Cowden v. BNSF Ry. Co.
| Citation | 690 F.3d 884 |
| Decision Date | 04 September 2012 |
| Docket Number | No. 11–2003.,11–2003. |
| Parties | Kevin D. COWDEN, Plaintiff–Appellant v. BNSF RAILWAY COMPANY, Defendant–Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
OPINION TEXT STARTS HERE
Michael A. Wolff, argued, Jerome Schlichter, Roger C. Denton, Nelson G. Wolff, on the brief, St. Louis, MO, for Appellant.
Thomas Everett Jones, argued, Belleville, IL, for Appellee.
Before MELLOY, SMITH, and SHEPHERD, Circuit Judges.
Kevin D. Cowden sustained injuries while riding in a locomotive operated by his employer, BNSF Railway Company. Cowden brought suit seeking compensation under the Federal Employer's Liability Act (FELA), 45 U.S.C. § 51 et seq. The district court concluded that relevant regulations promulgated under the Federal Railroad Safety Act (FRSA), 49 U.S.C. § 20101, et seq., provided the sole duty of care owed to Cowden in relation to his claim. The district court ruled that Cowden had not demonstrated a failure to comply with the relevant regulations and that Cowden had therefore failed to establish a breach in BNSF's duty of care under the FELA, and therefore granted summary judgment for BNSF. Because the district court granted summary judgment on an issue not raised or discussed by either party, we reverse and remand for further proceedings. We also reverse in part the district court's order excluding expert testimony, because BNSF has not met its burden of showing that FRSA regulations substantially subsume Cowden's claim. We affirm that order in part because the district court correctly excluded other portions of the expert's testimony as prohibited by Rule 407 of the Federal Rules of Evidence.
Kevin Cowden was employed by BNSF as a locomotive conductor. On January 14, 2008, Cowden was riding a BNSF locomotive near Springfield, Missouri. Cowden asserts that, somewhere between mile markers 151.4 and 151.8, the train bottomed out, throwing him several feet in the air. When Cowden landed, he suffered injuries to his back and neck. Cowden's injuries have rendered him unable to return to work for BNSF. At the time of his injury, Cowden was forty-one years old and had worked for the railway company for thirteen years.
On the day Cowden sustained his injuries, the portion of the track at issue was under a “slow order,” which was a self-imposed order by the railway company permitting trains to travel no faster than forty miles per hour over that stretch of track. Without the slow order, BNSF's trains would normally have traveled sixty miles per hour over the track. It is undisputed that the train was traveling slower than forty miles per hour at the time of the incident. The parties disagree as to the actual reason for the slow order in place at the time of the accident; however, BNSF business records indicate that it was in place due to “tie conditions.” The same section of track had previously been subject to additional slow orders due to various other conditions, such as “rough track” and “washouts.”
BNSF records indicate that in April 2007, rough track surface caused BNSF to limit trains to forty miles per hour over this area. On May 1, 2007, BNSF lowered that limit to twenty-five miles per hour because of disturbed ballast, which affected the lateral stability of the rails. On May 23, 2007, records indicate that the twenty-five-mile-per-hour order was due to inadequate crosstie conditions, and the speed restriction was lifted on May 29. On September 9, 2007, a washout caused by heavy rainfall removed ballast between crossties, and BNSF again placed a twenty-five-mile-per-hour limit on the area. On November 2, 2007, BNSF raised the speed limit on this area of track, but maintained a forty-mile-per-hour limit. The records indicate the reason for this was because of inadequate condition of the crossties. This forty-mile-per-hour speed limitation remained in place until Cowden's accident. Because of Cowden's accident, BNSF again lowered the maximum speed to twenty-five miles per hour on January 14, 2008, and BNSF records listed tie conditions as the reason. At no point between May 2007 and the day of Cowden's accident were the railroad ties replaced.
Cowden brought suit in federal court alleging that BNSF is liable for his injuries under the FELA for negligently failing to provide him with reasonably safe working conditions 1 Cowden's claim relies heavily on the BNSF records that he alleges indicate persistent, unremedied problems with the track in question. However, BNSF submitted testimony from its corporate representative, Joseph Thornburg, that questioned the accuracy of these business records. Thornburg testified that he believed BNSF's records were incorrect and that tie conditions had never really been a reason for the slow orders in place. Noting inconsistencies in the reasons for successive slow orders, Thornburg suggested that the record indicating tie-condition problems on May 23, 2007, may have been incorrect, and that the real reason may have been track-surface conditions. Thornburg also testified that he had an opportunity to look at geometry car data readings from early November 2007. Thornburg testified that the geometry data indicated that there was no evidence of any adverse track conditions. This data was never offered into evidence. When asked why a slow order of forty miles per hour remained in place if there were, in fact, no adverse track conditions, Thornburg stated that he didn't
know what the ties actually looked like and, you know, I can look at the data on the geometry car as far as the surface and that, and it looks great, but as far as the actual physical appearance of the ties, [I] don't know what they looked like in the field, and that would be the judgment of the track foreman.
Thornburg Dep. 53:25–54:7, Jan. 19, 2010.
Cowden also offered the expert testimony of Alan Blackwell, a railway consultant who prepared a report concerning BNSF's maintenance of the track. Blackwell stated that after reviewing the track and BNSF records, he believed the railway company violated internal and industry standards of care and therefore failed to provide Cowden with a reasonably safe work environment. BNSF moved to exclude Blackwell's testimony for a variety of reasons, most of which were rejected by the district court. However, the court expressed concerns about the factual foundation and methodology underlying Blackwell's conclusions because his report did not cite to specific facts from the documents he reviewed and did not explain how his methodology specifically led to his conclusions. The court “ultimately [found] that these are matters to be addressed at trial.” Order of Aug. 19, 2010, at 5. The district court noted that Blackwell could not testify that BNSF violated federal safety regulations, as that would be an impermissible legal conclusion. The court acknowledged, however, that Blackwell could still opine generally about the prudence of BNSF's maintenance efforts and whether they provided a safe work environment.
The district court granted in part BNSF's motion to exclude with respect to two issues. First, the district court ruled that Blackwell would not be permitted to testify about possible negligence relating to train speed. Citing cases from the Fifth, Sixth, and Seventh Circuits that held FELA negligence claims were precluded when an employer was in compliancewith FRSA regulations covering the same subject matter, the district court concluded that Blackwell could not testify about negligent speed because it was “undisputed that the train was traveling within the FRSA-mandated speed limit.” Id. at 7.2 Second, the district court ruled that Blackwell could not testify about repairs BNSF undertook on the section of track in question soon after Cowden's accident. Federal Rule of Evidence 407 bars evidence of subsequent remedial measures when used to prove negligence, and the district court concluded that was the purpose for which it was offered in the present case.
BNSF filed a motion for summary judgment on June 11, 2010. BNSF's motion argued that Cowden failed to show that BNSF knew or should have known about any unsafe condition, that he failed to show his injuries were caused by any act or omission by BNSF, or that the harm was reasonably foreseeable. In support of its motion, BNSF pointed to Cowden's own testimony that he had never encountered any problems over the section of track in question, despite passing over it hundreds of times 3 Neither BNSF's motion, nor its brief in support of that motion, mentioned any federal safety regulations.
The district court granted BNSF's motion on September 7, 2010, concluding that there was no genuine issue of material fact as to whether BNSF breached a duty of care owed to Cowden. Although BNSF had made no argument about federal safety regulations relating to its duty of care, the district court reasoned that the duty owed “under the FELA becomes somewhat more complex when one considers the applicability of [FRSA] regulations to a given situation, in that the question arises as to whether compliance with applicable FRSA safety regulations precludes a finding that the railroad has been negligent for purposes of the FELA.” Order of Sept. 7, 2010, at 6–7. In this case, the district court concluded that there were FRSA regulations that permitted railroads to operate trains under slow orders and that these regulations “protect against precisely the sort of injury Plaintiff allegedly suffered.” Id. at 8. The district court cited to four separate FRSA regulations that deal with train speeds in different contexts and stated that “these regulations concerning slow orders, and presumably others, directly address the harm that ultimately resulted.” Id. The district court therefore concluded that Cowden could not establish a successful FELA claim based on the speed of the locomotive over allegedly defective track.
FRSA regulations supply Defendant's duty of care with respect to...
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