Hardy v. Union Pacific Railroad Company

Filing 87

ORDER. Plaintiffs Motion In Limine To Exclude Assumption of Risk Evidence and Argument and Supporting Brief 44 filed 10/4/2011, is DENIED without prejudice. The Plaintiffs Motion In Limine To Deny Defendants Request ToApportion Damages Based on Al leged Non-Railroad Causes and Supporting Brief 45 filed 10/4/2011, is DENIED. The Plaintiffs Motion In Limine To Exclude Genetics Testimony and Argument and Supporting Brief 47 filed 10/4/2011, is DENIED. The Plaintiffs Motion In Limine To Exclude Collateral Source Evidence and Supporting Brief 52 filed 10/6/2011, is DENIED without prejudice. By Judge Robert E. Blackburn on 11/4/2011.(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
[#44, #45, #47, & #52]
Blackburn, J.
This matter is before me on the following: 1) Plaintiff’s Motion In Limine To
Exclude Assumption of Risk Evidence and Argument and Supporting Brief [#44]1
filed October 4, 2011; 2) Plaintiff’s Motion In Limine To Deny Defendant’s Request
To Apportion Damages Based on Alleged Non-Railroad Causes and Supporting
Brief [#45] filed October 4, 2011; 3) Plaintiff’s Motion In Limine To Exclude Genetics
Testimony and Argument and Supporting Brief [#47] filed October 4, 2011; and 4)
Plaintiff’s Motion In Limine To Exclude Collateral Source Evidence and
Supporting Brief [#52] filed October 6, 2011. The defendant filed responses [#67, #68,
#69, and #70] to each of the motions. I deny the motions.
The plaintiff asserts claims under the Federal Employer’s Liability Act, 45 U.S.C.
§ 51 et seq. (FELA). In his motion to exclude evidence of assumption of risk [#44], the

1
“[#44]” 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.

plaintiff relies on 45 U.S.C. § 54, part of FELA. Under § 54, the affirmative defense of
assumption of risk may not be asserted in a FELA action. However, under 45 U.S.C. §
53, the plaintiff’s contributory negligence may be considered by the jury. If contributory
negligence is proven, such negligence shall not bar recovery by the plaintiff. Evidence
relevant to assumption of risk and contributory negligence often is identical or similar. It
is difficult to conceive of evidence relevant to assumption of risk but not relevant to
contributory negligence. To the extent such evidence may be presented at trial, the
admissibility of the evidence will be driven primarily by the nature of the evidence
actually presented at trial. These issues cannot be resolved until evidence is presented
at trial.2 The plaintiff’s motion to exclude assumption of risk evidence is denied without
prejudice.
In his motion to exclude evidence relevant to apportionment of damages [#45],
the plaintiff seeks to exclude from evidence any evidence tending to show that the
normal effects of aging, a pre-existing condition, or a genetic predisposition caused
some or all of the injuries claimed by the plaintiff. In a FELA case, evidence that the
plaintiff’s injury was caused, in part, by a preexisting condition or a previous accident is
admissible to determine the degree to which the defendant’s alleged negligence, as
opposed to a pre-existing condition or prior accident, caused the plaintiff’s injuries.
Sauer v. Burlington Norther R. Co., 106 F.3d 1490, 1493 - 1495 (10th Cir. 1997). The
plaintiff’s motion to exclude evidence relevant to apportionment of damages is denied.
The plaintiff’s motion to exclude genetics testimony [#47] is a motion under Fed.
R. Evid. 702 masquerading as a motion in limine. The Trial Preparation Conference

2
I specifically discourage the filing of such motions in my Practice Standards. See REB Civ.
Practice Standard V.F.

2

Order [#16] filed October 7, 2010, provides that all motions raising issues under
Fed.R.Evid. 702 as codified and construed shall be filed by February 21, 2011, and
marshaled thereafter as prescribed by D.C.COLO.LCivR 7.1C.” Order [#16], p. 2. The
plaintiff’s Rule 702 motion is untimely and, on that basis alone, is subject to denial.
Considering the motion on its merits, and disregarding its untimeliness, the motion must
be denied. As noted above, evidence that a plaintiff’s preexisting condition, including a
predisposition, contributed to the claimed injuries is admissible in a FELA case. To the
extent the challenged evidence is relevant and probative in relation to this issue, it is
admissible. The plaintiff’s motion to exclude genetics testimony is denied.
In his motion to exclude collateral source evidence [#52], the plaintiff seeks to
exclude evidence of disability benefits, retirement benefits, and insurance benefits
received by the plaintiff. To the extent such evidence may be presented at trial, the
admissibility of the evidence will be driven primarily by the nature of the evidence
actually presented at trial. These issues cannot be resolved until evidence is presented
at trial. The plaintiff’s motion to exclude collateral source evidence is denied without
prejudice.
THEREFORE, IT IS ORDERED as follows:
1. That Plaintiff’s Motion In Limine To Exclude Assumption of Risk
Evidence and Argument and Supporting Brief [#44] filed October 4, 2011, is
DENIED without prejudice;
2. That the Plaintiff’s Motion In Limine To Deny Defendant’s Request To
Apportion Damages Based on Alleged Non-Railroad Causes and Supporting Brief
[#45] filed October 4, 2011, is DENIED;
3. That the Plaintiff’s Motion In Limine To Exclude Genetics Testimony and
3

Argument and Supporting Brief [#47] filed October 4, 2011, is DENIED; and
4. That the Plaintiff’s Motion In Limine To Exclude Collateral Source
Evidence and Supporting Brief [#52] filed October 6, 2011, is DENIED without
prejudice.
Dated November 4, 2011, at Denver, Colorado.
BY THE COURT:

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