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Dalebout v. Union Pacific Railroad Co.5/6/1999
the jury's decision to award substantial damages for both future impairment of earning capacity and pain and suffering. "The erroneous admission of such testimony is reversible error, as it is impossible to determine to what extent the jury relied upon the testimony in its assessment of the damages." Harp, 370 N.E.2d at 829-30. Under our analysis, a new trial without Dr. Bryan's testimony regarding the thirty-percent chance of future surgery is warranted to reconsider damages for future pain and suffering and for impairment of earning capacity. However, before remanding on the issue of future-earning-capacity damages, we must address Union Pacific's final contention.
III. Future Impairment of Earning Capacity
Union Pacific charges that, without Dr. Bryan's testimony on the thirty-percent chance of future surgery, coupled with his statement that Dalebout could not continue working as an engineer after such surgery, insufficient evidence exists to support Dalebout's claim of impaired future earning capacity. Union Pacific thus asserts that we should not include this issue in our remand for a new trial, but should simply reverse the jury verdict and award nothing regarding this aspect of damages.
Union Pacific challenged in vain the sufficiency of the evidence before the trial court in motions for directed verdict and JNOV. The trial court would have been justified in granting Union Pacific's motion for a directed verdict solely if, when viewing the evidence in a light most beneficial to Dalebout, no competent evidence existed to sustain a verdict for Dalebout. See Merino v. Albertsons, Inc., 363 Utah Adv. Rep. 8, 8 (Utah 1999); see also Central of Georgia R.R. Co. v. Mock, 499 S.E.2d 673, 675 (Ga. Ct. App. 1998) ("'In a FELA case, a directed verdict is possible only when there is a complete absence of probative facts supporting the non-movant's position.'" (Citation omitted.)). Similarly, the trial court would have been justified in granting Union Pacific's motion for JNOV only if, examining all the evidence in a light favoring Dalebout, the evidence was insufficient to uphold the verdict. See Hall v. Wal-Mart Stores, Inc., 959 P.2d 109, 111 (Utah 1998). However, as we will explore further below, " t is a rare [FELA] case in which a defense motion for a directed verdict or a [JNOV] is successful either initially at the trial or ultimately on appeal." 11 Am. Jur. Trials Federal Employers' Liability Act Litigation ยง 2 (1966).
It is well settled that a FELA plaintiff may claim compensatory damages for impaired earning capacity. See Fashauer v. New Jersey Transit Rail Operations, Inc., 57 F.3d 1269, 1284 (3d Cir. 1995). "Earning capacity means the potential for earning money in the future . . . ." Belt v. Burlington N.R.R. Co., No. A-96-305, 1997 Neb. App. LEXIS 110, at *29 (Neb. Ct. App. 1997); see Corbett v. Seamons, 904 P.2d 229, 232 n.2 (Utah Ct. App. 1995). To recover, "a plaintiff must show that his injury has caused a diminution in his ability to earn a living. Such a diminution includes a decreased ability to weather adverse economic circumstances, such as a discharge or lay-off, or to voluntarily leave the defendant employer for other employment." Gorniak v. National R.R. Passenger Corp., 889 F.2d 481, 484 (3d Cir. 1989); see Donovan v. Port Auth. Trans-Hudson Corp., 707 A.2d 171, 175 (N.J. Super. Ct. App. Div. 1998).
Union Pacific argues that this showing by the plaintiff must be detailed and explicit, citing two FELA cases similar to this one: Fashauer, 57 F.3d at 1269, and DeChico v. Metro-North Commuter R.R., 758 F.2d 856 (2d Cir. 1985). It is true that if we used Fashauer and DeChico as our guiding legal authority, we would likely overturn
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