United States District Court, S.D. Indiana, Indianapolis Division
ENTRY ON MOTIONS IN LIMINE
WALTON PRATT, JUDGE
matter is before the Court on Plaintiffs Ruth Ann
Jenkinson's (“Mrs. Jenkinson”) and Joe
Jenkinson's (“Mr. Jenkinson”) (collectively,
“Plaintiffs”) Motion in Limine
(Filing No. 95), and Defendant Norfolk Southern
Railway Company's (“Norfolk”) Motions in
Limine (Filing No. 98), to exclude certain
evidence and testimony at trial. For the following reasons,
Plaintiffs' Motion in Limine is granted in part
and denied in part, and Norfolk's Motions in
Limine are granted in part and denied in part.
Jenkinson is an Indiana resident who previously worked at
Community Hospital Anderson. On October 21, 2013, at
approximately 11:00 p.m., Mrs. Jenkinson drove her normal
route home from work-northbound on County Rd. 100W in
Lafayette Township, Madison County, Indiana. At the time that
Mrs. Jenkinson was driving home, a Norfolk freight train was
stopped on a railroad grade crossing intersection at Madison
Avenue (“the Crossing”). Norfolk's crew
members, Andrew J. Bragg and Thomas E. Abrell, parked the
train at the Crossing in order to conduct a mandatory air
brake test. At approximately 11:30 p.m., Mrs. Jenkinson
approached the Crossing and, because it was quiet and
completely dark, Mrs. Jenkinson struck the side of a
non-reflectorized Norfolk rail car.
summary judgment, the issues remaining for trial are: 1)
whether federal funds were used to install crossbuck signs at
the Crossing; 2) whether Norfolk acted negligently when
failing to train its crew members on Rule 123 of
Norfolk's operating rules; and 3) whether Norfolk acted
negligently in conducting the brake test at the Crossing,
rather than the Rydman & Fox bean facility (Filing
their Motion in Limine, Plaintiffs seek to prohibit
Norfolk from introducing or eliciting evidence regarding
thirty-five topics and Norfolk asks the Court to exclude
evidence that falls within twelve specific categories.
have broad discretion in ruling on evidentiary questions
during trial or before on motions in limine.”
Jenkins v. Chrysler Motors Corp., 316 F.3d 663, 664
(7th Cir. 2002). The court excludes evidence on a motion in
limine only if the evidence clearly is not
admissible for any purpose. See Hawthorne Partners v.
AT&T Technologies, Inc., 831 F.Supp. 1398, 1400
(N.D. Ill. 1993). Unless evidence meets this exacting
standard, evidentiary rulings must be deferred until trial so
questions of foundation, relevancy, and prejudice may be
resolved in context. Id. at 1400- 01. Moreover,
denial of a motion in limine does not necessarily
mean that all evidence contemplated by the motion is
admissible; rather, it only means that, at the pretrial
stage, the court is unable to determine whether the evidence
should be excluded. Id. at 1401.
parties' respective requests for orders in
limine to prohibit the introduction of certain
testimony and evidence at trial are addressed below.
Plaintiffs' Motion in Limine (Filing No.
request an order in limine on thirty-five topics.
Norfolk filed a Response on April 12, 2017, opposing only
fifteen of Plaintiffs' thirty-five Motions. (Filing
No. 111.) The Court will discuss each request in turn.
Any reference to Plaintiffs' Motion in
unopposed request to prohibit any reference to its Motion in
Limine in the presence of the jury, because such reference
would be irrelevant and unfairly prejudicial, is
Any reference to benefits from a collateral
ask the Court to prohibit any reference to Plaintiffs'
entitlement to any kind of benefits from a collateral source,
based on Indiana Code § 34-4-36-2. The Court notes that
Ind. Code § 34-4-36-2 has been repealed and replaced
with Ind. Code § 34-44-1-2, effective March 12, 2010.
Section 34-44-1-2 explains:
[i]n a personal injury or wrongful death action, the court
shall allow the admission into evidence of …proof of
collateral source payments other than: (A) payments of life
insurance or other death benefits; (B) insurance benefits
that the plaintiff or members of the plaintiff's family
have paid for directly; or (C) payments made by: (i) the
state or the United States; or (ii) any agency,
instrumentality, or subdivision of the state or the United
States…that have been made before trial to a plaintiff
as compensation for the loss or injury for which the action
Ind. Code Ann. § 34-44-1-2. Plaintiffs' unopposed
request to exclude any reference to benefits from a
collateral source is GRANTED.
Any reference to Norfolk being personally liable for
unopposed request to prohibit any reference to Norfolk being
personally liable to pay any judgment rendered in this case,
Any reference to photographs, articles, or demonstrative
video tapes without tendering such exhibits to the Court and
Plaintiffs' counsel outside the presence of the
ask the Court to exclude any photographs, articles, or
demonstrative video tapes unless Norfolk tenders such
exhibits to the Court and Plaintiffs' counsel outside the
presence of the jury. The parties should have already
disclosed all exhibits according to the Case Management Plan
and pre-trial orders. In addition, the parties are required
to submit exhibit binders and other exchanges such that all
photographs, articles, or demonstrative video tapes will be
disclosed prior to trial. The Court DENIES
Plaintiffs' request for additional disclosures because
Plaintiffs have presented no evidentiary basis for such a
Any reference to Plaintiffs' prior claims for personal
injury, workers' compensation, or other
unopposed request to prohibit any reference to prior claims
made by Plaintiffs for personal injury, workers'
compensation, or medical benefits of any kind, because such
reference would be irrelevant and unfairly prejudicial, is
Any reference to pre-judgment interest.
unopposed request to prohibit any reference to pre-judgment
interest that will be added to any actual damages awarded in
this case is GRANTED.
Any reference to Plaintiffs dismissing previously alleged
claims against previously named defendants, including The
rely on Rules 401, 402 and 403 when requesting the Court to
prohibit any reference to previously dismissed claims against
previously named defendants, including The Andersons, Inc. In
response, Norfolk notes that Plaintiffs dismissed The
Andersons, Inc. after determining that a
“reflectorization” claim is preempted by federal
law, and it does not intend to offer such evidence unless
Plaintiffs open the door. Accordingly, Plaintiffs' Motion
in Limine is GRANTED.
Any reference to Plaintiffs' jury
unopposed request to prohibit any reference to Plaintiffs
hiring of a jury consultant is GRANTED.
Any testimony from Carl Sanders or any other expert witness
who was not disclosed during discovery.
ask the Court to exclude any expert witness who was not
disclosed during discovery, specifically, Carl Sanders,
because Norfolk failed to produce Sanders for deposition. In
response, Norfolk argues that Plaintiffs were aware of
Sanders and could have subpoenaed Sanders at any time after
he filed his Declaration on September 16, 2016.
Court is unable to determine from Plaintiffs' Motion in
Limine and Norfolk's Response, whether there are grounds
for excluding Sanders. The parties should be prepared to
discuss this issue at the final pretrial conference. For this
reason, the Court takes this issue of Plaintiffs' Motion
in Limine under advisement.
Any testimony from fact witnesses who were not disclosed
unopposed request to prohibit Norfolk from calling any fact
witnesses who were not disclosed during the course of
discovery is GRANTED. This motion applies to
Any testimony that Norfolk did not have a responsibility or
obligation to warn motorists of an extra-hazardous
ask the Court to prohibit testimony that Norfolk did not have
a responsibility to warn motorists of an extra-hazardous
crossing. The Court first notes that it concluded as a matter
of law that the Federal Railroad Safety Act (“the
Act”) preempts a plaintiff from asserting state law
tort claims regarding the inadequacy of warning signs and
devices where federal funds were used to install the devices.
See CSX Transp., Inc. v. Easterwood, 507 U.S. 658,
671 (1993) (noting the Act preempts state tort law claims
against a railroad, alleging that warning devices installed
with federal funds are inadequate); Norfolk S. Ry. Co. v.
Shanklin, 529 U.S. 344, 358 (2000). The Court also
concluded that a material issue of fact remains regarding
whether federal funds were used to install crossbuck signs at
the Crossing. Accordingly, the Court DENIES
Plaintiffs' Motion in Limine regarding this evidence.
Court notes that Plaintiffs' desire, however, can be
advanced through a jury instruction. For example, the jury
can be instructed that if they find federal funds were not
used to install crossbuck signs at the Crossing, then Norfolk