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Jenkinson v. Norfolk Southern Railway Co.

United States District Court, S.D. Indiana, Indianapolis Division

April 17, 2017

RUTH ANN JENKINSON and JOE JENKINSON, Plaintiffs,
v.
NORFOLK SOUTHERN RAILWAY COMPANY Defendant.

          ENTRY ON MOTIONS IN LIMINE

          TANYA WALTON PRATT, JUDGE

         This 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.

         I. BACKGROUND

         Mrs. 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.

         Following 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 No. 104.)

         In 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.

         II. LEGAL STANDARD

         “[J]udges 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.

         III. DISCUSSION

         The parties' respective requests for orders in limine to prohibit the introduction of certain testimony and evidence at trial are addressed below.

         A. Plaintiffs' Motion in Limine (Filing No. 95).

         Plaintiffs 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.

         1. Any reference to Plaintiffs' Motion in Limine.

         Plaintiffs' 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 GRANTED.

         2. Any reference to benefits from a collateral source.

         Plaintiffs 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 is brought.

Ind. Code Ann. § 34-44-1-2. Plaintiffs' unopposed request to exclude any reference to benefits from a collateral source is GRANTED.

         3. Any reference to Norfolk being personally liable for damages.

         Plaintiffs' unopposed request to prohibit any reference to Norfolk being personally liable to pay any judgment rendered in this case, is GRANTED.

         4. Any reference to photographs, articles, or demonstrative video tapes without tendering such exhibits to the Court and Plaintiffs' counsel outside the presence of the jury.

         Plaintiffs 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 requirement.

         5. Any reference to Plaintiffs' prior claims for personal injury, workers' compensation, or other benefits.

         Plaintiffs' 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 GRANTED.

         6. Any reference to pre-judgment interest.

         Plaintiffs' unopposed request to prohibit any reference to pre-judgment interest that will be added to any actual damages awarded in this case is GRANTED.

         7. Any reference to Plaintiffs dismissing previously alleged claims against previously named defendants, including The Andersons, Inc.

         Plaintiffs 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.

         8. Any reference to Plaintiffs' jury consultant.

         Plaintiffs' unopposed request to prohibit any reference to Plaintiffs hiring of a jury consultant is GRANTED.

         9. Any testimony from Carl Sanders or any other expert witness who was not disclosed during discovery.

         Plaintiffs 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.

         The 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.

         10. Any testimony from fact witnesses who were not disclosed during discovery.

         Plaintiffs' 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 both parties.

         11. Any testimony that Norfolk did not have a responsibility or obligation to warn motorists of an extra-hazardous crossing.

         Plaintiffs 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.

         The 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 ...


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