Dorn v. Burlington Northern Santa Fe

• Citation: 397 F.3d 1183
• Decision Date: 07 February 2005
• Docket Number: No. 03-35071.,03-35071.
• Parties: Kristi W. DORN, personal representative est Larry M. Dorn, Plaintiff-Appellee, v. BURLINGTON NORTHERN SANTA FE RAILROAD COMPANY, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

397 F.3d 1183

Kristi W. DORN, personal representative est Larry M. Dorn, Plaintiff-Appellee, v. BURLINGTON NORTHERN SANTA FE RAILROAD COMPANY, Defendant-Appellant.

No. 03-35071.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 5, 2004.

Filed February 7, 2005.

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Charles G. Cole and Alice E. Loughran, Steptoe & Johnson LLP, Washington, DC, for the defendant-appellant.

Alexander (Zander) Blewett, III and Kurt M. Jackson, Hoyt & Blewett PLLC, Great Falls, MT, for the plaintiff-appellee.

Susan J. Rebeck, Nick A.W. Rotering, Montana Department of Transportation Legal Services, Helena, MT, for the amicus curiae.

Appeal from the United States District Court for the District of Montana; Richard F. Cebull, District Judge, Presiding. D.C. No. CV-99-00168-RFC.

Before: KLEINFELD, CALLAHAN, Circuit Judges, and BERTELSMAN,^* District Judge.

CALLAHAN, Circuit Judge:

This is an appeal from a jury verdict awarding the plaintiff in a wrongful-death and survivorship action $6,655,200 in compensatory and punitive damages. The defendant seeks a new trial, arguing that the district court reached an incorrect legal conclusion that infected certain evidentiary rulings, the jury instructions, and the manner in which the punitive-damages phase of the trial was conducted. We agree that the district court should have granted the defendant's motion for a new trial in light of various trial errors. Having jurisdiction under 28 U.S.C. § 1291, we reverse the judgment and remand.

I. Background

Near Hardin, Montana, railroad tracks of the Burlington Northern Santa Fe Railway Company ("Burlington") run north and south parallel to Montana Highway 87. Somewhere thereabouts, a short gravel road leads from Highway 87 in a southwestwardly direction. Approximately ninety-four feet from Highway 87, the gravel road crosses the Burlington's railroad tracks at a sharp angle (roughly 45 degrees) as it heads into the parking lot of Cenex, a privately-owned commercial grain elevator. The gravel road also provides access to a number of residences that lie beyond Cenex's facility.

Burlington did not build the gravel road, the pertinent portions of which lie on land owned by the State of Montana or by Burlington. Rather, Cenex's predecessor constructed the gravel road pursuant to a permit from the Montana Department of Transportation ("MDT") in 1968. Burlington nonetheless installed a stop sign with a railroad-crossing symbol at the edge of the tracks — albeit without crossing gates or warning lights.

In 1975, a truck traveling west on the gravel road across Burlington's tracks was struck by a southbound train. This scenario unfolded again at the same location 21 years later in 1996. After the 1996 accident, Burlington was provided with the opinion of a consultant. The consultant opined that the cause of the accident was the truck driver's inability to see far enough up the tracks at such a sharp angle to detect the oncoming train in time to avoid a collision. The consultant also recommended realigning the angle of the crossing from 45 degrees to 90 degrees and installing automatic crossing gates with flashing lights. Neither Montana, nor Cenex, nor Burlington realigned the crossing, or installed automatic gates or flashing lights.

On the afternoon of December 2, 1999, Larry Dorn was driving a grain truck along the gravel road from Highway 87 toward the Cenex facility as a southbound Burlington train approached the crossing. Evidence in the record suggests that other truckers had warned him that morning that he should not follow the gravel road's 45-degree angle as he approached the tracks; instead, he should "square up" his truck to the tracks at a 90-degree angle before crossing so as to get a longer and better view of the tracks to the north. Additionally, there is conflicting evidence as to whether Dorn approached the tracks at a 45-degree angle, or if he altered his vehicle's trajectory to "square up" perpendicular to the tracks. Finally, there is also some question as to whether he came to a complete stop at the tracks before starting across them.

In any event, Dorn did not make it all the way to the other side of the crossing. He was struck and killed by the oncoming train. Aged twenty-three years, he was a husband and the father of a two-year-old daughter at the time of his death. Seeking compensatory and punitive damages and asserting diversity jurisdiction, Dorn's widow, Kristi W. Dorn ("plaintiff"), filed a wrongful-death and survivorship action against Burlington in the United States District Court for the District of Montana.

II. Procedural History

Prior to trial, plaintiff filed a motion in limine to prevent Burlington from arguing that her husband could have "squared up" to the crossing. District Judge Jack D. Shanstrom (who presided over the case in its pretrial stages) prohibited Burlington "from mentioning or arguing to the jury that ... Dorn should have driven in the left hand on-coming lane of traffic ... in order to reposition his truck or square-up to approach the crossing at a 90 degree angle." Subsequent rulings suggest that the district court premised this prohibition on the notion that the gravel road was a public highway subject to Montana's traffic laws — one of which generally forbids motorists from maneuvering their vehicles away from the right half of the roadway. Mont.Code Ann. § 61-8-321. This public-highway determination also led the court to rule that Dorn was not obliged to obey the stop sign erected by Burlington, on the theory that a private company was not authorized to erect a traffic control signal on a public highway.

The case was later reassigned to District Judge Richard F. Cebull, who, consistent with his predecessor's orders, denied Burlington's motion to strike plaintiff's claim for punitive damages. In particular, District Judge Cebull specified that Burlington could not submit evidence that it had put up a stop sign or that Dorn should have obeyed it. The district court indicated that it would allow Burlington to put on evidence that it had erected a non-complying stop sign only if plaintiff implied to the jury that the visual warnings at the crossing were inadequate.

A. Expert Witnesses

During the trial, plaintiff called two expert witnesses to testify about the cause of the accident, and one expert to offer his opinions about hedonic damages.¹ Meanwhile, Burlington sought to advance the theory at trial that Dorn had "squared up" to the tracks but did not stop before crossing them.

1. Montana Highway Patrol Officer Steve Wiesnewski

One of plaintiff's experts, Montana Highway Patrol Officer Steve Wiesnewski, explained that he had investigated Dorn's accident on the day that it occurred. Wiesnewski stated that he found a tire mark at the crossing that was at a 45-degree angle to the tracks. However, a videotape of the accident scene as it appeared that evening, recorded by the Montana Highway Patrol, depicts the tire mark lying at 90 degrees in relation to the tracks. The videotape initially was admitted into evidence as an exhibit without objection, and Wiesnewski testified that it was necessary to review the video to understand what happened in the accident.

The district court, however, excluded the videotape when the plaintiff objected that the parties had not questioned Wiesnewski about the videotape during his deposition. The district court also ordered Burlington not to ask Wiesnewski, on cross-examination, whether the videotape shows the tire mark lying at a 90-degree angle, as such a question would "call for expert testimony that was not disclosed." The district court also forbade Burlington from questioning Wiesnewski on his perception of the tire mark's direction. Nonetheless, Wiesnewski conceded during cross-examination that he believed that the vehicle was perpendicular to the tracks at the time of the accident. The district court then granted plaintiff's verbal motion to strike and instructed the jury to disregard Wiesnewski's concession, on the ground that it was "directly contrary to his testimony on direct."

2. William Douglas Berg, Ph.D.

Later in the trial, plaintiff called another expert, William Douglas Berg, who holds a Ph.D. in civil engineering. Berg told the jury that it was physically impossible to drive along the gravel road and approach the crossing at a 90-degree angle without going off the road — regardless of whether a truck crossed the centerline. Burlington sought to rebut this opinion by calling certain truck drivers to testify that they had managed on a daily basis to "square up" to the tracks at a right angle, without going off the road. Burlington also asked for permission to submit evidence that other truck drivers had cautioned Dorn to "square up" to the crossing on the day of his death.

The district court recollected the pretrial ruling on plaintiff's motion in limine, where District Judge Shanstrom prohibited any suggestion that Dorn should have crossed the centerline to get a better view. The district court construed this ruling as barring evidence that Dorn could have approached the crossing at a 90-degree angle and denied both of Burlington's requests.

3. Stan V. Smith, Ph.D.

Finally, plaintiff called Stan V. Smith, Ph.D., an economist, to provide expert opinions regarding hedonic damages in general, as opposed to Dorn's hedonic damages in particular. Burlington objected to this evidence, insisting that the theory of hedonic damages was unreliable and that testimony on the topic would invade the province of the jury. The district court overruled the objection and allowed the jury to consider Smith's opinions.

In response, Burlington sought to call Thomas Ireland, Ph.D., to opine that economists lack the tools to estimate the value of a human life. In so doing, Ireland would not have testified that Smith had somehow overestimated or miscalculated the generalized measure of hedonic damages....