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Ashbee v. Burlington Northern Santa Fe Railway Company11/20/2003
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
In this action under the Federal Employers' Liability Act (FELA), the jury awarded plaintiff Gary G. Ashbee over $1.8 million in damages for a job -related injury he sustained while working for defendant Burlington Northern Santa Fe Railway Company (Burlington Northern).
On appeal, Burlington Northern contends: (1) the trial court committed prejudicial error in instructing the jury Ashbee was not covered by California's workers' compensation law; (2) the trial court abused its discretion in allowing two of Ashbee's experts to express at trial opinions they did not express at their depositions, while precluding a witness for Burlington Northern from doing the same; and (3) the trial court erred in denying Burlington Northern's motion for a new trial based on jury misconduct. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Ashbee injured his neck and back in June 2000 while working for Burlington Northern when he tried to throw a switch that had a spike in it.
In May 2001, Ashbee brought this action for damages against Burlington Northern under the FELA.
The case was tried to a jury in June 2002. The jury returned a special verdict finding Burlington Northern negligently caused Ashbee's injury and awarded Ashbee $921,000 in economic damages and $905,000 in non-economic damages.
Burlington Northern moved for a new trial, asserting, among other arguments, the same arguments it pursues in this appeal. The trial court denied the motion, and Burlington Northern filed this timely appeal.
As necessary, other relevant facts are included in the discussion that follows.
DISCUSSION
I. Workers' Compensation Instruction
Before trial, over Burlington Northern's objection, Ashbee requested that the court "preinstruct" the jury "that he is not covered by the Workers' Compensation Act of California but by the [FELA], that he receives no benefits under state law, and that his sole remedy for the work-related injuries he has suffered in this action, is under the FELA." (Fn. omitted.) Although the record does not include any pre-instructions given to the jurors, it does appear the court granted Ashbee's motion, albeit by giving a more limited instruction than Ashbee requested. In any event, it is undisputed that at the end of the trial the jurors were instructed on the issue as follows: "Plaintiff has brought suit against BURLINGTON NORTHERN SANTA FE RAILWAY COMPANY for personal injuries. In this case, the rights and duties of the parties are exclusively governed by federal laws known as the Federal Employers' Liability Act, not the State of California Worker 's Compensation laws."
Burlington Northern contends the trial court committed prejudicial error by giving this instruction. On the showing before us, we disagree.
In Lund v. San Joaquin Valley R.R. (2003) 31 Cal.4th 1, decided a year after the trial in this matter, our Supreme Court held that "in a FELA action brought in state court the jury, as a general rule, should not be told of the injured employee's ineligibility for benefits flowing from California's workers' compensation law or any other collateral source." (Id. at p. 11.) The court identified two reasons for this general rule. First, the court concluded that "if jurors are told that the injured employee is ineligible f
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