Bullock v. BNSF Railway Co.
111599
| Kan. | Aug 4, 2017Background
- Plaintiff Mark Bullock, a BNSF employee, slipped on diesel fuel spilled by coworker Chris Wise and sued BNSF under FELA for negligence.
- BNSF conceded it had not disciplined Bullock; evidence introduced at trial showed Wise was subjected to post-accident "alternative handling" discipline (including a scripted statement he read to coworkers).
- The district court admitted both the investigative report and the disciplinary materials; the jury found BNSF 100% at fault and awarded $1,720,000.
- BNSF appealed, arguing the disciplinary evidence was a subsequent remedial measure barred by K.S.A. 60-451; the Court of Appeals agreed and reversed and remanded for a new trial.
- The Kansas Supreme Court granted review, held employee discipline is a subsequent remedial measure inadmissible to prove negligence or culpable conduct, and affirmed reversal and remand.
- The Court also found portions of plaintiff’s counsel’s closing argument improperly appealed to community values and warned such arguments are forbidden on retrial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether post-accident employee discipline is a "subsequent remedial measure" under K.S.A. 60-451 | Discipline is not a remedial measure; admissible | Discipline is a remedial measure and barred to prove negligence | Held: Post-accident employee discipline is a subsequent remedial measure and inadmissible to prove negligence or culpable conduct |
| Whether investigative reports/tests are barred as subsequent remedial measures | Investigation evidence is admissible and can provide context for discipline-related materials | Investigation is distinct and admissible; discipline is not | Held: Investigative reports/tests are admissible, but court must redact/disallow portions that inferentially disclose subsequent remedial measures |
| Whether evidence of discipline is admissible to prove causation or rebut contributory negligence | Discipline admissible to prove causation and to rebut BNSF's contributory negligence defense | Such uses impermissibly prove negligence; barred by statute/policy | Held: Not admissible to prove causation or to rebut contributory negligence; those uses would impermissibly prove negligence |
| Whether plaintiff counsel’s closing argument (appeal to community values/justice) was proper and whether any error was reversible | Argument was proper or harmless | Argument was improper and prejudicial | Held: Comments were improper (appeal to community values/conscience); court did not decide harmlessness because reversal on evidentiary ground was sufficient; counsel must avoid such arguments on retrial |
Key Cases Cited
- St. Louis Southwestern R. Co. v. Dickerson, 470 U.S. 409 (U.S. 1985) (FELA procedural/evidentiary issues governed by forum state law)
- State v. Ward, 292 Kan. 541 (Kan. 2011) ("reasonable probability" harmless-error test applicable)
- Specht v. Jensen, 863 F.2d 700 (10th Cir. 1988) (post-accident discipline properly excluded under Rule 407)
- Rocky Mountain Helicopters v. Bell Helicopters, 805 F.2d 907 (10th Cir. 1986) (distinguishing investigative reports from remedial measures)
- DiPietro v. Cessna Aircraft Co., 28 Kan. App. 2d 372 (Kan. Ct. App. 2000) (subsequent remedial measures not admissible to rebut comparative-fault defenses)
- McIntyre v. Colonies-Pacific, LLC, 228 Cal. App. 4th 664 (Cal. Ct. App. 2014) (statutory history/policy support excluding remedial measures to prove causation)
- Panger v. Duluth, W. & P. Ry. Co., 490 F.2d 1112 (8th Cir. 1974) (disciplinary evidence may be admissible to prove control/ownership if proper foundation laid)