United States District Court, D. Colorado
ANTHONY J. SMITH, Plaintiff,
v.
BNSF RAILWAY COMPANY, a Delaware corporation, Defendant.
ORDER
KATHLEEN M. TAFOYA MAGISTRATE JUDGE
This
matter is before the court on “BNSF Railway
Company's Amended Motion and Brief in Support for
Bifurcation of Plaintiff's FELA and FRSA Claims for
Trial” [Doc. No. 77]. Plaintiff responded in opposition
[Doc. No. 79] and Defendant replied [Doc. No. 83].
The
chronology of events underlying both Plaintiff's Federal
Employers' Liability Act
(“FELA”)[1] and Federal Railroad Safety Act
(“FRSA”)[2] claims is set forth in this court's
recently-issued comprehensive Order on summary judgment [Doc.
No. 73] (“SJ Order”) and will not be again
recited in detail here. Suffice to say that both claims have
interwoven facts from beginning to end and stem from the same
events over a relatively short period of time from
approximately May through early September 2015. (Id.
at 2-4.) Pursuant to FELA, Plaintiff claims that BNSF
provided an unsafe work environment that led to his physical
injury on July 22, 2015. Pursuant to FRSA, Plaintiff claims
that he was fired because he filed an injury report about the
July 22, 2015 injury, a protected activity. BNSF claims the
FELA injury report was false. Defendant's primary
assertions, as best the court can ascertain pre-trial, are
that Plaintiff was not injured by any negligence on the part
of BNSF and that, if he was injured on the job at all, that
injury happened in May 2015 and not in July 2015. Defendant
argues, therefore, that anything to the contrary reported by
Plaintiff in July 2015 was an intentional falsehood.
Defendant asserts, then, that it does not owe any damages
under FELA to the Plaintiff and that the Defendant was
justified in terminating Plaintiff's employment based on
his dishonesty in connection with the FELA report and the
following investigations. Plaintiff counters that not only
was he not dishonest, the dishonesty allegation is a pretext
for the real reason he was fired-for engaging in the
protected activity of filing a claim for injury pursuant to
FELA. As this court stated in the SJ Order, “[w]ithout
a doubt, the primary dispute in this case is whether
Plaintiff suffered a work-related injury in May 2015 or in
July 2015 or both or neither.” (Id. at 9.) The
origin of the physical injury, if any, underlies both the
FELA negligence claim and the FRSA retaliation claim, given
that BNSF's purported reason for terminating Plaintiff
shortly after the FELA report was made was his dishonesty
about the injury and the claim.
Obviously,
Defendant is correct in arguing that the FELA and the FRSA
claims involve separate and distinct elements, defenses, and
remedies. (Mot. at 2.) The elements of a FELA claim are that:
(1) Plaintiff was injured within the scope of his employment;
(2) his employment was in furtherance of the railroad
company's interstate transportation business; (3) that
the railroad company was negligent; and (4) that the railroad
company's negligence played some part in causing the
injury for which the plaintiff seeks compensation under FELA.
Wright v. BNSF Ry. Co., 177 F.Supp.3d 1310, 1314
(N.D. Okla. 2016). For a FRSA claim, the elements are that
(1) Plaintiff engaged in protected activity; (2) BNSF knew
about the protected activity; (3) BNSF subjected Plaintiff to
an unfavorable personnel action; and(4) the protected
activity was a “contributing factor” in the
unfavorable personnel action. BNSF Ry. Co. v. United
States DOL, 816 F.3d 628, 638 (10th Cir. 2016);
Kuduk v. BNSF Ry. Co., 768 F.3d 786, 789 (8th Cir.
2014). BNSF's allegations are that Plaintiff lied about
his FELA injury in a report made to BNSF-that he either was
not injured at all or that he was not injured in the manner
he reported. The evidence to support-or alternatively to
defend against-either claim will be, at least in large part,
duplicative.
A party
seeking to bifurcate issues for trial has the burden of
proving that separate trials will (1) promote convenience,
(2) avoid unfair prejudice to a party, or (3) expedite and
economize the proceedings. See Fed. R. Civ. P. 42(b)
(allowing courts “[f]or convenience, to avoid
prejudice, or to expedite and economize . . ., [to] order a
separate trial of one or more separate issues, claims,
crossclaims, counterclaims, or third-party claims.”);
Batchelor v. Viking Ins. Co. of Wisconsin, No.
11-CV-02091-PAB-MJW, 2012 WL 2054807, at *1 (D. Colo. June 7,
2012). Generally, “the party seeking bifurcation has
the burden of showing that separate trials are proper in
light of the general principle that a single trial tends to
lessen the delay, expense and inconvenience.”
Belisle v. BNSF Ry. Co., 697 F.Supp.2d 1233, 1250
(D. Kan. 2010). Bifurcation is the exception, not
the rule. Am. Family Mut. Ins. Co. v. Haslam, No.
09-CV-00724-DME-MEH, 2011 WL 1042284, at *1 (D. Colo. Mar.
22, 2011).
Courts
have wide discretion in deciding whether to bifurcate or
sever issues for trial. Easton v. City of Boulder,
Colo., 776 F.2d 1441, 1447 (10th Cir. 1985). Although it
is not an abuse of discretion to bifurcate a trial if the
interests of judicial expedition and economy “favor
separation of issues and the issues are clearly separable,
” bifurcation is an abuse of discretion if it is unfair
or prejudicial to a party. Angelo v. Armstrong World
Indus., Inc., 11 F.3d 957, 964 (10th Cir. 1993). Such
prejudice includes improper bifurcation where the issues are
so closely interwoven that the plaintiff would have to
present the same evidence twice, or thrice, in separate
trials. See 2 James Wm. Moore, et al., Moore's
Manual: Federal Practice ¶ 20.03[4][c] (3d ed. 2012).
The
Defendant has failed to set forth adequate justification for
bifurcation in this case. Evidence concerning the injury, if
any, when it occurred, and how it happened are relevant to
the affirmative FELA claim and also to Plaintiff's FRSA
claim to counter Defendant's claim that Plaintiff lied
about the injury in his report. Bifurcation would
unreasonably expand the proceedings and would be prejudicial
to the Plaintiff in having to present his case twice, or even
three times if the punitive damages issue were to be
bifurcated. Defendant's claim that it would suffer
prejudice by having all the evidence presented in one trial
is unsupported. While the court agrees that some evidence
would be relevant to one claim and not necessarily to the
other, courts routinely handle these matters through limiting
instructions to the jury that the parties will be
instrumental in preparing. This court disagrees that limiting
instructions in this case will be too complicated for a jury
to understand. As stated by the Supreme Court,
“[u]nless we proceed on the basis that the jury will
follow the court's instructions where those instructions
are clear and the circumstances are such that the jury can
reasonably be expected to follow them, the jury system makes
little sense.” Bruton v. United States, 391
U.S. 123, 135 (1968). See also United States v.
Brooks, 736 F.3d 921, 941 (10th Cir. 2013)
(“absent a showing to the contrary, we presume jurors
will conscientiously follow the trial court's
instructions.”) (internal quotations omitted.)
Because
conducting a single trial on the two claims at issue in this
case will expedite and economize the proceedings and promote
convenience for the parties as well as avoid unfair prejudice
to the Plaintiff occasioned by presenting duplicative
evidence in numerous cases, it is
ORDERED
“BNSF
Railway Company's Amended Motion and Brief in Support for
Bifurcation of Plaintiffs FELA and FRSA Claims for
Trial” [Doc. No. 77] is DENIED.
---------
Notes:
[1] FELA holds railroads liable for
employees' injuries “resulting in whole or in part
from [carrier] negligence.” 45 U.S.C. §
51.
[2] FRSA provides that a railroad
“may not discharge, demote, suspend, reprimand, or in
any other way discriminate against an employee if such
discrimination is due, in whole or in part, to the
employee's lawful, good faith act done, or perceived by
the employer to have been done or about to be done . . . to
notify, or attempt to notify, the railroad carrier or the
Secretary of Transportation of a work-related ...