United States District Court, S.D. New York
ORDER AND MEMORANDUM
REICE BUCHWALD UNITED STATES DISTRICT JUDGE.
sued her employer, National “Railroad Passenger
Corporation d/b/a Amtrak (“Amtrak”), under the
Federal Employers' Liability Act (“FELA”), 45
U.S.C. § 51, et seq., for injuries sustained when she
fell at work. In advance of trial, the parties filed motions
in limine. Oral argument on the record addressing the motions
in limine was held on April 20, 2017.
issue concerning evidence addressing plaintiff's
retirement age remained following argument. Plaintiff's
counsel has informed the Court that she will testify that she
intended to work until age 66 and 3.5 months had she not been
injured. To challenge that testimony and plaintiff's
credibility, defendant seeks to introduce evidence that
plaintiff would have been entitled to retire with partial
benefits at age 62 and full benefits at approximately age 67
if she had continued working for Amtrak. Plaintiff argues
that such evidence is barred under the collateral source
rule. For the reasons set forth below, we find
that defendant may introduce evidence concerning
plaintiff's retirement options at different ages.
collateral source rule is a substantive rule of law that bars
the reduction of an award by funds or benefits received from
collateral or independent sources.” King v. City of
N.Y., No. 06 CIV. 6516SAS, 2007 WL 1711769, at *1
(S.D.N.Y. June 13, 2007). “The rule is intended to
ensure that the availability of independent sources of income
providing compensation does not reduce plaintiff's
Eichel v. New York Central Railroad Company, the Supreme
Court applied the collateral source rule to a FELA case to
exclude evidence of collateral benefits offered for purposes
other than mitigating damages. The issue was whether the
defendant railroad could introduce evidence that plaintiff
was receiving disability payments in order to impeach
plaintiff's testimony as to the permanency of his
injuries and his motive for not returning to work. The
Supreme Court held that the evidence was inadmissible:
In our view the 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. . . . 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
375 U.S. at 255-56 (citations omitted) (footnotes omitted).
Thus, the “the general rule in FELA cases is that
evidence of payments made to plaintiff from collateral
sources is not admissible, though such evidence may be
admissible if the plaintiff puts his financial status at
issue.” Santa Maria v. Metro-N. Commuter R.R.,
81 F.3d 265, 272-73 (2d Cir. 1996).
the issue is whether defendant may introduce evidence that
plaintiff would have been entitled to retire at age 62 with
partial benefits in order to impeach her testimony that she
would have worked until age 66 and 3.5 months. As noted
earlier, plaintiff argues that defendant's proffered
evidence is barred by the Supreme Court's decision in
Eichel and subsequent case law.
does not address the issue presented here. Eichel is a true
collateral source case, and, even assuming that we could, we
would not reach a different result. Rather, as some of the cases
citing Eichel recognize, future, hypothetical retirement
benefits are not paradigmatic collateral source benefits.
See, e.g., Griesser v. Nat'l R.R. Passenger
Corp., 2000 PA Super 1999, ¶ 23, 761 A.2d 606, 612
(2000) (noting that “evidence at issue is not
‘classic' collateral source evidence”); see
also Evans v. Union Pac. R.R. Co., No.
13-CV-1732-WJM-BNB, 2015 WL 1945104, at *2 (D. Colo. Apr. 29,
2015) (finding that “Plaintiff does not explain how
evidence of the hypothetical possibility of retirement
constitutes impermissible evidence of a receipt of benefits
from a collateral source”).
we recognizes that there is a split in the cases. Compare
Lee v. Consol. Rail Corp., No. CIV. A. 94-6411, 1995 WL
734108, at *5 (E.D. Pa. Dec. 5, 1995) (excluding evidence of
age at which plaintiff could retire with full retirement
benefits under Eichel), Norfolk S. Ry. Corp. v. Henry
Tiller, 179 Md.App. 318, 944 A.2d 1272 (2008) (same),
and Griesser, 2000 PA Super 1999, 761 A.2d at 609 (same),
with Cowden v. BNSF Ry. Co., 980 F.Supp.2d 1106,
1127 (E.D. Mo. 2013) (admitting evidence), Stevenson v.
Union Pac. R.R. Co., No. 4:07CV00522BSM, 2009 WL 652932,
at *3 (E.D. Ark. Mar. 12, 2009) (same); and Gaskins v.
CSX Transp., Inc., No. 1:04-CV-2952-WBH, 2006 WL
6864633, at *9 (N.D.Ga. Sept. 5, 2006) (same).
we find that the above-cited cases excluding evidence of
retirement benefits are distinguishable. Those cases all
involved efforts by defendants to introduce evidence that the
plaintiff would be entitled to receive full
retirement benefits at an age earlier than the plaintiff had
maintained he would have retired. Thus, as the court in
Griesser noted, the introduction of evidence on early
retirement benefits could create a significant danger of
misuse and jury confusion to plaintiff's prejudice.
Griesser, 2000 PA Super 1999, ¶ 24, 761 A.2d at 612.
contrast, here, the evidence provides an incentive for
plaintiff to continue working until 66 and 3.5 months, as she
proposes, since additional years of working will not only
bring her additional earnings but will also increase her
retirement benefits. Moreover, even the cases that rejected
the proffered evidence acknowledge that defendants should be
able to challenge a plaintiff's stated intended
retirement age. Id. at 2000 PA Super 1999 ¶ 27,
761 A.2d at 613 (“We agree that Amtrak should be able
to present evidence tending to show that Appellant would not
work beyond age 60.”).
found that Eichel is inapplicable, we find that the evidence
is admissible under Federal Rule of Evidence 403. There is no
question that the evidence is highly probative to the
question of when plaintiff would have retired, which is the
central issue in calculating plaintiff's lost future
wages. In contrast, we do not find it likely that the
evidence will confuse the jury or prejudice plaintiff. Since
the retirement benefits are hypothetical rather than actual,
there is no reason for the jury to offset plaintiff's
award by the benefits she might have received if she had not
been injured. More importantly, as noted earlier, the
evidence is in some ways helpful to plaintiff, since it
provides a justification for her working beyond the minimum
retirement age, namely, that she wished to retire with full
rather than partial benefits. To the ...