English v. BNSF Railway Company et al

Filing 177

FINAL PRETRIAL ORDER. Signed by Judge Brian Morris on 11/5/2020. (SLR)

Erik B. Thueson
P. O. Box 280
Helena, MT 59624-0280
Telephone: [phone]
[e-mail]
Scott Peterson
P. O. Box 557
Helena, MT 59624
Telephone: [phone]
[e-mail]
Attorneys for Plaintiff Francis E. English
Michelle T. Friend/Ben Rechtfertig
2800 Central Ave., Ste. C
Billings, MT 59102
Telephone: [phone]
[e-mail]
[e-mail]
Dale Schowengerdt
900 N. Last Chance Gulch
Helena, MT 59601
Telephone: [phone]
[e-mail]
Attorneys for Defendant BNSF Railway Company
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
FRANCIS E. ENGLISH,
Case No. CV-18-77-GF-BMM
Plaintiff,
v.
FINAL PRETRIAL ORDER
BNSF RAILWAY COMPANY,
Defendant.

INTRODUCTION
This matter is before the Court at a final pretrial conference held pursuant to
Rule 16 of the Federal Rules of Civil Procedure.
PLAINTIFF’S COUNSEL:
Erik B. Thueson
P. O. Box 280
Helena, MT 59624-0280
Telephone: [phone]
[e-mail]
Scott Peterson
P. O. Box 557
Helena, MT 59624
Telephone: [phone]
[e-mail]
DEFENDANT’S COUNSEL:
Michelle T. Friend/Ben Rechtfertig
2800 Central Ave., Ste. C
Billings, MT 59102
Telephone: [phone]
[e-mail]
[e-mail]

Final Pretrial Order - Page 2

I. NATURE OF THE CASE
Plaintiff sues defendant, his former employer, for damages resulting from
his termination from employment. He makes state law claims for mismanagement;
infliction of mental distress; and for punitive damages.

Defendant disputes Plaintiff’s claims.
II. JURISDICTION
Not disputed. Jurisdiction is proper based on diversity of the parties.
III. JURY OR NON-JURY
Non-jury.
IV. AGREED FACTS
1.

Plaintiff Frank English was born on April 27, 19**.

2.

Mr. English was employed at BNSF from July 4, 2005 to September

14, 2016. He worked primarily as a locomotive conductor. He worked out of
Havre, Montana.
3.

Mr. English was a member of the SMART Transportation Division

Union.
4.

BNSF terminated Mr. English’s employment on September 14, 2016.

Final Pretrial Order - Page 3

5.

On May 21, 2018, BNSF removed to federal court on the ground of

complete diversity.
V. ELEMENTS OF LIABILITY
A.

PLAINTIFF
1. BNSF’s conduct occurring on one or more of the five infractions
constitute negligent or intentional mismanagement under § 39-2-703,
MCA?
2. BNSF’s overall conduct in terminating Mr. English constitutes negligent
or intentional mismanagement under §703, supra.
3. BNSF caused, either negligently or intentionally, Mr. English to suffer
severe mental distress.
4. BNSF’s fraudulent or intentional misconduct merits the award of
punitive damages under § 27-1-220, MCA, et. seq.
5. As a result of BNSF’s violation of state law, Mr. English suffered
compensatory damages, including emotional suffering, loss of earning
capacity, loss of earnings, alteration of established course of life and
other types of damages authorized under Montana law and shown by the
evidence, including punitive damages.

Final Pretrial Order - Page 4

6. There are several pretrial motions currently before the Court which may
affect these elements.
B.

DEFENDANT
Defendant disputes Plaintiff’s claims. None of its actions constitute

mismanagement as a matter of fact or law. BNSF made reasonable employmentrelated decisions regarding Plaintiff. These decisions were based on a reasonable
interpretation of BNSF’s policies and practices and were not arbitrary, capricious,
unreasonable, or made in bad faith, but rather were reasonable and based on
substantial evidence. Plaintiff was dismissed for cause for a legitimate reason
pursuant to his collective bargaining agreement.
Plaintiff’s claims under § 39-2-703, MCA, are unconstitutional as applied in
this case and violate the equal protection clause. Plaintiff’s claims are also
preempted under federal law, in particular the Railway Labor Act, 45 U.S.C. § 151,
et. seq., which deprives the Court of subject matter jurisdiction. Additionally, the
RLA requires deferral to the Public Law Board for interpretation of the controlling
Collective Bargaining Agreement. Thus, all or part of Plaintiff’s claims are barred
by arbitration and award. Plaintiff’s claims are also preempted under the Federal
Railroad Safety Act, Railroad Safety Improvement Act, the Hours of Service Act,
49 U.S.C. §§ 21101, et. seq., or other federal law, statutes, or regulation.

Final Pretrial Order - Page 5

Plaintiff originally filed suit asserting a claim only with respect to his nowdismissed fifth disciplinary event. Plaintiff’s claims are barred by the two-year
statute-of-limitations.
Plaintiff’s claims are also barred by the doctrines of waiver, laches,
collateral estoppel, res judicata, and release. Plaintiff appealed his last two
infractions to the Public Law Board, which upheld his discipline, finding: “The
Carrier has the right to expect employees in Claimant’s circumstance to be
available for call when needed, and an employee’s unavailability for call
negatively impacts the Carrier’s operations. After careful deliberation, the Board
finds that the dismissal assessed here was consistent with the Carrier's PEPA
Policy and that it was within the Carrier’s prerogative.” Plaintiff should be bound
by that determination. Additionally, Plaintiff agreed to waivers for the first three
infractions, which was a compromise or settlement of the issue. Further the ability
and right to a waiver is governed and provided by a CBA, so it is also preempted
by the RLA.
Plaintiff’s contributory or comparative fault reduces or bars any recovery.
His claims are also barred by assumption of risk. Plaintiff’s damages must also be
limited based on his failure to mitigate damages. Plaintiff further has no right to
reinstatement and cannot use his railroad earnings as a basis for damages as the
Public Law Board upheld his dismissal.
Final Pretrial Order - Page 6

Plaintiff fails to state a claim for Negligent or Intentional Infliction of
Emotional Distress and cannot meet the standard for a stand-alone emotional
distress claim. In addition, he had preexisting conditions related to these claims.
Plaintiff is not entitled to an award of punitive damages as it is preempted
under federal law, and, moreover, imposition of such would violate the Railway
Labor Act, Montana statutory law and BNSF’s substantive due process rights
under the Fourteenth Amendment to the U.S. Constitution and the Montana
Constitution Art. II, § 16, 17, and 22. BNSF did not act with fraud, malice or
reckless indifference and punitive damages are not appropriate under the facts of
this action.
VI. RELIEF SOUGHT
1.

Loss of earnings and earning capacity: approximately $1.5 million

2.

Emotional distress: $1million

3.

Punitive damages: $20,000,000
Defendant requests that Plaintiff’s claims be dismissed and that he be

awarded nothing.
VII. LEGAL ISSUES
The issues at trial will depend upon the issues resolved by pretrial motions.
The Court has indicated rulings will have been made on these pretrial motions by
approximately November 1, 2020.
Final Pretrial Order - Page 7

All issues as set forth above and those that may arise during trial.
VIII. DISMISSALS
The plaintiff will dismiss his allegations regarding the fifth infraction on
August 15, 2016. He may dismiss the first infraction, pertaining to the calculation
of his alleged rolling period violation, which constituted his first infraction.
IX. DISCOVERY DOCUMENTS
A.

PLAINTIFF
1.

See Exhibit Lists attached hereto.

2.

Defendant’s Answers to Interrogatory Nos. 1, 2, 4, 5, 6, 7, 8, 9, 10,

11, 13, 14, 15, 16 (plus Science of Sleep & Fatigue and TY&E Attendance
Guidelines Training (July 2015).
3.

Defendant’s responses to Request for Admission Nos. 1, 2, 3, 4 and 5.

4.

Defendant’s Responses to Requests for Production Nos. 3, 4, 5, 6, 7,

8, 9, 10, 12, 13, 14, 15, 16, 17, 18, 19, 21, 23, 24, 25, 26, 27, 28, 29, 30, 32, 33, 34.
5.

Defendant’s Second Supplemental Rule 26 Initial Disclosure.

Final Pretrial Order - Page 8

B.

DEFENDANT
Defendant may submit Plaintiff’s Responses to Interrogatories and Requests

for Admission.
X. ESTIMATED TIME OF TRIAL
A.

PLAINTIFF
Not including opening statement or closing argument, plaintiff estimates he

will be able to put on his evidence in two days or less. He intends to call 14
witnesses. All will be trainmen who work or have worked for BNSF. Their
testimony will be based on their experience as trainmen. Plaintiff’s Witness Lists
are attached.
The plaintiff estimates it will take less than half a day to present evidence
relevant to the Court’s determination of punitive damages.
B.

DEFENDANT
Defendant estimates it will take two days or less to present its case,

particularly given that some testimony will be submitted via deposition. Because
the parties are filing proposed findings of fact and conclusions of law, as well as
post-evidentiary filings, Defendant does not believe extensive opening statements
or closing arguments are necessary.

Final Pretrial Order - Page 9

Defendant estimates it will call 9 witnesses live or via video conference, and
others by deposition. Defendant’s Witness Lists are attached.
A separate hearing must be held on the issue of punitive damages, only if
there is a liability finding by the Court.
XI. SUPERSESSION

This Order supersedes the pleadings.
DATED this 5th day of November, 2020.

Approved as to form and content:

/s/ Erik B. Thueson
Attorney for Plaintiff Francis English

/s/ Michelle T. Friend
Attorney for Defendant BNSF

Final Pretrial Order - Page 10