               IN THE SUPREME COURT OF IOWA
                               No. 12–2023

                         Filed February 28, 2014


JOHN GIZA,

      Appellee,

vs.

BNSF RAILWAY COMPANY,

      Appellant.



      Appeal from the Iowa District Court for Polk County, Mary Pat

Gunderson, Judge.



      A railroad appeals from a damage verdict in favor of an employee in

a Federal Employers’ Liability Act case, asserting error in the exclusion of

evidence. REVERSED AND REMANDED.



      Wayne Lindsey Robbins, Jr. of BNSF Railway Law Department,

Fort Worth, Texas, and Michael W. Thrall, Angel A. West, and Matthew R.

Eslick of Nyemaster Goode, P.C., Des Moines, for appellant.



      Mark E. Weinhardt of Weinhardt & Logan, P.C., Des Moines, and

Rick D. Holtsclaw and Bradford C. Kendall of Holtsclaw & Kendall, L.C.,

Kansas City, Missouri, for appellee.
                                      2

MANSFIELD, Justice.

      This case involves a long-time employee of a railroad who suffered

a knee injury as a result of the railroad’s negligence.      Because of the

injury, the employee was no longer able to work at his job. At the time of

the injury, the employee was nearly fifty-nine, and he would have been

eligible to retire on full benefits at age sixty. Indeed, he had previously

checked the railroad’s website to determine the benefits he would receive

if he retired at age sixty.

      Following the injury, the employee sued the railroad in the Polk
County District Court under the Federal Employers’ Liability Act (FELA).

In the litigation, the employee claimed he had planned to work until age

sixty-six and, on that basis, sought approximately $755,000 in economic

damages.     To challenge this asserted retirement date, the railroad

attempted to introduce evidence that the plaintiff was eligible to retire on

full benefits at age sixty and had checked the railroad’s website regarding

his retirement benefits, as well as statistical evidence that most railroad

employees in the plaintiff’s position retire at age sixty.

      Based on its reading of the federal collateral source rule applicable

to FELA cases, the district court excluded the railroad’s evidence. The

jury subsequently awarded $1.25 million to the plaintiff in a general

verdict covering both economic and noneconomic damages. The railroad

appeals, arguing the district court’s reading of the federal collateral

source rule in FELA cases was incorrect.

      On our review, we agree with the railroad in part. When a railroad

employee makes a claim of lost earning capacity based on a hypothetical

retirement age, we do not believe federal law precludes the introduction
of statistical evidence as to when railroad workers in the plaintiff’s

position typically retire.    Because this excluded evidence was relevant
                                        3

and important to the railroad’s defense, we reverse and remand for a new

trial on damages.

      I. Facts and Procedural History.

      John Giza was born in 1950. In 1969, after graduating from high

school, he went to work in Creston for the CV&Q Railroad as a

brakeman-switchman. Except for a stint in the Navy, Giza continued to

work for the railroad, which eventually became part of BNSF, for the next

forty years.    In 1978, Giza’s seniority enabled him to become a

conductor.     This meant he still had the physical job duties of a
brakeman-switchman       but   also     had   paperwork   and   supervisory

responsibilities.

      Giza’s everyday work required him to assemble and disassemble

trains by gathering up railcars from customers and breaking them down

for customers along a stretch of railroad between Creston and

Shenandoah. Giza had to climb ladders, ride on moving railcars, walk

railcars, release and connect the “knuckles” between railcars, and walk

on ballast.

      On October 9, 2009, Giza was riding on the ladder of a railcar in

the Red Oak yard as a locomotive was slowly pushing the railcar

backwards. Giza was “protecting the point,” that is, he was watching the

crossing toward which the car was being pushed while talking on a

handheld radio with the locomotive’s engineer. Suddenly, Giza heard a

bumping sound, indicating the train had derailed. Giza was thrown off

the railcar and landed on his left foot. He instantly heard a pop in his

left knee and felt excruciating pain.

      Giza suffered a tear of his anterior cruciate ligament, a sprain of
his medial collateral ligament, and a medial meniscal tear. Orthopedic

surgery was performed on the knee on November 20, 2009. This was
                                          4

followed by physical therapy, manipulation, and injections on the knee.

None of these gave Giza the relief from pain or flexibility he needed to go

back to his former job.           Giza could no longer climb ladders, walk on

uneven surfaces, or stand for long periods of time. At the time of trial,

Giza was still enduring constant knee pain at some level, and the pain

became considerably worse when he tried to walk.

      Giza brought suit against BNSF under FELA. See 45 U.S.C. § 51

(2012).1     He alleged that the railroad’s negligence caused his injuries.

Although BNSF initially disputed liability, by the time of trial, it had
admitted fault and was only contesting damages.

      Giza was nearly fifty-nine years old when the accident occurred.

Giza sought recovery of lost earning capacity and loss of the value of

household work services. Giza also requested damages for his pain and

suffering.

      Before trial, Giza acknowledged in deposition testimony that he

was eligible to retire at age sixty on full pension, having worked at least

thirty years for the railroad.         He had checked the railroad’s website

before the accident to determine his estimated retirement benefits.

However, he testified that he personally had intended to wait until age

sixty-six to retire.


      1This   statute provides:
              Every common carrier by railroad while engaging in commerce
      between any of the several States or Territories, or between any of the
      States and Territories, or between the District of Columbia and any of the
      States or Territories, or between the District of Columbia or any of the
      States or Territories and any foreign nation or nations, shall be liable in
      damages to any person suffering injury while he is employed by such
      carrier in such commerce . . . due to its negligence . . . .
45 U.S.C. § 51. State courts have concurrent jurisdiction over FELA claims. See id.
§ 56.
                                        5

      Giza’s expert, Dr. John Ward, estimated Giza’s lost earnings using

the retirement age of sixty-six. His report initially stated, “Age 66 is the

full benefit retirement age of all railroad workers born in 1950 as

reported by the Railroad Retirement Board.” Later this was amended to

read, “For persons born in 1950, age 66 is the age at which an individual

may receive an unreduced benefit at retirement under the Social Security

Act.”2 He estimated loss of income at approximately $755,000 for those

seven years (fifty-nine to sixty-six) if Giza were not able to secure and

maintain alternative employment.
      BNSF’s expert, Mark Erwin, filed a report noting that railroaders

with thirty or more years of service retire on average at age 60.7, and

over sixty-two percent of them retire at age sixty. He also pointed out

that railroad retirement benefits are largely exempt from federal taxes.

Erwin discussed Giza’s retirement benefits and concluded that based on

the relative financial impact of working as opposed to retiring, it was

“unlikely” Giza would have worked past age sixty even if he had not been

injured.

      Before trial, Giza filed a motion in limine seeking to exclude (1) all

evidence of the average age of retirement for railroad workers and (2) all

evidence regarding potential railroad retirement benefits.           The district

court ultimately granted the motion. Originally, the court said it would

allow BNSF to show that Giza would be eligible to retire at age sixty but

would not allow the railroad to go into the retirement benefits available to

him. The court explained that its ruling was based upon FELA caselaw.



      2Railroad  workers are subject to the Railroad Retirement Act, not the Social
Security Act. See Heckman v. Burlington N. Santa Fe R.R., 837 N.W.2d 532, 539 (Neb.
2013).
                                    6

      Both sides took issue orally with this ruling.       Upon further

consideration of FELA precedents, the court ruled that BNSF could not

go into a railroader’s retirement age, even without referring to benefits.

The court also ruled BNSF could not introduce evidence that, prior to his

injury, Giza had checked his retirement benefits on the BNSF website.

      In his trial testimony, Giza reiterated that if he had not been

injured, he planned to work until he was sixty-six. Dr. Ward testified he

had calculated $755,000 in lost income based on Giza’s statement that

he intended to retire at age sixty-six.     Dr. Ward acknowledged his
statement in his report that sixty-six is the age at which an individual

may receive an unreduced Social Security benefit.          Under cross-

examination, Dr. Ward added that Giza’s retirement

      is his individual decision of what he wants to do. He is
      simply going to weigh how much he could earn by working
      against what he would earn not working; what benefits he
      would receive; his own health and his own enjoyment of the
      job, and it is his opinion that it is age 66.

             Q. Okay. Would you agree with me that a person, in
      making those types of decisions, are going to weigh the very
      factors that you outlined, weigh what benefits they would
      receive, what income they would earn, comparing that
      versus retirement versus employment to determine when to
      retire? A. That is correct. He would be weighing, basically,
      earnings of approximately $106,000 a year, plus benefits of
      health insurance for he and his wife, versus what he would
      get by not working.

            ....

             Q. [Y]ou would agree with me that it would be fair,
      and certainly economically supported, to look at what other
      people do in testing that testimony or that information that
      you were provided by Mr. Giza? A. I have no problem with
      that, no.

      With the jury excused, BNSF asked the court to reconsider its
ruling on the motion in limine, arguing:
                                            7
       [A]s the Court’s ruling stands right now, the railroad has
       been precluded from doing anything to test Mr. Giza’s
       testimony that he would have retired at age 66. We have not
       been allowed to explore the topic as to his understanding as
       to when he could retire. And we have not been allowed to
       explore the efforts that he undertook prior to this incident to
       evaluate and look at what benefits he would have received
       upon retirement. We have not been permitted to introduce
       evidence as to the statistical or actuarial studies that would
       indicate when railroaders actually do retire, nor explore with
       either Dr. Ward or Mr. Giza as to what benefits he would
       have received upon—upon retirement.

The court declined to reconsider its ruling but permitted BNSF to make

an offer of proof.
       In the offer of proof, BNSF introduced statistical and actuarial

tables showing when railroaders usually retire.3               It also had Dr. Ward

acknowledge that 62.1% of railroaders with thirty years of service retired

at age sixty according to these data.            Dr. Ward further admitted that

railroad    retirees   generally     have    health    insurance      available    upon

retirement. In addition, BNSF introduced pages from Giza’s deposition

and Erwin’s curriculum vitae and report.

       Later, at the jury instruction conference, the court declined to give

BNSF’s proposed instruction 36, which read:

       You are not to award damages for any injury or condition
       from which the Plaintiff may have suffered or may now be
       suffering unless it has been established, by a preponderance
       of the evidence in the case, that such injury or condition was
       caused by the accident in question.




       3Both  tables gave percentages for different actual retirement ages for railroaders
with thirty years or more of service. One table, covering the years 2004 through 2006,
indicated that 62.1% of railroaders with thirty or more years of service retire at age
sixty, and another 18.4% retire at age sixty-one. The other table, covering the years
2003 through 2010, indicated that eighty-three percent of railroaders with thirty or
more years of service retire at age sixty or sixty-one, with 60.7 being the average
retirement age.
                                     8

The court ruled the instruction “at best is cumulative and unnecessary,

at worst is confusing.”

      During closing argument, Giza’s counsel made the point three

times that Giza planned to work until age sixty-six.        In his rebuttal

argument, Giza’s counsel added:

      If someone asked or wants to debate how do we know John
      was going to retire at age 66? . . . .

            Well, first of all, John Giza has always testified, when
      he talked to Mr. Thrall, when he talked to you, he’s always
      said that. And, again, 51 percent, but there is a lot more.
      Again, more than 51 percent. This is a job he worked very
      hard to get to. Forty years of seniority. This is the job he
      had chosen to work since they put it on because it was a
      steady job, five days a week steady. Now, he knew when he
      was going home, he got his weekends off. He’s making
      almost $96,000 a year at this job. This was the job that you
      work all those years for to get there. There is—no evidence
      has been—none—introduced in this trial there was anything
      in John Giza’s mind about retirement until age 66. Our
      burden has been met.

      Giza’s counsel also said the following during rebuttal argument:

      If someone wants to talk about, hey, the railroad admitted
      it’s their fault, they should get some credit for that, remind
      them that’s not the law. You cannot do that. You can only
      consider the harms and the losses that they have caused to
      Mr. Giza.       There is a concept called the concept of
      repentance.

At this point, BNSF’s counsel objected, and a conference was held

outside the presence of the jury.     BNSF’s counsel explained, “I can’t

imagine that there would be proper closing arguments on repentance as

part of this particular case.” The district court told Giza’s counsel to use

other language and overruled BNSF’s motion for mistrial. Giza’s counsel

then resumed his rebuttal argument.

      The jury returned a verdict of $1,250,000 for Giza.      The district
court denied BNSF’s motion for new trial. This appeal followed.
                                     9

      On appeal, BNSF raises five arguments.          First, it contends it

should have been able to introduce evidence that Giza would have been

eligible to retire at age sixty with full retirement benefits.    Second, it

maintains it should have been able to introduce evidence of when

railroad workers typically retire, without going into their retirement

benefits.   Third, it argues the district court should have granted a

mistrial based on Giza’s improper “repentance” argument.           Fourth, it

insists the jury’s verdict should have been overturned as a product of

passion and prejudice. Finally, BNSF contends the district court erred in
refusing to give its proposed jury instruction 36.

      II. Standard of Review.

      We review a district court’s evidentiary rulings for an abuse of

discretion. Hall v. Jennie Edmundson Mem’l Hosp., 812 N.W.2d 681, 685

(Iowa 2012). “A court abuses its discretion when its ruling is based on

grounds that are unreasonable or untenable.”         In re Trust No. T-1 of

Trimble, 826 N.W.2d 474, 482 (Iowa 2013). “The grounds for a ruling are

unreasonable or untenable when they are based on an erroneous

application of the law.”       Id. (internal quotation marks omitted).

Therefore, under our abuse-of-discretion standard, “we will correct an

erroneous application of the law.” Rowedder v. Anderson, 814 N.W.2d

585, 589 (Iowa 2012).

      Denial of a motion for new trial “based on a discretionary ground

such as misconduct” is reviewed for an abuse of discretion.         Loehr v.

Mettille, 806 N.W.2d 270, 277 (Iowa 2011). Similarly, “[w]e review the

district court’s denial of a motion for new trial based on the claim a jury

awarded excessive damages for an abuse of discretion.”           WSH Props.,
L.L.C. v. Daniels, 761 N.W.2d 45, 49 (Iowa 2008) (internal quotation

marks omitted).    Additionally, we review a claim that a district court
                                         10

should have given a party’s requested instruction for an abuse of

discretion. Mulhern v. Catholic Health Initiatives, 799 N.W.2d 104, 110

(Iowa 2011).

       III. Legal Analysis.

       A. Eichel v. New York Central Railroad.                  For the first two

issues on appeal, both parties agree our starting point should be the

United States Supreme Court’s decision in Eichel v. New York Central

Railroad, 375 U.S. 253, 84 S. Ct. 316, 11 L. Ed. 2d 307 (1963) (per

curiam).    Eichel, like the present case, was an action for negligence
brought by a railroad employee against his employer under FELA.4 Id. at

253, 84 S. Ct. at 316, 11 L. Ed. 2d at 308. The railroad in Eichel had

sought to introduce evidence that the employee was receiving a specific

sum per month in disability pension payments under the Railroad

Retirement Act. Id. This was offered “for the purpose of impeaching the

testimony of [the employee] as to his motive for not returning to work and

as to the permanency of his injuries.” Id. at 254, 84 S. Ct. at 316, 11 L.

Ed. 2d at 308. The district court excluded the evidence and the Supreme

Court upheld this ruling. Id. at 254–56, 84 S. Ct. at 317, 11 L. Ed. 2d at

308–09.

       As the Court explained,

       In our view the likelihood of misuse by the jury clearly
       outweighs the value of this evidence. Insofar as the evidence
       bears on the issue of malingering, there will generally be
       other evidence having more probative value and involving
       less likelihood of prejudice than the receipt of a disability
       pension. Moreover, it would violate the spirit of the federal
       statutes if the receipt of disability benefits under the
       Railroad Retirement Act of 1937, 50 Stat. 309, as amended,

       4FELA  predates the wide passage of workers’ compensation statutes and enables
injured railroad workers to sue their railroad employers under federal law for
negligence. See Snipes v. Chicago, Cent. & Pac. R.R., 484 N.W.2d 162, 164 (Iowa 1992).
                                           11
       45 U.S.C. s 228b(a)(4), were considered as evidence of
       malingering by an employee asserting a claim under the
       Federal Employers’ Liability Act. We have recently had
       occasion to be reminded that evidence of collateral benefits is
       readily subject to misuse by a jury. It has long been
       recognized that evidence showing that the defendant is
       insured creates a substantial likelihood of misuse. Similarly,
       we must recognize that the petitioner’s receipt of collateral
       social insurance benefits involves a substantial likelihood of
       prejudicial impact. We hold therefore that the District Court
       properly excluded the evidence of disability payments.

Id. at 255, 84 S. Ct. at 317, 11 L. Ed. 2d at 309 (footnotes and internal

citations omitted).

       In Snipes v. Chicago, Central & Pacific Railroad, we applied Eichel.

See 484 N.W.2d 162, 166–67 (Iowa 1992). There we affirmed a district

court’s refusal to admit evidence that an injured employee had received a

monthly annuity under the Railroad Retirement Act (RRA). Id. As we

put it, “The federal law is well settled that, under the FELA, the collateral

source rule operates to prevent consideration of RRA disability pension

payments in mitigation of damages suffered by an injured employee.” Id.

at 166. We declined to consider the railroad’s policy arguments, noting

that “our decision must be guided by federal case law.” Id. at 167.5

       B. Applying Eichel to This Case.                      Strictly speaking, the

retirement benefits involved here are not collateral source payments.


       5Other   courts agree that the collateral source rule to be applied in a FELA case,
regardless of whether the case is filed in federal or state court, is a question of federal
law. See Morse v. S. Pac. Transp. Co., 133 Cal. Rptr. 577, 581 (Ct. App. 1976) (“The fact
that the admissibility of evidence is normally considered a ‘procedural’ question does
not make California law controlling.”); Hileman v. Pittsburgh & Lake Erie R.R., 685 A.2d
994, 997 (Pa. 1996) (“Eichel has subsequently been applied not simply as a rule on the
admissibility of evidence in a particular case, but as a substantive precept of federal
common law in FELA cases.”); Roberts v. CSX Transp., Inc., 688 S.E.2d 178, 183 (Va.
2010) (stating that “whether a jury may be presented with evidence of remuneration
from third-parties” in a FELA case is a question of federal law); see also Brumley v. Fed.
Barge Lines, Inc., 396 N.E.2d 1333, 1340 (Ill. App. Ct. 1979) (holding in an analogous
Jones Act context that “the application of the collateral source rule, normally a question
of state law, is in the present context a matter of federal law”).
                                     12

They are not paid on account of an injury, nor are they compensation for

an injury. See Pexa v. Auto Owners Ins. Co., 686 N.W.2d 150, 156 (Iowa

2004) (“The collateral source rule is a common law rule of evidence that

bars evidence of compensation received by an injured party from a

collateral source.”); see also Schonberger v. Roberts, 456 N.W.2d 201,

202 (Iowa 1990) (“Under the collateral source rule a tortfeasor’s

obligation to make restitution for an injury he or she caused is

undiminished by any compensation received by the injured party from a

collateral source.”). The railroad’s aim here is not to show that Giza is
receiving other compensation, but to call into question his claim that he

would have worked until he was sixty-six if he had not been injured.

      Having said that, some intermediate state appellate courts

following Eichel have refused to allow evidence of the availability of

railroad retirement benefits even for this purpose. In Griesser v. National

Railroad Passenger Corp., the Pennsylvania Superior Court held Amtrak

could not introduce evidence that its employee would be eligible to retire

at age sixty with full pension benefits to counter an expert calculation of

lost earning capacity based on an expected retirement age of sixty-five or

seventy. See 761 A.2d 606, 612–13 (Pa. Super. Ct. 2000). The court

acknowledged: “The instant case presents a more attenuated link

between the injury and the benefits at issue. The benefits at issue are

future retirement pension benefits and not current disability benefits.

Thus, the benefits are not related to the injury.” Id. at 610. Nonetheless,

the Pennsylvania court warned of “the danger that the jury would use

this evidence for the improper purpose of mitigating Appellant’s damages

or reducing Amtrak’s liability.” Id. at 613.
      Likewise, in Norfolk Southern Railway v. Tiller, the Maryland Court

of Special Appeals held a trial court correctly refused to let a railroad
                                         13

show an injured employee would have been eligible to retire at age sixty,

notwithstanding the employee’s testimony that he planned to retire at

age sixty-five. See 944 A.2d 1272, 1274–75, 1286 (Md. Ct. Spec. App.

2008). The court reasoned the situation was covered by Eichel:

              The use the defendant railroad sought to make of the
       disability pension benefits in Eichel was closely analogous to
       the use Norfolk Southern sought to make of the future
       pension benefits in this case. The New York Central was
       trying to show that the injured employee in that case had a
       motive not to go back to work because he was then collecting
       disability pension benefits. Norfolk Southern was trying to
       show that Tiller would have had a motive for not continuing
       to work past age 60 because he could then have been
       collecting retirement pension benefits. In each case, the
       motive not to work because of benefits as an alternative to
       work was the same. We do not see the difference in the
       tenses as compelling a different result.

Id. at 1281.6

       One can debate this point. The defendant’s goal in introducing the

disability payments in Eichel was to show the plaintiff was not injured as

badly as he claimed and was not motivated to go back to work. Yet as

the Supreme Court noted, “[O]n the issue of malingering, there will

generally be other evidence having more probative value and involving

less likelihood of prejudice than the receipt of a disability pension.”
Eichel, 375 U.S. at 255, 84 S. Ct. at 317, 11 L. Ed. 2d at 309. Moreover,

there is a significant danger of prejudice when the jury learns the

plaintiff is receiving other compensation for the same injuries for which

he is seeking compensation. By contrast, in Tiller, the purpose of the

evidence was not to show the plaintiff was a malingerer or that he was

not injured as severely as he claimed to be.             See 944 A.2d at 1286.

       6See  also Brumley, 396 N.E.2d at 1339 (holding in a Jones Act case that
evidence of retirement and pension benefits was not admissible for the limited purpose
of demonstrating the plaintiff’s motivation to retire at age sixty-five).
                                          14

Rather, the evidence was intended to show that he would have retired at

age sixty even if he had not been injured. Id.

       Nonetheless,     in   Griesser,    the    Pennsylvania      Superior     Court

remained concerned “the jury could conclude that [the railroad] was

liable for lost wages to age 65 or 70, but then decline to award such

damages because of the fortuitous existence of equivalent retirement

benefits.” 761 A.2d at 612. Otherwise stated, the concern appears to be

that the jury, notwithstanding any limiting instruction, would: (1) believe

the plaintiff’s testimony he intended to retire at age sixty-five; (2) assume
the plaintiff now can retire at age sixty; and (3) therefore award the

plaintiff less than the full lost wages through age sixty-five by offsetting

some amount for the retirement benefits available at age sixty.

       Of course, the jury would have no reason to conclude the

retirement benefits were “equivalent” (and the record in this case

indicates they are not) without evidence as to their amount.7 Also, the

same potential prejudice noted in Griesser can arise in any case where a

plaintiff seeks damages for loss of future earning capacity beyond a

possible retirement date; it is not limited to railroad cases.

       Some courts have therefore held that Eichel allows railroads to

introduce evidence of when their employees are eligible to retire.                See,

e.g., Cowden v. BNSF Ry., ___ F. Supp. 2d ___, 2013 WL 5838718 (E.D.

Mo. 2013). In Cowden, a railroad employee brought an action against

the railroad under FELA to recover damages for his injuries sustained in

a rail accident. Id. at ___, 2013 WL5838718 at *1. Relying on Griesser,

       7In Griesser, the jury could have reached this conclusion because the railroad’s
expert testified that the plaintiff “would be basically making as much after taxes from
pension as he would from earnings.” 761 A.2d at 608. BNSF does not contend it
should have been permitted to present evidence as to the amount of Giza’s retirement
benefits.
                                      15

the plaintiff sought to “exclude any suggestion that, had he not been

injured, he could have retired with benefits at the age of 60.” Id. at ___,

2013 WL5838718 at *16. While the court agreed the defendant could not

“introduce evidence regarding the availability or amount of retirement

benefits,” it also stated the “Plaintiff cannot expect to testify he

unequivocally intended to retire at the age of 67, thereby increasing any

potential damages, without allowing Defendant an opportunity to

challenge his assertions.” Id. at ___, 2013 WL5838718 at *17. Citing a

previous federal district court case, it therefore held that the defendant
could “offer evidence that Plaintiff was ‘eligible to retire’ at the age of 60.”

Id. (citing Stevenson v. Union Pac. R.R., No. 4:07CV00522 BSM, 2009 WL

652932, at *3 (E.D. Ark. Mar. 12, 2009)). Likewise, a Missouri appellate

court held in a FELA case that the admission of evidence that the

plaintiff was eligible to retire at age sixty did not amount to plain error.

See Payton v. Union Pac. R.R., 405 S.W.3d 1, 7 (Mo. Ct. App. 2013). The

court explained, “The collateral source rule applies to evidence of

collateral compensation for a plaintiff’s injury.       Here, neither [of the

witnesses who testified about eligibility to retire at age sixty] testified

about any collateral compensation.” Id. (citation omitted).

      BNSF argues that, at a minimum, it should have been able to

introduce statistical data showing railroad employees with thirty years of

service tend to retire at age sixty. The highest court in Maryland has

agreed with this position.    In CSX Transportation, Inc. v. Pitts, decided

after the trial in this case, the Maryland Court of Appeals distinguished

Tiller and held that “although retirement eligibility information in a FELA

case is barred by the collateral source rule, statistics about average
retirement age for railroad workers is not.” 61 A.3d 767, 791 (Md. 2013).

The court elaborated:
                                    16
             Use of industry statistics about average retirement age
      in this context is not evidence of other compensation the
      plaintiff would receive for the same damage, but rather,
      evidence that shows that the full amount of lost wages
      claimed by the plaintiff may not exist. In other words, the
      tables may cast doubt on a plaintiff’s statement that he
      would work until a certain age, and thus suggest to the fact-
      finder that the lost wage claim was exaggerated. . . .

             Although the collateral source rule bars evidence of
      disability and retirement benefits, a defendant railroad
      should not be defenseless against the plaintiff’s “1–2
      combo”—self-serving testimony about his retirement plans
      and expert projections about damages based on that
      testimony. Moreover, it would be unfair to allow the plaintiff
      to clothe his own prediction about his retirement date with
      the protective folds of the economist’s projections about
      damages, while denying the defendant the right to use cross-
      examination to cast legitimate doubt on the assumption
      made by that economist that the claimant would retire at age
      68.

Id. at 792. The court added that “statistics discussing an individual’s

projected date of retirement, or worklife expectancy, have been widely

held to be relevant when future wage loss is at issue.” Id. at 791 (citing

cases).     The court concluded that the trial court did not have the

discretion to exclude evidence relating to railroad work-life expectancy

tables, although it affirmed the verdict because the railroad did not ask

the right questions. Id. at 794.

      Griesser also appears to leave the door open for this kind of
evidence.     While holding that Amtrak was not entitled to show an

employee could have retired on full benefits at age sixty, the court did

indicate that Amtrak could have cross-examined plaintiff’s expert on the

fact that “railroad workers commonly retire at age 60 if they have 30

years of service.” Griesser, 761 A.2d at 613.
                                         17

       These kinds of statistical data also have been found admissible in

the analogous Jones Act context.8             See, e.g., Madore v. Ingram Tank

Ships, Inc., 732 F.2d 475, 478 (5th Cir. 1984).            In Madore, the court

found fault with the district court’s conclusion that a disabled seaman

was going to retire at age sixty-five when the parties’ experts both

estimated he would retire approximately five years before that based on

Department of Labor work-life expectancy rates.             Id.   The court noted

evidence may show “a particular person, by virtue of his health or

occupation or other factors, is likely to live and work a longer, or shorter,
period than the average. Id. However, when such evidence is absent, as

it was in Madore, “computations should be based on the statistical

average.” Id.; see also Earl v. Bouchard Transp. Co., 735 F. Supp. 1167,

1175 (E.D.N.Y. 1990) (observing in a Jones Act case that “[s]tatistical

charts, such as the mortality tables and work-life expectancy tables

prepared by the United States Department of Labor, compile averages

and are often deemed authoritative [in determining work-life expectancy],

particularly in the absence of contradictory particularized evidence.”),

aff’d in part, rev’d in part, and remanded, 917 F.2d 1320 (2d Cir. 1990).

       When considering lost earning capacity claims in other contexts,

courts have found average retirement ages to be relevant and admissible.

See, e.g., Boucher v. U.S. Suzuki Motor Corp., 73 F.3d 18, 20, 23 (2d Cir.

1996) (holding the trial court did not abuse its discretion when it allowed

the defendant’s expert in an employee’s suit against his employer for

damages related to a work injury to present pre and post-injury work-life

expectancy testimony “based on widely accepted work-life tables


       8The Jones Act, which provides a federal cause of action for seamen against
their employers, incorporates the remedial provisions of FELA. See 46 U.S.C. § 30104.
                                        18

published by the Department of Labor and his expertise in vocational

rehabilitation”); Weil v. Seltzer, 873 F.2d 1453, 1465 (D.C. Cir. 1989)

(noting a defendant, in response to a plaintiff’s “self-serving testimony

. . . concerning the anticipated work-life expectancy of the decedent,”

may “produce his own expert to offer a contrary opinion on [the

decedent’s] work-life expectancy or he may offer the Department of Labor

statistics into evidence and request the expert to base his opinion on the

work-life expectancy contained in the Department of Labor’s table”);

Finch v. Hercules, Inc., 941 F. Supp. 1395, 1416 (D. Del. 1996) (holding
in a wrongful termination case that the defendant could present

statistical evidence as to when its average employee retires); but see

Burrows v. Union Pac. R.R., 218 S.W.3d 527, 540 (Mo. Ct. App. 2007)

(holding that the trial court did not abuse its discretion in disallowing

testimony about the average retirement age of Union Pacific machine

operators because it “would not prove or disprove when Plaintiff himself

planned to retire”).9

       On our review, we agree with the line drawn by the Maryland Court

of Appeals in Pitts. Eichel does not extend so far as to bar the railroad

from introducing evidence as to when railroad workers with certain levels

of experience typically retire. These data are several steps removed from

the disability benefits that the Supreme Court ruled inadmissible in

Eichel. Furthermore, the entire point of Eichel is to prevent unfairness.

Yet it is basically unfair for the railroad to be “defenseless,” Pitts, 61 A.3d

at 792, in the face of an employee’s claim as to when he or she would

have retired, particularly when the employee appears to be relying on

       9The  Burrows court upheld exclusion of the testimony because it viewed it as
irrelevant, not because Eichel or the collateral source rule compelled this result.
Burrows, 218 S.W.3d at 540.
                                          19

jurors’ familiarity with a different retirement system than the one in

which the employee actually participates.              Dr. Ward’s report, which

incorporated Giza’s claimed retirement age of sixty-six, indicated that

this age is when an individual can retire on full Social Security benefits.

But Giza does not participate in Social Security.10

       Giza argues with some force that juries know how to connect the

dots, so a jury reading BNSF’s exhibits could reach the conclusion that

railroad employees like Giza are able to retire and start receiving

pensions at age sixty. Nonetheless, we agree with the Maryland Court of
Appeals that the alternative could leave the railroad without a realistic

way to challenge the testimony of the plaintiff and the plaintiff’s damages

expert.     See id.   Again, most jurors participate in the Social Security

system, where full benefits come later in life than age sixty, and in the

absence of other evidence would likely assume that Giza’s assertion he

planned to retire at age sixty-six was entirely typical and unexceptional—

even though it isn’t.

       No one disputes that when Giza would have retired if he hadn’t

been injured is highly relevant to his claim for lost earning capacity. And

as Dr. Ward himself conceded in his testimony, to determine when

someone is likely to retire, we would want to look at when other people

retire.11



       10Further,   Dr. Ward’s report cited to a publication of the Railroad Retirement
Board for the unremarkable proposition that age sixty-six is the age at which an
individual may receive an unreduced benefit at retirement under the Social Security
Act. This could be viewed as an example of misdirection, reinforcing the mistaken
inference that railroad employees receive Social Security benefits as their retirement.
       11Dr.
           Ward himself used actuarial tables to determine how long Giza would have
worked in the home in order to compute the economic value of his lost household
services.
                                            20

       For the foregoing reasons, we hold Eichel does not bar the

introduction of evidence as to when railroad employees with thirty years

of service typically retire so long as the evidence does not directly or

indirectly refer to retirement benefits. We doubt a jury will be improperly

influenced by learning of the typical retirement age, when details

concerning the pension are not disclosed. On the other hand, keeping

this information from jurors could create a false impression while leaving

no practical way for the railroad to challenge a plaintiff’s claimed

anticipated retirement date.
       C. Deciding the Appeal.              Giza argues that even if the district

court’s reading of Eichel was incorrect, we should not reverse.                     Thus,

Giza urges that the district court’s ruling excluding the statistical

evidence was based upon Iowa Rule of Evidence 5.403, not Eichel, and

that BNSF failed to address that rule in its opening brief, thereby waiving

the argument.        We disagree.       The district court viewed the statistical

evidence as covered by Eichel. During trial, the court said “the case law

doesn’t allow” receipt of the statistical evidence.12 This does not prevent

us from upholding the district court’s exclusion of the evidence on an

alternative ground. See DeVoss v. State, 648 N.W.2d 56, 62 (Iowa 2002).

Nonetheless, when we perform the rule 5.403 balancing ourselves, we do


       12Giza argues that the district court here performed a rule 5.403 weighing of
unfair prejudice against probative value because it cited to the opinion of the Maryland
intermediate appellate court in CSX Transportation, Inc. v. Pitts, 38 A.3d 445 (Md. Ct.
Spec. App. 2012). The Maryland Court of Appeals later overruled the Maryland
intermediate appellate court’s reasoning after the trial of this case. See Pitts, 61 A.3d at
791–92. The intermediate Maryland court had held that the Maryland trial court “did
not abuse its discretion by preventing cross-examination of Dr. Hamilton as to the
railroad employee’s average age of retirement.” Pitts, 38 A.3d at 471. However, there is
no indication that the district court in this case did any weighing itself. Citing to an
appellate decision from another jurisdiction in support of one’s ruling is not the same
as conducting an independent weighing.
                                      21

not believe the danger of unfair prejudice substantially outweighs the

probative value of the statistics. See Iowa R. Evid. 5.403 (stating that

“relevant[] evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice”); State v. Werts, 677

N.W.2d 734, 737–38 (Iowa 2004) (indicating the appellate court should

weigh prejudicial effect against probative value where the district court

did not do so and rule 5.403 is raised as an alternative ground for

sustaining the district court’s ruling).

      The statistics give a norm as a frame of reference and allow the
plaintiff to argue to the jury why he or she would deviate from that norm.

Just as we would allow statistical data to show the duration of a typical

professional football player’s or the typical judge’s career, data that show

the duration of a typical railroader’s career are also relevant.        The

numbers take on added significance given that railroad employees with

thirty years’ experience usually retire at an earlier age than the

benchmarks that would be familiar to jurors from their common

experience—i.e., the Medicare eligibility age or the age when a retiree is

eligible to draw full Social Security benefits.

      Meanwhile, for reasons we have already outlined, we believe the

danger of unfair prejudice is relatively low. These statistics do not reveal

why railroaders with considerable work experience most often retire at

age sixty. Thus, for unfair prejudice to occur, the jury would first have to

guess that railroad employees are eligible to receive a retirement pension

at age sixty. But even then, for there to be prejudice, a jury would have

to believe the plaintiff’s testimony as to when he or she plans to retire

and disbelieve the railroad while at the same time being willing to
penalize the plaintiff by making an unauthorized deduction for

retirement benefits without having any idea of the amount of those
                                           22

benefits. This chain of events, while possible, does not appear to be a

significant threat to the fairness of the trial.13

       Giza does not claim that any error in excluding the statistical

evidence would have been harmless.               Giza was earning approximately

$100,000 per year at the time of the accident.                  Dr. Ward calculated

economic damages of about $755,000 based on over seven years of lost

wages. As Giza’s counsel said more than once in closing argument, Giza

lost out on the last seven or eight years of his work career. Dr. Ward

agreed that if sixty rather than sixty-six were the correct retirement age
for Giza, the $755,000 would need to be reduced by several hundred

thousand dollars. In the end, the jury awarded $1,250,000, including

pain and suffering.         Because BNSF was improperly precluded from

presenting evidence regarding when railroad employees actually do retire,

we reverse and remand for a new trial.

       We add a caveat.            While our ruling concerns the statistical

evidence, and only the statistical evidence, a plaintiff may open the door

to further exploration of the subject of retirement by the position he or

she takes at trial.          For example, if a plaintiff testifies on direct

examination or the plaintiff’s counsel argues that the plaintiff would have


       13Giza  also argues that the statistical table covering 2004 to 2006 was
inadmissible because the data were stale. According to defendant’s expert, that table
came from a Railroad Retirement Board report that was prepared as of December 31,
2007. The data appear to be generally consistent with those in the other table, whose
admissibility Giza does not contest on this ground. We believe Giza’s staleness
arguments concerning the 2004–2006 table go to weight and not admissibility.
       Additionally, in a footnote to his brief, Giza argues that the 2003–2008 table is
inadmissible because of a lack of a foundation. Here too, we disagree. The table was
admitted during BNSF’s offer of proof, and Giza did not raise an objection based on lack
of foundation, which presumably could have been cured at the time. In any event,
Erwin’s report lays foundation for the exhibit and that report itself was admitted as part
of the offer of proof. Of course, we are not precluding Giza from asserting a
foundational objection to the exhibit on retrial.
                                    23

kept working until a particular age because of the money she was

making, then it may be appropriate for the defendant to show that the

plaintiff could make money by not working.       See, e.g., Gladden v. P.

Henderson & Co., 385 F.2d 480, 483–84 (3d Cir. 1967) (holding that

notwithstanding Eichel, a defendant may bring up disability payments

when the plaintiff claims on direct examination that he only went back to

work due to financial distress).

      Because we are not convinced that most of BNSF’s remaining

appellate issues will arise on remand, we will not address them.
However, we do not believe the district court committed reversible error

in refusing to give BNSF’s proposed instruction 36.       Adhering to the

Eighth Circuit’s model jury instructions for FELA cases, the district court

instructed the jury as follows:

             You must award the plaintiff such sum as you find will
      fairly and justly compensate the plaintiff for any damages
      you find the plaintiff sustained and is reasonably certain to
      sustain in the future as a direct result of the occurrence
      mentioned in the evidence.

See 8th Cir. Civil Jury Instr. § 7.06A (2011) (“F.E.L.A. Damages—Injury

to Employee”).   The district court also supplemented that instruction

with the following: “[T]hroughout your deliberations you must not engage
in any speculation, guess, or conjecture and you must not award any

damages by way of punishment or through sympathy.”             The Eighth

Circuit’s manual says this language “may also be added.” Id. n.7.

      BNSF argues these instructions never told the jury that Giza bore

the burden of proof on damages. However, we believe this concept was

adequately conveyed by the instructions taken as a whole. See Keisau v.

Bantz, 686 N.W.2d 164, 175 (Iowa 2004) (“The jury must consider the
instructions as a whole, and if the instructions do not mislead the jury,
                                   24

there is no reversible error.”).    The district court gave a general

instruction that “[w]henever a party must prove something they must do

so by the preponderance of the evidence.”         The court also gave a

mitigation of damages instruction that made it clear the defendant bore

the burden of proof on that issue—the implication being that the plaintiff

bore the burden of proof on other matters. Additionally, Giza’s counsel

repeatedly advised the jury during closing argument that Giza had the

burden of proof on the remaining damage issues (while asserting Giza

had met that burden). “If the concept behind the requested instruction
is embodied in other instructions, the district court may properly reject

the proposed instruction.” Crawford v. Yotty, 828 N.W.2d 295, 298 (Iowa

2013) (internal quotation marks omitted). We find no error.

      IV. Conclusion.

      For the foregoing reasons, we reverse the judgment of the district

court and remand for a new trial.       The new trial, like the first trial,

should be limited to the question of damages.

      REVERSED AND REMANDED.

      All justices concur except Hecht, J., who takes no part.
