Cowden v. BNSF Ry. Co.

980 F.Supp.2d 1106

Kevin COWDEN, Plaintiff,

v.BNSF RAILWAY COMPANY, Defendant.

Case No. 4:08CV01534 ERW.

United States District Court,

E.D. Missouri,

Eastern Division.

Oct. 30, 2013.

Roger C. Denton, Elizabeth M. Wilkins, Jerome J. Schlichter, Joshua D. Margolis, Nelson G. Wolff, Schlichter and Bogard, St. Louis, MO, for Plaintiff.

Harlan A. Harla, Thompson Coburn, LLP, Belleville, IL, Misty L. Edwards, Boggs and Avellino, LLC, Clayton, MO, Thomas E. Jones, Crystal M. Campbell, Thompson Coburn, LLP, St. Louis, MO, for Defendant.

MEMORANDUM AND ORDER

E. RICHARD WEBBER, Senior District Judge.

This matter comes before the Court on Defendant BNSF Railway Company's Motion in Limine [ECF No. 180], Defendant BNSF's Motion in Limine to Extend the Rulings as to Alan Blackwell to All Witnesses [ECF No. 181], Defendant's Motion in Limine to Exclude the Supervisor's Report of BNSF Employee Injury/Illness [ECF No. 182], Defendant's Motion in Limine Regarding Kenny Scammell and Greg Willard and Their Declarations [ECF No. 183], Defendant BNSF's Motion in Limine to Exclude the Testimony of Joseph Thornburg Relating to the January, 2003 Safety Meeting and Associated Minutes [ECF No. 185], Defendant's Motion in Limine to Bar Expert Testimony of Rebecca M. Summary [ECF No. 186], Defendant's Motion in Limine to Bar the Causation Testimony of Dr. Schoedinger [ECF No. 188], and Plaintiff Kevin Cowden's Motions in Limine [ECF No. 198]. The Court held a Pretrial Conference for this case on Thursday, October 24, 2013, and the parties addressed these pending motions.

I. DEFENDANT'S MOTION IN LIMINE [ECF NO. 180]

In this Motion, Defendant asks the Court for evidentiary rulings on the following 32 matters.

1. Reference to the Instant Motion

Defendant asks the Court to bar any reference to the instant Motion in Limine. Plaintiff does not object. Defendant's Motion is passed by the Court at the request of the parties.

2. Evidence of “Negligence”

Defendant seeks to bar any evidence of “negligence,” because the Court has ruled that “compliance with FRSA regulations precludes the possibility of negligence in this case.” Plaintiff objects to this Motion as overbroad. Because Defendant has a regulatory standard of care in this case,¹ the Court grants Defendant's Motion to the extent it seeks to exclude evidence that Defendant failed to act “reasonably.” Plaintiff may still offer evidence establishing Defendant failed to comply with applicable Federal Railroad Safety Act (FRSA) regulations.

3. Subsequent Remedial Measures

Defendant contends Plaintiff should be prohibited from offering evidence that it has taken subsequent remedial measures to prevent the type of injuries allegedly sustained by Plaintiff. Plaintiff responds Federal Rule of Evidence (FRE) 407, which prohibits the use of subsequent remedial measures for certain purposes, does not apply here. In support of this position, Plaintiff sets forth two arguments.

First, Plaintiff contends, because FRSA regulations supply the standard of care in this case, this suit is a strict liability case. Plaintiff maintains FRE 407 does not apply in strict liability cases. Assuming for the sake of argument Plaintiff has alleged strict liability claims, the case law remains “unclear” whether FRE 407 applies. Lopez v. Tyson Foods, Inc. 690 F.3d 869, 882 (8th Cir.2012). Recently, the Eighth Circuit found no plain error where a district court excluded subsequent remedial measures in a Fair Labor Standards Act case for overtime, a strict liability claim. Id. at 881–82. The Eighth Circuit noted “the dangers inherent in an approach that varies the admissibility of subsequent remedial measures depending on whether an action lies in strict liability or negligence.” Id. at 882–83 (quoting Porchia v. Design Equip. Co., 113 F.3d 877, 880 n. 3 (8th Cir.1997)). The Court agrees that FRE 407's “policy goal of encouraging remediation,” Buchanna v. Diehl Mach., Inc., 98 F.3d 366, 370 (8th Cir.1996), applies to strict liability claims as well as negligence. The Court declines to make such a distinction here.

Second, Plaintiff argues an exception to FRE 407 applies where federal law mandates the subsequent remedial measures at issue. Plaintiff avers that 49 C.F.R. § 213.5(a) mandates Defendant take such remedial measures. This argument, however, was raised and rejected on appeal, when the Eighth Circuit stated,

Although we have noted in the past that there is an exception to Rule 407 when remedial action is ‘mandated by superior governmental authority,’ O'Dell v. Hercules, Inc., 904 F.2d 1194, 1204 (8th Cir.1990), [Plaintiff] has failed to demonstrate that remediation was actually mandated. [Plaintiff] asserts that 49 C.F.R. § 213.5(a) imposes a requirement that railroads remedy any defect, but the plain language of the regulation does not support his assertion. Section 213.5 imposes responsibility for compliance with FRA regulations; however, if a railroad knows its track is not in compliance, repairing track to bring it into compliance is but one of three options a railroad has to avoid penalties. The district court did not abuse its discretion in excluding this portion of Blackwell's testimony.

Cowden v. BNSF Ry. Co., 690 F.3d 884, 897–98 (8th Cir.2012).

Therefore, unless Plaintiff offers a “superior governmental authority” establishing Defendant had a single mandated duty to take a specified action, Plaintiff may not introduce evidence of subsequent remedial measures to establish negligence or “strict liability.” Plaintiff may still offer evidence of subsequent remedial measures “for another purpose, such as impeachment [.]” Fed.R.Evid. 407. No questions should be asked on this subject until the Court is advised of an intention to ask a question and the Court rules. Accordingly, this Motion is held in abeyance.

4. Other Accidents or Track Conditions

Defendant seeks to exclude evidence of other accidents or track conditions, unless Plaintiff establishes such accidents or conditions were substantially similar to those at issue in the instant case. Plaintiff responds he does not seek to offer evidence of other “accidents.” However, Plaintiff argues if Defendant denies certain track conditions can cause injuries, he has the right to introduce evidence of track conditions at other locations.

In its Memorandum and Order [ECF No. 153] dated September 30, 2013, 2013 WL 5442952, the Court explained the substantial similarity requirement applies to “accidents,” but not “conditions.” However, Plaintiff still must show any evidence of prior conditions is relevant. At this stage, the Court is unwilling to make a definitive ruling. The Court will consider objections pertaining to this issue as the parties present evidence, or before they present evidence when a party requests an advance ruling. This Motion is held in abeyance.

5. Workers' Compensation

Defendant maintains the Court should bar evidence that Plaintiff lacks eligibility for Workers' Compensation, and any other evidence suggesting this lawsuit constitutes Plaintiff's sole remedy, because such evidence would be unfairly prejudicial. Plaintiff contends he should be permitted to tell the jury he lacks eligibility for Workers' Compensation to dispel any assumption he will receive or has already received benefits for his alleged injury. Plaintiff notes the parties have agreed to inform the jury during voir dire that the instant case is not a Workers' Compensation case.

The Court will exclude any mention that Plaintiff is not eligible for Workers' Compensation. Plaintiff's ineligibility is irrelevant to the issues in an FELA case, and allowing the jury to consider such evidence would unfairly prejudice Defendant. See Stillman v. Norfolk & W. Ry. Co., 811 F.2d 834, 838 (4th Cir.1987). Moreover, Defendant is not permitted to offer evidence that Plaintiff has received benefits from a collateral source; the Court “perceive[s] no reason for a different rule when [Plaintiff] seeks to inform the jury of the absence of benefits from a collateral source.” Id. Therefore, Defendant's Motion is granted. In addition, to avoid confusion of the issues and prejudice to either party, the Court will also exclude any other reference to Workers' Compensation, including the proposed stipulation that the instant case is not a Workers' Compensation case.

6. Purpose and Policy of the FELA

Defendant asks the Court to bar any comments concerning the purposes of the FELA, because such comments are irrelevant and improperly place legal issues before the jury. Plaintiff makes no objection. The Court passes this Motion at the request of the parties.

7. Safety of the Railroad Industry

Defendant argues evidence suggesting the railroad industry is unsafe lacks relevance and would merely mislead the jury. Plaintiff makes no objection. The Court passes this Motion at the request of the parties.

8. Suggesting the Jurors “Place Themselves in the Position of Plaintiff”

Defendant seeks to exclude “any argument, comment or suggestion that the jurors place themselves in the position of Plaintiff in assessing damages on the grounds that such an argument is misleading and inflammatory.” Plaintiff does not object, and the Court accordingly passes this Motion at the request of the parties.

9. “Safety Advocates” and “Sending a Message” through the Verdict

Defendant argues Plaintiff should be precluded from suggesting the jury “act as safety advocates” or “send a message to the corporate defendant” through their verdict, because punitive damages are not cognizable under the FELA. Plaintiff does not object. The Court passes this Motion at the request of the parties.

10. Defendant's “Large” Corporate Status

Defendant contends the Court should bar evidence concerning Defendant's “large” corporate status, particularly compared to Plaintiff's status as an individual, because such evidence would be unfairly prejudicial. Plaintiff makes no objection. The Court passes this Motion at the request of the parties.

11. Defe...