Lewy v. Southern Pacific Transp. Co.

Decision Date12 September 1986
Docket NumberNo. 84-6160,84-6160
Parties123 L.R.R.M. (BNA) 2441, 105 Lab.Cas. P 12,157, 1 Indiv.Empl.Rts.Cas. 980, 21 Fed. R. Evid. Serv. 777 Winston B. LEWY, Plaintiff-Appellant, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, Defendant-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Peter Abrahams, Los Angeles, Cal., for plaintiff-appellant.

Ladell Muhlstein, Chase, Rotchford, Drukker & Bogust, Los Angeles, Cal., for defendant-appellee.

Appeal from the United States District Court for the Central District of California.

Before SCHROEDER and FLETCHER, Circuit Judges, and CARROLL, * District Judge.

FLETCHER, Circuit Judge:

The principal issue in this appeal is whether the Federal Employers' Liability Act (FELA), 45 U.S.C. Secs. 51-60 (1982), authorizes a railroad employee who has sustained physical and emotional distress injuries in a railroad collision, to recover damages for the aggravation of those injuries resulting from his subsequent, allegedly wrongful discharge. We conclude that it does not.

Winston Lewy, a Southern Pacific Transportation Company employee, was injured in a collision in the company's Los Angeles switching yard, and subsequently was discharged by Southern Pacific for other reasons. Lewy brought an FELA action against Southern Pacific to recover for the injuries he sustained in the collision and for the aggravation of those injuries resulting from his discharge. He appeals a jury award of $15,000.

Lewy challenges the trial court's exclusion of all evidence relating to his discharge by Southern Pacific. He also claims that the trial court erroneously excluded evidence concerning the bias of one of Southern Pacific's witnesses and claims that its jury instructions were repetitive and slanted against him. We have jurisdiction under 28 U.S.C. Sec. 1291 (1982). We conclude that the Railway Labor Act (RLA), 45 U.S.C. Secs. 151-188 (1982), precludes courts from awarding the type of discharge-related damages sought by Lewy, and find his other challenges to be without merit. We therefore affirm.

FACTUAL BACKGROUND

Lewy was injured in March, 1980 when a locomotive he was operating was struck from the rear by a locomotive operated by another Southern Pacific employee. Following the collision, he experienced pain in his head, neck, lower back, and right leg, and was hospitalized for eight days. His back condition appeared to deteriorate over the next year, and he underwent a lumbar laminectomy to remove a portion of his spinal disc tissue in April, 1981. Lewy was hospitalized for two weeks following the surgery. His total medical bills resulting from the accident were $12,665.37.

In August, 1980, when Lewy was convalescing from his original injury, Southern Pacific began to suspect that he was malingering, and ordered him to undergo a physical examination with a company physician. [I]rrespective of what we might think of the merits or of the Claimant's [Lewy's] testimony, we do not pass thereon. Claimant will be reinstated to service with all rights unimpaired, but without pay for time lost as Claimant has yet to be discharged from [his current treating physician's] care.

Lewy refused, and Southern Pacific charged him with insubordination and misrepresenting his physical condition, convened a disciplinary hearing, and discharged him in October, 1980. Lewy appealed his dismissal to the National Railroad Adjustment Board (NRAB). In December, 1981, the NRAB ruled that Southern Pacific had introduced irrelevant evidence at Lewy's disciplinary hearing, and had improperly refused to permit two of his treating physicians to testify. The NRAB ordered Lewy to be reinstated based on these procedural errors, expressly noting that it was not ruling on the merits of his claim:

Lewy's physician gave him permission to return to work in February 1982, but advised that he should avoid prolonged sitting. As a result, Lewy was prevented from returning to his former position as an engineer, and was limited instead to yard service, a lower-paying job. Before returning to work, however, Lewy was required to pass Southern Pacific's standard rules examination, and he failed it a number of times. He returned to work in September, 1982.

At trial, Southern Pacific introduced evidence that the collision in which Lewy was injured was not very severe, that Lewy had a history of back problems prior to the collision, and that Lewy may have been malingering. The engineer operating the other locomotive in the collision testified that the two trains "didn't hit that hard," and that the collision "was just like coupling into a car." Moreover, Southern Pacific elicited testimony that Lewy had injured his back in a 1964 automobile accident, and that that injury left him unable to play tennis, which he had regularly done up to that time, and resulted in his being excused from military service. Lewy attempted in his testimony to minimize the severity of his prior back injury, but he was impeached based upon answers to interrogatories he had provided in his personal injury action arising out of the 1964 accident. His sister, Jere Brown, testified that he had consulted her following the 1964 accident concerning whether he should have back surgery, and had specifically told her that he no longer played tennis and could not serve in the military because of his injury. Furthermore, two of Lewy's treating physicians testified that they doubted his veracity concerning his description of his physical condition and suspected him of malingering.

Lewy sought $117,400 in lost wages and benefits, $236,400 in lost future wages and benefits, and $12,665.37 in medical expenses he had incurred. The jury deliberated for two hours, found for Lewy, but awarded him only $15,000. Lewy contends that the jury's low verdict was attributable to three errors by the trial court: (1) its exclusion of evidence relating to his discharge; (2) its exclusion of evidence demonstrating his sister's bias against him; and (3) its slanted jury instructions, which, he claims, overemphasized the possibility that he was contributorily negligent for the collision.

A. Exclusion of Evidence Relating to Lewy's Discharge

At trial, Lewy testified that following his accident, he developed a fear and anxiety that he would be unable to work and would remain unemployed. He sought to introduce testimony that his "wrongful discharge" by Southern Pacific aggravated this anxiety and emotional anguish, and claimed he was entitled to recover damages for this aggravation of his preexisting emotional condition, based upon the Second Circuit's decision in Sharkey v. Penn Central Transportation Co., 493 F.2d 685 (2d Cir.1974), which authorized the award of such damages. Southern Pacific filed a pretrial motion to preclude Lewy from introducing any evidence or testimony regarding his The original district judge in this action denied Southern Pacific's motion, and ruled, based upon Sharkey, that although the NRAB had "exclusive jurisdiction" to "determine whether [Lewy's] discharge was proper," it had already determined that Lewy was wrongfully discharged, albeit for purely procedural reasons. The judge concluded, therefore, that Lewy was entitled to recover damages under the FELA "for aggravation of [his preexisting emotional] condition due to [the] improper discharge."

discharge, reinstatement, or resulting damages, maintaining that any claims relating to Lewy's discharge had to be brought under the grievance and arbitral procedures established by the RLA, and therefore, evidence concerning Lewy's discharge would be irrelevant in his FELA action.

A different judge presided at trial. Although he felt compelled to follow this pretrial ruling, he expressed serious doubts about applying Sharkey' § principles in Lewy's action. The trial judge noted the extremely complex, almost metaphysical proximate-cause analysis that the jury would be required to undertake under Sharkey: they would be required, in effect, to distinguish between the "new" emotional distress caused exclusively by Lewy's discharge, for which they could not award damages, and the "aggravation" of Lewy's preexisting emotional distress and anxiety, for which they could award damages. Moreover, the trial judge noted that under Sharkey, before awarding any discharge-related damages, the jury would also be required to determine whether or not Lewy had "caused" his own discharge by refusing to see Southern Pacific's company physician.

The trial judge ultimately determined that allowing Lewy to advance his aggravation theory would result in "undue delay" and a "confusion of the issues." He therefore excluded evidence relating to Lewy's discharge under Federal Rule of Evidence 403, and ruled that Lewy could present evidence relating to his emotional distress "attributable only to the accident" itself. Lewy challenges this ruling as an abuse of discretion. 1

B. Exclusion of Evidence Relating to Jere Brown's Bias

Jere Brown's testimony concerning the severity of Lewy's 1964 back injury was damaging to Lewy's case. Lewy attempted to impeach Brown by demonstrating that she was biased against him, because he had had her removed as executrix of their father's estate in 1977, supposedly for embezzlement. Lewy's counsel cross-examined Brown extensively about her removal as executrix and the embezzlement charges against her, and even raised the possibility that Brown had contacted Southern Pacific herself and volunteered to testify against Lewy. Lewy testified that there was "bad blood" between him and his sister, that she was "removed as executrix" of their father's estate "because of her inability to handle th[e] estate," and that he was "put in as executor, to investigate her dealings," which "caused a flare-up in [their] relationship."

The trial judge excluded certain testimony under Rule 403 on the "side issue[s]" of whether Brown actually embezzled funds from...

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