Anderson v. BNSF Ry. Co.

681 F.Supp.3d 899

Bradley A. ANDERSON, Plaintiff, v. BNSF RAILWAY COMPANY, Defendant.

No. 3:22-cv-00012-RGE-WPK

United States District Court, S.D. Iowa, Davenport Division

Signed July 6, 2023

Kent A. Gummert, Lederer Weston Craig PLC, West Des Moines, IA, Isabel Sally Johnson, Pro Hac Vice, Thomas W. Fuller, Pro Hac Vice, Hunegs, Leneave & Kvas, P.A., Wayzata, MN, for Plaintiff.

Mitchell R. Kunert, Nyemaster Goode PC, Des Moines, IA, Michael B. Stillman, Pro Hac Vice, Richard T. Sikes, Jr., Pro Hac Vice, Knight Nicastro MacKay, Chicago, IL, Mitchell P. Hedrick, Pro Hac Vice, Richard M. Tomich, Pro Hac Vice, Knight Nicastro MacKay, LLC, Peoria, IL, for Defendant.

ORDER

Rebecca Goodgame Ebinger, United States District Judge

I. INTRODUCTION

In this Federal Employers' Liability Act case, Plaintiff Bradley A. Anderson alleges he was injured when he hit his head on a sign placed too close to the railroad tracks when he was working for Defendant BNSF Railway Company. Anderson asserts negligence per se and negligence claims. He moves for dispositive sanctions for spoliation of evidence under Federal Rule of Civil Procedure 37 and the inherent power of the Court because BNSF removed the sign before he could examine it. In the alternative, Anderson moves for summary judgment on his claims. BNSF resists Anderson's motion for sanctions and summary judgment.

The Court grants Anderson's motion for sanctions pursuant to its inherent power. The Court finds BNSF's intentional spoliation of evidence substantially prejudiced Anderson's ability to prove his claims on the merits. The severity of BNSF's misconduct warrants the sanction of default judgment on the issues of liability and causation. BNSF is precluded from raising a defense of contributory negligence. The case will proceed to jury trial on the issue of damages only. The Court also finds it is appropriate to require BNSF to pay attorneys' fees and costs incurred by Anderson as a result of its spoliation of evidence.

II. BACKGROUND

Anderson was injured on March 22, 2019, while working as a brakeman for BNSF at the company's railyard in Burlington, Iowa. Def.'s Resp. Pl.'s Statement Material Facts ¶¶ 1, 15-25, ECF No. 40-1. Anderson was riding on the side ladder of a moving railcar when he allegedly hit his head on a metal milepost sign—milepost sign 205—as the train rounded a curve on the Ottumwa Subdivision Main Track 2. Id. ¶¶ 12-15; see also Pl.'s App. Supp. Pl.'s Mot. Sanctions & Summ. J., Anderson Dep. 85:23-87:1, ECF No. 35-2 at 15. There was no "close clearance" warning sign in the vicinity of the milepost sign. ECF No. 40-1 ¶ 21.

Iowa Code § 327F.13 requires the Iowa Department of Transportation to "implement the placement of close-clearance warning signs along railroad tracks where the close clearance between the tracks and an obstruction physically impedes a person who is lawfully riding the side of a train from clearing the obstruction."¹ Iowa Admin. Code r. 761-813.1(327F); see Iowa Code § 327F.13. Under Iowa law, a close-clearance situation is created for a tangent track, i.e., a track segment without any curves, where there is an obstruction that falls within eight feet laterally from the centerline of the track. Iowa Admin. Code r. 761-813.4, 761-813.5(1). For a curved track, clearances on each side of the track centerline must be increased by one-and-one-half inches per degree of curvature to avoid creating a close-clearance situation. Iowa Admin. Code r. 761-813.5(327F)(1). Where there is a close-clearance situation, Iowa law requires the owner of the track to place a warning sign at a location that provides adequate notice or remove the obstruction that is placed within the close-clearance dimensions. Iowa Code § 327F.13-1 to -2. An "owner" is defined as "the railroad company, industry, agricultural cooperative, other entity, or individual that holds a fee simple title, easement, leasehold, contract to purchase, license, or other legal or equitable interest or right in the railroad track, and is in primary possession and control of the railroad track." Iowa Admin. Code r. 761-813.4(327F). BNSF's internal standards specify "all signs are to be placed no closer than 14 [feet] from [the] center line track, where practical." ECF No. 35-2 at 63. This distance is consistent with the generally accepted industry standard. See Keller Dep. 154:16-21, ECF No. 35-2 at 87.

BNSF Claims Department Manager Christopher Van Norman and BNSF Roadmaster Steve Pumphrey examined the area surrounding milepost sign 205 on or about March 25, 2019. ECF No. 40-1 ¶ 48; Def.'s App. Supp. Resist. Pl.'s Mot. Sanctions & Summ. J., Van Norman Decl. ¶ 3, ECF No. 40-3 at DEF. APP. 60; Pl.'s Resp. Def.'s Additional Statement Material Facts ¶ 45, ECF No. 46-1. While investigating the scene, Van Norman took photographs of the tracks, railcar, and milepost sign 205. ECF No. 40-1 ¶ 55; Van Norman Dep. 12:6-8, 22:11-17, ECF No. 35-2 at 120, 122; see also ECF No. 35-2 at 88-113. Van Norman used a tape measure to measure the distance between milepost sign 205 and the tracks. Van Norman Dep. 12:9-15, 13:7-13, 14:21-15:1, ECF No. 35-2 at 120. Van Norman took several photographs featuring portions of the tape measure. ECF No. 40-1 ¶ 57; see also ECF No. 35-2 at 92-94, 102-04. None of the photographs show the full length of the tape measure. See ECF No. 35-2 at 92-94, 102-04. Van Norman did not check to confirm his photographs captured the measurements he was attempting to show. Van Norman Dep. 34:16-23, 36:14-37:11, ECF No. 35-2 at 125-26. Neither Van Norman nor Pumphrey wrote down the measurements. Id. at 12:22-13:5, 17:25-18:2, 18:15-25.

After photographing the incident site, Van Norman and Pumphrey removed milepost sign 205 from the ground. Van Norman Decl. ¶ 11, ECF No. 40-3 at DEF. APP. 61. Van Norman transported the sign to a BNSF evidence preservation storage locker in Galesburg, Illinois. Id. ¶ 12; Van Norman Dep. 22:11-21, ECF No. 35-2 at 122. Van Norman took two additional photographs of the sign at the evidence preservation storage location. Van Norman Decl. ¶ 14, ECF No. 40-3 at DEF. APP. 61. Van Norman alleges he created a "photo log" on March 27, 2019, detailing the date, time, and image number of each photograph he took at the incident scene, the direction from which each photograph was shot, and a "brief description" of the photographs. Id. ¶ 15.

Anderson filed suit against BNSF on March 2, 2022. Compl., ECF No. 1. Van Norman was deposed on February 17, 2023. See ECF No. 35-2 at 117. Van Norman was asked about his efforts to document the scene; he never mentioned the existence of a photo log. See Van Norman Dep. 6:7-11, 22:11-23:10, ECF No. 35-2 at 118, 122. Van Norman stated the only effort he made to preserve the distance from milepost sign 205 to the railroad tracks was the taking of photographs. Id. at 18:15-19, 22:11-23, 23:7-10. Van Norman reviewed the photographs he took at the incident scene prior to his deposition. Id. at 6:7-11. He was shown the photographs again during his deposition. Id. at 19:13-23. Van Norman was unable to testify as to the distance between the centerline and the sign based on the photographs. Id. at 6:12-16, 13:14-14:4, 15:2-5, 18:8-25, 29:10-18, 36:7-12. At his deposition, he repeatedly admitted he could not use the photographs to determine an accurate distance from milepost sign 205 to the railroad tracks. See id.

Pumphrey was also deposed. See Pumphrey Dep., ECF No. 35-2 at 38. Pumphrey also reviewed Van Norman's photographs in preparation for his deposition. Id. at 19:4-13, 21:17-22. Pumphrey similarly stated the photographs were insufficient for him to testify as to the distance between milepost sign 205 to the railroad tracks. Id. at 19:4-13, 22:11-15.

On March 6, 2023, Anderson filed a motion for sanctions and summary judgment. Pl.'s Mot. Sanctions & Summ. J., ECF No. 35. Four days later, BNSF's lead trial counsel, Richard T. Sikes Jr., sent Anderson's counsel the following document, which had not been previously produced during discovery. Sikes Decl. ¶ 10, ECF No. 40-3 at DEF. APP. 69.

PHOTO LOG

Image materials not available for display.

ECF No. 40-3 at DEF. APP. 64.

BNSF filed its resistance to Anderson's motion on March 30, 2023. Def.'s Resist. Pl.'s Mot. Sanctions & Summ. J., ECF No. 40. BNSF included in its supporting appendix a declaration from Van Norman dated one week prior. Van Norman Decl., ECF No. 40-3 at DEF. APP. 60-63. In his declaration, Van Norman claimed he had reviewed the photographs he took at the incident scene alongside the photo log. Id. ¶ 22. Having "refresh[ed] [his] memory," Van Norman stated the photographs recorded the following measurements:

• Image # 1626: Measurement from nearest rail of Ottumwa Subdivision Main 2 track to MP 205 (approximately 70")

• Image # 1627: Measurement from nearest rail of Ottumwa Subdivision Main 2 track to nearest rail of Hannibal Subdivision track (approximately 12' 4" to edge)

• Image # 1628: Wider view of tracks, MP 205, and measurements depicted in Images # 1626 and 1627 . . .

• Image # 1643: Measurement from midpoint between Ottumwa Subdivision Main Tracks 1 and 2 to MP 205 (approximately 15' 8")

• Image # 1644: Measurement from center of Ottumwa Subdivision Main Track 2 to MP 205 (approximately 100")

• Image # 1645: Measurement from center of Ottumwa Subdivision Main Track 2 (zoomed out view) to MP 205 and showing Mr. Pumphrey (approximately 100").

Id. Anderson contends Van Norman's declaration is a sham affidavit. Pl.'s Reply Br. Supp. Pl.'s Mot. Sanctions & Summ. J. 8-23, ECF No. 46. Van Norman provides no explanation as to why he did not have access to the photo log before or during his deposition. See generally Van Norman Decl., ECF No. 40-3 at DEF. APP. 60-63. He also offers no legitimate explanation for his revised assertion he can "clearly" see the measurements set forth in the photographs.² See id. ¶ 16.

Anderson moves for sanctions against BNSF under Federal Rule of Civil Procedure...