THIRD DIVISION March 18, 2015

No. 1-12-1901

ANTHONY WILLIAMS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County ) v. ) 06 L 8509 ) BNSF RAILWAY COMPANY, f/k/a Burlington ) Honorable Northern Railway Company, f/k/a The Burlington ) Clare E. McWilliams, Northern and Santa Fe Railway Company, d/b/a The ) Judge Presiding. Burlington Northern Santa Fe Railway Company, ) ) Defendant-Appellant and ) Third-Party Plaintiff-Appellant, ) ) (Quality Terminal Services, LLC, ) ) Third-Party Defendant-Appellee). )

JUSTICE MASON delivered the judgment of the court, with opinion. Justices Neville and Hyman concurred in the judgment and opinion.

OPINION

¶1 Plaintiff-appellee Anthony Williams filed suit against defendant-appellant BNSF Railway

Company (BNSF) pursuant to the Federal Employers Liability Act (FELA) (

)

(2006), for an employment-related injury. BNSF filed a third-party complaint for

contribution and contractual indemnification against third-party defendant-appellee Quality

Terminal Services (QTS). The jury returned a verdict in favor of Williams and awarded total

damages in the amount of $2,676,960. The jury assessed 50% of the negligence involved in

the injury to Williams, 37.5% to BNSF and 12.5% to QTS. The jury also returned a verdict

in favor of QTS on BNSF's contractual indemnity claim. No. 1-12-1901

¶2 On September 25, 2013, this court dismissed the appeal for lack of jurisdiction,

concluding that because the only issue remaining after the trial court's oral ruling denying

BNSF's posttrial motion was a tax setoff issue that did not toll the time for filing an appeal,

BNSF's appeal was not timely filed. Williams v. BNSF Ry. Co.,

. The supreme court reversed and remanded, holding that the judgment was not final

until the trial court issued its ruling on the setoff issue, because the trial court's prior oral

ruling was not entered in the law record book until that date. Williams v. BNSF Ry. Co.,

. Thus, we now address the merits of BNSF's appeal.

¶3 On appeal, BNSF contends that the circuit court erred in denying its motion for a directed

verdict on the contractual indemnity claim where the evidence established that BNSF gave

reasonable notice to QTS. BNSF further contends that the circuit court erred in refusing to

allow evidence related to Williams' termination of employment with BNSF. Finally, BNSF

contends that the circuit court erred in allowing evidence of the loss of household services,

including unsupported opinion testimony regarding the value of those services. We are not

persuaded by BNSF's arguments and affirm the judgment of the circuit court of Cook

County.

¶4 BACKGROUND

¶5 On August 21, 2003, Williams was working as a crane operator for BNSF and sustained

an injury to his back for which he obtained immediate medical attention. The incident

occurred at an intermodal rail facility located in Cicero, Illinois, that is owned and operated

by BNSF. Williams' employment with BNSF was scheduled to be terminated at the end of

his shift, an event that was related to prior disciplinary violations.

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¶6 The BNSF Cicero yard is a hub for shipping and receiving freight in containers that are

placed on and removed from railcar chassis or delivery trucks by the use of a crane operated

by an employee, the crane operator, assisted from the ground by another employee, the crane

director. The crane operators and directors are BNSF employees but at the time of the

incident, the loading and unloading operations at the facility were managed and supervised

by QTS pursuant to an "Intermodal Facilities Services Agreement" (Agreement) between

QTS and BNSF. The Agreement contained an indemnification clause that required BNSF to

give reasonable notice to QTS of any claim that could trigger the indemnification provision.

¶7 Following the incident, BNSF initiated an investigation into the circumstances

surrounding Williams' injury. In December 2003, BNSF received written notice of an

attorney's lien from a law firm retained by Williams to pursue a personal injury claim. BNSF

received a second notice of an attorney's lien from a different law firm in March 2005.

¶8 Williams filed his complaint against BNSF on August 20, 2006. One of the acts of

negligence alleged in the complaint was BNSF's failure to provide Williams with "sufficient

manpower" to perform his duties on the date of the accident.

¶9 Williams was deposed in May 2007. Williams testified that on the night he was injured

he was working alone and that Frank Stephenson, the QTS supervisor on duty, directed him

to do so. Pursuant to the Agreement, BNSF submitted a written demand for indemnity to

QTS in August 2007, predicated on information BNSF claimed it first learned from

Williams' deposition testimony. QTS rejected the demand and BNSF filed a third-party

complaint against QTS for contribution and indemnity on August 26, 2008. In response to

BNSF's claim for indemnification, QTS raised the affirmative defense that BNSF had not

submitted its written demand for indemnification within a "reasonable time" as required

under the Agreement.

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¶ 10 Prior to trial, Williams filed a motion in limine to bar evidence of his termination by

BNSF on the grounds that it was not relevant to the issues in the case. At the hearing on the

motion, the trial court stated that it did not want a "trial within a trial" where the jurors would

concern themselves with whether or not Williams was properly terminated, a proposition

with which counsel for BNSF agreed. Counsel for BNSF argued, however, that the

termination was relevant to an argument that Williams had a motive to fabricate his injury.

During the trial, the trial court again ruled against the admission of the evidence, particularly

because there was no evidence to suggest that Williams knew he was going to be terminated

that day, thus undermining any motive BNSF could ascribe to him.

¶ 11 Also prior to trial, the trial court denied QTS' motion for summary judgment on the

timeliness of BNSF's demand for indemnification under the Agreement. The court found

that there existed genuine issues of material fact regarding when BNSF knew or should have

known that the negligence of a QTS employee caused, in whole or in part, Williams' injury

and that whether BNSF submitted its demand for indemnification within a "reasonable time"

presented an issue for the jury.

¶ 12 The trial of the case spanned nine days. More than a dozen witnesses testified. Of the 46

assignments of error raised in BNSF's posttrial motion, BNSF has elected to pursue only 3 of

those on appeal. We summarize only so much of the evidence as is necessary to a discussion

of these issues.

¶ 13 At trial, Williams testified that he was employed by BNSF at the time of the injury and

was working at the Cicero yard as a crane operator. He had previously worked as a crane

director. Williams explained that a crane director needs to be in a position on the ground that

allows the director to see areas that the crane operator cannot see from inside the cab of the

crane. The director lets the operator know whether it is safe to move the crane and if there

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are any obstacles. A crane director and a crane operator work as a team, with the operator

using the crane to lift the trailer or container and the director providing direction. It was

BNSF's policy that any time a crane is in operation, a director must be on the ground

providing verbal directions and hand signals to the operator.

¶ 14 Williams explained that the team is taken out to the track by the ramp supervisor. Ramp

supervisors are QTS employees. The crane operator-director team performs what are

referred to as "flips." A flip is performed by taking a container off the ground or off a chassis

and loading it onto another chassis. A "live flip" occurs when a truck driver is in the yard

waiting while the team removes the container from the truck, while an "in-house flip"

involves a container that is already in the yard and needs to be moved to another chassis. For

in-house flips, the crane director unlocks the container from the chassis it is currently on and

sets up the other chassis to receive it. The crane director then indicates to the crane operator

that it is safe to move the container and also indicates whether or not it needs to be adjusted

in any way once it is placed on the chassis. After the container is seated flush on the correct

chassis, it is locked in place by the crane director. Each chassis has front and rear locks and

the lock may be a twist lock or a push/pull pin with a handle.

¶ 15 Williams explained that the tool most often used by a crane director to lock the container

in place is a five-iron. The five-iron is an L-shaped bar with a longer side that is

approximately three feet and a shorter side that is approximately six inches. In order to lock

the container in place using a push/pull pin type of lock, the pin needs to be pulled out before

the container is loaded, and then pushed back through a bolster and into the casting at the

base of the container once it is in place on the chassis. The locks are frequently rusty and the

five-iron is used to either loosen the safety latch when unlocking or to force the pin through

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the bolster when locking. Williams stated that at least one pin on each chassis usually had to

be locked by striking the five-iron on the pin to get it to fully insert into the casting.

¶ 16 Williams worked the 11 p.m. to 7 a.m. shift on August 20-21, 2003, and Stephenson was

his supervisor. Williams and Bonnie Deamon, a crane director, were assigned to work

together and Stephenson drove them out to the location of their assignments. They took a

lunch break at approximately 3 a.m. in the yard office, a building that included locker rooms

for both men and women. Williams took his break in the men's locker room.

¶ 17 At approximately 4 a.m., Stephenson told Williams that he had 12 or 13 in-house flips

that he wanted Williams to do. Williams agreed and asked Stephenson to get Deamon so

they could go out and take care of the flips. Stephenson said everything was lined up in a

straight line so it should not be that difficult and Williams should be able to do it by himself.

Despite Williams' stated preference to have his director with him, Stephenson said he was not

going to bother Deamon and was just going to take Williams out to the yard. When they

arrived at the location where the flips were set up, Williams again said that he preferred to

work with his director, but Stephenson directed Williams to perform the flips himself.

¶ 18 After Stephenson left, Williams checked the crane to make sure everything was in

working order and then went down the line with the five-iron, setting up and unlocking each

chassis. Williams returned to the crane and moved each container onto the correct chassis.

Williams then got out of the crane and walked back with the five-iron to lock down each of

the containers. When he reached the last container, the pin on the final lock would not go in,

so he tapped it with the five-iron and it went in a little but not all the way. Williams then

swung the five-iron to strike the pin with more force. As he did so, he felt a pop in his back

and immediately felt pins and needles shooting down his lower back and buttocks area and

numbness on the outside of his left leg.

-6- No. 1-12-1901

¶ 19 Williams returned to the crane and called Stephenson on the radio to tell him he had been

injured. Stephenson took Williams back to the yard office and Ross Schoepp, a BNSF

manager, took Williams to the hospital.

¶ 20 En route to the hospital, Schoepp first drove Williams to the ramp where he was injured

and asked him to describe what happened. When Williams told Schoepp about striking the

pin with the five-iron, Schoepp asked him if he had used a jabbing motion with the five-iron

or a baseball swing. Williams told Schoepp it was more like a baseball swing.

¶ 21 At trial, Schoepp testified that a baseball swing was not the proper way to use a five-iron.

Schoepp further testified that Williams never told him that Stephenson told him to work

alone and that, if this was true, consistent with BNSF's policy, Williams should have called

the hub manager or refused to do the flips by himself on the grounds that the conditions were

unsafe.

¶ 22 Deamon, the crane director assigned to work with Williams the night of the incident, had

never known a crane operator to go out and perform 12 to 15 flips alone. Deamon received

on-the-job training in the use of the five-iron and said that it was primarily used to unsecure

hitches on flatcars, not to lock pins. After an in-house flip, Deamon would not go back and

lock the pins.

¶ 23 On the night in question, things were slow so Deamon took an extended lunch break. She

explained that when things were slow, she would be placed on lunch break until something

came in and someone would then knock on the locker room door and tell her to come back

out. That night, nobody knocked on the door until someone came to tell her Williams had

been injured. The following day, Fred Jamison, a BNSF supervisor, asked Deamon where

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she was during the incident and she told him she was in the locker room having lunch and

reading a book.

¶ 24 Robert Ellman worked for QTS as the superintendent of the Cicero yard at the time of

Williams' injury. Ellman testified that QTS never conducted an investigation of the incident

involving Williams because it was never notified by BNSF of an incident that required

investigation.

¶ 25 By the time of trial, Williams had been receiving care from an orthopedic surgeon for

eight years and the treatment was ongoing. He received injections in his back for pain for a

period of three to five months beginning in December 2003. Williams also underwent

physical therapy for a period of four years after the incident, during which time he had

approximately 80 therapy sessions. He used an electronic stimulator for pain management

and occasionally required the use of a cane for assistance when walking. Williams had three

different braces for his back to provide different levels of support and continued to take two

prescription medications for pain management. Williams testified that his life activities had

changed dramatically since the injury. He could no longer do chores around the house, either

inside or outside. Walking was more difficult, but resting and sleeping were also difficult

because of the pain. He could no longer enjoy outings and activities with his family.

¶ 26 Stan Smith, a forensic economist, rendered opinions regarding damages attributable to

Williams' injury. Using standard methodology, Smith calculated Williams' loss of earnings,

benefits and the loss of the value of household services Williams could no longer perform.

Smith testified that household services typically fall under one of three categories: food

preparation, clothing care, and household maintenance and repair. Smith opined that the loss

of value of household services over Williams' life expectancy was $657,601. Smith

calculated damages related to Williams' lost earning capacity to be $1,733,687 assuming he

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worked until the age of 67, and $1,396,821 assuming he retired at age 62. The foregoing

totals factored in Williams' receipt of a portion of his pension income since the date of his

injury.

¶ 27 Kevin Bell, a BNSF claims representative, investigated the incident. Bell was familiar

with the contract between BNSF and QTS, the indemnification clause, and the notice

provision. Bell explained that it was one of the responsibilities of the claims representative

to determine whether BNSF was going to seek indemnification from QTS.

¶ 28 A day or two after the incident, Bell learned of it from Jamison, the BNSF hub manager

at the Cicero yard. Jamison conducted his own investigation into the incident and provided

Bell with a statement from Williams. Bell acknowledged that from the statement he could

have concluded that Williams had been doing the job of both crane operator and crane

director at the time of the injury. Bell learned from Jamison that in the types of flips

Williams had been doing, the pins did not need to be locked and that swinging a five-iron to

strike the pins was not the proper use of the five-iron. 1 Bell also spoke with Deamon as part

of his investigation. She told him she was working as Williams' crane director that night, but

did not know anything about the incident. Bell verified that nobody else was identified as

being in the area at the time of the incident.

¶ 29 In early December 2003, Bell received a notice of attorney's lien related to the incident

involving Williams. The notice stated that Williams had a potential cause of action

stemming from negligence in the management and maintenance of the Cicero yard. Bell

received a second notice of an attorney's lien from a different law firm in March 2005.

1 The court allowed this testimony, not for the truth of the statements in Jamison's report, but as relevant to the notice issue between BNSF and QTS. -9- No. 1-12-1901

¶ 30 In September 2006, Bell reviewed the complaint filed by Williams that alleged BNSF

failed to provide him with sufficient manpower to perform his work. Bell confirmed that the

first time he provided written notice to QTS was in August 2007 and explained that he first

learned that Williams was ordered to work alone by the QTS manager at Williams'

deposition in May 2007.

¶ 31 After the last witness testified, BNSF made an offer of proof of the facts relating to

Williams' termination. Williams denied that Schoepp told him at the beginning of his shift

on August 21, 2003, that he had to report to Jamison at the end of his shift. BNSF did not

supply any evidence that prior to receipt of the termination letter at the end of his shift on

August 21, 2003, Williams had been informed or was otherwise aware that he would be

terminated that day. The trial court accepted BNSF's offer of proof and denied the motion to

reconsider its prior order barring evidence relating to Williams' termination.

¶ 32 The trial court denied BNSF's motion for a directed verdict and Williams' motion for a

directed finding that Stephenson was an agent of BNSF. The trial court then addressed QTS'

motion for a directed verdict on the issue of indemnification based upon BNSF's delay in

providing written notice. Counsel for BNSF orally cross-moved for a directed verdict on the

ground that BNSF was not aware prior to Williams' deposition that QTS was potentially at

fault for the injury. The trial court denied both motions.

¶ 33 As noted, the jury returned a verdict in favor of Williams and against BNSF in the

amount of $2,676,960, consisting of $1,396,821 for past and future lost earning capacity,

$328,500 for lost household services, and $951,639 for pain and suffering. The jury

attributed 50% of the negligence involved in the injury to Williams, 37.5% to BNSF and

12.5% to QTS. After reducing Williams' damages by the percentage of negligence, the jury

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awarded recoverable damages in the amount of $1,338,480. The jury also found in favor of

QTS on BNSF's indemnification claim.

¶ 34 ANALYSIS

¶ 35 BNSF first argues that it is entitled to judgment against QTS for indemnity as a matter of

law because it was not required to give notice until it learned facts showing that Williams'

injury arose out of QTS's conduct. We disagree with QTS's argument that BNSF has waived

this issue. BNSF made an oral motion for a directed verdict and argued in its posttrial

motion that the court erred in sending the indemnification claim to the jury when it should

have decided the issue in favor of BNSF as a matter of law. Although the argument section

of the posttrial motion focused on the denial of BNSF's summary judgment motion on this

issue, it was sufficient to preserve the issue for review.

¶ 36 A directed verdict is appropriate only in those cases where all of the evidence, when

viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant

that no contrary verdict could ever stand. Jablonski v. Ford Motor Co.,

(quoting Pedrick v. Peoria & Eastern R.R. Co.,

(1967)). We review

the denial of a motion for a directed verdict de novo. Lawlor v. North American Corp. of

Illinois,

.

¶ 37 As our supreme court has held in the context of insurance policies, notice provisions

impose valid prerequisites to coverage. West American Insurance Co. v. Yorkville National

Bank,

(2010). The timeliness of the notice given is generally a question

of fact, but it may be properly determined as a matter of law where the material facts are not

in dispute. Northbrook Property & Casualty Insurance Co. v. Applied Systems, Inc.,

(2000). Factors considered in determining whether notice was reasonable

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include: (1) the specific language of the policy's notice provisions; (2) the degree of the

insured's sophistication in the world of commerce and insurance; (3) the insured's awareness

that an occurrence as defined under the terms of the policy has taken place; (4) the insured's

diligence and reasonable care in ascertaining whether policy coverage is available once the

awareness has occurred; and (5) any prejudice to the insurance company. West American,

. We believe similar factors are relevant in the context of reasonable

notice required in a contractual indemnification clause.

¶ 38 The indemnification clause in the Agreement provides, in relevant part, that QTS will

indemnify BNSF from and against any and all claims "which shall arise or result from or in

any manner be connected with" an injury to any person "arising directly or indirectly, in

whole or in part, from the actions or omissions of QTS or its employees, unless such injury

*** is proximately caused by the sole negligence of [BNSF]." The indemnification clause

contains the following notice provision:

"In the event any claim or suit is brought against [BNSF] for which [QTS] is

responsible under this Section 5, or in the event any claim or suit is brought against

[BNSF] arising out of work performed, materials furnished, or other activities

conducted under the terms of this Agreement, for which [QTS] is responsible under

the provisions of this Agreement, [BNSF] shall give [QTS] reasonable notice in

writing of the pendency of such claims or suit, and upon receipt of such notice, [QTS]

shall forthwith assume the defense of such claim or suit, and shall save and hold

harmless [BNSF] from all loss, cost, expense and liability by reason thereof."

¶ 39 BNSF focuses on the first clause of the notice provision, and contends that because it did

not know that QTS was responsible until Williams testified in his deposition that he was

ordered to work alone by his QTS supervisor, it was under no obligation to provide notice to

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QTS before then. But we note that the notice provision not only covers claims for which

QTS is responsible; it also includes claims arising out of work performed or other activities

conducted under the Agreement. Therefore, BNSF was obligated to provide notice to QTS,

at the latest, as soon as it received notice of the attorneys' lien in December 2003 because

Williams' claim arose out of work performed while under the supervision of QTS as per the

Agreement.

¶ 40 But even under the first clause of the notice provision relied on by BNSF, the facts show

that BNSF's notice to QTS was unreasonable. Shortly after the injury, BNSF was aware that

Williams had been working as a crane operator but was injured while performing the duties

of a crane director. BNSF was also aware that Deamon was working as Williams' crane

director earlier in the shift, but was not with him at the time of his injury. Bell knew that

nobody else was in the area at the time of the injury and, therefore, that Williams was

working alone. BNSF's own policy provided that crane operators should not work alone.

These facts would have prompted a reasonable person to investigate why Williams was

working alone. Moreover, Williams' complaint alleged a "lack of adequate manpower,"

something that should also have alerted BNSF to investigate further. Under these

circumstances, we can discern no justification for BNSF's four-year delay in providing notice

to QTS. Thus, BNSF has not established that its notice was reasonable as a matter of law and

the trial court did not err in denying BNSF's motion for a directed verdict on the issue of

indemnification.

¶ 41 BNSF next argues that the trial court erred in barring evidence that Williams was

scheduled to be terminated at the end of his shift on the date of the injury. As a threshold

matter, we disagree with Williams' contention that BNSF waived this argument by failing to

make a sufficient and timely offer of proof. Williams argues that BNSF should not have

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waited until the end of trial to submit its offer of proof, and alleges that BNSF did not call

any witnesses. While the better practice is to make a contemporaneous offer of proof while

the witness is on the stand, there is no set requirement for when an offer of proof must be

made, and BNSF elicited testimony from Williams and referred to deposition testimony that

was part of the record in its offer of proof. This is sufficient to preserve the issue for appeal.

¶ 42 On the merits, BNSF contends that the evidence regarding the termination of Williams'

employment was relevant because Smith's calculations of lost earning capacity that the jury

relied on in awarding damages did not take into account the fact that Williams no longer

worked for BNSF. BNSF further contends that Williams' counsel opened the door to this

evidence by raising the issue of discipline and argues that it was prejudiced when it was not

allowed to explain that the reason Williams was not disciplined for the incident is because he

was terminated, not because he had done nothing wrong. Finally, BNSF contends that this

evidence was relevant because it would have established a motive for Williams to fabricate

his injury.

¶ 43 Evidentiary rulings are within the sound discretion of the trial court and will not be

reversed absent an abuse of that discretion. People v. Caffey,

(2001). A

trial court abuses its discretion when its decision is fanciful, arbitrary, or unreasonable, or

where no reasonable person would take the same view.

Although a reviewing court may

have ruled differently, the trial court's evidentiary rulings may not be reversed absent a clear

abuse of discretion. People v. Hall,

(2000).

¶ 44 Relevant evidence is evidence having any tendency to make the existence of any fact that

is of consequence to the determination of the action more probable than it would be without

the evidence. People v. Harvey,

(2004). A trial court may reject

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evidence on grounds of irrelevancy if it has little probative value due to its remoteness,

uncertainty, or unfair prejudicial nature.

¶ 45 BNSF's first argument for admission of the termination evidence fails because Smith

testified that Williams' earning capacity would be unchanged, even if BNSF did not exist.

When calculating his lost earning capacity totals, Smith considered salaries earned by crane

operators in the same geographic area. Thus, evidence of Williams' termination would have

had no impact on the damages award. BNSF's argument that because Williams was injured

and unable to work he would not have been able to work for a different company is

unavailing. Because Williams was injured and unable to work, he also would not have been

able to work for BNSF, whether or not he had been terminated. The fact of his termination

simply had no relevance to the damages calculation.

¶ 46 Similarly, BNSF's second argument also fails. BNSF's argument that Williams opened

the door to this evidence is not adequately developed in its brief. BNSF cites two isolated

questions that were asked of different witnesses and a general proposition from cited

authority and then simply states that, because it was not allowed to introduce Williams'

termination as the reason for the lack of disciplinary action, this led to an excessive award of

damages. Counsel for Williams asked Schoepp whether he would have disciplined Williams

if he had seen him using the five-iron in a swinging motion. Counsel for Williams also asked

Tony Marquis, an expert witness for QTS, about a rule that provided an employee would be

subject to discipline if the directions of the employer's designated representative in charge

were not followed.

¶ 47 We will not speculate regarding the correlation between the two questions relating to

discipline and the fact that Williams was terminated, nor do we see how the failure to

introduce evidence of Williams' termination in response to these questions led to an

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excessive award of damages. Counsel for Williams did not argue to the jury that they should

not find Williams contributorily negligent because Williams was not disciplined for swinging

the five-iron in an improper manner. In fact, the jury found Williams contributorily negligent

and the damages award was reduced accordingly, refuting the argument that the damages

award was excessive because the jury thought Williams had done nothing wrong. Even if the

two questions cited by BNSF had opened the door, which we do not believe they did, BNSF

has not shown that it was prejudiced by not being allowed to introduce evidence of Williams'

termination.

¶ 48 BNSF's third argument in support of evidence of Williams' termination regarding motive

fails because, as the trial court correctly noted, BNSF did not present any evidence in its offer

of proof that Williams knew he was going to be terminated at the end of his shift. Williams

testified that Schoepp did not tell him that he needed to report to Jamison at the end of his

shift. Moreover, BNSF acknowledged that, although Schoepp would testify, if called, that he

advised Williams that he had to see Jamison before he went home, Schoepp did not know

why the instruction was given. Thus, the trial court did not abuse its discretion in barring

evidence of Williams' termination.

¶ 49 BNSF's final argument is that the trial court erred in allowing the claim for loss of

household services. BNSF first argues that loss of household services is equivalent to loss of

consortium, and because loss of consortium is not recoverable in a FELA claim, Williams'

claim is an attempted "end-run" around this prohibition. However, damages for loss of

household services are allowed in FELA actions. See, e.g., Rachel v. Consolidated R. Corp.,

(N.D. Ohio 1995) (allowing a claim for loss of household services after

noting the defendant did not cite any authority for the proposition that loss of household

services are not allowed in FELA actions). Further, the aspect of Williams' damages claim

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seeking compensation for the value of household services he can no longer perform is not, as

BNSF contends, a disguised damages associated with loss of consortium claim. The loss of

household services has nothing to do with Williams' relationship with his wife and the effect

Williams' injuries had on that relationship was not the subject of proof at trial.

¶ 50 We also reject BNSF's argument that Dr. Smith's testimony regarding the value of the

loss of household services should have been barred because it was based on Williams'

estimate of the time he spent per week on household services. BNSF relies on Davis v.

Rocor International,

(S.D. Miss. 2002) in which the court barred

expert testimony on the value of household services that it said appeared to be based on

speculation or conjecture. However, we note that Smith is an economist, not an occupational

therapist, and could only provide a value for this aspect of Williams' claim that corresponded

to the information he had been provided by Williams, i.e., what chores Williams typically

performed around the house prior to his injury and what costs are associated with having

those services performed by a third party. The weight and credibility given to Smith's

testimony was a matter for the jury. BNSF had ample opportunity to cross examine both

Smith and Williams on the purported value of the loss of household services. Thus, the trial

court did not err in allowing this testimony.

¶ 51 CONCLUSION

¶ 52 We have carefully examined the claimed errors raised by BNSF in this appeal and find

that none of them warrants judgment notwithstanding the verdict (QTS) or a new trial

(Williams). Accordingly, we affirm the judgment of the circuit court of Cook County.

¶ 53 Affirmed.

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