Colyer v. Consolidated Rail , 114 F. App'x 473 ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
10-20-2004
Colyer v. Consolidated Rail
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-3890
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"Colyer v. Consolidated Rail" (2004). 2004 Decisions. Paper 208.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/208
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 02-3890
____________
CARL R. COLYER, SR.,
Appellant,
v.
CONSOLIDATED RAIL CORPORATION,
_________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
(Dist. Ct. No. 02-84J)
District Court Judge: Hon. D. Brooks Smith
Argued March 9, 2004
Before: SLOVITER, NYGAARD, Circuit Judges, and OBERDORFER,* District Judge.
(Opinion Filed: October 20, 2004)
______________________
OPINION OF THE COURT
______________________
*
The Honorable Louis F. Oberdorfer, Senior District Judge, United States District
Court for the District of Columbia, sitting by designation.
Mary E. Dixon, Esq.
White & Williams
One Liberty Place
Suite 1800
Philadelphia, PA 19103
Counsel for Appellant
J. Lawson Johnston, Esq.
Dickie, McCamey & Chilcote
Two PPG Place
Suite 400
Pittsburgh, PA 15222
Counsel for Appellee
OBERDORFER, District Judge: Plaintiff-appellant Carl Colyer sued Consolidated Rail
Corporation 1 (“Conrail”) under the Federal Employers’ Liability Act (“FELA”), 45
U.S.C. §§ 51 et seq., for damages resulting from an accident he suffered while working
for Conrail in 1998. A jury found Conrail negligent and awarded Colyer $20,000, which
the trial judge reduced to $4000 based on the jury’s finding that Colyer was 80%
responsible for the accident.
On appeal, Colyer challenges the following district court decisions: (1) the denial
of his request for post-trial relief on the ground that the jury verdict on contributory
negligence was not supported by the evidence; (2) the denial of his request for a new trial
based on “newly discovered evidence,” namely, his employer’s finding him unfit to return
1
Some Conrail operations -- including those at the facility where Colyer
worked -- were taken over by Norfolk Southern Railway Company (“Norfolk Southern”)
in 1999, after the injury but during Colyer’s post-injury employment.
2
to work immediately after trial, despite testimony at trial that he would be able to return to
his old position; and (3) the granting of defendant’s motion for judgment as a matter of
law as to damages for lost future earning capacity.
We affirm the district court’s decisions on the first two issues. As to the third,
appellant persuades us that the accident deprived him of physical capacities requisite to
performing work he could perform before the accident. We therefore reverse and remand
for retrial on the issue of damages for lost future earning capacity.
I
A. Facts and Factual Disputes at Trial
1. The Plaintiff’s Injury
Colyer worked as a carman in the Conrail Locomotive Repair Shop in
Hollidaysburg, Pennsylvania at the time of his injury. A carman’s duties may include
repair of train cars, masonry, and painting. Colyer had performed all these jobs at various
times in the 24 years he was employed as a carman for the railroad.
On the afternoon of March 9, 1998, while using an acetylene torch to repair a
damaged train car, Colyer sustained third-degree burns to a two-inch by three-inch area
on the top of his left foot. Colyer was using the torch to “burn” areas of the car, that is,
using the torch’s heat to soften or melt metal parts of the rail car to remove or smooth
them (rather than to weld things together). Burning is performed with use of a torch
connected to two hoses, one for acetylene and one for oxygen.
3
There was conflicting testimony at trial as to how the accident occurred. Colyer
testified (with the support of several eyewitnesses) that he was injured when some type of
explosion released a fireball from a hole on the side of one of the hoses attached to his
torch. Conrail’s witnesses testified that Colyer’s injury most likely occurred when a piece
of hot metal or “slag” from the burning procedure fell into or onto Colyer’s boot.
There was also conflicting evidence as to the extent to which the railroad’s
negligence, or Colyer’s, caused or contributed to the accident, regardless of how it
occurred. Colyer introduced expert and lay testimony that Conrail did not properly
maintain, inspect, or store the hoses in its shop, and that the hoses were often in poor
condition. A section of the hose that Colyer had been using the day of the accident was
introduced at trial. There was at least one hole visible in that section. Witnesses for both
parties agreed that it would not be safe to use the section of hose in the condition it was in
when introduced at trial. However, no one was able to say where that section had been
located on the hose (near or far from where Colyer had been working), nor whether any
hole (or holes) existed at the time of the accident.
Before using the torch the day of the accident, Colyer inspected the four- to six-
foot area of the hose closest to where he was working and saw no particular problems.
The parties agreed that it was Colyer’s duty, confirmed by the Conrail Safety Rules, to
inspect his equipment. There was conflicting testimony, however, as to whether Colyer’s
inspection satisfied company and industry standards or whether he should have inspected
4
the entirety of the hose.
The parties also introduced conflicting testimony as to whether Colyer’s injuries
could have been avoided (or minimized) if he had worn spats over his boots to provide
additional protection, and whose fault it was that Colyer was not wearing spats at the time
of the accident. Spats were not part of the safety gear Conrail required, but the company
generally had them available for carmen who wished to wear them. Colyer testified that
he had requested spats on the day of the accident, but Conrail had none available that day.
Conrail pointed to evidence (from one of Colyer’s experts) that, as a general rule, Colyer
did not wear spats because he saw them as a tripping hazard.
2. Medical Treatment and Diagnosis
Three weeks after the accident, on March 31, 1998, Dr. Louton, a plastic surgeon,
performed a full thickness skin graft to reconstruct the skin that had been destroyed by the
third-degree burns. The surgery was successful. After a several-month recovery period,
Colyer was released to work without restrictions; he returned to work as a carman on or
about June 16, 1998.2
Approximately one year later, in June and July of 1999, Colyer consulted Dr.
Opida, a neurologist, about lessened sensations and occasional intermittent pain on the
outside of his injured foot. Dr. Opida testified that the symptoms reflected sensory nerve
2
The parties stipulated that Colyer’s lost wages from the time of the accident
through his initial return to work in June 1998 totaled $6,864.00.
5
damage that was likely to be permanent, but that the motor nerves were not damaged.
The neurologist testified that the sensory nerve damage appeared to be an after-effect of
Colyer’s burn, but acknowledged that this conclusion was based on the information he
received from Colyer as to the onset of his symptoms. The neurologist prescribed some
medication for Colyer but it did not resolve the problem or reduce the symptoms.
The following summer, in July of 2000, Colyer returned to Dr. Louton (the plastic
surgeon who had performed the skin graft) complaining about irritation between the
fourth and fifth toes of his left foot. At Dr. Louton’s suggestion, Colyer consulted a
podiatrist, Dr. Raymond, about this problem. Dr. Raymond diagnosed Colyer as having
severe corns between those toes and as having hammer toes on toes two, three, four and
five (all but the big toe) of both his feet. Dr. Raymond testified that the hammer toes
were unrelated to the burn and appeared to pre-date the injury, but that the severe corns
on the toes of his left foot “could be related to the work-related injury” if Colyer “was
altering his gait and putting additional pressure on the outside of his foot to avoid
pressure” on the locations where it was painful. AR128, 131. On cross-examination, Dr.
Raymond conceded that he was “not sure” whether the problem with the fourth and fifth
toes of Colyer’s left foot was related to the burn. Dr. Raymond initially treated Colyer by
trimming the corns every few months, but eventually decided surgery was needed to
correct the hammer toes on the fourth and fifth toes of Colyer’s left foot in light of the
severe and recurring corns there. Dr. Raymond performed surgery on August 20, 2001.
6
Colyer also introduced the expert testimony of Dr. Wardell, an orthopedic surgeon
who examined Colyer on September 21, 2001 (about a month after his surgery). Dr.
Wardell testified that Colyer suffered permanent nerve damage as a result of the burn. He
also testified that the burn had caused a “gait abnormality . . . due to the limited motion,
limited excursion of [the extensor] tendons . . . . [B]ecause of the dysfunction due to the
scarring of the tendons, he lacked the push-off because the tendons held the toes up.” AR
278. According to Dr. Wardell, the “callus lesions over the fourth and fifth toes [were]
secondary to the gait abnormality that was due to the burn.” AR 279.
3. Ability to Work / Loss of Future Earnings Capacity
On December 6, 2001, Dr. Raymond cleared Colyer to return to work as of January
5, 2002. Although Dr. Raymond did not place any particular restrictions or limits on
Colyer’s ability to work, he testified that, as of Colyer’s December 2001 physical
examination, his injuries placed “physical limitations” on him in that “any activity that
would require [him] to place his foot in a downward position such as going down a
ladder, walking down an uneven surface, [or] kneeling in which his foot is placed in a
backward position could create or would create discomfort.” AR 135.
Dr. Wardell testified that Colyer had a “10 per cent permanent impairment of his
left lower extremity.” AR 282. He stated that “as a result of the injury and the type of
surgery that [Colyer] had, even with a successful result, he would not be able to perform
the job of a carman,” AR 281, which, he explained, include “stand[ing] and walk[ing] for
7
prolonged periods of time, . . . squatt[ing], crawl[ing], kneel[ing], crouch[ing] and
stoop[ing,] climb[ing] on irregular surfaces . . . or . . . vertical ladders or steps which are
fairly steep.” AR 274.
Cross-examination focused on the fact that Dr. Wardell had examined Colyer only
once, and then approximately a month after his surgery. Dr. Wardell conceded that he
would need a functional capacity assessment performed after Colyer attained maximum
improvement after his foot surgery to know precisely what work restrictions Colyer
would operate under. Nonetheless, Dr. Wardell maintained that, if Colyer returned to his
old job, his painful calluses and lesions would recur. Although Dr. Wardell conceded that
Colyer could physically perform a carman’s job once he recovered from surgery, he said
that Colyer “would have to put up with the onset of the painful calluses,” which “will
cause enough pain that he should not work [as a carman].” AR 296-97.
Colyer testified that “it’s difficult” for him to do the work necessary for a carman’s
job, because that “necessitates climbing, crawling, bending over, kneeling down, [and]
bending your foot in different positions.” He testified that while he could likely do the
work required by some carman positions (most likely as a mason, which Colyer seemed to
believe was the type of carman position least likely to exacerbate his symptoms), there
would be no assurance that he could keep any such position since more senior employees
frequently “bump” those with less seniority down to less desirable and more taxing jobs.
Other employees who testified confirmed the seniority “bumping” procedures. Colyer’s
8
former supervisor testified that Colyer himself would be entitled to “bump” only one of
the people holding a mason position, suggesting that he might not be able to keep that
position. At the time of trial, Colyer had submitted the paperwork necessary to return to
work and was scheduled for a company physical that was required before he could
attempt to return to work.
Colyer also testified that he had made “inquiries” to find out about alternate
employment while he was recovering from his surgery:
A. . . . I started sending my resume to different people and different places and
the job center. As a matter of fact I was just out there last week at the job
center, at the training center. I went there and applied for a job that Mr.
Krause is going through to help teach, but it was a welding job, and I told
them that I wouldn’t be able to hold a welding job but I thought maybe it
was some other type of job. But I have called numerous people and I sent
out numerous resumes, and the City of Altoona is kind of tough right now.
I have a degree in building construction technology from Williamsport
Trade School, so I’m pretty good at carpentry and masonry work, but it’s
kind of hard to do. . . .
Q. The work you checked on that you can do, how much would it pay?
A. It seemed to me about the average job out there was about $8 an hour.
Q. Have you been able to get a job?
A. Not yet.
AR 346-47.
B. Trial and Verdict
Trial began on January 15, 2002. At the close of Colyer’s case in chief, Conrail
moved for judgment as a matter of law. The district court denied the motion as to liability
9
but deferred ruling as to Colyer’s claim for damages for loss of future earning capacity.
At the close of evidence, on January 22, 2002, the court granted Conrail’s motion as to
the future earning capacity claim. The court held that “Colyer has provided some
evidence that he has a permanent disability and cannot return to his job as a carman, but
has not offered any evidence to show that he would have difficulty obtaining work with
other employers, that he is only qualified for other jobs that are less lucrative than his
former job with defendant or even that his injury limits his economic potential.” AR 27.
The district court therefore removed from the jury the question of damages for lost
earning capacity, holding that Colyer had “not provided any evidence that could
demonstrate that his injuries narrowed the range of economic opportunities available to
him.” Id. (internal quotation omitted).
Thereafter, the jury returned a verdict for Colyer in the amount of $20,000. The
jury found that Conrail was 20% negligent and Colyer 80% negligent as to Colyer’s
injuries. The judge then molded the verdict to reflect the jury’s contributory negligence,
resulting in a verdict of $4,000.
C. Post-Trial Attempt to Return to Work
One week later, on January 29, 2002, Colyer underwent a functional capacity
evaluation that was required before he could return to work. The functional capacity
report by ProCare Rehabilitation (the “ProCare report”) identified “left foot pain” and
“difficulty returning to work on a full time, unrestricted basis” as Colyer’s “primary
10
problems” AR 57. It listed a “diagnosis” of “burn dorsal left foot; hammertoe 4th and
5th.” The ProCare report stated that Colyer had attained a “physical demand category” of
“light-medium.” Id. It also stated that Colyer’s “symptom magnification test rating” was
“high” and that he had not given “maximum effort,” noting that his “actual capacities may
be higher vs. reported.” Id. An Addendum to the ProCare report -- dated January 31, two
days after the examination -- notes under “Past Medical History” that Colyer reported
“bilateral shoulder soreness” and a “left rotator cuff tear” that would require surgery at
some time that had not yet been scheduled.
The day after the functional capacity examination, January 30, 2002, Colyer’s
former supervisor, Bill Miller, called to tell Colyer that, based on the ProCare report, he
had been found not fit to return to work.
D. Post-Trial Motions
Colyer moved for post-trial relief in the alternate forms of either an amendment of
the judgment or a new trial, in whole or only as to damages. He argued that the verdict
was against the weight of the law and the evidence. He also argued that the trial court
had erred in taking the question of damages for loss of future earnings away from the
jury. Finally, he claimed he was entitled to relief because of newly discovered evidence,
namely, his employer finding him unfit to return to work.
The district court denied Colyer’s motion. In holding that the verdict was
consistent with the law and the evidence, the court stated:
11
There is ample evidence from which a jury may have concluded that the
defendant was negligent in allowing hot slag to drop on his boot or in
failing to wear spats. While plaintiff may believe that the award of
damages was inadequate (and I must concede that I personally consider it
quite low), a jury may have concluded that the plaintiff’s damages as a
result of the injury were temporal in nature and limited to the months
immediately following his burn and his return to work without limitations.
AR 39. The court also reaffirmed its holding as to Colyer’s future earnings claim.
Finally, the district court held that the “new evidence” did not justify a new trial. The
court held that the fact that Colyer “has been declared unfit for work with the defendant”
is “not ‘newly discovered evidence’ because the record already contained testimony from
plaintiff and his physician that he was unable to return to his job as a carman.” AR 41.
The court reasoned that the “evidence probably would not have changed the outcome of
the trial because the jury instructions still would not have included the damage elements
of loss of future earning capacity and loss of future wages.” Id. The judge acknowledged
that he saw this evidence as going farther than the evidence at trial in that it showed
Colyer could not “perform work above a medium level of exertion” and “demonstrates a
narrowing of the plaintiff’s economic horizons because he cannot perform heavy labor.”
Id. The court nonetheless declined to grant relief “because this is the type of evidence
that could have been obtained prior to trial” and “counsel should have anticipated the
need for evidence of this nature prior to trial.” Id.II
The district court had jurisdiction over this FELA action pursuant to 28 U.S.C.
12
§ 1331. We have jurisdiction over the appeal under 28 U.S.C. § 1291.
A. Motion for New Trial: Verdict Against the Weight of the Evidence
Colyer moved for a new trial, in whole or as to damages only, on the grounds that
the jury verdict was against the weight of the law and of the evidence. The district court
denied that motion. Colyer challenges that decision, arguing that the evidence at trial
established that Conrail’s negligence was largely, if not entirely, responsible for his
injuries. He claims that the jury’s finding that he was 80% contributorily negligent was
not supported by the evidence. He also argues that the $20,000 jury award was so
inadequate as to constitute a miscarriage of justice, citing the district judge’s statement
that the award was “quite low.”
We review for abuse of discretion the denial of a motion seeking a new trial on the
ground that the verdict is not supported by the evidence. Grazier v. City of Philadelphia,
328 F.3d 120, 128 (3d Cir. 2003). “[N]ew trials because the verdict is against the weight
of the evidence are proper only when the record shows that the jury’s verdict resulted in a
miscarriage of justice or where the verdict, on the record, cries out to be overturned or
shocks our conscience.” Williamson v. Consolidated Rail Corp., 926 F.2d 1344, 1353
(3d Cir. 1991). The district court properly recognized that “[t]his is not one of those
cases.” AR 39.
The evidence at trial amply supports the jury’s conclusion that Colyer’s own
negligence was largely responsible for his injuries. For example, Colyer conceded that he
13
was responsible for inspecting the hoses he used; the jury could have accepted the
testimony that welders should examine the entire length of the hoses they were using and
found Colyer’s inspection negligent, limited as it was to only a few feet of each hose.
Alternately, if the jury accepted the evidence that Colyer’s injury was caused by dripping
metal rather than a fireball from a defective hose, the jury could have found Colyer was
negligent in allowing hot slag to land on his foot. Moreover, the jury could have found
Colyer’s failure to wear protective spats to be his own fault if it accepted the testimony
that it was Colyer’s practice not to wear spats rather than Colyer’s testimony that Conrail
did not have spats available that day.
Nor does the amount of the verdict “shock the conscience.” The district judge’s
statement that he “personally consider[ed the award] quite low” is far from a finding that
the award was, as a matter of law, inadequate in light of the evidence at trial. “[J]uries
are afforded broad discretion and great leeway in fixing fair and reasonable compensation
to an injured party; thus, [plaintiff] bears a heavy burden to demonstrate that the jury’s
award cannot stand.” Waldorf v. Shuta, 142 F.3d 601, 621 (3d Cir. 1998). In light of
Colyer’s ability to return to work without limitations three months after the accident, and
given the dispute as to the extent to which his later injuries were caused by the accident,
the evidence did not compel a greater damages award.
The district court heard the testimony along with the jury and is in a better position
than we are, after reviewing the cold record, to determine whether the evidence supported
14
the jury’s verdict. We find that the district court acted well within its discretion in finding
that the verdict was supported by the evidence.
B. Motion for New Trial: Newly Discovered Evidence
Colyer also sought a new trial on the basis of “newly-discovered evidence,”
namely, “Defendant declar[ing] Mr. Colyer unfit to return to work” despite its “refrain
throughout trial that Mr. Colyer was able to return to work.” He challenges the district
court’s denial of that motion.
Although Colyer refers to “Defendant’s” finding him unfit for work, Colyer was
employed by Norfolk Southern, not Conrail, when he tried to return to work after trial. It
was Norfolk Southern, not Conrail, that sent him for a functional capacity evaluation and
found him unfit to return to work based on that evaluation. See, e.g., AR 43-44.
The “standard for granting relief on the basis of newly discovered evidence” is
“the same” whether relief is sought under Rule 60(b)(2) or pursuant to a motion for a new
trial under Rule 59, as here. Compass Technology, Inc. v. Tseng Labs., Inc., 71 F.3d
1125, 1130 (3d Cir. 1995) (discussing relationship between Fed. R. Civ. P. 60(b)(2) and
Fed. R. Civ. P. 59). Newly discovered evidence can justify a new trial “only if such
evidence (1) is material and not merely cumulative, (2) could not have been discovered
prior to trial through the exercise of reasonable diligence, and (3) would probably have
changed the outcome of the trial.” Bohus v. Beloff, 950 F.2d 919, 930 (3d Cir. 1991).
The party seeking a new trial “bears a heavy burden” since relief “should be granted only
15
where extraordinary justifying circumstances are present.” Id. We review the district
court’s denial of a new trial for abuse of discretion. Coregis Ins. Co. v. Baratta & Fenerty,
Ltd., 264 F.3d 302, 309 (3d Cir. 2001).
“Newly discovered evidence [is] evidence of facts in existence at the time of trial
of which the aggrieved party was excusably ignorant.” Bohus, 950 F.2d at 930 (emphasis
added). The “newly discovered evidence” here, according to Colyer, is his employer’s
decision that he was not fit to return to work. This, however, does not meet the definition
of newly discovered evidence since Colyer does not allege that his employer had made
this decision at the time of trial.3 We have long recognized that “disqualification of [a]
plaintiff for service . . . after the close of the case does not qualify as ‘newly discovered
evidence’” where the defendant “had not acted to disqualify [plaintiff] for service at the
time of the trial.” Brown v. Pennsylvania RR., 282 F.2d 522, 526-27 (3d Cir. 1960)
(affirming denial of new trial where defendant found plaintiff “not medically qualified” to
work one month after trial based on testimony of plaintiff’s trial witnesses). As the
Second Circuit explained in analogous circumstances, “[i]f it were ground for a new trial
that facts occurring subsequent to the trial have shown that the expert witnesses made an
inaccurate prophecy of the prospective disability of the plaintiff, the litigation would
3
We note that Colyer has not alleged that Norfolk Southern or Conrail knew
or had reason to know, at the time of trial, what the results (or employment consequences)
of Colyer’s functional capacity evaluation would be. Nor has he alleged that either
company acted in bad faith as to testimony introduced at trial or as to finding him unfit to
return to work. This might be a very different case if he had.
16
never come to an end.” Campbell v. American Foreign S.S. Corp., 116 F.2d 926, 928 (2d
Cir. 1941) (affirming denial of new trial based on plaintiff’s ability to work after trial).
Nor can the functional capacity evaluation -- which might be seen as evidence of
facts that existed at the time of trial, namely, Colyer’s physical condition -- be considered
“newly discovered evidence” that could justify a new trial. There is no reason that Colyer
could not have obtained equivalent evidence “prior to trial through the exercise of
reasonable diligence.” As the district court said, “this is the type of evidence that could
have been obtained prior to trial,” and which plaintiff’s “counsel should have anticipated
the need for . . . prior to trial.” AR 41.
Under the circumstances, we cannot say that the district court abused its discretion
in denying a new trial based on Norfolk Southern’s finding Colyer unfit to return to work.
C. Judgment as a Matter of Law: Damages for Lost Future Earning Capacity
A plaintiff in a FELA case may recover damages for the loss of future earning
capacity if his injuries “have narrowed the range of economic opportunities available to
him.” Gorniak v. Nat’l R.R. Passenger Corp., 889 F.2d 481, 484 (3d Cir. 1989)
(emphasis added). Conrail sought, and the district court granted, judgment as a matter of
law on this issue. The district court held that Colyer had “not offered any evidence to
show that he would have difficulty obtaining work with other employers, that he is only
qualified for other jobs that are less lucrative than his former job with defendant or even
that his injury limits his economic potential.” AR 27. Colyer challenges that holding.
17
Our review of a decision granting judgment as a matter of law is plenary.
LePage’s Inc. v. 3M, 324 F.3d 141, 145 (3d Cir. 2003). A motion for judgment as a
matter of law “should be granted only if, viewing the evidence in the light most favorable
to the nonmovant and giving it the advantage of every fair and reasonable inference, there
is insufficient evidence from which a jury reasonably could find liability.” Lightning
Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993). Judgment as a matter of law
is appropriate only if “the record is critically deficient of that minimum quantity of
evidence from which a jury might reasonably afford relief.” Trabal v. Wells Fargo
Armored Serv. Corp., 269 F.3d 243, 249 (3d Cir. 2001) (internal citation omitted).
To recover for the loss of future earning potential, a plaintiff need not “prove that
in the near future he will earn less money than he would have but for his injury.”
Gorniak, 889 F.2d at 484. A plaintiff must show “that his injury has caused a diminution
in his ability to earn a living,” which may occur through a “decreased ability to weather
adverse circumstances, such as a discharge or lay-off, or to voluntarily leave the
defendant employer for other employment.” Id. The necessarily speculative nature of
this inquiry is not grounds for removing it from a jury. As we have explained,
we cannot say that there [is] a significantly larger element of speculation in
arriving at an estimate of [a plaintiff’s] loss of future earnings than there
would be in any ordinary instance requiring an estimate of damages by a
jury. Since none of us is capable of foreseeing the future with any
substantial degree of certainty every estimate of damages must contain
elements of speculation.
Wiles v. New York, Chicago & St. Louis R.R. Co., 283 F.2d 328, 332 (3d Cir. 1960).
18
This Court has long “express[ed] a preference for leaving the resolution of any
uncertainty about whether [] circumstances [affecting a plaintiff’s future earnings] will
come to pass to a properly instructed jury; a jury that may consider and weigh all the
relevant factors and determine what price to place on a narrowing of a plaintiff’s
economic horizons.” Gorniak, 889 F.2d at 484 (citing Wiles).
The evidence at trial as to limitations on Colyer’s future earning capacity included:
medical testimony that he had a permanent disability that limited his ability to perform
various tasks (such as kneeling, squatting, walking on uneven surfaces, or going down a
ladder); expert testimony that he could no longer work as a carman, based on an
understanding that the job required the ability to squat, crawl, kneel, crouch, stoop, and
climb on irregular surfaces and ladders; testimony that even if Colyer could perform some
carman duties, there was no guarantee that he could return to a position requiring only
such duties and, even if he obtained such a position, he might be “bumped” from it at any
time; and Colyer’s own testimony about “inquiries” he made about alternate employment
outside the railroad, including his inability to do or difficulty doing jobs for which he was
trained (such as welding, carpentry, and masonry) and his view, based on those inquiries,
that the “average job out there” that he could perform paid “about $8 an hour.” AR 346.
Viewing this evidence in the light most favorable to Colyer, and giving him the
“advantage of every fair and reasonable inference,” Lightning Lube, 4 F. 3d at 1166, we
find that Colyer did submit “that minimum quantity of evidence from which a jury might
19
reasonably” conclude that his injuries had decreased the economic opportunities available
to him. Trabal, 269 F.3d at 249. Given our longstanding preference for allowing the jury
to “consider and weigh all the relevant factors and determine what price to place on a
narrowing of a plaintiff’s economic horizons,” Gorniak, 889 F.2d at 484, we conclude
that the district court erred in withdrawing this question from the jury. The evidence here
is comparable to that found to require sending this issue to the jury, or to support a jury
verdict, in prior cases.
The district court held that Colyer had submitted sufficient evidence for a jury to
conclude that he has a permanent disability that would prevent him from working in his
former position but not that he “would have difficulty obtaining an equally lucrative job
with employers other than defendant.” AR 26. However, this Court has never required a
plaintiff to provide detailed evidence as to the likelihood of finding other jobs at a similar
salary level. Past decisions instead reflect faith in the jury’s ability to weigh various
factors affecting a potential loss of future earning capacity when a plaintiff shows that his
injuries have foreclosed some potential employment opportunities.
For example, this Court reversed a decision granting defendant a directed verdict
as to the loss of future earning capacity despite the district court’s holding that there was
“no evidence regarding what, if any, positions [in plaintiff’s field] were available to
him[,] his prospect of attaining such a position[, or] what salary he would receive.”
Wilburn v. Maritrans GP, 139 F.3d 350, 361 (3d Cir. 1998) (emphasis added). Wilburn
20
introduced evidence that his accident at sea left him with permanent injuries that
restricted his activities, although he could still perform his former job by compensating
for those injuries. Id. at 363. He also introduced expert psychiatric testimony that the
trauma of his accident at sea left him fearful of jobs that would require him to be out of
sight of land (or “coastwise”) in bad weather. Wilburn testified that he had withdrawn an
application for a promotion when he was told he might be required to go coastwise and
would not get the job if he remained unwilling to do so. We found this sufficient to allow
a jury to find “a narrowing of Wilburn’s economic opportunities” and “a sufficient basis
upon which ... to compensate [him] for loss of future earning capacity.” Id. We did not
require plaintiff to demonstrate “what, if any, positions ... were available to him[,] his
prospect of attaining such a position[, or] what salary he would receive.” Id. at 361.
In Gorniak, we upheld an award of damages for lost earning capacity even though
plaintiff was earning more than he had before his accident, and even though plaintiff
conceded that, in light of his high seniority, there was only a “small” probability he would
be bumped from his light-duty, high-paying position, and that, even if he were bumped,
“most of the positions” to which he might be bumped were also light-duty positions that
he could hold. Id. at 482-83. Nonetheless, expert testimony that plaintiff’s physical
restrictions “would preclude him from working” in certain positions in his union
(including his previous position) “and in many positions in the [outside] industrial
workforce,” was enough for the jury to find plaintiff’s “future earning capacity was
21
significantly diminished,” despite the apparently uncontroverted fact that plaintiff was
“fully able to obtain employment of a less strenuous nature.” Id. at 483-84. We found it
enough for Gorniak to show his “injuries hindered his ability to obtain other employment
if he wished,” and did not require evidence as to the types of job Gorniak was likely to
obtain, the availability and prevalence of such jobs in the local economy, or the wages
such jobs would pay. Id. at 484.4
In an earlier case, we reversed a district court decision setting aside jury-awarded
damages for loss of future earning power as “too speculative [due to] the complete
absence of evidentiary facts on which the jury could intelligently assess the monetary
difference between” plaintiff’s expected future earnings with or without his injury. Wiles
v. New York, Chicago & St. Louis R.R., 283 F.2d 328, 332 (3d Cir. 1960). Wiles, too,
was employed at the time of trial at a higher salary than he was earning when injured. A
medical expert testified that although Wiles’ disability was minor and would not preclude
his performing even heavy industrial tasks, he “would have difficulty in getting a job in
heavy industry elsewhere than with the Railroad” because “substantial ... scars” on his
back might make an employer leery. Id. at 331. We held that although Wiles had “not
4
Our only reference to such issues in Gorniak came in rejecting the
employer’s claim that Gorniak’s “work as a security guard on the side” showed his work
opportunities were not narrowed. Id. at 484 n.1. We cited Gorniak’s testimony that his
“hourly pay as a security guard was about half of that” at his regular job to refute the
employer’s claim, but made no suggestion that this represented what Gorniak could
expect to make if he lost his position.
22
yet suffered economic loss,” the chance that he might be “discharged or ... laid off” and
be unable to find other employment showed that his “economic horizons have been
limited by his injury.” Id. at 332. Here, too, we found it sufficient that Wiles showed
there were some jobs he might be unable to obtain (although he could perform them). We
did not require any evidence as to the types of job that he could hold, the availability and
prevalence of such jobs in the local economy, or the wages such jobs would pay. Far
from it -- we reversed the district court’s holding that the verdict was “too speculative”
due to the “complete absence” of evidence as to the “monetary difference” the injury
made to Wiles’s future earnings.
Nonetheless, the district court here granted Conrail’s motion for a directed verdict.
Citing Gorniak, Wiles, and Wilburn, the court held that plaintiffs must satisfy two
requirements in order to get to a jury as to this issue: “1) evidence of a permanent injury
or deformity, and 2) evidence that the injury/deformity either forced plaintiff to take a job
that paid less ... or ... evidence that the injury would make it much harder for plaintiff to
find another job.” AR 24. The district court found that Colyer had submitted sufficient
evidence on the first of these two prongs but not the second. It held that plaintiff needed
to “show that his disability would make it more difficult for him to find a job that pays as
much as his former carman position with defendant,” and had not done so. AR 25. The
court identified only two ways to make this showing: through expert testimony, as in
Wiles and Gorniak, or by testifying that he had “applied for other positions and [been]
23
told by the employers that he would never get the positions because of his disability,” as
in Wilburn. AR 25-26. The district court found that Colyer’s evidence would support
only a finding that he “cannot work in his former position, and the Third Circuit has never
held that this is sufficient.” AR 26.
The district court’s view that the evidence could show at most that Colyer’s injury
prevented him from performing his specific prior job, as opposed to a variety of positions
that required similar physical activities, is somewhat puzzling. First, Colyer’s medical
expert and treating physician both described physical limitations on his ability to perform
various tasks -- such as squatting, crawling, kneeling, climbing -- that are necessary not
only for the position of carman but also for numerous other physically demanding jobs.
Second, Colyer himself testified not only about how his physical limitations affected his
former job, but also that it was “kind of hard” for him to do “carpentry [or] masonry
work” and that he couldn’t do any “welding job” -- indeed, that he had withdrawn an
application for a job when he found it required welding. AR 346. He also testified that,
based on his “inquiries” about alternate employment, he thought other jobs that might be
available to him paid only $8 -$9 per hour. Id. Although the district court dismissed this
testimony as “vague,” the jury was entitled to consider its specificity (and the defendant’s
ability or inability to refute it) in weighing it and determining whether to accept it.
Given our preference for allowing juries to address this decision, and the type of
evidence that we have previously found to require sending this issue to the jury, we hold
24
that Colyer submitted sufficient evidence to send this issue to the jury. None of our cases
have required a plaintiff to prove that the jobs that would be available to him would pay
less than his prior position or than other jobs that he would be unable to perform due to
his disability. In each case, we found evidence that a plaintiff was foreclosed from
certain categories or types of jobs enough to show that his “economic prospects have been
narrowed,” Wilburn, 139 F.3d at 363 (emphasis supplied), and trusted the jury to assess
the various factors and determine how to value that narrowing of prospects.
The district court cited acknowledged dicta in Fashauer v. New Jersey Transit Rail
Operations, Inc., 57 F.3d 1269 (3d Cir. 1995) to support his view that Colyer’s evidence
was insufficient. In Fashauer, this Court held a jury instruction as to loss of future
earning capacity adequate, but noted that the plaintiff had submitted “no competen[t]
evidence supporting [such a] claim.” Id. at 1284. We pointed to the complete absence of
any “testimony that [plaintiff] would have difficulty obtaining work with a different
employer, or that jobs he could do after the injury were less lucrative than his railroad
job.” Id. at 1285. We also emphasized that “no witness even opined that Fashauer’s
injury limited his economic potential” and that “he essentially wanted the jury to take his
counsel’s word for it.” Id. (emphasis added). This case is distinguishable from Fashauer.
There was evidence here -- in the form of Colyer’s own testimony -- that he would have
difficulty finding other work, and that the jobs he would be likely to find are less
lucrative. The expert medical testimony as to the physical limitations Colyer suffered are
25
consistent with his testimony. The district court analysis seems to suggest that Colyer
could make the necessary showing only by presenting the precise evidence relied on in
Gorniak, Wiles, or Wilburn, but there is no basis for such a restriction. Indeed, the
Fashauer court explicitly rejected an “argument that evidence supporting lost earnings
capacity must come from a vocational expert.” 57 F.3d at 1284 (emphasis added).
III
For the reasons explained above, we affirm the district court as to its denial of
Colyer’s request for a new trial based on newly discovered evidence and its denial of his
claim that the jury verdict was against the weight of the evidence and the law. We
reverse the district court’s grant of Conrail’s motion for judgment as a matter of law as to
damages for lost future earning capacity and remand for a new trial on that issue.
26