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Logsdon v. BNSF Railway Co.

United States District Court, D. Nebraska

August 25, 2017

STEVEN C. LOGSDON, Plaintiff,
v.
BNSF RAILWAY COMPANY, Defendant.

          ORDER

          John M. Gerrard United States District Judge

         This matter is before the Court on the parties' motions in limine, and the railroad's motion to limit testimony of the plaintiff's non-retained expert witnesses. Filing 105; filing 172; filing 175; filing 184; filing 191. The Court heard arguments on these motions during an August 21, 2017 hearing. For the reasons explained below, the parties' motions will be granted in part, and denied in part.

         1. BNSF's Motion in Limine: Filing 172

         BNSF requests an order precluding Logsdon, his counsel, and his witnesses from directly or indirectly presenting or arguing 35[1] separate categories of information. Logsdon does not object to several of these categories. Others remain in dispute.

         The parties agree, and the Court now orders, that Logsdon shall not present the following at trial:

• Any reference to or evidence regarding Berkshire Hathaway or Warren Buffett. The Court will, however, ask the jury about possible business relationships with BNSF during voir dire.
• Any reference to or evidence as to the difference in status, size, or strength of Logsdon as an individual and BNSF as a corporation. Filing 189 at 4.
• Any statement asking the jurors to place themselves in Logsdon's position or to imagine his pain or emotions. Filing 189 at 4.
• Any references to inflation or the effect of inflation upon any award of damages in a FELA case. Filing 172 at 4.
• Any reference to the history, congressional intent, or purposes of the Federal Employers' Liability Act or to the remedial purpose of the law. Filing 189 at 5.
• Any reference to this as a "compensation" case. Filing 189 at 9.
• That the damage award in a FELA case is subject to federal income tax. Filing 189 at 9.
• Claims or argument seeking prejudgment interest, as such interest in not recoverable in a FELA claim. Filing 189 at 9.
• Any reference to, or argument, evidence, or testimony that Logsdon has or may have sustained or developed Reflex Sympathetic Dystrophy or Complex Regional Pain Syndrome as a result of the incident with the coal and slip paper alleged in his FELA claim. Filing 189 at 23.
• Any reference to, or argument, or statement, regarding Robert Long, a former carman and union representative in Alliance. Filing 189 at 23.
• References from either party to any settlement discussions, documents, and statements made therein. Filing 189 at 24-25.

         BNSF's motion to exclude reference, evidence, or argument on these points is granted.

         BNSF's motion regarding the following information and evidence will be denied without prejudice to reassertion at trial. Indeed, while the parties do not generally dispute these points, and the Court would likely sustain objections on these points, Logsdon argues that they are either overly vague, or may become relevant depending on the evidence adduced at trial.

• Any reference to, evidence, or arguments regarding the size or financial condition of BNSF. Filing 189 at 2.
• Any reference to, evidence, or arguments intended to inflame or arouse feelings of hostility or resentment toward BNSF, including, but not limited to, e.g., plaintiff or anyone else being "railroaded" or reference to the term or like terms. Filing 189 at 2.
• Any statement or argument embellishing or inaccurately summarizing Logsdon's medical history. Filing 189 at 5.
• Any reference to or evidence regarding Logsdon's reputation for safety on the job or reputation as to character. Filing 189 at 5.
• Any reference to or evidence in the nature of "expert" testimony or opinions beyond those specifically disclosed during discovery. Filing 189 at 6.
• Any reference to or evidence regarding any other claims, accidents, incidents, or lawsuits involving defendant BNSF, or any testimony regarding such claims, accidents, incidents, or lawsuits, without the Court first ruling on the relevance, materiality, and admissibility of such matters outside the presence of the jury.
• Any statement by counsel, Logsdon, or any of his witnesses expressing a personal opinion concerning the bona fides or credibility of BNSF's defenses or witnesses or any statement personally vouching for the credibility of plaintiff or his witnesses. Filing 189 at 15.
• Any reference regarding any implication that BNSF or its attorneys have not fully complied with or otherwise properly and fully responded to discovery.
• Testimony of witnesses not previously identified as persons with knowledge of relevant facts and any request of BNSF to stipulate to any facts or matters in front of the jury. Filing 189 at 23-24.
• Questions directed to BNSF counsel in front of the jury. Filing 189 at 24.
• Demands or requests before the jury for matters found or contained in BNSF's file for this action or any other request during the course of the trial and in the presence of the jury.
• Any testimony given over objections in depositions without a ruling thereon by the Court being previously made.
• Any references relating to the attorney client privilege, work product privilege, or privileged communications. Filing 189 at 25.
• Any statement as to what any physician, physical therapist, chiropractor, psychologist, psychiatrists, or any other person practicing the healing arts allegedly told plaintiff or plaintiffs witnesses as to the extent or nature of his or her examinations, alleged ...

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