387 F. Supp. 3d 1078
D. Mont.2019Background
- Plaintiff Zachary Wooten, a BNSF employee, was terminated on September 29, 2015 after reporting an on-the-job injury and sued under FELA, the LIA, and the FRSA alleging retaliatory discharge.
- After an eleven-day jury trial, the jury found for Wooten on FELA and FRSA (not LIA), assigned Wooten 25% contributory negligence, awarded $17,570 back pay (reduced to $13,177.50), $1,407,978 (present value) in front pay, $500,000 for emotional distress, and $249,999 punitive damages.
- BNSF moved post-trial for judgment as a matter of law, a new trial, to alter the judgment, and remittitur challenging liability, FRSA elements, jury instructions, evidentiary rulings, and damages. Wooten moved to amend judgment (seeking reallocation to FRSA back pay, prejudgment interest on emotional damages, and a tax gross-up) and for attorneys’ fees, non-taxable costs, and expert fees under 49 U.S.C. § 20109.
- The court applied Ninth Circuit FRSA law (Rookaird, Frost) and concluded the jury verdict on FRSA was supported by substantial evidence: BNSF knew or suspected Wooten engaged in protected activity, the protected activity was a contributing factor, and BNSF failed to prove the "same action" defense by clear and convincing evidence.
- The court denied BNSF’s Rule 50/59 motions and remittitur requests, granted Wooten’s motion in part (awarding prejudgment interest on emotional-distress damages) and awarded attorneys’ fees, non-taxable expenses, expert fees, and taxed costs with specific reductions and adjustments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether JMOL on FRSA liability warranted (knowledge; contributing factor) | Wooten argued BNSF knew/suspected he reported an injury in good faith and retaliated; evidence (decision-makers biased, inconsistent BNSF explanations) supports contributing factor | BNSF argued insufficient evidence decision-makers knew of good-faith injury report and no contributing factor; also asserted an honest-belief/same-action defense (would have fired anyway) | JMOL denied. Court found substantial evidence jury could conclude BNSF knew/suspected protected activity, contributing factor met, and same-action defense not proven by clear and convincing evidence |
| Whether new trial required for alleged trial structure/instruction errors (bifurcation, jury instructions) | Wooten defended combined trial and instructions as proper and consistent with Rookaird/Frost | BNSF claimed prejudice from non-bifurcation, improper instructions (e.g., honest-belief), and missing limiting/contextual instructions | New trial denied. Court exercised discretion to decline bifurcation; instructions followed Ninth Circuit guidance and did not misstate law |
| Whether damages (front pay, emotional distress, punitive) were excessive or unsupported | Wooten maintained front pay, emotional damages, and punitive awards were supported by expert testimony, witness credibility, hostility between parties, and applicable standards | BNSF argued awards were speculative/unsupported, excessive, or required different punitive standard (Kolstad) | Remittitur/new trial denied. Court treated front pay as equitable (awarded as advisory to the jury), upheld emotional distress award and punitive damages under Smith‑style standard rather than Kolstad, and awarded prejudgment interest on emotional damages |
| Entitlement and amount of attorneys’ fees, non-taxable costs, expert fees, and taxable costs under FRSA | Wooten sought fees and costs (lodestar plus expenses) reflecting specialized FRSA litigation; provided hourly rates and detailed time/cost records | BNSF challenged rates, hours (commingled FELA work), specific line items, and certain non-taxable and taxable costs | Court awarded attorneys’ fees of $657,107 (after rate-setting, specific hour deletions, and 10% haircut), expenses $81,713.22, expert fees $233,993.70, and taxed costs $23,308.94 with itemized reductions |
Key Cases Cited
- Pavao v. Pagay, 307 F.3d 915 (9th Cir.) (JMOL standard and deference to jury verdict)
- First Nat'l Mortg. Co. v. Federal Realty Inv. Trust, 631 F.3d 1058 (9th Cir.) (verdict upheld if supported by substantial evidence)
- Rookaird v. BNSF Ry. Co., 908 F.3d 451 (9th Cir.) (FRSA two-stage framework; prima facie elements)
- Frost v. BNSF Ry. Co., 914 F.3d 1189 (9th Cir.) (clarifying contributing-factor standard under FRSA)
- CSX Transp., Inc. v. McBride, 564 U.S. 685 (U.S.) (relation of statutory duties to FELA negligence per se concept)
- Chauffeurs, Teamsters & Helpers, Local No. 391 v. Terry, 494 U.S. 558 (U.S.) (when monetary relief may be equitable)
- Bayer v. Neiman Marcus Group, Inc., 861 F.3d 853 (9th Cir.) (when monetary relief is equitable versus legal)
- Traxler v. Multnomah Cnty., 596 F.3d 1007 (9th Cir.) (front pay as alternative to reinstatement)
- Kolstad v. American Dental Ass'n, 527 U.S. 526 (U.S.) (punitive-damages standard under Title VII; court considered applicability)
- Worcester v. Springfield Terminal Ry. Co., 827 F.3d 179 (1st Cir.) (FRSA punitive damages standard discussion)
- Camacho v. Bridgeport Financial, Inc., 523 F.3d 973 (9th Cir.) (lodestar method for attorney fees)
- Van Gerwen v. Guarantee Mut. Life Co., 214 F.3d 1041 (9th Cir.) (lodestar presumption and when adjustments allowed)
- Hensley v. Eckerhart, 461 U.S. 424 (U.S.) (hours reasonably expended; exclusion of excessive or redundant hours)
- Fox v. Vice, 563 U.S. 826 (U.S.) (district courts need not be ‘green-eyeshade accountants’; rough justice in fee awards)
- Passantino v. Johnson & Johnson Consumer Prods., 212 F.3d 493 (9th Cir.) (emotional-distress damages need not be supported by objective evidence)