IN THE COURT OF APPEALS OF IOWA

No. 15-0908

Filed November 9, 2016

FRANKLIN DAVID BARKER,

Plaintiff-Appellee,

vs.

UNION PACIFIC RAILROAD COMPANY,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, Douglas F. Staskal, 

Judge.

Union Pacific Railroad Company appeals the judgment entered following a 

jury’s award of damages to Franklin Barker on his claim under the Federal 

Employers’ Liability Act. AFFIRMED.

Thomas A. P. Hayden of Hayden Reinhart, L.L.C., Pittsburgh, 

Pennsylvania, Alice E. Loughran of Steptoe & Johnson L.L.P., Washington, DC,

and Bruce E. Johnson of Cutler Law Firm, P.C., West Des Moines, for appellant.

Christopher H. Leach and Gene C. Napier of Hubbell Law Firm, L.L.C., 

Kansas City, Missouri, and Joseph M. Galligan of Galligan Reid, P.C., Des 

Moines, for appellee.

Heard by Vaitheswaran, P.J., and Potterfield and Bower, JJ.
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VAITHESWARAN, Presiding Judge.

Franklin Barker worked as a conductor for Union Pacific Railroad 

Company. After developing a condition affecting his kidneys, he sued the 

company under the Federal Employers’ Liability Act (FELA), alleging he was 

required to perform “dangerously excessive amounts of work.” Union Pacific 

defended in part by asserting Barker’s genetic makeup made him susceptible to 

the condition. A jury awarded Barker $3,543,716. On appeal, Union Pacific 

contends (1) Barker failed to prove negligence or “present sufficient evidence on 

causation”; (2) the district court erred “by allowing expert testimony [from a 

treating physician] on causation”; and (3) the jury instructions were “erroneous 

and highly prejudicial.” 

I. Negligence and Causation

The jury was instructed Barker would have to prove the following elements 

of his claim:

1. [Union Pacific’s] employees were negligent by failing to 

provide a reasonably safe workplace for [Barker].

2. [Union Pacific’s] negligence played any part in causing 

[Barker’s] injury and damages.

3. The nature and amount of damages.

Union Pacific takes issue with the first two elements of this instruction. Our 

review is for substantial evidence. See Dudley v. Ellis, 486 N.W.2d 281, 283 

(Iowa 1992) (“If there is substantial evidence to support each of the elements of a 

plaintiff’s claim, a motion for directed verdict or for judgment notwithstanding the 

verdict should be denied.”).
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A. Negligence

The jury was instructed negligence means “the failure to use ordinary 

care.” See Fletcher v. Union Pac. R.R. Co., 621 F.2d 902, 909 (8th Cir. 1980)

(“The railroad is negligent if it knew or should have known that its assignment 

exposed the employee to an unreasonable risk of harm.”). A reasonable juror 

could have found the following facts. 

A minute before midnight on a cold night in January, Barker was assigned 

to a railroad yard in Ames. The person who had trained him to work in this yard 

recommended “that anyone that hasn’t worked that yard with familiarity get a 

pilot[1]or someone that is more familiar with the yard than they are.” The training 

supervisor testified Barker “did not have the experience to be working that yard 

by himself.” He said he “probably instructed” Barker that, if he was unsure about 

something, “he should ask anybody, not just the manager, engineer, make a 

phone call, call up the dispatcher and say, I am having problems.” He 

acknowledged “[m]anagers are very hard to get ahold of.” 

Barker confirmed that his training supervisor told him, “Don’t come back to 

[the Ames] yard without a pilot or some other form of help. . . . This is too big a 

job for one person.” When Barker received the assignment, he told the crew 

caller he was “not real familiar with that job” and he “needed help with it.” The 

crew caller responded, “Your engineer has worked that yard a hundred times, 

and he will know everything you need for the job.” Barker “did not get a pilot.”

Barker completed the Ames job “just before noon.” The job required 

Barker to walk approximately ten miles in the cold and snow, kneel to grab and 

 

1 According to Barker, “A pilot is an experienced conductor that can help with the work.”
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couple air hoses, fix air leaks along the way, reposition the train, and climb up 

and down the cars to pull and release hand levers and brakes. 

At the end of his shift, Barker “noticed some stiffness and soreness.” After 

returning to his home base, he was “very sore” and “[c]ould hardly stand up.” 

Barker “knew he was hurting,” and he told his manager the “job was way too 

difficult for one man to handle on his own.” Barker subsequently experienced 

kidney failure, which, according to his physician Dr. Thomas, was caused by a 

muscle breakdown condition known as rhabdomyolysis.

A railroad safety consultant called by Barker testified that Barker was 

required to place ninety-six railroad cars together “in three tracks and they had to 

be doubled over to put them in one track and then once again separated 

because there wasn’t room to get around them so there was quite a maneuver to 

accomplish all that.” The consultant opined that Barker was required to perform 

“a tremendous amount of work” and 

with the incidentals like having to stop and walk again . . . plus the

getting on and off the cars and the engines and all the hand brake 

sets and releases, ultimately the extra amounts of walking that had 

to be done and the air brake problems that took place, it was a 

phenomenal amount of work for the amount of time in which it was 

done. 

He stated that, in his forty-five years in the business, he had never seen “this 

much work done or even assigned to a one-man crew or probably even a twoman crew.” He continued, “Mr. Barker was given more work to do than should 

reasonably have been expected of a person” and it should have been “well 

known” to Union Pacific that the amount of assigned work could lead to injury.
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He reiterated it “was extremely excessive for them to expect that amount of work 

out of one man in that location.” 

The jury reasonably could have found that Union Pacific failed to use 

ordinary care in assigning Barker work. The record contains substantial 

evidence to support the negligence element.

B. Causation

“FELA’s language on causation . . . ‘is as broad as could be framed.’” 

CSX Transp., Inc. v. McBride, 564 U.S. 685, 691 (2011) (citation omitted). The 

statute provides for “a relaxed standard of causation.” Id. (citation omitted). The 

test “is simply whether the proofs justify with reason the conclusion that employer 

negligence played any part, even the slightest, in producing the injury or death 

for which damages are sought.” Id.; accord Fletcher, 621 F.2d at 909 (“The test 

of causation under the FELA is whether the railroad’s negligence played any 

part, however small, in the injury which is the subject of the suit.”). 

As noted, Dr. Thomas treated Barker for kidney failure, which he opined 

was caused by rhabdomyolysis. He explained that Barker’s “muscle enzymes in 

the blood were very elevated” and “his muscle had severely broken down.” He 

also testified the kidney damage was “permanent” and “progressive.” When 

asked about Barker’s later-diagnosed genetic condition known as LCHAD, he 

opined that Barker never manifested anything consistent with this condition. In 

his view, the level of exertion Barker described would have caused 

rhabdomyolysis regardless of any genetic factors. He rhetorically asked, “Why 

would we talk about birth defect when that happened 56 years ago? . . . [T]here 

was a very strong history of severe muscle exertion which is a very known cause 
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of muscle injury. So at that point I did not look for [LCHAD].” He summarized his 

opinion as follows: “Kidney failure obvious. Why? Rhabdomyolysis. Why 

rhabdomyolysis? Muscle exertion.” 

The jury also heard from an expert called by Union Pacific, who discussed 

a case study suggesting LCHAD caused rhabdomyolysis. This expert opined 

that the type of effort expended by Barker was “just not consistent with the 

development of exertional rhabdomyolysis that is laid out in the literature, in the 

scientific and medical literature.” 

The jury reasonably could have afforded Dr. Thomas’ testimony more 

weight, given his first-hand knowledge of Barker’s condition. See State v. 

Jacobs, 607 N.W.2d 679, 686 (Iowa 2000). The record contains substantial 

evidence to support the causation element. See Easton v. Howard, 751 N.W.2d 

1, 5 (Iowa 2008) (“When reasonable minds would accept the evidence as 

adequate to reach the same findings, evidence is substantial.”). 

II. Dr. Thomas’ Qualifications 

Union Pacific challenges Dr. Thomas’ qualifications as an expert. The 

company argues his testimony “implicated at least three different scientific 

fields—genetics, physiology, and nephrology—and it is undisputed he lacked 

qualifications in two of those fields.” The district court rejected this argument,

reasoning, as follows: “The testimony at issue is from a board-certified kidney 

specialist about a recognized medical condition affecting kidneys. It is not 

testimony about some novel scientific or technical theory.” Our review of this 

ruling is for an abuse of discretion. See Ranes v. Adams Labs., Inc., 778 N.W.2d 

677, 685 (Iowa 2010).
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Iowa has long been committed to a “liberal view on the admissibility of 

expert testimony.” Quad City Bank & Tr. v. Jim Kircher & Assocs., P.C., 804 

N.W.2d 83, 92 (Iowa 2011). But even if our state espoused a more stringent 

standard, Dr. Thomas would have easily satisfied that standard. Union Pacific 

concedes Dr. Thomas’ expertise in kidney disease. His medical education, 

internship in internal medicine, and experience with direct patient care also 

afforded him expertise in physiology and genetics. In light of his background, the 

district court did not abuse its discretion in finding Dr. Thomas well-qualified to 

opine on Barker’s condition. 

III. Jury Instructions

Union Pacific contends (A) the jury should have been instructed to 

apportion damages based on Barker’s “preexisting condition” of LCHAD; (B) an 

instruction withdrawing assumption-of-risk as an issue was misleading; (C) the 

jury should have received a foreseeability instruction; and (D) the jury should 

have received a mitigation-of-damages instruction. Our review is on error. See 

Rivera v. Woodward Res. Ctr., 865 N.W.2d 887, 891 (Iowa 2015). 

A. Apportionment Instruction

Union Pacific requested the following apportionment instruction:

There has been evidence that [Barker] had a genetic 

disease, Long-Chain 3-Hydroxyacyl-CoA Dehydrogenase 

Deficiency (“LCHAD”), that pre-existed the events that are the 

subject of this lawsuit. In your deliberations, if you find for [Barker], 

you should distinguish between the amount of damages sustained 

by [Barker] as a result of the injuries claimed in this case and the

amount of damages sustained by [Barker] as a result of his preexisting conditions. [Barker] is not entitled to any damages you 

have determined are the result of his pre-existing conditions. Any

award must not include damages that, because of [Barker’s]

preexisting LCHAD disease condition, probably would have 
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occurred anyway in the future if [Barker] had not had his first 

episode of rhabdomyolysis on January 30, 2007.

In declining to give this instruction, the district court reasoned in part as 

follows:

Apportionment may have been appropriate if Barker had 

manifested some known disability as a result of his LCHAD that 

was aggravated by the work performed for the railroad. However, 

there is no evidence in this case that Barker knew he had LCHAD 

or that he suffered some identifiable disability as a result of having 

LCHAD. Rather, this is a classic case for the “eggshell plaintiff” 

instruction, which was given. 

The court’s reasoning finds support in Waits v. United Fire & Casualty Co., 572 

N.W.2d 565 (Iowa 1997). There, our supreme court considered an instruction

similar to Union Pacific’s proposed instruction. The court stated:

[The] mere existence of a prior non-disabling, asymptomatic, latent 

condition is not a defense. A tort-feasor whose act, superimposed 

upon such a condition, results in an injury may be liable in damages 

for the full disability. In these cases the injury, and not the dormant 

condition, is deemed to be the proximate cause of the pain and 

disability.

Waits, 572 N.W.2d at 577 (citation omitted). As Union Pacific points out, Waits is

not a railroad case under FELA. Nonetheless, the quoted language is instructive 

and finds support in FELA cases. See McLaughlin v. BNSF Ry. Co., 300 P.3d 

925, 935 (Colo. App. 2012) (“Giving an aggravation instruction is not appropriate 

where the pre-existing condition was asymptomatic, but is appropriate where 

there is evidence that the plaintiff had previously suffered pain or symptoms from 

the condition, and the condition allegedly was aggravated by the incident.”); cf.

Stevens v. Bangor & Aroostook R.R. Co., 97 F.3d 594, 601, 603 (1st Cir. 1996) 

(“[I]f the factfinder cannot separate injuries caused or exacerbated by the 

accident from those resulting from a pre-existing condition, the defendant is liable 
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for all such injuries.”); Sauer v. Burlington N. R.R. Co., 106 F.3d 1490, 1494-95 

(10th Cir. 1996) (finding “evidence that a substantial, identifiable portion of [the 

plaintiff’s] injuries was not attributable to” the defendant).

Turning to the record, Dr. Thomas testified that Barker “did not manifest 

any signs of LCHAD prior to this episode.” Dr. Thomas explained, 

Rhabdomyolysis can occur when somebody has LCHAD but when 

somebody has LCHAD the rhabdomyolysis should start at a very 

young age: Infancy, childhood, teenage. The fact that he never had 

any such manifestation in his entire lifetime up to the age of 55 tells 

me that . . . he has had no manifestations of LCHAD. 

He also noted that the geneticists who diagnosed Barker with LCHAD “did not 

comment that that was the cause of his muscle breakdown or that is the cause of 

his muscle breakdown.” Because Barker’s LCHAD was latent, the district court 

had no obligation to give Union Pacific’s proposed instruction. See Sleeth v.

Louvar, 659 N.W.2d 210, 216 (Iowa 2003) (noting “defendant point[ed] to no 

evidence that [the plaintiff] had any disability or pain prior to the accident”);

Becker v. D & E Distrib. Co., 247 N.W.2d 727, 731 (Iowa 1976) (noting the 

plaintiff’s “prior foot condition was asymptomatic before the collision and 

consequent leg injury” and “it was not disabling in any way”).

In any event, the damages instruction given by the court exhorted the jury 

to assess only the amount “caused in any part by the defendant’s negligence, as 

proved by the evidence.” This instruction captured the concept Union Pacific 

hoped to convey through its proposed instruction. See Lancaster v. Norfolk & W.

Ry. Co., 773 F.2d 807, 823 (7th Cir. 1985) (noting the damages instruction was 

“sufficiently general to allow . . . the jury to adjust damages downward for the 

probability that something other than tortious misconduct would have triggered 
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[the plaintiff’s] latent schizophrenia”). We conclude the district court did not err in 

declining to give the jury Union Pacific’s proposed instruction on apportionment 

of damages.

B. Assumption-of-Risk Withdrawal Instruction

The jury was instructed, “The law does not require that [Barker] assume 

the risks of his employment.” Union Pacific characterizes this instruction as a 

withdrawal of the assumption-of-risk defense. The railroad concedes assumption 

of risk is not a viable defense in FELA cases and acknowledges the instruction is 

a correct statement of the law.2The railroad simply argues it solicited no 

evidence that Barker assumed the risk of his injury and, accordingly, the court 

should not have given the instruction. 

To the contrary, Union Pacific elicited testimony from one of its managers 

regarding the level of work performed by employees and the type of assistance 

available to them. On direct examination by Union Pacific’s attorney, the 

manager testified, “You could refuse the job and . . . they would probably call you 

in and ask you about. But, you know, . . . that’s what you’re hired to do is pick up 

a train by yourself.” This testimony alone was sufficient to support the 

assumption-of-risk-withdrawal instruction. But there was more. As the district 

court stated:

 

2

45 U.S.C. section 54 provides:

In any action brought against any common carrier under or by 

virtue of any of the provisions of this chapter to recover damages for 

injuries to . . . any of its employees, such employee shall not be held to 

have assumed the risks of his employment in any case where such injury 

. . . resulted in whole or in part from the negligence of any of the officers, 

agents, or employees of such carrier; and no employee shall be held to 

have assumed the risks of his employment in any case where the 

violation by such common carrier of any statute enacted for the safety of 

employees contributed to the injury . . . of such employee.
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The combination of factors of the railroad’s emphasis in its defense 

on the facts that the plaintiff was performing only duties that were 

part of his normal job, that he did not himself believe he was overexerting himself, that his injuries were the consequence of a 

genetic condition and not over-exertion and the testimony of an 

engineer that for the plaintiff to ask for help would have been “going 

totally against what you agreed to when you were hired,” led the 

court to conclude the assumption-of-risk instruction was warranted. 

We discern no error in the court’s ruling.

C. Foreseeability Instruction

Union Pacific proposed the addition of language to the instruction defining 

negligence. Specifically, the railroad sought a paragraph highlighting its inability 

to foresee Barker’s genetic condition. 

“‘[R]easonable foreseability of harm’ . . . is indeed ‘an essential ingredient 

of [FELA] negligence.’” CSX Transp., Inc., 564 U.S. at 703 (emphasis and 

citation omitted) (alterations in original). “If negligence is proved, however, and is 

shown to have ‘played any part, even the slightest, in producing the injury,’ then 

the carrier is answerable in damages even if ‘the extent of the [injury] or the 

manner in which it occurred’ was not ‘[p]robable’ or ‘foreseeable.’” Id. at 703-04

(emphasis and citation omitted) (alterations in original). As our highest court 

stated, “[I]t is clear that Congress intended to greatly lower the bar for injured 

workers covered by the act, and to liberally allow recovery in cases that would 

not be allowed under general principles of tort law.” Klein v. Chi. Cent. & Pac.

R.R. Co., 596 N.W.2d 58, 60 (Iowa 1999). Under this standard, the district court 

did not err in declining to amplify the jury instruction on negligence with additional 

facts detailing Union Pacific’s claimed inability to foresee Barker’s genetic 

condition. 
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D. Mitigation-of-Damages Instruction

Union Pacific contends the district court erred in refusing to give its 

proposed mitigation-of-damages instruction. The district court thoroughly 

addressed this issue as follows:

While there is no doubt that a plaintiff is required to take 

reasonable steps to mitigate damages, the evidence in this case 

did not warrant giving such an instruction. As to Barker’s [two day] 

delay in seeking medical treatment, there is no evidence that he 

acted unreasonably by not seeking care sooner. While the 

reasonableness of a delay in seeking care might not be the subject 

of expert testimony the evidence, in the court’s view, would not 

have warranted even a lay conclusion of unreasonableness in 

Barker’s conduct in seeking medical care. More importantly, 

however, is the fact that there is no evidence that any delay 

contributed to a worsening of Barker’s damages. The same 

observation is true with respect to his failure to follow the 

recommended [low-fat] diet—there is no evidence that this failure 

contributed to his damages in any way.

We discern no error in this ruling.

Finding substantial evidence to support the elements of Barker’s cause of 

action, no abuse of discretion in the district court’s refusal to disqualify Dr. 

Thomas, and no error in the challenged jury instructions, we affirm the jury award 

in favor of Barker.

AFFIRMED.