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Lajeunesse v. BNSF Railway Co.

United States District Court, D. New Mexico

August 30, 2019



         Discovery 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.

         I. Background and Procedural History

         LaJeunesse 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.

         LaJeunesse 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.

         The 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.

         BNSF 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 discoverable information.

         LaJeunesse 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.

         II. Standard of Review

         “It 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. 2009).

         Dismissing 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 include:

(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 lesser sanctions.

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.

         III. Abuse of the Discovery Process

         At 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.[1]

         As an 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. 453:16-455:18).

         A. Previous Back Injuries

         Interrogatory 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.

         At his 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).

         Pursuant 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.

         LaJeunesse 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.

         In 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.

         The 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.

         B. Extent of Injuries and Post-Incident Activities

         Interrogatory 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.


         At his 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 20 pounds.
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 the gym.
A: I don't go to the gym at all. Right now it's zero.[2]
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 wasn't happening.
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 attempted is.
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). LaJeunesse continued:

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).

         During 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 know.

(Doc. 56-4) at 32 (LaJeunesse Dep. 420:9-16).

         BNSF 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 don't know.
Q: You don't know whether you have attempted to squat 275 or not?
A: I never -- I never added weight no, I don't know. I'm sorry.
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 of 2017?
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).

         The 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.[3] 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).[4] 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).

         Upon 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).

         In 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.

         LaJeunesse 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.)

         Finally, 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. (Doc. 73-7).

         In his 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.

         The 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.

         C. Physical Therapist

         LaJeunesse 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).

         Later 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 exchange unfolded:

Q: Have you ever handled a 45 pound plate at a gym since December of '17?
A: Yes.
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 '17?
A: Yes.
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 ...

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