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Siemers v. BNSF Railway Co.

United States District Court, D. Nebraska

May 15, 2019

DANA L. SIEMERS, Plaintiff,
v.
BNSF RAILWAY COMPANY, Defendant.

          MEMORANDUM AND ORDER

          John M. Gerrard Chief United States District Judge

         This 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.

         1. Siemers' Motions in Limine

         Siemers 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.

         (a) Collateral Source Benefits

         First, 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.

         (b) General Statements About the Safety of BNSF

         Siemers 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.

         (c) Improper or Inconsistent Training at BNSF

         Next, 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.

         (d) Preexisting Medical Conditions

         Siemers 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).

         There 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.

         Accordingly, as to this issue, the Court will grant Siemers' motion in part and deny it in part as set forth above.

         (e) Dr. Timothy Burd's Medical Malpractice Actions.

         Siemers 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.

         (f) Siemers' Bankruptcy Filings

         Siemers 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. 403.

         (g) Siemers' 2011 DUI

         Siemers 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 that point.

         (h) BNSF's Contributory Negligence Defense

         Siemers 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. ...


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