Walker v. BNSF Railway Co. , 306 Neb. 559 ( 2020 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/31/2020 12:07 AM CDT
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
WALKER v. BNSF RAILWAY CO.
Cite as 306 Neb. 559
Teresa Walker, appellant, v. BNSF
Railway Company, a Delaware
corporation, appellee.
___ N.W.2d ___
Filed July 24, 2020. No. S-19-331.
1. Trial: Evidence: Appeal and Error. A trial court has the discretion to
determine the relevancy and admissibility of evidence, and such deter-
minations will not be disturbed on appeal unless they constitute an abuse
of that discretion.
2. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings
under the residual hearsay exception, an appellate court reviews for
clear error the factual findings underpinning a trial court’s hearsay rul-
ing and reviews de novo the court’s ultimate determination to admit
evidence over a hearsay objection or exclude evidence on hearsay
grounds.
3. Evidence: Appeal and Error. In a civil case, the admission or exclu-
sion of evidence is not reversible error unless it unfairly prejudiced a
substantial right of the complaining party.
4. Judgments: Words and Phrases: Appeal and Error. An abuse of
discretion, warranting reversal of a trial court’s evidentiary decision on
appeal, occurs when a trial court’s decision is based upon reasons that
are untenable or unreasonable or if its action is clearly against justice or
conscience, reason, and evidence.
5. Trial: Evidence: Testimony. When the information is, for the most part,
already in evidence from the testimony of witnesses, the exclusion of the
evidence is not prejudicial.
Appeal from the District Court for Scotts Bluff County:
Andrea D. Miller, Judge. Affirmed.
Kyle J. Long and Robert G. Pahlke, of Robert Pahlke Law
Group, for appellant.
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306 Nebraska Reports
WALKER v. BNSF RAILWAY CO.
Cite as 306 Neb. 559
Chad M. Knight and Nadia H. Patrick, of Knight, Nicastro
& MacKay, L.L.C., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Per Curiam.
NATURE OF CASE
Theresa Walker was injured while working for BNSF
Railway Co. (BNSF) when a forklift she was driving tipped
over while she was lifting a locomotive traction motor onto
a flatbed trailer. Walker filed this negligence action against
BNSF in the district court for Scotts Bluff County under the
Federal Employers’ Liability Act, 45 U.S.C. § 51 et seq. (2012).
After the exclusion of some of her evidence about which she
complains, the jury returned a verdict for BNSF. Because we
conclude the exclusion of evidence did not unfairly prejudice
Walker, we affirm.
FACTS
On November 4, 2010, Walker, a BNSF employee with fork-
lift training, was associated with the BNSF facility in Alliance,
Nebraska. She was injured when the forklift she was driving
tipped over while she was lifting a load. Walker alleged that
she drove the forklift into position; raised the traction motor
into the air; leveled the forks; and was waiting to move over
the final deposit point, when the forklift tipped forward. The
forklift was a Taylor Big Red forklift (Big Red) owned by
BNSF and manufactured to load, unload, and move locomotive
traction motors. A traction motor is a large electric motor on
each wheel of a locomotive.
Walker brought this action under the Federal Employers’
Liability Act, alleging BNSF was negligent. Specifically, she
alleged that the railroad was negligent because it (1) provided
equipment that was not in safe operating condition; (2) altered
and modified Big Red by affixing a metal pallet attachment;
(3) failed to remove Big Red from service; and (4) failed
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WALKER v. BNSF RAILWAY CO.
Cite as 306 Neb. 559
to provide reasonably safe tools, equipment, conditions, and
methods to do the work.
Big Red was manufactured by Taylor to load, unload, and
move locomotive traction motors with a capacity of 18,425
pounds at a 24-inch load center. After receipt from Taylor,
BNSF made and affixed a metal pallet attachment to Big Red,
which caused the forklift to carry traction motors more than 64
inches away from its mast and potentially changed the capacity
and dynamics of the forklift.
Walker had worked for BNSF since 1997. She received
training on forklift operations, and throughout her tenure at
BNSF, she underwent periodic recertification in forklift opera-
tion that included practical application and testing. Walker
had used Big Red to load traction motors onto truck beds on
a daily basis since 2009. Walker returned to work at BNSF
in September 2010 after a leave of absence, and she received
mandatory recertification training on forklift operations. She
also received training specific to Big Red.
Before July 2010, BNSF employees at the Alliance facil-
ity loaded only traction motors manufactured by EMD. In
the months before the injury, BNSF started loading a traction
motor manufactured by G.E. that was heavier. A traction motor
manufactured by EMD weighed approximately 11,800 pounds,
whereas a traction motor manufactured by G.E. weighed about
13,500 pounds. BNSF claimed that Walker had used Big Red
to transport the heavier G.E. motors before her injury. Walker
testified that she did not know if she had ever loaded a heavier
G.E. traction motor before her injury. She claimed that she was
not told of the weight difference between G.E. and EMD trac-
tion motors until after her injury.
A BNSF internal personal injury report completed shortly
after the incident concluded that Big Red was safe to oper-
ate and that the incident was the result of operator error by
Walker. Soon after that report was completed, BNSF’s repre-
sentatives contacted Big Red’s manufacturer, Taylor, to inquire
about continued use of the attachment. In response to BNSF’s
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WALKER v. BNSF RAILWAY CO.
Cite as 306 Neb. 559
inquiry, an unidentified employee of Taylor stated that Big
Red may become overloaded when it is used with the BNSF’s
metal pallet loaded with a G.E. traction motor.
Bret Bridges, BNSF’s designee for purposes of a Neb. Ct.
R. Disc. § 6-330(b)(6) (rev. 2016) deposition, testified regard-
ing the investigation following Walker’s injury. Bridges stated
that BNSF had determined that the forklift tipped over due
to operator error. As relevant to this appeal, Bridges was also
questioned at length about the metal pallet attachment and the
potential to exceed the capacity of Big Red. Bridges agreed
during his deposition that BNSF’s communications with Taylor
“caused the BNSF to determine” that transporting G.E. trac-
tion motors with the metal pallet “could exceed the capacity”
of Big Red, causing a risk of the forklift’s tipping. Below are
several relevant portions of Bridges’ deposition testimony,
which Walker claims are admissions relevant to her theory of
recovery and formed the basis for which she sought similar
testimony at trial. The deposition was received for the record
after the district court ruled that Bridges’ challenged testimony
would be excluded.
Q. Was the bracket found to be defective?
A. The bracket was not found to be defective. But if
it’s used improperly or out away from the mast, it does
change the center of gravity for the forklift.
Q. Did the BNSF find the bracket to be defective?
A. The bracket in and of itself is a piece of steel. But
if you use the furthest pick point away from the mast, you
can exceed the lifting capacity of the forklift.
....
Q. Would you agree that the installation of the bracket
on the Taylor Big Red forklift shifted the load center
away from the mast?
A. Yes.
Q. And agree that the bracket that was used on the
traction motor’s axles — agree that when the bracket was
used, the traction motor’s axle rested more than 70 inches
away from the mast?
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WALKER v. BNSF RAILWAY CO.
Cite as 306 Neb. 559
A. Yes; but I don’t know that the axle is the center of
gravity.
Q. Fair enough. And I’m not trying to say that it was;
I’m just trying to identify that the axle was there.
A. Based on measurements, yes.
Q. And do you agree that when the traction motor was
loaded in this position, the combined weight of the trac-
tion motor and the bracket exceeded the capacity of the
Taylor forklift?
A. Yes, that is my belief.
....
Q. And do you agree that when the bracket was used
in a position that the traction motor was lifted using the
bracket that a GE traction motor exceeded the capacity of
the forklift?
....
A. As we previously discussed, I do believe it exceeded
the lifting capacity.
Q. . . . And you agree that every time an employee
lifted a traction motor with that setup, he or she was
exceeding the capacity of the forklift.
....
A. Yes.
Q. . . . And so every time that an employee lifted a
traction motor, because they were exceeding the capacity,
there was risk of the forklift tipping.
[Objection.]
A. I think I have a two-part answer for that. I think
that, one, it depends upon height and pitch of the trac-
tion motor. So when the load is — the mast is all the
way against the forklift and it’s only this high . . . off the
ground, I don’t believe that it would tip the traction motor.
I think at a very elevated position with the forks tipped
forward that obviously it will tip the traction motor.
BNSF filed a motion in limine seeking, inter alia, to
exclude evidence of subsequent remedial measures to prove
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WALKER v. BNSF RAILWAY CO.
Cite as 306 Neb. 559
negligence, including “removal of the forklift and/or its rack
from service, and . . . use of a different forklift and/or rack”
following Walker’s accident. Walker stipulated to this exclu-
sion, and the district court granted the motion with respect to
evidence of subsequent remedial measures.
At trial, BNSF asserted that moving the GE traction motor
with the attachment did not exceed Big Red’s capacity. In its
opening statement, BNSF explained that “[y]ou have a 16,000
capacity forklift carrying about 13,000 pounds of weight and
you add in the weight of that metal pallet and you get maybe
up to 14,000 pounds of weight. You are a ton underneath the
load capacity of this forklift.” BNSF introduced evidence that
the forklift was not over its capacity at the outset of moving a
G.E. traction motor with the attachment.
Bridges, whose testimony is quoted above, was designated
as BNSF’s representative at trial. Several times at trial, Walker
attempted to elicit Bridges’ admissions that the combined
weight of the attachment and G.E. traction motor exceeded
Big Red’s capacity, causing an overloaded condition and risk
of tipping. Walker asked him, “And, would you agree that
BNSF and you as their corporate spokesman believe that the
bracket caused or the attachment caused the overload[?]”
BNSF objected, claiming that postinjury conversations with
Taylor and conclusions drawn therefrom by BNSF were inad-
missible evidence of subsequent remedial measures made to
remedy flaws or failures in the forklift operations. BNSF also
argued that Walker’s questions asked for hearsay, because
they were attempts to relay statements from the manufacturer
to BNSF and Bridges, all to the effect that BNSF had learned
from the manufacturer that the forklift was overloaded. In
response, Walker argued BNSF had ultimately concluded and
believed that the attachment caused the overload condition
and admitted to its understanding in the deposition of Bridges,
its designee. The court sustained BNSF’s objection. Walker
attempted to introduce evidence of BNSF’s postinvestiga-
tion conclusions regarding the overload issue several times,
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WALKER v. BNSF RAILWAY CO.
Cite as 306 Neb. 559
and the court continued to sustain BNSF’s objections. After
the district court had excluded Bridges’ testimony, the court
received the two volumes of the transcripts of Bridges’ deposi-
tions as an offer of proof.
Walker’s theory at trial was that BNSF had negligently
modified Big Red, causing an overload condition and tipping
leading to injury. Several witnesses for Walker testified that
Big Red as modified by BNSF was overloaded. For example,
David Danaher, a forensic mechanical engineer and certified
professional engineer, opined that the forklift was overloaded
regardless of the position of the forklift. Ken Tester, a safety
trainer, testified at length about the “removable attachment”
modification to the forklift and concluded that “it was just
inevitable an accident would happen.” He explained that “[w]ith
an attachment like an extension, like in the situation where we
have here, the load would be different, [its] maximum would
not be 18,425 pounds, it would be a lot less.” Tester opined
that BNSF should have taken measures to prevent overloading
prior to the incident and that had it done so, the incident may
have been prevented.
BNSF’s theory at trial was that Walker operated the fork-
lift in a dangerous manner and was the cause of its instabil-
ity and accident. In support of its theory, BNSF called Paul
Skelton, a truckdriver who was an eyewitness to the incident.
Skelton testified that he had picked up traction motors at the
Alliance facility “[a] few times” prior to the incident. On the
day of the incident, he observed Walker loading the first trac-
tion motor onto his flatbed trailer, approximately 40 inches
from ground level. He testified that her way of loading struck
him as abnormally high because “[n]ormally, they don’t raise
them that high.” He testified that he “expressed a little bit of
concern about that” because the forklift had seemed to do “a
teeter motion.” The first load came down on the trailer “a little
hard,” and Skelton said he “was worried about the damage to
the trailer because these are particularly expensive trailers that
we have.” After Skelton asked Walker why she raised the load
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WALKER v. BNSF RAILWAY CO.
Cite as 306 Neb. 559
that high, she said she could not see him. Skelton moved so
that they would be able to see each other during the follow-
ing load.
According to Skelton, Walker brought in the second load
high as well. Skelton testified that “it was still raised up con-
siderably higher than it needed to be” but acknowledged it may
have been a bit lower than it had been when Walker delivered
the first load. He observed the load was higher than his head,
and stated he is 5 feet 11 inches tall. Walker began lowering the
load and tilting the mast forward to deposit the motor on the
trailer. As the load got close to the deck, Skelton noticed there
were “boards . . . out of position.” Skelton stopped Walker
before she set the load down so he could reposition the boards.
Walker raised the load back up to around the roof of the forklift
cab, and she backed away, to allow Skelton to maneuver the
boards. He testified that he observed that the forklift mast was
still tipping forward and had not been brought back toward the
forklift cab. Skelton was adjusting the boards when he heard
the sound of a motor revving and turned and observed the trac-
tion motor roll off the front of the forklift and onto the ground.
Skelton observed the forklift tilt backward “back down on all
four wheels.” Skelton testified that Walker’s load positioning,
including the load height and forward tilting of the mast, was
contrary to what he had been taught and had observed in the
past at the Alliance facility.
The jury rendered a verdict for BNSF, and the court accepted
the verdict and entered judgment. Walker moved for a new
trial, which was denied. Walker appeals.
ASSIGNMENT OF ERROR
Walker claims, summarized and restated, that the district
court erred when it excluded evidence of BNSF’s admission
that the forklift was overloaded and at risk for tipping.
STANDARDS OF REVIEW
[1] A trial court has the discretion to determine the rele­
vancy and admissibility of evidence, and such determinations
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WALKER v. BNSF RAILWAY CO.
Cite as 306 Neb. 559
will not be disturbed on appeal unless they constitute an abuse
of that discretion. O’Brien v. Cessna Aircraft Co., 298 Neb.
109, 903 N.W.2d 432 (2017).
[2] Apart from rulings under the residual hearsay exception,
an appellate court reviews for clear error the factual find-
ings underpinning a trial court’s hearsay ruling and reviews
de novo the court’s ultimate determination to admit evidence
over a hearsay objection or exclude evidence on hearsay
grounds. Id.
[3] In a civil case, the admission or exclusion of evidence is
not reversible error unless it unfairly prejudiced a substantial
right of the complaining party. Id.
[4] An abuse of discretion, warranting reversal of a trial
court’s evidentiary decision on appeal, occurs when a trial
court’s decision is based upon reasons that are untenable or
unreasonable or if its action is clearly against justice or con-
science, reason, and evidence. Id.
ANALYSIS
Exclusion of Walker’s Evidence
and Walker’s Offers of Proof.
The central issue in this appeal is generally whether the
district court erred when it excluded Walker’s evidence, which
according to Walker would have shown that a postaccident
investigation led BNSF to believe that Big Red as modified
by BNSF had been overloaded, leading to the risk of tipping
over. Walker specifically claims that Bridges should have been
permitted to testify to that effect.
At trial, Walker attempted to question Bridges, BNSF’s des-
ignee at trial, regarding BNSF’s conclusions and belief that Big
Red’s capacity was exceeded when lifting a G.E. traction motor
using the attachment. Bridges was asked, “And, would you
agree that BNSF and you as their corporate spokesman believe
that the bracket caused or the attachment caused the over-
load[?]” BNSF objected, and the district court sustained the
objection. This question launched subsequent offers of proof
by Walker related to whether BNSF concluded and believed
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WALKER v. BNSF RAILWAY CO.
Cite as 306 Neb. 559
that Big Red was over capacity when employees lifted G.E.
traction motors with the forklifts with the BNSF attachments.
BNSF objected to each offer of proof, and the court sustained
the objections. Walker’s offers of proof submitted after the rul-
ing included the questions and answers from Bridges’ deposi-
tion at which he had admitted the forklift as modified could
cause an overload condition and risk of tipping.
Rules of Evidence.
At trial, BNSF made objections to Bridges’ testimony based
both on the rules related to hearsay and on the prohibition
against introduction of subsequent remedial measures, the lat-
ter of which is contained in Neb. Rev. Stat. § 27-407 (Reissue
2016). Those rules are set forth below.
Hearsay is not admissible except as provided by the Nebraska
Evidence Rules. O’Brien v. Cessna Aircraft Co., supra. See
Neb. Rev. Stat. § 27-803 (Reissue 2016). Under Neb. Rev. Stat.
§ 27-801(4) (Reissue 2016), set forth in relevant part, a state-
ment is not hearsay if “(b) The statement is offered against a
party and is . . . (iv) a statement by his agent or servant within
the scope of his agency or employment . . . .” Section 27-407
provides:
When, after an event, measures are taken which, if
taken previously, would have made the event less likely to
occur, evidence of the subsequent measures is not admis-
sible to prove negligence or culpable conduct in connec-
tion with the event. This rule does not require the exclu-
sion of evidence of subsequent measures when offered
for another purpose, such as proving ownership, control,
or feasibility of precautionary measures, if controverted,
or impeachment. Negligence or culpable conduct, as used
in this rule, shall include, but not be limited to, the manu-
facture or sale of a defective product.
Admissibility Arguments.
On appeal, Walker contends that the evidence sought to be
elicited from Bridges was not hearsay, because it represented
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WALKER v. BNSF RAILWAY CO.
Cite as 306 Neb. 559
the understandings of BNSF, and that the district court erred
when it excluded the evidence on the basis of hearsay. In
response, BNSF asserts that Bridges’ testimony was essentially
a repeat of Taylor’s declarations and that the district court prop-
erly excluded Bridges’ statements because they are hearsay.
Walker further contends that the evidence sought to be
elicited from Bridges reflected BNSF’s postaccident investi-
gation and was part of an investigation, and not a statement,
concerning a subsequent remedial measure and that the dis-
trict court erred when it excluded the evidence on this basis.
In contrast, BNSF asserts that Bridges’ testimony was prop-
erly excluded as evidence of subsequent remedial measures.
See § 27-407.
Error, If Any, Was Not
Unfairly Prejudicial.
As explained below, we determine that even if the Bridges-
related evidence was erroneously excluded, such error was not
prejudicial. We determine that reversal is not required because
the evidence which was excluded attempted to establish the
same fact particularly regarding causation that Walker success-
fully presented to the jury by other means.
[5] As we recited above, the admission or exclusion of
evidence at trial is not reversible error unless it unfairly
prejudiced a substantial right of the complaining party. See
O’Brien v. Cessna Aircraft Co., 298 Neb. 109, 903 N.W.2d
432 (2017). We have stated that when the information is,
for the most part, already in evidence from the testimony of
witnesses, the exclusion of the evidence is not prejudicial.
See Steinhausen v. HomeServices of Neb., 289 Neb. 927, 857
N.W.2d 816 (2015).
At trial, Walker presented evidence that Big Red was over
capacity and argued that the overloaded forklift represented
negligence by BNSF and was the cause of her injuries. Danaher,
Walker’s expert certified professional engineer, opined that
Big Red, outfitted with the attachment, was overloaded when
carrying a G.E. motor regardless of its positioning. And Tester,
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a safety trainer, also testified about the attachment to the
forklift and concluded that “it was just inevitable an accident
would happen.” He opined that under the standards set forth
by the American National Standards Institute, such an attach-
ment “[s]houldn’t have been used in the first place without
expressed written approval by the manufacturer for them to do
their testing on it to see if it was changing any of the stabil-
ity of the forklift.” He explained to the jury that if BNSF had
gone through industry standard protocol for adding an attach-
ment, the forklift operators would have been apprised of the
forklift’s new capacity through new tags and decals placed on
the forklift. He testified that with respect to Big Red’s load,
its “maximum would not be 18,425 pounds, it would be a
lot less.”
However, in spite of Walker’s success eliciting evidence
concerning the hazard presented by Big Red’s attachment,
there was other evidence at trial to support the jury’s verdict
that Walker had not met her burden of proof. BNSF’s case
at trial was that Walker’s operation of the forklift was dan-
gerous and was the cause of its instability and the accident.
Indeed, Walker’s expert witness, Danaher, testified on cross-
examination that based on his discussions with Walker, she had
not followed the training she had received for depositing a load,
and Skelton, who witnessed the accident, testified that Walker
raised the load to an abnormal height and tilted the mast for-
ward more than necessary to deposit the load. Further, BNSF
introduced evidence of a commonly used “rule of thumb” met-
ric under which, it argued, Big Red was not overloaded. Thus,
there was ample evidence for the jury’s consideration in sup-
port of both Walker’s and BNSF’s theories. Given the record,
we conclude that the district court’s exclusion of evidence did
not prejudice a substantial right of Walker’s.
CONCLUSION
Although the district court excluded testimonial evidence of
BNSF’s designee related to the company’s postaccident inves-
tigation, the exclusion did not unfairly prejudice a substantial
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right of Walker, because she was able to present other evidence
showing the same facts, and there was sufficient evidence to
support the jury’s verdict. We affirm the judgment of the dis-
trict court.
Affirmed.
Miller-Lerman, J., concurring.
I concur with the court’s determination that this case should
be affirmed. My analysis differs because I would find that
the exclusion of the Bridges-related testimony was erroneous,
although I agree its exclusion was not prejudicial. As I explain
below, I believe Bridges’ testimony was not hearsay nor was it
evidence of a subsequent remedial measure; hence, it should
have been admitted. Further, I suggest this court adopt the dis-
tinction commonly made between postaccident investigations
and subsequent remedial measures, the former of which are
admissible under § 27-407.
HEARSAY
Contrary to BNSF’s assertion, I agree with Walker that
admissions by BNSF’s corporate designee, Bridges, at trial
and in his deposition, are not hearsay under § 27-801(4)(b)(iv).
The admissions by a party to an action upon a material matter
are admissible against him or her as original evidence. Ficke
v. Wolken, 291 Neb. 482, 868 N.W.2d 305 (2015). Thus, as a
general rule, any act or conduct on the part of a party which
may fairly be interpreted as an admission against interest on
a material issue may be shown in evidence against him or
her. Id.
BNSF has attempted to characterize Bridges’ testimony as
merely conveying the conclusion of Big Red’s manufacturers.
However, the record shows that Bridges was asked about his
beliefs and BNSF’s conclusions. BNSF’s representative was
asked at trial if BNSF believed that the attachment caused an
overload condition of the forklift and if he “agree[d] that every
time an employee lifted a traction motor with that setup he or
she was exceeding [the capacity].” Bridges’ testimony that he,
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on behalf of BNSF, believed that Big Red as modified exceeded
capacity was an admission by a party regarding a material
matter, which under § 27-801(4)(b)(iv) should not have been
excluded as hearsay. Accordingly, I agree with Walker that the
district court erred when it characterized Bridges’ testimony as
hearsay and excluded it on this basis.
SUBSEQUENT REMEDIAL MEASURES
The rule pertaining to the exclusion of the subsequent reme-
dial measures is codified in Nebraska in § 27-407. The rule as
it relates to postevent investigations or reports has been much
discussed in jurisprudence across the country. See, Brazos
River Authority v. GE Ionics, Inc., 469 F.3d 416 (5th Cir.
2006); Complaint of Consolidation Coal Co., 123 F.3d 126 (3d
Cir. 1997); Prentiss & Carlisle v. Koehring-Waterous, 972 F.2d
6 (1st Cir. 1992); Specht v. Jensen, 863 F.2d 700 (10th Cir.
1988); Rocky Mountain Helicopters v. Bell Helicopters, 805
F.2d 907 (10th Cir. 1986); Maddox v. City of Los Angeles, 792
F.2d 1408 (9th Cir. 1986); Westmoreland v. CBS Inc., 601 F.
Supp. 66 (S.D.N.Y. 1984); Alimenta (U.S.A.), Inc. v. Stauffer,
598 F. Supp. 934 (N.D. Ga. 1984); Bullock v. BNSF Ry. Co.,
306 Kan. 916, 399 P.3d 148 (2017); Martel v. Mass. Bay
Transp. Authority, 403 Mass. 1, 525 N.E.2d 662 (1988).
The view I would find applicable and would adopt is that
evidence of a postaccident investigation which is distinguish-
able from a remedial undertaking is not excluded by § 27-407.
By its text, § 27-407 is explicitly limited to measures taken
after an event “which, if taken previously, would have made
the event less likely to occur.” This does not mean that “com-
petent evidence resulting from an internal investigation of a
mishap must also be excluded.” Westmoreland, 601 F. Supp.
at 67. One treatise observes that “such reports or inspections
are not themselves remedial measures, and do not themselves
even reflect decisions to take or implement such measures.”
2 Christopher B. Mueller & Laird C. Kirkpatrick, Federal
Evidence § 4:50 at 75 (4th ed. 2013).
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It is well recognized that the policy of excluding subsequent
remedial measures attempts to avoid discouraging steps to
further safety. See, e.g., Dusenbery v. United States, 534 U.S.
161, 122 S. Ct. 694, 151 L. Ed. 2d 597 (2002); Wollenhaupt
v. Andersen Fire Equip. Co., 232 Neb. 275, 440 N.W.2d 447
(1989). However, “the policy considerations that underlie Rule
407, such as encouraging remedial measures, are not as vig-
orously implicated where investigative tests and reports are
concerned.” Rocky Mountain Helicopters, 805 F.2d at 918.
Extending the rule to exclude evidence of all postaccident
investigations “fails to credit the social value of making avail-
able for trial what is often the best source of information.”
Westmoreland, 601 F. Supp. at 67. The fruits of these inves-
tigative tests and reports are “one of the best and most accu-
rate sources of evidence and information.” Id. at 68. I agree
with the observation that “[i]t would strain the spirit of the
remedial measure prohibition in Rule 407 to extend its shield
to evidence contained in post-event tests or reports.” Rocky
Mountain Helicopters, 805 F.2d at 918.
Walker’s attempted examination of Bridges and her offers of
proof at issue here did not touch on BNSF’s decision to imple-
ment remedial measures after Walker’s accident. Conclusions
drawn by BNSF’s agents regarding the forklift’s capacity with
the attachment were competent evidence resulting from an
internal investigation of Walker’s incident and were not, on
their own, evidence of remedial measures taken to prevent
future injuries. Accordingly, I agree with Walker that the dis-
trict court erred when it characterized Walker’s propounded
evidence as subsequent remedial measures and excluded post-
accident investigations, tests, and reports on this basis.
Although I believe the Bridges-related postaccident investi-
gation evidence was wrongly excluded, viewing the record as
a whole, I agree with this court’s conclusion in this case that
such exclusion was not prejudicial.