Abernathy v Eastern Illinois Railroad Company

Filing 21

OPINION: Plaintiff's Motion in Limine (d/e 13 ) is GRANTED IN PART and DENIED IN PART. The Court grants Motion in Limine Nos. 1, 2, 4, 5, 6, 7, 8, 10, 11, 12, and 13. The Court denies Motion in Limine Nos. 3, 15. The Court grants in part an d denies in part Motions in Limine Nos. 9 and 14. Defendant's Motion in Limine (d/e 15 ) is GRANTED IN PART and DENIED IN PART. Motion in Limine Nos. 1 and 4 are GRANTED. Motion in Limine Nos. 2 and 3 are DENIED. The Final Pretrial Conference remains set for January 5, 2018. The parties shall be prepared to discuss whether the trial should be bifurcated, which may resolve some of the issues raised herein. SEE WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 09/26/2017. (SKN, ilcd)

E-FILED

Friday, 29 September, 2017 08:23:33 AM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
MARVIN ABERNATHY,
Plaintiff,
v.
EASTERN ILLINOIS RAILROAD
COMPANY,
Defendant.

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No. 3:15-cv-3223

OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
This cause is before the Court on Plaintiff Marvin Abernathy’s
Motion in Limine (d/e 13) and Defendant Eastern Illinois Railroad
Company’s Motion in Limine (d/e 15). For the reasons that follow,
Plaintiff’s Motion is GRANTED IN PART and DENIED IN PART.
Defendant’s Motion is GRANTED IN PART and DENIED IN PART.
I.

LEGAL STANDARD REGARDING MOTIONS IN LIMINE
Motions in limine are disfavored, as courts prefer to resolve

questions of admissibility as they arise. Telewizja Polska USA, Inc.
v. Echostar Satellite Corp., No. 02 C 3293, 2005 WL 289967, at *1
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(N.D. Ill. 2005); Hawthorn Partners v. AT&T Techs., 831 F.Supp.
1398, 1400 (N.D. Ill. 1993). AOnly evidence that is clearly
inadmissible for any purpose should be excluded pursuant to a
motion in limine.@ Tzoumis v. Tempel Steel Co., 168 F. Supp. 2d
871, 873 (N.D. Ill. 2001). Denial of a motion in limine does not
mean that the evidence will be admitted at trial but only that the
court could not determine admissibility in advance of trial. United
States v. Connelly, 874 F.2d 412, 416 (7th Cir. 1989).
Rule 401 of the Federal Rules of Evidence defines Arelevant
evidence@ as:
evidence having any tendency to make the
existence of any fact that is of consequence to
the determination of the action more probable
or less probable than it would be without the
evidence.
Relevant evidence may, however be excluded if:
its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by
considerations of undue delay, waste of time,
or needless presentation of cumulative
evidence.
Fed. R. Evid. 403. AAny party that seeks to exclude evidence on
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relevancy grounds by way of a pretrial motion in limine faces an
exceptionally high obstacle.@ Brom v. Bozell, Jacobs, Kenyon &
Eckhardt, Inc., 867 F. Supp. 686, 695 -96 (N.D. Ill. 1994).
II.

THE CLAIMS IN THE LAWSUIT

Plaintiff filed suit under the Federal Employers’ Liability Act,
45 U.S.C. § 51 et seq. Plaintiff was employed by Defendant.
Compl. ¶ 2. On September 13, 2012, Plaintiff, as part of his duties
for Defendant, was on his way to repair track by replacing ties.
Compl. ¶ 8. Plaintiff alleges he was forced to use a backhoe to
transport needed ties and equipment because the tie handler—a
piece of equipment designed for the specific task being performed
by Plaintiff—was not operational, notwithstanding repeated
complaints by Plaintiff and other employees. Id. ¶ 9. As Plaintiff
transported the ties with the backhoe, the load shifted, and the ties
spilled from the backhoe onto Route 130. Id. ¶ 10. As Plaintiff and
a co-worker tried to clean up the spilled ties, Plaintiff suffered
injury to his back. Id. ¶¶ 11, 13. Plaintiff alleges that he suffered
injuries and damages resulting in whole or in part from Defendant’s
negligence as follows:
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(a)

Defendant failed to provide reasonably safe
conditions for work in that Defendant required
Plaintiff to use improper equipment to perform his
assigned tasks;

(b)

Defendant failed to provide reasonably safe
conditions for work and failed to provide safe
equipment in that Defendant failed to repair or
replace the Tie Handler even after being notified
about its defective condition;

(c)

Defendant failed to provide reasonably safe
conditions for work in requiring Plaintiff to
transport ties with improper equipment and with
inadequate help in the event of a problem such as
the one described above[.]

Compl. ¶ 12.
Defendant raised contributory negligence and set-off as
affirmative defenses. Answer (d/e 3).
III. THE FEDERAL EMPLOYERS LIABILITY ACT
The FELA provides a federal tort remedy for railroad employees
injured on the job. Williams v. Nat’l R.R. Passenger Corp., 161 F.3d
1059, 1061 (7th Cir. 1998). Under the FELA, a railroad has a duty
to provide is employees with a safe workplace. Holbrook v. Norfolk
S. Ry. Co., 414 F.3d 739, 741 (7th Cir. 2005).
A plaintiff in an FELA case must prove all of the elements of
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negligence against the employer—foreseeability, duty, breach, and
causation. Crompton v. BNSF Ry. Co., 745 F.3d 292, 296 (7th Cir.
2014). However, Congress intended the FELA to provide broad
remedial measures for railroad employees. Consequently, an
“injured railroad employee can recover under the FELA as long as
the employer's negligence “played any part, even the slightest, in
producing the injury ... for which damages are sought.” Kulavic v.
Chi. & Ill. Midland Ry. Co., 1 F.3d 507, 512 (7th Cir. 1993) (quoting
Rogers v. Mo. Pac. R.R., 352 U.S. 500, 506 (1957)). Moreover, the
jury has “broad discretion to engage in common sense inferences
regarding issues of causation and fault.” Harbin v. Burlington N.
R.R. Co., 921 F.2d 129, 132 (7th Cir. 1990).
IV. THE MOTIONS IN LIMINE
A.

Defendant=s Motion in Limine
1.

Testimony or Reference That Defendant is Owned in
Whole or in Part by the Archer Daniels Midland Company

Defendant asserts that it is a distinct corporate entity and that
evidence of its ownership is not a fact in consequence in
determining Plaintiff’s claims. Defendant argues that evidence that
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Archer Daniels Midland Company (ADM) is the owner of the shares
of Defendant is an attempt by Plaintiff to inject the wealth of
another corporation, which bears no relevance to the issues
presented and is unfairly prejudicial to Defendant.
Plaintiff does not anticipate a need to refer to ADM so long as
Everett Fletcher, the President of Defendant, can testify that he was
in charge of Defendant’s operations without referring to ADM.
Therefore, in light of Plaintiff’s concession, Motion in Limine No. 1 is
GRANTED.
2.

Any Testimony, Opinion, or Reference to a Tie
Crane/Tie Handler

Defendant states that the evidence in this case shows that
Defendant made available to Plaintiff certain equipment for the
loading and transport of ties to the job site. That equipment
included a truck, a forklift, and an end loader. No tie crane/tie
handler was made available to Plaintiff. According to Defendant,
the issue in this case is whether the equipment provided to Plaintiff
was reasonably safe to enable Plaintiff to perform the assigned job
task. Defendant argues that the non-availability of a tie crane/tie
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hander is not relevant and will lead to issue confusion. In addition,
Plaintiff did not offer or disclose expert testimony on the alternative
“tie crane safer method” and, therefore, there is no foundation for
the testimony by Plaintiff.
Plaintiff responds that evidence of a safer method—use of a tie
crane/tie handler—is relevant to show that the method selected—
the backhoe—was not reasonably safe. Plaintiff also asserts that
expert testimony is not required where the theory of liability can be
understood by a layperson.
Plaintiff testified in his deposition that Defendant owned a tie
crane/tie handler but it was inoperable for four or five years prior to
the accident. Pl. Dep. at 28 (d/e 19-1). Plaintiff testified that in the
four or five years prior to the occurrence, Defendant hired
contractors to do big projects and the contractors would bring in a
tie handler. Id. Plaintiff’s deposition testimony also suggested that
Plaintiff had previously requested a tie crane. See id. at 84
(Plaintiff’s testimony referring to a letter Plaintiff wrote to Richard
Probus, whose position with the company is not provided, which
stated that “he had heard me request the tools,” which included a
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tie crane, and that “[h]e definitely heard about the tie crane”); see
also General Manager Timothy Allen Dep. at 26 (d/e 19-2)
(testifying that Plaintiff might have requested that the tie crane be
repaired or replaced “a time or two over the years”).
Proof of a safer alternative is not necessarily proof of
negligence. Taylor v. Ill. Central R Co., 8 F.3d 584, 585 (7th Cir.
1993) (finding the district court did not err by excluding expert
testimony about safer alternatives, noting that the evidence would
have been superfluous to the evidence already presented). A
defendant can provide a safe workplace even if safer workplace
alternatives exist. Id.
However, evidence of safer alternatives can be relevant
depending on the circumstances. Id. at 586. For instance,
evidence of an alternative method may be relevant if there is a
dispute whether the employer required the use of a particular
method. In that case, evidence of an alternative method is relevant
to whether the method used was reasonable. See Stone v. N.Y., C.,
& St. L. R. Co., 344 U.S. 407, 409 (1953 (“Whether the straw boss
in light of the risks should have used another or different method to
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remove the tie or failing to do so was culpable is the issue.”); see
also Williams v. Ne. Ill. Reg’l Commuter R.R. Corp., No. 00 C 2250,
2002 WL 1433724, at *9 (N.D. Ill. June 28, 2002) (testimony of
safer alternatives is properly excluded only when it is determined
that the railroad exercised reasonable care). A jury can infer
negligence from an employer’s failure to employ a different method
or take additional precautions to ensure its employee’s safety.
Harbin, 921 F.2d at 132 (finding that “a jury could reasonably
conclude that the Railroad’s failure to employ a different boiler
cleaning method or take additional precautions to ensure the safety
of its employees was negligent” where there was evidence that the
plaintiff was told what process to use, the process caused so much
soot that the mouth guards supplied by the defendant turned black,
employees made repeated complaints of inadequate ventilation, and
the defendant did not rectify the problem),
Here, Plaintiff claims that Defendant required that Plaintiff use
the backhoe where a tie handler was the appropriate equipment for
the job. Plaintiff also claims that he complained about the lack of a
tie handler. Therefore, the Court finds that evidence of the tie
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handler is likely admissible.
Moreover, expert testimony is unnecessary on the issue. The
FELA statute “vests the jury with broad discretion to engage in
common sense inference regarding issues of causation and fault.”
Id. (“A jury is qualified to infer a general risk of harm to employees
forced to labor without ventilation in a sooty environment”); Lynch
v. Ne. Reg’l Commuter R.R. Corp., 700 F.3d 906, 915 (7th Cir.
2012) (stating that the Harbin court held that “a jury could
reasonably conclude that the failure to implement a different
cleaning method such as a vacuum rather than air pressure holes,
and the failure to take other precautions such as more effective face
masks, was negligent” and that expert testimony was not required
regarding the practicality of such measures). If Plaintiff can lay a
proper foundation for his testimony that a tie handler is the
appropriate equipment for the task and not the backhoe, a jury
could infer a risk of harm to employees when Defendant allegedly
required that Plaintiff use the backhoe and failed to provide a tie
handler for the task.
Therefore, Defendant’s Motion in Limine No. 2 is DENIED
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without prejudice to objecting to such evidence at trial. See
Connelly, 874 F.2d at 416 (noting that denial of a motion in limine
does not mean that the evidence will be admitted at trial but only
that the court could not determine admissibility in advance of trial).
3.

Evidence, Testimony, or Argument Suggesting that
Defendant Subsequently Purchased a Tie Crane/Tie
Handler

Defendant seeks to exclude evidence that Defendant
subsequently purchased a tie crane/tie handler. Defendant expects
Plaintiff to present evidence that, subsequent to Plaintiff’s
termination and more than one-year post-occurrence, Defendant
purchased a tie crane/tie handler for purposes of executing a largescale project. Defendant argues that the admission of postoccurrence action is not admissible to support an inference of
negligence.
Evidence of subsequent remedial measures is generally not
admissible. Federal Rule of Evidence 407 provides:
When measures are taken that would have made an
earlier injury or harm less likely to occur, evidence of the
subsequent measures is not admissible to prove:
• negligence;
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• culpable conduct;
• a defect in a product or its design; or
• a need for a warning or instruction.
But the court may admit this evidence for another
purpose, such as impeachment or--if disputed--proving
ownership, control, or the feasibility of precautionary
measures.
Fed. R. Evid. 407; Wetherill v. Univ. of Chi., 565 F. Supp. 1553,
1557 (N.D. Ill. 1983) (“Feasibility of remedial measures . . . denotes
whether it would have been practical to have employed them
earlier.”).
Plaintiff responds that the evidence is relevant to feasibility
and to impeach Defendant’s contradictory explanations as to why it
was feasible for Defendant to purchase a replacement tie handler
after the incident but not before. Plaintiff points to the different
explanations from Timothy Allen, Defendant’s General Manager,
and Everett Fletcher, Defendant’s President, for why the tie handler
was not replaced before the accident and why it was replaced after
the accident. See Fletcher Dep. at 29-30 (testifying that the tie
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handler was probably not replaced before the accident because of
money); Allen Dep. at 25-26 (testifying that the tie hander was not
replaced before the accident because of fears Plaintiff would misuse
or abuse the tie handler and testifying that the tie handler was
replaced after the accident because Defendant had a job that
required its use); see Willis v. BNSF R.R. Co., No. 11-1208, 2013
WL 5491951 (C.D. Ill. Oct. 2, 2013) (denying motion in limine to bar
subsequent remedial measures where the plaintiff wanted to admit
evidence about the use of brake sticks to show that the method was
feasible at the time of the plaintiff’s injury and expert testimony was
not necessary); but see Edsall v. CSX Transp. Inc., No. 1:06-CV389, 2008 WL 244344, at *6 (N.D. Ind. Jan. 28, 2008) (where
feasibility was not controverted, and where there was no evidence
that the defendant planned to obtain a spike puller prior to the
incident, evidence that the defendant ordered a spike puller after
the incident was not admissible).
Because Plaintiff may be able to present evidence of
subsequent remedial measures for a purpose other than proving
negligence, Defendant’s Motion in Limine No. 3 is DENIED without
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prejudice to Defendant objecting to such evidence at trial. See
Connelly, 874 F.2d at 416 (noting that denial of a motion in limine
does not mean that the evidence will be admitted at trial but only
that the court could not determine admissibility in advance of trial).
If such testimony is allowed at trial, the Court will give the jury a
limiting instruction.
4.

Reference, Comment, Argument, or Testimony Stating or
Tending to Suggest that Plaintiff and Defendant
Negotiated a Settlement Agreement or that Defendant
Paid Any Sum of Money to Plaintiff

Defendant seeks to exclude any evidence that Defendant and
Plaintiff resolved, without the admission of liability, a Federal
Railroad Safety Act claim brought by Plaintiff against Defendant
before the United States Department of Labor. Plaintiff does not
oppose this motion. Therefore, Defendant’s Motion in Limine No. 4
is GRANTED.
B.

Plaintiff’s Motion in Limine
1.

Any Reference by Defendant to Any Collateral Source
Payments, Adjustments, or Other Assistance

Plaintiff moves to bar Defendant from making any reference to
any source of third-party or insurance payments, adjustments or
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write-downs, or any other financial assistance or services Plaintiff
may have received or could receive that were not directly provided
by Defendant. Defendant does not object to this motion to the
extent it limits the introduction of such evidence in the presence of
the jury. Defendant persists in its position that Defendant is
entitled to post-verdict set-off pursuant to 45 U.S.C. § 55. In light
of Defendant’s concession, Plaintiff’s Motion in Limine No. 1 is
GRANTED.
2.

Evidence or Argument Related to the Federal Railroad
Administration or Any Other Governmental Body

Plaintiff seeks to bar any evidence or argument that the
Federal Railroad Administration or any other government body has
enforcement jurisdiction over the workplace in question and/or over
methods and conditions of work; that the Federal Railroad
Administration or other government body has approved or failed to
take exception to the workplace in question or the methods and
conditions of work; or that Plaintiff’s claim in this case is preempted
in any manner or is otherwise improper.
Defendant asserts that the Motion is vague but states that
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Defendant does not intend to assert that there is any preemption of
Plaintiff’s claim. In addition, Defendant is not aware of any specific
regulation or ruling by the Federal Railroad Administration
regarding the availability of or use of available equipment for the
performance of Plaintiff’s job or Plaintiff’s work methods with
respect to the work at issue in the instant litigation. Subject to
those qualifications, and if Defendant understands the motion in
limine accurately, Defendant does not object to Plaintiff’s Motion in
Limine No. 2.
Subject to Defendant’s interpretation of Motion in Limine No.
2, the Court GRANTS Motion in Limine No. 2.
3.

Contributory Negligence

Plaintiff seeks to bar any evidence or argument that Plaintiff
was contributorily negligent in using the equipment furnished to
him by Defendant. Plaintiff argues that allowing such evidence or
argument would suggest that Defendant is not responsible for the
safety of the workplace, the safety of the tools and equipment it
provided, and/or the safety of the methods and conditions at work.
An employee’s contributory negligence does not bar relief
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under the FELA but damages are reduced in proportion to the
amount of negligence attributable to the employee. 45 U.S.C. § 53
(providing that an employee’s contributory negligence does not bar
recovery but reduces damages in proportion to the amount of
negligence attributable to the employee); Caillouette v. Baltimore &
Ohio Chi. Terminal R.R. Co., 705 F.2d 243, 246 (7th Cir. 1983). A
jury can find contributory negligence if the plaintiff takes actions
that “add additional dangers to an already dangerous situation.”
Gish v. CSX Transp. Inc., 922 F. 2d 989, 991 (7th Cir. 1989)
(finding that a jury could reasonably find contributory negligence
where the plaintiff’s actions added additional dangers, noting, in
part, that plaintiff could have used a car hook or a forklift to remove
the manhole instead of the pry bar); Allen Dep. at 35-36 (d/e 20-6).
(testifying that Plaintiff decided the equipment he needed for the job
and that Allen expected the maintenance crew to use the pickup
truck). If, in fact, Plaintiff had various equipment available to him
for the job and had the choice of what equipment to use, evidence
that he chose the backhoe could be relevant.
Because contributory negligence can reduce damages,
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Plaintiff’s Motion in Limine No. 3 is DENIED without prejudice to
Plaintiff objecting to such evidence at trial. See Connelly, 874 F.2d
at 416 (noting that denial of a motion in limine does not mean that
the evidence will be admitted at trial but only that the court could
not determine admissibility in advance of trial).
4.

Tort Reform

Plaintiff moves to bar any tort reform arguments. Defendant
does not object. Plaintiff’s Motion in Limine No. 4 is GRANTED.
5.

Offers of Settlement

Plaintiff moves to bar any reference concerning any offers of
settlement. Defendant does not object. Plaintiff’s Motion in Limine
No. 5 is GRANTED.
6.

Out-of-Court Statements by Counsel for Plaintiff

Plaintiff moves to bar any out-of-court statements by counsel
for Plaintiff. Defendant does not object. Plaintiff’s Motion in Limine
No. 6 is GRANTED.
7.

Evidence or Argument that Money Will Not Undo the
Injury or Damage

Plaintiff moves to bar any argument that money will not undo
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the injury or damage. Defendant does not object. Plaintiff’s Motion
in Limine No. 7 is GRANTED.
8.

Greed

Plaintiff moves to bar any argument or evidence of greed.
Defendant does not object. Plaintiff’s Motion in Limine No. 8 is
GRANTED
9.

Assumption of the Risk

Plaintiff moves to bar any evidence, argument, or suggestion
that Plaintiff had the option, or should have exercised the option, of
refusing to complete the task in the manner prescribed by
Defendant.
Defendant recognizes that assumption of the risk is not a
viable defense in an FELA case. Defendant asserts, however, that
evidence of alternatives available to Plaintiff regarding the means
and methods to perform the assigned work is not the equivalent of
an assumption of the risk. Defendant also argues that the Motion
in Limine presumes the existence of a disputed fact—that
Defendant proscribed the specific work method. Defendant argues
that there is no basis to adjudicate this preliminary fact upon which
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the motion is premised.
An “employee shall not be held to have assumed the risks of
his employment.” 45 U.S.C. § 54. The Court cannot determine,
prior to trial, the admissibility of the evidence Defendant may seek
to present at trial and whether that evidence would suggest that
Plaintiff assumed the risk. The parties dispute whether Defendant
required the specific work method or whether Plaintiff had safe
alternatives available to him, was aware of the risk, and ignored the
safe alternative. The latter could be admissible as contributory
negligence. Russell v. Nat’l R.R. Passenger Corp., 189 F.3d 590,
595 (7th Cir. 1999) (finding that the district court did not err in
refusing to give an instruction to the jury stating that assumption of
risk is not a defense where “[the defendant] did not argue that [the
plaintiff] assumed the risk of a job for which there were no safe
alternatives, but rather that she was aware of the risks, and ignored
a safe alternative,” which supported a contributory negligence
instruction); Edsall v. CSX Transp., Inc., No. 1:06-CV-389m 2008
WL 244344, at *4 (N.D. Ind. Jan. 28, 2008) (evidence that the
decision to use the claw bar was the plaintiff’s decision did not by
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itself implicate the doctrine of assumed risk).
Therefore, Plaintiff’s Motion in Limine No. 9 is GRANTED IN
PART and DENIED IN PART. While Defendant may not present
evidence or argue that Plaintiff assumed the risk, the Court will
have to determine at trial whether any specific evidence of
contributory negligence is admissible. Connelly, 874 F.2d at 416
(noting that denial of a motion in limine does not mean that the
evidence will be admitted at trial but only that the court could not
determine admissibility in advance of trial).
10.

Americans with Disabilities Act or Other Statute or
Regulation

Plaintiff moves to bar suggestions that a hypothetical employer
would have or would be required to provide accommodations to
Plaintiff pursuant to the Americans with Disabilities Act or any
other statute of regulation. Defendant does not object. Plaintiff’s
Motion in Limine No. 10 is GRANTED.
11.

Suggestions that Pain and Suffering or Other NonPecuniary Elements of Damage Can be Reduced to
Present Value

Plaintiff moves to bar any suggestion that pain and suffering
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or other non-pecuniary elements of damage can be reduced to
present value. Plaintiff notes that, while pecuniary damages should
be reduced to present value, intangible damages cannot be reduced
to present value under FELA.
Defendant does not object to the extent it is understood that
future economic damages are reduced to present value. With that
caveat, Plaintiff’s Motion in Limine No. 11 is GRANTED.
12.

Evidence or Argument that Plaintiff’s Injuries Were
Caused by Subsequent Medical Treatment

Plaintiff moves to bar any argument, testimony, or suggestions
that Plaintiff’s injuries were not caused by the subject incident but
by subsequent medical treatment of the injuries he sustained in the
incident.
Defendant does not object to the motion insofar as there is any
determination that an injury was sustained as a result of the
alleged negligence of the railroad in September 2012. Defendant
also states that Defendant is not asserting that there was
malpractice or professional error related to the care and treatment
of the lumbar degenerative changes and the annular tear at issue in
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this case.
Plaintiff’s Motion in Limine No. 12, which seeks to bar any
suggestion that damages should be reduced because they were
caused by medical treatment for his injuries, is GRANTED in light
of Defendant’s concession.
13/15. Past Bad Acts/Prior Discipline/Prior Employment
Incidents (No. 13) and Suggestions that Plaintiff Would
Have Been Terminated (No. 15).
Plaintiff moves to bar any examination, cross-examination,
other questioning, testimony, reference to, argument, or exhibits
pertaining to any pre-incident “bad acts,” discipline, or other
employment incidents (No. 13). Plaintiff also moves to bar any
evidence or argument suggesting Plaintiff would have been
terminated had he not been injured (No. 15).
Federal Rule of Evidence 404(b) bars evidence of other wrongs
or acts:
Evidence of a crime, wrong or other act is not admissible
to prove a person=s character in order to show that on a
particular occasion the person acted in accordance with
the character.
Rule 404 also contains certain exceptions. Evidence of other bad
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acts is admissible if admitted to show motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack
of accident. Fed. R. Evid. 404(b)(2). Evidence of a prior crime,
wrong, or act may be admitted when:
(1) the evidence is directed toward establishing
a matter in issue other than the defendant=s
propensity to commit the crime charged; (2)
the evidence shows that the other act is similar
enough and close enough in time to be
relevant to the matter in issue; (3) the evidence
is sufficient to support a jury finding that the
defendant committed the similar act; and (4)
the probative value of the evidence is not
outweighed by the danger of unfair prejudice.
Treece v. Hochstetler, 213 F.3d 360, 363 (7th Cir. 2000) (quoting
United States v. Asher, 178 F. 3d 486, 492 (7th Cir. 1999)).
Defendant argues that evidence regarding the termination is
admissible to (1) rebut Plaintiff’s claim related to future earnings
based upon his earnings with Defendant, and (2) impeach Plaintiff’s
claim that he sustained a workplace injury in September 2012.
Defendant expects to introduce evidence that Plaintiff had
disciplinary issues with his supervisor, which ultimately
contributed to his termination. Fletcher Dep. at 15-17 (describing
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2007 fighting incident, after which Plaintiff signed a document
stating if he was ever involved in another altercation with employees
or management, he would be terminated); id. at 16 (testifying about
November 2013 incident where Plaintiff told a supervisor to “F off”).
Defendant argues that a jury could infer from the disciplinary
and termination evidence a motive by Plaintiff to fabricate an injury
as a result of the accident. Defendant notes that Plaintiff did not
procure any medical treatment for the alleged injury for more than
a year following the alleged accident. In addition, Defendant asserts
that two admissions by Plaintiff in initial medical histories are
inconsistent with Plaintiff’s claim of an injury onset in September
2012 See Ex C (d/e 20-4) (medical record dated December 12, 2013
wherein Plaintiff complained of back pain and allegedly stated he
did not recall any specific injury); (medical record dated February
25, 2014 wherein Plaintiff complained of pain on his right side
beginning six months earlier).
Defendant also argues that, if Plaintiff seeks to rely upon his
earnings with Defendant for the purpose of supporting a future
diminished earning capacity claim, then the facts related to his
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disciplinary record and termination are admissible.
The Court will determine at trial whether evidence of Plaintiff’s
termination should be admitted as it will depend, in part, on what
damages Plaintiff seeks. If Plaintiff seeks lost wages for the period
subsequent to his discharge, then evidence of his discharge would
be relevant. See, e.g., Ferren v. Nat’l R.R. Passenger Corp., No. 00 C
2262, 2001 WL 1607586 at *1 (N.D. Ill. Dec. 12, 2001) (finding that
evidence of the plaintiff’s discharge is relevant if Plaintiff seeks lost
wage for the period subsequent to his discharge).
The Court will not allow evidence of the November 2007
incident because such evidence is not relevant. In addition, even if
the evidence were relevant, the Court would find that its relevance
is outweighed by its prejudice.
Evidence of the 2013 incident between Plaintiff and his
supervisor is not relevant. Defendant does not explain why the
2013 incident would be probative to whether Plaintiff fabricated the
injury from the accident. Moreover, even if the Court admits the
fact of Plaintiff’s termination for purposes of damages, the basis for
that termination is irrelevant. In addition, even if the 2013 incident
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were relevant, the Court would find that its relevance is outweighed
by its prejudice.
Therefore, Plaintiff’s Motion in Limine No. 13 is GRANTED.
Defendant shall not present evidence of the 2007 and 2013
disciplinary incidents. Plaintiff’s Motion in Limine No. 15 is
DENIED. The Court will determine at trial whether evidence of
Plaintiff’s termination is relevant to Plaintiff’s damages claim.
14.

Smoking, Prior or Other Medical Conditions, Family
Medical History

Plaintiff moves to bar reference to smoking, any of Plaintiff’s
prior or other medical conditions, and any reference to his family
medical history unless Defendant can show that it has disclosed
competent, expert medical testimony to a reasonable degree of
medical certainly that any of the foregoing have any relevance to the
conditions or pain Plaintiff has suffered and is seeking to recover in
this lawsuit and were the entire cause of Plaintiff’s injuries.
Plaintiff claims that the evidence should be excluded pursuant to
Federal Rule of Evidence 401, 402, and 403.
Defendant has no objection to the Motion insofar as it seeks to
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bar unrelated medical conditions. Defendant objects to the extent
that Plaintiff seeks to bar evidence of preexisting degenerative
changes and prior episodes of low back pain. Defendant argues
that preexisting health conditions are admissible because the
testimony could undermine Plaintiff’s claim of causation.
Defendant cites the deposition testimony of Plaintiff’s witness,
Dr. Thomas Lee. Plaintiff’s claimed injury is a L4-5 degenerative
disc with annular tears. Dr. Lee Dep. at 11 (d/e 20-2) (August
2016). Dr. Lee testified that Plaintiff’s annular tears could have
pre-existed the events reported to him of September 2012. Id. at 21
(d/e 20-2). Dr. Lee also testified that Plaintiff’s L4-5 degenerative
disc condition could have pre-existed the history of the workplace
accident. Dr. Lee Dep. at 12-13 (d/e 20-3) (July 2016). Dr. Lee
agreed that a person could have pain from a degenerative spine in
the absence of “traumatic insult.” Dr. Lee Dep. at 27 (August
2016). In addition, Plaintiff testified that that he has had a couple
of back strains over the years. Pl. Dep. at 38 (d/e 201). He also
testified that some of the work he performed post-accident
aggravated his back injury. Id. at at 60.
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On the one hand, a tortfeasor must take his victim as the
tortfeasor finds him. Willis v. BNSF Ry. Co. No. 11-1208-2013 WL
5491951, at *1 (C.D. Ill. Oct. 2, 2013) (referring to the eggshell skull
doctrine). The defendant is liable for any damages resulting from
its wrongful act even if the victim had a preexisting condition that
made the consequence of the wrongful act more severe. Id.
On the other hand, a tortfeasor cannot be held responsible for
damages the tortfeasor did not cause. Id. A torfeasor is liable for
the aggravation of a preexisting condition but only that part of the
plaintiff’s suffering that was activated or accelerated by the
torfeasor’s negligence. Id.

Therefore, “a plaintiff’s damage may be

reduced to the extent that his current injuries were the result of a
pre-existing condition as opposed to the railroad’s negligence.”
Kelham v. CSX Transp. Inc., No. 2:12-cv-317, 2015 WL 4525489, at
*1 (N.D. Ind. July 27, 2015), aff’d 840 F.3d 469 (7th Cir. 2016).
However, if there is no reasonable basis for apportionment, the
railroad is liable for the entire injury. Id.
Here, Defendant intends to present evidence of Plaintiff’s
preexisting condition to rebut causation, negate or reduce damages,
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or as impeachment. If Defendant can lay a proper foundation for
the evidence and present such evidence through Dr. Lee or another
expert, the evidence is relevant for those purposes. See Willis v.
BNSF Ry. Co., No. 11-1208, 2013 WL 5471889, at *2 (Oct. 2, 2013)
(giving as an example a plaintiff with a preexisting deteriorating
shoulder condition, and noting that, if the tortfeasor’s conduct
causes pain to the shoulder, the tortfeasor would be liable for the
pain and any acceleration of the condition but not liable for the
underlying condition); Hinkle v. Norfolk S. Ry. Co., No. 2:05-cv-574,
2007 WL 496365, at *2 (S.D. Ohio Feb. 12, 2007) (prior medical
condition was relevant on the issues of causation and damages
where the defendant asserted that the medical condition was
exclusively the result of the plaintiff’s preexisting medical
condition).
Finally, Plaintiff seeks to bar Defendant from presenting any
evidence of Plaintiff’s smoking. Defendant asserts that Dr. Lee
testified that it was reasonable to consider that a smoking history
had a relationship to spine degeneration in general. Defendant
claims the evidence is relevant to Plaintiff’s state of ill-being, the
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role of any injury to his alleged state of ill-being, and the reasonable
medical necessity for any surgical intervention as a result of the
alleged occurrence.
At his deposition, Dr. Lee testified that a patient who smokes
after back surgery has a decreased rate of success with the surgery.
Dr. Lee Dep. at 29 (August 2016) (also testifying that he advised
Plaintiff to refrain from smoking post-surgically and, to his
knowledge, Plaintiff was compliant). Dr. Lee also agreed that it was
a theory that smoking contributes to disc desiccation as one ages
but that such theory may not be generally accepted. Dr. Lee Dep.
at 14 (July 2016).
The Court finds that evidence of Plaintiff’s smoking could be
relevant to whether Plaintiff’s smoking had any effect on Plaintiff’s
recovery from back surgery or whether the surgical intervention was
successful. Therefore, Plaintiff’s Motion in Limine No. 14 is
GRANTED IN PART and DENIED IN PART. Evidence of unrelated
medical conditions is barred. Evidence of Plaintiff’s preexisting
degenerative changes, prior episodes of back pain, and history of
smoking may be admissible but will be determined at trial. See
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Connelly, 874 F.2d at 416 (noting that denial of a motion in limine
does not mean that the evidence will be admitted at trial but only
that the court could not determine admissibility in advance of trial).
V. CONCLUSION
For the reasons stated, Plaintiff’s Motion in Limine (d/e 13) is
GRANTED IN PART and DENIED IN PART. The Court grants
Motion in Limine Nos. 1, 2, 4, 5, 6, 7, 8, 10, 11, 12, and 13. The
Court denies Motion in Limine Nos. 3, 15. The Court grants in part
and denies in part Motions in Limine Nos. 9 and 14.
Defendant’s Motion in Limine (d/e 15) is GRANTED IN PART
and DENIED IN PART. Motion in Limine Nos. 1 and 4 are
GRANTED. Motion in Limine Nos. 2 and 3 are DENIED.
The Final Pretrial Conference remains set for January 5, 2018.
The parties shall be prepared to discuss whether the trial should be
bifurcated, which may resolve some of the issues raised herein.
ENTER: September 26, 2017
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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