CLEMENTS v. NORFOLK SOUTHERN RAILWAY COMPANY

Filing 50

ORDER granting in part and denying in part 48 Motion for Reconsideration. Ordered by Judge Hugh Lawson on 2/4/2013. (nbp)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION

MILLON R. CLEMENTS,
Plaintiff,
Civil Action No. 5:11-CV-322 (HL)

v.
NORFOLK SOUTHERN
COMPANY,

RAILWAY

Defendant.

ORDER
This case is before the Court on Plaintiff’s Motion for Reconsideration.
(Doc. 48). The motion is granted, in part, and denied, in part, as outlined below.
I.

COLLATERAL SOURCE EVIDENCE
Plaintiff has moved the Court to reconsider its previous ruling allowing the

admission of evidence that Plaintiff is receiving disability benefits from the
Railroad Retirement Board. The motion for reconsideration on this point is
denied.
Contrary to what Plaintiff states in his motion, the Court in its January 23
order did not hold that “collateral source evidence can come in as a matter of
law.” (Doc. 48, p. 3). Instead, the Court found that when using a Rule 403
balancing test, the probative value of the disability payments outweighs any
unfair prejudice. The Court determined that under the facts of this case, the

evidence was admissible. The Court did not issue a blanket rule that collateral
source evidence is always admissible, as is reflected by the fact the Court is
keeping out evidence of insurance payments, medical expenses, and
supplemental sickness benefit payments, among other things.
In its opinion, the evidence of the disability payments is probative and is
not cumulative. The jury will be instructed that the evidence can only be used for
a limited purpose. The Court finds no reason to reconsider its previous ruling.
II.

DENIAL OF VIDEOTAPED EXPERT TESTIMONY
Plaintiff has moved the Court to reconsider its ruling that the deposition of

Dr. Thompson will not be allowed unless Defendant withdraws its objection to the
deposition. The motion is denied.
The Court permits parties to take depositions for the preservation of
evidence or for use at trial after the pretrial conference, but only if the parties
agree to the depositions between themselves. At the pretrial conference,
Defendant stated that it would not agree to Dr. Thompson’s deposition. The
Court’s rule on this issue is clear, and it will not force Defendant to agree to the
deposition. Plaintiff should make whatever arrangements are necessary to
ensure Dr. Thompson’s presence at trial.

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III.

ADDITIONAL JURY INSTRUCTION
Plaintiff requests that the Court give a limiting instruction regarding the

disability benefits both during trial when the evidence is tendered and at the
conclusion of the case. To the extent this request is a motion, the Court grants it.
The Court intends to instruct the jury at both points of the trial that the evidence is
only to be considered for the limited purposes of malingering and failure to
mitigate.
IV.

PLAINTIFF’S EXPERT’S REVISED ECONOMIST REPORT

Plaintiff seeks permission to replace Joint Exhibit 13 with an updated
report from Dr. Thompson.1 This motion is granted. Defendant can crossexamine Dr. Thompson on any differences between the reports if appropriate.
SO ORDERED, this the 4th day of February, 2013.
s/ Hugh Lawson
HUGH LAWSON, SENIOR JUDGE
mbh

1

The motion refers to Joint Exhibit 13, but the Court does not have a Joint Exhibit 13 in
its document notebook. Joint Exhibit 10 is Dr. Thompson’s economic analysis of the
present value of Plaintiff’s fringe benefits, and Joint Exhibit 11 is Dr. Thompson’s
economic analysis of the present value of Plaintiff’s future earnings. There is no Joint
Exhibit 12. The Court assumes Plaintiff seeks to update either Joint Exhibit 10 or Joint
Exhibit 11, or both. In any event, Plaintiff should be prepared to revise the Court’s
exhibit notebooks prior to the start of the trial to add the updated report.
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