On appeal from the Superior Court of New Jersey, Law Division, Civil Part, MiddleseX County, L-3189-00.
Before Judges Kestin, Cuff and Winkelstein.
The opinion of the court was delivered by: Kestin, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 17, 2003
This is an action pursuant to the Federal Employer's Liability Act (FELA), 45 U.S.C.A. §§ 51 to -60, which permits railroad workers to recover for injuries suffered on the job in specified circumstances. Plaintiff appeals from a judgment in his favor on the ground that the jury verdict upon which it is based was inadequate and inconsistent. The trial court denied plaintiff's motion for judgment n.o.v. or, in the alternative, for a new trial or additur.
The parties had stipulated liability and had agreed that the only issues for jury consideration were medical causation and compensatory damages. Based upon the proofs, the jury returned a verdict responding in the affirmative to the question:"Did the accident of September 24, 1995 cause or contribute to any injuries sustained by the plaintiff[.]" The jury then responded to the remaining question submitted to it, awarding $65,000 for lost wages and $0 for pain and suffering. The verdict sheet reported a 5-1 vote on each element of damages.
On appeal, plaintiff argues he is entitled to a new trial on damages because the verdict was inconsistent in awarding economic damages for lost wages but failing to award damages for pain and suffering. He contends in further points on appeal that the trial court erred:
B.... in permitting the defendant to introduce evidence that the plaintiff was or had received railroad retirement benefits... [and] that such evidence was prejudicial and created unfair prejudice[;]
C.... in allowing the defendant to cross-examine the plaintiff with reference to mitigation evidence and argue the plaintiff's failure to mitigate damages without instructing the jury that the defendant had the burden of proof with respect to mitigation and without requiring that the defendant produce evidence that the plaintiff was physically able to perform an identified and available job[;]
D.... in failing to give the jury [a] complete... instruction on pre-existing injuries and conditions... [in the light of the testimony of] plaintiff's experts... thus permitting the jury to conclude that the plaintiff was not entitled to recover damages if his underlying conditions had originated from other causes even though the work injury aggravated or exacerbated those conditions[; and]
E.... in permitting the defendant to argue that the plaintiff's disability and chronic pain had causes other than his work injury where, as here, the defendant did not present any expert medical testimony in support of an alternative theory of causation and the plaintiff's medical experts clearly opined within a reasonable degree of medical certainty that the railroad accident played a part in the aggravation and exacerbation of the plaintiff's symptoms satisfying the FELA causation standard.
We do not consider jury verdicts such as those returned here to be necessarily inconsistent. In fitting circumstances, a jury might well [.arrowhorizex] and quite rationally [.arrowhorizex] determine, on the one hand, that a showing of medical causation had been made and that a plaintiff's loss of income was a direct consequence of the accident, while at the same time concluding that the plaintiff had not discharged his burden of proving the pain and suffering adequate to support a damages verdict therefor. In order to determine whether an apparent inconsistency was justified by the record, we must examine and evaluate the proofs for that purpose in the light of the arguments advanced by the parties.
At the time of the incident, on September 24, 1995, plaintiff, Robert L. Love, about fifty-eight years of age, had been employed by defendant, National Railroad Passenger Corporation (Amtrak), for some nineteen years. He was working as a trackman, standing in a hole, digging, along a section of defendant's rail line with six active tracks. A co-worker alerted plaintiff to the approach of a train, whereupon plaintiff jumped out of the hole. In doing so, he hit his knee on a track and gauge and fell, with his back hitting the rail. According to plaintiff in his testimony at trial, as he lay where he had landed,"[his] back felt as like a cold chill was running from my back to the lower part of my back down through both legs all the way out to my feet." He experienced"very excruciating" pain.
Plaintiff's co-workers eventually helped him to his feet. He remained at the job site for the rest of the day without engaging in manual labor ...