United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
in civil litigation is, at its core, a fact-finding,
truth-seeking process. As such, it demands good faith,
unambiguous, direct and forthright participation from
litigants. It is because these objectives have been
frustrated here that Defendant BNSF Railway Company (BNSF)
has filed the instant Motion to Dismiss Plaintiff's
Complaint as a Sanction for Plaintiff's Willful Abuse of
Discovery Process (Motion to Dismiss), filed November 16,
2018. (Doc. 56). Plaintiff Jeremy LaJeunesse (LaJeunesse)
filed his response in opposition on December 20, 2018, and
BNSF filed its reply on January 24, 2019. (Docs. 64 and 73).
Having considered the briefing and exhibits, the record, and
the applicable law, the Court grants BNSF's Motion to
Dismiss, dismisses this case with prejudice, and retains
jurisdiction over the parties to determine the issue of
attorney's fees and costs.
Background and Procedural History
filed this Federal Employers Liability Act (FELA) claim
against his former employer, BNSF, on March 6, 2018. (Doc.
1). FELA creates a federal cause of action for employees of
“[e]very common carrier by railroad” when those
employees are injured at work and engaged in activities
“further[ing] . . . interstate or foreign commerce . .
. or . . . directly or closely and substantially[ ]
affect[ing] such commerce.” 45 U.S.C. § 51.
worked as a Motorized Track Inspector at the BNSF railyard in
Belen, New Mexico, on December 20, 2017, when he allegedly
drove his BNSF-assigned Kubota at approximately 5-8 miles per
hour and “unexpectedly . . . struck a consecutive
series of 3 large washed-out holes that were about 18”
deep.” (Doc. 1) at 2. LaJeunesse contends the injury
occurred around 10:00 a.m. and caused “immediate pain
in his back, but continued working the rest of his
shift.” (Id.) The parties agree that
LaJeunesse “was in the course and scope of his
employment” at the time of the alleged incident and
that his “duties at the time . . . [were] in
furtherance of interstate commerce.” (Doc. 15) at 3.
sole count brought against BNSF claims “negligence;
violation of [FELA], ” based on BNSF's purported
failure to: 1) “maintain the Kubota in a safe operating
condition;” 2) “provide LaJeunesse with a work
vehicle that was of sufficient size to safely carry the tools
and equipment required for his assigned duties;” and 3)
“maintain the right-of-way alongside the lead track in
a safe condition.” (Doc. 1) at 3.
now moves for dismissal of LaJeunesse's complaint as a
sanction for LaJeunesse's alleged discovery abuse, under
Federal Rules of Civil Procedure 26, 37, and 41, and the
Court's inherent authority. (Doc. 53). Specifically, BNSF
alleges LaJeunesse lied, under oath, in written discovery
responses and at his deposition; purposefully engaged in
obstructionist behavior at his deposition; and misrepresented
facts or otherwise obstructed BNSF's access to
argues that his “lies” are nothing more than
miscommunications or misunderstandings. To the extent the
Court disagrees with this description, LaJeunesse contends
that BNSF obtained access to all information it sought and
may make use of the “lies” as concededly fertile
grounds for cross-examination at trial.
Standard of Review
has long been understood that ‘[c]ertain implied powers
must necessarily result to our Courts of justice from the
nature of their institution,' powers ‘which cannot
be dispensed with in a Court, because they are necessary to
the exercise of all others.'” Chambers v.
NASCO, Inc., 501 U.S. 32, 43 (1991) (quoting United
States v. Hudson, 7 Cranch 32, 34 (1812)); Chavez v.
City of Albuquerque, 402 F.3d 1039, 1043 (10th Cir.
2005) (quoting Chambers, 501 U.S. at 43). Such
inherent equitable powers include the power to “impose
the sanction of dismissal with prejudice because of abusive
litigation practices during discovery.” Garcia v.
Berkshire Life Ins. Co., 569 F.3d 1174, 1179 (10th Cir.
a case for discovery abuse rests within the sound discretion
of the trial court. Chavez, 402 F.3d at 1044.
However, “[b]ecause dismissal is such a harsh sanction,
it is appropriate only in cases of ‘willfulness, bad
faith, or [some] fault of petitioner.'”
Id. (alteration in original) (quoting Archibeque
v. Atchison, Topeka, and Santa Fe Railway Co., 70 F.3d
1172, 1174 (10th Cir. 1995)). Factors courts should consider
when determining whether dismissal is an appropriate sanction
(1) the degree of actual prejudice to the defendants; (2) the
amount of interference with the judicial process; (3) the
culpability of the litigant; (4) whether the court warned the
party in advance that dismissal of the action would be a
likely sanction for noncompliance; and (5) the efficacy of
Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir.
1992) (internal citations and quotation omitted). “This
list is not exhaustive, nor are the factors necessarily
equiponderant.” Chavez, 402 F.3d at 1044.
Dismissal is warranted when “the aggravating factors
outweigh the judicial system's strong predisposition to
resolve cases on their merits.” Ehrenhaus, 965
F.2d at 920.
Abuse of the Discovery Process
issue is the conduct of LaJeunesse and his counsel throughout
the discovery phase of this lawsuit. BNSF points to written
discovery responses and LaJeunesse's deposition as the
primary sources of misinformation. To assess the multifarious
issues raised in the Motion to Dismiss, the Court addresses,
in the order presented, the individual instances of
misconduct alleged by BNSF.
initial matter, the Court notes that LaJeunesse verified his
interrogatory answers on June 21, 2018, “under penalty
of perjury” and stated that his answers were
“true and correct to the best of [his] knowledge,
information and belief.” (Doc. 56-3). LaJeunesse
testified under oath at his July 10, 2018, deposition. (Doc.
56-4) at 39 (court reporter's certification that she
administered oath to LaJeunesse). At his deposition,
LaJeunesse testified that all of his answers were truthful to
the best of his ability, that he understood he was testifying
under penalty of perjury, and that he did not want to change
any of his answers. (Doc. 56-4) at 37-38 (LaJeunesse Dep.
Previous Back Injuries
No. 9 asked LaJeunesse:
Were your back, buttocks, or lower extremities injured (in
any manner) or had you treated with any medical providers for
back, buttocks, or lower extremities complaints prior to
December 20, 2017? If so, please identify:
(a) The type of injuries that you had;
(b) How the injury was caused;
(c) What medical provider(s) treated the injuries; and
(d) Identify any person or entity that you believe was
responsible for the injury.
(Doc. 56-5) at 3-4. LaJeunesse answered:
a) In 2012 I injured my back in California working for BNSF
Railways, herniated three discs[.]
b) Injury was caused by a stuck laser on the Geo Truck. I
went to pull the laser off the back of the BNSF work truck
when I heard a loud pop and was instantly paralyzed. I flew
home and went to ER in NM.
c) NM orthopedics, Paradigm, and Dr. Barkalow[.]
d) BNSF railway[.]
(Id.) at 4.
deposition, La Jeunesse testified consistently with his
Interrogatory answer that he previously experienced back pain
when he injured his back in 2012, and that the 2012 injury
was his first experience with back pain. (Doc. 56-4) at 26-27
(LaJeunesse Dep. 361:25-362:5).
to a records release, BNSF obtained a June 28, 2010, medical
record from Certified Nurse Practitioner (CNP) Susan Banks,
with whom LaJeunesse had an ongoing treatment relationship,
indicating an appointment for “sciatic nerve?”
pain with an intensity of 8/9 out of 10, that persisted for
over a month. (Doc. 56-7) at 1. The note reads:
“Shooting pain at coccyx [sic] - intermit - is rt
moving heavy objects x 1 month.” (Id.) In the
history section, the note reads: “One month ago, he was
working on a thinning project for soil conservation and he
was sharpening a saw and bent over and suddenly felt a sharp
pain in R posterior iliac crest. Now the pain is bilateral in
the S-I joint area and it hurts to lie down or bend
over.” (Id.) LaJeunesse experienced
“point tenderness posterior S-I joint area[;] full
[range of motion] hips 0 pain[;] pain on flexion at
waist.” (Id.) CNP Banks diagnosed LaJeunesse
with back strain, sent him for lumbar-spine x-rays, referred
him to “Dr. Michael Crawford in Santa Fe for
chiropractic [treatment], ” and advised him to
follow-up as necessary. (Id.) at 2.
never clarified or amended his deposition testimony or his
Interrogatory answer. Instead, he submitted a Declaration in
response to the Motion to Dismiss. (Doc. 64-2) (Declaration
of J. LaJeunesse). In relevant part, that Declaration states:
With respect to the pain I experience in June 2010, I did not
remember until Defendants provided my medical records that I
experienced pain in my tail bone when I was bending at work
over eight years ago. I was referred to a chiropractor and my
doctor told me to just take it easy. The issue seemed to
resolve itself without any further treatment.
(Id.) at ¶ 2.
response to the Motion to Dismiss, LaJeunesse contends he
“simply forgot” about the 2010 incident because
it “resulted from bending over rather than a memorable
injury, ” and because “eight years elapsed before
the interrogatory and deposition.” (Doc. 64) at 6. He
also argues that this is essentially a non-issue because he
disclosed CNP Banks as a witness in initial disclosures.
(Id.) at 4-6.
Court finds it not credible that LaJeunesse did not remember
month-long pain that prevented him from comfortably standing
up or laying down, and which resulted in spinal x-rays.
Notably, LaJeunesse never submitted amended interrogatory
responses or corrected his deposition testimony. This failure
to recall a previous back injury does not constitute a mere
oversight, but instead evinces a pattern of LaJeunesse
misrepresenting his history and abilities.
Extent of Injuries and Post-Incident Activities
No. 5 asked LaJeunesse to:
Describe the physical or leisure
activities/hobbies/sports/labor you were able to and
regularly performed prior to December 20, 2017, and any
changes in your ability to engage in the leisure
activities/hobbies/sports or ability to perform physical
labor subsequent to December 20, 2017.
(Doc. 56-5) at 2. LaJeunesse answered:
Prior to Dec. 20, 2017, I played sports: weight training,
running, basketball, softball, and volleyball. I have prided
myself as being able to do any job for BNSF. Trackman to
Inspector, I was able to work with the best. Now I cannot
pick up my 14-month-old without pain.
deposition, LaJeunesse testified that after the December 20,
2017, incident, his doctor put him on a light duty
restriction, meaning that he could lift no more than twenty
(20) pounds. (Doc. 56-4) at 13 (LaJeunesse Dep. 127:5-15).
LaJeunesse stated, however, that he has lifted more than
twenty (20) pounds at the gym since December 20, 2017, but
has done so “[v]ery little, very little.”
(Id.) (LaJeunesse Dep. 127:16-18). The following
exchange occurred when BNSF asked what things LaJeunesse had
done at the gym since December 20, 2017:
Q: Tell me the things you have done at the gym that are over
A: I can do a little bit of press, the bench press, no back,
nothing back that I can bend over. I can do a little bit of
leg stuff that's over 20 but --
Q: When you say over 20, are you talking 25, 30?
A: Yeah, probably about 25, 30, something like that,
that's what I will rep it and just of -- but, I mean,
this is all built by my PT. You know, this is his regimen.
This is what he wants me to do.
Q: And whether it's -- well, let me ask you this: At the
gym, are you able to lift anything greater than 50 pounds?
A: I'm sure I could on my legs, I'm sure.
Q: Okay. Have you attempted to?
A: Rarely. I won't try to chance it.
Q: So tell me, it sounds like, if I understand your answer,
rarely you have attempted to lift more than 50 pounds?
A: Well, the doctor wanted me to start -- Mr. Esparza wanted
me to start increasing my load to see how good I was going to
be to get a full release, and I am yet to -- I try it, but I
am yet to sustain a good amount of weight.
Q: So what's the maximum that you are able to increase
your load to at Dr. Esparza's request?
A: That he has got, he has got me to do 20 pounds. That's
all he's got me now
A: -- Dr. Esparza. But the physical therapist, under his
orders, has me working out on his regiment. And none of them
is over 20 pounds. It's like 30, you know, anything at
the most. Most of it is Total Gym, so it's your own body
weight when I go work out there.
Q: Yeah, that's what I am trying to understand, though.
The gym -- maybe I now understand it -- have you lifted
anything at the gym more than 20 pounds?
A: Yeah, I have.
Q: Tell me the most you have lifted at the gym.
A: I want to say 50 pounds to at least -- I try to mimic
myself to lift something that's going to be the same that
I lift, like what we use as tools for BNSF. So our minimum
tool that I use, which would be a jack, and that's 40
some pounds. So I got to figure I got to lift at least that
much to be able to get back to work. And I can do it for a
little bit, but not -- not too long, unfortunately.
Q: So tell me right now how frequently you lift 50 pounds at
A: I don't go to the gym at all. Right now it's
Q: All right. In the last -- well, since December -- how
about that -- since December of 2017, how frequently have you
lifted a maximum of 50 pounds at the gym?
A: I don't know how many times I have lifted it. I would
say a handful, maybe five times.
Q: Okay. Have you ever attempted to lift more than 50 pounds?
A: I attempted, because when I was told to attempt, and it
Q: What was the maximum you attempted?
A: I think I can do the 20 pounds like Dr. Esparza says. I
think I can do that.
Q: You said you attempted more than 50.
Q: I am trying to understand what the maximum over 50 you
A: Oh, over 50, I would say about 50, 50 -- maybe -- I
don't know. I would be lying. I don't know what's
the max I have done.
Q: Less than 100, I assume?
A: Oh, yeah, definitely less than 100, yeah.
Q: When you say you tried, you tried with something just
around 50 pounds?
A: Well, I was told to -- not told. I was asked to start
working again, start doing physical activity, to start to
see, because, you know, I am in the laborious field of our --
of the railroad. And so I started to do some, and I just
can't hand, man. It's just unfortunate, but I just --
can do things. I just can't do everything.
Q: And then that's what I want to know. You said you did
some bench press.
I understand what that is. You said you did some legs. What
were the legs things you did?
A: Just the squats. He has me doing -- with the body --
it's the body gym. It's just your own weight. You can
do a bunch of squats and - Q: So not weighted squats, but
just physical weights?
A: I have been adding a little bit, because it's still
weighted, because you are weighted on that machine, because
you are doing your body weight is what you're doing. So
you are lifting weight. It's just so I will compensate,
so my body weight on the machine would be less, probably like
30 pounds compared to adding plus much more, you know. And so
that's where I am at on the -- on that, but that's
the last time I --
Q: -- she asked me, is it a Smith machine?
A: What is it, 40 -- no, no, no. I have been using the -- all
six stationary machines, all stationary. I can't --
A: He wants me on the body, it's a glider, it's a
glide, but it's a stationary leg machine.
Q: Gotcha. So you are not free weight lifting?
A: Very little when I do, and when I do, it's like 20
pounds. We are not doing any -- anything.
(Doc. 56-4) at 13-14 (LaJeunesse Dep. 128:1 - 133:24).
Q: What's the maximum amount -- since we are talking
about squats, we will go there -- what's the maximum
amount you have tried to squat since your accident?
A: I tried to do my body weight when he told me to try and
get back to -- get back to gym, back to working mode, and I
couldn't do it.
Q: When you say your body weight, meaning?
A: I weigh 190 pounds, so I try to at least do half of that,
which without -- you know, because the Smith machine weighs a
little bit. So I tried probably like a hundred, about 100
pounds, and I couldn't do it. I had two 45s on each side,
and I couldn't do it, so I stopped.
Q: I'm surprised. So you tell me, since that accident,
you have squatted over 100 pounds?
A: The doctor had -- under -- under -- under the physical
therapist is a -- with him, I squatted to get back to work to
see if I was able to return back to work, because I have to
do assessment, and I couldn't do it, so --
(Doc. 56-4) at 28 (LaJeunesse Dep. 367:25 - 368:20).
LaJeunesse then testified he was unable to pick up his
14-month-old daughter without pain. (Id.)
(LaJeunesse Dep. 369:19-22).
the deposition, BNSF confronted LaJeunesse with surveillance
video of a man who appears to be LaJeunesse performing
multiple repetition sets of squats on a Smith machine, time
stamped April 22, 2018, at 7:56:48AM. (Doc. 56-9) (Clip 3).
When asked if he recognized the person in the video or
recognized himself in the video, LaJeunesse responded:
“I don't know who it is. I can't tell. It's
too blurry, ” and “[i]t's too blurry,
no.” (Doc. 56-4) at 31 (LaJeunesse Dep. 416:6-7;
416:20). When asked what the person in the video was doing,
this exchange followed:
Q: What is the guy doing in the video? I understand you have
denied -- A: I don't know what he is doing. I can't
see. It's very blurry.
Q: You can't see that he's squatting?
A: I can't see. That's your opinion. I don't
(Doc. 56-4) at 32 (LaJeunesse Dep. 420:9-16).
pressed LaJeunesse on whether he had squatted 275 pounds
since December 2017. The following exchange transpired:
Q: Can you squat 275 [pounds] since December of 2017?
A: I don't know.
Q: Have you tried to squat 275 since December of 2017?
A: I have no -- I have no -- I don't know, no. I
Q: You don't know whether you have attempted to squat 275
A: I never -- I never added weight no, I don't know.
Q: My question, to be clear, because this is really
important, you don't know yes or no whether you have
attempted to squat, I will say over 200 pounds since December
A: That, I don't know if I have or not. I never measured.
(Doc. 56-4) at 32 (LaJeunesse Dep. 420:23 - 421:14).
Court reviewed the weight-lifting video, along with
photographs of LaJeunesse and portions of LaJeunesse's
videotaped deposition, and notes that the individual in the
video resembles LaJeunesse. Additionally, the video depicts
the man placing what appears to be one round, black, standard
twenty-five (25) pound weight on each side of the bar of a
Smith machine. (Doc. 56-9) (Clip 3 at 0:10-0:23). At 0:29 on
the video, the man ducks his head under the bar, places the
bar across his shoulders, and performs eight repetitions of
weighted back squats to an approximately 90-degree bend of
the knees. (Id.) (Clip 3 at 0:33-0:57). At 1:02, the
man bends at the waist and knees to pick up what appears to
be a large, black, standard 45-pound plate. (Id.)
The man places one 45-pound weight on each side of the bar,
in addition to the 25-pound weight on each side of the bar.
(Id.) (Clip 3 at 1:02-1:16). At 1:39, the man again
ducks under the bar and performs five visible weighted back
squat repetitions to an approximate 90-degree bend of the
knees. (Id.) (Clip 3 at 1:39-1:54). After finishing
the second set, the man bends at his waist to grab another
45-pound plate, which he lifts one-handed to waist level.
(Id.) (Clip 3 at 1:59 - 2:01). The man adds a second
45-pound plate to each side of the bar. (Id.) (Clip
3 at 2:02-2:14). The weight, not including the weight of the
bar, now totals 230 pounds (two 45-pound weights plus one
25-pound weight on each side = 115 pounds per side; x 2 sides
= 230 pounds). Again, the man performs six repetitions of
weighted back squats to an approximate 90-degree bend of the
knees. (Id.) (Clip 3 at 2:45 - 3:03).
completion of this third, heaviest set, the man returns the
45-pound weight plates to the rack, and returns to the Smith
Machine with 50 pounds of weight on the bar. (Id.)
(Clip 3 at 3:12-3:41). The man then returns to the bar and
performs two sets of weighted standing lunges to a 90-degree
bend of the knees, with each set comprising multiple lunges
per leg. (Id.) (Clip 3 at 3:42 - 5:27).
response to Requests for Admissions propounded to him after
the deposition, LaJeunesse ultimately admits that he is the
man in the weight-lifting video. (Doc. 56-14) at 2.
asserts, in response to the Motion to Dismiss, that he did
not recognize himself in the video at the time of his
deposition because the “video was played on a small
tablet and was of poor quality.” (Doc. 64) at 7. He
further argues that BNSF “assumes the quantity of
weight added and the weight of the bar in its Motion
without evidence.” (Id.)
LaJeunesse notes that a Smith Machine differs from free
lifting or dead lifting, including the notion of dead lifting
a child from a bent over position. Notably, BNSF submitted a
Los Lunas Police Department lapel video, dated January 12,
2018, as Exhibit 47 to its Reply. In the video, LaJeunesse is
seen holding what appears to be a 14-month old child,
including bending over and standing up with the child in his
arms. The Court notes no apparent distress or discomfort.
Declaration, LaJeunesse states:
When I was shown the April 22, 2018 video at my deposition,
it was a short video clip that was shown to me on a small
tablet screen. I did not want to admit to something that I
was unsure about until I had more time to review the video. I
worried that BNSF's lawyers were trying to trick me. I
could not see from the video what the weights were or how
much the bar weighed. It is my knowledge from over twenty
years of working out that a Smith Machine bar is fifteen
pounds compared to a forty-five-pound barbell.
(Doc. 64-2) at ¶ 3.
Court finds it disingenuous, at best, that LaJeunesse claims
he could not recognize himself in the video. Furthermore, the
argument that BNSF “assumes” the amount of weight
loaded on the Smith Machine is simply specious. The weight
lifting video obviously shows LaJeunesse loading two 45-pound
plates on each of the bar, after loading one 25-pound plate
on each side of the bar. It is not believable that LaJeunesse
did not remember squatting over 200 pounds at the gym within
two months of his deposition.
testified, under oath, at his deposition that his physical
therapist instructed him to exceed the twenty-pound lifting
restriction and had given him a written regimen that included
lifting 45-pound plates. (See Doc. 56-4) at 13
(LaJeunesse Dep. 128:7-13, quoted supra). He further
stated that the physical therapist “has me working out
on his regimen, ” which included lifting “at the
most” 30 pounds and using a Total Gym, “so
it's your own body weight[.]” (Id.)
(LaJeunesse Dep. 129:14-19, quoted supra).
in the deposition, LaJeunesse admitted to picking up a
45-pound plate after December 20, 2017, but stated that this
did not violate the 20-pound lifting restriction. (Doc. 56-4)
at 33 (LaJeunesse Dep. 422:23 - 423:9). The following
Q: Have you ever handled a 45 pound plate at a gym since
December of '17?
Q: Have you picked one up and put it on a rack of any kind?
Have you picked up a 45 pound plate since December of
Q: Did that violate your lifting restrictions?
A: No, because I was -- I'm still under my physical
therapist, his guidelines for physical therapy.
Q: Has a physical therapist told you to lift 45 pound plates