United States District Court, D. Nebraska
DANA L. SIEMERS, Plaintiff,
BNSF RAILWAY COMPANY, Defendant.
MEMORANDUM AND ORDER
M. Gerrard Chief United States District Judge
matter is before the Court on the parties' motions in
limine (filing 118; filing 121, filing 126), BNSF's
motion for a jury site visit (filing 120), BNSF's motion
to exclude Siemers' untimely disclosed brake stick
liability theory (filing 123), and Siemers' motion for
leave to amend the final pretrial order (filing 153). The
Court heard arguments on these motions during a May 13, 2019
hearing. For the reasons explained below, the parties'
motions will be granted in part, and denied in part.
Siemers' Motions in Limine
requests an order precluding BNSF, its counsel, and its
witnesses from directly or indirectly presenting or arguing
eight general categories of information. Some of those
requests will be granted, as explained more below, but others
will be denied without prejudice to reassertion at trial.
Collateral Source Benefits
Siemers seeks to exclude any reference to payments he
received from a collateral source. Filing 118 at 1.
Ordinarily payments received from collateral sources are not
allowed into evidence. Hannah v. Haskins, 612 F.2d
373, 375 (8th Cir. 1980). But the Eighth Circuit has also
determined that when the plaintiff makes a specific reference
to collateral source payments on direct examination, the
scope of permissible inquiry is set by the direct
examination, and the usual rules on cross-examination apply.
Lange v. Missouri Pac. R. Co., 703 F.2d 322, 324
(8th Cir. 1983). And under the rules of cross-examination, it
is plausible that the collateral source payments might be
relevant, based on the plaintiff's testimony on direct
examination, to the plaintiff's credibility. Id.
So, initially BNSF will not be allowed to introduce evidence
of collateral source payments, see Haskins, 612 F.3d
at 375, and Siemers' motion will be granted on those
grounds. However, if Siemers opens the door to those
benefits, then they might be relevant for purposes of
cross-examination. Accordingly, the Court will grant
Siemers' motion on this issue with the above caveat.
General Statements About the Safety of BNSF
moves to exclude any comment regarding the general safety of
employees at BNSF or testimony that BNSF is a reasonably safe
place to work. Filing 118 at 1. According to Siemers, that
evidence is irrelevant to his specific allegations of
negligence. It all depends on context. Whether BNSF is
reasonably safe may certainly be relevant to Siemers'
allegations that BNSF failed to provide him with "a
reasonably safe place to work . . . reasonably safe
conditions for work . . .[and] reasonably safe methods and
procedures for work." Filing 1 at 3; seeFed. R.
Evid. 401. Depending on the tendered evidence, the Court will
determine whether the probative value of such evidence is
outweighed by its prejudicial effect. Fed.R.Evid. 403. So,
this part of Siemers' motion will be denied without
prejudice to reassertion at trial.
Improper or Inconsistent Training at BNSF
Siemers moves to exclude two categories of separate but
related evidence: (1) testimony that Siemers' allegations
against BNSF are actually "personal attacks" on
BNSF and the employees who trained him, and (2) comments or
arguments that Siemers was injured because of improper or
inconsistent training by his labor union. Filing 118 at 1-2.
The relevance of this testimony, if any, will depend on the
evidence adduced at trial. So, Siemers' motion on these
grounds will be denied without prejudice to reassertion.
Filing 118 at 1.
Preexisting Medical Conditions
also seeks to exclude any evidence of his previous medical
conditions, accidents, and work-related injury claims. Filing
118 at 2. As the Court explained in the May 13 hearing, it is
possible that some of Siemers' prior injuries
may be relevant to the nature and extent of the instant
injury and a determination of causation (i.e.,
aggravation of a prior injury/condition). For example, if the
medical evidence presented at trial supports a finding that
other accidents or incidents contributed to Siemers'
current back condition-- evidence of those accidents or
injuries would be admissible at trial. See
Neigum v. BNSF Ry. Co., No. 1:06-CV-026, 2008 WL
1049905, at *4 (D.N.D. Apr. 8, 2008).
are other types of evidence, however, that are not relevant
to the incident at issue here, and BNSF will not be permitted
to introduce such evidence. For instance, evidence that
Siemers suffered an earlier shoulder injury, filed prior
workers' compensation claims, or received a $10, 000
settlement after a motor vehicle accident, are irrelevant to
the issue in this trial. Filing 118 at 2.
as to this issue, the Court will grant Siemers' motion in
part and deny it in part as set forth above.
Timothy Burd's Medical Malpractice Actions.
moves to exclude the portions of Dr. Burd's video
deposition concerning two malpractice suits filed against
him. Filing 119 at 13. BNSF, on the other hand, argues that
the evidence is relevant for purposes of determining Dr.
Burd's credibility and qualifications. Filing 147 at 13.
As the Court explained during the May 13 hearing, for the
malpractice claims to be admissible they must involve
allegations related to a spinal injury or the misdiagnosis of
the same or similar spinal injury. Because the two
malpractice claims Siemers' seeks to exclude involve
allegations relating to a knee arthroscopy and a suspected
bone infection, the Court finds those claims are not relevant
to the injury at issue here. See filing 119 at
10-11. And, if there would be some minimal probative
value--it is substantially outweighed by unfair prejudice.
Fed.R.Evid. 403. So, the Court will grant Siemers' motion
on those grounds.
Siemers' Bankruptcy Filings
seeks to exclude evidence that Siemers has filed for
bankruptcy on three separate occasions. Filing 119 at 13.
BNSF argues that Siemers' bankruptcy is relevant to
"Siemers' credibility--specifically, his motivation
for financial gain and motivation in filing this
lawsuit." Filing 147 at 13. Whether or not it is
relevant, this evidence is unfairly prejudicial, and that
unfair prejudice substantially outweighs whatever probative
value the evidence may have. The Court will grant
Siemers' motion as to this evidence under Fed.R.Evid.
Siemers' 2011 DUI
moves to exclude evidence that he pled guilty to a DUI in
2011. Filing 147 at 14. BNSF does not object to the exclusion
of this evidence, and Siemers' motion will be granted on
BNSF's Contributory Negligence Defense
next argument is premature. Specifically, Siemers asks the
Court to refrain from giving the jury a contributory
negligence instruction. Filing 148 at 3-4. But whether that
instruction is warranted is a matter that the Court will take
up after all of the evidence has been adduced, and the issue
is discussed at the jury instruction conference. See
Wilson v. Burlington N., Inc., 670 F.2d 780, 782 (8th
Cir.), cert. ...