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Bliss v. BNSF Railway Co.

United States District Court, D. Nebraska

May 15, 2014

DAVID BLISS, Plaintiff,
v.
BNSF RAILWAY COMPANY, Defendant.

MEMORANDUM AND ORDER

CHERYL R. ZWART, Magistrate Judge.

On the parties' respective Motions in Limine, (Filing Nos. 183 & 186),

IT IS ORDERED that the motions are granted in part and denied in part as follows:

Defendant's Motions in Limine

1. Any reference to or evidence regarding Plaintiff's claim of "negligent assignment."

Sustained. Plaintiff testified that he was not negligently assigned to the work he being performed when the injury occurred, and never specifically raised this allegation in his pleadings or the Rule 26(f) Report. See Filing No. 188-2 at CM/ECF p. 72.

2. Reference to the size or financial condition of BNSF or the term "railroaded" or other similar terms.

Sustained by agreement. (Filing No. 194, at CM/ECF p. 2, ¶ 2).

3. Any reference to or evidence regarding Berkshire Hathaway and Warren Buffet.

Sustained by agreement. (Filing No. 194, at CM/ECF p. 2, ¶ 3).

4. Any reference to or evidence regarding the stressed or otherwise dire financial condition of plaintiff or his family following the claimed work injury.

Sustained, except to the extent the Plaintiff claims this evidence supports his claim for compensatory damages (e.g., emotional distress damages arising from the accident), which may, in turn, open the door to discussing benefit payments received by the Plaintiff.

5. Any reference to the difference in status, size and strength of the plaintiff as an individual and BNSF as a corporation.

Sustained by agreement. (Filing No. 194, at CM/ECF p. 2, ¶ 5).

6. Any statement asking the jurors to place themselves in the position of plaintiff and imagine his pain or emotions.

Sustained.

7. Any reference to the history, congressional intent and alleged remedial purposes of the Federal Employers' Liability Act ("FELA").

Sustained. The court will instruct the jury regarding the applicable law.

8. Any statement or argument embellishing or inaccurately summarizing plaintiff's medical history.

Sustained by agreement. (Filing No. 194, at CM/ECF p. 2, ¶ 8).

9. Any reference to or evidence regarding medical expenses paid by insurance provided to plaintiff by defendant pursuant to labor agreements between the carrier and plaintiff's union.

Sustained.

10. Any reference to or evidence regarding plaintiff's reputation for safety on the job or reputation as to character.

If necessary, the court's rulings on this topic will be made during trial and in accordance with the Federal Rules of Evidence. See F. R. Evid. Rule 404(a)(1) & 608.

11. Any statement as to what any physician, psychologist, psychiatrist or any other person practicing the healing arts, allegedly told plaintiff or plaintiff's witnesses as to the extent and nature of his examination, his alleged findings, disability or physical impairment, diagnosis or prognosis.

Overruled. But this information will not be mentioned during voir dire or opening statements.

12. Any reference to or evidence in the nature of "expert" testimony or opinions of any expert previously disclosed by plaintiff including those health care providers identified as non-retained experts, as well as Terry Cordray, Dr. Malcolm Cohen, and Dr. Daniel Ripa beyond those specific opinions disclosed in Plaintiff's Disclosures under Rule 26(a)(2), Plaintiff's Amended Expert Disclosures, all medical records produced by plaintiff to BNSF, Plaintiff's Answers to Defendant's Interrogatories, any supplements served thereto including any supplemental written reports provided to counsel for BNSF, and all discovery depositions of said experts taken by counsel for defendant BNSF after said expert disclosures.

Sustained.

13. Any testimony from Dr. Thomas Brooks regarding "his opinion on causation, Plaintiff's ability to return to work, or any work restrictions required by the plaintiff."

Sustained pursuant to this court's Memorandum and Order dated September 10, 2013, (Filing No. 151). See also Filing No. 194, at CM/ECF p. 3, ¶ 11).

14. Strike the following trial testimony of Michael H. McGuire, M.D., taken on June 18, 2013:

a. Testimony offering the opinion that plaintiff cannot return to work in his previous position as a carman because of his injuries.

b. Testimony offering the opinion that plaintiff's February 3, 2011 work injury was the cause in whole or in part to his claimed spine injury and subsequent medical treatment.

Overruled as to both. Dr. McGuire opined that Plaintiff's combination of physical problems made it "particularly painful for him to do heavy labor" such as "jacking apart railroad cars to repair them." See Filing No. 188-4 at CM/ECF p. 29-30. Further, sufficient foundation was provided to support Dr. McGuire's opinion that the February 3, 2011 injury caused the spine ...


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