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Burckhard v. BNSF Railway Co.

United States Court of Appeals, Eighth Circuit

September 14, 2016

Corrie Burckhard, as Personal Representative for the Estate of Todd Burckhard, Decedent; Maria Mack, as Personal Representative for the Estate of Blaine H. Mack, Decedent Plaintiffs - Appellees
v.
BNSF Railway Company, a Delaware corporation; CUSA ES, LLC, doing business as Coach America Crew Transport Defendants-Appellants

          Submitted: February 11, 2016

         Appeal from United States District Court for the District of North Dakota - Bismarck

          Before SMITH and COLLOTON, Circuit Judges, and GRITZNER, [1] District Judge.

          PER CURIAM.

         Plaintiffs, personal representatives of the decedents, sued BNSF Railway Company (BNSF) for the deaths of two BNSF employees, Todd Burckhard and Blaine Mack. After rejecting BNSF's motions for judgment as a matter of law (JMOL), the district court[2] submitted the case to a jury. The jury found in favor of plaintiffs. After the verdict, BNSF moved the district court to alter or amend the judgment based on an agreement that plaintiffs had entered with BNSF prior to trial. The district court denied BNSF's motion. On appeal, BNSF argues that the district court (1) improperly denied its JMOL motions, (2) made several erroneous evidentiary rulings, and (3) improperly denied its motion to alter or amend the judgment. We affirm.

         I. Background

         Under federal law, railway employees can work a maximum of 12 consecutive hours. When their hours of service expire, railway employees need to be relieved mid-route. BNSF contracted with Coach America to provide transportation for some of its crews. After Burckhard and Mack were relieved by an incoming crew, Coach America dispatched a driver, Timothy Rennick, to transport them from Oswego, Montana, to Glasgow, Montana. Rennick collected Burckhard and Mack and began the approximately 40-mile trip. While en route, a pickup truck driven by a drunk driver, Ron Keiser, struck their vehicle. The collision killed Burckhard and Mack.

         Plaintiffs presented three theories of BNSF's liability at trial: (1) BNSF, through its agent Rennick, negligently operated the vehicle used to transport Burckhard and Mack; (2) BNSF and its agent, Coach America, negligently failed to properly train Rennick; and (3) BNSF, through its agent Rennick, negligently failed to follow appropriate defensive driving rules. The evidence at trial concerning the crash included Rennick's statement taken the day after the crash by a BNSF claims representative, [3] the testimony of the Montana State Trooper that investigated the accident, and data from Coach America's vehicle's video camera and "black box." Additional evidence described the training that Coach America provided its drivers and a BNSF curfew policy.

         Rennick told the claims representative that he saw Keiser's truck veer into his lane about "a minute, maybe two minutes at the most" before the collision. Rennick responded by pulling into Keiser's lane. Keiser steered his truck back into his lane of travel and collided with Rennick's vehicle before Rennick could react. The investigating Montana State Trooper, Sergeant Jeffrey Kent, testified that he found no signs that Keiser's truck left the paved road or 15-foot shoulder. The video camera captured the eight seconds before the collision in quarter-second snapshots. The camera's footage shows that Rennick attempted to avoid Keiser's vehicle by entering Keiser's lane. According to the "black box, " Rennick did not apply braking until approximately 2.75 seconds before the collision. The "black box" also showed that the speed of Rennick's vehicle was 51 miles per hour 2.5 seconds before the collision.

         Over BNSF's objection, the district court allowed plaintiffs to submit evidence of a BNSF curfew policy that applied to "deadheading."[4] The curfew policy forbids transportation of railway employees on public roads between 10:00 p.m. and 4:00 a.m. when "deadheading." According to BNSF, one of the reasons for the curfew was "a commonsense, good-judgment decision of daylight versus night." BNSF explained that transportation during the night presents additional risks, such as drunk and sleepy drivers.

         BNSF sought to introduce evidence that Burckhard and Mack were given a choice between transportation by vehicle or train once they were relieved from service. The district court excluded the evidence to avoid confusing the jury and because the evidence could potentially inject irrelevant defenses into the trial.

         BNSF also sought to have Sergeant Kent testify that he believed that Rennick did not act negligently and chose the safest course of action given the circumstances. Plaintiffs objected to the testimony as cumulative. The district court agreed and also held that it was inappropriate to allow Sergeant Kent to testify as a lay witness on the ultimate factual issue. The district court allowed Sergeant Kent to testify about factual information obtained as part of his investigation but prohibited Sergeant Kent from testifying that Rennick acted reasonably.

         At the close of plaintiffs' case, BNSF moved for JMOL pursuant to Federal Rule of Civil Procedure 50(a). BNSF argued that plaintiffs' first theory of liability failed because they did not offer sufficient evidence that the risk was reasonably foreseeable. Likewise, BNSF argued that plaintiffs' third theory of liability failed because they did not offer expert testimony establishing that BNSF had a duty to implement a curfew policy covering employees, such as Burckhard and Mack. BNSF did not renew these motions under Rule 50(b) after the jury verdict.

         Following the verdict, BNSF moved the district court to alter or amend the judgment. Plaintiffs received $600, 000 before trial in "Off Track Vehicle Accident Benefits" as part of BNSF's Collective Bargaining Agreement. BNSF claimed that the agreement required plaintiffs to apply the $600, 000 as an offset to any recovery. The district court denied the motion because it considered the agreement to be collateral to the merits of the case. BNSF now appeals.

         II. Discussion

         Plaintiffs suit arises under the Federal Employers' Liability Act (FELA), 45 U.S.C. § 51 et seq. FELA renders railroads liable for injuries or deaths of its employees "resulting in whole or in part from the negligence of [the railroad]." 45 U.S.C. § 51.

         A. JMOL Motions

         In preverdict motions, BNSF moved the district court to enter JMOL on two bases: (1) "Plaintiffs failed to offer any evidence that [BNSF] should have or could have foreseen the conduct of Keiser that cause[d] the harm at issue"; and (2) "Plaintiffs failed to offer any expert testimony to establish the standard of care applicable to BNSF for crew calls and train movements." BNSF argues that the district court erred in denying these JMOL motions. Plaintiffs contend that BNSF waived these arguments by failing to renew them in a Rule ...


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