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Dalebout v. Union Pacific Railroad Co.5/6/1999
-percent chance of future back surgery.
First, regarding future impairment of earning capacity, Union Pacific insists that, without Dr. Bryan's testimony on the thirty-percent chance, Dalebout presented insufficient evidence to support his claim. Union Pacific thus asserts the trial court should have granted its requests to direct a verdict or enter a JNOV for Union Pacific on future impairment of earning capacity. On the other hand, Union Pacific maintains that, even if other evidence supported an award here, there is a reasonable likelihood that the amount would have been lower absent Dr. Bryan's inadmissible testimony.
Second, regarding future pain and suffering, Union Pacific similarly argues that the award would have been different had Dr. Bryan's testimony on the thirty-percent chance been excised. Union Pacific thus protests the trial court's refusal to order a remittitur or new trial, without Dr. Bryan's inadmissible testimony, regarding damages for future pain and suffering.
ANALYSIS
I. Overview of FELA
Recognizing the hazards of railroading, Congress passed FELA in 1908 "to shift part of the 'human overhead' of doing business from employees to their employers." Belt v. Burlington N.R.R. Co., No. A-96-305, 1997 Neb. App. LEXIS 110, at *15 (Neb. Ct. App. 1997); see also 32B Am. Jur. 2d Federal Employers' Liability and Compensation Acts § 2 (1996) ("[FELA] seeks to adjust the cost of injury equitably between employee and employer; to stimulate carriers to take measures for the prevention of injury to their employees; to provide a liberal rather than a static remedy for injured workers; to protect the health of employees; and to promote public interests."). However, FELA is not the same as worker 's compensation--it does not cast railroad employers in the position of insuring their workers' safety. See Belt, 1997 Neb. App. LEXIS 110, at *16. Instead, a railroad's liability is based on negligence. See id. FELA exclusively controls a railroad employee's claim against a railroad employer for an on-duty injury caused by the railroad's negligence. See id.; accord Fashauer v. New Jersey Transit Rail Operations, Inc., 57 F.3d 1269, 1274 (3d Cir. 1995).
Two fundamentals of FELA law shape our treatment of this case. First, "FELA requires liberal construction in order to protect railroad employees." 13 Personal Injury § 1.01 (Louis R. Frumer & Melvin I. Friedman eds., 1998); accord 32B Am. Jur. 2d, supra, § 3. Second, "FELA cases adjudicated in state court are subject to the forum state's procedural rules, while federal law governs the substantive issues." Handy v. Union Pac. R.R. Co., 841 P.2d 1210, 1214 (Utah Ct. App. 1992); see also 13 Personal Injury, supra, § 1.05 ("The FELA cause of action is a creation of the United States Congress, and the rights created by the Act are federal rights protected by federal law which does not vary according to the differing conceptions of state or local courts."). Specific to this case, "'questions concerning the measure of damages in a FELA action are federal in character.'" Reusch v. Seaboard Sys. R.R., 566 So. 2d 489, 491 (Ala. 1990) (citation omitted); accord 11 Am. Jur. Trials Federal Employers' Liability Act Litigation § 2 (1966). Indeed, " ore consistent results have thus been achieved in FELA actions than is possible in the case of other torts where each state is free to follow its own damages rules." 11 Am. Jur. Trials, supra, § 34.
II. Admissibility of Testimony about Future Surgery
Union Pacific first contends the trial court should not have admitted into evidence Dr. Bryan's testimony that Dalebout has a thirty-percent chance of needing future back sur
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