Frost v. BNSF Railway Company

Filing 63

ORDER denying 36 Motion to Bifurcate; granting in part and denying in part 38 Motion in Limine; granting in part and denying in part 39 Motion in Limine; denying 42 Motion to Strike ; denying 54 Motion for Extension of Time to Complete Discovery; granting in part and denying in part 26 Motion to Compel; granting in part and denying in part 28 Motion for Protective Order; denying 30 Motion for Partial Summary Judgment. Signed by Judge Donald W. Molloy on 10/31/2016. (DLE)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

MICHAEL A. FROST,

CV 15–124–M–DWM

Plaintiff,
vs.

ORDER

BNSF RAILWAY COMPANY,
Defendant.

Pending before the Court are Defendant BNSF’s Motion for a Protective
Order (Doc. 28), Motion for Partial Summary Judgment (Doc. 30), Motion to
Bifurcate (Doc. 36), Motion in Limine (Doc. 38), and Motion to Strike (Doc. 42).
Also pending are Plaintiff Michael Frost’s Motion to Compel (Doc. 26), Motion in
Limine (Doc. 39), and Motion to Extend the Discovery Deadline (Doc. 54). A
hearing was held on the motions on October 26, 2016.
BACKGROUND
Plaintiff Michael Frost (“Frost”) is an employee of BNSF and was at all
times relevant to this action a member of the Brotherhood of Maintenance of Way
Employees Union. (Doc. 47 at ¶¶ 1-2.) The Union has a collective bargaining
agreement with BNSF, which includes various rules regarding per-diem, travel
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expenses, and overtime payments. (Id. at ¶ 3.) Pursuant to Federal Railroad
Administration regulations, 49 C.F.R. § 225.33(a)(1), BNSF maintains an Internal
Control Plan which sets forth BNSF policy regarding accident and injury reporting
by BNSF employees. (Id. at ¶ 4(f); Doc. 32 at 37.)
On April 18, 2012, Frost labored with a steel gang near Brimstone,
Montana. (Doc. 47 at ¶ 5). A train sped through adjacent to the track on which
his crew was working, narrowly missing him. (Id. at ¶ 6.) Frost alleges he was
injured by this near miss, and that railroad officials delayed taking him to a
medical examination he requested while they took statements and carried out other
procedures. (Id. at ¶¶ 8, 9.) BNSF alleges it insisted Frost be medically evaluated.
( Id.) In any event, an assistant foreman drove Frost to the hospital minutes after
the near-miss. (Id. at ¶ 9.) There Frost asserts he was diagnosed with early signs
of Post-Traumatic Stress Disorder. (Id. at ¶ 60.) Frost claims he requested
counseling, but was not provided any. (Id. at ¶ 10.) However, both parties agree
that BNSF did refer him to its Employee Assistance Program (“Assistance
Program”). (Id. at ¶ 11.) Frost claims the Assistance Program initially provided
him with a wrong number for the doctor it recommended, but both parties again
agree that after Frost requested a second referral BNSF provided a list of doctors
and numbers to call. (Id. at ¶ 12.) Frost did not contact any of these providers.
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(Id. at ¶ 13.) Frost asserts this decision resulted from being too geographically
distant from the providers. (Id.)
BNSF subsequently served Frost with a Notice of Investigation dated April
20, 2012. (Id. at 15.) The Notice informed him an investigation into the April 18
near-miss had been scheduled “for the purpose of ascertaining the facts and
determining [his] responsibility, if any, in connection with your [Frost’s] alleged
fouling the track.” On April 23, 2012, Frost completed a BNSF employee
personal injury/occupational illness report. (Id. at ¶ 14.) In it, he described his
injuries from the near-miss as “PTSD following [a] traumatic incident.” (Id.)
After a BNSF investigatory hearing on July 11, 2012, BNSF notified Frost
he had been found in violation of BNSF Maintenance of Way Operating Rules
1.20 (Alert to Train Movement) and 12.1 (Occupying Track Adjacent to Live
Tracks) and assessed a 30-day record suspension and 36-month review period.
(Id. at ¶ 18.) On October 9, 2012, Frost, having retained counsel, filed a complaint
with the Occupational Safety and Health Administration (“OSHA”). (Id. at ¶ 28.)
The complaint alleged BNSF retaliated against him in violation of the Federal
Railroad Safety Act after he sought medical treatment and reported his injury
following the near-miss. (Id. at ¶ 95.) Frost filed an amended complaint with
OSHA on January 13, 2014. (Id. at ¶ 28.)
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On November 12, 2012, BNSF served Frost with another Notice of
Investigation, this one related to an incident in Wyoming in which Frost
“alleged[ly] foul[ed] main track without knowledge of any track authority by
setting onto main track BNSF 23001 Grapple Truck and then questioning what the
authority was after the fact.” (Id. at ¶ 20.) After an investigatory hearing on
January 30, 2013, BNSF dismissed Frost from its employment with a letter dated
February 22, 2013. (Id. at ¶ 22.) On May 17, 2013, BNSF reinstated Frost with
back pay, and Frost signed a Reinstatement Letter. (Id. at ¶ 24.) The discipline
related to the near-miss of April 18, 2012, was removed from Frost’s employment
record. (Id. at ¶ 27.)
Frost filed this action on September 24, 2015. (Doc. 1.) He alleges BNSF
violated the Federal Railroad Safety Act, 49 U.S.C. § 20109, by retaliating against
him for engaging in the protected activity of requesting medical attention
following the near-miss, requesting counseling, making reports regarding what he
believes were BNSF safety violations, and filing a claim with OSHA. (Id. at 11.)
He requests compensatory, emotional distress and anguish, loss of past and future
income, and other damages. (Id. at 12.) He also requests an award of punitive
damages. (Id. at 13.)
I.

BNSF’s Motion for Summary Judgment
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Summary judgment is appropriate when there are no genuine issues of
material fact and the moving party can demonstrate it is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(a). “Only disputes over facts that might affect
the outcome of the suit under the governing law will properly preclude the entry of
summary judgment. Factual disputes that are irrelevant or unnecessary will not be
counted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
BNSF moves for partial summary judgment on four of Frost’s Federal
Railroad Safety Act claims: (1) Frost’s claims for per diem, travel expenses, and
overtime pay; (2) Frost’s claim for punitive damages; (3); Frost’s claims arising
from his 2013 discipline; and (4) Frost’s claim that BNSF interfered with or
delayed his medical treatment. (Doc. 30 at 2.) That motion is denied.
A.

Per diem, travel expenses, and overtime pay

BNSF argues for summary judgment on Frost’s claims for per diem, travel
expenses, and overtime pay because (1) the Railway Labor Act preempts Frost’s
claims. (Doc. 34 at 3), (2) the damages are not reasonably ascertainable and are
speculative. (Id. at 6), and (3) the claims are precluded by accord and satisfaction.
(Id. at 7.) BNSF’s arguments are unsuccessful.
1.

Railway Labor Act preemption

The Railway Labor Act, 45 U.S.C. §§ 151-88, establishes mandatory
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administrative procedures for two classes of labor disputes: major disputes and
minor disputes. Hawaiian Airlines v. Norris, 512 U.S. 246, 252 (1994). Major
disputes concern “the formation or negotiation of collective bargaining
agreements.” Id. Minor disputes concern “‘controversies over the meaning of an
existing collective bargaining agreement in a particular fact situation.’” Id. at 253
(quoting Bhd. of R. R. Trainmen v. Chi. River & Ind. R. R. Co., 353 U.S. 30, 33
(1957). BSNF and Frost agree that whether his claim for per diem, travel pay, and
overtime pay are preempted by the Railway Labor Act hinges on whether their
depends on an interpretation of the Collective Bargaining Agreement. (Doc. 46 at
5; Doc. 56 at 3.) This is because the Railway Labor Act preempts as minor
disputes those arising exclusively from a collective bargaining agreement. Espinal
v. Nw. Airlines, 90 F.3d 1452, 1456 (9th Cir. 1996). On the other hand, “[t]hose
claims or causes of action involving rights and obligations that exist independently
of the [collective bargaining agreement] are not preempted.” Id. (citing Norris,
512 U.S. at 256).
Frost argues the right he seeks to enforce arises under the Federal Railroad
Safety Act, 49 U.S.C. § 20109, not from the Collective Bargaining Agreement or
the Railway Labor Act. (Doc. 46 at 4.) The Federal Railroad Safety Act provides
as a remedy to a prevailing employee in an enforcement action “all relief necessary
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to make the employee whole” as well as “compensatory damages, including
compensation for any special damages sustained as a result of the discrimination.”
49 U.S.C. § 20109(e)(1),(2). BNSF argues that the Collective Bargaining
Agreement governs a workers’ entitlement to per diem, travel expenses, and
overtime pay, and points out that the Agreement contains rules pertaining to those
topics. (Doc. 34 at 5). Frost disputes this assertion “to the extent it implies that
the collective bargaining agreement governs” his per diem, travel expenses, and
overtime payments claims. (Doc. 47 at ¶ 3.) The Federal Railroad Safety Act’s
provision of independent recovery undermines BNSF’s argument that the
Collective Bargaining Agreement is the exclusive source of Frost’s claims.
Simply showing that the Collective Bargaining Agreement has rules relating to
those claims does not demonstrate those rules are exclusive. (Doc. 32 at 24-27.)
2.

Calculation of damages

BNSF attacks the manner in which Frost calculated his per diem payments
because he did not take into account the money he saved on those expenses by not
working, and attacks his method of calculating travel expenses because it is based
on the amounts earned by a coworker. (Doc. 34 at 6.) Contrary to BNSF’s
position, a plaintiff does not need to calculate damages with absolute precision;
instead, that calculation may be approximate as a matter of “just and reasonable
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inference.” Pac. Shores Prop., LLC v. City of Newport Beach, 730 F.3d 1142,
1170-72 (9th Cir. 2013) (citing Story Parchment Co. v. Paterson Parchment
Paper Co., 282 U.S. 555, 563 (1931). Moreover, the question of the amount of
perdiem, travel expenses, and overtime pay might total is one of fact. Summary
judgment on these grounds is inappropriate.
3.

Accord and satisfaction doctrine

Finally, BNSF argues Frost’s claims to per diem, travel, and overtime
expenses are precluded by the doctrine of accord and satisfaction. (Doc. 34 at 7.)
BNSF asserts that when Frost signed the Reinstatement Letter agreeing to payment
“to be made whole for any time lost,” he accepted that settlement in lieu of any
other legal “debt” BNSF may have owed him. Id. Frost argues the Reinstatement
Letter did not extinguish all his claim because (1) the terms of the Reinstatement
Letter limit its scope to Frost’s labor relations grievance process and not Frost’s
claims under the Federal Railway Safety Act, (Doc. 46 at 7, 9), and (2) BNSF
acknowledged that it did not have the legal right under the Collective Bargaining
Agreement to have disciplined Frost, and so could not provide valuable
consideration for the release. (Id. at 9.) “Under federal law, a valid release must
be supported by consideration.” Salmeron v. United States, 724 F.2d 1357, 1362
(9th Cir. 1983). “It is elementary law that giving a party something to which he
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has an absolute right is not consideration to support that party’s contractual
promise.” Id. Frost shows genuine issues for trial, namely how the letter should
be interpreted and its legal sufficiency as an accord and satisfaction, making
summary judgment inappropriate.
B.

Punitive damages

While the Federal Railroad Safety Act provides for punitive damages, it
does not specify the standard for awarding those damages. 49 U.S.C. §
20109(e)(3). Frost argues that in the context of employment discrimination,
punitive damages are justified where the employer “discriminate[s] in the face of a
perceived risk that its actions will violate federal law.” Swinton v. Potomac Corp.,
270 F.3d 794, 810 (9th Cir. 2001) (citing Kolstad v. Am. Dental Ass’n, 527 U.S.
526, 534 (1999)). BNSF, on the other hand, maintains the correct standard is
whether the employer acted with reckless or callous disregard for the plaintiff’s
rights or intentionally violated federal law. BNSF Ry. Co. v. U.S. Dep’t of Labor,
816 F.3d 628, 642 (10th Cir. 2016). Under either standard, however, the nature of
BNSF’s conduct must still be determined by a finder of fact. For instance, Frost
points to what he argues is disparate discipline following the near-miss, where
Frost was disciplined but other BNSF employees who were also close to the
oncoming train were not. (Doc. 46 at 11-12). Disparate treatment and retaliation
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are at the heart of Frost’s claim, and Frost’s assertions, supported by the record,
preclude summary judgment.
C.

February 22, 2013 discipline and dismissal

Under the Federal Railroad Safety Act, an employee must file an
administrative complaint no later than 180 days after the date of the alleged
violation. 49 U.S.C. § 20109(d)(2)(A)(ii). Frost filed an amended complaint on
January 13, 2014, more than 180 days after February 22, 2013. In the analogous
context of a Title VII action, “a plaintiff who complains of more than one
discriminatory or retaliatory act must timely exhaust administrative remedies as to
each.” Finley v. Salazar, 2013 WL 1209940, at *2 (D. Mont. Mar. 25, 2013)
(citing N’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002). However,
“for retaliation claims based on the filing of a complaint . . . administrative
exhaustion is not required and subject matter jurisdiction before the district court
exists where the retaliation claim is reasonably related to the administrative
complaint.” Id. (citing Vasquez v. Cnty. of L.A., 349 F.3d 634, 644 (9th Cir.
2004). Frost’s October 9, 2012 OSHA complaint alleged BNSF had retaliated
against him by disciplining him after he sought medical care; his claims in the
instant action also allege retaliation, including that his February 22, 2013
discipline and dismissal was retaliatory. Frost’s current claims are “reasonably
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related” to the retaliation Frost alleged in his administrative complaint, and Frost’s
failure to file within 180 days is excusable.
D.

Interference with medical treatment

The Federal Railroad Safety Act prohibits a railroad from denying, delaying,
or interfering with the medical or first aid treatment of an injured employee. 49
U.S.C. § 20109(c)(1). Upon request, the railroad must promptly arrange the
transportation of an injured employee to the nearest hospital for treatment. Id.
Frost claims that BNSF denied him prompt treatment because he had to wait
approximately fifteen minutes after requesting medical treatment until a van
arrived to take him to the hospital, (Doc. 46 at 17; Doc. 47 at ¶ 58), and
subsequently interfered with his access to counseling by providing him with a
wrong number for a counselor and then with a list of providers who were not
within a reasonable distance from where his traveling crew was located, (Id.; Doc.
47 at ¶ 63). It is possible that a reasonable fact finder could conclude these actions
interfered with Frost’s medical treatment, making summary judgment
inappropriate.
II.

BNSF’s Motion to Bifurcate
BNSF moves to bifurcate the punitive damages from the rest of the trial.

(Doc. 36.) BNSF argues bifurcation will (1) avoid unfair prejudice to BNSF; (2)
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prevent the introduction of evidence that is irrelevant to the issues of liability or
compensatory damages but relevant to punitive damages; and (3) serve the
interests of judicial economy. (Doc. 37 at 3.) It further argues that trying punitive
damages separately from liability and compensatory damages will not unfairly
prejudice Frost. (Id.)
“For convenience, to avoid prejudice, or to expedite and economize, the
court may order a separate trial of one or more separate issues . . . [or] claims. . . .
When ordering a separate trial, the court must preserve any federal right to a jury
trial.” Fed. R. Civ. P. 42(b). Rule 42(b) “confers broad discretion upon the
district court to bifurcate a trial, thereby deferring costly and possibly unnecessary
proceedings pending resolution of potentially dispositive preliminary issues.”
Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1088 (9th Cir. 2002). “The burden
is on the moving party to show bifurcation is warranted.” Burton v. Mtn. W. Farm
Bureau Mut. Ins. Co., 214 F.R.D. 598, 612 (D. Mont. 2003).
BNSF argues a non-bifurcated trial creates a danger that the heightened
standard of proof required for punitive damages will be diluted by the lower
standard for liability and compensatory damages, thereby confusing the jury into
applying an inappropriately low punitives standard. (Doc. 37 at 4.) It further
argues that bifurcation will prevent the introduction of evidence that is relevant
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only to punitive damages. (Doc. 37 at 7.) Contrary to BNSF’s position, prejudice
can be avoided by the use of limiting instruction. Burton, 214 F.R.D. at 614.
Further, the evidence supporting BNSF’s liability and the potential award of
punitive damages is essentially the same: evidence which tends to show BNSF
retaliated against Frost after he engaged in protected conduct.
BNSF further insists bifurcation would serve the ends of convenience and
judicial economy, because the initial trial might obviate the need for a punitive
damages phase, sharpen the focus of a punitive damages phase if necessary, and
provide counsel with a clearer understanding of what can and cannot be argued at
the first trial. (Doc. 37 at 8.) Those reasons, however, do not outweigh the
potential time and cost involved in running two consecutive trials. It is also
difficult to imagine how bifurcation would provide counsel with a clearer idea of
what could be argued at trial. Instead, it would call for a potentially timeconsuming dissection of exactly what evidence might indicate BNSF acted badly
enough to trigger punitive damages under the Federal Railroad Safety Act.
BNSF’s motion to bifurcate is denied.
III.

BNSF’s Motion to Strike
BNSF seeks strike Frost’s expert witness, George Gavalla, arguing

Gavalla’s testimony has no relevance to this case, requires no expertise, is unfairly
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prejudicial to BNSF and confusing to the jury, and merely repeats what would
otherwise be inadmissible evidence. (Doc. 42.) Gavalla spent seven years as the
head of the Office of Safety for the Federal Railroad Administration, the office
responsible for overseeing railroads. (Doc. 51 at 2, 5.) Before serving at the
Office of Safety, Gavalla spent 18 years in the railroad industry, including time as
the Director of Research for the Brotherhood of Railroad Signalman. (Id. at 5.)
He also worked as a Safety Project Coordinator for the Federal Railroad
Administration. (Id.) Frost proposes to have Gavalla testify as to the importance
of railroad safety inspections, the enforcement of federal railroad regulation, the
purpose of and need for anti-retaliation regulation, and the importance of
employee injury reporting. (Id. at 2.) BNSF’s motion is denied.
“A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise” so long
as four factors are met–the expert’s specialized knowledge: (1) “help[s] the trier
of fact to understand the evidence or to determine a fact in issue, (2) is “based on
sufficient facts or data,” (3) is “the product of reliable principles and methods,”
and (4) has been “reliably applied” to the facts of the case. Fed. R. Evid. 702. To
be admissible, evidence must be relevant, Fed. R. Evid. 402, meaning it is both
material and probative, Fed. R. Evid. 401. Relevant evidence may be excluded if
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its probative value is substantially outweighed by prejudice, confusion, or waste of
time, inter alia. Fed. R. Evid. 403.
A.

Gavalla’s expert status and the relevance of his testimony

BNSF argues Gavalla’s opinions that retaliation and non-compliance with
the Federal Railroad Administration reporting requirements may chill reporting of
injuries and safety concerns are conclusions the jury would be able to reach on its
own, and are thus not expert opinions. (Doc. 43.) This argument overlooks
Gavalla’s extensive experience in the railroad industry and his corresponding
knowledge of matters beyond that of the layman. Railroad administration and
regulation are topics likely outside “the understanding of the average juror.”
United States v. Rahm, 993 F.2d 1405, 1412 (9th Cir. 1993). Properly bounded,
Gavalla’s testimony will leave for the jury the question of whether the BNSF
retaliated against Frost.
In a related argument, BNSF asserts Gavalla’s testimony is unrelated to the
facts of this case, and that therefore his testimony cannot be material. (Doc. 43 at
9.) BNSF cites to Gavalla’s deposition, wherein Gavalla states he “ha[s] not seen
any information regarding the specifics of [Frost’s] dismissal and BNSF’s actions
so [he is] not prepared to offer any opinions on that.” (Id. at 10.) BNSF also
argues Gavalla’s opinions do not relate to BNSF for any period of time relevant to
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this case, and that because he has not formed any opinions as to BNSF’s particular
behavior in this instance, or BNSF’s Internal Control Plan, his testimony should
be excluded. (Doc. 43 at 11.)
Gavalla’s testimony in a similar context has been addressed in Whitt v.
Union Pac. R. R. Co., where the plaintiff brought a Federal Railroad Safety Act
claim alleging the railroad delayed his access to medical care. 2014 WL 3943135,
*2 (D. Neb. Aug. 12, 2014). The Whitt court permitted Gavalla’s testimony
generally as to the safety rules and safety regulations that railroads are
required to implement, [the defendant railroad’s Internal Control Plan]
and its requirements, the importance of accurate reporting by railroads
and why the [Federal Railroad Administration] needs such accurate data,
the purpose of an [Internal Control Plan], categories of conduct that
violate [Federal Railroad Administration] regulations and [defendant
railroad’s Internal Control Plan], the reasons that accurate data may not
be reported and why the reporting of accurate data matters.
2014 WL 3943135, *3-4. The Whitt court also noted that “if Mr. Gavalla strays
too far from that which is relevant in this case, the defendant is free to object and
the Court will rule on the objection at that time.” Id. at *4. It also barred Gavalla
from testifying “that certain behaviors violated the federal law.” Id.
Here, it Gavalla is likewise allowed to testify generally regarding railroad
safety rules and regulations, the purpose and requirements of BNSF’s Internal
Control Plan, the importance of accurate injury reporting by railroads and the

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Federal Railroad Administration’s need for such data, categories of conduct that
violate Federal Railroad Administration regulations and the Internal Control Plan,
and reasons accurate injury data may not be reported. Gavalla will not be
permitted to testify as to whether BNSF violated any law or regulation in the
instant case. BNSF is free to object if Gavalla’s testimony strays from these areas.
It will be for the jury to assess his credibility, his biases, and the limits of his
knowledge by observing his testimony and any cross-examination BNSF conducts.
B.

The hearsay rule, character, and pattern and practice evidence

Finally, BNSF argues Gavalla’s testimony should be barred because it
repeats inadmissible hearsay evidence disguised as expert opinions. (Doc. 43 at
13.) Hearsay is a statement, not made at the current trial or hearing, offered by a
party for the truth of the matter the statement asserts. Fed. R. Evid. 801(c).
Hearsay is generally inadmissible. Fed. R. Evid. 802. However, “experts are
entitled to rely on hearsay in forming their opinions.” Carson Harbor Village,
Ltd. v. Unocal Corp., 270 F.3d 863, 873 (9th Cir. 2001) (citing Fed. R. Evid. 703,
United States v. McCollum, 732 F.2d 1419, 1422-23 (9th Cir. 1984)). Federal
Rule of Evidence 703 provides as follows:
An expert may base an opinion on facts or data in the case that the
expert has been made aware of or personally observed. If experts in the
particular field would reasonably rely on those kinds of facts or data in
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forming an opinion on the subject, they need not be admissible for the
opinion to be admitted. But if the facts or data would be otherwise
inadmissible, the proponent of the opinion may disclose them to the jury
only if their probative value in helping the jury evaluate the opinion
substantially outweighs their prejudicial effect.
Gavalla may therefore rely on hearsay in forming his opinions.
BNSF also asserts that, because Gavalla’s expert report includes other
administrative decisions, lawsuits, complaints, and OSHA findings and
investigations, his testimony constitutes impermissible character evidence. (Doc.
43 at 14.) BNSF is correct that “[e]vidence of a person’s character or character
trait is not admissible to prove that on a particular occasion the person acted in
accordance with the character or trait.” Fed. R. Evid. 404(a). However, Frost
wishes to introduce Gavalla’s testimony not to show BNSF acted “in accordance”
with a character trait, but to educate the jury about railroad regulation and
potential financial incentives (in other words, to provide circumstantial evidence
of motive). Further, “evidence of . . . an organization’s routine practice may be
admitted to prove that on a particular occasion the . . . organization acted in
accordance with the habit or routine practice.” Fed. R. Evid. 406.
Lastly, BNSF argues Gavalla’s opinions “are quintessential ‘pattern or
practice’ evidence, which is not admissible in Federal Rail Safety Act lawsuits.”
(Doc. 43 at 14.) To support this proposition, BNSF cites to an administrative
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decision which notes, among other things, that while the Federal Rail Safety Act
does not provide a “pattern and practice” cause of action, “[e]vidence of
widespread retaliation . . . could support Complainant’s claim for punitive
damages: It could show the Railroad’s conscious disregard of workers’ federal
statutory rights.” Jensen v. Union Pac. R. R. Co., 2011-FRS-00005, at 11 (ALJ
Aug. 19, 2011) (Doc. 43-10 at 11). Further, Frost alleges retaliation, not pattern
and practice. BNSF’s argument is unavailing.
IV.

Motions in Limine
A motion in limine is a procedural mechanism to limit in advance testimony

or evidence in a particular area. United States v. Heller, 551 F.3d 1108, 1111 (9th
Cir. 2009). Courts have “wide discretion” in considering and ruling upon
a motion in limine. Ficek v. Kolberg–Pioneer, Inc., 2011 WL 1316801, at *1 (D.
Mont. Apr. 5, 2011) (citing Trichtler v. Co. of Lake, 358 F.3d 1150, 1155 (9th Cir.
2004)). A court will grant a motion in limine and exclude evidence only if
the evidence is “inadmissible on all potential grounds.” BNSF Ry. v. Quad City
Testing Lab., Inc., 2010 WL 4337827, at *1 (D. Mont. 2010).
BNSF seeks to exclude fifteen categories of evidence at trial. (Docs. 38,
40), while Frost requests exclusion of all evidence related to the fact that Frost was

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still legally married at the time he began his relationship with his now girlfriend,
Laci Bogden, (Doc. 39). Each request is ruled on individually below.
A.

BNSF’s Motion

BNSF’s motion in limine is granted-in-part and denied-in-part, consistent
with the following:
BNSF’s category “I” seeks to exclude opinion testimony regarding BNSF’s
motive. (Doc. 38 at 2.) That request is granted to the limited extent that witnesses
may not testify as to what the BNSF organization thinks. BNSF’s category “IX”
seeks to exclude reference to plaintiff’s OSHA complaints and OSHA findings.
(Id.) That request is granted to the limited extent that legal conclusions within
plaintiff’s OSHA complaints and OSHA findings may not be introduced. BNSF’s
category XIII seeks to exclude counsel’s personal beliefs and feelings, (Id. at 3),
and is granted. BNSF’s category XV, (Id.), seeks to exclude any references to
Berkshire Hathaway, Warren Buffet, or BNSF’s financial condition, and is granted
as well.
BNSF’s requests regarding categories “VIII” and “XII” are denied, subject
to renewal at trial. BNSF’s remaining requests are denied.
B.

Frost’s Motion

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Frost seeks to exclude evidence that he was still legally married when he
began a relationship with Laci Bogden. (Doc. 39 at 2.) BNSF argues that the
timing of Frost’s divorce is relevant to Frost’s damage claims and the timing of
Frost’s relationship with Ms. Bogden is relevant to the foundation for her opinion
of his emotional distress. (Doc. 49.) Frost’s motion is granted to the extent BNSF
seeks to imply or suggest an inappropriate personal relationship between Frost and
Bogden.
V.

Frost’s Motion to Compel and BNSF’s Motion for a Protective Order
Frost moves to compel production of documents and responses to

interrogatories. (Doc. 26.) BNSF in turn moves for a protective order regarding
11 deposition topics identified by Frost in his Federal Rule of Civil Procedure
30(b)(6) notice of deposition. (Doc. 29 at 5.) Those motions are granted-in-part
and denied-in-part consistent with the explanation below.
Pursuant to Rule 26(b)(1) of the Federal Rules of Civil Procedure, “[p]arties
may obtain discovery regarding any nonprivileged matter that is relevant to any
party’s claim or defense and proportional to the needs of the case.” A court “must
limit the frequency or extent of discovery otherwise allowed” if it determines that
the discovery sought is “unreasonably cumulative or duplicative” or “outside the
scope permitted by Rule 26(b)(1),” or that “the party seeking discovery has had
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ample opportunity to obtain the information by discovery in the action.” Fed. R.
Civ. P. 26(b)(2)(c). “Based on the liberal discovery policies of the Federal Rules
of Civil Procedure, a party opposing discovery carries a ‘heavy burden’ of
showing why discovery should not be allowed.” Moe v. System Transport, Inc.,
270 F.R.D. 613, 618 (D. Mont. 2010) (citing Blankenship v. Hearst Corp., 519
F.2d 418, 429 (9th Cir. 1975)). The 2015 Amendment to Rule 26(b)(1)
emphasized the importance of proportionality in discovery requests. 2015
Committee Notes. However, the change was not “intended to permit the opposing
party to refuse discovery simply by making a boilerplate objection that it is not
proportional.” Id.
The discovery rules also provide that “[t]he court may, for good cause, issue
an order to protect a party or person from annoyance, embarrassment, oppression,
or undue burden or expense.” Fed. R. Evid. 26(c)(1). That protection can take the
form of “forbidding the disclosure or discovery” or “forbidding inquiry into
certain matters, or limiting the scope of disclosure or discovery to certain matters.”
Fed. R. Evid. 26(c)(1)(A),(D). “A party asserting good cause bears the burden . . .
of showing that specific prejudice or harm will result if no protective order is
granted.” Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1130 (9th Cir.
2003) (citing Phillips v. Gen. Motors, 307 F.3d 1206, 1212 (9th Cir. 2002)).
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A.

Frost’s Motion to Compel

Frost makes five requests in his motion to compel. Each request is
addressed below.
The motion is granted as to Frost’s first and second requests. (Doc. 27 at
19.) BNSF indicated at the motions hearing that the Personal Performance Index
cannot be produced because it does not exist as a document but rather as a matrix
or algorithm for computing an employee’s score. If for this reason the Personal
Performance Index does not exist or cannot be produced, BNSF is ordered to
produce a witness competent to testify as to the purpose and function of the Index.
Frost’s third request is granted-in-part. (Id.) BNSF shall produce any
documents, electronic or otherwise, from 2011-2013 related to a safety audit.
Frost’s fourth request is granted-in-part. (Id.) BNSF shall produce the
citations and defects which it received from January 1, 2011 through December
31, 2013 for the regions in which Frost worked during that time.
Frost’s fifth request is granted-in-part. (Id.) BNSF shall produce in
response to Frost’s Document Request No. 8 and Interrogatory No. 13 regarding
49 U.S.C. § 20109 related complaints, grievances, and lawsuits from 2011 to
present.
Frost’s motion is denied in all other respects.
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B.

BNSF’s Motion for a Protective Order

BNSF requests this Court forbid inquiry into 11 topics identified by Frost in
his Rule 30(b)(6) notice of deposition. (Doc. 28 at 2; Doc. 29 at 5.) These
requests are addressed below.
BNSF’s request regarding Frost’s notices nos. 3 and 4 is granted-in-part
because those topics are overbroad. The “not limited to” language is stricken, and
Frost’s inquiry is limited to the areas enumerated in the notices.
BNSF’s request regarding Frost’s notice no. 5 is granted-in-part because the
topic is overbroad. The topic is limited to BNSF’s policies and practices
preventing retaliation, harassment, or discrimination for an employee reporting
injury, and to complaints of retaliation, harassment or discrimination for reporting
an injury within the Montana division between January 2, 2011and January 1,
2016.
BNSF’s request regarding Frost’s notice no. 6 is granted-in-part because the
topic again is overbroad. The “including but not limited to” language is stricken,
and Frost’s inquiry is limited to the areas the notice enumerates.
BNSF’s request regarding Frost’s notice no. 9 is granted. Frost has not
advanced a claim under the Federal Employer’s Liability Act and so inquiries
about the effect of that law are not relevant. The topic would also require BNSF
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to speculate about the actions of the Federal Railroad Administration.
BNSF’s request regarding Frost’s notice no. 10 is granted-in-part. The
general effect of the Federal Railroad Administration’s oversight on BNSF’s
profits is an overbroad and vague topic. Frost may inquire as to the relationship
between Federal Railroad Administration oversight and injury reporting.
BNSF’s remaining requests are denied.
CONCLUSION
Consistent with the above,
IT IS ORDERED that BNSF’s Motion for Partial Summary Judgment (Doc.
30), Motion to Bifurcate (Doc. 36), and Motion to Strike (Doc. 42) are DENIED.
IT IS FURTHER ORDERED that BNSF’s Motion in Limine (Doc. 38) is
GRANTED-IN-PART and DENIED-IN-PART. Frost’s Motion in Limine (Doc.
39) is GRANTED-IN-PART and DENIED-IN-PART.
IT IS FURTHER ORDERED that Frost’s Motion to Compel (Doc. 26) is
GRANTED-IN-PART and DENIED-IN-PART. BNSF’s Motion for a Protective
Order (Doc. 28) is GRANTED-IN-PART and DENIED-IN-PART.
IT IS FURTHER ORDERED THAT Frost’s Motion to Extend the
Discovery Deadline (Doc. 54) is DENIED as moot.

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DATED this 31st day of October, 2016.

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