North Southern v. Tiller

• Decision Date: 31 March 2008
• Docket Number: No. 0667, Sept. Term, 2007.,0667, Sept. Term, 2007.
• Parties: NORFOLK SOUTHERN RAILWAY CORPORATION, et al. v. Henry TILLER.
• Court: Court of Special Appeals of Maryland

944 A.2d 1272

179 Md. App. 318

NORFOLK SOUTHERN RAILWAY CORPORATION, et al. v. Henry TILLER.

No. 0667, Sept. Term, 2007.

Court of Special Appeals of Maryland.

March 31, 2008.

Frederick L. Kobb (Jason R. Potter, Wright, Constable & Skeen, LLP, on the brief), Baltimore, for Appellant.

Paul J. Riley (Barish, Rosenthal on the brief), Philadelphia, PA, Henry L. Belsky, Schlachman, Belsky & Weiner, PA, on the brief, Baltimore, for Appellee.

Panel: KRAUSER, C.J., ADKINS and CHARLES E. MOYLAN, JR. (retired, specially assigned), JJ.

CHARLES E. MOYLAN, Jr., Judge, retired, specially assigned.

The injured railroad employee in this case is doubly protected against the risk of diminution of his award for damages. As a successful plaintiff, he is protected by Maryland's collateral source rule generally. His protection is enhanced by that rule's favored status within the special context of the Federal Employers' Liability Act ("FELA").

Procedural Background

The appellant is the Norfolk Southern Railway Corporation. The appellee, Henry Tiller, had been, as of the time of the accident, an employee of Norfolk Southern for 29 years and 5 months. On March 31, 2004, Tiller was struck on the head by the boom of a crane mounted on a wreck truck, then being operated by his supervisor. The injury was to Tiller's neck. He has been determined to be totally disabled and unable to return to work.

On September 13, 2005, Tiller brought suit under FELA in the Circuit Court for Cecil County, alleging negligence on the part of Norfolk Southern for not providing him a reasonably safe workplace. Prior to trial, Norfolk Southern conceded its negligence. Liability, therefore, is not an issue before us. Trial proceeded before Judge O. Robert Lidums and a jury, exclusively on the issue of damages. The jury awarded damages to Tiller in the amount of $1,001,278. Norfolk Southern has appealed from that award.

The Appellate Issue

The single issue before us is the admissibility of certain evidence offered by Norfolk Southern bearing on the computation of damages. Prior to trial, Tiller filed a Time of Trial Motion to Limit the Testimony of Norfolk Southern's Economic Expert Witness Thomas Walsh. The motion sought to preclude Walsh from testifying that Tiller, who was at trial time 52 years of age, would be eligible to retire "with full benefits" at 60 years of age.¹ Judge Lidums granted Tiller's motion.

Narrowing the Focus

The damages award was in the total amount of $1,001,278. That award was broken down into four subcategories:

                Loss of past earnings.........$141,317
                Past pain and suffering.......$100,500
                Future pain and suffering.....$190,532
                Loss of future earnings.......$568,929
                

Accepting at face value the purpose for which Norfolk Southern sought to offer the evidence of Tiller's expected retirement benefits, that evidence would have had a bearing only on the fourth of the subcategories of damages, to wit, on Tiller's loss of future earnings.

The calculation is straightforward. Once the multiplicand of lost wages for the present year is established, the multiplier is then the number of years between the employee's current age and the age at which the employee would ordinarily have been expected to stop working if the injury had not occurred. That expectation inevitably involves some degree of speculation. A number of factors may enter into the making of what amounts to such an educated guess. One significant factor, of course, is the announced intention of the employee himself. Even if an employee is eligible to retire at age 60, he is not required to do so. Tiller testified that, prior to his injury, he had always thought that he would continue to work into his mid-60's, probably stopping at about age 65. Looking ahead to age 65 from the then present age of just under 52 would have given the jury a multiplier of 13 years (and a few months).

Norfolk Southern's trial strategy, on the other hand, was to persuade the jury that Tiller was eligible to retire at age 60 and, therefore, would most likely retire at age 60. Looking ahead to age 60 from the then present age of just under 52 would have given the jury a smaller multiplier of 8 years (and a few months). A reduction in the multiplier from 13+ to 8+ would have reduced the product, the future lost wages, proportionately.² What Norfolk Southern was hoping to do, therefore, was apparent. It wanted to inform the jury that Tiller was eligible to receive retirement benefits at age 60 in order to persuade the jury that, notwithstanding his testimony to the contrary, he in all likelihood would have stopped working at age 60.

Norfolk Southern's contention that the evidence of retirement eligibility was erroneously excluded takes two forms:

1. The evidence generally was admissible; and

2. Even if presumptively inadmissible because of the collateral source rule, Tiller "opened the door" to its admissibility when his economic expert made a reference to Social Security benefits.

The Special FELA Context

This is no ordinary tort case, although it has some characteristics thereof. It is a FELA case, and that designation places it in a special legal province all of its own with special rules of its own. Although FELA has been on the books for a full century, since 1908, the Maryland case law dealing with it remains skimpy. In CSX v. Miller, 159 Md.App. 123, 128-46, 858 A.2d 1025 (2004), we examined in depth its special characteristics. And see Haischer v. CSX, 381 Md. 119, 848 A.2d 620 (2004); Bittinger v. CSX, 176 Md.App. 262, 932 A.2d 1243 (2007). In CSX v. Miller, 159 Md.App. at 129, 858 A.2d 1025, we commented on one unusual feature of a FELA action:

The FELA law is a hybrid. It hovers ambivalently between workers' compensation law and the common law tort of negligence. It is neither, but it partakes of characteristics of both.

In Kernan v. American Dredging Co., 355 U.S.426, 431-32, 78 S.Ct. 394, 2 L.Ed.2d 382 (1958), Justice Brennan recounted the provenance of FELA as a deliberate policy recognition that the railroad industry itself was better able to shoulder the cost of industrial injuries and deaths than were the industry's injured workers or their families.

[I]t came to be recognized that, whatever the rights and duties among persons generally, the industrial employer had a special responsibility toward his workers, who were daily exposed to the risks of the business and who were largely helpless to provide adequately for their own safety. Therefore, as industry and commerce became sufficiently strong to bear the burden, the law, the reflection of an evolving public policy, came to favor compensation of employees and their dependents for the losses occasioned by the inevitable deaths and injuries of industrial employment, thus shifting to industry the "human overhead" of doing business. For most industries this change has been embodied in Workmen's Compensation Acts. In the railroad and shipping industries, however, the FELA and Jones Act provide the framework for determining liability for industrial accidents.

(Emphasis supplied).

In Consolidated Rail Corporation v. Gottshall, 512 U.S. 532, 542, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994), the Supreme Court more recently reaffirmed that energizing purpose of FELA:

Cognizant of the physical dangers of railroading that resulted in the death or maiming of thousands of workers every year, Congress crafted a federal remedy that shifted part of the "`human overhead'" of doing business from employee to their employers.

From FELA's history and its animating philosophy, this Court concluded in CSX v. Miller:

Thus, although the FELA is not a workers' compensation act, the social forces that produced it and the generating spirit that drives it resonate with the language and philosophy of workers' compensation principles.

159 Md.App. at 131, 858 A.2d 1025 (emphasis supplied).

An Employee-Friendly Standard of Review

Routinely at the outset of an opinion, we make reference to the controlling standard of appellate review. It is particularly appropriate that we do so in a FELA case. Because of its midway position between a common law action in negligence and a workers' compensation claim, a FELA case calls for an interpretative approach that is significantly different from that which ordinarily prevails in a suit for common law negligence. As early as Jamison v. Encarnacion, 281 U.S. 635, 640, 50 S.Ct. 440, 74 L.Ed. 1082 (1930), the Supreme Court set out a basic guideline:

The Act is not to be narrowed by refined reasoning. It is to be construed liberally to fulfill the purposes for which it was enacted.

(Emphasis supplied).

The Supreme Court's literal holding of Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949), does not concern us, but the psychological attitude with which it approached a FELA problem does. Without any clear textual predicate for doing so, the Supreme Court boldly asserted that FELA covered occupational diseases as surely as it covered accidental physical injuries. The text of the Congressional act itself by no means compelled such a sweeping result. The primary rationale advanced by the Court for so bold an expansion of FELA's coverage was the act's broad energizing purpose.

Considerations arising from the breadth of the statutory language, the Act's humanitarian purposes, its accepted standard of liberal construction in order to accomplish those objects, the absence of anything in the legislative history indicating a congressional intent to require a restricted interpretation or expressly to exclude such occupational disease, and the trend of existing authorities dealing with the question, combine to support this conclusion.

337 U.S. at 180-81, 69 S.Ct. 1018 (emphasis supplied). The Supreme Court summarized a series of its earlier liberal interpretations of FELA:

We think they were made in the spirit the statute contemplated for its administration and application. That spirit is one not in...