Willis v. BNSF Railway Company
Filing
80
ORDER granting in part and denying in part 69 Motion in Limine. See written order. Entered by Magistrate Judge John A. Gorman on 10/2/13. (WW, ilcd)
E-FILED
Wednesday, 02 October, 2013 10:33:25 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
Jeffrey Willis
Plaintiff
v.
BNSF Railway Company
Defendant
)
)
)
)
)
)
)
11-1208
ORDER
Now before the Court is the motion in limine (#69) filed by Defendant BNSF, as well as a
subsequent document from BNSF titled “memorandum of clarification.” (#75). Also pertinent to
this motion is Plaintiff’s memorandum responding to BNSF’s clarification memo1. As stated
herein, the motion, as modified by the memoranda, is granted in part and denied in part.
Before addressing the specific issues raised in the motion, the Court will address
Plaintiff’s contention that the part of this motion challenging the testimony of Plaintiff’s expert
Gary Mallen is essentially a Daubert motion that has been untimely filed. In the original
scheduling order (see minutes of 9/27/11), no deadline was set for filing Daubert motions. There
were several subsequent extensions of the original schedule; at no time did the Court set such a
deadline. It was not until Defendant’s timely-filed motion in limine that BNSF challenges to
Mallen’s testimony. There are two aspects to the challenges to Mallen: his opinions are barred by
the order on summary judgment (Doc.#55, March 13, 2013), or they are barred because they
were not disclosed in his Report.
1
Plaintiff’s memo also relates to Defendant’s other Memorandum of clarification (#76), dealing
with objections in transcripts that will be read at trial. Those issues are dealt with in a separate
Order.
1
The better practice would certainly have been to file a Daubert motion earlier than BNSF
did here. Mallen’s deposition was taken a year ago, and the summary judgment order was
entered over 6 months ago. Nonetheless, the Court has never set a deadline for filing Daubert
motions, and there is nothing in the Rules or in Daubert itself or its progeny that would mandate
a finding of untimeliness. Finding the motion untimely would be a gross injustice. The Court will
therefore consider the motion. In light of the extensive briefing on this issue, there is no need for
oral argument.
The organization of this Order mirrors the organization of BNSF’s motion. Headings and
paragraph numbers are those contained in the motion.
I. GENERAL
1. BNSF asks the Court to bar any suggestion or testimony that Plaintiff’s children have been
injured or sustained damages. Plaintiff does not oppose this. The motion is granted as to this
issue.
2. BNSF asks that Plaintiff be barred from referring to this case as a “workers’ compensation”
case, or from stating that Plaintiff is not eligible for workers’ compensation or did not receive
compensation for the incident. In Schmitz v Canadian Pacific Railway Co., 454 F3d 678 (7th Cir
2006), the plaintiff contended that the district court should have given a cautionary instruction.
The context was slightly different in Schmitz, however, than it is here. In Schmitz the jury had
asked whether the plaintiff received medical or workers’ compensation benefits for his injury.
The district court had declined to answer specifically, responding that such matters were “simply
not before the court or the jury.” The Seventh Circuit affirmed the district court, stating that such
an instruction – that the plaintiff had “no means of recovery other than FELA” – could have
2
prejudiced the railroad and that the court’s admonition that the matters were not before them
“was appropriate.” Id at 685.
In this case, there is no question from the jury; BNSF simply asks the Court to prevent
Willis from bringing up the subject during trial. Although Plaintiff suggests that the jury should
be advised of the law, that would be inconsistent with Schmitz. If and only if the matter is raised
by the jury will they be properly admonished. If it is not questioned, jury instructions will be
clear enough that no “clarifying” instruction will be necessary. The motion is therefore granted
as to this issue.
3. BNSF asks that Willis be barred from making any reference to whether BNSF is insured or
indemnified. Plaintiff does not oppose this. The motion is granted as to this issue.
4. BNSF asks that Plaintiff be barred from referring to BNSF’s size, financial condition,
corporate structure, ownership, solvency, or ability to pay. Plaintiff does not oppose this, noting
only a possibility that BNSF might open the door to such references. The motion is granted. If
the door is opened, Plaintiff of course has leave to bring the matter to the Court’s attention and
seek modification of this order.
5. BNSF asks that Plaintiff be barred from referring to or arguing that he incurred or paid
medical or hospital bills or expenses. Plaintiff does not oppose this. The motion is granted as to
this issue.
3
6. BNSF asks the Court to bar reference or argument regarding Congressional intent or purpose
of FELA. Plaintiff responds that the Court should inform that jury about FELA’s history and
Congressional intent, explaining the statute’s “basic principles and purpose.” The Court declines
to give such an instruction (and notes that Plaintiff has failed to even tender such an instruction).
See, Stillman v Norfolk & Western Railway Co., 811 F2d 834, 838(4th Cir 1987)(affirming
district court’s refusal to allow plaintiff to argue about Congressional intent). The motion is
granted as to this issue.
7. Defendant asks the Court to bar reference, statements and argument about Plaintiff’s financial
expenditures, such as poverty or reduced standard of living. Plaintiff does not oppose this, so
long as Defendant makes no suggestion that he is well off or that his financial situation was the
incentive for filing this lawsuit. The motion is granted. If Defendant opens the door, Plaintiff
may bring the matter to the Court’s attention.
8. BNSF wants the Court to bar Plaintiff from commenting on the size of the law firm or number
of attorneys in the law firm representing it. Plaintiff does not oppose this part of the motion. It is
therefore granted.
9. BNSF wants Plaintiff barred from presenting evidence pertaining to other lawsuits or claims
against BNSF. Plaintiff does not oppose the motion, stating it will approach the Court if BNSF
opens the door to this type of evidence. The motion is granted.
4
10. BNSF asks that Plaintiff be barred from referring, arguing, or stating that the law firm
represented BNSF in this suit regularly represents BNSF. Plaintiff does not oppose this motion.
The motion is granted as to this issue.
11. BNSF asks that Plaintiff be barred from referring to punitive or exemplary damages. Plaintiff
does not oppose this matter. The motion is granted.
12. BNSF asks the Court to bar reference to settlement discussions or communications between
the parties to this suit. Plaintiff does not oppose the motion. It is granted.
13. BNSF asks that Plaintiff be barred from referring to motions in limine or other pretrial
motions. Plaintiff does not oppose the motion as to motions in limine and makes no response
with respect to other types of motions. The motion is granted.
14. BNSF asks that Willis be barred from suggesting, stating or attempting to argue that BNSF
has failed to produce documents, that documents are missing, lost or destroyed, or that there was
motion practice on discovery issues. Willis does not oppose this motion as long as the bar applies
to both parties. The motion is granted as to both parties.
15. Defendant asks that Plaintiff be barred from referring to the railroad or to railroading as
dangerous. Plaintiff responds that he must be able to present evidence and argument about
“specific relevant dangers,” because under FELA BNSF had a duty to provide Willis with a safe
place to work. That requires, says Plaintiff, a level of care “commensurate to the dangers of the
5
business,” quoting Atlantic Coast Line Railroad Co v Dixon, 189 F2d 525, 527 (5th Cir)
[emphasis added by Plaintiff], cert denied, 342 US 830 (1951). Plaintiff may of course refer to
the dangers inherent in setting a hand brake, as that is the issue in this case. There is however, no
relevance to this case of any other danger, so general references to dangers in the industry as a
whole would be improper. The motion is granted in part and denied in part, as stated.
16. BNSF asks the Court to prevent Willis from questioning a potential juror about his or her
personal experiences with a particular injury, treatment or duration of the injury, the effect of the
injury on earnings or family, or similar efforts to elicit in front of the panel a personal accounting
of that panel member. Willis responds that jurors’ experiences with their own injuries or injuries
of family members could have resulted in bias and strong feelings, so he should be allowed to
voir dire on this issue.
The Court will ask the jury panel members if they or any member of their immediate
family has suffered a serious injury. If the answer is affirmative, the Court will inquire about the
nature of the injury and whether their experience with that injury – including treatment and
recovery – will affect their ability to view the evidence in this case fairly and impartially. No
further individual questioning by counsel beyond the Court’s questions will be allowed without a
bench conference before the questioning commences. To that extent the motion is granted.
17. BNSF asks for a bar of statements or evidence that it could have provided safer procedures or
methods of work. Willis opposes this, asserting that if BNSF foresaw (or should have foreseen)
that a method posed a danger to its workers, then it had a duty to reduce that danger. In Stillman,
the Fourth Circuit held that the question for the jury was whether the railroad had exercised
6
reasonable care for the safety of its employees, not whether it could have employed a safer
method of performing a specific procedure or method. 811 F2d at 838. In other words, the
question is whether the hand brake was safe as it existed when Willis used it, not whether it
could have been safer at that time. The quotations offered by Plaintiff do not contradict that
holding.
That said, however, this issue is directly related to the issue raised below that BNSF has
characterized as “Subsequent Remedial Measures.” To the extent that BNSF intended this
section (i.e.#17) to bar evidence of subsequent remedial measures, this section is denied; the
admissibility of evidence of subsequent remedial measures is an issue governed by the section
below with that title.
Plaintiff argues that this issue may be raised by BNSF in its proof of the affirmative
defense of contributory negligence, namely that Willis’s failure to use a safer method was
evidence of that defense. BNSF cannot have it both ways; if this issue is raised, then of course
Willis will be allowed to introduce evidence to dispute it. That issue, however, is not presently
before the Court.
To the extent there may be some other type of evidence regarding “safer procedures,” the
Court lacks specific information and will not rule in a vacuum. This part of the motion is
therefore denied, with leave to move for reconsideration if appropriate during trial.
II. STANDARD OF PROOF UNDER FELA
18 and 19. In these paragraphs, BNSF points out that the only remaining claim is Count I, which
alleges BNSF’s negligence. As a result, BNSF asks the Court to bar any argument or statement
that a violation of FELA is “negligence per se” or that BNSF is “strictly liable” for violations of
FELA. Willis acknowledges the prior ruling on this question but asks the Court to revisit its
7
entry of summary judgment as to Count II; the Court declines to do so. In the absence of such
action, Plaintiff does not oppose BNSF’s motion. The motion is therefore granted.
III. SUBSEQUENT REMEDIAL MEASURES
20-27. BNSF anticipates testimony that following Willis’s injury BNSF made “brake sticks”
available to its employees. Brake sticks allow an alternative method of setting and releasing hand
brakes. Use of brake sticks is not a new technology or method; according to Plaintiff’s expert,
they have “been around” since the late 1980’s.
BNSF asserts that this is a subsequent remedial measure barred by FRE 407. Moreover,
BNSF asserts that expert testimony would be required on the question whether use of brake
sticks would have made Willis’s job safer, testimony that Plaintiff’s expert Gary Mallen did not
offer. In fact, at his deposition, Mallen said that the use of a brake stick would not have
prevented Willis’s injury and that there have been “a lot” of injuries involved with the use of
brake sticks.
Plaintiff responds that subsequent remedial measures are admissible to prove “feasibility
of precautionary measures, if controverted.” In addition, Plaintiff asserts that the question does
not require expert testimony; the jury should be allowed to exercise “common sense” in
assessing the reasonable care and safe workplace issues. These arguments raise 2 questions: the
applicability of Rule 407 and the need for expert testimony on the question.
Rule 407 provides:
When, after an injury or harm allegedly caused by an event, measures are taken that, if
taken previously, would have made the injury or harm less likely to occur, evidence of
the subsequent measures is not admissible to prove negligence…This rule does not
require the exclusion of evidence of subsequent measures when offered for another
purpose, such as proving … feasibility of precautionary measures, if controverted…”
8
FRE 407. This Rule is intended to remove the “disincentive to take post-accident safety
measures that would exist if the accident victim could introduce evidence of measures on the
issue of the defendant’s liability.” Probus v K-Mart Inc., 794 F2d 1207, 1210 (7th Cir 1986).
The Rule has exceptions, one of which applies here, namely that subsequent remedial
measures are admissible to show the feasibility of other methods. Here, Willis wants to admit
evidence about the use of brake sticks to show that this method was feasible at the time of
Plaintiff’s injury. With that limitation, evidence about the subsequent availability of brake sticks
is not barred by Rule 407.
Nor is expert testimony needed for this limited question. It is not disputed that the method
was feasible. Willis himself can testify about when the brake sticks became available to him,
how it affects the way he ties a hand brake, if he uses this method consistently, and the like. The
fact that Plaintiff’s own expert testified in a manner that challenges the contention that this
method is safer and/or would have prevented Willis’s injury simply goes to the weight the jury
might give to Willis’s testimony. It does not affect its admissibility. Whether having this method
in place would have made Willis’s workplace safer is a straightforward matter for the jury to
decide.
This ruling is strictly limited to the issue of feasibility. For these reasons, the motion is
denied.
IV. DAMAGES
28-30. Rule 26(a) required Willis to disclose a computation of each “category of damages.”
FRCP 26(a)(1)A)(iii). Willis disclosed a category of damages for lost wages and another for pain
and suffering. He now apparently seeks to include in the damages for pain and suffering his “lost
enjoyment of life.” BNSF argues that because Willis disclosed only past lost wages and pain and
9
suffering, he should be precluded from offering evidence or argument regarding disability, loss
of enjoyment, loss of a normal life, and loss of vitality
It is true that “loss of enjoyment of life” is not a recovery separate and distinct from pain
and suffering. “Loss of enjoyment of life, however, can be a component of the category of
damages known as “pain and suffering.” As the Seventh Circuit’s Pattern Instruction 9.04
illustrates, evidence of all of these aspects of “pain and suffering” may be included in the jury’s
determination of the proper amount to award for the category of “pain and suffering.” The
various components are not listed as separate lines in the damages instruction; the jury will
award a single amount for the totality of these components.
Under the jury instruction cited above, “pain and suffering” may encompass loss of a
normal life. BNSF has introduced no authority for the proposition that “category” as that word is
used in Rule 26(a) means anything other than the “categories” that are encompassed by that
Instruction. By disclosing a computation of his damages for “pain and suffering,” Plaintiff
adequately advised that each component of that “category” of damages was in issue. The motion
is denied.
V. CO-WORKER TESTIMONY
31. BNSF seeks exclusion of all testimony from co-workers regarding other incidents or
accidents they may have witnessed or been involved in, unless that co-worker can show that
he/she was in a similar position, used the same hand brake as Willis, and suffered a shoulder
injury; and unless the testimony is offered as evidence of negligence, notice or causation. Willis
responds only that such testimony bears on the issue of notice, so the Court will limit the
following discussion in that way; such evidence cannot come in as proof of negligence or
causation in Willis’s case in chief.
10
BNSF cites three cases in support of this proposition; none are apposite. In Holbrook v
Norfolk Southern Railway Co., 414 F3d 739,746 (7th Cir 2005), the Court of Appeals upheld the
District Court’s exclusion of photographs of “similar hazardous” track conditions when there
was no foundation that the tracks at the time of the incident were in the same condition as in the
photographs. Track conditions may vary widely from place to place, with factors such as the
surrounding environment, the weather, the age of the tracks all entering into the equation.
Whether a railroad had notice of track conditions at one place has little to do with the notice they
had about conditions at another place. Unlike track conditions, tying a hand brake is a discrete
function. When the only issue is notice, it would be immaterial what specific injuries they
sustained or which hand brake they were operating when completing that function. Multiple
injuries performing the same function is relevant to BNSF’s notice. This case does not support
BNSF’s position.
The second case is Amatucci v Delaware & Hudson Railway Co., 745 F2d 180 (2d Cir
1984). In that case the injury was a heart attack. It is not surprising that the court wanted to look
at issues such as similar workplace conditions in order to decide whether the railroad had notice.
Notice of a heart attack does not equate to notice of a dangerous condition in the workplace. This
case too is inapposite.
In the third case, the issue was disease, not injury, and the testimony was being offered
on the question of causation, not notice. Marsee v US Tobacco Co., 866 F2d 319, 321-22 (10th
Cir 1989). It provides no guidance on this question.
To the extent that the testimony of co-workers goes only to notice and is based on injuries
or involvement with tying a hand brake, the testimony is admissible. BNSF is of course free to
11
cross examine the witness on whether there were distinctions in circumstances. Such matters do
not preclude admissibility. The motion is denied.
32. BNSF also seeks to bar references by co-workers that BNSF could have provided safer
methods of work or that the workplace was or is not as safe as possible. The cases cited stand for
the proposition that proof of a safer alternative is not necessarily proof of negligence; the
relevant inquiry is whether the railroad provided a reasonably safe environment, not whether
procedures could have been made safer. This issue overlaps to a certain degree with the issue of
subsequent remedial measures, discussed above: if the evidence BNSF seeks to bar falls within
the ruling above, then the Court’s ruling above on the use of brake sticks applies and this part of
the motion is denied. In all other respects, this part of the motion is granted.
33. BNSF raises the spectre that some of Willis’s co-workers who may testify about similar
problems with tying a hand brake never made a complaint to BNSF. Because such co-worker
testimony is limited to the issue of notice, any testimony on this question by co-workers must be
preceded by a showing that BNSF was made aware of the incident in some concrete way. Absent
such a showing, the testimony is barred.
34. BNSF argues that testimony of co-workers about similar incidents cannot include testimony
that the incident with the hand brake was the “cause” of their injuries. Plaintiff does not address
this question either, probably because testimony about similar issues is limited to the issue of
notice. Causation is a separate issue, is probably irrelevant to this case, and obviously cannot be
12
the focus of the testimony. The Court will not allow co-worker testimony to evolve into minitrials; such testimony must be focused on notice.
VI. DOCTORS’ AND PHYSICAL THERAPISTS’ STATEMENTS
35. BNSF asserts that any statements made by Plaintiff’s medical providers to Plaintiff are
hearsay, and Willis should not be allowed to testify about those statements. Willis responds that
BNSF’s defense of failure to mitigate is based on Willis’s failure to follow the advice of those
providers by taking part in physical activities that delayed his recovery. That entirely misses the
point.
A statement made by a medical provider to Willis can be proved by the provider who
made the statement. Testimony from both Willis’s physician and his physical therapist will be
presented. To the extent supported by that testimony, Willis can certainly testify that when he
participated in wrestling or rode his bicycle he was following advice from his physician and/or
therapist without testifying directly about what that physician’s advice entailed. That totally
eliminates the hearsay problem.
If there is nothing in the testimony of the providers to support Willis’s testimony that he
was following medical advice, then Willis’s iteration of statements they made to him is classic
hearsay: he would be testifying about another person’s unsworn statement and he would be
offering those statements to prove the truth of his statement that they advised him to take specific
actions.
Whether Willis can offer such testimony depends on the testimony of the providers. The
Court does not have enough information at this time to determine whether the hearsay problem
can be avoided. But it is clear that Willis himself cannot testify about what his medical providers
told him. To that extent the motion is granted.
13
VII. EVIDENCE OF DEFECT OR IMPROPER FUNCTION OF HAND BRAKES
36-38. When this Court was considering BNSF’s motion for summary judgment, BNSF relied on
the testimony of Plaintiff’s expert that the hand brake was not defective but rather that it operated
on the date in question as it ordinarily did. That testimony in turn was based on evidence that
hand brakes had a common tendency to slip when being tied and that everyone – employees and
management alike – was aware of this tendency: it was a consequence of the design of the brake.
The Court concluded that just because a hand brake is not “defective” does not mean that it is
safe. Because it is Willis’s burden to show that BNSF did not provide a “safe” workplace, the
lack of “defect” in the hand brake was not sufficient to support entry of summary judgment on
the FELA claim.
BNSF goes too far in asking that Plaintiff be barred from introducing evidence “that the
hand brake was defective, worked improperly, or failed to function in the normal, natural and
usual manner.” The issue in this case is whether the slippage of the hand brake was sufficient to
create an unsafe workplace. Witnesses for either party can describe how a hand brake is
supposed to work and what happens when it slips. They can describe what they saw, heard and
felt when it slips. They can relate what they did when it slipped – who they told or what
paperwork they completed. What they may not do is characterize what happened as a “defect,”
or as “improper” function or as “normal” function. The goal is to prove or to disprove the
existence of an unsafe condition. Whether either party meets that goal is up to the jury to decide.
To that extent only, the motion is granted.
14
VIII. WORK LIFE EXPECTANCY
39-44. BNSF asks that Plaintiff be barred from offering evidence on future lost wages or loss of
future work life expectancy. Willis does not intend to offer any such evidence. The motion is
therefore granted.
IX. OTHER EMPLOYEES’ INJURIES
44-56. BNSF asks that Willis be barred from offering evidence of, arguments concerning,
exhibits identifying, or references to other employees’ alleged injuries while using a hand brake.
This argument is very similar to the argument made regarding co-workers’ statements about their
own injuries. To the extent there is overlap, the ruling on that issue remains as stated above.
The Court disagrees, however, with Plaintiff’s assertion that this part of the motion is
merely “duplicative” of the earlier argument. It is not; it is broader because it seeks to preclude
any type of evidence, testimony or argument about anyone’s injury other than Willis’s injury. In
particular, it appears that this argument is focused on preventing Willis himself from testifying
about other employees’ purported injuries.
BNSF provides a number of reasons that this evidence should be barred. The Court feels
compelled to note first an argument not presented, namely that Plaintiff must have personal
knowledge before he can testify about something. FRE 602. If all Willis knows is what someone
else told him or what he has heard – that another employee was injured, how he was injured, the
injury itself – then he has no basis for testifying. That is the simplest explanation for the
limitations on Willis’s testimony about other employees’ injuries.
Even if he were able somehow to show the requisite personal knowledge, however,
Willis would have to show enough evidence of factual similarity to his own situation to make
this type of evidence relevant. FRE 401, 402, 403. That would require mini-trials about each of
15
the other employees. The Court has no intention of allowing this trial to become a
conglomeration of mini-trials.
Because it is so doubtful that Willis is competent to testify about this matter, the Court
expresses at this time no opinion about the level of similarity that would be required. Should
there be any intent on Plaintiff’s part to offer this type of testimony, Plaintiff shall immediately
notify the Court by filing a motion that provides sufficient information for the Court to make a
more extensive ruling. At this time, however, the motion is granted to the extent that it seeks to
exclude Willis’s testimony about other employees’ injuries as a result of hand brake operation.
It is not clear to the Court how else Willis might try to offer evidence of other employees’
injuries beyond the two situations2 addressed in this Order, namely through the testimony of
those other employees and through Willis’s own testimony. If there is a suggestion that Willis
intends to present such evidence via some other witness, BNSF may bring this to the Court’s
attention, either by filing an appropriate motion at this time or by raising it promptly at trial.
X. OPINION TESTIMONY ON SAFETY OF PARTICULAR METHOD
57-61. At first blush, this argument appears to harken back to the earlier section in which BNSF
asked the Court to bar evidence of subsequent remedial measures. It does not. The earlier section
of this Order found admissible evidence that BNSF began to allow brake sticks after Willis’s
injury, for the limited purpose of showing feasibility. In this section of the motion, BNSF focuses
on specific testimony that might be offered that BNSF should have provided Plaintiff with a
brake stick before his injury.
2
There is a third possibility – that Willis’s expert witness, Gary Mallen, will testify about other
employee injuries. This possibility is governed by the section below, in which BNSF seeks to
exclude Mallen’s testimony.
16
BNSF quotes Willis’s deposition testimony to the effect that a brake stick “doesn’t
require as much force to tie the hand brake.” Willis can certainly make that common sense
statement, based on his own experience. BNSF is of course free to question him about the details
of his use of a brake stick. This statement does not require expert testimony; it is sufficiently
grounded in Willis’s personal knowledge and experience and that lay testimony is permissible.
To this extent the motion is denied.
BNSF then quotes Willis’s expert’s testimony that (1) even with the use of brake sticks,
Willis’s injury “very possibly” could still have occurred; and (2) that industry evidence is mixed
regarding use of brake sticks; and (3) that there have been a lot of injuries in the industry
involving the use of brake sticks. Although not explicit, BNSF appears to insinuate that the
expert’s testimony makes Willis’s testimony wholly admissible about these questions. While the
expert’s testimony may give BNSF grounds for vigorous cross examination of Willis, it does not
go to admissibility. Willis may testify about the relative uses of force in the two methods of tying
a hand brake.
The questions whether this alternative method of tying a hand brake is “safer, or whether
the alternative method would have “prevented” Willis’s injury are questions of science and/or
medicine, quintessential subjects of expert opinion. Willis himself is unqualified to present such
testimony (FRE 701). Whether his expert’s testimony on those issues meets the requirements of
Daubert is another question. It is considered below.
XI. 20109 CLAIM
62-67. BNSF asks the Court to bar Plaintiff from offering any evidence of his “original or
amended whistleblower complaint” under 49 USC §20109 or any evidence of retaliation.
17
This case was filed on June 2, 2011. Before it was filed, Willis filed a “Whistleblower
Complaint” with OSHA. He amended that complaint on Nov. 1, 2011. On June 4, 2012, Plaintiff
filed a “Notice of Intention” to file that whistleblower complaint in District Court. At no time has
Willis filed such a claim in this case. In fact, his counsel objected to certain questioning at
Willis’s deposition, asserting that while the questioning was not relevant to the FELA claim, it
could be relevant to the “separate whistleblower claims….which are not part of this action.”
Willis states that he has no plan to present these allegations in this trial, although he
reserves his right to do so if BNSF opens the door. Because these claims are not part of this
litigation, neither party will be allowed to introduce such evidence. The motion is granted.
XII. ADVANCES
68-70. BNSF asks the Court to bar Plaintiff from offering evidence that BNSF paid him
advances for living expenses while he was working light duty or not working. BNSF made
certain advances, subject to the proviso that they were not an admission of fault or liability and
subject to the agreement that Plaintiff would re-pay the advances in the event of settlement or
verdict on his claim in this suit.
Willis states that he does not plan to present such evidence unless BNSF opens the door.
The motion is granted.
XIII. EXCLUSION OF EVIDENCE AND WITNESSES NOT PREVIOUSLY
DISCLOSED
71-75. BNSF asks the court to bar Plaintiff from offering into evidence any documents or
witness not disclosed pursuant to FRCP 26, unless they are used strictly and solely for
impeachment purposes.
This motion is specifically directed to Ruth Frese, Willis’s self-described “significant
other,” because she was not disclosed pursuant to FRCP 26. While it is generally true that
18
disclosure is required, Plaintiff points out that he was asked during his deposition whether he
discussed his shoulder discomfort with anyone. His response was to identify Ruth Frese.
A party must supplement or correct an earlier Rule 26(a) disclosure “in a timely manner
if the party learns that in some material respect the disclosure or response is incomplete or
incorrect, and if the additional or corrective information has not otherwise been made known to
the other parties during the discovery process or in writing.” FRCP 26(e)(1)(A).
Willis’s disclosure of Frese during his deposition satisfies his obligations under Rule 26.
To the extent that this motion is directed at Frese, and to the extent that her testimony relates
only to the subject[s] revealed during Willis’s deposition, the motion is denied. She is not barred
as a witness for this reason.
No other specific issues with non-disclosure have been identified. Plaintiff does not
oppose the concept that documents not previously disclosed can be used for impeachment only.
Obviously both parties are bound by the Rules. No ruling is required to enforce this proposition
in the general sense.
XIV. ADMISSIBILITY OF FRA REPORTS
76-78. BNSF asks the Court to bar Plaintiff from offering into evidence FRA Reports. Plaintiff
has obtained two documents reporting his injuries (1) SAF51658 – Supervisor’s Report of
Employee Injury or Illness; and (2) a printout of information taken from FRA Form F6180.55A.
Railroads are required to report monthly to FRA “all accidents and incidents resulting in
injury or death to an individual…” 49 USC 20901. Use of those reports is strictly limited:
No part of an accident or incident report filed by a railroad carrier under section 20901 of
this title or made by the Secretary of Transportation under section 20902 of this title may
be used in a civil action for damages resulting from a matter mentioned in the report.
19
49 USC §20903. The regulations governing the use of these reports include the following
language: “The Employee Human Factor Attachment, Notice, and Employee Supplement under
§ 225.12 are part of the reporting railroad's accident report to FRA pursuant to the 49 USC
20901” and fall with the scope of the prohibition of their use in civil matters. 49 CFR § 225.7. In
Villa v BNSF, 397 F3d 1041, 1047 (8th Cir 2005), the Court refused to extend the statutory
privilege to BNSF’s internal reports and forms. Accord, Kehdi v BNSF Railway Co., 2007 WL
2994600 (D OR). The Court has located no authority to the contrary.
The two documents Willis has obtained are not the FRA reports themselves. Section
20903 only protects the FRA reports themselves. The motion is denied.
XV. PLAINTIFF’S EXPERT GARY MALLEN
79-101. In this motion, BNSF asks the Court to bar all testimony from Plaintiff’s expert witness
Gary Mallen. In its clarification memo, BNSF states that all six of Mallen’s opinions were
rendered inadmissible by this Court’s summary judgment motion.
In its motion in limine, BNSF has argued about specific portions of Mallen’s testimony.
No challenge to his general qualifications was raised; where challenges were raised, they were
raised in the context of his qualifications to render a specific opinion. This Order shall not be
construed as a bar of all of Mallen’s testimony. The Court does not know (and cannot ascertain
without reading Mallen’s entire deposition testimony and analyzing the issue without briefing)
whether Mallen has testified about matters that were not challenged in this motion. Accordingly,
the scope of this part of the Order is strictly limited to the specific issues raised by BNSF in the
motion in limine.
An expert’s report must contain “a complete statement of all opinions the witness will
express and the basis and reasons for them,” as well as the witness’s qualifications, including a
20
list of all publications authored in the previous 10 years.” FRCP 26(a)(2)(B)(i), (iv). If the
expert’s opinions or qualifications as to a particular issue are not disclosed as required by Rule
26, the expert may not testify as to that issue unless the non-disclosure was “substantially
justified or is harmless.” FRCP 37(c)(1); Musser v Gentiva Health Services, 356 F3d 751 (7th
Cir 2004)3. An expert may not testify as to opinions that are new or that contradict those
expressed in his report, unless there is a substantial justification for interjecting those new
opinions at a late stage of litigation. See, for example, Salomon v Cincinnati Ins. Co., 2013 WL
3155405 (ND IN).
Gary Mallen states in his Report that he has spent over 19 years supervising Car
Department/Mechanical personnel:
on repair tracks shop area and in the field in the inspection and repair of rail cars,
including the inspection, repair and operation of rail car hand brakes based on FRA and
AAR Rules and Regulation. This also included personally assisting trainmen in yard
operations with hand brake issues. I was trained in the Dupont assisted safety processes
including but not limited to Safety Action Plans/Job Safety Analysis and the
responsibilities a Manager has with regard to safety.
Report, Exh. 9 to Motion in Limine (Doc. 69-9 at p.4). He states that he was retained for the
following purpose:
to express my professional mechanical opinion regarding the relevant physical condition
to rail car UCEX 2127 which existed and or contributed to the injuries sustained by the
Plaintiff on April 22, 2009 and to determine what preventative measures, if any, could
have or should have been taken by the Defendants to minimize the risk of an injury.
Id. at p.2.
3
The wording of FRCP 37(c) was amended after Musser. The re-wording did not affect the
viability of the holding in Musser.
21
Mallen’s Report includes a section titled “Observations and Conclusions” (Id at pp.8-9)
and another section titled “Opinions.” Id at p.9. The Observations and Conclusions section
includes the following statements (which the Court has numbered for the sake of efficiency):
1. BNSF was aware of chain binding, bunching and then brake slipping. They
advised employees of it in there [sic] rules and Mr. Willis’s supervisor was also
aware of it.
2. BNSF was aware of increased injuries while operating hand brakes prior to
April 22 of 2009.
3. Mr. Willis followed BNSF safety rules when applying the hand brake on rail
car UCEX 2127.
4. Mr. Willis followed the steps for applying the hand brake as viewed in the
DVD…and adopted by BNSF with the exception that he observed the hand brake
during operation and was not looking away from the hand brake.
5. The hand brake on rail car UCEX 2127 did not operate efficiently while Mr.
Willis was attempting to set the brake because the chain bound up and then the
wheel slipped. Testimony clearly reflects a hand brake is not supposed to act in
that manner.
6. At the time Mr. Willis was applying the brake and when the chain bound and
then the wheel slipped the hand brake was inefficient.
7. I have experienced hand brake chain bunching and wheel slip throughout my
railroad career. I have applied thousands of hand brakes. I have had the hand
brake perform efficiently after the chain bound and the wheel slipped in the same
fashion as occurred to the plaintiff. I have also had to bad order the hand brakes
for continued chain binding and wheel slip.
8. When I applied the hand brake on any type of car from the brake step and
ladder rung having a vertical wheeled hand brake I could not observe the chain
wrapping around the gear inside the hand brake. As you tighten up the hand
brake, the chain gets tighter and tighter. You have to assume its [sic] working
properly, then you cinch it down.
22
The Report discloses the following six opinions (which the Court has numbered for the
sake of efficiency):
1. Rail car UCEX 2127 was in violation of 49 USCA 20302(a)(1)(B) at the time
the plaintiff was applying the brake because it was inefficient and did not operate
by design.
2. Rail car UCEX 2127 was in violation of 49 CFR 213.1(a), 9 CFR 231.2(a) and
49 CFR 231.27(a)(1)(ii) because the hand brake did not operate efficiently when
it was applied by the plaintiff.
3. BNSF was, prior to the incident, well aware of chain binding, bunching and
wheel slip. They were also aware of increased hand brake incidents.
4. BNSF determined that the sole cause of this injury was overexertion on the part
of the plaintiff, [sic] however it was not proven and the plaintiff was proven to
have not violated any of BNSF’s rules.
5. Mr. Willis followed all BNSF rules and procedures when attempting to apply
the hand brake on UCEX 2127.
6. BNSF failed to provide the plaintiff with a reasonably safe work environment
in that they had prior knowledge of hand brake issues involving chain binding and
brake wheel slip [sic] and no steps were taken to prevent or minimize the
problem.
BNSF asks the Court to bar several categories of Mallen’s testimony. The first category
is all testimony regarding the “efficiency” of the hand brake. BNSF’s argument on this point
rests on the earlier grant of summary judgment in favor of BNSF as to the FSAA claim.
According to BNSF, the issue of “efficiency” is relevant only to the now-dismissed FSAA claim.
The issue has now dropped out of the case entirely, and Mallen’s opinions on this topic are no
longer relevant.
As the Court explained in the summary judgment order of March 13, 2013 (Doc. #55),
the FSAA requires (as is pertinent here) that all railroad cars be equipped with “efficient” hand
23
brakes, which means that they are “adequate in performance; producing properly a desired
result.” Plaintiff had produced no evidence that the hand brake was not efficient, because it
operated on the date in question as it normally did. The fact that slippage occurred on that date
was not unusual; for the chain in the hand brake to bind up and then slip was a common and
well-known occurrence. Slippage was not due to a defect or a lack of efficiency. That finding
precluded the FSAA claim, and summary judgment was granted in favor of BNSF on that claim.
That finding did not, however, preclude the FELA claim, because what FELA requires is a safe
workplace, and if a piece of equipment routinely and normally operates in a dangerous way, then
that could be reasonably construed as negligence, which is actionable under FELA.
The issue in this FELA trial will be the safety of the workplace, given the fact that the
hand brake routinely slipped. The issue will not be whether this slippage was “inefficient;” that is
the very issue the Court has already decided. No witness will be able to characterize the
operation of the hand brake as “inefficient.” That does not mean that witnesses will be precluded
from testifying about the tendency of the hand brake to slip or from describing what happens
when it slips. It simply means that “efficiency” is not an issue and testimony on it will not be
allowed.
That holding precludes Gary Mallen’s opinions, conclusions and testimony regarding
“efficiency”. Accordingly, any of Mallen’s testimony based on Conclusions 5 and 6 and on
Opinions 1 and 2 of his Report, is barred.
The second category of Mallen’s testimony that BNSF challenges is his testimony about
BNSF’s training of Willis. None of the Conclusions or Opinions deal with BNSF’s training of
Willis. Despite the failure to disclose such opinions, Mallen testified at his deposition that BNSF
could have offered additional training to Willis, which would have possibly prevented this
24
injury. His testimony about training is not allowed because he failed to disclose an opinion about
it in his Report.
In addition to that very basic reason, Mr. Mallen is unqualified to testify about Willis’s
training. When questioned, Mallen stated that he has never been a conductor, did not know what
training is offered to conductors, and did not know anything about the training Willis received.
(Mallen Deposition at 47-48). He concluded by saying that he “assume[d] that …he’s trained on
… how to operate a hand brake, what to look for, you know initially for something wrong with
the hand brake.” (Id at 51). Nothing in Mallen’s curriculum vitae would supplement the lack of
knowledge demonstrated by this interchange. This testimony is nothing more than unscientific
speculation, see, Cummins v Lyle Industries, 93 F3d 362 (7th Cir 1996). Mallen may not testify
about Willis’s training specifically or about training generally.
BNSF also challenges Mallen’s deposition testimony about the design of the hand brake.
No Conclusion or Opinion in his Report mentions anything about the design of the hand brake.
Once again, for that reason alone this testimony is barred. Additionally, Mallen admitted in his
deposition that he has no expertise in the design of hand brakes for railcars (Dep. 7-74). His
curriculum vitae reveals no background in engineering or any other helpful scientific design field
that would qualify him to testify about the design. He is a mechanic, trained in repair, inspection
and operation of, inter alia, hand brakes. Nothing in his experience deals in any way with the
underlying design. This is not to be construed as a ruling that Mallen cannot testify about the
undisputed facts that the chains in hand brakes often bound up or that the wheel slipped when
that happened; it simply means that he is not qualified to testify that there was some flaw in the
design of the hand brake.
25
There is another reason Mallen’s testimony regarding design is barred. Even if the Court
were to assume that he was qualified to testify on this issue and that his report had included an
opinion on this question, an expert may not give such testimony when the design in question
meets federal requirements. See, e.g., McGinn v Burlington Northerns Railroad Co., 102 F3d
295 (7th Cir 1996); Oglesby v Delaware and Hudson Railway Co., 180 F3d 458 (2d Cir 1999);
Sindoni v Consolidated Rail Corp., 4 FSupp2d 358 (MD PA 1996); Ferren v National Railroad
Passenger Corp., 2001 WL 1607586 (ND IL). Mallen’s testimony provides no evidence (and
Plaintiff has provided none) that the hand brake was deficient under the applicable federal
regulations (49 CFR 231.1, 231.2 and 231.27). In the absence of such evidence, Mallen may not
testify that the hand brake’s design fell short. Such testimony is barred as precluded by the
federal standards applicable.
For any and all of these reasons, Mallen’s testimony about design is barred as failing to
meet the requirements of the Federal Rules of Civil Procedure, the Federal Rules of Evidence,
Daubert, and federal law.
BNSF next asserts that Mallen relied on improper materials. The rules of evidence allow
an expert to rely on inadmissible evidence, but the evidence must be a type of evidence on which
“experts in the particular field would reasonably rely.” FRE 703. Moreover, any such
inadmissible facts on which an expert relies “may not be disclosed to the jury … unless the court
determines that their probative value in assisting the jury to evaluate the expert’s opinion
substantially outweighs their prejudicial effect.” Id.
In his deposition, Mallen referenced several documents that he had found on the internet.
These documents included BNSF Employee Safety Programs, which he described as talking
about BNSF’s “35 full-time safety managers who develop and oversee a system wide safety
26
process, which to me sounds very similar to the E.I.du Pont process.” He went on to describe
what the document called BNSF’s “closed-loop safety process, a systematic process for
identifying … and eliminating at-risk work behaviors and environmental concerns at each BNSF
location by using work practices observations and strategic interventions..” Mallen himself
referred to this process as “safety audits.” (Mallen Dep. at p.52-54).
He also testified that he relied on internet materials from a diesel shop in Nebraska,
which during his deposition he agreed would not apply to conductors. Id at 55. He then located
on the internet the BNSF Employee Magazine of Team, dated May/June 2008 that related back
to the diesel shop and that discussed overexertion from operating hand brakes. Although he
stated at first that this suggested BNSF was conducting safety audits, he concede that he had not
reviewed any detail that said they did. He said that the statistical information he received from
BNSF before Willis’s injury that indicated safety audits had never been conducted as to hand
brakes, even though setting hand brakes is done all over the country on a daily basis. He
suggested that maybe BNSF should have done that and then determined that if a hand brake
shows slippage, the railcar should be taken out of service. He then acknowledged that this has
happened nowhere in the industry because it would “tie up half the cars in the country.”
BNSF asserts first that the materials relied on by Mallen to opine on “safety audits” are
not “reputable in the field of safety expertise” and do not provide authority for such opinions. In
addition, BNSF points out that Plaintiff did no discovery on “safety audits,” so Mallen would
have no factual basis for claiming that the protocol was inadequate.
The first and most significant Daubert factor is whether a scientific theory has been
subjected to the scientific method. There is nothing Mallen’s testimony on the issue of safety
audits that remotely approaches a scientific method in the first place. To opine on a BNSF’s
27
safety protocol by reading a few internet documents, without reviewing (or even seeking4) any
documents or statistics about the safety protocol is to speculate. Mallen may not testify about
BNSF’s safety audits or safety protocol.
Next BNSF challenges Mallen’s deposition testimony referring to the fact that other
people had incurred injuries tying down hand brakes. His Report includes both Conclusions and
an Opinions that BNSF was aware of the slippage and of resulting injuries. As a long-time railcar
mechanic involved in accident investigations, it is probable that Mallen has come across other
injuries that were somehow connected to hand brakes. If he has such personal knowledge, he
may certainly rely on that knowledge in support of an opinion. The fact that he did or did not
have statistical information about whether any such injuries at BNSF is a matter for cross
examination; it does not go to admissibility or qualifications under Daubert. To that extent the
motion is denied.
Entered: October 2, 2013
s/ John A. Gorman
John A. Gorman
U.S. Magistrate Judge
4
Willis argues that BNSF has produced no evidence that it conducted safety audits, but BNSF
asserts that Willis did no discovery on safety audits. The burden of proof rests with Plaintiff; if
there was no discovery on this question, then the lack of documentation is Plaintiff’s problem in
proof, not BNSF’s problem in defense.
28
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?