The opinion of the court was delivered by: MATHEW KENNELLY, District Judge
MEMORANDUM OPINION AND ORDER
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
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
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
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
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
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
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
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
A: I did.
Q: And you also relied on that in
reaching your conclusions here, isn't
A: I did.
Q: And you would agree that both those
agencies looked at the activities of
Mr. Stokes [the truck driver], is that
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
Q: And you reviewed and relied upon
that final NTSB report, isn't that
A: Yes. Q: You rely on the facts in it?
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.
MR. LANDMAN: Okay.
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
A: I would agree. Q: And you did it very carefully, isn't
A: The best I could.
Q: Okay, other than you, is there
anyone who criticized Mr. Flores'
A: I don't know if anyone else was
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
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
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
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
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 ...