Steinherr v. CSX Transportation, Inc.

Filing 55

MEMORANDUM-DECISION AND ORDER denying 37 Motion in Limine; denying 38 Motion in Limine; granting in part and denying in part 49 Motion in Limine; denying 53 Letter Request. Signed by U.S. District Judge Mae A. D'Agostino on 12/8/11. (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
FRANK STEINHERR,
Plaintiff,
vs.

1:10-CV-0891
(MAD)

CSX TRANSPORTATION, INC.,
Defendant.
____________________________________________
APPEARANCES:

OF COUNSEL:

OFFICE OF MICHAEL FLYNN, PC
1205 Franklin Avenue
Suite 250
Garden City, New York 11530
Attorneys for Plaintiff

Marc T. Witzke, Esq.

ECKERT SEAMANS
10 Bank Street
Suite 1061
White Plains, New York 10606
Attorneys for Defendant

Thomas M. Smith, Esq.

Mae A. D’Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
INTRODUCTION
The trial of this action is scheduled to commence on December 12, 2011. Presently before
the Court are the parties’ motions in limine. Plaintiff seeks an order precluding defendant from
offering evidence that plaintiff is receiving disability benefits from the Railroad Retirement Board
(“RRB”) and for an order precluding defendant from introducing plaintiff’s disciplinary records.
(Dkt. No. 49). Defendant seeks an order from the Court permitting defendant to introduce the
RRB evidence. (Dkt. No. 37). Defendant also moves: (1) to preclude plaintiff from offering
expert witness testimony due to an untimely and improper expert disclosure; (2) to limit

plaintiff’s evidence of injuries to those injuries described in plaintiff’s answer to defendant’s
interrogatories; (3) to limit plaintiff’s loss of earnings claim to 2008 through 2012; (4) for an
order allowing defendant to offer plaintiff’s forms, submitted to the RRB, wherein plaintiff
described his physical conditions and limitations; and (5) for an order permitting defendant to
introduce evidence of plaintiff’s failure to follow safety rules. (Dkt. Nos. 38 and 53).

DISCUSSION
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. See Luce v. U.S., 469 U.S. 38, 40
n. 2 (1984); see also Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996) (“[t]he purpose of an in
limine motion is ‘to aid the trial process by enabling the Court to rule in advance of trial on the
relevance of certain forecasted evidence, as to issues that are definitely set for trial, without
lengthy argument at, or interruption of, the trial’”.) “A motion in limine to preclude evidence
asks the court to make a preliminary determination on the admissibility of the evidence under
Rule 104 of the Federal Rules of Evidence.” Blazina v. Port Auth. of New York and New Jersey,
2008 WL 4539484, at *1 (S.D.N.Y. 2008). As the disputes regarding the admissibility of
evidence are made outside the context of the trial, the Court’s rulings on the motions in limine
are, “subject to change when the case unfolds, particularly if the actual testimony differs from
what was expected”. Levitant v. City of New York Human Res. Admin., 2011 WL 795050, at *1
(E.D.N.Y. 2011) (quoting Luce, 469 U.S. at 41 (“[o]wing to its preliminary nature, an in limine
ruling, ‘is subject to change when the case unfolds’”.)
The Court addresses the parties’ multiple requests for relief seriatim.

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I.

RRB Benefits
Plaintiff argues that based upon the Supreme Court decision in Eichel v. New York Cent.

R.R. Co., 375 U.S. 253 (1963), defendant should be barred from making any reference to the fact
that plaintiff received collateral income in the form of disability benefits from the RRB.
Defendant, “recogniz[es] that some courts have erroneously deemed such evidence inadmissible”
but argues that Eichel did not create a “per se exclusion of collateral source evidence” and claims
that here, plaintiff’s receipt of benefits gave plaintiff an incentive and the financial means to
malinger. Therefore, defendant argues that the evidence is relevant and admissible under Fed. R.
Evid. 403 subject to a limiting instruction.1
In Eichel, the defendant offered evidence that the plaintiff received $190 a month in
disability pension payments under the Railroad Retirement Act of 1937 for the purpose of
impeaching the testimony of petitioner as to his motive for not returning to work and as to the
permanency of his injuries. Id. at 254. The trial court excluded the evidence.2 The Second
Circuit reversed the trial court, finding that it was prejudicial error to exclude the evidence. Id.
The Supreme Court reversed the judgment of the Second Circuit and held that evidence of a
disability pension in an FELA case was inadmissible in regard to the plaintiff’s extent or duration
of injury or to show that the plaintiff was not motivated to return to work. Id. at 255. The Court
held, “[i]nsofar as the evidence bears on the issue of malingering, there will generally be other
evidence having more probative value and involving less likelihood of prejudice than the receipt
of a disability pension.” Eichel, 375 U.S. at 255.

1

While defendant’s motion indicates that a proposed limiting instruction was annexed as Exhibit “1".
Defendant did not annex any exhibits to the motion.
2

The case was tried in the District Court for the Southern District of New York.
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Defendant’s argument is not a novel one. When faced with an analogous argument, the
majority of Circuit and District Courts have applied the Eichel doctrine and precluded the
admission of collateral benefits. Sheehy v. S. Pac. Transp. Co., 631 F.2d 649 (9th Cir. 1980);
Finley v. Nat’l R.R. Passenger Corp., 1 F.Supp.2d 440, 443 (E.D. Penn. 1998) (the court is not
permitted to balance the prejudicial effect against the probative value pursuant to Fed. R. Evid
403 because the receipt of pension benefits is prejudicial as a matter of law); Edsall v. CSX
Transp., Inc., 2008 WL 244344, at *2 (N.D. Ind. 2008) (the court precluded the defendant from
introducing evidence of RRB benefits based upon Fed. R. Evid. 403); Davis v. CSX Transp., Inc.,
2008 WL 2117151, at *2 (E.D. Tenn. 2008); Prater v. Consol. Rail Corp., 272 F.Supp.2d 706,
716 (N.D.Ohio 2003).
In support of the motion, defendant cites to two cases. In McGrath v. Consol. Rail Corp.,
176 F.3d 838, 841 (1st Cir. 1998), the defendant moved, in limine, to admit the evidence on the
issue of the plaintiff’s credibility and the plaintiff’s lack of motivation to return to work. The trial
court allowed evidence of plaintiff’s disability pension payments but, on several occasions, issued
cautionary instructions to the jury to consider the evidence only on the issue of malingering. Id.
at 841. The First Circuit held that the trial judge did not abuse his discretion and properly
received the evidence subject to Rule 403 balancing. Id. at 841. While the plaintiff argued that
Eichel precluded such evidence, regardless of the curative instructions, the Court disagreed,
noting that, “[w]e do not read Eichel as requiring the per se exclusion of collateral source
evidence in FELA cases”. Id. at 841. The Court concluded, “[i]f there is little likelihood of
prejudice and no strong potential for improper use, and a careful qualifying instruction is given,
the receipt of the compensation benefits may be admissible for the limited purpose of proving
another matter”. McGrath, 136 F.3d at 841.
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In Valentine v. CSX Transp., Inc., 2011 WL 2066705, at*2 (S.D. Ind. 2011), another case
cited by defendant, the court noted that while evidence of collateral source benefits is “generally
inadmissible”, the determination must be made based upon the facts of each case. The court
noted that the plaintiff, “does not dispute that he receives more money from disability payments
than he does from work” and one of the defendant’s claims at trial was that the plaintiff was
feigning permanency to avoid work. Id. The court denied the plaintiff’s motion in limine to
exclude such evidence and held, “[d]epending on how events unfold at trial, evidence of collateral
source benefits may be relevant to whether plaintiff has a motive for not returning to work and to
case doubt on the permanency of plaintiff’s injuries”. Id.
Still, other courts, adhering to the Rule 403 balancing test, have declined to follow the
McGrath holding. Schipper v. BNSF Ry. Co., 2009 WL 997149, at *2 (D. Kan. 2009) (the
defense counsel conceded that nothing in the record suggested that the plaintiff malingered); see
also Falconer v. Penn Mar., Inc., 396 F.Supp.2d 62, 67 (D. Maine 2005) (the defendant was free
to introduce evidence that the plaintiff was educated, an excellent candidate for vocational
retraining, and that he is not disabled but could not introduce evidence that he was receiving SSDI
benefits as it would “unnecessarily complicate the trial with complex issues and lead to juror
confusion”). In Mills v. Energy Transp. Corp., 29 F. App’x 744, 745 (2d Cir. 2002), the Second
Circuit cited to the McGrath decision and held that, “Eichel does not establish an absolute bar
against the admission of such evidence for purposes other than mitigation of damages”.
When presented with similar motions in limine, courts in this Circuit have held that, “the
presentation of such evidence before the jury is not allowed, although ‘such evidence may be
admissible if the plaintiff puts his financial status at issue’”. Ebert v. City of New York, 2006 WL
3627103, at *4 (S.D.N.Y. 2006) (citing Santa Maria v. Metro-North Commuter R.R., 81 F.3d 265,
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273 (2d Cir. 1996)). Accordingly, at this juncture, plaintiff’s motion in limine to preclude the
admissibility of evidence relating to RRB benefits is granted. However, this ruling is subject to
reconsideration based upon the evidence at trial. See Falconer, 397 F.Supp.2d at 67 (if the
plaintiff “opens the door” by placing his financial status at issue, the probative value is not
outweighed by the danger of unfair prejudice).

II.

Disciplinary Records
Rule 404 provides that “[e]vidence of a person's character or a trait of character is not

admissible for the purpose of proving action in conformity therewith on a particular occasion,”
Fed. R. Evid. 404(a), and that “[e]vidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show action in conformity therewith,” Fed. R.
Evid. 404(b). Rule 404(b) does, however, provide that other crimes, wrongs, or acts “may . . . be
admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.” Id. In determining whether to admit
evidence under Rule 404(b), the Second Circuit follows an “inclusionary rule, allowing the
admission of such evidence for any purpose other than to show . . . propensity, as long as the
evidence is relevant and satisfies the probative-prejudice balancing test of Rule 403.” U.S. v.
Inserra, 34 F.3d 83, 89 (2d Cir.1994).
Here, the Court has no information regarding plaintiff’s alleged disciplinary history or
specifically, what evidence plaintiff seeks to preclude. In defendant’s response to plaintiff’s
motion and in their own request for relief, defendant claims that the information involves
plaintiff’s failure to follow safety rules on various occasions during his work history. Defendant
argues that if plaintiff “opens the doors” and presents evidence of his favorable work history
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pertaining to safety rules, defendant should be permitted to introduce evidence regarding
plaintiff’s failure to follow such rules. At this time, outside of the context of trial, the Court is
constrained to rule on the admissibility of the information and reserves decision until the time of
trial.

III.

Expert Witnesses
Pursuant to the Uniform Pretrial Scheduling Order, plaintiff’s expert disclosure was due

90 days prior to the discovery deadline which was originally August 1, 2011. On July 21, 2011,
the deadline was extended to October 15, 2011. On November 7, 2011, defendant’s counsel
received plaintiff’s Rule 256(a)(2)(C) disclosure. On November 10, 2001, defense counsel
rejected the disclosure. On December 2, 2011, during the pretrial conference, plaintiff’s counsel
advised that he would not be calling Dr. Michael Martin Cohen or Dr. Roy Lefkoe at the trial of
this action. Accordingly, the Court considers this motion as it relates to the remaining proposed
expert witnesses: Dr. Joseph Lalka and Dr. Jacqueline Maier.
Local Rule 26.3 provides:
Production of Expert Witness Information
There shall be binding disclosure of the identity of expert witnesses.
The parties shall make such disclosure, including a curriculum vitae
and, unless waived by the other parties, service of the expert’s written
report pursuant to Fed. R. Civ. P. 26(a)(2)(B), before the completion
of discovery in accordance with the deadlines contained in the
Uniform Pretrial Scheduling Order or any other Court order. Failure
to comply with these deadlines may result in the imposition of
sanctions, including the preclusion of testimony, pursuant to Fed. R.
Civ. P. 16(f). If a party expects to call a treating physician as a
witness, the party must identify the treating physician in accordance
with the timetable provided in the Uniform Pretrial Scheduling Order
or other Court order.
N.Y.N.D.L.R. 26.3.
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In this matter, plaintiff has failed to comply with the applicable Local Rule or with the
Uniform Pretrial Scheduling Order. However, plaintiff asserts that defense counsel has received
the doctors’ records. Accordingly, the Court will allow plaintiff’s witnesses to testify. However,
the Court refrains from ruling as to extent of their testimony, including any opinions on causation
or plaintiff’s prognosis until the time of trial. Accordingly, defendant’s motion in this regard is
DENIED without prejudice and may be renewed at trial.

IV.

Limits on Plaintiff’s Evidence
Defendant seeks to limit plaintiff to introducing evidence regarding a lost wage claim

from 2008 through 2012. Plaintiff concedes this issue. Defendant also seeks to limit plaintiff’s
evidence regarding his injuries to those delineated in the Answers to Interrogatories. Plaintiff
responds that the injuries claimed “are precisely the injuries to be placed before the jury”. To the
extent that there is any further dispute on this issue, the Court declines to determine any
evidentiary issues that may arise under Rule 403 outside the context of the trial. Defendant’s
motion in this regard is DENIED without prejudice and may be renewed at trial.

V.

Admissibility of RRB Records
Defendant seeks to introduce plaintiff’s medical forms submitted in connection with his

RRB Benefits. Specifically, defendant seeks to introduce evidence that plaintiff suffers from
sleep apnea. The Court has not been provided with copies of the proposed submission.
Accordingly, assuming the parties cannot consent to redact the appropriate documents, the Court
will reserve on this issue. However, consistent with the Court’s ruling above, defendant is

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precluded from introducing any evidence relating to plaintiff’s receipt of RRB benefits.
Defendant’s motion in this regard is DENIED without prejudice and may be renewed at trial.

CONCLUSION
It is hereby
ORDERED, that plaintiff’s motion in limine (Dkt. No. 49) to preclude defendant from
offering any evidence relating to plaintiff’s receipt of RRB benefits is GRANTED; it is further
ORDERED, that plaintiff’s motion in limine (Dkt. No. 49) to preclude defendant from
offering evidence of plaintiff’s disciplinary records is DENIED with leave to renew, it is further
ORDERED, that defendant’s motion in limine (Dkt. No. 53) for an order permitting
defendant to introduce evidence of plaintiff’s failure to follow safety rules is DENIED with leave
to renew, it is further
ORDERED, that defendant’s motion in limine (Dkt. No. 37) for an order permitting
defendant to introduce evidence that plaintiff is receiving disability benefits is DENIED, it is
further
ORDERED, that defendant’s motion in limine (Dkt. No. 38) for an order precluding
plaintiff from offering expert testimony from Dr. Joseph Lalka and Dr. Jacqueline Maier is
DENIED with leave to renew, it is further
ORDERED, that defendant’s motion in limine (Dkt. No. 38) for an order precluding
plaintiff from offering evidence of injuries not listed in plaintiff’s Answer to Interrogatories is
DENIED with leave to renew, it is further
ORDERED, that defendant’s motion in limine (Dkt. No. 38) for an order limiting
plaintiff’s lost wage claim from 2008 through 2012 is DENIED as moot, it is further
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ORDERED, that defendant’s motion in limine (Dkt. No. 38) for an order permitting
defendant to introduce plaintiff’s forms submitted to the RRB is DENIED with leave to renew.
IT IS SO ORDERED.
Dated: December 8, 2011
Albany, New York

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