Haischer v. CSX
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In the Circu it Court for B altimore C ity Case No. 24-C-00-003270 IN THE COURT OF APPEALS OF MARYLAND No. 57 September Term, 2003 ______________________________________ FRANCIS L. HAISCHER v. CSX TRANSPORTATION, INC. ______________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. ______________________________________ Opinion by Wilner, J. ______________________________________ Filed: May 7, 2004 Petitioner, Franci s Haisc her, sue d his fo rmer em ployer, C SX T ranspo rtation, In c., under the Federal Boiler Inspection Act (BIA), 49 U.S.C. §§ 20701-03, for injuries he sustained while working as a locomotive engineer on Ma rch 1, 2000 . A jury in the Circuit Court fo r Baltimore City found liability on CSX s part and awarded $203,898 in dam ages, including $101,949 for lost wages. On CSX s appeal, the Court of Special Appeals affirmed the judgment as to liability but concluded that the Circuit Court had erred in precluding collateral source evidence o ffered by CSX , and it therefore remanded for a new trial limited to dam ages. CSX Transp., Inc. v. Haischer, 151 Md. A pp. 147, 824 A .2d 966 (2003). We granted cross-petitions for certiorari to consider whether the Court of Special Appea ls erred (1) in concluding that the evidence was sufficient to sustain liability under the BIA, and (2) in holding that the collateral source evidence offered by CSX was admissible. We agree with the intermediate appellate court with respect to the first issue but shall reverse as to the second. BACKGROUND The accident in question occurred around 11:30 p.m. on March 1, 2000. Haischer and Rudy Carroll, the conductor, had been working, without incident, as a two-man crew on a switching job. When he went on duty just before 4:00, Haischer looked over the locomotive but did not find anything to be in improper condition. Near the end of their shift, Haischer and Carroll were in the locomotive on a side track waiting for permission from the dispatcher to enter t he ma in track. Inside the cab is a unit known as a Head of Train Device (HTD), which appears to be about the shape and size of a stereo receiver and sits on top of a co nsole locate d immed iately to the left o f whe re the en gineer s its. Whe n in use , the device enables the engine er to monitor air pressure throughout the train. The back cover of the device, which is not immedia tely visible to the engineer when sitting in his seat, faces a small set of steps that lead to the nose are a of the cab . The back cover of th e HTD is attached to the unit by a piano hinge on the bottom and by two screws at the top. While waiting fo r clearance to move, H aischer left h is seat and went to a refrigerator in the nose of the e ngine to get som e wate r for him self and Mr. C arroll. Haischer said that he may have brushed against the cabinet as he left, as there was very little room in the cab at that point. The steps leading to the nose are steep 12 to 14 inches apart and the area in the nose is c onstricted. T hus, Haisc her said, w hen returnin g to the cab, he had to kind of get your shoulders out first and then sort of take off like a runner from the starting block. Prior to his return, the screws holding the HTD door closed had come loose, and the door was hanging down on its hinge. As Haischer returned to the cab, he d rove his sho ulder hard in to the hanging d oor, causing him to drop to his knees . Haischer s aid that it was both dark and noisy in the cab and that he did not see or hear the HTD door come open. The screws apparently were still in the ir holes, as Haischer testified that, after the accident, the door was re-closed and the screws tightened in order to keep the doo r shut. Haischer claimed that he had not previously noticed that the door had com e open. Mos t of that part of Haischer s -2- testimony wa s corrobora ted by Mr. C arroll. As soon as he returned to the yard, Haischer reported the incident to the yardmaster and then immediately filed an accident report in which he claimed that the accident resulted from defective equipment, in that the rear cover of the HTD was not secured properly. He kept an already-scheduled appointment with his doctor two days later to get a cortisone shot for pre-existing p ain in the shoulder, and then, on March 20, saw an orthopaedic surge on, Dr. Wardell, who had been suggested to him by a friend . Dr. Ward ell initially diagnosed his condition as an acute exacerbation of a pre-existing calcium deposit and resulting bursitis; he recommend ed, and ultimately performed, surg ery to correct that condition and determine if anything else was amiss. The surgery revealed a tear in the rotator cuff; the doctor removed the calcium deposit and re paired the tear. Dr. Wardell later opined that the rotator cuff tear was caused by the accident and that, because of the demands of the job, Haischer was permanently disabled from continuing to work as a locomotive engineer. Haischer made casual inquiries into other employment but declined vocational rehabilitation assistance belatedly offered by CSX and has not returned to work since the accident on March 1, 2000. In June, 2000, Haischer filed suit under both the Federal Employer s Liability Act (FELA), 45 U.S.C. §§ 51-60, and the BIA, alleging, among other things, that (1) the HTD device, and therefore the locomotive, was defective, (2) he had no knowledge of its defective condition, (3) he relied on information from others as to whether the locomotive was free from defective conditions or hazards, and (4) CSX should have known that the locomotive -3- was unsafe d ue to the de fective con dition of the HTD device door. Prior to the commencement of voir dire, Haischer withdrew his separate FELA claim and proceeded solely on the B IA coun t. Liability on that co unt was th e basis for th e favorab le judgme nt. DISCUSSION Liability Under BIA Section 20701 of 49 U.S.C. provides, in relevant part, that a railroad carrier may use or allow to be used a locomotive only when the locomotive and its parts and appurtenances are in proper condition and safe to operate withou t unnec essary da nger of person al injury. That statute, f irst enacted in 1911, w as codified as § 23 of Title 45 of the U.S. Code, dealing with railroads, and was part of a number of boiler inspection and safety appliance laws to which the Federal Emp loyer s Liability Act applied. In 1994, the statute was code-revised and moved to title 49 as p art of th e Fede ral code revision effort. See P.L. 103-272, 108 Stat. 745, and Ho use Rep ort (Judiciary Co mmittee) N o. 103-18 0, 7/15/93, accompanying H.R. 1758, 4 U.S.C .C.A.N. 818, 916 -920 (103rd C ong., 2d. Sess. 1994). Standing alone, § 20701 does not purport to confer any rights on persons injured when coming into contact with a locomotive or parts thereof that are not in proper condition and safe to operate. As the Supreme Court made clear in Urie v. Thompson, 337 U.S. 163, 188, 69 S. Ct. 1018, 1034, 93 L. Ed. 1282, 1302 (1949) w ith respect to th e predece ssor statute (title 45, § 23), however, it has been held consistently that the Boiler Inspection Act -4- supplem ents the Federal Emp loyers Liability Act by imposing on interstate railroads an absolute and continuing duty to provide safe equipme nt. That co nclusion, it stated, stems, not from any express statutory language, but by implication from §§ 3-4 of the Federal Employers Liability Act, 45 U.S.C. §§ 53-54 . . . which bar p lead ings of, respe ctive ly, contributory negligence and assumption of risk in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee. The Court exp lained that, although it is § 1 of FELA (45 U.S.C. § 51) that creates the basis of an employee s suit for violation of the BIA and that sec tion refers to d efects due to the railroad s neg ligence , it was the C ongression al intent to treat a violation of the Saf ety Appliance Act as ne gligence what is sometimes called negligence per se. Id. at 189, 69 S. Ct. at 1034, 93 L. Ed. at 1303, (quoting from San Antonio & A.P.R. Co. v. Wagner, 241 U.S. 476, 484, 36 S. Ct. 626, 630, 60 L. Ed. 1110, 1117 (1916)). Thus, the Court concluded that the BIA is substantively an amendment to the FELA and dispense[s], for the purposes of employees s uits, with the n ecessity of prov ing that violatio ns of the sa fety statutes constitute negligence; and making proof of such violations is effective to show negligence as a matter of law. Urie v. Thompson, supra, at 189, 69 S. Ct. at 1034, 93 L. Ed. at 1303. See also Lilly v. Grand Trunk W. R.R. Co., 317 U.S . 481, 485, 6 3 S. Ct. 347, 351, 87 L. Ed. 411, 415 (194 3): ( Neg ligence is no t the basis for liability under the [Boiler Inspection] Act. ). -5- CSX contends that Haischer failed to present any evidence that the HTD device was not in proper condition or was not safe to operate without unnecessary danger of personal injury that it was defective in any way. The railroad suggests three possible reasons for the door coming loose that Haischer brushed against it, causing it to fall open; that it came open due to continuous vibration from operation of the engine; or that maintenance personnel failed to tighten the screws adequately and it maintains that none of those reasons creates liability under BIA. The first tw o possible re asons, it claim s, do not sho w any defe ct in the device, which is a necessary element for liability; the third, it argues, constitutes not a defect in the device but negligence on the part of other employees, which may be the basis for liability under FELA but not under BIA. In that reg ard, it uses the s word of strict liability as a shield: if negligence is not the basis for liability under BIA, the railroad can not be liable for an injury caused by its negligence. The railroad s position is supported neither by case law interpreting BIA nor by logic. The simple answer is that it really does not matter which of the th ree suggested reasons actually caused the door to come loose. As was shown from the incident itself, it was at least a jury question of whether, when the door came loose and was left hanging, the device, and, consequ ently, the locomotive, ceased to be in proper condition and, in fact, became unsafe to operate. It was the railroad s duty under § 20701 to make certain that the screws were sufficiently tightened so that they would not come loose, whether by someone brushing against the door or because of normal vibration from the engine. Even though traditional -6- negligence need not be shown under BIA, both of those prospects were entirely foreseeable, and, to satisfy its statutory duty to provide safe equipment in proper condition, the railroad was obliged to assure, through appropriate maintenance, that the screw s would re main securely in place. The failure to do so constitutes the kind of negligence per se that the Urie Court held w as impo sed by B IA. Compare Zachritz v. St. Louis-San Francisco Ry. Co., 81 S.W.2d 6 08 (Mo . 1935) (plain tiff injured when he fell while attempting to boa rd locomotive by grabbing handrail; no defect sho wn in ha ndrail); Ford v. New Y ork, N.H . & H.R. Co., 54 F.2d 342 (2nd Cir. 1931) (same); Harlan v. Wabash Ry. Co., 73 S.W.2d 749 (Mo. 1934) (plaintiff injured w hen trapdoor w as negligently left open; no defec t in trapdoor). Lilly v. Gra nd Tru nk W. R .R. Co., supra, 317 U.S. 481, 63 S. Ct. 347, 87 L. Ed. 411, illustrates the point. A brakeman, standing on top of a locomotive tender, was attempting to pull a water spout over the tender when he slipped on ice that had formed on the top of the tender. He claimed that the ice had formed because of a small leak at the collar of a m anhole on the tender, from which water flow ed onto the surface of the tender. The jury, in a special verdict, found that there was no such leak, which raised the question of whether the general verdict f or the b rakem an cou ld stand . The Supreme Court held that, under BIA, the verdict could stand that BIA imposed an absolute an d continuing duty to maintain the locomotive and its appurtenances in safe condition, without unnecessary peril to life or limb and that [t]he use of a tender, upon whose top an employee must go in the course of his duties, which is covered with ice seems -7- to us to involve unnecessary peril to life or limb enough so as to permit a jury to find that the Boiler Inspection Act has been violated. 317 U.S. at 486, 63 S. Ct. at 351, 87 L. Ed. at 415. That conclusion was founded on the Court s rejection of the no tion that the BIA cov ers only defects in construction or mechanical operation and its view that [c]onditions other than mechanical imperfections can plainly render equipment unsafe to operate without unnecessary peril to life or limb. Id, at 487-88, 63 S. Ct. at 352, 87 L. E d. at 416 . See also Topping v. CSX Transp., Inc., 1 F.3d 260 (4th Cir. 1993) (relying on Lilly in upholding liability under BIA for injuries suffered when locomotive engineer slipped on metal object, holding that it was a jury question whether presence of loose object in cab of engine rendered locom otive un safe to o perate) . Collateral Source Evidence The railroad s position, throughout trial, was that the incident was, at worst, a minor one which could not have produced the disabling injuries Haischer was claiming and that he was essentially a malingerer. Because of his claim ed disability, Haischer was receiving at least $2,320/month from the Railroad Retirement Board, and CSX wanted that fact communicated to the jur y. Prior to trial, Haischer moved in limine to preclude CSX from offering evidence of his receipt of those disability benefits, citing Eichel v. New Y ork Cen t. R.R. Co., 375 U.S. 253, 84 S. Ct. 316, 11 L. Ed.2d 307 (1963) for the proposition that such collateral source evidence was inadmissible. CSX responded that there were exception s to -8- that rule, that the cou rt had so me disc retion to admit su ch evid ence, at least where the plaintiff claimed to be impoverished by reason of his inability to work, and that CSX would alert the court in a dvance if it intended to o ffer that kin d of evide nce. Both sides seem ed to agree that it was not necessary to decide the issue at that time, so long as CSX did not produce the evidence prior to a court ruling. The issue arose again at the end of Haisc her s case, w hen, based on certain sta tements made by plaintiff s co unsel in his opening statement and evidence produced by Haischer that CSX regarded as suggesting either financial strain or possible maling ering on Haische r s part, CSX sought permission from the court to call Haischer, as a defense witness, to testify regarding the retiremen t benefits he was rece iving. CSX argued tha t collateral source eviden ce wa s admis sible to s how m alingeri ng and to rebu t a claim of fina ncial ha rdship. CSX alluded first to the commen t in plaintiff s counsel s opening s tatement tha t this is [Haisch er s] only day or fe w days in co urt and so I w ould ask you to remember that, and whatever the outcom e is, this is it for him. If his situation changes five years, ten years down the road, he s n ot coming back. Th at statement, CSX argued, was an indication of financial hardship. The railroad called attention next to three aspects of Haische r s testimony. Ea rly in direct examination, Haisch er recounted some of the fringe benef its he had received as part of his employment compensation package, including health insurance. Later, he was asked whether he was continuing to receive those fringe bene fits, and he responded that the insurance would continue for another two years for himse lf and one yea r for his 15-yea r-old -9- son who lived with him, and that thereafter he would have to pick up that insurance himself. He esti mated the cos t at abou t $6,000 /year. The second segment of Haischer s testimony noted by CSX came when he was asked how long he had planned to continue working for the railroad, and he responded: Well, depending on how the economy went, and m y 401K , I was putting the maximum into it, but the way things were stacking up, it looked like I was going to have to go until I was 65. Figuring my son would go to college, I would have to do that and I wanted some money set aside for m y own retirem ent. So I w as pretty m uch fig uring o n 65. CSX then alluded to testimony that Haischer had given some consideration to returning to school and quoted him as saying how could I go back to school to b etter myself in that fashion and pay for th e tuition and pay for the books and all the accouterments that I would need to go back to school when there s no money coming in? Upon our review of the recor d, we are unable to find any su ch statem ent in Haische r s te stimony. CSX treated those statements not only as an indication of financial distress and malingering but also as misleading, as suggesting that Haischer had no incom e. Relying on Eichel, the trial court denied the request. It did not interpret counsel s opening remark as a suggestion that a verdict in this case would be Haischer s only source of income and did not regard the testimony noted by CSX as a sufficiently strong indication of either financial distress or malingering to overcome the prejudice that would accrue from admitting the collateral source evidence. On appeal, CSX expanded the basis of its argument in favor of allowing the collateral -10- source evidence . It complaine d not only about counsel s opening statement and Haischer s testimony regarding his e ventual ne ed to replac e the health in surance b ut also abou t a statement made in closing argument (to which no objection was m ade), certain snippets of testimony by two experts called by Haischer, and Haischer s testimony that he was no longer able to do certain maintenance around h is house, that h e had to pay someone to do it for him, and that, because of his inability to do the maintenance work, he had considered selling the house . The statement in closing argument, similar to that made in the opening statement, was to the effect th at Haische r could no t come ba ck into court later if his situation worsened that [t]his is it for him today. Citing Weinell v. McKeesport Connecting R.R. Co., 411 F.2d 510 (3rd Cir. 1969) and Kodack v. Long Island R.R. Co., 342 F.2d 244 (2n d Cir. 1965), the railroad argued tha t those statem ents were improper . The app ellate court treated that complaint as going to the propriety of the statements themselves, not as a basis for allowing collateral source ev idence an d, especially in the absence o f any objection to the argumen t, conclude d that those s tatements d id not, of the mselves, w arrant revers al. The Court of Special A ppeals fou nd merit in the overa ll collateral sou rce argum ent, however. Focusing on (1) Ha ischer s testim ony that, in his disabled condition, he would be unable to earn a wage comparable to that he earned as a railroad engineer, that it would cost him $6,000 to replace the railroad s health insurance, that he had intended to work until 65 in order to be able to send his son to college and to accumulate additional saving s for his -11- retirement, and that he was unable to maintain his home without employing others to provide routine maintenance services, (2) a statement from Haischer s vocational rehabilitation expert, Herman Bates, that Haisch er had discu ssed with h im the po ssibility of selling his home because he cou ldn t take care of the main tenance, and (3) a statement from Haische r s expert econom ist, Raymond Strangways, regarding a projected decrease in Haische r s future earnings and loss of fringe benefits, the court concluded Haischer had opened the door for the introduction of evidence regarding the annuity payments Haischer is receiving. On the basis of that testimony, the appellate court found Eichel and the Fourth Circuit Court of App eals decision in Stillman v. Norfolk & W. Ry. Co., 811 F.2d 834 (4th Cir.1987) distinguishable, because in neither of those cases did the employer s attempt to offer evidence of Railroad Retirement benefits follow from the plaintiff s evidence of inferior or damaged financial security. CSX Transp., Inc., supra, 151 M d. App . at 165, 824 A.2d at 976. Relying on its earlier decision in Kelch v. Mass Transit Admin., 42 Md. App. 291, 400 A.2d 440 (1979), the court also concluded that there was sufficient evidence of malingering to open the door to the introd uction of evidence o f Haischer s Railroad Retirem ent ann uity. CSX Transp., Inc., supra. at 166, 824 A.2d at 977. Upon those conclusions, the court vacated the money judgment and remanded for a new trial, limited to the issue of damages. The collateral sou rce rule perm its an injured person to recover the full amount of his or her provable damages, regardless of the amount of compensation which the person has received for his injuries from sources unrelated to the tortfeasor. Motor Vehicle Admin. v. -12- Seidel, 326 Md. 237, 253, 604 A.2d 473, 481 (1992). The doctrine is widely accepted (see Restatement 2d of Torts, § 920A(2) (1977) and c ommen t b. thereto) and rests on pub lic policy considerations principally that the wrongdoer should not receive a windfall because the plaintiff received a benefit from an independent source, but also that, to the extent the collateral benefit arises from insurance maintained by the plaintiff, the rule encourages the maintenance of insurance. See Motor Vehicle Admin. v. Seidel, supra, 326 Md. at 254, 604 A.2d at 481-82, quoting from Restatement 2d, § 920A, comment b; also Green v. Denver & Rio Grande W. R.R. Co., 59 F.3d 1029, 10 32 (10th Cir. 1995). The basic law regarding the admissibility, in an FELA or BIA case, of evidence that the plaintiff is receiving Railroad Retirement benefits was set by the Supreme Court in Eichel v. New York Cent. R.R. Co., supra, 375 U.S . 253, 84 S. Ct. 316, 11 L. Ed.2d 307. The plaintiff sued his railroad employer und er FELA, claim ing that, as a result of the employer s negligen ce, h e suf fere d a permanen tly disablin g injury. The railroad offered evidence that the plaintiff was receiving Railroad Retirement benefits to impeach his testimony as to both his reason fo r not returning to work a nd the perm anence o f his injuries. T he trial court excluded the evidence, but the Second Circuit Court of Appeals reversed and, as did the Court of Special Appeals in this case, remanded for a new trial as to injury and damages. In a per curiam opinion, the Suprem e Court rev ersed the Second Circuit decision. The railroad did not dispute that the evidence could not be considered in mitigation of damages, but asserted that it was admissible as bearing on the extent and duration of the -13- claimed disability; i.e., to show malingering on the plaintiff s part. The Court noted that Railroad Retirement benefits are the equivalent of Social Security benefits for common carrier employees, that, because they are not attributable to con tributions by the employer, they cannot be used to mitigate damages. It then concluded that the likelihood of the jury misusing evidence of those b enefits for that impermissible purpose clearly outweighed any probative value of the evidence to show malingering. It posited, in that regard, that [i]nsofar 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. Eichel, 375 U .S. at 255 , 84 S. C t. at 317, 1 1 L. Ed.2d at 309. The Court added that the substantial probative value of th e evidenc e canno t reasonably be said to be outw eighed by the risk that it will create substantial danger of undue prejudice through being considered by the jury fo r the inco mpete nt purp ose of a set-of f again st lost ear nings. Id. Two aspects of the Eichel decision are important. First, though using a balancing approach, the Court did not view the ad missibility of this kind of evidence as discretion ary on the part of the trial court, as Justice Harlan did in a concurring and dissenting opinion and as would b e the case if th e issue were controlled by Fed. R. Evid. 403 or its common law anteceden t, but ruled as a matter of substantive law that the danger of misuse outweighed any probative value of the evidence, at least as to malingering. Most courts seem to have viewed the ruling in Eichel that way and have not a pplied, or ev en purpo rted to apply, a discretionary -14- balancing approa ch. See Reed v. Philadelp hia, Bethlehem & New England R.R. Co., 939 F.2d 128 (3rd Cir. 1991); Stillman v. Norfolk & W. Ry. Co., supra, 811 F.2d 834; Page v. S t. Louis Southwestern Ry. Co., 349 F.2d 820 (5th Cir. 1965); Wilcox v. Clinchfield R.R. Co., 747 F.2d 105 9 (6th Cir. 19 84); Schroeder v. Pennsylvania R.R. Co., 397 F.2d 452 (7th C ir. 1968); Sheehy v. S. Pac. Transp. Co., 631 F.2d 649 (9th C ir. 1980); Green v. Denver & Rio Grande W. R.R. Co., supra, 59 F.3d 1 029; Finley v. Nat l R.R. Passenger Corp., 1 F.Supp.2d 440 (E.D.Pa.1998); Lucht v . C & O Ry. Co., 489 F.Supp. 189 (W.D.Mich .1980); Hileman v. Pittsburgh & Lake Erie R.R. Co., 685 A.2 d 994 (Pa . 1996); Melton v. Illinois Cen t. Gulf R.R. Co., 763 S.W.2d 321 (Mo. App. 1988). Compare McGrath v. Consol. Rail Corp., 136 F.3d 838 (1st C ir. 1998) (ho lding that Eichel did not establish per se rule of inad missibility and tha t issue is to be dete rmined by applying Fed. R . Evid. 4 03). Second, although we have not previously addressed the issue precisely, the Eichel view that collateral so urce evide nce is substantive ly inadmissible is consistent with decisions of this Court regard ing suc h evide nce. See Motor Vehicle Admin. v. Seidel, supra, 326 Md. at 253, 604 A.2d at 481. ( Since 1899, the collateral source rule has been app lied in this State to permit an injured pers on to recover in tort the full amount of his provable damages regardless of the amount of compensation which the person has received for his injuries from sources unrelated to the tortfeaso r. ). Because we have adopted the collateral source rule as part of our own substantive law, whether we view the Supreme Court s ruling in Eichel as a matter of substantive Federal law -15- that we are obliged to apply under the Supremacy Clauses in both the Federal and Maryland Constitutions or, as the McG rath court did, as a matter of Federal evide nce law that we a re not obliged to follow is of little consequence. The principle underlying the Eichel ruling is entirely consistent with that underlying our adoption of the collateral source rule, and so we hold, as a matter of State law and subject to the discussion below, that evidence of a plaintiff s receipt of R ailroad Re tirement ben efits is ordinarily ina dmissible to s how po ssible malingering on the part of the plaintiff. As the Eichel Court noted, there is, on the one hand, too much danger that the jury might use such evidence for the impermissible purpose of mitigating damages, and, on the other, alternative ways of showing malingering that do not carry that danger. To the extent that the Court of Special Appeals found the collateral source evidence admissible to show malingering on Haischer s part, it erred. Notwithstanding the language used in Eichel, most courts faced with the issue have concluded that there are certain limited exceptions to the inadmissibility of collateral source evidence in FELA and BIA cases. The one at issue here is that, if the plaintiff claims, in argument or through the introduc tion of evid ence, that he /she is in financial dis tress due to the injury arising from the railroad s negligence or violation of BIA and has no other sufficient source of income, evidence that the plaintiff is receiving Railroad Retirement benefits is admiss ible to re but that c laim. See Santa Maria v. Metro-N. Commuter R.R., 81 F.3d 265, 273 (2nd C ir. 1996); Gladden v. P. Henderson & Co., 385 F.2d 480 (3rd Cir. 1967, cert. denied, 390 U.S. 1013, 88 S. Ct. 1262, 20 L. Ed.2d 162 (1968)); Moses v. Union Pac. -16- R.R., 64 F.3 d 413, 4 16 (8th Cir. 199 5), rehearing denied, 1995 U.S. App. LEXIS 27909 (1995); Moo re v. M issouri P ac. R.R . Co. 825 S.W.2d 839, 842-43 (M o. 1992) (en banc). That evidence, the courts have held, may be used for the narrow purpose of testing the credibility of plaintiff s assertion regarding financ ial distres s. Leake v. Burlington N. R.R. Co., 892 S.W.2d 359, 363 (Mo. App. 1995); also Lange v. Missouri Pac. R.R. Co., 703 F.2d 322, 32 4 (8th C ir. 1983 ). We agree that use of such evidence for that limited purpose is proper. The question then becomes whether Haischer, through the argument and evidence noted, opened the door to the admission of that evid ence w hether he, in fact, asserted a level of poverty that was misleading. The Court of Special A ppeals found telling the testimony by Haischer and two of his experts that, due to his injury, Haischer would b e unable to earn a wage comparable to that earned as a railroad engineer, that he would, within a year or two, incu r a cost of $ 6,000 to replace the health insurance supplied by CSX, that he had planned to work until 65 in order to be able to afford to s end his son to college, an d that he w ould be un able to ma intain his home without employing others to do the kind of maintenance and repairs that he used to do. CSX, as noted, complains as well about Haischer s opening statement. We do not believe that any of that testimony, or the opening statement, together or separately, justified the admission of the collateral source evidence. The rationale for the exception is that, without it, the p laintiff may be able to pain t a -17- truly misleading picture for the jury of the extent of his/her loss and thus obtain a reco very in excess of wh at is wa rranted . See Gladden v. P. Henderson Co., supra, 385 F.2d 480, 48384. That rationale necessarily governs the scope of the exception. We reject CSX s argumen t, now relegated to a f ootnote in its brief, that counsel s remark in opening statement that Haischer s day in court was it fo r him and that he cou ld not return f or more if h is situation changed in the future , served to put Haischer s financial condition at issue. Apart from the lack of any objection , that remark w as not only cor rect but in no way implied that a recovery in this case would b e Haisher s only source of in come. Reading the remark in its entir ety, all counsel said was that this was Haischer s one opportun ity for a recove ry in this case. He in no way implied that Haischer had no other source of income or that he wo uld be destitute without a proper verdict. Compare Weinell v. McKeesport Connecting R.R. Co., supra, 411 F.2d at 512 (holding improper a statement by counsel that FELA provided the only method by which an injured railroa d worke r may be pa id for an on -the-job injury while he was at work for the R ailroad ). CSX s reliance on that case is misplaced: ap art from the more egregious nature of the remark, the court reversed the plaintiff s judgment on other grounds and did not hold that collateral source evidence was admissible because of that statement. The sam e holds true for the oth er two cases cited by CSX Kodack v. Long Island R.R. Co., supra, 342 F.2d at 247 (statement that FELA plaintiff had no compensation rights improper but harmle ss, no issue being raised about admission of collateral source evidence) and Stillman v. Norfolk & W. Ry. Co., supra, 811 F.2d 834 (error to inf orm jury -18- that FELA w as plaintiff s only possible remedy ). CSX also misreads the nature of the testimony underlying its argument. None of the testimony referred to suggested that Haischer was impecunious or had no other source of income. It apparently was a fact as it was not disputed that Haischer was facing the loss of health insurance that he had received as a fringe benefit and that it would cost $6,00 0 to replace that insuranc e. Haische r did not say, or im ply, that he could not afford to replace the insurance, but only that he would have to do so. In testifying regarding his previous intention of continuing to work u ntil he was 6 5, in order to put addition al money asid e in his 401k plan and pay for his son s college ed ucation, H aischer did n ot say that, in his present circumstances, he would n ot be able to afford to s end his son to college. E vidence a s to his expected work-life is not only releva nt, but necessary, to establish the amount of his wage loss. If that kind of eviden ce suffice s to trigger collateral source evidence, there would be nothing left of th e collate ral sourc e rule. See Leake v . Burlington N. R.R. Co., supra, 892 S.W.2d 359, 363 (court erred in a dmitting collateral source evidenc e based on plaintiff s testimo ny that he would have h ad to w ork 14 more yea rs to retire ). The testimony regarding m aintenance and repa irs at his home dealt with Haischer s physical inability to do that kind of work because it prompted pain, which required him to employ people for that purpose and led him to consider selling the house . Neither he nor his experts suggested that he could not afford to have the maintenance done. Indeed, he stated that he did employ persons to do that work, indicating that he could afford to do so. -19- Most of the cases in which collateral source evidence was allowed to rebut indications of impecuniousness involved far more specific and direct evidence of impoverishment and are therefo re disting uishab le. See, for example, Lange v. Missouri Pac. R.R. Co., supra, 703 F.2d at 324 (colla teral source e vidence a dmissible to test credibility of plaintiff s testimony that he had to return to work im mediately after surgery beca use he ha d no disab ility income); Gladden v. P. Henderson & Co., supra, 385 F.2d 480 (collate ral source ev idence ad missible to rebut testimony that plaintiff did not return to doctor because his bills got behind and that he returned to work to catch up o n his bills and supp ort his family); Moore v. Missouri Pac. R.R. Co., supra, 825 S.W.2d at 842-43 (collateral source evidence admissible to rebut testimony that plaintiff could not continue with physical therapy because he cou ld not afford it). Compare Illinois Cent. Gulf R.R. Co. v. Haynes, 592 So.2d 536, 541-42 (Ala.1991) (collateral source evidence not admissible to rebut testimon y that plaintiff could not afford to go to trade school). On this record, the trial court did not err in excluding the collateral source evidence offered by CSX. We shall therefore reverse the judgment of the Court of Special Appeals. JUDGMENT OF COURT OF SPECIAL APPEALS REVERSED; CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO AFFIRM JUDGMENT OF CIRCUIT COURT FOR BALTIMORE CITY; COSTS IN THIS COURT AND COURT OF SPECIAL APPEALS TO BE PAID BY RESPONDENT/CROSS-PETITIONER. -20-
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