Jordan v. Atchison, Topeka and Santa Fe Ry. Co., 89-16717

• Citation: 934 F.2d 225
• Decision Date: 31 May 1991
• Docket Number: No. 89-16717,89-16717
• Parties: John M. JORDAN, Plaintiff-Appellant, v. ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, Defendant-Appellee, v. LIGHTNING MOVING & WAREHOUSE CO., an Arizona Corporation, Leaseway Co., Third-party-defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 225

934 F.2d 225

John M. JORDAN, Plaintiff-Appellant, v. ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, Defendant-Appellee, v. LIGHTNING MOVING & WAREHOUSE CO., an Arizona Corporation, Leaseway Co., Third-party-defendants-Appellees.

No. 89-16717.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 6, 1991.

Decided May 31, 1991.

Richard L. Rosett and Ronald Jay Fomalont, Fogel, Feldman, Ostrov, Ringler & Klevens, Los Angeles, Cal., for plaintiff-appellant.

William L. Thorpe, Fennemore Craig, Phoenix, Ariz., for defendant-appellee.

Larry J. Cohen, and Phillip H. Stanfield, Jones, Skelton & Hochuli, Phoenix, Ariz., for third-party-defendant-appellee.

Appeal from the United States District Court for the District of Arizona.

Before HUG, ALARCON and WIGGINS, Circuit Judges.

HUG, Circuit Judge:

In this action filed pursuant to the Federal Employers' Liability Act, 45 U.S.C. Sec. 51 et seq., John Jordan appeals the district court's judgment after a jury trial. Although the district court entered a judgment in Jordan's favor based on a verdict against both Atchison, Topeka & Santa Fe Railway Co. ("Santa Fe"), and Leaseway Company and Lightning Warehouse, Inc. ("Leaseway"), Jordan contends that a number of errors by the district court led the jury to render a significantly reduced damage award. The principal contention is that the district court erred in giving an instruction that restricted any calculation of loss of future earnings based upon his physical inability to continue employment with Santa Fe, if the jury found that his preexisting back problems disqualified him from employment there. We conclude that the instruction was erroneous and could have resulted in an erroneous calculation of damages by the jury. Since we reverse on this basis, we need not consider Jordan's other assignments of error.

I.

Jordan was working as a switchman for Santa Fe on January 28, 1986. He was closing a gate at Leaseway when it fell and landed on top of him. He was diagnosed as suffering from a derangement of a disc, but his doctors also discovered that he had spondylolysis and spondylolisthesis, a preexisting condition that made him more susceptible to back injury.

Jordan sued Santa Fe and Leaseway for negligence under the Federal Employers' Liability Act, 45 U.S.C. Sec. 51 et seq. At trial, Jordan presented the medical testimony of Dr. Eskay-Auerbach. The doctor testified that Jordan's low back and left leg pain were caused by the accident having aggravated the preexisting spondylolysis and spondylolisthesis.

Also during the trial, Santa Fe presented Dr. John D. Zoltan, who testified that Jordan's accident caused only temporary aggravation of his preexisting spondylolysis and spondylolisthesis. Dr. Zoltan concluded that Jordan's current physical problems were the result entirely of his preexisting condition and were not related to the accident.

The jury rendered a verdict in favor of Jordan and found his total damages to be $18,000. The award attributed one-third of the negligence to each of Santa Fe, Leaseway, and Jordan and, thus, would be apportioned in that manner. Jordan filed a motion for a new trial, which was denied. Jordan timely appeals.

II.

There was a legitimate question of fact for the jury, presented by the conflicting medical testimony, as to whether Jordan's physical inability to resume his former employment as a switchman was caused by the injury having aggravated a preexisting back problem, or whether that physical inability to resume work was solely the result of his preexisting back problem itself. This question for the jury was what caused his physical inability to resume work as a switchman.

Over Jordan's objection, the district judge gave an instruction that restricted the jury's consideration of the loss of future earnings and benefits, even if the jury found the injury was the cause of his physical inability to return to work. The instruction was:

Should you find that the plaintiff would have been disqualified for employment with defendant Santa Fe, if his pre-existing unstable back had been detected before his injury then you should not award the plaintiff further wages based on what plaintiff would have earned had he continued working for defendant Santa Fe.

This instruction introduced a new limitation on entitlement to the loss of future earnings that was not dependent upon Jordan's prior physical ability to do the work, but rather on his qualification to do so. The court relied upon the authority of Parra v. Atchison, Topeka & Santa Fe Ry. Co., 787 F.2d 507 (10th Cir.1986) in deciding to give the instruction. Although the other usual instructions concerning the calculation of loss of future earnings and earning capacity were given, this instruction loomed large as a limiting factor because the principal evidence relied upon by Jordan's expert witness in the calculation of the loss of future earnings was based upon the difference between the wages and benefits Jordan was able to earn had he been able to continue to work as a switchman for Santa Fe and the wages and benefits he was able to earn in his permanently disabled condition. One of the defense attorneys stated in final argument that this instruction was "the most important jury instruction in the case." TR V117, pg. 180.

Jordan had been employed as a switchman by Santa Fe for over eight years. He had passed the physical examination when he was hired and had passed several since. He experienced no physical problems in doing his work. The testimony of his treating physician, Dr. Eskay-Auerbach, provided evidence that as a result of the aggravation caused by the injury to his preexisting back condition, he was no longer able to work as a switchman. Jordan's personal testimony corroborated this.

The doctor testifying for the defense, Dr. Zoltan, stated that it was the preexisting back condition that was causing the disability, preventing Jordan from resuming his employment as a switchman. A Santa Fe official testified that if the company had known that Jordan had the preexisting back weakness, he would not have been approved for employment as a switchman and that had Santa Fe learned of the problem, they would have withheld him from service.

The effect of the instruction was to require the jury to find that even if the injury was the physical cause of Jordan's inability to resume his employment, ...