Argued: February 10, 1998
On appeal from the Superior Court of New Jersey, Law Division, Hudson County.
Before Judges Dreier, Keefe and Wecker.
The opinion of the court was delivered by: Keefe, J.A.D.
The primary issues presented in this appeal are whether state or federal law governs plaintiff's prospective lost wage claim under the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq. (FELA), and whether the trial court erred in barring such claim in this matter.
Plaintiff, Raymond Donovan, brought suit under the FELA against his employer, the Port Authority Trans-Hudson Corporation (PATH or defendant), for injuries sustained in the course of employment. Defendant answered the complaint and raised the defense of plaintiff's contributory negligence. Jurisdiction in the New Jersey Superior Court was under 45 U.S.C. § 56.
After a four day trial, the jury returned a unanimous verdict, finding that defendant was negligent, that such negligence caused plaintiff's injuries, and that defendant was therefore liable in the amount of $250,000 for plaintiff's pain and suffering. The jury also decided that plaintiff was thirty-three percent contributorily negligent and that his award should be reduced accordingly under the FELA.
Both plaintiff and defendant moved for a new trial, and the Judge denied both requests. Plaintiff appeals and defendant cross-appeals raising the following issues:
APPEAL I. PLAINTIFF'S CONTRIBUTORY NEGLIGENCE SHOULD NOT HAVE BEEN A JURY ISSUE
II. THE COURT ERRED IN NOT PERMITTING THE JURY TO CONSIDER THE IMPACT OF PLAINTIFF'S INJURIES ON HIS ABILITY TO SECURE AND MAINTAIN EMPLOYMENT
III. THE TRIAL COURT ERRED BY GIVING AN ADVERSE INFERENCE CHARGE TO THE JURY REGARDING PSYCHOLOGICAL EXPERTS WHO FAILED TO TESTIFY AT TRIAL
IV. PLAINTIFF'S FEAR OF LOSING HIS JOB WAS NOT A PSYCHOLOGICAL INJURY FOR WHICH HE WAS ENTITLED TO DAMAGES AND THE TRIAL COURT ERRED BY ALLOWING THE JURY TO CONSIDER SUCH EVIDENCE ESPECIALLY SINCE NO COMPETENT EXPERT TESTIMONY WAS PRESENTED REGARDING PLAINTIFF'S PSYCHOLOGICAL CONDITION
A. Prospective Damages are not recoverable
B. Plaintiff failed to meet the requirements to establish impaired earning capacity
C. The jury in error based its damage award for past wage loss and future wage loss on gross income rather than net taxable income.
We are satisfied from our review of the record that none of the issues presented on the appeal or cross-appeal have merit or require extensive discussion, with the exception of that part of the appeal and cross-appeal relative to plaintiff's claim for future lost income. R. 2:11-3(e)(1)(E). As to that issue, we find error requiring a new trial. Because the error does not affect the ...