Hardy v. Union Pacific Railroad Company

Filing 71

ORDER. Defendant Union Pacific Railroad Companys First General Motion In Limine 35 filed 9/8/2011, is DENIED without prejudice. Union Pacific Railroad Companys Motion In Limine To Exclude Inadmissible Documents Identified by Plaintiff As Proposed Trial Exhibits 38 filed 9/8/2011, is DENIED without prejudice. Union Pacific Railroad Companys Motion In Limine To Exclude Inadmissible Documents Identified by Plaintiff As Proposed Trial Exhibits 38 filed 9/8/2011, is DENIED without prejudice. Defendant Union Pacific Railroad Companys Moiton In Limine and Memorandum To Strike Nondisclosed Witnesses From Trial, or, In the Alternative, To Exclude Duplicative and Excessive Witnesses 36 filed 9/8/2011, is DENIED without prejudice to the exte nt the defendant argues that the testimony of the three witnesses specified in the motion is duplicative and excessive. On or before 11/1/2011, the defendant SHALL FILE a reply addressing the plaintiffs argument that the testimony of Wayne Reese should be admitted despite the tardy disclosure of this witness. By Judge Robert E. Blackburn on 10/27/2011.(sah, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Case No. 10-cv-01880-REB–MJW
MARCUS E. HARDY,
Plaintiff,
v.
UNION PACIFIC RAILROAD COMPANY, a corporation,
Defendant.
ORDER CONCERNING MOTIONS IN LIMINE
[#35, #36, & #38]
Blackburn, J.
This matter is before me on the following: (1) Defendant Union Pacific Railroad
Company’s First General Motion In Limine [#35]1; (2) Defendant Union Pacific
Railroad Company’s Moiton In Limine and Memorandum To Strike Nondisclosed
Witnesses From Trial, or, In the Alternative, To Exclude Duplicative and
Excessive Witnesses [#36]; and (3) Union Pacific Railroad Company’s Motion In
Limine To Exclude Inadmissible Documents Identified by Plaintiff As Proposed
Trial Exhibits [#38]. Each motion was filed on September 8, 2011. The plaintiff filed
responses [#59, #60, #61] on October 17 and 18, 2011.
In its general motion in limine [#35], the defendant raises 17 issues addressing
evidence or argument that might be presented at trial and argues that this evidence and
argument must be excluded from the trial. In its motion in limine concerning documents

1
“[#35]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.

identified by the plaintiff [#35], the defendant identifies various documents identified by
the plaintiff as possible exhibits and argues that they must be excluded from evidence.
In this motion, the defendant relies heavily on Rules 402, 403, and 408 of the Federal
Rules of Evidence. The evidence issues raised in these two motions are driven
primarily by the nature of the evidence actually presented at trial. These issues cannot
be resolved until evidence is presented at trial.2 Of course, no trial evidence yet has
been presented, and, thus, by definition, the evidentiary context of this case remains
uncertain. Notably, the relevance of the evidence in question, and its potential to cause
unfair prejudice or confusion, to mislead the jury, or to waste time, cannot be
determined until the evidentiary landscape becomes clear at trial. The defendant’s
objections to certain possible arguments are hypothetical and often dependent on the
nature of the evidence presented at trial. The defendant’s general motion in limine [#35]
and its motion in limine concerning documents identified by the plaintiff [#35] both are
denied without prejudice.
The defendant’s motion to strike witnesses not timely disclosed [#36] concerns
three lay witnesses. The plaintiff’s response demonstrates that two of the witnesses,
Gary Waeckerlin and John Syler, were timely disclosed. The plaintiff concedes that the
third witness, Wayne Reese, was not timely disclosed. However, the plaintiff contends
that Resse and the nature of his testimony were disclosed in July, 2011, that any
prejudice to the defendant caused by the tardy disclosure is easily curable, that
presentation of his testimony would not disrupt or delay the trial, and that there is no

2
This is precisely why I specifically discourage the filing of such motions in my Practice
Standards. REB Civ. Practice Standard V.F.

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indication of willfulness or bad faith. Before resolving the admissibility of Reese’s
testimony, I direct the defendant to file a response to the plaintiff’s argument concerning
Reese.
To the extent the defendant argues that these three witnesses are duplicative
and excessive, that argument is dependent on the nature of the evidence actually
presented at trial. The motion to exclude these witnesses as duplicative and excessive
is denied without prejudice.
THEREFORE, IT IS ORDERED as follows:
1. That Defendant Union Pacific Railroad Company’s First General Motion
In Limine [#35] filed September 8, 2011, is DENIED without prejudice;
2. That Union Pacific Railroad Company’s Motion In Limine To Exclude
Inadmissible Documents Identified by Plaintiff As Proposed Trial Exhibits [#38]
filed September 8, 2011, is DENIED without prejudice;
3. That Defendant Union Pacific Railroad Company’s Moiton In Limine and
Memorandum To Strike Nondisclosed Witnesses From Trial, or, In the Alternative,
To Exclude Duplicative and Excessive Witnesses [#36] filed September 8, 2011, is
DENIED to the extent the motion is based on the alleged untimely disclosure of
witnesses, Gary Waeckerlin and John Syler;
4. That Defendant Union Pacific Railroad Company’s Moiton In Limine and
Memorandum To Strike Nondisclosed Witnesses From Trial, or, In the Alternative,
To Exclude Duplicative and Excessive Witnesses [#36] filed September 8, 2011, is
DENIED without prejudice to the extent the defendant argues that the testimony of the

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three witnesses specified in the motion is duplicative and excessive; and
5. That on or before Tuesday, November 1, 2011, the defendant SHALL FILE
a reply addressing the plaintiff’s argument that the testimony of Wayne Reese should be
admitted despite the tardy disclosure of this witness.
Dated October 27, 2011, at Denver, Colorado.
BY THE COURT:

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