MEMORANDUM-DECISION AND ORDER 1
Plaintiff Christopher Ahlf (“Plaintiff’ or “Ahlf’) sued his employer; Defendant CSX Transportation, Inc. (“Defendant” or “CSX”), under the Federal Employers’ Liability Act, 45 U.S.C. § 51 et seq. (“FELA”), for injuries sustained during the course of his employment. Complaint (Dkt. No. 1). After a jury trial, Plaintiff received a verdict of $1,750,000 for past and future pain and suffering and $471,000 in past and future lost wages, reduced by five percent attributable to a pre-existing condition, for a total award of $2,109,950. Jury Verdict (Dkt. No. 38). Presently before the Court is Defendant’s motion for a new trial pursuant to Rule 59 of the Federal Rules of Civil Procedure or, in the alternative, for a remittitur, on the basis that the verdict is excessive as a matter of law, the percentage of the injury attributable to a pre-existing condition was against the weight of the evidence, and that the Court’s failure to charge the jury concerning Plaintiffs duty to mitigate his damages was in error. Motion (Dkt. No. 42). For the following reasons, the motion is denied.
1. BACKGROUND
Alhf began his employment with the Defendant in approximately March 1996. Trial transcript from February 8, 2005 (“Feb. 8 Tr.”) 2 at 136. On December 5, 1999, while working as an engineer for Defendant, Plaintiff was injured when the train on which he was working was struck by another train. Id. at 147-48. As a result, Plaintiff was taken to the emergency room, where he complained of shoulder and back pain. Id. at 150. After being seen by a private physician, he was referred to Dr. James Striker (“Dr.Striker”) of the Capital Orthopedic Group. On March 31, 2000, Plaintiff was referred to Dr. Robert Cheney (“Dr.Cheney”), a board certified orthopedic surgeon. Id. at 151. Plaintiff complained of pain on the right side of his body, including his lower back, buttock, and radiating leg pain. Id. at 21. Dr. Cheney found that Plaintiff was suffering from a herniated disk and spinal steno-sis. Id. at 15. Observing that the pain medication and physical therapy prescribed by Dr. Striker failed to provide Plaintiff with significant pain relief, Dr. *86 Cheney referred Plaintiff for epidural steroid injections, the first of which was mildly successful and the second of which was moderately ineffective. Id. at 24-27, 156. After a September 8, 2000 visit to Dr. Cheney, Plaintiff was instructed to wear an LSO brace, a hard plastic brace that restricts motion, which also provided Plaintiff with little relief. Id. at 28. As a result of the conservative treatment’s failure to provide significant pain relief, on November 9, 2000, Dr. Cheney recommended that Plaintiff undergo a spinal fusion at the L4-L5 level in order to stabilize the spine. Id. at 31, 158. Plaintiff underwent a laminectomy and a spinal fusion on March 28, 2001. Id. at 36-38. Plaintiff spent four or five days in the hospital and was required to wear an LSO brace until June 28, 2001, a period of three months after undergoing surgery. Id. at 47-48. After his surgery, Plaintiff was required to have a seroma, a collection of fluid, drained on two occasions. Id. at 46-47.
Plaintiff resumed physical therapy and returned to work for Defendant on a light-duty basis in July 2001 with limited four hour shifts and limited lifting, bending and twisting. Id. at 54, 159. On September 7, 2001, Plaintiff indicated to Dr. Cheney that he was experiencing a fair amount of discomfort in his back. Id. at 55. By November 2001, Plaintiff had resumed full time work, although as a conductor instead of his prior work as an engineer. Id. at 161. In December 2001, Plaintiff again complained about a backache when he was up and standing for long periods of time. Id. at 58. In February 2002, Plaintiff was forced to stop working because of significant pain in his lower back. Id. at 60, 162.
Plaintiff then discussed other job possibilities with Dr. Cheney, Gary Baker, a representative of Defendant, and Scott Mitchell, Defendant’s vocational rehabilitation manager. Id. at 164-65. In May 2002, Plaintiff submitted an application for a yardmaster position with Defendant, but was not selected for this position. Id. at 165-66. During the summer of 2002, with the support of Defendant, Plaintiff chose to return to the College of St. Rose to obtain his teaching certification. Id. at 166-67. Plaintiff completed his teaching certification and obtained employment at the Bethlehem High School beginning in February 2003. Id. In June 2004, Plaintiffs contract with the school was not renewed and Plaintiff continues to attempt to find a full-time teaching position. Id. at 168. Plaintiff currently works as a substitute teacher and is enrolled at the College of St. Rose in order to obtain a master’s degree in educational psychology. Id. at 169.
Defendant conceded liability and a jury trial on the issue of damages was held beginning on February 7, 2005 before this Court. On February 10, 2005, a jury verdict was returned in favor of Ahlf awarding total damages in the amount of $2,221,000. The jury awarded $1,000,000 for past pain and suffering, $750,000 for future pain and suffering, $176,000 for past loss of earnings, $295,000 for future loss of earnings, and attributed five percent of those damages to Plaintiffs pre-existing condition, resulting in an award of $2,109,950. Verdict Form (Dkt. No. 38).
Defendant asserts three grounds for either a new trial or remittitur. First, Defendant contends that the jury’s award of $1,750,000 for past and future pain and suffering is excessive as a matter of law and not rationally based on the evidence. Def. Memo. (Dkt. No. 42) at 2. Second, Defendant states that the jury’s apportionment of five percent of the damages to Plaintiffs pre-existing condition is against the weight of the evidence. Id. at 7. Third, Defendant argues that the Court failed to instruct the jury on Plaintiffs duty to mitigate his damages. Id. at 9. *87 Defendant also moves for a stay of execution to enforce the judgment pending disposition of this motion pursuant to Federal Rule of Civil Procedure 62(b). 3 Id. at 10.
II. DISCUSSION
Federal Rule of Civil Procedure 59(a) provides that “[a] new trial may be granted to all or any of the parties and on all or part of the issues ... in an action in which there has been a trial by jury, for any reasons for which new trials have heretofore been granted in actions at law in the courts of the United States.” FED. R. CIV. P. 59(a). A new trial may be granted pursuant to Rule 59, when “the jury has reached a seriously erroneous result or ... the verdict is a miscarriage of justice”.
Song v. Ives Labs., Inc.,
A. Excessiveness of the Verdict
Defendant contends that the jury’s damage award for past and future pain and suffering is excessive as a matter of law and Defendant is therefore entitled to a new trial or remittitur of these damages. Def. Memo. (Dkt. No. 42) at 2.
“If a district court finds that a verdict is excessive, it may order a new trial, a new trial limited to damages, or, under the practice of remittitur, may condition a denial of a motion for a new trial on the plaintiffs accepting damages in a reduced amount.”
Casey v. Long Island R.R. Co.,
“A jury verdict is not, certainly, something lightly to be set aside.”
Nairn v. Nat’l R.R. Passenger Corp.,
*88
The analysis of a jury award is necessarily informed by the particular facts of each case.
See Scala,
After the accident on December 5, 1999, Plaintiff complained of back and shoulder pain. Feb. 8 Tr. at 150. When physical therapy and medication failed to ease the pain Plaintiff was experiencing, epidural steroid injections were administered and Plaintiff wore a rigid brace to stabilize his back. Id. at 24-27, 156. The injections and brace also failed to relief the symptoms of pain and discomfort plaguing Plaintiff and as a result, Plaintiff underwent major back surgery performed by Dr. Cheney on March 28, 2001, consisting of a L4-L5 posterior lumbar fusion with application of carbon fiber cages and ileac crest bone grafting. Id. at 35-43. Even after surgery, Plaintiff reported to Dr. Cheney that he was experiencing significant pain and discomfort in his lower back, which progressed to the point where in February 2002, he could no longer work as a conductor for Defendant. Id. at 55, 58, 60, 162. In addition to affecting Plaintiffs career, he testified that the pain has diminished his quality of life, preventing him from maintaining his property and engaging in hobbies such as boating and hunting. Id. at 173. Plaintiff testified that he continues to feel some pain and discomfort which he describes as a “dull aching pain”, which at times becomes a “throbbing nerve pain” that feels like- being stuck with a “sharp pin”. Id. at 174.
Defendant’s own physician, Dr. James Nelson (“Dr.Nelson”), stated that Plaintiff has limited back motion, experiences significant pain that limits him when he bends forward, and that Plaintiff was fifty percent limited when bending to the right and left. Feb. 9 Tr. at 158. Both Dr. Cheney and Dr. Nelson testified that Plaintiff will have some degree of discomfort for the rest of his life, that over time, there is a greater chance that he will have more difficulty with his back, and that the Plaintiff is now more susceptible and prone to injury since his spinal fusion. Feb. 8 Tr. at 67-68, 71-72; Feb. 9 Tr. at 174-77.
Dr. Cheney testified that Plaintiff will continue to have limitations in lifting, bending, and twisting and the risk of a future operation as a result of wearing of adjacent verteabra. Feb. 8 Tr. at 71-72. Dr. Cheney also testified that the need for surgery, physical therapy, and a change in occupation was all causally related to the accident of Dec. 5,1999. Id.
“In order to determine whether a particular award is excessive, courts have found it useful to review awards in other cases involving similar injuries, while bearing in mind that any given judgment depends on a unique set of facts and circumstances.”
Naim v. Nat’l R.R. Passenger Corp.,
Defendant cites cases in which plaintiffs were awarded lesser amounts for injuries which Defendant argues are comparable to, or arguably worse than, those in this case. For example, Defendant cites
*89
Schneider v. Nat’l R.R. Passenger Corp.,
In fact, the court in
Bean,
a factually similar case decided in the Northern District of New York, stated that “[a] survey of such similar cases reveals that awards for pain and suffering for severe back injuries as high as $3,000,000 have been sustained in federal and state courts under both the ‘shock the conscience’ standard or under the less deferential state law standard.”
Bean,
Defendant also cites
Nairn v. Nat’l R.R. Passenger Corp.,
Lastly, Defendant relies on
Casey v. Long Island R.R. Co.,
The Court’s review of similar cases reveal that the jury’s award of $1,000,000 for five years of past pain and suffering and $750,000 for thirty years of future pain and suffering for a severe back injury and major surgery falls within the reasonable range of verdicts. For all these reasons, Defendant has failed to meet its substantial burden that this jury’s award of $1,750,000 for past and future pain and suffering is “clearly outside the maximum limit of a reasonable range.”
D’Amato v. Long Island R.R. Co.,
B. Plaintiffs Pre-Existing Condition
Defendant also contends that the jury’s five percent apportionment of damage to Plaintiffs pre-existing condition was against the weight of the evidence. Def. Memo. (Dkt. No. 42) at 7.
*91
“[T]he power of the district court to grant a new trial based on the weight of the evidence [is] one that could properly be exercised only if the court viewed the jury’s verdict as seriously erroneous.”
Piesco v. Koch,
Defendant has the burden of proving that Plaintiff had a pre-existing condition.
See Maurer v. United States,
In supporting its position, Defendant states that Plaintiff had a significant pre-existing back problem and highlights statements by Plaintiffs own treating physician, Dr. Cheney, that diagnosed Plaintiff with a disc herniation, that Plaintiff sought treatment from a chiropractor on thirty-six occasions between 1996 and 1999, and Dr. Nelson’s opinion that twenty-five percent of Plaintiffs injury was attributable to his pre-existing condition. Def. Memo. (Dkt. No. 42) at 8.
However, Defendant has offered no evidence that Plaintiff had a pre-existing disk herniation. Rather, Defendant presented evidence that Plaintiff had minor pre-exist-ing joint pain for which he underwent occasional chiropractic care. Dr. Robert Golden, Plaintiffs chiropractor before the accident, testified that he never treated Plaintiff for a herniated disk, but rather, treated Plaintiff for problems with his joint alignment. Feb. 9 Tr. at 140. Both Dr. Cheney and Dr. Nelson testified at trial that Plaintiffs disk herniation was causally related to the December 5, 1999 collision. Feb. 8 Tr. at 73; Feb. 9 Tr. at 175. Dr. Nelson also testified that it was his opinion that the spinal fusion surgery was necessary because of the disk herniation that occurred at L4-L5. Feb. 9 Tr. at 175.
Defendant’s assertion that because Dr. Nelson testified that twenty-five percent of Plaintiffs damages were attributable to his pre-existing condition, the jury’s verdict is against the weight of the evidence is without merit. Dr. Nelson himself stated that “assigning a percentage from one causative factor to the other is, by nature ... arbitrary.” Feb. 9 Tr. at 163.
A review of the testimony and evidence at trial and Defendant’s proof in support of its motion reveals that the jury’s verdict is within the realm of reasonableness and does not approach the threshold of being the sort of “seriously erroneous result” that would constitute a miscarriage of justice and necessitate a new trial. Therefore, Defendant’s motion for a new trial or remittitur on the ground that the jury’s apportionment of damages to Plaintiffs pre-existing condition was against the weight of the evidence is denied.
C. Jury Charge of Plaintiffs Duty to Reasonably Mitigate His Damages
Defendant next contends that the Court refused Defendant’s request to charge the jury on the issue of Plaintiffs duty to mitigate his damages, and therefore Defendant is entitled to a new trial. Def. Memo. (Dkt. No. 42) at 9.
Defendant states that Plaintiff has an associate’s degree in electrical engineering from Alfred State University, a bachelor’s degree in electrical engineering from Rochester Institute of Technology, and *92 twelve years work experience in the electrical engineering field. Id.; Feb. 8 Tr. at 130. Defendant argues that Plaintiff could have returned to gainful employment with earnings exceeding those of his railroad employment by being employed as an electrical engineer, and that by returning to school and obtaining employment as a teacher does not, as a matter of law, satisfy Plaintiffs duty to mitigate his damages. Def. Reply (Dkt. No. 49) at 8. Defendant claims that it was therefore a question for the jury to determine whether Plaintiff had, in fact, reasonably mitigated his damages in light of his education, experience, and physical ability. Def. Memo. (Dkt. No. 42) at 9.
As stated by Defendant, under FELA, Plaintiff has a duty to reasonably mitigate his damages.
See Wilson v. Union Pacific R.R. Co.,
This Court’s refusal to instruct the jury on mitigation does not entitle Defendant to a new trial. After the accident, Plaintiff attempted to return to work with Defendant, but, because of continuing pain, Plaintiff was forced to stop his work as a conductor in February 2002. Feb. 8 Tr. at 162. In the spring and summer of 2002, Plaintiff and Scott Marshall, Defendant’s vocational rehabilitation manager, discussed numerous options including Plaintiff attempting to return to his previous career as an electrical engineer, returning to school for additional training, and completing his Masters of Business Administration. Id. at 164-65; Feb. 9 Tr. at 117. Plaintiff expressed interest in staying employed with Defendant in another capacity and applied for the only job opening about which Marshall notified Plaintiff, a yardmaster position, and after not being offered that job, Plaintiff returned to school for retraining and undertook a full-time teaching position which was compatible with Plaintiffs physical restrictions. Feb. 8 Tr. at 165-67; Feb. 9 Tr. at 117-19. Marshall and Defendant assisted Plaintiffs transition to the teaching profession and Defendant paid for Plaintiffs tuition, books, and purchased a laptop for Plaintiffs studies. Feb. 9 Tr. at 119-20. Marshall testified that in his opinion, Plaintiff had successfully completed Defendant’s vocational rehabilitation program, in that Plaintiff had retrained and obtained alternative employment. Feb. 9 Tr. at 123.
At trial, Defendant offered no evidence that Plaintiff turned down a position offered by Defendant or otherwise failed to act reasonably in his attempt to obtain gainful employment. Defendant’s contention that Plaintiff might have received a greater income by returning to his prior employment as an electrical engineer does not meet Defendant’s burden. Plaintiff testified that he was physically incapable of performing his past employment as an electrical engineer. Feb. 8 Tr. at 200. Defendant did not challenge Plaintiffs stated incapacity to return to a position as an electrical engineer and otherwise failed to show that any such jobs were available to Plaintiff.
Because the Defendant failed to meet its burden of proving that Plaintiff did not *93 reasonably mitígate his damages, the Court did not err in declining to instruct the jury on the issue of mitigation. Thus, Defendant is not entitled to a new trial and Defendant’s motion is denied in this regard.
III. CONCLUSION
Accordingly, it is hereby
ORDERED that Defendant’s motion for a new trial or remittitur is DENIED; and it is further
ORDERED that the Clerk of the Court shall serve copies of this order by regular mail upon the parties to this action.
IT IS SO ORDERED.