*1 32
PHILLIP BOUDE, R. Aрpellant, Plaintiff and UNION PACIFIC RAILROAD COMPANY, Appellee.
Defendant No. DA 11-0412. February 15, Submitted on Briefs 2012. 2,May Decided 2012.
For John Hart, P.C., W. Rossbach Missoula; John T. Papa, Neilson, Callis, Todd A. Papa, Hale, Szewczyk & P.C., Danzinger, City, Granite Illinois. Appellee: ven,
For J. Daniel Ho Berg, Sara S. Daniel J. Auerbach, Browning, Kaleczyc, Berry Hoven, P.C., & Helena.
JUSTICE COTTER delivered the Opinion of the Court. Employers’ filed a Federal Philip August On (FELA) Pacific Union against employer, claim Liability Act a work-related asserting experienced that he Company, Railroad negligence. Following the Railroad’s July due to injury on Court, ruled District in the First Judicial seven-day trial *2 remаnd. reverse and appeals. Boude We of Union Pacific. favor ISSUE' multiple errors committed the District Court Boude submits ¶2 issue is single dispositive conclude that during the trial. We in evidence abused its discretion the District Court whether Law Board’s employment of and Public of Boude’s termination (PLB) affirming his termination. decision AND PROCEDURAL BACKGROUND
FACTUAL May 2005. He for Union Pacific began working ¶3 assigned months and was training conductor within a few completed 29, 2006, July On duties on various Union Pacific trains. conductor City Coffeyville, Kansas grain called to take a train from Boude was was Paul Belcher. As engineer assignment The train on that Kansas. destination, Boude and Belcher to its grain proceeding train was engines required by dispatch that their two train were were notified (the train”) up steep and over a hill. help push another train “stalled grain engines, cars from their They were instructed to disconnect and connect engines the stalled coal train position their behind them, engineer at the front of the stalled train to allowing thus by Boude and Belcher. This is called the engines provided control the maneuver, During the execution of this pusher/helper maneuver. train, throwing stalled engines Boude claims their collidеd with the engine his Boude from his seat into the dash and windshield of resulting injury. day neck stiffness within a began experiencing Boude claims he several pain the incident followed headaches and arm over multiple doctors for the
following days. By October he had seen he notified his direct pain and discomfort. Sometime October Burrows, missing that he would superiors, Tracy Brown and Alvin managers injury that his injury. due to a neck He assured his work 15, 2006, However, he filed a was not work-related. on November Pacific for the this incident to Union personal injury reporting form time, requiring Union Pacific rules despite being first аware of By the time Boude injuries promptly. employees work-related the incident he reported employer already to his had contacted a lawyer seeking regarding advice a claim. Following Boude’s report, questioned incident the Railroad
whether Boude was truthful his account of the incident and his therefore, injury; claim of Union Pacific disciplinary hearing held a which Boude attended with his union representative. Subsequently, on 6,2006, December the Railroad terminated Boude’s based delay on his in reporting injuries, and Union Pacific’s belief that Boude had lied his managers about the incident. Boude appealed his PLB, body union, termination to the up made railroad and neutral members. The PLB is an “arbitral tribunal that reviews the outcome investigative of a railroad’s hearing to ascertain whether the result is consonant with the terms of the CBA between the railroad and its union employees.” Chicago Ry. Co., 507, 513 Kulavic v. & Ill. M. 1 F.3d (7th 1993). Cir. On PLB, December relying exclusively presented
evidence at hearing the Railroad’s and not on an independent investigation, affirmed the Railroad’s decision to terminate Boude. The PLB cited presented hearing injury Boude’s could previous injuries be attributed to sustained *3 by prior Boude with Union Pacific. The PLB concluded that Boude’s promptly notify failure to the Railroad deprived Union Pacific of the opportunity to conduct a meaningful investigation of the incident and determine whether the Railroad needed any potential “to correct workplace hazard so prevent as to injury to other employees persons.” or PLB The ruled that Boude’s failure timely to act in a major manner “must be viewed as violation of necessary conduct in an employee-employer relationship as concerns such matters.” It upheld therefore the Railroad’s termination decision. Boude did not appeal this decision. 9, 2007, On August Boude claim
¶7 filed a FELA against Union asserting Pacific negligently it failed provide him with a safe and, result, work environment injured. as a he was September 2009, In Boude moved to have the District Court exclude from evidence reference to his Pacific, termination from Union including but not limited to the PLB report affirming his termination. In its Order filed 2,2009, Court, November the District single statement, in a ruled that the evidence of Boude’s termination and the reason for the termination “may relevant”; therefore, the court denied his motion in limine. On January 13, 2011, Boude moved for reconsideration of the District Court’s ruling denying his motion in limine. The District Court denied into evidence admitted PLB was motion to reconsider. Brown, Manager Tracy examination during the direct by worked Pacific subdivisions for the Union Practices Operating of 2006. in the summer Boude throughout periodically arguments opening Beginning with
¶8 dishonesty ofBoude’stermination trial, heard evidence from Boude’s termination the incident. timely report failing and for PLB fifteen times. The no fewer than mentioned employment was during their exhibits, prоvided to other was report, along with Pacific was ultimately ruled that Union deliberations. appeals. negligent. Boude OF REVIEW
STANDARD evidentiary in limine is an ruling on a motion A court’s district ¶9 State v. of discretion. for an abuse that this Court reviews ruling 260 P.3d Edwards, MT
DISCUSSION admitting evidence its discretion in Did the District Court abuse affirming Law Board decision and the Public Boude’s termination of his termination? irrelevant to of his termination was argues that evidence an unsafe work negligently provided whether the Railroad Additionally, Boude asserts that employees. for its environment hearsay, unduly PLB inadmissible written decision of the him, untrustworthy, confusing jury. for the Union prejudicial disagrees these assertions of error. Pacific (Rule 801) “hearsay” “a defines as Montana Rule of Evidence 801 statement, testifying the declarant while other than one made the truth ofthe matter hearing, prove the trial or offered in evidence (2) “(1) or is an oral or written assertion asserted.” “Statement” person if it intended as person, conduct of a is nonverbal In the person A is “a who makes a statement.” assertion.” “declarant” the “statement” is case, the PLB is the “declarant” and context of this grounds affirming PLB Boude’s termination the written *4 to ruling PLB was admitted in ordеr dishonesty delay. and As the clearly dishonesty delay, and it was affirm Boude’s termination such, matter asserted.” As we the truth of the presented “prove to unless one of hearsay and inadmissible the PLB decision was conclude applied. in Rule 803 exceptions 803(8) exception provides Rule Pacific maintains that Union hearsay allowing rule admission of the PLB report. This Rule states: following by hearsay rule,
The are not excluded even though the declarant is available as a witness:
(8) Public and Reports. Records To the extent not otherwise provided records, paragraph, reports, statements, this or data compilations any form of a public agency setting officeor forth its regularly regularly activities, conducted and recorded or pursuant matters duty imposed by observed law and as to which there duty report, was a or factual findings resulting from an investigation pursuant made to authority granted by law. (i) are following not within this exception hearsay to the rule: investigative by reports police and other law enforcement (ii) personnel; investigative reports prepared by or for a government, public office, agency or an when offered it in a (iii) party; case in which it is a findings factual offered (iv) government cases; findings criminal factual resulting from special investigation case, particular complaint, incident; of a or (v) any matter as to which the sources ofinformation or other circumstances indicate lack of trustworthiness.
Union Pacific submits that the PLB “public decision was a record” and as such was admissible. Boude counters that the PLB actually falls within Rule
803(8)(iv) (v) and is therefore not within the exceptions to the 803(8). hearsay rule listed in the first sentence of Rule He asserts that the PLB decision contained findings gleaned factual from Union Pacific’s special investigation concerning case, his and was not the result ofan investigation “made pursuant authority granted by law.” He further argues that the report’s findings are inherently untrustworthy because the testimony disciplinary at the hearing was “unsworn, uncounseled and subject rules of evidence or discovery.” support argument To Boude relies heavily Sleigh Jenny (Ore. Centres, 1999).
Craig Weight Inc., Loss 984 P.2d App. Sleigh 803(8)(c) interprets Oregon’s Evidence provides: Rule which following are not by Oregon’s excluded Hearsay Rule: (8)Records, reports, compilations, any form, statements or data public agencies, offices or including federally recognized American Indian governments, tribal setting forth:
37 (c) against government and proceedings In civil actions and cases, resulting investigation criminal from an findings, in factual law, unless the sources of authority granted made pursuant indicate lack information or other circumstances trustworthiness. Rule to the first sentence of Montana provision,
This
while similar
803(8)(i)-
803(8),
to Montana Rule
provide
exceptions
does not
for the
However,
(v),
Sleigh does
distinguishable.
and therefore is somewhat
findings” resulting
“factual
prоposition
stand for the
that admissible
reports
law are limited to
investigation
pursuant
from an
conducted
investigator or
upon personal knowledge
upon
of the
verifiable
based
otherwise,
as
opinion;
findings
facts rather than
such
are inadmissible
words,
In
“factual
hearsay. Sleigh,
299, 303, 763, P.3d in a manner relevant to this case. In 352 Mont. 216 Stevenson, began working Stevenson at Felco 1995 and was fired a instituted April allegedly failing quota to meet cold-call Stevenson, claim manager. his new 5-6. Stevenson filed a with ¶¶ (DOLI) Industry Rights & Human Department Montana of Labor (HRB). against He claimed Felco had discriminated him based Bureau investigator The HRB interviewed several of Stevenson’s upon age. examiner pertinent co-workers and reviewed documents. The concluding age that subsequently ruled in favor of Felco no Stevenson, discrimination occurred. 7.¶ subsequently brought wrongful discharge age Stevenson limine, He against
discrimination actiоn Felco. filed a motion seeking preclude presenting allegations Felco from comments and included in investigator at trial that were submitted to the HRB the HRB he did not that the HRB Report, specifically request but Stevenson, trial, During Felco Report be excluded. 9-14. ¶¶ Report objections. introduced the HRB into evidence over Stevenson’s and remanded the returned a verdict for Felco. We reversed HRB ground case on the that the district court erred Report, “patently highly which we concluded was inadmissible and Stevenson, prejudicial.” 47. ¶ 803(8)(iv) “specifically observed in Stevenson that Rule We findings finding
excludes factual such as the reasonable cause directly investigation results from an of a particular [HRB] which Stevenson, 30, complaint citing City of discrimination.” Crockett v. ¶ (1988). Billings, 761 P.2d We noted that reports by governmental agencies, issued because of their “official” nature, may carry weight jurors. well inordinate in the minds of Stevenson, though 43. We concluded that even Stevenson had failed ¶ order, comply pretrial patently the court could not “admit substantially prejudicial inadmissible and evidence” as a sanction. Stevenson, us, In the matter before heard dishоnesty officially Boude was fired for and that the PLB affirmed his *6 HRB, investigative findings termination. Like the of the the decision of the PLB resulted from the investigation particular complaint, of a “patently and was and highly prejudicial.” interpret inadmissible We 803(8)(iv) Rule preclude the admission the PLB report of in the case hearsay before us as inadmissible prejudicial. and admitting The error in the PLB is compounded by ¶19 the fact that Boude’s termination and the PLB completely decision were immaterial and irrelevant to the question of whether the Railroad negligently caused Boude’s claimed injuries. Evidence which is not relevant is not M. admissible. R. Evid. 402. Additionally, the PLB arguably order would
¶20 be inadmissible as 803(8)(v), well under Rule in that it lacks the trustworthiness attendant proceedings conducted a neutral arbiter. At the disciplinary hearing, represented by counsel, Boude was not he did not subpoena power, Railroad, have and employer, the acted as both PLB, judge jury. turn, and simply reviewed the Railroad’s disciplinary upheld Kulavic, decision and it. As noted in PLB procedures protective “are less of guarantees constitutional than are procedures employed Kulavic, the United States courts.” 1 F.3d at 518. More to the point, they wholly in that are conducted in a environment, railroad-controlled PLB proceedings guarantees lack of Thus, trustworthiness. the evidence was inadmissible on three separate grounds. stand-alone argues Railroad that should this Court conclude that the
District Court abused evidence, its discretion in this error was harmless the face of substantial admissible evidence that supported jury’s finding that the negligent. Railroad was not We concede that there was substantial support evidence to verdict; however, there was also sufficient evidence from which the jury could have concluded that the Railroad was in fact negligent and injury caused to Boude. The problem is that we cannot know how and irrelevant evidence had impact “highly prejudicial” much of an clearly of inadmissible jury. impact Where the members outcome-determinative, only we conclude the conceivably is Pacificorp Dep’t. course is reversal. As we noted appropriate of 914, 920, rights Revenue, P.2d if substantial prejudicial error appropriate. reversal is “The test prejudiced, are possibility there is a reasonаble requiring reversal is whether contributed to the verdict.” might inadmissible evidence have Boude’s claim of Finally, disputed because Union Pacific evidence that Boude submitted an injury, it was entitled introduce he made dishonest untimely report injury argue management statements in connection with his claim. Such to Union Pacific’s contention that Boude evidence was relevant to recover for a exaggerated attempting the collision was injury, that Boude preexisting and was relevant its claim It also credible. This evidence was therefore admissible. will However, admissible on retrial. evidence of Boude’s termination from PLB and the will not be admissible.
CONCLUSION reasons, denial foregoing For the we reverse District Court’s PLB pertaining of Boude’s motion in limine to his termination and the ruling, proceedings and remand for further in accordance with this Opinion. McGRATH,
CHIEF JUSTICE JUSTICES WHEAT and RICE *7 concur. BAKER, dissenting.
JUSTICE
803(8)
agree
I
that
M. R.
admit the
it was error under
Evid.
¶24
but,
report
thorough
PLB
into evidence at trial
based on a
review of
record,
I would conclude that the District Court did not abuse its
admitting
discretion in
evidence of Boude’s termination and that
proving prejudice
Boude has not met his burden of
from admission of
report.
analysis
begin by acknоwledging
scope
should
the limited
of
¶25
in a civil case. We
appellate
an
court’s review of
verdict
“
greatest
that
‘must exercise the
self-
repeatedly
recognized
have
we
constitutionally mandated
interfering
processes
restraint
in
with the
”
Morton,
62, 94,
225,
MT
of
decision.’ Seltzer v.
2007
336 Mont.
¶
Am., Inc.,
136,
MT
(quoting Kneeland
complaining party [is] shown.” Green 181 Mont. (1979). 446, 451 words, predicated P.2d In other “a reversal cannot be evidence, the evidence in upon question an error admission of where A.N., In re 2000 was not of such character to have affected the result.” Ditzel, Mason v. 35, 55, 237, 427; MT 298 Mont. 995 P2d 255 Mont. ¶ Lee, Lauman v 364, 371, 707, (1992); 84, 90, 842 P.2d 712 192 Mont. (1981). 830, 626 P.2d 834 FELA Liability premised negligence. in a claim is on
threshold required prove issue Boude was was that Union Pacific him duty provide reasonably breached its with a workplace. safe require employer highest degree “FELA does not to exercise the care, only degree ordinary, but the same of care as an reasonable person would exеrcise in similar circumstances.” Martinez v. Union (8th 1996). Co., Pac. R.R. 82 F.3d 228 Cir. Under the FELA standard, causation if the duty, Railroad breached its it is liable if its negligence “played part-no bringing matter how small-in about Co., BNSF Ry. Weber v. injury.” MT ¶ P.3d 984. The in this case answered “no” to the question threshold form, special negligent, verdict whether the Union Pacific was and thus did not questions reaching answer other its final verdict. Although the Court report discusses without distinction the PLB termination, important
and Boude’s it is to evaluate the two items of separately admissibility since their governed is different rules of evidence. Employment
Boude’s Termination from terminated The Union Pacific Boude’s employment in this case July months, because he did not 29 incident for over four violation of the railroad’s strict policies prompt reporting injuries. Tracy Brown, manager time, Union Pacific’s of train at operations testified that when Boude first contacted him in October about his pain, neck injury. Boude assured him it was not a work-related Approximately later, three weeks Boude called him Brown advise injuries attempted were fact work-related. Brown to set a meeting complete with Boude to review the incident with him and required paperwork, him put but off. Boude did not meet with Brown, but later filed the incident form help from an attorney. trial, object testimony Boude did not to this 22)-that (Opinion, concedes-as does the Court his “dishonest *8 management” statements were relevant and admissible at trial.
41
limine, however,
that evidence of his
argued in his motion
Boude
it was not
dishonesty
termination for that
should be excluded because
the amount of
only
confuse the
as to
relevant
“would
On
earnings.
appeal,
his claim for lost future
damages,”
particular
not, as a
that the fact of termination did
again emphasizes
“only
law,
damages
and the evidence
quantum
matter of
affect the
damages.” (Emphasis
the measure
confused the
as to
ofPlaintiffs
added.)
or not
A district court has broad discretion
determine whether
Hardman,
MT
evidence is relevant. State v.
2012
361,
generally
in FELA
held that a
its decision in
Martinez did
create
firm rule that a railroad
employee’s
employee’s
termination could never be admissible in the
(8th
Co.,
Wright
FELA case.
v. Ark. & Mo. R.R.
574 F.3d
618-19
2009).
distinguished
Cir.
The court
upheld
Martinez and
the admission
plaintiffs
termination where it was offered to counter the
impression
injuries
only
that his
were the
longer
reason he no
worked
Here,
Wright,
given
testimony
for the railroad.
pain
substantially
that has
and permanently
ability
affected his
engage
daily living
activities. Boude
he
testified
has been unable to
work
of his neck
because
condition and that he had intended to work
for the
until he
eligibility
age
railroad
reached full retirement
Wright,
Like the court in
I would conclude that the district court did
not abuse its discrеtion in
evidence of termination where to
*9
the
that
impression
physical
exclude it could “leave the
with
only
longer
[Boude]
the
reason
no
limitations from the accident were
Wright,
constituted to which 803(8) the PLB apply. emphasizes M. R. Evid. did not The Court that the whether Union Pacific was report questions was not relevant to negligent negligent performance helper/pusher ofthe whether 19.) injury very It is this issue (Oрinion, maneuver caused to Boude. determining on which we should focus in whether admission of the report prejudiced rights report Boude’s substantial at trial. The went only delay reporting justified to whether Boude’s the incident termination timely he Union policies because violated Pacific’sstrict on or reporting. report finding contained no conclusion that Boude “dishonest,” delay “wrongly was did conclude that his in reporting but deprived timely investigation” the Carrier of of the incident and the determine ability workplace need to correct hazards. The PLB major therefore сoncluded that Boude’s action was “a violation necessary conduct in an employee-employer relationship as concerns dispute relevancy delay such matters.” Boude did not of his reporting testimony and there was considerable at trial about the delay. reasons for the Boude testified he was afraid to report injury his employees based on a railroad that policy allowed to be fired for so “breaking fingernail,” much as a but he was contradicted the other employees day, rejected three railroad on site that eaсh of whom this only thing they notion stated the had to be afraid of failure to was injury timely in a manner. respect With to the question threshold whether the railroad was negligent by failing provide reasonably a workplace, safe Belcher, engineer evidence from Paul in which locomotive riding, theory Boude was corroborated Boude’s that “jolt” there was a from the slack action that was “one of the more severe” run-ins he had experienced. However, he testified that Boude never made contact with the windshield and complained any pain never to Belchеr of or injury day until the date of his last of work in October 2006. Most of testimony negligence issue of centered on whether the engineers training had sufficient the pusher/helper on maneuver and on whether the personnel operating the lead locomotive had adequately day. communicated with Belcher on the maneuver that All employees three of the other railroad involved in the “run-in” testified day unsafe. that was they procedure did not think honesty question called into that Boude’s was The record shows contradicting his claim that the significant a amount of evidence None of problems. caused his neck question action on the date in slack saying Boude site recalled employees other railroad the three pain. or in The medical anything day being injured about dating from spine injuries history that Boude had a of cervical showed by a car was rammed police officer. In police his work as in his neck as a he had discomfort during a car chase and suspect flight carry an obese woman down helping result. In he was right in the leg pulling and felt a of stairs when he twisted his diagnosed ultimately and he Pain in his neck resulted shoulder. disc, surgery. he undеrwent a herniated for which with degenerative preexisting from examination indicated a a 2004 earlier, age noting hospitalized he was condition even *10 x-rays deposit said to reveal an unusual calcium pain 12 for neck spine. in the cervical Pacific, Boude disclosed he at the Union applied When work disc on his medical form. Medical prior surgery
the
neck
and herniated
(near
report
time he made his
records from the Fall of 2006
the
Pacific)
reported
that Boude
on at
July 2006 incident to Union
show
pain symptoms
his neck
had started
least
two occasions that
2006 that
reported
regular
2005. He
to his
doctor October
November
months,”
ongoing
had
in the “last 10
pain
his neck stiffness and
been
July
and did not tell him
the
2006 incident. Boude also advised
about
neurologist
“working
bumpy
that
on a train on a
route since
the
return,”
apparently
but
did
symptoms
[November 2005] caused his
him,
phone
A
record from
July
not mention the
2006 incident to
either.
called
his doctor’s office on October
showed that Boude
back
could
caused
problem
later to ask if his back
“from last visit
history and disc disease to 2003
work. He was told that because of his
It
pointed
it
not be determined if work was the cause.” was
out
could
attorney prior
seeing
at trial that Boude had consulted with
ultimately concluded that
attorney-who
doctor-recommended
the slack-action incident.
pain
Boude’s neck
was related to
of a
considering
cases
the erroneous admission
prior
Our two
803(8)(c) have reached different
report in violation of Mont. R. Evid.
error,
report’s
admission was reversible
conclusions as to whether
Both
a
on the evidence and issues in the case.
cases involved
based
Stevenson,
Bureau. In
findings
Rights
from the Human
¶¶
by the District
43-44,
clearly prejudiced
that
was
we held
Stevenson
Court’s admission
finding
of the HRB’s
of “no reasonable cause to
age
believe
very
unlawful
discrimination occurred” in his case. The
issue before the
was whether the defendant had discriminated
against
Crockett,
Stevenson on the
age.
93-96,
basis of
In
234 Mont. at
(1988),
court,
case,
P.2d at 817-19
the district
in non-jury
had
plaintiff
found
a prima
established
facie case of
discrimination consistent with the HRB’s
cause” finding,
“reasonable
but concluded that
proved
legitimate
the defendant
non
discriminatory
failing
reason for
to hire the plaintiff. Under these
circumstances, we held that the District Court’s consideration
HRB’s
finding
reasonable cause
for the plaintiff
prejudicial
was not
error.
here, I would conclude that Boude has not carried his burden of proving prejudice to rights his substantial from the erroneous admission of the evidence. The PLB report, unlike erroneously Stevenson, admitted in did go very to the issue the (lack considering was but to a collateral issue timely ofBoude’s report) on which there concededly was other relevant evidence presentеd to jury. The evidence therefore was both cumulative and collateral to the central issue in the case-Union Pacific’s failure to provide a reasonably safe place to work-on which the testimony was overwhelmingly in the railroad’s safety favor. The of the workplace was not an issue honesty about which Boude’s particularly question, since Belcher significant corroborated his version of a run-in event. What did honesty draw his question into was Boude’s claim that the event caused him injury-an issue the never even reached and on which overwhelming there was evidence to the contrary. Whether admission of the PLB report affected damage Boude’s claim is irrelevant. *11 After hearing days testimony seven from sixteen different
witnesses, deliberated for less than two hours before returning an 11-1verdict for Union Pacific. On appeal, Boude failed any to make response to Union arguments that, Pacific’s based on the extensive presented trial, Boude was prejudiced by admission of the PLB report. Boude also failed to offer rebuttal to Union Pacific’s assertion that he could not have prejudiced been because the jury never reached the Quite issue of causation or damages. clearly, the PLB report admitted, should not have been and Union Pacific did not need the evidence to defend the light case. In of the record and the arguments presented appeal, however, I would conclude that Boude his substantial prejudice to proving carried his burden has not Seltzer, I report. admission the erroneous rights from Pacific. of Union in favor jury’s verdict therefore affirm would raised on the other issues not reach Although the Court does as well. those issues I affirm on appeal, would