617 F.3d 843 (6th Cir. 2010), 09-5504, Jones v. Illinois Central Railroad Co.

Docket Nº:09-5504, 09-5528.
Citation:617 F.3d 843
Opinion Judge:KAREN NELSON MOORE, Circuit Judge.
Party Name:Teresa JONES, Plaintiff-Appellant/Cross-Appellee, v. ILLINOIS CENTRAL RAILROAD COMPANY, Defendant-Appellee/Cross-Appellant.
Attorney:John W. Chandler, Jr., The Law Office of Morgan Adams, Chattanooga, Tennessee, for Appellant. Charles J. Swartwout, Boyle Brasher LLC, Belleville, Illinois, for Appellee. John W. Chandler, Jr., The Law Office of Morgan Adams, Chattanooga, Tennessee, Pamela R. O'Dwyer, Paty, Rymer & Ulin, Chattano...
Judge Panel:Before: MOORE and GILMAN, Circuit Judges; RUSSELL, Chief District Judge.[*]
Case Date:August 24, 2010
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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617 F.3d 843 (6th Cir. 2010)

Teresa JONES, Plaintiff-Appellant/Cross-Appellee,

v.

ILLINOIS CENTRAL RAILROAD COMPANY, Defendant-Appellee/Cross-Appellant.

Nos. 09-5504, 09-5528.

United States Court of Appeals, Sixth Circuit.

August 24, 2010

Argued: April 30, 2010.

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ARGUED:

John W. Chandler, Jr., The Law Office of Morgan Adams, Chattanooga, Tennessee, for Appellant.

Charles J. Swartwout, Boyle Brasher LLC, Belleville, Illinois, for Appellee.

ON BRIEF:

John W. Chandler, Jr., The Law Office of Morgan Adams, Chattanooga, Tennessee, Pamela R. O'Dwyer, Paty, Rymer & Ulin, Chattanooga, Tennessee, for Appellant.

Charles J. Swartwout, Boyle Brasher LLC, Belleville, Illinois, S. Camille Reifers, Boyle Brasher LLC, Memphis, Tennessee, for Appellee.

Before: MOORE and GILMAN, Circuit Judges; RUSSELL, Chief District Judge.[*]

OPINION

KAREN NELSON MOORE, Circuit Judge.

This case concerns a negligence action arising out of a collision between Teresa Jones's husband's vehicle and a train owned by Illinois Central Railroad Company (" Illinois Central" ). After a jury returned a verdict of equal fault between Mr. Jones and the railroad, Mrs. Jones filed post-trial motions to vacate the judgment, for a new trial, for post-trial discovery or an evidentiary hearing, and for sanctions. In support of those motions, she alleged that defense counsel had unreasonably resisted discovery requests and misled the court as to the truthfulness of a witness's statements. Mrs. Jones further alleged that Illinois Central withheld information helpful to her case and bribed the aforementioned witness. The district court agreed with the first set of charges but rejected the latter. It therefore granted the motion for sanctions but denied the other motions. Mrs. Jones now appeals the denial of her post-trial motions under Federal Rule of Civil Procedure 60. The defendant cross-appeals the sanctions order. As discussed below, we AFFIRM.

I. BACKGROUND

On November 1, 2003, Keith Jones was driving a fertilizer spreader eastward on Locust Grove Road in Dyer County, Tennessee, across a set of train tracks when he was struck by a northbound train. Mr. Jones was thrown from his vehicle. Though he survived, Mr. Jones sustained head injuries so severe that he lost all memory of the accident.

His wife, Teresa Jones, filed a negligence action in federal district court 1 individually and on behalf of her disabled husband, alleging that the train's owner, Illinois Central, had failed to identify the Locust Grove Road crossing as dangerous, to adequately warn motorists of the danger, and to manage vegetation in the area such that an approaching motorist's view of oncoming trains would not be obstructed. Mrs. Jones also raised a number of

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related statutory claims concerning the upkeep of the crossing area. Illinois Central denied negligence and argued that Mr. Jones had been contributorily negligent in driving too fast and failing to stop for the train. After a two-week trial, a jury returned a verdict finding each party 50% at fault, resulting in no recovery.

Mrs. Jones then filed a series of post-trial motions concerning alleged wrongdoing by Illinois Central and defense counsel with respect to two issues: (1) disclosure of the recorded observations of two railroad crew members who witnessed the collision, and (2) false testimony by one Thomas Grace, who drove past Mr. Jones just before the collision.

Train Crew Interview Notes and Statements.

Jerry McKissick, a train conductor, and Harris Wood, an engineer, were waiting in a southbound train parked on the side of the main tracks, just north of the crossing, when the accident occurred. Thomas Martin, Illinois Central's claims agent, interviewed both McKissick and Wood about the collision and took notes on their observations. Later, Wood stated in a deposition, " I gave a statement to one of the risk managers," Wood Dep. at 16 (Dist. Ct. Dkt. Document (" Doc." ) 64-3), raising the possibility in Mrs. Jones's mind that Illinois Central possessed at least one written or recorded statement, not merely notes, from the train crew.

Mrs. Jones filed a request for any and all statements, and notes related thereto, by McKissick and Wood. Illinois Central responded that the McKissick and Wood interview notes were " prepared in anticipation of litigation and/or [were] protected by applicable privilege, including attorney/client and work product." Doc. 189-1. Illinois Central thereafter switched law firms, retaining Ms. S. Camille Reifers as lead counsel. On February 28, 2008, Mrs. Jones moved to compel the production of the interview notes. On April 21, 2008, Ms. Reifers filed a response reasserting the attorney-client and work-product privileges.

On June 11, 2008, a magistrate judge held a hearing on the motion to compel and reviewed the documents in camera. They consisted of a post-it note with the phrase " Tom Martin's notes-talking to conductor of train in siding," and a single page of handwritten notes listing the names and phone numbers of McKissick, Wood, and a third person; a website address; the name of a highway; and the words " Huddson Scrapes." Doc. 183-1. The magistrate judge found no evidence that privilege attached to the single page of notes or the post-it note and ordered Illinois Central to produce them.

Ms. Reifers produced the documents on June 13, 2008. Plaintiff's counsel asked about the written or recorded statements that McKissick and Wood had given the claims agent, and Mrs. Reifers responded that she possessed no additional documents. On Sunday, June 15, the day before trial began, Ms. Reifers sent plaintiff's counsel an email stating the following: " Ten minutes ago I found Tom Martin's notes regarding the parked train crew. They were in an unmarked folder and appeared to be attorney notes." Doc. 246-4. This was a one-page document of handwritten notes recording Wood's and McKissick's observations and noting that they did not actually see the collision. That same day, plaintiff's counsel filed a motion for sanctions based in part on defense counsel's failure to turn over the actual statements that Mrs. Jones believed McKissick and Wood had provided to the railroad.

Thomas Grace.

Grace was driving a farm truck westbound on Locust Grove Road when the accident occurred. After he crossed over the railroad tracks, he had

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a near-collision with Mr. Jones's fertilizer spreader. After Mr. Jones passed him, Grace heard the train's whistle blow, looked into his rearview mirror, and saw the crash. At his deposition, Grace testified that his near-accident with Mr. Jones occurred " maybe ten feet" west of the railroad crossing-" right at the tracks." Grace Dep. at 26 (Doc. 246-1). This testimony supported Mrs. Jones's argument against contributory negligence: a reduced awareness of his surroundings would be expected of Mr. Jones if he had almost been in an accident immediately prior to reaching the tracks.

On May 19 and May 21, 2008, plaintiff's counsel spoke to Grace and confirmed that he would testify at trial consistent with his deposition. Grace also indicated that he was in dire financial straits. On May 22, Ms. Reifers met with Grace at his home for about forty-five minutes and showed him an aerial photograph of the crossing. At that point, Grace indicated that the near-accident occurred close to a bridge on Locust Grove Road, some 300 feet west of the crossing. On June 2, plaintiff's counsel again confirmed that Grace would testify consistent with his deposition.

On the first day of trial, June 16, defense counsel asked plaintiff's counsel when the plaintiff planned to call Grace to the stand. Plaintiff's counsel answered June 18. That night, plaintiff's counsel called Grace to tell him he would not have to be in court until June 18. Grace's father answered the phone and said that Illinois Central had put Grace up in a hotel in Memphis that very night. The next morning, June 17, Grace appeared at the courthouse. Outside the courtroom, plaintiff's counsel again confirmed that Grace would testify consistent with his deposition. Defense counsel also may have met with Grace that morning.

Plaintiff's counsel Pamela O'Dwyer decided to call Grace to the stand on June 17, since he had come to the courthouse. On direct examination, Grace testified that he passed Mr. Jones somewhere between the railroad tracks and the bridge, at a point roughly 300 feet west of the tracks. See Trial Tr. at 448. Ms. O'Dwyer was surprised by this testimony because she had been expecting Grace to put the near-accident at ten feet from the crossing. Ms. O'Dwyer tried to refer to Grace's deposition testimony, in which he had estimated a distance of ten feet, but Ms. Reifers objected to the plaintiff's impeachment of her own witness. Id. at 450. At sidebar, plaintiff's counsel John Chandler accused the defense of paying for Grace's hotel room the previous night and influencing his testimony. The following discussion ensued:

THE COURT: Are you stating as an officer of the court that the railroad did not put this person out of the reach of the plaintiffs by putting him up in a hotel?

MS. REIFERS: Absolutely not, Your Honor. In fact, this witness told us this morning that he stayed with a friend last night. We had debated yesterday if it was proper under the rules if we could get him a hotel because he had to drive a specific distance and thought about asking the attorneys to split the cost [so] there would be nothing improper.

MR. CHANDLER: That is what we were told by his father.

MS. REIFERS: We don't know where he stayed. We don't have any control over this person.

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