Fields v. BNSF Railway Company

Filing 278

ORDER by Magistrate Judge Kimberly E. West granting in part and denying in part 163 Motion in Limine. (adw, Deputy Clerk)

6:16-cv-00213-KEW Document 278 Filed in ED/OK on 09/09/21 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
DARRYL E. FIELDS,

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Plaintiff,
v.
BNSF RAILWAY COMPANY,
a corporation,
Defendant.

Case No. CIV-16-213-KEW

O R D E R
This matter comes before the Court on Defendant’s First Motion
in Limine (Docket Entry #163).

Defendant BNSF Railway Company

seeks to preclude Plaintiff from introducing evidence or argument
on several fronts, labeling the effort as an “omnibus” motion. The
Court will address each issue in turn.
1)

Any reference to Plaintiff’s gross wage or gross wage

losses because Plaintiff’s net wage loss is the appropriate measure
of damages.
(1980).

Norfolk

W. Ry. Co. v. Liepelt, 444 U.S. 490, 493

Under the persuasive reasoning stated in Johnson v. Union

Pacific R.R. Co., 2007 WL 2914886, *5 (D. Neb. Oct. 4, 2007), the
introduction

of

evidence

of

Plaintiff’s

gross

wages

will

be

relevant to the calculation of his net wages which clearly is the
limit upon Plaintiff’s recovery for lost wages.

The jury can be

properly instructed as to the calculation of recoverable wages in
order to make this limitation clear.

1

BNSF’s motion on this issue

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is DENIED.
2)
are

Any references to other areas of Plaintiff’s body which

not

identified

in

Plaintiff’s

prejudicial, and inadmissible.

Complaint

as

irrelevant,

Plaintiff states that he underwent

bariatric surgery at the recommendation of his physician before he
could be considered for back surgery – the body part allegedly
injured as a result of his employment with Defendant.
Defendant

does

discussed.

not

It

contend

only

seeks

that
to

this

exclude

presumably to avoid any surprise at trial.

surgery
any

In reply,

should

other

not

body

be

part,

With the clarification

that the bariatric surgery can be discussed, the motion on this
issue will be GRANTED.
3)

Any references or allusions, to the case at bar, as a

workers’ compensation case which would confuse the issues and lead
the jury to incorrectly conclude BNSF is strictly liable for
Plaintiff’s injuries merely because the incident occurred during
the course of employment.
exclusion

in

principal

Plaintiff does not appear to oppose the
with

the

clarification

that

worker’s

compensation can be referenced at trial to distinguish such claims
from

FELA.

The

motion

on

this

issue

will

be

GRANTED

with

Plaintiff’s clarification.
4)

Any reference to medical causation of any injury or

condition in terms of “played any part, however slight” or similar
standard should be excluded.

The Tenth Circuit reiterated the
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appropriate standard as follows:
“in comparison to tort litigation at common
law, ‘a relaxed standard of causation applies
under FELA.’” CSX Transp., Inc. v. McBride,
564 U.S. 685, 692, 131 S.Ct. 2630, 180 L.Ed.2d
637 (2011)(quoting Consol. Rail Corp. v.
Gottshall, 512 U.S. 532, 542–43, 114 S.Ct.
2396, 129 L.Ed.2d 427 (1994)). Under [FELA]
the test of a jury case is simply whether the
proofs justify with reason the conclusion that
employer negligence played any part, even the
slightest, in producing the injury or death
for which damages are sought.” Id. (alteration
in original) (quoting Rogers v. Mo. Pac. R.R.
Co., 352 U.S. 500, 506, 77 S.Ct. 443, 1 L.Ed.2d
493 (1957)).
Schulenberg v. BNSF Ry. Co., 911 F.3d 1276,
1286 (10th Cir. 2018)(full citations added by
this Court).
Defendant’s concerns pertaining to “but for” causation (which
is not permitted) and elimination of the requirement for reasonable
medical

probability

instruction.

can

be

addressed

through

an

appropriate

BNSF’s motion on this issue will be DENIED, with the

clarification that the jury instructions and the Tenth Circuit
will govern the appropriate causation standard.
5)

Any

reference

to

any

doctor

or

other

medical

technicians, or personnel whom the Plaintiff has seen or been
examined by at the request of BNSF as the “railroad doctor” or any
similar reference unless they are an employee of BNSF.

Plaintiff

is entitled to inform the jury as to which party retained the
medical personnel, the purpose for their retention, and which party
paid for their services.

The term BNSF seeks to preclude would
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unduly restrict Plaintiff’s ability to inform the jury of these
facts.

The motion will, therefore, be DENIED on this issue.

6)

References to functional capacity examinations as being

performed “on behalf of the insurance carrier.”

Plaintiff does

not oppose the request so it will be GRANTED.
7)

Any reference to how BNSF or other railroads conducted

certain operations in the past because it is unduly prejudicial
and not relevant to any claim or defense.

BNSF contends matters

such as the size of crews in the past have no bearing upon the
operations today and whether BNSF was negligent resulting in
Plaintiff’s injury. Plaintiff agrees that the issue has no bearing
on the facts of this case.
8)

Therefore, the motion will be GRANTED.

Any reference to the financial worth of BNSF, its parent

company, Berkshire Hathaway, or Plaintiff.

Such references should

be excluded from trial as prejudicial, unless made relevant by
some unforeseen presentation or argument at trial.

The motion on

this issue will be GRANTED.
9)
issue.

References to punitive damages.

Plaintiff concedes this

The motion will be GRANTED.

10)

Any claim that any damages awarded will be used for

charitable purposes and/or used to set up a charitable foundation.
Plaintiff concedes this issue.
11)

Evidence

or

The motion will be GRANTED.

argument

regarding

depositions

failure of BNSF to bring witnesses live to trial.
4

or

the

As this Court

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interprets BNSF’s argument, it would be inappropriate for either
party to argue that the opposing party should have brought a
witness to testify live at trial rather than by deposition or that
a deposition has less evidentiary value than the live testimony of
a witness.

Plaintiff agrees with this limitation.

The motion

will be GRANTED.
12)

All references to the BNSF railroad or the railroad

industry as “dangerous.”
because

the

FELA

requires

Plaintiff objects to this limitation
Defendant

to

provide

a

safe

work

environment and Defendant specifically failed to do so in this
case. This Court does not perceive that Defendant seeks to exclude
the type of argument or contention urged by Plaintiff.

Rather, it

only seeks to exclude generalizations of a dangerous industry.
This would appear to be irrelevant and potentially prejudicial to
Defendant.
13)

The motion will be GRANTED.
Any reference during voir dire, opening statement, or

closing argument concerning the size of BNSF’s counsel’s law firm.
Plaintiff states he has “no intention of commenting” on the size
of the law firm representing Defendant.

The motion will be

GRANTED.
14)

Any

reference

to

news

stories,

articles,

and

publications of any recent accidents involving the BNSF Railroad
and/or any investigations of BNSF Railroad by any governmental
agencies regarding safety.

Plaintiff concedes this issue.
5

The

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motion will be GRANTED.
15)

Any

reference

to

any

other

employee

claim

or

suit

involving BNSF or any testimony in any such suits, without the
Court

first

ruling

on

the

relevancy,

admissibility of such matters.

materiality,

and

Plaintiff appears to not oppose

the proposed procedure but then states any issue should be taken
up at the Pretrial Conference.

It seems only appropriate that the

determination of relevancy and the admissibility of any other claim
or suit should be made by the Court prior to presentation to the
jury.

To that extent, the motion will be GRANTED.
16)

Any reference to objections to discovery made by BNSF.

Although Plaintiff objects to this restriction, it is appropriate.
The motion will be GRANTED.
IT IS THEREFORE ORDERED that Defendant’s First Motion in
Limine (Docket Entry #163) is hereby GRANTED, in part, and DENIED,
in part, as more fully set forth herein.
IT IS SO ORDERED this 9th day of September, 2021.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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