Logsdon v. BNSF Railway Company et al
ORDER granting in part and denying in part BNSF's motion to exclude non-retained expert testimony 105 ; granting in part and denying in part BNSF's motion in limine 172 ; denying 174 BNSF's Motion in Limine regarding alleged FRSA retaliation; granting 175 BNSF's Motion in Limine regarding "disability determinations"; granting 184 BNSF's Motion in Limine regarding medical bills or expenses; granting in part and denying in part 191 Logsdon's Motion in Limine. Ordered by Judge John M. Gerrard. (CCB)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
STEVEN C. LOGSDON,
BNSF RAILWAY COMPANY,
This matter is before the Court on the parties' motions in limine, and
the railroad's motion to limit testimony of the plaintiff's non-retained expert
witnesses. Filing 105; filing 172; filing 175; filing 184; filing 191. The Court
heard arguments on these motions during an August 21, 2017 hearing. For
the reasons explained below, the parties' motions will be granted in part, and
denied in part.
1. BNSF's Motion in Limine: Filing 172
BNSF requests an order precluding Logsdon, his counsel, and his
witnesses from directly or indirectly presenting or arguing 351 separate
categories of information. Logsdon does not object to several of these
categories. Others remain in dispute.
The parties agree, and the Court now orders, that Logsdon shall not
present the following at trial:
BNSF withdrew objection 12, regarding the potential interjection of insurance, at the
Court's August 21 hearing. Filing 172 at 3.
Any reference to or evidence regarding Berkshire Hathaway or
Warren Buffett. The Court will, however, ask the jury about
possible business relationships with BNSF during voir dire.
Any reference to or evidence as to the difference in status, size, or
strength of Logsdon as an individual and BNSF as a corporation.
Filing 189 at 4.
Any statement asking the jurors to place themselves in Logsdon's
position or to imagine his pain or emotions. Filing 189 at 4.
Any references to inflation or the effect of inflation upon any
award of damages in a FELA case. Filing 172 at 4.
Any reference to the history, congressional intent, or purposes of
the Federal Employers' Liability Act or to the remedial purpose of
the law. Filing 189 at 5.
Any reference to this as a "compensation" case. Filing 189 at 9.
That the damage award in a FELA case is subject to federal
income tax. Filing 189 at 9.
Claims or argument seeking prejudgment interest, as such
interest in not recoverable in a FELA claim. Filing 189 at 9.
Any reference to, or argument, evidence, or testimony that
Logsdon has or may have sustained or developed Reflex
Sympathetic Dystrophy or Complex Regional Pain Syndrome as a
result of the incident with the coal and slip paper alleged in his
FELA claim. Filing 189 at 23.
Any reference to, or argument, or statement, regarding Robert
Long, a former carman and union representative in Alliance.
Filing 189 at 23.
References from either party to any settlement discussions,
documents, and statements made therein. Filing 189 at 24-25.
BNSF's motion to exclude reference, evidence, or argument on these points is
BNSF's motion regarding the following information and evidence will
be denied without prejudice to reassertion at trial. Indeed, while the parties
do not generally dispute these points, and the Court would likely sustain
objections on these points, Logsdon argues that they are either overly vague,
or may become relevant depending on the evidence adduced at trial.
Any reference to, evidence, or arguments regarding the size or
financial condition of BNSF. Filing 189 at 2.
Any reference to, evidence, or arguments intended to inflame or
arouse feelings of hostility or resentment toward BNSF,
including, but not limited to, e.g., plaintiff or anyone else being
"railroaded" or reference to the term or like terms. Filing 189 at
Any statement or argument embellishing or inaccurately
summarizing Logsdon's medical history. Filing 189 at 5.
Any reference to or evidence regarding Logsdon's reputation for
safety on the job or reputation as to character. Filing 189 at 5.
Any reference to or evidence in the nature of "expert" testimony
or opinions beyond those specifically disclosed during discovery.
Filing 189 at 6.
Any reference to or evidence regarding any other claims,
accidents, incidents, or lawsuits involving defendant BNSF, or
any testimony regarding such claims, accidents, incidents, or
lawsuits, without the Court first ruling on the relevance,
materiality, and admissibility of such matters outside the
presence of the jury.
Any statement by counsel, Logsdon, or any of his witnesses
expressing a personal opinion concerning the bona fides or
credibility of BNSF's defenses or witnesses or any statement
personally vouching for the credibility of plaintiff or his
witnesses. Filing 189 at 15.
Any reference regarding any implication that BNSF or its
attorneys have not fully complied with or otherwise properly and
fully responded to discovery.
Testimony of witnesses not previously identified as persons with
knowledge of relevant facts and any request of BNSF to stipulate
to any facts or matters in front of the jury. Filing 189 at 23-24.
Questions directed to BNSF counsel in front of the jury. Filing
189 at 24.
Demands or requests before the jury for matters found or
contained in BNSF's file for this action or any other request
during the course of the trial and in the presence of the jury.
Any testimony given over objections in depositions without a
ruling thereon by the Court being previously made.
Any references relating to the attorney client privilege, work
product privilege, or privileged communications. Filing 189 at 25.
Any statement as to what any physician, physical therapist,
chiropractor, psychologist, psychiatrists, or any other person
practicing the healing arts allegedly told plaintiff or plaintiff's
witnesses as to the extent or nature of his or her examinations,
alleged findings, disability or physical impairment, diagnosis, or
BNSF's motion to exclude reference, evidence, or argument on these points is
denied without prejudice to reassertion at trial. To be clear, counsel will need
to seek Court permission prior to raising any of the above points in the
presence of the jury.
The following topics raised in BNSF's motion in limine are in dispute,
or otherwise warrant further discussion.
General complaints and comments about unsafe conditions2
BNSF moves in limine to exclude any reference to general complaints
and comments about the workplace or allegedly unsafe conditions that are
not directly related to the specific indecent at issue. Filing 172 at 3. Logsdon
objects to this motion as "vague and ambiguous." Filing 189 at 7.
Although evidence of prior accidents may be admissible to prove notice
on the part of a defendant, any such accidents admitted "must be sufficiently
similar in time, place or circumstances to be probative." First Sec. Bank v.
Union Pacific R.R. Co., 152 F.3d 877, 879 (8th Cir. 1998); see Johnson v.
Union Pacific R. Co., 2007 WL 2914886, at *3 (D. Neb. 2007). Thus, to the
extent Logsdon intends to introduce such evidence, he must show that the
facts and circumstances of the other accidents "are substantially similar to
the case at bar." First Sec. Bank, 152 F.3d at 880. The Court is without
sufficient information to rule on BNSF's motion, so it will be denied without
prejudice to reassertion at trial.
References to Logsdon's "dire financial condition"
BNSF seeks to exclude any reference or evidence regarding the
"stressed or otherwise dire financial condition of plaintiff or his family."
Filing 172 at 1. Logsdon argues, and the Court agrees, that testimony
regarding his financial condition may be relevant to his damages claim for
pain and suffering. However, as Logsdon recognizes, such testimony may, or
The Court interprets this objection as separate from BNSF's motions regarding the
alleged "rash of injuries" in 2012.
may not, open the door to evidence regarding collateral source benefits. Filing
189 at 4; see Moses v. Union Pacific R.R. Co., 64 F.3d 413, 416 (8th Cir. 1995).
BNSF's motion on these grounds will be denied.
References to FELA as Logsdon's sole remedy
BNSF seeks to exclude any suggestion that a FELA award is Logsdon's
"sole remedy, only chance, or sole available source for damages or
compensation." Filing 172 at 3. Logsdon argues that such references may be
necessary because "most members of the jury panel may hold a preconceived
and commonly held notion that all work-related injuries are covered by state
workers' compensation and that the Plaintiff in this case is somehow trying
to 'double dip' or collect twice." Filing 189 at 8.
The Court will grant BNSF's motion on these grounds. Indeed, as
ineligibility for worker's compensation is irrelevant to the underlying FELA
claim, and unfairly prejudicial to the railroad. See Loos v. BNSF R. Co., 2015
WL 5039342, at *2 (D. Minn. 2015); Campbell v. BNSF Ry. Co., 2011 WL
799743, at *1 (D. N.D. 2011); Magelky v. BNSF Ry. Co., 2008 WL 238451, at
*8 (D. N.D. 2008) (citing Schmitz v. Canadian Pac. Ry. Co., 454 F.3d 678, 685
(7th Cir. 2006)). Accordingly, Logsdon will not be permitted to present
argument or evidence that this litigation is his sole avenue for recovery.
References to Logsdon's gross wage loss as a measure of damages
BNSF argues that Logsdon should not introduce evidence of his gross
wage loss at trial. Filing 176 at 6. A prevailing FELA plaintiff is entitled to
recover his after-tax income losses, not gross wages, and his award is not
subject to federal income taxation. Norfolk & Western Ry. Co. v. Liepelt, 444
U.S. 490, 493-94 (1980).
Logsdon argues that evidence of his gross wage loss is nonetheless
relevant because gross wage loss is a necessary factor in calculating net wage
loss, and that the jury is entitled to understand how the plaintiff's net wage
loss was calculated to assess whether the numbers advanced by the parties
are credible. See filing 189 at 10. The Court agrees with Logsdon's position,
and BNSF's motion on these grounds will be denied. See Stevenson v. Union
Pacific R.R. Co., 2009 WL 652932, at *5 (E.D. Ark. 2009); Johnson, 2007 WL
2914886, at *3.
The parties may introduce their respective versions of
Logsdon's gross wage loss to explain the avenue to their respective net wage
loss calculations, and the jury will be properly instructed to only award net
BNSF wages in establishing damages
BNSF seeks to exclude any evidence regarding Logsdon's claimed past
wage loss, future wage loss, loss of corresponding fringe benefits, or
diminished earning capacity "based upon wages as a BNSF laborer or relief
foreman after [Logsdon's] dismissal from service from BNSF on August 27,
2013[.]" Filing 172 at 4. The railroad argues that calculating past wage loss
beyond Logsdon's dismissal and projecting future economic damages on his
railroad wages constitutes "legal fiction." Filing 173 at 6.
As BNSF acknowledges, the Eighth Circuit rejected a similar argument
in Martinez v. Union Pac. R. Co., 82 F.3d 223, 227-28 (8th Cir. 1996). There,
the trial court permitted the plaintiff, who was injured 30 minutes before his
termination, to rely on his railroad earnings as the foundation for his posttermination wage loss claim. The Eighth Circuit affirmed, noting that the
plaintiff's economic expert, using his railroad earnings as a basis of
comparison, testified to other jobs that the plaintiff could have performed at
the same or similar salary. Id. Here, Logsdon's expert intends to use his
railroad earnings as a foundation for what Logsdon may have otherwise
earned outside of BNSF's employ. See filing 189 at 12. BNSF will counter
that testimony with its own expert. It will be up to the jury to weight that
evidence in determining Logsdon's future earnings capacity. See generally
Loos, 2015 WL 3970169, at *7-8; Pothul v. Consol. Rail Corp., 94 F. Supp. 2d
269 (N.D.N.Y. 2000); Graves v. Burlington N. & Santa Fe Ry. Co., 77 F. Supp.
2d 1215, 1219 (E.D. Okla. 1999).
References to alternative methods of removing or cleaning up coal
The parties agree that, at the time of Logsdon's alleged injury, BNSF
employed at least one alternative method for removing residual coal. BNSF
seeks to exclude any testimony regarding that alternative method, arguing
that it is irrelevant, misleading, and unfairly prejudicial. See filing 173 at 8.
The existence of a "safer alternative method" does not, without more,
conclusively establish negligence on the part of the railroad. See Chicago, R.I.
& Pac. R.R. v. Lint, 217 F.2d 279, 282-83 (8th Cir. 1954); see also McKennon
v. CSX Transp., Inc., 897 F. Supp. 1024, 1027 (M.D. Tenn. 1995) aff'd, 56
F.3d 64 (6th Cir. 1995). But it is relevant to the determination of reasonable
care. Heater v. Chesapeake & Ohio Railway Co., 497 F.2d 1243, 1247 (7th Cir.
1974); see Huckaba v. CSX Transp. Inc., 2015 WL 672334, at *5-6 (S.D. Ill.
2015); Campbell v. Consol. Rail Corp., 2009 WL 36889, at *6
2009); Cook v. CSX Transp., Inc., 2008 WL 2275544, at *3 (M.D. Fla. 2008);
Swoope v. CSX Trasnp., Inc., 2015 WL 12564948, at *3 (N.D. Ga. 2015); see
also Churchwell v. Bluegrass Marine, Inc., 444 F.3d 898, 905 (6th Cir. 2006)
(proof that a safer alternative existed makes it "more probable" that
defendants failed to exercise reasonable care). Accordingly, Logsdon may
introduce evidence of the alternative method. BNSF's argument essentially is
that evidence of a safer alternative method should be excluded because that
evidence, standing alone, does not prove the plaintiff's case. That may be so.
But the issue at this point is not whether Logsdon has enough evidence to
submit to the trier of fact, it is simply whether evidence of a safer alternative
is relevant and admissible, and it is, at least at this point. Whether Logsdon
is able to present enough evidence of BNSF's negligence to submit to the trier
of fact is an issue that will be taken up on an appropriate motion after
evidence is submitted.
Testimony regarding a "rash of injuries" in 2012; a "safety stand
down" in the Alliance, Nebraska facility; safety awards, or the
failure to win such awards; injury statistics and the reportability
BNSF seeks to exclude evidence which, generally speaking, suggests
that Mechanical Zone 9 had experienced a significant number of workplace
injuries in or around 2012. Filing 173 at 8-9. The railroad has submitted a
separate, yet related motion regarding evidence pertaining to Logsdon's
previously-dismissed claim under the Federal Railroad Safety Act. Filing 174.
The parties generally agree that the events surrounding Logsdon's
termination are not relevant to the FELA claim unless BNSF specifically
invokes the misrepresentations in Logsdon's January 16, 2013 injury report.
BNSF has strongly indicated that it does not intend to do so. Assuming that
holds true, the evidence described in filing 172, objections 26-30, and filing
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174 are irrelevant, and any objections to the introduction of such evidence
will be sustained. However, because the relevance of such testimony depends
on the evidence adduced at trial, BNSF's in limine motions will be denied
without prejudice to reassertion.
Relatedly, BNSF objects to any testimony that the "sole basis for
[Logsdon's] failure to resume his former railroad employment with BNSF is
due to his alleged injury from the claimed coal and slip paper incident or that
he would have worked for BNSF until retirement." Filing 172 at 6. However,
the Court understands, based on representations at the August 21 hearing,
that this objection may no longer be in dispute. So, BNSF's motion to exclude
will be denied without prejudice to reassertion.
Measures taken by BNSF after the alleged accident
BNSF seeks to exclude evidence of subsequent remedial measures.
Filing 189 at 21; see Fed. R. Evid. 407. Specifically, the railroad objects to any
suggestion that, following the alleged incident, it took measures to ensure
that all residual coal was dumped outdoors. If, in fact, the railroad has barred
the use of slip paper to remove residual coal, then Rule 407 applies. BNSF's
motion will be denied at this time without prejudice to reassertion.
2. BNSF's Motion in Limine: Filing 184
BNSF requests an order prohibiting plaintiff and his counsel from
"using or referring in any manner whatsoever at the trial of this matter,
directly or indirectly, to medical bills or expenses paid by insurance provided
to plaintiff by BNSF pursuant to labor agreements between the carrier and
plaintiff's union." Filing 184 at 1. Logsdon does not oppose this request, see
filing 197, and BNSF's motion will be granted.
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3. Logsdon's Motion in Limine: Filing 191
Logsdon requests an order precluding BNSF, its counsel, and its
witnesses from directly or indirectly presenting or arguing 7 separate
categories of information.
Collateral source benefits
Logsdon seeks to exclude any reference to his receipt of disability-
related benefits. Filing 192 at 1. The parties agree that such evidence is
inadmissible, so long as Logsdon does not open the door. See Moses, 64 F.3d
at 416. Accordingly, Logsdon's motion will be denied without prejudice to
reassertion at trial.
Improper character evidence regarding BNSF as a "safe company" and
any inflammatory arguments by BNSF attorneys
As explained at the August 21 hearing, Logsdon's motion on these
grounds will be denied without prejudice to reassertion at trial.
References to Logsdon as the "only injured employee"
Logsdon's seeks to exclude "[a]ny reference that Plaintiff is the only
employee of BNSF who has ever claimed injury from the work practice of
using slip paper to remove coal from underneath a railcar." Filing 191. At the
August 21 hearing, however, Logsdon's attorney acknowledged that such
evidence is relevant to foreseeability. Logsdon's motion will be denied on
BNSF rules and procedures
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Logsdon argues that BNSF should be "precluded from using BNSF
rules, policies and procedures that are too general and vague with no
objective standard as a basis to charge Plaintiff with contributory
negligence." Filing 191 at 1. The Court will take up any relevance or
foundational objections regarding these materials at trial. Logsdon's motion
is denied without prejudice to reassertion.
Alcohol-related references and prior workplace injury
Logsdon seeks to exclude any reference to his prior alcohol use, his past
treatment for alcohol-related issues, or the fact that he had two prior DUI
citations. Filing 191 at 2. He also moves to exclude any reference to prior
injuries he sustained while employed with Western Sugar. BNSF does not
object to Logsdon's motion on these grounds. Filing 199 at 6-7. Accordingly,
Logsdon's motion to exclude this evidence will be granted.
4. BNSF's motion to limit testimony of non-retained expert
witnesses: Filing 105
BNSF moves to exclude causation testimony from three of Logsdon's
treating physicians. It also moves to exclude testimony from Dr. John G.
Spethman regarding alleged physical limitations "that prevent [Logsdon]
from functioning without restrictions[.]" Filing 105 at 2. As grounds for its
motion, BNSF argues that Logsdon failed comply with Fed. R. Civ. P.
26(a)(2)(B), which requires disclosure of expert reports. It also argues that,
even assuming Logsdon complied with Rule 26, the treating physicians'
testimony is unreliable, and is therefore inadmissible under Fed. R. Evid.
702. See filing 105.
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Rule 26(a) Disclosures
In FELA cases, expert testimony is often required to establish the
causal connection between the accident and some item of physical or mental
injury "unless the connection is a kind that would be obvious to laymen, such
as a broken leg from being struck by an automobile." Brooks v. Union Pacific
R. Co., 620 F.3d 896, 899 (8th Cir. 2010) (quoting Moody v. Maine Cent. R.R.
Co., 823 F.2d 693, 695 (1st Cir.1987)). Because Logsdon's injury has no
obvious origin, "expert testimony is necessary to establish even that small
quantum of causation required by FELA." Brooks, 620 F.3d 896.
During discovery in this case, Logsdon disclosed to BNSF his intent to
call Dr. Stephen Annest, Dr. Alicia Feldman, and Dr. Eric Gardner—all
treating physicians—on the issue of causation. See filing 107-2 at 2-9. He did
not, however, serve BNSF with written reports under Rule 26(a)(2)(B), which
applies to any expert "retained or specially employed to provide expert
testimony in the case[.]" Logsdon's failure to do so, BNSF now argues,
warrants exclusion of the treating physicians' testimony. See filing 106 at 4.
A treating physician may be deemed to be "retained or specifically
employed to provide expert testimony" if he or she testifies to the cause of the
plaintiff's injury. The operative question in that regard is whether the
physician made the causation determination in the course of providing
treatment. Montes v. Union Pac. R. Co., 2011 WL 1343200, at *2 (D. Neb.
2011) (citing Meyers v. Nat'l R.R. Passenger Corp., 619 F.3d 729 (7th Cir.
2010)). If the determination was made in the course of treatment, then the
plaintiff need not provide a Rule 26(a)(2)(B) report. If, however, the opinion
was rendered in the course or in anticipation of litigation, then Rule
26(a)(2)(B) applies, and a report must be disclosed. Montes, 2011 WL
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1343200, at *2; Navrude v. U.S. (USPS), 2003 WL 356091, at *7 (N.D. Iowa
2003) (collecting cases).
The Court agrees with BNSF that the causation opinions at issue here
were not made in the course of providing treatment, and that Rule 26(a)(2)(B)
therefore applies. But the Court is not convinced that exclusion is the
appropriate remedy. Accordingly, BNSF's motion will be denied.
The Court's power to exclude testimony not properly disclosed in
compliance with its discovery and pretrial orders is essential to its control
over the case. Sellers v. Mineta, 350 F.3d 706, 711 (8th Cir. 2003).
Accordingly, when a party fails to provide information or identify a witness in
compliance with Rule 26(a), the Court has wide discretion to fashion a
remedy or sanction as appropriate for the particular circumstances of the
case. Wegener v. Johnson, 527 F.3d 687, 692 (8th Cir. 2008). In doing so, the
Court balances the following factors: (1) the reason for plaintiff's
noncompliance; (2) surprise and prejudice to BNSF; (3) the extent to which
allowance of the proposed testimony would disrupt the order and efficiency of
the trial; and (4) the importance of the information. Id.
Here, Logsdon has not provided a specific reason for his noncompliance,
other than his belief that expert reports were not required. But even so,
BNSF had ample notice of the nature and substance of the treating
physicians' anticipated testimony, thereby reducing undue surprise or
prejudice. See filing 107-2. Further, BNSF has vigorously deposed the
treating physicians, questioning each about the basis of their respective
causation determinations. Accordingly, while the Court in no way condones
Logsdon's failure to produce the reports, it cannot be said—at least on these
facts—that exclusion is warranted. BNSF's motion to exclude on these
grounds will be denied.
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BNSF next contends that the causation opinions of Dr. Annest, Dr.
Feldman, and Dr. Gardner are inadmissible under Fed. R. Evid. 702. In order
to be admissible, expert testimony must be both relevant to a material issue
and reliable. Margolies v. McCleary, Inc., 447 F.3d 1115, 1120 (8th Cir. 2006);
see Fed. R. Evid. 702. As a "gatekeeper," this Court must ensure that both
conditions are satisfied, screening the proposed evidence and evaluating it in
light of the specific circumstances of the case. Miller v. Baker Implement Co.,
439 F.3d 407, 412 (8th Cir. 2006). The party offering the challenged
testimony—here, Logsdon—bears the burden of establishing admissibility by
a preponderance of the evidence. Lauzon v. Senco Prods., Inc., 270 F.3d 681,
686 (8th Cir. 2001) (citing Daubert v. Merrell Dow Pharms., 509 U.S. 579, 592
Under Rule 702, proposed expert testimony must meet the following
three prerequisites: (1) evidence based on scientific, technical, or other
specialized knowledge must be useful to the finder of fact in deciding the
ultimate issue of fact; (2) the proposed expert witness must be qualified to
assist the finder of fact; and (3) the proposed evidence must be reliable or
trustworthy in an evidentiary sense so that if the finder of fact accepts it as
true it provides the assistance the finder of fact requires. Lauzon, 270 F.3d at
686 (internal citations omitted). The Court also considers: (1) whether the
theory or technique can be (and has been) tested; (2) whether the theory or
technique has been subjected to peer review and publication; (3) whether the
theory or technique has a known or potential error rate and standards
controlling the technique's operation; and (4) whether the theory or technique
is generally accepted in the scientific community. Daubert, 509 U.S. at 592–
94. This evidentiary inquiry is meant to be flexible and fact-specific, and a
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court should "use, adapt, or reject Daubert factors as the particular case
demands." Unrein v. Timesavers, Inc., 394 F.3d 1008, 1011 (8th Cir. 2005).
Here, BNSF argues that Logsdon's treating physicians "lack a reliable
basis or methodology to provide a causation opinion." Filing 106 at 15.
Specifically, the railroad contends that none of the physicians performed any
assessments or analysis to determine if the "mechanics of the alleged work
incident resulted in his symptoms, such as an accident reconstruction." Filing
106 at 15. Rather, it claims, the experts' opinions as to causation are based
solely on what Logsdon reported to them regarding his alleged work incident.
Logsdon argues that the evidence is admissible under Rule 702 because
treating physicians personally observed Logsdon, reviewed his medical
reports, and performed "exhaustive" differential diagnoses in reaching their
respective opinions. Filing 113 at 23. He further points out that the
witnesses, contrary to BNSF's argument, need not possess "railroad specific
knowledge" or have a background in mechanical engineering or accident
reconstruction to render an opinion regarding causation. Filing 113 at 24.
After reviewing the relevant testimony, the Court concludes that the
treating physicians' testimony regarding the cause of Logsdon's alleged injury
is admissible under Fed. R. Evid. 702. Indeed, Logsdon provided each
physician with a history of his condition,3 and what he claimed to be the
underlying cause—that is, pulling slip paper. The physicians then performed
multiple physical examinations and diagnostic testing with respect to
To be sure, BNSF highlights in its depositions potential inadequacies in Logsdon's self-
reported medical history. But those issues may be explored on cross-examination. See
Walker v. Soo Line R. Co., 208 F.3d 581, 587 (7th Cir. 2000) (medical professionals
reasonably may be expected to rely on self-reported patient histories which are subject to
meaningful exploration on cross-examination).
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Logsdon, which confirmed, in their respective medical opinions, the cause of
the underlying medical condition. Based on that information, the physicians
testified that Logsdon's injury was caused, at least in part, by the slip paper
incident. Filing 107-6 at 9-10; filing 107-3 at 10; filing 114-5 at 21.
It is true, as BNSF notes, that the testifying physicians are not also
accident reconstructionists, and none personally witnessed the underlying
injury giving rise to his claim. "[But] such certitude is not required by the
Federal Rules of Evidence." Laski v. Bellwood, 1197 WL 164416, at *3 (6th
Cir. 1997). Rather, where, as here, the physician's opinions are based on
personal examinations, medical knowledge, and valid differential diagnoses,
such testimony is sufficiently reliable to reach the jury. See Glastetter v.
Novartis Pharms. Corp., 252 F.3d 986, 988-89 (8th Cir. 2001) (expert opinion
must be supported by "good grounds" based on what is known). BNSF's
arguments go to the weight, not admissibility, of the evidence, and the
railroad was free to explore such issues on cross-examination. BNSF's motion
to exclude the causation testimony will be denied.
Testimony regarding disability
BNSF seeks to exclude testimony regarding Dr. Spethman's May 2014
assessment, in which he concluded that Logsdon was permanently disabled
from work. Filing 107-7 at 6.4 According to BNSF, such testimony is not
reliable because Dr. Spethman "did not perform any functional capacity exam
or testing to identify [Logsdon's] restrictions or vocational capabilities." Filing
BNSF also objects to testimony regarding Logsdon's functional capabilities or restrictions
from Dr. Annest, Dr. Feldman, and Dr. Gardner. Filing 106 at 20. Logsdon does not object
to that portion of BNSF's motion, see filing 113 at 26, so it will be granted.
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106 at 6. Rather, BNSF argues, Dr. Spethman's assessment was based solely
"on his failure to identify a cause for plaintiff's symptoms." Filing 106 at 19.
The foundation for Dr. Spethman's opinion regarding disability is
clearly insufficient to support admissibility. Indeed, as Dr. Spethman
acknowledged in his deposition, he does not know the mechanics of Logsdon's
injury, did not render a diagnosis, does not know what type of work Logsdon
did at BNSF, and did not undertake any type of inquiry to analysis of
Logsdon's functional capacity or vocational capabilities. Thus, any testimony
or exhibits from Dr. Spethman regarding Logsdon's alleged disability will be
Opinions regarding RSD or CRPS
BNSF moves to exclude testimony "as to a possible underlying
diagnosis of [reflex sympathetic dystrophy] or [complex regional pain
syndrome] from Dr. Annest and Dr. Feldman[.]" Filing 106 at 21. Logsdon
acknowledges that none of his treating physicians have testified to such
conditions, and he therefore does not dispute BNSF's request. Filing 113 at
27. Accordingly, BNSF's motion on those grounds will be granted.
Therefore, the parties' motions will be granted in part, and denied in
part, as set forth above. The parties may renew their objections, if applicable,
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IT IS ORDERED:
BNSF's motion to exclude non-retained expert testimony
(filing 105) is granted in part, and denied in part, as set
BNSF's motion in limine (filing 172) is granted in part, and
denied in part, as set forth above.
retaliation (filing 174) is denied without prejudice to
reassertion at trial.
determinations" (filing 175) is granted.
BNSF's motion in limine regarding medical bills or
expenses (filing 184) is granted.
Logsdon's motion in limine (filing 191) is granted in part,
and denied in part, as set forth above.
Dated this 25th day of August, 2017.
BY THE COURT:
John M. Gerrard
United States District Judge
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