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Yauch v. Southern Pacific Transportation Co.2/29/2000
es contend, however, that it "was entitled to have the jury decide if Yauch could have returned to his former position as an engineer with accommodations, and if not, whether a reasonable person in Yauch's position should have then pursued alternative employment within in light of all the circumstances presented, including job security, location, and duties." Because we agree with that contention, the trial court erred in excluding SP's proffered evidence, thereby depriving it of a substantial federal right. We find the error reversible because we cannot say the same result probably would have occurred had the evidence been admitted. See Schwartz v. Farmers Ins. Co., 166 Ariz. 33, 36, 800 P.2d 20, 23 (App. 1990).
II. Evidence Relating to SP 's Post-Accident Conduct
SP next contends the trial court erred in admitting, over SP's objection, evidence of certain post-accident conduct. The following facts relate to this issue, which we address because it may arise on remand and because it affects Yauch's emotional distress damage claim. See Clauss, 177 Ariz. at 570, 869 P.2d at 1223.
Based on both an independent medical examination SP had obtained and input it had received from another consulting physician, SP informed Yauch by letter in October 1997 that he was "cleared . . . to return to work with no restrictions" and instructed him to make arrangements for that within fifteen days. SP sent another letter to Yauch in March 1998, stating that he had not returned to work or informed SP of why he could not do so and reminding him of the need to protect his seniority. Yauch testified at trial that when he had received that letter, he had " elt like blowing brains out." He further testified that the letters were threatening in nature and had caused him "a great deal of distress." As noted earlier, SP ultimately changed its position and offered Yauch an opportunity to return to his engineer job with accommodations. See .
Five days before trial, after the trial court had excluded all evidence of the Program and of SP 's willingness to accommodate Yauch in his engineer job , SP moved in limine to exclude any evidence of its initial decision to return Yauch to work without restrictions, of its related communications to Yauch, and of his emotional response to those communications. In return, SP offered to withdraw its mitigation-of-damage defense. In opposing the motion, Yauch argued that evidence of SP's post-accident conduct was independently relevant to the emotional distress aspect of his damage claim, regardless of whether SP withdrew its defense. Relying on Whitley v. Southern Pacific Transportation Co., 902 P.2d 1196 (Or. Ct. App. 1995), the trial court agreed with Yauch and denied SP's motion.
In view of the posture of the case at the time of its ruling, the trial court erred in admitting the evidence of SP's post-accident conduct in connection with Yauch's damage claim. Even assuming that the "zone of danger" test does not apply because Yauch did not assert a separate, new claim for negligent infliction of emotional distress, see Gottshall, 512 U.S. at 557-58, 114 S. Ct. at 2411-12, 129 L. Ed. 2d at 449, any emotional distress that resulted from SP's post-accident conduct occurred more than two years after the accident and was, by definition, causally related to that conduct rather than to the accident. Several courts have held that evidence of emotional distress caused by a railroad's post-accident conduct is inadmissible because damages based on such conduct are not recoverable in a FELA action. See, e.g., Lewy v. Southern Pac. Transp. Co., 799 F.2d 1281, 1287 (9th Cir. 1986) (damages claimed for "aggravation, resulting from [plaintiff's] discharge,
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