Norfolk Southern Railway Co. v. Jones

Andrews, Judge,

dissenting.

I respectfully dissent because the $800,000 award for past and future pain and suffering is excessive and can only be explained logically as having resulted from an improper cause.

The majority mischaracterizes the evidence of Jones’ future prospects. Although the evidence showed that Jones suffered pain after his injury and consequent to his two surgical procedures, an orthopedic surgeon evaluated Jones’ permanent disability at 20 percent. Medical records from before the laminectomy indicated that Jones complained of pain while playing basketball and volleyball. Records from after the laminectomy show that the only abnormality observed was some limitation in Jones’ ability to raise his leg while straight, characterized as not severe. In addition, a consulting physician found nothing objective to substantiate Jones’ complaints of pain. It is undisputed that Jones can perform at least sedentary to light work. Jones did well in school, attended college on a full football scholarship, finished all his course work, and majored in business administration, but did not graduate because he failed the Regent’s test the only time he took it. Although he presently works without pay as a clerk for his wife’s automotive body shop, the employee who formerly held this job was paid $21,000 per year. The majority’s conclusion that Jones’ only advantage was his (now lost) unique physical prowess belittles his other talents. Although, undoubtedly, Jones is entitled to some compensation for past and future pain and suffering, the evidence does not support an award for the amount he received.

I believe Jones’ counsel’s attempts to vilify Norfolk Southern as an entity unconcerned with its employees’ well-being, dignity, or sense of self-worth account for this disparity between the evidence and the award. In closing, counsel argued “these people haven’t learned a lesson. Nothing has been taught to them about how to run a railroad or how to treat human beings.” Later, he stated “what it boils down to is Andra just doesn’t matter to them.” In the context of greasing the coupler carriers which were at issue in the unsuccessful Safety Appliances Act claim, counsel also argued that “they’ve [Norfolk Southern] got to hear it from you.”

Decided December 5, 1995 Reconsideration denied December 20, 1995 Branch, Pike & Ganz, Thomas B. Branch III, Tanya M. Lawson, for appellant. Blackwood & Matthews, B. Randall Blackwood, John D. Steel, for appellee.

The Supreme Court found that similar pejorative arguments in a FELA case suggested that the verdict was rendered at least in part with a punitive intent. Central of Ga. R. Co. v. Swindle, 260 Ga. 685, 687 (398 SE2d 365) (1990). Because punitive damages are not recoverable in FELA cases, counsel’s arguments were improper. Id.