Lybrand v. Union Pacific Railroad Company
Filing
76
ORDER granting in part, denying in part and holding in abeyance in part 64 Motion in Limine and granting in part, denying in part and holding in abeyance in part plaintiff's motion in limine 66 . Signed by Judge James M. Moody on 5/27/12. (kpr)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
F. MIKE LYBRAND
VS.
PLAINTIFF
NO. 5:10CV00045 JMM
UNION PACIFIC RAILROAD COMPANY
DEFENDANT
ORDER
Pending are Defendant’s motion in limine, docket #64 and Plaintiff’s motion in limine,
docket # 66. Following a review of the pleadings, the Court finds and orders as follows:
A..
Defendant’s motion in limine is GRANTED IN PART, DENIED IN PART AND
HELD IN ABEYANCE IN PART.
(1)
The Court will defer ruling on Defendant’s motion seeking to preclude a
jury instruction stating that this lawsuit is “Plaintiff’s exclusive remedy”
or that Plaintiff “is not eligible to receive worker’s compensation benefits”
until the jury instruction conference. The motion is granted prohibiting
any mention that this lawsuit is “Plaintiff’s exclusive remedy” or that
Plaintiff “is not eligible to receive worker’s compensation benefits” during
the trial until ruled on in the jury instruction conference.
(2)
Defendant’s motion seeking to preclude evidence or testimony that the
jurors act as safety advocates in this lawsuit or that they send a message
with their verdict is granted as moot.
(3)
Defendant’s motion seeking to exclude any reference or argument
concerning punitive or exemplary damages is granted as moot.
(4)
Defendant’s motion seeking to exclude any reference to or argument
concerning “profits over people” is granted subject to reconsideration
based on the evidence presented at trial.
(5)
Defendant’s motion seeking to exclude any reference to or argument
concerning the size or wealth of the Defendant or that it is an out-of-state
corporation is granted subject to reconsideration based on the evidence
presented at trial. Neither party should refer to the Defendant as “the men
and women of Union Pacific.”
(6)
Defendant’s motion seeking to exclude any reference to or argument that
the railroad industry in general is unsafe or dangerous is granted.
(7)
Defendant’s motion seeking to exclude any reference to settlement
negotiations, settled claims or buyouts is granted as moot.
(8)
Defendant’s motion seeking to exclude any reference to the loss of society
or companionship sustained by Plaintiff’s friends or relatives is granted.
(9)
Defendant’s motion seeking to exclude any reference to the congressional
intent in enacting the Federal Employers’ Liability Act is granted as moot.
(10)
Defendant’s motion seeking to exclude any reference to or statement to
the jury regarding the amount they would award if they were in Plaintiff’s
shoes is granted as moot.
(11)
Defendant’s motion seeking to exclude any reference to or argument
concerning income taxes is granted as moot. The Court will defer ruling
on Defendant’s motion seeking to preclude evidence relating to gross
wages until trial.
(12)
The Court will defer ruling on Defendant’s motion seeking to exclude any
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reference to its discovery responses until trial.
(13)
The Court will defer ruling on Defendant’s motion seeking to exclude any
evidence regarding intimidation or threats until trial.
(14)
Defendant’s motion seeking to exclude evidence and argument relating to
the size and slope of the ballast is granted.
(15)
Defendant’s motion seeking to exclude evidence of past medical bills paid
by Union Pacific is granted; Defendants motion seeking to exclude
evidence of future medical bills is denied.
(16)
The Court will defer ruling on Defendant’s motion seeking to exclude any
reference to alleged claims or injuries of anyone other than Plaintiff until
trial.
(17)
Defendant’s motion seeking to exclude evidence or argument relating to
the size of defense counsel’s law firm is granted as moot.
(18)
Defendant’s motion seeking to preclude testimony that Plaintiff’s 1973
knee injury occurred at work is denied.
(19)
Defendant’s motion seeking to preclude statements from Plaintiff’s
Counsel that contain personal opinions and argumentative language is
premature. The Court will address these objections, if necessary, at trial.
(20)
The Court will address any of Defendant’s objections to Plaintiff’s pretrial
disclosures or exhibits at the pretrial conference or during trial.
(21)
Defendant’s motion seeking to preclude any reference to discovery
disputes or the Court’s rulings is granted as moot.
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B.
Plaintiff’s motion in limine is GRANTED IN PART, DENIED IN PART AND
HELD IN ABEYANCE IN PART.
(1)
Plaintiff’s motion in limine seeking to exclude evidence of when and why
Plaintiff hired and consulted with an attorney is granted as moot.
(2)
Plaintiff’s motion in limine to preclude evidence relating to Railroad
Retirement Benefits is granted. The Court will make the determination of
any appropriate set-off at trial.
(3)
Plaintiff’s motion in limine to preclude evidence relating to Railroad
Retirement Taxes is granted. The Court will make the determination of
any appropriate set-off at trial.
(4)
Plaintiff’s motion in limine seeking to exclude evidence relating to
Plaintiff’s Personnel and Medical files is denied.
(5)
The Court will defer ruling on Plaintiff’s motion in limine seeking to
exclude evidence relating to the financial or pecuniary circumstances of
the Plaintiff until trial.
(6)
Plaintiff’s motion in limine seeking to exclude any medical study or
literature not disclosed in Rule 26(a)(2) reports of Defendant’s expert is
denied. Defendant is entitled to challenge the testimony of Plaintiff’s
experts with the use of such articles.
(7)
Plaintiff’s motion in limine seeking to exclude evidence or testimony
regarding Plaintiff’s failure to consider alternative positions with
defendant is denied.
(8)
The Court will defer ruling on Plaintiff’s motion in limine seeking to
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exclude evidence or testimony regarding the retirement age of other
workers until trial.
(9)
Plaintiff’s motion in limine seeking to exclude letters and other evidence
regarding Defendant’s Vocational Rehabilitation Program is denied.
(10)
Plaintiff’s motion in limine seeking to exclude suggestions of secondary
gain is denied.
(11)
Plaintiff’s motion in limine seeking to exclude any reference to the “men
and women of Union Pacific” is granted.
(12)
Plaintiff’s motion seeking to exclude any reference to how other patients
recovered from similar injuries or surgeries is granted as to specific cases.
The parties are directed to notify the Court if they intend to make
reference to generic recovery rates.
(13)
Plaintiff’s motion seeking to exclude testimony or evidence relating to
Defendant’s safety awards is granted as moot.
(14)
Plaintiff’s motion seeking to exclude testimony or evidence relating to
training provided to “all employees” is granted as moot.
(15)
Plaintiff’s motion seeking to exclude proof of Plaintiff’s “assumption of
the risk” is denied to the extent that Defendant will be allowed to
introduce evidence to attempt to prove Plaintiff’s contributory negligence.
(16)
Plaintiff’s motion seeking to exclude evidence relating to past civil and or
criminal charges is granted as moot.
(17)
The Court will defer ruling on Plaintiff’s motion seeking to exclude
evidence relating to Plaintiff’s prior claims made against Union Pacific
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until trial.
(18)
The Court will defer ruling on Plaintiff’s motion in limine seeking to
exclude evidence or testimony regarding the availability of retirement
benefits at the age of 60 until trial.
(19)
Plaintiff’s motion seeking to exclude the amount of damages Plaintiff
requested in his Complaint is granted as moot.
(20)
Plaintiff’s motion seeking to exclude the Plaintiff’s discipline history is
granted as moot.
(21)
Plaintiff’s motion seeking to exclude evidence or testimony that Plaintiff
was untruthful is granted.
IT IS SO ORDERED this 27th day of April, 2012.
______________________________
James M. Moody
United States District Judge
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