Ponds et al v. Force Corporation

Filing 70

ORDER AND REASONS: ORDERED that defendant's 56 motion in limine to exclude evidence of the track repairs performed by defendant after the accident is DEFERRED UNTIL TRIAL. No party shall mention the track repairs at trial without first obtain ing the Court's permission at a bench conference. FURTHER ORDERED that defendant's 57 motion in limine to exclude all evidence and testimony related to plaintiff's claim for loss of future earning capacity is DENIED. Signed by Judge Lance M Africk on 1/10/2017.(blg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
REGINALD A. PONDS ET AL.

CIVIL ACTION

VERSUS

No. 16-1935

FORCE CORPORATION

SECTION I
ORDER AND REASONS

Before the Court are defendant’s motion 1 in limine to exclude all evidence and
testimony of subsequent remedial measures and defendant’s motion 2 in limine to
exclude all evidence and testimony related to plaintiff’s claim for loss of future
earning capacity. The Court addresses each motion in turn.
I.
Defendant Force Corporation (“Force”) first requests that the Court exclude all
evidence related to the post-accident repairs and modifications made by Force to the
railroad track at issue. Force argues that pursuant to Rule 407 of the Federal Rules
of Evidence the repairs are not admissible to prove Force’s culpability for the accident.
Plaintiff counters that although the repairs may not be admitted to prove culpability,
the evidence should nevertheless be admitted for the limited purpose of impeaching
Force’s witnesses, who will presumably deny that any defect in the track existed prior
to the accident.

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R. Doc. No. 56.
R. Doc. No. 57.

Rule 407 provides that “[w]hen 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; 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. The Advisory
Committee Notes explain that the primary justification for Rule 407 is the “social
policy of encouraging people to take, or at least not discouraging them from taking,
steps in furtherance of added safety.” Fed. R. Evid. 407, Advisory Committee Note
(1972); see also Adams v. Chevron USA, Inc., 383 F. App’x 447, 452 (5th Cir. 2010).
“The rule also seeks to ensure that negligence is properly determined according to
what the defendant knew or should have known prior to the accident, not what the
defendant knew as a result of the accident.” Adams, 383 Fed. App’x. at 452 (internal
quotation marks omitted).
As stated, Rule 407 allows evidence of subsequent remedial measures to be
admitted for the purpose of impeachment. Fed. R. Evid. 407. The Fifth Circuit has
cautioned against the “liberal application” of the impeachment exception, however,
directing district courts to “guard against the improper admission of evidence to prove
prior negligence under the guise of impeachment.” Blythe v. Bumbo Int’l Trust, 634
F. App’x 944, 950 (5th Cir. 2015) (internal quotations and citation omitted). The line
of reasoning proceeds as follows:
This exception must be applied with care, since any evidence of
subsequent remedial measures might be thought to contradict and so in
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a sense impeach a party’s testimony that he was using due care at the
time of the accident, and if this counted as “impeachment” the exception
would swallow the rule.
Public Service Co. of Indiana v. Bath Iron Works Corp., 773 F.2d 783, 792 (7th Cir.
1985); see also Blythe, 634 F. App’x at 950 (adopting same).
Less recently, the Fifth Circuit has acknowledged the “preponderant view of
the impeachment exception, possibly unwise but nevertheless provided by Rule 407,”
which permits subsequent remedial measures to be used for impeachment when
evidence of the measures “tend[s] to contradict [the witness’s] opinions.”

See

Bickerstaff v. S. Cent. Bell Tel. Co., 676 F.2d 163, 168 (5th Cir. 1982). Nevertheless,
the Fifth Circuit has noted that “a defendant does not open the door to evidence of
subsequent remedial measures merely by arguing that it was not negligent or that a
dangerous condition did not exist.” Relf v. Wal-Mart Stores, Inc., 49 F.3d 728, at *3
(5th Cir. 1995) (per curiam) (citing Wilkinson v. Carnival Cruise Lines, Inc., 920 F.2d
1560, 1568 n.16 (11th Cir. 1991)). 3
After surveying the case law, it appears that when considering whether to
admit subsequent remedial measures to impeach a witness, the Court should
consider the extent to which the witness’s testimony is contradicted by the remedial
measures. As the Fifth Circuit has acknowledged, any evidence of post-accident
repairs by a defendant might be thought to contradict and so in a sense impeach

But see Jones v. H.W.C. Ltd., No. 01-3818, 2003 WL 42146, at *4-5 (E.D. La. Jan. 3,
2003) (Vance, J.) (allowing a company’s subsequent-to-the-accident replacement of
no-skid tape to be used as impeachment evidence in a slip-and-fall case where the
company witnesses testified that the non-skid tape was in “good condition” prior to
the accident).
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testimony by a defense witness that the defendant exercised due care. See Hardy,
870 F.2d at 1011. If such a generalized contradiction was sufficient to admit evidence
of the remedial measure, the impeachment exception would swallow the rule. See id.
It follows that a line must be drawn between the sort of universal I-was-actingreasonably-at-the-time-of-the-accident defense witness testimony which always
surfaces at trial and testimony which is specifically and directly contradicted by the
post-accident repair.
When deciding whether remedial measures may be used to impeach, the Court
should also consider whether the plaintiff has other adequate evidence for crossexamining the defendant’s witnesses. See Stecyk v. Bell Helicopter Textron, Inc., 295
F.3d 408, 416 (3d Cir. 2002) (“In light of the availability of this pre-incident
impeaching evidence, it was not error for the District Court to exclude the prejudicial
post-incident remedial measures.”). Bearing in mind the Court’s ability under Rule
403 to exclude evidence whose probative value is outweighed by the danger of unfair
prejudice, confusing the issues, or misleading the jury, the Court retains
“considerable discretion” to exclude remedial measures for impeachment purposes
where the probative value of those measures is diminished by the availability of other
impeachment material. See id.; see also Grenada Steel Indus., Inc. v. Alabama
Oxygen Co., 695 F.2d 883, 888 (5th Cir. 1983) (recognizing the interplay between
Rules 407 and 403).
This decision cannot be made in a vacuum. The parties have not provided the
Court with sufficient detail regarding the nature of the alleged defects in the track

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and the precise nature of the repairs performed by Force. The Court cannot presently
weigh the probative value of the repairs as impeachment evidence. Further, the
Court is in no position prior to trial to state what Force’s witnesses will or will not
testify to on the witness stand. For those reasons, the best course of action is to defer
a ruling as to the applicability of Rule 407’s impeachment exception until trial. Any
party intending to mention Force’s subsequent remedial measures shall first
approach the bench and obtain permission from the Court. 4
II.
The motion to exclude all evidence and testimony related to plaintiff’s claim
for loss of future earning capacity was filed December 28, 2016. The Court’s June 6,
2016 scheduling order sets forth the motions deadlines. It states, in pertinent part:
All pretrial motions, including motions in limine regarding the
admissibility of expert testimony, shall be filed and served in sufficient
time to permit hearing thereon no later than Wednesday, November 30,
2016. . . . Motions in limine not concerned with the admissibility of
expert testimony shall be filed twelve working days before trial and
responses thereto shall be filed seven working days before trial. Motions
filed in violation of this Order shall be deemed waived unless good cause
is shown. All other motions in limine will not be considered unless good
cause is shown.
R. Doc. No. 12, at 1.
Irrespective of whether it should be considered a dispositive motion, the motion
addressing future earning capacity is at the very least a motion “concerned with the
admissibility of expert testimony.” See R. Doc. No. 57-1, at 11 (“Lastly, the loss of

The Court further observes that, should the remedial measures be admitted for the
limited purpose of impeachment at trial, a limiting instruction to that effect will, of
course, be provided.

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earning capacity calculation by Plaintiff’s expert economist must be excluded because
it is not based on any fact whatsoever.”). It should have been filed and served in order
to permit hearing thereon no later than Wednesday, November 30, 2016. Defendant
has not demonstrated good cause for the delay.
Defendant argues that the key evidence supporting the motion in limine was
not known until after the plaintiff’s orthopedic surgeon was deposed at the end of
December. But that argument ignores the fact that the discovery period concluded
on November 4, 2016. 5 No continuances have been requested or granted in this case,
and defendant cannot rely on the parties’ apparent arrangement to agree, without
Court permission, to continue deposition deadlines in order to obtain an extension of
the motion deadline. Resolving such a motion on the eve of trial would be unfair to
the plaintiff and disruptive of this Court’s schedule. The motion is therefore denied. 6
III.
For the foregoing reasons,
IT IS ORDERED that defendant’s motion in limine to exclude evidence of the
track repairs performed by defendant after the accident is DEFERRED UNTIL
TRIAL. No party shall mention the track repairs at trial without first obtaining the
Court’s permission at a bench conference.

R. Doc. No. 12, at 2.
Defendant is able, of course, to move for judgment as a matter of law at trial
pursuant to Rule 50(a) of the Federal Rules of Civil Procedure.

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IT IS FURTHER ORDERED that defendant’s motion in limine to exclude all
evidence and testimony related to plaintiff’s claim for loss of future earning capacity
is DENIED.
New Orleans, Louisiana, January 10, 2017.

_______________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

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