was awarded damages for loss of income based on a projected after-tax income of eighty percent of plaintiff's projected gross income. In determining the amount of income that plaintiff would have paid in taxes, however, railroad retirement taxes were not taken into account. Defendant claims that this was error, and that with the inclusion of railroad retirement taxes, plaintiff's projected gross income should have been reduced by thirty percent, rather than by twenty percent.
At trial, plaintiff's counsel represented to the court that the value of the benefits package that plaintiff lost after his injury was approximately $ 13,000 per year if one took into account the value of his eventual retirement pension, or $ 4,700 if the value of the pension was excluded. Defendant stipulated to the $ 4,700 figure for the present value of plaintiff's benefits, but refused to consider inclusion of the amount of plaintiff's lost retirement benefits. Based on this refusal, I determined that the $ 4,700 figure would be used to represent the value of plaintiff's benefits, and that no deduction would be allowed from plaintiff's gross income for railroad retirement taxes.
Defendant cites Liepelt in support of its contention that my decision was erroneous. Liepelt does not support defendant's position, however: that case involved only a deduction for income taxes, a deduction that was applied in the present case. See Liepelt, 444 U.S. at 493-94. Defendant also cites, by way of analogy, two Fifth Circuit cases in which Social Security taxes were deducted from the plaintiff's gross income in order to calculate damages. See Rachal v. Ingram Corp., 795 F.2d 1210, 1218 (5th Cir. 1986); Madore v. Ingram Tank Ships, Inc., 732 F.2d 475, 479 (5th Cir. 1984).
I do not find the Social Security cases compelling, although not for the reason cited by plaintiff. Plaintiff argues that informing the jury of railroad retirement taxes would implicitly inform them of the existence of railroad pension benefits, and that evidence of such benefits is not admissible in a jury trial. See Eichel v. New York Central R.R., 375 U.S. 253, 254-55, 11 L. Ed. 2d 307, 84 S. Ct. 316 (1963). Eichel arose on facts readily distinguishable from those in the present case, however. There, the plaintiff was actually receiving a pension of $ 190 per month; the Court held that evidence of the pension was inadmissible because of the danger that the jury would improperly consider the pension in mitigation of the plaintiff's damages. See id. Here, in contrast, plaintiff describes the pension as a benefit that plaintiff has lost as a result of his accident. Under such circumstances, the jury could not improperly reduce its award to plaintiff on the basis of the pension; if anything, the loss of the pension would be considered an element of damages to which plaintiff would be entitled.
Although Eichel does not provide plaintiff with the support he desires, I nevertheless conclude that, under the circumstances presented in this case, plaintiff's income should not be reduced by the amount of railroad retirement taxes that he would have been required to pay had he not been injured and continued working. Railroad retirement taxes are paid into a fund from which railroad retirement benefits are paid out. See 45 U.S.C. § 231n(a). Had plaintiff continued working until the age of sixty-two,
and had plaintiff remained in defendant's employ during that time, he would have been eligible for an annuity upon his retirement, paid from the fund into which his railroad retirement taxes had been paid.
See 45 U.S.C. § 231a(a)(1)(ii). It is undisputed that plaintiff is entitled to recover the value of lost future fringe benefits. Cf. Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 534, 76 L. Ed. 2d 768, 103 S. Ct. 2541 & n.12 (1984) (lost fringe benefits "should be included in an ideal evaluation of the worker's loss;" these may include, inter alia, retirement and pension plans). It is likewise clear that the $ 4,700 figure, which the parties agreed represented the value of plaintiff's benefits package, did not include the contingent value of plaintiff's pension benefits. See Trial transcript, April 22, 1991, at 83-85. The value that the jury placed on plaintiff's lost future wages and benefits, therefore, did not include the value of his lost railroad retirement pension. It would be inappropriate to deduct from plaintiff's lost salary taxes that, in effect, represented plaintiff's contribution toward a pension without including, as an item of damages, the value of that pension. Because defendant did not consent to inclusion of the value of the pension as an item of damages, it was not error to refuse to reduce plaintiff's lost wages by the amounts he would have had to pay in railroad retirement taxes.
2. Contributory Negligence
At trial, I denied defendant's request for an instruction on contributory negligence, concluding that defendant had failed to present sufficient evidence to allow a reasonable jury to conclude that plaintiff had been contributorily negligent. Defendant contends that this was error.
Plaintiff testified at trial that when he was told to empty a trash barrel by himself, he would typically check its contents before lifting it, and if it contained liquid he would empty the barrel by hand rather than lifting it into the dumpster. Plaintiff further testified that at the time of the accident he had been asked by his supervisor, James Warden, to assist Warden in lifting a barrel, and that plaintiff did not himself check the contents of that barrel before lifting it because he assumed Warden had checked.
Defendant contends that plaintiff's failure, when asked by his supervisor to help empty the barrel, to follow the procedure that plaintiff followed when he was placed in charge of emptying a barrel constituted evidence of contributory negligence sufficient to support a jury instruction. Defendant's position, however, fails to take into account the circumstances under which plaintiff was injured. An employee may rely on his superior to perform acts that the employee reasonably expects the superior to perform. Cf. Knierim v. Erie Lackawanna R.R. Co., 424 F.2d 745, 747 (2d Cir. 1970) (brakemen on train could reasonably expect conductor, their superior, to make sure that train had proper clearance; failure of brakemen to check clearance was not contributory negligence as a matter of law). The fact that, if plaintiff had been acting alone, he would have checked the contents of the barrel before trying to lift it does not convert his failure to check the contents in the face of a request for aid from his supervisor into contributory negligence. Defendant having introduced no further evidence that would suggest contributory negligence, it was proper to refuse to instruct the jury on that point.
Of the arguments set forth in defendant's motion for a new trial, I have determined that two have merit: it appears that the jury's award of lost past compensation was not based on the evidence presented at trial, and that the jury's award of damages for pain and suffering was grossly excessive and not supported by the evidence. In cases where the only error found on a post-trial motion is an excessively large verdict, the Third Circuit has approved the device of ordering a remittitur as an alternative to a new trial. That alternative is particularly appropriate here, given the protracted proceedings that have already occurred. Accordingly I will deny defendant's motion for a new trial, with the condition that plaintiff remit $ 1,466,000 of the jury's award and accept a judgment in the amount of $ 1,101,259.60.
An appropriate order follows.
[EDITOR'S NOTE: The follow court provided text does not appear at this cite in 791 F. Supp. 477]
ORDER - April 22, 1992, Filed; April 23, 1992, Entered
For the reasons given in the accompanying memorandum, it is hereby ORDERED and DIRECTED that defendant's motion for a new trial is DENIED, on the condition that plaintiff remit $ 1,466,000, leaving a judgment of $ 1,101,259.60. If plaintiff refuses to accept the above-ordered remittitur within twenty (20) days of the date of this order, defendant's motion will be granted and a new trial limited to the issue of damages will be ordered.
APRIL 15, 1992
Louis H. Pollak