “legally sufficient evidentiary basis for a

reasonable jury” to render a verdict for Rivera in this case, and thus the district court properly denied

Union Pacific’s Rule 50 motion for judgment. We further find that the district court did not abuse15

its discretion in denying Union Pacific’s alternative motio n fo r a new trial. The judgment of the

district court, and its order denying a new trial, are therefore affirmed.

AFFIRMED.