Hopkins et al v. National RailRoad Passenger Corporation
Filing
110
MEMORANDUM & ORDER: The court finds that: Plaintiffs' motion to preclude electric chair evidence (Dkt. 81 ) is GRANTED.(See supra Part III.A.3.) The court RESERVES ruling on Plaintiffs' motion to preclude various hearsayitems (Dkt. 82 ). (See supra Part III.A.2.) Plaintiffs' motion to exclude evidence of Hopkins's comparative negligence(Dkt. 83 ) is GRANTED in part and DENIED in part. (See supra Part III.A. 1.ii.a.)Specifically, Defendants will be permitted to offer ev idence of Hopkins'sdrunkenness on the night of the accident (see supra Part III.A.1.ii.a.i), Hopkins sneaking past a security guard at a bar (see supra Part III.A.1.ii.a.iii), and Hopkins storming out of his friend's home at 4 a.m. (see supra Part III.A.I.ii.a.iv). Defendants are not permitted to offer evidence that Hopkins urinated in public on the night of the accident. (See supra Part III.A. I.ii.a.ii.) Defendants' omnibus motion (Dkt. 84 ) is GRANTED in part, DENI ED in part, and RESERVED in part. (See supra Part III.B.) Specifically, Gill is permitted to offer his opinions based on the Klein/Birdwell Incident to the jury (see supra Part III.B.1.i), and Plaintiffs are permitted to introduce th e Benji Incident (see supra Part III.B.2), local agency investigation reports, subject to objection at trial (see Supra Part III.B.4 ), railroad safety manuals and industry literature, subject to objection at trial (see supra Part III.B .5), and Morse's opinions at the liability phase (see supra Part III.B.9) to the jury. Plaintiffs are not permitted to disclose the facts of the Klein/Birdwell Incident to the jury (see supra Part III.B.l.ii), nor are Plainti ffs permitted to introduce Exhibits 54 and 87 (see supra Part.III.B.3), or contracts regarding South Station to the jury (see supra Part.III.B.7). Finally, the court reserves ruling on the admissibility of various government repor ts and literature (see supra Part.III.B.6) and the "day in the life video" and before and after photographs (see supra Part.III.B.8). Plaintiffs' request to reconsider the admissibility of other prior incidents (Dkt. 92 ) is DENIED. (See supra Part.III.B.2.i.) Plaintiffs' motion to exclude evidence concerning Hopkins's knowledge of electrical danger (Dkt. 87 ) is DENIED. (See supra Part III.A. l.ii.b.) Plaintiffs' motion to preclude state case pleadings (Dkt. 88 ) is GRANTED. (See supra Part III.A.4.) Plaintiffs' motion to exclude evidence of Hopkins's drinking and marijuana use (Dkt. 89 ) is GRANTED in part and DENIED in part. (See supra Part III.A. l.ii.c.) Specifically, ev idence of Hopkins's prior drinking is admissible but evidence of Hopkins prior marijuana use is not. Plaintiffs' motion to exclude text messages and phone records (Dkt. 90 ) is DENIED. (See supra Part III.A.1.ii.d.) Defendants' motion to preclude testimony of Michael Morse from the liability phase of trial (Dkt. 99 ) is DENIED. (See supra Part III.B.9.) So Ordered by Judge Nicholas G. Garaufis on 4/29/2016. (Lee, Tiffeny)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------------------)(
BRIAN HOPKINS, LIANA HOPKINS, and
SEAN HOPKINS,
MEMORANDUM & ORDER
Plaintiffs,
08-CV-2965 (NGG) (RML)
-againstNATIONAL RAILROAD PASSENGER
CORPORATION a/k/a AMTRAK and
MASSACHUSETTS BAY TRANSPORTATION
AUTHORITY,
Defendants.
---------------------------------------------------------------------)(
NICHOLAS G. GARAUFIS, United States District Judge.
Before the court are the parties' respective pre-trial motions in limine. (See Pls.' Mot. in
Lim. to Preclude Electric Chair Evidence (Dkt. 81 ); (Pls.' Mot. in Lim. to Preclude Various
Hearsay Items (Dkt. 82); Pls.' Mot. in Lim. to Exclude Evidence of Brian Hopkins's
Comparative Negligence (Dkt. 83); Not. of Defs.' Omnibus Mot. in Lim. (Dkt. 84); Pls.' Mot. in
Lim. to Exclude Evidence Concerning Brian Hopkins's Knowledge of Electrical Danger
(Dkt. 87); Pls.' Mot. in Lim. to Preclude State Case Pleadings (Dkt. 88); Pls.' Mot. in Lim. to
Exclude Evidence of Brian Hopkins's Drinking and Marijuana Use (Dkt. 89); Pls.' Mot. in Lim.
to Exclude Text Messages and Phone Records (Dkt. 90); Defs.' Mot. in Lim. to Preclude
Testimony of Michael Morse from the Liability Phase of Trial (Dkt. 99).)
For the reasons stated below, the court holds as follows:
•
Plaintiffs' motion to preclude electric chair evidence (Dkt. 81) is GRANTED.
(See infra Part 111.A.3.)
•
The court RESERVES ruling on Plaintiffs' motion to preclude various hearsay
items (Dkt. 82). (See infra Part 111.A.2.)
1
•
•
Defendants' omnibus motion (Dkt. 84) is GRANTED in part, DENIED in part,
and RESERVED in part. (See infra Part III.B.)
•
Plaintiffs' motion to exclude evidence concerning Brian Hopkins' s knowledge of
electrical danger (Dkt. 87) is DENIED. (See infra Part IIl.A.1.ii.b.)
•
Plaintiffs' motion to preclude state case pleadings (Dkt. 88) is GRANTED. (See
infra Part IIl.A.4.)
•
Plaintiffs' motion to exclude evidence of Brian Hopkins's drinking and marijuana
use (Dkt. 89) is GRANTED in part and DENIED in part. (See infra Part
III.A. l.ii.c.)
•
Plaintiffs' motion to exclude text messages and phone records (Dkt. 90) is
DENIED. (See infra Part III.A. l.ii.d.)
•
I.
Plaintiffs' motion to exclude evidence of Brian Hopkins' s comparative negligence
(Dkt. 83) is GRANTED in part and DENIED in part. (See infra Part IIl.A.1.ii.a.)
Defendants' motion to preclude testimony of Michael Morse from the liability
phase of trial (Dkt. 99) is DENIED. (See infra Part IIl.B.9.)
BACKGROUND
The court assumes familiarity with the underlying facts, but will briefly describe the facts
that are relevant to these motions. The court refers to its Summary Judgment Decision for
additional factual background. (See Sumrn. J. Mem. & Order ("Summary Judgment Decision")
(Dkt. 58) at 1-6.)
In the early morning of July 9, 2006, Plaintiff Brian Hopkins 1 was extremely intoxicated.
(Id. at 2, 3.) At approximately 4:00 a.m., Hopkins climbed on top of a train parked at South
Station in Boston. (Id. at 2.) Although witnesses saw Hopkins in South Station, no witness saw
Hopkins climb on top of the train. (Id. at 3.) Hopkins himself has no memory of the events of
the night. (kl) While on top of the train, Hopkins came into contact with an electrified catenary
1
The court will refer to Brian Hopkins as Hopkins.
2
wire, resulting in a severe shock. (Id.) The train upon which Hopkins was found was not
scheduled to leave the station until the early afternoon. (IQ, at 4.)
South Station is operated by the Massachusetts Bay Transportation Authority ("MBTA"),
although the National Railroad Passenger Corp. ("Amtrak") energizes and operates the electric
rails that run through the station. (Id. at 3.) It is Amtrak operating procedure to leave catenary
wires energized at all times unless work requires the power to be turned off. (Id. at 4.)
Accordingly, Amtrak regularly trains its workers regarding catenary wire safety. (Id.) South
Station is patrolled by Amtrak police officers at various times but there is no officer specifically
assigned to the station. (Id.)
II.
LEGAL STANDARD
A.
Motion in Limine
"The purpose of a motion in limine is to allow the trial court to rule in advance of trial on
the admissibility and relevance of certain forecasted evidence." Gorbea v. Verizon N.Y .. Inc.,
No. l l-CV-3758 (KAM), 2014 WL 2916964, at *I (E.D.N.Y. June 25, 2014) (citing Luce v.
United States, 469 U.S. 38, 40 n.2 (1984); Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996);
Nat'! Union Fire Ins. Co. of Pittsburgh v. L.E. Myers Co. Gm., 937 F. Supp. 276, 283
(S.D.N.Y. 1996)). "Evidence should be excluded on a motion in limine only when the evidence
is clearly inadmissible on all potential grounds." United States v. Paredes, 176 F.
Supp. 2d 179, 181 (S.D.N.Y. 2001). "[C]ourts considering a motion in limine may reserve
decision until trial, so that the motion is placed in the appropriate factual context." Jean-Laurent
v. Hennessy, 840 F. Supp. 2d 529, 536 (E.D.N.Y. 2011) (citing Nat'! Union Fire Ins. Co., 937 F.
Supp. at 287). Further, a district court's ruling on a motion in limine is preliminary and "subject
to change when the case unfolds." Luce, 469 U.S. at 41.
3
B.
General Rules of Admissibility
Federal Rule of Evidence 402 provides that "[r]elevant evidence is admissible unless any
of the following provides otherwise: the United States Constitution; a federal statute; these rules;
or other rules prescribed by the Supreme Court. Irrelevant evidence is not admissible." Fed. R.
Evid. 402. Thus, "unless an exception applies, all '(r]elevant evidence is admissible."' United
States v. White, 692 F.3d 235, 246 (2d Cir. 2012) (quoting Fed. R. Evid. 402). Rule 401
provides that "[e]vidence is relevant if: (a) it has any tendency to make a fact more or less
probable than it would be without the evidence; and (b) the fact is of consequence in determining
the action." Fed. R. Evid. 401. The Second Circuit has characterized this relevance standard as
"very low." See White, 692 F.3d at 246 (quoting United States v. Al-Moayad, 545 F.3d 139, 176
(2d Cir. 2008)). Indeed, "[t]o be relevant, evidence need not be sufficient by itself to prove a fact
in issue, much less to prove it beyond a reasonable doubt." United States v. Abu-Jihaad, 630
F.3d 102, 132 (2d Cir. 2010).
Under Federal Rule of Evidence 403, "(t]he court may exclude relevant evidence if its
probative value is substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence." Fed. R. Evid. 403. "[W]hat counts as the Rule 403 'probative
value' of an item of evidence, as distinct from its Rule 401 'relevance,' may be calculated by
comparing evidentiary alternatives." Old Chiefv. United States, 519 U.S. 172, 184 (1997). In
short, Rule 403 requires "the district court [to] make a conscientious assessment of whether
unfair prejudice substantially outweighs probative value" with regard to each piece of proffered
evidence. Al-Moayad, 545 F.3d at 160 (quoting United States v. Salameh, 152 F.3d 88, 110
(2d Cir. 1998) (per curium)).
4
III.
DISCUSSION
A.
Plaintiffs' Motions
I.
Evidence ofHopkins's Alleged Recklessness
Plaintiffs have filed a number of motions seeking to exclude from trial evidence relating
to Hopkins's conduct and state of mind on the night of the incident. (See Pls.' Mot. in Lim. to
Exclude Evidence of Brian Hopkins's Comparative Negligence ("Comparative Negligence
Motion") (Dkt. 83); Pls.' Mot. in Lim. to Exclude Evidence Concerning Brian Hopkins's
Knowledge of Electrical Danger ("Electrical Danger Motion") (Dkt. 87); Pls.' Mot. in Lim. to
Exclude Evidence of Brian Hopkins's Drinking and Marijuana Use ("Past Alcohol Use Motion")
(Dkt. 89); Pls.' Mot. in Lim. to Exclude Text Messages and Phone Records ('Text Messages and
Phone Records Motion") (Dkt. 90).) Broadly, Plaintiffs argue in each motion that evidence of
Hopkins' s conduct and state of mind is not relevant, because Massachusetts law does not provide
for a comparative recklessness defense. (See, e.g., Comparative Negligence Motion at 2
("[T]here is no concept of comparative recklessness under Massachusetts Law.").) Plaintiffs
further argue that, under Massachusetts law, Defendants are barred from arguing that Hopkins' s
recklessness was the sole proximate cause of his injuries. (Id. at 3-5.) Accordingly, Plaintiffs
contend that evidence concerning Hopkins' s actions and thoughts on the night of the accident are
simply irrelevant. 2
Defendants disagree. They argue that Hopkins's actions and state of mind on the night of
the accident are relevant for three purposes. First, Defendants argue that a plaintiff's
recklessness is a bar to recovery under Massachusetts law. (See Defs.' Opp'n to Pls.' Mots. in
Lim. ("Defs.' Opp'n") (Dkt. 97) at 4-7.) Second, Defendants argue that Hopkins's evidence of
2
Plaintiffs also have a number of more specific objections to certain categories of evidence. The court discusses
those objections below.
5
recklessness is relevant to show that Hopkins recklessness was the sole proximate cause of his
injuries. (Id. at 7-8.) Third, Defendants argue that Hopkins's state of mind is relevant to show
that the overhead wire was an open and obvious danger, and, therefore, no warning was required.
(11 at 8-9.)
The court largely agrees with Defendants. For the reasons explained below, evidence of
Hopkins's conduct and state of mind on the night of the incident is relevant to show(!)
Hopkins's recklessness, (2) Hopkins's role in causing the incident, and (3) the obviousness of the
danger of the live catenary wire. (See infra Parts III.A.i.a-c.) However, certain proffered
evidence is nonetheless inadmissible because it is unduly prejudicial. (See infra Part III.A.ii.)
1.
Legal Principles
a.
Recklessness as a Bar to Recovery under Massachusetts
Law
Plaintiffs argue that "there is no concept of comparative recklessness under
Massachusetts Law." (Comparative Negligence Motion at 2.) 3 Defendants disagree; they
contend that "[a] plaintiff whose conduct is in reckless disregard of his own safety is barred from
recovery against a defendant whose reckless disregard of the plaintiffs safety is a legal cause of
the plaintiffs harm." (Defs.' Opp'n at 4 (quoting Restatement (Second) of Torts
§§ 482(2), 503(3) (1965)).) If Plaintiffs are correct, then evidence showing that Hopkins was
reckless would be irrelevant and therefore inadmissible. On the other hand, if Defendants are
correct, then evidence showing that Hopkins was reckless is relevant to prove a valid defense.
3 Plaintiffs frame much of their argument in terms ofHopkins's negligence. (See Comparative Negligence Motion
at 1-2.) They are correct that Hopkins's negligence is not a defense to Defendants' alleged recklessness. Zeroulias
v. Hamilton Am. Legion Assocs., Inc., 705 N.E.2d 1164, 1166 (Mass. App. Ct. 1999) ("The comparative negligence
statute does not apply to intentional or wilful, wanton, or reckless conduct."). Nonetheless, the same evidence may
(and often does) implicate both negligence and recklessness. (Daubert Decision (Dkt. 73) at 19-20 (explaining how
Massachusetts courts use the same evidence to examine both negligence and recklessness).)
6
This is not an easy question. 4 Neither party cites any Massachusetts law in support of
their position. Indeed, Defendants acknowledge that "[n]o Massachusetts court has formally
adopted (or rejected) Restatement Section 503(3) [on contributory recklessness]." (Id. at 4 n.3.)
Moreover, nationally, "[t]he courts that have confronted [this] issue have split on the outcome,
some holding that recklessness is a bar to recovery under comparative fault and some, perhaps a
small majority, holding that it is not." Jim Hasenfus, The Role of Recklessness in American
Systems of Comparative Fault, 43 Ohio St. L.J. 399, 401 (1982). Nonetheless, the court
concludes that generally, under Massachusetts law, a plaintiffs reckless conduct will bar
recovery against a reckless defendant. 5
At common law, a plaintiffs recklessness generally was a complete bar to recovery
against a reckless defendant. Restatement (Second) of Torts §§ 482(2), 503(3); Restatement
(First) of Torts§ 482 (1934) ("In order that the plaintiffs conduct may bar him from recovery, it
is necessary that he not only know of the defendant's reckless conduct but also realize the gravity
of the risk involved therein so that he is not only umeasonable but reckless in exposing himself
to it."); W. Page Keeton et al., Prosser & Keeton on Torts 462 (5th ed. 1984). Massachusetts
followed the common law rules. See, e.g., Pridgen v. Boston Housing Auth., 308
N.E.2d 467, 473 (Mass. 1974) (citing Sections 500-503 of the Restatement (Second)); Aiken v.
Holyoke St. Ry. Co., 68 N.E. 238, 240 (Mass. 1903) ("There are expressions in some of the
4
Indeed, the court reserved ruling on this question at the Summary Judgment phase. (See Summary Judgment
Decision at 16 ("Defendants' authority concerning the state of comparative negligence and a plaintiffs criminal
conduct as a bar to recovery address only claims of negligence. Defendants do not provide any Massachusetts law
for the proposition that these rules apply in the recklessness context, and the court is aware of no such authority.
The court cannot, without more, extend principles governing recovery in negligence to apply to Plaintiffs' claims of
recklessness." (internal citations omitted).)
5 The common law had a number of rules that mitigated the harshness of the contributory negligence and
contributory recklessness doctrines by allowing negligent or reckless plaintiffs to recover in certain situations. For
example, the last clear chance doctrine allowed a negligent plaintiff to recover despite his own negligence where the
defendant had the last clear chance to prevent the harm. (See Restatement (Second) of Tort § 480 (1965)).
7
cases which imply the possibility of contributory negligence on the part of the plaintiff in a case
of a wanton and reckless injury by a defendant. If there is a conceivable case in which a
plaintiffs want of due care may directly and proximately contribute as a cause of an injury
inflicted directly and proximately by the willful wrong of another, such a want of care must be
something different from the mere want of ordinary care to avoid an injury coming in a usual
way."). Thus, to accept Plaintiffs' position, the court would have to conclude that Massachusetts
departed from the common law either by statute or by subsequent court decision.
1.
Statute
Plaintiffs' basis for believing that there is no comparative recklessness defense (and
presumably no contributory recklessness defense either) is unclear because Plaintiffs' argument
on the issue consists of a single clause without citation. (See, e.g., Comparative Negligence
Motion at 2.) Nonetheless, it is possible that Plaintiffs believe that because the Massachusetts
legislature abolished contributory negligence, the defense of contributory recklessness was
impliedly abolished as well.
Like most states, Massachusetts has statutorily eliminated the common law contributory
negligence rule. Massachusetts General Law, Chapter 231, Section 85 ("Section 85") provides:
Contributory negligence shall not bar recovery in any action by any
person or legal representative to recover damages for negligence
resulting in death or in injury to person or property, if such
negligence was not greater than the total amount of negligence
attributable to the person or persons against whom recovery is
sought, but any damages allowed shall be diminished in proportion
to the amount of negligence attributable to the person for whose
injury, damage or death recovery is made ....
The defense of assumption of risk is hereby abolished in all actions
hereunder.
The burden of alleging and proving negligence which serves to
diminish a plaintiffs damages or bar recovery under this section
8
shall be upon the person who seeks to establish such negligence, and
the plaintiff shall be presumed to have been in the exercise of due
care.
Mass. Gen. Laws Ann. eh. 231, § 85. Section 85 says nothing about contributory recklessness.
Indeed, Massachusetts courts interpreting Section 85 have made clear that "[t]he comparative
negligence statute is not applicable to intentional or wilful, wanton, or reckless conduct." Boyd
v. Nat'! R.R. Passenger Com., 845 N.E.2d 356, 364 (Mass. 2006); see also Zeroulias, 705
N.E.2d 1164, 1166 (Mass. App. Ct. 1999) ("The comparative negligence statute does not apply
to intentional or wilful, wanton, or reckless conduct."); cf. Flood v. Southland Com., 616
N.E.2d 1068, 1072 (Mass. 1993) ("The strong majority view across the country is that
comparative fault statutes do not apply to intentional tort claims, with exceptions arising
especially where the statute uses terms broader than negligence, such as 'culpable conduct' or
'fault."').
Moreover, basic principles of statutory interpretation counsel against reading Section 85
to apply to recklessness. First, the plain text of the statute says nothing about recklessness. "Our
starting point in statutory interpretation is the statute's plain meaning, ifit has one." United
States v. Dauray, 215 F.3d 257, 260 (2d Cir. 2000); see also Boston Police Patrolmen's Ass'n v.
City of Boston, 761N.E.2d479, 480 (Mass. 2002) ("As always, we interpret the statutory
language according to the intent of the Legislature ascertained from all its words construed by
the ordinary and approved usage of the language, considered in connection with the cause of its
enactment, the mischief or imperfection to be remedied and the main object to be accomplished,
to the end that the purpose of its framers may be effectuated." (internal citations and quotation
marks omitted)). It would defy plain meaning to read the Massachusetts Legislature's reference
to "negligence" to include recklessness. This is especially true because Massachusetts law draws
9
a clear distinction between the two concepts. See Montes v. Mass. Bay Transp. Auth., 843
N .E.2d 611, 615 (Mass. 2006). "Reckless conduct involves a degree of risk and the voluntary
taking of that risk that is so great that, compared with negligent conduct, the difference is not
merely one of degree but of kind." In fact, Massachusetts courts have "been careful to preserve
the distinction between negligence and gross negligence, on the one hand, and wanton or
reckless conduct on the other." Boyd, 845 N.E.2d at 364 (citing Commonwealth v.
Welansky, 55 N.E.2d 902, 911 (Mass. 1944)).
Second, because legislatures are presumed to legislate against the backdrop of the
common law, courts will not interpret statutes to abrogate the common law unless the intent to
do so is clear. See, e.g., United States v. Texas, 507 U.S. 529, 534 (1993); United States v.
Federative Republic of Brazil, 748 F. 3d 86, 96 (2d Cir. 2014); Commonwealth v. George W.
Prescott Pub. Co., LLC, 973 N.E.2d 667, 675 (Mass. 2012); Riley v. Davison Constr. Co., 409
N.E.2d 1279, 1283 (Mass. 1980). Here, the Massachusetts Legislature evidenced no intent to
change the common law rules concerning a reckless plaintiff.
Accordingly, the court concludes that Section 85 does not abridge the common law rules
concerning contributory recklessness.
11.
Case Law
It appears that no Massachusetts case has explicitly addressed whether contributory
recklessness remains the law. (Defs.' Opp'n at 4 n.3.) See also Hasenfus, supra, at 399
(surveying state practice). However, the court concludes that it likely does remain good law for
five reasons.
First, although the issue has not been squarely decided, Massachusetts courts have
indicated that contributory recklessness remains Massachusetts law. Following the enactment of
10
Section 85, the Supreme Judicial Court approvingly cited Sections 500 to 503 of the Restatement
(Second). See Pridgen, 308 N.E.2d at 473. Importantly, Section 503(3) codifies the contributory
recklessness rule. See Restatement (Second) of Torts§ 503(3) (1965). The court recognizes that
Pridgen's endorsement of Section 503(3) is weak. Contributory recklessness was not at issue
there and the Pridgen court refers to the entire Restatement chapter on recklessness. However,
given the dearth of Massachusetts case law in this area, the court believes that Massachusetts
would likely follow the path set by Pridgen ifthe issue were to squarely arise.
Second, Massachusetts' s approach to cases where a plaintiffs criminal conduct causes
his or her own harm suggests that a plaintiffs own recklessness remains a bar to recovery. In
Ryan v. Hughes-Ortiz, 959 N.E.2d !OOO (Mass. Ct. App. 2012), the plaintiff stole the
defendant's gun and then accidentally shot himself. Id. at 1004. The appeals court held that
Massachusetts's public policy precluded recovery because the plaintiff had stolen the gun at
issue. Id. Critically, in support of its decision, the court cited Restatement (Second)
Section 889, Comment b. Id. at 1005. Comment b provides in relevant part that "[c]riminal
conduct that by virtue of statutory interpretation or otherwise constitutes negligence or
recklessness, is a defense to an action for harm caused by corresponding negligence or
recklessness of another, under the rules stated with reference to contributory negligence and
contributory recklessness in§§ 463- 484 and 502 and 503." Restatement (Second) of
Torts§ 889, cmt. b (1979). 6 Thus, Comment bis simply a specific application of the
6
Section 85 provides that "[t]he violation ofa criminal statute, ordinance or regulation by a plaintiff which
contributed to said injury, death or damage, shall be considered as evidence of negligence of that plaintiff, but the
violation of said statute, ordinance or regulation shall not as a matter of law and for that reason alone, serve to bar a
plaintiff from recovery." Mass. Gen. Laws Ann. eh. 231, § 85. However, that statement has been interpreted to
"nevertheless allow[] for exceptions where, ... the decision to bar the cause of action is based not only on the
plaintiff's violation ofa criminal statute, but also on public policy considerations." Ryan, 959 N.E.2d at 1004; see
also Flanagan v. Baker, 621 N.E.2d 1190, 1193 (Mass. App. Ct. 1993) ("[W]e think§ 85 could also be construed as
allowing for some exceptions. It reasonably could be argued that, by using the words 'as a matter of law and for that
reason alone,' the Legislature intended that a lawbreaker could be barred from recovery where reasons in addition to
11
contributory recklessness rule in the context of criminal conduct. Accordingly, because
Comment b reflects the law in Massachusetts, the court believes that contributory recklessness
likely remains the law as well. The court recognizes that this result is not necessarily the case.
For example, Section 85 eliminated the general contributory negligence rule but did not
eliminate the specific rule articulated in Section 889 as it related to negligent criminal conduct.
Ryan, 959 N.E.2d at 1004. Accordingly, Plaintiffs could argue that despite the continued
viability of Comment b, the general contributory recklessness rule has been abolished.
Nonetheless, the court believes that because contributory recklessness survives in Massachusetts,
specifically where the plaintiff engages in criminal conduct, it more likely than not survives
generally as well, especially absent contrary evidence of specific legislative intent.
Third, Massachusetts' s approach to cases where the plaintiff is negligent but the
defendant is reckless indicates that recklessness remains a bar to recovery. At common law, a
reckless defendant could not benefit from a plaintiff's negligence. See Restatement (Second) of
Torts § 503(1 ); Potter v. Gilmore, 184 N.E. 373, 376 (Mass. l 933)("And negligence of a
plaintiff is not a bar to recovery for injury caused by the defendant's wilful, wanton or reckless
conduct."). Massachusetts courts continue to apply this rule. See Lane v. Meserve, 482
N.E.2d 530, 532 n.6 (Mass. Ct. App. 1985) ("The judge was correct in instructing the jury that
they were not to take Lane's negligence into account if they found employees of the defendant
had engaged in wilful or wanton misconduct."). The fact that Massachusetts continues to follow
the common law with regard to some principles of allocation of fault among reckless parties
the criminality of the conduct exist, such as public policy considerations. If§ 85 is read in this manner, purpose is
given to those words, which might otherwise be surplusage. A burglar who breaks his leg while descending the
cellar stairs, due to the failure of the owner to replace a missing step, could be denied recovery for public policy
considerations." (internal quotation marks and citation omitted)).
12
suggests that Massachusetts likely continues to follow the common law contributory recklessness
rule.
Fourth, Massachusetts's continued application of traditional contributory rules in the
context of intentional torts supports the court's conclusion that contributory recklessness remains
Massachusetts law. In the context of intentional torts, Massachusetts courts have rejected the
application of comparative fault. Flood, 616 N.E.2d at 1071 ("Ifa defendant's misconduct was
intentional, that misconduct is not involved in the application of§ 85."); Aiken, 68 N.E. at 239
("In an action to recover damages for an assault and battery it would be illogical and absurd to
allow as a defense proof that the plaintiff did not use proper care to avert the blow.").
Massachusetts has traditionally treated recklessness as more similar to intentional acts than to
negligence. See, e.g., Sandler v. Commonwealth, 644 N.E.2d 641, 643 (Mass. 1995)
("According to our cases, the degree ofrisk that will warrant a finding of reckless conduct can
involve an imputation of intentional conduct to a person who in fact did not realize the gravity of
the danger."); Aiken, 68 N.E. at 239 ("In these cases of personal injury there is a constructive
intention as to the consequences, which, entering into the willful, intentional act, the law imputes
to the offender, and in this way a charge which otherwise would be mere negligence becomes, by
reason ofa reckless disregard of probable consequences, a willful wrong."). Thus, because
Massachusetts treats recklessness as more similar to intentionality, the court believes that
Massachusetts is unlikely to have abandoned the contributory recklessness defense.
Finally, Plaintiffs' proposed rule has no support in the history of tort law. Under
Plaintiffs' reading of Massachusetts law, a plaintiff who alleges that a defendant was reckless
can completely bar an inquiry into their own conduct. This has never been the case. Indeed,
neither the common law contributory rules nor modem comparative regimes completely insulate
13
a plaintiffs conduct from any inquiry where the plaintiff and the defendant are alleged to have
engaged in the same quantum ofbehavior (i.e. negligent plaintiffvs. negligent defendant or
reckless plaintiffvs. reckless defendant). See, e.g., Restatement (Third) of Torts: Apportiomnent
Liab. §§ 3, 7 (2000) (providing for apportiomnent of harm between mutually reckless parties);
Restatement (Second) of Torts§ 503(3) (providing that a plaintiffs recklessness bars recover
against a reckless defendant)). In fact, the only time that a plaintiff's conduct is insulated from
inquiry is when the defendant is alleged to have engaged in a more egregious type of conduct
than the plaintiff (i.e. negligent plaintiff vs. reckless defendant or negligent plaintiff vs.
intentional defendant). See, e.g., Restatement (Second) of Torts§ 503(1). Yet, Plaintiffs'
proposed rule would allow for no inquiry at all into a plaintiffs behavior, even in a case where
both sides allege the same quantum of behavior; there is no support for such a rule.
Thus, the court concludes that generally a plaintiffs own recklessness remains a bar to
recovery under Massachusetts law. Accordingly, the Defendants are permitted to introduce
evidence tending to show that Hopkins engaged in reckless conduct, which caused his own
lllJUry.
b.
Sole Proximate Cause
In addition, Defendants argue that Hopkins' s conduct on the night in question is relevant
because "[h]is claim may also fail ifthe jury finds that his conduct was unforeseeable and a sole
or superseding proximate cause of his injuries." (Defs.' Opp'n at 4.) Defendants are correct.
"Under Massachusetts law, a superseding intervening cause can, as a matter oflaw, constitute
the sole proximate cause where the intervening events have broken the chain of factual causation
or, if not, have otherwise extinguished the element of proximate cause and become a superseding
14
cause of the harm." White v. Raytheon Co., No. 07-CV-10222 (RGS), 2008 WL 5273290, at *4
n.5 (D. Mass. Dec. 17, 2008) (internal citations and quotation marks omitted).
Plaintiffs' arguments to the contrary are unavailing. Plaintiffs first argue that because
they must show that Defendants' conduct was a proximate cause of Hopkins' s injuries to recover
there is no reason for Defendants to introduce evidence of other potential causes. (Comparative
Negligence Mem. at 3-4.) Apparently, Plaintiffs believe that, because if they prove their
affirmative case they will have demonstrated proximate cause, there is no reason for Defendants
to raise alternative causes. (Id. at 4.) The court disagrees. "It is elemental that a plaintiff may
recover from a defendant in negligence only ifhe proves that the defendant's breach ofa duty of
care owed to the plaintiff proximately caused the plaintiff's injuries. It is equally elemental that
the defendant may seek to avoid liability by offering evidence tending to disprove the existence
of any duty, breach, cause, or injury." Correia v. Firestone Tire & Rubber Co., 446
N.E.2d 1033, 1038 (Mass. 1983). Thus, "the general rule [is] that a defendant's demonstration
that the sole proximate cause of an injury lies elsewhere is a defense against negligence claims."
Allen v. Chance Mfg. Co., 873 F.2d 465, 4 71 (I st Cir. 1989). The reason for this rule is that to
prove a negligence claim, a plaintiff must show that the defendant's actions were the proximate
cause of plaintiff's injury. See Colter v. Barber-Green Co., 525 N.E.2d 1305, 1313 (Mass. 1998)
(distinguishing the elements of a negligence claim from a breach of warranty claim). If the
defendant can show that some other actor is the sole proximate cause of plaintiffs injury,
plaintiff's claim necessarily fails. Allen, 873 F.2d at 471 (noting that a finding that the sole
proximate cause defense did not apply to negligence causes would be "intuitively implausible").
Accordingly, Massachusetts courts routinely dismiss negligence actions when a defendant can
show that the plaintiff's injuries were caused entirely by some other actor. See, e.g., Brillante v.
15
United States, 449 F. Supp. 597, 600 (D. Mass. 1978) ("!rule that defendant has sustained the
burden of showing by a preponderance of the evidence that plaintiff's injury was proximately
caused by his own negligence and that moreover plaintiffs negligence was the sole proximate
cause of the accident."); cf. Boston & M. R.R. v. Meech, 156 F.2d 109, 111-12 (lst Cir. 1946)
("Also we think it evident from what we have said that although the decedent could readily have
taken more care than he did for his own safety ... still we cannot say that as a matter of law his
carelessness was the sole proximate cause of the accident.").
Massachusetts courts apply the same logic to recklessness claims because recklessness
also requires a showing of causation. See Malaquias v. Borges, No. 20071849B, 2010
WL 1077083, at *4 (Mass. Super. Ct. Feb. 16, 2010) (discussing causation in the context ofa
recklessness claim); Spagnulo v. Com., Dep't ofEnvtl. Mgmt., No. 2003191, 2006 WL 1238671,
at *5 (Mass. Super. Ct. Mar. 15, 2006) ("[M]any variables exist in the nexus between failure to
take precautions and the plaintiffs injury. Passage of time, obviousness of the danger, the
chances of this type of specific types of injury occurring, and intervening/supervening causes
between the actor's conduct and the injury, deem it a rare case where failure to take precautions
results in a recklessness finding." (emphasis added)). Indeed, Massachusetts courts consider
whether other actors, including the plaintiff, caused their own harm when assessing causation in
the context ofrecklessness. See Ali v. City of Boston, 804 N.E.2d 927, 932 (Mass. 2004)
("Therefore, we cannot say that the city acted recklessly in expecting that the public would take
particular care in navigating after dark on roads in a park that, as the plaintiff well knew,
contained traffic gates."); Siver v. At!. Union Coll., 154 N.E.2d 360, 364 (Mass. 1958) ('The
accident to the child was caused not by improper construction or location of the pit but by the
removal of the cover by some third person."). Plaintiffs' argument boils down to the position
16
that they should be allowed to prove their case, but that Defendants should be forbidden form
proving their defense. This cannot be.
Plaintiffs also contend that the sole proximate cause theory is largely a creature of
products liability law. (Comparative Negligence Mem. at 4-5.) Plaintiffs' second argument adds
nothing. Plaintiffs are correct that usually the sole proximate cause defense has been employed
in the context of products liability. (See Comparative Negligence Mem. at 4-5.) But, the mere
fact that the sole proximate cause defense is most commonly used in the context of products
liability says nothing about whether the defense is available here. In fact, as explained above,
Massachusetts courts allow a reckless defendant to argue that another actor caused the plaintiff's
injury. Indeed, Plaintiffs themselves have taken the position that Defendants' sole proximate
cause theory should be presented to the jury. (Pls.' Opp'n to Defs' Mot. for Summ. J. (Dkt. 48)
at 24-25 (arguing that a jury should decide whether Hopkins's injuries were solely caused by his
own conduct).
Therefore, the court concludes that the sole proximate cause defense is a valid defense to
Plaintiffs' claims.
c.
Open and Obvious Danger
Finally, Defendants argue that evidence ofHopkins's knowledge of the danger of
electrical wires is relevant to whether Defendants had a duty to warn. (Defs.' Opp'n at 8.)
Defendants are correct. Under Massachusetts law, "Landowners are relieved of the duty to warn
of open and obvious dangers on their premises because it is not reasonably foreseeable that a
visitor exercising (as the law presumes) reasonable care for his own safety would suffer injury
from such blatant hazards." O'Sullivan v. Shaw, 726 N.E.2d 951, 954-55 (Mass. 2000). This
principle applies with equal force to recklessness claims. See Beausoleil v. Mass. Bay Transp.
17
Auth., 138 F. Supp. 2d 189, 207 (D. Mass.); Shattuck v. Trs. of Boston Univ., No. 03635, 2010
WL 3232296, at *2 (Mass. Super. Ct. Aug. 3, 2010). Thus, evidence ofHopkins's knowledge of
the risks posed by electrical wires is relevant to whether Defendants recklessly failed to warn
Hopkins of the risk posed by catenary wires. This evidence is in turn relevant because Plaintiffs
allege that Defendants recklessly failed to post warnings about the risk posed by the catenary
wire. (Summary Judgment Decision at 21 ("According to Plaintiffs, Defendants were reckless
because they left the train at the station under the catenary wire all night; they failed to turn off
the electricity to the catenary wire though it was possible to do so; they failed to secure the track
area; and they failed to issue any warnings with respect to the catenary wire.").)
n.
Application
Having concluded that Hopkins's state of mind and conduct on the night of the accident
are relevant, the court must examine the specific evidence that Defendants proffer to determine if
it is admissible.
a.
Hopkins' s Prior Conduct on the Night of the Accident
Defendants wish to introduce evidence showing that on the night of the accident Hopkins
(I) consumed large amounts of alcohol, (2) urinated in public despite his friends warning him
that doing so was illegal, (3) snuck past security to enter a bar, and (4) stormed out of his friend's
apartment in anger close to 4:00 a.m. with no place to go and over the objections of his friend. 7
(Defs.' Opp'n at 9.) Defendants argue that this evidence has two purposes. First, they contend
that each proffered fact tends to make it more likely that Hopkins recklessly caused his own
7
Defendants also wish to introduce other facts regarding Hopkins conduct on the night in question. (Defs.' Opp'n
at 9.) The court defers ruling on whether these facts would be admissible. Without knowing what other evidence
Defendants wish to introduce, the court cannot decide if the evidence is admissible.
18
injury. (Id.) Second, they argue that each fact makes it more likely that Hopkins would have
ignored or evaded the safety measures that Plaintiffs suggest were required. (Id.)
Each purpose is relevant. As explained above, evidence that tends to show that Hopkins
recklessly endangered his own safety is relevant. Likewise, evidence concerning whether
additional safety measures would have been effective is relevant to breach and causation. See
Boyd, 845 N.E.2d at 364 (noting that to succeed on a recklessness claim a plaintiff must show
that the defendant created an unreasonable risk).
Plaintiffs argue that even if each purpose is theoretically relevant, they are not relevant
here because "nobody knows the reason Brian Hopkins ascended the train." (Comparative
Negligence Mot. at 3.) Plaintiffs' argument is baffling. Defendants are permitted to introduce
evidence that "has any tendency to make a fact more or less probable than it would be without
the evidence" so long as "the fact is of consequence." Fed. R. Evid. 401. Hopkins purpose for
climbing the train is relevant to a recklessness analysis. See Montes, 843 N .E.2d at 615 (noting
that reckless conduct involves the voluntary taking of a grave risk). Likewise, whether-given
Hopkins' s mental and physical states-additional security measures could have prevented the
injury is relevant to, among other things, assessing breach and causation. True, the evidence that
Defendants have proffered regarding Hopkins' s mental and physical state is not open and shut,
but it need not be under the Federal Rules. Thus, the court finds that evidence which tends to
show why Hopkins would have climbed the train or whether additional security measures would
have been effective is relevant.
1.
Hopkins' s Drunkenness
Hopkins' s drunkenness is relevant to both his own recklessness and the likelihood that
additional security measures would have been effective. Neither party contests that drunkenness
19
is relevant to this litigation. Indeed, the parties have stipulated that Hopkins had a blood alcohol
level of2544 mg/L immediately following his electric shock. (Comparative Negligence
Mem. at 2.)
Plaintiffs appear to argue that evidence ofHopkins's drunkenness should be excluded
under Rule 403 because it is unduly prejudicial and cumulative. (Id. at 1-3.) The court
disagrees.
First, evidence ofHopkins's drunkenness is not unfairly prejudicial. Admitting evidence
that directly relates to Hopkins' s recklessness on that night is not unfair. See Highland Capital
Mgmt., L.P. v. Schneider, 55 I F. Supp. 2d I 73, 176-77 (S.D.N.Y. 2008) ("Evidence is
prejudicial under Rule 403 if it 'involves some adverse effect beyond tending to prove the fact or
issue that justified its admission into evidence."' (alteration removed) (quoting United States v.
Gelzer, 50 F.3d 1133, 1139 (2d Cir 1995)). Put another way, Defendants are not seeking to
unfairly suggest that Hopkins was likely to be reckless by attacking his general character;
instead, Defendants seek to introduce evidence about what specific acts Hopkins took on the
night of the accident in order to show that those specific acts were reckless. The court sees no
reason why this use of evidence is unfair.
Second, evidence ofHopkins's drunkenness is not cumulative. "Evidence is cumulative
when it replicates other admitted evidence." United States v. Jami!, 707 F.2d 638, 643
(2d Cir. I 983). Plaintiffs argue that evidence ofHopkins's drunkenness is cumulative because
the parties have stipulated that Hopkins climbed on top of the train and that he had an alcohol
level of2544 mg/L immediately following his electric shock. (Comparative Negligence
Mem. at 2.) Defendants respond that "[w]ithout the proper context [the alcohol level] figure is
meaningless to the jury." (Defs.' Opp'n at I I.) The court agrees with Defendants. Parties are
20
usually free to add relevant color in place of stipulated facts because "[a] syllogism is not a story,
and a naked proposition in a courtroom may be no match for the robust evidence that would be
used to prove it." Old Chiefv. United States, 519 U.S. 172, 189 (1997). This concern is
particularly acute here, where the court believes that the stipulation does not provide the jury
much information at all. It seems highly unlikely that a juror will understand what an alcohol
level of2544 mg/L means. Instead, evidence ofHopkins's drinking and behavior are much more
likely to provide the jury context concerning Hopkins' s actions and state of mind at the time of
the accident. Plaintiffs are certainly right that there is some limit to the amount of drunkenness
testimony that can be put on-this is, after all, not a trial about how drunk Hopkins was-but the
court cannot say precisely where that line is until Defendants begin to elicit testimony.
Nonetheless, the line certainly extends beyond the parties' stipulation.
Thus, the court concludes that evidence concerning Hopkins drunkenness is admissible.
11.
Public Urination
Defendants argue that Hopkins's urination in an alley, following his friends warning him
that doing so was unlawful, is probative to whether Hopkins was likely to take risks or whether
Hopkins was likely to heed warnings. (Defs.' Opp'n at 9.) The court finds both propositions
dubious. First, because public urination and climbing on top of a train present different types of
risk, evidence that an individual took the former risk offers very little evidence about their
mental state with regard to the latter. The risks associated with public urination are quite
different from the risks associated with climbing on top of a train. Public urination risks criminal
enforcement. See Commonwealth v. McGillivary, 967 N.E.2d 651 (Mass. App. Ct. 2012) (table)
(noting that the Defendant had been arrested for open and gross lewdness following his public
urination). Importantly, unlike climbing on top of a train, public urination generally does not
21
risk physical hann. Second, verbal warnings from a friend concerning public urination differ
considerably from posted warnings of electrical danger. Accordingly, the court finds that, to the
extent it is relevant at all, evidence ofHopkins's public urination is minimally relevant.
By comparison, evidence of public urination is likely prejudicial. See, e.g., United States
v. Honken, 378 F. Supp. 2d 970, 985 (N.D. Iowa 2004) (The unfair prejudice from this evidence,
as the government suggests, is that the jury will make a determination of [the witness's]
credibility on the improper, emotional basis of a reaction to the nature of his instances of
indecent exposure."); McGillivarv, 967 N.E.2d at 651 ('The judge concluded that counsel had
not been ineffective because this evidence [of an arrest for public urination] would have gravely
prejudiced the defendant.").
Accordingly, the court finds that evidence ofHopkins's public urination is inadmissible.
m.
Sneaking into a Bar
Defendants argue that Hopkins's sneaking past security to enter a bar, is probative to
whether Hopkins would likely have been affected by additional security at the train station.
(Defs.' Opp'n at 9.) 8 The court agrees, the fact that Hopkins avoided security guards on the
night of the accident loudly speaks to what his likely mental state would have been had he
confronted a security guard at South Station. That is, there is sufficient similarity between the
mental state associated with avoiding a security guard at a bar and the mental state associated
with avoiding a security guard at a train station that the former provides circumstantial evidence
of the latter. Thus, the court concludes that evidence that Hopkins snuck into a bar is relevant.
8
Evidence that Hopkins snuck past a security guard is not admissible as direct evidence that Hopkins was likely to
engage in reckless conduct. Much like with public urination, the risks associated with sneaking into a bar are so
different from the risks associated with climbing on top of a train, that the evidence is not relevant.
However, because there is a permissible purpose for its use, the evidence is admissible. If Plaintiffs request it, the
court will consider a limiting instruction.
22
Moreover, evidence that Hopkins snuck into a bar is not unfairly prejudicial. Indeed,
Plaintiffs have not even suggested why evidence that Hopkins snuck into a bar would be
prejudicial.
Likewise, because of the similarity between avoiding a security guard at a bar and
avoiding a security guard at a train station, the sneaking into a bar evidence does not pose a
Rule 404 problem. Rule 404(b )(2) permits prior crimes, wrongs, or acts to be admitted to show
"motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack
of accident." Fed. R. Evid. 404(b)(2). Here, where the allegedly wrongful prior act (sneaking
past a guard) occurred on the same night as the accident and involved the same means (avoiding
security), the court believes that the permissible uses of the evidence strongly outweigh any
prejudice.
Accordingly, the court concludes that evidence regarding Hopkins avoiding security at a
bar on the night of the accident is admissible. 9
1v.
Storming Out of Friend's House
Finally, Defendants seek to admit evidence that on the morning of the accident Hopkins
stormed out of his friend's home at 4 a.m., over the pleas and objections of his friends. 10 (Defs.'
Opp'n at 9.) This evidence is highly relevant. It is nearly contemporaneous evidence concerning
Hopkins's motive and state of mind immediately before he climbed on top of the train. It thus
9
The court further finds that the sneaking-into-a-bar-evidence is critically different from the public-urination-
evidence in two ways. First, security guards at a bar are unlikely to be materially different from security guards at a
train station. Unlike the difference between a verbal warning from a friend and a posted warning, the mechanism by
which security guards interdict wrongful conduct is likely to be similar. Thus, the sneaking-into-a-bar-evidence is
more probative. Second, evidence that Hopkins snuck into a bar is less prejudicial. The court believes that a jury is
more likely to have a direct adverse reaction to evidence that Hopkins urinated in public than to evidence that
Hopkins snuck past a security guard at a bar (that he could have legally entered anyway).
10 The text messages from Peter Arhangelsky and Hopkins's phone records may be some of the evidence that could
be offered on this point. The court addresses the admissibility of those pieces of evidence below. (See infra Part
III.A. l .ii.d.)
23
speaks strongly to whether Hopkins was reckless and whether Hopkins could have been
dissuaded from climbing the train. That is, upon hearing evidence that Hopkins stormed out of
his friend's house, in the early morning, with nowhere to go, just before the incident occurred,
the jury could infer that Hopkins's was mentally set on engaging in risky behavior.
Moreover, evidence that Hopkins left his friend's house at 4 a.m. is not unfairly
prejudicial. "Rule 403 is for weeding out 'unfair' prejudice-prejudice not related to the actual
merits of the case in suit." U.S. Bank Nat. Ass'n v. PHL Variable Life Ins. Co., 112 F.
Supp. 3d 122, 155 (S.D.N.Y. 2015). As explained above, evidence ofHopkins's mental state
when he was at the train station is critical to two questions at issue in the case, namely, whether
Hopkins acted recklessly when he climbed the train and whether additional security measures
could have prevented the accident. Thus, evidence closely connected to Hopkins mental state is
not unfairly prejudicial. Moreover, the jury will inevitably-and rightfully, under the Rules of
Evidence-learn that Hopkins drunkenly climbed on top of a train. Evidence of how Hopkins
got to the train station in the first place is no more prejudicial than evidence of Hopkins' s actions
at the train station. Accordingly, the court concludes that the probative value of evidence that on
the morning of the accident Hopkins stormed out of his friend's home at 4 a.m., over the pleas
and objections of his friends outweighs any prejudicial effect; the evidence is admissible.
b.
Hopkins' s Knowledge of Electrical Hazards
Plaintiffs argue that evidence concerning Hopkins general knowledge of electrical
hazards should be excluded. (See generally Electrical Danger Motion.) Plaintiffs argue that
because the court found in the Summary Judgment Decision that most other incidents of electric
shocks occurring on top of trains were inadmissible to show Defendants' notice (see Summary
24
Judgement Decision at 18-21 ), evidence of Hopkins' s knowledge of the dangers of electricity
must also be inadmissible (Electrical Danger Motion at 1-2). 11 The court disagrees.
The basis for excluding prior instances of electric shocks does not apply to evidence of
Hopkins' s knowledge of electrical risks. At the summary judgment phase, Plaintiffs pointed to
prior incidents where individuals had climbed on top of trains and came into contact with
electrified wires as evidence "that Defendants had notice of the danger posed by parking trains
under electrified catenary wires." (Summary Judgement Decision at 18.) As the court explained
in its Summary Judgment Decision although, "evidence of prior accidents is admissible to show
a defendant's knowledge of a dangerous condition, ... basic principles of relevancy require that
the other instances of injuries received should have occurred under substantially similar
circumstances." (Summary Judgement Decision at 19 (internal quotation marks and citation
omitted).) However, Defendants do not seek to introduce prior accidents to show that Hopkins
had notice that the catenary wire was dangerous. Instead, Defendants seek to introduce direct
evidence that Hopkins was aware of the risks posed by electrical wires.
Direct evidence that a plaintiff understood the risks associated with his actions does not
implicate the same prejudice concerns as using unrelated accidents to prove notice. The reason
that the use of prior accidents to show notice is limited is because "the jury might infer from
evidence of the prior accident alone that ultra-hazardous conditions existed at the site and were
the cause of the later accident without those issues ever having been proved." Edwards v.
Consol. Rail Coro., 567 F. Supp. 1087, 1106 (D.D.C. 1983), aff d, 733 F.2d 966 (D.C. Cir. 1984)
(quoting Gardner v. S. Railway Sys., 675 F.2d 949, 952 (7th Cir. 1982)). That concern is not
implicated by evidence that a plaintiff understood the specific risks associated with his behavior.
11 Plaintiffs also argue that evidence of Hopkins's knowledge of electrical dangers is irrelevant because Hopkins's
recklessness is not a defense. The court has rejected this argument above.
25
Direct evidence that a plaintiff understood the danger associated with his conduct allows ajury
to infer that a plaintiff knowingly confronted the specific danger that caused the specific harm at
issue in the case. Thus, unlike the use of prior accidents to prove notice, direct evidence of a
plaintiffs knowledge of the specific risk at issue does not introduce unrelated evidence into the
case from which the jury could draw impermissible inferences.
Thus, the court concludes that evidence that Hopkins' s understood the risks associated
with electrical wires is admissible.
c.
Hopkins's Prior Instances of Drinking and Marijuana Use
Plaintiffs argue that evidence concerning Hopkins's general drinking and marijuana
usage on days other than the day of the accident should be excluded. (See generally Past
Alcohol Use Motion) Plaintiffs argue that such evidence is (I) impermissible character evidence
under Rule 404(a), (2) irrelevant because the parties have stipulated to Hopkins's blood alcohol
level at the time of the accident, and (3) more prejudicial than probative. The court agrees with
respect to evidence of marijuana use, but disagrees with respect to evidence concerning
Hopkins's past drinking. 12
First, under Rule 404(a)(l ), "[ e]vidence of a person's character or character trait is not
admissible to prove that on a particular occasion the person acted in accordance with the
character or trait." Fed. R. Evid. 404(a)(l). Thus, for example, it would be impermissible for
Defendants to argue that because Hopkins had been drunk in the past he was likely drunk on the
night of the accident. However, evidence of past crimes, wrongs, or other acts is admissible "so
12 Defendants do not contest that evidence of marijuana use is inadmissible. (Defs.' Opp'n at I n.1.) The court
agrees that such evidence is not admissible. No party alleges that Hopkins used marijuana on the night of the
accident or that marijuana played any role in causing Hopkins's injuries. Thus, Hopkins past use of the drug is
irrelevant.
26
long as [it is] not offered to show the defendant's propensity to commit the offense." United
States v. Curley, 639 F.3d 50, 57 (2d Cir. 2011). Accordingly, Rule 404(b) allows other acts
evidence to show "motive, opportunity, intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident." Fed. R. Evid. 404(b)(2). Evidence ofHopkins's past drinking is
relevant for these permitted uses. For example, Defendants intend to offer evidence that Hopkins
had previously acted dangerously when he consumed alcohol. (Defs.' Opp'n at 14.) This
evidence may be relevant to show that Hopkins understood the risks associated with his drinking,
which is relevant to showing recklessness. See Montes, 843 N.E.2d at 615 (noting that reckless
conduct involves the voluntary taking of a grave risk). 13
Second, the parties' stipulation concerning Hopkins's blood alcohol level does not render
evidence concerning Hopkins' s past drinking irrelevant. The parties' stipulation provides that
Hopkins had an alcohol level of 2544 mg/L immediately following his electric shock.
(Comparative Negligence Motion at 2.) However, Defendants are not seeking to use evidence of
Hopkins's past drinking to show that he was likely drunk on the night in question. Instead, they
intend to introduce evidence of Hopkins' s past drinking to show that he understood the risks
associated with his use of alcohol. (Defs.' Opp'n at 14.) The stipulation says nothing about
Hopkins's knowledge and thus does not make the proffered past-drinking-evidence irrelevant or
cumulative.
13
Defendants argue that they may be able to show that Hopkins had a pattern of behaving recklessly when he
became drunk. (Defs.' Opp'n at 14.) "Evidence of a person's habit or an organization's routine practice may be
admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or
routine practice." Fed. R. Evid. 406. Defendants have only proffered one instance where Hopkins arguably
behaved recklessly while intoxicated. A single episode is insufficient to show a habit. See Corona v. Adriatic
Italian Rest. & Pizzeria, No. 08-CV-5399 (KNF), 2010 WL 675700, at *l (S.D.N.Y. Feb. 23, 2010) ("[A] party
seeking to establish a practice has become its habit must show its practice was employed on occasions numerous
enough to al1ow an inference to be drawn that its practice is systematic conduct."). Thus, at this point, the court
cannot conclude that evidence ofHopkins's prior drinking is admissible as habit evidence. In any event, Defendants
appear to largely conflate their habit arguments under Rule 406 with their knowledge and intent arguments under
Rule 404(b). (See Defs.' Opp'n at 14.) Nonetheless, if Defendants wish to pursue their habit argument, they must
make an additional supporting proffer.
27
Finally, evidence ofHopkins's past drinking is not unfairly prejudicial. The question of
whether Hopkins understood the risks associated with his behavior is relevant to determining
whether he recklessly caused his own injury. It therefore is not unfair for Defendants to admit
evidence tending to show that Hopkins had reason to know how he was likely to behave while
intoxicated. Highland Capital Mgmt., L.P., 551 F. Supp. 2d at 176-77 ("Evidence is prejudicial
under Rule 403 if it 'involves some adverse effect beyond tending to prove the fact or issue that
justified its admission into evidence."' (alteration removed) (quoting Gelzer, 50 F.3d at 1139).
Moreover, the jury will no doubt be told that Hopkins was extremely drunk at the time of the
accident. Evidence that Hopkins had been drunk before is no more prejudicial than evidence that
will already be admitted.
Accordingly, the court finds that evidence ofHopkins's prior drinking is admissible.
d.
Text Messages and Phone Records
Plaintiffs seek to exclude text messages from Peter Arhangelsky to Brian Hopkins and
Brian Hopkins' s cell phone records from the night before and morning of the accident. (See
generally Text Messages and Phone Records Motion.) Specifically, Plaintiffs wish to exclude
two text massages. The first text message was sent from Arhangelsky to Hopkins after Hopkins
had left Arhangelsky's home to go to the train station; the text message reads "F-k you. S-k
you own c-k. I hope your bus goes down. I sat at South Station for two hours." (Id. at I.) The
second text message asks Hopkins to call Arhangelsky so that "I know you're alive." (Id.)
There is no evidence that Hopkins read either message. (Id.) Plaintiffs argue that the text
messages and other phone records are inadmissible because (I) they are irrelevant because
evidence ofHopkins's state of mind and conduct are not relevant, (2) they are inadmissible
hearsay, (3) they do not assist the jury in understanding why Hopkins was on the train in light of
28
the parties' stipulations, and (4) the text messages are more prejudicial than probative. None of
these arguments are compelling.
First, Hopkins' s state of mind and conduct on the night of the accident are relevant. (See
supra Part III.A. l .i.) Moreover, the text messages and phone records are relevant to show
Hopkins' s state of mind. Arhangelsky witnessed Hopkins immediately before Hopkins went to
the train station. Arhangelsky' s text messages therefore offer a window into how Arhangelsky
perceived Hopkins's actions and thought processes immediately before the incident occurred. In
the text messages, Arhangelsky expresses anger and worry that Hopkins left Arhangelsky's
house to go to the bus station. From these messages, the jury could infer that Arhangelsky
perceived that Hopkins was acting erratically or dangerously, and from there could infer that
Hopkins was actually acting dangerously. These inferences can be drawn regardless of whether
Hopkins read the text messages. Indeed, it is uncontroversial that statements can be used against
a non-declarant where relevant. See, e.g., United States v. Nersesian, 824 F.2d 1294, 1325
(2d Cir. 1987) (noting that "declarations of intention or future plans are admissible against a
nondeclarant when they are linked with independent evidence that corroborates the declaration").
Second, the text messages are not hearsay. To be hearsay, a statement must be
introduced "to prove the truth of the matter asserted in the statement." Fed. R. Evid. 80l(c)(2).
Thus, where "the statement is offered as circumstantial evidence of ... state of mind, it does not
fall within the definition given by Rule 801 (c); because it was not offered to prove the truth of
the matter asserted." United States v. Detrich, 865 F.2d 17, 21 (2d Cir. 1988). Here, Defendants
are not seeking to use the text messages to prove the truth of the matters asserted. For example,
the Defendants are indifferent as to whether Arhangelsky actually wanted Hopkins's bus to go
29
down. Instead, Defendants are offering the text messages as circumstantial evidence of
Arhangelsky's state of mind. Therefore, the text messages are not hearsay. 14
Third, the text messages and phone records may assist the jury in determining why
Hopkins climbed aboard the train. The text messages offer circumstantial evidence ofHopkins's
state of mind based on Arhangelsky's perceptions of Hopkins immediately before Hopkins went
to the train station. True, this is not the best possible evidence ofHopkins's thought process, but
it is nonetheless helpful.
Finally, the text messages and phone records are not unfairly prejudicial. Plaintiffs do
not appear to argue that the phone records are unfairly prejudicial. Rather, all Plaintiffs argue is
that the text messages are unfairly prejudicial because they contain foul language. (Id. at 4.)
True, the text messages contain harsh language. However, that harsh language does not
prejudice the Plaintiffs in any way. The messages were written by Arhangelsky, not Hopkins.
Therefore, the court fails to see how the foul language could prejudice the jury against Plaintiffs.
In any event, the harshness of the language-if prejudicial at all---does not substantially
outweigh the probative value of the messages. Indeed, the harshness of the language in the text
message offers strong evidence of Arhangelsky' s contemporaneous reaction to Hopkins' s
actions. That is, the very fact that Arhangelsky used strong language in the text messages is
itself probative of how Arhangelsky felt at the time.
Thus, the court finds that the text messages and phone records are admissible.
14 Neither party offers a specific hearsay objection to the phone records. If Plaintiffs have a hearsay objection to the
phone records, they can make it when Defendants move to have them admitted.
30
2.
Certain Newspaper and Facebook Evidence
1.
Newspaper Article
Plaintiffs move to exclude a newspaper article entitled "Triple Amputee Inspires in White
Plains," by Candice Perrette. (Pls.' Mot. in Lim. to Preclude Various Hearsay Items (Dkt. 82)
at 1.) The article states that Hopkins was injured "when an overhead wire broke loose and
shocked him in a freak accident." (Defs.' Opp'n at 15.) Plaintiffs argue that the newspaper
article is hearsay and therefore inadmissible. (Pls.' Mot. in Lim. to Preclude Various Hearsay
Items at I) Defendants respond that although "the article itself, if offered to prove that Hopkins
made the statement in it, would be hearsay[,] [t]he article may be offered for other purposes."
(Defs.' Opp'n at 15.) Specifically, Defendants argue that the undisputedly erroneous account of
the incident in the article may be evidence that Hopkins felt compelled to conceal how the
injuries occurred, which could infer consciousness of culpable conduct. (Id. at 15-16.)
Defendants are certainly correct that if Hopkins was the source of the error in the article
then his decision to deceive would be circumstantial evidence of culpability. See United States
v. Whitehead, 579 F. App'x 46, 48 (2d Cir. 2014) (summary order) (noting that a defendant's lie
was circumstantial evidence of mens rea). However, Defendants have proffered no evidence that
Hopkins was the source of the falsity. "When the relevance of evidence depends on whether a
fact exists, proof must be introduced sufficient to support a finding that the fact does exist." Fed.
R. Evid. I 04. Accordingly, the court reserves on ruling on the admissibility of the article. If, in
the unlikely event that, evidence is adduced that links Hopkins to the falsity, then the article
could be admitted for the non-hearsay purpose that Defendants have proffered.
31
11.
Facebook Posts
Plaintiffs argue that Hopkins's Facebook page printouts likely contain inadmissible
hearsay. (Pls.' Mot. in Lim. to Preclude Various Hearsay Items at 2.) Plaintiffs acknowledge
that Hopkins's own statements on his Facebook page are admissible as an opposing party
statement.
iliU
Nonetheless, Plaintiffs argue that Facebook pages typically contain statements
of numerous people, many of which would be hearsay. (Id.) Thus, Plaintiffs argue that any
admitted Facebook pages "should be carefully redacted." Defendants appear to agree. (See
Defs.' Opp'n at 16.) Accordingly, the court reserves ruling on the admissibility of any Face book
posts. If Defendants seek to use the Facebook posts, and redaction has not resolved the hearsay
problem, Plaintiffs may raise their hearsay challenge again.
iii.
Hearsay within Hearsay
Finally, Plaintiffs argue that certain statements within police, fire, security company, and
ambulance reports should be excluded as hearsay. (Pls.' Mot. in Lim. to Preclude Various
Hearsay Items at 2.) Defendants have not opposed. (Defs.' Opp'n at 1 n.1.) Plaintiffs are
undoubtedly correct that "[i]nadmissible hearsay does not become admissible solely by virtue of
its inclusion in an admissible report." Rodriguez v. Modern Handling Equip. ofN.J., Inc., 604
F. Supp. 2d 612, 622 (S.D.N.Y. 2009). However, Plaintiffs have not identified which specific
statements they find objectionable. Accordingly, the court cannot determine whether any
hearsay exception applies to those statements. Thus, the court reserves on determining whether
any statements within police, fire, security company, or ambulance reports should be excluded as
hearsay.
32
3.
Dr. Morse's Knowledge of Capital Punishment
Plaintiffs move to preclude Defendants from inquiring into or referencing Dr. Morse's
knowledge of capital punishment via the electric chair. (Pls.' Mot. in Limine to Preclude
Electric Chair Evidence (Dkt. 81).) Defendants do not oppose the motion. (Defs.' Opp'n at I
n. l.) The court agrees that inquiry into Dr. Morse's research of, and experience with, the electric
chair would be significantly more prejudicial than probative. See Fed. R. Evid. 403. Thus, the
court precludes Defendants from inquiring into, or referencing, Dr. Morse's knowledge of capital
punishment via the electric chair.
4.
Pleadings from Plaintiffs' State Case
Plaintiffs move to preclude pleadings from and reference to their dismissed state court
case. (Pls.' Mot. in Lim. to Preclude State Case Pleadings (Dkt. 88).) Defendants do not oppose
the motion. (Defs.' Opp'n at I n. l.) The court agrees that use of the state court pleadings or
reference to the case being dismissed are likely to confuse the jury. See Fed. R. Evid. 403.
B.
Defendants' Motion
I.
Expert Testimony
Defendants argue that "any opinions that Plaintiffs human factors expert Richard Gill
('Gill') reached by relying on the Klein/Birdwell incident should be precluded and Gill should be
precluded from disclosing the facts of the Klein/Birdwell incident to the jury." (Defs.' Omnibus
Mot. in Lim. ("Defs.' Mem.") (Dkt. 86) at 5.)
The court presumes familiarity with Gill's proffered testimony. (See generally Daubert
Mem. & Order ("Daubert Decision") (Dkt. 73).) Briefly, Gill proposes to testify that:
I. The overall design and mode of operation of South Station,
including the trains and power grid, created a life threatening
functionally hidden hazard that presented an unreasonable risk of
33
harm to the general public in and around the platforms at South
Station.
2. The reason that this functionally hidden hazard existed, as well as
the reason it was not mitigated in a timely manner was the failure of
the Defendants' safety and risk management programs; such failures
were a callous and blatant disregard for public safety.
3. Mr. Hopkins [sic] actions and/or inactions were a relatively minor
contributing factor to this incident.
(See Dec. 14, 2011, Rpt. of Richard Gill ("Gill Rpt.") (Pls.' Rule 26(A)(2) Disclosure of
Liability Expert Test. ("Pls.' Disclosure") (Dkt. 38), Ex. B (Dkt. 38-2)) at 1-2.)
For the reasons stated below, Gill will not be precluded from expressing his opinions, but
he will be precluded from disclosing the facts of the Klein/Birdwell incident to the jury.
1.
Exclusion of Expert's Opinion Based on Reliance on Inadmissible
Evidence
Defendants argue that Gill should be precluded from testifying about any opinions that he
reached in reliance on the Klein/Birdwell incident because the court found the Klein/Birdwell
incident was inadmissible as direct evidence of notice. (Defs.' Mem. at 5.) The court disagrees.
First, the court already addressed this issue and ruled that Gill's opinions were
admissible. In its Daubert Decision, the court held:
[U]nder Federal Rule of Evidence 703, Dr. Gill is permitted to
rely on otherwise inadmissible evidence if it is the kind typically
relied upon by experts in the field. Here, Defendants have not
presented any evidence that an expert in the field would consider
the Klein/Birdwell incident or any of the other excluded
electrocutions so unrelated that they could not be considered in
forming an opinion. The only evidence in the record is to the
contrary. Dr. Gill's report concludes that the Klein/Birdwell
incident is relevant for the purposes of reaching his opinions. (Gill
Rpt. at 5.) Likewise, Mr. Bates considered other electrocutions
relevant. (Bates Rpt. at 8-9.) Accordingly, the court does not find
that Dr. Gill's report is unreliable. Moreover, an examination of Dr.
Gill's report reveals that, although Dr. Gill notes where he relied on
sources which were also relied upon in the Klein/Birdwell matter
(see. e.g., Gill Rpt. at 4 (noting that the Amtrak Operating
Instructions were '[a]nalyzed in the Birdwell and Klein incident')),
he does not primarily base his opinions on the Birdwell/Klein
34
incident. Therefore, even ifthe court were to exclude all reliance on
the Klein/Birdwell matter, Dr. Gill would still have a sufficient
factual basis to reach his opinions. Accordingly, the court will not
exclude Dr. Gill's proffered report.
(Daubert Decision at 18.)
Under the law of the case doctrine, a court should generally adhere to its prior holdings
absent "cogent" or "compelling" reasons militating in favor ofreversal. Johnson v. Holder, 564
F.3d 95, 99 (2d Cir. 2009) (quoting United State v. Quintieri, 306 F.3d 1217, 1229
(2d Cir. 2002)). The major grounds justifying reconsideration are "an intervening change of
controlling law, the availability of new evidence, or the need to correct a clear error or prevent
manifest injustice." Virgin At!. Airways, Ltd. v. Nat'! Mediation Bd., 956 F.2d 1245, 1255
(2d Cir. 1992) (internal citation and quotation marks omitted); see also United States v. Carr, 557
F.3d 93, 102 (2d Cir. 2009).
Defendants have not offered a persuasive reason why the court should change course.
Defendants have pointed to no new law. Indeed, the one case that Defendants cite in support of
precluding Gill's opinions is a case from 1985, which this court cited in its original discussion
finding Gill's opinions to be admissible. (Compare Defs.' Mem. at 7 (citing In re Agent Orange
Prod. Liab. Litig., 611 F. Supp. 1223, 1245 (E.D.N.Y. 1985), with Daubert Decision at 17 (also
citing In re Agent Orange Prod. Liab. Litig.) Nor have Defendants pointed to any new evidence.
In its Daubert Decision, the court indicated that Gill could rely on the Klein/Birdwell incident if
a human factors expert would normally rely on an incident like the Klein/Birdwell incident in
analyzing a case like this one. (Daubert Decision at 18.) The court then concluded, on the basis
of the record before it, that human factors engineers would have relied on the Klein/Birdwell
incident. (Id.) Defendants have not offered any evidence to change this view. Indeed,
Defendants specifically indicate that they do not intend to provide any evidence about whether
35
an expert in the field of human factors engineering would rely on an incident like the
Klein/Birdwell incident. (Defs.' Mem. at 7.) And finally, Defendants have not indicated that the
court made a clear error oflaw or that a manifest injustice would arise from admitting Gill's
testimony. Instead, Defendants simply mimic the arguments that they made in their Daubert
briefing. (Compare Defs.' Mem. in Supp. of Mot. in Lim. to Preclude Liability Experts (Dkt. 69)
at 18, with Defs.' Mem. at 7 (each arguing, without citation, that no reasonable expert would rely
on the Klein/Birdwell incident).) Accordingly, the court sees no reason to revisit its Daubert
holding.
But, even if the court were to reconsider its Daubert Decision, it would not change its
opinion. Defendants argue that Gill should be precluded from testifying about any opinions that
he reached in reliance on the Klein/Birdwell incident because the court found the Klein/Birdwell
incident inadmissible as direct evidence of notice. (Defs.' Mem. at 5.) Specifically, Defendants
argue that because the Klein/Birdwell was excluded to show direct evidence of notice, it must be
"so lacking in probative force and reliability that no reasonable expert could base its opinion on"
it. (Id. (quoting In re Agent Orange Prod. Liab. Litig., 611 F. Supp. at 1245). This argument
misconstrues the basis for excluding the Klein/Birdwell incident. The court did not hold, and
does not believe, that the Klein/Birdwell incident has no probative value. Instead, the court
found that admission of the Klein/Birdwell incident would on balance be more prejudicial than
probative.
In its Summary Judgment Decision, the court explained that when a prior accident is
offered to show notice of a dangerous condition, the prior accident must be substantially similar
to the case at issue. (Summary Judgment Decision at 19.) In support of this conclusion, the
court cited two cases: Edwards v. Consol. Rail Corp., 567 F. Supp. 1087 (D.D.C. 1983) and
36
McKinnon v. Ski! Com., 638 F. 2d 270 (lst Cir. 1981). (Id.) Both Edwards and McKinnon
explain that the "substantial similarity" rule is grounded in a balance between probative value
and a risk of unfair prejudice. For example, the Edwards court stated:
The rationale for excluding evidence of prior accidents that
happened under dissimilar or remote circumstances is a matter of
logic: as time and circumstances become less similar to the accident
under consideration, the probative value of the occurrence of such
prior accidents decreases, while the prejudicial value of such
evidence before a jury remains high. The value of such evidence is
that, when prior accidents have occurred under similar
circumstances, the accidents and knowledge of them operate as a
standard against which can be tested the reasonableness of the
defendant's conduct. But such evidence should be carefully
examined before being received to the end that the circumstances of
the other accident bear similarity to the circumstances surrounding
the accident at issue. This is because such evidence can be unfairly
prejudicial; the jury might infer from evidence of the prior accident
alone that ultra-hazardous conditions existed at the site and were the
cause of the later accident without those issues ever having been
proved.
567 F. Supp. at 1106 (internal quotation marks, citations, emphasis, and alteration removed).
Likewise, McKinnon, grounded the "substantial similarity rule" in the First Circuit's opinion in
P. B. Mutrie Motor Transp., Inc. v. Inter-Chem. Corp., 378 F.2d 447, 450 (lst Cir. 1967), see
McKinnon, 638 F.2d at 277, and Mutrie derived the "substantial similarity rule," in part from the
risk of unfairness, Mutrie, 378 F.2d at 450-51 ("We think this case lies within the scope of the
reservation that where substantial identity in the circumstances appears, and the danger of
unfairness, confusion or undue expenditure of time in the trial of collateral issues reasonably
seems small to the trial judge, he has generally been left free to admit such evidence in his
discretion." (internal citation and quotation marks omitted)). Thus, the "substantial similarity"
requirement is not based solely on relevance, but instead incorporates a balance between
probative force and unfair prejudice. See, e.g., Surles ex re!. Johnson v. Greyhound Lines,
Inc., 474 F.3d 288, 297 (6th Cir. 2007) (explaining that the "substantially similar" rule exists "in
37
large part because all evidence deemed admissible by the district court must meet the minimal
standards ofrelevancy articulated in Federal Rules of Evidence 401 and 403").
This makes sense. The fact that somewhat (although not substantially) similar accidents
have occurred does tend to make it more likely that a defendant was aware of the risks in
question. Nonetheless, admitting such tangentially related prior accidents strongly prejudices the
defendant because a jury is likely to infer that because the defendant had engaged in dangerous
conduct in the past, they engaged in dangerous conduct in the present. These concerns, however,
are not implicated when an expert relies on somewhat similar accidents. As Defendants
acknowledge, "the expert is assumed, if he meets the test of Rule 702, to have the skill to
properly evaluate the inadmissible evidence, giving it probative force appropriate to the
circumstances." (Defs.' Mem. at 7 (internal quotation marks, citation, and alterations removed).)
As the court explained in its Daubert Decision, this balancing between the weights
assigned to various pieces of evidence is precisely what Gill appears to have done in his expert
report. (Daubert Decision at 18 ("Moreover, an examination of Dr. Gill's report reveals that,
although Dr. Gill notes where he relied on sources which were also relied upon in the
Klein/Birdwell matter, he does not primarily base his opinions on the Birdwell/Klein
incident.").) Defendants may disagree with the weight that Gill assigns to various pieces of
evidence, or the conclusions that Gill draws from that evidence, but Defendants have not put
forward a valid basis to exclude Gill's testimony.
Thus, the court finds that Gill is permitted to offer his opinions to the extent authorized
by the Daubert Decision.
38
u.
Disclosure of Otherwise Inadmissible Evidence
In the alternative, Defendants argue that Gill "should be precluded from disclosing the
facts of the Klein/Birdwell incident to the jury." (Defs.' Mem. at 5.) Defendants argue that "the
facts of the Klein/Birdwell incident will not aid the jury in evaluating the credibility of Gill's
opinions, yet they could have a highly prejudicial effect." (Id. at 8.) Plaintiffs argue that under
Rule 703, experts are permitted to rely on inadmissible evidence. (Pls.' Opp'n (Dkt. 92) at 2.)
Plaintiffs, however, do not offer a specific reason why Gill should be permitted to disclose the
facts of the Klein/Birdwell incident to the jury.
Federal Rule of Evidence 703 provides:
An expert may base an opinion on facts or data in the case that the
expert has been made aware of or personally observed. If experts in
the particular field would reasonably rely on those kinds of facts or
data in forming an opinion on the subject, they need not be
admissible for the opinion to be admitted. But if the facts or data
would otherwise be inadmissible, the proponent of the opinion may
disclose them to the jury only iftheir probative value in helping the
jurv evaluate the opinion substantially outweighs their prejudicial
effect.
Fed. R. Evid. 703 (emphasis added). As the court explained above, admission of prior accidents
to show notice risks significant prejudice to defendants ifthe prior accidents are not substantially
similar to the facts in the case at issue. In the Summary Judgment Decision, the court
accordingly found that admission of the Klein/Birdwell incident would be prejudicial to
Defendants. (Summary Judgment Decision at 19.) Plaintiffs have not presented any reason why
the jury would be assisted at all by the disclosure of the facts of the Klein/Birdwell incident,
much less, why that assistance would substantially outweigh the prejudice to Defendants. Thus,
the court finds that Gill shall be precluded from disclosing the facts of the Klein/Birdwell
incident to the jury.
39
2.
Benji Incident 15
Defendants next argue that the court should reconsider the admissibility of the Benji
Incident. In its Summary Judgment Decision, the court found that the Benji Incident was
admissible as direct evidence of notice because "in the Ben[j]i incident an individual was injured
after standing atop an Amtrak train in Penn Station in New York and coming into contact with a
catenary wire. The court concludes, based on the information presented, that this incident is
similar enough in nature to the instant case to serve as notice that members of the public might
move from the platforms onto trains parked in stations." (Summary Judgment Decision at 20.)
Defendants now argue that the court should reconsider the admissibility of the Benji Incident "in
light of the Court's Daubert ruling." (Defs.' Mem. at 8.) Specifically, Defendants contend that
although the Benji incident may have been relevant at the Summary Judgment phase where
Plaintiffs' liability theory included allegations that Defendants were reckless because they
parked their trains at the station overnight and did not de-energize the overhead catenary wires, it
is no longer relevant because the court's Daubert Decision precluded the Plaintiff from offering
expert testimony regarding the feasibility of parking the train elsewhere or de-energizing the
wire. Mat 10-11.) The court disagrees; the Benji Incident remains admissible to show notice.
First, the Daubert Decision has not meaningfully changed the landscape. The court never
precluded Plaintiffs from offering evidence that it was feasible to de-energize the catenary wire
or to park the trains elsewhere. Instead, all the court held was that Gill and Rogers could not
testify that it would have been feasible to do so. (Daubert Decision at 12-13, 30-31.) Indeed, the
court was clear that Plaintiffs could pursue other methods of showing the feasibility of de-
15
In their 56.l statement, Plaintiffs referred to this incident as the Bengi Incident. (Pl.'s 56.I Stmt. (Dkt. 49) ~ 50.)
In the Joint Pre-Trial Order and Motions in Limine, the parties refer to the incident and the Benji Incident. (See.
;og,, Joint Pre-Trial Order ("JPTO") (Dkt. 75) at 49.) The court assumes the earlier spelling was an error and refers
to the incident as the Benji incident.
40
energizing the catenary wire or parking the trains elsewhere, and if they did so, could offer
expert testimony on how those alternative designs would have made South Station safer. (Id.
at 13 n.6 ("To be clear, Dr. Gill himself may not testify that it would have been feasible to deenergize the catenary wires or store the trains elsewhere. However, whether Dr. Gill is
ultimately permitted to opine on whether de-energizing catenary wires and storing trains
elsewhere would have made South Station safer is a question of conditional relevancy; his views
that such measures would make South Station safer will only be admissible if facts showing
feasibility are adduced through other witnesses at trial."). Plaintiffs appear to be pursuing
exactly this line of proof. For example, Plaintiffs have designated page 97, lines 10 through 16
of Robert Verhelle's deposition for use at trial. (Joint Pre-Trial Order ("JPTO") (Dkt. 75)
at 40.) 16 Those lines concern Verhelle's testimony that it was technically feasible to de-energize
the overhead catenary wires. (See Verhelle Dep. (Deel. of Russell X. Pollock in Opp'n to Defs.'
Mot. for Summ. J. (Dkt. 47), Ex. 3 (Dkt. 47-1)) at 97:13-17 ("As far as feasible, can it be done?
It can be done. Again, it's not a normal way to operate electric traction power.").) Thus,
Plaintiffs were permitted to pursue, and appear to be pursuing, the same liability theory that
Defendants acknowledge made the Benji Incident relevant at the Summary Judgment phase.
Second, Defendants' attempt to re-litigate whether the facts of the Benji Incident are
substantially similar to this case is unpersuasive. Defendants argue that the Benji Incident
should be excluded because (1) the Benji accident occurred 14 years prior to this incident, (2) the
Benji Incident "may not have occurred at a platform," and (3) the Benji Incident occurred on top
of a locomotive engine, not a passenger car. (Defs.' Opp'n at 16.) None of these reasons
16 The parties have not briefed the question, and therefore, the court does not provide an opinion on whether this
deposition section would be admissible at trial.
41
challenges the court's core finding in the Summary Judgment Decision that the Benji Incident is
substantially similar to the incident here because it too involves an individual who came into
contact with an overhead catenary wire by climbing a train car, which was parked in a station.
(Summary Judgment Decision at 20.) Defendants have presented no argument why that core
ruling should be disturbed; therefore, the court reiterates that the Benji Incident is admissible.
1.
Reconsideration of Other Incidents
Plaintiffs argue that Defendants have opened the door to re-argument of whether other
incidents are sufficiently similar to this case to allow their admission to prove notice. (Pls.'
Opp'n at 2-6.) Even ifthe court were to reconsider the admissibility of other incidents, it would
not change its views.
At the summary judgment phase, Plaintiffs argued that six previous incidents where
individuals climbed on top of trains and came into contact with electrical wires were relevant to
show notice. (Summary Judgment Decision at 18.) The court found that only incidents that
occurred at train stations were sufficiently similar to this case to be admissible. (Id. at 20.)
Specifically, the court found that:
It is a different matter to have notice that individuals might be
injured when they climb on trains in a rail yard or freight yard than
it is to have notice that individuals might be injured when they climb
on a waiting train in a public station. Indeed, Plaintiffs argue that
Defendants' misconduct involved disregarding the risk that
individuals in the station would not appreciate the danger of the
electrified wire, and thus failing to put up signs, close the platform,
or have more security in the station. Accordingly, notice of prior
incidents where the risk involved leaving trains under electrified
wires in a rail yard or freight yard, where the notice and security at
issue would likely be very different than that of an enclosed public
station, is not relevant.
(Id. (internal citations omitted).) Plaintiffs have not pointed to any persuasive reason why this
determination was erroneous. "A court's reconsideration of its own earlier decision in a case
42
may, however, be justified in compelling circumstances, consisting principally of (1) an
intervening change in controlling law, (2) new evidence, or (3) the need to correct a clear error of
law or to prevent manifest injustice." Carr, 557 F.3d at 102.
First, Plaintiffs have not argued that there has been an intervening change in law. Indeed,
Plaintiffs suggest that the court applied the correct legal standard in its Summary Judgment
Decision. (Compare Pls.' Opp'n at 3 (stating that prior incidents are admissible to show notice
when the conditions surrounding the prior incident are substantially similar to the accident that is
at issue), with Summary Judgment Decision at 19 (same).)
Second, Plaintiffs have not produced any meaningful new evidence. Indeed, Plaintiffs do
not argue that new evidence warrants a different result.
Finally, Plaintiffs do not suggest that the court made a clear error of law or that manifest
injustice will result from a failure to reconsider. Instead, Plaintiffs argue that the court should
admit all prior instances of electric shocks on top of trains for two reasons. Preliminarily,
Plaintiffs argue that all of the proffered accidents are substantially similar because in each case
the same hazard caused the harm (namely, an overhead catenary wire). (Pls.' Opp'n at 5.) This
argument entirely ignores case law such as Edwards, which holds that even where all the
proffered incidents involve electric shocks by overhead catenary wires, the specific location
remains important to determine whether two incidents are substantially similar. See
Edwards, 567 F. Supp. at 1106-07. This rule makes sense, railway operations run across diverse
terrain. Therefore, railway operators are, and should be, expected to take different safety
precautions depending on the specific risks posed at the various locations at which they work.
For example, an overhead catenary wire that is installed in a very difficult to reach rural location
may post different safety risks-and therefore, pose a different hazard-than the same overhead
43
catenary wire along a commonly trafficked road. Cf. Gardner, 675 F.2d at 952 (noting that in a
case concerning unsafe train operation at a crossing, the court must carefully consider the
conditions at the crossing at the time of a proffered previous accident). Perhaps recognizing that
the mere fact that each of their proffered prior accidents involved overhead catenary wires is
insufficient, Plaintiffs argue that rural incidents (such as the Klein/Birdwell Incident) should be
admissible in this case because "[w]hen the same Amtrak hazard that caused the injury in the
Birdwell case is placed in a more crowded urban area such as Boston and is further located in a
major Amtrak downtown city station with high foot traffic and elevated boarding platforms open
to the public 24 hours per day, such as MBTA's South Station, an accident similar to Birdwell is
even more foreseeable." (Pls.' Opp'n at 5.) This is the very type of flawed, inferential, and
prejudicial reasoning that the "substantially similar" rule seeks to avoid. Edwards speaks clearly
to this point. It noted "any notice that defendant may have had regarding [individuals] who had
previously climbed on top of trains standing in storage yards at other areas in the District of
Columbia located near houses or museums with no fences or other natural bars to access to the
tracks is not relevant to defendant's knowledge or realization of the likelihood that [individuals]
would be injured by a catenary wire at the site of plaintiff's accident." Edwards, 567 F. Supp.
at 1107. The court agrees with Edwards, Plaintiffs cannot infer notice from prior accidents at
materially different locations.
Thus, the court will not reconsider its prior holding that only accidents that occurred in
stations are substantially similar to Hopkins's accident.
3.
Other Dissimilar Incidents
Defendants argue that other dissimilar incidents are inadmissible to show notice. (Defs.'
Mem. at 11-12.) Specifically, Defendants move to exclude admission of, and testimony
44
regarding, Plaintiffs' proposed Exhibit 54, which is a list of criminal activity occurring at South
Station and Plaintiffs' proposed Exhibit 87, which is a list of incidents involving electrical
injuries suffered by trespassers onto Amtrak property. (Id.) Plaintiffs respond that they do not
intend to introduce Exhibits 54 or 87. (Pls.' Opp'n at 6.)
Instead, Plaintiffs argue that Exhibits 54 and 87 can form the basis for their expert's
opinions under Rule 703. Defendants do not appear to challenge whether an expert could rely on
Exhibits 54 or 87. Absent some specific argument from Defendants about the reliability of
expert opinions formed on the basis of Exhibits 54 or 87, the court will not revisit its Daubert
Decision.
Likewise, although Plaintiffs' statement that Rule 703 allows for an expert to disclose
inadmissible information when the probative value of the evidence substantially outweighs its
prejudicial effect (Pls. Opp'n at 7), is correct, Plaintiffs do not indicate whether they intend for
their experts to disclose Exhibits 54 or 87, and if so, why they believe such disclosure would
assist the jury.
Thus, at this stage, the court rules only that Exhibits 54 and 87 are inadmissible, but that
Plaintiffs' experts can rely on them. The court defers on ruling whether Plaintiffs' expert can
disclose Exhibits 54 and 87.
4.
Local Agency Investigation Reports
Defendants request that reports regarding the accident written by Boston Emergency
Medical Services, the Boston Police Department, the Boston Fire Department, and Allied-Barton
Security Services should be excluded. (Defs.' Mem. at 12-13.) Defendants argue that all such
reports are irrelevant because they were written by witnesses who arrived after Hopkins suffered
45
his injuries, and because information regarding security at South Station or Hopkins' s damages
can be presented through other witnesses. (Id.)
The court disagrees. First, the fact that the reports were authored by witnesses who
arrived after the incident is unimportant. The reports, many of which describe the conditions at
South Station or Hopkins's injuries immediately after the incident, are relevant. For example,
the Boston Police Department's July 9, 2006, Report indicates that the overhead catenary wire at
South Station is live at most times, that the train upon which the accident occurred arrived at
South Station from the Southampton Street Yard between 11 :41 and 11 :45 p.m. the previous
night, that the train had been parked at South Station all night, and that the train was expected to
leave for New York City at 11 a.m. in the morning. (Pls.' Proffered Ex. 7 (on file with court).)
This types of information is relevant to Plaintiffs' claim that South Station was unreasonably
unsafe. Likewise, the Boston Emergency Medical Services Patient Care Report describes
Hopkins's initial injuries, responsiveness to medical professionals immediately following the
incident, and initial treatment. (Pls.' Proffered Ex. 33 (on file with court).) This type of
evidence is relevant to show the extent ofHopkins's injuries and therefore his damages. True,
the reports are not the best possible evidence; they do not provide first-hand accounts of South
Station at the moment that Hopkins was injured. But, the Federal Rules of Evidence do not bar
all except the best possible evidence. See Fed. R. Evid. 40 I, 402. Thus, the court concludes that
the reports are relevant. 17
Second, the fact that other witnesses may be able to testify to the content of the reports is
inconsequential. The court interprets Defendants' argument as a cumulativeness challenge.
17 The court notes that Defendants have not raised a hearsay or authenticity challenge to the reports. Therefore, the
court does not address whether the reports are admissible as non-hearsay or under a hearsay exception, or whether
the reports are properly authenticated.
46
"Evidence is cumulative when it replicates other admitted evidence." Jami!, 707 F.2d at 643. It
is possible that evidence of the safety measures at South Station or Hopkins's injuries could
become cumulative. However, the court cannot make such a determination until it observes what
evidence Plaintiffs introduce at trial.
Thus, the court rules that the proffered reports regarding the accident written by Boston
Emergency Medical Services, the Boston Police Department, the Boston Fire Department, and
Allied-Barton Security Services are relevant. Should Defendants believe that the reports are
otherwise inadmissible or cumulative, they should raise their objections at trial.
5.
Railroad Safety Manuals and Industry Literature
Defendants seek to exclude "various operating and safety manuals, guidelines,
instructions videos, and other training material intended for railroad employees or contractors" as
well as the "National Fire Protection Association Manual and the National Electrical Safety
Code ('NESC')" from being introduced as evidence. (Defs.' Mem. at 13.) Defendants reason
that (1) the court held in its Daubert Decision that Plaintiffs' expert electrician James Rogers
could not opine on what safety measures the NESC requires; (2) the documents are irrelevant
because Defendants do not dispute that catenary wires are dangerous, can cause injuries like
those that Hopkins suffered, and can cause such injuries by arcing; and (3) the documents do not
concern trespassers and therefore risk prejudicing Defendants. Plaintiffs respond that the
materials are relevant to show that Defendants understood the risks associated with catenary
wires and further understood that those risks were not "immediately apparent" to the public.
(Pls.' Opp'n at 7-8.) Plaintiffs are largely correct.
First, the fact that Rogers cannot testify as to what the NESC requires does not render the
NESC wholly irrelevant. Rather, the court based its Daubert Decision on the twin findings that
47
Rogers was not qualified to opine on train station safety and that, in any event, Rogers did not
have a reliable methodology for determining what safety measures are required in a train station.
(Daubert Decision at 30-32.) Based on these findings, the court held that Rogers could not opine
on what NESC required of Defendants. (Id. at 33.) However, the court was clear that it did not
need to decide whether the NESC rules were binding on Defendants and therefore did not need
to decide the general question of whether NESC rules are relevant. (Id. at 33.)
Second, both industry literature and the NESC rules provide relevant information beyond
the facts that Defendants do not contest (that catenary wires are dangerous, can cause injuries
like those Hopkins suffered, and can cause such injuries by arcing). Specifically, Plaintiffs argue
that the proffered industry literature and the NESC rules both evidence Defendants' knowledge
of the risks associated with overhead catenary wires and provide circumstantial evidence that the
general public does not understand the risks associated with catenary wires. The court agrees,
the fact that Amtrak, other railroads, and the electrical standards see fit to repeatedly remind
trained workers of the risks associated with catenary wires does provide some circumstantial
evidence that the wires are highly dangerous and that individuals often do not fully comprehend
the risks associate with overhead catenary wires. 18
Finally, the court does not believe that Defendants will suffer undue prejudice from
admission of industry literature and the NESC rules. Defendants claim that they will suffer
prejudice because the jury may "render a verdict based on hazards arising from completely
distinct and unrelated situations, such as employees performing authorized work on electrical
lines or based solely on the general dangers of electricity without regard to the specific
18 The court notes that much of the proffered industry documents are not relevant. Although either Plaintiffs or
Defendants may have a good reason to admit the full documents, the court encourages the parties to consider
submitting only relevant subsections to the jury.
48
circumstances unique to this case." (Defs.' Mem. at 14.) The court does not believe this is
likely. The documents which Plaintiffs have proffered indicate on their face the context for
which they are intended. Defendants are free to highlight to the jury that the documents largely
relate to employees performing authorized work and certainly do not provide safety standards for
trespassers. Moreover, the jury will receive a lengthy instruction on what Plaintiffs must prove
to demonstrate recklessness under Massachusetts law. The court is confident that this instruction
will focus the jury on the specifics of this case and prevent the jury from finding liability based
on inapplicable standards. United States v. Dupree, 706 F.3d 131, 138 (2d Cir. 2013) ("A court
should consider the possible effectiveness of a jury instruction ... in making a Rule 403
determination.").
Thus, the court finds the proffered industry literature and the NESC rules admissible.
However, the court notes that neither party has addressed the specific content of any of the
literature. Should a party have any specific objections to an individual subsection or sections of
a document, they should raise their objections at trial.
6.
Government Reports and Literature
Defendants argue that Plaintiffs' proffered Exhibits 88 through 103, which consist of
various government reports concerning "general railway safety issues ... as well as specific
incident reports" should be excluded. (Defs.' Mem. at 14.) Defendants argue that none of the
incidents in the reports are substantially similar to the incident at issue here and thus should be
excluded. Mat 14.) Plaintiffs respond that the documents are relevant "to the magnitude of the
danger, railway safety and whether Defendants should have prevented this incident." (Pls.'
Opp'n at 8.)
49
Neither party has mentioned any specifics about the proffered documents nor described,
in any detail, their views on why the documents are admissible or inadmissible. Moreover, the
court's independent review of the documents demonstrated that they varied wildly in terms of
content. For example, Plaintiffs' proffered Exhibit 89 is a National Transportation Safety Board
safety recommendation following a 1971 electrocution of a man on top of a freight car. (Pls.'
Proffered Ex. 89 (on file with court).) The document discusses a single accident and suggests
ways to improve railroad safety. (Id.) By contrast, Plaintiffs' proffered Exhibit 90 is a 239-page
report entitled "Safety Considerations with Railroad Electrification: A Preliminary Review and
Assessment." (Pls.' Proffered Ex. 90 (on file with court).) The document engages in a broad
review of the hazards associated with electrified railroad systems and the means for mitigating
those hazards. (Id.) The vast differences between the proffered documents plainly requires
different evidentiary analysis-analysis neither party has even attempted.
Therefore, the court reserves ruling on the admissibility of proffered Exhibits 88
through 103. Should Defendants have any specific objections to a document, they should raise
those objections either at or before trial.
7.
Contracts Regarding South Station
Defendants move to exclude various contract documents concerning the use and
operation of South Station because the parties have stipulated that the MBTA owns and operates
South Station and that Amtrak operates and maintains the catenary system. (Defs.' Mem. at 15.)
Plaintiffs respond that in light of the parties' stipulation, admission of the contract documents are
"likely unnecessary." (Pls.' Mem. at 8.)
50
The court therefore does not currently need to decide whether the contract documents are
admissible. Should Plaintiffs decide that such documents are necessary, the court will then
consider Defendants' motion.
8.
Day in the Life Video and Before and After Photographs
Defendants move to exclude a "day in the life" video of Hopkins, as well as certain
photographs showing Hopkins before and after his injury. (Defs.' Mem. at I5-I6.) The court
does not have access to the Plaintiffs' proffered "day in the life" video at this time. Moreover,
given the court's decision to bifurcate the damages and liability phases of trial, the court need not
currently decide this issue. Therefore, the court reserves ruling on this issue.
Plaintiffs are instructed to provide the court with a copy of the "day in the life" video as
well as the photographs they intend to introduce by Monday, May 9, 20I6.
9.
Morse at the Liability Phase
Finally, Defendants argue that Dr. Morse ("Morse") should be precluded from testifying
at the liability phase of trial. (See generally Defs.' Mot. in Lim. to Preclude Testimony of
Michael Morse from the Liability Phase of Trial (Dkt. 99).) Defendants argue that Morse's
testimony should be precluded because "there is no genuine factual dispute regarding the only
portion of his testimony that is relevant to liability, i.e., that contact with the catenary wire posed
a risk of substantial physical harm or death." (Defs.' Mem. in Supp. ofMot. in Lim. to Preclude
Testimony of Michael Morse from the Liability Phase of Trial ("Defs.' Morse Mem.")
(Dkt. IOI) at 7.) Plaintiffs respond that Morse will be called to address the following liability
issues:
This is considered a high voltage incident given the magnitude of
voltage involved; The phenomenon of arcing of electricity; It is
likely that Brian Hopkins never actually contacted the high voltage
wire; The electricity arced from the wire to Brian Hopkins; The
51
entry wound was likely his left hand or forearm; The exit wound
was likely his left foot; and Related relevant opinions.
(Pls.' Mem. in Opp'n to Defs.' Mot. to Preclude Testimony of Michael Morse from the Liability
Phase of Trial ("Pls.' Morse Opp'n") (Dkt. 106) at 1-2.)
Defendants respond that they have offered to stipulate to the fact that contact with a
catenary wire risks a substantial physical injury or death (Defs.' Morse Mem. at 5-6), and to the
fact that this is a high voltage incident, that Hopkins may have never touched the wire, that
Hopkins was roughly a centimeter from the wire when the arc was drawn, and to the probable
entry and exit wounds (Defs' Reply in Further Supp. ofMot. in Lim. to Preclude Testimony of
Michael Morse from the Liability Phase of Trial ("Defs.' Reply") (Dkt. 107) at 2). Thus,
Defendants reason that, in light of their proposed stipulation, there is no liability evidence for
Morse to add. (Id. at 7.) In addition, Defendants argue that any liability evidence that Morse
could offer would be cumulative or prejudicial damages evidence. (Id. at 7-8.)
The court finds that Morse has relevant liability opinions. Indeed, in its Daubert
Decision, the court noted that "the gravity of the risk posed by a live catenary wire is relevant to
liability because a finding of recklessness under Massachusetts law requires an [] easily
perceptible danger of death or substantial physical harm." (Daubert Decision at 35.) Morse
proffered opinion speaks to the risk of harm posed by catenary wires. Moreover, Morse's
testimony is not redundant of the stipulation. A stipulation that contact with catenary wires can
cause grave injury or death will not explain to the jury what cause means (that is, how a live wire
causes harm), or what grave injury means (that is, the specific harm that live catenary wires can
cause). (See generally Pls.' Reply in Opp'n to Defs.' Mot. to Preclude Testimony of Michael
Morse from the Liability Phase of Trial (Dkt. 108) at 1-2.) Each of these issues speaks to the
gravity of the risk posed by a catenary wire.
52
Indeed, even if a stipulation could offer the jury an equal understanding to Morse's
proffered testimony, the usual rule is that parties are free to offer live testimony in lieu of a
stipulation. See Old Chief, 519 U.S. at 189. Additionally, the court doubts that a stipulation will
offer the jury the same understanding as Morse's testimony would. For example, Morse
proposes to explain how an electric wire can cause a shock through arcing-that is, without
direct contact with the wire. Arcing is not necessarily an intuitive concept. Thus, the court
believes that the jury will benefit from Morse's live testimony.
In addition, Morse's testimony is not cumulative. True, multiple witnesses will testify
that a live catenary wire poses a grave risk. However, Morse, as an electrical engineer, can offer
perspectives on the specific risk posed by high voltage energy. Moreover, to the extent that
Plaintiffs' testimony becomes cumulative, the court can always halt lines of questioning at trial.
Finally, Morse's testimony will not be prejudicial. Defendants only argument for
prejudice is that Morse will present damages evidence at the liability phase. (Defs.' Morse Mem.
at 7.) He will not be permitted to. Plaintiffs are instructed to carefully question Morse to ensure
that he does not delve into the specifics ofHopkins's injuries. To the extent Morse is asked
about Hopkins's specific injuries, the court will not permit an answer at the liability phase.
Thus, the court concludes that Morse may testify to his liability opinions at the liability
phase.
53
IV.
CONCLUSION
For the reasons stated above the court finds that:
•
Plaintiffs' motion to preclude electric chair evidence (Dkt. 81) is GRANTED.
(See supra Part III.A.3.)
•
The court RESERVES ruling on Plaintiffs' motion to preclude various hearsay
items (Dkt. 82). (See supra Part III.A.2.)
•
Plaintiffs' motion to exclude evidence ofHopkins's comparative negligence
(Dkt. 83) is GRANTED in part and DENIED in part. (See supra Part III.A. I .ii.a.)
Specifically, Defendants will be permitted to offer evidence ofHopkins's
drunkenness on the night of the accident (see supra Part III.A.1.ii.a.i), Hopkins
sneaking past a security guard at a bar (see supra Part III.A. I .ii.a.iii), and Hopkins
storming out of his friend's home at 4 a.m (see supra Part III.A.I.ii.a.iv).
Defendants are not permitted to offer evidence that Hopkins urinated in public on
the night of the accident. (See supra Part III.A. I.ii.a.ii.)
•
Defendants' omnibus motion (Dkt. 84) is GRANTED in part, DENIED in part,
and RESERVED in part. (See supra Part III.B.) Specifically, Gill is permitted to
offer his opinions based on the Klein/Birdwell Incident to the jury (see supra Part
III.B.1.i), and Plaintiffs are permitted to introduce the Benji Incident (see supra
Part III.B.2), local agency investigation reports, subject to objection at trial (see
supra Part III.B.4 ), railroad safety manuals and industry literature, subject to
objection at trial (see supra Part III.B.5), and Morse's opinions at the liability
phase (see supra Part III.B.9) to the jury. Plaintiffs are not permitted to disclose
the facts of the Klein/Birdwell Incident to the jury (see supra Part III.B.l.ii), nor
are Plaintiffs permitted to introduce Exhibits 54 and 87 (see supra Part.III.B.3), or
contracts regarding South Station to the jury (see supra Part.III.B.7). Finally, the
court reserves ruling on the admissibility of various government reports and
literature (see supra Part.III.B.6) and the "day in the life video" and before and
after photographs (see supra Part.III.B.8).
•
Plaintiffs' request to reconsider the admissibility of other prior incidents (Dkt. 92)
is DENIED. (See supra Part.III.B.2.i.)
•
Plaintiffs' motion to exclude evidence concerning Hopkins's knowledge of
electrical danger (Dkt. 87) is DENIED. (See supra Part III.A. l.ii.b.)
•
Plaintiffs' motion to preclude state case pleadings (Dkt. 88) is GRANTED. (See
supra Part III.A.4.)
•
Plaintiffs' motion to exclude evidence ofHopkins's drinking and marijuana use
(Dkt. 89) is GRANTED in part and DENIED in part. (See supra Part III.A. l .ii.c.)
54
Specifically, evidence ofHopkins's prior drinking is admissible but evidence of
Hopkins prior marijuana use is not.
•
Plaintiffs' motion to exclude text messages and phone records (Dkt. 90) is
DENIED. (See supra Part III.A.1.ii.d.)
•
Defendants' motion to preclude testimony of Michael Morse from the liability
phase of trial (Dkt. 99) is DENIED. (See supra Part III.B.9.)
SO ORDERED.
s/Nicholas G. Garaufis
Dated: Brook!)'!!, New York
ApriliJ 2016
NICHOLAS G. GARAUFIS' '
United States District Judge
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