Wayne Lindsey Robbins, Jr. of BNSF Railway Law Department, Fort Worth, Texas, and Michael W. Thrall, Angel A. West, and Matthew R. Eslick of Nyemaster Goode, P.C., Des Moines, for appellant.
Mark E. Weinhardt of Weinhardt & Logan, P.C., Des Moines, and Rick D. Holtsclaw and Bradford C. Kendall of Holtsclaw & Kendall, L.C., Kansas City, Missouri, for appellee.
This case involves a long-time employee of a railroad who suffered a knee injury as a result of the railroad's negligence. Because of the injury, the employee was no longer able to work at his job. At the time of the injury, the employee was nearly fifty-nine, and he would have been eligible to retire on full benefits at age sixty. Indeed, he had previously checked the railroad's website to determine the benefits he would receive if he retired at age sixty.
Following the injury, the employee sued the railroad in the Polk County District Court under the Federal Employers' Liability Act (FELA). In the litigation, the employee claimed he had planned to work until age sixty-six and, on that basis, sought approximately $755,000 in economic damages. To challenge this asserted retirement date, the railroad attempted to introduce evidence that the plaintiff was
eligible to retire on full benefits at age sixty and had checked the railroad's website regarding his retirement benefits, as well as statistical evidence that most railroad employees in the plaintiff's position retire at age sixty.
Based on its reading of the federal collateral source rule applicable to FELA cases, the district court excluded the railroad's evidence. The jury subsequently awarded $1.25 million to the plaintiff in a general verdict covering both economic and noneconomic damages. The railroad appeals, arguing the district court's reading of the federal collateral source rule in FELA cases was incorrect.
On our review, we agree with the railroad in part. When a railroad employee makes a claim of lost earning capacity based on a hypothetical retirement age, we do not believe federal law precludes the introduction of statistical evidence as to when railroad workers in the plaintiff's position typically retire. Because this excluded evidence was relevant and important to the railroad's defense, we reverse and remand for a new trial on damages.
I. Facts and Procedural History.
John Giza was born in 1950. In 1969, after graduating from high school, he went to work in Creston for the CV & Q Railroad as a brakeman-switchman. Except for a stint in the Navy, Giza continued to work for the railroad, which eventually became part of BNSF, for the next forty years. In 1978, Giza's seniority enabled him to become a conductor. This meant he still had the physical job duties of a brakeman-switchman but also had paperwork and supervisory responsibilities.
Giza's everyday work required him to assemble and disassemble trains by gathering up railcars from customers and breaking them down for customers along a stretch of railroad between Creston and Shenandoah. Giza had to climb ladders, ride on moving railcars, walk railcars, release and connect the " knuckles" between railcars, and walk on ballast.
On October 9, 2009, Giza was riding on the ladder of a railcar in the Red Oak yard as a locomotive was slowly pushing the railcar backwards. Giza was " protecting the point," that is, he was watching the crossing toward which the car was being pushed while talking on a handheld radio with the locomotive's engineer. Suddenly, Giza heard a bumping sound, indicating the train had derailed. Giza was thrown off the railcar and landed on his left foot. He instantly heard a pop in his left knee and felt excruciating pain.
Giza suffered a tear of his anterior cruciate ligament, a sprain of his medial collateral ligament, and a medial meniscal tear. Orthopedic surgery was performed on the knee on November 20, 2009. This was followed by physical therapy, manipulation, and injections on the knee. None of these gave Giza the relief from pain or flexibility he needed to go back to his former job. Giza could no longer climb ladders, walk on uneven surfaces, or stand for long periods of time. At the time of trial, Giza was still enduring constant knee pain at some level, and the pain became considerably worse when he tried to walk.
Giza brought suit against BNSF under FELA. See 45 U.S.C. § 51 (2012).  He
alleged that the railroad's negligence caused his injuries. Although BNSF initially disputed liability, by the time of trial, it had admitted fault and was only contesting damages.
Giza was nearly fifty-nine years old when the accident occurred. Giza sought recovery of lost earning capacity and loss of the value of household work services. Giza also requested damages for his pain and suffering.
Before trial, Giza acknowledged in deposition testimony that he was eligible to retire at age sixty on full pension, having worked at least thirty years for the railroad. He had checked the railroad's website before the accident to determine his estimated retirement benefits. However, he testified that he personally had intended to wait until age sixty-six to retire.
Giza's expert, Dr. John Ward, estimated Giza's lost earnings using the retirement age of sixty-six. His report initially stated, " Age 66 is the full benefit retirement age of all railroad workers born in 1950 as reported by the Railroad Retirement Board." Later this was amended to read, " For persons born in 1950, age 66 is the age at which an individual may receive an unreduced benefit at retirement under the Social Security Act."  He estimated loss of income at approximately $755,000 for those seven years (fifty-nine to sixty-six) if Giza were not able to secure and maintain alternative employment.
BNSF's expert, Mark Erwin, filed a report noting that railroaders with thirty or more years of service retire on average at age 60.7, and over sixty-two percent of them retire at age sixty. He also pointed out that railroad retirement benefits are largely exempt from federal taxes. Erwin discussed Giza's retirement benefits and concluded that based on the relative financial impact of working as opposed to retiring, it was " unlikely" Giza would have worked past age sixty even if he had not been injured.
Before trial, Giza filed a motion in limine seeking to exclude (1) all evidence of the average age of retirement for railroad workers and (2) all evidence regarding potential railroad retirement benefits. The district court ultimately granted the motion. Originally, the court said it would allow BNSF to show that Giza would be eligible to retire at age sixty but would not allow the railroad to go into the retirement benefits available to him. The court explained that its ruling was based upon FELA caselaw.
Both sides took issue orally with this ruling. Upon further consideration of FELA precedents, the court ruled that BNSF could not go into a railroader's retirement age, even without referring to benefits. The court also ruled BNSF could not introduce evidence that, prior to his injury, Giza had checked his retirement benefits on the BNSF website.
In his trial testimony, Giza reiterated that if he had not been injured, he planned to work until he was sixty-six. Dr. Ward testified he had calculated $755,000 in lost income based on Giza's statement that he intended to retire at age sixty-six. Dr. Ward acknowledged his statement in his report that sixty-six is the age at which an individual may receive an unreduced Social Security benefit. Under cross-examination,
Dr. Ward added that Giza's retirement
is his individual decision of what he wants to do. He is simply going to weigh how much he could earn by working against what he would earn not working; what benefits he would receive; his own health and his own enjoyment of the job, and it is his opinion that it is age 66.
Q. Okay. Would you agree with me that a person, in making those types of decisions, are going to weigh the very factors that you outlined, weigh what benefits they would receive, what income they would earn, comparing that versus retirement versus employment to determine when to retire? A. That is correct. He would be weighing, basically, earnings of approximately $106,000 a year, plus benefits of health insurance for he and his wife, versus what he would get by not working.
Q. [Y]ou would agree with me that it would be fair, and certainly economically supported, to look at what other people do in testing that testimony or that information that you were provided by Mr. Giza? A. I have no problem with that, no.
With the jury excused, BNSF asked the court to reconsider its ruling on the motion in limine, arguing:
[A]s the Court's ruling stands right now, the railroad has been precluded from doing anything to test Mr. Giza's testimony that he would have retired at age 66. We have not been allowed to explore the topic as to his understanding as to when he could retire. And we have not been allowed to explore the efforts that he undertook prior to this incident to evaluate and look at what benefits he would have received upon retirement. We have not been permitted to introduce evidence as to the statistical or actuarial studies that would indicate when ...