Appeal from the United States District Court for the Central District of California; D.C. No. CV-87-2349-PAR; George H. King, Magistrate Judge, Presiding.
Reinhardt and Fernandez, Circuit Judges, and Fern M. Smith, District Judge.*fn** Reinhardt, Circuit Judge, dissents.
This is an appeal from a denial of plaintiff-appellant's motion for a new trial after the jury returned a defense verdict. Plaintiff-appellant Anthony Roberts brought an action under the Federal Employer's Liability Act ("FELA"), 45 U.S.C.A. 51 et seq., and the Boiler Inspection Act ("BIA"), 45 U.S.C.A. § 23 et seq., against his long-time employer, Union Pacific Railroad, after he was diagnosed with hearing loss allegedly stemming from on-the-job noise exposure.
The trial court's denial of the motion for a new trial is affirmed.
Anthony Roberts worked for Union Pacific for nearly thirty years, except for a three-year period in the late 1980's. He spent much of his career as a switchman in train yards in and around Los Angeles. Roberts also worked for about three years as a brakeman on Union Pacific freight cars traveling throughout southern California. He usually rode in the cab, but sometimes rode in the caboose.
Switchmen are often exposed to loud noises on the job. The engines, horns, air brake releases, and metal on metal screeches of trains coming to a halt on the tracks all contribute to the din in the yard. Brakemen are also exposed to constant noise. The horn on the roof of the cab is very loud, as is the noise of the train on the rails.
Between July 1985 and September 1988, Roberts went on disability for health reasons. He suffers from diabetes, high cholesterol, high blood pressure, and related disorders.
Roberts has some hearing loss. In the mid-1960's, he sustained a severe, chronic middle ear infection in his left ear; he underwent surgery to remove the infection and repair structural problems that the infection had caused. Tests conducted in August 1985 established "mild" hearing loss in both ears, with a greater deficiency in the left ear. He wears hearing aids.
Union Pacific instituted a voluntary hearing conservation program in 1987, over twenty years after Roberts started working there. It does not require workers on the trains and in the yards to wear earplugs, but it does not prohibit their use.
The federal government regulates noise levels in the railroad industry. The Federal Railroad Administration and the Occupational Safety and Health Administration have mandated a 90 decibel time-weighted average for railroad workers.*fn1 The regulations also prohibit exposure of more than one second to noise above 115 decibels.
Roberts brought an action against Union Pacific in 1987 under FELA and the BIA. He alleged that his exposure to noise on ...