Rentz v. BNSF Railway Co.

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
DECEMBER 17, 2020
STATE OF NORTH DAKOTA

IN THE SUPREME COURT
STATE OF NORTH DAKOTA

2020 ND 254

David Phillip Rentz, Plaintiff and Appellee
v.
BNSF Railway Company,
a Foreign For-Profit Corporation, Defendant and Appellant

No. 20200074

Appeal from the District Court of Ward County, North Central Judicial
District, the Honorable Stacy J. Louser, Judge.

REVERSED AND REMANDED.

Opinion of the Court by Jensen, Chief Justice.

Grant L. Davis (argued), John S. Carroll (appeared), Thomas C. Jones (on
brief), Timothy C. Gaarder (on brief), Kansas City, MO, and Steven A. Lautt
(appeared), James E. Nostdahl (on brief), David J. Hogue (on brief), Minot, ND,
for plaintiff and appellee.

Dale M. Schowengerdt (argued), Helena, MT, and Michael C. Waller
(appeared), Bismarck, ND, for defendant and appellant.
Rentz v. BNSF Railway Co.
No. 20200074

Jensen, Chief Justice.

[¶1] BNSF Railway Co. (“BNSF”) appeals from a jury verdict and money
judgment entered in favor of David Rentz. BNSF asserts it was denied a fair
trial for the following reasons: (1) BNSF’s designated representative at trial
was allowed to be questioned beyond the scope of his knowledge; (2) video and
audio clips taken from discovery depositions of BNSF’s designated
representatives were improperly played during opening and closing
arguments; (3) BNSF’s internal operating procedures were improperly used to
modify the standard of care; and (4) opinion testimony of the investigating
highway patrol trooper was excluded from evidence. Because we conclude the
questioning of BNSF’s representative at trial exceeded his personal knowledge
and affected a substantial right, we reverse the judgment of the district court
and remand this case for a new trial.

[¶2] In July 2012, a tractor-trailer driven by Rentz was struck by a train
operated by BNSF and train engineer, Reinaldo Guitian, Jr. The collision
occurred at a public railroad grade crossing. In December 2015, Rentz sued
BNSF and Guitian for personal injuries sustained during the vehicle/train
collision. Guitian was subsequently dismissed as a named defendant in the
action.

[¶3] In January 2019, the district court held an eleven-day jury
trial on Rentz’s negligence claim. Guitian was designated as BNSF’s party
representative under N.D.R.Ev. 615 and was not sequestered from the
courtroom. The jury returned a verdict finding Rentz 15% at fault and BNSF
85% at fault. A money judgment was entered in favor of Rentz.

[¶4] In July 2019, BNSF filed a motion for judgment as a matter of law or, in
the alternative, a new trial. The district court denied BNSF’s motion for a
judgment as a matter of law and for a new trial. On appeal of the denial of its
motion for a new trial, BNSF asserts the following errors occurred during the

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trial: (1) the court improperly allowed Guitian, BNSF’s designated party
representative during the trial, to be examined outside the scope of his actual
knowledge and to make binding statements on behalf of BNSF; (2) the court
improperly allowed deposition video and audio clips of BNSF representatives
to be played during opening statements and closing arguments; (3) federal law
preempts BNSF’s internal policies and the court improperly allowed the
internal policies to alter the standard of care for negligence; and (4) the court
improperly prevented a North Dakota highway patrol trooper from offering
expert opinion testimony. BNSF argues the errors prejudiced a substantial
right and had a significant probability of effecting the jury’s verdict.

[¶5] Prior to the start of the trial, the court ordered the sequestration of
witnesses pursuant to N.D.R.Ev. 615. As provided by N.D.R.Ev. 615(b), BNSF
was allowed to designate one person to represent the corporation and remain
in the courtroom throughout the trial. BNSF designated Guitian, the engineer
operating the train at the time of the collision, as BNSF’s representative
during the trial.

[¶6] Central to Rentz’s claim was whether vegetation obstructed the view of
the railroad crossing where the collision occurred and, if so, whether BNSF
was negligent in failing to properly control the vegetation. Guitian was called
as a witness by BNSF. During the cross examination of Guitian, Guitian was
questioned about BNSF’s internal vegetation control policies and related
corporate decision making regarding cutting the vegetation at the crossing
where the accident occurred. Guitian testified he was not familiar with the
policies or the decision regarding cutting the vegetation at the crossing where
the accident occurred. Over BNSF’s objection, Guitian was allowed to be
examined regarding the policies and the decision-making. The court
determined the examination was proper because Guitian had been designated
as BNSF’s N.D.R.Ev. 615(b) representative. BNSF asserts the court erred
when it determined the designation of Guitian as BNSF’s N.D.R.Ev. 615(b)
representative eliminated the need for Guitian to have personal knowledge of

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the policies and decision-making regarding the cutting of vegetation at the
crossing where the accident occurred.

[¶7] Rule 615, N.D.R.Ev., serves the twin purposes of (1) preventing one
witness’ testimony from influencing the testimony of other witnesses; and (2)
aiding in detecting false testimony and credibility issues. Nesvig v. Nesvig,
2006 ND 66, ¶ 20, 712 N.W.2d 299 (the purpose of sequestration is to prevent
one witness’ testimony from influencing another); State v. Buchholz, 2004 ND
77, ¶ 24, 678 N.W.2d 144 (sequestration permits discovery of false testimony
and credibility issues). Our statement of the purpose of Rule 615 is consistent
with Fed.R.Evid. 615 which served as the model for our rule. See, e.g., United
States v. Collins, 340 F.3d 672, 681 (8th Cir. 2003) (“The purpose of
sequestration is to prevent witnesses from tailoring their testimony to that of
prior witnesses and to aid in detection of dishonesty.”).

[¶8] Guitian testified as a lay witness. The testimony of lay witnesses is
governed by N.D.R.Ev. 602 which provides “[a] witness may testify to a matter
only if evidence is introduced sufficient to support a finding that the witness
has personal knowledge of the matter.” This Court has not previously
interpreted N.D.R.Ev. 615 as eliminating the need for a lay witness to have
personal knowledge of the matter upon which the witness is testifying. Rentz
has not directed us to any authority or decisions from other jurisdictions
interpreting an equivalent to our rule which would support elimination of the
need for a lay witness to have personal knowledge of the matter upon which
the witness is testifying.

[¶9] During the parties’ discussion with the court regarding BNSF’s objection
to the scope of Rentz’s examination of Guitian, several references were made
to the designation of corporate representatives pursuant to N.D.R.Civ.P.
30(b)(6) for the purpose of deposing an organization. Rule 30(b)(6) requires a
party seeking to depose a “public or private corporation, a partnership, an
association, a governmental agency, or other entity” to “describe with
reasonable particularity the matters for examination.” The “organization
must then designate one or more officers, directors, or managing agents, or
designate other persons who consent to testify on its behalf; and it may set

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out the matters on which each person designated will testify.” N.D.R.Civ.P.
30(b)(6). Additionally, the individuals designated to testify during the
deposition “must testify about information known or reasonably available
to the organization.”

[¶10] While the designation of a representative to remain in the courtroom
during trial pursuant to N.D.R.Ev. 615 and the designation of an
organizational representative for the purpose of a deposition pursuant to
N.D.R.Civ.P. 30(b)6) appear similar on their face, they serve a different
purpose. There is no requirement in Rule 615 that the representative
designated to remain in the courtroom during trial “must testify about
information known or reasonably available to the organization” as required
in the process provided within Rule 30(b)(6). Rule 615 does not act as a
substitute for the process described in N.D.R.Civ.P. 30(b)6) and does not
require the organization to expose its trial representative to examination
regarding all information known or reasonably available to the
organization.

[¶11] BNSF timely objected to the examination of Guitian on BNSF’s
vegetation control policies and BNSF’s decision not to follow those policies at
the location of the accident in this case. Prior to the objection, Guitian had
testified he did not have personal knowledge regarding those matters. We
conclude the court erred in requiring Guitian to testify on matters outside his
personal knowledge when he was cross examined on BNSF’s vegetation control
policies and whether those polices were followed at the location of the accident
in this case.

[¶12] Having found the trial court erred in permitting Guitian to testify to
matters outside his personal knowledge, we next consider whether the error
constitutes grounds to grant a new trial. The decision to grant or deny a new
trial rests within the sound discretion of the trial court, and its decision will
not be set aside on appeal absent an affirmative showing of a manifest abuse
of discretion. See, e.g., Sathren v. Behm Propane, Inc., 444 N.W.2d 696, 697

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(N.D. 1989); Roberts v. Hail Unlimited, a Div. of Int’l Bus. & Mercantile Re-
Assurance Co., 358 N.W.2d 776, 780 (N.D. 1984); Cullen v. Williams Cty., 446
N.W.2d 250, 252 (N.D. 1989). A trial court abuses its discretion when it acts
arbitrarily, unconscionably, or unreasonably, when its decision is not the
product of a rational mental process leading to a reasoned determination, or
when it misapplies or misinterprets the law. Haider v. Moen, 2018 ND 174, ¶
6, 914 N.W.2d 520.

[¶13] Pursuant to the “harmless error” rule, Rule 61, N.D.R.Civ.P., only errors
or defects which affect substantial rights of the parties will warrant a new trial.
Haider, at ¶ 6; Sathren, 444 N.W.2d at 698. Rule 61, N.D.R.Civ.P., states our
harmless-error standard in civil cases and reads as follows:

Unless justice requires otherwise, no error in admitting or
excluding evidence, or any other error by the court or a party, is
ground for granting a new trial, for setting aside a verdict, or for
vacating, modifying, or otherwise disturbing a judgment or order.
At every stage of the proceeding, the court must disregard all
errors and defects that do not affect any party’s substantial rights.

[¶14] Generally, the burden of showing both error and harm falls upon the
appellant. Kronberger v. Zins, 463 N.W.2d 656, 658–59 (N.D. 1990) (citing
Allen v. Kleven, 306 N.W.2d 629, 639 (N.D. 1981); Zimmer v. Bellon, 153
N.W.2d 757, 760 (N.D. 1967)). Here, BNSF has the burden to demonstrate the
error had an effect on a substantial right.

[¶15] This Court has not previously defined “harmless error” in the civil
context. In the criminal context, N.D.R.Crim.P. 52(a) directs that “[a]ny error,
defect, irregularity or variance that does not affect substantial rights must be
disregarded.”

[¶16] This Court has defined harmless error in a criminal case as follows:

Our objective in reviewing non-constitutional trial error is to
determine whether the error was so prejudicial that substantial
injury occurred and a different decision would have resulted
without the error. If not, it is “harmless error” . . . and is not ground
for reversal. Harmless error is defined as any error, defect,

5
irregularity or variance which does not affect substantial rights.
Stated simply, harmless error is error that is not prejudicial to the
defendant.

State v. Acker, 2015 ND 278, ¶ 12, 871 N.W.2d 603 (internal citations omitted).

[¶17] Many other jurisdictions have defined harmless error in civil cases. In
federal courts, the civil harmless error analysis operates as follows:

In Keil, the Eighth Circuit held that a similar Rule 23(h) [notice of
fees and nontaxable costs by counsel in class action] error was
harmless because “there [wa]s no reasonable probability that it
affected the outcome of the proceeding”—in particular, it said,
“even if class members had an opportunity to object to the fee
motion, there [wa]s no reasonable probability that their objections
would have resulted in the court awarding a lower fee.” The court
explained that the objectors “had an ample opportunity on appeal
to respond to the specific arguments contained within class
counsel’s fee motion” and “[d]espite raising a number of objections,
none of their arguments [were] meritorious.”

The Keil court’s analysis mirrors how we ordinarily conduct
harmless-error review—that is, by asking whether the
complaining party’s substantial rights have been affected. We have
explained that errors “affect a substantial right of a party if they
have a ‘substantial influence’ on the outcome of a case or leave
‘grave doubt’ as to whether they affected the outcome of a case.”

In a similar context, we have held that if a district court’s
misapplication of a Federal Rule doesn’t deny a party the
opportunity to present arguments that would have changed the
outcome, the error is harmless.

Johnson v. NPAS Solutions, LLC, 975 F.3d 1244, 1253-54 (11th Cir. 2020)
(internal citations and footnote omitted).

[¶18] Other state courts have also defined harmless error in the civil context.
See Richard v. Board of Sup’rs of Louisiana State University and A & M
College, 960 So.2d 953 n.13 (La. Ct. App. 2007) (clarifying the standard for
harmless error as, “[e]rror has been defined as harmless when it is ‘trivial,

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formal, merely academic, and not prejudicial to the substantial rights of the
party assigning it, and where it in no way affects the final outcome of the
case.’”) (citation omitted); Bay Point Properties, Inc. v. Mississippi Transp.
Comm’n, 201 So.3d 1046, 1056 (Miss. 2016) (“Error is harmless when it is
trivial, formal, or merely academic, and not prejudicial to the substantial rights
of the party assigning it, and where it in no way affects the final outcome of
the case; it is prejudicial, and ground for reversal, only when it affects the final
result of the case and works adversely to a substantial right of the party
assigning it.”) (citation omitted); Wyeth v. Rowatt, 244 P.3d 765, 778 (Nev.
2010) (to establish an error is prejudicial and therefore warrants a reversal
“the movant must show that the error affects the party’s substantial rights so
that, but for the alleged error, a different result might reasonably have been
reached.”); State v. Zamora, 575 P.2d 1355, 1359 (N.M. 1978) (defining
“harmless error” as one that is “not prejudicial to the substantial rights of the
party assigning it, and in no way affected the final outcome of the case.”)
(citation omitted); Bank of Pleasant Grove v. Johnson, 552 P.2d 1276, 1278
(Utah 1976) (“Error is harmless when it is trivial, formal, or merely academic,
and not prejudicial to the substantial rights of the party assigning it, and
where it in no way affects the final outcome of the case; it is prejudicial, and
ground for reversal, only when it affects the final result of the case and works
adversely to a substantial right of the party assigning it.”) (citation omitted).

[¶19] While we have not defined harmless error in the civil context, we have
often applied the rule. One application was in Johnson v. Buskohl
Construction, Inc., 2015 ND 268, ¶ 17, 871 N.W.2d 459, where defendant
Buskohl claimed it was prejudiced when the district court erred by admitting
hearsay evidence to support Johnson’s damage claim. We agreed the court
erroneously admitted the evidence, and proceeded to examine whether the
error was harmless. Id. at ¶¶ 27-28. In reversing the jury verdict, this Court
concluded, “we [were] not able to determine what evidence the jury relied on
or disregarded when it calculated its award. Without reviewing a categorically
itemized special verdict form, we cannot rule out the possibility the jury relied
on inadmissible hearsay in calculating a substantial portion of its award.” Id.
at ¶ 30 (citation omitted). As a result, we concluded that, “because a
substantial proportion of the award could have been based on inadmissible

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hearsay evidence, Buskohl’s substantial right to a fair trial was affected.
Therefore, Buskohl has established his substantial right to a fair trial was
affected by the erroneous admission of the estimate.” Id.

[¶20] BNSF argues Guitian lacked sufficient knowledge to BNSF’s internal
vegetation policies and procedures, and whether BNSF had consciously
decided not to follow its internal policies and procedures. During cross-
examination of Guitian, the following exchange occurred regarding Guitian’s
position with BNSF and his lack of knowledge about maintaining trackside
vegetation:

Q. Now, at the time of the train wreck you did not understand, you
didn’t know the rules about cutting the right-of-way back to 200
feet because you weren’t the one that cut the trees, right?

A. Right. We’re inoperate in February [SIC], we’re not
Maintenance of Way.

Q. Well, here’s what I’m trying to get at. We asked you whether or
not you knew the rules about how the Maintenance of Way was
supposed to cut the trees. And you said you didn’t, correct?

A. Right, I don’t.

Q. Because you’re—you are a professional engineer, correct?

A. Correct.

Q. The BNSF has professional engineers that don’t drive trains
that they do things at crossings. Like make sure there’s proper
sight distance, correct?

A. Correct.

Q. So we saw those engineering rules before about cutting the
vegetation. Those engineering rules don’t apply to you, or—strike
that. They’re not directed to you because you’re an engineer that
drives a train, correct?

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A. Correct.

Q. There’s a different set of engineers that are engineers that take
care of the tracks, that take care of the right-of-way, correct?

A. Correct.

Q. And there’s a group called the Maintenance of Way, correct?

A. Correct.

Q. And the Maintenance of Way means the maintenance of the
right-of-way, correct?

Immediately following Guitian’s description of his lack of knowledge about
vegetation control, the following occurred in front of the jury:

Q. And—Okay. Let’s put up—Well first of all, let’s put up the
BNSF rule that requires a—

Mr. Thornton [BNSF’s counsel]: Objection. No foundation.
Objection, this witness has already disqualified himself from
knowing about the engineering rules.

Mr. Davis [Rentz’s counsel]: Well—

The Court: Mr. Davis.

Q. Sure. You’re the BNSF corporate rep, correct?

Mr. Thornton: No.

Mr. Davis: Yes, he is. They announced it at the beginning of the
case he’s a corporate rep.

Mr. Thornton: No he’s not. He’s the client representative who’s to
be here, he’s not the corporate rep.

Mr. Davis: Your Honor.

The Court: Counsel, please approach.

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The following exchange occurred at the subsequent bench conference:

The Court: My recollection from the first day when it was asked
whether or not he could be in here, the question was posed by you,
and (indiscernible) corporate rep.

Mr. Thornton: No, he’s not the corporate rep, he’s the client
representative who attends the trial, but he’s not a corporate rep.

Mr. Davis: The only reason he can sit through this trial and hear
everyone who testified is if he’s the corporate rep.

The Court: And that’s what I thought you stated, Mr. Thornton.

Mr. Thornton: No, I stated that he was the trial representative,
but he’s not the corporate rep. He’s an engineer. He’s in the union.

Mr. Davis: There’s no such thing as a someone who’s just a client
representative. Either he’s a corporate or he’s not the corporate
rep. If he’s not corporate rep, he’s shouldn't have been in this
courtroom.

The Court: I agree. Anything further?

Mr. Davis: No.

The Court: Okay.

Mr. Thornton: He’s not the corporate rep.

The Court: Okay.

Mr. Davis: Thank you.

Back in front of the jury, Rentz’s counsel returned to questioning Guitian about
BNSF’s vegetation policies:

Mr. Davis: So, let’s put up 12, the rule, the one, yeah, right down
there at the bottom. So Exhibit 3, Your Honor, we’re putting up—

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Mr. Thornton: What page is this?

Mr. Davis: Everyone’s seen this. And you’ve seen it Mr. Guitian,
correct?

A. Correct.

Q. As the corporate rep of BNSF sitting in this courtroom, correct?

A. Correct.

Q. It says the vegetation at every public crossing, and you know
this public crossing, correct?

A. Correct.

Q. Must comply with federal standards and state laws, as
minimum, vegetation shall be controlled for the full width of the
railroad’s right-of-way at the crossing, and then taper down for the
next 500 feet. Do you see that?

A. Yes I do.

Q. We can see the figure above it, it says figure 12.3 of a first or a
figure, 12.3. Let’s go to 12.3 on the next page. So 12.3 shows the
typical pattern up top, let’s look at that. Do you see that’s the width
of the right-of-way tapered back 500 feet, correct?

A. Correct.

Rentz’s counsel also questioned Guitian about BNSF’s General Code of
Operating Rules as applied to vegetation control:

Q. So GCOR is General Code of Operating Rules, correct?

A. Correct.

Q. And so—now—So we already did one now—Can you blow this
up a little so I can see?

Q. So the first one was basically be safe, correct?

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Q. Can you go down to—blow them both up at the same time. No,
the one above it. Okay. “Safety is the most important element in
performing duties. Obeying the rules is essential to job safety and
continued employment.” Did I read that right?

A. You did.

Q. The next rule right below it is, “In case of doubt or uncertainty,
take the safe course.” Correct?

A. Correct.

Q. And the safe course would be to cut those trees on the right-of-
way. They’re mandated by the rules, correct?

A. Correct.

Rentz’s counsel also questioned Guitian about BNSF’s interrogatory answers.
Guitian did not answer the interrogatories, had never seen the interrogatory
answers, and did not know about the subject matter. The questioning was
allowed under the erroneous determination the examination was permitted
because Guitian had been designated as BNSF’s trial representative pursuant
to Rule 615(b), N.D.R.Ev.:

Your Honor, I’m going to show him defendant BNSF railroad
company’s second supplemental answers to plaintiff’s second
interrogatories. Interrogatories are written questions. They’ve
asked us a bunch. We’ve asked them a bunch. You have to answer
them under oath.

The Court: Before you put that up, please approach.

Mr. Davis: Sure.

(AT SIDEBAR)

Mr. Davis: It says they did—

The Court: Get your microphones off. The use of interrogatories?

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Mr. Davis: Yes. And for whatever reason, I think I objected last
week. He had him agreeing to what Trooper Hurteau said about
the measurements and the train. These show that BNSF says
they’re wrong. He’s the BNSF corporate rep. So they’re sworn
interrogatory statements. I can use them at trial. This is cross-
examining BNSF. These are BNSF interrogatories.

The Court: Mr. Thornton?

Mr. Thornton: First of all, the pleadings are out, pursuant to the
Court’s motion in limine, and this witness has no idea what the
interrogatories said. He wasn’t consulted.

Mr. Davis: He is a BNSP [sic] corporate rep, but Your Honor,
pleadings are generally out like petitions and answers, but
interrogatory answers can be used in a trial. In fact, there’s an
instruction on it that says interrogatories can be used at trial.

The Court: He testified he is the corporate rep.

Mr. Thornton: So—

The Court: That was just moments ago.

Mr. Thornton: He’s not the corporate rep. He’s a client
representative for the trial.

The Court: Okay. But when asked, he testified about ten minutes
ago that he was the corporate rep. So rather than publishing, if
you would like him to review it, but I would prefer at this junction
that it not be published before the jury.

Shortly after the bench discussion, Rentz’s counsel asked Guitian about
BNSF’s interrogatory answers and again referred to Guitian as BNSF’s
corporate representative:

Q. No. So, BNSF says Trooper Hurteau’s measurements were
wrong, correct?

A. It just says he doesn’t remember it, yeah.

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Q. No. I’m going to ask the next question, number 28. Does
BNSF—The interrogatories indicate that BNSF does not agree to
measurements of Trooper Hurteau, correct?

A. Correct.

Q. All right. And you are a BNSF representative, correct?

A. Yes, I am. As an engineer, yes.

Rentz’s counsel again asked Guitian about BNSF vegetation policies, and
again referred to Guitian as BNSF’s corporate representative:

Q. Okay. Then, of course BNSF knows about its own rules that you
have to cut the trees from the full width of the right of way, correct?

A. Correct.

Q. And in this case, it’s 200 feet, correct?

A. Correct.

Q. You saw where BNSF corporate reps replayed those clips of the
video? Said they could have cut it to 200 feet, but they decided not
to, correct?

A. Correct.

Q. So that would be BNSF, you’re the corporate rep. BNSF making
a conscious decision to not follow the rules, correct?

A. Correct.

Q. Those are safety rules, correct? Those are rules to keep people
safe at crossings, correct?

A. Correct.

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Q. And finally, because of BNSF’s trees, Mr. Rentz didn’t see you
until it was too late, and you didn’t see him until it was too late,
correct?

A. Partially, yes.

During closing arguments Rentz’s counsel told the jury how they should
complete the verdict form and continued to erroneously refer to Guitian as
BNSF’s corporate representative. After recounting what Rentz’s counsel
described as Guitian’s “admissions,” PowerPoint slides with bullet points and
testimony quotations were used to highlight the “admissions.” The transcript
contains the following:

So go to the next one. “So it would have been safer for you and for
the trucker if those trees were not there. Correct?”

“Correct.”

“And those trees still exist there, at least as far as you know, on
July 13th, 2016. Correct?”

“Correct.”

Next slide. “So in real life, you have 1001 indicating, and not seeing
it in a second creates a trap where you get hit by a train. That’s
not safe. Correct?”

“Correct.”

You are officers of the court, bound to follow the law and the
evidence. That is evidence that their corporate rep—he was
working as their corporate rep—said that it was a trap, not seeing
in a second creates a trap where you get hit by a train. “That’s not
safe. Correct?” So you know what—the last sentence is:

“So you know what—you admit this all happened real
fast. Real fast. Correct?”

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Rentz’s counsel continued his argument describing to the jury his
interpretation of Guitian’s testimony, including that they were BNSF’s
“admissions” that “[c]an’t be taken back”:

Next slide. “And a safe course would be to cut those trees on the
right-of-way, mandated by the rules. Correct?”

“Correct.”

Once again, admission. Can’t be taken back. Next slide. “You know
that for decades BNSF knew about these trees on the right-of-way.
Correct?”

“From what I’ve heard, yes. Correct.”

Next slide. “And, of course, BNSF knows its own rules, that you
have to cut the trees for the full width of the right-of-way. Correct?”

“Correct.”

“And in this case it’s 200 feet. Correct?”

“Correct.”

“And you saw where BNSF corporate reps were playing those clips
of the video. They said they could have cut it to 200 feet, but they
decided not to. Correct?”

“Correct.”

“So that would be BNSF—you’re the corporate rep—BNSF making
a conscious decision to not follow their rules. Correct?”

“Fair.”

“And those are safety rules. Correct? Those are rules to keep people
safe at crossings. Correct?”

“Correct.”

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Now just stay there for a second. Premeditated. You understand
what premeditated is. When you have a second or two to decide
something, that’s different, which is what David Rentz said. When
you make a conscious decision, it’s premeditated. And what they
did was make a conscious decision not to cut those trees.

Next slide. “So at the time of your deposition you agreed he didn’t
see you until it was too late, and you didn’t see him until it was too
late. Correct?”

“Correct.”

So this is an eyewitness there, they called here, eyewitness who’s
saying that this is a trap and that he couldn’t see and Mr. Rentz
couldn’t see until it was too late.

Now, we got to ask yourself, why didn’t they bring the conductor
in? The conductor was on the side closer. BNSF could bring in this
conductor, their conductor. There’s three eyewitness [sic], in effect,
to a train wreck: Mr. Rentz, who doesn’t remember what
happened; Mr. Guitian; and Gene Thompson. They didn’t bring
Gene Thompson. What do you think that means?

Now, let’s go to the next slide. “The trees were a big part of how
this train wreck happened, weren’t they?”

“Correct.”

If you need any more support for them being at fault or being a
proximate cause, then look at that. That’s what their corporate rep
said. Eyewitness.

[¶21] The above quotations of Guitian’s testimony and the closing arguments
show Rentz’s entire theory of liability was that the collision occurred because
BNSF failed to remove trees on its right-of-way. In the last sentence quoted
above, Rentz tied Guitian’s claimed admissions to BNSF, and told the jury that
was all they needed to find BNSF at fault and that its fault proximately caused
Rentz’s injuries. Rentz’s calculated and repeated use of improperly admitted
evidence was neither incidental nor isolated.

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[¶22] The only other information before the jury on BNSF’s alleged admissions
about failure to follow vegetation control policies and laws were from
deposition clips played by Rentz’s counsel during closing arguments. But, as
the district court instructed the jury, those arguments were not evidence:

The case is argued by a lawyer for each side as to what they
consider the evidence has shown and as to what inferences they
contend you should draw from the evidence. Closing argument is
not evidence. The arguments are designed to present to you the
viewpoint of each side based on the evidence presented.

[¶23] A review of the record as a whole demonstrates Rentz regularly repeated
and heavily relied on the inadmissible evidence. After reviewing the record we
are “not able to determine what evidence the jury relied on or disregarded”
when it found liability. Johnson v. Buskohl Construction, Inc., 2015 ND 268,
¶ 30. Additionally, “because a substantial proportion of the award could have
been based on inadmissible [...] evidence, [BNSF’s] substantial right to a fair
trial was affected. Therefore, [BNSF] has established [its] substantial right to
a fair trial was affected by the erroneous admission of the [evidence].” Id. The
court abused its discretion in denying BNSF’s motion for a new trial where
improperly admitted evidence affected a substantial right to a fair trial.

III

[¶24] BNSF has raised several other issues on appeal, including: whether
video and audio clips taken from discovery depositions of BNSF’s designated
representatives were improperly played during opening and closing
arguments; whether BNSF’s internal operating procedures were improperly
used to modify the standard of care; and whether opinion testimony of the
investigating highway patrol trooper was excluded from evidence. Resolution
of these remaining issues on appeal is unnecessary in light of our remand to
the district court.

[¶25] We review the denial of a motion for a new trial for an abuse of discretion
by the court. The court abused its discretion in denying the motion for a new

18
trial because the examination of BNSF’s designated trial representative
exceeded the scope of his personal knowledge, and the subsequent use of the
testimony had an affect on the substantial right of BNSF to have a fair trial.
We reverse the judgment of the district court and remand this case to the
district court for a new trial.

[¶26] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte