Walker v. BNSF Railway Co., 306 Neb. 559

Theresa Walker, a BNSF employee, was injured when a Taylor "Big Red" forklift tipped while lifting a locomotive traction motor using a BNSF‑made metal pallet attachment.
The attachment extended the load more than 64–70 inches from the mast and potentially shifted the forklift’s center of gravity and capacity.
After the accident BNSF investigated and contacted the manufacturer (Taylor); BNSF personnel (Bridges) later testified in deposition that using the attachment with G.E. motors could exceed the forklift’s capacity.
At trial the district court excluded testimony about BNSF’s postaccident conclusions (Bridges’ statements) as hearsay and/or subsequent remedial measures under Neb. Rev. Stat. § 27‑407; Walker preserved the deposition transcript as an offer of proof.
Walker presented expert testimony that the modified forklift was overloaded; BNSF presented eyewitness testimony that Walker operated the forklift improperly. The jury returned a verdict for BNSF.
On appeal Walker argued exclusion of Bridges’ testimony was erroneous and prejudiced her; the Nebraska Supreme Court affirmed, finding any error non‑prejudicial.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility — hearsay / corporate admission	Bridges’ testimony about BNSF’s belief is an admission by a party-opponent and not hearsay.	Testimony merely repeats the manufacturer’s statements and is inadmissible hearsay.	Court affirmed judgment; although the district court excluded the testimony, any error was not unfairly prejudicial.
Admissibility — subsequent remedial measures (§ 27‑407)	Postaccident conclusions were investigatory (not remedial) and thus admissible.	Postinvestigation conclusions are part of subsequent remedial measures and inadmissible.	Court concluded exclusion did not unfairly prejudice Walker; concurrence would have found exclusion erroneous but harmless.
Prejudice / reversal standard	Exclusion deprived Walker of critical evidence and warrants new trial.	Excluded testimony duplicated other evidence; exclusion was harmless.	Exclusion (even if erroneous) was harmless because Walker presented similar evidence and there was ample contrary evidence; affirm.

O’Brien v. Cessna Aircraft Co., 298 Neb. 109, 903 N.W.2d 432 (2017) (standard of review for evidentiary rulings and harmless‑error prejudice rule)
Ficke v. Wolken, 291 Neb. 482, 868 N.W.2d 305 (2015) (party admissions by corporate designee are not hearsay)
Steinhausen v. HomeServices of Neb., 289 Neb. 927, 857 N.W.2d 816 (2015) (exclusion not prejudicial where same information is otherwise in evidence)
Dusenbery v. United States, 534 U.S. 161 (2002) (policy underlying Rule 407 aims to encourage remedial measures)
Rocky Mountain Helicopters v. Bell Helicopters, 805 F.2d 907 (10th Cir. 1986) (distinguishing postaccident investigations from remedial measures; investigations often admissible)
Westmoreland v. CBS Inc., 601 F. Supp. 66 (S.D.N.Y. 1984) (postaccident investigative reports may be among the best evidence and are not necessarily remedial)