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Daley v. Burlington Northern Santa Fe Railway Co.

Supreme Court of Montana

August 14, 2018

KENNETH DALEY, Plaintiff and Appellant,
BURLINGTON NORTHERN SANTA FE RAILWAY COMPANY, a Delaware for Profit Corporation; GREAT NORTHERN RAILWAY COMPANY, a Foreign for Profit Corporation, and DOES A-Z inclusive, Defendants and Appellees.

          Submitted on Briefs: May 23, 2018

          APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DV-05-882(C) Honorable Heidi Ulbricht, Presiding Judge

          For Appellant: John F. Lacey, Ethan Aubrey Welder, McGarvey, Heberling, Sullivan & Lacey, P.C., Kalispell, Montana, James T. Towe, Kimberly L. Towe, Toe & Fitzpatrick, PLLC, Missoula, Montana

          For Appellees: Chad M. Knight, Anthony M. Nicastro, Nadia H. Patrick, Steven T. Williams, Knight Nicastro, LLC, Boulder, Colorado



         ¶1 Plaintiff Kenneth Daley (Daley) appeals from the jury verdict in favor of Defendant Burlington Northern Santa Fe Railway Company ("BN"), entered in the Eleventh Judicial District Court, Flathead County. We address the following issues raised by Daley:

1. Did the District Court abuse its discretion by excluding evidence at trial?
2. Was Daley denied a fair trial due to BN's trial misconduct?
3. Was Daley denied a fair trial due to BN's discovery misconduct?

         We affirm.


         ¶2 Daley brought this case against BN under the Federal Employers Liability Act (FELA) and the Locomotive Inspection Act (LIA). Daley worked at the Somers rail tie treatment plant operated by BN's predecessor from 1967 until it closed in 1986, and alleged injury from exposure to asbestos during his work there. The case was heavily litigated, with many pretrial motions. In July 2017, after a seven-day trial, a jury determined that BN had not violated the standard of care under FELA and had not violated the LIA. After trial, Daley moved the Court to enter default judgment against BN for asserted litigation misconduct, which was deemed denied. Daley appeals. Additional facts as necessary will be provided herein.


         ¶3 The parties agree that issues raised by Daley are reviewed for abuse of discretion. "We review a district court's evidentiary rulings for an abuse of discretion. The district court has broad discretion in determining the admissibility of evidence." Puccinelli v. Puccinelli, 2012 MT 46, ¶ 12, 364 Mont. 235, 272 P.3d 117. A district court's determination to impose sanctions for litigation misconduct is reviewed for abuse of discretion. Spotted Horse v. BNSF Ry. Co., 2015 MT 148, ¶ 15, 379 Mont. 314, 350 P.3d 52 (citations omitted). We review a district court's decisions regarding discovery for abuse of discretion. In re Estate of Harmon, 2011 MT 84A, ¶ 52, 360 Mont. 150, 253 P.3d 821 (amended; citations omitted). "[W]e generally defer to the district court because it is in the best position to determine both whether the party in question has disregarded the opponent's rights, and which sanctions are most appropriate." Spotted Horse, ¶ 15 (citations omitted); accord Harmon, ¶ 52 (citations omitted). Similarly, "[a] district court has broad discretion when instructing a jury, which the appellate court reviews for abuse of discretion. We review the instructions as a whole to determine whether they fully and fairly instruct the jury on the applicable law. Reversible error occurs only when the instructions prejudice the defendant's substantial rights." State v. Sanchez, 2017 MT 192, ¶ 7, 388 Mont. 262, 399 P.3d 886 (internal citations omitted). An abuse of discretion occurs if the district court acts arbitrarily without the employment of conscientious judgment, or exceeds the bounds of reason resulting in substantial injustice. State v. Sage, 2010 MT 156, ¶ 21, 357 Mont. 99, 235 P.3d 1284 (citations omitted).


         ¶4 1. Did the District Court abuse its discretion by excluding evidence at trial?

         ¶5 Daley challenges many of the District Court's trial evidentiary rulings, which we analyze individually below. Foundationally, 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," including evidence "bearing upon the credibility of a witness," M. R. Evid. 401, and is generally admissible, M. R. Evid. 402. Relevant evidence 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." M. R. Evid. 403. Evidence of other acts is not admissible to prove character "in order to show action in conformity therewith," however, may be admitted for other purposes, including knowledge. M. R. Evid. 404(b). Evidence "of habit or of routine practice" is generally admissible to prove conduct in conformity therewith. M. R. Evid. 406(b).

         ¶6 Applying these principles, we have determined that "[e]vidence of other accidents is not admissible to show negligence." Faulconbridge v. State, 2006 MT 198, ¶ 30, 333 Mont. 186, 142 P.3d 777 (citations omitted). However, such evidence may be admitted "to show the existence of a danger or defect and notice or knowledge thereof" if the other accidents are "substantially similar to" and "not too remote from the accident in question." Faulconbridge, ¶ 30 (citations omitted).

         ¶7 Daley's arguments broadly assert that BN obtained favorable rulings to its requests to exclude evidence, and then made arguments that would have been contradicted by the excluded evidence. "[T]he authority to grant or deny a motion in limine rests in the inherent power of the court to admit or exclude evidence and to take such precautions as are necessary to afford a fair trial for all parties." State v. Ankeny, 2010 MT 224, ¶ 38, 358 Mont. 32, 243 P.3d 391 (citations omitted). We have held that, when one party "opens the door" by broaching a topic that has been excluded, the trial court does not abuse its discretion by permitting the other party to offer evidence to correct a false impression. State v. Guill, 2010 MT 69, ¶ 39, 355 Mont. 490, 228 P.3d 1152 (citations omitted). "District courts have broad discretion to determine the extent to which a party may respond once the other party opens the door." Guill, ¶ 39 (citations omitted).

         BN's 2004 10-K Report.

         ¶8 BN's 2004 Form 10-K, a report required by the Securities and Exchange Commission for distribution to shareholders, stated in part:

The company is party to a number of personal injury claims by employees who worked around asbestos. The heaviest exposure for [BN] employees was due to work conducted in an around the use of steam locomotive engines that were phased out between the years of 1950 and 1967. However, other types of exposure, including exposure from locomotive component parts and building materials, continued after 1967, until substantially eliminated by 1985.

         ¶9 The District Court granted BN's motion in limine to exclude the argument that BN had placed "profits over safety," reasoning that BN's profits were irrelevant to its standard of care under FELA to provide a "reasonably safe" workplace. The Form 10-K was referenced in the Court's order as evidence that could be offered in support of the prohibited "profits over safety" argument.

         ¶10 As Daley's Counsel was preparing to give his opening statement, Defense Counsel noticed an enlargement of the Form 10-K and asked for a sidebar conference, objecting that the Form had been excluded by the Court's order, and that it referenced other personal injury claims not substantially similar to Daley's. Daley responded that the order had merely precluded arguments about "profits over safety," and did not exclude the Form 10-K altogether. The District Court barred Daley's use of the Form in his opening, reasoning it was excluded by the order and that only stipulated exhibits should be used in opening statements, and denied a later attempt by Daley's Counsel to offer it.

         ¶11 Daley argues the Court erred because Form 10-K was not subject to the order, and was admissible under several hearsay exceptions. He argues BN, after getting the Form excluded, later argued that Daley had not been exposed to asbestos while working around locomotives, despite the general acknowledgement on Form 10-K of the existence of such claims, and that, therefore, "Daley was not allowed to present the truth, including [BN]'s admissions against interest." BN answers that the evidence was properly excluded on Rule 403 grounds, as the referenced claims on the Form were too remote, and that any alleged error was harmless because similar evidence about steam locomotives containing asbestos was presented by Daley's experts during trial.

         ¶12 Given that we review evidentiary rulings for abuse of discretion, Puccinelli, ¶ 12, the District Court's interpretation of its own evidentiary ruling would receive the same deferential review, and we are disinclined to second-guess the Court's application of its prior ruling. Form 10-K was referenced within the Court's "profits over safety" order, and the Court could have reasonably interpreted the order as excluding that document when the issue was revisited. Even if Form10-K had not been previously referenced, the District Court could have later extended its ruling to the Form. Daley did not establish that the general reference in the Form to other "personal injury claims by employees who worked around asbestos" involved circumstances that were "substantially similar" to his claims and "not too remote." Faulconbridge, ¶ 30. Given the lack of demonstrated comparable circumstances between the claims mentioned on the Form 10-K and Daley's experience at the Somers plant, we are not convinced the District Court abused its broad discretion, Guill, ¶ 39, by excluding the evidence, even after BN argued Daley had not been exposed to asbestos. As a matter of context, despite Daley's argument that he "was not allowed to present the truth," the District Court admitted, over BN's repeated objections, extensive historical documentation of BN's predecessors' understanding of asbestos-related disease, dating back to the 1930s, including documents demonstrating their awareness of the health risks and recommended control measures. The District Court also admitted extensive evidence concerning asbestos exposure at the Somers plant, and allowed Dr. Spear, Daley's industrial hygiene expert, significant latitude in his testimony, including about other employees exposed to asbestos who had different jobs than Daley.

         BN's Safety History.

         ¶13 The District Court granted BN's motion in limine to preclude admission of evidence, including several letters, which referenced non-asbestos OSHA violations by BN and its refusal to permit access, at other plants, to OSHA inspectors without a warrant. The District Court acknowledged the evidence could be admissible under Rule 406 as habit evidence, but excluded it under Rule 403, reasoning that "the evidence does not appear particularly relevant to show that there were violation of OSHA regulations concerning occupational asbestos exposure at the Somers Tie Plant . . . . the risk of prejudice, confusion of the issues, and amount of time to develop the evidence from other facilities concerning non-asbestos OSHA regulations militates against its admissibility."

         ¶14 Daley argues the District Court erred by excluding the letters, first, as evidence of habit or as a party admission, and then by not admitting them in response to BN's "opening the door" by asserting during opening statement it was a workplace safety leader, which Daley contends left the jury with "an intentionally false image of the railroad's safety record that was irreconcilable with the excluded evidence." BN answers that the incidents referenced in the ...

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