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Dalebout v. Union Pacific Railroad Co.5/6/1999
yed in a higher paying position, whether under those circumstances plaintiff was likely to look elsewhere for employment, and whether there was any real likelihood that the employer would terminate plaintiff under the circumstances are simply factors for the jury to consider in determining whether such damages should be awarded." Donovan, 707 A.2d at 175; see also Illinois Cent. Gulf R.R. Co. v. Russell, 551 So. 2d 960, 964 (Ala. 1989) ("The fact that [the plaintiff] has continued to work six or seven days a week for sixteen months is 'merely evidence to be considered by the jury in determining whether or not his earning power had been impaired by the accident.'" (Citation omitted.)); Robison, 27 Cal. Rptr. at 263 (holding evidence sufficient despite fact "that the plaintiff was able to return to his work 75 days after the accident and that he worked steadily thereafter"); Belt, 1997 Neb. App. LEXIS 110, at *37 (stating that counsel may alert jury to claim's weaknesses--i.e., plaintiff's lack of plans to leave railroad and compete in job market with injury--but those facts do not automatically render evidence insufficient). Of course, we do not suggest that the evidence as a whole necessarily supports awarding Dalebout damages for future impairment of earning capacity. See Gorniak, 889 F.2d at 484. We merely conclude that Dalebout introduced adequate evidence to permit a reasonable fact finder to determine that his earning capacity could dwindle in the future. See id.
We reiterate: "Our decision here is controlled by the fact that this is a FELA case, and the strong preference in such a case is for the jury to determine all factual issues where the jury can reasonably draw the particular inference or Conclusion submitted to it." Foltz v. Burlington N.R.R. Co., 689 S.W.2d 710, 716 (Mo. Ct. App. 1985). We elect to leave "the resolution of any uncertainty . . . to a properly instructed jury." Belt, 1997 Neb. App. LEXIS 110, at *34; accord Gorniak, 889 F.2d at 484. Consequently, we hold that enough evidence exists regarding future impairment of earning capacity, even absent Dr. Bryan's testimony on the thirty-percent chance of future surgery, to remand this issue of damages to be retried.
CONCLUSION
We conclude the trial court incorrectly admitted Dr. Bryan's testimony that Dalebout has a thirty-percent chance of needing surgery in the future. This was reversible error because there is a substantial likelihood the verdict awarding damages for future impairment of earning capacity and pain and suffering would have been different without the inadmissible testimony. Further, aside from Dr. Bryan's inadmissible testimony, enough evidence exists to support a jury verdict awarding damages for future impairment of earning capacity. Accordingly, we affirm in part and reverse in part, remanding for a new trial--without Dr. Bryan's inadmissible testimony--on damages for both future impairment of earning capacity and pain and suffering.
Norman H. Jackson, Judge
WE CONCUR: Pamela T. Greenwood, Associate Presiding Judge Judith M. Billings, Judge
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