The opinion of the court was delivered by: Thomas J. Rueter Chief Magistrate Judge
Presently before the court is defendant Greyhound Lines Inc.'s Motion In Limine To Preclude The Plaintiff From Presenting A Claim For Further Lost Wages (Doc. No. 43) and plaintiff's response thereto (Doc. No. 44). For the reasons that follow, defendant's Motion is denied in part and granted in part.
At the trial, plaintiff will present the following evidence. On October 1, 2006, plaintiff, Cynthia Hackett, was injured while she was a passenger on a Greyhound bus which collided with another Greyhound bus at the intersection of 8th and Cherry Streets in Philadelphia, Pennsylvania.
As the result of the accident, plaintiff sustained a torn rotator cuff of the left shoulder. Plaintiff's treating physician will testify that as a result of the injury, plaintiff will continue to experience occasional discomfort and fatigue involving her left shoulder especially with prolonged repetitive or exertional activities at or above the shoulder level. The medical expert will further opine that plaintiff will have permanent restrictions and limitations involving her left shoulder that will affect her ability to perform her job duties with the United States Postal Service ("USPS").
Plaintiff has been an employee of the USPS since 1993. For some of the years of her employment, Ms. Hackett worked as a mail handler which required her to load and unload mail from mail trucks parked at the dock. Her duties included lifting trays of mail weighing between thirty to forty pounds and loading the mail onto conveyor belts. Prior to the accident, she often would push and pull containers which were ten feet high and weighed sixty to seventy pounds.
At the time of the accident, plaintiff worked as an Acting Supervisor in the Time and Attendance office. This was a clerical position which did not require her to lift heavy objects. She will testify that on many days she worked overtime in the Automation Department after she completed her eight hour shift in the Time and Attendance office. While working overtime in the Automation Department, plaintiff was required to perform physical work lifting trays filled with mail weighing thirty to forty pounds and loading mail onto conveyor belts. Plaintiff further states that prior to the accident, she typically worked ten hour days, six days a week, receiving overtime pay.
Following the accident, plaintiff did not work from October 1, 2006 through October 22, 2006. When she returned to work, the USPS assigned her to light duty which required no overhead or heavy lifting. This accommodation complied with the restrictions and limitations prescribed by plaintiff's physician which required her to work permanently in a light duty capacity. Under the USPS Guidelines, plaintiff is now considered a light duty employee.*fn1
At the upcoming trial, plaintiff intends to present a claim for compensatory damages for loss of future earning capacity under two theories. First, because plaintiff is no longer able to do the physical aspects of loading and sorting mail, she is not eligible to work in the Automation Department and earn overtime compensation. Second, plaintiff is under an increased risk of losing her job under a new collective bargaining agreement to be negotiated between the USPS and the American Postal Workers' Union ("Union") to take effect in November, 2010. Because plaintiff's current job classification is "light duty status," it may lose its status as a non-lay off position that it now enjoys under the current collective bargaining agreement. Plaintiff argues that mail handlers who are not light duty employees will remain protected from lay-offs under any future contract, but she can no longer perform this job because of her injuries.
Defendant has filed this Motion to preclude plaintiff from presenting either of these two theories of lost future earning capacity on the grounds that both theories are too speculative to permit an award of damages under Pennsylvania law.
The parties agree that Pennsylvania law governs the law of damages in this case.
Under Pennsylvania law, a party may not present speculative damages to the jury. Blanche Road Corp. v. Bensalem Township, 57 F.3d 253, 265 (3d Cir.), cert. denied, 516 U.S. 915 (1995). Speculative damages are "[p]rospective or anticipated damages from the acts or facts constituting the present cause of action, but which depend upon future developments which are contingent, conjectural, or improbable." Black's Law Dictionary 392 (6th ed. 1990). "Damages are considered speculative if 'the uncertainty concerns the fact of damages, not the amount.'" Bensalem Township, 57 F.3d at 265 (quoting Carroll v. Philadelphia Housing Auth., 168 Pa. Commw. 275, 650 A.2d 1097 (Pa. Commw. Ct. 1994)). "Damages are considered remote or speculative only if there is uncertainty concerning the identification of the existence of damages rather than the ability to precisely calculate the amount or value of damages." Myers v. Robert Lewis Seigle, P.C., 751 A.2d 1182, 1184 (Pa. Super. Ct. 2000), appeal denied, 795 A.2d 978 (Pa. 2000). See also Grimes v. Northwest Airlines, Inc,, 1999 WL 527831, at *1 (E.D. Pa. July 22, 1999) ("Parties may not present speculative damages testimony to a jury."); Aircraft Guar. Corp. v. Strato-Lift, Inc., 991 F. Supp. 735, 739 (E.D. Pa. 1998) ("[A] jury may not award damages on ...