Exclusion of Evidence Not an Abuse of Discretion; Judgment for Railroad Defendant Affirmed Supreme Court of Montana, August 14, 2018

MONTANA — The plaintiff filed suit against Burlington Northern Santa Fe Railroad Company (BN) under the Federal Employers Liability Act (FELA) and the Locomotive Inspection Act (LIA). Specifically, Mr. Daley alleged he was exposed to asbestos while working at the Somers rail tie treatment plant from 1967-1986 when it closed. After a seven day trial, a verdict was entered finding BN had not violated FELA or LIA. The laintiff appealed arguing the trial court had abused its discretion on multiple evidentiary issues. The parties stipulated that the standard of review was abuse of discretion. At the outset of its analysis, the court noted that relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable.”

BN’s 2004 10-K Report:

BN had previously submitted a report to the Securities and Exchange Commission that admitted to BN employee exposure that was heaviest around a certain type of locomotive which was phased out between 1950-1967. This report was permitted to be used as a counter to the issue as to whether BN had placed profits over safety, an argument excluded by the court. BN objected to the form being enlarged as an exhibit in the plaintiff’s opening. At sidebar, the court excluded the form stating that only stipulated exhibits could be used in opening. The plaintiff contended on appeal that the trial court’s exclusion was an abuse of discretion. Specifically, the plaintiff “was not allowed to argue the truth” as to his work around the locomotives. BN took the position that even if the exclusion was an error it was a harmless one because the plaintiff’s experts were able to testify as to his work around the locomotives. The court stated that the plaintiff had not established his claims were “substantially similar” and “not too remote” under the Faulconbridge opinion. Therefore, there was no abuse of the court’s “broad discretion.”

BN’s Safety History:

The trial court had also excluded evidence related to BN’s OSHA violations at other plants although it noted it may be admissible as habit evidence. However, it was excluded as prejudicial because the violations were not relevant to occupational exposure at the Somers Tie Plant. The plaintiff took the position that error occurred when the evidence was not permitted after BN argued that it was a leader in work place safety. BN countered that the statements had nothing to do with the plaintiff or his work at the Somers Tie Plant. The court found no error based on the remoteness of the OSHA evidence and the plaintiff’s specific asbestos claim.

Depositions of Dr. Wang and Robert Fuller.

Both witnesses were deceased co-workers who had given prior deposition testimony in unrelated cases. Portions of their depositions were permitted by the trial court with certain portions excluded as they did not suffer from asbestos related diseases. At trial, BN referred to those depositions. On appeal, the plaintiff argued that BN “opened the door” and wrongly argued that Wang and Fuller had not been exposed to asbestos. The court agreed that BN may have violated the trial court order but noted that any effect was “minimal” on the plaintiff.

Exclusion of Mr. Funk:

The plaintiff also took exception with the trial court’s decision to excluded another co-worker, Mr. Funk. Here, the plaintiff had not included Mr. Funk on the final pretrial order. Mr. Funk was only added after the plaintiff’s medical expert had an emergency and trial was postponed. The plaintiff then added Mr. Funk on the second pretrial order. BN objected to the testimony of the late added witness. The plaintiff argued that BN misrepresented its “surprise and concealment” of this witness and that the trial court’s exclusion was “hyper technical.” The court was not persuaded by the plaintiff’s relied upon cases as they were distinguishable. Moreover, the trial judge was in the better position to evaluate sanctions when an opponent’s rights have been affected.

The plaintiff continued his argument that the he was denied a fair trial by BN’s conduct at trial.

The plaintiff’s return to the CARD Medical Clinic:

Here, the plaintiff conceded that he returned to medical treatment at the suggestion of his counsel. The plaintiff successfully had this evidence excluded for trial. However, BN was permitted to bring this evidence in after counsel for the plaintiff asked questions on direct that The plaintiff sought medical treatment for declining health. The court did not find this conduct to be unfair since BN obtained leave of the court prior to asking the leading questions.

Personalization of Mr. Liukonen:

The plaintiff also took exception with the questions asked by BN of its expert Larry Liukonen. Specifically, the plaintiff argued that BN’s arguments were improper when it asked whether the people at the plant were his friends and ” you don’t go into this profession of industrial hygiene and safety because you don’t care about people.” The plaintiff contended that this line of questioning was improper and incited passion and prejudice. The court agreed that the line of questioning was improper but did not believe it was enough to persuade the jury.

Medical Experts:

The plaintiff also argued it was improper for BN to attack the credibility of his medical expert by stating that the plaintiff’s counsel had worked “hundreds” of cases with them and that they even played golf with Dr. Whitehouse. However, the court noted that Evidence Rule 401 permits a party to delve into witness credibility when the court allows it.

Finally, the court reviewed whether the plaintiff was denied a fair trial to BN’s alleged discovery misconduct. Here, the plaintiff filed a motion to compel discovery arguing BN’s objections to discovery requests were improper. The court denied the motion as untimely as it was filed nearly 8 months after the close of discovery. The court was not persuaded that the denial was improper.

Moreover, the court found that the trial court’s decision was not arbitrary. Accordingly, the decision was affirmed.

Read the full case decision here.

Leave a Reply

Next ArticleChanneling Injunction Protects Insurer Against Industrial Hygiene Claims