Wilks v. BNSF Railway Company
Filing
264
ORDER by Magistrate Judge Kimberly E. West granting in part and denying in part 158 Omnibus Motion in Limine. (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.
Case No. CIV-18-080-KEW
O R D E R
This matter comes before the Court on Plaintiff’s Omnibus
Motion in Limine (Docket Entry #158).
Plaintiff seeks to preclude
Defendant BNSF Railway Company (“BNSF”) from introducing evidence
or argument with regard to several enumerated issues.
The Court
will address each issue in turn.
1)
Any
reference
to
worker’s
compensation,
or
to
any
collateral source payments, adjustments, or other assistance.
This Court addressed this issue in Orders ruling on BNSF’s Fifth,
Sixth
and
Tenth
Motions
in
Limine.
References
to
worker’s
compensation shall be excluded from trial – except to the extent
it
is
mentioned
compensation cases.
to
distinguish
FELA
cases
from
worker’s
Collateral source payments are generally not
admissible but the motion will be denied because under the very
narrow circumstances outlined in the Orders on BNSF’s Sixth and
Tenth Motions in Limine, the evidence may be admissible.
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The
motion
will
be
GRANTED
as
to
worker’s
compensation
but
the
remainder of the motion will be DENIED.
2)
Any reference to the Federal Railroad Administration as
having enforcement jurisdiction over the workplace in question,
that the agency approved of BNSF’s workplace, or that Plaintiff’s
claim is preempted.
limitation.
This
It is unclear the precise purpose of this
Court,
however,
can
perceive
of
relevant
references to the FRA, including the inspection of the cracked
knuckle by that entity and whether it should have been detected.
Not knowing the potential ramifications of this exclusion, this
motion will be DENIED at this time to be re-urged, if necessary.
3)
Any
suggestion
that
Plaintiff
was
contributorily
negligent in using the equipment provided by BNSF or by failing to
use her own equipment.
Since BNSF has the non-delegable duty to
provide a safe workplace to Plaintiff, it would be inconsistent to
permit a suggestion of contributory negligence on Plaintiff’s part
to the jury.
4)
This motion will be GRANTED.
Any reference to tort reform.
BNSF concedes this issue.
The motion will be GRANTED.
5)
Any reference to offers of settlement.
this issue.
6)
BNSF concedes
The motion will be GRANTED.
Any out-of-court statements by counsel for Plaintiff.
BNSF objects to this exclusion because it does not know to what
statements Plaintiff may be referring.
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Under some circumstances,
statements of counsel can be used without running afoul of the
hearsay rule.
Fed. R. Evid. 801(d)(2).
Accordingly, without more
information as to the precise nature of the statements Plaintiff
is contemplating, the motion will be DENIED. Counsel is admonished
to reveal any such statements out of the presence of the jury
before publishing them.
7)
Any statements suggesting that money won’t undo the
injury or damage.
BNSF concedes this issue.
The motion will be
GRANTED.
8)
Any statements to suggest that Plaintiff or Plaintiff’s
counsel is motivated in this action by greed.
issue.
The motion will be GRANTED.
9)
risk.
BNSF concedes this
Any reference or suggestion that Plaintiff assumed the
BNSF generally concedes the issue.
The motion will be
GRANTED.
10)
or
would
Any suggestion that a hypothetical employer would have
be
required
to
provide
accommodations
to
Plaintiff
pursuant to the ADA or any other statute or regulation.
concedes the issue.
11)
BNSF
The motion will be GRANTED.
Any suggestion that pain and suffering and other non-
pecuniary elements of damage can be reduced to present value. BNSF
concedes this issue.
12)
The motion will be GRANTED.
Any attempt to suggest Plaintiff’s damages should be
reduced because they were caused by medical treatment for her
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injuries.
13)
BNSF concedes this issue.
The motion will be GRANTED.
Any reference to past bad acts/prior discipline/prior
employment incidents.
BNSF generally concedes the issue, although
it states that Plaintiff should have to identify any such evidence
that she seeks to exclude.
Additionally, BNSF concedes the issue
subject to the rulings on its own motions in limine.
The motion
will be GRANTED.
14)
Any
reference
to
drinking,
prior
or
other
medical
conditions, other incidents, and family medical history.
states
that
the
exclusion
could
Plaintiff’s mental health.
include
evidence
BNSF
related
to
This Court does not perceive that
Plaintiff seeks to exclude any evidence related to the damage claim
she is making in this action.
The motion will be GRANTED as to
all of the referenced matters which are not encompassed by the
claim for damages in this case.
15)
Any deposition testimony from corporate representatives,
other than testimony Plaintiff elects to use.
Until this Court
has been apprised of whether the deposition testimony of BNSF’s
corporate representative qualifies for admission under Fed. R.
Civ. P. 32(a) and Fed. R. Evid. 804, the motion will be DENIED.
16)
Any reference to previous settlements.
BNSF states that
the evidence pertaining to the van accident in which Plaintiff was
involved and settlement of that claim against BNSF is admissible
and relevant.
The resolution of the claim associated with the van
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accident may be presented without reference to the details of the
settlement.
17)
The motion will be GRANTED.
Any references to Plaintiff’s past marriages.
concedes this issue.
18)
BNSF
The motion will be GRANTED.
Any claim that Plaintiff’s “nomadic existence” in recent
years has a negative impact on her daughter.
BNSF generally
concedes this issue, although it asserts the evidence of such a
“nomadic existence” may be relevant should Plaintiff assert she
was forced to live that way because of BNSF’s treatment of her.
The specific issue presented in the motion will be excluded.
Should her living conditions be relevant for another purpose, the
Court will take the matter up at trial.
As it is filed, the motion
is GRANTED.
19)
Any reference to a lack of similar incidents. The Court
will deny the motion at this time.
A possibility exists that the
issue of whether BNSF was put on notice of problems in the removal
of the cotter pin and, therefore, had duty to address the issue to
provide a safe workplace will become relevant.
The jury can be
instructed as to BNSF’s duty to Plaintiff such that unintentional
prejudice does not result from the jury discovering only one other
such incident has occurred on record.
The motion will be DENIED.
IT IS THEREFORE ORDERED that Plaintiff’s Omnibus Motion in
Limine (Docket Entry #158) is hereby GRANTED, in part, and DENIED,
in part, as more fully set forth herein.
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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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