Wilks v. BNSF Railway Company

Filing 258

ORDER by Magistrate Judge Kimberly E. West granting in part and denying in part 151 Motion in Limine. The motion is denied as it pertains to BNSF's surveillance of Plaintiff, subject to re-urging at the appropriate time at trial. (adw, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
SAMANTHA WILKS,
Plaintiff,
v.
BNSF RAILWAY COMPANY,
a corporation,
Defendant.

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Case No. CIV-18-080-KEW

O R D E R
This matter comes before the Court on Defendant’s Eleventh
Motion in Limine (Docket Entry #151).

Defendant BNSF Railway

Company (“BNSF”) seeks to preclude Plaintiff from introducing
evidence or argument on BNSF’s discovery tactics and surveillance
of Plaintiff.

Clearly, discovery disputes, including any pretrial

motions, are not the grist for jury consideration and Plaintiff
does not contend otherwise.
BNSF also seeks to exclude any attack upon its decision to
conduct surveillance upon Plaintiff to assess the scope of her
alleged injuries.

BNSF contends it made the decision to engage an

investigator to perform surveillance on Plaintiff when one of her
treating physicians expressed concern about her “secondary gain
and shifting symptomology.”

BNSF also states that it has produced

all surveillance videos to Plaintiff it intends to use at trial.
It asks that Plaintiff not be permitted to “demonize” the practice

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of surveillance.
For her part, Plaintiff agrees that surveillance is common in
this type of litigation but argues it should be able to comment
upon the surveillance conducted, including what and when activity
was videoed.

Plaintiff also complains of the limitations brought

about by BNSF’s counsel upon the examination of the investigator
and his surveillance.

This is the subject of a motion in limine

filed by Plaintiff and will be addressed by separate Order.
This issue is not ripe for pretrial consideration since the
presentation of the evidence will necessarily direct the course of
the questioning and the relevancy of any attacks upon the manner
in which the surveillance was accomplished.

Certainly, each side

may present their version of what occurred during the course of
the surveillance and the resulting video will speak for itself.
As for now, this portion of the motion must be denied, subject to
re-urging if warranted at trial.
IT IS THEREFORE ORDERED that Defendant’s Eleventh Motion in
Limine (Docket Entry #151) is hereby GRANTED, in relation to any
evidence or argument pertaining to BNSF’s discovery tactics or
pretrial discovery disputes.

The motion is DENIED, as it pertains

to BNSF’s surveillance of Plaintiff, subject to re-urging at the
appropriate time at trial.

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IT IS SO ORDERED this 31st day of March, 2021.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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