APPEAL from the Superior Court of Riverside County. Kenneth Andreen, Judge. (Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) (Super.Ct.No. RIC452358)
The opinion of the court was delivered by: Ramirez P. J.
CERTIFIED FOR PUBLICATION
James Russell Collins, plaintiff, was an employee of Hulcher Services, Inc. (Hulcher), a contractor hired by railroads to clear tracks and rerail train cars following derailments. Following a collision involving two Union Pacific Railroad Company (Union Pacific or defendant) trains, Hulcher responded to the derailment site. Plaintiff, a member of the Hulcher crew, was injured when a block from a Hulcher crane fell on his head. Plaintiff filed a worker's compensation claim against Hulcher, and later filed a complaint for damages against Union Pacific, under the Federal Employers' Liability Act (45 U.S.C. § 51 et seq.) (FELA), on the theory that plaintiff was a "special employee." Plaintiff was awarded $3,945,493.93 in damages against Union Pacific, which was reduced to $2,695,493.93 by way of remittitur. Both Union Pacific and plaintiff appeal.*fn1
On appeal, Union Pacific argues: (1) plaintiff was barred from recovering both worker's compensation benefits and FELA damages; (2) there is insufficient evidence to support the finding that plaintiff was a "special employee" of Union Pacific; and (3) the trial court erred in reducing the worker's compensation lien to pay attorney's fees. On cross-appeal, plaintiff argues that the trial court erred by: (1) conditionally granting Union Pacific's motion for new trial on the ground of excessive damages; and (2) reducing the amount of judgment to reflect a set-off in the amount of the worker's compensation lien, which had been assigned to defendant, thereby denying plaintiff interest on the amount of the lien.*fn2 We affirm.
Late at night on September 7, 2003, two Union Pacific freight trains collided near Beaumont, causing the derailment of more than 20 cars. Hulcher, a company which provides rerailment and derailment cleanup services, was contacted, along with another contractor. At the site of the derailment, a chemical smell was detected, raising concerns about a hazardous material (hazmat) spill, so law enforcement barricaded the roads leading to the site. For this reason, Hulcher's heavy equipment was directed to an area one and one-half miles east of the derailment site where they could assemble their equipment while waiting for the hazardous material team to investigate. The area where the equipment was assembled is referred to as the staging area. On this occasion, the staging area was located approximately 75 yards past the freeway offramp, on a small side street next to the freeway offramp which intersected with San Timoteo Canyon Road.
Hulcher was directed by Union Pacific to bring two 988 end-loaders and two modified 583 sideboom pipelayers. Plaintiff was with the 988's. Because the equipment is too wide and too heavy to drive on a public street, Hulcher had to obtain permits to move the sidebooms and loaders from the Hulcher facility to the staging area. The sidebooms had to be transported in sections and reassembled at the staging area due to their size and the damage they might cause to asphalt.
A 583 sideboom has an A-frame pole on one side with two cables running through a block and tackle. One cable controls the boom, allowing it to be raised and lowered, and the second cable goes through the block and tackle, controlling the up and down movement of the hook. To lower the boom, the brake must be released simultaneously with the boom to prevent tension from building up on the block and tackle assembly. The sideboom could pick up a derailed train car and rerail it.
At approximately 4:30 or 5:00 a.m. on September 8, 2003, the hazmat and fire officials gave the okay for the heavy equipment to come down to the derailment site, and Union Pacific informed Hulcher of the release. The operators of the heavy equipment proceeded down San Timoteo Road when a power pole and power lines spanning the road were spotted. The first 583 lowered its boom and proceeded under the power line and cleared it. The second sideboom then proceeded, with plaintiff guiding and directing it under the power line. When the second boom lowered, the block came loose and fell, striking the plaintiff on the head.
Plaintiff suffered a fractured jaw, extensive facial laceration, cerebral bleeding (which was resolved prior to discharge from the hospital), multiple fractures of the face near the nose with mouth displacement, swelling of the sinuses at the front of head and base of skull, a punctured lung, and soft tissue swelling of the throat which required a tracheostomy. Plaintiff's jaw was surgically rebuilt in staged surgeries, with bone grafts from his hip, and he suffered from cognitive deficits after the accident. Plaintiff suffered 8 percent impairment from the brain injury and was determined to suffer a permanent partial disability.
Plaintiff was out of work, recovering from his injuries, from September 2003 to January 2004. He was in pain and confused, and questioned his ability to plan or make decisions as he could not track exactly what was going on when he gave directions. Because he had difficulty with sleep, his doctor prescribed Ambien, which prevented him from being on call for eight hours.*fn3 Hulcher gave plaintiff an ultimatum to either take the medication and go on leave of absence, or to stop taking the medication, so plaintiff went on medical leave in 2006, approximately two years after returning to work. Plaintiff remained out of work until 2008, when he got a job working at White's Steel as a crane operator. However, he was fired eight months later, because a drug test was positive for prescription medication after he blew out a tire on a crane. As a result, plaintiff stopped taking all pain medication and moved to Texas to stay with family. At the time of trial, plaintiff was working as a crane operator in Texas, earning less than he did when he was employed by Hulcher.
A Cal-OSHA investigation concluded that the equipment was not maintained in a safe manner to prevent it from loosening and falling. One of the likely causes of the incident was the failure of the operator of the 583 sideboom to slack the line as he lowered the boom, causing tension and pulling the tail of the cable through the block.
On June 27, 2006, plaintiff filed an action for damages against Union Pacific, under the FELA. Trial was bifurcated. Following the liability portion of the bifurcated jury trial, special verdicts were rendered in favor of plaintiff. Specifically, the jury found: (1) Union Pacific had the right to control the work of plaintiff and his fellow Hulcher co-workers at the time of plaintiff's injury; (2) Union Pacific was negligent under the FELA; and (3) plaintiff was not negligent.
During the damages portion of the trial, plaintiff's expert, who treated plaintiff and prepared a report in 2003, described the severity of plaintiff's injury and the continuing problems he experienced during his recovery. Plaintiff's expert described the brain injury as severe. In his opinion, plaintiff required continuing treatment in the form of a vocational rehabilitation team as well as a neuropsychologist to evaluate his cognitive skills and provide therapy. The cost of such programs was estimated at $100,000. However, at his most recent evaluation of plaintiff, he noted that plaintiff denied any cognitive complaints and was not currently receiving medical attention due to financial limitations and plaintiff's work schedule. Another doctor who treated plaintiff noted in 2007 that plaintiff had no cognitive or neurological deficit.
A defense expert evaluated plaintiff in 2010. Although he found some residual problems from the facial and other physical injuries, and while he determined it was reasonable to conclude plaintiff had suffered trauma to his head and face, he characterized the injury as mild traumatic brain injury. His diagnosis was based on the fact that someone with moderate to severe brain injury would not be able to maintain gainful employment. He also explained that the plaintiff's expert had conducted tests within five weeks of plaintiff's trauma when plaintiff was still on narcotic pain medication.
Following the damages portion of the trial, the jury determined that plaintiff should recover: (a) lost earnings in the amount of $132,583.33; (b) past medical expenses of $137,910.60; (c) future lost earnings of $75,000; (d) future medical expenses of $100,000; (e) past non-economic loss (pain and suffering) of $1.75 million; and (f) future non-economic loss of $1.75 million, for total damages in the amount of $3,945,493.93.
On May 12, 2010, Union Pacific filed motions for a new trial based on excessive damages, as well as a motion for judgment notwithstanding the verdict challenging the jury's finding that plaintiff was a borrowed servant. Union Pacific also made a motion to amend the judgment to reflect a set-off of $205,195.16 against the damage award, for the workers' compensation lien which Hulcher assigned to Union Pacific.
The court granted the motion for new trial on damages, subject to the condition that the motion for new trial would be denied if plaintiff consented to a reduction. The court determined that plaintiff's expert over-emphasized the injury and its effect on plaintiff. The court determined that the award of non-economic damages was excessive, and should be reduced to $1 million. The court reduced the award for future non-economic damages to $1.25 million. The motion for judgment notwithstanding the verdict was denied, but ordered that the damages be offset by the amount of the workers' compensation lien. The final judgment reflected that plaintiff would recover net damages in the ...