Dunn v. Consolidated Rail Corp., Civil A. No. 92-821-A-1.
| Decision Date | 12 June 1995 |
| Docket Number | Civil A. No. 92-821-A-1. |
| Citation | 890 F. Supp. 1262 |
| Parties | Etta Lois Pullard DUNN, et al. v. CONSOLIDATED RAIL CORPORATION, et al. |
| Court | U.S. District Court — Middle District of Louisiana |
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Floyd J. Falcon, Jr. of Avant & Falcon, Baton Rouge, LA, and Joe R. Whatley, Jr. of Cooper, Mitch, Crawford, Kuykendall & Whatley, Birmingham, AL, for plaintiffs Etta Lois Pullard Dunn, Individually and as natural tutrix of the minors, Ladridyka Dunn and John Preston Dunn, and Cedric Darnell Dunn.
H. Alston Johnson of Phelps, Dunbar, Marks, Claverie & Sims, Baton Rouge, LA, for defendants Consolidated Rail Corp., Union Pacific R. Co., Illinois Central R. Co. and Kansas City Southern R. Co.
Brian T. Butler of the Law Firm of Grayson Brown, Baton Rouge, LA, for intervenor Travelers Ins. Co.
Gregory E. Bodin of Taylor, Porter, Brooks & Phillips, Baton Rouge, LA, for third party defendant Schuylkill Metals Corp.
This matter is before the court on post-trial motions filed by the plaintiffs and the defendants. The motions are opposed.
This is a wrongful death and survival action brought under state law and removed to this court on the basis of diversity jurisdiction. Plaintiffs Etta Lois Pullard Dunn and her three children, Cedric Darnell Dunn, Ladriyka Dunn, and John Preston Dunn, filed suit against the defendants, Consolidated Rail Corporation (Conrail), Missouri Pacific Railroad Company d/b/a Union Pacific Railroad Company (UP), Illinois Central Railroad (IC) and Kansas City Southern Railway Company (KCS). Kansas City Southern also brought a third-party claim against Schuylkill Metals Corporation, the employer of the decedent, Darnell Dunn. The third-party claim was based on an industry track agreement they entered into on March 10, 1960.
All parties consented to a trial before the magistrate judge. The jury returned a verdict March 1, 1994 and judgment was entered March 10, 1994.1 All post-trial motions were timely filed.
Based on changes in Louisiana law and facts developed during discovery, the plaintiffs moved to amend their complaint to add claims for punitive damages against Conrail under Louisiana, New York and Pennsylvania law. The court granted the plaintiffs' motions on July 26 and September 27, 1993.2 The jury was instructed on the law of punitive damages under both Louisiana and New York law. The jury determined that the plaintiffs had not proven their claim for punitive damages under either New York or Louisiana law. Plaintiffs now move for a partial new trial on the issue of punitive damages under Rule 59(a), Fed.R.Civ.P. Plaintiffs moved for a partial new trial on two grounds: newly discovered evidence and misconduct by the defendant during discovery and at trial. At the heart of the plaintiffs' motion for new trial are copies of two settlement agreements entered into by the Federal Railroad Administration (FRA) and Conrail on February 11 and October 7, 1993, which were received by the plaintiffs after the trial. On November 24, 1993, the plaintiffs directed to the FRA a letter request3 pursuant to the Freedom of Information Act (FOIA) and asked for copies of "all documents related to a letter of March 27, 1992 from Gregory B. McBride to Stanley Sassic," and "any and all other documents showing any violations or alleged violations of any and all laws and regulations administered by the Federal Railroad Administration at Con Rail's Frontier Yard or Shop in or near Buffalo, New York." The request was limited to the years 1991 and 1992. In support of their motion the plaintiffs submitted copies of the settlement agreements, the affidavit of counsel Joe R. Whatley, Jr., and copies of various discovery requests, deposition notices and Conrail's responses.4
Defendant Conrail filed two memoranda in opposition to the plaintiffs' motion,5 submitted the affidavit of John Chacona, Conrail's manager of FRA procedures, and an excerpt from the Rule 30(b)(6) deposition of Michael Lee Reddick taken on May 6, 1993.
In deciding whether to grant a new trial based on newly discovered evidence under Rule 59, the district court must consider whether the new facts: (1) would probably change the outcome; (2) could have been discovered earlier with due diligence; and (3) are merely cumulative or impeaching. Diaz v. Methodist Hosp., 46 F.3d 492, 495 (5th Cir.1995); Osburn v. Anchor Laboratories, Inc., 825 F.2d 908, 917 (5th Cir.1987), reh'g denied, 834 F.2d 425 (5th Cir.1987), cert. denied, 485 U.S. 1009, 108 S.Ct. 1476, 99 L.Ed.2d 705 (1988); Johnston v. Lucas, 786 F.2d 1254, 1257 (5th Cir.1986); La Fever, Inc. v. All-Star Ins. Corp., 571 F.2d 1367, 1368 (5th Cir.1978). New evidence that would merely affect the weight and credibility of the evidence ordinarily is insufficient for a new trial, as is evidence that is cumulative. See, 11 Wright & Miller, Federal Practice and Procedure, Civil § 2808, pp. 59-60 (1973). The burden is on the moving party to demonstrate that the new evidence clearly weighs in favor of a new trial. Diaz, 46 F.3d at 495.
A Rule 59 motion founded on allegations that an adverse party engaged in misconduct during discovery and trial is evaluated under the standards governing Rule 60(b)(3) motions based on fraud, misrepresentation or other misconduct of an adverse party. A Rule 60(b)(3) assertion must be proved by clear and convincing evidence and the conduct complained of must be such as to prevent the losing party from fully and fairly presenting its case or defense. Diaz, 46 F.3d at 496; Longden v. Sunderman, 979 F.2d 1095, 1103 (5th Cir.1992), citing, Rozier v. Ford Motor Co., 573 F.2d 1332, 1339 (5th Cir.1978). One who asserts that an adverse party has obtained a verdict through fraud, misrepresentation or other misconduct has the burden of proving the allegations by clear and convincing evidence. The rule applies to misconduct in withholding information called for by discovery and it does not require that the information withheld be of such a nature as to alter the result in the case. The rule is addressed to judgments that are unfairly obtained and not at those which are factually incorrect. Rozier, 573 F.2d at 1339.
Plaintiffs filed two memoranda in support of their motion and after review of both it is unclear exactly what factual allegations form the basis of the plaintiffs' motion. Without question the plaintiffs contend that receipt of the settlement documents subsequent to the trial warrants a new trial on punitive damages. However, in their initial memorandum the plaintiffs also stated that their motion was also based on trial deposition testimony which showed that Conrail failed to produce all documents in its possession related to other car inspections at the Frontier Yard. In their reply memorandum the plaintiffs stated that they would summarize the argument that they were making for a new trial. Yet, plaintiffs did not mention or discuss their initial allegation that Conrail had withheld discovery relevant to rail car inspections. Nor did the plaintiffs discuss their request for a new trial on grounds of newly discovered evidence. In view of this lack of clarity the court will address all of the plaintiffs' allegations under both theories asserted.
Plaintiffs' only elaboration of this basis for the motion is found in Whatley's affidavit. Counsel for plaintiffs stated that prior to trial all documents reflecting all inspections of car number 169119 (during June and July of 1992) were requested. Conrail produced only documents reflecting inspections of the car at the time of the repairs on July 1. Yet, during the trial deposition of Conrail's corporate representative it was learned that Conrail had other responsive documents that it did not produce.
Defendant pointed out that the plaintiffs did not identify the specific testimony that supports their contention.6 Defendant argued that it believed it had produced all responsive documents, and that even if it had not, the plaintiffs were made aware of the inbound and outbound inspection reports of the train carrying car 169119 on May 6, 1993 when they deposed Conrail's corporate representative, Michael Lee Reddick. Plaintiffs never asked for the inspection reports at that time or any time thereafter.
Plaintiffs did not address in detail their contentions related to withholding of documents about car inspections at the Frontier Yard. It is arguable whether any facts revealed in trial deposition testimony could be considered "newly discovered evidence." Moreover, the plaintiffs have failed to argue or explain how the receipt of the inspection reports during discovery and before trial would have probably changed the outcome of the trial on the issue of punitive damages. In Whatley's affidavit he stated that the documents were important "because they would have shown the kind of inspections performed by ConRail and how long it took with such inspections." This statement does not explain or establish how the documents or information would probably have changed the jury's verdict.
Plaintiffs also fall short of proving by clear and convincing evidence that the defendant obtained the verdict on punitive damages through this alleged discovery misconduct. Plaintiffs never identified the specific trial deposition testimony supporting their argument. Their allegations and arguments are simply too vague to support such a finding. Plaintiffs have also failed to explain how this conduct prevented them from fully and fairly presenting their case on punitive damages.
Plaintiffs focused on Conrail's alleged failure to produce or deliberate withholding of...
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