Weber v. Bnsf Ry. Co.

CourtUnited States State Supreme Court of Montana
Citation362 Mont. 53,261 P.3d 984,2011 MT 223
Docket NumberNo. DA 10–0413.,DA 10–0413.
PartiesHeather L. WEBER, Plaintiff and Appellant,v.BNSF RAILWAY COMPANY, a Delaware corporation, Defendant and Appellee.
Decision Date13 September 2011

362 Mont. 53
261 P.3d 984
2011 MT 223

Heather L. WEBER, Plaintiff and Appellant,
BNSF RAILWAY COMPANY, a Delaware corporation, Defendant and Appellee.

No. DA 10–0413.

Supreme Court of Montana.

Submitted on Briefs July 13, 2011.Decided Sept. 13, 2011.

[261 P.3d 987]

For Appellant: Jason L. Harkins; Harkins Law Firm, PC, Billings, Montana.For Appellee: Jeff Hedger, Michelle T. Friend, Ronald E. Youde; Hedger Friend P.L.L.C., Billings, Montana.Justice BETH BAKER delivered the Opinion of the Court.

[362 Mont. 54] ¶ 1 Plaintiff Heather L. Weber (“Weber”) appeals from the Thirteenth Judicial District Court's judgment for defendant BNSF Railway Company (“BNSF”) after a jury found no negligence by the railroad in Weber's Federal Employers' Liability Act (“FELA”) claim. 45 U.S.C. §§ 51–60. Weber argues the District Court erred in dismissing her claim under the Locomotive Inspection Act (“LIA”), 49 U.S.C. §§ 20701–20703, and in granting BNSF's motion to exclude portions of expert testimony pertaining to the results of a positron emission tomography (“PET”) scan performed on Weber. We reverse the District Court in part and remand for further proceedings.

¶ 2 We consider the following issues on appeal:

¶ 3 1. Whether the District Court erred in granting BNSF's motion for judgment as a matter of law on Weber's LIA claim.

¶ 4 2. Whether the District Court erred in granting BNSF's motion to exclude testimony from Weber's treating physician about the results of the PET scan.


¶ 5 Weber worked as a locomotive engineer for BNSF. In the early morning hours of February 4, 2007, Weber and Chad Ferguson, a conductor, were working on a two-person train crew taking a loaded coal train from Gillette to Guernsey, Wyoming. The train, 6,930 feet in length, was powered by two locomotives in the front of the train together with two locomotives at the rear, referred to as distributed power (“DP”). The engineer in the lead locomotive controls the DP and operates the DP in tandem with the front locomotives. The DP can be disabled, or “isolated” by the engineer, meaning the DP provides no power.

[261 P.3d 988]

¶ 6 The tracks leading into Guernsey go through several tunnels, including one known as Tunnel 3. Prior to entering Tunnel 3, a sign alerts engineers to isolate the DP. The DP must be isolated because the front and back ends cannot communicate once the train enters the tunnel.

¶ 7 As Weber approached the tunnel around 3:00 a.m., she realized she had not yet isolated the DP. Weber stopped the train to isolate the DP. Weber described that she “stopped sloppy,” causing bunching and stretching between the railcars, because she did not wait the appropriate amount of time when changing throttle positions to slow the train gradually. Weber stopped the train in this manner because she was unfamiliar with the location and unsure how long it would take for the train to stop. The train came to a stop approximately ten to fifteen railcars from the entrance of the tunnel on a section of single track, blocking all rail traffic going in and out of Guernsey.

¶ 8 After isolating the DP, Weber attempted several times to move the train forward. The train had moved slightly when a knuckle, a coupling mechanism connecting railcars, broke. When the knuckle broke, the train stopped and went into “emergency.” A default code also appeared on the computer screen of the locomotive. As part of his duties as conductor, Ferguson attempted to fix the broken knuckle but lacked the required tools. Ferguson called for mechanical assistance and ultimately replaced the knuckle when assistance arrived several hours later. However, the default code remained on the screen. To remove the code from the screen, the engineer must determine what the code is referencing and correct the problem. Despite phone calls to BNSF operators, Weber could not determine the origin of the default code and was unable to move the train. Ultimately, Houston P. Cullison, a trainmaster and supervisor, was called and sent a diesel maintenance crew to investigate the problem. Cullison also went to the site of the train, arriving shortly after 8:00 a.m.

[362 Mont. 56] ¶ 9 Cullison did not see the computer screen but was told by Weber that the default code read “BLD.” Although Weber later learned BLD referred to the application of brakes to the DP, no one on site that day knew what the code meant. The maintenance team performed a “field load test” on the front locomotives which showed they were producing power. Weber then attempted to put the train in motion by placing the throttle in multiple positions, but it would not move. Cullison directed Weber to connect with the DP to provide power to move the train. Weber complied with Cullison's instructions and the train began proceeding forward. Cullison then instructed Weber to isolate the DP since the train was moving into the tunnel. Once the DP was isolated, the train began to lose power and came to a stop in the tunnel. Cullison directed Weber to stay in the cab so she could back out of the tunnel while Cullison and Ferguson went to the rear to protect the backward shove of the mile-long train. The two front locomotives continued to run while Weber waited in the locomotive cab inside the tunnel. Witness testimony conflicted as to how long Weber remained in the tunnel, ranging from ten to forty minutes. Upon reaching the rear of the train, Cullison radioed Weber to back up the train. Weber then reactivated the DP and reversed the train out of the tunnel, providing sufficient room so two additional engines could be attached to the front of the train outside the tunnel. Another crew was called to the site with the two replacement engines to attach to the front of the train and move it through the tunnel.

¶ 10 Since Weber and Ferguson had reached the end of their shift, they were transported by van to a motel facility provided by BNSF. The next day, Weber and Ferguson were assigned to another train headed for Gillette, Wyoming. Weber complained of feeling nauseous and attempted to sleep while the train was waiting to move. Weber testified that over the coming weeks and months she experienced a number of symptoms including nausea, headaches, fatigue, disorientation, tremors, forgetfulness and difficulty focusing her eyes.

¶ 11 On July 31, 2007, Weber filed suit under FELA to recover for personal injuries allegedly suffered on February 4, 2007, during the course and scope of her employment with BNSF. Weber's Complaint alleged four

[261 P.3d 989]

counts. The first count alleged that BNSF breached its duty under FELA. The second count was based on BNSF's alleged violation of the LIA. Counts Three and Four alleged BNSF's violation of the Safety Appliance Act (“SAA”), 49 U.S.C. §§ 20301–20306, federal regulations and other standards.

¶ 12 In March 2008, Weber attended her first appointment with Dr. Hugh Batty. Based on Weber's history, Dr. Batty formed a working [362 Mont. 57] diagnosis that Weber had suffered carbon monoxide poisoning when her train stalled in Tunnel 3. Dr. Batty provided Dr. Daniel Alzheimer, a neurologist, with Weber's history, indicating she had been exposed to carbon monoxide. At Dr. Batty's request, Dr. Alzheimer performed a PET scan of Weber on August 14, 2008. Dr. Alzheimer interpreted the PET scan and found it “consistent with [carbon monoxide] exposure with no corroborative findings on the CT scan as discussed.” Dr. Batty then diagnosed Weber as having permanent brain damage secondary to carbon monoxide exposure, as a result of being confined in the tunnel with the running locomotives.

¶ 13 Prior to trial, BNSF filed a motion in limine to exclude the PET scan evidence on the grounds that Dr. Alzheimer had not been disclosed as an expert witness, Plaintiff's expert disclosures did not show reliance on the PET scan by any properly disclosed expert, and M.R. Evid. 703 did not permit the PET scan to be “bootstrapped” in by Dr. Batty, despite his claim to having relied on it in formulating his diagnosis. Weber designated Dr. Alzheimer as a potential witness on February 17, 2010. The District Court denied BNSF's motion on March 12, 2010, indicating Weber could introduce proper foundational testimony through Dr. Alzheimer should she desire to have Dr. Batty testify to the results of the PET scan. BNSF renewed its motion in limine when it learned Dr. Alzheimer would not testify at trial. After hearing considerable argument from both sides, the District Court granted BNSF's motion to exclude the results of the PET scan.

¶ 14 At the end of Weber's case-in-chief, BNSF moved the court, pursuant to M.R. Civ. P. 50(a), to dismiss Weber's LIA and SAA claims. The court commented:

I don't know that the Locomotive Inspection Act or the Safety Appliance Act has a lot to do with this case. There hasn't been any expert testimony on those things, but they are part of the overall picture. I don't know whether it's a condition as opposed to a cause. I—it wouldn't certainly be the direct cause of the—or the proximate cause, as we say in Montana, about the injury, but nonetheless, the motion for directed verdict ... is denied.

BNSF renewed its motion regarding the LIA and SAA claims at the end of its case-in-chief. The District Court's exact ruling is unclear. The court stated, “I can handle the SSA [sic] real easy, that's all that contributed to was an elongated stop, didn't have to do with the tunnel. That's the way I look at it.” The court denied both parties' motions for directed verdict. The court refused, however, to use Weber's proposed special verdict form which, though not part of the record on appeal, apparently contained questions pertaining to the LIA and SAA. The [362 Mont. 58] court also refused Weber's proffered jury instructions on the LIA and SAA. The jury was thus not presented with Weber's claim that BNSF violated the LIA or SAA.

¶ 15 The jury returned its verdict on May 7, 2010, and...

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