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FINLEY v. AMTRAK

March 23, 1998

EDWIN FINLEY, Plaintiff,
v.
NATIONAL RAILROAD PASSENGER CORPORATION, a/k/a AMTRAK, Defendant.



The opinion of the court was delivered by: REED

MEMORANDUM

 Reed, J.

 March 23, 1998

 After the opening statement by counsel for the defendant, National Railroad Passenger Corporation, a/k/a Amtrak ("Amtrak"), plaintiff Edwin Finley ("Finley") made this oral motion for a mistrial based on references defense counsel made to evidence that Finley told an examining doctor that he intended to apply for a disability pension and that Finley in fact has retired and has applied for and is receiving a disability pension, implying that getting his pension was Finley's motivation for establishing his disability. Based on the reasons given below, the motion for mistrial was granted in an Order read from the bench on March 18, 1998. This memorandum serves as an explanation of the reasoning of the Court in granting the motion.

 I. BACKGROUND

 This is a case under the Federal Employers' Liability Act ("FELA"). Finley, a conductor for Amtrak, alleges that he was injured when a passenger, Thomas Haggerty ("Haggerty"), threw his knapsack at the conductor's window because he was frustrated at not being allowed to board a train as it was leaving the station, knocking the window out of its grommets. The window hit Finley in the face and knocked him to the ground; he alleges cognitive and psychological injury from this event. Amtrak argues that it was not negligent in that any injury suffered by Finley was due to the independent criminal assault by Haggerty and alternatively, that Finley suffered no injury from this accident. In addition, Amtrak contends that Finley was already suffering from degenerative arthritis which affected his hips, neck, and back before this accident occurred. Amtrak has joined Haggerty as a third party defendant.

 This case was called for trial on Monday, March 16, 1998 and a jury was selected. On Tuesday, March 17, 1998, each counsel gave his opening statement. After counsel for Amtrak gave his opening statement and the jury had been excused for a morning recess, Finley objected to the references to Finley's disability pension in the opening statement of Amtrak and made a motion for a mistrial.

 The Court subsequently allowed both sides to submit case law on this issue and heard oral argument from both counsel. *fn1" Finley argued that evidence of a plaintiff's pension in a FELA case was inadmissible because its prejudicial effect outweighed the probative value and that the introduction of this information in the opening statement was grounds for a mistrial. Amtrak submitted argument and a memo to the Court explaining that the reference to Finley's pension was not offered as evidence to mitigate damages or as evidence of malingering on the part of Finley, but that it was "admissible because the plaintiff made an admission in a vocational evaluation which is relevant to state of mind and as an explanation of why he would make a claim of mental impairment and to show he in fact had none." The defense claimed that Finley expressed his motivation to feign psychiatric disability in order to obtain disability pension benefits to his examining psychologist, Dr. Primavera, which was evidenced in a report dated October 23, 1995. The portion of the report of Dr. Primavera that Amtrak wanted to introduce into evidence and to which counsel referred in his opening statement read as follows: "[Finley] is currently disabled from all types of work and he is considering applying for disability retirement."

 On March 18, 1998, after consideration of the case law and oral arguments of the parties as well as a review of the video transcript of the opening statement of Amtrak, this Court granted the motion for a mistrial.

 The relevant portions of Amtrak's opening statement were as follows:

 
But [Finley] also had twenty-eight years in on the railroad. . . and he was up to twenty-eight years and in two more years he gets a full pension regardless of his age, but he can't get the full pension until he's sixty-two. So here's a man almost qualified for a full pension, but he has to wait to sixty-two and his hips are starting to hurt him.

 After informing the jury that an examining doctor advised Finley that he was able to return to work, defense counsel continued:

 
But he doesn't go back to work. He doesn't go back to work because he knows and he starts talking about, "I can get my pension, I can be disabled, and I can get my full pension without working to sixty-two right now," and he discovers this and starts ruminating about this and he tells somebody in October of 1995, "I can get my pension if I can be disabled." And in fact that's what he does. He gets a pension. He gets his full pension, not working to sixty-two, but retiring at that point.

 Defense counsel informed the jury that Finley's counsel recommended that he have a psychiatric evaluation, but that the first examining psychiatrist did ...


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