Melton v. Bnsf Ry. Co.

• Decision Date: 22 February 2010
• Docket Number: No. W2009-00283-COA-R3-CV.,W2009-00283-COA-R3-CV.
• Citation: 322 S.W.3d 174
• Parties: Laura Jan MELTON v. BNSF RAILWAY COMPANY.
• Court: Tennessee Court of Appeals

322 S.W.3d 174

Laura Jan MELTON

v.BNSF RAILWAY COMPANY.

No. W2009-00283-COA-R3-CV.

Court of Appeals of Tennessee,Western Section, at Jackson.

Jan. 19, 2010 Session.

Feb. 22, 2010.

COPYRIGHT MATERIAL OMITTED.

William C. Spencer, John G. Wheeler, William C. Spencer, Jr., Memphis, TN, and Wayne L. Robbins, Jr., Fort Worth, TX, for the appellant, BNSF Railway Company.

John A. Day, Laura W. Bishop, Brentwood, TN, Don R. Riddle, Houston, TX and Tom R. Letbetter, George R. Payne, Houston TX, for the appellee, Laura Jan Melton. ¹

OPINION

J. STEVEN STAFFORD, J., delivered the opinion of the Court, in which ALAN E. HIGHERS, P.J., W.S. and DAVID R. FARMER, J., joined.

J. STEVEN STAFFORD, J.

This is an appeal from a jury verdict in favor of the Appellee in a case based on the Federal Employer's Liability Act, 45 U.S.C. § 51 et seq. Appellee filed this case as the widow and personal representative of her husband, who died as a result of injuries he sustained while working for the Appellant. Appellant appeals, arguing that the trial court erred in not granting it a directed verdict, in not granting its motion for new trial, in making several evidentiary rulings during the trial, and in not granting its motions for mistrial. We affirm the trial court's denial of the Appellant's motions for directed verdict, finding that the Appellee presented sufficient proof to create a question for the jury. However, finding that the trial court erred in allowing the Appellant's expert to be questioned on a non-testifying expert's deposition, and that the jury was more likely than not guided by prejudice, passion, and bias, we reverse the trial court's decision denying Appellant's motion for new trial. Further, finding material facts in dispute, we reverse in part and affirm in part the trial court's decision on Appellant's motion for summary judgment. Reversed in part, affirmed in part and remanded.

On July 11, 2006, Ronald Melton (“Mr. Melton”) was struck by a rail car in the BNSF Tennessee Yard and died as a result of his injuries. At the time of his death, Mr. Melton was employed by Appellee, BNSF Railway Company(“BNSF”), as a “carman.” Mr. Melton and his co-worker, John Carnell (“Mr. Carnell”) had been instructed to locate and repair a rail car with a bent pin lifter. The car needing repair was located on track 301, a protected track. ² Mr. Melton and Mr. Carnell went to track 2051 (also referred to as Track 51)(“Track 51”) to look for the rail car needing repair. The parties dispute whether Pat Vaiden (“Mr. Vaiden”), a Leadman for BNSF and Mr. Melton's supervisor, sent Mr. Melton and Mr. Carnell to Track 51 or Track 301.

Track 51 is a “bad order” track, where cars needing repair are sent. The rail cars on track 51 are “humped” onto the track-that is they are moved down an incline onto track 51, passing through “retarders,” which reduce the speed, and then roll freely until they are stopped by the force of gravity or until they come into contact with another car. The section of track 51 at issue is located in an area of the yard that is sloped on either side and referred to as the “bowl.”

Mr. Melton drove a BNSF road truck to locate the rail car needing repair. He parked the road truck between track 301 and track 51 with the rear of the road truck facing south. Two cars were coupled ³ together on track 51, rail car AOK-181556 (“AOK”) and rail car FURX-824206 (“FURX”), adjacent to where Mr. Melton parked the road truck. There were several other rail cars north of these two coupled rail cars. Upon exiting the road car, Mr. Melton told Mr. Carnell to be careful as track 51 was a “live” track. Mr. Melton and Mr. Carnell then walked in a northerly direction up track 51, looking for the rail car needing repair. When they could not find it, they decided to return to their truck to call Mr. Vaiden for more information. Upon reaching the truck, Mr. Melton went towards the driver's side and Mr. Carnell went towards the passenger side. After the two parted, Mr. Carnell saw a rail car approaching from the south on track 51 and yelled to warn Mr. Melton. The car Mr. Carnell saw was CEFX-30498(“CEFX”), which had been humped onto track 51. CEFX collided with FURX causing FURX and AOK to move forward. AOK struck Mr. Melton, causing his injuries. The parties dispute where exactly Mr. Melton was in relation to his road truck and the track when he was struck.

Mr. Melton's wife, Laura Jan Melton (“Mrs. Melton”), Appellee, filed this suit against BNSF on October 9, 2006, based on the Federal Employer's Liability Act (“FELA”), 45 U.S.C. § 51 et seq. BNSF answered the complaint on November 14, 2006, denying that it was negligent and raising as a defense the contributory negligence of Mr. Melton. Mrs. Melton subsequently, with leave of the court, amended her complaint, and BNSF filed an amended answer, raising preemption as an additional defense. Again with permission of the court, Mrs. Melton filed a second amended complaint adding the allegation that BNSF violated the Code of Federal Regulations, 49 Part 213.37 on vegetation. BNSF filed a second amended answer denying such violation.

On January 17, 2008, BNSF filed a Motion for Summary Judgment contending that there were no disputed material facts and that Mrs. Melton's claims were preempted. On February 21, 2008 the trial court heard argument on BNSF's Motion for Summary Judgment. ⁴ The trial court entered an order on March 6, 2008, granting BNSF's motion on the issues of vegetation and ballast ⁵ and denying the motion as to all other issues.

An approximately two and a half week jury trial was held in September 2008. The jury returned a verdict finding BNSF negligent and Mr. Melton not negligent. The jury awarded one million dollars in pecuniary damages and four million dollars in damages for Mr. Melton's conscious pain, suffering, and mental anguish. A final judgment was entered on October 9, 2008, reflecting this decision.

BNSF filed a motion pursuant to Tennessee Rule of Civil Procedure 50.02, 52.02 and 59.02, asking the trial court to set aside the verdict and the judgment entered, and to enter judgment in accordance with BNSF's previous motions for summary judgment and directed verdict. BNSF argued that the trial court had erred in not granting summary judgment as “discovery had revealed no factual basis to support any of plaintiff's thirty one separate claims,” and that the plaintiff's claims were preempted. BNSF further argued that the trial court had erred in not granting it a directed verdict at the close of Mrs. Melton's proof and again when BNSF renewed it's motion at the close of all proof, as Mrs. Melton has failed to present any evidence in support of her claims. Also, BNSF requested that the trial court, pursuant to Tennessee Rule of Civil Procedure 52.02, amend the judgment to reflect Mr. Melton's own negligence and to reflect a “more appropriate award of damages.” BNSF also requested a new trial, contending that the verdict was excessive; the verdict indicated “passion, prejudice or caprice on the part of the jury”; the verdict was against the clear weight of the evidence; that the trial court made numerous other errors in ruling on certain questions asked and comments made by Mrs. Melton's counsel and other evidentiary issues; and that the trial court erred in denying BNSF's multiple motions for mistrial. In the alternative, BNSF asked for a remittitur.

The trial court held a hearing on BNSF's motion on December 4, 2008. Prior to hearing oral arguments the trial court stated that it was denying BNSF's motion for a new trial or to set aside the jury verdict. The trial judge went on to explain her decision. The trial court stated that the jury must not have believed the railroad's witnesses and that the jurors probably believed that Mr. Vaiden had given Mr. Melton the understanding that he was going to “make the phone call to alert the powers that be, that Mr. Melton was going to be in that area.” The trial court went on to state, “[t]he Court having that rationale that the jurors most likely felt there was a cover up by the railroad that there was some cover up by the railroad, their processing of that information.” The trial court then allowed the parties to argue on the issue of remittitur. Prior to arguing, counsel for BNSF asked for clarification that the trial court was denying its motion for the reasons stated in the record, and the trial court stated, “Right, there was a cover up by the railroad.” The parties then proceeded to argue on remittitur. The trial court then granted BNSF a remittitur reducing the award of damages for pain and suffering by one million dollars, making a total award of three million dollars for pain and suffering and reducing the total award from five million dollars to four million dollars. An order was entered reflecting the trial court's denial of BNSF's motion and the grant of remittitur on January 9, 2009. Mrs. Melton filed a Notice of Acceptance of Remittitur Under Protest on January 12, 2009. The trial court entered an amended final judgment reflecting the remittitur on January 16, 2009. BNSF timely filed an appeal on January 30, 2009.

On appeal BNSF raises the following issues as we restate them:

1. Whether the trial court erred in denying BNSF's motions for directed verdict and motion for judgment in accordance with the motion for directed verdict?

2. Whether the trial court erred in denying the defendant's motion for new trial?

3. Whether the trial court erred in the admission of evidence, warranting a new trial?

4. Whether the trial court erred in refusing to declare a mistrial?

Mrs. Melton raises one issue for our review:

1. Whether the trial court erred in granting BNSF summary judgment on the issues of vegetation and ballast? ⁶

Motion for Directed Verdict

BNSF first contends that the trial court erred when it denied BNSF's motion for directed verdict at the close of Mrs. Melton's evidence and then when BNSF renewed...