On Appeal From the United States District Court For the Eastern District of Pennsylvania, D.C. Civil Action No. 86-5068.
Stapleton, Mansmann, and Garth, Circuit Judges.
STAPLETON, Circuit Judge:
Plaintiff Joseph P. Gorniak is an employee of defendant National Railroad Passenger Corporation, better known as Amtrak. On February 11, 1985, Gorniak was employed as a materials handler at Amtrak's Cornwell Heights, Pennsylvania facility. That day he injured his right shoulder while lifting a cylinder weighing over 325 pounds.
Gorniak filed suit against Amtrak under the Federal Employer's Liability Act ("FELA"), 45 U.S.C. § 51 et. seq., alleging that Amtrak's negligence caused his injury. A jury returned a verdict for plaintiff in the sum of $104,000, which was reduced by 10% because of Gorniak's contributory negligence. Thirty-five thousand dollars of the verdict was for Gorniak's loss of future earning capacity.
The trial court molded the verdict, and entered a judgment for plaintiff in the amount of $89,063.52. This judgment reflected not only the offset for plaintiff's contributory negligence, but also the court's reduction of the $35,000 impaired earning capacity award to a present value of $29,981.69. After post-trial motions were denied, Amtrak timely appealed to this court, raising only two issues. First, Amtrak alleges that there was insufficient evidence to allow a jury to consider awarding Gorniak damages for loss of future earning capacity. Second, Amtrak insists that even if the jury was properly permitted to make such an award, the trial court erred by finding that Gorniak would likely retire at age 65 or before for purposes of reducing that award to present value.
The evidence relevant to Gorniak's claim for loss of future earning power is relatively straight-forward. Because of his shoulder injury Gorniak underwent surgery and a lengthy process of physical therapy. While the surgery and therapy were successful to a degree, two orthopedic surgeons testified that the injury had resulted in a permanent disability of Gorniak's right shoulder which required him to refrain from activities involving heavy lifting or overhead extensions of his right arm. Specifically, Dr. Ruth testified that Gorniak should permanently avoid activities requiring him to lift more than 20 to 30 pounds or involving repeated overhead extensions. App. 189-90. Dr. Fenlin stated that Gorniak had been instructed to never lift more than 50 pounds to chest level, or more than 25 pounds above his head. App. at 448.
After his injury, Gorniak was first assigned by Amtrak to a position as a ticket clerk, a position which paid seven dollars a day more than his pre-injury position as a materials handler. Gorniak acknowledges that the shoulder disability does not hinder his ability to work as a ticket clerk. Moreover, Gorniak is able to work in certain other positions within his craft at Amtrak, as a reservations clerk for example, and has worked as a security guard on the side since his injury.
However, Gorniak testified that the collective bargaining agreement between his union and Amtrak provides for a seniority system which allows more senior employees, in the event of a reduction in force, to bump their junior colleagues from positions they hold. As a result, if Amtrak were to cut back on its force of light-duty workers, Gorniak could be displaced from his present position. If this were to occur, the only position available within his craft at Amtrak might be the position he held at the time of his injury, that of a materials handler.
Gorniak testified that he could not work as a materials handler at Amtrak since the railroad would not permit him to do so while adhering to the lifting restrictions imposed by his doctors. He did admit, however, that the probability that he would be bumped out of his current light-duty position was small since he was the 101st most senior member of the 1200 member union, and that most of the positions filled by members of his union involved working on a computer. Nevertheless, Gorniak also testified that he had been bumped from his position as a ticket clerk by an Amtrak employee who ranked 76th in seniority, and was presently holding another light-duty clerk's job.
Amtrak argues that the foregoing evidence provides no reasonable basis upon which to conclude that Gorniak suffered a loss of earning capacity as a result of his shoulder injury. Though Gorniak cannot return to a position such as he held at the time of his injury, he is fully able to obtain employment of a less strenuous nature. Indeed, Gorniak is presently employed in a secure manner in such a position with Amtrak, and makes more money per day than he did prior to his injury; further, Gorniak has worked, without discomfort, as a security guard subsequent to his shoulder injury. In sum, Amtrak says no rational trier of fact could have concluded that Gorniak's economic horizons had narrowed as a result of his shoulder disability.
In support of this conclusion, Amtrak cites a recent decision of the Court of Appeals for the Second Circuit, DeChico v. Metro-North Commuter R.R., 758 F.2d 856 (2d Cir. 1985). In DeChico the court upheld a district court's refusal to allow a jury to consider a FELA plaintiff's lost earning capacity claim. The plaintiff, a railroad shop superintendent, had returned to the same position he held prior to his knee injury and was earning a higher wage. At trial, the plaintiff testified that he expected to continue with the railroad in another capacity if he lost his current position. The Court of Appeals held that any suggestion that plaintiff would be forced to leave the railroad's employ was too speculative to support our award for loss of future earning capacity, and that the district court properly refused to charge the jury on that theory. Id. at 861.
DeChico, however, expresses a narrower view of a lost earnings capacity claim than was adopted by this Court in Wiles v. New York, Chicago, and St. Louis Railroad Co., 283 F.2d 328 (3d Cir.) cert. denied, 364 U.S. 900, 81 S. Ct. 232, 5 L. Ed. 2d 193 (1960). Wiles was an appeal from a 1959 FELA judgment by a plaintiff whose $20,000 jury award for loss of earning capacity had been set aside by the district court. The plaintiff Wiles was injured when the jack he was using to lift a rail car slipped and threw him to the ground. As a result, his back was seriously injured and he underwent three operations, resulting in permanent scarring and a minor deformity of the back.
At trial, an expert medical witness testified that Wiles would have difficulty obtaining employment in heavy industry other than with the defendant railroad because no employer would wish to hire him after discovering, by way of a routine pre-employment physical, his history of back problems. The expert did not, however, testify that Wiles was physically unable to continue employment in heavy industry. Id. at 331, n. 3. Indeed, at the time of trial, plaintiff was employed by the defendant railroad as a car repairman at a higher salary than he was paid at the time of the accident.
After submitting an interrogatory on the issue of lost earning capacity to the jury and receiving a jury award of $20,000 for Wiles, the district court set aside the award on the ground that it was based on speculation. On appeal this court reversed and reinstated the verdict. We noted that Wiles' employment in a higher paying position did not preclude a recovery for loss of earning capacity, Id. at 332; see also Moore v. Chesapeake & Ohio Ry, 649 F.2d 1004, 1011 (4th Cir. 1981); but was merely one of several factors for the jury to consider in deciding whether Wiles' economic prospects had been narrowed by his injury. 283 F.2d at 332. The jury was also entitled to consider whether Wiles might be laid off or discharged in the future and whether he was "chained to his present job in a kind of economic servitude" because other employers were unlikely to risk hiring him. Id.
We held that the presence of these and other factors provided a sufficient basis upon which the jury could have decided to compensate plaintiff for loss of future earning power; moreover, we concluded that the amount of lost earning capacity damages awarded was no more a result of speculation than a typical pain and suffering award. After all, "[since] none of us is capable of foreseeing the future with ...