IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
January 19, 2010 Session
LAURA JAN MELTON v. BNSF RAILWAY COMPANY
Direct Appeal from the Circuit Court for Shelby County
No. CT-005244-06 Div. V Kay S. Robilio, Judge
No. W2009-00283-COA-R3-CV - Filed February 22, 2010
This is an appeal from a jury verdict in favor of the Appellee in a case based on the Federal
Employer’s Liability Act,45 U.S.C. § 51 et seq. Appellee filed this case as the widow and
personal representative of her husband, who died as a result of injuries he sustained while
working for the Appellant. Appellant appeals, arguing that the trial court erred in not
granting it a directed verdict, in not granting its motion for new trial, in making several
evidentiary rulings during the trial, and in not granting its motions for mistrial. We affirm
the trial court’s denial of the Appellant’s motions for directed verdict, finding that the
Appellee presented sufficient proof to create a question for the jury. However, finding that
the trial court erred in allowing the Appellant’s expert to be questioned on a non-testifying
expert’s deposition, and that the jury was more likely than not guided by prejudice, passion,
and bias, we reverse the trial court’s decision denying Appellant’s motion for new trial.
Further, finding material facts in dispute, we reverse in part and affirm in part the trial court’s
decision on Appellant’s motion for summary judgment. Reversed in part, affirmed in part
and remanded.
Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Circuit Court Affirmed in
Part; Reversed in Part; and Remanded
J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which A LAN E. H IGHERS,
P.J.,W.S. and D AVID R. F ARMER, J., joined.
William C. Spencer, John G. Wheeler, William C. Spencer, Jr., Memphis, Tennessee and
Wayne L. Robbins, Jr., Fort Worth, TX, for the appellant, BNSF Railway Company.
John A. Day, Laura W. Bishop, Brentwood, TN, Don R. Riddle, Houston, TX and Tom R.
Letbetter, George R. Payne, Houston TX, for the appellee, Laura Jan Melton.1
OPINION
On July 11, 2006, Ronald Melton (“Mr. Melton”) was struck by a rail car in the BNSF
Tennessee Yard and died as a result of his injuries. At the time of his death, Mr. Melton was
employed by Appellee, BNSF Railway Company(“BNSF”), as a “carman.” Mr. Melton and
his co-worker, John Carnell (“Mr. Carnell”) had been instructed to locate and repair a rail car
with a bent pin lifter. The car needing repair was located on track 301, a protected track.2
Mr. Melton and Mr. Carnell went to track 2051 (also referred to as Track 51)(“Track 51")
to look for the rail car needing repair. The parties dispute whether Pat Vaiden (“Mr. Vaiden),
a Leadman for BNSF and Mr. Melton’s supervisor, sent Mr. Melton and Mr. Carnell to Track
51 or Track 301.
Track 51 is a “bad order” track, where cars needing repair are sent. The rail cars on
track 51 are “humped” onto the track–that is they are moved down an incline onto track 51,
passing through “retarders,” which reduce the speed, and then roll freely until they are
stopped by the force of gravity or until they come into contact with another car. The section
of track 51 at issue is located in an area of the yard that is sloped on either side and referred
to as the “bowl.”
Mr. Melton drove a BNSF road truck to locate the rail car needing repair. He parked
the road truck between track 301 and track 51 with the rear of the road truck facing south.
Two cars were coupled3 together on track 51, rail car AOK-181556 (“AOK”) and rail car
FURX-824206 (“FURX”), adjacent to where Mr. Melton parked the road truck. There were
several other rail cars north of these two coupled rail cars. Upon exiting the road car, Mr.
Melton told Mr. Carnell to be careful as track 51 was a “live” track. Mr. Melton and Mr.
Carnell then walked in a northerly direction up track 51, looking for the rail car needing
repair. When they could not find it, they decided to return to their truck to call Mr. Vaiden
for more information. Upon reaching the truck, Mr. Melton went towards the driver’s side
and Mr. Carnell went towards the passenger side. After the two parted, Mr. Carnell saw a
1
Attorneys John A. Day and Laura Bishop did not participate in the trial of this case for the appellee,
but first appear in the record on Appellee’s Response to Appellant’s Rule 50.02, 52.02, and 59.02 Motion,
and were the attorneys who appeared at oral argument. Attorneys Don R. Riddle, Tom R. Letbetter, and
George R. Payne were the attorneys of record for the appellee during the trial proceedings and also
participated in this appeal.
2
A protected track is one that has been blocked so that cars will not be moving on it.
3
Coupled refers to when two rail cars are connected together.
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rail car approaching from the south on track 51 and yelled to warn Mr. Melton. The car Mr.
Carnell saw was CEFX-30498(“CEFX”), which had been humped onto track 51. CEFX
collided with FURX causing FURX and AOK to move forward. AOK struck Mr. Melton,
causing his injuries. The parties dispute where exactly Mr. Melton was in relation to his road
truck and the track when he was struck.
Mr. Melton’s wife, Laura Jan Melton (“Mrs. Melton”), Appellee, filed this suit against
BNSF on October 9, 2006, based on the Federal Employer’s Liability Act (“FELA”), 45
U.S.C. § 51 et seq. BNSF answered the complaint on November 14, 2006, denying that it
was negligent and raising as a defense the contributory negligence of Mr. Melton. Mrs.
Melton subsequently, with leave of the court, amended her complaint, and BNSF filed an
amended answer, raising preemption as an additional defense. Again with permission of the
court, Mrs. Melton filed a second amended complaint adding the allegation that BNSF
violated the Code of Federal Regulations, 49 Part 213.37 on vegetation. BNSF filed a second
amended answer denying such violation.
On January 17, 2008, BNSF filed a Motion for Summary Judgment contending that
there were no disputed material facts and that Mrs. Melton’s claims were preempted. On
February 21, 2008 the trial court heard argument on BNSF’s Motion for Summary
Judgment.4 The trial court entered an order on March 6, 2008, granting BNSF’s motion on
the issues of vegetation and ballast5 and denying the motion as to all other issues.
An approximately two and a half week jury trial was held in September 2008. The
jury returned a verdict finding BNSF negligent and Mr. Melton not negligent. The jury
awarded one million dollars in pecuniary damages and four million dollars in damages for
Mr. Melton’s conscious pain, suffering, and mental anguish. A final judgment was entered
on October 9, 2008, reflecting this decision.
BNSF filed a motion pursuant to Tennessee Rule of Civil Procedure 50.02, 52.02 and
59.02, asking the trial court to set aside the verdict and the judgment entered, and to enter
judgment in accordance with BNSF’s previous motions for summary judgment and directed
verdict. BNSF argued that the trial court had erred in not granting summary judgment as
“discovery had revealed no factual basis to support any of plaintiff’s thirty one separate
claims,” and that the plaintiff’s claims were preempted. BNSF further argued that the trial
4
BNSF’s Motion for Summary Judgment was heard and decided by Judge Bailey. It appears from
the record that the case was subsequently transferred to Judge Robilio. Although the parties in their briefs
reference a previous mistrial, the record does not indicate a reason for the transfer.
5
Ballast refers to the rocks and gravel in and around the tracks.
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court had erred in not granting it a directed verdict at the close of Mrs. Melton’s proof and
again when BNSF renewed it’s motion at the close of all proof, as Mrs. Melton has failed to
present any evidence in support of her claims. Also, BNSF requested that the trial court,
pursuant to Tennessee Rule of Civil Procedure 52.02, amend the judgment to reflect Mr.
Melton’s own negligence and to reflect a “more appropriate award of damages.” BNSF also
requested a new trial, contending that the verdict was excessive; the verdict indicated
“passion, prejudice or caprice on the part of the jury”; the verdict was against the clear
weight of the evidence; that the trial court made numerous other errors in ruling on certain
questions asked and comments made by Mrs. Melton’s counsel and other evidentiary issues;
and that the trial court erred in denying BNSF’s multiple motions for mistrial. In the
alternative, BNSF asked for a remittitur.
The trial court held a hearing on BNSF’s motion on December 4, 2008. Prior to
hearing oral arguments the trial court stated that it was denying BNSF’s motion for a new
trial or to set aside the jury verdict. The trial judge went on to explain her decision. The trial
court stated that the jury must not have believed the railroad’s witnesses and that the jurors
probably believed that Mr. Vaiden had given Mr. Melton the understanding that he was going
to “make the phone call to alert the powers that be, that Mr. Melton was going to be in that
area.” The trial court went on to state, “[t]he Court having that rationale that the jurors most
likely felt there was a cover up by the railroad that there was some cover up by the railroad,
their processing of that information.” The trial court then allowed the parties to argue on the
issue of remittitur. Prior to arguing, counsel for BNSF asked for clarification that the trial
court was denying its motion for the reasons stated in the record, and the trial court stated,
“Right, there was a cover up by the railroad.” The parties then proceeded to argue on
remittitur. The trial court then granted BNSF a remittitur reducing the award of damages for
pain and suffering by one million dollars, making a total award of three million dollars for
pain and suffering and reducing the total award from five million dollars to four million
dollars. An order was entered reflecting the trial court’s denial of BNSF’s motion and the
grant of remittitur on January 9, 2009. Mrs. Melton filed a Notice of Acceptance of
Remittitur Under Protest on January 12, 2009. The trial court entered an amended final
judgment reflecting the remittitur on January 16, 2009. BNSF timely filed an appeal on
January 30, 2009.
On appeal BNSF raises the following issues as we restate them:
1. Whether the trial court erred in denying BNSF’s motions for directed verdict and
motion for judgment in accordance with the motion for directed verdict?
2. Whether the trial court erred in denying the defendant’s motion for new trial?
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3. Whether the trial court erred in the admission of evidence, warranting a new trial?
4. Whether the trial court erred in refusing to declare a mistrial?
Mrs. Melton raises one issue for our review:
1. Whether the trial court erred in granting BNSF summary judgment on the issues of
vegetation and ballast? 6
Motion for Directed Verdict
BNSF first contends that the trial court erred when it denied BNSF’s motion for
directed verdict at the close of Mrs. Melton’s evidence and then when BNSF renewed its
motion at the close of all the evidence. The United States Supreme Court has consistently
applied the federal standard in reviewing whether a directed verdict should be granted in a
FELA case tried in state court. Blackburn v. CSX Transp., Inc., No. M2006-01352-COA-
R10-CV, 2008 Tenn. App. LEXIS 336, *27 (Tenn. Ct. App. 2008)(relying on Rogers v.
Missouri Pacific R.R. Co., 352 U.S. 500 (1957); Lavender v. Kurn, 327 U.S. 645 (1946);
and Brady v. Southern Ry. Co., 320 U.S. 476 (1943)). In determining whether to grant a
directed verdict, the trial court must determine “whether, with reason, the conclusion may be
drawn that the negligence of the employer played any part at all in the injury” of the
employee. Rogers, 352 U.S. at 507. Only “where fair-minded jurors cannot honestly differ
whether fault of the employer played any part in the employee’s injury,” may the trial court
enter a directed verdict. Id. at 510.
In reviewing the trial court’s decision not to grant a directed verdict, we use the same
standard the trial judge was required to use, and must determine whether sufficient evidence
was presented to raise a material issue of fact. White v. Burlington Northern Santa Fe Ry.
Co., 364 F.3d 789, 794 (6th Cir. 2004). In making this determination, we must draw all
reasonable inferences in favor of the nonmoving party. Id. We are not to make any
credibility determinations or weigh the evidence, and “must disregard all evidence favorable
to the moving party that the jury is not required to believe.” Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 150 (2000).
When making a claim under FELA, a plaintiff must prove the traditional common-law
elements of negligence: duty, breach, forseeability, and causation. Adams v. CSX Transp.,
Inc., 899 F.2d 536, 539 (6th Cir. 1990). BNSF has a duty to provide its employees with a
6
As required by Tenn. R. App. P. 3, all issues raised on appeal were first raised in the motion for
new trial.
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reasonably safe workplace under FELA. Id. As previously stated by this court:
This does not mean that the railroad has the duty to eliminate all
workplace dangers, but it does have the “duty of exercising
reasonable care to that end.” Van Gorder v. Grand Trunk W.
R.R., Inc., 509 F.3d 265, 269 (6th Cir. 2007) cert. denied, - -
U.S. - -, 129 S.Ct. 489, 172 L.Ed.2d 356 (2008)(citing
Baltimore & Ohio S.W.R. Co. V. Carroll, 280 U.S. 491, 496, 50
S.Ct. 182, 74 L.Ed 566 (1930)). “A railroad breaches its duty to
its employees when it fails to use ordinary care under the
circumstances or fails to do what a reasonably prudent person
would have done under the circumstances to make the working
environment safe.” Id. (citing Tiller v. Atl. C.L.R. Co., 318 U.S.
54, 67, 63 S.Ct. 444, 87 L.Ed. 610 (1943); Aparicio v. Norfolk
& W. Ry., 84 F.3d 803, 811 (6th Cir. 1990). In other words, “a
railroad breaches its duty when it knew, or by the exercise of
due care should have known that prevalent standards of conduct
were inadequate to protect the plaintiff and similarly situated
employees.” Id. at 269-70 (internal quotations omitted).
Jordan v. Burlington Northern Santa Fe Ry. Co., No. W2007-00436-COA-R3-CV, 2009
WL 112561, *8 (Tenn. Ct. App. 2009).
We have reviewed the record in this case and find that the trial court did not err in
refusing to grant BNSF a directed verdict either at the close of Mrs. Melton’s evidence or at
the close of all the evidence. In support of her case, Mrs. Melton offered the testimony of
Mr. Carnell, that track 51 and 301 were an arm’s distance apart, that he and Mr. Melton were
not foul of the track7 , and that in his opinion cars should not be humped onto track 51 when
the men are working in the bowl. Mr. Carnell also testified that he thought he heard Mr.
Vaiden send them to track 51. Mrs. Melton also presented proof that the supervisor was the
one required to call the yardmaster to block out the tracks where men were working and Mr.
Vaiden, the supervisor, admitted having not called the yardmaster himself. Further, Mrs.
Melton presented evidence that the General Code of Operating Rules required that all
unattended cars be secured. The jury heard evidence that the AOK was neither coupled to
another car, nor had a brake applied to it. Additionally, there was testimony that some
employees believed in a general rule that it was safe as long as the employee was clear of the
7
The definition of “foul of the track” is disputed by the parties, but refers to the distance from the
track one must be in order to be safe and clear from moving rail cars. BNSF asserts that foul of the track is
four feet from the rails.
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rails. Mrs. Melton further elicited testimony that BNSF had a company initiative that cars
were not to couple at a speed faster than four miles per hour. Also, the jury heard testimony
from a BNSF employee that there had been maintenance issues with the retarders, the devices
used to slow the rail cars, on track 51. While BNSF presented its own evidence attempting
to rebut this and other evidence of negligence, it is not our duty nor the trial court’s duty to
weigh the evidence or make decisions regarding the credibility of the evidence. Drawing all
reasonable inferences in favor of Mrs. Melton and disregarding all evidence favorable to
BNSF that the jury was not required to believe, we find that she presented sufficient evidence
to raise a question for the jury. Accordingly, we affirm the decision of the trial court denying
BNSF’s motion for directed verdict and its renewed motion.
Motion for New Trial
BNSF next submits that the trial court erred in denying its Motion for a New Trial.
As previously held by this Court, we are to apply the federal standard to determine whether
to grant a new trial in a FELA case. Blackburn v. CSX Transp., Inc., No. M2006-01352-
COA-R10-CV, 2008 Tenn. App. LEXIS 336, *29 (Tenn. Ct. App. 2008). Under the federal
standard, the trial court “‘has the power and duty to order a new trial whenever, in its
judgment, this action is required to prevent an injustice.’” Id. at *13 (quoting 11 Wright,
Miller & Kane, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2d § 2805 (1995)).
“Common grounds for granting a new trial include the verdict is against the clear weight of
the evidence, a prejudicial error of law, or misconduct affecting the jury.” Id. We review
the trial court’s decisions on motions for new trial on an abuse of discretion standard. Id. at
*46; see also Toth v. Yoder, 993 F.2d 528, 1197 (6th Cir. 1984). “Abuse of discretion is
defined as a definite and firm conviction that the trial court committed a clear error of
judgment.” Logan v. Dayton Hudson Corp., 865 F.2d 789, (6 th Cir. 1989).
Evidentiary Rulings
BNSF’s contends that it was prejudiced by the erroneous admission of evidence and
that it is, therefore, entitled to a new trial. Decisions regarding the admissibility of evidence
rest within the sound discretion of the trial court. Otis v. Cambridge Mut. Fire Ins. Co., 850
S.W.2d 439, 442 (Tenn. 1992) Accordingly, we review the trial court’s decision under an
abuse of discretion standard. State Dep’t of Transp. v. Veglio, 786 S.W.2d 944, 948 (Tenn.
Ct. App. 1989). The abuse of discretion standard requires us to consider “(1) whether the
decision has a sufficient evidentiary foundation, (2) whether the trial court correctly
identified and properly applied the appropriate legal principles, and (3) whether the decision
is within the range of acceptable alternatives.” State ex rel. Vaughn v. Kaatrude, 21 S.W.3d
244, 248 (Tenn. Ct. App. 2000). “While we will set aside a discretionary decision if it rests
on an inadequate evidentiary foundation or if it is contrary to the governing law, we will not
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substitute our judgment for that of the trial court merely because we might have chosen
another alternative.” Id. If this Court finds error, we will only set aside the final judgement
upon a finding that the error “more probably than not affected the judgment or would result
in prejudice to the judicial process.” Tenn. R. App. P. 36(b).
BNSF submits that it was prejudiced when the trial court allowed Mrs. Melton’s
counsel to read from and refer to the deposition of Foster Peterson (“Peterson”) during cross
examination of BNSF’s expert, Dr. Elaine Serina (“Dr. Serina”). Peterson was an expert
hired by BNSF after the accident to do an investigation. He did not testify at trial and his
deposition8 was not introduced into evidence. BNSF argues that questioning Dr. Serina on
Peterson’s deposition was improper as Dr. Serina did not rely on the deposition to form her
opinion in this case.
In response, Mrs. Melton citing Steele v. Ft. Sanders Anesthesia Group P.C., 897
S.W.2d 270 (Tenn. Ct. App. 1994), argues that an expert may be questioned about any
information and data reviewed by that expert. In Steele, the testifying expert “acknowledged
that he ha[d] read and considered [the non-testifying expert’s] discovery deposition when
forming his opinion. He testified that he read and considered [the] deposition, but did not rely
on it. He stated he rejected [it].” Id. at 275. This Court held that cross examination of the
expert on the non-testifying expert’s deposition was proper because the expert had to rely on
the deposition at issue for the “facts and data upon which he based his opinion.” Id. As this
court stated, “[w]e are of the opinion that full cross examination of an expert can not and
should not be curtailed simply by having the expert deny that he relied on any materials he
reviewed and considered with which he disagrees.” Id. at 277.
At trial, Dr. Serina testified as to her conclusion on the cause of Mr. Melton’s injuries.
She concluded, using the shape and measurements of the wheel of the rail car along with the
rail, Mr. Melton’s body dimensions, and Mr. Melton’s injuries, that he was run over by the
rail car. Dr. Serina testified that the imprint found on the shoulder of Mr. Melton matches
the width of the rail. She explained that the flange of the wheel would explain the cut on his
armpit large enough to see muscle coming out, and the fracture to the thighbone. In response
to a question about amputation, Dr. Serina explained that the skin would stretch around the
flange of the wheel, but the flange would cut through bone and muscle. This, she explained
is why there was not a complete amputation, but as Mr. Melton’s injuries reflect, stretching
of the skin and near amputation as the bone and muscle was cut. Further, Dr. Serina testified
8
It is not clear from the record whether Peterson’s deposition was an evidentiary deposition or a
discovery deposition.
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that the abrasions on his chest and torso were caused by the sideframes of the rail car moving
over Mr. Melton. She testified that Mr. Melton would not have these injuries if he had not
been on the rail. Dr. Serina further explained that it was not her job to determine where Mr.
Melton was in relation to the AOK car, nor the speed of the rail cars.
Peterson testified in his deposition about an investigation he conducted after the
accident, at the instruction of BNSF’s attorney. Peterson’s testimony apparently included
his conclusion as to the speed at which he believed the rail cars were moving, his conclusion
as to how far Mr. Melton was from the AOK car prior to it moving, and his measurements
of Mr. Melton’s road truck.
Upon review of the record, we find Steele distinguishable from the case before us for
several reasons. First, there is no indication in the record that Dr. Serina considered
Peterson’s deposition for purposes of her opinion. Dr. Serina did testify that she read the
Peterson deposition along with other material provided to her in order to understand what
happened in the case. However, unlike in Steele, Dr. Serina did not rely on the deposition
for the facts and data she used in forming her opinion as to how Mr. Melton was injured.
Mrs. Melton’s counsel actually asked Dr. Serina, “Isn’t it true, Dr. Serina, that you had to
rely upon the basic investigative facts that Foster Peterson provided, because you did not
have any of your own?” Dr. Serina responded that she reviewed it, but did not rely on it for
her opinion, indicating that her knowledge of the facts in the deposition was not necessary
for her to form her opinion. As Dr. Serina stated, her opinions were based on the injuries to
Mr. Melton, the geometry of the rail car and the body dimensions of Mr. Melton. In fact, Dr.
Serina testified that she did not even receive the deposition at issue until after she wrote her
report.
Tennessee Rule of Evidence 705 provides that an expert may be required to disclose
the underlying facts or data of her opinion on cross examination.9 In Steele, this Court was
faced with an expert who admitted reading and considering a deposition to obtain the facts
and data upon which his opinion was based. The Steele expert denied relying on the
deposition, contending that he rejected it. That is not the situation we have before us. While
9
Tenn. R. Evid. 705 reads:
The expert may testify in terms of opinion or inference and give reasons without
prior disclosure of the underlying facts or data, unless the court requires
otherwise. The expert may in any event be required to disclose the underlying
facts or data on cross examination.
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we do not want to create a situation where an expert may simply deny that he relied on
material provided to him in forming his opinion in order to curtail cross-examination, there
must be some indication that the material upon which cross-examination is sought provides,
at least in part, the underlying facts and data upon which the expert’s opinion is based. In
this case, there is simply no indication that any material from the Peterson deposition, while
read, underlies Dr. Serina’s opinion. Therefore, we find that cross examination based on the
Peterson deposition was improper.
Assuming, arguendo that cross examination based on the Peterson deposition was
proper because Dr. Serina read the deposition, this Court still finds the situation
distinguishable from Steele and finds the cross examination improper. In Steele, the
plaintiff’s counsel was attempting to use the deposition to impeach the testifying expert.
Steele, 897 S.W.2d at 278. In this case it appears abundantly clear that Mrs. Melton’s
counsel was not attempting to impeach Dr. Serina with the Peterson deposition, but instead
was attempting to utilize Dr. Serina to present the Peterson deposition testimony to the jury.
Mrs. Melton’s counsel asked Dr. Serina about the speed of the rail car at issue and how long
Mr. Melton would have to react if the AOK car was moving at eight miles per hour. Prior to
this, the only evidence of the speed of the AOK car was the testimony of Ryan Schoener that
the CEFX car, the rail car initially humped onto track 51, was going 10.7 miles per hour as
measured at a switch an undetermined distance from the accident. When BNSF objected to
this question, counsel for Mrs. Melton explained that Peterson had testified that the rail car
was moving at eight miles per hour. The trial court overruled the objection and after another
objection concerning whether Dr. Serina relied on the Peterson deposition, cross examination
continued. Counsel for Mrs. Melton then read to Dr. Serina Peterson’s deposition where he
testified that the rail car was moving at eight miles per hour and counsel commented that
Peterson had testified that the AOK car would be going at essentially the same speed.10
However, the speed of the car and the amount of time Mr. Melton had to react had nothing
to do with Dr. Serina’s opinion that Mr. Melton’s injuries were caused by being run over by
a rail car and any such questions were completely irrelevant. Dr. Serina testified that she did
not have an opinion as to speed. Because this line of questioning was not impeachment and
because the Peterson deposition had not been entered into evidence, this line of questioning
was improper.
Finally, this situation is also distinguishable from Steele as the Steele court found the
cross-examination at issue to be immaterial. Id. at 278. The Steele court explained that the
10
We note that BNSF’s brief indicates that the deposition testimony was put on a screen and shown
to the jury. The record, however, does not indicate this.
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questioning at issue was only heard for a short period of time during a two and a half week
trial, was only used for impeachment after a strong cautionary instruction was given to the
jury, was cumulative to direct evidence in the record, and it was not referenced during
closing arguments. The case before this Court presents a starkly different situation. The
cross examination based on the Peterson deposition, including the attorneys’ objections,
spans the majority of approximately one hundred pages of transcript. The questioning was
not used for impeachment, but rather as a means to place before the jury Peterson’s estimate
of how far Mr. Melton was from the AOK car, the speed of the rail cars and the
measurements of the road truck taken by Peterson. None of these matters were related to the
opinion and testimony of Dr. Serina. There was no instruction given to the jury concerning
the use of Peterson’s deposition. Additionally, counsel for Mrs. Melton told the jury in
closing arguments, “you folks can figure out how far does that AOK car move in a second
if its going eight miles an hour,” even though the only evidence that the car was moving at
eight miles an hour came from Peterson’s deposition. Accordingly, we can not find that the
use of Peterson’s deposition by Mrs. Melton’s counsel to cross examine Dr. Serina was
immaterial.
This court has previously held that, when an expert bases her opinion on inadmissible
facts, the trial court should either prohibit the jury from hearing the testimony or deliver a
cautionary instruction that the jury is not to use the information as substantive evidence.
Benson v. Tenn. Valley Electric Co-Op, 868 S.W.2d 630, 641 (Tenn. Ct. App. 1993).
Peterson’s deposition was not entered into evidence and appears to be inadmissible hearsay.
A deposition is often admissible as an exception to the hearsay rule. See Tenn. R. Evid. 804.
However, there is no indication or argument in the record that Peterson was unavailable as
defined by our rules of evidence. Here the trial court repeatedly allowed questioning on
Peterson’s deposition, which included reading the deposition to the jury and summarizing
what Peterson testified to, but did not deliver a cautionary instruction to the jury regarding
its use of Peterson’s deposition. In fact, the trial court did eventually find the deposition to
be hearsay, but not until after numerous questions had been asked and answered, and
objections made. Consequently, we find that the trial court erred in allowing Mrs. Melton’s
counsel to use, comment on, and read from Peterson’s deposition when cross examining Dr.
Serina.
As stated above, we will not set aside a final judgment unless the error “more probably
than not affected the judgment or would result in prejudice to the judicial process.” Tenn. R.
App. P. 36(b). We are mindful of the respect to be given to a jury verdict and are hesitant
to set the verdict of the jury aside. However, upon reviewing the record, we find that due to
the pervasiveness of this line of questioning in the record, the fact that counsel referred to
the estimate of eight miles an hour in his closing argument, the fact that the theory that the
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rail car was moving at eight miles an hour does not appear anywhere else in evidence, the
lack of a cautionary instruction to the jury, and because Mrs. Melton’s claim was based in
part on the allegation that BNSF was negligent with regard to the speed of the rail car, we
find that the error “more probably than not affected the judgment or would result in prejudice
to the judicial process.” Consequently, we find that the trial court erred in not granting a new
trial based on the evidentiary errors.
Prejudice
BNSF further submits that it is entitled to a new trial because the jury was guided by
“bias, passion, and prejudice.” BNSF contends that the jury was prejudiced by Mrs. Melton’s
counsel’s continued questions and comments on inadmissible evidence, prior accidents,
BNSF’s post-accident investigation which the trial court held to be protected work product,
and suggestions of concealment and cover-up by BNSF. “Misconduct by an attorney that
results in prejudice may serve as a basis for new trial. The burden of showing prejudice rests
with the party seeking the new trial, and [the trial courts] have broad discretion in deciding
whether to grant a motion for new trial.” Maday v. Public Libraries of Saginaw, 480 F.3d
815, 819 (6th Cir. 2007)(citations omitted). To be entitled to a new trial on the basis that the
trial was unfair, the moving party must show that the jury was influenced by prejudice or
bias. Holmes v. City of Massillon, Ohio, 78 F.3d 1041, 1045 (6th Cir. 1996). This Court
must “determine ‘whether there is a reasonable probability that the verdict of the jury has
been influenced by improper conduct.’” Maday, 480 F.3d at 819 (citations omitted). The
reviewing court must consider the totality of the circumstances, considering the number of
comments, the nature of the comments, possible relevance to the issues, and the manner in
which the parties and the court treated the comments. Id.
Upon review of the record, we find numerous instances where Mrs. Melton’s counsel
referred to inadmissible evidence and BNSF’s post-accident investigation, and inferred that
BNSF was concealing evidence. In his opening statement for Mrs. Melton, her counsel told
the jury that BNSF had hired an expert that the jury would likely not hear from, and that
counsel had subpoenaed some evidence from BNSF, which had not been provided. Upon
objection by BNSF, the court admonished counsel and warned that too many more mistakes
would result in a mistrial. In questioning Charles Trailor11 (“Mr. Trailor”), head claims agent
for BNSF, counsel referenced interrogatories requesting statements and then asked if Mr.
Trailor was aware they had only received some statements the day before. Mr. Trailor was
also asked about the number of times Everett Gibson, an attorney for BNSF, had been hired
to defend BNSF and the number of times BNSF had hired Peterson to investigate accidents,
11
We note that Mr. Trailor is referred to as Troy Traylor in BNSF’s brief. We conclude Troy and
Charles are the same person despite the differences in spelling of the last name because Mr. Trailor stated
his name on the record as Charles Troy Trailor.
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despite the trial court’s previous ruling that the post-accident investigation was not
admissible. BNSF objected and the court sustained the objection. The parties then entered
into a stipulation that there had been an investigation after the accident by BNSF. When
questioning Grady Carr(“Mr. Carr”), yardmaster for BNSF, Mrs. Melton’s counsel asked Mr.
Carr if Mrs. Melton’s counsel had been “secluded and prevented from talking with [him].”
BNSF objected and the Court admonished counsel for Mrs. Melton. Then, when questioning
Roy Logan(“Mr. Logan”), a BNSF car inspector, Mrs. Melton’s counsel referenced a prior
accident Mr. Logan had and a claim he made against BNSF. Counsel then asked Mr. Logan
if BNSF ever took an inconsistent position with the rule that foul of the track was four feet
of the rails. BNSF objected and, in sustaining the objection, the trial court stated that, had
Mr. Logan answered, it would have been a mistrial. When Ryan Schoener(“Mr. Schoener”),
an employee of BNSF, testified that the speed limit on the track was twenty miles per hour,
Mrs. Melton’s counsel challenged Mr. Schoener to produce the timetables from the stand.
BNSF objected. The trial court sustained the objection, noting that discovery disputes were
not to be placed before the jury, but also noting that BNSF probably should have provided
the timetables. In examination of Andrew Corbet, a signal maintainer for BNSF, Mrs.
Melton’s counsel referenced a letter from BNSF’s counsel sent during discovery, discussing
missing attachments. Before making this reference during examination, Mrs. Melton’s
counsel had asked the court if he could inform the jury as to where he had obtained the
exhibit so that the jury would be aware that some parts were not provided. The trial court
denied this request, explaining to counsel that discovery disputes needed to have been
brought to the court prior to trial and not litigated in front of the jury. These are only some
of the specific objections to improper questions and comments. The cumulative effect of
these and other occurrences in the record indicate that the jury may have been guided by bias,
prejudice, or passion.
Further and more importantly, as this Court has previously stated, “[i]n deciding a
motion for new trial, the . . . judge is not bound to give any reasons, any more than the jury
itself is bound to do so.” Bellamny v. Cracker Barrel Old Country Store, No. M2008-
00294-COA-R3-CV, 2008 WL 5424015 at *3 (Tenn. Ct. App. 2008)(rev’d on other
grounds)(citations omitted). If the trial judge makes no comments, we must assume that the
trial judge properly performed her role. Id. For these reasons, we suggest, as we have
previously, that “when a trial judge overrules a motion for new trial,...[she] simply state that
[she] has reviewed the evidence relevant to the issues and approves the verdict. Anything
more unnecessarily runs the risk of an unwanted new trial.” Id. In the unfortunate
circumstance that the trial judge fails to follow our advice, and makes comments concerning
the ruling on a motion for new trial, this Court is forced to consider those comments and
determine whether the trial judge was satisfied with the verdict. Id. “If it appears from any
reasons assigned or statements made in passing on a motion for new trial that the judge was
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not actually satisfied with the verdict, it is the duty of the appellate courts to grant a new
trial....” Id.(citations omitted).
In this case, the trial judge denied the motion for new trial and then proceeded to
explain why she was denying the motion. The trial judge first explained her rationale, “that
the jurors most likely felt there was a cover up by the railroad that there was some cover up
by the railroad, their processing of that information,” without questions or comments from
counsel. When asked for clarification for the record, the following occurred:
Mr. Wheeler (counsel for BNSF): Just so the record is clear
we’ve been ready to argue all of the motions before the Court.
We understand and accept the Court’s rulings. As I understand
the Court has ruled on our Rule 50 Motion for A Judgment
Notwithstanding A Verdict?
The Court: That’s exactly right.
Mr. Wheeler: And has ruled on the Rule 59 Motion for A New
Trial.
The Court: That’s right, denying those motions.
Mr. Wheeler: On the basis that the Court has given in the
record[] today?
The Court: Right, there was a cover up by the railroad.
It appears to this Court from the comments by the trial judge, that the trial judge firmly
believed that the jury’s verdict was based on its belief that BNSF was involved in a
conspiracy and coverup to hide the truth. In reviewing the trial court’s decision, this Court
must consider her comments. Because of her belief that the jury’s verdict was based on a
conspiracy or coverup by BNSF, the trial judge should not have been satisfied with the
verdict and should have granted a new trial. The theory that questions and comments by Mrs.
Melton’s counsel suggested that BNSF conspired to coverup the truth or hide evidence was
a basis for BNSF’s motion for new trial and subsequent appeal. The trial court apparently
agreed, yet denied the motion for new trial. After reviewing the record, we find that the
numerous questions and comments by counsel for Mrs. Melton referring to hidden evidence;
an investigation by BNSF, which the trial court had already ruled inadmissible as work
product; and other suggestions of coverup and concealment by BNSF, support the trial
court’s belief. In considering the totality of the circumstances, we find that there were
numerous inappropriate questions and comments by counsel for Mrs. Melton, and that these
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questions continued despite objections from BNSF and in some instances after the trial court
sustained the objections and warned counsel. Also, we find that there were few curative
instructions to the jury. Finally, we find that the questions and comments regarding hidden
evidence and an investigation by BNSF had absolutely no relevance to the issues before the
jury, and the trial judge found that the jury believed BNSF had conspired and attempted to
coverup. Consequently, we find there is a reasonable probability the verdict was influenced
by improper questions and comments, and that the trial court abused her discretion in not
granting a new trial after finding that the jury’s verdict was based on its belief that BNSF was
involved in a conspiracy and coverup. Accordingly, BNSF is entitled to a new trial.12
Summary Judgment
Both parties submit that the trial court erred in ruling on the BNSF’s Motion for
Summary Judgment. Mrs. Melton argues that the trial court erred in granting BNSF
summary judgment on the issues of vegetation and ballast. BNSF argues that the trial court
erred in not granting it summary judgment on the remaining issues. In determining whether
a party in an FELA case is entitled to summary judgment Tennessee Rule of Civil Procedure
56 applies. Mills v. CSX Transportation, - - S.W.3d - -, No. E2006-01933-SC-R11-CV,
2009 WL 4547685 (Tenn. 2009).
When a motion for summary judgment is made, the moving party has the burden of
showing that “there is no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law.” Tenn. R. Civ. P. 56.04. The moving party may
accomplish this by either: (1) affirmatively negating an essential element of the non-moving
party’s claim; or (2) showing that the non-moving party will not be able to prove an essential
element at trial. Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 8-9 (Tenn. 2008). However,
“[i]t is not enough for the moving party to challenge the nonmoving party to ‘put up or shut
up’ or even to cast doubt on a party’s ability to prove an element at trial.” Id. at 8. If the
12
We further note that when ruling on the motion for new trial, the trial court also made comments
on the evidence that, after reviewing the record, we find to be incorrect. The trial court stated that there was
evidence that Mr. Vaiden had told Mr. Melton that he would alert “the powers that be” that Mr. Melton and
Mr. Carnell would be working on track 51. While evidence was presented and argument was made, that Mr.
Vaiden had a duty to notify the yardmaster that Mr. Melton was working on track 51, Mr. Vaiden
unequivocally testified that he did not notify the yardmaster and never testified that he told Mr. Melton he
had. Further, the trial court stated that the evidence showed that Mr. Vaiden was an EMS and did nothing
to help Mr. Melton. We find that the evidence does not show that Mr. Vaiden was an EMS, but that Mr.
Vaiden had CPR training and that he testified that Mr. Melton was conscious and breathing, and therefore
not in need of CPR.
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moving party’s motion is properly supported, “The burden of production then shifts to the
nonmoving party to show that a genuine issue of material fact exists.” Id. at 5(citing Byrd
v. Hall, 847 S.W.2d 208, 215(Tenn. 1993)). The non-moving party may accomplish this by:
“(1) pointing to evidence establishing material factual disputes that were overlooked or
ignored by the moving party; (2) rehabilitating the evidence attacked by the moving party;
(3) producing additional evidence establishing the existence of a genuine issue for trial; or
(4) submitting an affidavit explaining the necessity for further discovery pursuant to Tenn.
R. Civ. P., Rule 56.06.” Martin v. Norfolk Southern Railway. Co., 271 S.W.3d 76, 84
(Tenn. 2008)(citations omitted).
A trial court’s decision to grant a motion for summary judgment presents a question
of law. Our review is therefore de novo with no presumption of correctness afforded to the
trial court’s determination. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997). “This Court
must make a fresh determination that the requirements of Tenn. R. Civ. P. 56 have been
satisfied.” Mathews Partners, LLC v. Lemme, No. M2008-01036-COA-R3-CV, 2009 WL
3172134 at *3 (citing Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn. 1977)).
When reviewing the evidence, we must determine whether factual disputes exist. In
evaluating the trial court’s decision to grant summary judgment, we review the evidence in
the light most favorable to the nonmoving party and draw all reasonable inferences in the
nonmoving party’s favor. Stovall v. Clarke, 113 S.W.3d 715, 721 (Tenn. 2003). If we find
a disputed fact, we must “determine whether the fact is material to the claim or defense upon
which summary judgment is predicated and whether the disputed fact creates a genuine issue
for trial.” Mathews Partners, 2009 WL 3172134 at *3(citing Byrd, 847 S.W.2d at 214). “A
disputed fact is material if it must be decided in order to resolve the substantive claim or
defense at which the motion is directed.” Byrd, 847 S.W.2d at 215. A genuine issue exists
if “a reasonable jury could legitimately resolve the fact in favor of one side or the other.” Id.
Vegetation and Ballast Claims
Mrs. Melton submits on appeal that the trial court erred in granting BNSF summary
judgment on the issue of vegetation and ballast as there were material issues of fact in
dispute. In response, BNSF contends that the trial court correctly found that “submission of
said claims to a jury would not be probative.” BNSF claims that the basis for its motion was
that the claims of improper vegetation and ballast were preempted, and that the plaintiff did
not present any proof that the vegetation and ballast played any role in the accident.
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To be entitled to summary judgment, BNSF must either: (1) affirmatively negate an
essential element of the non-moving party’s claim; or (2) show that the non-moving party
will not be able to prove an essential element at trial. Hannan v. Alltel Publ’g Co., 270
S.W.3d 1, 8-9 (Tenn. 2008). It is not enough for BNSF to challenge Mrs. Melton to a “put
up or shut up,” by claiming she will not be able to prove her claim. Id. at 8. However, that
appears to be what BNSF attempted to do and the reason the trial court granted its motion.
As stated by BNSF in its statement of undisputed facts, “Plaintiff has presented no evidence
or other proof that the accident was proximately caused by any negligence of BNSF.” In its
memorandum in support of its motion, BNSF states, “the plaintiff has produced no
documentation, testimony or other credible proof which demonstrates BNSF is liable to her
for any damages whatsoever.” In no way did BNSF affirmatively negate an element of Mrs.
Melton’s claim or come forward with its own evidence demonstrating that Mrs. Melton
would not be able to prove an element of her claim
Because BNSF did not make the proper showing, the burden to demonstrate a material
issue of fact never shifted to Mrs. Melton. Despite the fact that the burden did not shift, Mrs.
Melton did come forward with evidence indicating that there were material issues of fact in
dispute. Specifically, Mrs. Melton provided the trial court with depositions which indicate
that there were material issues of fact in dispute. Jason Dowdy, a roadmaster for BNSF,
testified that, if track inspectors had seen the vegetation as it existed at the time of the
accident, they should have taken the track out of service as the vegetation was outside the
crossties. Carl Kinder, a BNSF employee, testified in his deposition that on the day of the
accident he observed weeds thirteen or fourteen inches tall along track 51. Roy Logan(“Mr.
Logan”), a carman for BNSF, testified that he had seen and reported weeds in the area of the
accident, and that he reported them because the vegetation would cause problems for
employees walking. Mr. Logan further testified that in his opinion, BNSF would be negligent
if it did not address the vegetation. Mr. Logan also testified that he had seen big rocks in
the area which could create a tripping hazard, and he had reported this to BNSF. Richard
Renner(“Mr. Renner”), a BNSF employee, also testified that federal regulations required the
vegetation be controlled, that BNSF required employees to report vegetation issues, and that
if BNSF inspectors had seen the vegetation depicted in photographs the track should have
been taken out of service. Mr. Renner further testified that improper ballast was a tripping
hazard, and that BNSF required ballast in the yard to be between one-half inch and one inch.
Mr. Schoner, a terminal manager for BNSF, testified that weeds or grass could be a
stumbling hazard. Daniel Tucker, a BNSF maintenance employee testified that the weeds
in the picture he was provided, were not in proper condition and showed ballast as large as
two inches. William Dunavant, a leadman for BNSF, testified that ballast of unequal size
could make you feel like you were walking on marbles. Accordingly, this Court finds that,
while BNSF never shifted the burden to Mrs. Melton requiring her to present proof of
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disputed facts, the record shows that there are material issues of fact in dispute which make
the grant of summary judgment to BNSF on the issues of vegetation and ballast improper.
However, this does not end the required analysis as BNSF claims that the vegetation
and ballast claims are preempted. The Sixth Circuit Court of Appeals has recently held that,
“the uniformity demanded by the [Federal Railway Safety Act, 49 U.S.C. § 20101, et seq.
(“FRSA”)] can be achieved only if federal rail safety regulations are applied similarly to a
FELA plaintiff’s negligence claim....’” Nickels v. Grand Truck Western R.R., Inc., 560
F.3d 426, 430 (6th 2009)(citing Lane v. R.A. Sims, Jr., Inc., 241 F.3d 439, 443 (5 th Cir.
2001); and Waymire v. Norfolk & W. Ry. Co., 218 F.3d 773, 776 (7th Cir. 2000)). Thus, if
there is a federal regulation prescribed under FRSA, plaintiff’s claims are preempted. As
noted by the Nickels court, the Secretary of Transportation has promulgated a regulation on
ballast and, therefore, negligence claims based on ballast may be preempted. Id. (citing 49
C.F.R. § 213.103). Similarly, there is also a regulation under FRSA on vegetation and claims
based on vegetation consequently, may also be preempted. See 49 C.F.R. § 213.37.
However, to be preempted the railroad must be in compliance with the federal
regulations. Micheal v. Norfolk Southern Ry. Co., 74 F.3d 271, 273 (11 th Cir. 1996). If the
railroad is not in compliance, then the claim is not preempted. Id. While preemption is a
question of law, Niles, 560 F.3d at 429, whether the railroad was complying with the federal
regulation at issue is a question of fact. Id. For purposes of summary judgment, BNSF has
not affirmatively shown that it was in compliance with the federal regulations. Therefore,
BNSF is not entitled to summary judgment on the issues of vegetation and ballast based on
BNSF’s defense of preemption. Consequently, we find that the trial court erred when it
granted BNSF summary judgment on the issues of vegetation and ballast.
Speed
BNSF submits that the trial court erred in not granting it summary judgment on the
issue of speed as the claim is preempted because speed is governed by 49 C.F.R. §213.9. The
trial court denied BNSF’s motion for summary judgment on the issue of speed. The order
entered does not reflect a reason for this decision, but during the hearing, the trial court stated
that Mrs. Melton’s claim of negligence based on speed was not preempted.
The trial court’s decision on preemption, as a matter of law, was error. As stated in
Niles, uniformity demanded by FRSA can only be achieved if the federal rail safety
regulations are applied to FELA claims. Niles, 560 F.3d at 430. While the Niles court was
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addressing a ballast issue, we believe the reasoning of Niles is analogous to a claim for
negligence based on speed. In fact, the Niles court relied on the reasoning from cases in two
other circuits, which found that FELA claims based on speed were preempted. Id. However,
question of facts still exist as to the speed limit of track 51 and whether the rail car was
within that speed limit. We note that Mrs. Melton argues that BNSF had an internal policy
that the rail cars only be moving at four miles per hour. However, for the purposes of
preemption, internal regulations are irrelevant. Michael, 74 F.3d at 274; see also St. Louis
Southwestern Ry Co. v. Pierce, 68 F.3d 276, 278 (8 th Cir. 1995). For purposes of summary
judgment, BNSF must demonstrate that there are no disputed facts as to the speed limit of
track 51 based on 49 C.F.R. § 213.9, and the speed at which the rail car was moving. BNSF
must also show that the rail car was within federal regulations. Because there are disputed
material facts as to the speed limit and the speed of the car, we affirm the trial court’s denial
of summary judgment on the issue of speed.
Conclusion
In sum, we affirm the trial court’s denial of a directed verdict. However, we reverse
the trial court’s denial of BNSF’s motion for new trial. Also, we reverse the trial court’s
grant of summary judgment to BNSF on the issues of vegetation and ballast, and affirm the
trial court’s denial of summary judgment on all remaining issues. All other issues are
pretermitted. We remand to the trial court for further proceedings consistent with this
opinion. Costs of this appeal are taxed one-half to Appellant, BNSF Railway Company, and
it surety, and one-half to Appellee, Laura Jan Melton for which execution may issue if
necessary.
_________________________________
J. STEVEN STAFFORD, JUDGE
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