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April 24, 1990


The opinion of the court was delivered by: Weinstein, District Judge.


Plaintiff James Earl, a 66 year-old former tugboat deck hand, brings an action against his employer under the Jones Act, 46 U.S.C. App. § 688, and general maritime law for injuries suffered as a result of two separate accidents in 1984. As a consequence of his injuries he claims he was forced to retire on May 16, 1985, approximately a month before turning 62. He claims damages for, inter alia, loss of future earnings on the grounds that, absent injury, he would have continued to work at least an additional three years and five weeks — that is, until his 65th birthday, if not longer.

After a three day trial, the jury found for plaintiff and awarded him a total of $855,000 in damages, of which $425,000 was attributed to lost earnings suffered as a result of the second accident. Defendant moves for a new trial or remittitur.

There exists at least some evidence to support a finding that Earl, absent the accident, would have been able to work past the age of 62 and that he would have done so. Regardless of his pre-accident intentions, it is apparent that plaintiff's earning capacity — or work-capital — was permanently impaired or depleted as a result of his injuries.

Theoretically the human working machine can last (with some decreases in effectiveness through illness and decrepitude) — and thus has economic value — almost to the point of death. As a matter of law, then, an award taking into account any loss of value due to injury or death caused by a tortfeasor, can take into account even this residual and declining loss of value up to the time of predicted death. There is a considerable effort in a shrinking labor market to keep older people employed beyond the usual date of retirement. See Lewin, Too Much Retirement Time? A Move is Afoot to Change It, N Y Times, Apr. 22, 1990, § 1, at 1, col. 1. In fact, realities of the labor market in an industrial-commercial world make it unlikely that the last possible moment of a worker's time would be purchased by an employer. Moreover, as age increases, the probability that the worker may claim total disability, using the injury as justification for not pushing himself or herself to work probably increases.

These subtle nuances between loss of full work-capital value at one end of the spectrum and malingering at the other are generally best left to the judgment of the community as reflected in the jury's verdict. In computing the full value of a tort victim's depleted work-capital the jury may consider a variety of factors that differ from plaintiff to plaintiff, such as past earnings, the marketplace value of an individual's skills, the availability of suitable employment, and average work-life expectancy as projected by government statistical tables. This value may be affected as a result of particularized evidence bearing on a plaintiff's pre-accident intentions and proclivities. For example, if the jury credited evidence that before being injured a plaintiff had intended to retire early, a reduction of the full value of an award would be justified under the doctrine of mitigation of damages, which requires tort victims to find alternative employment whenever possible. The award may be increased to the full or close to full value if, on the other hand, the jurors believed that a plaintiff was likely to work beyond that age at which the statistical tables or their common sense experience would normally predict retirement.

Where a jury verdict seems lopsidedly to favor one side or the other, the court has the obligation to require some equalization. This is such a case. Defendant's contention that there was no loss of earning capacity is unfounded. Nevertheless, for the reasons discussed below, defendants' motion for remittitur as to the award for future loss of earnings must be granted since an excessive award was made. Other adjustments are referred to below.

I. Background

A. The Parties' Claims

Earl claimed that he injured his right elbow in an August 29, 1984 accident and that he injured his ankle and reinjured his elbow in a second accident on December 13, 1984. Both accidents occurred while he was working on the Marion C. Bouchard, a tugboat owned by plaintiff's employer, defendant Bouchard Transportation Co. Plaintiff contended, and the jury found, that both accidents occurred as a result of the employer's negligence and the unseaworthiness of the tugboat.

As a consequence of the first accident, Earl claimed he was unable to work for two weeks. It was undisputed that he was unable to work for 11 days after the second accident. He returned to work approximately a month later, in early 1985, but claimed that his injuries eventually forced him to retire on May 16, 1985 — three years and five weeks before his planned retirement at age 65.

Evidence adduced by defendants at trial indicated that plaintiff's intention prior to the accidents had been to retire in June of 1985 when he turned 62 years of age. Captain Kenneth Bekkelund of the Marion C. Bouchard testified that it had been common knowledge prior to Earl's December 1984 accident that he "was looking forward to retiring and talked of it frequently." Bekkelund testified that none of the crew had been surprised when plaintiff retired in May 1985. A member of the tugboat crew testified that Earl said nothing about being unable to work when he called to announce his retirement. Defendants also claimed that Earl had communicated his intention to retire to the family doctor treating him for the ankle injury even before the doctor had formally certified that Earl was "not fit for duty."

Plaintiff testified that he "would probably have retired . . . at 65." He denied having spoken about early retirement plans to his captain or fellow crew members. With regard to his doctor, Earl acknowledged that while he may have "discussed the possibility" of retiring, he did not recall having informed his physician of any definite plan to do so. In his closing argument, plaintiff's counsel presented the jury with two possible scenarios: retirement at age 65 as plaintiff testified was his intention, or retirement at age 67, based on the average work-life expectancy of a then-62-year old man. In its charge to the jury the court presented the issue of retirement age as one of disputed fact.

B. Remittitur

The $425,000 awarded for the loss of prospective earnings can be upheld only if the record contained evidence that plaintiff had the intention and ability to work past the age of 70, or, if not, could nonetheless have reasonably expected to receive an enormous — and unprecedented — increase in wages during the twilight years of his career as a deck hand. The record supports neither proposition.

Accordingly, the court grants defendants' motion for a remittitur. See generally Shu-Tao Lin v. McDonnell Douglas Corp., 742 F.2d 45, 49 (2d Cir. 1984) (practice of remittitur is appropriately employed where court can identify error that caused jury to include in verdict a quantifiable amount that should be stricken). See also Bevevino v. Saydjari, 574 F.2d 676, 684 (2d Cir. 1978) ("The trial judge is free to weigh the evidence himself and need not view it in the light most favorable to the verdict winner.") (cited approvingly in Saleeby v. Kingsway Tankers, Inc., 531 F. Supp. 879, 888 (S.D.N.Y. 1981) (Jones Act)); Filkins v. McAllister Bros., Inc., 695 F. Supp. 845, 851 (E.D.Va. 1988) (question of excessiveness of verdict is one left largely to ...

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