John GIZA, Appellee, v. BNSF RAILWAY COMPANY, Appellant.
No. 12-2023.
Supreme Court of Iowa.
Feb. 28, 2014.
MANSFIELD, Justice.
MANSFIELD, Justice.
This case involves a long-time employee of a railroad who suffered a knee injury as a result of the railroad’s negligence. Because of the injury, the employee was no longer able to work at his job. At the time of the injury, the employee was nearly fifty-nine, and he would have been eligible to retire on full benefits at age sixty. Indeed, he had previously checked the railroad’s website to determine the benefits he would receive if he retired at age sixty.
Following the injury, the employee sued the railroad in the Polk County District Court under the Federal Employers’ Liability Act (FELA). In the litigation, the employee claimed he had planned to work until age sixty-six and, on that basis, sought approximately $755,000in economic damages. To challenge this asserted retirement date, the railroad attempted to introduce evidence that the plaintiff was
Based on its reading of the federal col- lateral source rule applicable to FELA cases, the district court excluded the rail- road’s evidence. The jury subsequently awarded $1.25 million to the plaintiff in a general verdict covering both economic and noneconomic damages. The railroad appeals, arguing the district court’s read- ing of the federal collateral source rule in FELA cases was incorrect.
On our review, we agree with the rail- road in part. When a railroad employee makes a claim of lost earning capacity based on a hypothetical retirement age, we do not believe precludes federal law the introduction of statistical evidence as to when railroad workers in the plaintiffs position typically retire. Because this ex- cluded evidence was relevant and impor- tant to the railroad’s defense, we reverse and remand for a new trial on damages.
I. Facts and Procedural History.
John Giza was born in 1950. In 1969, after graduating from high school, he went to work in Crestón for the CV & Q Rail- road as a brakeman-switchman. Except for a stint in the Navy, Giza continued to work for the railroad, which eventually became part of BNSF, for the next forty years. 1978, Giza’s seniority enabled him to become a conductor. This meant he still had the physical job duties of a
brakeman-switchman but also had paperwork and supervisory responsibilities.
Giza’s everyday work required him to assemble and disassemble trains by gath- ering up railcars from customers and breaking them down for customers along a stretch of railroad between Creston and Shenandoah. Giza had to climb ladders, ride on moving railcars, walk railcars, re- lease and connect the “knuckles” between railcars, and walk on ballast.
On October 9, 2009, Giza was riding on the ladder of a railcar in the Red Oak yard as a locomotive was slowly pushing the railcar backwards. Giza was “protecting the point,” that is, he was watching the crossing toward which the car was being pushed while talking on a handheld radio with the locomotive’s engineer. Suddenly, Giza heard a bumping sound, indicating the train had derailed. Giza was thrown off the railcar and landed on his left foot. He instantly heard a pop in his left knee and felt excruciating pain.
Giza suffered a tear of his anterior cruciate ligament, a sprain of his medial collat- eral ligament, and a medial meniscal tear. Orthopedic surgery was performed on the knee on November 20, 2009. This was
Giza brought suit against BNSF under FELA. See 45 U.S.C. § 51 (2012).1 He
alleged that the railroad’s negligence caused his injuries. Although BNSF ini- tially disputed liability, by the time of trial, it had admitted fault and was only contest- ing damages.
Giza was nearly fifty-nine years old when the accident occurred. Giza sought recovery of lost earning capacity and loss of the value of household work services. Giza also requested damages for his pain and suffering.
Before trial, Giza acknowledged in deposition testimony that he was eligible to retire at age sixty on full pension, having worked at least thirty years for the rail- road. He had checked the railroad’s web- site before the accident to determine his estimated retirement benefits. However,
he testified that he personally had intend- ed to wait until age sixty-six to retire.
Giza’s expert, Dr. John Ward, esti- mated Giza’s lost earnings using the retire- ment age of sixty-six. His report initially stated, “Age 66 is the full benefit retire- ment age of all railroad workers born in 1950 as reported by the Railroad Retire- ment Board.” Later this was amended to read, “For persons born in 1950, age 66 is the age at which an individual may receive an unreduced benefit at retirement under the Social Security Act.”2
He estimated loss of income at approximately $755,000 for those seven years (fifty-nine to sixty- six) if Giza were not able to secure and maintain alternative employment.
BNSF’s expert, Mark Erwin, filed a re- port noting railroaders thirty or more years of service retire on average at age 60.7, and over sixty-two percent of them retire at age sixty. He also pointed out that railroad retirement benefits are
Before trial, Giza filed a motion in limine seeking to exclude (1) all evidence of the average age of retirement for railroad workers and (2) all evidence regarding po- tential railroad retirement benefits. The district court ultimately granted the mo- tion. Originally, the court said it would allow BNSF to show that Giza would be eligible to retire at age sixty but would not allow the railroad to go into the retirement benefits available to him. The court ex- plained that its ruling was based upon FELA caselaw.
Both sides took issue orally with this ruling. Upon further consideration of FELA precedents, the court ruled that BNSF could not go into a railroader’s retirement age, even without referring to benefits. The court also ruled BNSF could not introduce evidence that, prior to his injury, Giza had checked his retirement benefits on the BNSF website.
In his trial testimony, Giza reiterated that if he had not been injured, he planned to work until he was sixty-six. Dr. Ward testified he had calculated $755,000in lost income based on Giza’s statement that he intended to retire at age sixty-six. Dr. Ward acknowledged his statement in his
Q. Okay. Would you agree with me that a person, in making those types of decisions, are going to weigh the very factors that you outlined, weigh what benefits they would receive, what in- come they would earn, comparing that versus retirement versus employment to determine when to retire? A. That is correct. He would be weighing, basical- ly, earnings of approximately $106,000 a year, plus benefits of health insurance for he and his wife, versus what he would get by not working.
Q. [Y]ou would agree with me that it would be fair, and certainly economically supported, to look at what other people do in testing that testimony or that in- formation that you were provided by the Mr. Giza? A. I have no problem with that, no.
With the jury excused, BNSF asked the court to reconsider its ruling on the motion in limine, arguing:
[A]s the Court’s ruling stands right now, The court would also permit BNSF to make an offer of proof. In the offer of proof, BNSF introduced statistical and actuarial tables showing when railroaders usually retire.3
that the person has been precluded from doing anything to test Mr. Giza’s testi- mony that he would have retired at age 66. We have not been allowed to ex- plore the topic as to his understanding as to when he could retire. And we have not been allowed to explore the efforts that he undertook prior to this incident to evaluate and look at what benefits he would have received upon retirement. We have not been permit- ted to introduce evidence as to the sta- tistical or actuarial studies that would indicate when railroaders actually do re- tire, nor explore with either Dr. Ward or Mr. Giza as to what benefits he would have received upon—upon retirement. The court declined to reconsider its ruling but permitted BNSF to make an offer of proof.
In the offer of proof, BNSF introduced statistical and actuarial tables showing when railroaders usually retire. It also had Dr. Ward acknowledge that 62.1% of railroaders with thirty years of service re- tired at age sixty according to these data. Dr. Ward further admitted that railroad retirees generally have health insurance available upon retirement. In addition, BNSF introduced pages from Giza’s depo- sition and Erwin’s curriculum vitae and report.
Later, at the jury instruction conference, the court declined to give BNSF’s pro- posed instruction 36, which read:
You are not to award damages for any injury or condition from which the Plain- tiff may have suffered or may now be suffering unless it has been established, by a preponderance of the evidence in the case, that such injury or condition was caused by the accident in question.
The court ruled the instruction “at best is cumulative and unnecessary, at worst is confusing.”
If someone asked or wants to debate how do we know John was going to retire at age 66?....
Well, first of all, John Giza has always testified, when he talked to Mr. Thrall, when he talked to you, he’s always said that. And, again, 51 percent, but there is a lot more. Again, more than 51 percent. This is a job he worked very hard to get to. Forty years of seniority. This is the job he had chosen to work since they put it on because it was a steady job, five days a week steady. Now, he knew when he was going home, he got his weekends off. He’s making almost $96,000 a year at this job. This was the job that you work all those years for to get there. There is—no evidence has been—none—introduced in this trial there was anything in John Giza’s mind about retirement until age 66. Our burden has been met.
Giza’s counsel also said the following during rebuttal argument:
If someone wants to talk about, hey, the railroad admitted it’s their fault, they should get some credit for that, remind them that’s not the law. You cannot do that. You can only consider the harms and the losses that they have caused to Mr. Giza. There is a concept called the concept of repentance.
At this point, BNSF’s counsel objected, and a conference was held outside the presence of the jury. BNSF’s counsel ex- plained, “I can’t imagine that there would be proper closing arguments on repen- tance as part of this particular case.” The district court told Giza’s counsel to use other language and overruled BNSF’s mo- tion for mistrial. Giza’s counsel then re- sumed his rebuttal argument.
The jury returned a verdict of $1,250,000 for Giza. The district court denied BNSF’s motion for new trial. This appeal fol- lowed.
On appeal, BNSF raises five arguments. First, it contends it should have been able to introduce evidence that Giza would have been eligible to retire at age sixty with full retirement benefits. Second, it maintains it should have been able to introduce evi- dence of when railroad workers typically retire, without going into their retirement benefits. Third, it argues the district court should have granted a mistrial based on Giza’s improper “repentance” argu- ment. Fourth, it insists the jury’s verdict should have been overturned as a product of passion and prejudice. Finally, BNSF contends the district court erred in refus- ing to give its proposed jury instruction 36.
II. Standard of Review.
We review a district court’s evi- dentiary rulings for an abuse of discretion. Our Hall v. Jennie Edmundson Mem’l Hosp., 812 N.W.2d 681, 685 (Iowa 2012). “A court abuses its discretion when its ruling is based on grounds that are unreasonable or untenable.” In re Trust No. T-1 of Trimble, 826 N.W.2d 474, 482 (Iowa 2013). Therefore, under our abuse-of-discretion standard, “we will correct an erroneous application of the law.” Rowedder v. Anderson, 814 N.W.2d 585, 589 (Iowa 2012).
We have recently had occasion to be reminded that evidence of collateral benefits is readily subject to misuse by a jury. It has long been recognized that evidence showing that the defendant is insured creates a substantial likelihood of mis- use. Similarly, we must recognize that the petitioner’s receipt of collateral so- cial insurance benefits involves a sub- stantial likelihood of prejudicial impact. We hold therefore that the District Court properly excluded the evidence of disability payments.
III. Legal Analysis.
A. Eichel v. New York Central Railroad.
For the first two issues on appeal, both parties agree our starting point should be the United States Supreme Court’s decision in Eichel v. New York Central Railroad, 375 U.S. 253, 84 S.Ct. 316, 11 L.Ed.2d 307 (1963) (per curiam). Eichel, like the present case, was an action for negligence brought by a railroad em- ployee against his employer under FELA.4
Id. at 253, 84 S.Ct. at 316, 11 L.Ed.2d at 308. The railroad in Eichel had sought to introduce evidence that the employee was receiving a specific sum per month in dis- ability pension payments under the Rail- road Retirement Act. Id. This was offered “for the purpose of impeaching the testi- mony of [the employee] as to his motive for not returning to work and as to the permanency of his injuries.” Id. at 254, 84 S.Ct. at 316, 11 L.Ed.2d at 308. The district court excluded the evidence and the Supreme Court upheld this ruling. Id. at 254-56, 84 S.Ct. at 317, 11 L.Ed.2d at 308-09.
As the Court explained, that, under the In our view the likelihood of misuse by the jury clearly outweighs the value of this evidence. Insofar as the evidence bears on the issue of malingering, there will generally be other evidence having more probative value and involving less likelihood of prejudice than the receipt of a disability pension. Moreover, it would violate the spirit of the federal statutes if the receipt of disability bene- fits under the Railroad Retirement Act of 1937, 50 Stat. 309, as amended, 45 U.S.C.s 228b(a)(4), were considered as evidence of malingering by an employee asserting a claim under the Federal Employers’ Liability Act. Id. at 255, 84 S.Ct. at 317, 11 L.Ed.2d at 309 (footnotes and internal citations omit- ted).
In Snipes v. Chicago, Central & Pacific Railroad, we applied Eichel. See 484 N.W.2d 162, 166-67 (Iowa 1992). There we affirmed a district court’s refusal to admit evidence that an injured employee had received a monthly annuity under the Railroad Retirement Act (RRA). Id. As we put it, “The federal law is well settled that, under the FELA, the collateral source rule operates to prevent consider- ation of RRA disability pension payments in mitigation of damages suffered by an injured employee.” Id. at 166. We de- clined to consider the railroad’s policy ar- guments, noting that “our decision must be guided by federal case law.” Id. at 167.5
Strictly speaking, the retirement benefits involved here are not collateral source pay- ments. They are not paid on account of an injury, nor are they compensation for an injury. See Pexa v. Auto Owners Ins. Co., 686 N.W.2d 150, 156 (Iowa 2004) (“The collateral source rule is a common law rule of evidence that bars evidence of compen- sation received by an injured party from a collateral source.”); see also Schonberger v. Roberts, 456 N.W.2d 201, 202 (Iowa 1990) (“Under the collateral source rule a tortfeasor’s obligation to make restitution for an injury he or she caused is undimin- ished by any compensation received by the injured party from a collateral source.”). The railroad’s aim here is not to show that Giza is receiving other compensation, but to call into question his claim that he would have worked until he was sixty-six if he had not been injured.
Having said that, some intermediate state appellate courts following Eichel have refused to allow evidence of the avail- ability of railroad retirement benefits even for this purpose. In Griesser v. National Railroad Passenger Corp., the Pennsylva- nia Superior Court held Amtrak could not introduce evidence that its employee would be eligible to retire at age sixty with full pension benefits to counter an expert cal- culation of lost earning capacity based on that testimony. See 761 A.2d 606, 612-13 (Pa.Super.Ct.2000). The court acknowl- edged:
“The instant case presents a more attenu- ated link between the injury and the bene- fits at issue. The benefits at issue are future retirement pension benefits and not current disability benefits. Thus, the ben- efits are not related to the injury.” Id. at 610. Nonetheless, the Pennsylvania court warned of “the danger that the jury would use this evidence for the improper purpose of mitigating Appellant’s damages or re- ducing Amtrak’s liability.” Id. at 613.
Likewise, in Norfolk Southern Railway v. Tiller, the Maryland Court of Special Appeals held a trial court correctly refused to let a railroad show an injured employee would have been eligible to retire at age sixty, notwithstanding the employee’s tes- timony that he planned to retire at age sixty-five. See 179 Md.App. 318, 944 A.2d 1272, 1274-75, 1286 (2008). The court rea- soned the situation was covered by Eichel: “The use the defendant railroad sought to make of the disability pension bene- fits in Eichel was closely analogous to the use Norfolk Southern sought to make of the future pension benefits in this case. The New York Central was trying to show that the injured employee in that case had a motive not to go back to work because he was then collecting disability pension benefits. Norfolk Southern was trying to show that Tiller would have had a motive for not continu- ing to work past age 60 because he could then have been collecting retirement pension benefits. In each case, the mo- tive not to work because of benefits as an alternative to work was the same. We do not see the difference in the tenses as compelling a different result. Id. at 1281.”
One can debate this point. The defen- dant’s goal in introducing the disability payments in Eichel was to show the plain- tiff was not injured as badly as he claimed and was not motivated to go back to work. Yet as the Supreme Court noted, “[O]n the issue of malingering, there will generally be other evidence having more probative value and involving less likelihood of preju- dice than the receipt of a disability pen- sion.” Eichel, 375 U.S. at 255, 84 S.Ct. at 317, 11 L.Ed.2d at 309. Moreover, there is a significant danger of prejudice when the jury learns the plaintiff is receiving other compensation for the same injuries for which he is seeking compensation. By
Nonetheless, in Griesser, the Pennsylva- nia Superior Court remained concerned “the jury could conclude that [the railroad] was liable for lost wages to age 65 or 70, but then decline to award such damages because of the fortuitous existence of equivalent retirement benefits.” 761 A.2d at 612. Otherwise stated, the concern ap- pears to be that the jury, notwithstanding any limiting instruction, would: (1) believe the plaintiffs testimony he intended to re- tire at age sixty-five; (2) assume the plain- tiff now can retire at age sixty; and (3) therefore award the plaintiff less than the full lost wages through age sixty-five by offsetting some amount for the retirement benefits available at age sixty.
Of course, the jury would have no rea- son to conclude the retirement benefits were “equivalent” (and the record in this case indicates they are not) without evi- dence as to their amount.7 Also, the same potential prejudice noted in Griesser can arise in any case where a plaintiff seeks damages for loss of future earning capacity beyond a possible retirement date; it is not limited to railroad cases.
Some courts have therefore held that Eichel allows railroads to introduce evi- dence of when their employees are eligible to retire. See, e.g., Cowden v. BNSF Ry., — F.Supp.2d —, 2013 WL 5838718 (E.D.Mo.2013). In Cowden, a railroad em- ployee brought an action against the rail- road under FELA to recover damages for his injuries sustained in a rail accident. Id. at —, 2013 WL 5838718 at *1. Relying on Griesser, the plaintiff sought to “exclude any suggestion that, had he not been injured, he could have retired with benefits at the age of 60.” Id. at —, 2013 WL 5838718 at *16. While the court agreed the defendant could not “introduce evidence regarding the availability or
BNSF argues that, at a minimum, it should have been able to introduce statisti- cal data showing railroad employees with thirty years of service tend to retire at age sixty. The highest court in Maryland has agreed with this position. In CSX Trans- portation, Inc. v. Pitts, decided after the trial in this case, the Maryland Court of Appeals distinguished Tiller and held that “although retirement eligibility informa- tion in a FELA case is barred by the collateral source rule, statistics about aver- age retirement age for railroad workers is not.” 430 Md. 431, 61 A.3d 767, 791 (2013). The court elaborated:
Use of industry statistics about aver- age retirement age in this context is not evidence of other compensation the plaintiff would receive for the same damage, but rather, evidence that shows
that the full amount of lost wages claimed by the plaintiff may not exist. In other words, the tables may cast doubt on a plaintiffs statement that he would work until a certain age, and thus sug- gest to the fact-finder that the lost wage claim was exaggerated....
Although the collateral source rule bars evidence of disability and retire- ment benefits, a defendant railroad should not be defenseless against the plaintiff’s “1-2 combo”—self-serving tes- timony about his retirement plans and expert projections about damages based on that testimony. Moreover, it would be unfair to allow the plaintiff to clothe his own prediction about his retirement date with the protective folds of the economist’s projections about damages, while denying the defendant the right to use cross-examination to cast legitimate doubt on the assumption made by that economist that the claimant would retire at age 68.
Of course, the jury would have to rea- sonably conclude from the data that employees similar to the plaintiff typical- ly retire earlier. The court therefore held that the defendant could “offer evidence that Plaintiff was ‘eligible to retire’ at the age of 60.” Id. In Cowden, the railroad could “exclude any suggestion that, had he not been injured, he could have retired with benefits at the age of 60.” Id.
Payton, 405 S.W.3d at 7. The court added that “statistics discussing an individual’s projected date of retirement, or worklife expectancy, have been widely held to be relevant when future wage loss is at issue.” Id. at 791 (citing cases). The court concluded that the trial court did not have the discretion to exclude evidence relating to railroad work-life expectancy tables, although it af- firmed the verdict because the railroad did not ask the right questions. Id. at 794.
These kinds of statistical data also have been found admissible in the analogous Jones Act context. See, e.g., Madore v. Ingram Tank Ships, Inc., 732 F.2d 475, 478 (5th Cir.1984). In Madore, the court found fault with the district court’s conclu- sion that a disabled seaman was going to retire at age sixty-five when the parties’ experts both estimated he would retire approximately five years before that based on Department of Labor work-life expec- tancy rates. Id. The court noted evidence may show “a particular person, by virtue of his health or occupation or other factors, is likely to live and work a longer, or shorter, period than the average.” Id.; see also Earl v. Bouchard Transp. Co., 735 F.Supp. 1167, 1175 (E.D.N.Y.1990) (ob- serving in a Jones Act case that “[s]tatis- tical 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 [in determining work-life ex- pectancy], particularly in the absence of contradictory particularized evidence.”),
aff’d in part, rev’d in part, and remanded, 917 F.2d 1320 (2d Cir.1990).
When considering lost earning capacity claims in other contexts, courts have found average retirement ages to be relevant and admissible. See, e.g., Boucher v. U.S. Su- zuki Motor Corp., 73 F.3d 18, 20, 23 (2d Cir.1996) (holding the trial court did not abuse its discretion when it allowed the defendant’s expert in an employee’s suit against his employer for damages related to a work injury to present pre and post- injury work-life expectancy testimony based on widely accepted work-life tables published by the Department of Labor and his expertise in vocational rehabilitation”); Weil v. Seltzer, 873 F.2d 1453, 1465 (D.C.Cir.1989) (noting a defendant, in re- sponse to a plaintiffs “self-serving testimo- ny ... concerning the anticipated work-life expectancy of the decedent,” may “produce his own expert to offer a contrary opinion on [the decedent’s] work-life expectancy or he may offer the Department of Labor statistics into evidence and request the expert to base his opinion on the work-life expectancy contained in the Department of Labor’s table”); Finch v. Hercules, Inc., 941 F.Supp. 1395, 1416 (D.Del.1996) (hold- ing in a wrongful termination case that the defendant could present statistical evi- dence as to when its average employee retires); but see Burrows v. Union Pac. R.R., 218 S.W.3d 527, 540 (Mo.Ct.App.2007) (holding that the trial court did not abuse its discretion in disallowing testimo- ny about the average retirement age of Union Pacific machine operators because it “would not prove or disprove when Plain- tiff himself planned to retire”).
On our review, we agree with the line drawn by the Maryland Court of Appeals in Pitts. Eichel does not extend so far as to bar the railroad from introducing evi- dence as to when railroad workers with certain levels of experience typically retire. These data are several steps removed from the disability benefits that the Supreme Court ruled inadmissible in Eichel. Fur- thermore, the entire point of Eichel is to prevent unfairness. Yet it is basically un- fair for the railroad to be “defenseless,” Pitts, 61 A.3d at 792, in the face of an
Giza argues with some force that juries know how to connect the dots, so a jury reading BNSF’s exhibits could reach the conclusion that railroad employees like Giza are able to retire and start receiving pensions at age sixty. Nonetheless, we agree with the Maryland Court of Appeals that the alternative could leave the rail- road without a realistic way to challenge the testimony of the plaintiff and the plain- tiff’s damages expert. See id. Again, most jurors participate in the Social Secu- rity system, where full benefits come later in life than age sixty, and in the absence of other evidence would likely assume that Giza’s assertion he planned to retire at age sixty-six was entirely typical and unexcep- tional—even though it isn’t.
No one disputes that when Giza would have retired if he hadn’t been injured is highly relevant to his claim for lost earning capacity. And as Dr. Ward himself con- ceded in his testimony, to determine when someone is likely to retire, we would want to look at when other people retire.11
For the foregoing reasons, we hold Eichel does not bar the introduction of evidence as to when railroad employees with thirty years of service typically retire so long as the evidence does not directly or indirectly refer to retirement benefits. We doubt a jury will be improperly influ- enced by learning of the typical retirement age, when details concerning the pension are not disclosed. On the other hand,
keeping this information from jurors could create a false impression while leaving no practical way for the railroad to challenge a plaintiffs claimed anticipated retirement date.
In any event, BNSF argues that, at a minimum, it should have been able to introduce statisti- cal data showing railroad employees with thirty years of service tend to retire at age sixty. The highest court in Maryland has agreed with this position. In CSX Trans- portation, Inc. v. Pitts, decided after the trial in this case, the Maryland Court of Appeals distinguished Tiller and held that “although retirement eligibility informa- tion in a FELA case is barred by the collateral source rule, statistics about aver- age retirement age for railroad workers is not.” 430 Md. 431, 61 A.3d 767, 791 (2013). The court elaborated:
Use of industry statistics about aver- age retirement age in this context is not evidence of other compensation the plaintiff would receive for the same damage, but rather, evidence that shows
that the full amount of lost wages claimed by the plaintiff may not exist. In other words, the tables may cast doubt on a plaintiffs statement that he would work until a certain age, and thus sug- gest to the fact-finder that the lost wage claim was exaggerated....
Although the collateral source rule bars evidence of disability and retire- ment benefits, a defendant railroad should not be defenseless against the plaintiff’s “1-2 combo”—self-serving tes- timony about his retirement plans and expert projections about damages based on that testimony. Moreover, it would be unfair to allow the plaintiff to clothe his own prediction about his retirement date with the protective folds of the economist’s projections about damages, while denying the defendant the right to use cross-examination to cast legitimate doubt on the assumption made by that economist that the claimant would retire at age 68.
Of course, the jury would have to rea- sonably conclude from the data that employees similar to the plaintiff typical- ly retire earlier. The court therefore held that the defendant could “offer evidence that Plaintiff was ‘eligible to retire’ at the age of 60.” Id. In Cowden, the railroad could “exclude any suggestion that, had he not been injured, he could have retired with benefits at the age of 60.” Id.
You must award the plaintiff such sum as you find will fairly and justly compen- sate the plaintiff for any damages you find the plaintiff sustained and is reason- ably certain to sustain in the future as a
direct result of the occurrence men- tioned in the evidence. See 8th Cir. Civil Jury Instr. § 7.06A (2011) (“F.E.L.A. Damages—Injury to Employee”). The district court also sup- plemented that instruction with the follow- ing: “[T]hroughout your deliberations you must not engage in any speculation, guess, or conjecture and you must not award any damages by way of punishment or through sympathy.” The Eighth Circuit’s manual says this language “may also be added.” Id. n. 7.
BNSF argues these instructions never told the jury that Giza bore the burden of proof on damages. However, we believe this concept was adequately conveyed by the instructions taken as a whole. See Kiesau v. Bantz, 686 N.W.2d 164, 175 (Iowa 2004) (“The jury must con- sider the instructions as a whole, and if the instructions do not mislead the jury, there is no reversible error.”). The district court gave a general instruction that “[w]henever a party must prove something they must do so by the preponderance of the evidence.” The court also gave a miti- gation of damages instruction that made it clear the defendant bore the burden of proof on that issue—the implication being that the plaintiff bore the burden of proof on other matters. Additionally, Giza’s counsel repeatedly advised the jury during closing argument that Giza had the burden of proof on the remaining damage issues (while asserting Giza had met that bur- den). “If the concept behind the request- ed instruction is embodied in other in- structions, the district court may properly reject the proposed instruction.” Craw- ford v. Yotty, 828 N.W.2d 295, 298 (Iowa 2013) (internal quotation marks omitted). We find no error.
IV. Conclusion.
For the foregoing reasons, we reverse the judgment of the district court and
remand for a new trial. The new trial, like the first trial, should be limited to the question of damages.
REVERSED AND REMANDED.
Alljustices concur except HECHT, J., who takes no part.
REVERSED AND REMANDED.