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May 12, 1992



The opinion of the court was delivered by: EDWARD A. BOBRICK


 This matter is before the court on plaintiff's motion for a new trial and the court's own initiative to consider a new trial. We find that the jury verdict as to damages (in the amount of $ 60,000) awarded plaintiff to be against the clear weight of the evidence resulting in substantial injustice, and as such a new trial will be granted on that issue. Hardin v. Paradigm, No. 90-2863, sl. op. at 19 (7th Cir. May 1, 1992).

 At the outset we recognize that this case does not involve a verdict, rendered by a jury, that could conceivably be considered as a compromise verdict wherein jurors may have resolved their differences on the issue of liability by finding a small amount of damages to be awarded to the plaintiff. In this case, liability went virtually uncontested. Causation, likewise, was uncontested by any creditable evidence, and in fact was established by significant evidence.

 On the issue of liability, there was no strong contest offered by the defendant. This apparently was so since the plaintiff established a rather strong case of employer liability, albeit his need for only a slight showing of negligence under the Federal Employers Liability Act, 45 U.S.C. § 31-60. Harbin v. Burlington Northern RR Co., 921 F.2d 129 (7th Cir. 1990).

 The facts in this case were rather clear and straight forward. The defendant, without notice or Warning, placed an obstruction, i.e., a pallet of rail car brake shoes, across the pathway where workers, including the plaintiff, regularly walked to their work station. On December 10, 1987, plaintiff's work shift required him to report for work during the very dark of night. The pathway that he would traverse, where the obstruction blocked safe transit, was unlit and in pitch dark, making the obstruction virtually invisible to the naked eye. No warning lights, barriers, or signs were posted. By reason of these described conditions, each of the first three employees reporting to work on the day of the accident, the plaintiff being the second, tripped or fell over the obstruction placed across the pathway. Unfortunately for plaintiff, as he fell across the obstruction, he twisted his upper torso in such a way as to cause a severe injury to his lower back. This injury was later diagnosed as a herniated disc.

 As to the factual issue of causation, the evidence showed that, as plaintiff fell, he twisted his back jamming his lunchbox into his groin. He felt pain the day of the accident and into the next day, but he attributed that pain to the general effects of the fall. The weekend following the day of the accident found plaintiff in considerably more pain, requiring him to seek medical attention. That weekend he contacted and obtained an appointment with Dr. Thomas Townsend, a chiropractor. The earliest available date Dr. Townsend could see the plaintiff was December 15, 1987 (five days after the accident). Dr. Townsend testified that plaintiff, on December 15, 1987, presented with clear signs of a lower back neurologic defect, i.e. possible herniated disc in the lower lumbar area. Dr. Townsend became quite concerned about plaintiff's condition once he made his diagnosis of a possible herniated disc. To insure that he did not exacerbate the plaintiff's condition, he purposely refrained from performing his usual therapy of spinal manipulation. He instead referred plaintiff to a neurosurgeon, a Dr. Atkinson, for confirmation of his diagnosis.

 Dr. Atkinson, with the use of a Magnetic Resonance Imaging (MAI), diagnosed a bulging or herniated disc at lumbar vertebrae 4 and 5 with significant neurologic symptoms. Plaintiff's own neurosurgeon, Dr. John Stamelos, later confirmed the condition and performed a partial diskectomy and laminectomy on the plaintiff's spine. Dr. Stamelos' testimony, accompanied by the various x-rays (MRI), described the herniation of the disc in plaintiff's lumbar spine, concluding that the herniation was caused by the fall on December 10, 1987.

 Little creditable evidence was introduced to counter the fact that the fall by the plaintiff, on December 10, 1987, resulted in his serious back injury. Defendant, in a vain attempt to meet the issue of causation, did bring forward its expert witness, a Dr. Leonard Smith, who opined on the issue of causation. Dr. Smith concluded that plaintiff did not injure his back on December 10, 1987, but did so some six months or more later. Defendant put to Dr. Smith a hypothetical question specifically containing, as its predicate fact, the proposition that plaintiff did not seek medical attention for a period of approximately six months after his accident -- proof of this was nowhere to be found in this case. Defendant's expert witness was not informed of the uncontroverted fact that within two or three days of the accident, plaintiff, due to his persistent and severe pain, sought an appointment with Dr. Townsend and was seen within five days of the accident. Thus, Dr. Smith's opinion (defendant's evidence on causation) that plaintiff's herniation was caused at least six months after the accident was clearly based on false information and facts not adduced at trial and, as a matter of law, was of no material value to the issue of causation. It appears the jury disregarded defendant's expert evidence since they found in favor of plaintiff on this issue. We do note that Dr. Fisher, the defendant occupational physician, while equivocal as to the presence of the herniation, gave credence to the fact that the plaintiff had suffered a significant injury on December 10, 1987, and was experiencing considerable pain and limitation of movement.

 By reason of the very strong, uncontested, and compelling evidence relating to the negligence of the defendant, and the strong and conclusive factual showing that defendant's negligence caused plaintiff's injury, we find the jury's verdict in favor of the plaintiff on these issues well-founded and supported by sufficient evidence. Additionally, the strength of the evidence on these threshold issues was such that we can only conclude the later damage award can neither be perceived as one of sympathy or compassion, nor one which was inextricably interwoven into the issue of liability. As such, in the context of the Fed. R. Civ. P. 59 motion we need address only that part of the verdict dealing with damages. Phav v. Trueblood, Inc., 915 F.2d 764, 767 (1st Cir. 1990); Mekdeci By and Through Mekdeci v. Merril Nat. Labs, 711 F.2d 1510, 1513 (11th Cir. 1983).

 We find the jury's verdict as to damages, unlike their finding for the plaintiff on the issue of defendant's negligence, and whether that negligence contributed to plaintiff's injury, to be against the clear weight of the evidence and by reason of this it must be set aside in order to achieve substantial justice in this case. The jury award of $ 60,000 as damages bore no reasonable relationship to the loss suffered by the plaintiff.

 The plaintiff is an individual who has less than a high school education. He is 37 years of age. He has, throughout most of his working life, been engaged in heavy arduous work. His ability to earn an income was dependant on his capacity to perform arduous labor of a skilled nature. The evidence established (without any opposition by defendant) that the plaintiff, due to his injury, would no longer be able to engage in arduous skilled labor, a high-paid vocation, and as such his earning capacity was significantly impaired. He could no longer work for the defendant as he no longer was capable of performing the heavy lifting associated with his required job duties as a working foreman of a bridge and structure building crew. The plaintiff was earning approximately $ 15.00 per hour with significant benefits and significant overtime. With his limited education and a history of arduous work, the evidence established that he would no longer be able to earn those same wages as he did prior to his injury; he instead would be relegated to entry level jobs paying not much more then the minimum wage. The evidence was uncontroverted that the injury caused plaintiff by defendant's negligence resulted in a permanent and serious disability. All credible medical testimony established that fact.

 As to plaintiff's damages, he lost approximately $ 43,000 in actual earnings due to his inability to work during his convalescence from back surgery. He suffered a significant impairment to his future earning ability. The plaintiff correctly submitted uncontested evidence of the present value of future lost earnings. Monessen Southwestern Ry. Co. v. Morgan, 108 S. Ct. 1837, 1844, 1845 (1988). His economic expert witness, Dr. Leroy Grossman, applying appropriate actuary data to plaintiff's uncontested post-injury residual functional work capacity, opined that plaintiff would lose anywhere from $ 434,000 to $ 751,000 in future earnings, depending on how successful he was in getting a job that paid more then the minimum wage rate. Additionally, plaintiff now experiences significant back and leg pain, limitation of motion and is required to use pain medication and pain control devices. His pain, and his need for pain control medication, intrudes to a substantial degree in plaintiff's life style. He has a permanent medical disability.

 Thus, we find plaintiff introduced evidence on four types of damages: (1) lost past earnings; (2) lost future earnings; (3) pain and suffering, and (4) disability. The undisputed evidence essentially established: (1) $ 43,000 in lost earnings; (2) approximately $ 600,000 in lost future earnings; (3) pain that prevents plaintiff from continuing in certain long-held personal and family hobbies and activities, as well as continuing in his former ...

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