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Yauch v. Southern Pacific Transportation Co.2/29/2000
REVERSED AND REMANDED
In this personal injury action filed under the Federal Employers' Liability Act (FELA), 45 U.S.C. ยงยง 51 through 60, defendant/appellant Southern Pacific Transportation Company (SP) appeals from a judgment entered on a jury verdict in favor of plaintiff/appellee Dennis Yauch. The case presents issues of first impression in Arizona as to whether the "sheltered employment" doctrine recognized in Arizona's workers' compensation case law applies to FELA actions and whether, based on that doctrine, the trial court properly excluded evidence relating to SP 's mitigation-of-damage defense. We conclude that the court erred in applying that doctrine to exclude evidence of a "Disability Management and Internal Placement Program" (the Program)() and of SP's offer to return Yauch to his job with accommodations. We further conclude that the court erroneously admitted evidence of certain post-accident conduct by SP. Accordingly, we reverse the judgment and remand the case for a new trial.
BACKGROUND
Yauch began working for SP in 1979. In March 1995, Yauch injured his back while in the course and scope of his employment as an SP locomotive engineer when his seat back broke and caused him to fall backward. The injury resulted in several herniated lumbar and thoracic discs. SP admitted liability for any damages proximately caused by the incident. After undergoing back surgery in September 1995, Yauch briefly attempted to work as a yard service engineer for SP in early 1996, but stopped on the advice of his neurosurgeon, Dr. Goldfarb, because it had caused new and additional symptoms. Goldfarb ultimately released Yauch to work in August 1996, with various restrictions. According to Goldfarb, those restrictions "permanently disabled [Yauch] from his job as an engineer."
Yauch was not gainfully employed from early 1996 through the time of trial in January 1999, but instead, returned to school to obtain a degree and to develop marketable skills. Yauch's labor market consultant, Lisa Goldman, testified that he had no transferable skills and could earn only minimum wage with his present education and training. She further testified that, if Yauch were to obtain a four-year degree, he could earn approximately $25,000 a year. Based on that information, Yauch's expert economist, John Buehler, Ph.D., testified that the present value of Yauch's future lost earnings ranged from $1.2 to $1.4 million, depending on whether Yauch obtained a degree. The jury awarded Yauch $1,750,448 in damages.
DISCUSSION
I. Exclusion of Evidence Relating to SP 's Mitigation of Damage Defense
In its answer, SP affirmatively alleged that Yauch had failed to mitigate his damages. In support of that defense, SP disclosed its intent to introduce evidence relating to the Program and Yauch's alleged failure to take advantage of it. Based on SP's discovery disclosures and the pretrial depositions of its former director of disability management, its manager of vocational rehabilitation, and its outside vocational rehabilitation expert, SP contended the Program would have assisted Yauch in obtaining vocational retraining, if necessary, and alternative employment either with or outside the railroad, consistent with Goldfarb's restrictions. SP's evidence suggested that, through the Program, Yauch potentially could have earned significantly more future income than the range Goldman testified to and Buehler adopted. According to SP, Yauch failed to mitigate his future wage loss by failing to participate in the Program.
In their depositions, the SP witnesses testified extensively about how the Program worked, its objectives, its benefit
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