dissenting in part.
I concur with Parts I and 11(A) of the court’s opinion and join in the finding of liability against both defendants. However, I respectfully dissent from the court’s affir-mance in Part 11(B) of the district court’s decision to let stand the jury’s award of $2,300,000.00. I think the award is grossly excessive, and I would remand for a new trial on damages, unless Frazier accepted the entry of a remittitur reducing his award to $1,000,000.00, which in my opinion is at the very high end of what a reasonable jury could justify under the circumstances of this case.
Frazier, a forty-nine-year-old railroad car-man, experienced ruptured disks at the L4/L5 and L5/S1 levels of his lower back. He had those two disks removed in a procedure known as a diskectomy. His surgery produced good results. Frazier is not totally disabled. In fact, the permanent disability he now claims is relatively minor. He has not required further medical treatment nor prescription pain medication for his back injuries. He is in good physical health, and his intelligence quotient (“IQ”) is in the top one-third of the population. Although Frazier cannot return to his former job as a railroad carman due to weight-lifting restrictions, he is fully capable of work in other areas. Since the accident, he has worked briefly as a security guard. He has declined Norfolk’s offer of vocational rehabilitation and possible employment. Of his $2,300,000.00 award, almost seventy-five percent, or $1,750,000.00, involved damages for disability and past and future pain and suffering. This is clearly excessive.
In Joan W. v. City of Chicago, 771 F.2d 1020 (7th Cir.1985), we stated that “where the award is not rationally proportionate to awards assessed in similar cases for injuries that are no different in kind from those suffered by the plaintiff, then the award is excessive.... ” Id. at 1025 (emphasis added). Notwithstanding the court’s descriptions of the FELA cases it considers similar to Frazier’s (Majority Op. at 926), those cases indicate that the injuries, when specified, differ in kind from those Frazier suffered. Of the cases the court cites, only Mendoza v. Norfolk & Western Railway Co., No. 862-4824 (St. Louis City, Mo.Cir.Ct. July 2, 1990), involves injuries similar in kind to the ones Frazier sustained. The jury awarded Mendoza $2,275,000.00 for herniated disks at L4/L5 and L5/S1, which were not operated on at the time of trial. (Frazier ruptured the same disks and had an operation.) Mendoza was unable to return to railroad work and entered vocational rehabilitation to gain other employment.
Although there are some similarities between Mendoza’s and Frazier’s injuries, their award amounts, and their ability to work, the major difference between their situations is their ages. That difference illustrates the excessiveness of Frazier’s award. When injured, Mendoza was twenty-eight years old, whereas Frazier was forty-nine years old. All things being equal (which they are not), Mendoza will have to endure his disability and any future pain and suffering twenty-one years longer than will Frazier, and should both men be unable to find suitable employment, Mendoza will be unemployed for a much longer period of time than will Frazier. As such, I conclude that the jury’s award to Frazier, of an amount approximately the same as one given a considerably younger man with injuries similar in kind, is grossly excessive.
As the court points out, Norfolk and Post Express have submitted several cases with jury awards lower than the award Frazier received. Based on those cases, the cases the court cites, which include Frazier’s submissions, and the evidence as a whole, I *928conclude that the maximum appropriate award for Frazier’s injuries is $1,000,000.00.
Accordingly, I respectfully dissent from the court’s affirmance of the district court’s decision to allow the award of damages to stand. I would conclude that the district court abused its discretion, and would remand for a new trial on damages, unless Frazier accepted the entry of a remittitur lowering his award to $1,000,000.00.