Dalebout v. Union Pacific RR
Annotate this Casepublication in the Pacific Reporter.
IN THE UTAH COURT OF APPEALS
----ooOoo----
Mark S. Dalebout,
Plaintiff and Appellee,
v.
Union Pacific Railroad Company,
Defendant and Appellant.
OPINION
(For Official Publication)
Case No. 981163-CA
F I L E D
May 6, 1999
1999 UT App 151
-----
Second District, Ogden Department
The Honorable Roger S. Dutson
Attorneys:
Morris O. Haggerty and Larry A.
Gantenbein, Salt Lake City, for Appellant
Richard I. Ashton, Sandy, and John
J. Rossi, Aurora, Colorado, for Appellee
-----
Before Judges Greenwood, Billings, and Jackson.
JACKSON, Judge:
¶1
Union Pacific Railroad Company (Union
Pacific) challenges a jury verdict for Mark S. Dalebout. We reverse and
remand in part and affirm in part.
BACKGROUND
¶2
We recount the facts in a light
most advantageous to the jury's verdict, mentioning contrary evidence only
as it aids in understanding our resolution of this appeal. See Patey
v. Lainhart, 366 Utah Adv. Rep. 21, 21 (Utah 1999).
¶3
Dalebout brought this personal injury
action against Union Pacific under the Federal Employers' Liability Act
(FELA). See 45 U.S.C. §§ 51-60 (1983). He asserted that
he was injured by Union Pacific's negligence and requested damages for
past and future medical costs, past wage loss, future impairment of earning
capacity, and past and future pain and suffering.
¶4
Dalebout was twenty-six when he
started working for Union Pacific in 1975. He had graduated from high school
and completed about two-and-a-half years of college. His prior work history
included carpet sales, ski patrol, and ski lift operations. Over the years
with Union Pacific, Dalebout worked as a switchman, then brakeman, conductor,
and, finally, an engineer.
¶5
On February 1, 1993, while Dalebout
was working as an engineer running a locomotive, the defective seat in
which he sat dropped three or four inches as he tried to open a window.
He was jarred and felt sharp pain in his back. Dalebout reported the injury
to Union Pacific and took ten days off with pay before returning to work.
His doctor diagnosed him with back strain, treating him with physical therapy
and anti-inflammatories. Despite the treatment, Dalebout's back remained
painful.
¶6
Dalebout then visited another doctor,
Dr. Bryan. Based on a magnetic resonance image (MRI) and X-rays, Dr. Bryan
determined that Dalebout had degenerative disc disease with minimal bulging
of two spinal discs. The disc disease had pre-existed the injury, but apparently
had not been painful. The injury had then exacerbated the disease, precipitating
Dalebout's back pain. Dr. Bryan prescribed more anti-inflammatories. Meanwhile,
Dalebout continued the physical therapy exercises on his own and kept doing
them through the time of trial.
¶7
In further visits to Dr. Bryan,
Dalebout described chronic pain in both his back and legs. He also reported
that part of his right foot was numb. About three years after the first
MRI, Dr. Bryan ordered another one, which showed little change. Dr. Bryan
continued prescribing anti-inflammatories.
¶8
Via a videotaped deposition shown
at trial, Dr. Bryan testified that Dalebout's pain was twenty percent related
to his injury and eighty percent related to the pre-existing degenerative
disc disease. Dr. Bryan stated that the disc disease would worsen over
the years, but he could not predict whether Dalebout's pain would also
worsen. Regarding future treatment, Dr. Bryan testified that Dalebout would
always need anti-inflammatories and an occasional epidural steroid injection
to cope with his lingering backache. He further opined that a thirty-percent
chance exists that Dalebout may need back surgery. The doctor stated that
Dalebout would not be able to work as an engineer if he underwent the surgery.
Without the surgery, though, the doctor testified that there is no reason
why Dalebout can not continue to work as an engineer.
¶9
Dalebout testified at trial that
his back constantly hurts and his legs have become painful too. The pain
seems to be slowly worsening, and he has to be careful in his activities
to keep from further irritating his back. Indeed, Dalebout has had to greatly
curtail his personal and recreational pursuits, including skiing. Lifting,
twisting, standing or sitting for long periods, and even sneezing can aggravate
his condition. He takes daily pain medication, increasing the dosage over
time.
¶10
Before the injury, Dalebout had
no physical limitations. Now, he may not lift more than fifty pounds. Although
his job description requires him to be able to help lift eighty-three pounds,
Dalebout testified that his lifting restriction has not hampered his work.
In fact, Dalebout testified that his injury does not affect his ability
to do his job because he works with his hands. Except for the first ten
days, he has not even missed a day of work because of the injury. However,
with his back pain, he is not always physically comfortable at work and
must sometimes readjust his body position or stand up. Both Dalebout and
his close friend who also works for Union Pacific testified that Dalebout
worries about his livelihood. Still, since his injury, Dalebout has been
able to work all shifts available to him and his wages have increased.
He testified that he plans to work until he is sixty-five.
¶11
Although Union Pacific has not asked
Dalebout to be physically examined in recent years, Tim Holmes, a Union
Pacific representative, testified that the railroad may physically examine
any employee to determine if he is fit for duty. Holmes acknowledged that
federal laws require Union Pacific to accommodate disabled employees. Holmes
further testified that if Dalebout became unable to work Dalebout would
lose $78,000 per year.
¶12
Before trial, the trial court denied
Union Pacific's motion in limine asking the trial court to exclude Dr.
Bryan's testimony that Dalebout has a thirty-percent chance of needing
future back surgery. After Dalebout presented his witnesses at trial, Union
Pacific unsuccessfully moved for a directed verdict, arguing Dalebout had
introduced insufficient evidence to support his claims involving future
surgery and future impairment of earning capacity. Union Pacific later
objected to jury instructions letting the jury consider future surgery
and future impairment of earning capacity. The jury found Union Pacific
liable for negligence and returned a verdict for Dalebout, awarding $825
for past medical costs; $5,040 for future medical costs; nothing for past
wage loss; $275,000 for future impairment of earning capacity; $12,500
for past pain, suffering, and loss of enjoyment of life; and $200,000 for
future pain, suffering, and loss of enjoyment of life (future pain and
suffering).
¶13
Union Pacific moved for a judgment
notwithstanding the verdict (JNOV) under Utah Rule of Civil Procedure 50
or a new trial under Utah Rule of Civil Procedure 59, arguing that insufficient
evidence supported the jury's verdict involving the issues of future surgery
and future impairment of earning capacity. Alternatively, Union Pacific
argued that the trial court should order a remittitur of damages awarded
for future impairment of earning capacity. Union Pacific further contended
that the evidence that Dalebout has a thirty-percent chance of future surgery
likely tainted the jury's award of damages for future pain and suffering
and thus requested a new trial or remittitur on that basis too. The trial
court denied all Union Pacific's motions for JNOV, new trial, and remittitur.
¶14
On appeal, Union Pacific does not
challenge its liability for Dalebout's injury, instead attacking the damages
awards for both future impairment of earning capacity and pain and suffering.
Union Pacific's arguments flow from its contention that the trial court
should not have admitted into evidence Dr. Bryan's testimony that Dalebout
has a thirty-percent chance of future back surgery.
¶15
First, regarding future impairment
of earning capacity, Union Pacific insists that, without Dr. Bryan's testimony
on the thirty-percent chance, Dalebout presented insufficient evidence
to support his claim. Union Pacific thus asserts the trial court should
have granted its requests to direct a verdict or enter a JNOV for Union
Pacific on future impairment of earning capacity. On the other hand, Union
Pacific maintains that, even if other evidence supported an award here,
there is a reasonable likelihood that the amount would have been lower
absent Dr. Bryan's inadmissible testimony.
¶16
Second, regarding future pain and
suffering, Union Pacific similarly argues that the award would have been
different had Dr. Bryan's testimony on the thirty-percent chance been excised.
Union Pacific thus protests the trial court's refusal to order a remittitur
or new trial, without Dr. Bryan's inadmissible testimony, regarding damages
for future pain and suffering.(1)
ANALYSIS
I. Overview of FELA
¶17
Recognizing the hazards of railroading,
Congress passed FELA in 1908 "to shift part of the 'human overhead' of
doing business from employees to their employers." Belt v. Burlington
N.R.R. Co., No. A-96-305, 1997 Neb. App. LEXIS 110, at *15 (Neb. Ct.
App. 1997); see also 32B Am. Jur. 2d Federal Employers' Liability
and Compensation Acts § 2 (1996) ("[FELA] seeks to adjust the
cost of injury equitably between employee and employer; to stimulate carriers
to take measures for the prevention of injury to their employees; to provide
a liberal rather than a static remedy for injured workers; to protect the
health of employees; and to promote public interests."). However, FELA
is not the same as worker's compensation--it does not cast railroad employers
in the position of insuring their workers' safety. See Belt, 1997
Neb. App. LEXIS 110, at *16. Instead, a railroad's liability is based on
negligence. See id. FELA exclusively controls a railroad employee's
claim against a railroad employer for an on-duty injury caused by the railroad's
negligence. See id.; accord Fashauer v. New Jersey Transit
Rail Operations, Inc., 57 F.3d 1269, 1274 (3d Cir. 1995).
¶18
Two fundamentals of FELA law shape
our treatment of this case. First, "FELA requires liberal construction
in order to protect railroad employees." 13 Personal Injury §
1.01 (Louis R. Frumer & Melvin I. Friedman eds., 1998); accord
32B Am. Jur. 2d, supra, § 3. Second, "FELA cases adjudicated
in state court are subject to the forum state's procedural rules, while
federal law governs the substantive issues." Handy v. Union Pac. R.R.
Co., 841 P.2d 1210, 1214 (Utah Ct. App. 1992); see also 13 Personal
Injury, supra, § 1.05[4] ("The FELA cause of action is
a creation of the United States Congress, and the rights created by the
Act are federal rights protected by federal law which does not vary according
to the differing conceptions of state or local courts."). Specific to this
case, "'questions concerning the measure of damages in a FELA action are
federal in character.'" Reusch v. Seaboard Sys. R.R., 566 So. 2d 489, 491 (Ala. 1990) (citation omitted); accord 11 Am. Jur. Trials
Federal
Employers' Liability Act Litigation § 2 (1966). Indeed, "[m]ore
consistent results have thus been achieved in FELA actions than is possible
in the case of other torts where each state is free to follow its own damages
rules." 11 Am. Jur. Trials, supra, § 34.
II. Admissibility of Testimony about Future Surgery
¶19
Union Pacific first contends the
trial court should not have admitted into evidence Dr. Bryan's testimony
that Dalebout has a thirty-percent chance of needing future back surgery.
It argues that the thirty-percent figure merely shows a possibility of
future surgery, whereas the law requires a showing that the future surgery
is probable.
¶20
Ordinarily, we greatly defer to
a trial court's ruling on the admissibility of evidence. SeeState v.
Pena, 869 P.2d 932, 938 (Utah 1994). However, when the court's "selection,
interpretation, and application" of a specific evidentiary standard is
at issue, we review its determination for correctness. See Stevenett
v. Wal-Mart Stores, 365 Utah Adv. Rep. 10, 11 (Utah Ct. App. 1999)
(citing Utah Dep't of Transp. v. 6200 S. Assocs., 872 P.2d 462,
465 (Utah Ct. App. 1994)).
¶21
A FELA plaintiff may recover "damages
for such results of the defendant's wrong as the plaintiff will probably
suffer in the future."(2) Moore v.
Denver & Rio Grande W.R.R. Co., 4 Utah 2d 255, 258, 292 P.2d 849,
851 (1956); accord Kirchgestner v. Denver & Rio Grande W.R.R.
Co., 118 Utah 20, 34-35, 218 P.2d 685, 693 (1950). Likewise, testimony
regarding the likelihood of future medical treatment resulting from a railroad
employer's negligence must show "a probability rather than a possibility."
Dallas
v. Burlington N., Inc., 689 P.2d 273, 277 (Mont. 1984). If the testimony
shows a mere possibility, it is inadmissible. SeeHarp v. Illinois Cent.
Gulf R.R. Co., 370 N.E.2d 826, 829-30 (Ill. App. Ct. 1977); see
also Phillip E. Hassman, Annotation, Admissibility of Expert Medical
Testimony as to Future Consequences of Injury as Affected by Expression
in Terms of Probability or Possibility, 75 A.L.R.3d § 2[a] (1977)
("The majority of jurisdictions . . . will admit only that testimony concerning
future consequences which, in the opinion of the expert, will 'probably
occur' or for which there exists a 'reasonable probability' of occurrence.").
"This standard is best understood as requiring the victim to introduce
evidence to demonstrate that the future event will more likely than not
occur--that is, there is a greater than fifty percent chance of occurrence."
David P.C. Ashton, Comment,
Decreasing the Risks Inherent in Claims
for Increased Risk of Future Disease, 43 U. Miami L. Rev. 1081, 1103
(1989); see also Dallas, 689 P.2d at 277 (stating medical
testimony regarding future medical treatment must be "based upon an opinion
that it is 'more likely than not'");
Webster's New Universal Unabridged
Dictionary 1433 (1983) (defining "probable" as "that which is likely
to be so, or more likely to occur than not to occur").
¶22
Here, Dr. Bryan's trial testimony
had been taken by videotaped deposition. The actual testimony was thus
before the trial court when it considered Union Pacific's pretrial motion
to exclude the testimony. In pertinent part, the exchange between Dalebout's
attorney and Dr. Bryan follows: Counsel asked, "[Y]ou feel that there is
a 30 percent likelihood that he will require back surgery; is that correct?"
Dr. Bryan answered, "I put down a figure of around 30." Counsel then asked,
"And whether or not if this surgery goes about, that he will be able to
continue working as an engineer is unknown?" Dr. Bryan replied, "I don't
believe if he comes to the point of requiring an operation that he will
go back working as an engineer." Obviously, thirty percent is below fifty
percent. Dr. Bryan's testimony raised only a possibility--not a probability--of
future surgery. Consequently, the trial court incorrectly admitted into
evidence this portion of Dr. Bryan's testimony.
¶23
Of course, "[e]rror may not be predicated
upon a ruling which admits . . . evidence unless a substantial right of
the party is affected." Utah R. Evid. 103(a). However, we agree with Union
Pacific's assertion that a reasonable likelihood exists that this testimony
contributed to the jury's decision to award substantial damages for both
future impairment of earning capacity and pain and suffering. "The erroneous
admission of such testimony is reversible error, as it is impossible to
determine to what extent the jury relied upon the testimony in its assessment
of the damages." Harp, 370 N.E.2d at 829-30. Under our analysis,
a new trial without Dr. Bryan's testimony regarding the thirty-percent
chance of future surgery is warranted to reconsider damages for future
pain and suffering and for impairment of earning capacity. However, before
remanding on the issue of future-earning-capacity damages, we must address
Union Pacific's final contention.
III. Future Impairment of Earning Capacity
¶24
Union Pacific charges that, without
Dr. Bryan's testimony on the thirty-percent chance of future surgery, coupled
with his statement that Dalebout could not continue working as an engineer
after such surgery, insufficient evidence exists to support Dalebout's
claim of impaired future earning capacity. Union Pacific thus asserts that
we should not include this issue in our remand for a new trial, but should
simply reverse the jury verdict and award nothing regarding this aspect
of damages.
¶25
Union Pacific challenged in vain
the sufficiency of the evidence before the trial court in motions for directed
verdict and JNOV. The trial court would have been justified in granting
Union Pacific's motion for a directed verdict solely if, when viewing the
evidence in a light most beneficial to Dalebout, no competent evidence
existed to sustain a verdict for Dalebout. SeeMerino v. Albertsons,
Inc., 363 Utah Adv. Rep. 8, 8 (Utah 1999); see also Central
of Georgia R.R. Co. v. Mock, 499 S.E.2d 673, 675 (Ga. Ct. App. 1998)
("'In a FELA case, a directed verdict is possible only when there is a
complete
absence of probative facts supporting the nonmovant's position.'" (Citation
omitted.)). Similarly, the trial court would have been justified in granting
Union Pacific's motion for JNOV only if, examining all the evidence in
a light favoring Dalebout, the evidence was insufficient to uphold the
verdict. See Hall v. Wal-Mart Stores, Inc., 959 P.2d 109,
111 (Utah 1998). However, as we will explore further below, "[i]t is a
rare [FELA] case in which a defense motion for a directed verdict or a
[JNOV] is successful either initially at the trial or ultimately on appeal."
11 Am. Jur. Trials Federal Employers' Liability Act Litigation §
2 (1966).
¶26
It is well settled that a FELA plaintiff
may claim compensatory damages for impaired earning capacity. SeeFashauer
v. New Jersey Transit Rail Operations, Inc., 57 F.3d 1269, 1284 (3d
Cir. 1995). "Earning capacity means the potential for earning money in
the future . . . ." Belt v. Burlington N.R.R. Co., No. A-96-305,
1997 Neb. App. LEXIS 110, at *29 (Neb. Ct. App. 1997); seeCorbett v.
Seamons, 904 P.2d 229, 232 n.2 (Utah Ct. App. 1995). To recover, "a
plaintiff must show that his injury has caused a diminution in his ability
to earn a living. Such a diminution includes a decreased ability to weather
adverse economic circumstances, such as a discharge or lay-off, or to voluntarily
leave the defendant employer for other employment."
Gorniak v. National
R.R. Passenger Corp., 889 F.2d 481, 484 (3d Cir. 1989); see
Donovan v. Port Auth. Trans-Hudson Corp., 707 A.2d 171, 175 (N.J.
Super. Ct. App. Div. 1998).
¶27
Union Pacific argues that this showing
by the plaintiff must be detailed and explicit, citing two FELA cases similar
to this one: Fashauer, 57 F.3d at 1269, and DeChico v. Metro-North
Commuter R.R., 758 F.2d 856 (2d Cir. 1985). It is true that if we used
Fashauer
and DeChico as our guiding legal authority, we would likely overturn
the jury verdict here and decline to award any damages for future impairment
of earning capacity. However, the policy underpinnings of FELA and other
FELA cases we have reviewed persuade us to avoid such a harsh result and
give Dalebout at least the chance to retry his future-earning-capacity
damages without Dr. Bryan's inadmissible testimony.
¶28
One of FELA's aims was to ensure
that juries would determine a higher percentage of cases than the proportion
of those decided by juries at common law. See 13 Personal Injury
§ 2.02[5] (Louis R. Frumer & Melvin I. Friedman eds., 1998); see
also 11 Am. Jur. Trials, supra, § 187 (stating Supreme
Court has strongly emphasized "integrity of the jury system in FELA cases").
"In other words, the legislation was remedial and trial by jury was part
of the remedy. Accordingly, the jury's power to draw inferences under FELA
is significantly broader than at common law." 13 Personal Injury,
supra,
§ 2.02[5]; accord Belt, 1997 Neb. App. LEXIS 110, at
*24; see also 11 Am. Jur. Trials, supra, § 135 ("There
is much room, perhaps more in FELA cases than in most litigation, for the
use of circumstantial evidence and for the jury to draw inferences of negligence
and of the other elements of the claim from the facts in evidence. It does
not matter that possible inferences may be conflicting. It is the very
essence of the jury's function to select from among conflicting inferences
and conclusions those that it considers most reasonable."). Thus, "although
there are [FELA] cases that may be resolved as a matter of law, such cases
are very few." 11 Am. Jur. Trials, supra, § 188. Our function
as an appellate court "'is exhausted when the evidentiary basis becomes
apparent, it being immaterial that the court might draw a contrary inference
or feel that another conclusion is more reasonable.'"
CSX Transp. Inc.
v. Maynard, 667 So. 2d 642, 644 (Ala. 1995) (quoting
Lavender v.
Kurn, 327 U.S. 645, 653, 66 S. Ct. 740, 744 (1946)).
¶29
In light of these principles, some
jurisdictions require no more than proof that the plaintiff has a permanent
injury somehow causing work difficulties to send to the jury the question
of damages for impairment of future earning capacity. See, e.g.,
id.
at 647 ("'A complaint alleging permanent injury is sufficient to imply
impairment of earning capacity.'" (Citation omitted.));
Honeycutt v.
Wabash R.R. Co., 313 S.W.2d 214, 218 (Mo. Ct. App. 1958) ("[P]roof
that plaintiff suffered a permanent injury is sufficient evidence for a
recovery for loss of future earnings . . . [so long as there is] a causal
relationship between the permanent injury and the impairment of ability
to work."). Certainly, in this case, at least that much evidence exists:
Dr. Bryan testified that Dalebout will suffer from back pain and need treatment
for the rest of his life. Dalebout testified that, although he generally
works with his hands, he is quite physically uncomfortable at work and
his job description requires that he be able to help lift up to eighty-three
pounds, which would be hard for him. The Union Pacific representative testified
that the railroad could require Dalebout to submit to a physical examination
at any time to ensure he is fit for duty, including the lifting criterion.
From Dalebout and the Union Pacific representative's testimony, the jury
could infer that Dalebout's permanent injury might impair his ability to
work. However, we need not rely solely on that proof in determining sufficient
evidence exists to send this issue back to the jury.
¶30
The evidence showed that Dalebout
did not finish college, has been working for the railroad for much of his
adult life, and has very little work experience in other contexts. What
little outside work experience he does have seems mostly related to skiing,
an activity he has had to quit because of his back injury. The evidence
further implied that Dalebout's railroad work could be somewhat physically
rigorous. Dr. Bryan opined that Dalebout's disc disease and injury would
only worsen in the future, while Dalebout testified that the associated
pain has steadily risen over the years.
¶31
From this testimony, the jury could
have made a variety of broad inferences--which we have noted a jury is
free to do under FELA law. For instance, the testimony as to Dalebout's
age, lifting restriction, and the variety of constraints on his activities
and movements could have led the jury to believe that Dalebout lacks job
security--particularly in view of Union Pacific's right to physically examine
him and hold him to the physical demands of his job description. SeeSanford
Bros. Boats, Inc. v. Vidrine, 412 F.2d 958, 971 (5th Cir. 1969). Moreover,
nothing in the evidence guarantees that the engineer position or any feasible
alternative will be open to Dalebout for the remainder of his work life.
See Moore v. Chesapeake & Ohio R.R. Co., 649 F.2d 1004,
1011-12 (4th Cir. 1981). Because Dalebout had not finished college and
had done fairly physical work during virtually his whole career, the jury
could have determined "that available occupational alternatives for [Dalebout]
were not numerous and that his injury had . . . impaired his future earning
potential" if he needed to look for other work. Sanford Bros., 412 F.2d at 972. Further, based on Dalebout's testimony about his increasing
pain and discomfort on the job, the jury could have inferred that Dalebout
"would no longer be able to continue working as a[n engineer] or that he
might choose to seek an easier and less painful job" paying him less. Belt,
1997 Neb. App. LEXIS 110, at *36; see alsoRobison v. Atchison, Topeka
& Santa Fe Ry. Co., 27 Cal. Rptr. 260, 264 (Cal. Ct. App. 1962)
("In view of the plaintiff's age and the evidence as to the discomfort
involved in the performance of his duties and as to his impaired agility,
the trier of fact could properly find that he was reasonably certain to
suffer a loss of future earnings . . . .").
¶32
Even so, Union Pacific counters
that since the injury Dalebout has not missed work except for the first
ten days, has not missed a paycheck, and has even had raises. Union Pacific
reminds us that Dalebout has not hinted that he might leave the railroad
for any reason. It is true at the time of trial Dalebout was still an engineer
for Union Pacific, but this does not keep him from being dismissed or laid
off in the future. See Wiles v. New York, Chicago & St. Louis
R.R. Co., 283 F.2d 328, 332 (3d Cir. 1960). As the Third Circuit has
noted,
Because of his present employment
[Dalebout] has not yet suffered economic loss but if he cannot obtain gainful
employment elsewhere he is chained to his present job in a kind of economic
servitude. We cannot think that it was the intention of Congress in enacting
[FELA] to effect such a result.
Id.; see also Gorniak,
889 F.2d at 484 (stating even if injured plaintiff was assured of keeping
his job permanently, plaintiff could still recover as he has no duty to
stay with current railroad employer); Moore, 649 F.2d at 1012 (declaring
plaintiff "was under no obligation to keep her current position . . . for
the rest of her life"); Belt, 1997 Neb. App. LEXIS 110, at *35-36
("The likelihood that the injured worker's employment with the railroad
will or will not continue should, as are all factual matters, be left for
the jury to decide . . . .").
¶33
Union Pacific's contentions are
not entirely without merit, though:
The fact that plaintiff
remained employed in a higher paying position, whether under those circumstances
plaintiff was likely to look elsewhere for employment, and whether there
was any real likelihood that the employer would terminate plaintiff under
the circumstances are simply factors for the jury to consider in determining
whether such damages should be awarded.
Donovan, 707 A.2d at 175; see
also Illinois Cent. Gulf R.R. Co. v. Russell, 551 So. 2d 960, 964 (Ala. 1989) ("The fact that [the plaintiff] has continued to work six
or seven days a week for sixteen months is 'merely evidence to be considered
by the jury in determining whether or not his earning power had been impaired
by the accident.'" (Citation omitted.)); Robison, 27 Cal. Rptr.
at 263 (holding evidence sufficient despite fact "that the plaintiff was
able to return to his work 75 days after the accident and that he worked
steadily thereafter"); Belt, 1997 Neb. App. LEXIS 110, at *37 (stating
that counsel may alert jury to claim's weaknesses--i.e., plaintiff's lack
of plans to leave railroad and compete in job market with injury--but those
facts do not automatically render evidence insufficient). Of course, we
do not suggest that the evidence as a whole
necessarily supports
awarding Dalebout damages for future impairment of earning capacity. SeeGorniak,
889 F.2d at 484. We merely conclude that Dalebout introduced adequate evidence
to permit a reasonable fact finder to determine that his earning capacity
could dwindle in the future. See id.
¶34
We reiterate: "Our decision here
is controlled by the fact that this is a FELA case, and the strong preference
in such a case is for the jury to determine all factual issues where the
jury can reasonably draw the particular inference or conclusion submitted
to it." Foltz v. Burlington N.R.R. Co., 689 S.W.2d 710, 716 (Mo.
Ct. App. 1985). We elect to leave "the resolution of any uncertainty .
. . to a properly instructed jury." Belt, 1997 Neb. App. LEXIS 110,
at *34; accordGorniak, 889 F.2d at 484. Consequently, we hold that
enough evidence exists regarding future impairment of earning capacity,
even absent Dr. Bryan's testimony on the thirty-percent chance of future
surgery, to remand this issue of damages to be retried.
CONCLUSION
¶35
We conclude the trial court incorrectly
admitted Dr. Bryan's testimony that Dalebout has a thirty-percent chance
of needing surgery in the future. This was reversible error because there
is a substantial likelihood the verdict awarding damages for future impairment
of earning capacity and pain and suffering would have been different without
the inadmissible testimony. Further, aside from Dr. Bryan's inadmissible
testimony, enough evidence exists to support a jury verdict awarding damages
for future impairment of earning capacity. Accordingly, we affirm in part
and reverse in part, remanding for a new trial--without Dr. Bryan's inadmissible
testimony--on damages for both future impairment of earning capacity and
pain and suffering.
______________________________
Norman H. Jackson, Judge
-----
¶36
WE CONCUR:
______________________________
Pamela T. Greenwood,
Associate Presiding Judge
______________________________
Judith M. Billings, Judge
1. We have reviewed the other issues raised by the parties and have determined they lack merit; we therefore decline to address them further other than to affirm the trial court. See State v. Carter, 776 P.2d 886, 888 (Utah 1989) (stating we "need not analyze and address in writing each and every argument, issue, or claim raised and properly before us on appeal").
2. Instead of
probability, some jurisdictions speak of the "reasonable certainty of future
damages." See, e.g., Trejo v. Denver & Rio Grande W.R.R.
Co., 568 F.2d 181, 184 (10th Cir. 1977); Harp v. Illinois Cent.
Gulf R.R. Co., 370 N.E.2d 826, 829 (Ill. App. Ct. 1977); Foltz v.
Burlington N.R.R. Co., 689 S.W.2d 710, 716 (Mo. Ct. App. 1985). About
this discrepancy in terms, one commentator has noted:
The clarity of the reasonable
certainty standard . . . has been confounded by a confusing clutter of
labels, such as 'in all likelihood,' 'reasonably probable,' 'medically
probable,' 'probable,' 'more probable than not,' 'a probability,' 'more
likely than not,' 'greater than fifty percent,' 'reasonable medical certainty,'
or any combination of the above. These labels are used in an apparent attempt
to shed light upon the degree of proof required of the burdened party.
The net effect of this profusion of language is to leave one wondering
whether the courts are discussing the same standard or standards of subtly
different degrees.
David P.C. Ashton, Comment, Decreasing
the Risks Inherent in Claims for Increased Risk of Future Disease,
43 U. Miami L. Rev. 1081, 1103-04 (1989) (footnotes omitted); see also
Phillip E. Hassman, Annotation, Admissibility of Expert Medical Testimony
as to Future Consequences of Injury as Affected by Expression in Terms
of Probability or Possibility, 75 A.L.R.3d § 2[a] (1977) ("[T]here
is considerable confusion among the cases as to the meaning of 'reasonable
certainty,' 'probability,' 'speculation,' and 'conjecture' . . . .").
We discuss this case using the term
"probable" just as the Utah Supreme Court has when discussing future damages
in the two FELA cases we cite in the above text.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
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