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Evidence of future benefits from a third party cannot be admitted to reduce an employer’s liability to an employee under the collateral source rule, the Pennsylvania Superior Court has ruled. The decision in Griesser v. National Railroad Passenger Corp. represents the first time a Pennsylvania state court has decided how evidence of benefits not related to an injury is affected by the rule in cases involving the Federal Employer’s Liability Act. Most courts follow the collateral source rule’s dictum barring evidence of compensation received as a result of an injury, such as from an insurer. However, the benefits at issue in plaintiff Joseph Griesser’s case were from his pension, a future source of benefits not related to his injury. The three-judge Superior Court panel, led by Judge Maureen Lally-Green, came out on Griesser’s side, saying that such evidence had the potential to do more harm than good. “We conclude that evidence of [Griesser's] future retirement benefits was inadmissible to show that [Griesser] had an economic incentive to retire before age 65, because of the danger that the jury would use this evidence for the improper purpose of mitigating [Griesser's] damages or reducing [the defendant's] liability,” Lally-Green said. “In this way, we adhere to the underlying purpose of the collateral source rule in light of the strong policy against the admission of collateral benefits in FELA cases.” The court vacated the Philadelphia Common Pleas Court’s decision and remanded for a new trial. Griesser suffered a work injury when he fell backward onto the deck of a flatbed truck. He filed an action under FELA against his employer, National Railroad Passenger Corp., or Amtrak. A jury found Amtrak 50 negligent and Griesser 50 percent negligent. The jury also found that Griesser suffered $419,500 in damages. The trial court entered an award in his favor for $209,750 to reflect his 50 percent responsibility. Griesser appealed, arguing the trial court allowed National Railroad to “repeatedly inject collateral source evidence into the proceedings,” despite his objections. Namely, Griesser said evidence that he could retire with full benefits at the age of 60 violated the collateral source rule. Griesser, who was 45 at the time of trial, presented expert testimony on his lost future earning capacity. The expert’s calculations were based on an expected retirement age of 60 or 70, Lally-Green said. The expert was asked during cross-examination whether he was aware that railroad employees with at least 30 years of experience were entitled to full retirement benefits at the age of 60. Griesser’s attorney objected under the collateral source rule, but the trial judge overruled the objection. In the Superior Court opinion, Lally-Green explained the interaction between FELA — the federal statute used to handle railroad workers’ injury claims — and the collateral source rule. FELA requires an employee to win against an employer in a negligence action in order to recover. The collateral source rule holds that payments from a third party, such as an insurer, should not diminish recoverable damages. Lally-Green said most collateral source rule cases have been influenced by the U.S. Supreme Court’s 1963 decision Eichel v. New York Cent. R. Co. The justices held that the plaintiff’s disability pension benefits could not be used to offset the employer’s damages because the possibility for a jury’s misuse of such information was very high. The straightforward rule created by Eichel is that “a defendant may not introduce evidence that a plaintiff has received compensation on account of his injury from a source other than the defendant.” But, Lally-Green said, Griesser’s case presented a less obvious relationship between an injury and benefits than most because the benefits at issue were future rather than current. In fact, she said, the benefits were not related to injury at all. Griesser argued he was entitled to lost wages until the usual age of retirement, 65 or 70, because he is permanently disabled. That argument implied he would have worked until 65 or 70 if he had not been injured, Lally-Green said. But Amtrak said Griesser would most likely not have worked until that age because he had an incentive to retire at age 60, since the company allowed pension benefits equivalent to a full salary at that age. Lally-Green said although Griesser’s case was the first in Pennsylvania to discuss whether evidence of benefits not related to the injury is admissible under the collateral source rule, other states have discussed the issue and decided in the affirmative. The Superior Court decided to follow the lead of a 1995 Eastern District of Pennsylvania case, Lee v. Consolidated Rail Corp., in which the plaintiff was injured during the course of his employment with Conrail. Conrail tried to introduce evidence that the plaintiff would have been entitled to retire with full benefits at age 62, arguing it was relevant to show the plaintiff would have had an incentive to retire early even if he weren’t injured. The Lee court sided with the plaintiff on the basis of Eichel. The court said “evidence of collateral source benefits ‘must be categorically excluded,’” Lally-Green said. The Griesser court agreed. “We understand that future retirement benefits are not triggered by the injury; rather, they would have been awarded even if [Griesser] had not been injured,” Lally-Green said. “Moreover, future retirement benefits do not improperly suggest that the plaintiff is currently being compensated for his injury from another source. In this respect, the evidence at issue is not ‘classic’ collateral source evidence.” “On the other hand, there remains a significant danger that a jury will misuse and misinterpret evidence of early retirement benefits.”

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