Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court for the County of Los Angeles. Robert A. Dukes, Judge.
Randolph Cregger & Chalfant and Joseph P. Mascovich; Union Pacific Railroad Company Law Department, Adrian L. Randolph and William H. Pohle, Jr., for Defendant and Appellant.
The Crow Law Firm, Donald S. Britt, John D. Gilbert and Janet Manrique for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
SUMMARY
Eric Doi, an employee of the appellant Union Pacific Railroad Company, sued Union Pacific under the Federal Employers’ Liability Act (FELA) after he suffered life-altering injuries (quadriplegia) in a rollover accident that occurred when Robert Torres, a fellow-employee, lost control of the company-owned truck he was driving. Respondent Doi and Torres were members of one of Union Pacific’s “zone gangs,” which traveled on an as needed basis to and worked at various locations in several states. The accident occurred in July, 2007, on a travel day, after Torres had picked up Doi at the Tucson airport and while they were en route to their hotel after stopping at a store to purchase food and “Pedialyte” (a liquid containing electrolytes) which they would eat and drink during the following work day in the Arizona desert.
The principal question is whether Doi and Torres were acting within the scope of their employment when the accident occurred. A jury decided they were and awarded Doi damages of $48,493,120, a sum that included $35.7 million in noneconomic damages for past and future physical pain and mental suffering. Union Pacific appeals, contending Doi and Torres were not acting within the scope of their employment as a matter of law. Alternatively, the company claims a new trial is necessary because of instructional error and an excessive award of noneconomic damages. Finally, Union Pacific contends that the judgment should be modified to provide that postjudgment interest accrues at the federal rate rather than the rate provided by state law. We affirm the judgment in all respects.
FACTUAL AND PROCEDURAL BACKGROUND
Doi was an assistant signalman on one of Union Pacific’s regional construction gangs. These “zone gangs” work at locations within a broad geographic area. In Doi’s case, the area encompassed parts of California, Texas, New Mexico and Arizona. Zone gangs typically work for eight consecutive days and then have six days off (at least one of which is a travel day). Doi and Torres were crew members of the same zone gang.
Union Pacific pays zone gang members $9.00 for every 25 miles they travel between their homes and a designated hotel near the work site. This amount was paid to each zone gang member regardless of the method each chose to travel. Some traveled by air and some by car, either alone or in carpools. The company also pays for their lodging during the work cycle and also pays them $15 per day for incidentals and $29.99 per day for meals for each day they work.
The foreman of Doi’s zone gang was Robert Ybarra, who managed the day-to-day affairs of the crew. Ybarra and other gang foremen were supervised by Daniel Castillo, a signal department supervisor. Castillo’s supervisor was Rudy Burden, a signal manager. Burden told his employees that they were subject to Union Pacific’s general code of operating rules (referred to by the parties as the GCOR) at all times while they were in Tucson or other work locations. He also told them they could be called to work at any time. They were usually required to stay within 30 minutes of the hotel in the event Union Pacific called them to work. Union Pacific’s operating rules required employees to be well-rested when they report to work, and the company considered employees who were not well-rested to be safety risks to themselves and others.
Doi’s zone gang was assigned four trucks. Every member of the gang had keys to all of the trucks, and employees were authorized to use the trucks to get supplies they needed for work, including food and beverages. It was also common for the employees to use company trucks (which remained at the hotel at the end of the eight-day work cycle) to pick up coworkers at the airport. (After Doi’s accident, Union Pacific changed its policy to prohibit employees from using the trucks to go to the airport, but continued to allow employees to use the trucks to obtain supplies (“to do things like go to Wal-Mart”). Once the zone gang reached the work site on a work day, they could not use the trucks to leave the work site to obtain food or electrolyte replacement drinks, so they had to ensure that they had brought with them all supplies they needed.
The zone gang’s practice was that the junior man in the gang – Torres – was responsible for fueling and inspecting the trucks the day before the gang was to start work, even though he was not paid to do so. Doi had been the junior man prior to Torres and had performed inspections and fueling on travel days.
Doi’s zone gang commonly worked in temperatures of more than 110 degrees. The workdays were a minimum of 10 and up to 16 hours long. In July 2007, Doi’s gang was burying cable near Tucson, using a “trencher” when possible but also digging with picks and shovels and doing other manual labor. Union Pacific provided bottled water for the gang, but did not provide food or any form of electrolyte replacement liquids (and did not permit the men to leave the site to obtain these items).
In early July, Doi’s gang was ordered to return to work ahead of schedule, on a rest day, because of a special job known as a “cutover.” The crew members were told they would take part in a 6:00 a.m. briefing on July 8, 2007, at Wilcox, Arizona, and would assemble between 4:30 and 5:00 a.m. at their hotel and drive to Wilcox in company trucks. Ybarra told the men to be well-rested and to have everything they needed for the day because of the early departure.
On July 7, 2007, the day of the accident, Torres drove his motorcycle to the hotel from his nearby home. He checked in at the hotel and inspected the trucks. (Union Pacific’s records showed that three of the four trucks were not fueled that day.) He then used one of Union Pacific’s trucks to pick up Doi at the airport. From the airport, the two men drove to a Wal-Mart store, where they purchased food and Pedialyte.
Torres was speeding during the drive from the Wal-Mart store to the hotel. He lost control of the truck; the truck left the pavement, swerved, and rolled over. Torres sustained minor injuries, but Doi suffered a severe cervical spine injury causing quadriplegia.
When Doi’s father came to the Tucson hospital to which Doi was taken after the accident, he had a conversation with Todd Walters, a Union Pacific claims representative. Walters told Mr. Doi that Union Pacific would “take care of” everything.
At his deposition, Walters was asked, “Did you give them assurances that everything would be taken care of by the railroad?” Walters answered, “I told them we would take care of them, yes.” He was then asked, “And you had authority to do that, didn’t you?” and responded, “Yes, I did.”
A few days after the accident, Torres completed an accident report stating he was injured while on duty and indicating that he “went to Wal-Mart to buy Pedialyte for work.” The report was reviewed and signed by foreman Ybarra and was also reviewed by Ybarra’s supervisor, Castillo. When the report was sent to Burden (Castillo’s supervisor), Burden ordered Torres to prepare a new report stating that the accident had occurred “off-duty.” Although he did not agree with the change, Torres prepared a new report because he had received an order and “…I didn’t want to lose my job.” He said that Burden and Todd Walters had threatened him with termination.
Doi filed a negligence complaint against Union Pacific under the FELA. Under that statute, a railroad engaged in interstate commerce is liable to a person injured while employed by the railroad if the injury is a result of the railroad’s negligence. (45 U.S.C. § 51.) Doi’s case was granted trial preference, and the trial occurred in October 2008.
In addition to the facts already recited, evidence was adduced relating to whether Doi and Torres were acting within the scope of their employment when the accident occurred; the nature of Doi’s physical and psychological injuries; and Doi’s economic damages. On the scope of employment issue:
Doi claimed the zone gangs were “paid to travel” and contrasted their payments ($9 for every 25 miles) with the fact that other types of signal gangs do not receive such payments. Thus “headquarters” gangs, who report to the same location every day, and “division mobile” gangs, who report to jobs within a smaller geographic area, do not receive similar payments. Doi also showed that train crews are paid wages while “deadheading” (being transported to a work location by train or other company-provided transportation).
Doi established that in some areas in California, Union Pacific provides Gatorade, or an electrolyte replacement product called Sqwincher, when the temperature is expected to reach 100 degrees.
Doi presented evidence from Dr. Michael Blumenkrantz, a physician board-certified in internal medicine, nephrology (kidney disease and high blood pressure) and clinical nutrition. Blumenkrantz explained the need to maintain certain levels of electrolytes (including sodium and potassium) in the blood, that dehydration occurs if sodium and potassium levels become too low, that people lose fluid and electrolytes when they perspire, that electrolyte replacement is an important factor in preventing heat-related problems, that heat exhaustion occurs when heat stress becomes severe and if continued can lead to heat stroke (a life threatening emergency), and that drinking water alone does not resolve dehydration or electrolyte imbalance and dilutes the electrolytes that have been depleted in the blood, leaving a person at risk for dehydration and heat stress.
Evidence was presented that Union Pacific benefited from the creation of zone gangs, achieving efficiencies because it could send crews to work sites within a broad geographic area without having to reconstitute gangs under union seniority rules.
The evidence showed the injury to Doi’s spine resulted in quadriplegia and that the condition is permanent. Doi has no feeling below his nipples and no control over his bladder and bowels. He has limited sensation in, and limited use of, his upper arms, neck and biceps. He has sexual dysfunction. He has problems with pressure sores. He has no control over his vascular system or blood pressure, the consequences of which range from swelling in the feet and legs to the risk of stroke through dysreflexia (an abnormal blood pressure response to various stimuli, causing Doi severe headaches from the unregulated increase in blood pressure, which continues to rise until the stimulus is resolved or medication is administered). Some episodes have required hospitalization. He has suffered numerous infections related to his bladder. His prognosis includes hospitalization five days per year for the rest of his life because of infections. He suffers from an abnormal bone growth in his hip that prevents certain movements and increases the probability of sores; he will require surgery after the bone matures. He will have surgery to increase the function in his upper arms and he will require colorectal surgery.
Doi requires nursing care 24 hours per day. He needs to be maneuvered every 15 to 30 minutes to minimize the risks of pressure sores. His morning routine, from awakening until he is able to eat breakfast, takes two and one half hours and includes a bowel program for removal of his stool and a bladder program requiring catheterization through his penis to drain urine. (The jury watched a video of Doi’s daily routine.) He suffers from depression and has been diagnosed as having post-traumatic stress disorder. He suffers from several other conditions secondary to quadriplegia. His life expectancy has been shortened by 29 percent, from 47 years to 33.2 years. At the time of the accident, Doi was active in numerous sports and outdoor activities and was about to marry and start a family. He now has thoughts of suicide on a consistent basis and difficulty seeing anything meaningful in his future.
Both sides presented testimony from economists on Doi’s wage loss damages, with Doi’s expert finding past and future wage and benefit losses at $2,134,263 and Union Pacific’s expert claiming that figure should be reduced by $542,157. Both sides also presented testimony from life care planners on costs for Doi’s future medical needs, which varied based on the life expectancy used, bladder management measures utilized, qualifications of personnel providing nursing assistance, and other factors. Doi’s evidence showed future medical costs ranging from $8.2 million to $15,980,000; Union Pacific’s scenarios were all in the $5 million range.
In a special verdict, the jury found that Doi was acting within the scope of his employment (12-0); Torres was acting within the scope of his employment (10-2); Union Pacific was negligent (12-0); Doi was harmed (12-0); and Union Pacific’s negligence was a cause of Doi’s harm (11-1). The jury found Doi’s damages were $61,872 for past lost earnings, $1,863,185 for future loss of earnings, $798,000 for past medical and rehabilitation-related expenses, $10,070,063 for future medical and rehabilitation-related expenses, $2,500,000 for past physical pain and mental suffering, and $33,200,000 for future physical pain and mental suffering.
Union Pacific moved for judgment notwithstanding the verdict and for a new trial. The trial court denied both motions. As to the claim that damages were excessive, the court observed that Union Pacific had submitted verdicts from other cases in which a jury had awarded substantially lesser amounts for similar injuries, but stated it was “not convinced that the jury clearly should have reached a different verdict or decision in this case.” The damages, the court said, were supported by the evidence, and “[a] 33.2 million verdict for a quadriplegic – which is approximately $1 million per year of [Doi’s] reduced life expectancy – does not ‘shock the sense of justice’ in light of [Doi’s] age, life expectancy, severity of injuries, and suffering in this circumstance.”
Union Pacific filed a timely appeal, and we granted Doi’s motion for calendar preference.
DISCUSSION
Union Pacific asserts that the jury’s findings that Doi and Torres were within the scope of their employment are unsupported by substantial evidence, that it is entitled to a new trial because of instructional and evidentiary error, that a new trial or remittitur is required on noneconomic damages, and that the court applied the wrong postjudgment interest rate. We address, and reject, each claim in turn.
1. Substantial evidence supports the jury’s findings that Doi and Torres were acting within the scope of their employment.
The FELA provides a compensation scheme for railroad workplace injuries, preempting state tort remedies. (Norfolk Southern Ry. v. Sorrell (2007) 549 U.S. 158, 165 (Norfolk Southern).) It provides that a common carrier by railroad is liable to a person “suffering injury while he is employed by [the railroad]” if the injury results from the negligence of an employee of the railroad. (45 U.S.C. § 51.) The statute provides for concurrent state and federal jurisdiction, but “substantively FELA actions are governed by federal law.” (Norfolk Southern, supra, 549 U.S. at p. 165.) Absent express statutory language to the contrary, “the elements of a FELA claim are determined by reference to the common law.” (Id. at pp. 165-166.) The FELA is a remedial statute and its remedies were intended to be broad, “indeed broader than those available under principles of common-law negligence ….” (Goldwater v. Metro-North Commuter Railroad (2d Cir. 1996) 101 F.3d 296, 298 (Goldwater).)
A railroad’s liability is limited to injuries occurring while the employee was acting within the scope of his or her employment. (Goldwater, supra, 101 F.3d at p. 298.) In applying common law principles to the analogous agency question of when an employment relationship exists, “the Supreme Court has often looked in particular to the Restatement (Second) of Agency … as ‘a guideline for analysis and proper jury instructions.’” (Wilson v. Chicago, Milwaukee, St. Paul, & Pac. R. (7th Cir. 1988) 841 F.2d 1347, 1352.) Under section 229 of the Restatement, “[t]o be within the scope of the employment, conduct must be of the same general nature as that authorized, or incidental to the conduct authorized.” (Rest. 2d Agency, § 229; see Atchison, T. & S.F.R. Co. v. Wottle (10th Cir. 1952) 193 F.2d 628, 630 (Wottle) [the FELA “extends to and covers not only the actual work performed …, but those acts which can be said to be necessarily incident thereto”].) The Restatement lists some ten “matters of fact” to be considered in determining whether an employee’s conduct is within the scope of employment, including such matters as whether the employee is compensated for the act or conduct; the time, place and purpose of the act or conduct; the extent to which the employer’s business is benefitted by the act or whether it primarily benefited the employee personally; and so on.
The trial court’s instruction to the jury was based on section 229 of the Restatement. The jury was first instructed, consistent with CACI 3720, that conduct is within the scope of employment if (a) it is reasonably related to the kinds of tasks the employee was employed to perform, or (b) it is reasonably foreseeable in light of the employer’s business or the employee’s responsibilities. The jury was further instructed that, in general, an employee is not acting within the scope of employment while traveling to and from the workplace, and that, in determining whether this general rule applied, the jury could consider the following:
Whether an employee acts within the scope of employment is normally a question to be resolved by the jury from all the surrounding circumstances. (Gallose v. Long Island R. Co. (2d Cir. 1989) 878 F.2d 80, 84 (Gallose).) “This is especially true in negligence actions brought under the FELA, where ‘the role of the jury is significantly greater … than in common law negligence actions’, and where the jury’s right to pass upon the question of the employer’s liability ‘must be most liberally viewed.’” (Ibid.) “Indeed, ‘“trial by jury is part of the remedy.”’” (Goldwater, supra, 101 F.3d at p. 298.) The scope of employment issue may be taken from the jury “only when it is clear that ‘reasonable men could not reach differing conclusions’.” (Gallose, at p. 84, quoting Baker v. Texas & Pacific Railway Co. (1959) 359 U.S. 227, 228.)
There is a “commuter rule” exception to FELA liability so that, “‘generally speaking, [employment] does not include either going to or coming away from the place where the job is carried on.’” (Goldwater, supra, 101 F.3d at p. 298.) But “[w]hether that general principle is applicable in a given case … will depend on the facts of the case.” (Id. at pp. 299, 300 [“consistent with … the ‘significantly greater’ role of the jury in FELA cases … we have in several cases held it inappropriate for the court to decide that the commuter-rule barred the plaintiff’s claim as a matter of law”; in those cases the trial court “could not properly rule as a matter of law that the employees in question, injured outside of their shift hours while engaging in their normal commutes to or from their normal worksites, were not injured within the scope of their employment”].)
Against this legal background, Union Pacific insists that the evidence adduced in this case requires a judgment in its favor as a matter of law. The essence of Union Pacific’s argument seems to be that zone gang members made “personal choices” on when and how to travel to the hotel in Tucson and on their purchase of food and beverages to consume during the work period, and were therefore not within the scope of their employment at the time of the accident. It is true, of course, that “no liability attaches when an employee acts ‘entirely upon his own impulse, for his own amusement, and for no purpose of or benefit to the defendant employer.’” (Gallose, supra, 878 F.2d at p. 83; see also Wottle, supra, 193 F.2d at p. 630 [FELA “obviously does not cover activities undertaken by an employee for a private purpose and having no causal relationship with his employment”].) But this is not such a case. The evidence permitted a reasonable jury to conclude that the conduct in question – the trip to the Wal-Mart store to purchase food and Pedialyte for the following work day – was a necessary incident to the next day’s work, particularly in light of Union Pacific’s duty to provide its employees with a safe place to work and the other surrounding circumstances, including that zone gang members could not leave the work site to obtain provisions. (Cf. Gallose, supra, 878 F.2d at pp. 83-84 [a jury reasonably could have reached different conclusions on the scope of employment issue where an employee concerned about her physical safety brought a dog (which attacked another employee) to work; evidence “would allow a jury reasonably to conclude that [the employee] brought her dog to work in a direct attempt to improve her working conditions and to better perform the tasks assigned her,” as the dog “afforded her physical protection from what she believed to be a real hazard in the workplace”].)
The jury was instructed that Union Pacific “has a non-delegable duty to provide its employees with a safe place to work. ‘Non-Delegable’ means that Union Pacific cannot assign or transfer its responsibility to provide a safe place to work to another business, entity, person or employee.”
We briefly address several of the assertions Union Pacific makes in support of its claim it was entitled to judgment as a matter of law:
Union Pacific asserts that the commuter rule “confirms that railroad employees are not within the scope of their employment when they are traveling between their homes and work.” While this is indeed the general rule and the jury was so instructed, Union Pacific ignores the admonition stated in Goldwater: application of the rule vel non depends on the facts. (Goldwater, supra, 101 F.3d at pp. 298-300; cf. Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 962 (Hinman) [“cases indicate that exceptions will be made to the ‘going and coming’ rule where the trip involves an incidental benefit to the employer, not common to commute trips by ordinary members of the work force”; “cases also indicate that the fact that the employee receives personal benefits is not determinative when there is also a benefit to the employer”].)
Union Pacific asserts that the purchase of Pedialyte “fails to support the judgment,” pointing out that in some cases courts have concluded that an employee’s off-duty purchase of food was “wholly unconnected and unrelated” to his employment. Again, the question whether the purchase of food or beverages is within the scope of employment or “wholly unconnected and unrelated” depends on the circumstances. Doi presented evidence that the hot desert working conditions made consumption of Pedialyte or similar beverages a necessity and that employees had to purchase food and beverages before work began because they were not permitted to leave the work site during the day. Union Pacific implies that Doi’s evidence should be ignored because juries should not be allowed “to make distinctions about the real or perceived necessity for these purchases” because this “would invite standardless, arbitrary decisions that the law should not tolerate.” Union Pacific offers no authority supporting this contention, and we know of none; it is the essence of the jury’s function to make such distinctions.
Union Pacific cites Garcia v. Atchison, Topeka & Santa Fe Ry. Co. (1959) 66 N.M. 339, an FELA case where the employee was injured on a day off, during a trip from the railroad’s camp into a nearby town to eat lunch and dinner and purchase writing paper. The court found the employee was on a mission “wholly unconnected and unrelated to [his] employment.” (Id. at pp. 343, 340-341 [stating that the employee was not covered by the FELA “if his acts at the time of the injury were not necessarily incident to or an integral part of his employment but rather were undertaken for a private purpose having no causal relationship with his employment”].) Union Pacific also relies on Wottle, supra, 193 F.2d at p. 631 [“[w]hen … after his day’s work, [the employee] set out in his own car to obtain groceries for himself, he was on a mission wholly unconnected and unrelated to his employment” and his injury while doing so was not covered by the FELA]; see also Sunderland v. Lockheed Martin Aeronautical Systems Support Co. (2005) 130 Cal.App.4th 1, 11, 12 [“[i]f an employee’s act is purely personal, it is not ‘typical of or broadly incidental to the employer’s enterprise’”; the purpose of the employee’s trip to a fast-food restaurant after he left work “was a purely private and personal activity,” and he “was neither ‘“engaged in the duties which he was employed to perform,”’ nor did his acts incidentally or indirectly contribute to the employer’s service”]. None of these cases stands for the proposition that the purchase of food or beverages while off duty is “purely private and personal” no matter what the surrounding circumstances may be.
Union Pacific claims that Torres’s use of a Union Pacific truck “is inconsequential” because Union Pacific “neither controlled [zone gang members’] actions nor significantly benefited from them.” According to Union Pacific, the use it permitted of its vehicles “was an accommodation of the employees’ personal needs, not a use related to their duties as signalmen.” Again, that was for the jury to decide.
Union Pacific points out that the payment zone gang members received for travel does not reflect “either time spent traveling or their rate of pay,” and that some non-FELA cases have held an employee was not within the scope of his employment even though he was paid a per diem travel allowance. But the cases on which Union Pacific relies stand only for the proposition that payment of a per diem travel allowance, standing alone, does not show an employee was acting with the scope of his employment. (See Anderson v. Pacific Gas & Elec. Co. (1993) 14 Cal.App.4th 254, 260 (Anderson) [“the fact [the employer] paid [the employee] a travel allowance does not automatically make it vicariously liable for [plaintiff’s] injuries”]; Caldwell v. A.R.B., Inc. (1986) 176 Cal.App.3d 1028, 1041, 1042 [relying on precedent holding that payment of a travel allowance, “‘without more,’” did not provide a benefit to the employer sufficient to impose on the employer the liability for plaintiff’s injuries].) The key to these cases is found in the words “without more,” as no other facts showed any benefit to the employer from the employee’s trip. Indeed, Anderson points out that the “going-and-coming rule” has several exceptions, and that generally an exception “will be found when the employer derives some incidental benefit from the employee’s trip.” (Anderson, supra, 14 Cal.App.4th at p. 258.)
Hinman held that where the employer pays the employee for his travel time between his home and the job site, the employee is acting within the scope of his employment during his travel home. (Hinman, supra, 2 Cal.3d at p. 962.)
Union Pacific also asserts that (a) the fact that zone gang members were subject to Union Pacific’s operating rules for the entire time they were in Arizona “is immaterial” because it was a “very general level of control,” and (b) the fact that Union Pacific derived a benefit from the use of zone gangs, allowing it more easily to direct signalmen to areas where work was needed, “stretches the ‘benefit’ concept past its breaking point.” But again, these were simply factors, among the others, that the jury was entitled to consider in determining whether Doi and Torres acted within the scope of their employment.
In short, our examination of Union Pacific’s contentions demonstrates the polar opposite of the conclusion Union Pacific asks us to reach. Any one of the factors that Union Pacific points out, viewed in isolation, might not support a conclusion that Doi and Torres were acting within the scope of their employment. But, as the trial court recognized when it denied Union Pacific’s motion for judgment notwithstanding the verdict, we cannot view each bit of evidence in isolation. (Gallose, supra, 878 F.2d at p.84 [whether an employee is acting within the scope of employment “is a question ‘to be resolved by the jury from all the surrounding circumstances’”]; see also Getty v. Boston & Maine Corp. (1st Cir. 1974) 505 F.2d 1226, 1228 [“‘[e]ach case must be decided on its peculiar facts and ordinarily no one feature of the relationship is determinative’”].) Because the scope of employment issue may be taken from the jury “only when it is clear that ‘reasonable men could not reach differing conclusions’” (Gallose, supra, 878 F.2dat p. 84), we see no basis upon which we may interfere with its verdict.
Thus the trial court rejected Union Pacific’s contention that Doi’s evidence of the zone gang being “paid to travel” did not pass muster as substantial evidence: “Had the ‘paid to travel’ evidence been the only evidence considered, then [Union Pacific’s] argument would have been well-taken. However, here, the evidence was admitted and [was] coupled with other evidence in the record, including the permissive use of the trucks, Pedialyte and food, the GCOR [operating rules] and the Zone Gangs.” (Emphasis in original.)
2. The trial court did not err in instructing the jury on the scope of employment issue or in its evidentiary rulings.
Union Pacific contends it is entitled to a new trial based on errors by the trial court in its instructions to the jury on the scope of employment and in the court’s exclusion of evidence. Both claims are without merit.
a. The claim of instructional error.
The trial court’s instruction to the jury on the scope of employment was derived from the Restatement Second of Agency, section 229. While Union Pacific concedes the instruction (reproduced in footnote 2, ante) was a correct statement of the law, it argues that the court should have omitted five of the eleven factors that were included in the instruction because those factors “misleadingly emphasize certain issues or are irrelevant and a source of confusion in this case.” Specifically, Union Pacific asserts the jury should not have been instructed to consider the following matters of fact when determining whether Doi’s and Torres’s conduct was so similar to or incidental to authorized conduct as to be within the scope of employment:
“(a) whether or not the act or conduct is one commonly done by such employees;”
“(f) whether or not the act or conduct is outside the enterprise of the employer or, if within the enterprise, has not been entrusted to any employee;”
“(g) whether or not the employer has reason to expect that such an act will be done;”
“(h) the similarity of the act done to the act which was authorized;” and
“(k) the extent of any departure from the normal method of accomplishing an authorized result.”
According to Union Pacific, items (a) and (g) “placed undue emphasis on the evidence that employees must travel and purchase food, acts that their employers expect they will perform,” and “[t]hat emphasis is contrary to law ….” Item (f) was irrelevant, Union Pacific claims, because “travel to work and purchase of food and beverages are obviously connected to Union Pacific’s business, but so are the commuting and food buying that employees do in almost all other contexts.” Items (h) and (k) were improper because they allegedly “do not fit this case. To say that Union Pacific may have authorized its gang members to travel to work and buy food and beverages reaches too far because the same may be said about virtually all other employers.” And, Union Pacific asserts regarding the use of its truck, the key was whether the use was for Union Pacific’s benefit, not whether it was authorized, so these factors “gave the jury license to find for plaintiff even if the use of the trucks was primarily for the employees’ benefit.” According to Union Pacific, these instructions “prejudicially tainted the verdict” and “[t]aken together … permitted the jury to reach a verdict that is contrary to law.”
We see no error in the instructions. “As a general rule, it is improper to give an instruction which lacks support in the evidence, even if the instruction correctly states the law.” (LeMons v. The Regents of the University of California (1978) 21 Cal.3d 869, 875, 871-872 [holding it was error to instruct on contributory negligence because the record contained no evidence of negligence on the part of plaintiff (who was unconscious on the operating table)].) But here, Union Pacific fails to demonstrate that the factors it objects to “lack[] support in the evidence.” Instead, it argues these factors placed “undue emphasis” on the employees’ need to travel and to buy food and Pedialyte, and that this was “contrary to law.” This is simply another manifestation of Union Pacific’s erroneous claims that railroad employees are not, as a matter of law, within the scope of their employment when they are commuting or when they are buying food and beverages. As we have seen, that claim misstates the law, and the point was for the jury to decide, based on all the circumstances. We can see nothing in any of the challenged factors that was irrelevant to this case and no basis for withdrawing any of them from the jury’s consideration.
b. The claim of evidentiary error.
Union Pacific asserts the trial court erroneously barred it from presenting witnesses who could have established a foundation to admit Doi’s personnel records, which apparently contain conflicting notations: both a notation that Doi was on leave for an “on duty” injury and a notation that he was on leave for an “off duty” injury. We see no error.
The background is this: The jury heard evidence from Wayne Naro, Union Pacific’s General Director of Labor Relations, who testified that an entry in a document describing Doi’s job history showed Doi’s status as “L.O.A.-P.I.-ON” (meaning leave of absence for personal injury on duty). The record itself was not admitted in evidence. Union Pacific sought to present other witnesses who would establish a foundation for the admission of Doi’s personnel record to show it also contained a notation that Doi was on leave for an off-duty injury. The trial court refused to permit the testimony, stating the evidence was not relevant to the scope of employment issue. Union Pacific claims this was prejudicial error, because “the jury could have relied on the ‘on duty’ notation in finding for [Doi],” and Doi’s counsel emphasized Naro’s testimony in closing argument.
We review a trial court’s ruling on the admissibility of evidence for abuse of discretion. (Zhou v. Unisource Worldwide, Inc. (2007) 157 Cal.App.4th 1471, 1476.) Moreover, an error will not result in the reversal of a judgment unless a different result would have been probable if the error had not occurred. (Id. at p. 1480; Code Civ. Proc., § 475.) In this case, Union Pacific demonstrates neither error nor, if there were one, prejudice. The trial court correctly ruled that the evidence was not relevant. As the court observed, “I don’t care if he’s on duty or off duty.... The question is … whether he is in the course and scope of his employment, it’s not how the employer characterizes it.” Moreover, it was clear from other evidence that Union Pacific considered Doi and Torres to have been off duty at the time of the accident. So even if the excluded evidence were relevant, there is no basis for concluding the verdict would have been different had the evidence been admitted.
3. The award of $35.7 million in noneconomic damages was not excessive as a matter of law.
Union Pacific next contends that the jury’s award of $35.7 million for past and future physical pain and mental suffering is excessive because it is “not supported by the record” and because “verdicts in similar cases demonstrate” that the award was “the product of the jury’s passion and prejudice.” We find no basis upon which we may interfere with the jury’s verdict.
Our review of a claim of excessive damages is limited, and was fully delineated in Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 506-507 (Seffert):
“The amount of damages is a fact question, first committed to the discretion of the jury and next to the discretion of the trial judge on a motion for new trial. They see and hear the witnesses and frequently, as in this case, see the injury and the impairment that has resulted …. As a result, all presumptions are in favor of the decision of the trial court [citation]. The power of the appellate court differs materially from that of the trial court in passing on this question. An appellate court can interfere on the ground that the judgment is excessive only on the ground that the verdict is so large that, at first blush, it shocks the conscience and suggests passion, prejudice or corruption on the part of the jury.”
Seffert further pointed out that there are no fixed or absolute standards by which an appellate court can measure the damages suffered by a plaintiff; that the amount to be awarded is a matter on which “‘there legitimately may be a wide difference of opinion’”; and that “[t]he duty of an appellate court is to uphold the jury and trial judge whenever possible.” (Seffert, supra, 56 Cal.2d at p. 508.)
The evidence the jury and the trial judge heard and saw about Doi’s physical and psychological suffering and the contours of his daily life has been summarized briefly in our recitation of the facts (pages 6-7 ante), and we will not repeat it here. The jury also saw Doi in court. Union Pacific nonetheless contends the award is “not supported by the record,” and, in support of that contention, states that the economic damages awarded will enable Doi “to pay for all the medical care he will need”; Doi “is very smart” and uses the computer, the telephone and his iPod; he is personable and enjoys the emotional support of his family and fiancée; and “[t]hese factors all indicate that the non-economic damages award is excessive.” With respect, they do no such thing. They just reflect Union Pacific’s view of a matter on which “‘there legitimately may be a wide difference of opinion ….’” (Seffert, supra, 56 Cal.2d at p. 508.)
Union Pacific asserts the award “is nearly twice as large as the next largest award Union Pacific has found, and about three times as large as the majority of the awards in other quadriplegia cases.” While we may consider verdicts in similar cases, “obviously, each case must be decided on its own facts and circumstances,” and “the amount of pain and suffering involved in similar physical injuries varies widely.” (Seffert, supra, 56 Cal.2d at p. 508.) And, as Doi points out, even among the cases Union Pacific cites, the results are disparate, demonstrating the potential inequity of deciding that a verdict is excessive based on the facts of other cases as summarized in other appellate opinions. (Cf. Loth v. Truck-A-Way Corp. (1998) 60 Cal.App.4th 757, 764-765 [“[t]he jury must impartially determine pain and suffering damages based upon evidence specific to the plaintiff, as opposed to statistical data concerning the public at large”; the “only person whose pain and suffering is relevant in calculating a general damage award is the plaintiff”].)
In the end, our role as an appellate court is limited to deciding whether the verdict is “so grossly disproportionate to any reasonable limit of compensation warranted by the facts that it shocks the court’s sense of justice and raises a presumption that it was the result of passion and prejudice.” (Johnston v. Long (1947) 30 Cal.2d 54, 76.) In this case, we find no support for the claim that the jury’s award was the product of passion and prejudice. The jury did not award Doi all the economic damages he sought; he got some $209,000 less than he had claimed for loss of wages. Similarly, the jury declined to award future medical expenses based on Doi’s high-end claim of $15.9 million dollars. It also rejected counsel’s suggestion that, if Doi were paid the same hourly rate as one of Union Pacific’s expert witnesses for each of his waking hours for the rest of his life, his damages for pain and suffering would approach $100 million. All this points not to passion and prejudice, but to a verdict in “an amount it [found] reasonable in light of the evidence.” (Westphal v. Wal-Mart Stores, Inc. (1998) 68 Cal.App.4th 1071, 1080, 1078 [also observing the trial court’s ruling is entitled to “great deference”].) Here, the trial judge, “sit[ting] as a thirteenth juror with the power to weigh the evidence and judge the credibility of the witnesses” (Seffert, supra, 54 Cal.2d at p. 507), also reviewed the lesser verdicts in other cases submitted by Union Pacific and nevertheless was “not convinced that the jury clearly should have reached a different verdict....” The court found that the verdict did not “‘shock the sense of justice’ in light of [Doi’s] age, life expectancy, severity of injuries, and suffering ….” We see no basis upon which this court, as a matter of law, can disagree.
4. There was no error in awarding postjudgment interest at the rate of ten percent.
The judgment in this case provides that postjudgment interest will accrue at the rate of ten percent per year, as is the case for all unsatisfied money judgments under California law. (Code Civ. Proc., § 685.010.) Union Pacific contends we should modify the judgment to provide for postjudgment interest at what is now the substantially lower federal rate as stated in section 1961 of title 28 of the United States Code. It bases this contention on a New York State trial court decision issued after the judgment in this case was entered. The New York trial court held that postjudgment interest should be calculated under federal law, because it “constitutes too substantial a part of defendant’s potential liability under the FELA to accept the notion that interest calculations are merely procedural in nature.” (Turner v. CSX Transportation, Inc. (N.Y. Sup.Ct. 2009) 878 N.Y.S.2d 543 (Turner).)
Interest is calculated “at a rate equal to the weekly average 1-year constant maturity Treasury yield” published for the calendar week preceding the date of the judgment. (28 U.S.C. § 1961(a).)
We reject Union Pacific’s contention that federal law applies to an award of postjudgment interest under the FELA. First, Turner is a trial court decision of no precedential value. Second, the federal statute by its terms applies to interest “on any money judgment in a civil case recovered in a district court” (28 U.S.C. § 1961 (a)), and further specifies that the statute “shall not be construed to affect the interest on any judgment of any court not specified in this section.” (28 U.S.C. § 1961 (c)(4).) Third, the United States Supreme Court in 1916 upheld the addition of postjudgment interest under state law in an FELA case. (Louis. & Nash. R.R. Co. v. Stewart (1916) 241 U.S. 261, 263 (Stewart) [“the law of the State makes ten per cent[] the cost … to all persons if the judgment is affirmed”; “the State may allow interest upon a judgment from the time when it is rendered”].) Fourth, even if the federal statute could be applied to a judgment from a state court and even if the Stewart case is “antiquated” as Union Pacific suggests, the reasoning in Turner is faulty and we decline to endorse it.
As we have seen, FELA cases adjudicated in state courts are subject to state procedural rules, while the substantive law governing them is federal. (St. Louis Southwestern R. Co. v. Dickerson (1985) 470 U.S. 409, 411.) It is settled that “‘the proper measure of damages [under the FELA] is inseparably connected with the right of action,’ and therefore is an issue of substance ….” (Monessen Southwestern R. Co. v. Morgan (1988) 486 U.S. 330, 335 (Monessen).) In Monessen, the high court held that “[t]he question of what constitutes ‘the proper measure of damages’ under the FELA necessarily includes the question whether prejudgment interest may be awarded to a prevailing FELA plaintiff.” (Monessen, supra, 486 U.S. at p. 335.) The court explained that “[p]rejudgment interest is normally designed to make the plaintiff whole and is part of the actual damages sought to be recovered,” and in addition, “prejudgment interest may constitute a significant portion of an FELA plaintiff’s total recovery.” (Ibid.) Thus the Supreme Court concluded that prejudgment interest “constitutes too substantial a part of a defendant’s potential liability under the FELA for this Court to accept a State’s classification of a provision such as [Pennsylvania’s rule adding delay damages in personal injury actions] as a mere ‘local rule of procedure.’” (Id. at pp. 336, 339 [holding prejudgment interest is not available under the FELA].)
The Turner court relied on Monessen to conclude that postjudgment interest, like prejudgment interest, “is a part of the proper measure of damages, and thus, similarly to be decided under federal law.” (Turner, supra, 878 N.Y.S.2d at p. 545.) But prejudgment and postjudgment interest are two entirely different animals. We can discern no reasoned basis for concluding that interest accruing on a money judgment is a part of the “measure of damages” under the FELA or any other cause of action. Indeed, the Monessen court and the precedents it relied on support the contrary conclusion. In Ches. & Ohio Ry. Co. v. Kelly (1916) 241 U.S. 485, 491, the court explained that “the question of the proper measure of damages is inseparably connected with the right of action, and in cases arising under the Federal Employers’ Liability Act it must be settled according to general principles of law as administered in the Federal courts.” But the interest on a money judgment is in no way “inseparably connected with the right of action,” whether the right of action arises under the FELA or otherwise. It applies without regard to the nature of the cause of action that led to the judgment. Nor do we see any basis for characterizing postjudgment interest as “part of the actual damages sought to be recovered.” (Monessen, supra, 486 U.S. at p. 335; cf. Weber v. Chicago & Northwestern Transp. Co. (1995) 191 Wis.2d 626, 640-641 [plaintiff in an FELA case was entitled to postverdict/prejudgment interest under Wisconsin law; “the interest at issue in Monessen was different” from postverdict/prejudgment interest].) In short, we see no reason to regard postjudgment interest as an item of damages and no reason not to follow the precedent set by the Supreme Court in Stewart, which permitted a state to “allow interest upon a judgment from the time when it is rendered” in an FELA case at the rate specified in state law. (Stewart, supra, 241 U.S. at p. 263.)
DISPOSITION
The judgment is affirmed. Eric Doi is to recover his costs on appeal.
We concur: FLIER, Acting P.J., BIGELOW, J.
“(1) To be within the scope of the employment, the act or conduct must be of the same general nature as that authorized by the employer, or incidental to conduct that is authorized. “(2) In determining whether or not the act or conduct is so similar to or incidental to an act or conduct authorized as to be within the scope of employment, the following matters of fact are to be considered: “(a) whether or not the act or conduct is one commonly done by such employees; “(b) whether the employee is compensated for the act or conduct; “(c) the time, place and purpose of the act or conduct; “(d) the previous custom and practice between the employer and the employee; “(e) the extent to which the business of the employer is benefited by the act or whether the act primarily benefited the employee personally; “(f) whether or not the act or conduct is outside the enterprise of the employer or, if within the enterprise, has not been entrusted to any employee; “(g) whether or not the employer has reason to expect that such an act will be done; “(h) the similarity of the act done to the act which was authorized; “(i) whether or not the vehicle by which the harm was done has been furnished by the employer to the employee; “(j) whether or not the vehicle was provided by the employer to the employee for the primary purpose of assisting the employer with accomplishing its business purpose or whether the vehicle was provided to the employee to accommodate the employee’s personal needs; and “(k) the extent of any departure from the normal method of accomplishing an authorized result.”