Madden v. Antonov et al
Filing
167
ORDER granting in part and denying in part 118 Motion to Compel; granting in part and denying in part 126 Motion for Protective Order; granting 142 Motion to Continue; granting 160 Motion for Hearing. Ordered by Magistrate Judge Cheryl R. Zwart. (Zwart, Cheryl)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
RONALD D. MADDEN,
Plaintiff,
4:12CV3090
vs.
MEMORANDUM AND ORDER
ANTON ANTONOV, AV
TRANSPORTATION, INC., THE
ANDERSONS, INC., BNSF RAILWAY
COMPANY,
Defendants.
Plaintiff Ronald Madden’s complaint against Defendant BNSF Railway Company
("BNSF") seeks recovery under the Federal Employers' Liability Act, 45 U.S.C. § 51, et
seq. ("FELA"), for injuries Madden sustained when the locomotive he occupied collided
with a commercial truck. The accident occurred on February 15, 2012, at a railroad grade
crossing on County Road 429 in Custer County, Nebraska. Among other things, the
plaintiff alleges the railroad failed to adequately instruct trainmen on how to reduce the
risk of injury from grade crossing collisions, and it failed to construct and maintain a
reasonably safe railroad crossing at County Road 429. (Filing No. 18, at CM/ECF p. 11,
¶ 33 (e, g & i).
The following substantive motions are pending before me:
Filing No. 118:
Motion to Compel Discovery
Filing No. 126:
Motion for Protective Order
Filing No. 142:
Motion to Continue
For the reasons discussed below, the plaintiff’s motion to compel and the railroad’s
motion for protective order will each be granted in part, the railroad’s motion to continue
will be granted, and a hearing will be held to discuss further case progression.
Motion to Compel (Filing No. 118)
Motion for Protective Order (Filing No. 126)
The plaintiff moves to compel BNSF to answer discovery:
1) requesting
information and documentation of prior claims filed by BNSF employees for injuries
sustained during grade crossing collisions; and 2) requesting information and
documentation regarding other grade crossing accidents occurring in Nebraska for the
past 10 years, and through the entire BNSF system for the past five years. As to the
request for grade crossing information, the railroad filed a motion for protective order.
The railroad prepared and served a detailed privilege log describing all documents
withheld, the author and recipients of those documents, the person currently in possession
of the documents, and the basis for objecting to disclosure. (Filing No. 120-3). The
plaintiff asked the court to review, in camera, “all documents identified in BNSF's
Privilege Log on Pages 1 - 15 as soon as reasonably possible so as to examine the content
and purpose of said documents to verify whether BNSF” is entitled to assert the privilege
afforded under 23 U.S.C. § 409. (Filing No. 135, at CM/ECF p. 17). As ordered by the
court, the railroad delivered a compact disc containing the documents to the chambers of
the undersigned magistrate judge. (Filing No. 138). Those documents were delivered on
July 9, 2014, and were uploaded on the court’s CM/ECF system under seal. (Filing No.
140).
1.
Discovery of information regarding prior injuries sustained by railroad
employees in grade crossing accidents.
As to discovery of prior employee injury claims arising from grade crossing
accidents, the plaintiff’s discovery requests, and the railroad’s corresponding responses
are as follows:
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INTERROGATORY NO. 21: Within the ten (10) years prior to the subject
collision and at any time since the subject collision, please state the number
of crossing collisions in the State of Nebraska that have occurred involving
a train controlled and/or operated by this Defendant and state the dates,
locations and mileposts of every such collision.
ANSWER: BNSF objects to this Interrogatory as overly broad and
irrelevant to the claims and defenses of the parties, not reasonably
calculated to lead to the discovery of relevant and admissible evidence, and
beyond the scope of discovery permitted by Rule 26.
REQUEST FOR PRODUCTION NO. 32: For the past ten (10) years,
produce a list of all reported claims (similar to the list attached herewith as
Plaintiff s Exhibit A produced by BNSF in other litigation) involving
employees of Defendant BNSF who reported sustaining injuries as a result
of being involved in a crossing accident in the State of Nebraska.
RESPONSE: BNSF objects to this request on the grounds that it is overly
broad and unduly burdensome. BNSF also objects to this request on the
grounds that it seeks information regarding incidents and/or claims that lack
the requisite "substantial similarity" with respect to time, location,
employee craft, crossing conditions and configuration, instrumentalities,
equipment, and other conditions and factors and therefore is not reasonably
calculated to lead to the discovery of relevant and admissible evidence.
This request also seeks confidential and private medical information and
non-party employees have not waived the release of their confidential
information. Finally, BNSF objects to the extent this request seeks
information that is attorney-client privileged, attorney-work product, or
otherwise protected from disclosure pursuant to state and/or federal law,
such as 49 U.S.C. § 20903, 49 U.S.C. § 20907, and 49 C.F.R. § 229.7.
REQUEST FOR PRODUCTION NO. 33: For the past five (5) years,
produce a list of all reported claims (similar to the list attached herewith as
Plaintiff s Exhibit A produced by BNSF in other litigation) involving
employees of Defendant BNSF who reported sustaining injuries as a result
of being involved in a crossing accident on BNSF's railroad system (i.e.
system-wide).
RESPONSE: BNSF objects to this request on the grounds that it is overly
broad and unduly burdensome. BNSF also objects to this request on the
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grounds that it seeks information regarding incidents and/or claims that lack
the requisite "substantial similarity" with respect to time, location,
employee craft, crossing conditions and configuration, instrumentalities,
equipment, and other conditions and factors and therefore is not reasonably
calculated to lead to the discovery of relevant and admissible evidence.
This request also seeks confidential and private medical information and
non-party employees have not waived the release of their confidential
information. Finally, BNSF objects to the extent this request seeks
information that is attorney-client privileged, attorney-work product, or
otherwise protected from disclosure pursuant to state and/or federal law,
such as 49 U.S.C. § 20903, 49 U.S.C. § 20907, and 49 C.F.R. § 229.7.
(Filing Nos. 120-1; 120-6).
The plaintiff claims the information requested is relevant to show the railroad was
on notice that grade crossing accidents pose a risk of injury to railroad employees, and to
show the frequency and extent of that risk. The plaintiff argues the railroad can collect
this information by running a simple database search, and any claim of burden is
specious. (Filing No. 119, at CM/ECF p. 10). In support of this argument, the plaintiff
submitted a database printout from a different case which lists lawsuits filed for “BNSF
engineer and conductor musculoskeletal injuries allegedly due to ride quality - loco
vibration - Track conditions getting on/off moving equipment - working/walking on
ballast,” (Filing No. 120-5); excerpts from a 2006 deposition of Michael HartungSchuster, who maintains a database of BNSF employee injury reports and explained the
capability and limitations of performing a database search for injuries arising from
connecting electrical cables, (Filing No. 120-10); and a BNSF interrogatory response
from a different case stating a database search would be run to create a list of all
employee claims and lawsuits alleging injuries resulting from dismounting locomotives.
(Filing No. 120-11).
The railroad counters that “Plaintiff’s motion to compel production of all claims,
by all train crews over ten years involved in any type of grade crossing incidents
4
throughout BNSF’s system of 28 states and 3 countries” must be denied as overly broad,
unduly burdensome, and irrelevant. BNSF further argues the plaintiff’s requests for
Nebraska crossing information for a timeframe of ten years, spanning from before the
2012 crossing accident and to the present, is overly broad.
The railroad explains
incidents and accidents which occurred after the plaintiff’s accident are not relevant to
the claims and defenses alleged in this case, and as to those incidents occurring prior to
the accident, the plaintiff’s discovery is not limited to the subject crossing accident, the
same or similar type of working conditions, or the equipment involved in the plaintiff’s
accident. (Filing No. 127, at CM/ECF p. 16). As such, the railroad argues the discovery
requests are “facially overbroad or unduly burdensome,” and the railroad “need not
provide specific, detailed support” to raise and stand on its objections. Carlton v. Union
Pac. R. R. Co., 2006 WL 2220977 (D. Neb. 2006) (citing Contracom Commodity
Trading Co. v. Seaboard, 189 F.R.D. 655, 665 (D. Kan. 1999).
Evidence of other lawsuits and complaints need not be admissible at trial to be
subject to discovery.
When interpreting the relevance of discovery regarding other
accidents, the court need only find that the circumstances surrounding those accidents are
similar enough to the accident at issue that discovery concerning those incidents is
reasonably calculated to lead to disclosure of substantially similar occurrences. Cardenas
v. Dorel Juvenile Group, Inc., 230 F.R.D. 611, 633 (D. Kan. 2005); Kramer v. Boeing
Co., 126 F.R.D. 690, 692–95 (D. Minn. 1989).
Interrogatory 21 requests a listing of every crossing accident in Nebraska for the
last 10 years involving a BNSF train, along with the dates, locations and mileposts of
every such collision. Production Request 32 requests documentation of all claims by
BNSF employees for the last 10 years arising from a crossing accident in Nebraska, and
Production Request 33 requests all such claims, system-wide, for the last five years.
These discovery requests encompass any accident occurring at a grade crossing,
5
including derailments, collisions involving two trains, collisions of trains and pedestrians
or trains and track obstructions, and collisions between motor vehicles and locomotives
or motor vehicles and railcars. The document production requests would also include
crossing accidents that occurred when no train was present, such as accidents between
two or more motor vehicles, single-car accidents, or motor vehicle-pedestrian accidents.
Finally, the plaintiff’s document production requests would include any collisions with
track maintenance or inspection equipment at a crossing. The circumstances of these
examples vary widely. Considering the breadth of information requested, the extensive
10-year timeframe for requests about collisions in Nebraska (Interrogatory 21 and
Request 32), and the extensive geographical area and five-year timeframe for producing
such information for BNSF’s entire system (Request 33), the court finds the discovery
requests are overbroad on their face, with no attempt to tailor the request to the accident
at issue or the purpose of the request.
The railroad’s response would encompass
information so dissimilar from the plaintiff’s accident that the discovery is not reasonably
calculated to lead to the discovery of relevant information. The plaintiff’s motion to
compel an answer to Interrogatory 21 and responses to Production Requests 32 and 33
will be denied.
2.
Discovery of information regarding the alleged hazardous condition of the
grade crossing.
The plaintiff claims the grade crossing at County Road 429 in Custer County was
hazardous and the railroad failed to adequately design, maintain, or signalize the
crossing. Relevant to these issues, Madden served Interrogatories 15, 16, 22, and 23, and
Production Requests 18, 22, and 27. The plaintiff’s discovery requests, and the railroad’s
corresponding responses are as follows:
INTERROGATORY NO. 15: For the ten (10) years prior to the collision,
or after the date of the collision, to this Defendant's knowledge, has any
governmental entity investigated the sufficiency of and/or need for warning
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signals/devices at the subject crossing? If yes, please state the name of the
governmental entity that made the request and the dates of said requests.
ANSWER: BNSF objects to this Interrogatory because it is overly broad,
vague and ambiguous, particularly in terms of the phrase "investigated the
sufficiency of and/or need for warning signals/devices," and insufficiency
limited in time and scope seeking (10) years of information. BNSF further
objects because the information sought is exempt from discovery pursuant
to 23 U.S.C. § 409.
INTERROGATORY NO. 16: At any time, either prior to or after the
subject collision, has BNSF requested or petitioned any governmental
entity (including but not limited to the Nebraska Department of
Transportation) for a review of the site (including the adequacy of and/or
need for any warning devices) at the subject crossing? If yes, please state
the nature and date of each such request or petition.
ANSWER: BNSF objects to this Interrogatory because it is overly broad,
vague and ambiguous, particularly in terms of the phrases "petitioned,"
"review of the site:·and "adequacy of and/or need for" any warning devices.
BNSF further objects because the information sought is exempt from
discovery pursuant to 23 U.S.C. § 409. BNSF further objects to this
interrogatory to the extent it implies BNSF had a duty to "request or
petition any governmental entity" regarding the adequacy of "warning
devices" at the crossing.
INTERROGATORY NO. 22: At any time prior to the subject collision, did
this Defendant communicate with employees of Custer County, Nebraska,
the State of Nebraska, or any employees of the other Defendants in this
litigation, concerning any hazards or safety concerns at the crossing where
the collision occurred as alleged in Plaintiff s Complaint? lf yes, please
identify when every such communication occurred and the names,
addresses and employers of all persons involved in said communications.
ANSWER: BNSF objects to this Interrogatory because it is overly broad,
irrelevant, insufficiently limited in scope and time, and vague and
ambiguous, particularly in terms of the phrase "hazards or safety concerns."
BNSF further objects because the information sought is exempt from
discovery pursuant to 23 U.S.C. § 409. Without waiving any objections and
to the extent plaintiff seeks communications between defendant BNSF and
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The Andersons Inc., plaintiff is referred to defendant's response to request
nos. 16 and 22.
INTERROGATORY NO. 23: Did Defendant have any program for
evaluation of hazards at grade crossings in Nebraska for the ten year period
prior to the collision concerned in Plaintiff s Complaint, specifically
including the crossing where this collision occurred? If so, please describe
such program in detail and identify the person responsible for the program
as of the date of the subject collision.
ANSWER: BNSF objects to this Interrogatory as vague and ambiguous,
particularly in terms of the phrase "program for evaluation of hazards", and
insufficiently limited in time and scope and not likely to lead to the
discovery of relevant and admissible evidence. BNSF objects to this
Interrogatory because the information sought is exempt from discovery
pursuant to 23 U.S.C. § 409. BNSF further objects to this interrogatory to
the extent it implies BNSF had a duty to have a "program for evaluation of
hazards at grade crossings in Nebraska" or a "person responsible" for any
such program.
REQUEST FOR PRODUCTION NO. 18: Any and all documents, logs or
reports, sent to and/or received from any federal, state or local agency,
governmental agency, and/or any other agency or entity pertaining to the
subject collision involving Plaintiff, including but not limited to the federal
government and/or State of Nebraska.
RESPONSE: Defendant objects to this Response because it is overly broad,
vague, ambiguous, not sufficiently limited in time and scope and seeks
information that is not relevant to this lawsuit and is not reasonably
calculated to lead to the discovery of relevant and admissible evidence.
Defendant further objects because the information sought is exempt from
discovery pursuant to 49 C.F.R. § 225.7b, 23 U.S.C. § 409, 49 U.S.C. §
20903 and 49 U.S.C. § 20703. Without waiving said objections, Plaintiff is
referred to BNSF's response to Request for Production No. 1.
REQUEST FOR PRODUCTION NO. 22: Any and all documents
memorializing, referencing and/or regarding any communications,
meetings, and/or interactions between employees, officials and/or
representatives of defendant BNSF and employees, officials and/or
representatives of any other named Defendants, from 2009 up through the
8
present time, in any way concerning business relationships between
defendant BNSF and any of the other named defendants, specifically with
regard to the ownership, lease, custody, control and/or responsibility of the
track, equipment, gates, bells, flashers, signs, lights, signals, crossings, hot
box detectors, radio towers, vegetation and/or tree maintenance and/or
removal, and/or any other equipment or conditions at the crossing where
the collision occurred subject to this litigation.
RESPONSE: BNSF produces electronic mail correspondence from BNSF
Economic Development Specialist Jon Arita re: The Andersons, Inc. dated
October 26, 2011[BNSFOO-BNSFOOJ [sic] with its referenced
attachments: ASM Rail Layout Plan revised January 23, 2012
[BNSF00606]; Ae1ial image of the site of referenced site [BNSF 00609];
The Anderson’s Track Plan [BNSF 00607]; NBR Approval [BNSF 00608];
and Corporate ROW Map [BNSF 00603]; Contract Preparation Request
submitted October 26, 2011 [BNSF 00602]; and Application for Track
Contract dated October 25, 2011 [BNSF 00604- BNSF00605.
REQUEST FOR PRODUCTION NO. 27: Copies of any and all sight
distance testing, measurements, data, and/or other such documentation
regarding the crossing where the collision occurred for the ten ( 10) years
prior to the collision, up through the present time.
RESPONSE: Defendant objects to this Response because it is overly broad,
vague and ambiguous particularly in the use of the phrase "sight distance
testing, measurements, data, and/or other such documentation," not
sufficiently limited in time and scope, seeking information not relevant to
the claims and defenses of the parties, and not reasonably calculated to lead
to the discovery of relevant and admissible evidence. Defendant BNSF
further objects because the information sought is exempt from discovery
pursuant to 23 U.S.C. § 409.
(Filing Nos. 120-1; 120-2).
The railroad prepared a privilege log listing the documents it did not produce. The
plaintiff seeks the documents identified in pages 1-15 of that log; specifically, those
documents BNSF withheld based on relevance, 23 U.S.C. § 409, and subsequent
remedial measures objections. (Filing No. 119, at CM/ECF p. 14). The primary focus of
9
the parties’ briefing, and the court’s review, is the application of 23 U.S.C. § 409, a
privilege created by federal statute. BNSF bears the burden of proving this privilege is
applicable to the requested, but undisclosed, documents. United States v. Hatcher, 323
F.3d 666, 675 (8th Cir. 2003).
23 U.S.C. §409 states as follows:
Notwithstanding any other provision of law, reports, surveys, schedules,
lists, or data compiled or collected for the purpose of identifying,
evaluating, or planning the safety enhancement of potential accident sites,
hazardous roadway conditions, or railway-highway crossings, pursuant to
sections 130, 144, and 148 of this title or for the purpose of developing any
highway safety construction improvement project which may be
implemented utilizing Federal-aid highway funds shall not be subject to
discovery or admitted into evidence in a Federal or State court proceeding
or considered for other purposes in any action for damages arising from any
occurrence at a location mentioned or addressed in such reports, surveys,
schedules, lists, or data.
23 U.S.C. § 409. Section 409 protects information compiled or collected for the Hazard
Elimination Program, 23 U.S.C. § 152, which “provides state and local governments with
funding to improve the most dangerous sections of their roads.” Pierce County, Wash. v.
Guillen, 537 U.S. 129, 144 (2003). State or local governments must engage in a thorough
evaluation of their public roads to be eligible for federal funds for road improvements.
The information “compiled and collected” as part of that evaluation process is protected
from discovery or use at trial under 23 U.S.C. § 409. But § 409 “does not protect
information that was originally compiled or collected for purposes unrelated to § 152 and
that is currently held by the agencies that compiled or collected it, even if the information
was at some point ‘collected’ by another agency for § 152 purposes.” Guillen, 537 U.S.
at 144. That is, for documents that were not created in the first instance for § 152
purposes, § 409 does not prevent discovery of those documents from their original
source, or from any source other than the person or entity that has compiled or collected
the documents for § 152 purposes. Guillen, 537 U.S. at 144.
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The protection of 23 U.S.C. § 409 is applicable if the project is eligible for federal
funding: Actual funding in not required. Harrison v. Burlington Northern R. Co., 965
F.2d 155 (7th Cir. 1992); Rodenbeck v. Norfolk & Western Ry. Co., 982 F. Supp. 620
(N.D. Ind. 1997). And the privilege extends to documents collected or compiled by a
state agency, other public agencies, or private parties such as railroads. Powers v. CSX
Transp., Inc., 177 F. Supp. 2d 1276 (S.D. Ala. 2001); Rodenbeck v. Norfolk & Western
Ry. Co., 982 F. Supp. 620 (N.D. Ind. 1997); Kitts v. Norfolk and Western Ry. Co., 152
F.R.D. 78 (S.D. W. Va. 1993); Taylor v. St. Louis Southwestern Ry. Co., 746 F. Supp. 50
(D. Kan. 1990).
Discovery cannot be used to obtain copies of newspaper articles and
correspondence containing information used to evaluate a grade crossing for road
improvements from a source that has compiled or collected the information for § 152
purposes. Robertson v. Union Pac. R.R. Co., 954 F.2d 1433 (8th Cir. 1992) (prohibiting
the use of crossing evaluation data from a newspaper article or the use of such
information as a basis for expert testimony); Powers v. CSX Transp., Inc., 177 F. Supp.
2d 1276 (S.D. Ala. 2001) (finding a letter to the railroad's director of construction and
public projects, which gave the railroad authority to proceed with work on a project and
to bill the State for the actual cost, was protected from discovery under 23 U.S.C. 409);
Rodenbeck, 982 F. Supp. at 624-625) (holding correspondence between the railroad and
the county highway department about a proposal to install stop or yield signs at a railroad
crossing was within the scope of § 409). See also, BNSF Ry. Co. v. Town of Vinton, 980
So.2d 152 (La. App. 3 Cir. 2008) (holding letters and emails which discussed
arrangements necessary to reopen a railway crossing, including specifications and
estimates of the labor costs associated with the project, were not discoverable); Dowell v.
State ex rel. Dept. of Transp. & Development, 750 So. 2d 498 (La. Ct. App. 2d Cir. 2000)
(holding letters written by concerned citizens to public agencies concerning highway
11
safety construction which could be eligible for federal funding were protected from
disclosure under § 409); Long v. State, Dept. of Transportation and Development, 743
So. 2d 743 (La. Ct. App. 2d Cir. 1999) (holding § 409 applied to a letter from a town's
mayor to the Louisiana Department of Transportation and Development (DOTD)
informing the DOTD of a fatal accident and other events at a railroad crossing in the
town); Rothermel v. Consolidated Rail Corp., 1998 WL 110010 (Del. Super. Ct. 1998) (§
409 applied to letters between and the city mayor and the state, railroad, and state and
federal elected officials providing notice of concerns that a city crossing was dangerous);
Miss Sawyer v. Illinois Cent. Gulf R. Co., 606 So. 2d 1069 (Miss. 1992) (holding the
correspondence from a town to the state highway department expressing the need for
safety enhancements at railroad crossings was data collected for the purpose of
identifying safety enhancements for such crossings under § 409). And a party cannot
circumvent the § 409 privilege by asking a witness to testify to matters the witness
learned from documents protected by the statute. Powers v. CSX Transp., Inc., 177 F.
Supp. 2d 1276 (S.D. Ala. 2001).
The railroad has produced, for in camera review, the file maintained by Andy
Amparan, the Manager of Public Projects for BNSF Railway Company. Amparan was
directly involved in communications to evaluate the railroad grade crossing at issue.
Amparan avers that the documents within his file, as listed in the railroad’s privilege log,
were collected or created to identify, evaluate, and plan safety improvements to the
accident crossing using Federal-aid highway funds, or to determine if closure was
warranted. (Filing No. 128-2).
The court has reviewed the documents listed in pages 1-15 of the privilege log
and, applying the legal standards outlined above, finds the vast majority of those
documents, including emails and correspondence, contain references to:
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comments made by state and local government personnel, the adjacent industry
and its employees, and local citizens about the condition of the crossing;
requests, concerns, or objections to changing it;
federal and state funding requests;
observations at the crossing;
statements about the types and numbers of vehicles using the intersection, and
any seasonal changes in that use;
reports of accidents and any near misses at the crossing;
suggestions made or options considered for modifying the roadway/railway
layout or for adding passive or active signal protection at the crossing;
stated concerns and objections to closing the crossing;
potential project plans; and/or
the availability of federal funds.
These documents contain data collected and compiled for § 152 purposes.
But documents which merely reflect scheduled meetings and the names of meeting
attendees or invitees are not “reports, surveys, schedules, lists, or data compiled or
collected for the purpose of identifying, evaluating, or planning the safety enhancement
of potential accident sites.” (23 U.S.C. § 409). As such, BNSF must produce batesstamped pages BNSFCXF00014; BNSFCXF00045; BNSFCXF00049; BNSFCXF00067;
BNSFCXF00084;
BNSFCXF00093;
BNSFCXF00046;
BNSFCXF00054;
BNSFCXF00051;
BNSFCXF00098;
BNSFCXF00101;
BNSFCXF00056;
BNSFCXF00063;
BNSFCXF00064;
BNSFCXF00099;
BNSFCXF00100;
BNSFCXF00068;
BNSFCXF00073;
BNSFCXF00078;
BNSFCXF00136;
BNSFCXF00083;
BNSFCXF00132;
BNSFCXF00158;
BNSFCXF00160;
BNSFCXF00161;
BNSFCXF00162;
BNSFCXF00163;
BNSFCXF00164;
BNSFCXF00165;
BNSFCXF00166;
BNSFCXF00168;
BNSFCXF00189;
BNSFCXF00171;
BNSFCXF00172;
BNSFCXF00173;
BNSFCXF00196;
BNSFCXF00197; BNSFCXF00198; BNDOR00001.
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All other documents listed in pages 1-15 of the railroad’s privilege log are not
subject to discovery pursuant to 23 U.S.C. § 409, and were properly withheld by the
railroad.
Motion to Continue (Filing No. 142)
On August 4, 2014, the railroad filed a motion to continue, arguing the plaintiff
has not reached maximum medical improvement. The railroad argues the medical and
vocational rehabilitation expert disclosure deadlines should be continued, along with the
trial and pretrial conference. The plaintiff strenuously objects, arguing the plaintiff’s
brain injury and Post-Traumatic Stress Disorder (PTSD) are permanent, and any trial
delay is unwarranted. The plaintiff requested and was afforded a telephonic hearing on
that issue. After hearing the parties’ arguments, the court continued the expert disclosure
deadline for the railroad’s medical and vocational rehabilitation experts until further
order of the court. The court re-set a hearing for September 2, 2014.
Based on the evidence before the court, the plaintiff is now receiving a treatment
which may alleviate his symptoms. The plaintiff began biofeedback for his symptoms in
May of 2014. (Filing No. 145-5, at CM/ECF p. 13). His medical records indicate his
symptoms may be improving as a result of that treatment. As of July 2014, he was
advised to see a headache specialist. (Filing No. 145-5, at CM/ECF p. 15).
Although the plaintiff’s diagnosis of PTSD and traumatic brain injury are
permanent, based on the evidence of record, the extent of his resulting impairments may
not be. His emotional symptoms, including depression, fatigue, headaches, and anxiety,
certainly impact his quality of life, and his ability to care for himself and become
employed. These symptoms impact his cognitive abilities and, in turn, the ability to
validly perform tests to determine the nature and extent of his injury. (Filing No. 145-3,
at CM/ECF p. 4-5, 16). As explained by Stephen S. Kalat, Ph.D., “Mr. Madden likely
has multiple physical and emotional symptoms that are impinging on his ability to
14
perform reliably on the testing. Improvement in his emotional and physical status may be
required before a valid sample of neurocognitive abilities can be obtained.” (Filing No.
145-3, at CM/ECF p. 18).
The plaintiff is requesting recovery for pain and suffering, emotional distress,
diminished or lost earning capacity, and damages for household services he can no longer
perform. As of now, it is not clear whether new treatment modalities will ameliorate his
symptoms. And if so, those treatments will impact his damage claims and his ability to
engage in further medical testing. Under such circumstances, a continuance is warranted.
Accordingly,
IT IS ORDERED:
1)
The plaintiff’s motion to compel, (Filing No. 118), and the railroad’s
motion for protective order, (Filing No. 126), are each granted in part and
denied in part as follows:
a.
The plaintiff’s motion to compel responses to Interrogatory 21, and
Requests for Production 32 and 33 is denied.
b.
The defendant shall produce the following bates-stamped pages of
the documents identified in pages 1 through 15 of its privilege log:
BNSFCXF00014;
BNSFCXF00045;
BNSFCXF00049;
BNSFCXF00067;
BNSFCXF00084;
BNSFCXF00093;
BNSFCXF00046;
BNSFCXF00054;
BNSFCXF00051;
BNSFCXF00098;
BNSFCXF00101;
BNSFCXF00056;
BNSFCXF00063;
BNSFCXF00064;
BNSFCXF00099;
BNSFCXF00100;
BNSFCXF00068;
BNSFCXF00073;
BNSFCXF00078;
BNSFCXF00136;
BNSFCXF00083;
BNSFCXF00132;
BNSFCXF00158;
BNSFCXF00160;
BNSFCXF00161;
BNSFCXF00162;
BNSFCXF00163;
BNSFCXF00164;
BNSFCXF00165;
BNSFCXF00166;
BNSFCXF00168;
BNSFCXF00189;
BNSFCXF00171;
BNSFCXF00172;
BNSFCXF00173;
BNSFCXF00196;
BNSFCXF00197; BNSFCXF00198; BNDOR00001.
15
c.
With the exception of the pages identified above, the railroad’s motion for
protective order, (Filing No. 126), is granted, and the plaintiff’s motion to compel
responses to Interrogatories 15, 16, 22, and 23, and Production Requests 18, 22, and 27 is
denied.
2.
The railroad’s motion to continue, (Filing No. 142), is granted.
3)
The plaintiff’s motion, (Filing No. 160), is granted. A telephonic
conference with the undersigned magistrate judge will be held on
September 2, 2014 at 9:00 a.m. (CDT) to discuss further case progression.
The court will provide call in information for the call.
September 1, 2014.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge
*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for the District of
Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they
provide on their Web sites. Likewise, the court has no agreements with any of these third parties or their Web sites.
The court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a
hyperlink ceases to work or directs the user to some other site does not affect the opinion of the court.
16
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