Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-20-2004

Colyer v. Consolidated Rail
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3890




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 02-3890
                                     ____________

                               CARL R. COLYER, SR.,

                                            Appellant,

                                            v.

                      CONSOLIDATED RAIL CORPORATION,

                                  _________________

           ON APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE WESTERN DISTRICT OF PENNSYLVANIA

                                 (Dist. Ct. No. 02-84J)
                      District Court Judge: Hon. D. Brooks Smith


                                 Argued March 9, 2004

 Before: SLOVITER, NYGAARD, Circuit Judges, and OBERDORFER,* District Judge.

                           (Opinion Filed: October 20, 2004)


                              ______________________

                              OPINION OF THE COURT
                              ______________________



      *
        The Honorable Louis F. Oberdorfer, Senior District Judge, United States District
Court for the District of Columbia, sitting by designation.
Mary E. Dixon, Esq.
White & Williams
One Liberty Place
Suite 1800
Philadelphia, PA 19103
                    Counsel for Appellant

J. Lawson Johnston, Esq.
Dickie, McCamey & Chilcote
Two PPG Place
Suite 400
Pittsburgh, PA 15222
                    Counsel for Appellee


OBERDORFER, District Judge:         Plaintiff-appellant Carl Colyer sued Consolidated Rail

Corporation 1 (“Conrail”) under the Federal Employers’ Liability Act (“FELA”), 45

U.S.C. §§ 51 et seq., for damages resulting from an accident he suffered while working

for Conrail in 1998. A jury found Conrail negligent and awarded Colyer $20,000, which

the trial judge reduced to $4000 based on the jury’s finding that Colyer was 80%

responsible for the accident.

       On appeal, Colyer challenges the following district court decisions: (1) the denial

of his request for post-trial relief on the ground that the jury verdict on contributory

negligence was not supported by the evidence; (2) the denial of his request for a new trial

based on “newly discovered evidence,” namely, his employer’s finding him unfit to return




       1
               Some Conrail operations -- including those at the facility where Colyer
worked -- were taken over by Norfolk Southern Railway Company (“Norfolk Southern”)
in 1999, after the injury but during Colyer’s post-injury employment.

                                              2
to work immediately after trial, despite testimony at trial that he would be able to return to

his old position; and (3) the granting of defendant’s motion for judgment as a matter of

law as to damages for lost future earning capacity.

       We affirm the district court’s decisions on the first two issues. As to the third,

appellant persuades us that the accident deprived him of physical capacities requisite to

performing work he could perform before the accident. We therefore reverse and remand

for retrial on the issue of damages for lost future earning capacity.

I

       A.     Facts and Factual Disputes at Trial

              1.     The Plaintiff’s Injury

       Colyer worked as a carman in the Conrail Locomotive Repair Shop in

Hollidaysburg, Pennsylvania at the time of his injury. A carman’s duties may include

repair of train cars, masonry, and painting. Colyer had performed all these jobs at various

times in the 24 years he was employed as a carman for the railroad.

       On the afternoon of March 9, 1998, while using an acetylene torch to repair a

damaged train car, Colyer sustained third-degree burns to a two-inch by three-inch area

on the top of his left foot. Colyer was using the torch to “burn” areas of the car, that is,

using the torch’s heat to soften or melt metal parts of the rail car to remove or smooth

them (rather than to weld things together). Burning is performed with use of a torch

connected to two hoses, one for acetylene and one for oxygen.



                                              3
       There was conflicting testimony at trial as to how the accident occurred. Colyer

testified (with the support of several eyewitnesses) that he was injured when some type of

explosion released a fireball from a hole on the side of one of the hoses attached to his

torch. Conrail’s witnesses testified that Colyer’s injury most likely occurred when a piece

of hot metal or “slag” from the burning procedure fell into or onto Colyer’s boot.

       There was also conflicting evidence as to the extent to which the railroad’s

negligence, or Colyer’s, caused or contributed to the accident, regardless of how it

occurred. Colyer introduced expert and lay testimony that Conrail did not properly

maintain, inspect, or store the hoses in its shop, and that the hoses were often in poor

condition. A section of the hose that Colyer had been using the day of the accident was

introduced at trial. There was at least one hole visible in that section. Witnesses for both

parties agreed that it would not be safe to use the section of hose in the condition it was in

when introduced at trial. However, no one was able to say where that section had been

located on the hose (near or far from where Colyer had been working), nor whether any

hole (or holes) existed at the time of the accident.

       Before using the torch the day of the accident, Colyer inspected the four- to six-

foot area of the hose closest to where he was working and saw no particular problems.

The parties agreed that it was Colyer’s duty, confirmed by the Conrail Safety Rules, to

inspect his equipment. There was conflicting testimony, however, as to whether Colyer’s

inspection satisfied company and industry standards or whether he should have inspected



                                              4
the entirety of the hose.

       The parties also introduced conflicting testimony as to whether Colyer’s injuries

could have been avoided (or minimized) if he had worn spats over his boots to provide

additional protection, and whose fault it was that Colyer was not wearing spats at the time

of the accident. Spats were not part of the safety gear Conrail required, but the company

generally had them available for carmen who wished to wear them. Colyer testified that

he had requested spats on the day of the accident, but Conrail had none available that day.

Conrail pointed to evidence (from one of Colyer’s experts) that, as a general rule, Colyer

did not wear spats because he saw them as a tripping hazard.

              2.      Medical Treatment and Diagnosis

       Three weeks after the accident, on March 31, 1998, Dr. Louton, a plastic surgeon,

performed a full thickness skin graft to reconstruct the skin that had been destroyed by the

third-degree burns. The surgery was successful. After a several-month recovery period,

Colyer was released to work without restrictions; he returned to work as a carman on or

about June 16, 1998.2

       Approximately one year later, in June and July of 1999, Colyer consulted Dr.

Opida, a neurologist, about lessened sensations and occasional intermittent pain on the

outside of his injured foot. Dr. Opida testified that the symptoms reflected sensory nerve




       2
              The parties stipulated that Colyer’s lost wages from the time of the accident
through his initial return to work in June 1998 totaled $6,864.00.

                                             5
damage that was likely to be permanent, but that the motor nerves were not damaged.

The neurologist testified that the sensory nerve damage appeared to be an after-effect of

Colyer’s burn, but acknowledged that this conclusion was based on the information he

received from Colyer as to the onset of his symptoms. The neurologist prescribed some

medication for Colyer but it did not resolve the problem or reduce the symptoms.

       The following summer, in July of 2000, Colyer returned to Dr. Louton (the plastic

surgeon who had performed the skin graft) complaining about irritation between the

fourth and fifth toes of his left foot. At Dr. Louton’s suggestion, Colyer consulted a

podiatrist, Dr. Raymond, about this problem. Dr. Raymond diagnosed Colyer as having

severe corns between those toes and as having hammer toes on toes two, three, four and

five (all but the big toe) of both his feet. Dr. Raymond testified that the hammer toes

were unrelated to the burn and appeared to pre-date the injury, but that the severe corns

on the toes of his left foot “could be related to the work-related injury” if Colyer “was

altering his gait and putting additional pressure on the outside of his foot to avoid

pressure” on the locations where it was painful. AR128, 131. On cross-examination, Dr.

Raymond conceded that he was “not sure” whether the problem with the fourth and fifth

toes of Colyer’s left foot was related to the burn. Dr. Raymond initially treated Colyer by

trimming the corns every few months, but eventually decided surgery was needed to

correct the hammer toes on the fourth and fifth toes of Colyer’s left foot in light of the

severe and recurring corns there. Dr. Raymond performed surgery on August 20, 2001.



                                              6
       Colyer also introduced the expert testimony of Dr. Wardell, an orthopedic surgeon

who examined Colyer on September 21, 2001 (about a month after his surgery). Dr.

Wardell testified that Colyer suffered permanent nerve damage as a result of the burn. He

also testified that the burn had caused a “gait abnormality . . . due to the limited motion,

limited excursion of [the extensor] tendons . . . . [B]ecause of the dysfunction due to the

scarring of the tendons, he lacked the push-off because the tendons held the toes up.” AR

278. According to Dr. Wardell, the “callus lesions over the fourth and fifth toes [were]

secondary to the gait abnormality that was due to the burn.” AR 279.

              3.     Ability to Work / Loss of Future Earnings Capacity

       On December 6, 2001, Dr. Raymond cleared Colyer to return to work as of January

5, 2002. Although Dr. Raymond did not place any particular restrictions or limits on

Colyer’s ability to work, he testified that, as of Colyer’s December 2001 physical

examination, his injuries placed “physical limitations” on him in that “any activity that

would require [him] to place his foot in a downward position such as going down a

ladder, walking down an uneven surface, [or] kneeling in which his foot is placed in a

backward position could create or would create discomfort.” AR 135.

       Dr. Wardell testified that Colyer had a “10 per cent permanent impairment of his

left lower extremity.” AR 282. He stated that “as a result of the injury and the type of

surgery that [Colyer] had, even with a successful result, he would not be able to perform

the job of a carman,” AR 281, which, he explained, include “stand[ing] and walk[ing] for



                                              7
prolonged periods of time, . . . squatt[ing], crawl[ing], kneel[ing], crouch[ing] and

stoop[ing,] climb[ing] on irregular surfaces . . . or . . . vertical ladders or steps which are

fairly steep.” AR 274.

       Cross-examination focused on the fact that Dr. Wardell had examined Colyer only

once, and then approximately a month after his surgery. Dr. Wardell conceded that he

would need a functional capacity assessment performed after Colyer attained maximum

improvement after his foot surgery to know precisely what work restrictions Colyer

would operate under. Nonetheless, Dr. Wardell maintained that, if Colyer returned to his

old job, his painful calluses and lesions would recur. Although Dr. Wardell conceded that

Colyer could physically perform a carman’s job once he recovered from surgery, he said

that Colyer “would have to put up with the onset of the painful calluses,” which “will

cause enough pain that he should not work [as a carman].” AR 296-97.

       Colyer testified that “it’s difficult” for him to do the work necessary for a carman’s

job, because that “necessitates climbing, crawling, bending over, kneeling down, [and]

bending your foot in different positions.” He testified that while he could likely do the

work required by some carman positions (most likely as a mason, which Colyer seemed to

believe was the type of carman position least likely to exacerbate his symptoms), there

would be no assurance that he could keep any such position since more senior employees

frequently “bump” those with less seniority down to less desirable and more taxing jobs.

Other employees who testified confirmed the seniority “bumping” procedures. Colyer’s



                                               8
former supervisor testified that Colyer himself would be entitled to “bump” only one of

the people holding a mason position, suggesting that he might not be able to keep that

position. At the time of trial, Colyer had submitted the paperwork necessary to return to

work and was scheduled for a company physical that was required before he could

attempt to return to work.

       Colyer also testified that he had made “inquiries” to find out about alternate

employment while he was recovering from his surgery:

       A.     . . . I started sending my resume to different people and different places and
              the job center. As a matter of fact I was just out there last week at the job
              center, at the training center. I went there and applied for a job that Mr.
              Krause is going through to help teach, but it was a welding job, and I told
              them that I wouldn’t be able to hold a welding job but I thought maybe it
              was some other type of job. But I have called numerous people and I sent
              out numerous resumes, and the City of Altoona is kind of tough right now.
              I have a degree in building construction technology from Williamsport
              Trade School, so I’m pretty good at carpentry and masonry work, but it’s
              kind of hard to do. . . .

       Q.     The work you checked on that you can do, how much would it pay?

       A.     It seemed to me about the average job out there was about $8 an hour.

       Q.     Have you been able to get a job?

       A.     Not yet.

AR 346-47.

       B.     Trial and Verdict

       Trial began on January 15, 2002. At the close of Colyer’s case in chief, Conrail

moved for judgment as a matter of law. The district court denied the motion as to liability

                                             9
but deferred ruling as to Colyer’s claim for damages for loss of future earning capacity.

At the close of evidence, on January 22, 2002, the court granted Conrail’s motion as to

the future earning capacity claim. The court held that “Colyer has provided some

evidence that he has a permanent disability and cannot return to his job as a carman, but

has not offered any evidence to show that he would have difficulty obtaining work with

other employers, that he is only qualified for other jobs that are less lucrative than his

former job with defendant or even that his injury limits his economic potential.” AR 27.

The district court therefore removed from the jury the question of damages for lost

earning capacity, holding that Colyer had “not provided any evidence that could

demonstrate that his injuries narrowed the range of economic opportunities available to

him.” 

omitted).

       Thereafter, the jury returned a verdict for Colyer in the amount of $20,000. The

jury found that Conrail was 20% negligent and Colyer 80% negligent as to Colyer’s

injuries. The judge then molded the verdict to reflect the jury’s contributory negligence,

resulting in a verdict of $4,000.

       C.     Post-Trial Attempt to Return to Work

       One week later, on January 29, 2002, Colyer underwent a functional capacity

evaluation that was required before he could return to work. The functional capacity

report by ProCare Rehabilitation (the “ProCare report”) identified “left foot pain” and

“difficulty returning to work on a full time, unrestricted basis” as Colyer’s “primary



                                              10
problems” AR 57. It listed a “diagnosis” of “burn dorsal left foot; hammertoe 4th and

5th.” The ProCare report stated that Colyer had attained a “physical demand category” of

“light-medium.” 

stated that Colyer’s “symptom magnification test rating” was

“high” and that he had not given “maximum effort,” noting that his “actual capacities may

be higher vs. reported.” 

to the ProCare report -- dated January 31, two

days after the examination -- notes under “Past Medical History” that Colyer reported

“bilateral shoulder soreness” and a “left rotator cuff tear” that would require surgery at

some time that had not yet been scheduled.

       The day after the functional capacity examination, January 30, 2002, Colyer’s

former supervisor, Bill Miller, called to tell Colyer that, based on the ProCare report, he

had been found not fit to return to work.

       D.     Post-Trial Motions

       Colyer moved for post-trial relief in the alternate forms of either an amendment of

the judgment or a new trial, in whole or only as to damages. He argued that the verdict

was against the weight of the law and the evidence. He also argued that the trial court

had erred in taking the question of damages for loss of future earnings away from the

jury. Finally, he claimed he was entitled to relief because of newly discovered evidence,

namely, his employer finding him unfit to return to work.

       The district court denied Colyer’s motion. In holding that the verdict was

consistent with the law and the evidence, the court stated:



                                             11
       There is ample evidence from which a jury may have concluded that the
       defendant was negligent in allowing hot slag to drop on his boot or in
       failing to wear spats. While plaintiff may believe that the award of
       damages was inadequate (and I must concede that I personally consider it
       quite low), a jury may have concluded that the plaintiff’s damages as a
       result of the injury were temporal in nature and limited to the months
       immediately following his burn and his return to work without limitations.

AR 39. The court also reaffirmed its holding as to Colyer’s future earnings claim.

Finally, the district court held that the “new evidence” did not justify a new trial. The

court held that the fact that Colyer “has been declared unfit for work with the defendant”

is “not ‘newly discovered evidence’ because the record already contained testimony from

plaintiff and his physician that he was unable to return to his job as a carman.” AR 41.

The court reasoned that the “evidence probably would not have changed the outcome of

the trial because the jury instructions still would not have included the damage elements

of loss of future earning capacity and loss of future wages.” 

acknowledged

that he saw this evidence as going farther than the evidence at trial in that it showed

Colyer could not “perform work above a medium level of exertion” and “demonstrates a

narrowing of the plaintiff’s economic horizons because he cannot perform heavy labor.”

nonetheless declined to grant relief “because this is the type of evidence

that could have been obtained prior to trial” and “counsel should have anticipated the

need for evidence of this nature prior to trial.” 

district court had jurisdiction over this FELA action pursuant to 28 U.S.C.



                                              12
§ 1331. We have jurisdiction over the appeal under 28 U.S.C. § 1291.

       A.     Motion for New Trial: Verdict Against the Weight of the Evidence

       Colyer moved for a new trial, in whole or as to damages only, on the grounds that

the jury verdict was against the weight of the law and of the evidence. The district court

denied that motion. Colyer challenges that decision, arguing that the evidence at trial

established that Conrail’s negligence was largely, if not entirely, responsible for his

injuries. He claims that the jury’s finding that he was 80% contributorily negligent was

not supported by the evidence. He also argues that the $20,000 jury award was so

inadequate as to constitute a miscarriage of justice, citing the district judge’s statement

that the award was “quite low.”

       We review for abuse of discretion the denial of a motion seeking a new trial on the

ground that the verdict is not supported by the evidence. Grazier v. City of Philadelphia,

, 128 (3d Cir. 2003). “[N]ew trials because the verdict is against the weight

of the evidence are proper only when the record shows that the jury’s verdict resulted in a

miscarriage of justice or where the verdict, on the record, cries out to be overturned or

shocks our conscience.” Williamson v. Consolidated Rail Corp., 

, 1353

(3d Cir. 1991). The district court properly recognized that “[t]his is not one of those

cases.” AR 39.

       The evidence at trial amply supports the jury’s conclusion that Colyer’s own

negligence was largely responsible for his injuries. For example, Colyer conceded that he



                                             13
was responsible for inspecting the hoses he used; the jury could have accepted the

testimony that welders should examine the entire length of the hoses they were using and

found Colyer’s inspection negligent, limited as it was to only a few feet of each hose.

Alternately, if the jury accepted the evidence that Colyer’s injury was caused by dripping

metal rather than a fireball from a defective hose, the jury could have found Colyer was

negligent in allowing hot slag to land on his foot. Moreover, the jury could have found

Colyer’s failure to wear protective spats to be his own fault if it accepted the testimony

that it was Colyer’s practice not to wear spats rather than Colyer’s testimony that Conrail

did not have spats available that day.

       Nor does the amount of the verdict “shock the conscience.” The district judge’s

statement that he “personally consider[ed the award] quite low” is far from a finding that

the award was, as a matter of law, inadequate in light of the evidence at trial. “[J]uries

are afforded broad discretion and great leeway in fixing fair and reasonable compensation

to an injured party; thus, [plaintiff] bears a heavy burden to demonstrate that the jury’s

award cannot stand.” Waldorf v. Shuta, 

, 621 (3d Cir. 1998). In light of

Colyer’s ability to return to work without limitations three months after the accident, and

given the dispute as to the extent to which his later injuries were caused by the accident,

the evidence did not compel a greater damages award.

       The district court heard the testimony along with the jury and is in a better position

than we are, after reviewing the cold record, to determine whether the evidence supported



                                             14
the jury’s verdict. We find that the district court acted well within its discretion in finding

that the verdict was supported by the evidence.

       B.     Motion for New Trial: Newly Discovered Evidence

       Colyer also sought a new trial on the basis of “newly-discovered evidence,”

namely, “Defendant declar[ing] Mr. Colyer unfit to return to work” despite its “refrain

throughout trial that Mr. Colyer was able to return to work.” He challenges the district

court’s denial of that motion.

       Although Colyer refers to “Defendant’s” finding him unfit for work, Colyer was

employed by Norfolk Southern, not Conrail, when he tried to return to work after trial. It

was Norfolk Southern, not Conrail, that sent him for a functional capacity evaluation and

found him unfit to return to work based on that evaluation. See, e.g., AR 43-44.

       The “standard for granting relief on the basis of newly discovered evidence” is

“the same” whether relief is sought under Rule 60(b)(2) or pursuant to a motion for a new

trial under Rule 59, as here. Compass Technology, Inc. v. Tseng Labs., Inc., 

, 1130 (3d Cir. 1995) (discussing relationship between Fed. R. Civ. P. 60(b)(2) and

Fed. R. Civ. P. 59). Newly discovered evidence can justify a new trial “only if such

evidence (1) is material and not merely cumulative, (2) could not have been discovered

prior to trial through the exercise of reasonable diligence, and (3) would probably have

changed the outcome of the trial.” Bohus v. Beloff, 

, 930 (3d Cir. 1991).

The party seeking a new trial “bears a heavy burden” since relief “should be granted only



                                              15
where extraordinary justifying circumstances are present.” 

the district

court’s denial of a new trial for abuse of discretion. Coregis Ins. Co. v. Baratta & Fenerty,

Ltd., 

, 309 (3d Cir. 2001).

       “Newly discovered evidence [is] evidence of facts in existence at the time of trial

of which the aggrieved party was excusably ignorant.” 

(emphasis

added). The “newly discovered evidence” here, according to Colyer, is his employer’s

decision that he was not fit to return to work. This, however, does not meet the definition

of newly discovered evidence since Colyer does not allege that his employer had made

this decision at the time of trial.3 We have long recognized that “disqualification of [a]

plaintiff for service . . . after the close of the case does not qualify as ‘newly discovered

evidence’” where the defendant “had not acted to disqualify [plaintiff] for service at the

time of the trial.” Brown v. Pennsylvania RR., 

, 526-27 (3d Cir. 1960)

(affirming denial of new trial where defendant found plaintiff “not medically qualified” to

work one month after trial based on testimony of plaintiff’s trial witnesses). As the

Second Circuit explained in analogous circumstances, “[i]f it were ground for a new trial

that facts occurring subsequent to the trial have shown that the expert witnesses made an

inaccurate prophecy of the prospective disability of the plaintiff, the litigation would



       3
              We note that Colyer has not alleged that Norfolk Southern or Conrail knew
or had reason to know, at the time of trial, what the results (or employment consequences)
of Colyer’s functional capacity evaluation would be. Nor has he alleged that either
company acted in bad faith as to testimony introduced at trial or as to finding him unfit to
return to work. This might be a very different case if he had.

                                              16
never come to an end.” Campbell v. American Foreign S.S. Corp., 

, 928 (2d

Cir. 1941) (affirming denial of new trial based on plaintiff’s ability to work after trial).

       Nor can the functional capacity evaluation -- which might be seen as evidence of

facts that existed at the time of trial, namely, Colyer’s physical condition -- be considered

“newly discovered evidence” that could justify a new trial. There is no reason that Colyer

could not have obtained equivalent evidence “prior to trial through the exercise of

reasonable diligence.” As the district court said, “this is the type of evidence that could

have been obtained prior to trial,” and which plaintiff’s “counsel should have anticipated

the need for . . . prior to trial.” AR 41.

       Under the circumstances, we cannot say that the district court abused its discretion

in denying a new trial based on Norfolk Southern’s finding Colyer unfit to return to work.

       C.      Judgment as a Matter of Law: Damages for Lost Future Earning Capacity

       A plaintiff in a FELA case may recover damages for the loss of future earning

capacity if his injuries “have narrowed the range of economic opportunities available to

him.” Gorniak v. Nat’l R.R. Passenger Corp., 

, 484 (3d Cir. 1989)

(emphasis added). Conrail sought, and the district court granted, judgment as a matter of

law on this issue. The district court held that Colyer had “not offered any evidence to

show that he would have difficulty obtaining work with other employers, that he is only

qualified for other jobs that are less lucrative than his former job with defendant or even

that his injury limits his economic potential.” AR 27. Colyer challenges that holding.



                                              17
       Our review of a decision granting judgment as a matter of law is plenary.

LePage’s Inc. v. 3M, 

, 145 (3d Cir. 2003). A motion for judgment as a

matter of law “should be granted only if, viewing the evidence in the light most favorable

to the nonmovant and giving it the advantage of every fair and reasonable inference, there

is insufficient evidence from which a jury reasonably could find liability.” Lightning

Lube, Inc. v. Witco Corp., 

, 1166 (3d Cir. 1993). Judgment as a matter of law

is appropriate only if “the record is critically deficient of that minimum quantity of

evidence from which a jury might reasonably afford relief.” Trabal v. Wells Fargo

Armored Serv. Corp., 

, 249 (3d Cir. 2001) (internal citation omitted).

       To recover for the loss of future earning potential, a plaintiff need not “prove that

in the near future he will earn less money than he would have but for his injury.”

. A plaintiff must show “that his injury has caused a diminution

in his ability to earn a living,” which may occur through a “decreased ability to weather

adverse circumstances, such as a discharge or lay-off, or to voluntarily leave the

defendant employer for other employment.” 

speculative nature of

this inquiry is not grounds for removing it from a jury. As we have explained,

       we cannot say that there [is] a significantly larger element of speculation in
       arriving at an estimate of [a plaintiff’s] loss of future earnings than there
       would be in any ordinary instance requiring an estimate of damages by a
       jury. Since none of us is capable of foreseeing the future with any
       substantial degree of certainty every estimate of damages must contain
       elements of speculation.

Wiles v. New York, Chicago & St. Louis R.R. Co., 

, 332 (3d Cir. 1960).

                                             18
This Court has long “express[ed] a preference for leaving the resolution of any

uncertainty about whether [] circumstances [affecting a plaintiff’s future earnings] will

come to pass to a properly instructed jury; a jury that may consider and weigh all the

relevant factors and determine what price to place on a narrowing of a plaintiff’s

economic horizons.” 

(citing Wiles).

       The evidence at trial as to limitations on Colyer’s future earning capacity included:

medical testimony that he had a permanent disability that limited his ability to perform

various tasks (such as kneeling, squatting, walking on uneven surfaces, or going down a

ladder); expert testimony that he could no longer work as a carman, based on an

understanding that the job required the ability to squat, crawl, kneel, crouch, stoop, and

climb on irregular surfaces and ladders; testimony that even if Colyer could perform some

carman duties, there was no guarantee that he could return to a position requiring only

such duties and, even if he obtained such a position, he might be “bumped” from it at any

time; and Colyer’s own testimony about “inquiries” he made about alternate employment

outside the railroad, including his inability to do or difficulty doing jobs for which he was

trained (such as welding, carpentry, and masonry) and his view, based on those inquiries,

that the “average job out there” that he could perform paid “about $8 an hour.” AR 346.

       Viewing this evidence in the light most favorable to Colyer, and giving him the

“advantage of every fair and reasonable inference,” Lightning 

, we

find that Colyer did submit “that minimum quantity of evidence from which a jury might



                                             19
reasonably” conclude that his injuries had decreased the economic opportunities available

to him. 

. Given our longstanding preference for allowing the jury

to “consider and weigh all the relevant factors and determine what price to place on a

narrowing of a plaintiff’s economic horizons,” 

, we conclude

that the district court erred in withdrawing this question from the jury. The evidence here

is comparable to that found to require sending this issue to the jury, or to support a jury

verdict, in prior cases.

       The district court held that Colyer had submitted sufficient evidence for a jury to

conclude that he has a permanent disability that would prevent him from working in his

former position but not that he “would have difficulty obtaining an equally lucrative job

with employers other than defendant.” AR 26. However, this Court has never required a

plaintiff to provide detailed evidence as to the likelihood of finding other jobs at a similar

salary level. Past decisions instead reflect faith in the jury’s ability to weigh various

factors affecting a potential loss of future earning capacity when a plaintiff shows that his

injuries have foreclosed some potential employment opportunities.

       For example, this Court reversed a decision granting defendant a directed verdict

as to the loss of future earning capacity despite the district court’s holding that there was

“no evidence regarding what, if any, positions [in plaintiff’s field] were available to

him[,] his prospect of attaining such a position[, or] what salary he would receive.”

Wilburn v. Maritrans GP, 

, 361 (3d Cir. 1998) (emphasis added). Wilburn



                                              20
introduced evidence that his accident at sea left him with permanent injuries that

restricted his activities, although he could still perform his former job by compensating

for those injuries. 

He also introduced expert psychiatric testimony that the

trauma of his accident at sea left him fearful of jobs that would require him to be out of

sight of land (or “coastwise”) in bad weather. Wilburn testified that he had withdrawn an

application for a promotion when he was told he might be required to go coastwise and

would not get the job if he remained unwilling to do so. We found this sufficient to allow

a jury to find “a narrowing of Wilburn’s economic opportunities” and “a sufficient basis

upon which ... to compensate [him] for loss of future earning capacity.” 

not

require plaintiff to demonstrate “what, if any, positions ... were available to him[,] his

prospect of attaining such a position[, or] what salary he would receive.” 

       In Gorniak, we upheld an award of damages for lost earning capacity even though

plaintiff was earning more than he had before his accident, and even though plaintiff

conceded that, in light of his high seniority, there was only a “small” probability he would

be bumped from his light-duty, high-paying position, and that, even if he were bumped,

“most of the positions” to which he might be bumped were also light-duty positions that

he could hold. 

Nonetheless, expert testimony that plaintiff’s physical

restrictions “would preclude him from working” in certain positions in his union

(including his previous position) “and in many positions in the [outside] industrial

workforce,” was enough for the jury to find plaintiff’s “future earning capacity was



                                             21
significantly diminished,” despite the apparently uncontroverted fact that plaintiff was

“fully able to obtain employment of a less strenuous nature.” 

We found it

enough for Gorniak to show his “injuries hindered his ability to obtain other employment

if he wished,” and did not require evidence as to the types of job Gorniak was likely to

obtain, the availability and prevalence of such jobs in the local economy, or the wages

such jobs would pay. 

       In an earlier case, we reversed a district court decision setting aside jury-awarded

damages for loss of future earning power as “too speculative [due to] the complete

absence of evidentiary facts on which the jury could intelligently assess the monetary

difference between” plaintiff’s expected future earnings with or without his injury. Wiles

v. New York, Chicago & St. Louis R.R., 

, 332 (3d Cir. 1960). Wiles, too,

was employed at the time of trial at a higher salary than he was earning when injured. A

medical expert testified that although Wiles’ disability was minor and would not preclude

his performing even heavy industrial tasks, he “would have difficulty in getting a job in

heavy industry elsewhere than with the Railroad” because “substantial ... scars” on his

back might make an employer leery. 

We held that although Wiles had “not




       4
              Our only reference to such issues in Gorniak came in rejecting the
employer’s claim that Gorniak’s “work as a security guard on the side” showed his work
opportunities were not narrowed. 

n.1. We cited Gorniak’s testimony that his
“hourly pay as a security guard was about half of that” at his regular job to refute the
employer’s claim, but made no suggestion that this represented what Gorniak could
expect to make if he lost his position.

                                            22
yet suffered economic loss,” the chance that he might be “discharged or ... laid off” and

be unable to find other employment showed that his “economic horizons have been

limited by his injury.” 

Here, too, we found it sufficient that Wiles showed

there were some jobs he might be unable to obtain (although he could perform them). We

did not require any evidence as to the types of job that he could hold, the availability and

prevalence of such jobs in the local economy, or the wages such jobs would pay. Far

from it -- we reversed the district court’s holding that the verdict was “too speculative”

due to the “complete absence” of evidence as to the “monetary difference” the injury

made to Wiles’s future earnings.

       Nonetheless, the district court here granted Conrail’s motion for a directed verdict.

Citing Gorniak, Wiles, and Wilburn, the court held that plaintiffs must satisfy two

requirements in order to get to a jury as to this issue: “1) evidence of a permanent injury

or deformity, and 2) evidence that the injury/deformity either forced plaintiff to take a job

that paid less ... or ... evidence that the injury would make it much harder for plaintiff to

find another job.” AR 24. The district court found that Colyer had submitted sufficient

evidence on the first of these two prongs but not the second. It held that plaintiff needed

to “show that his disability would make it more difficult for him to find a job that pays as

much as his former carman position with defendant,” and had not done so. AR 25. The

court identified only two ways to make this showing: through expert testimony, as in

Wiles and Gorniak, or by testifying that he had “applied for other positions and [been]



                                              23
told by the employers that he would never get the positions because of his disability,” as

in Wilburn. AR 25-26. The district court found that Colyer’s evidence would support

only a finding that he “cannot work in his former position, and the Third Circuit has never

held that this is sufficient.” AR 26.

       The district court’s view that the evidence could show at most that Colyer’s injury

prevented him from performing his specific prior job, as opposed to a variety of positions

that required similar physical activities, is somewhat puzzling. First, Colyer’s medical

expert and treating physician both described physical limitations on his ability to perform

various tasks -- such as squatting, crawling, kneeling, climbing -- that are necessary not

only for the position of carman but also for numerous other physically demanding jobs.

Second, Colyer himself testified not only about how his physical limitations affected his

former job, but also that it was “kind of hard” for him to do “carpentry [or] masonry

work” and that he couldn’t do any “welding job” -- indeed, that he had withdrawn an

application for a job when he found it required welding. AR 346. He also testified that,

based on his “inquiries” about alternate employment, he thought other jobs that might be

available to him paid only $8 -$9 per hour. 

district court dismissed this

testimony as “vague,” the jury was entitled to consider its specificity (and the defendant’s

ability or inability to refute it) in weighing it and determining whether to accept it.

       Given our preference for allowing juries to address this decision, and the type of

evidence that we have previously found to require sending this issue to the jury, we hold



                                              24
that Colyer submitted sufficient evidence to send this issue to the jury. None of our cases

have required a plaintiff to prove that the jobs that would be available to him would pay

less than his prior position or than other jobs that he would be unable to perform due to

his disability. In each case, we found evidence that a plaintiff was foreclosed from

certain categories or types of jobs enough to show that his “economic prospects have been

narrowed,” 

(emphasis supplied), and trusted the jury to assess

the various factors and determine how to value that narrowing of prospects.

       The district court cited acknowledged dicta in Fashauer v. New Jersey Transit Rail

Operations, Inc., 

(3d Cir. 1995) to support his view that Colyer’s evidence

was insufficient. In Fashauer, this Court held a jury instruction as to loss of future

earning capacity adequate, but noted that the plaintiff had submitted “no competen[t]

evidence supporting [such a] claim.” 

We pointed to the complete absence of

any “testimony that [plaintiff] would have difficulty obtaining work with a different

employer, or that jobs he could do after the injury were less lucrative than his railroad

job.” 

We also emphasized that “no witness even opined that Fashauer’s

injury limited his economic potential” and that “he essentially wanted the jury to take his

counsel’s word for it.” 

This case is distinguishable from Fashauer.

There was evidence here -- in the form of Colyer’s own testimony -- that he would have

difficulty finding other work, and that the jobs he would be likely to find are less

lucrative. The expert medical testimony as to the physical limitations Colyer suffered are



                                             25
consistent with his testimony. The district court analysis seems to suggest that Colyer

could make the necessary showing only by presenting the precise evidence relied on in

Gorniak, Wiles, or Wilburn, but there is no basis for such a restriction. Indeed, the

Fashauer court explicitly rejected an “argument that evidence supporting lost earnings

capacity must come from a vocational 

(emphasis added).

                                             III

       For the reasons explained above, we affirm the district court as to its denial of

Colyer’s request for a new trial based on newly discovered evidence and its denial of his

claim that the jury verdict was against the weight of the evidence and the law. We

reverse the district court’s grant of Conrail’s motion for judgment as a matter of law as to

damages for lost future earning capacity and remand for a new trial on that issue.




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