Lee Newsome sustained a serious injury to his right foot when a rail hanging from a crane fell on him. He was working for the Wisconsin Central Railroad. Newsome sued the railroad under the Federal Employers Liability Act (FELA) claiming that his injuries caused him a “loss of future earning capacity.” Wisconsin Central moved for partial summary judgment on Newsome’s loss of future earning capacity, arguing that the evidence did not support his claim. The U.S. Magistrate Judge handling this case denied Wisconsin Central’s motion, holding that there was a fact question for the jury. According to the Magistrate Judge’s decision, the U.S. Supreme Court has held that the FELA allows for the awarding of damages for impairment of earning capacity.
“The FELA is a broad remedial statute to be construed liberally in order to effectuate its purpose. In addition to compensation for pain and suffering, the FELA allows damages for economic harms such as loss of past and future wages and impairment of earning capacity that result from injury.” Grunenthal v. Long Island RR Co., 393 U.S. 156, 160-62 (1968).”
There were no 7th Circuit Court of Appeals cases for the Magistrate Judge to rely on. However, there were other federal circuit court cases that stated that proofs necessary to recover future loss of earning capacity is allowed in the FELA context.
In this case, Newsome’s evidence showed that he was off work for a year and returned to work “without restrictions” as a welder’s helper: the same position he held before the injury. He was transferred to a mobile mechanic, a comparable position with comparable pay. Almost 3½ years since he returned to work, he works full-time with no restrictions. Newsome testified that he has “a lot of pain” that worsens with time and he plans to work at his present job until he can no longer do it.
After Newsome returned to work, Newsome retained an orthopedic surgeon as an expert witness who issued a report stating that Newsome could work a “minimum of 1 or 2 years” or a “maximum of 15-20 years.” The vocational expert for Newsome testified that Newsome had a shortened work-life expectancy in his current job.
In the court’s ruling citing, Wiles v. New York, Chicago and St. Louis Railroad Co., 283 F.2d 328 (3d Cir. 1960), the judge said allowing a FELA plaintiff to recover a verdict for future lost earning capacity if he has produced competent evidence suggesting that his injury has narrowed his range of economic opportunity would suffice. This means that a plaintiff may not, as a prerequisite to recovery, prove that in the near future he would earn less money than he would have but for his injury.
“Rather, a plaintiff may 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 layoff, or to voluntarily leave the defendant employer for other employment.” Based on Newsome’s own testimony and that of his two experts on loss of future earning capacity, the Magistrate Judge found the question of future earning capacity should go to a jury.
For these reasons, the defendants’ motion for partial summary judgment was denied.
Newsome v. Wisconsin Central Ltd., 131 F.Sup.3d (E.D. Wis. 2015).
Kreisman Law Offices has been handling worksite injuries, FELA cases for railroad workers, catastrophic injury cases and forklift injury cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Antioch, Barrington, Crete, Deerfield, Hoffman Estates, Hinsdale, Inverness, Long Grove, New Lenox, Northfield, Glenview, Maywood, Worth, Blue Island, South Holland and Wilmette, Ill.
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