Melton v. BNSF Railway Co.

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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