In Meyer v. Union R.R. Co., 2004 PA Super 407, 865 A. 2d 857, 862 (Pa. Super. 2004), the Superior Court of Pennsylvania held that the trial court erred in refusing to charge the jury on the principle of apportionment of damages when the appellee had a preexisting degenerative disc condition. 865 A. 2d at 868-69.
The railroad maintained on appeal that, because its experts testified at trial that the employee's herniated disc injury could have been caused by his preexisting degenerative disc condition, the railroad was entitled to charge the jury on apportionment of damages. Id. at 862.
The court reviewed controlling federal precedent, noting that "while a tortfeasor is subject to liability for the full extent of the injury he caused, the damages should be reduced to reflect the likelihood that the pre-existing vulnerability or condition would eventually have injured the victim notwithstanding the tortfeasor's conduct." Id. at 863.
The court concluded that, in such context, "apportionment clearly is within the ambit of FELA." Id. at 864. Because the jury instruction "did not cover apportionment aside from a reference to comparative negligence and did not discuss the pre-existing condition as a possible cause for the injury," the court concluded that it was constrained to find reversible error for the omission of such "basic and fundamental material" in the jury instruction. Id. at 869.
Having determined that failure to instruct the jury on apportionment in a FELA case may constitute reversible error, we must next determine whether there was sufficient evidence adduced at trial to support appellant's request for an instruction on apportionment of damages. See, e.g., Meyer, 865 A. 2d at 866.
Upon reviewing federal law on apportionment instructions in FELA cases, the court in Meyer concluded that a defendant need only produce "some evidence to support its proposed apportionment instruction" and is "not required to demonstrate an exact percentage" or a "mathematical proportion" representing the likelihood of the causal relationship. Id. at 866-67, 868.