Sherwood v. BNSF Railway Company et al

Filing 226

MEMORANDUM DECISION AND ORDER - IT IS ORDERED THAT: (1) Plaintiffs Motion re: Collateral Sources (Dkt. 166 ), is GRANTED. (2) Plaintiffs Motion to Enforce Rule 30(b)(6) No-Knowledge Answers (Dkt. 168 ) is DENIED.(3) Plaintiffs and Omnibus Motion in Limine (Dkt. 170 ) GRANTED in part and DENIED in part as explained above. (4) Defendants Motion to Exclude Alan J. Blackwell From Testifying at Trial (Dkt. 184 ) is GRANTED in part and DENIED in part as explained above. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
ROBERT WILLIAM SHERWOOD and
PAMELA LOUISE SHERWOOD,
husband and wife,

Case No. 2:16-cv-00008-BLW
MEMORANDUM DECISION AND
ORDER

Plaintiffs,
v.
BNSF RAILWAY COMPANY, a
Delaware corporation d/b/a The
Burlington Northern and Santa Fe
Railway Company, and JOHN DOES
I through X,
Defendants.

INTRODUCTION
Currently before the Court are several motions in limine. See Dkts. 166, 168, 170,
184. Having considered the briefs and the record in this case, the Court has determined
that oral argument is unnecessary and issues the following Order.
ANALYSIS
1.

Plaintiffs’ Motions in Limine
At issue are Plaintiffs’ Motion re: Collateral Sources (Dkt. 166), Motion to

Enforce Rule 30(b)(6) “No-Knowledge” Answers (Dkt. 168), and Omnibus Motion in
Limine (Dkt. 170).
A. Motion re: Collateral Sources (Dkt. 166)

MEMORANDUM DECISION AND ORDER - 1

Plaintiffs ask the Court to exclude any evidence or argument at trial that Blue
Cross or Medicare paid or obtained write-downs from Mr. Sherwood’s medical
providers. Dkt. 166 at 1. Defendants agree that “plaintiff should present the full amount
of claimed damages and the Court would handle off-sets in post-verdict motions.” Dkt.
195 at 4. As both parties point out, Idaho Code § 6-1606 prohibits double recoveries from
collateral sources in any action for personal injury. See Dkts. 166, 195. The statute
provides that judgment may be entered “only for damages which exceed amounts
received by the claimant from collateral sources as compensation for the personal
injury....” I.C. § 6-1606.
The Court agrees with the parties that the collateral source issue is best handled
post-trial. The Court will grant the motion, reserving application of Idaho Code § 6-1606
to post trial proceedings regarding damages, if appropriate.
B. Motion to Enforce Rule 30(b)(6) “No-Knowledge” Answers (Dkt. 168)
Plaintiffs also try to preclude Defendants from introducing evidence at trial that
would contradict certain answers given by BNSF’s 30(b)(6) representative during
depositions. Dkt. 168 at 1. Plaintiffs’ Motion purports to “enforce the Court’s prior
ruling” that “if the [30(b)(6)] deponent does not know the answer to the question, then
BNSF will be bound by that response at trial.” Id. at 2, quoting Dkt. 143 at 15.
Defendants counter that “there is no prohibition against Rule 30(b)(6) witnesses
providing clarification, explanation, supplementation, even contradiction for the
testimony of other witnesses or themselves.” Dkt. 193 at 3. Because Plaintiffs overstate

MEMORANDUM DECISION AND ORDER - 2

the scope of the Court’s Order and would have the Court sidestep contrary Ninth Circuit
precedent regarding the effect of 30(b)(6) deposition testimony, the Court will deny the
motion.
The Ninth Circuit has repeatedly stated that corporate parties have an opportunity
to clarify their 30(b)(6) representative’s deposition testimony at trial, even contradicting
it if there is sufficient reason to do so. While a corporate party “generally cannot present
a theory of the facts that differs from that articulated by the designated Rule 30(b)(6)
representative…the testimony of a Rule 30(b)(6) deponent does not absolutely bind the
corporation in the sense of a judicial admission.” Snapp v. United Transportation Union,
889 F.3d 1088, 1103 (9th Cir. 2018). Like any other deposition, 30(b)(6) testimony can
be “contradicted and used for impeachment purposes.” Id. (quoting 7 James Wm. Moore,
et al., Moore's Federal Practice § 30.25[3] (3d ed. 2016)). The Ninth Circuit’s
endorsement of hornbook law on this issue makes clear that a party is not precluded from
introducing evidence at trial that contradicts the testimony of its 30(b)(6) representative.
Plaintiffs may, however, use the corporation’s deposition testimony for impeachment
purposes, or to point out instances where BNSF might be introducing contradictory
evidence without good reason or explanation. See id. at 1103. Any suggestion that the
Court’s Order (Dkt. 143) stating that BNSF would be “bound” by a response if the
30(b)(6) deponent did not know the answer to the question overstates the scope of the
Court’s Order and would run counter to controlling Ninth Circuit precedent. Therefore,
Plaintiffs’ Motion to Enforce 30(b)(6) “No-Knowledge” Answers will be denied.

MEMORANDUM DECISION AND ORDER - 3

Depending upon the testimony given, the Court may consider giving the jury an
explanatory instruction on the function of the 30(b)(6) deposition and the obligation of
the deposed party to offer a representative who is knowledgeable and able to address the
topics identified by the deposing party.
C. Plaintiffs’ Omnibus Motion in Limine (Dkt. 170)
Plaintiffs’ Omnibus Motion in Limine asks the Court to exclude any argument,
reference, testimony, or documentary evidence pertaining to three (3) issues: (1) possible
reasons that might have motivated former Plaintiffs’ former spouse to dismiss her claims;
(2) Mr. Sherwood’s former illegal drug use; and (3) Mr. Sherwood’s alleged character or
habit of enjoying speed or taking risks. Dkt. 170 at 1-2.
Under Rule 401, “[e]vidence is relevant if: (a) it has any tendency to make a fact
more or less probable than it would be without the evidence; and (b) the fact is of
consequence in determining the action.” Fed. R. Evid. 401. All relevant evidence is
admissible, unless otherwise proscribed by law. Fed. R. Evid. 402. Evidence that is not
relevant is not admissible. Id. Under Rule 403, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of the
issues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence. Fed. R. Evid. 403.
1.

Pamela Sherwood’s Motivations for Dismissing Her Claims
Plaintiffs argue that that the motivations of Mr. Sherwood’s former spouse,

Pamela Sherwood, to dismiss her claims are irrelevant to any claim or defense at issue in

MEMORANDUM DECISION AND ORDER - 4

this litigation under Rules 401 and 402. Dkt. 170-1 at 1-2. The Court agrees with
Plaintiffs that speculation about Pamela Sherwood’s motivations for dismissing her
claims against Defendants is irrelevant will not be admitted at trial.
Robert and Pamela Sherwood were married at the time of Mr. Sherwood’s
accident and filed the current lawsuit against Defendants. Dkt. 1. Mr. Sherwood and Ms.
Sherwood later divorced, and Ms. Sherwood dismissed her claims against Defendants.
See Dkts. 137, 138. Ms. Sherwood’s motive for dismissing her claims do not tend to
make any consequential fact more or less probable in this case. See Fed. R. Evid. 401402. “Moreover, it comports with public policy for courts to encourage parties to
voluntarily dismiss unnecessary claims and streamline the proceedings.” See Silver State
Intellectual Techs., Inc. v. Garmin Int'l, Inc., No. 11-1578, 2015 WL 2152658, at *2 (D.
Nev. May 7, 2015).
Therefore, the Court will grant Plaintiffs’ motion to exclude any argument,
reference, testimony, or documentary evidence pertaining to Pamela Sherwood’s
motivations for dismissing her claims.
2.

Mr. Sherwood’s Former Illegal Drug Use
Plaintiffs argue that references to Mr. Sherwood having tried cocaine a couple of

times decades ago is irrelevant and inadmissible under Rules 401 and 402. Dkt. 170-1 at
2. In his mental examination report, Dr. Ronald Klein mentions that Mr. Sherwood used
cocaine at age 30 but has since “discontinued the practice.” Dkt. 44-2 at 6. Mr. Sherwood
is now in his sixties. See Id. at 2. Defendants have not argued that Mr. Sherwood was

MEMORANDUM DECISION AND ORDER - 5

under the influence of alcohol or illegal drugs at the time of the accident, or even that he
has used drugs recently. The Court finds that any such testimony has no probative value,
and would be significantly prejudicial to Mr. Sherwood; any evidence about his long-past
drug use is inadmissible. See Fed. R. Evid. 401, 403.
Therefore, the Court will grant Plaintiffs’ motion to exclude any argument,
reference, testimony, or documentary evidence pertaining to Mr. Sherwood’s former
illegal drug use.
3.

Mr. Sherwood’s Personality Trait or Habit for Speed or Risk-Taking
Plaintiffs argue that Mr. Sherwood’s personality trait or habit for speed or risk-

taking is inadmissible under Rules 404 and 406, and is more prejudicial than probative
under Rule 403. Dkt. 170-1 at 2-5.1 Defendants counter that they should be allowed to
offer evidence of Mr. Sherwood’s habitual, “semi-automatic approach in carrying out
specific avocational activities involving vehicles.” Dkt. 194 at 3. Defendants further
argue that Mr. Sherwood’s pursuits are evidence of a “habit of pushing the limit on
speed” and that this habit was the “cause” of the accident. Id.
Evidence of “habit” may be admissible to prove a party acted in conformity with
that habit on a particular occasion. Fed. R. Evid. 406. However, there must be evidence to
show that the conduct occurred frequently enough to qualify as a routine practice under

1

The Court has already addressed this issue under Rules 403 and 404 in its Order granting Plaintiffs’
motion to limit the testimony of Dr. Ronald Klein. Dkt. 215. However, the Parties did not directly raise
the Rule 406 “habit” issue in the previous motion in limine, so the Court will consider it here.

MEMORANDUM DECISION AND ORDER - 6

Rule 406. Fort Hall Landowners All., Inc. v. Bureau of Indian Affairs, 407 F. Supp. 2d
1220, 1226–27 (D. Idaho 2006). “In deciding whether certain conduct constitutes habit,
courts consider three factors: (1) the degree to which the conduct is reflexive or semiautomatic as opposed to volitional; (2) the specificity or particularity of the conduct; and
(3) the regularity or numerosity of the examples of the conduct.” United States v. Angwin,
271 F.3d 786, 799 (9th Cir. 2001), overruled on other grounds by United States v. Lopez,
484 F.3d 1186 (9th Cir. 2007). “The burden of establishing that certain conduct qualifies
as evidence of habit falls on the party wishing to introduce the evidence.” Id. at 799.
Here, there is no evidence that Mr. Sherwood had developed a habit for unsafe
speed or risk-taking on bicycles under Rule 406. Although Defendants point to Mr.
Sherwood being a former racecar driver, dune buggy driver, and a mountain biker, there
is no evidence of a “regular practice” of “pushing the limit on speed.” See Angwin, 271
F.3d at 799; Dkt. 194 at 3. Furthermore, Defendants cannot point to any instances when
Mr. Sherwood participated in these activities in an unsafe manner. Dkt. 170-1 at 3. Mere
participation in these activities does not constitute a “regular practice” of “pushing the
limit on speed,” or suggest that Mr. Sherwood is “semi-automatic[ally]” putting his
health at hazard. Id. at 2; Dkt. 194. Even if Plaintiffs’ evidence satisfied the “regularity or
numerosity” requirement under Rule 406, because they have done nothing to show Mr.
Sherwood’s behavior is reflexive or described the alleged habit with sufficient
particularity, the Court will grant Plaintiffs’ motion to exclude any argument, reference,

MEMORANDUM DECISION AND ORDER - 7

testimony, or documentary evidence pertaining to Mr. Sherwood’s personality trait or
habit for speed or risk.
2.

Defendants’ Motions in Limine
The Court also has before it Defendants’ Motion in Limine to Exclude Alan J.

Blackwell From Testifying at Trial (Dkt. 184). Defendants argue that Mr. Blackwell (a)
offers testimony that is irrelevant and unhelpful under Rule 702 and (b) that he is not
qualified to offer several of the opinions in his expert reports and deposition testimony.
A. Mr. Blackwell Is Not Qualified to Testify About the Law or Evidence
Preservation
As the Court has pointed out in its previous Orders in this case, a witness must be
sufficiently qualified to render expert opinions. Primiano v. Cook, 598 F.3d 558, 563 (9th
Cir. 2010); Fed. R. Evid. 702. A witness qualified by knowledge, skill, experience,
training or education may offer expert testimony where: (1) the opinion is based upon
sufficient facts or data, (2) the opinion is the product of reliable principles and methods;
and (3) the witness has applied those principles and methods reliably to the facts of the
case. Fed. R. Evid. 702; Daubert 509 U.S. at 592–93; Kunho Tire Co. v. Carmichael, 526
U.S. 137, 147 (1999).
An expert’s testimony must also be relevant. Under Rule 702, for expert testimony
to be relevant it must be sufficiently tied to the facts of the case so that it is of assistance
to the trier of fact in resolving a disputed issue. Daubert, 509 U.S. at 591, 113 S.Ct. 2786.
In other words, the expert's opinion must “fit” the facts of the case and serve a “helpful”

MEMORANDUM DECISION AND ORDER - 8

purpose to the jury. Id. In evaluating relevancy, “the court must determine whether there
is ‘a link between the expert's testimony and the matter to be proved.’” Stilwell v. Smith
& Nephew, Inc., 482 F.3d 1187, 1192 (9th Cir.2007).
Defendants first ask the Court to prohibit Mr. Blackwell from “offering new
opinions and/or testimony at trial regarding I.C. § 62-306.” Dkt. 184 at 8. Defendants
want to specifically prevent Mr. Blackwell from opining on “what is required by the
‘smooth and firm’ language of I.C. § 62-306 and/or whether BNSF met the requirements
of the statute.” Id. Defendants are correct that it is in inappropriate for an expert witness
to “give an opinion as to her legal conclusion, i.e., an opinion on an ultimate issue of
law.” United States v. Diaz, 876 F.3d 1194, 1197 (9th Cir. 2017). The Court does not
understand this to be the within the expected scope of Mr. Blackwell’s testimony based
on a review of his expert report and deposition. Nevertheless, the Court agrees with
Defendants that it would be inappropriate for Mr. Blackwell to opine on the ultimate
legal issue of whether BNSF complied with I.C. § 62-306, and will grant their motion to
the extent it would prevent Mr. Blackwell from doing so at trial.
The Court also agrees with Defendants that Mr. Blackwell lacks the requisite
qualifications to offer expert testimony regarding evidence preservation. Mr. Blackwell’s
third supplemental report indicates he intends to testify regarding BNSF’s evidence
retention practices. Dkt. 186-5 at 4. As Defendants point out, however, Mr. Blackwell has
no education in the area of evidence preservation, and does not have any relevant
experience in the field. Dkt. 202 at 9-10. Because Mr. Blackwell bases his opinions on

MEMORANDUM DECISION AND ORDER - 9

the subject “on [his] experience” throughout his reports, he must have the CV to back
those opinions up. He does not. See generally Dkt. 186. As such, the Court will grant
Defendants motion in limine to prevent Mr. Blackwell from testifying regarding the issue
of BNSF’s evidence preservation practices.
B. Mr. Blackwell is Qualified to Offer Opinions on Railroad Maintenance
The Court will deny the balance of Defendants’ motion in limine to exclude the
testimony of Mr. Blackwell. Defendants argue both that Mr. Blackwell offers opinions
that are unhelpful to the jury, and that he is unqualified to serve as an expert in railroad
maintenance. Dkt. 184 at 10-16. Plaintiffs point out, however, that Mr. Blackwell’s
reports and testimony reflect numerous opinions that will be helpful to the jury: “how the
different components of track structure work together to maintain the integrity of the
track; the function of each of those track components; the importance of proper drainage
to the structural integrity of the track,” among others. Dkt. 199 at 10-11. As Plaintiffs
point out, Mr. Blackwell is sufficiently qualified to arrive at these conclusions regarding
railroad maintenance, and uses the same methodology as Defendants’ expert, Mr. Rusk.
Dkt. 199 at 12; Dkt. 199-1 at 7-12. Because Defendants cannot refute Mr. Blackwell’s
significant experience in the field of railroad maintenance, and because his expert
opinions on the subject will be helpful to the jury, the Court will deny Defendants’
motion to the extent it attempts to prohibit Mr. Blackwell from testifying on these
subjects.
ORDER

MEMORANDUM DECISION AND ORDER - 10

IT IS ORDERED THAT:
(1) Plaintiffs’ Motion re: Collateral Sources (Dkt. 166), is GRANTED.
(2) Plaintiffs’ Motion to Enforce Rule 30(b)(6) “No-Knowledge” Answers (Dkt.
168) is DENIED.
(3) Plaintiffs’ and Omnibus Motion in Limine (Dkt. 170) GRANTED in part and
DENIED in part as explained above.
(4) Defendants’ Motion to Exclude Alan J. Blackwell From Testifying at Trial
(Dkt. 184) is GRANTED in part and DENIED in part as explained above.

DATED: March 4, 2019
_________________________
B. Lynn Winmill
U.S. District Court Judge

MEMORANDUM DECISION AND ORDER - 11