Molnar v. Elgin, Joliet and Eastern Ry. Co.

• Decision Date: 16 September 1988
• Docket Number: No. 86 C 6284.,86 C 6284.
• Citation: 697 F. Supp. 306
• Parties: Eugene MOLNAR, Plaintiff, v. ELGIN, JOLIET AND EASTERN RAILWAY COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Illinois

697 F. Supp. 306

Eugene MOLNAR, Plaintiff, v. ELGIN, JOLIET AND EASTERN RAILWAY COMPANY, Defendant.

No. 86 C 6284.

United States District Court, N.D. Illinois, E.D.

September 16, 1988.

John C. Sands, Chicago, Ill., for plaintiff.

George W. Gessler, Terence E. Flynn, Gessler, Wexler, Flynn, Laswell & Fleischmann, Chicago, Ill., for defendant.

MEMORANDUM OPINION AND ORDER

ASPEN, District Judge:

Plaintiff Eugene Molnar, forty years of age, brought suit against his employer the defendant Elgin, Joliet and Eastern Railway Company ("Elgin"), under the Federal Employer's Liability Act, 45 U.S.C. §§ 51-60 (1982) ("FELA"), and the Safety Appliance Act, 45 U.S.C. § 4 (1982), for damages resulting from injuries suffered in a crossing accident. In separate trials, a jury first found for Molnar on the issue of liability, then awarded him $859,110 for damages. Pursuant to Rule 59 of the Federal Rules of Civil Procedure, Elgin brings a motion for a new trial on the issue of damages.¹ For the reasons noted below, we deny the motion, conditional upon Molnar's acceptance of a remitittur.² The defendant also raises objections to certain items on Molnar's bill of costs. We rule on each item as indicated below.

Facts

Molnar fell from a train car when a grab iron he was holding gave way. He was knocked unconscious, treated, released, and he returned to work shortly thereafter. He continued to work for more than a year after the accident but experienced severe pain in his neck, back and limbs. He sought medical treatment during this period from Dr. Bernardo Saavedra. However, the treatment prescribed proved ineffective. He changed doctors and came under the care of Dr. Ernest Stiller. New tests revealed degenerated intervertebral discs in Molnar's neck and lower back, causing pain in the back and limbs. Dr. Stiller dissolved the discs in the lower back with a fluid and referred Molnar to Dr. Ernesto Zelaya, a neurosurgeon, who performed an operation (laminectomy) removing the discs in Molnar's neck. This resulted in improvement in Molnar's condition, relieving to a degree the pain in his arm. At the time of trial, he was still undergoing physical therapy for residual numbness and weakness in his arm. Molnar has continued to have problems with his lower back, and Dr. Stiller testified at trial that a surgical procedure to fuse the vertebrae in Molnar's lower back may be necessary in order to enable him to put pressure on his back and to relieve his pain. During this period, Molnar also had minor operations on his wrist and elbow.

I. Misrepresentation/Misconduct of Plaintiff's Counsel

Elgin argues in support of its motion that Molnar's counsel materially misrepresented the medical evidence in his closing argument by stating, "he's lost his pension, his full pension, because he doesn't get credit unless he works. And the doctors have indicated that he is never going to be able to go back to work with the railroad." Record at 599. Misconduct of counsel justifies a new trial where the misconduct prejudiced the adverse party. Wiedemann v. Galiano, 722 F.2d 335, 337 (7th Cir.1983). The trial court's discretion is involved in determining whether or not the trial was fair to the moving party. Id.

Initially, it is pertinent to observe that the Seventh Circuit has held that in some cases where a party fails to voice its objection at trial, thus allowing the trial court to ameliorate the situation by a curative instruction, the prejudicial comments are not fundamental error which require reversal. Gonzalez v. Volvo of Am. Corp., 752 F.2d 295, 298 (7th Cir.1985). The transcript of record in the instant case discloses no such objection by Elgin to Molnar's counsel's closing remarks. Nevertheless, notwithstanding Elgin's lack of contemporaneous objection, Elgin has failed to show the plaintiff's counsel's remarks were prejudicial.

II. Causation

The defendant claims that the verdict is against the weight of the evidence because the plaintiff did not establish a causal connection between the accident and the medical conditions from which he now suffers. We disagree. Under the FELA, the standard for causation is comparatively weak, requiring only that the plaintiff show that employer negligence played any part, however small, in producing the injury or death for which damages are sought. Rogers v. Missouri Pacific R.R. Co., 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493 (1957). Both of Molnar's physicians testified, in response to pointed questions from the plaintiff's attorney, that the lower back and neck conditions for which they treated him could have been caused by the trauma he suffered in the accident. Record at 382-383, 441. This is ample evidence that the accident played a role in producing Molnar's back and neck conditions.

While we agree with the defendant that the plaintiff did not establish causation as to the operations on Molnar's wrist and elbow, we find that these matters were insignificant relative to the seriousness of Molnar's neck and lower back conditions. They could only have had a negligible impact on an award of the size justified by damages resulting from Molnar's neck and back conditions.

The operation on Molnar's elbow was only mentioned twice. Dr. Stiller performed the operation, but was asked no questions about it. Dr. Zelaya mentioned that he noticed a cast on Molnar's elbow. Record at 389-390. Molnar mentioned the operation but was only asked to show the jury the scar. Record at 307-308. None of the medical details were explored. It was obviously a peripheral matter.

There is a little more testimony about the operation on Molnar's wrist.³ The defendant claims that Dr. Stiller testified that the pain in Molnar's arm was caused by a pinched nerve in his wrist, not pinching of the nerves in the neck. This is not the full story. Dr. Stiller testified that both the pinched nerves in the neck and the wrist could cause pain in the arm. Dr. Stiller performed the operation on Molnar's wrist in the hope that it would relieve the pain sufficiently to obviate surgery on Molnar's neck. It did not, however. Record at 470. See generally n. 3. Since the pinched nerve in the wrist and the subsequent operation had no significant effect on Molnar's other conditions, the fact that the plaintiff did not establish causation is of no consequence to an award of the size justified by the neck and lower back conditions. Failing to establish causation with respect to the wrist and elbow conditions, therefore, does not warrant a new trial.

III. Excessiveness

A district court should set aside a jury verdict if it is "grossly excessive," Abernathy v. Superior Hardwoods, Inc., 704 F.2d 963, 971 (7th Cir.1983) (Posner, J.), "monstrously excessive," or if there is "no rational connection between the evidence on damages and the verdict." Joan W. v. City of Chicago, 771 F.2d 1020, 1023 (7th Cir.1985) (following Abernathy). To determine if a particular award falls within one of these categories, it follows that the court must be able to consider and weigh the evidence for itself. Cf. Spanish Action Comm. v. City of Chicago, 766 F.2d 315, 321 (7th Cir.1985) (court can weigh evidence, credibility of witnesses, on motion for new trial). See also 11 C. Wright & A. Miller, Federal Practice and Procedure § 2806 at 45, § 2807 at 51-52.⁴

In our charge to the jury, we listed the following elements of damages: (1) Present cash value of reasonable expenses of medical care (past and future), Record at 620; (2) Value of earnings lost, Record at 620; (3) Past and future pain and suffering, Record at 620; (4) Disability and disfigurement, Record at 620; and (5) Present value of future lost earnings, Record at 620-621. We believe the following to be the maximum amounts the jury could have awarded for the first four elements of damages: (1) $60,000 for medical expenses, Record at 484; (2) $97,653 for lost past earnings and benefits, Record at 348; (3) $50,000 for pain and suffering, Record at 281, 284, 290-291, 293, 298; (4) $50,000 for disability, Record at 308-309. This leaves, out of the total award, approximately $601,000 for lost future wages and benefits. This amount is grossly excessive in light of the evidence.

We do not minimize the seriousness of Molnar's situation by reaching this conclusion. He has apparently suffered a substantial injury which will affect him well into the future. However, we do not feel that an award amounting to nearly 70 percent of the amount requested by his attorney is supported by the evidence.

The specific amount requested for lost future wages and benefits was taken from the testimony of Professor Arthur Dobbelaere, an economist. The figure calculated by Professor Dobbelaere — $888,905 — assumes that Molnar will not earn any income in the future. Record at 351, 361. And so for the jury to award nearly 70 percent of this amount, its members must have assumed that Molnar would not be able to return to work as an engineer, thereby losing his benefits, and that he would only be able to earn a small fraction of what he was earning as an engineer. It is with these conclusions that we take issue.

There are several reasons for this. The testimony on Molnar's future employability is, at best, uncertain. Dr. Stiller, Molnar's orthopedic surgeon, testified that Molnar would be able to tolerate the physical demands of jobs requiring heavy labor if the spinal fusion procedure he recommends is successful. Record at 481-482. But this procedure is only successful about half the time. Id. Dr. Stiller discounted Molnar's neck injuries with regard to doing heavy work.⁵ Record at 482. On the other hand, Dr. Zelaya, Molnar's neurosurgeon, testified that he recommends patients with neck problems similar to Molnar's avoid physically demanding work, suggesting that Molnar would not be able to return to his job even if the spinal fusion procedure were successful. Record at 393-394. Given this conflicting testimony, we do...