Vallejo v. BNSF Railway Co.

• Decision Date: 06 February 2021
• Docket Number: 119,100
• Court: Court of Appeals of Kansas
• Parties: Luis Vallejo, Appellee, v. BNSF Railway Company, Appellant.

Luis Vallejo, Appellee, v. BNSF Railway Company, Appellant.

No. 119, 100

Court of Appeals of Kansas

February 6, 2021

NOT DESIGNATED FOR PUBLICATION

Appeal from Wyandotte District Court; William P. Mahoney, judge.

Jonathan Sternberg, of Jonathan Sternberg, Attorney, P.C., of Kansas City, Missouri, and Chad M. Knight and Trent R Church, of Knight Nicastro MacKay, LLC, of Kansas City Missouri, for appellant.

Steven L. Groves, of Groves Powers, LLC, of St. Louis, Missouri, and Daniel J. Cohen, pro hac vice, of Law Offices of Daniel J Cohen, of St. Louis, Missouri, for appellee.

Before Buser, P.J., Atcheson, J., and Walker, S.J.

MEMORANDUM OPINION

Buser, P.J.

Luis Vallejo sued his employer, BNSF Railway Company (BNSF), under the Federal Employers Liability Act (FELA), 45 U.S.C. § 51 (2018) et seq., for personal injuries allegedly sustained while working on the railroad. Since that time, this case has undergone four jury trials, two of which are relevant to this appeal. In the second trial, the jury returned a 10-2 verdict in favor of BNSF on the issue of liability. The district court, however, granted Vallejo's motion for new trial after ruling that some jurors committed misconduct. The fourth trial resulted in a jury verdict in Vallejo's favor and the district court awarded him postjudgment interest under Kansas law.

BNSF appeals the district court's grant of a new trial after the second trial. It contends the district court abused its discretion by granting Vallejo's motion for new trial due to juror misconduct. The railroad asks our court to reinstate the jury's verdict in its favor. Alternatively, BNSF claims the district court erred by awarding Vallejo postjudgment interest under Kansas law after the fourth trial.

Upon our review, we hold the district court erred in granting Vallejo a new trial based on juror misconduct. Accordingly, we reverse the order granting a new trial and remand with directions to reinstate the jury's verdict in the second trial. Given our holding, BNSF's alternative claim of error regarding the award of postjudgment interest after the fourth trial is moot.

Factual and Procedural Background

In August 2008, Vallejo sued BNSF under FELA and sought damages for a back injury he sustained while working on the railroad. Vallejo claimed that he herniated a disk in his back while fabricating a sill step to install on a railcar. A sill step is a stirrup-like foothold on a railcar that employees use to mount and dismount the railcar.

On August 4, 2006, Vallejo was called in to work overtime at BNSF's Argentine Yard in Kansas City, Kansas. After Vallejo arrived at the yard, he selected the last work truck available to him. According to Vallejo, the truck had few tools that he needed to perform his job. Vallejo asked the lead man, Jeremy Tordoff, if he could borrow some tools. Tordoff told Vallejo that he did not have any tools.

Vallejo asked Tordoff to call the foreman and request some tools. Tordoff called a BNSF foreman, Charles Sherrill, and asked that he provide Vallejo some tools. During the conversation Vallejo overheard Sherrill talking loudly to Tordoff. According to Vallejo, after the conversation Tordoff explained, "'[Sherrill] just hung up on me. He didn't say he was going to bring anything. He just got upset about it.'"

Vallejo and Tordoff drove to a storeroom to locate some tools but no employees were on duty. Vallejo next searched the workplace and located tools that he needed to fabricate the sill step. Vallejo explained that he found a pipe wrench and a hammer, and his work truck had a torch and a vice. Vallejo noted the torch had a cutting tip, which appeared to be in usable condition. But the vice was missing a bolt and the teeth were not in good condition. Upon inspection, however, Vallejo believed the vice was fairly sturdy and still usable.

After Vallejo found the tools he needed, he obtained a piece of metal that would become the sill step and drove back to his work site. Vallejo testified that he needed to make two 90-degree bends in the metal to make the sill step. According to Vallejo, the torch he used to heat the metal was not effective and, as a result, he had to overexert himself and use a significant amount of effort to twist the metal. During the fabrication, the metal slipped in the vice and "jerked" Vallejo. Eventually, Vallejo completed the task and bent down to pick up the scrap metal that had dropped on the ground. When Vallejo stood back up, he felt an extreme pain in his back. Vallejo was later diagnosed with a herniated disk.

This case has resulted in four jury trials. The first trial occurred in 2010 and culminated in a jury verdict in favor of Vallejo. Upon finding BNSF negligent, the jury awarded Vallejo over $1.1 million in damages. BNSF appealed, contending that the district court erred by refusing to instruct the jury on contributory negligence. Our court agreed and reversed and remanded for a new trial. Vallejo v. BNSF Railway Company, 46 Kan.App.2d 498, 263 P.3d 208 (2011).

The second trial occurred in 2015. Following the two-week trial which included lengthy deliberations, the jury returned a 10-2 verdict in favor of BNSF on the issue of liability.

Vallejo filed a motion for new trial, contending that three jurors committed misconduct. In support of his motion, Vallejo submitted declarations from the two jurors who dissented from the verdict-Juror R. and Juror F.

In her declaration, Juror R. attested to the following under the penalty of perjury:

• During a break on the second or third day of trial, Juror T. approached Juror R. and stated that "very firmly and emphatically, 'I've already made up my mind.'"

• Towards the end of the first week of trial, Juror R. overheard a male juror behind her state that he "had already made up his mind." Juror R. turned around and saw three male jurors talking, but she could not identify which juror made the comment.

• During jury deliberations, Juror H. argued strongly in favor of the railroad. But instead of focusing on the evidence presented at trial, Juror H. "constantly focused on how her company works, and made it clear that she was basing her decision almost entirely on her company's behavior instead of the evidence about the railroad's behavior." For example, when discussing whether the railroad failed to provide Vallejo with the proper tools and ignored the requests for proper tools, Juror H. said, "'At my plant, we don't do this, '" "'There is no way in the world this would happen, '" "'I know because at my plant that wouldn't happen, '" and "'I cannot believe the railroad did that, and I don't believe it happened.'"

• During jury deliberations, Juror H. also claimed that Vallejo had "injured himself at home and he's just trying to get money from BNSF for something he did at home."

The declaration that Juror F. signed generally supported Juror R.'s account of the statements that Juror H. made during jury deliberations. Juror F. declared under the penalty of perjury that

"[Juror H.] focused on how things worked at her company, and she said that was why she refused to believe the testimony of Mr. Vallejo and all the other car department employees regarding unavailable and inadequate tools, and supervisors ignoring requests for tools and still expecting the workers to get the job done. I also recall her suggesting that Mr. Vallejo actually hurt himself at home."

Before trial, Juror H. stated that she worked as a general manager for Harvest Meat Company. Juror H. explained that her job responsibilities include ensuring the safety of the workplace and she takes that responsibility seriously. In her position, Juror H. also ensures that her company's employees have the right equipment and tools. During voir dire, Vallejo's counsel asked Juror H. whether she "would in any way, shape or form tend to see the reality of the workplace more through the lens of the employer by virtue of [her] work, or if [she] can set that aside." Juror H. explained she "would have to set that aside" as she does when employees make claims for injuries in her workplace.

In response to Vallejo's motion for new trial, BNSF presented affidavits from Jurors T. and H. in which they denied making the statements that Jurors R. and F. attributed to them. Specifically, Juror T. denied telling any juror before deliberations that she had already made up her mind. Juror H. stated that her vote was based entirely upon the evidence presented at trial and denied making the comments referenced in Juror R.'s declaration.

In February 2016, the district court held a hearing on Vallejo's motion for new trial. Although presented with directly contradictory written declarations and affidavits, the district court ruled that it would not recall the jury for testimony relating to the claimed juror misconduct. Of note, neither party has appealed that ruling. After hearing the parties' arguments, and considering the written declarations and affidavits, the district court found the jurors committed misconduct and granted Vallejo's motion for new trial. The district court explained:

"This case wasn't a long case, but it was pretty long, and the allegation is that just a couple days into the trial, there's comments made that somebody made up their mind already contrary to the lengthy admonition the Court gave after the jurors were sworn in and . . . I made it clear that, 'You've got to keep an open mind. You can't decide this case based on what you've heard so far. You have to wait.' And so . . . you have three people allegedly having a conversation about somebody making up their mind. You have a comment that one juror was making that same statement prior to deliberation. And then you have comments that jurors were deciding this case

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