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Wooten v. BNSF Railway Co.

United States District Court, D. Montana, Missoula Division

June 1, 2018

ZACHARY WOOTEN, Plaintiff,
v.
BNSF RAILWAY COMPANY, Defendant.

          ORDER

          Jeremiah C. Lynch United States Magistrate Judge

         During the motion hearing on May 22, 2018 and May 23, 2018, the Court made several rulings from the bench. This Order memorializes the Court's oral rulings on the following motions: (1) Wooten's motion to exclude or limit expert testimony based on timeliness and sufficiency of expert disclosure (doc. 151); (2) BNSF's motions in limine concerning Wooten's expert witnesses (doc. 164); (3) BNSF's motions in limine (doc. 166); (4) Wooten's motions in limine (doc. 168).

         I. Plaintiff's Motion to Exclude or Limit Expert Testimony (Doc. 151)

         Wooten moves pursuant to Fed.R.Civ.P. 26 and 37 to exclude or limit testimony by BNSF experts Brian Weaver and Grant Fredericks based on untimely and/or expert reports and disclosure.

         An expert witness disclosure must contain, among other things, “a complete statement of all opinions the witness will express and the basis and reasons for them; the data or other information considered by the witness in forming them; [and] any exhibits that will be used to summarize or support them.” Fed.R.Civ.P. 26(a)(2)(B). Supplementation is required “if the party learns that in some material respect the disclosure…is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” Fed.R.Civ.P. 26(e).

         BNSF timely served Weaver's report with its liability expert witness disclosure on November 29, 2017, designating Weaver and Fredericks as retained experts and providing their expert reports.

         BNSF served a supplemental report and liability expert witness disclosure for Weaver on March 19, 2018. Wooten argues Weaver's supplemental report is, in substance, a rebuttal expert witness report offered by BNSF to rebut the opinion of Wooten's retained expert, Dr. Toby Hayes. Because rebuttal expert witness reports were due no later than December 29, 2017, Wooten argues Weaver's March 19, 2018 report is untimely. Wooten asks the Court to strike Weaver's March 19, 2018 report and limit Weaver's testimony to the opinions contained in his November 29, 2017, report. In response, BNSF argues that Weaver's supplemental report is not intended solely to contradict or rebut Hayes' report, but rather to clarify his own opinions in light of Hayes' deposition testimony.

         On March 20, 2018, BNSF served a supplemental liability expert witness disclosure for its forensic video analyst, Fredericks, stating that in addition to his expected testimony consistent with his report and the attached videos, he will testify to the foundation and authenticity of the videos produced in discovery. Wooten argues that this supplemental disclosure is deficient because it was not accompanied by a written report, and untimely because it constitutes rebuttal testimony subject to the December 29, 2017, deadline for rebuttal expert witness reports. As a result, Wooten asks the Court to preclude Fredericks from testifying as to the foundation and authenticity of the videos. In response, BNSF argues that the fact-based foundational testimony Fredericks may provide at trial does not constitute expert opinion subject to the Rule 26(a)(2) reporting and disclosure requirements. BNSF contends Wooten's objections to the foundation and authenticity of the video are properly addressed at trial.

         At the motion hearing on May 22, 2018, the Court made clear that all expert witness testimony for both parties, including testimony by BNSF experts Weaver and Fredericks, will be limited to the opinions set forth in their initial reports, and proper rebuttal reports. This limitation applies equally to Wooten's expert Levoy Little, who BNSF argues should not be allowed to testify to opinions expressed at his deposition but not contained in his written report. (Doc. 138). With this understanding, Wooten's motion is effectively moot.

         II. BNSF's Motions in Limine Concerning Plaintiff's Expert Witnesses (Doc. 164)

         A. Gavalla

         BNSF moves in limine to prohibit Wooten from introducing George Gavalla's proposed opinion testimony as set forth in his Safety Analysis Report dated November 28, 2017. BNSF argues that Gavalla's proposed testimony lacks proper foundation and consists of improper legal opinions and conclusions, improper medical opinions, and unfounded opinions with regard to federal laws and regulations and BNSF's internal policies, rules and procedures.

         Consistent with the Court's ruling from the bench at the motion hearing on May 23, 2018, BNSF's motion is granted in part and denied in part as follows:

         (1) BNSF agreed that Gavalla can testify within the parameters of Frost v. BNSF Ry. Co., 218 F.Supp.3d 1122 (D. Mont. 2016) as to safety rules and regulations, the purpose of the internal control plan, the importance of injury reporting, and the negative effects of underreporting. (Doc. 198, at 6). To the extent BNSF moves to prohibit Gavalla from testifying on these topics, including the standard of care in the industry in terms of reporting injuries, BNSF's motion in limine is DENIED, subject to renewal in the context of trial. (Doc. 198, at 8, 18-19).

         (2) BNSF's motion to prohibit Gavalla from testifying that Wooten sustained a work-related injury is GRANTED on the ground that such testimony would invade the province of the jury and improperly bolster Wooten's testimony. (Doc. 198, at 10-11)

         (3) BNSF's motion to prohibit Gavalla from testifying that Wooten was not injured when he reported to work on the night in question is GRANTED. (Doc. 198, at 12-13).

         (4) Wooten agreed at the hearing that he does not intend to offer any opinion from Gavalla relating to medical causation. (Doc. 198, at 13). To the extent BNSF moves to prohibit Gavalla from offering opinions concerning medical causation, its motion is GRANTED. (Doc. 198, at 13).

         (5) BNSF's motion to exclude Gavalla's opinion regarding the sufficiency of the handwriting samples used during BNSF's investigation into Wooten's actions is GRANTED. (Doc. 198, at 16).

         (6) BNSF's motion to prohibit Gavalla from testifying based on Dr. Charles Sullivan's records that it would have been impossible for Wooten not to have been injured in a work-related incident is GRANTED. (Doc. 198, at 16).

         (7) BNSF's motion to exclude Gavalla's opinion that Wooten was “honest and forthcoming” is GRANTED. (Doc. 198, at 17).

         (8) BNSF's motion to prohibit Gavalla from testifying about industry standards, particularly the standard of care embodied in the FRSA statute and OSHA regulations, is DENIED, subject to renewal at trial. (Doc. 198, at 20). But to the extent BNSF moves to preclude Gavalla from testifying that BNSF violated that standard of care here, its motion is GRANTED. (Doc. 198, at 21).

         (9) BNSF's motion is GRANTED to the extent it seeks to prohibit Gavalla from testifying that Wooten was engaged in a protected activity, that BSNF knew he engaged in a protected activity, that there was a causal nexus between Wooten's injury report and his termination. (Doc. 198, at 20- 22).

         (10) BNSF's motion to prohibit Gavalla from testifying that the discipline and dismissal of Wooten was a pretext for retaliation, and the type of action the discrimination provisions were intended to prevent is GRANTED. (Doc. 198, at 22-23).

         (11) While Gavalla may testify generally about industry standards, BNSF's motion is GRANTED to the extent it seeks to prohibit Gavalla's opinion that BNSF was “motivated, at least in part, by a desire to achieve the BNSF ICP (‘Incentive Compensation Plan') goals, which would serve to increase management bonuses.” (Doc. 198, at 23).

         B. Engle

         BNSF moves in limine to prohibit Wooten from introducing John David Engle, Jr.'s proposed opinion testimony as set forth in his report dated November 29, 2017. BNSF argues that Engle lacks the requisite foundation and qualifications to offer the opinions set forth in his report. BNSF moves to prohibit Engle from testifying as to (1) the sufficiency of the 3-Man Inspection Team's inspection of BNSF 6867, and (2) the condition and function of a non-welded part on a locomotive.

         Consistent with the Court's ruling from the bench at the motion hearing on May 23, 2018, BNSF's motion is DENIED. (Doc. 198, at 24-31).

         III. Motions in Limine

         Only evidence that is relevant is admissible at trial. Fed.R.Evid. 402. Federal Rule of Evidence 401 defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the action more probable or less probable than it would be without the evidence.” Even evidence that is relevant may be “excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Fed.R.Evid. 403.

         Courts have “wide discretion” in considering and ruling on motions in limine. Trichtler v. Co. of Lake, 358 F.3d 1150, 1155 (9th Cir. 2004). For evidence to be excluded on a motion in limine, “the evidence must be inadmissible on all potential grounds.” BNSF Ry. v. Quad City Testing Laboratory, Inc., 2010 WL 4337827 at *1 (D. Mont. 2010). “Unless evidence meets this high standard, evidentiary rulings should be deferred until trial so that questions of foundation, relevancy and potential prejudice may be resolved in proper context.” BNSF v. Quad City, 2010 WL 4337827 *1.

         A. BNSF's Motions in Limine (Doc. 166)

         BNSF moves in limine to preclude Wooten from presenting evidence and argument ...


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