425 P.3d 669
Mont.2018Background
- Kenneth Daley sued Burlington Northern Santa Fe Railway (BN/BNSF) under FELA and the Locomotive Inspection Act for asbestos exposure at the Somers tie-treatment plant (worked there 1967–1986). After a seven-day jury trial in July 2017, the jury found for BN. Daley appealed adverse rulings and post-trial denials of default or new trial motions premised on alleged misconduct and discovery abuses.
- Pretrial motions in limine excluded certain evidence BN argued was prejudicial or remote (e.g., BN’s 2004 Form 10-K language about asbestos claims; letters describing OSHA violations at other BN facilities; some references to co-worker lawsuits and illnesses).
- The district court admitted extensive Somers-specific asbestos and historical industry evidence, and allowed testimony about workplace exposure by several witnesses and experts, while excluding certain other-material evidence as remote or cumulative under Rules 403, 404(b), and 406.
- Daley attempted late additions to the witness list (Richard Funk) after an emergency continuance; the court excluded Funk because he was not on the initial pretrial order and BN lacked opportunity to prepare.
- Daley filed a late motion to compel broad discovery about other BN employee asbestos claims after discovery closed; the district court denied the motion as untimely and sanctioned Daley under M. R. Civ. P. 37(a)(5)(B). Daley appeals evidentiary exclusions, asserted trial misconduct by BN counsel, and the denial of discovery relief/default judgment.
Issues
| Issue | Daley's Argument | BN's Argument | Held |
|---|---|---|---|
| Exclusion of BN 2004 Form 10-K (reference to prior asbestos claims / "profits over safety" theory) | Form 10-K was admissible (admissions/hearsay exceptions) and BN later argued facts contradicted by the excluded Form | Form was remote, prejudicial, and excluded under Rule 403; similar evidence was nonetheless admitted | No abuse of discretion; court could interpret and extend pretrial rulings to exclude the Form; similar exposure evidence admitted elsewhere |
| Exclusion of letters re: OSHA violations at other BN facilities (habit/party admission) | Letters showed pattern/habit and rebutted BN’s opening safety-theme; BN opened the door | Incidents were remote and irrelevant to Somers asbestos exposure; 403 exclusion appropriate | No abuse of discretion; remoteness and prejudice supported exclusion; Daley failed to preserve any "opened the door" objection timely |
| Reference to coworkers Wang/Fuller lawsuits & illnesses | BN’s opening mentioning their "claims" opened the door and prejudiced Daley by implying co-worker claims were false | District court admitted their deposition exposure testimony but excluded illness/claims as irrelevant; passing mention of "claims" harmless | No abuse; court reasonably limited scope—admitted exposure testimony, excluded remote/irrelevant claim/illness evidence |
| Exclusion of late witness Richard Funk | Funk was known and discoverable; exclusion was hyper‑technical and unfair | Funk not listed on initial pretrial order; BN lacked contact info; unfair surprise | No abuse; court appropriately enforced pretrial order and denied adding witness after continuance |
| Alleged trial misconduct (closing arguments, personalization of BN witnesses, attacks on experts) | BN repeatedly made inflammatory, improper arguments (akin to Anderson/Cooper) undermining fairness | BN’s statements were isolated or permissible attacks on credibility; district court sustained objections when appropriate | Some BN comments were improper (e.g., sympathy for BN expert) but not pervasive; no reversible misconduct—no loss of confidence in verdict |
| Denial of motion to compel broad discovery of other BN asbestos claims | BN withheld responsive information; motion timely given supplemental discovery and late production; discovery misconduct warranted sanctions or default | Daley’s motion was filed long after discovery closed, lacked meaningful conferral, and was overbroad; 37 factors weighed against relief | No abuse in denying compel; motion was untimely and not made in good faith; default not warranted |
| Award of attorney fees to BN under M. R. Civ. P. 37(a)(5)(B) | (argued in concurrence) BN’s supplemental production shows BN had not timely produced and both parties partially at fault; fees unfair | District court found motion not substantially justified and not excusable; rule mandates fees absent justification | Majority: fee award within district court discretion; Concurrence (Sandefur, J.) would reverse fee award as an abuse of discretion |
Key Cases Cited
- Puccinelli v. Puccinelli, 364 Mont. 235 (evidentiary rulings reviewed for abuse of discretion)
- Spotted Horse v. BNSF Ry. Co., 379 Mont. 314 (discovery/sanctions abuse-of-discretion standard; intolerance for discovery abuse)
- Faulconbridge v. State, 333 Mont. 186 (other-accident evidence admissible only if substantially similar and not too remote)
- Anderson v. BNSF Ry., 380 Mont. 319 (reversible trial-counsel misconduct; pervasive improper argument can require new trial)
- Cooper v. Hanson, 356 Mont. 309 (improper closing argument prejudicing plaintiff)
- In re Estate of Harmon, 360 Mont. 150 (discovery disputes must be pursued diligently; failure to timely compel has consequences)