Corrie Burckhard, et al v. BNSF Railway Company, et al

Filing

PER CURIAM OPINION FILED - THE COURT: Lavenski R. Smith, Steven M. Colloton and James E. Gritzner (PUBLISHED), CONCUR BY: Lavenski R. Smith [4448048] [15-2106]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 15-2106
___________________________
Corrie Burckhard, as Personal Representative for the Estate of Todd Burckhard,
Decedent; Maria Mack, as Personal Representative for the Estate of Blaine H.
Mack, Decedent
lllllllllllllllllllll Plaintiffs - Appellees
v.
BNSF Railway Company, a Delaware corporation; CUSA ES, LLC, doing
business as Coach America Crew Transport
lllllllllllllllllllll Defendants - Appellants
____________
Appeal from United States District Court
for the District of North Dakota - Bismarck
____________
Submitted: February 11, 2016
Filed: September 14, 2016
[Published]
____________
Before SMITH and COLLOTON, Circuit Judges, and GRITZNER,1 District
Judge.
____________
PER CURIAM.
1

The Honorable James E. Gritzner, United States District Judge for the
Southern District of Iowa, sitting by designation.

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Plaintiffs, personal representatives of the decedents, sued BNSF Railway
Company (BNSF) for the deaths of two BNSF employees, Todd Burckhard and
Blaine Mack. After rejecting BNSF's motions for judgment as a matter of law
(JMOL), the district court2 submitted the case to a jury. The jury found in favor of
plaintiffs. After the verdict, BNSF moved the district court to alter or amend the
judgment based on an agreement that plaintiffs had entered with BNSF prior to trial.
The district court denied BNSF's motion. On appeal, BNSF argues that the district
court (1) improperly denied its JMOL motions, (2) made several erroneous
evidentiary rulings, and (3) improperly denied its motion to alter or amend the
judgment. We affirm.
I. Background
Under federal law, railway employees can work a maximum of 12 consecutive
hours. When their hours of service expire, railway employees need to be relieved midroute. BNSF contracted with Coach America to provide transportation for some of its
crews. After Burckhard and Mack were relieved by an incoming crew, Coach
America dispatched a driver, Timothy Rennick, to transport them from Oswego,
Montana, to Glasgow, Montana. Rennick collected Burckhard and Mack and began
the approximately 40-mile trip. While en route, a pickup truck driven by a drunk
driver, Ron Keiser, struck their vehicle. The collision killed Burckhard and Mack.
Plaintiffs presented three theories of BNSF's liability at trial: (1) BNSF,
through its agent Rennick, negligently operated the vehicle used to transport
Burckhard and Mack; (2) BNSF and its agent, Coach America, negligently failed to
properly train Rennick; and (3) BNSF, through its agent Rennick, negligently failed
to follow appropriate defensive driving rules. The evidence at trial concerning the

2

The Honorable Daniel L. Hovland, United States District Judge for the District
of North Dakota.
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crash included Rennick's statement taken the day after the crash by a BNSF claims
representative,3 the testimony of the Montana State Trooper that investigated the
accident, and data from Coach America's vehicle's video camera and "black box."
Additional evidence described the training that Coach America provided its drivers
and a BNSF curfew policy.
Rennick told the claims representative that he saw Keiser's truck veer into his
lane about "a minute, maybe two minutes at the most" before the collision. Rennick
responded by pulling into Keiser's lane. Keiser steered his truck back into his lane of
travel and collided with Rennick's vehicle before Rennick could react. The
investigating Montana State Trooper, Sergeant Jeffrey Kent, testified that he found
no signs that Keiser's truck left the paved road or 15-foot shoulder. The video camera
captured the eight seconds before the collision in quarter-second snapshots. The
camera's footage shows that Rennick attempted to avoid Keiser's vehicle by entering
Keiser's lane. According to the "black box," Rennick did not apply braking until
approximately 2.75 seconds before the collision. The "black box" also showed that
the speed of Rennick's vehicle was 51 miles per hour 2.5 seconds before the collision.
Over BNSF's objection, the district court allowed plaintiffs to submit evidence
of a BNSF curfew policy that applied to "deadheading."4 The curfew policy forbids
transportation of railway employees on public roads between 10:00 p.m. and 4:00
a.m. when "deadheading." According to BNSF, one of the reasons for the curfew was
"a commonsense, good-judgment decision of daylight versus night." BNSF explained
3

Rennick passed away before he could be deposed.

4

BNSF describes "deadheading" as a process that involves transporting train
crews over a long distance in order to staff terminals sufficiently. BNSF explains that
this process is planned in advance and is different than the transportation required to
relieve railway employees when their hours of service have expired. Burckhard and
Mack were not transported pursuant to a "deadheading" process but were relieved as
part of a combined service crew.
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that transportation during the night presents additional risks, such as drunk and sleepy
drivers.
BNSF sought to introduce evidence that Burckhard and Mack were given a
choice between transportation by vehicle or train once they were relieved from
service. The district court excluded the evidence to avoid confusing the jury and
because the evidence could potentially inject irrelevant defenses into the trial.
BNSF also sought to have Sergeant Kent testify that he believed that Rennick
did not act negligently and chose the safest course of action given the circumstances.
Plaintiffs objected to the testimony as cumulative. The district court agreed and also
held that it was inappropriate to allow Sergeant Kent to testify as a lay witness on the
ultimate factual issue. The district court allowed Sergeant Kent to testify about factual
information obtained as part of his investigation but prohibited Sergeant Kent from
testifying that Rennick acted reasonably.
At the close of plaintiffs' case, BNSF moved for JMOL pursuant to Federal
Rule of Civil Procedure 50(a). BNSF argued that plaintiffs' first theory of liability
failed because they did not offer sufficient evidence that the risk was reasonably
foreseeable. Likewise, BNSF argued that plaintiffs' third theory of liability failed
because they did not offer expert testimony establishing that BNSF had a duty to
implement a curfew policy covering employees, such as Burckhard and Mack. BNSF
did not renew these motions under Rule 50(b) after the jury verdict.
Following the verdict, BNSF moved the district court to alter or amend the
judgment. Plaintiffs received $600,000 before trial in "Off Track Vehicle Accident
Benefits" as part of BNSF's Collective Bargaining Agreement. BNSF claimed that the
agreement required plaintiffs to apply the $600,000 as an offset to any recovery. The
district court denied the motion because it considered the agreement to be collateral
to the merits of the case. BNSF now appeals.
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II. Discussion
Plaintiffs suit arises under the Federal Employers' Liability Act (FELA), 45
U.S.C. § 51 et seq. FELA renders railroads liable for injuries or deaths of its
employees "resulting in whole or in part from the negligence of [the railroad]." 45
U.S.C. § 51.
A. JMOL Motions
In preverdict motions, BNSF moved the district court to enter JMOL on two
bases: (1) "Plaintiffs failed to offer any evidence that [BNSF] should have or could
have foreseen the conduct of Keiser that cause[d] the harm at issue"; and (2)
"Plaintiffs failed to offer any expert testimony to establish the standard of care
applicable to BNSF for crew calls and train movements." BNSF argues that the
district court erred in denying these JMOL motions. Plaintiffs contend that BNSF
waived these arguments by failing to renew them in a Rule 50(b) motion. BNSF
counters that its arguments involve legal questions and therefore did not need to be
raised in a renewed JMOL.
Typically, we review de novo a district court's denial of a JMOL motion,
viewing the evidence in the light most favorable to the verdict. Hyundai Motor Fin.
Co. v. McKay Motors I, LLC, 574 F.3d 637, 640 (8th Cir. 2009). But we have no basis
to review a party's JMOL motion challenging the sufficiency of the evidence where
the party does not renew its Rule 50(a) motion in a postverdict Rule 50(b) motion.
Ludlow v. BNSF Ry. Co., 788 F.3d 794, 800 (8th Cir. 2015). BNSF argues that legal
questions, on the other hand, are appealable after final judgment even if not renewed
in a postverdict motion. Assuming for the sake of analysis that a purely legal issue
may be raised on appeal without a Rule 50(b) motion, neither of BNSF's two disputed
issues on appeal falls in that category.

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1. Foreseeability
BNSF casts its foreseeability argument as a legal question. It argues that a
drunk driver's actions are not reasonably foreseeable. Therefore, BNSF contends, as
a matter of law, that it did not breach its duty to Burckhard and Mack by failing to
take measures to protect against Keiser's driving.
Although FELA does not incorporate common law "proximate causation,"
reasonable foreseeability of harm is an essential ingredient of FELA negligence. CSX
Transp., Inc. v. McBride, 564 U.S. 685, 702–03 (2011). Reasonable foreseeability
circumscribes the duties a railroad owes its employees. Id. Where a railroad "has no
reasonable ground to anticipate that a particular condition . . . would or might result
in a mishap and injury, then the [railroad] is not required to do anything to correct
[the] condition." Id. at 703 (first and third alteration in original) (quotation and
citation omitted). Provided that negligence is proved, no matter how insignificant its
role in producing the injury, "the manner in which [the injury] occurred" need not be
foreseeable. Id. at 703–04.
At oral argument, BNSF argued that plaintiffs needed to prove certain
things—"a pattern of accidents," "frequent death, injury, disability," and a "dangerous
road"—for the accident to be reasonably foreseeable. Its brief likewise argues that
"there must be evidence of foreseeability of injury to the railroad for a plaintiff to
prevail in an FELA case." (Emphasis added.) Nevertheless, when confronted with its
failure to renew its argument in a postverdict JMOL motion, BNSF urged that
foreseeability is a legal question and not something to be proved. Our case law
addressing reasonable foreseeability of harm, however, reveals that the question is
factual and not legal. See, e.g., Lager v. Chicago Nw. Transp. Co., 122 F.3d 523, 525
(8th Cir. 1997) (affirming grant of summary judgment to railroad because "[t]he
evidence in the record . . . [was] insufficient to support [plaintiff's] claim"); Vidlak v.
Burlington N. R.R., 16 F.3d 1229 (8th Cir. 1993) (unpublished per curiam) (affirming
grant of summary judgment to railroad because plaintiff "failed to offer any evidence
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of foreseeability"); Ackley v. Chicago & N. W. Transp. Co., 820 F.2d 263, 267 (8th
Cir. 1987) (noting that "[t]he Supreme Court has emphasized the jury's role in
determining whether an employer has breached its duties under the FELA");
Richardson v. Missouri Pac. R. Co., 677 F.2d 663, 666 (8th Cir. 1982) (reversing
judgment of the district court because plaintiff "failed to adduce sufficient evidence"
of reasonably foreseeability). The Supreme Court's decision in McBride confirms this
route. Whether a railroad has reasonable grounds to foresee that a particular condition
might result in an injury depends on the evidence of each particular case. See
McBride, 564 U.S. at 702–03. We have no basis to review BNSF's foreseeability
argument because it challenges the sufficiency of the evidence and was not renewed
in a Rule 50(b) motion.
2. Expert Testimony
BNSF also contends that whether expert testimony concerning the applicable
standard of care was required to support the jury's finding of negligence is a legal
issue that need not be renewed in a Rule 50(b) motion. We reject this suggestion and
conclude that BNSF failed to preserve its challenge on this point.
According to BNSF, the disputed issue at trial was whether it breached its
standard of care by allowing employees to choose between transportation by van or
by train. The company contends that the plaintiffs should have been required to
present expert testimony on BNSF's standard of care in transporting employees.
Without such evidence, BNSF asserts, the district court should have dismissed the
claim alleging negligence for allowing the decedents to be transported by van at
night.
Assuming for the sake of analysis that "purely legal issues" need not be raised
in a Rule 50(b) motion to preserve those issues for appeal, BNSF's argument on
expert testimony is not such an issue. Whether expert testimony is necessary depends
on the facts of the case. Here, the question is whether there was sufficient evidence
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to establish a standard of care without expert testimony. The district court said that
lay testimony was enough to support a finding of negligence; BNSF agues that the lay
testimony was insufficient and that an expert was needed. Our cases show that this
is a dispute over the sufficiency of the evidence. S&A Farms, Inc. v. Farm.com, 678
F.3d 949, 954–55 (8th Cir. 2012) (concluding that where plaintiff presented no expert
testimony on the relevant standard of care, a reasonable jury would have no way of
knowing whether Farms.com acted within the standard of care, so summary judgment
was appropriate); Hall v. Arthur, 141 F.3d 844, 847 (8th Cir. 1998) (concluding that
because expert testimony concerning surgeon's standard of care could be applicable
to his assistant, "we reject Dr. Gocio's assertion that there was insufficient evidence
that he violated the standard of care"); see also Olivier v. Robert L. Yeager Mental
Health Ctr., 398 F.3d 183, 190-91 (2d Cir. 2005) ("Because Olivier did not introduce
expert testimony as to medical standards, there was no legally sufficient evidentiary
basis for a reasonable jury to find for Olivier.") (internal quotation and brackets
omitted).
BNSF was required to renew in a Rule 50(b) motion its contention that lay
testimony was insufficient to establish a standard of care and that expert testimony
was required. See Rosenberg v. DVI Receivables XIV, LLC, 818 F.3d 1283, 1292
(11th Cir. 2016). Because BNSF failed to do so, the issue is waived.
B. Evidentiary Rulings
BNSF next argues that the district court erred in the following three evidentiary
rulings: (1) the district court excluded evidence that Burckhard and Mack had the
option to be transported by train or car, (2) the district court admitted evidence of
BNSF's curfew policy, and (3) the district court limited Sergeant Kent's testimony.
We review a district court's evidentiary rulings "for clear abuse of discretion,
reversing only when an improper evidentiary ruling affected the defendant's
substantial rights or had more than a slight influence on the verdict." Chism v. CNH
Am. LLC, 638 F.3d 637, 640 (8th Cir. 2011) (quotation and citation omitted).
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1. Choice of Means of Transportation
BNSF sought to introduce evidence that Burckhard and Mack were given a
choice of train or car transportation upon expiration of their hours of service. BNSF
argues that it was prejudiced by the district court's refusal to allow the proffered
evidence because plaintiffs were able to leave the jury with the impression that BNSF
forced Burckhard and Mack into a less-safe mode of transportation.
The defenses of contributory negligence and assumption of the risk were not
present in the case. The district court excluded evidence relating to choice of
transportation under Federal Rule of Evidence 403 to avoid potentially injecting those
defenses into the trial. Rule 403 permits a court to "exclude relevant evidence if its
probative value is substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence." Fed. R. Evid. 403.
The district court did not abuse its discretion in excluding the evidence. A
district court's Rule 403 ruling "depends on factors that are uniquely accessible to the
trial judge who is present in the courtroom and uniquely inaccessible to an appellate
judge who must take the case on a cold record." Olson v. Ford Motor Co., 481 F.3d
619, 623 (8th Cir. 2007). BNSF contends that the probative value of the evidence was
high because it helped establish that the risk of a drunk driver was not foreseeable.
Assuming that the evidence had some probative value, the district court, nonetheless,
had to weigh its probative value against its potential prejudice. Offering evidence that
the decedents could have chosen a different mode of transportation proves little
where the gravamen of the negligence claim is not the mode of transportation but the
negligence of the transport operator. Despite the exclusion of its preferred evidence,
BNSF was able to offer evidence that federal law permitted transportation at night on
public roadways. BNSF was also allowed to argue in closing that transportation at
night on public roadways is not negligent. The district court ultimately determined
that the evidence's probative value was substantially outweighed by the potential of
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confusing the issues caused by injecting irrelevant defenses. This was not an abuse
of discretion.
2. Curfew Policy
BNSF also argues that the district court erred when it admitted evidence of
BNSF's curfew policy. Plaintiffs were allowed to introduce evidence that BNSF
prohibited deadheading train crews from public-roadway transportation between
10:00 p.m. and 4:00 a.m. BNSF argues that the evidence had "no bearing on this
action" because Burckhard and Mack were not deadheading and that it "proved to be
extremely prejudicial."
Rule 401 defines relevant evidence as evidence that "has any tendency to make
a [consequential] fact more or less probable than it would be without the evidence."
Fed. R. Evid. 401. Here, the district court found that the evidence was relevant
because it showed that BNSF had some concerns about the transportation of its
employees at night on the public roadways. BNSF's knowledge of the risks associated
with nighttime driving was a consequential fact in plaintiffs' negligence action. This
evidence had some tendency to make that fact more probable. The admission of the
evidence also did not unfairly prejudice BNSF. The district court permitted BNSF to
offer evidence addressing the differences between deadheading crews and the
combined service crews. The district court did not abuse its discretion in admitting
the evidence relating to BNSF's deadheading policy.
3. Sergeant Kent's Opinion Testimony
BNSF sought to have Sergeant Kent testify that in his opinion Rennick did not
react negligently to Keiser's driving. BNSF argues that the district court improperly
excluded a portion of Sergeant Kent's trial testimony for two reasons. First, it claims
that the district court improperly treated Sergeant Kent's testimony as lay opinion
rather than expert testimony. Second, even if it were lay opinion, BNSF argues that
the testimony was improperly excluded under Rule 403.
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The district court determined that Sergeant Kent's proffered testimony
characterizing Keiser's driving went beyond the scope of inquiry of an investigating
officer. The district court ruled that a qualified expert should provide analysis of
Rennick's reaction to Keiser's driving instead. The district court also considered the
testimony inadmissible under Rule 403 on the grounds that its probative value was
far outweighed by the dangers of unfair prejudice and cumulative evidence. The
district court permitted two other BNSF witnesses—Aubrey Hutchins, Coach
America's safety director, and Clancy King, BNSF's defensive driving expert—to
comment on Rennick's driving. Sergeant Kent's testimony was cumulative of the
testimony of these witnesses, and it was not an abuse of discretion for the district
court to exclude it on that ground. See Fed. R. Evid. 403; see also Van Dyke v.
Coburn Enters., Inc., 873 F.2d 1094, 1101–02 (8th Cir. 1989) (explaining that a
district court may exclude evidence that has been "rehashed and rehashed").
C. Rule 59(e) Motion
Lastly, BNSF argues that the district court erred in denying its motion to alter
or amend the judgment pursuant to Federal Rule of Civil Procedure 59(e). After the
jury returned its verdict and the district court entered judgment, BNSF moved the
district court to offset the judgment based on the "Off Track Vehicle Accident
Benefits" agreement entered into by plaintiffs and BNSF. The agreement stated that
the amounts received by plaintiffs "may be applied as an offset by the railroad against
recovery that is obtained." (Emphasis added.) We accord a district court broad
discretion in determining whether to grant a motion to alter or amend judgment, and
we will not reverse absent a clear abuse of discretion. United States v. Metro. St.
Louis Sewer Dist., 440 F.3d 930, 933 (8th Cir. 2006).
One of the main purposes of Rule 59(e) is to allow a district court to "rectify
its own mistakes in the period immediately following the entry of judgment." White
v. N.H. Dept. of Emp't Sec., 455 U.S. 445, 450 (1982) (footnote omitted). "Federal
Rule of Civil Procedure 59(e) was adopted to clarify a district court's power to correct
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its own mistakes in the time period immediately following entry of judgment."
Innovative Home Health Care, Inc. v. P.T.-O.T. Assocs. of the Black Hills, 141 F.3d
1284, 1286 (8th Cir. 1998) (citation omitted). Thus, Rule 59(e) generally may be
invoked "only to support reconsideration of matters properly encompassed in a
decision of the merits." White, 455 U.S. at 451 (citation omitted).
The district court denied BNSF's motion because the agreement that was the
basis for BNSF's claimed setoff was collateral to the merits of plaintiffs' FELA action.
BNSF's motion to alter or amend the judgment is based upon payments it made to
plaintiffs pursuant to an agreement that was not an issue resolved at trial. The action
before the district court, and tried to the jury, encompassed only claims under FELA
and negligence under Montana common law. The agreement was not encompassed
within the decision on the merits of plaintiffs FELA case. Moreover, the agreement
had the potential to spawn additional litigation over the use of the word "may." The
district court did not abuse its discretion in denying BNSF's Rule 59(e) motion.
III. Conclusion
Accordingly, we affirm the judgment of the district court.
SMITH, Circuit Judge, concurring.
I concur in the court's opinion. I write separately because I conclude that
whether expert testimony concerning the applicable standard of care was required to
support the jury's negligence finding is a legal question that BNSF need not have
renewed in a Rule 50(b) motion. See supra Part.II.A.2. Nonetheless, I find that the
district court did not err in refusing to require plaintiffs to offer expert testimony.
Subject matter requiring specialized knowledge and training such as medicine,
engineering, and architecture generally requires expert testimony to aid the factfinder.
But, where the claim is basic negligence and no specialized knowledge is needed, the
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jury can render a decision without expert testimony. Deciding whether expert
testimony is needed to establish a claim turns on the specific facts of the case. See
Bartak v. Bell-Galyardt & Wells, Inc., 629 F.2d 523, 530 (8th Cir. 1980). While the
determination is fact dependent, it also rests upon a legal standard. The question is
neither purely legal nor purely factual; it is a mixed question of law and fact. See
Pullman-Standard v. Swint, 456 U.S. 273, 290 n.19 (1982) (noting that mixed
questions of law and fact are "questions in which the historical facts are admitted or
established, the rule of law is undisputed, and the issue is whether the facts satisfy the
statutory standard, or to put it another way, whether the rule of law as applied to the
established facts is or is not violated"). We have committed the determination of
whether expert testimony is admitted to the sound discretion of trial courts, and we
will not reverse a trial court's decision unless it is clearly erroneous. Bartak, 629 F.2d
at 530.
Here, BNSF's argument is that the case presented questions that simply could
not be determined by a factfinder without expert input of the standard of proper or
reasonable care in the railroad industry. This is a legal question, and like all legal
questions, it cannot be resolved in the abstract but must be analyzed in conjunction
with the facts of the particular case. Doing so does not convert it into a sufficiency-ofthe-evidence argument; it remains a legal question. Cf. Rosemann v. Sigillito, 785
F.3d 1175, 1181 (8th Cir. 2015) (agreeing with the district court that expert testimony
was required to establish the proper standard of care and, without it, the plaintiff's
claim of professional negligence was not submissible); Brooks v. Union Pac. R.R.,
620 F.3d 896, 900 (8th Cir. 2010) (affirming grant of summary judgment to defendant
because plaintiff failed to offer expert testimony). For that reason, I conclude that
BNSF's argument challenges a determination committed to the district court, not the
jury, and, therefore, is not an argument that must be renewed in a Rule 50(b) motion.
See Linden v. CNH Am., LLC, 673 F.3d 829, 833 (8th Cir. 2012) (limiting the
requirement to renew a Rule 50(a) motion to sufficiency-of-the-evidence challenges).
We require an argument to be renewed in a Rule 50(b) motion "because it allows the
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district court, which has first-hand knowledge of witnesses, testimony, and issues, an
opportunity after the verdict to review the legal sufficiency of the evidence." Ludlow,
788 F.3d at 800 (quotations and citations omitted). The trial court thus is able to
review the decision of the factfinder, be it a jury or the court itself. Whether expert
testimony is necessary, though, is not entrusted to the factfinder; rather, it is a
determination made by the court to assist the factfinder in weighing the evidence.
Here, BNSF's expert-testimony argument, directed at the trial court, is preserved for
appellate review.5
The ultimate determination of whether expert testimony is required, however,
remains committed to the trial court's sound discretion; here, the district court did not
err in refusing to require plaintiffs to offer expert testimony on crew calls and train
movements. Plaintiffs' theory of liability did not rely on BNSF's negligence in the
mode of transportation. In its final jury instructions, the district court told the jury to
disregard any evidence or argument "suggesting that BNSF should have scheduled

5

The per curiam opinion cites Hall v. Arthur, 141 F.3d 844 (8th Cir. 1998), in
support of its conclusion that BNSF's argument that expert testimony was required
is a sufficiency-of-the-evidence argument. Specifically, the opinion relies on the
following statement: "[W]e reject Dr. Gocio's assertion that there was insufficient
evidence that he violated the applicable standard of care." Id. at 847. This statement
does not bear the load placed upon it, as it simply does not state that the
determination of whether expert testimony is required is a sufficiency-of-the-evidence
question. Hall dealt with a doctor arguing "that since he acted only as an assistant in
Mr. Hall's surgery, the Halls had to produce expert testimony as to the standard of
care applicable to an assistant in order to allow the jury to reach the question of his
potential negligence." Id. As the court noted, the applicable law required that the
violation of the standard of care be established by expert testimony when the asserted
negligence does not lie within the jury's comprehension as a matter of common
knowledge. Id. The court merely rejected the doctor's argument that a separate expert
was required to establish the standard applicable to him as an assistant and that the
plaintiffs could not rely on the expert to establish the standard of care for the lead
doctor. Id.
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its trains and crews to make sure that Todd Burckhard and Blaine Mack reached
Glasgow before their 12-hours in service expired." The district court permitted
plaintiffs to reference BNSF's curfew policy in arguing that BNSF knew that
nighttime transportation by public roadways presented additional risks. The district
court considered these additional risks a "matter of common sense." Plaintiffs'
argument went to the narrow issue of the foreseeability of drunk drivers; contrary to
BNSF's contention, it did not introduce the additional theory of liability that BNSF
was negligent for permitting nighttime transportation on public roadways. Thus,
BNSF's standard of care for crew calls and train movements was not at issue.
Accordingly, I conclude that expert testimony was not necessary on this subject.
______________________________

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