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March 16, 2026 Get Citation Alerts Download PDF Add Note

Norfolk Southern Railway Company v. Scott Sporner

Indiana Court of Appeals

• Citations: None known
• Docket Number: 25A-CT-01138
• Judges: May, Foley, Altice

• Disposition: Affirmed

• Opinion

• Authorities (7)

• Cited By (0)

• Summaries (0)

• Similar Cases (1.3K)

• PDF

Disposition

Affirmed

Combined Opinion

                        by Judge Foley

FILED
Mar 16 2026, 8:49 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

IN THE

Court of Appeals of Indiana
Norfolk Southern Railway Company,
Appellant-Defendant

v.

Scott Sporner,
Appellee-Plaintiff

March 16, 2026
Court of Appeals Case No.
25A-CT-1138
Appeal from the Elkhart Superior Court
The Honorable Christopher J. Spataro, Judge
Trial Court Cause No.
20D05-2104-CT-63

Opinion by Judge Foley
Judges May and Altice concur.

Court of Appeals of Indiana | Opinion 25A-CT-1138 | March 16, 2026 Page 1 of 23
Foley, Judge.

[1] Following a jury trial, Norfolk Southern Railway Company (“Railroad”) was

found liable for physical and economic injuries sustained by its employee, Scott

Sporner (“Employee”), and ordered to pay damages. Railroad appeals the

denial of its motion to correct error, which challenged the denial of its motion

for judgment on the evidence. Railroad maintains that it was entitled to

judgment on the evidence, presenting the following restated issues for review:

I. Whether the Federal Railroad Safety Act (“FRSA”)
precluded Employee’s claim that Railroad is liable in tort
under the Federal Employers’ Liability Act (“FELA”) for
negligently operating a train with a one-man crew; and

II. Whether sufficient evidence supported Employee’s claim
to future lost wages.

[2] We affirm.

Facts and Procedural History
[3] On the evening of January 4, 2021, Employee was working in Railroad’s

railyard in Elkhart, Indiana, as a Remote Control Operator (“RCO”). He was

working as a one-man crew, controlling a train with a handheld device. During

Employee’s shift, the yardmaster directed Employee to move his train in an

eastward direction, not realizing that Railroad had a stationary train positioned

farther eastward on the same track. Employee complied and started moving his

train eastward. When moving the train, Employee was not positioned to keep a

Court of Appeals of Indiana | Opinion 25A-CT-1138 | March 16, 2026 Page 2 of 23
lookout in front of the train. Rather, Employee was aboard the westernmost

locomotive, farthest from the direction of travel. At approximately 6:50 p.m.,

Employee’s train collided with the other train, seriously injuring Employee.

[4] On April 1, 2021, Employee filed a lawsuit against Railroad under FELA,

which confers a private right of action to railroad employees. Employee

ultimately alleged that Railroad or its agents were liable for negligently causing

the train-on-train collision. 1 Employee sought compensation for various

damages, including future lost wages based upon his total vocational disability.

[5] A jury trial was held over multiple days in March 2025. During Employee’s

opening statement, Employee informed the jury that, “years ago,” there were

larger railroad crews. Tr. Vol. 2 p. 97. That is, railroads used to have “a

locomotive engineer running the train and then the conductor sitting next to

him,” so there were “two guys who are in charge.” Id. at 94–95. Employee

told the jury that, because Railroad “eliminated” positions, Railroad now

operated at the Elkhart Yard with one-man RCO crews. Id. at 95. After

opening statements, the trial court met with counsel outside the presence of the

jury. Railroad asserted that “[a] statement was made” during opening

statements that “was a criticism of having . . . only one RCO,” but “federal

regulations . . . allow for one RCO . . . .” Id. at 127. Railroad argued that a

negligence claim based on a one-man crew “would be precluded by federal

1
The complaint was amended in April 2024. However, the amended complaint was not provided on appeal.

Court of Appeals of Indiana | Opinion 25A-CT-1138 | March 16, 2026 Page 3 of 23
law.” Id. Railroad said that it would like to “raise an objection . . . governing

future evidence in the trial” and get this issue “on the record . . . .” Id.

[6] Employee agreed that Railroad was “permitted by federal law to have a single

RCO doing all this work . . . .” Id. However, Employee argued that “[w]hether

they’re permitted to or not by law is not the issue” in that a jury could find that

using a one-man RCO crew at a busy railyard is “not what a reasonably safe

railroad would do.” Id. at 128. The trial court overruled Railroad’s objection,

noting: “[I]f there is federal law that says one operator is allowed or you need

only have one RCO for instance, I don’t think that [it] prohibits [Employee]

from arguing in addition to the one RCO, there should be a conductor, an

engineer, or a u-man” or that “under the circumstances there might be

something more reasonable.” Id. at 129.

[7] At trial, Employee testified that he was physically injured in the train collision,

with injuries to his shoulder, hip, and head. He presented testimony from

multiple treating physicians, including Dr. Christopher Jordan (“Dr. Jordan”),

whose recorded deposition was played in court. 2 Dr. Jordan evaluated

Employee on February 5, 2021, approximately one month after the collision,

and determined that Employee “sustained a concussion and may be dealing

with postconcussive syndrome or continued symptoms beyond the initial

concussion or head injury.” Appellant’s App. Vol. 2 pp. 42–43. Employee was

2
The video was not transmitted on appeal. The parties instead rely on a deposition transcript provided in the
Appendix. See Appellant’s App. Vol. 2 pp. 36–72.

Court of Appeals of Indiana | Opinion 25A-CT-1138 | March 16, 2026 Page 4 of 23
seen again on March 5, 2021, complaining of “visual symptoms as well as

headaches and sensitivity to noise,” with those symptoms scored as severe. Id.

at 43. Employee also exhibited “challenges . . . with balance.” Id. at 46. These

symptoms were consistent with being in a train-on-train collision. Employee

was referred to a neurologist, who found that Employee had “persistent

headaches as well as other persistent symptoms after sustaining the concussion .

. . .” Id. at 47. Employee also saw an otolaryngologist, who diagnosed him

with bilateral tinnitus stemming from a traumatic brain injury sustained during

the collision. The otolaryngologist opined that the tinnitus is permanent.

[8] Dr. Jordan was asked whether Employee’s symptoms were “chronic or

permanent and have plateaued . . . .” Id. at 48. Dr. Jordan said: “That would

be my -- my opinion, yes.” Id. He added: “[I]t’s a very unfortunate situation

for him, you know. He has chronic persisting symptoms that I think he will

have to manage on some level indefinitely.” Id. at 49. Dr. Jordan noted that

Employee had “gone to lengths” to manage his symptoms, including “meeting

with psychiatrists, meeting with behavioral therapists,” and following advice

from Dr. Jordan and the neurologist. Id. He explained that “those will likely

be lifelong strategies that he’ll have to use in some capacity to help manage his

life at this point.” Id. Although Employee’s neurological symptoms persisted,

he underwent successful surgeries to repair injuries to his shoulder and hip.

[9] Employee planned to present expert testimony from Delores Gonzalez

(“Gonzalez”), a vocational rehabilitation counselor, as to his employability.

He also planned to present expert testimony from Jeffrey Opp (“Opp”), a

Court of Appeals of Indiana | Opinion 25A-CT-1138 | March 16, 2026 Page 5 of 23
forensic economist who reviewed Gonzalez’s report and calculated Employee’s

economic damages. Railroad filed a motion to exclude all of Gonzalez’s

testimony as well as testimony from Opp regarding future wage loss, arguing

there was a lack of foundation to admit the expert testimony. Railroad claimed

that Gonzalez’s opinion about Employee’s vocational prospects relied on a

medical opinion from Dr. Jordan that was found in medical records but not

elicited in Dr. Jordan’s deposition testimony. Railroad argued that, as a result,

there was a lack of foundation to admit the challenged testimony from

Gonzalez and Opp: “Completely absent from the record is any medical opinion

or testimony that [Employee] is unable to work or even restricted in his ability

to work, but this is precisely the evidence needed as foundation for the expert

opinions challenged here.” Defendant’s Motion to Exclude the Testimony of

Delores Gonzalez and Selected Testimony of Jeffrey Opp at 2, Sporner v. Norfolk

S. Ry. Co., No. 20D05-2104-CT-63 (Elkhart Sup. Ct. Mar. 5, 2025). 3

[10] The trial court denied Railroad’s motion to exclude the expert testimony,

reasoning that “an expert witness can . . . give opinions based on sets of facts or

hypothetical facts” and “if it turns out that the hypothetical facts on which

either of these two witnesses rely do not come into evidence,” then Railroad “is

certainly free to, not only impeach the witnesses[,] but also to argue in closing

3
The motion was not transmitted on appeal but is available in the Odyssey case-management system.

Court of Appeals of Indiana | Opinion 25A-CT-1138 | March 16, 2026 Page 6 of 23
argument that the jury should completely disregard [their] opinions . . . because

they were based on facts that never came into evidence.” Tr. Vol. 3 p. 11.

[11] Employee later presented live testimony from Opp, along with deposition

testimony from Gonzalez, which was read into the record. Railroad objected at

pertinent times throughout the experts’ testimony, maintaining that there was a

lack of foundation due to the underlying reliance on a medical opinion not

contained in Dr. Jordan’s testimony. The trial court overruled these objections.

[12] Gonzalez testified that she “was asked to evaluate [Employee] to assess his

employability and potential for vocational rehabilitation.” Id. at 59. In

assessing Employee’s employability, Gonzalez reviewed “all of the medical

records . . . .” Id. at 60. Gonzalez said there was “information from Dr.

Jordan,” who “said [Employee] was permanently disabled from his regular . . .

occupation” and “has cognitive challenges that lead to lapses in memory and

concentration.” Id. at 68. Based on her review of the medical records,

Gonzalez concluded that Employee “was not a candidate for vocational

rehabilitation” in that “he was not . . . currently capable of any competitive

work as a direct result of the work injury . . . .” Id. at 73. Gonzalez prepared

an expert report containing this opinion. As to economic damages, Opp

testified that he relied on Gonzalez’s report “as it relates to [Employee’s] ability

to work.” Id. at 21. Opp understood that Employee could not return to gainful

employment, resulting in “future los[t] earnings [of] $2,009,492.” Id. at 34.

Court of Appeals of Indiana | Opinion 25A-CT-1138 | March 16, 2026 Page 7 of 23
[13] After Employee presented his case-in-chief, Railroad moved for judgment on

the evidence on two grounds. First, Railroad focused on “any legal theory or

argument or any potential liability based on an RCO crew of one person,”

arguing this theory of negligence was precluded by federal law. Tr. Vol. 4 p. 35.

Railroad referred to two federal statutes applicable to the railroad industry—

FRSA, which is a regulatory statute, and FELA, which confers a private right

of action to railroad employees. Interpreting these statutes, Railroad argued

that “FRSA specifically authorized one[-person] crews and because of the

interplay between [] FELA and [] FRSA, [] FRSA is going to preclude finding

a[] FELA violation for something that . . . FRSA specifically authorizes.” Id.

Employee responded that, in light of the United States Supreme Court’s

reasoning in POM Wonderful LLC v. Coca-Cola Co., 573 U.S. 102 (2014), a

preclusion case involving different statutes, “FRSA cannot preclude a[] FELA

claim because they’re equal federal statutes and there’s no express preclusion

provision in it.” Tr. Vol. 4 p. 36. At oral argument on the motion, Railroad

asserted that, after the POM Wonderful decision, no controlling authority “ha[d]

interpreted the preclusive effect of FRSA on FELA.” Tr. Vol. 4 p. 41.

[14] As a separate ground for judgment on the evidence, Railroad argued that

Employee “has not provided evidentiary support for future wage losses

premised on a total inability to work” and, therefore, failed to prove this type of

economic damage with reasonable certainty. Appellant’s App. Vol. 2 p. 82.

Railroad argued that “Opp’s future wage losses relied on medical testimony as

transmitted through the medium of the Gonzalez report” and the record was

Court of Appeals of Indiana | Opinion 25A-CT-1138 | March 16, 2026 Page 8 of 23
devoid of “any medical opinion or testimony that [Employee] is unable to work

or even restricted in his ability to work.” Id. at 83 (emphasis added). Railroad

further argued that Employee “has not provided a foundation for [Gonzalez’s]

findings of total disability[,] and therefore[,] has failed to meet his evidentiary

burden with regards to his claimed future wage and benefits losses.” Id.

[15] The trial court ultimately denied the motion for judgment on the evidence. As

to the preclusion issue, the trial court concluded that Employee could pursue a

crew-size theory of negligence because “[n]either the plain text of [] FRSA nor

its goal of national uniformity demand preclusion of FELA claims,” but rather,

“FRSA and the purposes underlying both it and FELA demand the opposite.”

Tr. Vol. 4 p. 44. As to Railroad’s challenge to the evidence of future lost wages,

the trial court said it was denying the motion “for the same reasons” it

mentioned in denying Railroad’s motion to exclude testimony from Gonzalez

and Opp. Id. at 45. The court referred to Indiana Evidence Rules 703 and 705

and determined that, under these rules, “an expert may state an opinion and

give the reason for it without first testifying as to underlying facts or data” and

“experts may testify to opinions based on inadmissible evidence provided that

it’s the type reasonably relied upon by experts in the field.” Id. The trial court

added that it believed Gonzalez “was capable within her scope as an expert in

the field of vocational rehab and having made thousands of disability

determinations to render the opinions that she rendered.” Id.

[16] The jury later found Railroad negligent, apportioning 60% of the fault to

Railroad and 40% of the fault to Employee. It determined that Employee

Court of Appeals of Indiana | Opinion 25A-CT-1138 | March 16, 2026 Page 9 of 23
sustained damages totaling $8.2 million. On March 11, 2025, the trial court

entered judgment, ordering Railroad to pay Employee $4,920,000 in damages.

[17] On April 9, 2025, Railroad filed a motion to correct error, which focused on the

denial of its motion for judgment on the evidence. Railroad argued that “a new

trial on liability and damages is warranted because the verdict may rest on

[Employee’s] theory that more than one crew member should have been

assigned to his remote-control locomotive”—a theory “precluded under federal

law.” Appellant’s App. Vol. 2 p. 86. In the alternative, Railroad sought a new

damages trial because “the evidence cannot rationally support an $8.2 million

gross verdict” and “[t]he outsized award necessarily depends on evidentiary

errors.” Id. at 87. Railroad argued that the “expert testimony regarding

[Employee’s] future lost wages rested entirely on the assumption that

[Employee] was totally disabled and completely incapable of performing any

work,” but “no admissible evidence or testimony supported that assumption.”

Id. Railroad asserted that Gonzalez “improperly served as the mouthpiece for

the doctors’ unadmitted medical opinions,” which “she (as a vocational

rehabilitation specialist) was not qualified to evaluate.” Id. at 101. Railroad

ultimately claimed a new damages trial was necessary because the award

“rested at least in part on unsubstantiated evidence concerning [Employee’s]

future lost wages . . . .” Id. at 102. On May 2, 2025, the trial court denied

Railroad’s motion to correct error. Railroad now appeals.

Court of Appeals of Indiana | Opinion 25A-CT-1138 | March 16, 2026 Page 10 of 23
Discussion and Decision
[18] Railroad appeals the denial of its motion to correct error, which challenged the

trial court’s denial of its motion for judgment on the evidence. 4 In general, we

review a ruling on a motion to correct error for an abuse of the trial court’s

discretion. B.A. v. D.D., 189 N.E.3d 611, 614 (Ind. Ct. App. 2022), trans. denied.

An abuse of discretion occurs if the court’s decision was clearly against the logic

and effect of the facts and circumstances, or it misinterpreted the law. Auto. Fin.

Corp. v. Liu, 250 N.E.3d 406, 410 (Ind. 2025). Further, in reviewing the trial

court’s ruling on a motion to correct error, we also “consider[] the standard of

review for the underlying ruling.” B.A., 189 N.E.3d at 614. In this case, the

underlying ruling was the denial of the motion for judgment on the evidence.

[19] Trial Rule 50 governs a motion for judgment on the evidence, also known as a

motion for a directed verdict. This type of motion tests the legal sufficiency of

the evidence. Scholl v. Majd, 162 N.E.3d 475, 479 (Ind. Ct. App. 2020), trans.

denied. A party may move for judgment on the evidence “at the close of the

plaintiff’s case if all or some of the issues are ‘not supported by sufficient

evidence.’” Cosme v. Clark, 232 N.E.3d 1141, 1148 (Ind. 2024) (quoting Ind.

Trial Rule 50(A)). Whether a party is entitled to judgment on the evidence is a

4
Throughout appellate briefing, and without explanation, Railroad cites the record in contravention of
Indiana Appellate Rule 22(C). See, e.g., Appellant’s Br. p. 9 (citing “App.V” when the Appendix does not
contain five volumes and the cited content was contained in the fifth volume of the Transcript).

Court of Appeals of Indiana | Opinion 25A-CT-1138 | March 16, 2026 Page 11 of 23
question of law subject to de novo review. Id. at 1152 (noting that “[t]he paper

record alone is enough” to assess the propriety of judgment on the evidence).

[20] At the directed-verdict stage, courts do not weigh evidence or assess witness

credibility, “reserv[ing] the fact-finding function to juries.” Id. at 1149. Instead,

courts view the evidence in a light most favorable to the nonmovant. Id. at

1. In general, a Trial Rule 50 motion “ha[s] the same goal” as a summary

judgment motion—to “withdraw[] issues from the jury when there are no

factual issues for [it] to decide.” Id. In short: “Summary judgment is available

when the nonmovant cannot prove its claim based on the undisputed evidence.

Judgment on the evidence (directed verdict) is available when the nonmovant

has not proved its claim because no reasonable jury could find for it.” Id.

(replaced bold emphasis with italicization). “Thus, just as a self-serving

affidavit can defeat summary judgment, . . . so too can the same self-serving

trial testimony defeat a directed verdict.” Id. at 1150–51.

I. Preclusion
[21] Below, Railroad argued it was entitled to judgment on the evidence as to any

claim premised on a crew-size theory of negligence. 5 Railroad maintained that

federal law precluded this type of claim, and therefore, any claim involving this

negligence theory should have been withdrawn from the jury’s consideration.

5
Given the content on this issue in Railroad’s motion for judgment on the evidence and its subsequent
motion to correct error, we disagree with Employee’s assertion that Railroad failed to preserve this challenge.

Court of Appeals of Indiana | Opinion 25A-CT-1138 | March 16, 2026 Page 12 of 23
Below and on appeal, Railroad focuses on provisions of FRSA and FELA. In

this decision, we follow POM Wonderful and ultimately harmonize FRSA and

FELA, rather than interpret FRSA (the regulatory statute) as precluding claims

under FELA (the statute providing a private right of action to railroad workers).

[22] To resolve this appeal, we must engage in statutory interpretation. We interpret

statutes de novo. ESPN, Inc. v. Univ. of Notre Dame Police Dep’t, 62 N.E.3d 1192,

1195 (Ind. 2016). In doing so, our primary goal is to ascertain and give effect to

legislative intent. Adams v. State, 960 N.E.2d 793, 798 (Ind. 2012). The best

evidence of that intent is the statutory language. Id. When that language is

clear and unambiguous, we simply apply its plain and ordinary meaning. Id.

Further, we read statutes as a whole. ESPN, 62 N.E.3d at 1195. If possible, we

give effect to every word, avoiding interpretations that render part of the statute

meaningless. Id. at 1199. Further, as we interpret a statute, we remain mindful

of “what it ‘does say’ and what it ‘does not say.’” Mi.D. v. State, 57 N.E.3d 809,

812 (Ind. 2016) (quoting State v. Dugan, 793 N.E.2d 1034, 1036 (Ind. 2003)).

[23] It is undisputed that Employee brought this action under FELA, a federal law

that “creates a negligence action for railroad employees injured in the scope of

their employment . . . .” DeHahn v. CSX Transp., 925 N.E.2d 442, 446 (Ind. Ct.

App. 2010). Under FELA, “plaintiffs must offer evidence proving the common

law elements of negligence, including duty, breach, foreseeability, and

causation.” Id. at 447. However, the “existence of negligence under FELA is a

question of federal law, not state law.” Id. Here, it is generally undisputed that

Railroad complied with FRSA in having a one-man crew. Railroad argues that
Court of Appeals of Indiana | Opinion 25A-CT-1138 | March 16, 2026 Page 13 of 23
because federal regulations adopted pursuant to FRSA ultimately allow for one-

man RCO crews, Railroad cannot be negligent for having a one-man RCO

crew. See Appellant’s Br. pp. 21–22. Put differently, Railroad argues that

FRSA precludes any FELA claim premised on a crew-size theory of negligence.

It is worth noting that the term “preclusion” refers to instances when one

federal statute bars a claim under another federal statute. See generally DeHahn,

925 N.E.2d at 448 n.5. In contrast, “preemption” refers to instances when

federal law bars a state-law claim. See generally, e.g., id. at 448, 448 n.5.

[24] Congress specified that the purpose of FRSA “is to promote safety in every area

of railroad operations and reduce railroad-related accidents and incidents.” 49

U.S.C. § 20101. FRSA empowers the Secretary of Transportation to prescribe

regulations for “every area of railroad safety. . . .” 49 U.S.C. § 20103 (a). FRSA

also provides that “[l]aws, regulations, and orders related to railroad safety . . .

shall be nationally uniform to the extent practicable.” 49 U.S.C. § 20106 (a). 6

Injured parties do not have a federal cause of action under FRSA. 49 U.S.C. §

20106 (c). However, FELA establishes a cause of action for injured railroad

employees, specifying that a railroad carrier “shall be liable in damages to any

person suffering injury while he is employed by such carrier in such commerce”

6
Employee points out that subsection (a) is within a section titled “Preemption,” suggesting that FRSA’s
uniformity mandate is limited to the preemption of inconsistent state laws. It is worth noting, however, that
subsection (c) speaks to a federal issue, which is whether FRSA establishes a federal cause of action.
Regardless, to resolve this case, we need not interpret subsection (a) as strictly limited to matters of state law.

Court of Appeals of Indiana | Opinion 25A-CT-1138 | March 16, 2026 Page 14 of 23
for “such injury or death resulting in whole or in part from the negligence of

any of the officers, agents, or employees of such carrier . . . .” 45 U.S.C. § 51.

[25] Railroad focuses on the FRSA provision regarding national uniformity in

railroad safety regulation, arguing that “FRSA’s uniformity mandate

encompasses other federal laws.” Appellant’s Br. p. 25. Railroad directs us to a

pre-POM Wonderful case indicating that “the uniformity demanded by . . .

FRSA can be achieved only if federal rail safety regulations are applied . . . to a

FELA plaintiff’s negligence claim.” Appellant’s Br. p. 27 (quoting Nickels v.

Grand Trunk W. R.R., Inc., 560 F.3d 426, 430 (6th Cir.)). Under Railroad’s

reading of the law, FRSA does not preclude all FELA claims. Rather, a claim

“can proceed” if “there is no federal safety standard covering the matter” or “if

the railroad breaches such a standard . . . .” Id. at 28. Here, Railroad argues

there was a crew-size regulation adopted pursuant to FRSA. 7 According to

Railroad, that regulation establishes the only applicable standard of care.

Railroad argues that, “as a matter of law, there can be no negligence—and thus

no viable FELA claim—if the railroad has complied with the standard of care

7
On appeal, Employee argues that, while a FRSA regulation authorized the use of RCOs, there was no
regulation governing crew size. Employee did not present this argument at trial, instead agreeing with
Railroad that it was “permitted by federal law to have a single RCO doing all this work . . . .” Tr. Vol. 2 p.
127. Employee further argued that “[w]hether they’re permitted to or not by law is not the issue” in that a
jury could find that using a one-man RCO crew at a busy railyard is “not what a reasonably safe railroad
would do.” Id. at 128. In any case, we need not address Employee’s appellate argument in light of our
conclusion herein that FRSA and FELA are complementary statutes that do not result in federal preclusion.

Court of Appeals of Indiana | Opinion 25A-CT-1138 | March 16, 2026 Page 15 of 23
set by on-point federal safety rules” like the crew-size rule. Id. (emphasis

removed).

[26] Employee responds that FRSA and FELA are complementary such that a

FRSA-derived regulation permitting a one-person crew would not preclude a

claim that Railroad was negligent in operating with a one-person crew under

the circumstances. Employee argues that POM Wonderful guides our analysis.

POM Wonderful involved allegations that a beverage producer misled consumers

into believing its product predominantly consisted of a juice blend referenced in

prominent text on the label, when the referenced juices actually made up only

0.6% of the product. 573 U.S. at 110. The plaintiff—a competitor in the juice

business—claimed the producer engaged in unfair competition under the

Lanham Act, which prohibits false or misleading product descriptions. See id.

at 106. The producer responded that the claim was precluded by the Federal

Food, Drug, and Cosmetic Act (“the FDCA”), which forbids the misbranding

of food, including through false or misleading labeling. See id. The Supreme

Court was asked to decide the preclusion issue. See id. The Court applied

“traditional rules of statutory interpretation,” id. at 112, to conclude that the

FDCA and the Lanham Act “complement[ed] each other in major respects,” id.

at 115, and that both could be fully implemented at the same time, id. at 119.

[27] The Court observed that, under the FDCA, “[p]rivate parties may not bring

enforcement suits.” Id. at 109. Rather, “[t]he FDCA statutory regime is

designed primarily to protect the health and safety of the public at large,” id. at

108, with the United States having “nearly exclusive enforcement authority,”

Court of Appeals of Indiana | Opinion 25A-CT-1138 | March 16, 2026 Page 16 of 23
id. at 109. In contrast, the Lanham Act “relies in substantial part for its

enforcement on private suits brought by injured competitors . . . .” Id. The

Court ultimately reviewed both statutory schemes and determined that “[t]here

[was] no statutory text or established interpretive principle to support the

contention that the FDCA precludes Lanham Act suits like the one brought . . .

in th[e] case.” Id. at 106. The POM Wonderful Court specifically observed that

“[n]othing in the text, history, or structure of the FDCA or the Lanham Act

show[ed] the congressional purpose or design to forbid these suits.” Id. Based

on its reading of the federal laws, the Court concluded that “Congress did not

intend the FDCA to preclude Lanham Act suits” like the suit at issue. Id. at

1. The Court also noted that the FDCA and the Lanham Act coexisted for

seventy years, “[y]et Congress did not enact a provision addressing the

preclusion of other federal laws that might bear on food and beverage labeling.”

Id. at 114. The Court found that this was “powerful evidence” that the claim

was not precluded. Id. (quoting Wyeth v. Levine, 555 U.S. 555, 575 (2009)).

[28] Here, the parties agree that there is no binding precedent as to FRSA/FELA

preclusion in the wake of the POM Wonderful decision. Although there is no

binding precedent, we derive insight from the Louisiana Supreme Court’s

recent approach in Van Buren v. Kansas City Southern Railway Company, 421 So.

3d 910 (La. 2025). The Van Buren Court collected cases and explained that “the

majority of state and federal courts that have applied the [United States

Supreme Court’s] reasoning post-[POM]Wonderful . . . find [that] FRSA does

not preclude FELA actions.” 421 So. 3d at 915. Courts have pointed out that

Court of Appeals of Indiana | Opinion 25A-CT-1138 | March 16, 2026 Page 17 of 23
the regulations adopted under FRSA established minimum safety requirements.

See, e.g., 49 C.F.R. § 218.1 (setting forth “minimum requirements for railroad

operating rules and practices”). Establishing minimum safety requirements—in

other words, a baseline standard of care—aligns with FRSA’s purpose, which is

“to promote safety in every area of railroad operations and reduce railroad-

related accidents and incidents.” 49 U.S.C. § 20101. Courts have concluded

that this safety-promoting purpose is “entirely consistent with FELA’s goal of

promoting the safety of railroad employees by facilitating their ability to recover

for injuries caused by a railroad’s negligence.” Van Buren, 421 So. 3d at 916

(quoting Norfolk S. Ry. Co. v. Hartry, 837 S.E.2d 303, 309 (Ga. 2019)).

[29] The Van Buren Court also pointed out that—like the federal laws at issue in

POM Wonderful—FRSA and FELA have co-existed for decades without the

legislature intervening to address the preclusion of federal law involving

railroad safety. Id. at 917. In the end, the majority reading of FRSA and FELA

is that the statutes are “complementary in purpose and effect.” Noice v. BNSF

Ry. Co., 383 P.3d 761, 771 (N.M. 2016). As one reviewing court put it:

Both statutes further railroad safety in meaningfully distinct
ways. FRSA seeks to enhance safety in every area of railroad
operation, and to protect the public as well as railroad workers.
It does so with national, comprehensive regulatory standards
which are enforced by government entities. FELA, by
comparison, focuses solely on the safety of railroad workers, and
does so by providing railroad employees a private right of action.

Court of Appeals of Indiana | Opinion 25A-CT-1138 | March 16, 2026 Page 18 of 23
Id. (citations omitted). Furthermore, permitting these types of FELA claims “is

likely to enhance the overall safety of railroad operation,” which is consistent

with FRSA’s stated purpose. Id. Additionally, “FELA claims may shed light

upon potentially dangerous circumstances that regulators might otherwise not

identify or that are less amenable to uniform, regulatory solutions.” Id.

[30] For the reasons articulated in Van Buren and supporting cases cited therein,

which addressed substantially the same arguments Railroad now presents, we

reject Railroad’s proffered reading of federal law. We find that FRSA does not

preclude Employee’s FELA claim, which is that, regardless of whether federal

authority allowed a one-man RCO crew, Railroad was negligent in its use of a

one-man RCO crew under the circumstances. Having determined that FRSA

does not preclude Employee’s FELA claim, we conclude that Railroad was not

entitled to judgment on the evidence as to a crew-size theory of negligence.

We, therefore, conclude that, as to this crew-size theory, the trial court properly

denied Railroad’s Trial Rule 50 motion and subsequent motion to correct error.

II. Damages
[31] Railroad next argues that “the judgment below cannot stand because the trial

court improperly allowed [Employee] to seek damages unsupported by any

evidence.” Appellant’s Br. p. 43. Railroad maintains that “no competent

evidence showed that [Employee] is totally disabled.” Id. Railroad points out

that it “sought to exclude improper evidence on this point during trial,” later

“moved for a directed verdict on this ground,” and eventually filed a post-trial

Court of Appeals of Indiana | Opinion 25A-CT-1138 | March 16, 2026 Page 19 of 23
motion to correct error “mov[ing] for a new damages trial, with or without

remittitur, on this same basis.” Id. Railroad asserts that “[t]he trial court erred

by denying these motions.” Id. On appeal, Railroad asks that, “because no

competent evidence showed that [Employee] was totally disabled,” we either

(1) reverse and remand for a new trial on damages or (2) reverse and remand

“with instructions to reduce the gross damages award by the amount of

[Employee’s] claimed future lost wages, $2,009,492 . . . .” Id. at 50.

[32] Railroad asks us to apply a de novo standard of review, focusing on whether the

evidentiary support for the damages award was sufficient as a matter of law.

See id. at 44–45. Indeed, Railroad argues that there was a “complete failure of

proof on future wage loss.” Id. at 48. However, Railroad’s specific arguments

at times relate to the admissibility of Gonzalez’s expert opinion and Opp’s

calculations based on Gonzalez’s report. Cf., e.g., Reply Br. p. 7 (arguing that

“hearsay does not become admissible just because the vocational expert

repeated it” and, “[w]ithout a foundation in evidence,” Gonzalez’s opinion “is

improper”). We note, however, that Railroad does not identify or apply the

standard of review for issues involving the admissibility of evidence, focusing

instead on whether the trial court should have “take[n] the lost-wages issue off

the table with a directed verdict.” Appellant’s Br. p. 49; see also Reply Br. p. 9

(arguing that “no competent evidence supported [Employee’s] claim that he can

never work again”). The argument presented seems to be that (1) the trial court

should have excluded testimony from Gonzalez and certain testimony from

Opp, (2) had this testimony been excluded, Employee would not have met his

Court of Appeals of Indiana | Opinion 25A-CT-1138 | March 16, 2026 Page 20 of 23
evidentiary burden as to future lost wages, and (3) in this scenario, Railroad

would have been entitled to judgment on the evidence. Cf. Appellant’s Br. pp.

44–45 (“Without [Gonzalez’s] conclusion that [Employee] cannot work, then,

no evidence supports his multi-million-dollar request for lost wages.”).

[33] Critically, however, a motion for judgment on the evidence tests the legal

sufficiency of the evidence presented. E.g., Scholl, 162 N.E.3d at 479. It does

not present an opportunity to revisit evidentiary rulings. See generally Cosme,

232 N.E.3d at 1150 (explaining that, akin to summary judgment, judgment on

the evidence is proper if “there are no factual issues for the jury to decide” and a

party is entitled to judgment as a matter of law). Here, Railroad relies on its

Trial Rule 50 motion for judgment on the evidence, not its motion to exclude.

In the end, we must address the appellate issues as presented to us, else we risk

becoming an advocate instead of a neutral tribunal. See, e.g., Chapo v. Jefferson

Cnty. Plan Comm’n, 224 N.E.3d 971, 983 (Ind. Ct. App. 2023) (“We will not

transform into a party’s advocate and fashion arguments on their behalf.”),

trans. denied.

[34] In reviewing a motion for judgment on the evidence, our role is “to assess

whether, without any weighing, the evidence supports any reasonable inference

in favor of the nonmovant.” Cosme, 232 N.E.3d at 1152. The same standard

applies when a party seeks, through a motion to correct error, a determination

that there is insufficient evidence under the law to support the verdict.

Indianapolis Pub. Transp. Corp. v. Bush, 266 N.E.3d 719, 726–27 (Ind. 2025).

Court of Appeals of Indiana | Opinion 25A-CT-1138 | March 16, 2026 Page 21 of 23
[35] In this instance, we cannot say that, as a matter of law, there was insufficient

evidence that Employee was completely vocationally disabled such that he

sustained $2,009,429 in future lost wage damages—a figure calculated by Opp,

the expert economist. 8 The vocational rehabilitation expert, Gonzalez, testified

in detail about the grounds for her vocational opinion, including “information

from Dr. Jordan,” who “said [Employee] was permanently disabled from his

regular . . . occupation” and “has cognitive challenges that lead to lapses in

memory and concentration.” Tr. Vol. 3 p. 68. Independent of Gonzalez’s

testimony about the content of the medical records, there was testimony from

Dr. Jordan that Employee experienced permanent neurological symptoms due

to brain injury caused by the train collision. See Appellant’s App. Vol. 2 p. 48.

Dr. Jordan opined that Employee needed “lifelong strategies . . . to help

manage his life” and had “chronic persisting symptoms” that he thought

Employee “w[ould] have to manage on some level indefinitely.” Id. at 49.

Furthermore, there was additional evidence bearing on the scope of Employee’s

brain injury, as the otolaryngologist testified about permanent bilateral tinnitus.

[36] For the foregoing reasons, we find there was sufficient evidence of lost wage

damages such that Railroad did not meet the requirements of Trial Rule 50.

8
To the extent Railroad has claimed the verdict was against the weight of the evidence, based on the trial
court’s remarks as to Gonzalez’s vocational expertise, we cannot say it erred in declining to disturb the
verdict. See Indianapolis Pub. Transp. Corp. v. Bush, 266 N.E.3d 719, 726–27 (Ind. 2025) (discussing theories
available in a Trial Rule 59(J) motion to correct error, where a party may claim the verdict was either against
the weight of the evidence or clearly erroneous as contrary to or not supported by the evidence).

Court of Appeals of Indiana | Opinion 25A-CT-1138 | March 16, 2026 Page 22 of 23
Conclusion
Because FRSA does not preclude Employee’s FELA claim and because the

record contains evidentiary support for Employee’s claim for future wage loss

damages, Railroad has not identified grounds to disturb the judgment.

Affirmed.

May, J. and Altice, J., concur.

ATTORNEYS FOR APPELLANT
Barry L. Loftus
James F. Olds
Stuart & Branigin LLP
Lafayette, Indiana
Tobias S. Loss-Eaton
Charles W. Jetty
Sidley Austin LLP
Washington, D.C.

ATTORNEYS FOR APPELLEE
Gabriel A. Hawkins
Cohen & Malad, LLP
Indianapolis, Indiana
George Brugess
Cogan & Power, PC
Chicago, Illinois
Mark A. Psimos
Nathan M. Psimos
Psimos Law
Merrillville, Indiana

Court of Appeals of Indiana | Opinion 25A-CT-1138 | March 16, 2026 Page 23 of 23