# Petition for Writ of Certiorari — Kansas City Southern Railway Co. v. Giddens

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2001
- **Citation:** 532 U.S. 990

## Text

og Suoreme Court, U.S.

Y)
001286FEB 9 2001
No.

IN THE
Supreme Court of the Anited States

THE KANSAS CITY SOUTHERN RAILWAY COMPANY,
Petitioner,

V.

GARRY V. GIDDENS,
Respondent.

On Petition for a Writ of Certiorari
to the Supreme Court of Missouri

PETITION FOR WRIT OF CERTIORARI

HARLAN D. BURKHEAD*

TODD E. HILTON

LATHROP & GAGE L.C.

2345 Grand Boulevard, Suite 2500
Kansas City, Missouri 64108
(816) 292-2000

*Counsel of Record Counsel for Petitioner

eh CR A TOT ANORN TRON TS IDM CON MERION CREE GRAMS COLNE ye
WILSON-EPES PRINTING CO., INC. — (202) 789-0096 -— WASHINGTON, D. C. 20001

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QUESTIONS PRESENTED

1. Whether a jury, which had heard a FELA plaintiff's
evidence that he had earnings loss damages of over
$1,000,000, should have been prevented from hearing the
railroad’s evidence that (a) the plaintiff was already receiving
disability benefits of over $18,000 annually, 76.6% of which
had been funded by the railroad, and (b) the plaintiff was de-
motivated to mitigate his earnings loss by finding gainful
employment because such earnings would decrease his
disability benefits.

Alternatively, if the jury was properly precluded by law
from hearing relevant evidence of the true extent of the
plaintiff's net earnings loss, whether the railroad should have
been granted an offset against the jury’s $1,520,000 verdict in
the amount of the present value of such benefits, so that the
plaintiff not receive a windfall double recovery.

2. Whether a state court may promulgate a jury
instruction and verdict form for FELA pure comparative
negligence cases against a railroad materially different from
the jury instruction and verdict form promulgated for pure
comparative negligence actions against all other citizens of
the state.

Correspondingly, whether a state court’s FELA verdict
form, materially different from the verdict form promulgated
for all other pure comparative negligence cases, which
precludes meaningful review of whether a verdict in an FELA
case is against the weight of the evidence denies due process
and equal protection of the laws to railroads.

(i)

ii
LIST OF PARTIES AND
CORPORATE DISCLOSURE STATEMENT

The parties to this proceeding are the petitioner-defendant,
The Kansas City Southern Railway Company and _ the
respondent-plaintiff, Garry Vance Giddens.

The Kansas City Southern Railway Company is a wholly-
owned subsidiary of Kansas City Southern Lines, Inc., which
is a wholly-owned subsidiary of Kansas City Southern
Industries, Inc., which is publicly held.

TABLE OF CONTENTS

QUESTIONS PRESENTED...........cccsccssessecsesscssconssesseoes

LIST OF PARTIES AND CORPORATE DIS-
CLOSURE STATEMENT..........cccccccssscessessesessssenseces

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Peete clssccisseseseresecessceese....

CONSTITUTIONAL PROVISIONS & STATUTE
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1. Legal precedent and case facts material to
exclusion of respondent’s receipt of Railroad
Retirement Act (“RRA”) benefits.......................
Ne een ccccscsecssseces
B. The law qualifying a railroad employee to

apply for RRA benefits.............cccccccccecesseees
C. Facts as to how Giddens accrued his 20
i
D. Evidence received and excluded on
Giddens’ earnings loss damages.................

2. Legal precedent and procedural facts material
to consideration of whether the State of
Missouri’s requiring different forms of verdicts
in pure comparative negligence cases (a)
against railroads and (b) against any other
citizen defendant frustrates railroads’ rights to
meaningful review of jury verdicts and
constitutes denial of equal protection of the
eR still ristetatenssssccsnesecenccesccesocececesecesececeene
A. The different forms of instructions and

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B. Facts material to consideration of the
issue Of Giddens’ fault ............c.ccccccececeseceeee

(iii)

iV
TABLE OF CONTENTS—Continued

REASONS FOR GRANTING THE PETITION ........... 8

I. The Writ Should Be Allowed In Order To
Resolve A Split Among The Circuits And State
Supreme Courts And To Allow For The First
Time Ever Before This Court Full Briefing,
Argument And Consideration Of (A) Whether
RRA Benefits Are From A “Collateral Source”’,
And (B) Whether There Should Be A Per Se
Rule Excluding The Receipt Of Such Evidence
Or Whether Such Ruling Should Be Left To
Trial Court Discretion As -Are Other
Evidentiary Matters Under Rule 403, Federal
Rules Of Evidence And State Court Rules Of
OVER nsncsiinnignnnceneipesgccasinitiidanieuitiamiiaiinmiiniciiiinsisiiais 8

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B. Whether RRA _ benefits should be
admissible in evidence in a FELA trial for
purposes other than as an offset to
damages should be expressly left to trial
court discretion and not be a matter of per
B08 CHD GRRE sicstnnssnisianiinsinlisinpibtiialinaiaaiti 12

C. There is conflict among the Circuits and
state courts of highest resort as to the
important federal question presented by
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26a

Giddens’ deposition testimony, such did not result in
prejudice to the defendant overlooks the material matter of
fact that the plaintiff’s testimony here as to the defendant’s
alleged negligent conduct contributing to cause his injury was
largely uncorroborated and thus was subject to only the same
“guarantee of trustworthiness” (i.e. Mr. Giddens’ truthful-
ness) as Mr. Giddens’ testimony as to the extent of his
injuries. That the finder of fact in this case, the jury, was not
allowed to hear Mr. Giddens’ sworn deposition testimony,
which was clearly relevant and material and admissible under
Rule 57.07 and the other authorities cited, did result in
substantial prejudice to the Kansas City Southern. The finder
of fact was prevented from hearing and considering that a
person who, at the time of giving his sworn deposition
testimony, was prepared to lie to them as to the extent of his
injuries would be just as inclined to lie as to the cause of his
injuries. This is not a matter of the appellant’s being deprived
of “the opportunity for some jury justice that would not have
been legally irrelevant to the real issues in the case,”
Concurring Opinion p. 6, it is a matter that the appellant was
denied the opportunity for jury justice period.

3. Ten years ago, prior to the amendment to Rule
56.01(b)(3), making surveillance materials discoverable as a
“statement” of the plaintiff, Mr. Giddens would have come
into this courtroom and testified exactly as he did in his
deposition, which was excluded. Defendant would then have
shown the videotape clearly establishing the falsity of that
testimony. Mr. Giddens, had he received any verdict whatso-
ever at the hands of the jury, would surely not have received
$1,520,000. Again, this is not “jury justice” on an irrelevant
issue, unless truth in the courtroom is irrelevant and the right
to test and impeach testimony is no longer relevant in the
adversarial system. This does not indicate progress in the law.

27a

With respect to the excessiveness of the verdict and judgment
(Per Curiam Op. 13-16):

4. In holding (Per Curiam Opinion p. 14): “The errors
specifically alleged have not been found to be meritorious;
therefore, they cannot serve as a predicate for a finding of
excessiveness of the verdict,” the Per Curiam Opinion
overlooks the fact that the Per Curiam Opinion did find that
the specification of error pertaining to the seasonability of the
supplementation of discovery responses and the trial court’s
erroneous imposition of sanctions was meritorious. The Per
Curiam Opinion merely dismisses such meritorious
specification of error as being non-prejudicial.

5. The Opinion further overlooks and misinterprets
existing law in that, in order for an appellate court to find
excessiveness of verdict the irregularity occurring at trial
need not rise to the level of reversible error standing by itself.
It need only be an “error or occurrence sufficient to incite
prejudice.” Smith v. Archbishop of St. Louis, 632 S.W.2d 516
(Mo. App. 1982):

To successfully claim that the award is so excessive as to
show jury prejudice defendant must present evidence of
some error or occurrence at trial sufficient to incite
prejudice. /d. at 524. (Emphasis added)

With respect to the specification of error that the jury was
wrongfully instructed with respect to its damage
determinations (16-19):

6. The Opinion itself, when it states “While the jury award
of $1,520,000 based on this evidence was generous,
particularly /F the jury found Giddens to be contributorily at
fault to a substantial degree. . . .” proves the very point which
Kansas City Southern attempted to make in this case. This
Court does not know what the jury found regarding Mr.
Giddens’ fault. Neither did the Court of Appeals. Neither did
the trial court. The reason they did not is the erroneous MAI
damage instruction given to them by the trial court.

28a

The Per Curiam Opinion says, p. 17, that the appellant
abandoned this point by not explaining for the trial court how
MAI unconstitutionally discriminates against railroads. This
issue was “explained” and argued thoroughly to the trial
court, more off the record than on. That is why, when the trial
court went on the record to record the instructions, the court
said: “All right. I want to go, finally over the instructions on
the record.” (emphasis added) (Tr. 565).

Even in the very brief record made, counsel for appellant,
objected on the record to the jury instructions which are
peculiar under MAI to Federal Employers’ Liability Act
cases, only i.e.:

Defendant objects to the form. We will concede that this
adheres to proper MAI format. We object because we
believe MAI unconstitutionally discriminates against
railroads by instructing in FELA cases differently than in
other similar comparative fault cases. (Tr. 566)

And then further, specifically with respect to MAI 8.02,
counsel for appellant stated: “We think (8.02) ought to be
modified as per other comparative fault cases.” (Tr. 568)
True, the words “equal protection” do not appear of record.
However, we respectfully submit that what “equal protection”
is all about is equal treatment of citizens under the law which,
the MAI instructional scheme is not.

We respectfully disagree with the Court’s comment, Per
Curiam Op. 19: “Here, however, KCS has not identified any
way in which Missouri is discriminating disadvantageously
against acts of negligence under FELA.” What the Missouri
instructional scheme for FELA cases does, by not requiring
the jury to state percentages of fault which it has found,
effectively thwarts meaningful review of a jury’s verdict
either by a trial court or an appellate court. It thus does, in the
most fundamental sense, “discriminate disadvantageously”
against the KCS and railroads. That this Court did not know

29a

what the jury found is clearly established from the Court’s
Opinion, Per Curiam Op. P. 15, “While the jury award of
$1,520,000 based on this evidence was generous, particularly
IF the jury found Giddens to be contributorily at fault to a
substantial degree, . . .” (emphasis added) establishes that
neither this Court nor the trial court could know “if,” because
of the instructional scheme which does discriminate
disadvantageously against KCS and all railroads in FELA
trials. The Opinion thus overlooks material matters of fact,
law and the briefing before it in this regard. —

With respect to the specification of error that the jury should
have been allowed to know that Mr. Giddens was receiving a
Railroad Retirement Board disability pension funded by this
defendant (Per Curiam Op. 19-20):

7. The Per Curiarn Opinion. p. 20, dismisses this
contention under “the law of the case doctrine.” True. this
matter was determined unfavorably to the KCS in the
plaintiff's appeal of this case. Giddens v. Kansas City
Southern Ry. Co., 937 S.W.2d 300, 305 (Mo. App. 1996).
However, this version of Giddens was an opinion of the
Missouri Court of Appeals. The Missouri Supreme Court is
not bound, under the law of the case doctrine, by an opinion
of a lower court.

CONCLUSION

The jury in this case, the fact finder, was prevented from
hearing impeachment fact evidence which had a direct,
substantial and prejudicial effect on its excessive verdict.
Thus, the jury, for no good, but erroneous, reasons, was
operating partly in the dark. Similarly, when it came time for
the trial court, the Court of Appeals and this Court to attempt
to review the propriety of the jury’s verdict, all of these courts
were preciuded from meaningful review by reason of the fact
that none of the courts has any idea of what percentages of
fault were found or what total damages the jury assessed.

30a

This is because of an unconstitutionally defective instruc-
tional scheme applicable only in Federal Employers’ Liability
Act cases, which “discriminates disadvantageously” against
railroads because they are effectively denied their right of
judicial review of a jury’s verdict. Thus, in certain material
respects, the jury did not know, and in other material respects,
the reviewing courts do not know. Justice this blind is no
justice at all.

Respectfully submitted

LATHROP & GAGE L.C.

/s/ Harlan D. Burkhead
HARLAN D. BURKHEAD #22239
2345 Grand Boulevard
Kansas City, MO 64018
(816) 292-2000 FAX: 292-2001

An Attomey for Defendant/Appellant

3la

APPENDIX C
TRANSCRIPT OF PROCEEDINGS
DEPOSITION TESTIMONY, 7/3/97, Ex. 89

Q. Your home there in Pollock, do you do your yard
work there?

A. My kids do.

Q. You don’t do any of it or do you do some of it?

A. I try to get out of all of it. I have to supervise, make
sure—because they’re still young, but they do it.

TRIAL TESTIMONY, 1/21/98, Tr. 399, et seg.

Q. Do you do yard work now?
A. Yes, sir, [can do my yard work.
* * * *

DEPOSITION TESTIMONY, 7/3/97, Ex. 89

Q. Can you rake?

A. Not really good. I can prop it on this hand and do like
that, but we don’t rake the yard anyway.
TRIAL TESTIMONY, 1/21/98, Tr. 399, et seq.

Q. Can you rake?

A. Ican.
i. a a.

DEPOSITION TESTIMONY, 7/3/97, Ex. 89
Q. Can you sweep, for instance, with your—
A. I sweep with my right hand.

TRIAL TESTIMONY, 1.21.98, Tr. 399, et seg.

Q. Can you sweep?
A. Yes, sir.

* * * *

DEPOSITION TESTIMONY, 7/3/97, Ex. 89

Q. Can you twist things with your left hand?
A. No. Like a jar or something?

- 32a

Q. Right.
A. No. Ihave to use my right hand to open it.

TRIAL TESTIMONY, 1/21/98, Tr. 399, et seq.
Q. Can you twist with your left hand?
A. CanI twist? To a degree yes. My wrist, yes.
* * * *

DEPOSITION TESTIMONY, 7/3/87, Ex. 89

Q. Can you use your left hand, for instance, to break
things like if you were breaking a stick between your left and
right hand?

A. No.

TRIAL TESTIMONY, 1/21/98, Tr. 399, et seq.

Q. Can you go out and break sticks?
A. Ican break with my right hand. I can hold them to a
degree, with these fingers, in my left, yes.
* * * *

DEPOSITION TESTIMONY, 7/3/97, Ex. 89

Q. Can you carry limbs in your left hand?
A. I pull them with my right hand. I might if they’re
little ones. I could stack them in my arm.

TRIAL TESTIMONY, 1/21/98, Tr. 399, et seq.

Q. Do you carry limbs?
A. Ican carry limbs.

* * * *

DEPOSITION TESTIMONY, 7/3/97, Ex. 89

Q. Like if you’re picking up trash and throwing it, could
you throw it with your left hand?

A. No, I don’t—I don’t know.

TRIAL TESTIMONY, 1/21/98, Tr. 399, et seq.
Q. Have you thrown trash?

33a

A. I can throw trash. I can do any of that. You know, as
long as I don’t overload myself, I can do just about any of

that, yes.
* * * *

DEPOSITION TESTIMONY, 7/3/97, Ex. 89
Q. Are you abie to use your left hand to pull things?
A. No, sir.

TRIAL TESTIMONY, 1/21/98, Tr. 399, et seq.

Q. Can you pull on things?
A. Ican.

* * * *

DEPOSITION TESTIMONY, 7/3/97, Ex. 89
Q. Can you use it to hold things and carry things?
A. No, sir.
TRIAL TESTIMONY, 1/21/98, Tr. 399, et seq.
Q. Can you carry things? :
A. Toacertain weight, yes.
* * * *
DEPOSITION TESTIMONY, 7/3/97, Ex. 89
Q. Can you, for instance, push a lawn mower?
A. If—Ican push a little bit with my right hand.
TRIAL TESTIMONY, 1/21/98, Tr. 399, et seq.

Q. Can you push?
A. Yes.

34a .
APPENDIX D

[Logo]

CLERK OF THE SUPREME COURT
STATE OF MISSOURI
POST OFFICE BOX 150
JEFERSON CITY, MISSOURI 65102

THOMAS F. SIMON TELEPHONE
CLERK (573) 751-4144

November 14, 2000

Mr. Harlan D. Burkhead
Suite 2800

2345 Grand Boulevard
Kansas City, MO 64108-2684

In Re: Garry V. Giddens vs. The Kansas City Southern

Railway Company Missouri Supreme Court No.
SC82602

Dear Mr. Burkhead:

Please be advised that the Court entered the following order
on this date in the above-entitled cause:

“Appellant’s motion for rehearing overruled. Price, C.J.,
and Holstein, J., not participating.”

Very truly yours,
THOMAS F. SIMON

/s/ Cynthia L. Turley
CYNTHIA L. TURLEY
Deputy Clerk, Court en Banc
cc:
Mr. Patrick S. O’Brien

35a
APPENDIX E

INSTRUCTION NO. 10

If you find in favor of plaintiff, then you must award
plaintiff such sum as you believe will fairly and justly
compensate plaintiff for any damages you believe plaintiff
sustained and is reasonably certain to sustain in the future as a
result of the occurrence mentioned in the evidence. Any
award of future pecuniary damages must be included at
present value. Any award you make is not subject to income
tax. If you find that plaintiff failed to mitigate damages as
submitted in Instruction Number 8, in determining plaintiff’s
total damages you must not include those damages which
would not have occurred without such failure. If you find
plaintiff contributorily negligent as submitted in Instruction
Number 7, then your award must be determined by
diminishing plaintiff's total damages in proportion to the
amount of negligence attributable to plaintiff.

MAI 8.02 [1996 Revision]
Submitted by plaintiff Garry Giddens

36a
APPENDIX F
VERDICT

NOTE: Complete this form by writing in the name required
by your verdict.

On the claim of plaintiff Garry Giddens for personal
injuries against defendant Kansas City Southern Railway
Company, we, the undersigned jurors, find in favor of:

(Plaintiff Garry Giddens) or (Defendant Kansas City Southern Railway Company)

NOTE: Complete the following paragraph only if the above
finding is in favor of plaintiff Garry Giddens.

We, the undersigned jurors, assess the damages of plaintiff
Garry Giddens at $ (stating the amount).

NOTE: All jurors who agree to the above must sign below:

MAI 36.01 [1980 Revision]
Submitted by plaintiff Garry Giddens

37a
APPENDIX G

DEFENDANT’S INSTRUCTION CC

If you assess a percentage of fault to defendant in Verdict
A, then, disregarding any fault on the part of plaintiff, you
must determine the total amount of plaintiff’s damages to be
such sum as will fairly and justly compensate plaintiff for any
damages you believe he sustained and is reasonably certain to
sustain in the future as a result of the accident mentioned in
the evidence. Any award of future pecuniary damages must
be included at present value. Any award you make is not
subject to income tax. You must state the total amount of
plaintiff's damages in your verdict.

If you find that plaintiff failed to mitigate damages as
submitted in Instruction Number ___, in determining plain-
tiff’s total damages you must not include those damages
which would not have occurred without such failure.

In determining the total amount of plaintiff's damages you
must not reduce such damages by any percentage of fault you
may assess to plaintiff. The judge will compute plaintiff’s
recovery by reducing the amount you find as plaintiff’s total
damages by any percentage of fault you assess to plaintiff.

NOT IN MAI

MAI 8.02 [1996 Revision] modified by MAI 37.03 [1986
New] (modified)

Submitted by defendant The Kansas City Southern Railway
Company

38a
APPENDIX H

DEFENDANT’S INSTRUCTION EE

Note: Complete the following paragraph by filling in the
blanks as required by your verdict. If you assess a
percentage of fault to any of those listed below, write
in a percentage not greater than 100%, otherwise write
in “zero” next to that name. If you assess a percentage
of fault to any of those listed below, the total of such
percentages must be 100%.

On the claim of plaintiff Garry Giddens for personal injury
against defendant KCS, we, the undersigned jurors, assess
percentages of fault as follows:

Defendant KCS % (zero to 100 %)
Plaintiff Garry Giddens % (zero to 100 %)
TOTAL % (zero to 100 %)

Note: Complete the following paragraph if you assessed a
percentage of fault to defendant.

We, the undersigned jurors, find the total amount of
plaintiff’s damages for personal injury, disregarding any fault
on the part of plaintiff to be $ (stating the amount).

Note: The judge will reduce the total amount of plaintiff's
damages by any percentage of fault you assess to
plaintiff.

Note: All jurors who agree to the above must sign below.

NOT IN MAI
MAI 37.07 [1986 New] (modified)

Submitted by defendant The Kansas City Southern Railway
Company

39a
APPENDIX I

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK

No. 480

EICHEL

¥;

NEW YORK CENTRAL RAILROAD Co.

Dec. 16, 1963.
PER CURIAM.

Petitioner, who had been employed by respondent New
York Central Railroad for 40 years, brought this action
against respondent under the Federal Employers’ Liability
Act, 35 Stat. 65, as amended, 45 U.S.C. § 51 et seq., in the
District Court for the Southern District of New York. The
complaint alleged that in 1960, as a result of respondent’s
negligence petitioner suffered a permanently disabling injury.
The jury returned a verdict of $51,000 for petitioner and the
District Court entered judgment in accordance with that
verdict. Respondent offered evidence that petitioner was
receiving $190 a month in disability pension payments under
the Railroad Retirement Act of 1937, 50 Stat. 309, as
amended, 45 U.S.C. § 228b(a) 4.

This evidence was offered for the purpose of impeaching
the testimony of petitioner as to his motive for not returning
to work and as to the permanency of his injuries. The trial
court excluded the evidence in response to the objection of
petitioner’s counsel. The Court of Appeals for the Second
Circuit reversed, holding it prejudicial error to exclude the
evidence of the disability pension, and remanded “for a new

40a

trial, limited, however, to the issues of injury and resulting
damages * * *.” 2 Cir., 319 F.2d 12, 14. The court affirmed
the judgment as to the determination of negligence.” Ibid. We
grant certiorari and reverse the judgment of the Court of
Appeals.

Respondent does not dispute that it would be highly
improper for the disability pension payments to be considered
in mitigation of the damages suffered by petitioner. Thus it
has been recognized that:

“The Railroad Retirement Act is substantially a Social
Security Act for employees of common carriers. * * *
The benefits received under such a system of social
legislation are not directly attributable to the
contributions of the employer, so they cannot be
considered in mitigation of the damages caused by the
employer.” New York, N. H. & H.R. Co. v. Leary, | Cir.,
204 F.2d 461, 468, cert. denied, 346 U.S. 856, 74 S.Ct.
71, 98 L.Ed. 370.'

Respondent argues that the evidence of the disability
payments, although concededly inadmissible to offset or
mitigate damages, is admissible as bearing on the extent and
duration of the disability suffered by petitioner. At the trial
counsel for respondent argued that the pension would show
“a motive for [petitioner’s] not continuing work, and for his
deciding not to continue going back to work after the last
accident.” On the basis of this argument the Court of Appeals
concluded that the disputed evidence should have been
admitted because: “Its substantial probative value cannot
reasonably be said to be outweighed by the risk that it will
* * * create substantial danger of undue prejudice through

' See Sinovich v. Erie R. Co., 3 Cir., 230 F.2d 658, 661; Page v. St
louis S. Ray. Co., 5 Cir., 312 F.2d 84, 94. see also Gregory and Kalven,
Cases and Materials on Torts (1959), pp. 480-482; McCormick, Damages
(1935), p. 310 n. 2; Comment, 38 Mich.|.Rev.1073.

4la

being considered by the jury for the incompetent purpose of a
set-off against lost earnings.” 310 F.2d, at 20.

We disagree. In our view that 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 benefits under the
Railroad Retirement Act of 1937, 50 Stat.309, as amended 45
U.S.C. §228b(a) 4, were considered as evidence of
malingering by an employee asserting a claim under the
Federal Employers’ Liability Aci. We have recently had
occasion to be reminded that evidence of collateral benefits is
readily subject to misuse by a jury. Tipton v. Socony Mobil
Oil Co., Inc., 375 U.S. 34, 84 S.Ct. 1. It has long been
recognized that evidence showing that the defendant is
insured creates a substantial likelihood of misuse.* Similarly,
we must recognize that the petitioner’s receipt of collateral
social insurance benefits involves a substantial likelihood of
prejudicial impact. We hold therefore that the District Court
properly excluded the evidence of disability payments.
Accordingly, the judgment of the Court of Appeals is
reversed and the case remanded for proceedings consistent
with his opinion.

Reversed and remanded.

Mr. Justice DOUGLAS concurs in the result.

Mr. Justice HARLAN, concurring in part and dissenting in
part.

> Cf. McCormick, Evidence (1954), c. 19: 2 Wigmore, Evidence
(1940), § 282a.

* See Kalven. The Jury, the Law, and the Personal Injury Damage
Award, 19 Ohio St. LJ 158, 169.

a
See notes 1-3, supra.

42a

Once again I am obliged to record my view that certiorari
should not have been granted in a case of this kind, involving
only a question of the admissibility of evidence in a suit
under the Federal Employers’ Liability ACT, 35 Stat. 65, as
amended, 45 U.S.C. § 51. See my dissenting opinion in
Tipton v. Socony Mobil Oil Co., Inc., earlier this Term, 84
S.Ct, p.3.

On the merits, I agree with the majority that the judgment
below should be reversed, but for different reasons. Whether
or not evidence that the petitioner was receiving disability
pension payments under the Railroad Retirement Act of 1937
50 Stat. 307, as amended, 45 U.S.C. § 228a, should have been
admitted depends on a balance between its probative bearing
on the issue as to which it was offered, in this case the
respondent’s claim that petitioner was a malingerer, and the
possibility of prejudice to the petitioner resulting from the
jury’s consideration of the evidence on issues as to which it is
irrelevant. When a balance of this sort has to be struck, it
should, except in rare instances, be left to the discretion of the
trial judge, subject to review for abuse. See Uniform Rules of
Evidence, Rule 303. It is he who is in the best position to
weigh the relevant factors, such as the value of the disputed
evidence as compared with other proof adducible to the same
end and the effectiveness of limiting instructions. Believing
that this rule should have been followed here, I concur in
reversing the judgment below, which not only held the
evidence not inadmissible as a matter of law but also directed
its admission on retrial.

For the same reasons, however, I dissent from the
majority’s holding that the evidence is required to be
excluded. I see no reason why evidentiary questions should
be given different treatment when they arise in an F.E.L.A.
case than when they arise in other contexts

43a
APPENDIX J

§ 51. Liability of common carriers by railroad, In
Interstate or foreign commerce, for Injuries to
employees from negligence; employee defined

Every common carrier by railroad while engaging in
commerce between any of the several States or Territories, or
between any of the States and Territories, or between the
District of Columbia and any of the States or Territories, or
between the District of Columbia or any of the States or
Territories and any foreign nation or nations, shall be liable in
damages to any person suffering injury while he is employed
by such carrier in such commerce, or, in case of the death of
such employee, to his or her personal representative, for the
benefit of the surviving widow or husband and children of
such employee; and, if none, then of such employee’s
parents; and, if none, then of the next of kin dependent upon
such employee, for such injury or death resulting in whole or
in part from the negligence of any of the officers, agents, or
employees of such carrier, or by reason of any defect or
insufficiency, due to its negligence, in its cars, engines,
appliances, machinery, track, roadbed, works, boats, wharves,
or other equipment.

Any employee of a carrier, any part of whose duties as
such employee shall be the furtherance of Interstate or foreign
commerce; or shall, in any way directly or closely and
substantially, affect such commerce as above set forth shall,
for the purposes of this chapter, be considered as being
employed by such carrier in such commerce and shall be
considered as entitled to the benefits of this chapter.

(Apr. 22, 1908, c. 149, § 1, 35 Stat. 65; Aug. 11, 1939, c. 685,
§ 1, 53 Stat. 1404.)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0801%3A1. Public record. Not legal advice.