Corrie Burckhard v. BNSF Railway Company, 837 F.3d 848

Background

Two BNSF employees (Burckhard and Mack) were killed when a Coach America van (driven by Rennick) transporting them after relief was struck by a drunk driver during a ~40-mile trip in Montana.
Plaintiffs (personal representatives) sued BNSF under FELA, alleging (1) negligent operation by BNSF’s agent Rennick, (2) negligent training by BNSF/Coach America, and (3) failure to follow defensive driving rules.
Trial evidence included Rennick’s post-crash statement, state trooper investigation, vehicle video and ‘‘black box’’ data, Coach America training records, and BNSF’s curfew policy forbidding deadheading on public roads 10:00 p.m.–4:00 a.m.
District court denied BNSF’s pre-verdict JMOL motions; jury returned verdict for plaintiffs. BNSF did not renew JMOL under Rule 50(b).
Post-judgment, BNSF moved under Rule 59(e) for an offset of the verdict by $600,000 paid earlier under an Off Track Vehicle Accident Benefits agreement; the district court denied the motion as collateral to the merits.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
JMOL — foreseeability of drunk-driver risk	Evidence (curfew policy, testimony, video) supported foreseeability for jury	Drunk driver conduct not reasonably foreseeable as a matter of law; JMOL should have been granted	Denied — foreseeability is a fact question; BNSF waived sufficiency challenge by not renewing Rule 50(b)
JMOL — need for expert testimony on standard of care	Lay testimony and common-sense issues sufficed to submit negligence to jury	Plaintiffs needed expert proof of railroad standard for crew calls/transportation; JMOL should have been granted	Denied and waived — requirement for expert is fact-specific; BNSF failed to preserve by not renewing Rule 50(b) (concurrence sees mixed question but affirms result)
Exclusion of evidence that decedents could choose train vs. van	Evidence of lack of coercion was minimal; plaintiffs argued BNSF forced risky transport	Evidence would show decedents had a choice and reduce BNSF’s culpability	Admission exclusion affirmed — district court acted within Rule 403 discretion to avoid injecting irrelevant defenses/confusion
Admission of BNSF curfew policy	Policy shows BNSF knew nighttime road transport carried risks; probative on foreseeability	Policy concerns deadheading only; irrelevant and prejudicial	Admission affirmed — policy was relevant to BNSF’s knowledge of nighttime risks and not unduly prejudicial
Exclusion of trooper (Sergeant Kent) opinion that Rennick acted reasonably	Plaintiffs relied on other witnesses; contested that trooper’s opinion would be cumulative	Trooper’s lay opinion on ultimate issue should be allowed; helpful to defense	Affirmed exclusion — court reasonably limited lay opinion, allowed qualified experts, and excluded cumulative evidence under Rule 403
Rule 59(e) motion for offset of prior $600,000 payment	Offset not part of FELA merits trial; agreement collateral and raised ambiguity about word "may"	Agreement permitted railroad to apply payment as offset against recovery; court should amend judgment	Denied — district court did not abuse discretion; setoff issue collateral to merits and could spawn further litigation over contract language

Key Cases Cited

CSX Transp., Inc. v. McBride, 564 U.S. 685 (Sup. Ct.) (foreseeability required under FELA to define employer duties)
Ludlow v. BNSF Ry. Co., 788 F.3d 794 (8th Cir.) (requirement to renew JMOL under Rule 50(b) to preserve sufficiency challenges)
Hyundai Motor Fin. Co. v. McKay Motors I, LLC, 574 F.3d 637 (8th Cir.) (standard of review for JMOL)
S & A Farms, Inc. v. Farm.com, 678 F.3d 949 (8th Cir.) (when absence of expert testimony can render claim legally insufficient)
Chism v. CNH Am. LLC, 638 F.3d 637 (8th Cir.) (abuse-of-discretion standard for evidentiary rulings and reversal threshold)
United States v. Metro. St. Louis Sewer Dist., 440 F.3d 930 (8th Cir.) (standard for Rule 59(e) abuse of discretion review)