On Feb. 26, 2009, plaintiff Russell Oliver, a switchman for the BNSF Railway Co., was in BNSF’s Mormon Yard, in Stockton, when he allegedly stepped on displaced ballast, which is usually made of crushed stone and/or other materials. As a result, Oliver’s right ankle inverted and he claimed to his right ankle. Oliver sued BNSF Railway Co., alleging that BNSF was negligent under the Federal Employers Liability Act and California Public Utilities Commission General Order 118, which requires reasonably regular walkways to be in railroad yards. Plaintiff’s counsel contended that on July 19, 2008, a BNSF employee submitted a complaint through BNSF’s Safety Issue Resolution Process about large ballast that created a footing hazard in the Mormon Yard. Counsel contended that for seven months, BNSF did nothing to address the issue until early February 2009, when BNSF decided to retain the services of a local excavating company to remove all the large mainline ballast along the offending tracks. Plaintiff’s counsel maintained that the work crews left the new yard ballast so high on top of the tracks that yard crews found it difficult to lace the air on railcars left in those tracks. Counsel contended that as a result, BNSF brought in a ballast regulator, but that the ballast regulator displaced the loose ballast from the tracks into the walkway area adjacent to the tracks. Thus, plaintiff’s counsel contended that subject ballast was left ridged, loose, and composed of mixed sizes. Plaintiff’s counsel noted that the deposition testimony of two managers established that BNSF violated its own engineering standards, which require that yard ballast be compacted with a rubber tire or vibratory device, such that the ballast does not move. However, counsel claimed that at trial, rather than admitting to their prior testimony, the two managers tried to distance themselves from their own words. Defense counsel presented evidence, including photographs, showing that the area in which Oliver alleged he sustained injury was reasonably safe and in compliance with California Public Utilities Commission General Order 118. Counsel also contended that ballast, which is basically rock, must be used in rail yards and that its use is consistent with industry standards. Thus, defense counsel argued that the ballast in the Mormon Yard was in compliance with PUC requirements, BNSF requirements, and federal requirements. Counsel also contended that the ballast in the Mormon Yard in the area where Oliver allegedly became injured had been present since the yard was constructed, approximately 100 years ago and that Oliver had worked in this area of the Mormon Yard for many years without incident. Defense counsel maintained that BNSF attempted, in the month prior to Oliver’s incident, to replace some of the existing ballast in the area with smaller ballast to address an employee’s complaint. However, it was not possible to replace all of the ballast without reconstructing the entire yard. Thus, following the replacement of some of the ballast, a small ridge of ballast remained along a portion of the track. However, defense counsel noted that after being shown a photograph of the ridge, Oliver denied stepping on the ridge. Instead, Oliver testified that he stepped on “displaced” ballast. Defense counsel noted that the plaintiff’s main liability expert was held in contempt of court following the trial for intentionally violating a motion in limine to preclude any mention of the fact that Oliver would not receive workers’ compensation benefits., Oliver claimed he tore ligaments in his right ankle, causing a weakening of the ligaments. He subsequently underwent surgery to repair the anterior talofibular and calcaneofibular ligaments. Oliver returned to his regular position after 14 months of post-surgical therapy. However, 2.5 years later, his ankle deteriorated to the point where he needed additional surgery to stabilize the ankle. Defense counsel argued that Oliver’s ex-wife testified that Oliver had injured his right ankle approximately four to five days before the alleged incident, but returned to work before his ankle had healed.