Loos v. BNSF Railway Company

Filing 114

IT IS HEREBY ORDERED that BNSF's Supplemental Motions in Limine are GRANTED in part and DENIED in part 93 . (Written Opinion) Signed by The Hon. Paul A. Magnuson on 09/03/2015. (LLM)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Michael D. Loos,

Case No. 13-cv-3373 (PAM/FLN)
Plaintiff,

v.

ORDER

BNSF Railway Company,
Defendant.
___________________________________________________________
This matter is before the Court on Defendant BNSF’s “Supplemental” Motions in
Limine.
A.

Testimony of William Fry
BNSF asks the Court to exclude the testimony of William Fry, who has never been

disclosed as a witness for Loos (or for any other party). Loos’s only response to the
Motion is that Fry was a BNSF employee who worked in Willmar and thus BNSF should
have known about him. But whether BNSF was aware of Fry’s existence or even his
potentially relevant testimony is not dispositive of BNSF’s Motion on this point. Loos
had a duty to disclose all witnesses with information regarding the issues in the case and
Fry was never among the witnesses disclosed. This is not trial by ambush. BNSF’s
Motion on this point is granted.
B.

Testimony of John Murphy and Michael Leonard
BNSF also asks for the exclusion of two individuals whose testimony, according

to BNSF, is relevant only for Loos’s dismissed FRSA claim. Both of these individuals
work for BNSF outside of Minnesota.

According to Loos, Murphy’s testimony is

relevant to attendance guideline issues.

He does not specify the subject matter of

Leonard’s testimony, only that BNSF initially identified Leonard as a witness. Loos
concedes that Leonard’s testimony is “unlikely” to be necessary. (Pl.’s Opp’n (Docket
No. 112) at 2.)
For the reasons discussed more thoroughly below with respect to the final
supplemental Motion, the trial will not involve issues of Loos’s attendance. Thus, the
Motion is granted as to Murphy. However, there is no record before the Court regarding
Leonard’s potential testimony and given that he was initially disclosed by BNSF, the
Court will not issue a blanket preclusion of his testimony. Whether his testimony is
relevant and admissible is a matter for trial. The Motion is therefore granted in part and
denied without prejudice in part.
C.

Judicial Notice Instruction
Finally, BNSF requests what it terms a “judicial notice” instruction regarding

Loos’s termination, instructing the jury that Loos was fired for his “overwhelming record
of attendance violations” and BNSF’s “consistent enforcement of tis [sic] attendance
policy.” (Def.’s Mot. (Docket No. 93) at 2.) This requested instruction goes far beyond
the bounds of any conceivable “judicial notice.”
As this Court has repeatedly emphasized, next week’s trial concerns only Loos’s
injury, the cause(s) of that injury, and the damages that flow directly from the injury.
The jury will be instructed that Loos was terminated for reasons unrelated to the injury
and that they are not to consider his termination in any way in determining any of the
issues in this case. The Court will not countenance either party allowing this case to
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devolve into a trial regarding Loos’s termination; that issue was decided by dispositive
motions and will not be presented to the jury.
BNSF’s Motion is denied.
CONCLUSION
Accordingly, IT IS HEREBY ORDERED that BNSF’s Supplemental Motions in
Limine (Docket No. 93) are GRANTED in part and DENIED in part as fully set forth
above.

Dated: September 3, 2015

s/ Paul A. Magnuson
Paul A. Magnuson
United States District Court Judge

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