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May 26, 2004.

DEBRA DOWE, Independent Administrator of the Estate of Sheena Dowe, Deceased, et al., Plaintiffs,
NATIONAL RAILROAD PASSENGER CORP., d/b/a Amtrak, et al., Defendants

The opinion of the court was delivered by: MATHEW KENNELLY, District Judge


This case arises from the collision of Amtrak's "City of New Orleans" train with a truck and trailer near Bourbonnais, Illinois on March 15, 1999. Eleven passengers of the train were killed in the collision, and many others were injured. The sixty-plus plaintiffs in this case, who included representatives of several of the deceased passengers as well as many of the injured passengers, sued Amtrak, claiming that its negligence and that of the locomotive engineer, Angel Flores, were the proximate cause of the collision, Amtrak denied liability and also filed third party claims for contribution against the owner of the truck, Melco Transfer Co.; John Stokes, the truck's driver; Birmingham Steel Co., which provided the load the truck was carrying; and Illinois Central Railroad, which was responsible for maintaining the track where the collision occurred.

The National Transportation Safety Board, a federal agency, investigated the collision and concluded that the truck driver was at fault in crossing the tracks even though warning lights were flashing. Plaintiffs' theory was that Amtrak did not have adequate procedures for its engineers to respond to obvious obstructions on the tracks, and that when the locomotive engineer saw the truck when he was approximately one-quarter mile from the crossing, he only sounded his horn and made no effort to apply the brakes. Because the train struck the rear portion of the truck's trailer, plaintiffs contended that if the engineer had applied the brakes, the truck and trailer would have made it across the tracks without being struck.

  The Court scheduled an "exemplar" trial of a number of the plaintiffs' claims, to begin on May 3, 2004. A few weeks before trial, all of the plaintiffs settled with Melco and Stokes, and the contribution claims against them were dismissed pursuant to the Illinois Contribution Among Joint Tortfeasors Act after the Court made a finding that the settlements had been made in good faith. Shortly before trial, a number of the plaintiffs settled with Amtrak. The cases of four plaintiffs proceeded to trial on May 3.

  Prior to trial, the parties filed several motions in limine. These included a motion by the plaintiffs to bar reference to the National Transportation Safety Board's opinions, findings, and conclusions regarding the cause of the collision on the grounds that such evidence was barred by federal law. After briefing and oral argument, the Court made the following ruling on April 26, 2004:
The Court grants the plaintiffs' request to bar reference to the opinions, findings, and conclusions reached by the National Transportation Safety Board in its investigation regarding the collision. Such evidence is unequivocally barred by federal statute and regulation. Under 29 U.S.C. § 1154(b), "[n]o part of a report of the Board, related to an accident or an investigation of an accident, may be admitted into evidence or used in a civil action for damages resulting from a matter mentioned in the report." Regulations promulgated by the NTSB establish that although its employees may testify regarding factual information they obtained during the course of an investigation, including factual evaluations, they may not testify about their conclusions or opinions, See § 49 C.F.R. § 835.3(c), (e). Based on these regulations, "[c]ourts have consistently held that `the factual portions of a NTSB report are admissible into evidence, while excluding any agency conclusions on the probable cause of the accident.'" Major v. CSX Transportation, 278 F. Supp.2d 597, 603-04 (D. Md. 2003) (quoting Hurd v. United States, 134 F. Supp.2d 745) 750 (D.S.C. 2001), aff'd, 34 Fed. Appx. 77 (4th Cir. 2002), and citing Travelers Ins. Co, v. Riggs, 671 F.2d 810, 816 (4th Cir. 1982)). See also Barna v. United States, 183 F.R.D, 235, 237 (N.D. Ill. 1998) (barring reference by any party, witness, or attorney to conclusions contained in NTSB report). Amtrak contends that it should be able to cross examine the plaintiffs' expert witnesses with the NTSB's report and conclusions because they reviewed it; Amtrak claims the plaintiffs' experts have reached conclusions contrary to those made by the NTSB. At oral argument, however, Amtrak's counsel conceded that he could cite no case supporting his argument that the law permits such use of an NTSB report. Acceptance of Amtrak's position would allow it to bring in through the back door what it is precluded from bringing in through the front, and it would effectively abrogate § 1154(b). The Court does not believe that the plaintiffs have waived § 1154(b) by having their experts review the NTSB report. Plaintiffs' motion is therefore granted.
Dowe v. Nat'l R.R. Passenger Corp., No. 01 C 5808, 2004 WL 887410, at *6 (N.D. Ill. Apr. 26, 2004).

  The process of selecting the jury began seven days later, on May 3, 2004. Approximately forty-three prospective jurors appeared that day and completed a detailed questionnaire prepared by the parties, The following day, forty of the prospective jurors returned to court and were questioned by the Court and the parties. A jury of twelve was selected. Opening statements began on May 4 and continued on the morning of May 5. The evidence began on May 5.

  In opening statement, Amtrak's counsel said the following:
So, what do the plaintiffs want you to believe? They want you to believe that Angel Flores, a victim himself, is the one who caused the accident.
First of all, this is — their professional opinion witnesses — that's what they are, they're people they're paying to come in and testify — disagree with all the federal and state investigators by blaming Angel Flores, because all the federal investigators and state investigators who looked at this accident did not criticize Angel Flores at all. It's only Mr. Demetrio's high-paid experts, and here's what they're going to tell you.
Trial Tr. 40 (emphasis added). Plaintiffs' counsel made no contemporaneous objection to counsel's reference to the conclusions of "federal investigators." After Amtrak's counsel had concluded his opening statement, however, plaintiffs' counsel moved for a mistrial, arguing that Amtrak's counsel had violated the Court's in limine ruling "with respect to findings by the federal government." Trial Tr. 68. Amtrak's counsel responded that his comment about "investigators" in opening statement was intended to refer not to the NTSB, but rather to the Federal Railroad Administration. Trial Tr. 69. The Court denied the motion for mistrial, but our comments were hardly an endorsement of counsel's remarks'.
THE COURT: He's talking about the FRA, not the NTSB, I mean, you're educating me on this stuff, so I don't know — I assume that's two different things.
I don't think it's a basis for a mistrial. We'll see if the evidence comes in. I mean, I don't know that there's a statute that covers the FRA like it does on the NTSB. I don't know if the evidence is coming in or not. The jury has been told that the opening statements are not part of the evidence. The motion for mistrial is denied.
Trial Tr. 69,
  On May 6, during his cross-examination of plaintiff's expert Richard Beall, a crucial witness, Amtrak's counsel asked the following series of questions:
Q: And you reviewed the NTSB factual locomotive event recorder information, isn't that right?
A: I did. Q: And you also reviewed the total NT SB report that Mr. Durkin sent you, in fact, a color copy, I think you said yesterday?
A: I did.
Q: And you relied on some of the NTSB information in reaching your opinion, isn't that right?
A: Best I could.
Q: Because I think you spent at least five hours or six hours reviewing the NTSB information, is that right?
A: It's very voluminous, yes.
Q: And you also reviewed the Illinois State Police traffic reconstruction report?
A: I did.
Q: And you also relied on that in reaching your conclusions here, isn't that right?
A: I did.
Q: And you would agree that both those agencies looked at the activities of Mr. Stokes [the truck driver], is that right?
A: I would agree,
Q: You know, before — and you would agree that they also looked at the activities of Angel Flores [the locomotive engineer] before; isn't that right?
A: Correct,
Q: And you reviewed and relied upon that final NTSB report, isn't that right?
A: Yes. Q: You rely on the facts in it?
A: Yes.
Q: And you would agree with me that neither the state or federal reports had any criticism of Mr. Flores?
Trial. Tr. 369-71 (emphasis added). At this point, counsel for plaintiffs objected. The Court, concluding that Amtrak's counsel had violated the in limine ruling, pointedly sustained the objection and directed the jury to disregard the question:
THE COURT: The objection is sustained, Mr. Landman, the objection is sustained.
THE COURT: The jury is directed to disregard that question. As I told you before, questions are not evidence.
Trial Tr. 371-72.
  Counsel's cross examination of Beall continued without significant incident until the very end. As the time for a mid-morning break was approaching, the Court asked counsel after a particular question and answer whether he had reached a good place to pause. Counsel replied that his cross examination was nearly finished: "I have two more questions. . . ." Trial Tr. 389. He then asked the following questions:
Q: Just because I wasn't sure you were going to bring the whole thing from . . . from Florida, I've brought your entire file. Does that look about right? I don't want it to fall off. Why don't I take —
A: About the same thickness as what I've got in the bag.
Q: Okay, And you spent a good amount of time and got paid a good amount of money for reviewing that, isn't that right?
A: I would agree. Q: And you did it very carefully, isn't that right?
A: The best I could.
Q: Okay, other than you, is there anyone who criticized Mr. Flores' train handling?
A: I don't know if anyone else was asked to?
Q: Well, you know that (here were federal and state regulators spending a tot of tints looking at this report, isn't that right?
Trial Tr. 389-90 (emphasis added).*fn1 At this point, plaintiff's counsel objected, and the Court sustained the objection and had the jury removed.

  After the jury had left, plaintiffs' counsel moved for a mistrial, arguing that Amtrak's counsel had deliberately ignored the Court's in limine ruling on two occasions. Trial Tr. 391, Amtrak's counsel agreed that it was "very clear that we were not allowed to refer to the conclusions in the report," but he contended that in asking the question he had been referring only to the factual determinations of the NTSB, which the Court had said could be introduced. Id. The Court expressed skepticism at this explanation, pointing out that counsel was inquiring whether any federal regulator had criticized Flores: `"How is that not a conclusion, when you've made it clear to them that the federal regulators includes the NTSB?" Counsel replied that the term "federal regulators" also included the Federal Railroad Administration (we note, for reasons that will become apparent momentarily, that counsel made no claim at this point that the term "federal regulator" did not include the NTSB), Id.

  The Court continued to press Amtrak's counsel to explain how it was that his question could be interpreted other than as a reference to the NTSB's conclusions. Counsel's next line of defense was that the plaintiff's had introduced the NTSB into the case in their questioning of Beall regarding the agency's findings about the train's event recorder (commonly known as a "black box") — suggesting that plaintiff's had opened the door to inquiry in the prohibited area. Trial Tr. 392-93. The Court pointed out that Amtrak had made no objection to plaintiffs' questioning of Beall and again insisted on a direct response from counsel:
THE COURT: [W]ith all due respect to you, Mr. Landman, I have now asked you the question twice, and I'm going to ask it a third time; and I am going to insist on a direct answer, so let me pose it again, sir. Explain to me how it is that when you ask a witness, after eliciting from him that the NTSB did an investigation and you ask a witness, "Isn't it a fact that nobody other than you criticized Mr. Flores's handling of the train," explain to me how it is that that's not a comment or not asking for evidence of the NTSB's conclusions?
MR. LANDMAN: Because the Illinois —
THE COURT: Are you saying that it is but you're allowed to do it, or are you saying it isn't? Which one?
MR. LANDMAN: No, I'm saying it's not. I did not do that.
THE COURT: Explain why.
MR. LANDMAN: Because the Illinois State Police did an investigation. The Illinois Commerce Commission did an investigation. The Federal Railroad Administration did an investigation. He has all that.
THE COURT: But you didn't ask him, "Isn't it a fact that the Federal Railroad Administration, the ICC, and the Illinois State Police didn't find Flores." You said, "Isn't it a fact that no regulator found Mr. Flores at fault or criticized his actions."
MR. LANDMAN: Well, your Honor, I don't think that was introducing what the NTSB concluded.
THE COURT: I have to say it's hard for me to see how you can make that argument with a straight face, Mr. Landman. MR. LANDMAN: Well, your Honor, I do apologize.
Trial Tr. 393-94.

  After this exchange, Amtrak's counsel returned to his "opening the door" claim. The Court rejected the argument, noting that the plaintiffs' introduction of the NTSB's factual findings was specifically permitted by the in limine ruling and thus could not be said to have opened the door to the matters excluded. The Court also observed that even if counsel felt the door had been opened, it was incumbent upon him to seek permission to go into the NTSB's conclusions before contravening the Court's in limine ruling. Trial Tr. 395, 397-99, Further colloquy took place regarding this issue. Trial Tr. 399-400. Then, at the conclusion of this lengthy discussion, counsel stated that "I don't think of the NTSB as regulators" and claimed he had not intended to refer to the NTSB when he asked Beall about "regulators." Trial Tr. 403. This comment at the end of the lengthy argument was the first time counsel had advanced this contention.

  After taking a break to consider the matter, the Court returned and granted plaintiffs' motion for mistrial. The Court ordered Amtrak and its counsel to show cause why they should not be sanctioned pursuant to the Court's inherent authority and/or 28 U.S.C. § 1927 due to the violations of the in limine order. Trial Tr. 404-06, Amtrak ...

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