JENKINSON et al v. NORFOLK SOUTHERN RAILWAY COMPANY

Filing 115

ENTRY ON MOTIONS IN LIMINE - For the foregoing reasons, Plaintiffs' Motion in Limine (Filing No. 95 ) is GRANTED in part and DENIED in part, and Norfolk's Motions in Limine (Filing No. 98 ) are GRANTED in part and DENIED in part. An or der in limine is not a final, appealable order. During the course of the trial, if the parties believe that evidence being offered is inadmissible or irrelevant, counsel may approach the bench and request a hearing outside the presence of the jury. (See Order.) Signed by Judge Tanya Walton Pratt on 4/17/2017. (JLS) Modified on 4/17/2017 (JLS).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
RUTH ANN JENKINSON and JOE JENKINSON,
Plaintiffs,
v.
NORFOLK SOUTHERN RAILWAY COMPANY
Defendant.

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ENTRY ON MOTIONS IN LIMINE
This matter is before the Court on Plaintiffs Ruth Ann Jenkinson’s (“Mrs. Jenkinson”) and
Joe Jenkinson’s (“Mr. Jenkinson”) (collectively, “Plaintiffs”) Motion in Limine (Filing No. 95),
and Defendant Norfolk Southern Railway Company’s (“Norfolk”) Motions in Limine (Filing No.
98), to exclude certain evidence and testimony at trial. For the following reasons, Plaintiffs’
Motion in Limine is granted in part and denied in part, and Norfolk’s Motions in Limine are
granted in part and denied in part.
I. BACKGROUND
Mrs. Jenkinson is an Indiana resident who previously worked at Community Hospital
Anderson. On October 21, 2013, at approximately 11:00 p.m., Mrs. Jenkinson drove her normal
route home from work—northbound on County Rd. 100W in Lafayette Township, Madison
County, Indiana. At the time that Mrs. Jenkinson was driving home, a Norfolk freight train was
stopped on a railroad grade crossing intersection at Madison Avenue (“the Crossing”). Norfolk’s
crew members, Andrew J. Bragg and Thomas E. Abrell, parked the train at the Crossing in order
to conduct a mandatory air brake test. At approximately 11:30 p.m., Mrs. Jenkinson approached

the Crossing and, because it was quiet and completely dark, Mrs. Jenkinson struck the side of a
non-reflectorized Norfolk rail car.
Following summary judgment, the issues remaining for trial are: 1) whether federal funds
were used to install crossbuck signs at the Crossing; 2) whether Norfolk acted negligently when
failing to train its crew members on Rule 123 of Norfolk’s operating rules; and 3) whether Norfolk
acted negligently in conducting the brake test at the Crossing, rather than the Rydman & Fox bean
facility (Filing No. 104.)
In their Motion in Limine, Plaintiffs seek to prohibit Norfolk from introducing or eliciting
evidence regarding thirty-five topics and Norfolk asks the Court to exclude evidence that falls
within twelve specific categories.
II.

LEGAL STANDARD

“[J]udges have broad discretion in ruling on evidentiary questions during trial or before
on motions in limine.” Jenkins v. Chrysler Motors Corp., 316 F.3d 663, 664 (7th Cir. 2002). The
court excludes evidence on a motion in limine only if the evidence clearly is not admissible for
any purpose. See Hawthorne Partners v. AT&T Technologies, Inc., 831 F. Supp. 1398, 1400 (N.D.
Ill. 1993). Unless evidence meets this exacting standard, evidentiary rulings must be deferred until
trial so questions of foundation, relevancy, and prejudice may be resolved in context. Id. at 1400–
01. Moreover, denial of a motion in limine does not necessarily mean that all evidence
contemplated by the motion is admissible; rather, it only means that, at the pretrial stage, the court
is unable to determine whether the evidence should be excluded. Id. at 1401.
III.

DISCUSSION

The parties’ respective requests for orders in limine to prohibit the introduction of certain
testimony and evidence at trial are addressed below.

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A.

Plaintiffs’ Motion in Limine (Filing No. 95).
Plaintiffs request an order in limine on thirty-five topics. Norfolk filed a Response on April

12, 2017, opposing only fifteen of Plaintiffs’ thirty-five Motions. (Filing No. 111.) The Court
will discuss each request in turn.
1.

Any reference to Plaintiffs’ Motion in Limine.

Plaintiffs’ unopposed request to prohibit any reference to its Motion in Limine in the
presence of the jury, because such reference would be irrelevant and unfairly prejudicial, is
GRANTED.
2.

Any reference to benefits from a collateral source.

Plaintiffs ask the Court to prohibit any reference to Plaintiffs’ entitlement to any kind of
benefits from a collateral source, based on Indiana Code § 34-4-36-2. The Court notes that Ind.
Code § 34-4-36-2 has been repealed and replaced with Ind. Code § 34-44-1-2, effective March 12,
2010. Section 34-44-1-2 explains:
[i]n a personal injury or wrongful death action, the court shall allow the admission
into evidence of …proof of collateral source payments other than: (A) payments of
life insurance or other death benefits; (B) insurance benefits that the plaintiff or
members of the plaintiff's family have paid for directly; or (C) payments made by:
(i) the state or the United States; or (ii) any agency, instrumentality, or subdivision
of the state or the United States…that have been made before trial to a plaintiff as
compensation for the loss or injury for which the action is brought.
Ind. Code Ann. § 34-44-1-2. Plaintiffs’ unopposed request to exclude any reference to benefits
from a collateral source is GRANTED.
3.

Any reference to Norfolk being personally liable for damages.

Plaintiffs’ unopposed request to prohibit any reference to Norfolk being personally liable
to pay any judgment rendered in this case, is GRANTED.

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4.

Any reference to photographs, articles, or demonstrative video tapes without
tendering such exhibits to the Court and Plaintiffs’ counsel outside the
presence of the jury.

Plaintiffs ask the Court to exclude any photographs, articles, or demonstrative video tapes
unless Norfolk tenders such exhibits to the Court and Plaintiffs’ counsel outside the presence of
the jury. The parties should have already disclosed all exhibits according to the Case Management
Plan and pre-trial orders. In addition, the parties are required to submit exhibit binders and other
exchanges such that all photographs, articles, or demonstrative video tapes will be disclosed prior
to trial. The Court DENIES Plaintiffs’ request for additional disclosures because Plaintiffs have
presented no evidentiary basis for such a requirement.
5.

Any reference to Plaintiffs’ prior claims for personal injury, workers’
compensation, or other benefits.

Plaintiffs’ unopposed request to prohibit any reference to prior claims made by Plaintiffs
for personal injury, workers’ compensation, or medical benefits of any kind, because such
reference would be irrelevant and unfairly prejudicial, is GRANTED.
6.

Any reference to pre-judgment interest.

Plaintiffs’ unopposed request to prohibit any reference to pre-judgment interest that will
be added to any actual damages awarded in this case is GRANTED.
7.

Any reference to Plaintiffs dismissing previously alleged claims against
previously named defendants, including The Andersons, Inc.

Plaintiffs rely on Rules 401, 402 and 403 when requesting the Court to prohibit any
reference to previously dismissed claims against previously named defendants, including The
Andersons, Inc. In response, Norfolk notes that Plaintiffs dismissed The Andersons, Inc. after
determining that a “reflectorization” claim is preempted by federal law, and it does not intend to

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offer such evidence unless Plaintiffs open the door. Accordingly, Plaintiffs’ Motion in Limine is
GRANTED.
8.

Any reference to Plaintiffs’ jury consultant.

Plaintiffs’ unopposed request to prohibit any reference to Plaintiffs hiring of a jury
consultant is GRANTED.
9.

Any testimony from Carl Sanders or any other expert witness who was not
disclosed during discovery.

Plaintiffs ask the Court to exclude any expert witness who was not disclosed during
discovery, specifically, Carl Sanders, because Norfolk failed to produce Sanders for deposition.
In response, Norfolk argues that Plaintiffs were aware of Sanders and could have subpoenaed
Sanders at any time after he filed his Declaration on September 16, 2016.
The Court is unable to determine from Plaintiffs’ Motion in Limine and Norfolk’s
Response, whether there are grounds for excluding Sanders. The parties should be prepared to
discuss this issue at the final pretrial conference. For this reason, the Court takes this issue of
Plaintiffs’ Motion in Limine under advisement.
10.

Any testimony from fact witnesses who were not disclosed during discovery.

Plaintiffs’ unopposed request to prohibit Norfolk from calling any fact witnesses who were
not disclosed during the course of discovery is GRANTED. This motion applies to both parties.
11.

Any testimony that Norfolk did not have a responsibility or obligation to warn
motorists of an extra-hazardous crossing.

Plaintiffs ask the Court to prohibit testimony that Norfolk did not have a responsibility to
warn motorists of an extra-hazardous crossing. The Court first notes that it concluded as a matter
of law that the Federal Railroad Safety Act (“the Act”) preempts a plaintiff from asserting state
law tort claims regarding the inadequacy of warning signs and devices where federal funds were

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used to install the devices. See CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 671 (1993) (noting
the Act preempts state tort law claims against a railroad, alleging that warning devices installed
with federal funds are inadequate); Norfolk S. Ry. Co. v. Shanklin, 529 U.S. 344, 358 (2000). The
Court also concluded that a material issue of fact remains regarding whether federal funds were
used to install crossbuck signs at the Crossing. Accordingly, the Court DENIES Plaintiffs’ Motion
in Limine regarding this evidence.
The Court notes that Plaintiffs’ desire, however, can be advanced through a jury
instruction. For example, the jury can be instructed that if they find federal funds were not used
to install crossbuck signs at the Crossing, then Norfolk had the obligation to warn motorists of an
extra-hazardous crossing.
12.

Any testimony that Norfolk had no duty to evaluate and determine the
adequacy of the warning devices at the Crossing.

Plaintiffs ask the Court to prohibit testimony that Norfolk did not have a duty to evaluate
and determine the adequacy of the warning devices at the Crossing. The Court again notes that a
material issue of fact remains regarding whether federal funds were used to install crossbuck signs
at the Crossing and, if so, the Act preempts Plaintiffs from asserting state law tort claims against
Norfolk regarding the inadequacy of warning signs and devices. See Easterwood, 507 U.S. at 671
(noting the Act preempts state tort law claims against a railroad, alleging that warning devices
installed with federal funds are inadequate); Shanklin, 529 U.S. at 358. Because a material issue
of fact remains regarding whether federal funds were used to install crossbuck signs at the
Crossing, the Court DENIES Plaintiffs’ Motion in Limine regarding this evidence. Again,
Plaintiffs’ desire can be advanced through an instruction to the jury.

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13.

Any testimony that Norfolk had no duty to maintain or install adequate
warning devices.

Plaintiffs ask the Court to prohibit testimony that Norfolk did not have a duty to maintain
and install adequate warning devices at the Crossing. For the reasons listed above, the Court
DENIES Plaintiffs’ Motion in Limine regarding this evidence.
14.

Any testimony that it is the Government’s duty to maintain and install
adequate warning devices.

Plaintiffs ask the Court to prohibit testimony that it is the Government’s duty to maintain
and install adequate warning devices at the Crossing. The Court DENIES Plaintiffs’ Motion in
Limine regarding the duty because a material issue of fact remains regarding whether federal funds
were used to install crossbuck signs at the Crossing. See Easterwood, 507 U.S. at 671; Shanklin,
529 U.S. at 358.
15.

Any testimony that it is the Government’s duty to evaluate and determine
whether warning devices should be upgraded or other safety measures should
be implemented.

Plaintiffs ask the Court to prohibit testimony that it is the Government’s duty to evaluate
and determine the adequacy of the warning devices at the Crossing. For the reasons stated above,
the Court again DENIES Plaintiffs’ Motion in Limine regarding this evidence.
16.

Any testimony that Norfolk is not permitted to install flashing lights, gates or
street lights at the Crossing.

Plaintiffs seek to prohibit testimony that Norfolk is not permitted to install flashing lights,
gates or street lights at the Crossing. In response, Norfolk contends that it cannot unilaterally
install flashing lights and gates without State approval and opposes Plaintiffs’ Motion to the extent
that Plaintiffs seek to bar such testimony. Accordingly, the Court DENIES Plaintiffs’ Motion in
Limine to the extent that Plaintiffs seek to bar evidence that State approval is required before
installing flashing lights and gates.
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17.

Any testimony that street lights are “warning devices” subject to federal
preemption.

Plaintiffs ask the Court to prohibit testimony that street lights are “warning devices” subject
to federal preemption, because there is no basis in law or fact. In response, Norfolk argues that
under the Act, “passive warning devices means those types of traffic control devices, including
signs, markings and other devices, located at or in advance of grade crossings to indicate the
presence of a crossing but which do not change aspect upon the approach or presence of a train.”
See 23 C.F.R. § 646.204 (emphasis added). Norfolk contends that the purpose of street lights
would be to illuminate a crossing in order to indicate the presence of a train. Neither party has
presented evidence specifically stating whether street lights are indeed “warning devices” under
the Act. Without such evidence, the Court cannot determine the admissibility of this evidence.
Accordingly, the Court DENIES Plaintiffs’ request for a motion in limine.
18.

Any testimony that the State of Indiana never determined whether the
Crossing was extra-hazardous.

Plaintiffs’ unopposed motion to prohibit testimony that Indiana never determined whether
the Crossing was extra-hazardous is GRANTED.
19.

Any use of “Operation Lifesavers”.

Plaintiffs’ unopposed motion to prohibit any reference to or use of “Operation Lifesavers,”
which Plaintiffs describe as a routine educational media blitz to educate the citizens prior to or
during trial is GRANTED.
20.

Any attempt to tamper with the jury pool by using advertisements to suggest
drivers are responsible for crossing collisions.

Plaintiffs’ unopposed motion to prohibit any attempt to tamper with the jury pool by using
advertisements that suggest drivers are responsible for crossing collisions is GRANTED.

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21.

Any reference to charges or citations issued by police for past collisions at the
Crossing.

Plaintiffs’ unopposed motion to prohibit any reference to charges or citations issued by
police officers as a result of past collisions at the Crossing is GRANTED.
22.

Any evidence or testimony lacking personal knowledge.

Plaintiffs ask the Court to prohibit testimony from any witness that lacks personal
knowledge, except the parties’ designated corporate representative. Plaintiffs contend that such
testimony would confuse and mislead the jury, as well as unduly prejudice Plaintiffs. While
speculative testimony will not be allowed during trial, and the parties should not attempt to elicit
such testimony, the Court declines at this stage of the litigation to place a blanket prohibition on a
broad category of testimony without the context of specific questions actually being asked during
trial. For this reason, the Court DENIES this section of Plaintiffs’ Motion in Limine.
23.

Any reference to Plaintiffs’ failure to call a witness to testify.

Plaintiffs seek to prohibit any reference to Plaintiffs failing to call a witness to testify that
is equally available to both parties. Norfolk does not oppose this request in limine. Accordingly,
the Court GRANTS Plaintiffs’ Motion in Limine regarding this evidence.
24.

Any testimony from police officers regarding the cause of the collision.

Plaintiffs’ unopposed motion to exclude testimony from police officers regarding the cause
or contributing cause of the collision is GRANTED.
25.

Any reference to the date Plaintiffs hired lawyers in this matter.

Plaintiffs’ unopposed motion to prohibit any reference to the date that Plaintiffs hired an
attorney in this matter is GRANTED.

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26.

Any reference to a verdict in favor of Plaintiffs being tax-free.

Plaintiffs’ unopposed motion to prohibit any reference to the fact that some or all of any
verdict rendered in favor of Plaintiffs will be tax free is GRANTED.
27.

Any suggestion that Plaintiffs bear the sole burden in this case.

Plaintiffs’ unopposed motion to prohibit any suggestion that Plaintiffs bear the sole burden
in this case because such suggestion would be a misstatement of the law is GRANTED.
28.

Any reference to crossbuck signs having a similar effect as “yield” signs.

Plaintiffs rely on Ind. Code § 9-21-8-39 when requesting the Court to exclude any
testimony or suggestion that crossbuck signs have a similar effect as “yield” signs or that a motorist
must stop and yield to trains at grade crossings. Section 9-21-8-39 explains:
Whenever a person who drives a vehicle approaches a railroad grade crossing, the
person shall stop within fifty (50) feet but not less than fifteen (15) feet from the
nearest track of the railroad and may not proceed until the person can do so safely
under the following circumstances:
…
(4)When an approaching train or other on-track equipment is plainly visible
and is in hazardous proximity to the crossing.
Ind. Code § 9-21-8-39 (emphasis added).
The Court concludes that Plaintiffs’ reliance on § 9-21-8-39 is misplaced because, contrary
to Plaintiffs’ argument, the statute supports the contention that—similar to a yield sign—motorists
must stop and yield to a train or other plainly visible on-track equipment within proximity to the
Crossing. Because no other evidentiary support has been provided for excluding such reference,
the Court DENIES Plaintiffs’ request.
29.

Any layperson testimony regarding the legal duty to drive at all times with
high beams.

Plaintiffs argue that the Court should exclude any lay testimony regarding the legal duties
of a motorist, including the duty to drive at all times with high beams, because such testimony is
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improper pursuant to Rules 602, 701, and 702. The Court concludes, and Norfolk does not dispute,
that lay witness testimony regarding the legal duties of a motorist should be excluded at trial.
Accordingly, the Court GRANTS Plaintiffs’ Motion in Limine regarding this evidence.
30.

Any reference to evidence that was not identified to Plaintiffs during
discovery.

Plaintiffs’ unopposed motion to exclude any reference to documents, materials, testimony,
exhibits or other evidence that should have been, but was not produced to Plaintiffs during
discovery, including any testimony or statements taken by railroad employees after the collision
is GRANTED.
31.

Any accusation that Plaintiffs’ expert witnesses, consultants or attorneys
trespassed on the railroad’s right-of-way.

Plaintiffs’ unopposed motion to prohibit any testimony that Plaintiffs’ expert witnesses,
consultants, and or attorneys “trespassed” on the railroad’s right-of-way, because such testimony
has no relevance to the issues before the Court, is GRANTED.
32.

Any reference to Mrs. Jenkinson’s prior use of alcohol or controlled
substances, or any suggestion that Mrs. Jenkinson was impaired at the time of
the collision.

Plaintiffs’ unopposed motion to prohibit testimony regarding Mrs. Jenkinson’s prior use of
alcohol or controlled substances, as well as any suggestion that Mrs. Jenkinson was intoxicated or
impaired at the time of the collision, is GRANTED.
33.

Any reference to Mrs. Jenkinson’s familiarity with the Crossing prior to the
collision.

Plaintiffs request the Court to prohibit any testimony that Mrs. Jenkinson was familiar with
the Crossing prior to the collision because such testimony would be speculative or would require
reliance on hearsay. While speculation or inadmissible hearsay will not be allowed during trial,
and the parties should not attempt to elicit such testimony, the Court declines at this stage of the
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litigation to prohibit this testimony without the context of specific questions actually being asked
during trial. Additionally, Norfolk presents evidence that Mrs. Jenkinson, herself, previously
testified that she was familiar with the Crossing prior to the collision. For these reasons, the Court
DENIES Plaintiffs’ Motion in Limine regarding this evidence.
34.

Any reference to Mrs. Jenkinson “hurrying” at the time of the collision.

Plaintiffs’ unopposed motion to exclude any reference that Mrs. Jenkinson was “hurrying”
at the time of the collision is GRANTED.
35.

Any testimony that a railroad has no duty under any circumstances to warn
the public of the presence of a train on a crossing.

Plaintiffs ask the Court to prohibit testimony that a railroad has no duty under any
circumstances to warn motorists and the public of the presence of a train on a crossing. Plaintiffs
rely on Central Indiana Ry. Co., when asserting that it is for a jury to determine whether the
Crossing was ultra-hazardous and to infer such knowledge to the railroad. See Cent. Indiana Ry.
Co. v. Anderson Banking Co., 252 Ind. 270, 275 (1969) (holding evidence that a railroad crossing
was not illuminated and that two buildings obstructed the view of the crossing is “sufficient to
allow the jury to determine that this crossing was dangerous to an extra-hazardous extent and to
infer this knowledge to the railroad”).
In response, Norfolk argues that the remedy for an “extra-hazardous” crossing may be to
install different or additional warning devices, however, “the issue of whether a grade crossing has
become ‘extra hazardous’ is irrelevant in determining a railroad’s civil liability where, as in the
instant case, warning devices have been installed with federal funds under a project approved by
the FHWA.” See Randall v. Norfolk S. Ry. Co., 800 N.E.2d 951, 956 (Ind. Ct. App. 2003).
As previously stated, because the Court found as a matter of law that a genuine issue of
material fact exists regarding whether federal funds were used to install crossbuck signs at the
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Crossing and therefore, a motion in limine is not appropriate. Instead, the jury can be appropriately
instructed that if they find that federal funds were not used to install crossbuck signs at the
Crossing, then a railroad has the obligation to warn motorists and the public of an extra-hazardous
crossing.
B.

Norfolk’s Motions in Limine (Filing No. 98).
Norfolk requests an order in limine on twelve topics. Plaintiffs filed a Response in

Opposition to Norfolk’s Motion in Limine on April 12, 2017, opposing only eight of Norfolk’s
twelve requests. (Filing No. 105.) The Court will discuss each request in turn.
1.

Any “Golden Rule” arguments.

Norfolk asks the Court to prohibit Plaintiffs and Plaintiffs’ counsel from asking the jury to
stand in Plaintiffs’ shoes—a practice known as the “Golden Rule” argument. “[A] ‘Golden Rule’
appeal in which the jury is asked to put itself in the defendant’s position is universally recognized
as improper because it encourages the jury to depart from the neutrality and to decide the case on
the basis of personal interest and bias rather than on the evidence.” United States v. Roman, 492
F.3d 803, 806 (7th Cir. 2007) (citation and quotation marks omitted); Spray-Rite Service Corp. v.
Monsanto Co., 684 F.2d 1226, 1246 (7th Cir. 1982) (Golden Rule remark is “clearly improper”).
The Court GRANTS the motion in limine and the parties are to refrain from asking the jury to
stand in either parties’ shoes.
2.

Any reference to Norfolk’s worth or relative wealth.

Norfolk’s unopposed motion to exclude any testimony or reference to Norfolk’s wealth or
financial resources is GRANTED. See Adams Labs., Inc. v. Jacobs Eng'g Co., 761 F.2d 1218,
1226 (7th Cir. 1985) (holding reference to the comparative size and financial wealth of the parties
was improper). “Courts have held that appealing to the sympathy of jurors through references to

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the relative wealth of the defendants in contrast to the relative poverty of the plaintiffs is improper
and may be cause for reversal. If the wealth and size of a corporation are not at issue, counsel is
bound to refrain from making reference to such size and wealth, or bear the risk of an unfavorable
appellate reception.” Id. (quoting Draper v. Airco, Inc., 580 F.2d 91 (3d Cir.1978).
3.

Any reference to Norfolk’s objections to Plaintiffs’ discovery requests.

Norfolk’s unopposed motion to exclude testimony that Norfolk objects to some of
Plaintiffs’ discovery request because such testimony is irrelevant to the issues remaining for the
Court is GRANTED.
4.

Any testimony that the Crossing could have been made “safer”.

Norfolk asks the Court to exclude testimony that the Crossing could have been made safer
or improved, because such testimony is irrelevant and likely to mislead or confuse the jury. See
Stillman v. Norfolk & W. Ry. Co., 811 F.2d 834, 838 (4th Cir. 1987) (holding the “district court
acted properly in sustaining the Railroad’s objection to [Plaintiff’s] testimony concerning a safer,
alternative way to install gears in railroad cars” because “the question the jury had to decide was
whether the Railroad … exercised reasonable care for the safety of [Plaintiff], not whether the
Railroad could have employed a safer method for installing gears”).
In response, Plaintiffs contend that if a jury reaches the conclusion that the Crossing was
extra-hazardous then the jury will be asked to determine if Norfolk used reasonable care. As
previously stated, because the Court found as a matter of law that a genuine issue of material fact
exists regarding whether federal funds were used to install crossbuck signs at the Crossing,
Norfolk’s Motion in Limine regarding this evidence is DENIED. See Easterwood, 507 U.S. at
671 (noting the Act preempts state tort law claims against a railroad, alleging that warning devices
installed with federal funds are inadequate); Shanklin, 529 U.S. at 358. Again, the jury can be

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instructed that if they find federal funds were used to install crossbuck signs at the Crossing, then
a railroad does not have the obligation to improve or make the Crossing safer.
5.

Any lay witness testimony regarding the “dangerousness” of trains occupying
the Crossing.

Norfolk asks the Court to exclude any lay opinions that the Crossing was dangerous
because such evidence is irrelevant and will not assist the jury in determining whether a motorist
exercising due care could safely travel over the Crossing. Norfolk also points to Rule 402 and 403
when arguing that such testimony is prejudicial and would force the jury to conclude that Norfolk
should be held liable for allowing a “dangerous” crossing to exist.
The Court notes that one of the issues remaining for trial is whether federal funds were
used to install crossbuck signs at the Crossing and, if so, whether Norfolk acted with negligence
when failing to provide additional warnings and when parking the train across the Crossing—
causing it to be ultra-hazardous. Laypersons may testify to their personal observations.
Accordingly, the Court DENIES Norfolk’s request to prohibit lay testimony references to the
Crossing being “dangerous.”
6.

Any reference to prior, unrelated accidents.

Norfolk asks the Court to exclude any reference to prior, unrelated accidents. Over the
course of approximately thirty-one years, six accidents occurred at the Crossing. Norfolk argues
that such evidence, as well as any other grade crossing accidents involving Norfolk and its crew is
irrelevant and too remote in time. In addition, Norfolk contends the prior accidents at the Crossing
are distinguishable from the accident in this case because in the prior accidents the trains were
traveling through the Crossing, rather than stationed at the Crossing.
Seventh Circuit “precedents recognize that other accidents are generally deemed
admissible both to prove the existence of a defect or danger in a location or a product and to show
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that the defendant had notice of the defect or danger, so long as the other accidents are
‘substantially similar’ to the accident at issue in the litigation.” Mihailovich v. Laatsch, 359 F.3d
892, 908 (7th Cir. 2004). In response, Plaintiffs contend that the six prior accidents at the Crossing
are substantially similar because: 1) motorists drove below or at the speed limit; 2) there were no
track signals; 3) there were no flashing light signals or automatic gates; 4) there were no street
lights; 5) a train obstructed the track; and 6) motorists collided with the side of Norfolk’s train.
The Court DENIES Norfolk’s request to exclude references to prior accidents at the
Crossing because, if federal funds were not used, such testimony is relevant to the issue of whether
Norfolk is negligent for failing to provide additional warnings at the Crossing.
7.

Any testimony that Norfolk left an “unreflectorized” railcar on the Crossing.

For the reasons explained in the section above concerning the “dangerousness” of trains on
the Crossing, the Court DENIES Norfolk’s motion to exclude testimony that Norfolk left an
“unreflectorized” railcar on the Crossing. If federal funds were not used, such testimony is relevant
to the issue of whether Norfolk is negligent for failing to provide additional warnings at the
Crossing.
8.

Any reference to Mrs. Jenkinson having or being treated for PTSD.

Norfolk asks the Court to exclude testimony alleging Mrs. Jenkinson suffers from PostTraumatic Stress Disorder (“PTSD”) because Plaintiffs failed to properly disclose Dr. Pat Savage,
Mrs. Jenkinson’s social worker, or any other witness who is competent to diagnose PTSD pursuant
to Rule 702. Norfolk also points to Plaintiffs’ medical expert, Dr. Robert Gregori’s, testimony
that it is less likely Mrs. Jenkinson suffers from PTSD.
In response, Plaintiffs argue that they disclosed Dr. Pat Savage in “Plaintiffs’ Supplemental
Disclosures” on March 22, 2016, well before the discovery deadline. If Dr. Pat Savage was

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properly disclosed, such testimony would be proper. In addition, the Court has found that Dr.
Gregori is qualified to testify regarding his medical opinions. For these reasons, the Court
DENIES Norfolk’s request to exclude reference to Mrs. Jenkinson having or being treated for
PTSD.
9.

Any testimony that Norfolk violated Indiana’s “Blocked Crossing” statute.

Norfolk seeks to exclude testimony that it violated Indiana’s “Blocked Crossing” statute.
The Court concludes, and Plaintiffs do not dispute, that any evidence regarding Norfolk violating
Indiana’s “Blocked Crossing” statute should be excluded at trial. Accordingly, Norfolk’s Motion
in Limine is GRANTED.
10.

Any testimony that the “sight distance” was obstructed in the four quadrants
of the Crossing.

Norfolk argues that the Court should exclude any testimony that the “sight distance” was
obstructed in the four quadrants of the Crossing because such testimony is irrelevant under Rule
402 and fails to assist the trier of fact in determining the issues that remain for trial pursuant to
Rules 701 and 702. See Bickley v. Norfolk & W. Ry. Co., 60 F. Supp. 2d 732, 736 (N.D. Ohio
1998) (stating the evidence regarding the obstructed view of other quadrants of a crossing,
“standing alone,” could not “lead a reasonable jury to find that the crossing was extra-hazardous”).
In response, Plaintiffs argue that the sight limitations at the Crossing are relevant to whether the
Crossing is ultra-hazardous. The Court declines at this stage of the litigation to prohibit this
testimony without the context of specific questions asked during trial. For this reason, the Court
DENIES this request in limine.

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11.

Any testimony that Norfolk requires workers to wear reflective vests and
employees to activate emergency flashers or disable Norfolk’s motor vehicles.

Norfolk seeks to exclude any testimony that it requires its roadway workers to wear
reflective vests and its employees with disabled vehicles to activate their emergency flashers
because such evidence is irrelevant under Rule 402 and fails to assist the trier of fact in determining
the issues remaining for trial pursuant to Rules 701 and 702. In response, Plaintiffs argue that such
evidence is relevant regarding Norfolk’s duty to warn motorists. The Court declines at this stage
of the litigation to prohibit this testimony without context to specific questions asked during trial.
For this reason, the Court DENIES this request in limine.
12.

Any testimony from Mr. Jenkinson regarding the hazards presented by the
Crossing or by stationary railcars.

Norfolk asks the Court to prohibit any testimony from Mr. Jenkinson regarding the hazards
presented by grade crossing or any opinions regarding the factors that lead to grade crossing
accidents. The Court concludes, and Plaintiffs do not dispute, that such evidence should be
excluded at trial. Accordingly, Norfolk’s Motion in Limine is GRANTED.
IV.

CONCLUSION

For the foregoing reasons, Plaintiffs’ Motion in Limine (Filing No. 95) is GRANTED in
part and DENIED in part, and Norfolk’s Motions in Limine (Filing No. 98) are GRANTED in
part and DENIED in part. An order in limine is not a final, appealable order. During the course
of the trial, if the parties believe that evidence being offered is inadmissible or irrelevant, counsel
may approach the bench and request a hearing outside the presence of the jury.
SO ORDERED.

Date: 4/17/2017

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DISTRIBUTION:
Jose M. Bautista
BAUTISTA LeROY LLC
[e-mail]
Steven L. Groves
GROVES POWERS LLC
[e-mail]
Richard D. Hailey
RAMEY & HAILEY
[e-mail]
Mark Robert Molter
STUART & BRANIGAN LLP
[e-mail]
David A. Locke
STUART & BRANIGIN LLP
[e-mail]
John C. Duffey
STUART & BRANIGIN LLP
[e-mail]

19