Nairn v. National R.R. Passenger Corp.

• Decision Date: 20 January 1988
• Docket Number: No. 182,D,182
• Citation: 837 F.2d 565
• Parties: , 56 USLW 2418 Richard NAIRN, Plaintiff-Appellee, v. NATIONAL RAILROAD PASSENGER CORPORATION, Defendant-Appellant. ocket 87-7435.
• Court: U.S. Court of Appeals — Second Circuit

Page 565

837 F.2d 565

97 A.L.R.Fed. 177, 56 USLW 2418

Richard NAIRN, Plaintiff-Appellee, v. NATIONAL RAILROAD PASSENGER CORPORATION, Defendant-Appellant.

No. 182, Docket 87-7435.

United States Court of Appeals, Second Circuit.

Argued Nov. 19, 1987.

Decided Jan. 20, 1988.

Charles C. Goetsch, New Haven, Conn. (Cahill, Goetsch & DiPersia, P.C., of counsel), for plaintiff-appellee.

Charles A. DeLuca, Stamford, Conn. (Ryan, Ryan & Hickey, of counsel), for defendant-appellant.

Before LUMBARD, KEARSE and ALTIMARI, Circuit Judges.

ALTIMARI, Circuit Judge:

The National Railroad Passenger Corporation ("the Railroad") appeals from an order of the United States District Court for the District of Connecticut, Warren W. Eginton, Judge, refusing to grant a new trial due to excessiveness of the jury verdict in a case brought under the Federal Employers' Liability Act ("FELA"), 45 U.S.C. Sec. 51 et seq. The plaintiff, Richard Nairn ("Nairn"), suffered a permanent back injury while performing his job as a construction foreman, which he alleged was caused by the Railroad's negligence. The jury found in favor of Nairn and awarded him damages in the amount of $765,000. After a careful review of the evidence in this case, we conclude that this is one of those rare instances where the jury's verdict was excessive as a matter of law. Accordingly, we vacate the judgment and remand for a new trial on the issue of damages.

BACKGROUND

At the time of his injury, Nairn was employed by the Railroad as foreman of a construction and repair crew in New Haven, Connecticut. He was 33 years old and married with four children. On the morning of December 26, 1984, Nairn injured his back while attempting to lift a piece of heavy equipment which had become embedded in ice. Nairn continued working that day, but when the pain did not subside, he went to the emergency room of a local hospital. He was advised to go home and rest, and to consult an orthopedic specialist if the pain persisted.

Nairn continued to experience pain, and on January 7, 1985, Nairn had the first of a series of appointments with Dr. DePonte, his family's orthopedic surgeon. Dr. DePonte ordered several tests to be performed, including x-rays, a CAT scan, and a myelogram; all the results were normal. Nairn attempted to return to work one day In March 1985, Nairn consulted a neurologist, Dr. Robinson, who diagnosed Nairn as having a "musculoligamentous strain" and advised him to return to work. Nairn worked from mid-March until the end of June 1985, although his back pain persisted. On June 28, 1985, Nairn re-injured his back while shoveling wet sand at a construction site. After this he quit working once again. In July 1985, Nairn visited Dr. Robinson, who suggested that Nairn undergo a Magnetic Resonance Image ("MRI") test. The MRI results showed a "slight decrease in signal at the L5-S1 disc space," the first positive test finding since Nairn's original injury. Dr. Robinson interpreted the MRI results as evidence of mild disc degeneration.

during January, but after driving in a truck for a couple of hours, was in so much pain that he had to return home.

Nairn then began a course of physical therapy, but discontinued it when he failed to improve. In the fall of 1985, Dr. DePonte advised Nairn that he had a permanent partial disability and would be unable to return to his former job with the Railroad. Dr. DePonte assessed Nairn as having a permanent back function impairment of 15%.

Once Nairn learned that his disability was permanent, he began to contemplate litigation against the Railroad. He commenced the instant FELA action in October 1985, seeking one million dollars in damages. On the advice of his attorney, he consulted Dr. Taub, a specialist in chronic pain, on February 3, 1986. Dr. Taub studied the results of the MRI test and concluded that there was "moderate-to-marked" dessication of the intervertebral disc space at the L5-S1 level. Dr. Taub diagnosed Nairn as having suffered a "lumbosacral sprain productive of intervertebral disc derangement." Dr. Taub agreed with Dr. DePonte's assessment of a 15% permanent back impairment, and suggested that Nairn seek employment at the "medium duty" level, which would entail lifting no more than 50 pounds.

In February 1986, one of Nairn's friends offered him a general maintenance position at an apartment complex. Nairn accepted this position, where he worked as an independent contractor and was able to set his own hours. At the time of trial, Nairn was working approximately 32-40 hours per week at a salary of $10.25 per hour, with no benefits. Nairn's salary at the Railroad had been $11.85 per hour with very good benefits.

In May 1986, Nairn visited Dr. Taub again, after tripping in a parking lot. At that time, Dr. Taub advised Nairn to restrict his employment to "light duty" work. Nairn's job at the apartment complex was consistent with this recommendation.

Nairn's suit against the Railroad was tried before a jury on February 10 through 13, 1987. Dr. Taub testified as Nairn's medical expert, summarizing Nairn's medical history following the injury. Dr. Goodman, testifying as the Railroad's medical expert, concluded that Nairn had only a 5% functional impairment. Various Railroad employees testified about the condition of the construction yard where Nairn was injured. Nairn himself testified as to the circumstances of his injury, his course of medical treatment, and the restrictions on his activities which he was forced to endure as a result of his partial disability.

The jury found that the Railroad was negligent in maintaining its equipment storage yard and that this negligence caused Nairn's injury. The jury returned a verdict in favor of Nairn in the amount of $765,000. The Railroad moved for a new trial on several grounds, including excessiveness of the verdict. Judge Eginton denied the motion without opinion.

DISCUSSION

The only issue which the Railroad raises on appeal is the amount of the verdict. A jury verdict is not, certainly, something lightly to be set aside. A district court's refusal to grant a new trial on the ground of excessiveness of the verdict may only be overturned for abuse of discretion. See Martell v. Boardwalk Enterprises, Inc., 748 F.2d 740, 750 (2d Cir.1984); Batchkowsky v. Penn Central Co., 525 F.2d 1121, 1124 (2d Cir.1975).

As a reviewing court, we are not permitted to vacate or reduce a jury award merely because we would have granted a lesser amount of damages. Rather, "we may order a new trial only when the verdict is irrational or so high as to shock the judicial conscience, rendering it an abuse of discretion not to set it aside." Batchkowsky, 525 F.2d at 1124; see also Dagnello v. Long Island Rail Road Co., 289 F.2d 797, 806 (2d Cir.1961) (appellate court may only set aside verdict where it would be a "denial of justice" to let it stand).

In order to determine whether a district court abused its discretion by refusing to order a new trial on damages, the appellate court must make its own "detailed appraisal of the evidence bearing on damages." Grunenthal v. Long Island Rail Road Co., 393 U.S. 156, 159, 89 S.Ct. 331, 333, 21 L.Ed.2d 309 (1968). We proceed, then, to analyze the damages evidence in Nairn's case.

The damages award consisted of compensation for lost income and pain and suffering. Medical expenses were not included because the Railroad had paid all of Nairn's medical expenses. It was stipulated that the after-tax value of Nairn's Railroad job, including benefits, was approximately $32,277 per year. Nairn had received regular annual wage increases. Prior to starting work at the apartment complex, Nairn had $16,922 in lost wages. It was further stipulated that Nairn's work-life expectancy was 26.5 years and that his life expectancy was 37.7 years.

When Nairn began working at the apartment complex, his rate of pay was $8.50 per hour. This was subsequently increased to $10.25 per hour. Nairn testified that he did not expect any substantial wage increase in the forseeable future but offered no evidence as to why this would be so. At the apartment complex, Nairn worked as an independent contractor and did not receive benefits such as medical insurance or a pension plan. He had made no attempt to seek comparable employment which would offer such benefits. At first Nairn worked a limited number of hours at his new job, but by the time of trial, he was working between 32 and 40 hours per week.

Nairn calculated his current average weekly income to be approximately $337. At this rate of pay, the after-tax value of his apartment complex job would be approximately $16,300 per year, or approximately $15,980 less than the value of his Railroad job.

Nairn did not offer expert testimony regarding the present value of his future lost earnings, nor did his counsel suggest any numbers to the jury. The jury was instructed to apply a 2% discount rate to its award. If the jury accepted Nairn's estimate of his current income, adopted the work-life expectancy of 26.5 years, and followed the judge's instructions regarding the discount rate, then it is likely to have awarded no more than $350,000 for past and future lost earnings. This would leave at least $400,000 of the award for pain and suffering.

The medical experts agreed that Nairn had suffered a lumbosacral strain which produced a certain degree of disc degeneration. At most, Nairn had a 15% impairment of back function. Other than his initial visit to the emergency room, he had never been hospitalized or required surgery. Nairn had clearly experienced a great deal of pain, however, and continued to have his good days and bad days up to the time of trial. Although he was relegated to light-duty work, and could not sit for prolonged periods, his capacity for working had increased significantly over the course of the year preceding trial.

Both Nairn and his wife testified that prior to the injury, Nairn had enjoyed a variety of...