                               FIFTH DIVISION
                              MCFADDEN, P. J.,
                           BRANCH and BETHEL, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                    March 14, 2018




In the Court of Appeals of Georgia
 A17A2081. NORFOLK SOUTHERN RAILWAY COMPANY v.
     LEWIS.

      BETHEL, Judge.

      Norfolk Southern Railway Company appeals from the denial of its motion for

a new trial after a jury awarded damages to Roscoe Lewis in his action brought under

the Federal Employers’ Liability Act (“FELA”). On appeal, Norfolk Southern argues

that the trial court erred by granting Lewis’s motion in limine to exclude evidence of

income that Lewis earned from a car repair business he owned and operated while he

was on medical leave from Norfolk Southern. Because we agree with Norfolk

Southern that evidence of those earnings and his ability to operate a car repair

business were relevant to his claims for lost wages, lost earning capacity, and pain
and suffering, we reverse the decision of the trial court denying Norfolk Southern’s

motion for a new trial.

      The record before us reflects that, while employed at Norfolk Southern, Lewis

injured his back in a work-related accident and did not work for a period of time

thereafter. He later brought suit against Norfolk Southern under FELA, claiming

damages for the injuries he sustained in the accident. Included in his prayer for relief

were claims for “sustained mental and physical . . . pain and suffering, past, present,

and future . . . lost wages in the past and future . . . [and] permanent loss of earning

capacity.”

      During the pendency of the suit, Norfolk Southern became aware that, both

prior to and after the accident that injured him, Lewis ran a side business in which he

repaired cars. Norfolk Southern claimed that a review of Lewis’s bank transactions

reflected earnings from this business during the period of his leave from Norfolk

Southern. Lewis moved in limine to exclude evidence of this side business and the

earnings he received from it, arguing that such earnings were irrelevant to his claims.

The trial court granted that motion over Norfolk Southern’s objection. Specifically,

the trial court prohibited any questions or arguments from either party regarding the

income received by Lewis from performing car repairs but did permit the parties to

                                           2
discuss and offer evidence regarding Lewis’s physical ability to work on cars,

specifically as it related to his claim for damages for pain and suffering.

      The jury returned a verdict in favor of Lewis and awarded him $84,292.75 in

past lost wages and $494,000 for pain and suffering. Norfolk Southern filed a motion

for a new trial, alleging the same grounds it now raises on appeal. The trial court

denied that motion, and this appeal followed.

      FELA “provides a federal tort remedy for railroad employees injured on the

job, [while] working within the scope of their employment.” Zeagler v. Norfolk So.

R. Co., 317 Ga. App. 302, 303 (730 SE2d 657) (2012) (footnote omitted); 45 U.S.C.

§ 51 et seq. A FELA plaintiff can recover special damages for past and future lost

wages and medical expenses and general damages for pain and suffering. Central of

Ga. R. Co. v. Swindle, 260 Ga. 685, 686 (398 SE2d 365) (1990).

      State and federal courts have concurrent jurisdiction over FELA cases,1 and

while the substantive remedies offered by FELA are federal, “FELA cases adjudicated

in state courts are subject to state procedural rules[.]” CSX Transp., Inc. v. Howell,

296 Ga. App. 583, 586 (1) (675 SE2d 306) (2009). Under Georgia law, “[w]e review

the trial court’s decision to admit or exclude evidence under the abuse of discretion

      1
          45 U.S.C. § 56.

                                          3
standard.” C&F Servs., Inc. v. First So. Bank, 258 Ga. App. 71, 75 (1) (573 SE2d

102) (2002); see also Smith v. CSX Transp., Inc., 325 Ga. App. 314, 320 (751 SE2d

604) (2013) (abuse of discretion standard applied to determine whether trial court

erred in admitting certain evidence relevant to plaintiff’s lost wages and earning

capacity in FELA case) (physical precedent only).

      The trial court permitted Norfolk Southern to introduce evidence that Lewis

could work on cars, but only in relation to his claim for pain and suffering. It barred

Norfolk Southern from introducing evidence regarding, or referring to, income he

earned from the business. The trial court’s initial exclusion of this evidence appears

to have been based on its determination that such evidence was not relevant to any

issue in this case. In its order denying Norfolk Southern’s motion for a new trial, the

trial court also indicated its view that evidence of Lewis’s earnings from his car repair

business would have been confusing to the jury and that the risk of such confusion

was substantially greater than the probative value of the evidence. For the reasons set

forth below, it was an abuse of the trial court’s discretion to exclude this evidence on

those grounds.

      OCGA § 24-4-401 provides that relevant evidence is any evidence that has

“any tendency to make the existence of any fact that is of consequence to the

                                           4
determination of the action more probable or less probable than it would be without

the evidence.” OCGA § 24-4-403 provides that “[r]elevant evidence may be excluded

if its probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury or by considerations of undue delay,

waste of time, or needless presentation of cumulative evidence.” In this case, Lewis’s

claims for damages were for lost wages, diminished future earning capacity, and past

and future pain and suffering.

      (a) Lost Wages. Under FELA, the appropriate measure of lost wages for a

FELA plaintiff is the difference between what the plaintiff would have earned on the

railroad and what he might have earned in another position. Jones v. Consol. Rail

Corp., 800 F.2d 590, 594 (6th Cir. 1986); Central of Ga. Railroad Co. v. Ross, 342

Ga. App. 27, 33 (2) (a) (802 SE2d 336) (2017). We note that Jones dealt specifically

with jury instructions on the allowable measure of damages, not whether certain

evidence was relevant to those considerations. However, because the jury in Jones

was not properly informed that the measure of damages for lost wages was the

difference between the plaintiff’s former employment and any interim employment,

reversible error occurred. Jones, 800 F.2d at 594.



                                          5
      In light of the principles discussed in Jones, we agree with Norfolk Southern

that Lewis’s earnings from his car repair business during the period of his leave from

Norfolk Southern are relevant to his claim for lost wages. In this case, Norfolk

Southern came forward with evidence before trial that Lewis earned fees for his car

repair work during the period he was not working for Norfolk Southern. Although the

record reflects that Lewis had apparently done this type of work for pay as a side job

while he was also working for Norfolk Southern and that some of the money he

received was essentially in the form of a “donation” from friends and family

members, he indicated in his deposition that the amounts he received from repairs

increased during the period of his leave from Norfolk Southern.2

      It is plainly arguable, then, as Norfolk Southern has asserted, that additional

earnings from his car repair business offset, or could have offset, some of the income

he lost during his period of leave from Norfolk Southern. This evidence could be used


      2
        At oral argument, Lewis argued that Norfolk Southern never presented any
proof to the trial court that Lewis’s earnings from the car repair business increased
during the period he was on leave. However, in its response to Lewis’s motion in
limine to exclude evidence of his earnings from his business, Norfolk Southern cited
deposition testimony from Lewis stating that he was able to commit more time to his
repair business after the accident and that his earnings from that business increased
as a result. Thus, this argument was clearly before the trial court when it issued its
ruling excluding evidence of these earnings.

                                          6
to contest the extent and value of damages suffered by Lewis. For these reasons, we

hold that the trial court abused its discretion by excluding evidence of Lewis’s

earnings from his repair business from the jury’s consideration of his claim for lost

wages.

      (b) Lost Earning Capacity. “Damages for the injury of loss of earning capacity

may be recovered in a FELA action.” Bissett v. Burlington Northern R. Co., 969 F.2d

727, 731 (II) (c) (8th Cir. 1992) (citation omitted). “Earning capacity means the

potential for earning money in the future[.]” Id. (citation omitted). In arriving at its

verdict, the jury should take into consideration the plaintiff’s work injuries and any

impairment they have caused to his earning power. Swindle, 260 Ga. at 686. To

recover damages for lost earning capacity, “a plaintiff must show that his injury has

caused a diminution in his ability to earn a living. Such a diminution includes a

decreased ability to weather adverse economic circumstances, such as a discharge or

lay-off, or to voluntarily leave the defendant employer for other employment.”

Gorniak v. Nat’l R. Passenger Corp., 889 F.2d 481, 484 (II) (3d Cir. 1989).

      In evaluating lost earning capacity in FELA cases, this Court has held the

plaintiff’s occupational abilities, industriousness, work habits, and experience are

relevant. Smith, 325 Ga. App. at 319. Moreover, the approach of the federal courts in

                                           7
permitting recovery of damages for lost earning capacity under FELA in cases where

the plaintiff is not totally disabled (as is the case here) appears to be broadly

consistent with Georgia law, which calls for a multiplicity of factors to be considered

in evaluating the claimed diminution to the plaintiff’s earning power. As this Court

has held,

      [t]he measure of such damages involves numerous considerations,
      among which are, first, the earnings before the injury, earnings after the
      injury, probability of increased or decreased earnings in the future,
      considering the capacity of the injured party, effects of sickness and old
      age, etc. Recovery for lost earning capacity is an item of special
      damages which requires some evidence upon which a jury can base with
      reasonable certainty a finding as to amount of such damages. While
      proof of the plaintiff’s actual earnings, either before or after the injury,
      is not essential to the establishment of the value of the plaintiff’s
      decreased earning capacity, there must nevertheless appear some
      evidence, either direct or circumstantial, tending to show what the
      plaintiff was capable of earning both before and after the injury.


Jones v. O’Day, 303 Ga. App. 159, 161 (692 SE2d 774) (2010) (citation omitted)

(emphasis supplied).

      In this case, evidence of Lewis’s earnings from his repair business is clearly

relevant to his ability to earn a living after his injury. Such evidence speaks to


                                           8
marketable skills he possesses and the value placed on those skills by others. Such

evidence thus bears directly on his ability to earn a living outside the railroad industry

and his employment relationship with Norfolk Southern. It was therefore an abuse of

the trial court’s discretion to exclude evidence of his earnings from his repair business

from the jury’s consideration in regard to his lost future earning capacity.

      (c) Pain and Suffering. Although it granted Lewis’s motion in limine, the trial

court did permit Norfolk Southern to discuss and offer evidence regarding Lewis’s

physical ability to work on cars, as it related to his claim for damages for pain and

suffering. However, the trial court forbade Norfolk Southern from discussing any

earnings from his car repair business in this context. This was in error.

      As the Second Circuit has discussed, awarding damages for pain and suffering

has traditionally proven to be a vexing task for juries in FELA cases, noting that

“[t]he problem . . . stems from the unavoidably vague measure of damages which the

jury is instructed to apply, i.e., fair and reasonable compensation, to the extent that

injuries, pain and suffering can be translated into dollars.” Mileski v. Long Island R.

Co., 499 F.2d 1169, 1172 (2d. Cir. 1974). However, as with the jury’s consideration

of a plaintiff’s claimed pecuniary loss, it is our view that a broad consideration of



                                            9
factors and evidence relating to the extent of the plaintiff’s claimed pain and suffering

best serves the jury in this enterprise.

      In this case, we agree with the trial court that evidence that Lewis could work

on cars in the time he was off from work is relevant to his claim for damages for pain

and suffering. However, divorced from the fact that he earned compensation for this

work, the jury was left with an incomplete picture of his post-injury abilities. We see

no reason why the fact that he earned money from such work is not relevant to the

jury’s consideration of the extent of his pain and suffering from the injuries he

sustained, as such evidence could better help the jury understand the frequency and

duration of his repair work in addition to allowing the jury to fully consider whether

he experienced anxiety or distress due to his inability to earn a living by working for

Norfolk Southern. Moreover, because this evidence was probative of his ability to

work, perform physical tasks, and earn a living after his injuries and because, as

discussed above, it should have been admitted in the context of Lewis’s claims for

lost wages and earning capacity, we disagree with the trial court’s assessment that the

jury would have been confused by the evidence or that it was unduly prejudicial to

Lewis. Thus, it was error for the trial court to exclude evidence of Lewis’s earnings

from his car repair business from the jury’s consideration of this claim for damages.

                                           10
      (d) Harmful Error. We must also consider whether the trial court’s exclusion

of this evidence was harmful error. OCGA § 9-11-61 provides that

      No error in either the admission or the exclusion of evidence and no
      error or defect in any ruling or order or in anything done or omitted by
      the court or by any of the parties is ground for granting a new trial or for
      setting aside a verdict or for vacating, modifying, or otherwise
      disturbing a judgment or order, unless refusal to take such action
      appears to the court inconsistent with substantial justice. The court at
      every stage of the proceeding must disregard any error or defect in the
      proceeding which does not affect the substantial rights of the parties.


      In this case, the trial court’s erroneous exclusion of evidence relating to

Lewis’s earnings from his car repair business clearly limited Norfolk Southern’s

ability to contest both the extent and value of the injuries sustained by Lewis. As

noted above, such evidence spoke directly to the damages ultimately awarded by the

jury. In light of the evidence’s relevance to several classes of damages claimed by

Lewis, its erroneous exclusion by the trial court constituted harmful error and was

inconsistent with the administration of substantial justice. We therefore reverse the

ruling of the trial court denying Norfolk Southern’s motion for a new trial.

      Judgment reversed. McFadden, P. J., and Branch, J., concur.




                                          11
