Doran v. Burlington Northern

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KRISTI W. DORN, personal 
representative est Larry M. Dorn,
No. 03-35071
Plaintiff-Appellee,
v.  D.C. No.
CV-99-00168-RFC
BURLINGTON NORTHERN SANTA FE
OPINION
RAILROAD COMPANY,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, District Judge, Presiding
Argued and Submitted
August 5, 2004—Seattle, Washington
Filed February 7, 2005
Before: Andrew J. Kleinfeld, Consuelo M. Callahan,
Circuit Judges, and William O. Bertelsman,* District Judge.
Opinion by Judge Callahan
*The Honorable William O. Bertelsman, Senior United States District
Judge for the Eastern District of Kentucky, sitting by designation.
1585
1588 DORN v. BURLINGTON NORTHERN SANTA FE
COUNSEL
Charles G. Cole and Alice E. Loughran, Steptoe & Johnson
LLP, Washington, D.C., for the defendant-appellant.
Alexander (Zander) Blewett, III and Kurt M. Jackson, Hoyt
& Blewett PLLC, Great Falls, Montana for the plaintiff-
appellee.
DORN v. BURLINGTON NORTHERN SANTA FE 1589
Susan J. Rebeck, Nick A.W. Rotering, Montana Department
of Transportation Legal Services, Helena, Montana, for the
amicus curiae.
OPINION
CALLAHAN, Circuit Judge:
This is an appeal from a jury verdict awarding the plaintiff
in a wrongful-death and survivorship action $6,655,200 in
compensatory and punitive damages. The defendant seeks a
new trial, arguing that the district court reached an incorrect
legal conclusion that infected certain evidentiary rulings, the
jury instructions, and the manner in which the punitive-
damages phase of the trial was conducted. We agree that the
district court should have granted the defendant’s motion for
a new trial in light of various trial errors. Having jurisdiction
under 28 U.S.C. § 1291, we reverse the judgment and remand.
I. Background
Near Hardin, Montana, railroad tracks of the Burlington
Northern Santa Fe Railway Company (“Burlington”) run
north and south parallel to Montana Highway 87. Somewhere
thereabouts, a short gravel road leads from Highway 87 in a
southwestwardly direction. Approximately ninety-four feet
from Highway 87, the gravel road crosses the Burlington’s
railroad tracks at a sharp angle (roughly 45 degrees) as it
heads into the parking lot of Cenex, a privately-owned com-
mercial grain elevator. The gravel road also provides access
to a number of residences that lie beyond Cenex’s facility.
Burlington did not build the gravel road, the pertinent por-
tions of which lie on land owned by the State of Montana or
by Burlington. Rather, Cenex’s predecessor constructed the
gravel road pursuant to a permit from the Montana Depart-
1590 DORN v. BURLINGTON NORTHERN SANTA FE
ment of Transportation (“MDT”) in 1968. Burlington none-
theless installed a stop sign with a railroad-crossing symbol at
the edge of the tracks — albeit without crossing gates or
warning lights.
In 1975, a truck traveling west on the gravel road across
Burlington’s tracks was struck by a southbound train. This
scenario unfolded again at the same location 21 years later in
1996. After the 1996 accident, Burlington was provided with
the opinion of a consultant. The consultant opined that the
cause of the accident was the truck driver’s inability to see far
enough up the tracks at such a sharp angle to detect the
oncoming train in time to avoid a collision. The consultant
also recommended realigning the angle of the crossing from
45 degrees to 90 degrees and installing automatic crossing
gates with flashing lights. Neither Montana, nor Cenex, nor
Burlington realigned the crossing, or installed automatic gates
or flashing lights.
On the afternoon of December 2, 1999, Larry Dorn was
driving a grain truck along the gravel road from Highway 87
toward the Cenex facility as a southbound Burlington train
approached the crossing. Evidence in the record suggests that
other truckers had warned him that morning that he should not
follow the gravel road’s 45-degree angle as he approached the
tracks; instead, he should “square up” his truck to the tracks
at a 90-degree angle before crossing so as to get a longer and
better view of the tracks to the north. Additionally, there is
conflicting evidence as to whether Dorn approached the tracks
at a 45-degree angle, or if he altered his vehicle’s trajectory
to “square up” perpendicular to the tracks. Finally, there is
also some question as to whether he came to a complete stop
at the tracks before starting across them.
In any event, Dorn did not make it all the way to the other
side of the crossing. He was struck and killed by the oncom-
ing train. Aged twenty-three years, he was a husband and the
father of a two-year-old daughter at the time of his death.
DORN v. BURLINGTON NORTHERN SANTA FE 1591
Seeking compensatory and punitive damages and asserting
diversity jurisdiction, Dorn’s widow, Kristi W. Dorn
(“plaintiff”), filed a wrongful-death and survivorship action
against Burlington in the United States District Court for the
District of Montana.
II. Procedural History
Prior to trial, plaintiff filed a motion in limine to prevent
Burlington from arguing that her husband could have
“squared up” to the crossing. District Judge Jack D. Shan-
strom (who presided over the case in its pretrial stages) pro-
hibited Burlington “from mentioning or arguing to the jury
that . . . Dorn should have driven in the left hand on-coming
lane of traffic . . . in order to reposition his truck or square-up
to approach the crossing at a 90 degree angle.” Subsequent
rulings suggest that the district court premised this prohibition
on the notion that the gravel road was a public highway sub-
ject to Montana’s traffic laws — one of which generally for-
bids motorists from maneuvering their vehicles away from the
right half of the roadway. Mont. Code Ann. § 61-8-321. This
public-highway determination also led the court to rule that
Dorn was not obliged to obey the stop sign erected by Bur-
lington, on the theory that a private company was not autho-
rized to erect a traffic control signal on a public highway.
The case was later reassigned to District Judge Richard F.
Cebull, who, consistent with his predecessor’s orders, denied
Burlington’s motion to strike plaintiff’s claim for punitive
damages. In particular, District Judge Cebull specified that
Burlington could not submit evidence that it had put up a stop
sign or that Dorn should have obeyed it. The district court
indicated that it would allow Burlington to put on evidence
that it had erected a non-complying stop sign only if plaintiff
implied to the jury that the visual warnings at the crossing
were inadequate.
1592 DORN v. BURLINGTON NORTHERN SANTA FE
A. Expert Witnesses
During the trial, plaintiff called two expert witnesses to tes-
tify about the cause of the accident, and one expert to offer his
opinions about hedonic damages.1 Meanwhile, Burlington
sought to advance the theory at trial that Dorn had “squared
up” to the tracks but did not stop before crossing them.
1. Montana Highway Patrol Officer Steve Wiesnewski
One of plaintiff’s experts, Montana Highway Patrol Officer
Steve Wiesnewski, explained that he had investigated Dorn’s
accident on the day that it occurred. Wiesnewski stated that
he found a tire mark at the crossing that was at a 45-degree
angle to the tracks. However, a videotape of the accident
scene as it appeared that evening, recorded by the Montana
Highway Patrol, depicts the tire mark lying at 90 degrees in
relation to the tracks. The videotape initially was admitted
into evidence as an exhibit without objection, and Wies-
newski testified that it was necessary to review the video to
understand what happened in the accident.
The district court, however, excluded the videotape when
the plaintiff objected that the parties had not questioned Wies-
newski about the videotape during his deposition. The district
court also ordered Burlington not to ask Wiesnewski, on
cross-examination, whether the videotape shows the tire mark
lying at a 90-degree angle, as such a question would “call for
expert testimony that was not disclosed.” The district court
also forbade Burlington from questioning Wiesnewski on his
perception of the tire mark’s direction. Nonetheless, Wies-
newski conceded during cross-examination that he believed
that the vehicle was perpendicular to the tracks at the time of
the accident. The district court then granted plaintiff’s verbal
motion to strike and instructed the jury to disregard Wies-
1
Hedonic damages are those “that attempt to compensate for the loss of
the pleasure of being alive.” Black’s Law Dictionary 395 (7th ed. 1999).
DORN v. BURLINGTON NORTHERN SANTA FE 1593
newski’s concession, on the ground that it was “directly con-
trary to his testimony on direct.”
2. William Douglas Berg, Ph.D.
Later in the trial, plaintiff called another expert, William
Douglas Berg, who holds a Ph.D. in civil engineering. Berg
told the jury that it was physically impossible to drive along
the gravel road and approach the crossing at a 90-degree angle
without going off the road — regardless of whether a truck
crossed the centerline. Burlington sought to rebut this opinion
by calling certain truck drivers to testify that they had man-
aged on a daily basis to “square up” to the tracks at a right
angle, without going off the road. Burlington also asked for
permission to submit evidence that other truck drivers had
cautioned Dorn to “square up” to the crossing on the day of
his death.
The district court recollected the pretrial ruling on plain-
tiff’s motion in limine, where District Judge Shanstrom pro-
hibited any suggestion that Dorn should have crossed the
centerline to get a better view. The district court construed
this ruling as barring evidence that Dorn could have
approached the crossing at a 90-degree angle, and denied both
of Burlington’s requests.
3. Stan V. Smith, Ph.D.
Finally, plaintiff called Stan V. Smith, Ph.D., an economist,
to provide expert opinions regarding hedonic damages in gen-
eral, as opposed to Dorn’s hedonic damages in particular.
Burlington objected to this evidence, insisting that the theory
of hedonic damages was unreliable and that testimony on the
topic would invade the province of the jury. The district court
overruled the objection and allowed the jury to consider
Smith’s opinions.
In response, Burlington sought to call Thomas Ireland,
Ph.D., to opine that economists lack the tools to estimate the
1594 DORN v. BURLINGTON NORTHERN SANTA FE
value of a human life. In so doing, Ireland would not have tes-
tified that Smith had somehow overestimated or miscalculated
the generalized measure of hedonic damages. Before Ireland
was examined in front of the jury, however, plaintiff protested
that “the [c]ourt . . . has already determined that there is suffi-
cient reliability to allow [Smith’s calculations] to go to the
jury, so [Ireland] should not be able to impeach the [c]ourt by
what he’s saying, that this is junk science and those types of
things.” The district court expressed an inclination to agree
with plaintiff, but allowed Burlington to make an offer of
proof by examining Ireland out of the jury’s presence.
Without using the words “junk science” or “irrelevant” in
his voir dire, Ireland basically indicated that economists can-
not measure the value of a human life because there is no
market for happiness, for lost society, or for lost enjoyment of
life. Ireland went on to explain that his proposed testimony
would not attack the district court’s admissibility ruling, but
would only challenge Smith’s methodology and credibility.
Nevertheless, without finding him unqualified to serve as an
expert witness, the district court barred the jury from hearing
Ireland’s opinions, concluding that they were an attack on the
legal determination that Smith’s testimony was admissible.
B. Compensatory and Punitive Damages
After the first phase of the bifurcated trial, the jury returned
a special verdict, finding that Burlington’s negligence had
caused Dorn’s death, and rating Dorn’s contributory negli-
gence at thirty-five percent. The jury awarded plaintiff
$1,000,000 in wrongful-death damages and $1,008,000 in sur-
vivorship damages.2 The jurors also found that Burlington
2
The special verdict form did not provide the jury with an opportunity
to break down these awards into any other categories; for example, eco-
nomic damages or hedonic damages. Accounting for Dorn’s contributory
negligence, the district court later reduced the survivorship damages to
$655,200 — bringing the total compensatory damages to $1,655,200.
DORN v. BURLINGTON NORTHERN SANTA FE 1595
either had knowledge of facts, or intentionally disregarded
facts, that created a strong probability of harm to Dorn, and
that Burlington deliberately acted with indifference to that cir-
cumstance.
Consequently, the trial moved into the second phase, where
the jury determined the extent of punitive damages. During
this phase, the district court permitted the jury to consider
only evidence of Burlington’s net worth. The district court
barred any evidence suggesting that Burlington regarded the
gravel road as a private driveway where traffic laws did not
apply to prohibit drivers from “squaring up” to the crossing.
The jury returned an award of $5,000,000 in punitive dam-
ages. Thereafter, the district court entered judgment and
denied Burlington’s motion for a new trial. Burlington timely
appealed.
III. Discussion
On appeal, Burlington argues that the district court abused
its discretion in refusing to order a new trial in light of numer-
ous flaws in the proceedings. Specifically, Burlington claims
that the district erred in: (1) determining that the gravel road
was a public highway as a matter of Montana law, and barring
evidence that Burlington regarded the gravel road as a private
driveway, regardless of whether it was, legally speaking, a
public highway; (2) ordering Burlington to refrain from cross-
examining Officer Wiesnewski about the videotaped depic-
tion of the tire track, and striking the officer’s concession
regarding the angle of Dorn’s truck as it approached the
tracks; (3) preventing Burlington from impeaching Berg’s tes-
timony with witnesses who had “squared up” to the tracks
without going off the road, and with testimony that Dorn had
been warned to “square up” to the crossing; (4) permitting
Smith to offer expert opinion on hedonic damages, and
excluding Ireland’s testimony on the inability of economists
to measure hedonic damages; (5) declining to instruct the jury
on corporate responsibility for punitive damages; and (6) fail-
1596 DORN v. BURLINGTON NORTHERN SANTA FE
ing to conduct a proper review of the punitive damages
award.
A. Standard of Review
We review for abuse of discretion a district court’s denial
of a motion for a new trial under Federal Rule of Civil Proce-
dure 59(a). Jorgensen v. Cassiday, 320 F.3d 906, 918 (9th
Cir. 2003). A district court abuses its discretion in denying a
motion for a new trial when its erroneous inclusion or exclu-
sion of evidence in the underlying proceeding prejudices a
party’s right to a fair trial. See Dabney v. Montgomery Ward
& Co., Inc., 692 F.2d 49, 51-53 (8th Cir. 1982) (holding that
a district court abused its discretion in denying a new trial in
light of its erroneous exclusion of evidence); cf. Logan v.
Dayton Hudson Corp., 865 F.2d 789, 790 (6th Cir. 1989)
(affirming the grant of a new trial where the district court
erroneously admitted evidence).
B. Trial Errors
We begin by analyzing the district court’s ruling that the
gravel road was a public highway as a matter of Montana law.
From there, we review other errors assigned by Burlington.
1. The Gravel Road is not a Public Highway
Burlington contests the district court’s determination that
the gravel road was a public highway as a matter of Montana
law. This court reviews legal conclusions de novo. Rodriguez
v. Panayiotou, 314 F.3d 979, 983 (9th Cir. 2002).
Preliminarily, we pause to address plaintiff’s charge that
Burlington may not challenge this ruling on appeal since it did
not object to the underlying jury instructions. We note that
Burlington challenged the ruling on many occasions, e.g., by
opposing and filing motions in limine, and by orally asking
for reconsideration of the ruling in light of the evidence pre-
DORN v. BURLINGTON NORTHERN SANTA FE 1597
sented at various points in the trial. In fact, District Judge
Cebull warned Burlington that he was not inclined to “rehash”
the issue any further. In light of its definitive ruling on a
motion in limine and subsequent warning about rehashing the
issue, the district court was fully informed of Burlington’s
position on the jury instructions and any further objection
would have been superfluous and futile as well as contrary to
the court’s warning. See Mukhtar v. Cal. State Univ. Hay-
ward, 299 F.3d 1053, 1063 (9th Cir. 2002), amended by 319
F.3d 1073 (9th Cir. 2003).
Turning to the merits of Burlington’s arguments, the dis-
trict court found that the gravel road was a public highway
because, as indicated in the 1968 MDT permit, the land on
which the road runs is owned by the state and the road is open
for vehicular travel to the “traveling public.” We do not view
the language in the permit as a sufficient basis on which to
rule that the road is a public highway. Instead, the road’s
potential status as a public highway hinges on whether it was
“publicly maintained,” Mont. Code Ann. § 61-1-201, “dedi-
cated to public use,” or “acquired by adverse use by the pub-
lic, with jurisdiction having been assumed by the state . . . .”
Id. §§ 60-1-103(22)(b), (d).3
a. No Public Maintenance
[1] Although the MDT permit does indicate that the state
may supervise and dictate the terms of the road’s mainte-
nance, it squarely places the burden of maintenance on the
permittee. Despite that, the district court may have been mis-
led into believing that the road was publicly maintained.
Indeed, Paul Bronson, the Field Maintenance Chief for the
Billings District of the MDT, attested in an affidavit that his
3
We find plaintiff’s position — that the road must be public because it
is not private — unconvincing, insofar as plaintiff cites no authority for
the proposition that every road in Montana must either be a public high-
way or a private driveway.
1598 DORN v. BURLINGTON NORTHERN SANTA FE
staff had “performed maintenance on this approach during the
fall of 1998.”
But in a subsequent deposition, Bronson clarified that, by
“maintenance,” he was referring to the fact that his crew had
elevated the point where the gravel meets Highway 87 on one
occasion only, to make a smoother transition. Also, Mike
Bousliman, the systems operation manager for the MDT’s
Maintenance Division, confirmed in his affidavit that the road
has never been included in the state maintenance system, and
that the MDT has never maintained it. Jerry Miller, the road
superintendent for Big Horn County, declared in his affidavit
that the gravel road has not been maintained by Big Horn
County.
The district court inexplicably rejected the significance of
Bronson’s deposition testimony and the affidavits of Bousli-
man and Miller. Had the district court properly considered
this evidence, however, it could not have found that the road
was publicly maintained. Undaunted, plaintiff points to evi-
dence indicating that some unidentified person (perhaps from
the Bureau of Indian Affairs or maybe from the Crow Tribe)
infrequently plowed the road in wintertime. This evidence is
not sufficient to show that the road was publicly maintained.
[2] Plaintiff responds that the gravel road indisputably runs
along Montana land (up to the point where it crosses Burling-
ton property), and that the lack of maintenance cannot, as a
matter of Montana law, be used to demonstrate that the state
has abandoned a road. This logic is backwards. The idea that
Montana may not abandon a public road by failing to main-
tain it presupposes that the road was public at sometime to
begin with. If the state never declared the road public, never
assumed jurisdiction over it, and never maintained it, there is
no public road to abandon. We conclude that the road was not
publicly maintained.
DORN v. BURLINGTON NORTHERN SANTA FE 1599
b. No Dedication to Public Use or Assumption of
Jurisdiction
[3] The record does not contain evidence that the gravel
road was “dedicated to public use” as that phrase is used in
Mont. Code Ann. § 60-1-103(22)(b). See State v. Taylor, 203
Mont. 284, 288, 661 P.2d 33, 35 (1983) (finding dedication
established by testimony that a document was filed with the
clerk recorder’s office); Kaufman v. Butte, 48 Mont. 400, 407-
08, 138 P. 770, 771 (1914) (determining a filed plat map
served as a common law dedication). Because the road was
not publicly maintained or dedicated to public use, it cannot
be considered a public highway under applicable Montana
law unless it was “acquired by adverse use by the public, with
jurisdiction having been assumed by the state . . . .” Mont.
Code Ann. § 60-1-103(22)(d).
The language of the controlling statute leaves little doubt
that jurisdiction over a road in Montana must be assumed by
the state, or some political subdivision thereof, in order for the
road to be transformed into a public highway by adverse
usage. See id.; see also Pederson v. Dawson County, 303
Mont. 158, 163, 17 P.3d 393, 396 (2000) (“[C]ounty roads
cannot be created without the county’s [expressed] intent . . .
to do so.”). To hold otherwise could impose an impractical
burden on the state of Montana.
Indeed, according to the amicus brief filed in this appeal by
the MDT, there are more miles of road open to the public in
the state of Montana, 69,542 miles to be exact, than there are
miles of highway in the entire United States Interstate System,
which total 45,500. Currently, the state has assumed jurisdic-
tion and maintenance over just 10,775 miles of road in Mon-
tana. With its small population of 915,500, there is not a
sufficient tax base or labor pool for the state to maintain all
of the roads open to the public. Therefore, the state must be
able to select the roads that it is willing to maintain as public
highways.
1600 DORN v. BURLINGTON NORTHERN SANTA FE
Plaintiff’s attempts to avoid this construction of § 60-1-
103(22)(d) are unavailing. First, plaintiff’s reliance on the
Montana Supreme Court’s opinion in Hitshew v. Butte/Silver
Bow County, 293 Mont. 212, 974 P.2d 650 (1999), is mis-
placed. That opinion did not analyze the requirement that a
state assume jurisdiction; on the contrary, it addressed
whether the defendant had provided sufficient evidence of
adverse possession to shift the burden to the plaintiff to show
that the use of the land in question was permissive. 293 Mont.
at 218-19, 974 P.2d at 654-55.
Second, plaintiff reads too much into the language of Gran-
ite Co. v. Komberec, where the Montana Supreme Court
acknowledged that “the burden on a county of demonstrating
that it acquired jurisdiction to create a road has been dimin-
ished . . . .” 245 Mont. 252, 259, 800 P.2d 166, 170 (1990)
(emphasis added), overruled on other grounds by Warnack v.
Coneen Family Trust, 266 Mont. 203, 214-15, 879 P.2d 715,
722 (1994). In other words, Granite Co. v. Komberec did
nothing to reduce the burden on a third party or an average
citizen to show that the state or one of its subdivisions had
assumed jurisdiction. After all, a state or one of its subdivi-
sions presumably may assume jurisdiction merely by saying
so, whereas an average citizen may not so easily impose juris-
diction on the state or one of its subdivisions.
Third, the analysis in Johnson v. McMillan is inapposite.
238 Mont. 393, 778 P.2d 395 (1989), overruled on other
grounds by Warnack, 266 Mont. at 214-15, 879 P.2d at 722.
In that case, the Montana Supreme Court held that a particular
road had become “a public road” or “a public way” through
adverse usage. 238 Mont. at 395-97, 778 P.2d at 396-97. In
so doing, the court never mentioned whether the state or one
of its subdivisions had assumed jurisdiction over the road.
But, at the same time, the court never hinted that it was con-
struing any part of Mont. Code Ann. § 60-1-103, which is
controlling here. We are unwilling to stretch the partially
overruled holding in Johnson so far as to construe it as a
DORN v. BURLINGTON NORTHERN SANTA FE 1601
license to ignore the language in § 60-1-103(22)(d) requiring
the assumption of jurisdiction by the state.
Rather than shifting jurisdiction over the gravel road to the
state, the MDT permit places jurisdiction with the permittee
subject to supervision and revocation by the state. Plaintiff
points to other evidence indicating that Burlington considered
the road to be a public highway; namely, an Industrial Track
Agreement entered into by Burlington and Cenex’s predeces-
sor in 1971, an Accident Report submitted by Burlington to
the U.S. Department of Transportation concerning the 1975
accident, and a Private Roadway and Crossing Agreement
between Burlington and a third party in 1997. This evidence
has no bearing, however, on whether the state or one of its
subdivisions assumed jurisdiction over the road, much less
whether the road was maintained by public resources, dedi-
cated to public usage, or acquired by adverse usage.4 In short,
there is no evidence in the record establishing that the state
assumed jurisdiction over the road.
[4] We hold that the gravel road was not a public highway
as a matter of Montana law at the time of Dorn’s death. In
light of our holding, we need not reach Burlington’s alterna-
tive argument, to wit, that the district court erred in excluding
evidence indicating that Burlington believed the road to be a
private driveway.
2. Burlington’s Efforts to Impeach Wiesnewski’s
Testimony
The theory pressed by Burlington at trial was that Dorn
crossed the tracks at a 90-degree angle, regardless of whether
4
Being unable to predict what, if any, evidence will be presented upon
retrial, we do not express an opinion as to whether the Industrial Track
Agreement, the Accident Report, or the Private Roadway and Crossing
Agreement could be admissible for purposes of impeaching Burlington’s
purported view of the road as a private driveway.
1602 DORN v. BURLINGTON NORTHERN SANTA FE
it was legal for him to do so. Thus, even if the road was a
public highway, Burlington insists that the district court
improperly thwarted its attempts to cross-examine Wies-
newski regarding the angle of Dorn’s truck as it traversed the
crossing. Decisions limiting the scope of cross-examination
are reviewed for an abuse of discretion. See Robertson v. Bur-
lington N. R.R. Co., 32 F.3d 408, 411 (9th Cir. 1994).
[5] We agree with Burlington on this point. Testimony con-
cerning the angle at which Dorn crossed the tracks is not
argument as to whether he should have violated a traffic law,
but evidence of what actually happened. The district court
abused its discretion in preventing the jury from weighing this
evidence.
[6] According to the district court, Burlington’s inquiries of
Wiesnewski regarding the videotaped depiction or his own
recollection of the angle of Dorn’s tire mark would “call for
expert testimony that was not disclosed.” Wiesnewski’s per-
ception of the angle of the tire mark, however, would not con-
stitute the opinion of an expert, but the observation of a
percipient witness, see Fed. R. Evid. 601-602, or a permissi-
ble opinion by a lay witness. See Fed. R. Evid. 701; see also
4 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Fed-
eral Evidence § 701.03[4][a], at 701-21 to 701-22 (2d ed.
2004); Dunn v. St. Louis-San Francisco Ry. Co., 370 F.2d
681, 685 (10th Cir. 1966) (“[A] uniformed highway officer
[testified] . . . on the basis of his observation of the marks left
on the truck and the boxcar . . . that the boxcar had been
standing still at the moment of impact. We quite agree that it
would have been preferable to have . . . the officer [describe]
what he saw . . . [rather than] state deductions which the jury
could make as easily as he.”).
[7] Even more troubling is the district court’s decision to
strike and instruct the jury to disregard Wiesnewski’s cross-
examination concession that he believed that Dorn’s truck
was perpendicular to the tracks. The district court based this
DORN v. BURLINGTON NORTHERN SANTA FE 1603
decision on the ground that Wiesnewski’s remark was “di-
rectly contrary to his testimony on direct.” Of course,
“[i]mpeachment by contradiction is authorized by Rule 607
[of the Federal Rules of Evidence].” Jack B. Weinstein &
Margaret A. Berger, Weinstein’s Evidence Manual
§ 12.01[4], at 12-16 (2003). Finding no authority that would
validate these rulings, we conclude that it was error for the
district court to encumber Wiesnewski’s testimony in this
manner.
Plaintiff insists that the errors were harmless since Wies-
newski was allowed to testify at a different point that the
truck was perpendicular to the tracks. Plaintiff also claims that
the district court permitted another Highway Patrol officer,
Eric Winburn, as well as Burlington employees, to testify
similarly. These arguments are faulty, in both a factual and a
legal sense.
The testimony of the two officers cited by plaintiff merely
recounts statements made by Burlington employees to the
officers concerning what the employees saw from the train at
the time of the accident. In other words, the officers did not
testify that they thought the truck crossed the tracks at a right
angle, but only that Burlington employees had said as much.
Furthermore, the jurors easily could discount as biased the
assertions of Burlington’s employees that Dorn had crossed at
a 90-degree angle — whereas they may not have been so
inclined to treat a neutral law enforcement official, professing
on direct examination that the truck had crossed at a 45-
degree angle, with such scrutiny. See Darbin v. Nourse, 664
F.2d 1109, 1114-15 (9th Cir. 1981) (acknowledging the
potential for jurors to give “undue weight to the testimony of
law enforcement officers because of their official positions”);
Weinstein’s Evidence Manual § 12.01[2], at 12-4 (“[B]ias is
always significant in assessing the witness’s credibility
. . . .”).
The question of whether Dorn crossed the tracks perpendic-
ularly, or simply followed the road’s sharper angle, is not
1604 DORN v. BURLINGTON NORTHERN SANTA FE
insignificant. The record suggests that crossing at a wider
angle would have provided Dorn with a longer view of the
tracks to the north, perhaps even a panorama sufficient to
avoid a collision. Hence, the extent to which Dorn’s negli-
gence contributed to the tragedy likely would be greater under
that scenario than if the jurors were persuaded that he had
crossed the tracks by following the road’s more narrow angle.
3. Burlington’s Attempts to Impeach Berg’s Opinions
Burlington contends that, in light of Berg opining that it
was not possible to “square up” to the crossing without going
off the road, the district court should not have excluded rebut-
tal testimony from lay witnesses indicating that they had regu-
larly accomplished this feat without going off the road.
[8] The erroneously encumbered testimony of Officer
Wiesnewski suggested that Dorn had crossed the tracks at a
45-degree angle. Adding the expert opinion of a witness who
holds a doctorate degree in civil engineering — that it was a
physical impossibility for Dorn to cross at a right angle, as
Burlington’s employees claimed — could only bolster the
idea that Dorn must have crossed at a sharper angle. We hold
that the district court abused its discretion by excluding testi-
mony from seemingly unbiased witnesses whose ordinary
experiences would tend to rebut, if not impeach, Berg’s con-
clusion, and that the error was not harmless.
Recalling our holding that the gravel road was not a public
highway at the time of the accident, we believe that evidence
concerning the warnings other drivers gave Dorn about the
need to “square up” to the crossing could be relevant to a
number of issues upon retrial, for instance, Dorn’s contribu-
tory negligence, or perhaps even the claim for punitive dam-
ages. Such relevance would cause the evidence to become
admissible, so long as it is not excludable for some other rea-
son, upon retrial.
DORN v. BURLINGTON NORTHERN SANTA FE 1605
4. Hedonic Damages
Burlington claims that the district court erred by allowing
plaintiff’s expert, Stan Smith, to provide expert testimony
regarding hedonic damages, and by excluding the testimony
of its expert, Thomas Ireland, who would have refuted
Smith’s opinions. We agree that, assuming hedonic damages
are recoverable under Montana law and that Stan Smith’s tes-
timony was admissible, the district court erred in excluding
Thomas Ireland’s testimony.
a. Hedonic Damages in Montana
Our first inquiry is whether Montana law permits the recov-
ery of hedonic damages in wrongful-death or survivorship
actions. See Smith v. Ingersoll-Rand Co., 214 F.3d 1235,
1245-46 (10th Cir. 2000) (affirming admission of testimony
concerning hedonic damages because New Mexico law
allows recovery of such damages); Weinstein’s Federal Evi-
dence § 702.02(7), at 702-30 to 702-31 (noting situations
where “state substantive law will impinge upon the trial
court’s admissibility decision” regarding expert witnesses; for
instance, when state law establishes “elements of a cause of
action or defense”). It appears that the Montana Supreme
Court has not taken a firm position on the availability of
hedonic damages. See Christofferson v. City of Great Falls,
316 Mont. 469, 484, 74 P.3d 1021, 1031 (2003) (declining to
address the issue because it was moot); Hunt v. K-Mart Corp.,
294 Mont. 444, 448, 981 P.2d 275, 279 (1999) (permitting
expert opinion regarding hedonic damages because defendant
failed to pose a timely objection to the testimony); Henrick-
son v. State of Montana, 319 Mont. 307, 328 (allowing for,
but not defining, “damages for loss of ability to pursue an
established course of life”).
Burlington cites a number of authorities from other juris-
dictions holding either that it was not an abuse of discretion
to bar expert testimony concerning hedonic damages, or that
1606 DORN v. BURLINGTON NORTHERN SANTA FE
it was error to allow such testimony.5 These opinions, how-
ever, do not shed light on Montana’s perspective. As we have
not been directed to a firm statement of Montana law, we can-
not say that the district court’s decision to allow hedonic dam-
ages “lies beyond the pale of reasonable justification under
the circumstances.” Harman v. Apfel, 211 F.3d 1172, 1175
(9th Cir. 2000).
b. Smith’s Testimony
Burlington does not challenge Smith’s qualifications, but
insists only that his testimony was not helpful to, or invaded
the province of, the jurors. To be admissible, an expert wit-
ness’s opinion must be capable of assisting the trier of fact in
interpreting the evidence or resolving a disputed fact. Fed. R.
Evid. 702. We share some of Burlington’s concerns with
Smith’s methodology.
5
See Mercado v. Ahmed, 974 F.2d 863, 868-71 (7th Cir. 1992) (declin-
ing to reverse a judgment based on the exclusion of Smith’s testimony);
Loth v. Truck-A-Way Corp., 60 Cal. App. 4th 757, 760, 70 Cal. Rptr. 2d
571, 573 (Cal. Ct. App. 1998) (“We conclude [that Smith’s] testimony on
hedonic damages was inadmissible as a matter of law and its admission
was prejudicial.”); Scharrel v. Wal-Mart Stores, 949 P.2d 89, 92 (Colo.
App. 1997) (holding that testimony concerning hedonic damages is inad-
missible under Colorado law); Montalvo v. Lapez, 77 Haw. 282, 303-04,
884 P.2d 345, 366-67 (1994) (affirming trial court’s exclusion of hedonic
damages evidence); Fetzer v. Wood, 211 Ill. App. 3d 70, 84-86, 569
N.E.2d 1237, 1246-47 (Ill. App. 1991) (affirming the exclusion of Smith’s
testimony); Southlake Limousine & Coach, Inc. v. Brock, 578 N.E.2d 677,
682 (Ind. App. 1991) (holding that Smith’s testimony on hedonic damages
“invade[d] the province of the jury”); Longman v. Allstate Ins. Co., 635
So. 2d 343, 355 (La. App. 1994) (holding that trial court did not abuse its
discretion in barring Smith’s testimony); Anderson v. Neb. Dep’t of Soc.
Servs., 248 Neb. 651, 664-71, 538 N.W.2d 732, 741-45 (1995) (reversing
damages award based on admission of Smith’s testimony); Wilt v.
Buracker, 191 W.Va. 39, 50, 443 S.E.2d 196, 207 (1993) (“[W]e conclude
that the loss of enjoyment of life resulting from a permanent injury is part
of the general measure of damages . . . and is not subject to an economic
calculation.”); see also Smith, 214 F.3d at 1245 (inventorying additional
cases where Smith’s testimony was excluded).
DORN v. BURLINGTON NORTHERN SANTA FE 1607
Smith testified to a value for what he called “hedonic dam-
ages,” and what is commonly called in tort law jury instruc-
tions “loss of enjoyment of life.” His methodology was to use
government statistics to determine what risk premium
employees demand to work in riskier jobs as opposed to the
less risky jobs they could get with the same credentials, what
people pay for safer equipment and consumer goods as com-
pared with less safe ones, what people spend on government-
required safety equipment, what government spends on pro-
grams that reduce risk of death, and what government regula-
tions require people to spend on reduction of risk. He came
up with a figure for loss of enjoyment of life for an average
person.
This methodology may have some utility. It may be infor-
mative to a jury to know what people spend voluntarily out
of their own pockets to reduce their own chances of death.
The figure Smith arrived at gives some finitude to a question
that can sound like a probe into the infinite.
The usefulness of Smith’s testimony, however, was
reduced because he averaged this figure with other estimates,
likely to be much higher, and not at all informative about how
much people value their own enjoyment of life. That a gov-
ernment safety program costs a certain amount per life saved,
or that the government requires purchase of a certain kind of
safety equipment, may suggest a collective policy judgment
the government has made, or may represent a policy selected
for reasons other than the cost-benefit analysis “hedonic anal-
ysis” implies, or even a mistaken policy. The admissibility of
testimony such as that given by Smith concerning hedonic
damages is committed to the district court’s sound discretion.
Smith purported to be telling the jury the value that people
placed on the enjoyment of life, but he did not give the jurors
that figure. Instead he gave them a figure that combined the
value that people place on their own lives with the expenses
of, or caused by, government safety programs. Because we
1608 DORN v. BURLINGTON NORTHERN SANTA FE
reverse below regarding Ireland’s testimony, we need not
reach a conclusion on whether the district court abused its dis-
cretion in admitting Smith’s testimony.
c. Admissibility of Ireland’s Testimony
Burlington maintains that the district court committed
reversible error by excluding Ireland’s testimony, which
would have discredited Smith’s opinions concerning hedonic
damages. Although the standard for reviewing this issue is
rather deferential, see White v. Ford Motor Co., 312 F.3d 998,
1006 (9th Cir. 2002) (admissibility of expert testimony is
reviewed for an abuse of discretion), there is merit to Burling-
ton’s position.
[9] The Supreme Court in Daubert v. Merrell Dow Phar-
maceuticals, Inc., was not overly concerned about the pros-
pect that some dubious scientific theories may pass the
gatekeeper and reach the jury under the liberal standard of
admissibility set forth in that opinion; indeed, the Court said,
“Vigorous cross-examination, presentation of contrary evi-
dence, and careful instruction on the burden of proof are the
traditional and appropriate means of attacking shaky but
admissible evidence.” 509 U.S. 579, 596 (1993). The Court
went on to note that a district court’s initial gatekeeping
choice to allow an expert’s opinion testimony does not pre-
vent that same district court from deciding that the opinion is
not scientifically sound after the expert has shared his or her
opinions with the jury. Id.[10] This reasoning suggests that a district court, though
not compelled to do so, may change its mind regarding the
admissibility of one expert’s opinions after a competing
expert offers testimony challenging the first expert’s shaky
theories. Moreover, we have held that the “[a]uthority to
determine the victor in such a ‘battle of expert witnesses’ is
properly reposed in the jury.” Humetrix, Inc. v. Gemplus
S.C.A., 268 F.3d 910, 919 (9th Cir. 2001). Consequently, “the
DORN v. BURLINGTON NORTHERN SANTA FE 1609
reasonableness of the assumptions underlying the experts’ . . .
analysis, [or] criticisms of an expert’s method of calculation
[are] matter[s] for the jury’s consideration in weighing that
evidence.” Id. (third alteration in original) (citations omitted).
Burlington’s position is further supported by commentators
and other persuasive authorities, one of which explains:
A trial court’s determination that the proffered testi-
mony of one expert witness is reliable and helpful
does not necessarily mean that the contradictory tes-
timony of another witness, concerning the same sub-
ject matter but using a different methodology, is not
also reliable and helpful.
...
. . . If two contradictory expert witnesses [can
offer testimony that is reliable and helpful], both are
admissible, and it is the function of the finder of fact,
not the trial court, to determine which is the more
trustworthy and credible.
Weinstein’s Federal Evidence § 702.05[3], at 702-80.12 to
702-80.13 (emphasis added); see also Jahn v. Equine Servs.,
PSC, 233 F.3d 382, 391 (6th Cir. 2000) (“[T]he district court
apparently weighed the pathologist’s testimony against Jahn’s
expert[s] . . . [and] found the opinions of [Jahn’s experts] sus-
pect because they contradicted that of the pathologist. But . . .
determining which is more credible should be left for the
finder of fact and should not be considered when ruling on . . .
admissibility.”).
[11] We conclude that it was error for the district court to
bar Ireland’s testimony.
d. The Error was Prejudicial
Plaintiff claims that the jury did not award hedonic dam-
ages to her in any event; ergo, the district court’s decisions on
1610 DORN v. BURLINGTON NORTHERN SANTA FE
hedonic-damages evidence were harmless because Smith’s
uncontested opinions did not impact the verdict. The record
does not support this position.
Plaintiff asked the jury to award $7,799 for Dorn’s funeral
expenses, $1,711,527 for lost income and benefits, and
$3,300,000 for hedonic damages. By way of a special verdict,
the jury awarded plaintiff $1,000,000 in wrongful-death dam-
ages and $1,008,000 in survivorship damages: however, the
verdict form provides no further insight into the calculations
of those sums.
[12] Mathematically, the survivorship damages could be
construed to resemble the funeral expenses combined with
some generous measure of lost income and benefits, without
any award of hedonic damages, but such an interpretation
would be founded on conjecture. By the same token, the
awards could be taken as including some measure of hedonic
damages, but such a calculation would also be speculative.
Since both propositions are equally conjectural, we are unable
to say “that the jury’s verdict is more probably than not
untainted by the error.” Abromson v. Am. Pac. Corp., 114
F.3d 898, 903 (9th Cir. 1997). Accordingly, we cannot agree
with plaintiff that the error was harmless.
5. Refusing the Corporate Responsibility Instruction
According to Burlington, the district court erred in refusing
to instruct the jury that punitive damages could only be
awarded under certain circumstances that are listed in the
Restatement (Second) of Torts § 909 (1979). We will not
reverse a verdict based on a district court’s refusal to instruct
the jury in a manner requested by one of the parties unless the
district court abused its discretion and the absence of the
requested instruction amounts to prejudicial error. See White,
312 F.3d at 1012.
The instruction requested by Burlington would have
explained that punitive damages are appropriate only where
DORN v. BURLINGTON NORTHERN SANTA FE 1611
the corporation, acting through its management or a manage-
rial employee, either committed, authorized or ratified the act
or omission, or if the non-managerial employee who commit-
ted the act or omission was unfit and the corporation was
reckless in employing that individual. The problem that Bur-
lington faces here is the lack of any evidence indicating that
a non-managerial employee decided against realigning the
crossing, and the existence of sufficient evidence to infer that
managerial employees knew of the danger and declined to
take responsive measures. In light of such evidence, it does
not appear that Burlington was prejudiced by the district court
refusing the instruction. Because we cannot predict what evi-
dence might be presented by the parties on retrial, we decline
to hold whether this instruction would be appropriate at that
point.
6. Review of the Punitive Damages Award
Burlington does not argue that there was insufficient evi-
dence at trial to support the jury’s determinations that Bur-
lington either had knowledge of facts, or intentionally
disregarded facts, that created a strong probability of harm to
Dorn, and that Burlington deliberately acted with indifference
to that circumstance. Indeed, the prior accidents at the site
would appear to support such an inference. Instead, Burling-
ton’s objections are limited to the district court’s refusal to
give a certain instruction on punitive damages and the district
court’s review of the award. We decline to address these
claims as our rulings on the private character of the gravel
road, the limitations on the testimony of Officer Wiesnewski,
the limitations on Burlington’s attempt to impeach Dr. Berg’s
testimony, and the exclusion of Ireland’s testimony (assuming
that hedonic damages are available in Montana), require a
new trial both on liability and damages.
IV. Conclusion
[13] We hold that the cumulative errors described above
mandate a new trial in this action, both on liability and dam-
1612 DORN v. BURLINGTON NORTHERN SANTA FE
ages. The judgment of the district court is REVERSED and
this case is REMANDED for further proceedings consistent
with this opinion.