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Vasquez v. Union Pacific Railroad Co.

United States District Court, D. Nebraska

June 7, 2018

SEAN B. VASQUEZ, Plaintiff,
UNION PACIFIC RAILROAD COMPANY, a Delaware corporation; Defendant.


          Joseph F. Bataillon Senior United States District Judge

         This matter is before the court on the parties' motions in limine, Filing Nos. 92, 94, and 106 and on the plaintiff's motion to strike defendant Union Pacific Railroad Co.'s (“the Railroad's”) third supplemental expert witness disclosures, Filing No. 103. This is an action to recover damages under the Federal Employers' Liability Act (“FELA”), 45 U.S.C. § 51. The matter is set for trial on August 6, 2018. The Railroad has admitted liability and the issue for resolution is the nature and extent of the plaintiff's damages.

         Although the motion in limine is an important tool available to the trial judge to ensure the expeditious and evenhanded management of the trial proceedings, performing a gatekeeping function and sharpening the focus for later trial proceedings, some evidentiary submissions cannot be evaluated accurately or sufficiently by the trial judge in such a procedural environment. Jonasson v. Lutheran Child and Family Servs., 115 F.3d 436, 440 (7th Cir. 1997). A motion in limine is appropriate for “evidentiary submissions that clearly ought not be presented to the jury because they clearly would be inadmissible for any purpose.”Id. In other instances, it is necessary to defer ruling until during trial, when the trial judge can better estimate the impact of the evidence on the jury. Id. The Eighth Circuit has noted that “[e]videntiary rulings made by a trial court during motions in limine are preliminary and may change depending on what actually happens at trial.” Walzer v. St. Joseph State Hosp., 231 F.3d 1108, 1113 (8th Cir. 2000).

         To the extent that a party challenges the probative value of the evidence, an attack upon the probative sufficiency of evidence relates not to admissibility but to the weight of the evidence and is a matter for the trier of fact to resolve. United States v. Beasley, 102 F.3d 1440, 1451 (8th Cir. 1996). With those principles in mind, the court finds as follows:

         I. Defendant's Motions in Limine (Filing Nos. 92 and 106)

         Motions in Limine Nos. 1 & 2: The Railroad seeks to preclude any reference to this as a “compensation” case and any reference that plaintiff is not eligible to recover workers' compensation benefits or retirement benefits.

         The Railroad contends that a FELA plaintiff is not entitled to workers' compensation and mentioning it to the jury would be misleading, irrelevant, and confusing to the actual issues in this case because under the FELA, a plaintiff is only entitled to recover for negligence by proving duty, breach of duty, causation and damages, whereas workers' compensation, on the other hand, is a strict liability scheme where a plaintiff is automatically entitled to recover if the plaintiff is injured in the course and scope of employment. The court is inclined to agree that workers' compensation should not be referred to at the trial. The plaintiff's eligibility for workmen's compensation or ability to file claims under alternative theories of recovery is irrelevant to the factual issues in dispute for the jury. See Stillman v. Norfolk & W. Ry. Co., 811 F.2d 834, 838 (4th Cir. 1987); Toth v. Grand Trunk R.R., 306 F.3d 335, 353-55 (6th Cir. 2002). Advising the jury about whether or not the plaintiff is entitled to receive workers' compensation benefits is likely to confuse the jury. Such information would likely be used improperly by the jury and would cause the defendant undue prejudice. Accordingly, the court finds the defendant's motion in limine should be granted.

         Motion in Limine No. 3: The Railroad seeks to preclude any request that the jury award plaintiff's gross wage loss, since plaintiff's net wage loss is the only appropriate measure of damages in a FELA case, and any reference to federal income tax on an award in a FELA case. In response, the plaintiff states he will make claim for past net wage loss and future wage loss, each calculated net of tax, and the future award discounted to present value. The plaintiff agrees to an instruction to federal income tax consequences, if requested by the Railroad. It thus appears the motion is moot.

         Motion in Limine No. 4: The Railroad seeks to preclude any reference or argument regarding the congressional intent or purpose of the FELA. The plaintiff confesses this motion and it will be granted.

         Motion in Limine No. 5: The Railroad seeks to preclude any reference comparing the financial disparity between the parties, that Union Pacific is “the largest railroad company in North America, ” or punitive or exemplary damages and suggesting that a message should be sent to Union Pacific. The plaintiff confesses this motion and it will be granted.

         Motion in Limine No. 6: The Railroad seeks to preclude any reference to Union Pacific documents or materials that were not produced to counsel for defendant in this case, specifically, the use of Railroad documents from other cases. The plaintiff states it will only use such documents for impeachment.

         The court is not inclined to admit documents not produced in connection with this litigation. Depending on the circumstances, the evidence could be relevant in rebuttal. Without seeing the evidence, the court is unable to determine the admissibility of any such documents. The court will sustain the Railroad's motion at this time, without prejudice to reassertion outside the presence of the jury at trial.

         Motion in Limine No. 7: The Railroad seeks to preclude any reference to Federal Railroad Administration (“FRA”) accident reports or statistics. It challenges plaintiff's Exhibit (“Ex.”) 60 in particular. Exhibit 60 is a compilation by the FRA of a number of train accidents that have occurred all over the United States. The Railroad contends the probative value of the evidence is outweighed by prejudice because there is not showing of similarity in incidents. Further, it argues FRA action reports are privileged and federal law prohibits them from being used for any purpose in litigation, citing 49 U.S.C. § 20903; 49 CFR 225.7. It contends the FRA has such a prohibition because it encourages railroads to file reports. The Railroad also challenges the plaintiff's use of statistics as misleading, contending that the showing of 1, 814 train accidents can be reduced to four, including this case, when limited to rear-end collisions with human factor involvement similar to the facts of this case. In response, the plaintiff argues that the compilation report is not privileged and excludable under federal law because this action is not a matter mentioned in the report since it occurred outside the time-parameters of the report. He also argues that the information is relevant to Dr. Terry Davis's testimony on the issue of the plaintiff's fear of returning to work because of another potential collision.

         Setting aside the privilege issue, the court is inclined to find that such broad evidence is inadmissible under Federal Rule of Evidence 403. Potential prejudice outweighs probative value in light of the dissimilarity of the incidents to the accident at issue. The court is unable to evaluate the relevance of the challenged evidence in the context of this motion. The court will admit the evidence at issue only on a showing that it is relevant to the issues in the case, and only to the extent that the relevance of the evidence outweighs its potential to cause prejudice or confusion under Rule 403. Such evidence can be admitted, if at all, only on a strong showing of similarity to the incident at issue and generally only with a limiting instruction, the ambit of which the court cannot determine at this time. The court finds the motion can be adequately resolved at trial, either in a hearing immediately prior to commencement of the trial, as an objection with a sidebar, or ...

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