Question for our board's lawyers

[LightinDarkness]

As some of you may recall, I do some part time work as an arbitrator. I'm not a lawyer, I've only had a few law school classes (as electives in graduate school). I have a unusual case that I thought some of our resident lawyers might be able to shed some light on.

Lets say someone sues their employer under the Federal Employers Liability Act:
http://en.wikipedia.org/wiki/Federal_Em ... bility_Act

This person wins.

Does the law mandate that awards under this law provide compensation based on both present and (expected) future disability? Or does the law allow that someone could make a claim under this and only be awarded for current disability? Ive read the law and cant really find anything, but the case law is rather massive...I have a case that hinges on this question.

I really wish if people were going to give me these kind of cases they'd pay to provide a paralegal or something to read through 23984239824398423984389 pages of case law. Technically I could charge them for the days it would take to wade through all of it, but then theyd have a $30k bill and word would get around that I'm obscenely expensive and no one else would hire me.

[Kestrel]

I'm no lawyer either, but it would seem that one shouldn't be able to collect based on damages that are speculative, hypothetical, or unliquidated.

Expected future disability has a speculative factor. A lot would depend on how speculative, and how likely it would be for the condition to deteriorate into real disability if untreated.

[wserra]

Does the law mandate that awards under this law provide compensation based on both present and (expected) future disability?

Generally speaking, yes. "A FELA plaintiff is entitled to recover for all past, present and probable future harm attributable to the defendant's tortious conduct, including pain and suffering and mental anguish." Marchica v. Long Island R. Co., 31 F.3d 1197, 1207 (2nd Cir. 1994). Needless to say, plaintiff must prove future damages by the same standard as past damages, in general a preponderance of the evidence.

Do you need an invoice to add my $30K to your bill?

[LightinDarkness]

Yeah, it seems strange to award based on future damages because its hard to calculate but from what I can recall from my law school classes its very normal (although the process they go through in trying to value someone's "future worth" always seemed odd to me).

In this case the person won through FELA and was awarded a sum of money, and now wants to return to work. The organizations involved are arguing over whether the fact that he won in his FELA suit means he cannot return to work because the FELA suit considers future disability when it makes an award.

Ive read the 1,600 page transcript (!) and no where do people use terms like "current disability" or "future disability". Questions about the disability are always things like, "do you think you can work with your disability?" They don't qualify it with a time frame.

Thanks wserra, that is helpful, although do you think with the language it is stating claims made _can_ include future disability instead of claims made _will_ include future disability? I'd be happy to invoice my clients for your time, but I have a feeling you get paid hundreds of dollars per hour and that could get expensive

[JamesVincent]

Not a lawyer but I believe that the future disability is based on the inability to do the current job. Unless otherwise stated in the settlement there is no reason that they can't return to work in a different capacity. If you were a framer and lost an arm you couldn't do that job anymore and have a subsequent loss of income potential. No reason you couldn't then became a greeter at wally mart.

[Kestrel]

If you were a framer and lost an arm you couldn't do that job anymore and have a subsequent loss of income potential. No reason you couldn't then became a greeter at wally mart.

Or become a lawyer.

[ArthurWankspittle]

Not a lawyer but I believe that the future disability is based on the inability to do the current job. Unless otherwise stated in the settlement there is no reason that they can't return to work in a different capacity. If you were a framer and lost an arm you couldn't do that job anymore and have a subsequent loss of income potential. No reason you couldn't then became a greeter at wally mart.

Wouldn't damages be assessed as at the point of the loss or the time of the court hearing? There is no right to return to court in 5 years time and say there's been a period of hyper-inflation so the claimant needs more money. Equally, in the case of the framer cited as an example, if medical technology advances rapidly in the next five years and the hypothetical framer gets a robotic arm capable of 95% of a fully functioning human arm, the insurer or whoever paid out can't go back and demand a refund.

[wserra]

Yeah, it seems strange to award based on future damages because its hard to calculate but from what I can recall from my law school classes its very normal

It is indeed. Routine, in fact.

do you think with the language it is stating claims made _can_ include future disability instead of claims made _will_ include future disability?

Caveat: I've never had a FELA case, although I've had many FTCA (Federal Tort Claims Act) cases. But the universal rule is that, if the trier of fact decides that the proof supports future damages, they are awarded. That's how I read the Marchica Court's language: "A FELA plaintiff is entitled to recover . . ."