{ "id": 4278097, "name": "OSBY DIXON, Plaintiff-Appellant, v. UNION PACIFIC RAILROAD COMPANY, Defendant-Appellee", "name_abbreviation": "Dixon v. Union Pacific Railroad", "decision_date": "2008-06-09", "docket_number": "No. 1-07-2123", "first_page": "453", "last_page": "473", "citations": [ { "type": "official", "cite": "383 Ill. App. 3d 453" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "288 Ill. App. 3d 329", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1596970 ], "year": 1997, "pin_cites": [ { "parenthetical": "upheld jury award of nothing for disfigurement and loss of normal life, although jury awarded damages for medical expenses and pain and suffering" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/288/0329-01" ] }, { "cite": "297 Ill. App. 3d 635", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 910211 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "636", "parenthetical": "upheld jury award of nothing for disability, lost salary, and pain and suffering, although jury awarded damages for medical expenses and aggravation of preexisting condition" }, { "page": "637-38", "parenthetical": "jury was entitled to discount much of plaintiff's testimony where \"plaintiffs treating doctors *** found no objective signs of injury that correlated with her various complaints of pain\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/297/0635-01" ] }, { "cite": "283 Ill. App. 3d 714", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 182772 ], "year": 1996, "pin_cites": [ { "page": "718", "parenthetical": "upheld jury award of nothing for disability, although jury awarded damages for medical expenses, and pain and suffering" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/283/0714-01" ] }, { "cite": "157 Ill. 2d 304", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 778577 ], "weight": 3, "year": 1993, "pin_cites": [ { "page": "315" }, { "page": "315" }, { "page": "315" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/157/0304-01" ] }, { "cite": "172 Ill. 2d 438", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 55977 ], "weight": 11, "year": 1996, "pin_cites": [ { "page": "449" }, { "page": "447" }, { "page": "447" }, { "page": "447" }, { "page": "447" }, { "page": "447-48", "parenthetical": "upheld jury award of nothing for pain and suffering, although jury awarded damages for pain-related medical expenses" }, { "page": "447" }, { "page": "448-49", "parenthetical": "discussing pain and suffering" }, { "page": "449", "parenthetical": "when evaluating a damages award, \"the trial court should consider the distinction between subjective complaints of injury and objective symptoms\"" }, { "page": "448", "parenthetical": "\"The jury determines the credibility of witnesses and the weight to be given their testimony\"" }, { "page": "447" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/172/0438-01" ] }, { "cite": "56 F.3d 1226", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11339635 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "1232" } ], "opinion_index": 0, "case_paths": [ "/f3d/56/1226-01" ] }, { "cite": "199 Ill. 2d 483", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 58949 ], "weight": 4, "year": 2002, "pin_cites": [ { "page": "504", "parenthetical": "jury may award damages for increased risk of future injury, even when future injury is \"not reasonably certain to occur\"" }, { "page": "489" }, { "page": "508" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/199/0483-01" ] }, { "cite": "175 Ill. 2d 98", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 295761 ], "year": 1997, "pin_cites": [ { "page": "112", "parenthetical": "jury has \"leeway\" to award damages for future medical expenses, even when the expenses are not \"specifically itemized in the testimony\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/175/0098-01" ] }, { "cite": "204 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 609707 ], "weight": 7, "year": 2003, "pin_cites": [ { "page": "27" }, { "page": "27", "parenthetical": "evidence may be slight" }, { "page": "36" }, { "page": "37" }, { "page": "36-37" }, { "page": "36", "parenthetical": "\"Illinois courts have repeatedly held that the amount of damages to be assessed is peculiarly a question of fact for the jury to determine ***\"" }, { "page": "37" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/204/0001-01" ] }, { "cite": "185 Ill. 2d 380", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 121957 ], "weight": 6, "year": 1998, "pin_cites": [ { "page": "406" }, { "page": "406" }, { "page": "406" }, { "page": "406-07" }, { "page": "407" }, { "page": "408" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/185/0380-01" ] }, { "cite": "362 Ill. App. 3d 1019", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4261185 ], "weight": 4, "year": 2005, "pin_cites": [ { "page": "1025-26" }, { "page": "1026" }, { "page": "1021", "parenthetical": "upheld jury award of nothing for loss of normal life, although jury awarded damages for medical expenses and pain and suffering" }, { "page": "1029", "parenthetical": "where evidence is \"merely based on the subjective testimony of the plaintiff, a jury is free to disbelieve it\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/362/1019-01" ] }, { "cite": "162 Ill. App. 3d 926", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3509446 ], "weight": 11, "year": 1987, "pin_cites": [ { "page": "932" }, { "page": "932-34" }, { "page": "932-34" }, { "page": "934" }, { "page": "932" }, { "page": "932-33" }, { "page": "932-33" }, { "page": "932-33" }, { "page": "932" }, { "page": "933" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/162/0926-01" ] }, { "cite": "312 Ill. App. 3d 11", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 411657 ], "weight": 15, "year": 2000, "pin_cites": [ { "page": "28" }, { "page": "25" }, { "page": "30" }, { "page": "33" }, { "page": "33", "parenthetical": "the \"some evidence\" standard described in LaFever is a \"modest\" threshold" }, { "page": "30-33" }, { "page": "30-33" }, { "page": "31" }, { "page": "31" }, { "page": "30-31" }, { "page": "29" }, { "page": "29-30" }, { "page": "30" }, { "page": "30" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/312/0011-01" ] }, { "cite": "49 U.S.C. \u00a720301", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 2000, "pin_cites": [ { "page": "et seq." } ], "opinion_index": 0 }, { "cite": "45 U.S.C. \u00a751", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "year": 2000, "pin_cites": [ { "page": "et seq." } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1555, "char_count": 52937, "ocr_confidence": 0.813, "pagerank": { "raw": 8.065252668938462e-08, "percentile": 0.46663261062710604 }, "sha256": "934772343a544c37a354aa603922c1d3fb46b0d0ae223742f77fabc663d0e746", "simhash": "1:bf8fd036360de439", "word_count": 8734 }, "last_updated": "2023-07-14T19:46:05.228492+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "OSBY DIXON, Plaintiff-Appellant, v. UNION PACIFIC RAILROAD COMPANY, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE ROBERT E. GORDON\ndelivered the opinion of the court:\nPlaintiff Osby Dixon sued his employer, defendant Union Pacific Railroad Company, under the Federal Employers\u2019 Liability Act (FELA) (45 U.S.C. \u00a751 et seq. (2000)), after a handrail on a train car came loose and plaintiff fell several feet to the tracks below. After a trial, a jury awarded plaintiff $131,318.66 for pain and suffering and $54,500 for economic loss, but nothing for disability. Plaintiff appeals claiming that the trial court erred by giving a jury instruction concerning plaintiff\u2019s failure to mitigate damages and that the awards for economic loss and disability are against the manifest weight of the evidence. For the reasons discussed below, we reverse and remand for a new trial solely on the issue of damages for disability.\nBACKGROUND\nOn November 11, 2001, while working in defendant\u2019s railyard as a freight conductor, plaintiff walked along a platform on the side of a stationary train car, holding on to the handrail. The handrail came loose, and he fell. Plaintiff\u2019s first amended complaint, filed November 8, 2006, alleged one count, that defendant railroad violated the FELA by negligently failing to provide plaintiff railroad employee with a safe place to work. Specifically, plaintiff alleged that defendant \u201c[v]iolated 49 USCA Sec. 20302 (a)(2), commonly known as the Safety Appliance Act, when it used or allowed to be used on its railroad line a railroad car (vehicle) which was equipped with an unsecured handhold.\u201d\nAt trial, the witnesses included: plaintiff and his wife; Dr. Mark Nikkei, his orthopaedic surgeon; Nancy Milnes, a licensed clinical social worker who treated plaintiff for psychological issues; Dr. Malcolm Cohen, an economics expert retained by plaintiff; Salvadore Gomez, the yard manager at the time of plaintiff\u2019s accident; Thomas Lally, the railroad employee who investigated the accident for the railroad; and Michael Haggerty, the railroad employee who inspected the car after the accident.\nPlaintiff\u2019s first witness, Nancy Milnes, did not appear in person. Instead, her videotaped evidence deposition was played for the jury. Nancy Milnes, a licensed clinical social worker, testified that she first saw plaintiff on March 13, 2002. His complaints included panic attacks, sleeplessness, depression and hopelessness that he would never recover.\nConcerning the accident, plaintiff told Milnes that he was alone in the switching yard, setting up trains to couple with each other, when he climbed onto a train to check the connection and the handrail dislodged, causing him to fall back onto the next track. He told her that he hit his back, that he was unsure if he could move and that he was afraid that another train would come down the track. Plaintiff told Milnes that although his arm, back and leg were hurt, he was able to get up and call his supervisor and that he was then taken to Elmhurst Hospital.\nAt the initial evaluation, Milnes concluded that plaintiff was \u201cvery depressed\u201d and that his depression was caused by \u201cthe combination of the original trauma, plus the repeated trauma of medical procedures and the financial and physical limitations of being hurt.\u201d Based on plaintiff\u2019s reports of flashbacks, Milnes also concluded that plaintiff had post-traumatic stress disorder from the accident. Milnes testified that he had reported to her that railroad tracks were located in back of his house and, at night, he would wake when he heard the trains and feel panicked. Milnes also concluded that plaintiff posed a moderate risk for suicide and found this directly related to the accident. On December 9, 2002, Milnes completed a disability determination report for the social security administration, in which she concluded that plaintiff was unable for work return. Milnes testified that plaintiff was still exhibiting suicidal tendencies when Milnes last saw him in March 2004.\nMilnes testified that she was aware that plaintiff was also under the care of a psychiatrist, Dr. Moolayil, who had prescribed medication. Although Milnes left messages for Dr. Moolayil, he never returned her calls and she never spoke with him. Milnes testified that she saw plaintiff approximately 11 times in 2002. Then there was over a year, from September 26, 2002, until November 9, 2003, when she did not see plaintiff. During this time, Milnes tried to keep in contact by telephone. When Milnes saw plaintiff again on November 9, 2003, he reported panic attacks, sleep problems and pain in his ankle and back. Milnes testified that she last saw plaintiff on March 30, 2004.\nOn cross-examination, Milnes testified that she saw plaintiff three times in 2004: once in February and twice in March. She testified that plaintiff did not have a specific plan to commit suicide and that she never spoke to any of plaintiff\u2019s other treaters about his ability to work. She testified that her conclusion that plaintiff was not able to work was not a permanent conclusion and that she did not know how plaintiff was feeling today.\nNext, plaintiff took the stand and testified that he was 41 years old and lived in South Holland, Illinois, with his wife and 10-year-old son. He started working for defendant in April 1998 as a janitor. In January 2001, he began training to become a conductor, which lasted six to eight weeks. After taking a test, he became a freight conductor, which plaintiff described as someone who \u201chooks up trains.\u201d Plaintiff stated that in addition to wages, defendant provided \u201cgood benefits\u201d such as health insurance, vacations and \u201cbonus checks sometimes.\u201d Although he was certified as a conductor in March or April 2001, he did not receive full conductor\u2019s pay; that would come with seniority. Plaintiff testified that he \u201cloved\u201d working for the railroad.\nPlaintiff testified that on November 12, the day of the accident, he had started his shift on November 11 at 11 p.m., in the Proviso East yard, which is in the northwest suburbs of Chicago. Plaintiff testified that the Proviso yard is what is known as a \u201chump yard.\u201d Plaintiff explained that a hump yard is in the shape of a bowl; that at the top of the bowl, railroad workers will send a car down by itself; that in the middle of the bowl, there are 30 different tracks into which the car may be sent, in order to make up a train; and that the car is directed into a particular track by setting certain switches.\nPlaintiff testified that his assignment that night was to put together trains by pulling cars from different tracks. The car he fell off was a covered hopper car. To turn the wheel that operates the hand brake, he had to climb up a ladder on the side of the car and stand on a platform on the side of the car, holding on to a handrail. At approximately 2 a.m. on November 12, when the hopper car was on track 28, plaintiff climbed up the ladder, stood on the brake platform, turned the brake wheel, and then walked to the right (or south) side of the car, in order to dismount. Track 29 was on the right side of the hopper car. As he was walking toward the right side, he was holding on to the handrail. As he was turning the corner and lowering his foot to the step, the handrail slid out, and he lost his balance and fell. He came down on his right foot and then \u201cflew back\u201d onto the next track, track 29. His wrist and back hit track 29.\nPlaintiff testified that when he hit the track, he was reminded of a time when he was 12 or 13, and he was in a swimming pool, and he saw \u201cdeath pass.\u201d Then he \u201ccrawled\u201d off that track and used the radio on his person to notify the yard master that he was hurt. Another railroad employee took him to the hospital, where X-rays were taken of his right wrist and he received pain medication. After being released from the hospital, he returned to the railyard, where he received a drug test. The following day, November 13, plaintiff went on his own to Oak Lawn Medical Center, where Dr. Nikkei, an orthopaedic surgeon, prescribed pain medication and physical therapy.\nPlaintiff testified that, eventually, Dr. Nikkei recommended arthroscopic surgery on plaintiffs right ankle, which was performed in February 2002 and followed by more physical therapy. (Later medical testimony illustrated that it was diagnosed as a \u201costeochondral lesion\u201d in his right ankle.) Plaintiff testified that he did not feel any significant improvement, so Dr. Nikkei recommended additional surgery, which was performed in July 2002. Plaintiffs understanding of the surgery was that Dr. Nikkei was removing bone from plaintiffs right knee to place in his right ankle and placing bolts or screws in his ankle. As a result of the surgery, plaintiff developed an infection. Plaintiff was then readmitted to the hospital for three or four days. After his second release from the hospital, plaintiff was \u201csent *** home with the IV\u201d and took medication for two months.\nPlaintiff testified that after the wound healed, he resumed physical therapy. When Dr. Nikkei removed the cast, plaintiff stopped using crutches and started using a cane, which he still uses on a daily basis. Plaintiff hoped that after the second surgery, he could return to work, but that did not happen. Dr. Nikkei prescribed the pain medication Vi-codin, for approximately two years, and also prescribed arthritis medication. Plaintiff testified that he still experiences pain in his right wrist and lower back.\nPlaintiff next testified concerning his emotional condition following the accident. Since the accident, he has been able to sleep for only three or four hours a night and he has nightmares \u201cjust reenacting of the train.\u201d During the first two months after the accident, he was sad, cried \u201ca lot\u201d and became \u201cmad with my family for no reason.\u201d At his wife\u2019s suggestion, he sought psychiatric counseling. He received Dr. Moolayil\u2019s name \u201cfrom Union Pacific insurance, they gave me a listing.\u201d Plaintiff first saw Dr. Moolayil on December 12, 2001. In 2002, he received medication for stress and sleeplessness, including Zoloft. Plaintiff testified that he was still in Dr. Moolayil\u2019s care and that he last saw Dr. Moolayil approximately five weeks prior to trial. At first, plaintiff saw Dr. Moolayil twice a week, and then over time it was reduced to twice a month. Dr. Moolayil did not testify at trial.\nPlaintiff testified that on two occasions he saw Mr. Carpenter, a licensed clinical social worker, who worked with Dr. Moolayil. After Mr. Carpenter passed away, plaintiff began seeing, in March 2002, another social worker, Nancy Milnes, whose name plaintiff received \u201cfrom the railroad.\u201d When plaintiff did not have appointments with Milnes, she called on the telephone once or twice a week. Also, when he stopped seeing Milnes, the telephone calls continued for a period of time.\nPlaintiff testified that he still had nightmares and flashbacks. About the flashbacks, plaintiff testified: \u201cI\u2019m having them now, sir, when you show me [a photograph] of the car. It happens a lot.\u201d Plaintiff testified that there were train tracks \u201cin my backyard\u201d and the trains come through \u201call day, all night.\u201d Plaintiff testified that when a train goes by, \u201cthat\u2019s when a lot of flashbacking happens.\u201d Before the accident, he and his wife had an active social life, going to barbecues and movies. Now, he does not \u201clike doing nothing,\u201d he becomes angry at his wife \u201cfor no reason\u201d and he cannot play sports with his son.\nPlaintiff testified that, physically, he cannot do any of the household chores that he used to perform, such as mowing the lawn. Plaintiff testified that he \u201cloved cleaning, helping my wife around\u201d the house. Plaintiff testified that he has not worked a day since the accident, that when he walks he feels \u201cfeet stabbing, burning sensation,\u201d and that when he stops walking, he still experiences \u201cthrobbing, swelling.\u201d Plaintiff testified that he had pain in his back \u201call the time\u201d and that the medication he took for back pain did not work. He also experienced stiffness in his wrist. Plaintiff testified that he had not had a pain-free day or night since the accident.\nOn cross-examination, plaintiff testified that prior to working for the railroad, he had jobs with Blue Island Plastics for $9 per hour, with Browing-Ferris for $16 per hour, and the Country Club Hills Park District for $10 per hour. In September 2000, he was working with the Union Pacific Railroad and earning $12 per hour. In January 2001, when he started working as a conductor, he was paid by the job, instead of by the hour.\nOn cross-examination, plaintiff testified that he had contact with Chris McGinnis and Jack Mason, who worked in vocational rehabilitation. Plaintiff met \u201cmore than once\u201d with McGinnis, who came to plaintiffs home. Plaintiff was not sure whether they were hired by the railroad, but plaintiff knew that he did not contact or pay for them.\nPlaintiffs next witness was Salvatore Gomez, the manager of yard operations at the Proviso yard at the time of plaintiffs accident. Gomez testified that prior to the accident, he had not noticed any physical or psychological problems with plaintiff. Plaintiffs next witness was Dr. Malcolm Cohen, an economist who received his doctorate from Massachusetts Institute of Technology in economics and specialized in labor economics. At plaintiffs request, he analyzed plaintiffs economic loss from the accident. In performing this analysis, he considered the wages of three railroad employees who were more senior to plaintiff and three who were less senior. Cohen explained that he used this information to form \u201cthe best prediction\u201d of what plaintiff would have earned. In calculating the loss, Cohen testified that he was \u201cassuming that he\u2019s totally disabled so that there\u2019s no future compensation.\u201d Cohen estimated the loss twice: once with a retirement age of 62, and once with a retirement age of 65.\nAssuming a retirement age of 62, Cohen estimated the present value of his economic loss at $1,479,179; and assuming a retirement age of 65, Cohen estimated the present value of loss at $1,655,932.\nCohen testified that for the year 2001, he used plaintiffs \u201cannualized wage.\u201d For the years 2002 through 2004, Cohen used the actual \u201caverage of [plaintiffs] peers.\u201d Starting in 2005, Cohen used the average of the years 2002 and 2004 and adjusted 3% per year for inflation. From these \u201cestimated wage[s],\u201d Cohen then subtracted \u201call the things that [plaintiff] would have had to pay had he been working,\u201d such as taxes, to arrive at \u201cnet wages.\u201d To the net wages, Cohen then added the value of employment benefits. However, Cohen subtracted medical benefits, because plaintiff was still receiving them from the railroad. Cohen also added the value of pension benefits, calculated at \u201ca number the Railroad Retirement Board provides, times the number of years of service, times his average salary.\u201d\nOn cross-examination, Cohen testified that, in his calculations, he assumed that plaintiff was totally disabled, based on information received from a secretary in plaintiffs law firm. Cohen testified that he did not have any conversations with plaintiff. Cohen also testified that the minimum wage in the United States is $5.15 per hour and that in his calculations, he had assumed that plaintiff would never earn money again in his lifetime. For the year 2001, plaintiffs annualized wages were $33,889, which were approximately $16 per hour. For the year 2002, Cohen assumed that plaintiffs wages would increase 69% to $57,420, based on the average of his coworkers. Cohen also testified that light- and medium-duty jobs exist both with the railroad and throughout the United States economy, and that those jobs can pay minimum wage. Cohen admitted that his calculations were only as good as his assumptions.\nPlaintiffs next witness was Thomas Lally, who is employed by defendant as a terminal coordinator. Lally explained that a terminal coordinator sits in a tower and acts like an \u201cair traffic controller but for box cars, trains.\u201d As part of his duties, he is involved in the investigation of personal injuries sustained by defendant\u2019s employees at the Proviso yard.\nLally testified that on November 12, 2001, he received a telephone call at his home at approximately 3:45 a.m. notifying him that there had been an injury in the Proviso yard. Lally eventually learned that the injured employee was plaintiff. After Lally arrived at the yard sometime later that morning, he observed the handhold that he was told was involved in the accident and noticed that \u201cit was broken.\u201d Lally testified that the handhold should not have been \u201cplug weld[ed]\u201d; it should have been \u201cbolted.\u201d After observing the photograph of the handhold presented by counsel at trial, Lally testified that the bolts had been removed and \u201csomebody had plug welded that.\u201d\nLally testified that on November 12, he ordered the car foreman, Mike Haggerty, to perform a more detailed inspection of the car. The inspection included filling out a mechanical inspection form. Lally testified that he also spoke with plaintiff, who stated \u201cwhen he was climbing off, the handhold gave away, and he fell off the car, and it scared the sh\u2014 out of him.\u201d Plaintiff told Lally that he was scared when he fell on track 29 \u201cbecause he thought it was a live track.\u201d Lally testified that plaintiff had \u201ckind of like a sprained ankle\u201d and that Lally met plaintiff at the hospital as plaintiff was being discharged and that plaintiff stated: \u201cWell, I got a little pain.\u201d\nLally completed two injury reports for the railroad within a day or two. One report stated: \u201cWhile getting off a freight car, handhold slid out of bracket causing him to fall from car.\u201d Lally testified that, in Lally\u2019s presence and on the day of the accident, plaintiff completed a personal injury report, required by the railroad from any injured employee. Lally signed as a witness to plaintiffs signature on the report. This report stated: \u201cWhile getting off the car I was holding on the grab bar. As I was swinging my body around car, the grab bar slid out and that forced me to the ground.\u201d The report stated that the accident affected his wrist, back and ankle.\nPlaintiffs next witness was Michael Haggerty, who was a car supervisor with the railroad at the time of plaintiffs accident. On November 12, 2001, he was asked by the manager of mechanical maintenance to inspect a car that had been involved in an accident and to complete an accident report form. His report stated that the handhold had \u201cminor bends,\u201d that the \u201cend securement[s]\u201d had been welded, and that the \u201cend weld[s]\u201d had broken. Haggerty also testified that the distance from the platform to the ground was approximately 40 inches.\nNext plaintiff played the videotaped evidence deposition of Dr. Mark Nikkei, plaintiffs orthopaedic surgeon. Dr. Nikkei testified that he attended an osteopathic medical school, was licensed to practice medicine in Illinois and was board certified in orthopaedic surgery, which he explained was \u201cthe specialty that involves conservative operative techniques and the musculoskeletal system.\u201d Dr. Nikkei testified that when he first examined plaintiff on November 13, 2001, plaintiff provided a history that he fell, twisted his right ankle and hit his right wrist and back on the railroad track.\nDr. Nikkei testified that he found that plaintiffs right wrist had a preexisting scaphoid fracture. Dr. Nikkei testified, also with respect to plaintiffs right wrist, that plaintiff had been \u201cpreviously diagnosed on 4/10/01 with deeper veins which we treated with a splint and antiin-flammatories as well as therapy.\u201d\nDr. Nikkei testified that on December 4, 2001, after reviewing an \u201cMRI\u201d and \u201cCT scan,\u201d he concluded that injuries resulting from the accident included bone bruises to plaintiffs right wrist and an \u201costeo-chondral lesion\u201d on his right ankle. On December 4, Dr. Nikkei recommended physical therapy. On January 8, 2002, Dr. Nikkei felt on palpitation a \u201csignificant paraspinal spasm\u201d in plaintiffs lower back during a clinical examination, and on January 30, 2002, plaintiffs complaints of pain included his right wrist, right ankle, shoulder and back. On February 25, 2002, Dr. Nikkei performed anthroscopic surgery on plaintiffs right ankle, and he examined plaintiff again on March 6 and March 20.\nDr. Nikkei testified that on March 20, 2002, Dr. Nikkei took additional X-rays of plaintiffs right wrist due to plaintiffs complaints of pain and found the exam was \u201cessentially unremarkable.\u201d On April 20, 2002, Dr. Nikkei concluded that plaintiffs \u201cpain was improving to the point where I felt we could start weight bearing him and continuing his [physical] therapy.\u201d On May 8, 2002, after concluding that plaintiff was \u201cweight-bearing *** up to 50 percent,\u201d Dr. Nikkei \u201ccontinued weight-bearing increasing.\u201d On June 5, 2002, plaintiffs weight-bearing had decreased from the last visit, so Dr. Nikkei recommended a second surgery.\nDr. Nikkei testified that on July 15, 2002, he performed a second surgery on plaintiffs right ankle, during which Dr. Nikkei broke the bone with a saw, in order to expose \u201cthe defect,\u201d which was the lesion. Then Dr. Nikkei testified that he \u201cactually core[d] out\u201d the lesion. Then he took a piece of cartilage from plaintiffs right knee \u201cthat fit[ ] into that hole\u201d and \u201creplace[d] the cartilage that was lost as a result of the injury.\u201d Then he repaired the broken bone \u201cwith two screws *** placed in the bone across the fracture site.\u201d\nDr. Nikkei testified that on August 15, 2002, plaintiff complained of fever and chills. Plaintiff had a wound on his right ankle, with redness around the wound, due to a postoperative infection. Dr. Nikkei admitted plaintiff back into the hospital and the infection was successfully treated during a four-day hospital stay. During office visits on August 21 and 28, Dr. Nikkei kept plaintiffs ankle non-weight-bearing. By September 18, 2002, when Dr. Nikkei next examined plaintiff, physical therapy had begun. On October 9, during the next office examination, plaintiff was \u201c25 percent\u201d weight-bearing. By October 31, plaintiffs weight-bearing had increased to 75%. On November 26, 2002, Dr. Nikkei concluded that plaintiffs wound had healed completely and his X-rays \u201cshowed good healing.\u201d\nDr. Nikkei testified that on January 21, 2003, plaintiff denied an \u201cantalgic gait or limping\u201d and stated that he felt \u201c \u2018pretty good,\u2019 \u201d other than \u201csome swelling laterally, [and] some decreased range of motion\u201d in his right ankle. After plaintiff\u2019s February 20, 2003, examination, Dr. Nikkei concluded that plaintiff \u201ccould be released from therapy,\u201d \u201cplaced on a home exercise program,\u201d and \u201cfollow up with [Dr. Nikkei] as needed.\u201d Dr. Nikkei did not expect significant changes after this date and found that plaintiff was not able to return to work as a freight conductor.\nDr. Nikkei testified that on July 24, 2003, plaintiff returned \u201ccomplaining primarily of the incision line.\u201d Dr. Nikkei \u201cfelt that his pain was primarily due to the hardware site\u201d and discussed the possibility of removing it. Dr. Nikkei testified that X-rays taken on August 24, 2003, showed \u201creally good healing.\u201d On August 27, 2003, plaintiff returned with complaints of ankle pain, chills and a fever. The exam revealed no signs of infection and \u201cminimal, if any, swelling.\u201d Dr. Nikkei prescribed an anti-inflammatory medication and physical therapy. Approximately six months later, during the next visit on March 18, 2004, plaintiff complained of tenderness over the incision line. Dr. Nikkei again prescribed anti-inflammatory and pain medication. On June 29, 2004, plaintiff complained about his right elbow, for which Dr. Nikkei gave him an armband and prescribed additional anti-inflammatory medication.\nDr. Nikkei testified that on June 29, 2004, he told plaintiff to return in a month. Plaintiff did not return until January 13, 2005, almost seven months later, complaining of \u201ca fever\u201d in the area of the incision. Dr. Nikkei testified that \u201cagain\u201d the X-rays were \u201cunremarkable\u201d and the physical exam showed no signs of infection,\u201d and \u201cagain\u201d Dr. Nikkei discussed the possibility of removing the screws in plaintiff\u2019s ankle. Dr. Nikkei again prescribed an anti-inflammatory medication and physical therapy.\nDr. Nikkei testified that the next time he examined plaintiff was over a year later, on March 8, 2006. Plaintiff complained of pain in his right ankle and lower back. Dr. Nikkei prescribed an anti-inflammatory medication and physical therapy. Seven months later, on October 17, 2006, plaintiff returned with complaints of right ankle and lower back pain. Concluding his direct examination, Dr. Nikkei testified that he did not expect any substantial improvement and that plaintiff was permanently disabled from his job as a railroad freight conductor.\nOn cross-examination, Dr. Nikkei testified that plaintiff\u2019s most significant injury was the lesion on his right ankle and that plaintiff had told Dr. Nikkei of a prior ankle injury. Dr. Nikkei testified that his \u201cexpectation\u201d was that the second surgery in July 2002 would \u201cget him back to work.\u201d The expected outcome included that plaintiff would be walking without a cane. On October 9, 2002, Dr. Nikkei noted that plaintiff was \u201cdoing quite well,\u201d his wound was healing well and plaintiff was not having any pain with weight-bearing. During that examination, plaintiff informed the doctor that he was suing the railroad. In November 2002, plaintiff was full weight-bearing and his wound had healed completely. During a visit on January 21, 2003, plaintiff told Dr. Nikkei that he had no interest in returning to work for the railroad.\nOn cross, Dr. Nikkei testified that he ordered a functional capacity evaluation (FCE) that was done on February 14, 2003. The purpose of the FCE was to determine at what level plaintiff could return to work. The report concluded that plaintiffs reports of pain were inconsistent with his behavior and movement patterns, and that the inconsistency indicated pain and disability out of proportion to the actual impairment. Dr. Nikkei testified that it was his opinion, within a reasonable degree of medical certainty, that plaintiff could work so long as his employment had limits consistent with the findings in the FCE. The FCE indicated that plaintiff was capable of a \u201cmedium\u201d level job. Dr. Nikkei could not find any objective findings that confirmed plaintiffs subjective complaints of pain.\nPlaintiffs last witness was plaintiffs wife, Stacey Dixon, who substantially corroborated plaintiffs testimony.\nOn March 22, 2007, after plaintiff rested, defendant moved for a directed verdict on the issue of plaintiffs future wage losses, which was denied, and plaintiff moved for \u201ca directed finding\u201d on defendant\u2019s violation of the Safety Appliance Act (49 U.S.C. \u00a720301 et seq. (2000)), which was granted. Plaintiff also moved for \u201ca directed finding\u201d on defendant\u2019s affirmative defense of failure to mitigate damages. Relying specifically on the First District cases of Mikus v. Norfolk & Western Ry. Co., 312 Ill. App. 3d 11 (2000), and Brown v. Chicago & North Western Transportation Co., 162 Ill. App. 3d 926 (1987), the trial court orally ruled that there was \u201csufficient\u201d evidence that the mitigation issue \u201cshould go to the jury.\u201d\nAlso on March 22, 2007, there was an extensive discussion among the trial court and counsel concerning the proper wording of the jury instruction on mitigation. At the end of the day, the trial court asked counsel to try \u201cto come up with something\u201d and e-mail it to the court. The next day, March 23, at approximately 9:30 a.m., the trial court noted for the record:\n\u201cTHE COURT: On the record. We\u2019ve had informal discussion regarding the Court\u2019s submitted instruction on mitigation of damages that is a hybrid of Brown, Norfolk cases, the Bender\u2019s forms and the Federal Jury Practice Rules and both sides have agreed. Am I correct? Speak up.\nMR. FARINA (plaintiffs counsel): Yes. Yes, Your Honor.\nMR. CUSHING (defense counsel): Yes, Judge.\u201d\nAt trial, during closing argument, both parties made significant concessions. Defendant conceded: (1) that the handrail came loose; (2) that plaintiff fell; and (3) that plaintiff was not physically able to resume his job as a freight railroad conductor. During closing, plaintiff did not dispute that he had made no attempts to look for work. Although plaintiff\u2019s counsel observed that defendant \u201cscream[ed] to high heaven\u201d that plaintiff \u201cdidn\u2019t even try to get a new job,\u201d plaintiffs counsel did not claim that he had looked. Instead, plaintiff claimed that \u201cthe interplay between the physical and psychological injuries\u201d left plaintiff totally disabled.\nDuring closing, plaintiff asked the jury for a total of over $2 million: $1,567,535 for lost wages; $450,000 for pain and suffering; and $375,000 for disability. By contrast, defendant asked the jury to return: $51,000 for lost wages, and $150,000 to $200,000 for pain and suffering.\nAs part of its jury instructions, the trial court informed the jury that it had already ruled that defendant violated the Safety Appliance Act. The trial court instructed the jury to find for plaintiff if it found that plaintiff had satisfied his burden of proving: (1) that he was injured during his employment with the railroad; and (2) that his injury resulted in whole or in part from defendant\u2019s violation of the Safety Appliance Act. If the jury found for plaintiff, then it had to determine the amount of damages that would compensate him for the following elements if these elements were \u201cproved by the evidence to have resulted from the conduct of the defendant.\u201d Those elements were: (1) disability; (2) pain and suffering; and (3) lost earnings and benefits.\nWith respect to mitigation, the trial court instructed the jury \u201cif you find that the defendant proved that the plaintiff within the limitation of any disability he may have sustained failed to resume gainful employment as soon as it was reasonably available under the circumstances shown in the evidence, then you should reduce the amount of the plaintiff\u2019s damages by the amount the plaintiff could have reasonably realized if the plaintiff had resumed gainful employment.\u201d\nOn March 23, 2007, the jury returned a verdict for plaintiff and awarded $0 for disability, $131,318.66 for pain and suffering, and $54,500 for lost earnings. On April 20, 2007, plaintiff filed a posttrial motion requesting a new trial solely on damages, on the grounds that the trial court erred by giving a jury instruction concerning mitigation and that the verdict awarding nothing for disability and $54,500 for lost earning was against the manifest weight of the evidence. On July 19, 2007, the trial court orally stated that it denied the \u201cmotion for new trial based on the record of the evidence, the arguments made, and the law, and *** incorporating said evidence and all the rulings I made at the trial.\u201d The written order, dated July 19, 2007, stated that: \u201cPlaintiff\u2019s Post-Trial Motion is denied for the reasons stated on the record. This is a final and appealable order.\u201d\nOn July 30, 2007, plaintiff filed a notice of appeal asking this court: (1) to reverse the judgment entered on March 23, 2007, upon the verdict; (2) to reverse the order, dated July 19, 2007, denying plaintiff\u2019s posttrial motion; and (3) to remand for a new trial on damages only or, in the alternative, to remand for a new trial on all issues.\nANALYSIS\nOn appeal, plaintiff claims: (1) that the trial court erred by giving a jury instruction concerning plaintiff\u2019s alleged failure to mitigate damages; and (2) that the jury verdict awarding nothing for disability and $54,500 for lost earnings was against the manifest weight of the evidence.\nMitigation Instruction\nUnder the Federal Employers\u2019 Liability Act (FELA), plaintiff had a duty to mitigate damages and to secure gainful employment within a reasonable time after his injury. Mikus, 312 Ill. App. 3d at 28 (discussing FELA (45 U.S.C. \u00a7\u00a751 through 60 (2000)).\nIn general, a reviewing court will reverse a trial court\u2019s ruling about a jury instruction only if the trial court committed a clear abuse of its discretion. Stift v. Lizzadro, 362 Ill. App. 3d 1019, 1025-26 (2005). The question of whether the evidence at trial raised an issue, thus requiring a particular jury instruction, is within the sound discretion of the trial court. LaFever v. Kemlite Co., 185 Ill. 2d 380, 406 (1998). Specifically, with respect to mitigation under the FELA, this court has held that a trial court\u2019s decision whether to give a mitigation instruction is subject to an abuse-of-discretion standard. Mikus, 312 Ill. App. 3d at 25.\nIn general, a party has a right to have a trial court instruct the jury about any theory supported by the record. LaFever, 185 Ill. 2d at 406; Snelson v. Kamm, 204 Ill. 2d 1, 27 (2003). Specifically, with respect to mitigation in an FELA case, this court has held that a defendant is entitled to a jury instruction about mitigation if there is evidence in the record to support it. Brown, 162 Ill. App. 3d at 932; Mikus, 312 Ill. App. 3d at 30.\n\u201c \u2018 \u201cAll that is required to justify the giving of an instruction is that there be some evidence in the record to justify the theory of the instruction.\u201d \u2019 [Citations.]\u201d LaFever, 185 Ill. 2d at 406; Stift, 362 Ill. App. 3d at 1026; Mikus, 312 Ill. App. 3d at 33. The trial court does not have to be persuaded by the evidence or think that the jury will be. LaFever, 185 Ill. 2d at 406-07; Snelson, 204 Ill. 2d at 27 (evidence may be slight). \u201cThe quantum of proof necessary to prevail on a claim is different *** from the measure of evidence needed merely to send an issue to the jury.\u201d (Emphasis in original.) LaFever, 185 Ill. 2d at 407. While the \u201csome evidence\u201d threshold is low, the evidence cannot be untrustworthy and must be \u201cgrounded in more than mere possibilities.\u201d LaFever, 185 Ill. 2d at 408; Mikus, 312 Ill. App. 3d at 33 (the \u201csome evidence\u201d standard described in LaFever is a \u201cmodest\u201d threshold).\nThus, to receive a jury instruction on the mitigation issue, defendant had the burden of pointing to some evidence in the record to support its mitigation theory. On March 19 and 20, 2007, during pretrial argument on plaintiffs motion in limine to bar the mitigation issue at trial, defense counsel pointed to the following evidence: the report of plaintiffs own treating physician stating that plaintiff could perform a \u201cmedium\u201d duty job. Defendant\u2019s counsel added that he intended to ask plaintiffs economist what the minimum wage was and how much a person would earn at a minimum wage job. After argument, the trial court denied plaintiffs motion.\nOn March 22, the trial court revisited the issue again, at the close of evidence, when plaintiff moved for \u201ca directed finding\u201d on the mitigation issue. Plaintiffs counsel conceded that defendant had \u201coffered some evidence that plaintiff is capable of working somewhere else.\u201d However, plaintiff argued that this \u201csome evidence\u201d was insufficient because defendant failed to offer evidence concerning \u201cwhat those jobs are\u201d or \u201cwhat those jobs pay.\u201d\nIn response, defense counsel pointed to the following evidence: (1) trial testimony by plaintiff\u2019s treating physician and orthopaedic surgeon, Dr. Mark Nikkei, that plaintiff could work at a medium-level job; (2) trial testimony by Dr. Nikkei that plaintiff admitted that he had no interest in returning to work for the railroad; (3) plaintiffs trial testimony that he had not worked since the day of the accident; (4) trial testimony by Dr. Malcolm Cohen, an economic expert retained by plaintiff, that the minimum wage in the United States is $5.15 per hour and that Dr. Cohen is aware that there are medium- and light-duty jobs throughout the United States economy and that these jobs can pay minimum wage; and (5) trial testimony by Nancy Milnes, a licensed clinical social worker who treated plaintiff for psychological issues, that her opinion that plaintiff could not work was formed when she last saw him in March 2004 and that this was not a permanent opinion.\nThe trial court did not abuse its discretion when, relying on both the above-cited evidence and this court\u2019s opinions in Brown and Mikus, it decided to give a mitigation instruction. Brown, 162 Ill. App. 3d at 932-34; Mikus, 312 Ill. App. 3d at 30-33. In Brown and Mikus, this court reviewed the same issue that was before the trial court in this case, namely, whether to give a mitigation instruction in an FELA case. Brown, 162 Ill. App. 3d at 932-34; Mikus, 312 Ill. App. 3d at 30-33. In both Brown and Mikus, this court reversed because the trial court failed to give a mitigation instruction. Brown, 162 Ill. App. 3d at 934; Mikus, 312 Ill. App. 3d at 31. In Brown, we reversed because the record contained evidence \u201cfrom which a jury might reasonably conclude that [plaintiff] Brown was indifferent to finding alternative employment.\u201d Brown, 162 Ill. App. 3d at 932.\nAs in Brown, the record before us contains evidence from which a jury might reasonably conclude that plaintiff was indifferent to finding alternative employment. The record in the case at bar included: plaintiff\u2019s own testimony that he had not worked since the accident; testimony from his own treating physician that plaintiff was capable of light- to medium-duty work but had no interest in returning to work for the railroad; and no evidence that plaintiff had tried to find any work. From this record, a jury had sufficient evidence to conclude, as it had in the Brown case, that plaintiff was indifferent to finding alternative employment.\nIn Mikus, this court also reversed because of a trial court\u2019s failure to give a mitigation instruction. Mikus, 312 Ill. App. 3d at 31. The record in Mikus justified a mitigation instruction, where the evidence included: plaintiff\u2019s testimony that he had not worked or sought work since the accident and had not sought treatment in the two years prior to trial; and medical testimony that plaintiff could resume employment with certain lifting and movement restrictions. Mikus, 312 Ill. App. 3d at 30-31. Similarly, in the case at bar, plaintiff has not worked since the accident, even though his treating physician concluded several years prior to trial that he could work in a medium-level job.\nOn appeal, plaintiff tries to distinguish both Brown and Mikus. Plaintiff tries to distinguish Brown, because in Brown, plaintiff refused to cooperate with defendant\u2019s efforts to provide rehabilitation and retraining. Brown, 162 Ill. App. 3d at 932-33. However, in Brown, the thing that required the mitigation instruction was plaintiff\u2019s indifference to his duty to mitigate. Brown, 162 Ill. App. 3d at 932-33. Lack of cooperation is just one way in which a plaintiff can manifest an indifference to his duty to mitigate; it is not the only way.\nPlaintiff tries to distinguish Mikus, because in Mikus, defendant offered plaintiff another job. Mikus, 312 Ill. App. 3d at 29. However, the trial court in Mikus excluded evidence of defendant\u2019s job offer. Mikus, 312 Ill. App. 3d at 29-30. Thus, when this court on appeal reviewed the trial court\u2019s decision not to give a mitigation instruction, we analyzed the trial record as it stood \u2014 without the evidence of the job offer. Mikus, 312 Ill. App. 3d at 30. We held that, even though the trial court erroneously excluded evidence of defendant\u2019s offer and rehabilitation efforts, the \u201cother evidence in the record\u201d still required a mitigation instruction. Mikus, 312 Ill. App. 3d at 30. Thus, plaintiffs attempt to distinguish Mikus based on the job offer is disingenuous.\nAt oral argument before the trial court, plaintiff argued that the evidence cited by defendant was insufficient for a mitigation instruction, because defendant did not offer evidence about \u201cspecific\u201d alternative employment. Plaintiffs attorney stated: \u201cThey didn\u2019t mention one specific single job that anyone admitted the plaintiff was qualified to do, let alone whether it was full or part-time, let alone what benefits that job had, let alone what that job paid.\u201d\nThis same argument was rejected by this court in Brown, 162 Ill. App. 3d at 932-33. Like the plaintiff in our case, the plaintiff in Brown, also an injured railroad employee, claimed that the record did not justify a mitigation instruction, because defendant railroad did not \u201cproduce any evidence of available employment that Brown had the ability to perform.\u201d Brown, 162 Ill. App. 3d at 932. In Brown, we rejected this argument that, in order to obtain a mitigation instruction, a defendant was required to produce evidence of \u201cother jobs available to [plaintiff].\u201d Brown, 162 Ill. App. 3d at 933. Thus, in the case before us, the lack of evidence about specific, available jobs did not bar a mitigation instruction. Cf. Richardson v. Chapman, 175 Ill. 2d 98, 112 (1997) (jury has \u201cleeway\u201d to award damages for future medical expenses, even when the expenses are not \u201cspecifically itemized in the testimony\u201d); Dillon v. Evanston Hospital, 199 Ill. 2d 483, 504 (2002) (jury may award damages for increased risk of future injury, even when future injury is \u201cnot reasonably certain to occur\u201d).\nOn appeal, in support of this argument, plaintiff cites the Tenth Circuit case of Wilson v. Union Pacific R.R. Co., 56 F.3d 1226 (10th Cir. 1995). In Wilson, the Tenth Circuit held that a mitigation instruction was not required where there was no evidence that plaintiff \u201cwas physically able to look for work or that appropriate jobs existed.\u201d Wilson, 56 F.3d at 1232. By contrast, in the case at bar, there was evidence both that plaintiff was physically able to perform light- to medium-level jobs and that such jobs existed.\nIn sum, we cannot find that the trial court abused its discretion in giving a mitigation instruction when it relied on this court\u2019s prior case law and the evidence in the record cited by the defendant.\nJury Verdict\nOn appeal, plaintiff seeks a new trial solely on damages, claiming that the jury\u2019s verdict of $54,500 for economic loss and $0 for disability was against the m\u00e1nifest weight of the evidence. Plaintiff asserted this same claim in a posttrial motion that the trial court denied.\nA reviewing court will reverse a trial court\u2019s ruling on a post-trial motion for a new trial only if the trial court abused its discretion. Snover v. McGraw, 172 Ill. 2d 438, 449 (1996); Snelson, 204 Ill. 2d at 36. Our supreme court has held that a court can upset a jury\u2019s award of damages only if it finds that: (1) the jury ignored a proven element of damages or (2) the verdict resulted from passion or prejudice or (3) the award bore no reasonable relationship to the loss. Snover, 172 Ill. 2d at 447, quoting Gill v. Foster, 157 Ill. 2d 304, 315 (1993); Snelson, 204 Ill. 2d at 37. Our supreme court has emphasized that a jury\u2019s award of damages is entitled to substantial deference by the court. Snover, 172 Ill. 2d at 447; Snelson, 204 Ill. 2d at 36-37. The determination of damages is a question of fact, not of law, and thus within the discretion of the jury, not the court. Snelson, 204 Ill. 2d at 36 (\u201cIllinois courts have repeatedly held that the amount of damages to be assessed is peculiarly a question of fact for the jury to determine ***\u201d).\nPlaintiff asks us to reverse because: (1) the zero award for disability ignored \u201c \u2018a proven element of damages,\u2019 \u201d namely, the physical disability that defendant conceded prevents plaintiff from returning to work at his old job as a freight conductor; and (2) the award for economic loss bore \u201c \u2018no reasonable relationship to the loss,\u2019 \u201d because defendant\u2019s evidence of plaintiff\u2019s failure to mitigate was based on speculation and conjecture. Snover, 172 Ill. 2d at 447, quoting Gill, 157 Ill. 2d at 315.\nZero Award for Disability\nWith respect to plaintiff\u2019s first claim, defendant conceded in its closing argument that plaintiff could not resume his prior employment as a freight railroad conductor:\n\u201cThere is no dispute in this case that Dr. Nikkei, his treater, has said, Mr. Dixon, you cannot go back to work as a conductor. We don\u2019t dispute it. That\u2019s the facts, that\u2019s the truth. I mean Dr. Nikkei testified to it. He\u2019s his treater. Because they have to do heavy lifting, they have to be on uneven ballast. They have to do a number of things that Dr. Nikkei did not believe would be appropriate for Mr. Dixon to do based on his medical training. There\u2019s no dispute in this case.\u201d\nSince defendant thus conceded some level of physical disability, the issue for the jury was what were the appropriate damages for the level of disability that the jury found.\nAs noted above, we can overturn the jury\u2019s award only if the jury ignored an element of damages, acted out of passion or prejudice, or made an award not reasonably related to loss. Snover, 172 Ill. 2d at 447. First, the fact that the jury chose to award zero for disability while awarding something for pain, suffering and economic loss is not proof, by itself, that the jury ignored that element. White v. Lueth, 283 Ill. App. 3d 714, 718 (1996) (upheld jury award of nothing for disability, although jury awarded damages for medical expenses, and pain and suffering). See also Snover, 172 Ill. 2d at 447-48 (upheld jury award of nothing for pain and suffering, although jury awarded damages for pain-related medical expenses); Stift, 362 Ill. App. 3d at 1021 (upheld jury award of nothing for loss of normal life, although jury awarded damages for medical expenses and pain and suffering); Orava v. Plunkett Furniture Co., 297 Ill. App. 3d 635, 636 (1998) (upheld jury award of nothing for disability, lost salary, and pain and suffering, although jury awarded damages for medical expenses and aggravation of preexisting condition); Zuder v. Gibson, 288 Ill. App. 3d 329 (1997) (upheld jury award of nothing for disfigurement and loss of normal life, although jury awarded damages for medical expenses and pain and suffering). Second, plaintiff does not claim that the jury acted out of passion or prejudice.\nThus, the issue with respect to the zero award comes down to the third prong of the test: was it \u201creasonably related\u201d to the physical disability that prevented plaintiff from returning to work at his old job? Snover, 172 Ill. 2d at 447. When evaluating reasonable relationship, we must keep in mind that disability is separate and distinct from either lost earnings or pain and suffering. Unlike economic damages, such as loss of earnings or medical expenses, a disability award is \u201cnot as readily as calculable in money and jurors must draw on their real life experiences in making an award.\u201d Snover, 172 Ill. 2d at 448-49 (discussing pain and suffering).\nThe record permitted the jury to conclude that plaintiff was not totally disabled currently and would not be in the future. The uncontroverted testimony of plaintiffs treating physician was that plaintiff had the ability to perform light- to medium-level jobs. Based on a functional capacity evaluation (FCE) completed in February 2003, Dr. Nikkei testified that plaintiffs reports of pain were inconsistent with his behavior and movement patterns. The FCE concluded that plaintiffs reports of pain and disability were \u201cout of proportion to the impairment.\u201d Dr. Nikkei testified that the expected outcome of this type of surgery, considering plaintiffs age and type of injury, was that plaintiff would be working full time without complaints of pain. Although plaintiff was walking with a cane, Dr. Nikkei testified that this also was not an expected outcome. Dr. Nikkei was not aware of any objective findings or test results that confirmed plaintiffs subjective complaints of pain. Snover, 172 Ill. 2d at 449 (when evaluating a damages award, \u201cthe trial court should consider the distinction between subjective complaints of injury and objective symptoms\u201d); Orava, 297 Ill. App. 3d at 637-38 (jury was entitled to discount much of plaintiff\u2019s testimony where \u201cplaintiffs treating doctors *** found no objective signs of injury that correlated with her various complaints of pain\u201d).\nFrom Dr. Nikkei\u2019s testimony, the jury was free to draw reasonable inferences about plaintiffs physical ability to perform tasks in his daily life, both currently and in the future. Although both plaintiff and his wife testified about the restrictions in plaintiffs normal life, the jury was free to make its own credibility determinations and reject or accept their testimony. Stift, 362 Ill. App. 3d at 1029 (where evidence is \u201cmerely based on the subjective testimony of the plaintiff, a jury is free to disbelieve it\u201d); Snover, 172 Ill. 2d at 448 (\u201cThe jury determines the credibility of witnesses and the weight to be given their testimony\u201d).\nHowever, the uncontroverted evidence was that plaintiff was disabled for a certain period of time after the accident. Both plaintiff and his wife testified about limitations occurring during the period after the accident on November 11, 2001, the surgeries on February 25 and July 15, 2002, and the four-day hospital stay starting on August 15, 2002. Dr. Nikkei testified about periods of time after each of these events during which he kept plaintiffs right ankle not \u201cweight-bearing.\u201d Dr. Nikkei testified that it was not until November 2002 that he observed complete healing of the wound that had led to plaintiffs hospital stay. It was also not until November 2002 that Dr. Nikkei found plaintiffs right ankle to be fully weight-bearing. On December 9, 2002, Ms. Milnes, plaintiffs therapist, completed a disability determination report for the social security administration in which she concluded that plaintiff was unable to return to work.\nDuring closing argument, defendant argued that February 14, 2003, the date of the FCE, marked the day that plaintiff was no longer disabled for work return. Even if one used the February 2003 benchmark sought by defendant, that still results in a period of disability of over a year. Thus, the jury verdict awarding nothing for disability ignored a proven element of damages and must be vacated. Snover, 172 Ill. 2d at 447, quoting Gill v. Foster, 157 Ill. 2d 304, 315 (1993); Snelson, 204 Ill. 2d at 37.\nIn remanding for a new trial on just one element of damages, we follow the precedent set by our supreme court in Dillon v. Evanston Hospital, 199 Ill. 2d 483 (2002). In Dillon, the jury awarded plaintiff $1.5 million for past pain and suffering, $1.5 million for future pain and suffering, and $500,000 for the increased risk of future injuries. Dillon, 199 Ill. 2d at 489. Finding that the jury instruction on increased risk was not proper, our supreme court \u201cremand[edj the cause to the trial court for a new trial solely on that element of damages.\u201d Dillon, 199 Ill. 2d at 508. Similarly, we remand for a new trial solely on the disability element of damages.\nAward for Economic Loss\nNext, plaintiff seeks reversal of the $54,500 award for lost earnings solely because the \u201cevidence on plaintiff\u2019s failure to mitigate was based on improper speculation and conjecture.\u201d As already discussed above in this opinion\u2019s section on mitigation, the issue of mitigation was properly submitted to the jury. The evidence of plaintiff s failure to mitigate was based on more than speculation and conjecture. It included testimony by plaintiffs doctor that he could work at a medium-level job and testimony by plaintiffs economic expert that medium- to light-duty jobs are available in the United States and that these jobs can pay minimum wage, which is $5.15 an hour. Thus, plaintiffs argument is not persuasive.\nIn sum, we find that the trial court did not abuse its discretion when it refused to vacate the jury award for economic loss.\nCONCLUSION\nFor the reasons discussed above, we find that the trial court did not abuse its discretion when it decided to give a mitigation instruction or when it refused to vacate the jury award for economic loss. However, we find that the trial court did abuse its discretion when it refused to vacate the jury award with respect to disability. Thus, we remand for a new trial solely on the issue of damages for disability.\nReversed and remanded with instructions.\nCAHILL, EJ, and WOLFSON, J, concur.\nPlaintiff labeled his motions as motions for \u201ca directed finding.\u201d Normally, a directed finding occurs in a bench trial (735 ILCS 5/2 \u2014 1110 (West 2006)), and a directed verdict occurs in a jury trial (735 ILCS 5/2 \u2014 1202 (West 2006)).\nIn closing, defendant\u2019s counsel stated, \u201cSo February 14, Valentine\u2019s Day of \u201903 *** [t]hat\u2019s the point where Mr. Dixon should go start looking for a job.\u201d", "type": "majority", "author": "JUSTICE ROBERT E. GORDON" } ], "attorneys": [ "Hoey & Farina, of Chicago (James L. Farina and Steven P. Garmisa, of counsel), for appellant.", "Thomas W. Cushing, of Union Pacific Railroad Company, of Chicago, for appellee." ], "corrections": "", "head_matter": "OSBY DIXON, Plaintiff-Appellant, v. UNION PACIFIC RAILROAD COMPANY, Defendant-Appellee.\nFirst District (1st Division)\nNo. 1\u201407\u20142123\nOpinion filed June 9, 2008.\nHoey & Farina, of Chicago (James L. Farina and Steven P. Garmisa, of counsel), for appellant.\nThomas W. Cushing, of Union Pacific Railroad Company, of Chicago, for appellee." }, "file_name": "0453-01", "first_page_order": 469, "last_page_order": 489 }