NOT FOR PUBLICATION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. 2 2

- 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 DESA I, C ircuit Judges, and SILVER, * * District Judge. James Norvell appeals from the entry of judgment in favor of BNSF Railway Co mpany 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 APPEALS2

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. Y eti by Molly, Ltd. v. Deckers Outdoor Corp. , 259 F.3d 1101, 1106 (9th Cir. 2001)

. Norvell objected to a portion of J ury I nstruction 13. That instruction provided, in relevant part , It is unlawful to terminate an employee for perfo rming 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 potenti ally 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,

I nstruction 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 wh ether they are accurate. ”). Instead,

I nstruction 13 correctly stated that Washington law allow s 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 recognize d that an employer may terminate an employee for misconduct even if a closely connected event3

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

emp loyee 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 prohib its an employer from terminating an employee because
of misconduct merely because th at misconduct preceded the employee’s action s
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
report s . According to Norvell, Heikkila was allowed to testify about the train’s “black box data” despite Heikki la’s expert report s not disclosing any opinions regarding th at 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 discl ose 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 event s reflected in the “ black box data ” and recounted by Heik kila w ere , in large part, undisputed. Thus, any nondisclosure

was harmless, and the district court did not abuse its discretion in declining to4

exclude Heikkila’s opinions. See i d. (noting that district courts have “particularly wide latitude” when determining whether to impose discovery sanctions).
AFFIRMED.