Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Griswold v. BNSF Railway Co.

United States District Court, D. New Mexico

May 5, 2017

CHAD GRISWOLD, Plaintiff,
v.
BNSF RAILWAY COMPANY, Defendant.

          MEMORANDUM OPINION AND ORDER

         This matter is before the Court on the following pretrial motions: (1) Defendant's Omnibus Motion in Limine [Doc. 55], (2) BNSF Railway Company's Motion in Limine on Plaintiff's Ballast Related Claims and Claims of Negligent Track Inspection [Doc. 66], and (3) Defendant's Motion to Strike Previously Undisclosed Fact Witnesses [Doc. 107].

         I. Defendant's Omnibus Motion in Limine

         This motion addresses a potpourri of potential evidentiary issues. However, Plaintiff has responded to only one of these: Defendant's contention that the Court should preclude Plaintiff from presenting evidence of subsequent remedial measures (outside the limited purposes set forth in Fed.R.Evid. 407), including evidence that the surface condition of the Broncho Siding, where Plaintiff's injury occurred, has been changed, modified, or improved since the date of his injury. As Plaintiff has declined to respond to the other issues raised in the motion, in accordance with the Local Rules the Court presumes that those portions of the motion are unopposed.

         Rule 407 states that it “does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as ... impeachment.” Fed.R.Evid. 407. The impeachment exception to Rule 407 is necessary to prevent litigants from taking “unfair advantage” of the Rule by adopting a position at trial that is inconsistent with their previous decision to take remedial measures after the accident. Minter v. Prime Equipment Co., 451 F.3d 1196, 1212-13 (10th Cir. 1996) (citing Wood v. Morbark Indus., Inc., 70 F.3d 1201, 1208 (11th Cir. 1995) (evidence of subsequent modifications can be introduced to rebut testimony that “left the jury with the impression that [the defendant] had made no modifications to the [product]”)). See also In re Air Crash Disaster, 86 F.3d 498, 531 (6th Cir.1996) (evidence of subsequent design changes to correct deficiencies is admissible to rebut a witness's claim that the product was “state of the art”); Polythane Sys., Inc. v. Marina Ventures Int'l., Ltd., 993 F.2d 1201, 1210-11 (5th Cir. 1993) (evidence of subsequent modifications is admissible to impeach testimony that the product was “one of the strongest in the world”).

         However, the impeachment exception, however, threatens to swallow the rule and therefore must be applied narrowly. Minter, 451 F.3d at 1212. Applied loosely, “any evidence of subsequent remedial measures might be thought to contradict and so in a sense impeach [a party's] testimony.” Id. at 1213 (quoting Complaint of Consolidated Coal Co., 123 F.3d 126, 136 (3d Cir. 1997)) (emphasis and internal quotation marks omitted). In Probus v. K-Mart, Inc., 794 F.2d 1207, 1210 (7th Cir. 1986), the court explained:

It is undoubtedly true that evidence of subsequent remedial measures can be said to contradict, and hence, in a sense, ‘impeach' a defendant's contention that he was exercising due care or that materials used in the manufacture of a product were appropriate for their intended application. Yet allowing that and no more to satisfy the impeachment exception would elevate it to the rule.

         As a result, the impeachment exception has been limited to evidence of subsequent remedial measures that is “necessary to prevent the jury from being misled.” Wood, 70 F.3d at 1208. See also Minter, 451 F.3d at 1213; Complaint of Consolidated Coal Co., 123 F.3d at 136 (“[T]he evidence offered for impeachment must contradict the witness's testimony directly.”); Harrison v. Sears, Roebuck & Co., 981 F.2d 25, 31 (1st Cir. 1992) (noting that the impeachment exception requires “a great[ ] nexus between the statement sought to be impeached and the remedial measure”).

         The Court cannot evaluate whether or not the impeachment exception to Rule 407 applies until presented with the evidence at trial. Therefore, the Court takes the matter under advisement.

         II. BNSF's Motion in Limine On Plaintiff's Ballast-Related Claims and Claims of Negligent Track Inspection

         The Federal Employers' Liability Act (“FELA”), 45 U.S.C. § 51 et seq., renders railroads liable for employees' injuries or deaths “resulting in whole or in part from [carrier] negligence.” § 51. The FELA should be construed liberally to effectuate congressional intent. Atchison, Topeka & Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 562 (1987). While a plaintiff must prove “the common law elements of negligence [to prevail in a FELA case], including foreseeability, duty, breach, and causation, ” Fulk v. Illinois Cent. R.R. Co., 22 F.3d 120, 124 (7th Cir.1994), a “relaxed standard of causation applies under FELA.” CSX Transp., Inc. v. McBride, 564 U.S. 685, 691-92, 131 S.Ct. 2630, 2636 (2011).

         “Liability under FELA is limited in these key respects: Railroads are liable only to their employees, and only for injuries sustained in the course of employment. FELA's language on causation, however, ‘is as broad as could be framed.'” CSX Transp., Inc. v. McBride, 564 U.S. 685, 691 (2011) (quoting Urie v. Thompson, 337 U.S. 163, 181 (1949)). Juries in such cases are properly instructed that a defendant railroad “caused or contributed to” a railroad worker's injury “if [the railroad's] negligence played a part-no matter how small-in bringing about the injury.” Id. at 705. The FELA “vests the jury with broad discretion to engage in common sense inferences regarding issues of causation and fault.” Harbin v. Burlington N.R.R. Co., 921 F.2d 129, 132 (7th Cir. 1990).

         Defendant asks the Court to preclude Plaintiff from making reference to any industry standard that has not been promulgated by the Federal Railroad Safety Act. In particular, Defendant seeks to exclude standards from the American Society of Testing and Materials (ASTM) that have been discussed by Plaintiff's liability expert, Russel Kendzior. Defendant's reasoning is that these standards have been “preempted” by federal law.[1] Defendant then cites FRSA promulgated regulations aimed at reducing train derailments to argue that Congress has occupied the field of railroad safety. See Doc. 66 at 3-4. However, Defendant does not cite any regulations that bear on the issue at hand, which is not train derailments, but rather the safety of railroad employees climbing in and out of trains.

         In his response, Griswold spends many pages explaining why his Federal Employer's Liability Act (“FELA”) claim for negligence is not preempted by the Federal Railroad Safety Act (“FRSA”). While that is true, that is not the argument that Defendant is making in his motion. The question is rather what evidence can be offered to demonstrate that BNSF did not meet the standard of care. Griswold cites decisions from various federal Circuit Courts of Appeals and District Courts that have held that while a violation of regulations under the Occupational Safety and Health Act of 1970 (“OSHA”) cannot be the basis for a claim of negligence per se, it can be evidence the jury may consider when determining whether the railroad violated the standard of care.

         The Court agrees with Griswold that evidence of the ASTM standards is admissible for the limited purpose of suggesting safety standards in certain industries in the United States. Thus, they are admissible for the limited purpose of illustrating BNSF's standard of care. Kendzior's testimony regarding these standards can be admitted into evidence with a limiting instruction making it clear that the ASTM standards are not binding on BNSF in this lawsuit, but may be considered ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.