Wooden judge gavel, close-up view.

Court Denies Railway Company’s Renewed Motion for Spoliation; Agrees to Bifurcate Trial

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Court: United States District Court for the District of Montana, Great Falls Division

In connection to defendant Burlington Northern Santa Fe Railway Company’s ongoing litigation in Libby, Montana (covered extensively by the Asbestos Case Tracker, including most recently HERE), the estate of decedent Mary Diana Moe brought an action against BNSF for wrongful death allegedly resulting from decedent’s exposure to asbestos resulting from BNSF’s activities in Libby.

BNSF previously moved for spoliation sanctions stemming from plaintiff’s failure to preserve decedent’s remains after her death. The court denied BNSF’s motion after concluding that BNSF failed to meet its burden to show good cause for an autopsy to obtain additional tissue samples. However, in reaching its decision the court noted that “had good cause been shown to warrant the tissue samples, sanctions could have been appropriate in this case.”

Here, BNSF first brought a renewed motion for spoliation sanctions, arguing that good cause existed to obtain tissue samples from decedent’s lungs for a tissue digestion analysis, which was “the only medically reasonable method” for understanding (1) if her mesothelioma was caused by asbestos exposure and (2) if it was caused by asbestos exposure, which type(s) of asbestos fibers caused her diagnosis. In support of its renewed motion, BNSF offered the declaration of Dr. Mark Wick, an expert pathologist, who stated the cremation of decedent precluded the evaluation needed to establish the cause of her mesothelioma. Plaintiff, on the other hand, argued that BNSF’s renewed motion was improper under the Federal Rules of Civil Procedure and local rules, and the motion still failed to meet the good cause standard.

Ultimately, the court determined that BNSF’s renewed motion for sanctions was procedurally improper, as BNSF was required to seek leave to file a motion for reconsideration, and that its motion failed to present a valid basis for reconsideration because it did not identify any new facts or applicable law that arose after the entry of the court’s original order. BNSF also failed to explain why the information now provided in its renewed motion could not have been provided in support of its original motion. For these reasons, the court denied BNSF’s renewed motion for spoliation sanctions. However, the court noted that its denial of BNSF’s request to give an adverse jury instruction does not prohibit argument or evidence regarding the basis for decedent’s diagnosis and whether the diagnosis was “definitive.”

Next, BNSF moved to bifurcate the trial into two separate proceedings: the first stage relating to BNSF’s liability for negligence and any amount of compensatory damages, and the second stage relating to liability for punitive damages. BNSF argued that bifurcation was necessary to avoid unnecessary prejudice against BNSF.  In response, plaintiff conceded that limited bifurcation would be appropriate; however, Plaintiff moved for an alternative approach: the jury could decide liability for both negligence and punitive damages, as well as compensatory damages, in the first stage, and in the second stage the jury would determine what amount of punitive damages, if any, was appropriate. Plaintiff argued that this approach was consistent with customary practices, was appropriate given the nature of the claims against BNSF, and sufficiently avoids undue prejudice against BNSF.

The court ultimately agreed with plaintiff’s proposed model of bifurcation, finding that the evidence pertaining to BNSF’s liability for negligence would overlap substantially with the evidence pertaining to BNSF’s liability for punitive damages. The court further noted that any evidence that does arise at trial, if any, that proved irrelevant to plaintiff’s negligence claim could be addressed by the court pursuant to any objections to its introduction. Accordingly, the court granted BNSF’s motion in part and denied it in part, determining that the trial would be bifurcated in the manner suggested by plaintiff. 

Read the full decision here.