MEMORANDUM AND ORDER
Plаintiff James Earl, a 66 year-old former tugboat deck hand, brings an action against his employer under the Jones Act, 46 U.S.C.App. § 688, and general maritime law for injuries suffered as a result of two separate accidents in 1984. As a consequence of his injuries he claims he was forced to retire on May 16, 1985, approximately a month before turning 62. He claims damages for, inter alia, loss of future earnings on the grounds that, absent injury, he would have continued to work at least an additional three years and *1169 five weeks — that is, until his 65th birthday, if not longer.
After a three day trial, the jury found for plaintiff and awarded him a total of $855,000 in damages, of which $425,000 was attributed to lost earnings suffered as a result of the second accident. Defendant moves for a new trial or remittitur.
There exists at least some evidence to support a finding that Earl, absent the accident, would have been able to work past the age of 62 and that he would have done so. Regardless of his pre-accident intentions, it is apparent that plaintiffs earning capacity — or work-capital — was permanently impaired or depleted as a result of his injuries.
Theoretically the human working machine can last (with some decreasеs in effectiveness through illness and decrepitude) — and thus has economic value — almost to the point of death. As a matter of law, then, an award taking into account any loss of value due to injury or death caused by a tortfeasor, can take into account even this residual and declining loss of value up to the time of predicted death. There is a considerable effort in a shrinking labor market to keep older people employed beyond the usual date of retirement. See Lewin, Too Much Retirement Time? A Move is Afoot to Change It, N.Y. Times, Apr. 22, 1990, § 1, at 1, col. 1. In fact, realities of the labor market in an industrial-commerсial world make it unlikely that the last possible moment of a worker’s time would be purchased by an employer. Moreover, as age increases, the probability that the worker may claim total disability, using the injury as justification for not pushing himself or herself to work probably increases.
These subtle nuances between loss of full work-capital value at one end of the spectrum and malingering at the other are generally best left to the judgment of the community as reflected in the jury’s verdict. In computing the full value of a tort victim’s depleted work-capital the jury may consider a variety of factors that differ from plaintiff to plaintiff, such as past earnings, the marketplace value of an individual’s skills, the availability of suitable employment, and average work-life expectancy as projected by government statistical tables. This value may be affected as a result of particularized evidence bearing on a plaintiff’s pre-accident intentions and proclivities. For example, if the jury credited evidence that before being injured a plaintiff had intended to retire early, a reduction of the full value of an award would be justified under the doctrine of mitigation of damages, which requires tort victims to find alternative employment whenever possible. The award may be increased to the full or close to full value if, on the other hand, the jurors believed that a plaintiff was likely to work beyond that age at which the statistical tables or their common sense experience would normally predict retirement.
Where a jury verdict seems lopsidedly to favor one side or the other, the court has the obligation to require some equalization. This is such a case. Defendant’s contention that there was no loss of еarning capacity is unfounded. Nevertheless, for the reasons discussed below, defendants’ motion for remittitur as to the award for future loss of earnings must be granted since an excessive award was made. Other adjustments are referred to below.
I. Background
A. The Parties' Claims
Earl claimed that he injured his right elbow in an August 29, 1984 accident and that he injured his ankle and reinjured his elbow in a second accident on December 13, 1984. Both accidents occurred while he was working on the Marion C. Bouchard, a tugboat owned by plaintiff’s employer, defendant Bouchard Transportation Co. Plaintiff contended, and the jury found, that both аccidents occurred as a result of the employer’s negligence and the unseaworthiness of the tugboat.
As a consequence of the first accident, Earl claimed he was unable to work for two weeks. It was undisputed that he was unable to work for 11 days after the second accident. He returned to work approxi *1170 mately a month later, in early 1985, but claimed that his injuries eventually forced him to retire on May 16, 1985 — three years and five weeks before his planned retirement at age 65.
Evidence adduced by defendants at trial indicated that plaintiff’s intention prior to the aсcidents had been to retire in June of 1985 when he turned 62 years of age. Captain Kenneth Bekkelund of the Marion C. Bouchard testified that it had been common knowledge prior to Earl’s December 1984 accident that he “was looking forward to retiring and talked of it frequently.” Bekkelund testified that none of the crew had been surprised when plaintiff retired in May 1985. A member of the tugboat crew testified that Earl said nothing about being unable to work when he called to announce his retirement. Defendants also claimed that Earl had communicated his intention to retire to the family doctor treating him fоr the ankle injury even before the doctor had formally certified that Earl was “not fit for duty.”
Plaintiff testified that he “would probably have retired ... at 65.” He denied having spoken about early retirement plans to his captain or fellow crew members. With regard to his doctor, Earl acknowledged that while he may have “discussed the possibility” of retiring, he did not recall having informed his physician of any definite plan to do so. In his closing argument, plaintiff’s counsel presented the jury with two possible scenarios: retirement at age 65 as plaintiff testified was his intention, or retirement at age 67, based on thе average work-life expectancy of a then-62year old man. In its charge to the jury the court presented the issue of retirement age as one of disputed fact.
B. Remittitur
The $425,000 awarded for the loss of prospective earnings can be upheld only if the record contained evidence that plaintiff had the intention and ability to work past the age of 70, or, if not, could nonetheless have reasonably expected to receive an enormous — and unprecedented — increase in wages during the twilight years of his career as a deck hand. The record suрports neither proposition.
Accordingly, the court grants defendants’ motion for a remittitur.
See generally Shu-Tao Lin v. McDonnell Douglas Corp.,
II. Applicable Law
In this Jones Act case, federal law — that is, both judge-made general maritime law and federal statutory law — governs.
Pope & Talbot, Inc. v. Hawn,
As an aid to interpreting the liabilities and rights created by the federal admiralty and maritime compensation law, courts have frequently referred to the same general principles that underlie state tort law.
See, e.g., East River Steamship Corp. v. Transamerica Delaval, Inc.,
*1171
Reference to general principles embodied in state tort law is similarly appropriate in determining damage recoveries under federal law.
See, e.g., Jones & Laughlin Steel Corp. v. Pfeifer,
In a recent Jones Act case the trial court observed that “[djamages in tort cases are designed to provide reparation for the injury caused [because] the ‘cardinal principle of damages in Anglo-American law is that of
compensation
for the injury caused to plaintiff by defendant’s breach of duty.’ ”
Filkins v. McAllister Bros., Inc.,
Neither the Jones Act nor the FELA includes any reference to the items of damages that are recoverable. Even before Congress enacted the Jones Act in 1915, however, the Supreme Court had interpreted a wrongful death claim brought pursuant to the FELA to permit recovery
*1172
for damages that “flow from the deprivation of the pecuniary benefits which the beneficiaries might have reasonably received if the deceased had not died from his injuries.”
Michigan Central Railroad v. Vreeland,
III. Depletion of Work-Capital
“An injury that reduces the period of work-life expectancy deprives the worker of the value of work-capital.”
In re Joint Eastern and Southern Dist. Asbestos Litigation (Rummo v. Celotex Corp.),
Regardless of whether or not a plaintiff would have exercised the chоice to work as long as he could have, he or she is entitled to damages “measured by the extent to which [plaintiff’s] capacity for earnings has been reduced.” Restatement (Second) of Torts § 924 comment c.
See also
2 S. Speiser, C. Krause & A. Gans,
The American Law of Torts
§ 8:27, at 630. In effect, the “ ‘economic horizon of the [plaintiff] has been shortened because of the injuries.’ ”
Burke v. United States,
There is no requirement that an injured plaintiff even be employed at the time of the accident in order to recover for impairment of earning capacity.
See generally
2 S. Speiser, C. Krause, A. Gans,
The American Law of Torts
§ 8:27, at 644; J. Stein,
Damages and Recovery: Personal Injury and Death Actions
§§ 59, 63 (1972 & Supp.1989) (citing cases); Restatement (Second) of Torts § 924 comment c (1979).
See also Gault v. Monongahela Power Co.,
Earning capacity is determined by what a plaintiff
“could
have earned even if he or she never worked to that capacity in the past.” 2 M. Minzer, J. Nates, C. Kimball, D. Axelrod & R. Goldstein,
Damages in Tort Actions
§ 10.22[3][a] (citations omitted). As a California appellate court has observed, “[ijmpairment of the capacity or power to work is an injury separate from the actual loss of earnings.”
Hilliard v. A.H. Robins Co.,
This principle is most clearly illustrated by cases involving injured students, homemakers, and infants.
See, e.g., Feldman v. Allegheny Airlines, Inc.,
At most, some courts have required that the plaintiff have been
employable
or
potentially
employable, rather than actually employed at the time of the accident. For example, in
Espana v. United States,
The conceptual difference between the loss of earning capacity and the loss of actual wages is also illustrated by cases holding that the injured party is not barred from recovering for loss of earning capacity even if he or she earns as much as or more than before the injury.
See, e.g., Jones v. Wal-Mart Stores, Inc.,
Nor does the ability to recover for impaired earning capacity even where there is no actual wage loss necessarily undermine the doctrine of mitigation of damages. Under this doctrine, a Jones Act claimant, like other tort victims, has an obligation to mitigate damages where possible by finding other employment.
Williams v. United States,
In the case at bar, plaintiff’s announced plan, as testified to by defense witnesses, to retire at age 62, if it had been credited, would have been strong evidence of malingering. It could have shown that in fact he had not lost any of his work capital— e.g., the ability to earn money in the marketplace — and that he had refused or otherwise failed to mitigate his damages. It is clear, however, that the jury believed plaintiff to be completely disabled as a result of his accident, and thus exempt from the obligation to mitigate damages by continuing to work as a deck hand or by seeking other employment.
IV. Determining Work-Life Expectancy
Courts have varied in their approaches to calculating work-life expectancy. The Supreme Court, discussing the calculation of future loss of income in the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq., observed that
[t]he lost stream [of income’s] length cannot be known with certainty.... Given the complexity of trying to make an exact calculation, litigants frequently follow the relatively simple course of assuming that the worker would have continued to work up until a specific date certain.
Jones & Laughlin Steel Corp. v. Pfeifer,
In general “[t]he admissibility of evidence regarding future earning capacity is within the wide discretion of the trial judge.”
Oliveri v. Delta S.S. Lines, Inc.,
In the absence of a mandatory retirement policy, a wide range of evidence bearing on retirement is admissible in the discretion of the trial court. Evidence regarding the pre-accident intentions of the plaintiff is often highly probative.
See, e.g., O’Shea v. Riverway Towing Co.,
The weight given such testimony of a desire and ability to work long beyond the average is, of course, left to the trier of fact.
See, e.g., Kaylor v. Amerada Hess Corp.,
In circumstances where there is no particularized information regarding a plaintiff’s pre-accident intentions or other relevant characteristics, there appear to be no established rules in this circuit.
Compare, e.g., Zavattoni v. Interstate Express, Inc.,
No. 88-4718,
Statistical charts, such as the mortality tables and work-life expectancy tables prepared by the United States Department of Labor, compile averages and are often deemed authoritative, particularly in the absence of contradictory particularized evidence.
See, e.g., Madore v. Ingram Tank Ships, Inc.,
These tables are not binding on the fact finder.
See Espana v. United States,
In the instant case the issue of plaintiff’s retirement intentions was fully litigated. The jury obviously credited Earl’s testimony. Unfortunately, it went far beyond that which could reasonably be inferred from the evidence. Even when viewed in the light most favorable to the plaintiff, the record does not support an award bаsed upon a projected pre-accident work-life expectancy of 70 or more years— an assumption required by the jury award. Plaintiff’s own testimony contradicts his claim that a statistical work-life expectancy of a 62 year old man — that is, a work-life expectancy of age 67 — should be accepted. A retirement age of 65, on the other hand, has some support in the record and appears to be fair in view of all of the circumstances. It stretches the record as far as possible to favor the plaintiff and the jury’s award.
V. Calculating Damages
Once the injured victim рroves that he or she could have been gainfully employed, it is necessary to show with sufficient certainty the amount of damages. More is involved in computing the value of the diminution of work-capital “ ‘than comparing the amount earned before and after the injury.’ ”
Burke v. United States,
In determining damages for the diminution in the plaintiff’s earning capacity, courts have normally utilized an “oversimplified formula ... which seeks to determine what the [plaintiff’s] earnings would have been had he survived in good health, multiplied by [plaintiff’s] work life expectancy with the resultant dollar figure arrived at, then discounted to the present value.”
Connecticut National Bank v. Omi Corp.,
Earl was employed full-time before the accidents and there was no indication that he would or could have “retooled” at the age of 62 to go into a higher paying field. Any speculation that he might have been the beneficiary of an increase in wages is in effect cancelled out by the not-insubstantial possibility that he had never intended to work past age 62.
A. Computations
The reduced award was computed as follows, giving plaintiff every benefit of the doubt:
1) $105,000 was allowed for lost wages, based upon an average of $37,468.72 for five previous years, with a 25% agreed upon tax rate, making net loss of earnings $87,006.15. Fringe benefits were agreed on as $5,784.00 per year, or $17,908.15 for the three years and five weeks. The total *1177 is $104,914.30, rounded off to $105,000.00. There was no proof of increases in future wage rates. No allowance for discount was made because the judgment was entered after the probable date of retirement. No interest was sought for delayed payment, except as indicated in 3), below.
2) Pain and suffering and lost pleasure awards were exaggerated. An award of $100,000 for five years past is allowed. Assuming a possible additional life expectancy of 14 years аn additional amount of $280,000 is permitted. The total is $380,-000.
3) Maintenance and cure and interest factors were computed without objection at a rate most favorable to plaintiff in the sum of $40,000. This amount included past and future medical expenses.
See Kratzer v. Capital Marine Supply, Inc.,
The total award that could possibly be justified is $525,000.00. This sum seems excessive, but it allows maximum effect to the jury’s exceptionally sympathetic verdict for the plaintiff.
Conclusion
Unless plaintiff agrees to a remittitur to $525,000.00, a new trial is granted.
So ordered.