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.
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.
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
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.
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 ...