James Norvell v. Bnsf Railway Company

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 8 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES NORVELL, No. 22-35373
Plaintiff-Appellant, D.C. No. 3:17-cv-05683-BHS
v.
MEMORANDUM*
BNSF RAILWAY COMPANY, a Delaware
corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Argued and Submitted April 14, 2023
Seattle, Washington
Before: McKEOWN and DESAI, Circuit Judges, and SILVER,** District Judge.
James Norvell appeals from the entry of judgment in favor of BNSF
Railway Company after a jury trial. We have jurisdiction pursuant to 28 U.S.C.
§ 1291 and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Roslyn O. Silver, United States District Judge for the
District of Arizona, sitting by designation.
We “review de novo whether [jury] instructions accurately state the law.”
Skidmore as Tr. for Randy Craig Wolfe Tr. v. Led Zeppelin, 952 F.3d 1051, 1065
(9th Cir. 2020) (en banc). We review the district court’s decision to not impose
discovery sanctions for abuse of discretion. Yeti by Molly, Ltd. v. Deckers Outdoor
Corp., 259 F.3d 1101, 1106 (9th Cir. 2001).
Norvell objected to a portion of Jury Instruction 13. That instruction
provided, in relevant part,
It is unlawful to terminate an employee for performing a public duty.
There is a public policy and duty in favor of taking swift action to
save human life regardless of whether such action violates a company
rule. A company may take into consideration whether an
individual’s actions created the potentially harmful situation
when determining appropriate action.
Norvell argues the bolded sentence was a misstatement of Washington law that
created an improper defense and misallocated the burden of proof. However,
Instruction 13, read as a whole, neither created an improper defense nor shifted the
burden of proof. See Hawthorne Sav. F.S.B. v. Reliance Ins. Co. of Ill., 421 F.3d
835, 858 (9th Cir. 2005), amended, 433 F.3d 1089 (9th Cir. 2006) (“[W]e read jury
instructions as a whole to determine whether they are accurate.”). Instead,
Instruction 13 correctly stated that Washington law allows an employer to consider
an employee’s misconduct leading up to the need for emergency action. In a
related context, the Washington Supreme Court has recognized that an employer
may terminate an employee for misconduct even if a closely connected event
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would not be a valid basis for termination. Wilmot v. Kaiser Aluminum & Chem.
Corp., 821 P.2d 18, 32 (Wash. 1991) (noting that an employer could terminate an
employee for failing “to observe health and safety standards” but could not
terminate the employee for seeking workers’ compensation benefits based on an
injury stemming from misconduct). Norvell has cited no authority establishing
that Washington law prohibits an employer from terminating an employee because
of misconduct merely because that misconduct preceded the employee’s actions
that would not be a permissible basis for termination.
Norvell also argues the district court erred in allowing BNSF’s expert, Brian
Heikkila, to offer opinions allegedly beyond what was disclosed in his expert
reports. According to Norvell, Heikkila was allowed to testify about the train’s
“black box data” despite Heikkila’s expert reports not disclosing any opinions
regarding that data. Norvell did not depose Heikkila to identify what he might say
at trial. Even if Heikkila’s opinions were not disclosed, his testimony was still
properly admitted if the failure to disclose was “substantially justified or
harmless.” Yeti by Molly, Ltd., 259 F.3d at 1106.
Heikkila’s allegedly undisclosed opinions were similar to testimony from
other witnesses. Moreover, the events reflected in the “black box data” and
recounted by Heikkila were, in large part, undisputed. Thus, any nondisclosure
was harmless, and the district court did not abuse its discretion in declining to
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exclude Heikkila’s opinions. See id. (noting that district courts have “particularly
wide latitude” when determining whether to impose discovery sanctions).
AFFIRMED.
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