Spotted Horse v. BNSF R.R. Co., 2015 MT 148 (May 29, 2015) (Cotter, J.; Wheat, J., concurring; McKinnon, J., dissenting) (6-1, rev’d)
Issue: (1) Whether the district court abused its discretion in declining to grant plaintiff’s motion for default judgment based on spoliation of evidence; and (2) whether the district court abused its discretion when instructing the jury as to BNSF’s duty of care.
Short Answer: (1) No, but the sanction it imposed was an abuse of discretion; and (2) yes.
Reversed and remanded for a new trial
Facts: Mark Spotted Horse, a BNSF Railway machinist, claimed that he suffered a disabling injury when his co-worker inadvertently lowered a locomotive engine compartment hatch in his head. Spotted Horse reported the incident and was immediately taken to the hospital. Shortly after, Spotted Horse filed an employee injury report indicating the rope used to lower the engine had slipped through his co-worker’s hand. BNSF General Foreman McLeod immediately began investigating and collecting evidence.
The diesel shop had a digital camera recording system, consisting of multiple video cameras positioned at various locations throughout the shop stalls. The cameras ran 24 hours a day, seven days a week, generating footage that was viewable in real time on a monitor in the shop supervisor’s office. Absent a video footage request within specified period of time, usually 15-30 days, old video footage is automatically overwritten with new video footage.
Spotted Horse maintains that he asked for a copy of the video footage during a post-incident interview. He made several discovery requests for videos and photographs of the area where the injury occurred. BNSF initially produced three photos, but never referenced or provided any video footage. Spotted Horse eventually moved to compel, and BNSF responded that the foreman had requested video footage, but it had already been overwritten, and that BNSF had no record of the video being requested during the six weeks after the accident.
In a deposition, the foreman testified that he and the shop superintendent had watched about 15 minutes of video footage the evening of the incident, but said the camera he watched did not capture the area where the incident occurred. He stated he had not viewed video from any other camera in the shop and agreed other cameras may have captured the incident. The shop superintendent testified similarly in his deposition.
In July 2012, Spotted Horse moved for a default judgment against BNSF on liability, causation, and contributory negligence based on the alleged spoliation of video footage and other discovery abuses. The district court denied the motion,, but prohibited BNSF from referring to any testimony or evidence about the video footage unless Spotted Horse first introduced the information.
Procedural Posture & Holding: At trial both parties presented testimony and evidence about the relevancy and unavailability of the video footage. The jury was instructed that if it appears a party destroyed or concealed evidence, any contrary evidence from that party should be viewed with distrust. The jury was also instructed over Spotted Horse’s objection, that BNSF was not obligated to eliminate all risks in the work place, only unreasonable risks. The jury returned a verdict for BNSF, and Spotted Horse moved for a new trial. The district court denied the motion, and Spotted Horse appeals. The Supreme Court reverses and remands for a new trial.
Reasoning: (1) Spotted Horse contends BNSF’s intentional destruction of video footage caused irreparable prejudice and prevented fair resolution of his claim. As a sophisticated and recurrent party to litigation, BNSF is aware of its obligation to preserve evidence. It has been admonished in previous cases for concealing or disposing of evidence. The district court here correctly reasoned that BNSF should not be allowed to benefit form its failure to preserve the video footage, but undermined that by imposing a sanction that placed Spotted Horse in a lose-lose position. The court’s instruction to view BNSF’s evidence with distrust was inadequate to cure the prejudice.
It is impossible to determine whether the video destruction was intentional or inadvertent. Because of that, the Court finds the district court’s denial of Spotted Horse’s request for a default judgment was not an abuse of discretion. However, the district court did abuse its discretion in declining to impose a meaningful sanction on the railroad. The judgment is reversed and the matter remanded for a new trial, at which the court shall fashion a sanction commensurate with the significance of BNSF’s actions and satisfying the remedial and deterrent goals of sanctions for spoliation.
(2) The Court agrees that the jury instruction on BNSF’s duty of care is incorrect, and seemingly contradicts another jury instruction, to which neither party objected. The challenged jury instruction shall not be given on remand.
Justice Wheat’s Concurrence: Justice Wheat would remand with an instruction to enter default judgment for Spotted Horse, as “the audacity of the spoliation in this case warrants more than a mere negative inference in favor of Spotted Horse.” ¶ 45. “Montana courts should not shrink from granting default judgment where, as here, spoliation is willful, in bad faith, or knowingly committed in order to obscure the truth and to prevent accurate decision making.” ¶ 51.
Justice McKinnon’s Dissent: Justice McKinnon is troubled by the Court’s decision to sanction BNSF not just on its conduct in this case, but on its alleged prior bad acts in previous cases. She believes the Court’s “inquiry should be limited to the circumstances before us and not focused on punishing a litigant we perceive to be a bad actor.” ¶ 54. Justice McKinnon concludes that BNSF’s failure to adopt any policy for the preservation of evidence regarding workplace injuries is negligent spoliation, if not more. However, she would not conclude that the district court abused its discretion by failing to impose stronger sanctions. Additionally, she believes the jury instructions taken as a whole adequately instructed the jury as to an employer’s duty of care.