Mark Spotted Horse v. BNSF Railway

May 29 2015
DA 14-0257
Case Number: DA 14-0257
IN THE SUPREME COURT OF THE STATE OF MONTANA
2015 MT 148
MARK SPOTTED HORSE,
Plaintiff and Appellant,
v.
BNSF RAILWAY COMPANY,
Defendant and Appellee.
APPEAL FROM: District Court of the Eighth Judicial District,
In and For the County of Cascade, Cause No. BDV 10-421
Honorable Julie Macek, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
James T. Towe, Kimberly L. Towe, Towe & Fitzpatrick, PLLP, Missoula,
Montana
James Ferguson, Chester H. Lauck, III, Law Office of H. Chris Christy,
North Little Rock, Arkansas
For Appellee:
Scott M. Stearns, Christopher L. Decker, Boone Karlberg P.C., Missoula,
Montana
Submitted on Briefs: January 14, 2015
Decided: May 29, 2015
Filed:
__________________________________________
Clerk
Justice Patricia Cotter delivered the Opinion of the Court.
¶1 Mark Spotted Horse appeals from a jury verdict and judgment rendered in favor of
BNSF Railway Company in the Eighth Judicial District Court, Cascade County.
¶2 Spotted Horse presents four issues on appeal. Because we reverse and remand, we
need address only two issues, which we restate as follows:
1. Whether the District Court abused its discretion in declining to grant Spotted
Horse’s request for a default judgment based on the spoliation of video footage
taken at BNSF’s Diesel Shop on the day Spotted Horse was injured.
2. Whether the District Court abused its discretion when it instructed the jury as to
BNSF’s duty of care in a FELA action.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 On April 28, 2010, Mark Spotted Horse, a BNSF Railway Company (BNSF)
machinist, filed suit against BNSF alleging negligence under the Federal Employers’
Liability Act, 45 U.S.C. §§ 51-60. Spotted Horse claimed that on September 13, 2009,
while working in BNSF’s Diesel Shop in Havre, Montana, he suffered a disabling injury
when his co-worker Jim Syverson inadvertently lowered a locomotive engine
compartment hatch on his head. Spotted Horse reported the incident to his BNSF
supervisors and was immediately taken to the hospital by BNSF Shop Superintendent
Beau Price. Shortly thereafter, Spotted Horse filed an employee injury report indicating
that the rope used to lower the engine compartment hatch had slipped through Syverson’s
hand. According to the injury report, the hatch then struck Spotted Horse on the top of
his hard hat causing him to suffer headaches and neck pain.
2
¶4 BNSF General Foreman Paul McLeod immediately commenced to investigate and
collect information relative to Spotted Horse’s injuries. In coordination with Price and
General Electric (GE) Senior Site Manager Rob Wood,1 McLeod collected Spotted
Horse’s hard hat, conducted reenactments of the alleged injury, took photographs, and
interviewed and obtained written statements from both Spotted Horse and Syverson.
¶5 At the time of the alleged incident, the Diesel Shop had a digital camera recording
system in place, which consisted of multiple video cameras positioned at various
locations throughout the shop stalls.2 The video cameras ran continuously, recording 24
hours per day, seven days per week, and generated footage that was viewable real-time
on a monitor in the shop supervisor’s office.
¶6 For purposes of investigating injuries and rule violations and implementing
possible disciplinary actions against employees, BNSF personnel routinely requested
copies of video footage by emailing or calling BNSF’s Resource Operation Center
(ROC), located in Fort Worth, Texas. The ROC administers resource protection,
including the preservation of video footage. Absent a video footage request within a
specified period of time, typically 15 to 30 days, the digital recording system
automatically overwrites old video footage with new video footage.
1
In the Havre Diesel Shop, BNSF dealt with two brands of locomotives, including GE
locomotives. Wood, as Senior Site Manager, was responsible for delivering GE locomotives to
BNSF.
2
During his deposition on February 28, 2012, McLeod stated that the Diesel Shop had 17
operating video cameras. The record is unclear, however, as to how many video cameras were in
operation on the date of Spotted Horse’s alleged incident.
3
¶7 Spotted Horse maintains that during a post-incident interview he requested a copy
of the video footage from the shop’s cameras. Later, after his lawsuit was filed, Spotted
Horse made several discovery requests, including a request for the production of videos
and photographs of the work area where the alleged injury occurred. According to
Spotted Horse, BNSF initially produced three photographs, but it never referenced or
provided any video footage. Spotted Horse eventually moved the court for an order to
compel BNSF to answer his discovery requests. BNSF responded that McLeod had
contacted the ROC to request video footage from the two stalls where Spotted Horse was
allegedly injured. However, as stated in BNSF’s response, the ROC informed McLeod
“that the videos overwrite every 15 to 30 days, therefore any video footage from
9/13/2009 no longer exists.” BNSF stated that “[a]fter further inquiry, it was determined
that there is no record of the video being requested in September or October 2009” (the
six weeks following the accident).
¶8 McLeod subsequently acknowledged in a deposition that he had utilized video
recordings for investigations of workers for rule violations as well as in connection with
injuries and was aware that the video recording system would overwrite recordings after
a certain period of time. McLeod testified that on the evening of the incident, he and
Price had “probably watched about 15 minutes” of video footage from one camera
located in the stall purportedly closest in proximity to where the alleged injury occurred.
According to McLeod, he “[a]bsolutely . . . could have requested” a copy of the video
footage. However, McLeod determined “[t]here was no evidence to preserve” because
that particular camera did not capture the area where Spotted Horse and Syverson were
4
working nor did the camera show Spotted Horse’s alleged injury. McLeod stated that he
had not viewed video footage from any other camera in the shop and agreed that other
cameras may have captured Spotted Horse and Syverson performing other acts in the
shop.
¶9 Likewise, in his deposition, Price stated that he watched video footage “once or
twice” with McLeod, but that they “could see nothing there.” BNSF indicated that GE
representative Wood also viewed the video and had reached the same conclusion.
¶10 Although he did not immediately contact BNSF’s claims department regarding the
investigation into Spotted Horse’s alleged injury, McLeod eventually submitted his
findings to BNSF Senior Claims Representative Nancy Ahern. Ahern stated that she was
not aware of any BNSF policy that instructs BNSF supervisors to immediately notify the
claims department so that evidence can be preserved. However, she stated that if she is
apprised of a situation where there is video footage as evidence, she will make a request
from ROC. No such request was made here, as BNSF did not make a timely request to
preserve any of the video footage from any of the cameras in place at the time of the
alleged incident.
¶11 On July 27, 2012, Spotted Horse moved for a default judgment against BNSF on
the issues of liability, causation, and contributory negligence based on the alleged
spoliation of video footage and other discovery abuses. The District Court denied the
motion, but prohibited BNSF from introducing or referring to any testimony or evidence
about the video footage unless Spotted Horse first chose to introduce that information. In
that event, BNSF would be free to tell the jury what the videos ostensibly showed.
5
¶12 A jury trial commenced on December 2, 2013. During trial, both parties
presented testimony and evidence regarding the relevancy and unavailability of the video
footage.
¶13 Among the jury instructions given, Instruction No. 2 stated, in pertinent part:
If it appears that a party intentionally or recklessly destroyed or concealed
evidence favorable to the other party, then you should view any contrary
evidence presented by that party with distrust.
Additionally, over Spotted Horse’s objection, the district court provided Instruction No.
11 concerning BNSF’s duty of care, which stated the following:
BNSF was not obligated to eliminate all risks in the work place; it was only
obligated to eliminate unreasonable risks.
¶14 On December 10, 2013, the jury found in favor of BNSF and the case was
dismissed with prejudice. Spotted Horse subsequently moved for a new trial, which the
District Court denied. Spotted Horse appeals.
STANDARDS OF REVIEW
¶15 We review a District Court’s decision to impose or decline to impose sanctions for
an abuse of discretion. Schuff v. A.T. Klemens & Son, 2000 MT 357, ¶ 26, 303 Mont.
274, 16 P.3d 1002. In doing so, we generally defer to the district court because it is in the
best position to determine both whether the party in question has disregarded the
opponent’s rights, and which sanctions are most appropriate. Richardson v. State, 2006
MT 43, ¶ 21, 331 Mont. 231, 130 P.3d 634. In determining whether the trial court abused
its discretion, the question is not whether the reviewing court agrees with the trial court,
but rather whether the trial court acted arbitrarily without the employment of
6
conscientious judgment or exceeded the bounds of reason, in view of all the
circumstances. Schuff, ¶ 27.
¶16 We review for an abuse of discretion whether the district court correctly instructed
the jury. Peterson v. St. Paul Fire & Marine Ins. Co., 2010 MT 187, ¶ 22, 357 Mont.
293, 239 P.3d 904. “[W]hile a district court has broad discretion to formulate jury
instructions, that discretion is limited by the overriding principle that jury instructions
must fully and fairly instruct the jury regarding the applicable law.” Peterson, ¶ 22
(quoting Tarlton v. Kaufman, 2008 MT 462, ¶ 19, 348 Mont. 178, 199 P.3d 263) (internal
quotation marks omitted). In reviewing whether a particular instruction was properly
given, “we consider the instruction in its entirety, as well as in connection with the other
instructions given and with the evidence introduced at trial.” Tarlton, ¶ 19 (quoting
Murphy Homes, Inc. v. Muller, 2007 MT 140, ¶ 74, 337 Mont. 411, 162 P.3d 106).
DISCUSSION
¶17 Issue 1: Whether the District Court abused its discretion in declining to grant
Spotted Horse’s request for a default judgment based on the spoliation of video footage
taken at BNSF’s Diesel Shop on the day Spotted Horse was injured.
¶18 Spotted Horse argues that the District Court abused its discretion in refusing to
enter default judgment against BNSF for spoliation of the Diesel Shop’s video footage
taken on the day of Spotted Horse’s alleged injury. Spotted Horse contends that BNSF’s
intentional destruction of video footage resulted in irreparable prejudice and forestalled
any means to a fair resolution of his claim. Under the circumstances, Spotted Horse
insists the only adequate sanction was an entry of default judgment against BNSF. BNSF
counters that its actions were not intentional or committed in bad faith and further
7
maintains that Spotted Horse did not suffer prejudice because the video footage did not
capture any of the alleged events.
¶19 In its denial of Spotted Horse’s motion for default judgment, the District Court
concluded that Spotted Horse had failed to present sufficient evidence to warrant “the
most drastic of all sanctions, default judgment.” As a remedial measure, the court
prohibited BNSF from introducing or referring to any testimony or evidence that
McLeod, Price, and Wood had watched the video footage and determined that the alleged
incident was not viewable, reasoning that “BNSF should not be allowed to benefit by its
failure to preserve the video footage.” However, the court concluded that if Spotted
Horse “tactical[ly]” chose to present information about the videos to the jury, he would
forego the court’s protection. In addition, the district court utilized a portion of
Instruction No. 2 as an adverse instruction. Against this backdrop, we turn to the
question of whether the District Court abused its discretion in failing to impose a default
judgment.
¶20 District courts “are well equipped under the Montana Rules of Civil Procedure to
address the problem [of spoliation of evidence] as it occurs and deal with it accordingly,
even entering default when the circumstances justify such relief.” Oliver v. Stimson
Lumber Co., 1999 MT 328, ¶ 32, 297 Mont. 336, 993 P.2d 11. Under certain
circumstances, this Court has upheld or imposed default judgment as an appropriate
sanction for discovery abuses. See e.g., Richardson, ¶¶ 65, 68 (default judgment
appropriate where the State’s “pattern of willful and bad faith conduct” amounted to a
“blatant and systemic” abuse of the discovery process that “undermined the integrity of
8
the entire proceeding”); Culbertson-Froid-Bainville Health Care Corp. v. JP Stevens &
Co. Inc ., 2005 MT 254, ¶ 17, 329 Mont. 38, 122 P.3d 431 (default judgment warranted
where discovery responses were “evasive [and] woefully incomplete” resulting in a
“flagrant, complete and persistent disregard” of court orders and rules of civil procedure);
Schuff, ¶ 81 (affirming imposition of a default judgment for discovery abuses after
defendant acted “willfully and in bad faith shield[ing] Schuff from a clear view of the
truth”); cf. Stokes v. Ford Motor Co., 2013 MT 29, ¶ 20, 368 Mont. 365, 300 P.3d 648
(given that there was no wanton disregard of court orders or an intention to “slow down
discovery,” district court did not abuse its discretion in declining to enter default
judgment).
¶21 We have emphasized that discovery abuses “must no longer be dealt with leniently
and that the transgressors of discovery abuses should be punished rather than encouraged
repeatedly to cooperate.” Schuff, ¶ 70; see also Richardson, ¶ 56. We have further stated
that concerns “related to crowded dockets and the responsibility to maintain fair and
efficient judicial administration have shifted the traditional reluctance to impose
discovery-related sanctions to a judicial intolerance of discovery abuses.” Schuff, ¶ 70
(quoting McKenzie v. Scheeler, 285 Mont. 500, 506, 949 P.2d 1168, 1171 (1997)).
¶22 Although the issue before us relates to the spoliation of video footage before the
initiation of the formal discovery process, the rationale for imposing sanctions on a party
for discovery abuse applies here with equal force. As a sophisticated and recurrent party
to litigation, BNSF is aware of its obligation to preserve evidence. In fact, it has in the
past been subject to complaints from litigants concerning spoliation of evidence, and–as
9
Spotted Horse asserted in the District Court–has previously been admonished in court for
concealing or disposing of evidence.
¶23 For example, in the Thirteenth Judicial District of Montana, the district court
granted the plaintiff’s motion for relief relating to liability and struck BNSF’s defense of
contributory negligence after BNSF improperly disposed of a handset and cord, which
were “key evidence of liability.” Order Granting Relief, Silliker v. BNSF, DV 04-0955,
3-4 (Thirteenth Jud. Dist. Jan. 27, 2010). In granting relief, the court did not find bad
faith, but stated that “BNSF knew of their [sic] duty to secure and retain possession of
evidence” and “without that evidence both Silliker and BNSF would be deprived of the
ability to reconstruct its condition prior to the incident, thereby making proof of either
party’s respective positions impossible.” Order Granting Relief, Silliker v. BNSF, DV
04-0955, 4.
¶24 In Dolan v. BNSF, the Eighth Judicial District Court ordered BNSF to pay the
plaintiff’s attorney fees and associated costs of discovery after finding that BNSF had
failed to be diligent in acquiring information about company vehicles which “existed and
was readily available to [BNSF] at the time the Plaintiff propounded discovery
request[s]” relating to his underlying claims. Order, Dolan v. BNSF, ADV 01-1090(B),
4-5 (Eighth Jud. Dist. Aug. 22, 2003).
¶25 In Schmidt v. BNSF, the same court addressed various discovery-related issues and
abuses. It concluded that BNSF’s “non-disclosure [of email communications, injury
reports, and claims records] is neither isolated nor relatively insignificant” and “yet
another instance in a larger recurring pattern and practice of dilatory and obstructive
10
discovery practices in this and other FELA cases before this Court.” Order Den. BNSF
Mot. for Prot. Orders and Aff. Previously-Imposed Disc. Sanctions on Addt’l Grounds,
Schmidt v. BNSF, CDV-04-152(d), 11 (Eighth Jud. Dist. Ct. Mar. 1, 2006).
¶26 The district court made similar observations and conclusions when it addressed
alleged discovery abuses in a related case, Danielson v. BNSF. “[A]llowing BNSF to
simply claim ‘no harm–no foul’ and to remedy its non-disclosure with belated production
and supplemental discovery by Plaintiff would allow BNSF to unjustly benefit” from its
conduct “without any deterrent to the continuance of this practice.” Order on Misc. Mot.
and Order Imposing Sanctions in re Proof of Negligence and BNSF Vocational Rehab
Program, Danielson v. BNSF, CDV-04-124(d), 16-17 (Eighth Jud. Dist. Ct. Mar. 13,
2006).
¶27 BNSF is a seasoned and sophisticated corporate litigant well aware of its
obligations when responding to workplace violations and employee injuries and
accidents. These obligations include the retention of evidence relevant to injury claims.
In this case, BNSF supervisors took immediate action within minutes of Spotted Horse’s
alleged accident. While Price drove Spotted Horse to the hospital for medical treatment,
BNSF supervisors began gathering and analyzing information related to the incident.
Within hours of the alleged accident, according to testimony, three individuals viewed a
brief portion of the video footage from one camera in the shop stall where Spotted Horse
and Syverson were apparently working. And yet–inexplicably–this and other video
footage from the shop was not retained.
11
¶28 BNSF takes the disconcerting position that the video footage would not have been
useful even if preserved. In making this argument, BNSF relies on the recollection of
three individuals–two of its own employees and one employee of an affiliate–who
purportedly “agreed [the video] showed nothing of significance” and was otherwise “not
relevant.”
¶29 Our rules define relevant evidence as “evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” M. R. Evid. 401. We
reiterate the importance of relevant evidence within the context of cases involving the
spoliation of evidence:
Relevant evidence is critical to the search for the truth. The intentional or
negligent destruction or spoliation of evidence cannot be condoned and
threatens the very integrity of our judicial system. There can be no truth,
fairness, or justice in a civil action where relevant evidence has been
destroyed before trial. Historically, our judicial system has fostered
methods and safeguards to insure that relevant evidence is preserved.
Ultimately, the responsibility rests with both the trial and appellate courts to
insure that the parties to the litigation have a fair opportunity to present
their claims or defenses.
Oliver, ¶ 31.
¶30 We reject the notion that BNSF is entitled to unilaterally determine which
evidence is relevant or valuable when investigating an alleged work-related accident
preceding litigation. Such a decision must be left to the trial court. See State v. Gai,
2012 MT 235, ¶ 15, 366 Mont. 408, 288 P.3d 164 (“the trial judge is tasked with
determining admissibility of evidence”) (citing M. R. Evid. 104); Preston v. Mont.
Eighteenth Judicial Dist. Court, 282 Mont. 200, 208, 936 P.2d 814, 819 (1997)
12
(“discovery requests are to be construed broadly in favor of disclosing any information
tending to lead to admissible evidence. Whether that evidence is admissible is for the
court to decide at trial, not for [the party] to determine at the discovery stage of
proceedings”); see also Patton v. Wal-Mart Stores, Inc., 2013 U.S. Dist. LEXIS 165617,
*14 (D. Nev. Nov. 20, 2013) (“[w]hether ‘nothing’ or ‘something’ was caught on film is
an evidentiary question of relevance” for the court). Interestingly, BNSF chose to collect
and secure Spotted Horse’s hard hat even though McLeod determined the hard hat (like
the video footage) had “no evidence of a significant impact” and “nothing that show[ed]
[him] there was anything that happened to it.”
¶31 The fact that the video footage was destroyed prior to the submission of Spotted
Horse’s claim affords BNSF no relief. As its internal policies contemplate, BNSF clearly
had the means to collect the video footage by simply sending an email or making a
telephone call as it has routinely done for other investigations involving rule violations
and work-place injuries. Whether the spoliation of video footage was a litigation tactic or
inadvertent as BNSF claims, BNSF’s conduct has effectively undermined the “search for
the truth” of what actually transpired on September 13, 2009. See Oliver, ¶ 31; see also
Schuff, ¶ 79 (“‘excusable ignorance’ defense cannot be looked upon with anything less
than disfavor”).
¶32 Even if we were to accept BNSF’s contention that the one video camera did not
capture Spotted Horse’s alleged injury, the recordings from this video camera and others
positioned throughout the Diesel Shop could have revealed a wealth of information
relating to the alleged injury–a fact BNSF admitted during pre-trial depositions. For
13
example, the video cameras could have captured the exact timeframe and the activity that
occurred before or after the alleged injury; whether Spotted Horse and Syverson were
carrying particular tools or equipment, including the rope that allegedly slipped through
Syverson’s hands; whether Spotted Horse’s mannerisms or gait appeared altered when he
walked to the computer terminal to report his injury after it occurred; whether, according
to the disputed testimony of BNSF employee Josh Allen, “Spotted Horse drop[ped] down
into a sitting position on the locomotive step” after the alleged incident; or, as BNSF
employee Larry Lund stated, whether Spotted Horse’s claims were “bogus.” Because
this video footage was destroyed, Spotted Horse was left with the impossible task at trial
of accurately recreating that which was irretrievably lost.
¶33 An even more insidious result of the destruction of the evidence was the District
Court’s pre-trial ruling that precluded BNSF from offering evidence that the cameras
showed no accident, unless Spotted Horse opened the door by informing the jury that the
videos had been destroyed. Under the court’s ruling, once Spotted Horse informed the
jury about the destruction of the video evidence, BNSF was then free to tell the jury that
it had observed the video footage and that it did not show that an accident had occurred.
In other words, BNSF was allowed to enjoy the benefit of its destruction of the evidence
by implying to the jury that Spotted Horse’s injury never happened. Thus, BNSF’s
conduct effectively derailed Spotted Horse’s right to have “a fair opportunity to present
[his] claims or defenses.” Oliver, ¶ 31.
¶34 In seeking reversal and a default judgment, Spotted Horse relies in part on Peschel
v. City of Missoula, 664 F. Supp. 2d 1137 (D. Mont. 2009), a case concerning the
14
spoliation of a police vehicle video recording of an arrest allegedly performed with
“unreasonable force,” which later became the subject matter of a civil suit. The Federal
district court had previously determined that the City of Missoula had a duty under
Montana law to preserve video recordings throughout the course of the investigation and
the disposition of the criminal charge and after acquittal, because the prospect of a civil
suit was “reasonably foreseeable.” Peschel, 664 F. Supp. 2d at 1141.
¶35 Countering the plaintiff’s request for default judgment, the City of Missoula
argued that the loss of video evidence did not prejudice the plaintiff because witnesses
were available to testify as to what they observed. Peschel, 664 F. Supp. 2d at 1145. As
an alternative, the City proposed prohibiting “the officers from testifying as to what they
saw in the video.” Peschel, 664 F. Supp. 2d at 1145 (internal quotation marks omitted).
The court found that this “purported sanction would have absolutely no punitive,
deterrent, or remedial value” and would otherwise condone “the spoliation of the best
evidence available to resolve the factual dispute with the greatest accuracy.” Peschel,
664 F. Supp. 2d at 1145.
¶36 The court in Peschel further concluded that the rebuttable presumption created by
an adverse instruction allowing the jury to infer that the video recording would have been
unfavorable to the City “would not sufficiently punish the City for its spoliation nor serve
as a sufficient disincentive to destroy evidence,” otherwise “pitting the evidence of its
officers against the Peschels and the other percipient witnesses–unphased by its
spoliation of the video recording.” Peschel, 664 F. Supp. 2d at 1148. Ultimately, the
court did not allow evidence regarding the spoliation because doing so “would not
15
enhance, but actually degrade, the truth-finding process.” Peschel, 664 F. Supp. 2d at
1148. The court found that the most appropriate sanction was a conclusive finding that
the arresting officers had used unreasonable force. Peschel, 664 F. Supp. 2d at 1145.
¶37 Here, the District Court reasoned that “BNSF should not be allowed to benefit by
its failure to preserve the video footage.” We agree. However, the court then
undermined its assertion by imposing a sanction that placed Spotted Horse in a “lose-
lose” position. If Spotted Horse agreed not to tell the jury that BNSF had destroyed the
video footage, then BNSF would be precluded from telling the jury what its employees
saw on the videos. However, if Spotted Horse told the jury that the videos had been
destroyed, then BNSF employees would be free to tell the jury that the claimed injury
simply did not show up on any cameras. The ultimate effect of the sanction, as observed
in Peschel, did not punish BNSF as the transgressor; rather, it invited BNSF to capitalize
on the destruction of the video footage with its inference that Spotted Horse fabricated his
injury–a focus that “actually degrade[d] the truth-finding process.” See Peschel, 664 F.
Supp. 2d at 1148.
¶38 Although the district court instructed the jury to view BNSF’s evidence “with
distrust” if it appeared that BNSF “intentionally or recklessly destroyed or concealed
evidence favorable to the other party,” as in Peschel, this instruction was an inadequate
cure for the prejudice to Spotted Horse.
¶39 Although BNSF clearly knows better than to dispose of video footage of an
accident scene, it is simply not possible to determine whether the destruction of the
evidence was intentional or inadvertent. Given this circumstance, we do not find that the
16
District Court’s refusal to grant Spotted Horse’s request for a default judgment was an
abuse of discretion. However, we do conclude that the District Court abused its
discretion when it declined to impose a meaningful sanction on the railroad, and instead
fashioned a ruling that ultimately rewarded rather than punished BNSF for its destruction
of evidence. Accordingly, we reverse the judgment of the District Court and remand this
matter for a new trial, at which time the court shall fashion a sanction that is
commensurate with the significance of BNSF’s actions in allowing the video footage to
be destroyed, and which will satisfy the remedial and deterrent goals of sanctions for the
spoliation of evidence.
¶40 Issue 2: Whether the District Court abused its discretion when it instructed the
jury as to BNSF’s duty of care in a FELA action.
¶41 Spotted Horse also contends that the court committed error by giving an improper
jury instruction concerning BNSF’s duty of care under FELA. Jury Instruction No. 11
provided:
BNSF was not obligated to eliminate all risks in the work place; it was only
obligated to eliminate unreasonable risks.
¶42 We agree that the language in Instruction No. 11 incorrectly states BNSF’s duty of
care and seemingly contradicts the language found in Jury Instruction No. 10, to which
neither party objected and which provided in pertinent part:
Thus, the railroad is negligent if it fails to use reasonable care to provide
railroad workers with a reasonably safe place to work. Reasonable care is
the care that a reasonably prudent person would use in the conduct of his,
her, or its own affairs in order to avoid injury or damage to his, her, or its
own person or property as well as the person or property of others. The
amount of care or caution required of a reasonably prudent person
17
varies according to the dangers known or reasonably foreseeable to the
person. Negligence may consist of action or inaction.
(Emphasis added.)
¶43 We conclude that on remand, Instruction No. 11 shall not be given.
CONCLUSION
¶44 We reverse and remand for further proceedings consistent with this opinion.
/S/ PATRICIA COTTER
We Concur:
/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ JIM RICE
Justice Michael E Wheat, specially concurring.
¶45 I agree with the Court’s decision to reverse the judgment of the District Court and
to order more serious spoliation sanctions against BNSF on remand. I would, however,
remand to the District Court with an instruction to enter default judgment, because the
audacity of the spoliation in this case warrants more than a mere negative inference in
favor of Spotted Horse.
¶46 This is not a case where the plaintiff slept on his claim. Spotted Horse provided
prompt notice of his intention to bring suit and a prompt request for the surveillance
video that would have resolved several factual disputes and all but proven a number of
18
the elements of his claim. This is also not a case where the information was lost
mistakenly or inadvertently. The destruction of the video was the result of knowing,
culpable conduct. BNSF was on notice of Spotted Horse’s intention to sue. It knew the
value of the video, and it knew that the video was exclusively in its control. Taking
advantage of this control, BNSF not only let the video be destroyed but also destroyed the
best evidence of what the video would have shown by moving its surveillance cameras.
Meanwhile, BNSF took special care to preserve other particular items of evidence that it
thought were “perishable,” “one of a kind,” or “critical.”
¶47 Such knowing, calculated, and prejudicial spoliation of evidence demands default
judgment. It is the obligation of every Montana court to protect the integrity of the
judicial system and to ensure proper administration of justice. See Oliver v. Stimson
Lumber Co., 1999 MT 328, ¶ 31, 297 Mont. 336, 993 P.2d 11. Usually this means that
there is a presumption in favor of resolution of controversies on their merits. But, in
cases where a party maliciously misuses our judicial system, this presumption is forfeited
and the obligation to protect the judicial system instead requires courts to remedy the
misuse, to punish the misuser, and to deter future misuse. See Richardson v. State, 2006
MT 43, ¶ 68, 331 Mont. 231, 130 P.3d 634; Schuff v. A.T. Klemens & Sons, 2000 MT
357, ¶ 81, 303 Mont. 274, 16 P.3d 1002; Oliver, ¶ 34. Spoliation is an especially
pernicious form of misuse, and this Court and other Montana courts should not shy from
responding with commensurate sanctions.
19
¶48 Spoliation has a profound effect on our judicial system. “Aside perhaps from
perjury, no act serves to threaten the integrity of the judicial process more than the
spoliation of evidence. Our adversarial process is designed to tolerate human failings –
erring judges can be reversed, uncooperative counsel can be shepherded, and recalcitrant
witnesses compelled to testify. But, when critical documents go missing, judges and
litigants alike descend into a world of ad hoc[] . . . half measures – and our civil justice
system suffers.” Margaret M. Koesel et al., Spoliation of Evidence: Sanctions and
Remedies for Destruction of Evidence in Civil Litigation 1 (3d ed., 2013); see also
Charles R. Nesson, Incentives to Spoliate Evidence in Civil Litigation: The Need for
Vigorous Judicial Action, 13 Cardozo L. Rev. 793, 793 (1991) (“By its nature spoliation
is invisible. The evidence may have been unknown to anyone but the spoliator. The act
itself need leave no trace. . . . Spoliation is an effective, and, I believe, a growing
litigation practice which threatens to undermine the integrity of civil trial process.”).
“There can be no truth, fairness, or justice in a civil action where relevant evidence has
been destroyed before trial.” Oliver, ¶ 31.
¶49 Unfortunately, spoliation and other obstructive techniques have become much too
commonplace. See, e.g., Bilesky v. Shopko Stores Operating Co., LLC, 2014 MT 300,
¶¶ 6-8, 377 Mont. 58, 338 P.3d 76; Order Granting Relief, Silliker v. BNSF,
Jan. 27, 2010, DV 04-0955 (Mont. 13th Dist. Ct.); Order, Dolan v. BNSF, Aug. 22, 2003,
ADV-01-1090(B) (Mont. 8th Dist. Ct.); Danielson v. BNSF, March 13, 2006,
CDV-04-124(d) (Mont. 8th Dist. Ct.); Schmidt v. BNSF, March 1, 2006, CDV-04-252(d)
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(Mont. 8th Dist. Ct.); Koesel et al., supra, at xvi-xvii. Commentators have advocated
vigorous judicial action in response, e.g. Nesson, supra, at 805-07, and this Court has
recognized the need to address the problem. Oliver, ¶¶ 31-34, 40.
¶50 The Court even went so far as to recognize a new tort for third party spoliation,
noting that it is this Court’s responsibility to ensure that our judicial system provides a
fair opportunity for litigants to present their claims and defenses. Oliver, ¶¶ 31, 34, 40.
The Court did not make that tort available against parties to the litigation, because it
reasoned that the strength and breadth of the remedies available to Montana courts, which
include default judgment, was already sufficient. Oliver, ¶ 32. While this is true –
Montana courts do have a sufficient set of available remedies to adequately address
spoliation – the remedies are meaningless unless they are actually used and effectively
crafted.
¶51 As such, Montana courts should not shrink from granting default judgment where,
as here, spoliation is willful, in bad faith, or knowingly committed in order to obscure the
truth and to prevent accurate decision making. By failing to take such action when it is
warranted, we fail the spoliation victim and our system of justice, while at the same time
rewarding the spoliator with the result he or she sought: an advantage in litigation. By
failing to take such action, we set the stage with perverse incentives and encourage
further spoliation. Until we are willing to respond with sanctions commensurate to the
damage caused by intentional spoliation – that is, with default judgment – the reward
from destroying evidence will continue to outweigh the risk.
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¶52 The District Court’s decision did not effectively serve to remedy BNSF’s
spoliation, to punish BNSF, or to dissuade others from committing similar acts. BNSF
still comes out ahead, served by its misconduct. Again, this case is one where the
spoliator, BNSF, acted knowingly and purposely to destroy evidence. In response to such
actions, I would instruct the District Court to order default judgment in favor of Spotted
Horse on remand.
/S/ MICHAEL E WHEAT
Justice Laurie McKinnon, dissenting.
¶53 I agree with the Court’s pronouncement that BNSF, or indeed any litigant, is not
“entitled to unilaterally determine which evidence is relevant or valuable . . . .” Opinion,
¶ 30. Nevertheless, I am troubled by our decision today, in which we sanction BNSF
based not on its conduct in the case before us, but on its alleged prior bad acts in
completely unrelated past litigation. Opinion, ¶¶ 22-26.
¶54 I believe our inquiry should be limited to the circumstances before us and not
focused on punishing a litigant we perceive to be a bad actor. The Court primarily
premises its conclusion that BNSF’s conduct was sanctionable on the fact that BNSF has
previously been sanctioned for discovery abuses, rather than on an analysis of the record
in this case. While I do not mean to say that we—or trial courts and opposing parties, for
that matter—should put up a façade of naiveté in the face of systemic abuses, I do think
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we should honor the basic concept that a party appearing before this Court should not be
pre-judged on the basis of an allegedly bad character. See M. R. Evid. 404. Nor should a
party be exempted from receiving the benefit of this principle because that party is a
corporate entity rather than an individual.
¶55 A review of the record in the case before us is sufficient to demonstrate that
BNSF’s conduct was inappropriate. Disturbingly, Ahern stated in her deposition that
BNSF has no policy requiring supervisors to promptly notify the claims department of
incidents; that she has received no formal training regarding the collection and
preservation of evidence; and that she was not aware of any BNSF policy regarding the
preservation of evidence relevant to an injury claim. Price characterized his shop’s
practice regarding video footage as follows: “[I]f we think it’s useful or of value or has
any bearing on the incident we are investigating, we would make the request of the
resource protection desk to save a particular part of that video.”
¶56 Consistent with this practice, after reviewing about 15 minutes of footage from
one camera, Price and McLeod made the independent determination, absent consultation
with any claims specialist or legal counsel, that the footage contained “no evidence to
preserve.” At the very least, preservation of the footage would have conclusively
determined whether the accident was recorded. Further, McLeod acknowledged that
there were many other cameras in the shop that may have shown Spotted Horse before or
after the accident, or personnel in the area surrounding the stall where the accident took
place. The footage from these other cameras was never reviewed at all. BNSF’s lack of
any policy or training whatsoever addressing the preservation of evidentiary materials
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directly resulted in the destruction of potentially relevant evidence prior to trial. As the
Court notes, “The intentional or negligent destruction or spoliation of evidence cannot be
condoned and threatens the very integrity of our judicial system.” Opinion, ¶ 29 (quoting
Oliver v. Stimson Lumber Co., 1999 MT 328, ¶ 31, 297 Mont. 336, 993 P.2d 11). I have
no trouble concluding that BNSF’s failure to adopt a reasonable policy—or any policy—
for the preservation of evidence regarding workplace injuries constituted, in this case,
negligent spoliation of evidence, if not more. The depositions filed in this case are
sufficient to lead to this conclusion.
¶57 Although I would conclude that BNSF’s conduct merited the imposition of
sanctions, I am mindful that we review the District Court’s decision regarding the
appropriate form of sanctions for an abuse of discretion. Richardson v. State, 2006 MT
43, ¶ 21, 331 Mont. 231, 130 P.3d 634. I believe the District Court attempted in good
faith to neutralize the effect of BNSF’s destruction of evidence, while recognizing that a
trial on the merits is generally favored over a default judgment. Brilz v. Metro. Gen. Ins.
Co., 2012 MT 184, ¶ 15, 366 Mont. 78, 285 P.3d 494 (citing Schmitz v. Vasquez,
1998 MT 314, ¶ 27, 292 Mont. 164, 970 P.2d 1039). The Court assumes that if BNSF
employees were permitted to testify that the video footage did not show the accident, this
would establish an inference in the minds of the jury that the accident did not occur.
Opinion, ¶ 33. While this would be one possible interpretation of that testimony, it is not
necessarily the only interpretation, or even the most logical. The depositions are clear
that the camera angle was insufficient to show the area where the accident reportedly
occurred. This fact does not imply that the accident did not occur. Cross-examination of
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witnesses for BNSF should allow Spotted Horse to draw out details of their failure to
preserve, or even fully review, the evidence available. The testimony could just as likely
result in the negative inference that BNSF engaged in a cover-up.
¶58 While stronger sanctions were certainly available and may have been appropriate,
the decision regarding the suitable form of sanctions was left to the discretion of the
District Court. We fail to recognize the distinction between a trial court’s discretion in
assessing the propriety of sanctions and an appellate court’s role in reviewing the
exercise of that discretion when we cite the opinions of federal district courts on the
issue. Opinion, ¶¶ 34-37 (citing Peschel v. City of Missoula, 664 F. Supp. 2d 1137
(D. Mont. 2009)). Although this Court, if vested with the discretion to make an initial
determination of the form of sanctions, may have exercised that discretion differently
than the District Court in this instance, I am not convinced that the District Court abused
its discretion by failing to impose stronger sanctions.
¶59 Finally, I believe the Court’s analysis of Jury Instruction No. 11 is insufficient. It
is not readily apparent on the face of the instructions that an obligation “to eliminate
unreasonable risks” is inconsistent with or contradicts the duty of a reasonable person to
use reasonable care regarding reasonably foreseeable risks, stated in Jury Instruction
No. 10. The instructions, taken as a whole, adequately instructed the jury regarding an
employer’s duty to exercise reasonable care when it knows or should know of a potential
hazard in the workplace. See Gallose v. Long Island R.R. Co., 878 F.2d 80, 85 (2d Cir.
1989); Tobin v. Natl. R.R. Passenger Corp., 677 F. Supp. 674, 675 (D. Mass. 1988).
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¶60 For the foregoing reasons, I dissent and would affirm the judgment of the District
Court.
/S/ LAURIE McKINNON
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