Joseph v. Grand Trunk Western Railroad Company
Filing
219
OPINION and ORDER Resolving Motions in Limine. Signed by District Judge Stephen J. Murphy, III. (DPar)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOSEPH DIXON,
Plaintiff,
Case No. 2:13-14340
v.
HONORABLE STEPHEN J. MURPHY, III
GRAND TRUNK WESTERN RAILROAD
COMPANY,
Defendant.
/
OPINION AND ORDER RESOLVING MOTIONS IN LIMINE
The parties collectively filed 49 motions in limine: 43 from Defendant and six from
Plaintiff. The Court has reviewed the motions and finds that a hearing is unnecessary.
As the Court noted at the Final Pretrial Conference when it urged the parties to avoid
engaging in expensive and pointless pretrial motion practice: motions in limine serve
particular purposes. By making evidentiary rulings ahead of trial, the Court can facilitate
wise preparation by the parties and prepare a smooth path for trial—particularly by casting
aside inadmissible evidence that might confuse or prejudice the jury. See Figgins v.
Advance Am. Cash Advance Ctrs. of Mich., Inc., 482 F. Supp. 2d 861, 865 (E.D. Mich.
2007). Motions in limine are meant to deal with discrete evidentiary issues related to trial,
and are not "procedural devices for the wholesale disposition of theories or defenses."
Dunn ex rel. Albery v. State Farm Mut. Auto. Ins. Co., 264 F.R.D. 266, 274 (E.D. Mich.
2009) (citation omitted). For that reason, "[o]rders in limine which exclude broad categories
of evidence should rarely be employed. A better practice is to deal with questions of
admissibility of evidence as they arise." Sperberg v. Goodyear Tire & Rubber Co., 519 F.2d
708, 712 (6th Cir. 1975).
The matters contained in the motions are largely uncontested. The parties' disputes
arise over how the contested evidence will be used at trial. The reasons behind the parties'
motions are not entirely misplaced; at trial, some of evidence will likely be excluded, or
limited to particular purposes. But none of the evidence described in the motions is
inflammatory or otherwise so irreversibly prejudicial that the jury could not be properly
instructed on how to consider or disregard it. There is therefore little need to limit the
introduction of evidence and testimony in advance, particularly on the scale urged by the
parties. In contrast, granting even a modest portion of the relief sought in the parties'
motions would create a minefield of predetermined yet open-ended evidentiary rulings; that
disposition would lead to more disputes and sidebars at trial, rather than fewer—ironically
resulting in the "mini trials" both parties profess a desire to avoid.
The Court will briefly resolve each of the pending motions with the foregoing
reasoning in mind.
I.
Defendant's Motions
MIL 1 (ECF 80) — Denied
Defendant does not seek relief in the motion.
MIL 2 (ECF 81) — Granted
Plaintiff does not seem to oppose the relief requested and there is no relevance in
testimony or argument that the Plaintiff is either entitled to or has received benefits from
other sources.
MIL 3 (ECF 82) — Granted in part
In light of Plaintiff's concession in his response brief, he is precluded from offering
evidence or mentioning Defendant's size, revenue, state of incorporation, or the location
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of its headquarters, other than for the limited purposes of (1) comparing it to other railroads
which have implemented ergonomic controls and (2) showing that it has the resources to
implement a particular program or control.
MIL 4 (ECF 83) — Granted
In light of Plaintiff's concession in his response brief, he is precluded from making the
erroneous claim that he must prove only "slight negligence."
MIL 5 (ECF 84) — Denied
The protective measures sought by Defendant are too ambiguous to meaningfully
assist in conducting the trial. The parties may object to testimony concerning Plaintiff's
behavior during trial and the Court will rule on the objections individually.
MIL 6 (ECF 85) — Denied without prejudice
The protections sought by Defendant are premature. If, after any testimony on
damages but prior to closing arguments, Defendant remains concerned about the potential
content of Plaintiff's closing argument, it may bring its concerns to the Court again, out of
the jury's hearing.
MIL 7 (ECF 86) — Denied
The Defendant's concerns can be most properly and adequately addressed through
jury instructions. A preemptive limit on testimony is unnecessary.
MIL 8 (ECF 87) — Denied
Defendant does not seek relief in the motion.
MIL 9 (ECF 88) — Denied
Defendant does not seek relief in the motion.
MIL 10 (ECF 89) — Denied
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The Defendant's concerns can be most properly and adequately addressed through
jury instructions, and, if necessary, objections. A preemptive limit on testimony is
unnecessary.
MIL 11 (ECF 90) — Granted
The Defendant's payment of medical bills is irrelevant to the claims here. The Court
will grant the motion. If Plaintiff wishes to revisit the issue, he may bring the evidence to the
Court's attention on the morning he intends to introduce it, out of the hearing of the jury.
MIL 12 (ECF 91) — Denied
Evidence of safer alternatives could be relevant in determining whether Defendant
was negligent. Defendant's insistence that Plaintiff has no such evidence may prove true,
but it is no reason to preclude such evidence wholesale and in advance of Plaintiff
attempting to introduce it.
MIL 13 (ECF 92) — Granted in part, denied in part
Defendant conceded that at the time of its reply, Plaintiff still had "ample time to
produce the exhibits and, if necessary, produce the witnesses through whom plaintiff
intends to introduce them for supplementary telephone depositions." ECF 181, PgID 4080.
Defendant therefore requested that the Court "exclude any exhibit not timely produced to
its counsel." Id. at 4081. Some time has passed since the reply was filed, so the Court will
mostly deny the motion without any finding of what specific pieces of evidence were or
were not timely produced. The parties are ordered to confer as to what potential evidence
Defendant still deems untimely produced and the Plaintiff must produce it.
MIL 14 (ECF 93) — Denied
4
The mere occurrence of a meeting or conversation is not protected by attorney-client
privilege. Defendant may object if testimony elicited at trial encroaches on privileged
communications.
MIL 15 (ECF 94) — Denied
Defendant does not seek relief in the motion.
MIL 16 (ECF 95) — Denied
The protective measures sought by Defendant are too ambiguous to meaningfully
assist in conducting the trial. Nevertheless, Plaintiff is cautioned that the trial is to focus on
Plaintiff's actual claims, and the evidence in specific support of those claims. The Court will
not hesitate to sustain objections if testimony veers into inadmissible matters.
MIL 17 (ECF 96) — Denied
The Defendant's concerns can be most properly and adequately addressed through
in-trial objections, if necessary. The scenario described by Defendant—wherein Plaintiff
testifies that he would have lost his job had he raised safety concerns—likely lacks
foundation and an objection would be sustained. Considering such a question and answer
in the abstract, however, is not particularly helpful and granting the motion is therefore
unnecessary. Both parties are cautioned against retracing at trial the circuitous path of
arguments set forth in their briefs.
MIL 18 (ECF 97) — Denied
Defendant moved to "exclude claims governed by" the Railway Labor Act and argues
that it would be inappropriate and inconsistent with federal law "to permit the jury to
interpret" the collective bargaining agreement between Defendant and its employees. ECF
97, PgID 2733, 2736. Motions in limine are not the place to challenge claims, but rather,
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evidence likely to be made in support of those claims. The parties have not yet submitted
their proposed jury instructions. Until the Court determines how it will instruct the jury, it
would be premature to determine what evidence on this matter would or would not assist
the jury.
MIL 19 (ECF 98) — Denied
The protective measures sought by Defendant are too ambiguous to meaningfully
assist in conducting the trial. The Court will not hesitate to sustain objections by Defendant
if questioning by Plaintiff veers into impropriety or matters of inadmissibility.
MIL 20 (ECF 99) — Granted in part, denied in part
If either party intends to introduce evidence of injuries sustained by other employees,
the party must alert the Court of its intent in advance—preferably first thing each morning
of trial—out of the hearing of the jury. The Court will entertain specific objections based on
dissimilarity at that time.
MIL 21 (ECF 100) — Denied
Defendant objects to a chart included in an expert witness's report that lays out the
present value of general household services, per year, over time. Specifically, Defendant
objects to the possible admission of the chart on the grounds that the expert who prepared
it did not take into account what types of tasks Plaintiff actually needed or might need to
have performed by someone else. Consequently, Defendant asserts that the "replacement
cost" used is unreliable and inapplicable to Plaintiff.
Although the report lists 17 tasks as constituting "household services", it is not clear
how those definitions come to bear on the chart itself. A footnote to the report explains that
the figures are "based on current replacement cost of $20/hour", ECF 100-2, PgID 2772,
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but makes no reference to the 17 itemized tasks. Rather, the figure is apparently a roughly
discounted version of what a popular cleaning service typically charges—nothing more.
See ECF 150, PgID 3670. So the dispute over the evidence of what Plaintiff can and
cannot do seems misplaced.
The chart is not complex; it calculates a simple equation on a line-by-line basis.
Conceivably, a jury could prepare the same thing, once given the proper variables. The two
most critical variables for the formula are the number of hours spent per day (column 3)
and the replacement cost (column 4). A properly instructed jury could, however, substitute
a different hourly replacement cost and the rest of the data chart could assist the jury in
generating new present values. In other words, the report could serve as a template.
The Court will not preclude the admission of the report at this time. The Court may,
however, reconsider its ruling once evidence of Plaintiff's need to pay for household service
(or lack of such evidence) becomes apparent at trial. In the face of those changed
circumstances, presenting the report to the jury may be more confusing than helpful.
MIL 22 & 28 (ECF 101) — Granted in part
Plaintiff is precluded from offering evidence of the sale of his boat and house.
MIL 23 (ECF 102) — Denied
Defendant does not seek relief.
MIL 24 (ECF 103) — Denied
The requested preemptive limit on testimony is unnecessary. Plaintiff must, naturally,
establish a foundation before eliciting the testimony of his witnesses. Defendant's concerns
can adequately and more suitably addressed through objections and, if necessary, jury
instructions.
7
MIL 25 (ECF 104) — Denied
The protective measures sought by Defendant are too ambiguous to meaningfully
assist in conducting the trial. There is little efficiency to be gained by precluding testimony
related to an abstract phrase in advance of trial, while granting the motion might result in
prejudice to Plaintiff. Defendant may object to testimony or argument during trial and the
Court will rule on the objections individually.
MIL 26 (ECF 105) — Denied
There is no need to preliminarily admit evidence which the parties evidently dispute
with vigor. Defendant may move to admit the evidence in the normal course, subject to any
objections raised by Plaintiff.
MIL 27 (ECF 106) — Granted
Contrary to Plaintiff's assertion, "Grandberry's own adherence to safe working
procedures" is not "highly relevant to his credibility to testify regarding safety issues on the
railroad," nor is "Grandberry's own attentiveness and competence as a supervisor . . .
probative regarding his knowledge of the actual working conditions encountered by
Plaintiff." ECF 156, PgID 3731. Consistent with Rule of Evidence 608, Plaintiff may testify
as to Grandberry's "reputation for having a character for truthfulness or untruthfulness,"
provided a foundation has been laid for such testimony. Under the same rule, "extrinsic
evidence" of Grandberry's prior conduct—including the alleged accident referred to in
Dixon's deposition—may not be used to "attack or support [Grandberry's] character for
truthfulness."
MIL 29 (ECF 107) — Denied
8
The existence of the CN LIFE Rules go to Defendant's familiarity with ergonomics and
willingness to take affirmative steps in avoiding ergonomic risks. The Rules are therefore
admissible for those purposes. If presented for another purpose, Defendant may object and
the Court will entertain the objection at that time.
MIL 30 (ECF 108) — Granted
Like many of the parties' motions in limine, Defendant's motion #30 reveals a
contention rehearsed in Wayne County Circuit Court and likely to recur in the upcoming
trial. In this circumstance, however, a preliminary ruling is appropriate. Plaintiff may ask
Defendant's experts whether Plaintiff's experts were present during their inspections of the
premises, but Plaintiff may go no further with questions on the topic. The testimony would
have little value in revealing (or dispelling) "potential bias" and that there is no need to
"correct any misapprehension by the jury that Plaintiff had a representative present, or was
offered the opportunity to attend and declined to do so." ECF 158, PgID 3744. In contrast,
a dispute in front of the jury, and subsequent explanation of the relevant rules, is likely to
cause confusion.
MIL 31 & 38 (ECF 109) — Denied
The Defendant's objections to the relevance of the reports are more suitably
addressed through cross examination of the expert witness. The materials may assist the
jury in determining the reasonableness of Defendant's conduct under the circumstances.
MIL 32 (ECF 110) — Granted in part, denied in part
The protective measures sought by Defendant are mostly too ambiguous to
meaningfully assist in conducting the trial. Plaintiff must, of course, lay a foundation before
moving to admit any of the disputed literature. The parties are ordered to confer and narrow
9
which items are likely to be offered and which will not; Defendant's parentheticals in its
reply brief seem a good start in determining those that ought not to be offered.
Nevertheless, the Court will grant the motion insofar as it seeks to preclude Plaintiff
from using non-admitted evidence as a mere "visual aid." Under Rule of Evidence 703,
when a party wishes to offer facts or data relied upon by an expert that "would otherwise
be inadmissible," the "proponent of the opinion may disclose them to the jury only if their
probative value in helping the jury evaluate the opinion substantially outweighs their
prejudicial effect." The Court has vetted Drs. Widmeyer and Andres and permitted them to
testify as experts, but it does not follow that every source listed in their reports may be
shown to the jury as a "visual aid" bolstering the experts' opinion, and there is no probative
value in doing so.
MIL 33 (ECF 111) — Denied
There is no reason to exclude reference to the terms "cumulative trauma disorder"
and "cumulative trauma injuries" and the Court will therefore deny Defendant's motion. To
the extent witnesses refer to Plaintiff's diagnosed condition, however, they will use the
terminology employed by his diagnosing physicians. Any other description will require
laying additional foundation.
MIL 34 (119) — Denied
Photographs of other railyards are not categorically inadmissible. Such photographs
may meaningfully and properly assist the jury in visualizing the conditions of Plaintiff's
workplace — provided they are an accurate comparison. Plaintiff must, of course, lay a
proper foundation prior to their admission.
MIL 35 & 36 (ECF 112) — Denied
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The protective measures sought by Defendant are too ambiguous to meaningfully
assist in conducting the trial. Counsel for the two parties may have litigated prior, similar
matters, but the trial in this matter has not yet begun. There is no basis to preclude the use
of abstract phrases in yet-unmade arguments. Counsel will instead be ordered to comply
not only with all applicable federal rules of procedure and evidence, but also to conduct
themselves in a professional and fair-handed manner. The Court, and the public, will
tolerate nothing less.
MIL 37 (ECF 113) — Granted
In light of Plaintiff's response that he "will not make any such argument," ECF 164,
PgID 3832, the Court will grant the motion.
MIL 39 (ECF 114) — Provisionally granted
The Court is reticent to effectively resolve a question of claim preclusion via a motion
in limine. Nevertheless, Defendant's argument under Nickels is persuasive. In light of the
reasoning in Nickels, the question of ballast type and size would not seem to make
Defendant's negligence under the FELA more or less probable. The Court will therefore
grant the motion, subject to argument from Plaintiff prior to introducing testimony on the
subject.
MIL 40 (ECF 115) — Denied
Defendant has indicated to the Court's staff that Plaintiff has no intention of calling
Defendant's former employee, Rodney Pendergraff, thus mooting the motion in limine. The
motion, however, remains pending, so the Court must address it. Defendant insists that one
of the State Bar of Michigan's Ethical Opinions (R-2) prohibited Plaintiff's counsel from
communicating with Pendergraff. The opinion, however, explained that the applicable rule
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prohibiting contact with a represented party's employees (MRPC 4.2) does "not address
communications with former agents and employees, and technically these should be no
bar, since former employees cannot bind the organization[.]" ECF 115-5, PgID 2932. The
opinion went on to admit that some jurisdictions have extended the communication
prohibition to former employees who "continue to personify the organization even after they
have terminated their employment relationship" or an employee who "still owes a duty to
the organization, is privy to privileged information, entitled to attend meetings, or has an
active ongoing relationship with the entity[.]" Id. at 2932–33. But the opinion concluded that
these narrow exceptions did not apply in the case of a nurse who cared for a plaintiff during
the time of an alleged malpractice but was no longer an employee of the defendant. On the
facts before the Court, there is no impropriety in Plaintiff's counsel communicating with the
former employee Pendergraff.
MIL 41 (ECF 116) — Granted
In light of Plaintiff's agreement with the relief sought, the phrase "workers'
compensation" or any variant thereof shall be redacted from exhibits presented to the jury.
MIL 42 (ECF 117) — Granted
As with the motion concerning Pendergraff, Defendant has informed the Court's staff
that Plaintiff will not be calling Steven Lilly, but again, the motion remains pending.
Defendant claims that Steven Lilly was not timely disclosed as a witness. Plaintiff does not
dispute the claim, but insists that there is no prejudice to Defendant because it is aware of
Lilly and his likely testimony through a previous lawsuit. In the 6th Circuit, "Rule 37(c)(1)
mandates that a trial court sanction a party for discovery violations in connection with Rule
26(a) unless the violations were harmless or were substantially justified." Sexton v. Uniroyal
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Chem. Co. Inc., 62 F. App'x 615, 616 n.1 (6th Cir. 2003). Plaintiff may insist that transcripts
from prior cases are just as good as deposing a witness anew in anticipation of a new
trial—but that does not make it so. Defendant is entitled to fair warning of the witnesses to
be presented at trial and the opportunity to depose those witnesses. Plaintiff has provided
no defense for his untimeliness and his efforts to downplay the prejudice to Defendant only
make the failure to disclose the witness more baffling. Steven Lilly will not be permitted to
testify at trial.
MIL 43 (ECF 118) — Denied
The the protective measures sought by Defendant are too ambiguous to meaningfully
assist in conducting the trial. Defendant seeks to preclude Plaintiff, "his counsel, his
representatives, and his witnesses" from making direct or indirect references to a
"conspiracy" to suppress information about ergonomics in railroad work. ECF 118, PgID
3087. There would be inadequate foundation for Dr. Andres—or any of Plaintiff's other
witnesses—to testify to such a charge but the Court will nevertheless refrain from granting
the motion in limine. Plaintiff is cautioned against soliciting baseless testimony in front of
the jury.
II.
Plaintiff's Motions
MIL 1 (ECF 120) — Granted
Plaintiff believes Defendant has video surveillance of him at work. Defendant does
not admit whether it has footage, but during discovery, refused to turn any over on the
grounds of attorney-client privilege. Plaintiff is worried that Defendant will introduce footage
as impeachment evidence at trial, and moves to preemptively preclude its admission.
Plaintiff cites cases (though none in this circuit) in which courts have precluded undisclosed
13
surveillance tape, even for solely impeachment. The Court is satisfied that video
surveillance in this case (in contrast to prior statements, records, etc.) may be particularly
deceiving; springing it on opposing counsel at trial can be especially difficult to address.
The video is excluded.
MIL 2 (ECF 121) — Granted in part, denied in part
The records relating to Plaintiff's filing for benefits under the RBR are not,
categorically, more prejudicial than probative; neither are the records of RBR doctors who
examined him. As explained in the above ruling on Defendant's second motion in limine,
there is little relevance in testimony or argument that the Plaintiff is either entitled to or has
received benefits from other sources. But the Court rejects Plaintiff's argument that Eichel
forbids any information whatsoever concerning RBR benefits. There, the district court
excluded evidence that the plaintiff "was receiving $190 a month in disability pension
payments under the Railroad Retirement Act" Eichel v. N.Y. Cent. R. Co., 375 U.S. 253,
253 (1963). The Supreme Court agreed with the determination and concluded that "the
likelihood of misuse by the jury clearly outweigh[ed] the value of this evidence"—that is,
evidence of the payments. Id. at 255. The Supreme Court's formal holding was that the
district court "properly excluded the evidence of disability payments." Id. (emphasis added).
The Court must do the same here. Neither party may admit evidence that Plaintiff did
indeed receive benefits, and in what amounts. Any otherwise-admissible evidence which
reveals information about eligibility for benefits or the actual receipt of benefits shall be
redacted.
MIL 3 (ECF 122) — Denied
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Although prior, similar injuries are not a prerequisite for finding that Defendant was
negligent, their sparsity or non-occurrence is not irrelevant. Plaintiff's concerns about
confusing the jury are more properly remedied through jury instructions, not by barring
relevant evidence.
MIL 4 (ECF 123) — Granted in part, denied in part
The Court thoroughly reviewed the parties' arguments and held a hearing on the
matter a year ago. At that time, the Court believed that the issues in dispute might narrow
as the parties prepared for trial and better determined precisely what testimony might be
provided at trial and, consequently, whether any of it was legitimately objectionable. The
Court therefore denied the motion without prejudice and anticipated a narrower challenge
when renewed. Unfortunately, the present motion is no more narrow, and raises the same
three issues. The filing is accordingly in all likelihood sanctionable.
A. Dr. Wojcik's causation testimony.
Dr. Wojcik is a biomechanical engineer, and her expert testimony is therefore limited
to that discipline. She may apply the general principles of biomechanics to the facts in the
case and opine on how a hypothetical person's body would respond to particular forces and
what types of injuries would result. She may not testify about the cause of Plaintiff's specific
injuries.
B. Wojcik's and Brookings's Allegedly Incomplete Reports
The experts' mere proviso that more specific disagreement with Dr. Andres would "be
addressed in future deposition and/or trial testimony" does not render the reports
incomplete. Wojcik and Brookings may testify at trial and their reports may be admitted into
evidence. Testimony beyond what is reasonably contained in those reports, however, will
15
not be permitted. Because Defendant has not yet elicited any testimony that might exceed
the opinions in the report, a ruling at this time would be premature.
C. Dr. Wojcik's Supplemental Report
Wojcik's very brief supplemental report contains no new theories and is therefore
most accurately described as a supplement under Rule 26(e)(2), rather than an additional
report under 26(a)(2). It was therefore not untimely. New opinions derived from the sources
within the supplement—or any other source—are inadmissible.
MIL 5 (ECF 124) — Denied
A preemptive limit on the testimony is unnecessary and premature. Plaintiff's
concerns can be more suitably addressed through objections if Defendant actually attempts
to introduce testimony on Plaintiff's finances.
MIL 6 (ECF 125) — Granted in part, denied in part
Evidence concerning Plaintiff's obesity is relevant in light of the expert testimony that
such a condition can be a cause of osteoarthritis. If Defendant can lay a foundation that
other health problems are known causes of osteoarthritis, the evidence may likewise be
admissible. Otherwise, evidence of Plaintiff's other health problems will be admissible only
for the purposes of determining Plaintiff's future work prospects and as impeachment
evidence insofar as it goes to Plaintiff's untruthfulness. Consistent with Defendant's
response brief, any reference to Plaintiff receiving or being counseled for a DUI shall be
redacted from materials shown to the jury.
SO ORDERED.
Dated: November 8, 2017
s/Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge
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CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was served upon the parties and/or
counsel of record on November 8, 2017, by electronic and/or ordinary mail.
s/David P. Parker
Case Manager
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