Griesser v. NAT. RR PASSENGER CORP.

• Decision Date: 19 October 2000
• Citation: 761 A.2d 606
• Parties: Joseph P. GRIESSER, Appellant, v. NATIONAL RAILROAD PASSENGER CORPORATION, Appellee.
• Court: Pennsylvania Superior Court

761 A.2d 606

Joseph P. GRIESSER, Appellant, v. NATIONAL RAILROAD PASSENGER CORPORATION, Appellee.

Superior Court of Pennsylvania.

Argued July 26, 2000.

Filed October 19, 2000.

Marvin I. Barish, Philadelphia, for appellant.

Thomas F. Reilly, Philadelphia, for appellee.

BEFORE: KELLY, JOYCE, and LALLY-GREEN, JJ.

LALLY-GREEN, J.:

¶ 1 Appellant, Joseph Griesser, appeals from the judgment entered October 26, 1999, following a jury trial. This case presents an issue of first impression in Pennsylvania regarding the interplay of the collateral source rule and the Federal Employers' Liability Act (FELA).¹ Appellant argues that the trial court erred by introducing evidence which is barred by the collateral source rule. We agree and, therefore, vacate the judgment.

¶ 2 The facts of the case are as follows. On February 7, 1994, Appellant sustained injuries in the course of his employment after falling backward onto the deck of a flatbed truck. On January 19, 1997, Appellant filed a FELA action against his employer, defendant/appellee National Railroad Passenger Corporation (Amtrak). After a five-day trial in April 1998, a jury found Amtrak 50% negligent and Appellant 50% contributorily negligent. N.T., 4/14/98, at 4. The jury found that Appellant suffered a total of $419,500 in damages.² On October 26, 1999, the trial court entered judgment for Appellant in the amount of $209,750, reflecting Appellant's 50% contributory negligence. This appeal followed.

¶ 3 Appellant raises four issues on appeal:

I. Whether the trial court, over vigorous objection of counsel, erroneously permitted defendant to repeatedly inject collateral source evidence into the proceedings?

II. Whether the trial court's negligence instruction, which erroneously engrafted common law concepts of proximate causation onto [FELA], prejudicially impacted the verdict? III. Whether the trial court's contributory negligence instruction, which abrogated the railroad's burden of proof on this defense, erroneously sanctioned a diminution in plaintiff's damages under circumstances not warranted by federal decisional law?

IV. Whether the trial court, absent any affirmative showing of prejudice to the defendant, erroneously denied plaintiff's request to retain a substitute expert, and whether improvident comments from the bench and opposing counsel further exacerbated the resulting harm?

Appellant's Brief at 2. Because Appellant's first issue has merit, we need not address the remaining issues.

¶ 4 Appellant argues that the trial court committed reversible error by allowing the jury to hear evidence that Appellant could retire with full pension benefits at age 60. According to Appellant, this evidence violates the collateral source rule. Before discussing the applicable law, it is necessary to examine in detail the factual basis of Appellant's claim.

¶ 5 The record reveals the following. Appellant was age 45 at the time of trial. N.T., 4/7/98, at 74. Appellant presented an expert to testify as to future lost earning capacity. N.T., 4/8/98, at 66-93. This expert's calculations were based on an expected retirement age of either 65 or 70. Id. at 76-77; 79-80. On cross-examination, the expert was asked whether he was "aware that railroad employees who attain the age of 60 who have 30 years of experience are entitled to full retirement benefits." Id. at 82. Appellant's counsel objected, arguing that evidence of such benefits would violate the collateral source rule. Id. at 82-85. The court overruled the objection on the ground that the evidence "does not introduce collateral source." Id. at 85. After the question was repeated, the expert answered, "No. I don't know the exact wording of it." Id. at 85. The expert did, however, volunteer that "the figures would be the same" if Appellant retired at age 60 with full benefits, because "earnings were provided through some other means." Id. at 86. After a sidebar, the trial court sustained an objection to further inquiry into this matter. Id. at 86-88.

¶ 6 On the next day, April 9, 1998, Amtrak began presenting its case in chief. Amtrak presented an expert forensic economist to testify as to Appellant's lost earnings. Over Appellant's counsel's objection, this expert testified in relevant part as follows:

I measured—assuming [Appellant] would retire at 60, 62, and 66. Sixty is the age given [Appellant's] seniority he could have retired from the railroad and would have been eligible for full benefits.... [A]t age 62 if he were to retire then it turns out that given the pension benefits he would have been eligible for, he would be basically making as much after taxes from pension as he would from earnings.

N.T., 4/9/98, at 127.

¶ 7 Our standard of review is well settled. When reviewing a trial court's denial of a request for a new trial, "we must determine whether the trial court clearly and palpably abused its discretion or committed an error of law which affected the outcome of the case." Brinich v. Jencka, 757 A.2d 388, 2000 PA Super 209 at ¶ 15 (citation omitted). "When improperly admitted testimony may have affected a verdict, the only correct remedy is the grant of a new trial." Collins v. Cooper, 746 A.2d 615, 620 (Pa.Super.2000) (citation omitted).

¶ 8 We now turn to the interplay between FELA and the collateral source rule. FELA is a federal statute which provides the framework for handling claims of injury by federal railroad workers. Hileman v. Pittsburgh & Lake Erie R.R., 546 Pa. 433, 685 A.2d 994, 998 n. 1 (1996) (citation omitted). Unlike modern systems of workers' compensation, FELA requires a claimant to prevail in a negligence action against his employer in order to recover. Id. at 998 n. 1.

¶ 9 "[S]tate courts have jurisdiction to try FELA claims." Id. at 997, citing 45 U.S.C. § 56. State courts handling FELA claims are required to apply substantive federal law. Id. Under FELA, the collateral source rule is a "substantive precept of federal common law," and not a rule of evidence. Id. Accordingly, we review the trial court's decision for an error of law and not for an abuse of discretion. Id. ("balancing analysis," where court weighs probative value and prejudicial effect of collateral source evidence, is inappropriate under FELA).

¶ 10 Generally, "[t]he collateral source rule provides that payments from a collateral source shall not diminish the damages otherwise recoverable from the wrongdoer." Johnson v. Beane, 541 Pa. 449, 664 A.2d 96, 100 (1995). This rule "was intended to avoid precluding a claimant from obtaining redress for his or her injury merely because coverage for the injury was provided by some collateral source, e.g. insurance." Beechwoods Flying Service, Inc. v. Al Hamilton Contracting Corp., 504 Pa. 618, 476 A.2d 350, 352 (1984); see also, id. at 353 (the rule is "intended to prevent a wrongdoer from taking advantage of the fortuitous existence of a collateral remedy"); Denardo v. Carneval, 297 Pa.Super. 484, 444 A.2d 135, 140 (1982) ("Pennsylvania law is clear; the victim of a tort is entitled to the damages caused by the tortfeasor's negligence regardless of compensation the victim receives from other sources"), citing, inter alia, Boudwin v. Yellow Cab Co., 410 Pa. 31, 188 A.2d 259 (1963)

.

¶ 11 The seminal case regarding the collateral source rule in the context of FELA is Eichel v. New York Cent. R. Co., 375 U.S. 253, 84 S.Ct. 316, 11 L.Ed.2d 307 (1963) (per curiam). In that case, the plaintiff alleged that he sustained permanent, disabling injuries as a result of his employer's negligence. The employer attempted to introduce evidence that the plaintiff was receiving disability pension payments under the Railroad Retirement Act of 1937. Id. at 253, 84 S.Ct. 316. The employer explained that the evidence was probative of the plaintiff's motive for not returning to work. Id. at 254, 84 S.Ct. 316. The trial court excluded this evidence. Id. The Court of Appeals for the Second Circuit reversed, holding that the evidence should have been admitted. Id. The Supreme Court reversed and held that the evidence was properly excluded. Id.

¶ 12 The Supreme Court reasoned that the disability pension benefits could not be used to offset or mitigate the employer's damages. Id. The Supreme Court rejected the argument that the evidence should have been admitted to show the plaintiff's motive for not returning to work:

In our view the likelihood of misuse by the jury clearly outweighs the value of this evidence. Insofar as the evidence bears on the issue of malingering, there will generally be other evidence having more probative value and involving less likelihood of prejudice than the receipt of a disability pension. Moreover, it would violate the spirit of the federal statutes if the receipt of disability benefits under the [Railroad Retirement Act] were considered as evidence of malingering by an employee asserting a claim under the Federal Employers' Liability Act. We have recently had occasion to be reminded that evidence of collateral benefits is readily subject to misuse by a jury. Tipton v. Socony Mobil Oil Co., Inc., 375 U.S. 34 [1963]. It has long been recognized that evidence showing that the defendant is insured creates a substantial likelihood of misuse. Similarly, we must recognize that the petitioner's receipt of collateral social insurance benefits involves a substantial likelihood of prejudicial impact. We hold therefore that the District Court properly excluded the evidence of disability payments.

Id. at 255, 84 S.Ct. 316 (footnotes omitted).³

¶ 13 Eichel involves "a straightforward application of the collateral source rule: a defendant may not introduce evidence that a plaintiff has received compensation on account of his injury from a source other than the defendant." Hileman, 685 A.2d at 997. This was so even though the plaintiff in Eichel was currently receiving disability benefits which were directly attributable to the injury at issue.

¶ 14 Federal and...