Smith v. BNSF Railway Company

Filing 105

ORDER granting 57 Motion in Limine. Signed by Honorable Timothy D. DeGiusti on 9/13/2011. (mb, )

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA

BILLY RAYNOR SMITH,
Plaintiff,
vs.
BNSF RAILWAY COMPANY,
Defendant.

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No. CIV-08-1203-D

ORDER
Before the Court is the motion in limine [Doc. No. 57] of Defendant BNSF Railway
Company (“BNSF”), seeking to exclude at trial Plaintiff’s evidence of damages calculations based
on Plaintiff’s delayed retirement age.

BNSF notes that Plaintiff’s expert economist, Leroy J.

Grossman, Ph.D., has prepared damages calculations based on the assumption that Plaintiff would
have continued working until age 66. However, BNSF argues that both Plaintiff and his wife
testified that Plaintiff would have received full retirement benefits from the railroad at the age of 61,
and both agreed that he would have retired at age 61. Accordingly, BNSF argues damages evidence
based on the assumption that he would have worked until age 66 is improper and contrary to
Plaintiff’s own testimony.
In response to the motion, Plaintiff concedes that age 61 is the appropriate retirement age on
which to base the calculation of his estimated earnings if he had continued working for BNSF.
Plaintiff expressly states his expert economist, Dr. Grossman, will “only provide testimony as to his
economic loss calculations based on the assumption that Plaintiff would have retired at age 61.”
Plaintiff’s response at page 1. Accordingly, Plaintiff agrees with BNSF that damages calculations
based on a later retirement should not be presented at trial. Based on the parties’ agreement, the

motion [Doc. No. 57] is GRANTED.
IT IS SO ORDERED this 13th day of September, 2011.

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