Amicus Curiae Brief — National Railroad Passenger Corp. v. Griesser

TIN FILED =)

Au 24 duu, No. 01-164

IN THE

Supreme Court of the Anited States

NATIONAL RAILROAD PASSENGER CORPORATION,

Petitioner,

V.

JOSEPH P. GRIESSER,

Respondent.

On Petition for a Writ of Certiorari to the

Superior Court of Pennsylvania

MOTION FOR LEAVE TO FILE BRIEF AMICUS

CURIAE AND BRIEF OF THE ASSOCIATION OF

AMERICAN RAILROADS AS AMICUS CURIAE

IN SUPPORT OF THE PETITION

LOUIS P. WARCHOT

DANIEL SAPHIRE *

ASSOCIATION OF AMERICAN

RAILROADS

50 F Street, N.W.

Washington, D.C. 20001

(202) 639-2505

* Counsel of Record Counsel for Amicus

August 24, 2001

ELE ALN ILE LEN AEE DSS LE SEE SOLELEY LOS SLE EMIE LOE LDL EEL LODE NAS SPEVEL ENGEL LLL EEE LLL IED LEP BIA

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D.C. 20001

IN THE

Supreme Court of the Anited States

No. 01-164

NATIONAL RAILROAD PASSENGER CORPORATION,

Petitioner,

Vv.

JOSEPH P. GRIESSER,

Respondent.

On Petition for a Writ of Certiorari to the

Superior Court of Pennsylvania

MOTION FOR LEAVE TO FILE BRIEF AMICUS

CURIAE OF THE ASSOCIATION OF AMERICAN

RAILROADS IN SUPPORT OF THE PETITION

The Association of American Railroads (AAR) respectfully

moves for permission to file the attached brief amicus curiae.

This motion is filed under Rule 37.2(b). Petitioner has

consented to AAR’s filing of a brief.' Respondent has

refused consent.

AAR is an incorporated, nonprofit trade association repre-

senting the nation’s major freight railroads and Amtrak.

AAR seeks leave to file a brief amicus curiae only when the

case presents an issue of great significance to the railroad

' The letter expressing consent has been filed with the Clerk of the

Court.

neice a

industry as a whole—and in those instances such requests

have been granted.”

This case, arising under the Federal Employers’ Liability

Act (FELA), 45 U.S.C. §§ 51-60, presents such an issue. The

court below followed several other lower courts in attributing

to a prior decision of this Court a hard and fast rule

prohibiting any mention of the age at which a railroad

employee seeking compensation under FELA for future lost

wages would have become eligible to receive retirement

benefits under the Railroad Retirement Act of 1974 (RRA),

45 U.S.C. §§ 231-231u. When a FELA plaintiff claiming a

permanent disability asserts that he or she would have opted

for an advanced retirement age but for the injury, such

evidence often is proffered to rebut that assertion by

suggesting a more realistic, earlier retirement date. However,

as a result of this and like rulings in other jurisdictions,

petitioner and other railroads are deprived of the right to

present highly probative evidence going to a key component

of damages in a FELA case. This rule, which is the product

of a misapplication of a very limited holding by this Court,

confers an enormous and unwarranted disadvantage on

railroad defendants in numerous cases arising under FELA.

Because FELA litigation is an ongoing event for all major

railroads—with several thousand FELA suits typically filed

each year—AAR has a strong interest in assuring that lower

courts do not improperly expand railroad liability under

FELA. When AAR participates in a FELA case like this one

as amicus curiae, it brings a broad, industry-wide perspective

to the issues before the court. AAR works closely with its

member railroads to address a host of issues arising under

2 E.g., Consolidated Rail Corp. v. Wicker, 119 S.Ct. 530 (1998); CSX

Transp., Inc. v. Sirbaugh, 117 S. Ct. 1289 (1997); Norfolk & Western Ry.

v. Chittum, 117 S. Ct. 597 (1996); Metro-North Commuter RR. v.

Buckley, 117 S.Ct. 379-80 (1996). All granting motion of AAR to

participate as amicus curiae.

FELA. AAR also maintains a close liaison with the National

Association of Railroad Trial Counsel, an organization of

over 900 attorneys representing railroads nationwide in

personal injury litigation. Thus, AAR is thoroughly familiar

with the trends in FELA litigation that confront its members.

As a trade association representing the nation’s major

railroads, AAR can assist this Court in understanding the

impact of the lower court’s rulings, by bringing the

perspective of an entire industry, which often is different

from that of the individual litigant, who may not be in a

position fully to be aware of a case’s impact on the industry

as a whole. In this case, AAR has an interest not only in

assisting the petitioner in obtaining relief from an erroneous

decision, but also in assuring that an important federal law is”

not misconstrued to the detriment of railroads in the future.

For these reasons, leave to file the attached amicus curiae

brief should be granted.

Respectfully submitted,

Louis P. WARCHOT

DANIEL SAPHIRE *

ASSOCIATION OF AMERICAN

RAILROADS

50 F Street, N.W.

Washington, D.C. 20001

(202) 639-2505

* Counsel of Record Counsel for Amicus

August 24, 2001

TABLE OF CONTENTS

TABLE OF AUTHORITIES ........cccccccsccscosssscsseorscsseceees

INTEREST OF AMICUS, ......ccscccrsscsccccccceccsssesesoscsvencssees

STATEMENT OF THE CASE............ccccccsssssscscssssccseees

SUMMARY OF THE ARGUMENT ...........cessessseeseeees

ARGUMENT occsscccsscssasnesssseissasntostisseantaratscnnenasuniankatetens

I.

THIS COURT SHOULD REVIEW THE

RULING BELOW BECAUSE IT IS

AN UNWARRANTED AND ILLOGICAL

EXPANSION OF ITS LIMITED HOLDING

IN EICHEL V. NEW YORK CENTRAL

WHICH UNFAIRLY PUTS FELA

DEFENDANTS AT A _ DISTINCT DIS-

ADVANTAGES ccisscescscsccrcsccssscacccscessoscenscessensseses

A. The Lower Court’s Reliance On Eichel Is

Misplaced Because This Case Presents An

Entirely Different Issue Than Did Eichel ....

B. The Rationale for the Collateral Source

Rule Does Not Apply to Evidence of

Benefits Available to Railroad Employees

Under the RIA. ....iccsoccinscsssccssscnesacessansccunseces

C. Evidence of a Plaintiff's Eligibility for a

Retirement Pension Under the RRA Often

is of Great Probative Value in a FELA

Case and Will Not Confuse the Jury............

D. Eichel Does Not Prohibit Trial Courts

From Using Their Discretion to Balance

the Probative Value of Evidence of RRA

Benefits Against Possible Prejudicial

ICID acinsasstncnnisnedsinssiracsscionineiinseiimenniannes

no +>

eae i

ii

TABLE OF CONTENTS—Continued

Page

Il. THIS COURT SHOULD REVIEW THIS

CASE BECAUSE EXCLUDING EVIDENCE

ON WHEN A FELA PLAINTIFF WOULD

BE ELIGIBLE TO RETIRE WITH A FULL

RRA AGE AND SERVICE PENSION WILL

HAVE A SIGNIFICANT IMPACT ON THE

OUTCOME OF MANY FELA CASEGS............. 17

CONCLUSION .........cccsscccsssssssssscsersessssscsssssssssssssooessoees 20

ili

TABLE OF AUTHORITIES

CASES Page

A.H. Bull Steamship Co. v. Ligon, 285 F.2d 936 -

(Sia Clit. 19GB) .ccccccccssocccescsccesncenssscscsesecccesccesassecs 9

Brumley v. Federal Barge Lines, Inc., 396

N.E.2d 1337 (Il. App. 1979) .......cccccsceerseeereeeeees 19

Consolidated Rail Corp. v. Gottshall, 512 U.S.

FBZ (1GDS) nececrrceccscseccescacenncsessacosnsasssesassossossaaseces 16, 20

Crouch v. CSX Transp., Inc., No. L 94-1055

(Portsmouth, Va. Feb. 10 1997), reprinted in

17 No. 5 Verdicts, Settlements & Tactics 31

(May 1997)............cccscsscssrcerceesserscsesescsssssssssssenses 18

DeBiassio v. Illinois Cent. R.R., 52 F.3d 678

(Tila Cle. 195) nccrccccccrsscscccesscscccesenscccncseccescosossscese 18

Denver & Rio Grande Western R.R. v. Green, 59

F.3d 1029 (10th Cir.), cert. denied, 516 U.S.

1ODD (19 DS) .cccccccocesccccscsssesesssesnsassesssesessnsonccscosees 9,15

Eichel v. New York Cent. R.R., 375 U.S. 253

(1DGS) ncrcccescesnenssccsssssccessssessnsncnscssssccasessncsacooooeess passim

Eichel v. New York Cent. R.R. 319 F.2d 12

(19GB) nccracsosccrsessessscesesessennsnecssnessensossscsssnssesonseses 6

Ellis v. Union Pac. R.R., 329 U.S. 649 (1947)....... 16

Gladden v. Henderson & Co., 385 F.2d 480 (3rd

Cig, 1967) .cccccccccsccscccccccscscsscssccsoscessscsscsscosccososcses 14

Griesser v. National R.R. Passenger Corp., 761

A.2d 606 (Pa. Super. 2000).......:.sccecseeeeeeeneeneenes 8, 13

Hileman v. Pittsburgh & Lake Erie R.R., 685

A.2d 994 (Pa. 1996) ..ccccccccccccccssccccccccccccccsecsecseses 16

Johnson v. United States, 333 U.S. 46 (1948)....... 20

Kimmen v. Consolidated Rail Corp., 1999 WL

148360 (E.D. Pa. 1999)............ccccccccccsccscsssecsesees 19

Lange v. Missouri Pac. R.R., 703 F.2d 322 (8th

Cle. 19B3) naccccccccssnaccscecocccsessoecccsccncsscosscsssocssosscose 14

Lee v. Consolidated Rail Corp., 1995 WL

734108 (E.D. Pa. 1995)..............ccccccssesserccessenses 19

ee

iV

TABLE OF AUTHORITIES—Continued

Page

Maliska v. Southern Pac. Transp. Co., No.

B-153, 936 (Jefferson Cty. Dist. Ct., Beau-

mont, Tx. 1998), reprinted in 18 No. 7

Verdicts, Settlements & Tactics 307 (July

OVID siisistsiniclsenbiniesibesesienhineniiinnibasenbsansiananigientaiiieinin 18

McGrath v. Consolidated Rail Corp., 136 F.3d

ee il UD ihainiedindthisciciisancbtincensiaatiensiinsanes 15

Metro North Commuter R.R. v. Buckley, 521 U.

ee A ON cceisielacieabianitegibadaditibiciapnahideandadnannbaaiiinn 9

Michigan Central R.R. v. Vreeland, 227 U.S. 59

CI a isesinecdaniteilielincisdadltanbeccia ahisasnatiisa soniaibiaiisdacts 14

Monessen Southwestern R.R. v. Morgan, 486

bs aU CUD ahsicilechuiiiicshseatitabeiiidieliachnstndihidateeine 20

Moore v. Missouri Pac. R.R., 825 S.W.2d 839

ees BENE NUE atncisenincsnicnnnpiatiedanicaatattodises., 14

Murray v. N.Y., N.H. & Hartford R.R., 255 F.2d

ee GE ils i iisisahcicicihentbnninaacnciniihiaiiliens 19

Norfolk & Western Ry. Co. v. Hiles, 516 U.S.

Oe I inincieahcsnssincsiictnbensnaecidititabidigllanhtea 20

Norfolk & Western Ry. Co. v. Liepelt, 444 U.S.

Sg NE eS ER Se TT 14

Reiner v. Northern Pac. Terminal Co., 259 F.2d

Ce eas Nee isn siisclnninclitnnshdiiticaisiataidans 20

Rogers v. Missouri Pac. R.R., 352 U.S. 500,

reh’ g denied, 353 U.S. 943 (1957) .....cccccccssseeee 19

Schirra v. Delaware, L. & W. R.R., 103 Supp.

SD ___. Rant tere nn ee EEN 19

Seaboard Coast Lines R.R. v. Gillis, 321 So.2d

Fee Ns eae cihinieteniiicaninartinebiiasiidiitaciatsiae 19

Schneider v. National Railroad Passenger Corp.,

eT Be EE GROG, BOB) esccnenssecsinrcssaneecssanen 18

ee

v

TABLE OF AUTHORITIES—Continued

Sheehy v. Southern Pac. Transp. Co., 631 F.2d

TE SU caictcriniriicnischersnsietaivachicdadinibentnndc 15

Simmons v. Union Terminal Co., 290 F.2d 453

I WET 6 sicunicatisiasiianpahietsrhestblakdaieninanincss 20

Stillman v. Norfolk & Western Ry. Co., 811 F.2d

Re aes WET cicehssciiccncaiesutikaceststecsonkbuiceiniicsie 16

The Propeller Monticello v. Mullison, 58 U.S.

FF ie EA IE wiicsiscioneiAsisksusiacebicnenchedinaiscies 9

Tiller v. Atlantic Coast R.R., 318 U.S. 54 (1943).. 6

Weinell v. McKeesport Commuter R.R., 411 F.2d

ey Re Gaile NID wictabinsinccncchitabeirnate iedadininsdhaatin 17

Wilcox v. Clinchfield R.R. 747 F.2d 1059 (6th

Rats MND wieihcirasin abilaaduh catnedbealcbihenhahisabandadidesnainxaes 15

Wilkinson v. United States, 365 U.S. 399 (1961)... 20

STATUTES

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NR, BN oiivtsacscctscnsicsnssssnnacseusatsirscsiess

RE Boi inicisiscsscsiratasannianlostrce

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a iiiacccssiscstcscentcscedvirassnsecnnclccee

| SaaS REE tare eee nna

Re I ii aciesis sncictscotscndiccoic

45 U.S.C. § 23 1a(a)(1)(ii) esscsseccsssecsssseccsssseccssseseee

MS TLD © POA) cinsiansincacscssancncaesnpssca

4S USL. § ZI 1aLA HAY) oaccccsceccccessccccscacsnseseacesseo

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MISCELLANEOUS

Pe I TT GUTD sti sercccshiiendsdcianicsosiomoisesiinienansinnnes IS, &7

| |

vi

TABLE OF AUTHORITIES—Continued

Page

1 A. LarRsON & K. LARSON, LARSON’s

WORKERS’ COMPENSATION LAW (2000 ed.)...... 18

22 AM. JUR. Damages § 566 (1988) .........sseeeeees 9

Natalie Kramer, Employee Benefits for Older

Workers, MONTHLY LAB. REV. 21 (April 1995) 13

Patrick J. Purcell, Older Workers: Employment

and Retirement Trends, MONTHLY LAB. REV.

EG CE, FID) vaisscrsnsansicsvccietansnasiasisisnpinssitnatasanee 13

NT

NTE A ERIN tr Oe

IN THE

Supreme Court of the Anited States

No. 01-164

NATIONAL RAILROAD PASSENGER CORPORATION,

Petitioner,

V.

JOSEPH P. GRIESSER,

Respondent.

On Petition for a Writ of Certiorari to the

Superior Court of Pennsylvania

BRIEF OF ASSOCIATION OF AMERICAN

RAILROADS AS AMICUS CURIAE

IN SUPPORT OF THE PETITION

STATEMENT OF INTEREST OF AMICUS CURIAE!

Amicus curiae Association of American Railroads (AAR)

is an incorporated, nonprofit trade association representing

the nation’s major freight railroads and Amtrak. AAR’s

members operate approximately 76 percent of the rail

industry’s line haul mileage, produce 93 percent of its freight

revenues and employ 90 percent of rail workers. AAR

represents its members in proceedings before Congress, the

courts and administrative agencies in matters of common

interest.

' No person or entity other than AAR has made monetary contributions

toward this brief, and no counsel for any party authored this brief in whole

or in part.

Pe

2

One such matter is the Federal Employers’ Liability Act

(FELA). 45 U.S.C. §§ 51-60. In 1908, before the concept of

no-fault workers’ compensation had gained a foothold in the

United States, Congress enacted this tort-based remedy for

railroad employees injured on the job. Subsequently, every

state has enacted a workers’ compensation law to cover

employees within its jurisdiction. Under these laws, the

concept of assigning fault for workplace injuries has been

abandoned in favor of the principle that all employees

suffering work-related injuries are deserving of compen-

sation. Today, the railroad industry remains virtually the only

one where work-related injuries are compensated under a

fault-based system.” A key difference between the workers’

compensation systems and FELA is that the former cap

the amount of compensation available to employees, while

the latter permits open-ended damages awards. See infra |

note 18.

FELA is not the only unique federal benefits statute

applicable to the railroad industry. Unlike virtually all other

participants in the American workforce, railroad employees

are not covered by the Social Security System, but instead are

covered by the Railroad Retirement Act of 1974 (RRA), 45

U.S.C. §§ 231-23lu. Like the Social Security System, the

RRA provides a pension to retired rail employees who have

the requisite years of creditable service. The RRA allows for

retirement with full benefits at an earlier age than does the

Social Security System.? Two types of disability benefits also

? Seamen are covered under FELA by virtue of 46 U.S.C. § 688. All

other industries in the United States are covered by either state or federal

no-fault workers’ compensation systems.

>Retirement with full benefits is available to Social Security

beneficiaries at age 65, and the Social Security “retirement age” is set to

increase gradually. 42 U.S.C. § 416(1) In contrast, under the RRA, an

employee with 30 years of service can retire at age 62 with full benefits,

or at age 60 with a reduced benefit. See 45 U.S.C. §§ 231a(a)(1)(ii) and

23 1b(a)(3).

SII a NO EAE | LEMME ENC HRs OPS Ae PSE ering een EEN ole MRE See a

LSS STEEN ET aaa aD

3

are available under the RRA to railroad employees suffering a

disability rendering them unable to.work.*

Each year thousands of claims and lawsuits are asserted

under FELA against AAR members and other railroads.” In

addition to offering evidence of the railroad’s negligence or

the employee’s comparative negligence,° the parties often

will vigorously contest the amount of damages suffered by

the plaintiff. In many cases, as in the case below, the injured

employee alleges a permanent disability and seeks compen-

sation covering lost wages for the remainder of his or her

projected work life.

Whether, and the extent to which the plaintiff is injured, as

well as the amount of compensation owed, are issues

generally decided by the jury. Whenever the plaintiff alleges

that he or she cannot return to work, the jury must decide how

much earning capacity has been lost. Thus, a jury determi-

nation on how many additional years, but for the injury, the

plaintiff would have worked can have a significant impact on

the outcome.

In this case, a state appellate court, overturning a ruling by

the trial judge, prohibited the defendant from introducing a

key piece of evidence going directly to the issue of when the

plaintiff would have retired, i.e., the age at which he would

have been eligible to retire with full benefits under the RRA.

The railroad sought to introduce this evidence to rebut

assumptions about the age at which the plaintiff would have

*Railroad employees who are unable to work in their regular

occupation may qualify for an occupational disability benefit under 45

U.S.C. § 231a(a)(1)(iv); those-unable to work at any job may qualify for a

total disability benefit under 45 U.S.C. § 231a(a)(1)(v).

> In 1999, 4,970 FELA lawsuits were filed. (Data on FELA lawsuits

are derived from information provided to AAR in response to sanual

surveys of AAR members and other railroads.)

°Under FELA, damages must be reduced in proportion to the em-

ployee’s negligence in causing the injury. 45 U.S.C. § 53.

|

4

retired, made by the plaintiff's economist when testifying

about the plaintiff’s future wage loss. Nonetheless, the court

below reasoned that it was compelled to exclude this

evidence by a decision of this Court when, in fact, that

decision never addressed the issue.

The case below represents an alarming trend in which

lower courts, employing faulty logic, have extended a limited

holding of this Court to formulate a rule never contemplated

nor supported by any prior decisions of this Court. See infra

note 19. This unwarranted expansion of the collateral source

rule places railroads at a distinct disadvantage with respect to

a key trial issue, which has a direct and significant impact on

the size of damages awards in many FELA cases. Nothing in

either the text of FELA or prior decisions of this Court

warrants the per se exclusionary rule countenanced by the

court below. AAR members, therefore, have a strong interest

in seeking review of this case as a means of restoring balance

and equity to litigation under FELA.

STATEMENT OF THE CASE

Amicus adopts the statement of the case in petitioner’s

brief.

SUMMARY OF THE ARGUMENT

The ruling below is the product of a misapplication of this

Court’s limited holding in Eichel v. New York Cent. R.R. In

Eichel, this Court held that the trial court had properly used

its discretion in excluding evidence of the plaintiff’s receipt

of occupational disability benefits under the RRA. The Court

below, believing that Eichel set forth a broad, per se rule

requiring the exclusion of evidence of any and all benefits

that might be available to railroad employees under the

RRA, prohibited the defendant from rebutting the plaintiff's

assumption about when he would have retired with evidence

of the age at which the plaintiff would have been eligible to

retire with full RRA benefits.

>

Eichel characterized RRA disability benefits as a collateral

source was based on an unchallenged assumption that such

benefits are not attributable to the employers’ contributions:

in fact, railroad employers contribute three-quarters of the

funding for occupational disability benefits. Inasmuch as the

characterization of RRA occupational disability benefits as a

collateral source is questionable, the Eichel decision should

not be expanded to cover RRA retirement pensions which, as

they are not compensation for the injury suffered, bear none

of the markings of a collateral source. Evidence about the

availability of a retirement pension at a certain age is

probative of the age at which the plaintiff would have decided

to retire. Moreover, there is no logical reason to assume such

evidence would be prejudicial, or confusing to a jury, nor

does Eichel compel a conclusion that it would be. The

unwarranted extension of Eichel by the court below to

prevent a FELA defendant from using a key piece of evidence

going to the issue of damages puts railroads at a distinct

disadvantage, and cannot be sustained by either prior

decisons of this Court or the language or policies of FELA.

Prohibiting railroad defendants from utilizing evidence of

when the plaintiff would have been entitled to retire under the

RRA to rebut evidence proffered by the plaintiff, has a

significant impact on the level of damages that are awarded in

FELA cases. Lost earning capacity often is a major element

of damages in a FELA suit-juries have awarded over $1

million for lost earnings alone in recent cases-and the

plaintiff's remaining worklife, i.e., the age at which the

plaintiff would have retired but for the injury, is an important

factor in a jury’s determination of lost earning capacity.

Without the ability to offer evidence to rebut plaintiffs’

assertions about retirement expectations, railroads face the

prospects of overcompensating FELA plaintiffs for claimed

lost future earnings. Only this Court can correct the

misapplication of its Eichel decision which has led to this

result.

6

ARGUMENT

I. THIS COURT SHOULD REVIEW THE RULING

BELOW BECAUSE IT IS AN UNWARRANTED

AND ILLOGICAL EXPANSION OF ITS

LIMITED HOLDING IN EICHEL V. NEW

YORK CENTRAL WHICH UNFAIRLY PUTS

FELA DEFENDANTS AT A DISTINCT DISAD-

VANTAGE

A. The Lower Court’s Reliance On Eichel Is Mis-

placed Because This Case Presents An Entirely

Different Issue Than Did Eichel

In a case decided under the FELA nearly sixty years ago,

Justice Frankfurter observed that

a phrase begins a life as a literary expression; its felicity

leads to its lazy expression; and repetition soon

establishes it as a legal formula, indiscriminately used to

express different and sometimes contradictory ideas.’

The decision below demonstrates that this observation can

apply to not just a “phrase”, but to an entire decision of this

Court. A limited holding of this Court, the underlying

premise of which was never at issue in the case, has been

transformed by lower courts into an all-encompassing

exclusionary rule of evidence which gives FELA plaintiffs an

evidentiary “free pass” never intended by Congress.

In 1963, this Court held in Eichel v. New York Cent. R.R.,

375 U.S. 253 (1963), that evidence of receipt of disability

benefits under the RRA could not be admitted to show that a

FELA plaintiff who alleged he was permanently injured, in

fact, had other motivation for not returning to work.® This

Court held that the trial court properly found that the

prejudicial effect of the evidence outweighed its probative

’ Tiller v. Atlantic Coast R.R., 318 U.S. 54, 68 (1943) (Frankfurter, J.,

concurring).

8“ Fichel vy. New York Cent. R.R., 319 F.2d 12, 18 (2nd Cir. 1963).

7

value. Having sought to introduce the evidence for the

limited purpose of showing malingering by the plaintiff, the

defendant never took the position in court that receipt of RRA

disability benefits could be used to reduce wage loss

damages. Given this “concession,” ” and finding that more

probative evidence on the issue of malingering likely existed,

this Court concluded that the likelihood the jury might misuse

the evidence for the improper purpose of reducing damages

warranted its exclusion. /d. at 255.

‘1.sough the court below relied on Eichel, this case involves

a different kind of benefit than did Eichel, which is relevant

to a completely different trial issue. The benefit at issue in

Eichel is available to railroad employees suffering disabilities

(including disabilities suffered in the course of employment),

rendering them unable to perform their normal occupation.

See supra note 4. This occupational disability benefit, a

benefit which is not available to workers covered by the

Social Security System, is available to employees with twenty

years of service in the railroad industry and is funded

primarily by the employer.”

The benefits at issue in this case, also available under the

RRA, have nothing to do with a disability, but rather provide

for a retirement pension to qualifying railroad employees.

Employees with 30 years of service may retire with full

benefits at age 62, see supra note 3; in contrast, only reduced

“Respondent does not dispute that it would be highly improper for the

disability pension to be considered in mitigation of damages suffered by

petitioner.” 375 U.S. at 254.

'° The primary source of funding of RRA benefits is a two-part pay-

roll tax levied on railroad employers and employees. Employers and

employees make equal contributions under Tier | of the tax. 26 U.S.C.

§§ 3201(a) and 3221(a). However, the employer contributes about three-

quarters of the Tier II tax (16.1% of a 21% tax on the first $59,700 (in

2001) of each employee’s earnings). 26 U.S.C. § 3221(b). Like all RRA

benefits with no Social Security equivalent, occupational disability

benefits are funded out of Tier II taxes.

SEY NR ELS IL NRE: ALES oc SEO

8

retirement benefits are available to Social Security recipients

at age 62. 42 U.S.C. § 402(q). Moreover, under the RRA,

there is a second level of retirement benefit, which like the

occupational disability benefits are funded out of the Tier II

payroll tax. 45 U.S.C. § 231b(b).

Unlike the benefits in Eichel, the retirement benefits raised |

by petitioner at trial were not being paid on account of the

injury. Moreover, the evidence here was offered directly to |

rebut evidence introduced by the plaintiff. The trial court

understood these distinctions and admitted the evidence. On

appeal, recognizing the differences between retirement and

disability benefits, the court below all but admitted that

Eichel was not on point and that its rationale did not apply.

Griesser v. National R.R. Passenger Corp., 761 A.2d 606,

610 (Pa. Super. 2000). Nonetheless, the court concluded that

Eichel prohibits a railroad from even making mention of the

age at which a FELA plaintiff would have been eligible to

retire with full benefits under the RRA. The appellate court

held that under Eichel “evidence of collateral source benefits

‘must be categorically excluded.” 761 A.2d at 611. |

The broad exclusionary rule which the court below |

ascribed to Eichel distorts that decision beyond all recog- )

nition. Not only does the decision below go far beyond

Eichel’s limited holding, that holding itself is a product of

assumptions which never were subject to argument or briefs

before this Court. Therefore, this Court should review the

decision below to correct repeated misinterpretations of a

prior decision which have denied railroads the right to offer a

full defense under a federal statute.

B. The Rationale for the Collateral Source Rule

Does Not Apply to Evidence of Benefits

Available to Railroad Employees Under the

RRA

Benefits that are received, or that may be received at some

future time, by a railroad worker pursuant to the RRA should

9

not be viewed as a collateral source. Under the collateral

source rule, recognized by the Supreme Court nearly a

century and a half ago’ '' if a plaintiff has a source of payment

independent of the tortfeasor compensating for some of the

losses suffered, the tortfeasor is prohibited from deducting the

collateral source from the damages owed to the plaintiff.

22 Am. Jur. 2d Damages, § 566 (1988). The collateral source

rule is based on the policy that even though the plaintiff is

being compensated for part of the loss suffered as the result

of the defendant’s negligence and, therefore, would be made

more than whole if compensated for the same loss by the

defendant, the tortfeasor should not benefit from this fortuity.

This policy is most compelling where the plaintiff, by having

procured insurance against the loss suffered, is the source of

the collateral benefit. However, this rationale does not hold

where the tortfeasor is the source of the collateral benefit, as

in that case, the tortfeasor is not escaping the full brunt of :t

negligent conduct. See A.H. Bull Steamship Co. v. Ligon, 285

F.2d 936, 937 (Sth Cir. 1960).'”

In Denver & Rio Grande Western R.R. v. Green, 59 F.3d

1029, cert. denied, 516 U.S. 1009 (1995), one of the cases

following Eichel, the Tenth Circuit explained that

The collateral source rule allows a plaintiff to seek full

recovery from a tortfeasor even though an independent

source has compensated the plaintiff in full or in part for

the loss. The rationale for the rule is at least two-fold:

First, public policy favors giving the plaintiff a double

recovery rather than allowing a wrongdoer to enjoy

'' The Propeller Monticello v. Mollison, 58 U.S. (17 How.) 152 (1854).

'2 Moreover, the rationale and efficacy of the collateral source rule has

come under recent criticism. See Petition at 18, n.13. In Metro-North

Commuter R.R. v. Buckley, 521 U.S. 424 (1997), this Court questioned the

wisdom of permitting a full tort remedy for medical monitoring of the

plaintiff’s allegedly exposed to asbestos when such relief might already be

available through insurance or governmental regulation. Id. at 442.

10

reduced liability simply because the plaintiff received

compensation from an independent source (emphasis

supplied) [citation omitted]. Second, by assuring a

plaintiff's payments from a collateral source will not be

reduced by a subsequent judgment, the rule encourages

the maintenance of insurance. [citation omitted].

59 F.3d at 1032.

The language of the Eichel decision suggests that this

Court saw RRA disability benefits as being a collateral source

because they were independent of the railroad (“the benefits

received . . . are not directly attributable to the contributions

of the employer,” 375 U.S. at 254). This assumption was

never challenged by the New York Central because it never

attempted to offset the disability benefits against the

plaintiff's damages.

Because it was never at issue in Eichel, the notion that

RRA occupational disability benefits are a collateral source,

and therefore may not be considered in mitigation of FELA

damages, was never an issue in controversy before this Court.

The assumption.that these benefits are “not attributable to the

employer,” is belied by the substantial contributions railroad

employers make to fund the benefit: over three-quarters of the

funding for occupational disability benefits is attributable to

railroad employer contributions. See supra note 10. Thus,

the notion, accepted nearly universally by lower courts, that

they are without discretion to do anything but exclude

evidence of any benefits received by a railroad worker is

premised on a dubious characterization of RRA benefits.

This unexamined premise, however, undergirded the Eichel

Court’s conclusion that the prejudicial effect of evidence of

receipt of RRA occupational disability benefits outweighs its

probative value: a conclusion which the court below extended

1]

to prohibit petitioner from introducing important evidence

related to a different type of RRA benefit.'”

C.:Evidence of a Plaintiff's Eligibility for a

Retirement Pension Under the RRA Often is of

Great Probative Value in a FELA Case and

Will Not Confuse the Jury

Regardless of whether occupational disability benefits a

FELA plaintiff is eligible to receive on account of his or her

injury before reaching retirement age is a collateral source,

the RRA age and service pension, which respondent would

have been eligible to receive upon retirement from the

railroad industry, should never be subject to exclusion under

Eichel or any version of the collateral source rule. A key

element of the collateral source rule is that the payment in

question is being made to compensate the plaintiff for the

same loss for which compensation is being sought from the

tortfeasor. However, the relevance of retirement benefits to a

FELA case is not as a payment to cover a loss also recov-

erable under FELA, but rather, as evidence of when the

plaintiff would have voluntarily ended his railroad employ-

ment. This is highly relevant because the age at which the

plaintiff would have “retired” if he had not been injured is

essential to determine the extent of the wages lost as a result

of the injury. While the age at which the plaintiff would have

been eligible for a retirement benefit is not necessarily

dispositive of when he would have voluntarily ended his

railroad employment—some employees work beyond the date

at which they would be eligible to retire with a pension—it is

at least highly probative.

'? It is the position of AAR that when the opportunity presents itself,

this Court should reexamine its Eichel decision by examining the under-

lying premise that RRA occupational disability benefits are a collateral

source and may not be offset against wage loss damages (or introduced for

other purposes) because they are not attributable to the contributions of

the employer.

VK Sco

12

Not only is this evidence highly probative, there is no

logical reason why evidence of when a railroad employee

would have been eligible to retire with full benefits would be

prejudicial. In Eichel, the Court was concerned that if the

defendant was permitted, for the purpose of showing malin-

gering, to elicit testimony that the employee was receiving

disability benefits which would have been forfeited had he

returned to work, the jury might have been inclined to take

that into account when calculating damages or even when

assessing liability. There is no logical reason to assume that a

jury would have taken that course in the case below.

The distinction between a retirement pension and a

disability benefit are straightforward and well known to lay

jurors. Practically every American who is, or has been,

employed (outside the railroad industry) participates in the

Social Security System which provides retirement income

upon reaching the statutory retirement age, and which also

provides disability benefits. Thus, jurors would be generally

familiar with the concept of disability benefits, which

typically pay compensation when the beneficiary is disabled

and unable to work. There is no reason to believe that jurors

cannot distinguish this concept from retirement pensions,

which are payable when an employee has reached a certain

age and decides to retire, or understand the impact that the

availability of a retirement pension might have on an

individual’s decision to remain employed or to retire.

Nonetheless, the court below, and some other lower courts,

have assumed that the jury would be confused, and conse-

quently might misuse evidence of the plaintiff’s entitlement

to retirement benefits. The court opined that

the jury could conclude that Amtrak was liable for lost

wages to age 65 or 70, but then decline to award such

damages because of the fortuitous existence of equiv-

alent retirement benefits. Or, the jury could conclude

that Appellant was entitled to benefits only to age 60 and

13

was attempting to seek a double recovery Of benefits

after age 60.

Griesser, 761 A.2d. at 612. There is no legal or logical

reason for allowing such an assumption to be the basis for

excluding probative evidence on an important issue. The jury

could only have concluded that Amtrak was liable for lost

wages until age 65 or 70 if it concluded the plaintiff would

have continued to work until those ages. If the jury

concluded the plaintiff would have retired at age 60, it would

have been compelled to deny lost wages for any period

beyond attaining that age.

Where the employee has introduced evidence with regard

to his intended retirement date (either by his own testimony

or that of an expert witness), the railroad must have the right

to rebut that evidence if it believes the plaintiff would have

been more likely to retire at an earlier date. Inasmuch as the

date at which a worker will be eligible to retire with a full

pension is a good indicator of when he actually will retire,'*

prohibiting the railroad from introducing that evidence puts it

at a great disadvantage on an extremely important issue in

many FELA cases. See infra Part Il.

Even courts which strictly adhere to the rule that RRA

disability benefits are a collateral source, have nonetheless

recognized that simple fairness requires that when the

plaintiff has introduced evidence of a particular fact that may

be rebutted by evidence of his or her receipt of a benefit, that

evidence must be allowed. For example, where the plaintiff

has injected his/her financial condition into the case, by

14 Patrick J. Purcell, Older Workers: Employment and Retirement

Trends, MONTHLY LAB. REV. 19, 29 (Oct. 2000) (“Empirical evidence

indicates that more retirements occur at age 62—the earliest age at which

reduced retired worker benefits are available—and at age 65—the earliest

date at which full retired workers benefits are available—than at other

ages.”); Natalie Kramer, Employee Benefits for Older Workers, MONTHLY

LAB. REV. 21, 25 (April 1995) (noting that an important factor in deciding

when to retire is the amount of retirement benefits available).

14

testifying to the lack of financial resources, the defendant

may introduce evidence of receipt of RRA disability benefits

to show that, in fact, the plaintiff is not impecunious. Lange v.

Missouri Pac. R.R., 703 F.2d 322 (8th Cir. 1983); Gladden v.

Henderson & Co., 385 F.2d 480 (3rd Cir. 1968); Moore v.

Missouri Pac. R.R., 825 S.W.2d 839 (Mo. Banc 1992). In

Gladden, the court reasoned that “the collateral benefit rule

cannot be made a springboard from which a plaintiff may go

forward with affirmative evidence . . . and then seek immu-

nity from cross-examination regarding it. 385 F.2d at 484.

Similarly, when a FELA plaintiff has put forth evidence of

when he or she would have retired, the defendant should be

permitted to rebut such evidence with reference to the date on

which retirement benefits would have been available under

the RRA. Permitting this evidence would not only restore

balance to FELA litigation, it would be consistent with the

underlying policy of FELA of providing compensation only

for the actual loss suffered. Norfolk & Western Ry. Co. v.

Liepelt, 444 U.S. 490 (1980) (Defendant is permitted to

introduce evidence of the effect of income taxes on lost

wages so the jury will not overcompensate the plaintiff.);

Michigan Cent. R.R. v. Vreeland, 227 U.S. 59, 71 (1913).

D. Eichel Does Not Prohibit Trial Courts From

Using Their Discretion to Balance the Pro-

bative Value of Evidence of RRA Benefits

Against Possible Prejudicial Effects

Rather than prohibiting a balancing test, Eichel utilized a

traditional balancing analysis in upholding the discretion

exercised by the trial court in that case:

In our view the likelihood of misuse by the jury clearly

outweighs the value of this evidence . . . . there will

generally be other evidence having more probative value

and involving less likelihood of prejudice than the

receipt of a disability pension . . . . Similarly, we must

recognize that the petitioner’s receipt of collateral social

15

insurance benefits involves a substantial likelihood of

prejudicial impact. We hold therefore that the District

Court properly excluded the evidence of disability

payments.

Eichel, 375 U.S. at 255. It is clear that Eichel did not adopt a

bright-line per se rule of exclusion. Instead, this Court

simply held that the trial judge properly applied the balancing

test, now required under Fed. R. Evid. Rule 403, and,

therefore, did not abuse its discretion in excluding the

evidence.’

While some courts have misread Fichel as standing for a

per se rule of exclusion,'° others have recognized that Eichel

is consistent with a balancing analysis, creating a split in the

Circuits on this issue. See Petition at 21-22. In McGrath v.

Consolidated Rail Corp., 136 F.3d 838 (1st Cir. 1998), the

First Circuit reviewed the trial judge’s decision to admit

evidence of the plaintiff’s receipt of RRA benefits for abuse

of discretion, properly interpreting Eichel as requiring that the

admissibility of this evidence be subjected to the Rule 403

balancing test:

We do not read Eichel as requiring the per se exclusion

of collateral source evidence in FELA cases. .. . [T]he

narrower question in Eichel was simply “whether or not

to uphold the district court’s discretionary ruling.”

[citation omitted]. Indeed, although the Supreme Court

decided Eichel prior to the enactment of the current

Federal Rules of Evidence, the analysis in the Eichel

'S Rule 403 vests in the trial judge broad discretion to exclude relevant

evidence, the probative value of which is outweighed by its prejudicial

impact on the party opposing its admission.

'® See e.g., Green supra; Wilcox v. Clinchfield R.R., 747 F.2d 1059 (6th

Cir. 1984); Sheehy v. Southern Pac. Transp. Co., 631 F. 2d 649 (9th Cir.

1980) (‘“{c]ourts have consistently interpreted Eichel to preclude

admission of evidence of collateral benefits...the discretion normally

applicable to admit all relevant evidence of collateral benefits is greatly

limited in FELA cases.” 631 F. 2d at 651-652).

16

decision “does not appear inconsistent with Rule 403.”

[citation omitted]... . We do not believe that the Eichel

court established a bright-line rule barring the admission

of collateral source evidence on the issue of malingering.

The Supreme Court simply determined that the district

(sic) court abused its discretion because the prejudicial

impact of the evidence outweighed its probative value.

Here, we come to the opposite conclusion.

136 F.3d 838, 841 (1998).

In contrast, the reliance by the court below on Hileman v.

_ Pittsburgh & Lake Erie R.R., 685 A.2d 994 (Pa. 1996), to

support its conclusion that it is impermissible to balance the

probative value of evidence related to RRA benefits against

the likelihood of prejudice, is misplaced. In Hileman the

court held it was improper to advise the jury that the plaintiff

was not eligible to receive workers’ compensation benefits.

By analogy, the court below reasoned that it was similarly

impermissible to advise the jury of the plaintiff’s eligibility

for retirement benefits under the RRA.

These situations are distinguishable. In a FELA suit, the

employee’s ineligibility for workers’ compensation benefits is

entirely irrelevant. Congress has determined that rail employ-

ees are entitled to compensation for work-related injuries only

if the injury results from the employer’s negligence,"’

regardless of whether the worker is without another source of

compensation. Advising of a worker’s ineligibility can only

serve the purpose of causing the jury to look for a reason to

award compensation; it has no bearing whatsoever on the

employer’s liability or the level of damages. Thus, there is no

probative value to balance against the prejudicial effect.

Stillman v. Norfolk & Western Ry., 811 F.2d 834 (4th Cir.

'7 RELA “does not make the employer the insurer of the safety of his

employees whi'e they are on duty.” Consolidated Rail Corp. v. Gottshall,

512 U.S. 532, 543 (1994); Ellis v. Union Pac. R.R., 329 U.S. 649, 653

(1947).

a tiietiniaiiniia alae a a i

17

1987); Weinell v. McKeesport Commuter R.R., 411 F.2d 510

(3rd. Cir. 1969).

On the other hand, the age at which a rail employee would

have been eligible for RRA retirement benefits is very

pertinent to the question of when the employee would have

decided to retire and cease earning wages and, therefore, to an

element of damages. In fact, since most members of a jury

are likely to be far more familiar with the Social Security

System than with the RRA, they may harbor misimpression

about the latter and erroneously assume that normal retire-

ment age under the RRA is the same as under Social Security.

In fact, the RRA permits retirement at full benefits at an

earlier age than does the Social Security System. See supra

note 3. Without information about the former, the jury will

be misled about the extent of a FELA plaintiff’s wage loss.

Since the adoption of Fed. R. Evid. Rule 403, a bal-

ancing test is the standard by which the admissibility of a

plaintiffs receipt of collateral source benefits should be

judged. This Court should review this case in order to clarify

this aspect of its Eichel decision and unburden the lower

courts from the shackles some have imposed on themselves

by their improper readings of Eichel.

ll. THIS COURT SHOULD REVIEW THIS CASE

BECAUSE EXCLUDING EVIDENCE ON WHEN

A FELA PLAINTIFF WOULD BE ELiGIBLE TO

RETIRE WITH A FULL RRA AGE AND

SERVICE PENSION WILL HAVE A SIGNIFI-

CANT IMPACT ON THE OUTCOME OF MANY

FELA CASES

This court should clarify its Eichel decision because its

misapplication by the court below will have a tremendous

impact on the level cf damages awarded in many of the

thousands FELA suits “iled each year. A fundamental

difference between FELA and workers’ compensation is that

18

the latter generally caps the amount of wage loss benefits

payable, while under FELA there are no such limits.'* Thus,

not only can FELA verdicts be substantial, a major

component of any FELA suit where a disabling injury is

alleged is future lost wages (or earning capacity) of the

plaintiff. This amount is arrived at by determining the

plaintiff's remaining work life and the difference between

what the plaintiff was earning before the injury and his or her

earning capacity in the future, subject to a duty to mitigate

damages. See DeBiassio v. Illinois Cent. R.R., 52 F.3d 678,

687-88 (7th Cir. 1995)

Verdicts for substantial future lost wages, running well

over $1 million, are frequently returned by FELA juries. F.g.,

DeBiassio supra (award of $1.15 million for future lost

earnings upheld.); Maliska v. Southern Pac. Transp. Co., No.

B-153, 936 (Jefferson Cty. Dist. Ct., Beaumont, Tx. 1998)

(awarding $2 million for future wage loss), reprinted in 18

No. 7 Verdicts, Settlements & tactics 307 (July 1998);

Crouch v. CSX Transp., Inc., No. L 94-1055 (Portsmouth, Va.

Feb. 10 1997) ($12 million awarded to plaintiff whose future

wage loss claim had a present value of $1.3 million),

reprinted in 17 No. 5 Verdicts, Settlements & Tactics 31

(May 1997). Thus, the assumptions juries make when

'8“(T}he amount of compensation for disability depends on the

workers’ previous earning level, for most acts award a percentage of

average wage, somewhere between a half and ‘wo thirds. But practically

all acts also set a maximum in terms of dollars per week...” 1 A.

LARSON & K. LARSON, LARSON’S WORKERS’ COMPENSATION LAW

§ 1.03[5] (2000 ed.). “It was never intended that compensation payments

{under workers’ compensation] should equal actual loss, if for no other

reason than that such a scale would encourage malingering.” /d. On the

other hand, a compensatory damages award under FELA will be deemed

excessive only if it “shocks the judicial conscience.” Schneider v.

National R.R. Passenger Corp., 987 F.2d 132, 137 (2d Cir. 1993). ($1.75

million verdict, including over $1 million in intangible damages, not

excessive).

seaeeeeaneaeaeiaeaeaaaaeaneaemmaeaene

19

calculating wage loss damages play an important role in the

outcome of a case.

When the parties offer the jury different assumptions about

when, but for the injury, the plaintiff would have retired, and

thus, ceased to earn wages from the railroad, a substantial

amount of money may be at stake. See Petition at 20, n. 16.

Therefore, it is essential the jury have some basis for deciding

which assumption is more likely. In FELA cases, juries

typically are given wide discretion to make determinations of

fact, see Rogers v. Missouri Pac. R.R., 352 U.S. 500, reh’g

denied, 353 U.S. 943 (1957), including questions about the

extent of damages suffered. Schirra v. Delaware, L. & W.

R.R., 103 F.Supp. 812, 823 (M.D. Pa. 1952); Seaboard Coast

Line R.R. v. Gillis, 321 So.2d 202, 208 (Ala. 1975).

Remarkably, the court below saw fit to deny the jury

important evidence directly related to the extent of the

damages suffered, on the unsupported assumption that it

would confuse the jury.” This Court has never suggested,

nor is there any reason to assume, that juries are likely to

confuse the purpose of retirement benefits with disability

benefits to the point where evidence of the former must be

categorically excluded despite its relevance to an important

issue in many Cases.

Prior to Eichel, lower courts freely used their discretion to

permit the introduction of evidence of the age at which an

employee would have been eligible for retirement benefits.

Murray v. N.Y., N.H. & Hartford R.R., 255 F.2d 42 (2nd Cir.

'9 Other courts have taken it upon themselves similarly to expand

Eichel. See Rrumley v. Federal Barge Lines, Inc., 396 N.E.2d 1333 (Ill.

App. 1979) (Jones Act case) (“The possibility of prejudice resulting from

the admission of social security and retirement benefits is readily

apparent. The jury could easily confuse the purpose for which such evi-

dence was admitted.” Id. at 1340.); Lee v. Consolidated Rail Corp., 1995

WL 734108 (E.D. Pa. 1995); Kimmen v. Consolidated Rail Corp., 1999

WL 148360 (E.D. Pa. 1999)).

20

1958) (A plaintiff's “pension rights were relevant to a

determination of his probable lost future earnings.” /d. at

45.); See also Reiner v. Northern Pac. Terminal Co., 259

F.2d 438, 440-41 (9th Cir. 1958); Simmons vy. Union Terminal

Co., 290 F.2d 453 (Sth Cir. 1961). The consequence of the

subsequent retreat from this logic is greatly to inflate in many

FELA cases the level of damages for which railroads are

liable.

Only this Court can correct the prevailing assumption by

lower courts that they have been stripped by Eichel of their

normal discretion to weigh the probative value of evidence.

This Court has granted certiorari in other cases to address

claims that the lower courts misconceived the meaning of a

prior Supreme Court decision. See e.g.,Wilkinson v. United

States, 365 U.S. 399 (1961)(“We granted certiorari [citation

omitted] to consider the petitioner’s claim that the Court of

Appeals misconceived the meaning of the Barenblatt [v.

United States] decision.” /d. at 401.); Johnson v. United

States, 333 U.S. 46 (1948) (“This case is here on a petition

for a writ of certiorari which we granted because of the

seeming misapplication of Jesionowski v. Boston & M.R. Co.

[citation omitted].” /d. at 47.) There could not be a

starker example than the case below of a lower court

misconceiving a decision of this Court with persistent and

recurring real world consequences.”

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari in this case should be granted.

© This Court also has granted certiorari in other recent cases to assure

that lower courts interpret FELA correctly. E.g., Norfolk & Western Ry. v.

Hiles, 516 U.S. 400 (1996); Consolidated Rail Corp v. Gottshall, 512 U.S.

532 (1994); Monessen Southwestern R.R. v. Morgan, 486 U.S. 330 (1988).

Respectfully submitted,

LOUIS P. WARCHOT

DANIEL SAPHIRE *

ASSOCIATION OF AMERICAN

RAILROADS

50 F Street, N.W.

Washington, D.C. 20001

(202) 639-2505

* Counsel of Record Counsel for Amicus

August 24, 2001