Thoroughman, Anthony v. Canadian National Railroad et al

Filing 156

ORDER granting 117 Motion to Bifurcate Joint Employment Issue; denying 114 Motion to Compel Settlement; and granting 119 Motion to Substitute Party. XL Specialty Insurance Company and Atlas Railroad Construction, LLC terminated. Signed by District Judge James D. Peterson on 4/1/2020. (jls)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

ANTHONY THOROUGHMAN,
Plaintiff,
and
ATLAS RAILROAD CONSTRUCTION, LLC,
Intervenor Plaintiff,

OPINION and ORDER
15-cv-74-jdp

v.
WISCONSIN CENTRAL, LTD.,
Defendant.
Plaintiff Anthony Thoroughman sued defendant Wisconsin Central, Ltd. after he was
injured while repairing railroad track owned by Wisconsin Central. Three motions are now
before the court.
First, Wisconsin Central asks to bifurcate the trial to allow a separate determination on
whether Wisconsin Central was acting as Thoroughman’s employer when he was injured.
Dkt. 117. Bifurcation will prevent potential jury confusion and unfair prejudice to Wisconsin
Central without unfairly prejudicing Thoroughman or affecting his right to a jury trial, so the
court will grant this motion.
Second, intervenor plaintiff Atlas Railroad Construction, Thoroughman’s direct
employer, asks the court to compel Thoroughman to accept Wisconsin Central’s offer of
judgment. Dkt. 114. But the state law on which Atlas’s motion relies does not allow the court
to compel Thoroughman to settle his federal claim, so the court will deny this motion.

Third, Atlas and XL Specialty Insurance Company, Atlas’s worker’s compensation
insurance carrier, ask to substitute XL Specialty in Atlas’s place as intervenor plaintiff.
Dkt. 119. Thoroughman doesn’t object, so the court will grant the motion as unopposed.

ANALYSIS
A. Bifurcation
Thoroughman brings two claims against Wisconsin Central. His first claim arises under
the Federal Employers’ Liability Act (FELA), which allows an injured railroad worker to sue his
employer if his employer’s negligence caused his injury. Dkt. 87. Although Thoroughman was
directly employed by Atlas, he contends in his FELA claim that he was acting as an employee
of Wisconsin Central when he was injured. He brings his second claim, a state-law negligence
claim, in the alternative. Id. Because FELA preempts state-law negligence claims against an
injured railroad worker’s employer, the negligence claim is contingent on a finding that
Thoroughman was not Wisconsin Central’s employee. See Fed. R. Civ. P. 8(d)(3) (“A party may
state as many separate claims or defenses as it has, regardless of consistency.”).
Wisconsin Central asks the court to bifurcate the trial as follows. In the first phase, the
jury will determine whether Wisconsin Central was acting as Thoroughman’s employer at the
time of his injury. If the jury finds that this was true, it will determine in the second phase
whether Wisconsin Central violated FELA. If the jury finds in the first phase that Wisconsin
Central was not acting as Thoroughman’s employer at the time he was injured, then the jury
will determine in the second phase whether Wisconsin Central was negligent. Dkt. 117.
The court may grant a motion to bifurcate a trial under Federal Rule of Civil
Procedure 42(b) if doing so “1) serves the interests of judicial economy or is done to prevent

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prejudice to a party; 2) does not unfairly prejudice the non-moving party; and 3) does not
violate the Seventh Amendment.” Krocka v. City of Chicago, 203 F.3d 507, 516 (7th Cir. 2000).
The court has considerable discretion in deciding whether to bifurcate a trial. Id.
Bifurcation is appropriate here because the parties agree that the jury must first
determine whether Wisconsin Central was acting as Thoroughman’s employer before it can
decide whether Wisconsin Central violated FELA or can be held liable under state law.
Thoroughman cannot prevail on both claims, so bifurcation promotes both efficiency and
fairness. If the trial is not bifurcated, the parties will have to argue both Thoroughman’s FELA
and negligence claims, and the jury will have to be instructed on both claims, even though the
jury cannot find for Thoroughman on both claims. I’m not persuaded that any unfair prejudice
would result either way, but the case will be significantly simplified for the jury if it is bifurcated
this way.
Thoroughman objects that bifurcation would interfere with his right to control his
litigation. But the authorities he cites to support this proposition do not address bifurcation.
Rather, they concern questions such as determining the amount of a plaintiff’s class-action
claim for removal purposes, Morgan v. Gay, 471 F.3d 469, 474 (3d Cir. 2006), and determining
whether to proceed without a required party that cannot be joined, Schutten v. Shell Oil Co.,
421 F.2d 869, 873 (5th Cir. 1970). And although Thoroughman has the right to control his
litigation, that right does not supersede the court’s power to manage the trial under Rule 42(b).
Thoroughman has not shown that bifurcation would unfairly prejudice him or violate
his rights under the Seventh Amendment. The court will grant Wisconsin Central’s motion to
bifurcate.

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B. Offer of judgment
Atlas intervened in this case on the grounds that it paid workers’ compensation for
Thoroughman’s injuries and that it therefore has an interest in any recovery that Thoroughman
gets from Wisconsin Central. See Dkt. 101.
Atlas seeks to compel Thoroughman to accept Wisconsin Central’s offer of judgment
for $1,250,000. See Dkt. 113 and Dkt. 114. Atlas relies on Wis. Stat. § 102.29(1), which gives
an injured employee’s employer and worker’s compensation insurer “the same right” as the
employee to bring a claim against a third party and gives the employer or insurer “an equal
voice” in the claim’s prosecution. Wis. Stat. § 102.29(1)(a), (b). If there are “any disputes”
about how to litigate the claim, they “shall be passed upon by the court.” Id. § 102.29(1)(b).
This includes disputes over whether to accept a defendant’s settlement offer. Adams v. Northland
Equip. Co., 2014 WI 79, ¶¶ 37, 82, 850 N.W.2d 272, 356 Wis. 2d 529. Atlas says that
Wisconsin law applies, so the court should order Thoroughman to accept the offer to protect
Atlas’s rights.
But Atlas ignores the fact that Thoroughman is raising a federal claim under FELA.
State worker’s compensation law does not control how Thoroughman litigates his FELA claim.
See St. Louis Sw. Ry. Co. v. Dickerson, 470 U.S. 409, 411 (1985) (FELA claims are governed by
federal, not state, law). Atlas says Thoroughman’s FELA claim will probably fail at trial because
he “will have a difficult time” proving that he was Wisconsin Central’s employee. Dkt. 115, at
12. Under Wisconsin law alone, I might consider whether Thoroughman’s decision to press on
to trial was so risky as to be unfair to Atlas. But Atlas has cited no authority that would allow
me to deprive Thoroughman of a right to a trial on his FELA claim just because Atlas thinks
he might lose.

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And even under Wisconsin law, I’d have to look out for Thoroughman’s rights, too.
Atlas’s only interest is recovering its workers’ compensation payments, regardless of the
potential value of Thoroughman’s claim. Atlas has not persuaded me that the offer of judgment
is one that I should force Thoroughman to take, even if I had the authority to do so. Atlas’s
motion is denied.
C. Substitution of parties
Atlas and XL Specialty Insurance Company have moved to substitute XL Specialty in
Atlas’s place as an intervenor plaintiff under Federal Rule of Civil Procedure 21. Dkt. 119.
Atlas and XL Specialty say that XL Specialty, not Atlas, paid Thoroughman’s worker’s
compensation benefits and that XL Specialty, not Atlas, is therefore the real party in interest
under Rule 17(a)(1). Thoroughman doesn’t object to the substitution. The court will grant the
motion.
Thoroughman’s response raises the question of how XL Specialty will participate in the
trial. XL Specialty is subrogated to Thoroughman’s possible recovery from Wisconsin Central,
so I don’t see how XL’s rights diverge from Thoroughman’s for purposes of trial. I’ll allow XL
Specialty to explain what role, if any, it expects to play at the final pretrial conference.

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ORDER
IT IS ORDERED that:
1. Defendant Wisconsin Central, Ltd.’s motion to bifurcate, Dkt. 117, is GRANTED.
2. Intervenor plaintiff Atlas Railroad Construction, LLC’s motion to compel
settlement, Dkt. 114, is DENIED.
3. Atlas and intervenor plaintiff XL Specialty Insurance Company’s motion for
substitution of parties, Dkt. 119, is GRANTED. The clerk of court is directed to
amend the caption of this case accordingly.
Entered April 1, 2020.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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