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September 20, 1979


The opinion of the court was delivered by: OBERDORFER


Plaintiff Raymond Washington brought this action under the Federal Employers' Liability Act, 45 U.S.C. ยง 51, Et seq. (1976) to recover for injuries suffered while riding in a truck in the course of his duties as a commissary clerk for Amtrak. Amtrak conceded its liability for any injuries proximately caused by the accident. The three-day trial related solely to the amount of damages. Plaintiff adduced evidence that at the time of the accident, he was earning an annual rate of up to $ 30,000 (including overtime) and that the accident totally disabled him. Defendant adduced evidence that the plaintiff was not totally disabled, exaggerated his injuries during medical examinations, was a malingerer, and, at a minimum, was capable of sedentary but gainful employment. The jury heard the evidence, arguments of counsel, the Court's instructions, and deliberated for about two hours before rendering a verdict for the plaintiff for $ 378,890.39. On August 9, judgment was entered on the verdict in that amount. *fn1"

 On August 16, defendants moved the Court to remit the judgment or, in the alternative, to grant a new trial, asserting that the verdict was contrary to the weight of the evidence and that the damages were excessive. Plaintiff opposed the motion. For the reasons set forth below, the Court denies defendant's motion and will permit the judgment to stand.

 The standard for the grant of a remittitur or for a new trial in this jurisdiction was set forth in Taylor v. Washington Terminal Co., 133 U.S.App.D.C. 110, 114, 409 F.2d 145, 149, Cert. denied, 396 U.S. 835, 90 S. Ct. 93, 24 L. Ed. 2d 85 (1969):

 133 U.S.App.D.C. at 149, 409 F.2d at 148-49, Quoting Frank v. Atlantic Greyhound Corp., 172 F. Supp. 190, 191 (D.D.C.1959) And Graling v. Reilly, 214 F. Supp. 234, 235 (D.D.C.1963) respectively. It has been the custom in this District for judges reviewing both denials of new trials and grants of remittiturs to perform general calculations based on the evidence to determine whether the verdict as rendered was "in the ballpark." See, e.g., Williams v. Steuart Motor Co., 161 U.S.App.D.C. 155, 167, 494 F.2d 1074, 1086 (testing denial of remittitur).

 Defendant claims both that the verdict is not supported by the weight of the evidence and that the amount of money damages awarded is grossly excessive. These two claims are in fact subspecies of the same assertion that the jury's verdict is not supportable by the evidence. See Taylor v. Washington Terminal Co., 133 U.S.App.D.C. at 113 n.13, 409 F.2d at 148 n.13. A review of the evidence adduced by both parties demonstrates that the defendant's claim cannot be supported.

 Dr. James Braden, plaintiff's treating physician who was recognized without objection as an expert in surgery, testified that the plaintiff could not perform the hard physical work that had been his task for a lifetime. Only one of the four medical experts who testified for the defendant, Dr. Charles H. Epps, expressed an opinion that Mr. Washington now suffers from no disability. Dr. Harold Stevens, who like Dr. Epps could find no objective sign of injury to the plaintiff, nonetheless testified that the plaintiff was qualified to do only light work.

 Further, defendant's medical experts, Dr. Epps and Dr. Stanislaw K. Toczek, and plaintiff's medical experts, Dr. Braden and Dr. Quraishi, all testified that Mr. Washington suffered from a degenerative arthritic condition of the back that could cause pain and impair mobility. Dr. Toczek testified that an injury may precipitate pain from a preexisting arthritic condition; Dr. Epps testified that a preexisting arthritic condition may increase a person's susceptibility to injury.

 Daniel B. Mauchline, who was qualified without objection as an expert in vocational rehabilitation, testified that if plaintiff could no longer perform heavy manual labor, he was "for all practical purposes" unemployable. Mr. Mauchline testified that he "could not conceive of any job in competitive industry" that the plaintiff could fill. The defendants offered evidence of jobs available to Mr. Washington that did not involve heavy labor. Dr. Daniel Sinick, defendant's vocational expert, who did not examine Mr. Washington, suggested that plaintiff could perform the tasks of a security guard or a parking lot attendant. Mark Meanier, Assistant Manager for Onboard Services for Amtrak, testified that Mr. Washington had sufficient seniority to obtain a position as an inventory accounting clerk, which would involve transferring figures from one form to another, or as an usher/gateman, which would entail reading train stops, answering passengers' questions, posting signs, and opening and closing the gate to the train platform. However, plaintiff adduced opinion evidence that plaintiff's limited (or non-existent) skills and physical disability made him unsuitable for such employment. The verdict is consistent with and is supported by evidence adduced by the plaintiff, and reflects a jury decision to reject or at least discount that advanced by the defendant with respect to plaintiff's job opportunities subsequent to his injury.

 Given the substantial body of evidence from which the jury might have inferred that defendant had caused him pain and suffering, and the opportunity afforded defendant to overcome it, the testimony of Mr. Washington's wife and son about the behavior of the plaintiff after the injury which was not objected to by defendant at trial was harmlessly cumulative, assuming Arguendo that it was not competent evidence on the issue of plaintiff's pain and suffering.

 Finally, the jury might have found both disability and pain and suffering from observing Mr. Washington's apparent difficulty and discomfort when defendant called him as a witness. When asked to take the stand, Mr. Washington stood with obvious difficulty and awkwardly climbed in and out of the witness chair, stumbling and appearing to fall. The jury could have discounted the performance as theatrics; or the jury could have observed his difficulties as graphic and demonstrative evidence of his disability and pain and suffering. The jury apparently decided on graphic evidence offered by defendant (the plaintiff hobbling to the witness stand) that the plaintiff was seriously disabled and had incurred injuries causing compensable pain and suffering.

 Defendants claim that whatever may have been the effect of the plaintiff's appearance on the jury, the "damage had been done" by errors committed prior to his appearance as defendant's witness. Specifically the defendants point to the cross-examination of their vocational expert, Dr. Daniel Sinick. At the outset of the cross-examination, plaintiff's counsel asked permission for Mr. Washington to walk up to the witness in full view of the jury. Before the Court could react, the plaintiff stood and took a tentative step toward the witness stand. Before he could take another step, the Court excused the jury. See Transcript attached as Appendix I. The Court finds that the impact on the jury of plaintiff's half step was cured by distraction of the jury's attention and thereafter rendered completely harmless by Mr. Washington's display when called by the defendant.

 The defendant also complains that the jury received improper demonstrative evidence of Mr. Washington's disability as a result of the Court's acquiescence in the plaintiff's request that Mr. Washington sit in the front row of the spectators' section (in full view of the jury) rather than behind the counsel table. The Court notes that counsel for the defendant offered no objection to this move when plaintiff's counsel represented that Mr. Washington would be more comfortable if he were seated on the wooden spectators' bench. Again, the jury observing Mr. Washington there could have concluded either that he was injured or that he was malingering. It apparently was persuaded of the former.

 On the question of the amount of damages, the jury had before it in evidence the plaintiff's annual pay in 1976 of $ 26,000, including overtime, and his projected annual pay in 1977 (based on two full months before his injury) of $ 30,000 (also including overtime). The jury also heard the testimony of Mr. Mauchline, who was also qualified as an expert in prevailing industrial wage rates, that the plaintiff could expect to receive annual wage increases of approximately 10%. In addition, plaintiffs offered the uncontroverted testimony of Louis J. Early, a member of the protective council of plaintiff's union, that Mr. Washington's normal retirement age was 70, so that his potential wage loss on ...

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