The opinion of the court was delivered by: LOUIS L. STANTON
Shepherd sued his employer, defendant Metro-North Commuter Railroad Company ("Metro-North"), pursuant to 45 U.S.C. §§ 51-60, the Federal Employers' Liability Act ("FELA"), alleging that while working for Metro-North he suffered an eye injury because of Metro-North's negligence.
Trial of this action commenced on November 12, 1991. On November 14, 1991 the jury rendered a unanimous verdict in the form of answers to interrogatories.
The jury found that Metro-North was negligent and that its negligence contributed to the accident. In the space for lost earnings damages, the jury wrote "$ 19,600 and see attached sheet." The attached sheet, which all six jurors signed, states: "Our intention is to award Mr. Shepherd (sic) $ 19,600 in lost earnings without reduction for legal or any other expenses he may have had or incur in the future. We wish the court to set an amount above this amount for legal fees that are appropriate." The jury awarded no damages for diminution of future earning capacity and future out-of-pocket medical expenses. In the space on the verdict form for damages for pain, suffering and loss of enjoyment of life, the jury wrote "$ 25,000 - 90% = $ 2500.00." In response to the last question, the jury found that Shepherd's negligence contributed 90% to causing his injury.
Shepherd argues that judgment should be entered in his favor in the amount of $ 37,314.40. He argues that the jury did not intend that the lost earnings damages be reduced by 90%, and therefore the verdict in his favor was for $ 22,100 [19,600 (25,000 less 90%)]. Based on this "verdict", he claims that the 1/3 contingency fee payable to his attorney would be $ 7,366, and that his additional legal expenses were $ 7,848.40, all of which should be included to reach a total judgment in the amount of $ 37,314.40.
1. "The FELA, however, unlike a number of other federal statutes, does not authorize recovery of attorney's fees by the successful litigant." Norfolk & Western R.R. Co. v. Liepelt, 444 U.S. 490, 495, 100 S. Ct. 755, 758, 62 L. Ed. 2d 689 (1980) (footnote omitted) (dictum); Thomas v. Burlington Northern R.R. Co., 1991 U.S. Dist. LEXIS 16811 (N.D. Ill. 1991). The jury's wish to award Mr. Shepherd his attorney's fees finds no support in the law under which he sued, and it is without effect. Accordingly, Shepherd's attorney's fees and litigation expenses will not be included in the judgment in his favor.
2. Shepherd argues that the jury did not intend that the $ 19,600 lost earnings damages be reduced by 90%, despite its finding that his own negligence was 90% of the cause of his injury. He relies on the fact that the jury's form of verdict performed the subtraction of 90% from the pain and suffering portion of the award, but did not itself subtract 90% from the lost earnings portion of the award.
Under the FELA, 45 U.S.C. § 53, "the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee." Therefore, assuming that the jury found that Shepherd suffered lost earnings of $ 19,600 because of the accident, that award must be reduced by the percentage of Shepherd's contributory negligence. See Taylor v. Burlington Northern R.R. Co., 787 F.2d 1309, 1314 (9th Cir. 1986).
Shepherd argues that because his lost earnings were not caused by the accident, but rather were caused by Metro-North's independent, intervening, wrongful act of refusing to permit him to return to work, his contributory negligence should not affect this portion of the award.
However, the FELA does not provide a cause of action, or allow recovery, under a theory of "wrongful refusal to reinstate." If the accident was not the legal cause of the lost earnings, Metro-North is not liable for them under the FELA. Even if Metro-North were required timely to reinstate Shepherd under some other statute or contract, the basis for that requirement was never alleged in the pleadings or presented to the jury, and therefore the verdict cannot be interpreted as resting on Shepherd's theory of "wrongful failure to reinstate."
The straightforward reading of the verdict is that Shepherd was awarded $ 19,600 to compensate him for lost earnings, (according to the form's language: "Indicate the amount awarded plaintiff as compensatory damages for: (a) Lost Earnings: $ 19,600 . . ."), and since his own negligence caused 90% of his injury, those damages must ...