Pohl v. Furnas County

Filing 100

MEMORANDUM AND ORDER- The defendant, County of Furnas's 94 Motion in Limine is denied, without prejudice to the defendant asserting its objections at the time of trial. Ordered by Judge Laurie Smith Camp. (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JUSTIN POHL,
Plaintiff,
vs.
COUNTY OF FURNAS, a Nebraska
Political Subdivision,
Defendant.

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CASE NO. 7:08CV5011

MEMORANDUM
AND ORDER

This matter is before the Court on the Defendant’s Motion in Limine (Filing No. 94).
Defendant County of Furnas (“Furnas County”) seeks to preclude the Plaintiff Justin Pohl
(“Pohl”) from presenting any evidence or making any reference, at the time of trial, to
subsequent remedial measures undertaken by Furnas County, including evidence of or
reference to the fact that a new sign was placed at a different location after the accident
that gave rise to this action. Furnas County suggests that the evidence in inadmissible
under Federal Rule of Evidence 407, and under Neb. Rev. Stat. § 27-407 (Reissue 2008),
if it is offered to prove negligence or culpable conduct.
All three court decisions on which Furnas County relies1 involved jury trials. The
case at hand is scheduled for bench trial. Both parties have presented information to the
Court in some detail, describing Furnas County’s placement of the new sign on the
roadway after the occurrence of the accident, so concerns about shielding the finder-of-fact
from information that might give rise to unfair prejudice are not present in this case.

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Johnson v. Arizona Department of Transportation, 233 P.3d 1133 (Ariz. 2010);
First Security Bank v. Union Pacific Railroad Co., 152 F.3d 877 (8th Cir. 1998); Radford v.
Seaboard System Railroad, Inc., 828 F.2d 1552 (11th Cir. 1987).

Pohl suggests that evidence of Furnas County’s placement of the new sign after his
accident may be admissible for purposes of impeachment of Furnas County’s expert
witnesses in the event the experts testify that the pre-accident condition and placement of
the sign were sufficient and appropriate, and for purposes of demonstrating the feasibility
of the placement of the new sign. While the Court is not persuaded that evidence of the
newly placed sign is admissible under the feasibility exception to Rule 407, it remains to
be seen whether such evidence may be admissible for purposes of impeachment.
Accordingly,
Defendant County of Furnas’s Motion in Limine (Filing No. 94) is denied, without
prejudice to the Defendant asserting its objections at the time of trial.
DATED this 31st day of May, 2011.
BY THE COURT:

s/Laurie Smith Camp
United States District Judge

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