May 2 2012
DA 11-0412
IN THE SUPREME COURT OF THE STATE OF MONTANA
2012 MT 98
PHILLIP R. BOUDE,
Plaintiff and Appellant,
v.
UNION PACIFIC RAILROAD COMPANY,
Defendant and Appellee.
APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. ADV 2007-583
Honorable Dorothy McCarter, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
John W. Hart, Rossbach Hart, P.C., Missoula, Montana
John T. Papa, Todd A. Neilson, Callis, Papa, Hale, Szewczyk &
Danzinger, P.C., Granite City, Illinois
For Appellee:
J. Daniel Hoven, Sara S. Berg, Daniel J. Auerbach, Browning, Kaleczyc,
Berry & Hoven, P.C., Helena, Montana
Submitted on Briefs: February 15, 2012
Decided: May 2, 2012
Filed:
__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 On August 9, 2007, Philip Boude filed a Federal Employers’ Liability Act (FELA)
claim against his employer, Union Pacific Railroad Company, asserting that he
experienced a work-related injury on July 29, 2006, due to the Railroad’s negligence.
Following a seven-day trial in the First Judicial District Court, a jury ruled in favor of
Union Pacific. Boude appeals. We reverse and remand.
ISSUE
¶2 Boude submits the District Court committed multiple errors during the trial. We
conclude that the single dispositive issue is whether the District Court abused its
discretion in admitting evidence of Boude’s termination of employment and the Public
Law Board’s (PLB) decision affirming his termination.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 Boude began working for Union Pacific in May 2005. He completed conductor
training within a few months and was assigned conductor duties on various Union Pacific
trains. On July 29, 2006, Boude was called to take a grain train from Kansas City to
Coffeyville, Kansas. The train engineer on that assignment was Paul Belcher. As the
grain train was proceeding to its destination, Boude and Belcher were notified by
dispatch that their two train engines were required to help push another train (the “stalled
train”) up and over a steep hill. They were instructed to disconnect the grain cars from
their engines, and position their engines behind the stalled coal train and connect them,
thus allowing the engineer at the front of the stalled train to control the engines provided
by Boude and Belcher. This is called the pusher/helper maneuver. During the execution
2
of this maneuver, Boude claims their engines collided with the stalled train, throwing
Boude from his seat into the dash and windshield of his engine and resulting in injury.
¶4 Boude claims he began experiencing neck stiffness within a day of the incident
followed by headaches and arm pain over several following days. By October 2006, he
had seen multiple doctors for the pain and discomfort. Sometime in October 2006, he
notified his direct superiors, Tracy Brown and Alvin Burrows, that he would be missing
work due to a neck injury. He assured his managers that his injury was not work-related.
However, on November 15, 2006, he filed a personal injury form reporting this incident
to Union Pacific for the first time, despite being aware of Union Pacific rules requiring
employees to report work-related injuries promptly. By the time Boude reported the
incident to his employer he had already contacted a lawyer seeking advice regarding a
claim.
¶5 Following Boude’s incident report, the Railroad questioned whether Boude was
truthful in his account of the incident and his claim of injury; therefore, Union Pacific
held a disciplinary hearing which Boude attended with his union representative.
Subsequently, on December 6, 2006, the Railroad terminated Boude’s employment based
on his delay in reporting his injuries, and Union Pacific’s belief that Boude had lied to his
managers about the incident. Boude appealed his termination to the PLB, a body made
up of union, railroad and neutral members. The PLB is an “arbitral tribunal that reviews
the outcome of a railroad’s investigative hearing to ascertain whether the result is
consonant with the terms of the CBA between the railroad and its union employees.”
Kulavic v. Chicago & Ill. M. Ry. Co., 1 F.3d 507, 513 (7th Cir. 1993).
3
¶6 On December 31, 2006, the PLB, relying exclusively on the evidence presented at
the Railroad’s hearing and not on an independent investigation, affirmed the Railroad’s
decision to terminate Boude. The PLB cited evidence presented at the hearing that
Boude’s injury could be attributed to previous injuries sustained by Boude prior to his
employment with Union Pacific. The PLB concluded that Boude’s failure to promptly
notify the Railroad deprived Union Pacific of the opportunity to conduct a meaningful
investigation of the incident and determine whether the Railroad needed “to correct any
potential workplace hazard so as to prevent injury to other employees or persons.” The
PLB ruled that Boude’s failure to act in a timely manner “must be viewed as a major
violation of conduct necessary in an employee-employer relationship as concerns such
matters.” It therefore upheld the Railroad’s termination decision. Boude did not appeal
this decision.
¶7 On August 9, 2007, Boude filed a FELA claim against Union Pacific asserting that
it negligently failed to provide him with a safe work environment and, as a result, he was
injured. In September 2009, Boude moved to have the District Court exclude from
evidence any reference to his termination from Union Pacific, including but not limited to
the PLB report affirming his termination. In its Order filed November 2, 2009, the
District Court, in a single statement, ruled that the evidence of Boude’s termination and
the reason for the termination “may be relevant”; therefore, the court denied his motion in
limine. On January 13, 2011, Boude moved for reconsideration of the District Court’s
ruling denying his motion in limine. The District Court denied the motion to reconsider.
The PLB report was admitted into evidence during the direct examination of Tracy
4
Brown, the Manager of Operating Practices for the Union Pacific subdivisions worked by
Boude in the summer of 2006.
¶8 Beginning with opening arguments and periodically throughout the trial, the jury
heard evidence of Boude’s termination for dishonesty and for failing to timely report the
incident. Boude’s termination from employment was mentioned no fewer than fifteen
times. The PLB report, along with other exhibits, was provided to the jury during their
deliberations. The jury ultimately ruled that Union Pacific was not negligent. Boude
appeals.
STANDARD OF REVIEW
¶9 A district court’s ruling on a motion in limine is an evidentiary ruling that this
Court reviews for an abuse of discretion. State v. Edwards, 2011 MT 210, ¶ 12, 361
Mont. 478, 260 P.3d 396.
DISCUSSION
¶10 Did the District Court abuse its discretion in admitting evidence of Boude’s
termination and the Public Law Board decision affirming his termination?
¶11 Boude argues that evidence of his termination was irrelevant to whether the
Railroad negligently provided an unsafe work environment for its employees.
Additionally, Boude asserts that the written decision of the PLB was inadmissible
hearsay, unduly prejudicial to him, untrustworthy, and confusing for the jury. Union
Pacific disagrees with these assertions of error.
¶12 Montana Rule of Evidence 801 (Rule 801) defines “hearsay” as “a statement,
other than one made by the declarant while testifying at the trial or hearing, offered in
5
evidence to prove the truth of the matter asserted.” “Statement” is “(1) an oral or written
assertion or (2) nonverbal conduct of a person, if it is intended by the person as an
assertion.” A “declarant” is “a person who makes a statement.” In the context of this
case, the PLB is the “declarant” and the “statement” is the written PLB report affirming
Boude’s termination on the grounds of dishonesty and delay. As the PLB ruling was
admitted in order to affirm Boude’s termination for dishonesty and delay, it was clearly
presented to “prove the truth of the matter asserted.” As such, we conclude the PLB
decision was hearsay and inadmissible unless one of the exceptions in Rule 803 applied.
¶13 Union Pacific maintains that Rule 803(8) provides an exception to the hearsay rule
allowing admission of the PLB report. This Rule states:
The following are not excluded by the hearsay rule, even though the
declarant is available as a witness:
. . .
(8) Public Records and Reports. To the extent not otherwise
provided in this paragraph, records, reports, statements, or data
compilations in any form of a public office or agency setting forth its
regularly conducted and regularly recorded activities, or matters observed
pursuant to duty imposed by law and as to which there was a duty to report,
or factual findings resulting from an investigation made pursuant to
authority granted by law. The following are not within this exception to the
hearsay rule: (i) investigative reports by police and other law enforcement
personnel; (ii) investigative reports prepared by or for a government, a
public office, or an agency when offered by it in a case in which it is a
party; (iii) factual findings offered by the government in criminal cases; (iv)
factual findings resulting from special investigation of a particular
complaint, case, or incident; and (v) any matter as to which the sources of
information or other circumstances indicate lack of trustworthiness.
Union Pacific submits that the PLB decision was a “public record” and as such was
admissible.
6
¶14 Boude counters that the PLB report actually falls within Rule 803(8)(iv) and (v)
and is therefore not within the exceptions to the hearsay rule listed in the first sentence of
Rule 803(8). He asserts that the PLB decision contained factual findings gleaned from
Union Pacific’s special investigation concerning his case, and was not the result of an
investigation “made pursuant to authority granted by law.” He further argues that the
report’s findings are inherently untrustworthy because the testimony at the disciplinary
hearing was “unsworn, uncounseled and not subject to any rules of evidence or
discovery.”
¶15 To support his argument Boude relies heavily on Sleigh v. Jenny Craig Weight
Loss Centres, Inc., 984 P.2d 891 (Ore. App. 1999). Sleigh interprets Oregon’s Evidence
Rule 803(8)(c) which provides:
The following are not excluded by Oregon’s Hearsay Rule:
. . .
(8) Records, reports, statements or data compilations, in any form, of public
offices or agencies, including federally recognized American Indian tribal
governments, setting forth:
(c) In civil actions and proceedings and against the government in
criminal cases, factual findings, resulting from an investigation made
pursuant to authority granted by law, unless the sources of information or
other circumstances indicate lack of trustworthiness.
This provision, while similar to the first sentence of Montana Rule 803(8), does not
provide for the exceptions to Montana Rule 803(8)(i)-(v), and therefore is somewhat
distinguishable. However, Sleigh does stand for the proposition that admissible “factual
findings” resulting from an investigation conducted pursuant to law are limited to reports
based upon personal knowledge of the investigator or upon verifiable facts rather than
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opinion; otherwise, such findings are inadmissible as hearsay. Sleigh, 984 P.2d at 893.
In other words, while “factual findings resulting from an investigation made pursuant to
authority granted by law” would be admissible, factual findings “resulting from special
investigation of a particular complaint, case, or incident” are not. Rule 803(8)(iv).
¶16 We interpreted Rule 803(8)(iv) in Stevenson v. Felco Ind., 2009 MT 299, 352
Mont. 303, 216 P.3d 763, in a manner relevant to this case. In Stevenson, Stevenson
began working at Felco in 1995 and was fired in April 2005, allegedly for failing to meet
a cold-call quota instituted by his new manager. Stevenson, ¶¶ 5-6. Stevenson filed a
claim with the Montana Department of Labor & Industry (DOLI) Human Rights Bureau
(HRB). He claimed Felco had discriminated against him based upon his age. The HRB
investigator interviewed several of Stevenson’s co-workers and reviewed pertinent
documents. The examiner subsequently ruled in favor of Felco concluding that no age
discrimination occurred. Stevenson, ¶ 7.
¶17 Stevenson subsequently brought a wrongful discharge and age discrimination
action against Felco. He filed a motion in limine, seeking to preclude Felco from
presenting comments and allegations at trial that were submitted to the HRB investigator
and included in the HRB Report, but he did not specifically request that the HRB Report
be excluded. Stevenson, ¶¶ 9-14. During the jury trial, Felco introduced the HRB Report
into evidence over Stevenson’s objections. The jury returned a verdict for Felco. We
reversed and remanded the case on the ground that the district court erred in admitting the
HRB Report, which we concluded was “patently inadmissible and highly prejudicial.”
Stevenson, ¶ 47.
8
¶18 We observed in Stevenson that Rule 803(8)(iv) “specifically excludes factual
findings such as the reasonable cause finding of the [HRB] which directly results from an
investigation of a particular complaint of discrimination.” Stevenson, ¶ 30, citing
Crockett v. City of Billings, 234 Mont. 87, 98, 761 P.2d 813, 820 (1988). We noted that
reports issued by governmental agencies, because of their “official” nature, may well
carry inordinate weight in the minds of jurors. Stevenson, ¶ 43. We concluded that even
though Stevenson had failed to comply with a pretrial order, the court could not “admit
patently inadmissible and substantially prejudicial evidence” as a sanction. Stevenson,
¶ 45. In the matter before us, the jury heard evidence that Boude was fired for dishonesty
and that the PLB officially affirmed his termination. Like the investigative findings of
the HRB, the decision of the PLB resulted from the investigation of a particular
complaint, and was “patently inadmissible and highly prejudicial.” We interpret Rule
803(8)(iv) to preclude the admission of the PLB report in the case before us as
inadmissible hearsay and prejudicial.
¶19 The error in admitting the PLB report is compounded by the fact that Boude’s
termination and the PLB decision were completely immaterial and irrelevant to the
question of whether the Railroad negligently caused Boude’s claimed injuries. Evidence
which is not relevant is not admissible. M. R. Evid. 402.
¶20 Additionally, the PLB order would arguably be inadmissible as well under Rule
803(8)(v), in that it lacks the trustworthiness attendant to proceedings conducted by a
neutral arbiter. At the disciplinary hearing, Boude was not represented by counsel, he did
not have subpoena power, and his employer, the Railroad, acted as both judge and jury.
9
The PLB, in turn, simply reviewed the Railroad’s disciplinary decision and upheld it. As
noted in Kulavic, PLB procedures “are less protective of constitutional guarantees than
are the procedures employed in the United States courts.” Kulavic, 1 F.3d at 518. More
to the point, in that they are wholly conducted in a railroad-controlled environment, PLB
proceedings lack guarantees of trustworthiness. Thus, the evidence was inadmissible on
three separate stand-alone grounds.
¶21 The Railroad argues that should this Court conclude that the District Court abused
its discretion in admitting this evidence, the error was harmless in the face of substantial
admissible evidence that supported the jury’s finding that the Railroad was not negligent.
We concede that there was substantial evidence to support the jury verdict; however,
there was also sufficient evidence from which the jury could have concluded that the
Railroad was in fact negligent and caused injury to Boude. The problem is that we
cannot know how much of an impact the “highly prejudicial” and irrelevant evidence had
on the members of the jury. Where the impact of clearly inadmissible evidence is
conceivably outcome-determinative, we conclude the only appropriate course is reversal.
As we noted in Pacificorp v. Dep’t. of Revenue, 254 Mont. 387, 398, 838 P.2d 914, 920,
if substantial rights are prejudiced, reversal is appropriate. “The test of prejudicial error
requiring reversal is whether there is a reasonable possibility the inadmissible evidence
might have contributed to the verdict.”
¶22 Finally, because Union Pacific disputed Boude’s claim of injury, it was entitled to
introduce evidence that Boude submitted an untimely report of injury and argue that he
made dishonest statements to management in connection with his claim. Such evidence
10
was relevant to Union Pacific’s contention that Boude exaggerated the collision and was
attempting to recover for a preexisting injury, and was relevant to its claim that Boude
was not credible. This evidence was therefore admissible. It will also be admissible on
retrial. However, evidence of Boude’s termination from employment and the PLB report
will not be admissible.
CONCLUSION
¶23 For the foregoing reasons, we reverse the District Court’s denial of Boude’s
motion in limine pertaining to his termination and the PLB ruling, and remand for further
proceedings in accordance with this Opinion.
/S/ PATRICIA COTTER
We concur:
/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ JIM RICE
Justice Beth Baker, dissenting.
¶24 I agree that it was error under M. R. Evid. 803(8) to admit the PLB report into
evidence at trial but, based on a thorough review of the record, I would conclude that the
District Court did not abuse its discretion in admitting evidence of Boude’s termination
and that Boude has not met his burden of proving prejudice from admission of the report.
11
¶25 The analysis should begin by acknowledging the limited scope of an appellate
court’s review of a jury verdict in a civil case. We repeatedly have recognized that we
“‘must exercise the greatest self-restraint in interfering with the constitutionally mandated
processes of jury decision.’” Seltzer v. Morton, 2007 MT 62, ¶ 94, 336 Mont. 225, 154
P.3d 561 (quoting Kneeland v. Luzenac Am., Inc., 1998 MT 136, ¶ 53, 289 Mont. 201,
961 P.2d 725). Because of the deference accorded a jury’s verdict, the law is clear that a
district court will not be reversed for improperly admitting evidence unless “substantial
prejudice to the complaining party [is] shown.” Green v. Green, 181 Mont. 285, 293,
593 P.2d 446, 451 (1979). In other words, “a reversal cannot be predicated upon an error
in admission of evidence, where the evidence in question was not of such character to
have affected the result.” In re A.N., 2000 MT 35, ¶ 55, 298 Mont. 237, 995 P2d 427;
Mason v. Ditzel, 255 Mont. 364, 371, 842 P.2d 707, 712 (1992); Lauman v Lee, 192
Mont. 84, 90, 626 P.2d 830, 834 (1981).
¶26 Liability in a FELA claim is premised on negligence. The threshold issue Boude
was required to prove was that Union Pacific breached its duty to provide him with a
reasonably safe workplace. “FELA does not require an employer to exercise the highest
degree of care, but only the same degree of care as an ordinary, reasonable person would
exercise in similar circumstances.” Martinez v. Union Pac. R.R. Co., 82 F.3d 223, 228
(8th Cir. 1996). Under the FELA causation standard, if the Railroad breached its duty, it
is liable if its negligence “played a part—no matter how small—in bringing about the
injury.” Weber v. BNSF Ry. Co., 2011 MT 223, ¶ 26, 362 Mont. 53, 261 P.3d 984. The
jury in this case answered “no” to the threshold question on the special verdict form,
12
whether the Union Pacific was negligent, and thus did not answer any other questions in
reaching its final verdict.
¶27 Although the Court discusses without distinction the PLB report and Boude’s
termination, it is important to evaluate the two items of evidence separately since their
admissibility is governed by different rules of evidence.
Boude’s Termination from Employment
¶28 The Union Pacific terminated Boude’s employment in this case because he did not
report the July 29 incident for over four months, in violation of the railroad’s strict
policies on prompt reporting of injuries. Tracy Brown, Union Pacific’s manager of train
operations at the time, testified that when Boude first contacted him in October about his
neck pain, Boude assured him it was not a work-related injury. Approximately three
weeks later, Boude called Brown to advise him that the injuries were in fact work-related.
Brown attempted to set a meeting with Boude to review the incident with him and
complete the required paperwork, but Boude put him off. Boude did not meet with
Brown, but later filed the incident report form with help from an attorney. Boude did not
object to this testimony at trial, and concedes—as does the Court (Opinion, ¶ 22)—that
his “dishonest statements to management” were relevant and admissible at trial. Boude
argued in his motion in limine, however, that evidence of his termination for that
dishonesty should be excluded because it was not relevant and “would only confuse the
jury as to the amount of damages,” in particular his claim for lost future earnings. On
appeal, Boude again emphasizes that the fact of termination did not, as a matter of law,
13
affect the quantum of damages and the evidence “only confused the jury as to the
measure of Plaintiff’s damages.” (Emphasis added.)
¶29 A district court has broad discretion to determine whether or not evidence is
relevant. State v. Hardman, 2012 MT 70, ¶ 13, 364 Mont. 361, ___ P.3d ___. Courts in
FELA cases generally have held that a worker’s termination from employment does not
preclude his claim for lost earnings if the loss of earnings is alleged to have resulted from
the worker’s injuries and not from an alleged wrongful termination. Martinez, 82 F.3d at
227; State ex rel. Union Pac. R.R. v. Dierker, 961 S.W.2d 816, 823 (Mo. 1998); Torres v.
Union Pac. R.R. Co., 2006 U.S. Dist. LEXIS 84333, *4-5 (E.D. Ca. 2006); Graves v.
BNSF Ry. Co., 77 F. Supp. 2d 1215, 1219 (E. D. Okla. 1999). Based on this authority,
the District Court agreed with Boude that he was entitled to present evidence of lost
wages beyond the date of his termination. Boude argues that Union Pacific nonetheless
used the evidence of his termination to urge the jury not to award future wages for job he
no longer had.
¶30 The Eighth Circuit U.S. Court of Appeals recently clarified that its decision in
Martinez did not create a firm rule that a railroad employee’s termination could never be
admissible in the employee’s FELA case. Wright v. Ark. & Mo. R.R. Co., 574 F.3d 612,
618-19 (8th Cir. 2009). The court distinguished Martinez and upheld the admission of
the plaintiff’s termination where it was offered to counter the impression that his injuries
were the only reason he no longer worked for the railroad. Wright, 574 F.3d at 619.
Here, given the testimony at trial and in light of the trial court’s broad discretion in
evidentiary rulings, admission of Boude’s termination likewise was not reversible error.
14
¶31 Both Boude and his wife Amber testified that he is in constant pain that has
substantially and permanently affected his ability to engage in daily living activities.
Boude testified he has been unable to work because of his neck condition and that he had
intended to work for the railroad until he reached full retirement eligibility at age 67.
Like the court in Wright, I would conclude that the district court did not abuse its
discretion in admitting evidence of termination where to exclude it could “leave the jury
with the impression that physical limitations from the accident were the only reason
[Boude] no longer worked at [Union Pacific].” Wright, 574 F.3d at 619.
Public Law Board Report
¶32 I concur for the reasons stated by the Court that the PLB report constituted hearsay
to which the public records exception provided in M. R. Evid. 803(8) did not apply. The
Court emphasizes that the PLB report was not relevant to the questions whether Union
Pacific was negligent and whether the negligent performance of the helper/pusher
maneuver caused injury to Boude. (Opinion, ¶ 19.) It is this very issue on which we
should focus in determining whether admission of the report prejudiced Boude’s
substantial rights at trial. The report went only to whether Boude’s delay in reporting the
incident justified termination because he violated Union Pacific’s strict policies on timely
reporting. The report contained no finding or conclusion that Boude was “dishonest,” but
did conclude that his delay in reporting “wrongly deprived the Carrier of timely
investigation” of the incident and the ability to determine any need to correct workplace
hazards. The PLB therefore concluded that Boude’s action was “a major violation of
conduct necessary in an employee-employer relationship as concerns such matters.”
15
Boude did not dispute the relevancy of his delay in reporting and there was considerable
testimony at trial about the reasons for the delay. Boude testified he was afraid to report
his injury based on a railroad policy that allowed employees to be fired for so much as
“breaking a fingernail,” but he was contradicted by the other three railroad employees on
site that day, each of whom rejected this notion and stated the only thing they had to be
afraid of was failure to report an injury in a timely manner.
¶33 With respect to the threshold question whether the railroad was negligent by
failing to provide a reasonably safe workplace, the evidence from Paul Belcher, the
engineer in the locomotive in which Boude was riding, corroborated Boude’s theory that
there was a “jolt” from the slack action that was “one of the more severe” run-ins he had
experienced. However, he testified that Boude never made contact with the windshield
and never complained to Belcher of any pain or injury until the date of his last day of
work in October 2006. Most of the testimony on the issue of negligence centered on
whether the engineers had sufficient training on the pusher/helper maneuver and on
whether the personnel operating the lead locomotive had communicated adequately with
Belcher on the maneuver that day. All three of the other railroad employees involved in
the “run-in” testified they did not think the procedure that day was unsafe.
¶34 The record shows that Boude’s honesty was called into question by a significant
amount of evidence contradicting his claim that the slack action on the date in question
caused his neck problems. None of the three other railroad employees on site recalled
Boude saying anything that day about being injured or in pain. The medical evidence
showed that Boude had a history of cervical spine injuries dating from his work as a
16
police officer. In 1998, his police car was rammed by a suspect during a car chase and he
had discomfort in his neck as a result. In 2003, he was helping to carry an obese woman
down a flight of stairs when he twisted his leg and felt a pulling in the right shoulder.
Pain in his neck resulted and he ultimately was diagnosed with a herniated disc, for which
he underwent surgery. The report from a 2004 examination indicated a preexisting
degenerative condition even earlier, with Boude noting he was hospitalized at age 12 for
neck pain with x-rays said to reveal an unusual calcium deposit in the cervical spine.
¶35 When he applied for work at the Union Pacific, Boude disclosed the prior neck
surgery and herniated disc on his medical form. Medical records from the Fall of 2006
(near the time he made his report of the July 2006 incident to Union Pacific) show that
Boude reported on at least two occasions that his neck pain symptoms had started in
November 2005. He reported to his regular doctor in October 2006 that his neck stiffness
and pain had been ongoing in the “last 10 months,” and did not tell him about the July
2006 incident. Boude also advised the neurologist that “working on a train on a bumpy
route since [November 2005] caused his symptoms to return,” but apparently did not
mention the July 2006 incident to him, either. A phone record from his doctor’s office on
October 31, 2006, showed that Boude called back later to ask if his back problem “from
last visit could be caused by work. He was told that because of his history and disc
disease to 2003 it could not be determined if work was the cause.” It was pointed out at
trial that Boude had consulted with an attorney prior to seeing the doctor—recommended
by the attorney—who ultimately concluded that Boude’s neck pain was related to the
slack-action incident.
17
¶36 Our two prior cases considering the erroneous admission of a report in violation of
Mont. R. Evid. 803(8)(c) have reached different conclusions as to whether the report’s
admission was reversible error, based on the evidence and issues in the case. Both cases
involved a report of findings from the Human Rights Bureau. In Stevenson, ¶¶ 7, 43-44,
we held that Stevenson was clearly prejudiced by the District Court’s admission of the
HRB’s finding of “no reasonable cause to believe unlawful age discrimination occurred”
in his case. The very issue before the jury was whether the defendant had discriminated
against Stevenson on the basis of age. In Crockett, 234 Mont. at 93-96, 761 P.2d at
817-19 (1988), the district court, in a non-jury case, had found that the plaintiff
established a prima facie case of employment discrimination consistent with the HRB’s
“reasonable cause” finding, but concluded that the defendant proved a legitimate non-
discriminatory reason for failing to hire the plaintiff. Under these circumstances, we held
that the District Court’s consideration of the HRB’s reasonable cause finding for the
plaintiff was not prejudicial error. 234 Mont. at 99, 761 P.2d at 820.
¶37 Applying the rationale of these cases in the context of the record here, I would
conclude that Boude has not carried his burden of proving prejudice to his substantial
rights from the erroneous admission of the evidence. The PLB report, unlike the report
erroneously admitted in Stevenson, did not go to the very issue the jury was considering
but to a collateral issue (lack of Boude’s timely report) on which there concededly was
other relevant evidence presented to the jury. The evidence therefore was both
cumulative and collateral to the central issue in the case—Union Pacific’s failure to
provide a reasonably safe place to work—on which the testimony was overwhelmingly in
18
the railroad’s favor. The safety of the workplace was not an issue about which Boude’s
honesty was particularly in question, since Belcher corroborated his version of a
significant run-in event. What did draw his honesty into question was Boude’s claim that
the event caused him injury—an issue the jury never even reached and on which there
was overwhelming evidence to the contrary. Whether admission of the PLB report
affected Boude’s damage claim is irrelevant.
¶38 After hearing seven days of testimony from sixteen different witnesses, the jury
deliberated for less than two hours before returning an 11-1 verdict for Union Pacific. On
appeal, Boude failed to make any response to Union Pacific’s arguments that, based on
the extensive evidence presented at trial, Boude was not prejudiced by admission of the
PLB report. Boude also failed to offer any rebuttal to Union Pacific’s assertion that he
could not have been prejudiced because the jury never reached the issue of causation or
damages. Quite clearly, the PLB report should not have been admitted, and Union
Pacific did not need the evidence to defend the case. In light of the record and the
arguments presented on appeal, however, I would conclude that Boude has not carried his
burden of proving prejudice to his substantial rights from the erroneous admission of the
report. Seltzer, ¶ 65. I would therefore affirm the jury’s verdict in favor of Union
Pacific. Although the Court does not reach the other issues Boude raised on appeal, I
would affirm on those issues as well.
/S/ BETH BAKER
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