NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMES NORVELL, 

Plaintiff-Appellant, 

 v. 

BNSF RAILWAY COMPANY, a Delaware 

corporation,

Defendant-Appellee.

No. 22-35373

D.C. No. 3:17-cv-05683-BHS

MEMORANDUM*

Appeal from the United States District Court

for the Western District of Washington

Benjamin H. Settle, District Judge, Presiding

Argued and Submitted April 14, 2023

Seattle, Washington

Before: McKEOWN and DESAI, Circuit Judges, and SILVER,** District Judge.

James Norvell appeals from the entry of judgment in favor of BNSF 

Railway Company after a jury trial. We have jurisdiction pursuant to 28 U.S.C. 

§ 1291 and we affirm.

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Roslyn O. Silver, United States District Judge for the 

District of Arizona, sitting by designation.

FILED

MAY 8 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

We “review de novo whether [jury] instructions accurately state the law.” 

Skidmore as Tr. for Randy Craig Wolfe Tr. v. Led Zeppelin, 952 F.3d 1051, 1065 

(9th Cir. 2020) (en banc). We review the district court’s decision to not impose 

discovery sanctions for abuse of discretion. Yeti by Molly, Ltd. v. Deckers Outdoor 

Corp., 259 F.3d 1101, 1106 (9th Cir. 2001).

Norvell objected to a portion of Jury Instruction 13. That instruction 

provided, in relevant part,

It is unlawful to terminate an employee for performing a public duty. 

There is a public policy and duty in favor of taking swift action to 

save human life regardless of whether such action violates a company 

rule. A company may take into consideration whether an 

individual’s actions created the potentially harmful situation 

when determining appropriate action.

Norvell argues the bolded sentence was a misstatement of Washington law that 

created an improper defense and misallocated the burden of proof. However, 

Instruction 13, read as a whole, neither created an improper defense nor shifted the 

burden of proof. See Hawthorne Sav. F.S.B. v. Reliance Ins. Co. of Ill., 421 F.3d 

835, 858 (9th Cir. 2005), amended, 433 F.3d 1089 (9th Cir. 2006) (“[W]e read jury 

instructions as a whole to determine whether they are accurate.”). Instead, 

Instruction 13 correctly stated that Washington law allows an employer to consider

an employee’s misconduct leading up to the need for emergency action. In a 

related context, the Washington Supreme Court has recognized that an employer 

may terminate an employee for misconduct even if a closely connected event 
3 

would not be a valid basis for termination. Wilmot v. Kaiser Aluminum & Chem. 

Corp., 821 P.2d 18, 32 (Wash. 1991) (noting that an employer could terminate an 

employee for failing “to observe health and safety standards” but could not 

terminate the employee for seeking workers’ compensation benefits based on an 

injury stemming from misconduct). Norvell has cited no authority establishing

that Washington law prohibits an employer from terminating an employee because 

of misconduct merely because that misconduct preceded the employee’s actions 

that would not be a permissible basis for termination. 

Norvell also argues the district court erred in allowing BNSF’s expert, Brian 

Heikkila, to offer opinions allegedly beyond what was disclosed in his expert 

reports. According to Norvell, Heikkila was allowed to testify about the train’s 

“black box data” despite Heikkila’s expert reports not disclosing any opinions 

regarding that data. Norvell did not depose Heikkila to identify what he might say 

at trial. Even if Heikkila’s opinions were not disclosed, his testimony was still 

properly admitted if the failure to disclose was “substantially justified or 

harmless.” Yeti by Molly, Ltd., 259 F.3d at 1106. 

Heikkila’s allegedly undisclosed opinions were similar to testimony from 

other witnesses. Moreover, the events reflected in the “black box data” and 

recounted by Heikkila were, in large part, undisputed. Thus, any nondisclosure 

was harmless, and the district court did not abuse its discretion in declining to 
4 

exclude Heikkila’s opinions. See id. (noting that district courts have “particularly 

wide latitude” when determining whether to impose discovery sanctions).

AFFIRMED.