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Kotler v. National Railroad Passenger Corp.

August 29, 2008

DMITRIY KOTLER, PLAINTIFF-APPELLANT,
v.
NATIONAL RAILROAD PASSENGER CORPORATION ("AMTRAK"), DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3556-05.

The opinion of the court was delivered by: Lewinn, J.S.C., t/a

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued April 22, 2008

Before Judges Skillman, Winkelstein and LeWinn.

Plaintiff appeals from a judgment in favor of defendant National Railroad Passenger Corporation (Amtrak) entered upon a jury verdict in a personal injury action brought under the Federal Employers' Liability Act (FELA), 45 U.S.C.A. §§ 51 to 60. Following a two-day trial, the jury returned a verdict finding that Amtrak was not negligent.

On appeal, plaintiff challenges the admission of evidence that he received collateral source benefits during his disability period, as well as defense counsel's summation comment on that evidence. Plaintiff contends he did not "open the door" to the admission of such evidence. He claims the erroneous admission of collateral source benefits evidence impermissibly tainted the jury's verdict to a degree warranting reversal. We agree. Consequently, we reverse and remand for a new trial.

Plaintiff had worked for Amtrak as an electrician since 1994. On July 10, 2003, plaintiff was assigned to service trains at an Amtrak facility; this assignment included inspecting the Special Departure Units (SDU) on the trains to insure proper functioning.

While inspecting a train, plaintiff noticed that the glass door to an SDU was broken and needed to be replaced. He tried, unsuccessfully, to remove a plug on the SDU with his hand. At the suggestion of his supervisor, plaintiff went to the office of Patrick Lockhart, an Amtrak electrical foreman, to obtain a tool known as a "channel lock." Plaintiff testified that Lockhart told him someone had taken the channel lock and never returned it. Because the train on which he was working was "supposed to leave approximately in an hour[,]" plaintiff felt he was under a time constraint and returned to work on the SDU without the channel lock.

The SDU was in a locked position, and plaintiff testified that it was necessary to apply "close to 20 pounds to release it." While attempting to unlock and turn the plug, plaintiff sprained his thumb. He was out of work until December 8, 2003, at which time he returned as an electrical technical advisor, which did not require him to work with tools.

Plaintiff claimed that Amtrak was liable because the SDU was poorly designed and Amtrak failed to provide him with the proper tool to complete the job, thereby causing his injury.

Plaintiff presented no liability expert at trial.

Plaintiff brought an in limine motion "to preclude evidence of benefits which w[ere] received by plaintiff through a short-term disability policy, a railroad retirement board." In addition, plaintiff's counsel requested that "if counsel is going to cross-examine [plaintiff] based on a railroad retirement board document, that there be no reference of the fact that it's a railroad retirement document. And that . . . any evidence as to railroad retirement board be . . . redacted."

Defense counsel concurred in plaintiff's motion, reserving the right to pursue that line of questioning if plaintiff "opened the door."

The court ruled:

The motion is granted unless the door is open. If the door is open[ed] and you consider that the door has been open[ed], before the evidence can be submitted to the jury, we will have a discussion at sidebar and a ruling.

Thereafter, during plaintiff's direct examination, the following colloquy occurred:

Q: Now when you did go back to work at Amtrak -- by the way, did you get paid during that time, the time that you were out (Indiscernible)?

A: I received --

Q: Let me ask you this. How much were you paid during that time?

A: It was alternative pay of $56 --

Q: No, no, no, no. How much were you --what was your rate of earnings as an electrician when you got hurt?

A: If I'm not mistaken, maybe (Indiscernible) five.

Q: And did you get paid that rate between July 10th 2003 and December 8th -- I'm sorry -- December 8th 2003?

A: No.

During cross-examination, this ...


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