Gould v. Union Pacific Railroad Company

Filing 159

ORDER by Chief Judge Philip A. Brimmer on 09/15/2022, re: 113 Union Pacific Railroad Company's Motion to Reconsider Oral Ruling on UP's Motion in Limine No. 1, Doc. 113 is GRANTED. ORDERED that the portion of Defendant's Motions in Limine [Docket No. 113 ] that requests exclusion of any presentation of evidence of future losses is GRANTED.(sapod, )

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 19-cv-02326-PAB-NRN
HOLLY GOULD,
Plaintiff,
v.
UNION PACIFIC RAILROAD COMPANY,
Defendant.
ORDER
This matter is before the Court on Union Pacific Railroad Company=s Motion to
Reconsider Oral Ruling on UP=s Motion in Limine No. 1, Doc. 113 [Docket No. 151] and
that portion of Defendant’s Motions in Limine [Docket No. 113] that seeks to exclude
“argument about future losses.” Id. at 8.
I. BACKGROUND
This case involves an incident in which plaintiff, Holly Gould, claims that rocks
falling off a bridge controlled by defendant, Union Pacific Railroad Company, injured her
while she was driving her car. Docket No. 99 at 3, ¶¶ 9-13. Plaintiff alleges that
defendant’s employees were working on the bridge and pushed the rocks off the bridge.
Id., ¶¶ 8, 13. Plaintiff brings claims of negligence and respondeat superior against
defendant. Id. at 8-10.
During the Trial Preparation Conference on November 19, 2021, the Court ruled
on several motions in limine that plaintiff and defendant filed. See Docket No. 149.

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One of defendant=s motions sought to exclude Acomments at any point during a trial
about the size and wealth@ of defendant. Docket No. 113 at 3. The Court denied that
portion of defendant=s motion. Docket No 152 at 2. Defendant now moves for
reconsideration of the Court’s ruling. Docket No. 151. Additionally, one of defendant=s
motions sought to exclude A[a]ny argument or request for undisclosed damages@ plaintiff
seeks to recover. Docket No. 113 at 8-10. The Court took this motion under
advisement at the Trial Preparation Conference. Docket No. 152 at 2.
II. LEGAL STANDARD
The Federal Rules of Civil Procedure do not specifically provide for motions for
reconsideration. See Hatfield v. Bd. of Cty. Comm=rs for Converse Cty., 52 F.3d 858,
861 (10th Cir. 1995). Instead, motions for reconsideration fall within a court=s plenary
power to revisit and amend interlocutory orders as justice requires. See Paramount
Pictures Corp. v. Thompson Theatres, Inc., 621 F.2d 1088, 1090 (10th Cir. 1980) (citing
Fed. R. Civ. P. 54(b)). In determining whether to grant a motion for reconsideration,
courts consider whether new evidence or legal authority has emerged or whether the
prior ruling was clearly in error.
Motions to reconsider are generally an inappropriate vehicle to advance Anew
arguments, or supporting facts which were available at the time of the original motion.@
Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). AA motion to
reconsider should not be used to revisit issues already addressed or advance
arguments that could have been raised earlier.@ United States v. Christy, 739 F.3d
534, 539 (10th Cir. 2014).
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III. ANALYSIS
A. Motion to Reconsider
The Court previously denied defendant’s motion to exclude “references to the
size or financial condition of the Defendant railroad.” Docket No. 113 at 3; Docket No.
152 at 2. Defendant seeks reconsideration of this ruling. Docket No. 151. Defendant
does not assert that there is new evidence or new legal authority that warrants its
motion for reconsideration. See id. at 2-3. Instead, defendant argues that the Court=s
ruling is clear error based on Colo. Rev. Stat. § 13-21-102(6). Id. at 2. Defendant
does not explain why it did not cite § 13-21-102(6) in its motion in limine.
Colo. Rev. Stat. § 13-21-102(6) states that, “[i]n any civil action in which
exemplary damages may be awarded, evidence of the income or net worth of a party
shall not be considered in determining the appropriateness or amount of such
damages.” Defendant argues that the Court should exclude references to defendant=s
size and wealth based on this provision. Docket No. 151 at 2. In response, plaintiff
does not deny the applicability of § 13-21-102(6) or the fact that the statute bars plaintiff
from introducing evidence of defendant’s income or net worth to prove the
appropriateness or amount of punitive damages. Docket No. 153 at 1-2. Rather,
plaintiff argues that “[t]he fact that Union Pacific had the financial means to correct its
failing plywood board system yet chose to continue its use despite knowing that it was
dangerous, is relevant to establishing the recklessness of Union Pacific’s actions as well
as its total disregard for public safety.” Id. at 3 (emphasis in original). However, there
is no suggestion that any company, regardless of its size, would not have the financial

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means to make the corrections plaintiff identifies, meaning that evidence of defendant’s
“size and financial condition” is irrelevant. See id. at 3-5. Plaintiff then repackages
this argument to claim that defendant is “so large and controls so many bridges” that its
size and financial condition are relevant to proving willful and wanton behavior. Id. at 6.
However, this argument does not explain why the plain terms of the statute do not
prohibit such an obvious attempt to circumvent its purpose. “[T]he plain language of
section 13-21-102(6) clearly bars a court from considering a defendant’s financial data
in determining whether to award punitive damages.” Corbetta v. Albertson’s, Inc., 975
P.2d 718, 722 (Colo. 1999). Thus, although defendant fails to explain its failure to cite
the law defendant now bases its motion for reconsideration on, the Court will grant the
motion to prevent clear error and thereby prohibit plaintiff from introducing evidence of
defendant’s net worth in order to prove exemplary damages.
B. Motion in Limine
One of defendant’s motions in limine claims that plaintiff has not provided a
computation or itemization of her future damages. Docket No. 113 at 8. Citing Fed.
R. Civ. P. 37, defendant seeks to prohibit plaintiff from “arguing for or presenting
evidence about future losses” due to plaintiff’s failure to make disclosures as required
by Fed. R. Civ. P. 26(a). Id. at 9. Plaintiff argues she has made sufficiently specific
disclosures of future damages and she should not be precluded from presenting
evidence of future damages at trial. Docket No. 139 at 1-2.
Rule 26(a)(1)(A)(iii) of the Federal Rules of Civil Procedure requires a party to
provide “a computation of each category of damages claimed by the disclosing party.”
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Fed. R. Civ. P. 26(a)(1)(A)(iii). “A defendant generally is entitled to a specific
computation of a plaintiff’s damages under Fed. R. Civ. P. 26(a)(1)(C) and [is] further
entitled to have made available for inspection and copying the documents and other
evidentiary material on which such computation is based.” Kleiner v. Burns, 2000 WL
1909470, at *2 (D. Kan. Dec. 22, 2000). A computation of damages “requires more
than providing—without any explanation—undifferentiated financial statements.”
Design Strategy, Inc. v. Davis, 469 F.3d 284, 295 (2d Cir. 2006). Rather, a party must
provide a “specific formula indicating how [its] theory of damages is supported” without
requiring the opposing party to perform calculations to reach a total number. Id. at 293;
see also Ellis v. State Farm Fire & Cas. Co., 2008 WL 11389372, at *3 (E.D. Okla. May
23, 2008) (“Plaintiff[] must specify the types of general damages claimed, the amounts,
and provide the supporting documents or other evidentiary materials on which the
computations are based, including materials bearing on the nature and extent of injuries
suffered.”); Campbell v. CSAA Fire & Cas. Ins. Co., 2020 WL 3244010, at *2 (W.D.
Okla. June 15, 2020) (ruling that disclosure of damages requiring defendant to “review a
list of documents recording a number of expenses and compute the damages for
themselves” to be insufficient under Rule 26). Claimed future damages require a
demand with a calculation in support of that demand supported by evidence. See
Clayman v. Starwood Hotels & Resorts Worldwide, 343 F. Supp. 2d 1037, 1047 (D.
Kan. 2004) (ruling that making the computation of future damages available to
defendant through an expert witness to be insufficient under Rule 26). Rule 26(e) also
requires a party to supplement its Rule 26(a) disclosures, interrogatory responses,
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requests for production, and requests for admission in a timely matter if the party learns
that its disclosure or response was insufficient or inaccurate. Fed. R. Civ. P. 26(e)(1).
A party’s failure to comply with Rule 26(a) subjects it to the sanctions identified in
Fed. R. Civ. P. 37(c)(1). Pursuant to Rule 37(c)(1), “[i]f a party fails to provide
information or identify a witness as required by Rule 26(a) or (e), the party is not
allowed to use that information or witness to supply evidence on a motion, at a hearing,
or at a trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P.
37(c)(1) (emphasis added). The Tenth Circuit considers four factors in determining
whether the failure to disclose is substantially justified or harmless: (1) the prejudice or
surprise to the impacted party; (2) the ability to cure the prejudice; (3) the potential for
trial disruption; and (4) the erring party’s bad faith or willfulness. Woodworker’s Supply,
Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999). The
determination of whether a Rule 26(a) violation is justified or harmless is entrusted to
the broad discretion of the district court. Id. The nonmoving party has the burden of
showing that it was substantially justified in failing to comply with Rule 26(a)(1).
Nguyen v. IBP, Inc., 162 F.R.D. 675, 680 (D. Kan. 1995).
Plaintiff does not argue that she has provided a computation or itemization of
future damages; rather, plaintiff identifies evidence of future damages she has provided
that she claims defendant had “ample opportunity to explore.” Docket No. 139 at 3.
Plaintiff states that one of her experts, Dr. Dennis Helffenstein, indicated in his expert
report that plaintiff “would benefit from additional individual psychotherapy” and
“individual cognitive rehabilitation services.” Id. at 2 (quoting Docket No. 139-1 at 166

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17). Plaintiff also identified Dr. Ernest Braxton as an expert witness in her Rule 26(a)
disclosures on August 17, 2020. Id. at 3. Plaintiff stated that Dr. Braxton may be
called to testify to plaintiff’s “past, present, and future injuries, damages, and losses.”
Docket No. 139-7 at 9. Finally, plaintiff notes that in her own deposition she testified
she had ablation treatment and would “probably have to come back for life.” Docket
No. 139 at 2 (quoting 139-3, 116:1-11). Plaintiff does not, however, point to any
computation or itemization of the future treatments she disclosed, except that one
ablation procedure costs $1,395. Id. (citing Docket No. 139-4). Plaintiff does not
describe how these disclosures meet the Rule 26 requirement that a computation of
damages be provided and does not argue that her damages are an exception to the
Rule 26 requirement. The Court finds plaintiff has failed to make the disclosures
required by Rule 26(a)(1)(A)(iii).
Defendant argues that Rule 37 sanctions are appropriate because it is prejudiced
by the fact that it has not retained an expert to rebut plaintiff’s claims for future damages
and defendant has no opportunity to cure the prejudice since discovery is closed.
Docket No. 113 at 10. Plaintiff does not respond to defendant’s arguments seeking
sanctions. See Docket No. 139.
The discovery deadline passed a long time ago in this case. See Docket No. 58.
Trial in this matter is set for October 24, 2022. Docket No. 150. The Court finds that
plaintiff’s failure to make disclosures as required by Rule 26 regarding future damages
is neither harmless nor was it substantially justified. Considering the first and second
Woodworker’s factors of prejudice and ability to cure that prejudice, Woodworker’s, 170
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F.3d at 993, the Court finds that plaintiff’s failure to disclose has caused incurable
prejudice to defendant. At this point defendant would not have an opportunity to
prepare a sufficient rebuttal to plaintiff’s evidence of future damages. Regarding the
last Woodworker’s factor, plaintiff’s bad faith or willfulness, see id., plaintiff does not
provide any reason why she failed to provide a computation of her future damages, and
the Court is unable to discern any reason. Additionally, plaintiff does not explain why
she did not supplement her disclosures. These failures imply a degree of willfulness.
Based on the Woodworker’s factors, the Court finds exclusion to be the appropriate
remedy. Accordingly, plaintiff will be barred from presenting any evidence of future
damages at trial.
IV. CONCLUSION
For the foregoing reasons, it is
ORDERED that Union Pacific Railroad Company=s Motion to Reconsider Oral
Ruling on UP=s Motion in Limine No. 1, Doc. 113 [Docket No. 151] is GRANTED. It is
further
ORDERED that the portion of Defendant=s Motions in Limine [Docket No. 113]
that requests exclusion of any presentation of evidence of future losses is GRANTED.
DATED September 15, 2022.
BY THE COURT:

PHILIP A. BRIMMER
Chief United States District Judge
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