George Keith Day v. Bnsf Railway Co.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

20-369

GEORGE KEITH DAY, ET AL.
VERSUS

BNSF RAILWAY CO., ET AL.

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 128692
HONORABLE VINCENT J. BORNE, DISTRICT JUDGE

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VAN H. KYZAR
JUDGE

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Court composed of Shannon J. Gremillion, Van H. Kyzar, and Jonathan W.
Perry, Judges.

AFFIRMED.

Thomas Reginald Hightower, Jr.

Attorney at Law

P. O. Drawer 51288

Lafayette, LA 70505

(337) 233-0555

COUNSEL FOR DEFENDANTS/APPELLANTS:
BNSF Railway Co.
Tyrone Clark

John Edmund McEliigott, Jr.

Robert D. Felder

Mark Gideon

Davidson, Meaux, Sonnier

P. O. Box 2908

Lafayette, LA 70502-2908

(337) 237-1660

COUNSEL FOR DEFENDANTS/APPELLANTS:
Tyrone Clark
BNSF Railway Co.

Daniel Albert Claitor

Attorney at Law

7520 Perkins Road, Suite 170

Baton Rouge, LA 70808

(225) 767-0159

COUNSEL FOR PLAINTIFFS/APPELLEES:
The Estate of Stephen Leblanc, Jr.
Stephen Leblanc, III

Kirk Andrew Guidry

Due, Price, Guidry

8201 Jefferson Hwy.

Baton Rouge, LA 70809

(225) 929-7481

COUNSEL FOR PLAINTIFFS/APPELLEES:
Monic Porrier obo T. S. Estate (minor)
Reschelle Potier obo J. D. Estate (minor)
Rechelle Potier
Dustin Daigle obo J. D. Estate (minor)

Richard Thomas Gallagher, Jr.

Gallagher Law Firm

111 Veterans Blvd, Ste 1400

Metairie, LA 70005

(504) 882-2220

COUNSEL FOR PLAINTIFFS/APPELLEES:
Jody Day obo Phyllis Leblanc Estate

Harry Karl Burdette
The Glenn Armentor Law Corp.

300 Stewart St.

Lafayette, LA 70501

(337) 233-1471

COUNSEL FOR PLAINTIFFS/APPELLEES:
Dustin Daigle
Dustin Daigle obo J. D. Estate (minor)
Monic Porrier obo T. S. Estate (minor)
Reschelle Potier obo J. D. Estate (minor)

R. Michael Moity, Jr.

The Moity Law Firm

340 Weeks St.

New Iberia, LA 70560

(337) 365-5529

COUNSEL FOR PLAINTIFFS/APPELLEES:
Brian Schmidt
Monic Porrier
George Keith Day obo C. D. Estate
Brian Schmidt obo T. S. Estate (minor)

David Brennan Stockstill

Attorney At Law

702 Loreauville Road

New Iberia, LA 70563-2022

(337) 367-1575

COUNSEL FOR PLAINTIFFS/APPELLEES:
Brian Schmidt
Brian Schmidt obo T. S. Estate (minor)
George Keith Day obo C. D. Estate
Monic Porrier

D’Ann R. Penner

Penner Law, LLC

109 E. Vermilion Street

Lafayette, LA 70502-3868

(337) 564-2217

COUNSEL FOR PLAINTIFFS/APPELLEES:
George Keith Day obo C. D. Estate
George Keith Day
George Keith Day obo B. D. (minor)

James B. Dill

Attorney at Law

3045 Ridgelake Drive #203

Metairie, LA 70002

(504) 838-8883

COUNSEL FOR PLAINTIFFS/APPELLEES:
George Keith Day
George Keith Day obo B. D. (minor)
Jody Day

Stephen M. Alexander

Attorney at Law

$550 United Plaza Blvd, Ste # 7

Baton Rouge, LA 70809

(225) 922-4488

COUNSEL FOR PLAINTIFFS/APPELLEES:
Reschelle Potier obo J. D. Estate (minor)
Rechelle Potier
Dustin Daigle obo J. D. Estate (minor)

Douglas Poole

Attorney at Law

802 25th Street

Galveston, TX 77550

(409) 762-1155

COUNSEL FOR DEFENDANTS/APPELLANTS:
Tyrone Clark
BNSF Railway Co.

Nathan L. Karlin

Pottroff & Karlin

320 Sunset Avenue

Manhattan, KS 66502-3757

(785) 539-4656

COUNSEL FOR PLAINTIFFS/APPELLEES:
Rechelle Potier
The Estate of Stephen Leblanc, Jr.
Stephen Leblanc, ITI
Jody Day
Dustin Daigle obo J. D. Estate (minor)
Brian Schmidt obo T. S. Estate (minor)
Monic Porrier
George Keith Day
Brian Schmidt
George Keith Day obo C. D. Estate
Monic Porrier obo T. S. Estate (minor)
Jody Day obo Phyllis Leblanc Estate
Dustin Daigle
George Keith Day obo B. D. (minor)
Reschelle Potier obo J. D. Estate (minor)
Jody Day obo B. D. (minor)

KYZAR, Judge.
BNSF Railway Company appeals the granting of Plaintiffs’ motion for

sanctions for spoliation in the form of a specific jury instruction that allows for the
presumption that missing evidence in a railroad crossing accident would be
detrimental to its case had it been produced. For the reasons below, we affirm the
ruling of the trial court allowing the jury instruction.

FACTS AND PROCEDURAL HISTORY

This is a railroad (RR) crossing accident case arising in Iberia Parish. Only
one automobile was involved in the accident when the driver of the car, Ms. LeBlanc,
drove onto a crossing, and the vehicle was struck by a BNSF Railway Company
“Amtrak” train. Four of the five occupants of the car were killed.

The accident was witnessed by law enforcement officer Jillian Lockhart
Landry, who testified that Ms. LeBlanc, when faced with properly operating RR
crossing warming lights and crossbars, inexplicably pulled to a stop on the tracks,
even though the train was clearly visible and sounding its horn. The accident was
also witnessed by the train engineer as well as captured on the train engine’s
forward-looking camera. Further, the data from two separate crossing signal
activation devices, known as Harmon Crossing Processors or HXPs, was
downloaded, one of which was responsible for the lights and gates at the crossing in
question. Two other available HXPs did not have their data downloaded or had the
data overwritten, which include the Remote Terminal Unit and the Harmon Crossing
Analyzer. Plaintiffs also allege that the HXP data was manipulated, and there was
conflicting testimony regarding the steps taken on the night of the accident and
whether or not all available data was timely downloaded.

The issue before the court is whether BNSF is subject to spoliation sanctions

for intentionally destroying and/or not preserving the evidence. After a hearing, the

trial court ruled for Plaintiffs and rendered judgment that an instruction be given to
the jury to allow the jury, if they so choose, to use the missing evidence as a negative
inference against BNSF that the evidence would have been favorable to Plaintiffs.
On appeal, BNSF asserts two assignments of error as follows:
1. The trial court committed legal error in issuing a spoliation sanction
absent proof and a finding of bad faith intent to spoliate, especially
where there is no evidence the alleged spoliated evidence would have
supported any viable claim against any defendants.
2. The trial court further committed legal error in allowing the question
of spoliation to be tried and determined by the jury, thereby allowing

Plaintiffs to transform their meritless grade crossing collision claims
into an unfairly prejudicial trial on spoliation.

DISCUSSION
The appellate standard of review for a trial court’s evidentiary ruling on the
issue of spoliation is whether the trial court abused its broad discretion.
BancorpSouth Bank v. Kleinpeter Trace, LLC, 13-1396 (La.App. 1 Cir. 10/1/14),
155 So.3d 614, writ denial, 14-2470 (La. 2/27/15), 159 So.3d 1067. The basis for
the rule of law that an appellate court must exercise great restraint before it reverses
a jury verdict because of erroneous jury instructions is that trial courts are given
broad discretion in formulating jury instructions, and trial court judgments wil! not
be reversed as long as said instructions correctly state the substance of the law.
La.Code Civ.P. art. 1792; see also Sayre v. PNK (Lake Charles), LLC, 15-859
(La.App. 3 Cir. 3/23/16), 188 So.3d 428, writ denied, 16-696 (La. 6/28/16), 192
So.3d 780.
Spoliation of the evidence is an evidentiary doctrine that refers
to an intentional destruction of evidence for the purpose of depriving
the opposing parties of its use in pending or anticipated litigation.
BancorpSouth Bank v. Kleinpeter Trace, L.L.C., 13-1396 (La.App. Ist
Cir.10/1/14), 155 So.3d 614; Clavier v. Our Lady of the Lake Hospital

Inc., 12-0560 (La.App. Ist Cir. 12/28/12), 112 So.3d 881, 885, writ
denied, 13-0264 (La.3/15/13), 109 So.3d 384...

A trial court has the authority to impose sanctions on a party for
spoliation of evidence and other discovery misconduct under both its
inherent power to manage its own affairs and the discovery articles
provided in the Louisiana Code of Civil Procedure. Under La. C.C.P.
art. 1471, when a party refuses or is unable to comply with a discovery
order, the trial court in a pending action “may make such orders in
regard to the failure as are just,” thereby granting the trial court broad
discretion to impose a range of sanctions. La. C.C.P. art. 1471(A); see
also Fed.R.Civ.P. 37. Even without a discovery order, La. C.C.P. art.
191 authorizes trial courts to impose sanctions for spoliation of the
evidence, since the destruction of evidence clearly interferes with the
court’s ability to fairly administer justice. Specifically, La. C.C.P. art.
191 provides that a trial court “possesses inherently all of the power
necessary for the exercise of its jurisdiction even though not granted
expressly by law.”

The range of possible sanctions include dismissing a case,
rendering a default judgment, striking pleadings, striking a claim or
defense, and excluding evidence. See La. C.C.P. art. 1471; Spoliation
of Evidence at 61 & n. 5. A determination as to what sanction is
appropriate in a particular case is a matter within the province of the
trial court, depending upon the facts present. As with other evidentiary
and discovery rulings, the trial court has much discretion in deciding
which sanction, if any, to impose. Cf Hutchinson v. Westport
Insurance Corporation, 04-1592 (La. 11/8/04), 886 So.2d 438, 440 (per
curiam); also see Adkins v. Wolever, 554 F.3d 650, 653 (6th Cir.2009).

Carter v. Hi Nabor Super Market, LLC, 13-529, pp. 6-9 (La.App. | Cir. 12/30/14),
168 So.3d 698, 703-05, writ denied, 15-190 (La. 4/17/15), 168 So.3d 399 (emphasis
in original).

“The duty to preserve evidence arises from the foreseeability of the need for
the evidence in the future.” /d. at 703. Once atrial court finds that a party had failed
to produce evidence within his control, one possible sanction the trial court may
impose is an instruction to the jury that it may infer that the evidence was detrimental
to that party. /d. Ifan adequate explanation is given for the party’s failure to produce
the evidence, however, the adverse presumption does not apply. /d. “Louisiana
jurisprudence holds that when a litigant destroys, conceals, or fails to produce

evidence within his or her control, it gives rise to an adverse presumption that had

the evidence been produced, it would have been detrimental to the litigant’s case.”

Allstate Ins. Co. v. Ford Motor Co., 00-710, p. 4 (La.App. 3 Cir. 11/2/00), 772 So.2d
339, 342.

The issue presented here is whether the trial court erred in imposing the
sanction of a jury charge for spoliation of evidence by BNSF for allegedly failing to
preserve the data from two HXPs, the Remote Terminal Unit (RTU) and the Harmon
Crossing Analyzer (HCA). It is not disputed that this evidence is missing. What is
disputed is whether or not the HCA was properly downloaded, the RTU was
downloaded or could be downloaded, and whether or not the HXP was timely
downloaded. Four BNSF employees testified regarding BNSF policies following an
accident and noted that there was a specific procedure to follow as outlined in BNSF
Post-Accident 7.1 Signal Instructions. Their testimony conflicted in regard to
whether or not all steps of the instructions were followed properly.

BNSF contends on appeal that the trial court made no finding that BNSF
intentionally failed to preserve the evidence or that it intentionally destroyed the
evidence and that, in fact, the trial court stated that BSNF’s explanation of what
transpired was “plausible,” thus negating a finding of intentionality in the
mishandling of the devices. A review of the trial court’s reasons for judgment,
stating its factual findings following a full hearing and including witnesses for the
railroad, shows otherwise. In written reasons for judgment, the trial court set forth
the following:

In the case at bar, Defendants, BNSF, had written protocol to
ensure that BNSF personnel at the scene of an accident worked together

to conduct investigations under the supervision of BNSF management.

The BNSF Post-Accident 7.1 Signal Instructions have very specific

requirements for conducting signal inspections following an accident

that involves injuries or fatalities at a grade crossing. BNSF had a duty

pursuant to its written policy, 7.1 Instructions, to download the data.

BNSF employees testified that there is a policy requiring the event data

recorders be downloaded. The event recorders and event recorder data

were in BNSF’s sole control and BNSF’s written policy imposed a duty
to download the event recorder data. During the post-incident phone

4

call, it was asked if all equipment was downloaded and the original log
was downloaded. This was confirmed at the 7.1 Conference where
these employees allegedly first learned the HCA data was not properly
downloaded.

The reasons BNSF has given for not downloading the data, while
plausible.[sic] are not evidence it was destroyed by accident. First,
there is eye-witness testimony about laptops being used on the night of
the accident. Chris Duffell testified that he saw Wiltz and Whitaker
had laptops in the bungalow. Second, allegedly, Whitaker thought
Wiltz downloaded the data, and he certified that it was downloaded
because he believed it to be true. Defendants acknowledge that all
relevant data was overwritten. BNSF employees testified that they saw
the system malfunction, as it does when the train is on crossing, but
were unaware it was overwriting data.

Therefore, based on the evidence presented and submitted, this
Court finds that based on the totality of the circumstances, it appears
that Defendants had a duty to download the data based on BNSF’s
written policy, 7.1 Instructions, and BNSF employees were in sole
possession and complete control of the data. The data was in BNSF’s
sole possession and control when it was overwritten or deleted,
therefore, the Court cannot find it was accidental. Every action or
inaction leading to the destruction of the data were those of BNSF
employees while the recorders were in their sole control in direct
violation of BNSF written instructions allowing data to be lost. Based
on the totality of the circumstances, this Court finds that a reasonable
trier of fact could find that BNSF employees were in bad faith. The
missing data regarding the railroad crossing signal system function is
relevant to a rail-road crossing claim. Consequently, this Court finds
that this action does not rise to a mandatory instruction but a non-
mandatory, permissive instruction can allow the jury to apply the
presumption to the evidence about facts that may be determinative of
fault.

“Where a litigant fails to produce evidence available to him and gives no
reasonable explanation, the presumption is that evidence would have been
unfavorable to his cause. The presumption is not applicable where the failure to
produce the evidence 1s explained.” Salone v. Jefferson Parish Dep't. of Water, 94-
212, p. 6 (La.App. 5 Cir. 10/12/94), 645 So.2d 747, 750 (quoting Boh Bros. Constr.
Co. Inc. v. Luber-Finer Inc., 612 So.2d 270, 274 (La.App. 4 Cir.1992)) (internal
citations omitted). Our supreme court has clearly stated that “Louisiana law does

not recognize a duty to preserve evidence in the context of negligent spoliation.”

Reynolds v. Bordelon, 14-2362, p. 14 (La. 6/30/15), 172 So.3d 589, 600. However,
in the instant case, the trial court specifically stated that it could not find the actions
of the BNSF employees to be “accidental”, thus, the actions had to be intentional
and not merely negligent. Further, the duty to preserve evidence arises from a
foreseeability of the need for said evidence in future litigation. Carter, 168 So.3d
698. Given the incident of a fatal accident, BNSF had ample notice of the potential
requirement of evidence for trial and had sole access to the RTU and HCA.

Plaintiffs rely upon the decision of this court in Sayre, 188 So.3d 428, for the
proposition that violation of a company policy combined with other evidence is
sufficient to allow for sanctions for spoliation of evidence. There the court stated:

The adverse presumption is a sanction for spoliation, but it also
stands on its own as a doctrine and an alternative remedy to restore
footing to the party who has unfairly borne the risk of missing evidence

and an erroneous judgment. Here, L’ Auberge had complete control of

the evidence and a policy in place to gather and maintain control of the

evidence, to the exclusion of all others, essentially creating a vault that

admits no light. Under such circumstances, it assumed the sole duty to
gather and preserve evidence. This duty combined with the duty
created by its knowledge of potential litigation, its breach of those
duties, and the duty under Article 2315 to repair the harm it has caused,
entitle Ms. Sayre to the adverse presumption that the missing evidence
would have been unfavorable to L’ Auberge.

Id. at 444.

We do not read the opinion in Sayre to be an expansion of the intentionality
requirement for spoliation to include mere negligence, but an acknowledgment that
in light of a permeating policy, the decision to specifically not follow all or a part
thereof can under the particular circumstances of a given case be an intentional act
for the very purpose of destroying potentially relevant evidence. That is the case
here as determined by the trial court, which made factual findings after a full hearing

on the matter. A trial court’s reasonable evaluations of credibility and reasonable

inferences of fact are not to be disturbed by an appellate court even though it may

fee] its own evaluations and inferences are more reasonable than those of the trial
court. Greenblatt v. Sewerage & Water Bd. of New Orleans, 19-694 (La.App. 4 Cir.
12/20/19), 287 So.3d 763. Once a trial court finds that a party has failed to produce
evidence within his control, the trial court may impose a sanction in the form of an
instruction to the jury that it may infer that the evidence was detrimental to that party.
BancorpSouth Bank, 155 So.3d 614. “Under the federal and state rules of civil
procedure that regulate discovery procedures, courts have broad discretion to impose
a variety of sanctions against a party that fails to produce evidence in violation of
the discovery rules.” Carter, 168 So.3d at 704 (quoting Margaret M. Koesel &
Tracey L. Turnbull, Spoliation of Evidence 61 (Danial F. Gourash ed., 3d ed.2013)).
Even when the presumption applies, it is not necessarily fatal, but is one factor to
weigh in adjudicating the case. Salone, 645 So.2d 747.

Here, there was conflicting evidence regarding the data potentially available
from the RTU and the HCA and the appropriateness of BNSF’s actions in gathering
said data. Where two permissible views of the evidence exist, the fact finder’s
choice between them cannot be manifestly erroneous or clearly wrong, even if the
reviewing court would have decided the case differently. Greenblatt, 287 So.3d 763.
We, thus, cannot find that the trial court abused its broad discretion by granting the
motion and ordering a permissive, not mandatory, instruction as to spoliation.

DECREE

For the reasons assigned, we affirm the decision of the trial court ordering the
permissible negative presumption jury instruction of spoliation, and remand to the
trial court for further proceedings. Costs of this appeal are assessed to
Defendants/Appellants, BNSF Railway Company.

AFFIRMED AND REMANDED.