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Malinski v. BNSF Railway Co.

United States District Court, N.D. Oklahoma

March 31, 2017

TYLER D. MALINSKI, Plaintiff,
v.
BNSF RAILWAY COMPANY, Defendant. and PAULA SMITH, Intervenor,

          OPINION AND ORDER

          JOHN E. DOWDKLL UNITED STATES DISTRICT JUDGE

         Before the Court are Defendant's Motion in Limine Regarding the Train Crew's Conduct (Doc. 41); Defendant's Motion in Limine Regarding Evidence or Arguments Concerning Information Protected by 23 U.S.C. § 409, 49 U.S.C. § 20903 or Okla. Stat. tit. 17, § 86 (Doc. 42); Defendant's Motion in Limine Regarding the Adequacy of Locomotive Warning Devices (Doc. 43); Defendant's Motion in Limine Regarding Improper Lay Witness Opinion Testimony and the Alleged “Hazardous” Condition of the Crossing (Doc. 44); Defendant's Motion in Limine to Exclude Expert Opinions or Arguments that the Crossing was Subject to the AASHTO Guidelines (Doc. 46); Defendant's Motion in Limine Regarding the Speed of the Train (Doc. 47); Defendant's Motion in Limine Regarding the Financial Condition of Defendant (Doc. 48); Defendant's Motion in Limine Regarding Opinions of Plaintiff's Experts Beyond the Scope of Their Reports (Doc. 49); Plaintiff's Motion in Limine Regarding Trespass on Unfenced Pasture (Doc. 50); Defendant's Motion in Limine Regarding Newspaper Articles, Internet Reports, Television or Radio Reports or Other Media Formats Which Address the Subject Matter of this Litigation (Doc. 51); Defendant's General Motion in Limine (Doc. 52); Defendant's Motion in Limine Regarding Sight Obstructions (Doc. 53); Defendant's Motion in Limine Regarding Economic Losses without Competent Expert Testimony (Doc. 55); and Defendant's Motion in Limine Regarding the Bend in Plaintiff's Finger (Doc. 57).

         I. Legal Standard

         “The purpose of a motion in limine is to aid the trial process by enabling the Court to rule in advance of trial on the relevance of certain forecasted evidence, as to issues that are definitely set for trial, without lengthy argument at, or interruption of, t he trial.” Mendelsohn v. Sprint/United Mgmt. Co., 587 F.Supp.2d 1201, 1208 (D. Kan. 2008) aff'd, 402 F. App'x 337 (10th Cir. 2010) (internal quotations omitted). While pretrial limine rulings can save time and avoid interruptions at trial, “a court is almost always better situated during actual trial to assess the value and utility of evidence.” Id. (citation omitted). For this reason, some courts defer making in limine rulings unless the “evidence is clearly inadmissible on all potential grounds.” Hawthorne Partners v. AT & T Technologies, Inc., 831 F.Supp. 1398, 1400 (N.D. Ill. 1993) (“Unless evidence meets this high standard, evidentiary rulings should be deferred until trial so that questions of foundation, relevancy and potential prejudice may be resolved in proper context.”).

         II. BNSF's Motions in Limine

         As an initial matter, several of BNSF's requests are generic, overly broad, and are not supported either by references to specific evidence or to any authorities beyond the evidence rules. Moreover, some of the issues raised in the Motions in Limine do not warrant in limine rulings at this time and will instead be addressed at trial and/or at pretrial if and when they arise. Thus, the Court will deny those requests without prejudice at this time.

         1. Defendant's Motion in Limine Regarding the Train Crew's Conduct (Doc. 41)

         BNSF argues that the Court should prohibit plaintiff from soliciting testimony, suggesting, or raising any argument regarding the propriety of the train crew's conduct because such testimony is unsupported by evidence before the Court and its admission would violate Fed.R.Evid. 401, 402, and 403. Specifically, BSNF anticipates that plaintiff may suggest that the crew did not brake appropriately or that the horn was not sounded for a sufficient length of time. (Doc. 41 at 2). In response, plaintiff quotes Okla. Stat. title 66, § 126, and several cases but offer no analysis in support of his contention that BNSF's request be denied. (Doc. 61 at 1-3). Nor has plaintiff asserted that he intends to introduce such evidence.

         The Court finds that a ruling is not warranted at this time and the issue will instead be addressed at trial if and when it arises. This request is denied without prejudice.

         2. Defendant's Motion in Limine Regarding Evidence or Arguments Concerning Information Protected by 23 U.S.C. § 409, 49 U.S.C. § 20903 or Okla. Stat. tit. 17, § 86 (Doc. 42)

         BNSF asserts that plaintiff should be barred from introducing reports, surveys, schedules, lists or data “including, but not limited to, ratings of crossings or priority lists based on [the] hazardousness of the crossing at issue” under 23 U.S.C. § 409, 49 U.S.C. § 20903, and Okla. Stat. tit. 17, § 86. BNSF states the motion is premised upon its belief that plaintiff may seek to introduce such evidence at trial. (Doc. 42 at 2). Plaintiff has not responded to this motion in limine.

         Without BNSF identifying any evidence or providing analysis as to specific evidence that it claims is excludable under the cited authorities, it is impossible for the Court to issue a pretrial ruling either excluding or permitting every possible category of evidence that is implicated under 23 U.S.C. § 409, 49 U.S.C. § 20903, and Okla. Stat. tit. 17, § 86 (Doc. 42). This request is premature and denied without prejudice.

         3. Defendant's Motion in Limine Regarding the Adequacy of Locomotive Warning Devices (Doc. 43)

         BNSF argues that plaintiff may try to introduce evidence that questions the adequacy of the locomotive horn on the train, and such evidence is inadmissible under the Boiler Inspection Act, 45 U.S.C. § 22, et seq., and the Federal Railroad Safety Act, 49 U.S.C. § 2010, et seq. (Doc. 43 at 1).

         Plaintiff did not file a response to this motion in limine. Nonetheless, because plaintiff has not alleged an inadequate locomotive warning device claim, such evidence is not relevant. The Court finds that this motion in limine is granted.

         4. Defendant's Motion in Limine Regarding Improper Lay Witness Opinion Testimony and the Alleged “Hazardous” Condition of the Crossing (Doc. 44)

         BNSF requests that the Court prevent lay witnesses from offering opinions as to whether the subject crossing is “hazardous, ” “extra hazardous, ” or “ultra-hazardous, ” and from offering opinions regarding appropriate warning devices for the crossing. BSNF argues that such testimony is limited by Fed.R.Evid. 701. (Doc. 44 at 3). Plaintiff objects to this motion in limine on the grounds that Rule 701 allows lay witnesses, such as plaintiff, to testify about the condition of the crossing that they personally observed. (Doc. 64 at 3).

         Rule 701 allows lay witnesses to provide opinions limited to those: (a) rationally based on the witness's perception; (b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. Fed.R.Evid. 701. The Court finds that lay witness testimony regarding whether the County Road 210 crossing was “hazardous, ” “extra hazardous, ” or “ultra-hazardous” exceed the scope of Rule 701 because, as BNSF points out, these terms carry legal implications and thus must be based upon specialized knowledge under Rule 702. Moreover, opinion testimony from unqualified witnesses regarding the safety of the crossing would not be helpful to a jury. For the same reason, lay witness testimony as to hypothetical warning devices appropriate for the subject crossing is also improper. Accordingly, BSNF's request is granted.

         The Court notes that plaintiff will not be prevented from introducing lay witness testimony regarding the condition of the railroad that complies with Rule 701.

         5. Defendant's Motion in Limine to Exclude Expert Opinions or Arguments that the Crossing Was Subject to the AASHTO Guidelines (Doc. 46)

         BNSF seeks exclusion of testimony by plaintiff's expert, Steven Lett, that the County Road 210 crossing was subject to the American Association of State Highway and Transportation Officials' Policy on Geometric Design of Highways and Streets (the “AASHTO guidelines”). Specifically, BNSF argues that allowing Mr. Lett to testify that the AASHTO guidelines constitute “legal standards of care” would mislead and confuse the jury. (Doc. 46 at 1). Plaintiff's objection concedes that the AASHTO guidelines do not constitute a legal standard, but states that they are otherwise relevant and will assist the jury in its understanding of the case. (Doc. 69 at 3). Given plaintiff's concession, BNSF's motion is granted and plaintiff's expert will not be allowed to testify that the AASHTO guidelines constitute legal standards for railroad crossings. However, the limited scope of the Court's ruling does not bar other testimony regarding the AASHTO guidelines that is otherwise admissible under the Federal Rules of Evidence.

         6. Defendant's Motion in Limine Regarding the Speed of the Train (Doc. 47)

         BNSF argues that plaintiff may try attempt to suggest that the train was travelling at an excessive rate of speed, and such evidence is inadmissible under the Federal Railroad Safety Act, 49 U.S.C. § 2010, et seq., because the train was traveling at or below the speed limit set by the Federal Railroad Administration. (Doc. 47 at 1).

         Plaintiff did not respond to this motion in limine. As the Court determined with respect to BNSF's motion in limine regarding the adequacy of locomotive warning devices, because plaintiff has not alleged an excessive speed claim, such evidence is not relevant. The Court grants this motion in limine.

         7. Defendant's Motion in Limine Regarding the Financial Condition of Defendant (Doc. 48)

         BNSF argues that the Court should prevent plaintiff from referencing the financial condition of BNSF to show that BNSF is capable of paying damages and/or is capable of installing additional warning devices at the crossing in question. BNSF also seeks to exclude evidence related to the size of BNSF, its corporate status, statements to the jury that it is in a position to “send a message” to BNSF by its verdict, and references that BNSF is a large corporation that has no concern for motorists in general. (Doc. 48 at 1-2).

         Plaintiff did not respond to this motion in limine. The Court finds that such evidence is not relevant to plaintiff's claim and would unduly prejudice the jury. This request is thus granted.

         8. Defendant's Motion in Limine Regarding Opinions of Plaintiff's Experts Beyond the Scope of Their Reports (Doc. 49)

         BSNF argues that plaintiff's failure to comply with the Court's scheduling deadlines supports exclusion of any expert opinions beyond the scope of opinions in their deposition. (Doc. 49 at 1-2). However, given the Court's Order regarding the applicability of the Amended Scheduling Order to plaintiff (Doc. 127), this Motion is moot.

         9. Defendant's Motion in Limine Regarding Newspaper Articles, Internet Reports, Television or Radio Reports or Other Media Formats Which Address ...


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