Edwards v. Atchison, Topeka & Santa Fe Ry. Co.
Annotate this Case
FIRST DIVISION
August 25, 1997
No. 1-95-3138
JOHN M. EDWARDS,
Plaintiff-Appellee,
v.
THE ATCHISON, TOPEKA and SANTA FE
RAILWAY COMPANY, a company,
Defendant-Appellant. )
)
)
)
)
)
)
)
) Appeal from the
Circuit Court of
Cook County
Honorable
Cyril J. Watson,
Judge Presiding.
JUSTICE O'BRIEN delivered the opinion of the court:
Plaintiff, John Edwards, brought an action pursuant to the
Federal Employers' Liability Act (45 U.S.C. 51 et seq. (1994))
against his employer, the Atchison and Santa Fe railway company
(defendant), to recover damages for personal injuries he sustained
during the course of his employment. A jury returned a verdict in
favor of plaintiff and assessed damages in the total amount of
$450,000, including $150,000 for future loss of earnings. The jury
found plaintiff was 5% contributorily negligent and reduced the
award to $427,500. The court amended the judgment to reflect a
set-off and an award of costs in favor of plaintiff, and entered a
final judgment of $426,918.72.
Defendant appeals, contending the trial court erred by: (1)
barring defendant from introducing evidence regarding plaintiff's
alternate employment options; (2) admitting hearsay evidence; (3)
allowing plaintiff's medical expert to give opinions not based on
a reasonable degree of medical certainty; (4) refusing to allow
defendant to introduce into evidence allegedly false statements
plaintiff made while under oath in a deposition; (5) allowing
evidence of a proposed merger between defendant and Burlington
Northern; and (6) allowing plaintiff's economist to testify that
tier II railroad retirement taxes paid by defendant were a fringe
benefit of plaintiff's employment. We reverse and remand for a new
hearing on plaintiff's future loss of earnings.
The resolution of this appeal requires only a brief summary of
pertinent trial testimony. As we discuss each issue, we will set
forth other facts relevant thereto.
Trial testimony established that plaintiff is a
trainman/conductor for defendant. On June 1, 1988, plaintiff was
working in defendant's Corwith railway yard when he was struck by
a pickup truck operated by William Slama, an agent of defendant.
Plaintiff presented evidence that he injured his right knee in
the collision with the pickup truck and, as a result, he will
eventually require a total knee replacement. Plaintiff also
presented evidence that, following the total knee replacement, he
will be unable to continue working as a train conductor.
On appeal, defendant argues the trial court erred by refusing
to allow it to present evidence that plaintiff has the option of
transferring to engineer service. As an engineer, plaintiff would
earn at least as much money as he makes as a conductor and undergo
less physical stress on his knee, thereby extending his work life.
Defendant contends that if the trial court had admitted said
evidence, the jury would have awarded plaintiff less than $150,000
for future loss of earnings.
We find no error. In an offer of proof, plaintiff testified
he has 25 years seniority in his present position, as a result of
which he can pick and choose the jobs he desires to work. A
transfer to engineer service would be like starting over, resulting
in an immediate 10% loss of his salary for six months and the loss
of his elected position with the United Transportation Union, which
pays about $5,500. Further, a transfer could result in relocation,
the loss of his wife's job, and additional expenses. Under these
circumstances, plaintiff is not required to leave his job as
conductor and take the engineering position. See Restatement
(Second) of Torts 918, Comment j, at 506 (1979) (plaintiff is not
obligated to surrender a right of substantial value in order to
minimize loss). Accordingly, the trial court did not err by
refusing to allow defendant to present evidence regarding
plaintiff's option of transferring from conductor to engineer.
Defendant contends the trial court should have allowed it to
present evidence regarding plaintiff's option of transferring to
engineer service in the future, after plaintiff has a total knee
replacement and can no longer work as a conductor. However, during
the offer of proof, the witnesses who would have testified at trial
about plaintiff's future option of transferring to engineer service
stated that it was difficult to predict how well plaintiff would
function as an engineer after knee surgery or how much money he
could expect to earn as engineer. The trial court correctly
excluded such evidence as too speculative. See Poulakis v. Taylor
Rental Center, Inc., 209 Ill. App. 3d 378, 383 (1991) (opinion
testimony based on guess, surmise or conjecture is inadmissible);
Jarke v. Jackson Products, Inc., 282 Ill. App. 3d 292, 299-300
(1996) (an expert's opinion cannot be based on mere conjecture or
guess).
Next, defendant argues the trial court erred by admitting a
written report memorializing a conversation between plaintiff and
a supervisor, J.C. Poe, in which plaintiff reported he was off work
because of fluid on his knees. Defendant contends the report was
irrelevant and hearsay.
We disagree. Poe testified the report was a business record
prepared as a routine practice of defendant shortly after his
conversation with plaintiff, and, thus, the report was admissible
under the business records exception to the hearsay rule. See
Birch v. Township of Drummer, 139 Ill. App. 3d 397, 406-07 (1985).
Moreover, the report was relevant because medical testimony
established that fluid on the knees occurs when the anterior
cruciate ligament tears, and, as defendant concedes, a "crucial and
hotly contested factual issue involved whether or not the June 1,
1988, accident caused a tear in plaintiff's anterior cruciate
ligament." Accordingly, the trial court did not abuse its
discretion by admitting Poe's report.
Next, defendant argues the trial court erred by allowing
plaintiff's medical expert to testify that the time frame for
plaintiff's knee replacement ranged from 3 to 12 years. Defendant
contends the expert's trial testimony conflicted with his pretrial
deposition testimony and, therefore, should have been stricken.
Defendant has included only a portion of the expert's deposition in
the record on appeal, even though the trial court apparently
reviewed the entire deposition prior to admitting said testimony.
Defendant, as the appellant, has the burden of providing a
sufficient record for review, and in the absence of such a record,
we presume the trial court's ruling was proper. Foutch v.
O'Bryant, 99 Ill. 2d 389, 391-92 (1984).
Defendant also contends the expert's trial testimony was not
based on a reasonable degree of medical certainty. We disagree.
The expert was asked to offer his opinions to a reasonable degree
of medical certainty, and he opined that defendant would need knee
replacement within 3 to 12 years, depending on how fast the knee
degenerates. We find no error.
Next, defendant argues the trial court erred by refusing to
allow defendant to introduce into evidence allegedly false
statements plaintiff made during a deposition. Defendant refers to
the following testimony given during a deposition on August 2,
1994:
"Q. Have you ever talked to anyone at Santa Fe about a
different job other than being conductor?
A. [Plaintiff:] No. Because with our agreement and my
seniority, there's no other job that I can really do.
Q. Meaning there's no other job you can do and get paid
the same amount, is that what you mean?
A. Well, yes.
Q. And not get paid the same amount.
A. That's for certain, but my seniority and our contract
won't allow me to go into a different craft.
Q. Without losing seniority, I take it?
A. More than that. They're not hiring.
Q. Santa Fe is not hiring for any position other than
conductor, is that what you are telling me?
A. As far as I know, there's been like clerks and stuff
we've been cutting. Every department that I know of, we have
been cutting everywhere. We have been downsizing for years.
There's probably some position, vice president or something
that they're hiring, but they haven't offered me that
position." (Emphasis added.)
Defendant argues that the emphasized testimony was false
because in fact plaintiff had the option of transferring to
engineering service. Defendant contends the trial court should
have admitted said testimony in order to show the jury that
plaintiff was willing to misstate the truth regarding his case
against defendant.
We disagree. Plaintiff was deposed a second time on May 5,
1995, prior to trial. During that deposition, plaintiff was
specifically asked about his right to transfer to engineering
service. Plaintiff described the labor agreements related to that
issue, and he agreed that he had a right to transfer to engineer.
The difference between the first and second depositions was
the specificity of the questions asked. After carefully reviewing
both depositions, we find no attempt by plaintiff to misstate the
truth. Accordingly, the trial court did not abuse its discretion
by excluding defendant's purported impeachment of plaintiff.
Next, defendant contends the trial court erred by denying its
motion to bar evidence about a proposed merger between defendant
and the Burlington Northern Railroad Company. Defendant contends
the trial court's ruling allowed plaintiff to elicit testimony that
the merger would reduce the number of management positions
available to him after knee surgery. Defendant contends it was
unfairly prejudiced thereby because the trial court refused to
allow it to present evidence that plaintiff could still transfer to
an engineering position. In effect, defendant is rearguing its
first issue on appeal, that the trial court erred when it
determined defendant could not elicit testimony regarding
plaintiff's possible transfer to engineer. As discussed above, we
find no error in that ruling, and we also find no abuse of
discretion in the trial court's decision to admit testimony about
the merger.
Next, defendant argues the trial court erred by allowing
plaintiff's economist to testify that the amount of defendant's
payment of tier II taxes pursuant to the Railroad Retirement Act
(45 U.S.C. 231 et seq. (1994)) was a fringe benefit that would be
lost when plaintiff could no longer work.
Rachel v. Consolidated R. Corp., 891 F. Supp. 428, 429-30
(N.D. Ohio 1995), is instructive, and we quote its discussion of
the issue.
"Pursuant to the Railroad Retirement Act
of 1974, 45 U.S.C. 231 et seq., the Railroad
Retirement Board administers disability and
retirement annuities for eligible railroad
workers, paid from a fund maintained by the
United States Treasury. The internal revenue
code requires employees and employers alike to
contribute tax payments to the annuity fund.
26 U.S.C. 3201, 3221. Both employees and
employers presently pay an amount equal to
7.65% of the employee's gross wage in 'Tier I'
taxes, which taxes sustain the Railroad
Retirement Board Disability and Retirement
Annuities that supplant social security
benefits. The employee pays an additional
4.9% of his total compensation as a 'Tier II'
tax toward the retirement fund's pension
component, and the employer adds an amount
equal to 16.1% of the employee's compensation
in Tier II taxes. ***
Defendant expects [plaintiff's expert
economist] to offer a projected loss of
earnings figure that includes as 'fringe
benefits' the Tier I and Tier II taxes that
Plaintiff and Defendant would have paid in the
future but for Plaintiff's disability.
Defendant argues that these sums must be
excluded ***.
Had Plaintiff continued in Defendant's
employ until his natural retirement, he would
have been eligible for a larger retirement
annuity. Defendant concedes Plaintiff's right
to seek damages that reflect the loss of that
bigger annuity. *** But Defendant insists, and
the Court must agree, that the total tax
contributions by the parties do not fairly
approximate the value of Plaintiff's loss.
Defendant aptly quotes the Missouri court in
Adams v. Burlington Northern R.R. Co., 865 S.W.2d 748, 750 (Mo. Ct. App. 1993): 'Any link
between the taxes paid and the benefits is too
tenuous to provide a true measure of
plaintiff's loss.' Congress determines the
size of the tax contributions and the size of
Plaintiff's annuity, and it has no obligation
to balance the two. *** As for the Tier II
taxes, the Railroad Retirement Act provides
the proper method for determining Plaintiff's
expected benefits at 3(b), 45 U.S.C.
231b(b). Adams, id. at 751. Accordingly,
the Court will allow Plaintiff to present
evidence of the value of his lost pension
benefits calculated in a manner consistent
with 45 U.S.C. 231b(b). It will not,
however, permit [plaintiff's expert economist]
to offer his opinion that the Tier I and Tier
II taxes that would have been paid by the
parties save Plaintiff's injury represent lost
fringe benefits for which Plaintiff should be
compensated in kind."
Thus, Rachel held that the formula set out in Adams and 45
U.S.C. 231b(b) is the correct method for computing retirement
benefits. That formula requires a calculation of the amount of
benefits plaintiff would have received had he continued working to
retirement age and the amount plaintiff will actually receive.
Adams, 865 S.W.2d at 751. The difference between the two amounts,
discounted to present value, represents plaintiff's lost retirement
benefits. Adams, 865 S.W.2d at 751.
Plaintiff's economist here did not use the aforementioned
formula and instead improperly calculated plaintiff's benefits as
the amount of tier II taxes paid by defendant. Accordingly,
defendant contends we must reverse and remand for a new trial on
all damages.
We disagree. The jury returned an itemized verdict,
allocating $16,000 for past disability, $100,000 for future
disability, $26,500 for past pain and suffering, $100,000 for
future pain and suffering, $7,500 for past loss of earnings,
$150,000 for future loss of earnings, and $50,000 for future
medical expenses. The retirement benefits at issue here are only
a part of plaintiff's future loss of earnings; they are not a part
of the other components of the damages award. Accordingly, we
reverse only the portion of the jury's verdict awarding plaintiff
$150,000 in future loss of earnings. We remand for a new hearing
on plaintiff's future loss of earnings, in which plaintiff's
economist will use the above-mentioned formula to compute
plaintiff's retirement benefits.
Treadaway v. Societe Anonyme Louis-Dreyfus, 894 F.2d 161 (5th
Cir. 1990), Monaghan v. Uiterwyk Lines, Ltd., 607 F. Supp. 1020
(E.D. Pa. 1985), and Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 76 L. Ed. 2d 768, 103 S. Ct. 2541 (1983), cited by
plaintiff, are inapposite, as none of those cases involved the
computation of tier II benefits.
For the foregoing reasons, we reverse and remand for a new
hearing on plaintiff's future loss of earnings.
BUCKLEY, J., and GALLAGHER, J., concur.
August 25, 1997
No. 1-95-3138
JOHN M. EDWARDS,
Plaintiff-Appellee,
v.
THE ATCHISON, TOPEKA and SANTA FE
RAILWAY COMPANY, a company,
Defendant-Appellant. )
)
)
)
)
)
)
)
) Appeal from the
Circuit Court of
Cook County
Honorable
Cyril J. Watson,
Judge Presiding.
JUSTICE O'BRIEN delivered the opinion of the court:
Plaintiff, John Edwards, brought an action pursuant to the
Federal Employers' Liability Act (45 U.S.C. 51 et seq. (1994))
against his employer, the Atchison and Santa Fe railway company
(defendant), to recover damages for personal injuries he sustained
during the course of his employment. A jury returned a verdict in
favor of plaintiff and assessed damages in the total amount of
$450,000, including $150,000 for future loss of earnings. The jury
found plaintiff was 5% contributorily negligent and reduced the
award to $427,500. The court amended the judgment to reflect a
set-off and an award of costs in favor of plaintiff, and entered a
final judgment of $426,918.72.
Defendant appeals, contending the trial court erred by: (1)
barring defendant from introducing evidence regarding plaintiff's
alternate employment options; (2) admitting hearsay evidence; (3)
allowing plaintiff's medical expert to give opinions not based on
a reasonable degree of medical certainty; (4) refusing to allow
defendant to introduce into evidence allegedly false statements
plaintiff made while under oath in a deposition; (5) allowing
evidence of a proposed merger between defendant and Burlington
Northern; and (6) allowing plaintiff's economist to testify that
tier II railroad retirement taxes paid by defendant were a fringe
benefit of plaintiff's employment. We reverse and remand for a new
hearing on plaintiff's future loss of earnings.
The resolution of this appeal requires only a brief summary of
pertinent trial testimony. As we discuss each issue, we will set
forth other facts relevant thereto.
Trial testimony established that plaintiff is a
trainman/conductor for defendant. On June 1, 1988, plaintiff was
working in defendant's Corwith railway yard when he was struck by
a pickup truck operated by William Slama, an agent of defendant.
Plaintiff presented evidence that he injured his right knee in
the collision with the pickup truck and, as a result, he will
eventually require a total knee replacement. Plaintiff also
presented evidence that, following the total knee replacement, he
will be unable to continue working as a train conductor.
On appeal, defendant argues the trial court erred by refusing
to allow it to present evidence that plaintiff has the option of
transferring to engineer service. As an engineer, plaintiff would
earn at least as much money as he makes as a conductor and undergo
less physical stress on his knee, thereby extending his work life.
Defendant contends that if the trial court had admitted said
evidence, the jury would have awarded plaintiff less than $150,000
for future loss of earnings.
We find no error. In an offer of proof, plaintiff testified
he has 25 years seniority in his present position, as a result of
which he can pick and choose the jobs he desires to work. A
transfer to engineer service would be like starting over, resulting
in an immediate 10% loss of his salary for six months and the loss
of his elected position with the United Transportation Union, which
pays about $5,500. Further, a transfer could result in relocation,
the loss of his wife's job, and additional expenses. Under these
circumstances, plaintiff is not required to leave his job as
conductor and take the engineering position. See Restatement
(Second) of Torts 918, Comment j, at 506 (1979) (plaintiff is not
obligated to surrender a right of substantial value in order to
minimize loss). Accordingly, the trial court did not err by
refusing to allow defendant to present evidence regarding
plaintiff's option of transferring from conductor to engineer.
Defendant contends the trial court should have allowed it to
present evidence regarding plaintiff's option of transferring to
engineer service in the future, after plaintiff has a total knee
replacement and can no longer work as a conductor. However, during
the offer of proof, the witnesses who would have testified at trial
about plaintiff's future option of transferring to engineer service
stated that it was difficult to predict how well plaintiff would
function as an engineer after knee surgery or how much money he
could expect to earn as engineer. The trial court correctly
excluded such evidence as too speculative. See Poulakis v. Taylor
Rental Center, Inc., 209 Ill. App. 3d 378, 383 (1991) (opinion
testimony based on guess, surmise or conjecture is inadmissible);
Jarke v. Jackson Products, Inc., 282 Ill. App. 3d 292, 299-300
(1996) (an expert's opinion cannot be based on mere conjecture or
guess).
Next, defendant argues the trial court erred by admitting a
written report memorializing a conversation between plaintiff and
a supervisor, J.C. Poe, in which plaintiff reported he was off work
because of fluid on his knees. Defendant contends the report was
irrelevant and hearsay.
We disagree. Poe testified the report was a business record
prepared as a routine practice of defendant shortly after his
conversation with plaintiff, and, thus, the report was admissible
under the business records exception to the hearsay rule. See
Birch v. Township of Drummer, 139 Ill. App. 3d 397, 406-07 (1985).
Moreover, the report was relevant because medical testimony
established that fluid on the knees occurs when the anterior
cruciate ligament tears, and, as defendant concedes, a "crucial and
hotly contested factual issue involved whether or not the June 1,
1988, accident caused a tear in plaintiff's anterior cruciate
ligament." Accordingly, the trial court did not abuse its
discretion by admitting Poe's report.
Next, defendant argues the trial court erred by allowing
plaintiff's medical expert to testify that the time frame for
plaintiff's knee replacement ranged from 3 to 12 years. Defendant
contends the expert's trial testimony conflicted with his pretrial
deposition testimony and, therefore, should have been stricken.
Defendant has included only a portion of the expert's deposition in
the record on appeal, even though the trial court apparently
reviewed the entire deposition prior to admitting said testimony.
Defendant, as the appellant, has the burden of providing a
sufficient record for review, and in the absence of such a record,
we presume the trial court's ruling was proper. Foutch v.
O'Bryant, 99 Ill. 2d 389, 391-92 (1984).
Defendant also contends the expert's trial testimony was not
based on a reasonable degree of medical certainty. We disagree.
The expert was asked to offer his opinions to a reasonable degree
of medical certainty, and he opined that defendant would need knee
replacement within 3 to 12 years, depending on how fast the knee
degenerates. We find no error.
Next, defendant argues the trial court erred by refusing to
allow defendant to introduce into evidence allegedly false
statements plaintiff made during a deposition. Defendant refers to
the following testimony given during a deposition on August 2,
1994:
"Q. Have you ever talked to anyone at Santa Fe about a
different job other than being conductor?
A. [Plaintiff:] No. Because with our agreement and my
seniority, there's no other job that I can really do.
Q. Meaning there's no other job you can do and get paid
the same amount, is that what you mean?
A. Well, yes.
Q. And not get paid the same amount.
A. That's for certain, but my seniority and our contract
won't allow me to go into a different craft.
Q. Without losing seniority, I take it?
A. More than that. They're not hiring.
Q. Santa Fe is not hiring for any position other than
conductor, is that what you are telling me?
A. As far as I know, there's been like clerks and stuff
we've been cutting. Every department that I know of, we have
been cutting everywhere. We have been downsizing for years.
There's probably some position, vice president or something
that they're hiring, but they haven't offered me that
position." (Emphasis added.)
Defendant argues that the emphasized testimony was false
because in fact plaintiff had the option of transferring to
engineering service. Defendant contends the trial court should
have admitted said testimony in order to show the jury that
plaintiff was willing to misstate the truth regarding his case
against defendant.
We disagree. Plaintiff was deposed a second time on May 5,
1995, prior to trial. During that deposition, plaintiff was
specifically asked about his right to transfer to engineering
service. Plaintiff described the labor agreements related to that
issue, and he agreed that he had a right to transfer to engineer.
The difference between the first and second depositions was
the specificity of the questions asked. After carefully reviewing
both depositions, we find no attempt by plaintiff to misstate the
truth. Accordingly, the trial court did not abuse its discretion
by excluding defendant's purported impeachment of plaintiff.
Next, defendant contends the trial court erred by denying its
motion to bar evidence about a proposed merger between defendant
and the Burlington Northern Railroad Company. Defendant contends
the trial court's ruling allowed plaintiff to elicit testimony that
the merger would reduce the number of management positions
available to him after knee surgery. Defendant contends it was
unfairly prejudiced thereby because the trial court refused to
allow it to present evidence that plaintiff could still transfer to
an engineering position. In effect, defendant is rearguing its
first issue on appeal, that the trial court erred when it
determined defendant could not elicit testimony regarding
plaintiff's possible transfer to engineer. As discussed above, we
find no error in that ruling, and we also find no abuse of
discretion in the trial court's decision to admit testimony about
the merger.
Next, defendant argues the trial court erred by allowing
plaintiff's economist to testify that the amount of defendant's
payment of tier II taxes pursuant to the Railroad Retirement Act
(45 U.S.C. 231 et seq. (1994)) was a fringe benefit that would be
lost when plaintiff could no longer work.
Rachel v. Consolidated R. Corp., 891 F. Supp. 428, 429-30
(N.D. Ohio 1995), is instructive, and we quote its discussion of
the issue.
"Pursuant to the Railroad Retirement Act
of 1974, 45 U.S.C. 231 et seq., the Railroad
Retirement Board administers disability and
retirement annuities for eligible railroad
workers, paid from a fund maintained by the
United States Treasury. The internal revenue
code requires employees and employers alike to
contribute tax payments to the annuity fund.
26 U.S.C. 3201, 3221. Both employees and
employers presently pay an amount equal to
7.65% of the employee's gross wage in 'Tier I'
taxes, which taxes sustain the Railroad
Retirement Board Disability and Retirement
Annuities that supplant social security
benefits. The employee pays an additional
4.9% of his total compensation as a 'Tier II'
tax toward the retirement fund's pension
component, and the employer adds an amount
equal to 16.1% of the employee's compensation
in Tier II taxes. ***
Defendant expects [plaintiff's expert
economist] to offer a projected loss of
earnings figure that includes as 'fringe
benefits' the Tier I and Tier II taxes that
Plaintiff and Defendant would have paid in the
future but for Plaintiff's disability.
Defendant argues that these sums must be
excluded ***.
Had Plaintiff continued in Defendant's
employ until his natural retirement, he would
have been eligible for a larger retirement
annuity. Defendant concedes Plaintiff's right
to seek damages that reflect the loss of that
bigger annuity. *** But Defendant insists, and
the Court must agree, that the total tax
contributions by the parties do not fairly
approximate the value of Plaintiff's loss.
Defendant aptly quotes the Missouri court in
Adams v. Burlington Northern R.R. Co., 865 S.W.2d 748, 750 (Mo. Ct. App. 1993): 'Any link
between the taxes paid and the benefits is too
tenuous to provide a true measure of
plaintiff's loss.' Congress determines the
size of the tax contributions and the size of
Plaintiff's annuity, and it has no obligation
to balance the two. *** As for the Tier II
taxes, the Railroad Retirement Act provides
the proper method for determining Plaintiff's
expected benefits at 3(b), 45 U.S.C.
231b(b). Adams, id. at 751. Accordingly,
the Court will allow Plaintiff to present
evidence of the value of his lost pension
benefits calculated in a manner consistent
with 45 U.S.C. 231b(b). It will not,
however, permit [plaintiff's expert economist]
to offer his opinion that the Tier I and Tier
II taxes that would have been paid by the
parties save Plaintiff's injury represent lost
fringe benefits for which Plaintiff should be
compensated in kind."
Thus, Rachel held that the formula set out in Adams and 45
U.S.C. 231b(b) is the correct method for computing retirement
benefits. That formula requires a calculation of the amount of
benefits plaintiff would have received had he continued working to
retirement age and the amount plaintiff will actually receive.
Adams, 865 S.W.2d at 751. The difference between the two amounts,
discounted to present value, represents plaintiff's lost retirement
benefits. Adams, 865 S.W.2d at 751.
Plaintiff's economist here did not use the aforementioned
formula and instead improperly calculated plaintiff's benefits as
the amount of tier II taxes paid by defendant. Accordingly,
defendant contends we must reverse and remand for a new trial on
all damages.
We disagree. The jury returned an itemized verdict,
allocating $16,000 for past disability, $100,000 for future
disability, $26,500 for past pain and suffering, $100,000 for
future pain and suffering, $7,500 for past loss of earnings,
$150,000 for future loss of earnings, and $50,000 for future
medical expenses. The retirement benefits at issue here are only
a part of plaintiff's future loss of earnings; they are not a part
of the other components of the damages award. Accordingly, we
reverse only the portion of the jury's verdict awarding plaintiff
$150,000 in future loss of earnings. We remand for a new hearing
on plaintiff's future loss of earnings, in which plaintiff's
economist will use the above-mentioned formula to compute
plaintiff's retirement benefits.
Treadaway v. Societe Anonyme Louis-Dreyfus, 894 F.2d 161 (5th
Cir. 1990), Monaghan v. Uiterwyk Lines, Ltd., 607 F. Supp. 1020
(E.D. Pa. 1985), and Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 76 L. Ed. 2d 768, 103 S. Ct. 2541 (1983), cited by
plaintiff, are inapposite, as none of those cases involved the
computation of tier II benefits.
For the foregoing reasons, we reverse and remand for a new
hearing on plaintiff's future loss of earnings.
BUCKLEY, J., and GALLAGHER, J., concur.
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