Norfolk Southern Railway Company v. Tobergte et al

Filing 202

OPINION & ORDER: 1) Court shall reserve ruling on the parties' objections to exhibits and witnesses. The parties may make contemporaneous objections and the Court will resolve those objections with the benefit of the context of trial. 2) The parties' 138 , 139 , 140 , 141 , 142 , 152 and 171 Motions in Limine are GRANTED IN PART and DENIED IN PART. Signed by Judge Karen K. Caldwell on 02/23/2022. (MDC) cc: COR

Case: 5:18-cv-00207-KKC-MAS Doc #: 202 Filed: 02/23/22 Page: 1 of 12 - Page ID#:
3604

U NITED S TATES D ISTRICT C OURT
E ASTERN D ISTRICT OF K ENTUCKY
C ENTRAL D IVISION
L EXINGTON
Norfolk Southern Railway
Company,

Civil No. 5:18-207-KKC-MAS

Plaintiff,
v.

O PINION AND O RDER

Kevin Tobergte and Andy Hall,
Defendants.

** ** ** ** **
This matter is before the Court on the parties’ pretrial motions in
limine [DEs 138–42, 152, 171]. Being fully briefed on the matters and
having heard the arguments of counsel, for the reasons stated in the
pretrial conference and in this order, the Court hereby ORDERS as follows:
(1) The Court shall reserve ruling on the parties’ objections to
exhibits and witnesses. The parties may make
contemporaneous objections and the Court will resolve
those objections with the benefit of the context of trial.
(2) The parties’ motions [DE 138–42, 152, 171}] are
GRANTED IN PART and DENIED IN PART in
accordance with the tables below. During the course of
trial, any party may approach the bench and ask the Court
to reconsider any of the following motions if they believe
circumstances have changed.

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NORFOLK SOUTHERN’S MOTIONS IN LIMINE [DE 171]
Motion

1

(DE 171
at 1–2)

Ruling

Norfolk Southern’s motion to
exclude evidence related to the
Defendants’ dismissed positive
train control related
counterclaims.

GRANTED
The Court previously granted summary
judgment on the Defendants’ positive
train control related counterclaims. [DE
114.] Contrary to Defendants’ argument,
there is nothing to suggest that the train
operators should have been on some kind
of heightened alert due to the absence of
positive train control on either train. The
train operators were required to operate
the trains in the condition they were in
on the day of the subject collision and
thus evidence of positive train control is
not relevant to issues surrounding the
standard of care.
Any evidence regarding whether either
train involved in the subject collision was
equipped with positive train control
would likely confuse the jury as to
Norfolk Southern’s duty. Given the
anticipated arguments stated by
Defendant Tobergte, allowing evidence of
positive train control is likely to confuse
or mislead the jury into thinking that
Norfolk Southern should have equipped
all its locomotives with positive train
control. The evidence shall therefore be
excluded from trial.

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2
(DE 171
at 2–3)

3
(DE 171 at
3)

4
(DE 171
at 4)

5

(DE 171
at 4–7)

Norfolk Southern’s motion to
exclude evidence related to
Defendants’ dismissed
training- and supervisionrelated counterclaims.

GRANTED
Evidence related to these dismissed
counterclaims is irrelevant and is likely
to confuse or mislead the jury as to
Norfolk’s duties and the issues to be
decided at trial. If Norfolk Southern
opens the door, Defendants may approach
the bench and ask the Court to allow
introduction of evidence related to
Defendant Tobergte’s training as a
locomotive engineer.

Norfolk Southern’s motion to
exclude evidence related to the
Defendants’ dismissed
dispatch- and signal-system
related counterclaims.

GRANTED
The Court has already dismissed
Defendants’ counterclaims to the extent
that they assert Norfolk Southern’s
dispatch and signal systems
malfunctioned or otherwise did not
operate as expected. The Court therefore
grants Norfolk Southern’s motion.
However, evidence relevant to what
personnel on the subject trains saw or did
not see is not excluded by this ruling. The
Court notes that the parties agree that
this ruling does not preclude introduction
of evidence that the northbound signal
changed to a stop signal after Train 175
violated its signal.

Norfolk Southern’s motion to
exclude evidence related to
Defendants’ dismissed
Locomotive Inspection Act
counterclaims.

DENIED AS MOOT
Defendants do not intend to offer
evidence or argument related to these
dismissed counterclaims at trial.

Norfolk Southern’s motion to
DENIED AS MOOT
exclude use of any FRA
Defendants state that they do not intend
Accident/Investigation Reports
to offer such evidence.
concerning the subject collision.

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6

(DE 171
at 7)

7

(DE 171
at 8)

8
(DE 171
at 8–9)

9
(DE 171
at 9)

10

(DE 171
at 10)

11
(DE 171
at 10–11)

12
(DE 171
at 11–12)

Norfolk Southern’s motion to
exclude evidence relating to
Defendant Tobergte’s prior
dismissal from employment
based on a “STOP” signal
violation.

GRANTED as to Defendant Tobergte’s
earlier employment dispute regarding a
missed “STOP” signal. If Defendant Hall
elects to explore Tobergte’s familiarity
with the signal in this case, he may
explore the topic, but not in the context of
any employment disciplinary actions.

Norfolk Southern’s motion to
exclude evidence regarding
allegations of OSHA violations.

GRANTED

Norfolk Southern’s motion to
exclude evidence relating to
Defendant Hall’s abuse of
process counterclaim.

The Court will reserve ruling on this
motion pending resolution of the issues
presented in its show cause order [DE
190].

Norfolk Southern’s motion to
exclude the testimony of Larry
Mann.

GRANTED
Defendant Tobergte withdrew his
objection at the pretrial conference, and
all parties agree that this testimony
should be excluded in light of the Court’s
ruling on Norfolk’s first motion in limine
regarding positive train control.

Norfolk Southern’s motion to
exclude evidence related to
Defendant Tobergte’s
testimony that no one from
Norfolk Southern visited him
in the hospital.

GRANTED
The evidence appears to be irrelevant.
However, if Norfolk Southern opens the
door or such evidence otherwise becomes
relevant, the Defendants may approach
the Court and ask for permission to
introduce this evidence.

Norfolk Southern’s motion to
exclude evidence related to
Defendant Tobergte’s reaction
to any newspaper article
regarding the instant lawsuit.

DENIED AS MOOT
Defendants have stated they do not
intend to offer such evidence.

Norfolk Southern’s motion to
exclude evidence related to
Defendant Hall’s reports to his
psychiatrist that he is

The Court will reserve ruling on this
motion pending the issues raised in its
show cause order related to Defendant
Hall’s abuse of process claim.

–4–

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concerned that Norfolk
Southern is suing him.

As related to other claims, the Court does
not find that this evidence is relevant to
the emotional damages being sought by
Defendant Hall. His FELA counterclaim
centers on issues regarding Norfolk
Southern’s negligence and duty to provide
a safe workplace, and the damages that
flow from that would be damages that
were caused by the subject collision,
which in the case of emotional damages
would be things such as trauma resulting
from the collision.
But emotional distress experienced as a
result of being sued is not relevant to the
damages under his FELA counterclaim,
because that emotional distress does not
stem from the subject collision or any
alleged negligence on Norfolk Southern’s
part. Rather, it flows from Norfolk
Southern’s act of filing the lawsuit, not
its alleged negligence or the actual
collision.

13

(DE 171
at 12)

Norfolk Southern’s motion to
exclude evidence related to
other unrelated injuries or
accidents.

DENIED as vague and overbroad.
Norfolk Southern has not identified any
specific accidents, injuries, or even types
of accidents that should be excluded from
evidence. Excluding broad categories of
evidence is disfavored, so the Court will
deny this motion and direct the parties to
make contemporaneous objections at
trial. Sperberg v. Goodyear Tire & Rubber
Co., 519 F.2d 708, 712 (6th Cir. 1975)
(“Orders in limine which exclude broad
categories of evidence should rarely be
employed.”)

–5–

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14
(DE 171
at 12–13)

15
(DE 171
at 13–14)

DENIED
The parties agree that medical expenses
paid by Norfolk Southern are
inadmissible, and Defendants have stated
Norfolk Southern’s motion to
that they do not intend to introduce such
exclude evidence of Defendants’
evidence. Norfolk Southern may make a
medical expenses.
contemporaneous objection at trial if it
believes Defendants overstep their
bounds regarding evidence of medical
expenses.

Norfolk Southern’s motion to
exclude evidence of the parties’
financial circumstances.

GRANTED IN PART and DENIED IN
PART
A party’s ability to satisfy a judgment is
irrelevant to the substantive issues in the
parties’ negligence claims. To the extent
that evidence regarding any party’s
financial circumstance might be used to
show ability or inability to pay a potential
judgment, the motion is granted, and
that evidence shall be excluded. However,
the Court reserves ruling on the motion
to the extent that it applies to Defendant
Hall’s abuse of process counterclaim.
Evidence of Defendants’ earnings history
shall be permitted to prove their loss of
earnings and earning capacity. So to the
extent that the motion seeks to exclude
evidence of earnings history used to
establish damages related to Defendants’
FELA counterclaims, the motion is
denied.

16
(DE 171
at 14–15)

Norfolk Southern’s motion to
exclude arguments that
Defendants may recover
because Norfolk Southern’s
negligence was a “but for”
cause of their injuries.

DENIED AS MOOT
The parties have all stated they will
follow precedent established by the
United States Supreme Court regarding
causation in a FELA action.

–6–

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17
(DE 171
at 15)

18
(DE 171
at 15)

19

(DE 171
at 5)

20
(DE 171
at 15–16)

21

(DE 171
at 16–18)

Norfolk Southern’s motion to
prohibit comments or reference
to persons in the courtroom
who are not active participants
or witnesses in the trial.

DENIED as premature.
Defendants have stated they have no
intention of making the kind of comments
or references described in Norfolk
Southern’s motion, but as the Court and
the parties do not know who will be
present in the courtroom during trial, the
motion is denied as premature and the
parties may make contemporaneous
objections at trial.

Norfolk Southern’s motion to
exclude evidence regarding
Congress’s intent in enacting
the Federal Employers’
Liability Act.

GRANTED, with the exception that such
evidence is not excluded to the extent it is
necessary for the Court to properly
instruct the jury.

Norfolk Southern’s motion to
exclude evidence of the effect of
employee injuries on Norfolk
Southern’s supervisors.

DENIED as vague and premature.

Norfolk Southern’s motion to
exclude arguments that it
harasses, fires, or disciplines
employees based upon the
employee filing a lawsuit or
sustaining an injury during the
course of their employment.

GRANTED
Defendants have stated they have no
intention of making such arguments or
introducing such evidence.

Norfolk Southern’s motion to
exclude argument or evidence
that it should be punished.

DENIED AS MOOT
Punitive damages are not permitted
under a FELA claim, and Defendants
have stated they do not intend to
introduce such evidence or make such
arguments.

–7–

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22
(DE 171
at 18–19)

23
(DE 171
at 19–21)

24
(DE 171
at 21)

25
(DE 171
at 21–22)

26
(DE 171
at 22)

Norfolk Southern’s motion to
exclude evidence regarding the
impact of Defendants’ injuries
on their families.

DENIED
FELA does not permit the recovery of
damages for loss of consortium or loss of
services, and Defendants have stated
they are not pursuing such damages.
However, Defendants may demonstrate
emotional and mental injuries that may
arise from their inability to support or
engage with family members. The motion
is therefore denied, and parties may
make contemporaneous objections at trial
if necessary.

Norfolk Southern’s motion to
exclude evidence from
unqualified witnesses
regarding medical causation.

DENIED AS MOOT
Defendants have stated they will follow
the rules of evidence regarding expert
testimony and the parties appear to be in
agreement regarding which witnesses are
qualified to give evidence regarding
medical causation.

Norfolk Southern’s motion to
exclude certain opinion
evidence regarding credibility
of witnesses.

DENIED AS MOOT
The Court expects the parties to adhere
to the rules of evidence regarding opinion
evidence and credibility of witnesses.

Norfolk Southern’s motion to
exclude evidence concerning
workers’ compensation benefits
or the exclusivity of
Defendants’ remedies pursuant
to FELA.

DENIED AS MOOT
Defendants have stated that they do not
intend to introduce such evidence. The
Court will properly instruct the jury and
make a proper inquiry during voir dire
with respect to the scope of this case and
the remedies that apply.

Norfolk Southern’s motion to
exclude evidence of other
lawsuits, grievances, or claims
against Norfolk or its
employees.

The Court reserves ruling on this motion.
Such evidence may be relevant to
Defendant Hall’s abuse of process claim,
but generally evidence of other litigation
is rarely, if ever, relevant to the facts in a
case.

–8–

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GRANTED IN PART
To the extent that it relates to Defendant
Hall’s abuse of process claim, the Court
reserves ruling.

27
(DE 171
at 22–23)

28
(DE 171
at 23)

29

(DE 171
at 23)

30
(DE 171
at 23–24)

31
(DE 171
at 24)

Norfolk Southern’s motion to
exclude evidence or argument
criticizing it for defending itself
in this case, for not settling, or
for not apologizing.

To the extent that the evidence relates to
Defendants other counterclaims and
defenses, the motion is granted. Norfolk
Southern’s decisions to sue or not sue are
irrelevant to the factual issues to be
resolved by the jury in this case. The
issues relevant to this action relate to
who was responsible for the subject
collision, how much any responsible party
is at fault, and what damages flowed
from the collision. Norfolk Southern’s
decision to commence or refrain from
litigation is irrelevant to those issues.

Norfolk Southern’s motion to
exclude evidence that it or
other railroads have “playbook”
or common practice relating to
denying compensation to
injured employees.

GRANTED
The Defendants have stated they do not
intend to offer such evidence.

Norfolk Southern’s motion to
exclude evidence of insurance,
self-insurance, or any other
source of payment for a
judgment against Norfolk
Southern.

GRANTED
The Defendants have stated they do not
intend to offer such evidence. However,
evidence of Defendants fringe benefits
that might be used to establish lost
compensation is not excluded by this
order.

Norfolk Southern’s motion to
exclude certain evidence
relating to future medical
expenses unsupported by
competent expert testimony.

DENIED AS MOOT

Norfolk Southern’s motion to
exclude evidence misstating its
duty to the Defendants.

DENIED AS MOOT

–9–

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32

(DE 171
at 24–25)

33
(DE 171
at 25–26)

Norfolk Southern’s motion to
exclude “Golden Rule”
arguments by Defendants.

DENIED AS MOOT

Norfolk Southern’s motion to
exclude evidence relating to its
settlements with David Isaacs
or Eric Gardner.

GRANTED, to the extent that Norfolk
Southern asks the Court to require the
parties to follow FRE 408.

KEVIN TOBERGTE’S MOTIONS IN LIMINE [DE 138–142]
Motion
1

(DE 138)

2

(DE 139)

3

(DE 140)

4

(DE 141)

5

(DE 142)

Ruling

Kevin Tobergte’s motion to
exclude evidence pertaining to
collateral source benefits,
including Railroad Retirement
Benefits.

The Court reserves ruling on this motion
to review the parties’ arguments and the
applicable case law.

Kevin Tobergte’s motion to
exclude evidence or argument
regarding Norfolk Southern’s
“empowerment rule.”

DENIED as premature. If Defendants
believe that Norfolk Southern’s evidence
or argument during trial amount to an
assumption of the risk defense, they may
raise objections at that time.

Kevin Tobergte’s motion to
exclude evidence related to his
alleged failure to mitigate his
damages.

DENIED as premature.

Kevin Tobergte’s motion to
exclude evidence regarding
personal opinions of Norfolk
Southern employees.

DENIED as premature. Parties shall
follow the rules of evidence regarding
opinion evidence and credibility of
witnesses.

Kevin Tobergte’s motion to
exclude testimony from
witnesses that were not
disclosed prior to the deadline
for disclosing witnesses.

DENIED
Defendant Tobergte seeks to exclude the
testimony of two witnesses listed on
Norfolk Southern’s trial witness list [DE
173] because they were not disclosed
prior to appearing on the witness list.
The first, Eric Thomas, is a substitute for
Christopher Shorts, who was the 30(b)(6)
witness for Norfolk Southern to testify on

– 10 –

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the value of salvaged equipment,
locomotives, and railcars. Mr. Shorts is
no longer with the company and Mr.
Thomas has taken his place within the
company. A witness designated to testify
on behalf of an organization under FRCP
30(b)(6) is testifying about information
that is known or reasonably available to
the organization, not necessarily their
personal knowledge. So long as the
person is an appropriate designee under
30(b)(6) and can testify regarding the
organization’s knowledge, their personal
identity does not seem relevant. A
substituted designee, such as Mr.
Thomas, is subject to cross examination
and impeachment with the previous
designee’s deposition, which here would
be that of Mr. Shorts. The Court
therefore denies Defendant’s motion as to
Mr. Thomas.
The second witness, Dustin Mashburn, is
expected to testify in the place of Steven
Cox regarding assessments of damage to
equipment at the site of the collision.
Norfolk Southern has stated it would
prefer to use Mr. Mashburn because of
potential scheduling conflicts that may
arise for Mr. Cox. Mr. Mashburn was
mentioned in depositions taken by
Defendants and thus his testimony is not
an undue surprise, so the Court also
denies the motion as to Dustin
Mashburn.

– 11 –

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ANDY HALL’S MOTIONS IN LIMINE [DE 152]
Motion
1

(DE 152
at 1–2)

2

(DE 152
at 2)

3
(DE 152
at 2)

4

(DE 152
at 2–3)

Ruling

Andy Hall’s motion to exclude
evidence pertaining to
collateral source benefits.

The Court reserves ruling on this motion
to review the parties’ arguments and the
applicable case law.

Andy Hall’s motion to exclude
evidence related to disciplinary
charges or discipline that the
railroad issued to him during
his employment.

DENIED AS MOOT
Norfolk Southern has stated it does not
intend to introduce any such evidence.

Andy Hall’s motion to exclude
evidence referencing his
pending administrative claim
against Norfolk Southern
under the anti-retaliation
provision of the Federal
Railroad Safety Act.

DENIED AS MOOT
Norfolk Southern has stated it does not
intend to introduce any such evidence.

Andy Hall’s motion to prohibit
reference to counsel being
referred to as “union lawyers”
or “union designated counsel.”

GRANTED

Dated February 23, 2022.

– 12 –