Union Pacific Railroad Company v. Beemac Trucking, LLC et al

Filing 299

MEMORANDUM AND ORDER that the Motion in Limine to Ascertain the Admissibility of Evidence 241 submitted by Defendant Beemac Trucking, LLC, is denied; the Motion in Limine 264 submitted by Defendants Landstar Ranger, Inc., and Edward Samuel Edl ing is denied; Union Pacific's Objection to Magistrate Judge's Order 281 is overruled; and Magistrate Judge Gossett's Order (Filing N. 275) denying Union Pacific's Motion to Supplement the Final Pretrial Order is affirmed. Ordered by Chief Judge Laurie Smith Camp. (ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
UNION PACIFIC RAILROAD COMPANY,

CASE NO. 8:11CV8

Plaintiff,
vs.

MEMORANDUM
AND ORDER

BEEMAC TRUCKING, LLC, LANDSTAR
RANGER, INC., and EDWARD SAMUEL
EDLING,
Defendants.

This matter is before the Court on the Motion in Limine to Ascertain the
Admissibility of Evidence (Filing No. 241) submitted by Defendant Beemac Trucking,
LLC (“Beemac”); the Motion in Limine (Filing No. 264) submitted by Defendants
Landstar Ranger, Inc. (“Landstar”) and Edward Samuel Edling (“Edling”); and the
Objection to Magistrate Judge’s Order (Filing No. 281) submitted by Union Pacific
Railroad Company (“Union Pacific”). For the reasons discussed below, all the motions
will be denied.
I. The Beemac Motion
Beemac asks the Court to limit the scope of testimony to be offered by Union
Pacific’s witnesses, Matthew Miller and Cynthia Thompson.
A. Matthew Miller
Beemac argues that Miller, designated by Union Pacific as an expert witness on
the issue of certain damages, is not qualified to offer opinions as to:
1) Injuries allegedly sustained by the FELA claimants,
2) Medical diagnoses of any injuries actually sustained by the FELA claimants,
3) Causation of any injuries claimed or sustained by the FELA claimants,

4) The necessity of medical treatment received by the FELA claimants,
5) Medical treatment received by the FELA claimants,
6) The amount of medical expenses incurred by the FELA claimants,
7) Whether the medical expenses incurred by Union Pacific as a result of the
FELA claims were necessitated by the accident,
8) Other damages claimed by the FELA claimants,
9) The amounts(s) of any settlements received by the FELA claimants,
10) Whether any amounts paid by Union Pacific pursuant to FELA were
necessitated by the accident, fair reasonable, and/or made in good faith,
11) Any interpretation of FELA, the substance of FELA, and any requirement of
FELA, and
12) Any interpretation of the Carmack Amendment, the substance of the
Carmack Amendment, and any requirements of the Carmack Amendment.
Union Pacific argues that the Motion is untimely and, even if not untimely, it
should be denied because (1) if Beemac is liable to Union Pacific under its Carmack
Amendment Claim, Beemac’s liability for damages Union Pacific incurred in the
payment of certain FELA claims turns on the question of whether such damages were
reasonably foreseeable to Beemac at the time it entered into its contract with Union
Pacific, and (2) Miller is qualified to testify about whether Union Pacific’s payment of the
FELA claims was reasonable, fair, and made in good-faith. Union Pacific notes that
Miller will not be offering any testimony or opinions about the law or what the law
requires.

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In response, Beemac argues that Union Pacific must prove not only that Union
Pacific’s FELA damages were reasonably foreseeable to Beemac at the time it entered
into the contract with Union Pacific, but also that the damages were caused by Beemac.
Assuming Beemac’s Motion was timely, or that there was good cause for
Beemac’s submission of an untimely motion, the myriad of objections Beemac presents
regarding Miller’s potential testimony will best be addressed at the time of trial.
B. Cynthia Thompson
Beemac argues that Thompson should be precluded from offering testimony
about the value of the grapple truck, because she was not designated as an expert.
Specifically, Beemac argues that although Thompson might be qualified to testify about
the procurement cost of the truck, only an expert would be qualified to testify about its
depreciation or its salvage value.
Union Pacific responds that Thompson was disclosed as a non-retained expert
expected to testify about the calculation of Union Pacific’s damages in connection with
the loss of the grapple truck, and Union Pacific filed a motion to supplement the pretrial
order to include Thompson’s expert qualifications.

(Union Pacific’s motion to

supplement the pretrial order was denied by Magistrate Judge Gossett on November
18, 2013, at Filing No. 275, and Union Pacific’s Objection to the Magistrate Judge’s
Order, addressed below, will be denied.) Finally, Union Pacific argues that Thompson
has the requisite knowledge to offer a lay opinion about the value of the grapple truck as
an employee of the company that owned the truck.

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Thompson may testify as a lay witness and the Court will not preclude her, in
limine, from offering testimony about the value of the grapple truck. Beemac may assert
its objections, foundational and otherwise, at the time of trial.
II. The Landstar/Edling Motion
Landstar and Edling ask the Court to prohibit Union Pacific from presenting
evidence or argument regarding (1) the electronic control unit (“ECU”) taken from the
grapple truck, and (2) the cross-claims among the Defendants, including claims for
indemnification or contribution.
Union Pacific argues (1) the Motion is untimely, (2) Union Pacific has no intention
of violating the Court’s earlier order (Filing No. 226) regarding the ECU, and (3) certain
evidence related to the cross-claims among the parties is relevant to elements of Union
Pacific’s claim and the probative value of such evidence outweighs any potential
prejudicial impact on the Defendants.
Landstar and Edling reply that are not attempting to preclude Union Pacific from
offering in its case-in-chief any of the exhibits listed in its opposition brief, but are only
attempting to preclude Union Pacific from presenting evidence, comment, or argument
about claims between the Defendants, including claims for indemnification or
contribution.
The Court will not repeat herein the factual basis or legal analysis that led to
Court to sustain the Defendants’ earlier motions in limine regarding the ECU data. The
Court’s earlier order (Filing No. 226) remains in effect, and the pending Landstar/Edling
Motion as it relates to the ECU is moot.

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The cross-claims among the Defendants will be the subject of a separate trial to
the bench. (See Text Order at Filing No. 236.) At the time of the pre-trial meeting with
counsel on the first day of trial, the Court will discuss with counsel a proposed
preliminary jury instruction advising the jurors that they are not to concern themselves
with any claims among the Defendants, and that any opinions expressed by one
Defendant suggesting fault on the part of another Defendant is not evidence of the
second Defendant’s liability to Union Pacific. With respect to specific questions that
may be posed by Union Pacific’s counsel, or specific exhibits that may be offered by
Union Pacific, the Defendants’ objections will be entertained at the time of trial.
III. Union Pacific’s Objection to the Magistrate Judge’s Order
In an appeal from a magistrate judge's order on a pretrial matter contemplated by
28 U.S.C. § 636(b)(1)(A), a district court may set aside any part of the magistrate
judge's order shown to be clearly erroneous or contrary to law. 28 U.S.C. §
636(b)(1)(A). The district court “must consider timely objections and modify or set aside
any part of the [magistrate’s] order that is clearly erroneous or is contrary to law.” Fed.
R. Civ. P. 72(a).
Here, the Pretrial Order was entered on October 28, 2013. This matter was set
for trial on November 12, 2013.

On November 7, 2013, counsel for Union Pacific

moved to continue the trial. The Court granted Union Pacific’s motion to continue the
trial, and rescheduled the trial for January 21, 2014. On November 13, 2013, Union
Pacific moved to amend the Pretrial Order to add two expert witnesses, including
Thompson. Beemac promptly opposed the motion to amend, and Magistrate Judge
Gossett denied the motion on November 18, 2013. Magistrate Judge Gossett’s order
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(Filing No. 275) is neither clearly erroneous nor contrary to law. It is well-reasoned, and
this Court agrees with his conclusion that an amendment to the Pretrial Order as
suggested by Union Pacific is not warranted considering the procedural history of this
case, nor is the suggested amendment necessary to prevent any manifest injustice.
Accordingly,
IT IS ORDERED:
1. The Motion in Limine to Ascertain the Admissibility of Evidence (Filing No.
241) submitted by Defendant Beemac Trucking, LLC, is denied;
2.

The Motion in Limine (Filing No. 264) submitted by Defendants Landstar

Ranger, Inc., and Edward Samuel Edling is denied;
3.

Union Pacific’s Objection to Magistrate Judge’s Order (Filing No. 281) is

overruled; and
4.

Magistrate Judge Gossett’s Order (Filing N. 275) denying Union Pacific’s

Motion to Supplement the Final Pretrial Order is affirmed.

Dated this 13th day of December, 2013.
BY THE COURT:
s/ Laurie Smith Camp
Chief United States District Judge

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