CSX Transportation, Inc. v. Darling , 189 Ga. App. 719 ( 1988 )

Beasley, Judge, dissenting.

Although I concur in Divisions 2, 3, and 4, I respectfully dissent because the award for pain and suffering must be deemed excessive under FELA law.

The humerus bone of the arm between shoulder and elbow was broken in four places in a comminuted fracture, meaning that the breaks were jagged rather than clean. The injury was severe and Darling was hospitalized for three days. Surgery was not required, but his arm was casted. He was then followed for a year by Dr. Waldrop, the orthopedic surgeon who had treated him at the hospital. The bone completely healed, but Darling continued to have pain in his shoulder and elbow, as well as some “popping” in his joints.

Associated with an injury such as the one Darling suffered is extensive soft tissue damage which will not be evident on X-rays. Dr. Waldrop saw Darling again in November 1986, in preparation for his deposition in this case. Darling still complained of pain and some numbness down the inside of his arm and in his fourth and fifth fingers. Dr. Waldrop opined that this could be caused by scar tissue or pressure on a nerve. In his opinion, Darling suffered a 10 percent permanent disability in his upper arm which would be 1 percent to 4 percent disability of the whole man.

Darling saw a second doctor in 1986 and received three cortisone shots in his elbow and shoulder for pain. That doctor’s opinion was that Darling had bursitis and would continue to have residual pain. The bursitis could have been the result of the trauma.

In preparation for trial, Darling was seen by Dr. Wofford, a specialist in the treatment of chronic pain, in 1984. He underwent a thermogram, a heat sensitive photograph which shows more than normal heat being emitted from painful areas. In his opinion, Darling was experiencing pain in his left arm and shoulder.

Darling missed six months of work during his recovery. After his return to work as a switchman, his arm was painful but this did not prevent him from doing his job. Co-workers stated that he would rub his arm from time to time and, when the weather was cold, would try to get his arm “easy” by warming it near the stove. He worked as a switchman on a through freight, which required less switching than a local or a yard job. His salary, due to raises, was near the $50,000 per year mark in 1985.

According to both Darling and his wife, the pain interfered with his sleep and he was unable to sleep more than two or three hours at a stretch. Also, he became irritable and was unable to help his son with his motorcycle racing or perform household tasks as he had done before the injury.

Giving Darling the benefit of the highest figures, his actual damages over his life were $193,597. The jury was required to reduce this figure to $183,917, its present value using a 5 percent reduction factor. The only other compensable element was pain and suffering. The verdict and judgment were for $800,000.

Having carefully examined the record of the evidence and argument which was submitted the jury, and having given the plaintiff the benefit of all doubts as to the facts, and applying the federal standard, the award of over $616,000 for pain and suffering exceeds that inexact amount which would not carry the irresistible inference that an improper cause prompted it. Whether the cause was prejudice, sympathy, humaneness, punishment, a misunderstanding of the components of compensation, or something else, the minimum amount attributable to the only non-special element of damages is excessive to the degree that it shocks the judicial conscience as a matter of law.

I recognize that the age-old test is subjective, but it nevertheless is a test of law and appeals to the conscience of the court and not to the private and personal consciences of the individuals who serve as judges. I also recognize that as an appellate court, the question is whether the trial court’s conscience should have been shocked as a matter of law. Otherwise the denial of a new trial was not an abuse of discretion. See Cullen v. Timm, 184 Ga. App. 80, 83 (2) (360 SE2d 745) (1987); Great Atlantic &c. Co. v. Turner, 180 Ga. App. 533, 536 (349 SE2d 537) (special concurrence) (1986).

Although there are no specific criteria or factors in law by which the court’s conscience is governed, those objective facts considered in other cases give guidance to a measurement. Nairn v. Nat. R. R. Passenger Corp., 837 F2d 565, 568 (2d Cir. 1988).

While no case has been found involving exactly the circumstances of plaintiff here, there are several comparable ones. Taylor, supra, involved a railroad hostler helper, one who rides the engine and lines up switches, who, afraid that a collision was about to occur, jumped off the engine onto the ground, a distance of three feet. Although she felt no immediate pain, she thereafter suffered “dysfunctional low back pattern” and bursitis in her heel. She missed 180 days of work due to her condition, with lost wages of $14,000. She was able to continue working for the railroad. She testified that she was no longer able to perform her normal life activities including bowling, cutting grass, swimming, etc., due to the pain. This court concluded that compensatory damages in the amount of $250,000 were excessive.

In Seaboard C. L. R. v. Towns, 156 Ga. App. 24 (274 SE2d 74) (1980), a railroad employee was injured when the platform on which he was standing gave way. He suffered a traumatized disc in his spine and would never again be able to do the heavy type work he had previously been doing for the railroad. He was unable to continue working for it. He suffered continual back pain, pain and numbness in his legs and arms, and periodic loss of equilibrium. This court upheld a verdict of $220,000 which included $3,000 in medicals.

In Central of Ga. R. Co. v. Nash, 150 Ga. App. 68 (256 SE2d 619) (1979), 41-year-old Nash suffered an injury to his knee when a defective grab iron came off in his hand causing him to fall. As a result, he had to have surgery twice on the knee, during which his kneecap was removed. He suffered “excruciating” pain, had to undergo substantial drug therapy, and had regained only 80 percent of the strength in his knee two years after the accident. At times, he was seen to have tears in his eyes as he attempted to put weight on his injured leg. As a result of the injury, arthritis had developed in his knee, which made a grinding noise as he walked. He had increased susceptibility to severe arthritis because of his injury and a greater chance than normal that the knee would wear out completely and the entire joint would have to be removed. Medical expenses, which would continue, were $2,779.10 at the time of trial, and wages lost as a result of his ten-month absence were $12,726.58. The verdict of $300,000 was upheld here after a motion for new trial was denied.

A verdict of $600,000 was upheld in Ball v. Burlington Northern R. Co., 672 SW2d 358 (Mo. Ct. of App. 1984), a FELA case in which a painter for the railroad was constantly exposed to toluene diisocyanate, which the railroad knew or should have known caused serious lung damage. As a result of his exposure, Ball, who had no lung problems prior to working for the railroad, developed severe lung problems which were permanent and disabling. Due to lack of oxygen, his heart was also working harder than normal. Because Ball was permanently totally disabled, would incur substantial medical expenses in the future, and was in constant pain and suffering, the court upheld an award of $600,000.

In Nairn v. Nat. Passenger Corp., supra, an award of $765,000 for a back injury was upheld by the trial court, which denied the railroad’s motion for new trial, but then overturned as excessive by the appellate court under FELA.

Nairn was a foreman of a construction and repair crew. He was 33 years old. While attempting to lift a piece of heavy equipment embedded in ice, he injured his back. Although he continued working, the pain worsened and he sought medical attention. He was diagnosed as suffering from a muscular/ligament strain, and, after reinjuring his back on the job, as having some disc degeneration. He had a 15% permanent back function impairment. He was advised not to do heavy work. As a result, he quit working for the railroad and took a job paying less, with no benefits. He experienced a great deal of pain, could no longer engage in sports, roughhouse with his children, or perform his previous household chores such as chopping wood, shoveling snow, etc. He had become “distant” since his injury and was depressed.

The value of Nairn’s lost wages, his only special damages, was found to be $350,000, leaving a $400,000 award for pain and suffering.

The Second Circuit held that: “[W]e do not mean to belittle Nairn’s pain and disappointment at no longer being the active, athletic man he once was or to minimize the very real impact of the injury on Nairn’s life and lifestyle. We conclude, however, that an award for pain and suffering of at least $400,000 for a 15% functional impairment is one that ‘shocks’ the judicial conscience.’ ” Id., at 568.

In Darling’s case, without belittling his pain and suffering in any way, the facts are that he suffered only a 4 percent disability maximum, was able to work as a railroad switchman, and was unlikely to incur future medical expenses due to the injury, although he might receive pain counseling. The pain which he suffers is intermittent and, although there are changes in his daily life, they are not comprehensive. The $616,000 solely for pain and suffering was so excessive that I am compelled to conclude that a new trial on the issue of damages is required. Cf. McKinney & Co. v. Lawson, 257 Ga. 222 (357 SE2d 786) (1987), which applies the state law on excessiveness.

I am authorized to state that Chief Judge Birdsong joins in this dissent.

Decided December 5, 1988 — Rehearing denied December 20, 1988 Alston & Bird, James H. Senterfitt, Elizabeth A. Price, for appellant. Billy E. Moore, for appellee.