Lajeunesse v. BNSF Railway Company
MEMORANDUM OPINION AND ORDER by District Judge Kenneth J. Gonzales granting 56 Motion to Dismiss. The parties will brief the costs and attorney's fees issue as outlined in this order. (tah)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
No. CV 18-214 KG/JHR
BNSF RAILWAY COMPANY,
MEMORANDUM OPINION AND ORDER
Discovery in civil litigation is, at its core, a fact-finding, truth-seeking process. As such,
it demands good faith, unambiguous, direct and forthright participation from litigants. It is
because these objectives have been frustrated here that Defendant BNSF Railway Company
(BNSF) has filed the instant Motion to Dismiss Plaintiff’s Complaint as a Sanction for Plaintiff’s
Willful Abuse of Discovery Process (Motion to Dismiss), filed November 16, 2018. (Doc. 56).
Plaintiff Jeremy LaJeunesse (LaJeunesse) filed his response in opposition on December 20,
2018, and BNSF filed its reply on January 24, 2019. (Docs. 64 and 73). Having considered the
briefing and exhibits, the record, and the applicable law, the Court grants BNSF’s Motion to
Dismiss, dismisses this case with prejudice, and retains jurisdiction over the parties to determine
the issue of attorney’s fees and costs.
Background and Procedural History
LaJeunesse filed this Federal Employers Liability Act (FELA) claim against his former
employer, BNSF, on March 6, 2018. (Doc. 1). FELA creates a federal cause of action for
employees of “[e]very common carrier by railroad” when those employees are injured at work
and engaged in activities “further[ing] . . . interstate or foreign commerce . . . or . . . directly or
closely and substantially[ ] affect[ing] such commerce.” 45 U.S.C. § 51.
LaJeunesse worked as a Motorized Track Inspector at the BNSF railyard in Belen, New
Mexico, on December 20, 2017, when he allegedly drove his BNSF-assigned Kubota at
approximately 5-8 miles per hour and “unexpectedly . . . struck a consecutive series of 3 large
washed-out holes that were about 18” deep.” (Doc. 1) at 2. LaJeunesse contends the injury
occurred around 10:00 a.m. and caused “immediate pain in his back, but continued working the
rest of his shift.” (Id.) The parties agree that LaJeunesse “was in the course and scope of his
employment” at the time of the alleged incident and that his “duties at the time . . . [were] in
furtherance of interstate commerce.” (Doc. 15) at 3.
The sole count brought against BNSF claims “negligence; violation of [FELA],” based
on BNSF’s purported failure to: 1) “maintain the Kubota in a safe operating condition;” 2)
“provide LaJeunesse with a work vehicle that was of sufficient size to safely carry the tools and
equipment required for his assigned duties;” and 3) “maintain the right-of-way alongside the lead
track in a safe condition.” (Doc. 1) at 3.
BNSF now moves for dismissal of LaJeunesse’s complaint as a sanction for LaJeunesse’s
alleged discovery abuse, under Federal Rules of Civil Procedure 26, 37, and 41, and the Court’s
inherent authority. (Doc. 53). Specifically, BNSF alleges LaJeunesse lied, under oath, in written
discovery responses and at his deposition; purposefully engaged in obstructionist behavior at his
deposition; and misrepresented facts or otherwise obstructed BNSF’s access to discoverable
LaJeunesse argues that his “lies” are nothing more than miscommunications or
misunderstandings. To the extent the Court disagrees with this description, LaJeunesse contends
that BNSF obtained access to all information it sought and may make use of the “lies” as
concededly fertile grounds for cross-examination at trial.
Standard of Review
“It has long been understood that ‘[c]ertain implied powers must necessarily result to our
Courts of justice from the nature of their institution,’ powers ‘which cannot be dispensed with in
a Court, because they are necessary to the exercise of all others.’” Chambers v. NASCO, Inc.,
501 U.S. 32, 43 (1991) (quoting United States v. Hudson, 7 Cranch 32, 34 (1812)); Chavez v.
City of Albuquerque, 402 F.3d 1039, 1043 (10th Cir. 2005) (quoting Chambers, 501 U.S. at 43).
Such inherent equitable powers include the power to “impose the sanction of dismissal with
prejudice because of abusive litigation practices during discovery.” Garcia v. Berkshire Life Ins.
Co., 569 F.3d 1174, 1179 (10th Cir. 2009).
Dismissing a case for discovery abuse rests within the sound discretion of the trial court.
Chavez, 402 F.3d at 1044. However, “[b]ecause dismissal is such a harsh sanction, it is
appropriate only in cases of ‘willfulness, bad faith, or [some] fault of petitioner.’” Id. (alteration
in original) (quoting Archibeque v. Atchison, Topeka, and Santa Fe Railway Co., 70 F.3d 1172,
1174 (10th Cir. 1995)). Factors courts should consider when determining whether dismissal is
an appropriate sanction include:
(1) the degree of actual prejudice to the defendants; (2) the amount of interference
with the judicial process; (3) the culpability of the litigant; (4) whether the court
warned the party in advance that dismissal of the action would be a likely sanction
for noncompliance; and (5) the efficacy of lesser sanctions.
Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992) (internal citations and quotation
omitted). “This list is not exhaustive, nor are the factors necessarily equiponderant.” Chavez,
402 F.3d at 1044. Dismissal is warranted when “the aggravating factors outweigh the judicial
system’s strong predisposition to resolve cases on their merits.” Ehrenhaus, 965 F.2d at 920.
Abuse of the Discovery Process
At issue is the conduct of LaJeunesse and his counsel throughout the discovery phase of
this lawsuit. BNSF points to written discovery responses and LaJeunesse’s deposition as the
primary sources of misinformation. To assess the multifarious issues raised in the Motion to
Dismiss, the Court addresses, in the order presented, the individual instances of misconduct
alleged by BNSF.1
As an initial matter, the Court notes that LaJeunesse verified his interrogatory answers on
June 21, 2018, “under penalty of perjury” and stated that his answers were “true and correct to
the best of [his] knowledge, information and belief.” (Doc. 56-3). LaJeunesse testified under
oath at his July 10, 2018, deposition. (Doc. 56-4) at 39 (court reporter’s certification that she
administered oath to LaJeunesse). At his deposition, LaJeunesse testified that all of his answers
were truthful to the best of his ability, that he understood he was testifying under penalty of
perjury, and that he did not want to change any of his answers. (Doc. 56-4) at 37-38 (LaJeunesse
A. Previous Back Injuries
Interrogatory No. 9 asked LaJeunesse:
Were your back, buttocks, or lower extremities injured (in any manner) or had you
treated with any medical providers for back, buttocks, or lower extremities
complaints prior to December 20, 2017? If so, please identify:
(a) The type of injuries that you had;
(b) How the injury was caused;
(c) What medical provider(s) treated the injuries; and
(d) Identify any person or entity that you believe was responsible for the injury.
BNSF also complains of “other discovery abuses,” including conduct of LaJeunesse’s counsel.
(Doc. 56) at 38-41. Notably, BNSF does not squarely move for sanctions against LaJeunesse’s
counsel. The Court does not consider these matters as essential to deciding this Motion to
Dismiss, and, therefore, omits discussion of the same.
(Doc. 56-5) at 3-4. LaJeunesse answered:
a) In 2012 I injured my back in California working for BNSF Railways, herniated
b) Injury was caused by a stuck laser on the Geo Truck. I went to pull the laser
off the back of the BNSF work truck when I heard a loud pop and was instantly
paralyzed. I flew home and went to ER in NM.
c) NM orthopedics, Paradigm, and Dr. Barkalow[.]
d) BNSF railway[.]
(Id.) at 4.
At his deposition, La Jeunesse testified consistently with his Interrogatory answer that he
previously experienced back pain when he injured his back in 2012, and that the 2012 injury was
his first experience with back pain. (Doc. 56-4) at 26-27 (LaJeunesse Dep. 361:25-362:5).
Pursuant to a records release, BNSF obtained a June 28, 2010, medical record from
Certified Nurse Practitioner (CNP) Susan Banks, with whom LaJeunesse had an ongoing
treatment relationship, indicating an appointment for “sciatic nerve?” pain with an intensity of
8/9 out of 10, that persisted for over a month. (Doc. 56-7) at 1. The note reads: “Shooting pain
at coccyx [sic] – intermit – is rt moving heavy objects x 1 month.” (Id.) In the history section,
the note reads: “One month ago, he was working on a thinning project for soil conservation and
he was sharpening a saw and bent over and suddenly felt a sharp pain in R posterior iliac crest.
Now the pain is bilateral in the S-I joint area and it hurts to lie down or bend over.” (Id.)
LaJeunesse experienced “point tenderness posterior S-I joint area[;] full [range of motion] hips 0
pain[;] pain on flexion at waist.” (Id.) CNP Banks diagnosed LaJeunesse with back strain, sent
him for lumbar-spine x-rays, referred him to “Dr. Michael Crawford in Santa Fe for chiropractic
[treatment],” and advised him to follow-up as necessary. (Id.) at 2.
LaJeunesse never clarified or amended his deposition testimony or his Interrogatory
answer. Instead, he submitted a Declaration in response to the Motion to Dismiss. (Doc. 64-2)
(Declaration of J. LaJeunesse). In relevant part, that Declaration states:
With respect to the pain I experience in June 2010, I did not remember until
Defendants provided my medical records that I experienced pain in my tail bone
when I was bending at work over eight years ago. I was referred to a chiropractor
and my doctor told me to just take it easy. The issue seemed to resolve itself without
any further treatment.
(Id.) at ¶ 2.
In response to the Motion to Dismiss, LaJeunesse contends he “simply forgot”
about the 2010 incident because it “resulted from bending over rather than a memorable
injury,” and because “eight years elapsed before the interrogatory and deposition.” (Doc.
64) at 6. He also argues that this is essentially a non-issue because he disclosed CNP
Banks as a witness in initial disclosures. (Id.) at 4-6.
The Court finds it not credible that LaJeunesse did not remember month-long pain
that prevented him from comfortably standing up or laying down, and which resulted in
spinal x-rays. Notably, LaJeunesse never submitted amended interrogatory responses or
corrected his deposition testimony. This failure to recall a previous back injury does not
constitute a mere oversight, but instead evinces a pattern of LaJeunesse misrepresenting
his history and abilities.
B. Extent of Injuries and Post-Incident Activities
Interrogatory No. 5 asked LaJeunesse to:
Describe the physical or leisure activities/hobbies/sports/labor you were able to and
regularly performed prior to December 20, 2017, and any changes in your ability
to engage in the leisure activities/hobbies/sports or ability to perform physical labor
subsequent to December 20, 2017.
(Doc. 56-5) at 2. LaJeunesse answered:
Prior to Dec. 20, 2017, I played sports: weight training, running, basketball,
softball, and volleyball. I have prided myself as being able to do any job for BNSF.
Trackman to Inspector, I was able to work with the best. Now I cannot pick up my
14-month-old without pain.
At his deposition, LaJeunesse testified that after the December 20, 2017, incident, his
doctor put him on a light duty restriction, meaning that he could lift no more than twenty (20)
pounds. (Doc. 56-4) at 13 (LaJeunesse Dep. 127:5-15). LaJeunesse stated, however, that he has
lifted more than twenty (20) pounds at the gym since December 20, 2017, but has done so
“[v]ery little, very little.” (Id.) (LaJeunesse Dep. 127:16-18). The following exchange occurred
when BNSF asked what things LaJeunesse had done at the gym since December 20, 2017:
Tell me the things you have done at the gym that are over 20 pounds.
I can do a little bit of press, the bench press, no back, nothing back that I
can bend over. I can do a little bit of leg stuff that’s over 20 but --
When you say over 20, are you talking 25, 30?
Yeah, probably about 25, 30, something like that, that’s what I will rep it
and just of -- but, I mean, this is all built by my PT. You know, this is his
regimen. This is what he wants me to do.
And whether it’s -- well, let me ask you this: At the gym, are you able to lift
anything greater than 50 pounds?
I’m sure I could on my legs, I’m sure.
Okay. Have you attempted to?
Rarely. I won’t try to chance it.
So tell me, it sounds like, if I understand your answer, rarely you have
attempted to lift more than 50 pounds?
Well, the doctor wanted me to start -- Mr. Esparza wanted me to start
increasing my load to see how good I was going to be to get a full release,
and I am yet to -- I try it, but I am yet to sustain a good amount of weight.
So what’s the maximum that you are able to increase your load to at Dr.
That he has got, he has got me to do 20 pounds. That’s all he’s got me now
-- Dr. Esparza. But the physical therapist, under his orders, has me working
out on his regiment. And none of them is over 20 pounds. It’s like 30, you
know, anything at the most. Most of it is Total Gym, so it’s your own body
weight when I go work out there.
Yeah, that’s what I am trying to understand, though. The gym -- maybe I
now understand it -- have you lifted anything at the gym more than 20
Yeah, I have.
Tell me the most you have lifted at the gym.
I want to say 50 pounds to at least -- I try to mimic myself to lift something
that’s going to be the same that I lift, like what we use as tools for BNSF.
So our minimum tool that I use, which would be a jack, and that’s 40 some
pounds. So I got to figure I got to lift at least that much to be able to get
back to work. And I can do it for a little bit, but not -- not too long,
So tell me right now how frequently you lift 50 pounds at the gym.
I don’t go to the gym at all. Right now it’s zero.2
All right. In the last -- well, since December -- how about that -- since
December of 2017, how frequently have you lifted a maximum of 50 pounds
at the gym?
This testimony, relating to LaJeunesse’s gym usage in July 2018, is addressed infra in
I don’t know how many times I have lifted it. I would say a handful, maybe
Okay. Have you ever attempted to lift more than 50 pounds?
I attempted, because when I was told to attempt, and it wasn’t happening.
What was the maximum you attempted?
I think I can do the 20 pounds like Dr. Esparza says. I think I can do that.
You said you attempted more than 50.
I am trying to understand what the maximum over 50 you attempted is.
Oh, over 50, I would say about 50, 50 -- maybe -- I don’t know. I would be
lying. I don’t know what’s the max I have done.
Less than 100, I assume?
Oh, yeah, definitely less than 100, yeah.
When you say you tried, you tried with something just around 50 pounds?
Well, I was told to -- not told. I was asked to start working again, start doing
physical activity, to start to see, because, you know, I am in the laborious
field of our -- of the railroad. And so I started to do some, and I just can’t
hand, man. It’s just unfortunate, but I just -- can do things. I just can’t do
And then that’s what I want to know. You said you did some bench press.
I understand what that is. You said you did some legs. What were the legs
things you did?
Just the squats. He has me doing -- with the body -- it's the body gym. It’s
just your own weight. You can do a bunch of squats and –
So not weighted squats, but just physical weights?
I have been adding a little bit, because it’s still weighted, because you are
weighted on that machine, because you are doing your body weight is what
you’re doing. So you are lifting weight. It’s just so I will compensate, so
my body weight on the machine would be less, probably like 30 pounds
compared to adding plus much more, you know. And so that’s where I am
at on the -- on that, but that’s the last time I --
-- she asked me, is it a Smith machine?
What is it, 40 -- no, no, no. I have been using the -- all six stationary
machines, all stationary. I can’t --
He wants me on the body, it’s a glider, it’s a glide, but it’s a stationary leg
Gotcha. So you are not free weight lifting?
Very little when I do, and when I do, it’s like 20 pounds. We are not doing
any -- anything.
(Doc. 56-4) at 13-14 (LaJeunesse Dep. 128:1 – 133:24). LaJeunesse continued:
What’s the maximum amount -- since we are talking about squats, we will
go there -- what's the maximum amount you have tried to squat since your
I tried to do my body weight when he told me to try and get back to -- get
back to gym, back to working mode, and I couldn’t do it.
When you say your body weight, meaning?
I weigh 190 pounds, so I try to at least do half of that, which without -- you
know, because the Smith machine weighs a little bit. So I tried probably
like a hundred, about 100 pounds, and I couldn’t do it. I had two 45s on
each side, and I couldn’t do it, so I stopped.
I’m surprised. So you tell me, since that accident, you have squatted over
The doctor had -- under -- under -- under the physical therapist is a -- with
him, I squatted to get back to work to see if I was able to return back to
work, because I have to do assessment, and I couldn’t do it, so -10
(Doc. 56-4) at 28 (LaJeunesse Dep. 367:25 – 368:20). LaJeunesse then testified he was unable
to pick up his 14-month-old daughter without pain. (Id.) (LaJeunesse Dep. 369:19-22).
During the deposition, BNSF confronted LaJeunesse with surveillance video of a man
who appears to be LaJeunesse performing multiple repetition sets of squats on a Smith machine,
time stamped April 22, 2018, at 7:56:48AM. (Doc. 56-9) (Clip 3). When asked if he recognized
the person in the video or recognized himself in the video, LaJeunesse responded: “I don’t know
who it is. I can’t tell. It’s too blurry,” and “[i]t’s too blurry, no.” (Doc. 56-4) at 31 (LaJeunesse
Dep. 416:6-7; 416:20). When asked what the person in the video was doing, this exchange
What is the guy doing in the video? I understand you have denied --
I don’t know what he is doing. I can’t see. It’s very blurry.
You can’t see that he’s squatting?
I can’t see. That’s your opinion. I don’t know.
(Doc. 56-4) at 32 (LaJeunesse Dep. 420:9-16).
BNSF pressed LaJeunesse on whether he had squatted 275 pounds since December 2017.
The following exchange transpired:
Can you squat 275 [pounds] since December of 2017?
I don’t know.
Have you tried to squat 275 since December of 2017?
I have no -- I have no -- I don’t know, no. I don’t know.
You don’t know whether you have attempted to squat 275 or not?
I never -- I never added weight no, I don’t know. I’m sorry.
My question, to be clear, because this is really important, you don’t know
yes or no whether you have attempted to squat, I will say over 200 pounds
since December of 2017?
That, I don’t know if I have or not. I never measured.
(Doc. 56-4) at 32 (LaJeunesse Dep. 420:23 – 421:14).
The Court reviewed the weight-lifting video, along with photographs of LaJeunesse and
portions of LaJeunesse’s videotaped deposition, and notes that the individual in the video
resembles LaJeunesse.3 Additionally, the video depicts the man placing what appears to be one
round, black, standard twenty-five (25) pound weight on each side of the bar of a Smith machine.
(Doc. 56-9) (Clip 3 at 0:10-0:23). At 0:29 on the video, the man ducks his head under the bar,
places the bar across his shoulders, and performs eight repetitions of weighted back squats to an
approximately 90-degree bend of the knees. (Id.) (Clip 3 at 0:33-0:57). At 1:02, the man bends
Compare Exh. 11a (Doc. 56-11) at 1 (screen shot from weight lifting video), with Exh. 13
(Doc. 56-13) (screen shot from LaJeunesse’s videotaped deposition).
at the waist and knees to pick up what appears to be a large, black, standard 45-pound plate.
(Id.) The man places one 45-pound weight on each side of the bar, in addition to the 25-pound
weight on each side of the bar. (Id.) (Clip 3 at 1:02-1:16). At 1:39, the man again ducks under
the bar and performs five visible weighted back squat repetitions to an approximate 90-degree
bend of the knees. (Id.) (Clip 3 at 1:39-1:54). After finishing the second set, the man bends at
his waist to grab another 45-pound plate, which he lifts one-handed to waist level. (Id.) (Clip 3
at 1:59 – 2:01). The man adds a second 45-pound plate to each side of the bar. (Id.) (Clip 3 at
2:02-2:14). The weight, not including the weight of the bar, now totals 230 pounds (two 45pound weights plus one 25-pound weight on each side = 115 pounds per side; x 2 sides = 230
pounds).4 Again, the man performs six repetitions of weighted back squats to an approximate
90-degree bend of the knees. (Id.) (Clip 3 at 2:45 – 3:03).
Upon completion of this third, heaviest set, the man returns the 45-pound weight plates to
the rack, and returns to the Smith Machine with 50 pounds of weight on the bar. (Id.) (Clip 3 at
3:12-3:41). The man then returns to the bar and performs two sets of weighted standing lunges
to a 90-degree bend of the knees, with each set comprising multiple lunges per leg. (Id.) (Clip 3
at 3:42 – 5:27).
In response to Requests for Admissions propounded to him after the deposition,
LaJeunesse ultimately admits that he is the man in the weight-lifting video. (Doc. 56-14) at 2.
This calculation does not take into account the weight of the bar, which is either 45 pounds or
15 pounds, depending on which version of LaJeunesse’s answer one accepts. Compare (Doc.
56-4) at 28 (LaJeunesse Dep. 366:24 – 367:3 (“A: I think the bar weighs 45 pounds by itself if
you are using a Smith machine, but if you are using other weight, you don’t even have to squat
using -- you can squat with dumbbells in your hands.”)), with (Doc. 64-2) at ¶ 3 (Declaration of
J. LaJeunesse (“It is my knowledge from over twenty years of working out that a Smith Machine
bar is fifteen pounds compared to a forty-five pound barbell.”)).
LaJeunesse asserts, in response to the Motion to Dismiss, that he did not recognize
himself in the video at the time of his deposition because the “video was played on a small tablet
and was of poor quality.” (Doc. 64) at 7. He further argues that BNSF “assumes the quantity of
weight added and the weight of the bar in its Motion without evidence.” (Id.)
Finally, LaJeunesse notes that a Smith Machine differs from free lifting or dead lifting,
including the notion of dead lifting a child from a bent over position. Notably, BNSF submitted
a Los Lunas Police Department lapel video, dated January 12, 2018, as Exhibit 47 to its Reply.
In the video, LaJeunesse is seen holding what appears to be a 14-month old child, including
bending over and standing up with the child in his arms. The Court notes no apparent distress or
discomfort. (Doc. 73-7).
In his Declaration, LaJeunesse states:
When I was shown the April 22, 2018 video at my deposition, it was a short video
clip that was shown to me on a small tablet screen. I did not want to admit to
something that I was unsure about until I had more time to review the video. I
worried that BNSF’s lawyers were trying to trick me. I could not see from the video
what the weights were or how much the bar weighed. It is my knowledge from
over twenty years of working out that a Smith Machine bar is fifteen pounds
compared to a forty-five-pound barbell.
(Doc. 64-2) at ¶ 3.
The Court finds it disingenuous, at best, that LaJeunesse claims he could not
recognize himself in the video. Furthermore, the argument that BNSF “assumes” the
amount of weight loaded on the Smith Machine is simply specious. The weight lifting
video obviously shows LaJeunesse loading two 45-pound plates on each of the bar, after
loading one 25-pound plate on each side of the bar. It is not believable that LaJeunesse
did not remember squatting over 200 pounds at the gym within two months of his
C. Physical Therapist
LaJeunesse testified, under oath, at his deposition that his physical therapist instructed
him to exceed the twenty-pound lifting restriction and had given him a written regimen that
included lifting 45-pound plates. (See Doc. 56-4) at 13 (LaJeunesse Dep. 128:7-13, quoted
supra). He further stated that the physical therapist “has me working out on his regimen,” which
included lifting “at the most” 30 pounds and using a Total Gym, “so it’s your own body
weight[.]” (Id.) (LaJeunesse Dep. 129:14-19, quoted supra).
Later in the deposition, LaJeunesse admitted to picking up a 45-pound plate after
December 20, 2017, but stated that this did not violate the 20-pound lifting restriction. (Doc. 564) at 33 (LaJeunesse Dep. 422:23 – 423:9). The following exchange unfolded:
Have you ever handled a 45 pound plate at a gym since December of ’17?
Have you picked one up and put it on a rack of any kind? Have you picked
up a 45 pound plate since December of ’17?
Did that violate your lifting restrictions?
No, because I was -- I'm still under my physical therapist, his guidelines for
Has a physical therapist told you to lift 45 pound plates at the gym?
Physical therapist wants me to work out.
Has a physical therapist told you to lift 45 pound plates at a gym?
Oh, yes, definitely.
Tell me the physical therapist who told you that.
It’s a -- his name is Aragon. His name is the same physical therapist that
made me a workout for the -- for Planet Fitness, so I didn’t have to keep
going to the physical therapy. He made me a regimen, yes.
And the regimen he gave you included lifting 45 pound plates?
It included strength training.
Did the regiment include lifting 45 pound plates?
I don’t know.
Did the regimen include doing squats of 275 pounds?
I don’t know.
So how do you follow the regimen if you don’t know what it is?
Because I don’t know.
(Doc. 56-4) at 33 (LaJeunesse Dep. 422:23 – 424:10). BNSF pressed LaJeunesse on the lifting
Well, haven’t you received a recommendation, a restriction of 20 pounds?
Just recently, yeah.
And you violated that restriction, didn’t you?
I am under the direction of my physical therapist, which is a doctor. So I
am under his guidance, and he has already written many statements saying
that this is his regimen.
All right. Do you have a -- have you seen something from your physical
therapist that says you should lift 45 pound plates?
No. But if you want, I can get it for you.
No. The physical therapist has already wrote all the stuff, that I am under
the direction of my doctor. I work out with him.
The physical therapist makes the regimen that I take to work out at at home,
and at home or in the gym.
It’s a written regimen?
Yeah, he has a written what he wants me to do, yes.
(Doc. 56-4) at 33-34 (LaJeunesse Dep. 425:7 – 427:11). LaJeunesse testified that he did not
know if the written regimen said he should lift 45-pound plates or do squats with 200 pounds.
(Doc. 56-4) at 34 (LaJeunesse Dep. 427:12-25). Despite testifying that he did not know what
exercises were listed on the written regimen, LaJeunesse stated that he does not bring the paper
to the gym with him because “it’s already become [his] routine” and he has been doing that
routine for an extended period of time. (Id.) (LaJeunesse Dep. 428:1-12).
The physical therapist, Isaac Aragon, Doctor of Physical Therapy (DPT), produced a
letter explaining that he had been treating LaJeunesse for “Lumbar Disc Degeneration and
Spondylosis from 1/4/18 to 4/19/18.” (Doc. 56-15). Aragon expressly states that LaJeunesse
“was eventually discharged from care, as [Aragon] felt he was fully independent with home
exercise program, and applying rehab principles to his own workout regimen.” (Id.) Further,
Aragon “cleared [LaJeunesse] for participation in resistance training and cardiovascular exercise
while adhering to the aforementioned principles, making clear that [LaJeunesse] is to remain
under the restrictions set forth by his referring provider until notified otherwise.” (Id.)
The “written regimen” includes body weight exercises – that is, using one’s body as the
only weight – and two exercises using a weight: a “bird dog,” including a five-pound row
exercise; and wall squats with a Swiss ball, holding a six-pound weight. (Doc. 56-17) at 1-3; see
also (Doc. 56-20) (Paradigm exercises).
Request for Admission 12 asked LaJeunesse to “[a]dmit that squatting 200 pounds or
more of weights added to your body weight was not part of the ‘regimen’ provided to you by
your physical therapist that you testified about on July 10, 2018.” (Doc. 56-14) at 2. LaJeunesse
marked “DENY” and explained: “As Plaintiff previously explained, he understood that he was
permitted to lift weights equal or less than his body weight, so this would depend on his body
LaJeunesse later responded to BNSF’s Second Requests for Admission, served on him on
October 4, 2018 (see Doc. 50) (Certificate of Service):
In response to the Motion to Dismiss, LaJeunesse asserts that he was “mistaken about his
physical therapist’s instructions.” (Doc. 64) at 10. In his Declaration, LaJeunesse states:
Dr. Esparza told me to try to do exercises that would help me get back to work. My
physical therapist told me that I could lift “up to my body weight.” I believe I
weighed just over 200 lbs in April, and believed that meant he was advising me that
I was permitted to lift just over 200 lbs.
(Doc. 64-2) at ¶ 6.
The Court finds that LaJeunesse’s answers are, at best, inconsistent and knowing
misrepresentations. On the one hand, he admits that no medical provider instructed him
to exceed the 20-pound lifting restriction. On the other, he submits a Declaration to this
Court, under penalty of perjury, averring that he believed Isaac Aragon told him he could
lift up to 200-pounds. LaJeunesse cannot have it both ways. Furthermore, LaJeunesse
declares that he has over twenty years of weight lifting experience. No person with that
much physical training experience could believe that a body weight restriction imposed
following an injury would mean loading the bar with weight equal to one’s body weight.
Indeed, “body weight” exercises mean, as established by Isaac Aragon and the written
exercise sheets, using one’s body as the weight.
D. Gym Use
LaJeunesse testified that he had not gone to the gym at all in the thirty (30) days
preceding his deposition on July 10, 2018. (Doc. 56-4) at 12 (LaJeunesse Dep. 124:13-18).
LaJeunesse testified that, prior to this recent hiatus, the physical therapist had him “on a pretty
good regimen . . . going like three days a week,” with semi-weekly appointments at Paradigm
(the physical therapist’s office), after which LaJeunesse would go to Planet Fitness (a gym).
(Id.) (LaJeunesse Dep. 125:6-16). He then testified that he had not been to Planet Fitness in
about 60 days, his “account is already closed there and everything,” and he had not joined
another gym. (Id.) (LaJeunesse Dep. 125:17-25). BNSF attempted to confirm that LaJeunesse
had not been to Planet Fitness for the preceding 60 days. LaJeunesse equivocated, and stated:
“Within 60 days, maybe, maybe -- I could pull a log. I would say maybe three times in 60 days,
mostly to do some light cardio and stretching, but not much.” (Id.) at 13 (LaJeunesse Dep.
126:3-6). Later in the deposition, LaJeunesse reverted to saying he had not been to Planet
Fitness “in almost two months.” (Id.) at 35 (LaJeunesse Dep. 431:18-23).
BNSF subpoenaed LaJeunesse’s Planet Fitness logs. The logs reflect that, prior to his
July 10, 2018, deposition, LaJeunesse checked in at Planet Fitness on:
February 14, 21, 27, and 28, 2018
March 9, 12, 13, 14, 17, 19, 20, 23, 26, 29, and 31, 2018
April 2, 4, 5, 8, 13, 22, 23, 28, and 29, 2018
May 2, 3, 6, and 16, 2018
June 9, 16, and 17, 2018
(Doc. 56-12) at 1 (Planet Fitness logs).
After his deposition, LaJeunesse checked in at Planet Fitness on:
July 15, 25, 29, and 31, 2018
August 1, 3, 8, 9, 11, 15, 18, 20, 21, 22, 23, 24, 25, and 29, 2018
September 1, 5, 7, and 8, 2018
(Id.) at 2. The logs submitted in evidence stop after September 8, 2018.
Indeed, the payment records attached to the Motion to Dismiss reflect no break in
LaJeunesse’s Planet Fitness membership from at least February 17, 2018, through at least
September 19, 2018. (Id.)
In response to the Motion to Dismiss, LaJeunesse argues that these are simply
“disagreements about the interpretations of facts—material disputes of fact,” and that he “should
have an opportunity to rebut the video evidence and explain with his own evidence what he was
doing, how the machines and weights work, and how it affected him.” (Doc. 64) at 10.
LaJeunesse does not suggest or explain what his “own evidence” might be.
LaJeunesse’s statements about the closure of his gym membership and his gym activities
are not credible. This is not a “dispute of fact” or a “disagreement about the interpretation” a
fact, it is a lie. To the country, despite being confronted with a video showing him squatting
over 200 pounds, LaJeunesse stated that he did only “some light cardio and stretching” at the
gym, but nothing else. These statements were deliberately false.
E. Prior Complaints Regarding the Kubota
At 11:37 a.m. on December 20, 2017, shortly after the incident at issue, LaJeunesse
emailed email@example.com (his union representative), Benedict J. Griego, Carl E. Gallegos, and
Raymond J. Chavez. (Doc. 56-2) (email). LaJeunesse titled his email: “Non injury statement.”
(Id.) The email reads: “Carl this is to inform you that the Kubota I have been using for the MTI
inspections is very rough riding. A solution would be to provide a vehicle to avoid claiming any
back injuries. Sent from my iPhone.” (Id.)
Interrogatory No. 8 and LaJeunesse’s answer read:
INTERROGATORY NO. 8: Prior to December 20, 2017, had you ever
complained, in any way, including but not limited to: orally or in writing and/or
through the BNSF SIRP process, to anyone at BNSF with regard to issues set forth
in your Complain regarding the incident (e.g., the Kubota that you were operating
at the time of the incident; the need for a work vehicle that was of a different size
to safely carry the tools and equipment required for your assigned duties; the
maintenance of the right-of-way alongside the lead track; providing a proper and
adequate drainage system in the area where the incident occurred)? If so, please
A description of any complaints;
The dates of any complaints;
Identify any person or entity that you reported your complaint to;
Identify the manner of any complaint.
ANSWER: I had many verbal and email conversations with the DE Ray Chavez
and RDM Carl Gallegos about the mechanical and structure issues the Kubota had
and requested a different kind of vehicle to conduct inspections. Their response
was always the same “we will look into it”.
(Doc. 56-5) at 3.
Nonetheless, at his deposition, LaJeunesse testified that his December 20, 2017, email
was the first time he told anyone at BNSF, in writing, that the Kubota was insufficient to perform
his duties or otherwise warranted any concern. (Doc. 56-4) at 15 (LaJeunesse Dep. 171:7-21).
In response to the Motion to Dismiss, LaJeunesse argues that he told the truth at the
deposition because he testified to one email communication and two verbal communications.
(Doc. 64) at 11.
The Court notes that the email communication at issue occurred after the alleged injury.
Indeed, while LaJeunesse did testify to two verbal conversations with Ray Chavez that predate
the alleged injury, his interrogatory answer states that he had “many verbal and email
conversations” with Ray Chavez and Carl Gallegos before the alleged incident on December 20,
2017. The Court finds LaJeunesse’s statements and testimony regarding his prior complaints, at
F. Prior Drug Use
LaJeunesse obtained a medical marijuana, or medical cannabis, card following the
alleged December 20, 2017, incident. (Doc. 56-4) at 2 (LaJeunesse Dep. 16:21 – 17:3)
(testifying he obtained medical marijuana card in 2018). When asked if he had used marijuana
recreationally prior to obtaining the medical marijuana card, LaJeunesse stated: “Never, never
ever.” (Id.) (LaJeunesse Dep. 17:15-18). LaJeunesse continued to be clear about his lack of
prior marijuana use:
So was March of 2018, in that timeframe, the first time you obtained a
Since high school, yes, but I have never used it on a recreational. I used it
in high school, but the doctor talked to me about the product and how he
thought it was better than the pills that have been coming out and all this
stuff, that he recommended this over anything else. And so he kind of
convinced me to go forth with it, and -- but it’s just, to be honest it’s, just
not strong enough for my pain to be honest.
So I want to make sure I understood your answer. Since high school, so
when you graduate -- what year did you graduate high school?
2000, 18 years.
So from 2000 to 2018 until you received your card in 2018, from 2000 you
were not using marijuana?
Did you possess marijuana?
I was not using -- a recreational user of marijuana.
Were you a medical user?
No. I was -- I didn’t -- I wasn’t smoking. I was never a smoker.
(Doc. 56-4) at 2-3 (LaJeunesse Dep. 17:19 – 18:19).
Later in the deposition, BNSF confronted LaJeunesse with a 2006 charge for possession
of marijuana. The following exchange occurred:
. . . references a charge of possession of marijuana as well.
What do you know about that?
It says one ounce or less, yeah, I am sure they found something in there,
my ex did. She did smoke, and so there was some around, so -- and I
probably did have some around in the area that I was charged, and I do -yes, it was a charge, and it was dismissed.
Did you possess marijuana?
It says dismissed.
I am asking you a question.
Did you possess marijuana in 2006?
Yes. There was a possession, yes, 2006.
That was after you were out of high school?
How frequently did you possess marijuana at that time --
It wasn’t --
-- after graduating high school?
It wasn’t a recreational thing.
What was it then?
It was just -- I barely -- I probably just had a little -- a little bit. I mean, it
was just a -- I'm sorry, it was a recreational -- it wasn’t a daily smoking. It
was less than an ounce, so it was probably nothing. It was probably
maybe a little bit of pot, less than an ounce.5
You were using it recreationally at that time?
No, I wasn’t -- I'm saying at the time, I probably wasn’t -- I was barely
using it. I wasn’t it using it daily. I wasn’t recreational, every day.
. . . What in your mind is very little recreational use of marijuana in 2006?
That was probably about once a month.
(Doc. 56-4) at 8 (LaJeunesse Dep. 102:7 – 104:7).
In response to the Motion to Dismiss, LaJeunesse argues that he differentiated between
“recreational” marijuana use and being a “smoker,” and somehow misapprehended that
recreational use means something different than “simply using marijuana in a non-medical
In 2006, possession of “one ounce or less of marijuana [was], for the offense, . . . a petty
misdemeanor . . . and, for the second and subsequent offenses, . . . a misdemeanor.” NMSA
1978, § 30-31-23(B)(1) (eff. June 17, 2005, through Mar. 30, 2011).
context.” (Doc. 64) at 12. LaJeunesse contends he “did not believe he was a recreational user,
because he did not use it every day,” and, therefore, he did not lie at the deposition. (Id.) at 13.
In addition to failing to acknowledge, in the first instance, his prior drug use, LaJeunesse
exhibits continued obstructionist conduct. LaJeunesse’s argument that he misunderstood or
differently understood the meaning of “recreational” marijuana use is not credible. Instead of
directly addressing the question and admitting that he occasionally used marijuana, in whatever
form, between 2000 and 2018, LaJeunesse knowingly and intentionally obstructed the discovery
process and made his deposition unnecessarily contentious.
G. Communications After the Incident
Early in discovery, BNSF asked LaJeunesse about his communications in the 48 hours
following the alleged incident on December 20, 2017. Specifically, Interrogatory No. 7 asked
LaJeunesse to “describe in detail all of your activities and communications that are related to the
December 20, 2107 [sic] incident in the 48 hours after that incident, including, but not limited to,
who you communicated with about the incident and what you told each of them.” (Doc. 56-5) at
2. LaJeunesse answered: “I communicated with RDM Carl Gallegos, Safety Assistant BJ
Griego, DE Raymond Chavez as described above.” (Id.) at 3.
At his deposition, LaJeunesse testified that he also spoke with Jeff Fry, his union
representative, but did not remember anything about the call. (Doc. 56-4) at 22 (LaJeunesse
LaJeunesse’s call log, disclosed as part of his initial disclosures, shows nine phone calls
between 8:55 p.m. on December 20, 2017, and 8:53 a.m. on December 21, 2017. (Doc. 56-23)
(LaJeunesse phone log). The call log reflects one incoming phone call and eight outgoing calls.
The outgoing calls were all to different phone numbers, and the log shows the called numbers
were located as follows: four in Albuquerque, New Mexico; one in Houston, Texas; one in
Beaumont, Texas; one to Seguin, Texas; and one toll-free number. (Id.) At least one of those
phone calls, made at 8:55 p.m. on December 20, 2017, was to a personal injury lawyer. (Doc.
56) at 26 (713-425-7200 returns to Sammons and Berry, P.C., in Houston, Texas).
While LaJeunesse initially asserted that he called the Houston law firm on the
recommendation of Jeff Fry, (doc. 64-3) at 3 (LaJeunesse Dep. 313:19-23), he later admitted that
he did not speak to Mr. Fry until 8:03 a.m. the next morning, December 21, 2017, (doc. 56-4) at
23 (LaJeunesse Dep. 332:21-25).
In response to the Motion to Dismiss, LaJeunesse asserts that he provided the call log and
testified honestly about the calls, but simply did not remember the content or order of the calls
made. (Doc. 64) at 15. LaJeunesse asserts he testified “to the best of his ability” at the
In a vacuum, the Court may have credited LaJeunesse’s statements that he simply does
not remember the people with whom he spoke immediately following the accident, the order in
which he spoke to them, or the substance of those conversations. The Court finds, in the broader
context of this litigation, that it is not believable that LaJeunesse does not remember speaking
with an attorney eight hours before he went to the hospital, (doc. 56-4) at 23 (LaJeunesse Dep.
330:2-4 (“A: At 4:00[a.m.], I made the decision a little earlier when I went to the restroom, and,
yes, I decided to go to the hospital.”), does not remember the substance of his conversations with
at least the attorney and Fry, and does not remember that he spoke to Fry – the union
representative – until after he had gone to the hospital.
H. Social Media Use
At LaJeunesse’s deposition, BNSF introduced three of his social media posts. After the
deposition, BNSF served its Second Set of requests for Production. (See Doc. 39) (Certificate of
Service). Request for Production No. 25 asked LaJeunesse to “provide copies of all photographs
or video posted by Plaintiff or anyone acting on his behalf on Facebook, MySpace, Google+,
YouTube, Instagram, Plenty of Fish, or any other social networking website and mobile social
media applications from December 20, 2017, to the present.” (Doc. 56-19) at 1.
The Response states:
Plaintiff has no additional documents responsive to this request, any documents
were discussed in Plaintiff’s deposition. Plaintiff is not aware of any accounts on
MySpace, Google+, YouTube or Plenty of Fish, however he is aware that there is
another Jeremy Lajeunesse that may have these accounts. Plaintiff has no control
whatsoever over those accounts.
(Id.) at 1-2.
BNSF, convinced that LaJeunesse possessed other responsive documents, approached
LaJeunesse and his counsel to resolve the issue. After some not always professional exchanges
and attempts to resolve the issue, LaJeunesse produced “a few more screen shots of social
media”. (Doc. 56-31).
Ultimately, LaJeunesse neither objected to nor fully complied with the Request for
Production. (See, e.g. Doc. 56-33) (additional photos not produced by LaJeunesse).
In response to the Motion to Dismiss, LaJeunesse argues that he “has long understood
that his former BNSF supervisors . . . were Facebook ‘friends’ and had immediate access to his
public and private Facebook posts.” (Doc. 64) at 16. LaJeunesse argues that his failure to
properly respond to Request for Production No. 25 is excusable because “he believed Defendant
already could access” those materials. (Id.) at 16-17. Indeed, in his Declaration, LaJeunesse
states: “I assume that John and Carl take screenshots of everything I post anywhere and give it to
BNSF’s lawyers.” (Doc. 64-2) at ¶ 8. Therefore, LaJeunesse asserts he did not misrepresent his
social media use.
LaJeunesse points to no authority which would permit him to neither object nor respond
to a request for production based on having Facebook friends or Instagram followers who work
for the opposing party. Indeed, LaJeunesse tacitly admits to having responsive materials that he
knowingly and willfully refused to produce. The Court finds that LaJeunesse knowingly,
intentionally, and willfully misrepresented his social media use in response to Request for
Production No. 25.
LaJeunesse has owned at least one motorcycle at a time for the last fifteen years. (Doc.
56-4) at 19 (LaJeunesse Dep. 229:3-8). At the time of his deposition, LaJeunesse owned a
Harley-Davidson Fat Bob motorcycle, could not remember if he purchased the motorcycle
before or after December 20, 2017, but testified that he did not buy a new one “recently.” (Id.)
(LaJeunesse Dep. 227:12 – 228:6). When asked how frequently he rides the motorcycle,
LaJeunesse stated: “Not too often unfortunately, but I would say maybe I like to go once a week,
somewhere, at least to get on it. I feel like I’ve -- spending my money somewhere.” (Id.)
(LaJeunesee Dep. 228:9-13).
After the deposition, BNSF sent LaJeunesse a request to produce “[a]ny and all service,
repair, purchase or sale records for any motorcycle or motorbike owned by you from December
20, 2017, to the present date.” (Doc. 56-19) at 1 (Request for Production No. 24). LaJeunesse
responded that he “has no documents responsive to this request, any documents are outside the
requested date range.” (Id.)
BNSF followed up on this issue by letter dated September 5, 2018. (Doc. 56-28) at 2
(letter to LaJeunesse’s counsel). In the letter, BNSF states: “We believe Plaintiff purchased a
Harley Davidson in February 2018 and/or March 2018. So is he saying responsive documents
just aren’t in his possession? He hasn’t gotten any oil changes on any of his bikes in the last
eight months?” (Id.) LaJeunesse’s counsel responded via email on September 26, 2018, and
stated: “It is my understanding that Mr. Lajeunesse has not purchased a motorcycle in the
timeframe given based on his deposition. It is my understanding that he has had no oil changes
because he has not been riding the motorcycle much if it all since his injury.” (Doc. 56-29) at1
(response letter from LaJeunesse’s counsel).
However, LaJeunesse posted a photo of a motorcycle to his Instagram account on March
27, 2018, with the caption, “New Bae! #harleydavidson #fatbob #114 #bobber #projectbobber.”
(Doc. 56-26) at 2. Additionally, a Sales Deal Summary from Duke City Harley-Davidson,
produced pursuant to a subpoena from BNSF, shows that LaJeunesse purchased the Harley
softail Fat Bob motorcycle on March 27, 2018, for a total unit price of $19,489.00, with an
additional $1,241.67 in other fees. (Doc. 56-35). LaJeunesse made a $900.00 down payment,
and financed the remaining $19,830.67 through Harley-Davidson at 22.350% APR over an 84month term. (Id.) All told, LaJeuensse committed to make 84 monthly payments of $468.85,
totaling $39,383.40. (Id.)
The record suggests LaJeunesse never corrected or updated his response to the Request
for Production or his deposition testimony to reflect the motorcycle purchase.
In response to the Motion to Dismiss, LaJeunesse’s counsel appears to take responsibility
for this “misunderstanding.” The Response states: “It became clear during good-faith
correspondence that Plaintiff’s counsel misinterpreted Plaintiff’s testimony and believed he said
he did not purchase a motorcycle after the injury.” (Doc. 64) at 13. Thus, LaJeunesse argues
that he was honest at the deposition and any disingenuous response to the Request for Production
fell to counsel’s lack of competence, diligence, and/or communication.
The Court finds this episode particularly troubling because it implicates the
attorney/client relationship. Counsel’s statements, however, are not material to deciding this
Motion. Instead, the Court notes that LaJeunesse committed himself to $40,000 of payments on
a motorcycle over a period of seven years, while claiming that he is too injured to ride the
motorcycle and too injured to work. The Court finds it unbelievable that LaJeunesse did not
remember purchasing the Fat Bob motorcycle three-and-a-half months before his deposition, and
construes LaJeunesse’s misrepresentations on this point as willful and knowing.
J. Obstructionist Behavior6
LaJeunesse does not claim a brain injury or any other sort of mental infirmity.
Furthermore, he testified that he had not used medical marijuana for approximately three days
prior to his deposition, (Doc. 56-4) at 2 (LaJeunesse Dep. 14:9-21), nothing impaired his ability
to answer questions truthfully, (id.) at 37 (LaJeunesse Dep. 453:16-25), and he understood he
was testifying under penalty of perjury, (id.) at 38 (LaJeunesse Dep. 454:3-5). After confirming
these things, the following exchange occurred:
So when you have answered your questions you don’t know, then you have
absolutely no knowledge on them?
Yeah, that’s the truth. Yeah, the truth.
All right. So you stand by each and every answer you have given today as
the . . . as the complete truth?
Instances of “obstructionist behavior” appear peppered throughout BNSF’s Motion to Dismiss.
For ease of reference, the Court aggregated each instance into this section.
Yes. Again, yes.
(Doc. 56-4) at 38 (LaJeunesse Dep. 454:17 – 454:18).
Nonetheless, LaJeunesse answered questions with some variant of “I don’t know” or “I
don’t remember” a purported 293 times during the deposition. (Doc. 56) at 32. Some, though
certainly not all, examples of “I don’t know” or “I don’t remember” include not being able to
identify his truck in video or photographs, not being able to identify himself in video, not
recognizing or remembering conversations immediately following his alleged accident, and not
knowing or remembering the size of the potholes that allegedly caused his injury. Below, the
Court addresses three instances of LaJeunesse’s obstructionist behavior at the deposition.
1. Inability to Identify His Truck
With respect to LaJeunesse’s inability to identify his truck, the following exchange
transpired after LaJeunesse viewed a surveillance video of him and his truck at a Home Depot:
Again, is that you in the back of your truck?
. . . You jumped from the tailgate of your truck to the ground, correct?
Can you jump in and out of your truck today?
I don’t know how far -- that particularly wasn’t very far. That was less
than what we are looking at. And so if I can jump out, I don’t -- if I can
do that, I can probably that height, yes, I can.
Well, sir, that’s your truck, right, your black Dodge?
Have you seen it?
Sir, is that your truck?
I can’t see the license plate on it.
Look at the picture, and tell me, does that appear --
I can’t --
-- to be?
I see half a truck, so I don’t know. Sorry.
Does that appear to be your truck?
I can’t tell from that picture. I’m sorry.
Do you recall if you used your truck on that date?
I cannot recall.
So you don’t know one way or the other whether that’s your truck?
I can’t tell.
Well, do you have a Harley-Davidson sticker in the back of your truck?
I can’t tell if it’s a Harley-Davidson sticker.
Do you have a sticker in back of your truck?
I have multiple stickers in the back of my truck.
Do you have two stickers in the back part of your truck?
But you’re telling me that that’s --
Stop. Do you have two stickers in --
-- the back of your truck?
Do those stickers appear to be similar to the stickers you have in the back
of your truck?
Your picture is so blurry I can’t -- I don’t know.
So you are really going to deny that’s your truck?
Well, you’re telling me that it --
Hold on. Do you deny that’s your truck?
I say your picture is blurry is what I am saying.
Okay, I’m going to ask you my question.
That’s all I’m saying.
Yes or no, do you deny that’s your truck?
I don’t know.
I answered it. I don’t know.
My question is yes or no, are you denying that your truck?
I don’t --
That’s a nonresponsive answer. Either you are denying that’s your truck,
or you are not denying that’s your truck.
I’m still going to --
I’m still going to say I don’t know.
(Doc. 56-4) at 29-30 (LaJeunesse Dep. 407:14-16; 409:10-12; 409:25 - 412:24).
The Home Depot video LaJeunesse viewed is attached to the Motion to Dismiss as Doc.
56-9, clips 1 and 2. The Court reviewed these videos. Clip 1 is fourteen seconds long and timestamped at 2:46:55 p.m. on April 21, 2018. (Doc. 56-9) (Clip 1). The video begins with
LaJeunesse standing on the ground near a truck. The tailgate of the truck is open, and the opened
tailgate is approximately elbow-height on LaJeunesse. (Id.) at 0:01. LaJeunesse then lifts his
left leg straight onto the tailgate and jumps up. (Id.) at 0:02. Once in the back of the truck,
LaJeunesse is bent all the way over at the waist, with both hands appearing to be on the truck
bed, both feet on the truck bed, and his knees slightly bent. (Id.) LaJeunesse then stands up,
with no apparent discomfort. (Id.) at 0:03. From 0:04-0:07, the video shows LaJeunesse
bending at the waist to move something in the truck. The truck is black, appears to be raised,
and has what appears to be two stickers on the passenger-side of the rear window, one of which
appears to be a Harley-Davidson sticker.
Clip 2 is twenty-eight seconds long and time-stamped at 2:47:11 p.m. on April 21, 2018.
(Doc. 56-9) (Clip 2). This clip depicts LaJeunesse standing in the back of the raised, black truck
and moving a box, which LaJeunesse claimed was empty. (Id.) at 0:01. LaJeunesse then slides
four stacked deck or patio chairs in the back of the truck. (Id.) at 0:11. At 0:18, LaJeunesse
bends at the waist and proceeds to slide a patio table box to the back of the truck bed. (Id.) at
0:18-0:23. Finally, LaJeunesse squats to approximately a ninety-degree bend at the knees and
jumps from the raised truck bed to the ground, where he sticks the landing with no apparent
difficulty or discomfort. (Id.) at 0:25-0:28.
The truck visible in Clips 1 and 2 appears substantially similar to LaJeunesse’s black
Dodge Ram. Compare this photograph, (doc. 56-26) at 2 (exh. 26d), of LaJeunesse’s truck, from
his Instagram account:
j«mforyou2 Just caus.e you l"l!:!'\fef know't'ftlen
imma g,E"t ridof you.., •
motou portsofnewme.xko This. page1s
with these snapshots from Clips 1 and 2:
(Doc. 56-11) at 2 (Exh.11c);
(Id.) (Exh. 11d).
The Court finds it unbelievable that LaJeunesse could not recognize his own truck. In
reaching this finding, the Court notes the similarity of the rear-tire rims and the Harley-Davidson
stickers on the passenger-side of the truck’s rear window. As ownership of the truck has no
bearing on the merits of this case, the Court finds LaJeunesse’s repeated and false denials to be
obstructionist, unnecessary, and abusive.
2. Inability to Identify Himself
The Court discussed the weight-lifting video supra, and provided photographs for
comparison at footnote 3. After LaJeunesse viewed the weight-lifting video at his deposition, the
following exchange occurred:
All right. Let’s go to the next clip. All right. First of all, let me ask you --
I don’t know who that is. I can’t tell.
Do you recognize that as you?
I cannot tell anything, and that picture is too blurry.
Okay, do you recognize that as you, yes or no?
Do you recognize that as you, yes or no?
For the thirtieth time, no, it’s blurry.
Don’t -- don't -- don't --
-- if you point at me one more time --
Don’t go like this to me. You’re making me hostile. You are getting a
hostile environment here.
Sir, if you point at me one more time, we are going to have a problem. My
question is, is that you in the video?
I don’t know.
Third time, I don’t know.
At any point, did you recognize yourself in that video?
I don’t know who it was. I can’t tell. It’s too blurry.
What is that person doing in the video --
-- regardless if you know who he is?
What is the guy doing in the video? I understand you have denied --
I don’t know what he is doing. I can’t see. It’s very blurry.
You can’t see that he’s squatting?
I can’t see. That’s your opinion. I don’t know.
(Doc. 56-4) at 31-32 (LaJeunesse Dep. 414:6 – 420:16).
Having reviewed the video, the Court notes that the video is not unviewably blurry, and
further notes that both the individual’s identity and the nature of his actions are reasonably clear.
Accordingly, the Court finds LaJeunesse’s repeated statements that he could identify neither
himself nor the activity to be intentionally false and obstructionist.
3. Inability to Remember the Potholes at Issue
In his Complaint, LaJeunesse alleges that he drove over three 18-inch deep potholes in
the Kubota. (Doc. 1) at ¶ 4. When asked about the potholes at his deposition, the following
How big were these [potholes]?
The ones that caused your injury.
Very large sized. I don’t know. As a number, I don’t know, I mean --
Give me your best estimate of inches.
I don’t know.
Give me your best estimate of depth.
I don’t know.
Well, have you ever told your lawyers they were 18 inches deep?
Those potholes are probably a lot bigger than that, the ones that we hit.
Deeper than 18 inches?
They were pretty deep, yeah. Have you been to the Belen yard? Have you
seen what we mess with there? Have you seen the holes in the middle of
Okay. So tell me about what the narrow – on the range of what [the
potholes] could have been.
There was multiple holes. There were some that were 8 feet, there were
some that were 15 feet wide. There was some that were 3 feet -- 3 inches.
There were some that were 18 inches. There were some that were actually
There was 15 foot deep holes?
No, 15 feet wide holes.
That’s why I asked you, is the 18 inches referring to depth or width?
The whole hole was more than -- the ones I hit were deep, 18 inches. 18
inches deep, they were deep.
Okay. How wide were they?
I do not recollect.
What was the diameter --
I still don’t recollect.
Okay. So it could have been 1 inch diameter or it could have been 5 inch?
It could have been. It could have been. It could have been 5 feet. It could
have been 8 feet. I do not know.
Fair enough. So the diameter of the hole could have been 8 feet to 1 inch
I do not know.
So it could have been a 1 inch diameter, 18 inch deep hole; is that my
I’m going to take a break to drink a little bit.
(Doc. 56-4) at 20 (LaJeunesse Dep. 259:4-23); 26 (LaJeunesse Dep. 360:10 – 361:17).
In response to the Motion to Dismiss, LaJeunesse attempts to discount BNSF’s
complaints about the pot hole deposition testimony as arising because BNSF was “not
satisfied” with his testimony. (Doc. 64) at 17.
However, BNSF raised a legitimate complaint because LaJeunesse refused to
squarely answer a direct question. Next, the Court finds it implausible that LaJeunesse
could not remember and describe the potholes that he allegedly struck, unexpectedly, at
five to eight miles per hour, with such force as to cause a protracted spinal injury. The
claimed potholes at issue constitute a seminal fact in this case, and a fact uniquely within
LaJeunesse’s knowledge. LaJeunesse’s failure and refusal to testify directly, despite
repeated, clear questions, constitutes intentional and willful obstruction of the discovery
Simply, BNSF moves for dismissal of this case with prejudice, as well as an award for its
costs and attorney’s fees, as a sanction for LaJeunesse’s personal misconduct during discovery.
LaJeunesse argues that he has neither willfully nor even inadvertently abused the discovery
process, rendering dismissal and an award of costs and attorney’s fees inappropriate. Abundant
evidence, however, belies that argument. Based on the willful discovery violations discussed
above, the Court finds that LaJeunesse knowingly, intentionally, and willfully lied under oath
and abused the discovery process on multiple occasions and to such a degree that dismissal with
prejudice is the only appropriate sanction. The Court cannot allow LaJeunesse to abuse the
A. Ehrenaus Factors
The Court is vested with the authority to impose sanctions, including involuntary
dismissal, for a party’s failure to comply with the discovery requirements set by local and federal
procedural rules. Chambers, 501 U.S. at 43 (holding courts have inherent authority to manage
cases, including dismissal for abusive practices); Garcia, 569 F.3d at 1179 (holding district court
has authority to dismiss case with prejudice for abusive discovery practices; Fed. R. Civ. P.
26(g)(3) (giving court authority to sanction party for false discovery responses); Fed. R. Civ. P.
37 (providing court with sanction authority for various discovery abuses); Fed. R. Civ. P. 41(b)
(allowing for involuntary dismissal if plaintiff fails to comply with federal rules). Sanctions
imposed under this authority aim to penalize bad actors and deter those who might be tempted to
flout the rules or abuse the judicial process. Nat’l Hockey League v. Met. Hockey Club, Inc., 427
U.S. 639, 643 (1976). The Tenth Circuit has affirmed dismissal with prejudice as a discovery
sanction in multiple cases involving less pervasive and/or less severe abuse than that perpetrated
For example, in Archibeque v. Atchison, Topeka and Santa Fe Ry. Co., the Tenth Circuit
affirmed dismissal with prejudice of a plaintiff’s FELA claim where the plaintiff lied about the
extent of previous medical treatment to the allegedly injured body part. 70 F.3d 1172, 1173-74
(10th Cir. 1995). In that case, the plaintiff hid and lied about a ten-year history of pain in her
hips and lower back. Id. at 1174. No other discovery abuses were noted in that case. While
LaJeunesse did not hide a ten-year history of back pain, he engaged in more broad-spectrum and
pervasive discovery abuse.
In Chavez, the Tenth Circuit affirmed dismissal with prejudice after a jury trial where the
plaintiff provided knowingly false and perjurious interrogatory answers and deposition
testimony. 402 F.3d at 1042. There, the plaintiff, contrary to his discovery responses, admitted
at trial that police had pursued him in a car chase prior to his arrest, and that he had evaded
arrest. Id. The Tenth Circuit found no abuse of discretion in the district court’s conclusion that
“[t]he fact that Plaintiff may have gained nothing as a result of his perjury does not mean that he
should not be sanctioned for his conduct, particularly where analysis of the other Ehrenhaus
factors calls for the imposition of severe consequences.” Id. at 1045-46.
In Rodriguez v. Presbyterian Healthcare Servs., the plaintiff brought a claim against her
former employer for damages stemming from denied leave under the Family Medical Leave Act.
2012 WL12896388, at *2 (D.N.M. 2012), aff’d 515 Fed. Appx. 761 (10th Cir. 2013). That
plaintiff lied about obtaining other employment while simultaneously accepting medical leave
and short-term disability payments. Id. During her deposition, the plaintiff provided “false
information concerning her start date [at the other job], her working hours there, and when she
informed [her employer] of her employment [elsewhere].” Id. She “engaged in the wholesale
obstruction of the discovery process” by answering “I don’t know” or “I don’t recall” more than
350 times during her deposition, including to basic questions about her employment status and
her life. Id. at n.1.
While these cases support a dismissal with prejudice here, the Court, nonetheless,
analyzes the Ehrenhaus factors with respect to this case.
1. Degree of Prejudice to Defendant
False and misleading evidence “substantially prejudices an opposing party by casting
doubt on the veracity of all the culpable party’s submissions throughout litigation.” Freddie v.
Martin Transport Ltd., 428 Fed. Appx. 801, 804 (10th Cir. 2011); see also Garcia v. Berkshire
Life Ins. Co. of Am., 569 F.3d 1174, 1180 (10th Cir. 2009) (same). Defendants faced with false
testimony are “forced to either attempt independent corroboration of each submission, at
substantial expense of time or money, or accept the possibility that every document or statement
submitted [by Plaintiff] is incomplete or inaccurate.” Id. (alteration in original) (quotation
omitted). False testimony is intolerable because it is a “flagrant offense” to the truth seeking
function of the lawsuit proceedings. ABF Freight Sys., Inc., 114 S. Ct. 835, 839 (1994).
BNSF expended considerable time and effort investigating and identifying LaJeunesse’s
false statements. LaJeunesse intentionally misled BNSF and this Court regarding his prior injury
history and his activities and capabilities following the alleged injury. Furthermore, he
obfuscated the truth and obstructed the discovery process regarding the central issue in the case:
the size and location of the alleged potholes.
In this position, BNSF was “forced either to attempt independent corroboration of each
submission, at substantial expense of time and money,” or to accept the possibility that every
document or statement submitted by LaJeunesse is incomplete or inaccurate. Id. at 1180. The
Court finds that BNSF was substantially and materially prejudiced by the expense and doubt
resulting from LaJeunesse’s repeated and intentionally false statements and misrepresentations.
2. Amount of Interference with Judicial Process
“[W]hen false evidence or testimony is provided under oath, knowingly and with intent to
deceive, a party commits a fraud on the court.” Garcia, 569 F.3d at 1181. “[T]he greatest
consequence of lying under oath is the affront to the law itself.” ABF Freight Sys., 510 U.S. at
320; Rodriguez, 2012 WL 12894833, at *10 (quoting same). “Lying under oath . . . erodes
public confident in the judiciary and interferes with the judicial process. Turning a blind eye to
false testimony erodes the public’s confidence in the outcome of judicial decisions, calls into
question the legitimacy of courts, and threatens the entire judicial system.” Villa v. Dona Ana
Cty., 2011 WL 13291099, at *14 (D.N.M. 2011) (quotation omitted), aff’d 500 Fed. Appx. 790
(10th Cir. 2012).
As discussed above, LaJeunesse not only obstructed the discovery process and forced
BNSF to double-check every representation, he also lied under oath—at his deposition and in
interrogatory answers. Sanctions are necessary to deter deceptive and misleading conduct.
The Court finds that the judicial process has been undermined by LaJeunesse’s conduct
in this litigation, and that LaJeunesse has interfered with the judicial process by engaging in
deceptive and misleading tactics, lying under oath, and necessitating court intervention.
3. Culpability of Litigant
Dismissal with prejudice is the harshest of sanctions, and mandates some “willfulness,
bad faith, or fault of the petitioner.” Archibeque, 70 F.3d at 1174. There is no question that
LaJeunesse is culpable. He lied under oath on numerous occasions, including material and
immaterial falsehoods. He professed, under oath, that he did not remember or could not recall
otherwise clearly memorable details at least 200 times. The Court does not presume to know
what kind of advice LaJeunesse may have received, but his conduct was his own. It is clear that
LaJeunesse willfully and intentionally obstructed the discovery process and misled or lied to
The Court finds that LaJeunesse’s pervasive pattern of misrepresentation, obstruction,
and outright lies was undertaken knowingly, intentionally, and in bad faith. Thus, LaJeunesse is
personally culpable for the above-discussed violations. He was able to provide more complete
and truthful responses, but failed to do so as required by law and the oath under which he
4. Advanced Warning
“Notice is not a prerequisite for dismissal under Ehrenhaus.” Ecclesiastes 9:10-11-12,
Inc. v. LMC Holding Co., 497 F.3d 1135, 1149 (10th Cir. 2007) (citing Link v. Wabash R.R. Co.,
370 U.S. 626, 632 (1962) (upholding dismissal with prejudice predicated on trial court’s inherent
authority and stating that “absence of notice as to the possibility of dismissal . . . [does not]
necessarily render such a dismissal void.”)); Archibeque, 70 F.3d at 1175 (affirming dismissal
pursuant to Ehrenhaus despite absence of warning about imminent dismissal).
The Court has not previously warned LaJeunesse that dismissal would be a likely
sanction for continued abusive, obstructionist, and untruthful conduct during discovery.
However, such a warning was not necessary here. In circumstances such as these, where a party
has lied under oath, it is unnecessary to warn that party before dismissing the case with
prejudice. Chavez, 402 F.3d at 1045. “Once a witness swears to give truthful answers, there is
no requirement to warn him not to commit perjury or, conversely to direct him to tell the truth. It
would render the sanctity of the oath quite meaningless to require admonition to adhere to it.”
Webb v. Texas, 409 U.S. 95, 97 n. * (1972) (citation and quotation omitted). “[B]ecause the
perjurious testimony was given under oath, an additional warning would have been superfluous.”
Chavez, 402 F.3d at 1045.
Therefore, the Court finds that it was not necessary to provide LaJeunesse with an
additional warning that his case would be dismissed with prejudice if he lied during discovery.
5. Efficacy of Lesser Sanctions
The misconduct in this case is not limited to a single event. Instead, LaJeunesse evinced
a pattern of willful disregard of discovery obligations and the sanctity of his oath. Dismissal
with prejudice is necessary not only to “penalize those whose conduct may be deemed to warrant
such a sanction, but to deter those who might be tempted to such conduct in the absence of such
a deterrent.” Nat’l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 643 (1976).
Additionally, it is not mandatory for the Court to impose a lesser sanction, other than dismissal,
first. Hobratschk v. Perretta, 210 F.3d 389, 2000 WL 313530, at *2 (10th Cir. 2000).
When confronted with all of his misdeeds, LaJeunesse does not admit his oath and
discovery violations, but instead argues that they create fertile ground for cross-examination.
The Court finds this redirection to be another step in LaJeunesse’s inability or refusal to accept
and comply with discovery obligations in this case.
The Court finds that LaJeunesse repeatedly and willfully obscured, hid, and outright
denied the truth in response to interrogatories, requests for admissions, requests for production,
and deposition questions. There is no conceivable set of circumstances, no matter how
generously construed in LaJeunesse’s favor, under which his conduct could be considered
anything other than intentional and abusive. As such, lesser sanctions cannot address the
magnitude of the discovery abuse at issue here.
6. Factors Considered Together
In sum, the Ehrenaus factors weigh against LaJeunesse and in favor of dismissal with
prejudice. These factors, as applied to the facts of this case, outweigh the judiciary’s strong
interest in resolving claims on their merits. Indeed, the Tenth Circuit has affirmed dismissal of
cases on similar and less egregious grounds, as discussed above. Here, LaJeunesse’s pervasive
pattern of misrepresentation, obstruction, and outright lies render the Court’s decision to grant
BNSF’s Motion to Dismiss this case neither close nor marginal. For the reasons discussed
above, BNSF’s Motion to Dismiss with prejudice is granted pursuant to Federal Rules of Civil
Procedure 26(g)(3), 37(b)(2) and (c), and 41(b).
B. Costs and Attorney’s Fees
Where a motion for sanctions is granted under Rule 37(b), the court generally “must
order the disobedient party, the attorney advising that party, or both to pay the reasonable
expenses, including attorney’s fees, caused by the failure . . . .” Fed. R. Civ. P. 37(b)(2)(C).
Additionally, Rule 26(g)(3) provides that the Court “must impose an appropriate sanction on the
signer [of disclosures and discovery responses], the party on whose behalf the signer was acting,
or both[, and t]he sanction may include an order to pay the reasonable expenses, including
attorney’s fees, caused by the violation.” Additionally, “a court may assess attorney’s fees when
a party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons.” Chambers, 501
U.S. at 45-46 (internal citation and quotation omitted).
The Court has found that LaJeunesse willfully, wantonly, and in bad faith failed to
comply with his oath, failed to submit true and accurate interrogatory answers, and allowed
misleading and incomplete responses to requests for production. Accordingly, the Court
concludes that it must award sanctions against LaJeunesse.7
Within ten days from the date of entry of this Memorandum Opinion and Order, BNSF
will file a motion for costs and fees, supported by bills and/or affidavits, detailing which
violations it believes warrant costs and fees, and totaling the claimed requests. BNSF’s motion
will be no more than 20 pages long, exclusive of exhibits. Within ten days from BNSF’s filing
of its motion for costs and fees, LaJeunesse will respond to the motion, including clear
identification of disputed costs and fees. LaJeunesse’s response will be no more than 20 pages
BNSF does not squarely move for sanctions against LaJeunesse’s counsel. However, the
primary conduct at issue here is that of LaJeunesse, personally. Accordingly, the Court does not
consider whether sanctions against LaJeunesse’s counsel would be appropriate.
long, exclusive of exhibits. No reply will be considered. Any motion or response that does not
comply with these deadlines will not be considered.
For the reasons discussed above, the Court finds that LaJeunesse knowingly and
intentionally lied under oath, made material and false misrepresentations, and abused the
discovery process. No sanction less severe than dismissal with prejudice exists to adequately
address the egregious misconduct in this case. Accordingly, the Court grants BNSF’s Motion to
Dismiss and grants BNSF’s request for an award of costs and attorney’s fees. The parties will
brief the costs and attorney’s fees issue as outlined above. The Court will not enter final
judgment in this case until it has resolved the costs and attorney’s fees issue.
IT IS, THEREFORE, ORDERED that
1. Defendant BNSF’s Motion to Dismiss Plaintiff’s Complaint as a Sanction for
Plaintiff’s Willful Abuse of Discovery Process (Doc. 56), filed November 16, 2018, is
2. All claims that Plaintiff Jeremy LaJeunesse’s has or could have brought against
BNSF as a result of the alleged December 20, 2017, incident are dismissed with
3. The parties will brief the costs and attorney’s fees issue as outlined above; and
4. The Court retains jurisdiction over this case and will not enter final judgment until it
has resolved the costs and attorney’s fees issue.
UNITED STATES DISTRICT JUDGE
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