Wooten v. BNSF Railway Company

Filing 216

ORDER that the parties motions in limine to exclude or limit expert testimony and other evidence (docs. 151, 164, 166 & 168) are GRANTED IN PART and DENIED IN PART as set forth in the order. Signed by Magistrate Judge Jeremiah C. Lynch on 6/1/2018. (APP)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
ZACHARY WOOTEN,

CV 16-139-M-DLC-JCL
Plaintiff,

ORDER

v.
BNSF RAILWAY COMPANY,
Defendant.

During the motion hearing on May 22, 2018 and May 23, 2018, the Court
made several rulings from the bench. This Order memorializes the Court’s oral
rulings on the following motions: (1) Wooten’s motion to exclude or limit expert
testimony based on timeliness and sufficiency of expert disclosure (doc. 151); (2)
BNSF’s motions in limine concerning Wooten’s expert witnesses (doc. 164); (3)
BNSF’s motions in limine (doc. 166); (4) Wooten’s motions in limine (doc. 168).
I.

Plaintiff’s Motion to Exclude or Limit Expert Testimony (Doc. 151)
Wooten moves pursuant to Fed. R. Civ. P. 26 and 37 to exclude or limit

testimony by BNSF experts Brian Weaver and Grant Fredericks based on untimely
and/or expert reports and disclosure.

An expert witness disclosure must contain, among other things, “a complete
statement of all opinions the witness will express and the basis and reasons for
them; the data or other information considered by the witness in forming them;
[and] any exhibits that will be used to summarize or support them.” Fed. R. Civ. P.
26(a)(2)(B). Supplementation is required “if the party learns that in some material
respect the disclosure…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.” Fed. R. Civ. P. 26(e).
BNSF timely served Weaver’s report with its liability expert witness
disclosure on November 29, 2017, designating Weaver and Fredericks as retained
experts and providing their expert reports.
BNSF served a supplemental report and liability expert witness disclosure
for Weaver on March 19, 2018. Wooten argues Weaver’s supplemental report is, in
substance, a rebuttal expert witness report offered by BNSF to rebut the opinion of
Wooten’s retained expert, Dr. Toby Hayes. Because rebuttal expert witness
reports were due no later than December 29, 2017, Wooten argues Weaver’s
March 19, 2018 report is untimely. Wooten asks the Court to strike Weaver’s
March 19, 2018 report and limit Weaver’s testimony to the opinions contained in
his November 29, 2017, report. In response, BNSF argues that Weaver’s
supplemental report is not intended solely to contradict or rebut Hayes’ report, but
rather to clarify his own opinions in light of Hayes’ deposition testimony.
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On March 20, 2018, BNSF served a supplemental liability expert witness
disclosure for its forensic video analyst, Fredericks, stating that in addition to his
expected testimony consistent with his report and the attached videos, he will
testify to the foundation and authenticity of the videos produced in discovery.
Wooten argues that this supplemental disclosure is deficient because it was not
accompanied by a written report, and untimely because it constitutes rebuttal
testimony subject to the December 29, 2017, deadline for rebuttal expert witness
reports. As a result, Wooten asks the Court to preclude Fredericks from testifying
as to the foundation and authenticity of the videos. In response, BNSF argues that
the fact-based foundational testimony Fredericks may provide at trial does not
constitute expert opinion subject to the Rule 26(a)(2) reporting and disclosure
requirements. BNSF contends Wooten’s objections to the foundation and
authenticity of the video are properly addressed at trial.
At the motion hearing on May 22, 2018, the Court made clear that all expert
witness testimony for both parties, including testimony by BNSF experts Weaver
and Fredericks, will be limited to the opinions set forth in their initial reports, and
proper rebuttal reports. This limitation applies equally to Wooten’s expert Levoy
Little, who BNSF argues should not be allowed to testify to opinions expressed at
his deposition but not contained in his written report. (Doc. 138). With this
understanding, Wooten’s motion is effectively moot.

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II.

BNSF’s Motions in Limine Concerning Plaintiff’s Expert Witnesses
(Doc. 164)
A.

Gavalla

BNSF moves in limine to prohibit Wooten from introducing George
Gavalla’s proposed opinion testimony as set forth in his Safety Analysis Report
dated November 28, 2017. BNSF argues that Gavalla’s proposed testimony lacks
proper foundation and consists of improper legal opinions and conclusions,
improper medical opinions, and unfounded opinions with regard to federal laws
and regulations and BNSF’s internal policies, rules and procedures.
Consistent with the Court’s ruling from the bench at the motion hearing on
May 23, 2018, BNSF’s motion is granted in part and denied in part as follows:
(1) BNSF agreed that Gavalla can testify within the parameters of Frost v.
BNSF Ry. Co., 218 F.Supp.3d 1122 (D. Mont. 2016) as to safety rules and
regulations, the purpose of the internal control plan, the importance of injury
reporting, and the negative effects of underreporting. (Doc. 198, at 6). To the
extent BNSF moves to prohibit Gavalla from testifying on these topics, including
the standard of care in the industry in terms of reporting injuries, BNSF’s motion
in limine is DENIED, subject to renewal in the context of trial. (Doc. 198, at 8, 1819).
(2) BNSF’s motion to prohibit Gavalla from testifying that Wooten
sustained a work-related injury is GRANTED on the ground that such testimony
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would invade the province of the jury and improperly bolster Wooten’s testimony.
(Doc. 198, at 10-11)
(3) BNSF’s motion to prohibit Gavalla from testifying that Wooten was not
injured when he reported to work on the night in question is GRANTED. (Doc.
198, at 12-13).
(4) Wooten agreed at the hearing that he does not intend to offer any opinion
from Gavalla relating to medical causation. (Doc. 198, at 13). To the extent BNSF
moves to prohibit Gavalla from offering opinions concerning medical causation, its
motion is GRANTED. (Doc. 198, at 13).
(5) BNSF’s motion to exclude Gavalla’s opinion regarding the sufficiency
of the handwriting samples used during BNSF’s investigation into Wooten’s
actions is GRANTED. (Doc. 198, at 16).
(6) BNSF’s motion to prohibit Gavalla from testifying based on Dr. Charles
Sullivan’s records that it would have been impossible for Wooten not to have been
injured in a work-related incident is GRANTED. (Doc. 198, at 16).
(7) BNSF’s motion to exclude Gavalla’s opinion that Wooten was “honest
and forthcoming” is GRANTED. (Doc. 198, at 17).
(8) BNSF’s motion to prohibit Gavalla from testifying about industry
standards, particularly the standard of care embodied in the FRSA statute and
OSHA regulations, is DENIED, subject to renewal at trial. (Doc. 198, at 20). But

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to the extent BNSF moves to preclude Gavalla from testifying that BNSF violated
that standard of care here, its motion is GRANTED. (Doc. 198, at 21).
(9) BNSF’s motion is GRANTED to the extent it seeks to prohibit Gavalla
from testifying that Wooten was engaged in a protected activity, that BSNF knew
he engaged in a protected activity, that there was a causal nexus between Wooten’s
injury report and his termination. (Doc. 198, at 20- 22).
(10) BNSF’s motion to prohibit Gavalla from testifying that the discipline
and dismissal of Wooten was a pretext for retaliation, and the type of action the
discrimination provisions were intended to prevent is GRANTED. (Doc. 198, at
22-23).
(11) While Gavalla may testify generally about industry standards, BNSF’s
motion is GRANTED to the extent it seeks to prohibit Gavalla’s opinion that
BNSF was “motivated, at least in part, by a desire to achieve the BNSF ICP
(‘Incentive Compensation Plan’) goals, which would serve to increase
management bonuses.” (Doc. 198, at 23).
B.

Engle

BNSF moves in limine to prohibit Wooten from introducing John David
Engle, Jr.’s proposed opinion testimony as set forth in his report dated November
29, 2017. BNSF argues that Engle lacks the requisite foundation and qualifications
to offer the opinions set forth in his report. BNSF moves to prohibit Engle from
testifying as to (1) the sufficiency of the 3-Man Inspection Team’s inspection of
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BNSF 6867, and (2) the condition and function of a non-welded part on a
locomotive.
Consistent with the Court’s ruling from the bench at the motion hearing on
May 23, 2018, BNSF’s motion is DENIED. (Doc. 198, at 24-31).
III.

Motions in Limine
Only evidence that is relevant is admissible at trial. Fed. R. Evid. 402.

Federal Rule of Evidence 401 defines relevant evidence as “evidence having any
tendency to make the existence of any fact that is of consequence to the action
more probable or less probable than it would be without the evidence.” Even
evidence that is relevant may be “excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” Fed. R. Evid. 403.
Courts have “wide discretion” in considering and ruling on motions in
limine. Trichtler v. Co. of Lake, 358 F.3d 1150, 1155 (9th Cir. 2004). For evidence
to be excluded on a motion in limine, “the evidence must be inadmissible on all
potential grounds.” BNSF Ry. v. Quad City Testing Laboratory, Inc., 2010 WL
4337827 at *1 (D. Mont. 2010). “Unless evidence meets this high standard,
evidentiary rulings should be deferred until trial so that questions of foundation,
relevancy and potential prejudice may be resolved in proper context.” BNSF v.
Quad City, 2010 WL 4337827 *1.
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A.

BNSF’s Motions in Limine (Doc. 166)

BNSF moves in limine to preclude Wooten from presenting evidence and
argument at trial relating to the following:
(1)

Allowing evidence of Mark Voelker’s role in the reporting of loose
screws on October 27, 2015.

BNSF asks that it be able to delve into this evidence, including emails that
Voelker sent to Wooten’s counsel, at trial. (Doc. 198, at 32). This motion is
DENIED, subject to renewal at trial (Doc. 198, at 33).
(2)

Reference to James Pino’s 23-year-old felony conviction.

This motion is GRANTED. (Doc. 198, at 38).
(3)

Arguments that Nancy Ahern allegedly acted dishonestly in procuring
video footage from Town Pump.

This motion is GRANTED, except to the extent that Ahern can be
questioned on the form she filled out. (Doc. 198, at 33, 39-40).
(4)

Documents obtained by Wooten’s counsel from Michael Hart.

This motion is GRANTED. (Doc. 198, at 33-34).
(5)

Testimony of Dr. William Stratford.

Wooten does not object to this motion, which is GRANTED. (Doc. 198, at
34).
(6)

Testimony of Mike Smith.

This motion is DENIED subject to renewal at trial. (Doc. 198, at 34, 40-42).
(7)

Wooten’s need for future surgery.
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This motion is DENIED subject to renewal at trial. (Doc. 198, at 35).
(8)

Wage loss and medical expenses.

This motion is GRANTED to the extent that this evidence will not be
introduced at trial, and will be addressed after trial if necessary for purposes of
determining any potential offset. (Doc. 198, at 46-48).
(9)

Welded doors on locomotives other than BNSF 6867.
Ruling on this motion is DEFERRED until the time of trial. (Doc. 198
at 44-46).

(10) Arguments for political or punitive effect, including any reference to
the size or financial holdings of a corporate party or comparisons
between Wooten and BNSF or corporations.
This motion is GRANTED, except that such evidence may be admissible if
the case proceeds to a punitive damages phase. (Doc. 198, at 48-50).
(11) All media reports regarding Wooten’s termination as well as media
reports of other OSHA investigations.
This motion is GRANTED. (Doc. 198, at 51-53).
(12) Alleged retaliatory termination, dismissal or discipline of any other
employee.
This motion is DENIED, subject to renewal at trial. (Doc. 198, at 53-54).
(13) Any evidence or argument about Congressional intent (including any
discussion of prior actions of any railroad, employer, or government
entity that may have led, in whole or in part, to promulgation of §
20109) or Congressional hearing statements or testimony of any
person.
This motion is DENIED, subject to renewal at trial. (Doc. 198, at 56).
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(14) BSNF Railway Company’s PPI index and ERP safety program.
This motion is GRANTED. (Doc. 198, at 58).
(15) Mention of these motions in limine or the Court’s rulings thereon.
This motion is GRANTED. (Doc. 198, at 58).
(16) Discovery orders or discovery issues.
This motion is GRANTED. (Doc. 198, at 58).
(17) Testimony regarding the conduct of BNSF or its attorneys in
defending this lawsuit, or any other lawsuit, including allegations of
spoliation.
This motion is DENIED, subject to renewal at trial. (Doc. 198, at 59).
(18) The January 10, 2013, Accord between OSHA and BNSF or any
negotiations regarding the same, as well as any other lawsuits or the
results thereof against BNSF based on the FRSA.
This motion is GRANTED. (Doc. 198, at 62).
(19) Budget cuts made by BNSF.
This motion is GRANTED to the extent that general testimony about budget
cuts will be precluded. The Court may revisit this issue at trial, depending on the
evidence BNSF presents with respect to the fact that Wooten called in sick before
the alleged incident. (Doc. 198, at 60-61, 65).
(20) BNSF’s “corporate mindset” or “corporate culture.”
This motion is GRANTED, subject to developments at trial that may make
some inquiry into BSNF procedures relevant. (Doc. 198, 66-67).

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(21) Testimony from witnesses about psychological effects of the
investigations, termination or lawsuit has on Wooten or others.
This motion is GRANTED, except to the extent that Wooten can testify
about his own emotional distress. (Doc. 198, at 67).
(22) Testimony about the after-the-fact PEPA board review.
Ruling on this motion is deferred until the time of trial. (Doc. 198, at 69).
(23) Reference to any railroad accidents or incidents, or inflammatory
remarks such as comparing BNSF to the Klu Klux Klan or making
references to “bomb trains” and other similarly inflammatory
comments.
This motion is GRANTED. (Doc. 198, at 70-71).
(24) Any inquiry into or testimony regarding Daniel Fransen leaving his
employment with BNSF.
Ruling on this motion is deferred until the time of trial. (Doc. 198, at 73).
(25) Mark Voelker’s termination from his employment with BNSF
Ruling on this motion is deferred until the time of trial. (Doc. 198, at 73-74).
(26) Opinions or argument that the type or model of door latch installed on
BNSF 6867 is defective in its design
This motion is GRANTED, to the extent that Toby Hayes and Levoy Little
will not be allowed to testify about design defects. The admissibility of other
testimony by Hayes and Little will be resolved at the time of trial. (doc. 198, at 4546).
B.

Plaintiff’s Motions in Limine (Doc. 168)

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Wooten moves in limine to preclude BNSF from presenting evidence and
argument at trial relating to the following:
(1)

Testimony from and reports produced by Brian Weaver

Wooten’s motion to exclude Mr. Weaver’s possible opinion or statement
that there is “no evidence” to suggest that the door handle and latch mechanism
failed to function properly when Wooten operated the latch is GRANTED. (Doc.
198 at 119 and 121-22.) Wooten’s own testimony constitutes evidence that the
latch may not have functioned properly. And Mr. Weaver may not comment on the
objective value of any particular witness’s statement about the latch functioning
properly. He may not declare that one witness’s statement as to the functionality of
the latch is more objectively accurate than Wooten’s statement asserting the latch
did not function. (Doc. 198 at 119-120.)
Wooten moves to exclude Mr. Weaver’s opinions regarding Wooten’s body
kinematics as further explained during the hearing. Wooten argued about Mr.
Weaver’s opinions as to which direction Wooten fell while climbing the steps on
the locomotive, and his opinions based on measurements of the slope of the
ground. Wooten is concerned that there was no information as to whether the slope
had been changed by the time the measurements were taken. The Court took this
motion under advisement and defers ruling upon the motion for the presiding
District Judge’s consideration in the context of all the information presented at
trial. (Doc. 198 at 121.)
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Wooten’s motion to preclude Mr. Weaver’s opinions regarding the extent of
Wooten’s injuries is GRANTED to the extent Mr. Weaver may try to describe
Wooten’s actual injuries differently than the description of those injuries set forth
in Wooten’s medical records. (Doc. 198 at 125.) Mr. Weaver’s description of
Wooten’s injuries shall be limited to the specific medical terminology used in
Wooten’s medical records to describe Wooten’s injuries.
Wooten moved to exclude Mr. Weaver’s opinions about whether the hex
bolts or screws on the locomotive door were purposefully manipulated. Wooten
argued there existed no factual or scientific evidence indicating that the bolts were
purposely manipulated. And Wooten argued there is no identification of the time of
the tool marks on the bolts or screws. The Court took the motion under advisement
and defers ruling for the presiding District Judge’s consideration upon the
presentation of evidence at trial. (Doc. 130 at 169.)
Wooten moved to preclude Mr. Weaver’s opinions and conclusions that,
after viewing the shanty videos, Wooten’s conduct shown in the videos reflect that
he had an injury at that time. Wooten argues there is nothing in the videos that
would allow Mr. Wearver to say an injury to Wooten is shown by the video. Based
upon the parties’ exchange of information during the hearing, Wooten agreed to
review the videos he obtained from BNSF and reassess the merits of his motion.
Therefore, Wooten’s motion is deemed withdrawn and, therefore, DENIED on that
basis. (Doc. 198 at 140-42.) Nonetheless, as stated during the hearing, the Court
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concludes that the referenced videos themselves are the best evidence of whether
they show that Wooten had an injury at the time of the videos. Mr. Weaver may
not opine, for example, that the videos show that Wooten was purposely avoiding
use of his right hand and, therefore, he had an injury to his right hand. Mr. Weaver
may not interpret for the jury what is shown on the videos. Thus, Wooten’s motion
is GRANTED in that respect. (Doc. 198 at 142.)
(2)

Reference to, exhibiting of, use of, or referring to in any manner
whatsoever, Wooten’s Lay-Off Sick on the morning of July 29, 2015.

Wooten’s motion is GRANTED to the extent that BNSF is precluded from
making any reference to, or use of, evidence establishing that Wooten laid off sick
either on the morning of July 29, 2015, or at 5:28 p.m. on July 29, 2015, prior to
the incident that is the subject of this action. (Doc. 198 at 104-05.) But to the extent
Wooten seeks to exclude evidence of his activities the evening of July 29, 2015,
spending time in bars with friends, the motion is DENIED subject to renewal if
Wooten can affirmatively establish the evidence is irrelevant. (Doc. 198 at 10607.)
(3)

Reference to, exhibiting of, use of, or referring to in any manner
whatsoever, Wooten’s consensual sexual encounter with an unknown
woman on the night of July 29, 2015, and the abrasion to his left arm
sustained during that encounter.

This motion is DENIED, subject to renewal in the context of trial. (Doc. 198
at 142-52).

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(4)

Testimony and/or evidence that Wooten has retained out-of-state
counsel.

Wooten has withdrawn his motion to exclude evidence establishing he
retained out-of-state counsel. (Doc. 198 at 108.) Therefore, the motion is DENIED
as moot.
(5)

Testimony and/or evidence of a bar fight that took place on or about
July 29, 2015.

Wooten’s motion to exclude evidence suggesting he was in involved in a
fight at a bar on July 29, 2015, is DENIED subject to his right to renew the motion
at trial. (Doc. 198 at 108.)
(6)

Testimony and/or evidence that BNSF’s investigation and subsequent
termination of Wooten’s employment was conducted pursuant to a
collective bargaining agreement.

Wooten’s motion to exclude testimony or evidence that BNSF conducted its
investigation of Wooten’s injury claim, and subsequently terminated Wooten, all in
accordance with the collective bargaining agreement is GRANTED. (Doc. 198 at
154-55.) But, as noted at the hearing, if at trial Wooten seeks to cast prejudicial
light upon BNSF with respect to the manner and procedure of its investigation,
then BNSF may bring up the issue of the collective bargaining agreement with the
presiding District Judge and he may decide the evidence of the agreement is
relevant and admissible. (Doc. 198 at 156.)
(7)

Testimony or argument that Wooten’s motive is to make or get money
from BNSF, or that any award that Wooten may receive would result
in higher costs to the public through rate or insurance increases.
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Wooten has withdrawn his motion seeking to exclude possible evidence of
his motive to obtain money, and evidence that a compensatory award granted to
Wooten in this case would increase rates and insurance premiums. (Doc. 198 at
109.) Therefore, the motion is DENIED as moot.
(8)

Reference to BNSF as a “family” or “good corporate citizen.”

Wooten clarified at the hearing that he is asking the Court to preclude
BNSF’s expert witnesses from testifying that BNSF did not violate a particular
FELA requirement or regulation. Therefore, Wooten’s motion, as clarified, is
GRANTED. (Doc. 198 at 158-59.)
(9)

Testimony or argument that Michael Hart may have misappropriated
certain documents from BNSF.

The Court has granted BNSF’s motion to preclude Wooten from using
documents obtained from Michael Hart. Therefore, Wooten’s motion precluding
BNSF from suggesting Hart may have misappropriated documents from BNSF is
unnecessary and DENIED on that basis. (Doc. 198 at 110.) BNSF will not be
addressing the source of Hart’s documents.
IV.

Conclusion
IT IS ORDERED that the parties’ motions in limine to exclude or limit

expert testimony and other evidence (docs. 151, 164, 166 & 168) are GRANTED
IN PART and DENIED IN PART as set forth above.
DATED this 1st day of June, 2018.
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______________________________
Jeremiah C. Lynch
United States Magistrate Judge

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