Lofgren v. BNSF Railway Company

Filing 100

ORDER by Senior Judge Mark W. Bennett granting in part and denying in part 88 Motion in Limine. See order for details. (RM)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
RICHARD A. LOFGREN,
Plaintiff,
No. 4:15-CV-0083-MWB-ARS

vs.
BNSF RAILWAY COMPANY, a
Delaware corporation,
Defendant.

OPINION AND ORDER
REGARDING DEFENDANT’S
MOTION IN LIMINE

___________________________
TABLE OF CONTENTS
I. 

INTRODUCTION........................................................................... 2 

II. 

LEGAL ANALYSIS ........................................................................ 3 
A. 
Evidence Of BNSF’s Size And Financial Condition ......................... 3 
B. 
Evidence Of Post-Accident Measures ........................................... 4 
C. 
Evidence Of Safer Methods ....................................................... 6 
D. 
Evidence Of Prior Incidents ...................................................... 9 
E. 
Offset Of Past Medical Expenses .............................................. 10 
F. 
Evidence Of Gross Income ..................................................... 11 
G. 
Evidence Of Subsequent Medical Conditions ............................... 13 

III. 

CONCLUSION ............................................................................ 14 

I.

INTRODUCTION

This is a civil lawsuit pursuant to the Federal Employers’ Liability Act (FELA),
45 U.S.C. § 51, et seq., brought by plaintiff Richard Lofgren against his employer,
defendant BNSF Railway Company. Mr. Lofgren alleges that he was injured on August
3, 2012, in the area of milepost 237.8 near Oswego, Montana, when he stepped in a
badger hole on railroad property covered with vegetation while out of his train, which
was stopped on the main line, to perform a roll-by safety check of another train, which
was passing on a siding. Mr. Lofgren claims he suffered a severe and permanent injury
to his Achilles tendon which resulted in his disability and departure from the railroad.
Mr. Lofgren asserts claims against BNSF for negligence and violation of a safety
regulation, 49 C.F.R. § 213.37, in failing to maintain its right of way. BNSF alleges
Mr. Lofgren was walking in an improper place at the time of his injury, contrary to his
training and operating rules. BNSF also alleges that Mr. Lofgren’s claims about his
injury are not supported by the medical records; that he is not permanently disabled; that,
if he wanted to work, BNSF was willing to retrain him and place him in a potentially
higher-paying job; and that, before he was injured, Mr. Lofgren was planning to retire
in December 2012. A jury trial in this matter is set to begin on May 21, 2018.
In anticipation of the jury trial, BNSF filed its April 17, 2018, Motion In Limine,
challenging six categories of evidence.1 Mr. Lofgren filed his Response on April 24,

1

Both parties had filed motions in limine prior to an earlier trial setting. United
States District Judge Ralph R. Erickson filed a ruling on those motions on February 1,
2017, before this case was reassigned to me on March 9, 2017. BNSF asserts that,
because admissibility is largely subject to the trial court’s discretion, and because my
September 1, 2017, Trial Management Order for Civil Jury Trial set forth specific
deadlines and requirements for motions in limine, it has filed the present Motion. BNSF’s
Motion is the only one currently pending.
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2018. I do not find oral arguments on the Motion to be necessary, so it is deemed fully
submitted on the parties’ written submissions.
II.

LEGAL ANALYSIS

I will consider, in turn, the categories of evidence that BNSF seeks to exclude.
A.

Evidence Of BNSF’s Size And
Financial Condition

First, BNSF seeks an order excluding references to or evidence of its size and
financial wherewithal. Slightly more specifically, BNSF seeks exclusion of references
“to BNSF Railway Company or the railroad’s parent, Berkshire Hathaway, Inc., as large
and wealthy corporations [and] to Berkshire Hathaway’s primary investor, Warren
Buffett.” BNSF’s Memorandum, 2. BNSF contends that such evidence is not relevant
to any issue in the case, could cause bias, and could distract the jury, so that it should be
excluded pursuant to Rules 401, 402, and 403 of the Federal Rules of Evidence.
Mr. Lofgren argues that this part of BNSF’s Motion is not a proper subject in limine,
because he has not yet offered any such evidence to which BNSF could object. He urges
me to reserve ruling until specific objections are made at the time any such references or
evidence are presented. Next, Lofgren argues that BNSF has boasted of its size and the
number of people it employs, so that it should likewise be precluded from offering any
such references or evidence, if he cannot do so. Lofgren also argues that jurors will need
to compare BNSF’s conduct to that of a similar “entity,” which necessarily encompasses
BNSF’s size and financial status, when deciding if BNSF acted with due care. He
represents that, with respect to BNSF’s financial status and wealth, he does not intend to

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introduce such evidence in an improper attempt to invoke juror passion, sympathy, or
prejudice.2
I can see where, particularly in a case that does not involve punitive damages,
references to or evidence of a corporate defendant’s wealth or financial condition likely
have little probative value, while they could be unduly prejudicial, because they might
invite a decision on an “improper basis,” particularly an “emotional one.” FED. R. EVID.
403, Advisory Committee Notes; see also United States v. Bell, 761 F.3d 900, 912 (8th
Cir. 2014). Also, I find Mr. Lofgren’s arguments that such evidence is more probative
than prejudicial unconvincing, at least in the abstract. Thus, this part of BNSF’s Motion
In Limine is granted, but without prejudice to demonstration by Mr. Lofgren during
trial, but outside the presence of the jury before any such evidence is offered, that specific
evidence of BNSF’s size or financial condition is probative in the specific context in
which it would be offered.
B.

Evidence Of Post-Accident Measures

Second, BNSF seeks exclusion of evidence about any post-incident rule changes
or repairs around the right-of-way in Oswego, Montana, as inadmissible pursuant to
Rules 402, 403, and 407. BNSF contends that no exception to exclusion of this evidence
under Rule 407, such as to show ownership or for impeachment, is applicable, here, so
that the only possible purpose is to try to show negligence, which is the prohibited
purpose. BNSF also argues that the admission of subsequent remedial measures evidence
would create a false impression that the incident heightened BNSF’s safety awareness, so
that it should be excluded pursuant to Rules 401, 402, and 403. Mr. Lofgren points out
2

In his February 1, 2017, Order On Motions In Limine (docket no. 64), Judge
Erickson concluded this information is immaterial and irrelevant to any issues in the
lawsuit, so he granted the comparable part of BNSF’s prior motion.
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that BNSF has not identified a single post-incident remedial measure for the court to
exclude. He argues that a blanket exclusion, without consideration of specific evidence
and the possibility that such evidence could be offered for a permissible reason, is
inappropriate.

He argues that such evidence may be admissible to prove control,

feasibility, industry standards, or to impeach trial testimony.
Rule 407 does bar admissibility of evidence of subsequent measures “that would
have made an earlier injury or harm less likely to occur” to prove “negligence; culpable
conduct; a defect in a product or it its design; or a need for a warning or instruction.”
FED. R. EVID. 407. As Mr. Lofgren contends, however, Rule 407 also includes the
following exceptions:
But the court may admit this evidence for another
purpose, such as impeachment or—if disputed—proving
ownership, control, or the feasibility of precautionary
measures.
FED. R. EVID. 402; see also Stevens v. Bangor and Aroostook R.R. Co., 97 F.3d 594,
598-99(1st Cir. 1996) (FELA case examining the scope and exceptions to Rule 407).
The Eighth Circuit Court of Appeals has also recognized “that there is an exception to
Rule 407 when remedial action is ‘mandated by superior governmental authority.’”
Cowden v. BNSF Ry. Co., 690 F.3d 884, 888 (8th Cir. 2012) (quoting O’Dell v.
Hercules, Inc., 904 F.2d 1194, 1204 (8th Cir. 1990)). The First Circuit Court of Appeals
explained, some time ago, that when evidence was not presented to the jury directly or
by inference as subsequent remedial measures, Rule 407 did not apply. Stevens, 97 F.3d
at 599. Thus, the purpose and context of the evidence supposedly showing subsequent
remedial measures is critical to the admissibility of such evidence. Here, I cannot
determine any of those things, where BNSF has not specifically identified the supposed
evidence of remedial measures, and I have no way to determine the purpose for which

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such evidence might be offered, to determine the applicability of Rule 407’s bar or its
exceptions.
This part of BNSF’s Motion is denied, without prejudice to reassertion if any such
evidence is actually offered.
C.

Evidence Of Safer Methods

BNSF also seeks to exclude evidence of safer methods of performing
Mr. Lofgren’s trackside duties or evidence of safer vegetation management policies or
procedures. BNSF argues that such evidence is improper and unhelpful to the jury.
Specifically, BNSF argues that the evidence at trial will demonstrate that Mr. Lofgren
performed his roll-by inspection from an improper and unforeseeable position. BNSF
argues that evidence that Mr. Lofgren might offer about what is “possible” for BNSF to
do at the point where he conducted his roll-by inspection, such as building a walkway, is
irrelevant and inadmissible, because the question is whether the railroad met its standard
of care to provide a reasonably safe work environment, not whether it could have
employed safer methods, citing, inter alia, Darrough v. CSX Transp., Inc., 321 F.3d
674, 676 (7th Cir. 2003). BNSF also argues that Mr. Lofgren’s argument that the
railroad should have built a walkway is inconsistent with the law, so that it is inadmissible
under Rule 403, because the Federal Railroad Safety Act (FRSA) prohibits state law
interference with federal railroad oversight, and 49 C.F.R. § 213.37 dictates a railroad’s
duties alongside a roadbed.
Mr. Lofgren argues that, not only has BNSF failed to identify specific evidence at
issue, the case law compels admission of alternative work methods. That case law, he
contends, uniformly concludes that what is reasonably safe for purposes of determining
negligence and liability under FELA is affected by the alternatives available, citing, in

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particular, Rodriguez v. Delay Connecting R. Co., 473 F.2d 819, 821 (6th Cir. 1973).
He also argues that the FRSA does not preclude “safer methods” evidence.
BNSF is correct that the main question in a FELA negligence case is, as the
Seventh Circuit Court of Appeals put it, “whether the railroad exercised reasonable care
in creating a reasonably safe working environment, not whether that working
environment could have been safer.” Darrough, 321 F.3d at 676; Walker v. Northeast
Regional R.R. Corp., 225 F.3d 895, 899 (7th Cir. 2000) (FELA case explaining that
“[s]afer methods . . . may be available, but [the railroad] need only use a reasonably safe
method”). On the other hand, Mr. Lofgren is correct that, in Rodriguez, the Sixth Circuit
Court of Appeals observed,
[A]lternatives often have a significant bearing on what is
“reasonable.” See Stone v. New York, C. & St. L. RR Co.,
344 U.S. 407, 73 S.Ct. 358, 97 L.Ed. 441, rehearing denied,
345 U.S. 914, 73 S.Ct. 639, 97 L.Ed. 1348 (1953), wherein
evidence of three alternative methods of track tie removal was
admitted.
Rodriguez, 473 F.2d at 821. The court also observed, “Evidence on the practices of
other railroads is generally admissible in F.E.L.A. actions.” Id. (citing Baltimore &
Ohio RR. Co. v. Groeger, 266 U.S. 521 (1925), and Schwer v. New York, C & St. L.
RR. Co., 161 Ohio St. 15, 117 N.E.2d 696 (1954)). Furthermore, when the question is
the plaintiff employee’s contributory negligence, safer alternatives to the employee’s
conduct are probative and admissible:
To illustrate, in [Jenkins v. Union Pacific R.R. Co., 22 F.3d
206 (9th Cir.1994)], the employer produced evidence that the
plaintiff violated company safety rules in performing the job
in the manner in which he did. Because this evidence
supported the employer’s argument that the plaintiff had a
safer method of performing his job, the court “agree[d] with
Union Pacific that the jury could rationally find that Jenkins
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contributed to his own injury by violating the operating rule.”
Id. at 212.
Fashauer v. New Jersey Transit Rail Operations, Inc., 57 F.3d 1269, 1279 (3d Cir.
1995). Indeed, here, BNSF specifically asserts, in its contributory negligence defense,
that Mr. Lofgren had safer methods of performing his roll-by inspection.
Here, the jury instructions will make plain that the question is whether BNSF
provided a reasonably safe working environment, but that does not mean that evidence
of safer alternatives is inadmissible. I find guidance from a Sixth Circuit case, in the
analogous context of a Jones Act case:
[W]e reject Defendants[’] argument that proof of a
safer work environment or methods is inadmissible. The
Federal Rules of Evidence require district courts to admit all
relevant evidence unless such evidence is otherwise
inadmissible. See Fed.R.Evid. 402. The rules define relevant
evidence as “evidence having any tendency to make the
existence of any fact that is of consequence to the
determination of the action more probable than it would be
without the evidence.” Fed.R.Evid. 401 (emphasis added).
As the Supreme Court and this Court have noted on numerous
occasions, this standard of relevancy is liberal. Daubert v.
Merrell Dow Pharms., Inc., 509 U.S. 579, 587, 113 S.Ct.
2786, 125 L.Ed.2d 469 (1993); Hildebrand v. Bd. of Trustees
of Mich. State Univ., 607 F.2d 705, 713 n. 15 (6th Cir.1979).
We believe that evidence of a safer environment or
method is relevant within the meaning of Rule 401. Plaintiff
is suing Defendants for failure to maintain safe working
conditions and negligence and thus must demonstrate that
Defendants failed to exercise reasonable or ordinary care in
outfitting the kitchen. “Typically, this involves a person’s
giving attention both to possible dangers, mistakes and pitfalls
and to ways of ensuring that these pitfalls do not materialize.”
Black’s Law Dictionary 204 (7th ed.1999) (defining care in
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the context of negligence). Proof that a safer alternative
existed makes it “more probable” that Defendants failed to
exercise reasonable care in outfitting the kitchen.
Churchwell v. Bluegrass Marine, Inc., 444 F.3d 898, 905 (6th Cir. 2006). For the same
reasons, I conclude that evidence of safer methods is relevant and admissible in this case.
BNSF’s request for a blanket exclusion of “safer methods” evidence pertaining to
Mr. Lofgren’s performance of trackside duties or BNSF’s vegetation management
policies or procedures is denied.
D.

Evidence Of Prior Incidents

BNSF also seeks to exclude what it brands as “rumors of dissimilar prior slips,
trips, or falls at other locations.” BNSF argues that such evidence should be excluded
on two grounds: (1) it is too different and remote to be relevant; and (2) it is substantially
more prejudicial than probative. BNSF argues that Mr. Lofgren cannot show that any
employee encountered substantially similar alleged conditions in or around the switch in
Oswego, Montana. Indeed, BNSF contends that the facts of any prior incidents were not
explored in discovery, evidence regarding the actions of other employees in prior
incidents is lacking, and the conditions at the other locations are unknown. Even if
Mr. Lofgren can establish similarity, BNSF argues that this evidence should be excluded
as more prejudicial than probative, especially because of the ambiguity surrounding any
prior incident, so that exploring any incident would waste time and judicial resources to
determine whether newly-identified prior incidents are “substantially similarly,” with
possibilities of undue delay from a mini-trial.
Mr. Lofgren responds that BNSF’s motion is improper because it fails to cite
specific evidence. He also argues that BNSF’s view of admissibility under Rules 401,
402, and 403 is too restrictive, because, here, evidence pertaining to injuries and claims
of other BNSF employees may be relevant and probative depending on the evidence and
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claims presented at trial, and the evidence of other injuries or claims from other BNSF
employees who have worked for BNSF, performing the same job, in similar areas, is
relevant to prove the issues in dispute, including foreseeability.3
Mr. Lofgren is correct, that prior accidents or incidents, or the lack of them, may
be relevant to foreseeability. See Cowden v. BNSF Ry. Co., 690 F.3d 884, 896 (8th Cir.
2012). On the other hand, even accidents or incidents at the same location may not be
sufficiently similar to be admissible. See Grogg v. Missouri Pac. R.R. Co., 841 F.2d
210, 214 (8th Cir. 1988). Here, of course, I cannot determine admissibility of prior
incidents merely from the parties’ arguments, which do not identify any specific incidents
at all, let alone with sufficient detail to allow me to assess the degree of similarity, the
potential for probative value, whether any probative value is outweighed by potential
prejudice, or whether allowing the evidence might let proceedings devolve into a minitrial of incidents that are not before the jury for determination.
This part of BNSF’s Motion is denied without prejudice to timely reassertion
should such evidence be offered.
E.

Offset Of Past Medical Expenses

Next, BNSF argues that, if Lofgren receives a favorable verdict, past medical
expenses that have been paid by BNSF must be removed from the total. More pertinently,
in the context of a motion in limine, BNSF argues that Lofgren cannot seek to recover
medical bills that BNSF has already paid, so evidence of all past medical bills that BNSF

3

In his February 1, 2017, Order On Motions In Limine (docket no. 64), Judge
Erickson granted BNSF’s prior motion to exclude evidence of prior incidents, statistics,
and prior lawsuits, but noted that, because the record was not fully developed on any of
those issues, if Mr. Lofgren had evidence that he sought to introduce on any of these
issues, he should bring it to the court’s attention outside the jury’s presence.
10

has paid should be excluded, or Lofgren will enjoy a windfall double recovery. BNSF
argues, alternatively, that the verdict form should exclude any reference to past medical
expenses, because the jury might award more past medical damages than what has been
paid. Mr. Lofgren argues that BNSF’s motion overlooks the relevancy of his past
medical expenses as charged, versus some unsubstantiated discount; his past medical bills
are relevant to prove his past medical expenses, which are a specific item of damages;
and his medical bills—as charged—are also relevant and admissible to prove the costs of
his future medical expenses. Mr. Lofgren argues that I should deny this part of BNSF’s
motion and leave any offset to be determined post-trial.4
I agree with Mr. Lofgren that he is entitled to past medical expenses and that his
past medical expenses are relevant and not unduly prejudicial on any future medical
expenses. FED. R. EVID. 401, 402, 403. That said, BNSF should not be subjected to
double payment, nor is Mr. Lofgren entitled to double recovery, for medical bills that
BNSF has already paid. The most appropriate solution, however, is not requiring the
jury to determine any offset nor barring all evidence of past medical expenses, as BNSF
suggests. Rather, as Mr. Lofgren suggests, the appropriate solution is to determine the
appropriate offset for any past medical expenses post-trial, as an accounting matter.
Therefore, this part of BNSF’s Motion is denied.
F.

Evidence Of Gross Income

BNSF also seeks exclusion of evidence of Mr. Lofgren’s gross income. BNSF
argues that it is well-settled that FELA damages awards dealing with lost wages are not

4

In his February 1, 2017, Order On Motions In Limine (docket no. 64), Judge
Erickson deferred ruling on the form of the verdict and applicable set offs under 45
U.S.C. § 55 until the record was fully developed.
11

subject to income taxation.5 BNSF argues that Mr. Lofgren failed to produce his tax
returns for years other than 2015 and 2016, and provided, instead, only his Form W-2s,
which showed his gross wages and his tax withholding. Consequently, BNSF argues that
the jury would have to hazard a guess as to the net income to which Lofgren is entitled.
Mr. Lofgren argues that his argument will be consistent with the law and the jury
instructions regarding damages, so specific objections should be made at trial.
BNSF is correct that the Supreme Court has held that it was error to refuse an
instruction that the final award of damages, including damages for lost wages, in a FELA
action was not subject to income tax. Norfolk & Western Ry. v. Liepelt, 444 U.S. 490,
498 (1980); see also Gander v. FMC Corp., 892 F.2d 1373, 1381 (8th Cir. 1990) (citing
Liepelt); 8th Cir. Model 15.73. In Liepelt, the Court explained,
The amount of money that a wage earner is able to contribute
to the support of his family is unquestionably affected by the
amount of the tax he must pay to the Federal Government. It
is his after-tax income, rather than his gross income before
taxes, that provides the only realistic measure of ability to
support his family.
Liepelt, 444 U.S. at 493; see also 8th Cir. Model 15.73, cmt. (quoting this statement
from Liepelt).
The requirement that damages be based on after-tax income may present a problem
of proof, where Mr. Lofgren does not dispute that he has not provided tax returns for the
entire relevant period, showing what his after-tax income was, which would help jurors
determine the after-tax amount of any lost wages. On the other hand, gross income and
tax withholding are also probative, at least to some degree, of what his after-tax income

5

BNSF actually says the opposite in its Memorandum at 18. However, all of the
authority it cites establishes that FELA damages awards are not subject to income
taxation. Thus, I conclude that BNSF simply made a typographical error.
12

was and, hence, what his after-tax lost wages would be.

These are not issues of

admissibility of his gross income or his W-2s, however. The jurors will be instructed
that, when calculating lost earnings, if any, they should use after-tax earnings. They will
also be instructed that they must not engage in any speculation, guess, or conjecture in
awarding damages. Where BNSF does not appear to be seeking some discovery sanction,
its argument about the insufficiency of Mr. Lofgren’s evidence of gross income to
establish the proper amount of lost wages damages, if any, is just that, an argument that
can properly be made to the jury.
This part of BNSF’s Motion is denied.
G.

Evidence Of Subsequent Medical
Conditions

Finally, BNSF seeks to exclude evidence of subsequent and unrelated medical
conditions, including a tonsillectomy stemming from cancer treatment in 2016 and 2017.
BNSF asserts that such evidence is wholly unrelated to any injury, specifically, an ankle
injury, that Mr. Lofgren claims from BNSF’s conduct at issue in this case. BNSF argues
that evidence related to his subsequent cancer treatment would have no probative value,
but significant prejudicial impact and could cause confusion. Mr. Lofgren responds that
he does not intend to offer medical records related to his cancer treatment.
Therefore, this part of BNSF’s Motion is denied as moot.6

6

Indeed, it is clear that this portion of BNSF’s Motion In Limine could have been
resolved by good faith consultation of the parties and should not have required recourse
to a motion in limine at all.
13

III.

CONCLUSION

Upon the foregoing, BNSF’s April 17, 2018, Motion In Limine (docket no. 88) is
granted as to evidence of BNSF’s wealth or financial conduction, albeit without prejudice
to demonstration by Mr. Lofgren during trial, but outside the presence of the jury before
any such evidence is offered, that specific evidence of BNSF’s wealth or financial
condition is probative in the specific context in which it would be offered. BNSF’s
Motion In Limine is otherwise denied.
IT IS SO ORDERED.
DATED this 4th day of May, 2018.

______________________________________
MARK W. BENNETT
U.S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA
VISITING JUDGE

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